Rel: February 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

1210383

_________________________

Georgia Lay 

v. 

Todd Destafino

Appeal from Shelby Circuit Court

(CV-19-900158)

PER CURIAM.

This case arises out of a protracted feud between two ex-relatives. 

In short, Todd Destafino had a longstanding business relationship with 
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his (now former) mother-in-law, Georgia Lay, that soured after Destafino 

and Lay's daughter divorced. In the aftermath of the divorce, Lay began 

interfering with Destafino's property and business interests. Destafino 

eventually sued, claiming that Lay had trespassed on his property, 

interfered with his business operations, created a nuisance, and 

improperly failed to acknowledge his ownership interest in a company 

that he and Lay had jointly formed. After a bench trial, the Shelby 

Circuit Court entered judgment in Destafino's favor, awarding him 

$167,369.03. Lay appealed. For the reasons explained below, we affirm

the trial court's judgment.

Facts and Procedural History

During the time frame relevant to this case, Destafino and Lay were 

both small-business owners. Destafino had his own construction 

company, while Lay owned a medical-supply sales business. Destafino 

was married to Lay's daughter, Auderia Destafino, making him Lay's 

son-in-law. 

In 2012, Destafino began renting space in a building located on Old 

Highway 280 in Chelsea ("the property"), which he used to operate his 

construction company. Not long after his lease began, Destafino allowed 
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Lay to move her business into a portion of his rented space. Destafino 

also completed extensive renovations -- which took three months and cost 

over $50,000 -- to improve the portion of the property that Lay used for 

her business. 

When Destafino's landlord discovered that Destafino was allowing 

an unauthorized subtenant to use the property, he served Destafino with 

a notice of eviction. But instead of moving out, Destafino and Lay decided 

to purchase the property from the landlord. To facilitate their purchase, 

they formed a company called BDSC, Inc. Lay signed BDSC's

incorporation papers, listed herself as BDSC's registered agent, listed 

both herself and Destafino as the individuals responsible for seeking 

incorporation, and listed both herself and Destafino as BDSC's directors. 

A few days after its formation, BDSC purchased the property from 

Destafino's landlord for $228,000 via a promissory note and a mortgage 

back to the seller. Destafino and Lay each signed a personal guarantee 

of the note and have each made equal, monthly payments on the note

since the purchase. 

Things apparently went smoothly for Destafino and Lay up until 

around 2016, when Destafino and Auderia divorced. Shortly thereafter, 
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Lay and Destafino "start[ed] having problems." Those problems reached 

a boiling point in 2018, when Lay began removing equipment and other 

property from Destafino's portion of the property. Then, in early 2019, 

Lay installed a new lock on Destafino's office and refused to give him a

key, effectively preventing him from accessing his office. 

Shortly after the lockout, Destafino brought this suit against Lay, 

claiming that she had trespassed on his property, interfered with his 

business operations, and created a nuisance. But Destafino's suit did

little to deter Lay's behavior. Just a few days after Destafino filed his 

complaint, Lay removed him from the utility and bank accounts 

associated with BDSC and the property. Destafino promptly filed a 

motion for emergency relief, which the trial court granted. The trial 

court's order enjoined Lay from disposing of any of Destafino's things and 

from interfering with his access to the property, and it ordered her to 

reinstate Destafino on the accounts associated with BDSC and the 

property. 

Despite the trial court's order, Lay continued interfering with 

Destafino's equipment and his ability to access the property. For 

example, Lay took some wooden doors belonging to Destafino and used 
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them to construct a chicken coop; took additional doors and used them as 

a stand for her lawnmower; removed one of Destafino's toolboxes; used 

Destafino's metal duct work as a burn barrel; obstructed the sign for 

Destafino's business; prevented Destafino's vehicles from entering and 

exiting the premises; and dumped so much unauthorized trash into

Destafino's dumpsters that he had to make (and pay for) separate 

disposal arrangements. 

Destafino eventually amended his complaint to add claims related 

to ownership of the property and the management of BDSC. In 

particular, the amended complaint alleged that BDSC did not have a 

regular corporate structure and claimed that Lay had fraudulently 

misrepresented Destafino's relationship with, and financial obligations 

to, the corporation. The amended complaint requested declaratory relief, 

a sale for division of the property, an award of attorney fees, and any 

"other, further[,] and different relief to which [Destafino] may be 

entitled." 

The case went to a bench trial in the spring of 2021. In support of

the claims set out in his amended complaint, Destafino argued during the 

trial that he was entitled to an equal ownership interest in BDSC and its 
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assets because he had provided half the funds that the company used to 

purchase and manage the property. He pointed out that he had paid at 

least half of the taxes, utility bills, and payments on the note relating to 

the property. And while Destafino acknowledged that he had contributed 

only $18,600 in cash toward the initial payment on the property (whereas 

Lay had contributed $41,842.56), he testified that he and Lay had agreed

-- as a condition to their joint purchase of the property -- that Destafino

would be entitled to a credit for prepurchase rent payments and for the 

value of the prepurchase renovations that he had performed on Lay's 

portion of the property. 

After the trial ended, the trial court entered a final judgment

finding in Destafino's favor on all of his claims. The trial court's 

judgment further provided:

"Accordingly, it is ORDERED and ADJUDGED as follows: 

"....

"3. ... [Lay,] as the sole shareholder of BDSC Inc., shall 

immediately make reimbursement to [Destafino] for the 

following:

"a. Eighteen Thousand Six Hundred and no/100

dollars ($18,600.00) for the initial payment for the

property, made at closing;
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"b. Sixty Five Thousand Eight Hundred Eight and

15/100 dollars ($65,808.15) for the restoration

remodel of [Lay's portion of the property];

"c. Seven Thousand Nine Hundred Sixty and 

88/100 dollars ($7,960.88) for payment of 1⁄2 

property taxes from 2014-2020."

"4. The Court further FINDS that [Destafino] is due to

be compensated by [Lay] in the amount of Seventy Five

Thousand and no/100 dollars ($75,000.00), for 

compensatory and punitive damages in this matter, 

including the necessity of [Destafino] to hire legal 

counsel and file suit. Said damages were caused by 

[Lay's] knowing and willful trespass on to [Destafino's]

business area, the unauthorized use of [Destafino's]

business materials and the encroaching on [Destafino's]

business operations; together with [Lay's] knowing and 

willful interference in [Destafino's] continuing business 

operations, and [Lay's] knowing and willful nuisance, 

annoyance and interference with the use of the property 

by [Destafino] in the daily ongoing operation of his

business.

"5. The total judgment amount in favor of [Destafino],

against [Lay], in this matter, is One Hundred Sixty

Seven Thousand Three Hundred Sixty Nine and 03/100

Dollars ($167,369.03) ...."

Lay timely appealed. 

Standard of Review

Because the trial court conducted a bench trial at which oral 

testimony was given, the ore tenus rule governs our review. That rule

provides that, when a trial court hears ore tenus testimony, its findings 
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on disputed facts are presumed correct and its judgment based on those 

findings will not be reversed unless clearly erroneous and against the 

great weight of the evidence. Sadler v. Players Recreation Grp., LLC, 

[Ms. 1210116, Aug. 26, 2022] ___ So. 3d ___ (Ala. 2022). The ore tenus 

standard of review applies to both the trial court's findings of liability 

and its assessment of damages. Radetic v. Murphy, 71 So. 3d 642, 648 

(Ala. 2011). Though we must presume that the trial court's findings of 

fact are correct, we review its legal conclusions and application of law to 

facts de novo. Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).

Discussion

Lay's appeal raises numerous challenges to the trial court's 

judgment. Though she frames her arguments as challenging only the 

trial court's damages award -- rather than its underlying determination

of liability -- some of her arguments implicate substantive disputes about 

the scope of liability. We address Lay's arguments in turn and, for the 

reasons explained below, conclude that each of them fails. 
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A. Lay Failed to Preserve Her Argument That the Trial Court Erred 

by Not Itemizing Damages

We first consider Lay's argument that the trial court failed to fully 

itemize its damages award in accordance with state law. As relevant 

here, Alabama law requires:

"In any civil action based upon tort ..., the damages 

assessed by the factfinder shall be itemized as follows:

"(1) Past damages.

"(2) Future damages.

"(3) Punitive damages.

"... Where the court determines that any one or more of the 

above categories is not recoverable in the action, those 

categories shall be omitted from the itemization."

§ 6-11-1, Ala. Code 1975. Lay argues that part "4" of the trial court's 

damages award violated this requirement by lumping together 

"compensatory and punitive damages" into a single $75,000 sum. 

Though Destafino does not contest the applicability of § 6-11-1, he

argues that Lay waived her ability to appeal the trial court's error by not 

bringing that error "to the attention of the [t]rial [c]ourt" in the first 

instance. Destafino's brief at 24-25. In support of this argument, 

Destafino relies on Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 
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38 (Ala. 1990), in which this Court refused to reverse a jury's award of 

damages based on noncompliance with § 6-11-1. This Court explained in 

Green Tree that we will not reverse an award of damages based on an 

itemization error that was not first brought to the attention of the trial 

court. Id. at 46. That holding was in keeping with our general rule that 

appellate courts "cannot consider arguments advanced for the purpose of 

reversing the judgment of a trial court when those arguments were never 

presented to the trial court for consideration or were raised for the first 

time on appeal." State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 

807, 821 (Ala. 2005).

Lay responds by arguing that Green Tree is distinguishable 

because Green Tree, unlike this case, involved a jury trial -- meaning that 

the parties had an opportunity in advance of the verdict to review (and 

object to) a set of instructions and verdict forms telling jurors how to 

classify and compute damages. Lay suggests that since she lacked such 

notice of how the trial court would frame its damages award, she also 

lacked an opportunity to raise her objection to the trial court in the first 

instance and therefore cannot be faulted for failing to object. 
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We disagree. Even though Lay may not have had a prejudgment 

opportunity to object to the trial court's classification of damages, she did

have an opportunity to object after judgment. Namely, she could have 

filed a timely motion to alter, amend, or vacate the judgment under Rule 

59(e), Ala. R. Civ. P. While it is true that postjudgment motions under 

Rule 59(e) are usually elective rather than mandatory, such a motion is

necessary to preserve an objection for appellate review when -- as here --

that motion is the only possible mechanism for bringing the alleged error 

to the trial court's attention. That is true even in the context of a bench 

trial. See Kitchens v. Maye, 623 So. 2d 1082 (Ala. 1993). Accordingly, 

we hold that Lay failed to preserve her § 6-11-1 objection by not giving 

the trial court a chance to correct its alleged error in the first instance. 

B. Lay's Remaining Arguments Lack Merit

Lay raises several other objections to the trial court's judgment, but

-- for the reasons explained below -- each fails. 

First, Lay says that the trial court erred by ordering her to 

reimburse Destafino for the money he spent remodeling her portion of 

the property. She points out that the trial court's award of remodeling 

costs was based on oral testimony, and she argues that the admission of 
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such testimony violates the parol-evidence rule, which "'provides that, 

absent some evidence of fraud, mistake, or illegality, a party to an 

unambiguous written contract cannot offer parol, or extrinsic, evidence 

of prior or contemporaneous oral agreements to change, alter, or 

contradict the terms of the contract.'" Alabama Elec. Coop., Inc. v. 

Bailey's Constr. Co., 950 So. 2d 280, 287 (Ala. 2006) (citation omitted; 

emphasis added). There is an obvious problem with Lay's parol-evidence 

argument: as the preceding quote makes clear, the parol-evidence rule 

applies only to "written contract[s]," not oral contracts, and the 

agreement between Lay and Destafino was oral.1 Accordingly, the bar 

on parol evidence has no application to this case. 

1Lay argues elsewhere that any oral agreement (and any award of 

damages related to it) would have been void under a provision of the 

Alabama Statute of Frauds, which requires any "promise to answer for 

the debt ... of another" to be expressed "in writing." § 8-9-2(3), Ala. Code 

1975. This argument fails because Lay provides no reason to conclude 

that her and Destafino's agreement to purchase property involved a 

promise to assume the debt of another. Lay could not have been 

assuming Destafino's debt, because the credit for renovations was an 

amount owed to Destafino, not an amount owed by him. And Lay could 

not have been assuming the debt of Destafino's prior landlord because, 

by Lay's own admission, the landlord was not obligated to compensate 

Destafino for improvements that Destafino made to the property while 

he was a tenant. 
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Lay fights this conclusion by arguing that the oral agreement was 

later reduced to a written agreement because it was briefly summarized 

in the unsigned minutes to one of BDSC's board meetings.2 Lay's reply 

brief at 4. That argument also fails. Lay does not cite, and we are not 

aware of, any authority holding that an unsigned, after-the-fact written 

summary of an oral agreement displaces the original agreement for 

purposes of the parol-evidence rule. 

Lay also seems to suggest that the trial court lacked authority to 

order her to reimburse Destafino for his remodeling costs because those

costs were not listed in Destafino's original or amended complaints. But 

Lay does not develop this argument or cite any authority related to it. 

This Court has explained, in other circumstances, that trial courts may 

award damages not pleaded in the complaint so long as the evidence 

Lay later theorizes, in her reply brief, that the oral agreement 

violated a different subsection of the Statute of Frauds -- subsection (6), 

which requires the purchase of real estate to be in writing -- but Lay 

failed to preserve this theory by not raising it in her opening brief. See

Sverdrup Tech., Inc. v. Robinson, 36 So. 3d 34, 46-47 (Ala. 2009) ("[T]his 

Court will not consider arguments raised for the first time in a reply 

brief."). 

2Those minutes were signed by Auderia (who described herself as 

BDSC's "secretary") and by one other witness but were not signed by 

either Lay or Destafino.
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justifies such an award and the defendant had fair notice of the claims 

on which the award is based. See, e.g., Robbins v. Sanders, 890 So. 2d 

998, 1009 (Ala. 2004); Roberson v. Ammons, 477 So. 2d 957, 960 (Ala. 

1985); accord Rule 54(c), Ala. R. Civ. P. ("Except as to a party against 

whom a judgment is entered by default, every final judgment shall grant 

the relief to which the party in whose favor it is rendered is entitled, even 

if the party has not demanded such relief in the party's pleadings."). Lay 

does not explain why that logic should not apply here, nor does she argue 

that she lacked fair notice of the claim giving rise to the trial court's 

award. Accordingly, we cannot conclude that the trial court erred. 

Lay next takes issue with the trial court's holding that she 

trespassed on Destafino's portion of the property. She argues that since 

"[y]ou cannot trespass on or interfere with possession of your own 

property," she -- as an owner of BDSC, which in turn owned the property

on which Destafino's office space was located -- cannot have committed 

trespass on Destafino's office space. Lay's brief at 24. Accordingly, she 

argues, the trial court could not have considered trespass in computing 

its damages award. Id. at 23-24. 
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There are multiple problems with this argument. For one thing, it 

overlooks the fact that Lay and BDSC are separate legal entities. See

Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala. 

1994) ("'"The concept that a corporation is a legal entity existing 

separate and apart from its shareholders is well settled in this state." '" 

(citations omitted)). For another, Lay does not cite, and we are not aware 

of, any authority supporting her assertion that a landlord cannot trespass

against her tenant. Typically, it is the right to possession, not ownership, 

that is protected against trespass, and a tenant can have a right to

exclusive possession of property (or a portion of that property) even if he 

does not own it. See Johnson v. Northpointe Apartments, 744 So. 2d 899, 

902 (Ala. 1999) ("'A tenant, having an estate in land, has the general and 

exclusive right of possession during the term. He may exclude third 

persons and, with few exceptions, the landlord as well.'" (citation 

omitted)); Jefferies v. Bush, 608 So. 2d 361, 362 (Ala. 1992) ("Trespass is 

a wrong against the right of possession."); see also Peltier v. Roy, 453 F. 

Supp. 1373, 1375 (D.R.I. 1978) ("The fact that Plaintiff may have had an 

ownership interest in the property does not preclude the possibility that 

he was trespassing. The right to possession, not ownership, is the more 
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dispositive consideration; thus even a landlord may properly be sued in 

trespass by his tenant." (collecting cases)). We therefore reject Lay's 

argument that she was legally incapable of committing trespass. 

Lay next argues that even if she did trespass, the trial court still 

could not consider her trespass in computing its damages award because, 

according to her, Destafino did not prove that Lay's trespass reduced the 

value of his property. Even if Lay is correct in asserting that Destafino 

did not introduce evidence showing diminution in property value, her 

argument fails because it overlooks the trial court's authority to award 

nominal damages. See Martin v. Glass, 84 So. 3d 131, 134 (Ala. Civ. App. 

2011). Moreover, "'[o]nce actual damages, even nominal damages, are 

established'" in a trespass action, "'punitive damages may be awarded if 

it is a proper case to do so.'" Id. (citation omitted). 

The availability of punitive damages brings us to Lay's next 

argument -- that the trial court's award of punitive damages was per se

improper under Alabama law because § 6-11-20, Ala. Code 1975, 

provides, in pertinent part, that "[p]unitive damages may not be awarded 

in any civil action ... other than in a tort action where it is proven by clear 

and convincing evidence that the defendant consciously or deliberately 
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engaged in oppression, fraud, wantonness, or malice with regard to the 

plaintiff." Lay does not make any particularized argument as to why the

award of punitive damages violated § 6-11-20. Instead, she simply recites 

the statutory standard and then asks this Court to "review the [trialcourt] pleadings and the transcript" in their entirety, in search for any 

potential "errors regarding [the trial court's] award of punitive damages." 

Lay's brief at 25. Lay seems to believe that we are obligated to conduct 

such a search because of the de novo standard of review that applies to 

any award of punitive damages. See Pensacola Motor Sales, Inc. v. 

Daphne Auto., LLC, 155 So. 3d 930 (Ala. 2013). 

Again, Lay is mistaken. The de novo standard of review does not 

relieve an appellant of her burden of demonstrating that the trial court 

erred. Under our precedent and the Rules of Appellate Procedure, an 

appellant -- even one seeking de novo review -- must make reasoned and 

particularized arguments in support of reversal. See, e.g., Archer ex rel. 

Archer v. Estate of Archer, 45 So. 3d 1259, 1266 (Ala. 2010) (applying a 

de novo standard of review, yet refusing to entertain an argument

unsupported by specific citations to the record and to authority, 

explaining that "'"'"it is neither our duty nor function to perform all the 
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legal research for an appellant"'"'" (citations omitted)); White Sands 

Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1058 (Ala. 2008) ("Rule 

28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain 

discussions of facts and relevant legal authorities that support the party's 

position. If they do not, the arguments are waived."); accord Rule 28(a), 

Ala. R. App. P. After an appellant has fulfilled that threshold obligation, 

this Court will review the relevant aspects of the trial court's decision de 

novo (that is, without a presumption of correctness). But an appellant 

who has not performed that threshold function has failed at the outset to 

carry her burden of presentation and, accordingly, cannot prevail on 

appeal. Archer, 45 So. 3d at 1266. That is the position Lay is in here. 

She has not made a reasoned argument as to why the trial court lacks 

authority to award punitive damages, so we will not reverse the trial 

court's award. 

Lay's final argument is that the trial court improperly admitted 

certain evidence. In particular, she complains that the trial court should 

not have admitted certain social-media posts by Auderia or testimony 

about "family problems extending from Lay's care of Destafino's 

daughter." Lay's brief at 19-20. But Lay does explain why the admission 
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of this evidence was improper under the applicable rules of evidence or

how that admission prejudiced her. The trial court's final judgment

contains no mention of -- let alone findings related to -- those items of 

evidence. Accordingly, Lay has again failed to demonstrate reversible 

error. 

For all these reasons, we affirm the trial court's judgment. 

AFFIRMED. 

Parker, C.J., and Shaw, Wise, Bryan, Stewart, Mitchell, and Cook, 

JJ., concur. 

Sellers and Mendheim, JJ., concur in the result.