author: PER CURIAM. MURDOCK, Justice WOODALL, Justice

text:
    Ex parte Elizabeth Roper CARTER et al. (In re Elizabeth Roper Carter et al. v. Colonial Bank, N.A., et al.).
    1091196.
    Supreme Court of Alabama.
    Dec. 30, 2010.

      Richard F. Ogle, Richard E. Smith, Deborah Alley Smith, Maxwell H. Pulliam, Oscar M. Price, and Abbott M. Jones of Christian & Small LLP, Birmingham, for petitioners.
    Patrick L.W. Sefton of Sasser, Sefton, Tipton <& Davis, P.C., Montgomery, for respondent Branch Banking & Trust Company.
    Richard J.R. Raleigh, Jr., of Wilmer & Lee, P.A., Hunstville, for respondents Colleen Misfeldt, Susan Compton, Kim Russell, Phyllis Byers, John McMullen, and Paula Renfroe.

       Retired Associate Justice Robert Bernard Har-wood, Jr., .was appointed November 30, 2010, to be a Special Justice in regard to this petition.

   PER CURIAM.

Elizabeth Roper Carter, John Randolph Roper, and the Estate of Frances Elizabeth Parham Roper (“the estate”), the plaintiffs in an action pending in the Madison Circuit Court (hereinafter referred to collectively as “the plaintiffs”), petition this Court for a writ of mandamus directing the circuit court to vacate an order striking their demand for a jury trial. We deny the petition in part, grant it in part, and issue the writ.

Fachial Background and Procedural History

The plaintiffs allege the following facts. Frances Elizabeth Parham Roper died on September 21, 2007. Elizabeth Roper Carter and John Randolph Roper are her niece and nephew and primary heirs. Oii the date of her death, the estate held 765,092 shares of Colonial Bank stock valued at $23.01 per share or approximately $17,604,767. After Roper died, the value of the Colonial Bank stock began to decline. On June 13, 2008, the plaintiffs, in order to pay the estate’s tax liability, executed a promissory note with Colonial Bank in the amount of $6,000,000.

The plaintiffs allege that before executing the promissory note they expressed concerns to various Colonial Bank employees regarding the financial security of the bank. According to the plaintiffs, those employees assured them that the bank stock was going to increase in value; that the bank was financially sound; that, even if the bank’s stock reached a value of zero, the bank would remain solvent; and that financially Colonial Bank was in a better position than other banks. The plaintiffs stated that, based on those representations, they executed the promissory note and related documents, including an “Unconditional Guaranty of Specific Debts” (hereinafter “the guaranty”), a “Real Estate Mortgage and Security Agreement” (hereinafter “the mortgage agreement”), and a “Term Loan Agreement” (hereinafter “the loan agreement”).

All four documents (collectively, “the loan documents”) contain provisions whereby the parties executing the documents waived their rights to a jury trial should a dispute arise between them. The jury-waiver provisions in each of the loan documents are similar but designate the parties differently. The promissory note provides: “Maker hereby waives the right to any jury trial in any action, proceeding, or counterclaim brought by either Note Holder or Maker against the other.” The promissory note defines “Maker” as Carter in her capacity as personal representative of the estate. The promissory note defines “Note Holder” as Colonial Bank and its successors and assigns.

The guaranty provides: “Bank and Guarantors hereby waive the right to any jury trial in any action, proceeding or counterclaim brought by either Bank or Borrower against the other.” The guaranty defines “Bank” as Colonial Bank and defines “Guarantor” as Carter. However, the guaranty does not define the term “Borrower.” The guaranty separately provides that Carter, as guarantor, agrees “to indemnify Bank and its officers, directors, agents and attorneys” against certain claims.

The mortgage agreement provides: “All parties to this Mortgage hereby waive the right to any jury trial in any action, proceeding or counterclaim brought by any party against any other party.” Carter, individually and on behalf of the estate, and John Randolph Roper executed the mortgage agreement, granting Colonial Bank and its successors and assigns a security interest in certain real property.

The loan agreement provides: “Bank, Borrower, Accommodation Party and each Guarantor hereby waive the right to any jury trial in any action, proceeding or counterclaim brought by either Bank, Borrower, Accommodation Party or Guarantors against the other.” The loan agreement defined “Borrower” as Carter in her capacity as personal representative of the estate; “Bank” as Colonial Bank; “Guarantors” as Carter and John Randolph Roper; and “Accommodation Party” as the “Frances Roper Corporation.” The loan agreement also provides: “This agreement shall bind and inure to the benefit of Borrower and Bank, and their respective successors and assigns.” In the section immediately preceding the jury-waiver provision, the loan agreement states: “Borrower shall indemnify and hold Bank and its directors, officers, agents, employees and attorneys (collectively, the ‘Lender Parties’) harmless of and from all liability, loss, expense or damage of any kind or nature.... ”

By October 2008, the price of Colonial Bank stock had fallen to $3.25 a share. The plaintiffs allege that certain of Colonial Bank’s employees continued to assure them that the bank was financially secure. On August 11, 2009, the value of Colonial Bank stock had fallen to $.50 a share. On August 14, 2009, the Alabama State Banking Department closed Colonial Bank and appointed the Federal Deposit Insurance Corporation (“the FDIC”) as its receiver. The FDIC subsequently assigned all promissory notes and mortgages held by Colonial Bank to Branch Banking and Trust Company (“BB & T”). The plaintiffs ultimately sold the estate’s stock in Colonial Bank for approximately $.08 a share.

The plaintiffs sued Colonial Bank; BB & T; Colonial Bank’s former chief executive officer (“CEO”), Robert E. Lowder; and Colonial Bank’s former employees Colleen Misfeldt, Susan Compton, Kim Russell, Phyllis Byers, John McMullen, and Paula Renfroe. The plaintiffs alleged several causes of action, including fraudulent misrepresentation, deceit, suppression, conversion, breach of fiduciary duty, unjust enrichment, negligence, wantonness, and breach of contract. The plaintiffs alleged that the defendants had misrepresented Colonial Bank’s future prospects, causing them to execute the loan documents and, ultimately, to retain the Colonial Bank stock held by the estate through Colonial Bank’s financial demise. The defendants moved to strike the plaintiffs’ jury demand, citing the above-quoted jury-waiver provisions. On April 30, 2010, after a hearing, the trial court entered an order concluding that the waiver provisions were “sufficiently broad to apply to all defendants and all claims asserted by the plaintiffs” and granting the defendants’ motion to strike the jury demand. The plaintiffs subsequently petitioned this Court for a writ of mandamus directing the trial court to vacate its April, 30, 2010, order striking their jury demand.

Standard of Review

“A writ of mandamus will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000). This Court has stated: “A petition for a writ of mandamus is the appropriate vehicle for seeking review by this Court of a denial of a demand for a jury trial.” Ex parte Atlantis Dev. Co., 897 So.2d 1022, 1024 (Ala.2004). In Atlantis Development, this Court explained: “Because mandamus is an extraordinary remedy, the standard of review on a petition for a writ of mandamus is whether there is a clear showing of error on the part of the trial court.” Id.

Analysis

I. Colonial Bank and BB & T

The plaintiffs explicitly concede in their submissions to this Court that the jury-waiver provisions in the loan documents are fully enforceable as to Colonial Bank and BB & T. In their mandamus petition, the plaintiffs state that the issue presented is whether the trial court erred “in striking the plaintiffs’ jury demand with respect to claims asserted against defendants who were not parties to the agreements containing the jury waiver provision.” (Petition, at 5.) The plaintiffs then acknowledge that the waivers would be fully effective as between them and Colonial Bank, stating: “A plain reading of the waivers reveals that they are limited to claims between the plaintiffs and Defendant Colonial Bank....” (Petition, at 6.) They then state in a footnote: “Colonial Bank did not move to strike the jury demand. Thus, whether the trial court should strike the jury demand as to Colonial Bank was not a question before the trial court and is not a question now before this Court.” (Petition, at 6 n. 2.) However, the trial court’s April 30, 2010, order seemingly struck the plaintiffs’ jury demand as to all defendants.

In their reply brief, the plaintiffs appear to recognize the broad reach of the April 30, 2010, order and assert that the trial court erred “by striking the plaintiffs’ jury demand as to all of the defendants” and that “the jury demand should not have been stricken as to all defendants in this case.” (Reply brief, at 2, 5.) Having already conceded in their mandamus petition that the jury waiver was textually applicable to Colonial Bank, the plaintiffs went further in their reply brief, stating: “The petitioners concede, subject to the fraudulent inducement argument in Section II infra, that as assignee, BB & T may enforce the jury waiver provisions contained in the contracts that have been assigned BB & T following the collapse of Colonial Bank.” (Reply brief, at 7 n. 1.) Thus, subject only “to the [plaintiffs’] fraudulent inducement argument,” the plaintiffs fully acknowledge and concede the propriety of the striking of their jury demand with respect to their claims against Colonial Bank and BB & T. “Such an explicit admission in a brief is binding on the party making it.” Ford v. Carylon Corp., 937 So.2d 491, 502 (Ala.2006).

As to the plaintiffs’ “fraudulent inducement argument,” they contend in their mandamus petition that “the jury waivers are void, even as they relate to Colonial Bank, because the plaintiffs were induced to execute the [loan documents] by fraud.” (Petition, at 25.) The plaintiffs expand that statement in their reply brief after conceding that BB & T may enforce the jury-waiver provisions to the same extent as Colonial Bank, asserting that those provisions “are void and unenforceable, even as they relate to Defendants Colonial Bank and BB & T,” based on fraud in the inducement. (Reply brief, at 11.) The argument the plaintiffs present in their mandamus petition regarding fraudulent inducement consists of only 16 lines of text and appears to proceed on the theory that the plaintiffs would have the right to rescind the loan documents because they allegedly were fraudulently induced to enter into them. (Petition, at 25.) Before the trial court, in their response to the defendants’ motion to strike the jury demand, the plaintiffs framed the argument as follows: “The Plaintiffs allege that they were fraudulently induced to enter into all the relevant agreements and that they are entitled to rescission of those agreements. Accordingly, the jury waivers contained within those agreements cannot be entered [into evidence] by Colonial Bank to defeat the plaintiffs’ constitutional right to a trial by jury.” (Emphasis added.) The plaintiffs attach to their mandamus petition their second amended complaint as the version of the complaint on which they rely. The second amended complaint contains nine counts, eight of which seek only money damages and the last of which seeks injunctive relief; none of the claims request as relief any form of rescission of any of the loan documents. Consequently, with respect to the plaintiffs’ fraudulent-inducement argument as specifically articulated by them in the trial court, the plaintiffs have not shown that they have a clear legal right to have set aside the trial court’s order striking the jury demand as to Colonial Bank and BB & T.

II. The Individual Defendants

As to the remaining individual defendants, Colonial Bank’s former employees (hereinafter referred to collectively as “the individual defendants”), the plaintiffs contend that the waiver provisions are not broad enough to apply to them. The plaintiffs argue that, although jury-waiver provisions are enforceable, Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So.3d 1198, 1200-01 (Ala.2010), they must be strictly construed. They reason that, under a strict construction, the waiver provisions in the loan documents extend only to the plaintiffs’ claims against those parties identified by the waiver provisions. Because the waiver provisions, as defined in the loan documents, referenced only Colonial Bank and not its employees, the plaintiffs contend that the waiver provisions are not broad enough to encompass their claims against the individual defendants. We agree.

Alabama Const. 1901, Art. I, § 11, provides: “[T]he right of trial by jury shall remain inviolate.” Similarly, Rule 38(a), Ala. R. Civ. P., provides: “The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate.” In Ex parte Cupps, 782 So.2d 772 (Ala.2000), in determining whether a defendant’s tort-based counterclaims “arose under” a contract within the meaning of a jury-waiver provision, this Court stated: “In cases, such as this case, that involve contractual waivers, we give the text of the waiver a narrow and strict construction, in deference to the constitutional guarantee of the right to a jury trial.” 782 So.2d at 775.

Although the jury-waiver provisions state that the plaintiffs waived the right to a jury trial in “any action,” the waiver provisions limit such actions to those brought by either the plaintiffs or Colonial Bank “against the other.” The jury-waiver provisions, therefore, do not operate to waive jury trials in any action involving only one of the parties; instead,' the waiver provisions apply only to actions by one of the parties against the other. Additionally! by their plain language; the jury-waiver provisions apply only to explicitly defined parties; Colonial Bank’s former employees are not expressly among them.

Other provisions of the loan documents evidence an intent by Colonial Bank to expressly state certain rights relative to its employees and agents, and the inclusion of those provisions demonstrates Colonial Bank’s awareness of its ability to do so. First, the loan agreement, in the section immediately preceding the jury-waiver provision, expressly provides indemnification rights for Colonial Bank’s employees and agents, stating: “Borrower shall indemnify and hold Bank and its directors, officers, agents, employees and attorneys (collectively, the ‘Lender Parties’) harmless of and from all liability, loss, expense or damage of any kind or nature....” (Emphasis added.) Colonial Bank, as the drafter of the loan agreement, could have easily named the “Lender Parties,” which it had previously defined, or, separately, its employees or agents, as parties to the subsequent jury-waiver provision. Its choice not to do so evidences an intent not to bind its employees or agents to the jury-waiver provision.

Similarly, the guaranty states that Carter, as guarantor, agrees “to indemnify Bank and its officers, directors, agents and attorneys ” against certain claims. (Emphasis added.) Again, having done so in the indemnification provision, Colonial Bank could have easily included similar language in the jury-waiver provision in the guaranty. Its choice not to do so evidences an intent not to bind its employees or agents to the jury-waiver provision.

Considering Colonial Bank’s express inclusion of its agents and employees with respect to indemnity rights and considering the express language of the jury-waiver provisions limiting those provisions to actions brought by specifically defined parties against each other, we cannot say that the jury-waiver provisions in the loan documents are broad enough to apply to claims by or against Colonial Bank’s former employees.

Certainly, this Court has stated that a “corporation is a legal entity, an artificial person, and can only act through agents,” Townsend Ford, Inc. v. Auto-Owners Ins. Co., 656 So.2d 360, 363 (Ala.1995), and that agents “stand in the shoes” of their principals and can enforce certain contractual agreements, Stevens v. Phillips, 852 So.2d 123, 129-30 (Ala.2002) (a defendant nonsig-natory agent had standing to enforce an arbitration agreement between its principal and the plaintiff). Other courts, applying these principles, have held that jury-waiver provisions extend to nonsignatory agents of a corporation. For example, in In re Credit Suisse First Boston Mortgage Capital, L.L.C., 273 S.W.3d 843, 847-48 (Tex.App.2008), a Texas court applied the following analysis:

“We are asked to decide, as a matter of first impression, whether a valid contractual jury waiver applies to nonsigna-tories seeking to invoke the waiver as agents of the signatory corporation. We conclude that a valid waiver provision may be invoked by a nonsignatory agent when it acts on behalf of the signatory corporation.
“In 2007, the Texas Supreme Court adopted a similar rule in the context of arbitration provisions. In re Kaplan Higher Educ. Corp., 235 S.W.3d 206, 209 (Tex.2007)....
“Relators urge us to analogize jury waiver provisions to arbitration clauses, thereby extending the Kaplan holding to the case before us. That a rule may be applied in arbitration clauses, however, does not necessarily render it appropriate for jury waivers. See [In re] Credit Suisse [First Boston Mortgage Capital, L.L.C.], 257 S.W.3d [486,] 491-92 [ (Tex.App.2008) ]. Arbitration agreements and jury waivers are subject to opposite presumptions:
“ ‘Unlike arbitration agreements, which are strongly favored under Texas law, the right to a jury trial is so strongly favored that contractual jury waivers are strictly construed and will not be lightly inferred or extended. Before a jury waiver will be enforced, such waiver must be found to be a voluntary, knowing, and intelligent act that was done with sufficient awareness of the relevant circumstances and likely consequences.’
“Id. at 490 (citations omitted). A handful of federal courts have extended a jury waiver to a nonsignatory through agency principles, but they based their reasoning on principles unrelated to re-lators’ proposed analogy between arbitration clauses and jury waivers. See Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 224-25 (3d Cir.2007); Mowbray v. Zumot, 536 F.Supp.2d 617, 623 (D.Md.2008). Those courts explained that, because a corporation can act only through its agents and employees, by definition, one who agrees to a jury-waiver clause knows — and intends — that the clause naturally must extend to the corporation’s nonsignatory agents, too. See Tracinda, 502 F.3d at 223-25; see also In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 189 (Tex.2007) (orig.proceeding) (‘[C]ontract-tag parties [that] agree to arbitrate all disputes “under or with respect to” a contract ... generally intend to include disputes about their agents’ actions because “[a]s a general rule, the actions of a corporate agent on behalf of the corporation are deemed the corporation’s acts.’”). Thus, extension-through-agency does not run afoul of the requirement that jury waivers be knowingly and voluntarily made. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), quoted in [In re] Prudential Ins. Co., 148 S.W.3d [124,] 132 [ (Tex.2004) ].
“Accordingly, we hold that, when a valid contractual jury waiver applies to a signatory corporation, the waiver also extends to nonsignatories that seek to invoke the waiver as agents of the corporation. See Tracinda, 502 F.3d at 225; Kaplan, 235 S.W.3d at 209.”

We agree with the reasoning of the Texas court that analogy to arbitration cases is inappropriate because of the inapplicability of the Supremacy Clause of the United States Constitution based on cases from the United States Supreme Court construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the resulting application of opposite presumptions in interpreting arbitration and jury-waiver provisions. However, regarding the application of agency principles, based on the facts presented in this case, we must reach a different conclusion. There was no indication in Credit Suisse that the jury-waiver provision at issue there included language limiting the waiver to specifically defined parties against each other or that the documents expressly included the corporation’s agents with respect to other rights. See Credit Suisse, 273 S.W.3d at 846 (“Relators moved to quash Developer’s jury demand, citing a clause in the Loan Agreement in which the parties to the contract waived their right to submit disputes to a jury.”). The distinction is material.

The loan documents in this case evidence a failure by Colonial Bank to confer upon its employees or agents the benefits of a jury-waiver provision. Specifically, when the opportunity was presented at other places in the loan documents to expand the scope of the agreement to protect employees or agents, Colonial Bank demonstrated its ability to do so, yet it failed to do so in the context of the jury-waiver provision. We cannot rewrite the loan documents to give the jury-waiver provisions a broader effect when our standard of review requires strict construction of such provisions in deference to the constitutional guarantee of the right to trial by jury. Accordingly, the plaintiffs have shown a clear legal right to the reinstatement of their jury demand as to the individual defendants and, to that extent, the petition is due to be granted.

Conclusion

Based on the foregoing, we deny the plaintiffs’ petition for a writ of mandamus with respect to that portion of the trial court’s April 30, 2010, order striking their jury demand as to their claims against Colonial Bank and BB & T. We grant the plaintiffs’ petition for a writ of mandamus to the extent that it relates to their claims against the individual defendants, and we direct the trial court to vacate that portion of its April 30, 2010, order striking the plaintiffs’ jury demand as to those defendants and to enter an order consistent with this opinion.

PETITION DENIED IN PART; PETITION GRANTED IN PART; WRIT ISSUED.

COBB, C.J., and LYONS and SHAW, JJ., and HARWOOD, Special Justice, concur.

MURDOCK, J., concurs in the result.

WOODALL, STUART, SMITH, and BOLIN, JJ., concur in part and dissent in part.

PARKER, J., recuses himself.

MURDOCK, Justice

(concurring in the result).

I concur in the result reached by the main opinion.

As to Part I of the Analysis section thereof, I do not agree with the characterization of the plaintiffs’ argument regarding fraud in the inducement as an argument that “appears to proceed on the theory that the plaintiffs would have the right to rescind the loan documents because they allegedly were fraudulently induced to enter into them.” 66 So.3d at 236. Nonetheless, I do not find that the analysis and authority provided in the petition demonstrate a “clear legal right” to relief based on the ground that a jury-waiver provision in a contract is unenforceable when the party against whom the provision is sought to be enforced was fraudulently induced to enter the contract itself. I do not read the main opinion as addressing this more general issue.

Part II of the Analysis section of the main opinion couples the general principle that a “‘corporation is a legal entity, an artificial person, and can only act through agents,’ ” which it quotes from Townsend Ford, Inc. v. Auto-Owners Insurance Co., 656 So.2d 360, 363 (Ala.1995), with the holding in Stevens v. Phillips, 852 So.2d 123 (Ala.2002), that the nonsignatory agent in that case could enforce for his personal benefit an arbitration agreement to which his principal was a party. Approximately a year before Stevens v. Phillips was decided, this Court decided Auvil v. Johnson, 806 So.2d 343 (Ala.2001), in which it analyzed why, in certain types of cases, a corporate employee was entitled to arbitrate claims asserted against him or her individually. The Auvil Court explained a group of four precedential decisions as extending to nonsignatory agents the right to compel arbitration as decisions that “rely or may rely on express inclusive language in the arbitration agreements.” 806 So.2d at 350 (emphasis omitted). The Court in Auvil explained four other precedents extending to nonsignatory agents the right to compel arbitration as dependent upon the “intertwined” nature of the claims against the nonsignatory agent in relation to claims against a signatory that had been successful in compelling arbitration. Id.

Even if we were to apply by analogy the law regarding the right of agents to arbitrate claims made directly against them to cases such as this one that involve only a jury-waiver provision, the first group of precedents as analyzed in Auvil would provide no support for extending the jury-waiver provision in the present case for the benefit of Colonial Bank’s former employees. I see no material distinction between the contractual language at issue in that group of precedents and Auvil, on the one hand, and the present case, on the other hand. In none of these cases is there any language that purports to extend the benefit of the arbitration or jury-waiver provision to an entity that is not a party to the agreement.

As to the second group of precedents analyzed in Auvil, the claims against the employees in the present case are in fact intertwined with the claims against the principal. Further, it has been established in the present case that the jury-waiver provision will be applied to the principal.

I am not persuaded, however, that the rationale for allowing nonsignatory employees and agents to compel arbitration of claims against them that are intertwined with claims against signatory principals that are to be arbitrated applies when the issue is solely the waiver of a jury trial. As Auvil notes, arbitration cases concerned with the intertwined nature of claims against signatories and nonsignato-ries are in some measure rooted in a concern that “ ‘ “[sjeparate forums may result .in varying decisions[,j discreditable to the administration of justice.” ’ ” 806 So.2d at 347 (quoting Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 143 Ga.App. 579, 581, 239 S.E.2d 401, 404 (1977), in turn quoting Starr v. O’Rourke, 5 Misc.2d 646, 647, 159 N.Y.S.2d 60, 62 (1957) (emphasis omitted)). The adjudication of a claim against one defendant by a judge and the adjudication of the claims against other defendants by a jury do not require separate forums.

More generally, I agree with the skepticism expressed in the main opinion as to the appropriateness of analogizing principles distilled from arbitration cases to cases involving jury-waiver provisions. As the main opinion notes, the Supremacy Clause of the United States Constitution applied in relation to cases construing the Federal Arbitration Act, 9 U.S.C. § 1 et seq., on the one hand, and the constitution-, al right to a trial by jury, on the other hand, result in “opposite presumptions in interpreting arbitration and jury-waiver provisions.” 66 So.3d at 239.

WOODALL, Justice

(concurring in part and dissenting in part).

Insofar as the main opinion denies the plaintiffs’ petition for a writ of mandamus with respect to that portion of the trial court’s order striking their jury demand as to their claims against Colonial Bank and BB & T, I concur. However, insofar as the main opinion grants the petition with respect to the plaintiffs’ claims against the individual defendants and directs the trial court to vacate that portion of its order striking the plaintiffs’ jury demand as to the individual defendants, I respectfully dissent.

“[Tjhis Court must uphold the intent of the parties as expressed in their contract.” Ex parte AIG Baker Orange Beach Wharf, L.L.C., 49 So.3d 1198, 1203 (Ala.2010). Pursuant to each of the loan documents, the plaintiffs “waive[dj the right to any jury trial in any action ... brought by [them] against [Colonial Bank].” (Emphasis added.) In my opinion, this broad waiver is unambiguous and applies to the entire pending action, including the plaintiffs’ claims against the individual defendants, and is not limited to the plaintiffs’ claims against Colonial Bank and its successor, BB & T. In my judgment, the construction in the main opinion of the waiver is not true to its terms and, further, because a corporation can act only through its agents, has created a procedural morass.

STUART, SMITH, and BOLIN, JJ., concur.

      . In the same order, the trial court dismissed Robert E. Lowder as a defendant. The plaintiffs make no argument in their petition challenging that dismissal.

      . "Public policy, the Alabama Rules of Civil Procedure, and the Alabama Constitution all express a preference for trial by jury. Ex parte Cupps, 782 So.2d [772,] 775 [ (Ala.2000) ]. That said, ‘no constitutional or statutory provision prohibits a person from waiving his or her right to trial by jury.’ Mall, Inc. v. Robbins, 412 So.2d 1197, 1199 (Ala.1982)." 49 So.3d at 1200-01.

      . This principle was applied in Townsend Ford, as it commonly is, in order to establish that the employer was bound by the acts of its employee. 656 So.2d at 363.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    A.K. v. N.B.
    2070086.
    Court of Civil Appeals of Alabama.
    May 23, 2008.
    Rehearing Denied Dec. 19, 2008.

      Kimberly A. Clark, Dothan, for appellant.
    L. Jan Laney, Dothan, for appellee.
   PITTMAN, Judge.

A.K., a woman who has been adjudged by the Superior Court of Sutter County, California (“the California court”), to be a legal parent of A.R.B.K. (“the child”), a child born to N.B., appeals from an order of the Houston Juvenile Court (“the Alabama court”) denying a motion that, in effect, sought relief from the Alabama court’s previous judgment declaring that N.B. was the sole legal parent of the child and that A.K. was not entitled to visitation with the child. Because we conclude that the Alabama court lacked jurisdiction to enter its judgment regarding the child’s parentage and the parties’ visitation rights as to the child, we reverse the Alabama court’s order denying A.K.’s motion and remand the cause with instructions to dismiss N.B.’s action in that court.

The record reveals that the child was conceived by means of artificial insemination of an egg furnished by N.B.; N.B. carried the child in útero to term, giving birth to the child in April 1999 in California. The child’s original California birth certificate lists N.B. as the child’s mother, but it does not indicate another parent. The record further reveals that N.B. and A.K. lived together in California in an arrangement that was described by A.K.’s counsel as having rendered the two of them “co-parents” with respect to the child; however, that arrangement apparently came to an end in March 2004, when the two parties ceased living together and N.B. and the child established a different California domicile.

California, like Alabama, has adopted a number of provisions of the 1973 Uniform Parentage Act (“UPA”), under which an interested party may seek a declaration that he or she is the father or the mother of a child. Compare Cal. Fam.Code § 7600 et seq., with Aia.Code 1975, § 26-17-1 et seq. Although Alabama appellate courts have yet to consider the question, in August 2005, the Supreme Court of California, construing that state’s version of the UPA, held that a woman with whom the biological mother of a child has lived in a committed romantic relationship can, in law, also be deemed a “mother” of that child by analogy to provisions permitting a presumed father of a child to be adjudicated a parent of that child. See Elisa B. v. Superior Court, 37 Cal.4th 108, 33 Cal.Rptr.3d 46, 117 P.3d 660 (2005) (disapproving, among other decisions to the contrary, West v. Superior Court, 59 Cal.App.4th 302, 69 Cal.Rptr.2d 160 (1997)).

In September 2005, approximately one month after Elisa B. was decided and one month after N.B. and the child had moved from California to Alabama, A.K., who has remained a California resident, filed in the California court a “Petition to Establish Parental Relationship” in which she described herself as a “presumed mother” of the child under § 7611(d) of the California Family Code, a portion of the UPA as adopted in California. In that petition, N.B. and the child were alleged to be California residents. A.K. sought, among other things, a declaration by the California court of her rights as to custody and visitation regarding the child.

Pursuant to the Parental Kidnaping Prevention Act (“PKPA”), a federal statute codified at 28 U.S.C. § 1738A, a state must enforce a “custody determination or visitation determination made ... by a court of another State” that is “consistent with” the PKPA. 28 U.S.C. § 1738A(a). Under the PKPA, “[a] child custody or visitation determination made by a court of a State” is to be deemed “consistent with” the PKPA if the court making the determination “has jurisdiction under the law of such State” and if the state in which the court sits “had been the child’s home State within six months before the date of the commencement of the proceeding” when (a) “the child is absent from such State because of his removal or retention by a contestant or for other reasons,” and (b) “a contestant continues to live in such State.” 28 U.S.C. § 1738A(c). In addition, the PKPA provides that a state court may not “exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.” 28 U.S.C. § 1738A(g). At the time A.K. filed her “Petition to Establish Parental Relationship” - in the California court in September 2005, N.B. and the child had not resided in Alabama for a six-month period.

After the parentage and visitation proceeding was initiated in the California court, that court ordered the parties to engage in mediation of their dispute. It is not clear from the record whether mediation did not take place or whether mediation was unsuccessful; however, it does reflect that the parties and them attorneys appeared in the California court on August 15, 2006, for a contested hearing. After that hearing, the parties were directed to attend a mediation session on August 18, 2006, and to return to court later that day for a further hearing on, among other matters, child custody and visitation. The California court rendered a judgment on September 11, 2006, determining both A.K. and N.B. to be parents of the child, and that judgment was subsequently filed with the clerk of that court.

On September 6, 2006, after her appearance in the California court to contest A.K.’s petition (but five days before the California court had determined A.K. to be a parent of the child), N.B. filed a “Petition for Temporary Custody” in the Alabama court in which she alleged, in pertinent part, that she and the child had lived in Alabama for more than a year, that the Alabama court had jurisdiction, and that Alabama “ha[d] a greater interest in the outcome of any proceeding having to do with the best interest of the child”; she further averred that A.K. had engaged in “constant name calling” that had emotionally scarred the child and that A.K. intended to kidnap the child and return her to California. The Alabama court entered an ex parte order on September 8, 2006, granting N.B. sole custody of the child pending further orders and enjoining the child’s removal from Alabama. The Alabama court subsequently appointed a guardian ad litem to represent the interests of the child in N.B.’s action. On November 14, 2006, the Alabama court held a hearing on N.B.’s petition at which only counsel for N.B. and the child’s guardian ad litem appeared. After that hearing, the Alabama court entered a judgment on November 16, 2006, determining that the child had already moved to Alabama by the time A.K.’s petition was filed in the California court and that the California court “ha[d] no subject matter jurisdiction in this matter ab initio the Alabama court also ruled that it had jurisdiction over matters regarding the child’s custody and visitation, opined that N.B. was the sole parent of the child, and concluded that A.K. had no visitation rights as to the child. The record does not reflect, however, that A.K. was given notice of N.B.’s filings or that the Alabama court notified A.K. of any hearings giving rise to its September 8, 2006, order or its November 16 judgment.

Despite the Alabama court’s denial of the existence of jurisdiction in the California court, that court continued to determine matters arising from A.K.’s parentage and visitation petition. After a December 2006 hearing, the California court ordered that the child’s birth certificate be amended to reflect A.K.’s status as a parent of the child. On February 1, 2007, following a hearing on January 12, 2007, the California court entered an order determining that A.K. would have certain periods of visitation with the child in February and March 2007, after which the matter would again be reviewed; that order further stated that the California court “ha[d] jurisdiction to make child custody orders in this case under the Uniform Child Custody Jurisdiction and Enforcement Act” (“UCCJEA”), which is codified in California at Cal. Fam.Code, § 3400 et seq., and that N.B., as the responding party, “was given notice and an opportunity to be heard, as provided by the laws of the State of California.”

In April 2007, A.K. appeared for the first time in the Alabama court and filed what she labeled a “Motion to Dismiss” the action brought by N.B. A.K. contended in her motion that the Alabama court should, as a procedural matter, dismiss or stay all proceedings in the Alabama court because N.B. had failed to provide information regarding, among other things, the child’s recent residences that is generally required under Alabama’s version of the UCCJEA, Ala.Code 1975, § 30-3B-101 et seq., to be provided in custody proceedings (see Ala.Code 1975, § 30-3B-209). Substantively, A.K. contended that under the PKPA and the UCCJEA, only the California court could properly exercise jurisdiction over the matter of visitation because, A.K. said, the California court had entered a proper visitation order and had continuing jurisdiction to modify that order. In response to A.K.’s motion, N.B. filed an objection in which she alleged that the California court had lacked subject-matter jurisdiction to determine questions of visitation and that A.K.’s petition to determine parentage and visitation had not afforded her “reasonable notice” of what was being sought.

After a hearing, the Alabama court entered a judgment denying A.K.’s motion. The Alabama court opined in its judgment, among other things, that the proceedings in the California court were not “consistent with” the PKPA and that it was not required, under the UCCJEA, to defer to the California court. A.K. timely appealed to this court from that judgment.

On appeal, A.K. again contends that the Alabama court’s exercise of jurisdiction was erroneous in light of, among other things, the provisions of the PKPA. Based upon the record in this case, and the provisions of the PKPA, we must agree with A.K. At the time A.K. filed her “Petition to Establish Parental Relationship” in the California court in September 2005, which also sought a judicial determination as to her rights to visitation with the child, N.B. and the child had left California but had not yet resided in Alabama for six months, while A.K. remained in California. Under the PKPA, as well as California’s version of the UCCJEA, the California court had jurisdiction to determine A.K.’s visitation rights as to the child because California “had been the child’s home State within six months before the date of the commencement of the proceeding,” the child was “absent from [California] because of [her] removal” to Alabama by N.B., and A.K. “continue[d] to live in” California. See 28 U.S.C. § 1738A(c)(l) and (c)(2)(A); accord Cal. Fam.Code § 3421(a)(1). Under both California’s version of the UCCJEA and that state’s case-law, personal jurisdiction over a party is not necessary to make a “child custody determination,” a term that encompasses a determination of visitation rights. Cal.Fam.Code §§ 3402(c) & 3421(c); In re Marriage of Torres, 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344, 352 (1998) (“The requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard.”). Furthermore, the California court has expressly determined that it has jurisdiction to enter orders regarding A.K.’s visitation rights.

N.B. attempts to justify the Alabama court’s exercise of jurisdiction on the basis that Alabama’s version of the UPA allows a party to seek an adjudication of paternity in the county in which the child resides (Ala.Code 1975, § 26—17—10(f)); a paternity action, N.B. appears to contend, is not within the scope of the PKPA. Although an interested party would have standing under the UPA to seek a judgment regarding the existence or nonexistence of a mother-and-child relationship, see Ala.Code 1975, § 26-17-18, there are two flaws in N.B.’s argument:

(1) A.K. is not a resident of Alabama who may properly be deemed to have submitted to the jurisdiction of its courts under Ala.Code 1975, § 26-17-10(b), nor does she fall within the provision in Alabama’s UPA under which a nonresident “who has [had] sexual intercourse in this state” is deemed to have submitted to the jurisdiction of Alabama courts “as to an action brought ... with respect to a child who may have been conceived by that act of sexual intercourse.” Ala.Code 1975, § 26-17-10(c) (emphasis added).

(2) Even if the Alabama court could properly exercise personal jurisdiction over A.K. as to parentage issues, it would now be bound, under federal constitutional and statutory law, to give full faith and credit to the judgment of the California court rendered on September 11, 2006, that A.K. is a parent of the child. See Package Express Ctr., Inc. v. Maund, 957 So.2d 1137, 1140 (Ala.Civ.App.2006) (noting that Alabama courts are required to give a judgment entitled to full faith and credit at least the res judicata effect accorded in the rendering court’s jurisdiction so long as jurisdiction was not lacking in the rendering court); In re Margarita D., 72 Cal.App.4th 1288, 1296, 85 Cal.Rptr.2d 713, 718 (1999) (California judgment declaring existence of parent-and-child relationship held determinative for all purposes and immune from collateral attack through the use of contrary blood-test evidence).

Finally, even if a UPA action were otherwise proper, the PKPA would prevent the Alabama court from addressing “the custody of the child” under Ala.Code 1975, § 26-17-14(d), such that the primary issue of A.K.’s right to visitation with the child would not be subject to reexamination in the Alabama court. See 28 U.S.C. § 1738A(g) (when a child-visitation proceeding is pending in a court of one state having jurisdiction to make a visitation determination, another state’s courts may not make a custody or visitation determination during the pendency of that proceeding).

N.B. also contends that the PKPA does not mandate that the various orders of the California court be accorded full faith and credit. However, as we have twice noted in this opinion, the PKPA does not merely apply to situations in which the court of a child’s home state has entered an order or judgment adjudicating a party’s visitation rights; rather, it bars courts in other states from exercising jurisdiction to make a custody or visitation determination during the pendency of proceedings in the child’s home state. In this case, A.K. filed her petition in the California court before the Alabama court could have acquired home-state jurisdiction; therefore, as a matter, of federal law, the Alabama court could not properly determine visitation rights as to the child.

Our reasoning parallels that of the Virginia Court of Appeals in Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88, 637 S.E.2d 330 (2006), cert. denied, 552 U.S. 1166, 128 S.Ct. 1127, 169 L.Ed.2d 950 (2008). In Miller-Jenkins, a proceeding was filed in a Vermont trial court in November 2003 by the natural mother of a child conceived by artificial insemination in which the natural mother sought the judicial dissolution of a “civil union” involving the natural mother and another woman with whom the natural mother had lived in Vermont between August 2002 and September 2003. The Vermont action also involved a request for a determination of the parties’ rights concerning custody and visitation with respect to the child. However, the natural mother subsequently filed an action in a Virginia trial court in which she sought a declaration of sole parentage and an adjudication that her former partner had no parental rights; the Virginia trial court granted that requested relief.

The Virginia Court of Appeals reversed that judgment on the basis that the PKPA barred the Virginia trial court from exercising jurisdiction to determine custody and visitation rights as to the child. Noting that the Vermont action had been filed within six months after the departure of the natural mother and the child from Vermont, that that action had placed in issue the parties’ rights in and to the child with respect to custody and visitation, and that the Vermont court had determined that jurisdiction lay in Vermont, the Virginia appellate court concluded that subsections (g) and (h) of the PKPA barred the Virginia trial court from entertaining the natural mother’s petition to declare her the child’s sole parent. 49 Va.App. at 96-98, 637 S.E.2d at 334-35. The Virginia appellate court concluded:

“We hold that the [Virginia] trial court erred in failing to recognize that the PKPA prevented its exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court. By so holding, we do not address whether Virginia law recognizes or endorses same-sex unions entered into in another state or jurisdiction. We do not comment on the constitutionality, viability or breadth of the UCCJEA and [Virginia’s Marriage Affirmation Act]. We do not consider the merits of the rulings of the Vermont court. Those questions are not before us. The issue before us is the narrow one of jurisdiction. By filing her complaint in Vermont, [the natural mother] invoked the jurisdiction of the courts of Vermont and subjected herself and the child to that jurisdiction. The PKPA forbids her prosecution of this action in the courts of this Commonwealth. Accordingly, we vacate the orders of the [Virginia] trial court and remand this matter to the trial court with instruction to extend full faith and credit to the custody and visitation orders of the Vermont court.”

49 Va.App. at 103, 637 S.E.2d at 337-38.

Confronted with the priority of the California court’s jurisdiction in this case, which stems from A.K.’s initiation of parentage and visitation proceedings in that court before Alabama became the child’s home state, we likewise hold that the PKPA preempted the Alabama court’s jurisdiction to enter a judgment touching and concerning A.K.’s visitation rights with respect to the child. The Alabama court’s November 16, 2006, judgment is reversed, and the cause is remanded with instructions to dismiss N.B.’s action.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., dissents, without writing.

      1. The PKPA defines a “contestant” as “a person, including a parent or grandparent, who claims a right to custody or visitation of a child.” 28 U.S.C. § 1738A(b)(2).

      . Because the Alabama court had previously entered a judgment in November 2006 determining the merits of the controversy and granting the relief requested by N.B. in her September 2006 petition, A.K.'s motion effectively sought relief from that judgment under Rule 60(b)(4) and 60(b)(6), Ala. R. Civ. P. See Ex parte Hartford Ins. Co., 394 So.2d 933, 935 (Ala.1981) (stating that "under the [Alabama] Rules of Civil Procedure, nomenclature of a motion is not controlling" and holding that a "motion to reinstate” an action filed nine months after a final judgment had been entered was properly deemed a motion for relief from the judgment under Rule 60(b)). We note that an order denying relief under Rule 60(b) is an appealable final judgment. See Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005).

      . Whether that determination was made over N.B.’s express objection or not is of no import. See Package Express Ctr., Inc. v. Maund, 957 So.2d 1137, 1142 (Ala.Civ.App.2006) (when a party appears in an action, the judgment in that action has res judicata effect as to the issue of personal jurisdiction regardless of whether that party actually litigated the question or merely permitted it to pass without objection).

      . Although N.B. asserts that a claim under the UPA by the child would not be barred by the doctrine of res judicata, the record does not reflect that the child has asserted any such claim.


author: MURDOCK, Justice. LYONS, Justice

text:
    Ex parte N.B. (In re A.K. v. N.B.).
    1080440.
    Supreme Court of Alabama.
    June 30, 2010.
    Stephen M. Crampton, Liberty Counsel, Lynchburg, Virginia; Eric A. Johnston, Birmingham; and Mathew D. Staver, Liberty Counsel, Maitland, Florida, for petitioner.
    Gregory R. Nevins, Lambda Legal Defense & Educational Fund, Atlanta, Georgia; and Kimberly A. Clark, Ozark, for respondent.
    Roy S. Moore and Benjamin D. Dupré, Montgomery, for amicus curiae Foundation for Moral Law, in support of the petitioner.
    Gregory M. Varner, Virginia Beach, Virginia, for amicus curiae National Legal Foundation, in support of the petitioner.
    Laura C. Alfano, Warrior, for amicus curiae National Center for Lesbian Rights, in support of the respondent.
   MURDOCK, Justice.

This case involves a custody dispute between N.B. (“the mother”), the biological mother of her daughter A.R.B.-K. (“the child”), both of whom were formerly residents of California, and A.K., a California resident who has no biological relationship to the child. In the summer of 2005, a few weeks after the mother and the child moved to Alabama, A.K. instituted proceedings in the Superior Court of California, County of Sutter (“the California trial court”), seeking a declaration of maternity and visitation rights with the child. While those proceedings were pending, the mother instituted proceedings in the Houston Juvenile Court (“the juvenile court”) seeking a declaration that the mother was the sole parent of the child and that A.K. had no right to visitation. A.K. was not named as a defendant or otherwise made a party to the proceedings in the juvenile court.

In November 2006, the juvenile court entered an order (“the November 2006 order”) granting the mother the relief she requested. Thereafter, A.K. filed a Rule 60(b), Ala. R. Civ. P., motion in the juvenile court, seeking to set aside the November 2006 order. The juvenile court denied A.K.’s motion. A.K. then appealed to the Court of Civil Appeals, which reversed the juvenile court’s order, holding, in part, that the Parental Kidnapping Prevention Act (“the PKPA”), 28 U.S.C. § 17B8A, required the juvenile court to decline to exercise jurisdiction while proceedings were pending in the California trial court. See A.K v. N.B., 66 So.3d 242 (Ala.Civ.App.2008); see generally 28 U.S.C. § 1738A(g)(“A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.”). We granted the mother’s petition for a writ of certiorari.

Facts and Procedural History

The child was conceived by artificial insemination and was born to the mother in April 1999. When the child was born, the mother and A.K. apparently were involved in a lesbian relationship and resided together. On the child’s original birth certificate, the mother, N.B., is described as the child’s mother. No name appears on the birth certificate in the space provided for the child’s father. A.K.’s name does not appear on the birth certificate. A.K.’s last name, however, appears on the birth certificate as part of the hyphenated last name of the child.

The mother and A.K. ended their relationship in March 2004, and the mother and the child moved to a different residence in California than the residence in which A.K. resided.

We note that the mother asserts on appeal that she and A.K. were domestic partners under California law. A January 2005 amendment to California’s domestic-partnership statute expressly authorizes domestic partners to establish a parent-child relationship between the child of either of them and two parents of the same gender. See Cal. Fam.Code §§ 297(b) and 297.5(d); Elisa B. v. Superior Court, 37 Cal.4th 108, 119, 33 Cal.Rptr.3d 46, 53, 117 P.3d 660, 666 (2005). The amendment became effective after the mother and A.K. had ended their relationship, however, and there is no contention that there was an attempt to establish a parent-child relationship between A.K. and the child pursuant to this statute.

At some point, the mother’s parents moved to Alabama. In July 2005, the mother decided to move with the child to Alabama; she brought the child to Alabama; and she found a house in Alabama. In August 2005 she purchased the house, and after purchasing the house, she returned to California and retrieved her belongings.

According to the complaint, sometime after moving to Alabama in 2005, the mother married. The mother alleges that her husband desires to adopt the child and the child’s older sister.

In August 2005, the Supreme Court of California decided Elisa B. v. Superior Court, supra, which concerned the application of California’s version of the Uniform Parentage Act, Cal. Fam.Code § 7600 et seq. (“the UPA”). Specifically, the Elisa B. court considered whether a lesbian who was a former partner of the biological mother of a child could be a second parent of the child under the following language in Cal. Fam.Code § 7611(d): “A man is presumed to be the natural father of a child if ... [h]e receives the child into his home and openly holds out the child as his natural child.” (Emphasis added.) Notwithstanding the above-emphasized language, the Elisa B. court concluded that § 7611 could be applied to determine maternity, and it stated that it “perceive[d] no reason why both parents of a child cannot be women.” 37 Cal.4th at 119, 33 Cal.Rptr.3d at 53, 117 P.3d at 666 (emphasis added). The court opined

“that a woman who agreed to raise children with her lesbian partner, supported her partner’s artificial insemination using an anonymous donor, and received the resulting twin children into her home and held them out as her own, is the children’s parent under the Uniform Parentage Act and has an obligation to support them.”

37 Cal.4th at 113, 33 Cal.Rptr.3d at 48, 117 P.3d at 662.

In September 2005, A.K. filed a “Petition to Establish Parental Relationship” in the California trial court seeking a declaration that she was a presumed mother of the child under California’s version of the UPA or, in the alternative, that she was a “de facto” parent of the child. The mother was served with A.K.’s petition in November 2005. Thereafter, she retained counsel and initially defended on the merits against A.K.’s petition.

In August 2006, the mother and her California counsel attended a hearing in the California trial court. The parties were ordered to mediation. It is unclear from the record whether the mediation occurred.

On September 8, 2006, the mother filed a “Petition for Temporary Custody” in the juvenile court. The mother alleged that she was the child’s mother, that the child had resided with her since the child’s birth, and “[t]hat there is a non-parent proceeding in the [California trial court] by [A.K.], a [l]esbian who bears no blood relationship to the child, seeking court ordered visitation of the child.” The mother alleged that A.K. had verbally abused the child and had caused her to suffer emotional scarring, that A.K. had threatened to take the child, and that the mother feared that A.K. was going to kidnap the child. The mother also alleged in an exhibit to the petition that A.K. had had no contact with the child for an extended period and that the child had little memory of A.K. The mother requested that the juvenile court “provide a temporary order[,] to be effective until further orders of this Honorable Court,” “ [r]ecognizing the [mother] as the sole parent of the minor child” and “[Restraining [A.K.] or any of her agents from removing the child from the [mother’s] care in the [S]tate of Alabama.” Attached as exhibits to the mother’s petition were, among other things, a copy of the child’s birth certificate, a copy of forms the mother had completed in connection with her artificial-insemination procedure, and a copy of portions of A.K.’s September 2005 petition. The petition filed in the juvenile court does not name A.K. as a defendant. A.K. was not served with process, and A.K. did not appear in the juvenile court proceeding.

On the day the mother filed her petition, the juvenile court entered an ex parte order awarding the mother sole custody of the child pending further orders of the court and restraining A.K., her agents, and law enforcement from removing the child from Alabama pending further orders of the court.

In October 2006, the California trial court entered an order purporting to find that, in addition to the mother, A.K. was also the child’s mother; the California trial court did not award A.K. visitation rights at that time.

In November 2006 the juvenile court conducted an ore tenus proceeding concerning the mother’s petition. The record on appeal contains no transcript of what transpired at the hearing and no summary of the evidence the mother presented at the hearing. A few days later, the juvenile court entered the November 2006 order, which states:

“The [mother] made known that [A.K.], a ‘de facto parent,’ had initiated a proceeding in California in order to obtain visitation with the minor child. The Court finds that a ‘de facto parent’ is not a status or standing recognized in Alabama law and any proceeding based upon this California standing does not oust Alabama on the issue of jurisdiction.... [I]t is concluded that the California court has no subject matter jurisdiction in this matter ab initio, and personal jurisdiction over the minor child, who resided in Alabama at the time the petition of the ‘de facto parent’ was filed in California, lies exclusively in this forum.
“From testimony taken and evidence presented, the Court finds the [mother] is the sole parent of the said minor child and as such has the sole liberty interest in making decisions about the care, custody, and control of said minor child.”

The November 2006 order also declares that A.K. had no visitation rights as to the child.

In December 2006, the California trial court conducted a hearing, which neither the mother nor her California counsel attended. In January 2007, the California trial court entered an order pursuant to California’s version of the UPA requiring that, based on its October 2006 order, A.K. be added as a mother on the child’s birth certificate. See Cal. Fam.Code § 7639. Also, the California trial court set the matter for a hearing to determine A.K.’s visitation rights.

After conducting a hearing on the issue of visitation, which neither the mother nor her California counsel attended, the California trial court entered an order in February 2007 awarding A.K. visitation with the child for a few days in February and a few days in March 2007. It also set the matter for review after the February visitation, but before the March visitation. The record on appeal does not reflect whether A.K. attempted to exercise her visitation rights under the February 2007 order or what further proceedings might have been held in the California trial court after the entry of that order.

In April 2007, A.K. filed a motion in the juvenile court requesting, in effect, that it set aside its November 2006 order based on a lack of subject-matter jurisdiction. The Court of Civil Appeals properly characterized the motion, entitled a “Motion to Dismiss,” as a motion seeking relief under Rule 60(b)(4), Ala. R.Civ. P. See A.K., 66 So.3d at 245 n. 2. In her motion, A.K. contended that under the PKPA and the Uniform Child Custody Jurisdiction Enforcement Act, Ala.Code 1975, § 30-3B-101 et seq. (“the UCCJEA”), only the California trial court could properly exercise jurisdiction as to A.K.’s visitation rights.

After conducting an ore tenus proceeding, the juvenile court entered an order in October 2007 denying A.K.’s motion. The October 2007 order states:

“2. Full faith and credit of any order of the [California trial court] regarding the visitation, custody or child support of the minor child is not honored because those proceedings did not meet provisions of the Parental Kidnapping Prevention Act [28 U.S.C. § 1738A] and therefore, the Uniform Child Custody Jurisdiction Enforcement Act [Ala.Code 1975, § 30-3B-101 et seq.] does not attach.
“3. Under Alabama law or federal law, there is no codified provision that gives to a nonparent in a same-sex relationship the requisite standing to obtain custody or visitation (i.e., parental rights) of the child of a former partner.
“4. The Eleventh Circuit Court of Appeals mandated that ‘[i]f the Legislature does not provide a person with standing to obtain parental rights, the courts must presume the Legislature is acting, or refusing to act, by virtue of its position as representatives of the will of the people.’ Lofton v. Secretary of Dep’t of Children and Family Services, 358 F.3d 804 (11th Cir.[2004]).... Therefore, a Court cannot presume to substitute its will for that of Legislatures representing the will of the people, and [A.K.] lacks standing on which relief may be granted.
“5. Issues regarding the welfare of the minor child remain exclusively within the jurisdiction of this Court, including the establishing of paternity pursuant to the Uniform Parentage Act as presented in Ala.Code § 26-17-10(0.
“6. The best interest of the minor child was not met when the minor child was not present in the state of California, was not made a party to that proceeding and was not represented by a guardian ad litem.”

We also note that at the hearing on A.K.’s motion the juvenile court stated that it had discussed the case with the California trial court, but there is no record concerning the substance of that conversation. See Ala.Code 1975, § 30-3B-110 (discussing communication between courts of different states under the UCCJEA and requiring that a record be made of some types of communications). The juvenile court stated that it did not recall there being any discussion concerning the issue of jurisdiction.

A.K. appealed. The Court of Civil Appeals reversed the decision of the juvenile court. On petition by the mother, we granted the writ of certiorari.

Standard of Review

As the Court of Civil Appeals noted, A.K.’s motion was, in effect, a Rule 60(b)(4), Ala. R. Civ. P., motion for relief from the November 2006 order on the ground that the juvenile court lacked subject-matter jurisdiction.

“ ‘ “The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ”

Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting other cases).

Analysis

The Court of Civil Appeals concluded that the PKPA required the juvenile court not to exercise its jurisdiction, particularly on the issue whether A.K. had visitation rights. The PKPA states:

“A court of a State shall not exercise jurisdiction in any proceeding for a custody or visitation determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody or visitation determination.”

28 U.S.C. § 1738A(g) (emphasis added).

In this case, the California trial court entered a judgment holding that A.K. was a second mother of the child based upon the holding in Elisa B. that Cal. Fam.Code § 7611(d) could be applicable to a female and the statement in that case that the court “perceived no reason why both parents of a child cannot be women.” The mother argues that substantial issues exist as to whether the California trial court “exercis[ed] jurisdiction' consistently with the provisions of the PKPA.” Issues also are raised that implicate the federal Defense of Marriage Act, 28 U.S.C. § 1738C.

We also note that Art. I, § 36.03, Ala. Const.1901, provides, in part, that “[m]arriage is inherently a unique relationship between a man and a woman” and that “[a] union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state....” Section 30-1-19, Ala.Code 1975, also seeks to protect marriage as “inherently a unique relationship between a man and a woman.” Accordingly, questions regarding the judgment of the California trial court and its enforceability in Alabama may exist in light of the unequivocal nature of Alabama public policy on the issue presented by this case.

Nonetheless, none of these questions have been properly presented in a justicia-ble case over which the courts in this State may exercise jurisdiction. As noted, in the action in the juvenile court, the mother attempted to litigate A.K.’s interests, but did not name A.K. as a defendant. In effect, therefore, the mother sought to validate her position in relation to an adverse party without an adversarial proceeding involving that party. As the Supreme Court has stated, “it is elemental that there must be parties before there is a case or controversy.” Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 44 L.Ed.2d 274 (1975). “[T]he self-interest of the adversaries are relied upon to provide the foundation for sound adjudication.... The most fundamental rule is that there actually be parties.” 13 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 3530 (2008).

Like the present case, Gulf Beach Hotel Inc. v. State ex rel. Whetstone, 935 So.2d 1177 (Ala.2006), involved a complaint that sought a declaratory judgment adverse to an entity that was not a party to the action. We held in Gulf Beach Hotel that this Court is not empowered to render a decision under such circumstances, noting that a purpose of the Declaratory Judgment Act is “ ‘to enable parties between whom an actual controversy exists or those between whom litigation is inevitable to have the issue speedily determined....’ ” 935 So.2d at 1183 (quoting Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala.2003) (emphasis in Gulf Beach Hotel, Inc.)). Although the judgment sought in that case would have been adverse to an entity known as Gulf Beach Hotel, Gulf Beach Hotel was not a party to that action, and we therefore concluded that the complaint in that case did not “allege any controversy between parties whose legal interests [were] adverse.” Id. Cf. Rock Tours, Ltd. v. Does, 507 F.Supp. 63, 66-67 (N.D.Ala.1981) (declining relief on the ground of a lack of justiciability because, “[a]t this point, plaintiffs have no adversaries in this Court”).

In the same way, although the complaint filed in Etowah Baptist Ass’n v. Entrekin, 45 So.3d 1266 (Ala.2010), could have resulted in a judgment adverse to the interest of the Etowah Baptist Association, that association was not a party to that case. Relying on Gulf Beach Hotel, Inc., therefore, we concluded that the action at issue there “presented no justiciable controversy and should have been dismissed on that basis.” We vacated the circuit court’s judgment and dismissed the case and the appeal. For the same reason, the judgments of the juvenile court and the Court of Civil Appeals are due to be vacated and the writ of certiorari previously issued in this case is due to be quashed. The Court of Civil Appeals is instructed to vacate its judgment and to dismiss the appeal and to instruct the trial court to vacate its judgment.

WRIT QUASHED WITH INSTRUCTIONS.

STUART, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., and LYONS, WOODALL, and SHAW, JJ., concur in the result.

LYONS, Justice

(concurring in the result).

I agree with the main opinion to the extent that it holds that failure to join A.K. as a party to the juvenile court proceeding in Alabama requires the dismissal of the juvenile court proceeding for want of a justiciable controversy. I further agree that this circumstance renders it unnecessary to consider the issue of any conflict with 28 U.S.C. § 1738A(g). I express no opinion on the other matters addressed in the main opinion.

      . According to the mother, A.K. has no biological relationship to the child.

      . In her appellate brief, the mother asserts that A.K. had no contact with the child and paid no support for the child after she and A.K. ended their relationship. A.K. does not dispute that assertion.
      Also, it is undisputed that A.K. did not purport to adopt the child after she was born. We note that in the mother’s response to A.K.’s motion to set aside the November 2006 order, see discussion infra, she alleged that during their relationship she had asked A.K. to adopt the child along with the mother's other daughter (the child’s older sister) when the mother was "facing the possibility of a terminal illness.” The mother alleged that A.K. refused.

      . It is not clear from the record whether the California trial court was aware of the mother’s marital status or of her husband’s desire to adopt the mother’s children.

      . See generally Cal. Fam.Code § 7650(a) (providing for an action to establish the "mother and child relationship” and stating that, ”[i]n-sofar as practicable, the provisions of this part applicable to the father and child relationship apply”).

      . In Elisa B., the El Dorado County district attorney filed a petition to establish the former partner’s status as a parent for purposes of obtaining child support. Unlike the present case, the biological mother in Elisa B., who was receiving financial assistance from the county, did not oppose the petition. The Elisa B. court stated:
      ”[T]his is not an appropriate action in which to rebut the presumption that Elisa is the twins’ parent with proof that she is not the children’s biological mother because she actively participated in causing the children to be conceived with the understanding that she would raise the children as her own together with the birth mother, she voluntarily accepted the rights and obligations of parenthood after the children were bom, and there are no competing claims to her being the children's second parent.”
      37 Cal.4th at 125, 33 Cal.Rptr.3d at 58, 117 P.3d at 670.

      .Under California law, the "de facto parenthood doctrine” merely recognizes that "persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding.” In re Kieshia E., 6 Cal.4th 68, 77, 23 Cal.Rptr.2d 775, 781, 859 P.2d 1290, 1296 (1993) (emphasis added). Nothing in the record before us indicates that the proceedings in the California trial court were dependency proceedings.

      . Also, in addition to her jurisdictional argument, A.K. argued that the mother’s failure to comply with the pleading requirements of the UCCJEA, which are set forth in Ala.Code 1975, § 30-3B-209, required that the mother's September 2006 petition be dismissed. We note that the UCCJEA pleading requirements are not jurisdictional, see Official Comment to § 30-3B-209; we need not reach the issue whether A.K. made an argument concerning the mother's failure to comply with the pleading requirements that would satisfy her burden of showing that she was entitled to relief pursuant to Rule 60(b).

      . “Nor can an action be maintained to procure a judgment which will affect or settle the rights or liabilities of third persons who are not parties to the action.” 1A C.J.S. Actions § 71 (2005); see, e.g., Meeker v. Straat, 38 Mo.App. 239, 243 (1889) ("When a suit is brought with a view of affecting the rights of third parties, and it is apparent that that is its sole object, the suit ceases to be adversary and becomes collusive. No court should lend its aid to such a proceeding, least of all a court of equity.” (cited with approval in State v. Scoville, 197 Ala. 223, 227, 72 So. 546, 548 (1916))); Brewington v. Lowe, 1 Ind. 21, 23-24 (1848) ("The impropriety of [undertaking to settle abstract questions of law] in the present case is manifest from the facts, that the question professed to be litigated, considered with reference either to the point of law attempted to be raised, or the importance of the interests involved, is one of very grave character, and the parties who would be chiefly affected by its decision are not before the Court, and have no opportunity of being heard.”).


text:
    A.K. v. N.B.
    2070086.
    Court of Civil Appeals of Alabama.
    Dec. 17, 2010.
    Kimberly A. Clark, Dothan, for appellant.
    L. Jan Laney, Dothan, for appellee.
   On Remand from the Alabama Supreme Court

PITTMAN, Judge.

On June 30, 2010, the Alabama Supreme Court issued an opinion quashing its writ of certiorari in this cause. Ex parte N.B., 66 So.3d 249 (Ala.2010). In that opinion, the Alabama Supreme Court, reasoning that there existed no justiciable controversy in the juvenile court, directed this court to vacate our judgment in this appeal and to dismiss the appeal with instructions to the Houston Juvenile Court similarly compelling vacatur. In compliance with the mandate of the Alabama Supreme Court, we now vacate our judgment and dismiss the appeal with instructions that the juvenile court’s orders and judgments forming the basis for this appeal be vacated.

JUDGMENT VACATED; APPEAL DISMISSED WITH INSTRUCTIONS.

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


text:
    Ray E. MAXWELL and Dana Maxwell v. Jerry S. BOYD and Nicole Boyd.
    2090318.
    Court of Civil Appeals of Alabama.
    Dec. 17, 2010.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellants.
    F. Michael Haney of Inzer, Haney & McWhorter, P.A., Gadsden, for appellees.
   PITTMAN, Judge.

This appeal, transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6), concerns the enforceability of a residential restrictive covenant.

In February 2005, Ray E. Maxwell and Dana Maxwell, the owners of a residential lot in the Etowah County subdivision known as “The Highlands,” filed a civil action in the Etowah Circuit Court naming as defendants the occupants of an adjacent lot, Jerry S. (Steve) Boyd and Nicole Boyd. The Maxwells sought injunctive relief prohibiting the Boyds from undertaking construction of, or compelling removal of, a garage that, the Maxwells contended, would violate restrictive covenants filed of record with the Etowah County probate office; specifically, the complaint alleged that the proposed structure would violate a covenant barring buildings “nearer than 15 feet to an interior lot line.” The Boyds filed an answer in which they admitted the existence of covenants restricting their use of their lot, but they averred that the restrictions were “not enforceable.” After an ore tenus proceeding, the trial court entered a judgment on October 7, 2009, granting the relief requested by the Maxwells, but it vacated that judgment on October 8, 2009, stating that that judgment had been entered in error. On October 23, 2009, the trial court entered a judgment denying the relief requested by the Maxwells, concluding that enforcement of the restrictive covenants would be “unjust and inequitable” based upon “the inconsistencies between the practices in the subdivision and the requirements of the restrictions!,] ... building practices within the neighborhood directly across the street from the Boyd and Maxwell property, and the lack of evidence of significant economic impact upon the Maxwell property.” The Maxwells appeal following the denial of their postjudgment motion to alter, amend, or vacate the judgment.

When ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the trial court’s findings on issues of fact, and a judgment based on such findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. E.g., Traweek v. Lincoln, 984 So.2d 439, 442 (Ala.Civ.App.2007). That said, a presumption of correctness is not indulged when the trial court improperly applies the law to the facts, nor when the pertinent question involves the application of law to essentially undisputed facts. Id. at 442-43.

The record reveals that in December 1994 Nancy C. Becker, who owned the property upon which “The Highlands” was to be developed, filed of record in the Etowah County probate office a four-page document indicating that she “intend[ed] to sell the property[,] restricting it in accordance with a common plan designed to preserve the value and qualities of the land for the benefit of its future owners.” The covenants contained in that document included, among other things, a restriction of the use of the land to solely residential purposes rather than for business purposes, a mandate that all homes have an attached garage providing for “side, rear entry, or 45 degree entry,” and a requirement that “[n]o building shall be located nearer than 15 feet to an interior lot line.” The document also provided for the appointment of a committee consisting of at least three owners of lots in “The Highlands” after nine homes had been constructed and sold there; although the committee was “to oversee compliance with the provisions of [the] restrictions,” the record reflects that no such committee has ever been formed.

The Maxwells purchased their lot in “The Highlands” in 1995 from Becker, and their deed expressly referred to the recorded covenant document. The Boyds received a deed to a lot in “The Highlands” adjacent to the Maxwells’ property in April 2007; although the Boyds did not receive their lot directly from Becker, the deed that they did receive expressly noted that the conveyance was “[s]ubject to easements, restrictive covenants, and ad valo-rem taxes of record” (emphasis added). Although one of the co-grantors named in the Boyds’ deed testified at trial that a copy of the recorded covenant document had been provided to the Boyds at the closing of their conveyance transaction and that her husband (the other co-grantor) had informed the Boyds that the document contained subdivision restrictions, Steve Boyd testified that he did not believe that he had been provided a copy of that document at closing, and both he and Nicole Boyd testified that they had first become aware of the document when it had been provided to them by their building contractor.

At trial, Dana Maxwell testified that on November 11, 2008, she had noticed that two pine trees that had been located along the common border of the parties’ properties had been cut down and that “batter boards” and orange spray paint had been deployed on the Boyds’ property; at that time, Dana Maxwell had engaged the contractor in a conversation and had informed him that the construction would violate the subdivision regulations in the covenant document (a copy of which she also provided to the contractor). On that date, Dana Maxwell testified, no cement had been poured at the construction site. Nicole Boyd testified that the contractor had affixed the covenant document to the back door of the Boyds’ residence and had informed the Boyds of the existence of complaints by neighbors.

According to Dana Maxwell, within one or two weeks of her having notified the contractor of the nonconformity of the project at its outset, Steve Boyd had come over to her home and had brought a copy of the covenant document with him. Steve Boyd stated during that visit that his copy of the covenant document bore no date and that he had unsuccessfully looked for the recorded copy of the covenant document; he also stated that he would engage an attorney and would “do the right thing.” Dana Maxwell testified that she had emphasized during their conversation that she had no objection to construction of a garage so long as it conformed to the prevailing covenants.

When it became apparent that the Boyds would not desist from constructing their garage (which undisputedly faces the front of the Boyds’ lot and is located less than three feet from the common boundary of the Boyds’ lot and the Maxwells’ lot), the Maxwells engaged the services of an attorney. The Maxwells’ attorney sent the Boyds a letter on December 11, 2008, just after the concrete foundation of the garage had been laid, noting that the garage under construction violated the terms of “one or more” of the restrictions contained in the covenant document and informing them that “[vjiolation of [the] restrictions can have serious consequences.” A second letter was sent by the Maxwells’ attorney on January 21, 2009, notifying the contractor (who had had to enter the Max-wells’ lot in order to perform work on the garage because of the proximity of the garage to the common property line of the Boyds’ and the Maxwells’ lots) that the construction, in the Maxwells’ opinion, violated the restrictions in the covenant document and informing him that his and his agents’ use of the Maxwells’ property would not be tolerated. However, despite those letters, construction on the garage continued until suit was filed.

At trial, Ray Maxwell testified that the existence of restrictive covenants at “The Highlands” had played a “major role” in his 1995 decision to purchase the Max-wells’ lot, and he noted that development in Etowah County had tended to be haphazard. He objected to the Boyds’ garage, describing it as an “eyesore” that adversely affected the marketability of his lot, and noted that although certain other covenants in force at “The Highlands” had not been strictly complied with, it was important to him that the Boyds’ garage was located along his property line. Ray Maxwell also testified that he knew of no other building or improvement in the subdivision that violated the 15-foot setback covenant, although he admitted during cross-examination that a home located in “The Highlands” and several homes located in the “Morris Acres” subdivision across the street from the Maxwells’ home appeared to have front-facing garages and that other lots in “The Highlands” appeared to have outbuildings and other nonconforming aspects of vai'ying degrees of permanency. Both Ray Maxwell and Dana Maxwell testified that the garage, which is a two-story structure accommodating the Boyds’ four motor vehicles on its first floor with an additional upstairs “bonus room” and a full roof, had caused a great deal of water to be deposited on their lot, including near where a garden had been maintained.

Nicole Boyd admitted at trial that she had no survey or personal knowledge showing that any other permanent building or improvement in “The Highlands” violated the 15-foot side-setback covenant. Steve Boyd, however, testified that the lot adjacent to the Boyds’ lot on the opposite side from the Maxwells’ lot contained a utility outbuilding that was two feet from the common boundary line of those lots, according to his measurements, and he stated that, among other claimed covenant violations, there appeared to be a total of four outbuildings and one home that were located closer than 15 feet to adjacent lots. Steve Boyd further opined that the garage would not adversely affect the value of the Maxwells’ property, and he testified that to tear down the garage would work an extreme hardship. On cross-examination, however, Steve Boyd admitted that “The Highlands” remained a “fairly neat, organized,” and “generally residential” subdivision, that the Boyds’ home formerly had a two-ear garage, that he had not measured any buildings in the subdivision for compliance with the 15-foot setback restriction other than the one adjacent to the Boyds’ lot on the other side, and that the Boyds’ contractor had priced his services upon a “time and materials” basis (ie., an hourly labor rate plus the actual cost of materials used) and could have stopped working at any time the Boyds directed.

The Maxwells correctly note that under Alabama law, when the language of a restrictive covenant is not “of doubtful meaning and ambiguous,” the language of that covenant “is entitled to be given the effect of its plain and manifest meaning.” Laney v. Early, 292 Ala. 227, 231-32, 292 So.2d 103, 107 (1974). Thus, “[i]f ‘there is no inconsistency or ambiguity within a restrictive covenant, the clear and plain language of the covenant is enforceable by injunctive relief ” such as that sought by the Maxwells. Hipsh v. Graham Creek Estates Owners Ass’n, Inc., 927 So.2d 846, 848 (Ala.Civ.App.2005) (quoting Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997)). Laney further makes clear that that proposition of law is to take precedence over the disfavor that courts harbor toward restrictions of the use of land as a general matter. 292 Ala. at 231, 292 So.2d at 107.

In this case, the Boyds do not contend that their structure complies with the setback covenant or that the setback covenant is of doubtful meaning or ambiguous. Rather, they seek refuge in the common-law doctrine of “undue hardship” most notably recognized in Alabama in Lange v. Scofield, 567 So.2d 1299 (Ala.1990). The holding in Lange, in pertinent part, is based upon the doctrine that enforcement of covenants running with land “ ‘is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust’ specifically, if “ ‘the restrictive covenant has ceased to have any beneficial or substantial value’ ” or “ ‘the defendant will be subject to great hardship or the consequences would be inequitable,’ ” a court of equity will not enforce the covenant. 567 So.2d at 1302 (quoting 20 Am.Jur.2d Covenants, Conditions, & Restrictions § 313 (1965)). That said, however, the “relative hardship” doctrine recognized in Lange is a creature of equity, and it follows that seeking the invocation of the doctrine will require the possession of clean hands. Cf. Hankins v. Crane, 979 So.2d 801, 812 (Ala.Civ.App.2007) (indicating availability of unclean hands as defense to covenant-enforcement action, but concluding that no factual basis for the defense existed in that case). Equity 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.” ’ ” Id. (quoting earlier Alabama cases).

A pertinent specific application of the clean-hands doctrine is that a restrictive covenant should be enforced if the defendant had knowledge of it before constructing an improvement contrary to its provisions, even if the harm is disproportionate. Green v. Lawrence, 877 A.2d 1079, 1082 (Me.2005) (citing 9 Powell on Real Property § 60.10(3)); accord Turner v. Sellers, 878 So.2d 300, 306 (Ala.Civ.App.2003) (affirming denial of relief from restrictive covenant when the burdened parties “knew that there were restrictions on the free use of their lot when they purchased it”). The knowledge sufficient to warrant denial of the relative-hardship defense need not be actual, but may be constructive. Miller v. Associated Gulf Land Corp., 941 So.2d 982, 989 (Ala.Civ.App.2005) (noting that trial court’s judgment denying relief from covenant was supported by evidence that the owners of the burdened lot had “purchased the subject property knowing of the nature of the deed restriction and therefore at least constructively knowing” of nearby land conditions and property owners’ rights).

In this case, the Maxwells adduced undisputed evidence showing that the deed conveying the Boyds’ lot to them in 2007 bore a reference to the limiting effect of “restrictive covenants ... of record” upon the extent of their ownership interest as to that lot. Although the Boyds’ attorney apparently experienced difficulty locating the covenant document in the Etowah County probate records, there is no dispute that the document was of record in 2007, and the proper recording of an instrument in the probate court that relates to an interest in real property, such as the covenant document, constitutes constructive notice “to all the world” of the contents of the instrument. Haines v. Tonning, 579 So.2d 1308, 1310 (Ala.1991) (citing Ala.Code 1975, § 35-4-90). Further, the Boyds’ constructive notice was bolstered by their actual notice of the existence of the covenant document provided to them by their contractor at the outset of construction after he had been provided a copy by Dana Maxwell and the letters sent by counsel for the Maxwells to the Boyds and their contractor. Although the Boyds had constructive and actual notice of the covenant barring their proposed structure, they elected to proceed with construction to the point of expending approximately $100,000 in building a four-car garage that clearly and undisputedly violates the covenant.

In addition, as was the case in Turner, swpra, the covenant at issue applies throughout the pertinent subdivision and controls the development of each lot therein; thus, “the equity of permitting relief from the restrictive covenant in this case must be evaluated in broader terms than just its effect on the [Maxwells].” 878 So.2d at 306. Although there is disputed evidence that at least one lot in “The Highlands” contains a permanent structure that does not comply with the 15-foot setback covenant, the garage in this case, which extends to a point approximately 3 feet from the Maxwells’ lot, undisputedly causes special damage to the Maxwells in the form of increased water drainage onto their lot, a fact that warrants their special concern for this covenant in this particular case. The trial court’s judgment, in effect, negates the future enforceability of the setback requirement throughout the subdivision regardless of any similar negative consequences that might flow in individual cases from such encroachments. We thus cannot conclude that substantial evidence supports the trial court’s judgment to the extent that that judgment was based upon the “relative hardship” doctrine as recognized under Alabama law.

The Boyds also appear to contend that the trial court’s judgment is supported by that portion of Lange that recognizes “changes of conditions,” or “changes in the neighborhood,” as a basis for preventing prospective enforcement of a restrictive covenant. Although the Boyds make that contention in the context of their overarching “relative hardship” position, this court has recognized that “the change-in-the-neighborhood test and the relative-hardship test are independent” bases for denying equitable enforcement of a covenant. AmSouth Bank, N.A. v. British W. Florida, L.L.C., 988 So.2d 545, 554 (Ala.Civ.App.2007). However, under La- ney, a claimed “ ‘change in character of the neighborhood sufficient to defeat a restrictive covenant must have been so great as to clearly neutralize the benefits of the restriction to the point of defeating the object and purpose of the covenant’ further, “ ‘changes outside of the restricted area should not be allowed to defeat the purposes of the restriction.’ ” 292 Ala. at 233, 292 So.2d at 108 (emphasis added).

In this case, the homes across the street from the Maxwells’ and the Boyds’ lots are not subject to the restrictions contained in the covenant document, and, thus, under Laney, they are not material to the change-in-conditions inquiry. Further, the disputed evidence of isolated encroachments in “The Highlands” contravening the covenant against structures less than 15 feet from side-lot lines does not amount to substantial evidence indicating that such a fundamental change in the character of that subdivision — one that would neutralize the benefits of the side-lot restriction— had taken place since the recording of the covenant document in December 1994, less than 15 years before the trial court’s judgment was entered.

Based upon the foregoing facts and authorities, we conclude that the trial court’s judgment amounts to an improper application of the law to the undisputed facts and that that judgment is clearly erroneous. We therefore reverse the judgment, and we remand the cause for the entry of a judgment in conformity with this opinion.

REVERSED AND REMANDED.

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

      . Although the second defendant listed in the complaint was identified in the complaint as “Stephanie Nicole Dickson,” we have identified her using the name that she gave at trial.

      . Although our reversal of the judgment obviates any need to consider the prejudicial ef-feet of the error, we note that the Maxwells requested a hearing on their postjudgment motion, but their motion was erroneously denied by the trial court without a hearing. See Rule 59(g), Ala. R. Civ. P.

      . The testimony of Steve Boyd and Ray Maxwell was in conflict regarding whether those outbuildings were structures of a permanent nature.

      . We note that the Boyds cite no caselaw, and we are aware of none, conditioning the applicability of that essential rule of law to situations in which a "common plan” is claimed not to exist or in which a homeowners’ association has not been formed to serve as a separate and independent covenant-enforcement agent for local landowners.

      . To the extent that Laney may conflict with AmSouth Bank or any other case decided by this court as to the pertinent geographic scope of changed conditions to be considered, we are, of course, bound by Laney. See Ala. Code 1975, § 12-3-16.