author: MOORE, Judge.

text:
    Matthew GALLANT v. Rebecca GALLANT
    2170097
    Court of Civil Appeals of Alabama.
    June 29, 2018 Rehearing Denied August 24, 2017 Certiorari Denied October 12, 2018
    Alabama Supreme Court 1171111
    Austin Burdick of Burdick Law Firm, Bessemer, for appellant.
    Chip Cleveland of The Cleveland Firm, LLC, Prattville, for appellee.
   MOORE, Judge.

Matthew Gallant ("the father") appeals from a judgment of the Elmore Circuit Court ("the trial court") finding him in contempt of a previous judgment divorcing him from Rebecca Gallant ("the mother") and awarding the mother expenses and fees. We affirm the trial court's judgment.

Procedural History

These parties have previously appeared before this court in Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014) ; Ex parte Gallant, 221 So.3d 1120 (Ala. Civ. App. 2016) (" Gallant II"); Gallant v. Gallant, 229 So.3d 797 (Ala. Civ. App. 2017) (" Gallant III"); and Ex parte Gallant, 261 So.3d 350, 2017 WL 5016614 (Ala. Civ. App. 2017) (" Gallant IV''). In Gallant IV, this court summarized the procedural background of the case:

" 'On August 29, 2009, the trial court entered a judgment in case number DR-09-900071, divorcing the father and [the mother]. That judgment, which incorporated a settlement agreement entered into by the parties, awarded the mother sole physical custody of the parties' five children, subject to the father's right to visitation, awarded the parties joint legal custody of the children, and ordered the father to pay child support and other financial support to the mother. On May 5, 2012, the father filed a contempt petition, which was assigned case number DR-09-900071.01. He later amended his petition to request that the custody provisions of the divorce judgment be modified to award him sole legal and physical custody of the parties' children. In that same action, the mother filed a counterclaim seeking modification of the custody and visitation provisions of the divorce judgment, as well as a finding of contempt against the father. On February 28, 2014, the trial court entered a judgment that, among other things, awarded the mother sole legal and physical custody of the children and modified the visitation rights of the father. This court affirmed that judgment. See Gallant v. Gallant, 184 So.3d 387 (Ala. Civ. App. 2014).
" 'On June 18, 2014, the father filed a petition alleging that the mother had contemptuously violated various provisions of the 2009 divorce judgment and seeking custody of the children. That petition was assigned case number DR-09-900071.02. On July 28, 2014, the mother filed a counterclaim, which was assigned case number DR-09-900071.03. After a trial, the trial court, on January 19, 2016, denied the father's petition and the mother's counterclaim by rendering a single judgment that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. Neither party appealed from the judgment entered in those cases.
" 'On June 21, 2016, the mother filed a contempt and modification complaint under case number DR-900071.03. On August 10, 2016, the father filed a motion to dismiss that contempt and modification complaint. In that motion, the father also moved the trial court to set aside the January 19, 2016, judgment entered in case number DR-09-900071.02 and in case number DR-09-900071.03 for lack of subject-matter jurisdiction. The trial court, on August 12, 2016, denied the father's motion to dismiss and his motion to set aside by rendering a single order that was entered in both case number DR-09-900071.02 and case number DR-09-900071.03. The father filed his petition for a writ of mandamus on August 30, 2016.'
"[ Gallant II,] 221 So.3d at 1121-22.
"In Gallant II, the father filed a petition for a writ of mandamus, arguing that the trial court had erred in denying his motion to set aside the January 19, 2016, judgment and that the trial court had erred in denying his motion to dismiss the contempt and modification complaint filed by the mother, in case number DR-09-900071.03, on June 21, 2016. We concluded that the father had filed his motion to set aside the January 19, 2016, judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., and elected to treat that portion of the father's petition as an appeal that would be, and was, addressed separately in appeal number 2151010. 221 So.3d at 1122. With regard to the father's motion to dismiss, we granted in part and denied in part the father's petition for a writ of mandamus. Specifically, we determined that the trial court did not have subject-matter jurisdiction over the mother's claim regarding visitation and/or modification, and we issued the writ of mandamus to require the trial court to dismiss that claim. 221 So.3d at 1123. We observed that the father's motion to dismiss relied solely on the Uniform Child Custody Jurisdiction and Enforcement Act ('the UCCJEA'), Ala. Code 1975, § 30-3B-101 et seq., and, thus, because the mother's claims that the father had contemptuously failed to pay child support, extracurricular fees, and attorney's fees did not involve child-custody matters, we construed the father's motion to dismiss as relating solely to the visitation claims made in the mother's complaint. Id. Accordingly, we denied the father's petition insofar as the mother's claims addressed the father's alleged contemptuous failure to abide by the trial court's earlier judgments related to his obligations to pay child support, extracurricular fees, and attorney's fees. Id. We also denied the father's petition with regard to the mother's claims that the father had contemptuously violated the trial court's visitation orders. Id.
"In Gallant III, which addressed appeal number 2151010, we affirmed in part and reversed in part the trial court's August 12, 2016, judgment denying the father's motion to set aside the trial court's January 19, 2016, judgment for lack of subject-matter jurisdiction. Specifically, we decided that, to the extent the trial court's January 19, 2016, judgment spoke to the parties' allegations of contempt resulting from failures to comply with the divorce judgment and modifications thereto, the trial court was within its jurisdiction to enforce its prior judgments; thus, we affirmed the denial of the father's Rule 60(b), Ala. R. Civ. P., motion insofar as it related to those claims. 229 So.3d at 802. We also determined that, because neither party continued to reside in Alabama and this state could no longer exercise jurisdiction over the parties pursuant to the UCCJEA at the time the trial court's January 19, 2016, judgment was entered, the trial court did not have subject-matter jurisdiction over the parties' respective visitation- and custody-modification claims. 229 So.3d at 801-02. Accordingly, we determined that the trial court had erred when it denied the father's Rule 60(b) motion seeking to set aside the trial court's January 19, 2016, judgment addressing those claims insofar as they spoke to a modification of visitation or custody of the children. Id. Accordingly, we reversed the August 12, 2016, judgment in part and remanded the cause for the entry of a judgment consistent with our opinion.
"On remand, the trial-court judge who entered the January 19, 2016, judgment entered an order on February 18, 2017, vacating that judgment insofar as it 'relates to issues of custody and/or visitation of the minor children of the parties' and recusing himself from further involvement with the case."

261 So.3d at 353, 2017 WL 5016614.

In response to a motion filed by the mother, the case was reassigned to a different judge. On March 8, 2017, the father filed a "renewed motion to dismiss and/or motion to transfer." On April 19, 2017, the trial court entered an order stating that it "has jurisdiction on the contempt issues as described in the .03 case and for the issues of the attorneys fees in the .02 case as the Court of Civil Appeals did not address the same." The trial court then set a hearing on the contempt issues for June 8, 2017; that hearing was ultimately reset for August 10, 2017. On April 21, 2017, the father filed a "motion to reconsider" with regard to his renewed motion to dismiss or to transfer the case. The mother filed an amended complaint in case number DR-09-900071.03 on May 24, 2017, asserting additional counts of contempt against the father. The father filed an "objection/answer" to the mother's amended complaint on August 2, 2017.

On August 7, 2017, the mother filed a motion, again seeking to amend her complaint. On that same date, the father filed in the trial court a response to the mother's motion to amend her complaint and a "renewed motion to stay, continue, or transfer." Also on August 7, 2017, the father filed the petition for a writ of mandamus that was at issue in Gallant IV.

On August 8, 2017, the trial court entered an order granting the mother's motion to amend her complaint and a separate order denying the father's motion to stay. The mother filed a motion seeking fees and expenses on August 9, 2017. A hearing was held on August 10, 2017. On that same date, the father filed an amended motion to reconsider regarding his April 21, 2017, renewed motion to dismiss or to transfer the case. The trial court entered an order on that same date, denying the father's amended motion to reconsider. Also on August 10, 2017, the trial court entered a judgment on the mother's complaint for contempt, finding the father in contempt for his failure to pay child support, his failure to pay his portion of extracurricular activities and fees, his failure to pay his portion for one of the children's braces, and his failure to pay attorney's fees that had been awarded in the divorce judgment. The trial court directed, among other things, that the father be taken into custody and held pending the payment of $24,182.60, the total of the amounts for which the father was in arrears for his contemptuous behavior as well as an amount for fees and expenses, as requested by the mother. The father filed a motion to alter, amend, or vacate the judgment on August 14, 2017. On September 5, 2017, the mother filed a response to the father's postjudgment motion. The trial court entered an order on September 27, 2017, denying the father's postjudgment motion. The father filed his notice of appeal to this court on October 20, 2017.

On November 3, 2017, this court released its opinion denying the father's petition for a writ of mandamus in Gallant IV. We concluded that the father's petition was untimely with regard to certain issues and that other issues could be properly raised in an appeal from a final judgment. 261 So.3d at 355-56, 2017 WL 5016614.

Analysis

The father first argues on appeal that the trial court erred by failing to vacate the attorney's fees awarded to the mother in the trial court's January 19, 2016, judgment. He asserts that that award of attorney's fees is void. In Gallant IV, this court stated, in pertinent part:

"The father argues that, because this court set aside the trial court's January 19, 2016, judgment with regard to the mother's claims regarding modification and visitation in Gallant III, the trial court could not have awarded attorney's fees on the basis of those claims. Citing Neny v. Neny, 989 So.2d 565, 571 (Ala. Civ. App. 2008), for the proposition that, absent a finding of contempt, attorney's fees may not be awarded in an action alleging contemptuous conduct, the father asserts also that, because the trial court did not find either party in contempt, there was no other basis upon which to award attorney's fees, and, thus, he says, the trial court lacked subject-matter jurisdiction to enter that award."

261 So.3d at 355, 2017 WL 5016614. In Gallant IV, we interpreted the father's arguments as an attempt to attack the award of attorney's fees in the January 19, 2016, judgment for lack of jurisdiction, but we declined to further address the issue because the petition followed an interlocutory order and the father had another adequate remedy for review. 261 So.3d at 355-56, 2017 WL 5016614. The father reasserted those same arguments in his postjudgment motion before the trial court, and he reasserts them before this court in his present appeal.

In awarding attorney's fees to the mother in its January 19, 2016, judgment, the trial court stated, in pertinent part:

"Because the Court finds that the [father] initiated this action without substantial justification, as was evident by the evidence presented at the [f]inal [h]earing, he is assessed and shall pay to the [mother] attorney fees in the amount of $7,500.00 not later than 120 days of the date of this Order."

The mother argued in her answer to the father's mandamus petition in Gallant IV that the trial court's award of attorney's fees was based on the Alabama Litigation Accountability Act ("the ALAA"), § 12-19-270 et seq., Ala. Code 1975. Section 12-19-272(c), Ala. Code 1975, a part of the ALAA, provides, in pertinent part, that "[t]he court shall assess attorney's fees and costs against any party or attorney if the court ... finds that an attorney or party brought an action ... without substantial justification." Clearly, the trial court's award of attorney's fees mimics the language in § 12-19-272(c). The father failed to address this argument in his mandamus petition in Gallant IV, he has not addressed it in this appeal, and he has failed to otherwise assert that the trial court could not have relied on the ALAA in fashioning its award of attorney's fees to the mother. We note, however, that "[a] trial court's judgment may be affirmed on any correct basis." Jones-Williams Constr. Co. v. Town & Country Prop., L.L.C., 923 So.2d 321, 328 (Ala. Civ. App. 2005). Because we conclude that the trial court could have relied on the ALAA with regard to its award of attorney's fees in its January 19, 2016, judgment, we decline to conclude that that award is due to be vacated.

The father next argues that the trial court erred in failing to transfer the action. In Gallant IV, this court noted that the materials before us on the father's mandamus petition did not include the father's motion to transfer or any denial of that motion by the trial court. 261 So.3d at 354, 2017 WL 5016614. We noted, however, that, to the extent an order of the trial court could have been considered a denial of such a motion, the father's petition for a writ of mandamus was untimely following the entry of such an order. Id. Thus, we have not yet considered the issue of venue. The father cites the forum non conveniens statute, Ala. Code 1975, § 6-3-21.1, which provides:

"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. Provided, however, this section shall not apply to cases subject to Section 30-3-5[, Ala. Code 1975 ].
"(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20,[ Ala. Code 1975,] Section 6-3-21, [Ala. Code 1975,] or Alabama Rules of Civil Procedure."

The father asserts that, at all times relevant to this action, the parties and the children have lived in New York or Maine, that all acts or omissions are alleged to have occurred outside Alabama, and that the interest of justice is not served by requiring the parties to litigate over "1000 miles from the children's home state."

Section 30-3-5, Ala. Code 1975, the operation of which is not affected by § 6-3-21.1 (see § 6-3-21.1(a) ), provides:

"Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification, interpretation, or enforcement of a final decree awarding custody of a child or children to a parent and/or granting visitation rights, and/or awarding child support, and/or awarding other expenses incident to the support of a minor child or children, and/or granting post-minority benefits for a child or children is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent or, in the case of post-minority benefits, where the most recent custodial parent, that parent having custody at the time of the child's attaining majority, and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action."

In the present case, the mother sought to enforce a final judgment-i.e., the parties' divorce judgment-awarding child support and other expenses incident to the support of the parties' children. The trial court issued that final judgment; thus, venue in the trial court is in accordance with § 30-3-5(1). Additionally, because the mother is the current custodial parent, she was entitled to choose the venue in accordance with that statute. Because the trial court was a proper venue, the trial court did not err in denying the father's motion to transfer the action.

The father next argues on appeal that the mother's contempt complaint was due to be dismissed based on the trial court's lack of personal jurisdiction over him. The father has maintained at all times before the trial court since the mother filed her current complaint for contempt that the trial court lacked personal jurisdiction over him. He reiterated those arguments in open court on August 10, 2017, before testimony proceeded. The mother argues on appeal that this court specifically stated in Gallant II that the trial court retained jurisdiction over the father for purposes of contempt proceedings. In Gallant II, this court relied on Ex parte Stouffer, 214 So.3d 1192 (Ala. Civ. App. 2016), in which a majority of this court concluded that an Alabama court may exercise subject-matter jurisdiction over contempt proceedings to enforce its prior child-custody determination even if the children and the parents no longer reside in Alabama and Alabama otherwise has no other connection to the case. 221 So.3d at 1123. We concluded, based on Stouffer, that the trial court retained subject-matter jurisdiction over the mother's contempt claims. This court observed in Gallant IV that the father had raised the issue of personal jurisdiction before this court in Gallant II and that this court had concluded that we would not consider that issue because the father had failed to sufficiently cite authority in support of that argument as required by Rule 28, Ala. R. App. P. 261 So.3d at 355, 2017 WL 5016614. See also Gallant II, 221 So.3d at 1122 n.1.

In Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So.2d 441 (Ala. 2005), our supreme court observed that "the doctrine of the law of the case 'merely expresses the practice of courts generally to refuse to reopen what has been decided ....' " 913 So.2d at 445 (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed. 1152 (1912) ). Because this court specifically declined to address the father's arguments regarding personal jurisdiction in Gallant II, the question whether the trial court lacked personal jurisdiction in the present case has not yet been decided by this court such that the law-of-the-case doctrine is applicable. Accordingly, we proceed to address the father's argument regarding the trial court's lack of personal jurisdiction.

The father argues that neither the parties nor their children continue to reside in Alabama; thus, he asserts, according to the jurisdictional instructions of the Uniform Interstate Family Support Act ("the UIFSA"), § 30-3D-101 et seq., Ala. Code 1975, the trial court has lost exclusive continuing jurisdiction of the case. He argues that the appropriate jurisdiction is the state where he resides. According to § 30-3D-201(a)(3), Ala. Code 1975, of the UIFSA, "[i]n a proceeding to establish or enforce a support order ..., a tribunal of this state may exercise personal jurisdiction over a nonresident individual" if, among other things, "the individual resided with the child in this state." The father does not dispute that he has resided with the children in Alabama or that the trial court obtained personal jurisdiction over him, pursuant to § 30-3D-201. Instead, the father argues that the trial court lost its continuing jurisdiction of the case.

Section 30-3D-202, Ala. Code 1975, provides:

"Personal jurisdiction acquired by a tribunal of this state in a proceeding under this chapter or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by Sections 30-3D-205, 30-3D-206, and 30-3D-211[, Ala. Code 1975]."

Section 30-3D-206(b), Ala. Code 1975, provides that "[a] tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order." The father does not argue that a tribunal of another state has modified the trial court's judgments regarding child support in this case. Section 30-3D-203, Ala. Code 1975, provides, in pertinent part, that "a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state, and as a responding tribunal for proceedings initiated in another state or a foreign country." The Uniform Comment to § 30-3D-203 states, in pertinent part, that, under the UIFSA, "a tribunal may serve as a responding tribunal even when there is no initiating tribunal," which, the Comment explains, "accommodates the direct filing of a proceeding in a responding tribunal by a nonresident of the Forum, whether residing in a state or anywhere else in the world." Thus, pursuant to § 30-3D-203, the trial court in the present case may serve as a responding tribunal to accommodate the mother's contempt complaint. Accordingly, the trial court has continuing jurisdiction to enforce its orders pursuant to § 30-3D-206(b) as a responding tribunal, and, pursuant to § 30-3D-202, the trial court continued to exercise personal jurisdiction over the father.

The father next argues on appeal that his due-process rights were violated because the mother and the trial court failed to comply with Rule 70A, Ala. R. Civ. P. Rule 70A(c) provides, in pertinent part:

"(1) Initiation of Action. A proceeding based on constructive contempt, whether criminal or civil, shall be subject to the rules of civil procedure. The proceeding shall be initiated by the filing of a petition seeking a finding of contempt (the petition may be in the form of a counterclaim or cross-claim authorized under Rule 13[, Ala. R. Civ. P.] ). The petition shall provide the alleged contemnor with notice of the essential facts constituting the alleged contemptuous conduct.
"(2) Issuance of Process and Notice. Upon the filing of a contempt petition, the clerk shall issue process in accordance with these rules, unless the petition is initiated by a counterclaim or cross-claim authorized under Rule 13. In any case, the person against whom the petition is directed shall be notified (1) of the time and place for the hearing on the petition and (2) that failure to appear at the hearing may result in the issuance of a writ of arrest pursuant to Rule 70A(d) [, Ala. R. Civ. P.], to compel the presence of the alleged contemnor."

The father argues that the mother's contempt complaint and amended complaint fail to comply with Rule 70A insofar as it "requires that all essential facts be pleaded to support an allegation of contempt" with regard to the father's payment of extracurricular expenses and medical expenses for the children. He asserts that the mother failed to allege that she had provided timely requests for reimbursement and timely notice of the amounts that she claimed were owed. He fails, however, to cite any authority indicating that the mother was required to make those allegations in her complaint in order to pursue her contempt claims. See Rule 28(a)(10), Ala. R. App. P.

Citing S.T.W. v. T.N., 141 So.3d 1083, 1088-89 (Ala. Civ. App. 2013), and Ex parte McCall, 149 So.3d 1107 (Ala. Civ. App. 2014), the father argues that the trial court's judgment finding him in contempt is due to be set aside. In S.T.W., this court reversed a juvenile court's finding of constructive contempt because the juvenile court had held the father in that case in contempt during a hearing for his failure to comply with previous orders of the court despite there having been no petition filed to initiate the contempt proceeding, no process filed by the clerk, and no hearing on such a petition. 141 So.3d at 1088. In Ex parte McCall, like in S.T.W., this court reversed a finding of contempt because there had been no petition filed, no process issued against the purported contemnor, and no notice of the hearing at which the finding of contempt was imposed. 149 So.3d at 1109-10.

Unlike in S.T.W. or McCall, the mother in the present case filed a complaint and an amended complaint asserting claims of contempt against the father for his failure to pay child support, extracurricular-activity fees, attorney's fees, and medical expenses as ordered in the parties' divorce judgment. In C.D.M. v. W.B.H., 140 So.3d 961, 962 (Ala. Civ. App. 2013), the Madison District Court found C.D.M. in contempt of court, and she appealed that finding. C.D.M. argued that the district court had erred by issuing contempt sanctions against her without first issuing notice pursuant to Rule 70A(c)(2). Id. at 966. This court observed that C.D.M., like the father in this case, had not argued that she had not been apprised of the time and the place for the hearing. Id. We interpreted C.D.M.'s argument as one asserting that the district court's failure to notify her that her failure to appear at the scheduled hearing could result in a writ being issued for her arrest required reversal of the contempt finding. Id. C.D.M. argued that the requirements of Rule 70A are required to be met for the issuance of contempt sanctions regardless of whether a party appears for the hearing. Id. This court observed that C.D.M. had failed to cite authority in support of that assertion, in contravention of Rule 28(a)(10), Ala. R. App. P., and noted also that, because C.D.M. had been present for the hearing and had been given notice of the time and date of the hearing and no writ for her arrest had been issued, it appeared that any deficiency in the hearing notice amounted only to harmless error, citing Rule 45, Ala. R. App. P. Id. at 967. We concluded further that C.D.M. had had sufficient notice that she was facing sanctions for criminal contempt. Id.

In the present case, the father filed responses to the mother's complaint and her amended complaint, and he appeared at the hearing on the complaints and presented evidence. Like C.D.M., he does not argue on appeal that he was not given notice of the hearing on the complaints. Indeed, he references two orders of the trial court dated May 25, 2017, and May 30, 2017, respectively, which set the date and time of the hearing on the mother's complaint and amended complaint. Thus, like in C.D.M., we interpret the father's argument as one asserting that the trial court erred in failing to inform him that his failure to appear at the hearing might result in the issuance of a writ of arrest. Like C.D.M., the father has failed to support his argument that the trial court's failure to inform him of that possibility amounts to reversible error. As this court stated in C.D.M.:

" 'It is the appellant's burden to refer [an appellate court] to legal authority that supports its argument. Rule 28(a)(10), Ala. R. App. P., requires that the argument in an appellant's brief include "citations to the cases, statutes, [and] other authorities ... relied on." Consistent with Rule 28, "[w]e have stated that it is not the function of [an appellate] court to do a party's legal research." Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala. 1992) (citing Henderson v. Alabama A & M University, 483 So.2d 392, 392 (Ala. 1986) (" 'Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor function to perform all the legal research for an appellant.' Gibson v. Nix, 460 So.2d 1346, 1347 (Ala. Civ. App. 1984).") ).'
" Board of Water & Sewer Comm'rs of the City of Mobile v. Bill Harbert Constr. Co., 27 So.3d 1223, 1254 (Ala. 2009)."

140 So.3d at 966-967. Because the father has failed to cite any legal authority in support of his assertion that the trial court erred to reversal in failing to notify him that his failure to attend the hearing could result in the issuance of a writ for his arrest, we decline to further address that argument. See C.D.M., 140 So.3d at 967.

The father next argues that the mother's claims with regard to his failure to pay child support or attorney's fees as ordered in the trial court's January 19, 2016, judgment were tried without his consent. He asserts that, although the mother included those claims in her original contempt complaint, those claims did not appear in her amended complaint for contempt and, therefore, he argues, she had abandoned those claims until she raised them again at trial. The father fails, however, to provide any citation to authority indicating that the mother's failure to reassert the claims in her original complaint in her amended complaint resulted in the abandonment of those claims. Accordingly, we decline to further address that issue. See C.D.M., supra, and Rule 28(a)(10). Although the father argues that the mother's claims were not tried with the parties' consent at the trial, we affirm the trial court's judgment on this issue because the father has failed to show on appeal that the claims that were asserted in the mother's original complaint were abandoned in her amended complaint. Thus, we need not decide whether the parties expressly or impliedly consented to trying those claims.

The father also argues on appeal that the mother's claim that the father was in contempt of court because he paid $1,200 of his child-support obligation directly to the parties' mortgage company is barred by the doctrine of res judicata.

" '[T]he application of [the doctrine of res judicata] is a question of law. Thus, the appropriate standard of review is de novo.' Walker v. Blackwell, 800 So.2d 582, 587 (Ala. 2001).
" ' "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." '
" Webb v. City of Demopolis, 14 So.3d 887, 894 (Ala. Civ. App. 2008) (quoting Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725 (Ala. 1990) )."

Bullock v. Howton, 168 So.3d 1270, 1272 (Ala. Civ. App. 2015).

The judgment divorcing the parties ordered the father to pay $2,400 per month in child support. It further directed that "payments shall be made as follows: $1,200.00 directly to the Mortgage Company until certain events occur ... and the remainder to the [mother]." In its February 28, 2014, judgment, the trial court modified the father's monthly child-support obligation from $2,400 to $1,700 per month. On July 23, 2015, the mother filed a "motion for clarification" in the trial court, asking the court to clarify whether the father was allowed to continue paying the mother only the remaining $500 after paying the $1,200 mortgage payment on the marital home or whether he was to pay her the full $1,700, in addition to the mortgage payment. On July 26, 2015, the trial court entered an "order on [the mother's] motion for clarification," which stated, in pertinent part, that "the issue of child support and the [father's] payment or non-payment of same, together with the amount of any child support arrears will be addressed during the final hearing." In its January 19, 2016, judgment, the trial court failed to specifically address the issue raised in the mother's motion to clarify, but it denied all relief not specifically granted. Notably, the mother had not asserted a claim of contempt against the father regarding his purported failure to pay the full amount of child support in her counterclaim before the entry of the trial court's January 19, 2016, judgment. The father has failed to cite any authority indicating that the denial of the mother's motion for clarification amounted to the trial court's determination that the father was not in arrears in his child-support payments or that the father was paying child support as intended by the trial court in its February 28, 2014, judgment. Further, the father has failed to cite any authority indicating that the denial of the mother's motion for clarification involved the same cause of action as the mother's complaint for contempt and amended complaint for contempt in the present case. Because the father's argument is not properly supported by citation to authority, we affirm the trial court's judgment as to this issue. See C.D.M., supra, and Rule 28(a)(10).

The father last argues on appeal that the trial court erred by awarding the mother attorney's fees in its August 10, 2017, judgment, based on his other arguments on appeal, i.e., that the mother's child-support claims were barred by res judicata and the UIFSA and that the trial court's failure to comply with Rule 70A requires reversal in this case. Having determined that none of those issues raised by the father merit reversal of the trial court's judgment, we conclude that the father's argument regarding the award of attorney's fees to the mother is similarly without merit. Accordingly, the trial court's judgment is affirmed.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      The father also does not argue on appeal that the mother should have initiated enforcement proceedings in another state. Accordingly, that argument is waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.").


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Sandra VINCENT and Orderick Vincent v. KONDAUR CAPITAL CORPORATION
    2170241
    Court of Civil Appeals of Alabama.
    July 13, 2018 Rehearing Denied September 7, 2018 Certiorari Denied October 12, 2018
    Alabama Supreme Court 1171168
    Jennifer A. Cornwell, Montgomery, for appellants.
    R. Aaron Chastain and Stephen C. Parsley of Bradley Arant Boult Cummings LLP, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Sandra Vincent and Orderick Vincent appeal from a summary judgment the Dallas Circuit Court ("the trial court") entered in favor of Kondaur Capital Corporation ("Kondaur") in its ejectment action against the Vincents. However, the appeal of that judgment is due to be dismissed as untimely.

Briefly, the record indicates that Kondaur foreclosed on property ("the property") the Vincents had purchased with the proceeds from a loan, which was secured by a mortgage held by Kondaur. Kondaur purchased the property at a foreclosure sale on December 6, 2013. The Vincents refused to vacate the property, and on March 14, 2014, Kondaur filed an ejectment action against them. The Vincents answered, asserting that Kondaur's title to the property was due to be set aside. They also asserted two counterclaims alleging fraud and breach of contract. Specifically, the Vincents alleged that Kondaur had made false representations that it would not pursue foreclosure during the loan-modification process as well as regarding other terms and costs they say were material to the mortgage and foreclosure. The Vincents also alleged that Kondaur "owed a duty" to them pursuant to the mortgage and loan-modification documents and that, in accelerating the loan and going forward with the foreclosure, Kondaur breached the terms of the loan modification.

The litigation proceeded, and on January 29, 2016, Kondaur filed a properly supported motion for a summary judgment on its claim against the Vincents. As part of its evidentiary submission and argument, Kondaur demonstrated that it possessed legal title to the property and that the Vincents remained on the property unlawfully. In response to Kondaur's motion, the Vincents, who were appearing pro se at that point in the litigation, submitted a handwritten document stating that they would use Kondaur's evidentiary submission "to show how [Kondaur has] committed mortgage servicing fraud, wrongful foreclosure, falsified documents, altered documents, dual tracking and more."

The Vincents also requested an opportunity to demonstrate to the trial court that their allegations against Kondaur were true. They made no evidentiary submission of their own at that time. In subsequent letters to and/or filings in the trial court, the Vincents stated that they were "prepared to provide the documents that [they had] indicated would be evidence" to support their contentions "on the day of summary judgment." Documents pertaining to the mortgage or the loan-modification process were attached to some of those filings. In their subsequent letters to and/or filings in the trial court, the Vincents continued to maintain that the foreclosure on the property was wrongful and to accuse Kondaur of fraud, breach of the terms of the mortgage and the loan-modification process, and other misconduct in connection with the foreclosure.

The trial court held a hearing on Kondaur's motion for a summary judgment on September 29, 2016. No transcript of that hearing is available. On March 15, 2017, the trial court entered a judgment stating that, based on the testimony taken at the September 29, 2016, hearing, the motion for a summary judgment, and the documentation supporting the motion, the summary-judgment motion was granted. The trial court awarded Kondaur possession of the property and ordered the Vincents to vacate and surrender the property within five days of the entry of the judgment.

The Vincents had until April 14, 2017-30 days after the summary judgment was entered-to file a postjudgment motion. See Rule 59(b), Ala. R. Civ. P.; Burgess v. Burgess, 99 So.3d 1237, 1239 (Ala. Civ. App. 2012). However, it was not until May 11, 2017-57 days after the judgment was entered-that they filed what they titled "emergency motion to set aside judgment and stay writ of possession." Because the Vincents' postjudgment motion to set aside the judgment-which we construe as a Rule 59 motion to alter, amend, or vacate the judgment-was untimely, the trial court no longer had jurisdiction over this matter. Therefore, the trial court's orders regarding the Vincents' motion to set aside, as well as their subsequent requests for a new trial and mediation, were void because the trial court had lost jurisdiction to consider those motions. Burgess, supra. We note that the substance of the Vincents' postjudgment motion does not state a ground to set aside the judgment that would allow us to consider it as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P. See Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.C., 35 So.3d 601, 604 (Ala. 2009) ("It is well settled that '[t]his Court will look at the substance of a motion rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.' " (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala. 2005) ).

The Vincents argue that the summary judgment did not resolve the counterclaims they filed against Kondaur and, therefore, that the judgment was not final; we disagree. Although the trial court did not explicitly rule on the fraud and breach-of-contract counterclaims, the language of the summary judgment indicates that the trial court implicitly denied those claims. Thus, the judgment is deemed final. Jones v. DeRamus, 199 So.3d 74, 75 (Ala. Civ. App. 2015) ; and Horton v. Perkins, 17 So.3d 235, 237 n. 2 (Ala. Civ. App. 2009). For example, in Hingle v. Gann, 368 So.2d 22, 23-24 (Ala. 1979), our supreme court held that claims seeking money damages for trespass asserted by both a plaintiff and a defendant were implicitly denied when the judgment entered established a boundary line but did not mention those claims. More recently, in Ervin v. Stackhouse, 64 So.3d 666, 672 (Ala. Civ. App. 2010), this court held that when a trial court did not award damages on a claim, that claim was implicitly denied.

In this case, by awarding Kondaur possession of the property, the trial court necessarily had to have determined that the foreclosure was not the result of fraud or breach of contract on Kondaur's part. Thus, we conclude that the judgment in favor of Kondaur implicitly denied the Vincents' counterclaims and conclusively decided all the controversies between the parties. Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490 (Ala. 2008). Accordingly, the March 15, 2017, judgment was final and able to support an appeal.

The Vincents appear to assert that the time in which they had to file their notice of appeal began to run when the trial court purported to deny their untimely postjudgment motions and purported to reinstate the writ of possession. Because the trial court did not have jurisdiction to rule on those motions, their argument is without merit.

The untimely postjudgment motion or motions did not extend the time for appeal. Bice v. SCI Alabama Funeral Home Servs., 764 So.2d 1280, 1281 (Ala. Civ. App. 2000). The Vincents did not file their notice of appeal until November 28, 2017, well beyond 42 days after the entry of the March 15, 2017, final judgment. See Rule 4(a)(1) and (3), Ala. R. App. P. "The timely filing of [a] notice of appeal is a jurisdictional act." Rudd v. Rudd, 467 So.2d 964, 965 (Ala. Civ. App. 1985). Because the Vincents' notice of appeal was untimely, it did not invoke the jurisdiction of this court, and, therefore, this appeal must be dismissed. See Rule 2(a)(1), Ala. R. App. P. Holt v. State ex rel. Jones, 185 So.3d 452, 453 (Ala. Civ. App. 2014).

APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      On June 23, 2017, the Vincents filed a "motion to [sic] for new trial" that, within the body of the motion, stated that it was filed pursuant to Rule 60(b), Ala. R. Civ. P. In that motion, the Vincents claimed to have "newly discovered evidence that would need to be considered in resolving this case." The motion then quoted the first three grounds for relieving a party of a judgment as set forth in Rule 60(b). The motion did not disclose the "newly discovered evidence." In their brief on appeal, the Vincents' arguments pertain only to the propriety of the summary judgment and not to the denial of the Rule 60(b) motion, and they make no argument regarding "newly discovered evidence" on appeal. Thus, any arguments the Vincents could have made as to that issue are deemed waived. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala. 2003) ; Williams v. Limestone Cty. Water & Sewer Auth., 223 So.3d 240, 248 (Ala. Civ. App. 2016).

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


author: DONALDSON, Judge.

text:
    J.T. v. J.S.
    2170847
    Court of Civil Appeals of Alabama.
    October 12, 2018
    William T. Fortune, Jr., Birmingham, for appellant.
    Submitted on appellant's brief only.
   DONALDSON, Judge.

J.T. ("the adoptive father") appeals from an order of the Jefferson Probate Court that vacated a decree of adoption. Because the adoptive father has appealed from a nonfinal order, we dismiss the appeal.

The facts relevant to this appeal are as follows. J.S.T. ("the mother") and J.S. ("the natural father") had a child, C.J.T. ("the child"), during their marriage. The mother and the natural father were divorced in September 2009. In May 2011, the mother married the adoptive father. In August 2013, the adoptive father filed a petition in the probate court seeking to adopt the child. The probate court entered a final decree of adoption on October 16, 2013.

On September 1, 2016, the natural father filed a motion in the probate court seeking to set aside the final decree of adoption in which he alleged, among other things, that he had not consented to the adoption, that he had not been given notice of the adoption proceedings, and that the mother had knowledge of his whereabouts, and, therefore, the adoptive father could have served him personally.

On April 20, 2017, after a hearing, the probate court entered a "BENCHNOTE" in which it granted the natural father's motion to set aside the decree of adoption. Over a year later, on May 2, 2018, the probate court entered a detailed order with findings of fact in which it granted the natural father's motion to set aside the decree of adoption. The adoptive father filed a motion seeking to vacate the May 2, 2018, order and in which he also asserted, in the alternative, that the matter should be set for a hearing regarding the natural father's implied consent to the adoption. On June 7, 2018, the probate court denied the adoptive father's motion. The record does not contain any orders or other documents indicating that the probate court dismissed the adoptive father's adoption petition or otherwise disposed of the case. On June 12, 2018, the adoptive father filed a notice of appeal to this court.

On appeal, the adoptive father argues that the probate court erroneously set aside the decree of adoption because, he asserts, the natural father had impliedly consented to the adoption. Before we can address the adoptive father's arguments, however, we must determine whether this court has jurisdiction to consider the appeal. See Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) (explaining that "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu''). " '[I]f there is not a final judgment then this court is without jurisdiction to hear the appeal.' " C.E.C. v. C.W.C., 202 So.3d 338, 340 (Ala. Civ. App. 2016) (quoting Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala. Civ. App. 2010), citing in turn Hamilton ex rel. Slate-Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006) ).

In C.E.C., this court held that an order that granted a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., and vacated an adoption judgment but that did not otherwise resolve the adoption action was not sufficiently final so as to invoke our appellate jurisdiction. 202 So. 3d at 341. Specifically, the probate court in that case had granted a Rule 60(b) motion and vacated an adoption judgment but had "not determine[d] custody of the child, dismiss[ed] the petition for adoption, or otherwise resolve[d] the entire adoption proceeding." Id. Likewise, in this case, the probate court's order vacated the adoption decree, but it did not otherwise resolve the adoption proceeding, and, therefore, it is not a final judgment capable of supporting an appeal. Id. Accordingly, we dismiss the appeal.

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.


author: THOMAS, Judge.

text:
    INTERNATIONAL MANAGEMENT GROUP, INC., and Michael Carter v. BRYANT BANK
    2170744
    Court of Civil Appeals of Alabama.
    October 12, 2018
    Richard E. Smith and Rachel J. Moore of Christian & Small LLP, Birmingham, for appellants.
    Burt W. Newsome of Newsome Law, LLC, Birmingham, for appellee.
   THOMAS, Judge.

In March 2010, International Management Group, Inc. ("IMG"), through its owner and president, Michael Carter, executed six promissory notes to Bryant Bank ("the Bank"); Carter personally guaranteed the notes. At that time, IMG was the mortgagee of a mortgage executed by James L. Banks and Martha R. Rembert ("the mortgage"). In July 2010, Carter organized Liberty Assets, LLC ("Liberty"). In August 2010, IMG assigned the mortgage to Liberty; no consideration for the assignment was exchanged between IMG and Liberty.

In February 2011, Liberty assigned the mortgage to Clarence Carter and Phyllis Carter, Carter's parents. In March 2011, the Bank renewed IMG's promissory notes. In December 2011, IMG defaulted on the promissory notes, and, in January 2012, the Bank sued IMG and Carter; in March 2013 and in February 2014, the Bank received two separate judgments against IMG and Carter totaling $291,673.87.

In October 2015, Carter filed for bankruptcy; he received a bankruptcy discharge in August 2016. IMG was "administratively dissolved" by the State of Georgia on December 31, 2015. In December 2016, Liberty was also "administratively dissolved" by the State of Georgia.

Clarence predeceased Phyllis, leaving her as the sole assignee of the mortgage. Phyllis died in September 2012. Carter was the executor of Phyllis's estate, and, in December 2016, in his capacity as executor of Phyllis's estate, he assigned the mortgage to himself.

In April 2017, the Bank sued IMG, Carter, Liberty, Banks, and Rembert in the Jefferson Circuit Court ("the trial court"), seeking to have the assignment of the mortgage by IMG to Liberty set aside pursuant to the Alabama Uniform Fraudulent Transfer Act ("the AUFTA"), codified at Ala. Code 1975, § 8-9A-1 et seq. In the complaint, as amended, the Bank alleged that IMG had transferred its interest in the mortgage for nominal or no consideration and that the assignment of the mortgage "was made with the intent to hinder, delay, or defraud [the Bank]," in violation of Ala. Code 1975, § 8-9A-4. The Bank sought a preliminary injunction requiring the mortgage payments be paid into the court instead of to Carter and an order subjecting the mortgage to execution as a means of enforcing the Bank's rights as a judgment creditor. IMG and Carter answered the complaint, specifically admitting "that [IMG] transferred the mortgage to Liberty ... without consideration" but denying "that the assignment was made with the intent to defraud [the Bank]." After holding an evidentiary hearing, the trial court granted the requested preliminary injunction on July 6, 2017, and, on September 21, 2017, the trial court entered a default judgment against Banks and Rembert, ordering them to pay the mortgage payments to the circuit clerk. Also on September 21, 2017, the Bank sought and received a voluntary dismissal of its claims against Liberty.

In November 2017, the Bank moved for a summary judgment on its claims against IMG and Carter. The Bank supported its motion with copies of the mortgage; the three mortgage assignments; the articles of organization of Liberty; the certificates of administrative dissolution of both Liberty and IMG; the promissory notes executed by Carter, as president of IMG; copies of the 2013 and 2014 judgments in its favor; and an affidavit of John Platt, the vice president of the Bank. In his affidavit, Platt stated that the Bank had been unaware that, when it renewed IMG's promissory notes in March 2011, IMG was actively transferring its assets to other entities without consideration.

IMG and Carter sought a continuance of the hearing on the motion, pursuant to Rule 56(f), Ala. R. Civ. P., so that they could take Platt's deposition. In addition, IMG and Carter submitted in opposition to the motion for a summary judgment Carter's affidavit, in which he stated that he "did not transfer the mortgage from [IMG] to Liberty ... with actual intent to hinder, delay, or defraud the [Bank]." The trial court continued the hearing on the summary-judgment motion, and IMG and Carter took Platt's deposition, which they later submitted as a supplemental exhibit in opposition to the Bank's motion.

The trial court held a hearing on the summary-judgment motion on March 22, 2018, after which IMG and Carter submitted a "supplemental opposition" in which they contended that the Bank had, for the first time at the hearing, indicated its reliance on Ala. Code 1975, § 8-9A-5(a), which governs constructive fraudulent transfers, and that, therefore, the trial court should not consider the Bank's argument regarding constructive fraud. In addition, IMG and Carter contended that, insofar as the trial court might accept the Bank's claim grounded on constructive fraud under § 8-9A-5(a), that claim was barred by the applicable four-year statute of limitations set out in Ala. Code 1975, § 8-9A-9(3), because the transfer from IMG to Liberty was made in August 2010 and the Bank did not bring suit until April 2017.

In reply, the Bank argued that the applicability of § 8-9A-5 was not a surprise to IMG and Carter because, although that particular statute had not been cited in the complaint, it had been specifically raised in its reply to IMG and Carter's response in opposition to the motion for a summary judgment. Furthermore, the Bank pointed out that it had alleged in its complaint and amended complaint, and had contended in its motion for a summary judgment, that the transfer of the mortgage from IMG to Liberty had been accomplished without the payment of consideration, a fact that would support the application of § 8-9A-5(a). Finally, the Bank contended that the statute of limitations on its claim alleging constructive fraud under § 8-9A-5(a) had not expired for two reasons. According to the Bank, Ala. Code 1975, § 6-2-3, known as the "savings clause," had prevented the running of the statute of limitations until the date upon which the Bank had discovered the fraudulent transfer of the mortgage, which date, it said, was October 5, 2015. In addition, the Bank contended that, pursuant to 11 U.S.C. § 108(c), the statute of limitations was suspended during the pendency of Carter's bankruptcy case.

On March 28, 2018, the trial court entered a summary judgment in favor of the Bank. The judgment specifically found that "[i]t is undisputed that [IMG] transferred the mortgage to Liberty ... without consideration." Based on this finding, the trial court set aside the transfer of the mortgage from IMG to Liberty and "all subsequent transfers" and concluded that the Bank could execute on the mortgage. See Ala. Code 1975, 8-9A-7(b) (providing that, "[i]f a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds"). IMG and Carter appealed to the Alabama Supreme Court on April 25, 2018, and our supreme court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal, IMG and Carter argue that the trial court erred in entering a summary judgment in favor of the Bank based on § 8-9A-5(a) because that particular statute was not raised by the Bank until its reply to IMG and Carter's response in opposition to the Bank's summary-judgment motion and because the statute of limitations on a claim alleging constructive fraud under § 8-9A-5(a) had run. IMG and Carter, noting that issues of fraudulent intent are typically inappropriate for resolution via a summary judgment, see Andrews v. RBL, L.L.C. (In re Vista Bella), 511 B.R. 163, 194-95 (Bankr. S.D. Ala. 2014) (" Vista Bella" ); Premier Capital Funding, Inc. v. Earle (In re Earle), 307 B.R. 276, 293 (Bankr. S.D. Ala. 2002) (" Earle"), also argue that genuine issues of material fact precluded the entry of a summary judgment on the Bank's claims under § 8-9A-4. In addition, IMG and Carter contend that the trial court's judgment should be set aside because the Bank failed to name all subsequent transferees, or, specifically, Clarence and Phyllis, as parties to the action. Finally, IMG and Carter argue that the trial court erred in entering a summary judgment in favor of the Bank against Carter because, they contend, the Bank is no longer Carter's creditor because his obligations to the Bank were extinguished by his bankruptcy discharge.

As a preliminary matter, we first address whether the estates of either or both Clarence and Phyllis should have been named as parties in the Bank's action. Relying on Aucoin v. Aucoin, 727 So.2d 824 (Ala. Civ. App. 1998), IMG and Carter contend that all grantees of the mortgage transfers at issue were required to be named as parties to the Bank's action. Indeed, in Aucoin, we explained that the grantee, who was the current owner of the property, was a necessary party to an action seeking to set aside the conveyance as fraudulent. Aucoin, 727 So.2d at 826. However, Aucoin does not hold that all grantees in the chain of title, regardless of their current interest in the property, are necessary parties in an action seeking to set aside a fraudulent transfer. In Aucoin, we relied on Simmons v. Clark Equipment Credit Corp., 554 So.2d 398, 399 (Ala. 1989), as support for our agreement with the grantee in Aucoin that she was a necessary party. A reading of Simmons makes it immediately clear that only those grantees who still hold title to or an interest in the property at issue must be named as parties in an action seeking to assail a transfer as fraudulent. Simmons, 554 So.2d at 399 ("The grantee, where it still retains title to the property ..., is a necessary party to an action by the grantor's creditors to set aside a conveyance as fraudulent."). Clarence and Phyllis are both deceased, and Carter, acting as executor of Phyllis's estate, transferred the mortgage out of Phyllis's estate to himself, so neither Clarence's nor Phyllis's estate have a current interest in the mortgage, and they were not required to have been named as parties in this action.

Carter also argues that his discharge in bankruptcy prevents the Bank from securing a judgment in its favor against him, personally. Although Carter is correct insofar as he posits that a bankruptcy discharge serves to extinguish the personal liability of a debtor, see 11 U.S.C. § 524(a)(2), he is incorrect that his bankruptcy discharge isolates the transfer of the mortgage from the Bank's reach in this fraudulent-transfer action. See 11 U.S.C. § 524(e). The transfer the Bank attacked as fraudulent in this action was the transfer of the mortgage from IMG to Liberty. Thus, the Bank, acting as IMG's creditor, seeks to reach the transferred mortgage to satisfy its claim against IMG. That is, the Bank's action against Carter is premised not on any personal liability he may owe to the Bank, if any, but on his status as a subsequent transferee of the mortgage.

In Roberson v. Johnson, 950 So.2d 317 (Ala. Civ. App. 2006), we explained that a bankruptcy discharge of Gene Johnson and Vicki Johnson ("the debtors") did not insulate a third-party transferee from a fraudulent-transfer action instituted by the creditor, Roberson. In reaching our holding, this court discussed National Union Fire Insurance Co. of Pittsburgh v. Grusky, 763 So.2d 1206 (Fla. Dist. Ct. App. 2000).

"In ... Grusky, ... a federal bankruptcy court had discharged a debtor's debt and one of the debtor's creditors sought, in a subsequent state-court action, to have a transfer from the debtor to a third party declared fraudulent. The state trial court entered a summary judgment in the third party's favor and the creditor appealed; the state appellate court reversed the entry of the summary judgment in favor of the transferee. In concluding that the bankruptcy court's discharge of the debt did not affect the creditor's rights to pursue an action against the transferee, the appellate court noted:
" ' "[T]he discharge provision of the Bankruptcy Code, 11 U.S.C. § 524, consistent with fundamental bankruptcy policy, provides the debtor with a fresh start free from the burdens of preexisting liabilities. Under § 524, the discharge only (i) extinguishes personal liability of the debtor; and (ii) prevents creditors whose claims arose pre-bankruptcy from any actions to impose personal liability on the debtor. 11 U.S.C. § 524 (1978). Section 524(e) expressly provides that the 'discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.' § 524(e).
" ' "Under § 16 of the Bankruptcy Act of 1898, Ch. 541, 30 Stat. 544, 550 (1898), the limitation of discharge provision restricted actions to those against co-debtors, guarantors, or other sureties. The language of § 524(e) of the 1978 Bankruptcy Code reveals a congressional intent to broaden the rights of creditors, by preserving their actions against third parties and their property, and to restrict the effect of a discharge solely to a release of the personal liability of the debtor." '
" National Union Fire Ins. Co. of Pittsburgh, Pa. v. Grusky, 763 So.2d at 1208-09 (quoting Dixon v. Bennett, 72 Md. App. 620, 637, 531 A.2d 1318, 1326 (1987) )."

Roberson, 950 So.2d at 321 (emphasis added).

As we explained in Roberson, "[a]lthough the discharge of [the debtors'] debts may have given [them] a 'fresh start,' the bankruptcy court's discharge of the debt owed to Roberson had no effect on Roberson's rights with regard to the alleged fraudulent transfer to [a third party]." Id. Thus, Roberson was permitted to seek to set aside the transfer of certain funds to the third party, despite the fact that the debtors had received a bankruptcy discharge. Id. The same result obtains in the present case.

We turn now to the substantive issues decided by the summary judgment. Before we begin, however, we note that the Bank, as the plaintiff, bore the burden of proof on its claims at trial, and, therefore, we must be mindful that its burden on a motion for a summary judgment is different than the burden placed on a defendant seeking a summary judgment in its favor.

" ' " '[T]he manner in which the [summary-judgment] movant's burden of production is met depends upon which party has the burden of proof ... at trial.' " ' Denmark v. Mercantile Stores Co., 844 So.2d 1189, 1195 (Ala. 2002) (quoting Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala. 1999), quoting in turn Berner v. Caldwell, 543 So.2d 686, 691 (Ala. 1989) (Houston, J., concurring specially) ). If the movant is the plaintiff with the ultimate burden of proof, his ' "proof must be such that he would be entitled to a directed verdict [now referred to as a judgment as a matter of law, see Rule 50, Ala. R. Civ. P.] if this evidence was not controverted at trial." ' Ex parte General Motors, 769 So.2d at 909 (quoting Berner, 543 So.2d at 688 ).
" 'The first prerequisite for [a summary judgment] in favor of a movant who asserts a claim ... is that the claim ... be valid in legal theory, if its validity be challenged. See Driver v. National Sec. Fire & Cas. Co., 658 So.2d 390 (Ala. 1995). The second prerequisite for [a summary judgment] in favor of such a movant, who necessarily bears the burden of proof, American Furniture Galleries v. McWane, Inc., 477 So.2d 369 (Ala. 1985), McKerley v. Etowah-DeKalb-Cherokee Mental Health Board, Inc., 686 So.2d 1194 (Ala. Civ. App. 1996), and Oliver v. Hayes International Corp., 456 So.2d 802 (Ala. Civ. App. 1984), is that each contested element of the claim ... be supported by substantial evidence. See Driver, supra, and McKerley, supra. The third prerequisite for [a summary judgment] in favor of such a movant is that the record be devoid of substantial evidence rebutting the movant's evidence on any essential element of the claim.... See Driver, supra, and First Fin. Ins. Co. v. Tillery, 626 So.2d 1252 (Ala. 1993). Substantial rebutting evidence would create an issue of fact to be tried by the finder of fact and therefore would preclude [a summary judgment]. See Driver, supra, and First Financial, supra. [Summary judgment] in favor of the party who asserts the claim ... is not appropriate unless all three of these prerequisites coexist. See Driver, supra, and First Financial, supra, McKerley, supra, and Oliver, supra. ' "

Ross v. Rosen-Rager, 67 So.3d 29, 35 (Ala. 2010) (quoting Ex parte Helms, 873 So.2d 1139, 1143 (Ala. 2003) ).

In its motion for a summary judgment, the Bank argued that IMG had

"transferred the mortgage to Liberty ... for no consideration in an effort to put the asset out of reach of its creditors in violation of Code of Alabama § 8-9A-4. As a result, this Honorable Court may set aside a transfer to any subsequent transferee other than a good faith purchaser for value without notice under Code of Alabama § 8-9A-8(b)(1). As the principal of IMG, ... Carter, was involved in each and every transfer of the property, all such transfers were 'with notice' of the original fraudulent transfer. As a result, no subsequent transferee qualifies for status as a bona fide purchaser for value without notice."

In its brief in support of its motion, the Bank further developed its argument, contending that

"[t]he undisputed facts establish that the 2010 transfer of the mortgage constitutes a fraudulent transfer as a matter of law. See Code of Alabama § 8-9A-4(a). In fact, two of the so-called 'badges of fraud' listed in Section 4(b) are not even in dispute in this case: the transfer was to an insider [Liberty, which was an affiliate of IMG] - § 8-9A-4(b)(1) - and the transferee paid no consideration - § 8-9A-4(b)(8)."

Based on the above undisputed facts, the Bank contended, "the original transfer was made with the actual intent to hinder, delay, or defraud [the Bank]."

As noted above, IMG and Carter sought a continuance of the hearing on the motion for a summary judgment, which the trial court granted. However, in their initial response in opposition to the motion for a summary judgment, they denied, in Carter's affidavit, that Carter, as president of IMG, had transferred the mortgage to Liberty with the intent to hinder, delay, or defraud the Bank. In addition, IMG and Carter contended that the issues of intent and whether the transfer of the mortgage was fraudulent were inappropriate for resolution by summary judgment because the issues turned on credibility and the resolution of fact questions by the trial court.

In reply to IMG's and Carter's contention that the fraudulent-transfer issues were too fact-intensive to be appropriate for resolution on a motion for a summary judgment, the Bank argued that Carter's affidavit could not create a genuine issue of material fact in light of his testimony at the hearing on the preliminary injunction, see Lady Corinne Trawlers, Inc. v. Zurich Ins. Co., 507 So.2d 915, 917-18 (Ala. 1987) (indicating that an affidavit that contradicts prior sworn testimony without explanation may be considered a sham affidavit and will not create a genuine issue of material fact), and that, based on that testimony and the admission in IMG and Carter's answer that the August 2010 transfer was made without consideration, the transfer of the mortgage from IMG to Liberty was fraudulent under § 8-9A-5(a), which states:

"A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer."

In addition, regarding Carter's attempt to paint himself as a subsequent transferee protected by Ala. Code 1975 § 8-9A-8, the Bank asserted that Carter's knowledge of the original fraud and his knowledge and direction of the subsequent transfers prevented him from being considered a bona fide transferee for value. See McClintock v. McEachin, 249 Ala. 591, 592, 32 So.2d 305, 306 (1947) (noting that, in order to attack a subsequent transferee's status as a good-faith transferee, the plaintiff must present evidence of "a participation therein by the [transferee] with knowledge of such intent [to hinder, delay, or defraud the creditor] or with notice of some fact calculated to put him on inquiry which, if followed up, would lead to a discovery of the fraudulent intent").

In their supplemental opposition to the Bank's motion for a summary judgment, IMG and Carter objected vehemently to the Bank's attempt to rely on § 8-9A-5(a) despite having failed to specifically plead that particular statute in its complaint. Furthermore, if the trial court were to allow the Bank to travel under § 8-9A-5(a), IMG and Carter objected to the timeliness of the complaint, noting that the Bank's claim for relief from a fraudulent transfer under § 8-9A-5(a) was required to be brought within four years after the date the transfer was made, or, in this case, by August 2014, nearly three years before the Bank commenced its action. See Ala. Code 1975, § 8-9A-9(3).

In reply to the supplemental opposition, the Bank first asserted that its complaint had been brought pursuant to the AUFTA and that it was not required to have cited each and every subsection of the act upon which it intended to rely; the Bank contended, relying on Almon v. Byrd, 336 So.2d 183, 187 (Ala. 1976), that its allegations that the mortgage transfer from IMG to Liberty was made without consideration and that the transfer had resulted in its inability to receive payment of its judgments were sufficient to plead a fraudulent transfer under § 8-9A-5(a) without reference to the particular statute. Furthermore, in answer to IMG and Carter's assertion of the statute of limitations as a bar to an action under § 8-9A-5(a), the Bank contended that the savings clause of § 6-2-3 applied to its cause of action under the AUFTA. According to the Bank, the testimony of John Platt, its vice president, indicated that the Bank was not aware of the 2010 transfer of the mortgage until October 5, 2015, when Carter filed for bankruptcy. Thus, the Bank concluded, its complaint was timely filed because it was filed within two years of the discovery of the fraud. Even if the trial court was convinced that its claim under § 8-9A-5(a) had been asserted too late, the Bank argued, it was entitled to a summary judgment under § 8-9A-4 because "the badges of fraud" set out in § 8-9A-4(b) were present in each of the transfers of the mortgage.

The trial court did not specifically indicate whether it had concluded that the Bank's § 8-9A-5(a) claim was timely asserted based on the application of § 6-2-3 or whether it was determining only the § 8-9A-4 claim. The judgment states that "there are no genuine issues of material fact in dispute," determines that, as a matter of undisputed fact, IMG transferred the mortgage to Liberty without consideration, and, therefore, declares that the 2010 transfer was fraudulent and should be set aside. The trial court also indicated in its judgment that all other subsequent transfers of the mortgage were set aside and stated that "[t]he mortgage is subject to execution by [the Bank] in enforcing its rights as a judgment creditor."

Based on the language in the trial court's judgment, IMG and Carter argue that it is likely that the trial court considered only the Bank's § 8-9A-5(a) claim in deciding the summary-judgment motion. Thus, they first argue that the § 8-9A-5(a) claim was not properly and timely asserted by the Bank and also that the claim was barred by the statute of limitations. We cannot agree with IMG and Carter that the Bank's failure to specifically include in its complaint a reference to § 8-9A-5(a), in light of the allegations of the complaint, which clearly support relief under that statute, should bar the Bank from proceeding on that alternate theory of relief. See Phillips Colleges of Alabama, Inc. v. Lester, 622 So.2d 308, 311 (Ala. 1993) (noting that "under modern rules of civil practice the pleadings generally need only to put the defending party on notice of the claims against him"). Furthermore, in light of the parties' ability to fully develop arguments for and against the Bank's right to relief under that statute before the trial court, we can find no prejudice warranting the refusal to allow the Bank to proceed under § 8-9A-5(a). See, generally, Bracy v. Sippial Elec. Co., 379 So.2d 582, 584 (Ala. 1980) (noting, in the context of the liberal allowance of amendments, that "[w]here an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party").

More difficult to resolve is the question whether the statute of limitations bars the Bank's complaint under § 8-9A-5(a). Undisputedly, the fraudulent transfer under attack in this action is the August 2010 transfer of the mortgage from IMG to Liberty, which occurred more than six years before the Bank commenced this action in April 2017. The statute of limitations, as set out in § 8-9A-9(3), bars actions to set aside fraudulent transfers under § 8-9A-5(a) after the expiration of four years from the date of the transfer. The Bank contends that the savings clause of § 6-2-3 prevents the operation of the statute of limitations under the particular circumstances of this case.

We first note that, as IMG and Carter generally argue, in order to use § 6-2-3 to stay the running of the statute of limitations, a party must show that it comes within that statute. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala. 1979). According to our supreme court in Amason, "generally alleg[ing] that the fraud was not discovered until [a certain date]" is insufficient. Amason, 369 So.2d at 551. Instead, a party seeking to invoke § 6-2-3 must

" '(1) ... aver with precision the facts and circumstances which allegedly were not discovered and to which [plaintiff] allegedly w[as] defrauded, (2) ... aver how or when these facts were discovered, (3) ... aver what prevented these facts from being discovered before the bar of the statute became complete and (4) ... aver facts acquitting [the plaintiff] of all knowledge of facts which ought to have put [it] on inquiry.' "

Amason, 369 So.2d at 550 (quoting Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 396, 281 So.2d 636, 642 (1973) ).

The Bank first asserted the savings clause in its reply to the supplemental opposition to its motion for a summary judgment. Taking the statements in the Bank's reply as averments and considering the deposition testimony of Platt as evidence supporting those averments, all that the Bank proved in support of its attempt to come within the savings clause was that it had not discovered the 2010 transfer of the mortgage until October 5, 2015, when Carter filed for bankruptcy. What the Bank did not show was that it lacked " 'knowledge of facts which ought to have put [it] on inquiry.' " Id. As a result, based on the requirements to establish the applicability of § 6-2-3 set out in Amason, the Bank has not presented sufficient evidence demonstrating that each element regarding the question whether it comes within § 6-2-3 is supported by substantial evidence, and, therefore, the issue whether the savings clause operates in the Bank's favor was not properly resolved at the summary-judgment stage. Accordingly, insofar as the trial court's judgment is based on a conclusion that the Bank proved a fraudulent transfer under § 8-9A-5(a), that judgment is reversed. That being determined, we pretermit discussion of whether recordation of the transfers of the mortgage were constructive notice to the Bank of the existence of those transfers, see, generally, Haines v. Tonning, 579 So.2d 1308, 1310 (Ala. 1991) (quoting Christopher v. Shockley, 199 Ala. 681, 682, 75 So. 158, 158 (1917) ) (noting that "the proper recordation of an instrument constitutes 'conclusive notice to all the world of everything that appears from the face' of the instrument"), and whether recordation was sufficient to have prompted the Bank to make inquiry regarding the validity of the transfer. See, e.g., Boyce v. Cassese, 941 So.2d 932, 943 (Ala. 2006) (indicating that the purchasers of property were charged with notice of a recorded agreement relating to that property); but see McCollum v. Burton, 220 Ala. 629, 630-31, 127 So. 224, 225 (1930), and Desak v. Vanlandingham, 98 So.3d 710, 713 (Fla. Dist. Ct. App. 2012) (determining that "the act of recording a deed does not without more, as a matter of law, state the 'savings clause year' " under Fla. Stat. § 726.110 (2002) ).

We turn now to whether the trial court's summary judgment in favor of the Bank can be affirmed based on § 8-9A-4(a), which requires proof that a debtor intended to "hinder, delay, or defraud" a creditor by transferring an asset. The Bank argues that the evidence it presented established that IMG and Carter intended to hinder, delay, or defraud the Bank. Specifically, the Bank contends that the evidence undisputedly established at least three indicia, or "badges," of fraud set out in Ala. Code 1975, § 8-9A-4(b) :

"(b) In determining actual intent under subsection (a), consideration may be given, among other factors, to whether:
"(1) The transfer was to an insider;
"(2) The debtor retained possession or control of the property transferred after the transfer;
"(3) The transfer was disclosed or concealed;
"(4) Before the transfer was made the debtor had been sued or threatened with suit;
"(5) The transfer was of substantially all the debtor's assets;
"(6) The debtor absconded;
"(7) The debtor removed or concealed assets;
"(8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred;
"(9) The debtor was insolvent or became insolvent shortly after the transfer was made;
"(10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
"(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor."

According to the Bank, it presented undisputed evidence of factors (1), (8), and (9) because, it contends, the evidence of record indicates that the transfer was to an insider, that the transfer was not for "reasonably equivalent value," and that the transfer rendered IMG insolvent. However, as mentioned in footnote 7, supra, the Bank failed to establish that IMG's insolvency was an undisputed fact. The Bank asserted before the trial court in various motions and replies that Carter had testified to IMG's insolvency at the hearing on the preliminary injunction. However, no transcript of any testimony from that hearing appears in the record, and, thus, the Bank presented no evidence of this fact to support its motion for a summary judgment. See Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570 (11th Cir. 1987) ("The testimony produced at the preliminary injunction hearing was not transcribed until after the district court ruled on the summary judgment motion. We conclude that, even though the same district judge presided at both the preliminary injunction and summary judgment stages, appellant was obligated to produce a written transcript of the hearing in order to rely upon this testimony as evidence for consideration on summary judgment."). Therefore, the record supports a conclusion that the Bank presented evidence of only factors (1) and (8).

In any event, as IMG and Carter contend, proof of one or more of the factors set out in § 8-9A-4(b) does not compel a conclusion that a creditor is entitled to a judgment in its favor under the AUFTA. See Vista Bella, 511 B.R. at 194-95 ; Earle, 307 B.R. at 293.

"No specific combination of badges is necessary for a finding of actual intent and the presence of any of the badges of fraud does not compel such a finding. In re Manhattan Inv. Fund Ltd., 397 B.R. 1, 10 n.13 (S.D.N.Y. 2007). The badges merely highlight circumstances that suggest that a transfer was made with fraudulent intent. Id."

Vista Bella, 511 B.R. at 194-95.

In addition, the Earle court explained that

"[t]he fact that [the creditor] may have satisfied some of the objective factors in § 8-9A-4(b) does not mandate a finding of actual intent to defraud. This is in part because 'actual fraudulent intent requires a subjective evaluation of the debtor's motive.' In re Jeffrey Bigelow Design Group, 956 F.2d 479, 484 (4th Cir. 1992). Although consideration of the objective factors has a bearing 'on whether constructive fraudulent intent exists ... it is not conclusive for actual fraudulent intent.' Id."

Earle, 307 B.R. at 293 n.9.

Moreover, "it is clear that actual intent to hinder, delay, or defraud is a heavily fact-dependent question." Vista Bella, 511 B.R. at 195. "Actual fraud ... most often ... is revealed through circumstantial evidence," and "intention is a mental emotion, of which the external signs are the acts and declarations of the parties, taken in connection with the concomitant circumstances." Clear Creek, Inc. v. Royal American Corp. (In re International Resorts, Inc.), 46 B.R. 405, 413 (N.D. Ala. 2984). As the Vista Bella court explained, "[f]raudulent transfer issues ... generally come down to the credibility of witnesses." Vista Bella, 511 B.R. at 193. Thus, determinations regarding actual intent to "hinder, delay, or defraud" are not well suited for summary judgment. See SE Prop. Holdings, LLC v. Braswell, 255 F.Supp.3d 1187, 1202 (S.D. Ala. 2017) (declining to enter a summary for a defendant on a claim under § 8-9A-4(a) based on, in part, "the highly fact-specific nature of the actual intent query").

Although the Bank presented evidence from which a fact-finder could conclude that IMG and Carter possessed the intent to "hinder, delay, or defraud" the Bank, Carter denied in his affidavit that he, as president of IMG, acted with such intent. Therefore, it is up to the fact-finder to weigh the credibility of the witnesses, to balance the facts relating to the several factors, and to decide the true intent behind the transfer. See Earle, 307 B.R. at 291-94 (discussing and weighing the evidence concerning the several factors to determine whether the debtor had the intent to defraud). We cannot agree with the Bank that it met its burden of establishing without dispute that IMG and Carter acted with the requisite intent such that a summary judgment in the Bank's favor on its claim under § 8-9A-4(a) was appropriate, and, insofar as the summary judgment was premised on that claim, it is reversed.

Based on the foregoing discussion, we reverse the summary judgment in favor of the Bank, and we remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Pittman and Moore, JJ., concur.

Donaldson, J., recuses himself.

      On October 1, 2018, attorneys for Carter filed in this court a suggestion of his death. We note that Rule 43(a), Ala. R. App. P., provides that an appeal "shall not abate" upon the suggestion of the death of a party. See Cox v. Dodd, 242 Ala. 37, 39, 4 So.2d 736, 737 (1941) ("It is a further general rule that the death of a party, pending an appeal ..., furnishes no grounds for the abatement of the suit. In such case it is the common practice for the appellate court to affirm or reverse the judgment nunc pro tunc."). Instead, this court is to dispose of the appeal as it may direct. Rule 43(a) ; we will therefore proceed to a decision on the merits of this appeal. See Woodruff v. Gazebo East Apartments, 181 So.3d 1076, 1080 (Ala. Civ. App. 2015).

      Although IMG was administratively dissolved, we assume, without deciding, that the Bank's claims against it may have been properly brought pursuant to Ga. Code Ann., § 14-2-1421(c) ; however, because neither party has addressed the issue, we do not so hold. See Watts v. TI, Inc., 561 So.2d 1057, 1059 (Ala. 1990) (indicating that we apply the law of the state of incorporation regarding "the survival of a remedy after ... dissolution").

      We note that IMG and Carter objected to the Bank's change in legal theories in its reply to their response in opposition to the Bank's summary-judgment motion, and, therefore, that this case is unlike Langston v. Bessemer Carraway Medical Center, Inc., 439 So.2d 705, 706 (Ala. Civ. App. 1983), in which the failure of the nonmovant to object to a theory asserted for the first time in a summary-judgment motion resulted in a waiver of its objection to that newly advanced theory.

      Indeed, although it did not cite to § 8-9A-5(a), the Bank quoted from and relied upon J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 844 (Ala. 1981), in which our supreme court relied on the principle of constructive fraud based on inadequate consideration.

      To the extent that IMG and Carter contend that the trial court erred by setting aside "all subsequent transfers," i.e., specifically the transfer to Clarence and Phyllis, because they were allegedly good-faith transferees whose rights are "due to be protected," we note that, regardless of the language of the trial court's judgment, the transfers of the mortgage have not actually been set aside, and the mortgage remains Carter's asset.
      "Alabama law is consistent with that of those jurisdictions that hold that the effect of setting aside a fraudulent transfer is not to revest title in the debtor. This Court has held that 'a conveyance or transfer made to hinder, delay, or defraud creditors is valid and operative between the parties when it has been fully consummated; after it is fully consummated, neither party can rescind it.' Hill v. Farmers & Merchants Bank of Waterloo, 641 So.2d 788, 790 (Ala. 1994). Thus, in Alabama, a court's setting aside of a fraudulent transfer does not revest title in the debtor. Instead, the transferee continues to own the fraudulently transferred assets; the transfer is void only as to the creditor, and the creditor can execute on those assets directly. § 8-9A-7(b), Ala. Code 1975 ('If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.')."
      Ex parte HealthSouth Corp., 974 So.2d 288, 297 (Ala. 2007).

      We realize that, in its reply to IMG and Carter's supplemental opposition to the motion for a summary judgment, the Bank indicated that it was attacking the transfer from Phyllis's estate to Carter; however, the remainder of the arguments presented to the trial court and the judgment itself indicate that the Bank intended to, and did, attack the validity of the initial transfer of the mortgage from IMG to Liberty as being fraudulent.

      One other significant fact was presented as undisputed by the Bank: that IMG and Carter had been rendered insolvent in 2008 and remained so at the time of the 2010 transfer of the mortgage. As will be explained in the discussion, infra, this fact is not satisfactorily proven to be undisputed.

      But see footnote 7, supra, and discussion, infra.

      The Bank further asserted that, pursuant to 11 U.S.C. § 108(c), the statute of limitations in non-bankruptcy proceedings are tolled during the pendency of the debtor's bankruptcy action. However, simple math indicates that reliance on that bankruptcy statute is unavailing, because the statute of limitations would have run in August 2014, before Carter filed for bankruptcy, or would not have begun to run until after the discovery of the fraud, which, according to the Bank, was in October 2015, and the Bank timely filed its complaint if, indeed, § 6-2-3 prevented the running of the statute until the Bank's knowledge of the fraud.

      We note that constructive fraud under § 8-9A-5(a) requires proof (1) that the transfer was made for less than "reasonably equivalent value" and (2) that the debtor was insolvent at the time of the transfer or became insolvent as a result of that transfer.

      We note, however, that, even if the Bank's averments were sufficient under Amason to demonstrate that its claim under § 8-9A-5(a) falls within § 6-2-3, the summary judgment in the Bank's favor on that particular issue would likely be inappropriate. See Papastefan v. B & L Constr. Co., Inc. of Mobile, 356 So.2d 158, 162 (Ala. 1978). "As a general rule, the question of when the plaintiff discovered, or should have discovered, the fraud is reserved for the jury. Green[ v. Wedowee Hosp. ], 584 So.2d [1309,] 1312 [ (Ala. 1991) ] ; Hicks[ v. Globe Life & Accident Ins. Co. ], 584 So.2d [458,] 463 [ (Ala. 1991) ]." Chambless-Killingsworth & Assocs. P.C. v. Osmose Wood Preserving, Inc., 695 So.2d 25, 27 (Ala. Civ. App. 1996).

      In McCollum, our supreme court observed that a purchaser is entitled to rely on the legal presumption that a conveyance is valid unless the purchaser is aware of facts that would put him or her on inquiry of the fraudulent nature of that transfer.
      "We recognize the well-established rule that notice is imputed to a purchaser of infirmities and incumbrances appearing in his chain of title. Johnson v. Thweatt, 18 Ala. 741 [ (1851) ] ; Burnwell Coal Co. v. Setzer, 203 Ala. 395, 83 So. 139 [ (1919) ]. But manifestly the execution of such conveyance, as above noted, does not injuriously affect the rights of the [purchasers], unless the recitals of the deed disclosing it was not founded on a valuable consideration suffice to put them on inquiry as to whether or not it was fraudulent. Such a disclosure is not sufficient for this purpose. The legal presumption prevailed that the conveyance was valid and not fraudulent, and they had a right to act upon such presumption until some other fact was brought to their mind that it was fraudulent. McKee v. West, 141 Ala. 531, 37 So. 740, 109 Am. St. Rep. 54 [ (1904) ] ; Merchants' Bank v. Parrish, 214 Ala. 96, 106 So. 504 [ (1925) ]."
      McCollum, 220 Ala. at 630-31, 127 So. at 225.