author: STUART, Chief Justice.

text:
    Stephen COLLEY, as executor of the Estate of Hazel Colley, deceased v. The ESTATE OF Sara DEES and Franklin Leroy Stephens
    1170042
    Supreme Court of Alabama.
    June 15, 2018
    Elizabeth McAdory Borg of McAdoryBorg Law Firm, PC, Auburn, for appellant.
    Michael E. Jones of Jones & Coots, LLC, Luverne; and Terry L. Butts, Luverne, for appellees.
   STUART, Chief Justice.

Following the death of Sara Dees in February 2013, her nephew Franklin Leroy Stephens produced a will executed by Dees in September 2012 in which she bequeathed to him the vast majority of her estate. Dees's sister Hazel Colley ("Hazel"), who had been a named beneficiary in a previous will executed by Dees, initiated an action challenging the validity of the September 2012 will. Hazel passed away while the will contest was pending, and the executor of her estate, her son Stephen Colley ("Colley"), was ultimately substituted as plaintiff. Following a jury trial, a verdict was returned in favor of Stephens and Dees's estate, and the Pike Circuit Court accordingly entered a judgment in their favor. Colley appeals; we affirm.

I.

A more detailed recitation of the facts at the heart of this case can be found in Stephens v. Colley, 160 So.3d 278 (Ala. 2014) (" Stephens I"), in which this Court reversed a preliminary injunction that had been issued by the trial court. The facts essential to this appeal may be summarized as follows. In January 2012, Dees was residing in a rehabilitation center in Troy following the amputation of her second leg when Stephens checked her out and returned her to her house, moving in with her to help with her care. Over the course of the next year, Stephens arranged appointments for Dees with an attorney, who drafted a durable power of attorney designating Stephens as Dees's attorney-in-fact and the September 2012 will designating Stephens as the executor of Dees's estate and making him her primary heir. Stephens also drove Dees to various financial institutions in the area at which Dees maintained accounts and took steps to be added as either a signatory or beneficiary to those accounts.

In February 2013, Dees passed away. Stephens thereafter submitted her September 2012 will to the Pike Probate Court and was named executor of her estate. On March 12, 2013, Hazel initiated the underlying action by petitioning the trial court and asking it to take over the administration of Dees's estate; Hazel also simultaneously asked the trial court to remove Stephens as executor based on his 1990 conviction for manslaughter, which, she alleged, rendered him unfit pursuant to § 43-2-22(a), Ala. Code 1975, which bars any individual "convicted of an infamous crime" from serving as an executor. The trial court thereafter granted both of Hazel's requests, and Stephens's daughter Sonya Bolling was appointed the new executrix of Dees's estate. In August 2013, Hazel amended her initial pleading, asserting claims against Stephens and Dees's estate and asking the trial court to set aside both the September 2012 will and actions taken pursuant to the power of attorney because, she alleged, they had been procured by fraud, misrepresentation, and undue influence. In October 2013, Hazel initiated a new action asserting additional undue-influence and breach-of-fiduciary-duty claims against Stephens; upon Hazel's request, this new action was consolidated with the existing action. None of Hazel's pleadings through this time requested a trial by jury on her claims.

In February 2014, Hazel moved the trial court to enter a temporary restraining order barring Stephens from spending any more money from Dees's accounts or taking any action affecting the title to Dees's house. Hazel also requested that Stephens be required to identify where all assets formerly held by Dees were located and that certain funds that had previously been identified be paid into the trial court for holding. The trial court thereafter issued the requested temporary restraining order and, following a subsequent hearing, issued a preliminary injunction extending the terms of the restraining order until the litigation was resolved. Stephens appealed to this Court, and, in Stephens I, we reversed the trial court's order entering the preliminary injunction because it failed to comply with Rule 65(d)(2), Ala. R. Civ. P. 160 So.3d at 284.

While Stephens I was pending, Hazel passed away. On remand, Colley was substituted as the plaintiff, and the trial court issued another preliminary injunction, the terms of which were similar to the preliminary injunction reversed on appeal but with additional explanation so as to comply with Rule 65(d)(2). Stephens appealed that preliminary injunction also; however, in March 2015, this Court affirmed the trial court's preliminary injunction without an opinion. See Stephens v. Colley, 210 So.3d 1091 (Ala. 2015) (table) (" Stephens II").

While Stephens II was pending, Colley moved the trial court to sever the claims against Dees's estate, which had not appealed either of the preliminary injunctions entered, so that those claims could proceed to trial. In October 2014, the trial court separated the claims. Thereafter, Colley moved the trial court to remove Bolling as the executrix of Dees's estate. That motion was vigorously opposed by Dees's estate, and the trial judge ultimately recused himself from the case before Colley withdrew his request to remove Bolling so that, he stated, the litigation could move toward a resolution.

After a new trial judge was appointed, a hearing was held in October 2015 at which the trial court ordered the parties to mediation and stated that, if mediation was unsuccessful, a bench trial would be scheduled. In November 2015, Colley moved for the first time for a trial by jury, arguing that the previous trial judge had indicated that he would use an advisory jury and that no party would accordingly be prejudiced if a jury heard the case. Stephens and Dees's estate responded by arguing that any right to a jury trial had been waived because it had not previously been asserted. The parties were thereafter unable to agree to dates and details for any mediation proceedings, and, in March 2016, Colley moved the trial judge to recuse himself, citing the trial court's management of the jury-trial and mediation issues, as well as its indication that it would attempt to narrow the scope of the issues at trial and its apparent "personal relationship" with defense counsel. In July 2016, the trial judge denied the motion to recuse in a written order addressing each of the concerns raised by Colley; however, the trial court also subsequently agreed to receive additional briefs on the jury-trial issue. In February 2017, the trial court entered an order granting Colley's request for a jury trial, stating:

"The court finds that pursuant to Rule 38(d), Ala. R. Civ. P., there has been a waiver of right to trial by jury. [However,] Rule 39(b), Ala. R. Civ. P., allows discretion in allowing an untimely jury demand. A trial court should exercise its discretion liberally in favor of granting a jury trial in absence of strong and compelling reasons to the contrary. A right to a trial by jury is fundamental and courts should indulge every reasonable presumption against waiver. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389 (1937).
"Since the undersigned judge never set this matter for a bench trial after reassignment and since there would be no significant prejudice to the defendants should the court grant the jury demand, it is ordered that the plaintiff's request for a jury demand is granted. The clerk shall transfer this case to the jury docket. As previous[ly] ordered, the court will first address 'only' the will contest in a bifurcated trial.[ ] A will contest is limited to the issue of whether the writing in question is a valid will of the decedent. Ray v. Huett, 225 So.3d 30 (Ala. 2016)."

(Emphasis in original.) On March 3, 2017, the case was set for the jury term beginning June 7, 2017.

On June 2, 2017, Stephens and Dees's estate filed a motion in limine asking the trial court to bar Colley from discussing at trial Stephens's 1990 manslaughter conviction or the fact that that conviction had served as the basis for his removal as the executor of Dees's estate; the trial court granted the motion, holding that the prejudicial effect of such evidence would substantially outweigh any probative value. On June 12, 2017, the case finally proceeded to trial. Before opening statements, Colley requested that he also be allowed to try his fraud and undue-influence claims relating to the power of attorney and Dees's financial accounts; however, the trial court denied the request, subsequently issuing a written order in which it stated that "[t]his court has made it abundantly clear from assignment that the court would try only the will contest first and that all pending counts of both complaints would remain pending for another trial."

Following the completion of Colley's case-in-chief, Stephens and Dees's estate moved the trial court to enter a judgment as a matter of law in their favor on all counts. The trial court granted that motion in part, holding that, although "there is a prima facie case that's been presented with regards to undue influence and mental capacity ..., I've not heard any evidence of [fraud that would make the will invalid]." Accordingly, the trial court entered a judgment as a matter of law in favor of Stephens and Dees's estate on the claim that Dees's September 2012 will was the product of fraud. Stephens and Dees's estate thereafter presented their defense, and, after they rested their case, the trial court denied the parties' respective motions seeking judgments as a matter of law and submitted the case to the jury. Shortly after the jury began its deliberations, it asked the trial court for legal pads and for a written copy of the jury instructions it had been given. After supplying the legal pads and discussing the other request with counsel for the parties, the trial court informed the jury that it could not give it any written instructions to take into deliberations, but further explained that "the actual instructions I've given you are the guidelines or the law you are to apply to this case. But it does involve the issue of whether or not it's a valid will, whether or not Ms. Dees had mental capacity, and whether or not there was undue influence by Leroy Stephens."

The next day, the jury sent the trial court another note stating that it could not agree on a verdict; the trial court released the jury for lunch and instructed it to continue deliberations when it returned. After lunch and further deliberations, the jury did reach a verdict-in favor of Stephens and Dees's estate-and, on June 15, 2017, the trial court entered a judgment consistent with that verdict, further certifying that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. After his postjudgment motions were denied, Colley filed a notice of appeal to this Court.

II.

Colley argues that the judgment entered against him and in favor of Stephens and Dees's estate should be reversed for six reasons. First, he argues that the trial court erred by not entering a judgment as a matter of law in his favor at the close of all the evidence. This Court has stated:

"When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law].
Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id."

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala. 2003). Colley specifically argues that he was entitled to a judgment as a matter of law because, he says, after he presented his case-in-chief, the trial court specifically held that he had established a prima facie case both that Dees lacked the mental capacity to execute the September 2012 will and that she executed it only because of the undue influence Stephens executed over her, and, Colley further alleges, Stephens and Dees's estate thereafter failed to present any medical evidence that would rebut his evidence indicating that Dees lacked the mental capacity to execute a will in September 2012. This argument is misguided.

Colley contends in his brief that the trial court's ruling that he had established a prima facie case left "no genuine issue of fact remaining to be resolved at the end of [his] case." Colley's brief at p. 20. In fact, however, the trial court's ruling meant exactly the opposite-that he had produced substantial evidence creating a factual dispute. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala. 1992). Therefore, Colley was entitled to have his claims submitted to the jury, but the jury was entitled to decide those claims as it saw fit. Colley claims that Stephens and Dees's estate failed to refute the evidence he submitted of Dees's mental incompetency when they presented their case-a claim Stephens and Dees's estate refute; however, this argument overlooks the fact that evidence was also presented during the presentation of Colley's case from which a jury might have concluded that Dees was competent when she executed the September 2012 will. For example, Colley himself testified that, although he visited Dees three times while Stephens was living with her, he was never aware that she was incompetent and she, in fact, "seemed to be okay." Moreover, although the medical records introduced by Colley contained evidence of Dees's diminished mental capacity, they also contained some evidence indicating that Dees was not permanently incompetent. Notably, a March 21, 2012, medical record contained the following entry:

"Ms. Dees is noted with orientation to all spheres. She voices her needs. And Ms. Dees was able to provide accurate responses during her cognitive assessment. She did not require any cueing interventions during her cognitive assessment. Ms. Dees is cognitively able to make choices that are relative to her plan of care."

The jury might have chosen to give greater weight to this evidence when deliberating, or it might also have entirely disbelieved the conflicting evidence; regardless of its reasoning, the jury, as the ultimate fact-finder, was entitled to decide factual issues as it saw fit. See Haynes v. State, 644 So.2d 1281, 1282-83 (Ala. Crim. App. 1994) ("[T]he fact that the state failed to present a rebuttal witness does not require us to overturn the jury's verdict. The jury, in weighing the credibility of the evidence, has the right to disbelieve all of the evidence or to disbelieve any part of it.").

We further note that, to the extent Colley is arguing that Stephens and Dees's estate were required to refute, with medical evidence, the evidence he put forth of Dees's incompetency, he is incorrect. In Sanders v. Brooks, 611 So.2d 336 (Ala. 1992), this Court considered a case in which a doctor diagnosed the testatrix with dementia approximately two months before she executed a will, but various other lay witnesses who had had interactions with her subsequent to that diagnosis testified that she appeared to be of sound mind. The Sanders Court concluded that the testimony of the lay witnesses could be given more weight than the doctor, explaining:

"Evidence showing that a testatrix had become increasingly feeble, unable to handle her own affairs, and even unaware of her own actions at a time prior to executing a will is insufficient to show that the testatrix lacked testamentary capacity. Sessions v. Handley, 470 So.2d 1164 (Ala. 1985). A testatrix may be found mentally competent to execute a will, despite evidence that she was diagnosed as dementia praecox, if there is sufficient evidence from competent witnesses who transacted business with or assisted her in financial affairs. Lawrence v. First National Bank of Tuskaloosa, 516 So.2d 630 (Ala. 1987). The question of whether there was testamentary capacity is determined by the testatrix's mental condition at the time she executed the will. Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968). Testamentary capacity is defined as follows:
" ' "[M]ind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make-to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other...." '
" Sessions v. Handley, 470 So.2d at 1167, quoting Fletcher v. Deloach, 360 So.2d 316 (Ala. 1978).
"In its order reversing the probate court's judgment, the circuit court found that the probate court had failed to give due regard to [the testimony of the attorney that drafted the will] and noted that [the attorney] had had far greater opportunity to scrutinize [the testatrix's] mental state. After thoroughly examining the record, we must agree with the circuit court. The testimony of [one of the will contestants], the neighbor, and [the diagnosing doctor] merely establishes that [the testatrix] was in mental decline; it does not prove that she was in dementia at the time she planned and executed her will. [The attorney] and his secretary were the only witnesses who actually observed [the testatrix] during this period; thus, their testimony must be afforded greater weight. Accordingly, we find no error in the circuit court's order granting a new trial in this matter."

611 So.2d at 338-39.

During the presentation of their case, Stephens and Dees's estate elicited testimony from various friends, neighbors, and acquaintances of Dees who testified that she was alert and mentally competent while living under Stephens's care and during the period in which she executed the September 2012 will. Accordingly, there was a disputed factual issue with regard to Dees's competency, and the trial court committed no error when it denied Colley's motion for a judgment as a matter of law at the close of all the evidence.

III.

Colley's second argument is that the trial court erred by entering a judgment as a matter of law in favor of Stephens and Dees's estate on his fraud claims. He further argues that the trial court exceeded its discretion inasmuch as it prevented him from introducing evidence of Stephens's history of bad acts, which, Colley alleges, would have helped him establish a prima facie case of fraud. However, Colley has failed to include in his brief any discussion of the actual elements of a fraud claim or any citations to authority that would support his broad arguments. " 'Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment on those issues, for it is neither the Court's duty nor its function to perform all the legal research for an appellant.' " Welch v. Hill, 608 So.2d 727, 728 (Ala. 1992) (quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala. 1990) ). Accordingly, Colley is entitled to no relief on the basis of this argument.

IV.

Colley next argues that the judgment against him should be reversed based on the trial court's decision to bifurcate the case so that the validity of the September 2012 will was determined in the initial trial, and his claims relating to the power of attorney and Dees's financial accounts were left for a subsequent trial. Colley argues that his case was "gutted" just prior to trial when the trial court informed him of its decision to bifurcate and that he should accordingly be granted a new trial based on "accident or surprise, which ordinary prudence could not have guarded against." § 12-13-11(a)(3), Ala. Code 1975.

Initially, we note that the record reveals that the trial court explained at various points dating back to at least June 2016 that it would be conducting a bifurcated trial, and Colley's claim that he was taken by surprise by the trial court's decision on the eve of trial is greatly exaggerated. Any questions regarding what claims would be included in the "will contest" that would be tried first were answered in the trial court's February 2017 order when it stated: "A will contest is limited to the issue of whether the writing in question is a valid will of the decedent." In light of the trial court's repeated statements in this regard, the onus was upon Colley to seek clarification at some time before the trial was to begin if he still had questions regarding the bifurcation.

We further note that Colley has failed to cite any authority in support of his argument that would demonstrate that the trial court exceeded its discretion in how it scheduled and managed the trial of Colley's claims. See generally EB Invs., L.L.C. v. Pavilion Dev., L.L.C., 77 So.3d 133, 136-37 (Ala. 2011) (explaining that trial courts have wide discretion under Rule 42(b), Ala. R. Civ. P., in ordering separate trials and severing claims). Accordingly, Colley is not entitled to a new trial on the basis of this argument.

V.

Colley's fourth argument is that the trial court erred by granting Stephens's motion in limine and excluding all evidence relating to Stephens's manslaughter conviction and by subsequently barring Colley from introducing other evidence of Stephens's reputation and alleged history of bad acts. Colley argues that the evidence he sought to introduce in this regard established that Dees could have been afraid of Stephens; he also argues that the evidence of Stephens's alleged history of deceit would have had probative value with regard to his fraud claims. Stephens and Dees's estate argue that the trial court's evidentiary decisions were all proper and within its broad discretion. We agree.

" ' "[T]he trial court has great discretion in determining whether evidence ... is relevant and whether it should be admitted or excluded." Sweeney v. Purvis, 665 So.2d 926, 930 (Ala. 1995). When evidentiary rulings of the trial court are reviewed on appeal, "rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala. 1998), citing Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala. 1991).'
" Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala. 2001)."

Van Voorst v. Federal Express Corp., 16 So.3d 86, 92 (Ala. 2008). At a pretrial hearing, the trial court explained that it would allow Colley to introduce evidence explaining that Stephens was "not qualified" to serve as the executor of Dees's estate, but it would not allow Colley to explain that the lack of qualification was the result of a manslaughter conviction, because, it reasoned, evidence of that conviction would be prejudicial and the prejudicial effect would substantially outweigh any probative value. In its written order granting the motion in limine, the trial court further referenced the fact that more than 10 years had passed since the later of the conviction or Stephens's release from confinement, an apparent reference to Rule 609(b), Ala. R. Evid., which provides that evidence of a conviction in the nature of Stephens's conviction for manslaughter

"is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

During the course of trial, Colley attempted to elicit other evidence of Stephens's alleged bad acts and reputation for violence, and the trial court prevented him from doing so each time, explaining on one such occasion that Stephens's reputation for "peacefulness is [of] no relevance; truthfulness would be" and another time that "I just don't think it's relevant." Thus, the trial court explained that it was excluding evidence of Stephens's alleged violent reputation and past acts because it did not deem them relevant in the will contest being tried; nevertheless, the trial court also explained that Stephens's reputation for truthfulness was relevant, and it allowed Colley to question witnesses on that topic, even over the objection of Stephens and Dees's estate.

Considering the full record, we cannot conclude that the trial court exceeded its discretion in making any of those evidentiary determinations. The Alabama Rules of Evidence empower a trial court to exclude evidence it deems to be irrelevant as well as evidence that, although possibly relevant, is deemed to be sufficiently prejudicial that the risk of that prejudice outweighs any probative value. See Rule 402, Ala. R. Evid. ("Evidence which is not relevant is not admissible."), and Rule 403, Ala. R. Evid. ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...."). The trial court fully explained its decisions to exclude the evidence in question, and its decisions in that regard have a reasonable basis and are consistent with the Alabama Rules of Evidence and our caselaw. See, e.g., McMahon v. Yamaha Motor Corp., U.S.A., 95 So.3d 769, 775 (Ala. 2012) ("We agree that the trial court had a reasonable basis under Rule 403 upon which to exclude the evidence the [appellants] argue should not have been excluded; accordingly, we hold that the trial court did not exceed its discretion by excluding [that] evidence ...."). We further note that Colley has cited no caselaw that addresses a trial court's discretion with regard to the admission of evidence or that would indicate that the trial court exceeded its discretion in any respect. Colley is not entitled to a new trial on the basis of the trial court's decisions excluding evidence he wanted to introduce.

VI.

Colley's penultimate argument is that he is entitled to a new trial because, he alleges, the jury was evidently confused by the jury instructions inasmuch as it questioned the trial court regarding what the law was almost immediately after beginning its deliberations. In support of this argument, he cites Mobile Gas Service Corp. v. Robinson, 20 So.3d 770, 781 (Ala. 2009), and McGregory v. Lloyd Wood Construction Co., 736 So.2d 571, 579 (Ala. 1999), for the proposition that a party is entitled to have the jury correctly instructed on the law, provided the instruction is relevant to the case and is not confusing or misleading. Colley does not identify any specific jury instructions that were given-or any requested jury instructions that were not given-that were the likely source of the jury's alleged confusion; rather, he simply alleges that "[i]t is blatantly obvious that the jurors did not understand nor comprehend the instructions given them nor the standard by which they were supposed to be deliberating in this case." Colley's brief, p. 29.

Although it is apparent that there was at least some initial confusion on the jury's part, inasmuch as it sought additional guidance from the trial court shortly after beginning deliberations, Colley has not established that this initial confusion entitles him to a new trial. During a conference with counsel held after receiving the jury's request for further guidance, counsel for Colley requested that the trial court identify for the jury the two main issues it needed to address-Dees's mental capacity and whether Stephens exercised undue influence over her-while counsel for Stephens and Dees's estate argued that there was no need to give any more instructions and that the jury should simply return to its deliberations. The trial court ultimately agreed with counsel for Colley and directed the jury as follows:

"I have told you I've given you the instructions as to the applicable law and you have the evidence. Just to help clear things up, you know, I will tell you that the issues, based upon the instructions, or a summary of them, and then the actual instructions I've given you are the guidelines or the law you are to apply to this case. But it does involve the issue of whether or not it's a valid will, whether or not Ms. Dees had mental capacity, and whether or not there was undue influence by Leroy Stephens. But the guidelines you're to use are the instructions that I have previously given you."

No party objected to this additional instruction.

Thus, after the jury informed the trial court of its initial confusion, the trial court gave the jury additional instruction consistent with the request of Colley's counsel, and no objection to that instruction or similar manifestation of disagreement such as a motion for a mistrial was made by any party. In light of these facts, we are not inclined to hold that the trial court committed any error with regard to jury instructions, much less error meriting the reversal of the judgment entered on the jury's verdict. See also Campbell v. State, 654 So.2d 69, 72 (Ala. Crim. App. 1994) (citing Phillips v. State, 527 So.2d 154 (Ala. 1988) ("[T]he appellant cannot request a jury instruction and then contend that the instruction was in error. The error in such a case is invited error.") ).

VII.

Colley's final argument is that he was prejudiced by the trial court's demeanor toward his counsel during the course of the trial. In support of this argument, Colley refers to the motion seeking the trial judge's recusal he made before trial, presumably in an attempt to support his implied argument that the trial court generally treated him and his counsel unfairly throughout this litigation so as to effectively make the trial and the resulting verdict fundamentally unfair. We note initially that Colley has put forth no standard by which this Court should evaluate his argument, and he has cited no caselaw or authority that would support it. He is accordingly entitled to no relief on that basis alone. Welch, 608 So.2d at 728. Nevertheless, because of the nature of Colley's charge, we will address the most specific allegation he makes-that the trial court "scolded" his counsel and threatened to hold her in contempt in a loud voice the jury "obviously" heard, thus diminishing his counsel in front of the jury and prejudicing his case.

The record indicates that, on direct examination, Colley's counsel asked Colley about Stephens's reputation for truthfulness. After Colley testified that Stephens had a reputation for being untruthful, Colley's counsel asked him about Stephens's "general reputation for peacefulness." Counsel for Stephens and Dees's estate objected, and a bench conference was held in which the trial court reiterated its previous position that Stephens's reputation for peacefulness was not relevant. Colley's counsel thereafter withdrew the question and passed the witness for cross-examination. The following exchange then occurred:

"Stephens's counsel: And here your aunt was that you cared so much about, that you were so concerned about, that you let live with a man that you thought was untruthful, had a reputation for being untruthful, and you didn't do one thing, correct?
"Colley's counsel: Objection, your honor.
"Court: What's your objection?
"Colley's counsel: Well, the truth-
"Stephens's counsel: She doesn't like the answer-
"Colley's counsel: The truth-no. The truthfulness is not the issue. The peacefulness is the issue here, and we're not allowed to go down that road, and so that would be the reason why I did not go there. But we can't explore our road, but he's going to get to go down his road.
"Court: Ma'am, you're the one that asked the question about truthfulness, and he has a right to respond to it. And let me-come here. Come here.
"Reporter's note: (Whereupon, a bench conference was held, to which the following occurred out of the hearing of the trial jury:)
"Court: If you make one more-
"Reporter: I can't hear.
"Court:-in front of that jury out loud, you will be held in contempt and fined. Do you understand that? Do you understand?
"Colley's counsel: I do.
"Reporter's note: (Whereupon, the following proceedings were held in open court ....)"

Thus, the record indicates that, after the trial court had repeatedly instructed the parties that it was not going to allow evidence of Stephens's alleged violent reputation, counsel for Colley nevertheless stated in front of the jury that "peacefulness is the issue here." The trial court responded by calling counsel up for a bench conference at which it threatened Colley's counsel with contempt if she raised that issue in front of the jury again. Colley alleges that this scolding was done in a voice the jury obviously heard; however, that allegation is belied by the fact that the court reporter indicated that she could not hear the trial judge in order to record his statements. Moreover, the court reporter affirmatively noted in her record that the exchange "occurred out of the hearing of the trial jury." It thus appears that Colley's concern that the jury heard the exchange and subsequently thought less of his counsel is unfounded, and his argument is without merit.

VIII.

On appeal, Colley challenges the judgment entered against him in his action contesting the September 2012 will executed by Dees, his aunt, leaving the vast majority of her estate to Stephens. However, Colley has failed to identify any errors committed by the trial court that would merit reversing the judgment entered on the jury's verdict and either entering a judgment in his favor or ordering a new trial. The judgment entered by the trial court is accordingly affirmed.

AFFIRMED.

Bolin, Wise, and Sellers, JJ., concur.

Shaw, J., concurs in the result.

      At a June 2016 hearing on Colley's motion to recuse, the trial judge had explained that he would first hold a trial on the will contest before considering other claims related to the propriety of how Stephens became a signatory or beneficiary on Dees's various financial accounts. At one point during that hearing, the trial judge explicitly stated: "I'm not even concerned about the [certificates of deposit] in the will contest, because we've decided that's a trial for a separate day because we're going to address the will contest first."

      Colley argues broadly that a judgment as a matter of law in his favor also should have been entered on his undue-influence claim; however, his specific argument discusses only the evidence of Dees's competency and does not address the elements of an undue-influence claim. See, e.g., McGimsey v. Gray, 260 So. 3d 25 (Ala. 2018) (discussing elements of an undue-influence claim in a will contest). Any argument regarding Colley's undue-influence claim, accordingly, has been waived. See Tucker v. Cullman-Jefferson Ctys. Gas Dist., 864 So.2d 317, 319 (Ala. 2003) ("[N]o matter will be considered on appeal unless presented and argued in brief.").

      The applicability of § 12-13-11 is limited to, at most, probate court proceedings. See Code Commissioner's Notes following § 12-13-11, Ala. Code 1975 ("This section is superseded by the Alabama Rules of Civil Procedure as to civil proceedings, but has been retained for possible applicability in probate proceedings.").

      We further note that even the trial court's threatening Colley's counsel with contempt in front of the jury, had that occurred, would not require a finding of reversible error. In a similar case in which counsel persisted in raising an issue after multiple sustained objections and after the trial court stated that that issue was not relevant, no prejudice was found, notwithstanding the trial court's subsequent statement to counsel in open court that " 'I am telling you now to shut up about this marijuana business or I will put you in contempt.' " See Sanders v. State, 426 So.2d 497, 506 (Ala. Crim. App. 1982).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    NORTH ALABAMA REAL ESTATE GROUP, LLC v. Alejandro PINEDA
    2161064
    Court of Civil Appeals of Alabama.
    April 27, 2018 Rehearing Denied June 22, 2018
    Michael O. Godwin of Chambless Math Carr, P.C., Montgomery, for appellant.
    Farahbin Majid of Legal Services Alabama, Inc., Huntsville; and Sara Zampierin of Southern Poverty Law Center, Montgomery, for appellee.
    Jason B. Tompkins and Chase T. Espy of Balch & Bingham LLP, for amici curiae Alabama Installment Lenders Association and Alabama Consumer Finance Association, in support of the appellant.
   THOMPSON, Presiding Judge.

North Alabama Real Estate Group, LLC ("NAREG"), appeals from a judgment of the Madison Circuit Court ("the circuit court") dismissing the writ of garnishment it had received against Alejandro Pineda.

The record indicates the following. NAREG filed an unlawful-detainer action against Pineda in the Madison District Court ("the district court") on August 1, 2015, in which NAREG sought possession of residential rental property and damages.

Before the trial, Pineda agreed to vacate the property. On January 13, 2016, after a trial on the issue of damages, the district court entered a judgment against Pineda and awarded NAREG $9,162.50, plus court costs. The judgment had not been paid five months later, so on June 22, 2016, NAREG filed its application for a writ of garnishment in the district court. The district court granted the application and issued the writ on June 23, 2016. Pineda responded by filing a motion to stay the garnishment and a verified declaration and claim of exemption. In his claim of exemption, Pineda asserted that his wages were approximately $300 each week and were exempt from garnishment pursuant to Article 10, § 204, of the Alabama Constitution of 1901 ("§ 204"). NAREG challenged Pineda's claim of exemption, contending that Pineda was entitled to a one-time-only exemption of $1,000 and that the constitutional exemption of $1,000 in personal property did not include wages. Pineda then moved to dismiss the garnishment. In response, NAREG moved to deny the motion to dismiss.

On September 2, 2016, the district court entered a judgment determining that Pineda was entitled to a single $1,000 exemption, after which 25% of his net income was to be withheld from future wages. Pineda timely appealed the district court's determination to the circuit court.

On October 25, 2016, in response to a joint motion of the parties, the circuit court stayed the writ of garnishment the district court had issued on June 23, 2016. On April 6, 2017, Pineda filed a motion in the circuit court again seeking the dismissal of the garnishment. He also submitted a trial brief to the circuit court, in which he argued that § 6-10-6.1, Ala. Code 1975, was unconstitutional. On April 7, 2017, NAREG moved to deny Pineda's motion to dismiss.

A hearing was held on April 10, 2017, during which the parties presented their arguments to the circuit court. A transcript of the hearing is not included in the record on appeal, but the parties agree that no evidence was submitted during that hearing. On April 17, 2017, the circuit court entered a judgment determining that Pineda was "entitled to a one time exemption of $1,000" and that, thereafter, he was "entitled to claim future wages as exempt up to 75% of each paycheck." The circuit court ordered Pineda's employer to withhold 25% of Pineda's net income from future income, pursuant to the writ of garnishment.

On May 15, 2017, Pineda filed a "motion to reconsider" in the circuit court, pursuant to Rule 59(e), Ala. R. Civ. P. In his postjudgment motion, Pineda advised the circuit court of this court's opinion in Merrida v. Credit Acceptance Corp., 238 So. 3d 1249 (Ala. Civ. App. 2017), which had been issued less than 30 days after the circuit court's judgment of April 17, 2017. Pineda relied on Merrida for its holding that, because the employees in the two cases addressed in that opinion averred that they did "not accumulate more than $1,000 in wages, they [were] entitled to claim the entirety of their wages each pay period 'over and over again,' ... until such time as they accumulated more than $1,000." Id. at 1253 (quoting Walker v. Williams & Bouler Constr. Co., 46 Ala. App. 337, 341, 241 So.2d 896, 900 (Ala. Civ. App. 1970) ).

NAREG responded to Pineda's "motion to reconsider," arguing that, pursuant to § 6-10-6.1, which became effective before NAREG's unlawful-detainer action against Pineda was filed on August 1, 2015, Pineda was barred from claiming wages as personal property subject to constitutional exemption.

On May 17, 2017, the circuit court entered a judgment dismissing the writ of garnishment. The circuit court did not elaborate on its decision. On June 13, 2017, NAREG filed a "motion to reconsider" the dismissal of the garnishment. That motion was denied by operation of law on September 11, 2017. NAREG appealed to this court on September 15, 2017.

NAREG contends that the circuit court erred by not applying § 6-10-6.1 to preclude Pineda from claiming his wages as personal property " 'over and over again.' " Merrida, 238 So. 3d at 1253. That statute provides:

"(a) Wages, salaries, or other compensation of a resident are not personal property for the purposes of exemption from garnishment, levy, sale under execution, or other process for the collection of debt.
"(b) It is the intent of this section to exclude from the meaning of personal property the wages, salaries, or other compensation of a resident for the purposes of the personal property exemption under Section 6 - 10-6 and Section 204 of the Constitution of Alabama of 1901."

In Alabama Telco Credit Union v. Gibbons, 195 So.3d 1012, 1016 (Ala. Civ. App. 2015), this court explained that,

"[b]efore the enactment of Act No. 2015-484 [codified in pertinent part at § 6-10-6.1 ], wages were eligible for inclusion as personal property under the constitutional exemption. See, e.g., Roberts v. Carraway Methodist Med. Ctr., 591 So.2d 870, 871 (Ala. Civ. App. 1991) (holding that '[p]ersonal property has been determined to include wages' for purposes of Ala. Const. 1901, Art. X, § 204 ). Because Gibbons's debt was incurred before Act No. 2015-484 was enacted on June 11, 2015, Gibbons was allowed to select his wages as personal property for exemption under Ala. Const. 1901, Art. X, § 204."

(Emphasis added.)

Similarly, in Merrida, this court recognized that " '[b]ecause [Merrida's and Nettles's respective] debt[s were] incurred before Act No. 2015-484 was enacted on June 11, 2015, [Merrida and Nettles were] allowed to select [their] wages as personal property for exemption under Ala. Const. 1901, Art. X, § 204.' [ Gibbons, 195 So.3d] at 1016." Merrida, 238 So. 3d at 1251-52. It is undisputed that, in this case, the debt subject to garnishment was incurred after June 11, 2015. Thus, this is the first opportunity this court has had to determine, regarding debts incurred after the enactment of § 6-10-6.1, whether wages are eligible for consideration as personal property for purposes of the constitutional exemption from garnishment under § 204.

In his brief on appeal, Pineda raises a number of arguments that the legislature improperly amended the Alabama Constitution of 1901 in enacting § 6-10-6.1 and, further, that the legislature violated the constitutional right given to all Alabama citizens to exempt an accumulation of wages up to $1,000 from garnishment when it passed that statute. Many of the arguments Pineda makes regarding the constitutionality of § 6-10-6.1 appear to have merit and are worthy of consideration. However, in reviewing the record on appeal, we find no indication that either party provided the Alabama Attorney General's Office with notice that the constitutionality of § 6.10-6.1 was being challenged in this case. Additionally, in their respective briefs to this court, neither party refers us to a page in the record demonstrating that the attorney general's office was served with notice of the constitutional challenge.

If the party challenging the constitutionality of a statute fails to serve the attorney general, as required by Ala. Code 1975, § 6-6-227, the trial court has no jurisdiction to decide the constitutional claims. Guy v. Southwest Alabama Council on Alcoholism, 475 So.2d 1190 (Ala. Civ. App. 1985). Moreover, our supreme court has held:

" 'A constitutional issue can be reached by [an appellate] Court only when it has been raised by a party at the trial level and the attorney general has been served pursuant to § 6-6-227 and Rule 44, Ala. R. App. P. When a party challenging the constitutionality of a statute fails to serve the attorney general, the trial court has no jurisdiction to decide the constitutional claim, and any judgment regarding that claim is void.' "

Ex parte Northport Health Serv., Inc., 682 So.2d 52, 55 (Ala. 1996) (quoting Ex parte St. Vincent's Hosp., 652 So.2d 225, 228 (Ala. 1994) ); see also Myers v. Myers, 260 So. 3d 55, 65(Ala. Civ. App. 2018) (same).

In his appellate brief, Pineda states in a footnote, without elaboration or citation to authority, that he is asserting that § 6-10-6.1 is unconstitutional as applied to him. We recognize that § 6-6-227 applies only to facial challenges and not to challenges to the constitutionality of a statute as it applies to an individual. See Mobile Cty. Dep't of Human Res. v. Mims, 666 So.2d 22, 26 (Ala. Civ. App. 1995) (finding "no requirement that the Attorney General's office be served" when Mims challenged the constitutionality of the officials' enforcement of statutes against him, rather than challenging "the constitutionality of the statutes or regulations themselves").

In State v. Adams, 91 So.3d 724, 754 (Ala. Crim. App. 2010), the Alabama Court of Criminal Appeals explained the difference between an "as applied" constitutional challenge to a statute, which is based on the facts of a particular case, and a "facial" constitutional challenge to a statute, which is based on whether the statute is always unconstitutional, regardless of the particular facts. See Weldon v. Ballow, 200 So.3d 654, 659 (Ala. Civ. App. 2015). The arguments that Pineda made in the trial brief he submitted to the circuit court as well as in his brief to this court involve the impropriety of the legislature's attempt to change the meaning of "personal property" in § 204 by statute and not by amending the Alabama Constitution of 1901. Pineda also argued that the legislature violated the separation-of-powers doctrine by improperly taking upon itself the duty of interpreting the Alabama Constitution of 1901 when it declared that wages could not be considered personal property pursuant to § 204. See, Nelson v. Brown, 242 Ala. 515, 519, 7 So.2d 572, 575 (1942) ("[A] legislative attempt to construe statutes is a usurpation of judicial function."). In arguing that the legislature acted unconstitutionally in passing § 6-10-6.1, we cannot say that his argument is an "as applied" challenge to the statute. Instead, Pineda argues that § 6-10-6.1 is unconstitutionally created, which necessarily means that his argument is that the statute is unconstitutional as to everyone, not just as applied to him.

The circuit court did not provide a basis for its determination that, because Pineda never accumulated wages of more than $1,000, he was entitled to claim that his wages were exempt from garnishment in perpetuity or until he accumulated more than $1,000 in wages. However, based on the arguments presented before that court, it appears that the circuit court determined that Pineda was entitled to claim the $1,000 personal-property exemption pursuant to § 204. It also appears that, in reaching its conclusion, the circuit court relied on Merrida, supra, and Gibbons, supra, both of which explicitly note that § 6-10-6.1 was not effective at the time the debts at issue in those cases accrued, and on other opinions issued before the enactment of § 6-10-6.1. Pineda's argument in seeking the dismissal of the writ of garnishment is dependent on a determination that § 6-10-6.1 is unconstitutional. Because he did not serve the attorney general's office with his constitutional challenge to § 6-10-6.1, we have no choice but to conclude that, to the extent the circuit court allowed Pineda to claim that his wages were exempt from garnishment pursuant to § 204, the judgment must be declared void. Ex parte Northport Health Serv., Inc., 682 So.2d at 55 ; Myers, supra.

As a result, we cannot consider the constitutionality of § 6-10-6.1 in determining the propriety of the circuit court's judgment dismissing the writ of garnishment. Despite precedent dating from the Alabama Constitution of 1868 through this court's opinion in Merrida, released in 2017, § 6-10-6.1 now prohibits wages from being considered personal property for purposes of exemption from garnishment under § 204. Therefore, the $1,000 constitutional exemption of Pineda's wages which the circuit court allowed in dismissing the writ of garnishment, is now impermissible. Instead, under the constitutional exemption, Pineda and other laborers and employees are entitled to retain 75% of their wages, salaries, or other compensation, and the garnishee is permitted to retain the remaining 25% until such time as the writ of garnishment is fulfilled. § 6-10-7(a), Ala. Code 1975.

Based on the explicit language of § 6-10-6.1, and based on the arguments presented to the circuit court and to this court, we must conclude that the circuit court erred in dismissing the writ of garnishment. Accordingly, the judgment of the circuit court is reversed. The cause is remanded to the circuit court for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      " 'Although the Alabama Rules of Civil Procedure do not talk of "motion[s] to reconsider," [the appellate courts have] consistently treated them as [Rule] 59(e) motions "to alter, amend, or vacate the judgment" when such motions have been made pursuant to the guidelines for post-trial motions as set out in Rule 59 [, Ala. R. Civ. P.]' McAlister v. Deatherage, 523 So.2d 387, 389 n. 1 (Ala. 1988)."
      Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549 (Ala. 2003).

      See note 1, supra.


author: THOMAS, Judge.

text:
    Joel NEWMAN and Brenda Newman v. SKYPARK PROPERTIES, LLC
    2161084
    Court of Civil Appeals of Alabama.
    June 15, 2018
    Rodney B. Slusher, Florence, for appellants.
    Jeffrey B. Austin, Florence, for appellee.
   THOMAS, Judge.

Joel Newman and Brenda Newman appeal from a judgment entered by the Lauderdale Circuit Court ("the trial court") in favor of Skypark Properties, LLC ("Skypark"). We affirm the judgment in part, reverse it in part, and remand this cause for further proceedings consistent with this opinion.

Background

Skypark and the Newmans own adjacent parcels of real estate; the Newmans own the eastern parcel, and Skypark owns the western parcel. A public road, Skypark Drive, runs parallel to the southern borders of the parties' parcels. A strip of land that is described in the record as a "public right-of-way" ("the public right-of-way") is situated between the southern borders of the parties' parcels and Skypark Drive.

In 2010, Skypark initiated an action ("the 2010 action") against the Newmans alleging that they had constructed certain improvements on their parcel that had encroached on its parcel; Skypark sought injunctive relief. In response, the Newmans alleged that they had adversely possessed a portion of Skypark's parcel. On May 24, 2011, the trial court entered a judgment in favor of the Newmans and attached to its judgment a September 8, 2010, survey ("the September 2010 survey") depicting the portion of Skypark's parcel that the Newmans had adversely possessed, as demarcated by a specified "possession line." The September 2010 survey had been performed by White, Lynn, Collins & Associates, Inc. ("WLC"), and was signed by Rick Collins. Although it did not specifically reference the public right-of-way, the trial court's judgment also determined that, in addition to their own parcel and the portion of Skypark's parcel that they had adversely possessed, the Newmans "own[ed] and possess[ed]" a roughly 325-square-foot portion of real property, the description of which was included in the judgment and, as is discussed later in this opinion, corresponds with the description of a portion of the public right-of-way that is southwardly adjacent to the Newmans' parcel. The trial court's judgment also specified that the Newmans' interest in the portion of the public right-of-way that they "own[ed] and possess[ed]" was "subject to any easements of record or easements existing on site."

Among other things, the trial court specifically found:

"In this case, there was sufficient evidence establishing the [Newmans'] actual possession of the disputed area for the required length of time. Among other things, there was testimony and photographs of landscaping, clearing, the cutting and removal of trees, and general maintenance by the [Newmans] throughout the disputed strip. In addition, there was evidence of the construction of a driveway, steps, concrete pad, the installation of a utility building in the disputed area in 1989 and 1990 as well as the construction of a portion of a two-story garage with a bath and recreational room sometime thereafter."

In October 2014, Skypark initiated a second action against the Newmans alleging that they had encroached upon its parcel beyond the new boundary line established in the 2010 action by constructing a fence and by removing "brush, debris, and trees." In its verified complaint, Skypark asserted claims of trespass, the tort of outrage, and negligence, the latter of which related to the Newmans' installation of the fence. Skypark sought compensatory damages, punitive damages, attorney fees, and costs and asked the trial court to order the Newmans to move the fence to the "possession line" established in the 2010 action.

The Newmans answered Skypark's complaint, asserting various defenses and a counterclaim under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala. Code 1975 ("the ALAA"). Among the defenses set out in their answer was an assertion that Skypark's claims were barred by the doctrine of res judicata, claim preclusion, "and/or" issue preclusion. Skypark filed a reply to the Newmans' counterclaim.

In April 2015, Skypark filed a "motion for emergency relief" alleging that the Newmans had begun constructing a concrete walkway that further encroached upon its parcel beyond the fence that they had already allegedly constructed, and on May 4, 2015, the trial court conducted an evidentiary hearing regarding Skypark's motion; a transcript of the hearing is in the record.

At the hearing, Kelly Allen briefly testified. Allen said that he owned Skypark with his brother and his sister. Allen also testified that the parties' parcels had originally been platted out as part of a subdivision.

Skypark also called as a witness Ronny Wiggington, who is a land surveyor employed by Price and Ryder Engineering. Wiggington testified that he had been hired by Allen "to locate the corners where the judicial line had been set [in the 2010 action] ...." Wiggington testified extensively regarding the procedures he had used to determine the location of what, he said, is the boundary line between the parties' parcels. The overall takeaway from Wiggington's testimony, however, was that the Newmans had constructed a fence and other improvements that encroached upon Skypark's parcel.

When, during cross-examination, the Newmans' attorney presented Wiggington with the trial court's judgment in the 2010 action and questioned him regarding the property description set out therein, Wiggington said that the description referred to only real property that was "out in the right-of-way of the road." He elaborated: "[T]hat description only covers a portion of the deeded part of the settlement line, settlement area.... [F]rom the right-of-way to the edge of the pavement." Wiggington also testified regarding a particular concrete pad that, he said, had been constructed in the public right-of-way.

Brenda Newman also testified. She said that the Newmans had lived in the house located on their parcel for 17 years. Regarding the concrete pad noted above, she said that it had been in the same location since the Newmans had lived on their parcel. During cross-examination by Skypark's attorney, Brenda said that, since the 2010 action, the Newmans had been making efforts to "improve" their parcel and that, as part of that process, the concrete pad had been "resurfaced"; she said the "length" of the concrete pad had not changed. Brenda testified that the concrete pad abutted Skypark Drive.

Near the conclusion of the hearing, the trial-court judge stated, in relevant part:

"I'm granting the motion for emergency relief. And one thing that worked to Mr. Newman's advantage last time was my desire not to create waste, you know, he had built things that encroached, and he was awarded certain property by virtue of adverse possession because somebody allowed it to get built, et cetera, correct? I mean, I'm going back five years when we tried that but that was ....
"....
"That was the testimony....
"....
"... [I]f it ultimately concludes that that fence after all the parties have been through, I've been through, orders, prior stuff, if that fence is an inch over the line I'm going to have it removed.
"....
"What's over the line will be removed.
"....
"Nothing more, nothing less. And it appears to me from the survey and the maps that there are portions of it that are over the line so, I mean, either you're going to have to rescue that situation or I'm going to have that section of the fence removed and the footing that's already out there and other stuff. So I'm just signaling to you now but I want to be right, you know? And Collins went out there. [WLC is] a respected surveying firm like Price Ryder is and Mr. Wiggington is, I mean, a respected firm. But if Mr. Collins testifies that that pin-that that's his pin, then that fence is over the line. I mean, it's just that simple.
"....
"I'm not interested in re-staking it. I want to know if that's his pin, is that where he placed the pin? If he put that pin right there, then that fence is over the line."

The trial court entered an order on May 7, 2015, that, among other things, required the Newmans to stop all construction near the disputed boundary line and ordered that the boundary line between the parties' parcels be verified by WLC.

On May 26, 2015, Skypark amended its complaint to include claims of conversion and nuisance, which were respectively based on, among other things, allegations that the Newmans had unlawfully cut down a tree and that the Newmans had "allowed or caused construction workers to discard construction debris onto [Skypark]'s property." The Newmans answered Skypark's amended complaint and later amended their answer. On March 25, 2016, Skypark filed a motion in which it also requested an award of attorney fees under the ALAA.

The trial court conducted another hearing on July 26, 2016, at which Rick Collins testified. Collins first testified regarding the September 2010 survey, which had been attached to the trial court's judgment in the 2010 action to demonstrate the new boundary line between the parties' parcels. The following exchange occurred between Skypark's attorney and Collins during direct examination:

"Q. Do you remember back before [Joel Newman] made some improvement[s] to his property, you were called out to do a survey, right?
"A. Well the first thing we ever did, we marked the west boundary line of [the Newmans'] property.
"Q. And when you marked the west boundary line did you discover that there was some encroachments past the western boundary line?
"A. Yes.
"Q. And as a result of that did you eventually at [Joel]'s direction draw and mark what he described and what showed up on your surveys-the previous surveys is a possession line as pointed out by [Joel]?
"A. We did but that exact-they needed a plot plan for the City Building Department and [the person] in charge of the building department asked us to do that and show a possession line because we knew all along that that was not the property line, yes.
"Q. Because [Joel] tried to permit it, it showed it over on a different lot than the one he owned, right?
"A. That's correct.
"Q. And when you identified that possession line on those previous surveys did you physically put any pins to mark that line?
"A. No, not on the plot plan.
"Q. Sometime later obviously you were asked to go back out and re-establish that boundary line which was identified on your earlier surveys as the possession line as pointed out by [Joel], in other words, what he was claiming he owned?
"A. I was asked by the Court.
"Q. All right. Before that was that line ever established or any pins put in the ground out there?
"A. Not by my firm."

A July 22, 2011, survey ("the July 2011 survey") that had been performed by WLC was admitted as evidence. Collins testified that the trial court had ordered or requested that WLC set iron pins designating the new boundary line between the parties' parcels and that Collins had done so on July 22, 2011. Collins testified that the July 2011 survey depicted the locations of the iron pins that WLC had set. He said that WLC had placed three pins in 2011 and that one pin was already existing on the northern portion of the boundary line.

Collins then testified regarding his inspection of the properties that he had undertaken in accordance with the trial court's May 7, 2015, order. A May 26, 2015, survey ("the May 2015 survey") was admitted as evidence. Collins testified that, when representatives of WLC inspected the boundary line in May 2015, one of the pins that WLC had placed in July 2011 was missing; he said: "Originally it was an iron pin. It was not there at this time because some construction had tore [it] down." WLC replaced the missing pin with a "PK nail and shiner." He described that as "a nail disc with [his] number stamped on it." Collins testified that concrete had been poured over the original location of the missing pin.

Based on the location of the pins that WLC had set in July 2011, Collins testified that several improvements from the Newmans' parcel had encroached upon Skypark's parcel. Specifically, he said that there were portions of concrete steps and portions of metal forms that the Newmans appeared to be planning to use for pouring a concrete sidewalk that crossed the boundary line. He also said that part of an air-conditioning unit that served the Newmans' garage and an edge of concrete supporting the garage crossed the boundary line. Finally, Collins testified that a portion of a wrought-iron fence that the Newmans had constructed crossed the boundary line.

Collins noted that metal forms constructed west of the boundary line and onto Skypark's parcel continued past the southern borders of the parties' parcels and abutted Skypark Drive. He explained: "Of course Skypark['s property] stops at the right-of-way[,] but we show it out to the edge of that." Collins testified that, to his knowledge, a private property owner cannot adversely possess a public right-of-way until after it has been vacated by the relevant governmental entity. Collins testified that he had discovered no such intent to vacate the public right-of-way in his research regarding the boundary line between the parties' parcels.

Collins said that, at some point, WLC had created a legal description of a portion of the public right-of-way. That area is depicted on the May 2015 survey. In essence, the May 2015 survey depicts, in addition to the parties' separate parcels, a quadrilateral section of the public right-of-way, the eastern border of which is an extension of the original boundary line between the parcels, the western border of which is connected to the new boundary line that was established in the 2010 action, the southern border of which abuts Skypark Drive, and the northern border of which is the southern border of the portion of Skypark's original parcel that the Newmans acquired through adverse possession in the 2010 action. According to the May 2015 survey, a concrete pad had been constructed abutting Skypark Drive that was inside the public right-of-way but outside the southwest corner of the portion of the public right-of-way set out in the legal description.

The May 2015 survey also contains a box in the upper left-hand corner. Collins testified that the box shows an enlarged depiction of the areas where encroachments onto Skypark's parcel existed, which, he said, included an approximately four-foot length of wrought-iron fence. Although improvements or encroachments into the public right-of-way are visible on the May 2015 survey, the enlargement does not focus on improvements or encroachments into the public right-of-way, i.e., south of Skypark's parcel, but Collins testified that the wrought-iron fence extended roughly 20 additional feet toward the south, terminating at a concrete pad abutting Skypark Drive. That 20-foot length of fence, Collins said, was situated to the west of the western boundary of the portion of the public right-of-way described above.

During cross-examination, the Newmans' attorney presented Collins with the actual legal description of the portion of the public right-of-way noted above, which was attached to a survey that had been completed by WLC on May 3, 2011 ("the May 2011 survey"), i.e., before entry of the trial court's judgment in the 2010 action on May 24, 2011. The legal description was entitled: "property containing wood steps & concrete pad installed by [Joel Newman] inside platted right of way." When presented with a copy of the trial court's judgment in the 2010 action, Collins testified that the legal description of the roughly 325-square-foot portion of real property that the trial court determined the Newmans "own[ed] and possess[ed]" matched the legal description of the portion of the public right-of-way that had been attached to the May 2011 survey.

Regarding the apparent "discrepancy," as the Newmans' attorney put it, between the portion of the public right-of-way referenced in the May 2011 survey and its attached description and the purportedly same portion of the public right-of-way depicted on the May 2015 survey, i.e., that the former included the concrete pad abutting Skypark Drive and the latter excluded it, Collins testified: "I'm not sure that's the same concrete pad." The Newmans' attorney then asked Collins to assume that it was the same concrete pad, and Collins insisted that no discrepancy existed regarding the relevant boundary lines; he said that the concrete pad could have been inaccurately drawn or that its dimensions may have been incorrect. When presented again with a copy of the September 2010 survey and asked by Skypark's attorney why WLC had not depicted the Newmans' "possession line" as continuing southwardly past the southern border of what was then Skypark's parcel, Collins testified: "Because that's the right-of-way of the road."

Skypark also called as a witness Eric Hill, a county engineer who was employed by Lauderdale County. Hill testified that the county possessed the public right-of-way that abutted the southern border of the parties' parcels. He said that the county maintained the public right-of-way and that he had received no notice that the county's interest in the public right-of-way had been vacated. Had that occurred, Hill said, he would have been notified and the county would have stopped maintaining it. Hill said that, to his knowledge, a private party could not adversely possess a public right-of-way unless it had been abandoned by the county.

Allen testified again. He said that the Newmans had cut "a tree ... down on [Skypark's] property." Allen testified that he did not know the type or value of the tree. He said that the Newmans had constructed the wrought-iron fence and had made various improvements to their parcel since the 2010 action, including, among other things, changing the concrete pad abutting Skypark Drive; he said that it was "larger .... [l]ength wise"-specifically, he said, extending further west into the public right-of-way. Allen said that the concrete pad had extended further than the trial court had allowed in the 2010 action.

Allen testified that Skypark had spent approximately $8,000 on attorney fees while litigating this action. He admitted that he had not witnessed the Newmans throwing debris onto Skypark's parcel; but, he said, the construction workers that the Newmans had hired had done so. Allen did not provide an estimate regarding the economic damage caused by the debris. Allen testified that he and Skypark's other owners had not discussed the economic damage caused by the Newmans' alleged encroachments, and that he could not estimate that damage, because their objective was removal of the encroachments, as opposed to obtaining money.

After Skypark rested its case-in-chief, the Newmans' attorney filed in open court a written motion for a judgment on partial findings under Rule 52, Ala. R. Civ. P., based on the doctrine of res judicata and, he said, Skypark's failure to present adequate evidence regarding damages. The trial-court judge handwrote the word "order" at the top of the right-hand margin of the Newmans' motion and wrote the word "denied" next to two paragraphs of the Newmans' motion; he also wrote the word "granted" next to the paragraph of the Newmans' motion that asserted: "Skypark has failed to produce any evidence that it, as a limited liability company, is capable of suffering injury for mental and emotional distress"-a point with which Skypark's attorney orally agreed. Regarding the other damages alleged by Skypark, the trial-court judge orally stated:

"I disagree with regards to the trespass or nuisance or whatever the claims or the vehicle being used to address the tree being cut, and I'm not saying I'm ruling one way or another, I'm allowing that thus far, you know, the trash and the trespass, the removal of the tree, that sort of thing."

Brenda Newman also testified again. She said that, when the Newmans began construction on the wrought-iron fence, they reviewed a survey, although she could not recall which one, to verify that the fence would not encroach onto Skypark's parcel. They did so, she said, by referring to the concrete pad that abutted Skypark Drive and by constructing the fence to the east of the edge of the concrete pad. The Newmans, Brenda said, had "always" viewed the boundary line between the parties' parcels as coinciding with the edge of the concrete pad.

She testified that, although the concrete pad had not been enlarged, "somebody that was pouring concrete did pour a big clump of concrete up there. It does extend-it may be that far[,] but you can tell it's just clumped concrete. It's not the pad. It's very obvious." Regarding individual items that may have crossed the boundary line between the parties' parcels, Brenda said that she had dropped things like potted plants or bags of dirt that would then roll from the Newmans' parcel onto Skypark's parcel because of the steep terrain. She said that she would not retrieve such items because she did not want to be arrested for trespassing.

The trial did not conclude until many months later, specifically on May 23, 2017, at which time the Newmans called Corey Lowery to testify. In relevant part, Lowery testified that he had performed lawn maintenance for the Newmans since 2004. He said that, in the process of maintaining the "property line," he had cut a sapling because "[i]t was growing up and hitting [the Newmans'] garage." Lowery said that Joel Newman had instructed him to cut the tree down. Lowery said that the concrete pad had not been expanded.

The Newmans also called David Taschner to testify. Taschner testified that he had been responsible for installing the wrought-iron fence on the Newmans' parcel in 2013 and that he had been hired to construct a sidewalk next to the fence roughly one year later. He said that the Newmans had told him that the boundary line of their parcel coincided with the edge of the concrete pad, that he had reviewed the September 2010 survey and possibly a survey that had been conducted in 2011, and that he thought that the fence had been installed well within the Newmans' parcel.

On June 30, 2017, the trial court entered a judgment that provides, in its entirety:

"This case came before the Court on [Skypark]'s petition for injunctive relief, negligence, outrage, and trespass. The Court heard testimony ore tenus. Based on the evidence and testimony presented, the Court finds [that Skypark's] petition for injunctive relief is due to be GRANTED. The [Newmans] are ordered to remove any encroachments identified by the [May 2015] survey .... The [Newmans] are ordered to remove the portion of the fence encroaching onto [Skypark]'s property from the point the fence begins to encroach on [Skypark]'s property to the end of the fence nearest Skypark Drive shown by the [May 2015] survey .... All portions of the fence and all other encroachments shown on the [May 2015] survey ... shall be removed within thirty (30) days of date of this order. The [Newmans] are enjoined from erecting any further structures of any kind beyond the boundary line established in the [May 2015] survey ....
"The Court finds [that] the [Newmans] have trespassed or instructed others to trespass onto [Skypark]'s property.
"The Court finds [that] the [Newmans] have removed or caused to be removed a tree and other growth from [Skypark]'s property intentionally and deliberately, in spite of known boundary line markers, establishing [that] the [Newmans] were trespassing and removing items from [Skypark]'s property and/or causing or allowing construction debris to be discarded onto [Skypark]'s property.
"The Court finds [that] the [Newmans] have caused water runoff to be directed onto [Skypark]'s property and caused damage to [Skypark]'s property.
"The Court awards [Skypark] damages against the [Newmans] in the amount of $15,000.00 upon which due execution may issue."

The trial court attached to its judgment a copy of the May 2015 survey and the enlargement depicting the encroachments onto Skypark's parcel.

On July 28, 2017, the Newmans filed a postjudgment motion, arguing, among other things, that each aspect of the trial court's judgment was contrary to the law and the evidence presented, that Skypark's claims were barred by "the doctrine of res judicata or claim preclusion," and that the trial court had erred by denying their "motion for involuntary dismissal." The trial court entered an order on August 7, 2017, denying the Newmans' postjudgment motion. The Newmans filed a notice of appeal to the Alabama Supreme Court on September 14, 2017. The appeal was transferred to this court by our supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

After reviewing the record on appeal, we issued an order asking the parties to submit letter briefs addressing several questions regarding the issue whether any portion of the trial court's judgment in this action or its judgment in the 2010 action were void. In our order, we cited Boles v. Autery, 554 So.2d 959 (Ala. 1989), and Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977). Although the parties submitted letter briefs in response, neither specifically addressed the authority that we had cited.

Analysis

Before turning to the parties' appellate arguments, we first consider the issues outlined in our order requesting letter briefs.

"The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala. 2002). Although no party to this appeal has raised the issue of indispensable parties, the absence of an indispensable party can be raised for the first time on appeal by the appellate court ex mero motu, even if the parties failed to present the issue to the trial court. Id.
"Our supreme court has stated:
" 'Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy....
" '[The supreme court] has also held ... that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined.'
" Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) (citations omitted). See also Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977) (when a trial court is asked to determine property rights of property owners not before the court, the absent property owners are indispensable parties and any judgment entered in the absence of those parties is void)."

Allbritton v. Dawkins, 19 So.3d 241, 243-44 (Ala. Civ. App. 2009).

In Boles, 554 So.2d at 960-61, our supreme court provided the following relevant analysis regarding a dispute between the sellers and the buyers of real property that, among other things, involved the issue whether a road was public or private:

"The sellers argue that, pursuant to Rule 19, [Ala.] R. Civ. P., Autauga County should have been joined as a party to the action for the purpose of determining whether the road was public or private .... To support their argument, the sellers cite Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977). Johnston involved a boundary line dispute between owners of contiguous lots in a subdivision. One of the issues concerned whether Johnston Lane was a public road or a private road, and another issue was the proper location of the lane. The appellants argued that the City of Mobile should have been joined as a party to the action. The Court wrote:
" 'The record does not tell us the precise nature of the title or interest the City of Mobile holds to Johnston Lane.... A city has extensive power to control and regulate the use of its streets as the above authorities show. The City of Mobile has no less interest in the outcome of an action involving the true location of Johnston Lane than any of the property owners in the subdivision.
" 'If, as the record indicates, the City is exercising authority over a strip of land not actually dedicated to use as a public street, then any decree that finds to that effect, expressly or by implication, is void if the City is not a party to this action....'
" 342 So.2d at 760.
"... Present and former county commissioners and commission employees ... testified that the county had maintained the road since the late 1960's.... The Autauga County engineer testified that the county treated the road as a public road.
"A public road may be vacated only with the consent of the governing body in whose jurisdiction the road lies. Ala. Code 1975, §§ 23-4-1, 23-4-20. 'The county commissions of the several counties of this state have general superintendence of the public roads,' § 23-1-80, and they have 'authority in relation to the establishment, change or discontinuance of roads,' § 11-3-10[, Ala. Code 1975 ]. Furthermore, a county may be liable to individuals injured because of its negligence in maintaining its roads. See, Jefferson County v. Sulzby, 468 So.2d 112 (Ala. 1985).
"The trial court's determination of whether the road was public or was private might affect not only the rights of the individual litigants but also the rights of members of the public to use the road, the duty of the county to maintain it, and the liability of the county for failure to maintain it. If the county is not joined as a party, then neither it nor other members of the public are bound by the trial court's ruling. Accordingly, if the county and other persons are not bound, then the status of the road as public or private is subject to being litigated again, and the results of later litigation may be inconsistent with the results of the initial litigation. We note the following as a possible example: Suppose the landowners, over the course of time, allow the road to fall into disrepair, and a school bus carrying children has an accident because of the road's deterioration. Would the county be liable for its failure to maintain the road? Coupled with the other problems discussed, that possibility of contradictory rulings about the status of the road as public or private is a sufficient reason to require the joinder of Autauga County as a party. See also Johnston, supra. 'The desirability of judicial economy must give way to the orderly administration and demands of justice,' Mead Corp. v. City of Birmingham, 350 So.2d 419 (Ala. 1977)."

The evidence presented in the hearings in this action make clear that the trial court's judgment in the 2010 action determined that the Newmans "own[ed] and possess[ed]" a portion of the public right-of-way. It is also undisputed that the relevant governmental entity, which, the record indicates, is Lauderdale County ("the county"), was not a party in the 2010 action. Although the parties agree in their letter briefs that any portion of a judgment that awards a private landowner a public right-of-way based on the doctrine of adverse possession is void, they argue that the trial court's judgment in the 2010 action is not void because the legal description of the portion of the public right-of-way set out in the judgment specified that the Newmans' interest was "subject to any easements of record or easements existing on site."

We disagree. As in Johnston, 342 So.2d at 760, the record in this case does not reveal the precise nature of the county's interest in the portion of the public right-of-way such that one could assess the effect of the trial court's judgment in the 2010 action on that interest. Moreover, as in Boles, 554 So.2d at 959, evidence was presented in this case regarding the county's duty to maintain the public right-of-way, which raises the considerations noted in the supreme court's analysis regarding the allocation of any future liability. The county was not joined as a party in the 2010 action, and the portion of the trial court's judgment in that action pertaining to the public right-of-way appears to be void. Id.

Of course, the appeal now before us was not taken from the trial court's judgment in the 2010 action. However, much of the evidence presented in this case focused on the Newmans' construction activity inside the public right-of-way, apparently based on their belief that they possessed a property interest therein. The trial court's June 30, 2017, judgment specifically addressed some of that activity, but the record indicates that some encroachments may remain in the public right-of-way.

Despite at least two separate actions litigating whether the Newmans, as private, adjacent landowners, possessed a property interest that would allow them to erect improvements on real property being held in trust for the public's benefit, including the construction of physical barriers, i.e., a wrought-iron fence, the county has not been afforded an opportunity to assert its interest in the public right-of-way in either action. We acknowledge that Hill, a county engineer, offered testimony in this action; however, "[t]hat a witness is present in court and testifies in the proceedings does not necessarily mean that the witness should not be joined as a party." Boles, 554 So.2d at 961 ; see also Allbritton, 19 So.3d at 244. We therefore reverse the portion of the trial court's judgment regarding encroachments related to the public right-of-way and remand this cause to allow joinder of the county as an indispensable party to these proceedings.

See Bradley v. Scott, 238 So.3d 62, 66 (Ala. Civ. App. 2017).

We now address the Newmans' substantive appellate arguments regarding the trial court's judgment insofar as it addresses encroachments related to Skypark's parcel, albeit in a different order than set out in their appellate brief. The Newmans argue that the relief sought by Skypark in this action was barred by the doctrine of res judicata. In response, Skypark asserts: "Because all of the wrongs in the current litigation occurred after the conclusion of the previous litigation, neither res judicata nor issue preclusion applies to the facts of this case."

The Newmans' appellate brief indicates, however, that their argument is not actually directed toward the allegations supporting Skypark's individual claims; rather, the Newmans assert, it is based on their position that the trial court's judgment in this action created a new and different boundary line between the parties' parcels than that established in the 2010 action. In support of their argument, the Newmans cite, among other cases, Hicks v. Jackson County Commission, 990 So.2d 904, 910-11 (Ala. Civ. App. 2008), in which this court noted, in relevant part:

" 'The four essential elements of the doctrine of res judicata are:
" ' "(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions. If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation."
" ' Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998). The doctrine of res judicata applies when a party attempts to relitigate the same cause of action that was previously litigated against the same defendant or attempts to relitigate a different claim not previously litigated but which arises out of the same evidence. Id. at 636-37.'
" In re Estate of Hudson, 887 So.2d 923, 927-28 (Ala. Civ. App. 2004)."

Based on the foregoing, the Newmans assert:

"It is evident that evidence as to the location of the boundary line between the Skypark property and the Newman property is required in order to sustain [Skypark's] complaint in this case just like the fixing of the location of the boundary line was required in [the] 2010 [action]."

We disagree. The evidence presented in the 2010 action is not contained in the record, but the trial court summarized the parties' allegations and the relevant evidence in its judgment in the 2010 action, which is in the record. Although the nature of the injunctive relief sought by Skypark in this action is the same as that sought in the 2010 action, i.e., that the Newmans' encroachments be removed, the evidence required to establish that encroachments existed is different. To support its allegations in the 2010 action, Skypark was required to present evidence specifying the location of the original boundary line between the parties' parcels and demonstrate that the Newmans had constructed encroachments beyond that boundary line. To support their allegations regarding adverse possession, the Newmans were required to establish a series of well-settled elements in the 2010 action. See Buckner v. Hosch, 987 So.2d 1149, 1151-52 (Ala. 2007) (summarizing the law regarding claims of adverse possession between coterminous landowners).

To support its allegations in this action, Skypark was required to present evidence specifying the location of the new boundary line established by the trial court's judgment in the 2010 action, without reference to the doctrine of adverse possession or any alternative theory that would have further modified the boundary line between the parties' parcels. In other words, Skypark did not seek to change the boundary line established in the 2010 action by arguing that the Newmans had not actually adversely possessed the relevant real property or by relitigating issues that were decided in the 2010 action; instead, it sought to establish only the physical location of the new boundary line and to present evidence regarding its allegations of encroachment.

Thus, the Newmans' argument based on the doctrine of res judicata is actually a sufficiency-of-the-evidence argument in disguise, as is demonstrated by this statement from their appellate brief, which logically follows from their actual premise:

"[The b]oundary pins located and referred to in the [May] 2015 survey ordered by the Court were not placed on the ... boundary line [established in the 2010 action], were placed there after 2010, don't mark the boundary line as determined by the [trial] court in its ... judgment [entered in the 2010 action,] and th[at] judgment bars Skypark's current action."

The record, however, reveals that, in its May 7, 2015, order, the trial court instructed WLC to verify the boundary line established in the 2010 action-not an alternative boundary line. In accordance with that instruction, Collins testified, WLC had located certain pins that it had placed in 2011 that physically demarcated the boundary line established in the 2010 action. Although Collins said that one of the pins had been removed and had had to be replaced, his testimony indicated that the "PK nail and shiner" used to replace the missing pin were placed in the same location as the missing pin. Based on WLC's work, Collins determined which of the Newmans' improvements encroached past the boundary line established in the 2010 action, and those encroachments were depicted on the May 2015 survey.

The Newmans essentially argue that the trial court should have used different evidence to establish the boundary line, such as the edge of the concrete pad and "[t]he edge of the trees and vegetation." As our supreme court explained in Helms v. Powell, 514 So.2d 1025, 1025 (Ala. 1987), however:

"Our standard of review in boundary line disputes that are tried ore tenus is clear: 'When evidence is presented ore tenus in a boundary line dispute, the trial court's decree establishing the boundary is presumed to be correct and need only be supported by credible evidence.' Hodge v. Snider, 495 So.2d 539, 540 (Ala. 1986). 'A judgment of the trial court establishing a boundary line between coterminous landowners need not be supported by a great preponderance of the evidence; the judgment should be affirmed if, under any reasonable aspect of the case, the decree is supported by credible evidence.' Graham v. McKinney, 445 So.2d 892, 894 (Ala. 1984). Where the facts are disputed in boundary line cases, we uphold the trial court's findings unless they are palpably erroneous or manifestly unjust to do so. Duke v. Presnall, 447 So.2d 143 (Ala. 1983)."

The trial court's judgment in this action reveals no attempt to establish a new boundary line between the parties' parcels. The trial court's judgment was instead based on the evidence presented regarding the physical location of the boundary line established in the 2010 action. The trial court's findings in that regard are presumed to be correct, and we see no reason to disturb them on appeal.

Finally, we consider the Newmans' argument that the trial court's award of $15,000 to Skypark as damages was unsupported by the evidence presented. One of the cases that the Newmans cite in support of their argument is Johnson v. Harrison, 404 So.2d 337, 340 (Ala. 1981), in which our supreme court explained, in relevant part:

"The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965). The award of damages cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered. Great American Insurance Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488 (1964)."

The Newmans point to Allen's testimony, in which he failed to estimate the economic damage caused by the Newmans' construction activity and specifically said that he and the other owners of Skypark were seeking only the removal of any encroachments instead of money damages caused by them.

In response, Skypark cites Allen's testimony regarding the $8,000 that Skypark had spent for attorney fees and the testimony presented regarding the Newmans' various trespasses, encroachments, and the removal of the tree that had been on Skypark's parcel. Skypark argues that the trial court's award of $15,000 could have been based, in part, on its claim under the ALAA. We are unpersuaded by that argument. In Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala. 1993), our supreme court held that, when making an award of attorney fees under the ALAA, trial courts are required to, among other things, set out the grounds for the award in the record. The trial court's judgment in this case does not do so, and, therefore, we do not view its award of damages to Skypark as an award of attorney fees under the ALAA. Insofar as the trial court's award of damages was based on the other conduct noted by Skypark, we agree with the Newmans that no evidence was presented regarding the amount of damages. See Johnson, 404 So.2d at 340.

We note, however, that the trial court specifically found that the Newmans had committed trespass and that sufficient evidence was presented to support that finding. "In the absence of actual damage to property resulting from a trespass, the owner of the property is entitled to nominal damages." Johnson v. Martin, 423 So.2d 868, 870 (Ala. Civ. App. 1982) (citing Foust v. Kinney, 202 Ala. 392, 80 So. 474 (1918) ). We therefore reverse the trial court's judgment insofar as it awards $15,000 in damages, and we remand the action for the trial court to enter a nominal award of damages that is consistent with the evidence presented.

In conclusion, we affirm the portion of the trial court's judgment ordering the removal of the Newmans' improvements that encroached onto Skypark's parcel beyond the boundary line established in the 2010 action. We reverse the portions of the trial court's judgment regarding the Newmans' construction activity in the public right-of-way and its award of damages to Skypark, and we remand this cause for the county to be joined as an indispensable party to these proceedings and for the trial court to enter a damages award on Skypark's trespass claim that is consistent with the evidence presented.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      At some point, Skypark also sought criminal charges in the Lauderdale District Court against Joel Newman for his alleged trespass upon Skypark's parcel and his alleged illegal cutting of timber on Skypark's parcel. The record contains several filings and orders from the criminal action, although the exact disposition of those charges is not clear.

      As already noted, the record indicates that the trial court's judgment in the 2010 action was entered on May 24, 2011, and that judgment did not specifically order WLC to place iron pins designating the new boundary line between the parties' parcels. Assuming that the trial court did in fact order that WLC do so, which is far from certain based on other statements in the record, it is unclear when or how the trial court issued such an order, but that directive may have been the result of postjudgment motions filed by the parties in the 2010 action or perhaps even an entirely separate action that is not mentioned in the record.

      "An appeal ordinarily will lie only from a final judgment-i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved." Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). In its complaint, Skypark included a request for injunctive relief and claims of negligence, the tort of outrage, and trespass. In its amended complaint, Skypark included claims of conversion and nuisance. The trial court granted the Newmans' Rule 52, Ala. R. Civ. P., motion regarding Skypark's tort-of-outrage claim. Skypark's request for injunctive relief is disposed of in the first paragraph of the trial court's judgment. The trial court's judgment also finds that the Newmans unlawfully installed portions of their fence on Skypark's parcel and awards damages, which was the basis of Skypark's negligence claim. Although it does not specifically mention Skypark's conversion and nuisance claims, the third paragraph of the trial court's judgment resolves the allegations supporting those claims. Finally, although all the parties asserted claims under the ALAA during the pendency of this action, the trial court's judgment, as is discussed in more detail later in this opinion, did not resolve those claims and did not specifically reserve jurisdiction to do so. Those claims were therefore implicitly denied. See Klinger v. Ros, 33 So.3d 1258, 1260 (Ala. Civ. App. 2009) ("Our supreme court has held that, when a trial court enters an otherwise final judgment on the merits of a case but fails to address a pending ALAA claim or to reserve jurisdiction to later consider that claim, the ALAA claim is implicitly denied by the judgment on the merits."). The trial court's judgment was therefore final and appealable.