author: WOODALL, Justice.

text:
    Gary A. SOUTULLO and Janet L. Soutullo v. MOBILE COUNTY. Gary A. Soutullo and Janet L. Soutullo v. Mobile County. Gary A. Soutullo and Janet L. Soutullo v. Mobile County.
    1090041, 1090622, and 1090932.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      Herndon Inge III, Mobile, for appellants.
    C. Mark Erwin and Deena R. Tyler of Satterwhite & Erwin, L.L.C., Mobile, for appellee.
   WOODALL, Justice.

Arising out of an action commenced by Gary A. Soutullo and Janet L. Soutullo against Mobile County (“the County”) seeking, among other things, compensation for storm-water damage, these three appeals involve the Soutullos’ challenges to a judgment on the merits for the County as a matter of law (“JML”)(case no. 1090041), and to two orders disposing of motions filed by the Soutullos (case no. 1090622) and the County (case no. 1090932) seeking fees or costs in the litigation. We affirm the judgment and the orders in all three cases.

I. Factual and Procedural Background

Between September 23, 2002, and April 16, 2003, the County constructed a public-improvement drainage project known as the “Heid Place Storm Water Drainage System” (“the project”). Since the project was constructed, the Soutullos’ property has experienced flooding, which they attribute to the County’s construction or maintenance of the project. On October 15, 2005, Gary Soutullo wrote a letter to the County’s engineering department complaining that his property was being repeatedly flooded by “drainage from [Heid Place].” On November 13, 2006, the Sou-tullos sent the County a “statement of claim,” claiming damage from flood events occurring on August 8, 2006, and November 6, 2006.

On November 29, 2006, the Soutullos sued the County. The complaint stated that the County had “adopted standards or regulations” for storm-water-drainage systems in Mobile County and alleged that it had negligently “fail[ed] to maintain an adequately designed” system. (Emphasis added.) More specifically, the complaint alleged:

“3. In establishing such systems, which are applicable to the property owned by the [Soutullos], and in establishing standards for the maintenance of said storm water and surface water systems, the [County] has been negligent as the standards adopted for the capacity of such drains and the outfall of such drains owned and maintained by the County to handle storm water and surface water runoff are too low; the storm water and surface water drainage systems are inadequate; the maintenance of such system is negligently performed or negligently omitted.
“4. The [County] has been negligent in maintaining such systems as the storm water and surface water drainage systems [are] allowed to flood private property and to damage private property. The [County] has been further negligent in failing to maintain the storm water and surface water drainage systems in the area of the [Soutullos’] real property, to include underground piping and adequate outfall lines and drains, which negligence has existed in the past and continues to exist as of this date. The [County] has been further negligent in failing to maintain said storm water and surface water drainage systems by allowing flooding of and damage to private property at the outfall.”

(Emphasis added.)

The complaint contained counts alleging negligence, trespass, and nuisance. It sought compensatory damages and an injunction abating the alleged nuisance. Between November 29, 2006, and August 20, 2009, the complaint was amended approximately 82 times to add allegations of successive instances of flooding.

The Soutullos employed Kenneth D. Underwood, a “consulting civil engineer,” to serve as an expert witness. On November 2, 2007, the County filed a notice of the taking of Underwood’s deposition. He was deposed on November 9, 2007. On December 8, 2008, Underwood sent the County’s counsel a statement reflecting his fees for deposition preparation and requested payment in the amount of $1,239.28. By June 16, 2009, the fees had not been paid and the Soutullos’ counsel wrote a letter to the County’s counsel requesting payment. The request was denied or ignored.

Trial of the case began before an advisory jury on August 24, 2009. At the close of all the evidence, the County moved for a JML, which the trial court granted from the bench, citing Mitchell v. Mackin, 376 So.2d 684 (Ala.1979). A few weeks later, on September 17, 2009, the trial court entered a judgment “as to all counts and all causes of action for [the County].” In that judgment, the court stated, in pertinent part:

“The [Soutullos], who are husband and wife, purchased their real property, which lies ... several miles outside of the Mobile city limits.
“[The] project took surface water from Heid Place to the existing roadside drainage ditch. [The Soutullos] asserted that it was this project which caused surface storm drainage to flood their real property. They assert that improvements in the drainage system, including a box culvert and the paving of the drainage ditch, as well as negligent maintenance caused or contributed to this flooding.
“The [County] asserted ... that the only effect this project had was to increase the speed of the water in the Heid Place ditch but would not have caused the [Soutullos’] real property to flood.
“Notwithstanding the above, the [Sou-tullos] urged the court to analyze this case under the standards set by the Alabama appellate courts in Lott v. City of Daphne, 539 So.2d 241 (Ala.1989), and [Lott v. City of Daphne ], 624 So.2d 544 (Ala.1993). In other words, the [Soutul-los] argued that the court should apply the law on water regarding incorporated municipalities and the undertaking to construct and maintain a drainage system rather than the law of water flow from upper land owners to the lower land owner in unincorporated areas.
“The case of Mitchell v. Mackin, 376 So.2d 684 (Ala.[1979]) contains a good historical discussion on the differences between the development of the two schools of thought.
“While the court, in announcing its judgment from the bench, advised that it was employing the unincorporated/incorporated analysis, farther review of the caselaw from Reichert v. City of Mobile, 776 So.2d 761 (Ala.2000), and from Byrd v. City of Citronelle, 937 So.2d 515 (Ala.2006), holds for the proposition that the nuisance claimed by the [Soutullos] was ... non-abatable and thus it is also the court’s opinion that even had this case taken place within an incorporated municipality, that the statute of limitations would have ... expired.”

(Emphasis added.) The appeal in case no. 1090041 is from that judgment.

On September 9, 2009, the Soutullos filed a “petition to assess costs,” seeking, pursuant to Rule 26(b)(4)(C)(i), Ala. R. Civ. P., an “order requiring [the County] to pay [their] expert [witness] a reasonable fee for time spent in submitting to the [County’s] deposition.” On November 24, 2009, the trial court denied the Soutullos’ petition. On December 3, 2009, the Soutullos filed a motion, based on Rule 59(e), Ala. R. Civ. P., to “alter or amend” the order denying their fee request. Included in that motion was a request for a hearing. On January 6, 2010, the trial court denied that motion without the requested hearing. The Soutullos filed their notice of appeal from that denial on February 4, 2010. Case no. 1090622 represents that appeal.

Meanwhile, on September 22, 2009, the County filed a “motion to tax costs,” seeking, pursuant to Ala.Code 1975, § 12-21-144, and Rule 54(d), Ala. R. Civ. P., an order requiring the Soutullos to pay, among other things, the cost to the County of taking depositions. The next day, the Soutullos filed an answer to the County’s motion to tax costs. In that answer, they stated, among other things: “The [County] has provided no proof of any costs, nor has the [County] previously submitted any proof of any costs to the [Soutullos].” (Emphasis added.) On December 18, 2009, the County fíled a statement of its claimed expenses. The statement was supported by the affidavit of its counsel, who attested that, “[i]n order to adequately evaluate, prepare and defend [the County’s] case and present evidence at trial,” the County had incurred expenses in taking the depositions of Gary Soutullo, Janet Soutullo, Kenneth Underwood, and Donald Rowe, in the amounts of $1,385.15, $591.20, $575.90, and $107.70, respectively, along with $2,420.07 in “copying expenses,” totaling $5,080.02. Subsequently, on December 21, 2009, the Soutullos filed a second answer to the County’s motion to tax costs. The answer stated, in pertinent part:

“1. The deposition of Gary Soutullo was not ‘used at trial.’
“2. The deposition of Janet Soutullo was not ‘used at trial.’
“3. The deposition of Kenneth Underwood was not ‘used at trial.’
“6. Copying expenses are neither ‘depositions or exhibits used at the trial,’ and are not segregated or itemized or verified.
“7. The expenses claimed by the [County] should be denied.
“8. When the court’s judgment in favor of the [County] is reversed on appeal, the [County] is unlikely to reimburse the [Soutullos].”

On February 23, 2010, the trial court awarded the County $5,080.02 in costs for depositions and copying. Case no. 1090932 represents the Soutullos’ timely appeal from that judgment.

II. Discussion

We will address first the appeal from the JML (case no. 1090041); second, the appeal from the award of deposition costs (case no. 1090932); and finally, the appeal from the denial of the Soutullos’ petition for the fees of their expert witness (case no. 1090622).

A. Case No. 1090011

On appeal, the parties join issue as to only one of the two grounds referenced in the trial court’s judgment, namely, whether this case should turn on the fact that the alleged damage occurred in an unincorporated — as opposed to an incorporated — area of Mobile County. The Sou-tullos contend that we should overrule Mitchell v. Mackin, 376 So.2d 684 (Ala. 1979), and apply the rule set forth in Lott v. City of Daphne, 539 So.2d 241 (Ala.1989). However, the County argues that, in any case, the judgment is supportable on the other ground referenced in the judgment, namely, that this action is barred by the statute of limitations. The County’s brief, at 32. For their part, the Soutullos entirely ignore the statute-of-limitations ground in their briefs to this Court.

In order to secure a reversal, “the appellant has an affirmative duty of showing error upon the record.” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983). It is a familiar principle of law:

“When an appellant confronts an issue below that the appellee contends warrants a judgment in its favor and the trial court’s order does not specify a basis for its ruling, the omission of any argument on appeal as to that issue in the appellant’s principal brief constitutes a waiver with respect to the issue.”

Fogarty v. Southworth, 953 So.2d 1225, 1232 (Ala.2006) (footnote omitted) (emphasis added). This waiver, namely, the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment, results in an affirmance of that judgment. Id. That is so, because “this court will not presume such error on the part of the trial court.” Roberson v. C.P. Allen Constr. Co., 50 So.3d 471, 478 (Ala.Civ. App.2010) (emphasis added). See also Young v. Southern Life & Health Ins. Co., 495 So.2d 601 (Ala.1986). If an appellant defaults on his or her duty to show error by failing to argue in an opening brief an unstated ground that was placed in issue below, then, a fortiori, a challenge to the judgment is waived where, as here, the trial court actually states two grounds for its judgment, both grounds are championed by the appellee, and the appellant simply declines to mention one of the two grounds. Because the Soutullos have pre-termitted discussion of one of the two grounds forming the basis for the JML, we pretermit discussion of the other ground, and we affirm the judgment.

B. Case No. 1090932

In case no. 1090932, the Soutullos appeal from the judgment taxing to the Soutullos, as the losing parties, $5,080.02 in costs for the depositions of Gary Soutullo; Janet Soutullo; Kenneth Underwood, the Soutul-los’ expert witness; and Donald Rowe, as well as copying expenses. They contend that recovery of these expenses was not authorized by § 12-21-144, Rule 54(d), or relevant caselaw. We disagree.

Section 12-21-144 provides:

“The costs of any deposition introduced, in whole or in part, into evidence at the trial by the party taking it shall be taxed as costs in the case upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs.”

Rule 54(d) provides, in pertinent part: “Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.... ” “[Tjaxation of costs under the statute and the rule rests in the discretion of the trial judge, whose decision will not be reversed unless clear abuse is shown.” Vulcan Oil Co. v. Gorman, 434 So.2d 760, 762 (Ala.1983).

The Soutullos do not argue that the trial court exceeded its discretion in entering the judgment. Instead, they insist that the taxation of costs was erroneous as a matter of law, because, they contend, none of these depositions was used at trial in any material manner. It is well settled, however, that “a trial court may, in its discretion, tax all of the costs of any deposition taken in a case, regardless of whether the deposition was used at trial, if the deposition was reasonably necessary.” Bundrick v. McAllister, 882 So.2d 864, 866 (Ala.Civ.App.2003) (citing Ex parte Strickland, 401 So.2d 33 (Ala.1981)). “The trial judge, who was present during the trial and witnessed the parties’ presentations and arguments, is ... in a far better position to determine the reasonable necessity of a particular deposition than an appellate court-” 882 So.2d at 867. Because the Soutullos have demonstrated neither an error of law nor that the trial court exceeded its discretion, they have demonstrated no error requiring reversal.

They also insist that the trial court erred, because, they say, the “County filed no documentary evidence, nor any invoice, nor any cancelled check, nor any proof, whatsoever,” for its claims. The Soutullos’ brief, at 17. This argument ignores the affidavit of its counsel submitted by the County on December 18, 2009. Thus, they essentially argue, we suppose, that an affidavit does not properly substantiate the costs and that some other evidence was needed. However, this argument is made for the first time on appeal. To be sure, the Soutullos pointed out the absence of proof in their September 23, 2009, answer to the County’s motion to tax costs. Nevertheless, after December 18, 2009, when the County filed its statement of costs and supporting affidavit — when the issue should have been raised in the trial court — no such argument was made.

“It is well known that ‘we cannot reverse the judgment of the trial court based on an argument not made below and urged for the first time on appeal.’ ” White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1057 (Ala.2008) (quoting Singleton v. State Farm, Fire & Cas. Co., 928 So.2d 280, 285 (Ala.2005)). For these reasons, the order of the trial court in case no. 1090932 is affirmed.

C. Case No. 1090622

In case no. 1090622, the Soutullos challenge the trial court’s denial of their petition to recover from the County $1,239.28 in fees attributable to the time spent by their expert witness in submitting to a deposition conducted by the County. According to the Soutullos, recovery of these fees is mandated by Rule 26(b)(4)(C)®, Ala. R. Civ. P. As the result of amendments effective February 1, 2010, the subsections of Rule 26(b) have been renumbered; the relevant subsection is now subsection (5), rather than subsection (4). Subsection (5)(C) states, in pertinent part: “Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(5)(A)(ii) and (b)(5)(B) of this rule.”

Rule 26(b)(5)(A)(ii) provides: “Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(5)(C) of this rule, concerning fees and expenses as the court may deem appropriate.” (Emphasis added.) Rule 26(b)(5)(B) states, in pertinent part: “A party may discover facts known or opinions held by an expert who has been retained, specially employed or assigned by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial.” (Emphasis added.)

It is not entirely clear which of these two subsections of Rule 26(b) the Soutullos attempt to invoke as a basis for recovery of fees for their expert witness. Subsection (5)(B) clearly does not apply; it refers to a person “who is not expected to be called as a witness at trial.” Underwood testified extensively at the trial of this case. Subsection (5)(A)(ii), by its express terms, is triggered only by a court order in response to a motion, in contrast to its federal counterpart. There was no such order in this case. Indeed, the Soutullos have identified no Alabama authority for the proposition that fees attributable to the time spent by an expert witness in preparing for, and giving, a discovery deposition are chargeable to the deposing party without an agreement to that effect.

Finally, the Soutullos contend that the order awarding the County costs must be reversed because the trial court ignored their request for a hearing in denying their motion to alter or amend the judgment. We disagree. It is true that “[a] trial court commits error when it fails to conduct a hearing requested by a party on a Rule 59 ... postjudgment motion.” J.H.F. v. P.S.F., 835 So.2d 1024, 1031(Ala.Civ.App.2002). See Rule 59(g), Ala. R. Civ. P. (such motions “shall not be ruled upon until the parties have had opportunity to be heard thereon”). However, the failure to hold a hearing is “not necessarily reversible error.” 835 So.2d at 1031 (emphasis added). See Rule 45, Ala. RApp. P. (“Error Without Injury”).

“Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.”

Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989).

Because the Soutullos have failed to cite apposite authority for the contention that they are entitled to fees attributable to the time spent by Underwood in preparing for, and submitting to, a deposition conducted by the County without a court order, they have failed to demonstrate that their contention has any “probable merit.” Consequently, the error in denying the Soutullos’ motion without a hearing does not warrant reversal.

III. Conclusion

In summary, the judgments and orders appealed from in case no. 1090041, case no. 1090622, and case no. 1090932 are affirmed.

1090041 — AFFIRMED.

1090622 — AFFIRMED.

1090932 — AFFIRMED.

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

      . Donald Rowe was the owner of an engineering firm hired by the County to design the project.

      . Because Rule 26(b), Fed.R.Civ.P., differs materially from its Alabama counterpart, cases from federal courts construing that federal rule are inapposite.


source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte GEICO CASUALTY COMPANY (In re Aundrea Pritchett v. Clifford Paparella and Geico Casualty Company).
    1091420.
    Supreme Court of Alabama.
    Sept. 17, 2010.

      Jason R. Watkins and Kathryn W. Drey of Ball, Ball, Matthews & Novak, P.A., Mobile, for petitioner.
    Wyman 0. Gilmore, Jr., of Gilmore Law Firm, Grove Hill; and Gordon K. Howell of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Chatom, for respondent.
   LYONS, Justice.

Geico Casualty Company (“Geico”), one of the defendants in an action arising out of a vehicular accident, has filed a petition for a writ of mandamus requesting that this Court direct the trial court to vacate its order granting the plaintiffs motion to set aside a previous order that granted Geico’s motion to “opt out” of these proceedings. We grant the petition and issue the writ.

I. Factual Background and Procedural History

On December 24, 2007, a vehicle driven by Aundrea Pritchett was involved in an accident with a vehicle driven by Clifford Paparella. On August 29, 2008, Pritchett sued Paparella, an uninsured motorist, and Geico, her uninsured-motorist (“UIM”) benefits carrier, alleging that Paparella caused the collision. Pritchett’s complaint alleged negligence and wantonness. On September 12, 2008, Geico filed an answer and discovery requests. When Pritchett did not respond to Geico’s discovery requests, the trial court granted Geico’s motion to compel on April 17, 2009. Pritchett responded in May 2009.

Geico began communicating with counsel for Pritchett and Paparella in November 2008 about scheduling depositions. However, Geico says, Pritchett and Paparella did not make themselves available for deposition until March 11, 2010, and February 19, 2010, respectively. Geico states that on March 16, five days after Pritch-ett’s deposition, “after finally having the opportunity to conduct minimal discovery necessary to make a meaningful determination about whether to opt-out of the litigation,” it filed a motion to opt out pursuant to Lowe v. Nationwide Insurance Co., 521 So.2d 1309 (Ala.1988). Pritchett did not oppose the motion; the trial court granted it on March 18.

On March 30, Pritchett filed a motion to vacate the court’s order, arguing that Gei-co’s motion to opt out was not filed within a reasonable time after being served with the complaint and also relying on Lowe. Geico opposed Pritchett’s motion, but on June 23, after a hearing, the trial court entered an order vacating its order of March 18 and concluding that Geico had not timely exercised its right to opt out. The June 23 order also required Geico to appear for trial on August 2, less than six weeks later. Upon Geico’s filing of its petition, we ordered answers and briefs and stayed further proceedings in the trial court.

II. Standard of Review

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). A petition for a writ of mandamus is the appropriate means for challenging a trial court’s refusal to grant a UIM carrier the right to opt out of litigation pursuant to Lowe. Ex parte Aetna Cas. & Surety Co., 708 So.2d 156 (AIa.1998).

III. Analysis

In Lowe, this Court set out the rights of a UIM carrier when its insured is involved in litigation:

“A plaintiff is allowed either to join as a party defendant his own liability insurer in a suit against the underinsured motorist or merely to give it notice of the filing of the action against the motorist and of the possibility of a claim under the underinsured motorist coverage at the conclusion of the trial. If the insurer is named as a party, it would have the right, within a reasonable time after service of process, to elect either to participate in the trial (in which case its identity and the reason for its being involved are proper information for the jury), or not to participate in the trial (in which case no mention of it or its potential involvement is permitted by the trial court).”

521 So.2d at 1310.

Geico argues that the trial court exceeded its discretion when it “unilaterally overruled” Geico’s right to opt out of the litigation and, after vacating the order of March 18 allowing Geico to opt out, ordered Geico to appear for trial in six weeks. Geico acknowledges that whether an insurer’s request to opt out is timely made “is left to the discretion of the trial court, to be judged according to the posture of the case.” Lowe, 521 So.2d at 1310. However, Geico points out that it was not required to opt out early in the litigation.

“Although the insurer may elect to withdraw very early in the case, ... Lowe does not mandate that it do so. We stated in Lowe that the insurer has the option to withdraw from the case, provided that it exercises that option within a reasonable time after service of process. It was also stated that whether the insurer’s motion to withdraw is timely made is left to the discretion of the trial court, to he judged according to the posture of the case. Logically, the insurer would not want to withdraw from the case too early, before it could determine, through the discovery process, whether it would be in its best interest to do so. On the other hand, the insurer cannot delay, unnecessarily, in making its decision whether to withdraw. We believe that it would not be unreasonable for the insurer to participate in the case for a length of time sufficient to enable it to make a meaningful determination as to whether it would be in its best interest to withdraw.”

Ex parte Edgar, 543 So.2d 682, 685 (Ala.1989).

Geico maintains that, in light of the facts of this case, it was reasonable for it to wait until it had the testimony of its insured, Pritchett, and of the alleged tortfeasor, Paparella. Moreover, Geico contends, the delay in conducting the depositions and obtaining sufficient relevant information, especially regarding damage, to enable it make a meaningful decision about opting out was caused by delays and continuances requested by Pritchett and Paparella, proof of which was given to the trial court. Geico contends that it realistically could not have had sufficient relevant information to make a meaningful determination about opting out until it had deposed Pritchett and Paparella.

Geico states that the record before the trial court showed that it began trying to obtain Pritchett’s deposition in November 2008, but Pritchett did not agree to a date until March 2010. Geico moved to opt out within five days after the completion of her deposition. Moreover, Geico says, it was necessary for it to participate in discovery beyond the initial filing of interrogatories and requests for production with its answer in 2008 because Pritchett failed to respond to those initial requests. Geico resorted to a motion to compel in April 2009; Pritchett responded in May 2009. These facts, Geico says, also show the lack of merit in Pritchett’s argument that Geico waived its right to opt out by participating in the litigation. Nevertheless, the trial court granted Pritchett’s motion to vacate the order of March 18 allowing Geico to opt out, and the order of June 23 required Geico to be ready for trial in six weeks.

Pritchett argues that Geico waited too long to opt out because it had answers to discovery showing the amount of her damage several months before the depositions were taken. The purpose of the “reasonable time” standard, Pritchett says, is so that an insurer has a “length of time sufficient to enable it to make a meaningful determination as to whether it would be in its best interest to withdraw.” Edgar, 543 So.2d at 685. However, Pritchett insists, the insurer may not unnecessarily delay its decision. Id. Geico submits that it has found no Alabama case in which a motion to opt out filed five days after the plaintiffs deposition has been taken has been held to be untimely or unreasonably dilatory. This Court’s research has likewise yielded no cases that so hold. Here, although Geico participated in the litigation for approximately a year and a half, we do not find that Geico’s motion to opt out, coming as it did only five days after it took the deposition of its insured, Pritch-ett, was untimely.

Pritchett also argues that Geico should be required to reveal what it learned in the depositions that made its decision to opt out appropriate. According to Pritchett, Geico not only unnecessarily delayed its decision to opt out by waiting until after it took her deposition, but it also failed to provide any proof that the discovery it claimed was necessary before it could make a decision actually had any impact on its decision to opt out. Geico, she argues, has not identified any revelation obtained in the depositions of the parties that made opting out shortly before trial in its best interests. Geico states that it has found no authority to support Pritchett’s argument, reasoning that requiring it to provide the information supporting its decision to opt out is contrary to the principles protecting attorney-client communications and the attorney-work-product doctrine. The decision to opt out in this case, Geico says, was based on a legal analysis by Geico and its counsel, and it should not be forced to reveal information that is clearly privileged. We agree.

Finally, Pritchett argues that Gei-co’s continued participation in the litigation until taking her deposition was unreasonable because much of the delay was caused by the defendants’ seeking a change in venue and, after the trial court denied relief in that regard, petitioning this Court for a writ of mandamus concerning the venue question. The real delay, she says, was because of Geico’s actions in seeking a change of venue and then unsuccessfully petitioning this Court for a writ of mandamus. Geico points out that the venue motion was initiated by Paparella, and, therefore, Geico did not create the resulting delays in litigation while the motion and then the petition for a writ of mandamus were pending. Geico argues that even if it had been responsible for challenging venue, there is no legal authority to support divesting it of its right to opt out of the litigation because it exercised a legal right to contest venue. Litigants should not be forced, Geico contends, to choose between substantive legal rights, such as the right to contest venue, and the right to opt out of litigation. Again, we agree. We find no caselaw or statutory provisions in Alabama that would have required Geico to choose between joining Paparella’s venue litigation or opting out of the case. The time during which the case was stayed while the venue litigation was pending is irrelevant to the timeliness of Geico’s motion to opt out.

The trial court’s order of June 23, in which it vacated its order of March 18 allowing Geico to opt out of this litigation and required Geico to appear for trial on August 2, is contradictory to the requirement in Lowe and its progeny that a UIM carrier must be given a reasonable opportunity to participate in litigation for a sufficient length of time to allow it to make a meaningful determination as to whether its best interests would be served by opting out of the litigation. Therefore, we conclude that the trial court exceeded its discretion when it vacated the March 18 order allowing Geico to opt out of this litigation.

TV. Conclusion

For the reasons previously stated, we grant Geico’s petition for a writ of mandamus; we direct the trial court to vacate its order of June 23 and to reinstate its order of March 18 allowing Geico to opt out of this litigation.

PETITION GRANTED; WRIT ISSUED.

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


author: PER CURIAM. COBB, Chief Justice MURDOCK, Justice

text:
    Ex parte AUTAUGA HEATING & COOLING, LLC, and Richard Alexander Rogers. (In re Lori Lee Wright v. Autauga Heating & Cooling, LLC, and Richard Alexander Rogers).
    1090342.
    Supreme Court of Alabama.
    Sept. 24, 2010.

      Paul M. James, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for petitioners.

      Julia A. Beasley of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   PER CURIAM.

Autauga Heating & Cooling, LLC, and Richard Alexander Rogers (hereinafter referred to collectively as “the petitioners”) petition this Court for a writ of mandamus directing the Montgomery Circuit Court to transfer this action to Elmore County on the basis of the doctrine of forum non conveniens. We grant the petition and issue the writ.

Facts and Procedural History On August 3, 2007, Lori Lee Wright, a resident of Elmore County, was driving northbound on the Deatsville Highway in Elmore County. Rogers, a resident of Montgomery County, was driving a vehicle owned by Autauga Heating & Cooling, which has its principal place of business in Autauga County, and was traveling southbound on the Deatsville Highway. Rogers attempted to turn left into a private driveway and was struck by Wright’s vehicle as he crossed her pathway. Rogers alleges that Wright was traveling at an excessive rate of speed. Emergency medical technicians who reside in Elmore County responded to the scene of the accident and provided emergency treatment to Wright.

Wright sued the petitioners in the Montgomery Circuit Court on March 31, 2009. On May 6, 2009, the petitioners filed a motion to transfer the case to the Elmore Circuit Court based on § 6-3-21.1, Ala. Code 1975, the forum non conveniens statute. The trial court denied the motion.

Standard of Review

‘“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). A writ of mandamus is appropriate when the petitioner can demonstrate ‘(1) a clear right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001). Additionally, this Court reviews mandamus petitions challenging a ruling on venue on the basis of forum non conveniens by asking whether the trial court exceeded its discretion. Ex parte Fuller, 955 So.2d 414 (Ala. 2006); Ex parte Verbena United Methodist Church, 953 So.2d 395 (Ala.2006). Our review is limited to only those facts that were before the trial court. Ex parte Pike Fabrication, Inc., 859 So.2d 1089,1091 (Ala.2002).”

Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).

Discussion

All parties agree that venue in this case is proper in both Montgomery County and Elmore County. However, the petitioners argued in their motion for a change of venue before the trial court as well as in their petition for the writ of mandamus that the case should be transferred to Elmore County pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute. Section 6-3-21.1(a) provides:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of the parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.... ”

“A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified ⅛ the interest of justice.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008) (quoting Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala.2001), and citing Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998)). The petitioners argue that a transfer of the case to Elmore County is justified both for the convenience of the parties and witnesses as well as in the interest of justice. This Court need not analyze the convenience factor because we hold that a transfer is required under the interest-of-justice factor.

This Court addressed the same issue in Ex parte Indiana Mills & Manufacturing, Inc., supra. In Indiana Mills, this Court stated:

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d at 790. Therefore, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex paHe Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex paHe Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007). The petitioners in this case are thus required to demonstrate ‘ “that having the case heard in [Elmore] County would more serve the interest of justice” ’ than having the case heard in [Montgomery] County. Ex paHe First Tennessee Bank, 994 So.2d at 909 (quoting Ex paHe Fuller, 955 So.2d 414, 416 (Ala.2006)).”

10 So.3d at 540.

Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6-3-21.1 by the Alabama Legislature in 1987, a plaintiffs choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6-3-21.1, trial courts now have “the power and the duty to transfer a cause when ‘the interest of justice’ requires a transfer.” Ex paHe First Family Fin. Seros., Inc., 718 So.2d 658, 660 (Ala.1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6-3-21.1 “must be considered in light of the fact that the Legislature used the word ‘shall’ instead of the word ‘may’ in § 6-3-21.1.” 718 So.2d at 660. This Court has further held that “Alabama’s forum non conveniens statute is compulsory.” Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004).

The petitioners argue that a transfer of the case to Elmore County is warranted because (1) the accident occurred in Elmore County, (2) Wright, the plaintiff, lives in Elmore County, (3) Au-tauga Heating & Cooling has its principal place of business in Autauga County with business connections to Elmore County but “few, if any, business connections with Montgomery County,” and (4) witnesses, including the emergency medical technician who assisted in transporting Wright to the hospital after the accident, reside in Elmore County. Wright, however, argues that the case should remain in Montgomery County because, she alleges, (1) Rogers is a resident of Montgomery County, (2) Wright’s treating physician is located in Montgomery County, (3) Baptist Medical Center South and the Montgomery Surgical Center, where Wright was treated for injuries sustained in the accident, are both located in Montgomery County, (4) Wright sought chiropractic treatment and physical therapy in Autauga County, but the chiropractor who treated her also maintains a Montgomery office, (5) the state trooper who investigated the accident is based out of the Montgomery post of the Alabama Department of Public Safety, and (6) two witnesses live in Crestview, Florida, and would be able to fly directly to the Montgomery Regional Airport. Although Wright alleges that these facts are undisputed, nothing before this Court reflects that Wright presented any evidence to the trial court showing that her treating physician is located in Montgomery, that she was treated at Baptist Medical Center South or at the Montgomery Surgical Center, that she sought chiropractic treatment in Autauga County from a chiropractor who also has an office in Montgomery County, or that the state trooper who investigated the accident is based out of the Montgomery post of the Department of Public Safety. Wright merely makes these assertions in her brief in opposition to the petitioners’ motion for a change of venue, and that brief was not accompanied by any affidavits or any other forms of evidence that would have attested to the veracity of these statements. As this Court has previously held:

“‘In considering a mandamus petition, we must look at only those facts before the trial court.’ Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995) (emphasis added). Of course, facts must be based upon ‘evidentiary material,’ which does not include statements of counsel in motions, briefs, and arguments. Ex parte McCord-Baugh, 894 So.2d 679, 686 (Ala.2004). See also Providian Natl Bank v. Conner, 898 So.2d 714, 719 (Ala.2004).”

Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala.2006). See also Ex parte Verbena United Methodist Church, 953 So.2d 395, 399 (Ala.2006). Because the information before this Court regarding Wright’s assertions is contained in “statements of counsel in motions, briefs, and arguments,” it cannot be considered “evi-dentiary material” and thus will not be considered by this Court.

Although we agree with Wright that the case has a connection with Montgomery County because Rogers is a resident of Montgomery County and Autauga Heating & Air may have some business connections there, we hold that the overall connection between Montgomery County and this case is weak and that the connection between the case and Elmore County is strong.

First, the accident occurred in Elmore County. Wright, the plaintiff, is a resident of Elmore County. Further, Rebecca McCullers, the emergency medical technician who responded to the accident, testified in her affidavit that she worked for Haynes Ambulance of Wetumpka, Inc., and that she is a resident of Elmore County. The principal place of business of Haynes Ambulance of Wetumpka, Inc., is in Elmore County. On the other hand, the connection between the case and Montgomery County, given the evidence before the trial court, is weak. Besides the fact that Rogers is resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County-

This Court addressed similar facts in Ex parte Indiana Mills & Manufacturing, Inc., supra. In Indiana Mills, the decedent was driving a garbage truck in Lee County owned by his employer when the raised rear door of the truck struck an overhead railroad trestle, causing the truck to crash. The decedent was killed when he was ejected from the truck. His widow filed a complaint in Macon County against the manufacturers of the garbage truck and the seat belts in the truck and three employees of the decedent’s employer. The employer’s principal place of business was in Tallapoosa County. The employer conducted business in Macon County, and one of the individual defendants lived in Macon County. The defendants moved the trial court to transfer the case to Lee County based on the doctrine of forum non conveniens. The trial court denied that motion, and the defendants petitioned this Court for mandamus relief.

This Court granted the defendants’ mandamus petition and ordered the trial court to transfer the case from Macon County to Lee County based on the “interest of justice” prong of § 6-3-21.1. In doing so, this Court noted that the accident occurred in Lee County, that the law-enforcement and emergency personnel who had responded to the accident were based out of Lee County, that the chief deputy coroner who investigated the decedent’s death did his work in Lee County, and that the records and documents of the fire department that responded to the accident were located in Lee County. Comparing this to the fact that only one of the individual defendant resided in Macon County and that the employer conducted business there, there being no other relevant facts involving Macon County, this Court held that the nexus between Lee County and the case was strong, that the nexus between Macon County and the case was weak, and that the trial court thus had exceeded its discretion in refusing to transfer the case to Lee County.

The accident underlying this action occurred in Elmore County, and the emergency personnel who responded to the accident were from Elmore County. The plaintiff herself is a resident of Elmore County. This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there. We thus conclude that the trial court exceeded its discretion in denying the petitioners’ motion for a change of venue. The trial court is hereby directed to transfer the case to the Elmore Circuit Court.

PETITION GRANTED; WRIT ISSUED.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., and MURDOCK, J., dissent.

COBB, Chief Justice

(dissenting).

Because I dissented in Ex parte Indiana Mills & Manufacturing, Inc., 10 So.3d 536 (Aa.2008), I respectfully dissent in this case. In Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998), after noting that Ala.Code 1975, § 6-3-21.1, the forum non conveniens statute, contained the mandatory term “shall” instead of the permissive term “may,” this Court stated:

“The trial judge has a degree of discretion in determining whether the factors listed in the statute, i.e., ‘the convenience of the parties and witnesses’ and ‘the interest of justice,’ are in favor of transferring the action. This Court will reverse the trial court’s ruling in this regard only upon a showing of an abuse of discretion.”

718 So.2d at 660. In the intervening 12 years since this Court made that statement, I believe that subsequent decisions of this Court have seriously eroded this “degree of discretion.”

In some instances, the facts concerning venue are so clear-cut that a change of venue “in the interest of justice” is justified and there is little to no room for discretion in making that decision. For example, in Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala.2008), a vehicle being operated by an Escambia County resident collided in Escambia County with a vehicle being operated by a Clarke County resident. The Escambia County resident pleaded guilty in an Escambia County court to reckless driving. Subsequently, the Clarke County resident sued the Escambia County resident and McKenzie Oil Company in the Barbour Circuit Court, seeking damages under the Dram Shop Act, Aa.Code 1975, § 6-5-71. Barbour County’s only connection to the case was that McKenzie Oil, the owner of the convenience store, located in Escambia County, that purportedly sold the allegedly intoxicated Escambia County resident alcohol, was headquartered in Barbour County. This Court held, and I believe correctly, that this small nexus between Barbour County and the facts of the case required that the case be transferred to Escambia County in the interest of justice under Ma.Code 1975, § 6-3-21.1.

The facts presented in this case, however, are not as cut and dry. Unlike in McKenzie Oil, where the county seats of the two jurisdictions in question were some 139 miles apart, the two courthouses in question here are a mere 19 miles apart. It further appears that witnesses are located not only in Elmore County, but also in Montgomery County and Autauga County. In situations like this, I believe it is best to allow the trial court the “degree of discretion” to determine whether to transfer the action.

MURDOCK, Justice

(dissenting).

Athough the interest-of-justice prong of our forum non conveniens statute, § 6-3-21.1, Aa.Code 1975, plays a necessary role in some cases, I question whether this Court has extended the statute’s application in other cases beyond what was intended by the legislature. Among other things, my special writing in Ex parte Ford Motor Co., 47 So.3d 234 (Ala.2010), reflects this concern. I indicated in that writing, and I continue to believe, that there is insight and wisdom in Justice Hugh Maddox’s opinion for this Court in Ex parte First Family Financial Services, Inc., 718 So.2d 658 (Ala.1998):

“In Ex parte First Family Financial Services, Inc., 718 So.2d 658, 661 (Ala.1998), Justice Maddox, writing for the Court, stated that a change of venue based on forum non conveniens is appropriate only ‘ “ ‘when trial in the chosen forum would “establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience,” or when the “chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.” ’ ” ’ (Quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), quoting in turn Roster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947).) As Justice Maddox went on to explain, a transfer based on improper venue normally should occur only where the balance of ‘the private- and public-interest factors involved .weight] heavily against litigation in the forum the plaintiff selected.’ 718 So.2d at 661.9
" 9 The views expressed by Justice Maddox on behalf of the Court in First Family Financial Services are consistent with the notion that venue statutes such as § 6-3-7 reflect a legislative determination that the statutorily prescribed locations are generally and presumptively just and appropriate.”

Ford Motor Co., 47 So.3d at 243 (Murdock, J., concurring in the result).

I am not persuaded that the standard expressed by this Court through the opinion authored by Justice Maddox in First Family is satisfied in this particular case.

      . The materials before this Court do not indicate whether Rogers was injured as a result of the collision.

      . Wright argues that an affidavit of the emergency medical technician was not properly before the trial court for its consideration because it was attached to the petitioners' October 2, 2009, supplemental brief to the trial court in support of their motion for a change of venue and the petitioners’ supplemental brief "was denied by the trial court on October 7, 2009.” (Wright's brief, p. 6.) However, the materials before this Court show that the petitioners’ "Motion for Change of Venue/Transfer” was denied by an order the trial court on October 7, 2009. Nothing before this Court indicates that the supplemental brief or its supporting exhibits were ever struck from record; thus, the affidavit is evidence for this Court’s consideration.


author: BOLIN, Justice.

text:
    Wesley Kire PULLUM v. Peggy Kent PULLUM and the Estate of James W. Kelly.
    1090675.
    Supreme Court of Alabama.
    Sept. 24, 2010.

      Lee F. Knowles, Geneva, for appellant.
    W. Terry Bullard, Dothan, for appellee Peggy Kent Pullum.
    Alan C. Livingston and William W. Nichols of Lee & Mclnish, P.C., Dothan, for appellee the Estate of James W. Kelly.
   BOLIN, Justice.

Wesley Kire Pullum appeals from a summary judgment in favor of Peggy Kent Pullum and the estate of James W. Kelly. We affirm.

Facts and Procedural History

John Pullum owned 160 acres of land in Geneva County. John had two. children, Wesley Pullum and Daisy Pullum Mills. John subsequently married Peggy Kent. On March 26, 2007, John instructed his attorney, James W. Kelly, to prepare a warranty deed, conveying 20 acres of the 160 acres to Peggy. The 20-acre parcel included John and Peggy’s homestead. The deed described the land as: “The S 1/2 of the SW 1/4 of the NE 1/4 of Section 16, Township 2, Range 25, Geneva County, Alabama, containing 20 acres more or less.” The deed was recorded in the probate office.

On September 17, 2007, John and Peggy signed a deed prepared by Kelly conveying 80 acres of the 160 acres to Daisy. That same day, John and Peggy signed another deed prepared by Kelly, conveying 80 acres of the land to Wesley. The deed to Wesley described the land as the “S 1/2 of the NE 1/4 of Section 16, T2N, R25E, Geneva County, Alabama.” Kelly prepared a deed for Daisy and one for Wesley. Daisy delivered Wesley’s deed to Wesley, and Wesley’s wife later recorded the deed.

On October 24, 2007, John and Peggy instructed Kelly to file a corrective deed regarding their conveyance to Wesley. The corrective deed provided as follows:

“S ½ of the NE 1/4 of Section 16, T2N, R25E, Geneva County, Alabama. LESS AND EXCEPT: The S ½ of the SW 1/4 of the NE 1/4 of Section 16, Township 2, Range 25, Geneva County, Alabama, containing 20 acres, more or less.
“It is agreed and understood that this deed is a correction deed executed for the purpose of correcting that certain description in that certain deed executed by John Paul Pullum and wife, Peggy Kent Pullum to Wesley Kire Pullum, II, on September 17, 2007. It was not the intent for the grantors to deed to Wesley Kire Pullum the homestead of John Paul Pullum and wife, Peggy Kent Pul-lum. It is further agreed and understood that the description in the deed executed on September 17, 2007, was a clerical error and that John Paul Pullum and wife, Peggy Kent Pullum intended for Peggy Kent Pullum to retain fee simple title to the 20 acres less and excepted from the above describe real estate.”

The corrective deed was recorded. John died and was survived by Peggy and his children, Daisy and Wesley. Kelly died and his law office was closed.

On July 10, 2008, Wesley filed a petition to quiet title to the 20 acres against Peggy. In his petition, Wesley alleged that he was the rightful owner of the 20 acres of land on which John and Peggy’s homestead was located. On August 8, 2008, Peggy filed an answer. On February 19, 2009, Peggy filed a third-party complaint against Kelly’s estate, alleging that Kelly had failed to exclude the 20 acres from the conveyance to Wesley and that she was entitled to compensation from Kelly’s estate for the 20 acres. On March 31, 2009, Kelly’s estate filed an answer and a counterclaim against both Peggy and Wesley. Kelly’s estate sought reformation of the deed to correct the mistake in the legal description of the property in Wesley’s original deed. On April 15, 2009, Peggy filed a counterclaim against Wesley, seeking reformation of the original deed.

On July 6, 2009, Kelly’s estate filed a motion for a summary judgment. Attached to the motion was an affidavit from Kelly’s former legal assistant that provided that she had made a clerical error and had failed to omit the 20 acres from the conveyance to Wesley and that John had. expressed his intent that the 20 acres be conveyed to his wife, Peggy. She stated that Kelly had instructed her to prepare a corrective deed and that the corrective deed include a statement of the intent of both grantors to exclude the 20 acres from the conveyance to Wesley. In response, Wesley filed his own affidavit and an affidavit from Daisy. Wesley’s affidavit provided that Daisy delivered a deed to him in September 2007 and that a dispute over timber on the land led to his discovery that a corrected deed had been filed. Daisy’s affidavit provided that Peggy and John signed the deed conveying land to Wesley, which had been prepared by Kelly with aid of his legal assistant. On October 12, 2009, Peggy joined the summary-judgment motion filed by Kelly’s estate.

On October 22, 2009, the trial court entered a summary judgment in favor of Peggy and Kelly’s estate. The trial court concluded that John and Peggy did not intend to give Wesley the 20 acres of land that included their homestead and that it was a scrivener’s error that had included the 20 acres in the conveyance to Wesley, who did not participate in the transaction conveying the 80 acres to him by mistake. The trial court stated: “In all equity and good conscience the deed shall be reformed to correct the scrivener’s mistake so as to exclude the 20 acres previously conveyed to Peggy Pullum. It would be unconscionable not to correct the mistake.” Wesley timely appealed.

Standard of Review

“Our review of a summary judgment is de novo. ‘A motion for summary judgment is granted only when the evidence demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Ala. R. Civ. P.’ Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply ‘the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. ‘Substantial 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).”

Borders v. City of Huntsville, 875 So.2d 1168, 1176-77 (Ala.2003).

Analysis

Wesley argues that a genuine issue of material fact exists as to whether the unilateral revocation in the corrected deed of the 20-acre interest conveyed to him by the original deed was valid. He also argues that the corrected deed was invalid under the parol evidence rule. Last, Wesley argues that the trial court erred in basing its ruling on unconscionability.

It is well settled in property law that equity may act to reform a deed if the deed does not accurately reflect the intent of the parties. One ground for reformation of a written instrument is mutuality of mistake.

“ ‘Mistake of fact is a well-recognized ground for interposition of a court of equity. 13 Am.Jur.2d Cancellation of Instruments § 31 (1964). Where it appears that by a mutual mistake of all parties the instrument does not conform to or express their intention or agreement, as where by mistake some material part of the instrument is omitted or the deed is drawn to convey a different interest or a greater or lesser estate than was agreed upon, relief may be had in equity against the other party to the conveyance or his privies. 23 Am.Jur.2d Deeds §§ 155,158 (1965).
“ ‘Although a deed in terms expresses the intention of the parties, if there is a material mistake as to the property to which those terms apply, such as to its identity, situation, boundaries, title, amount, value, and the like, a court of equity may grant appropriate relief. Goodrich v. Lathrop, 94 Cal. 56, 29 P. 329 (1892).’ ”

Long v. Vielle, 549 So.2d 968, 971 (Ala.l989)(quoting Palmer v. Palmer, 390 So.2d 1050, 1053 (Ala.1980)).

“[W]hen a writing through mutual mistake of the parties, or mistake of one of the parties, and fraud or deception on the part of the other, or mistake of the scrivener who drew the contract for the parties, contains substantially more or less than the parties intended or the intention of the parties is not expressed ‘due to inapt language’ it will be reformed to express the true intention of the parties.” Atlas Assur. Co., Ltd., of London, England v. Byrne, 235 Ala. 281, 282, 178 So. 451, 452 (1938). Alabama views scrivener’s errors as mutuality of mistake, and such errors are subject to reformation. Sherman v. Woemer Magnolia Farms, Inc., 565 So.2d 601, 604 (Ala.1990). A party seeking to have an instrument reformed must produce clear and convincing evidence that the instrument does not express the intent of the parties. Pinson v. Veach, 388 So.2d 964 (Ala.1980). “[T]he parol evidence rule is no impediment when one seeks to reform a conveyance because of mutual mistake.” West v. Law, 577 So.2d 445, 446 (Ala.1991); § 8-1-2, Ala. Code 1975. Generally, a unilateral mistake is not a ground for reformation. American Liberty Ins. Co. v. Leonard, 270 Ala. 17,115 So.2d 470 (1959). Reformation is authorized when there is fraud or inequitable conduct on the part of the other party to the contract. Id.

In Gallups v. Kent, 953 So.2d 393 (Ala. 2006), a husband and wife executed a deed conveying property to George and Retha Gallups. The husband died and the wife executed a corrective deed purporting to reform the original deed to George and Retha to exclude Retha as a grantee. Years later, a declaratory-judgment action was filed to determine whether Retha’s heirs owned any interest in the property. The trial court determined that Retha’s heirs had an ownership interest. This Court affirmed the trial court’s judgment, stating:

“The purpose of a correction deed is to confirm the title conveyed by the original deed — typically by correcting an error in the description of the property. A grantor cannot use a correction deed to unilaterally terminate or revoke an interest conveyed by the original deed.”

Gallups, 953 So.2d at 395.

Gallups is distinguishable from the present case because in that case only one of the grantors executed the corrective deed, and because the conveyance in Gallups was based on consideration. This Court has addressed reformation based on conveyances that were intended as gifts. In Stone v. Hale, 17 Ala. 557 (1850), the father conveyed, in trust, land to his daughter (a married woman) for life and the reminder to her children. The father’s instructions were to draft the trust instrument so as to secure the property to the daughter free of the debts and control of her husband, but by mistake the attorney failed to include such words. One of the husband’s judgment creditors sought to attach the property. The Court held that equity would act to reform the trust instrument to reflect the father’s intent. There was a similar result in Whitehead v. Brown, 18 Ala. 682 (1851), where the father, who intended to convey property to his daughter, free and clear of her husband’s debt, failed to do so, and the Court held that the deed was entitled to reformation as against the husband’s creditors.

In Berry v. Sowell, 72 Ala. 14 (1882), a father conveyed a house and land to his married daughter, reciting only love and affection as consideration. The husband’s name was not on the deed, and the deed did not exclude the husband’s marital rights. Later, one of the husband’s creditors sought to attach the property to pay the husband’s debts. The Court held that the deed was subject to reformation because there was proof that the husband bought the property and paid a part of the price with moneys belonging to the wife, who conveyed it to her father, under an oral agreement between the three that the property should be conveyed to the wife (daughter) as an equitable separate estate, and that it had not been properly conveyed due to a mistake on the part of the draftsman.

Although this Court has not expressly addressed the issue whether the general rule precluding reformation on the basis of a unilateral mistake when a deed is given in exchange for consideration is applicable when the deed is given as a gift and the grantor seeks reformation, other courts have. Those courts have reasoned that because gifts are unilateral in nature, then only a unilateral mistake is likely; thus, deeds conveying property as a gift may be reformed because of a unilateral mistake on the part of the grantor. The Kentucky Supreme Court has stated:

“[W]here property is conveyed as a gift, the transaction is by its very nature unilateral, and the grantee’s intent or conduct (other than acceptance) plays no part in fixing the rights of the parties. Mutuality of mistake as the basis of relief need only be established when there is a mutuality of obligation, as in a contractual relationship.”

Twyford v. Huffaker, 324 S.W.2d 403, 406 (Ky.1958).

The Court of Appeals of Indiana has explained:

“When a deed is exchanged in a contractual relationship, both the grantor and grantee are obligated to perform in some type of fashion, which creates the opportunity for a mutual mistake to occur. Whereas, when a deed is given as gift, the grantor is the only party with an obligation, and, thus, only a unilateral mistake is likely to occur.”

Wright v. Sampson, 830 N.E.2d 1022, 1027 (Ind.Ct.App.2005).

“It is a well-settled general rule that equity will reform a voluntary instrument of conveyance at the suit of the donor when the instrument does not express the donor’s intent in making the gift.” Kemna v. Graver, 630 S.W.2d 160, 161 (Mo.CtApp.1982). “[Where] [t]he grantee has given nothing for the conveyance [ ] he is deprived of nothing; and he cannot complain if the mistake [in a deed] is corrected.” Tyler v. Larson, 106 Cal. App.2d 317, 319-20, 235 P.2d 39, 41 (1951). “And although a mutual mistake of the parties is required in most instances, if a settlor of a trust receives no consideration for the creation of the trust, a unilateral mistake on his part is sufficient.” Brinker v. Wobaco Trust, 610 S.W.2d 160,164 (Tex. Ct.App.1980). See also D.M. v. D.A., 885 P.2d 94 (Alaska 1994) (recognizing that, if the deed was a gift, then the donor need prove by clear and convincing evidence that she did not intend to transfer the interest she transferred and what specific interest she did intend to convey); Snyder v. Peterson, 62 WashApp. 522, 814 P.2d 1204 (1991) (recognizing the “unilateral gift exception” to reformation); Yano v. Yano, 144 Ariz. 382, 697 P.2d 1132 (Ariz.Ct.App. 1985) (holding that a grantor’s unilateral mistake was a sufficient ground for reformation of voluntary conveyances); Davidson v. Lane, 566 S.W.2d 891, 892 (Tenn.Ct. App.1978) (“[A] court of equity will reform a voluntary conveyance, made without consideration, to reflect the intention of the grantor.”); Nelson v. Harris, 32 N.C.App. 375, 232 S.E.2d 298 (1977) (holding that the grantor of a conveyance for which no consideration was given is entitled to reformation when the deed, as a result of the grantor’s unilateral mistake, fails to express the actual intent of the parties); Westcott v. Westcott, 259 N.W.2d 545, 548 (Iowa Ct.App.1977) (“Insofar as voluntary conveyances are concerned, they are unilateral and the court has the power to reform the deed to express the intentions of the grantor even though, strictly speaking, the mistake is not mutual.”); Gray v. Gray, 233 Ark. 310, 344 S.W.2d 329 (1961) (recognizing that a court of equity has the inherent power to grant relief by reformation of a voluntary conveyance to express the intention of the grantor); Jonas v. Meyers, 410 Ill. 213, 225, 101 N.E.2d 509, 515 (1951) (“Many jurisdictions, however, recognize an exception to the general rule and hold that the donor-grantor of a voluntary conveyance, or his heirs or successors in title, may have reformation as against a grantee, on the ground of mistake and in such case mutuality of mistake is not essential, it being immaterial that the grantee was not cognizant thereof.”); Laundre-ville v. Mero, 86 Mont. 43, 51, 281 P. 749, 750 (1929) (“The reason for the rule is that when one accepts the bounty of another he may not be heard to say, as against the donor, that something else should have been given. The grantor, not having received any consideration for the conveyance, is accorded the privilege of changing his mind and may not be compelled to make a gift previously intended and of which he has since repented, when no rights of others have intervened.”); Lyon v. Balthis, 24 Ohio App. 57, 60, 155 N.E. 815, 816 (1926) (“[W]here the conveyance is purely voluntary, we hold the rule of law to be that if the conveyance represents a mere gift as distinguished from a sale the donor is ordinarily entitled to reformation on account of his own mistake, regardless of whether the mistake was shared in by the donee.”); Schrieber v. Goldsmith, 39 Mise. 381, 384, 79 N.Y.S. 846 (1902) (“Indeed the transaction between the mother and daughter was, in effect, a gift from the former to the latter, and in such a case a mistake of the donor in giving more than she intended at the time to give is sufficient to justify a decree for reformation.”); and Mitchell v. Mitchell, 40 Ga. 11, 15 (1869) (“The fair construction of this latter provision would seem to be, that as between purchasers for a valuable consideration and that grantor, the mistake must be mutual. But as the Court is not authorized in any case to relieve volunteers against mistakes by reforming the conveyance, it can hardly be a fair construction to say that the mistake must have been known to them at the time the deed was executed, before the grantor can be relieved by reforming a voluntary conveyance, executed by him, on account of mistake.”).

In short, although the general rule of equity is that reformation will not lie (in the absence of fraud, inequitable conduct by the other party, or knowledge by one party of the other party’s mistake) unless mutuality of mistake is shown, many courts recognize an exception to this general rule with respect to a voluntary conveyance, holding that a deed may be reformed on the request of the grantor of a voluntary conveyance on the basis of unilateral mistake alone. Based on our case-law, and the support from other jurisdictions cited above, we now hold that where a grantor seeks to reform a deed based on a unilateral mistake and that deed was voluntary, equity will act to reform the deed. This view is also consistent with the Restatement, which states:

“A donative document, though unambiguous, may be reformed to conform the text to the donor’s intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.”

2 Restatement (Third) of Property: Wills & Other Donative Transfers § 12.1 (2003). The requirement of clear and convincing evidence in the Restatement is consistent with our holding in Pinson v. Veach, supra, regarding the reformation based on mutual mistake.

We recognize that Wesley argues that the corrective deed was invalid under the parol evidence rule. As noted in our earlier discussion, this Court has held that parol evidence is admissible to reform a deed based on mutual mistake. See § 8-1-2, Ala.Code 1975. Now that we have held that a court can reform a deed that has been given to a grantee as a gift upon a showing that the grantor made a unilateral mistake, we see no impediment in allowing evidence of the grantor’s intention that contradicts the plain meaning of the text, as well as other evidence of intention, this approach being consistent with our caselaw allowing parol evidence in matters involving mutual mistake (see West v. Law, supra) and also consistent with the above-quoted view of the Restatement.

We must now address whether the trial court erred in granting Peggy and Kelly’s estate’s summary-judgment motion. In support of their motion, they filed the affidavit of Kelly’s former legal assistant. The legal assistant stated that she had made a clerical error in failing to omit the 20 acres from the deed conveying the property to Wesley because the grantors did not intend to convey the 20 acres to Wesley. In response, Wesley submitted his own affidavit and an affidavit of his sister, Daisy. Wesley’s affidavit stated that Daisy delivered a deed to him in September 2007 and that a dispute over timber on the deeded land led to his discovery that a corrected deed had been filed. Daisy’s affidavit stated that Peggy and John signed the deed conveying land to Wesley that had been prepared by Kelly with the aid of his legal assistant. Nothing in the affidavits filed by Wesley contradicts the evidence presented by Peggy indicating that Peggy and John never intended to give Wesley the 20 acres on which their homestead was located and that the mistake was a unilateral mistake on their part.

Last, Wesley argues that the trial court found that the original deed, which included the 20 acres, was unconscionable and that the trial court erred in reforming the deed based on unconscionability. He cites several cases discussing the elements of unconscionability. Although the trial court uses the word “unconscionable” in its order, the trial court appears to have been attempting to convey the idea that in reforming the deed it was providing equitable relief. It should be noted that courts have occasionally referred to inequitable conduct as unconscionable. See, e.g., Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1224 (Ala.2010) (discussing the argument that the word “unjust” in the phrase “unjust enrichment” is referring to “in equity and good conscience”); Mantiply v. Mantiply, 951 So.2d 638 (Ala.2006) (discussing wrongful conduct as unconscionable conduct). Nothing in the trial court’s order, taken in context, indicates that the trial court found that the original deed was unenforceable as unconscionable.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, MURDOCK, and SHAW, JJ., concur.

      . No one disputes that the original deed to Wesley and the corrective deed were intended as a gift. The language in both deeds is as follows: "That in consideration of Ten Dollars and other valuable consideration to the undersigned grantor (whether one or more), in hand paid by the grantee herein, the receipt whereof is acknowledged, we, JOHN PAUL PULLUM and wife, PEGGY KENT PULLUM, (herein referred to as grantor, whether one or more), do hereby grant, bargain, sell and convey subject to the life estate reserved herein unto WESLEY KIRE PULLUM, II (herein referred to as grantee, whether one or more), the following described real estate, situated in Geneva County, Alabama....” See also Snyder v. Peterson, 62 Wash.App. 522, 529 n. 7, 814 P.2d 1204, 1208 n. 7 (1991)(“[A]ny nominal consideration accompanied by love and affection' is sufficient to justify reformation of a deed.”).

      . “ ‘An unconscionable ... contractual provision is defined as a ... provision “such as no man in his sense and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” ’ " Southern United Fire Ins. Co. v. Howard, 775 So.2d 156, 163 (Ala.2000) (quoting Layne v. Garner, 612 So.2d 404, 408 (Ala.1992)).

      . "[Section 8-1-2 and § 35-4-153] enact into statutory law, in general terms, the law of reformation of instruments long existent. One principle, embodied in these general terms, and particularly applicable to the case before us, is thus stated: '... where "through mistake a written agreement contains substantially more or less than the parties to it intended, or, from ignorance or want of skill in the draftsman, the object and intention as contemplated by the agreement is not expressed in the written instrument by reason of the use of inapt expressions, equity will interpose and reform the agreement.” ' ”
      City of Oneonta v. Sawyer, 244 Ala. 25, 26, 12 So.2d 82, 83 (1943) (quoting West End Savings Bank v. Goodwin, 223 Ala. 185, 187, 135 So. 161, 162 (1931)).


author: MURDOCK, Justice.

text:
    Ex parte Kristie HAYNES. (In re Kristie Haynes v. Jason Williams et al.).
    1081257.
    Supreme Court of Alabama.
    Sept. 30, 2010.
    Frank R. Farish and Timothy Holdefer of Law Offices of Frank R. Farish, Birmingham, for petitioner.
    W. Casey Duncan, Conrad M. Fowler, Jr., and William R. Justice, Columbiana, for respondents Sam’s Trucking, Inc., James Casey, and Casey Trucking, Inc.
   MURDOCK, Justice.

Kristie Haynes petitions this Court for a writ of mandamus directing the trial court to set aside its order granting the defendants’ motion to set aside the default judgment entered against them on Haynes’s complaint in an action resulting from a vehicle collision and alleging negligence and wantonness. We grant the petition and issue the writ.

I. Facts and Procedural History

Though not stated directly, it appears from the submissions filed in conjunction with Haynes’s petition that she was involved in a vehicle collision with a truck driven by Jason Williams, who was apparently employed by and working in the line and scope of his employment with Sam’s Trucking, Inc. (“Sam’s Trucking”), at the time of the accident. Sam’s Trucking is a corporate affiliate of Casey Trucking, Inc. (“Casey Trucking”), and both operated out of the same premises and are owned by defendant James Casey.

Haynes sued Williams, Casey, Sam’s Trucking, and Casey Trucking on October 26, 2006, alleging that she sustained severe injuries to her spine and neck as a result of a vehicle collision caused, she alleged, by the defendants’ negligence and wantonness. Haynes stated that her medical expenses for her injuries were $39,500. She alleged that she sustained pain and suffering, permanent physical impairment, loss of employment, loss of income, and loss of quality of life and that she suffered mental anguish as a result of the accident. Haynes requested $350,000 in total damages for her injuries.

The complaint was served on the following dates: on Sam’s Trucking on November 28, 2006; on Williams on July 8, 2007; on Casey on August 6, 2007; on Casey Trucking on September 10, 2007. For reasons not explained in the submissions before us, none of the defendants filed responsive pleadings to the complaint. Accordingly, Haynes filed for and received from the trial court an entry of default judgment against all the defendants on January 15, 2008. The trial court awarded Haynes her requested damages of $350,000.

On February 14, 2008, the defendants filed a “Motion to Set Aside Default Judgment,” in which they requested “pursuant to Rule 55(c), Alabama Rules of Civil Procedure,” that the trial court set aside its January 15, 2008, order of default judgment. The motion provided the following explanation as the sole ground for the requested relief:

“5. The undersigned is aware of and concedes that no responsive pleading has been filed on behalf of his clients, the Defendants in the instant case. However, that failure to answer, plead or otherwise defend is purely a matter of oversight on the part of the attorney and is/was inadvertent.
“6. The Defendants should not be punished for their attorney’s excusable neglect. They are prepared to go forward with this litigation.”

The motion was not accompanied by any exhibits or a brief containing an argument in support of the motion.

Haynes filed a response to the defendants’ motion to set aside the default judgment in which she noted that the motion “merely sets forth bare legal conclusions without factual support.” In conjunction with this observation, she noted that the defendants did not argue that they were entitled to relief under any of the three factors for setting aside a default judgment articulated by this Court in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988).

Despite Haynes’s objections, the trial court entered an order on June 5, 2008, purporting to set aside the default judgment against the defendants. The following day, Haynes filed a “Motion to Rescind” the trial court’s June 5, 2008, order pursuant to Rule 59.1, Ala. R. Civ. P. Haynes observed that the trial court had entered its order more than 90 days after the defendants had filed their motion to set aside the default judgment, and that there had been no agreement between the parties to extend the time under which the trial court could rule on the motion. Therefore, Haynes argued, the defendants’ motion to set aside the default judgment was denied by operation of law on May 14, 2008.

Five months later, on November 10, 2008, the trial court entered an order granting Haynes’s motion to rescind the court’s June 5, 2008, order purporting to set aside the default judgment, and it reinstated its previous order of default. The order also provided that “the Court is considering Defendants’ Motion To Set Aside Default Judgment as a 60(b)[, Ala. R. Civ. P.,] motion.” Haynes filed two responses objecting to the trial court’s construing the defendants’ motion to set aside the default judgment as a Rule 60(b), Ala. R. Civ. P., motion. She again noted that the motion failed to set forth substantive reasons why the defendants were entitled to have the default judgment set aside under the Kirtland factors. She also stated various reasons why she believed the defendants were not entitled to relief under Rule 60(b), Ala. R. Civ. P.

On December 24, 2008, the defendants filed what they styled “Defendants’ Argument and Citations to Authority in Support of Defendants’ Motion to Set Aside Default Judgment.” In this motion, the defendants contended, for the first time, that they were entitled to have the default judgment set aside under the Kirtland factors. The defendants attached to this filing an affidavit from an alleged eyewitness to the accident as well as records from the Calera Fire and Rescue Department indicating that Haynes had refused medical treatment and transport to a hospital at the scene — intending to show their meritorious defense. The filing also included arguments and authorities for why the defendants believed that the trial court possessed the authority to construe their original motion to set aside the default judgment as a Rule 60(b) motion.

On June 11, 2009, the trial court entered an order treating the defendants’ motion as a Rule 60(b) motion and granting that motion, i.e., setting aside the default judgment. Haynes petitions this Court for a ■writ of mandamus directing the trial court to set aside that order.

II. Standard of Review

“When considering a petition for a writ of mandamus compelling a trial court to vacate an order setting aside a default judgment, the standard this Court applies is whether, in setting aside the default judgment, the trial court exceeded its discretion.” Ex parte Bolen, 915 So.2d 565, 568 (Ala.2005).

III. Analysis

Haynes contends that the trial court exceeded its discretion in construing the defendants’ Rule 55(c) motion as a Rule 60(b) motion. Haynes argues that once the defendants’ “Motion to Set Aside Default Judgment” was denied by operation of law under Rule 59.1, on May 14, 2008, the defendants’ remedy was to appeal — a remedy that the defendants failed to pursue.

The defendants contend that the trial court acted appropriately because, they say, their “Motion to Set Aside Default Judgment” was a Rule 55(c) motion or, alternatively, a Rule 60(b) motion. The defendants acknowledge that the motion itself stated that it was being filed “pursuant to Rule 55(c),” but they also note that the motion states that the failure to file a responsive pleading was the result of “oversight” and “their attorney’s excusable neglect” and that it was “inadvertent.” They argue that “these contentions are clearly consistent with Rule 60(b)(1)” and that, after seeking relief under Rule 55(c), the defendants sought relief in the alternative under Rule 60(b)(1). More specifically, the defendants contend that when their Rule 55(c) motion was denied by operation of law, it “quickened” the Rule 60(b) aspect of the motion, allowing it to be considered by the trial court. For support, the defendants cite Ex parte Lang, 500 So.2d 3, 4-5 (Ala.1986), in which this Court stated, in pertinent part:

“It is clear that under our Rules of Civil Procedure the nomenclature of a motion is not controlling. Ex parte Hartford Ins. Co., 394 So.2d 933 (Ala. 1981). Notwithstanding the designation in its title, the document filed on October 7, 1985, was clearly a Rule 60(b) motion (albeit, prematurely filed) seeking relief under grounds (1) and (6); the trial court properly treated it as such. The Alabama Rules of Civil Procedure do not contemplate the filing of a Rule 60(b) motion during the pendency of a Rule 55(c) motion. But while the Rules do not contemplate it, they do not preclude it, either. Under Rule 59.1, the Rule 55(c) motion was denied as a matter of law on November 26, 1985 (90 days after August 28, 1985); upon that denial, the default judgment of August 12 became ‘final’ within the contemplation of Rule 60(b) — '[o]n motion ... the court may relieve a party ... from a final judgment’ — and the court was free to consider the Rule 60(b) motion, which had been theretofore premature. We consider that the Rule 60(b) motion was quickened and became a pending motion as of November 27, 1985, without the necessity of a refiling. Thus, the court had jurisdiction of that motion at the time of its order granting the motion on December 3,1985.”

Lang involved successive Rule 55(c) and Rule 60(b) motions, but as the defendants observe, this Court subsequently allowed an alternative Rule 55(c) and Rule 60(b) motion in Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989). As the Court of Civil Appeals has succinctly explained:

“[W]hile it frowns upon the practice, Alabama law allows a party to join a request for relief from judgment under Rule 60(b) with a request for a post-judgment remedy affected by Rule 59.1’s 90-day ‘automatic denial.’ See Ex parte Vaughan, 539 So.2d 1060 (Ala. 1989). In Vaughan, our Supreme Court considered the propriety of a motion seeking an order pursuant to Rule 55(c), Ala. R. Civ. P., setting aside a default judgment and alternatively seeking relief from the judgment pursuant to Rule 60(b). Relying upon its earlier opinion in Ex parte Lang, 500 So.2d 3, 5 (Ala. 1986), the Vaughan court concluded that such a motion seeking alternative relief was not precluded by the Rules of Civil Procedure, although ‘the better practice is to file a Rule 60(b) motion only when there is a final judgment in the case.’ 539 So.2d at 1061.”

Ex parte Gamble, 709 So.2d 67, 70 (Ala. Civ.App.1998).

The problem with the defendants’ argument is that in the motion filed here, no distinction is made between the grounds for relief under Rule 55(c) and those for relief under Rule 60(b). The defendants’ motion makes no mention of Rule 60(b), but, more importantly, in order plausibly to be considered a viable Rule 60(b) motion it must ask for relief on grounds that amount to more than a request for a mere reconsideration of the denial of the defendants’ original Rule 55 motion. Here, the sole ground for relief stated in the motion was the defendants’ attorney’s “inadvertence” and “excusable neglect.” Because there existed nothing in the motion to distinguish the Rule 55(c) motion from the purported Rule 60(b) motion, any Rule 60(b) aspect to the motion would simply constitute a motion to “reconsider” the Rule 55(c) motion.

In McIntyre v. Satch Realty, Inc., 961 So.2d 135, 138-39 (AIa.Civ.App.2006), the Court of Civil Appeals stated:

“Although McIntyre and 4M’s Rule 60(b) motion provided more factual detail than their previously denied Rule 55(c) motion had and although their Rule 60(b) motion actually explained the allegedly meritorious defenses to which they had merely alluded in their previous motion, ‘the relief sought reveals that [McIntyre and 4M were] simply attempting to have a second review of the [default] judgment and to have the trial court reconsider its previous denial of [their] post-judgment motion.’ Foster v. Foster, 636 So.2d 467, 468 (Ala. Civ.App.1994). Rule 60(b), however, cannot serve as a basis for a motion that, in effect, seeks a reconsideration of matters already considered by the trial court in a previous postjudgment motion when the facts alleged in the Rule 60(b) motion ‘were known by the moving party at the time of his original [post-judgment] motion.’ Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985). Such a Rule 60(b) motion, and a subsequent appeal of the denial of such a motion, cannot be used as a substitute for an appeal of the trial court’s original judgment. See, e.g., Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001) (‘Alabama precedent is clear that a Rule 60(b) motion may not be used to seek reconsideration of a trial court’s denial of a postjudgment motion, nor are Rule 60(b) motions substitutes for appeal.’); and Pace v. Jordan, 348 So.2d 1061 (Ala. Civ.App.1977) (having failed to obtain review by appeal following denial of his postjudgment motion for a new trial, the plaintiff may not obtain review pursuant to the filing of a Rule 60(b) motion, because that rule does not provide a substitute for an appeal).”

(Emphasis added.) See also Ex parte Dowling, 477 So.2d 400, 408 (Ala.1985) (stating that “[wjhere the facts alleged in the motion to reconsider were known by the moving party at the time of his original motion, Rule 60(b) does not authorize a motion to reconsider”); Brown v. Martin, 394 So.2d 375, 377 (Ala.Civ.App.1980) (declining to treat appellant’s motion to reconsider an order denying his motion to set aside a default judgment as a motion for relief under either Rule 60(b)(1) or 60(b)(6) because the “motion was nothing more than a motion for the trial court to reconsider its previous order. Practically nothing different was presented by the motion to reconsider than was presented by the motion to set aside the default judgment.”).

Similar to the situation in McIntyre, the defendants in their December 24, 2008, filing related information concerning their alleged meritorious defense that could have been presented in their initial February 14, 2008, motion. (Specifically, the defendants explained that accident records and eyewitness testimony indicated that Haynes was not injured in the accident.) In short, the substance of this subsequent filing confirmed that the defendants were simply attempting, through Rule 60(b), to obtain another review of the denial of their postjudgment motion for relief from the default judgment.

The lack of any distinction in the grounds for relief based on Rule 55(c) as opposed to Rule 60(b) in the defendants’ motion along with the fact that the defendants presented information in their subsequent filing that could have been presented in their original motion prohibits our viewing the defendants’ motion as, alternatively, both a Rule 55(c) motion and a Rule 60(b) motion; to do so would be to permit a Rule 60(b) motion to be used as a substitute for an appeal. See Dowling, All So.2d at 404 (noting that “[a] motion to reconsider cannot be used as a substitute for an appeal”).

IV. Conclusion

The defendants’ motion to set aside the default judgment cannot succeed as a motion seeking relief under both Rule 55(c) and Rule 60(b). Even if it could be deemed a motion asking in the alternative for relief under Rule 60(b), the defendants’ motion would in this respect add nothing to the previously denied Rule 55(c) motion and thus would constitute an improper attempt to use a Rule 60(b) motion as “a substitute for an appeal of the original judgment.” Accordingly, the trial court erred in treating the defendants’ motion to set aside the default judgment as a Rule 60(b) motion and in granting it. We therefore grant Haynes’s mandamus petition and direct the trial court to set aside its order granting the defendants’ motion and to reinstate its default judgment.

PETITION GRANTED; WRIT ISSUED.

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

      . The trial court's order entering a default judgment indicates that Haynes also named as a defendant Ronald English, but neither the briefs of the parties nor the submissions in support of die mandamus petition explain English’s connection to the case. In any event, Haynes apparently stipulated that English should be dismissed as a defendant in the case, and the trial court granted the dismissal. English is not involved in this petition.

      . The Kirtland Court held that
      "a trial court’s broad discretionary authority under Rule 55(c)[, Ala. R. Civ. P.,] should not be exercised without considering the following three factors: 1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.”

        Kirtland, 524 So.2d at 605.

      . Rule 59.1, Ala. R. Civ. P., provides, in pertinent part:
      “No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

      . In this manner, the defendants also seek to avoid any difficulty with the timing of the filing of their purported Rule 60(b) motion. If the motion is construed as, alternatively, both a Rule 55(c) motion and a motion for relief under Rule 60(b)(1), then the defendants filed their Rule 60(b) motion within four months after the initial judgment, as permitted by Rule 60(b). If, on the other hand, the defendants’ motion was not considered filed as a Rule 60(b) motion until the trial court construed it as such in its November 10, 2008, order, then it was not timely filed.

      . Compare Continental Grain Co. v. Small-wood, 669 So.2d 995, 997 (Ala.Civ.App.1995):
      "We first note that the employer in the case sub judice is not attempting to avoid the strictures of Rule 59.1 by asking this court to treat a properly filed Rule 55 motion as a Rule 60(b) motion. See, for example, Sexton v. Prisock, 495 So.2d 581 (Ala. 1986); Ex parte Adams, 534 So.2d 626 (Ala. Civ.App.1988); Ex parte Colonial Life & Accident Insurance Co., 410 So.2d 73 (Ala.Civ. App.1982); and Carnes v. Carnes, 365 So.2d 981 (Civ.App.1978), cert, denied, 365 So.2d 985 (Ala. 1979). "The employer’s motion specifically asked for relief pursuant to Rule 55 or Rule 60, and enumerated specific grounds for relief in each of the alternative theories. At most, the employer's Rule 60 motion was filed prematurely, i.e., before there was a final judgment.”
      (Some emphasis original; some emphasis added.) As previously noted, Lang involved separate and successive postjudgment motions; the second motion expressly asserted grounds for relief under Rules 60(b)(1) and (6) that, for all that appears from the opinion of the Court, had not been raised in the earlier motion.