author: THOMPSON, Presiding Judge.

text:
    Warren D. BLACKBURN and Kathleen A. Berube v. Paul E. LEFEBVRE and Patricia R. Lefebvre.
    2060312.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      C. Robert Gottlieb, Jr., Mobile; and Edward S. Sledge III and William G. Chason of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for appellants.
    C. Britton Bonner, Richard 0. Kingrea, and Matthew J. Landreau of Bonner Lan-dreau Kingrea, LLC, Foley, for appellees.
   THOMPSON, Presiding Judge.

Paul E. Lefebvre (“Lefebvre”) and Patricia R. Lefebvre (hereinafter collectively referred to as “the Lefebvres”) sued Warren D. Blackburn (“Blackburn”) and his wife, Kathleen A. Berube, in October 2005, seeking, among other relief, a judgment declaring the rights of the parties to access and use a boat slip and pier owned by and adjacent to real property owned by Blackburn and Berube (hereinafter collectively referred to as “the Blackburns”). The Blackburns counterclaimed, seeking, among other things, certain declaratory relief.

The trial court conducted an ore tenus hearing on October 17, 2006. On November 16, 2006, the trial court entered an order resolving the claims for declaratory relief. The trial court certified the November 16, 2006, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The Blackburns timely appealed the trial court’s judgment to our supreme court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Factual and Procedural Background

The central issue in this appeal is whether the Lefebvres have a right to access and use a boat slip and pier that extends from the Blackburns’ real property into Palmetto Creek. The evidence received by the trial court showed the following relevant facts. In 1998, Mary Marler (“Marler”) and her now deceased husband created a family subdivision of three contiguous lots. Only one of the lots, parcel A, was adjacent to Palmetto Creek. Parcel B was between parcel A and the third lot, parcel C, which was adjacent to parcel B and to a public road. The deeds to the three lots each include an easement (“the common easement”) that provided the respective property holders access to the public road and to Palmetto Creek. The common easement is not at issue in this dispute.

After the creation of the family subdivision, Marler and her husband retained ownership of the waterfront lot, parcel A. The Marlers sold parcel B to Marler’s son Tracey L. Thompson and his wife Beverly J. Thompson. The Marlers sold parcel C to Marler’s sister, Barbara Gail Belew, and her husband Michael Belew. The Marlers built a pier and boat slip on parcel A, and they allowed their family members to use those structures.

On May 10, 2004, the Lefebvres, who are not related to the Marlers, purchased parcel B from the Thompsons. On that same date, the Lefebvres also entered into an agreement (“the boat-slip agreement”) with Marler, the Thompsons, and the Be-lews that specified that the Lefebvres would have certain rights relating to the use of the pier and boat slip located on parcel A. Specifically, the boat-slip agreement provided:

“AGREEMENT RE: ACCESS AND USE OF BOAT SLIP
“Comes now, PAUL E. LEFEBVRE, and PATRICIA R. LEFEBVRE, hereinafter referred to as ‘Purchasers’ and TRACEY L. THOMPSON and BEVERLY J. THOMPSON, hereinafter referred to as ‘Sellers’, MARY MARLER, MICHAEL CHARLES BELEW and BARBARA GAIL BELEW, hereinafter referred to as ‘Owner’ and would enter into this agreement to grant to the Purchasers of that certain real property located at 8649 Escambia Avenue, Elber-ta, Alabama the right to use a boat slip located on property owned by Mary Marler, Michael Charles Belew, Barbara Gail Belew and/or Tracey L. Thompson and Beverly J. Thompson[]
“The parties agree that the Purchasers shall be entitled to an easement to access and use the existing boat slip currently being used by the Sellers. This right shall accrue only to the benefit of the Purchasers and shall be nonassignable by them and shall not run with the property. Any improvements or alterations to the easement for access to the boat slip, or to the boat slip itself shall require the approval, in writing, of all owners of the property over which the easement runs and where the boat slip is constructed. Purchasers agree to have all owners of the property over which the easement and boat slip runs to sign an agreement to this effect.
“SEE EXHIBIT ‘A’ ATTACHED HERETO AND MADE A PART HEREOF.
“The Purchasers agree to pay the sum of Two Hundred Dollars ($200.00) per annum to Marler. Said payments are to be due on or before October 1st of each year, commencing with October 1, 2004.
“This ‘Family Subdivision’ was established with the understanding that all three owners will have equal access to easement, dock and boat slips.
“Executed on this the 10th of May, 2004.”

(Capitalization in original.)

At the time the Lefebvres purchased parcel B and the house located on that property, Marler had not built a house on parcel A, and the Belews had not built a house on parcel C. At the hearing before the trial court, Lefebvre testified that, before he purchased parcel B, he discussed the use of the pier and boat slip with Tracey Thompson and that he demanded “something” from Tracey Thompson in writing that would guarantee the Le-febvres’ right to use the pier and boat slip. Lefebvre explained that the only reason the Lefebvres purchased parcel B was so that they could use the boat slip. Tracey Thompson acknowledged that the Le-febvres were only interested in purchasing parcel B if they also obtained the accompanying right to use the pier and boat slip. The boat-slip agreement, which specified that the rights conveyed in that agreement were also subject to the common easement, was recorded in the probate records of Baldwin County.

After the Lefebvres purchased parcel B in May 2004, the Lefebvres used the pier and boat slip. In October 2004 they paid Marler $200 pursuant to the terms of the boat-slip agreement. The Lefebvres also left some of their personal property on the pier itself or upon the real property they traversed in order to use the pier.

In September 2004 Hurricane Ivan damaged the pier. The Lefebvres repaired the pier. Although the Lefebvres did not obtain permission from Marler (or the other parties to the boat-slip agreement) before conducting those repairs, Marler did not object to them.

In April 2005, the Blackburns purchased parcel A from Marler. The Blackburns knew of the existence of the boat-slip agreement before they purchased parcel A. In order to alleviate the Blackburns’ concerns, Marler executed an affidavit that stated, among other things, that Marler intended to give the Lefebvres a license to use the pier and boat slip and that it was not her intent to create an easement in favor of the Lefebvres. Marler also testified at the hearing that she intended only to grant the Lefebvres a license. However, on cross-examination, Marler admitted that she did not know the difference between a license and an easement and that she thought a license and an easement were “virtually the same thing.”

The warranty deed by which Marler conveyed parcel A to the Blackburns contained a description of the boundaries of parcel A, including the pier and boat slip, as well as the description of the common easement. When the Blackburns obtained title insurance to the property, the insurance company excluded the pier and boat slip from coverage.

According to Lefebvre, after the Black-burns purchased parcel A, the Blackburns denied his right to use the pier and boat slip. Blackburn testified that, initially, he gave the Lefebvres permission to use the pier and boat slip but that he revoked that permission when the dispute among the parties arose.

Over the Memorial Day weekend in May 2005, the parties had a discussion in which the Lefebvres told the Blackburns that they wanted to build a separate pier on the Blackburns’ property and into Palmetto Creek. The Blackburns informed the Le-febvres that they did not want another pier on their property. In July 2005, when the Blackburns and their daughters arrived at their house on parcel A for the Fourth of July weekend, they discovered that Lefebvre had removed the deck boards on the pier but that he had left the structural supports for the pier in place. During the hearing, the trial court stopped the parties’ attempts to present evidence regarding that incident. The trial court indicated that it recalled testimony on that issue taken at an earlier hearing on a petition for a preliminary injunction. The record does not contain a transcript of that earlier hearing, and, therefore, the details of the incident are not before this court. Although it is clear that at the time of the hearing the deck boards on the pier had been replaced, the record does not indicate which party replaced the deck boards.

At the October 17, 2006, hearing, the Blackburns presented evidence indicating that the Lefebvres had not paid them the $200 annual payment referenced in the boat-slip agreement for the years 2005 and 2006. Tracey Thompson testified that he insisted that the boat-slip agreement require the annual payment to Marler to help Marler defray the costs of property taxes on parcel A. Lefebvre testified that he believed that the provision of the boat-slip agreement requiring him to pay $200 per year was only effective as long as Marler owned the property. Marler also testified that she believed that that provision applied for as long as she owned the property. Lefebvre testified that he had not paid, and did not intend to pay, the Blackburns for the use of the pier and boat slip.

The Blackburns also attempted to demonstrate that the Lefebvres violated the terms of the boat-slip agreement by “assigning” their rights under that agreement. The record indicates that Lefebvre allowed a friend, Thomas Bailey, to use the boat slip while repairs were being made to Bailey’s own, storm-damaged boat slip.

The trial court’s November 15, 2006, judgment stated, in relevant part:

“It is hereby ORDERED, ADJUDGED, DECREED that:
“1. On April 13, 2005, [the Black-burns] purchased Parcel A in the family subdivision, including the pier, from Mary E. Marler as demonstrated by a warranty deed marked as [the Black-burns’] Exhibit J. [The Blackburns] own the pier in fee simple.
“2. According to [the Blackburns’] Exhibit 5 executed on May 10, 2004, [the Lefebvres] have the right to use the existing boat slip on the south side of [the Blackburns’] pier as long as [the Lefebvres] own Parcel B in the Family Subdivision and are living. [The Le-febvres’] right to use the south boat slip is not assignable, conveyable, or inheritable.
“3. However, [the Lefebvres] must pay [the Blackburns] $200 per year in consideration for the right to use the pier. Said payments are due on or before October 1st of each year, commencing with October 1, 2007.
“4. [The Lefebvres’] right to use the pier was not extinguished or terminated when Hurricane Ivan substantially destroyed the pier on or about September 16, 2004.
“5. [The Lefebvres’] right to use the pier was not extinguished or terminated when Mary E. Marler sold Parcel A and the pier to [the Blackburns] on April 13, 2005.
“6. [The Lefebvres’] right to use the pier was not extinguished or terminated when [the Lefebvres] intentionally removed all the pier boards on or about June 30, 2005.
“7. [The Lefebvres’] right to use the pier was not extinguished or terminated when [the Lefebvres] assigned the right to use the south boat slip to [Lefebvre’s friend,] Thomas Bailey.
“8. [The Lefebvres’] right to use the pier was not extinguished or terminated when [the Lefebvres] failed to pay [the Blackburns] $200 on or before October 1, 2005, and on or before October 1, 2006.
“9. [The Lefebvres] do not have a right to use or interfere with the boat slip on the north side of the pier.
“10. [The Lefebvres] must remove the pier box and all other fixtures they have installed on [the Blackburns’] pier. [The Lefebvres] do not have the right to rebuild, repair, alter, or modify the pier or the boat slips.
“11. [The Blackburns] do not have an obligation to rebuild the pier if the pier is substantially damaged by a hurricane or other natural forces.
“12. [The Blackburns] do have an obligation to perform general maintenance of the pier.
“16. [The Lefebvres] cannot leave their boats, kayaks, or other watercraft in the waters of Palmetto Creek adjacent to Parcel A in the Family Subdivision for any amount of time, except to the extent that [the Lefebvres] have the limited right to use the south boat slip as set forth herein.”

Analysis

Our supreme court recently stated the appropriate standard of review as follows:

“ ‘ “Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004) (quoting American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)). ‘However, as to issues of law, or “where there are no disputed facts and where the judgment is based entirely upon documentary evidence, no such presumption of correctness applies; our review is de novo.” Padgett v. Conecuh County Comm’n, 901 So.2d 678, 685 (Ala.2004) (quoting Alfa Mut. Ins. Co. v. Small, 829 So.2d 743, 745 (Ala.2002)). Moreover, no presumption of correctness attaches to the trial court’s conclusions of law or to its improper application of law to the facts. American Petroleum Equip., 708 So.2d at 132.”

Weeks v. Wolf Creek Indus., Inc., 941 So.2d 263, 268-69 (Ala.2006). With those general principles in mind, we now turn to the specific issues raised by the Black-burns.

I.

The Blackburns contend that the boat-slip agreement created a license that could be revoked. The Lefebvres contend that the boat-slip agreement created an easement in their favor. The trial court’s judgment did not specify whether the boat-slip agreement created a license or an easement, but it occasionally referred to the interest created by the boat-slip agreement as an “easement.” We note that regardless of the nature of the right created by the boat-slip agreement, this court may affirm a correct judgment for any reason, even if the trial court did not rely on that reason in reaching its judgment. Bama Budweiser of Montgomery, Inc. v. Anheuser-Busch, Inc., 611 So.2d 238 (Ala.1992); Cove Props., Inc. v. Walter Trent Marina, Inc., 702 So.2d 472, 474 (Ala.Civ.App.1997).

Concerning the proper interpretation of agreements creating licenses or easements, we note the following general principles. First, “ ‘[t]he construction of a written document is a function of the court.’ ” Jehle-Slauson Constr. Co. v. Hood-Rich, Architects & Consulting Eng’rs, 435 So.2d 716, 720 (Ala.1983) (quoting Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1194 (Ala.1978)). “In the absence of fraud or mistake, it is only where the instrument is doubtful of meaning, or its language ambiguous, that the court may look beyond the ‘four corners’ of the instrument to give clarity and specificity of meaning.” Camp v. Milam, 291 Ala. 12, 16-17, 277 So.2d 95, 98 (1973); see also David, Lee Boykin Family Trust v. Boykin, 661 So.2d 245, 251 (Ala.Civ.App.1995) (“The substantive rules governing licenses are the same as those governing contracts.”).

The critical factor in determining whether parties created an easement or a license is the parties’ intent. James v. Brewster, 954 So.2d 594, 600 (Ala.Civ.App.2006) (citing Boyce v. Cassese, 941 So.2d 932, 941 (Ala.2006)). In determining whether the parties created an easement or a license, we also look to the surrounding circumstances. See Drummond Co. v. Walter Indus., Inc., 962 So.2d 753 (Ala.2006) (citing Jon W. Bruce and James W. Ely, Jr., The Law of Easements & Licenses § 11:1 (West 2001)).

Concerning the distinction between easements and licenses, we note that, on the one hand, “[njonpossessory property rights such as covenants and easements are said to ‘run with the land,’ becoming an incident of ownership, and they are generally not personal.” Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 159 (Ala.2000). In contrast, “[a] license denotes the ‘giving of one’s consent’ to do or perform a specified activity; a license is a personal privilege and is generally revocable at the will of the licensor.” Wehby v. Turpin, 710 So.2d 1243, 1251 (Ala.1998) (citing Camp v. Milam, 291 Ala. at 17, 277 So.2d at 99).

Our supreme court has adopted the following language of Jon W. Bruce & James N. Ely, Jr., The Law of Easements & Licenses in Land § 11:1 (West 2001), to explain the distinction between easements and licenses and the factors to consider when determining the nature of the interest created by the parties:

“ ‘ § 1:4 — Fundamental difference
“ ‘A license is often defined as permission to do an act or a series of acts on another’s land that, absent authorization, would constitute trespass. Because permission is the voluntary grant of a personal privilege, the landowner may usually revoke consent at any time and thereby terminate the license. Given their revocable nature, licenses generally are not considered to reach the status of interests in land. In contrast, easements are irrevocable interests in land of potentially perpetual duration.
“ ‘Several distinctions flow from this fundamental difference. An express easement must be in writing to satisfy the Statute of Frauds; a license may be, and often is, given orally. Easement holders are entitled to protection from interference from third parties; licensees generally are not. Most easements are transferable; licenses are not transferable unless the parties intended otherwise.

“ ‘ § 1:5 — Intent of parties
“ ‘All of the legal distinctions between easements and licenses mentioned in the preceding section only hint at how one can decide which right was created. The critical factor is the parties’ intent. The following elements are important in ascertaining intent:
“ T. Manner of creation of right (oral or written). The mere granting of a right in writing does not automatically render it an easement.... [MJore is required to create an easement. The existence or absence of words that are “ordinarily used in the conveyances of real estate” is an important factor. The label that the parties give the right, however, does not dictate its legal effect. For example, a right called a lease may in reality be an easement or a license.
“ ‘2. Nature of right created. The creation of a right to be used in a particular portion of the servient estate indicates that an easement was intended. Likewise, the existence of authority in the holder of the right to maintain or improve the burdened property suggests an easement.
“ ‘3. Duration of right. A set duration indicates an easement. A grant in perpetuity also indicates an easement. Further, an express provision that the right benefits its holders’ successors and assigns supports the conclusion that an easement was intended. Similarly, an easement is indicated if the right expressly binds the servient landowner’s successors and assigns. Conversely, the deletion of words of succession may indicate a license. Finding an easement, however, does not depend upon the existence of “magic words such as ‘successors and assigns.’ ”
“ ‘4. Amount of consideration, if any, given for right. Substantial consideration indicates an easement. In this regard, it is necessary to distinguish consideration given for the right from money expended in reliance upon the right. An “irrevocable license” may result from expenditures made in reliance on an existing license.
“ ‘5. Reservation of power to revoke right. An express reservation of the power to cancel, revoke, or terminate the right may be considered to indicate a license. However, a power to terminate in the landowner does not necessarily mean that a license was created. Specifying a power to terminate for a particular reason or in limited circumstances may be seen as inconsistent with the unabridged right to revoke retained by one who grants a license. Moreover, an easement may be expressly subject to termination by the servient owner upon the occurrence of a specified event.’ ”

Boyce v. Cassese, 941 So.2d at 941-42 (emphasis added).

In Boyce v. Cassese, supra, our supreme court applied the above factors to the facts of that case and concluded:

“The agreement as amended contains words typical of a conveyance of an interest in land; the Golf Club was granted the right to use a portion of the property for golf tournaments in exchange for the promise to maintain and improve that property and to provide liability insurance covering the property during the tournaments; the agreement indicated that the rights and obligations granted in it were to run with the land and that they were binding upon the parties’ successors and assigns; and the Casseses, as the owners of the servient estate, did not reserve the right to cancel or terminate the Golf Club’s rights under the agreement. All of these factors indicate an intent to create an easement rather than a license.”

Boyce v. Cassese, 941 So.2d at 942.

In James v. Brewster, 954 So.2d at 600, this court applied the Boyce v. Cassese factors quoted above and concluded:

“With regard to James’s use of the concrete driveway, the amendment merely states, ‘The seller agrees that the existing driveway may be used by both parties (the Grantor and the Grantee).’ Thus, the amendment neither characterizes James’s use of the concrete driveway as an easement nor uses the traditional language used to convey an interest in real property. The language is more consistent with a grant of permission to use the concrete driveway than a grant of an interest in real property.”

The boat-slip agreement uses the term “easement” at least four times in referencing the right that was the subject of that agreement. However, the language used by the parties to an agreement is not dispositive in determining the nature of the rights created by that agreement. See Boyce v. Cassese, 941 So.2d at 941-42 (holding that an easement was created by a document despite the fact that the document stated that the grantors were conveying a license to use a strip of land); see also 25 Am.Jur.2d Easements and Licenses § 111 (2004) (stating that in determining “whether a transaction is a license or a lease, a court is not bound by the characterization of the parties”).

Aside from its use of the term “easement,” the boat-slip agreement also stated that the parties were creating a “right to use a boat slip” and specified that “[t]his right shall accrue only to the benefit of [the Lefebvres] and shall be non-assignable by them and shall not run with the property.” (Emphasis added.) Additionally, the boat-slip agreement required the Lefebvres to obtain the permission of the other property owners before making improvements or alterations to the pier or boat slip. Those requirements tend to indicate that the right created by the boat-slip agreement was personal in nature as to the Lefebvres.

The testimony of the parties also establishes that the Lefebvres use of the pier and boat slip was intended to be personal to them and that the parties intended that the Lefebvres have no right to transfer or convey their right to use the pier and boat slip and that the interest conferred not run with the land. Given the language of the boat-slip agreement and the parties’ testimony regarding their intent, we conclude that the boat-slip agreement created a license rather than an easement.

Our analysis does not end here, however, because under certain circumstances a license may become irrevocable. Our supreme court summarized the evolution of irrevocable licenses as follows:

“To prevent possible injustice the law began to recognize that the giving of one’s permission to another for the doing of certain acts with respect to the property of the former did not necessarily carry with it the unlimited right to withdraw the consent. The concept was broadened to look upon the license not merely as the giving of consent, but, in certain instances, the conferring of a legal right — a license coupled with an interest.”

Camp v. Milam, 291 Ala. at 17, 277 So.2d at 99 (footnote omitted). The court in Camp v. Milam, supra, continued:

“Thus, when expenditures contemplated by the licensor have been made by the licensee, the license, having been acted upon so as to greatly benefit the licensor, is said to have been executed. An executed license, for reasons founded upon the equitable principle of estoppel, becomes irrevocable and confers upon the licensee a substantive equitable right in the property.”

291 Ala. at 18, 277 So.2d at 99 (footnote omitted). The “equitable principle of es-toppel” described in Camp v. Milam has been recognized in Alabama since at least 1859, when our supreme court stated:

“It would be against all conscience to permit the defendant to revoke his license, after the plaintiff had acted upon it so far that great damage must necessarily result from the revocation. Every reason upon which the doctrine of estop-pels in pais rests, applies. It is a plain case, where one party has, by his conduct, induced another to act in such a manner, that he cannot be allowed to retract without serious injury to that other person. We think a denial of the right of revocation, under such circumstances, is consistent with justice and right, supported by the analogies of the law, and many respectable decisions.”

Rhodes v. Otis, 33 Ala. 578, 600-01 (1859).

In this case, all the owners of the parcels in the family subdivision signed the boat-slip agreement. The boat-slip agreement was executed on the same date the Lefebvres purchased parcel B, and it was subsequently recorded in the probate records of Baldwin County. Lefebvre testified that the reason the Lefebvres purchased parcel B from the Thompsons was in order to acquire the right to use the pier and boat slip; in his testimony, Tracey Thompson acknowledged that fact. Tracey Thompson understood that the Le-febvres relied on the boat-slip agreement to purchase parcel B. However, Marler insisted that she intended that the Le-febvres have the right to use the pier and boat slip only for as long as she owned parcel A, which was for sale at the time the boat-slip agreement was executed. Marler testified that she did not inform the Lefebvres of that intent at the time she signed the boat-slip agreement. The Lefebvres’ attorney questioned Marler regarding whether it was reasonable that the Lefebvres would purchase parcel B under those conditions, and Marler responded that she did not know how to answer that question. The trial court could have resolved that question in favor of the Le-febvres.

Further, although we have not interpreted the boat-slip agreement as creating an easement, that agreement, in several places, refers to the right conferred as an “easement.” Thus, the language of the boat-slip agreement indicates that the parties intended to create an interest that was greater, or more permanent in nature, than a revocable license.

The evidence supports a conclusion that Marler contemplated that the Lefebvres would rely upon the license afforded them pursuant to the terms of the boat-slip agreement to make certain expenditures, specifically, the purchase of parcel B. See Camp v. Milam, supra. The evidence also supports a finding that Marler benefited from the Lefebvres’ reliance upon the license when her son was able to sell his property, when the Lefebvres rebuilt the damaged pier and boat slip, and when she received the $200 payment called for under the boat-slip agreement. Given the facts of this case, we conclude that the evidence supports a conclusion that Marler knew that the Lefebvres purchased parcel B in reliance on the license created by the boat-slip agreement. We also conclude that the evidence of the Lefebvres’ reliance on the license conveyed by the boat-slip agreement, together with Marler’s knowledge of that reliance, sufficiently supported the trial court’s conclusion that the license was “executed” such that it could not be revoked. See Camp v. Milam, 291 Ala. at 18, 277 So.2d at 99. Consequently, the Lefebvres have a “substantive equitable right in the property,” and it “ ‘would be against all conscience’ ” to allow the license to be revoked. Id. (quoting Rhodes v. Otis, 33 Ala. at 600).

Several Alabama cases have held that an irrevocable license, because it is personal in nature, does not run with the land. In Camp v. Milam, supra, after determining that an irrevocable license had been created between the parties to that case, the court stated:

“We further hold that this license of the Milams, although irrevocable, is by its very nature personal; and, being a personal right, it is not an interest which attaches to or runs with the land, nor can it be assigned, conveyed or inherited. Neither can the use of the lake under this license ever ripen into an easement by prescription, however long continued. Kirkland [v. Kirkland, 281 Ala. 42, 44, 198 So.2d 771, 772 (1967) ].”

291 Ala. at 19, 277 So.2d at 100. See also Wehby v. Turpin, 710 So.2d at 1251; and Shearer v. Hodnette, 674 So.2d 548, 551 (Ala.Civ.App.1995) (“Although irrevocable, the license during the lifetime of the Hod-nettes is by its nature personal. It is not an interest which runs with the land, nor can it be assigned, conveyed, or inherited.”). Importantly though, the above statements in Camp v. Milam, supra, and Shearer v. Hodnette, supra, were not made in the context of a dispute between a licensee and a successor to a licensor, as we are faced with in the present case. Instead, those disputes concerned the original licensee and licensor, and thus although the above statement clarified the rights of the parties to the case, it is not determinative in the present case. Our research has not shown that the Alabama courts have been called upon to determine the rights of the holder of an irrevocable license as against a successor in title to the licensor who took the property with notice of the license. We, therefore will look to the law of other states for guidance on this issue.

In Florida, “a subsequent vendee having notice of the licensee’s use at the time of purchase takes the land burdened with the license, and has no right to object to its presence or to sue for or recover damages therefor.” Tatum v. Dance, 605 So.2d 110, 112 (Fla.Dist.Ct.App.1992). The Pennsylvania Superior Court has addressed the issue as follows:

“The Pennsylvania Supreme Court adopted the equitable doctrine of irrevocable license in the mid-nineteenth century stating that ‘a license to do something on the licensor’s land when followed by the expenditure of money on the faith of it, is irrevocable, and is to be treated as a binding contract.’ Huff v. McCauley, 53 Pa. 206, 208 (1866); Kovach v. General Telephone Co., 340 Pa.Super. 144, 489 A.2d 883, 885 (1985). The Court subsequently explained that such a license,
“ ‘while not strictly an easement, is in the nature of one. It is really a permission or license, express or implied, to use the property of another in a particular manner, or for a particular purpose. Where this permission has led the party to whom it has been given, to treat his own property in a way in which he would not otherwise have treated it ... it cannot be recalled to his detriment.’
“Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495, 498 (1979)(quoting Pierce v. Clelland, 133 Pa. 189, 19 A. 352 (1890)). Thus, the irrevocable license gives ‘absolute rights, and protects the licensee in the enjoyment of those rights.’ Cole v. Ellwood, 216 Pa. 283, 289, 65 A. 678, 680 (1907). Moreover, ‘successors-in-title take subject to an irrevocable license if they had notice of the license before the purchase.’ Kovach, supra (quoting Harkins, supra at 498).”

Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139, 144 (Pa.Super.Ct.2000) (emphasis added) (holding that “[subsequent owners ... took the property subject to the irrevocable license”); see also Loid v. Kell, 844 S.W.2d 428, 430 (Ky.Ct.App.1992) (citing Holbrook v. Taylor, 532 S.W.2d 763 (Ky.1976), for the proposition that the irrevocability of a license does not travel with the land upon which the license is located and that it must pass, if at all, by equitable principles to the subsequent owner). The foregoing is reflected in commentary as well:

“A license which, because of its being executed, is irrevocable against the li-censor, is also irrevocable as against a purchaser from the licensor with notice unless the licensee is by his or her own acts estopped to assert such irrevocability.”

53 C.J.S. Licenses § 144 (2005) (footnotes omitted).

In this case, the Lefebvres recorded the boat-slip agreement in the probate court office. Further, the evidence demonstrates that the Blackburns obtained from Marler, before she conveyed parcel A to them, an affidavit indicating that she intended that the boat-slip agreement confer on the Lefebvres a license to use the pier and boat slip. Thus, the Blackburns purchased parcel A with at least knowledge of the boat-slip agreement. Given the facts of this case, we conclude that the license created by virtue of the boat-slip agreement was also irrevocable by the Black-burns.

II.

The Blackburns argue in the alternative that certain facts “destroyed” the Le-febvres interest created by the boat-slip agreement. Citing Chatham v. Blount County, 789 So.2d 235, 241 (Ala.2001), and other cases, the Blackburns assert that the “easement” in this case was abandoned because the acts of the Lefebvres rendered the use of the pier and boat slip impossible or “obstructed it in a manner inconsistent with its further enjoyment.”

In Chatham, our supreme court held that a railroad company’s removal of the rails, cross-ties, and track material constituted an abandonment of its easement. In Byrd Cos. v. Smith, 591 So.2d 844, 848 (Ala.1991), our supreme court affirmed a trial court’s judgment that held that an easement was abandoned when a building was constructed over the easement. We note that “ ‘[t]he essence of the inquiry of abandonment vel non of an easement by the owner is his intention.’” McCulloch v. Roberts, 290 Ala. 303, 307, 276 So.2d 425, 428 (1973) (quoting Western Union Tel. Co. v. Louisville & N.R. Co., 206 Ala. 368, 370, 89 So. 518, 518 (1921)).

Although those cases address easements, we apply the general theory of those cases in considering whether the interest created by the boat-slip agreement was abandoned or destroyed. See Hausman v. Brown, 201 Ala. 331, 333, 77 So. 993, 995 (1918) (our supreme court has indicated that some licenses may be “in the nature of an easement, which would be irrevocable”); and Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d at 144 (stating that “a license may become irrevocable under the rules of estoppel and in those circumstances it is similar to an easement”).

The Blackburns argue that the Lefebvres’ rights under the boat-slip agreement were abandoned or destroyed because Lefebvre removed the deck boards from the pier. However, the trial court heard evidence on that issue, much of which was not transcribed for this court’s review, and it determined that the removal of the deck boards did not destroy the Lefebvres’ rights under the boat-slip agreement. “ ‘ “Where evidence is presented to the trial court ore tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ ” Weeks v. Wolf Creek Indus., Inc., 941 So.2d at 268. The trial court was presented with the ore tenus evidence, and we will not reweigh its factual conclusion that the removal of the deck boards did not equate to an abandonment of the Lefebvres’ right to access Palmetto Creek or to use the pier or boat slip. Further, “testimony ... not present in the record either as a transcript or as a Rule 10(d) summary ... continues to be conclusively presumed ... [to be] sufficient to support affirmance.” Adams v. Adams, 335 So.2d 174, 177 (Ala.Civ.App.1976). We cannot say that the Blackburns have demonstrated that the trial court erred in refusing to find that Lefebvre’s removal of the deck boards demonstrated an intent to abandon, or was in fact an abandonment, of the Lefebvres’ rights under the boat-slip agreement.

The Blackburns also assert that a purported “breach” of the boat-slip agreement by the Lefebvres terminated any right they have to use the pier and boat slip. According to the Blackburns, when the Lefebvres failed to obtain written permission from Marler before rebuilding the pier and boat slip after Hurricane Ivan, they breached the agreement. However, those repairs were performed before the Blackburns purchased parcel A. Thus, it appears that the Blackburns do not have standing to object to any oral modification of the license agreement made between Lefebvre and Marler in regard to the repairs to the pier and boat slip. Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d 90, 93 (Ala.1981) (“[a] third person has no rights under a contract between others unless the contracting parties intend that the third person receive a direct benefit enforceable in court”); Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1077 (Ala.Civ.App.2005) (citing Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990), for the proposition that as a general rule a litigant may not claim standing to assert the rights of a third party).

Additionally, the testimony of Le-febvre was that Marler did not object when he told her he was going to rebuild the pier and boat slip after Hurricane Ivan. Consequently, the evidence supports a conclusion that Marler waived the requirement that the Lefebvres obtain permission before performing repairs or that Marler agreed to a modification of the contract terms. See Duncan v. Rossuck, 621 So.2d 1313, 1315 (Ala.1993) (noting that under Alabama law a written agreement may be modified by a subsequent oral agreement of the parties unless some statutory provision provides otherwise and that such modification may occur even when the contract contains a requirement that all modifications be in writing).

The Blackburns also argue that the Lefebvres breached the boat-slip agreement when they allowed a third party to store his boat at the boat slip. The Blackburns contend that this act constituted an assignment of the Lefebvres’ rights that was not permitted under the terms of the boat-slip agreement. “There has been an assignment (1) if the assignor intended to transfer a present interest in the subject matter of the contract, [Baker v. Eufaula Concrete Co., 557 So.2d 1228, 1230 (Ala.1990) ], and (2) if the assignor and the assignee mutually assented to the assignment.” DeVenney v. Hill, 918 So.2d 106, 113 (Ala.2005) (citing 6A C.J.S. Assignments § 73 (2004)). “Whether the assign- or intended to transfer his or her interest is a factual issue to be determined under the circumstances of the case.” DeVenney, 918 So.2d at 113 (citing Baker, 557 So.2d at 1230). Lefebvre testified that he understood the boat-slip agreement to mean that he could not assign the use of the boat slip to anyone when he sold the property. Lefebvre testified that he allowed Bailey to store his boat in the boat slip temporarily, during the period in which his own dock or boat slip was being repaired after it had been damaged by a storm. Accordingly, the trial court could have determined that the Lefebvres did not intend to assign their rights under the boat-slip agreement based solely on Le-febvre’s temporarily allowing a friend to use the slip.

The Blackburns finally contend that any right the Lefebvres had was destroyed when Hurricane Ivan damaged the pier or boat slip. Again, as noted above, the Blackburns do not appear to have standing to assert this argument because the damage occurred before they purchased parcel A. Assuming, for the sake of argument, that the Blackburns do have standing, we note that they rely primarily on Trustees of Howard College v. McNabb, 288 Ala. 564, 574, 263 So.2d 664, 673 (1972), and Amlea (Florida), Inc. v. Smith, 567 So.2d 981, 982 (Fla.Dist.Ct.App.1990), for the proposition that if the pier was destroyed, any right to use the pier was also destroyed. Importantly though, in McNabb, the right the parties had was a right to use a lake; that lake “ceased to exist and [could] not be restored.” 288 Ala. at 574, 263 So.2d at 673 (emphasis added). In Smith, the court stated in a two-paragraph opinion, without stating any facts, that “an easement in a building coupled with no interest in the land, such as [a] parking easement ... is extinguished by the destruction of the building.” 567 So.2d at 982.

In this case the Blackburns did not introduce evidence relating to the extent of the damage to the pier following the hurricane, and the trial court apparently found that the pier did not cease to exist. Additionally, Marler acquiesced to the reconstruction of the pier. The trial court did not exceed its discretion in determining that the purported “destruction” of the pier or boat slip by the hurricane did not terminate the Lefebvres’ rights under the boat-slip agreement.

Based on the foregoing, we affirm the trial court’s judgment.

AFFIRMED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Marler's husband died in February 2002.

      . It is not clear to this court why all these persons were listed as owners of the boat slip.

      . We note that before the trial court the parties occasionally referred to parcel A as "parcel C." There is no dispute that the Black-burns’ property was adjacent to Palmetto Creek. For the purposes of this opinion, we refer to the Blackburns' property as "parcel A.”

      . At the time of the hearing, two boat slips were in existence on the pier. The boat slip at issue in this action is the boat slip on the south side of the pier. The boat slip on the north side of the pier appears to have been constructed after the Blackburns purchased parcel A.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    T.S. v. E.J.
    2060235.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Jerry M. Blevins, Montgomery, for appellant.
   PITTMAN, Judge.

In March 2006, T.S. and her sister L.S., through counsel, filed a verified complaint in the domestic-relations division of the Montgomery Circuit Court, which sits as the juvenile court in that county (see generally State ex rel. Provitt v. Coleman, 821 So.2d 1015, 1016 (Ala.Civ.App.2001), and Ex parte Jones, 896 So.2d 553, 554 (Ala.Civ.App.2004)), seeking a determination that W.J., a minor child born in December 2002 (“the child”), was “dependent” as defined in § 12-15-1(10), Ala.Code 1975; the plaintiffs contended that the child was without a parent able to provide for the child’s support, training, or education and that the child’s custody was in controversy. The plaintiffs testified in their custody affidavit accompanying the complaint that the child had lived with them from when she was one month old until one week before the filing of the complaint; they further testified that the child’s biological mother, E.J. (“the mother”), had taken the child away from them and had placed her in a “foreign” and “unsafe” environment in that, the plaintiffs said, the mother had been selling drugs and had neglected to take the child to preschool and medical appointments. A guardian ad litem (“GAL”) was appointed to represent the interests of the child, and counsel appeared for the mother as well.

On March 29, 2006, the mother submitted to a drug test; the results of that test were positive for cocaine and marijuana use. The mother thereafter attended an individualized-service-plan (“ISP”) meeting on April 6, 2006, at which time it was decided that the mother would not be left alone with the child and her other four children. The Montgomery County Department of Human Resources (“DHR”) filed a report in the juvenile court on April 14, 2006, recommending that the child be temporarily left in the care of the mother, with the plaintiffs having limited visitation. At that time, the juvenile court entered an order placing the child with the mother pending a final hearing but directing the mother to comply with DHR’s recommendations and requiring DHR to notify the juvenile court of any noncooperation by the mother.

A DHR report prepared on June 20, 2006, indicated that the mother had progressed “extremely well” in an outpatient drug-treatment program and that she, the child, and the mother’s other children had joined a church and become active members. Two days after DHR had filed its second report, the juvenile court held a hearing in the matter and subsequently entered an order maintaining the status quo; a trial was set for November 2006. In July 2006, through new counsel, the plaintiffs amended their verified complaint to allege additional grounds of dependency, ie., that the child had been abandoned and that the child’s mother was unable to discharge her responsibilities to and for the child.

In August 2006, the mother, on her own behalf and on the apparent behalf of the GAL, moved to quash discovery and for a judgment on the pleadings or, in the alternative, for a summary judgment in the mother’s favor; in that motion, the mother averred that the plaintiffs were unrelated to the child, that the mother was capable of taking care of the child and could call upon relatives to assist her in that regard, and that “no issue of fact ... would in any way whatever change the circumstances of this case.” The mother stated that her motion was based upon the juvenile court’s records in the case and the GAL’s apparent agreement that the plaintiffs were not entitled to relief. In response, the plaintiffs filed a motion that sought an order striking all inadmissible materials in the court record from consideration and that contained a response opposing the mother’s motion for a judgment in her favor in which the plaintiffs asserted that they had standing to seek a finding of dependency despite the absence of any kinship to the child. In the days immediately preceding the scheduled trial, L.S. removed herself as a plaintiff on her own motion, leaving T.S. as the sole plaintiff; DHR also filed a third court report in which it recommended that the mother receive legal and physical custody of the child.

On November 2, 2006, the date set for trial, the juvenile court indicated on the record that it had reviewed DHR’s report and the report filed on that day by the GAL (which also had recommended that the mother be awarded custody of the child) — reports that, T.S. contended, contained inadmissible hearsay statements. The juvenile court orally denied T.S.’s motion to strike and indicated that the mother’s motion for a judgment on the pleadings or, in the alternative, for a summary judgment would be granted, implicitly rejecting T.S.’s arguments that “[t]he issue of whether the child is dependent cannot be determined at this point.” The juvenile court expressly stated on the record at the November 2, 2006, hearing that counsel for the mother was to prepare a judgment form for the juvenile court to execute. Thus, although the juvenile court signed notations on the case-action-summary sheet on November 2, 2006, indicating that it had considered the “GAL Recommendation along with DHR Report” in connection with the mother’s motion, that the mother’s motion was due to be “granted,” that T.S.’s motion (apparently referring to the motion to strike) was due to be “denied,” and that the mother would be granted custody with DHR to continue to offer services to the mother, we cannot conclude that those entries “ ‘indicate[ ] an intention to adjudicate, considering the whole record,’ as required by Rule 58(b), Ala. R. Civ. P.” Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).

On November 14, 2006, T.S. filed a motion that requested, among other things, that the juvenile court “alter, amend, or vacate” its judgment; however, at that time, no judgment form had been executed by the juvenile court. On November 16, 2006, the juvenile court entered a judgment by signing a form prepared by counsel for the mother that contained a summary of factual and legal determinations. At that time, T.S.’s motion to alter, amend, or vacate “became effective” (see New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004)) so as to toll, pursuant to Rule 4(a)(3), Ala. R.App. P., the time for taking an appeal during its pendency. Because the juvenile court did not expressly rule on that motion, the motion was deemed denied, pursuant to Rule 1(B), Ala. R. Juv. P., on November 30, 2006; thus, T.S.’s notice of appeal, filed on December 8, 2006, was timely filed under Rule 4(a)(1)(E), Ala. R.App. P.

T.S. raises two issues on appeal. We deem the second issue to be disposi-tive: whether the juvenile court erred in granting the mother’s motion for a judgment on the pleadings or, in the alternative, for a summary judgment rather than holding an evidentiary hearing on the dependency petition. As a threshold matter, we note that Rule 12(c), Ala. R. Civ. P., provides that “[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56,” Ala. R. Civ. P. Because the juvenile court, rather than excluding matters outside the parties’ pleadings, expressly took notice of the DHR reports, the report of the GAL, and certain admissions made by the mother pursuant to Rule 36, Ala. R. Civ. P., we construe its judgment to be a summary judgment rather than a judgment on the pleadings. See Vise v. Cole Sanitation, Inc., 591 So.2d 32, 33 (Ala.1991).

Rule 56, Ala. R. Civ. P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, a trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. However, the party who moves for a summary judgment bears, under our law, “ ‘the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.’ ” Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). Because the burden of proof at trial would have been laid upon T.S., the mother had the ability to satisfy her burden of production by submitting affirmative evidence that negated an essential element of T.S.’s claim or by demonstrating that T.S.’s evidence is insufficient to establish an essential element of T.S.’s claim. General Motors, 769 So.2d at 909. Finally, in determining whether a summary judgment was properly entered, the reviewing court must view the evidence in a light most favorable to the nonmovant. Long v. Jefferson County, 623 So.2d 1130, 1132 (Ala.1993).

As we have noted, T.S.’s verified complaint, as amended, advanced four principal grounds for a finding of dependency: (1) that the child’s custody was in controversy; (2) that the child lacked a parent able to provide for the child’s support, training, or education; (3) that the child’s mother was unable to discharge her responsibilities to and for the child; and (4) that the child had been abandoned by the mother. With respect to the abandonment ground, the affidavit filed in support of the complaint contained testimony to the effect that the child had resided with T.S. and L.S. since she was six weeks old, that the mother had asked T.S. and L.S. at that time to take care of the child, and that the mother had agreed at that time to “never come get her.” In contrast, the reports filed by DHR address only matters that took place in the life of the mother and the child following the filing of the action in March 2006, such as the mother’s progress with respect to drug treatment. The GAL’s report contains statements to the effect that the mother had denied having left the child with T.S. and L.S. and that the mother had stated that she had always cared for the child; the mother, according to the GAL, attributed the filing of the dependency complaint upon a decision to allow the child’s maternal uncle, rather than T.S., to claim the child as a dependent for income-tax purposes.

The juvenile court may well have concluded from the reports submitted by DHR and the GAL addressing the mother’s current circumstances that the evidence clearly warranted a judgment as a matter of law as to any contention that the mother was unable to support, train, educate, or discharge any of her other responsibilities as to the child. However, those reports do not negate all the material issues raised by T.S. in that she also claims that the child is dependent because the mother abandoned the child. Under Ala. Code 1975, § 12-15-l(10)i., a child “[w]ho has been abandoned by the child’s parents” is included within the definition of “dependent child”; the Code, in turn, defines “abandonment” as including “voluntary and intentional relinquishment of the custody of a child by a parent,” “withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection,” “the failure to claim the rights of a parent,” and “failure to perform the duties of a parent.” Ala.Code 1975, § 26-18-3(1). The evidence relied upon by the mother does not conclusively negate any issue concerning whether she intended to voluntarily and intentionally relinquish her rights to the child to T.S. when the child was six weeks old, and a trier of fact may well credit T.S.’s testimony tending to indicate that such an abandonment did indeed occur. “[Sjummary judgment may not substitute for the trial of issues of fact.” State v. Robinson, 510 So.2d 834, 836 (Ala. Civ.App.1987).

Based upon the foregoing facts and authorities, the juvenile court’s summary judgment was entered in error. That judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. The motion of T.S. for expedited review is denied as moot. See also L.C.S. v. J.N.F., 941 So.2d 973, 978 (Ala.Civ.App.2005) (noting the custom of this court to decide juvenile appeals “with dispatch” in light of the importance of family-law questions generally presented), cert. denied, — U.S. -, 127 S.Ct. 504,166 L.Ed.2d 368 (2006).

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Under Rule 1(A), Ala. R. Juv. P., the Alabama Rules of Civil Procedure are applicable to juvenile proceedings to the extent that they are not inconsistent with the Alabama Rules of Juvenile Procedure.

      . The mother, the GAL, and DHR have not favored this court with briefs.

      . We note that the mother did not file a narrative summary of undisputed facts in support of her motion, as required by Rule 56(c)(1), Ala. R. Civ. P.; however, that omission does not constitute reversible error in this case because T.S. did not assert in the juvenile court any objection to the procedural sufficiency of the mother’s motion based upon that omission. See Ex parte Rehabworks of Florida, Inc., 727 So.2d 808 (Ala.1998).


text:
    D. A. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2060112.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      James M. Sims, Anniston, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

D.A. (“the father”) appeals from judgments terminating his parental rights as to Kha.A., who was born on November 24, 1995; Dw.A., who was born on December 25, 1996; and Khu.A., who was born on March 12, 1998 (collectively, “the children”).

In February 2006, the Calhoun County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of the children’s mother, Da.A. (“the mother”), and the father. In that pleading, DHR alleged that the children had been in DHR’s custody since December 2003, that reasonable efforts to rehabilitate the parents had failed, and that the parents had failed to adjust their circumstances to meet the needs of the children. The petition further alleged that the last known address for the father was in New York and that he had failed to maintain consistent contact with the children.

On October 16, 2006, the juvenile court conducted a termination-of-parental-rights hearing. At the outset, both the father and the mother were represented by appointed counsel. Although the mother was present, the father was not. The father’s attorney made two oral motions on the record before trial: first, the attorney requested that the juvenile court continue the hearing because of a sudden snowstorm in Buffalo, New York, that purportedly had prevented the father from taking a bus south to Alabama to attend the proceeding. The second motion requested that the juvenile court dismiss the termination-of-parental-rights proceeding against the father because, the attorney claimed, the father had not received proper notice of the proceeding.

The juvenile court denied the continuance request and addressed the notice issue. Upon questioning, a court officer, Judy Harbin, informed the court that the father had been served by publication in February 2006 and that, after a correct address had been obtained, the father had been served by personal service on March 31, 2006. The juvenile court then determined that the motion to dismiss was due to be denied and relieved the father’s counsel of any further obligation to represent the father at the hearing.

Two days later, the juvenile court issued three form judgments styled “Order on Petition for Termination of Parental Rights” to be entered in the court file; those forms had been completed by the judge, and each form terminated the mother’s and the father’s rights as to one child. No postjudgment motions were filed, and only the father appeals.

The father’s first contention is that the juvenile court erred when it denied his motion to continue on the day of the hearing. “Whether to grant or to deny a motion to continue in a termination-of-parental-rights case is within the discretion of the court and its decision will not be reversed absent a showing that the court has abused its discretion.” S.C.D. v. Etowah County Dep’t of Human Res., 841 So.2d 277, 278 (Ala.Civ.App.2002). The record contains a lengthy conversation between the juvenile-court judge and the father’s counsel regarding a recent snowstorm in New York that the father referenced as the reason for his absence and his need to seek a continuance. The juvenile court initially noted that the father had been present at a previous court date when the October hearing date had been set and that the father had stated that he was in the process of moving from New York back to Alabama. The juvenile court also stated that on other occasions the father had not been truthful with the court, that the proceeding had been continued previously, and that the father had been informed of the date of the termination-of-parental-rights hearing with sufficient advance notice to leave New York for Alabama by bus before the snowstorm had arrived. Later during the hearing, the juvenile court noted on the record that a telephone call to Greyhound Bus Lines had revealed that all bus routes between New York and Alabama were open; the juvenile court noted that the father had failed to show a good reason for the trial to be continued.

As a general rule, continuances are not favored under Alabama law. See, e.g., Patterson v. Liz Claiborne, Inc., 872 So.2d 181 (Ala.Civ.App.2003), and M.S. v. State Dep’t of Human Res., 648 So.2d 584 (Ala.Civ.App.1994). Moreover, “the paramount concern in [termination-of-parental-rights] proceedings is the best interests of the child[ren].” P.W. v. Houston County Dep’t of Human Res., 771 So.2d 1057, 1059 (Ala.Civ.App.2000). In addition, Alabama law stipulates that, in juvenile cases, “Continuances shall be granted by the court only upon a showing of good cause.” Ala.Code 1975, § 12-15-68. Based upon a thorough review of the record in this case, we conclude that the juvenile court could properly have determined that the father failed to provide a good cause for continuing the proceeding again in light of the juvenile court’s previous experience with the father and the children’s need for stability and permanency. Thus, we conclude that the juvenile court did not act outside its discretion when it denied the father’s request for a continuance.

The father also attempts to assert substantive arguments that the juvenile court erred (1) in dismissing his appointed attorney before conducting the termination-of-parental-rights hearing and (2) in terminating his parental rights when, he claims, DHR failed to present clear and convincing evidence that termination of his parental rights as to the children was necessary. Because the father neither attended the parental-rights-termination hearing nor filed a postjudgment motion, neither of those contentions were presented to the juvenile court; therefore, the record does not reflect any adverse ruling made by that court that is preserved for appellate review. The oft-quoted and long-standing rule is that an appellate court may not consider an issue raised for the first time on appeal. See Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003); W.C. v. State Dep’t of Human Res., 887 So.2d 251 (Ala.Civ.App.2003); and Centers v. Jackson County Dep’t of Pensions & Sec., 472 So.2d 1069, 1070 (Ala.Civ.App.1985). “ ‘[A juvenile] court should not be placed in error [by an appellate court] on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon’ ” at trial or in a post-judgment motion. J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995) (quoting Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988)); see also Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992).

Although we conclude that the father has not preserved any issue for appellate review beyond the issue of the juvenile court’s denial of the father’s continuance request, the father is not without legal remedy. The father’s assertion regarding the juvenile court’s removal of his appointed attorney from further representation would more properly be raised as an ineffective-assistance-of-counsel argument in a Rule 60(b), Ala. R. Civ. P., motion. Our Supreme Court has noted that in termination-of-parental-rights cases, “a parent has a right to appointed counsel.” Ex parte E.D., 777 So.2d 113, 115 (Ala.2000); see also § 12-15-63(b), Ala.Code 1975. Inherent in that right to legal representation is the right to effective assistance of counsel. Ex parte E.D., 777 So.2d at 115; see also Crews v. Houston County Dep’t of Pensions & Sec., 358 So.2d 451, 454 (Ala.Civ.App.1978).

The only possible result of the father’s direct appeals from the juvenile court’s judgments based upon allegations of error not preserved for appellate review is summary affirmance. See Weaver, W.C., and J.K., supra. However, our Supreme Court has explicitly endorsed the use of a Rule 60(b) motion as a valid method of challenging a termination judgment based upon claimed ineffective assistance of counsel. See Ex parte E.D., 111 So.2d at 115-16. We conclude that although the father has not brought a valid substantive challenge to the termination of his parental rights to this court at this time, he is not precluded from presenting a deprivation-of-counsel argument to the juvenile court so as to establish a record on which to base a possible future appeal.

The juvenile court’s judgments are due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . The father's appeals have been consolidated.

      . The record contains a judgment terminating the parental rights of the mother and the father as to T.A., another one of their children. When the mother appealed from that judgment, this court affirmed; that opinion indicates that the father abandoned T.A. See D.A. v. Calhoun County Dep't of Human Res., 892 So.2d 963 (Ala.Civ.App.2004).


author: BASCHAB, Presiding Judge.

text:
    Raymond Wade CASTEEL v. STATE of Alabama.
    CR-06-0720.
    Court of Criminal Appeals of Alabama.
    June 29, 2007.
    Raymond Wade Casteel, pro se.

      Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

On October 26, 2005, pursuant to a negotiated agreement, the appellant, Raymond Wade Casteel, pled guilty to first-degree sexual abuse. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A. — 5—9(c)(1), Ala. Code 1975. The appellant filed a notice of appeal, but we dismissed his appeal on April 18, 2006, because he did not timely file his notice of appeal. (CR-05-1245.) On October 25, 2006, the appellant filed a Rule 32 petition, challenging his conviction, and he subsequently amended his petition. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that he did not appeal his conviction through no fault of his own. Specifically, he contends that the trial court “forced [him] to represent himself after [he] requested counsel for his motion to withdraw the guilty plea, resulting in a failure to timely appeal through no fault of his own.” (Appellant’s brief at p. 9.) The record indicates that the appellant was sentenced on October 26, 2005. On November 23, 2005, the appellant filed a pro se motion to withdraw his guilty plea in which he requested that the court “appoint a competent and able attorney to represent Defendant and assert the claims before the Court.” (C.R. 33.) On December 2, 2005, the trial court set a hearing on the motion for January 10, 2006. On December 13, 2005, the trial court entered an order allowing trial counsel to withdraw from the case. The appellant’s motion to withdraw his guilty plea was denied by operation of law on December 27, 2005. On January 23, 2006, the trial court entered an order purportedly denying the appellant’s motion to withdraw his guilty plea. On March 3, 2006, the appellant filed a notice of appeal, and this court dismissed the appeal on April 18, 2006. (CR-05-1245.)

“The Sixth Amendment guarantees the right of counsel to the accused in all criminal prosecutions. U.S. Const. Amend. VI. This right to counsel encompasses all federal and state criminal prosecutions that result in imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right is applicable to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright. The right attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical stage is any stage where a substantial right of an accused may be affected, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and can arise in pretrial as well as post-trial proceedings. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (pretrial right to presence of attorney violated during any interrogation occurring after the first formal charging proceedings, absent a valid waiver); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (pre-trial right to counsel violated where judicial proceedings had been initiated and confession obtained without the presence of counsel and in absence of a valid waiver); Johnston v. Mizell, 912 F.2d 172 (7th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 982, 112 L.Ed.2d 1067 (1991) (post-trial motion for new trial critical stage in criminal proceedings); Menefield v. Borg, 881 F.2d 696 (9th Cir.1989) (post-trial motion for new trial critical stage requiring counsel or valid waiver); King v. State, 613 So.2d 888 (Ala.Cr.App.1993) (post-trial motion for new trial critical stage requiring counsel, absent a valid waiver). Courts have held that a motion to withdraw a guilty plea is a critical stage in a criminal proceeding[ ], requiring effective assistance of counsel. See, e.g., United States v. White, 659 F.2d 231 (D.C.Cir.1981); United States v. Crowley, 529 F.2d 1066 (3rd Cir.1976). In recognizing that a defendant in Alabama has a right to counsel at sentencing and in the first appeal, this court stated in King v. State, 613 So.2d at 891, ‘It would appear that if an indigent defendant is constitutionally entitled to the assistance of counsel at sentencing and in the first appeal as a matter of right, that defendant would be entitled to the assistance of counsel in the interim period, absent a waiver.’
“Based upon the foregoing authorities, we find that a motion to withdraw a guilty plea is a critical stage in a criminal proceeding requiring representation of counsel or a valid waiver of the right to counsel.
“The right to counsel does not depend upon a request by the accused. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). ‘[I]f an accused does not waive counsel and does not retain acceptable counsel, the court must appoint counsel.’ United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990). If a defendant in a criminal proceeding is not represented by counsel, the state must prove an intentional relinquishment of that right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
“ ‘But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. ...
“ ‘... Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“Id. at 513-16, 82 S.Ct. at 889-90.
“The constitutional ‘right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused[, and cjonviction without this safeguard is void.’ People v. Carroll, 140 Cal.App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.Cr.App.1993) (‘the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[ ]; Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Cr.App.1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation “will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty’).”

Berry v. State, 630 So.2d 127, 129-30 (Ala.Crim.App.1993) (footnotes omitted).

The record in this case indicates that the appellant was not represented by counsel during a portion of the time between his sentencing and his first appeal. Also, the record does not indicate that he waived his right to counsel during that time. In fact, in his motion to withdraw his guilty plea, the appellant requested that the court appoint counsel to represent him with regard to the motion to withdraw his guilty plea. Because the appellant was not represented by counsel during this critical stage of the proceedings, he is entitled to an out-of-time appeal. Accordingly, we reverse the circuit court’s judgment and remand this case with instructions that that court grant the appellant leave to file an out-of-time appeal from his conviction.

REVERSED AND REMANDED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.