author: WOODALL, Justice.

text:
    SELZER AUTOMOTIVE, L.P. v. CUMBERLAND PLASTIC SYSTEMS, LLC.
    1090068.
    Supreme Court of Alabama.
    Aug. 6, 2010.

      C. Steven Ball and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellant.
    Mitchel H. Boles, Jeffrey E. Holmes, and Anita Kay Head of Johnston Barton Proctor & Rose LLP, Birmingham, for appellee.
   WOODALL, Justice.

Selzer Automotive, L.P. (“Selzer”), a foreign limited partnership whose parent company is a German corporation, appeals from an order denying its motion to compel arbitration of its dispute with Cumberland Plastic Systems, LLC (“Cumberland”). We reverse and remand.

I. Procedural Background

On July 8, 2008, Cumberland and Selzer executed a contract whereby Selzer would purchase from Cumberland certain component parts for products to be manufactured by Selzer. The contract contained the following pertinent provisions relating to arbitration:

“17. Arbitration.
“In the event of any dispute between the parties arising under or relating to these Terms and Conditions, including, without limitation, if the parties are unable to agree on any matter for which agreement is required under an Order, or if either party is in default hereunder, such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the American Arbitration Association (‘AAA’), as then in effect. Each party shall pay one-half of the deposit required by AAA....
“18. Jurisdiction; Venue.
“Notwithstanding the provisions in paragraph 17, above, for purposes of injunc-tive relief with regard to any dispute relating to the sale and/or shipment of any Goods or Services under any Order, or should arbitration not be available, [Cumberland] irrevocably ... agrees and consents to the sole and exclusive jurisdiction of the courts of the State of Alabama....”

(Emphasis added.)

Subsequently, a dispute arose over Sel-zer’s alleged nonpayment of invoices submitted by Cumberland, and, on February 25, 2009, Cumberland filed a demand for arbitration before the American Arbitration Association (“the AAA”), claiming an amount in dispute of $607,289.86. The only portion of the contract Cumberland enclosed with its arbitration demand was page eight, which contained the arbitration provisions.

On March 11, 2009, the International Centre for Dispute Resolution (“the ICDR”), which is the international division of the AAA, sent a letter to Cumberland and Selzer acknowledging receipt of Cumberland’s demand for arbitration. The letter stated, in pertinent part:

“Please note that you are receiving this letter because our administrative filing requirements have not been met. Therefore no Statement of Defense or Counterclaim is due at this time. Once all filing requirements have been met, you will be notified by a case manager of the appropriate response dates. The Parties are requested to provide us with the following documents/payments:
“1. ... [W]e kindly ask [Cumberland] to provide the ICDR ... with a copy of the entire contract by close of business March 23, 2009.
“2. Pursuant to the ICDR’s fee schedule ‘an initial filing fee is payable in full by a filing party ...’ This will confirm receipt of $8,000.00 from [Cumberland]. The filing fees for the claim amount of $607,239.36 is $6,000. We note that the Arbitration Agreement provides that ‘[e]ach party shall pay one-half of the deposit required by AAA.’ [Cumberland] advised the ICDR that this includes the filing fees. If [Selzer is] in agreement, we ask that [Selzer] remit the balance of the filing fee in the amount of $3,000.00 by close of business March 23, 2009. Otherwise, [Cumberland] should remit this amount before March 31, 2009, in order for this matter to be properly filed.
“Upon receipt of the above the ICDR will proceed with administration of this case. If we do not receive the requested information/payment by said deadlines, we will return all paperwork and will not consider this matter properly filed.”

(Emphasis omitted; other emphasis added.)

By April 15, 2009, neither party had paid the additional $3,000 requested by the ICDR. On that day, counsel for Cumberland sent the ICDR the following e-mail:

“In response to your e-mail correspondence, I would like to point out that [Selzer] failed to comply with the arbitration provision contained in the agreement in that [it] would not submit [its] portion of the filing fee. It was [Selzer], not Cumberland, who elected not to go forward with the process. I would appreciate your noting this for the file. If you deem it necessary to clarify your letter dated today, please forward this email to [Selzer].”

Three minutes later, the ICDR replied to the e-mail from Cumberland’s counsel, as follows:

“Thank you very much for this e-mail which I have made part of the file. The fact that [Selzer has] not paid filing fees is duly noted.
“Please note that whenever an arbitration agreement provides for the Respondents) to bear all or part of the filing fees and does not pay, the Claimant has the burden to decide whether Claimant wants to also advance Respondent(s)’s filing fee in order to initiate the process. Claimants then tend to add this position to their statement of claim.
“On another note, I do recall that the split of filing fees was not completely unambiguous and would have needed the arbitrator’s attention in case of a dispute on this issue. Ergo, any clarification we could provide would not have much of value and could be interpreted as a decision on this point.
“That said and if you deem it necessary, please feel free to share your e-mail below with [Selzer] to play it safe.
“On another note, should the court send this matter back to arbitration, please contact either me or my colleague Tom Simotas ... to speed up the process.”

(Emphasis added.)

That same day, the ICDR sent the parties a letter, stating, in pertinent part:

“Dear Parties,
“[Cumberland’s] Counsel advised us on April 14, 2009, via telephone that [Cumberland] no longer wishes to pursue this matter. Therefore, we have deleted the above captioned matter from our records.
“We have enclosed check no. 1276 in the amount of $3,000.00 as this matter has never reached the stage of commencement and, accordingly, the partial filing fees paid by [Cumberland] are fully refundable.
“We thank the parties for having chosen the ICDR as its ADR provider and hope to do business with you again in the future.”

(Emphasis added.)

In fact, as of April 3, 2009, Cumberland had already commenced the underlying action against Selzer in the Lee Circuit Court. Selzer subsequently filed a motion to compel arbitration of the dispute. In response to that motion, Cumberland asserted that Selzer’s failure to match Cumberland’s $3,000 filing fee “rendered [arbitration] unavailable,” thereby entitling Cumberland to a judicial forum for its claims. Cumberland also argued that Sel-zer was “judicially estopped” to now compel arbitration. The trial court denied Sel-zer’s motion to compel arbitration, and Selzer appealed.

II. Discussion

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752-53 (Ala.2002) (quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999) (emphasis omitted)).

“The party seeking to compel arbitration has the initial burden of proving the existence of a written contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce.” Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). It is undisputed that Selzer has met its burden as to these prerequisites.

“‘“[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” ’ ” Kenworth of Birmingham, Inc. v. Langley, 828 So.2d 288, 290 (Ala.2002) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)). Cumberland has never maintained that the agreement is invalid or that it does not apply to this dispute. It merely reiterates its assertion that Selzer’s failure to pay its alleged share of the filing fee to the ICDR “rendered [arbitration] unavailable” and that, because of such nonpayment, Selzer is “judicially estopped” to compel arbitration. Neither ground has merit.

It is abundantly clear that there was no impediment to arbitration that was beyond the control of Cumberland itself. In its letter of March 11, 2009, the ICDR clearly informed the parties that if Selzer did not pay the disputed second installment of $3,000, then Cumberland should do so. Similarly, in its e-mail of April 15, 2009, to Cumberland’s counsel, the ICDR suggested that respondents in arbitration proceedings sometimes balked at paying their share of the filing fee, but that, in such cases, it was common for the party seeking arbitration to pay the disputed portion and to seek to recoup it as part of the recovery. Finally, the ICDR’s letter to the parties on April 15, 2009, makes clear the fact that it was Cumberland that “no longer wish[ed] to pursue [the] matter” in arbitration. In that same connection, the ICDR indicated in an e-mail to Cumberland’s counsel that it stood ready to take up the matter again “should the court send [the] matter back to arbitration.”

The right to arbitration would be all but illusory if the process turned on the unqualified cooperation of both parties from the outset. Indeed, threshold procedural questions such as the one here involved are for the arbitrator to resolve. “ ‘Procedural arbitrability’ ... involves questions that grow out of the dispute and bear on its final disposition, e.g., defenses such as notice, laches, estoppel, and other similar compliance defenses; such questions are for an arbitrator to decide.” Brasfield & Gorrie, L.L.C. v. Soho Partners, L.L.G., 85 So.3d 601, 604 (Ala.2009). ‘““[I]n the absence of an agreement to the contrary, issues of ... procedural arbi-trability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met are for the arbitrators to decide.” ’ ” Id. at 606 (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002), quoting in turn Revised Uniform Arbitration Act of 2002, § 6, comment 2, 7 U.L.A. 13 (Supp.2002)(emphasis omitted)).

According to Selzer:

“[Cumberland] chose not to continue pursuing the arbitration, using as an excuse that [it] did not believe [it] should have to pay the entire filing fee. As noted by ICDR, that dispute would have been properly addressed by the arbitrator. If [Cumberland] prevailed, then the claimed portion of the filing fee would have been part of [Cumberland’s] recovery. [Cumberland] cannot simply abandon the arbitration process, which [it] initiated, and then blame Selzer because the arbitration did not take place.”

Reply brief, at 7-8. We agree. The mere abandonment of its claim before the ICDR does not afford Cumberland a basis upon which to claim that the arbitral forum is now not available to Selzer.

We are likewise unpersuaded that Selzer is judicially estopped to compel arbitration of this dispute. “The doctrine of judicial estoppel exists to ‘ “protect[ ] the integrity of the judicial system, not the litigants.” ’ ” Hughes v. Mitchell Co., 49 So.3d 192, 203 (Ala.2010) (quoting Ex parte First Alabama Bank, 883 So.2d 1236, 1243 (Ala.2003), quoting in turn Burnes v. Perneo Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir.2002) (emphasis added)). Application of the doctrine of judicial estoppel is triggered when there is (1) a prior judicial or quasi-judicial proceeding, Singley v. Bentley, 782 So.2d 799, 803 (Ala. Civ.App.2000), (2) in which a party successfully asserted a position that is (3) contrary to the position asserted by that party in a later proceeding, and in which (4) the party would ‘“derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ” Ex parte First Alabama Bank, 883 So.2d 1236, 1245 (Ala.2003) (quoting New Hampshire v. Maine, 532 U.S. 742, 751, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)).

Selzer argues that “there has been no prior judicial proceeding ” or, in fact, any “prior proceeding of any kind. As made clear by the ICDR, the arbitration proceeding was never properly initiated. There is simply no application of the doctrine of judicial estoppel in this case.” Sel-zer’s brief, at 17 (emphasis added). We agree. The doctrine of judicial estoppel does not preclude an order compelling arbitration of Cumberland’s claims.

III. Conclusion

For the foregoing reasons, the trial court erred in denying Selzer’s motion to compel arbitration. Consequently, its order denying the motion is reversed, and the cause is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Albert W. KEY v. Eleanore K. ALLISON and Baldwin County.
    1090582.
    Supreme Court of Alabama.
    Dec. 17, 2010.
    Rehearing Denied April 15, 2011.

      Taylor D. Wilkins, Jr., of Wilkins, Bank-ester, Biles & Wynne, Bay Minette, for appellant.
    J. Casey Pipes and Annie J. Dike of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellee Eleanore K. Allison.
    Frank E. Bankston, Jr., of Webb & Eley, P.C., Montgomery; and J. Scott Barnett and E. Erich Bergdolt, Baldwin County Legal Department, for appellee Baldwin County.
   COBB, Chief Justice.

Albert W. Key appeals from a judgment as a matter of law entered on his claims against Eleanore K. Allison and Baldwin County. We reverse and remand.

Facts and Procedural History

A walkway known locally as “the boardwalk” extends alongside the bay side of a number of privately owned bayfront properties along Mobile Bay in Point Clear from south of Zundel’s Lane northward to the Grand Hotel, a distance of about one mile. The boardwalk has been in existence and in use by the residents of Point Clear and the general public for over 100 years. The boardwalk was originally constructed of wooden boards, but it is currently composed of various materials, including boards and concrete, and in some places it is simply an unimproved path across the sand. Property owners along the boardwalk have historically maintained the portion of the boardwalk that crossed their property in accordance with their own wishes and judgment.

The landward side of the bayfront properties that the boardwalk crosses abuts Scenic Highway 98. Any destination that can be reached by the boardwalk can also be accessed by Scenic Highway 98. At the time of the trial of this case, the portion of Scenic Highway 98 that parallels the boardwalk did not have a sidewalk or a shoulder that could be used for pedestrian traffic. However, at the time of the trial of this case, plans existed to create a bike path along Scenic Highway 98, which could also be used by pedestrians.

For approximately 20 years, Key has lived on the bay in a house just south of Zundel’s Lane, which runs perpendicular to Scenic Highway 98. Key is familiar with the boardwalk, and he uses it regularly. Key knows of no one who has ever requested or received permission to use the boardwalk. In the past, Key regularly used the boardwalk to travel by foot between his house and his office, which is located north of the Grand Hotel. Members of his family, including his children and grandchildren, have also used the boardwalk for beach access and to travel by foot and on bicycle to various destinations along the bay.

In 1987, Allison purchased the bayfront property just north of Zundel’s Lane. She moved a house onto the property and has since lived there. The public has historically accessed the boardwalk north of Zun-del’s Lane through a gap in a fence that runs along Allison’s southern property line. The part of the boardwalk that crosses Allison’s property is composed of concrete slabs. According to Allison, “lots of people” have asked her for permission to use the part of the boardwalk that traverses her property. She testified at trial that the people who asked for permission “usually ... were from like Germany or something.”

In 2004, Hurricane Ivan damaged the portion of the boardwalk on Allison’s property. Allison’s pier was also destroyed in Hurricane Ivan, and Allison stacked the boards from the pier on the damaged concrete slabs that had been the boardwalk by her house. Afterward, people using the boardwalk walked around Allison’s stack of boards.

At some point, Key and his wife asked Allison to move the stack of boards from the area of the boardwalk. Allison did not move the stack of boards; instead, she boarded up the gap in her fence, effectively blocking public access to the boardwalk north of Zundel’s Lane.

On June 10, 2008, Key sued Allison, seeking a judgment declaring that “the boardwalk is a dedicated public walkway” across Allison’s property and declaring that Key has a legal right to maintain and repair the portion of the boardwalk that crosses Allison’s property. In addition, Key sought an order enjoining Allison from interfering with his repairs to that portion of the boardwalk or from interfering with access to the boardwalk through a gate Key proposed be installed in her fence by Key. On August 6, 2008, Key amended his complaint to add Baldwin County as a defendant.

On July 9, 2009, a bench trial was held. Joey Dunley, an engineer for Baldwin County, testified at trial that the boardwalk had been in existence for approximately 100 years. Dunley had studied the history of the boardwalk in preparation for his testimony on behalf of the County at trial.

John Brodbeck, an 83-year-old resident of Point Clear who was born and reared in the area, testified that the boardwalk had been in existence and used by the public for as long as he could remember. Brod-beck testified that he had used the boardwalk throughout his life and that, to his knowledge, neither he nor anyone else had ever asked for or obtained permission to walk on the boardwalk. According to Brodbeck, other than Allison’s recent closure of her portion of the boardwalk, no property owner along the boardwalk had ever attempted to close the boardwalk or to prevent members of the general public from using it.

The trial transcript includes the following exchange from Brodbeck’s testimony:

“Q [Allison’s counsel]: In your experience using the boardwalk, isn’t it true it was your understanding that you always had the consent or the permission of whoever owned the property to walk along there?
“A [Brodbeck]: No, no.
“Q: You thought you were going on it against the wishes of the landowner?
“A: No, no. Most people along there invited you to walk the boardwalk, they were proud of it.
“Q: That’s what I mean. The boardwalk was installed at the owners’ expense, correct?
“A: Oh, yeah, yeah.
“Q: They improved it and maintained it and encour—
“A: But they did it for the public.
“Q: Exactly. And they encouraged people to walk on it, correct?
“A: Yeah.
“Q: And you’re not saying that anyone other than the adjoining owner worked to improve the boardwalk, to build the boardwalk out of wood or whatever it was built out of?
“A: Well, most people took enough pride in their property that they maintained it themselves.
“Q: Right. You’re not aware of any instance where anyone else maintained it for them, are you?
“A: Not right off, I haven’t been aware of it.”

Key likewise testified at trial that members of the public used the boardwalk without asking for permission to do so. His testimony on this point is reflected in the following exchange:

“Q [Allison’s counsel]: Is there anything more that could have been done by Ms. Allison or by her predecessors in title to make people think they were welcome to walk along the boardwalk in front of her property?
“A [Key]: I don’t — Other than putting up a sign, you know, I mean, it was— There was never any question that people could walk there.
“Q: It opened straight onto Zundel’s Lane, it was a paved, level — not paved, it was concrete, level sidewalk. I mean, there was no reason to think any owner was discouraging or in any way trying to discourage people from walking across it, was there?
“A: No.”

On January 7, 2010, the trial court entered a judgment in favor of Allison on all claims, finding that Key had failed to carry his burden of proving the existence of a private easement or a public easement either by dedication or by “public use of [the boardwalk] over a period of twenty years because the public’s use of the boardwalk was consensual and with the express or implied permission of ... Allison and her predecessors in title.” On January 26, 2010, Key filed a notice of appeal to this Court.

Standard of Review

When evidence is presented ore tenus, the trial court is “ ‘uniquely] positioned] to directly observe the witnesses and to assess their demeanor and credibility.’ ” Ex parte T.V., 971 So.2d 1, 4 (Ala. 2007) (quoting Ex parte Fann, 810 So.2d 631, 638 (Ala.2001)). Therefore, a presumption of correctness attaches to a trial court’s factual findings premised on conflicting ore tenus evidence. Ex parte J.E., 1 So.3d 1002, 1008 (Ala.2008). However, “ ‘[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ ” State v. Hill, 690 So.2d 1201, 1203 (Ala.1996) (quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980)). Because the evidence here was undisputed, the ore ten-us rule is inapplicable and our review is de novo.

The trial court here made no findings of fact. When evidence is presented ore tenus and the trial court makes no express findings of fact, this Court will assume that the trial court made those findings necessary to support its judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., 578 So.2d 1061 (Ala.1991)).

We further note that “the ore tenus standard of review has no application to a trial court’s conclusions of law or its application of law to the facts; a trial court’s ruling on a question of law carries no presumption of correctness on appeal.” Ex parte J.E., 1 So.3d at 1008 (citing Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), and Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)). This Court “‘review[s] the trial court’s conclusions of law and its application of law to the facts under the de novo standard of review.’ ” Id. (quoting Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005)).

Analysis

A public prescriptive easement is created when the public, under a claim of right, adversely uses an open, defined roadway for an uninterrupted period of 20 years or more without objection or hindrance from the landowner. Osborn v. Champion Int’l Corp., 892 So.2d 882, 885 (Ala.2004); Newell v. Dempsey, 219 Ala. 634, 634, 122 So. 881, 881-82 (1929); Locklin v. Tucker, 208 Ala. 155, 155, 93 So. 896, 896-97 (1922). When such circumstances are shown, and the roadway lies across improved or reclaimed land, “ ‘a presumption of dedication or other appropriation to a public use arises. The burden is then on the landowner to show the user was permissive only, in recognition of his title and right to reclaim the possession. Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954).’ ” Osborn, 892 So.2d at 885 (quoting Ford v. Alabama By-Prods. Corp., 392 So.2d 217, 218 (Ala.1980)).

The boardwalk is an “open, defined roadway.” Cf. Davenport v. Cash, 261 Ala. 380, 382, 74 So.2d 470, 470 (1950) (noting that, throughout various legal definitions of the terms “public road” and “highway,” “there seems to be running the general idea of a current way of public passage”). It crosses Allison’s backyard, which qualifies as improved or “reclaimed” land. According to the testimony of the county engineer for Baldwin County, who was familiar with the history of the boardwalk, the public had used the boardwalk for more than 100 years preceding the trial of this case. The evidence at trial indicated that, during that 100-year period, until Allison closed the gap in the fence, the public’s use has been without objection or hindrance from Allison or her predecessors in interest. Therefore, a presumption of dedication or other appropriation to a public use arises, and the burden shifted to Allison to overcome that presumption with evidence indicating that the public’s use of the boardwalk was “permissive only, in recognition of [her] title and right to reclaim the possession.” Osborn, 892 So.2d at 885.

Having thoroughly considered the evidence in the record in the light most favorable to the trial court’s judgment, see Transamerica, supra, we find no evidence from which the trial court could have inferred that, during the first 20 years the boardwalk existed, the use by the public was permissive. At most, the oldest record evidence of permissive use comes from 83-year-old John Brodbeck’s testimony of his childhood memories of using the boardwalk. Brodbeck testified that, from the days of his childhood, he and others never asked permission to use the boardwalk; Brodbeck also testified that the landowners along the boardwalk “invited” and “encouraged” the public to use the boardwalk.

It is clear from the record that Brod-beck’s testimony as to the nature of the public’s use of the boardwalk does not date back beyond 80 years. Because the record contains no evidence as to the nature of the public’s use of the boardwalk for the first 20 years of existence, no evidence exists to overcome the presumption that, for the first 20 years of the public’s more-than-100-year use of the boardwalk, the public used the boardwalk adversely under a claim of right, without the permission of the landowners and without recognition of the landowner’s right to reclaim the property on which the boardwalk lay. See Osborn, supra (explaining the burden of proof in a case involving a public easement by prescription over reclaimed lands). Accordingly, the only conclusion that can be drawn from the evidence in the record in this case is that an easement by prescription was created during the first 20 years of the existence of the boardwalk. See Osborn, supra (explaining the elements and burden of proof for establishing an easement by prescription), and a presumption of dedication to public use arose. Allison presented no evidence refuting that presumption. Thus, the trial court’s judgment is due to be reversed. State v. Hill, 690 So.2d at 1203. We note that Allison, Baldwin County, and Key are the only parties in this case. There are other landowners whose properties the boardwalk crosses and who are not parties to this case. We further note that those landowners could present evidence different from the evidence presented in this case with different results.

Conclusion

For the foregoing reasons, we reverse the judgment of the trial court, and we remand this case to the trial court for further proceedings consistent with this opinion, including a determination of the duty, if any, of Baldwin County to maintain the portion of the boardwalk determined here to be dedicated to the public use.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

LYONS and STUART, JJ., recuse themselves.

      . Only that portion of the boardwalk that crosses Allison's property is the subject of this action.


author: LYONS, Justice. MURDOCK, Justice

text:
    Darryl CLAYTON v. LLB TIMBER COMPANY, INC., and William George Henderson.
    1091427.
    Supreme Court of Alabama.
    Jan. 14, 2011.
    Rehearing Denied April 15, 2011.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for appellant.
    Alex L. Holtsford, Jr., and Jay S. Tuley of Holtsford Gilliland Higgins Hitson & Howard, P.C., Montgomery, for appellees.
   LYONS, Justice.

Darryl Clayton appeals from a judgment entered upon a jury verdict in favor of LLB Timber Company, Inc. (“LLB Timber”), and William George Henderson on Clayton’s negligence claims against them. Clayton contends that the trial court improperly charged the jury regarding mechanical failure and that the trial court erred in denying Clayton’s motion for a new trial. We reverse.

Factual Background and Procedural History

On October 23, 2006, Clayton, a commercial truck driver delivering a load from Chicago, Illinois, to Tallahassee, Florida, stopped at a truck stop in Hope Hull. After Clayton parked his truck, he took a nap in the back of its cab, where he had bunk beds for that purpose. Some time later, Henderson, a commercial truck driver for LLB Timber, drove his truck to the same truck stop in Hope Hull. Henderson parked his truck, left the engine running, and went into the store of the truck stop to buy a drink. Henderson testified at trial that when he parked the truck he set the brakes; he stated that he recalled hearing the distinct popping sound made by the air brakes on the truck when the parking brake is set. The brakes on Henderson’s truck were new; they had been installed just a few weeks before. Inside the store, Henderson chose a drink and went to pay the clerk. On his way to the counter, he glanced out the door and saw that his truck was gone. Henderson stated that he immediately left the store to see what had happened. He saw that his truck had rolled across the parking lot to where Clayton’s truck was parked. Clayton testified at trial that he had just awaked from his nap when he felt two jolts. He looked out the window of his truck and saw that his truck had been struck by another truck.

On September 30, 2008, Clayton sued LLB Timber and Henderson in the Montgomery Circuit Court, stating claims based on several theories of negligence and wantonness and seeking recovery for injuries Clayton claimed he received as a result of the accident. Most of the facts presented at trial were disputed. Clayton claimed that he suffered serious injuries to his back, neck, and left shoulder as a result of the accident. Henderson and LLB Timber maintained that Clayton was malingering and that he suffered only minor or no injuries. Clayton argued that Henderson had negligently failed to set the brakes on his truck. Henderson testified repeatedly that he was certain that he had set the brakes and that he did not know what had caused his truck to roll. Henderson also stated that he had not experienced any problems with the brakes on his truck before or after the accident. Henderson’s supervisor, Craig Nichols, a certified truck inspector, testified that he inspected Henderson’s truck after the accident and did not find anything wrong with the brakes. Nichols also testified that he had tried to recreate the accident, i.e., cause the truck to roll with the brakes set, but was unable to do so.

Over Clayton’s objection, the trial court, in its oral charge to the jury, gave the following instruction:

“It is the duty of the owner or the operator of a motor vehicle to see that it is reasonably safe and in a reasonably safe condition before operating it on a public highway; where, however, the owner or operator of the vehicle without knowledge of a defective condition, known or reasonably foreseeable, experiences mechanical failure and such mechanical failure is the sole proximate cause of the injury or damage, the owner or operator cannot be held liable therefor.”

Alabama Pattern Jury Instructions: Civil (“APJI”) 26.14 (mechanical failure) (2d ed.1993). Clayton’s objection to the charge was sufficient to preserve any error. The jury subsequently returned a verdict in favor of Henderson and LLB Timber, and the trial court entered a judgment on the verdict. Clayton moved for a new trial and, alternatively, to vacate the judgment. He argued that the trial court improperly charged the jury on mechanical failure, that the jury’s verdict was not supported by a preponderance of the evidence, and that the trial court erred in failing to grant Clayton’s motion for a judgment as a matter of law and, subsequently, his motion for a new trial. The trial court denied the motions, and Clayton appealed.

Analysis

On appeal Clayton argues, as he did below, that the trial court improperly instructed the jury regarding mechanical failure, that the jury’s verdict was not supported by a preponderance of the evidence, and that the trial court erred in failing to grant Clayton’s motion for a judgment as a matter of law and, subsequently, his motion for a new trial. This Court has stated:

“ ‘A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case.’ Pressley v. State, 770 So.2d 115, 139 (Ala.Crim.App.1999). Thus, ‘generally-speaking, the standard of review for jury instructions is abuse of discretion.’ Pollock v. CCC Invs. I, LLC, 933 So.2d 572, 574 (Fla.Dist.Ct.App.2006).”

Arthur v. Bolen, 41 So.3d 745, 749 (Ala.2010). This Court has also stated:

“Under Alabama law, ‘ “[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial.” ’ King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991) (citation omitted). When an objection to a jury charge has been properly preserved for review on appeal, as this one was, we ‘ “look to the entirety of the [jury] charge to see if there was reversible error,” ’ and reversal is warranted only if the error is prejudicial. King, 585 So.2d at 12.”

George H. Lanier Mem’l Hasp. v. Andrews, 809 So.2d 802, 806 (Ala.2001).

Clayton concedes that the mechanical-failure instruction given by the trial court is a correct statement of the law. He argues, however, that the trial court erred in giving the instruction because, he says, there was insufficient evidence of mechanical failure to support such an instruction. Clayton cites the “notes on use” to APJI 26.14, which state that the instruction is: “To be used in cases where defendant offers evidence of mechanical failure as a defense to the action.” (Emphasis added.) Clayton also relies on this Court’s decisions in Phillips v. Seward, 51 So.3d 1019 (Ala.2010), and Friedlander v. Hall, 514 So.2d 914 (Ala.1987).

In Phillips, the plaintiff, Mary Nell Phillips, was involved in a car accident with a vehicle driven by James Travis Seward who, while driving a truck owned by his employer, Heartland Express, Inc., struck the back of Phillips’s vehicle after Phillips had rolled forward slightly in a merging lane and then come to a stop. Phillips sued Seward and Heartland Express, Inc., and the jury entered a verdict for the defendants. On appeal, Phillips argued that the trial court had erroneously instructed the jury regarding the doctrine of contributory negligence. Specifically, Phillips argued that the defendants “failed to present substantial evidence that the accident in which she was injured was at least partly the result of her own negligence and that the trial court accordingly erred by charging the jury on contributory negligence.” 51 So.3d at 1024.

Concluding that Phillips had properly objected to the contributory-negligence instruction, this Court stated: “[W]e must determine whether, in fact, there was substantial evidence that Phillips was in some way negligent so as to justify the giving of the challenged instruction on contributory negligence.” 51 So.3d at 1025. This Court then stated the law regarding contributory negligence and noted that contributory negligence was an affirmative defense as to which the defendant had the burden of proof. After examining the evidence, this Court concluded that the defendants had not presented substantial evidence that Phillips had acted negligently and, therefore, that the trial court had erred in instructing the jury on the doctrine. This Court found the error prejudicial and reversed the judgment for the defendants and remanded the cause for a new trial.

In Friedlander, Amelia Friedlander’s vehicle was struck from the rear by a vehicle driven by Mary Alyce Hall. Hall testified at trial that she did not see Fried-lander’s vehicle, which was stopped in traffic, until the vehicle between Hall’s vehicle and Friedlander’s vehicle turned to the right and that, by that time, it was too late for her to stop. Friedlander sued Hall, and, at trial, over Friedlander’s objection, the trial court instructed the jury regarding the sudden-emergency doctrine. The jury subsequently rendered a verdict for Hall, and Friedlander appealed.

This Court noted that Friedlander did not “argue that the instruction given was an incorrect statement of law, but [did] contend that it was improper for the trial court to give this charge in this case.” 514 So.2d at 915. This Court examined the facts of the case and concluded:

“From our review of the record, we are unable to detect any evidence to support the contention that this case involved a sudden emergency. There was no unusual or sudden occurrence that a driver on a crowded municipal street should not anticipate or expect in the ordinary course of congested urban travel. Consequently, we are of the opinion that the jury was erroneously instructed on the sudden emergency doctrine.
“We are mindful that jury verdicts are presumed to be correct, and that the presumption of correctness is strengthened where the trial court denies a motion for new trial. Guthrie v. McCauley, 376 So.2d 1373 (Ala.1979). However, having found that the trial court, under the circumstances of this case, committed reversible error by instructing the jury on sudden emergency, we need not address the issue of the trial court’s denial of Mrs. Friedlander’s motion for new trial on the ground that the verdict was not supported by the evidence.
“Therefore, the judgment of the trial court is to be reversed and the cause remanded for a new trial.”

514 So.2d at 916. See also Jones v. Lyons, 540 So.2d 729 (Ala.1989) (reaching the same conclusion in nearly identical circumstances involving a jury instruction on the sudden-emergency doctrine).

Based on this Court’s decisions in Phillips and Friedlander and on the comments to APJI 26.14, Clayton argues that Henderson and LLB Timber failed to present any evidence indicating that a mechanical failure had occurred and that, therefore, the trial court had no basis on which to instruct the jury regarding mechanical failure. Henderson and LLB Timber argue that Henderson testified that he set the brakes and that — if his testimony is to be believed — there is no other explanation for the moving of his truck than that a mechanical failure occurred. Based on this reasoning, Henderson and LLB Timber contend that they did present sufficient evidence of mechanical failure to support the instruction.

Henderson and his supervisor, Nichols, testified that the brakes on Henderson’s truck were new and that they had not presented any problems before the accident. Henderson stated that he did not have any problems with the brakes after the accident and that he was certain that he set the parking brake on his truck. He also testified repeatedly that he did not know what had happened to cause the truck to roll. Nichols testified that he could not find anything wrong with the brake system or with any other part of the truck. Nichols further testified that he could not recreate the accident. Accordingly, other than the fact that the accident occurred, there was no evidence to indicate that a mechanical failure occurred.

Henderson and LLB Timber rely on Kinard v. Carter, 518 So.2d 1248 (Ala. 1987). In Kinard, Jack Carter’s vehicle struck an object on the interstate, causing a tire on Carter’s vehicle to blow out. His vehicle then crossed from the northbound lane to the southbound lane of the interstate and struck a vehicle driven by Valerie Kinard in which her husband, Olis, was a passenger. The Kinards sued Carter and, at trial, the court instructed the jury regarding mechanical failure. The jury returned a verdict for Carter, and the Kinards appealed.

On appeal, among several other arguments, the Kinards argued that the trial court erred in instructing the jury on mechanical failure. This Court stated:

“The evidence is without dispute that defendant’s car was equipped with four new tires, that at least one of these tires ‘blew out’ or failed when the object was struck, and that defendant’s car left the highway immediately thereafter and struck plaintiffs’ vehicle. Thus, the defendant experienced a mechanical failure. It was for the jury to decide whether that mechanical failure, or some negligence of the defendant, was the proximate cause of plaintiffs’ injuries. Howell v. Birmingham Nehi Bottling Co., 267 Ala. 290, 101 So.2d 297 (1958).”

518 So.2d at 1251. In Kinard, therefore, the evidence showed that Carter’s new tire had actually failed. Kinard is thus distinguishable from this case because the defendant in Kinard presented evidence showing that a mechanical failure had in fact occurred. In this case, as stated above, other than the fact that the accident occurred, there was no evidence to indicate that a mechanical failure occurred.

Henderson and LLB Timber next cite two cases for the proposition that the mechanical-failure instruction did not assume facts or improperly lead the jury to a conclusion of fact: Smith v. Pierce, 273 Ala. 321, 323, 134 So.2d 201, 203 (1961) (stating, in a case in which the plaintiff sued her landlord for failing to repair her radiator, that a charge that the plaintiff was not required to stay in her apartment after her lease expired “might have been refused because it is the statement of an abstract principle of law without instructing the jury as to its effect in deciding the issues before them, but it is a correct statement of a legal principle, unnecessary to state, but not reversible error to do so”), and Howell v. Birmingham Nehi Bottling Co., 267 Ala. 290, 293-94, 101 So.2d 297, 299-300 (1958) (stating regarding a mechanical-failure instruction where the evidence showed that a gasket in the right front wheel had ruptured: “We do not find that the facts stated are assumed but the charge hypothesizes those facts on the reasonable satisfaction from the evidence of their existence.... It is said that such a charge gives undue prominence to one phase of the evidence which would justify its refusal, but it is not of such character as to require a reversal for giving it.”). We disagree. The mechanical-failure instruction here was not a charge regarding an abstract principle of law as in Smith. And in Howell, the instruction “hypothesized ... facts on the reasonable satisfaction from the evidence of their existence,” i.e., evidence that a gasket had in fact ruptured. 267 Ala. at 293, 101 So.2d at 300. As stated above, Henderson and LLB Timber presented no evidence from which the fact of a mechanical failure could be “hypothesized” other than the fact of the accident.

When considering claims under Alabama’s Extended Manufacturer’s Liability Doctrine (“the AEMLD”), this Court has held that a plaintiff must prove the existence of the failure or defect; the plaintiff cannot rely solely on the fact that an accident occurred. See, e.g., Taylor v. General Motors Corp., 707 So.2d 198, 202 (Ala.1997) (requiring the plaintiff in an action brought under the AEMLD to “prove the existence of a defective condition and prove that the defect proximately caused his injuries,” and noting the error in “allowing a jury to infer that a product is defective solely from the fact that it failed in some manner”); Townsend v. General Motors Corp., 642 So.2d 411, 415 (Ala.1994) (stating in an AEMLD action: “[T]he failure of a product does not presuppose the existence of a defect. Proof of an accident and injury is not in itself sufficient to establish liability under the AEMLD; a defect in the product must be affirmatively shown.”); Jordan v. General Motors Corp., 581 So.2d 835, 887 (Ala.1991) (“Because Jordan presented no evidence other than evidence that she received injuries as a result of an automobile accident while wearing a GM seat belt, we hold that she did not present substantial evidence to support a claim under the AEMLD.”). We believe that a defendant asserting a defense of mechanical failure should not be held to a lesser burden. Accordingly, the fact that an accident occurred, standing alone, is not sufficient evidence of a mechanical failure to support the instruction. It was incumbent on Henderson and LLB Timber to present substantial evidence that a mechanical failure in fact occurred. Because they did not do so, the trial court exceeded its discretion in instructing the jury regarding mechanical failure.

Finally, Henderson and LLB Timber argue that any error in the mechanical-failure instruction was not prejudicial because they presented sufficient evidence to the jury to support a verdict for the defense on other grounds. Specifically, they rely on evidence from which the jury could have concluded that Clayton was malingering. However, the defendants have not argued or shown that the evidence of malingering entitled them to a judgment in their favor, in the absence of the erroneous instruction. Therefore, the evidence of malingering presented by the defendants does not allow us to treat the giving of the erroneous instruction as harmless error. We decline to speculate that the jury reached its verdict solely on the basis of evidence indicating that Clayton was malingering. For all that appears, the verdict in favor of the defendants was based on the prejudicial effect of the erroneous instruction that prevented the jury from finding in favor of Clayton if it found that the mechanical failure was the sole proximate cause of the accident and Clayton’s injuries.

Conclusion

Based on the foregoing, we conclude that the trial court erred in instructing the jury regarding mechanical failure because the defendants did not present any evidence indicating that a mechanical failure had occurred. Accordingly, we reverse the judgment and remand the cause for a new trial. Our holding in this regard pre-termits consideration of Clayton’s remaining arguments on appeal.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, STUART, BOLIN, PARKER, and SHAW, JJ, concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

Darryl Clayton cites the “notes on use” to Alabama Pattern Jury Instructions: Civil § 26.14 (2d ed.1993), which state that a mechanical-failure instruction is: “To be used in cases where defendant offers evidence of mechanical failure as a defense to the action.” The jury did have evidence indicating that a mechanical failure must have been the cause of the incident at issue. The incident could only have been the result of one of two occurrences: a mechanical failure of the brakes or a failure by Henderson to properly set those brakes, and Henderson testified that he set the brakes properly. The credibility and weight to be given Henderson’s testimony was a question for the jury.

The evidence that the incident could not be replicated, that William George Henderson had no other problem with the brakes before or after the incident, and that his supervisor’s inspection of the brakes yielded no evidence of a mechanical failure is evidence that weighs against Henderson’s credibility and/or assigning his testimony dispositive weight. I cannot say that the evidence allows for only one conclusion as a matter of law, however. The assignment of credibility and weight therefore remains a task for the jury under the circumstances presented; Henderson was entitled to have a jury decide if it believed him. If the jury could accept his testimony that he properly set the brakes before exiting the truck, then it reasonably and logically could conclude that on the occasion at issue the brakes must have failed within the meaning of the jury instruction given.

I find the cases of Phillips v. Seward, 51 So.3d 1019 (Ala.2010), Friedlander v. Hall, 514 So.2d 914 (Ala.1987), and Jones v. Lyons, 540 So.2d 729 (Ala.1989), relied upon by the main opinion to be inapposite.

Based on the foregoing, I respectfully dissent.

      . Clayton also sued IndusTree Timber, Inc., but the trial court entered a summary judgment in favor of that defendant before trial. Clayton has not appealed from that judgment.

      . Henderson further testified that, after the incident, he entered the cab of his truck, found that the brakes were still set, and released them.

      . Obviously, it could have been important for the trial court to instruct the jury that it was the jury’s responsibility to decide if there had been a mechanical failure before applying the particular instruction at issue. We are not presented with any argument that such an instruction was missing from the charges given the jury or whether any such omission would make the mechanical-failure charge given misleading.