author: BOLIN, Justice.

text:
    The TRAVELERS INDEMNITY COMPANY OF CONNECTICUT v. James MILLER, as the personal representative of the estate of Willie A. Miller, deceased.
    1100619.
    Supreme Court of Alabama.
    Dec. 2, 2011.

      Brenen G. Ely and Candace L. Hudson of Ely & Isenberg, LLC, Birmingham, for appellant.
    J. Todd Miner of Najjar Denaburg, P.C., Birmingham; and Roger H. Bedford of Bedford, Rogers & Bowling, PC, Russell-ville, for appellee.
   BOLIN, Justice.

The Travelers Indemnity Company of Connecticut (hereinafter “Travelers”) appeals from a $251,913.91 judgment against it and in favor of Willie A. Miller. We reverse and remand.

Smith House Movers, Inc. (“Smith”), was hired as a subcontractor for a corporation that was constructing a new bypass highway in Red Bay; Smith was hired to move houses located in the path of the roadwork to be performed. Smith had to have a certificate of insurance to perform the work, and it obtained a commercial general-liability policy (hereinafter “CGL policy”) and an automobile policy from Travelers, both of which were effective from December 30, 2004, to December 30, 2005.

On September 15, 2005, Miller entered into a contract with Smith to purchase one of the houses and to move it from Red Bay to Vina. The contract provided that Smith was to move the house, pour a foundation, and place the house on the new foundation in Vina. Miller paid Smith $37,500 for the house and those services. The house was to be moved by the Thanksgiving holiday 2005. Sometime in November, Smith cut the house into two pieces and delivered the first piece to Vina. However, the foundation was improperly poured and did not fit, and the house had been damaged in the move. Eventually, Miller had to hire another company to complete moving the house and to repair the damage.

On January 23, 2006, Miller sued Smith, alleging breach of contract, negligence, and wantonness. On February 7, 2006, Smith was served with notice of the complaint. Smith did not answer or appear. On March 9, 2006, Miller applied for an entry of default against Smith. On March 13, 2006, the circuit court entered a default judgment against Smith in the amount of $152,500 plus court costs. Dave Pizur & Associates (“Pizur”) was listed as the agent on Smith’s CGL policy and automobile policy with Travelers, and on May 19, 2006, Miller’s counsel attempted to contact Travelers through Pizur by sending Pizur a letter and a copy of the certificate of judgment against Smith. On June 8, 2006, counsel sent Pizur another letter requesting payment of the judgment. The letter indicated that counsel had received telephone calls and a fax from Pizur. On June 13, 2006, and again on June 14, 2006, Pizur forwarded counsel’s correspondence and a “quick fax” to Travelers that set out a brief statement of the claim. On July 7, 2006, not having heard from Pizur or Travelers, Miller’s counsel sent Pizur another letter. On July 10, 2006, Pizur referred counsel to Kay Stovall, an employee with Travelers. On October 17, 2006, Travelers notified Smith and Smith’s bankruptcy attorney that it was denying coverage of the claim based on lack of notice because, Travelers stated, it had not received notice of the claim until “July 14, 2006,” and that attempts to contact Smith had been to no avail. Travelers also denied the claim on the ground that neither the CGL policy nor the automobile policy covered Miller’s claim. Travelers did not inform Miller or his counsel that it was denying the claim.

On January 22, 2007, the bankruptcy court lifted its stay and allowed Miller to collect the default judgment it had obtained against Smith only to the extent of any insurance coverage that might be available. On October 17, 2007, Travelers sent Smith and its bankruptcy attorney a letter again denying coverage for the claim.

On January 21, 2008, Miller sued Travelers pursuant to § 27-23-2, Ala.Code 1975, which provides a judgment creditor with a right of a “direct action” against the judgment debtor’s (Smith’s) insurer. Miller sought to apply the proceeds of Smith’s CGL policy and automobile policy' issued by Travelers to the default judgment Miller had obtained against Smith. Travelers answered and asserted, among other things, that the conditions precedent under the policies had not been met. On July 9, 2009, Travelers filed a summary-judgment motion on the ground that because the notice conditions of the CGL and automobile policies had been breached, neither policy provided coverage for Miller’s claims. The trial court denied the motion. On March 4, 2010, Travelers filed a second motion for a summary judgment, arguing that the CGL and automobile policies did not provide coverage based on the terms in the policies, including certain exclusions. The trial court denied the motion. On May 14, 2010, the trial court conducted a bench trial. On September 17, 2010, the court entered a judgment in favor of Miller. On October 13, 2010, Travelers filed a motion to alter, amend, or vacate the judgment, which was denied by operation of law. Travelers timely filed its notice of appeal.

Issues

Travelers argues that the trial court erred in denying its July 9, 2009, motion for summary judgment based on late notice of the claim. Travelers also argues that the trial court erred in denying its summary-judgment motion filed on March 4, 2010, regarding policy coverage of the claim. Travelers goes on to argue that, if the summary-judgment standard of review is not applicable, thén the trial court’s final judgment in favor of Miller should be reversed on the grounds that late notice bars recovery; that there was no “occurrence” or “accident” as those terms are defined in the policies; and that certain exclusions in the policies bar recovery. Last, Travelers argues that postjudgment interest was improperly applied.

Law and Analysis

We disagree with Travelers’ argument that this Court should address the trial court’s denial of its summary-judgment motions. “[W]e do not review a trial court’s denial of a summary-judgment motion following a trial on the merits. See Grayson v. Hanson, 843 So.2d 146 (Ala.2002); Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994); see also Lind v. United Parcel Service, Inc., 254 F.3d 1281, 1283-84 (11th Cir.2001).” Mitchell v. Folmar & Assocs., LLP, 854 So.2d 1115, 1116 (Ala.2003)0.

The principal legal issue presented in this appeal is whether, under the evidence presented, the trial court could properly conclude that Travelers was bound to provide coverage to Smith with respect to the occurrences described in Miller’s complaint. Because there were questions of fact regarding notice and coverage, the trial court received testimony in both oral and written form before entering its final judgment. Therefore, the ore ten-us standard of review applies: “Where evidence on an issue is presented both orally and by deposition, the ore tenus rule affords the trial court’s finding a presumption of correctness.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). “Under that standard, a trial court’s findings of fact based on oral testimony and a judgment based on those findings are given a presumption of correctness.” Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994). However, “that standard’s presumption of correctness has no application to a trial court’s conclusions on questions of law.” Id.

We now turn to whether the notice provided to Travelers of Miller’s claims against Smith was timely. The CGL policy provided that Smith must notify Travelers “as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” The CGL policy also provided that Smith had to “immediately record the specifics of the suit” and to notify Travelers “as soon as practicable” if a claim or an action was filed against it. The automobile policy provided that Smith provide Travelers with “prompt notice of the ‘accident’ or ‘loss.’ ” The automobile policy also provided that Smith was to “immediately send” Travelers copies of any suit filed against it. On September 15, 2005, Miller entered into a contract with Smith to move a house, which Smith attempted in November 2005. On January 23, 2006, Miller sued Smith, alleging breach of contract, negligence, and wantonness. On February 7, 2006, Smith was served with notice of the complaint. Smith did not answer or appear. On March 9, 2006, Miller applied for an entry of default against Smith. On March 13, 2006, the circuit court entered a default judgment against Smith. The trial court found that Travelers received notice of that judgment on June 13, 2006. Eventually, Miller brought a direct action against Travelers under § 27-23-2, seeking the insurance proceeds.

“[T]he failure of an insured to comply within a reasonable time with such conditions precedent in an insurance policy requiring the insureds to give notice of an accident or occurrence releases the insurer from obligations imposed by the insurance contract.” Reeves v. State Farm Fire & Cas. Co., 539 So.2d 252, 254 (Ala.1989). The term “as soon as practicable” has been interpreted “to mean that ‘notice must be given within a reasonable time in view of the facts and circumstances of the case.’ ” Haston v. Transamerica Ins. Servs., 662 So.2d 1138, 1141 (Ala.1995) (quoting Pharr v. Continental Cas. Co., 429 So.2d 1018, 1019 (Ala.1983)). “Prompt” notice has also been interpreted to mean that such notice must be given within a reasonable time in view of all the facts and circumstances. St. Paul Fire & Marine Ins. Co. v. Elliott, 545 So.2d 760 (Ala.1989). Only two factors are to be considered in determining the reasonableness of a delay in giving notice to the insurer: the length of the delay and the reasons for the delay. United States Fid. & Guar. Co. v. Baldwin County Home Builders Ass'n, 770 So.2d 72, 75 (Ala.2000). Whether notice of the occurrence or claim was given to the insurer within a reasonable time rests on the reasonableness of the delay. Id. Prejudice to the insurer from any such delay in providing notice is not a factor. Id.

In this case notice was provided by an injured party; the insured has never given notice to insurer. We note that Travelers does not dispute that written notice by an injured party instead of its insured could satisfy the notice requirements of the policies. Instead, the issue raised by Travelers is whether such notice was timely. The Court of Civil Appeals has stated:

“Safeway Insurance Co. [of Alabama v. Thompson, 688 So.2d 271 (Ala.Civ.App.1996),] by recognizing an injured party’s right of direct action against an insurer when the injured party has, himself, given notice of the underlying lawsuit to the insurer, even when the insured has failed to do so, arguably is consistent with those cases explaining that the injured party stands in the same position as the insured as of the time of the accident or injury at issue. See, e.g., State Farm Mut. Auto. Ins. Co. v. McClendon, 269 Ala. 456, 458-59, 114 So.2d 153, 155 (1959) (decided under the predecessor to Alabama’s direct-action statute, § 27-23-2, Ala.Code 1975, and explaining that the injured party’s rights under the tortfeasor’s insurance policy are derivative and that the injured party ‘stands in the same position the insured would occupy if he had paid the judgment’ and sued the insurer himself); Fleming v. Pan American Fire & Cas. Co., 495 F.2d 535, 541 (5th Cir.1974) (decided under the predecessor to § 27-23-2 and holding that ‘the right of the judgment creditor relates back to the time when his right of action arose’); compare George v. Employers’ Liability Assurance Corp., 219 Ala. 307, 310, 122 So. 175, 177 (1929) (decided under predecessor to § 27-23-2 and holding that an injured party has a vested interest ‘in the nature of an hypothecation of the amount,’ if any, due by an insurer to an insured, so that the provisions of an insurance policy imposing an obligation to testify and otherwise cooperate in the defense of the lawsuit were effective against the injured party).”

Alfa Ins. Co. v. Templeton, 919 So.2d 300, 305 n. 3 (Ala.Civ.App.2005).

In Nationwide Mutual Fire Insurance Co. v. Estate of Files, 10 So.3d 533 (Ala.2008), we addressed the timeliness of notice when the insured had not given notice to the insurer. The injured party was involved in an altercation with the insured on May 1, 2001. The insured had a homeowner’s policy that included personal-liability coverage. The insurer was notified of the altercation on October 1, 2001, when it was contacted by the injured party’s attorney. Subsequently, the insurer sought to secure the insured’s cooperation, but it was unable to obtain any information from him. On March 29, 2002, the insurer advised the insured that it would not defend or indemnify him, in part because he had failed to give it notice of the underlying occurrence “as soon as practicable” as required under the policy. The injured party sued the insured, but the insured never answered or appeared. On February 20, 2004, the trial court entered a default judgment against the insured. When the injured party sought to garnish the insured’s wages, the insured filed for bankruptcy protection. The bankruptcy court allowed the injured party to seek to collect the judgment against the insured only to the extent of any available insurance proceeds. Subsequently, the injured party sued the insurer, pursuant to § 27-23-2, seeking to apply the liability coverage in the insured’s homeowner’s policy to satisfy the judgment.

“It is undisputed that the [insurance] policy required [the insured] to notify [the insurer] of the altercation with [the injured party] ‘as soon as practicable.’ This Court addressed identical policy language in United States Fidelity & Guaranty Co. v. Baldwin County Home Builders Ass’n, Inc., 770 So.2d 72, 75 (Ala.2000):
“‘If an “occurrence” takes place, .,. the policy requires that the insured give USF & G notice “as soon as practicable.” This Court has held:
“ ‘ “The requirement of notice ‘as soon as practicable’ means that the insured must give notice ‘within a reasonable time under all the circumstances.’ See American Liberty Insurance Co. v. Soules, 288 Ala. 163, 258 So.2d 872 (1972). In making this determination, the only factors to be considered are the length of the delay in giving notice and the reasons therefor. Absence of prejudice to the insurer from the delay is not a factor to be considered. Southern Guaranty Insurance Co. v. Thomas, 334 So.2d 879 (Ala.1976).”
‘[United States Fidelity & Guar. Co. v.] Bonitz Insulation Co., 424 So.2d [569,] 572 [(Ala.1982)]. In Thomas, cited by this Court in Bonitz Insulation, this Court stated:
“ ‘ “Where facts are disputed or where conflicting inferences may reasonably be drawn from the evidence, the question of the reasonableness of a delay in giving notice is a question ... for the [trier of fact]. Provident Life & Accident Ins. Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934). Conflicting inferences concerning the reasonableness of a delay may sometimes be drawn where the insured offers evidence of mitigating circumstances.
“ ‘ “ ‘However, where an insured fails to show a reasonable excuse or the existence of circumstances which would justify a protracted delay, the Court should as a matter of law hold that there has been a breach of the condition as to notice. ...’
“'“Zurich General Accident & Liability Insurance Co. v. Harbil Restaurant, Inc., 7 A.D.2d 433, 435, 184 N.Y.S.2d 51, 53 (1959).”
‘“Thomas, 334 So.2d 879, 882-83. Thus, the determination of the fundamental issue, whether notice of the occurrence or claim was given to the insurer within a reasonable time, rests on the reasonableness of the delay.... If conflicting inferences can be drawn from the evidence, the question of reasonableness is submitted to the trier of fact. If the facts are undisputed, however, and the insured does not show justification for the protracted delay, the court may find the delay unreasonable as a matter of law. Thomas, 334 So.2d at 883; Bonitz Insulation, 424 So.2d at 572-73.’
“The facts of this case are somewhat unusual, because it is undisputed that [the insured] has never notified [the insurer] of his altercation with [the injured party]. Thus, it could be argued that his failure to give notice is a continuing violation of the notice condition of his policy. However, as previously stated, [the insurer] learned of the incident five months after it occurred. A few days later, [the insurer] sent a letter to [the insured] advising him that it had been contacted by [the injured party’s] attorney. For the purposes of our review, we will assume, without deciding, that [the insurer’s] actual notice of the occurrence excused [the insured] from any continuing duty to provide the notice required of him by the policy.
“A five-month delay in giving notice is sufficiently protracted as to require the insured to offer evidence of a reasonable excuse for the delay. See Phoenix Assurance Co. v. Harry Harless Co., 303 F.Supp. 867 (N.D.Ala.), aff'd, 414 F.2d 794 (5th Cir.1969) (four-month delay); Pharr v. Continental Cas. Co., 429 So.2d 1018 (Ala.1983) (eight-month delay); Southern Guar. Ins. Co. v. Thomas, 334 So.2d 879 (Ala.1976) (six-month delay). [The insured] did not testify at trial; thus, there is no evidence of any excuse or justification for his failure to provide the requisite notice as soon as practicable. In his brief, [the injured party] makes no attempt to justify [the insured’s] failure.”

10 So.3d at 535-36. The Court held that the insured had failed to comply with the notice requirement of his insurance policy and reversed the trial court’s judgment for the injured party and rendered a judgment for the insurer.

Miller (like the injured party in Files) does not offer any reasons for Smith’s delay in notifying Travelers of Miller’s claims against it. Instead, Miller argues that his notice to Travelers was reasonable under Haston v. Transamerica Insurance Services, supra.

In Haston, the Hastons (the injured parties) sued Smith Brothers, Inc. (the insured), in October 1989, and Smith Brothers did not answer the complaint. In September 1990, a default judgment was entered against Smith Brothers. After obtaining the default judgment, the Ha-stons filed a direct action in October 1992 against an agent of Transamerica and later added Transamerica as Smith Brothers’ insurance provider under § 27-23-1. Transamerica moved for summary judgment, which the trial court granted.

On appeal, this Court noted that pursuant to a claim asserted under §§ 27-23-1 and -2, Ala.Code 1975, seeking to apply the proceeds of an insurance contract to satisfy a judgment, the injured party acquires a vested interest (secondary) in the nature of a hypothecation of the insured’s rights under the policy and that once the injured party has recovered a judgment the injured party may compel the insurer to pay the judgment. However, the injured party can bring an action only after he or she has recovered a judgment and only if the insured was covered under the terms of the policy. The Court also noted that the injured party’s vested interest was subject to the terms of the policy imposing obligations on the insured, and, therefore, defenses to liability available to the insurer in an action brought by the insured would also be available to the insurer in an action brought by an injured party under §§ 27-2B-1 and -2.

The Haston Court went on to explain:

“Transamerica argues that notice of the claim brought by the Hastons against Smith Brothers is an unmet precondition for any insurance proceeds to be reached in this case. Resolution of the notice issue, however, must begin with the question of the sufficiency of the Hastons’ service of the summons and the complaint on Smith Brothers. While there may be an issue of fact as to whether service was properly effected, the resolution of that issue is not material to our holding, because we conclude below that the controlling issue here may be resolved as a matter of law. On appeal, the Hastons argue positions that seem fatally inconsistent: On one hand, the Hastons point out that the validity of the default judgment is not at issue, thereby implying that it is valid and that there was proper service; on the other, the Hastons argue that the lack of notice from Smith Brothers to Transamerica is excused because Smith Brothers was unaware of the Hastons’ action, thereby implying that the default judgment might have been invalid because of improper service. There are two possible legal theories upon which the Hastons may reach the proceeds of the Smith Brothers-Transamerica insurance policy in this case. The first assumes that service on Smith Brothers was valid, and the second that it was invalid.
“First, if service on Smith Brothers was proper and, for whatever reason, including an expectation of imminent insolvency, Smith Brothers neither defended the Hastons’ action nor notified Transamerica of the action, the default judgment would be proper, but the issue would arise as to whether, given the mandate and spirit of §§ 27-23-1 and -2, the plaintiff should be left without a remedy because the insured, insolvent and arguably indifferent, failed to give the insurer notice of the action. That issue would not need to be resolved here, though, because upon receiving a default judgment, the Hastons would acquire a hypothecated interest in any applicable insurance proceeds, and it would be incumbent upon them at that point to provide prompt notice to Transamerica of the default judgment and of their claim to the proceeds. From the insurance company’s perspective, such notice would allow it to challenge the default on any applicable ground and to defend an action, if necessary, while the events and the memories of potential witnesses were as fresh as possible. Thus, this theory turns on the reasonableness of notice provided by the Hastons to Transamerica of their claim to insurance proceeds arising under the Smith Brothers policy.
“Second, if service on Smith Brothers was improper, then the default judgment was also improper and Smith Brothers would be excused from failing to notify Transamerica of the Hastons’ action. The Hastons might also be able to argue this excuse as a means to assert a claim to the insurance proceeds, but again the timeliness of the Hastons’ notice to Transamerica of their claim would be critical. Prompt notice would allow Transamerica to move to have the default judgment set aside on grounds of improper service and to proceed to a trial, if necessary, while the events and the memories of the potential witnesses were as fresh as possible. Thus, this theory also turns on the reasonableness of notice provided by the Hastens to Transamerica of their claim to insurance proceeds arising under the Smith Brothers policy.
“We find that the term ‘prompt’ notice, as used in the contract of insurance between Transamerica and Smith Brothers, is synonymous with notice terms such as ‘immediately’ and ‘as soon as practicable,’ which have been held to mean that ‘notice must be given within a reasonable time in view of the facts and circumstances of the case.’ Pharr v. Continental Casualty Co., 429 So.2d 1018, 1019 (Ala.1983). ‘[Ujnder Alabama law there are only two factors to be considered in determining the reasonableness of a delay in giving notice to an insurer: the length of the delay and the reasons for the delay.’ Southern Guar. Ins. Co. v. Thomas, 334 So.2d 879, 883 (Ala.1976). If there are disputed facts or conflicting inferences that may reasonably be drawn from the evidence, ‘the question of the reasonableness of a delay in giving notice is a question of fact for the jury.’ Id. at 882. But if there is no reasonable excuse offered for a delay in giving notice, the issue may be decided as a matter of law. Id. at 882-83. Here, it is the injured party, by way of a judgment against the insured, that claims a hypothecated interest in proceeds from a policy instead of the insured claiming coverage benefits against the insurer. Under the circumstances of this case, however, we do not find the distinction meaningful, and we hold that these propositions apply to the Hastens.
“The length of the delay between the Hastens’ default judgment and their motion to reach and apply insurance proceeds was over two years. The Hastons have offered no excuse for the delay, reasonable or otherwise. Therefore, we must conclude that the delay was unreasonable as a matter of law. See Pharr, supra (holding that an eight-month delay without excuse was unreasonable as a matter of law); Southern Guaranty, supra (holding that a six-month delay without a showing of a reasonable excuse was unreasonable as a matter of law); Correll v. Fireman’s Fund Ins. Cos., 529 So.2d 1006, 1009 (Ala.1988) (affirming the trial court’s judgment where there was a one-year delay and ‘insufficient reasons for that delay1).”

662 So.2d at 1140-41 (footnote omitted). The Court in Haston affirmed the trial court’s judgment. In Haston, the Court recognized that the policy between Trans-america and Smith Brothers required prompt notice of any occurrence under the policy. The Court went on to address the Hastens’ alternative arguments regarding whether Smith Brothers was properly served. The Court recognized that, if Smith Brothers were properly served and did not appear, the plaintiff/injured party could be left without a remedy because the insured, insolvent and arguably indifferent, failed to give the insurer notice of the action. However, the Court did not resolve that issue because it concluded that, upon receiving a default judgment, the Ha-stons, as the injured parties, would acquire a hypothecated interest in any applicable insurance proceeds, and it would be incumbent upon them at that point to provide prompt notice to Transamerica of the default judgment and of their claim to the proceeds. In short, what the Haston Court did was to conclude that the injured party’s duty to protect his hypothecated interest by seeing that timely notice of the lawsuit is given to the insured’s insurer was independent of the contractual duties of the insured in providing notice, in that notice from the injured party after a default judgment was entered, if timely, would satisfy the notice requirement. The Haston Court went on to address the Hastens’ alternative argument that Smith Brothers was not properly served and, therefore, that Smith Brothers would have an excuse for not timely notifying Trans-america of the Hastens’ action. The Court recognized that the Hastens could argue Smith Brothers’ improper service as an excuse to assert their claim against the insurance proceeds. However, the Court went on to hold that the timeliness of the Hastons’ notice to Transamerica would be critical because timely notice would allow Transamerica to move to set aside the default judgment. The Court again recognized that the policy between Trans-america and Smith Brothers required prompt notice and that under Alabama law there are only two factors to be considered in determining the reasonableness of a delay in giving notice: the length of the delay and the reasons for the delay. The Court went on to apply those two factors to the Hastons’ delay in notifying Trans-america of their default judgment. With regard to the factors determining delay, the Court expressly found no meaningful distinction between an injured party’s claiming, by way of a judgment against the insured, a hypothecated interest in proceeds from a policy and an insured’s claiming coverage benefits against the insurer, but it found that the injured party’s delay was at issue in that case. Ultimately, the Court concluded that the length of delay between the Hastons’ default judgment and their attempt to reach and to apply the insurance proceeds was over two years and that that delay was unacceptable.

It is clear that there is a conflict between Files and Haston. We note that Haston has been cited only for general propositions of law and has never been relied by upon by state courts for the proposition that an injured party’s duty to protect his hypothecated interest by seeing that timely notice of the lawsuit is given to an insured’s insurer was independent of the contractual duties of the insured. Although we have not been asked to overrule Haston and it is this Court’s practice not to address issues not presented on appeal, Haston is an aberration; none of this Court’s decisions subsequent to Haston have relied on it to provide an injured party an independent right to provide notice to an insurer after a default judgment is entered against the insurer’s insured. Accordingly, we overrule Haston to the extent that it purports to give a right to an injured party who gives notice after a default judgment has been entered, a right the insured would not have had nor have been successful in pursuing.

Both the CGL policy and the automobile policy had provisions for giving Travelers timely notice of an occurrence and timely notice of any legal action filed based on the occurrence. The purposes behind these two types of notice is well settled: An insurer must have timely notice of an event or occurrence in order to form an intelligent estimate of its rights and liabilities under the policy, to afford it an opportunity to investigate, to allow it to participate in the litigation, and to prevent fraud. Pan American Fire & Cas. Co. v. DeKalb-Cherokee Counties Gas Dist., 289 Ala. 206, 266 So.2d 763 (1972). The purpose of a notice-of-lawsuit provision in an insurance policy is to give the insurer the opportunity to control litigation on which its contractual liability hinges. North River Ins. Co. v. Overton, 59 So.3d 1 (Ala.2010).

In the present case, Smith did not provide Travelers with notice of the occurrence nor did Smith forward copies of the complaint filed against it by Miller to Travelers. Miller did not offer any excuses for Smith’s delay in notifying — actually its failure to notify — Travelers. Miller’s notice to Travelers after the default judgment was entered was untimely. We note that it appears that Miller’s counsel knew of Smith’s certificate of insurance, which Smith was required to have, as early as when counsel served Smith. However, Travelers was not notified of the action until after a default judgment had been entered. Travelers never had the opportunity to control the litigation because a judgment had been entered before Travelers had knowledge of the lawsuit. Under our decision in Files, Miller is barred from recovering under the policies. Accordingly, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion. We pretermit discussion of the remaining arguments made by Travelers.

REVERSED AND REMANDED.

WOODALL, STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

      . Miller died on October 19, 2010. While this appeal was pending, the personal representative of Miller’s estate filed in the trial court a motion for substitution of plaintiff; he later filed a motion to substitute with this Court. His personal representative is substituted as the plaintiff pursuant to Rule 43, Ala. R.App. P.

      . The testimony conflicted as to the dates Smith attempted to move Miller’s house.

      . The judgment awarded accrued post-judgment interest at the rate of 12% per an-num. See Ala.Code 1975, § 8-8-10.

      . Smith filed for bankruptcy protection on July 12, 2006.

      . "Ordinarily, any issue as to the denial of [a] summary judgment motion would be moot, because the sufficiency of the evidence at trial would be the significant question on appeal.” Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994). In Superskate, this Court stated that such a review would occur only in a rare case. Furthermore, Travelers does not cite Superskate, nor does it argue that this case would be such a rare case.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte John Aldridge LIMERICK. (In re: Pamela Washington and Robert Washington, Jr. v. John Aldridge Limerick et al.).
    1101201.
    Supreme Court of Alabama.
    Dec. 9, 2011.

      Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for petitioner.
    Clark Hall, Gadsden, for respondents.
   WOODALL, Justice.

For the second time, we are called upon to address the validity of an order of the Etowah Circuit Court granting a new trial on the motion of Pamela Washington and her husband, Robert Washington, Jr. (“the Washingtons”). See Ex parte Limerick, 66 So.3d 755 (Ala.2011), which sets out the factual and procedural history of this action. In Limerick, we issued, on the petition of John Aldridge Limerick, a writ of mandamus directing the trial court to vacate its order granting the Washingtons’ motion for a new trial, which they filed pursuant to Rule 59, Ala. R. Civ. P. We issued the writ on the ground that the trial court’s order purporting to grant the Washingtons’ postjudgment motion was entered after “the 90-day period referred to in Rule 59.1[, Ala. R. Civ. P., had] expired,” thus depriving the trial court of jurisdiction in the case. 66 So.3d at 757. The basis of the Washingtons’ post-judgment motion was alleged juror misconduct. Specifically, they averred that the foreperson in the trial of their action had failed to respond honestly and accurately to questions asked on voir dire, thereby concealing the fact that she knew the Washingtons.

On October 26, 2010, while this Court was considering the validity of the trial court’s new-trial order in Limerick, the Washingtons filed in the trial court a motion for relief from judgment, pursuant to Rule 60(b), Ala. R. Civ. P., on the ground of “jury misconduct,” incorporating “the facts as asserted in prior motions and oral arguments.” On January 7, 2011, upon release of our opinion in Limerick, the trial court entered an order vacating its order granting a new trial in accordance with our instructions but simultaneously setting the Washingtons’ pending Rule 60(b) motion for a hearing. Approximately six months later, on July 1, 2011, the trial court once again ordered a new trial, purportedly based this time on Rule 60(b). Subsequently, Limerick petitioned this Court for a writ of mandamus directing the trial court to vacate its second new-trial order. Once again, we grant the petition and issue the writ.

It is abundantly clear that “[a] Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1.” Ex parte Johnson, 715 So.2d 783, 785-86 (Ala.1998) (emphasis added). In that respect, “ ‘a Rule 60(b) motion “is not a substitute for appeal and is not available to relieve a party from his failure to exercise the right of appeal.” ’ ” Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 442 (Ala.2009) (quoting Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1245 (Ala.Civ.App.2004), quoting in turn Morgan v. Estate of Morgan, 688 So.2d 862, 864 (Ala.Civ.App.1997)). Thus,

‘Rule 60(b) ... 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 knoum by the moving party at the time of his original [postjudgment] motion.” ’ ”

Ex parte Haynes, 58 So.3d 761, 765 (Ala.2010) (quoting McIntyre v. Satch Realty, Inc., 961 So.2d 135, 138-39 (Ala.Civ.App.2006), quoting in turn Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985)).

In this case, the Washingtons’ Rule 59 motion alleged juror misconduct. That motion was denied by operation of law when the trial court failed to act on it within the time prescribed by Rule 59.1. The Washingtons failed to appeal from the automatic denial of that motion. Instead, they filed a Rule 60(b) motion, which they concede “seek[s] the same relief as set out in [their] Rule 59 motion.” Washingtons’ brief, at 2 (emphasis added). Their Rule 60(b) motion sought, therefore, nothing more than a “reconsideration” of the matters already deemed denied by the trial court in their previous postjudgment motion and was an improper use of Rule 60(b) as a substitute for appeal.

Under these facts, relief under Rule 60(b) was unauthorized and improper. The trial court is directed to vacate its July 1, 2011, order granting the Washing-tons’ motion for a new trial.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and BOLIN, MURDOCK, and MAIN, JJ., concur.

      . The trial court's untimely order purporting to grant the Rule 59 motion was a nullity. Limerick, 66 So.3d at 757.


author: WOODALL, Justice. MURDOCK, Justice

text:
    Ex parte State of Alabama. (In re Ex parte Jeremy B. JONES. (In re State of Alabama v. Jeremy B. Jones)).
    1101129.
    Supreme Court of Alabama.
    Dec. 9, 2011.

      Luther Strange, atty. gen., John C. Nei-man, Jr., deputy atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for petitioner.
    Peyton Faulk of Bush & Faulk, PLLC, Montgomery, for respondent Jeremy B. Jones.
    Samuel Henry Welch, presiding judge, and J. Elizabeth Kellum, Liles C. Burke, and J. Michael Joiner, judges, Alabama Court of Criminal Appeals, filed a response to petition; Mary Becker Windom, judge, Alabama Court of Criminal Appeals, filed a separate response.
   WOODALL, Justice.

The State of Alabama petitions this Court for a writ of mandamus directing the Court of Criminal Appeals to vacate its order granting a mandamus petition filed by Jeremy B. Jones and directing Mobile Circuit Judge Charles A. Graddick to re-cuse himself from presiding over Jones’s postconviction proceedings. We grant the petition and issue the writ.

I. Factual and Procedural Background

In October 2005, Judge Graddick presided over a trial in which Jones was convicted on four counts of capital murder and was sentenced to death. The jury was sequestered throughout the trial, which lasted several days. After his conviction and sentence were affirmed on appeal, Jones v. State, 43 So.3d 1258 (Ala.Crim.App.2007), Jones filed a petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim. P.

In his Rule 32 petition, Jones alleged, in pertinent part, that T.E., who served as a juror at his trial, was unfit to serve on the jury on account of alcohol dependence and that T.E. had failed to answer truthfully certain questions on voir dire regarding his alcohol dependence. According to Jones, posttrial interviews revealed (1) that T.E. had told Judge Graddick during Jones’s trial that he was an alcoholic, (2) that T.E. had received permission from Judge Graddick to drink alcohol during sequestration, and (3) that Judge Graddick did not inform Jones’s counsel that T.E. had requested such permission and that Judge Graddick had granted it. Jones’s petition alleged juror misconduct, as well as juror incompetence.

In conjunction with his Rule 32 petition, Jones filed a “motion to recuse Judge Graddick from presiding over his Rule 32 proceeding,” asserting as grounds Ala. Code 1975, § 12-1-12 (“No judge shall sit in any ... proceeding in which he is interested .... ”), and Canon 3.C(l)(d)(iii), Alabama Canons of Judicial Ethics (“A judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned, including but not limited to instances where ... [h]e ... [i]s ... likely to be a material witness in the proceeding.”). Jones alleged in his motion that Judge Graddick would “likely be a witness” in the Rule 32 proceedings and that “any reasonable person would doubt [his] ability to remain impartial.” (Emphasis added.) Judge Graddick denied the motion.

Jones then petitioned the Court of Criminal Appeals for a writ of mandamus “to compel ... Judge Graddick’s recusal, and to assign another Circuit Court judge to address the claims contained in [the] Rule 32 petition.” In an order, a majority of that court granted Jones’s mandamus petition and directed Judge Graddick to recuse himself. Ex parte Jones (No. CR-10-0938, June 15, 2011), — So.3d -(Ala.Crim.App.2011) (table). The State then filed this mandamus petition. See Rule 21(e)(1), Ala. R.App. P.

II. Discussion

“The issue of recusal may properly be raised in a petition for a writ of mandamus.” Ex parte Bank of America, N.A., 39 So.3d 113, 117 (Ala.2009). “A trial judge’s ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion.” Ex parte George, 962 So.2d 789, 791 (Ala.2006). “ ‘The burden of proof is on the party seeking recusal.’ ” Ex parte City of Dothan Pers. Bd., 831 So.2d 1, 9 (Ala.2002) (quoting Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994)). “The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’ ” Ex parte Bryant, 682 So.2d 39, 41 (Ala.1996) (quoting Ex parte Cotton, 638 So.2d at 872).

The State contends that “no person could reasonably question Judge Grad-dick’s impartiality because he would ... not be a material witness in this case.” Petition, at 19 (emphasis added). We agree.

“In construing a Florida statute providing for the disqualification of a trial judge based on, among other grounds, the fact that the judge is a material witness, the Florida Supreme Court held that a ‘material witness’ is ‘a witness who gives testimony going to some fact affecting the merits of the cause and about which no other witness might testify.’ Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934) (emphasis added). From Wingate, it follows that where the trial judge is not a material witness under this definition, there is no error in the trial court’s failure to re-cuse. Courts in other jurisdictions have adopted this view. Bresnahan v. Luby, 160 Colo. 455, 418 P.2d 171, 173 (1966) (‘Where the evidence concerning the transactions in issue may be obtained from witnesses other than the trial judge, then the trial judge is not such a material witness as to require a disqualification.’) (citing Wingate v. Mach, supra); Brown v. Bahl, 111 Pa.Super. 598, 170 A. 346, 348 (1934) (‘[W]here other witnesses were available [to testify] as to the facts that [the trial judge] observed, there is no ethical or legal reason to disqualify [the judge] simply because of his knowledge.’). See also Mosley v. State, 145 Ga.App. 651, 244 S.E.2d 610 (1978) (where trial judge transported juror to hospital, the juror was available to testify as to the incident and the trial judge was not a necessary witness); State v. O’Neal, 501 So.2d 920 (La.App.), cert. denied, 505 So.2d 1139 (La.1987) (where trial judge received a letter from a co-defendant which the co-defendant, while testifying as a defense witness, admitted writing, the trial judge did not become a material witness). Cf. Coleman v. State, 194 Mont. 428, 633 P.2d 624 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (where the defendant in a post-conviction proceeding failed to demonstrate that the trial judge was the source of evidence otherwise unobtainable, the judge was not required to re-cuse himself).”

Callahan v. State, 557 So.2d 1292, 1307-08 (Ala.Crim.App.), aff'd, 557 So.2d 1311 (Ala.1989).

It is abundantly clear that Judge Grad-dick is not privy to any facts that are material to Jones’s Rule 32 petition or proceedings and that are not readily ascertainable from other sources. Specifically, the best source of information regarding T.E.’s qualifications as a juror and his conduct is T.E. himself. Indeed, we note that the State has filed in this mandamus proceeding an original affidavit from T.E. recounting his version of events that transpired at trial. We have not considered the substance of this affidavit because it was not before the Court of Criminal Appeals when it ruled on Jones’s mandamus petition. We mention it only to illustrate T.E.’s manifest availability as a witness.

Jones, however, states:

“Judge Graddick is the only person who can explain why he did not alert Mr. Jones and/or trial counsel regarding the ex parte communications and why those communications were never placed in the record. In addition, Judge Grad-dick is the only person who can explain how he interpreted Juror T.E.’s request to consume alcohol. Was Juror T.E. adamant about being able to drink? If so, did Judge Graddick consider that Juror T.E. may have a problem with alcohol? Certainly, if Judge Graddick thought that Juror T.E. may actually have a problem with alcohol, then he should have brought that fact to Mr. Jones and his counsel’s attention. Even if he did not believe Juror T.E. had a problem with alcohol, then he also should have alerted counsel of his intent to allow the jurors to consume alcoholic beverages after court adjourned each day. Contrary to the State’s position, these are evidentiary disputes to which Judge Graddick, and only Judge Grad-dick, can attest.”

Jones’s brief, at 23 (emphasis added).

It must be remembered that it is the conduct and competency of T.E., not of Judge Graddick, that is the actual subject of the claims in Jones’s Rule 32 petition. Thus, contrary to Jones’s position, Judge Graddick’s state of mind has no bearing on any issue in the Rule 32 petition. There is no allegation that Judge Graddick knows anything about T.E. other than what T.E. himself allegedly told him. Consequently, because Jones has “failed to demonstrate that the trial judge was the source of evidence otherwise unobtainable, the judge was not required to recuse himself.” Callahan, 557 So.2d at 1308.

III. Conclusion

Because Judge Graddick will not be a material witness in Jones’s Rule 32 proceedings, no “reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’ ” Ex parte Bryant, 682 So.2d at 41. Thus, Judge Graddick did not exceed his discretion in denying Jones’s motion for his recusal, and the Court of Criminal Appeals erred in holding that he did.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs in the result.

MALONE, C.J., and WISE, J., recuse themselves.

MURDOCK, Justice

(concurring in the result).

I am not persuaded that a person with knowledge of material facts, whether or not that person is a judge, who would otherwise be a material witness necessarily is not a material witness merely because there is another prospective witness with knowledge of the same facts. In this case, however, Judge Graddick participated in the events at issue in his role as the judge presiding over the underlying criminal trial and as such can take judicial notice of his observations, actions, and decisions. Indeed, as is not infrequently the case, it is the actions and decisions of the trial judge in the underlying criminal case that are being questioned in this Rule 32 proceeding. I therefore decline, albeit for a reason different than that set out in the main opinion, to consider Judge Graddick a “material witness” so as to necessitate his recusal in the current proceeding. Accordingly, I concur in the result reached by the main opinion.


author: STUART, Justice.

text:
    Ex parte Randy FIELDING. (In re Debra Jackson and Jerry Jackson v. City of Cordova et al.).
    1101327.
    Supreme Court of Alabama.
    Dec. 9, 2011.

      Kendrick E. Webb and Jamie K. Hill of Webb & Eley, P.C., Montgomery, for petitioner.
    Robert M. Pears, Hoover, for respondent.
   STUART, Justice.

Randy Fielding petitions this Court for a writ of mandamus directing the Walker Circuit Court to vacate its order denying his motion for a summary judgment and to enter a summary judgment based on his claim to State immunity. We grant the petition and issue the writ.

Facts and Procedural History

In November 2004, Debra Jackson and Jerry Jackson sued Fielding, individually and in his capacity as a deputy sheriff, after Fielding, while he was on duty, entered their property and shot their dog. The complaint alleged claims of negligence, wantonness, the tort of outrage, intentional infliction of emotional distress, trespass to person, and trespass on property. The Jacksons sought “compensatory, actual, incidental, and punitive damages, plus attorney fees.” Fielding moved for a summary judgment, arguing that because he was acting within the line and scope of his employment as a sheriffs deputy at the time of the incident, he was entitled to State immunity from the Jack-sons’ suit.

In his affidavit submitted in support of his summary-judgment motion, Fielding stated that he is a deputy for the Walker County Sheriffs Department. He explained that he and his wife were neighbors of the Jacksons and that their residences were located across the street from an elementary school. He stated that the incident that is the basis of the complaint occurred early one weekday morning before children had started arriving for school. He explained that he was on duty with the sheriffs department and that he received a telephone call informing him that his wife and their dog had been attacked in front of the Jacksons’ house by a large dog, described as a pit bull/rottweiler mix. Fielding stated that he drove to his residence to check on his wife and their dog and that he then assisted a City of Cordova police officer in locating and restraining the dog that had attacked his wife and dog. Fielding explained that he and the City of Cordova police officer found in the Jacksons’ yard an unrestrained, agitated dog matching his wife’s description of the dog that had attacked her and their dog. According to Fielding, when he and the police officer entered the Jacksons’ yard to approach the house to speak with the Jacksons about the unrestrained dog, “[t]he dog galloped toward us in a menacing manner, growling and showing his teeth.” Fielding stated that the dog leapt at his neck and he shot at the dog and that he had to fire three shots before the dog ceased the attack. Fielding explained:

“The dog that was shot was loose of any restraint, free to leave its own yard, and acting viciously when I approached the [Jacksons’] house. Because of the time of day, schoolchildren would soon be arriving at the school and get off buses directly across from the [Jack-sons’] house. The school is located directly across the street from and within approximately thirty feet of the [Jack-sons’] residence. In my capacity as Deputy Sheriff, I considered the [Jack-sons’] dog to pose a danger to any pedestrians that might pass near the [Jacksons’] house, including children arriving for school.
“Before, during, and after this encounter with the dog, I was acting in my professional capacity as a law enforcement officer, sworn to protect the public and fired upon the dog only in self-defense and in defense of any other pedestrians who might enter the area, particularly the elementary school children that would soon arrive by bus across the street from the Jacksons’ home.”

Fielding also submitted an excerpt from Debra Jackson’s deposition testimony in which she stated that at the time of the incident Fielding was wearing his deputy sheriffs uniform and that a Walker County Sheriffs Department vehicle was parked in front of the Jacksons’ house.

The Jacksons opposed Fielding’s summary-judgment motion, arguing that Fielding was not entitled to State immunity because, they said, he was not acting in his official capacity as a deputy sheriff when he entered their property and shot their dog. Specifically, they argued that because the incident occurred within the police jurisdiction of the City of Cordova and, consequently, within the jurisdiction of the City of Cordova police department, Fielding, who was not an employee of the City of Cordova police department but who was rather an employee of Walker County Sheriffs Department, was acting outside the line and scope of his employment. In support of their argument, the Jacksons submitted their deposition testimony, which established that the incident occurred within the police jurisdiction of the City of Cordova. They further argued that, even if Fielding was acting within the line and scope of his employment as a deputy sheriff at the time of the incident, Fielding was not entitled to State immunity because his actions were willful and malicious. In support of this argument, the Jacksons submitted the deposition of Jerry Jackson in which he stated that he had witnessed Fielding beat the dog with his baton and use excessive force to restrain the wounded dog.

The trial court denied Fielding’s motion. Fielding petitions this Court for a writ of mandamus directing the trial court to vacate its order denying his motion for a summary judgment and to enter a summary judgment for him based on the doctrine of State immunity.

Standard, of Review

“ ‘This Court has stated:
“ ‘ “ ‘While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Pur-vis, 689 So.2d 794 (Ala.1996)....
'Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: “ ‘(1) a clear legal 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 adequate remedy; and (4) the properly invoked jurisdiction of the court.’” Ex parte Nall, 879 So.2d 541, 548 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)).'
“Ex parte Yancey, 8 So.3d 299, 303-04 (Ala.2008).”

Ex parte Jones, 52 So.3d 475, 478-79 (Ala.2010).

“In reviewing a trial court’s ruling on a motion for a summary judgment, we apply the same standard the trial court applied initially in granting or denying the motion. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999).
“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact.’
742 So.2d at 184. ‘[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).”

Swan v. City of Hueytown, 920 So.2d 1075, 1077-78 (Ala.2005).

Discussion

Our caselaw is clear that sheriffs and their deputies enjoy State immunity under § 14 of the Alabama Constitution of 1901.

“ ‘Generally, sheriffs enjoy State immunity under § 14 from actions against them in their individual capacities for acts they performed in the line and scope of their employment. [Ex parte] Davis, 930 So.2d [497,] 500-01 [(Ala.2005)] (noting in an action against a deputy sheriff that “a claim for monetary damages made against a constitutional officer in the officer’s individual capacity is barred by State immunity whenever the acts that are the basis of the alleged liability were performed within the course and scope of the officer’s employment”); see also [Ex parte] Hale, 6 So.3d [452,] 457 [(Ala.2008)] (holding that acts by a sheriff, which gave rise to the plaintiffs claim against him, were taken “in the execution of his duties as sheriff,” and, thus, the sheriff was immune under § 14 from an action seeking damages against him in his individual capacity). This immunity is not unlimited and, in certain instances, § 14 does not protect sheriffs from an action against them in their individual capacity.’
“Suttles v. Roy, 75 So.3d 90, 94 (Ala.2010).
“As to deputy sheriffs, this court has held that
“ ‘deputy sheriffs are immune from suit to the same extent as sheriffs. “In general, the acts of the deputy sheriff are the acts of the sheriff. The deputy sheriff is the alter ego of the sheriff.” Carr v. City of Florence, Alabama, 916 F.2d 1521, 1526 (11th Cir.1990), quoted with approval in Drain v. Odom, 631 So.2d 971, 972 (Ala.1994), and Wright v. Bailey, 611 So.2d 300, 308 (Ala.1992). “[Under Alabama law, a] deputy is legally an extension of the sheriff. If the deputy’s acts are generally considered the acts of the sheriff, it is logical that those acts should enjoy the same immunity covering the sheriffs own acts.” Carr, at 1526, quoted with approval in Wright v. Bailey, at 303.’
“Alexander v. Hatfield, 652 So.2d 1142, 1144 (Ala.1994).”

Ex parte Donaldson, 80 So.3d 895, 897-98 (Ala.2011) (footnote omitted).

Section 36-22-3, Ala.Code 1975, outlines the general duties of a sheriff and the sheriffs deputies. Section 36-22-3(4) provides: “It shall be the general duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals.... ” A sheriff and his or her deputies are law-enforcement officers authorized to preserve peace and public order. See generally 70 Am.Jur 2d Sheriffs, Police, and Constables § 30 (2005); 80 C.J.S. Sheriffs and Constables § 71 (2010) (“As a peace officer it is the duty of a sheriff or the sheriffs deputy to preserve the peace or act as a conservator of the peace within his or her county, using such force as may be necessary to preserve the peace.”).

Fielding contends that the trial court erred in denying his motion for a summary judgment because, he says, he is entitled to State immunity from tort liability. Specifically, he argues that, when he entered the Jacksons’ yard and shot their unrestrained dog, he was acting within the line and scope of his employment as a deputy sheriff to preserve the peace and to protect the public. Fielding made a prima facie showing that at the time of the incident he was acting within the line and scope of his employment as a sheriffs deputy. He submitted evidence indicating that he was on duty at the time of the incident and that he was working with a City of Cordova police officer to protect “any other pedestrians who might enter the area, particularly the elementary school children that would soon arrive by bus across the street from the Jacksons’ home.” Hence, Fielding made a prima facie showing that when he entered the Jacksons’ property and shot their dog he was acting within the line and scope of his employment as a deputy sheriff to protect the public and to preserve the peace.

The burden then shifted to the Jacksons to present substantial evidence creating a genuine issue of material fact as to whether Fielding was acting within the line and scope of his employment as a deputy sheriff at the time of the incident. In opposition, the Jacksons presented evidence indicating that the incident occurred within the municipal limits of the City of Cordova. According to the Jacksons, because Fielding was employed by the Walker County Sheriffs Department, his actions, which occurred within the City of Cordova’s police jurisdiction, were outside the line and scope of his employment. This evidence and argument, however, do not satisfy the Jacksons’ burden of creating a genuine issue of material fact. The Jacksons do not provide this Court with any legal authority to the effect that a sheriff and/or the sheriffs deputies, especially when acting in concert with the city police, do not have authority to protect the citizens and to preserve the peace in a city located in their county. “ ‘ “Where no legal authority is cited or argued, the effect is the same as if no argument had been made.” ’ ” Suttles v. Roy, 75 So.3d 90, 98 (Ala.2010) (quoting Steele v. Rosenfeld, LLC, 936 So.2d 488, 493 (Ala.2005), quoting in turn Bennett v. Bennett, 506 So.2d 1021, 1023 (Ala.Civ.App.1987)).

The Jacksons further argue that, even if their argument that Fielding is not entitled to State immunity because the incident took place in the police jurisdiction of the City of Cordova fails, Fielding is nonetheless not entitled to immunity because they presented substantial evidence showing that Fielding’s actions were willful, malicious, and exceeded the scope of his authority. Consequently, they say, a genuine issue of material fact exists as to whether Fielding is immune from tort liability. The Jacksons rely on Ex parte Cranman, 792 So.2d 392 (Ala.2000), which holds that a person, acting for the State, is not entitled to State-agent immunity when his or her actions are willful and malicious. The doctrine of State-agent immunity, however, is not applicable in this case. Fielding is employed as a deputy sheriff, and the issue is whether he is entitled to State immunity under § 14 of the Alabama Constitution of 1901, not State-agent immunity under Ex parte Cranman. See Ex parte Donaldson, 80 So.3d at 900 (stating that “whether a deputy sheriff would be entitled to State-agent immunity is immaterial to the question whether a deputy sheriff is entitled to State immunity”).

The Jacksons did not satisfy their burden of establishing that a genuine issue of material fact exists as to whether Fielding is entitled to State immunity. Viewing the evidence in light most favorable to the Jacksons, we conclude that the evidence presented in support of and in opposition to the summary-judgment motion establishes that no genuine issue of material fact exists and that Fielding is entitled to State immunity from the tort claims asserted against him in the Jacksons’ action.

Conclusion

Fielding has established a clear legal right to a writ of mandamus. Therefore, we grant this petition and issue a writ directing the Walker Circuit Court to vacate its order denying Fielding’s motion for a summary judgment and to enter a summary judgment for Fielding based on the doctrine of State immunity.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . The Jacksons also sued the City of Cordova and various fictitiously named defendants. The City of Cordova, however, is not a party to this mandamus proceeding.

      . The restated test for determining when a State employee is entitled to State-agent immunity set out in Ex parte Cranman, a plurality opinion, was adopted by this Court in Ex parte Butts, 775 So.2d 173 (Ala.2000).


author: PITTMAN, Judge.

text:
    VESTLAKE COMMUNITIES PROPERTY OWNERS' ASSOCIATION, INC., and Liberty Park Master Owners' Association v. Ronald T. MOON and Sarah P. Moon.
    2100327.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2011.

      William Anthony Davis III, Philip G. Piggott, and H. Thomas Wells III of Starnes Davis Florie, LLP, Birmingham, for appellants.
    Frank C. Galloway III and Walter F. Scott III of Galloway & Scott, LLC, Birmingham; and John D. Saxon, Birmingham, for appellees.
   PITTMAN, Judge.

Vestlake Communities Property Owners’ Association, Inc., and Liberty Park Master Owners’ Association (hereinafter collectively referred to as “the Association”); as well as the Liberty Park Architectural Review Committee (“the ARC”), appealed from an order of the Jefferson Circuit Court denying their request for permanent injunctive relief against homeowners Ronald T. Moon and Sarah P. Moon based on the Moons’ alleged violation of a restrictive covenant applicable to their property. The supreme court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We affirm.

Factual and Procedural Background

The Moons live in the Liberty Park development of Vestavia Hills. The legal description of the Moons’ property is “Lot 341 of Vestlake Village, 7th Sector, Phase 2, as recorded in Map Book 201, Page 38, in the Office of the Judge of Probate of Jefferson County, Alabama” (the document recorded in the Jefferson County Probate Office is hereinafter referred to as “the plat”). Lot 341 is located on a peninsula that juts into Lake Reynolds, a man-made body of water owned by Liberty Park Joint Venture (an entity that was not a party below). The Moons’ property is subject to the “Covenants, Conditions and Restrictions” of the Association. Among other things, the covenants authorize the ARC to approve all plans and specifications for improvements to any lot.

In January 2010, the Moons submitted to the ARC a proposed plan for a two-story addition to the east side of their house. The ARC approved the plan in March 2010 and notified the Moons that they would be required to submit a landscaping plan to accompany the construction plan. The Moons subsequently submitted a landscaping plan that, among other things, called for a series of stone walkways and six stone patios to be constructed along the lake. The ARC approved the landscaping plan in June 2010, with a notation stating that “additional stone work cannot project past existing] water’s edge” and providing that, “[i]f you go past water’s edge, you will be required to remove.”

Before beginning work on the lakeside patios, John Saunders, the Moons’ landscaping contractor, staked out the six areas where the patios would be located, marking the then-existing water’s edge. According to Saunders, the water level of the lake fluctuated 18 to 22 inches during the time he was building the walkways and patios for the Moons. Saunders said the lake level rose and fell daily, and the line at which the land area of Lot 341 met Lake Reynolds was “a moving target.” He acknowledged that, in some places, the stonework extended two or three feet past the staked line because “there was so much silt or whatnot that [had] washed off the shore ... [that] we had to be able to come in and make sure [the stonework] was going to have a good solid foundation to support it.”

On August 1, 2010, two members of the ARC visited the Moons’ property to investigate the progress of the construction and landscaping projects. Upon finding that some of the stone work patios “extended into the lake,” the ARC issued an immediate notice of violation to the Moons and a stop-work notice to the Moons’ construction and landscaping contractors. The notices required that the patio additions extending into the lake be removed immediately and that all construction personnel — including those who had been working only on the addition to the Moons’ house — leave the job site until the patio violations were remedied.

Sam Lowery, the chairman of the ARC, testified that the ARC considered the lake boundary line of Lot 341 to be the boundary as shown on the plat, which measures “269 +/- feet” based on a lake elevation of 586 feet. According to the testimony of Walter Schoel, a civil engineer who designed Lake Reynolds, the source for the lake boundary line on the plat is a contour line on an aerial topographic map reflecting an elevation of 586 feet above sea level. Schoel explained that the boundary of a lake is designated on a plat by a contour line, which, Schoel said, is an approximate dimension based on the lake’s normal pool and which cannot be surveyed because it is slightly variable over time.

Schoel testified that the topographic map that formed the basis for the contour line on the plat was not completely accurate because, he said, the “586 contour line” on that map reflects where the water line is supposed to be when the lake is at full pool, whereas the service spillway for the lake is actually set at 586.35 feet— meaning that, if the lake is full, the water is .35 foot (or approximately 4 inches) higher than the elevation reflected on the plat. Schoel acknowledged that, when lake levels rise or fall vertically by only a few inches, the horizontal effect of the change in water level — that is, the change in the place where the water meets a sloping embankment on land — can be much more dramatic, amounting to as much as a “five or six-foot” difference in the position of the water’s edge.

Thomas R. Holcomb, a landscape architect and a member of the ARC, testified that, by virtue of paragraph 2.E. of Amendment 6 to the covenants, homeowners are on notice that lake levels may rise or fall. That section states:

“Water Level Fluctuations. By acceptance of a lake lot deed, each owner of a lake lot acknowledges that the water level of the lake is subject to significant fluctuations and that portions of the lake lots may from time to time be flooded and that from time to time the level of the lake may be too low to accommodate recreational uses. Neither Developer, nor the Master Association, nor the Association shall have any responsibility whatsoever for maintaining the lake at any particular or certain water level.”

Holcomb acknowledged that the term “water’s edge” is somewhat imprecise because, he said, the water level of the lake varies a few tenths of an inch — a vertical variance that, Holcomb concluded, could result in a horizontal variance of one or two feet with respect to the point at which the water meets the land. For that reason, Holcomb explained, the ARC had routinely allowed homeowners a one- or two-foot “grace area” for construction of docks and piers past the apparent water’s edge.

On August 16, 2010, the Moons hired civil engineer and land surveyor Lawrence D. Weygand to conduct an “as-built” survey of Lot 341. The ARC reviewed Wey-gand’s survey and concluded that three of the six stone patios crossed the contour line on the plat (thereby extending past the water’s edge, according to the ARC) by distances of two and one-half feet, four feet, and six feet, respectively. The ARC hired Weygand to return to the property to “run some elevations” on the stone patios and on the lake and to “check[] the overflow structure” for the lake. On August 25, 2010, Weygand determined that the overflow structure was set at 586.35 feet and that the lake elevation that day was 586.58 feet, or almost 7 inches higher than the elevation that is the basis for the contour line on the plat. Weygand testified that the Moons’ counsel had asked him to take the lakeside boundary line as shown on the plat and to superimpose it onto the survey of Lot 341 that he had performed on August 10, 2010. Weygand testified that, by using a vellum overlay and photocopying the contour line on the plat at a size that corresponded to the scale of his survey, he had determined that two of the Moons’ patios at issue did not extend past the lake boundary as shown on the plat but that the third patio at issue did extend “approximately four feet” past the lake boundary as shown on the plat.

On September 15, 2010, the Association and the ARC filed a complaint seeking a preliminary injunction and a permanent injunction to enforce the restrictive covenants on the Moons’ property and to require the Moons to remove the stone patios that allegedly extended past the water’s edge. On October 1, 2010, the trial court entered a preliminary injunction and set the claim for permanent injunctive relief for a November 8, 2010, hearing. On November 3, 2010, the Moons answered the complaint and counterclaimed, alleging several tort claims that remain pending in the trial court.

Following a two-day hearing, the trial court conducted a site visit of the Moons’ property. On November 24, 2010, the trial court entered a lengthy and comprehensive order, denying the Association’s request for permanent injunctive relief and allowing the Moons to recommence all work on their property. The trial court concluded (a) that the term “water’s edge” was ambiguous and that the ambiguity should be resolved against the Association; (b) that the Association had failed to establish that it would suffer irreparable injury unless a permanent injunction were granted; and (c) that “any de minimis benefit that would accrue to the [Association from granting injunctive relief] would be greatly outweighed by the adverse impact to the Moons, including the economic waste that would result from tearing up the patios and the continued unsafe condition created at the Moons’ home as a result of the work-stoppage order.” This timely appeal followed on December 7, 2010.

Standard of Review

“ ‘To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not disserve the public interest.’
“TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1242 (Ala.1999), overruled on another point of law, Holiday Isle, LLC v. Adkins, 12 So.3d 1173 (Ala.2008). The entry of a permanent injunction is reviewed de novo, TFT, Inc., 751 So.2d at 1241; however, [the supreme court] has recognized that ‘a trial court’s consideration of ore tenus testimony has a bearing upon the standard of review [an appellate court applies] to the entry of a permanent injunction.’ Classroomdirect.com, LLC v. Draphix, LLC, 992 So.2d 692, 701 (Ala.2008). See also Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683 (Ala.2009) (according a presumption of correctness to portions of the trial court’s decision based on representations of counsel regarding a settlement agreement where a permanent injunction was issued).”

Sycamore Mgmt. Group, LLC v. Coosa Cable Co., 42 So.3d 90, 93 (Ala.2010). Thus, to the extent that a trial court’s decision on a request for injunctive relief is based on disputed ore tenus evidence,

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

Maxwell v. Boyd, 66 So.3d 257, 258-59 (Ala.Civ.App.2010)

The Association first argues that the trial court erred in concluding that the Moons had not violated the covenants because, it says, the great weight of the evidence indicated that three of the Moons’ six stone patios extended into the lake a distance of two and one-half feet, four feet, and six feet, respectively, and, it maintains, the evidence was undisputed that at least one patio extended four feet beyond the Moons’ property line.

Discussion

“[W]hen the language of a restrictive covenant is not ‘of doubtful meaning and ambiguous,’ the language of that covenant ‘is entitled to be given the effect of its plain and manifest meaning.’ ” Maxwell, 66 So.3d at 261 (quoting Laney v. Early, 292 Ala. 227, 231-32, 292 So.2d 103, 107(1974)). However,

“ ‘ “[w]here the language [in a restrictive covenant] is ambiguous, ‘its construction will not be extended by implication or include anything not plainly prohibited and all doubts and ambiguities must be resolved against [the party seeking enforcement].”” Smith v. Ledbetter, 961 So.2d [141,] 146 [(Ala.Civ.App.2006)] (quoting Greystone Ridge Homeowners’ Ass’n, Inc. v. Shelton, 723 So.2d [88,] 90 [(Ala.Civ.App.1998)], in turn quoting Bear v. Bernstein, 251 Ala. 230, 231, 36 So.2d 483, 484 (1948)).”

Traweek v. Lincoln, 984 So.2d 439, 447 (Ala.Civ.App.2007).

“ ‘In written instruments, two types of ambiguities can arise: a patent ambiguity and a latent ambiguity. McCollum v. Atkins, 912 So.2d 1146, 1148 (Ala.Civ.App.2005). A patent ambiguity results when a document, on its face, contains unclear or unintelligible language or language that suggests multiple meanings. Thomas v. Principal Fin. Group, 566 So.2d 735, 739 (Ala.1990). On the other hand, “[a]n ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Id.’

Grove Hill Homeowners' Ass'n v. Rice, 43 So.3d 609, 614 (Ala.Civ.App.2010) (quoting Smith v. Ledbetter, 961 So.2d 141, 145 (Ala.Civ.App.2006)). “[W]hether a latent ambiguity exists is a question of law we review de novo.” Id. at 615. We hold that, based upon the evidence adduced at the hearing, the trial court correctly determined that there was a latent ambiguity in the ARC’S use of the term “water’s edge” that required interpretation.

ARC members Lowery and Holcomb recognized that the term was imprecise and could not be given a literal meaning. They conceded that the plat designated the lakeside boundary as 269 feet with a “plus- or-minus” qualifier; they admitted that the lake level fluctuated; and they acknowledged that the ARC had given homeowners the benefit of the doubt regarding the lake boundaries of their lots by granting them a one- or two-foot “grace area” in which to build piers and docks past the apparent water’s edge. The trial court concluded:

“Testimony indicated that the [ARC] routinely [has] permitted construction to extend past the water’s edge, and past the boundaries of various properties by one to two feet pursuant to an unwritten ‘grace area,’ even when the express terms of the subject approvals stated that construction could not so extend, as was the case with the Moons’ Landscape Plan. This practice leads the Court to conclude that the term ‘waters edge,’ and the underlying covenant language relating thereto, are ambiguous and therefore subject to interpretation. As discussed hereinafter, this Court interprets this language such that the patio construction violates neither the covenants nor the approved Landscape Plan.”

Weygand (the surveyor), Schoel (the civil engineer), and Saunders (the Moons’ landscaping contractor) all acknowledged the difficulty of pinpointing the water’s edge. According to Weygand — upon whose initial survey the ARC had relied in determining that three of the Moons’ patios were in violation of the covenants because they extended two and one-half feet, four feet, and six feet, respectively, beyond the Moons’ boundary line — after he had superimposed the vellum overlay he had prepared onto his as-built survey of the Moons’ property, it appeared to him that two of the Moons’ patios at issue were not in violation of the covenants at all and that the third patio at issue was four feet over the boundary. On this point, the trial court concluded:

“This Court finds it to be significant that the [Association] stipulated in their complaint that the plat establishes the boundary of the Moons’ property but now ask[s] the Court to disregard a vellum overlay version of the same plat presented by Mr. Weygand. The Court finds the overlay was persuasive evidence that at most, one portion of one patio may have extended up to four feet beyond the Moons’ lakeside border as shown on the plat. This distance is within what this Court finds to be the patent “+/-’ element shown on the plat.”

(Emphasis added.)

The trial court evidently credited, as was its prerogative, the following margin-of-error testimony by Schoel: that the actual point at which the Moons’ land touched the lake could vary by as much as five or six feet from the lake boundary as shown on the plat because of the inherently imprecise method by which the lake boundary contour line on the plat was created. In its findings of fact, the trial court stated:

“14. The lake boundary was created by transposing an aerial topographic survey onto a survey drawing of the subdivision so as to create the solid-lined lake border for each lakefront lot on the plat. As established by the expert testimony of the [Association’s] hydrologist, setting the lake boundary from an aerial topographic survey creates a situation whereby the actual water’s edge could vary from the lake boundary as depicted on the plat by ‘five or six feet horizontally].’ The actual level of Lake Reynolds was not ‘shot’ by a surveyor when the Plat was created.”

(Emphasis added.) We accord that finding a presumption of correctness because it is not “clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” Maxwell, 66 So.3d at 258.

In its findings of fact, the trial court also stated:

“The ... ‘service spillway’ serving as the receiving device for water within Lake Reynolds has an elevation of 586.35 feet. Because the lake must be higher than 586.35 feet for water to drain into this device, ‘normal pool’ for Lake Reynolds exceeds 586.35 feet. On August 25, 2010, surveyor Weygand established that Lake Reynolds had an elevation of 586.58 feet, suggesting that the “water’s edge’ is at a different location from where it is recorded on the plat.”

That finding indicates that the trial court chose to believe the testimony of Weygand and Sehoel over the testimony of ARC chairman Lowery, who said that the vertical water level of the lake varied by only “a few tenths of an inch” from what is recorded on the plat and, therefore, could account for only a one- to two-foot horizontal variance with respect to the point at which the water meets the land.

“It was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.... In order to reverse the trial court ..., we would have to make our own credibility determinations and we would have to reweigh the evidence, neither of which we are allowed to do.”

Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005).

The trial court’s findings as to the location of the Moons’ lake boundary are due additional deference because they were based, in part, upon the trial court’s visit to the property. See Southwestern Constr. Co. v. Liberto, 385 So.2d 633, 635 (Ala.1980) (stating that “[a] determination made by the trial court, when evidence is taken ore tenus, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust, especially where ... the trial judge has made a personal inspection of the premises” to determine whether the defendant’s activities constituted a nuisance and violated restrictive covenants to which the property was subject). The trial court’s order states:

“[T]he Court conducted a site visit of the [Moons’] property on November 12, 2010. At that time, the Court personally walked the relevant portions of the Moons’ property; in particular, the Court examined the recently constructed patio areas and the areas where construction work on the Moons’ home was suspended. From the Moons’ property (and in some instances with the assistance of binoculars), the Court also viewed Lake Reynolds, its dam and drainage devices, and several surrounding lakefront properties on Lake Reynolds. The site visit significantly benefitted the Court, and it serves as a substantial basis for this order.”

The Association next contends that the trial court erroneously applied the law to the facts in the following respects: (a) by relying on evidence indicating that the Association had allowed other property owners to violate the covenant that prohibits building into the lake as a basis for refusing to enforce the covenants applicable to the Moons’ property; (b) by improperly balancing equities by weighing an alleged hardship to the Moons (which hardship, the Association says, was unsupported by the evidence) against an erroneous determination that the Association had suffered no comparable hardship; and (c) by applying the relative-hardship doctrine to the Moons when, the Association says, any hardship suffered by the Moons was self-inflicted.

We have reviewed de novo the trial court’s determination that the Association failed to establish success on the merits of its covenant-violation claim, taking into account the fact that the trial court’s decision was based, in part, on ore tenus testimony and a site visit to the Moons’ property, and we conclude that the trial court’s determination is due to be upheld. Having concluded that the trial court properly determined that Association’s claims failed on the merits, it is unnecessary for this court to decide whether the trial court’s determination was correct with respect to the Association’s arguments (b) and (c) above because those arguments relate to whether the Association proved the other elements necessary to entitle it to a permanent injunction. Therefore, we pretermit any discussion of those issues.

In support of argument (a) above, the Association cites Tubbs v. Brandon, 374 So.2d 1358, 1361 (Ala.1979), for the general rule that “[o]ne will not be es-topped from enforcing restrictive covenants just because he has previously allowed others to deviate in minor respects from the covenants.” The Association maintains that the trial court erred in implying that the Association had waived its right to insist upon removal of the Moons’ lakeside patios by ignoring the piers and docks erected by other property owners. In its findings of fact, the trial court stated:

“19. In response to a query by the Court, Lowery [the chairman of the ARC] testified that the ARC ‘just sort of ignor[es]’ certain provisions of the covenants, in particular those in Amendment No. 6.2.B, pertaining to the covenants’ prohibition on building bulkheads, piers, or docks. In other words, the [Association has] permitted other residents to construct piers and docks [that extend into the lake].”

The trial court did not violate the Tubbs rule because it did not determine that the evidence in question established waiver or estoppel by the Association. Instead, the trial court determined that the evidence in question tended to shed light on whether the term “water’s edge” was ambiguous and, therefore, subject to interpretation. In the conclusions-of-law section of its order, the trial court stated:

“In order to prevail in [its] petition for injunctive relief, the [Association] must first show that the Moons violated the covenants. [It has] failed to prove a material violation thereof. The evidence showed that the [Association’s] enforcement of the covenants has been inconsistent. While this inconsistent conduct alone cannot be held to estop the [the Association] from enforcing the covenants, it is a relevant factor as this Court weighs the equities. What the Court finds persuasive, as suggested above, is that the [Association] failed conclusively to establish a direct violation of the terms of the approved landscape plan that prohibits building past the “water’s edge.’ ”

(Emphasis added.)

For the foregoing reasons, the trial court’s order denying the Association permanent injunctive relief is affirmed.

AFFIRMED.

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

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

      . The evidence indicated that members of the Vestlake Communities Property Owners’ Association are also, by virtue of that membership, members of the Liberty Park Master Owners’ Association.

      . On November 24, 2010, the trial court determined that the ARC "was not a legal entity with the capacity to sue” and, therefore, dismissed the ARC as a plaintiff. Because no argument has been made that the trial court erred in so ruling, we conclude that the ARC is not a proper appellant, and we have, therefore, restyled the appeal.

      . The ARC contends that the Moons violated section 5.07 of the covenants, which provides:
      "5.07 Construction Without Approval. If ... the ARC shall determine that any approved plans and specifications for any improvements or the approved landscaping plans for any lot or dwelling are not being complied with, then ... the owner of such lot or dwelling shall be deemed to have violated these covenants and the ARC shall have the right to exercise any of the rights and remedies set forth in Section 5.13 below.”
      Section 5.13 authorizes the ARC to
      "enjoin any further construction on any lot or dwelling and require the removal or correction of any work in place which does not comply with the plans and specifications approved by the ARC for such improvements.”

      . The device that Weygand called the “overflow structure” is the same device that Schoel referred to as the "service spillway.”

      . See supra note 2.

      . Despite the fact that the trial court did not adjudicate the Moons' counterclaims, this appeal is properly before us because Rule 4(a)(1)(A), Ala. R.App. P., authorizes an appeal to be taken from an order "granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction.” See Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 689-90 (Ala.2009).