author: STUART, Justice.

text:
    SSC MONTGOMERY CEDAR CREST OPERATING COMPANY, LLC v. Linda BOLDING, as attorney in fact and next friend of Norton Means.
    1120122.
    Supreme Court of Alabama.
    March 22, 2013.
    Rehearing Denied June 7, 2013.
    Hunter C. Carroll of Wilkins Tipton, P.A., Birmingham; and Michael E. Phillips of Wilkins Tipton, P.A., Jackson, Mississippi, for appellant.
    J.P. Sawyer of Sawyer Law Firm LLC, Enterprise; and Troy King, Montgomery, for appellee.
   STUART, Justice.

SSC Montgomery Cedar Crest Operating Company, LLC (“SSC Montgomery”), appeals the judgment of the Montgomery Circuit Court denying its motion to compel arbitration of the medical-malpractice claim asserted against it by Linda Bolding, as attorney in fact and next friend of her father, Norton Means. We affirm.

I.

On January 8, 2012, Means was hospitalized after experiencing stroke and/or heart-attack symptoms. On approximately January 25, 2012, he was admitted to Cedar Crest, a nursing-home facility operated by SSC Montgomery, to receive rehabilitation and nursing services while he recovered. At the time Means was admitted to Cedar Crest, he was accompanied by his daughter, Michelle Pleasant, who completed the necessary paperwork on his behalf. Among the paperwork completed and signed by Pleasant was a dispute-resolution agreement (“the DRA”) providing that the “parties” waived their right to a judge or jury trial in the event a dispute arose between them and instead agreed to resolve any such dispute by way of a dispute-resolution program consisting of mediation and binding arbitration. The DRA further defined the term “parties” as including:

“(a) [T]he resident, any and all family members who would have the right to bring a claim in state court on behalf of the resident or the resident’s estate, a legal representative, including a power of attorney for healthcare and/or financial matters or a court appointed guardian, or any other person whose claim is derived through or on behalf of the resident, including, in addition to those already listed in this definition, any parent, spouse, child, executor, administrator, heir or survivor entitled to bring a wrongful death claim, and (b) the facility, [related corporate entities, and any of their employees or agents].”

Pleasant signed her name on the final page of the DRA on a line indicated for the “Signature of Legal Representative or Family Member” and under the following paragraph:

“If resident is adjudged incompetent, complete this section:
“I am the spouse, responsible party, legal guardian or power of attorney of the resident and have the authority to sign the agreement on his/her behalf. In signing this Agreement, the Legal Representative or Family Member binds both the Resident and themselves individually.”

On' March 2, 2012, Means was hospitalized again. On March 6, 2012, another of his daughters, Linda Bolding, whom Means had previously granted a durable power of attorney, sued SSC Montgomery, alleging that Cedar Crest staff had negligently cared for Means, causing him to suffer dehydration, malnourishment, and an untreated infection that combined to result in his hospitalization on March 2. On April 5, 2012, SSC Montgomery filed both its answer denying Bolding’s allegations and a motion to compel arbitration pursuant to the terms of the DRA. Bolding subsequently filed a response, arguing that it would be improper to enforce the DRA because, she argued, Pleasant had no legal authority to act on Means’s behalf at the time Pleasant executed the DRA. Following a September 12, 2012, hearing, the trial court entered an order denying SSC Montgomery’s motion to compel arbitration. On October 2, 2012, SSC Montgomery filed its timely notice of appeal to this Court.

II.

Our standard of review of a ruling denying a motion to compel arbitration is well settled:

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[Ajfter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).”’

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

III.

There is no dispute that a contract calling for arbitration — the DRA- — ■ exists in this case and that that contract evidences a transaction affecting interstate commerce. The issue here is whether the DRA applies to the claims brought by Bolding on behalf of Means, neither of whom signed the DRA. The general rule in Alabama is that “a nonsignatory to an arbitration agreement cannot be forced to arbitrate her claims.” Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001). However, there are exceptions to this rule, see generally MTA, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 114 So.3d 27, 31 (Ala.2012), and this Court has created a distinct body of case-law considering specifically the issue how and when arbitration agreements executed by the owners and operators of nursing homes and their residents and/or their residents’ family members should be enforced. See Owens v. Coosa Valley Health Care, Inc., 890 So.2d 983 (Ala.2004); Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661 (Ala.2004); Noland Health Servs. v. Wright, 971 So.2d 681 (Ala.2007); Carraway v. Beverly Enters. Alabama, Inc., 978 So.2d 27 (Ala.2007); and Tennessee Health Mgmt., Inc. v. Johnson, 49 So.3d 175 (Ala.2010). The United States Court of Appeals for the Eleventh Circuit recently reviewed this caselaw in Entrekin v. Internal Medicine Assocs. of Dothan, P.A., 689 F.3d 1248, 1259 (11th Cir.2012), and concluded, correctly, that the principle to be extracted from these cases is that an arbitration agreement that binds the nursing-home resident also binds the resident’s representative. Thus, in order to determine whether Bolding is bound by the DRA, we must determine whether Means was bound by the DRA. For the reasons that follow, we conclude he was not.

The only evidence before the Court in this case indicates that Means was mentally incompetent when he was admitted to Cedar Crest and the DRA was executed; indeed, SSC Montgomery does not even argue that he was competent at any relevant time. The evidence of Means’s incompetency includes an affidavit submitted by Bolding in which she states: “On January 25, 2012, my father was mentally incompetent and physically incapacitated. My father did not have the mental capacity to give his consent to an arbitration agreement at that time.” Moreover, Pleasant signed the DRA, provided her by SSC Montgomery, underneath a paragraph that instructed: “If resident is adjudged incompetent, complete this section.”

Children and the mentally incompetent have traditionally been treated differently under the law than the standard competent adult. See, e.g., Ex parte E.R.G., 73 So.3d 634, 678 (Ala.2011) (Main, J., dissenting) (“The state necessarily injects itself into the affairs of children and the mentally incompetent when they are in need of protection because their developmental differences and their environmental restraints render them more vulnerable than competent adults.”). And, while we have held that competent residents of nursing homes may be bound by arbitration agreements executed by their representatives, see, e.g., Carraway, 978 So.2d at 30-31, and Johnson, 49 So.3d at 176, orn-eases also indicate that incompetent residents are not so bound. In Noland Health Services, we considered whether the administrator of Dorothy Willis’s estate was bound to arbitrate personal-injury and wrongful-death claims stemming from Dorothy’s treatment at a nursing home pursuant to an arbitration provision in a contract executed by Dorothy’s daughter-in-law, Vicky Willis, when Dorothy was admitted to the nursing home. 971 So.2d at 683. A plurality of the Court agreed with the trial court’s finding that Dorothy was incompetent when the contract was signed and that Vicky’s signature as the “responsible party” or next friend on that contract “was ineffective to bind Dorothy or her personal representative to the agreement.” 971 So.2d at 686. In support of that conclusion, the plurality opinion quoted Page v. Louisville & Nashville R.R., 129 Ala. 232, 238, 29 So. 676, 678 (1901), for the proposition that “one who purports to act merely as a ‘next friend’ of a ‘non compos mentis’ is ‘wholly without authority to make any contract that would bind her or her estate.’ ” Noland Health Servs., 971 So.2d at 686.

Of course, Noland Health Services was a plurality opinion, and its precedential value is accordingly limited. Ex parte Achenbach, 783 So.2d 4, 7 (Ala.2000). However, this Court subsequently recognized the principle for which Noland Health Senices is now cited in Johnson. In Johnson, Tennessee Health Management (“THM”) appealed the denial of its motion to enforce an arbitration agreement against Carol Rousseau Johnson, who was prosecuting personal-injury and wrongful-deaths claims against THM in her capacity as the personal representative of the estate of Dolores Rousseau, who allegedly was injured while a resident of a nursing home operated by THM. 49 So.3d at 176. When Dolores was admitted to that nursing home, her daughter Barbara Rousseau had signed an arbitration agreement with THM, but “[tjhere is no evidence indicating that Dolores ... was mentally incompetent when she was admitted. 49 So.3d at 176-77. Citing No-land Health Services, Carol subsequently argued to this Court that Dolores was not bound by the arbitration agreement because she had not signed it. 49 So.3d at 180. This Court rejected her argument, distinguishing Noland Health Services as follows:

“Carol relies upon Noland Health Services, Inc. v. Wright, 971 So.2d 681 (Ala.2007). In Noland, a plurality of this Court held that a daughter-in-law’s signature as the responsible party on a nursing-home arbitration agreement was ineffective to bind the resident to the agreement. Noland is distinguishable from this case, however, because the nursing-home resident in Noland was mentally incompetent and could not authorize anyone to act on her behalf and because the daughter-in-law did not sign any document in the capacity of her mother-in-law’s legal representative.”

Johnson, 49 So.3d at 180-81. We thereafter held that the arbitration agreement executed by Barbara did bind Dolores and was therefore enforceable against Carol, thus recognizing the distinction between arbitration agreements signed on behalf of nursing-home residents who are incompetent and those signed on behalf of nursing-home residents who are competent. 49 So.3d at 181.

SSC Montgomery argues that Noland Health Services is distinguishable inasmuch as Vicky Willis did not sign the contract containing the arbitration provision in Noland Health Services as Dorothy’s legal representative, while, SSC Montgomery asserts, Pleasant did sign the DRA as Means’s legal representative. We disagree, however, with SSC Montgomery’s assertion that Pleasant signed the DRA as Means’s legal representative. The signature block on the DRA indicates that Pleasant signed the DRA as “Legal Representative or Family Member.” (Emphasis added.) Moreover, although the paragraph above the signature line indicates that the signer of the document is asserting that he or she has “the authority to sign the agreement on [the resident’s] behalf,” merely claiming to have legal authority on someone else’s behalf or claiming to be someone else’s legal representative does not make it so. It is undisputed that Pleasant has never held a power of attorney for Means, and she also stated in an affidavit submitted to the trial court that she was granted “no legal authority by him or anyone else to enter into the [DRA] on his behalf.”

SSC Montgomery argues in the alternative that the doctrine of apparent authority should nevertheless bind Means, and by extension Bolding, to the DRA. In Carraway, we applied the doctrine of apparent authority to hold that Shirley Carr-away, a nursing-home resident, was bound by an arbitration agreement signed by her brother Richard Carraway:

“Just as Richard signed all the other documents relating to Shirley’s admission into the nursing home on Shirley’s behalf, Richard signed the arbitration agreement on Shirley’s behalf expressly as an ‘authorized representative.’ Apparent authority ‘is implied where the principal passively permits the agent to appear to a third person to have the authority to act on [her] behalf.’ Treadwell Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So.2d 859, 861 (Ala.Civ. App.1983). ‘It is not essential that the right of control be exercised so long as that right actually exists.’ Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350, 1352 (Ala.1977). There is no evidence indicating that Shirley had any objection to Richard’s acting on her behalf in admitting Shirley to the nursing home. On the contrary, the evidence suggests that Shirley approved of her brother’s acting on her behalf. A few weeks into Shirley’s residency at the nursing home, she executed a power of attorney, giving Richard further authority to act on her behalf.”

978 So.2d at 30-31. We likewise applied the doctrine of apparent authority in Johnson, stating that Dolores “passively permitted Barbara to appear to THM to have the authority to act on her behalf, and Barbara’s apparent authority is, therefore, implied.” 49 So.3d at 180. However, in both Carraway and Johnson the nursing-home resident was competent and effectively acquiesced to and/or ratified the decisions made by their respective representative, thus making the application of the apparent-authority doctrine appropriate.

In contrast, the only evidence in the record in this case indicates that Means is incompetent and thus unable to empower an agent, whether passively or through affirmative acts. See Johnson, 49 So.3d at 180-81 (“[T]he nursing-home resident in Noland was mentally incompetent and could not authorize anyone to act on her behalf....”). Thus, at best Pleasant may have purported to be Means’s legal representative, but that is an insufficient basis upon which to apply the doctrine of apparent authority. Northington v. Dairyland Ins. Co., 445 So.2d 283, 286 (Ala.1984) (“[I]n order for a principal to be held liable under the doctrine of apparent authority and estoppel, the principal must have engaged in some conduct which led a third party to believe that the agent had authority to act for the principal.” (emphasis added)). See also Gray v. Great American Reserve Ins. Co., 495 So.2d 602, 607 (Ala.1986) (noting that one cannot “blindly trust” another’s statements regarding the extent of his or her agent power), and City Stores Co. v. Williams, 287 Ala. 385, 391, 252 So.2d 45, 51 (1971) (“The burden of proving agency rests upon the party asserting it.”).

In conclusion, we hold that Means was not bound by the DRA executed by Pleasant; therefore, Bolding was not bound. However, we emphasize that this conclusion is not reached because Means did not personally execute the DRA. Rather, it is because all the evidence in the record indicates that Means is incompetent. Thus, while Bolding, as the holder of a durable power of attorney granted by Means, may have been able to bind him to an arbitration agreement, Pleasant, as merely a family member or next friend, could not.

IV.

Bolding sued SSC Montgomery as Means’s attorney in fact and next friend, alleging medical malpractice in the care he received at Cedar Crest. SSC Montgomery moved to compel arbitration in the case pursuant to an arbitration agreement Pleasant signed when Means was admitted to Cedar Crest; however, the trial court denied that motion. We hereby affirm the judgment of the trial court, holding that Pleasant’s signature on the arbitration agreement was ineffective to bind Means, and by extension his legal representative Bolding, because the evidence indicates he was mentally incompetent at the time Pleasant executed the agreement.

AFFIRMED.

MOORE, C.J., and PARKER and WISE, JJ., concur.

MURDOCK, J., concurs in the result.

      . Bolding's complaint also named as defendants four other corporate entities she alleged were related to SSC Montgomery, as well as two Cedar Crest employees. However, those corporate entities were later dismissed by agreement of the parties, and thp two Cedar Crest employees did not join in the motion to compel arbitration that is the subject of this appeal; therefore, in this opinion, we refer to only SSC Montgomery.

      . Citing Queen v. Belcher, 888 So.2d 472, 477-78 (Ala.2003), SSC Montgomery argues that the statements in Bolding's affidavit regarding Means's competency cannot be considered; however, SSC Montgomery did not object to that affidavit or move to strike it, even though it filed a reply to the filing to which the affidavit was attached as an exhibit. Consideration of the affidavit is therefore proper. Ex parte Secretary of Veterans Affairs, 92 So.3d 771, 777 (Ala.2012).

      . The United States Court of Appeals for the Eleventh Circuit concluded in Entrekin that part of the holding in Noland Health Services was inconsistent with Briarcliff, Carraway, and Johnson. 689 F.3d at 1255-60. However, it is unnecessary for us to consider that and other aspects of the Noland Health Services holding in this case.

      . There is some indication in Carraway that Shirley may have been incompetent at the time she was admitted to the nursing home, although Richard’s argument was premised on the claim that she was in fact competent. 978 So.2d at 29-30. Regardless, it is undisputed that she apparently became competent at some point because she executed a power of attorney in favor of Richard after her admittance.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    Christopher E. SANSPREE, Sr. v. STERLING BANK.
    1111419.
    Supreme Court of Alabama.
    June 7, 2013.
    Christopher E. Sanspree, Montgomery, for appellant.
    Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   BRYAN, Justice.

Christopher E. Sanspree, Sr., appeals from a summary judgment entered in favor of Sterling Bank. We dismiss the appeal as being from a nonfinal judgment.

In June 2011, Sterling Bank sued San-spree, alleging that Sanspree had defaulted on a promissory note executed in favor of Sterling Bank. In October 2011, San-spree filed an answer in which he asserted counterclaims. In his counterclaims, San-spree acknowledged that he had signed the promissory note agreeing to repay a loan he had obtained from Sterling Bank. However, Sanspree alleged that, before he signed the promissory note, Sterling Bank had fraudulently represented to him that it would later modify the loan to reflect terms more favorable to Sanspree than those in the note he was signing. San-spree claimed that he had signed the promissory note based on the allegedly fraudulent representation. Sanspree also alleged that, after the promissory note was executed, Sterling Bank made fraudulent representations and concealed certain information regarding the possible modification of the loan. Sterling Bank never modified the loan. Sanspree asserted counterclaims of fraudulent representation, fraudulent concealment, negligence and/or wantonness, and negligent and/or wanton hiring, training, and supervision. San-spree later alleged three additional counterclaims, but those counterclaims were eventually dismissed.

In May 2012, Sterling Bank moved for a summary judgment on only its claim against Sanspree. The summary-judgment motion stated that Sterling Bank was not moving for a summary judgment on Sanspree’s counterclaims against it. San-spree filed a response to the summary-judgment motion, arguing that Sterling Bank’s claim against him should not be adjudicated separately from his counterclaims. In July 2012, the trial court entered a summary judgment in favor of Sterling Bank on its claim against San-spree; the summary judgment did not address Sanspree’s counterclaims. Sanspree subsequently moved the trial court to certify the summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On July 19, 2012, the trial court certified the summary judgment as final under Rule 54(b), and Sanspree subsequently appealed to this Court.

Sterling Bank has moved this Court to dismiss the appeal, arguing that the trial court should not have certified the summary judgment as final under Rule 54(b). We agree.

“‘Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.’ ”

North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344 (Ala.2008) (quoting Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001)).

“Rule 54(b) provides, in part:
“ ‘When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’
“This Court recently explained the appropriate standard for reviewing Rule 54(b) certifications, stating:
“ ‘ “If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531- (Ala.2007).
“ ‘Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court’s conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.’
“Centennial Assocs. v. Guthrie, 20 So.3d 1277, 1279 (Ala.2009). Reviewing the trial court’s finding in Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:
“ ‘This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘ “It bears repeating, here, that ‘ “[certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.” ’ State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). ‘ “ ‘Appellate review in a piecemeal fashion is not favored.’ ” ’ Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003) ] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis [omitted]).”
‘Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).’
“In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether ‘the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ Schlarb, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So.3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required ‘resolution of the same issue’ as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008)(concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues).”

Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala.2010).

This case is similar to Branch v. South-Trust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987). In Branch, a bank sued Branch, alleging that he had defaulted on a promissory note. Branch counterclaimed, alleging that an agent of the bank had made a fraudulent representation upon which he had relied in executing the promissory note. The bank moved for a summary judgment on both its claim and Branch’s counterclaim. The trial court entered a summary judgment in favor of the bank on its claim, but it declined to enter a summary judgment in favor of the bank on Branch’s counterclaim. The trial court certified the summary judgment as final pursuant to Rule 54(b). On appeal, this Court concluded that the trial court should not have certified the summary judgment as final. We explained:

“The facts in this case ... do not present the type of situation that Rule 54(b) was intended to cover. The counterclaim asserted by Branch is based upon an alleged fraudulent representation by an agent of [the bank] upon which Branch claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results. We must conclude, therefore, that in the interest of justice, the claims should not be adjudicated separately.”

Branch, 514 So.2d at 1374.

Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477 (Ala.1987), presented a situation similar to Branch. This Court has summarized the holding in Gray as follows:

“In Gray ... Central Bank sued, alleging a default on a promissory note. Frank Gray was a defendant by virtue of his being a guarantor of the note. Only a 1983 agreement signed by Gray was the subject of the appeal before this Court. Gray and another defendant filed an answer that asserted the affirmative defense of fraud; the answer also contained a counterclaim by Gray alleging fraudulent misrepresentation and civil conspiracy against Central Bank and a bank officer, as an agent of the bank. Central Bank thereafter filed a motion for a summary judgment on both its complaint and Gray’s counterclaim. The trial court entered a summary judgment for the bank on Gray’s counterclaim, but left the bank’s claim on the promissory note pending. Upon motion of Central Bank, the trial court certified the summary judgment on Gray’s counterclaim as final under Rule 54(b). On appeal, this Court, finding that the facts of that case were analogous to those of Branch, supra, determined that Central Bank’s claim on the promissory note and Gray’s counterclaim alleging fraud should not be adjudicated separately ‘[bjecause the issues in these two claims [were] “closely intertwined” and because a separate adjudication would indeed pose an unreasonable risk of inconsistent results.’ 519 So.2d at 479.”

Clarke-Mobile Cntys. Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 96 (Ala.2002).

In Clarke-Mobile Counties Gas District, supra, this Court relied on Branch and Gray in determining that the trial court had erred in certifying as final a summary judgment entered on counterclaims when there were opposing claims of breach of contract and fraud. In that case, the Court noted that “[i]n Branch ... and Gray ... this Court held that opposing claims of breach of contract (specifically default), and fraud, based upon the same set of facts, should not be separately adjudicated.” 834 So.2d at 96. See also Harlan Home Builders, Inc. v. Hayslip, 58 So.3d 102 (Ala.2010) (concluding that the case presented a “mirror image” of the situation in Branch and that the trial court had erred in entering a Rule 54(b) certification).

Similarly, the trial court in this case erred in certifying the summary judgment on Sterling Bank’s breach-of-contract claim as final under Rule 54(b). San-spree’s unadjudicated counterclaims include an allegation that Sterling Bank made a fraudulent representation upon which Sanspree relied in executing the promissory note. The resolution of San-spree’s allegation of fraud could affect his liability on the promissory note. See Branch, Gray, and Clarke-Mobile Counties Gas District. Thus, issues in the claim certified as final and a pending counterclaim “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, 514 So.2d at 1374. Accordingly, the trial court’s Rule 54(b) certification was invalid, and this appeal is from a nonfinal judgment. Therefore, we dismiss the appeal.

We deny Sterling Bank’s request for an award of attorney fees and costs.

APPEAL DISMISSED.

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


author: THOMAS, Judge.

text:
    Lisa ANTOINE v. OXMOOR PRESERVATION/ONE, LLC; Johnson Realty Company, Inc.; and Hager Company, Inc.
    2100839 and 2110139.
    Court of Civil Appeals of Alabama.
    July 20, 2012.
    Rehearing Applications Denied Sept. 14, 2012.
    Certiorari Denied May 10, 2013 Alabama Supreme Court 1120015.

      Kenneth J. Lay of Wooten Hood & Lay, LLC, Birmingham, for appellant.
    Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellees Oxmoor Preservation/One, LLC, and Hag-er Company, Inc.
   THOMAS, Judge.

Lisa Antoine and her husband, Ronald Glenn, purchased Lot 35 in the Highland Manor at Oxmoor Landing subdivision (“the subdivision”) in November 2007. Antoine and Glenn built a house on Lot 35. After they built the house, Antoine and Glenn began experiencing problems with flooding in their yard caused by the overflow of water from neighboring lots and with an influx of mud and sediment that overflowed from neighboring Lot 40. Oxmoor Preservation/One, LLC (“Oxm-oor”), is the owner of Lots 36, 37, 38, and 39 (“the Oxmoor lots”) in Oxmoor Landing. Johnson Realty Company, Inc. (“Johnson”), was the developer of the subdivision and, at one time, owned Lot 40. Hager Company, Inc. (“HCI”), was the engineering company used by Johnson in designing the subdivision.

Antoine and Glenn sued Oxmoor, Johnson, and HCI, among other defendants who were later dismissed from the action, alleging trespass to property, injury to real property, and nuisance. Oxmoor counterclaimed, asserting a trespass and a negligence claim against Antoine and Glenn, based upon its allegation that Antoine and Glenn had elevated the rear portion of their lot when they built their house, which had resulted in an obstruction of the natural flow of surface waters from the Oxmoor lots. After a trial in December 2010, the trial court entered a detailed judgment in March 2011, finding against Antoine and Glenn on their claims for relief and in favor of Oxmoor on its counterclaims. The March 2011 judgment reads, in part:

“1. [Antoine and Glenn’s] claims for relief are denied as the Court finds that they have failed to meet their burden to reasonably satisfy the Court of the truthfulness of their claims.
“2. Judgment is entered in favor of ... Oxmoor ... and HCI ... on their Counterclaims and against [Antoine and Glenn] in the amount of $35,000.00 compensatory damages.[]
“3. [Antoine and Glenn] are permanently enjoined from obstructing the free flow of surface waters draining from Oxmoor’s upper land, being Lots 36, 37, 38 and 39, over [their] land, being Lot 35, to Oxmoor’s lower land, being Lot 34, all such lots being part of Highland Manor at Oxmoor Landing Phase One, Sector One, Map Book 216, Page 13, in the Probate Court of Jefferson County, Alabama, Bessemer Division.
“4. [Antoine and Glenn] are ordered to abate the obstruction from such drain way by constructing and permanently maintaining a drain way (whether ditch or other facility) on Lot 35 along an appropriate course, and of a sufficient size and structure, to drain all surface waters that may reasonably be expected to drain from Oxmoor’s upper land, and to conduct them through Lot 35 to Lot 34. Such work shall be performed according to sound engineering] principles and at [Antoine and Glenn’s] expense.
“5. [Antoine and Glenn] and [Oxmoor and HCI] are to, within thirty days after this Order is non-appealable to a high Court, meet together and [Antoine and Glenn] [are] to share their plans on how to effectuate the mandates of Paragraph 4 above regarding the construction of the drain way. Should [Oxmoor and HCI] have objection regarding the same, the issue of how the drain way is to be constructed shall be submitted to binding arbitration by a neutral to be mutually agreed upon by the parties, and if there be no agreement, selection of the arbitrator by the Court. The costs of such arbitration shall be borne by [Antoine and Glenn]. [Oxmoor and HCI] shall inform [Antoine and Glenn] in writing the date that they consider this Order to be non-appealable which is generally, but not always, the 43rd day after the date this Order is entered if there are no post-trial motions filed; or the 43rd day after the date any post-trial motions are denied.
“6. The construction of the drain way shall be completed within four months after the day the parties meet and agree on [Antoine and Glenn’s] plan of action in accord with paragraph 5 above or within four months after the arbitrator issues his decision regarding how the drain way is to be constructed.
“7. Should [Antoine and Glenn] fail to construct the drain way pursuant this order within the above stated parameters and time frame, [Oxmoor and HCI] shall be authorized to enter upon [Antoine and Glenn’s] property and construct the drain way in such a way as they deem to be in accordance with sound engineering principles.
“8. Should [Oxmoor and HCI] be required to build the drain way they shall be entitled to reimbursement from [Antoine and Glenn] for all costs related to the same. Should [Antoine and Glenn] fail to timely reimburse [Oxmoor and HCI] for such expenses, [Oxmoor and HCI] shall have access to all legal means available to a judgment creditor including but not limited to the entry of a monetary judgment against [Antoine and Glenn]; garnishment and contempt proceedings; and the filing of any appropriate lien.
“9. Costs of this action are taxed against [Antoine and Glenn].
“10. Any requested relief not granted herein shall be deemed denied.”

Both Antoine and Oxmoor and HCI filed postjudgment motions directed to the March 2011 judgment. Antoine attached several documents that had not been introduced as evidence at trial to her post-judgment motion; Oxmoor and HCI successfully moved the trial court to strike those documents. After both post-judgment motions were denied, Antoine and Glenn appealed to this court. The appeal was assigned case number 2100839 (“the nuisance appeal”).

In July 2011, while the nuisance appeal was pending, Antoine and Glenn sought leave from this court to file a Rule 60(b), Ala. R. Civ. P., motion directed to the March 2011 judgment. We granted Antoine and Glenn leave, and they filed a Rule 60(b) motion in the trial court on July 14, 2011. We stayed the nuisance appeal pending the resolution of the Rule 60(b) action. On September 15, 2011, Antoine filed in the trial court a suggestion of death regarding Glenn. The trial court denied the Rule 60(b) motion on October 21, 2011, and Antoine appealed that judgment. The appeal of the October 2011 judgment was assigned case number 2110139 (“the Rule 60(b) appeal”). Upon the request of the parties, we consolidated the nuisance appeal and the Rule 60(b) appeal.

The Nuisance Appeal

The testimony at trial established that Antoine had leveled Lot 35 to build her house and that, in doing so, she had redistributed dirt from one portion of the lot to fill in other areas of the lot. She testified that she had served as her own general contractor when she built the house. She also said that she understood that when building a house one must ensure that the water does not drain into the house and that one must not obstruct a natural drain way.

Karl Hager, a land surveyor and the president of HCI, testified that, as a land surveyor, he had designed several subdivisions. He said that he had walked the property that became the subdivision and that he had never noticed a wetland or swamp area on the property. He noted that had seen no signs of standing water, of water marks on trees, or of damage to trees that would have been caused by standing water. He stated that the trees in the area were not trees that commonly inhabit swampy or wetland areas, noting that most of the trees in the subdivision were oaks and hickories; he also commented that he had not observed any “marshy” plants, like cattails. According to Hager, the ground was firm and it “perked,” indicating that the soil was permeable.

During Hager’s testimony, he discussed several maps. He stated that a map made by Jefferson County indicating that the area around the lots in question comprised wetlands was incorrect. Hager also testified that, based on his review, other maps, including the United States Quadrangle Map and the United States Geological Survey map, had indicated that the area in question was not a wetland.

Hager explained that a portion of Lot 35 served as a natural drain way for upper lots in the subdivision, including Lots 42, 41, 40, 39, 38, 37, and 36. He testified:

“Well, it was apparent to me, especially when you stand on lot 34, which is lower than the lowest point I could find on lot 38, downhill is from 38 through 35 to 34, and it’s indisputable. It can be verified by me or anybody. And when you stand on 34 and then look back up towards 38, you are going to see a hump that has been created in Ms. Antoine’s backyard. Nice pretty grass sod, but it’s definitely been raised 24 inches plus.”

Hager also explained that he had been present when Jason Ayers, a geotechnical engineer hired by Oxmoor and HCI, measured the elevation on Lot 35 and dug test holes to determine whether Lot 35 had been elevated by the addition of dirt or other fill material. According to Hager, the test holes revealed that, at one point on Lot 35, at least 32 inches of topsoil and other dirt had been added to the lot to make it level; he noted that the test holes had included some construction debris, indicating that, at one time, the level at which the construction debris appeared was the natural surface level of the Lot 35. Hager also noted that his own elevation testing had revealed that portions of Lot 35 were higher than the natural low point on Lot 35 where surface water would drain. Based on this information, Hager testified that Lot 35 had been elevated by-use of dirt or other fill and that, as a result, the natural drain way had been obstructed, which caused the ponding on the Oxmoor lots.

In her brief on appeal, Antoine questions whether the trial court’s March 2011 judgment is a final judgment for purposes of appeal for two reasons. She first argues that the failure to specifically mention Johnson in the March 2011 judgment prevents that judgment from being final because not all the claims against all the parties have been adjudicated. See Rule 54(b), Ala. R. Civ. P.; Campbell v. Taylor, 76 So.3d 258, 261 (Ala.Civ.App.2011) (“An order that resolves claims against fewer than all the defendants is not a final judgment that is capable of supporting an appeal in the absence of a proper certification of finality pursuant to Rule 54(b).”). We disagree. The March 2011 judgment states that “[Antoine and Glenn’s] claims for relief are denied.” The language used by the trial court does not limit the March 2011 judgment disposing of Antoine and Glenn’s claims to only those claims against Oxmoor and HCI; the judgment refers to Antoine and Glenn’s claims for relief without limitation. Thus, we cannot conclude that the March 2011 judgment is not final because it fails to dispose of Antoine and Glenn’s claims against Johnson.

Antoine also notes that paragraph 5 of the trial court’s judgment clearly envisions continued proceedings regarding the type of drain way Antoine and Glenn were to build under the judgment. As Antoine points out, “[a] final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been a complete adjudication of all matters in controversy between the litigants within the cognizance of that court.” Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976). Because the judgment leaves open issues to be decided at a later time, Antoine argues, it is not a final, terminative decision.

However, it is well settled that a judgment in equity need not decide all details of the matters between the parties to be a final judgment; instead, the judgment is final if “ ‘it ascertains and declares the rights of the parties and settles the equities.’ ” McCulloch v. Roberts, 290 Ala. 303, 305, 276 So.2d 425, 426 (1973) (quoting Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932)). As explained in McCulloch, the determination of finality “ ‘is not controlled by the fact that the cause remains in fieri in respect to other matters.’ ” McCulloch, 290 Ala. at 305, 276 So.2d at 426 (quoting Carter, 225 Ala. at 293, 142 So. at 519). As further explained in Sexton v. Sexton, 280 Ala. 479, 482, 195 So.2d 531, 533 (1967):

“Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri.”

This rule survived the merger of law and equity and the adoption of the Rules of Civil Procedure. Miles v. Bank of Heflin, 295 Ala. 286, 290, 328 So.2d 281, 284-85 (1976) (applying the rule set out in McCul-loch to determine that a judgment in which the trial court ordered reference to a special master for certain determinations was, in fact, a final judgment that would support an appeal and discussing the application of Rule 53, Ala. R. Civ. P., and the fact that the merger of law and equity did not prevent application of the long-recognized rule that equity judgments may be final despite leaving other matters for later determination).

The March 2011 judgment determined the issues that were before the trial court: did Oxmoor and HCI cause water to trespass onto Lot 35, did a nuisance exist, who created it, are damages due, and who should abate the nuisance. The trial court determined that Oxmoor and HCI were not responsible for causing water to trespass onto Lot 35. The trial court also determined that Antoine and Glenn had created a nuisance by obstructing the flow of surface water across Lot 35, that Oxm-oor was due damages for the nuisance, and that Antoine and Glenn should be responsible for building a drain way to drain the surface waters across Lot 35. Under the March 2011 judgment, the only issue left for further determination is the exact plan for the drain way to abate the nuisance, a matter the trial court desired the parties to determine or, if agreement was not possible, an arbitrator to decide. Thus, we conclude that the March 2011 judgment is a final judgment capable of supporting an appeal.

We turn now to Antoine’s arguments regarding, the merits of the trial court’s March 2011 judgment. She argues that the trial court used an incorrect legal standard to evaluate surface-water rights, that it erred when it failed to award her damages for nuisance, that it erred when it failed to award her damages for continuing trespass, and that the trial court erred when it ordered her to “make corrections” to her property and to allow water to flow over her property. She further complains that the trial court erred by ordering the parties to attend binding arbitration to determine the proper manner in which to build the drain way. Finally, she argues that the trial court erred in failing to hold a hearing on her postjudgment motion.

Because it is the easiest of her arguments with which to dispense, we first address Antoine’s argument that the trial court erred by failing to hold a hearing on her postjudgment motion. Antoine did not request a hearing in her postjudgment motion. Our appellate courts have consistently held that the failure to request a hearing in a postjudgment motion waives the right to such a hearing under Rule 59(g), Ala. R. Civ. P. Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989); Frederick v. Strickland, 386 So.2d 1150, 1152 (Ala.Civ.App.1980). Thus, the trial court committed no error in failing to hold a hearing on Antoine’s postjudgment motion.

We now turn to Antoine’s substantive argument concerning the law applicable -to surface-water rights. Antoine argues that the trial court improperly applied the “civil law rule” to determine that Antoine had obstructed the flow of surface water and to thus conclude that she owed damages to Oxmoor and that she should be required to construct a drain way to drain the surface water. Under the “civil law rule,” which governs surface waters on property in rural areas, “land is legally subservient to the natural flowage of surface water and the lower landowner may not disrupt the flow of [surface] water to the upper owner’s detriment.” City of Mountain Brook v. Beatty, 292 Ala. 398, 404, 295 So.2d 388, 392 (1974). However, in urban or developed areas, the “common law rule,” also known as the “common enemy rule,” governs the treatment of surface water by property owners. Beatty, 292 Ala. at 404, 295 So.2d at 392. Under the “common law rule,” “surface water is regarded as a common enemy, and every landowner has the right, as a general rule, to take any measures necessary for the protection of his own property.” Id.

Oxmoor and HCI argue that Antoine has presented the legal argument that the trial court applied the incorrect rule regarding surface water too late because she did not raise it until she filed her Rule 60(b) motion. Oxmoor and HCI rely on the principle of law permitting, but not requiring, a trial court to consider a legal argument raised for' the first time in a postjudgment or Rule 60(b) motion. See Diamond v. Aronov, 621 So.2d 263, 267 (Ala.1993); Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988). Thus, they argue, the trial court did not abuse its discretion in failing to entertain Antoine’s new legal argument.

In fact, however, based on our review of the records in the both actions, Antoine never once made the argument to the trial court that the “common law rule” as opposed to the “civil law rule” regarding surface water should have been applied to this case. Instead, Antoine argued in her Rule 60(b) motion that, because her property lies in a subdivision, the dispute regarding the surface water should have been governed by subdivision regulations. An appellate court cannot consider an argument asserted for the first time on appeal. Shiver v. Butler Cnty. Bd. of Educ., 797 So.2d 1086, 1088 (Ala.Civ.App.2000) (“Even if a particular issue is raised at the trial level, an appellate court may review that issue only on the theory on which it was tried and on which the judgment was rendered.”). Thus, we conclude that Antoine cannot now assert her legal argument that the trial court should have applied the “common law rule” regarding surface water to the dispute between her and Oxmoor and HCI.

Antoine next argues that the trial court erred in determining that she was not entitled to damages for the continuing trespass caused by the water from the ponding on the Oxmoor lots extending to the back of Lot 35. As Oxmoor and HCI point out, Antoine’s argument fails because the trial court determined that her actions, and not the actions of Oxmoor and HCI, created the ponding on the Oxmoor lots and the back of Lot 35. “Trespass requires an intentional act by the defendant.” Russell Corp. v. Sullivan, 790 So.2d 940, 945 (Ala.2001). That is, Antoine was required to prove that Oxmoor or HCI “intentionally eause[d] some ‘substance’ or ‘thing’ to enter” upon Lot 35. Born v. Exxon Corp., 388 So.2d 933, 934 (Ala.1980). Because the trial court determined that Antoine’s actions had caused the ponding, it necessarily determined that neither Oxmoor nor HCI had intentionally caused the water to encroach on Lot 35. Accordingly, the trial court did not err by failing to award Antoine damages for trespass.

Antoine further argues that the trial court erred by failing to award her damages for the nuisance caused by the ponding. Antoine’s nuisance argument suffers the same fate as her trespass argument. Regarding nuisance actions, our supreme court has explained:

“Ala.Code 1975, § 6-5-120, has been liberally interpreted to effect its broadly stated purpose (providing a remedy for ‘anything that works hurt, inconvenience or damage to another’). See McCraney v. City of Leeds, 239 Ala. 143, 194 So. 151 (1940); and Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974). We also agree that ‘anything* (i.e., a nuisance, public or private) may consist of conduct that is intentional, unintentional, or negligent. Indeed, it may even consist of activities that- are conducted in an otherwise lawful and careful manner, as well as conduct that combines with the culpable act of another, so long as it works hurt, inconvenience, or damage to the complaining party. Restatement (Second) of Torts § 821B (1979). See, also, Alabama Power Co. v. Stringfellow, 228 Ala. 422, 153 So. 629 (1934).
“This does not mean, however, that the plaintiff is not required to prove against the defendant the elements of legal duty and causal relation between the conduct or activity complained of and the hurt, inconvenience, or damage sued for. That which works hurt to another, to satisfy the statutory definition of a nuisance, must comport with the classical tort concepts of duty and causation. See Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 110 So.2d 911 (1959) (holding that the statutory definition of nuisance is declaratory of the common law and does not supersede the common law as to the other conditions and circumstances constituting a nuisance under the common law). Thus, we must look to the particular facts of each case to determine whether the party charged with creating and maintaining a nuisance has engaged in a course of conduct, or has permitted to exist a set of circumstances, that, in its natural and foreseeable consequences, proximately caused the hurt, inconvenience, or damage complained about.”

Tipler v. McKenzie Tank Lines, 547 So.2d 438, 440-41 (Ala.1989) (emphasis added). The trial court determined that Antoine’s actions caused the ponding on the Oxmoor lots and, necessarily, concluded that Oxm-oor and HCI were not responsible for the ponding. Thus, the trial court did not err in failing to award damages to Antoine on her nuisance claim.

Antoine’s argument that the trial court erred in ordering her to “make corrections” to her property and in requiring her to allow water to flow over her property is based, in large part, on Antoine’s argument that the “common law rule” as opposed to the “civil law rule” governing surface water applies to the present case. Because we have determined that we cannot consider that argument on appeal, we cannot reverse the trial court’s judgment ordering that Antoine construct a drain way on her property based on that argument. Antoine, however, makes an additional argument in support of reversal of the trial court’s order that she construct a drain way on her property.

Antoine also argues that, even if she caused the ponding, the trial court could only award damages and was not permitted to award Oxmoor and HCI in-junctive relief. She relies on King v. Adams, 349 So.2d 611, 615 (Ala.Civ.App. 1977), in which this court reversed a trial court’s judgment ordering an upper landowner to reconstruct and maintain ponds on his property to prevent drainage of water onto the lower landowner’s property. This court based its conclusion that an injunction requiring the upper landowner to restore the status quo was not legally permissible in King on the right of the “upper landowner ... to interfere with the flow of surface water for the purpose of improving his or her property.” King, 349 So.2d at 615. As noted above, the trial court concluded that a natural drain way existed on Antoine’s property, i.e., that she was the lower landowner, and that she had altered the topography of her lot, so King is factually inapposite. In addition, we cannot agree that King stands for the proposition that an injunction requiring that the flow of surface water be restored is never a permissible remedy. In fact, our supreme court has affirmed a judgment requiring lower landowners to remove a portion of a wall constructed on their property in order to allow the flow of surface water across their property. Dekle v. Vann, 279 Ala. 153, 158, 182 So.2d 885, 889 (1966). We therefore affirm the trial court’s judgment insofar as it orders Antoine to create a drain way -across her property for surface water.

Finally, we consider Antoine’s argument that the trial court erred by ordering the parties to attend binding arbitration if Oxmoor and HCI would not agree to her proposal concerning the construction of the drain way. “ ‘ “ [Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ ” Central Reserve Life Ins. Co. v. Fox, 869 So.2d 1124, 1127 (Ala.2003) (quoting AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). No contract requiring Antoine to arbitrate exists. The trial court erred in requiring the parties to submit to binding arbitration.

However, as Oxmoor and HCI point out, under Rule 53, Ala. R. Civ. P., the trial' court is permitted to refer certain issues to a special master when those issues are particularly complicated or when other exceptional circumstances exist. See Ex parte Alabama State Pers. Bd., 54 So.3d 886, 892-93 (Ala.2010) (stating that “those matters to be tried without a jury are to be referred to a special master only upon finding of ‘some exceptional condition’ requiring such referral, unless a claim requires an accounting or a difficult computation of damages”). Because it is apparent that the trial court has recognized that it will not be able to discern whether any given plan for the ordered drain way would meet sound engineering principles or would serve the purpose for which it was ordered, we conclude that the trial court’s referral to binding arbitration was intended to serve the same purpose as a reference to a special master, who would possess the ability to discern the feasibility of proposed plans and also be able to aid the parties in designing an appropriate drain way. Accordingly, we reverse the trial court’s judgment insofar as it refers the parties to binding arbitration and remand the cause to the trial court for it to amend its judgment to refer the parties to a special master in accordance with Rule 53.

The Rule 60(b) Appeal

As noted above, Antoine filed a Rule 60(b) motion directed to the March 2011 judgment. She relies on Rule 60(b)(1), (2), (3) and (6) in her motion for relief from the judgment. Rule 60(b) reads, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the. judgment.”

In her motion, Antoine argued that she had newly discovered evidence and that her failure to present certain evidence at trial was due to mistake, inadvertence, or excusable neglect. Antoine presented evidence regarding the price paid for certain subdivision lots sold after trial to prove that Oxmoor’s lots had not depreciated in value. She also presented evidence, which she had also submitted with her post-judgment motion, indicating that the pond-ing in the area surrounding the Oxmoor lots was historic and not a recent phenomenon. Antoine also alleged that Oxmoor and HCI had committed intrinsic and extrinsic fraud when they claimed that a natural drain way existed through Lot 35 when the certified subdivision plat did not denote a drainage easement or natural drain way. She further challenged the topographic, maps admitted into evidence by Oxmoor and HCI because, she alleged, they were either not properly certified or had failed to contain allegedly required information.

Antoine later supplemented her Rule 60(b) motion, arguing that the trial court relied on the incorrect law in that it considered Dekle v. Vann, 284 Ala. 142, 223 So.2d 30 (1969), instead of the subdivision regulations that, according to Antoine, should govern surface-water rights within the subdivision. She also argued that Lot 35 was the upper lot and that Oxmoor and HCI had failed to adduce evidence supporting the trial court’s conclusion that Lot 35 was the lower lot and that she had raised its elevation. Further, Antoine argued that her evidence showed that the trees in the area are, in fact, trees that typically grow in swampy areas. This evidence, she contended, proved that the area was historically a swamp. Finally, she argued that, because the ponding was mostly contained to the Oxmoor lots, Oxm-oor should be responsible for correcting the condition of its lots to alleviate the nuisance and the trespass to her property caused by the encroachment of the water onto the back part of Lot 35.

Our review of a Rule 60(b) motion, in most circumstances, is limited. We review only the ruling on the motion, and we consider only whether the trial court abused its discretion in granting or denying the motion. Murphy v. Golden Poultry Co., 634 So.2d 1027, 1029 (Ala.Civ.App.1994). Antoine argues that our review of the trial court’s denial of her motion should be de novo. She relies on the principle that issues of law brought before a trial court in a Rule 60(b) motion are reviewed under a de novo standard, and she cites in support of her argument Nationwide Mutual Fire Insurance Co. v. Austin, 34 So.3d 1238, 1241-42 (Ala.2009).

Although in Austin our supreme court did utilize a de novo standard of review when reviewing the denial of a Rule 60(b)(5) motion arguing that the underlying judgment had been satisfied in part by payments made by the movant, Antoine reads Austin far too broadly. The trial court’s review of whether a judgment has been satisfied in part, much like the issue whether a judgment is void in a Rule 60(b)(4) motion, is purely legal. Nothing in the issue addressed in Austin required “ ‘a discretionary appraisal or weighing by the [trial] court of the facts of a particular case.’ ” Austin, 34 So.3d at 1242 (quoting In re Marriage of Barnes, 251 Mont. 334, 336, 825 P.2d 201, 203 (1992)). However, in the present case, the arguments in Antoine’s Rule 60(b) motion concern whether she failed to present evidence due to mistake, inadvertence, or excusable neglect; whether she has newly discovered evidence to present; whether certain maps in evidence were properly certified; and whether Oxmoor and HCI committed fraud by presenting evidence indicating that a natural drain way crossed Lot 35. Those issues, unlike determining whether payments partially satisfied a judgment, do not present pure questions of law. In addition, although Antoine argued in her motion that the trial court applied the wrong law, an argument that the trial court misapprehended the law or misapplied it to the facts is not encompassed in any ground for relief under Rule 60(b). City of Birmingham v. City of Fairfield, 396 So.2d 692, 695-96 (Ala.1981); Rhodes v. Fulmer, 12 So.3d 1239, 1244 (Ala.Civ. App.2009) (“[A] charge[ ] that the circuit court made an error of law in its judgment ... is the type of contention that must be raised either in a timely Rule 59(e) motion or in a timely appeal from the judgment.”). Accordingly, we will review the trial court’s denial of Antoine’s Rule 60(b) motion under the abuse-of-discretion standard.

Antoine argues first that “any evidence which was available at the time of trial or within 30 days after the judgment but was [not] presented at that time was due to mistake, inadvertence, or excusable neglect,” which, she contends, entitles her to relief under Rule 60(b)(1). She cites no authority for the proposition that the failure of a pro se litigant to present evidence at trial may form a basis for relief from a judgment under Rule 60(b). The fact that Antoine appeared pro se at trial and therefore failed to present evidence that was available to her at the time of trial does not give rise to a basis for relief from the judgment, and the trial court did not abuse its 'discretion in denying Antoine’s motion insofar as it was based on Rule 60(b)(1). See Ex parte Branson Mach., LLC, 78 So.3d 950, 955 (Ala.2011) (holding that the fact that a pro se litigant had failed to file a letter intended to serve as an answer was not a basis for relief under Rule 60(b)(1)); Ex parte Spriggs Enters., 879 So.2d 587, 591-92 (Ala.Civ.App.2003) (holding that failure of pro se litigant to apprise the court before entry of judgment that she had previously responded to discovery requests was not a sufficient basis for relief under Rule 60(b)(6) when pro se litigant had not apprised the court of that fact when opposing counsel moved to compel responses to discovery or when the trial court dismissed the action as a discovery sanction).

According to Antoine, she was also entitled to relief from the March 2011 judgment on the basis of newly discovered evidence. She presented the following evidence to the trial court in support of her right to relief from the March 2011 judgment under Rule 60(b)(2): the subdivision plat, deeds to neighboring property sold in January 2011 and June 2011, a document entitled the “Tree Stand Description for Swamp Area Report” (“the Tree Report”) created on March 30, 2011, and the Jefferson County Tax Assessor Parcel Viewer for Oxmoor (“the Parcel Viewer”) created after tornadoes struck the area in April 2011. Antoine admits that she mentioned the subdivision plat in her testimony, and she presents no argument that the plat, which clearly existed at the time of trial, could not have been presented as evidence at trial. Moody v. State ex rel. Payne, 344 So.2d 160, 163 (Ala.1977) (“[F]or a litigant to obtain a new trial on the ground of newly discovered evidence, it must appear that his reasonable diligence before trial would not have revealed this evidence which he failed to discover.”). Furthermore, the deeds, the Tree Report, and the Parcel Viewer admittedly came into existence after the trial, and they are therefore “new” and not “newly discovered” evidence; as such, they do not entitle Antoine to relief under Rule 60(b)(2). Moody, 344 So.2d at 163 (“There can be no Rule 60(b)(2) relief for evidence which has come into existence after the trial is over simply because such a procedure would allow all trials perpetual life. ‘Newly discovered evidence’ means evidence in existence at the time of trial of which the movant was unaware.”). The trial court therefore properly denied Antoine’s motion for relief from judgment on the ground of newly discovered evidence.

Antoine next argues that the subdivision plat, which we have determined was not newly discovered evidence, fails to indicate that a drainage easement or natural drain way exists on Lot 35. She contends that the subdivision plat is required by law to note drainage easements and “any portion of the land of the proposed subdivision ... subject to inundation by storm sewers or overflow or ponding of local storm water.” According to Antoine, the failure of the subdivision plat to contain the allegedly required notations supports the conclusion that Oxmoor and HCI committed fraud when they presented testimony and evidence that a natural drain way existed on Lot 35 before Antoine leveled the lot to build her house. Even if the subdivision plat failed to properly note the drain way on Antoine’s property, the trial court properly denied Antoine relief from the March 2011 judgment because the trial court was free to decline to rely on the subdivision plat because the plat was not newly discovered evidence. Bon Harbor, LLC v. United Bank, 53 So.3d 82, 94 (Ala.2010) (stating that trial court did not err in declining to consider a motion based on alleged newly discovered evidence when trial court could have determined that the evidence was not newly discovered and therefore should not be considered). Without the subdivision plat as evidence, Antoine had nothing to support her argument that Oxmoor and HCI had presented fraudulent testimony and evidence concerning the drain way. Accordingly, the trial court did not abuse its discretion in denying Antoine’s Rule 60(b) motion insofar as it was based on this ground.

Finally, Antoine argued in her Rule 60(b) motion that the topographic maps entered into evidence by Oxmoor and HCI failed to comply in several respects with the Standards of Practice for Surveying in the State of Alabama (“the surveying standards”). Based on this allegation, Antoine argues that Oxmoor and HCI presented fraudulent evidence to the court and that she is thus entitled to relief under Rule 60(b)(3).

“One who contends that an adverse party has obtained a verdict through fraud, misrepresentation, or other misconduct (Rule 60(b)(8)) must prove by ‘clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case. [Citation omitted.] The resolution of these two issues is within the trial court’s discretion, and on review, our only inquiry is whether the trial court abused its discretion.’ ”

Pacifico v. Jackson, 562 So.2d 174, 179 (Ala.1990) (quoting Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.1979)). The Pacifico court relied on the reasoning for requiring clear and convincing evidence in such situations expressed by the United States Supreme Court:

“ ‘That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are after-wards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.’ ”

United States v. Throckmorton, 98 U.S. 61, 68-69, 25 L.Ed. 93 (1878); see also Pacifico, 562 So.2d at 179.

Assuming that the surveying standards apply to the topographic maps entered into evidence and that those maps violate the surveying standards, we are not convinced that the trial court abused its discretion in denying Antoine relief under Rule 60(b)(3). The trial court is given much discretion in determining whether a party has “engaged in fraud or other misconduct” such that relief under Rule 60(b)(3) is warranted. Pacifico, 562 So.2d at 179. The trial court must have concluded, and we cannot disagree, that Antoine did not clearly and convincingly prove that Oxmoor and HCI “engaged in fraud or other misconduct” by introducing the topographic maps into evidence. Thus, we cannot conclude that the trial court erred in denying Antoine’s Rule 60(b)(3) motion insofar as it was based on this ground.

Conclusion

We have determined that the trial court erred in referring the parties to binding arbitration in the March 2011 judgment, and, therefore, that judgment is reversed and the cause is remanded with instructions that the trial court amend the March 2011 judgment to refer the parties to a special master under Rule 53. In all other respects, the March 2011 judgment is affirmed. The October 2011 judgment denying Antoine’s Rule 60(b) motion is also affirmed.

2100839 — AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

2110139 — AFFIRMED.

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

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

      . We note that HCI asserted no counterclaims against Antoine and Glenn. However, no party challenges this aspect of the trial court’s judgment.

       Antoine purported to seek postjudgment review on Glenn’s behalf, as well as on her own behalf; however, only Antoine signed the postjudgment motion. Because Antoine is not an attorney, she was not permitted to represent Glenn's interests in court or to file the postjudgment motion on his behalf. Beasley v. Poole, 63 So.3d 647, 649-50 (Ala.Civ.App.2010). Oxmoor and HCI moved to strike Antoine’s postjudgment motion insofar as Antoine purported to act on Glenn’s behalf, and the trial court properly struck the motion insofar as it was filed on Glenn’s behalf.

      . Oxmoor and HCI filed a cross-appeal, which they have since withdrawn.

      . Antoine later filed a suggestion of death in this court in the nuisance appeal. Based on statements made in the hearing on the Rule 60(b) motion, it appears that no estate was opened for Glenn. Because, according to the statements made at the Rule 60(b) hearing, Lot 35 was owned jointly with a right of survivorship, Antoine is now the sole owner of the property and thus is the only appellant in the nuisance appeal.

      . Johnson failed to appear or participate at trial. It has also failed to file a brief with this court.

      . At the conclusion of her argument that the trial court’s failure to address the claims against Johnson prevents the March 2011 judgment from being final, Antoine makes a one-paragraph argument that the trial court erred in not entering a judgment against Johnson for its failure to appear or defend at trial. Antoine cites no authority for this argument, and, therefore, we decline to address it. Rule 28, Ala. R.App. P.; White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) ("Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do hot, the arguments are waived.”).

      . Oxmoor and HCI, in their response to Antoine’s Rule 60(b) motion, did discuss, in general terms, the "common law rule” and the "civil law rule” regarding surface water. The hearing on the Rule 60(b) motion contains no reference to the rules governing surface water.

      . At the conclusion of her argument on her trespass claim, Antoine states that the trial court erred in not awarding her damages for injury to real property under Ala.Code 1975, § 6-5-210. Antoine makes no argument concerning the elements of a cause of action under § 6-5-210, and we therefore do not consider her “argument" further. Rule 28; White Sands Group, 998 So.2d at 1058.

      . We question whether topographic maps created by the United States Geological Survey or another federal agency would be required to meet the surveying standards used in Alabama for, among other things, boundary-line surveys. Because it is not necessary for us to decide whether the surveying standards are applicable to the topographic maps in evidence in order to resolve the issue on appeal, we will simply assume that they are applicable for purposes of this opinion.


text:
    Matthew WATERS and Vicky Waters v. PAUL ENTERPRISES, INC.
    2110683.
    Court of Civil Appeals of Alabama.
    Jan. 4, 2013.
    Certiorari Denied June 7, 2013
    Alabama Supreme Court 1120468.
    W. Bradford Kittrell of Taylor Martino, P.C., Mobile, for appellants.
    Clifford C. Brady of Brady Radcliff & Brown LLP, Mobile, for appellee.
   THOMAS, Judge.

Matthew Waters and Vicky Waters appeal from a summary judgment entered by the Mobile Circuit Court in favor of Paul Enterprises, Inc. (“Paul”), in the Waterses’ action against Paul seeking damages for injuries Matthew sustained as a result of Paul’s alleged negligent and wanton actions in maintaining its loading dock. We reverse and remand.

On September 11, 2008, Matthew was working as a truck driver for Ace Hardware. On that date he had delivered a shipment to Paul and had backed the delivery truck up to about four inches from Paul’s loading dock in order to unload the contents of the delivery truck. It is undisputed that it was Matthew’s first trip to Paul’s loading dock and that Matthew observed several Paul employees place two metal plates upon the ground to bridge the small gap between the loading dock and the delivery truck before he began to unload the contents of the delivery truck. It is also undisputed that Paul employees had been using the two metal plates to bridge the gap for several years because, the record reveals, the loading dock lever had not been operational since 2004. After watching the Paul employees place the two metal plates on the ground to bridge the gap, Matthew inquired about the usage of the metal plates and then proceeded to unload several loads of inventory from the delivery truck to the loading dock by using a “pallet jack.” However, on Matthew’s fourth or fifth trip across the metal plates he quickly changed the direction in which he was walking and the metal plates shifted and slipped out from underneath him, causing him to fall and sustain injuries. Matthew sought medical attention as the result of his injuries.

On August 19, 2009, the Waterses filed a complaint in the trial court averring that Paul and several fictitiously named parties had been negligent and wanton in maintaining Paul’s loading dock and by utilizing metal plates in lieu of maintaining a functional loading dock. The complaint also contained a loss-of-consortium claim on behalf of Vicky. On September 23, 2009, Paul answered the complaint and asserted numerous affirmative defenses. The parties conducted discovery.

On September 28, 2011, Paul filed a motion for a summary judgment. In its motion, Paul argued that the use of the metal plates to bridge the gap between the delivery truck and the loading dock was an open and obvious danger, which, it said, Matthew should have recognized in the exercise of reasonable care. It also argued that it had no superior knowledge that the metal plates could shift and, thus, that it could not have warned Matthew of such a risk. Paul attached excerpts from Matthew’s deposition to its motion for a summary judgment. On November 15, 2011, the Waterses filed a response in opposition to the summary-judgment motion. In their response, the Waterses argued that the usage of the metal plates may have been open but that there were genuine issues of material fact regarding whether the usage of the metal plates was an obvious danger. The Waterses attached the affidavit and deposition testimony of Matthew; the deposition testimony of Ralph Paul, Paul’s corporate representative; the affidavit and deposition testimony of Dr. James Dobbs, the Waterses’ expert witness; the deposition testimony of Dr. Robert Zarzour, Matthew’s treating physician; and the complaint as exhibits in support of their response.

On January 11, 2012, the trial court entered a summary judgment in favor of Paul on all the Waterses’ claims. Specifically, the trial court’s judgment states:

“[T]he Court is of the opinion that the metal plates as placed and observed by [Matthew] constituted an open and obvious condition on [Paul]’s property which [Matthew], in the exercise of reasonable care, should have recognized. Accordingly, for the reasons set forth in [Paul]’s Motion for Summary Judgment, the motion for summary judgment is hereby granted and the Court enters judgment in favor of [Paul] on all claims.”

On February 8, 2012, the Waterses filed a motion to alter, amend, or vacate the trial court’s judgment. On February 14, 2012, the trial court denied the Waterses’ postjudgment motion. The Waterses timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“We review a summary judgment de novo. American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala.2002).
“ We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the non-movant to present substantial evidence creating 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.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. [v. DPF Architects, P.C.], 792 So.2d [369] at 372 [ (Ala.2000) ] (citations omitted), quoted in American Liberty Ins. Co., 825 So.2d at 790.”

Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002).

On appeal, the Waterses argue that the trial court erred in entering a summary judgment in favor of Paul on their claims because, they contend, there were genuine issues of matérial fact regarding whether the usage of the metal plates was an open and obvious danger. Specifically, they highlight the fact that Dr. Dobbs’s affidavit indicates that Matthew could not have appreciated the danger posed by the metal plates and that Matthew’s affidavit indicated that he “only briefly” noticed the plates and that he “did not appreciate that the plates posed any danger.” In response, Paul argues that the trial court did not err in concluding as a matter of law that the usage of the metal plates was an open and obvious danger because, it says, whether a condition is open and obvious is evaluated under an objective standard and, thus, “the question is whether the danger should have been observed, not whether in fact it was consciously appreciated.” Jones Food Co. v. Shipman, 981 So.2d 355, 362 (Ala.2006). Moreover, it again argues that the evidence indicates that it lacked any superior knowledge of the danger that caused Matthew’s injuries.

In this case, Matthew was an invitee when he began using the metal plates and loading dock at Paul’s facility. See Lam-Son & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937) (finding that a delivery driver was an invitee at the time of the accident). The well established rule is that an invitor owes a duty to an invitee to keep its premises in a reasonably safe condition and to warn an invitee of any danger about which the invitor has a superior knowledge or that is not open and obvious. Id. Specifically, in Quillen v. Quillen, 388 So.2d 985, 989 (Ala.1980), our supreme court discussed the duty an invitor owes to an invitee as follows:

“In the definitive case of Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937), this Court discussed at length the duty owed by a landowner to an invitee. At 234 Ala. 63, 173 So. 391, the Court held:
“ ‘This court is firmly committed to the proposition that the occupant of premises is bound to use reasonable care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, expressed or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. Geis v. Tennessee Coal, Iron & R.R. Co., 143 Ala. 299, 39 So. 301 [(1905)].
“ ‘This rule ... includes (a) the duty to warn an invitee of danger, of which he knows, or ought to know, and of which the invitee is ignorant; and (b) the duty to use reasonable care to have the premises to which he is invited in a reasonably safe condition for such contemplated uses, and within the contemplated invitation.’

“Therefore, as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care. As stated by the Court in Lamson & Sessions Bolt Co., supra, at 234 Ala. 63, 173 So. 391:

“ Tn 45 C.J. § 244, p. 837, the rule is thus stated: “The duty to keep premises safe for invitees applies only to the defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.” ’

“Accord, McRee v. Woodward Iron Co., 279 Ala. 88, 182 So.2d 209 (1966); Claybrooke v. Bently, 260 Ala. 678, 72 So.2d 412 (1954). The entire basis of an invitor’s liability rests upon his superior knowledge of the danger which causes the invitee’s injuries. Gray v. Mobile Greyhound Park, Ltd., 370 So.2d 1384 (Ala.1979); Tice v. Tice, 361 So.2d 1051 (Ala.1978). Therefore, if that superior knowledge is lacking, as when the danger is obvious, the invitor cannot be held liable.”

This court in Sheikh v. Lakeshore Foundation, 64 So.3d 1055, 1059 (Ala.Civ.App.2010), indicated that under Alabama law the issue whether a condition is open and obvious is analyzed under an objective standard. “[T]he focus of our premises liability law is not on the care that may have been exercised by the invitee ..., but on relieving a premises owner of a legal liability where an invitee knew of the danger that caused the injury or should have observed that danger through the exercise of reasonable care.” Ex parte Industrial Distrib. Servs. Warehouse, Inc., 709 So.2d 16, 20-21 (Ala.1997).

However, our supreme court has also stated:

“ ‘A condition is “obvious” if the risk is apparent to, and of the type that would be recognized by, a reasonable person in the position of the invitee.’ Woodward [v. Health Care Auth. of Huntsville ], 727 So.2d [814,] 816 [(Ala.Civ.App.1998) ]. ‘A condition is “known” if the invitee is aware of the existence of the condition and appreciates the danger it involves.’ Id. ‘Questions of openness and obviousness of a defect or danger and of an [invitee’s] knowledge are generally not to be resolved on a motion for summary judgment.’ Harding v. Pierce Hardy Real Estate, 628 So.2d 461, 463 (Ala.1993). See also Woodward, supra. Additionally, ‘this Court has indicated that even though a defect is open and obvious, an injured invitee is not barred from recovery where the invitee, acting reasonably, did not appreciate the danger of the defect.’ Young v. La Quinta Inns, Inc., 682 So.2d 402, 404 (Ala.1996).”

Ex parte Kraatz, 775 So.2d 801, 803-04 (Ala.2000) (emphasis added).

In the present case, Paul presented evidence indicating that Matthew observed the Paul employees place two metal plates on the ground to bridge the gap between the delivery truck and the loading dock during' daylight hours, that Matthew inquired about the broken loading-dock lever and the usage of the metal plates, and that Matthew, walked across the metal plates several times during the process of unloading the delivery truck before the accident. Thus, Paul presented evidence demonstrating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law because the undisputed evidence indicated that the usage of the metal plates was an open and obvious danger that Matthew should have observed in the exercise of reasonable care under the standard set out in Quillen, 388 So.2d at 989. Accordingly, the burden shifted to the Waterses, the nonmovants, to present substantial evidence demonstrating that there was a genuine issue of material fact regarding Paul’s duty to Matthew. See Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).

In their response, the Waterses attached numerous exhibits. Specifically, they attached Matthew’s affidavit that states, in pertinent part:

“3. On [September 11, 2008], I had no knowledge about the loading or unloading system in place by [Paul]. When I arrived, I watched two workers put down metal plates but I did not know the precise weight, size or whether these[] metal plates were secured. I assumed that the metab plates would be secure or were safe based on the representations or actions of the workers there.
“4. I saw the plates only briefly and so did not appreciate that the plates posed any danger at the time. That is, from the time I opened the back door of my trailer and the moment it took the [Paul] workers to put the plates down and for me to see them do that, we then started unloading. It appeared that these workers had used these metal plates to bridge the gap between various trailers and the loading dock for a very long time.
“5. I assumed that these workers had used these plates for a while and that they were safe. I did not appreciate that these workers would put me in a dangerous situation, I also assumed that maybe these metal plates were somehow secure. At the time, I did not appreciate the dangerous situation this metal bridge posed for me to step or pivot on.”

Additionally, the Waterses attached Dr. Dobbs’s affidavit and deposition testimony, which indicated that, in his opinion as a professional engineer, Matthew could not have appreciated the risk and danger posed by the metal plates. Dr. Dobbs explained that his calculations had revealed that the metal plates at issue had a coefficient of friction of .33 and, thus, that they had a propensity to slide and shift when a certain type of horizontal force was applied to them, such as the force applied when Matthew abruptly changed direction. Dr. Dobbs noted that an average observer could not have appreciated the danger of the propensity of the metal plates to slide based on their coefficient of friction. Furthermore, Dr. Dobbs testified that it appeared that Paul had consistently used the metal plates as the means to bridge the gap between the delivery trucks and the loading dock without any incident, and, thus, he stated, neither Paul nor Matthew “had a reason to know that these [metal plates] could be hazardous.”

Finally, ■ the Waterses attached Ralph Paul’s .deposition testimony to their response. In his deposition, Ralph, Paul’s corporate representative, testified that Paul had been using the metal plates since 2004 and that the dock lever had not been operational throughout the time that Paul had occupied the premises. He further indicated that Paul did not have any superior knowledge of any danger associated with the usage of the metal plates at the time of Matthew’s injury.

Therefore, the Waterses presented evidence indicating that, although Matthew had observed the metal plates being placed on the ground, he did not appreciate any risk associated with the usage of the metal plates due to the Paul employees’ actions and representations on September 11, 2008. Further, they presented expert testimony via Dr. Dobbs’s affidavit and deposition indicating that Matthew could not have appreciated the risk and danger associated with the usage of the metal plates and that Paul itself was unaware of the danger associated with the usage of the metal plates. Accordingly, the evidence taken in the light most favorable to the Waterses indicated that Matthew, “acting reasonably, did not appreciate [and could not have appreciated] the danger of the defect” in this case — the usage of the metal plates. Ex parte Kraatz, 775 So.2d at 804. Thus, we conclude that the Waterses presented substantial evidence demonstrating that there was a genuine issue of material fact as to whether a danger that even Paul had not observed over the four-year period it had used the metal plates was an open and obvious danger. See Ex parte Kraatz, 775 So.2d at 804 (reversing this court’s affirmance of a summary judgment in favor of the invitor by concluding that the facts indicated that whether an unpainted speed bump was an open and obvious danger was a question for the trier of fact); and Howard v. Andy’s Store for Men, 757 So.2d 1208 (Ala.Civ.App.2000) (reversing a trial court’s summary judgment in favor of the invitor by concluding that whether the elevation of the sidewalk was an open and obvious condition was a question for the trier of fact).

Accordingly, because the Waterses presented substantial evidence indicating that Matthew did not appreciate the danger associated with the usage of the metal plates and because “the plaintiffs appreciation of the danger is, almost always, a question of fact for the determination of the [trier of fact],” F.W. Woolworth Co. v. Bradbury, 273 Ala. 392, 396, 140 So.2d 824, 827 (1962), we reverse the summary judgment in favor of Paul on the Waterses’ claims, and we remand the cause for further proceedings.

REVERSED AND REMANDED.

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

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

      . Paul is an Ace Hardware franchisee doing business in Mobile.