author: BOLIN, Justice. LYONS, Justice

text:
    THE LLOYD NOLAND FOUNDATION, INC. v. HealthSOUTH CORPORATION.
    1041121.
    Supreme Court of Alabama.
    Aug. 24, 2007.

      Sydney F. Frazier, Jr., and Roy J. Crawford of Cabaniss, Johnston, Gardner, Dumas & O’Neal, LLP, Birmingham; Daniel J. Reynolds, Jr., Bessemer; J. Timothy Francis, Birmingham; and W. Ryan deGraffenried, Jr., of Watson, deGraffen-ried, Hardin & Tyra, Tuscaloosa, for appellant.
    Bruce F. Rogers and Charles K. Hamilton of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham; and Jon B. Terry of Bains & Terry, Bessemer, for appellee.
   BOLIN, Justice.

The Lloyd Noland Foundation, Inc. (“the Foundation”), appeals from the Jefferson Circuit Court’s order granting a motion filed by HealthSouth Corporation to dismiss the Foundation’s complaint on the grounds of res judicata and collateral estoppel. We reverse and remand.

Facts and Procedural History

In 1996, the Foundation and Tenet Health System Medical, Inc., a subsidiary of Tenet Healthcare Corporation (“Tenet”), entered into a stock-purchase agreement pursuant to which Tenet acquired the stock and assets of the Lloyd Noland Hospital. The Foundation alleges that a number of contractual provisions were connected with this sale, including commitments from Tenet to provide health benefits to retired employees of the hospital, a long-term lease on the Foundation’s management offices at the hospital, an option to repurchase 120 licensed beds at the hospital (“the option beds”) for one dollar ($1.00), a duty to cooperate in obtaining the necessary certificates of need (“CONs”) and in licensing the option beds in the name of the Foundation, and a separate lease agreement providing space in the hospital for 55 of the option beds in a long-term acute-care unit. The Foundation also required Tenet to bind any successor owner to these same obligations.

Tenet operated the hospital for approximately three years then sold it to the City of Fairfield Healthcare Authority (“Fair-field”) in 1999. The sale to Fairfield involved four contracts: (1) an asset sale agreement executed on October 21, 1999; (2) a security agreement executed on November 15, 1999; (3) a six-month promissory note executed by Fairfield on November 15, 1999, in favor of Tenet; and (4) a guaranty agreement executed on November 15, 1999. The promissory note was extended by an “Agreement Regarding Amendment of Secured Promissory Note,” dated May 15, 2000. HealthSouth managed the hospital on behalf of Fairfield from 1999 to 2003 because Fairfield had no employees or assets; at that time, according to HealthSouth, HealthSouth “repossessed” the hospital. (HealthSouth’s brief at p. 4.) The hospital was subsequently closed.

On February 11, 2000, Fairfield brought a declaratory-judgment action in the Montgomery Circuit Court, seeking a judgment declaring that the Foundation was not entitled to CONs to reclassify 100 existing “acute-care” beds at the hospital to “long-term acute-care” hospital beds pursuant to § 22-21-265, Ala.Code 1975, and Ala. Admin. Code (SHPDA) r. 410-1-2-.19. The Foundation filed a counterclaim against Fairfield, alleging that Fairfield had expressly assumed the obligations of the contracts between Tenet and the Foundation, including the obligations of the lease agreement relating to 55 of the option beds and the duty to cooperate in obtaining the necessary CONs. The Montgomery Circuit Court entered a summary judgment in favor of Fairfield, and the Foundation appealed. This Court reversed the summary judgment and concluded that Fairfield was “contractually bound to, among other things, ‘cooperate with [the Foundation] in having the Option Beds relicensed, recertified or relocated for long term acute care purposes at the Hospital or at other sites,’ so that the Foundation could, following the issuance of the CONs, purchase up to 120 beds from Fairfield.” Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 266 (Ala.2002).

On February 16, 2001, the Foundation sued Tenet in the United States District Court for the Northern District of Alabama, on the basis of diversity jurisdiction. The Foundation alleged that Tenet failed to ensure that certain obligations arising out of Tenet’s purchase of the hospital from the Foundation were met and sought damages under a guaranty agreement executed by Tenet and the Foundation in 1996. Specifically, the Foundation alleged that the obligations assumed by Tenet in its purchase of the hospital and guaranteed in the guaranty agreement were:

“(a) The obligation to resell to the Foundation for One Dollar ($1.00) 120 of the licensed acute-care hospital beds conveyed to [Tenet] by the Foundation pursuant to the Stock Purchase Agreement, such resale to take place when the Foundation became legally authorized to operate the beds for long-term acute-care services.
“(b) The obligation to cooperate with the Foundation in having the beds reli-censed, recertified or relocated for long-term acute-care services at the Lloyd Noland Hospital or at other locations.
“(c) The obligation to lease to the Foundation 19,000 square feet in the Lloyd Noland Hospital for the purposes of operating the long-term acute-care beds.
“(d) The obligation to provide certain medical benefits to retired employees of the Foundation.
“(e) The obligation to bind any successors or assigns of [Tenet] by the same duties and obligations to the Foundation which were required of [Tenet] under the Stock Purchase Agreement.
“(f) The obligation to obtain the prior written consent of the Foundation before any of the assets, rights and duties under the Stock Purchase Agreement were delegated or assigned by [Tenet] to a third party.”

The Foundation alleged that Tenet breached the following obligations:

“(a) [Tenet] breached its obligation to obtain written consent from the Foundation prior to the assignment of the assets, rights and duties under the Stock Purchase Agreement.
“(b) [Tenet] breached its obligation to ensure that the aforesaid terms and provisions of the Stock Purchase Agreement were binding and enforceable on [Fairfield] as the successor and assign of [Tenet], in that [Fairfield] has failed and refused to honor the aforesaid duties and obligations to the Foundation, contending instead that it has assumed none of those obligations. Instead [Fairfield] has intentionally, willfully, deliberately and maliciously set about to delay and destroy the Foundation’s contractual rights under the Stock Purchase Agreement by the following acts and conduct:
“(1) [Fairfield] has denied, rejected and repudiated each and all of the foregoing obligations of [Tenet] to the Foundation.
“(2) [Fairfield] has instituted litigation and administrative proceedings for the purpose of nullifying, delaying, preventing and otherwise interfering with and damaging the Foundation’s contractual rights under the Stock Purchase Agreement with [Tenet].
“(3) [Fairfield] has entered into contracts and agreements for the operation of the Lloyd Noland Hospital with a competitor of the Foundation as part of a plan, intent and design to interfere with and damage the Foundation’s contractual rights under the Stock Purchase Agreement with [Tenet].
“(4) [Fairfield] has failed and refused to honor the obligations of the medical benefit program for retirees of the Foundation.”

Subsequently, Tenet filed a third-party complaint against both Fairfield and HealthSouth, seeking indemnity based on a contractual provision in the agreement amending the six-month promissory note, which was executed on May 15, 2000. The provision stated as follows:

“Indemnification obligation: [Fair-field] and Guarantor [HealthSouth] shall jointly and severally indemnify Payee [Tenet] for any loss, damage, expenses, or costs (including attorney’s fees) incurred by Payee that are attributable to any claim by the Lloyd Noland Foundation, an Alabama nonprofit corporation (‘LNF’), based on acts or failure to act by [Fairfield] and/or Guarantor after the Closing Date (as such term is defined in the Asset Sale Agreement) with respect to ‘LNF beds’ as such term is used in Schedule 1.7(f) to the Asset Sale Agreement and/or the Lloyd Noland Retiree Medical Discount Program, referenced in Schedule 1.7(f).”

The promissory note was paid by HealthSouth on November 15, 2000. Both Fairfield and HealthSouth moved for a summary judgment in the federal litigation, arguing that the agreement amending the promissory note, which included the indemnity provision, expired when Health-South paid the promissory note in full. Additionally, Fairfield argued that it had not authorized HealthSouth to execute an indemnity agreement on its behalf. Tenet filed a motion for a partial summary judgment, arguing that the agreement to indemnify did not end when HealthSouth paid the promissory note.

On August 27, 2004, while the federal action was pending, the Foundation filed a complaint in the Birmingham Division of the Jefferson Circuit Court against HealthSouth based on alleged conduct related to the 1999 sale of the hospital by Tenet to Fairfield and the subsequent management of the hospital. The Foundation alleged that HealthSouth had misrepresented “that [Fairfield] was the purchaser of the Hospital” when, the Foundation alleged, Fairfield had no finances, no credit, no employees, and was not a duly organized entity. The Foundation also alleged fraudulent misrepresentation based on statements made when HealthSouth acquired the hospital from Fairfield in 2003. The Foundation alleged that HealthSouth had intentionally interfered with its contractual relations with Tenet when Health-South arranged the purchase of the hospital by Fairfield. The Foundation sought $15,000,000 in actual damages and $100,000,000 in punitive damages. In the alternative, the Foundation sought injunc-tive relief and a judgment declaring (1) that Fairfield was a mere instrumentality of HealthSouth; (2) that all the obligations that were assumed by Fairfield when it purchased the hospital in 1999 were binding on HealthSouth; (3) that this Court’s decision in Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Authority, supra, upholding the Foundation’s rights under the stock-purchase agreement was binding on HealthSouth; (4) that Health-South was liable for damages resulting from the closure of the hospital; and (5) that HealthSouth was barred by the doctrine of equitable estoppel from failing to recognize the medical-benefit program of the Foundation’s retirees. The Foundation also sought to enjoin HealthSouth from assigning or selling the option beds provided to the Foundation under the stock-purchase agreement.

On October 4, 2004, HealthSouth filed a motion for a change of venue, seeking to transfer the case to the Bessemer Division of the Jefferson Circuit Court. Health-South attached an affidavit of an employee in support of the motion.

On November 4, 2004, the federal district court entered a summary judgment, granting in part and denying in part Fair-field’s motion for a summary judgment, granting HealthSouth’s motion for a summary judgment, and denying Tenet’s motion for a partial summary judgment. Lloyd Noland Found., Inc. v. Tenet Healthcare Corp., (No. 01-cv-0437-BE-S and 01-cv-1904-BE-S, November 9, 2004) (N.D.Ala.2004). Specifically, the district court concluded that the indemnity provision in the agreement amending the promissory note, dated May 15, 2000, expired upon payment of the promissory note. The court also held that the issue whether Fairfield had authorized HealthSouth to execute an indemnity agreement on its behalf was moot.

On November 22, 2004, HealthSouth filed its answer to the complaint filed in the Jefferson Circuit Court. On November 25, 2004, the case was transferred to the Bessemer Division. On January 28, 2005, HealthSouth filed a motion to dismiss the Foundation’s complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P. On February 3, 2005, the trial court entered an order setting the motion to dismiss for a hearing on March 7, 2005. HealthSouth’s brief in support of its motion to dismiss, filed on February 28, 2005, asserted the following grounds for dismissal: that the Foundation’s fraud claim must fail because the Foundation did not allege direct injury as a result of its own reliance on Health-South’s alleged misrepresentations; that the Foundation’s intentional-interference claim must fail because HealthSouth was not a stranger to the business relationship at issue; that the Foundation’s request for declaratory relief does not state a justicia-ble controversy but merely seeks an advisory opinion; and that the Foundation is not entitled to injunctive relief. Health-South attached to its brief a copy of the Foundation’s complaint filed against Tenet in the federal litigation. HealthSouth also attached a copy of a purported amendment to the complaint filed in the federal action, but the amendment is not signed or dated, and it does not bear the federal court’s stamp showing that the amendment was filed.

On March 3, 2005, HealthSouth filed an amended answer raising the defenses of res judicata, collateral estoppel, equitable estoppel, and lack of privity between it and the Foundation. HealthSouth asserted that “the estoppel theories” were based on the federal litigation. On March 28, 2005, the Foundation filed a memorandum in opposition to HealthSouth’s motion to dismiss. On March 29, 2005, HealthSouth filed a supplemental brief in support of its motion to dismiss, arguing that the Foundation’s complaint should be dismissed on the grounds of res judicata and collateral estoppel based on the federal litigation. Attached to its supplemental brief was a copy of the federal court’s memorandum opinion entered on November 4, 2004.

On April 11, 2005, the Jefferson Circuit Court granted HealthSouth’s motion to dismiss. The entry on the case-action summary states: “HealthSouth Corporation’s motion to dismiss based on collateral estoppel and res judicata is granted. These same issues could have been raised in Federal Court Cases but were not.”

Standard of Review

We have set forth the standard of review that must be applied in reviewing a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P.:

“On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993) (citations omitted).

The trial court based its final order on the affirmative defenses of res judicata and collateral estoppel. Rule 8(c), Ala. R. Civ. P., provides that affirmative defenses shall be set forth in a responsive pleading. “Res judicata” and “estoppel” are two of the affirmative defenses listed in Rule 8(c). An affirmative defense is “[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiffs or prosecution’s claim, even if all the allegations in the complaint are true.” Black’s Law Dictionary 451 (8th ed.2004). The party asserting the affirmative defense bears the burden of proving it. Stewart v. Brinley, 902 So.2d 1 (Ala.2004).

Generally, an affirmative defense is pleaded in a responsive pleading, such as an answer to a complaint. The reason affirmative defenses must be pleaded in a responsive pleading is to give the opposing party notice of the defense and a chance to develop evidence and offer arguments to controvert the defense. Blonder-Tongue Labs., Inc. v. University of Illinois, 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). “Since the facts necessary to establish an affirmative defense generally must be shown by matters outside the complaint, the defense technically cannot be adjudicated on a motion under Rule 12[, Fed.R.Civ.P.].” 5 Charles Alan Wright and Arthur C. Miller, Federal Practice and Procedure § 1277 (3d ed.2004). However, a party can obtain a dismissal under Rule 12(b)(6), Ala. R. Civ. P., on the basis of an affirmative defense when “ ‘the affirmative defense appears clearly on the face of the pleading.’ ” Jones v. Alfa Mut. Ins. Co., 875 So.2d 1189, 1193 (Ala.2003)(quoting Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala.1981)). In Jones v. Alfa, swpra, the face of the plaintiffs’ complaint did not indicate that the statutory limitations period applicable to their bad-faith refusal-to-pay-insurance-benefits claim had expired before they sued; therefore, the insurer was not entitled to a dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P., on the affirmative defense of the statute of limitations.

In Wilger v. State Department of Pensions & Security, 390 So.2d 656 (Ala.Civ.App.1980), the father filed a custody petition for six of his children who were under the care and custody of the Department of Pensions and Security. The Department did not file a responsive pleading or motion but argued at trial that to allow the father to retry the custody issue would be contrary to the doctrine of res judicata. The trial court dismissed the father’s petition. The Court of Civil Appeals reversed the judgment of the trial court because the record did not contain the necessary pleadings and proof to support the judgment of dismissal. The court noted that res judi-cata was an affirmative defense that should be pleaded under Rule 8, Ala. R. Civ. P., and that the Department had the burden of proving from the evidence the sufficiency of the defense. “In some instances, res judicata may be properly raised by means of a motion to dismiss or, more commonly, through a motion for a summary judgment.” 390 So.2d at 657.

In the present case, the Foundation’s complaint does not mention the federal litigation. In response to the Foundation’s complaint, HealthSouth, in compliance with Rule 8(c), Ala. R. Civ. P., pleaded res judicata and collateral es-toppel in its amended answer. Health-South filed a “motion to dismiss,” and, in a supplemental brief in support of its motion to dismiss, it addressed the doctrines res judicata and collateral estoppel. Additionally, HealthSouth attached filings from the federal court proceeding. Although HealthSouth’s motion addressing its defenses of res judicata and collateral estoppel was actually framed as a “motion to dismiss,” the motion should have been treated as one seeking a summary judgment because the face of the eom-plaint did not reference the prior litigation and HealthSouth properly pleaded res judicata and collateral estoppel in its answer. The substance of a motion, not what a party calls it, determines the nature of the motion. Ex parte Lewter, 726 So.2d 603 (Ala.1998). Furthermore, the trial court clearly considered matters outside the pleadings in making its determination, thus converting the Rule 12(b)(6) motion to dismiss into a Rule 56, Ala. R. Civ. P., summary-judgment motion. Although neither party has raised the issue of the appropriateness of converting the motion from a motion to dismiss to a motion for a summary judgment, we address this matter because it implicates our standard of review. We find persuasive the following text addressing affirmative defenses under the Federal Rules of Civil Procedure:

“Obviously, as many cases make clear, on a motion for summary judgment district courts may consider evidence beyond the pleadings bearing on a defendant’s challenge to a claim for relief that falls within the scope of the Rule 8(c) affirmative defenses. In addition, both Rule 12(b) and Rule 12(c) provide that when affidavits or other matter outside the pleadings is presented to the district court on a motion to dismiss or for judgment on the pleadings and this matter is not excluded by the court, the motion ‘shall be treated’ as one for summary judgment. Thus, in practice, courts that allow the adjudication of affirmative defenses on a motion to dismiss or for judgment on the pleadings after permitting the parties to include extra-pleading materials are converting these motions into summary judgment motions; this requires the court to give all parties notice and the opportunity provided by Rule 56 to present pertinent evidentiary material to the district judge. This procedure obviates the danger that the assertion of an affirmative defense by a motion to dismiss under Rule 12 might deprive the plaintiff of an adequate opportunity to present arguments rebutting the defense. However, it must be remembered that disputes over material issues of fact cannot be resolved on a motion to dismiss or for summary judgment but must be reserved for resolution at trial by the appropriate trier.”

5 Wright and Miller, supra, § 1277 (footnotes omitted).

Our standard of review for a summary judgment is as follows:

“We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bookman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. We review the evidence in a light most favorable to the nonmovant.’ 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).”

Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006).

Analysis

The trial court concluded that the Foundation’s complaint was barred by the doctrines of res judicata and collateral estop-pel based on the federal litigation.

Res Judicata

The elements of res judicata are: “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of parties, and (4) with the same cause of action presented in both actions.” Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998). “If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.” 723 So.2d at 636. “Res judicata, therefore, bars a party from asserting in a subsequent action a claim that it has already had an opportunity to litigate in a previous action.” Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So.2d 507, 517 (Ala.2002).

The federal litigation involved claims by the Foundation against Tenet, in which the Foundation alleged that Tenet had failed to ensure that certain obligations arising out of Tenet’s purchase of the hospital from the Foundation were met, including providing health benefits to the retired employees of the hospital, the option to repurchase 120 licensed beds, a duty to cooperate in having the beds relicensed for long-term acute care, and an obligation to lease space from the Foundation to operate the long-term acute-care beds. Pursuant to Rule 14, Fed.R.Civ.P., Tenet filed a third-party complaint against Fairfield and HealthSouth in the federal litigation seeking indemnity. HealthSouth moved for a summary judgment, which the federal district court granted because it found that the indemnity provision in the agreement amending the promissory note, dated May 15, 2000, expired upon payment of the promissory note and that HealthSouth thus was under no duty to indemnify Tenet in the federal litigation. HealthSouth now argues that the summary-judgment order in the federal litigation precludes the Foundation’s present claims against it because “[t]his case involves the same alleged primary rights and duties, as well as the same damages and requests for relief.” (HealthSouth’s brief at 30.)

The trial court’s order dismissing the present action indicates that Health-South’s motion to dismiss on the basis of the doctrine of res judicata was granted because those same claims could have been raised in the federal litigation but were not. The Foundation argues that the claims it now asserts against HealthSouth are not barred by its failure to assert them in the federal litigation because not all the elements of res judicata are met. The Foundation further argues that its present action should not be barred in that it was prevented from bringing the present claims in the federal litigation because the federal district court did not have supplemental jurisdiction over the claims it now asserts against HealthSouth. We do not decide whether the same parties or their privies were involved in the federal litigation, nor do we decide whether the present action arises from the same cause of action as did the federal litigation. We proceed instead to consider whether the Foundation was required to raise these issues in the federal litigation based on supplemental jurisdiction.

The grant of diversity jurisdiction is codified at 28 U.S.C. § 1332. The purpose of diversity “is to provide a federal forum for important disputes where state courts might favor, or be perceived as favoring, home-state litigants.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553-54, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). The federal courts developed the common-law doctrines of pendant jurisdiction (allowing state-law claims linked to federal claims in federal court) and ancillary jurisdiction (allowing nondiverse parties linked to diverse parties in federal court) to avoid piecemeal litigation. In 1990, Congress codified the doctrines of pendant and ancillary jurisdiction at 28 U.S.C. § 1367, as “supplemental jurisdiction.” Section 1367(a) establishes that supplemental jurisdiction is generally applicable in diversity cases. However, subsection (b) makes an important exception:

“(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.”

“Although ancillary and pendent jurisdiction now are both codified in a new statutory jurisdiction, termed supplemental jurisdiction, that form of jurisdiction is not available in actions premised on diversity of citizenship over ‘claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24.’ ” 6 Charles Alan Wright et al., Federal Practice and Procedure § 1444 (2d ed.1990). To allow otherwise would let the “plaintiff ... defeat the statutory requirement of complete diversity by the simple expedient of suing only those defendants who were of diverse citizenship and waiting for them to implead nondi-verse defendants.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (footnote omitted).

For purposes of diversity, a corporation is deemed a citizen of any state where it is incorporated and where it has its principal place of business. 28 U.S.C. § 1382(c). The Foundation’s complaint against Tenet in the federal litigation was based solely on diversity of citizenship. Tenet impleaded HealthSouth as a third-party defendant in the federal litigation. Both the Foundation and HealthSouth have their principal places of business in Alabama. In the federal litigation, the mandate of complete diversity would have applied to the Foundation’s claims against third-party defendant HealthSouth. Because § 1367(b) barred the exercise of supplemental jurisdiction over the Foundation’s state-law claims against HealthSouth, the Foundation is correct in its assertion that it was prohibited from asserting its state-law claims against HealthSouth in the federal litigation.

HealthSouth does not dispute that it and the Foundation were both citizens of the same state. Instead, Health-South argues that the Foundation could have chosen to bring its claims against Tenet in state court rather than in federal court. This Court has stated that for purposes of res judicata, the prior judgment must be rendered by a court of competent jurisdiction. A court of competent jurisdiction is a court with jurisdiction over the subject matter. If a court lacks jurisdiction over a claim, then that claim would not qualify as one that “might have been tried” by that court.

The doctrine of res judicata does not necessarily apply when “[t]he plaintiff was unable to rely on a certain theory ... or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action .... ” Restatement (Second) of Judgments § 26 (1982). In other words, “[i]f the court rendering judgment lacked subject-matter jurisdiction over a claim or if the procedural rules of the court made it impossible to raise a claim, then it is not precluded.” Browning v. Navarro, 887 F.2d 553, 558 (5th Cir.1989). The Foundation was not able to assert its claims against Health-South in the federal litigation. As a result, the trial court erred in concluding that the affirmative defense of res judicata prevented the Foundation from bringing its claims against HealthSouth in state court.

Collateral Estoppel

The trial court also based its judgment on the doctrine of collateral estoppel. Collateral estoppel applies when (1) the issue in a prior case was identical to the issue being litigated in the present action, (2) the issue was actually litigated in the prior action by a court of competent jurisdiction, (3) resolution of that issue was necessary to the prior judgment, and (4) the same parties are involved in the two actions. Smith v. Union Bank & Trust, 653 So.2d 933 (Ala.1995); Reed v. Brookwood Med. Ctr., 641 So.2d 1245 (Ala.1994).

The doctrine of collateral es-toppel is not applicable in the present case. The order in the federal litigation granting HealthSouth’s summary-judgment motion addressed only the indemnity clause in Tenet and HealthSouth’s agreement amending the promissory note, dated May 15, 2000. The Foundation’s complaint in the present action involves HealthSouth’s alleged conduct related to the 1999 sale and the subsequent management of the hospital. The issue addressed by the holding in the federal litigation — whether HealthSouth had to indemnify Tenet — is not identical to any of the issues to be addressed in the present litigation. Furthermore, collateral estoppel is not applicable where the plaintiff was unable to seek a certain remedy or form of relief in the first action because of the limitations on the subject-matter jurisdiction of the courts. See Restatement (Second) of Judgments § 26 (1982). Collateral estop-pel does not apply where it is “asserted in an action over which the court rendering the prior judgment would not have had subject matter jurisdiction.” Restatement (Second) of Judgments § 28(3) cmt. d (1982). “[Ajffcer a court has incidentally determined an issue that it lacks jurisdiction to determine directly, the determination should not be binding when a second action is brought in a court having such jurisdiction.” Restatement (Second) of Judgments § 28(3) cmt. d. As discussed above, the federal court lacked supplemental jurisdiction over the Foundation’s state-law claims against HealthSouth. Therefore, the trial court erred in concluding that the Foundation’s claims were barred by the doctrine of collateral estop-pel.

Other Grounds

HealthSouth argues that this Court could affirm the trial court’s judgment on the other grounds raised in its original “motion to dismiss.” An appellate court may affirm the judgment of the trial court when the trial court has reached the right result for the wrong reason. Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013, 1017 (Ala.2002). However, this rule should not apply where the “wrong reason” prevented a party from properly presenting his case or prejudiced his rights. In the present case, based on the record before us, it appears that the trial court entered its judgment solely on the grounds of res judicata and collateral es-toppel. On January 28, 2005, HealthSouth filed a motion to dismiss. On February 3, 2005, the trial court entered an order setting the motion to dismiss for a hearing on March 7, 2005. On February 28, 2005, HealthSouth filed a brief in support of that motion, alleging: that the Foundation’s fraud claim must fail because it did not allege direct injury as a result of its own reliance on HealthSouth’s alleged misrepresentations; that the Foundation’s intentional-interference claim must fail because HealthSouth was not a stranger to the business relationship at issue; that the Foundation’s request for declaratory relief does not state a justiciable controversy but merely seeks an advisory opinion; and that the Foundation is not entitled to in-junctive relief. On March 3, 2005, Health-South filed an amended answer, alleging the affirmative defenses of res judicata and collateral estoppel. Apparently, the hearing was held on March 7, 2005, as scheduled. On March 29, 2005, Health-South filed a supplemental brief, addressing solely the issues of res judicata and collateral estoppel and putting forward evidence in support of those two affirmative defenses. On April 11, 2005, the trial court entered its order stating: “Health-South Corporation’s motion to dismiss based on collateral estoppel and res judica-ta is granted. These same issues could have been raised in Federal Court Cases but were not.”

This Court has held that when a Rule 12(b)(6), Ala. R. Civ. P., motion is converted by the trial court through consideration of matters outside the pleadings into a Rule 56, Ala. R. Civ. P., motion for a summary judgment, the nonmoving party must be given notice of the trial court’s intentions. Hales v. First Nat’l Bank, 380 So.2d 797 (Ala.1980). A Rule 12(b)(6) motion addresses the claim itself. The mov-ant is asserting that the particular pleading to which the motion is directed does not sufficiently state a claim on which relief can be granted. It does not challenge the actual existence of a meritorious claim. In contrast, a summary judgment is based on the pleadings and any affidavits, depositions, and other forms of evidence relative to the merits of the challenged claim or defense. In its original motion to dismiss, HealthSouth tested the sufficiency of the Foundation’s complaint, not the merits. In its answer and supplemental brief, Health-South challenged the Foundation’s complaint on the grounds of res judicata and collateral estoppel pursuant to a Rule 56 summary-judgment motion. To now review the trial court’s judgment pursuant to the summary-judgment standard on the additional grounds raised in HealthSouth’s original motion to dismiss would be unfair because neither party has had the opportunity to present affidavits and other evidence to support the grounds raised in the original motion to dismiss. Accordingly, we pretermit discussion of the other grounds raised by HealthSouth.

Conclusion

The judgment of the trial court is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

COBB, C.J., and SEE, STUART, SMITH, and MURDOCK, JJ., concur.

LYONS and WOODALL, JJ., concur in part and concur in the result.

PARKER, J., recuses himself.

LYONS, Justice

(concurring in part and concurring in the result).

I concur in all aspects of the main opinion except for the rationale for not reaching the additional grounds relied upon by HealthSouth in its motion to dismiss. As to that issue, I concur in the result because the trial court has not yet ruled on those grounds.

WOODALL, J., concurs.

      . Rule 15(a), Ala. R. Civ. P., provides:
      "Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause."

      . In Lee L. Saad Constr., 851 So.2d at 520 n. 6, this Court cited the Restatement (Second) of Judgments § 26 (1982), Reporter's Note to comment c(l), which provides:
      "When the plaintiff, after having lost a state action, seeks relief with respect to the same transaction under a federal statute enforceable only in federal court, it may be argued that he should be held barred especially if he could have instituted his original suit in federal court where both federal and state grounds could have been considered .... It appears sounder, however, not to preclude the federal action by the doctrine of bar, but rather to allow a carry-over decided issue from the state to the federal action by way of issue preclusion
      (Emphasis omitted; emphasis added.) HealthSouth presents the flip side of this argument (barring a plaintiff from going to federal court when he could have resolved everything in state court). The comment above rejects the application of res judicata; however, collateral estoppel may be applicable. That is, although res judicata does not bar claims over which the first court lacked jurisdiction, the first court's decisions on issues common to those before the second court may have preclusive effect under the doctrine of collateral estoppel.

      . The Foundation's original brief to this Court addresses only the issues of res judicata and collateral estoppel. HealthSouth’s brief addresses those issues, as well as the four grounds asserted in its motion to dismiss. In its reply brief, the Foundation addresses the additional grounds argued by HealthSouth. This comports with this Court's interpretation of the rules of appellate review. See Pavilion Dev., LLC v. JBJ P’ship, 979 So.2d 24 (Ala.2007)(where the trial court specifies a basis for its ruling, the appellant does not waive additional arguments not addressed in its principal brief).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Terry Wayne BRAY v. Bernice Lee BRAY.
    2060345.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.
    Terry Wayne Bray, pro se.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Terry Wayne Bray (“the husband”) and Bernice Lee Bray (“the wife”) were divorced by an August 12, 2004, judgment of the trial court. On November 3, 2005, the husband filed a petition to modify the divorce judgment. Among other things, the husband sought to terminate his alimony payments to the wife. The wife responded pro se. The trial court heard ore tenus testimony at a hearing on the husband’s petition and entered an order that required the husband to continue paying $600 per month to the wife. The husband filed a postjudgment motion, which the trial court denied in part after a hearing. The husband filed a timely notice of appeal to this court.

The record shows the following relevant facts. The husband filed a complaint for a divorce in 2003. On November 10, 2003, the parties executed and filed a settlement agreement that stated, in part:

“Section V
“Alimony
“The [husband] shall pay to the [wife] $600 per month as periodic alimony so long as the [husband] draws 100 percent disability from the Veterans Administration at least at the current rate. The alimony shall be subject to termination upon meeting the requirements found in Section 30-2-55, Code of Alabama (1975).”

On December 1, 2003, the parties executed and filed a “Modification to Settlement Agreement” that included the following provision that purported to modify Section V of the November 10, 2003, agreement:

“Section V

“Alimony

“The [husband] shall pay to the [wife] $600 per month so long as the [husband] draws 100 percent disability from the Veterans Administration at least at the current rate. Said alimony shall be in lieu of any disability benefits. However, the [wife] shall retain the status of wife and spouse for Veteran’s Administration retirement-benefit purposes should the [husband] predecease the [wife].”

On August 12, 2004, the trial court entered a judgment divorcing the parties. The judgment incorporated the parties’ settlement agreement, stating:

“[T]he Settlement Agreement of the parties executed on the 10th day of November, 2003, which has been filed with and examined by the Court be and the same is ratified and confirmed, and that said Settlement Agreement be made a part of this by reference [to] the same as if it were fully set out herein.”

(Emphasis added.)

In 2005, the husband learned that the wife was cohabitating with another man. He discontinued his $600 monthly alimony payments to the wife and filed his petition to modify the divorce judgment as to those payments. The trial court heard ore ten-us testimony, and the wife confirmed that she had in fact remarried in October 2005. Apparently based on the December 1, 2003, agreement, the trial court ordered as follows:

“The payments set forth as ‘Alimony’ in Section V of the Settlement Agreement of the parties are not set forth as periodic alimony and are not due to ter-mínate solely on the remarriage of the [wife]. Specifically, the payments are due to be made ‘so long as the [husband] draws 100 percent disability from the Veterans Administration at least at the current rate.’ The [husband] shall continue said payments and he owes to the [wife] those unpaid sums for the time period in which he did not pay the same.”

The husband filed a post-judgment motion to alter, amend, or vacate the judgment in which he argued, based on the November 10, 2003, agreement, that the $600 monthly payments should have been terminated pursuant to § 30-2-55, Ala.Code 1975. The transcript of the hearing on the husband’s postjudgment motion shows that the trial court based its decision on the December 1, 2003, agreement. On December 20, 2006, the trial court entered an order denying the husband’s postjudgment motion as to the alimony issue.

“Our standard of review when reviewing an appeal from a judgment granting or denying a requested modification of alimony is well settled.
“ ‘An obligation to pay alimony may be modified only upon a showing of a material change in circumstances that has occurred since the trial court’s previous judgment, and the burden is on the party seeking a modification to make this showing....’
“Glover v. Glover, 730 So.2d 218, 220 (Ala.Civ.App.1998) (citation omitted).”
Ederer v. Ederer, 900 So.2d 427, 428 (Ala.Civ.App.2004).
“Where a trial court receives ore ten-us evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong.”

Sellers v. Sellers, 893 So.2d 456, 457-58 (Ala.Civ.App.2004). The ore tenus presumption does not apply to the trial court’s application of law to the facts. See, e.g., Hinds v. Hinds, 887 So.2d 267, 271 (Ala.Civ.App.2003). A trial court’s interpretation of an unambiguous divorce agreement is a legal determination and, thus, does not carry a presumption of correctness. See, e.g., Hinds v. Hinds, 887 So.2d at 271; Hallman v. Hallman, 802 So.2d 1095, 1098 (Ala.Civ.App.2001).

The August 12, 2004, divorce judgment expressly incorporates only the November 10, 2003, agreement. It makes no reference to or acknowledgment of the December 1, 2003, agreement. In divorce cases, the trial court is not bound by the parties’ agreement. See Junkin v. Junkin, 647 So.2d 797, 799 (Ala.Civ.App.1994). “The trial court may adopt or reject such parts of the agreement as it deems proper from the situation of the parties as shown by the evidence.” Id. (emphasis omitted). It is apparent from the language of the divorce judgment that the trial court confirmed only the November 10, 2003, agreement. Therefore, the language of that agreement, and not that of the December 1, 2003, agreement, was incorporated into the divorce judgment and governed the parties’ postdivorce obligations.

Section V of the November 10, 2003, agreement that was ratified by the trial court’s divorce judgment provided for periodic alimony.

“Periodic alimony ... ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ Hager v. Hager, 293 Ala. [47,] 55, 299 So.2d [743,] 750 [ (1974) ]. ... Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30-2-55.”

Daniel v. Daniel, 841 So.2d 1246, 1250 (Ala.Civ.App.2002). Unlike alimony in gross, periodic alimony need not be an amount certain or payable out of the paying spouse’s estate that existed at the time of the divorce. See id.

Section V of the November 10, 2003, agreement established that the husband would pay $600 per month to the wife so long as he received 100 percent disability from the Veterans Administration. Section V expressly contemplated that the payments were to terminate pursuant to § 30-2-55, Ala.Code 1975, upon the wife’s cohabitation or remarriage. Section V did not fix a sum certain and was not necessarily payable from the husband’s estate at the time of the divorce. Additionally, the $600 payments were expressly terminable pursuant to § 30-2-55, Ala.Code 1975. Section V of the November 10, 2003, agreement, which was ratified by the divorce judgment and which provided for periodic alimony, governed the parties’ obligations.

Section 30-2-55, Ala.Code 1975, provides:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

It is undisputed that the wife remarried in October 2005. Consequently, under § 30-2-55, Ala.Code 1975, the husband was entitled to a termination of the alimony payments.

Therefore, we reverse the trial court’s denial of the husband’s petition for modification as to the issue of alimony and remand this cause to the trial court for the entry of an order terminating the husband’s alimony payments to the wife.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . We make no determination regarding the legality or enforceability of this provision.

      . The husband also sought to modify the divorce judgment as to child-support and secondary-education payments for the parties’ children. However, the trial court's judgment as to those matters is not at issue on appeal.


text:
    Earl T. HANKINS and Patricia Richardson v. Cathey CRANE, Steve Tucker, and Cheryl Tucker.
    2060275.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Patrick H. Tate, Fort Payne; and Angela Cochran Morgan, Fort Payne, for appellants.
    Chad A. Hopper of Buttram, Hawkins & Hopper, LLC, Centre, for appellees.
   THOMPSON, Presiding Judge.

This dispute involves three parcels of land located in a subdivision known as Chigger Farms. Earl T. Hankins and Patricia Richardson appeal from a summary judgment entered in favor of Cathey Crane, Steve Tucker, and Cheryl Tucker (“the plaintiffs”); that judgment required Hankins and Richardson to remove a driveway and retaining wall (“the driveway”) that the trial court determined was encroaching on the plaintiffs’ property and a mobile home that the trial court determined violated a subdivision restriction. We affirm in part, reverse in part, and remand.

On August 29, 2005, the plaintiffs filed a complaint in Cherokee Circuit Court against Earl T. Hankins. The complaint stated four counts, only two of which are at issue in this appeal. The first count alleged that the driveway that connected Hankins’s house to a public road wrongfully crossed a lot owned by the plaintiffs, who were the developers of Chigger Farms. The second count alleged that Hankins had placed two mobile homes on another lot in Chigger Farms, lot 4, in violation of a subdivision restriction. The plaintiffs later amended their complaint to add Hankins’s mother, Patricia Richardson, as a defendant. The amended complaint identified Richardson as the true owner of Hankins’s house and of lot 4.

On May 4, 2006, the plaintiffs filed a motion for a summary judgment. Hankins and Richardson filed a response, and the trial judge traveled to Chigger Farms to view the properties. The trial court also heard oral arguments and accepted the evidence submitted by the parties. On August 31, 2006, the trial court granted the plaintiffs’ summary-judgment motion, stating in its order:

“1. The Plaintiffs’ Motion for a Summary Judgment relating to the driveway issue is GRANTED. The evidence is undisputed that the driveway and concrete wall built by the Defendant, Earl T. Hankins, encroaches onto the property of the Plaintiffs. Said encroachment constitutes a trespass, and the trespass is continuing. Defendants shall remove the encroachment within 180 days of the date of this Order.
“2. The Plaintiffs’ Motion for Summary Judgment relating to the issue of two mobile homes on one lot is GRANTED. The plat restrictions state that there shall be ‘only one residence per lot.’ This Court went to the real estate in question and viewed two mobile homes on one lot. One mobile home was being rented by the Defendant, Han-kins, and the other home was vacant. However, the evidence is undisputed that the Defendant allows people to stay in said home 2-3 times per month. Said home was set up with electricity and satellite television. It is this Court’s opinion that said mobile home constitutes a ‘residence’ and that it is a violation of the restrictions of the subdivision for this home to remain on one lot. Defendant shall remove the mobile home within 60 days of the date of this Order.”

Hankins and Richardson filed a post-judgment motion on September 25, 2006. The postjudgment motion was based largely on a newly submitted affidavit from Hankins. Regarding the driveway, Han-kins and Richardson argued for the first time that no alternate means of access to the public road existed and that they would be denied the full use and enjoyment of the house. Regarding lot 4, Han-kins and Richardson argued that one of the mobile homes was occupied two to three times per month only during the spring and fall fishing seasons; thus, they argued that the trial court’s finding that that mobile home was a “residence” was contrary to the evidence. Hankins and Richardson also argued that the trial court had erred in failing to consider certain affirmative defenses they had asserted.

The trial court heard oral argument on the postjudgment motion and, on November 21, 2006, entered an order denying that motion. Hankins and Richardson filed a timely appeal to this court. The case was transferred by this court to our supreme court because this court lacked jurisdiction. The case was subsequently transferred back to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

The record on appeal reveals the following facts. As to the first count, regarding the encroaching driveway, it is undisputed that Richardson owns a house (“the house”) and land located at 410 County Road 351 in Leesburg. The house is occupied by Hankins, Richardson’s son, who was involved in its construction. The land upon which the house sits is adjacent to property known as “lot B8.” The plaintiffs were the developers of Chigger Farms. They jointly own lot B8 and maintain it as a common lot that residents of Chigger Farms use for access to an adjoining lake. Lot B8 apparently lies mostly in a flood plain, and, therefore, its use is heavily restricted.

It is undisputed that the driveway that connects the house to County Road 351 extends beyond Richardson’s land and across lot B8. In or about July 2005, Han-kins and the plaintiffs had independent surveys performed. Both surveys show that the driveway significantly encroaches onto lot B8.

The house and driveway were constructed in 2002, by a building contractor who was one of the developers of Chigger Farms, Kenneth Mackey. At that time, Mackey was married to one of the plaintiffs, Cathey Crane. In 2002, Mackey was a joint owner of lot B8; however, it is apparent that Mackey no longer owns an interest in the property. Mackey and Crane are now divorced, and Mackey has never been a party to this action.

Mackey testified at deposition that he knew the driveway crossed lot B8 when he put it in and that he consented to its placement on lot B8. According to Mackey, a survey performed at the time the house was built confirmed that the driveway encroached on lot B8. This survey was not submitted to the trial court, and the record does not demonstrate whether the plaintiffs or Hankins ever saw it. Mackey testified that the driveway did not interfere with the use of lot B8.

Mackey also testified that one of the plaintiffs, Steve Tucker (“Tucker”), knew that the driveway crossed lot B8 and consented to the placement of the driveway when it was being built. The record on appeal indicates that Tucker denied knowingly consenting to the encroachment. According to Tucker, he thought the driveway was going to be close to lot B8, but he was not certain that it actually crossed onto lot B8 until the survey confirmed the encroachment in July 2005.

Regarding Hankins’s knowledge of the encroachment, Mackey’s testimony conflicted. Mackey first testified that because he was the building contractor for the house, Hankins simply followed his instructions regarding the driveway and did not know that it encroached on lot B8. However, Mackey later testified that he told Hankins that the driveway did in fact encroach on lot B8. According to Hankins’s deposition testimony, he did not have a survey performed before the driveway was installed. He stated that he did not know where the boundary line between his mother’s property and lot B8 was located and that “the driveway was just installed.” According to Hankins’s affidavit that he submitted in response to the plaintiffs’ summary-judgment motion, he discussed the driveway with Mackey, but at the time it was installed he did not know precisely where the boundary line between his mother’s property and lot B8 was located. Hankins stated that he relied on Mackey’s judgment in deciding where to place the driveway. Hankins also stated that the plaintiffs never complained about the encroachment until an unrelated dispute arose between Hankins and Tucker. Until they filed their postjudgment motion, Han-kins and Richardson did not submit evidence showing that no alternate means of access to the house existed and that they would be denied the full use and enjoyment of the house.

As to the second count, regarding the mobile home, it is undisputed that Richardson owns another parcel of land in Chigger Farms known as “lot 4.” It is also undisputed that a restriction recorded on the Chigger Farms subdivision plat and referenced in the deed to lot 4 states that there shall be only one residence per lot.

Hankins has placed two mobile homes on lot 4. Hankins lived in one mobile home while the house at 410 County Road 351 was being constructed. After the house was completed, Hankins began renting that mobile home to another family. The second mobile home was placed on lot 4 in 2000. Hankins testified that he obtained permission from Mackey and Tucker before he purchased the second mobile home and placed it on lot 4.

According to Hankins, the second mobile home was used primarily for storage and as a place for his friends to stay when they came to visit him and fish in the nearby lake. Hankins stated in his affidavit that the second mobile home was only used by his friends two to three times each month during the spring and fall fishing seasons.

At the summary-judgment hearing, the trial judge stated that when he viewed the properties, he observed that the second mobile home had electricity and satellite television. Additionally, it was undisputed at the hearing that the second mobile home had hot water, a bathroom, beds, chairs, and a table. It did not, however, have a working stove. Hankins testified that he did not consider the second mobile home a “residence” within the meaning of the restriction “because nobody stays in it.” During his deposition, Hankins testified as follows:

“[COUNSEL FOR THE PLAINTIFFS:] It’s capable of being a residence, is it not?
“[HANKINS:] If I wanted to rent it to somebody, I probably could fix it up and rent it, but that’s not the case.”

The plaintiffs filed ‘“a motion for an offensive summary judgment, that is, one on behalf of the plaintiffs]’ on [their] own claim.” Ex parte Ramsay, 829 So.2d 146, 152 (Ala.2002) (quoting Ramsay v. Grove Hill Mem’l Hosp. Auxiliary, 829 So.2d 142, 145 (Ala.Civ.App.2000)).

“A motion for a summary judgment is properly granted where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). ‘When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact.’ Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (citing Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). ‘Substantial evidence’ is ‘evidence of such a weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1073-74 (Ala.Civ.App.2005). “In the present case, the plaintiffs] asked for and [were] granted a summary judgment. On a motion for an offensive summary judgment, that is, one on behalf of the plaintiffs], the plaintiffs] must conclusively prove every element of [their] claim.” Ramsay v. Grove Hill Mem’l Hosp. Auxiliary, 829 So.2d at 145.

Regarding the first count, the trial court entered a summary judgment in favor of the plaintiffs, finding that the encroachment was a trespass and that the trespass was continuing. “Trespass is both a legal action and an equitable action.” Storey v. Patterson, 437 So.2d 491, 493 (Ala.1983). Our supreme court has defined “trespass” as “ ‘[a]ny entry on the land of another without express or implied authority.” Central Parking Sys. of Alabama, Inc. v. Steen, 707 So.2d 226, 228 (Ala.1997) (quoting Foust v. Kinney, 202 Ala. 392, 393, 80 So. 474, 475 (1918)) (emphasis added). This court has stated that a “structure maintained on another’s property is a continuing trespass.” Alabama Power Co. v. Gielle, 373 So.2d 851, 854 (Ala.Civ.App.1979).

It is undisputed that the plaintiffs own lot B8 and that the driveway significantly encroaches onto lot B8. As such, it interferes with the plaintiffs’ possessory interest in that part of lot B8 over which it encroaches. Therefore, if the encroachment was not expressly or impliedly authorized, the plaintiffs are entitled to a judgment as a matter of law on their trespass claim.

Hankins and Richardson argue on appeal that genuine issues of material fact exist as to whether Tucker was present when the driveway was installed and whether he was aware of the encroachment but never objected to it. This argument adequately challenges the sufficiency of the plaintiffs’ prima facie evidence that the encroachment was not expressly or impliedly authorized. The record on appeal shows that Mackey, who was a joint owner of lot B8 at the time the driveway was installed, consented to the placement of the driveway on lot B8. Mackey also testified that Tucker knew that the driveway encroached on lot B8 and consented to its placement. Tucker, however, asserted that he had no knowledge of the encroachment until it was confirmed by a survey in July 2005. This conflicting evidence creates a genuine issue of material fact as to whether the owners of lot B8 authorized the placement of the driveway.

The plaintiffs, therefore, have not conclusively proven every element of their trespass claim. Accordingly, we must reverse the trial court’s summary judgment as to that claim. This decision pretermits our need to discuss the issues Hankins and Richardson raise regarding their affirmative defenses of equitable estoppel and laches, as well as their argument, made for the first time on appeal, that they had an easement by necessity across lot B8.

Regarding the second count, the trial court entered a summary judgment for the plaintiffs, finding that both mobile homes on lot 4 were “residences” within the meaning of the Chigger Farms restriction and that the plaintiffs were entitled to equitable relief. It is undisputed that a restriction recorded on the Chigger Farms subdivision plat states that there shall be no more than one residence per lot. It is also undisputed that one of the mobile homes on lot 4 is a residence within the meaning of the restriction.

Hankins and Richardson argue on appeal that the restriction is unenforceable because the term “residence” is ambiguous and vague. They correctly note the following rules:

“ ‘[Restrictive covenants are not favored in the law and will therefore be strictly construed by [the] Court. All doubts must be resolved against the restriction and in favor of free and unrestricted use of the property.’ Lange v. Scofield, 567 So.2d 1299, 1301 (Ala.1990). ‘Only if the intent of the covenant is clear and unambiguous will it be given effect.’ Johnson v. Bryant, 350 So.2d 433, 437 (Ala.1977).”

Grey stone Ridge Homeowners’ Ass’n, Inc. v. Shelton, 723 So.2d 88, 89 (Ala.Civ.App.1998).

The only argument that Hankins and Richardson make regarding the alleged ambiguity is that the plaintiffs did not define the term “residence” when drafting the plat restriction. They have not shown on appeal that the restriction, on its face, is patently ambiguous — i.e., that it is unclear or suggests multiple meanings — or that it is latently ambiguous — i.e., that “some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Thomas v. Principal Fin. Group, 566 So.2d 735, 739 (Ala.1990). We do not believe that the mere fact that a term is not expressly defined renders it vague or ambiguous, and Hankins and Richardson have not cited any authority that supports such a proposition. Accordingly, we will not reverse the trial court’s judgment on the basis that the term “residence” in the restriction is ambiguous.

Hankins and Richardson next argue that genuine issues of material fact exist regarding whether the second mobile home is, in fact, a residence. Hankins and Richardson base their argument on a definition of the term “residence” taken from Black’s Law Dictionary 1308-09 (6th ed.1990). That edition of Black’s, however, takes its definition from decisions of courts outside this jurisdiction that analyze the term in the context of specific issues such as venue, insurance coverage, and statutory interpretation. Those cases, and consequently the definition in Black’s, are concerned primarily with locating the place where an individual lives or is domiciled. Id. Based on that definition of a “residence” as a “[pjlace where one actually lives,” Black’s Law Dictionary, supra, Hankins and Richardson argue that the second mobile home was not a residence because no one actually lived there. They rely on Hankins’s testimony that the second mobile home was primarily used for storage and that it was only occupied two to three times each month during the spring and fall fishing seasons.

However, the question of where an individual lives or is domiciled does not accurately define the question at issue in this case. The pertinent question is whether a particular structure is a place in which people may reside, not where an individual’s dwelling place lies. In Wisneiwski v. Starr, 393 So.2d 488, 489 (Ala.1980), our supreme court analyzed a case in which the appellant had placed two mobile homes on a lot that was subject to the following restriction: “ ‘there can be placed on said parcel of land no more than one residence or one mobile home....’” (Emphasis omitted.) The supreme court noted:

“The structure, while not presently being used as a dwelling, is capable of such utilization. It has wheels, a tongue and running gear, and was manufactured with a floor plan for dwelling purposes which it presently retains. A dining room suite was placed therein and has not been removed.”

Id. The appellant argued that the restriction was vague and ambiguous and that the “language [was] susceptible of the meaning that the structure in question [was] something other than a ‘mobile home’ when it [was] unoccupied.” Id. The supreme court rejected that argument. It reasoned:

“ ‘ “... While such provisions in deeds are not construed to create restrictions beyond the fair and natural meaning of the words used, read in the light of the circumstances under which they were used, they will be enforced according to their fair and natural meaning, in the absence of fraud or mutual mistake....’”
“Laney v. Early, [292 Ala. 227,] 231, 292 So.2d 103 [ (1974) (quoting Centers, Inc. v. Gilliland, 285 Ala. 593, 595, 234 So.2d 883, 885 (1970)) ].
“Covenants restraining the use of real property are strictly construed in favor of the free use of such property; but effect will be given to the manifest intention of the parties when the intention is clear and the restrictions are confined to a lawful purpose within reasonable bounds, and rights created by the covenant have not been relinquished or otherwise lost. Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915 (1966).
“Here, no fraud or mutual mistake is claimed. We hold, therefore, that the term ‘mobile home’ is descriptive of the structure in question as found by the trial court.”

Id.

Similarly to the appellant in Wis-neiwski, Hankins and Richardson argue that the second mobile home is something other than a residence when it is unoccupied. We disagree. No fraud or mutual mistake is claimed, and, as stated above, there has been no showing of vagueness or ambiguity. Although Hankins testified that the second mobile home was used primarily for storage, he also testified that it could easily be turned into a long-term residence. Indeed, it is undisputed that the second mobile home is, at the very least, suitable for use as a weekend dwelling. Neither party disputed that the second mobile home had bathroom facilities, hot water, electricity, beds, chairs, and a table. Furthermore, as the trial court noted, beyond the basic utilities and furniture, the second mobile home has satellite-television service. Based on that evidence, the trial court did not err in determining, as a matter of law, that the second mobile home was a residence within the meaning of the restriction and that the plaintiffs had satisfied their prima facie burden.

Because the plaintiffs satisfied their prima facie burden, the burden shifted to Hankins and Richardson “to create a genuine issue of material fact by establishing [their] ... affirmative defense[s], including all of [the] essential elements” of those affirmative defenses. Ex parte Ramsay, 829 So.2d at 153. They raise three arguments on appeal regarding their affirmative defenses. In violation of Rule 28(a)(10), Ala. R.App. P., Hankins and Richardson’s brief does not cite any authority in support of their arguments regarding their affirmative defenses. • However, out of an abundance of caution, we will consider their arguments below.

First, Hankins and Richardson argue that the plaintiffs’ claim is barred by the doctrine of equitable estoppel.

“In order for the doctrine of equitable estoppel to apply, a party must demonstrate:
“ ‘ “(1) That ‘[t]he person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on’;
“ ‘ “(2) That ‘the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon [the] communication’; and
“ ‘ “(3) That ‘the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct.’ ”
‘Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 64 (Ala.1996), quoting General Electric Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So.2d 1240, 1243 (Ala.1983).’
“Allen v. Bennett, 823 So.2d 679, 685 (Ala.2001).”

BSI Rentals, Inc. v. Wendt, 893 So.2d 1184, 1187-88 (Ala.Civ.App.2004).

“Estoppel ... requires activity both by the plaintiff and by the defendant. The plaintiff must have acted so as to evidence an intent not to enforce his rights under the restrictive covenant and the defendant must have acted in reliance upon plaintiffs conduct so as to make it inequitable for the plaintiff to assert his rights.”

Tubbs v. Brandon, 374 So.2d 1358, 1361 (Ala.1979).

Hankins and Richardson have presented evidence to support the first two elements of equitable estoppel. Hankins testified that he obtained permission from Mackey and Tucker before he purchased the second mobile home and placed it on lot 4. Based on that evidence, Hankins and Richardson effectively argue that the plaintiffs acted with an intent not to enforce their rights under the restrictive covenant. Hankins and Richardson also presented evidence indicating that Hankins acted in reliance on Mackey and Tucker’s alleged conduct by purchasing the second mobile home and placing it on lot 4.

Hankins and Richardson, however, did not present any evidence to support the third element of equitable estoppel. Regarding the inequity resulting from the plaintiffs’ actions, they argue, without citing any evidence, that removing the mobile home “would cause harm to Hankins by placing an additional and unnecessary expense upon him that would have been avoided .... ” We have searched the record and cannot find any testimony or other evidence to support that statement. Indeed, there is no evidence in the record showing that Hankins and Richardson will be materially harmed. Hankins and Richardson’s equitable-estoppel defense therefore fails because they have not presented any evidence of harm resulting from the plaintiffs’ actions.

Second, Hankins and Richardson argue that the plaintiffs’ claim is barred by the doctrine of laches.

“To establish the application of the doctrine of laches, [Hankins and Richardson] had to show that [the plaintiffs] delayed in asserting [their] right or claim, that [the] delay was unexcusable, and that [their] delay caused [Hankins and Richardson] undue prejudice. Citibank, N.A. v. Citibanc Group, Inc., 724 F.2d 1540 (11th Cir.1984); Equal Employment Opportunity Commission v. Dresser Industries, Inc., [668 F.2d 1199 (11th Cir.1982) ]. Classic elements of undue prejudice, for purposes of determining the applicability of the doctrine of laches, include the unavailability of witnesses, changed personnel, and the loss of pertinent records. Equal Employment Opportunity Commission v. Dresser Industries, Inc., supra. To bring the doctrine of laches into operation, it is not necessary that the court should be convinced that the original claim was unjust or had been satisfied, but it is sufficient if the court believes that, under the circumstances, it is too late to ascertain the merits of the controversy. Meeks v. Meeks, 251 Ala. 435, 37 So.2d 914 (1948).”

Ex parte Grubbs, 542 So.2d 927, 929 (Ala.1989) (emphasis added; emphasis omitted).

As noted above, Hankins and Richardson have not presented any evidence showing harm as a result of the plaintiffs’ actions. They do argue that Hankins would not have purchased the second mobile home had Tucker denied his permission when Hankins asked. Even if this statement is sufficient to show undue prejudice, Hankins and Richardson have not made any showing that it is too late to ascertain the merits of this controversy. Accordingly, their laches defense also fails.

Finally, as to Crane, Hankins and Richardson argue that the claim is barred by the doctrine of unclean hands. Our supreme court has stated:

“[O]ne ‘who seek[s] equity must do equity’ and ‘one that comes into equity must come with clean hands.’ Levine v. Levine, 262 Ala. 491, 494, 80 So.2d 235, 237 (1955). The purpose of the clean hands doctrine is to prevent a party from asserting his, her, or its rights under the law when that party’s own wrongful conduct renders the assertion of such legal rights ‘contrary to equity and good conscience.’ Draughon v. General Fin. Credit Corp., 362 So.2d 880, 884 (Ala.1978).”

J & M Bail Bonding Co. v. Hayes, 748 So.2d 198, 199 (Ala.1999). According to Hankins and Richardson, Crane, who owns a house in Chigger Farms, rented part of her house to third parties during the fishing season and, therefore, violated a Chigger Farms plat restriction that prohibits the use of lots for commercial purposes. The limited evidence presented to us in the record, however, does not actually show that such a restriction exists. Accordingly, this defense also fails.

Therefore, as to the plaintiffs’ claim related to lot B8, we reverse the trial court’s summary judgment and remand the cause for further proceedings consistent with this opinion. As to the plaintiffs’ claim related to lot 4, because the plaintiffs satisfied their prima facie burden and because Hankins and Richardson have failed to present sufficient evidence raising genuine issues of material fact as to each element of their affirmative defenses, we affirm the trial court’s summary judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The third count was dismissed. The fourth count, as well as a fifth count that the plaintiffs added in their amended complaint, were asserted exclusively against another party with whom the plaintiffs have settled.

      . Although some of the evidence the parties relied on was inadmissible, we note that neither party objected to the admissibility of the evidence that the trial court considered in making its determination. Therefore, all such objections are waived. See, e.g., Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 314 (Ala.2001) (“[A] party's failure to object to a potentially defective affidavit offered in support of a motion for summary judgment waives the issue on appeal.”). Accordingly, we will consider the evidence regardless of whether it was properly presented to the trial court.

      . See Black's Law Dictionary 1308-09 (6th ed.1990) (citing, e.g., Perez v. Health & Soc. Servs., 91 N.M. 334, 573 P.2d 689, 692 (Ct.App.1977); T.P. Labs., Inc. v. Huge, 197 F.Supp. 860, 865 (D.Md.1961); and Willenbrock v. Rogers, 255 F.2d 236, 237 (3d Cir.1958)).

      . This case illustrates the truth of our supreme court's statement in Hoffman v. Tacon, 293 Ala. 684, 686, 309 So.2d 817, 818 (1975): “Recourse to dictionary definitions or to decisions of other courts, generally, serves no useful purpose when, from a reading of the restrictions, it is apparent what was intended.”


text:
    Eileen THOMPSON v. COLSA CORPORATION.
    2060266.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Danny D. Henderson, Huntsville, for appellant.
    William L. Middleton and Carl A. Cole III of Eyster, Key, Tubb, Roth, Middleton & Adams, LLP, Decatur, for appellee.
   THOMPSON, Presiding Judge.

Eileen Thompson appeals the trial court’s judgment approving a workers’ compensation settlement agreement reached by Thompson and Colsa Corporation (“Colsa”). We reverse and remand with instructions.

Thompson was an employee of Colsa when, on July 12, 2002, she suffered an on-the-job injury to her neck. After negotiations, the parties, on June 18, 2004, filed a joint petition for approval of a settlement agreement reached by the parties (“the first settlement agreement”). The first settlement agreement stated that Colsa had paid Thompson $36,477.90 in medical benefits and $9,430.70 for 26 weeks of temporary-total-disability benefits and further provided that Colsa would pay Thompson an additional $12,252.03 in satisfaction of any workers’ compensation claim that she might have against Colsa, including claims for vocational-rehabilitation benefits and disability-compensation benefits. That agreement left open the issue whether Thompson could recover future medical benefits.

Attached to the petition for approval of the first settlement agreement was a medical report prepared by Keith C. Anderson, D.O., who had examined Thompson. Dr. Anderson stated in his report that Thompson had ruptured the disk between her “C5” and “C6” vertebrae in her neck and had undergone surgery to fuse the vertebrae. Dr. Anderson further stated that Thompson had reached maximum medical improvement (“MMI”) for her injury and that she had suffered a “15% impairment of the whole person” as a result of her injury.

On May 5, 2005, before the trial court had ruled on the June 18, 2004, petition, Thompson filed a motion to dismiss the petition. Thompson explained that, although she had initially assented to the first settlement agreement, after the parties had filed their joint petition for approval of the agreement, she had changed her mind. On May 18, 2005, the trial court granted Thompson’s motion to dismiss the June 18, 2004, petition.

On June 21, 2005, the trial court, at Thompson’s request, set aside its dismissal of the June 18, 2004, petition and restored the case to active status. On August 12, 2005, Thompson filed a complaint for workers’ compensation benefits in which she claimed that she had been advised that further surgery would be necessary to correct her injury and requested benefits pursuant to the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975. She also claimed that because further surgery would be necessary, she had not yet reached MMI. Colsa answered Thompson’s complaint on August 17, 2005.

On May 30, 2006, the date set for the trial of Thompson’s workers’ compensation claim, the parties announced in open court that they had reached a second settlement agreement (“the second settlement agreement”). Pursuant to the second settlement agreement, Colsa agreed to pay Thompson $15,000 in satisfaction of all disability-compensation benefits, while leaving open the issues of future vocational-rehabilitation benefits and future medical benefits. The trial court discussed with Thompson the ramifications of her decision to settle, and Thompson confirmed her consent to the second settlement agreement.

On September 1, 2006, Colsa filed a motion with the trial court requesting that it “enforce” the second settlement agreement. At that time, the trial court had not yet entered a judgment approving the second settlement agreement. Colsa explained that Thompson had notified it that she no longer wished to proceed with the second settlement agreement. Colsa requested that the trial court enforce the second settlement agreement because the parties had both affirmed the settlement agreement in open court. Thompson responded to Colsa’s motion to enforce the second settlement agreement on September 8, 2006. Thompson claimed that her on-the-job injury had worsened and that she would require additional surgery. As a result, Thompson requested that the trial court set aside the second settlement agreement.

Thompson attached to her response filed on September 8, 2006, a medical report prepared by Thomas J. O’Brien, M.D. In his report, Dr. O’Brien stated that Thompson’s condition had worsened due to “more rapid degeneration of the disks above and below the site of the injury which occurred on [July 12, 2002].” Dr. O’Brien stated that, in his opinion, the degeneration had been caused by aging, by Thompson’s “tobacco abuse,” and by the first surgery to correct her on-the-job injury. Dr. O’Brien explained that Thompson would require additional surgery.

On November 14, 2006, the trial court entered a judgment approving the second settlement agreement. Thompson timely appealed to this court.

Although Thompson makes several arguments on appeal, we address only one of those arguments because we find it to be dispositive of the appeal. Thompson argues that the trial court erred by not setting aside the second settlement agreement after she filed her September 8, 2006, response to Colsa’s motion to “enforce” the second settlement agreement.

Section 25-5-83, Ala.Code 1975, explicitly limits the enforcement of workers’ compensation settlements that, like the settlement in this case, provide for workers’ compensation benefits to be paid in a lump sum. Section 25-5-83 provides:

“By agreement of the parties and with approval of the court, the amounts of compensation payable periodically, under this article and Article 4 of this chapter, may be commuted to one or more lump sum payments. No commutation shall be approved by the court unless the court is satisfied that it is in the best interest of the employee or the employee’s dependent, in case of death, to receive the compensation in a lump sum rather than in periodic payments.”

(Emphasis added.)

As § 25-5-83 indicates, a settlement reached by the parties that deviates from the Workers’ Compensation Act by providing for a lump-sum payment cannot be enforced until the trial court approves it.

“Furthermore, ‘the better practice is for the trial judge to make a specific finding on the record that the settlement is in the employee’s best interest,’ and, ‘[i]f the trial judge does not specifically make such a finding, then the record must affirmatively show that the settlement is in the employee’s best interest.’ Shaw [v. Dover Furniture Mfg. Co.], 700 So.2d [1382,] 1385 [ (Ala.Civ.App.1997) ].”

Ex parte Ford, 782 So.2d 185, 187 (Ala.2000).

In this case, the trial court made no specific finding that the settlement Thompson reached with Colsa was in her best interest. Therefore, we must determine whether the record affirmatively shows that approval of the second settlement agreement was in Thompson’s best interest. Id. Before the trial court approved the second settlement agreement, Thompson submitted to the trial court the report of Dr. O’Brien indicating that Thompson would require additional surgery to remedy further degeneration in her neck that had occurred after the initial surgery that had been intended to correct her on-the-job injury. Though Dr. O’Brien’s report does not specifically state that Thompson had not reached MMI, such a conclusion is plausible from a reading of the report. As this court has explained, “[t]he date of MMI indicates the date on which the claimant has reached such a plateau that there is no further medical care or treatment that could be reasonably anticipated to lessen the claimant’s disability.” G.U.B.MK. Constructors v. Traffanstedt, 726 So.2d 704, 709 (Ala.Civ.App.1998). Dr. O’Brien’s report indicated not only that Thompson would require additional treatment to lessen her disability, but also that her disability could be worsening. Therefore, Dr. O’Brien’s report indicated that Thompson had not yet reached MMI.

Dr. O’Brien’s report was written after the parties had negotiated their second settlement agreement and well after Dr. Anderson’s initial report in which he stated that Thompson had reached MMI. As our supreme court has stated, “before a trial court can make a determination that an employee is permanently (and either partially or totally) disabled under the Alabama Workers’ Compensation Act, the employee must have reached MMI.” Ex parte Phenix Rental Ctr., 873 So.2d 226, 233 (Ala.2003). This court has applied the above rule to cases involving settlements subject to court approval. See Edward Wiggins Logging Co. v. Wiggins, 603 So.2d 1094, 1095 (Ala.Civ.App.1992).

We recognize that the trial court had before it Dr. Anderson’s report, submitted when the parties sought approval of the first settlement agreement, in which he stated that Thompson had reached MMI and that the trial court questioned Thompson regarding her rights under the Workers’ Compensation Act and her consent to the second settlement agreement. We also recognize that granting Thompson’s requested relief would allow her, for the second time, to back out of a settlement reached in good faith by the parties and would create more delay in what has already been protracted litigation. However, as our supreme court has explained, we must be “ ![e]ver mindful of ... the well-established law that the “Alabama [Workers’] Compensation Act” is to be construed liberally to effect its beneficent purposes, [and] we [must] resolve all reasonable doubts in favor of the claimant.’ ” Cumbie v. L & A Contracting Co., 739 So.2d 1099, 1103 (Ala.1999)(quoting Moore v. Reeves, 589 So.2d 173, 177 (Ala.1991)). Therefore, in light of the new evidence that Thompson submitted to the trial court indicating that Dr. Anderson’s MMI assessment may have been premature, we cannot hold that the record, without the trial court explicitly finding such, affirmatively shows that it is in Thompson’s best interest to have the second settlement agreement approved. Accordingly, because the trial court did not make an explicit finding that the second settlement agreement was in Thompson’s best interest, and because the record does not affirmatively show that the settlement is in her best interest, we reverse the trial court’s judgment and remand the case for the trial court to hold a hearing to determine whether Thompson has reached MMI and whether its approval of the second settlement agreement is in her best interest.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . We note that Thompson has not raised the issue whether, under § 25-5-56, Ala.Code 1975, the second settlement agreement entered into by Thompson and Colsa, which was an oral agreement, was unenforceable because it had not been reduced to a writing signed by the parties. Section 25-5-56 provides, in part:
      "No settlement for an amount less than the amounts or benefits stipulated in this article shall be valid for any purpose, unless a judge of the court where the claim for compensation under this chapter is entitled to be made, or upon the written consent of the parties, a judge of the court determines that it is for the best interest of the employee or the employee's dependent to accept a lesser sum and approves the settlement.”
      (Emphasis added.) Though § 25-5-56 can be read to indicate that the parties must give their written consent to a settlement for an amount less than the amount provided by the Workers' Compensation Act before that settlement may be approved by the court, we decline to address the applicability of § 25-5-56 to the second settlement agreement because Thompson did not raise that issue before the trial court or on appeal. See Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003)(holding that an .appellate court may not review an issue on appeal that was not first presented to the trial court).