author: STUART, Justice.

text:
    HUN ES TU MALADE? # 16, LLC v. Richard TUCKER et al. David J. Slyman, Jr., and Todd J. Slyman v. Richard Tucker et al.
    1051148 and 1051222.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Rehearing Denied Feb. 16, 2007.

      Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellant Hun Es Tu Malade? #16, LLC.

      Larry O. Daniel, Jr., of Wolfe, Jones, Boswell, Wolfe & Hamner, Huntsville, for appellants David J. Slyman, Jr., and Todd J. Slyman.
    Joseph A. Jimmerson and Kristin D. Horn of Watson, Jimmerson, Martin, McKinney, Graffeo & Helms, P.C., Huntsville, for appellees.
   STUART, Justice.

Richard Tucker, William R. Kruse, and Henry H. Scheuer, all property owners in an area of Madison County referred to as Beasley Spring Acres (hereinafter referred to collectively as “the property owners”), sued Hun Es Tu Malade? #16, LLC, David J. Slyman, Jr., and Todd J. Slyman. Hun Es Tu Malade and the Slymans each own a parcel of land in the same area as the property owners.

In this action, the property owners sought to enjoin Hun Es Tu Malade and the Slymans from developing their two parcels for commercial purposes, more specifically, to enjoin them from constructing a “CVS Pharmacy” discount drugstore on their property (the two parcels of land owned by Hun Es Tu Malade and the Slymans are hereinafter referred to as “the CVS property”). The property owners also sought to reform the deeds to the two parcels making up the CVS property. In support of their action, the property owners asserted that the chains of title to the parcel owned by Hun Es Tu Malade and to the parcel owned by the Slymans contained restrictive covenants prohibiting commercial use of the property and prohibiting further subdivision of that property-

The trial court entered a summary judgment in favor of the property owners, declaring that the two parcels owned by Hun Es Tu Malade and the Slymans were subject to the restrictive covenants found in their respective chains of title. The trial court also declared that Beasley Spring Acres, which had been developed by Clarence Beasley, a common grantor, had been developed pursuant to a common scheme. For these reasons, the trial court permanently enjoined Hun Es Tu Malade from developing its property for commercial purposes and ordered the deeds to the CVS property reformed to grant Hun Es Tu Malade, David J. Slyman, Jr., and Todd J. Slyman an undivided interest in each of the two parcels making up the CVS property, which the trial court held had been improperly subdivided.

In case no. 1051148, Hun Es Tu Malade appeals, and we affirm. In case no. 1051222, the Slymans appeal, and we affirm.

I. Background

A. The Area

The disputed property — the CVS property — is included in 160 acres of land located in Madison County, all 160 acres of which were at one time owned by an individual named Clarence Beasley. The property owners asserted that, beginning in 1955 and continuing for nearly 30 years, Clarence Beasley and his wife, Mildred Beasley, conveyed 90 separate parcels from these 160 acres. The property owners assert that the Beasleys made the vast majority of these conveyances subject to restrictive covenants; these restrictive covenants limited, among other things, the grantee’s use of the parcel and the grantee’s right to subdivide the parcel. The record contains copies of numerous deeds from the Beasleys to the original grantees.

In the vast majority of these deeds, the grantees were restricted from using their property for commercial purposes. Also in the vast majority of these deeds, the grantees were prohibited from further subdividing their property. However, the phrasing of the restriction against further subdivision varied from deed to deed. In some of the deeds, the grantee was prohibited from any further subdivision of the lot. In some other deeds, the grantee was prohibited from subdividing the lot into parcels smaller than a size specified in the deed (the specified size varied between 1.4 and 4.0 acres). Still other deeds contained no restrictions on subdividing the lots.

B. The CVS Property

This dispute specifically centers on two parcels located at the corner of Providence Main Road and U.S. Highway 72 in Madison County. In 1956, both parcels were part of the 160 acres owned by Clarence Beasley. On May 8, 1956, Beasley conveyed one of the parcels to Millenia McLe-more. That conveyance was made subject to the following restrictions:

“[T]his conveyance being subject, however, to the following restrictive covenants which are to run with said lands, to-wit:
“1. That said lot or tract is to be used for private residential purposes only, with no buildings to be erected, altered or permitted to remain on said premises for residence purposes other than detached single family dwelling houses;
“2. That no residence or dwelling house costing less than $10,000.00, exclusive of outbuildings, is to be constructed on said lot;
“1. That said lot is not to be subdivided for any purpose and no lot or tract of lesser size is to be sold or otherwise transferred from the lot herein conveyed.”

On that same day, Beasley conveyed the other parcel to Alfred Powers. That conveyance was made subject to the same restrictions set forth above.

Linda Harris and Barbara Deckelman later became the owners of these two parcels (hereinafter referred to as “the Harris property” and “the Deckelman property”). In December 2003, Harris, Slyman Construction Company, Inc., and Slyman Investment Group, Ltd., entered into a document entitled “Declaration of Property Use and Removing Restrictions” regarding the Harris property. In this document, Harris acknowledged that she owned property fronting U.S. Highway 72, that Barbara Deckelman owned the property adjacent to Harris’s on the west side, and that Slyman Investment Group, Ltd., owned the property adjacent to Harris on the east side. Harris also acknowledged that her property was “subject to restrictions in the chain of title” but, she asserted, the restrictions had ceased to be of any value to the property, that the character of the lands surrounding the property had changed drastically since 1956, and that enforcement of the restrictive covenants would be harmful to Harris. In this document, Harris also acknowledged that she wanted to sell her property to Slyman Construction Company, Inc.

Harris, Deckelman, Slyman Construction Company, and Slyman Investment Group, Ltd., executed a document that they recorded in the Madison County Probate Court. By executing and recording this document, Harris purported to remove the deed restrictions applicable to the Harris property.

On December 12, 2003, Harris sold her property to Slyman Construction Company. Harris made this conveyance subject to all “restrictions, restrictive covenants and easements of record, if any.” In February. 2004, Slyman Construction Company conveyed by quitclaim deed the Harris property to David J. Slyman, Jr., and Todd J. Slyman, in their individual capacities. In September 2004, the Slymans conveyed the Harris property to Schreiner Development, LLC, by indenture. The indenture executed by the Slymans did not reference any restrictions or restrictive covenants. On that same date, Schreiner Development conveyed the northern half of the Harris property back to the Slymans individually and conveyed the southern half of the Harris property to FHT, LLC.

In July 2004, this same sequence of events occurred in connection with the property owned by Barbara Deckelman. Deckelman executed a document entitled “Declaration of Property Use and Removing Restrictions.” In this document, Deckelman acknowledged that she owned certain property fronting U.S. Highway 72, that Schreiner Development, LLC, owned property adjacent to her property on the west side, and that Slyman Construction Company, Inc., owned property (the Harris property) adjacent to Deckelman on the east side. In this document, Schreiner & Schreiner Development, Inc., indicated a desire to purchase the Deckelman property and Deckelman indicated her interest in selling that property to Schreiner & Schreiner Development, Inc.

Additionally, Deckelman acknowledged that her property was subject to certain restrictions but that the restrictions contained in the chain of title to her property had ceased to be of benefit or of value to the property, that the character of the land had changed drastically since the restrictions were placed in the deed, and that enforcement of those restrictions would harm Deckelman. Deckelman, Schreiner Development, LLC, Schreiner & Schreiner Development, Inc., and Slyman Construction Company were the parties to this document, which was recorded in the Madison County Probate Court. By executing and recording this document, Deckelman purported to remove the restrictions applicable to the Deckelman property.

On September 30, 2004, Deckelman conveyed her property to Schreiner Development, LLC. Deckelman’s conveyance of the Deckelman property to Schreiner Development, LLC, was not made subject to the restrictions or covenants of record. On that same date, September 30, 2004, Schreiner Development, LLC, conveyed title to the northern half of its lot (the Deckelman property) to the Slymans, and conveyed the southern half of that lot to FHT, LLC.

By conveying the northern half of the two lots to the Slymans and the southern half of the two lots to FHT, Schreiner Development, LLC, had subdivided the two parcels. Several months later, FHT conveyed its interest in the southern half of the Harris property and the Deckelman property to Hun Es Tu Malade.

Thus, by April 2005, Hun Es Tu Malade held title to the southern half of the Harris property and the Deckelman property and the Slymans held title to the northern half. Shortly after obtaining title to the southern half of the Harris property and the Deckelman property, Hun Es Tu Malade began construction of a CVS Pharmacy on the property.

II. The Underlying Litigation

In June 2005, the property owners sued Hun Es Tu Malade and the Slymans seeking a declaration that the CVS property remained subject to the restrictive covenants found in its chain of title, which prohibited commercial development of the property and any subdivision of the property. The property owners also asserted:

“[T]he [property owners], as residential homeowners within Beasley Spring Acres, have an interest in and directly benefit from the Deed Restrictions. The actions of the Defendants in subdividing the property and constructing a commercial building on the property has caused harm and will continue to cause harm to the [property owners] by adversely affecting the residential character of Beasley Springs Acres, lowering the value of their residential property and diminishing its marketability, should the actions of the Defendants be allowed to continue.”

In addition to the declaratory judgment, the property owners sought a temporary and permanent injunction prohibiting the Slymans and Hun Es Tu Malade from developing the CVS property for commercial purposes. Finally, the property owners requested that the trial court reform the deeds that had effected the subdivision of the CVS property as necessary to bring the deeds and the property in compliance with the restrictions applicable to the property.

On or about June 21, 2005, the trial court entered a temporary restraining order, enjoining Hun Es Tu Malade from using the property in a manner or for a purpose that violated the deed restrictions, conditioned upon the property owners’ posting a $5,000 bond. The property owners posted the bond, and the trial court issued a temporary injunction. However, upon motion of Hun Es Tu Malade, the trial court later increased the amount of the required bond to $500,000, an amount the property owners did not post. For that reason, the trial court vacated the temporary restraining order on June 29, 2005. Hun Es Tu Malade then resumed construction on the CVS property.

Hun Es Tu Malade answered the complaint, asserting, among other things, that no common scheme of development had ever existed and that the restrictive covenants relied on by the property owners did not run with the land. Hun Es Tu Malade also filed a counterclaim, requesting a judgment declaring that it was entitled to develop its property commercially; a judgment declaring that the restrictions applicable. to the CVS property .had been removed by agreement of the neighboring property owners; and a judgment declaring that the restrictive covenants should be removed because of the hardship they would cause or because of the change in the conditions surrounding the property. Hun Es Tu Malade also sought a reformation of its deed to remove any restrictions applicable to its property based on the changed conditions in the area. The Sly-mans. separately filed an answer to the complaint.

All parties moved for a summary judgment and submitted exhibits in support of their motions. At the hearing on the pending summary-judgment motions, all parties stipulated that there were no genuine issues of material fact and that the case could be decided as a matter of law. After hearing arguments, the trial court granted the property owners’ motion and entered a summary judgment for the property owners.

In its summary-judgment order, the trial court declared that the restrictive covenants included by Clarence Beasley in his original deeds and found in the chain of title to the Harris property and the Deek-elman property ran with the land and remained valid and binding. The trial court also declared that Clarence Beasley had developed his property subject to a common scheme of development. For these reasons, the trial court enjoined Hun Es Tu Malade from taking any further actions to commercially develop the CVS property. The trial court also declared that the two parcels making up the CVS property had been improperly subdivided and ordered the deeds to the parcels owned by Hun Es Tu Malade and the Slymans to be reformed to give Hun Es Tu Malade and each of the Slymans an undivided interest in each parcel.

On October 20, 2005, Hun Es Tu Malade filed an emergency motion to stay the injunction, asserting that enforcement of the trial court’s order would cause it significant damage. Hun Es Tu Malade filed

a $50,000 bond to obtain a stay of the injunction.

On or about November 15, 2005, Hun Es Tu Malade and the Slymans filed motions for reconsideration of the summary judgment. Hun Es Tu Malade submitted additional evidence in support of its motion for reconsideration, including correspondence involving settlement negotiations and offers between the parties. The property owners moved to strike much of the additional evidence submitted by Hun Es Tu Malade, and requested that the trial court impose sanctions against Hun Es Tu Ma-lade for introducing evidence of settlement negotiations, in violation of Rule 408, Ala. R. Evid.

On December 30, 2005, Hun Es Tu Ma-lade sought to supplement the evidence again. The property owners responded and submitted their own additional evidence, including affidavits. Hun Es Tu Malade then moved to strike those affidavits, claiming that those affidavits were intended to support the property owners’ summary-judgment motion and that the time for offering such evidence had passed.

On April 13, 2006, the trial court issued an order denying the motions for reconsideration filed by Hun Es Tu Malade and the Slymans. The trial court also struck any reference to the parties’ settlement negotiations and denied all parties’ requests to supplement the record.

On May 11, 2006, Hun Es Tu Malade appealed from the denial of its motion for reconsideration (case no. 1051148). On May 22, 2006, David Slyman and Todd Slyman appealed from that same order (case no. 1051222). In case no. 1051148, Hun Es Tu Malade asserts the following arguments:

“I. The covenant is unenforceable due to lack of a dominant estate, and [the property owners] have no standing to enforce the covenant sued on.
“II. The trial court erred in granting summary judgment based on a legal theory not pled, not supported by admissible evidence, and when the only admissible evidence in the record demonstrated the absence of a neighborhood scheme. “HI. In the alternative, treating as done that which should have been done, [Hun Es Tu Malade] is entitled to summary judgment [on the basis] that Beasley did not develop his property pursuant to a neighborhood scheme.
“IV. The law does not allow judgments to be entered without regard to affirmative defenses.
‘V. The injunction is invalid for failure to specify the neighborhood subjected to the covenants.”

In case no. 1051222, the Slymans adopt all of the issues and arguments asserted by Hun Es Tu Malade in case no. 1051148.

Standard of Review

“We review the trial court’s entry of a summary judgment de novo, and our standard of review is well settled.
“ ‘In reviewing the disposition of a motion for summary judgment, “we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was “entitled to a judgment as a matter of law.” Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmov-ant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’
“Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).”

Hollingsworth v. City of Rainbow City, 826 So.2d 787, 789 (Ala.2001).

Analysis

“I. The covenant is unenforceable due to lack of a dominant estate, and [the property oumers] have no standing to enforce the covenant sued on.”

Hun Es Tu Malade and the Sly-mans acknowledge that the chain of title to the CVS property contains restrictive covenants; however, they assert that because the land to be benefited by those covenants is not identified in the chain of title, the covenants were enforceable only by the grantor — Clarence Beasley. Hun Es Tu Malade and the Slymans also argue that, upon Beasley’s death or upon the conveyance of all the benefited property, the “dominant estate” ceased to exist, and the restrictive covenants applicable to the CVS property became unenforceable.

By this argument, Hun Es Tu Malade and the Slymans appear to misunderstand the nature of “reciprocal negative easements,” which the property owners claim exist in this case. A “reciprocal negative easement” is defined as

“[a]n easement created when a landowner sells part of the land and restricts the buyer’s use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. Such an easement usu[ally] arises when the,landowner creates a common scheme of development for smaller tracts that are carved out of the original tract.”

Black’s Law Dictionary 550 (8th ed.2004).

In this case, the property owners argued that Clarence Beasley developed the 160-acre tract pursuant to a common scheme. They asserted that the original conveyance of the two parcels constituting the CVS property was made subject to restrictive covenants, that those restrictive covenants attached to and ran with the land, that those restrictive covenants benefited all the owners of property in Beasley Spring Acres, and that any and all owners of the other lots in that same development were entitled to enforce the restrictive covenants. Thus, they alleged a reciprocal-negative-easement theory. If the property owners succeed on their theory, then the “dominant estate,” for purposes of enforcing the restrictive covenants, is vested in any owner of property in the development. Collins v. Rodgers, 938 So.2d 379 (Ala.2006). For these reasons, we reject the first argument raised by Hun Es Tu Malade and the Slymans.

“II. The trial court erred in granting summary judgment based on a legal theory not pled, not supported by admissible evidence, and when the only admissible evidence in the record demonstrated the absence of a neighborhood scheme.
“III. In the alternative, treating as done that which should have been done, [Hun Es Tu Malade and the Slymans are] entitled to summary judgment [on the basis] that Beasley did not develop his property pursuant to a neighborhood scheme.”

Hun Es Tu Malade and the Slymans next argue that the property owners did not plead a theory of a common scheme of development and, therefore, that the trial court erred in ruling in favor of the property owners on the basis of that theory. We disagree.

The record filed with this Court indicates that, in answering the complaint, Hun Es Tu Malade asserted that “no common scheme of development exists or has ever existed which includes the property of plaintiffs and the developer.” This pleading was filed on July 27, 2005; the trial court did not enter a summary judgment until October 17, 2005. By rebutting this theory in its answer, it appears that Hun Es Tu Malade understood that the property owners were asserting that Clarence Beasley had developed Beasley Spring Acres pursuant to a common scheme of development. However, in addition to the fact that Hun Es Tu Malade attempted to rebut the theory in its answer, it is apparent from a reading of the entire record that whether there had been a common scheme of development was at issue. Thus, we dispose of the argument that the property owners did not properly plead that the property had been developed pursuant to a common scheme of development.

Next, Hun Es Tu Malade and the Sly-mans argue that, even if the property owners properly pleaded that the property had been developed pursuant to a common scheme, they failed to establish that Clarence Beasley had, in fact, developed his property pursuant to a common scheme. This Court has recognized repeatedly that an owner of property may adopt a common scheme of development for his property by dividing his property into smaller lots or parcels and conveying those parcels with uniform restrictions. See Collins v. Rodgers, 938 So.2d at 393 (discussing numerous cases involving reciprocal negative easements).

For example, in Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928), this Court stated:

“ “Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots, and conveying these with uniform restrictions as to the purposes for which the lands may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by any one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers. The owner of each lot has as appurtenant to his lot a right in the nature of an easement upon the other lots, which he may enforce in equity.
“ Whether such restriction creates a right which inures to the benefit of purchasers is a question of intention, and to create such right it must appear from the terms of the grant, or from the surrounding circumstances, that the grantor intended to create an easement in favor of the purchaser.’ 4 Thompson on Real Property, § 3398.
“... [T]he equitable right to enforce such mutual covenants is rested on the fact that the building scheme forms an inducement to buy, and becomes a part of the consideration. The buyer submits to a burden upon his lot because of the fact that a like burden is imposed on his neighbor’s lot, operating to the benefit of both, and carries a mutual burden resting on the seller and the purchaser.”

218 Ala. at 271, 118 So. at 660 (emphasis omitted). Thus, Alabama has recognized that a grantor may create reciprocal negative easements by dividing and conveying his property in smaller lots or parcels if, in conjunction with the conveyances, he includes common restrictions in the deeds to some or all of those parcels. If the grant- or so intended, those common restrictions inure to the benefit of all purchasers from that grantor.

“The question of law which exists in such cases is whether or not the grantor in the deed containing the restriction agreed expressly or impliedly that the restriction is for the benefit of the owner of other property in the subdivision, whether it had been sold or not. Such a contract may be inferred from the circumstances and terms of the in-stroment, and need not be expressed either verbally or in writing. The test is said to be the intention of the grantor in creating the restriction.”

Virgin v. Garrett, 233 Ala. 34, 37, 169 So. 711, 713 (1936).

Thus, we must determine whether the evidence establishes that Clarence Beasley intended a common scheme of development.

“Alabama has recognized that
“ ‘a common building scheme may be evidenced by: 1) universal written restrictions in all of the deeds of the subdivision; 2) restrictions in a substantial number of such deeds; 3) the filing of a plat showing the restrictions; 4) actual conditions in the applicable subdivision; or 5) acceptance of the actual conditions by the lot owners.’ ”

Collins v. Rodgers, 938 So.2d at 393 (quoting Swanson v. Green, 572 So.2d 1246, 1248 (Ala.1990), citing in turn 7 Thompson on Real Property § 3163, p. 124 (1962 repl. vol.)).

In support of their motion for a summary judgment, the property owners submitted copies of 68 deeds by which Clarence Beasley conveyed different parcels from his 160 acres. In addition to the 68 deeds submitted by the property owners, the record also contains copies of deeds submitted to the trial court by Hun Es Tu Malade. Many of these deeds are duplicates of those submitted by the property owners. However, eight deeds, copies of which were submitted by Hun Es Tu Ma-lade, do not appear to have been submitted by the property owners. Thus, we have a total of 76 deeds in the record. Of the 76 original deeds included in the record, Beasley included the residential-only restriction in 64 of the conveyances of his property. One of the deeds executed by Beasley' before his death restricted the grantee from using the property for residential or commercial use. Only 11 of the 76 deeds included in the record failed to include language restricting the use of the property to residential purposes.

We also note that the record contains copies of the deeds by which Beasley conveyed property to Millenia McLemore and by which Beasley conveyed property to Alfred Powers; those properties are now the CVS property. As noted above, Beasley’s original conveyances to McLe-more and to Powers were made on the same day — May 8, 1956. Also as noted above, Beasley’s original conveyances of these properties were made subject to identical restrictive covenants prohibiting commercial use of the properties and prohibiting further subdivision of the properties. The fact that these two conveyances were made on the same date, that they concerned adjacent property, and that they contained identical restrictive covenants also indicates that Beasley intended to create reciprocal easements as to those two properties. See Virgin v. Garrett, supra (discussing the creation of negative reciprocal easements as to two adjacent lots sold by the same grantor at the same time and made subject to same restrictive covenants).

Also evident from a review of the deeds contained in the record is the fact that Beasley included identical restrictions in the four deeds preceding Beasley’s conveyance to McLemore and in the five deeds preceding Beasley’s conveyance to Powers (including the conveyance to McLemore). As discussed in Collins v. Rodgers, 938 So.2d at 393, a negative reciprocal easement must attach, if at all, while the property is held by a common grantor. The conveyances at issue in this case satisfy this requirement.

Additionally, in support of their motion for a summary judgment, the property owners submitted the affidavits of William Kruse and Henry Scheuer, two of the ap-pellees, and Bob and Joan Langford, all of whom owned property in the vicinity of the CVS property. Kruse, Scheuer, and the Langfords attested that when they purchased their property, they were seeking to live in a residential neighborhood that would be free from commercial development. They also attested that they purchased their property with knowledge of the restrictions applicable to their property and to the surrounding property. Finally, they attested that they relied on those deed restrictions in deciding to purchase their property.

Additionally, the record before us indicates that in at least one of the intermediary deeds included in the chain of title to the Deckelman property the grantor referred to “a subdivision” and indicated that all the parcels or lots in the subdivision were subject to the same restrictive covenants. This deed, dated June 1, 1979, from Charlie Carl Bailes and his wife, Irene M. Bailes, to Arthur E. Deckelman and his wife, Barbara K. Deckelman, provided:

“THE SAID PARTIES OF THE FIRST PART do hereby covenant with and represent with the said Parties of the Second Part, their heirs and assigns, that they are lawfully seized in fee of the lot or parcel of land above described; that the same is free of all liens and encumbrances except ad valorem taxes for the tax year 1979; and except the restrictions and restrictive covenants which pertain to all the lots and blocks in the subdivision above described, as they are recorded in Deed Book 235, Page 201 [the conveyance from Beasley to McLemore], in the Office of the Judge of Probate of Madison County, Alabama.”

(Capitalization in original.) It is noteworthy that Deed Book 235, page 201 refers to the recorded deed from Beasley to Millenia McLemore, dated May 1956.

In Scheuer v. Britt, supra, this Court recognized that a reference in a deed to the fact that other lots in the area were subject to the same covenants at issue in that case was “strong evidence, if not conclusive” that the common grantor developed his property pursuant to a common scheme:

“The restrictive covenant in the deed to complainant and others, that ‘all lots sold for residential purposes only,’ is some evidence, in fact strong evidence, if not conclusive, that such general scheme was inaugurated with reference to the subdivision.”

Scheuer, 218 Ala. at 272, 118 So. at 661. Thus, the reference to the “lots and blocks in the subdivision” included in the Bailes-Deckelman deed discussed above indicates that, at least at one time, one or more of the purchasers believed that Beasley had developed his property pursuant to a common scheme.

Thus, in support of their motion for a summary judgment, the property owners presented evidence indicating that Beasley owned a large tract of land; that he sold that tract by conveying numerous smaller parcels; that he included in the vast majority of the deeds involved in those conveyances the same or substantially similar restrictive covenants against commercial development and subdividing the property; that at least some of the purchasers of those parcels relied on the reciprocal nature of those restrictive covenants in deciding to purchase the property; and that, in addition to the three property owners named as plaintiffs in this action, at least some of the other purchasers of property in Beasley Spring Acres believed that Beasley had developed his property pursuant to a common scheme.

This evidence is sufficient to establish that Beasley intended to and did develop his property pursuant to a common scheme. Therefore, all the property originally sold by Beasley was subject to reciprocal negative easements. Because the CVS property was included in the large tract of property developed pursuant to a common scheme, the restrictive covenants, whether express or implied, are applicable to the CVS property. For these reasons, we affirm the order of the trial court enjoining the development of the CVS property for commercial purposes.

We next address that aspect of the trial court’s order in reforming the deeds to the CVS property to grant Hun Es Tu Malade and the Slymans an undivided interest in the two parcels making up the CVS property. Hun Es Tu Malade and the Slymans argue that the trial court erred in ordering this reformation because the mortgagee — the holder of the legal title to Hun Es Tu Malade’s property— was not named as a party to the action. (Hun Es Tu Malade’s brief at 8 and 23; Hun Es Tu Malade’s reply brief at 22-24.) Hun Es Tu Malade also asserts that it did not join the mortgagee as a party and did not file a motion to dismiss the complaint for the property owners’ failure to add an indispensable party because Hun Es Tu Malade believed the property owners were relying on express covenants rather than implied ones; Hun Es Tu Malade believed the claims were meritless and did not want to incur the additional expenses it would have cost to join the mortgagee; and Hun Es Tu Malade believed that the property owners had become convinced that their claims would not succeed. (Hun Es Tu Malade’s reply brief at 22-24.) We reject these arguments.

In Frander & Frander, Inc. v. Griffen, 457 So.2d 375 (Ala.1984), this Court addressed the claim that a mortgagee was an indispensable party in an action seeking equitable remedies against homeowners who were alleged to have violated the restrictive covenants applicable to their property. The Court noted the differences between an “indispensable party” and a “necessary party” and stated:

“We are unable to see how [the mortgagee] could be called an indispensable party in this instance. Even though not a party to the action, [the mortgagee’s] interests have been protected by the mortgagors, Norma and Theodore Day, since they are seeking the same result as [the mortgagee]. This would not make [the mortgagee] an indispensable party, but rather, at most, a necessary party, and thus an equitable judgment could be entered affecting [the mortgagee]. If, however, [the mortgagee] decides that its interests have not been adequately represented by the Days, it has the option of asserting any claims it may have in an independent action. See McClenney & Son v. Reimer, 435 So.2d 50 (Ala.1983). This being the case, we reject appellants’ contention that the order is void for failure to join an indispensable party, and proceed to a discussion of the main issue for our review on appeal.”

457 So.2d at 377.

In this case, we are presented with a factual situation nearly identical to that presented in Frander & Frander. As in Frander & Frander, the mortgagor in this action, Hun Es Tu Malade, was named as a party. Also as in Frander & Frander, the mortgagor in this case, Hun Es Tu Malade, opposed the equitable relief sought by the property owners, which, in this case was the reformation of the deeds. Thus, we conclude that Hun Es Tu Malade was present in this action to protect the mortgagee’s interests. Moreover, the validity of this conclusion does not depend on whether the property owners were relying on express or implied covenants. For that reason, we conclude that the mortgagee was not an indispensable party to this action and that the judgment entered by the trial court was not void for failure to join an indispensable party.

Further, as noted in Frander & Frander, supra, if the mortgagee decides that its interests have not been adequately represented by Hun Es Tu Malade, it has the option of asserting any claims it may have in a separate action. For these reasons, we reject Hun Es Tu Malade’s contention that the trial court’s order is void because it failed to join an indispensable party.

“IV. The law does not allow judgments to he entered without regard to affirmative defenses. ”

Hun Es Tu Malade and the Slymans next argue that the trial court erred in entering a summary judgment for the property owners without giving Hun Es Tu Malade and the Slymans an opportunity to litigate their affirmative defenses. We find no merit in this argument.

Hun Es Tu Malade and the Slymans were unquestionably aware that the property owners were seeking a summary judgment on their claims. Hun Es Tu Malade and the Slymans were also unquestionably aware that the property owners relied on the express restrictions contained in the chain of title to the CVS property; Hun Es Tu Malade and the Slymans were also aware that the property owners were relying on the theory that Beasley had developed his property pursuant to a common scheme. As admitted in its brief, Hun Es Tu Malade answered the property owners’ complaint by asserting those affirmative defenses relevant to a claim of development by a common scheme. (Hun Es Tu Malade’s brief at 60.) In addition to answering these allegations, Hun Es Tu Malade also asserted that if the covenants were deemed to be applicable to the property, they should not be enforced because the circumstances of the neighborhood had changed and because enforcement of the covenants would work a hardship on it.

Although Hun Es Tu Malade raised the affirmative defenses in its answer, Hun Es Tu Malade failed to present any evidence of these defenses when opposing the property owners’ summary-judgment motion. In opposing the property owners’ summary-judgment motion, Hun Es Tu Ma-lade relied only on the materials it had previously submitted in support of its own summary-judgment motion. Nothing in those materials supported the affirmative defenses of changed circumstances and hardship.

A trial court can rule on only those issues and arguments properly presented to it. A motion for a summary judgment is properly presented when the movant produces evidence tending to show that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Upon such a showing, the burden then shifts to the nonmovant to offer, if possible, evidence tending to establish that genuine issues of material fact do indeed exist. Evidence tending to establish an affirmative defense is the type of evidence that should be submitted in opposition to a motion for a summary judgment, if the nonmovant intends to rely on those defenses to defeat the claims.

Thus, if Hun Es Tu Malade intended to rely on the affirmative defenses of hardship and changed circumstances to defeat the property owners’ motion for a summary judgment, the proper time to submit evidence in support of the affirmative defenses was before the trial court ruled on the pending summary-judgment motion. Hun Es Tu Malade did not do so. In fact, Hun Es Tu Malade did just the opposite at the hearing before the trial court on the property owners’ motion for a summary judgment — Hun Es Tu Malade conceded that no genuine issues of material fact existed and that the trial court could resolve the dispute as a matter of law.

Hun Es Tu Malade and the Slymans argue that, before the trial court, they agreed that no genuine issues of material fact existed only because they were unaware that the trial court was considering a common-scheme theory. However, as stated above, the record indicates that Hun Es Tu Malade and the Slymans were aware of this theory of relief. For these reasons, we find no error in the trial court’s entering a summary judgment in favor of the property owners without allowing Hun Es Tu Malade and the Slymans another opportunity to present evidence in support of its affirmative defenses.

“V. The injunction is invalid for failure to specify the neighborhood subjected to the covenants.

Hun Es Tu Malade and the Sly-mans next argue that the trial court’s order failed to comply with Rule 65(d)(2), Ala. R. Civ. P., which provides:

“(2) Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained....”

Hun Es Tu Malade asserts that, in order to comply with this rule, the trial court must “specify the exact neighborhood covered by the order and the exact covenants burdening all lots in the neighborhood, and make it clear that all tract owners were enjoined from violating the covenants embodied in the scheme.” (Hun Es Tu Ma-lade’s brief at 62-63.)

We disagree with this interpretation of Rule 65(d)(2), Ala. R. Civ. P. The trial court’s order in this case specified that the covenants contained in the chain of title to the CVS property ran with the land and that they were valid, binding, and enforceable covenants and attached to and burdened the CVS property. The trial court also found that Hun Es Tu Malade had improperly constructed a commercial building on the CVS property, in violation of the deed restrictions and it enjoined Hun Es Tu Malade from using the building or the property for commercial purposes.

We find nothing vague about the trial court’s injunction. The CVS property was the property at issue in this case. The trial court’s injunction clearly addresses that property. The restrictions against commercial use and against further subdivision were the restrictions at issue. Those are the restrictions addressed in the trial court’s order. The trial court’s injunction addresses Hun Es Tu Malade, a party to this action, and prohibits Hun Es Tu Malade from using the CVS property in any way that violates the covenants. For these reasons, this order is sufficiently specific and does not violate Rule 65(d)(2), Ala. R. Civ. P.

For the foregoing reasons, we affirm the summary judgment in favor of the property owners.

1051148 — AFFIRMED.

1051222 — AFFIRMED.

NABERS, C.J., and SEE, HARWOOD, and BOLIN, JJ., concur.

      .The property owners purported to assert claims on behalf of all other property owners in Beasley Springs Acres. However, the action was not certified for class-action treatment. The three named individuals are the only appellees.

      . The record indicates that Beasley inherited this property in 1904.

      . Upon the death of Mildred Beasley, Clarence Beasley continued to convey parcels of land from the original acreage. Additionally, upon Clarence's death, the executor of Clarence’s estate or the trustee of a trust established in Clarence’s will conveyed some of the remaining property. Thus, in some of the deeds Clarence Beasley and Mildred Beasley, a married couple, are named as the grantors; in some deeds, Clarence Beasley, a widower, is named as the grantor; and in some, the executor or trustee of Clarence's estate is named as the grantor.

      . The parties state that Clarence Beasley created 90 parcels out of the original 160-acre tract. The property owners also state that they submitted as evidence copies of the deeds involved in each conveyance made by Beasley. However, the record before this Court contains copies of only 76 deeds. Thus, it is unclear whether the parties are incorrect as to the number of existing parcels, whether some of the deeds are missing from the record, or whether some of the deeds contained in the record represent more than 1 of the 90 parcels purportedly conveyed by Beasley. Because this is a court of appellate review, we must work from the record before us; however, this discrepancy does not impact our analysis of this case.

      . This deed did not specifically mention restrictions or restrictive covenants; however, by virtue of the quitclaim deed, Slyman Construction Company warranted that it was conveying only the title it actually held.

      . The sole member of FHT, LLC, is Foy Tatum. Foy Tatum is also the "manager" of Hun Es Tu Malade? # 16, LLC.

      . When this document was executed, according to the deeds, Slyman Construction Company had already conveyed the Harris property to the Slymans in their individual capacity. However, the “Declaration of Property Use and Removing Restrictions” document executed by Deckelman did not acknowledge that fact.

      .Deckelman actually conveyed the property to Schreiner Development, LLC. The record does not explain the distinction between the two entities.

      . When certain of the property owners in Beasley Spring Acres learned of the “Declarations of Property Use and Removing Restrictions,” they retained legal counsel. On behalf of the property owners, counsel sent letters to all entities involved in the "Declarations of Property Use and Removing Restrictions,” advising them of the residential restrictions that applied to the lots in Beasley Spring Acres. Counsel also attached a copy of an order entered in earlier litigation involving Beasley Spring Acres.
      In this earlier litigation, certain owners of property located in Beasley Spring Acres sought to enjoin the erection of a billboard sign on a lot within Beasley Spring Acres. The parties to that litigation stipulated that the trial court could enter a consent judgment, and the trial court issued an order accepting that stipulation. In that stipulation, the parties agreed that the restrictions applicable to the defendant's property were binding and valid, that they ran with the land, and that the defendant would remove any billboard or framing from the parcel in issue. The property owners also recognized and acknowledged that the defendant had already placed three or four billboards on other property included within the Beasley Spring Acres development and that those billboards would not be impacted or addressed by this consent judgment.

      . The property owners asserted that they could not raise the funds necessary to post the required bond, as increased by the trial court.

      . In support of their motion for a summary judgment, the property owners filed a lengthy memorandum of law and exhibits. As exhibits, the property owners attached copies of the deeds by which Clarence Beasley and Mildred Beasley conveyed the parcels located in Beasley Spring Acres; photographs of numerous homes located in Beasley Spring Acres; copies of the deeds from Clarence Beasley and Mildred Beasley relating to the CVS property now owned by Hun Es Tu Malade and the Slymans; copies of the deeds representing the conveyances specifically applicable to the Deckelman properly; copies of the deeds representing the conveyances specifically applicable to the Harris property; copies of letters sent in 2002 by attorneys for certain property owners in Beasley Spring Acres to other persons in Beasley Spring Acres notifying them of the restrictive covenants and alleged violations thereof; copies of the "Declarations of Property Use and Removing Restrictions” filed by Harris and Deckelman; copies of a court order from prior litigation relating to restrictive covenants applicable to Beasley Spring Acres; copies of July 1, 2004, letters sent to certain property owners regarding the restrictive covenants of Beasley Spring Acres and alleged violations thereof; copies of November 10, 2004, letters sent to certain property owners regarding the restrictive covenants of Beasley Spring Acres and alleged violations thereof; copies of deeds specifically involving Hun Es Tu Malade; copies of letters dated June 2005 and addressed to the Sly-mans and to Schreiner Development, requesting assurances that the construction occurring on the CVS property was for residential purposes; and affidavits of the property owners.
      The materials filed by Hun Es Tu Malade in support of its motion for a summary judgment consisted of a brief; the affidavit of Theresa Bayer, a title specialist who examined the deeds to property located in Beasley Spring Acres and who summarized her findings as to those deeds; copies of the deeds examined by Bayer; and an affidavit of Joel Brown, who attested that the attorney for the property owners had stipulated in open court that Beasley Spring Acres consisted of only three lots and that none of the property owners owned those three lots.
      In support of their motion for a summary judgment, the Slymans submitted copies of the deeds applicable to the CVS property.

      . The trial court ordered the clerk of the circuit court to place under seal those pleadings and documents submitted by Hun Es Tu Malade that contained information regarding the parties' attempts at settlement. The trial court also struck from the record other filings that contained objectionable or inadmissible evidence.

      . Neither Hun Es Tu Malade nor the Sly-mans elected to order a transcript of the hearing held before the trial court on the summary-judgment motions.

      . In their brief to this Court in case no. 1051222, the Slymans did not state any issues for review nor did they present any arguments for consideration by this Court. However, they adopted every issue and argument presented by Hun Es Tu Malade. Thus, although our discussion and analysis is directed to Hun Es Tu Malade, the discussion and analysis applies equally to the Slymans.

      . It is also significant that 6 of the 11 deeds that contained no restrictions against commercial use were executed by the executor of Beasley's estate or the trustee of a trust established by his will after his death. Of the deeds conveyed by Beasley himself before his death, only five failed to restrict the grantee's use to a residential purpose.

      . Hun Es Tu Malade does not dispute that these original conveyances from Beasley to McLemore and from Beasley to Powers were made subject to these restrictive covenants and that the McLemore and Powers properties ultimately were conveyed to Linda Harris and Barbara Deckelman. Hun Es Tu Malade also does not dispute that the residential-only covenant and the no-further-subdivision covenant are found in the chain of title to the CVS properly. (Hun Es Tu Malade’s brief at 9.)

      . None of these property owners purchased their property directly from Clarence Beasley. The Langfords purchased their property in 1989; Scheuer purchased his property in 1991; and Kruse purchased his property in 1995.

      . See note 11, supra, for a listing of the materials filed by Hun Es Tu Malade in support of its motion for a summary judgment.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    1631 SECOND AVENUE NORTH, L.L.C. v. Sam RAINE III and Antoinette Raine.
    1051463.
    Supreme Court of Alabama.
    Feb. 9, 2007.

      Alton B. Parker, Jr., Leslie Hand, and Gary W. Lee of Spain & Gillon, LLC, Birmingham, for appellant.
    Jesse P. Evans III and Michael B. Odom of Haskell Slaughter Young & Re-diker, LLC, Birmingham, for appellees.
    Brief filed by Terry McElheny, J. Fred Wood, Jr., and Donna Knotts Byrd of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., for intervenor LeerCorp.
   SEE, Justice.

A purchaser sought damages and specific performance pro tanto of his contract with the sellers, who owned only part of the property they had contracted to sell. The trial court, after considering the contractual relationship between purchaser and the seller and the potential resulting cotenancy among strangers, declined to order specific performance pro tanto. We affirm the judgment of the trial court.

Facts and Procedural History

This case concerns the sale of a hotel building in downtown Birmingham. Sam Raine, Jr., Norman Ceravalo, and Sammy Ceravalo purchased the Thomas Jefferson Hotel, which was later renamed the Cabana Hotel. These three individuals sold the hotel twice and then repurchased it after the purchasers went bankrupt. When Sam Raine, Jr., died, most of his interest in the hotel passed to his wife, Antoinette Raine.

The hotel occupies lots 1, 2, and 3, block 96, Survey of Birmingham prepared by Elyton Land Survey Company, and an annex to the hotel occupies lots 4 and 5. The adjacent parking lot occupies lots 8, 9, and 10. Today, Antoinette Raine owns two-thirds of the hotel and one-third of the annex. Antoinette Raine’s son and code-fendant, Sam Raine III, owns one-half of the eastern half of lot 8 and one-half of the eastern 25 feet of lot 10. Sammy Ceravalo and Norman Ceravalo own the remaining one-third of the hotel and the remaining two-thirds of the annex. Judy Lynn Blotcky owns one-half of the eastern half of lot 8 and one-half of the eastern 25 feet of lot 10. The Lewis Family Trust owns the western half of lot 8, all of lot 9, and the western 75 feet of lot 10.

Jeff Notrica, doing business as 1631 Second Avenue North, L.L.C. (“Second Avenue”), decided to purchase the Cabana Hotel building. He authorized his real-estate agent, Bill Arant, to assist him in preparing an offer. Arant, knowing that Sam Raine, Jr., had owned part of the hotel before his death in 2003, telephoned Steve Salter, Sam’s son-in-law, to inquire about the property. Salter referred him to Bill Beavert, who showed the property to prospective buyers and acted as an intermediary between purchasers and the Raine family.

Beavert showed Arant the property, and Beavert told Arant that “young Sam and his mother are the ones that need to sign [the contract].” Beavert notified Sam Raine III that someone was interested in purchasing the property. Raine told Bea-vert to contact Antoinette Raine and that she and Sam III would be receptive to an offer. Notrica executed a contract to purchase the property for $750,000, agreeing to deposit $50,000 as earnest money, and Beavert delivered the offer to Antoinette Raine. The contract identified the “seller” as “Cabana Hotel Group,” a nonexistent entity whose name was inserted into the contract by Arant, who intended to determine the actual owners of the Cabana Hotel at a later time. Sam III and Antoinette Raine made some changes to the contract, initialed it, and sent it back to Notrica for his signature. It is not apparent from the record how many times the contract passed between the purchaser and the sellers, but at some point the purchase price increased to $1.1 million. Also, the Raines added Exhibit B to the contract, which contains a warranty providing that “Seller is the fee owner of the Property or is authorized to execute this document for the fee owner.” Antoinette Raine’s initials appear on every page of the contract, and Sam Raine III signed it. The last date on the contract is June 24, 2004, when Notrica last signed the contract. The contract provided that “time is of the essence” and that “[t]he sale shall be closed and a deed delivered on or before September 15, 2004, except Seller shall have a reasonable length of time within which to perfect title or cure defects in the title of the property.”

Early in the negotiations, it was apparent that delinquent state taxes in the amount of $237,000 had to be paid in order to clear the title to the property. The taxes were not paid by September 15, 2004, and that date passed without a closing. Second Avenue states that it agreed to give the Raines time to settle the tax issue with the State. Second Avenue also states that Arant and Beavert spoke frequently about resolving the tax issue, both on the telephone and at Arant’s office.

On March 18, 2005, Arant wrote Beavert a letter confirming the validity of the June 2004 contract and confirming that “the Seller is working toward clearing up the title to the property.” The letter indicated that Notrica was ready to begin environmental testing on the property and would do so when he knew that the title could be, and would be, cleared. The letter included a space for Beavert to sign to indicate his agreement with the letter. Although Beavert never signed the letter, Arant testified that Beavert told him, in response to the letter, that “he was very close to having that done.” On March 21, 2005, after Arant heard rumors that Watts Realty Company was working on a deal involving the Cabana Hotel, Arant met with Beavert, Antoinette Raine, and Sam Raine III at Antoinette Raine’s house to discuss the contract. Antoinette Raine testified that, at that meeting, she informed Arant that the other owners, Norman Ceravalo and Sammy Ceravalo, had to sign any contract by which the property would be sold. In April 2005, the Raines and the Ceravalos entered into a new contract to sell the Cabana Hotel to LeerCorp for $1.3 million; LeerCorp agreed to deposit $100,000 in earnest money.

In May 2005, Arant wrote Antoinette Raine to inform her that Second Avenue was ready to proceed with closing and that Beavert had indicated that the tax issue was close to being settled. In the letter, Arant proposed a closing date of July 15, 2005, on the contract with Second Avenue. Antoinette Raine contacted Beavert and her attorney, both of whom advised her not to attend the closing with Second Avenue. Also, an agent at Watts Realty told Antoinette Raine that the contract with Second Avenue was invalid because the Ceravalos did not sign it. Neither the closing with Second Avenue nor the closing with LeerCorp occurred.

Second Avenue sued Sam Raine III and Antoinette Raine for specific performance pro tanto, seeking to enforce the contract as to the property interests the Raines actually owned for a price prorated to reflect their ownership interest. Leer-Corp moved to intervene, and the trial court granted its motion. Second Avenue and LeerCorp both moved for a summary judgment; the Raines moved to join Leer-Corp’s motion for a summary judgment. The trial court entered a summary judgment in favor of the Raines and LeerCorp and denied Second Avenue’s motion. LeerCorp moved the trial court to certify its order as a final judgment, which the trial court did. Second Avenue appeals.

Analysis

In its summary-judgment order, the trial court found that the contract between the Raines and Second Avenue was invalid for several reasons: a lack of certainty as to the parties, a lack of mutuality, and estoppel. The court also held that “even if the contract were valid, a remedy of specific performance pro tanto would not be equitable in this case.” The trial court certified its order as final and appealable “as to [Second Avenue’s] claim for specific performance pro tanto.” Because the question of the validity of the contract is not before us, we do not express an opinion regarding the court’s holdings on estoppel, mutuality, or certainty grounds.

Specific performance pro tanto “has been a recognized remedy in equity from our earliest history.” Saliba v. Brackin, 260 Ala. 103, 108, 69 So.2d 267, 271 (1953). The doctrine provides:

“ ‘[A] vendor whose estate is less than or different from that which he agreed to sell, or who cannot give the exact subject-matter embraced in his contract, will not be allowed to set up his inability as a defense against the demand of a purchaser who is willing to take what he can get with a compensation. The vend-ee may, if he so elect, enforce a specific performance to the extent of the vendor’s ability to comply with the terms of the agreement....’”

Saliba, 260 Ala. at 108, 69 So.2d at 270 (quoting Pomeroy’s Specific Performance of Contracts § 438, p. 903 (3d ed.)). “The decision to grant specific performance rests largely in the discretion of the trial judge.” Stringfellow Materials, Inc. v. Lee, 438 So.2d 1387, 1390 (Ala.1983). Moreover, the trial court “will be overturned, on appeal, only if shown to be palpably erroneous.” Stringfellow Materials, 438 So.2d.at 1390.

We have held that “ ‘ “[n]either party to a contract is entitled to specific performance as a matter of right,” ’ ” but “ ‘whether relief shall be granted depends upon an equitable consideration of the particular circumstances of each case.’ ” Dendy v. Anchor Constr. Co., 294 Ala. 120, 122-23, 313 So.2d 164, 165 (1975) (quoting Lee v. Crane, 270 Ala. 651, 653, 120 So.2d 702, 703 (1960); and Carlisle v. Carlisle, 77 Ala. 339, 341 (1884)). In the present case, the trial court, after considering the circumstances of this case, held that “the court would be causing more problems for these parties than it would solve if it ordered Sam Raine III and Antoinette A. Raine to convey their interest in the property to [Second Avenue. Second Avenue] would then be a joint owner of the property with several people who are perfect strangers to it.” Second Avenue points out that this Court dealt with similar circumstances in Pearce v. Third Avenue Improvement Co., 221 Ala. 209, 128 So. 396 (1930).

In Pearce, the Court granted specific performance pro tanto when three sellers executed a contract to sell property and the contract was void as to one of the sellers, Pearce. Pearce was a married woman, and her husband had not signed the contract; thus, the tenants argued that, “as to her, the contract was void for want of the joinder of her husband.” 221 Ala. at 212, 128 So. at 398. The Court enforced the contract as to the remaining two sellers, even though doing so meant that the purchaser would become a coten-ant with Pearce. This Court explained:

“The main objection seems to be that such partial performance will bring about a cotenancy between Mrs. Pearce and strangers, rather than those of her own choice. It is said this should not be done because the other owners never intended such result. In no case of part performance do the parties accomplish what they intend. The entire doctrine rests upon the fact that the vendors have intended and undertaken more than they can accomplish. Equity steps in to say if you cannot live up to the full terms of the contract, you will be held to performance so far as you can.”

221 Ala. at 214, 128 So. at 399-400. In Pearce, the Court reviewed a trial court’s order granting specific performance pro tanto. The Court afforded the trial court deference and found that the trial court committed “no error” in ordering specific performance. In this case, however, this Court reviews for palpable error a trial court’s decision not to grant specific performance. Although we did not consider a newly created cotenancy among strangers enough to reverse a trial court’s order granting specific performance pro tanto in Pearce, we did not hold, and have not held, that a trial court cannot consider such a circumstance in making its initial decision. Therefore, the fact that the trial court considered the potential cotenancy among the Ceravalos and Second Avenue does not constitute palpable error in this case.

Moreover, the trial court’s order reflects that the trial court considered other aspects of the contractual relationship between Second Avenue and the Raines in refusing to order specific performance. Specifically, the trial court discussed the fact that the contract named the nonexistent entity “Cabana Hotel Group,” rather than the Raines, as the “seller.” The court mentioned that no closing had ever occurred, despite the language in the contract indicating that “time [was] of the essence.” Also, the court discussed Antoinette Raine’s statement to Second Avenue and to Arant that no binding sale of the property could be made until the Ceravalos agreed to sign a sales contract.

Given the circumstances of this case, we find no palpable error by the trial court in declining to order specific performance pro tanto of the contract. The court properly exercised its discretion in denying the remedy of specific performance against the Raines.

Conclusion

Because we find no palpable error by the trial court as to its ruling on specific performance pro tanto, we affirm the summary judgment.

AFFIRMED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . Sam Raine Ill’s ownership interest in lot 8 is unclear in the record. The trial court's summary-judgment order states that Sam Raine III owns "a one-half interest in Lot 8.” However, it also states that Judy Lynn Blotcky owns a "one-half of the east half of Lot 8” and that the Lewis Family Trust owns "the west one-half of Lot 8.” These property interests total more than the whole of lot 8. The Raines, however, state that Sam Raine III owns "one-half of the East one-half of Lot 8.”

      . The Raines claim that Beavert at all times represented to Arant that the Ceravalos would have to sign any contract for purchase, but they offer as proof an unsigned affidavit by Beavert. Sam Raine III also testified that he “kept telling Mr. Arant" to present the contract to the Ceravalos, but he does not remember when he told Arant that he needed to contact the Ceravalos about the purchase of the hotel.
      Arant testified that he obtained a tax assessment of the property on the Internet, which showed Sammy Ceravalo’s name. Arant testified that he believed Ceravalo to be related to the Raines because Beavert referred to everyone involved, including himself, as family. Arant also received a title binder from Beavert, dated approximately 1990. The title binder showed Sammy Ceravalo's name as an owner of the hotel, along with Antoinette Raine.

      . We note that, although LeerCorp moved the trial court to certify as final its determination as to the "enforceability of the contract,” the trial court certified as final its order "as to plaintiff’s claim for specific performance pro tanto”; the issue of damages remained pending in the trial court.


author: WOODALL, Justice.

text:
    David TYLER and Wal-Mart Stores, Inc. v. Cuddles WILLIAMS.
    1051435.
    Supreme Court of Alabama.
    Feb. 9, 2007.

      Carl S. Burkhalter and Joshua D. Jones of Maynard, Cooper <& Gale, P.C., Birmingham, for appellants.
    Jason M. Jackson of Radney & Radney, LLC, Alexander City, for appellee.
   WOODALL, Justice.

Wal-Mart Stores, Inc., and David Tyler, the manager of. the Wal-Mart discount store in Roanoke, appeal from the trial court’s order denying their motion to compel arbitration. We reverse and remand.

The relevant facts are, as' Williams agrees, accurately stated in Wal-Mart’s brief, as follows:

“On December 30, 2004, [Cuddles Williams] entered into a contract with MoneyGram Payment Systems, Inc. (hereinafter ‘MoneyGram’). The contract was entitled a MoneyGram Ex-pressPayment (hereinafter ‘ExpressPayment’ or ‘contract’). Under the terms of the contract, Wal-Mart, acting as agent for MoneyGram, initiated the transfer of $138.68 to Chase Manhattan Mortgage Corporation. Plaintiff provided Wal-Mart with the $138.68 and paid an $8.50 fee..
“The ExpressPayment is a two-page document. A customer completes the front of page one, labeled customer copy, and this information is imprinted onto the front of page two, labeled agent copy. Just below the signature line is notice that ‘THIS TRANSACTION IS SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE. THOSE TERMS AND CONDITIONS LIMIT THE SENDER’S LEGAL RIGHTS AND SHOULD BE REVIEWED PRIOR TO [SIGNING].’ The terms and conditions are on the reverse side of page one, the customer copy. After completion of the transaction information, the two pages are separated. The customer keeps page one[,] which includes the terms and conditions on the reverse side.
“[Williams] completed the front of page one, signed her name on the signature just above the terms and condition notice, and dated her signature December 30, 2004. She then took the customer copy[,] which, as noted above, contains the terms and conditions on the reverse side of that page.
“The terms and conditions on the back of the customer copy signed by [Williams] contains a provision that . states, in part:
“ ‘ARBITRATION. ANY CONTROVERSY OR CLAIMS ARISING OUT OF OR RELATING TO THE TRANSFER, THIS CONTRACT OR BREACH OF THIS CONTRACT, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR®) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.’ ”

Wal-Mart’s brief, at 4-6 (boldface type and capitalization original; citations to clerk’s record and reporter’s transcript omitted).

On November 23, 2005, Williams sued Wal-Mart and Tyler, the manager of the Wal-Mart discount store where the transaction took place (hereinafter referred to collectively as “Wal-Mart”). She alleged that Wal-Mart had failed to transfer the $138.68 to Chase Manhattan Mortgage Corporation, the mortgagee of her house, and that, as the result of Wal-Mart’s failure, she lost her house through foreclosure. Williams alleged breach of contract; negligence and/or wantonness; negligent and/or wanton hiring, retention, and supervision; and invasion of privacy.

Wal-Mart moved to compel arbitration of Williams’s claims. Before a hearing on the motion, copies of both the agent’s copy and the customer’s copy of the “MoneyGram Express Payment” document were submitted to the trial court. On June 28, 2006, the trial court denied Wal-Mart’s motion to compel arbitration, and Wal-Mart appealed.

“ ‘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 that contract evidences a transaction affecting interstate commerce. Id. “After 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).’
“Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (emphasis omitted).”

Edward D. Jones & Co., LP v. Ventura, 907 So.2d 1035, 1040 (Ala.2005). The dis-positive issue presented on appeal is whether the arbitration clause relied upon by Wal-Mart is part of the agreement between Wal-Mart Stores, Inc., and Williams.

“Arbitration is a contract matter, and one cannot be compelled to submit to arbitration any matter that one has not agreed to so submit.” Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133 (Ala.2003). “ ‘[Ordinarily when a competent adult, having the ability to read and understand an instrument, signs a contract, he will be held to be on notice of all the provisions contained in that contract and will be bound thereby.’ ” Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999)(quoting Power Equip. Co. v. First Alabama Bank, 585 So.2d 1291, 1296 (Ala.1991)). “ ‘[T]he intent of the contracting parties is discerned from the whole of the contract.’ ” Jim Burke Auto., Inc. v. McGrue, 826 So.2d 122, 132 (Ala.2002)(quoting Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000)).

Williams admits that she signed the customer copy of the “MoneyGram Express Payment” document. Directly beneath her signature was unambiguous language referring to “terms and conditions on the reverse side” and advising the customer that “those terms and conditions limit the sender’s legal rights and should be reviewed prior to signing.” One of the additional terms or conditions to which Williams’s attention was directed was the arbitration clause relied upon by Wal-Mart. The customer copy taken from the store by Williams, as she admits, contained the arbitration clause on its “reverse side.” Under these circumstances, the arbitration clause was a part of the agreement between Wal-Mart Stores, Inc., and Williams, and Williams is bound by that clause.

Williams argues that the arbitration clause “was inconspicuous and hidden,” and that, therefore, she “could not have knowingly, willingly and voluntarily agreed to its terms.” Williams’s brief, at 10. Williams relies upon Thermo-Sav, Inc. v. Bozeman, 782 So.2d 241, 243 (Ala.2000), in which this Court held that “the ‘Governing Lav^ provision, which contained the arbitration clause, was not a part of the contract because there was no indication on the front of the contract that additional provisions appeared on the back of the contract and that those additional provisions were a part of the contract.” In Thermo-Sav, we noted that “[t]he front of the contract contain[ed] no language indicating that additional terms appear on the reverse side of the contract or directing the contracting party’s attention to those additional terms.” 782 So.2d at 243.

Obviously, Thermo-Sav is distinguishable from this case, because the terms and conditions that appear on the reverse side of Williams’s “MoneyGram Express Payment” document are referred to on the front of her copy, and her attention was directed to those terms. Under circumstances such as these, this Court has enforced an arbitration provision appearing on the reverse side of the relevant contract. See Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 158-59 (Ala.2003); Ex parte Stripling, 694 So.2d 1281, 1283 (Ala.1997).

For the foregoing reasons, the trial court’s order denying Wal-Mart’s motion to compel arbitration is reversed, and this case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.


text:
    Stephanie SHERRER and James Sherrer v. Robert B. EMBRY and Robert B. Embry, D.D.S., P.C.
    1051734.
    Supreme Court of Alabama.
    Feb. 9, 2007.

      J. Wilson Mitchell of Mitchell, Bernauer, Winborn, Austin & Miles, Florence, for appellants.
    Scott M. Salter of Starnes & Atchison, LLP, Birmingham, for appellees.
   SEE, Justice.

Facts and Procedural History

Robert B. Embry is a licensed dentist who practices general dentistry through his professional corporation, Robert B. Embry, D.D.S., P.C. Dr. Embry provided dental care to Stephanie Sherrer on September 2, 2003, and discovered that two of her teeth were abscessed. Dr. Embry placed Sherrer on a seven-day course of penicillin and then extracted the two teeth on September 8, 2003. That day, Dr. Em-bry prescribed pain medication for Sherrer, but he did not prescribe any further antibiotics.

The next day, Sherrer telephoned Dr. Embry’s office because she was experiencing severe pain and swelling in her jaw. Dr. Embry prescribed a stronger pain medication for Sherrer, but her condition worsened. On September 10, 2003, Sherrer returned to Dr. Embry’s office, and, although he was not present, he arranged for Sherrer to be seen by Dr. Harlan Knight, another dentist. Dr. Knight saw Sherrer and referred her to Dr. Christopher Nester, an oral surgeon. The site of the extraction had become infected, and Dr. Nester operated on Sherrer’s jaw to relieve the swelling and to treat the infection.

Sherrer and her husband, James Sherrer, sued Dr. Embry and his professional corporation (hereinafter sometimes referred to collectively as “Dr. Embry”), alleging dental malpractice, and alleging specifically that in treating Sherrer, Dr. Embry had breached the applicable standard of care. Dr. Embry moved for a summary judgment. The Sherrers filed an opposition to Dr. Embry’s summary-judgment motion, attaching the affidavit and curriculum vitae of their expert witness, Dr. James R. Stilwell. Dr. Stilwell is a medical doctor licensed in Alabama; he obtained his medical degree in 1956 and practiced plastic and reconstructive surgery before retiring in 2000. According to his affidavit, Dr. Stilwell maintained a “limited medical practice in 2001 through 2003.”

Dr. Embry moved to strike Dr. Stilwell’s expert testimony as to the standard of care on the ground that Dr. Stilwell “does not meet the requirements of a 'similarly situated health care provider’ as set forth in § 6 — 5—548(b)[, Ala.Code 1975,]” and “is not qualified to offer expert testimony against Dr. Robert B. Embry.” The trial court granted Dr. Embry’s motion to strike Dr. Stilwell’s affidavit testimony. The trial court then noted that “[bjecause [the Sher-rers’] proffered standard of care expert testimony has been struck, [Dr. Embry’s] prima facie showing that [he] met the applicable standard of care remains unchallenged.” The trial court granted Dr. Em-bry’s motion for a summary judgment. The Sherrers appeal the summary judgment in favor of Dr. Embry and specifically challenge the trial court’s decision to grant Dr. Embry’s motion to strike Dr. Stilwell’s testimony.

Issue

The issue presented to this Court is whether the trial court erred in granting Dr. Embry’s motion to strike Dr. Stilwell’s affidavit testimony and thus whether the trial court erred in entering a summary judgment for Dr. Embry on the basis that the Sherrers could offer no expert testimony as to the applicable standard of care.

Standard of Review

“Generally, the question of whether a witness is qualified to give expert testimony is a question left to the discretion of the trial court and the court’s ruling will not be disturbed unless it is found that the trial court abused its discretion.” Craig v. Borcicky, 557 So.2d 1253, 1255 (Ala.1990) (citing Bell v. Hart, 516 So.2d 562 (Ala.1987)).

“The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant.”

Brigman v. Dejute, 593 So.2d 51, 53 (Ala. 1991).

Analysis

Section 6-5-548, Ala.Code 1975, a part of the Alabama Medical Liability Act, provides that in a medical-malpractice action against a health-care provider,

“(a) ... the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case.
“(b) ... [A] ‘similarly situated health care provider’ is one who meets all of the following qualifications:
“(1) Is licensed by the appropriate regulatory board or agency of this or some other state.
“(2) Is trained and experienced in the same discipline or school of practice.
“(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.
“(e) ... A health care provider may testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages, or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.”

Dr. Stilwell is qualified to testify as an, expert witness in this case only if he is a “similarly situated health care provider” to Dr. Embry. § 6-5-548(e), Ala.Code 1975. To be qualified as a “similarly situated health care provider,” Dr. Stilwell must meet each of the three requisites of § 6-5-548(b), Ala.Code 1975 (“a ‘similarly situated health care provider’ is one who meets all of the following qualifications”).

First, Dr. Stilwell must be “licensed by the appropriate regulatory board or agency of this or some other state.” § 6-5-548(b)(1), Ala.Code 1975. Because Dr. Embry is licensed as a general dentist and was sued in that capacity, “the appropriate regulatory board or agency” by which an expert witness must be licensed to qualify as a similarly situated health-care provider and testify against him is a dental board of Alabama or some other state. Dr. Stilwell is licensed to practice medicine; he is not licensed to practice dentistry. Thus, he is not licensed by the “appropriate regulatory board” of Alabama or another state. Craig v. Borcicky, 557 So.2d at 1255 (“The general rule is that a physician of one school of medicine is incompetent to testify in a malpractice case against a physician of another school of medicine.” (citing Wozny v. Godsil, 474 So.2d 1078 (Ala.1985))). Thus, the Sherrers have not demonstrated that Dr. Stilwell satisfies the first requisite to qualify as a “similarly situated health care provider” to Dr. Embry. § 6-5-548(b)(1), Ala.Code 1975.

The second requisite is that Dr. Stilwell be “trained and experienced in the same discipline or school of practice” as Dr. Embry. § 6 — 5—548(b)(2), Ala.Code 1975. Dr. Embry is trained as a general dentist and is licensed to practice dentistry in Alabama. The Sherrers state that Dr. Stilwell “had training for a period of five years with a dentist/oral surgeon/medical doctor” and contend that his “knowledge of extracting of teeth, and treatment of infection in the human jaw, and subsequent treatment for the same is equal to or superior to that of a general dentist.” Sherrers’ brief at 10. Dr. Embry attended dental school, is trained in the practice of general dentistry, and has been practicing general dentistry since 1999; Dr. Stilwell did not attend dental school, is not trained in the practice of general dentistry, and apparently has never practiced dentistry. It is true that “[t]he Medical Liability Act does not require that [Dr. Embry] and [Dr. Stilwell] have identical training, experience, or types of practice, or even the same specialties”; however, because general dentistry is the field in which Dr. Embry was practicing when he allegedly breached the standard of care, resulting in injury to Stephanie Sherrer, Dr. Stilwell’s training and experience must include general dentistry if it is to satisfy this second requisite of a “similarly situated health care provider.” Rodgers v. Adams, 657 So.2d 838, 842 (Ala.1995).

The record establishes that Dr. Stilwell is a medical doctor who practiced plastic and reconstructive surgery; the record does not establish that Dr. Stilwell’s training includes general dentistry. Because Dr. Stilwell does not have training and experience in the field of general dentistry, the Sherrers have not established the second requirement for a “similarly situated health care provider.” § 6-5-548(b)(2), Ala. Code 1975; Ex parte Waddail, 827 So.2d 789, 795 (Ala.2001) (“The second criterion requires that the [proffered expert witness] have training and experience in the same field [as the defendant doctor].”).

The third requisite is that Dr. Stilwell have “practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.” Ala.Code 1975, § 6-5-548(b)(3). Because Dr. Em-bry’s alleged breach of the standard of care occurred in September 2003, Dr. Stil-well must have practiced dentistry during the period from September 2002 to September 2003. However, there is no evidence indicating that Dr. Stilwell has ever practiced general dentistry, and, according to his own curriculum vitae, Dr. Stilwell retired from the private practice of plastic and reconstructive surgery in 2000. Dr. Stilwell notes in his affidavit that “a portion of my training was with Dr. Reed Dingman, a dentist/oral surgeon/medical doctor during the period of 1960-1962 concerning the treatment of the human jaw, and infections in the human jaw, and I have had training and experience in extraction of teeth as relates to treatment of the human jaw.” This experience, however, does not constitute the practice of general dentistry. Further, although Dr. Stil-well maintains that he “continued to have a limited medical practice in 2001 through 2003,” he does not explain the nature of this “limited medical practice” and whether that practice was at all related to dentistry. Thus, the Sherrers have failed to demonstrate that the trial court exceeded its discretion in concluding that Dr. Stil-well failed to meet the third requirement for qualifying as a “similarly situated health care provider.”

To be admissible, an affidavit offered in support of a summary-judgment motion must “show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 56(e), Ala. R. Civ. P. Dr. Stilwell’s affidavit does not demonstrate that he satisfies the requirements for qualifying as a “similarly situated health care provider” under § 6-5-548(b), Ala.Code 1975. Thus, the trial court did not exceed its discretion in excluding his expert testimony. Because Dr. Stilwell’s affidavit is not admissible, the Sherrers have failed to rebut Dr. Embry’s prima facie showing that he met the applicable standard of care in his treatment of Stephanie Sherrer. Thus, the trial court did not err in entering a summary judgment in favor of Dr. Em-bry.

We hold that the trial court did not err in striking Dr. Stilwell’s affidavit, and we therefore affirm the summary judgment in favor of Dr. Embry.

AFFIRMED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . James Sherrer asserted a loss-of-consortium claim.

      . If Dr. Stilwell's medical knowledge as a medical doctor is in fact superior to that of a general dentist, then the standard of care applicable to him and with which he is familiar may well differ from that applicable to a dentist practicing general dentistry.


author: THOMPSON, Presiding Judge.

text:
    Richard Julius WYNN v. Dixie D. KOVAR.
    2050835.
    Court of Civil Appeals of Alabama.
    Feb. 2, 2007.
    G. Whit Drake of Drake Law Firm, Birmingham, for appellant.
    Staci G. Cornelius of Gaines, Wolter & Kinney, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Richard Julius Wynn sued Dixie D. Kovar and a number of other defendants seeking to recover damages for injuries he alleged he sustained as a result of a collision between a vehicle he was driving and a vehicle driven by Kovar. Over the course of the litigation, the trial court entered judgments in favor of all defendants except Kovar. Wynn’s claims against Kovar were ultimately tried before a jury.

At the trial, Wynn requested that the trial court charge the jury on the issue of negligence per se based on his allegation that Kovar had violated § 32-5A-90, Ala. Code 1975. The trial court did not include negligence per se as a part of its jury charge, and Wynn properly objected pursuant to Rule 51, Ala. R. Civ. P. The trial court overruled Wynn’s objection.

The jury returned a verdict in favor of Kovar. On January 10, 2006, the trial court entered a judgment based on that verdict. Wynn filed a motion for a new trial; that motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. Wynn timely appealed, and our supreme court transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The pertinent facts are not in dispute. On December 13, 2001, Kovar was traveling east on Interstate 20 (“1-20”) in St. Clair County. The weather conditions were poor; a witness to the accident that forms the basis for this dispute testified that rain varied between moderate to light and that the road was wet and “slick.”

Another witness, who was traveling behind Kovar’s vehicle immediately before the accident occurred, testified that his vehicle was traveling at a speed of 70 miles per hour and that he believed Kovar was traveling at approximately the same speed. Kovar, who has no memory of the accident or the events leading up to the accident, testified that she would have been cautious and driving at a lower speed in weather conditions such as those present at the time of the accident.

It is undisputed that Kovar’s vehicle hydroplaned and that she lost control of the vehicle. Kovar’s vehicle traveled to the right east-bound lane of the roadway; a witness testified that, at the time, he believed that Kovar’s vehicle would exit the roadway on the right side of the roadway. However, Kovar’s vehicle then spun; around, crossed the east-bound lanes of I-20, and traveled through the median and into oncoming traffic in the west-bound lanes of 1-20. As Kovar’s vehicle entered the west-bound lanes of 1-20, an 18-wheel tractor-trailer truck driven by Wynn (hereinafter “Wynn’s truck”) struck Kovar’s vehicle. As a result, Wynn’s truck jack-knifed, separated from its trailer, and turned over. One other 18-wheel tractor-trailer truck and another automobile were also involved in the collision; the extent of the injuries of the driver of the other truck is unclear, but the driver of the automobile was killed in the accident. Wynn suffered injuries to his neck, back, right knee, right foot, and right hand. Kovar was also seriously injured as a result of the accident.

On appeal, Wynn argues that the trial court erred in failing to charge the jury on the issue of negligence per se. Wynn maintains that Kovar violated one of Alabama’s rules of the road, specifically § 32-5A-90, Ala.Code 1975, which governs driving on a divided highway. Wynn asserts that § 32-5A-90 forbids a vehicle from crossing a median on a divided highway such as 1-20 and that Kovar violated that statute on December 13, 2001, when her vehicle crossed the median on 1-20 and traveled into oncoming traffic, resulting in the accident that caused Wynn’s injuries. Wynn insists that Kovar’s alleged violation of one of the rules of the road constitutes negligence per se and that the jury should have been charged with the law pertaining to negligence per se.

We agree with Wynn that the violation of one of the rules of the road will, generally speaking, be deemed to constitute negligence per se. See Consolidated Freightways, Inc. v. Pacheco-Rivera, 524 So.2d 346, 349 (Ala.1988) (a violation of one of the rules of the road constitutes negligence per se); see also Carroll v. Deaton, 555 So.2d 140, 141 (Ala.1989); and Simpson v. Glenn, 264 Ala. 519, 88 So.2d 326 (1956). However, Kovar argued, and it appears that the trial court agreed, that she did not violate § 32-5A-90 on the date of the accident. Section 32-5A-90 provides:

“Whenever any highway has been divided into two or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so construed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehi- ele shall be driven over, across or within any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a cross-over or intersection as established, unless specifically prohibited by public authority.”

(Emphasis added.)

In arguing that she did not violate § 32-5A-90, Kovar contends, among other things, that because she did not have control of her vehicle at the time it entered the median, she did not “drive” her vehicle “over, across, or within” the median between the eastbound and the westbound lanes of traffic on 1-20. It is well settled that in interpreting a statute a court must “ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” Id.

Section 32-5A-90 forbids a person to drive a vehicle into, over, or through a median. The word “drive” has been defined as “to operate the mechanism and controls and direct the course of (as a vehicle).” Merriam-Webster’s Collegiate Dictionary 381 (11th ed.2003). Black’s Law Dictionary 533 (8th ed.2004) defines the term “driving” as “[t]he act of directing the course of something, such as an automobile....” Thus, the term “drive” connotes an action or active conduct in directing the course of a vehicle.

The evidence in this ease indicates that Kovar lost control of her vehicle and that the vehicle veered to the right side of the roadway, turned, and then traveled into the median. The evidence established that Kovar did not have control over her vehicle at the time it traveled into the median and, therefore, that, when her vehicle traveled into the median, Kovar had taken no direct action to maneuver her vehicle into the median. We must conclude that the evidence in this case does not establish or indicate that Kovar drove her vehicle into the median and, therefore, that the evidence does not demonstrate that Kovar violated § 32-5A-90, Ala.Code 1975.

We hold that the trial court did not err in refusing to charge the jury on the issue of negligence per se based on an alleged violation of § 32-5A-90. Accordingly, we affirm as to this issue. Given that holding, we pretermit discussion of Wynn’s argument that the trial court’s refusal to charge the jury on the issue of negligence per se was prejudicial to his cause of action.

AFFIRMED.

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

      . The trial court did charge the jury by reading § 32-5A-90, Ala. Code 1975, and another one of the rules of the road, but it instructed the jury only that the violation of one of those statutes constituted prima facie negligence.


text:
    Phyllis K. KENNEDY, Director, State Department of Industrial Relations v. Deadra MERRIMAN and Brian Merriman, d/b/a Merriman’s Garage.
    2050844.
    Court of Civil Appeals of Alabama.
    Feb. 9, 2007.

      Frank D. Marsh, general counsel and special asst. atty. gen., State Department of Industrial Relations, for appellant.
    George M. Vaughn of Paden & Paden, P.C., Birmingham, for appellees.
   THOMPSON, Presiding Judge.

On April 13, 2004, the State Department of Industrial Relations (hereinafter “DIR”) issued a “Decision on Unemployment Compensation Tax Liability” wherein it found Deadra Merriman and Brian Merriman, doing business as Merriman’s Garage (hereinafter “Merriman”), to be liable for unemployment-compensation benefits for mechanics that DIR determined to be employees of Merriman. Based on this finding, DIR made a final assessment against Merriman in the amount of $7,307.55 for unemployment-compensation contributions, an employment-security assessment, interest, and penalties.

On May 12, 2004, Merriman appealed DIR’s decision to the Morgan Circuit Court pursuant to § 25-4-134(c)(3), Ala. Code 1975. Following a bench trial held on January 3, 2006, the trial court entered a judgment on January 17, 2006, declaring the final assessment made by DIR against Merriman to be invalid and finding the mechanics who worked at the garage operated by Merriman to be independent contractors.

On February 16, 2006, Merriman filed an opposition to a postjudgment motion purportedly filed earlier by DIR pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the trial court’s January 17, 2006, judgment. Subsequently, on March 3, 2006, DIR filed a motion, purportedly pursuant to Rule 59(e), in the trial court. In its March 3, 2006, motion, DIR certified that it had served Merriman with a copy of the motion on February 27, 2006. The trial court set DIR’s March 3, 2006, motion for a hearing to be held on June 27, 2006. However, the trial court did not hold a hearing on the motion. On June 26, 2006, DIR filed its notice of appeal.

Unfortunately, we are unable to reach the merits of this appeal. It is well settled that jurisdictional matters are of such significance that an appellate court may take notice of them ex mero motu. Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997); Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). “The timely filing of [a] notice of appeal is a jurisdictional act.” Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006) (“an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived”).

Rule 59(e), Ala. R. Civ. P., provides that a motion to alter, amend, or vacate a trial court’s judgment “shall be filed not later than thirty (30) days after entry of the judgment.” (Emphasis added.) Rule 5(e), Ala. R. Civ. P., provides, in pertinent part:

“Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.”

DIR represents to this court that it filed its March 3, 2006, motion before March 3, 2006. However, the motion filed by DIR is stamped as filed in the circuit clerk’s office on March 3, 2006. The record does not reveal that DIR attempted to file its March 3, 2006, motion with the trial judge pursuant to Rule 5(e). Although we recognize the inherent improbability of Merriman’s filing a response to a motion without first receiving a motion to which to respond, our review is limited to what is before us in the record.

The record reveals that DIR filed its purported postjudgment motion on March 3, 2006, 45 days after the trial court entered its judgment on January 17, 2006. Because DIR filed that motion outside the 30-day period provided in Rule 59(e), we calculate the time DIR had to file its appeal from the date the trial court entered its January 17, 2006, judgment. See Payne v. City of Athens, 607 So.2d 292 (Ala.Civ.App.1992)(recognizing that an untimely postjudgment motion does not suspend the time for filing an appeal); see also City of Talladega v. McRae, 375 So.2d 429 (Ala.1979)(holding that untimely filing of a postjudgment motion does not suspend the time one is allowed to perfect an appeal).

DIR filed its notice of appeal on June 26, 2006, more than 42 days after the trial court entered its judgment. Because DIR’s notice of appeal was untimely, it did not invoke the jurisdiction of this court, and this appeal must be dismissed. Rule 2(a)(1), Ala. R.App. P.

APPEAL DISMISSED.

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