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    Steven Jeffery SMITH and Cyndi Irene Cooke v. Elizabeth SMITH. Elizabeth Smith v. Steven Jeffery Smith and Cyndi Irene Cooke.
    2120498.
    Court of Civil Appeals of Alabama.
    Dec. 13, 2013.

      William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for appellants/cross-appellees Steven Jeffery Smith and Cyndi Irene Cooke.
    Clinton H. Hyde, Evergreen, for appel-lee/cross-appellant Elizabeth Smith.
   THOMAS, Judge.

Steven Jeffery Smith and Cyndi Irene Cooke appeal from the portions of a judgment entered by the Conecuh Circuit Court (“the trial court”) in favor of Elizabeth Smith. Elizabeth cross-appeals from the trial court’s judgment.

I. Facts and Procedural History

The parties are the heirs of Billy Ernest Smith. Elizabeth married Billy on November 6, 1996; there were no children born of the marriage. Steven and Cyndi are Billy’s adult children from a previous marriage. The record shows that Billy and Elizabeth met while horseback riding and that Billy made a living training horses for other people. Billy and Elizabeth lived on property owned by Billy. Also located on Billy’s property was a barn and adjoining horse pens and pastureland on which Billy and Elizabeth kept their own horses.

Billy died in April 2009. His will (“the will”), among other things, named Steven as the executor of his estate (“the estate”). In paragraph two of the will, Billy devised “my dwelling house and the one acre of land on which same is situated to [Elizabeth], for and during the term of her natural life or until she remarries and/or moves away from said property.” Paragraph three of the will bequeathed to Elizabeth “her pick of all my horses, together with the tack for same,” and “our family car and all cash and bank accounts owned by me.” Finally, paragraph four of the will provided that Steven and Cyndi would receive the “rest and residue of my property, real, personal, and mixed.”

On May 25, 2010, Elizabeth filed a complaint in the trial court against Steven as the executor of the estate and against Steven and Cyndi individually. In her complaint, Elizabeth asserted, among other things, that Steven had prevented her from using the barn and horse pens. Elizabeth requested, in pertinent part, that the trial court enter a declaratory judgment interpreting the provisions of the will and determining the ownership of certain personal property; that the trial court issue a restraining order against Steven enjoining him from harassing her and from removing any assets of the estate; and that the trial court award her a resulting trust in 55 acres of real property (“the 55 acres”) that Billy had purchased during the marriage. The trial court entered a temporary restraining order (“TRO”) on May 27, 2010, enjoining Steven from any contact with Elizabeth and from removing any assets or moneys of the estate.

On June 10, 2010, Steven and Cyndi filed a motion to dismiss, in which they argued that the probate of the will was still pending in the Conecuh Probate Court (“the probate court”) and, therefore, that the trial court lacked jurisdiction over the administration of the estate. The trial court held a hearing that same day, after which it entered an order granting a preliminary injunction enjoining all parties from having contact with one another and ordering Elizabeth to file a motion to remove the probate of the estate from the probate court to the trial court. Steven and Cyndi filed an answer to the complaint on June 15, 2010. Elizabeth filed a motion to consolidate the estate-administration action that had been removed to the trial court with the action she had filed in the trial court; the trial court granted the motion for consolidation on June 24, 2010.

On January 12, 2011, Steven and Cyndi filed a counterclaim alleging actual and constructive conversion in which they asserted that Elizabeth had continued to use real and personal property that was not awarded to her in the will, such as the barn, the horse pens, Billy’s Dodge truck (“the Dodge truck”), and a four-horse trailer. After a continuance, a trial was held on July 16, 2012, at which the trial court heard evidence ore tenus. The trial court entered a judgment on October 4, 2012. The trial court’s judgment, in pertinent part, incorporated the parties’ agreement that Elizabeth would pick three of Billy’s horses as her own, concluded that the one acre devised to Elizabeth as a life estate included the barn and the horse pens, and awarded Elizabeth use of the Dodge truck and the horse trailer and “saddles and all items usually described as ‘tack’ by [Billy] and/or the parties.” The trial court also granted Elizabeth’s claims for a family allowance, a homestead allowance, and exempt property pursuant to §§ 48-8-110 through 43-8-112, Ala.Code 1975. However, the trial court’s judgment denied Elizabeth’s request for a resulting trust in the 55 acres and awarded the 55 acres to Steven and Cyndi pursuant to the residuary clause in the will. The trial court also denied Steven and Cyndi’s counterclaims.

Steven and Cyndi filed a motion to alter, amend, or vacate or for a new trial on October 25, 2012. On October 26, 2012, Elizabeth filed a motion for enforcement and to show cause, in which she alleged that Steven and Cyndi had failed to comply with the trial court’s judgment. Steven and Cyndi filed a motion to stay the execution of the judgment pending the resolution of their postjudgment motion on November 13, 2012; the trial court denied the motion to stay on the same day. Elizabeth filed a motion for contempt on November 28, 2012; she filed an amended motion for contempt on February 1, 2013. On February 15, 2013, Steven and Cyndi filed a motion for approval of a supersede-as bond. The trial court entered two orders on February 21, 2013; one granted Steven and Cyndi’s motion for a superse-deas bond and the other dismissed Elizabeth’s motion for contempt for failure to comply with Rule 70A(e)(l) and (2), Ala. R. Civ. P. Steven and Cyndi filed a notice of appeal with our supreme court on March 4, 2013. Elizabeth filed a notice of cross-appeal with our supreme court on March 19, 2013. The appeal and the cross-appeal were transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

II.Standard of Review

“When the resolution of an appeal turns on the construction of a will, we apply a de novo standard of review. See Harrison v. Morrow, 977 So.2d 457, 459 (Ala.2007).

“ ‘The law in Alabama regarding the interpretation of wills is well settled:
“ ‘ “ ‘[T]he intention of the [testator] is the law of the will, which the court should consider as a whole, giving effect to each provision where it is possible to do so; it is the court’s duty to carry out the [testator]’s intention where that intent can be ascertained. To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern. Galin v. Johnson, 457 So.2d 359 (Ala.1984). Where a will contains ambiguous or doubtful expressions, it is the duty of the court to determine what the testator or testatrix intended. Brittain v. Ingram,, 282 Ala. 158, 209 So.2d 653 (1968).’ ”
‘Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala.2007). “A document is unambiguous if only .one reasonable meaning emerges.” Kershaw v. Kershaw, 848 So.2d [942] at 951 [ (Ala.2002) ].’
“Scholl v. Stacy, 981 So.2d 1116, 1120 (Ala.2007).”

McKnight v. Way, 58 So.3d 810, 815 (Ala.Civ.App.2010).

III.Issues

In their brief on appeal, Steven and Cyndi argue that the trial court disregarded the plain language of the will by awarding Elizabeth a life estate in the property underlying the horse pens; that the trial court erred by drawing the boundaries of the one acre devised to Elizabeth as a life estate to include the barn; that the trial court misconstrued Billy’s intent by awarding Elizabeth the tractor and its implements, the Dodge truck and the horse trailer, and Billy’s tools of his trade; and that the trial court erred by awarding Elizabeth all the remaining personal property to satisfy her family allowance and personal exemptions. In her cross-appeal, Elizabeth argues that the trial court erred by failing to impose a resulting trust on the 55 acres.

IV.The House and the One Acre

Taking the issues out of turn, we first address whether the trial court erred by construing the boundaries of the one acre that Billy left to Elizabeth along with the house to include the barn. The second paragraph of the will states:

“I will and devise my dwelling house and the one acre of land on which same is situated to my beloved wife, Elizabeth Ann Smith, for and during the term of her natural life or until she remarries and/or moves away from said property.”

According to Steven and Cyndi, the absence of any reference to the barn in the above paragraph indicates that Billy did not intend for the one acre to include the barn. They correctly cite the legal principle that

“[n]o presumptions or rules of construction can serve to rewrite a will at variance with its clear and unambiguous terms, whatever extraneous fact may have led the testator to make the will he did make. The sanctity of wills, safeguarded by law, would be weakened, if not destroyed, by thus disregarding the plain terms of the will. City Bank & Trust Co. v. McCaa et al., 213 Ala. 579, 105 So. 669 [ (1925) ]; Meglemry et al. v. Meglemry, 222 Ala. 229, 131 So. 906 [ (1931) ]; Spencer v. Title Guarantee Loan & Trust Co. et al., 222 Ala. 485, 132 So. 730; 69 C.J. § 1110, § 1148, Notes 98 and 99 [ (1931) ].”

Baker v. Hendricks, 240 Ala. 630, 632, 200 So. 615, 617 (1941).

We agree that it is not within the purview of a court to rewrite unambiguous terms of a will. However, in the present case, the language of the above paragraph from the will simply states “one acre of land.” Given that the will did not include a metes and bounds, or any other, description of the one acre, we must determine whether the trial court acted within its discretion by fashioning the acre to include the barn within its boundaries.

Steven and Cyndi argue that it is clear from the will that Billy intended for the one acre to be shaped as a square and that the trial court misconstrued Billy’s intent when it fashioned an odd-shaped parcel so that boundaries of the one acre would in-elude the barn. They cite Daniels v. Williams, 177 Ala. 140,144, 58 So. 419, 421 (1912), for the principle that “[a] conveyance of a definite quantity of land in or off of a specified corner of a designated tract is[,] under a well-settled rule of construction, the grant of a corner quadrangle, of equal sides, extending to that corner.” In Daniels, a dispute arose between adjacent property owners regarding whether one owner’s deed accurately described that owner’s property boundaries. 177 Ala. at 142, 58 So. at 420. The deed in question contained the following description: “9 acres in S.W. corner of S.E. 1/4 of S.W. 1/4 of section 1, Tp. 8 north, R. 4 west, the same nine acres described in my deed.” 177 Ala. at 143, 58 So. at 420. Applying the above rule of construction, our supreme court determined that the conveyance dictated a square parcel. 177 Ala. at 144, 58 So. at 421.

Steven and Cyndi’s reliance on Daniels is misguided. The rule of construction cited in Daniels is not applicable to the present action because there was no evidence introduced at the trial that the will provided a starting point for the determination of the boundary of the one-acre parcel. In its judgment, in which it construed the boundaries of the one acre to include the barn, the trial court stated

“that the house and the barn can be included in a legal description for one acre parameter and the barn is hereby determined to be within the one acre parameter described in the Last Will and Testament of Billy Ernest Smith and [Elizabeth] is entitled to a life estate as provided in the Last Will and Testament of Billy Ernest Smith.”

As stated above, the will did not include a description of the one acre or any other type of instruction for drawing the boundaries of the one acre. On the other hand, the trial court heard ample evidence indi-eating that Billy would have intended for Elizabeth to retain use of the barn for the horses and tack that she was bequeathed in the will. Based on the foregoing, we cannot conclude that the trial court erred to revei'sal by establishing the boundaries of the one acre of Elizabeth’s life estate to include the barn.

V The Horse Pens

We next address the argument that the trial court disregarded the plain language of the will by including the horse pens as “appurtenances” to the house and one acre devised to Elizabeth in the will. The trial court stated in its judgment that

“as stated above [Elizabeth’s] house as devised in the Last Will and Testament includes the barn that is adjacent to and appurtenant to the house. The ‘dwelling house’ as devised in the Last Will and Testament of Billy Ernest Smith shall also include the horse pens where [Elizabeth] is currently keeping her horses. This order is made to further comply with the intentions of [Billy] in that [Billy] devised [Elizabeth] horses and intended for her to have a place to maintain and keep them.”

In the section above, we determined that, because the will did not describe the boundaries of the one acre devised to Elizabeth, the trial court did not err by establishing boundaries that included the barn, even though this resulted in an odd-shaped parcel, based upon parol evidence indicating that Billy had intended for Elizabeth to have use of the barn. We cannot, however, reach the same conclusion regarding the horse pens.

In DeMouy v. Jepson, 255 Ala. 337, 341, 51 So.2d 506, 510 (1951), our supreme court concluded that a devise of “my home” included the curtilage of the property. However, DeMouy is distinguishable from the case at bar. The DeMouy court found the devise of “my home” to be “manifestly ambiguous as to exactly what area of land was intended to go with it,” 255 Ala. at 341, 51 So.2d at 510, and, therefore, parol evidence was necessary to determine the testator’s intent.

In the present case, however, Billy specifically devised Elizabeth his dwelling house and the one acre on which it sat. Although we have determined that the trial court acted within its discretion in fashioning the boundaries of the one acre, we cannot conclude that the trial court did not exceed its discretion by awarding Elizabeth more property than devised in the will. “ “When the language of a will is clear and unambiguous, the rules of construction cannot be employed to rewrite that will and put it at variance with the meaning of the language used by the testator.’ Windham v. Henderson, 658 So.2d 431, 434 (Ala.1995).” Harrison v. Morrow, 977 So.2d 457, 459 (Ala.2007). Therefore, we must reverse that portion of the trial court’s judgment that awarded Elizabeth the horse pens, because they lie outside the one-acre parcel awarded to her in the will.

VI. Personal Property

Steven and Cyndi next argue that the trial court erred when it awarded Elizabeth various items of Billy’s personal property. At trial, Elizabeth introduced as an exhibit itemized lists of the personal property remaining in the house, the barn, and the surrounding property. The lists denoted the personal property owned by her, by Billy, and by them both jointly. (The parties refer to this list as “Exhibit 11,” as will we hereinafter.) The trial court incorporated Exhibit 11 into its final judgment.

Our supreme court explained in Whited v. Holmes, 816 So.2d 20, 23-24 (Ala.2001), that caselaw and statutes concerning property division in divorce proceedings “do not govern the distribution of property in an estate.” In their briefs on appeal, the parties cite cases for general propositions of law or cases that are simply not applicable to this appeal. Although it is not our responsibility to perform a party’s research, our own research has indicated a dearth of caselaw directly on point regarding the distribution of personal property in an estate.

A. The Dodge Truck

The undisputed testimony at trial revealed that Billy and Elizabeth owned three vehicles at the time of Billy’s death: the Dodge truck titled solely in Billy’s name, a Ford F150 truck (“the Ford truck”) titled solely in Elizabeth’s name, and an Oldsmobile Cutlass automobile (“the Oldsmobile”). The parties agree that the Oldsmobile was considered by Billy and Elizabeth to be “the family car.” However, testimony at the trial revealed that the Oldsmobile was sold after Billy’s death and that the proceeds of the sale were used to pay the costs to probate the will. In its judgment, the trial court found that

“[a]n additional provision was made in [the] will by Billy Ernest Smith for [Elizabeth] to receive and get ‘our family car.’ The Testator clearly intended for [Elizabeth] to receive an automobile from his estate and the Dodge Truck is the only vehicle in his estate after the sale by [Steven] of the [Oldsmobile].”

Elizabeth argues in her brief that Billy clearly intended for her to receive a vehicle from his estate and that, because the Oldsmobile was sold to pay the probate costs, the Dodge truck is the only remaining vehicle in the estate to satisfy this bequest. We agree with Elizabeth that the Ford truck, which was titled only in her name, did not become part of the estate.

“Section 43-8-76 of the Code of Alabama mandates that unless the testator indicates otherwise, the assets of the estate are to be charged with the payment of estate debts, or abated, in the following order: 1) property not disposed of by the will; 2) residuary devises; 3) general devises; and 4) specific devises. Within each classification, abatement is to be in proportion to the value of the property each of the beneficiaries would have received had full distribution of the estate in accordance with the will been possible.
“Particularly pertinent to this case is subsection (c) of § 43-8-76, Ala.Code (1975), which provides as follows:
“ ‘If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.’ ”

Stone v. Curry, 512 So.2d 66, 68 (Ala.1987).

“ ‘The Alabama Legislature has established that “[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions.” § 43-8-222, Ala.Code 1975. “In Alabama the law is well settled that ‘the intention of the testator is always the polestar in the construction of wills, and that the cardinal rule is to give that intention effect if it is not prohibited by law.’ ” Hansel v. Head, 706 So.2d 1142, 1144 (Ala.1997), quoting deGraaf v. Owen, 598 So.2d 892, 895 (Ala.1992).’ ”

Beasley v. Wells, 55 So.3d 1179, 1184 (Ala.2010) (quoting Cottingham, v. McKee, 821 So.2d 169,171-72 (Ala.2001)).

It is clear from the will that Billy intended for Elizabeth to receive a vehicle from the estate. It is undisputed that the Oldsmobile was sold after Billy’s death and that the proceeds from that sale were used to pay the costs of probating the will. After the sale of the Oldsmobile, the Dodge truck was the only remaining vehicle in the estate. Therefore, based on the doctrine of abatement, we affirm the portion of the trial court’s judgment awarding Elizabeth the Dodge truck.

B. The Four-Horse Trailer

In its judgment, the trial court awarded Elizabeth the “four-horse trailer ... and all items usually described as ‘tack’ by [Billy] and/or the parties.” We conclude that the portion of the trial court’s judgment awarding Elizabeth the four-horse trailer must be reversed. Evidence presented at trial showed that the four-horse trailer was titled in Billy’s name only; therefore, it became part of his estate at his death.

Furthermore, we disagree that the four-horse trailer may be properly described as “tack” and, thus, awarded to Elizabeth pursuant to paragraph three of the will. “ ‘The rule, of course, is that the intention of the testator governs the construction of a will, but if by its terms it is unambiguous there is no room for construction and it will be taken as written.’ ” Beasley, 55 So.3d at 1185 (quoting Fuller v. Nazal, 259 Ala. 598, 603, 67 So.2d 806, 810 (1953)). “ ‘[W]ords employed in a will are to be taken in their primary or ordinary sense and use, unless a different meaning is indicated by the context and circumstances of the case....’” Harrison v. Morrow, 977 So.2d at 459-60 (quoting Wiley v. Murphree, 228 Ala. 64, 68,151 So. 869, 872 (1933)). Merriam-Webster’s Collegiate Dictionary defines tack as “stable gear” and “articles of harness (as saddle and bridle) for use on a saddle horse.” Merriam-Webster’s Collegiate Dictionary 1271 (11th ed.2003) (emphasis added). We are unpersuaded that the word “tack” is ambiguous as used in the will, and a trial court may not rewrite unambiguous terms of a will. See Baker, supra. Clearly, based upon the standard definition of “tack,” a trailer is not considered tack. We therefore conclude that the trial court exceeded its discretion when it classified the four-horse trailer as tack and awarded it to Elizabeth.

C. The Remaining Personal Property

As previously noted, the trial court adopted Exhibit 11 indicating ownership of the personal property owned by Elizabeth, by Billy, and jointly owned by them together. Steven and Cyndi argue that the trial court erroneously awarded Elizabeth all the jointly owned personal property— specifically a tractor and its implements, a 16-foot flatbed trailer, all saddles, a gravity-flow trailer, an oat crimper, and a four-wheeler all-terrain vehicle (“the four-wheeler”). It appears that Steven and Cyndi have misinterpreted the trial court’s judgment regarding most of the jointly owned property. The trial court’s judgment states that

“the personal property purchased by [Billy] and [Elizabeth] during the marriage is deemed marital property and [Elizabeth] ha[d] a half ownership interest in this property at the time of [Billy’s] death. The non-marital property shall be divided according to [Elizabeth’s] Exhibit 11.”

(Emphasis added.) Although most of the disputed items fall under the jointly-owned-property category, some of these items require individual analysis.

1. The Four-Wheeler

At trial, Gerald Trawick, Elizabeth’s brother, testified that he had sold the four-wheeler to Billy and Elizabeth. He further testified that the four-wheeler was bought as a gift for Elizabeth, and, he stated, Elizabeth had signed the check that he received as payment for the four-wheeler. Elizabeth also testified that the four-wheeler was hers and that she had continued to maintain it since Billy’s death. In contrast, Steven testified that the four-wheeler belonged to Billy. It was up to the trial court, as the finder of fact, to determine the ownership of the four-wheeler. Although the trial court’s judgment does not specifically reference the four-wheeler, the four-wheeler was included in the list of Elizabeth’s property in Exhibit 11, which was incorporated into the trial court’s judgment. We affirm that part of the trial court’s judgment insofar as the trial court awarded Elizabeth the four-wheeler by virtue of incorporating Exhibit 11 into its judgment.

2. The Saddles

The trial court’s judgment awarded Elizabeth all “saddles and all items usually described as ‘tack’ by [Billy] and/or the parties. This shall include all items located in the tack room in the barn.” As we have previously noted, we are unpersuaded by the argument that the use of the word “tack” in the will refers to anything other than what is typically defined as “tack.” The will stated that Elizabeth was to have her pick of Billy’s horses “together with the tack for [the] same.” By agreement of the parties, which was incorporated into the trial court’s judgment, Elizabeth chose three horses. The will did not limit Elizabeth’s choice of saddles; therefore, Elizabeth was entitled to choose three saddles and the remaining necessary tack as defined above.

Elizabeth had included in the jointly-owned-property list included in Exhibit 11 “all saddles (bought together),” except for two saddles that she owned before the marriage; however, she only listed one saddle in the list of property owned by her individually. We agree that Elizabeth should be awarded the saddles that she owned before the marriage. We also agree that Elizabeth would have a one-half ownership interest in any saddles bought during the marriage with funds from the joint-checking account. However, we are unable to ascertain from Exhibit 11 how many saddles will remain in Billy’s estate after Elizabeth assumes ownership of the three saddles that she is entitled to choose. We therefore instruct the trial court to determine on remand which saddles were owned by Elizabeth before the marriage and which saddles, if any, remain in Billy’s estate subsequent to the fulfillment of the award of three saddles to Elizabeth.

3.The Tractor and its Implements, the 16-Foot Flatbed Trailer, the Gravity-Flow Trailer, and the Oat Crim-per

The trial court found that these items were purchased during the marriage and were, therefore, marital property. Having reviewed the record on appeal, we find no error in this portion of the trial court’s judgment. Thus, we affirm the portion of the trial court’s judgment awarding Elizabeth a one-half interest in these items.

VII. Family Allowance and Exempt Property

The trial court granted Elizabeth’s claims for a homestead allowance, exempt property, and a family allowance pursuant to §§ 43-8-110 through -112, Ala.Code 1975, respectively, and further stated that “[t]he claims are to be satisfied from remaining personal property in the Estate of Billy Ernest Smith.”

Section 43-8-112, Ala.Code 1975, which establishes the family allowance, provides, in pertinent part, that a surviving spouse and minor children who were dependent upon the deceased “are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of [probate] administration....” Steven and Cyndi argue that the trial court erred by satisfying Elizabeth’s family-allowance claim from Billy’s personal property. Specifically, they argue that the statute limits a family allowance solely to money and prohibits the use of real or personal property to satisfy this claim. Other than the statute itself, Steven and Cyndi have not provided citation to any authority to support their argument.

We agree with Elizabeth that applying the interpretation set forth by Steven and Cyndi could create a situation in which the estate would have to liquidate assets in order to satisfy the family allowance and that such assets would likely be jointly owned by the spouse claiming the family allowance. Furthermore, in Browning v. Carpenter, 596 So.2d 906 (Ala.1992), our supreme court affirmed the judgment of a trial court that awarded the surviving spouse the deceased spouse’s interest in real property in order to satisfy the surviving spouse’s homestead allowance and family allowance. Accordingly, we do not find that the trial court erred to reversal insofar as it fulfilled Elizabeth’s family-allowance claim from Billy’s personal property.

Steven and Cyndi also seem to argue that there is no evidence supporting Elizabeth’s award of a family allowance. The Commentary to § 43-8-112 states that, “[i]n determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses until the estate can be administered and assets distributed” and that “need is relative to the circumstances.... ” The undisputed testimony at trial, including that of Steven, was that Elizabeth depended on Billy for support and did not earn any separate income of her own.

“Under the ore tenus rule, we presume that the trial court’s judgment based on findings of fact is correct, and we will reverse only if it is found to be plainly and palpably wrong, after a consideration of all the evidence and after making all the inferences that can be logically made from the evidence. Adams v. Boan, 559 So.2d 1084 (Ala.1990).”

Browning, 596 So.2d at 908 (affirming the trial court’s award of a family allowance to the surviving spouse).

Lastly, Steven and Cyndi argue that the trial court’s award of exempt property to Elizabeth was also erroneous. Section 43-8-111, Ala.Code 1975, provides, in pertinent part, that “the surviving spouse is entitled to receive, in addition to the homestead allowance, property of a value not exceeding $3,500.00 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances and personal effects.” Steven and Cyndi specifically argue that the trial court failed to ascertain the value of Billy’s remaining personal property that it awarded to Elizabeth,' in part to fulfill her claim for exempt property. We agree that the award of Billy’s remaining personal property to fulfill the homestead allowance, exempt-property award, and family allowance is overly broad. Section 43-8-111 limits the exempt-property award to $3,500, and § 43-8-112 requires a calculation to determine the appropriate family-allowance amount. Thus, we reverse this portion of the trial court’s judgment and instruct the trial court to ascertain on remand the value of Billy’s remaining personal property. We further instruct the trial court to establish the appropriate, individual amounts that Elizabeth is to receive for the family allowance and exempt property.

VIII. Elizabeth’s Cross-Appeal

Finally, we address Elizabeth’s cross-appeal asserting that the trial court erred by failing to award her a resulting trust in the 55 acres. Resulting trusts are divided mainly into two categories: (1) those arising on a failure of an express trust and (2) those arising as the result of a conveyance of property to one person on a consideration from another, commonly referred to as a purchase-money resulting trust. This case involves the latter — an alleged purchase-money resulting trust.

“As applicable to purchase-money resulting trusts, the law in Alabama states that such a trust arises only where one has purchased property with the funds of another and has taken title in himself. Smith v. Davis, 352 So.2d 451 (Ala.Civ.App.1977). A resulting trust arises where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but when the intent appears or is inferred or assumed from the terms of the disposition or from the facts and circumstances that the beneficial interest was not to go with the legal title. Birmingham & Atlantic R.R. v. Louisville & Nashville R.R., 152 Ala. 422, 44 So. 679 (1907). An essential element for a declaration of a resulting trust is the payment by one person and conveyance to another. Lewis v. Mohr, 97 Ala. 366, 11 So. 765 (1892). Another indispensable element of a resulting trust is that the purchase money be furnished at or before the purchase. A resulting trust arises at the time title passes; the basic principle is the investment of one’s funds, which were not intended as a gift, in the purchase of the property and the taking of title to the property in another. See Talley v. Talley, 248 Ala. 84, 26 So.2d 586 (1946).”

McClellan v. Pennington, 895 So.2d 892, 896 (Ala.2004).

“ ‘ “This resulting trust depends for its existence on the actual intent of the creator, expressed in acts other than writing or the spoken word. The conduct of the payor with reference to the price and deed lead the court to infer an intent to have a trust for himself. The theory of enforcement is that of carrying out the intent of the settlor, just as truly as if he had reduced his trust to writing and inserted it in the deed. Resulting trusts are ‘intent enforcing’ just as much as are the usual express trusts. They bear little or no relationship to constructive trusts, which do not arise out of intent but depend for their existence on the wrongful conduct of the defendant which induces a court to adjudge him a trustee.”
“ ‘[George G.] Bogert [and George T. Bogert, The Law of Trusts and Trustees § 454] at 249 [ (rev.2d ed.1991).]’
“Woodard v. Funderburk, 846 So.2d [363,] 368 [ (Ala.Civ.App.2002) ].”

Smith v. Smith, 6 So.3d 534, 540-41 (Ala.Civ.App.2008).

It is undisputed that Elizabeth’s name does not appear on the deed or on the mortgage documents to the 55 acres. Further, there was testimony at trial tending to show that Billy had not intended for Elizabeth to receive an interest in the 55 acres. In Mayo v. Gortney, 468 So.2d 147, 148 (Ala.1985), a daughter and mother opened a joint-checking account into which the daughter deposited funds she had received from the proceeds from two life-insurance policies. The mother, on her own accord, used the money from the joint account to purchase real property. Id. The mother then informed the daughter of her intention to sell the property but to not share the profits with the daughter. Id. at 149. Our supreme court held that, because the consideration for the property came from the daughter, it was proper to impose a resulting trust on the property in favor of the daughter. Id. at 150-51. We find it important to note that the Mayo court’s decision appeared to rely on the fact the consideration for the property was traced back to the daughter’s individual funds, not because the daughter and the mother shared a joint-checking account. Id. We, therefore, cannot conclude that the trial court erred to reversal by denying Elizabeth’s claim for a resulting trust in the 55 acres.

IX. Conclusion

Based upon the foregoing, we affirm the trial court’s judgment insofar as it established the boundaries of the one acre to include the barn, awarded Elizabeth the Dodge truck in satisfaction of the devise of “our family car,” awarded Elizabeth a one-half interest in the jointly owned marital property, and denied Elizabeth’s claim for a resulting trust in the 55 acres. We reverse the judgment of the trial court insofar as it awarded Elizabeth the horse pens and the four-horse trailer. We further reverse the trial court’s award of “saddles and items usually described as tack” and remand the cause for the trial court to determine which saddles, and other items reasonably considered to be tack, remain in the estate after Elizabeth chooses the saddles and tack to which she is entitled pursuant to the agreement of the parties. We further revei'se the trial court’s award of Billy’s remaining personal property to satisfy Elizabeth’s claims for family allowance and exempt property and remand the cause for the trial court to determine the value of Billy’s personal property and to establish the specific amount that Elizabeth is to receive for the family allowance and exempt property.

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

CROSS-APPEAL — AFFIRMED.

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

      . Steven and Cyndi's postjudgment motion was denied by operation of law on January 23, 2013, pursuant to Rule 59.1, Ala. R. Civ. P.; therefore, their notice of appeal filed on March 4, 2013, was timely.

      . The record does not indicate whether the title to the Oldsmobile was in Billy's name only or in both Elizabeth and Billy’s name.

      . Although we also determine that the trial court improperly classified the Dodge truck as tack, that does not change our conclusion that Elizabeth was entitled to the Dodge truck in satisfaction of the specific devise of "our family car.”


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Fred POULIN v. Howard J. NORWOOD, Jr.
    2120041.
    Court of Civil Appeals of Alabama.
    Dec. 31, 2013.

      Andrew Laplante, Bessemer, for appellant.
    Robert L. Austin, Hoover, for appellee.
   DONALDSON, Judge.

Fred Poulin appeals from a final judgment of the Jefferson Circuit Court assessing damages against him in favor of Howard J. Norwood, Jr. (“Norwood”), in the amount of $2,040 for unlawful possession of real property and ruling against him on his counterclaim for damages against Nor-wood. We affirm the judgment in favor of Norwood on Poulin’s counterclaim, reverse the judgment in favor of Norwood on his claim against Poulin, and remand the cause with instructions.

Facts and Procedural History

The parties stipulated to the facts of the case; the following facts are pertinent. Brenda J. Snider, Poulin’s wife, died on or about May 11, 2010. Her will was admitted to probate. In the will, she named her son Dudley Hunley as the personal representative of her estate and as the beneficiary of most of her assets. At the time of her death, Snider owned certain real property (“the property”) located in Birmingham. The property was titled in her name alone. Before Snider’s death, Snider and Poulin had resided on the property together. Although Poulin was not a record title holder of the property, it is undisputed that he had a right to remata in possession of the property as Snider’s surviving spouse, pursuant to § 43-8-114, Ala.Code 1975:

“The spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and the plantation connected therewith until homestead is assigned, free from the payment of rent. The obligation to pay rent, if any, on the dwelling shall be an obligation of the decedent’s estate.”

It is undisputed that the property falls within the purview of this section.

Hunley, as the personal representative of Snider’s estate, executed a real-estate contract on or about November 24, 2010, agreeing to sell the property to Norwood, Snider’s brother and Hunley’s uncle. Although Poulin was not a party to the contract, it is undisputed that he signed the second page of the contract in the following manner:

“Approved by:
7s/ Fredrick C. Poulin
“Fred Poulin.”

Poulin claims that he was told by Norwood and Hunley, before and after he signed the contract, that he had to vacate the property. Norwood denied telling Poulin that he had to vacate the property before the execution of the contract.

Hunley, as the personal representative of Snider’s estate, executed a deed dated December 20, 2010, conveying the property to Norwood. Poulin refused to sign the deed and, at least initially, refused to vacate the property. Poulin claims that he received threats to vacate the property “or else.” Poulin did not specify who made any alleged threats. Norwood denied threatening Poulin or knowing of any threats made to him.

Poulin continued to reside on the property after Snider’s death and after the conveyance of the property to Norwood. On February 3, 2011, Norwood sued Pou-lin seeking an order removing Poulin from the property and a judgment for damages against him for wrongful possession of the property. Norwood claimed that Poulin had signed the real-estate contract, indicating that he approved of the sale of the property, and that he had orally agreed to vacate the property before closing the sale of the property. Norwood sought damages of $40 for each day Poulin remained on the property following the sale to Nor-wood. Poulin filed an answer denying the allegations of the complaint and asserting his right to possession of the property pursuant to § 43-8-114. On or about March 11, 2011, however, while Norwood’s suit was pending, Poulin vacated the property and delivered the keys to the house on the' property to Norwood. Several months' later, on August 8, 2011, Poulin filed a counterclaim against Norwood asserting the following claims for damages:

“[Poulin] would show that his possession [of the property] has been interfered with by [Norwood] or persons acting as agent of or on behalf of [Norwood].
“[Poulin] would show that [Norwood]’s actions in filing the above lawsuit against [Poulin] herein constitute an abuse of process, malicious prosecution and were designed to harass and force [Poulin] out of property to which he was legally entitled to possession] of. “[Poulin] would show that because of the harassment of [Norwood] and/or persons acting on his behalf, [Poulin] gave up physical possession of the property to which he was legally entitled to possession of and has been caused to suffer damages in that he does not have possession of the real estate he is legally entitled to possession of and has been forced to pay rent when otherwise he could be in possession of the real estate without having an obligation to pay rent.”

The parties participated in a pretrial conference and ultimately agreed to stipulate to all the material facts relevant to the litigation. On August 27, 2012, the trial court entered a judgment adopting the following stipulated facts, among others:

“25. The Real Estate Sales Contract states in part as follows:
‘A Possession is to be given on delivery of deed if property is then vacant; otherwise possession shall be delivered thirty days after closing.’
“26. Thirty days after December 20, 2010 is January 19, 2011.
“27. The number of days between March 11, 2011 when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and January 19, 2011 is 51 days.
“28. 51 multiplied by the $40.00 per day [Norwood] seeks damages for the wrongfully possession [sic] of the property by [Poulin] amounts to $2,040.00.
“29. The number of days between March 11, 2011, when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and April 30, 2012, the date this case was called for hearing is 415 days and is the number of days that [Poulin] contends he lost the use and occupancy of the property due to being forced out of the property.
“30. 415 multiplied by the $40.00 per day [Norwood] contends the rental value of the property was worth amounts to $16,600.00 which is the lost value to [Poulin] by being forced out of the property.
“31. [Poulin] pays $350.00 per month rent for his current residence.
“32. The number of months between March 11, 2011, when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and April 30, 2012, the date this case was called for hearing is 13 1/2 months.
“33. 13 [1/2] months multiplied by $350.00 amounts to $4,725.00 in rent [Poulin] contends that he was required to pay, which he should not have had to pay, because he was forced out of the marital home place.
“34. In addition, [Poulin] contends that he is entitled to compensation for the harassment, abuse of prosecution and malicious prosecution that he has endured due to [Norwood’s] bringing this case against him and the threats against him.
“35. [Norwood] contends, among other things, that [Poulin]’s signing of the Real Estate Sales Contract constitutes a waiver of [Poulin]’s rights under [§] 43-8-114[, Ala.Code 1975],
“36. [Poulin] contends that his agreement to a sale of the property, as reflected in the contract, does not constitute a waiver of his rights under [§] 43-8 — 114[, Ala.Code 1975,] and that he was still entitled to possession of subject property.
“37. The probate estate of Brenda J. Snider, deceased is still pending.
“38. There is presently pending in said probate case, a Petition to Set Aside Family Allowance During Administration and a Petition to Set Aside Homestead Allowance and Exempt Property During Administration which have been filed by [Poulin] and have yet to be ruled upon by the probate court.”

Based on the stipulations, the trial court entered the following judgment finding in favor of Norwood and against Poulin:

“Based upon the pleadings and the ... stipulated facts, it is hereby Ordered, Adjudged and Decreed as follows:
“Judgment in the amount of Two Thousand forty & no/100 Dollars ($2,040.00) is entered in favor of the Plaintiff [Norwood] and against the Defendant [Poulin] for which let execution issue. Costs of this action are hereby taxed against the Defendant [Poulin].”

Poulin filed a timely appeal to this court on October 9, 2012. After reviewing the judgment, we determined that it was not sufficient to support an appeal because it did not expressly adjudicate Poulin’s counterclaim for damages against Norwood. See Sanders v. Campbell) 128 So.3d 531 (Ala.Civ.App.2013) (ordinarily, a final judgment capable of supporting an appeal must adjudicate all pending claims). We reinvested the trial court with jurisdiction to consider whether it wished to address Poulin’s counterclaim. An amended order was entered by the trial court expressly finding in favor of Norwood on Poulin’s counterclaim. Therefore, the judgment is now final for purposes of an appeal. This court has appellate jurisdiction of the case under § 12-3-10, Ala.Code 1975.

The central issue presented for review on appeal is succinctly stated in the stipulations of the parties:

“35. [Norwood] contends, among other things, that [Poulin]’s signing of the Real Estate Sales Contract constitutes a waiver of [Poulin]’s rights under [§] 43-8-114[, Ala.Code 1975].
“36. [Poulin] contends that his agreement to a sale of the property, as reflected in the contract, does not constitute a waiver of his rights under [§] 43-8-114[, Ala.Code 1975,] and that he was still entitled to possession of subject property.”

Standard of Review

The facts were presented to the trial court by stipulation and through documentary evidence. No ore tenus testimony was taken.

“ ‘[Wjhen the trial court hears no oral testimony, and the evidence presented to the trial court consists of stipulations, depositions, and exhibits, the ore tenus rule does not apply.’ Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing McGhee v. International Paper Co., 729 So.2d 880 (Ala.Civ.App.1999)). Therefore, no presumption of correctness attaches to the trial court’s judgment, and our review of the trial court’s judgment is de novo. Id.; American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 872-73 (Ala.2006).”

Saad’s Healthcare Sens., Inc. v. Meinhardt, 19 So.3d 847, 852-53 (Ala.Civ.App.2007).

Discussion

Poulin contends that his signature on the real-estate contract purportedly approving of the sale of the property did not constitute a waiver of his right to possession of the property under § 43-8-114, Ala.Code 1975. As noted earlier, that section, which codifies the right of “quarantine,” provides:

“The spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and the plantation connected therewith until homestead is assigned, free from the payment of rent. The obligation to pay rent, if any, on the dwelling shall be an obligation of the decedent’s estate.”

Pursuant to the doctrine of quarantine, the conveyance of a decedent’s homestead by the personal representative of the decedent’s estate does not divest the decedent’s surviving spouse of the right of possession of the homestead. Clancy v. Stephens, 92 Ala. 577, 582, 9 So. 522, 523 (1891); see also Hayden v. Robinson, 472 So.2d 606, 609 (Ala.1985) (holding quarantine right under § 43-8-114 entitled the surviving spouse to retain possession of one of the parcels at issue). Therefore, the convey-anee of the property by Hunley, as the personal representative of Snider’s estate, to Norwood did not affect Poulin’s right to retain possession of the property under § 43-8-114. A surviving spouse may, however, “lose the right to elect or claim [the right] by bar, waiver, or relinquishment.” Garrard v. Lang, 489 So.2d 557, 558 (Ala.1986) (discussing the validity of a purported waiver by a surviving spouse of the right to an elective share); see, e.g., Penney v. Weems, 39 So. 574, 574 (Ala.1905) (not published in Alabama Reports ) (“[A] widow may release her right of quarantine .... ”). The question presented by the facts of this case is whether Poulin’s signature on the real-estate contract, standing alone, constituted a waiver of his right to possession of the property.

“ ‘ “Waiver is defined as the voluntary surrender or relinquishment of some known right, benefit, or advantage. City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110 (1967). However, it is well established that a party’s intention to waive a right is to be ascertained from the external acts manifesting the waiver. Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So.2d 277 (1975). This intention to waive a right may be found where one’s course of conduct indicates the same or is inconsistent with any other intention.” ’ ”

Hughes v. Mitchell Co., 49 So.3d 192, 201-02 (Ala.2010) (quoting Stewart v. Bradley, 15 So.3d 533, 543 (Ala.Civ.App.2008), quoting in turn Waters v. Taylor, 527 So.2d 139,141 (Ala.Civ.App.1988)).

Our review of the real-estate contract signed by Poulin and the stipulated facts reveals no evidence of an intent by Poulin to waive or relinquish his right to possession pursuant to § 43-8-114. There is no evidence of consideration to Poulin to waive any rights, no evidence of any agreement to waive any rights, and no evidence indicating that Poulin was aware of his right to possession of the property under § 43-8-114 at the time he signed the contract. The facts as stipulated by the parties do not show that Poulin was advised of his statutory right to quarantine and the consequences of waiving that right when he signed the real-estate contract. Thus, Poulin’s signature on the real-estate contract, standing alone, did not express a clear intention to waive his right to possess the homestead under § 43-8-114. See, e.g., Garrard v. Lang, 489 So.2d at 559 (indorsing and accepting checks from the estate and executor did not evidence a waiver under § 43-8-72, Ala.Code 1975, when the instruments did not contain language for the release of the widow’s rights); Whitehead v. Boutwell, 218 Ala. 109, 117 So. 623 (1928) (holding that joining a mortgage and releasing homestead and dower rights did not affect a widow’s quarantine right).

On appeal, Norwood cites § 43-8-72, Ala.Code 1975, and a single case, Clancy v. Stephens, 92 Ala. 577, 9 So. 522 (1891), in support of his position that Poulin’s signature constituted a waiver of his quarantine right under § 43-8-114., In Clancy v. Stephens, 92 Ala. at 582, 9 So. at 523, our supreme court held that the right of quarantine was incidental to a surviving spouse’s right to dower. See also Clark v. McWaters, 286 Ala. 563, 564, 243 So.2d 670, 672 (1970)(referring to the right of a widow who has remained in the dwelling house where the husband resided at death as the “ ‘quarantine’ right incidental to dower”). The right to quarantine lasted until dower was assigned. Clancy v. Stephens, 92 Ala. at 579, 9 So. at 522. A valid waiver of the right to quarantine required the same formalities as a waiver of the right to dower. 92 Ala. at 582, 9 So. at 523. The estate of dower has since been abolished. § 43-8-57, Ala.Code.1975. The current statute embodied in § 43-8-114 defines the duration of the quarantine right as lasting until the homestead is assigned; thus, the opinion in Clancy v. Stephens suggests that the quarantine right is now incidental to the homestead right. Accordingly, a valid waiver of a surviving spouse’s right under § 43-8-114 would require at least the same elements as the waiver of the surviving spouse’s right to the homestead allowance.

Section 43-8-72 provides for a waiver of a surviving spouse’s right to a homestead allowance:

“The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or a waiver signed by the party waiving after fair disclosure .... ”

This statute allows for a surviving spouse to unilaterally waive rights by executing a written document after fair disclosure. In Garrard v. Lang, our supreme court considered the validity of a purported waiver under § 43-8-72 through signatures of a surviving spouse indorsing and accepting two checks. The purported waiver was held to be ineffective when the evidence showed that the spouse had not been advised of her rights and of the consequences of waiving those rights and when the indorsed checks did not evidence an agreement to waive the spouse’s statutory allowances. Id. at 561. The instruments did not contain language for a release of the spouse’s rights, and the bare act of indorsing and accepting the checks was held to be insufficient evidence of a waiver. Id.

At a minimum, then, a valid waiver of a surviving spouse’s right to retain possession of the property encompassed in § 43-8-114 must clearly show the intention to release the statutory right with knowledge of that right, which would imply at least that a fair disclosure of the existence of the right occurred. Requiring a clearly expressed intent to release a statutory right after fair disclosure for a valid waiver is consistent with “[t]he public policy of Alabama strongly favor[ing] setting aside the homestead for the surviving spouse.” Goodwin v. Goodwin, 592 So.2d 212, 214 (Ala.1991). “‘[T]he burden of proof in establishing a waiver rests upon the party asserting the claim.’ ” Home v. TGM Assocs., L.P., 56 So.3d 615, 624 (Ala.2010) (quoting Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 93 (Ala.2005)). In this case, that burden was on Norwood to show that Poulin’s signature constituted a knowing waiver of his right to retain possession of the property. The stipulated facts of this case fail to support that assertion.

Norwood obtained a judgment against Poulin based on the allegation that Poulin wrongfully possessed the property between January 19, 2011, and March 11, 2011. Because Poulin was not a party to the real-estate contract, had not waived or relinquished his right to possession of the property merely by signing the contract, and had the right to possession of the property under § 43-8-114, that portion of the trial court’s judgment in favor of Nor-wood on his claim cannot be sustained and is reversed.

Poulin filed a counterclaim against Norwood for damages resulting from alleged harassment, abuse of process, and malicious prosecution. Poulin chose to present his claims to the trial court through stipulated facts rather than through the presentation of ore tenus testimony. Those stipulated facts contain bare assertions without supporting evidence indicating that Norwood committed any tortious acts. There are no facts in the record establishing any of these claims for relief, nor any evidentiary submission regarding damages to Poulin caused by those acts. Poulin made an unsupported assertion that he was forced to give up possession of the property on March 11, 2011, due to “harassment” by Norwood or unnamed persons acting on Norwood’s behalf. He claimed he was required to pay rent for another residence after leaving the property. But Poulin failed to present any evidence to support these assertions. Therefore, there are no facts in the record to support a judgment in favor of Poulin on his counterclaim. The parties are bound by their stipulation of the evidence on appeal. Accordingly, there is no basis to reverse the judgment finding in favor of Norwood and against Poulin on these theories of liability.

For the foregoing reasons, we affirm the trial court’s judgment in favor of Norwood on Poulin’s counterclaim, we reverse the judgment in favor of Norwood on his claim against Poulin, and we remand the case with instructions to enter a judgment in favor of Poulin on Norwood’s claim.

Norwood’s request for an award of attorney fees on appeal is denied.

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

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

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

      . The commentary to § 43-8-72 suggests that a waiver of statutory rights granted to a surviving spouse requires proof of “adequate consideration or that the agreement was entered into knowingly after full disclosure and knowledge of the value of the estate_” See also Garrard v. Lang, 489 So.2d at 560.


author: PER CURIAM. THOMPSON, Presiding Judge,

text:
    Diane GRAY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2120087.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2014.

      Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant.
    Thomas A. Woodall and Rodney E. No-len of Sirote & Permutt, P.C., Birmingham, for appellee.
   PER CURIAM.

Diane Gray appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of the Federal National Mortgage Association (“Fannie Mae”). We reverse the trial court’s judgment.

Facts and Procedural History

On April 15, 2011, Fannie Mae filed a complaint against Gray asserting that, “by virtue of foreclosure on April 4, 2011, of that certain Mortgage originally between Diane Gray and Mortgage Electronic Registration Systems, Inc. acting solely as nominee for Irwin Mortgage Corporation subsequently transferred and assigned to EverHome Mortgage Company and further purchased by [Fannie Mae],” Fannie Mae is the owner of certain real property located in Jefferson County. Fannie Mae alleged that it had served a written demand for possession on Gray, that Gray had failed to vacate the property, and that Gray had lost her right to redeem the property. Fannie Mae requested possession of the property, money damages for the wrongful retention of the property, and an order stating that Gray had “forfeited her right to redemption for failing to vacate the property.” On May 18, 2011, Gray answered and asserted as an affirmative defense that the foreclosure was void.

On March 27, 2012, Fannie Mae filed a motion for a summary judgment, along with evidentiary materials in support thereof. Fannie Mae submitted the affidavit of Robin Murdock, vice president for “EverBank sbm Everhome Mortgage Company” (hereinafter referred to as “Ev-erBank” or “EverHome”), the servicer of the loan, in which Murdock stated, in pertinent part:

“3. In my present position, I have direct access to business records of Ev-erBank as loan servicer regarding the account which forms the basis of this action and am a custodian of said business records. I have reviewed said relevant business records, and consistent with my review of the business records of EverBank as loan servicer, I have knowledge of the facts set forth in this Affidavit.
“4. The business records were made in the ordinary course of the business and it was the regular course of said business to make such records. Said records relative to Defendant GRAY ... and this action, were made at the time of the transaction, occurrence or event referred to therein or were made within a reasonable time thereafter, and said records are kept under my care, supervision, and/or control.
“5. On or about January 30, 2004, GRAY entered into and executed that certain Note, in favor of Irwin Mortgage Corporation and its successors and assigns ....
“6. On or about January 30, 2004, GRAY entered into and executed that certain Mortgage, securing the Note, in favor of FANNIE MAE....
“7. On May 10, 2007, Irwin Mortgage Corporation executed an Assignment of Mortgage to EverHome Mortgage Company (aka EverBank)....
“8. On November 4, 2010 and December 31, 2010, GRAY [was] sent a Notice of Default. This notice informed ... GRAY of [her] failure to make payments according to the terms of the Note and Mortgage and advised her of the possibility of foreclosure.... This notice was sent to the address recited in the Mortgage.
“9. On February 8, 2011, GRAY [was] sent a Notice of Acceleration at the address recited in the mortgage....
“10. The notice of foreclosure was published on February 9, 16, 23, and March 5, 2011, in The Alabama Messenger ....
“11. On April 4, 2011, the Mortgage was foreclosed through a valid foreclosure sale....
“12. By virtue of the April 4, 2011 foreclosure sale, FANNIE MAE was the highest and best bidder at the foreclosure sale and is the owner of the [property].
“13. On April 4, 2011, a demand for possession of the property was sent to ... GRAY at the property address set forth in the Mortgage....”

Fannie Mae also attached a note dated January 30, 2004, given by Gray in favor of Irwin Mortgage Corporation; a mortgage (“the mortgage”) relating to the property given by Gray to Mortgage Electronic Registration Systems, Inc. (“MERS”), acting solely as a nominee for Irwin Mortgage and its successors and assignees; an assignment of the mortgage from MERS, as nominee for Irwin Mortgage and its successors and assignees, to EverHome dated May 10, 2007; a letter dated November 4, 2010, notifying Gray that she was in default on her mortgage payments and that she had 20 days to get her account current or the mortgage would be foreclosed; a letter to Gray dated December 31, 2010, notifying her of her breach of the note and of the mortgage and stating that she must pay the amount of $21,094.53 in order to reinstate the loan and to avoid acceleration of the total amount due under the note and the mortgage; a letter dated February 8, 2011, notifying Gray that she was in default of the note and the mortgage and that Ever-Home was accelerating to maturity the entire unpaid balance of the loan; proof of publication of the notices in the Alabama Messenger, a newspaper of general circulation in Jefferson County; a foreclosure deed dated April 4, 2011, from EverHome to Fannie Mae, which states that the foreclosure sale occurred “at public outcry in front of the Courthouse door in Birmingham, Jefferson County, Alabama,” on that day “between the legal hours of sale” and which includes a certification from the auctioneer that the sale took place on that date at 11:33 a.m.; and a demand for possession of the property sent by Fannie Mae to Gray dated April 4, 2011.

On May 1, 2012, Gray filed her response to the summary-judgment motion, along with her affidavit in support thereof. In her affidavit, Gray averred, in pertinent part:

“I bought the property ... on January 30, 2004, and signed a promissory note with Irwin Mortgage Corporation and executed a mortgage with [MERS] as nominee for Irwin Mortgage Corporation. The note and mortgage are secured by the property.... The mortgage was recorded in the probate records of Jefferson County, Alabama. I am the sole owner of the property in which I currently reside.
“The mortgage and note [were] apparently transferred to EverHome Mortgage Company at some point thereafter; although, I was never notified of said transfer. Prior to the foreclosure Ever-Home was acting as the servicer of my mortgage loan. The original terms of the note and mortgage required [me] to pay $708.59 each month which included escrow funds for taxes and insurance. My mortgage is a Fannie Mae mortgage and so states on the face of the document. In September 2007,1 lost my job due to company layoffs. As a result of my job loss, my household income significantly decreased, and I began having difficulty paying the mortgage payments. Because of the circumstances, I began seeking assistance from the mortgage company regarding my difficulty in making the monthly mortgage payments. In October 2007, I began contacting the mortgage company about making payment arrangements. I tried to get EverHome to assist me, but it refused so I was forced to file a chapter 18 bankruptcy petition on March 31, 2008 to save my home. While I was in Bankruptcy, I lost my job in October 2010, and had difficulty again making my mortgage payments and the bankruptcy payments. I got behind with the mortgage payments again and was sent a notice that EverHome intended to foreclose on my home. I again contacted the mortgage company in February 2011 in an effort to save my home and asked for HAMP [Home Affordable Modification Program] modification through EverHome’s loss mitigation program.
“In February and March 2011, I spoke to the mortgage company numerous times about a loan modification or work out plan through their loss mitigation program. They told me they would work with me and that I qualified for assistance and would get a loan modification. However, they did not follow through with assisting me, and I never got the loan modification to which I was promised. I could never get anyone to follow up with the modification despite my repeated calls to the mortgage company. I sent all the requested information to them; however, I never heard from them. I had to keep calling them back regarding my application for assistance. I was told by them that the foreclosure would not go forward as long as they were working with me through the loss mitigation program. Because of these communications with the lender, I was confused about the foreclosure procedure. Further, I relied upon these communications and believed that the mortgage company was working with me to help me keep my home and avoid foreclosure.
“Although, I was aware I was in foreclosure, I never received any notice that a foreclosure sale had been set for April 4, 2011. On Friday, April 1, 2011,1 was told by representatives of the mortgage company not to worry, that they were still reviewing my account for a loan modification and that they would postpone any sale until the review was finished. My first knowledge [of] the foreclosure sale was the morning of the sale (April 4, 2011) at approximately 9:00 a.m. when I called the mortgage company to check on the status of the mortgage and was advised that the house ... was set to be sold that day at noon and that there was nothing further that they could do to stop the foreclosure sale. They refused to offer me any further help to save my home. I went to the courthouse at approximately 11:20 am the morning of the sale and stood on the front steps of the main entrance of the Jefferson County Courthouse. I stayed there until after 12:30 p.m. and no one ever appeared there to [sell] my house. I later received a letter from the law office of Sirote & Permutt advising me that the house had been sold and asking me to vacate the premises.
“I was never sent nor did I receive any proper notice of default or an opportunity to cure the delinquency. Furthermore, I was never provided with a notice of intent to accelerate as required by my mortgage contract. Paragraph 21 requires that the mortgage company send me a default notice and a notice of intent to accelerate the mortgage indebtedness. I was not provided with a notice of intent to accelerate stating the following elements: (a) the specific default, (b) the action required to cure the default, (c) a date by which to cure the default, and (d) that failure to cure the default on or before the date specified in the notice will cause acceleration of the debt. The notice was required by the mortgage, and was extremely important. I have a meritorious defense to this action. This property was wrongly foreclosed. Even if the mortgage contract is held to be valid, EverHome has failed to abide by the terms and conditions of the mortgage contract. Since its power of sale and ability to foreclose is conditioned upon the mandates and procedures of the contract, their failure to follow said contract renders the foreclosure sale invalid. EverHome wrongfully foreclosed and attempted to purchase for itself the property on April 4, 2011 without giving me a proper notice of the default, a notice of intent to accelerate, a notice of sale, and an opportunity to cure that default. Prior to acceleration of the debt, I did not receive the required notice outlined in the mortgage document that I was given on January 30, 2004.
“The indebtedness on the property at the time of the foreclosure sale was approximately $75,000.00. [Fannie Mae] bought the property from itself at the foreclosure sale for $73,185.89.
“Failure to set aside this foreclosure sale would render a harsh result on me due to my financial situation. I want to keep this property.”

Both parties moved to strike the affidavits submitted by the other party. On May 22, 2012, Fannie Mae filed a reply to Gray’s response to the summary-judgment motion. Fannie Mae attached an affidavit of the foreclosure-sale auctioneer averring that he had conducted the foreclosure sale on April 4, 2011, “at or about 11:33 AM during the legal hours of sale at the place appointed for foreclosure auctions in front of the main entrance to the Courthouse in Birmingham, Jefferson County, Alabama.”

After a hearing, the trial court entered a judgment on June 22, 2012, in favor of Fannie Mae, awarding possession of the property to Fannie Mae and ordering the Jefferson County sheriff to restore possession of the property to Fannie Mae. The trial court found that Gray had forfeited her right of redemption by failing to deliver possession of the property to Fannie Mae after having been given 10 days’ written notice. The trial court did not rule on the respective motions to strike. On July 25, 2012, Gray filed a postjudgment motion to alter, amend, or vacate the trial court’s judgment; Fannie Mae filed a response to the motion on September 4, 2012. Following a hearing, the trial court denied Gray’s postjudgment motion on September 6, 2012. On October 17, 2012, Gray filed her notice of appeal to this court. On May 22, 2013, this court transferred the appeal to the Alabama Supreme Court for lack of jurisdiction; that court subsequently transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Standard of Review

“ ‘We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary judgment motion:

“ ‘ “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 nonmovant 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.” ’
“American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000) (citations omitted)).”

General Motors Corp. v. Kilgore, 853 So.2d 171,173 (Ala.2002).

Discussion

On appeal, Gray argues that the summary judgment entered by the trial court was improper because, she says, there were genuine issues of material fact in dispute. Specifically, she argues that there was no evidence indicating that EerHome was the owner of the note at the time of the foreclosure sale. We agree. The only evidence regarding the note is a copy of the note indorsed by the vice president of Irwin Mortgage; that indorsement is not dated and does not include the name of the assignee of the note. In Harris v. Deutsche Bank National Trust Co., 141 So.3d 482, 491 (Ala.2013), our supreme court reasoned:

“The Harrises also argue that the power of sale described in the mortgage was given by the Harrises as part of the security for the repayment of the debt evidenced by the note and can be ‘executed’ only by the trustee if it was the party entitled to the money thus secured. They cite § 35-10-12, AIa.Code 1975, which states that the power to sell lands given in a mortgage ‘is part of the security and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured.’ In Carpenter v. First National Bank, 236 Ala. 213,181 So. 239 (1938), this Court applied the predecessor to § 35-10-12, stating:
“ ‘A power of sale in a mortgage of real estate is a part of the security, and passes to any one who by assignment or otherwise becomes entitled to the money secured. Code 1923, § 9010.
“ ‘But an agent of such holder to whom the mortgage is delivered merely for the pmpose of foreclosure, having no ownership of the debt, is not authorized to foreclose in his own name, and execute a deed in his name to the purchaser. Ownership of the debt does not pass to such agent merely because the note is indorsed in blank. Such foreclosure is ineffective, and a court of equity may take jurisdiction for the purpose of foreclosure.’
236 Ala. at 215, 181 So. at 240 (emphasis added). The foreclosure deed in this case was executed by the trustee in its own name, not on behalf of the lender, SouthStar, or any other party to which SouthStar may have assigned the note. The deed was effective to transfer title and to foreclose the rights of the mortgagor, therefore, only if the trustee, in its own name, was entitled to receive the money secured by the note at the time it executed and delivered that deed.
“The parties agree in their briefs, however, and we accept for purposes of this case, that the mortgage given MERS ‘solely as a nominee for Lender and Lender’s successors and assigns’ did not entitle MERS to the money secured by the mortgage. Accordingly, the subsequent assignment of that mortgage by MERS to the trustee did not accomplish an assignment of that right to the trustee. The trustee in fact concedes that summary judgment was inappropriate in this case and that on the state of the current record there is a genuine issue of material fact as to whether the trustee received an assignment of the note so as to have entitled it to execute the power of sale in its own name. (It asserts that, if this case is returned to the trial court, it will introduce ‘conclusive evidence’ of its receipt as early as 2005 of the debt evidenced by the original note signed by the Har-rises.) The summary judgment entered by the trial court therefore is due to be vacated and the case remanded for a determination as to whether the trustee received an assignment of the right to receive the money secured by the note, and thus the power to execute the corresponding power of sale in its own name, before executing and delivering the foreclosure deed.”

(Footnote omitted.) See also Ex parte BAC Home Loans Servicing, LP, [Ms.1110873, Sept. 13, 2013] — So.3d —, — (Ala.2013) (holding that the right of the foreclosing entity to conduct a foreclosure sale must be proven in order to show that the buyer at a foreclosure sale has superior legal title and a cause of action to eject the debtor). Further, in Coleman v. BAC Servicing, 104 So.3d 195 (Ala.Civ.App.2012), this court explained:

“Alabama law specifically contemplates that there can be a separation. See § 35-10-12 and Hartón [v Little, 176 Ala. 267, 57 So. 851 (1911) ]. The Restatement (Third) of Property: Mortgages takes the position that a note and mortgage can be separated but that ‘[t]he mortgage becomes useless in the hands of one who does not also hold the obligation because only the holder of the obligation can foreclose.’ Restatement (Third) of Property: Mortgages § 5.4, Reporter’s Note — Introduction, cmt. a at 386. The Restatement explains: ‘ “The note is the cow and the mortgage the tail. The cow can survive without a tail, but the tail cannot survive without the cow.” ’ Id. at 387 (quoting Best Fertilizers of Arizona, Inc. v. Bums, 117 Ariz. 178, 179, 571 P.2d 675, 676 (Ct.App.), reversed on other grounds, 116 Ariz. 492, 570 P.2d 179 (1977)).”

104 So.3d at 205.

Similar to Harris, in the present case “the mortgage given MERS ‘solely as a nominee for [Irwin Mortgage] and [Irwin Mortgage’s] successors and assigns’ did not entitle MERS to the money secured by the mortgage. Accordingly, the subsequent assignment of that mortgage by MERS to [EverHome] did not accomplish an assignment of that right to [Ever-Home].” Id. at 485. EverHome presented no evidence indicating that the note had been transferred “by delivery of possession or by written assignment.” Coleman v. BAC Servicing, 104 So.3d at 203 (“The promissory note evidencing that debt was a bearer instrument that could be transferred in two ways: by delivery of possession or by written assignment.”); see also Ala.Code 1975, § 8-5-24 (“The transfer of a ... note given for the purchase money of lands, whether the transfer be by delivery merely or in writing, expressed to be with or without recourse on the transferor, passes to the transferee the lien of the vendor of the lands.”). “ ‘[0]nly the holder of the obligation can foreclose.’ ” Coleman, 104 So.3d at 205. Because there was no evidence presented that EverHome, the foreclosing entity, was the holder of the note at the time of the foreclosure sale, we conclude that, like in Harris, the summary judgment entered in the present case was improper.

Gray makes several other arguments regarding the propriety of the summary judgment and the denial of her motion to strike. Because we are reversing the summary judgment on the merits, we preter-mit discussion of those arguments. See Crews v. McLing, 38 So.3d 688, 696 (Ala.2009).

Based on the foregoing, we reverse the summary judgment and remand this cause for further proceedings.

REVERSED AND REMANDED.

PITTMAN, MOORE, and DONALDSON, JJ, concur.

THOMPSON, P.J., concurs in the result only, with writing, which THOMAS, J., joins.

THOMPSON, Presiding Judge,

concurring in the result only.

In defense of the ejectment action initiated by the Federal National Mortgage Association (“Fannie Mae”), Diane Gray argued that the foreclosure deed pursuant to which Fannie Mae claimed to own the property was invalid because there was no authority to conduct the foreclosure sale upon which that deed is based. Among other things, Gray contends that, in support of its summary-judgment motion in its ejectment action, Fannie Mae failed to present prima facie evidence that either the mortgage or the note had been transferred to EverHome Mortgage Company before EverHome conducted the foreclosure sale.

The record indicates that on May 10, 2007, Mortgage Electronic Registration Systems, Inc. (“MERS”), in its capacity as nominee for Irwin Mortgage Company, the original mortgagee, purported to assign to EverHome the mortgage executed by Gray in favor of Irwin Mortgage Company. However, the power to sell or foreclose is available only to a person or entity entitled to payment of the money secured by the mortgage or note. § 35-10-7, Ala.Code 1975. In Harris v. Deutsche Bank National Trust Co., 141 So.3d 482 (Ala.2013), our supreme court held that when an agent, or nominee, of a lender is not entitled under § 35-10-7 to receive the money secured by a mortgage, the agent may not purport to transfer the right to receive that money on behalf of the lender. In other words, under the facts of this case, if MERS was not entitled to receive the money secured by the mortgage from Gray, it could not validly assign to Ever-Home the right to receive that money. The language specifying the rights afforded MERS under Gray’s mortgage is identical to the language setting forth the rights MERS had under the mortgage at issue in Harris. In Harris, the parties agreed that the language detailing MERS’s rights under the mortgage did not entitle MERS under § 35-10-7 to the money secured by the mortgage at issue, and our supreme court accepted that agreement for the purposes of resolving the appeal. 141 So.3d at 491. In this case, there is no such agreement. However, Fannie Mae has not argued that at the time MERS executed its purported assignment of Gray’s mortgage to EverHome, MERS had a right to receive the money secured by the mortgage. In the absence of such arguments or evidence, I believe the holding in Harris controls this issue in this case. EverHome could foreclose and transfer the property via a foreclosure deed to Fannie Mae only if, at the time it foreclosed, EverHome had the right to receive the money secured by the mortgage. Harris, 141 So.3d at 491. Under our supreme court’s recent holding in Harris, MERS could not properly assign the right to the payment of the money secured by Gray’s mortgage to EverHome. Accordingly, I must conclude that Fannie Mae failed to present a prima facie case that EverHome had acquired the right to foreclose on Gray’s mortgage by virtue of a purported assignment of that mortgage from MERS to EverHome.

However, the inquiry does not necessarily end when it is determined that a valid or timely assignment of a mortgage did not occur. This court has recognized that a mortgage need not be assigned in order to enable an owner of the debt secured by that mortgage to foreclose under a power of sale. Perry v. Federal Nat’l Mortg. Ass’n, 100 So.3d 1090, 1095 (Ala.Civ.App.2012). A promissory note secured by a mortgage that is indorsed in blank may be transferred merely by possession. Id. This court has explained:

“The promissory note evidencing that debt was a bearer instrument that could be transferred in two ways: by delivery of possession or by written assignment. See Ala.Code 1975, § 8-5-24 (‘The transfer of a ... note given for the purchase money of lands, whether the transfer be by delivery merely or in writing, expressed to be with or without recourse on the transferor, passes to the transferee the lien of the vendor of the lands.’); Kevin M. Hudspeth, Clarifying Murky MERS: Does Mortgage Electronic Registration Systems, Inc., Have Authority to Assign the Mortgage Note in a Standard Illinois Foreclosure Action?, 31 N. Ill. U.L.Rev. 1, 14 (2010) (stating that ‘a plaintiff in a mortgage foreclosure action obtains the right to enforce the note in one of two primary ways: (1) through proper assignment ..., or (2) through negotiation under the U[niform] C[ommercial] C[ode]’).
‘“Ownership of a contractual obligation can generally be transferred by a document of assignment; see Restatement, Second, Contracts § 316 [ (1981) ]. However, if the obligation is embodied in a negotiable instrument, a transfer of the right to enforce must be made by delivery of the instrument; see [former] U.C.C. § 3-202 (1995).’
“Restatement (Third) of Property: Mortgages § 5.4, cmt. b. at 381.”

Coleman v. BAC Servicing, 104 So.3d 195, 203-04 (Ala.Civ.App.2012).

As the main opinion indicates, the record on appeal contains a blank indorsement to EverHome of the note executed by Gray and secured by the mortgage. My review of the evidence in the record indicates that Fannie Mae failed to present evidence as to whether EverHome was in possession of the note that was indorsed in blank. Murdock’s affidavit speaks only in terms of certain actions being taken by some unspecified entity — perhaps Ever-Home, although this court may not so speculate — in seeking to accelerate Gray’s debt and foreclose based on the purported assignment of the mortgage from MERS to EverHome. EverHome might have been in possession of the promissory note at the time it foreclosed; however, Fannie Mae failed to make a prima facie showing in support of its summary-judgment motion that EverHome was in possession of the note.

Fannie Mae attempted to base its prima facie case in support of ejectment on its claim that it had a valid foreclosure deed. However, Fannie Mae failed to present prima facie evidence demonstrating that EverHome had the authority to foreclose and to issue the foreclosure deed. Accordingly, I conclude that Gray has demonstrated on appeal that the tidal court erred in entering a summary judgment in favor of Fannie Mae.

THOMAS, J., concurs.

      . In considering this issue, I do not address the argument raised by Gray that some portions of Fannie Mae's evidence was not admissible under Rule 56, Ala. R. Civ. P.

      . In support of its summary-judgment motion, Fannie Mae submitted the affidavit of Robin Murdock, the "Vice President for Ever-bank sbm Everhome.” In his affidavit, Mur-dock stated that, "[o]n May 10, 2007, Irwin Mortgage Corporation executed an Assignment of Mortgage to EverHome Mortgage Company (aka EverBank). A copy of the Assignment of Mortgage is attached as 'Exhibit C.’ " The exhibit to which Murdock referred in his affidavit was the May 10, 2007, purported assignment from MERS, as nominee for Irwin Mortgage Company, to EverHome. Fannie Mae submitted no other evidence tending to indicate that Irwin Mortgage Company had executed an assignment of Gray's mortgage to EverHome.

      . A "blank indorsement” is “an indorsement that names no specific payee, thus making the instrument payable to the bearer and negotiable by delivery only.” Black's Law Dictionary 844 (9th ed. 2009).