author: THOMPSON, Presiding Judge.

text:
    Ronnie Joe WEEKS and Sally Patterson v. Warren C. HERLONG.
    2080290.
    Court of Civil Appeals of Alabama.
    Aug. 21, 2009.
    James G. Curenton, Jr., Fairhope, for appellants.

      J. Casey Pipes and D. Andrew Stivender of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

Ronnie Joe Weeks and Sally Patterson appeal from the judgment of the Baldwin Circuit Court entered in favor of Warren C. Herlong following a bench trial. For the reasons stated herein, we affirm.

This appeal concerns an attempt by Weeks and Patterson to obtain litigation expenses pursuant to § 18-1A-232, Ala. Code 1975, based on the outcome of a prior action (“the condemnation action”) in which Herlong sought to condemn a right-of-way across their property pursuant to the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala.Code 1975. The judgment in the condemnation action was appealed to our supreme court; the opinion in that appeal, Weeks v. Herlong, 951 So.2d 670 (Ala.2006), contains a detailed factual history of the dispute between the parties. We set forth below the relevant aspects of the factual and procedural history necessary for the resolution of this appeal.

Weeks and Patterson are siblings. They owned a parcel of land that was adjacent to a parcel of land owned by Herlong. Herlong owned two easements that led to his property; however, a small gap between the two easements, which was located on Weeks and Patterson’s property and which has been referred to as “the gap property” throughout the course of the parties’ litigation, prevented those easements from connecting to one another. Thus, because of the gap property, Her-long was unable to use those easements to access his property without trespassing on Weeks and Patterson’s property.

In 2003, Herlong filed a petition in the Baldwin Probate Court to condemn a private right-of-way easement across the gap property in order to join the two easements. The probate court entered a judgment condemning the gap property and requiring Herlong to pay Weeks and Patterson $2,000 as compensation for the taking. Weeks and Patterson appealed the judgment to the Baldwin Circuit Court for a trial de novo. In the original complaint that he filed in the circuit court, Herlong sought condemnation of a right-of-way over the gap property. During the course of the litigation in the circuit court, Her-long amended his complaint to add a count alleging that he had an easement by prescription over the gap property. After a hearing, the circuit court entered a judgment in which it found that Herlong had established a prescriptive easement over the gap property. It further found that Herlong was not entitled to relief under the aspect of his complaint seeking condemnation of the gap property for purposes of a right-of-way.

Weeks and Patterson appealed the circuit court’s judgment to our supreme court, which affirmed that judgment. Particularly pertinent to the present appeal, our supreme court quoted a portion of the proceedings in the circuit court relative to the basis of the circuit court’s decision not to grant relief to Herlong on the count of his complaint seeking condemnation of the gap property:

“‘[Trial judge:] Well, I’ll tell y’all, I don’t know anything about private condemnations. So, I mean, I’ve never handled one of those. I’ve handled easements before. I’ve dealt with that but I don’t know how to handle a private condemnation. I would assume that if an easement is established, then there’s no need for a private condemnation so based on my ruling that the prescriptive easement did exist, I’m gonna deny the claim for this private condemnation.’ ”

Weeks, 951 So.2d at 677 (emphasis added).

Following the supreme court’s affir-mance, Weeks and Patterson instituted the present action against Herlong. They sought an award of litigation expenses pursuant to § 18-1A-232, Ala.Code 1975, which provides:

“(a) The court shall award the defendant his litigation expenses,[] in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.
“(b) If the scope of the property to be taken is reduced as the result of (1) a partial dismissal, (2) a dismissal of one or more plaintiffs, or (3) a final judgment determining that the plaintiff cannot take part of the property originally sought to be taken, the court shall award the defendant the portion of his litigation expenses attributable to the property within the scope of the reduction.
“(c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions.”

Weeks and Patterson argued that an award of litigation expenses to them was justified because the circuit court in the condemnation action did not provide for the statutory condemnation of a right-of-way easement over the gap property as Herlong had received in the probate court and as he had sought in his circuit court complaint.

After an ore tenus hearing, the trial court entered a judgment denying Weeks and Patterson’s request for litigation expenses. In its judgment, the trial court wrote, in pertinent part:

“1. Judgment is hereby entered in favor of the Defendant, Warren Her-long, on [Weeks and Patterson’s] claim for attorney’s fees and litigation expenses incurred in the previous lawsuit. The Court finds that Warren Herlong prevailed in the previous lawsuit at the Probate, Circuit and Supreme Court levels, and therefore an award of litigation expenses and attorney’s fees to [Weeks and Patterson], who were not the prevailing parties, would be inappropriate and unjustified.”

Weeks and Patterson appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Weeks and Patterson contend that, because the circuit court in the condemnation action denied relief to Her-long on the count of his complaint seeking condemnation of the gap property, they were entitled, by the terms of § 18-1A-232, Ala.Code 1975, to an award of their litigation expenses. Citing Carroll v. Ward, 814 So.2d 287, 290 (Ala.Civ.App.2001), they point out that the use of the word “shall” in the statute indicates that the award of such expenses is mandatory, not discretionary, and that, in failing to award litigation expenses, the trial court failed to follow the plain language of the statute. We disagree.

In Paulk v. McCarty, 855 So.2d 1123 (Ala.Civ.App.2003), this court wrote:

“As we noted in Williams v. Deerman, 724 So.2d 18, 20 (Ala.Civ.App.1998), the same principles and procedures set forth in the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala. Code 1975, governing eminent-domain actions in general govern actions brought by private parties to condemn a right-of-way easement pursuant to § 18-3-1 et seq., Ala.Code 1975. With respect to the issue raised by the parties in this case, § 18-1A-232, a part of the Eminent Domain Code, provides for an award in certain cases of ‘litigation expenses,’ which would include reasonable attorney, appraisal, and engineering fees necessary to participation in probate-court or circuit-court condemnation proceedings. See § 18 — 1A.—3(12), Ala.Code 1975.”

Paulk, 855 So.2d at 1126. The effect of the circuit court’s judgment in the condemnation action was to award Herlong, by virtue of common law, an easement for ingress and egress over the gap property that, for all intents and purposes, was identical in scope to both the statutory condemnation ordered by the probate court and the statutory condemnation Her-long sought in the circuit court. Moreover, far from constituting a victory for Weeks and Patterson, the circuit court’s judgment actually precluded them from being compensated for the taking of an easement over the gap property as had been ordered by the probate court.

Because the circuit court in the condemnation action did not dismiss the condemnation count, § 18-lA-232(a) is not applicable; thus, the basis for an award of litigation expenses in this case arises, if at all, through the treatment by § 18-1A-232(b) of a judgment that reduces the “scope of the property to be taken.” See Paulk, 855 So.2d at 1126-27 (holding that when a circuit court’s judgment results in the reduction of the scope of the right-of-way sought in a statutory condemnation proceeding to nothing, § 18-lA-232(b), rather than § 18-lA-232(a), is applicable with regard to an award of litigation expenses). The statute, by its terms, does not address a situation like the present one, where a party obtains the same right-of-way by prescription that, in the same action, he or she sought through statutory condemnation. Caselaw applying § 18-1A-232 also fails to shed light on the application of that statute in the context presented by this case.

Our primary focus when construing and applying a statute is to effectuate the intent of the legislature. See City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006). In so doing, we will “ ‘read the concept of reasonableness into the provisions of the statute ....’” Smith v. Smith, 964 So.2d 663, 670-71 (Ala.Civ.App.2005) (quoting Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001)). We also note that “[i]f a literal construction [of a statute] would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided.” City of Bessemer, 957 So.2d at 1075.

As it pertains to the present case, § 18-lA-232(b) provides that litigation expenses are recoverable by the person whose property is sought to be taken for the creation of a right-of-way easement “if the scope of the property to be taken is reduced” by a final judgment. Although the statute does not define the phrase “scope of the property to be taken is reduced,” we construe that phrase to mean that the result of the judgment must, at the very least, reduce the size of the right-of-way easement sought and result in the owner of the property keeping more of his or her property free from the right-of-way easement than what was proposed to have been taken through the action.

Applying our interpretation of § 18-1A-232(b) to the present case, we conclude that, even though the circuit court in the condemnation action awarded an easement to Herlong based on common-law prescription rather than on statutory condemnation, the circuit court’s judgment did not reduce or in any other way alter the size and scope of the right-of-way easement sought by Herlong. As a result, the trial court in the present action correctly determined that Weeks and Patterson were not entitled to the litigation expenses they had incurred in the condemnation action, and its judgment is affirmed.

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . For purposes of § 18-1A-232, litigation expenses are defined as 'Tt]he sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or participation in actual probate or circuit court proceedings.” § 18 — 1 A — 3(12).

      . Herlong filed a counterclaim on which the trial court granted relief in his favor in its final judgment. Because Weeks and Patterson do not appeal from that aspect of the final judgment, we pretermit discussion of that matter.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Wayne GATLIN v. Marvin JOINER et al.
    2080611.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.

      M. Scott Harwell, Birmingham, for appellant.
    Debra H. Coble and Frank V. Potts of Potts & Young Attorneys, L.L.P., Florence, for appellees.
   BRYAN, Judge.

Wayne Gatlin, the plaintiff below, appeals from an interlocutory order insofar as it partially granted the summary-judgment motion of the defendants below, Marvin Joiner, Rose Neal, and Jerry Frank Neal, and from a final judgment insofar as it partially denied Gatlin’s claim seeking a permanent injunction. We reverse and remand.

Factual Background and Procedural History

The dispute in this case concerns a gore of land (“the gore”) containing approximately one-half acre. The gore is located in the northeast quarter of Section 81 in Lauderdale County (“Section 31”), is bounded on the north, south, and west by Bluewater Creek, and is bounded on the east by the section line (“the section line”) separating Section 31 from Section 32 in Lauderdale County (“Section 32”).

In 1973, Maybelle Sledge Herston executed a deed purporting to convey to Virginia Herston Stacey Gant the gore and a portion of the northwest quarter of Section 32, which lies immediately east of the gore. In 1993, Gant subdivided her land into lots, which she sold to, among others, Joiner and the Neals.

In May 1995, Gatlin’s parents signed a deed purporting to convey to him and his wife, Hattie B. Gatlin, the entire gore and a portion of the northeast quarter of Section 31 in Lauderdale County that was located west of Bluewater Creek. Subsequently, in May 1995, Gatlin discovered that Joiner was building improvements on the portion of the gore that Joiner’s deed purpoi'ted to include in his lot; Gatlin asked Joiner to cease building those improvements on the gore, but Joiner continued building them. Thereafter, the Neals began building improvements on the portion of the gore that their deed purported to include in their lot. In 1996, Gatlin brought a boundary-line action (“the boundary-line action”) against Joiner and the Neals, seeking a determination that the section line was the boundary line between his land, on the one hand, and Joiner’s and the Neals’ land, on the other. Gatlin did not state any tort claims or claims seeking injunctive relief in the boundary-line action.

Joiner and the Neals admitted, in the boundary-line action, that Gatlin owned record title to the gore; however, they claimed that their predecessors in title had acquired ownership of the gore through adverse possession and had conveyed their ownership interests in the gore to Joiner and the Neals.

The boundary-line action went to trial on the sole issue whether Joiner and the Neals’ predecessors in title had adversely possessed the gore. Having heard the evidence in a bench trial, the trial court, in August 1999, entered a judgnent determining that Joiner and the Neals had not proved that their predecessors in title had adversely possessed the gore and that, therefore, the section line was the boundary line between Gatlin’s land, on the one hand, and Joiner’s and the Neals’ land, on the other. Joiner and the Neals did not appeal the judgment entered by the trial court in the boundary-line action.

In 1999, Joiner and the Neals, in separate actions (“the fraud actions”) sued various defendants, stating claims of fraud based on the allegation that the defendants had misrepresented to Joiner and the Neals that the lots they were buying bordered on Bluewater Creek when, in fact, they were separated from Bluewater Creek by the gore, which Gatlin owned. Joiner and the Neals did not name Gatlin as a party in the fraud actions. The defendants in the fraud actions moved for summary judgments on the ground that there had been no misrepresentation because Joiner’s and the Neals’ predecessors in title had indeed owned record title to the gore and had conveyed it to Joiner and the Neals. The trial court granted the defendants’ summary-judgment motions; Joiner and the Neals did not appeal those summary judgments.

On July 18, 2002, Gatlin brought the present action against Joiner, the Neals, and various other defendants. Gatlin’s original complaint stated claims of trespass, slander of title, ejectment, conversion, negligence, and wantonness and demanded a trial by jury. He later amended his complaint to add a claim seeking an easement by necessity and a claim seeking a permanent injunction enjoining Joiner and the Neals from trespassing on the gore in the future.

Answering Gatlin’s complaint, as amended, Joiner and the Neals denied liability and asserted, as an affirmative defense, that Gatlin’s trespass action was barred by the applicable statute of limitations. They did not assert, as an affirmative defense, that any of Gatlin’s claims were barred by the doctrines of res judicata or collateral estoppel. Subsequently, Joiner and the Neals moved the trial court for a summary judgment on the ground that Gatlin could not prevail on his claims because, they said, he did not own title to a portion of the gore. In support of their summary-judgment motion, Joiner and the Neals submitted an affidavit signed by Clint Wilkes (“the Wilkes affidavit”), an employee of The Abstract & Title Company of Florence, Inc., which does business in Lauderdale County. In pertinent part, that affidavit stated:

“6. I recently reviewed the title to a tract of property owned by Thomas Wayne Gatlin and [his wife], ... As stated in the [1995 deed in which Gat-lin’s parents conveyed this tract of property to Gatlin and his wife], this property is located in the Northeast Quarter of Section 31, Township 2 South, Range 8 West, in Lauderdale County, Alabama.[] In addition to reviewing the title to this tract of property, I also reviewed the title to adjoining property located in the Northwest Quarter of Section 32, Township 2 South, Range 8 West, in Lauder-dale County, Alabama.
“7. In reviewing the title to the property now owned by the Gatlins, I discovered that this property was originally owned by B.W. Cunningham and Turner Cunningham. On January 16, 1920, the Cunninghams conveyed an easement to the United States of America with a perpetual right to permanently flood all of that portion of the Northeast Quarter of Section 31, Township 2 South, Range 8 West, lying below the 505-foot contour line as referenced by a survey of the United States Engineers in 1895. ... The 505-foot contour line referenced in this instrument was subsequently determined to have been erroneously established, and was actually the 509.34-foot elevation [contour] line adopted by the United States.[]
“8. On January 25, 1943, the Cun-ninghams executed a deed in which they conveyed the east half of the Northeast Quarter of Section 31, Township 2 South, Range 8 to Willie E. Gibson. Excepted from this conveyance was all of that tract of land lying below the 505-foot [contour] line ....
“9. After reviewing the above referenced instruments, I continued my search of the title to this tract of property. There were numerous conveyances of the property between 1943 and 1970, and none of those instruments excepted from their descriptions the property which the Cunninghams conveyed to the United States. In 1970, Julian A. Nance and Martha L. Nance conveyed the property to [Gatlin’s parents]. ... Unlike the previous deeds, the description in this instrument was subject to the exception for the property previously conveyed by the Cunninghams to the United States. On November 18, 1970, [Gatlin’s parents] conveyed 70 acres of this property to [Gatlin and his wife]. ... Furthermore, the [1995] deed in which Thomas Wayne Gatlin and [his wife] obtained title to the [tract of] property [that included the gore] did not contain such an exception.
“10. The [title company I work for] has conducted title seai’ehes on the property owned by the Gatlins over the course of many years. Each and every abstract prepared by this company contained a reference to the conveyance from the Cunninghams to the United States of America. On March 30, 1995, [this company] updated its abstract for Mr. Gatlin. In the materials provided to Mr. Gatlin, the conveyance from the Cunninghams to the United States was shown. Furthermore, the conveyance from the Cunninghams to Mr. Gibson was shown, excepting the property previously conveyed to the United States. As a matter of public record, the title to the property owned by the Gatlins shows that, as of the conveyance from the Cunninghams to the United States, all property located within that legal description and lying below the 505-foot contour line (now 509.3h-foot contour line) was not within their chain of title.”

(Emphasis added.)

In opposition to Joiner and the Neal’s summary-judgment motion, Gatlin asserted that, pursuant to the doctrine of res judicata, the judgment entered in the boundary-line action, which, he said, had determined that he owned the gore, barred Joiner and the Neals from contesting Gat-lin’s ownership of the gore in this action.

Following a hearing, the trial judge entered an order (1) granting the summary-judgment motion with respect to Gatlin’s claims of slander of title, ejectment, conversion, and easement by necessity; (2) granting the motion with respect to Gat-lin’s trespass claim insofar as it was grounded on allegations that Joiner and the Neals had trespassed on the portion of the gore located below the 509.34-foot elevation contour line established by the federal government; and (3) denying the motion with respect to Gatlin’s trespass claim insofar as it was grounded on allegations that Joiner and the Neals had trespassed on the portion of the gore located above the 509.34-foot elevation contour line. The trial judge’s order did not purport to rule on the summary-judgment motion with respect to Gatlin’s claims of negligence and wantonness or his claim seeking a permanent injunction enjoining Joiner and the Neals from trespassing on the gore in the future.

Gatlin unsuccessfully petitioned the Alabama Supreme Court for permission to appeal the trial court’s interlocutory order regarding Joiner and the Neals’ summary-judgment motion. After the supreme court denied Gatlin’s petition, the action proceeded to trial before a jury. After both sides had rested, the trial judge charged the jury with respect to Gatlin’s trespass claim insofar as it sought damages grounded on allegations that Joiner and the Neals had trespassed on the portion of the gore located above the 509.34-foot elevation contour line; however, the trial judge did not charge the jury with respect to Gatlin’s claims of negligence and wantonness. The jury returned a verdict in favor of Gatlin and against Joiner and the Neals but awarded Gatlin only nominal damages. The trial judge entered a judgment on the jury verdict but did not rule on Gatlin’s claim seeking a permanent injunction enjoining Joiner and the Neals from trespassing on the gore in the future. Gatlin moved the trial judge to vacate the judgment he had entered on the jury’s verdict and to grant Gatlin a new trial; however, the trial court denied that motion. Within 42 days after the denial of that motion, Gatlin filed a notice of appeal to the supreme court. The supreme court transferred Gatlin’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975. This court dismissed that appeal because the absence of a ruling on the claim seeking a permanent injunction deprived the trial court’s judgment of finality. See Gatlin v. Joiner, 4 So.3d 1139 (Ala.Civ.App.2008).

Following this court’s dismissal of Gat-lin’s first appeal, the trial court entered an order granting Gatlin a permanent injunction enjoining Joiner and the Neals from trespassing in the future on the portion of the gore located above the 509.34-foot elevation contour line but denying him an injunction enjoining Joiner and the Neals from trespassing in the future on the portion of the gore located below the 509.34-foot elevation contour line. Gatlin filed a postjudgment motion challenging the partial denial of his claim seeking a permanent injunction, which the trial court denied. Gatlin then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6).

Law and Analysis

Gatlin argues that the trial court erred insofar as it granted Joiner and the Neals’ summary-judgment motion and denied his claim seeking a permanent injunction because, he says, the trial court based those rulings on evidence submitted by Joiner and the Neals that indicated that Gatlin did not own record title to the portion of the gore located below the 509.34-foot elevation contour line despite Joiner’s and the Neals’ being barred by the doctrine of res judicata from claiming that Gatlin did not own that portion of the gore. Joiner and the Neals concede that the doctrine of res judicata barred them from claiming that Gatlin did not own a portion of the gore; however, they argue (1) that the trial court did not have subject-matter jurisdiction over this action because, they say, indispensable parties were not joined in the action and (2) that the trial court’s rulings should be affirmed on grounds other than Joiner and the Neals’ claim that Gatlin did not own a portion of the gore.

We will first address Joiner and the Neals’ argument that the trial court did not have subject-matter jurisdiction over the action now before us because, they say, indispensable parties were not joined in the action. Specifically, Joiner and the Neals argue (1) that the United States is an indispensable party because, according to the Wilkes affidavit, the United States owns a perpetual easement allowing it to permanently flood the portion of the gore located below the 509.34-foot elevation contour line; (2) that the heirs of B.W. Cunningham and Turner Cunningham are indispensable parties because, according to the Wilkes affidavit, the Cun-ninghams retained title to the portion of the gore located below the 509.34-foot elevation contour line when they conveyed the rest of the gore to Willie E. Gibson in 1943 and, therefore, their heirs now own title to that portion of the gore; and (3) that Gatlin’s children are indispensable parties because Gatlin testified at trial that, after the entry of the judgment in the boundary-line action, he had conveyed a remainder interest in the gore to his children and had retained only a life estate in the gore. In Byrd Cos. v. Smith, 591 So.2d 844 (Ala.1991), the Alabama Supreme Court stated:

“Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the pi*o-motion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala.1979). Where the parties before the court adequately represent the absent parties’ interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Ross v. Luton, 456 So.2d 249, 257 (Ala.1984). Also, joinder of the absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties’ interest or where the action does not seek a judgment against them. Morgan Plan Co. v. Bruce, 266 Ala. 494, 497-98, 97 So.2d 805, 808 (1957). A defendant’s delay and its self-serving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party. J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983). See also, Geer Bros., Inc. v. Walker, 416 So.2d 1045, 1050 (Ala.Civ.App.1982).
“This Court has also held, however, that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined. Johnston v. White-Spunner, 342 So.2d 754, 759 (Ala.1977).”

591 So.2d at 846 (emphasis added).

In the action now before us, Gatlin neither seeks a judgment determining that his interest in the gore is superior to that of the United States, the Cunninghams’ heirs, or his own children, nor does he seek a judgment against them. Indeed, he claims that, for purposes of the action now before us, his title to the gore was determined by the judgment in the boundary-line action, a judgment that is not binding on the United States, the Cunninghams’ heirs, or Gatlin’s children because they were not made parties to the boundary-line action. See Austin v. Alabama Check Cashers Ass’n, 936 So.2d 1014, 1040 (Ala.2005) (“ Tt is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in person-am in a litigation in which he is not desig-natecl as a party or to which he has not been made a party by service of process.’ Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940).”). Moreover, Gatlin’s children, as remaindermen, have no right to possession of the gore while Gatlin is alive, see Hinesley v. Davidson, 335 So.2d 380, 382 (Ala.1976) (“As remainder-men, plaintiffs have no right to possession until the death of the life tenant.”); see also 51 Am.Jur.2d Life Tenants and Re-maindermen § 2 (2000) (“A remainder interest takes effect in possession or enjoyment immediately upon the termination of the prior estate.” (footnote omitted)), and, therefore, are not indispensable parties with respect to claims seeking to protect Gatlin’s right to possession of the gore. See 51 Am.Jur.2d Life Tenants and Re-maindermen § 3 (2000) (“Since a remain-derman has no right to possession of the property until the particular prior estate is terminated, he or she has no right to recover the possession or to obtain compensation for injuries to the possession, both of which depend upon having the right of possession, until he or she is entitled to possession.” (footnote omitted)). Accordingly, we conclude that, under the particular facts of the action now before us, the judgment of the trial court is not void due to the nonjoinder of the United States, the Cunninghams’ heirs, or Gatlin’s children.

We will next address Gatlin’s argument that the trial court erred in partially granting Joiner and the Neals’ summary-judgment motion and in partially denying his claim seeking a permanent injunction because, he says, the doctrine of res judicata barred Joiner and the Neals from claiming that Gatlin did not own a portion of the gore.

“The elements of res judicata, or claim preclusion, are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. Hughes v. Allenstein, 514 So.2d 858, 860 (Ala.1987). If those four elements are present, any claim that was or could have been adjudicated in the prior action is barred from further litigation.”

Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725 (Ala.1990) (emphasis added). “ ‘Res judicata applies not only to the exact legal theories advanced in the prior case, but to all legal theories and claims arising out of the same nucleus of operative facts.’ ” Old Republic Ins. Co. v. Lanier, 790 So.2d 922, 928 (Ala.2000) (quoting Wesch v. Folsom,, 6 F.3d 1465, 1471 (11th Cir.1993)).

For purposes of res judicata, Joiner and the Neals prosecuted, in the boundary-line action, a cause of action seeking a determination that Gatlin did not own the gore. Although the theory they asserted in the boundary-line action, i.e., that Gatlin did not own the gore because Joiner’s and the Neals’ predecessors in title had adversely possessed the gore, differed from the theory they asserted in the action now before us, i.e., that Gatlin did not own record title to the portion of the gore located below the 509.34-foot elevation contour line, both theories were encompassed within a single cause of action for purposes of res judicata. See Old Republic Ins. Co. v. Lanier, supra. Accordingly, the doctrine of res judicata barred Joiner and the Neals from claiming that Gatlin did not own record title to the portion of the gore located below the 509.34-foot elevation contour line based on the easement granted the United States in 1920 and the Cunninghams’ exception of that portion of the gore from their deed to Willie Gibson in 1943 because that claim could have been adjudicated in the boundary-line action. See Old Republic Ins. Co. v. Lanier, supra, and Dairyland Ins. Co. v. Jackson, supra.

However, Joiner and the Neals argue that, even though the doctrine of res judi-cata barred them from claiming in the action now before us that Gatlin did not own a portion of the gore, we should nonetheless affirm the trial court’s judgment on other grounds.

“[Tjhis Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment. Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element. Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found. P.C., 881 So.2d 1013, 1020 (Ala.2003).

Joiner and the Neals argue that we should (1) affirm the trial court’s summary judgment with respect to Gatlin’s trespass claim insofar as it was based on allegations that they had trespassed on the portion of the gore located below the 509.34-foot elevation contour line and (2) affirm the trial court’s denial of Gatlin’s claim seeking a permanent injunction insofar as it sought an injunction enjoining Joiner and the Neals from trespassing on the portion of the gore located below the 509.34-foot elevation contour line on the ground that Gatlin’s trespass claim was barred by the applicable six-year statute of limitations. Because Joiner and the Neals pleaded the statute of limitations as an affirmative defense to Gatlin’s trespass claim in their answers to his complaint, we could affirm the trial court’s judgment on that ground if it is meritorious. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., supra. However, we conclude that it is not meritorious.

In Alabama Power Co. v. Gielle, 373 So.2d 851, 854 (Ala.Civ.App.1979), this court stated:

“A structure maintained on another’s property is a continuing trespass. 87 C.J.S. Trespass § 13 (1954). A continuing trespass creates successive causes of action, and damages may be recovered for the trespass occurring within the statutory period. 13 Ala. Digest Limitation of Actions § 55(6); 54 C.J.S. Limitations of Actions § 169 (1948).”

In the action now before us, Gatlin claims that Joiner had trespassed on the portion of the gore located below the 509.34-foot elevation contour line by, among other things, building a boat dock and a boat ramp, which Joiner allegedly refused to remove despite the entry of the judgment in favor of Gatlin in the boundary-line action. Gatlin claims that the Neals had trespassed on the portion of the gore located below the 509.34-foot elevation contour line by, among other things, building a boat dock. The building of those structures constituted a continuing trespass, and, therefore, the statute of limitations did not bar the recovery of damages for the trespass caused by those structures within six years of the date Gatlin filed his trespass action.

Joiner and the Neals also argue that we should affirm the trial court’s summary judgment with respect to Gatlin’s slander-of-title claim because, they say, that claim was barred by the applicable statute of limitations. However, we cannot affirm the trial court’s summary judgment with respect to Gatlin’s slander-of-title claim based on the statute of limitations because Joiner and the Neals failed to plead the statute of limitations as an affirmative defense to Gatlin’s slander-of-title claim in their answers to Gatlin’s complaint. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., supra.

In addition, Joiner and the Neals argue that we should affirm the trial court’s summary judgment with respect to Gatlin’s slander-of-title claim because, they say, he cannot prove some of the elements of that claim. However, Joiner and the Neals did not assert that alleged failure of Gatlin’s evidence as a ground of their summary-judgment motion and, therefore, did not shift to Gatlin the burden of producing substantial evidence in support of those elements. Id. Consequently, we cannot affirm the summary judgment on the basis of the alleged failure of Gatlin’s evidence with respect to those elements. Id.

Joiner and the Neals argue that we should affirm the trial court’s summary judgment with respect to Gatlin’s conversion claim because, they say, that claim seeks to recover for the taking of property that has become a fixture or a part of the real property and “[a]n action for conversion will not lie for the taking of real property, nor will it lie for the taking of personal property that has been incorporated into real property.” Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 805 (Ala.1991) (citations omitted). However, this argument asserts a failure of Gatlin’s evidence regarding an element of his conversion claim, i.e., a taking of personal property. Because Joiner and the Neals did not assert that alleged failure of Gatlin’s evidence as a ground of their summary-judgment motion, they did not shift to Gatlin the burden of producing substantial evidence in support of that element. See Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., supra. Therefore, we cannot affirm the trial court’s summary judgment with respect to Gatlin’s conversion claim on the basis of that alleged failure of Gat-lin’s evidence. Id.

Joiner and the Neals argue that we should affirm the trial court’s summary judgment with respect to Gatlin’s ejectment claim on the basis of an alleged failure of Gatlin’s evidence regarding some of the elements of his ejectment claim. Once again, however, Joiner and the Neals did not assert the alleged failure of Gat-, lin’s evidence with respect to those elements as a ground of their summary-judgment motion and, therefore, did not shift to Gatlin the burden of producing substantial evidence in support of those elements. Id. Consequently, we cannot affirm the trial court’s summary judgment with respect to Gatlin’s ejectment claim on the basis of the alleged failure of Gatlin’s evidence with respect to those elements. Id.

Accordingly, we reverse the trial court’s judgment insofar as it granted Joiner and the Neals’ summary-judgment motion and insofar as it denied Gatlin’s claim seeking a permanent injunction, and we remand the action to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Gatlin has not appealed the adverse dispositions of his claims against the other defendants.

      . The gore was contained within the tract of property described in this 1995 deed.

      . The easternmost .14 acre of the gore is located above the 509.34-foot elevation contour line; the balance of the gore is located below the 509.34-foot elevation contour line.

      . This 70-acre parcel was located in the western half of the northeast quarter of Section 31 and did not include the gore.

      . We do not have before us the issue whether any of Gatlin’s claims in the action now before us are barred by the doctrines of res judicata or collateral estoppel because Joiner and the Neals did not plead the doctrines of res judicata or collateral estoppel as affirmative defenses in their answers to Gatlin’s complaint. Subject to exceptions not here applicable, a party's failure to plead an affirmative defense in his or her answer waives that affirmative defense. See Robinson v. Morse, 352 So.2d 1355, 1356-57 (Ala.1977).


text:
    KLW ENTERPRISES, INC. v. WEST ALABAMA COMMERCIAL INDUSTRIES, INC.
    2080563.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.

      Cynthia Lee Almond, Tuscaloosa, for appellant.
    Jeffrey C. Smith and Katie B. Thompson of Rosen Harwood, P.A., Tuscaloosa, for appellee.
   BRYAN, Judge.

The plaintiff below, KLW Enterpi-ises, Inc. (“KLW”), appeals from a summary judgment in favor of the defendant below, West Alabama Commercial Industries, Inc. (“West Alabama”). We affirm.

On December 4, 2007, KLW and West Alabama entered into a contract in which KLW agreed to refurbish 40 apartment units in Marengo County. The work to be performed by KLW consisted of (1) removing the old doors, windows, and associated hardware and installing new doors, windows, and hardware; (2) installing new vinyl siding and shutters; and (3) painting the interior and exterior of the units. The total contract price for the project was $401,850. A subsequent change order increased the contract price to $451,850.

On December 12, 2007, KLW and West Alabama entered into a contract in which KLW agreed to perform the same kind of work on 34 apartment units in Macon County for a total price of $364,763. KLW was not licensed as a general contractor in Alabama when it entered into those contracts.

KLW commenced performing the work required by the contracts; however, in June 2008, West Alabama demanded that KLW leave the job sites. KLW promptly left the job sites but claimed that West Alabama owed it a balance of $146,523. West Alabama refused to pay KLW any additional money. KLW filed a verified claim of lien in the amount of $83,552 plus fees and costs on the Marengo County apartments and filed a verified claim of lien in the amount of $62,971 plus fees and costs on the Macon County apartments.

On October 6, 2008, KLW sued West Alabama, stating three claims: a claim seeking enforcement of the liens, a claim seeking damages for breach of contract, and a claim seeking recovery of the $146,523 under the theory of work and labor done. West Alabama initially moved the trial court to dismiss KLW’s claims on the ground that KLW was estopped from prosecuting its claims because it was not licensed as a general contractor in Alabama (“West Alabama’s estoppel defense”). The trial court heard the motion to dismiss but continued the hearing without ruling on that motion so that West Alabama could file a summary-judgment motion. Thereafter, West Alabama moved the trial court for a summary judgment based on West Alabama’s estoppel defense. West Alabama supported the summary-judgment motion with an affidavit signed by the executive secretary of the Alabama Licensing Board for General Contractors in which he attested that KLW was not licensed as a general contractor in Alabama.

KLW opposed the summary-judgment motion with a pleading and a Rule 56(f), Ala. R. Civ. P., affidavit stating (1) that the basis of KLW’s opposition to the summary-judgment motion was that West Alabama was estopped from asserting its es-toppel defense because West Alabama was in pan delicto with KLW in its failure to comply with the Alabama statutes requiring that KLW obtain a general contractor’s license in order to perform its work under the contracts with West Alabama (“KLW’s in pari delicto argument”) and (2) that KLW needed to conduct discovery in order to obtain evidence in support of its in pari delicto argument. Following a hearing, the trial court entered a summary judgment in favor of West Alabama. In pertinent part, the judgment stated:

“It is undisputed that the parties entered into a contract for the performance of certain work, and that [KLW] was not licensed to perform the work as a general contractor even though it was required to hold such a license pursuant to Ala.Code § 34-8-1, § 34-8-2, and § 34-8-6. As noted in White v. Miller, 718 So.2d 88, 89-90 (Ala.Civ.App.1998), unlicensed contractors cannot recover for the unpaid portion of the contract price:
“ ‘It is well settled that “[ejxpress or implied contracts entered into by an unlicensed general contractor are null and void because they violate public policy.” Goodwin v. Morris, 428 So.2d 78, 79 (Ala.Civ.App.1983).
“ ‘In Architectural Graphics & Constr. Servs., Inc. v. Pitman, 417 So.2d 574, 576 (Ala.1982), our supreme [coui't] stated the following:
“ ‘ “This Court has held that § 34-8-1, et seq., Ala.Code 1975, is not a law enacted solely for revenue purposes, but rather is regulatory legislation designed to protect the public against incompetent contractors and to assure properly built structures which are free from defects and dangers to the public. Cooper v. Johnston, 283 Ala. 565, 219 So.2d 392 (1969).”
“ ‘Our supreme court, in commenting on § 34-8-1, noted that the statute was “a penal one, and harsh results sometimes flow from the construction of a penal statute.” Hawkins v. League, 398 So.2d 232, 237 (Ala.1981).’
“[KLW] responds that the motion is not due to be granted because (1) discovery is outstanding, and/or (2) that the evidence presents a genuine issue of material fact whether [West Alabama] is estopped or otherwise prevented from asserting this defense as the parties were ‘in pari delicto.’ [KLW] notes, accurately, that the Supreme Court once commented that such an argument ‘... has some appeal, particularly where a rule so harsh is involved.’ Architectural Graphics & Constr. Servs., Inc. v. Pitman, 417 So.2d [574,] 576-577 [(Ala.1982)]. This court agrees with that observation and notes the harsh, draconian effect of the defense, particularly where the parties are equally guilty of violating public policy. Nevertheless, the cited observation appears to be dictum that has not been adopted as law in this State. To the contrary, current Alabama law does not recognize any exceptions to the rule that public policy will not permit recovery by an unlicensed contractor regardless of the conduct of the other party. See, e.g., White v. Miller, 718 So.2d at 90 (‘It is well settled, however, that the contractor “cannot, by way of estoppel, endow with validity a transaction which is illegal and against public policy.” ’) Since this court is not authorized to deviate from existing case-law, [KLW] is barred from recovering in this case. Further, I do not find the outstanding discovery to be material to the issue raised in the summary judgment motion, and therefore a continuance to obtain such discovery responses would not alter the outcome of this case. See, e.g., McConico v. State, [8 So.3d 308] (Ala.Civ.App.2008) (discussing, in another context, the requirement that the requested discovery be ‘material’). Therefore, judgment is rendered in favor of [West Alabama] against the claims of [KLW].”

Following the entry of the summary judgment, KLW timely appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘We review a summary judgment de novo.’ Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002) (citation omitted). ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (citations omitted).
“‘In determining whether the non-movant has created a genuine issue of material fact, we apply the “substantial-evidence rule” — evidence, to create a genuine issue of material fact, must be “substantial.” § 12-21-12(a), Ala.Code 1975. “Substantial evidence” is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278-79 (Ala.2000) (footnote omitted). In deciding a motion for a summary judgment, or in reviewing a summary judgment, the court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable factual doubts in favor of the nonmoving party. Bruce v. Cole, 854 So.2d 47 (Ala.2003), and Pitney Bowes, Inc. v. Berney Office Solutions, 823 So.2d 659 (Ala.2001). See Ex parte Helms, 873 So.2d 1139 (Ala.2003), and Willis v. Parker, 814 So.2d 857 (Ala.2001).”

Hollis v. City of Brighton, 885 So.2d 135, 140 (Ala.2004).

KLW first argues that the trial court erred in entering a summary judgment without affording KLW an opportunity to conduct discovery to obtain evidence to support its in pari delicto argument. However, the mere pendency of discovery alone does not bar the entry of a summary judgment. Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988). The pendency of discovery renders the entry of a summary judgment erroneous only if the nonmovant establishes that the discovery is crucial to the nonmov-ant’s case. Id. In the case now before us, the discovery sought by KLW could not be crucial to its case unless KLW’s in pan delicto argument is a valid basis for overcoming West Alabama’s estoppel defense. Thus, the trial court did not err in entering the summary judgment despite the pendency of the discovery unless KLW’s in pan delicto argument is a valid basis for overcoming West Alabama’s estoppel defense.

We agree with the trial court that the statement in Architectural Graphics & Construction Services, Inc. v. Pitman, 417 So.2d 574 (Ala.1982), to the effect that an in pari delicto argument “has some appeal, particularly where a rule so harsh ... is involved” is merely dictum. 417 So.2d at 576. This is clear from the context in which the supíneme court made the statement:

“In brief, AGCS argues under the facts in this case that Pitman and Bel-cher should be estopped to raise [their estoppel] defense. It argues that they were equally guilty of violating the licensing statute and asserts that the parties were in pari delicto, and the trial court should have left all guilty parties as it found them. Although this argument has some appeal, particularly ivhere a rule so harsh as this is involved, we cannot address it because the record is devoid of any evidence whatsoever to either support or contradict ap pellant’s contention. An appellate brief reciting matters not contained in the record cannot be considered on appeal. Cooper v. Adams, 295 Ala. 58, 322 So.2d 706 (1975); Coleman v. Estes, 281 Ala. 234, 201 So.2d 391 (1967).”

417 So.2d at 576-77 (emphasis added). Moreover, KLW has not cited any case holding that an in pari delicto argument is a valid basis for overcoming an estoppel defense. Given the existence of supreme court precedent upholding the validity of the estoppel defense asserted by West Alabama and the nonexistence of supreme court precedent upholding the validity of the in pan delicto argument asserted by KLW, we cannot hold that KLW’s in pan delicto argument was a valid basis for overcoming West Alabama’s estoppel defense. See § 12-3-16, Ala.Code 1975 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals ....”). Therefore, discovery regarding KLW’s in pan delicto argument was not crucial to its case, and the trial court did not err in entering a summary judgment despite the pendency of discovery regarding that argument. See Reeves v. Porter, supra.

KLW also argues that the trial court erred in entering a summary judgment because, it says, West Alabama’s es-toppel defense applies only to a home builder, as that term is defined by the Alabama Code, and KLW did not fall within that definition. However, we cannot consider this argument because the record does not establish that KLW presented it to the trial court. See Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (“[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)) (emphasis omitted)).

Finally, KLW argues that the trial court erred in entering a summary judgment because, it says, West Alabama’s es-toppel defense did not apply to KLW’s claim seeking recovery under the theory of work and labor done. However, we cannot consider this argument either because the record does not establish that KLW presented it to the trial court. Id.

Accordingly, we affirm the summary judgment in favor of West Alabama.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

THOMAS, J., concurs in the result, without writing.


text:
    S.T.W. v. FRANKLIN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2080461.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.

      D. Edgar Black of Black & Hughston, P.C., Muscle Shoals, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   On Rehearing Ex Mero Motu

THOMPSON, Presiding Judge.

The opinion of July 31, 2009, is withdrawn, and the following opinion is substituted therefor.

S.T.W. (“the mother”) appeals from a judgment terminating her parental rights to H.S.A. (“the child”). In its February 9, 2009, judgment, the Franklin Juvenile Court set forth a comprehensive recitation of the evidence presented at the termination hearing and its factual findings and legal conclusions reached after its consideration of the evidence. Our review of the record indicates that the evidence supports the juvenile court’s factual findings and legal conclusions. We, therefore, incorporate that judgment, in its entirety, as part of this court’s opinion.

“The petition to Terminate Parental Rights [to the child] was filed on November 29, 2007. The mother of the child is [S.T.W.]. She was served with the petition on December 10, 2007. The father of the child is [A.A. (sometimes hereinafter referred to as ‘the father’) ]. He was served initially by publication on August 27, 2008, at a time when his whereabouts were unknown. He was later served by personal service on ....
“The child came into the jurisdiction of the Juvenile Court on October 18, 2006, when she was four days old as a result of a Dependency Petition filed by [the Franklin County Department of Human Resources (‘DHR’) ]. This court has had numerous hearings and reviews of the custody of this child. Both parents were present at the shelter care hearing and agreed that DHR would have temporary emergency custody of the minor child. The child was born to [the mother] during her marriage to [J.W.]. At the adjudicatory hearing on December 21, 2006, both [the mother] and [A.A.] were present and as a result of genetic testing, [A.A.] was adjudicated the father of the minor child. This Court gave temporary custody of the minor child to DHR. At the hearing on February 27, 2007, both parents were present and agreed that DHR continue to have temporary custody of the minor child. At that time the father indicated that he would be filing a petition for custody. At the review hearing on August 1, 2007, neither parent appeared. The Court ordered that the child continued to be dependent and DHR continued to have custody of the child. A permanency hearing was held on October 29, 2007. At that time, both parents were present. They agreed that the child remained dependent and agreed with the permanency plan of reunification of the child with the parents. At the time of the permanency hearing on June 30, 2008, neither parent was present with the order reflecting that their whereabouts were unknown. The court approved permanency plan was foster-parent adoption. The initial termination hearing was set on October 27, 2008, and neither parent was present. The hearing was continued. At the next hearing date, ... the mother failed to appear. The father appeared and requested an attorney to represent him. The hearing was held ....
“Based on the testimony presented, DHR was contacted by the hospital on October 16, 2006, two days after the child was born. DHR worker, Stephanie Pinkard, visited the mother and baby at the hospital. The mother had admitted using marijuana during her pregnancy, but she tested negative for drugs at the hospital. The mother did not have a home to go to with the baby and did not have any items necessary to provide care for the baby. The mother was married to [J.W.] at the time of [the child’s] birth, but the mother alleged that [A.A.] was the biological father. [J.W.] was in the Franklin County Jail charged with Capital Murder of [C.W.], who was the infant son of [J.W.] and [the mother], [The father] was at the hospital but he did not have a plan for caring for the baby. He was working at that túne. DHR filed the petition for custody due to the death of [C.W.] while in [the mother’s] care, the mother’s history of drug and alcohol abuse, and neither parent having a home for the baby. All of [the mother’s] other children were in DHR custody at that time.
“[The mother] has given birth to five children. They are: [K.J.], [L.N.], [D.W.], [C.W.], and [the child]. At the time of the [termination] hearing, the mother did not have custody of [K.J.], [L.N.], and [the child]. Parental rights to [D.W.] were terminated and [C.W.] is deceased.
“[The child] was taken home from the hospital by foster parent, [K.G.]. [K.G.] is the adoptive parent of [D.WJ. She took [D.W.] home from the hospital in June 2004, after his birth. [K.G.] worked with the parents during visits and would provide assistance to the parents when they called for help with [the child]. [KG.] has not had any direct communication with the parents since June 2007.
“Stephanie Pinkard began working with the parents to reunify them. DHR recommended that the mother attend Freedom House Intensive Outpatient Program. Freedom House reported that she would not attend the sessions regularly. Ms. Pinkard also sought names for relative placement. Stephanie Pinkard was given the name of a person in Mississippi and that person stated that she did not want custody of the child. [The father] gave his father’s name, but the paternal grandfather had health problems that prevented him from seeking custody of [the child].
“Laura Johnson, who was employed at Family Options, began working with the parents on December 13, 2006. The parents were not married to each other, but were residing in the same household. Ms. Johnson met with the parents and set goals for them. She saw them three days in a row initially. At that time, [the father] was employed, but [the mother] was not employed. [The father] became unemployed while she was working with them. By January 5, 2007, he was still unemployed and had been for two to three weeks. She gave both parents applications for jobs through Kelly Services and neither of them followed through with the applications. [The child] was visiting in the home for three to four days including overnight. Ms. Johnson had the opportunity to observe the parents interact with the child. While she was in the home, the child was in the bouncy seat most of the time and [Johnson] observed very little interaction between the parents and child. During times that they had the child they would not have money and would have to call the foster mother to give them formula and diapers to care for the child. Ms. Johnson worked with them a total of sixty (60) hours. Family Options withdrew from working with them on January 5, 2007, due to their instability during this time and their experience during five or six prior interventions with [the mother] and her other children.[]
“Betsy Puckett became the foster care worker on April 5, 2007. She had worked with [the mother] previously with her other children. The parents’ goals were steady employment, consistent visitation, housing, and no drug or alcohol use. During the time Ms. Puckett began working with the parents and until October 31, 2007, the parents had numerous jobs. The mother was employed approximately half the time and the father was employed less than half the time. The parents were having visits with the child in their home until June 7, 2007. On that day [the father] was arrested for Domestic Violence. [The child] was in the home at the time. Both parents admitted to the worker that they had been drinking that night.[] Later in the hearing, [the father] testified that he was ordered to attend the P.E.A.C.E. program, but he failed to complete the program. He received a suspended sentence and a fine. After the domestic dispute, visitation was changed to supervised by the paternal grandfather. After that date, the worker had very little contact with the parents and could not confirm housing or employment. At a meeting with the parents on October 26, 2007, Ms. Puckett told the parents that DHR would move to terminate their parental rights. [Puckett] left DHR on October 31, 2007, and has not had any contact with the [parents] since that time.
“[The father] testified that since October 2007, he has seen [the child] less than ten times. He testified that the last [scheduled] visit he [had] with the child was eleven months ago and he has seen her once since then during October 2008.[] [The father] has never paid any support for the benefit of the child. He has lived in five places during the last eighteen months and has not had steady employment. He has been arrested for four more criminal offenses since the domestic dispute in 2007. Those charges are pending and are: Domestic Violence in the third degree; Menacing; Robbery in the first degree; and Manufacturing Methamphetamine in the first degree. He is now living with his father, mother, brother and sister where he sleeps on the couch. He stated that he was now ready to be a parent to [the child].
“[The mother] testified that she moved to Mississippi in January 2008, and continues to live there. She and [the father] separated on October 31, 2008. She is employed as a roofer and has been since October 2008. She has not provided any financial support for [the child]. She has been under a court order to pay support for her two older children, [K.J.] and [L.N.], and has an outstanding warrant for her arrest for failure to pay this court-ordered support. She testified that she has not seen [the child] since December 25, 2007. She promised the Court that she would pay her past-due support when her boyfriend’s tax refund came in. She testified that she feels like she did a ‘horrible thing.’
“Based on the testimony and evidence presented, the court finds from clear and convincing, competent, material and relevant evidence that [the mother] and [the father] are unable to discharge them responsibility to and for the care [of the child], and specifically finds as follows:
“1. That reasonable efforts by [DHR] leading toward rehabilitation of the mother have failed.
“2. [The mother] and [the father] have failed to maintain regular visits with [the child].
“3. [The mother] and [the father] have failed to pay any support for the child when they had the ability to do so.
“4. [The mother] and [the father] have failed to provide for the material needs of [the child].
“5. There are no viable options in placing the children with other relatives.
“6. [The mother] and [the father] failed to maintain consistent contact or communication with the child.
“7. [The mother] and [the father] by their actions lacked the effort to adjust their circumstances to meet the needs of the child in accordance with agreements reached with DHR and Family Options.
“The Court also finds from clear and convincing evidence that all viable alternatives to the termination of parental rights have been considered and it is in the best interest of [the child] to terminate the parental rights of [the mother] and [the father].
“Therefore, the court does hereby ORDER that the parental rights of [the mother] and [the father] as to [the child] are hereby TERMINATED

On appeal, the mother argues only that the juvenile court erred in concluding that the Franklin County Department of Human Resources (“DHR”) had made reasonable efforts toward reuniting her with the child. Section 12-15-G5(g)(2), Ala.Code 1975, required that, generally, “reasonable efforts” be made to reunify parents and children and that the juvenile court enter orders ensuring that such efforts are being attempted. However, “reasonable efforts” toward reunification are not always required. Subsection (m) of § 12-15-65 provided, in pertinent part:

“Reasonable efforts shall not be required to be made where the parental rights to a sibling have been involuntarily terminated or where a court of competent jurisdiction has determined that a parent has done any of the following:
“(1) Subjected the child to an aggravated circumstance, including, but not limited to, abandonment, torture, chronic abuse, substance abuse, or sexual abuse.
“(2) Committed murder or voluntary manslaughter of another child of such parent.
“(3) Aided or abetted, attempted, conspired, or solicited to commit murder or voluntary manslaughter of another child of such parent.
“(4) Committed a felony assault which resulted in the serious bodily injury to the child or another child of such parent. ...”

Also, § 26-18-7(a)(l), Ala.Code 1975, provided that if parents have abandoned the child “proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.”

The juvenile court specifically determined that the mother’s parental rights to one of her children, D.W., have been terminated; the record supports that finding. Also, we note that the mother has lost custody of two of her other children and that another child died at the hands of her husband, J.W. Thus, given the facts of this case, the juvenile court was not required to consider whether reasonable efforts had been made to reunite the mother with the child. § 12-15-65(m). We note that the evidence concerning DHR’s and Family Options’ previous efforts to assist the mother tends to indicate that previous attempts to reunite the mother with her other surviving children were unsuccessful. In spite of her past experiences in a termination-of-parental rights case, the mother failed to maintain contact with DHR social workers and failed to visit the child for more than a year. Given the facts of this case and the authority of § 12-15-65(m), we cannot say that the mother has demonstrated that the juvenile court erred in determining that DHR had met its burden with regard to terminating her parental rights.

ON REHEARING EX MERO MOTU: OPINION OF JULY 31, 2009, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . A.A., who was previously adjudicated the father of the child and whose parental rights were also terminated, has not appealed.

      . A reference in the record indicates that K.J. and L.N. have been placed, together, in the custody of their grandparents.

      . Johnson testified that Family Options decided to stop working with the mother because it had offered her services on five or six previous occasions and those services had not been effective in assisting the mother to reunite with her children.

      . In addition, both parents admitted to having taken the child briefly to Tennessee, although each knew that the child was not permitted to be removed from Alabama.

      . A.A. testified that, in October 2008, he happened to see the child at a restaurant where she was eating with her foster parents; that was not a scheduled visit.

      . By Act No. 2008-277, Ala. Acts 2008, the Alabama Legislature, among other things, amended and renumbered § 12-15-65 and enacted the Alabama Juvenile Justice Act (“the AJJA”), codified at § 12-15-101 et seq., Ala.Code 1975. Section 12-15-65 was effective until January 1, 2009; the effective date of the AJJA is January 1, 2009.

      . This court may affirm a judgment that is correct for any reason, even one not cited by the trial court. Boykin v. Magnolia Bay, Inc., 570 So.2d 639, 642 (Ala.1990).

      . Section 26-18-7 was amended and renumbered effective January 1, 2009. See Act No. 2008-277, Ala. Acts 2008; see also note 6.

      . The record does not indicate whether the mother has divorced J.W.

      . The mother, in her brief on appeal, alleges that DHR failed to maintain contact with her. However, the testimony of the DHR social workers indicated that the mother lost contact with them for several months after the June 2007 domestic-violence incident and that they regained contact with her at an October 2007 review hearing. At that time, the mother and A.A. were unemployed and did not have housing.


text:
    Annie O. CANNON v. UTILITY BOARD OF the CITY OF TUSKEGEE.
    2080397.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.
    James B. Douglas, Jr., of McNeal <& Douglas, LLC, Auburn, for appellant..
    Alex L. Holtsford, Jr., Rick A. Howard, and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellee.
   THOMPSON, Presiding Judge.

Annie O. Cannon appeals from a summary judgment entered by the Macon Circuit Court in favor of the Utility Board of the City of Tuskegee (“the Board”). For the reasons stated herein, we reverse that judgment.

Considered in light of the standard by which this court reviews summary judgments, see infra, the evidence of record reveals the following facts pertinent to this appeal. The Board provided electrical service to Cannon’s house, which was located at 256 County Road 27 in Tuskegee. Cannon’s account was maintained in the name of her former husband. In February 2005, Cannon’s former husband died. That same month, Cannon requested that the Board change the name on the account to her name. The Board did so.

In May 2005, the Board sent a letter to Cannon in which it indicated that an account in Cannon’s name had existed from 1996 to 2001 for a house located at 360 County Road 27 in Tuskegee (sometimes hereinafter referred to as “the 1996 account”) and that in 2001 the Board had discontinued electrical service under that account for lack of payment. At the time the electrical service was discontinued, the 1996 account had a balance of $175.66. The Board indicated that that balance would be added to Cannon’s new account. In response to the Board’s letter, Cannon disputed that she had ever opened an account on a house located at 360 County Road 27; she alleged that her cousin lived there and that her cousin must have stolen her identity.

In June 2005, the Board turned off the electricity to Cannon’s house after she had failed to pay her electricity bill. In July 2005, one of Cannon’s daughters called the Board, indicated that Cannon was continuing to reside in her house despite the fact that her electricity had been turned off, and requested to know the balance owed on Cannon’s account. The Board informed her that Cannon owed approximately $250. Cannon’s daughter paid that amount, and the Board restored electrical service to Cannon’s house.

By September 2005, Cannon had again accrued a balance on her electricity account. She paid $54.00 that month in partial payment of her account. In October 2005, the Board again canceled electrical service to Cannon’s house for nonpayment of her account. Cannon moved out of her house at that time. When the Board canceled electrical service to Cannon’s house, the Board’s records indicated that Cannon owed $60.52 on her account.

On December 21, 2005, Cannon sued the Board. She alleged that the Board had added improper charges to her account and that it had breached its contract with her when it had discontinued electrical service to her house. She also alleged that, because she is disabled and deaf, she relied on electrical service to power items and to charge batteries that were necessary for her to cope with her disability and hearing loss. In discontinuing the electrical service, she alleged, the Board had acted wantonly.

On January 18, 2008, the Board filed a motion for a summary judgment. It asserted that Cannon had admitted, in her deposition, that her signature was on the documentation that established the 1996 account, that Cannon’s Social Security number appeared on the authorization for the provision of electrical service under that account, and that bills on that account had been sent to the postal address listed on Cannon’s driver’s license and were paid for a number of years before the account became delinquent. The Board argued that it was entitled to transfer the balance due on the account related to the house at 360 County Road 27 to the account placed in Cannon’s name under the contract that Cannon had entered into with the Board when she put the account at her house into her name. The only breach of contract, the Board contended, was Cannon’s failure to pay the balance of her account. Thus, the Board argued, it was within its rights, and not a violation of its contract with Cannon, to terminate her electrical seivice. As to Cannon’s claim of wantonness, the Board contended that, as a governmental entity, it was not capable of forming the requisite mental state to be liable for wantonness.

In response, Cannon asserted that she had testified several times during her deposition that she did not sign any authorization for electrical service at any address other than for her house located at 256 County Road 27 and that her cousin had obtained her signature and had used it to obtain electrical service at the house located at 360 County Road 27. She asserted that the Board’s decision to add the balance due from the delinquent 1996 account related to the house at 360 County Road 27, which led, according to Cannon, to the Board’s discontinuation of electrical service to her house in October 2005, constituted a breach of the contract between the Board and Cannon. Cannon did not respond to that portion of the Board’s summary-judgment motion related to her wantonness claim.

On April 15, 2008, the trial court entered a partial summary judgment in favor of the Board as to Cannon’s wantonness claim. On December 4, 2008, the trial court entered a summary judgment in favor of the Board as to Cannon’s breach-of-contract claim. Cannon filed a timely appeal to the supreme court with regard to the trial court’s summary judgment on her breach-of-contract claim. She did not appeal from the trial court’s summary judgment on her wantonness claim. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court reviews a summary judgment is the same as the standard for granting a summary-judgment motion. Alabama Elec. Coop., Inc. v. Bailey’s Constr. Co., 950 So.2d 280, 283 (Ala.2006) (quoting McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992)).

“A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly suppoi-ted summary judgment motion, the nonmoving party must present ‘substantial evidence’ creating a genuine issue of material fact — ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994).

Cannon contends that there was a genuine issue of material fact with regard to whether she was responsible for charges on the 1996 account. She argues that if she did not sign the authorization to establish that account, then the Board violated its agreement with her when it added the balance from that account to the balance of the account that was placed in her name in 2005, and that it further violated its contract with her when it terminated electrical service to her house in October 2005.

In response, the Board contends that, under the terms of Cannon’s contract with the Board, Cannon was liable for the balance that was due on her account, which included the balance on the delinquent 1996 account related to the house at 360 County Road 27. It argues that the delinquent 1996 account was in Cannon’s name, that it was “under” her Social Security number, and that it was “under her admitted signature.” The Board argues that, under Alabama law, it cannot be liable for damages caused by the discontinuance of electrical service to Cannon because her account was delinquent.

Our review of Cannon’s deposition reveals a genuine issue of material fact regarding whether she signed the account authorization to establish electrical service at the 360 Highway 27 address or whether someone forged her signature on that document for the purpose of obtaining electrical service at that address. Although, as the Board argues, Cannon did testify that the signature on the document was hers, she also testified unequivocally that she had never signed any authorization form for the establishment of electrical service for any address other than her own. Considering the broader context of Cannon’s testimony, and drawing the reasonable inferences therefrom in a light most favorable to her, we conclude that a jury could interpret Cannon’s testimony as indicating that, although the signature on the authorization form related to the 1996 account looked like hers, it was not really her signature, and that her cousin or someone else forged her signature to that authorization document.

Thus, there is substantial evidence from which a jury could conclude that the Board was not permitted, by the terms of its contract with Cannon, to add the unpaid balance of the 1996 account, $175.66, to the account that Cannon had placed in her name in February 2005. Cannon’s account showed a balance owed of $60.52 at the time that the Board discontinued her electrical service. When the outstanding balance from the 1996 account is removed from Cannon’s account, however, Cannon’s account would show a credit of $115.14, not a debt. Because a jury could believe that the Board discontinued Cannon’s electrical service at a time when her account, when properly credited, was current, the jury could also conclude that the Board breached its contract with Cannon to provide electrical service to her.

The Board also argues that, at the time that it discontinued electrical service at the 256 Highway 27 address in October 2005, the delinquency from the 1996 account had already been paid off (presumably by the payments Cannon and her daughter had made on the new account), and the only amount owing on Cannon’s account related to service at the 256 Highway 27 address. The record does not reflect that, when the balance from the 1996 account was added to Cannon’s account, the Board continued to treat the 1996 account separately; instead, it appears that the balance from the 1996 account was simply added onto, and became a part of, Cannon’s account balance. As such, when Cannon’s daughter paid $250 in July 2005 on Cannon’s account to reestablish electrical service, she was paying money on Cannon’s behalf that a jury could believe was not properly owed by Cannon. As a result, the Board’s contention is without merit.

Based on the foregoing, we conclude that a genuine issue of material fact precluded the Board from establishing its entitlement to a summary judgment as to Cannon’s breach-of-contract claim. As a result, the trial court erred when it entered that judgment, and, therefore, that judgment is due to be reversed.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.