source: Caselaw Access Project

author: WOODALL, Justice. SEE, Justice

license: Public Domain

text:
    NOLAND HEALTH SERVICES, INC., et al. v. Peter WRIGHT, as the administrator of the estate of Dorothy Willis, deceased.
    1060061.
    Supreme Court of Alabama.
    May 4, 2007.

      Joseph L. Reese, Jr., of Starnes & At-chison, LLP, Birmingham, for appellants.
    Kathryn S. Harrington of Hollis & Wright, P.C., Birmingham; and Michael K. Beard of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
    James F. Henry and Richard G. Whee-lahan of Johnston Barton Proctor & Powell, LLP, Birmingham, for amici curiae Alabama Nursing Home Association and the Alliance for Long-Term Care Quality Improvement, in support of the appellants.
   WOODALL, Justice.

Noland Health Services, Inc., The Village at Cook Springs, LLC (“The Village”), and Ed Stevens appeal from an order denying their motion to compel the arbitration of an action by Peter Wright, as the administrator of the estate of Dorothy Willis, deceased, seeking damages for the personal injuries and wrongful death of Dorothy Willis. We affirm.

On March 25, 2004, Willis, accompanied by her daughter-in-law, Vicky Willis, was admitted to the skilled-nursing facility at The Village (“the nursing home”), which was owned and/or operated by Noland Health Services, Inc., and The Village. At that time, Dorothy was suffering from dementia related to Alzheimer’s disease. She was admitted pursuant to a written agreement (“the agreement”), which provided, in pertinent part:

“1. References to the Parties
“References to ‘we,’ ‘our,’ the ‘Facility,’ and to ‘our Facility’ are references to [the nursing home].
“References to ‘you’ and ‘your’ are references to any person signing this agreement as Resident or as the Responsible Party.
“There are also spaces for this Agreement to be signed by a Legal Representative and Responsible Party, if applicable, on your behalf.
“A Legal Representative is an individual who, under independent legal authority, such as a court order[,] has authority to act on the Resident’s behalf. Examples of a Legal Representative include a guardian, a conservator, and the holder of a Durable Power of Attorney executed by the Resident. Documents evidencing a person’s Legal Representative status must be provided to us. If you have a court appointed guardian or conservator he or she must sign this Agreement for it to be valid.
“A. Responsible Party is an individual who voluntarily agrees to honor certain specified obligations of the Resident under this agreement. Examples of a Responsible Party include a relative or a friend of the Resident. We may not require a person to sign this agreement as a Responsible Party unless the person has legal access to or physical control of the Resident’s available income or resources to pay for the care and services we provide. We may decline to admit any Resident who has no source of payment for all or part of the Resident’s stay.
“2. Limitations on the Obligations of a Legal Representative and Responsible Party under this Agreement
“We may not require a third party to guarantee payment to us as a condition of admission to, of expedited admission to, or of continued stay in our Facility.
“3. Obligations of a Legal Representative or Responsible Party under this Agreement
“If you sign this Agreement as a Legal Representative or Responsible Party you agree to use the Resident’s available income and resources to pay for the Resident’s care and services.”

(Emphasis added.)

The second page of the agreement had blank spaces for identification of the parties. In the space for “Resident,” Vicky wrote in the name of “Dorothy Willis.” Another space for the designation of “Resident’s Legal Representative (if applicable)” was left blank. Still another space for the designation of “Resident’s Responsible Party (if applicable)” contained the signature of “Vicky Willis.” The last page of the agreement, the signature page, contained lines with the identical designations. The signature page contained the signature of a “Representative of [the] Nursing Facility.” The lines designated for the signatures of the “Resident” and the “Resident’s Legal Representative (if applicable)” were left blank. The line designated for the “Resident’s Responsible Party (if applicable)” contained the signature of Vicky Willis.

The agreement also contained an arbitration provision, which provided, in pertinent part:

“[A]ny controversy, dispute, cause of action or claim now or hereafter existing between or among you and [the nursing home] or its agents, or which is asserted by one or more persons or entities (including, but not limited to, party to this Agreement) claiming any rights under this Agreement ... including] ... any claim arising out of, relating to, or concerning this Agreement in any way, and/or the care or treatment of you in the Facility, whether in contract, tort, based on statute, equity, ... including, but not limited to, negligence and wrongful death claims .... shall [be submitted] to binding arbitration.”

In May 2004, Dorothy Willis fell in the nursing home and broke her hip. In January 2005, she fell again and broke her neck. On January 26, 2005, a complaint styled “Dorothy Willis individually & Luther and Vicky Willis as her next friends” was filed in the St. Clair Circuit Court against Noland Health Services, Inc., The Village, and Stevens, who was the administrator of the nursing home (hereinafter collectively referred to as “Noland”). The complaint alleged, among other things, that Dorothy “was neglected and the care and treatment she received was substandard and did not meet the standard of care of the same or similar health care facilities.” It averred that “[s]aid negligent and wanton conduct on the part of [No-land], their agents, and/or assigns, was a breach of the standard of medical care,” and that “[a]s a direct and proximate result of such negligent, wanton, reckless, malicious and/or intentional conduct, [No-land] caused Dorothy Willis to suffer medical decline, ... a broken hip, ... and ... a broken neck.” It also alleged that Dorothy Willis had developed pneumonia as a direct result of her injuries and that she had not received prompt and appropriate emergency medical care following her injuries.

Count four of the complaint averred, in toto:

“26. Plaintiff re-adopts and re-alleges and incorporates the allegations in all preceding paragraphs as if fully set forth herein:
“27. [Noland] and [its] agents and/or assigns breached [its] contract with Plaintiff and Plaintiffs family in that [it] failed to comply with the terms and conditions set forth in the contract for admission. As a direct and proximate cause of said breach of contract, Plaintiff was caused to suffer great pain and mental anguish.
“WHEREFORE, PREMISES CONSIDERED, the Plaintiff hereby demands judgment against [Noland] for compensatory and punitive damages in a sum to be determined by the jury.”

(Emphasis added.)

On February 2, 2005, Dorothy Willis died. On February 25, 2005, Noland moved to compel arbitration of the claims against it based on the arbitration provision in the agreement. On February 28, 2006, Peter Wright, as administrator of Dorothy Willis’s estate, filed an amended complaint. The amended complaint “readopt[ed] and realleg[ed] each and every claim set forth in [the] original complaint.” It also added a wrongful-death claim, alleging that Willis had died from the broken neck and pneumonia as a proximate result of Noland’s “negligence and wanton breach of the standard of care.”

Noland answered the amended complaint, asserting that the wrongful-death claim was also due to be arbitrated. On September 19, 2006, the trial court denied the motion to compel arbitration. From that order, Noland appealed.

Our standard of review is well settled.

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[AJfter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)). “Absent live testimony, the trial court’s findings of fact carry no presumption of correctness and we will review the trial court’s factual and legal conclusions de novo.” W.D. Williams, Inc. v. Ivey, 777 So.2d 94, 98 (Ala.2000); see also Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988). The dispos-itive issue on appeal is whether Noland has met its burden of showing the existence of a contract requiring arbitration of the claims asserted in this action.

As a general rule, “a nonsignato-ry to an arbitration agreement cannot be forced to arbitrate her claims.” Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001). Nevertheless, Noland contends that the agreement is enforceable against Wright as Dorothy Willis’s personal representative, “notwithstanding the fact that Dorothy Willis did not personally sign it.” Noland’s brief, at 46. This is so, because, Noland argues, “Vicky Willis signed the arbitration agreement on Dorothy Willis’s behalf as Dorothy Willis’s ‘responsible party.’” Id. (emphasis added). Wright, however, contends that Vicky’s signature on the agreement as the “responsible party” was ineffective to bind Dorothy to the agreement. We agree with Wright.

It is undisputed that when Vicky was given the option to sign the agreement as a “responsible party” or as a “legal representative,” she chose the former option. The agreement explained that “[a] Legal Representative is an individual who, under independent legal authority, such as a court order[,] has authority to act on the Resident’s behalf’ and listed “a guardian, a conservator, and the holder of a Durable Power of Attorney executed by the Resident” as examples of legal representatives.

Wright contends that at the time of Dorothy’s admission to the nursing home, Vicky “did not hold power of attorney for Mrs. Willis, was not her guardian, and had never been appointed by [Dorothy] or by a court of competent jurisdiction to handle the affairs” of her mother-in-law. Wright’s brief, at 1-2. Noland argues that Wright is essentially estopped to deny that Vicky possessed a power of attorney. This is so, because, it insists, in paragraph one of the original complaint the Willises asserted: “Plaintiffs Luther Willis and Vicky Willis are her duly appointed attorneys in fact and the son and daughter-in-law of Dorothy Willis.” See Jones v. Kassouf & Co., 949 So.2d 136, 142 (Ala.2006)(Lyons, J., dissenting) (“ ‘Normally, factual assertions in pleadings and pretrial orders are considered to be judicial admissions conclusively binding on the party who made them.’ ” (quoting White v. ARCO/Poly- mers, Inc., 720 F.2d 1391, 1396 (5th Cir.1983))).

Wright, however, insists that a durable power of attorney can be created only in a manner and form consistent with Ala.Code 1975, § 26-1-2, which provides, in pertinent part:

“A durable power of attorney is a power of attorney by which a principal designates another his or her attorney in fact or agent in writing and the writing contains the words ‘This power of attorney shall not be affected by disability, incompetency, or incapacity of the principal’ or ‘This power of attorney shall become effective upon the disability, incompetency, or incapacity of the principal’ or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability, incompetency, or incapacity.”

(Emphasis added.) Wright contends that a party may not, merely through an averment in a pleading, circumvent the statutory requirements of a writing, which shows the unmistakable intent of the principal to create the relationship.

We need not, however, resolve the dispute over the implications of paragraph one of the original complaint. This is so, because in executing the agreement Vicky did not sign Dorothy’s name in any purported capacity and did not purport to be Dorothy’s legal representative. Vicky’s signatory role was, therefore, effectively that of a “next friend,” who “voluntarily agree[d] to honor certain specified obligations” of her mother-in-law. (Emphasis added.) It has long been established in this State, however, that one who purports to act merely as a “next friend” of a “non compos mentis” is “wholly without authority to make any contract that would bind her or her estate.” Page v. Louisville & Nashville R.R., 129 Ala. 232, 238, 29 So. 676, 678 (1901).

In that connection, the trial court found that “Dorothy Willis was not competent at the time her daughter-in-law signed the contract of admission in this case.” (Emphasis added.) Indeed, there is no conflict in the evidence, which includes medical reports as to Dorothy Willis’s mental capacity. One such report describes Dorothy as “an 86 year old demented female” (emphasis added), who was “[n]ot oriented to person, place or time.” In another medical report, she is described as “always confused.” Thus, we conclude that Vicky’s signature in the capacity of a next friend, or “responsible party,” was ineffective to bind Dorothy or her personal representative to the agreement.

In arriving at this conclusion, we have not overlooked Briarcliff v. Turcotte, 894 So.2d 661 (Ala.2004), or Owens v. Coosa Valley Health Care, Inc., 890 So.2d 983 (Ala.2004), also cited by Noland. Those cases are distinguishable. Owens involved an action by Linda Owens against the Coosa Valley Health Care Nursing Home (“Coosa Valley”) alleging personal injuries and wrongful death. Owens was the daughter and personal representative of Elma Tucker, who died while in the care of Coosa Valley. 890 So.2d at 984. The only signatories to any relevant admission documents were Coosa Valley and Owens. Id. However, Owens signed Tucker’s name to the admission documents as Tucker’s “Guardian/Sponsor.” 890 So.2d at 986 (emphasis added). Moreover, the admission agreement defined, in addition to Coosa Valley as the first party, “ ‘the undersigned Patient, Guardian and Sponsor (hereinafter known as “Patient ”)’ ” as the second party. 890 So.2d at 984 (emphasis added). Thus, the definition of “patient” included Owens, the plaintiff in the action, who was a signatory to the admission agreement. In holding that Owens was compelled to arbitrate her claims against Coosa Valley, we explained that it was “undisputed” that Owens signed the agreement “on behalf of Tucker,” as her guardian/sponsor, and that the “ ‘meaning of “Patient” [included] Patient and ... her ... guardian[], heirs, [and] executor! ].”’ 890 So.2d at 987 (emphasis added). In other words, Owens was personally bound, and there was no issue regarding Tucker’s mental capacity or Owens’s authority to act on Tucker’s behalf.

Briarcliff involved consolidated appeals from orders refusing to compel the arbitration of two wrongful-death actions in the Shelby Circuit Court, 894 So.2d at 663, which orders this Court reversed. 894 So.2d at 668. One action was prosecuted by David Turcotte, as personal representative of Noella Turcotte, deceased. 894 So.2d at 663. The other action was prosecuted by Kyra L. Woodman, as personal representative of Sarah Carter, deceased. Id. Turcotte and Carter had died while in the care of a “nursing home owned and operated by Briarcliff [Nursing Home, Inc., d/b/a Integrated Health Services at Briarcliff (‘Briarcliff) ].” 894 So.2d at 663. The signatories to the admission agreements were Briarcliff and each of the personal representatives. David Turcotte had signed in his capacity as a “‘Fiduciary Party,’” and Woodman had signed as “ ‘Attorney-In-Fact under [a] validly executed power of attorney.’ ” 894 So.2d at 664. As in Owens, there was no issue regarding the authority of either signatory/personal representative to execute the agreement on behalf of his or her admit-tee.

This case differs from Owens and Briar-cliff in two fundamental respects. First, unlike the plaintiffs in Owens and Briar-cliff Wright specifically challenges the efficacy of Vicky Willis’s signature to bind Dorothy Willis. As noted above, Vicky did not purport to sign the agreement as Dorothy’s “legal representative”; she signed only as one acting in the nature of a “next friend,” who “voluntarily agree[d] to honor certain specified obligations” of Dorothy. This fact was obviously known by the nursing home at the time Dorothy was admitted.

Second, unlike Wright, the plaintiff in Owens and the two plaintiffs in Briarcliff were signatories to an agreement to arbitrate. Although Vicky Willis signed the agreement, she was never the plaintiff, unlike Owens, Turcotte, and Woodman, who sued as personal representatives of their decedents. Moreover, Wright — who signed no relevant admission document— was substituted as the proper plaintiff before the trial court entered its order denying Noland’s motion to compel arbitration.

Noland next contends that Wright is bound to arbitrate because his amended complaint incorporates the breach-of-contract claim of the original complaint. This is so, because, it insists, Wright “manifested assent to the validity of the arbitration agreement by claiming the benefits of the [agreement]” through his pleadings. No-land’s brief, at 50 (emphasis added). For that proposition, Noland cites Lyles v. Pioneer Housing Systems, Inc., 858 So.2d 226 (Ala.2003); and Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131 (Ala.2000). The rule developed in those cases is that a party may not base an action on provisions in a contract while repudiating an arbitration clause in the contract.

“In [Southern Energy Homes, Inc. v.] Ard [, 772 So.2d 1131 (Ala.2000)], the Ards sued Southern Energy Homes, the manufacturer of the Ards’ mobile home, alleging a violation of Southern Energy’s express warranty, a violation of the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (‘the Magnuson-Moss Act’), and the negligent manufacture of the mobile home. The Ards also alleged fraud. Southern Energy sought to compel arbitration of the Ards’ claims on the basis of an arbitration provision contained in its express warranty. Evidence in the form of an affidavit by Southern Energy employee Don McNutt indicated that the Ards had requested and received service under the warranty on their mobile home from Southern Energy. The evidence also indicated that the Ards did not sign any written agreement with Southern Energy expressly calling for arbitration. The trial court denied Southern Energy’s motion to compel arbitration, and it appealed. After discussing the burdens imposed upon Southern Energy to establish its right to compel arbitration ..., this Court concluded that the trial court’s order denying arbitration was due to be reversed:
“ ‘The Ards are contractually bound to the arbitration provisions for two reasons. First, the affidavit of Don McNutt establishes, without contradiction, that the Ards have accepted the benefits of the warranty containing the arbitration provisions. This acceptance constitutes the Ards’ acceptance of the arbitration provisions themselves. Rush v. Atomic Electric Co., 384 So.2d 1067 (Ala.1980). Second, the Ards have sued Southern Energy on the theory, among others, of express warranty. The only express warranty included in the evidentiary materials is the one containing the arbitration provisions. A plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions. Value Auto Credit, Inc. v. Talley, 727 So.2d 61 (Ala.1999); Infiniti of Mobile, Inc. v. Office, 727 So.2d 42 (Ala.1999); Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998); Delta Constr. Corp. v. Gooden, 714 So.2d 975 (Ala.1998); Ex parte Dyess, 709 So.2d 447 (Ala.1997).’

772 So.2d at 1134-35....

“In Lyles [v. Pioneer Housing Systems, Inc., 858 So.2d 226 (Ala.2003) ], the Lyleses, also purchasers of a mobile home, sued the mobile-home manufacturer, Pioneer, alleging breach of contract, breach of express and implied warranties, breach of the Magnuson-Moss Act, negligence, and fraud. Pioneer sought to compel arbitration based upon an arbitration provision contained in its express warranty. Two months after the motion to compel arbitration was filed, the Lyleses dismissed their breach-of-express-warranty claim. After arguments on the motion to compel arbitration, the trial court entered an order granting the motion. Three days later the Lyleses voluntarily dismissed their Magnuson-Moss Act claim and then filed a motion to vacate the order compelling arbitration. The trial court denied that motion, and the Lyleses appealed. On appeal, they argued that the trial court erred in compelling arbitration because they had never entered into a written contract calling for arbitration. As in Ard, the Court in Lyles recognized that the arbitration provision was included in the express warranty, which was not a document that the Lyleses were required to sign, and it considered whether ‘the Lyleses availed themselves of the benefits of Pioneer’s written warranty, thus manifesting their agreement to the arbitration provision contained in it.’ 858 So.2d at 228. After discussing Ard, the Court analyzed the situation in Lyles as follows:

“ ‘Although the Lyleses voluntarily dismissed their express-warranty claim before the trial court ruled on Pioneer’s motion to compel arbitration, they did not voluntarily dismiss their Magnuson-Moss Act claim until after the trial court had issued its order compelling arbitration. Thus, when the trial court entered its ruling on the motion to compel arbitration the Lyleses’ Magnuson-Moss Act claim was still pending.
“ ‘In their complaint, the Lyleses made the following allegations in support of their Magnuson-Moss Act claim against Pioneer:
“ ‘ “Count Nine: Violation of Magnuson-Moss Warranty Act:
“ ‘ “37. [Pioneer] failed to perform • under its written warranties and complete repairs to the [Lyles-es’] mobile home as guaranteed in the express warranties. [Pioneer] failed in its efforts to properly repair defects in the mobile home in violation of 15 U.S.C. 2301 et seq.
“ ‘ “38. [The Lyleses] timely advised [Pioneer] of defects in their mobile home on numerous occasions and afforded [Pioneer] reasonable opportunity to comply with [its] warranties and complete repairs.
“ ‘ “39. As a proximate result, [the Lyleses] were caused damages including but not limited to, actual and consequential damages; attorneys’ fees, inconvenience, annoyance and mental anguish.”
“ ‘The only express or written warranty in the record is Pioneer’s express warranty, which contains the arbitration provision quoted above. Like the Ards, the Lyleses purported to claim the benefits of Pioneer’s express warranty by alleging that Pioneer should be bound to perform its duties under the warranty, while simultaneously repudiating the condition contained in the warranty that warranty disputes would be settled by arbitration. Because the Lyleses manifested assent to Pioneer’s written express warranty by availing themselves of its benefits, the trial court correctly held them to the conditions of the warranty by compelling arbitration as to the warranty disputes, as the arbitration provision found in the warranty stipulated.’

858 So.2d at 230 (footnote omitted).”

Springhill Nursing Homes, Inc. v. McCurdy, 898 So.2d 694, 698-701 (Ala.2004)(emphasis added).

Noland overlooks a fundamental distinction between this case and Ard and Lyles on which it relies for its assent-through-pleading argument. Those cases did not involve claims against a health-care provider for redress of medical injuries allegedly resulting from improper care or treatment. The nursing home is, however, “considered to be a ‘hospital’ [as defined in Ala.Code 1975, §§ 6-5-481 and -542(1),] and thus, ... is covered by the provisions of the [Alabama] Medical Liability Act” of 1987, Ala.Code 1975, § 6-5-540 et seq. (“the Act”), supplementing the Alabama Medical Liability Act of 1975, § 6-5-480 et seq. Ex parte Northport Health Serv., Inc., 682 So.2d 52, 55 (Ala.1996). Section 6-5-542(2) provides:

“The standard of care is that level of such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases. A breach of the standard of care is the failure by a health care provider to comply with the standard of care, which failure proximately causes personal injury or wrongful death. This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort and whether based on intentional or unintentional conduct.”

(Emphasis added.) The coverage of the Act “is broad; it applies to all actions alleging ‘liability’ was well as ‘error, mistake, or failure to cure, whether based on contract or tort.’ [It] encompasses contract claims alleging breach of express and implied warranties .... ” Mobile Infirmary v. Delchamps, 642 So.2d 954, 957 (Ala.1994) (emphasis added).

“Although the [Act] applies only to medical-malpractice actions, a plaintiff cannot avoid application of the [Act] by ‘creative pleading.’ This Court has consistently held that it is the substance of the action, rather than the form, that is the touchstone for determining whether an action is actually one alleging medical malpractice.”

Mock v. Allen, 783 So.2d 828, 832 (Ala.2000). Thus, the essence of any medical-malpractice action, regardless of how it is pleaded, is compliance with the standard of care set forth in the Act. In other words, the scope of the health-care provider’s duties is defined, not by a contract between the parties, but by the legislature.

This is a medical-malpractice action. In a nutshell, the allegations of the amended complaint are that Dorothy suffered injuries and death as the result of Noland’s “breach of the standard of medical care.” (Emphasis added.) Unlike the Magnuson-Moss Act claims in Lyles, namely, that Pioneer “failed to ... complete repairs to the [Lyleses’] mobile home as guaranteed,” Lyles, 858 So.2d at 230, which claims arose under Pioneer’s express written warranty, any express or implied promises in the agreement are encompassed within the Act, and Wright’s medical-malpractice claims are governed by the standard promulgated by the legislature, rather than written expressions of the nursing home.

Indeed, Wright’s breach-of-contract claim is set forth only in conclusory and generic terms. Although it alleges that Noland “breached [its] contract with Plaintiff and Plaintiff’s family ” (emphasis added), it contains no claims by the next friends, Luther Willis and Vicky Willis, in their individual capacities. Because Wright’s cause of action is governed by the Act — independent of the agreement— Wright cannot be said to have “manifested assent” to specific provisions of the agreement simply by averring a breach of that agreement. Consequently, Wright is not bound by the agreement or by the arbitration clause therein.

In short, Noland has directed us to no case on point holding that a nonsignatory personal representative is bound to arbitrate a medical-malpractice action seeking damages for the injuries and wrongful death of the nonsignatory decedent. It is well settled, of course, that, because the right to arbitrate is contractual, “a party may not be compelled to arbitrate a dispute, unless it has agreed to do so.” ECS, Inc. v. Goff Group, Inc. 880 So.2d 1140, 1145 (Ala.2003). See also Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002); Ex parte Lovejoy, 790 So.2d 933, 937 (Ala.2000); A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 361 (Ala.1990). Noland has presented no evidence showing that either Wright or Dorothy Willis expressly agreed to arbitrate claims against it, and Wright has not manifested an assent to arbitrate through his involvement in this action. Noland has, therefore, failed to carry its burden of demonstrating the existence of a contract binding Wright or the decedent to an arbitration provision.

For these reasons, the trial court did not err in denying the motion to compel arbitration. That order is, therefore, affirmed.

AFFIRMED.

COBB, C.J., and PARKER, J., concur.

LYONS and MURDOCK, JJ., concur in the result.

SEE, STUART, SMITH, and BOLIN, JJ., dissent.

SEE, Justice

(dissenting).

The complaint filed on Dorothy Willis’s behalf alleges that' Noland Health Services, Inc., The Village at Cook Springs, LLC, and Ed Stevens (hereinafter collectively “Noland”) breached a contract to provide nursing-home services to Dorothy. Vicky Willis, Dorothy’s daughter-in-law, signed the contract admitting Dorothy into the nursing-home facility. The main opinion holds that because the underlying action is in substance a medical-malpractice action and because the complaint alleges breach of contract in only “eonclusory and generic terms[,] ... [Peter] Wright[, the administrator of Dorothy’s estate,] cannot be said to have ‘manifested assent’ to specific provisions of the agreement simply by averring a breach of that agreement.” 971 So.2d at 690 I disagree; therefore, I respectfully dissent.

In the initial complaint, the plaintiffs— Dorothy along with Luther Willis and Vicky Willis, Dorothy’s son and daughter-in-law, as next friends — alleged that “Plaintiff[ ] and Plaintiffs family contracted with [Noland] to provide [Dorothy] with twenty-four hour skilled care, supervision, and assistance.... Pursuant to said contract ... [Noland] owed a duty to Dorothy Willis to protect and promote her rights ... to be free from abuse and neglect and to receive adequate medical care.” In the first amended complaint, Wright, the administrator of Dorothy’s estate, “readopt[ed] and reallege[d] each and every claim set forth in the original complaint,” which necessarily included the factual allegation that a contractual relationship existed. The complaint alleges that “[Noland] and [its] agents and/or assigns breachéd [its] contract with Plaintiff and Plaintiffs family in that [it] failed to comply with the terms and conditions set forth in the contract for admission.” The only contract reflected in the record is the admission contract containing the arbitration provision.

The main opinion concludes that Wright is not bound by the arbitration provision in the admission contract because, it reasons, even though Wright has claimed that No-land breached the admission contract, Wright did not succeed in asserting a breach-of-contract claim. Although it may be true, as the main opinion asserts, that Wright has put forward, in substance, a theory of recovery based on medical malpractice, the issue is not what the claim is in substance, but, instead, whether Dorothy or Wright had manifested assent to or ratified the admission contract. If either manifested his or her assent to or ratified the admission contract, Wright must arbitrate the claims as that contract requires.

The main opinion argues that, although Wright avowed the contract and asserted a cause of action for the breach of that contract, Wright did not actually raise a breach-of-contract claim and, therefore, did not manifest his assent to the admission contract. First, I cannot agree that Wright has failed to assert a breach-of-contract claim because that claim, although clearly intended to allege a breach of contract, is phrased in “eonclusory and generic terms.” The plaintiffs specifically alleged that a contract exists. The breach-of-contract claim is expressly based on No-land’s “fail[ure] to comply with the terms and conditions set forth in the contract for admission.” This language, along with the other factual allegations in the complaint, is sufficient to state a claim of breach of contract. See Cain v. Howorth, 877 So.2d 566, 575 (Ala.2003) (“[A] complaint is suffi-dent if it puts the defendant on notice of the claims against him-”).

Second, and more importantly, I also disagree with the contention that, because the substance of the claim sounds in tort rather than in contract, Wright did not manifest his assent to the admission contract and is not bound by it. In support, the main opinion cites § 6-5-542(2), Ala. Code 1975, a part of the Alabama Medical Liability Act of 1987, § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”), which provides:

“The standard of care is that level of such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases. A breach of the standard of care is the failure by a health care provider to comply with the standard of care, which failure proximately causes personal injury or wrongful death. This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort and whether based on intentional or unintentional conduct.”

However, in Ex parte Addiction & Mental Health Services, Inc., 948 So.2d 533, 535 (Ala.2006), this Court rejected the argument that “the AMLA applies to all claims against health-care providers arising out of the relationship between the health-care provider and the patient.” Instead, as the main opinion recognizes, the AMLA regulates only actions where the plaintiff alleges to have suffered a “medical injury.” Ex parte Addiction & Mental Health Servs., 948 So.2d at 536.

Further, the AMLA on its face does not bar a plaintiff from joining a contract claim with a medical-malpractice claim, nor does it necessarily bar a plaintiff from seeking recovery for medical malpractice under a breach-of-contract theory. See § 6-5-542(2), Ala.Code 1975 (“This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort....”). In Collins v. Ashurst, 821 So.2d 173, 176 (Ala.2001), this Court held that the AMLA did not bar “more than one type of action for medical malpractice [from being] brought” under it. In Collins, the plaintiff attempted to recover for the same injury under three different theories: medical malpractice, assault and battery, and trespass to the person. We held that “the trial court erred in determining that the AMLA allows for only one cause of action, and, consequently, in striking Collins’s counts for assault and battery and trespass.” Collins, 821 So.2d at 177. Although each claim would have to be brought following the requirements of the AMLA, we held that a plaintiff could state a claim for the same injury under multiple legal theories. We based our reasoning, in part, on the statements in the AMLA that it applies to actions “whether in contract or tort.” 821 So.2d at 176. Thus, it appears that a plaintiff could join a breach-of-contract claim with a medical-malpractice claim, or even bring a breach-of-contract claim based on a breach of the medical standard of care.

The main opinion relies on our cases holding that a party may not, through creative pleading, frame a medical-malpractice claim as a breach-of-contract claim and thereby avoid the specific requirements of the AMLA. In Mobile Infirmary v. Delchamps, 642 So.2d 954, 956-57 (Ala.1994), the plaintiff attempted to avoid the statute of limitations of the AMLA by alleging fraud and breach of warranty instead of medical malpractice. In Mock v. Allen, 783 So.2d 828, 834-35 (Ala.2000), the plaintiff argued that the AMLA did not apply to his case so that he could avoid the application of § 6-5-551, Aa.Code 1975, which limits the admissibility of “similar acts” evidence. In both of those cases, the plaintiffs attempted to evade the requirements of the AMLA through creative pleading.

The complaint in the case before us does not attempt to recast a medical-malpractice claim as a breach-of-contract claim to circumvent the procedural and substantive requirements of the AMLA; instead, Wright alleges both breach of contract and medical malpractice. That is, in addition to alleging a medical-malpractice claim, Wright also recognizes the contract and asserts rights under it. Under Collins, Wright was entitled to bring his claims under multiple legal theories. Collins, 821 So.2d at 177. The two claims are not necessarily mutually exclusive; however, even if the claims are redundant, because Wright has not attempted to evade the substantive and procedural requirements of the AMLA, there is no reason for, nor any authority to support, this Court’s decision to recast the complaint in this case.

The plaintiff is the “master of his complaint.” See BP Chems. Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir.2002) (“One might read the [United States Supreme Court’s] discussion as extending to a district judge broad discretion to recast a plaintiffs claims to fit the judge’s understanding of the case. Yet we can scarcely imagine the Court intended that result. Such an expansion of judicial power is at loggerheads with liberal notice pleading rules and our settled understanding that a plaintiff is the master of his complaint.”). If a plaintiff wishes to plead herself out of court and into arbitration, this Court allows her to do so. As we recognized in Ex parte Blankenship, 893 So.2d 303, 306 (Ala.2004),

“ ‘[i]t is a “well-settled rule that a party is bound by what it states in its pleadings.” ’ Help At Home, Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 753 (7th Cir.2001); Lucas v. Burnley, 879 F.2d 1240, 1242 (4th Cir.1989); Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir.1983). Thus, ‘a plaintiff can ... plead himself out of a claim by including unnecessary details contrary to his claims.’ Sprewell[ v. Golden State Warriors,] 266 F.3d [979] at 988 [ (9th Cir.2001) ] (emphasis added) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293 (9th Cir.1998)). See also Soo Line R.R. v. St. Louis Southwestern Ry., 125 F.3d 481, 483 (7th Cir.1997) (A plaintiff can “plead himself out of court by alleging facts which show that he has no claim, even though he was not required to allege those facts.” ’); Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 212, 314 So.2d 663, 673 (1975) (‘“The pleader must be careful not to allege facts that constitute a defense to his claim for relief, or, for that matter, a defense to his defense.” ’Xquoting 2A Moore’s Federal Practice ¶ 8.02).”

In Blankenship, the plaintiff asked this Court to disregard factual allegations in the complaint that established the defendant’s immunity from suit. We refused, stating: “In effect, [the plaintiff] urges this Court to amend her complaint by striking paragraph seven, in order to the eliminate the jurisdictional impediment that paragraph presents to her claim.” 893 So.2d at 306. We noted that although she did not need to plead paragraph seven in order to state a claim, “[h]aving done so, ... she cannot avoid the legal consequences of those factual allegations.” Blankenship, 893 So.2d at 306 (footnote omitted). Similarly, here Wright pleaded sufficient facts to establish that there was a contract, and he similarly should be bound to the legal consequences of those allegations.

Further, by affirmatively alleging the existence of the contract, Dorothy Willis and Wright ratified the contract. In Georgia Power Co. v. Partin, 727 So.2d 2 (Ala.1998), we dealt with similar circumstances. Partin sued Georgia Power after he was injured in a fall from a catwalk on the end of a railroad car. Partin alleged that Georgia Power behaved negligently or wantonly in failing to correct unsafe work procedures, in maintaining the site where Partin was injured, and in failing to provide adequate lighting and a crosswalk over the train. Partin then amended his complaint to state a breach-of-contract claim against Georgia Power, arguing that Georgia Power had breached an operations agreement that it had entered into with Orba Corporation, which operated the coal-loading facility on the site. The operations agreement, which contained an, arbitration provision, provided that Georgia Power had certain obligations in maintaining the site where Partin was injured. The trial court granted permission to amend; thus, Partin stated a breach-of-contract claim as a third-party beneficiary of the operations agreement as well as his negligence cause of action based on the same injury.

Georgia Power moved to compel arbitration of the claims pursuant to the arbitration provision. Partin argued that he was not bound by the arbitration provision because he was not a signatory to the operations agreement between Georgia Power and Orba. This Court noted the “well-established principle of Alabama law that a contract made for the benefit of a third person may, at his election, be accepted and enforced by him.” Partin, 727 So.2d at 5. We further stated: “ ‘The law is clear that a third party beneficiary is bound by the terms and conditions of the contract that it attempts to invoke. “The beneficiary cannot accept the benefits and avoid the burdens or limitations of a contract.” ’ ” Partin, 727 So.2d at 5 (quoting Interpool Ltd. v. Through Transp. Mut. Ins. Ass’n Ltd., 635 F.Supp. 1503, 1505 (S.D.Fla. 1985), quoting in turn Trans-Bay Eng’rs & Builders, Inc. v. Hills, 551 F.2d 370, 378 (D.C.Cir.1976)). The Court held that, because Partin brought the claim as a third-party beneficiary of the operations agreement, which he had not signed, he had, in effect, agreed to all of the terms of the contract, including the arbitration provision.

As in this case, the issue in Partin was whether Partin had assented to the contract by ratifying it. “ ‘Assent must be manifested by something. Ordinarily, it is manifested by a signature. [However], [a]ssent may be manifested by ratification.’ ” Ex parte Cain, 838 So.2d 1020, 1027 (Ala.2002) (quoting Southern Energy Homes, Inc. v. Hennis, 776 So.2d 105, 108 (Ala.2000)). Thus, by invoking the contract, Partin demonstrated that he agreed to its terms and was willing to be bound by it, even though he did not sign the contract. As this Court has held, “[a] party, by his actions and acceptance of the benefits of a contract and by operating under that contract, may ratify and confirm it, even though his actual signature is not affixed.” Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 305 (Ala.1986).

Other cases have held that a third-party beneficiary manifests assent to a contract by pleading a breach of that contract. In Southern Energy Homes, Inc. v. Ard, 772 So.2d 1131, 1134 (Ala.2000), the Ards had purchased a mobile home manufactured by Southern Energy. They sued, alleging a breach of express warranty, a Magnuson-Moss Act violation, and the negligent manufacture for the mobile home. Southern Energy moved to compel the arbitration of the Ards’ claims on the basis of an arbitration provision in the express warranty for the mobile home. The trial court denied the motion, finding that the Ards had not signed the warranty. This Court reversed the order denying the motion to compel for two reasons. First, the Ards had accepted the benefits of the express warranty by requesting and receiving service on the mobile home as provided by the express warranty. Second, the Ards had brought their claim on the theory, among others, of express warranty. The only express warranty in evidence was the one containing the arbitration provision. This Court held that “[a] plaintiff cannot simultaneously claim the benefits of a contract and repudiate its burdens and conditions.” Ard, 772 So.2d at 1184. Therefore, we compelled arbitration.

The main opinion would distinguish Ard by suggesting that, because any rights asserted under the admission contract were cumulative to those provided in the AMLA, Wright could not assert any rights under the contract. However, Partin suggests that it is the “attempt[ ] to invoke” the contract that matters. Partin, 727 So.2d at 5. The inquiry is whether the plaintiff assented to the terms of the contract. Here, Wright admitted that there was a binding contract, and he attempted to sue under it. In this case, there would have been no breach-of-contract claims against Noland absent the contract that provided for Dorothy to be admitted into the nursing-home facility. See Ex parte Dyess, 709 So.2d 447, 451 (Ala.1997) (plurality opinion) (“Dyess’s claims against American Hardware are so closely related to the insurance policy that Dyess must follow its terms even though he did not sign it. In addition, Dyess’s claims would not exist but for the contract between Jack Ingram Motors and American Hardware.”). Dorothy received the benefits of the contract because Noland provided nursing-home services to Dorothy pursuant to the admission contract. Further, both Dorothy and Wright brought the action on a breach-of-contract theory. Thus, like the plaintiffs in Partin and Ard, Dorothy and Wright have ratified and manifested their assent to the admission contract, and Wright cannot now “arbitrarily pick and choose between the provisions in the contract that [are] advantageous to him and the one provision he [thinks is] not— the arbitration provision.” Delta Constr. Corp. v. Gooden, 714 So.2d 975, 981 (Ala.1998).

Further, the mere assertion of a medical-malpractice claim does not, in itself, render void in its entirety a contract between the parties, including their agreement to arbitrate a future dispute. See, e.g., Owens v. Coosa Valley Health Care, Inc., 890 So.2d 983 (Ala.2004) (compelling the arbitration of a medical-malpractice action against a nursing home). Where there is a valid and binding arbitration agreement, as here, the question is whether the scope of the arbitration agreement covers the medical-malpractice claim. Dorothy’s admission contract requires the arbitration of any “claim.” The arbitration provision defines a “claim” as

“any controversy, dispute, cause of action, or claim now or hereafter existing ... not limited to ... any claim arising out of, relating to, or concerning this Agreement in any way, and/or the care or treatment of you in the Facility, whether in contract, tort, based on statute, equity, otherwise, including, but not limited to, negligence and wrongful death claims.... It is the intention of the parties to encompass within this provision and the term ‘Claim’ the broadest possible scope of claims, controversies, disputes, and causes of action.... ”

The language of the arbitration provision encompasses this medical-malpractice action. The claims in the complaint “aris[e] out of, relat[e] to, or concern ... the care or treatment of [Dorothy] in the Facility.” Therefore, because Wright is bound by the admission contract, he must arbitrate Dorothy’s medical-malpractice claim.

Had Wright in these circumstances brought only a breach-of-contract action and forgone the tort claim, even if the breach-of-contract claim had alleged only medical injury, I do not believe that there would be any doubt that under our caselaw he would be bound by the arbitration provision. The claim would have to comply with the AMLA’s procedural and substantive requirements, but there is nothing in the AMLA that requires the plaintiff to pursue the claim under a particular legal theory. See § 6-5-542(2), Ala.Code 1975 (“This definition applies to all actions for injuries or damages or wrongful death whether in contract or tort...Collins, 821 So.2d at 177 (holding that a plaintiff could bring an action for a medical injury under multiple legal theories). Yet, because Wright joined that breach-of-contract claim with a medical-malpractice claim, the main opinion, in effect, renders the contract void. There are therefore two implicit holdings of the main opinion: (1) that a plaintiff cannot bring an action based on a medical injury under the theory of breach of contract, and (2) that a party cannot contract for a standard of care higher than that specified in the AMLA. The first proposition appears to contradict our holding in Collins, discussed above, and I am unaware of caselaw establishing the second proposition.

Dorothy Willis benefited from the admission contract, and her personal representative, Wright, expressly invokes that contract. Wright cannot now deny being bound by it. Because the arbitration provision of the contract encompasses this dispute, I believe that the trial court should have compelled arbitration; therefore, I respectfully dissent.

BOLIN, J., concurs.

      . Such a holding may violate the constitutional provisions prohibiting the impairment of contracts. See John E. Nowak & Ronald D. Rotunda, Constitutional Law 405 (4th ed.1991) (noting that the Contracts Clause in the United States Constitution restricts the power of state or local governments to substantially impair a contractual relationship unless the state law is narrowly tailored to promote a significant and legitimate public purpose).


author: CRAWLEY, Presiding Judge.

text:
    Lindburgh JACKSON and Kathy Matthews v. CITY OF AUBURN, Alabama Power Company, and Lightwave Technologies, LLC.
    2031010.
    Court of Civil Appeals of Alabama.
    April 7, 2006.

      Robert D. Drummond, Jr., Fairhope, for appellants.
    Randall Morgan and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee City of Auburn.
    Sterling G. Culpepper, Jr., and Louis M. Calligas of Balch & Bingham, LLP, Montgomery, for appellee Alabama Power Company.
    Steven K. Herndon and H. Robert Johnston of Gidiere, Hinton & Herndon, Montgomery, for appellee Lightwave Technologies, LLC.
   On Applications for Rehearing

CRAWLEY, Presiding Judge.

The opinion of this court issued on June 24, 2005, is withdrawn, and the following is substituted therefor.

In December 1978, Lindburgh Jackson became the co-owner of a parcel of property fronting Donahue Drive in Auburn, Alabama. At that time, Alabama Power Company (“APCo”) maintained power lines across and a power pole on that parcel of property. On April 25, 1983, Jackson and his co-owner, Samuel Harris, through their attorney, sent a letter to APCo regarding the power lines and the pole; in that 1983 letter, Jackson and Harris stated that, after discussions with an APCo official who informed them that the power lines could not be moved, they had “no choice but to seek damages or to work out some arrangement with [APCo] which will permit the full utilization of their property.” Despite the fact that APCo took no action to move the power lines or the pole or to otherwise make arrangements with Jackson and Harris, no legal action was taken by Jackson and Harris at that time.

In January 1986, Jackson and Harris had another attorney send another letter to APCo. The 1986 letter gave APCo 30 days to “rectify this particular situation” and threatened legal action if a satisfactory solution was not obtained. Again, APCo made no effort to rectify the situation and no legal action was taken by Jackson and Harris.

Jackson became the sole owner of the property in 1996. In May 1997, he personally wrote a letter to APCo in which he stated “for the last fourteen years we have been going around in circles.... This is a notice that Alabama Power employee [sic] are not to trespass on my property unless given permission.” In addition, the letter demanded $10.00 per day in damages for traffic signals that had been hung on the power pole by the Alabama Department of Transportation (“ALDOT”).

In June 1997, Jackson had a third attorney write another letter to APCo, the City of Auburn (“the City”), and ALDOT. The June 1997 letter focused on the traffic-signal issue, stating that “[APCo] may have an easement for the utility poles” and demanding $10.00 per day for the past six years the traffic signals had been in place and an agreement for $10.00 per day rent for the continued presence of the traffic signals. Again, Jackson threatened legal action. APCo, the City, and ALDOT took no steps to change the situation, and Jackson did not sue.

In October 1999, Jackson conveyed the property to his daughter, Kathy Matthews. Jackson continued to utilize the property for his business. APCo’s power lines and pole remained on the property. Sometime during the months between November 2000 and March 2001, Lightwave Technologies, LLC (“Lightwave”), began installing fiber-optic cable to the existing power pole on the property. Lightwave had entered into a pole-sharing agreement with APCo. The City had authorized Lightwave to place its cable and had established the route for such placement by ordinance.

In September 2003, Jackson sued APCo; the City; Joseph McGinnis, the director of ALDOT; and Lightwave. In the complaint, Jackson alleged that each of the defendants had trespassed on the property and that APCo and the City and Lightwave and the City had separately conspired to commit trespass on the property. Jackson also sought a declaratory judgment regarding an alleged prescriptive easement claimed by APCo. Finally, he asserted a claim against the City and Lightwave under 42 U.S.C. § 1983. Matthews was added as a plaintiff in an amended complaint in March 2004; that complaint added a “due-process” claim against the defendants.

McGinnis filed a motion to dismiss; he was later dismissed from the suit by agreement. All other defendants filed motions for a summary judgment; the trial court entered a summary judgment for all defendants. Jackson and Matthews appealed to the Alabama Supreme Court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence 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); see Ala.Code 1975, § 12-21-12(d).

Jackson and Matthews appeal the summary judgment, arguing, in general, that the summary judgment is improper because the trial court ignored the genuine issues of material fact. However, Jackson and Matthews specifically challenge the trial court’s conclusions that APCo had established, as a matter of law, a prescriptive easement over the disputed property; that APCo’s prescriptive easement could be apportioned as a matter of law; and that APCo could not be hable for trespasses committed before the establishment of its prescriptive easement. In addition, Jackson and Matthews argue that the trial court failed to declare the scope of APCo’s prescriptive easement.

In response to the City’s argument that their lawsuit was barred because they failed to provide the requisite notice to the City pursuant to Ala.Code 1975, § 11-47-23, Jackson and Matthews argue that their lawsuit is not barred because the trespass of which they complain is a continuous one. Jackson and Matthews fail on appeal to challenge the entry of the summary judgment on the “due-process” claim against all of the defendants and the § 1983 claims against the City and Lightwave; therefore, they have waived those particular issues, and the summary judgment, insofar as it relates to the § 1983 and “due-process” claims, is affirmed. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (stating general principle that the failure to present and argue an issue in an appellant’s brief amounts to a waiver of that issue on appeal).

Jackson and Matthews first complain that the trial court failed to enter a declaratory judgment regarding the scope of the prescriptive easement claimed by APCo. Although the trial court did not expressly determine the width of the easement or establish any parameters of the easement, APCo argued, and the trial court must have implicitly determined, that APCo’s easement would “extend to all uses directly or incidentally conducive to the advancement of the purposes for which the right of way was acquired, and the owner' retains merely the title in fee, carrying the right to make such uses as in no way interferes with the full and free exercise of the easement.” Alabama Power Co. v. Berry, 222 Ala. 20, 24, 130 So. 541, 544 (1930). In addition, APCo argues that it established, through the undisputed testimony of one of its employees, that the easement has a width of 30 feet and extends from the ground to the sky. See, generally, Snider v. Alabama Power Co., 346 So.2d 946, 949 (Ala.1977) (explaining that when no description of a right-of-way is available, the easement holder is entitled to “a reasonable, convenient and accessible way” depending on the condition of the area, the purpose for which the easement was intended, and the nature of the acts required to make use of the easement). However, even if the trial court determined, as it must have, that APCo’s easement is 30 feet wide and extends from the ground to the sky, the trial court could not have, based on that determination alone, resolved the issue of the apportionability of APCo’s easement. Thus, we will examine the summary judgment in favor of each defendant in turn.

Because Jackson and Matthews’s issues on appeal concerning the summary judgment in favor of the City on the trespass and conspiracy claims are more easily disposed of than the issues on appeal concerning the summary judgment in favor of APCo and Lightwave, we will address those issues concerning the claims against the City first. In its summary-judgment motion, the City argued that Jackson and Matthews failed to comply with § 11^17-23, the municipality nonclaim statute, which requires a claimant to give notice to a municipality of a tort claim within six months of the accrual of the cause of action. See, generally, Buck v. City of Rainsville, 572 So.2d 419, 419 (Ala.1990). Jackson filed his claim with the City on September 10, 2003; Matthews filed her claim on January 30, 2004. Jackson and Matthews contend that the trespass they complain of in the present case is a continuing tort. Therefore, Jackson and Matthews conclude, they did give notice within six months of the accrual of their cause of action and therefore are entitled to maintain a cause of action against the City for the trespasses committed from six months before their filing of their respective notices and thereafter.

In City of Clanton v. Johnson, 245 Ala. 470, 475, 17 So.2d 669, 672 (1944), our supreme court held that an action against a city for an abatable nuisance arising from the operation of the city’s sewage system was presented within six months of its accrual despite the fact that the sewer system had been installed more than six months before the presentment of the claim. The court determined that the claim was timely presented because the cause of action for an abatable nuisance arises at the time the harmful consequences occur and because each occurrence of the abatable nuisance is a separate cause of action. Johnson, 245 Ala. at 473, 17 So.2d at 672. Our supreme court has likewise held that “[a] structure maintained on another’s property is a continuing trespass .... [that] creates successive causes of action.” Alabama Power Co. v. Gielle, 373 So.2d 851, 854 (Ala.Civ.App.1979).

Therefore, based on Gielle and Johnson, the City was not, on the basis of the nonclaim statute, entitled to a summary judgment on any trespass claims arising during the six months before and any period subsequent to the filing of Jackson’s and Matthew’s respective notices under the nonclaim statute. The civil-conspiracy claims against the City, which have their genesis in the supposed establishment by the City of the route over which Lightwave was to install its cables, are barred by the nonclaim statute, however, because the ordinance establishing the route was enacted in February 2000 and the cables were strung, at the latest, in March 2001 (i.e., more than six months before Jackson and Matthews filed their respective notices under the nonclaim statute).. The summary judgment, on the remaining trespass claims against the City may be affirmed on an alternate ground, however.

As the City pointed out in its summary-judgment motion, the City does not own the pole or any of the lines or cables at issue in this ease. Jackson and Matthews do not dispute those facts and, instead, focus on the City’s authorization of the placement of Lightwave’s cable by ordinance, which would pertain only to the conspiracy claim. Because trespass is the “ ‘entry on the land of another without express or implied authority,’ ” Central Parking Sys. of Alabama, Inc. v. Steen, 707 So.2d 226, 228 (Ala.1997) (quoting Foust v. Kinney, 202 Ala. 392, 393, 80 So. 474, 475 (1918)), the City’s liability for trespass would have to be premised on its or its agents’ entering Jackson and Matthews’s property. Jackson and Matthews have not presented substantial evidence indicating that the City or any of its agents ever entered the property, and, therefore, they failed to overcome the City’s motion for a summary judgment. The summary judgment in favor of the City on the trespass and conspiracy claims is affirmed.

We will now proceed to a discussion of the summary judgment in favor of APCo. APCo’s motion for a summary judgment was based, in large part, on APCo’s assertion of a prescriptive easement over the disputed property. APCo contended that it had run power lines over the disputed property since 1930, when, it alleged, the power lines were constructed in a city right-of-way along what was then Grouse Road. The power pole located on the disputed property was first erected in 1962. APCo pointed out that Jackson had been co-owner of the property since 1978 and that Jackson had complained about the power lines and pole since April 1983. Thus, APCo argued, it had a long-established prescriptive easement and Jackson and Matthews could not maintain an action for trespass against it. In addition, it argued that, under the doctrine of laches, Jackson’s and Matthews’s delay in bringing suit barred the present action. Because the existence of a prescriptive easement is central to the determination of the issues presented in this case, we will first consider whether the trial court properly determined that APCo had established a prescriptive easement as a matter of law.

“To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under a claim of right, exclusive, continuous, and uninterrupted, with actual, or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner.”

Bull v. Salsman, 435 So.2d 27, 29 (Ala.1983).

APCo’s submissions in support of its summary-judgment motion indicated that it had maintained power lines over the disputed property since 1930 and that it had maintained a power pole on the disputed property since 1962. However, we need not decide whether APCo had established its prescriptive easement in 1930 or in 1962 because Jackson and Matthews concede that the April 1983 letter may be construed as the date upon which APCo’s use of the property became adverse to their interests. That being the case, APCo’s continued use of the property from April 1983 to September 2003 was clearly adverse to Jackson and Matthews. Thus, as Jackson and Matthews also apparently concede, APCo established a prescriptive easement, at the latest, in April 2003. Jackson and Matthews fail to comprehend the implication of their concessions. They argue that the establishment of the prescriptive easement in April 2003 would not bar an action on APCo’s trespasses committed before that date. Their argument is unsupported by the law.

“It is a general theory underlying adverse possession that the title, once matured, relates back to the beginning of the adverse holding; and under such theory, it is presumed that the origin of the title was rightful, not wrongful, that the possession which has matured it was in support, not in derogation, of the rightful title, and that the claimant, who by a possession pursuant to law has matured a title, has been the owner of the title from the beginning. After the title has matured the former owner of the land cannot call the adverse possession owner to account for any actions done to the land in the course of the possession that has ripened such party’s right and title to it.”

3 Am.Jur.2d Adverse Possession § 250 (2002)(footnotes omitted). As explained by the United States Court of Appeals for the Fifth Circuit,

“[t]o hold' otherwise would create an anomalous, indeed an impossible, situation, heretofore unheard of in the law of real property. A situation in which one, whose title has been made so perfect by uninterrupted possession that it has become entitled to and has obtained judgment in a real action for title and possession, finds itself, in that same real action, held accountable, to the defendant in the judgment, for the very acts of possession which established its title.”

Counce v. Yount-Lee Oil Co., 87 F.2d 572, 575 (5th Cir.1937).

The Fifth Circuit Court of Appeals continued to explain the inconsistency inherent in allowing a prior owner to sue the prescriptive owner for trespass arising from the very actions that served to establish title, stating that the answer to the question is found

“in the general theory which underlies prescription, the theory of relation by presumption, the theory that once matured, the title relates back to the beginning of the prescriptive period.... There is no place in theory of prescription or limitation for the contention put forward, that after the title has matured, the former owner of the land can call the [prescriptive or] limitation owner to account, for any of his actions done, on or to the land, in the course of the unchallenged possession, that has ripened his right and title to it.”

Counce, 87 F.2d at 576. As more succinctly stated by the Court of Appeals of Oregon, “[w]hen it is considered that each act comprising the elements of adverse possession constitutes a trespass, the relation back doctrine is necessary to put an end to a dispute over the ownership of real property _” Breuer v. Covert, 47 Or.App. 225, 232, 614 P.2d 1169, 1173 (1980). An easement acquired by prescription is treated similarly: “[U]pon the running of the prescriptive period and the consequent creation by prescription of an easement, all acts of adverse use contributing to the creation by prescription of such easement become privileged retroactively.” Restatement of Property § 465 cmt. a. (1944).

Based on the above-quoted principles, the former owner of property-acquired by adverse possession cannot maintain a suit for trespass against the current owner once the current owner has established title by his adverse possession. Although most of the quotations above are based on principles underlying adverse possession, the only major difference between the doctrines of prescription and adverse possession is the difference in the rights acquired by each: one who establishes adverse possession of property obtains title to the property while one who establishes an easement by prescription establishes only a right to use the property. See 7 Thompson on Real Property § 60.03(b)(6)(I) (Thomas ed.1994). Therefore, we conclude that the trial court correctly determined that Jackson and Matthews cannot maintain an action against APCo for the trespasses that gave rise to the prescriptive easement and that it properly entered a summary judgment in favor of APCo on the trespass claim against it.

In order to determine whether the summary judgment in favor of Light-wave on the trespass and conspiracy claims against it and the summary judgment in favor of APCo on the conspiracy claim against it were proper as well, we must next consider whether APCo has the right to apportion its prescriptive easement and whether its apportionment to Lightwave was within the scope of the prescriptive easement. If APCo has the right to apportion the easement and the apportionment was within the scope of the easement, then Lightwave could not have committed a trespass and APCo and Lightwave could not have conspired to commit a trespass. If, however, APCo cannot apportion its prescriptive easement, or if the apportionment to Lightwave exceeds the scope of the easement, Light-wave’s actions could amount to trespassing on the property and APCo could, depending on facts that would be developed on remand, be shown to have conspired with Lightwave to commit a trespass.

Lightwave argues that the Alabama Supreme Court has already determined the issue of the apportionability of power-line easements in Cousins v. Alabama Power Co., 597 So.2d 683 (Ala.1992). Jackson and Matthews, however, argue that Cousins is distinguishable in that it involved two express easements and an easement acquired by condemnation and not a prescriptive easement. Discussions of Cousins and of the law regarding both the apportionability of easements and the scope of prescriptive easements will be necessary to decide whether APCo has the right to apportion the prescriptive easement in the present case and whether the apportionment to Lightwave is within the scope of APCo’s prescriptive easement.

The term “apportionability” in reference to easements refers to the easement owner’s right to divide the easement “to produce independent uses or operations.” See Restatement of Property § 493 cmt. a. (1944). In general, an exclusive easement in gross is apportionable to the extent the additional use is “authorized by the manner or terms of [the easement’s] creation.” Id. at cmt. c. An easement in gross is an easement that “benefits a particular person or persons (or business or organization) whether or not they own another piece of land”; that is, the person or entity owning the easement is benefited personally rather than the benefit of the easement accruing to another piece of land. 7 Thompson on Real Property § 60.02(f)(2) (Thomas ed.1994); 4 Powell on Real Property § 34.02[2][d] (2000). “An exclusive easement grants unfettered rights to the owner of the easement to use the easement for purposes specified in the grant ‘to the exclusion of all others,’ ” including the ser-vient owner. Thompson on Real Property, supra, § 60.04(b)(2). APCo’s prescriptive easement in the present case is an exclusive easement in gross because it permits APCo to use the easement for the construction and maintenance of power lines and precludes, by its nature, Jackson and Matthews from using the easement for that purpose.

Cousins involved whether APCo could apportion three exclusive easements in gross — two created by express grant and one created by condemnation. The express easements stated that APCo had the right to construct, operate, and maintain electric transmission lines and telegraph and telephone lines. Cousins, 597 So.2d at 686. The condemnation order granted APCo “ ‘the right to construct and erect over said lands such tower, pole and wire lines, and all appliances necessary, convenient and useful in connection therewith ....’” Id. at 687. APCo desired to replace its existing ground wire cable across the easements at issue with a new ground wire cable containing some fiber-optic communication line. Id. at 685. A portion of the fiber-optic communication line was to be used for APCo’s internal communications network; however, APCo intended to share the other portion of the fiber-optic communication line with American Telephone and Telegraph Company (“AT & T”). Id.

The servient owners conceded that APCo had the right to string the new ground wire cable containing the fiber-optic communication line because, in the case of the express easements, such lines were equivalent to telephone lines, which were expressly permitted by the easement, and in the case of the condemnation order, the communication line would be permitted under its language insofar as the line was used for communication in connection with the distribution of power to the public. Id. However, the servient owners objected to APCo’s sharing its easements with AT & T without first obtaining the consent of or compensating the servient owners. Id. at 686. The trial court entered a summary judgment for APCo, stating that “ ‘under the prevailing authorities and the facts of this case, [APCo] can lawfully share the use of its communication lines with another entity such as AT & T, regardless of whether its rights-of-way [were] obtained by deed or by condemnation proceedings.’ ” Id.

In deciding that the trial court had properly determined that APCo was entitled to judgment as a matter of law on the issue whether it had the right to apportion its easements, the Cousins court stated that “[m]any courts have found that utility companies are authorized to share or apportion their easement rights with a third party, without obtaining the permission of, or compensating the owner of, the servient estate.” Cousins, 597 So.2d at 687 (citing in a footnote Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971); Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976), app. den., 40 N.Y.2d 806, 390 N.Y.S.2d 1025, 359 N.E.2d 438 (1976); Faulkner v. Kingston Cablevision, Inc., 53 A.D.2d 948, 386 N.Y.S.2d 358 (1976), app. den., 40 N.Y.2d 805, 388 N.Y.S.2d 1025, 356 N.E.2d 1233 (1976); and Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo.Ct.App.1985)). The Cousins court also commented that the language contained in the deeds and the condemnation order at issue in Cousins was similar to the language contained in easements in other cases in which courts had determined that the language indicated the grantor’s intent to convey the right to apportion. Cousins, 597 So.2d at 687. The court further stated that “[a]n apportionment such as the one contemplated by APCo in this case has been held not to constitute an additional servitude.” Id. (citing Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 212 Cal.Rptr. 31 (1985)).

In deciding that the language of the easements and the condemnation order in question was sufficient to imply an intent to grant the right to apportion the easement to APCo, the Cousins court relied, in part, upon Centel Cable Television Co. of Ohio v. Cook, 58 Ohio St.3d 8, 567 N.E.2d 1010 (1991). According to the “Syllabus by the Court” preceding the opinion in Cook, the servient owner in Cook had granted to the power company and “ ‘its successors and assigns forever, a right of way and easement ... for a line for the transmission and/or distribution of electric energy thereover, for any and all purposes for which electric energy is now, or may hereafter be used ....’” Cook, 58 Ohio St.3d at 8, 567 N.E.2d at 1011. The Cook court explained that

“ ‘[where an easement in gross] is created by conveyance, apportionability depends upon the intention of the parties to the conveyance.’ ... Jolliff v. Hardin Cable Television Co., [26 Ohio St.2d 103,] 107, 55 O.O.2d [203,] 205, 269 N.E.2d [588,] 590 [ (1971) ], citing 5 Restatement of the Law, Property (1944) 3053, Section 493, Comment b.”

Cook, 58 Ohio St.3d at 10, 567 N.E.2d at 1013 (footnotes omitted). Although the Cook court did not hold that the language in the easement was “sufficient to express the grantor’s clear intent to grant [the power company] the right to apportion its easement,” 58 Ohio St.3d at 11, 567 N.E.2d at 1013-14, the court continued its analysis to determine the intent of the grantor, finally determining that the easement was intended to be apportionable. 58 Ohio St.3d at 11, 567 N.E.2d at 1014. The Cook court further determined that the intended use of the easement was similar to the use granted in the easement and that the apportionment of the easement would not place an additional burden on the servient tenement. 58 Ohio St.3d at 11-12, 567 N.E.2d at 1014-15.

The Cook court relied upon an earlier Ohio case, Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 107, 269 N.E.2d 588, 590 (1971), that relied, in part, on the Restatement of Property § 493 (1944), which explains that “[t]he appor-tionability of an easement in gross is determined by the manner or the terms of its creation.” As explained in the Restatement, the intent of the parties to an easement by conveyance controls whether an easement is apportionable. Restatement of Property § 493 cmt. b. (1944). However, “[w]hen an easement in gross is created by prescription, the question of its appor-tionability is decided in light of the reasonable expectation of the parties concerned in its creation as inferred from the nature of the use by which it was created.” Id.

Thus, although Cousins does indeed hold that express easements and easements acquired by condemnation may be apportioned when the language in the document or condemnation order creating the easement indicates an intention to convey or to grant the right to apportion and when the apportionment does not constitute an additional servitude, it cannot stand for the proposition, as urged by Lightwave, that the prescriptive easement in this case is apportionable to Lightwave as a matter of law without further inquiry. In fact, although we agree that APCo’s prescriptive easement may indeed be apportioned, the question that remains— what rights APCo has to apportion — is not decided by Cousins.

The ground wire containing the fiber-optic communication line in Cousins was conceded to be within the scope of both the express easements and the easement by condemnation. Cousins, 597 So.2d at 685. The cable line at issue in the present case, however, has not been conceded to be within the scope of APCo’s prescriptive easement. Lightwave’s cable line is not contained within the replacement of a preexisting cable strung by APCo like the fiber-optic communication line was in Cousins. See id. As mentioned above, an exclusive easement in gross is generally considered to be apportionable to the extent the additional use is “authorized by the manner or terms of [the easement’s] creation.” Restatement of Property § 498 cmt. c. (1944). We must therefore consider the parameters — or the scope — of APCo’s prescriptive easement.

In Alabama, the scope of an easement established by prescription is determined by the extent of the use. Wright & Rice v. Moore, 38 Ala. 593, 598 (1863); Roundtree v. Brantley, 34 Ala. 544, 552 (1859); see also 4 Powell on Real Property § 34.13 (2000) (“the scope of [a prescriptive] easement is necessarily a primary function of the continued use or uses by which it was generated”). In addition, our supreme court has recognized that “ ‘it is elementary law respecting easements that neither the dominant owner nor the servient owner is permitted to materially alter the character of the servitude.’ ” Blalock v. Conzelman, 751 So.2d 2, 6 (Ala.1999) (quoting Gerber v. Appel, 164 S.W.2d 225, 228 (Mo.Ct.App.1942), quashed in part on other grounds, State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45 (1943)). In Blalock, our supreme court reversed a trial court’s judgment permitting an easement holder to prevent the servient owner from cutting trees and other vegetation from the easement in order to further the servient owner’s use of the easement area. Blalock, 751 So.2d at 7. The court explained that the easement holder, by seeking permission to prevent the removal of the vegetation, was attempting to “change the essential character of the easement from that of a right of way, to — in effect — one of shade and air.” Id. at 6. The trial court’s judgment restraining the servient owner from removing the trees and vegetation, said the court, was in error because it wrongfully allowed the easement holder to change the character of the easement.

Under Alabama law as explained above, the scope of a prescriptive easement is determined by the scope of the use that established the prescriptive right, and an easement holder is not entitled to materially alter the scope (or character) of its easement. Lightwave contends that APCo’s right to divide its easement does not arise from the source of APCo’s right, be it by deed, prescription, or otherwise. That is indeed true; as also explained above, the right to apportion typically depends on the type of easement involved and the exclusivity of that easement. As also noted above, however, the Restatement differentiates between easements acquired by conveyance and those acquired by prescription in its discussion of the apportionability of easements. Restatement of Property § 493 cmt. b. (1944). Specifically, the Restatement indicates that exclusive easements in gross are apportionable to the extent the additional use is within the scope of the easement. Id. at cmt. c. Two reported decisions from other states have considered whether a power company can properly apportion its prescriptive easements to other companies, such as telephone or cable companies; these cases reached different results. See Ogg v. Mediacom, L.L.C., 142 S.W.3d 801 (Mo.Ct.App.2004); and Hise v. BARC Elec. Coop., 254 Va. 341, 492 S.E.2d 154 (1997).

In Hise, the Virginia Supreme Court considered, among other things, whether the telephone lines and cable lines of third-party companies that had been strung on the power poles maintained by BARC Electric Cooperative (“BARC”) in its prescriptive easement over the Hises’ property could be moved to the new power poles constructed by BARC over another portion of the Hises’ property acquired in an eminent-domain proceeding. Hise, 254 Va. at 344, 492 S.E.2d at 157. In deciding that the telephone and cable lines could be moved to the new poles, the court discussed the apportionability of prescriptive easements, noting that the Restatement concludes that the reasonable expectation of the parties should be considered. 254 Va. at 346, 492 S.E.2d at 158. The court pointed out that, during the prescriptive period, BARC had permitted the telephone and cable companies to string their lines on its poles and that “[s]uch attachments had been made without objection from the Hises for more than 16 years before this controversy arose”; the court also noted that the Hises had used the cable line for television reception for 8 of those years. Id. Based on those facts, the court concluded that BARC had construed its easement to be both exclusive and apportiona-ble and that the Hises had acquiesced in that construction by failing to object and in using the cable line. Id. Thus, the court concluded that the prescriptive easement was apportionable and that the telephone and cable wires could be properly affixed to the new poles. Id.

In Ogg, however, the cable company fared far differently. The Oggs owned and lived on a family farm over which Platte Clay Electric Cooperative, Inc. (“Platte Clay Electric”), held a long-standing prescriptive easement upon which its poles and power lines were maintained at a height of approximately 18 to 20 feet above the ground. Ogg, 142 S.W.3d at 804-05. In early 1999, Mediacom placed fiber-optic cable at a height of approximately 12 to 14 feet above the ground on the poles under a pole-sharing agreement with Platte Clay Electric; Mediacom did not seek permission from, acquire an easement from, or compensate the Oggs for the use of the property. Id. The Oggs objected and sued Mediacom alleging trespass. Id. at 806. Among the Oggs’ arguments was that even if Platte Clay Electric had granted Media-com a license to use Platte Clay Electric’s easement, the license was “unlawful in that it would create a right beyond the scope of the original easement.” Id. at 808.

The trial court had entered a summary judgment in favor of Mediacom, holding that whether Mediacom could use the license granted by Platte Clay Electric “ ‘turn[ed] entirely on whether the addition of Mediacom’s cable to utility poles already containing an electric wire impose[d] an additional unreasonable burden.’ ” Id. The Missouri Court of Appeals agreed with the Oggs that the trial court erred by focusing exclusively on the burden imposed by Mediacom’s use of the easement, stating that “[w]hile ‘the owner of an easement may, in some circumstances, license or authorize third persons to use its right of way,’ the licensor ‘may not create a right in excess of [that] held by it, nor ... a right which as against the owner of the servient estate is an additional burden or servitude upon the fee simple title.’ ” Id. (quoting Eureka Real Estate & Inv. Co. v. Southern Real Estate & Fin. Co., 355 Mo. 1199, 1206, 200 S.W.2d 328, 332 (1947)) (footnote omitted). The Missouri court explained that “the licensing agreement between Platte Clay Electric and Mediacom could, at most, lawfully confer on Media-com only the rights Platte Clay Electric itself held under its prescriptive easement.” Id. at 808-09 (footnote omitted).

The Missouri court stated that, under Missouri law, the rights of the holder of a prescriptive easement are “defined solely by the character and extent of the use made thereof during the prescriptive period.” Id. at 809 (quoting Stickle v. Link, 511 S.W.2d 848, 854 (Mo.1974)) (footnote omitted). As the court further explained, “ ‘[prescriptive] easements arise by reason of use. It is rational that an easement that exists because of use, which falls short of possession, may not be extended in its character and extent beyond the use which existed when the prescription arose.’ ” Id. (quoting 18 Theodore H. Hellmuth, Missouri Practice: Real Estate Law — Transactions § 420, at 430 (2d ed.1998)). Based on those legal principles, the Missouri court determined that neither Platte Clay Electric nor Mediacom “had the legal right to unilaterally expand, in character or extent, the prior prescriptive use,” which, according to the court was “to operate and maintain electrical power cables on poles at a height of approximately eighteen to twenty feet.” Id. at 810.

The present case is much more akin to Ogg than to Hise. Certainly, Jackson and Matthews allowed APCo to gain a prescriptive easement over the disputed property. However, although Lightwave may have affixed its line to the power pole nearly 3 years before Jackson filed this action, one can hardly conclude that a relatively short 3-year delay amounts to the clear acquiescence apparent in a delay of 16 years like that in Hise.

Lightwave argues, like Mediacom did in Ogg, that it is entitled to share APCo’s existing prescriptive easement. Like Missouri law, Alabama law bases the scope of a prescriptive easement on the extent of the use that established the prescriptive right. Alabama law also prohibits an easement holder from changing the character of the easement. Therefore, although we agree with Lightwave that prescriptive, exclusive easements in gross like APCo’s are apportionable, we, like the court in Ogg, must conclude that only those rights acquired by APCo may be apportioned.

APCo acquired the right to string power lines across the disputed property. APCo did not acquire a right to string any line or cable providing something other than, or related to, electrical power over the easement. The trial court’s summary-judgment order does not specify the parameters of APCo’s prescriptive easement; however, based on the arguments presented to the trial court and its decision to enter a summary judgment in favor of Lightwave, we conclude that the trial court determined, based on Cousins, that APCo’s prescriptive easement could be apportioned as a matter of law with Light-wave. As explained above, Cousins does not stand for the proposition that a prescriptive easement is absolutely apportiona-ble without limitation. Thus, the trial court’s conclusion that Lightwave, by virtue of APCo’s right to apportion its prescriptive easement, acquired the right to string its cable on APCo’s pole is incorrect, and the summary judgment on that issue was improperly entered. Withers v. Mobile Gas Serv. Corp., 567 So.2d 253, 256-57 (Ala.1990) (reversing a summary judgment on, among other things, a trespass claim in favor of the gas company where the gas company used land outside the temporary 20-foot easement to which it was entitled).

At this point we must discuss the defense of laches, asserted both by APCo and Lightwave as an independent ground upon which to affirm the summary judgment in their favor. “To establish the application of the doctrine of laches, [a defendant] ha[s] to show that [the plaintiff] delayed in asserting his right or claim, that his delay was unexcusable, and that his delay caused the [defendant] undue prejudice.” Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989). “For the doctrine of laches to bar a claim it must be said that ‘from delay, any conclusion the court may arrive at must at best be conjectural, and the original transactions have become so obscured by lapse of time, loss of evidence, and death of parties as to render it difficult if not impossible to do justice.’ ” Salter v. Hamiter, 887 So.2d 230, 241 (Ala.2004) (quoting Ussery v. Darrow, 238 Ala. 67, 71, 188 So. 885, 888 (1939)).

Because we have determined that APCo established a prescriptive easement, we need not consider whether the defense of laches is applicable to the trespass claim against it. In its summary-judgment motion, Lightwave incorporated APCo’s summary-judgment argument concerning the 20-plus-year delay between Jackson’s knowledge of the power pole and lines on the disputed property and the institution of this action; Lightwave made no separate argument of its own. Lightwave’s first trespass on the disputed property would have been, at the earliest, in November 2000, only three years before the institution of this action. Therefore, we can safely determine that Lightwave did not establish how the shorter, three-year delay between its stringing its cable in 2000 or 2001 and Jackson’s and Matthews’s institution of their respective actions in 2003 and 2004 prejudiced it in any manner or made it “difficult if not impossible to do justice.” Accordingly, laches is not an alternate ground upon which to affirm the summary judgment in favor of Lightwave on the trespass claim. Likewise, any conspiracy claim based on APCo’s and Lightwave’s conduct in regard to the fiber-optic cable must have arisen approximately three years before the institution of this action, and neither APCo nor Lightwave argued or presented evidence negating any issue of fact concerning whether the three-year delay caused either defendant any prejudice; thus, laches is not an appropriate alternative ground for affirmance of the summary judgment on the conspiracy claims against Lightwave and APCo.

Because APCo’s prescriptive easement is limited in scope to the extent of the use that created it, APCo’s apportionment of the prescriptive easement does not serve to insulate APCo from the conspiracy claim against it. Nor does APCo’s attempt to apportion its prescriptive easement insulate Lightwave from either the trespass claim or the conspiracy claim against Lightwave. Neither APCo nor Lightwave make any other argument on the merits of either the trespass or conspiracy claims. Therefore, both the summary judgment in favor of Lightwave on the trespass and conspiracy claims against it and the summary judgment in favor of APCo on the conspiracy claim against it are reversed, and the cause is remanded for proceedings consistent with this opinion.

APPLICATIONS OVERRULED; OPINION OF JUNE 24, 2005, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

THOMPSON, MURDOCK, and BRYAN, JJ., concur in the result, without writing.

      . The complaint specifically alleged that APCo and the City had trespassed beginning in 1997 and that Lightwave had begun trespassing on February 15, 2000.

      . Jackson’s several letters protesting the use of his property were not sufficient to interrupt APCo's adverse use. Generally, the servient owner must make some threat or take some action that results in at least a brief cessation of the adverse use of the claimed easement in order to interrupt the running of the prescriptive period. See Restatement of Property § 459(2) (1944); 7 Thompson on Real Property § 60.03(b)(6)(viii) (Thomas ed.1994); 4 Powell on Real Property § 34.10[3][b] (2000). Although our supreme court did not expressly use the term "interruption,” its explanation in Sparks v. Byrd, 562 So.2d 211, 216-17 (Ala.1990), that the easement claimant had established continuous possession because the title owners had failed to exercise ownership of the disputed area “either by entry or by legal action” appears to be consistent with the view expressed in the treatises cited above that a property owner must take some action that results in a discontinuance of the adverse use of the property by the claimant. Other states have disparate views of exactly what level of action by the property owner is necessary under certain circumstances. Compare Concerned Citizens of Brunswick County Taxpayers Ass’n v. State ex rel. Rhodes, 329 N.C. 37, 53-54, 404 S.E.2d 677, 687-88 (1991) (holding that the actions taken by the property owner, which included placing railroad timbers and stringing cable across a road used by the public to reach a beach, did not cause an interruption of the adverse use because the public simply detoured around the obstacles), with Garrett v. Mueller, 144 Or.App. 330, 927 P.2d 612 (1996) (holding that the property owner’s act of locking a gate across the disputed area, even though the claimant cut the lock off, was sufficient to interrupt the adverse use). However, failing to do anything other than send letters or make "ineffective protests” would likely not be sufficient in most jurisdictions.

      . Of course, the six-year statute of limitations applicable to trespass to real property, see Ala.Code 1975, § 6-2-34(2), would bar an action based on any trespasses committed more than six years before the institution of the action. ■

      . Although the Cousins court did not define the easements as being exclusive or in gross, they clearly were.

      . The other cases cited in Cousins also involved express easements.

      . While Lightwave argues in its brief that these cases have no bearing on the present case because of their precise holdings relating to the prescriptive easements sought in each case, the principle for which the cases were cited by Jackson and Matthews — that prescriptive easements are limited to the extent of the use that established them — is indeed relevant to a determination of whether APCo's prescriptive easement may be apportioned in the manner APCo and Lightwave intended it to be in the present case.

      . Mediacom also installed underground fiber-optic cable on a portion of the Oggs’ property; the portion of Ogg involving the underground cable is not pertinent to the resolution of this appeal and will not be discussed.