author: SEE, Justice.

text:
    The CITY OF BIRMINGHAM, a municipal corporation v. Eric L. MAJOR.
    1070944.
    Supreme Court of Alabama.
    Nov. 21, 2008.

      Lawrence Cooper, city atty., and Thomas Bentley III, asst, city atty., City of Birmingham Law Department, for appellant.
    Stewart Springer of Springer Law Finn, LLC, Birmingham, for appellee.

      . Major had previously amended his complaint to add several factual details that had not been included in the original complaint.

   SEE, Justice.

The City of Birmingham (“the City”) appeals from the Jefferson Circuit Court’s denial of the City’s postjudgment motion for a judgment as a matter of law in the underlying civil-rights action against it. The trial court refused to set aside the judgment it entered on a jury verdict awarding Eric L. Major $500,000 in compensatory damages on Major’s civil-rights action against the City brought pursuant to 42 U.S.C. § 1983. We reverse the trial court’s judgment and render a judgment in favor of the City.

Facts and Procedural History

On the night of April 29, 2004, Officer A1 Anger of the Birmingham Police Department was on patrol in the City’s South Precinct. Sometime around 11:30 p.m., Officer Anger saw a woman get out of an automobile on the other side of the street; she ran toward him. The woman approached Officer Anger and identified herself as Shamanda Joseph. Joseph told Officer Anger that the car she had just gotten out of was being driven by Eric L. Major and that she had just been assaulted by Major.

Officer Anger reported the incident over the police radio, and several other police officers, including Sergeant Paul Erwin, arrived to assist with the investigation. Officer Anger questioned Joseph about the incident, and Joseph told Officer Anger that she and Major were returning from a concert they had attended with a group of friends. Joseph also told Officer Anger that she and Major had been engaged but that Major had ended their engagement in January 2004. Joseph alleged that after they left the concert, Major pulled into a parking lot at the Embassy Suites Hotel, where he assaulted her and attempted to rape her. Joseph told Officer Anger that the physical altercation had lasted approximately one horn’, that Major had struck her on the left side of the face, and that she had used Mace to defend herself against Major. Joseph also indicated to Officer Anger that she did not wish to have Major arrested and prosecuted.

Officer Anger also spoke with Major, who confirmed that he and Joseph had attended a concert earlier that evening and that he and Joseph had previously been engaged. Major told Officer Anger that after the concert Joseph had asked Major if she could ride with him to meet a group of friends at a local café. Major stated that on the way to the café Joseph began questioning him about their relationship and wanted to know why Major had ended their engagement. Major stated that he told Joseph he did not want to talk about their relationship and that Joseph became confrontational and began to attack him verbally. Major told Officer Anger that he then decided to drive Joseph back to her car, but that Joseph maced him before they reached her car. Major stated that his eyes began to burn and that he pulled his car over to the side of the road. At that point, Joseph got out of the car.

During the on-scene investigation, Officer Anger reported that Joseph appeared to have a small red blotch beside the left side of her nose and a little puffiness and discoloration around her left eye. Officer Anger noted that Joseph’s and Major’s clothing appeared disheveled. Officer Anger also observed a dark stain on the left knee area of Joseph’s pants. Officer Anger observed similar dark-colored stains on the dashboard and the passenger’s side of the center console of Major’s car. Sgt. Erwin also noticed that Joseph had marks on her neck and on her wrists.

Following the investigation by Officer Anger, Sgt. Erwin, and the other officers, Officer Anger arrested Major at the scene on one charge of assault. Major was first taken to a nearby hospital for a physical examination and was later transported to the Birmingham city jail.

Officer Anger presented the case to a magistrate judge for a probable-cause determination. The affidavit submitted by Officer Anger stated that Major had struck “the affiant.” Based upon Officer Anger’s affidavit, the magistrate judge found that there was probable cause to arrest and charge Major for assaulting Officer Anger. However, the charge was later amended to specify that Major was being charged for the alleged assault of Joseph. The charge was subsequently amended a second time to charge Major specifically with third-degree domestic violence pursuant to § 13A-6-132, Ala.Code 1975.

Major was tried in the Birmingham municipal court, and he was found guilty of third-degree domestic violence against Joseph. Major appealed that judgment to the Jefferson Circuit Court, where the case was tried before a jury. The jury found Major not guilty of third-degree domestic violence, and the circuit court entered a judgment on the jury’s verdict.

On April 27, 2006, Major filed a nine-count complaint against the City, Officer Anger, in his individual and professional capacity, and Joseph. Specifically, Major alleged a 42 U.S.C. § 1983 civil-rights violation and negligence against Officer Anger and the City. Major also alleged malicious prosecution, “false arrest/false imprisonment,” assault and battery, “verbal abuse/harassment,” defamation, and intentional infliction of emotional distress against all defendants, and he also asserted a conspiracy-to-violate-civil-rights claim against Officer Anger and Joseph. The City moved to dismiss the claims against it or, in the alternative, for a summary judgment. The trial court held a hearing on the City’s motion, and at the hearing the City moved the trial court for a more definite statement regarding Major’s § 1983 civil-rights claim. The trial court dismissed with prejudice the claims in which the City was named as a defendant, except for the § 1983 and “verbal abuse/harassment” claims. The trial court also ordered Major to amend his complaint and to include a more definitive statement regarding his § 1983 claim.

Major filed a second amended complaint realleging the same material claims from his original complaint and included a more definite statement regarding his § 1983 claim, alleging that the City and Officer Anger had violated Major’s Fourth Amendment right “not to be arrested or seized without probable cause.” Officer Anger answered Major’s second amended complaint and denied every material allegation contained in it.

The case went to trial, and Major presented the testimony of Sergeant Wendell Major and of Officer Anger. Sgt. Major testified that he had had previous law-enforcement experience as a detective, a sheriffs deputy with the Jefferson County Sheriffs Office, and a patrol officer and that he had responded to numerous domestic-violence calls. Sgt. Major testified that when responding to a domestic-violence call, a law-enforcement officer has an affirmative duty to determine which party is the primary aggressor and that if an officer is unable to make this determination then there is no probable cause for an arrest. Sgt. Major further testified that, based upon his experience, he did not believe that Officer Anger conducted a thorough investigation by adequately investigating and recording Major’s version of events. Sgt. Major also testified that, in his opinion, Officer Anger did not have probable cause to arrest Major for the assault of Joseph and that Officer Anger had been inadequately trained in how to determine whether probable cause for an arrest exists.

Officer Anger testified that he believed there was probable cause to arrest Major for assaulting Joseph. Officer Anger testified that the redness on the left side of Joseph’s face and the puffiness and discoloration around her left eye appeared to corroborate her allegation that Major had struck her on the left side of her face. Officer Anger also testified that there was evidence to corroborate Joseph’s claim of a physical altercation because, he said, the dark red stains he observed on Joseph’s clothing and in Major’s car appeared to be bloodstains. Officer Anger testified that under Alabama law he is authorized to make a warrantless arrest in a domestic-violence case only when there is probable cause that the primary aggressor abused the alleged victim.

Officer Anger admitted that he did not question Major about Joseph’s allegation that Major attempted to rape her. Officer Anger also admitted that he arrested Major based upon the on-scene investigation and that no follow-up investigation was conducted after Major was arrested. Officer Anger also admitted that he never had an evidence technician perform a test to determine if the dark red substance on Joseph’s clothing and in Majors’s car was, in fact, blood.

After Major presented his case-in-chief, the City and Officer Anger moved the trial court for a judgment as a matter of law. The trial judge granted the motion as to the defamation and conspiracy claims against Officer Anger and denied the motion as to the remaining claims. The City and Officer Anger then presented the testimony of Jeffrey Gilliam, a prosecutor with the City of Birmingham Law Department, and Sgt. Erwin, a patrol supervisor with the South Precinct Task Force of the Birmingham Police Department.

Gilliam testified that he was the prosecutor who had prosecuted Major on the charge of third-degree domestic violence. Gilliam testified that, in his opinion, the police had collected good evidence during the initial investigation and that the evidence collected by the police, such as the photographs of Joseph’s face, Joseph’s statements to the police, and the police report, created “a very good domestic violence case.” Gilliam also testified that the first warrant, which indicated that Officer Anger had been the victim of the assault, was the result of a clerical error that sometimes occurs.

Sgt. Erwin testified that he arrived on the scene after he received Officer Anger’s call over the police radio. Sgt. Erwin testified that he interviewed Major and that Major told him that the incident was just a “misunderstanding.” Sgt. Erwin testified that he also interviewed Joseph and that she told him that she and Major had gotten into a fight while they were in Major’s car and that Major attempted to have sexual intercourse with her against her will. Sgt. Erwin testified that there appeared to be blood on Joseph’s pants and in Major’s car and that he observed marks on Joseph’s neck, wrists, and face that were consistent with a physical altercation. Sgt. Erwin also stated that both Major and Joseph confirmed that they had previously been engaged. Sgt. Erwin testified that, based upon all this evidence, he believed that there was probable cause to arrest Major for domestic violence.

After the City and Officer Anger finished presenting their case, both parties again moved the trial court for a judgment as a matter of law. The trial court granted the motion in part as to the City, dismissing the “verbal abuse/harassment” claim against the City, and denied the motion as to the § 1983 claim. The trial court also granted the motion in part as to Officer Anger, dismissing the § 1983, malicious-prosecution, negligence, “false arrest/false imprisonment,” and assault and battery claims, and denied the motion in part as to the “verbal abuse/harassment” and intentional-infliction-of-emotional-distress claims. The case was sent to the jury. The jury returned a verdict in favor of Officer Anger on the “verbal abuse/harassment” and intentional-infliction-of-emotional-distress claims. However, the jury returned a verdict in favor of Major and against the City on the § 1983 claim, and it awarded Major $500,000 in compensatory damages.

The trial court entered a judgment on the jury’s verdict, and the City renewed its motion for a judgment as a matter of law pursuant to Rule 50(b), Ala. R. Civ. P. The City also moved the trial court pursuant to Rule 15(b), Ala. R. Civ. P., to amend the pleadings to conform to the evidence presented at trial on Majors’s § 1983 claim. The trial court held a hearing on those motions but did not rule on them. Pursuant to Rule 59.1, Ala. R. Civ. P., both of the City’s motions were denied by operation of law on March 7, 2008. The City appeals.

Standard of Review

“When reviewing a ruling on a motion for a JML [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id. Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

Analysis

Major asserts a civil-rights claim against the City pursuant to 42 U.S.C. § 1983. In Monell v. Department of So- dal Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court of the United States held that a local governmental entity is not vicariously liable for an injury inflicted by its employees or agents. “Instead, it is when execution of the government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Mo-nell, 436 U.S. at 694, 98 S.Ct. 2018. In order to hold a governmental entity liable for an injury inflicted by an employee or agent of the entity, an individual must demonstrate that he or she suffered “a constitutional injury at the hands of the individual [governmental employee or agent.]” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). See also Hartline v. Gallo, 546 F.3d 95, 103 (2d Cir.2008) (“To prevail against a municipality on a § 1983 claim, a plaintiff must demonstrate both an injury to a constitutionally protected right and that the injury ‘was caused by a policy or custom of the municipality or by a municipal official “responsible for establishing final policy.” ’ ” (quoting Skehan v. Village of Mamaroneck, 465 F.3d 96, 108-09 (2d Cir.2006))). Therefore, the City is entitled to a judgment as a matter of law if it can demonstrate that Major failed to produce substantial evidence either that he suffered a constitutional injury or that his injury was caused by police action pursuant to a municipal policy or custom.

We first address the City’s argument that the trial court erred in submitting this case to the jury because, it says, Major failed to prove that he suffered a constitutional injury sufficient to sustain his § 1983 claim. Major argues that he suffered a constitutional injury as a result of Officer Anger’s actions because, Major says, he was arrested without probable cause in violation of the Fourth Amendment to the United States Constitution. Major further contends that the issue whether Officer Anger had probable cause to arrest him on a domestic-violence charge is a question of fact that the trial court properly submitted to the jury.

“ ‘A warrantless arrest without probable cause violates the Constitution and provides a basis for a section 1983 claim.’ ” Strickland v. City of Dothan, 399 F.Supp.2d 1275, 1286 (M.D.Ala.2005) (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir.2004)). “However, an action for impermissible arrest is barred if probable cause existed at the time of arrest.” Strickland, 399 F.Supp.2d at 1286 (citing Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.2003)). ‘“In general, the existence of probable cause in a § 1983 action presents a jury question, unless there is only one reasonable determination possible.’ ” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.2002) (quoting Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.1995)); see also Gray v. Burke, 466 F.Supp.2d 991, 996 (N.D.Ill.2006) (“Probable cause typically presents questions fit for the jury, but when the facts are undis-putee!, probable cause may be resolved as a matter of law.”).

Although Joseph and Major gave conflicting accounts as to what transpired on the night of Major’s arrest, the basic facts with which Officer Anger was confronted are undisputed: Both Joseph and Major admitted that they had previously been engaged, that an argument arose as they were driving from the concert to meet some friends at a local café, that Joseph sprayed Mace in Major’s face, that there was a slight swelling and discoloration around Joseph’s left eye, some discoloration on the left side of her face, and marks on Joseph’s neck and wrists, that both Major’s and Joseph’s clothing was disheveled, and that there were dark red stains on Joseph’s left pant leg and on the dashboard and the passenger’s side of the center console of Major’s car. Thus, we are confronted with a legal question of the sufficiency of these facts to establish probable cause.

This Court has stated that “[pjrobable cause exists if facts and circumstances known to the arresting officer are sufficient to wai’rant a person of reasonable caution to believe that the suspect has committed a crime.” Dixon v. State, 588 So.2d 903, 906 (Ala.1991) (citing United Staten v. Rollins, 699 F.2d 530 (11th Cir.1983)). “The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause.” Dixon, 588 So.2d at 906 (citing Stone v. State, 501 So.2d 562 (Ala.Crim.App.1986)).

Major was arrested for violating § 13A-6-132(a), Ala.Code 1975, which provides that a person commits the crime of domestic violence in the third degree “if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22 ... and the victim is ... a person who has or had a dating or engagement relationship with the defendant.” Section 13A-6-22, Ala.Code 1975, provides that a person commits the crime of third-degree assault if “[w]ith intent to cause physical injury to another person, he causes physical injury to any person.” In light of the undisputed facts, we hold that there was a sufficient factual basis for Officer Anger to believe that Major had committed a crime of domestic violence against Joseph.

The first requirement of § 13A-6-132(a) is that an individual commit the crime of third-degree assault against the alleged victim. In this case, several undisputed facts provided a sufficient basis from which Officer Anger could conclude that Major had the intent to injure Joseph and that he did, in fact, physically injure her: the fact that Major and Joseph had an argument while in Major’s car, Joseph’s use of Mace against Major, and the disheveled appearance of their clothing would provide a sufficient basis for concluding that there had been some type of heated altercation between Major and Joseph. The swelling around Joseph’s left eye and other visible marks on her neck and wrists and the dark red, blood-like stains on Joseph’s left leg and in Major’s car all provided a sufficient basis for Officer Anger to conclude that Major had physically struck or forcibly grabbed Joseph.

The second requirement of § 13A-6-132(a) is that the victim must have had a dating or engagement relationship to the alleged assailant. In this case, both Major and Joseph told Officer Anger that they had previously been engaged. Therefore, as a matter of law, the undisputed facts provided Officer Anger with probable cause to arrest Major for committing the offense of third-degree domestic violence.

Major contends that these circumstances could not have provided Officer Anger with probable cause to arrest him for third-degree domestic violence because, Major says, he had alternative explanations for many of these circumstances. For instance, Major pointed out that both he and Joseph were disheveled in appearance because they were returning from a music concert. Major also argued that the dark red stains on Joseph’s left leg and in his car could have been a residue from the Mace Joseph had used on Major. Finally, during his direct examination, Major, after being shown the photographs of Joseph’s face after the alleged assault, commented that the redness on the left side of her face was caused by facial blemishes. “ ‘[F]acts ostensibly sufficient to establish probable cause for an arrest are not negated simply because such facts also may be consistent with the suspect’s innocence.’” United Staten v. Gilkeson, 431 F.Supp.2d 270, 280 (N.D.N.Y.2006) (quoting United States v. Webb, 623 F.2d 758, 761-62 (2d Cir.1980)); see also Gagliardi v. Fisher, 513 F.Supp.2d 457, 479 (W.D.Pa.2007) (holding that the defendant’s alternative explanation of the evidence, which was “equally consistent” with his guilt as with his innocence, did “not negate the existence of probable cause” for his arrest).

This case is analogous to Signorile v. City of Perth Amboy, 523 F.Supp.2d 428 (D.N.J.2007). In that case, Signorile was arrested for assaulting his wife after she told law-enforcement authorities that Sig-norile had hit her, causing a visible injury to her right eye. 523 F.Supp.2d at 430. However, the wife later recanted and told the police that she had injured herself when she had fallen in her bathroom. Id. The charges against Signorile were eventually dropped because the police were unable to collect sufficient evidence to prove that Signorile had assaulted his wife. 523 F.Supp.2d at 431. Signorile then filed a § 1983 action against the City of Perth Amboy and the Perth Amboy Police Department, alleging, among other things, that the police had falsely arrested and imprisoned him in violation of his Fourth Amendment rights. 523 F.Supp.2d at 432.

The court began its analysis by noting that New Jersey’s domestic-violence statute required police officers to arrest a suspect if there was probable cause that an act of domestic violence had occurred and the victim exhibited signs of physical injury. Signorile, 523 F.Supp.2d at 433. The court recognized that “an absolute defense to Signorile’s false arrest and imprisonment claims, under 42 U.S.C. § 1983, is the existence of probable cause.” Id. The court found that there was no dispute of material fact “that the arresting officers had probable cause to arrest Signorile” for assaulting his wife based upon the “exhibition of a physical injury to Mrs. Signorile’s eye” and her initial statement to the police that her husband had caused that injury. 523 F.Supp.2d at 434. Thus, the court concluded that “[bjecause the officers had probable cause to arrest Signorile, Signo-rile cannot establish that Defendants deprived him of any constitutional right.” Id.

Similarly, we conclude that based upon the undisputed facts presented at trial, Major was unable to demonstrate that he was deprived of his constitutional right not to be arrested except upon a showing of probable cause, because the undisputed facts provided Officer Anger with probable cause to arrest Major for third-degree domestic violence.

Conclusion

Because the undisputed facts were sufficient to give Officer Anger probable cause to arrest Major for third-degree domestic violence against Joseph, we conclude that Major has not demonstrated that he suffered a constitutional injury to sustain his § 1983 claim. Therefore, we hold that the City was entitled to a judgment as a matter of law. We reverse the trial court’s judgment and render a judgment in favor of the City.

REVERSED AND JUDGMENT RENDERED.

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

      . In their briefs, both the City and Major spell Sgt. Erwin's last name as "Irwin.” We are using the spelling contained in the record.

      . Section 15-10-3(a), Ala.Code 1975, provides:
      "An officer may arrest a person without a warrant, on any day at any time in any of the following instances:

      “(8) When an offense involves domestic violence as defined by this section, and the arrest is based on probable cause, regardless of whether the offense is a felony or misdemeanor."

      . The date of the second amendment was December 7, 2004, approximately seven months after the alleged incident.

      . Section 13A-6-132(a) provides, in relevant part:
      "A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22 ... and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.”
      Section 13A-6-22, Ala.Code 1975, provides, in relevant part:
      "(a) A person commits the crime of assault in the third degree if:
      "(1) With intent to cause physical injury to another person, he causes physical injury to any person; or
      "(2) He recklessly causes physical injury to another person ...."

      . Sgt. Major is Eric Major’s brother.

      .At the start of the trial, the defense moved the trial court to dismiss Joseph as a defendant. The trial court granted that motion.

      . During direct examination, Officer Anger stated that he did meet with Joseph in late November or early December 2004 when the charge was amended to charge Major with third-degree domestic violence. Officer Anger testified that he met with Joseph at the behest of the City prosecutor's office in order to document some additional information that the prosecutor's office needed to try the case against Major. Officer Anger stated that his meeting with Joseph could be construed as a follow-up investigation. However, he also stated that this follow-up meeting was unusual in that it was the first domestic-violence case in which he had come into contact with the victim after the initial on-site investigation. Officer Anger also testified that domestic-violence cases are assigned to the department’s domestic-violence detectives after the initial on-site investigation has been completed. He testified that the domestic-violence detectives do not normally conduct a followup investigation because most domestic-violence cases involve misdemeanor offenses.

      . Sgt. Erwin also testified that he told Major at the scene that Alabama's domestic-violence law authorized an officer to arrest a suspect if the officer determined that there was probable cause to believe that the suspect had committed a domestic-violence offense.

      . Rule 50(b), Ala. R. Civ. P., provides, in relevant part:
      “Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted tire action to the jury subject to a later determination of the legal questions raised by the motion.”

      . 42 U.S.C. § 1983, provides, in relevant part:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

      . The Fourth Amendment to the United States Constitution provides, in relevant part:
      "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...."

      . Because we decide this case on the ground that there was no constitutional injury, we do not address the other issues raised on this appeal.


source: Caselaw Access Project

author: PARKER, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte Cynthia DAVIS and Suzann Isaacs. (In re The estate of Natasha Lee, by and through its personal representative David N. Cutchen v. Jefferson Metropolitan Healthcare Authority et al.).
    1060734.
    Supreme Court of Alabama.
    Nov. 21, 2008.

      Susan J. Walker and Brent G. Grainger of Waldrep, Stewart & Kendrick, LLC, Birmingham, for petitioners.
    David N. Cutchen and Maxwell D. Carter of Forstman & Cutchen, LLP, Birmingham, for respondents.
   PARKER, Justice.

The petitioners, Cynthia Davis and Su~ zann Isaacs, are Jefferson County sheriffs deputies who claim sovereign immunity in a wrongful-death action brought against them and others by the estate of Natasha Lee (“the estate”), by and through its personal representative David N. Cutchen. On October 23, 2006, the trial court granted Davis and Isaacs’s motion to dismiss the complaint against them based on the doctrine of sovereign immunity and gave the estate 21 days to file an amended complaint. The estate filed an amended complaint on November 13, 2006, which included a wrongful-death claim and a 42 U.S.C. § 1983 claim alleging deliberate indifference to Lee’s serious medical needs. Davis and Isaacs again moved for a dismissal, arguing that the amended complaint, filed more than two years after Lee’s death, is time-barred and could not relate back to the initial complaint, which had been dismissed as to Davis and Isaacs on the basis of sovereign immunity. Sovereign immunity is a jurisdictional bar and, Davis and Isaacs argue, the trial court had no authority to do anything with the initial complaint other than to dismiss it, i.e., it had no authority to allow the estate 21 days to file an amended complaint. The trial court denied their motion to dismiss, and Davis and Isaacs petitioned this Court for a writ of mandamus ordering the trial court to dismiss the wrongful-death action and the § 1983 claim asserted against them in the amended complaint. This Court ordered answer and briefs, and after examining the answer and briefs, we now grant the petition and issue the writ of mandamus.

I. Background

Lee, a 32-year-old female, was placed in the Jefferson County jail on March 19, 2004, where she was being held pending the hearing of federal charges against her in the United States District Court for the Northern District of Alabama. The estate alleges that Lee’s medical records, the information provided during the intake and screening, and other documentation in her medical file contain multiple references to the fact that Lee suffered from Graves’ disease and other disorders and that she required medication for these conditions. The medications she had been taking include propylthiouracil (“PTU”), atenolol, Inderal, Prozac, and trazadone.

Lee’s prescription for PTU, which she was to take orally three times daily for seven days, ran out on or about April 9, 2004, and was not reordered, refilled, re-prescribed, or administered to Lee after that date. Lee was released from the jail on April 22, 2004. She was admitted to the University of Alabama at Birmingham hospital on April 26, 2004, after complaining of chest pain and becoming unresponsive; she died at the hospital on that same date. The autopsy findings of the Jefferson County medical examiner’s office state that the cause of death was a “thyroid storm” due to Graves’ disease. Blood taken upon Lee’s admission to the University of Alabama at Birmingham hospital reflects that Lee had no PTU in her blood at the time of her death.

The estate claims that Davis, Isaacs, and the other defendants were responsible for Lee’s physical care because they had incarcerated her and prevented her from obtaining medical treatment on her own, that they were aware of Lee’s medical condition, that they provided no medical care for Lee and did not allow her to obtain medical care, and that their failure to provide medical care or allow her to obtain medical care constitutes willful and wanton misconduct and violation of a duty imposed upon sheriffs and jailers by Ala. Code 1975, § 14-6-19. The estate alleges that on March 20, 2004, the day after Lee’s admission to the jail, Davis entered the D Block on Level 5 of the jail to perform a head count, that she found Lee lying on the floor, that she asked Lee what was wrong, and that Lee told Davis that she did not feel well, that she had Graves’ disease, and that she needed her medication. Davis then transferred Lee to the medical block and informed someone on the medical staff that Lee had told her she had Graves’ disease and needed her medication.

Davis and Isaacs claim that they are immune from this action under § 14 of the Alabama Constitution of 1901. They deny that they were negligent in any respect as to Lee’s custody and her treatment while in custody. They admit that Lee told them that she suffered from Graves’ disease, but they assert that they had no further knowledge of Lee’s medical condition, that they had no knowledge about Graves’ disease or about any medications used to treat Graves’ disease, that they have no medical training except basic first aid and CPR, and that they are prohibited by regulations applicable to the jail (Corrections Division Manual of General Orders §§ 4-1, 4-9, and 4-11) and by state law (Ala.Code 1975, §§ 34-24-51, 34-24-50, and 34-23-50) and federal law (the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191) from accessing prisoners’ medical records or giving medications to prisoners.

II. Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998).”

Ex parte State Farm Mut. Auto. Ins. Co., 761 So.2d 1000, 1002 (Ala.2000). “It is well established that mandamus will lie to compel a dismissal of claim that is barred by the doctrine of sovereign immunity.” Ex parte Blankenship, 893 So.2d 303, 305 (Ala.2004) (citing Ex parte McWhorter, 880 So.2d 1116, 1117 (Ala.2003)). “ ‘Mandamus review- is available when the question presented is one of subject-matter jurisdiction.’ ” Ex parte Richardson, 957 So.2d 1119, 1124 (Ala.2006) (quoting Ex parte Chemical Waste Mgmt, Inc., 929 So.2d 1007, 1010 (Ala.2005)).

III. Analysis

Article I, § 14, Alabama Constitution of 1901, states simply: “[T]he State of Alabama shall never be made a defendant in any court of law or equity.” Although counties do not necessarily possess the same sovereign immunity as do states and state agencies, county sheriffs are executive officers of the State of Alabama and are therefore immune from liability for actions taken in executing the duties of their offices. Boshell v. Walker County Sheriff, 598 So.2d 843, 844 (Ala.1992). This Court has also recognized that a “deputy sheriff is afforded the same immunity from suit as a sheriff in regard to claims for monetary damages stemming from activities performed while working in the line and scope of his or her employment.” Ex parte Purvis, 689 So.2d 794, 796 (Ala.1996).

When Lee was in custody in the Jefferson County jail, Davis and Isaacs were acting within the line and scope of their employment while guarding the prisoners in the county jail. They were prohibited from prescribing or dispensing medications; those services were the contractual responsibility of the medical-service providers for the jail. Davis and Isaacs are therefore immune from liability for the estate’s wrongful-death claim because of the sovereign immunity afforded them by § 14, Alabama Constitution of 1901. The trial court therefore appropriately dismissed the wrongful-death claim against them in the original complaint.

The issue raised in this mandamus petition is whether the trial court then erred in allowing the estate to file an amended complaint including a new wrongful-death count and a 42 U.S.C. § 1983 count after the original complaint had been dismissed on the ground of sovereign immunity and the statute of limitations on the claims asserted in the amended complaint had expired. We conclude that the trial court did err in allowing the estate to file an amended complaint.

After the original complaint was dismissed as to Davis and Isaacs on October 23, 2006, the estate filed an amended complaint on November 13, 2006, more than two and one-half years after Lee’s death on April 26, 2004, that stated two new causes of action against Davis and Isaacs. The new wrongful-death claim against Davis and Isaacs is barred by § 14, Alabama Constitution of 1901, just like the original wrongful-death claim that was dismissed by the trial court.

Because the original complaint purported to state a cause of action against Davis and Isaacs in violation of § 14, Alabama Constitution of 1901, the trial court did not acquire subject-matter jurisdiction over the claims against the deputies when the original complaint was filed. Ex parte Blankenship, 893 So.2d 303, 306-07 (Ala. 2004). Thus, when the amended complaint was filed, the newly asserted § 1983 claim against Davis and Isaacs was time-barred by the applicable two-year statute of limitations:

“(l) All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”

§ 6-2-38(0; Gorman v. Wood, 663 So.2d 921, 922 (Ala.1995) (“[T]he only statute of limitations applicable to § 1983 claims in Alabama is the two-year statute of limitations in Ala.Code 1975, § 6 — 2—38(Z ).”).

Therefore, Davis and Isaacs’s motion to dismiss was due to have been granted.

IV. Conclusion

For the above-stated reasons, we grant the petition and issue the writ of mandamus; the trial court is directed to dismiss the amended complaint against Davis and Isaacs.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

Unlike the main opinion, I do not see a causal connection between the fact that the trial court did not acquire subject-matter jurisdiction over the state-law claims against Cynthia Davis and Suzann Isaacs in the original complaint and the disallowance of the state- and federal-law claims against Davis and Isaacs in the amended complaint.

Unlike the undismissed, but void, claims in the original complaint in Cadle Co. v. Shabani, 4 So.3d 460 (Ala.2008), the claims in the original complaint against Davis and Isaacs had actually been dismissed by the trial court by the time the amended complaint was filed. Therefore, there literally was no pre-statute-of-limitations complaint still pending to which the amended complaint could relate under Rule 15(c), Ala. R. Civ. P. It matters not that the claims in the original complaint were insufficient to provide the trial court with subject-matter jurisdiction. What matters is that, with respect to the claims against Davis and Isaacs, the original complaint had been dismissed. Rule 15(c), therefore, was not available to save either the new wrongful-death claim or the new claim under 42 U.S.C. § 1983 from the bar of the applicable two-year statute of limitations. See Ala.Code 1975, § 6-2-38(i).

Accordingly, although I concur in the result reached by the main opinion, I respectfully decline to join in the reasoning offered by that opinion.

      . Other named defendants sued by the estate, but not at issue in this petition, included the Jefferson Metropolitan Healthcare Authority, Prison Health Services, 3 doctors, and at least 10 nurses.


author: BOLIN, Justice.

text:
    Melinda FENN v. OZARK CITY SCHOOLS BOARD OF EDUCATION.
    1070821.
    Supreme Court of Alabama.
    Nov. 21, 2008.

      Steadman S. Shealy, Jr., and Stuart K. Smith of Shealy, Crum & Pike, P.C., Do-than, for appellant.
    Henry Steagall, Ozark, for appellee.
   BOLIN, Justice.

Melinda Fenn, a teacher in the Ozark City School System, after being notified that the local regional newspaper, the Do-than Eagle, had made a request to view specific disciplinary information in her personnel file pursuant to Alabama’s Open Records Act, §§ 36-12-40 and -41, Ala. Code 1975, filed an action against the Ozark City Schools Board of Education (“the Board”) in the Dale Circuit Court seeking a judgment declaring that the requested information was not subject to disclosure under the Open Records Act and ordering the Board not to release the information. The trial court entered a judgment holding that the requested information was subject to disclosure, and Fenn appealed. Because Fenn’s action does not present a justiciable controversy, we vacate the judgment and dismiss the appeal.

In Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998), this Court stated:

“Not all controversies, even very public ones, are justiciable. Justiciability is a compound concept, composed of a number of distinct elements. Chief among these elements is the requirement that a plaintiff have ‘standing to invoke the power of the court in his behalf.’ Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990). Unless a plaintiffs interest in acquiring a favorable judgment is one that is ‘tangible,’ Reid v. City of Birmingham, 274 Ala. 629, 639, 150 So.2d 735, 744 (1963), and ‘concrete,’ Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983), he has no standing to assert his claims. Moreover, as we explained in Reid:
“ ‘ “Not only must the plaintiff prove his tangible interest in obtaining a judgment, but the action must be adversary in character, that is, there must be a controversy between the plaintiff and a defendant, subject to the court’s jurisdiction, having an interest in opposing his claim. Unless the parties have such conflicting interests, the case is likely to be characterized as one for an advisory opinion, and the controversy as academic, a mere difference of opinion or disagreement not involving their legal relations, and hence not justiciable.” ’
274 Ala. at 639, 150 So.2d at 744 (quoting E. Borchard, Declaratory Judgments, 29-30) (emphasis added). Thus, ‘ “[t]he absence of adversary or the correct adversary parties is in principle fatal.’” Rogers v. Alabama Bd. of Educ., 392 So.2d 235, 237 (Ala.Civ.App.1980) (quoting E. Borchard, Declarator Judgments 76 (2d ed.1941)) (emphasis added). See also Stamps [v. Jefferson County Bd. of Educ.], 642 So.2d [941,] 944 [ (Ala.1994) ].”

Thus, for a controversy to be justiciable, there must be some controversy between the panties. See also Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1183 (Ala.2006) (“[I]t is inarguable that the State’s declaratory-judgment complaint does not allege any controversy between parties whose legal interests are adverse.”). There is no controversy in the present case — both Fenn and the Board have consistently taken the position that the information in Fenn’s personnel file requested by the Dothan Eagle is exempt from disclosure. Both in the trial court and before this Court, the briefs filed by the Board merely support and expand upon the arguments made in Fenn’s briefs. At no point in this litigation has the Board taken a position contrary to Fenn’s; indeed, it might be said that “[t]he record before us depicts a case, a trial, and an appeal between a plaintiff and defendant who had no real differences between themselves.” State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So.2d 106, 109 (1974). Thus, there is no party before this Court arguing that the requested disciplinary information in Fenn’s personnel file should be released to the Dothan Eagle. We have stated on many occasions that this Court will not craft arguments for parties, see, e.g., University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala.2004); we are even less inclined to craft arguments on behalf of nonparties.

This Court confronted a similar scenario in Ex parte State ex rel. James, a case arising from Etowah County Circuit Judge Roy Moore’s display in his Etowah County courtroom of a plaque bearing the Ten Commandments. After the Alabama Freethought Association (“AFA”) sued Judge Moore in the United States District Court for the Northern District of Alabama, the State filed a declaratory-judgment action in the Montgomery Circuit Court naming the AFA, the American Civil Liberties Union of Alabama (“the ACLUA”), and Judge Moore as defendants, notwithstanding the fact that the State’s position was favorable to Judge Moore. Relying heavily on Johnson, this Court vacated the judgment entered by the trial court, stating:

“The controversy in Johnson is closely analogous to the one in this case, and the rationale in that case is particularly pertinent in this one. Indeed, as to the claim of the plaintiff State against the defendant Judge Moore, there is not even facial adverseness. On the contrary, the pleadings show, on the face, that the plaintiff and Judge Moore actually support one another. More specifically, the State does not seek a declaration that Judge Moore’s actions are incorrect in any respect. On the contrary, the complaint — particularly, in those emphasized portions quoted above — extols the actions of Judge Moore and seeks a judgment declaring that his practices are eminently correct and must be sanctioned. The State does not allege that it has been harmed in any manner by Judge Moore’s practices. It does not seek to interfere with this defendant’s practices, but, in fact, seeks to perpetuate this defendant’s conduct.
“Predictably, Judge Moore, in his answer, admitted all the substantive allegations in the complaint. As we stated above, Judge Moore ljoin[ed] with the State of Alabama in requesting a judg- ■ ment’ declaring that the challenged practices were constitutional. (Emphasis added.) In other words, this defendant expressly agrees ivith the plaintiff that his practices are constitutional and that he is entitled to continue them in perpetuity.
“The absence of adverseness has been evident throughout this litigation. It was evidenced, for example, by the fact that Judge Moore was the only defendant who opposed removal of the action to the federal court. Indeed, the AFA and the ACLUA, at various times throughout the litigation in the trial court, contended that Judge Moore should be realigned as a plaintiff.
“Judge Moore thus goes further than the defendant superintendent of banks in Johnson, who took no position on the merits. Judge Moore takes a position on the merits, but he takes a position that is identical to that of the State, and he argues it strenuously. As between the State and Judge Moore, there exists no controversy, whatever — not even a contrived one. This is not lohat lawsuits are about.”

711 So.2cl at 961-62 (footnote omitted). Because the present case similarly lacks adverseness or a real controversy between the parties, the judgment entered by the trial court is void and is hereby vacated. Because a void judgment will not support an appeal, City of Mobile v. Scott, 278 Ala. 388, 390, 178 So.2d 545, 547 (1965), Fenn’s appeal is dismissed.

JUDGMENT VACATED AND APPEAL DISMISSED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.

      . The Board has expressed some doubt about whether its position is correct; nevertheless, it unequivocally argues that the Open Records Act does not require it to disclose to the Dothan Eagle the requested information in Fenn’s personnel file.


author: THOMAS, Judge.

text:
    Nora EVANS v. FIRST NATIONAL BANK OF JASPER.
    2070357.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2008.
    Glenda Hudson, Jasper, for appellant.
    Tina A. Burgett of O’Rear & O’Rear, LLC, Jasper, for appellee.
   THOMAS, Judge.

Nora Evans appeals from a summary judgment in favor of First National Bank of Jasper (“the Bank”) in an action on a promissoiy note and security agreement. We reverse and remand.

On April 25, 1997, Evans purchased a vehicle from Carl Cannon Chevrolet Oldsmobile, Inc. (“Cannon”), pursuant to a retail installment contract and security agreement (“the contract”). That same day, Cannon assigned the contract to the Bank. On January 17, 2002, the Bank sued Evans, alleging a breach-of-contract claim seeking the balance due on the contract, plus an attorney fee, or, in the alternative, alleging a detinue claim seeking the recovery of the vehicle or its alternative value and damages for Evans’s wrongful detention of the property. A copy of the contract and a copy of the title to the vehicle were attached to the complaint.

On April 25, 2002, the Walker District Court entered a judgment in favor of the Bank in the amount of $5,130.55, plus costs and an attorney fee of $830. On May 9, 2002, Evans filed a timely postjudgment motion requesting a new trial. See Rule 59(dc), Ala. R. Civ. P. On May 21, 2002, the district court denied Evans’s postjudgment motion. On May 24, 2002, Evans timely appealed to the Walker Circuit Court.

On December 5, 2005, the Bank filed a motion for a summary judgment in the circuit court. The Bank’s motion was supported by a narrative summary of undisputed facts, an affidavit executed by the Bank’s vice president, Milton L. Lay, Jr., and a copy of the title to the vehicle showing that the Bank held a lien on the vehicle. Lay’s affidavit stated that Evans was in default of the contract for failure to make the scheduled payments and that Evans owed the Bank $5,553.33 plus interest from September 21, 2003, as well as costs and an attorney fee of $830. Lay’s affidavit also averred that the Bank had demanded possession of the vehicle but that Evans had refused to relinquish control of the vehicle.

In response to the Bank’s motion, Evans filed an affidavit acknowledging that she was in default of the contract for failure to make the payments as scheduled but denying that she had ever refused to relinquish control of the vehicle and stating that the Bank should have repossessed the vehicle in order to mitigate its damages. She further alleged that she had made a payment to the Bank’s attorney after the lawsuit was filed. Finally, she denied that she owed the Bank $5,553.33, plus interest, costs, and an attorney fee. Instead, she stated that she owed the Bank “less than $3,000.” On November 19, 2007, the circuit court entered a judgment in favor of the Bank, stating, in pertinent part:

“[T]he Court finds the [Bank] is entitled to a money judgment against the defendant, Nora Evans, in the amount of $9,178.95 ($5,960.55 principal & attorney fees 4- $3,070.40 interest and $148.00 costs.)”

On December 14, 2007, Evans filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P. The circuit court denied that motion on December 18, 2007, and Evans timely appealed to this court on January 17, 2008. On appeal, Evans argues that the circuit court erred by entering a summary judgment in favor of the Bank because, she says, she demonstrated that there was a genuine issue of material fact on the question of damages. We agree.

Finality

A judgment is final if it adjudicates all claims against all parties. See Rule 54(b), Ala. R. Civ. P. In the instant case, the Bank asserted two claims, detinue and breach of contract, against Evans. The circuit court’s judgment awarded the Bank money damages on the breach-of-contract claim, rather than possession of the vehicle or, in the alternative, the alternate value of the vehicle. See § 6-6-256, Ala.Code 1975. The judgment is final, however, because to award to the Bank both money damages and possession of the vehicle or the vehicle’s alternate value would allow the Bank a double recovery, which is impermissible. Steger v. Everett Bus Sales, 495 So.2d 608, 609 (Ala.1986) (stating that “[t]he trial court could have found that Everett was entitled either to possession of the bus, or to money damages for breach of contract, but it could not grant both forms of relief. To give Everett both possession of the bus and money damages would be to give it a double recovery. We cannot sanction such a result.”).

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975. In reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

Discussion

The elements of a breach-of-eon-tract claim are “ ‘(1) the existence of a valid contract binding the parties in the action, (2) [the plaintiffs] own performance under that contract, (3) the defendant’s nonperformance, and (4) damages.’ ” Childersburg Bancorporation, Inc. v. Peoples State Bank of Commerce, 962 So.2d 248, 253 (Ala.Civ.App.2006) (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995)).

It is undisputed that there was a valid contract, that the Bank’s assignor had performed under the contract, and that Evans had failed to perform under the contract. As to the issue of damages, however, we conclude that a genuine issue of disputed material fact existed. Lay asserted that he had examined the books and records of the Bank and that he had personal knowledge that Evans owed the Bank $5,553.33, plus interest, costs, and an attorney fee. Lay further asserted that the Bank had demanded possession of the vehicle but that Evans had refused to relinquish control of the vehicle. In response, Evans asserted that she had made a payment to the Bank’s attorney after the lawsuit was filed and that she owed the Bank less than $3,000. She further asserted that she had never refused to relinquish control of the vehicle, and she stated that the Bank should have repossessed the vehicle in order to mitigate its damages.

The Bank argues on appeal that Evans’s statement that she owed the Bank less than $3,000 was an unsubstantiated conclu-sory allegation that amounted to nothing more than speculation, conjecture, or guesswork that, the Bank says, was insufficient to establish a genuine issue of material fact. In support of its argument, the Bank cites Springfield Missionary Baptist Church v. Wall, 993 So.2d 469 (Ala.Civ.App.2008), Bogle v. Scheer, 512 So.2d 1336 (Ala.1987), and Nowell v. Mobile County Health Department, 501 So.2d 468 (Ala.Civ.App.1986). Those three cases reiterate the general rule that conclusory allegations unsubstantiated by any facts are inadmissible in support of or in opposition to a summary-judgment motion. The Bank did not move to strike Evans’s affidavit on the ground that the allegations in it were unsubstantiated, however, and Lay’s affidavit reciting the amount that, the Bank claimed, Evans owed suffers from the same defect that it now claims infects Evans’s affidavit. Neither Lay’s affidavit stating what the Bank claimed Evans owed nor Evans’s affidavit disputing that amount and positing her own estimate of the amount she owed was substantiated by factual documentation. Moreover, Evans’s statement that she had never refused to relinquish possession of the vehicle clearly refuted Lay’s allegation that the Bank had demanded possession of the vehicle but that Evans had refused to surrender the vehicle to the Bank.

Accordingly, because there were genuine issues of material fact, we conclude that the circuit court erred by entering a summary judgment in favor of the Bank. The judgment of the Walker Circuit Court is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: MOORE, Judge.

text:
    ASHLEY’S SEINING, Ashley Eaton, Eddie Eaton, and Sharon Eaton v. JMK FARMS and James Kuykendall.
    2070888.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.

      Michael D. Smith, Tuscaloosa, for appellants.
    Nathan G. Watkins, Jr., Livingston, for appellees.
   MOORE, Judge.

Ashley’s Seining, Ashley Eaton, Eddie Eaton, and Sharon Eaton (sometimes hereinafter referred to collectively as “the Eatons”) appeal from a summary judgment entered by the Sumter Circuit Court in favor of JMK Farms and James Kuyk-endall. We reverse and remand.

Procedural Facts

On August 26, 2003, JMK Farms (“JMK”) and James Kuykendall, the owner of JMK Farms, filed a complaint against Ashley’s Seining and Ashley Eaton. JMK and Kuykendall subsequently amended their complaint on July 7, 2004, to add Eddie Eaton and Sharon Eaton as defendants. JMK and Kuykendall alleged that all the defendants had breached four contracts, totaling $42,202.50, for the purchase of catfish removed from JMK’s ponds in December 2002. On September 30, 2004, JMK and Kuykendall filed a motion for summary judgment against Ashley’s Seining and Ashley Eaton. On October 12, 2004, the Eatons filed an answer, denying the allegations of the complaint, asserting various affirmative defenses, and stating a counterclaim against JMK and Kuykendall alleging the tort of outrage. On October 22, 2004, JMK and Kuykendall amended them summary-judgment motion to address their claims against Eddie Eaton and Sharon Eaton.

On October 26, 2004, the trial court notified the parties that a hearing on the amended summary-judgment motion would be held on November 4, 2004. The record shows that that notice was sent to the Eatons but that the notice was not sent to the attorney for the Eatons. On November 4, 2004, the Eatons filed a motion to continue the hearing on the summary-judgment motion, along with the affidavits of Eddie Eaton and Ashley Eaton. JMK and Kuykendall moved to strike those affidavits on the ground that they were untimely. On November 8, 2004, the trial court entered a judgment in which it denied the motion to continue the hearing and entered a summary judgment in favor of JMK and Kuykendall.

On November 16, 2004, the Eatons filed a postjudgment motion. On that same date, the Eatons amended their answer to withdraw their counterclaim. On February 14, 2005, the postjudgment motion was denied by operation of law. The Eatons timely appealed on March 10, 2005.

Substantive Facts

The evidence attached to JMK and Kuykendall’s summary-judgment motion indicates that the Eatons all do business together as Ashley’s Seining and that, on December 12, 15, 19, and 26, 2002, the Eatons agreed to purchase catfish from JMK at a rate of 40 cents per pound and to submit payment for the same within 30 to 35 days of the delivery date. Ashley, Eddie, and Sharon all participated in the seining of the catfish, which were later delivered to a processor in Chicago. The evidence presented by JMK and Kuyken-dall indicates that Kuykendall told the Ea-tons that he did not care to whom they sold the catfish, but that he expected payment from them, and that Eddie and Ashley agreed to that method of payment. The Eatons did not pay within the time allotted. In 2003, Kuykendall and a friend, Wallace Edmonds, drove to Macon, Mississippi, where the Eatons worked, and tried to collect the amounts due. At that time, Eddie told Kuykendall that he remembered their conversation about who would be responsible for payment. Nevertheless, Eddie told Kuykendall that JMK would get its money once an employee of the processor came to Macon and that Eddie would call him about the payment after the employee’s visit. Eddie did not call Kuykendall, so Kuykendall and Ed-monds returned to Macon. On that visit, Eddie and Sharon told Kuykendall that he would have to speak with Ashley about the debt. Kuykendall asked Eddie to tell Ashley to call him, but, according to Kuyken-dall, Ashley did not call or send payment. JMK was never paid. As of August 15, 2003, the total amount due was $42,202.50.

In his affidavit, Ashley attested that he owns and operates Ashley’s Seining. Ashley stated that the Eatons merely seined the catfish and delivered them to the processor. Ashley denied that he ever agreed that the Eatons would compensate JMK and Kuykendall for the catfish. Rather, Ashley attested that JMK and Kuykendall had understood that the processor who ultimately received the catfish would pay, which, according to Ashley, was what JMK and Kuykendall had agreed to and was also consistent with ordinary business practices in the seining trade. Eddie swore that he had never agreed with JMK and Kuykendall that the Eatons would be responsible for payment. Eddie stated that, when Kuykendall had approached him in Macon, he had acknowledged that Kuykendall had earlier said that he expected payment from Ashley and/or Ashley’s Seining, but he denied that he ever agreed that Ashley or Ashley’s Seining was, in fact, responsible for that payment. Eddie attested that Kuykendall and JMK had agreed to accept payment from the processor in accordance with the ordinary business practice in the seining trade.

Issues

The Eatons argue that the trial court erred in failing to provide them 10 days’ notice of the summary-judgment hearing and in entering the summary judgment. We find the first issue dispositive.

Analysis
Rule 56(c)(2), Ala. R. Civ. P., provides:
“(2) Time. The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days’ notice with the consent of the parties concerned. Subject to subpara-graph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.”

In this case, JMK and Kuykendall filed their original motion for a summary judgment on September 30, 2004. That motion was supported by the affidavits of Kuykendall and Edmonds and various exhibits, including the “weight tickets” showing the weight of the catfish removed from JMK’s ponds. On October 22, 2004, JMK and Kuykendall amended their motion for a summary judgment to address their claims against Eddie Eaton and Sharon Eaton; JMK and Kuykendall did not, however, supplement that motion with any additional evidentiary material. On October 26, 2004, the trial- court issued notices to the Eatons that the motion for a summary judgment would be heard on November 4, 2004.

Strictly speaking,' the trial court did not violate the terms of Rule 56(c)(2). Rule 56(c)(2) states that the motion and supporting materials must be served at least 10 days before the time fixed for the hearing. JMK and Kuykendall served their motion and evidentiary materials on the Eatons at the latest on October 22, 2004. The trial court set the hearing for November 4, 2004, which was 13 days after the motion and supporting materials had been served.

However, in Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So.2d 698, 702-03 (Ala.1988), our supreme court construed Rule 56(c)(2) as requiring 10 days’ notice of the hearing on a motion for a summary judgment. See also Kelly v. Harrison, 547 So.2d 443, 445 (Ala.1989) (plurality opinion); and Nolen v. Peterson, 544 So.2d 863, 866 (Ala.1989). Moreover, in Bank of Brewton, Inc. v. International Fidelity Insurance Co., 827 So.2d 747 (Ala. 2002), our supreme court held that Rule 56(c)(2) is subject to Rule 6, Ala. R. Civ. P., which provides, in pertinent part:

“(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”

(Emphasis added.) When it issued the notice on October 26, 2004, the trial court was required to set the hearing at least 10 days, excluding intermediate Saturdays and Sundays, from that date. Accordingly, the earliest date the hearing could have been set in compliance with Rule 56(c)(2) and Rule 6 was November 9, 2004. The trial court violated the 10-day-notice requirement set out in Rule 56(c)(2) by setting the hearing on the motion for a summary judgment on November 4, 2004.

By the plain language of the rule, compliance with the notice provision in Rule 56(c) maj'' be excused by the consent of the parties. In this case, the Eatons filed a motion to continue the hearing. They also filed a Rule 59, Ala. R. Civ. P., motion, objecting to the scheduling of the hearing, after entry of the summary judgment. Hence, the Eatons did not waive their right to insist on 10 days’ notice of the hearing.

Additionally, a trial court has the discretion to hold a summary-judgment hearing on less than 10 days’ notice when no actual prejudice results. Middaugh v. City of Montgomery, 621 So.2d 275 (Ala.1993). In this case, the Eatons claimed in their Rule 59 motion that they were actually prejudiced because, they asserted, due to the shortened time, their counsel was unable to generate and file opposing evi-dentiary materials until the date of the hearing, in violation of the last sentence of Rule 56(c)(2). The Eatons claim that the trial court excluded their evidence, based on that violation, to their prejudice. The record discloses that JMK and Kuykendall filed a motion to strike the affidavits of Eddie and Ashley based on their untimeliness. The trial court did not expressly rule on that motion, but, in its judgment, it described the evidence it considered, which did not include the affidavits filed by the Eatons, implying that it struck those affidavits. Hence, the Eatons demonstrated that they were actually prejudiced by the failure of the trial court to give them 10 days’ notice of the hearing on the sum-maty-judgment motion. See Middaugh, supra.

Because the trial court exceeded its discretion by conducting a hearing on the motion for a summary judgment on less than 10 days’ notice, we reverse the summary judgment and remand the cause for further proceedings. We instruct the trial court to reissue a notice of hearing date in compliance with Rule 56(c)(2) and to consider all evidentiary materials timely filed by both sets of parties in anticipation of that hearing date, including the affidavits of Eddie and Ashley.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Although the notice of appeal was filed on March 10, 2005, the Sumter Circuit Court transmitted the notice of appeal and the record to this court on June 27, 2008.


text:
    Susan S. BOUDREAU, administrator of the estate of Robert Slaton, deceased v. Anne S. SLATON.
    2070647.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2008.

      Joseph D. Steadman of Dodson & Stead-man, P.C., Mobile, for appellant.
    D. Charles Holtz of Burr & Forman, LLP, Mobile, for appellee.
   MOORE, Judge.

Susan S. Boudreau, the administrator of the estate of Robert Slaton, appeals from the trial court’s determination that the divorce action filed by Anne S. Slaton (“the wife”) against Robert Slaton (“the husband”) abated upon the husband’s death. We affirm.

Facts and Procedural History

On September 26, 2006, the wife filed a complaint in the Elmore Circuit Court seeking a divorce from the husband. The wife alleged that there had been an irretrievable breakdown of the parties’ marriage and requested, among other things, that the court divorce the parties, divide the personal property and debts of the marriage between the parties, and award the wife alimony. After the husband answered, the trial court set the case for a trial to take place on January 4, 2007. The trial court continued the case three times to August 22, 2007. On August 17, 2007, the wife filed a motion to continue the case again, to which the husband objected. In his objection, the husband noted that the trial court had “advised at the last trial setting that there would be no more continuances” in the case and that “the [hjusband’s health is declining rapidly and he has already scheduled medical procedures to ensure his attendance at the August 22, 2007, trial date.”

On August 22, 2007, the trial court made the following entry on the case-action-summary sheet: “Case called. Divorce issued. Parties are forever divorced. All issue [sic] of property division reserved to this Court.” The trial court subsequently set the case for a final hearing regarding the division of property for January 9, 2008.

The husband died on November 13, 2007. On December 4, 2007, the wife filed a motion for an injunction, seeking an order enjoining “all parties from the removal, transfer, conveyance, sale or any other transfer concerning any item of marital property pending further orders from this [c]ourt.” The trial court granted the wife’s motion for an injunction on December 19, 2007.

On January 8, 2008, the wife filed a motion to set aside the order of divorce or, in the alternative, for an order nullifying and voiding all orders previously entered in the action because, she argued, the action had been abated by the husband’s death. On January 9, 2008, the trial court, by an order entered on the case-action-summary sheet, set aside its August 22, 2007, order of divorce pursuant to Jones v. Jones, 517 So.2d 606 (Ala.1987). By a separate entry on January 9, 2008, the trial court ruled that the wife’s motion to set aside the order of divorce abated due to the husband’s death.

On January 30, 2008, Susan S. Bou-dreau, who had been appointed as the administrator of the husband’s estate, filed a motion to substitute the husband’s estate as the proper party in the divorce action and a motion to vacate the trial court’s January 9, 2008, order setting aside the order of divorce. In the motion to vacate, Boudreau alleged that on November 8, 2007, the husband had executed a new will removing all references to the wife. Bou-dreau argued that unless the August 22, 2007, order was reinstated the wife would be unjustly enriched if she were to exercise her right to an elective share of one-third of the husband’s estate. On February 28, 2008, the trial court entered an order on the case-action-summary sheet denying Boudreau’s motion to vacate the January 9, 2008, order. Boudreau filed a notice of appeal to this court on April 9, 2008.

Standard of Review
“A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate [Ins. Co. v. Skelton ], 675 So.2d [377] at 379 [ (Ala.1996) ] (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 628 (Ala.Civ.App.2002).

Discussion

On appeal, Boudreau argues that the trial court erred in setting aside the August 22, 2007, order of divorce. Citing Goodloe v. LaRoche Industries, Inc., 686 So.2d 335 (Ala.Civ.App.1996), Boudreau maintains that a trial court may not change a couple’s marital status after the death of one of the parties. In Goodloe, the husband died unexpectedly three weeks after the trial court had entered a final judgment divorcing the parties; shortly thereafter, the trial court granted the wife’s motion to vacate the divorce judgment. 686 So.2d at 336. In determining that the trial court had exceeded its jurisdiction when it had vacated the divorce judgment after the husband’s death, this court stated:

“The general rule is that the death of one of the parties to a divorce results in abatement of the divorce action. Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App.1989). The exception to this rule arises when the divorce judgment affects property rights, and in such cases the judgment as it relates to property rights may be altered or modified upon a timely motion. Id. Although a trial court can alter certain terms of a divorce judgment after the death of one of the parties, a trial court does not retain jurisdiction to change the marital status of these parties. Id.”

686 So.2d at 337-38. Boudreau argues that, because the trial court had entered a judgment “forever” divorcing the parties on August 22, 2007, it was without jurisdiction to set aside that order because to do so would change the parties’ marital status after the husband’s death.

Boudreau’s reliance on Goodloe for the proposition that a trial court does not retain jurisdiction to change the marital status of the parties after the death of one of the parties is misplaced. Goodloe, as well as Hill v. Lyons, 550 So.2d 1004 (Ala.Civ.App.1989), the case upon which Goodloe relied, involved a trial court’s attempt to vacate a final divorce judgment, i.e., a judgment that had completely adjudicated all matters in controversy between the litigants. McGill v. McGill, 888 So.2d 502, 504 (Ala.Civ.App.2004). In this case, the parties, by their pleadings, sought not only an alteration of their marital status, but also an equitable division of their marital property. In its August 22, 2007, order the trial court changed the parties’ marital status, but it reserved for a later determination the issue of property division. As such, the order was not a final judgment. See, e.g., McGill, 888 So.2d at 504; and Ex parte Parish, 808 So.2d 30, 33 (Ala.2001). Hence, Goodloe is not on point.

In Jones v. Jones, supra, the parties entered into an agreement regarding the disposition of the marital home. 517 So.2d at 607. The trial court incorporated that agreement into a “temporary order,” but it indicated that other issues, including alimony, the division of personal property, permanent child custody, and child support, would be decided later. 517 So.2d at 608. Before a final judgment on all issues could be entered, Mr. Jones died. 517 So.2d at 607. Noting that the parties had not indicated in their agreement that the disposition of the marital home would be binding in the event of either party’s death, 517 So.2d at 608, the court held that Mr. Jones’s death abated the entire divorce action and nullified the temporary order regarding the marital home. 517 So.2d at 609. In so holding, the court said: “An action for divorce, alimony, attorney fees, and an equitable division of marital property in which there has not been a final judgment does not survive the death of a party.” Jones v. Jones, 517 So.2d at 608 (emphasis added).

Boudreau argues that the present case is distinguishable from Jones for several reasons. Boudreau first argues that the order in Jones was temporary on its face, whereas the order in the present case stated that the parties were “forever” divorced. We do not believe that that distinction warrants a different outcome. In Jones, it was not the phraseology of the “temporary” order, but the fact that it did not resolve all outstanding issues, that rendered that order nonfinal. In this case, although the trial court used more “permanent” language in divorcing the parties, that judgment plainly did not conclusively determine all issues in controversy between the litigants. The facts of this case clearly place it within the rule that a divorce action “in which there has not been a final judgment” abates upon the death of one of the parties.

Boudreau next argues that, in Jones, Mr. Jones’s death was unexpected, but that, in the present case, the order was entered because of the trial court’s knowledge of the husband’s “imminent demise” and with the abatement principle in mind. We note that the trial court did not indicate in its August 22, 2007, order the reason why it divorced the parties at that time. Boudreau has also failed to cite any portion of the record revealing the basis for the trial court’s action. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed.” Friedman v. Friedman, 971 So.2d 23, 31 (Ala.2007). More to the point, the intent of the trial court in entering the order divorcing the parties does not overcome the inherent lack of finality of that order.

Finally, Boudreau argues that, unlike in Jones, after the entry of the order divorcing the parties in the present case, the husband invoked a will that he had intended to leave in effect if he was married at his death. The only reference in the record that speaks to the husband’s will is in Boudreau’s motion to vacate, which asserted that the husband had executed a new will that did not include the wife. Although we recognize that the death of the husband during the pendency of the divorce action and his creation of a new will with the order divorcing the parties in mind creates special problems that have not heretofore been addressed with regard to the law of abatement, we are nevertheless bound by Alabama law, which states that a divorce action abates when a final judgment has not been entered. See Jones, 517 So.2d at 608.

Boudreau contends that affirming on the basis of lack of finality will allow a procedural rule to vitiate the substantive principle that marital status cannot be changed after death. Boudreau requests that we recognize an exception to the rule that a final judgment cannot be entered on part of a claim and that we remand the matter to the trial court for a decision on the reserved property issues. After researching other jurisdictions for a rule allowing for partial finality in divorce judgments, we discovered that Missouri law holds the doctrine of abatement inapplicable “where a dissolution of marriage has been ordered prior to the death of a party, even though the order may be partial, interlocutory or not a final judgment resolving all issues in the case.” Linzenni v. Hoffman, 937 S.W.2d 723, 726 (Mo.1997).

In McMilian v. McMilian, 215 S.W.3d 313 (Mo.Ct.App.2007), the Missouri Court of Appeals, citing Linzenni, explained that the issue of abatement or survival of an action after the death of one of the parties is a question of substantive law and “not a procedural question regarding finality of a judgment for purposes of appeal.” 215 S.W.3d at 316. But see Linzenni, 937 S.W.2d at 727 (Covington, J., dissenting) (suggesting that a procedural rule requiring a final judgment must be complied with before the question whether the case is abated may be addressed). Missouri, however, employs the concept of separable finality of the issues in a dissolution proceeding, and, thus, an order dissolving a marriage is considered final and separate from an order distributing marital property. See Fischer v. Seibel, 733 S.W.2d 469, 472 (Mo.Ct.App.1987). That concept of separable finality is grounded in Missouri’s statutory law. See Fischer, 733 S.W.2d at 472; Mo.Rev.Stat. § 452.360.1 (1978); and State ex rel. Horridge v. Pratt, 563 S.W.2d 168,170 (Mo.CtApp.1978).

Alabama does not have a similar statute that could be interpreted to allow for separable finality of divorce judgments. Moreover, as stated in Jones and McGill, Alabama has repeatedly confirmed in its caselaw that divorce judgments are not final until all matters pursuant to that divorce, including property division, have been adjudicated. See also Peden v. Peden, 931 So.2d 721, 723 (Ala.Civ.App.2005) (divorce judgment was not final when it had not resolved the division of the parties’ debts); and Grubbs v. Grubbs, 729 So.2d 346, 348 (Ala.Civ.App.1998) (judgment was not final when it had not divided the parties’ personal property). We are unable to find, and Boudreau has failed to present, any law from other jurisdictions, other than Missouri, that allows separable finality in divorce judgments for purposes of abatement or appeal. We decline to create the exception to the law of abatement allowing for separable finality as requested by Boudreau. To do so would create new law, which is the province of the legislature. See Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 212 (Ala.2005).

Boudreau next asserts an argument based on the doctrine of judicial es-toppel. “ ‘The doctrine of judicial estoppel “applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted.” ’ ” Ex parte First Alabama Bank, 883 So.2d 1236, 1241 (Ala.2003) (quoting Jinright v. Paulk, 758 So.2d 553, 555 (Ala.2000), quoting in turn Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992), quoting in turn Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988)). That doctrine applies to “issues or positions litigated or maintained in a ‘prior suit.” BSI Rentals, Inc. v. Wendt, 893 So.2d 1184, 1187 (Ala.Civ.App.2004) (emphasis added). In this case, the parties were not involved in any prior legal proceedings involving their marital status. Boudreau premises her argument solely on motions filed by the wife in the present proceeding. Because each of the wife’s motions were filed in the same action, the doctrine of judicial estoppel does not apply in this case.

Boudreau last argues that this court should hold that when an “order dissolving a marriage is vacated after the death of one of the parties because the judgment was not otherwise final, any change to the party’s will in reliance on the divorce order should also be revoked as to the spouse.” An issue that was not before the trial court may not be raised for the first time on appeal. Dinkel v. Dinkel, 598 So.2d 918, 920 (Ala.Civ.App.1991). Neither the issue whether the change to the husband’s will was made in reliance on the divorce order nor the will itself was before the trial court. Moreover, it is not the province of this court to create laws; rather, it is our duty to interpret laws. See Birminghamr-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d at 212. Although we recognize that the facts of this case represent a unique situation, we are without authority to do as Boudreau asks and declare that the will executed by the husband after the entry of the trial court’s August 22, 2007, order is revoked.

AFFIRMED.

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

BRYAN, J., concurs in the result, without writing.

      . See Rule 58(a)(4), Ala. R. Civ. P. (a judge may render an order or a judgment by making a notation in the court records).

      . The wife filed a motion to strike Boudreau’s initial brief to this court. Insofar as the wife's motion requests that this court strike Bou-dreau’s initial brief in its entirety, that motion is denied. We do, however, grant the wife’s alternative request that we strike the exhibits attached to Boudreau's initial brief that were not before the trial court and any references in the brief thereto. We also grant the wife's motion to strike Boudreau's reply brief to this court to the extent that it relies on facts or exhibits not presented to the trial court.

      . Boudreau has not raised, and we do not address, the issue whether the August 22, 2007, order may have been certified by the trial court as final pursuant to Ala. R. Civ. P., Rule 54(b). We do conclude, however, that that order was not so certified and that, even if the trial court had stated that its reasoning for entering the order was because the husband was dying, that order was still not a final judgment of divorce according to Alabama law. See McGill, 888 So.2d at 504.

      . In her argument regarding judicial estoppel, Boudreau asserts that the wife has changed her position regarding the marital status of the parties to Boudreau’s detriment, predominantly with regard to the husband’s revision of his will in reliance on the trial court’s order divorcing the parties. Although we have disposed of this issue before reaching those arguments related to the husband's various wills, we note that the husband’s wills were not in the record on appeal, and we have not considered arguments relating to the same. See Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007) (appellate courts will not consider evidence that is not in the record on appeal). We have limited our consideration to the assertion in Boudreau’s motion to vacate that the husband had executed a will without reference to the wife after the trial court had entered the August 22, 2007, order divorcing the parties.