author: THOMAS, Judge.

text:
    Ricky Lynn and Tamra LYNN v. WADE STUART FAMILY ENTERPRISES, L.P., and Hazel Stuart.
    2070096.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2008.

      W. Gregory Ward, Lanett; and William L. Nix of Morrow & Nix, West Point, Georgia, for appellants.
    Stephen V. Kern of Kitchens Kelley Gaynes, P.C., Atlanta, Georgia; and Joseph M. Tucker, LaFayette, for appellees.
   THOMAS, Judge.

On April 5, 2006, Ricky Lynn and Taña-ra Lynn sued Wade Stuart Family Enterprises, L.P. (“WSFE”), a Georgia limited partnership, and Hazel Stuart, a Georgia resident and a general partner in WSFE, alleging breach of a real-estate sales contract. The Lynns’ complaint sought damages for breach of contract, specific performance of the contract, injunctive relief prohibiting WSFE from conveying the property to any other buyer, and attorneys’ fees and costs.

Ricky Lynn testified by deposition that in November 2005 he saw a “for sale” sign on a parcel of real estate fronting on 55th Street, also known as “Burney Road,” in Chambers County. The sign indicated that the realty was offered for sale by Remax Results of LaGrange, Georgia. The name and telephone number of the listing agent were displayed on the sign. Lynn contacted the listing agent and learned that the property contained approximately 27 acres of land and that the sales price was $360,000. The listing agent faxed Lynn a sketch showing the location and general contours of the property. A week later, Lynn met the listing agent at the site and walked the pi’operty to visually inspect it. Lynn testified that his inspection of the property led him to believe that the parcel may have been larger than 27 acres. Because he was unsure of the property lines, he told the listing agent that he wanted a survey. The listing agent informed Lynn that she would check with the owner about a survey. In late November or early December, Lynn received a survey from the listing agent and he walked the property again, that time with the survey. Lynn testified that for several months he was unsure about purchasing the property. Then, in March 2006, Lynn made an offer of $260,000 on the property. On March 7, 2006, the listing agent brought a six-page, preprinted, contract offer form to Lynn. The form named Hazel Stuart as the seller, the Lynns as the buyers, and recited a purchase price of $260,000.

The contract form designated the property as

“55 Burney Road, Valley, Alabama 3685k, according to the present system of numbering in and around this area, being more particularly described as Lot _, Block_, Phase/Section_of_ subdivision, as recorded in Plat Book 210, Page 905, Chambers County, AL, records .... The full legal description of Property is the same as is recorded with the Clerk of the Superior Court of the county in which Property is located and is made a part of this Agreement by reference.”

There were no documents attached to the form; specifically, the survey that been provided to Lynn was not attached to or referenced in the contract.

The contract was signed by Hazel Stuart and the Lynns. The closing was scheduled for March 31, 2006. On March 29, 2006, WSFE informed the Lynns that it was the owner of the property and that Hazel Stuart, who had signed the contract in her individual capacity, was not authorized to sell the property. During the 22-day interval between the signing of the real-estate sales contract and WSFE’s repudiation of the contract, the Lynns expended no money in reliance upon the contract; they neither made any improvements nor were they put in possession of the property. It was undisputed that WSFE owns two parcels of real estate contiguous to Burney Road in Valley, Alabama, but that neither parcel is located at 55 Burney Road. It was also undisputed that page 905 of plat book 210 is a plat for a different parcel of property belonging to a different owner. There is no superior court in Chambers County.

On May 11, 2007, the circuit court dismissed the complaint against Hazel Stuart for lack of personal jurisdiction and entered a summary judgment in favor of WSFE on all the Lynns’ claims. The Lynns filed a timely postjudgment motion, which the circuit court denied on June 21, 2007. On June 27, 2007, the Lynns filed a timely notice of appeal to the Alabama Supreme Court, which transferred the case to this court pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, the Lynns present three issues, but, because one issue is dispositive, we do not address the other two. The dispositive issue is whether the real-estate sales contract is void under the Statute of Frauds, § 8 — 9—2(5), Aa.Code 1975, due to an insufficient description of the realty.

Standard of Review

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see § 12-21-12(d), Aa.Code 1975.

Discussion

The Statute of Frauds provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.”

§ 8-9-2, Aa.Code 1975.

Athough there is no provision in the Statute of Frauds regarding the sufficiency of the description of land, our supreme court has held that “[contracts for the sale of lands must describe the lands with such certainty that they can be identified without resorting to oral evidence.” Shannon v. Wisdom, 171 Ala. 409, 413, 55 So. 102, 103 (1911).

In Jones v. Pettus, 252 Ala. 12, 39 So.2d 12 (1949), the Aabama Supreme Court stated:

“The statute of frauds creates a rule of evidence in respect to the proof of exec-utory contracts for the sale of land and the following test has been laid down by this court in respect to the proof of such contracts.
“In the case of Alba v. Strong, 94 Aa. 163, [165,] 10 So. 242, [242-43 (1891),] it was observed by this court, speaking through Chief Justice Stone, that:
“ ‘The following propositions must be regarded as settled by the former decisions of this court beyond controversy: First. That to authorize the specific enforcement of an agreement to sell land all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second. That all the terms of the agreement, viz., the names of the parties, the subject-matter of the contract, the consideration and the promise, must be in writing, signed by the party sought to be charged, or by his agent thereunto authorized in writing. Code 1886, § 1732. Third. That it is not essential that the paper evidence of the agreement be in any particular form, provided it contain the substance, as stated above. Fourth. That the mitten evidence of the terms of the agreement need not all be expressed in one paper. If expressed in two or more papers it will be sufficient, if collectively they contain enough, and refer to each other, and shoiu the connection tvith sufficient clearness, without the aid of oral testimony. If, however, oral testimony is required to connect the papers, or to supply any essential term of the contract, then there is a failure to make a case for specific performance.’

252 Ala. at 14, 39 So.2d at 13 (emphasis added). See generally W.W. Allen, Annot., Sufficiency of Description or Designation of Land in Contract or Memorandum of Sale, Under Statute of Frauds, 23 A.L.R.2d 6, 12-13 (1952) (stating that “[t]he test is, does the writing furnish the means of identification, or, as some cases have it, does it provide the ‘key’ to the identification, the applicable principle being that that is certain which can be made certain” (footnotes omitted) (quoted, in part, in Goodwyn v. Jones, 288 Ala. 71, 76, 257 So.2d 320, 324 (1971))).

In the instant case, the description of the property in the real-estate sales contract was uncertain and incomplete because WSFE, which owns two parcels of realty adjoining Burney Road, does not own any property at “55 Burney Road,” the address designated in the contract. Moreover, page 905 of plat book 210, which the contract references, relates to different property belonging to a different owner. The Lynns argue that the uncertain and incomplete description in the contract can be made certain and complete by considering the survey that was provided to the Lynns.

The survey, however, was neither attached to the contract nor referenced in the contract. See Butler Cotton Oil Co. v. Millican, 216 Ala. 472, 473, 113 So. 529, 530 (1927) (holding that insufficiency of description in auctioneer’s memorandum could not be aided by a map or plat not connected by any reference thereto in the memorandum and stating that the Statute of Frauds “ ‘requires the substantive parts of the contract to appear in the writing. To admit parol evidence of any of the terms of the contract with respect to which the memorandum is silent, would open the door to the very mischief the statute was intended to suppress’ ” (quoting Johnson v. Buck, 35 N.J.L. 338, 343 (1872))); Knox v. King, 36 Ala. 367, 369 (1860) (stating that “when the memorandum in writing is itself incomplete, it cannot derive aid from another writing, unless the memorandum refer to the other writing. Oral evidence cannot be received to connect the two, or to supply the wanting link; for this would let in all the mischiefs which the statute of frauds and perjuries was intended to prevent.”).

Any connection between the property designated in the real-estate sales contract and the property shown on the survey “is wholly dependent upon oral proof, and it is well established that parol proof is not admissible to render valid undertakings which are void by reason of the statute of frauds.” Ezzell v. S.G. Holland Stave Co., 210 Ala. 694, 697, 99 So. 78, 80 (1924). “ ‘If it is necessary to resort to oral evidence of the intention of the parties as to the lands bargained for, the writing is not sufficient, and the statute is not complied with.’ ” Id. (quoting Shannon v. Wisdom, 171 Ala. at 413, 55 So. at 103).

The Lynns cite Wray v. Harris, 350 So.2d 409 (Ala.1977), Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971), Dobson v. Deason, 248 Ala. 496, 28 So.2d 418 (1946), and Minge v. Green, 176 Ala. 343, 58 So. 381 (1912), for the proposition that an inadequate written description of realty can be made adequate by parol evidence of “facts and circumstances” that render the description clear and certain. Wray and Goodwyn are distinguishable because they are based on the part-performance exception to the Statute of Frauds.

“ ‘The doctrine of part performance operates on the theory of estoppel, particularly estoppel by conduct, to assert the Statute [of Frauds].’ 10 Richard A. Lord, Williston on Contracts § 28:2 at 266 [ (4th ed.1999) ]. (emphasis added). In a part-performance case, the seller’s conduct — -accepting some or all of the purchase price for the land and putting the buyer in possession — estops him from denying the validity of the oral contract. Essentially, the part-performance exception applies ‘ “ ‘ “only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.” ’ ” ’ Rentz v. Grant, 934 So.2d [368] at 374 [ (Ala.2006) ] (quoting Holman v. Childersburg Bancorporation, Inc., 852 So.2d [691] at 698 [ (Ala.2002) ], quoting, in turn, Quinlivan v. Quinlivan, 269 Ala. 642, 645, 114 So.2d 838, 840 (1959)) (emphasis added in Holman).”

Fausak’s Tire Ctr., Inc. v. Blanchard, 959 So.2d 1132, 1143 (Ala.Civ.App.2006) (footnote omitted). See Dozier v. Troy Drive-In-Theatres, Inc., 265 Ala. 93, 100, 89 So.2d 537, 543 (1956) (stating that when a portion of the purchase price has been paid and “ ‘the purchaser or lessee [has been] put in possession, or [has taken] possession with the acquiescence of the vendor or lessor, of a definite tract of land, ... any uncertainty or indefiniteness in the description thereof is removed’ ”) (quoting 37 C.J.S., Statute of Frauds § 190). See also Hamilton v. Stone, 202 Ala. 468, 80 So. 852 (1919); Meyer Bros. v. Mitchell, 75 Ala. 475 (1883). This case involves no part performance of the contract.

In Dobson, the realty was described as “ ‘property, known as Millport Motor Company, at Millport, Alabama.’ ” 248 Ala. at 497, 28 So.2d at 418. Although the court did not explain what “parol evidence of concurrent facts and circumstances,” 248 Ala. at 498, 28 So.2d at 419, was admitted to make the general description specific, presumably the evidence had to do with the uniqueness of the business designation, a circumstance that is not present in the instant case.

In Minge, the property was described as a “ ‘400-acre farm about two miles from Batelle (a station) on the [Alabama Great Southern Railroad].’ ” 176 Ala. at 346, 58 So. at 383. The facts and circumstances that made the description specific in Minge were that Green, the seller, owned only one farm, which was, in fact, about two miles from the designated railroad station. The evidence in the present case indicated that WSFE owned two parcels adjoining Burney Road. Minge is, therefore, distinguishable and does not help the Lynns.

WSFE made a prima facie showing there was no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The Lynns failed to rebut that prima facie showing by substantial evidence. Because the description of the land in the real-estate sales contract was insufficient, the contract was void under the Statute of Frauds and the circuit court correctly entered a judgment in favor of WSFE. The judgment of the Chambers Circuit Court is, therefore, affirmed.

AFFIRMED.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    Terry Lynn FORD v. Tobatha Gupton FORD.
    2061052.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2008.
    Jay E. Stover of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.
    Roy O. McCord of McCord & Martin, Gadsden, for appellee.
   THOMAS, Judge.

Terry Lynn Ford (“the father”) and To-batha Gupton Ford (“the mother”) were married in November 1984. In September 2006, after nearly 22 years of marriage, the parties separated. The mother filed for a divorce. After a short trial, the trial court entered a judgment on April 16, 2007, divorcing the parties. The judgment awarded the parties joint custody of their children, ordered no child support be paid by either party, and awarded the mother her retirement account; the marital residence was ordered to be sold, and any remaining proceeds after the retirement of the two mortgages on the residence were to be divided equally.

After the entry of the divorce judgment, the father filed a motion to require the mother to produce proof of the value of her retirement plan. He also filed a post-judgment motion requesting that the trial court award him physical custody and that the trial court reconsider its decision not to award him any portion of the mother’s retirement benefits. The mother filed a motion to enforce the divorce judgment and filed responses to the father’s motions. Pursuant to the trial court’s order granting the father’s request that she produce proof of the value of her retirement plan, the mother presented copies of documents relating to her retirement plan. After a hearing on the father’s postjudgment motion, the trial court, among other things not pertinent to this appeal, denied his motion. The father timely appealed.

On appeal, the father argues first that the trial court’s joint-custody award fails to comply with the joint-custody statute because it fails to specify a joint-custody plan as required by Ala.Code 1975, § 30-3-153. He further argues that the trial court erred in not awarding him child support in light of the disparity in the parties’ incomes. Finally, the father argues that the trial court erred in failing to award him a portion of the mother’s retirement account.

The father is self-employed as a residential contractor. His income affidavit lists his income as $4,666 per month. He testified at trial that 2006 had been a bad year for his business, but he did not specifically testify regarding his income for that year. The only “retirement” account that the father has is a $52,000 certificate of deposit. The mother is employed as a federal probation officer, earning $94,000 per year. She has worked for the federal government since 1979; she has been a probation officer for the last 16 of those years. The mother testified that she has a retirement plan and that she had accrued some retirement benefits before the parties’ marriage. The transcript is devoid of any evidence regarding the value of the mother’s retirement plan, whether she was vested in that plan, and what percentage of her retirement plan was earned before the parties married in 1984.

We will first address the father’s contention that the trial court erred by not awarding him a portion of the mother’s retirement benefits. As noted above, the transcript contains no evidence regarding the mother’s retirement benefits other than the fact that she has a retirement account and that a portion of the value of that account was accumulated prior to the marriage. Although the father requested, in a postjudgment motion, information regarding the mother’s retirement account, and although the information the mother provided is in the record, the father failed to prove the type of retirement account that the mother has, what portion of the benefits were earned or accrued prior to the marriage, or if the mother’s rights to the retirement benefits have vested. As we have explained, Ala.Code 1975, § 30-2-51(b), permits a trial court to award a spouse a portion of his or her spouse’s retirement benefits only if certain requirements are met:

“A reading of § 30-2-51 (b) indicates that a trial judge has the discretion to divide a spouse’s retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51(b) then states that the trial judge’s discretion to divide retirement benefits is further limited by three additional conditions:, the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50 percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for 10 years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court.”

Smith v. Smith, 836 So.2d 893, 899-900 (Ala.Civ.App.2002). In cases in which the spouse seeking the award of benefits has not proven the amount of retirement benefits accrued during the marriage, we have held that that failure of proof prevents a trial court from exercising its discretion to award retirement benefits under the statute. See Capone v. Capone, 962 So.2d 835, 840 (Ala.Civ.App.2006); Dunn v. Dunn, 891 So.2d 891, 895 (Ala.Civ.App.2004). Thus, we cannot agree that the trial court’s failure to award the father a portion of the mother’s retirement benefits was error.

The father also argues that the trial court erred by awarding the parties joint custody without setting out a plan for joint custody, as required by § 30-3-153, and that the trial court erred by not awarding him child support despite the disparity in the parties’ incomes. The father correctly argues that in cases in which joint custody is awarded, a plan for implementing the joint-custody arrangement is required. § 30-3-153(a). The statute reads:

“(a) In order to implement joint custody, the court shall require the parents to submit, as part of them agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
“(1) The care and education of the child.
“(2) The medical and dental care of the child.
“(3) Holidays and vacations.
“(4) Child support.
“(5) Other necessary factors that affect the physical or emotional health and well-being of the child.
“(6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.
“(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan.”

§ 30-3-153.

In the present case, the trial court’s custody award reads as follows: “The parties shall have the shared joint care, custody, and control of [the parties’] children.” The award does not indicate which parent will have physical custody of the children on any given day, § 30-3-153(a)(l), which parent has the right to physical custody of the children on any particular holiday, § 30-3-153(a)(3), or which parent, in the face of disagreement between the two, has primary authority to resolve issues regarding the children’s education, religious upbringing, or medical care. § 30-3-153(a)(6). In short, we agree with the father that the award is deficient in many respects. We therefore reverse the trial court’s judgment regarding custody and remand the cause for the trial court to set a plan for joint custody as required by § 30-3-153(b).

Because we are reversing the custody judgment, we also reverse the trial court’s judgment insofar as it failed to award child support to either party. The joint-custody plan set by the trial court on remand might impact the need for child support. In addition, we note that the determination of child support is considered to be a part of the joint-custody plan. § 30-3-153(a)(4).

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

PITTMAN, BRYAN, and MOORE, JJ, concur.

THOMPSON, P.J., concurs in the result, without writing.

      . Section 30-3-51(b) reads:
      "(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
      "(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
      "(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
      "(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”


text:
    Raymond W. GILBREATH and Sherry L. Gilbreath v. Richard Earl HARBOUR and Charlotte Harbour.
    2070142.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.
    John H. Ufford II, Crossville, for appellants.
    J. David Dodd and J. Eric Brisendine of Scruggs, Dodd & Dodd, Attorneys, P.A., Fort Payne, for appellees. '
   THOMAS, Judge.

On February 23, 2004, Raymond W. Gil-breath and Sherry L. Gilbreath (“the Gil-breaths”) sued Richard Earl Harbour and Charlotte Harbour (“the Harbours”), and Timothy Harbour, the Harbours’ son. The Gilbreaths and the Harbours own adjoining tracts of land. In their complaint, the Gilbreaths alleged a boundary-line dispute and claimed ownership of certain property (“the disputed property”) by adverse possession. The Gilbreaths also sought an injunction, seeking to enjoin the parties from altering the disputed property, destroying the boundary markers between the parties’ properties, and harassing one another.

On March 11, 2004, the Harbours answered the Gilbreaths’ complaint, denying the allegations contained therein. Timothy Harbour also answered the Gilbreaths’ complaint, denying their allegations.

On December 6, 2005, the Gilbreaths moved for leave to amend their complaint, seeking to add a claim of intentional infliction of emotional distress against the Har-bours and Timothy Harbour and seeking to add claims alleging assault and the tort of outrage against Timothy Harbour. On January 13, 2006, the trial court entered an order that, among other things, permitted the Gilbreaths to amend their complaint. On January 23, 2006, the Gil-breaths sought and received leave of the trial court to amend their complaint again to request special damages stemming from Timothy Harbour’s alleged assault upon Raymond Gilbreath.

The case was set for trial on August 8, 2007. At the trial, the parties stipulated that the tort claims against the Harbours and Timothy Harbour would be tried separately from the boundary-line dispute. There is no order severing the claims, and nothing in the record shows that a new case number was assigned to the tort claims.

On September 13, 2007, the trial court entered a judgment (“the boundary-line judgment”) in favor of the Harbours, finding that the Gilbreaths had not adversely possessed the disputed property. However, the trial court did find that the Gil-breaths’ use of a driveway on the disputed property had “been under a claim of right.” The trial court therefore found that the Gilbreaths had a prescriptive easement in the driveway on the disputed property.

On October 22, 2007, the trial court rendered an order that purported to certify its September 13, 2007, boundary-line judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The Gilbreaths appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

This court has stated:

“Although the issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’ McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App. 2004). ‘[T]he question whether a judgment is final is a jurisdictional question.’ Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala.Civ.App.2002).”

Naylor v. Naylor, 981 So.2d 440, 441 (Ala. Civ.App.2007).

The trial court’s October 22, 2007, order purporting to certify the boundary-line judgment as final pursuant to Rule 54(b) was never input into the State Judicial Information System (“SJIS”). Rule 58(c), Ala. R. Civ. P., provides:

“(c) Entry of Order or Judgment. Upon rendition of an order or a judgment as provided in subdivision (a) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed ‘entered, ’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment.”

(Emphasis added.) The Committee Comments to Amendment to Rule 58 Effective September 19, 2006, state, in part:

“This amendment to Rule 58(c) reinstates the distinction between the substantive, judicial act of rendering a judgment and the procedural, ministerial act of entering a judgment. Thus, the rule is also amended to include a new provision that interest on a judgment begins to run at the time of rendition of the judgment. The jurisdictional need for an unambiguous, universally available judgment-entny date for the sake of an appeal does not apply to the question of the commencement of the running of interest on the judgment, as to which the parties can determine the date of rendition, if necessary, after the judgment becomes final and either no appeal is taken or all appeals have been exhausted.”

(Emphasis added.)

In Day v. Davis, 989 So.2d 1118 (Ala. Civ.App.2008), this court recently dismissed an appeal from a nonfinal judgment because the judgment adjudicated the parties’ boundary-line dispute, but not the tort claims asserted in the same action. In Day, 989 So.2d at 1120-21, we stated:

“In this case, the record indicates that the parties and the trial court intended to address the issues in this action in separate trials. However, when separate trials are ordered, a ruling on fewer than all the pending issues is not sufficiently final to support an appeal. Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 402 (Ala.Civ.App.1998). The Committee Comments Adopted February 13, 2004, to Rule 21, Ala. R. Civ. P., explain: “ ‘Rule 21 provides that: “Any claim against a party may be severed and proceeded with separately.” Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42(b)[, Ala. R. Civ. P.] The distinction has at least the significance that a judgment on the first of two separate trials is not final, absent an order pursuant to Rule 54(b), Ala. R. Civ. P., while after a true severance a judgment on the first action to come to trial is final and appealable without reference to the proceedings in the severed action. Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.1976)

“In Bryant v. Flagstar Enterprises, Inc., supra, this court stated:

“ ‘[T]he Alabama Supreme Court long ago noted the distinction between a trial court’s severance of claims from an action, pursuant to Rule 21, Ala. R. Civ. P., and its ordering separate trials in a single action, pursuant to Rule 42, Ala. R. Civ. P.:
“ ‘ “[SJeparate trials of different claims in a single action under Rule 12(b) 'usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 51(b) must be followed. When, however, a claim is severed from the original action, as authorized by Rule 21, [Ala. R. Civ. PJ, a new action is created, just as if it had never been a part of the original action, and a completely independent judgment results. Because the new action is no longer connected to the original action, the judgment rendered is not a determination as to fewer than all the parties and claims, and Rule 54(b) does not apply.”
‘Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala.1976) (emphasis added); see also Seybold v. Magnolia Land Co., 372 So.2d 865, 866 (Ala.1979) (dismissing appeal from order relating to single plaintiff, where three other plaintiffs’ claims remained pending, relying on Key).’
717 So.2d. at 402.”

The trial court in this action bifurcated the claims for separate trials upon the agreed, oral motion of the parties. In its September 13, 2007, judgment, the, court adjudicated the parties’ boundary-line dispute. On October 22, 2007, the court rendered an order certifying the boundary-line judgment as final pursuant to Rule 54(b); that order was never entered.

Although this action was initiated in 2004, the supreme court has held that the September 19, 2006, amendment to Rule 58(c) applies to cases that were pending at the time the amendment became effective, even if those cases were pending on appeal. Ex parte Luker, [Ms. 1051805, August 31, 2007] — So.3d - (Ala.2007). Because the October 22, 2007, order purporting to certify the September 13, 2007, boundary-line judgment as a final pursuant to Rule 54(b) was rendered, but never input into the SJIS, and therefore never entered, the judgment is a nonfinal judgment and will not support an appeal. Spradlin v. Lovvorn, 891 So.2d 351 (Ala.Civ.App.2004); see also Ex parte Luker, supra; Martin v. Martin, 998 So.2d 1081, 1083 (Ala.Civ.App.2008) (stating that although a trial court rendered a judgment on a postjudgment motion, the motion was actually denied by operation of law because “that order was not entered on the State Judicial Information System”).

Therefore, we dismiss the appeal for lack of appellate jurisdiction.

APPEAL DISMISSED.

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


author: PER CURIAM. THOMAS, Judge,

text:
    Jerry STOUT and Jose Mills v. Michael Anthony CUMSE and Colbert County.
    2070283.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.

      Daniel G. McDowell and Brian Hamilton of McDowell, Beason & Hamilton, P.C., Russellville, for appellants.
    Kendrick E. Webb, Bart G. Harmon, and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, for appellees.
   PER CURIAM.

The plaintiffs, Jerry Stout and Jose Mills, appeal from the trial court’s dismissal of their action against the defendants, Michael Anthony Cumse and Colbert County (“the County”). We reverse and remand.

The plaintiffs sued Cumse and the County, alleging claims of negligence and wantonness. The plaintiffs’ complaint alleged, in pertinent part:

“6. On or about November 10, 2005, upon a public street or highway, ... Cumse[ ] negligently and/or wantonly caused [or] allowed the vehicle in which [the] plaintiffs were passengers to collide with another vehicle.
“7. At the time of the motor vehicle accident described in the preceding paragraph, ... Cumse[ ] was performing an act, errand, mission or objective for ... [the] County, and [he] was furthering the business pursuits of said legal entity. As such, [the] County[ ] is liable for the acts and omissions of ... Cumse, under theories of agency, master/servant, respondent superior, and/or vicarious liability.
“8. Defendants willfully, negligently, and recklessly caused or allowed the plaintiffs to be transported without wearing a seat belt or any other type of restraint while in the custody of the Colbert County Sheriffs Department resulting in serious injuries to the plaintiffs.
“9. On or about said time and place, the ... County[ ] was the owner of and had the right of control over the use of the motor vehicle driven by ... Cumse. [The] County, as owner of the vehicle driven by ... Cumse, negligently entrusted said vehicle to ... Cumse, who negligently and/or wantonly operated said vehicle causing the injuries to the plaintiff[s]. [The] County[ ] entrusted said vehicle to ... Cumse, and is, therefore, liable to the plaintiffs. Said negligent entrustment was a proximate cause of the plaintiffs’ injuries.
“10. At the aforesaid time and place and for some time prior thereto, the ... Countyf] was the owner of said motor vehicle driven by ... Cumse, and as such[, the County] had the authority to supervise the maintenance, operation and repair of said motor vehicle, including the restraining of passengers in said motor vehicle, and the hiring and training of drivers of motor vehicles operated by or on behalf of [the] County. [The] County[ ] negligently and/or wantonly exercised or failed to exercise said supervisory control, and said negligent or wanton conduct was the proximate cause of the injuries of the plaintiffs.”

Cumse answered and filed a motion to dismiss. In his answer, Cumse admitted, in reference to paragraph 7 of the complaint, that “he was performing an act, errand, mission or objective for his employer! ] and [that he] was furthering the business pursuits of [his] employer.” In reference to paragraph 8 of the complaint, Cumse admitted that “he was transporting the plaintiffs while the plaintiffs were in the custody of the Colbert County Sheriffs Department.” In his motion to dismiss, Cumse asserted that he was entitled to State immunity under Art. I, § 14, Ala. Const.1901. In that motion, Cumse asserted that, at the time of the alleged automobile accident, he was a deputy sheriff of the Colbert County Sheriffs Department (“the Sheriffs Department”) and that he was acting within the line and scope of his duties as a deputy sheriff. Therefore, Cumse asserted, the claims against him were due to be dismissed on the ground of State immunity.

The County filed a Rule 12(b)(6) motion to dismiss, asserting that Cumse, at the time of the alleged automobile accident, was a deputy sheriff and, therefore, was not an employee of the County. Therefore, the County asserted, it could not be liable for Cumse’s actions on theories of “agency, master/servant, respondeat superior, vicarious liability, or negligent supervision,” as alleged in paragraph 7 of the plaintiffs’ complaint. See, e.g., King v. Colbert County, 620 So.2d 623, 625 (Ala. 1993) (stating that a sheriff “is not considered an employee of the county for the purposes of imposing liability upon the county” and, therefore, the county cannot be held vicariously liable for the sheriffs actions or inactions); and Mack v. Arnold, 929 So.2d 480, 483 (Ala.Civ.App.2005) (stating that a sheriffs deputy is an employee of the state and not of the county). The County’s motion to dismiss also asserted that the County was not liable to the plaintiffs based upon the theory of negligent entrustment because, the County said, the County is required by state law to furnish the Sheriffs Department with automobiles. See § 36-22-18, Ala.Code 1975 (“The county commission shall ... furnish the sheriff with ... automobiles and necessary repairs, maintenance and all expenses incidental thereto_”).

After Cumse and the County filed them motions to dismiss, the plaintiffs amended their complaint to strike paragraph 7. The trial court subsequently granted the motions to dismiss. The plaintiffs appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the plaintiffs argue that the trial court erred in dismissing their claims against Cumse and the County-

“ ‘The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether “when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.” Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A “dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (AJa.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’ ”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1017 (Ala.2003) (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003)). “In considering whether a complaint is sufficient to withstand a motion to dismiss, this Court must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Hous., L.L.C., 828 So.2d 285, 288 (Ala. 2002).

The Claims Against Cumse

In his motion to dismiss, Cumse asserted that he was entitled to State immunity because, he said, he was a deputy sheriff acting within the line and scope of his employment when the alleged accident occurred. With certain exceptions, a sheriff or deputy sheriff acting within the line and scope of his or her employment is entitled to State immunity. Ex parte Haralson, 871 So.2d 802, 805-06 (Ala. 2003); and Ex parte Sumter County, 953 So.2d 1235, 1239-40 (Ala.2006). However, the plaintiffs’ amended complaint does not allege that Cumse was a deputy sheriff acting within the line and scope of his employment when the alleged accident occurred. The complaint alleges that the purported accident occurred when the plaintiffs were being transported “while in the custody of the ... Sheriffs Department” and that Cumse was driving the vehicle in which the plaintiffs were being transported. Although the complaint may imply that Cumse was a deputy sheriff performing his employment duties at the time of the alleged accident, the complaint is unclear in this respect. Viewing the allegations of the complaint most strongly in the plaintiffs’ favor, we cannot say that the plaintiffs could not possibly prevail on their negligence and wantonness claims. Therefore, the trial court erred in dismissing those claims against Cumse.

The Claims Against the County

Paragraph 9 of the complaint alleges a claim of negligent entrustment against the County. In moving to dismiss, the County argued that it could not be liable for negligent entrustment because, the County said, Cumse is a deputy sheriff and the County is required by state law to provide the Sheriffs Department with automobiles. However, as noted, the complaint does not clearly allege that Cumse is an employee of the Sheriffs Department. The allegations of the complaint are unclear regarding the identity of Cumse’s employer. Therefore, the trial court could not have properly dismissed the negligent-entrustment claim based on the County’s assertion that it was statutorily obligated to provide Cumse, as a deputy sheriff, with an automobile. Based on the limited factual allegations contained in the complaint, it does not appear beyond doubt that the plaintiffs cannot possibly prevail on their negligent-entrustment claim. Accordingly, we must conclude that the trial court erred in dismissing that claim.

Paragraph 10 of the complaint alleges, in pertinent part:

“[T]he ... County[ ] was the owner of said motor vehicle driven by ... Cumse, and as such[, the County] had the authority to supervise the maintenance, operation and repair of said motor vehicle, including the restraining of passengers in said motor vehicle, and the hiring and training of drivers of motor vehicles operated by or on behalf of [the] County. [The] Countyf ] negligently and/or wantonly exercised or failed to exercise said supervisory control, and said negligent or wanton conduct was the proximate cause of the injuries of the plaintiffs.”

Insofar as paragraph 10 may be read as alleging a claim of negligent or wanton supervision of Cumse, we again note that the allegations of the complaint are unclear regarding the identity of Cumse’s employer. Therefore, we cannot say whether the County could have exercised any supervisory control over Cumse. It may be that the County had no supervisory authority over Cumse; the allegations of the complaint, however, are unclear in this respect. Therefore, insofar as the complaint may be read as alleging a claim of negligent or wanton supervision of Cumse, the trial court erred in dismissing that claim.

Paragraph 10 may be also be read as alleging a direct claim against the County for the negligent or wanton maintenance of the automobile in which the plaintiffs were allegedly injured. The complaint alleges that the County owned that automobile. Accepting that allegation as true, the plaintiffs could conceivably prevail on a claim against the County alleging negligent or wanton maintenance of the automobile. Therefore, insofar as the complaint may be read as alleging such a claim, the trial court erred in dismissing it.

Conclusion

We reverse the judgment dismissing the plaintiffs’ claims against Cumse and the County, and we remand the case to the trial court.

REVERSED AND REMANDED.

BRYAN and MOORE, JJ., concur.

THOMAS, J., concurs specially, which PITTMAN, J., joins.

THOMPSON, P.J., concurs in the result, without writing.

THOMAS, Judge,

concurring specially.

The law provides, subject to certain exceptions not relevant here, that a sheriffs deputy, as the alter ego of the sheriff, “ ‘is immune from suit, in his official capacity, for negligent performance of his statutory duties.’ Alexander [v. Hatfield,] 652 So.2d [1142,] 1143 [ (Ala.1994) ]; Parker [v. Amerson,] 519 So.2d [442,] 442-43 [(Ala. 1987) ]; Wright v. Bailey, 611 So.2d 300, 303 (Ala.1992).” Ex parte Haralson, 853 So.2d 928, 932 (Ala.2003). Thus, if Michael Anthony Cumse is a sheriffs deputy and he was acting in the line and scope of his employment at the time of the alleged accident that injured the plaintiffs, he would be entitled to State immunity. See Ex parte Haralson, 871 So.2d 802, 806 (Ala.2003) (“[I]f Deputy Haralson was acting within the line and scope of his duties at the time of the accident, he would be entitled to State immunity .... ”). Based on the allegations in the complaint, which do not clearly identify Cumse as a deputy sheriff, however, the trial court could not possibly conclude that Cumse was a deputy sheriff or that he was entitled to State immunity.

The allegations of the amended complaint, which Cumse admitted, establish only that he was driver of the vehicle in which the plaintiffs were passengers and that the plaintiffs were in the custody of the Colbert County Sheriffs Department at the time of the accident. Those admissions fail to establish that Cumse is a deputy sheriff or that he was acting in the line and scope of his employment. The statements in Cumse’s motion to dismiss are insufficient to do so. Carver v. Foster, 928 So.2d 1017, 1025 (Ala.2005) (holding that statements of counsel in briefs are not evidence). Had Cumse filed an affidavit attesting to the fact that he was a deputy sheriff and that he was acting in the line and scope of his duties, the court would have had sufficient evidence upon which to conclude that Cumse was entitled to State immunity. Without that proof, however, the trial court had no basis upon which to dismiss the complaint as to Cumse.

Because the allegations of the complaint do not reveal the identity of Cumse’s employer, I agree with the conclusion in the main opinion that most of the claims against Colbert County, which in large part hinged on its argument that Cumse was a deputy sheriff and therefore not employed by the County, were not properly dismissed. I also agree with the conclusion in the main opinion that the facts alleged in the complaint are sufficient to state a possible claim of negligent or wanton maintenance of the vehicle in which the plaintiffs were injured; therefore, the dismissal of that possible claim was improper as well.

PITTMAN, J., concurs.

      . Cumse styled his motion to dismiss as a Rule 12(b)(6), Ala. R. Civ. P., motion. However, ‘‘[t]he substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997). Because Cumse's motion asserted that the trial court lacked subject-matter jurisdiction on the basis of State immunity, that motion was in substance a Rule 12(b)(1), Ala. R. Civ. P., motion. See Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007); and Ex parte Alabama Dep't of Transp., 978 So.2d 718, 720 (Ala.2007).

      . The County does not argue that it is entitled to State immunity. Our supreme court has stated:
      “Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state, see, e.g., Armory Comm’n of Alabama v. Staudt, 388 So.2d 991, 993 (Ala.1980), but generally does not extend to counties or county agencies, see, e.g., Wassman v. Mobile County Communications Dist., 665 So.2d 941, 943 (Ala. 1995), or to municipalities or municipal agencies, see Jackson v. City of Florence, 294 Ala. 592, 600, 320 So.2d 68, 75 (1975). Nevertheless, when a county or municipality acts as an agent of the state, it is entitled to share in the state's absolute immunity. See Town of Loxley v. Coleman, 720 So.2d 907, 908-09 (Ala. 1998); Rutledge v. Baldwin County Comm’n, 495 So.2d 49, 53 (Ala.1986)."

        Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000).

      . Because State immunity deprives a trial court of subject-matter jurisdiction, Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007), I agree with the main opinion that Cumse's motion is more properly considered a motion made pursuant to Rule 12(b)(1), Ala. R. Civ. P. Attaching an affidavit to a Rule 12(b)(1) motion attacking the trial court's subject-matter jurisdiction does not convert the motion into one for a summary judgment. Williams v. Skysite Commc'ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000). I note that, because a deputy sheriff enjoys immunity for those acts performed within the line and scope of his or her duties, and because the amended complaint withdrew the allegation that Cumse was acting in the line and scope of his employment, Cumse's affidavit would have had to have alleged, in addition to his status as a deputy sheriff, facts to establish that his actions were in the line and scope of his duties to establish that he was entitled to State immunity. Ex parte Haralson, 871 So.2d at 806. Thus, because the facts underlying the question whether Cumse was acting in the line and scope of his duties might be disputed, a Rule 12(b)(1) motion may not have been the most appropriate vehicle by which to establish Cumse’s immunity.


author: BRYAN, Judge.

text:
    MONTGOMERY COUNTY BOARD OF EDUCATION v. Hosea ADDISON.
    2070294.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.
    Jayne Harrell Williams of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Juraldine Battle-Hodge, Montgomery, for appellee.
   BRYAN, Judge.

The Montgomery County Board of Education (“the Board”) appeals from the trial court’s denial of the Board’s motion to set aside a default judgment entered in favor of Hosea Addison. We reverse and remand.

Addison, a former employee of the Board, filed a complaint against the Board, alleging breach of contract. After the Board failed to answer or otherwise respond, Addison moved for a default judgment, pursuant to Rule 55, Ala. R. Civ. P. The trial court subsequently entered a default judgment against the Board in the amount of $47,508.84. The Board moved to set aside the default judgment, asserting, among other things, that it had not been properly served with process; the trial court denied that motion. The Board appealed.

On appeal, the Board argues that the trial court should have set aside the default judgment because, the Board says, it was not properly served with process. Rule 4(c)(8), Ala. R. Civ. P., establishes the procedure for service of process in this case. It provides, in pertinent part:

“(c) Upon Whom Process Served. Service of process, except service by publication as provided in Rule 4.3, shall be made as follows:
“(8) Local Governments and Other Governmental Entities. Upon a county, municipal corporation, or any other governmental entity not previously mentioned, or an agency thereof, by serving the chief executive officer or the clerk, or other person designated by appointment or by statute to receive service of process, or upon the attorney general of the state if such service is accompanied by an affidavit of a party or the party’s attorney that all such persons described therein are unknown or cannot be located.”

In this case, Tom Salter, an employee of the Board, was served with the summons and complaint. The Board maintains that service on Salter did not constitute proper service under Rule 4(c)(8). Both parties contend that Salter is employed by the Board, but the record on appeal is unclear regarding Salter’s position with the Board. Addison asserts that Salter is the marketing director for the Board and an officer of the Board. Even assuming that Salter holds those positions with the Board, service on him would not have effected service on the Board. Addison maintains that the Board was effectively served by the serving of Salter and that Salter should be considered an agent of the Board for purposes of service. However, “strict compliance with the rules regarding service of process is required.” Ex parte Pate, 673 So.2d 427, 429 (Ala.1995). Nothing in the record indicates that Salter is the chief executive officer of the Board or that he has been designated by appointment or by statute to receive service of process for the Board. See Rule 4(c)(8). Further, the record does not indicate that the attorney general was served with process and an accompanying affidavit attesting that the individuals upon whom service would be proper under Rule 4(c)(8) are unknown or cannot be located. Accordingly, service was not perfected upon the Board.

“Failure of proper service under Rule 4 deprives a court of [personal] jurisdiction and renders its judgment void. Shaddix v. Shaddix, 603 So.2d 1096 (Ala. Civ.App.1992).... A void judgment must be set aside. Smith[ v. Clark, 468 So.2d 138 (Ala.1985) ].” Ex parte Pate, 673 So.2d at 428-29. Because service was not perfected upon the Board, the default judgment entered against the Board is void. Therefore, the trial court erred in failing to set aside the default judgment, and the default judgment is due to be reversed. See also Seleo, S.R.L. v. Webb, 727 So.2d 796, 800 (Ala.1998) (stating that a default judgment was void due to lack of service and reversing the default judgment).

We note also that “default judgments are not favored by the courts, and that discretion to grant [a default judgment] should be resolved in favor of the defaulting party when there is doubt as to the propriety thereof.” Colvin v. Colvin, 628 So.2d 802, 803 (Ala.Civ.App.1993). Cf. Committee Comments to August 1, 1992, Amendment to Rule 4(c)(1) (stating, in the context of serving an individual’s “agent,” that “courts should be vigilant to protect the rights of defendants when default judgments are entered on the basis of service upon an agent of the defendant. On motion to set aside a default or on motion for relief from a default, where service has been attempted on a person alleged to be or purporting to be an agent, no presumption of agency should be indulged in with respect to such service and the court should be satisfied that the' person upon whom service was attempted was in fact the authorized agent of the defendant before refusing to grant relief from a default judgment.”); and Colvin, supra (reversing a default judgment due to lack of service on an individual and quoting the Committee Comments to August 1, 1992, Amendment to Rule 4(c)(1)).

Because service of process was not properly made on the Board pursuant to Rule 4(c)(8), the trial court lacked jurisdiction over the Board. Ex parte Pate, 673 So.2d at 428. Accordingly, the trial court’s default judgment is void and should have been set aside by the trial court. Id. at 429. Therefore, we reverse the judgment, and we remand the case.

REVERSED AND REMANDED.

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

      . Presumably, the reference in Rule 4(c)(8) to "the clerk” refers to local governments, such as municipalities, that employ clerks. At any rate, the record does not indicate that Sailer served as "the clerk” for Board.


text:
    SCHEER HOMES, INC., and Kurt Scheer v. Richard M. HILLS and Hills Real Estate.
    2070217.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.

      Roy M. West of Manly & Manly Attorneys, Birmingham, for appellants.
    Matthew J. Meloun, Birmingham, for appellees.
   BRYAN, Judge.

In this interpleader action, Scheer Homes, Inc., and Kurt Scheer (hereinafter referred to collectively as “Scheer”) appeal from a judgment in favor of Richard M. Hills and Hills Real Estate (hereinafter referred to collectively as “Hills”). We reverse the trial court’s judgment and remand the ease to the trial court for further proceedings consistent with this opinion.

On June 9, 2006, Hills Real Estate and Kurt Scheer entered into a written contract (“the contract”) regarding the sale of the Stratford Arms apartments (“the Property”) in Birmingham. In pertinent part, the contract provided:

“The undersigned Buyer(s) Hills Real Estate and/or Assigns hereby agrees to purchase and the undersigned Seller(s) Kurt Scheer hereby agrees to sell the following described real estate, together with all improvements, shrubbery, plantings, fixtures and appurtenances (the ‘Property’) situated in the City of Birmingham, County of Jefferson, Alabama, on the terms stated below:
“Property Name: Stratford [Arms] Apartments Address: 1000 18th Street South Zip Code: 35205
“1. THE TOTAL PURCHASE PRICE OF THE PROPERTY SHALL BE $910,000
“Earnest Money under this Contract shall be (see paragraph 3 below) $25,000 “2. CLOSING & POSSESSION DATE: The sale shall be closed and the deed delivered on or before sixty (60) days from [June 9, 2006]....
“3. EARNEST MONEY, BUYER’S DEFAULT & SELLER’S DEFAULT: Seller and Buyer hereby direct Lawyers Title (hereinafter referred to as ‘Escrow Agent’) to hold the Earnest Money in escrow pursuant to the provisions of this Contact. Buyer shall deposit the Earnest Money with the Escrow Agent .... In the event either Buyer or Seller claims the escrowed funds without the agreement of the other party, any holder of the escrowed funds may either (i) retain the escrowed funds until there is a written mutual release among the parties, (ii) interplead the disputed portion of the funds into the appropriate court, and shall be entitled to deduct from the escrowed funds for count costs, attorney fees and other expenses relating to the interpleader, or (iii) deliver the es-crowed funds to the party which the Escrow Agent believes in good faith is entitled thereto. ... In the event of default by Buyer, the Earnest Money shall be forfeited as liquidated damages as Seller’s sole remedy, specific damages being impossible to ascertain. In the event of default by Seller, Buyer shall be entitled to the remedy of specific performance or Buyer may terminate this Contract and receive a return of the Earnest Money as Buyer’s sole and exclusive remedies.
“9. CONDITION OF THE PROPERTY: NEITHER SELLER NOR ANY BROKER OR SALES ASSOCIATE MAKES ANY REPRESENTATIONS NOR WARRANTIES REGARDING CONDITIONS OF THE PROPERTY EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN. Buyer has the obligation to determine any and all conditions of the Property material to Buyer’s decision to purchase the Property, including, without limitation, ... any matters affecting the character of the neighborhood. ...
“13. SELLER WARRANTY: Seller warrants that seller has not received notification from any owners association or lawful authority regarding any assessments that remain unpaid, pending assessments, or pending public improvements, repairs, replacements, or alterations to the Property. Seller warrants that there is no unpaid indebtedness on the Property except as described in this Contract or which shall be paid at closing from the proceeds of the Purchase Price.
“21. MISCELLANEOUS: ... (d) If either party shall employ an attorney to enforce rights hereunder, the prevailing party in any court action or legal proceeding brought by either party shall be entitled to attorney’s fees and costs incurred in bringing any action or asserting defenses thereto, in addition to any other remedies or damages awarded in such action. ... (f) It shall be a condition to Buyer’s obligation to close that Seller’s material representations and warranties under this Contract be materially true when made and as of the closing date.”

(Emphasis added.)

In accordance with the contract, Hills delivered earnest money in the amount of $25,000 to Lawyers Title Insurance Corporation to be held in escrow. The parties subsequently scheduled the closing of the sale for August 25, 2006.

Meanwhile, Alabama Power Company (“APC”), which owns the parcel of land that abuts the southern boundary of the Property, decided to build an electrical power substation on the parcel to the south of the Property. Although the record does not specify the date when APC decided to build that electrical power substation, it indicates that that date was sometime before June 19, 2006. The record establishes that, by June 19, 2006, Scheer had learned of APC’s decision to build the electrical power substation but did not inform Hills until August 23, 2006, two days before the scheduled closing of the sale of the Property. After learning that APC had decided to build the electrical power substation on the parcel to the south of the Property, Hills refused to close the sale of the Property. Subsequently, Scheer and Hills each demanded payment of the earnest money from Lawyers Title.

In September 2006, pursuant to Rule 22, Ala. R. Civ. P., Lawyers Title commenced this interpleader action, seeking an order requiring Scheer and Hills to interplead their claims to the earnest money for adjudication. Contemporaneously, Lawyers Title moved the trial court to allow it to pay the earnest money to the trial court clerk for deposit in an interest-bearing account pending the adjudication of the parties’ claims to the earnest money. The trial court granted that motion, and Lawyers Title paid the earnest money to the trial court clerk, who deposited it into an interest-bearing account.

Hills filed a cross-claim against Scheer, stating claims of breach of contract, fraud, deceit, and suppression. Hills alleged that Scheer, by failing to disclose to Hills, before Hills entered into the contract, that APC had decided to build an electrical power substation on the parcel to the south of the Property, had breached paragraph 13 of the contract and had committed the torts of fraud, deceit, and suppression. As relief for the alleged breach of paragraph 13 of the contract, Hills sought to recover (1) the earnest money, (2) various expenses Hills had allegedly incurred in connection with the sale of the Property, and (3) an attorney fee and other costs. As relief for the alleged torts, Hill sought punitive damages as well as the relief it sought for the alleged breach of paragraph 13 of the contract.

Scheer filed a cross-claim against Hills, alleging that Hills had breached the contract by refusing, without justification, to close the sale. As relief for the alleged breach of contract, Scheer sought recovery of the earnest money as liquidated damages.

Upon the motion of Lawyers Title, the trial court dismissed Lawyers Title from the action; awarded Lawyers Title an attorney fee and costs totaling $3,305.70; ordered the trial court clerk to pay Lawyers Title that $3,305.70 from the inter-pleaded funds; realigned Hills as the plaintiff in the action; and certified its order making those rulings as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

Scheer moved the trial court for a summary judgment with respect to (1) its claim against Hills and (2) Hills’s claim against Scheer. As the ground of its summary-judgment motion, Scheer asserted that it was not obligated to inform Hills of APC’s decision to build the electrical power substation because (1) the electrical power substation was to be built on the parcel to the south of the Property rather than on the Property itself and (2) paragraph 13 of the contract only obligated Scheer to inform Hills of pending public improvements if they were to be built on the Property itself.

Hills moved the trial court for a partial summary judgment solely on the issue of who was entitled to the earnest money. Hills asserted that it was entitled to a partial summary judgment determining that it was entitled to the earnest money because, it argued, paragraph 13 required Scheer to disclose that APC had decided to build the electrical power substation on the parcel to the south of the Property.

Following a hearing on the motions and the submission of briefs by the parties, the trial court, on October 11, 2007, entered an order (1) granting Hills’s partial-summary-judgment motion, (2) awarding Hills the earnest money, (3) denying Scheer’s summary-judgment motion, and (4) giving Hills 20 days to file a motion seeking the recovery of an attorney fee pursuant to paragraph 21(d) of the contract. Explaining the rationale for its ruling, the trial court stated:

“Conclusions of Law

“1. Paragraph 13 is a contractual modification, assented to and bargained for by the parties, to the common-law rule of caveat emptor which applies when purchasing used real property. Moore v. Prudential Residential Services, 849 So.2d 914 ([Ala.] 2002).
“2. Paragraph 13 contains Seller’s warranties that survive closing and addresses pending public improvements. The court specifically finds that the electrical power substation at issue in this case is a pending public improvement to the property because the public improvement on the adjoining property is a substantial deviation from the adjoining property’s current use, and thus this said public improvement affects the subject parcel and is subject to paragraph 13 of the sales contract.”

Within 20 days after October 11, 2007, Hills moved the trial court to award it an attorney fee in the amount of $6,893 for services provided by Hills’s attorney in this action and to tax as costs payable by Scheer the $3,305.70 the trial court had previously ordered the trial court clerk to pay Lawyers Title from the earnest money. On October 29, 2007, the trial court entered an order granting Hills’s motion in its entirety and certifying that that order was a final judgment pursuant to Rule 54(b). Scheer then timely appealed to this court.

On appeal, Scheer argues that the trial court erred in granting Hills’s summary-judgment motion because, it says, under the doctrine of caveat emptor, it was not obligated to disclose to Hills that APC had decided to build an electrical power substation on the parcel to the south of the Property and because paragraph 13 did not contractually obligate it to disclose to Hills that APC had made that decision. We agree.

“ We review a summary judgment de novo.’” Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003) (quoting Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala. 2002)). Subject' to certain exceptions not applicable in the case now before us, the doctrine of caveat emptor applies to the sale of used real estate in Alabama. See Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002). Thus, in the absence of an obligation assumed by Scheer in the contract, Scheer had no obligation to disclose to Hills that APC had decided to build an electrical power substation on the parcel to the south of the Property.

In determining whether Scheer assumed a contractual obligation to disclose to Hills that APC had decided to build an electrical power substation on the parcel to the south of the Property, we are governed by the following principles:

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. See Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993). Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala. 1998). If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written. See id. at 36; Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997). On the other hand, if the court determines that the terms are ambiguous (susceptible of more than one reasonable meaning), then the court must use established rules of contract construction to resolve the ambiguity....”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000).

In the case now before us, the language of paragraph 13 of the contract states that Seheer must disclose to Hills “pending public improvements, repairs, replacements, or alterations to the Property.” (Emphasis added.) The contract defines “the Property” as the Stratford Arms apartments; the contract does not state that “the Property” includes the parcel to the south of the Property. Moreover, paragraph 9 of the contract specifically provides that Hills, as the buyer, must determine whether there are “any matters affecting the neighborhood” that would affect its decision to purchase the Property. Accordingly, we conclude that the unambiguous language of the contract states that Seheer was not contractually obligated to disclose to Hills that APC had decided to build an electrical power substation on the parcel to the south of the Property because the parcel to the south of the Property is not part of the Property itself; rather the parcel to the south of the Property is part of the neighborhood surrounding the Property. Thus, the trial court erred in concluding that paragraph 13 contractually obligated Seheer to disclose to Hills that APC had decided to build an electrical power substation on the parcel to the south of the Property. Therefore, we reverse the trial court’s judgment and remand the action to the trial court for further proceedings consistent with this opinion.

Because we have resolved this appeal on the basis of the first argument presented in Scheer’s brief, we do not reach the other argument presented in its brief.

REVERSED AND REMANDED.

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

      . The underlying action was an interpleader action instigated by Lawyers Title Insurance Corporation. Although Hills Real Estate and Kurt Scheer were the parties to the contract, Lawyers Title named, among others, Scheer Homes, Inc.; Kurt Scheer; Hills Real Estate; and Richard M. Hills as defendants in the interpleader action. It is unclear from the record what the relationship is between Kurt Scheer and Scheer Homes, Inc., or what the relationship is between Richard M. Hills and Hills Real Estate; moreover, it is unclear why Lawyers Title named Scheer Homes, Inc. and Richard M. Hills as defendants in the inter-pleader action. However, all four parties participated in the proceedings below and purport to be parties on appeal.

      . Lawyers Tide also sought an order requiring Rock Apartment Advisors to interplead a claim to the earnest money. However, Rock Apartment Advisors, which had acted as an agent for Scheer in its efforts to sell the Property, denied that it had a claim to any of the earnest money and sought dismissal from this action. The trial court dismissed Rock Apartment Advisors, and it is not a party to this appeal.


text:
    Betty GRIFFIN v. PRIME HEALTHCARE CORPORATION d/b/a Lafayette Extended Care, LLC.
    2060705.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2008.

      Timothy L. Dillard and Stewart S. Wil-banks of Dillard & Associates, L.L.C., Birmingham, for appellant.
    Stanley A. Martin, S. Allen Martin, Jr., and Christopher M. Bazzell, Opelika, for appellee.
   THOMAS, Judge.

Betty Griffin (“the employee”) was employed by Prime Healthcare Corporation d/b/a Lafayette Extended Care, LLC (“the employer”). In April or May 2003, the employee was allegedly injured in the line and scope of her employment. She sued the employer and several fictitiously named defendants in November 2004, seeking an award of workers’ compensation benefits. In May 2006, the employer filed a motion for a summary judgment, arguing that the employee’s injury occurred outside the scope of her employment, specifically during an incident of horseplay. The employee responded to the employer’s motion. The trial court entered a summary judgment in favor of the employer on September 26, 2006; however, the trial court set that judgment aside on the employee’s postjudgment motion. After a later hearing on the employer’s summary-judgment motion, the trial court again entered a judgment in favor of the employer. The employee appealed that judgment.

The trial court’s summary-judgment order states, in its entirety:

“This matter came before the Court for hearing on a Motion for Summary Judgment filed by the [employer] with counsel for both parties being present before the Court. After hearing and considering the argument of counsel, it is hereby Ordered as follows:
“IT IS ORDERED, ADJUDGED and DECREED that based upon the pleadings and affidavits, the Court finds that there is no genuine issue of material fact and the [employer’s] Motion for Summary Judgment is due to be GRANTED. Judgment is hereby rendered in favor of [the employer] as to all counts and allegations against [the employer] by [the employee].
“The Court further determines that there is no just reason for delay of the appellate process in that this judgment completely disposes of all claims against [the employer]; therefore said judgment is final as to [the employer].
“The Clerk of the Court is to mail a copy of this Order to counsel of record and any party appearing pro se.”

This court has long required summary-judgment orders in workers’ compensation cases to comply with Ala.Code 1975, § 25-5-88, which requires written findings of fact and conclusions of law in workers’ compensation judgments. Nelson v. Dollar Gen. Corp., 900 So.2d 1248, 1248 (Ala. Civ.App.2004); Sheffield v. Choctaw Transp., Inc., 891 So.2d 344, 345 (Ala.Civ. App.2004); Casteel ex rel. Johnson v. Wal-Mart Stores, Inc., 828 So.2d 331, 332 (Ala. Civ.App.2002); Carr v. Added Dimensions No. 72 Brookwood, Inc., 772 So.2d 473, 475 (Ala.Civ.App.2000); and Farris v. St. Vincent’s Hosp., 624 So.2d 183, 185 (Ala.Civ. App.1993). The summary-judgment order in the present case does not contain the required findings or conclusions. Therefore, we reverse the judgment and remand the cause for the entry of a judgment in compliance with § 25-5-88.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      1. Because no defendants were ever substituted for the fictitiously named defendants, the existence of those unserved and unnamed defendants did not preclude the finality of the judgment, and the Rule 54(b), Ala. R. Civ. P., certification entered by the trial court was unnecessaiy. See Rule 4(f), Ala. R. Civ. P. ("When there are multiple defendants and the summons ... and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.”); and Rule 54(b), Ala. R. Civ. P.; see also Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984); and Thompson v. Williams, 752 So.2d 525, 526 n. 1 (Ala.Civ. App.1999).