author: SEE, Justice.

text:
    Ex parte CITY OF ORANGE BEACH BOARD OF ADJUSTMENT. (In re Lamar Advertising Company, Inc. v. City of Orange Beach Board of Adjustment.)
    1000645.
    Supreme Court of Alabama.
    Dec. 14, 2001.
    Rehearing Denied March 15, 2002.
    John L. Lawler of Finkbohner, Lawler & Ray, L.L.C., Mobile, for petitioner.

      David S. Conrad of Conrad & Barlar, Mobile, for respondent.

       Stuart, J., was the trial judge in this case.

   SEE, Justice.

Lamar Advertising Company, Inc. (“Lamar”), owns two outdoor advertising billboard structures in Orange Beach. Both were erected before 1991, when the City adopted Zoning Ordinance No. 172. That ordinance provides, in pertinent part:

“15.03 DEFINITIONS
“Except as specifically defined herein, each word used in this article has its customary dictionary definition. For purposes of this article, certain words or terms used are herein defined as follows:
“Dilapidated, Sign
“Any sign which is structurally unsound, has defective parts, or is in need of painting or maintenance.
“Nonconforming Sign
“A sign lawfully erected and legally existing at the time of the effective date of an article, but which does not conform to the new provisions of said code.
“15.0403 Nonconforming Signs
“a. Any sign erected or existing as of the effective date of this article, which has a valid permit from the City of Orange Beach, but which does not conform to the provisions of this article, or any sign pursuant to Section 15.0402(b), is hereby deemed a nonconforming sign. A nonconforming sign may be maintained only by painting or refinishing the surface of the sign face or sign structure so as to keep the appearance of the sign as it was when the prior permit was issued or the City permit tag affixed. Upon a determination by the administrator and notice to the permit-tee that a nonconforming sign has become dilapidated or structurally unsound, such sign shall be moved within twenty days unless an appeal of such determination has been previously filed with the Board of Adjustment. Any structural or other substantive maintenance to a nonconforming sign shall be deemed an abandonment of the nonconforming sign and shall render the prior permit void and shall result in the reclassification of such sign as an illegal sign pursuant to Section 15.0401.”

Lamar’s two billboards apparently were “grandfathered” in as nonconforming signs.

In the fall of 1998, winds resulting from Hurricane Georges caused the sign faces of both billboards to blow away. The Board contends that after the storm the face of one sign was on the ground and the post holding the face had fallen and was twisted. According to the Board’s petition, Lamar hired an independent contractor to repair the hurricane damage. The contractor replaced the faces of the signs, put a metal brace on one sign, and stabilized the other sign by tying cable or support from a tree to the sign. (Petition at 4-5.)

A code-enforcement officer for the Board wrote Lamar two letters, one relating to each billboard. The letters, which were identical, stated:

“The above-mentioned billboard has been deemed structurally unsound — the sign failed under the winds of Hurricane Georges and exhibits serious pitting and deterioration. This billboard is classified as a nonconforming sign, and when/if it becomes dilapidated or structurally unsound, it must be removed.”

Lamar appealed the code-enforcement officer’s decision to the Board of Adjustment; the Board denied the appeal. Lamar appealed the Board’s decision to the circuit court, pursuant to § 11-52-81, Ala.Code 1975. The circuit court denied the appeal, and the Court of Civil Appeals affirmed the circuit court’s decision on direct appeal, without an opinion. See Lamar Adver. Co. v. City of Orange Beach Bd. of Adjustment, (No. 2990143) 795 So.2d 850 (Ala.Civ.App.2000), cert. denied, 807 So.2d 616 (Ala.) (table).

In July 1999, Lamar filed the present action against the Board, challenging the constitutionality of the ordinance. Lamar alleged that the ordinance fails to adequately define significant terms within the ordinance; that it is unconstitutionally vague, overbroad, ambiguous, and arbitrary; and that the arbitrary and capricious enforcement of the ordinance has deprived Lamar of its constitutionally protected property rights. The circuit court entered a judgment denying Lamar’s request that it declare the ordinance unconstitutional. Specifically, the circuit court determined that “[t]he significant terms are adequately defined” and that “[a] person of common understanding and knowledge can clearly understand the provisions of the ordinance.” Lamar moved to alter, amend, or vacate the judgment. The circuit court denied that motion, and Lamar appealed.

The Court of Civil Appeals, in a 3-2 decision, reversed the circuit court’s judgment and declared § 15.0403 of the ordinance unconstitutional because, it reasoned, the terms “dilapidated” and “structurally unsound” are “impermissibly vague and the application of these terms allows unbridled discretion on the part of the Board’s officials.” Lamar Adver. Co. v. City of Orange Beach Bd. of Adjustment, 833 So.2d 46, 50 (Ala.Civ.App.2000). The Board now petitions this Court for certiorari review.

This Court recognizes “that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.” Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000). As a result, this Court defers to a municipal zoning ordinance, and we will review a zoning ordinance only to determine if it is arbitrary or capricious. Id. (citing Homewood Citizens Ass’n v. City of Homewood, 548 So.2d 142, 143 (Ala.1989); Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896, 899 (Ala.Civ.App.1984)). However, in deferring to municipalities in zoning matters, this Court remains cognizant of constitutional concerns:

“ ‘[T]he presumption of a zoning ordinance’s validity must be tempered by the Court’s appreciation of the fact that zoning involves governmental restrictions upon a property owner’s constitutionally guaranteed right to use his or her property, unfettered by governmental restrictions, except where the use violates any law, the use creates a nuisance, or the owner violates any covenant, restriction or easement.’ ”

Budget Inn, 789 So.2d at 158 (quoting PA Northwestern Distrib., Inc. v. Zoning Hearing Bd. of the Township of Moon, 526 Pa. 186, 191, 584 A.2d 1372, 1374 (1991)).

The Board argues that the Court of Civil Appeals’ determination that the zoning ordinance in this case is unconstitutional conflicts with this Court’s decisions in Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950), and Board of Zoning Adjustment for the City of Lanett v. Boykin, 265 Ala. 504, 92 So.2d 906 (1957).

In Walls v. City of Guntersville, supra, this Court addressed the constitutionality of a zoning ordinance that provided, in pertinent part:

“ ‘Any use whatsoever, not in conflict with any other ordinance of the City, is allowed in an Industrial District, provided that no use shall be permitted which would be offensive because of injurious and obnoxious noise, vibrations, smoke, gas, fumes, odors, dust or other objectionable features, or would be hazardous to the community on account of danger of fire or explosion.’ ”

253 Ala. at 484, 45 So.2d at 471. The ordinance further provided that its provisions would “be administered and enforced by the Mayor or the building inspector and or other person delegated by the Mayor to carry out this function for him.” 253 Ala. at 484, 45 So.2d at 470-71. The challenger of the ordinance asserted that the ordinance was an unlawful delegation of power that vested in the delegated agency “an uncontrolled and arbitrary discretion ... to say what is or is not ‘offensive’ within the meaning of the ordinance.” 253 Ala. at 484, 45 So.2d at 471. This Court accordingly framed the ' relevant inquiry as “whether or not [the terms ‘injurious and obnoxious noise, vibrations, smoke, gas,’ etc.] are so vague and indefinite as to furnish no standard of conduct by which the official in charge under the ordinance may be guided.” 253 Ala. at 485, 45 So.2d at 471. In upholding the ordinance against the constitutional challenge and determining that its language did not con-

tain “unusual or ambiguous expressions,” this Court reasoned:

“We must be certain that the ordinance is so plainly and palpably inadequate and incomplete as to be convinced beyond reasonable doubt that it offends the constitution or we will not strike it down.
“ ‘... [Ordinances need not always prescribe a specific rule of action ... some situations require the placing of some discretion in municipal officials, as in cases where it is difficult or impracticable to lay down a definite or comprehensive rule for guidance, or where the discretion relates to the administration of a police regulation and is essential to the protection of the public morals, health, safety, welfare, etc.
“Provisions of such general nature as [in this ordinance] are not uncommon, but are usual in setting out the uses to which property in industrial zones may be restricted. These provisions are uniform in application, the standards set up are not so indefinite as to confer unlimited power and they relate directly to the health and public welfare.”

253 Ala. at 485, 45 So.2d at 471 (citations omitted).

In Boykin, this Court interpreted the term “structural alteration,” as it was used in the City of Lanett’s zoning ordinance, and determined that the actions of the challenging property owner had violated the ordinance. The property owner had made repairs to a nonconforming building, and the City contended that those repairs were not allowed under its ordinance, which prohibited any “structural alteration” to a nonconforming building. Boykin, 265 Ala. at 508, 92 So.2d at 909. This Court held that “the proper test in determining what is a structural alteration to a nonconforming use is whether an existing nonconforming use is extended and the life of the existing nonconforming building prolonged and not whether there is an increase or decrease in the number of square feet utilized by the nonconforming use.” 265 Ala. at 509-10, 92 So.2d at 909.

Relying on Walls and Boykin, the Board asserts that Lamar failed to meet its heavy burden of proving that the ordinance is unconstitutional. Specifically, it argues that the language of the zoning ordinance is clear and unambiguous in that it requires the removal of a nonconforming sign when it becomes structurally unsound. The Board says that the meaning of the terms “dilapidated” and “structurally unsound” can be understood when read in the context of the meaning and intent of the entire municipal code section. (Petition at 9.) The Board further asserts that “Lamar’s signs failed because they were structurally unsound,” and they were structurally unsound because “the beams holding up the face of the signs ... failed to hold the signs in place.” (Brief of petitioner at 13.) According to the Board, Lamar realized that the signs were structurally unsound when its agents “unlawfully braced up the structure of the signs.” (Brief of petitioner at 13.)

The Board’s arguments are meritorious. The Court of Civil Appeals, in finding § 15.0403, the nonconforming-use provision of the zoning ordinance, unconstitutional, relied on City of Mobile v. Weinacker, 720 So.2d 953, 955 (Ala.Civ.App.1998). In Weinacker, the court held that a City of Mobile sign ordinance was unconstitutional because it was “impermissibly vague and ambiguous” and because “it provide[d] the review boards unbridled discretion.” Specifically, the ordinance in Weinacker required that a certificate of appropriateness be obtained for each sign and that all signs that met the “criteria” be approved by the Board. Weinacker, 720 So.2d at 955. However, according to the Court of Civil Appeals, the ordinance did not provide guidelines to use in determining whether a sign is “appropriate,” and, although the “sign-design guidelines” offered some assistance, the guidelines repeatedly used terminology such as “modern materials” and, “modern architectural design,” without defining those terms. Id. Accordingly, that court held, the ordinance was unconstitutional because it was “impermissibly vague and ambiguous.” Id.

The facts of this case are distinguishable from those of Weinacker. The phrase, “structurally unsound,” although it allows for some judgment, is not ambiguous in the manner and to the degree that the terms “modern materials” and “modern architectural design” are.

City ordinances are subject to the same general rules of construction, as are acts of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987), set out the following general rules of statutory construction, which also apply to the construction of municipal ordinances:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the [city council] in enacting the [ordinance]. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the [city council] should be gathered from the language of the [ordinance] itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). If the [ordinance] is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the [ordinance] and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); League of Women Voters v. Renfro, supra.’ ”

In Ex parte Dorough, 773 So.2d 1001, 1003 (Ala.2000) (citing Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999)), this Court stated:

“ ‘ “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” ...
“ ! “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ““ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ ” ’ ”

(Citations omitted.)

Merriam Webster’s Collegiate Dictionary (10th ed.1997) defines “structure” as “something (as a building) that is constructed”; it defines “unsound” as “not firmly, made, placed, or fixed”; and it defines “dilapidated” as “decayed, deteriorated, or fallen into partial ruin esp. through neglect or misuse.” A reasonable person would understand that the condition of the signs after Hurricane Georges was “structurally unsound” and “dilapidated.”

Because it does not appear that, in the context of the ordinance, the terms “structurally unsound” and “dilapidated” are im-permissibly vague and ambiguous so that the ordinance is “plainly and palpably inadequate and incomplete,” Walls, 253 Ala. at 485, 45 So.2d at 471, we reverse the judgment of the Court of Civil Appeals and remand the case to that court for it to order the reinstatement of the judgment of the trial court.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

STUART, J., recuses herself.

      . The Court of Civil Appeals' opinion in the appeal in this case indicates that the ordinance’s constitutionality was not considered in the earlier action because that appeal was taken pursuant to § 11-52-81, Ala.Code 1975. Lamar Adver. Co. v. City of Orange Beach Bd. of Adjustment, 833 So.2d 46 (Ala.Civ.App. 2000). "The practical effect of [§ 11-52-81] is to require the circuit court to sit as a 'glorified board of adjustment.' ... [A]n administrative body has no power to declare an ordinance unconstitutional.” City of Homewood v. Caffee, 400 So.2d 375, 377-78 (Ala.1981).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LAMAR ADVERTISING COMPANY, INC. v. CITY OF ORANGE BEACH BOARD OF ADJUSTMENT.
    2990707.
    Court of Civil Appeals of Alabama.
    April 26, 2002.

      David S. Conrad of Conrad & Barlar, Mobile, for appellant.
    John L. Lawler of Finkbohner, Lawler & Ray, L.L.C., Mobile, for appellee.
   After Remand from the Supreme Court

PER CURIAM.

The Alabama Supreme Court has reversed this court’s judgment of October 27, 2000, and has remanded the case. Ex parte Orange Beach Bd. of Adjustment, 833 So.2d 51 (Ala.2001). In accordance with the Alabama Supreme Court’s opinion, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: PITTMAN, Judge. CRAWLEY, Judge,

text:
    Doris B. THERIS v. Cynde L. McCONNELL.
    2000835.
    Court of Civil Appeals of Alabama.
    Feb. 8, 2002.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010996.
    W.A. Kimbrough, Jr., and Marc E. Bradley, Mobile, for appellant.
    Mark A. Newell of Janecky, Newell, P.C., Mobile, for appellee.
   PITTMAN, Judge.

Affirmed. No opinion.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; Rule 56(e), Ala. R. Civ. P.; Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442 (Ala.1999); Bradford v. Stanley, 355 So.2d 328 (Ala.1978); Law v. Gulf States Steel Co., 229 Ala. 305, 156 So. 835 (1934); Alabama Fuel & Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857 (1921); Gulf Red Cedar Co. v. Walker, 132 Ala. 553, 31 So. 374 (1902).

This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

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

CRAWLEY and MURDOCK, JJ., dissent.

CRAWLEY, Judge,

dissenting.

I dissent. In response to the upper-lot owner’s motion for a summary judgment, the lower-lot owner filed her deposition. The lower-lot owner’s testimony established a genuine issue of material fact on the issue whether an act of God, i.e., heavy rain, caused the flow of surface water onto the lower lot, or whether the flow of surface water was changed from its natural flow and caused to be deposited on the lower lot by construction on the upper lot. Sargent v. Lambert Constr. Co., 378 So.2d 1153 (Ala.Civ.App.1979); Rule 56(c)(3), Ala. R. Civ. P.

MURDOCK, J., concurs.


author: YATES, Presiding Judge. CRAWLEY, Judge,

text:
    Louise DAVIS and Lucious Davis v. Willie James BARNFIELD.
    2001218.
    Court of Civil Appeals of Alabama.
    April 19, 2002.

      James M. Barnes, Jr., Marion, for appellants.
    Robert H. Turner, Marion, for appellee.
   YATES, Presiding Judge.

Louise Davis and her husband, Lucious Davis, appeal from a judgment in favor of Willie James Barnfield concerning a division of land pursuant to an oral contract. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

Louise Davis, Willie Barnfield, and Beatrice Barnfield are siblings. In 1992, Louise purchased a plot of land for $12,000. Willie accompanied Louise to the bank on the day of the purchase, and withdrew $5,000 from his personal account to pay the down payment on the real estate. He also withdrew $250 to pay for the deed. Willie co-signed the installment note with Louise and Lucious, and the settlement statement relating to the loan. The terms of the loan included a monthly payment of approximately $190. Only Louise’s name appears on the contract for sale and the warranty deed.

Louise was not in possession of the land before the purchase, but subsequently, moved onto the land. Willie and their mother had lived on the land, in their own house. Willie had been leasing a house on the land for six or seven years preceding the purchase. After the purchase, Willie made five payments of approximately $190 each to Louise. There is no testimony in the record to indicate that the nature of Willie’s possession changed after the purchase.

At the time of the purchase in 1992, Beatrice lived in Indiana; she subsequently moved her mobile home onto the land, at Louise’s invitation. In 1995, Beatrice began making payments to Willie. She testified that she believed that he was making payments on the land for the three siblings. Beatrice kept a record of the payments made from March 10, 1995, to July 9,1997, totaling $4,935.

The testimony was disputed. Louise testified that on five occasions, Willie gave her $190, and that Beatrice gave her no money. Although Louise claimed that Willie did not give her the money from Beatrice, Willie testified that he gave the money to Louise, and that he had accompanied her to the bank to deposit it each time he had given her a payment. Between them, including the down payment, Willie and Beatrice claim to have paid $10,885 — over 90% of the purchase price. Louise asserts that she and her husband, Lucious, paid all but the $5,000 paid by Willie as a down payment and the five payments of $190.00 from Willie.

Louise testified that she told Willie he had a home for the remainder of his life and that she expected no money in return. Willie claims that Louise never told him he had a “life home.” Louise also testified that she promised to give some land to Beatrice, but that she did not ask for any money in return.

On October 6, 2000, Willie sued Beatrice, Louise, and Lucious for partition of the land and division of the proceeds. On November 10, 2000, Louise and Lucious moved to dismiss. After a hearing, the trial court found that a tenancy-in-common existed among the three siblings, that each possessed an undivided one-third interest in the property, and that the property could be divided without a sale. The court further ordered that Willie contact a licensed surveyor to partition the property, dividing it equitably in such a way as to protect the house site of each party. The court ordered that the necessary instruments of conveyance be executed, with each party sharing the associated costs equally, and bearing their own attorney fees and costs. Louise and Lucious appeal from that judgment.

The trial court is the trier of fact, and its judgment based on its findings of fact is presumed correct. Capitol Constr. Co. v. Alabama Exterior Supply, Inc., 696 So.2d 1087, 1089 (Ala.Civ.App.1997), citing Huprich v. Bitto, 667 So.2d 685 (Ala.1995). Based upon the record, we find that there was sufficient evidence to support the court’s factual finding that an oral contract existed between the parties.

The law clearly states that all contracts for the sale of land must be in writing, or they are void under the Statute of Frauds. § 8-9-2, Ala. Code 1975. There are two circumstances where an oral contract for real property will be enforced: where a party partially performed and took possession of the property, or where fraud existed from the inception of the agreement. Darby v. Johnson, 477 So.2d 322, 326-27 (Ala.1985).

To satisfy the Statute of Frauds, a writing may consist of a note or memorandum. Id. Willie argues that the settlement statement and loan papers he signed could be considered a note or memorandum within the Statute of Frauds, and that the agreement would, therefore, be enforceable. However, those writings do not contain the essential elements of the alleged oral agreement, namely, an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement; therefore, they would not constitute a note or memorandum under the Statute of Frauds. See Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Capitol Constr. Co. v. Alabama Exterior Supply, Inc., supra.

There is only one statutory exception to the provision of the Statute of Frauds relating to contracts for the purchase of land. If “purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller,” then the transaction is excepted from the Statute of Frauds. § 8—9—2(5), Ala.Code 1975. Possession must stem from the alleged agreement, and must be a result of the agreement; in other words, possession must be “ ‘referable exclusively to the contract.’ ” Smith v. Smith, 466 So.2d 922, 924 (Ala.1985), quoting Hagood v. Spinks, 219 Ala. 503, 504, 122 So. 815, 816 (1929). Louise and Lucious argue on appeal that neither Willie nor Beatrice took possession of the land in reliance upon an oral agreement.

In Smith, twin brothers owned adjacent plots of land. One brother conveyed his property to the other brother, with the understanding that the other brother would use the land to secure financing to purchase another plot of adjacent land. The first brother alleged that the second brother agreed to then convey to the first brother a one-half interest in each of the original two properties, so they each would own equal shares of the properties. Smith v. Smith, 466 So.2d at 923. The first brother testified that before the oral contract, he “farmed the land, cleared stumps, put in a temporary road, cleared a site for a lake, cut timber, maintained fences, ‘ran’ cattle, and hunted on the land.” Id. at 926. The first brother testified that after the alleged oral contract, he measured and marked the boundaries of the land he claimed, “grazed cattle on the land periodically, granted permission to third parties to hunt on the land, and cut timber on the land.” Id. at 925-26. The supreme court found that the first brother’s possession was substantially the same before and after the conveyance. Furthermore, the supreme court found that the relationship of parties could account for the first brother’s occupancy of the land. Id. at 926; see also Nelson v. Miller, 479 So.2d 1225, 1226 (Ala.1985). The Smith court speculated that a brother might allow other brothers to possess land without intending to convey ownership, based upon their familial relationship. Smith v. Smith, 466 So.2d at 926.

“ ‘[T]he possession must be referable to the promise and not to some domestic relationship of the vendor and vendee. Where the person having the legal title to land is in possession, it is well established that such possession will be referred to the legal title. Here, the title being in the father, and both father and son being in possession, the law refers the possession to the father. (Citations omitted.)’
“ ‘... If the possession ... could be accounted for just as well by some other right or title actually existing. in the vendee’s favor, or by some relation between him and the vendor other than the alleged oral contract, it is not such a possession as the doctrine requires.’ ”

Id. at 925 (citations omitted) (quoting Jones v. Jones, 219 Ala. 62, 64, 121 So. 78, 78, 79 (1929)).

In the present case, as in Smith, Willie’s possession of the land did not change after he entered into the oral contract. He had lived on the land for six to seven years before the purchase, and he continued to live on the land after the purchase. There is no evidence indicating that his possession of the land was “referable exclusively to the contract.” 466 So.2d at 924. Furthermore, his possession could be accounted for by virtue of his family relationship with Louise, as was the case in Smith. Although it might be argued that Beatrice took possession of her portion of the land after the parties had entered into the oral contract, her possession likewise could be attributed to a familial relationship. Therefore, neither Willie nor Beatrice meets the performance-possession exception to the Statute of Frauds.

In response to Louise and Lu-cious’s arguments on appeal, Willie argues that equity demands that the oral contract be enforced, because, he says, Louise’s actions constitute fraud.

“ ‘ “It is a most important principle, thoroughly established in equity, and applying in every transaction where the statute is invoked, that the statute of frauds, having been enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting, or aiding the party who relies upon it in the perpetration of a fraud, or in the consummation of a fraudulent scheme.” 2 Pomeroy, Eq. Jur. (3d Ed.) § 921, p. 1658.’ ”

Darby v. Johnson, 477 So.2d at 325 (quoting Deming v. Lee, 174 Ala. 410, 414, 56 So. 921, 922 (1911)). However, in order to defeat the Statute of Frauds, the claimant must show fraud, not merely a breach of an oral contract. Darby v. Johnson, 477 So.2d at 326-27. In Darby, two neighbors, who were close friends, entered into an oral agreement. Johnson sought to have the court enforce that agreement. Johnson entered into a written agreement with Darby pursuant to which Darby assumed Johnson’s indebtedness on the land in question in return for Johnson’s conveying a warranty deed to Darby upon complete payment of the debt. Id., at 323. Johnson alleged that Darby agreed to reconvey the parcel to Johnson or her children if he were reimbursed for his payments. Id. at 324. “Both parties and several witnesses testified to the existence of this agreement to reconvey.” Id. Darby refused to recon-vey the property, and Johnson argued that equity should intervene, because Darby admitted to the oral agreement. Id. at 324. The supreme court stated that equity intervenes

“when fraud operates from the beginning [of the agreement]—that is, when the breaching party procured the land or purchase money with no intent to perform the oral agreement admitted to have been made. The cases further require that this fraud be clearly shown. Equity will not intervene when the party merely refuses to perform. To do so would render the Statute of Frauds a nullity in that the Statute is usually raised only when one of the parties breaches the oral agreement.”

Darby v. Johnson, 477 So.2d at 326-327.

The court concluded in Darby that the evidence submitted established an oral agreement, “but the law as applied to the agreement prevents the court’s enforcing the oral agreement because it is void under the Statute of Frauds.” Id., at 327. In the present case, the trial court had sufficient evidence from which to conclude that an oral contract existed. However, there is insufficient evidence to show that fraud existed at the time the oral agreement was made.

In order for the trial court to find that the siblings had an undivided one-third interest in the property, it obviously imposed a constructive trust. A constructive trust may be found when the funds of one party are used to purchase land, but title to the land is taken in the name of another party. A constructive trust is related to an express trust in the same way a quasi-contract is related to a contract. An obligation is imposed not because of the intention of the parties but to prevent an unjust enrichment. Jordan v. Mitchell, 705 So.2d 453, 461 (Ala.Civ.App.1997). A constructive trust may be found only where a fraud or an inequity demand a result that may not be had at law. Rau v. Rau, 429 So.2d 593 (Ala.Civ.App.1982). It must be inequitable to allow the one who holds it to retain the property. Brothers v. Fuller, 607 So.2d 135 (Ala.1992).

“ ‘ “A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” ’ ”

Brown v. Brown, 604 So.2d 365, 370 (Ala.1992)(quoting American Family Care, Inc. v. Irwin, 571 So.2d 1053, 1058 (Ala.1990), quoting in turn Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380 (1919)).

Where evidence is presented ore tenus, a presumption of correctness exists as to the court’s findings of fact; its determination will not be disturbed unless clearly erroneous or manifestly unjust. Herston v. Austin, 603 So.2d 976 (Ala.1992)(following ore tenus proceedings the trial court correctly concluded that a constructive trust was appropriate because it would be unjust for the son to keep the certificate of deposit and other moneys transferred to him for the benefit of his mother); Kite v. Kite, supra, (the imposition of a constructive trust upon property was supported by the evidence in a divorce case where equity would not allow the husband to retain a property interest in property deeded to the mother-in-law, the husband, and the wife, for sole purposes of aiding the husband and wife in obtaining a loan).

“A constructive trust is a creature of equity which operates to prevent unjust enrichment. When a trial judge exercises his equitable discretion and imposes a constructive trust, we will not disturb his decision unless it is clearly erroneous .... ‘The issue of whether or not a constructive trust results is one of fact and ... when the evidence is [presented] ore tenus the trial court’s finding of fact will not be disturbed unless it is clearly erroneous or manifestly unjust.’ ”

Holman v. Kruk, 485 So.2d 715, 716 (Ala.1986) (citation omitted).

In Hall v. Hall, 587 So.2d 1198 (Ala.1991), the estate of L.C. Hall, Sr., sued his son seeking the imposition of a constructive trust on the home that the son had purchased for the father, but that was in the son’s name. The father gave the son $35,000 for the purchase of the home, with the understanding that title to the house would initially be in the son’s name, but would later be deeded to the father. The son did not respond to the complaint, and the trial court entered a default judgment awarding a general warranty deed in the property to the estate, as well as $50,000 in punitive damages and $8,000 in attorney fees. The son filed a Rule 60(b), Ala. R. Civ. P., motion to set aside the judgment, which the trial court denied, and the supreme court affirmed the trial court’s judgment. In Hall, the father had paid a lump sum up front for the home; in the present case, Willie made a $5,000 down payment and paid $250 for the deed, and Beatrice made payments over time, but both cases rely upon an underlying oral agreement that the court enforced through the imposition of a constructive trust.

In Putnam v. Putnam, 274 Ala. 472, 150 So.2d 209 (1963), the wife purchased property with moneys from a joint bank account; although it was a joint account, the moneys in the account were exclusively from the husband’s income. The deed was in the wife’s name only, but she understood that her husband could be added later as a joint tenant. Subsequently, the parties divorced and the wife sold the property, which remained in her name only. The supreme court found:

“In purchasing this property, Mrs. Putnam was acting as the agent of her husband so far as his interest was involved. She was intrusted with the management and purchase. It was distinctly understood, according to the testimony of [the] complainant and the admissions of Mrs. Putnam on the trial of this case, that the transfer of the property was to be for the benefit of both. It was her duty to have had the conveyance made to both, or if to herself alone for any reason, then to have had a trust in his favor distinctly declared in the conveyance.... Whether intentional or not, Mrs. Putnam violated the confidence accorded her in closing the transaction to the exclusion of the interest of the complainant.”

274 Ala. at 476, 150 So.2d at 213.

The supreme court in Putnam went on to hold that the husband was entitled to have a trust imposed on the proceeds of the sale, and it reversed the trial court’s judgment denying the husband that relief. Although the couple in that case was married, that case is analogous to the present case in several important aspects. First, the parties were related in a way that would account for the husband’s joint possession of the land. Second, his interest in the property was based on an understanding that could only be construed as an oral agreement. Finally, the husband provided the money for the payments on the property.

In Jordan v. Mitchell, supra, 705 So.2d 453, a husband and wife resumed living together after they were divorced. The ex-wife funded the building of a house on property that belonged to the ex-husband. The trial court refused to impose a constructive trust for the value of the improvements. This court held that a constructive trust may be impressed upon property when the grantee of the property has abused a “confidential relationship” with the grantor. There is no presumption that a confidential relationship exists between unmarried coinhabitants. Rather,

“A confidential relationship exists when ‘confidence is reposed by one party in another, and the trust or confidence is accepted under circumstances which show that it was founded on intimate personal and business relations existing between the parties, which gave the one [advantage or] superiority over the other.’ Kite v. Kite, 444 So.2d 863, 865 (Ala.Civ.App.1983)(quoting Cannon v. Gilmer, 135 Ala. 302, 304-05, 33 So. 659, 659 (1903)). Once a confidential relationship has been shown, ‘[t]he burden of proving that the transaction was fair and righteous is on the one receiving or acquiring the benefit.’ Id.”

705 So.2d at 461. We held that the ex-wife was not entitled to a constructive trust, because she failed to prove that a confidential relationship existed between hér and her ex-husband. The ex-husband did not actively induce her to contribute to the improvements, and the ex-wife did not rely on any promise that the ex-husband would remarry her or share the property with her. Also, this court found that if either had a superior position with regard to financial matters, it was the ex-wife, because she handled the finances while they were cohabiting.

In contrast to Jordan, a confidential relationship existed in the present case, because the parties were siblings, and there was evidence that Louise was to purchase the land for the three of them. Louise abused that relationship when she accepted the down payment from Willie and the payments from Beatrice, and then deeded the property in her name alone.

The dissent relies on Morgan v. Tate, 445 So.2d 273 (Ala.1984). However, Morgan is distinguishable from the present case. In Morgan, the plaintiffs sought reformation of a deed based on a mistake of law. The plaintiffs were siblings, and they conveyed property to their unmarried sister with a life estate to their mother. The mother died. Subsequently, the sister married. The sister then died, and her husband stood to inherit the property based on a change in the law of descent and distribution. The plaintiffs argued that because of their relationship with their sister, they “could have urged [the sister] to write a will leaving the property to them after she married or after the law of descents changed.” 445 So.2d at 275. In response to this argument as to what the plaintiffs could have done, the court stated: “Equity aids the diligent, not those who negligently fail to take advantage of a remedy.” Id. In the present case, Willie and Beatrice paid Louise with an expectation that she was purchasing the property for the three of them. In contrast, the plaintiffs in Morgan failed to take any action and were relying on what they could have done.

The Morgan court also distinguishes that case from Cole v. Adkins, 358 So.2d 447 (Ala.1978), in which the court had established a constructive trust. In Cole, the transferor expected his mother to recon-vey the property by deed or will; therefore, a constructive trust was imposed. In Morgan, the plaintiffs were not expecting the sister to take any action to reconvey the property. Therefore, the Morgan court held that reformation of the deed was not available to change the deed to grant only a life estate to the sister.

Based on the foregoing, it would be inequitable for title to the property to remain only in Louise’s name. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

THOMPSON and PITTMAN, JJ„ concur.

CRAWLEY and MURDOCK JJ., dissent.

CRAWLEY, Judge,

dissenting.

I agree that the statutory part-payment exception to the Statute of Frauds does not apply in this case. See § 8—9—2(5), Ala.Code 1975; West v. McKay, 225 Ala. 397, 143 So. 573 (1932). I also agree that there was insufficient evidence to indicate that Louise Davis was guilty of fraud at the inception of the alleged oral agreement she entered into with her brother Willie and her sister Beatrice. See Darby v. Johnson, 477 So.2d 322 (Ala.1985). I disagree, however, that the alleged oral agreement can be enforced by means of the imposition of a constructive trust. See Jordan v. Mitchell, 705 So.2d 453 (Ala.Civ.App.1997).

The only possible ground for imposing a constructive trust in this case would be the abuse of a confidential relationship, and there was no evidence indicating that Louise Davis and her two siblings had such a relationship. The mere fact that they were siblings is not enough. See Jordan v. Mitchell, 705 So.2d at 461 (stating that a confidential relationship “is not established merely by proof that the parties had a ‘close and affectionate’ connection”).

“A confidential relationship exists when ‘confidence is reposed by one party in another, and the trust or confidence is accepted under circumstances which show that it was founded on intimate personal and business relations existing between the parties which gave the one [advantage or] superiority over the other.’ ”

705 So.2d at 461 (emphasis added) (quoting Kite v. Kite, 444 So.2d 863, 865 (Ala.Civ.App.1983)) (bracketed material added by the court in Jordan v. Mitchell).

“ ‘Relevant facts to be considered include the degree of kinship, as well as disparity in age and business experience, and the extent to which the allegedly servient party entrusts the handling of his or her business and financial affairs to the other.’ ”

705 So.2d at 461-62 (quoting Edwards v. Miller, 61 Ill.App.3d 1023, 1027, 19 Ill.Dec. 82, 85, 378 N.E.2d 583, 586 (1978)).

In Morgan v. Tate, 445 So.2d 273 (Ala.1984), the supreme court explained that a confidential relationship

“includes the situation ‘where, because of family relationship or otherwise, the transferor is in fact accustomed to be guided by the judgment or advice of the transferee or is justified in placing confidence in the belief that the transferee will act in the interest of the transfer- or.’ ”

445 So.2d at 275 (quoting Cole v. Adkins, 358 So.2d 447, 449 (Ala.1978)) (emphasis in Cole).

In the present case, there was no evidence indicating that Willie and Beatrice had habitually entrusted Louise with the handling of their financial affairs, or that they were accustomed to being guided by her business judgment, or that they reposed such confidence in her that she had thereby gained an advantage or superiority over them.

The evidence indicates that Willie was present at the loan closing, that he paid to have the deed prepared, and that he was aware — from the beginning — that his name was not on the deed. When he was asked at trial why his name was not on the deed, Willie did not say, “I don’t know; I trusted Louise to do right by me.” Instead, he replied, “That’s what I wanted to know, why it wasn’t on the deed.” If Willie thought he and his sister Beatrice were buying the property equally with Louise, he could have demanded that he (or they) be named as grantees. “Equity aids the diligent, not those who negligently fail to take advantage of a remedy.” Morgan v. Tate, 445 So.2d at 275.

Beatrice testified that her dealings as to the purchase of the property were solely with Willie. She said that she never even talked to Louise about buying the land. Willie and Beatrice did not establish with Louise the existence of a “confidential relationship,” as that term has been defined by our cases. Therefore, they were not entitled to have a constructive trust imposed upon the property for their benefit.

      . Lucious is named as an appellant in this case. Although Lucious cosigned a bank loan on the property, that loan has been repaid and is not an issue in this case. Only Louise is named in the contract for sale and the warranty deed. Therefore, Lucious has no apparent ownership interest in the property. However, no one raises the issue of whether Lucious is a proper party to this appeal.

      . Although the trial court did not use the term "constructive trust," that is in effect what the judgment imposes. "If the ultimate decision of a trial court is correct, the judgment will be upheld even if for reasons other than those given by the trial court.” Kite v. Kite, 444 So.2d 863, 865 (Ala.Civ.App.1983)(imposing a constructive trust without specifically stating so).


author: THOMPSON, Judge.

text:
    Chris TUCKER v. Junior MORGAN.
    2010395.
    Court of Civil Appeals of Alabama.
    April 19, 2002.
    Garve Ivey, Jr., of Ivey & Ragsdale, Jasper, for appellant.

      Phillip M. Whitehead, Boonesville, Mississippi, for appellee.
   THOMPSON, Judge.

On March 23, 1999, Junior Morgan filed a complaint against Chris Tucker, alleging that Tucker was wrongfully in possession of a 1966 Ford Mustang convertible automobile (hereinafter “the vehicle”) owned by Morgan; in that same petition, Morgan also sought a summary judgment. On April 9,1999, Tucker filed an answer denying all the material allegations of Morgan’s complaint and asserting that he was a bona fide purchaser for value of the vehicle. In his answer, Tucker also asserted the affirmative defenses of laches and unclean hands.

On June 14, 1999, Morgan amended his complaint to add another party to the action. On July 11, 1999, Tucker filed an answer to Morgan’s amended complaint, asserting as a counterclaim unjust enrichment. Tucker also filed a response to Morgan’s summary-judgment motion. On October 5, 1999, Tucker filed a motion for a summary judgment, to which Morgan responded on November 4,1999.

Morgan’s March 23, 1999, complaint and summary-judgment motion were signed by both an Alabama and a Mississippi attorney. Several other pleadings and motions were filed in the action; however, those were signed by only the Mississippi attorney. On March 6, 2001, Tucker filed a motion seeking to strike all of Morgan’s pleadings and motions with the exception of the initial complaint and summary-judgment motion because, Tucker asserted, those pleadings and motions were filed and signed by a Mississippi attorney who was not licensed to practice law in Alabama. The trial court denied Tucker’s motion. On that same date, Tucker filed a response to Morgan’s summary-judgment motion asserting that Morgan’s summary-judgment motion failed to comply with Rule 56, Ala. R. Civ. P. On May 8, 2000, the Mississippi attorney filed a motion with the trial court to practice in Alabama pro hac vice. The trial court purported to grant that motion on June 7, 2000.

On April 27, 2001, the trial court entered an order granting Morgan’s summary-judgment motion and denying Tucker’s summary-judgment motion. On April 30, 2001, the trial court modified its April 27, 2001, order, finding in favor of Tucker on his unjust-enrichment counterclaim and reserving jurisdiction to determine the amount of the damages award. The trial court certified its order regarding the parties’ summary-judgment motions as final pursuant • to Rule 54(b), Ala. R. Civ. P. Tucker filed a motion to alter, amend, or vacate the trial court’s judgment; that motion was denied by operation of law. Tucker appealed to the Supreme Court of Alabama. The Supreme Court of Alabama transferred the action to this court pursuant to § 12-2-7(6), Ala.Code 1975.

A brief recitation of the facts is all that is necessary for the disposition of this appeal. The record indicates that in 1996, Morgan, a resident of Mississippi, owned a 1966 Ford Mustang convertible automobile. Morgan asserts that in August 1996, he allowed Jim Chambers to take the vehicle to Alabama to have it cleaned and to determine whether Chambers was interested in purchasing the vehicle. Morgan gave Chambers a signed bill of sale for the vehicle; however,' Morgan asserts that none of the terms of the bill of sale were completed and that, other than the line for his signature, none of the blanks on the bill of sale had been completed. Chambers did not return the vehicle to Morgan, and Morgan asserts that he was unable to locate Chambers or the vehicle. The record indicates that, on September 10, 1996, Chambers sold the vehicle to Tucker and that at the time Morgan filed his March 23, 1999, complaint, Tucker was in possession of the vehicle.

On appeal, Tucker asserts that the trial court erred in failing to strike all of Morgan’s pleadings and motions signed by an attorney not licensed to practice law in Alabama, and who had not properly sought permission to practice in front of an Alabama court. Pursuant to Rule VII(A), Rules Governing Admission to the Alabama State Bar, an attorney may appear as counsel pro hac vice upon compliance with Rule VII. Rule VII(D), Rules Governing Admission to the Alabama State Bar, states that an attorney

“shall file with the court or agency where the cause is pending a verified application for admission to practice' (a form for such an application follows this rule), together with proof of service by mail, in accordance with the Alabama Rules of Civil Procedure, of a copy of the application and of the notice of hearing upon the Alabama State Bar at its Montgomery, Alabama, office.... The copy of the application and the notice of hearing served upon the Alabama State Bar shall be accompanied by a nonrefundable $100 filing fee. The notice of hearing shall be given at least 21 days before the time designated for the hearing, unless the court or agency has prescribed a shorter period....
“Upon receipt of any application for admission, the Alabama State Bar shall file with the court or agency and serve upon all counsel of record, or upon any parties not represented by counsel, and upon the applicant, before the scheduled hearing date, a statement indicating whether the applicant or other attorney members of the firm with which he or she is associated have previously made any application for admission, the date of such application, and whether it was granted. No application shall be granted before this statement of the Alabama State Bar has been filed with the court or agency. Once this statement is received, the court or administrative agency shall issue an order granting or denying the application.”

(Emphasis added.)

An application to practice in Alabama pro hac vice must be “on a form approved by the Alabama State Bar and the Supreme Court.” Rule VII(E), Rules Governing Admission to the Alabama State Bar. Further, Rule VII(J), Rules Governing Admission to the Alabama State Bar, states:

“No court clerk or filing officer of any administrative agency of this state shall accept for filing any pleadings or other documents from a foreign attorney who has not complied with the requirements of this rule. Any pleadings or other documents filed in violation hereof shall be stricken from the record upon the motion of any party or by the court or administrative agency sua sponte.
“... Violation of this rule is deemed to be the unlawful practice of law.”

When a foreign attorney fails to comply with the mandatory language of Rule VII, the pleadings and other documents filed by that attorney are a “nullity.” Black v. Baptist Med. Ctr., 575 So.2d 1087, 1088 (Ala.1991).

Morgan’s March 23, 1999, complaint and summary-judgment motion are signed by an attorney licensed to practice law in Alabama. The remainder of Morgan’s pleadings are signed by only Morgan’s Mississippi attorney. The record indicates that Morgan’s Mississippi attorney did not comply with Rule VII. Thus, we conclude that the trial court erred in failing to strike Morgan’s pleadings and motions filed after his initial complaint and summary-judgment motion. For purposes of this appeal, we will consider only Morgan’s initial complaint and the summary-judgment motion, which were properly filed.

Tucker also asserts that the trial court erred in entering a summary judgment in favor of Morgan because, he argues, Morgan’s summary-judgment motion fails to set out a summary of undisputed facts as required by Rule 56, Ala. R. Civ. P.

“A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Lawson State Comm. College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988). However, a party moving for a summary judgment always bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that it argues demonstrate the absence of a genuine issue of material fact. Id.
“Rule 56(c)(1), Ala. R. Civ. P., requires that a motion for summary judgment ‘be supported by a narrative summary of what the movant contends to be the undisputed material facts.’ Although it may be included in the motion or may be separately attached as an exhibit, the rule clearly requires that a narrative summary be included with any motion for summary judgment. The narrative summary must include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on in determining whether a genuine issue of material fact exists.
“A summary judgment is not proper if the movant has not complied with the requirements of Rule 56. Moore v. ClaimSouth, Inc., 628 So.2d 500 (Ala.1993); see also Thompson v. Rehabworks of Florida, Inc., 727 So.2d 807 (Ala.Civ.App.1997), Hale v. Union Foundry Co., 673 So.2d 762 (Ala.Civ.App.1995).”

Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276-77 (Ala.2000).

Morgan’s initial complaint states that that pleading is also a motion for a summary judgment. Morgan attached his affidavit and a copy of the vehicle’s certificate of title to the initial complaint and summary-judgment motion. Morgan’s complaint, however, does not contain a narrative summary of undisputed facts with specific references to pleadings, materials, or affidavits that the trial court could have relied on in determining whether genuine issues of material fact existed, nor did Morgan attach as an exhibit a narrative summary of undisputed facts. We conclude that Morgan failed to meet his initial burden of proof because his summary-judgment motion failed to comply with the requirements of Rule 56(c)(1). See Northwest Florida Truss, Inc. v. Baldwin County Comm’n, supra. See also Moore v. ClaimSouth, Inc., 628 So.2d 500 (Ala.1993); Thompson v. Rehabworks of Florida, Inc., 727 So.2d 807 (Ala.Civ.App.1998).

Further, Morgan’s initial complaint purports to be both a complaint and a motion for a summary judgment. Pursuant to Rule 56(a), Ala. R. Civ. P., a plaintiffs motion for a summary judgment may not be filed until 30 days after the plaintiffs initial pleading. Therefore, we conclude that Morgan’s summary-judgment motion was premature. See Rule 56(a), Ala. R. Civ. P. Thus, we conclude that the trial court erred in entering a summary judgment in favor of Morgan. See Northwest Florida Truss, Inc. v. Baldwin County Comm’n, supra.

The summary judgment in favor of Morgan is reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs in the result.

      . Morgan’s initial pleading is titled ‘'Complaint in Replevin and Motion for Summary Judgment.”

      . On January 25, 2000, the trial court entered an order dismissing that party; that party is not before this court on appeal.

      . Tucker asserts that Chambers showed him the bill of sale from Morgan and that at that time the bill of sale was completed.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    Brenda DOUGLAS v. DEVONSHIRE APARTMENTS, L.L.C.
    2010200.
    Court of Civil Appeals of Alabama.
    April 26, 2002.

      Carl E. Chamblee, Jr., of Chamblee, Furr, Ennis & Weems, L.L.C., Birmingham, for appellant.
    Dorothy A. Powell and Deborah Ann Wakefield of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

Brenda Douglas sued Devonshire Apartments, L.L.C. (“Devonshire”), seeking to recover damages for personal injuries sustained when she fell while in the parking lot on Devonshire’s premises. Douglas alleged that she was a business invitee of Devonshire’s. She further alleged that Devonshire had negligently maintained its parking lot and that its negligence had caused her injuries. On July 13, 2001, Devonshire moved for a summary judgment; the trial court granted her motion on September 7, 2001. Douglas appealed to the supreme comet, which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In reviewing the disposition of a motion for a summary judgment, we use the same standard the trial court used. See Rule 56(c), Ala. R. Civ. P. Rule 56(c)(1) sets out a two-part standard for summary judgments. The trial court must determine (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). Furthermore, to defeat a properly supported motion‘for a summary judgment, the non-movant must ■ present “substantial evidence” to support the claim. See § 12-21-12, Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, this court must view the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The evidence, viewed in a light most favorable to Douglas, indicates that she had been employed with the United States Postal Service as a mail carrier for approximately seven years at the time of her fall. In April 2000, Douglas’s route included the Devonshire Apartments. She had been working that route for five months before the accident. The Devonshire stop was the only one on her route that required her to get out of her postal truck and place the mail in “lock boxes.” Douglas stated that she was familiar with the route and with the area where the “lock boxes” were located.

On April 11, 2000, Douglas entered the Devonshire parking lot and parked next to lock box five, where she had never previously parked.. She stated that she usually parked directly in front of lock box five, but on this occasion a vehicle was parked in her normal location, causing her to park elsewhere. Douglas testified that she stepped down out of the postal truck with her right foot first, then with her left foot, and then she fell in a hole. Douglas broke her right ankle and fractured her left ankle.

To recover in a premises-liability action based on a fall, a plaintiff must prove (1) that her fall was caused by a defect or instrumentality located on the defendant’s premises, (2) that the fall was the result of the defendant’s negligence, and (3) that the defendant had or should have had notice of the defect or instrumentality before the accident. Logan v. Winn-Dixie Atlanta, Inc., 594 So.2d 83, 84 (Ala.1992). Douglas was an invitee of Devonshire’s. Devonshire owed a duty to Douglas to “use reasonable care and diligence to keep the premises in a safe condition or, if the premises were in a dangerous condition, to give sufficient warning so that an invitee might avoid danger by the use of ordinary care.” Boudousquie v. Marriott Mgmt. Servs. Corp., 669 So.2d 998, 1000 (Ala.Civ.App.1995). Devon-shire’s duty to warn is limited to hidden defects that are unknown to the invitee and that would not be discovered by him or her in the exercise of ordinary care. Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158, 161 (Ala.1997). The owner of the premises is not an insurer of the safety of the invitee, and no presumption of negligence arises out of the mere fact of an injury to the invitee. Id.; see also Tice v. Tice, 361 So.2d 1051, 1052 (Ala.1978).

The premises owner has no duty to warn the invitee of open and obvious defects in the premises, of which the invitee is aware or should be aware through the exercise of reasonable care. Id.; see also Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980). A condition is “obvious” if the risk is apparent to, and -of the type that would be recognized by, a reasonable person in the position of the invitee. See Hartzog v. Compass Bank, 686 So.2d 325 (Ala.Civ.App.1996); Hines v. Hardy, 567 So.2d 1283, 1284 (Ala.1990). The question of the openness and obviousness of a danger is generally not to be resolved on a motion for a summary judgment. See Harris v. Flagstar Enters., Inc., 685 So.2d 760, 762-3 (Ala.Civ.App.1996); Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 463 (Ala.1993).

Douglas testified that she was familiar with the area around the lock boxes and that she was not aware of any holes near the lock box; however, she did state that she was aware of an “indentation” in the asphalt that runs across the parking lot, because she would have to drive the postal truck over it to get to the particular lock box in question. The evidence indicates that the indentation runs the length of the parking lot and ends in the hole beside the curb.

Douglas testified that when she got out of the postal truck her view of the parking lot and curb in front of her was unobstructed. She further stated that although she did not see the hole before she fell, nothing prevented her from seeing it. Douglas viewed the hole following the accident after it had been filled in by Devon-shire and stated that it was “in the open.” As was the case with the plaintiff in Mountain Top Indoor Flea Market, supra, had Douglas been exercising ordinary care, she would have seen the hole before stepping out of the postal truck and avoided injury. Because the hole was not a hidden defect that Douglas could not have discovered by exercising reasonable care for her safety, Devonshire had no duty to warn her of any unsafe condition near the lock boxes. Under the specific facts of this case, we conclude that the trial court correctly entered a summary judgment for Devonshire.

AFFIRMED.

CRAWLEY and THOMPSON, JJ., concur.

MURDOCK, J., concurs in the result.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

The record indicates that Douglas was not aware of the defect in the parking lot beside the curb, which caused her to fall, and that she was careful to watch where she was going as she got out of her vehicle before the fall.

Jean Fryman, the manager of the Devonshire Apartments at the time of Douglas’s injury, revealed her prior knowledge of the area of the parking lot in question and described it as an “indention that went all the way across the parking lot, and then it kind of dipped up next to the curb.” She further stated that no precautionary measures were taken before Douglas’s injuries to warn of the “dip” in the area around the “lock box.”

I believe that a thorough review of the record indicates that a question of fact exists as to the obviousness of the hole. Questions of the openness and obviousness of a danger are generally left for the jury to decide. Harris v. Flagstar Enters., Inc., 685 So.2d 760, 762-63 (Ala.Civ.App.1996). Therefore, I must dissent.