author: LYONS, Justice.

text:
    Gail FOSTER v. PORTER BRIDGE LOAN COMPANY, INC.
    1080166.
    Supreme Court of Alabama.
    July 17, 2009.

      David N. Cutchen of Corstman & Cutchen, LLP, Birmingham, for appellant.
    Jim H. Wilson of Leitman, Siegal & Payne, P.C., Birmingham, for appellee.
   LYONS, Justice.

Gail Foster appeals from the denial of her postjudgment motion to alter, amend, or vacate a summary judgment entered in favor of Porter Bridge Loan Company, Inc. (“Porter”), in Foster’s declaratory-judgment action. We affirm.

Factual Background and Procedural History

The material facts of this case are undisputed. Jessie Derrell McBrayer, an attorney, owned real property in Jefferson County (“the property”). In October 2003, Ocean Bank recorded a mortgage on the property. Ocean Bank assigned its mortgage to Yale Mortgage Corporation (‘Yale”) in October 2004; the parties do not dispute that Yale recorded that mortgage. In December 2005, Foster, a former client of McBrayer’s, obtained a judgment against him in the amount of $428,000. On January 8, 2006, Foster recorded the judgment pursuant to § 6-9-210, Ala.Code 1975, and thereby obtained a hen against the real property pursuant to § 6-9-211, Ala.Code 1975 (“the judgment lien”). It is undisputed that she obtained the judgment against McBrayer, identifying him as “Derrell McBrayer.”

In late 2005 or early 2006, McBrayer applied to Porter for a loan to refinance the existing mortgage held by Yale (“the Yale mortgage”). On January 23, 2006, while Porter was processing the loan application, Land Title Company of Alabama (“Land Title”) conducted a title search of the property for the purpose of issuing title insurance. Although it conducted a search using the name “Derrell McBrayer,” Land Title did not locate the judgment lien, and, as a result, Porter did not gain actual knowledge of it before approving the loan application.

Porter lent McBrayer $592,000 to refinance the Yale mortgage. The loan closed on February 1, 2006; the Yale mortgage was paid in full; the proceeds remaining after the mortgage was paid — $48,000— were distributed to McBrayer. At the loan closing, McBrayer executed an affidavit affirming that there were no judgments or liens pending against him. Specifically, McBrayer affirmed: “That there are no pending suits, proceedings, judgments, bankruptcies, liens or executions against said owner, either in [Jefferson] county or any other county in [Alabama].” McBrayer also executed an affidavit stating that he did not have notice of any judgment having been filed against him. In that affidavit, McBrayer affirmed: “I have always been known as J. Derrell McBrayer, and have never been known by any other name. I do not have any unpaid obligations except current bills, neither have I received any notice of any suit judgments having been filed against me.” Porter received a mortgage on the property securing the loan. Porter recorded its mortgage (“the Porter mortgage”) on February 8, 2006. Porter first learned of the judgment lien in June 2006. By July 2006, McBrayer had defaulted on the loan.

On December 4, 2006, Foster filed a complaint against Porter in the Jefferson Circuit Court seeking a judgment declaring that the judgment lien was superior to the Porter mortgage. Porter moved for a summary judgment, arguing that a declaration that the judgment hen had priority over the Porter mortgage would grant Foster a windfall to which she was not entitled. Porter also argued that, under the doctrine of equitable subrogation, it was entitled to assume Yale’s undisputed position of priority over the judgment lien. On May 22, 2008, the trial court entered a summary judgment in favor of Porter, finding that the doctrine of equitable sub-rogation applied and that, as a result, the Porter mortgage had priority over the judgment lien. Foster moved to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P. After a hearing, the trial court denied the motion on September 12, 2008. Foster appealed.

Standard of Review

“Whether to grant relief under Rule 59(e), Ala. R. Civ. P., is within the trial court’s discretion.” Bradley v. Town of Argo, 2 So.3d 819, 823 (Ala.2008). However, when the facts are undisputed and the “ ‘ruling [is] a reconsideration of a question of law, ... the standard of review is de novo.’ 2 So.3d at 824 (quoting Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem. & Energy Workers Int’l Union Local 4-487, 328 F.3d 818, 820 (5th Cir.2003), applying the analogous Rule 59(e), Fed.R.Civ.P.).

Analysis

Generally, when a judgment creditor obtains a lien against property pursuant to §§ 6-9-210 and -211, Ala. Code 1975, the judgment creditor “is protected against subsequently recorded instruments .... Smith v. Arrow Transp. Co., 571 So.2d 1003, 1006 (Ala.1990) (emphasis added); see also § 35-4-90, Ala. Code 1975. Accordingly, Foster contends that the judgment lien, which she recorded on January 3, 2006, has priority over the Porter mortgage, which was recorded on February 8, 2006.

Porter admits that its mortgage was recorded after the judgment lien. However, it contends that it is entitled to assume Yale’s position of priority under the doctrine of equitable subrogation. This Court has stated the elements of equitable subrogation as follows:

“(1) The loan or advancement must have been made and used to pay off the debt secured by the prior lien and it is the lender’s duty to see that the money is so applied, for the right of subrogation does not arise when the money advanced is to be applied at the discretion of the debtor; (2) the parties must contemplate that the lender will have security of equal dignity with the lien discharged by the payment; (3) the whole debt must be paid before subrogation can be enforced, that is, pro tanto subrogation is not recognized; (4) the lender at the time of the loan must be ignorant of the intervening lien or encumbrance and such ignorance must not be the consequence of culpable negligence; (5) the intervening lienor must not be burdened or embarrassed.”

Federal Land Bank of New Orleans v. Henderson, Black & Merrill Co., 253 Ala. 54, 59, 42 So.2d 829, 833 (1949). See also Ex parte Lawson, 6 So.3d 7, 12 (Ala.2008).

The parties disagree regarding the correct application of the fourth element of equitable subrogation — ignorance of the lender at the time of the loan as to the intervening lien — to the circumstances presented in this case. Porter contends that because it did not have actual knowledge of the judgment hen, the fourth element is satisfied. Foster contends that the fourth element is not satisfied because, she argues, Porter had constructive notice of the judgment lien pursuant to § 6-9-211, which provides, in part: “The filing of [a] certificate of judgment, as provided in Section 6-9-210, shall be notice to all persons of the existence of the lien thereby created.” The question whether the doctrine of equitable subrogation may apply to subordinate a judgment lien to a lien evidenced by an instrument filed after the judgment hen is a question of first impression for this Court.

This Court has previously held that constructive notice of an intervening encumbrance is not sufficient to preclude the operation of the doctrine of equitable sub-rogation. In Whitson v. Metropolitan Life Insurance Co., 225 Ala. 262, 142 So. 564 (1932), this Court explained:

“The rule established by the weight of authorities, however, is that one who advances money to discharge a prior incumbrance at the instance of the mortgagor need not exercise the highest degree of care to discover an intervening incumbrance of the title, and mere constructive notice, imputed from the existence of recordation, is not sufficient to preclude him from invoking the doctrine of equitable subrogation in the absence of culpable negligence. He must, however, be ignorant of such intervening incumbrance or right, and cannot shut his eyes and ignore facts brought to his knowledge, reasonably sufficient to invite diligent inquiry, which, if followed, would result in actual knowledge.”

225 Ala. at 266, 142 So. at 567-68 (emphasis added); see also Federal Land Bank, 253 Ala. at 60-61, 42 So.2d at 834 (applying the above-quoted rule when refinancing mortgagee did not have actual knowledge of an intervening mortgage).

Similarly, in Brooks v. Resolution Trust Corp., 599 So.2d 1163 (Ala.1992), a case in which the mortgagee satisfying a vendor’s lien was ignorant of an intervening mortgage, this Court applied the principles stated in Whitson. This Court stated:

“In Shields v. Hightower, 214 Ala. 608, 108 So. 525 (1926), this Court cited with approval the following rule: ‘ “[W]hen a purchaser pays off a prior incumbrance as a part of the purchase price without actual notice of a junior lien, ... equity will treat him as the assignee of the original incumbrance, and will revive and enforce it for his benefit.” ’ Id. at 610-11, 108 So. at 528 (quoting 25 R.C.L. 1353). (Emphasis added.) ‘ “Having caused the same to be satisfied under circumstances authorizing an inference of mistake of fact, equity will presume such mistake in order to give the party the benefit of the equitable right of subrogation, and, in so doing, prevent manifest injustice and hardship, without interfering with intervening equities.” ’ Id. ....
“It must be noted that the Court’s reference in Shields to ‘actual notice’ was made only in passing. Nevertheless, it is clear that in order to qualify for relief under this doctrine, one ‘need not exercise the highest degree of care to discover an intervening incumbrance of the title, and mere constructive notice, imputed from the existence of re-cordation, is not sufficient to preclude him from invoking the doctrine of equitable subrogation in the absence of culpable negligence.’ Whitson v. Metropolitan Life Ins. Co., 225 Ala. 262, 266, 142 So. 564, 567 (1932) (emphasis added); see also 73 Am.Jur.2d Subrogation § 104 (1974).”

599 So.2d at 1064-65. Further, in explaining the burdens applied to the parties in Brooks under the doctrine of equitable subrogation, this Court stated:

“Because the rule requires more than ‘constructive notice, imputed from the existence of recordation,’ to deny subro-gation upon mere proof that a recorded encumbrance was overlooked would effectively eviscerate the rule. In other words, something more than simple negligence is required. In re Hubbard, 89 B.R. 920 (Bankr.N.D.Ala.1988). Moreover, once the party seeking subrogation has made a prima facie showing of absence of knowledge or notice, the burden shifts to the party opposing subrogation to prove that the purchasers’ ignorance resulted from ‘culpable neglect.’ Whitson v. Metropolitan Life Ins. Co., 225 Ala. 262, 266, 142 So. 564, 568 (1932).”

599 So.2d at 1165.

Whitson and Brooks demonstrate the position of this Court that constructive notice generally will not preclude the application of the doctrine of equitable subrogation. This position is consistent with a majority of other courts. The Supreme Court of Colorado aptly explained the majority, minority, and Restatement views in Hicks v. Londre, 125 P.3d 452 (Colo.2006).

“With regard to knowledge, the majority of courts that have considered the issue hold that ‘actual knowledge [of an intervening lien] precludes the application of equitable subrogation, but constructive knowledge does not.’ Bank of New York [v. Nally ], 820 N.E.2d [644,] 652 [ (Ind.2005) ]; Houston [v. Bank of America Fed. Sav. Bank, 119 Nev. 485, 488], 78 P.3d [71,] 73 [(2003)]. The rationale underlying this approach is that a mortgagee who pays a preexisting obligation without actual knowledge of an intervening encumbrance possesses the reasonable expectation of stepping into the shoes of the prior mortgagee. See Lamb Excavation, Inc. [v. Chase Manhattan Mortgage Corp., 208 Ariz. 478, 481], 95 P.3d [542,] 545 [ (Ariz.Ct.App.2004) ]. Critics of the majority view contend it fosters willful ignorance by encouraging prospective mortgagees to forgo conducting title searches so that they might later claim lack of actual knowledge. See Houston, [119 Nev. at 488,] 78 P.3d at 73.
“Unlike the majority view, a minority of jurisdictions hold that either actual or constructive knowledge of an intervening lien bars equitable subrogation. See Kuhn v. Nat’l Bank of Holton, 74 Kan. 456, 87 P. 551, 552-53 (1906). This approach has been criticized as obviating the doctrine completely. See Capitol Nat’l Bank [v. Holmes], 43 Colo. [154,] 160, 95 P. [314,] 316 [ (1908) ] (recognizing that because a debt must always be recorded in order to attach as a lien, constructive notice will always preclude equitable subrogation ‘except when ... unnecessary and unimportant’); see also Kim [v. Lee, 145 Wash.2d 79, 98], 31 P.3d [665,] 675 [(2001)] (Sanders, J., dissenting) (if constructive knowledge were sufficient to defeat equitable sub-rogation, there would be no such doctrine since absent a prior filing or recording there would be no priority to contest); Restatement (Third) of Prop.: Mortgages § 7.6 cmt. a (preclusion of equitable subrogation based on actual or constructive knowledge permits a junior lienholder to be promoted in priority and receive an unwarranted and unjust windfall); Houston, [119 Nev. at 488,] 78 P.3d at 73 (same).
“An alternative to the majority and minority views is offered by the Restatement (Third) of Prop.: Mortgages, section 7.6. The Restatement provides that equitable subrogation may be applied so long as the putative subrogee was promised repayment, reasonably expected to receive a security interest in the property with the priority of the discharged mortgage, and the intervening lienholder suffers no prejudice. Restatement (Third) of Prop.: Mortgages, § 7.6(a)(4). Thus, unlike the majority and minority views, the Restatement does not hinge application of the doctrine on the potential subrogee’s knowledge of the intervening lien, but rather on the subrogee’s expectations and the likelihood of prejudice to the intervening lienholder. See Lamb Excavation, Inc., [208 Ariz. at 481,] 95 P.3d at 545; Kim, [145 Wash.2d at 98,] 31 P.3d at 670.”

125 P.3d at 458. See also Lawson, 6 So.3d at 15 (discussed infra, identifying the position expressed in Restatement (Third) of Property, but deeming it unnecessary under the facts presented to decide the issue whether to embrace the Restatement view that a refinancing mortgagee’s actual or constructive knowledge of intervening liens did not automatically preclude a court from applying the doctrine of equitable subrogation).

Other states adopting the majority view have applied the doctrine of equitable subrogation in circumstances where the party seeking subrogation has constructive notice, but not actual notice, of a judgment lien. See, e.g., G.E. Capital Mortgage Servs., Inc. v. Levenson, 338 Md. 227, 242, 657 A.2d 1170, 1177 (1995); Dodge City of Spartanburg, Inc. v. Jones, 317 S.C. 491, 494-95, 454 S.E.2d 918, 920-21 (S.C.Ct. App.1995). In accordance with the traditional rule of this State applied in Whitson and its progeny and with the majority view that constructive knowledge does not preclude the application of the doctrine of equitable subrogation, we hold that the constructive notice resulting from a judgment lien created under § 6-9-211 does not satisfy the knowledge requirement of equitable subrogation so as to preclude the application of that doctrine.

Foster contends that this result conflicts with this Court’s recent decision in Ex parte Lawson, supra. In Lawson, this Court held that “the constructive notice supplied by the materialman’s lien statute defeats the lenders’ equitable-subrogation claim.” 6 So.3d at 14. This decision was based on the language of the material-man’s lien statute, § 35-11-211, Ala.Code 1975, which expressly provides that mate-rialman’s liens “shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement.” In light of the express legislative intent, this Court determined that to hold otherwise would “ ‘violate the equitable maxim that equity follows the law.’ ” 6 So.3d at 14 (quoting Richards v. Security Pacific Nat’l Bank, 849 P.2d 606, 611 (Utah Ct.App.1993)).

Notably, in reaching a decision in Lawson, this Court did not overrule Whitson or Brooks. Rather, this Court distinguished Whitson and Brooks on the ground that neither case involved the application of the materialman’s lien statute. 6 So.3d at 13. Accordingly, it is apparent that this Court’s decision in Lawson was based on the unique language of the mate-rialman’s hen statute, which granted priority to materialman’s liens.

Like Whitson and Brooks, this case does not involve the materialman’s lien statute. In her brief, Foster relies heavily on the statutes applicable to judgment liens, §§ 6-9-210, 6-9-211, and 35-4-90; however, none of these statutes contains language similar to the language in the materialman’s lien statute expressing a legislative intent that the materialman’s lien have priority. Indeed, § 35-4-90, on which Foster places much emphasis, explains general recording principles with respect to the conveyance of real property. Its language does not elevate judgment liens in terms of priority as did the applicable materialman’s lien statute in Lawson. Absent similar language regarding judgment hens, this Court’s decision in Lawson is not controlling, and our decision in this ease does not run afoul of the maxim that equity follows the law. Stated differently, because the legislature has not expressed with regard to judgment liens, as it has with regard to materialman’s hens, its intent that the hen should have a special status of priority, our apphcation of the traditional rules of equitable subro-gation as against a judgment hen does not depart from the law. Moreover, such a result is consistent with Lawson in the avoidance of windfalls. In Lawson, rejecting the priority of the materialman over the second lender would have given the second lender a windfall — receiving the benefit of improvements to the real property without paying for them. Here, rejecting the priority of the judgment creditor over the second lender avoids a windfall to the judgment creditor, who is in no worse position than she was before the fortuity of the refinancing of the Yale mortgage.

Accordingly, to the extent Porter satisfied the Yale mortgage, it was entitled to assume the priority position of the Yale mortgage via the doctrine of equitable sub-rogation so long as its ignorance of the judgment lien was not a result of culpable negligence. Federal Land Bank, supra. Foster contends that Land Title “ignore[dJ facts brought to [its] knowledge, reasonably sufficient to invite diligent inquiry, which, if followed, would result in actual knowledge.” Whitson, 225 Ala. at 266, 142 So. at 568. Specifically, Foster points to evidence indicating that Land Title knew McBrayer’s name, under which the judgment lien was recorded, but nonetheless failed to discover the lien. Foster contends that Land Title’s failure can be imputed to Porter because, according to Foster, Land Title was acting as Porter’s agent with respect to the title search. Foster also notes that Land Title discovered another judgment lien against McBrayer and that Porter took steps to ensure that that lien had been satisfied. Porter denies that Land Title was acting as its agent, noting Porter’s lack of authority over Land Title and Land Title’s independent motive for conducting the search — to support its issuance of title insurance. Porter cites Wallace v. Frontier Bank, N.A., 903 So.2d 792, 801 (Ala.2004) (declining to impute knowledge of title insurer to purchasers of real property absent proof of an agency relationship); accord Federal Land Bank, 253 Ala. at 61, 42 So.2d at 835. Porter also denies that it had knowledge of facts requiring it to conduct a more diligent inquiry.

A diligent search would have disclosed the judgment lien. However, even if we assume that Porter negligently relied on Land Title (and there is no evidence to support that conclusion), this Court has stated: “If all persons who negligently confer an economic benefit upon another are disqualified from equitable relief because of their negligence, then the law of restitution, which was conceived in order to prevent unjust enrichment, would be of little or no value.” Ex parte AmSouth Mortgage Co., 679 So.2d 251, 255 (Ala.1996). Furthermore, as this Court stated in Brooks, “something more than simple negligence is required” to preclude the operation of the doctrine of equitable sub-rogation. 599 So.2d at 1165. There must be evidence indicating that in failing to discover the judgment lien Porter was culpably negligent. However, Foster has not directed this Court to any evidence showing the existence of an agency relationship between Porter and Land Title. Nor has she shown that Porter had such knowledge in its possession that would have invited diligent inquiry that would result in actual knowledge. Indeed, Porter had two affidavits from McBrayer stating that no judgments or liens against the property existed. Although there is evidence indicating that Porter did not find the judgment lien, there is no evidence showing “something more than simple negligence.” Brooks, supra.

Conclusion

Based on the foregoing, we hold that the trial court correctly determined that the doctrine of equitable subrogation applied to the Porter mortgage so that Porter assumed Yale’s position of priority to the extent Porter satisfied the Yale mortgage. Therefore, we affirm the trial court’s summary judgment for Porter.

AFFIRMED.

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

      . Section 6-9-210 provides, in part: “The owner of any judgment entered in any court of this state ... may file in the office of the judge of probate of any county of this state a certificate of the clerk or register of the court by which the judgment was entered ...."

        . Section 6-9-211 provides, in part: "Every judgment, a certificate of which has been filed as provided in Section 6-9-210, shall be a lien in the county where filed on all property of the defendant which is subject to levy and sale under execution ....''

      . Section 35-4-90(a) provides: "All conveyances of real property, deeds, mortgages, deeds of trust or instruments in the nature of mortgages to secure any debts are inoperative and void as to purchasers for a valuable consideration, mortgagees and judgment creditors without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees or judgment creditors.”


source: Caselaw Access Project

author: LYONS, Justice. BOLIN, Justice

license: Public Domain

text:
    Marcella SPARKS v. TOTAL BODY ESSENTIAL NUTRITION, INC., et al. Cindi Howard, Marion Howard, and Joshua Taylor v. Total Body Essential Nutrition, Inc., et al.
    1071708.
    Supreme Court of Alabama.
    July 17, 2009.

      Jeffrey C. Rickard and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for plaintiffs.
    Duncan Y. Manley, Sharon D. Stuart, and J. Paul Zimmerman of Christian & Small LLP, Birmingham, for defendant Wright Enrichment, Inc.
    Joseph H. Driver, Glenn E. Ireland, Sean C. Pierce, and Taylor C. Powell of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for defendant Tex-American Food Blending, Inc.
   LYONS, Justice.

These cases are before this Court on a certified question from the United States District Court for the Northern District of Alabama.

Facts and Procedural History

At various times Marcella Sparks, Cindi Howard, Marion Howard, and Joshua Taylor (collectively referred to as “the consumers”) purchased a dietary supplement known as “Total Body Formula” from St. John’s Nutrition, a health-food retailer in Oxford, Alabama. St. John’s Nutrition is a retail seller of Total Body Formula and received the supplement from the manufacturer in sealed, prepackaged containers. St. John’s Nutrition sold Total Body Formula to the consumers in the same condition as it was received by St. John’s Nutrition. The consumers allege that after ingesting Total Body Formula, they suffered serious and permanent physical injuries resulting from high levels of selenium and chromium contained in the supplement.

In two separate actions filed on April 28, 2008, the consumers sued Total Body Essential Nutrition, Inc.; TexAmerican Food Blending, Inc.; Wright Enrichment, Inc.; and St. John’s Nutrition in the Calhoun Circuit Court, asserting claims under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) for the manufacture and/or sale of a defective and unreasonably dangerous product, negligent failure to warn, negligence, negligent and/or reckless marketing, breach of the implied warranty of merchantability, and breach of the implied warranty of fitness for a particular purpose, and asserting a claim of fraud. On June 6, 2008, TexAm-erican Food Blending removed the two actions to the federal district court pursuant to 28 U.S.C. § 1382, asserting that the amount in controversy exceeded the threshold jurisdictional limit of the federal district court and that diversity jurisdiction existed because St. John’s Nutrition, the only named defendant with an Alabama residence for purposes of determining federal diversity jurisdiction, see 28 U.S.C. § 1332(c)(1), had been fraudulently joined.

Fraudulent joinder is established “when there is no possibility that the plaintiff can prove a cause of action against the resident (non-diverse) defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th. Cir.1998). “ ‘If there is even a possibility that a state court would find that the complaint states a cause of action against any one of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.’ ” Triggs, 154 F.3d at 1287 (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir.1983)). “The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibility of stating a valid cause of action in order for the join-der to be legitimate.” Triggs, 154 F.3d at 1287. The removing party must establish fraudulent joinder by clear and convincing evidence. Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006). When fraudulent joinder is established by the removing party, “the federal court must dismiss the non-diverse defendant and deny any motion to remand the matter back to state court.” Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir.2007).

On July 2, 2008, the consumers moved the federal district court to remand the two actions to the Calhoun Circuit Court, arguing that St. John’s Nutrition was not fraudulently joined so as to defeat jurisdiction based on diversity of citizenship. The consumers argued in their motion that TexAmerican Food Blending had failed to establish by clear and convincing evidence that there existed no possibility that causes of action for breach of the implied warranties of merchantability and fitness for a particular purpose could be stated against St. John’s Nutrition. Relying upon the sealed-container doctrine, Tex-American Food Blending argued that the consumers could not possibly establish causes of action against St. John’s Nutrition for breach of the implied warranties of merchantability and fitness for a particular purpose because, it argued, there existed no causal relationship between the conduct of St. John’s Nutrition and the allegedly defective product.

Following a hearing, the federal district court, on September 8, 2008, entered an order finding that TexAmerican Food Blending had proven by a preponderance of the evidence that the consumers’ claims exceeded the jurisdictional amount of $75,000. However, the federal district court concluded that it is not clear under Alabama law whether claims alleging the breach of the implied warranties of merchantability and fitness for a particular purpose are subject to the defense of the sealed-container doctrine. If the consumers’ claims against St. John’s Nutrition alleging breach of the implied warranties of merchantability and fitness for a particular purpose are barred as a matter of law by the sealed-container doctrine, then the joinder of St. John’s Nutrition as a defendant in the actions would be considered fraudulent. Therefore, the federal district court, pursuant to Rule 18, Ala. R.App. P., certified the following question to this Court:

“Whether, under Alabama’s Uniform Commercial Code, a retail seller who has purchased goods from a reputable manufacturer in enclosed, pre-packaged and sealed containers, with alleged imperfections that cannot be discovered by the exercise of reasonable care by the seller, can be held liable for any alleged imperfections in the product under an implied warranty of merchantability and or fitness for particular purpose; or whether, instead, the UCC imposes strict liability upon a retail seller of goods thereby eradicating the ‘lack of proximate cause defense’ provided to retail sellers under the AEMLD, as set forth in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976).”

The former United States Court of Appeals for the Fifth Circuit, in the first case using the certification procedure adopted in Amendment No. 328, § 6.02, Alabama Constitution 1901 (now Art. VI, § 140, Off. Recomp.), stated:

“Five questions were certified but, following our usual practice, we left it to the Alabama Court to formulate the issues. As was their prerogative, the Alabama Court did just that and considered the basic issues rather than replying categorically to the certified questions.”

Barnes v. Atlantic & Pacific Life Ins. Co. of America, 530 F.2d 98, 99 (5th Cir.1976) (footnote omitted).

Consistent with this prerogative, we note that the question as framed by the federal district court refers to “strict liability” as “eradicating the ‘lack of proximate cause defense.’ ” However, as the Court noted in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), the recognition of a defense of lack of causal relation arising from a defendant’s activities in connection with handling the product and its defective condition “is not to be confused with the burden which rests on the plaintiff to prove that his injuries and damages were the proximate result of the defective condition of the product.” Atkins, 335 So.2d at 143 n. 4. Finally, Alabama’s Uniform Commercial Code (“the UCC”) is equally attentive to the plaintiffs burden of establishing proximate cause. See, e.g., § 7-2-715(2)(b), Ala.Code 1975 (“Consequential damages resulting from the seller’s breach include: ... Injury to person or property proximately resulting from any breach of warranty.” (emphasis added)); § 7-2-314, Ala.Code 1975, Official Comment, ¶ 13 (“In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained.” (emphasis added)).

We therefore rephrase the question posed by the federal district court as follows:

“Whether, under the UCC, a retail seller who has purchased goods from a reputable manufacturer in enclosed, prepackaged and sealed containers, with alleged imperfections that cannot be discovered by the exercise of reasonable care by the seller, can be held liable for any alleged imperfections in the product under an implied warranty of merchantability and/or fitness for particular purpose; or, put another way, whether the UCC imposes liability upon a retail seller of goods without the availability of the defense of ‘lack of causal relation’ provided to retail sellers under the AEMLD, as set forth in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976).”

Only the consumers, TexAmerican Food Blending, and Wright Enrichment, Inc., have filed briefs with this Court.

Discussion

In Bradford v. Moore Brothers Feed & Grocery, 268 Ala. 217, 105 So.2d 825 (1958), this Court recognized the availability of the sealed-container doctrine to claims asserting the breach of implied warranties against retail sellers arising under the Uniform Sales Act. The view that the sealed-container defense survived the creation of implied warranties under the Uniform Sales Act has been described as the minority view. See Sams v. Ezy-Way Foodliner Co., 157 Me. 10, 18-19, 170 A.2d 160, 165 (1961), citing Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735 (1936); Bradford v. Moore Bros. Feed & Grocery, supra; Wilkes v. Memphis Grocery Co., 23 Tenn.App. 550, 134 S.W.2d 929 (1939); and Green v. Wilson, 194 Ark. 165, 105 S.W.2d 1074 (1937), as expressing the minority rule and describing the opposing view as supported by “the great weight of authority.” Our Court justified the availability of the sealed-container defense on the theory that the Uniform Sales Act was declarative of the common law. See Bradford, 268 Ala. at 220,105 So.2d at 827. Other courts reached the opposite conclusion. See, e.g., Sams v. Ezy-Way Foodliner Co., 157 Me. at 21, 170 A.2d at 166 (“The Uniform Sales Act in establishing implied warranties under Section 15 ended our ‘sealed container’ rule at common law.”).

We cannot, however, view the enactment of the UCC as a legislative exercise that is merely declaratory of the common law. See Official Comment to § 7-1-103, Ala.Code 1975:

“2.... Therefore, while principles of common law and equity may supplement provisions of the Uniform Commercial Code, they may not be used to supplant its provisions, or the purposes and policies those provisions reflect, unless a specific provision of the Uniform Commercial Code provides otherwise. In the absence of such a provision, the Uniform Commercial Code preempts principles of common law and equity that are inconsistent with either its provisions or its purposes and policies.”

Section 7-2-314, Ala.Code 1975, provides:

“(1) Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
“(2) Goods to be merchantable must be at least such as:
“(a) Pass without objection in the trade under the contract description; and
“(b) In the case of fungible goods, are of fair average quality within the description; and
“(c) Are fit for the ordinary purposes for which such goods are used; and
“(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
“(e) Are adequately contained, packaged, and labeled as the agreement may require; and
“(f) Conform to the promises or affirmations of fact made on the container or label if any.”

No provision is made for a defense to a claim of a breach of an implied warranty under § 7-2-314 based on the sealed-container doctrine. We view this silence as an abrogation of the common-law defense, rather than permission to carry it forward. Nothing in the Official Comment to § 7-2-314 supports the proposition that the sealed-container defense may be carried forward; the Comment is silent on the effect of care on the part of the seller once a breach of implied warranty has been established. We applied Florida law based on analogous provisions of the Florida UCC in AmSouth Bank v. Tice, 923 So.2d 1060, 1065 (Ala.2005). We there stated:

“Thus, Burtman [v. Technical Chemicals & Products, 724 So.2d 672 (Fla.Dist.Ct.App.1999),] stands for the principle that displacement of a common-law rule under the UCC does not require an unequivocal, explicit reference to the common-law rule being displaced. If the UCC provision conflicts with the common law in some way, the common law must be said to be displaced.”

(Emphasis added.) The rule in Tice is sound and due to be applied to the identical provisions of the Alabama UCC dealing with the applicability of the common law following the adoption of the UCC. Any other result would run counter to the principles of liability established in § 7-2-314. Indeed, the availability of the sealed-container defense to a claim based on a product that arrives in a sealed package would be irreconcilable with the simultaneous recognition of a claim arising from the sale of a product that does not arrive in a sealed package yet has component parts, such as an engine crankcase, equally concealed from view, that might contain a defective piston. Of course, under the latter circumstance, a claim of breach of an implied warranty would unquestionably exist.

Recognition of the sealed-container defense to claims of breach of implied warranty under § 7-2-314 is a policy matter best left to the wisdom of the legislature. Other states have resolved the question by statute in favor of and against the availability of the defense.

The treatment of this identical issue in Georgia is especially instructive. In Pierce v. Liberty Furniture Co., 141 Ga.App. 175, 176, 233 S.E.2d 33, 35 (1977), superseded by statute on other grounds as stated in Alltrade, Inc. v. McDonald, 213 Ga.App. 758, 445 S.E.2d 856 (1994), a furniture store sold a porch-swing kit in a sealed container it had received from the manufacturer of the swing. The customer assembled the swing, sat in it, and was injured when a piece of hardware failed. She sued the retailer under the Georgia version of the UCC, § 2-314, alleging breach of the implied warranty of merchantability. Reversing a summary judgment in favor of the retailer, the Court of Appeals of Georgia concluded that there was evidence indicating that the swing was unfit for the ordinary purposes for which such goods are used and that the retailer could be held hable for breach of the implied warranty of merchantability.

Addressing the sealed-container defense, the Georgia court stated:

“All of the post-U.C.C. authority that we have studied indicates that the implied warranty of merchantability does not base any distinctions upon whether or not goods are sold in their original packages. See, e.g., R. Anderson, 1 Uniform Commercial Code § 2-314: 70-72 (2d ed. 1970); G. Kock, Georgia Commercial Practice 40-41 (1964); White, ‘Sales Warranties Under Georgia’s Uniform Commercial Code,’ 1 Ga. State Bar J. 191, 196-97 (1964). The provision, in fact, establishes a concept for retailers similar to that employed in Code Ann. § 105-106, supra, by which manufacturers may be held strictly liable for defective products.
“Prior to the enactment of the U.C.C., Georgia adhered to the ‘sealed container doctrine.’ See Wood v. Hub Motor Co., 110 Ga.App. 101(2), 187 S.E.2d 674 (1964); Maroney v. Montgomery Ward & Co., 72 Ga.App. 485, 34 S.E.2d 302 (1945); Bel v. Adler, 63 Ga.App. 473(2), 11 S.E.2d 495 (1940). According to that doctrine, no warranty of merchantability applied as to the retailer of goods in their original packages, manufactured by reputable manufacturers, and in general use in the retail trade. In Wood v. Hub Motor Co., supra, however, it was specifically noted that this line of decisions was based on Code § 96-301, which was repealed with the advent of the U.C.C. in Georgia.
“Since the adoption of the U.C.C., several Georgia cases have applied the implied warranty of merchantability to retailers of goods sold in sealed packages. In Fender v. Colonial Stores, Inc., 138 Ga.App. 31(1)(A), 225 S.E.2d 691 (1976), the plaintiff took a six-pack carton of Coca-Cola from a shelf in the supermarket. She then proceeded to the checkout counter, and placed the carton upon the counter, at which time a bottle exploded and injured her. She sued the supermarket and suffered a directed verdict. This court held, on p. 35, 225 S.E.2d p. 695, ‘that Coca-Cola bottles which would break under normal handling are not fit for the ordinary use for which they were intended ... ’ and thus there was a prima facie showing by the plaintiff of a claim under the U.C.C.’s implied warranty of merchantability. The case was remanded for a jury trial.
“Chaffin v. Atlanta Coca Cola etc. Co., 127 Ga.App. 619(1), 194 S.E.2d 513 (1972), also deals with a bottled soft drink which was not merchantable. In this case the plaintiffs daughter purchased a Coke from a vending machine at a Big Apple grocery store. The plaintiff was injured while drinking an impure substance which was contained in the bottle. The plaintiff sued the grocery store on several grounds, including that of breach of the U.C.C. implied warranty of merchantability. The judge refused to charge the jury as to the implied warranty, and the jury found against the plaintiff. This court held that the trial court erred in its refusal to charge.
“Numerous other cases from this court, while not dealing specifically with goods sold in original containers, have used a strict liability approach to hold retailers liable for damage, suffered due to a breach of the U.C.C. implied warranty of merchantability. Redfern Meats v. Hertz, 134 Ga.App. 381, 215 S.E.2d 10 (1975) (improperly operating truck); Ray v. Deas, 112 Ga.App. 191, 144 S.E.2d 468 (1965) (foreign substance in hamburger).”

141 Ga.App. at 176-78, 233 S.E.2d at 35-36 (emphasis added). A subsequent enactment of the Georgia Legislature has deprived Pierce v. Liberty Furniture Co. of precedential value as to its treatment of a separate issue involving strict liability. See Ga.Code Ann. § 51-1-11.1 (2006).

When the Alabama Legislature enacted the UCC, it repealed the Uniform Sales Act. See § 7-10-102(1), Ala.Code 1975. The now repealed Uniform Sales Act was acknowledged by this Court to be the basis for the sealed-container defense in Bradford, 268 Ala. at 220, 105 So.2d at 827. On the same rationale as that employed by the Georgia appellate court in Pierce v. Liberty Furniture Co., we conclude that the replacement of the Uniform Sales Act with the UCC eliminated the sealed-container defense.

The recourse of the retailer under the circumstance here presented is a claim against its seller on its breach of implied warranty, not absolution. See Pierce v. Liberty Furniture Co., 141 Ga.App. at 178, 233 S.E.2d at 36, stating the correct result under analogous provisions of the Georgia UCC:

“It should be noted that under this holding a retailer is not a defenseless party who will be caught with a monetary loss due to another’s faulty construction of products. The retailer’s remedy is an action over against his seller not exculpation. The retailer may rely on the wholesaler or manufacturer to supply merchantable goods, and if they are not merchantable, the retailer has the same claim for breach of warranty as its customer had against it.”

We answer the certified question in the affirmative and hold that the sealed-container defense is not available to the retail seller of food products in claims asserting a breach of implied warranty under the UCC.

QUESTION ANSWERED.

COBB, C.J., and WOODALL, PARKER, and MURDOCK, JJ., concur.

STUART, SMITH, BOLIN, and SHAW, JJ., dissent.

BOLIN, Justice

(dissenting).

Because I believe that the enactment of Alabama’s Uniform Commercial Code (“the UCC”) did not abrogate the sealed-container defense, I must respectfully dissent from the main opinion.

Section 7-2-314, Ala.Code 1975, provides:

“(1) Unless excluded or modified (Section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
“(2) Goods to be merchantable must be at least such as:
“(a) Pass without objection in the trade under the contract description; and
“(b) In the case of fungible goods, are of fair average quality within the description; and
“(c) Are fit for the ordinary purposes for which such goods are used; and
“(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
“(e) Are adequately contained, packaged, and labeled as the agreement may require; and
“(f) Conform to the promises or affirmations of fact made on the container or label if any.”

Section 7-2-315, Ala.Code 1975, provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under Section 7-2-316 an implied warranty that the goods shall be fit for such purpose.”

It is clear under Alabama law that in order to establish a breach-of-an-implied-warranty claim, a plaintiff must prove that the breach was the proximate cause of the plaintiffs injury. See Cain v. Sheraton Perimeter Park South Hotel, 592 So.2d 218, 221 (Ala.1991) (“Under both the [Alabama Extended Manufacturer’s Liability Doctrine] and § 7-2-314, the defect or lack of merchantability, of course, must be proved to have been the proximate cause of the plaintiffs injuries.”); Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999); Rose v. General Motors Corp., 323 F.Supp.2d 1244 (N.D.Ala.2004); and Chase v. Kawasaki Motors Corp., U.S.A., 140 F.Supp.2d 1280, 1289 (M.D.Ala.2001) (“In an action for breach of the implied warranty of fitness for a particular purpose, the Plaintiffs must prove: (1) the existence of the implied warranty; (2) breach of the implied warranty; and (3) damages proximately resulting from that breach. Barrington Corp. v. Patrick Lumber Co., Inc., 447 So.2d 785, 787 (Ala.Civ.App.1984).”).

Alabama has historically adhered to the common-law sealed-container doctrine as a defense to the element of causation. The sealed-container doctrine was first established in this state in Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala.App. 639, 80 So. 734 (1918). In Weeks, the plaintiff sued the manufacturer of a bottled soda after ingesting the tainted contents of the bottle and was awarded $10 in damages. The defendant argued that the plaintiffs complaint sounded in tort and, therefore, that the plaintiff was allowed to recover no more costs than damages pursuant to § 3663 of the 1907 Code. In affirming the judgment, the Court of Appeals stated:

“It is a well-settled rule of law that where a manufacturer sells articles of his own make in the absence of an express warranty, a warranty by implication of law arises that such articles are reasonably fit for the purposes for which they were intended. So in the absence of an express warranty the law implies that the manufacturer or packer of foods, beverages, drugs, condiments, and confections intended for human consumption warrants that their products are fit for human consumption, and that they have used in the selection and preparation of such articles that degree of care ordinarily exercised by persons skilled in the business of preparing and packing articles of this character for distribution or sale to the general public.
“This warranty is not for the benefit of the retailer who purchases in large quantities for resale, and such retailer is not liable to the consumer of articles of the character here involved, if he purchases of a reputable manufacturer or dealer, and the goods so purchased and supplied by him are such as are without imperfections that may be discovered by the exercise of the reasonable care of a person skilled and experienced in dealing in and supplying goods to the general public. ‘As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter.’ 29 R.C.L. p. 1124, § 29. This warranty is raised by implication of law, for the benefit and protection of the consumer, regardless of the absence of express contractual relations between parties, and is enforceable by contract remedies....
“The second count of the complaint clearly states facts from which the law would imply a warranty as between the defendant and the plaintiff that the contents of the bottle of Chero-Cola were fit for human consumption, and that the defendant had used, in the selection and preparation of this drink, that degree of care ordinarily exercised by persons skilled in the business of preparing such drinks for distribution and sale to the public, and further states facts showing a breach of such warranty. We therefore hold that the complaint, when liberally construed to support the judgment, states a cause of action ex contractu, and is in assumpsit for a breach of implied warranty, and under the provisions of section 3662 of the Code as amended, the court was invested with a discretion in the taxation of costs according to the equities of the case.”

Weeks, 16 Ala.App. at 640, 80 So. at 735 (citations omitted).

In Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735 (1936), this Court applied the sealed-container doctrine to a retail transaction. In Kirkland, the plaintiff purchased from the defendant, a retail grocer, a bag of flour that was tainted with arsenic. The plaintiff was injured after ingesting the flour and sued the defendant, asserting a claim of negligence. Nothing in the plaintiffs complaint alleged that the defendant had manufactured or sacked the flour; that the

arsenic found its way into the flour while the flour was in the defendant’s possession; or that the defendant had notice or should have had notice that the sack of flour was tainted with arsenic. The trial court entered a judgment of nonsuit against the plaintiff. Kirkland, supra.

In affirming the judgment in favor of the defendant, this Court stated:

“In Dothan Chero-Cola Bottling Co. et al. v. Weeks, 16 AlaApp. 639, 640, 80 So. 734, 735 [ (1918) ], speaking of bottled soft drinks, it was said: ‘Such retailer is not liable to the consumer of articles of the character here involved, if he purchases of a reputable manufacturer or dealer, and the goods so purchased and supplied by him are such as are without imperfections that may be discovered by the exercise of the reasonable care of a person skilled and experienced in dealing in and supplying goods to the general public. Bigelow v. Maine Central R.R. Co., 110 Me. 105, 85 A. 396, 43 L.R.A. (N.S.) 627 [ (1912) ]; Winsor v. Lombard, 18 Pick. ([35] Mass.) 57 [ (1836) ]. “As to hidden imperfections, the consumer must be deemed to have relied on the care of the packer or manufacturer or the warranty which is held to be implied by the latter.” 29 R.C.L. p.q 1124, § 29.’
“This case has been disapproved on another point, but not as to the above statement. Birmingham Chero-Cola Bottling Co. v. Clark, [205 Ala. 678, 89 So. 64 (1921) ]. We deem this announcement in keeping with the better reason and the trend of modern authority on the subject....
“In this day the grocer’s stock consists in much of canned goods, goods in bottles, cartons, sacks, packages of great variety, put up under pure food regulations, and sold at retail in the unopened package. In common reason the grocer could not inspect the contents of every sack of flour he handles. No one expects him to do so. To impose a legal duty so to do is too exacting. The legal responsibility should rest where it belongs, on him who made the package and inclosed poisonous substances therein. In the absence of some averment disclosing that the poison found its way into the sack of flour here involved while under the control of the retailer, or some fact charging him with lack of care in selecting and selling that particular flour, the complaint was subject to demurrer.”

Kirkland, 233 Ala. at 406-07, 171 So. at 737.

This Court, in Bradford v. Moore Brothers Feed & Grocery, 268 Ala. 217, 105 So.2d 825 (1958), reaffirmed the application of the sealed-container doctrine to claims asserting a breach of implied warranties against retail sellers arising under the Uniform Sales Act. In Bradford, the plaintiff purchased from the defendant sacks of “cow feed” that were infested with mold. The defendant, a retailer in commercial feed, sold the feed in original, unopened sacks that had been packed by the manufacturer. The plaintiff sued the defendant, alleging a breach of an implied warranty, and the trial court entered a directed verdict in favor of the defendant. Relying upon Weeks, supra, and Kirkland, supra, the defendant argued on appeal that the plaintiff could not state a cause of action for breach of an implied warranty because a retail seller of commercial feed sold the feed to the plaintiff in original, unopened sacks that were packed by the manufacturer. This Court stated the following with regard to the sealed-container doctrine:

“It is true that the two cases cited [Weeks and Kirkland ] are authority for the proposition that the retailer who purchases in large quantities for resale is not liable to the consumer of articles of food for human consumption, if he purchases of a reputable manufacturer or dealer, and the goods so purchased and supplied by him are such as are without imperfections that may be discovered by the exercise of the reasonable care of a person skilled and experienced in dealing in and supplying goods to the general public. Cf. Lollar v. Jones, 229 Ala. 329, 157 So. 209 [ (1934) ]. We may note here that both cases make the rule expressly applicable only to cases involving food intended for human consumption. But we may assume for the purposes of this case, without deciding, that the principle is equally effective with regard to feed sold for the subsistence of livestock and other domestic animals. It would seem that this should be so a fortiori. At least it has been so applied in other jurisdictions ....
“It may be added that the general rule stated has neither been overruled nor modified in this state, although the trend is to a more liberal rule in other jurisdictions placing an implied warranty upon the retail sale of packaged items as well as those not packaged. The trend has apparently received especial impetus since the almost universal adoption of the Uniform Sales Acts. See the notes at 90 A.L.R. 1269 and 142 A.L.R. 1434. The adoption of the Uniform Sales Act in Alabama (Code 1940, Title 57, §§ 1-76) has worked no change of the general rule. The reaffirmation of the rule in the Kirkland case, supra, occurred in 1936, several years subsequent to the passage of the Act in this state, and the court in that case expressed their cognizance of the Act but dealt with the case without reference thereto. This position is consistent with the view stated by this Court and generally recognized most everywhere that § 21 of the Uniform Sales Act is only declarative of the common law. McCarley v. Wood Drugs, Inc., 228 Ala. 226, 153 So. 446 [ (1934) ], 77 C.J.S. Sales § 329, p. 1186.
“The general rule to which recognition is given above, would require an affir-mance were it not for the facts present here which we feel should be treated as within an exception to the rule. Here the retailer handled, stored, or treated the goods in a manner which would tend to alter the original condition of the goods as they were produced by the manufacturer and the clear inference arises that the retailer had actual or constructive notice of the defective status of the goods. The Kirkland case, supra [233 Ala. 404, 171 So. at 736], recognized such a status to be an exception to the general rule where it was observed:
“'The complaint does not charge that defendant manufactured or sacked this flour; nor that the poison found its way into the flour while in defendant’s possession; nor that anything on the sack, nor the source from which it came, gave notiee to the retailer, or put him on inquiry touching its fitness for human consumption. For aught appearing, this was an ordinary sack of flour, put up by reliable millers, to be sold by the retailer intact, for the convenience of both merchant and customer.’
“And again:
“Tn the absence of some averment disclosing that the poison found its way into the sack of flour here involved while under the control of the retailer, or some fact charging him with lack of care in selecting and selling that particular flour, the complaint was subject to demurrer.’ ”

Bradford, 268 Ala. at 219-20, 105 So.2d at 827-28. In reversing the judgment of the trial court, this Court concluded that evidence was presented that created a question of fact as to whether the buyer could rely on the implied warranty in the sale of the feed based on the defendant’s having a superior knowledge of the condition of the feed or a better opportunity for inspection of the feed, which might have given the defendant actual or constructive notice of some defect in the feed pertaining to its merchantability or fitness for a particular purpose. Bradford, supra.

In Allen v. Delchamps, Inc., 624 So.2d 1065 (Ala.1993), a case decided after the enactment of the UCC, the lack of a distinct line between tort claims and claims asserting a breach of an implied warranty in tainted-food-product cases was never more evident. In Allen the plaintiff purchased from the defendant grocery store two bags of celery hearts that had been prepackaged in cellophane wrapping by the defendant’s supplier. The defendant had inspected samples of the celery at its warehouse for freshness and quality. The plaintiff ingested a piece of the raw celery and had an immediate allergic anaphylactic reaction. It was later determined that the celery contained sodium bisulfate, which the plaintiff, an asthmatic, was sensitive to.

The plaintiff sued the defendant, among others, asserting causes of action based on negligence and wantonness, the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”), and breach of the implied warranty of merchantability under § 7-2-314, Ala.Code 1975. The trial court entered a summary judgment in favor of the defendant as to all the plaintiffs claims. Allen, supra.

This Court stated the following relative to the principles applicable to tort claims and breach-of-implied-warranty claims in tainted-food-product cases:

“In regard to their AEMLD claim, the plaintiffs must prove that Mrs. Allen ‘suffered injury or damages to [herself] or [her] property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer.’ Atkins v. American Motors Corp., 335 So.2d 134, 141 (Ala.1976). Similarly, the plaintiffs’ implied warranty of merchantability claim requires that the plaintiffs show that the goods were unmerchantable or unfit for the ordinary purposes for which they are used. Ala.Code 1975, § 7-2-314. These two standards ‘go hand-in-hand,’ at least as applied to food products, ‘for it is apparent that a food product is defective or unreasonably dangerous if it is unmerchantable or unfit for human consumption.’ Cain v. Sheraton Perimeter Park S. Hotel, 592 So.2d 218, 220 (Ala.1991) (quoting Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.2d 975, 977 (Ala.1983)).
“This Court has adopted the ‘reasonable expectations’ test for determining if food is unmerchantable or unreasonably dangerous. Cain, 592 So.2d at 221; Morrison’s, 431 So.2d at 978. Under this test, the pivotal issue is what is reasonably expected by the consumer in the food as served, and the ‘[njaturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.’ Morrison’s, 431 So.2d at 978 (quoting Zabner v. Howard Johnson’s, Inc., 201 So.2d 824, 826 (Fla.Dist.Ct.App.1967)). Because the terms ‘defect,’ ‘unreasonably dangerous,’ and ‘merchantable’ all focus on the expectations of the consumer, this Court has found the reasonable expectations test to be compatible with both the AEMLD and the implied warranty of merchantability. Cain, 592 So.2d at 221.”

Allen, 624 So.2d at 1068.

This Court reversed the summary judgment in favor of the defendant on the plaintiffs’ AEMLD claim, stating:

“Delchamps asserts that this case is different from Cain because in Cain the summary judgment on the AEMLD claim was based on the trial court’s finding that the AEMLD did not apply, whereas in this case, Delchamps says, the summary judgment on the AEMLD claim was based on evidence establishing a lack of causal relation. To establish the defense of a lack of causal relation, the defendant may show ‘that there is no causal relation in fact between his activities in connection with handling the product and its defective condition.’ Atkins v. American Motors Corp., 335 So.2d 134, 143 (Ala.1976). One way to establish this lack of a causal relation is for the defendant to show:
“ ‘[T]hat he is in the business of either distributing or processing for distribution finished products; he received a product already in a defective condition; he did not contribute to this defective condition; he had neither knowledge of the defective condition, nor an opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer.’
“Id.
“While Delchamps showed that it is in the business of distributing finished products, that it received a product already in a defective condition, and that it did not contribute to the defective condition, it, nevertheless, did not show conclusively that it did not possess an ‘opportunity to inspect the product which was superior to the knowledge or opportunity of the consumer.’ Id. The plaintiffs showed that Delchamps did inspect for freshness and quality and did have procedures for requiring its suppliers to certify compliance with other regulations regarding insecticides and pesticides. Whether Delchamps’s opportunity to discover or to know of the defect is superior to that of the consumer is a genuine issue of material fact; therefore, the court erroneously entered the summary judgment as to the AEMLD claim. Delchamps is entitled to present evidence and to argue that there was no causal relation between what it did or failed to do and Mrs. Allen’s injuries, but it must do so to the factfinder.”

Allen, 624 So.2d at 1068-69. Thus, this Court did not reject the sealed-container doctrine as a defense to the element of causation; rather, it determined that the defendant had failed to present evidence establishing that defense as a matter of law.

It is clear that the sealed-container doctrine was available to retailers of food products at common law and under the Uniform Sales Act, the predecessor to the UCC, as a defense to causation in both claims sounding in tort and those asserting a breach of an implied warranty. The question is whether that defense is still available to retail sellers of food products following the enactment of the UCC.

As the federal district court noted in its certification order to this Court, the enactment of the UCC replaced the warranty provisions of the Uniform Sales Act (and presumably those of the common law). See the Official Comment to § 7-2-314, Ala.Code 1975, stating as “[cjhanges” that § 15(2) of the Uniform Sales Act was “[cjompletely rewritten”; and the Official Comment to § 7-2-315, Ala.Code 1975, stating that §§ 15(1), (4), and (5) of the Uniform Sales Act had been “[rjewritten.” Section 7-l-103(b), Ala.Code 1975, provides that “[ujnless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.” Further,
“[t]he Uniform Commercial Code was drafted against the backdrop of existing bodies of law, including the common law and equity, and relies on those bodies of law to supplement its provisions in many important ways. At the same time, the Uniform Commercial Code is the primary source of commercial law rules in areas that it governs, and its rules represent choices made by its drafters and the enacting legislatures about the appropriate policies to be furthered in the transactions it covers. Therefore, while principles of common law and equity may supplement provisions of the Uniform Commercial Code, they may not be used to supplant its provisions, or the purposes and policies those provisions reflect, unless a specific provision of the Uniform Commercial Code provides otherwise. In the absence of such a provision, the Uniform Commercial Code preempts principles of common law and equity that are inconsistent with either its provisions or its purposes and policies.”

Official Comment to § 7-1-103, Ala.Code 1975. “Under § 7-1-103, prior existing law supplements the various code sections ‘unless displaced by the particular provisions of this title.’ It is clear from this that if the particular code provisions do displace prior law, the code prevails.” Toomey Equip. Co. v. Commercial Credit Equip. Corp., 386 So.2d 1155, 1159 (Ala.Civ.App.1980). In other words, the UCC is to be supplemented by the existing principles of law and equity if no precise provision of the UCC applicable to the issues presented contradicts those principles. See H.C. Schmieding Produce Co. v. Cagle, 529 So.2d 243 (Ala.1988).

Nothing in the express provisions of §§ 7-2-314 and -315 indicate that previously accepted defenses were abrogated by the enactment of the UCC. Nor have the plaintiffs directed this Court to any other provision of the UCC that supplants the defenses available at common law. In fact, it appears from the Official Comment to § 7-2-314 that common-law defenses to causation were affirmatively left intact by the legislature when the UCC was enacted. The Official Comment to § 7-2-314 states:

“In an action based on breach of warranty, it is of course necessary to show not only the existence of the warranty but the fact that the warranty was broken and that the breach of the warranty was the proximate cause of the loss sustained. In such an action an affirmative showing by the seller that the loss resulted from some action or event following his own delivery of the goods can operate as a defense. Equally, evidence indicating that the seller exercised care in the manufacture, processing or selection of the goods is relevant to the issue of whether the warranty was in fact broken. Action by the buyer following an examination of the goods which ought to have indicated the defect complained of can be shown as matter bearing on whether the breach itself was the cause of the injury.”

Additionally, I note that because causation is an element of a breach of an implied warranty, the abrogation of the defenses available to retail defendants as to that element would have the effect of making the retail defendant strictly liable and the insurer of the goods it sells. The idea of making a retailer the insurer of the goods it sells has been rejected by this Court. See Ex parte Morrison’s Cafeteria of Montgomery, Inc., 431 So.2d 975, 979 (Ala.1983) (“Courts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell.”); Atkins v. American Motors Corp., 335 So.2d 134, 142 (Ala.1976) (rejecting the idea of strict liability under the AEMLD and stating “that defendants who are ordinarily engaged in the business of marketing products should be liable for the foreseeable harm proximately resulting from defective conditions in the products which make them unreasonably dangerous”).

Accordingly, I would hold that the sealed-container doctrine as stated in Kirkland, supra, and Bradford, supra, is available as a defense to the retail seller of food products in claims asserting a breach of an implied warranty under the UCC.

STUART, SMITH, and SHAW, JJ., concur.

      . The consumers state that St. John’s Nutrition "apparently is a sole proprietorship.” Consumers' brief, at 1.

      . Sparks was the plaintiff in the first action (CV-08-PT-1010-E), and Cindi Howard, Marion Howard, and Taylor were the plaintiffs in the second action (CV-08-PT-1012-E).

      . The Uniform Sales Act was repealed when the UCC was enacted. See § 7-10-102(1), Ala.Code 1975.

      . See N.C. Gen.Stat. Ann. § 99B-2(a) (2007) ("No product liability action, except an action for breach of express warranty, shall be commenced or maintained against any seller when the product was acquired and sold by the seller in a sealed container or when the product was acquired and sold by the seller under circumstances in which the seller was afforded no reasonable opportunity to inspect the product in such a manner that would have or should have, in the exercise of reasonable care, revealed the existence of the condition complained of, unless the seller damaged or mishandled the product while in his possession; provided, that the provisions of this section shall not apply if the manufacturer of the product is not subject to the jurisdiction of the courts of this State or if such manufacturer has been judicially declared insolvent.”).

      . See, e.g., Tenn.Code Ann. § 29-28-106(a)(2000) ("No 'product liability action,’ as defined in § 29-28-102(6), shall be commenced or maintained against any seller when the product is acquired and sold by the seller in a sealed container and/or when the product is acquired and sold by the seller under circumstances in which the seller is afforded no reasonable opportunity to inspect the product in such a manner which would or should, in the exercise of reasonable care, reveal the existence of the defective condition. The provisions of the first sentence of this subsection shall not apply to: (1) Actions based upon a breach of warranty, express or implied, as defined by title 47, chapter 2

      . This Court specifically noted in Kirkland that the plaintiff had not asserted a claim under the Uniform Sales Act, the predecessor to the UCC.

      . The defendant grocery store apparently failed to argue the sealed-container doctrine as a defense to the plaintiffs’ claim alleging breach of implied warranty because the summary judgment as to that claim was reversed on other grounds.


author: THOMAS, Judge.

text:
    Debbie JACKS, Perry Jacks, and Bobbie Smitherman Adams v. Edwin TAYLOR.
    2060455.
    Court of Civil Appeals of Alabama.
    March 28, 2008.
    Rehearing Denied May 2, 2008.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1071140.
    Dale Rouse Waid, Clanton, for appellants.
    Chris Speaks, Clanton, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of this court released on November 2, 2007, is withdrawn, and the following is substituted therefor.

This is a boundary-line dispute between coterminous landowners. In June 2005, Edwin Taylor filed a complaint alleging that, for more than 20 years, the boundary line between his property and the property owned by Debbie Jacks and Perry Jacks had been marked by a fence; that he and the Jackses’ predecessors in title had agreed that the fence was the boundary line but that a dispute had recently arisen between the parties as to the location of the boundary line; and that the Jackses had trespassed upon his property and had begun erecting another fence. Taylor sought a judicial determination of the boundary line and a temporary restraining order (“TRO”) to prevent the Jackses from trespassing on or otherwise interfering with his property.

The Jackses answered, denying that the parties or their predecessors in title had ever acknowledged a fence as the boundary line between their properties and alleging that the boundary line was the section line between Section 4 in Township 21 and Section 33 in Township 22. The Jackses also alleged that Taylor had faded to name an indispensable party, namely Bobbie Smitherman Adams, who, they said, also shared a boundary with Taylor along the section line.

Taylor amended his complaint to name Adams as an additional defendant. Following a bench trial, the trial court entered a judgment finding that “the boundary line between [Taylor’s] property and [the Jackses’ and Adams’s] property is the old lane fence, described by [the Jackses and Adams] and their witnesses as the inside fence, apparently still remaining this day.” The Jackses and Adams appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Factual Background

In 1957, Taylor purchased property described as “[t]he south half of the south half of the southwest quarter, Section 33, Township 22, Range 15, containing 40 acres, more or less.” Taylor’s property is bordered on the south by property owned by the Jackses and Adams. The northern boundaries of both the Jackses’ property and Adams’s property are described by reference to the section line dividing Section 4 and Section 33.

The Jackses’ May 21, 1999, deed describes their property as:

“A parcel of land containing 6.30 acres, more or less, being more particularly described as follows: Begin at the NE comer of Section llh Township 21 North, Range 15 East, Chilton County, Alabama and run thence W along the N line of Section J and a fence line a distance of ⅛,013 5.5 feet to the point of beginning of the parcel herein described; from the point of beginning thus established [] continue Westerly along a fence line a distance of 411 feet; from said point run thence S a distance of 640 feet to a point; from said point run thence E a distance of 411 feet, more or less, to a point; from said point run thence N 640 feet to the point of beginning. Also an easement for right of way for ingress and egress and installation of necessary utilities, said easement being described as follows: A strip of land of uniform width and 15 feet wide along either side of the following described line, said line being the centerline of said easement: “Begin at the NE corner of Section 4, Township 21 North, Range 15 East, and run thence W a distance of 4,013.5 feet to a point; from said point continue W a distance of 411 feet, more or less, to a point; from said point run thence S 1280 feet to a point on the N margin of a dirt road; from said point run thence E along the N margin of said dirt road a distance of 15 feet to the point of beginning of the centerline of said easement; from said point run thence N a distance of 640 feet, more or less, to the S line of that parcel above described, said easement being 30 feet wide and 15 feet on either side of the aforesaid described property and connecting the 6.3 acre parcel above described with the N margin of the County dirt road, i.e., County Road 488.”

An Adams deed dated July 11, 1975, describes the northern boundary of one parcel of her property as “along the North line of Section 4, a distance of 194 feet ... [s]aid lot or parcel of land lying and being in the Northwest Fourth, Section 4, Township 21, Range 15, Chilton County, Alabama, and containing two-thirds of an acre.” An Adams deed dated July 22, 1975, describes another parcel of her property as “[a] lot or parcel of land lying and being situated in the NW 1/4 of the NW 1/4, Section 4, Township 21 North, Range 15 East, Chilton County, Alabama, containing 13 acres, more or less,” with the northern boundary being described as follows:

“From the Northeast corner of the NW 1/4 of the NW 1/4, of Section 4, Township 21 North, Range 15 East, run West on and along the North boundary line of said Quarter-Quarter 411 feet to a point, which said point is the point of beginning of the property herein described. From said point as the point of beginning, continue to run West on and along the North boundary of said Quarter-Quarter 897.5 feet to a point on the East right of way line of a paved county road

Adams’s July 22, 1975, deed includes the following additional provision, not found in any of the other deeds at issue in this case.

“It is understood and agreed by the parties hereto that the fences presently located on the North and East line of the property described herein are not property lines but are fences mutually agreed on as pasture lines only.”

Taylor testified that when he acquired his property in 1957, there was a fence along the southern edge of the property. He stated that, in the 50 years that he had owned the property, he had repaired or rebuilt the fence several times but he had never changed the location of the fence. Throughout the record, the parties referred to that fence as “the inside fence.”

Taylor acknowledged that at some time in the past there had existed another fence, which the Jackses and Adams and their witnesses referred to “the outside fence,” running parallel to and just north of the inside fence. The evidence was undisputed that, although the outside fence no longer existed at the time of trial on May 22, 2006, remnants of the outside fence remained, specifically fence wiring that was embedded in a large red oak tree on the northeast corner of the Jackses’ property. All the parties agreed that the area between the inside fence and the outside fence had been used by Taylor and by the Maddoxes — the Jackses’ and Adams’s predecessors in title — as a “cattle lane,” a way to move cattle between the pastures on various parcels owned by Taylor and by the Maddoxes. In addition, Taylor testified that he had used the area to grow crops, including peaches, watermelon, and wheat, and hay for his cattle. Taylor identified the inside or southernmost fence as the boundary between his property and the property of the Jackses and Adams. He acknowledged that his property was in Section 83 and that he did not own any property in Section 4.

Taylor testified that in May or June 2005 he saw a man working on what he considered to be his side of the fence. Taylor identified Darryl Bice, the son of Debbie Jacks and the great-nephew of Bobbie Adams, as the man he had seen on his property. Bice informed Taylor that he had purchased a parcel of property from Adams, that he had had the property surveyed, and that he was staking out the property for a fence. When Bice began building the fence, Taylor filed the present lawsuit.

Neil Taylor, Edwin Taylor’s 55-year-old son, testified that the inside fence had marked the boundary between his father’s property and the property to the south for as long as he could remember. He said that in May or June 2005 he found a steel stake that had been driven into the ground on his father’s side of the property and asked Bice about it. Bice stated that the surveyor he had hired had placed the stake in the ground.

Debbie Jacks identified the deed to her property; she stated that she had received the property in 1999 from her brother, who had received the property from their father, Billy Maddox. Jacks, who was 50 years old at the time of trial, testified that she had grown up on the property, which had been in her family since 1918. She said that the fence lines on the property— both of the existing inside fence and of the formerly existing outside fence — “were not the land line.” She testified, “My grandfather on down has always told us that the fence lines — and I believe we have it on one of the deeds — -that the fence line is not the land line.” She described a large red oak tree that, she said, marked the section corner. Jacks stated that she had never been aware that Taylor was claiming that he owned the property up to the inside fence until her son, Darryl Bice, had begun to erect a fence after having commissioned a survey. She said that, while her son was putting up the fence, Taylor pushed his truck against the fence and asked her son what he was doing. Jacks replied, “We had [the property] surveyed and we [are] putting up a fence ... six inches this side of what [the surveyor] said was the line.” Taylor responded by pointing to the inside fence and stating that there “was already a fence up and it was the one over there.” Jacks replied that the inside fence “was not the land line.” According to Jacks, Taylor said that “it didn’t matter; that fence was standing.” Jacks testified that on three, occasions between 1995 and 1997 Taylor or someone acting on his behalf and at his direction had cut trees in the disputed area. She said that on each occasion a member of her family had instructed Taylor to stop the cutting and that Taylor had complied with those instructions.

Debbie Jacks’s aunt, 72-year-old Bobbie Adams, identified her deeds and stated that she had lived on the property described therein since 1934. Adams corroborated Jacks’s testimony concerning the cutting of timber. She testified that sometime in the mid-1990s she saw three men cutting timber on the northwest corner of her property, in what she called “the cow lane.” She asked the men who had given them the authority to cut the trees, and when they replied that they were working at Taylor’s direction, Adams responded, “[W]ell, I’m asking you to stop because this is not Mr. Taylor’s land. This is my land. You can go tell Mr. Taylor [that] if he wants to come talk to me I will be at the house.” Adams said that Taylor never came to speak to her. She explained that her father and Taylor’s father had had an agreement that Taylor could “use the cow lane,” but, she said, the cow lane was “not [Taylor’s] to keep.”

Billy Maddox, Debbie Jacks’s father and Adams’s twin brother, testified that he, his father, and his son had been previous owners of the property that the Jackses owned at the time of trial. Maddox said that, approximately two weeks before his father died, his father had reminded him that “the inside fence was not the line, that the outside [fence] was the line.” Maddox said that he had seen the outside fence in existence before his father died but that, after his father died, the outside fence was taken down and the inside fence was repaired. Maddox stated that, although he had not seen anyone dismantling the outside fence, he had an idea who had done it. Maddox testified that he thought the new fence built by Darryl Bice stood on the boundary line. Carolyn Maddox, the wife of Billy Maddox, testified that the outside fence, which had stood until the mid-1980s, had represented the correct boundary line.

Darryl Bice testified that he was 31 years old and had lived on his mother’s property all of his life. He stated that he had purchased a portion of his great-aunt Bobbie’s acreage and that he was planning to place a mobile home on the property. To that end, he said, he had commissioned a survey and had begun building a fence “roughly six inches to a foot off the survey line.” Bice said that the survey line came out “three feet to the inside of the red oak tree” on his mother’s property. In addition, he said, “the U[nited] S[tates] Geological] S[urvey] section forty corner and section marker ... is tied dead into [his] fence.”

The surveyor was not called to testify, and the survey was neither offered nor admitted in evidence. No maps, plats, or other documents purporting to show the location on the ground of the line dividing Section 33 from Section 4 were offered or admitted in evidence.

Like his mother and his great-aunt, Bice also testified that Taylor had cut trees on his family’s property. He testified that on one occasion in early 1997 he had come home from college at his grandfather’s request and had stopped Taylor from cutting wood. When Bice was asked, on direct examination, whether Taylor had “made any allegation at that time that he owned that land and could do what he wanted to do with it,” he answered, “No ... he did not protest it.”

Standard of Review

Our standard of review in a boundary-line case is extremely deferential. In Bearden v. Ellison, 560 So.2d 1042 (Ala.1990), our supreme court stated:

“Where a trial court hears ore tenus testimony, as in this case, its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous. The trial court’s judgment will be affirmed if there is credible evidence to support the judgment. Furthermore, where the trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment unless such findings would be clearly erroneous.”

560 So.2d at 1043-44 (citations omitted).

Discussion

Generally, “[i]n a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years.” Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980). See generally 1 Jesse P. Evans III, Alabama Property Rights and Remedies § 12.4[a] and [b] (3d ed.2004).

Alteration of the Boundary Line by Adverse Possession

Taylor neither alleged nor proved that he owned the disputed area by adverse possession.

“The law concerning adverse possession by a conterminous landowner is well settled:
“ ‘[I]n Alabama there are basically two types of adverse possession; statutory adverse possession, and adverse possession by prescription. Both require the common elements of actual, exclusive, open, notorious, and hostile possession under a claim of right, but the statutory version, which requires possession for only ten years rather than the twenty years required by the prescription version, also requires that the possessor hold under color of title, have paid taxes on the property for ten years, or have derived his title by descent or devise. Code 1975, § 6-5-200. Downey v. North Alabama Mineral Development Co., 420 So.2d 68 (Ala.1982). However, in cases like the present one, where adverse possession is claimed by a conterminous owner, the three latter requirements do not apply. Thus, a conterminous landowner ... must prove open, notorious, hostile, continuous, and exclusive possession for only ten years. He need not prove either a deed or color of title to the property, annual listings for taxation, or descent or devise from a predecessor in order to maintain his claim. Mardis v. Nichols, 393 So.2d 976 (Ala.1981).'
“Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984); see also Garringer v. Wingard, 585 So.2d 898, 900 (Ala.1991); and Carpenter v. Huffman, 294 Ala. 189, 191, 314 So.2d 65, 67 (1975) (applying the predecessor statute to § 6-5-200).”

Springfield Missionary Baptist Church v. Wall, 993 So.2d 469, 474-75 (Ala.Civ.App.2008) (footnote omitted).

In the present case, Taylor failed to present clear and convincing evidence indicating that his use of the disputed area was either hostile or exclusive.

“The element of hostility is generally not satisfied where the possessor entered by permission of the true owner. Where the entry was originally permissive, possession is presumed to continue as permissive until there is a repudiation of the permission by the adverse possessor such that it puts the true owner on notice of the adverse claim of the possessor.”

1 Evans, Alabama Property Rights and Remedies § 10.3[d] (footnotes omitted). The evidence was undisputed that Taylor, the Jackses, Adams, and their predecessors in title had long used the area between the intact inside fence and the previously existing outside fence as a “cattle lane” to move their stock from pasture to pasture. Adams testified that her father and Taylor’s father had had an agreement that Taylor could “use the cow lane,” but, she said, the cow lane was “not [Taylor’s] to keep.” Taylor failed to refute Adams’s testimony that Taylor’s use of the area had always been permissive.

“Exclusivity is usually demonstrated by acts consistent with ownership — such acts as would ordinarily be performed by the true owner of the land in appropriating it or its earnings to his own use .... ” 1 Evans, Alabama Property Rights and Remedies § 10.3[f] (footnote omitted). The evidence tended to show that Taylor had cut trees in the disputed area at least once, and perhaps as many as three times. Each time, either Debbie Jacks, Adams, or Bice had instructed him to stop the cutting and he had complied. Taylor failed to assert any right to the property in response to Adams’s statement that the disputed area was “not Mr. Taylor’s land. This is my land. You can go tell Mr. Taylor [that] if he wants to come talk to me I will be at the house.”

We conclude that Taylor did not establish adverse possession of the disputed area.

Alteration of the Boundary Line by Agreement

Although Taylor’s complaint alleged that he and the predecessors in title to the Jackses and Adams had agreed that the inside fence marked the boundary between the coterminous owners, Taylor presented no evidence of such an agreement. He testified that he thought he owned all the property up to the inside fence and that, in his opinion, the inside fence was the boundary line, but he offered no evidence indicating that he or his predecessors in title had agreed with the Jackses or Adams, or their predecessors in title, that the boundary line was anything other than what the parties’ deeds reflected.

Moreover, even if such an agreement had been shown, it would have been without effect because the parties’ deeds and titles were based upon the lines of the government survey and no agreement of the parties could relocate the section line. See Oliver v. Oliver, 187 Ala. 340, 343-44, 65 So. 373, 375 (1914). In Oliver, the supreme court held:

“Plaintiffs theory of the case seems to be that any recognition by former owners of the two tracts of a ‘made line,’ wherever it might be, was binding upon them, although their respective deeds and titles were based on the lines of the government survey, and regardless of the absence of an adverse possession up to such line.
“This is not the law, for recognition by adjoining owners of a false line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute is complete. Even a formal agreement between them as to such a line could not, of itself, vest title in one of them beyond the true line to which each actually owns. Certainly it could not have the effect of transferring one part of a government survey 40 to the 40 just below it, although acquiescence in such a line would prima facie indicate its verity.”

Id. See also Guyse v. Chappell, 367 So.2d 944, 946 (Ala.1979) (stating that “[o]ur cases are clear that no agreement or act (e.g., adverse possession) of adjacent landowners can relocate the section lines, or interior subdivision lines established by government survey, for they are certain in legal contemplation”); Mims v. Alabama Power Co., 262 Ala. 121, 77 So.2d 648 (1955); McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160 (1954); Upton v. Read, 256 Ala. 593, 56 So.2d 644 (1952); Wilson v. Cooper, 256 Ala. 184, 54 So.2d 286 (1951); Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 (1942); and Dial v. Bond, 849 So.2d 189 (Ala.Civ.App.2002).

Taylor claimed ownership of property only in Section 33, as described in his deed, and disclaimed ownership of any property in Section 4. The Jackses and Adams claimed ownership of property only in Section 4, as described in their deeds, and disclaimed ownership of any property in Section 33.

Because Taylor failed to prove either adverse possession or an agreement between the parties to alter the boundary line between their properties, the judgment of the trial court altering the boundary from the United States Government section line to the “old lane fence, described by [the parties] and their witnesses as the inside fence, apparently still remaining this day” is plainly and palpably erroneous.

The judgment of the Chilton Circuit Court is reversed, and the cause is remanded for proceedings consistent with this opinion.

APPLICATION FOR REHEARING GRANTED; OPINION OF NOVEMBER 2, 2007, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

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

      . Although none of the parties mentions that the emphasized portion of the description in the Jackses' deed appears to be erroneous, we note that it is impossible to begin at the northeast comer of Section 14 and to run thence west along the north line of Section 4, much less to begin at the northeast corner, to run west 4,013.5 feet, and then to be at the point of beginning. Thus, we assume that the reference in the deed to Section 14 must be a typographical error and must be interpreted to read as follows:
      “Begin at the NE corner of Section 4, Township 21 North, Range 15 East, Chilton County, Alabama, and run thence W along the N line of Section 4 and a fence line a distance of 4,013.5 feet to a point; from said point ...