author: MURDOCK, Justice.

text:
    Ex parte PINNOAK RESOURCES, LLC, et al. (In re Linda Weekley et al. v. U.S. Steel Mining Company et al. and Jo Ann Waid et al. v. U.S. Steel Mining Company et al.)
    1070984.
    Supreme Court of Alabama.
    June 26, 2009.

      Sid J. Trant, Rusha C. Smith, Michael F. Walker, Nathan Ryan, and John C. Neiman, Jr., of Bradley Arant Rose & White LLP, Birmingham, for petitioners.
    Bill Thomason and Becky Thomason of Thomason-Maples, LLC, Bessemer, for respondents Linda Weekley et al.
    Edward McF. Johnson, Craig L. Lowell, and Dennis G. Pantazis of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for respondents Jo Ann Waid et al.
    Judge Dan C. King III, Bessemer, as respondent.
   MURDOCK, Justice.

Oak Grove Resources, LLC, and several affiliated business entities (“the Oak Grove defendants”) petition this Court for a writ of mandamus directing the Jefferson Circuit Court to dismiss two consolidated cases against them. We deny the petition in part and dismiss it in part.

I. Facts and Procedural History

On September 16, 1996, Linda Weekley and approximately 185 other individuals (“the Weekley plaintiffs”) filed an action in the Bessemer Division of the Jefferson Circuit Court alleging trespass, nuisance, negligence, and wantonness against U.S. Steel Mining Company and affiliated business entities (“the USM defendants”) for allegedly allowing coal dust from U.S. Steel Mining’s coal-processing plant in Concord (“the plant”) to pollute their neighborhood (“the Weekley action”). The action sought compensatory damages for injury to the Weekley plaintiffs’ properties and injunctive relief to enjoin the USM defendants from emitting pollution onto the affected properties.

On July 31, 1997, Tommy White filed an action (“the White class action”) identical to that filed by the Weekley plaintiffs against the USM defendants, except that White sought and received class-action treatment on behalf of everyone living within a five-mile radius of the plant. Like the Weekley plaintiffs, the plaintiffs in the White class action sought monetary and injunctive relief against the USM defendants for U.S. Steel Mining’s operation of the plant. Both cases were assigned to Judge Dan C. King.

In March 1999, eight of the Weekley plaintiffs tried their case to a jury; the jury returned a verdict in favor of the USM defendants. On August 28, 2002, the trial court granted those plaintiffs’ motion for a new trial. The USM defendants appealed that order to this Court. On October 2, 2002, while that appeal was pending, the Weekley plaintiffs entered into a settlement agreement with the USM defendants regarding their claims against the USM defendants (“the Weekley settlement”). The Weekley settlement provided, in pertinent part:

“[The Weekley plaintiffs’] claims for monetary damages will be dismissed with prejudice on payment of the sum of Three Million Dollars. Payment must be made immediately, and deposited into the trust account of [the Weekley plaintiffs’] counsel. Immediately upon said deposit, each Plaintiff, or their Court-appointed guardian or other legally authorized representative, will dismiss his/ her monetary claims, and the trial court shall enter an order of dismissal, costs taxed to defendant.
“[The Weekley plaintiffs’] claims for equitable and injunctive relief will remain pending, but inactive, during the pendency of the class action claims’ for injunctive relief made in [the White class action] subject to the stipulation that, under no circumstances, shall the pending claims for equitable and injunctive relief in [the Weekley action] remain inactive longer than 18 months following the date of dismissal of [the Weekley plaintiffs’] monetary claims for relief.
“In further consideration for settlement, each [Weekley ] plaintiff will execute an irrevocable and binding agreement ... with respect to [the White class action, which shall provide]:
“4. [The Weekley plaintiffs] will not file lawsuits against [the USM] defendants, or take legal action in [the White class action], before the expiration of 18 months following dismissal of [the Weekley plaintiffs’] monetary-claims, or before the date that the injunctive relief awarded by the trial court in [the White class action] becomes a final non-appealable order, whichever date first occurs. In other words, under no circumstance shall this provision remain in force for more than 18 months following the date of dismissal of [the Weekley plaintiffs’] monetary claims.
“5. The claim for injunctive relief made in [the Weekley action] shall be dismissed on such date as the trial court’s order of specific injunctive relief becomes final and non-appealable in [the White class action] but only if this date occurs within 18 months of the date of dismissal of [the Weekley plaintiffs’] monetary claims.
“6. On and after the expiration of said 18 month period, [the Weekley plaintiffs] shall not be bound by the agreements set out in Items 1, 2, 8, 4, and 5 above, but will be free to take such legal action in [the White class action], or in any other court proceeding, as may be authorized by Alabama law, both case law and statutory law, or to enforce such injunctive relief as may have been awarded by the Court in [the White class action], or to seek such further injunctive remedies as may be permitted by law with respect to the issues of fugitive dust including coal dust that are raised in this action and in [the White class action].”

Two days later, on October 4, 2002, the plaintiffs in the White class action settled with the USM defendants (“the White settlement”). The White settlement defined the non-opt-out plaintiff class as “all natural persons, who at any time between and including January 1, 1990 and the Effective Date ... lived on, leased or owned property within a radius of five (5) miles of operations conducted by [the USM defendants] at [the plant].” The Weekley plaintiffs do not dispute for purposes of this petition that they fall within the definition of membership in the White class action.

The White settlement provides for the plaintiff class in that action to forgo monetary damages in exchange for the agreement of the USM defendants to implement 14 actions toward “the proper maintenance and upgrade of the system to facilitate the goals of eliminating or minimizing particulate matter and other airborne emissions” (“the injunctive relief’). The White settlement provided that the trial court would enter an order “retaining exclusive jurisdiction over this controversy” and that the expert for the plaintiffs in the White class action would “review [the injunctive relief]” and periodically “inspect the facility” and “approve or suggest modifications or additional remedial measures.” The White settlement provided that in exchange for the USM defendants’ compliance with the injunctive relief, the members of the White class would release the USM defendants from all “settled claims.” The White settlement defined “settled claims” as

“all known and unknown claims that [the White class] may presently have or in the future may have against [the USM defendants], arising from or in any way relating in whole or in part to any discharge or release of particulate matter or other airborne emissions during the
Applicable Time Period,[] ... including without limitation all known or unknown claims for present or future damages or remedies, of whatever kind or character ... from exposure occurring prior to the Effective Date ...

The White settlement stated that it was binding on the USM defendants and “their successors and assigns which continue to operate [the plant].”

The White settlement defined the “effective date” of the settlement to be 10 days following the expiration of the time to appeal the judgment in the White class action. Judge King entered the final order in the White class action on October 23, 2002, making the “effective date” of the settlement December 14, 2002. That order “permanently barred and enjoined” the members of the White class from “instituting or prosecuting any action or proceeding seeking relief in any form against [the USM defendants], ... [their] successors [or] assigns, ... relating to and arising out of the Settled Claims, all of which claims or causes of action are hereby declared to be compromised, discharged, settled, and released.” The order also provided that without affecting the finality of the order, “the Coui't ... retains jurisdiction over this action for the purposes of enforcing this Final Judgment Order and for the purposes of exercising its equitable powers supervising [the USM defendants’] commitments in carrying out [the White settlement].” The order specifically found that,

“based on the evidence presented at the Fairness Hearing and the submittals of the parties, that completion and continued performance of the Injunctive Relief set forth in [the White settlement] will prevent or minimize the off-site migration of particulate matter or other airborne emissions generated in the operations of [the plant] such that any such off-site migration will not be so offensive as to impair comfortable enjoyment of property or to materially interfere with the ordinary comforts of human existence.”

During the next 24 months, the USM defendants began implementing the actions required by the injunctive relief granted in the White settlement. On June 30, 2003, Oak Grove Resources, LLC, purchased the plant from the USM defendants, and it is undisputed that Oak Grove is bound by the terms of the White settlement.

Also on October 4, 2002, the Weekley plaintiffs filed a motion in which they moved to

“dismiss[ ] the monetary claims made by [the Weekley plaintiffs] with prejudice, ... with the court retaining jurisdiction to enter an award of costs with respect to the monetary claims and preserving all non-monetary claims, that is, [the Weekley plaintiffs’] claims for injunctive relief.”

In that motion, the Weekley plaintiffs also “requested] that the Court’s order place their claims for injunctive relief on the Court’s administrative docket for a period not to exceed 24 months with leave for [the Weekley plaintiffs] to proceed with injunc-tive relief pursuant to the terms of [the Weekley settlement].” At no time following the entry of Judge King’s final order in the White class action on October 23, 2002, did the Weekley plaintiffs move to dismiss their claims for injunctive relief.

On August 30, 2004, Judge King placed the Weekley action on the administrative docket. On September 20, 2004, the Weekley plaintiffs filed a motion to restore the case to the active docket. The Oak Grove defendants filed a motion to dismiss the Weekley plaintiffs’ remaining claims based on the Weekley settlement, but Judge King denied the motion and granted the Weekley plaintiffs’ motion, noting that “[t]he Court continues to retain jurisdiction” of this case.

On September 22, 2004, Jo Ann Waid and approximately 180 other individuals (“the Waid plaintiffs”) filed an action in the Jefferson Circuit Court against the USM defendants and the Oak Grove defendants, alleging that the plant “caused and continues to cause particulate emissions of coal fines and coal dust into the air” (“the Waid action”). The Waid plaintiffs sought compensatory damages and injunctive relief for the alleged damage to their properties caused by emissions from the plant. The Waid plaintiffs do not dispute that they fall within the definition of membership in the White class action.

The Oak Grove defendants filed a motion to dismiss the Waid action, arguing that it was precluded by the White settlement. In response, the Waid plaintiffs conceded that they had filed the action because they “have been injured and continue to be injured by [the USM defendants’] past and continued emission of airborne pollutants and their continued failure and refusal to abide by the injunc-tive requirements of [the White settlement].” They contend, however, that their action was not precluded by the White settlement because, they say, their claims concerned injuries occurring after the effective date of the White settlement.

On July 14, 2005, Judge King granted the Oak Grove defendants’ motion to dismiss as to the Waid plaintiffs’ claims for monetary damages, concluding that those claims “cannot be maintained while this Court oversees implementation of the in-junctive relief ordered in [the White class action].” The July 14 order further noted that the Waid plaintiffs’ claims for injunc-tive relief would remain pending “and [would] be considered with the Court’s ongoing consideration of the remedial relief ordered in [the White class action].” The Waid plaintiffs appealed, and the Oak Grove defendants moved to dismiss the appeal on the ground that the July 14, 2005, order was not a final order; this Court agreed, dismissing the appeal (case no. 1041764, Oct. 13, 2005). On October 21, 2005, the Waid plaintiffs filed a “Motion to Lift [the] Stay” on their damages claims arising from emissions after the December 2002 effective date, arguing that this Court’s dismissal of the appeal from the July 14, 2005, order as being from a nonfinal judgment meant that the July 14 order was an order staying the litigation.

On March 6, 2006, the Weekley plaintiffs filed a motion to amend their complaint to add the Oak Grove defendants as defendants and to add post-effective-date damages claims, which Judge King granted. On June 5, 2006, the Oak Grove defendants filed a motion to dismiss the Weekley plaintiffs’ amended complaint. In his brief to this Court, Judge King relates that in early 2007 he began reviewing the Waid plaintiffs’ argument (in their motion to lift the stay) related to the specific language of the White settlement, as well as the Week-ley plaintiffs’ motion to amend their complaint. He states that their arguments caused him

“to recognize my earlier dismissal of [the Waid plaintiffs’] post-Effective Date damages claims was in direct contradiction of the express terms of [the White settlement], and that the Waid plaintiffs were correct in their argument that construing [the White settlement] to bar claims that arose after the Effective Date/Applicable Time Period would be void against public policy.”

Judge King states that he was preparing to revise his prior rulings to allow the Waid plaintiffs and the Weekley plaintiffs to pursue their post-effective-date damages claims when he was removed from the bench.

As a result of an indictment, Judge King was disqualified in April 2007. Retired Judge Dan Rogers assumed Judge King’s caseload, including the Waid action and the Weekley action. On October 10, 2007, Judge Rogers held a hearing concerning the Waid plaintiffs’ motion to lift the stay. He denied the motion, noting that no further evidence had been presented to change his mind regarding the logic of Judge King’s July 14, 2005, order dismissing the Waid plaintiffs’ claims for damages. On October 16, 2007, Judge Rogers issued an order in which he found that the Weekley settlement “contemplated dismissal of all of [the Weekley plaintiffs’] claims upon entry of a final judgment order settling [the White class action].” Accordingly, Judge Rogers dismissed the Weekley plaintiffs’ amended complaint without prejudice and “dismissed all and every part of the case remaining that has not been dismissed ... with prejudice, pursuant to [the Weekley settlement].”

The indictment against Judge King was dismissed in October 2007, and he resumed his judicial duties. On November 16, 2007, the Weekley plaintiffs and the Waid plaintiffs filed motions to reconsider Judge Rogers’s orders of October 10 and October 16, which Judge King treated as motions to vacate under Rule 59(e), Ala. R. Civ. P. On November 19, 2007, Judge King vacated the orders of Judge Rogers without receiving a response from the Oak Grove defendants, explaining in his brief to this Court that he was simply doing what he had previously decided he was going to do before his disqualification. The Oak Grove defendants then filed a motion seeking Judge King’s recusal from presiding over the White settlement because one of the lawyers in the White action was also Judge King’s defense attorney in the criminal case against him. Judge King declined to recuse himself, but on February 13, 2008, he issued an order assigning the White action to Judge Mac Parsons.

On November 27, 2007, at the Oak Grove defendants’ request, Judge King set aside his order vacating Judge Rogers’s October 10, 2007, order in the Waid action and Judge Rogers’s October 16, 2007, order in the Weekley action, and set the matter for a hearing. On February 29, 2008, Judge King held a hearing in which he again declared that he was vacating Judge Rogers’s October 10 and October 16, 2007, orders, thus reinstating the Weekley action and the Waid action, but only as to post-effective-date damages claims. In doing so, Judge King stated that he was “clarifying” his July 14, 2005, order to reflect that he now believed he could not bar the Weekley plaintiffs and the Waid plaintiffs from pursuing post-effective-date damages claims. In explaining his reasoning, Judge King stated:

“There was a bar date on [the White class action], and in [the Weekley action and the Waid action] any damages they may have are outside of that bar date and it’s a continuing trespass so it continues to go on. So, number one, what happens in [the White class action] has absolutely zero to do with [the Weekley action and the Waid action] because their damages are separate and apart from those people outside of that bar date.”

Judge King consolidated the Weekley action and the Waid action in his order from the bench. Also at the hearing, the Weekley plaintiffs and the Waid plaintiffs voluntarily dismissed the USM defendants from the case, and they voluntarily dismissed any possible claims accruing before July 1, 2003. Judge King memorialized his rulings from the bench in a written order on March 5, 2008.

The Oak Grove defendants petition this Court for a writ of mandamus, requesting that this Court order the trial court to dismiss the Weekley action and the Waid action as collateral to the White class action. The Oak Grove defendants also contend that the Weekley action should be dismissed on the basis of the Weekley settlement, specifically paragraph 5 of the settlement document.

II. Standard of Review

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The Oak Grove defendants contend that the trial court lacks subject-matter jurisdiction to entertain the Week- ley action and the Waid action. “The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (citing Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000)). “We review de novo whether the trial court had subject-matter jurisdiction.” Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211, 1218 (Ala.2006).

III. Analysis

A. The Weekley Action

Before we evaluate the Oak Grove defendants’ arguments pertaining to the Weekley action, we must review whether this Court possesses jurisdiction to address any aspect of the Weekley action. See, e.g., Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (“[Jjurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero rnotu.”).

Judge Rogers issued an order on October 16, 2007, dismissing the Weekley action in its entirety. On November 16, 2007, the Weekley plaintiffs filed a Rule 59(e), Ala. R. Civ. P., motion to vacate Judge Rogers’s order of dismissal. Judge King issued an order on November 19, 2007, granting the Weekley plaintiffs’ motion to vacate Judge Rogers’s order of dismissal. Because it had been granted, the Weekley plaintiffs’ motion to vacate, like Judge Rogers’s order itself, no longer remained “pending” beginning November 19, 2007.

On November 27, 2007, however, in response to a motion from the Oak Grove defendants, Judge King set aside his November 19 order vacating Judge Rogers’s order of dismissal and set the matter for a hearing. Judge King then held a hearing on February 29, 2008, in which he purported again to vacate Judge Rogers’s October 16, 2007, order of dismissal and to reinstate the Weekley plaintiffs’ claims against the Oak Grove defendants.

The November 27, 2007, order had the effect of reinstating the dismissal of the case as of that date; this, in turn, had the effect of reviving, as of that date, the Weekley plaintiffs’ motion to vacate. See Campbell v. I.L. Lyons & Co., 420 So.2d 66, 67 (Ala.1982) (treating as final for purposes of appeal a June 4, 1981, order that set aside a prior, May 29, 1981, order that, in turn, had set aside an earlier, May 22, 1981, order denying motion to vacate a summary judgment entered on April 10, 1981). Under Rule 4(a)(3), Ala. R.App. P., the time for filing an appeal is suspended during the pendency of a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., such as the motion to vacate filed by the Weekley plaintiffs.

Rule 59.1, Ala. R. Civ. P., provides, however, that “[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record .... ” The 90th day from November 27, 2007, was February 25, 2008. Judge King did not rule on the motion to vacate until February 29, 2008. There is no indication in the record before us of the express consent of the parties to extend the time beyond 90 days. “ ‘The language of Rule 59.1 requires express consent.’ ” Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala.1979) (quoting Personnel Bd. for Mobile County v. Bronstein, 354 So.2d 8, 11 (Ala.Civ.App.1977)). As a result, under Rule 59.1, Ala. R. Civ. P., the Weekley plaintiffs’ motion to vacate was deemed denied by operation of law as of February 25, 2008. Therefore, Judge King was without jurisdiction to enter his February 29, 2008, order purporting to vacate Judge Rogers’s order so as to reinstate the Weekley action, and, accordingly, Judge King’s February 29, 2008, order is void. The Oak Grove defendants’ petition for a writ of mandamus as to the February 29, 2008, order, insofar as it pertains to the Weekley action, therefore is moot.

B. The Waid Action

The Oak Grove defendants contend that the Waid action is due to be dismissed as a collateral attack on the White class action. The Oak Grove defendants observe that the court in the White class action “retainfed] jurisdiction over this action for the purposes of enforcing this Final Judgment Order and for the purposes of exercising its equitable powers supervising [the USM defendants’] commitments in carrying out [the White settlement]” and that the final order enjoined the members of the White class from bringing actions “relating to or arising out of the Settled Claims.” They also note that it is undisputed that all the Waid plaintiffs fall within the definition of the class in the White class action. The Oak Grove defendants therefore conclude that the Waid plaintiffs are attempting to litigate matters that fall within the exclusive jurisdiction of the court in the White class action.

The Oak Grove defendants rely on Ex parte Liberty National Life Insurance Co., 888 So.2d 478 (Ala.2003), in contending that the Waid action represents an improper collateral attack on the White class action. In Liberty National, this Court granted a petition for a writ of mandamus requesting that the Choctaw Circuit Court dismiss a class action by insureds challenging premium increases for cancer policies because all the class members had participated in a previous class action, Adams v. Robertson, 676 So.2d 1265 (Ala.1995), which was filed in the Barbour Circuit Court, involved the same insurance policies, and ended in a settlement. That settlement resulted in a court order by the Barbour Circuit Court stating that it reserved

“ ‘continuing jurisdiction over all matters relating to the Settlement or the consummation of the Settlement; the validity of the Settlement; the construction and enforcement of the Settlement and any orders entered pursuant thereto; ... and all other matters pertaining to the Settlement or its implementation and enforcement.’ ”

888 So.2d at 480 (quoting Robertson, 676 So.2d at 1307).

This Court concluded that the underlying action in Liberty National “involve[d] matters ‘relating to’ the Robertson settlement and its enforcement” because the action concerned the “special policies” that were created in the Robertson settlement as well as future premium increases in those special policies that were governed by the Robertson settlement. 888 So.2d at 480. This Court found:

“This type of collateral attack is not permitted. The boundary lines between courts of concurrent jurisdiction must be preserved. ‘ “ ‘[W]here two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.’ ” ’ Ex parte First Nat’l Bank of Jasper, 717 So.2d 342, 350 (Ala.1997) (quoting Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d 865, 867 (Ala.1993), quoting in turn Ex parte State ex rel. Ussery, 285 Ala. 279, 281, 231 So.2d 314, 315 (1970)).”

888 So.2d at 481. Because the Barbour Circuit Court expressly retained continuing jurisdiction over matters relating to the Robertson settlement, the Court concluded that the Choctaw Circuit Court lacked jurisdiction to hear the underlying action in Liberty National.

Although it is true that the court in the White class action retained exclusive jurisdiction over matters relating to or arising out of the claims settled as a result of the White settlement, the Waid plaintiffs’ claims do not involve those claims. The settled claims are those “arising from or in any way relating in whole or in part to any discharge or release of particulate matter or other airborne emissions during the Applicable Time Period”; the “Applicable Time Period” is the period between January 1, 1990, and the “effective date” of the settlement in December 2002. See supra note 5. The Waid plaintiffs seek damages and injunctive relief for injuries to their properties caused by coal fines and dust emitted from the plant after July 1, 2003, a date after the effective date of the White settlement. Judge King expressly limited the Waid action to damages for injuries sustained after the effective date of the White settlement, precluding injunctive relief because it would conflict with the jurisdiction of the court in the White class action.

Thus, Liberty National does not mandate that the Waid action be dismissed as a collateral attack on the White class action because the claims in the Waid action do not relate to the White class action. To hold otherwise would contradict the nature of settlement agreements, which are “ ‘conclusive only as to those matters which the parties fairly intended to include within its terms, and settlement is effective except as to those elements of the claim specifically reserved.’ ” Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1202 (Ala.2002) (quoting Sho-Me Motor-Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 91 (Ala.1985)).

One of the other cases in the line that this Court has decided concerning claims of a class of holders of cancer-insurance policies sold by Liberty National illustrates that new claims brought after the effective date of a settlement are not necessarily precluded, even when the trial court retains jurisdiction for purposes of overseeing the settlement. In Grimes v. Liberty National Life Insurance Co., 726 So.2d 615 (Ala.1998), one of the members of the Robertson class filed an action in the Jefferson Circuit Court seeking compensatory damages and punitive damages based on allegations of the tort of outrage, fraud, breach of contract, and bad-faith refusal to pay an insurance claim. In response, Liberty National requested that the Barbour Circuit Court issue an order enforcing its injunction in Robertson because Grimes based at least some of her claims on statements or representations alleged to have been made by Liberty National at the time it sold Grimes her cancer policy. The Barbour Circuit Court agreed with Liberty National and issued an order enjoining Grimes from “ ‘asserting in a separate action any claims based upon representations or statements allegedly made to the plaintiff in connection with her decision to purchase her 1986 policy.’ ” Grimes, 726 So.2d at 617.

The Barbour Circuit Court did not, however, preclude all Grimes’s claims. Specifically, the circuit court stated:

“ ‘As to claims of fraud based upon alleged representations made after the entry of the Final Judgment [in Robertson ], which the plaintiff in the underlying action contends were made in 1995 and 1996, such claims are not barred by the existing injunction. Likewise, claims for breach of contract based upon the written policy and claims for bad faith failure to pay claims under the policy as written are not barred by the existing injunction. As noted above, however, any claim for breach of contract or bad faith based upon an alleged oral contract or representation arising prior to the entry of the Final Judgment is barred by the existing injunction.’”

888 So.2d at 617 (bracketed language in Grimes). In other words, the Barbour Circuit Court did not enjoin Grimes from maintaining claims in her separate action that arose after the entry of the final judgment in Robertson. This Court upheld the Barbour Circuit Court’s authority to issue the injunction, noting that the Barbour Circuit Court “was acting well within its power in enforcing its permanent injunction so as to prevent Ms. Grimes from relitigating in another forum any claims against Liberty National that she, as a member of the Robertson class, had released in 1994.” 888 So.2d at 618. Thus, this Court agreed with the Barbour Circuit Court that Grimes had not released claims that arose after the final judgment in Robertson, even though the Barbour Circuit Court retained jurisdiction over the Robertson settlement.

Similarly, although the Waid plaintiffs are precluded from pursuing claims that, as members of the White class, they released in the White settlement, Judge King correctly permitted them to pursue claims that fall outside the terms of the release. “When the language of a release specifically limits the scope of the release, the release will not bar claims outside the scope of the release.” Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999). The Waid plaintiffs’ damages claims do not fall -within the continuing jurisdiction reserved to the court in the White class action under the White settlement because that settlement concerns claims that arose within the “Applicable Time Period,” i.e., January 1, 1990, to the effective date in December 2002, while the Waid plaintiffs’ damages claims specifically concern alleged injuries suffered after July 1, 2003.

Based on the foregoing, the Oak Grove defendants do not have a clear legal right to a dismissal of the Waid action; accordingly, their petition for a writ of mandamus regarding the Waid action is due to be denied.

IV. Conclusion

Because the trial court no longer had jurisdiction over the Weekley action, its order purporting to vacate the dismissals of the various claims in the Weekley action as ordered by Judge Rogers is void and those dismissals remain in effect. Therefore, the Oak Grove defendants’ petition for a writ of mandamus concerning the Weekley action is moot and is dismissed as such. Because the claims in the Waid action do not fall within the reserved jurisdiction of the court in the White class action, the Oak Grove defendants do not have a right to a dismissal of the Waid action on that basis, and the Oak Grove defendants’ petition for a writ of mandamus concerning the Waid action therefore is denied.

PETITIONERS’ MOTION TO SUPPLEMENT GRANTED; PETITION DISMISSED IN PART AND DENIED IN PART.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

      .The affiliated business entities include Pinn-Oak Resources, LLC; PinnOak Coal Sales, LLC; Questor Management Co., LLC; and National Resources Partners, LP.

      . In their submissions, the parties sometimes refer to this as the Smith action.

      . In their submissions, the parties sometimes refer to this as the Bowden action.

      . The “Applicable Time Period” is defined in the White settlement as the period between January 1, 1990, and the "Effective Date” of the White settlement.

      . There is reference in the briefs of an "effective date” of December 22, 2002; that date is also stipulated in the record as the "effective date.” The discrepancy between that date and December 14, 2002, is of no significance to the disposition of this petition.

      . On February 6, 2009, the Oak Grove defendants filed a motion to supplement their mandamus petition to include an order filed on December 11, 2008, by Judge Parsons in the White class action purporting to exercise the court's exclusive jurisdiction to "suggest ... additional remedial measures.” The order approved a "supplement” to the White settlement that "provides for [air] monitoring to determine whether there exists an excessive migration of particulate matter onto the property of the [White class] that is attributable to [the Oak Grove defendants].”
      In their motion, the Oak Grove defendants contend that the December 11, 2008, order further demonstrates that the Waid action and the Weekley action represent collateral attacks upon claims that are within the province of the White settlement. On April’ 7, 2009, the Waid plaintiffs and the Weekley plaintiffs filed a motion to strike the Oak Grove defendants’ motion to supplement the record, their most persuasive argument being that Judge Parsons's order was not before Judge King when he reinstated the Waid action and the Weekley action as to post-effective-date damages claims.
      “Of course, there is no ‘record on appeal’ in a mandamus proceeding; it [is the petitioner’s] obligation to attach to [the] petition ‘copies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the petition.' ” Ex parte Trawick, 959 So.2d 51, 62-63 (Ala.2006) (opinion on rehearing) (quoting Rule 21(a)(1)(E), Ala. R.App. P.). Consequently, the requirements for supplementing the record on an appeal do not apply in a mandamus proceeding. We therefore grant the Oak Grove defendants' motion. But see infra note 7.

      . On March 25, 2009, Judge King filed an amendment to his March 5, 2008, order, which appears to be a response to Judge Parsons's December 11, 2008, order in the White class action. In substance, the amended order simply restates Judge King's conclusion that the White class action "subsumed all claims of any individuals ... up to the time of the ‘Effective Date' set forth in the Final Judgment Order of that action.” Judge King reiterated his belief that he "retain[ed] personal and subject matter jurisdiction to preside over and hear all post-Effective Date damages claims raised by plaintiffs in [the Waid action and the Weekley action].”
      The Oak Grove defendants contend that we should ignore Judge King's March 25, 2009, order because this Court issued a stay of the proceedings when it ordered answers and briefs on the Oak Grove defendants' petition for mandamus. We agree, and we have not considered that order in reaching our decision, although we note that it appears only to have restated Judge King's previous ruling.

      . Rule 4(a)(3), Ala. R.App. P., provides:
      "If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time Tor filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”
      Thus, the Weekley plaintiffs had 42 days from February 25, 2008, to file an appeal of Judge Rogers’s order dismissing their case. No such appeal was filed.

      . The White court's December 11, 2008, order concerning further remedial action in the White class action, far from refuting this fact, as the Oak Grove defendants contend, actually confirmed it by stating again that that court “retainLed] exclusive jurisdiction over this case," that its order "enforcefd] the Final Judgment Order and exercisefd] its equitable powers in supervising the [White settlement],” and that if the "supplement” to the White settlement is successfully implemented, “the [White ] Class will dismiss [the Oak Grove defendants] from this lawsuit, and become permanently enjoined from prosecuting any claims that were or could have been asserted in this lawsuit ....” (Emphasis added.) Thus, the latest order from the court in the White class action confines itself, as it must, to the settled claims.

      . This Court has released at least five opinions pertaining to claims against Liberty National brought by holders of cancer-insurance policies: Solomon v. Liberty Nat’l Life Ins. Co., 953 So.2d 1211 (Ala.2006); Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478 (Ala.2003); Grimes v. Liberty Nat’l Life Ins. Co., 726 So.2d 615 (Ala.1998); Adams v. Robertson, 676 So.2d 1265 (Ala.1995); and Ex parte Liberty Nat’l Life Ins. Co., 631 So.2d 865 (Ala.1993).


source: Caselaw Access Project

author: MURDOCK, Justice. COBB, Chief Justice

license: Public Domain

text:
    Ex parte Laura Kay CARLISLE. (In re Laura Kay Carlisle v. Thomas G. Moore and Atmore Animal Hospital, LLC).
    1080038.
    Supreme Court of Alabama.
    June 30, 2009.

      Mark D. Ryan and Alexandra K. Garrett of Mark D. Ryan, P.C., Bay Minette, for petitioner.
    Edward G. Bowron, Kristin T. Ash-worth, and C. Clifton Mosteller of Burr & Forman, LLP, Mobile, for respondents.
   MURDOCK, Justice.

The petition in the present case concerns a discovery dispute in a tort action alleging sexual misconduct by a supervisor. Laura Kay Carlisle petitions this Court for a writ of mandamus directing the Escam-bia Circuit Court to issue a protective order pursuant to Rule 26(c), Ala. R. Civ. P., prohibiting discovery of evidence regarding Carlisle’s past sexual conduct unless the conduct directly involved Thomas G. Moore, who was Carlisle’s supervisor, or occurred while Carlisle was on duty at the veterinary clinic operated by Atmore Animal Hospital, LLC (“the clinic”), where Moore and Carlisle worked. We deny the petition.

I. Facts and Procedural History

Carlisle worked for the clinic from 2000 to 2005. During her employment, Moore, a veterinarian and a managing member of the clinic, was Carlisle’s supervisor and in that capacity had daily frequent interactions with Carlisle. In September 2006, after she ceased working for the clinic, Carlisle sued Moore and the clinic; she alleged claims of assault and battery, invasion of privacy, the tort of outrage, and negligent supervision and/or retention. Carlisle alleged that Moore had inappropriately touched her, that he had directed sexually suggestive and offensive remarks and gestures toward her, that he had openly displayed his genitalia to her, and that he had made inappropriate sexual references in her presence during her employment with the clinic. Car-lisle further alleged that, as a result of Moore’s actions, she suffered mental anguish, emotional distress, shame, humiliation, embarrassment, and lost wages. Moore answered the complaint, denying all Carlisle’s allegations and contending that any sexual contact between him and Car-lisle was consensual.

On September 27, 2007, Moore’s counsel, Edward Bowron, deposed Carlisle in the presence of her counsel, Mark Ryan; Moore also was present. At a certain point in the deposition, Bowron began to ask Carlisle questions about her sexual history. As it pertains to this petition, the exchange began with a series of questions consisting of whether Carlisle had had consensual sexual intercourse with Moore; whether she had done so on one occasion outside the workplace; and whether she had done so on two occasions in Moore’s office. Carlisle responded in the negative to each question. Bowron then began what apparently was to be a series of questions regarding Carlisle’s sexual history generally.

At that point, the parties agreed to adjourn the deposition in order to allow Car-lisle to file for a protective order to prevent Moore from asking her questions about her sexual history. Carlisle then filed a motion for a protective order pursuant to Rule 26(c), Ala. R. Civ. P., seeking a prohibition on any questions concerning Carlisle’s sexual predisposition or past sexual conduct unless such conduct either involved Moore or occurred while Carlisle was on duty at the clinic’s facility. Moore filed a brief in response to the motion in which he argued that Carlisle’s answers to such questions could lead to admissible evidence.

The trial court held a hearing on the motion, and on August 27, 2008, the trial court denied the motion, stating, in pertinent part:

“Based upon the briefs and arguments presented, [Carlisle’s motion for a protective order] is, hereby, Denied.
“It is further ordered that this order denying the motion for protective order in no way addresses the admissibility of any evidence and/or testimony obtained by the questions that are being allowed to be asked.”

Carlisle now petitions this Court for a writ of mandamus, asking this Court to direct the trial court to vacate its order denying her motion for a protective order and, specifically, to enter an order prohibiting all discovery of Carlisle’s sexual history “unless such conduct either involves [Moore] or occurred while [Carlisle] was employed at Atmore Animal Hospital.”

II. Analysis

Rule 26(b)(1), Ala. R. Civ. P., provides, in pertinent part:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action .... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Rule 26(c), Ala. R. Civ. P., provides, in pertinent part:

“Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition or production or inspection, the court in the circuit where the deposition or production or inspection is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

Regarding the interaction between these two subsections of Rule 26, Ala. R. Civ. P., this Court has observed:

“ ‘It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed. Rule 26(e) [Alabama Rules of Civil Procedure] recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. ... The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery.’ ”

Ex parte First Nat’l Bank of Pulaski, 730 So.2d 1160, 1162 (Ala.1999) (quoting Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912, 914 (Ala.1991)).

Similarly, with respect to the use of a mandamus petition to obtain appellate review of a discovery matter, this Court has stated:

“The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful.”

Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 102 (Ala.1981).

In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala.2003), this Court began its analysis of the discovery dispute at issue by explaining as follows:

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). This Court will not issue the writ of mandamus where the petitioner has ‘ “full and adequate relief’ ’ by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).”

872 So.2d at 813. The Ocwen Court then noted the discretion that resides in a trial court with regard to discovery matters and, echoing the first three elements articulated in Ex parte Alfab, Inc., 586 So.2d 889 (Ala.1991), stated the following two-part standard for reversing a trial court’s discovery ruling in response to a mandamus petition:

“(1) [whether] there is a showing that the trial court clearly exceeded its discretion, and (2) [whether] the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.”

872 So.2d at 813.

Having stated this two-part standard, the Ocwen Court next explained that, aside from “exceptional cases,” appellate review of a discovery order by mandamus generally will not be available:

“In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, (a) when a privilege is disregarded ...; (b) when a discovery order compels the production of patently irrelevant or duplica-tive documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party ...; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error.”

872 So.2d at 813-14 (emphasis added).

As indicated, Ocwen referred to these four “exceptional cases” as “examplefs]” of the types of cases in which mandamus relief may be available to review a discovery order. In Ex parte Crawford, Broadcasting Co., 904 So.2d 221, 224 (Ala.2004), this Court specifically explained that the four exceptional cases identified in Ocwen were “[t]he four most common examples” of cases in which review by appeal of a discovery order may not be adequate and that “the list is not exhaustive.” See also Ex parte St. Vincent’s Hosp., 991 So.2d 200, 207 (Ala.2008) (to the same effect).

The nonexhaustive nature of the list of “exceptional cases” identified in Ocwen means that the faitee of a discovery request to fall within the parameters of an established privilege as contemplated by exceptional case (a) or to entail the production of documents of the nature contemplated by exceptional case (b) does not necessarily place that request beyond our consideration in a mandamus proceeding, provided, of course, that it otherwise meets the two-part test articulated in Ocwen. Indeed, with respect to exceptional case (a), this Court has already recognized that “a discovery order [that] compels the production of information [may] implicate[ ] privacy considerations analogous to an evidentiary privilege.” Ex parte St. Vincent’s Hosp., 991 So.2d at 207.

Carlisle does not argue that this case falls within one of the Ocwen “exceptional cases” or that one or more of those categories (e.g., exceptional case (a) or (b)) should be expanded to address deposition testimony of the nature at issue here. What she does argue, however — consistent with the two-part standard articulated in Ocwen for reversal of a trial court’s ruling on a discovery issue — is 1) that the trial court clearly exceeded its discretion and 2) that she has no adequate remedy by ordinary appeal. The principle of stare decisis and this Court’s reluctance to consider abandoning precedent in the absence of an adequate argument to us that we should do so do not prevent us from considering Carlisle’s position in this regard since, as noted, the list of four “exceptional cases” in Ocwen is not exhaustive.

Nonetheless, Carlisle has failed to satisfy the two-part standard articulated in Ociven. Specifically, Carlisle has not been able to demonstrate that the trial court “clearly exceeded its discretion” in allowing Moore’s counsel to pursue the line of questioning in her deposition regarding her sexual history. Even if we were inclined, for example, to apply the criteria of Ocwen’s exceptional case (b) in an appropriate circumstance to deposition testimony, it is not as if the line of questioning sought to be pursued here is being pursued in, for instance, an automobile-accident case. This is a sexual-harassment case. Moore states that he intends to show that his conduct vis-a-vis Carlisle, although it occurred in the workplace, was consensual. Carlisle contends that Moore caused her great emotional distress, mental anguish, shame, and embarrassment. Moore responds by arguing that Carlisle’s sexual history is relevant to the level of offense she felt from the acts she alleges Moore committed and to an evaluation of the extent to which Carlisle might have been harmed by his alleged conduct. Under such circumstances, and given the juncture at which this case is presented to us, we cannot say that the matters into which defense counsel has sought to inquire are “patently irrelevant.”

Nor can we say, at the juncture at which we find ourselves in the present case, that the privacy implications relating to the discovery of Carlisle’s past sexual history would serve to exempt all that history (other than her experience with Moore or in the clinic’s facility itself) from discovery in a manner analogous to exceptional case (a) identified in Ocwen. See Ex parte St. Vincent’s Hosp., 991 So.2d at 207. It remains to be seen whether and to what extent that history will have a material bearing on the merits of the claims and issues Carlisle herself raises.

If this were an action in which claims of a different kind were asserted, there might be less of a question that information about the plaintiffs past in the subject area of the claims asserted would be relevant for discovery purposes. For example, when a party files an action that places his or her physical condition in issue, this Court has consistently held that the plaintiff “waives his privacy rights in favor of the public’s interest in full disclosure.” Ex parte Dumas, 778 So.2d 798, 801 (Ala.2000). In such a case, therefore, although a defendant seeks medical information about the plaintiff that is seemingly unrelated to the claimed injuries, discovery of that information may be permitted. See id. We find a noteworthy parallel between those cases involving physical injuries and the present case.

We are not unmindful of the very personal nature of the information sought from Carlisle regarding her past conduct. Nor do we intend to suggest that a plaintiff with a promiscuous past could not feel the same shame and humiliation as someone without such a past if involuntarily subjected to sexual harassment in the workplace by someone in a position of authority. The fact remains, however, that, in an appropriate case, the relationship between a plaintiffs past sexual conduct and the question whether the defendant’s conduct was consensual and the extent to which the plaintiff was injured thereby will be questions for the jury. Moore should not be prevented from presenting his theory of the case by a blanket assertion that Carlisle’s past conduct could not have any bearing on the issues raised in this case.

Again, although the information being requested in discovery ultimately may be determined to be irrelevant and inadmissible, we cannot conclude at this juncture, and from the materials before us, that it is patently irrelevant. While Carlisle may have strenuous objections to the admissibility at trial of the information sought by Moore, for purposes of discovery it cannot be determined from the materials before us in this case that there is no reasonable likelihood any of the information will aid Moore in his defense.

Carlisle argues that at some point the type of information Moore seeks is too remote to be useful and that the danger of prejudice outweighs the probative value of the information. Although we may assume this view to be correct, Carlisle has not yet demonstrated what that point would be for purposes of the present case. Other than making the proposal to limit the deposition inquiries to her experiences either with Moore or in the clime’s facility, she does not provide any argument to this Court as to the point in time or other context as to which the information sought should be deemed too remote. Instead, Carlisle merely seeks at this juncture an order that essentially would deny Moore and the trial court the opportunity to evaluate whether any of her sexual history other than with Moore and at the clinic’s facility has sufficient probative value to be admissible or might lead to evidence that has such value.

On the basis of the foregoing, we deny Carlisle’s petition for a writ of mandamus. We cannot say, given the information available to the trial court when it ruled in this case, that it exceeded its discretion in denying the particular protective order requested in the trial court and in the petition now before this Court. Nothing in this opinion should be construed as preventing the trial court from addressing, as circumstances may warrant, any attempt by Moore to overreach in his questioning of Carlisle or to address a motion for protective order based on some showing materially different from what is now before us.

PETITION DENIED.

LYONS, WOODALL, BOLIN, PARKER, and SHAW, JJ., concur.

SMITH, J., concurs in the result.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I disagree with this Court’s holding that the trial court acted within its discretion in refusing to enter the protective order Laura Kay Carlisle sought. Therefore, I respectfully dissent.

Rule 26(b)(1), Ala. R. Civ. P., permits the discovery of any matter that, although not itself relevant, “appears reasonably calculated to lead to the discovery of admissible evidence.” During the deposition, the attorney for Thomas G. Moore, the defendant below, questioned Carlisle, the plaintiff, as to when she lost her virginity and about sexual relations she might have had many years before the incident which is the subject of this litigation. Such questioning has no bearing on sexual-harassment claims brought decades later. The discovery sought relating to Carlisle’s sexual history appears to have no other purpose than to embarrass and intimidate Carlisle. Thus, the trial court should have issued the protective order.

I note that Rule 412, Ala. R. Evid., the Alabama evidentiary rule concerning the admissibility of evidence of a complainant’s past sexual conduct, applies only to criminal prosecutions. The Advisory Committee’s Notes to Rule 412 state that the Advisory Committee chose to adopt Alabama’s existing “rape shield” statute as the evidentiary rule in Alabama concerning a complainant’s past sexual conduct, and that statute has no application in civil matters. The federal counterpart, Rule 412, Fed.R.Evid., provides, in pertinent part:

“(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
“(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
“(2) Evidence offered to prove any alleged victim’s sexual predisposition.
“(b) Exceptions.
“(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair' prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
“(c) Procedure to determine admissibility.
“(1) A party intending to offer evidence under subdivision (b) must—
“(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause, requires a different time for filing or permits filing during trial; and
“(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
“(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.”

(Emphasis added.) This case exemplifies the need to address in the Alabama Rules of Evidence the admissibility of prior sexual conduct in both criminal and civil matters. The federal rule strikes an appropriate balance between the competing concerns of those who claim to be victims of sexual harassment, who need assurance that they will not be embarrassed by probing discovery into their sexual past, on the one hand, and defendants, who need discovery of relevant evidence, on the other. Accordingly, I urge this Court’s standing committee on the rules of evidence to consider amending Rule 412, Ala. R. Evid., to address these concerns in civil cases.

Because the evidence sought by Moore is not calculated to lead to the discovery of relevant evidence but instead serves only to embarrass and harass Carlisle, the trial court exceeded its discretion in not granting Carlisle’s motion for a protective order. I therefore dissent.

      . "It is well settled that Alabama does not recognize an independent cause of action for sexual harassment. Instead, claims of sexual harassment are maintained under common-law tort theories such as assault and battery, invasion of privacy, negligent training and supervision, and outrage.” Machen v. Childersburg Bancorporation, Inc., 761 So.2d 981, 983 n. 1 (Ala.1999).

      . "Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.” Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 926 (Ala.2002).

      . Compare, e.g., Ex parte Crawford Broad. Co., supra, a case in which the plaintiffs sought the production of one year’s worth of payroll records for two radio talk-show hosts, the defendants in a defamation case. The defendants’ motion for a protective order was denied, and their employer filed a petition for a writ of mandamus in this Court, arguing that mandamus was proper under exceptional cases (a) and (b). Pretermitting consideration of exceptional case (a), this Court considered the mandamus petition under exceptional case (b) and concluded that the records sought were "patently irrelevant” to the defamation action and that compelling the single year’s worth of payroll records would "clearly constitute harassment” of the defendants. 904 So.2d at 226.

      . For example, Carlisle’s past sexual behavior may include consensual sexual behavior in other workplaces where Carlisle was employed or some analogous context that creates an issue as to the credibility of her claims. Likewise, it is conceivable that Carlisle's past sexual behavior might have made her unlikely to be ashamed, embarrassed, or distressed as a result of some of Moore's alleged behavior. Cf., e.g., Williams v. District Court, 866 P.2d 908, 911-12 (Colo.1993) (“Williams is seeking compensatory damages in excess of $1,000,000 and has alleged loss of reputation as one of his injuries. While damages are presumed, and need not be proven, in cases involving defamation per se, the jury must still consider any actual impairment to the plaintiff's reputation in determining the amount of damages. Moreover, a defendant in a defamation action may present any evidence which tends to mitigate damages.” (citations and footnote omitted)).

      . The trial court's order makes it clear that it will review Carlisle’s arguments concerning the admissibility of her past sexual history following discovery at the appropriate time; we also have no reason to doubt that the trial court will enter a protective order during discovery if the circumstances warrant.

      . Carlisle did not make an in camera proffer regarding the information sought by Moore in the deposition. We also note that we are not presented in this case with an issue as to whether the trial court should have issued a protective order to prevent disclosure or dissemination of information learned in the deposition until the trial court had the opportunity to make a further assessment of the admissibility of such information.


author: THOMAS, Judge.

text:
    Rosemary Posey BROWN v. James Earl BROWN James Earl Brown v. Rosemary Posey Brown.
    2050748.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      David A. Simon of Wills & Simon, Bay Minette, for appellant/cross-appellee Rosemary Posey Brown.
    W. Donald Bolton, Jr., Foley; and Oliver J. Latour, Jr., Foley, for appellee/cross-appellant James Earl Brown.
   THOMAS, Judge.

Rosemary Posey Brown (“the wife”) and James Earl Brown (“the husband”) were married on August 10, 1996. Two days before the parties’ marriage, the husband executed an antenuptial agreement; he presented the agreement to the wife the following day. The wife executed the agreement on August 9, 1996, and the parties married the following day. In September 2003, the parties separated; the husband filed for divorce in December, alleging that the parties were no longer compatible. The husband attached the parties’ antenuptial agreement to his divorce complaint.

After several continuances, the trial court heard the testimony of the husband and the wife on October 26, 2005. The trial court then entered a judgment declaring the antenuptial agreement valid, dividing the parties’ property, and awarding the wife alimony. After the trial court considered the husband’s timely postjudgment motion, the trial court amended its judgment in part to deny the wife alimony because she had waived all right to alimony in the antenuptial agreement. The wife appealed the divorce judgment, arguing that the trial court had erred when it found the antenuptial agreement to be enforceable and denied her claim for alimony; the husband filed a timely cross-appeal, arguing that the trial court had not enforced the antenuptial agreement appropriately because it had awarded the wife the time-share in Orlando, Florida, owned by the husband before the marriage and because it had awarded the wife $60,000 representing her interest in the husband’s Wachovia account, which was his separate property under the agreement. The husband also argues that the trial court erred by awarding the wife a far larger share than him of the parties’ marital property and by not recognizing the husband’s claim that the wife had converted certain funds when she forged the husband’s name to a mortgage-satisfaction document and withdrew the proceeds from that mortgage payoff from the parties’ joint bank account.

The Wife’s Appeal

The wife argues that the trial court erred by enforcing the antenuptial agreement she signed the day before the wedding. She specifically argues that she did not read the agreement before she signed it, that she did not secure independent legal advice before signing the agreement, that the atmosphere at the time she signed the agreement was coercive, and that the husband did not fully disclose the value of his assets in his schedule of assets appended to the agreement. Thus, the wife argues that the antenuptial agreement is unenforceable under Alabama law.

“As a general rule, antenuptial agreements are valid and enforceable under Alabama law. Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.), cert. denied, 386 So.2d 752 (Ala.1980). However, ‘[b]ecause of the confidential relationship of the two parties, such contracts are scrutinized by the courts to determine their justice and fairness.’ Allison v. Stevens, 269 Ala. 288, 291, 112 So.2d 451, 453 (1959). Antenuptial agreements must satisfy one of two tests to be considered valid. Allison, 269 Ala. at 291, 112 So.2d at 453; Barnhill, 386 So.2d at 751.
“A party seeking to enforce an ante-nuptial agreement must prove either:
“ ‘that the consideration was adequate and that the entire transaction was fair, just and equitable from the other party’s point of view or that the agreement was freely and voluntarily entered into by the [other party] with competent independent advice and full knowledge of [that party’s] interest in the estate and its approximate value.’
“Barnhill, 386 So.2d at 751 (citing Allison, 269 Ala. at 291, 112 So.2d at 453) (emphasis added). As applied by this court in the cases since Barnhill, the elements of the second test are considered as proof of the overall fairness required by test one. See Barnhill, [386 So.2d at] 752; Woolwine v. Woolwine, 519 So.2d 1347, 1350 (Ala.Civ.App.1987). However, this court has required only that the party against whom the agreement is being enforced have a general knowledge, not a full knowledge, of the other’s estate. See Barnhill, 386 So.2d at 752; Woolwine, 519 So.2d at 1350.”

Lemaster v. Dutton, 694 So.2d 1360, 1362-63 (Ala.Civ.App.1996).

“In a case in which the evidence is presented to the trial court ore tenus, such as this one, the findings of the trial court are presumed correct and will not be set aside unless they are plainly and palpably wrong or unjust.” Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). “Furthermore, where the trial court does not make findings of fact, it will be assumed that the trial court made those findings that were necessary to support its judgment, unless the findings would be clearly erroneous.” Ex parte Walters, 580 So.2d 1352, 1854 (Ala.1991).

The wife is a 54-year-old former real-estate agent. She worked as a real-estate agent in the Orange Beach-Gulf Shores area for several years. She resigned from her position shortly before the marriage at the husband’s request; he had indicated that he wanted her to stay home and that he had sufficient income to support them without her income.

The wife does not and cannot dispute that consideration existed to support the antenuptial agreement. Marriage itself can be sufficient consideration for an antenuptial agreement, Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980); in addition, the parties’ mutual relinquishment of rights in each other’s estate can serve as consideration. Tibbs, 580 So.2d at 1339. Thus, we now turn to whether “the entire transaction was fair, just and equitable from [the wife’s] point of view.” Lemaster, 694 So.2d at 1363.

The wife complains that the transaction was not fair and equitable. She makes much of the facts that she did not read the agreement and that she did not secure independent legal advice before signing the agreement, which have both been held to be indicia of the fairness of an antenup-tial agreement. See Woolwine v. Woolwine, 519 So.2d 1347, 1350 (Ala.Civ.App.1987). She also complains that the husband did not disclose the value of his estate in the schedule of assets appended to the antenuptial agreement and that the husband’s giving her the antenuptial agreement on the day before the wedding created a coercive atmosphere in which she felt compelled to sign the agreement.

The fact that the wife contends that she did not read the agreement is, in our opinion, of no consequence here. She had the ability to do so, was not prevented from doing so, and chose not to do so despite the fact that she signed the document. As a real-estate agent, the wife was familiar with the import of signing a legal document. Alabama law provides that

“in the absence of fraud or misrepresentation, a party is bound by the terms of a contract, even if he fails to read it. The law is equally clear that ordinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby.”

Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991) (internal citations omitted); accord Wilcoxen v. Wilcoxen, 907 So.2d 447, 450 (Ala.Civ.App.2005); and Allen v. Allen, 903 So.2d 835, 841 (Ala.Civ.App.2004). Thus, the wife cannot now attempt to void the agreement on the basis of her choice not to rend that agreement.

The wife further complains that she was not awai’e of the extent of the husband’s estate and, therefore, that the antenuptial agreement is not fair, just, and equitable. However, Alabama law does not require that the parties know the exact value of each other’s estate in order to execute a binding antenuptial agreement. Lemaster, 694 So.2d at 1363. A general knowledge of the extent of the other party’s estate is all that is necessary. Id. The wife states in her brief that “[i]t was quite clear that the husband was a millionaire.” Based on the wife’s own testimony, the wife knew before the marriage that the husband had extensive property holdings and that he was financially secure enough to insist that she not work because his income was more than enough to provide for them. We therefore cannot agree that the failure of the husband to list the values of the property he owned or his net worth on the schedule of assets appended to the antenuptial agreement prevents its enforcement; the record evidence supports a conclusion that the wife was aware of the general extent of the husband’s assets at the time of the execution of the antenuptial agreement.

The wife’s failure to secure independent legal advice in the present case, while certainly regrettable, is not alone sufficient to void the agreement. See Strait v. Strait, 686 So.2d 1230, 1234 (Ala.Civ.App.1996). The wife testified that she telephoned her attorney on the day she executed the ante-nuptial agreement; according to the wife, she was told that the attorney was unavailable. The wife stated that she called the attorney several times that day, up until approximately 4:30 p.m., when she said she had to sign the agreement in order to get it returned to the husband’s attorney. In Strait, the wife testified in her deposition that she had not had time to seek legal advice regarding the antenuptial agreement she had signed, and this court affirmed a summary judgment determining that the antenuptial agreement was valid, stating: “This court has held that when a spouse has at least a general knowledge of what he or she is relinquishing and a general knowledge of the extent of the other spouse’s estate, an antenuptial agreement based on adequate consideration is fair, just, and equitable.” Strait, 686 So.2d at 1234. We conclude, therefore, that the failure to obtain independent legal advice, alone, is not fatal to the validity of the antenuptial agreement in the present case.

The wife also argues that the husband’s presenting her with the antenuptial agreement on the day before the wedding, when the preparations for the wedding had already been made and out-of-town guests had already arrived, and at a time when obtaining legal advice was hampered by time constraints, created a coercive atmosphere in which she felt compelled to sign the agreement. In support of her argument, the wife relies on Ex parte Williams, 617 So.2d 1032, 1035 (Ala.1992); Roberts v. Roberts, 802 So.2d 230, 234 (Ala.Civ.App.2001); and Mixon v. Mixon, 550 So.2d 999, 1000 (Ala.Civ.App.1989). Although the wife is correct that in Ex parte Williams the supreme court reversed a summary judgment holding an antenuptial agreement valid because questions of fact existed regarding whether an expectant mother’s choice between signing an antenuptial agreement as a condition to marriage to legitimize her unborn child and being left to bear the stigma of unwed pregnancy because of her moral objection to abortion created a coercive atmosphere in which she had no choice but to sign the antenuptial agreement, Ex parte Williams, 617 So.2d at 1035, we cannot agree that the holding in Ex parte Williams is of benefit to the wife in the present case. First, the reversal of the summary judgment in Ex parte Williams was based on the fact that there existed genuine issues of material fact regarding whether a coercive atmosphere existed. Id. In the present case, the trial court, in its role as fact-finder, see Ex parte Walters, 580 So.2d at 1354 (indicating that the conflicting evidence presented to the trial court would support a conclusion that the antenuptial agreement was valid), must have determined that the atmosphere surrounding the execution of the antenuptial agreement in the present case was not so coercive as to warrant finding that the antenuptial agreement was unenforceable.

Similarly, we are not convinced by the wife’s argument that Mixon compels a reversal of the trial court’s judgment enforcing the antenuptial agreement. In Mixon this court affirmed a trial court’s judgment divorcing the Mixons and dividing their property because the antenuptial agreement between the parties was determined to be invalid. Mixon, 550 So.2d at 1000. The facts in Mixon indicated that the wife had refused to sign the agreement when it was presented to her on the eve of the wedding and that she had been unable to secure independent legal advice due to the timing of the presentment of the agreement; however, the wife executed the agreement the following day with the express condition that it be rewritten, which condition was written on the agreement and either signed or initialed by each party. Id. Thus, this court affirmed the trial court’s decision not to enforce the agreement, stating that “[w]e are not convinced that the transaction was fair and just from the wife’s point of view, nor is there any evidence that the wife freely and voluntarily entered into the agreement with independent legal advice.” Id. However, a more simple basis supporting the determination that the antenuptial agreement was invalid is the obvious conclusion that the wife in Mixon, by virtue of her express requirement that the agreement be rewritten, did not enter into the antenuptial agreement that was presented to her. The lack of independent legal advice, then, was simply an additional fact that motivated the wife to protect her interests by demanding that the agreement be rewritten. Thus, we do not find the wife’s reliance on Mixon convincing.

Finally, we must consider the holding in Roberts, in which this court affirmed a trial court’s determination that an ante-nuptial agreement presented by the husband was invalid. The parties had originally planned to marry in March 1994. Roberts, 802 So.2d at 234. In February 1994, the husband presented the wife with an antenuptial agreement. Id. at 233-34. According to the husband, he recommended that the wife seek independent legal advice regarding the agreement. Id. at 234. The wife, however, testified that she did not seek any legal advice because she did not agree to the terms of the agreement. Id. The parties did not marry in March; they rescheduled their wedding for August 1994. Id. The husband testified that a few days before the wedding he gave the wife a document entitled “Preliminary Agreement.” Id. The wife recalled receiving the Preliminary Agreement on the day before the wedding. Id. The Preliminary Agreement required the parties to execute the original antenuptial agreement within 30 days of the marriage and provided that, if the original antenuptial agreement were not so executed, the original antenuptial agreement “ ‘shall be construed as fully executed in full force, and legally enforceable.’ ” Id. The wife testified that she “did not read or understand the provisions of the Preliminary Agreement.” Id. Because the trial court did not make specific findings of fact regarding the basis for its determination that the antenuptial agreement was invalid, the Roberts court assumed that the trial court must have determined that the wife’s failure to obtain independent legal advice and the wife’s feeling compelled to sign the agreement because it was presented to her on the day before the wedding led the trial court to conclude that the wife did not freely and voluntarily sign the antenuptial agreement. Id. The Roberts court relied on Mixon to support its determination that such a finding would support a judgment declaring the antenuptial agreement invalid. Id. Although not expressly mentioned, the Roberts court also relied on the ore tenus standard to uphold the trial court’s determination that the Preliminary Agreement, and therefore the antenuptial agreement, was invalid.

We are likewise bound by the ore tenus presumption in the present case. Tibbs, 580 So.2d at 1339. And we must also presume that the trial court made those findings necessary to support its judgment. Ex parte Walters, 580 So.2d at 1354. In light of those precepts, we fail to see how the wife in the present case can succeed in arguing that the trial court was required to find that the antenuptial agreement, which she did not read, was somehow forced upon her or that she was coerced into signing it. The wife was a real-estate agent who undoubtedly had experience dealing with legal contracts. She decided not to read the antenuptial agreement because, as she put it at trial: “It doesn’t matter. He told me I had to sign it and I signed it.” She attempted to obtain legal advice from her attorney, and, despite the fact that she was informed of his unavailability, she did not seek other counsel but continued to telephone his office during the day. The trial court could have determined that the wife was aware of the import of the antenuptial agreement and that her decision to sign it without reading it negated any need for her to seek independent legal advice regarding the agreement. Because the record would support such a determination, we will not disturb the trial court’s conclusion that the antenuptial agreement is valid on the basis of Ex parte Williams, Mixon, or Roberts.

The wife’s second argument on appeal, that the trial court erred by not awarding her alimony, is pretermitted in light of our decision upholding the determination that the antenuptial agreement was valid. Likewise, we decline to award the wife an attorney fee in light of our resolution of her appeal.

The Husband’s Cross-Appeal

The husband argues that the trial court erred in allowing the wife to choose between two time-shares owned by the husband when one, the Orlando timeshare, was owned by the husband before the marriage and was listed in his schedule of assets and that the trial court erred in awarding the wife $60,000 as alimony-in-gross representing the wife’s alleged share of his Wachovia account, which the husband maintains is his separate property under the antenuptial agreement. The husband further argues that the trial court erred in awarding the wife the bulk of the parties’ jointly owned property because, he asserts, in doing so, the trial court must have improperly considered the husband’s separate estate. Finally, he argues that the trial court erred in rejecting his claim to mortgage proceeds he argues were wrongfully converted by the wife after she allegedly forged his name to a mortgage-satisfaction document.

The testimony at trial revealed that the husband had admitted to committing one act of adultery with a woman named G.D. in the summer of 2002. Although he denied having continued a sexual relationship during the period between the summer of 2002 and the parties’ separation, he did resume a sexual relationship with G.D. after the parties’ separation. The wife testified that she had suspected that the husband had engaged in other extramarital relationships, citing frequent and some late-night telephone calls as evidence. In addition, the wife complained that the husband’s attitude during the marriage had caused friction; she commented that he was very controlling and expected things to be done his way. The husband, likewise, made allegations of infidelity against the wife. His allegations, however, were not supported by any evidence.

The wife complained that the husband had placed the proceeds of certain real-estate transactions in 2000 involving jointly held property in his “business” account, thereby keeping those proceeds from the wife. In addition, the husband complained that the wife had forged his name on a mortgage-satisfaction document and that she had withdrawn the amount of the mortgage payoff out of the bank once she deposited the check into the parties’ jointly held account. The trial court noted in its judgment that it had considered the husband’s claim in making the property division.

As noted previously, the wife quit her job as a real-estate agent when she married the husband. The husband’s income is made up of $4,748 per month in military refeement benefits and $1,041.20 per month in Social Security benefits. The wife has no retirement accounts.

The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence so as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App.1986). Because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993).

The trial court allowed the wife to choose between a time-share in Orlando, Florida, and a time-share in Branson, Missouri; the wife chose the Orlando, timeshare. There is no dispute that an Orlando time-share is listed on the husband’s schedule of assets appended to the ante-nuptial agreement; that time-share is not specifically described. The antenuptial agreement provides that, “[a]fter their marriage, each party shall keep and retain sole ownership and control of all property, real or personal, now owned or hereafter acquired by such party.” The husband testified that he owned an Orlando timeshare before the marriage, and he did not indicate that he had sold that property. However, the wife listed an Orlando timeshare at Blue Tree Resort as jointly held property on one of her trial exhibits. Although she testified that she was not seeking either the Orlando or the Branson time-share, the wife is correct in arguing that the trial court was free to divide the parties’ assets in the manner it considered equitable. See Grimsley, 545 So.2d at 77 (stating that a trial court “has the power to use any reasonable means to effect a just distribution”). In light of the conflict in the evidence as to whether the Orlando time-share was a jointly held asset or was the same propei’ty owned by the husband before the marriage, the trial court was free to determine that the Orlando timeshare awarded.to the wife was not the one listed in the antenuptial agreement. We therefore cannot reverse the trial court’s judgment on the basis that it awarded the wife the Orlando time-share covered by the antenuptial agreement.

The husband argues that the trial court also erred in awarding the wife $60,000 representing her interest in the husband’s Wachovia account, which the husband states is his separate property under the agreement. The wife, however, argues that the account was a joint account as evidenced by the husband’s own testimony that the wife had written cheeks on a Wachovia account. Evidence of two Wachovia accounts appears in the exhibits. In the testimony, neither Wachovia account is identified by number or in any other manner; the parties do refer to the husband’s business account at times. The account from which the wife withdrew funds is the parties’ joint account. A Wa-chovia account containing over $126,000 is the joint account of the husband and Karin D. Heinzelmann, his daughter. In fact, the wife’s trial exhibit listing the parties’ various jointly and separately owned assets indicates that the $126,000 Wachovia account is the husband’s property.

In response to the husband’s post-judgment motion arguing that the trial court improperly awarded the wife a portion of the $126,000 Wachovia account, the trial court stated that it had found that “the funds of that account were used in the furtherance of the marriage and, therefore, not subject to the antenuptial agreement.” Although such a finding could, at the trial court’s discretion, result in the determination that the account should be included as marital property subject to division pursuant to Ala.Code 1975, § 30-2-51 (a), which permits a trial court to consider property acquired before the marriage or by gift or inheritance if it was used for the common benefit of the parties, see Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001); Ex parte Drummond, 785 So.2d 358, 362 (Ala.2000); and Bushnell v. Bushnell, 713 So.2d 962, 964 (Ala.Civ.App.1997), it would not prevent the account from remaining the separate property of the husband under the antenuptial agreement, which provides that property owned solely by the either party, whether it was in existence at the time of the execution of the agreement or was acquired during the marriage, remains that party’s sole property. The antenuptial agreement does not contain a provision similar to that in § 30-2-51 (a) making property used for the benefit of the marriage marital property. Thus, the trial court’s division of the funds in the husband’s Wachovia account was in contravention of the antenuptial agreement and must be reversed. See McGiffert v. McGiffert, 627 So.2d 972, 977 (Ala.Civ.App.1993) (holding that a tidal court may not dispose of property covered by an antenuptial agreement in any way but that prescribed by the agreement).

The husband’s next argument is that the trial court erred by awarding the wife a larger portion than him of the parties’ jointly owned property, which he says resulted from the trial court’s improper consideration of the property the husband retained by virtue of the antenuptial agreement. The husband relies on Ex parte LaMoreaux, 845 So.2d 801, 806 (Ala.2002), in which the supreme court reversed a trial court’s judgment dividing the parties’ marital property because the trial court had improperly considered the value of the husband’s gifted stock in contravention of Ala. Code 1975, § 30-2-51 (a). According to Ex parte LaMoreaux, a trial court fashioning a division of marital property may not consider at all the value of separate property owned before the marriage or acquired by inheritance or gift if it was not used for the common benefit of the parties. Ex parte LaMoreaux, 845 So.2d at 806; see also Hull v. Hull, 887 So.2d 904, 909 (Ala.Civ.App.2004). Thus, the husband argues, the trial court’s division of the parties’ jointly held property is inequitable.

The parties’ joint assets consisted of certain vehicles, the marital residence at Jubilee Point and its furnishings, and the condominium at the Royal Beach Racquet Club. The Jubilee Point house was worth $650,000 according to the husband; the wife estimated its value to be $500,000. The property has an outstanding mortgage of $296,000. The furnishings in the house are worth approximately $20,000. According to an exhibit in the record, the husband believed that the condominium was worth approximately $120,000, with a $32,000 mortgage balance, while the wife believed it to be worth $90,000, with a $25,000 mortgage balance. The wife was awarded two vehicles; the Jubilee Point house, valued at most at $650,000 with an associated indebtedness of $296,000; and the furnishings in the house, worth approximately $20,000. The husband was awarded the condominium, worth at most $120,000, with an indebtedness of as much as $32,000. In addition, the parties were each awarded one of the two time-shares owned by the parties; the wife chose the Orlando time-share, which she valued at $20,000, and the husband was then awarded the Branson time-share, which was valued by the wife at $26,000. Thus, the wife’s award, not counting the value of the vehicles, is approximately $394,000. The husband, however, was awarded only two assets, which, once the mortgage on the condominium is deducted, are valued at $114,000. The husband, then, was awarded 22.4% of the marital assets.

Unlike the trial court in LaMoreaux, which clearly indicated that it had considered the husband’s gift property, LaMo-reaux, 845 So.2d at 803, the trial court in the present case did not make the basis for its award of the bulk of the marital property to the wife apparent. Even without a clear indication from the trial court that it did consider property that should have been disregarded, we could conclude, in light of the large disparity between the awards to the parties, that the trial court considered the husband’s separate property in fashioning the division of the marital property, and we could further conclude that the division of property is so unsupported by the evidence as to be plainly and palpably wrong. See Hull, 887 So.2d at 909 (holding that, despite the fact that the trial court did not expressly state that it considered the wife’s inheritance property when fashioning its division of property, the property division was so unsupported by the evidence as to be plainly and palpably wrong).

However, the husband did admit to committing adultery in the summer of 2002 and has maintained a relationship with the same woman since the parties’ separation. The wife complained that she suspected the husband of having relationships with other women during the marriage based upon proof of late-night telephone calls and frequent contact with the other women. The trial court may well have considered the husband’s admitted infidelity in fashioning the property division; a trial court may consider fault when making a property division, even if it does not grant a fault-based divorce. Ex parte Drummond, 785 So.2d at 363; TenEyck v. TenEyck, 885 So.2d 146, 155 (Ala.Civ.App.2003). In addition, the husband’s current and future financial prospects are much better than those of the wife, who has been unemployed for seven years and has no retirement or investment accounts. See TenEyck, 885 So.2d at 154; Lutz, 485 So.2d at 1176. Thus, the trial court’s decision to award the husband a significantly smaller portion of the parties’ marital estate is supported by one view of the evidence, and, ever mindful of our standard of review, we will not substitute our judgment for that of the trial court. Ex parte Drummond, 785 So.2d at 360-61; TenEyck, 885 So.2d at 155.

The husband’s final argument concerns his allegation that the wife forged his name to a mortgage-satisfaction document and then converted the proceeds of the mortgage payoff by writing a check to herself from the account into which she had deposited the mortgage payoff. We note that the wife testified that she had been given permission to sign the husband’s name on the mortgage-satisfaction document and that she had used the money to pay for roofing work performed on the marital residence. In contravention of Rule 28(a)(10), Ala. R.App. P., the husband cites no legal authority regarding his claim that the trial court should have awarded him the money that the wife allegedly converted. Thus, we will not consider the husband’s argument on this point. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996).

In conclusion, we affirm the trial court’s judgment insofar as it determined that the antenuptial agreement was valid and enforceable. We likewise affirm the trial court’s failure to award the wife alimony because such an award is precluded by the antenuptial agreement. We reverse the trial court’s judgment insofar as it awarded the wife $60,000 from the husband’s Wachovia account, which is his separate property under the antenuptial agreement. We affirm the trial court’s judgment dividing the parties’ property in all other respects.

As noted above, the wife’s request for an attorney fee on appeal is denied.

APPEAL — AFFIRMED.

CROSS-APPEAL — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

THOMPSON, P.J., concurs in the result, without wilting.

      . Section 30-2-51(a) reads:
      “If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

      . We note that the trial court’s failure to divide the funds in the parties' joint Wachovia account, if it is still in existence, does not affect the finality of the judgment because, "when a trial court does not make specific disposition of an asset in a divorce [judgment], the parties are left in the same position relative to that asset as they were in before the divorce.” Ex parte Davis, 495 So.2d 672, 673 (Ala.1986); McGuire v. Horton, 586 So.2d 9, 9 (Ala.Civ.App.1991); Lacy v. Lacy, 403 So.2d 251, 254 (Ala.Civ.App. 1981); and Miller v. Miller, 391 So.2d 119, 120 (Ala.Civ.App.1980). The failure to divide each item of property does not render void an otherwise proper divorce judgment. Miller, 391 So.2d at 120.

      . The wife's exhibit listing the parties’ property indicates that the 1993 Mazda Miata vehicle she was awarded is worth $4,000. The 1998 Ford Explorer sport-utility vehicle she was also awarded is not mentioned in the exhibit, and no value was assigned to that vehicle. The husband was awarded his Alfa Romeo, which was his separate property under the antenuptial agreement, and a 2000 or 2001 Dodge Dakota pickup truck; no values were assigned to either of those vehicles.