author: PER CURIAM. WOODALL, Justice MOORE, Chief Justice SEE, Justice

text:
    CAVALIER MANUFACTURING, INC. v. James L. CLARKE. Cavalier Manufacturing, Inc. v. Faye W. Wilson. Cedar Ridge Factory Outlet, Inc. v. James L. Clarke. Cedar Ridge Homes, Inc. v. George T. Watkins.
    1011012 to 1011014 and 1011106.
    Supreme Court of Alabama.
    April 25, 2003.

      John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant Cavalier Manufacturing, Inc.
    Winston R. Grow of Brown, Hudgens, P.C., Mobile, for appellants, Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc.
    Joseph C. McCorquodale III of McCor-quodale & McCorquodale, Jackson, for ap-pellees James L. Clarke and Faye W. Wilson.
   PER CURIAM.

This opinion consolidates four appeals: Cavalier Manufacturing v. Clarke, Cavalier Manufacturing v. Wilson, Cedar Ridge Factory Outlet v. Clarke, and Cedar Ridge Homes v. Watkins. Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc. (hereinafter referred to collectively as “Cedar Ridge”), and Cavalier Manufacturing, Inc. (“Cavalier”), all of which are mobile-home dealers or manufacturers and defendants in four actions pending in the Clarke Circuit Court, appeal separately from the trial court’s order in each action compelling arbitration under the terms of retail installment contracts between the mobile-home dealers and the plaintiffs in each case.

We affirm the order of the trial court holding that Cedar Ridge Factory Outlet, a mobile-home dealer, is entitled under the terms of its retail installment contract with James L. Clarke to arbitrate the claims filed against it by Clarke. We affirm the order of the trial court that Cedar Ridge Homes, a mobile-home dealer, is entitled under the terms of its retail installment contract with George T. Watkins to arbitrate the claims filed against it by Watkins. And, finally, we hold that Cavalier, a mobile-home manufacturer, is not a party to the retail installment contracts entered into by Cedar Ridge and Faye W. Wilson and by Cedar Ridge and Clarke; therefore, Cavalier cannot be compelled to arbitrate any claims against it under the terms of the arbitration clauses in the retail installment contracts. Cavalier is entitled to compel arbitration on all claims brought by Clarke and by Wilson, not under the terms of the retail installment contract, but under the terms of the arbitration clause contained in the “Acknowledgement and Agreement” entered into by Cavalier, Cedar Ridge Factory Outlet, and Wilson, and the “Acknowledgement” entered into between Cavalier, Cedar Ridge Factory Outlet, and Clarke. Therefore, we affirm the trial court’s orders as to Cedar Ridge, and we reverse the trial court’s orders as to Cavalier.

Watkins

On July 13, 1999, George T. Watkins bought, for $26,497.75, a mobile home from Cedar Ridge Homes in Thomasville, Alabama. The mobile home was manufactured by Chandeleur Homes, Inc. Watkins financed the purchase through Conseco Finance Corporation-Alabama, formerly Green Tree Financial Corporation-Alabama. At the time of the purchase, Watkins executed both a retail installment sales contract containing an' arbitration clause and an “Agreement for Binding Arbitration.” On November 9, 2000, Watkins sued Chandeleur, Conseco, and Cedar Ridge, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, negligent transportation and installation of the mobile home, and failure of consideration. Chandeleur moved to compel arbitration of any warranty claims pursuant to an arbitration clause contained in the manufactured-home owners manual delivered with the new mobile home. Conseco moved to compel arbitration pursuant to the arbitration clause in the retail installment contract, stating in its motion that it would pay all costs of arbitration. Cedar Ridge moved to compel arbitration pursuant to the “Agreement for Binding Arbitration.”

On November 19, 2001, the trial court granted Cedar Ridge’s motion to compel arbitration. Cedar Ridge moved the court to reconsider its order and identify the agreement under which the parties were to arbitrate their dispute. The trial, court, specifically relying on this Court’s decision in Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala.2001), denied Cedar Ridge’s motion to reconsider and ordered that arbitration be conducted in accordance with the arbitration provision in the retail installment contract. Cedar Ridge appeals from that order.

Clarke

On August 23, 1999, James L. Clarke bought, for $44,887.75, a mobile home from Cedar Ridge Factory Outlet in Jackson, Alabama. The mobile home was manufactured by Cavalier. At the time of the purchase, Clarke and Cedar Ridge executed both a retail installment contract containing an arbitration clause and an “Agreement for Binding Arbitration”; and Clarke, Cedar Ridge, and Cavalier executed an “Acknowledgement and Agreement” that contained an arbitration clause. When the mobile home was delivered, Cavalier provided Clarke with a copy of the limited warranty on the mobile home, which contained . yet another arbitration clause. On June 19, 2001, Clarke sued Cedar Ridge and Cavalier, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, breach of express warranty, negligent design and manufacture, and negligent transportation and installation of the mobile home.

Cavalier moved to dismiss or to stay the proceedings and to compel arbitration under the arbitration clauses in the “Ac-knowledgement and Agreement” and in the limited warranty. Cedar Ridge also moved to dismiss or to stay the proceedings pending arbitration, relying on either the arbitration clause in the “Agreement for Binding Arbitration” or the arbitration clause in the “Acknowledgement and Agreement.” Clarke responded to Cedar Ridge’s motion to compel arbitration, asserting that none of the arbitration agreements complied with the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act. However, Clarke stated that he would consent to arbitrate under the terms of the arbitration clause in the retail installment contract. The trial court, relying specifically on this Court’s holding in Ex parte Palm Harbor, ordered the parties to arbitrate the dispute under paragraphs 14 and 15 of the retail installment contract.

On February 8, 2002, Clarke moved for the appointment of a neutral arbitrator. Cedar Ridge answered Clarke’s motion, asserting that the motion was premature because Cedar Ridge could still appeal the trial court’s arbitration order. Both Cavalier and Cedar Ridge then filed notice of appeal of the trial court’s order compelling arbitration under the terms of the arbitration clause in the retail installment contract.

Wilson

On September 29, 1999, Faye W. Wilson bought, for $56,135.25, a mobile home manufactured by Cavalier and sold by Cedar Ridge Factory Outlet in Jackson, Alabama. At the time of the purchase, Wilson and Cedar Ridge executed both a retail installment contract that contained an arbitration clause and an “Agreement for Binding Arbitration.” Wilson, Cedar Ridge, and Cavalier executed an “Acknowledgement and Agreement.” Cavalier provided Wilson a copy of the limited warranty for the mobile home, which also contained an arbitration clause. On September 13, 2001, Wilson sued Cedar Ridge and Cavalier, asserting claims of negligent and intentional misrepresentation, breach of implied warranty, breach of express warranty, negligent design and manufacture, and negligent transportation and installation of the mobile home.

Cavalier moved to dismiss Wilson’s claims, or, in the alternative, to stay the proceedings and to compel arbitration under the arbitration clauses in the limited warranty and in the “Acknowledgement and Agreement.” Cedar Ridge also moved to dismiss Wilson’s claims or, in the alternative, to stay the proceedings and to compel arbitration under the terms of the “Agreement for Binding Arbitration.” On November 6, 2001, the trial court, believing the parties had agreed to arbitrate their dispute, appointed Claude Neilson as arbitrator. The trial court’s order stated that “[t]he attorney for the plaintiff having indicated to the Court that the attorneys for the plaintiff and the defendants have agreed upon an arbitrator in this cause.” On November 13, 2001, Cavalier moved to amend or vacate the order appointing Neilson as arbitrator, stating that it had not agreed to Neilson’s appointment and that its arbitration agreements with Wilson required arbitration to proceed under the commercial arbitration rules of the American Arbitration Association (“the AAA”). On December 10, 2001, Wilson filed an amended complaint realleging her earlier claims and also alleging an additional breach-of-express-warranty claim. Cavalier moved to dismiss the amended complaint, or, in the alternative, to stay proceedings and to compel arbitration under the arbitration clauses in the “Ac-knowledgement and Agreement” and in the limited warranty.

On January 9, 2002, the trial court, relying specifically on this Court’s holding in Ex parte Palm Harbor, entered an order compelling arbitration under the arbitration clause in the retail installment contract. On January 16, 2002, the trial court ordered Wilson, Cedar Ridge, and Cavalier to arbitrate their dispute before arbitrator Claude Neilson. Cavalier appeals from the trial court’s order compelling arbitration under the terms of the retail installment contract.

Cavalier’s Appeals as to Clarke and Wilson

Cavalier argues that the trial court erred when, relying on Ex parte Palm Harbor, it ordered Cavalier to arbitrate Clarke’s and Wilson’s claims under the terms of the retail installment contracts entered into by Clarke and Cedar Ridge, and by Wilson and Cedar Ridge. In Ex parte Palm Harbor, the parties contemporaneously executed three documents — a security agreement containing an arbitration clause and two freestanding arbitration agreements. The security agreement contained both a merger clause and all the terms necessary to complete the transaction. None of the documents incorporated by reference any other document. Neither freestanding arbitration document contained a merger clause, and the terms of the freestanding arbitration documents contradicted the terms of the arbitration clause in the security agreement. This Court held that the merger clause in the security agreement made it the entire agreement between the parties and worked to extinguish the freestanding arbitration documents. 798 So.2d at 660-62.

Cavalier argues that these cases are distinguishable from Ex parte Palm Harbor because it, Cedar Ridge, and Clarke, on the one hand, and it, Cedar Ridge and Wilson, on the other, are all parties to the “Acknowledgement and Agreement” executed in each case, but it is not a party to the retail installment contracts that Clarke and Wilson each executed with Cedar Ridge. In Ex parte Palm Harbor, Palm Harbor Homes was not a party to any of the agreements; it relied on a third-party-beneficiary theory as its basis for compelling arbitration. 798 So.2d at 658-59 n. 1. Cavalier argues that because it is not a party to the retail installment contracts, and because the “Acknowledgement and Agreement” contains both an arbitration clause and a merger clause, the “Acknowl-edgement and Agreement” constitutes the entire agreement between it, Cedar Ridge, and Clarke, and between it, Cedar Ridge, and Wilson.

This Court decided this exact question in Belmont Homes, Inc. v. Law, 841 So.2d 237 (Ala.2002). In Belmont Homes, Belmont, the mobile-home manufacturer, was not a party to the retail installment contract executed between Law and the mobile-home dealer, but Belmont was a party to a document entitled “Acknowledgment and Agreement.” The acknowledgment in Belmont contained an arbitration clause and a merger clause. Id. at 241. In Belmont, this Court stated that the merger clause in the retail installment contract did not extinguish the acknowledgment because Belmont was not a party to the retail installment contract and because merger clauses operate to merge only agreements between the same parties. Id. at 241. This Court held in Belmont that the acknowledgment “not only repre-sentad] an independent agreement between Belmont and Law, but the entire agreement between those two parties.” Id. at 241.

In this case, Cavalier is not a party to the retail installment contracts. The “Ac-knowledgement and Agreement,” to which Cavalier is a' party, contain both an arbitration clause and a merger clause. Therefore, the “Acknowledgement and Agreement” constitutes the entire agreement between Cavalier, Cedar Ridge, and Clarke, on the one hand, and between Cavalier, Cedar Ridge, and Wilson, on the other. Cavalier is entitled to arbitrate all disputes between it, Cedar Ridge, and Clarke, and between it, Cedar Ridge, and Wilson under the terms of the arbitration clause in the “Acknowledgement and Agreement” executed with those parties. In each case, the trial court erred in disregarding the respective “Acknowledgement and Agreement.” Therefore, the trial court’s orders regarding Cavalier are reversed and these cases are remanded for further proceedings consistent with this opinion.

Cedar Ridge’s Appeals as to Clarke and Watkins

Cedar Ridge argues, like Cavalier, that the trial court erred when, relying on Ex parte Palm Harbor, it compelled it to arbitrate claims brought by Clarke and Watkins under the terms of the retail installment contracts. Belmont Homes, however, is inapposite to the issues raised in Cedar Ridge’s appeals because, unlike Cavalier, which is not a party to the retail installment contracts at issue here, Cedar Ridge is a party to the retail installment contracts executed by Clarke and Watkins. We must, therefore, consider the operation of the “Agreement for Binding Arbitration” and the “Acknowledgement and Agreement,” all of which were executed by Cedar Ridge, in relation to the retail installment contracts.

In Watkins’s case, Cedar Ridge argues that Watkins’s claims should be arbitrated under the “Agreement for Binding Arbitration.” Watkins filed no brief in this case. In Clarke’s case, Cedar Ridge argues that Clarke’s claims should be arbitrated under the “Acknowledgement and Agreement” or under the “Agreement for Binding Arbitration.” Clarke argues that Ex parte Palm Harbor controls in this case because the retail installment contract contains both an arbitration clause and a merger clause, and that, therefore, the merger clause in the retail installment contract works to extinguish the other agreements. Clarke’s and Watkins’s retail installment contracts are substantially similar, so we consider that issue first.

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract.” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000). “If the court determines that the terms [of the contract] are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.” 776 So.2d at 746. “Whether a contract is integrated is ordinarily a question of law for the court to decide.” Ex parte Palm Harbor, 798 So.2d at 661. “[A] contract may incorporate the terms of another document by reference.” McDougle v. Silvernell, 738 So.2d 806, 808 (Ala.1999); Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998)(“Parties to a contract are bound by pertinent references therein to outside facts and documents.”). “Parties to a written contract may by mutual consent without other consideration orally alter, modify or rescind the contract.” Watson v. McGee, 348 So.2d 461, 464 (Ala. 1977). When parties execute successive agreements and the “two agreements cover the same subject matter and include inconsistent terms, the later agreement supersedes the earlier agreement.” CMI Int’l, Inc. v. Internet Int’l Corp., 251 Mich.App. 125, 130, 649 N.W.2d 808, 812 (2002). Further, “it,is not always necessary for a later contract to contain an integration clause in order for this, later contract to supersede an earlier contract.” Archambo v. Lawyers Title Ins. Corp., 466 Mich. 402, 414 n. 16, 646 N.W.2d 170, 177 n. 16 (2002).

Cedar Ridge argues that because it executed the “Agreement for Binding Arbitration” contemporaneously with the retail installment contract, the two instruments should be read together as one contract. See Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 414 (Ala.1993)(“It is well settled that ‘two or more .instruments executed contemporaneously by the same parties in reference .to the same, subject matter constitute one contract and should be read together in construing the contract.’ ”). This Court, however, substantially limited that rule in Ex parte Palm Harbor. In Ex parte Palm Harbor, one of the contemporaneously executed instruments contained an arbitration clause and a merger clause, none of the instruments incorporated the others by reference, and the arbitration provisions in the instruments without merger clauses contradicted the arbitration clause in the instrument with a merger, clause; this Court held that the instrument containing the merger clause constituted the only contract between the parties. 798 So.2d at 661. If we apply the rule as stated in Ex parte Palm Harbor, because the ■ retail installment contracts executed by Cedar Ridge contain a merger clause, it would initially appear that the arbitration clause in the retail installment contracts would extinguish the arbitration clauses in the “Agreement for Binding Arbitration” signed by Clarke and Watkins.

Cedar Ridge argues, however, that its “Agreement for Binding Arbitration” is distinguishable from the agreements in Ex parte Palm Harbor because Cedar Ridge’s “Agreement for Binding Arbitration” incorporates by reference the terms of the retail installment contract. The “Agreement for Binding Arbitration” reads in pertinent part: “This agreement is a part of the contract of sale entered into this date between Buyer 'and Seller, the terms [and] provisions of which are incorporated herein by reference, and shall be binding upon and inure to the benefit of their respective heirs and assigns.”

Cedar Ridge argues correctly that a contract, such as the “Agreement for Binding Arbitration,”' may incorporate the terms of another contract by reference. McDougle, 738 So.2d at 808. Moreover, parties are free to modify agreements, and if the terms of a subsequent agreement contradict the earlier agreement, the terms of the later agreement prevail. See Watson, 348 So.2d at 464; CMI International, 251 Mich.App. at 130, 649 N.W.2d at 812. Also, the subsequent agreement need not contain its own merger clause to supersede the earher integrated agreement. Archambo, 466 Mich, at 414 n. 16, 646 N.W.2d at 177 n. 16.

Cedar Ridge asserts in this case that the “Agreement for Binding Arbitration” was entered into subsequent to the retail installment contract and thus modifies the retail installment contract, and that Cedar Ridge should be allowed to arbitrate its disputes with Clarke and Watkins under that agreement. In Clarke’s case, Cedar Ridge also argues that because it and Clarke are both parties to the “Acknowl-edgement and Agreement,” and because it and Clarke entered into the “Acknowl-edgement and Agreement” subsequent to the retail installment contract, it should be allowed to arbitrate its dispute with Clarke under the terms of the “Acknowledgement and Agreement.” While Cedar Ridge argues correctly that a subsequent agreement — the “Agreement for Binding Arbitration” or the “Acknowledgement and Agreement” — would supersede a prior agreement — the retail installment contract — the record does not reveal the order in which the documents in this case were executed. Nor does the record reveal any reliable way for a court to determine the sequence. Likewise, the record does not reveal any mutual intent among the parties for an order of execution that would cause any particular document to supersede other documents.

Instead, in each case, the evidence of record is, without any genuine factual dispute, that the documents were executed contemporaneously, on the same day, and were intended to be construed together. Therefore, in each case, the differences among the respective arbitration provisions in the documents constitute ambiguities, which should be construed against the defendants, who supplied the forms. Homes of Legend, 776 So.2d at 746 (“if all other rules of contract construction fail to resolve the ambiguity, then, under the rule of contra proferentem, any ambiguity must be construed against the drafter of the contract”). Thus, the trial court was right in compelling arbitration pursuant to the document the plaintiffs deemed most favorable to them — the main document in each case — the retail installment contract. Therefore, Cedar Ridge must arbitrate its disputes with both Watkins and Clarke under the terms of the retail installment contract.

We recognize that because Cedar Ridge and Clarke are obligated to arbitrate their dispute under the retail installment contract, Clarke must arbitrate his disputes with Cedar Ridge and with Cavalier in separate proceedings conducted under the provisions of different arbitration agreements.

Cavalier argues correctly that nothing in the Federal Arbitration Act provides for consolidated proceedings absent an expressed intention by the parties to do so. The Supreme Court of the United States held in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), “[t]he preeminent concern of Congress in passing the [Federal Arbitration] Act was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate, even if the result is ‘piecemeal’ litigation, at least absent a countervailing policy manifested in another federal statute.”

Other Issues

Finally, Clarke and Wilson argue on appeal that all of the “Agreements for Binding Arbitration” and the “Acknowledgements and Agreements” are void because, they argue, the underlying transactions do not substantially affect interstate commerce, because they do not comply with the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, and because they are unconscionable. To the extent that these arguments might be valid — and we do not offer any judgment as to their validity— these arguments would apply with equal force to the trial court’s orders to arbitrate these disputes under the terms of the retail installment contract — that is, the orders from which Cavalier and Cedar Ridge appeal. These are not grounds on which we could affirm the orders of the trial court. Neither Clarke nor Wilson has cross-appealed in this case; therefore, these arguments are not properly before the court. “[T]he law of Alabama is well-settled on this point. In the absence of taking an appeal, an ap-pellee may not cross-assign as error any ruling of the trial court adverse to appel-lee.” McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 24 (Ala.1987). See also Goldberg & Assocs., P.C. v. Donohoe, 111 So.2d 144, 146 (Ala.Civ.App.2000)(“Donohoe argues in her brief on appeal that the trial court erred.... Donohoe did not cross-appeal to raise this issue on appeal.... Therefore, this court may not consider that issue.”); McCreless v. McCreless, 673 So.2d 438, 440 (Ala.Civ.App.1995)(“the mother argues in her brief that the trial court miscalculated the amount of the arrear-age, but, because she did not cross appeal, that issue is not properly before us and we will not address her contention”).

Conclusion

We affirm the trial court’s orders compelling Cedar Ridge to arbitrate its disputes under the terms of the retail installment contracts. We reverse the trial courts’ orders as to Cavalier and remand those cases. On remand the trial court shall stay the proceedings against Cavalier and order the parties to arbitrate under the terms of the respective “Acknowledgement and Agreement.”

1011012 — REVERSED AND REMANDED WITH DIRECTIONS.

1011013 — REVERSED AND REMANDED WITH DIRECTIONS.

SEE, LYONS, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and HOUSTON, J., concur in the result.

1011014 — AFFIRMED.

1011106 — AFFIRMED.

LYONS, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., and HOUSTON and WOODALL, JJ., concur in the result.

SEE, J., dissents.

WOODALL, Justice

(concurring in case no. 1011012 and case no. 1011013 and concurring in the result in case no. 1011014 and case no. 1011106).

I concur in the per curiam opinion insofar as it reverses the trial court’s orders as to Cavalier and holds that James Clarke and Faye Wilson must arbitrate their claims against Cavalier under the terms of the “Acknowledgement and Agreement.” However, insofar as the opinion affirms the trial court’s orders as to Cedar Ridge and holds that Clarke and George Watkins must arbitrate their claims against Cedar Ridge under the terms of the retail installment contract, I concur in the result, because I am convinced that Ex parte Palm Harbor Homes, Inc., 798 So.2d 656 (Ala. 2001), compels such a result.

MOORE, Chief Justice

(concurring in the result).

I concur in the result. The parties do not argue that their respective disputes should not be resolved in arbitration; rath-ex', they argue over which instrument reflects the agreement to resolve disputes by, or governs the terms of, arbitration. Because there is no opposition to arbitration per se, the principles articulated in my dissent in Selma Medical Center v. Fontenot, 824 So.2d 668, 676-93 (Ala.2001), do not require that I dissent in these cases.

SEE, Justice

(concurring in case no. 1011012 and case no. 1011013 and dissenting in case no. 1011014 and case no. 1011106).

I concur in the per curiam opinion insofar as it reverses the trial court’s orders as to Cavalier and holds that James Clarke and Faye Wilson must arbitrate their claims under the terms of the “Acknowl-edgement and Agreement.” I dissent, however, from that part of the opinion that affirms the trial court’s orders as to Cedar Ridge and holds that Clarke and George Watkins must arbitrate their claims against Cedar Ridge under the terms of the retail installment contract.

The per curiam opinion treats all the documents executed by Clarke and Watkins in connection with the sale as having been executed contemporaneously because, it concludes:

“[T]he record does not reveal the order in which the documents in this case were executed. Nor does the record reveal any reliable way for a' court to determine the sequence. Likewise, the record does not reveal any mutual intent among the parties for an order of execution that would cause any particular document to supersede other documents.”

862 So.2d at 642. I submit that a careful reading of all of the documents would permit the trial court to reliably detei-mine the sequence of their execution.

I. Watkins

Cedar Ridge and Watkins executed two agreements, a retail installment contract and a stand-alone “Agreement for Binding Arbitration.” The retail installment contract provides, in part: “This contract can only be modified or amended, or provisions in it waived (given up), by a written modification to this Contract signed by you.” The “Agreement for Binding Arbitration” states:

“This agreement is a part of the contract of sale entered into this date between Buyér and Seller, the terms [and] provisions of which are incorporated herein by reference, and shall be binding upon and inure to the benefit of their respective heirs and assigns.”

From the use of the past tense “entered,” we can infer that the parties entered into the contract of sale before executing the “Agreement for Binding Arbitration.” The only “contract of sale” contained in the record is the retail installment contract. Therefore, by incorporating the retail installment contract, the “Agreement for Binding Arbitration” modified the arbitration provision in the retail installment contract.

Once it incorporated the retail installment contract, the “Agreement for Binding Arbitration” materially altered the terms of the contract of sale between Cedar Ridge and Watkins. Among other things, the “Agreement for Binding Arbitration” offered Cedar Ridge and Watkins greater mutuality of remedy and established limits on Cedar Ridge’s potential liability to Watkins for the setup of the mobile home. Therefore, the retail installment contract and the “Agreement for Binding Arbitration,” read together, evidence Watkins and Cedar Ridge’s intent to resolve any future disputes under the terms of the “Agreement for Binding Arbitration.”

II. Clarke

The retail installment contract and “Agreement for Binding Arbitration” executed by Cedar Ridge and Clarke are virtually identical to the agreements by the same names executed by Cedar Ridge and Watkins. Therefore, for the reasons I conclude Cedar Ridge and Watkins should arbitrate their dispute under the terms of the “Agreement for Binding Arbitration” and not under the terms of the retail installment contract, I conclude that Cedar Ridge and Clarke should not be compelled to arbitrate their dispute under the terms of the retail installment contract.

      . Cedar Ridge Factory Outlet, Inc., and Cedar Ridge Homes, Inc., are essentially the same entity. They do business at the same location; they are represented by the same attorney on appeal; they use essentially the same retail sales agreement and freestanding arbitration agreement; and they make the same legal arguments on appeal. Except where necessary to distinguish them in order to render a holding in a specific case, we treat Cedar Ridge Factory Outlet and Cedar Ridge Homes as the same entity for the purposes of this appeal.

      . Cedar Ridge is not a party to the appeal in Wilson’s case.

      . Following our reasoning in Ex parte Palm Harbor, we "resort to ordinary principles of contract law and contract construction" to resolve this issue. 798 So.2d at 660 n. 2.

      . This Court in Ex parte Palm Harbor explicitly recognized this distinction, stating: ' "Had they so desired the defendant-drafters could easily have included in the merger clause a specific reference to either of thé free-standing instruments....” 798 So.2d at 661.

      . Although Cedar Ridge is a party to the retail installment contract, the primary purpose of that contract was to protect the continuing interest of the lender, Conseco, in the mobile home. In contrast, the "Agreement for Binding Arbitration” is a contract between Watkins and Cedar Ridge only.

      . Unlike Watkins's case, Clarke also entered into an "Acknowledgement and Agreement” with Cedar Ridge that also contains an arbitration provision. To the extent, if any, the arbitration provisions in the "Acknowledgement and Agreement” and in the "Agreement for Binding Arbitration” materially differ, the trial court has reliable methods at its disposal to resolve any such differences; the trial court could conduct an evidentiary hearing to determine the order in which Cedar Ridge and Clarke executed the "Acknowledgment and Agreement” and the "Agreement for Binding Arbitration.”


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    Ex parte The MEDICAL ASSURANCE COMPANY, INC. (In re Phillip Chancey and Beth Chancey v. East Alabama Behavioral Medicine, P.C., et al.)
    1020566.
    Supreme Court of Alabama.
    April 25, 2003.

      Carol Ann Smith, Susan S. Hayes, and Candace L. Hudson of Smith & Ely, LLP, Birmingham, for petitioner.
    Randy Myers of Richard Jordan, Randy Myers, and Ben Locklar, P.C., Montgomery; and Frank H. Hawthorne, Jr., of Hawthorne & Hawthorne, LLC, Montgomery, for respondents.
   HOUSTON, Justice.

The Medical Assurance Company, Inc., an intervenor in an action pending in the Montgomery Circuit Court, petitions for a writ of mandamus ordering the trial court to continue the trial of issues relating to insurance coverage owed by Medical Assurance to the defendant, East Alabama Behavioral Medicine, P.C. We deny the writ.

I Facts

On September 23, 1999, Phillip Chancey and his wife Beth Chancey sued Dr. Kimberly Whitchard and her employer, East Alabama Behavioral Medicine, P.C. (“East Alabama”), alleging medical malpractice under the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-480 et seq. Before trial, Medical Assurance, the liability insurer for East Alabama, sought to intervene in the case for the purpose of requesting interrogatories or special verdict forms that would allow Medical Assurance to ascertain the basis of any jury verdict that might be taken against its insured. The trial court refused to allow Medical Assurance to intervene. Medical Assurance appealed, and we held that the trial court had not exceeded its discretion in denying Medical Assurance’s motion to intervene. Mutual Assurance, Inc. v. Chancey, 781 So.2d 172, 176 (Ala.2000).

Following a pro tanto settlement, Dr. Whitchard was dismissed from the case, and the case proceeded to a jury trial against only East Alabama. The jury returned a verdict in favor of the Chanceys, and on September 13, 2002, the trial court entered judgment consistent with the jury’s verdict against East Alabama in the amount of $495,000.

On October 15, 2002, Medical Assurance renewed its motion to intervene and sought a declaratory judgment that it owed “no coverage for the damages awarded against defendant East Alabama.” On November 14 and December 11, 2002, the trial court heard arguments concerning posttrial motions filed by East Alabama. Apparently, no arguments were presented at those hearings relating to Medical Assurance’s motion to intervene.

The Chanceys did not object to Medical Assurance’s motion to intervene, and, before the trial court’s ruling on the motion, twice noticed the deposition of a Medical Assurance representative pursuant to Rule 30(b)(6), Ala. R. Civ. P.

On January 10, 2003, the trial court entered an order granting Medical Assurance’s renewed motion to intervene and scheduling a trial on the insurance-coverage issues for 13 days later on January 23, 2003. Medical Assurance states that it did not receive notice of the trial court’s order until January 15. The Chanceys filed their response to Medical Assurance’s motion on January 16, 2003.

On January 16, Medical Assurance requested a continuance of the January 23 trial. On January 21, two days before the trial date, the trial court denied Medical Assurance’s request for a continuance. Medical Assurance immediately moved for reconsideration of the trial court’s denial, stating the following grounds:

“4. As a jury demand has been made in the underlying matter, the fact-finder for any coverage issues must also be a jury. Rule 40(a), Ala. R. Civ. P., envisions that any party will have at least sixty (60) days notice of a trial setting .... The current trial date of this matter conflicts with the provisions of Rule 40(a).
“5. The current trial setting does not provide Medical Assurance adequate time within which to prepare this matter for trial. Specifically, Medical Assurance has not been provided with the opportunity to:
“a. conduct discovery, including but not limited to depositions, written interrogatories, requests for production, and requests for admissions;
“b. fully explore and develop contract defenses to the issues tried in the underlying matter;
“c. locate and identify expert witnesses;
“d. prepare and submit dispositive motions;
“e. exchange witness exhibit lists; and,
“f. prepare and file detailed pre-trial motions.
“6. Counsel for Medical Assurance has only today [January 21] received a copy of the trial transcript from the trial of the underlying claims. The testimony contained therein is of critical importance to the requests for declaratory relief of Medical Assurance.
“7. The current trial setting does not provide Medical Assurance with adequate time to respond to or conduct investigation of the affirmative defenses raised in Plaintiffs Answer, which was filed with this Court only 3 days ago.
“8. Finally, lead trial counsel for Medical Assurance ... was recently hospitalized for pneumonia and is out of the state recuperating ... [and] has not yet been released by her physician to return to work.”

The trial court did not rule on Medical Assurance’s motion. On January 22, the day before trial was to begin, Medical Assurance petitioned this Court for a writ of mandamus, based on the same reasons as set out in its motion asking the trial court to reconsider its order denying the continuance. We granted Medical Assurance’s emergency motion to stay the proceedings. We now deny its petition for a writ of mandamus.

II. Standard of Review

This Court’s standard of review applicable to a petition for a writ of mandamus is well settled:

“ ‘Mandamus is an extraordinary remedy and requires a showing that there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perfonn, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000). A decision to deny a motion for continuance is within the sound discretion of the trial court. Kitchens v. Maye, 623 So.2d 1082 (Ala.1993); Thomas v. Kellett, 489 So.2d 554, 555 (Ala.1986)(“It is well settled that the trial court’s denial of a motion for continuance will not be overturned absent palpable or gross abuse of the trial court’s discretion.”). “A writ of mandamus may not be issued to control or review the exercise of discretion, except where an abuse of discretion is shown.” Ex parte Speedee Cash of Alabama, Inc., 806 So.2d 389, 392 (Ala.2001).

III. Analysis

Medical Assurance argues that the trial court's setting a trial date 13 days after granting its motion to intervene conflicts with Rule 40(a), Ala. R. Civ. P., and therefore, Medical Assurance argues, the trial court exceeded its discretion in refusing to grant a continuance. Rule 40(a) provides:

“(a) Setting of cases. The trial of actions shall be set by entry on a trial docket or by written order at least 60 days before the date set for trial, subject to the following exceptions: (1) where, when the interests of justice require, the court continues the trial to a date that is less than 60 days from a previously set trial date that was set in compliance with this rule; (2) where a shorter period of time is available under the provisions of Rule 55 (‘Default’); (3) where a shorter period of time is available under the provisions of Rule 65 (‘Injunctions’); (4) where a shorter period of time serves the ends of justice in domestic relations cases; (5) where a shorter period of time serves the ends of justice in a habeas corpus or other similar proceeding where the liberty interest of an individual is at issue; (6) where an action has been appealed to the circuit court for de novo review, in which event the time period between setting and trial date shall be at least thirty (30) days; and (7) ivhere a shorter period of time is otherwise provided by law or these rules or agreed to by all the parties.”

(Emphasis added.)

While Rule 40 vests considerable discretion in the trial court concerning the setting of cases for trial, see Rule 40(a), Committee Comments on 1973 Adoption, the rule sets 60 days as the mandatory minimum time within which parties to an action must have notice of a trial setting. As shown above, however, the 60-day requirement is subject to certain exceptions. Rule 40(a)(7) provides that the 60-day limit is not applicable “where a shorter period of time is otherwise provided by law or these rules or agreed to by all the parties.”

In fact, the Alabama Rules of Civil Procedure do provide for a shorter period in a declaratory-judgment action. Rule 57, Ala. R. Civ. P., states, in part: “The court may order a speedy hearing of an action for declaratory judgment and may advance it on the calendar.” This rule clearly fits within the Rule 40(a)(7) exception to the 60-day notice requirement. The trial court, therefore, is not constricted to the 60-day notice requirement in a declaratory-judgment action. Yet even in a declaratory-judgment action, the trial court’s discretion is not absolute. While there may be no mandatory minimum number of days provided for notice of a trial setting in a declaratory-judgment action, due process demands that the parties still have a fair chance to prepare for trial, to conduct discovery, to submit pretrial motions, and to conduct other necessary pretrial activities. If these matters can fairly be accomplished, the trial court may, in its discretion, set a declaratory-judgment action for a “speedy” trial upon less than the 60-day notice provided in Rule 40(a). See Rule 57, Ala. R. Civ. P.

In the present action, it is undisputed that in its motion to intervene Medical Assurance sought a declaratory judgment on coverage issues relating to the judgment against its insured, East Alabama. Therefore, Rule 40(a)(7), Ala. R. Civ. P., is determinative. Medical Assurance’s petition for a writ of mandamus, however, relies solely on the 60-day notice requirement of Rule 40(a), without considering the effect of the exception set forth in Rule 40(a)(7).

A writ of mandamus will be issued only in a case where the petitioner has established a clear legal right to the order sought. Ex parte Inverness Constr. Co., 775 So.2d at 156. In light of the unique procedural posture of this case and Medical Assurance’s misplaced reliance upon the 60-day notice requirement of Rule 40(a), we do not believe Medical Assurance has demonstrated a clear legal right to the requested relief. Accordingly, Medical Assurance’s petition is due to be denied.

Additionally, Medical Assurance argues that the trial court exceeded its discretion in conditioning its grant of East Alabama’s motion to stay the execution of the judgment on East Alabama’s posting a bond in the amount of 125% of the judgment within five days of its January 10, 2003, order. This ruling, however, is adverse to East Alabama, not Medical Assurance. Therefore, Medical Assurance does not have standing to complain of the trial court’s ruling on East Alabama’s motion. See Atchison v. Goodwin, 460 So.2d 1243, 1244 (Ala.1984); Otts v. Gray, 287 Ala. 685, 691, 255 So.2d 26, 31 (1971). Accordingly, Medical Assurance has not demonstrated a clear legal right to a writ of mandamus on the ground that the trial court improperly required East Alabama to post a bond to stay execution of the judgment. See Ex parte Izundu, 568 So.2d 771, 772-73 (Ala. 1990).

IV. Conclusion

Because Medical Assurance has not shown a clear legal right to the writ of mandamus, its petition is denied.

PETITION DENIED.

MOORE, C.J., and SEE, LYONS, and JOHNSTONE, JJ., concur.

WOODALL, J., concurs in the result.

BROWN and STUART, JJ., dissent.

      . On May 20, 1999, the name of the corporation was changed from “Mutual Assurance, Inc.,’’ to "The Medical Assurance Company, Inc.”

      . Medical Assurance's “renewed motion to intervene for limited purpose to address the issue of insurance coverage” states:
      “Comes now Medical Assurance, Inc. ... and renews its Motion for Intervention solely for the limited purpose of addressing insurance coverage for the verdict rendered in the case:
      "1. On September 13, 2002, a jury verdict was rendered in the above action against defendant [East Alabama], The verdict form completed by the jury and entered by the Court held in favor of the plaintiffs and awarded compensatory damages in the amount of $2.00 and awarded punitive damages in the amount of $498,000.00. The verdict was reduced by the amount of a settlement with another defendant making the total award $495,000.00.
      "2. Based upon this award, Medical Assurance now renews its Motion to Intervene. In this motion, Medical Assurance seeks a determination from this court that there is no coverage for the damages awarded against defendant [East Alabama]. In support of this motion, Medical Assurance respectfully shows the court as follows:
      "3. Medical Assurance issued a Professional Liability Insurance Policy [to East Alabama].... The policy provides, in pertinent part: that Medical Assurance will pay all sums that the insureds become legally liable to pay as damages because of a medical incident .... The policy defines medical incident as 'a single act or omission or a series of related acts or omissions arising out of the rendering of, or the failure to render, professional services to any person ... by the named insured or any person for whose acts or omissions the named insured is legally responsible; ... which results or-is likely to result in damages or a claim or suit.’ The policy defines professional services as the provision of medical opinions or medical advice. The evidence presented at trial and upon which the jury's verdict is based does not involve a ‘medical incident' as defined by the policy.
      “4. [East Alabama’s] insurance policy with Medical Assurance excludes liability ‘arising out of any willful, wanton, fraudulent, criminal, or malicious act or omission.’ The jury's verdict amounts awarded for punitive damages arise out of such conduct and are expressly excluded from coverage.
      “5. The jury verdict was based upon evidence that a doctor at [East Alabama] engaged in sexual intercourse or other sexual contact with a patient, plaintiff Phillip Chancey. Medical Assurance’s policy issued to [East Alabama] contains Exclusion (e) which excludes from coverage damages 'arising out of sexual activity, or acts in the furtherance of sexual activity on the part of the Named Insured or any person for whose acts the Named Insured is legally responsible, whether under the guise of treatment or not, and provided that this exclusion shall not apply to the defense of suits for which coverage is otherwise afforded.
      "6. The policy also excludes liability arising out of intentional acts under Exclusion (d). The jury's verdict was based upon a finding that the insured was guilty of committing intentional acts and the awards are therefore excluded from coverage.
      “7. Evidence was presented at trial that the insured altered patient records and therefore violated a condition of the policy which voids coverage and terminates any obligation which Medical Assurance has under its policy with [East Alabama]....
      "WHEREFORE, PREMISES CONSIDERED, Medical Assurance respectfully requests this court enter an order granting its motion for limited intervention for the sole purpose of determining insurance coverage for the jury's award in this case.”

      . The trial court’s January 10, 2003, order also granted East Alabama's "motion for stay [of] execution,” but conditioned the stay upon East Alabama's posting of a bond in the amount of 125% of the judgment by January 15, 2003.


author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Mary Ellen EASON, as administratrix of the estate of Leo Harold Eason, deceased v. Robert P. BYNON, Jr.
    2011143.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    Calvin M. Howard, Birmingham, for appellant.
    Braxton Wagnon of Johnston & Conwell, L.L.C., Birmingham; and Jerome Tucker III, Birmingham, for appellee.
   CRAWLEY, Judge.

This is the third appeal involving property jointly owned by Leo Harold Eason (“the brother”) and Mary Ellen Eason (“the sister”). See Eason v. Bynon, 781 So.2d 238 (Ala.Civ.App.2000)(“Eason I”), and Eason v. Bynon, 845 So.2d 817 (Ala. Civ.App.2002) (“Eason II”). In this appeal, the sister, as administratrix of the brother’s estate, appeals from the circuit court’s denial of a Rule 60(b), Ala. R. Civ. P., motion seeking relief from a December 2, 1999, judgment in favor of Robert P. Bynon, Jr. We affirm.

The relevant facts were set out in our previous opinions as follows:

“Mary Ellen Eason lives in the home place that she, her brother Leo, and her sister Elizabeth Eason Hardiman inherited from their parents. Ms. Eason is 75 years old; she has a ninth-grade education. Her brother Leo (who is now deceased) had a third-grade education and could not read or write.
“In 1988, Leo was charged with murder. Bynon, a lawyer, agreed with Leo to defend him in the criminal prosecution for a fee of $25,000. Leo agreed to sign a $25,000 note, to be secured by a real-estate mortgage on the home place he owned with his sisters. At trial, By-non introduced a note and a mortgage, dated December 7, 1988, both purportedly signed by Mary Ellen Eason and Leo Eason and acknowledged by Shirley A. Franklin, a notary public.
“Ms. Eason testified that, on December 7, 1988, Bynon came to her home and drove her to the county jail, telling her that they were going to ‘get [her brother] out on bond.’ According to Ms. Eason, four people were present on that occasion: Ms. Eason; her brother Leo; Bynon; and the bail bondsman, a Mr. King. She testified that Bynon handed the bondsman $1000 and then had her and her brother sign some papers that Bynon said were ‘bond papers.’ Ms. Eason testified that Bynon did not tell her she was signing a note and a mortgage. She said that she ‘didn’t even know what a mortgage note [was].’ She admitted that she did not read the documents before signing them. At trial, Ms. Eason was shown a copy of the note and the mortgage, and she acknowledged that the signatures were hers. However, she denied knowing the contents of the documents, denied signing them before a notary, and denied talking to anyone named ‘Shirley A. Franklin.’
“Bynon testified that Shirley A. Franklin was his secretary in 1988, that she was a notary, and that her acknowledgment appears on the note and the mortgage. When he was asked whether Ms. Franklin was present at the jail when the mortgage was executed, Bynon replied, ‘I don’t recall where that was signed.’ Bynon also did not recall who was present at the signing of the documents. When confronted with Ms. Ea-son’s testimony that she had ‘never signed any documents before a notary public,’ Bynon responded that he had ‘never lied to anybody while [he had] been practicing law.’ ”

Eason I, 781 So.2d at 239-40.

“In Eason I, Bynon had sued [Mary Ellen Eason and Leo] Eason, seeking, among other things, a reformation of the mortgage to correct the legal description of the real property in which Ms. Eason, her brother, and her sister had an interest. Ms. Eason asserted the defense that the mortgage was invalid because of Bynon’s fraud and the notary’s violation of her legal duty. Ms. Eason demanded a jury trial. The trial court struck the jury demand and eventually entered a judgment reforming the mortgage.
“Ms. Eason appealed; this court reversed, concluding that the trial court had erred by striking the jury demand. We stated that, although Bynon had requested equitable relief, for which a jury trial was not available, Ms. Eason had asserted a legal defense for which she had the right to a trial by jury. We held: ‘[T]he resolution of the equitable issue (whether the trial court should reform the legal description in the mortgage) was necessarily dependent on the resolution of the legal issue (whether the mortgage was valid).’ 781 So.2d at 241.”

Eason II, 845 So.2d at 819.

After our reversal in Eason I, Bynon moved for, and the circuit court entered, a judgment on the pleadings against the brother because, the circuit court held, the brother had neither demanded a jury trial nor appealed from the circuit court’s judgment reforming the mortgage. The sister moved for leave to amend her original pleadings to assert a counterclaim against Bynon. The proposed counterclaim alleged fraud and sought $100,000 in compensatory damages and $100,000 in punitive damages. Thereafter, Bynon dismissed his claim against the sister, and the circuit court denied the sister’s motion for leave to add a counterclaim.

The brother died on May 9, 2000. Counsel entered a postjudgment appearance for the sister, as administratrix of the brother’s estate, and moved to alter, amend, or vacate the December 2, 1999, judgment as to the brother, asserting that Bynon’s action against the brother should be dismissed, pursuant to Rule 25(a)(1), Ala. R. Civ. P. The motion alleged that, on July 11, 2000, the sister had filed on the record a suggestion of the brother’s death and that Bynon had not filed within six months of the filing of the suggestion of death a motion to substitute the proper party; therefore, she maintained, Bynon’s action against the brother should be dismissed. The administratrix also argued that the circuit court had erroneously reformed the mortgage because, she claimed, the mortgage was invalid. The circuit court denied the sister’s postjudgment motion and the sister (individually — not as administratrix of her brother’s estate) appealed, raising three issues: (1) that the judgment on the pleadings for Bynon was an attempt to circumvent this court’s holding in Eason I; (2) that the failure to dismiss Bynon’s action against the brother violated Rule 25(a)(1), Ala. R. Civ. P.; and (3) that the circuit court abused its discretion by denying her motion to be allowed to file a counterclaim pursuant to Rule 13(f), Ala. R. Civ. P.

In Eason II, this court affirmed the circuit court’s judgment. We held: (1) that, because the brother had neither demanded a jury trial nor appealed the circuit court’s judgment reforming the mortgage, the holding in Eason I had no application to the brother’s interest in the property; (2) that the trial court had not erred by failing to dismiss the action against the brother because a proper suggestion of death had not been filed; and (3) that the trial court had not abused its discretion by denying the sister’s motion seeking to be allowed to file a counterclaim.

After the release of our opinion in Ea-son II, the sister, as administratrix of the brother’s estate, filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from the December 2, 1999, judgment against the brother — a judgment that reformed the mortgage to correct the legal description of the real property in which the brother had an interest. The Rule 60(b) motion alleged: (1) that the brother had a good defense to Bynon’s action to reform the mortgage; (2) that the circuit court erred by entering a judgment on the pleadings in favor of Bynon and against the brother because the brother was not served with written notice of the application for the judgment at least three days before the hearing; and (3) that, under the “rule of entirety,” this court’s reversal of the judgment as to the sister’s interest in the property that is the, subject of the mortgage also required a reversal of the judgment as to the brother’s interest in the property, notwithstanding the fact that neither the brother nor his estate had appealed from the judgment.

The first ground for the sister’s Rule 60(b) motion — that the brother had a good defense to Bynon’s reformation action— while a necessary allegation in a motion to set aside a default judgment under Rule 55(c), Ala. R. Civ. P., see Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988), is not determinative in a Rule 60(b) motion. The second ground — that the brother was not served with written notice of the application for the judgment on the pleadings at least three days before the hearing — does not state a basis for relief under Rule 60(b). There is no requirement that a party be given three days’ notice of the entry of a judgment on the pleadings. Compare Rule 55(b)(2), Ala. R. Civ. P. (“[i]f the party against whom judgment by default is sought has appeared in the action, the party ... shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application” (emphasis added)). The sister’s third ground for the Rule 60(b) motion — that this court’s reversal of the judgment as to her interest in the property required a reversal of the judgment as to her brother’s interest in the property, notwithstanding the brother’s failure to appeal — requires further discussion. The sister’s motion did not specify under which subsection of Rule 60(b) she was seeking relief, but, because the motion was not made within four months of the December 2, 1999, judgment, it could fall- only within subsections (5) or (6). See Rule 60(b); R.E. Chills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994). Those subsections state:

“On motion and upon such terms as are just, a court may relieve a party ... from a final judgment ... for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

In Glasscock v. Wallace, 488 So.2d 1346 (Ala.1986), a nonappealing defendant sought to take advantage of an appellate court’s reversal of a judgment against his codefendants by moving for relief under Rule 60(b)(6). The procedural history of that case is recounted in Teague v. Glasscock, 456 So.2d 277 (Ala.1984). A former employee of the State Department of Education (“the Department”) sued the Department, the superintendent of the Department, and other state officials, including the Governor, seeking reinstatement and back pay. The circuit court entered a judgment ordering the superintendent and the Department to reinstate the former employee and ordering the Governor to pay him back pay. The superintendent and the Department appealed; the Governor did not appeal. The Alabama Supreme Court reversed the judgment against the superintendent and the Department and remanded the case.

The Governor then filed a Rule 60(b)(6) motion, seeking to have the judgment against him set aside because of the reversal as to the other defendants. After hearing the Governor’s argument that he “ ‘felt that his interests were adequately represented by counsel for [the other defendants], and that a separate appearance on his behalf would be unnecessary,’ ” and that “ ‘counsel for [the] Governor ... was never informed that an appeal had, in fact, been taken,’ ” 488 So.2d at 1347, the eir-cuit court granted the Governor’s motion to set aside the judgment. The Alabama Supreme Court affirmed the circuit court’s decision that “ ‘the Rule 60(b)(6) motion is particularly applicable to this case, and in the interests of justice should be granted.’ ” 488 So.2d at 1348. The former employee appealed from the order granting Rule 60(b) relief in Glasscock v. Wallace, 488 So.2d 1346, 1347 (Ala.1986).

In Glasscock v. Wallace, the supreme court stated the general rule that when a judgment is rendered against more than one party and only one of the parties appeals, the judgment against the nonap-pealing party remains valid despite a reversal of the judgment as to the appealing party. The court then discussed an exception to the general rule:

“ ‘Rule 60(b)(6), [Ala.] R. Civ. P., is an extreme and powerful remedy and should be used only under extraordinary circumstances, and it is not available as a substitute for an appeal. Gallups v. United States Steel Corp., 353 So.2d 1169, 1172 (Ala.Civ.App. 1978). Ordinarily, where a judgment is rendered against two defendants and one appeals, the judgment is valid against the non-appealing party. However, the court finds the following statement at 5B C.J.S. Appeal & Error § 1920 [ (1958) ] informative in this case:
“ ‘ “The rule that reversal on appeal by a party does not justify reversal of nonappealing parties, however, is not invariable, and where the judgment is not severable, or where the rights and interests of the parties are so intermingled and interdependent that reversal in favor of one would injuriously affect the right of his co-parties, the court, if reversal is proper as to appellant, may reverse as to non-appealing parties.”
“ ‘The general rule that a Rule 60(b)(6) motion is not a remedy for failure to take an appeal is not inflexible, and in unusual cases it may afford relief. 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2864 (1973).’ ”

Glasscock v. Wallace, 488 So.2d at 1347-48.

Another exception to the rule leaving intact a judgment against a nonappealing party is encompassed in the “rule of entirety.” Citing Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674 (1966), the sister, as administratrix of the brother’s estate, relies upon this rule to argue for a reversal of the judgment concerning the estate’s interest in the property. The “rule of entirety” was based upon the common-law prohibition against splitting an action. In an early Alabama decision, the court explained:

“It is insisted for plaintiff that if this court should reverse the judgment for error against [one defendant], it should be affirmed against [the other defendant], there being no error to his prejudice. Courts of law never split one action into two or more — as would be done in this by the course proposed — and leave one part of it in one court and one in another court. A plaintiff must pursue his one suit against several persons, as he brought it, to its conclusion as a single cause, unless as to some or one of the defendants it is abated, or is otherwise legally discontinued.”

Huckabee v. Nelson, 54 Ala. 12, 15 (1875). Later, in Alabama Power Co. v. King, supra, our supreme court explained that the common-law “rule of entirety” had been modified, but not altogether abandoned:

“At common law a joint judgment was regarded as an entirety, and a reversal of the judgment as to one defendant required a reversal as to all. Some of our earlier cases reflect this rule. This earlier rule of entirety has now been modified to the extent that where a judgment, though joint in form is several in effect, and the interests of the parties are several and independent, then such judgment is not necessarily considered as entire, and such joint judgment may be reversed as to one or more of the defendants and not as to the other.
“This relaxation of the older rule has, however, never been applied where it might work an injustice to one party defendant if the judgment were to be affirmed as to him while reversed as to one or more of the joint defendants. In such case the power exists, in the ends of justice, to reverse the judgment in its entirety.”

280 Ala. at 124-25, 190 So.2d at 679-80 (citations omitted). Generally, Alabama courts have applied the “rule of entirety” to give one defendant the benefit of a reversal obtained by a codefendant in three circumstances: (1) when the issues or claims are intertwined; (2) when it would be unfair to leave one defendant liable for the entire amount of the judgment rendered against both defendants; or (3) when a new trial for one defendant alone could lead to inconsistent judgments. See, e.g., CP & B Enters., Inc. v. Mellert, 762 So.2d 356 (Ala.2000).

In Mellert, an employee sued her employer and a co-employee, alleging that the co-employee had sexually harassed her and that the employer was negligent and wanton in retaining the harassing employee. She also alleged that the employer was vicariously liable for the co-employee’s actions. A jury returned a verdict for the plaintiff against both defendants, awarding her compensatory damages of $25,000 and punitive damages of $250,000. The trial court entered a judgment against the defendants, making each defendant liable for the whole amount awarded by the jury. On appeal, the supreme court reversed the judgment against the employer, holding that the trial court had erred by failing to present the jury with a verdict form that would have allowed it to award punitive damages only against the co-employee. The court further held:

“Because we are reversing the judgment against [the employer], we must also reverse the judgment against [the co-employee]....
“The claims against [the co-employee] and [the employer] are so intertwined as to be inseparable; therefore, our reversal of the judgment against [the employer] necessitates a reversal as to [the co-employee]. It would be unfair to leave one defendant liable for the entire amount of a judgment rendered against both defendants. In addition, a new trial for [the employer] alone could lead to inconsistent judgments.”

Mellert, 762 So.2d at 364-65. See also Alabama Power Co. v. King, 280 Ala. at 124, 190 So.2d at 679 (determining that, when Alabama Power succeeded in obtaining a reversal of a judgment holding two automobile drivers and Alabama Power jointly liable for causing the plaintiffs house to burn as a result of vehicles’ striking a power pole, the two automobile drivers were also entitled to a reversal, despite the fact that they did not argue on appeal the ground made the basis for reversal, because the claims against all three defendants were “so intertwined as to be inseparable”); Beneficial Mgmt. Corp. of America v. Evans, 421 So.2d 92, 98 (Ala.1982)(holding that, in an action submitting to the jury claims of invasion of privacy and infliction of emotional distress against one defendant and claims of slander against two other defendants, a determination that the jury was erroneously charged with respect to the slander claims necessitated a reversal of the judgment against all defendants on all claims because “the issues in this case [were] interrelated, ... [and] justice [would] be best served by a reversal and retrial of the case in its entirety”); Bush v. James T. Johnson & Co., 411 So.2d 139, 142 (Ala.Civ.App.1982)(holding that, when a default judgment was entered against two defendants and a judgment on the merits was entered against the third defendant, a reversal of the default judgments against the first two defendants necessitated a reversal of the judgment against the third defendant because “[t]he relationship between the defendants [was] so intertwined that it would be unjust to affirm the judgment as to the one defendant who appeared and reverse the judgment as to those who failed to appear” and “it would be unfair to leave [the third] defendant liable for the whole amount of th[e] judgment”).

Conversely, Alabama courts have not applied the “rule of entirety” to give one defendant the benefit of a reversal obtained by a codefendant when the interests of the defendants are separate and independent, and it would not be unjust to reverse the judgment as to one and affirm as to another. See, e.g., Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972) (determining, in an action alleging breach of a real estate sales contract, that a real estate salesperson acting merely as agent for a disclosed principal could not be found personally liable; therefore, the reversal of a judgment against the salesperson did not require a reversal of the judgment against the realtor and the seller); St. Paul Fire & Marine Ins. Co. v. Anderson, 358 So.2d 151, 158-59 (Ala.Civ.App.1977) (holding that, because the soliciting agents for an insurer had no authority to alter the coverage terms of an insurance policy, any misrepresentations as to the extent of coverage by the agents could not be attributed to the insurer; therefore, the reversal of a judgment against the insurer did not require a reversal of the judgment against the agents because “the interests of the parties against whom judgment [was] rendered are several and independent, [and] the joint judgment may be reversed as to one or more of the defendants and not as to all”), reversed on other grounds, Proctor Agency, Inc. v. Anderson, 358 So.2d 164 (Ala.1978); Central Bank v. Boyles, 355 So.2d 98, 102 (Ala.Civ.App.1977)(hold ing that, when a judgment against a bank and other defendants was reversed as to the bank because of improper venue, the other defendants were not entitled to a reversal of the judgment as to them because “[t]he judgment as entered is not entire as to all parties and the interest of [the bank] is largely separate and independent from that of the remaining defendants” and “no substantial injustice results to these defendants as a result of reversing as to [the bank] and affirming as to the remaining defendants”).

In the present case, the interests of the brother and the sister were both separate and interrelated. Their interests were legally separate in the sense that each sibling had a $ interest in the real property that a creditor could levy on separately. Their interests were economically and emotionally interrelated in the sense that any foreclosure and sale as to the brother’s interest could displace the elderly sister from her home place. If this court were to decide that, in the interests of justice, the rule of entirety required a reversal of the judgment against the brother, we would not thereby be “invalidating” the mortgage; we would merely be remanding the cause for a jury trial on the issue of the validity of the mortgage. The problem with that relief is that the brother did not simply fail to demand a jury trial and fail to appeal; he affirmatively objected to a jury trial.

Rule 60(b)(6) relief is not usually available to one who has not sought to “achieve a favorable result before the judgment becomes final.” Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993). In Patterson, our supreme court explained the parameters of Rule 60(b)(6):

“[Ujnder Rule 60(b)(6), relief is granted only in those extraordinary and compelling circumstances when the party can show the court sufficient equitable grounds to entitle him to relief, but relief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments. See the Comment to Federal Rule of Civil Procedure 60(b). As the Court held in Nowlin v. Druid City Hosp. Bd., 475 So.2d 469 (Ala.1985), Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.”

623 So.2d at 1145.

We conclude that the interests of justice do not require a reversal of the judgment against the brother. The judgment entered against the brother is valid, and the brother’s estate is not entitled to a new trial just because the sister wants a jury trial. The judgment of the circuit court is affirmed.

AFFIRMED.

YATES, P.J., concurs.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached in the main opinion; however, I see no need to interpret or to determine the proper application, if any, in this case of the principle relied upon at the end of the main opinion, namely, that Rule 60(b) relief is not usually available to one who has not sought to “achieve a favorable result before the judgment becomes final.” Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993). Instead, I would reach the same result as does the main opinion, but I would do so on a procedural ground different from the ground relied upon by the main opinion. Specifically, I find the issues raised on behalf of the brother’s estate in this appeal to be issues that either were raised or could have been raised in Eason II. While the estate submitted those issues to the trial court in a Rule 60(b) motion after Eason II was decided, Rule 60(b) is not a substitute for an appeal. Patterson, supra.

      . It is unclear why the trial court entered a judgment on the pleadings against the brother when, according to the trial court's reasoning, only that part of the December 2, 1999, judgment that pertained to the sister's interest in the property had been reversed in Eason I. Later in this opinion, we will address the sister's argument that the effect of Eason I was to reverse the entire judgment.

      . This court did not address the issue of the validity of the mortgage in Eason I or Eason II. In Eason I, we held only that the sister was entitled to a jury trial on that issue.

      . On December 11, 1998, Bynon alleged that he had served the summons and complaint on a correctional facility where the brother was incarcerated; that the warden of the facility had accepted service of process for the brother; and that the warden had informed Bynon that the brother was "incompetent and incapable of understanding the summons and complaint.’' Bynon therefore moved the trial court to appoint a guardian ad litem (“GAL”) for the brother. On January 15, 1999, the sister answered Bynon’s complaint and demanded a jury trial. On January 21, the court appointed a GAL for the brother. On October 26, 1999, the GAL filed an "Objection to Trial by Jury,” specifically requesting that the court place the case on the nonjury docket.


author: CRAWLEY, Judge.

text:
    Andora BAKER v. Cornelius BAKER, Sr.
    2011118.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    Vanessa Arnold Shoots, Mobile, for appellant.
    John C. Brutkiewicz of Brutkiewicz Attorneys, Mobile, for appellee.
   CRAWLEY, Judge.

Andora Baker (“the wife”) appeals from a judgment denying her Rule 60(b)(6), Ala. R. Civ. P., motion for relief from a judgment divorcing her from Cornelius Baker, Sr. (“the husband”). The wife argues that the divorce judgment is due to be set aside because, she says, it was obtained by duress.

The parties were married in 1989. They have three children. On October 17, 2000, they had an argument during which the wife left the house in her vehicle, telephoned the husband on her cellular telephone, and informed him that she was going to take the children and leave him. Shortly after that conversation, the wife noticed that the husband and his brother were pursuing her vehicle in the husband’s truck. At an intersection, the husband “hemmed in” the wife’s vehicle with his truck. The husband got out of his truck, walked to the driver’s side of the wife’s vehicle, and demanded that the wife get out of her car. When the wife refused, the husband kicked in the driver’s side window of the wife’s car. Opening her car door, the husband repeated his demand that the wife get out of the car; the wife continued to refuse. The husband then reached into her car, grabbed the wife by the shoulders, and pulled her out of the car, causing her to fall to the ground. The husband drove away in the wife’s car; the husband’s brother left the scene in the husband’s truck. The wife testified that, as she lay on the ground alone, she had a seizure. She was transported by ambulance to a local hospital where she was treated and released that night. She spent the night with a girlfriend.

According to the wife, the husband picked her up the next morning and took her to his attorney’s office. The wife testified that she went with the husband because she was afraid of what he would do if she refused. When the parties arrived at the husband’s attorney’s office, no attorney was present. The wife said that a secretary handed her some papers, which she read and signed. The wife did not talk to the husband’s attorney on that day or on any other day. However, in December 2000, the wife consulted two attorneys on her own. The wife testified that although both of those attorneys told her that they could not help her, they summarized the documents for her. At trial, the husband introduced several documents, including a divorce settlement agreement, that the wife acknowledged she had signed on October 18, 2000.

The circuit court judge signed the parties’ divorce judgment on January 22, 2001. The settlement agreement signed by the wife on October 18, 2000, was incorporated into the divorce judgment; it provided that the parties would share joint legal custody of the children, with the husband having sole physical custody and the wife having liberal visitation rights. The settlement agreement also stated that the wife, who was then unemployed, would owe no child support to the husband. The husband agreed to be responsible for the children’s health insurance and for the wife’s health insurance for 18 months. The husband was awarded the marital home and was responsible for the indebtedness thereon. The husband was also awarded a 1998 Nissan truck subject to the outstanding indebtedness on that vehicle. The wife was awarded a 1993 Toyota Camry automobile subject to the indebtedness on that vehicle. The divorce judgment stated that “any and all [other] personal property [had] been divided satisfactorily between the parties.” At trial, the wife testified that she had received only three items from the marital home: a recliner, a television, and a curio cabinet containing her crystal. She stated that the parties had a joint bank account and that she had received none of the funds in that account. She said that, although she had read the settlement agreement before she signed it on October 18, 2000, no one had explained it to her and she had not understood it. She testified that it was only in December 2000, after she had consulted two lawyers, that she understood that she had “lost her children and her home.”

On January 4, 2002, nearly a year after the divorce judgment was entered, the husband filed a petition to modify the child-support provision of the judgment, seeking child support from the wife who, he alleged, had recently become employed. The husband’s petition to modify was set for a hearing on May 6, and was continued to May 24. On May 24, the wife filed her motion to set aside the divorce judgment pursuant to Rule 60(b)(6).

At the hearing on the Rule 60(b) motion, the deposition of Dr. William S. Fleet, a Mobile neurologist who had been treating the wife since May 2000, was admitted. Noting that he could find no objective basis for believing that the wife actually suffered from seizures and stating that the wife’s “psychological state made it so that her history was pretty unreliable,” Dr. Fleet characterized the wife’s reported seizure episodes as “pseudo-seizures.” Explaining that the wife either believed she was having seizures when she was not or that she was “faking” seizures, Dr. Fleet said that he had referred the wife to a psychiatrist who diagnosed her as suffering from an “adjustment disorder.” Following the hearing on the wife’s Rule 60(b) motion, the trial court summarily denied the motion.

Rule 60(b) provides, in pertinent part: “On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (3) fraud ..., misrepresentation, or other misconduct of an adverse party; ... (5) ... it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

In Osborn v. Roche, 813 So.2d 811, 815 (AJa.2001), our supreme court reiterated the standard of review for motions made pursuant to Rule 60(b)(6):

“ ‘[T]he decision whether to grant or deny [a Rule 60(b)] motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined “that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979), quoting Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).’
“Ex parte Dowling, 477 So.2d 400, 402 (Ala.1985).”

In Delchamps v. Delchamps, 449 So.2d 1249 (Ala.Civ.App.1984), this court stated:

“[W]here the trial court alone hears disputed evidence a presumption of correctness attends the court’s findings and such findings will not be overturned except for palpable error, manifest unjustness, or where unsupported by the evidence. In deciding a rule 60(b) motion to set aside a judgment of divorce, the trial court has wide discretion, and its determination will be reversed only for an abuse of that discretion.”

449 So.2d at 1250 (citations omitted). In the absence of specific findings of fact, an appellate court will presume that the trial court made those findings necessary to support its judgment unless such findings would be clearly erroneous. See Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997).

Although the wife’s claim of duress might appear to fall under subsection (3) of Rule 60(b), she is foreclosed from obtaining relief pursuant to that subsection because she filed her motion 16 months after the divorce judgment was entered. Her remedy, if any, is therefore pursuant to subsection (6). In R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994), our supreme court stated:

“The ‘catch all’ provision of clause (6) of Rule 60(b) allows a trial court to grant relief from a judgment for ‘any other reason justifying relief.’ Barnett v. Ivey, 559 So.2d 1082, 1084 (Ala.1990). ‘ “Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.” ’ Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984)(quoting Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)).”

The wife cites Elliott v. Elliott, 667 So.2d 116 (Ala.Civ.App.1995), and Delchamps v. Delchamps, supra, in support of her argument that the divorce judgment should be set aside because it was obtained by duress. In Elliott, this court reversed a trial court’s denial of a Rule 60(b) motion; in Delchamps, we affirmed a trial court’s grant of a Rule 60(b) motion. In both cases, a party had sought to set aside a judgment on the basis of duress. In each case, we held that the trial court was presented with clear and convincing evidence indicating that a spouse had been subjected to improper pressure that overcame the spouse’s will and caused the spouse to yield to demands to which, if the spouse had not been acting under duress, he or she would not have yielded. See Elliott, 667 So.2d at 118; Delchamps, 449 So.2d at 1250. In the present case, the trial court determined either that the wife’s testimony was incredible or that the wife simply failed to show extraordinary circumstances justifying relief under Rule 60(b)(6). Under the ore tenus presumptions that apply here, we find no basis on which to conclude that the trial court was plainly and palpably wrong.

In light of Dr. Fleet’s testimony, the trial court had reason to disbelieve or accord little weight to the wife’s testimony. However, even assuming that the trial court believed the wife’s testimony that she did not understand the provisions of the settlement agreement at the time she signed the papers in the office of the husband’s attorney on October 18, 2000, the trial court could have concluded that the wife understood the import of the agreement by December 2000, when she had consulted two lawyers, but did nothing to prevent the entry of the judgment before January 22, when the court signed the divorce judgment. As this court stated in Delchamps, “the moving party must prove that [s]he was free from fault or negligence in suffering the judgment to be entered.” 449 So.2d at 1250. Moreover, the trial court would have been warranted in finding that the wife took no action to have the divorce set aside until the husband filed a petition to modify the judgment, seeking to have the wife pay child support.

The wife also argues that the divorce judgment should be set aside because, she says, when she signed the settlement agreement she did not sign an “Acknowledgment of Non-Representation,” as required by Rule 1.8(k)(l)-(4), Ala. R. Profl Conduct. That rule states:

“(k) In no event shall a lawyer represent both parties in a divorce or domestic relations proceeding, or in matters involving custody of children, alimony or child support, whether or not contested. In an uncontested proceeding of this nature a lawyer may have contact with the non-represented party and shall be deemed to have complied with this prohibition if the non-represented party knowingly executes a document that is filed in such proceeding acknowledging:
“(1) that the lawyer does not and cannot appear or serve as the lawyer for the non-represented party;
“(2) that the lawyer represents only the client and will use the lawyer’s best efforts to protect the client’s best interests;
“(3) that the non-represented party has the right to employ counsel of the party’s own choosing and has been advised that it may be in the party’s best interest to do so; and
“(4) that having been advised of the foregoing, the non-represented party has requested the lawyer to prepare an answer and waiver under which the cause may be submitted without notice and such other pleadings and agreements as may be appropriate.”

Assuming that there was a breach of Rule 1.8(k)(l)-(4) in this case, that breach would not justify setting aside the divorce judgment. See Gaylard v. Homemakers of Montgomery, Inc., 675 So.2d 363 (Ala.1996). In Gaylard, our supreme court held that the Alabama Rules of Professional Conduct are internal bar regulations that do not affect the admissibility of evidence; the sole remedy for their violation is the “ ‘imposition of [attorney] disciplinary measures.’ ” Gaylard, 675 So.2d at 367 (quoting Terry Cove North, Inc. v. Marr & Friedlander, P.C., 521 So.2d 22, 24 (Ala.1988)).

The parties requests for an attorney fee on appeal are denied.

The judgment of the circuit court is affirmed.

AFFIRMED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    C.J.L. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010214.
    Court of Civil Appeals of Alabama.
    April 25, 2003.
    Ginette A. Dow, Bessemer, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and D. John Harrison and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   MURDOCK, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(C), Ala. R.App. P.; § 26-18-7, Ala.Code 1975; Ex parte State Dep’t of Human Res., 834 So.2d 117 (Ala.2002); Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990); Ex parte Beasley, 564 So.2d 950 (Ala. 1990); In re Moore, 470 So.2d 1269 (Ala. Civ.App.1985); In re Burnett, 469 So.2d 627 (Ala.Civ.App.1985); M.H.J. v. State Dep’t of Human Res., 785 So.2d 372 (Ala. Civ.App.2000); Z.G. v. State Dep’t of Human Res., 717 So.2d 801 (Ala.Civ.App. 1998); E.J.W. v. State Dep’t of Human Res., 709 So.2d 57 (Ala.Civ.App.1998); J.N. v. Calhoun County Dep’t of Human Res., 706 So.2d 1265 (Ala.Civ.App.1997); W.F. v. State Dep’t of Human Res., 704 So.2d 483 (Ala.Civ.App.1997); M.S. v. State Dep’t of Human Res., 648 So.2d 584 (Ala.Civ.App. 1994); J.L.B. v. State Dep’t of Human Res., 608 So.2d 1367 (Ala.Civ.App.1992); F.W.P. v. State Dep’t of Human Res., 606 So.2d 153 (Ala.Civ.App.1992); and S.L. v. State Dep’t of Human Res., 578 So.2d 1372 (Ala.Civ.App.1991).

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

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I dissent because I believe that DHR made little or no effort, after Dr. Blotcky’s psychological evaluation of the mother, to implement the treatment measures that Dr. Blotcky recommended as “mandatory.”