author: PARKER, Justice.

text:
    EX PARTE INTERNATIONAL CREATIVE MANAGEMENT PARTNERS, LLC, d/b/a ICM Partners
    (In re: Jordan Taylor Pardue, a minor, and Terrie Pardue, individually and as mother and next friend of Jordan Taylor Pardue, a minor v. The Club at 219 Dauphin, Inc., et al.)
    1161059
    Supreme Court of Alabama.
    February 2, 2018
    Rik S. Tozzi of Burr & Forman LLP, Birmingham; and Ricardo A. Woods and Taylor B. Johnson of Burr & Forman LLP, Mobile, for petitioner.
    Desmond V. Tobias and Bryan E. Comer of Tobias, McCormick & Comer, LLC, Mobile, for respondents.
   PARKER, Justice.

International Creative Management Partners, LLC, d/b/a ICM Partners ("ICM"), petitions this Court for a writ of mandamus directing the Mobile Circuit Court to vacate its order denying ICM's motion to dismiss the action filed against it by Jordan Taylor Pardue, a minor, and Terrie Pardue, individually and as Jordan's mother and next friend (hereinafter collectively referred to as "the Pardues"), on the basis that the circuit court lacked personal jurisdiction over it and to issue an order granting its motion. We grant the petition and issue the writ.

Facts and Procedural History

ICM, a limited liability company existing under the laws of the State of Delaware and registered to do business in California and New York, is a literary and talent agency that represents numerous clients throughout the world. ICM's clients perform at various venues around the United States, including venues in Alabama. According to ICM's petition, ICM's principal place of business is in Los Angeles, California. None of ICM's members or managers reside in Alabama, and ICM does not own or lease property in Alabama, is not registered with the Alabama Secretary of State to do business in Alabama as a foreign entity, and "does not direct efforts regarding sales, marketing, or advertising to individuals or businesses located in Alabama."

Nick Storch, a talent agent employed by ICM at all times relevant to this case, worked out of ICM's New York office. One of the ICM clients assigned to Storch was Cannibal Corpse, a "death-metal" music band that is "owned, managed, promoted and/or controlled" by C.C. Touring Co., Inc., a Florida company. Red Mountain Entertainment, an Alabama company, contacted Storch to inquire about scheduling Cannibal Corpse for a live concert to be performed at Soul Kitchen Music Hall in Mobile, Alabama, on June 27, 2014. Storch, acting as agent for Cannibal Corpse and C.C. Touring, negotiated the details of the concert with Trevor Starnes, an employee of Red Mountain Entertainment. Storch stated in his affidavit testimony that all the fee negotiations were conducted by telephone and e-mail and that "[n]o ICM employees ... ever traveled to Alabama." Based on those negotiations, C.C. Touring and Red Mountain Entertainment entered into a contract, which ICM drafted. ICM received a $250 commission for booking Cannibal Corpse with Red Mountain Entertainment.

On June 27, 2014, Jordan attended the Cannibal Corpse concert at Soul Kitchen Music Hall. The Pardues state in their response to ICM's petition that, during the concert, "the crowd became violent and Jordan ... was thrown to the ground, suffering a spinal cord injury." The Pardues alleged in their complaint that it was, or should have been, foreseeable "that patrons attending Cannibal Corpse concerts exhibit violent behavior, including ... forming 'mosh pits' and/or dancing, running[,] jumping or otherwise physically contacting other patrons during the concert." The Pardues state that Jordan's total medical bills for treating the injuries Jordan incurred at the concert exceed $1.2 million.

On July 3, 2014, the Pardues sued "Soul Kitchen Music Hall" and The Club at 219 Dauphin, Inc. ("the Club"), an Alabama company that owns, manages, and operates the Soul Kitchen Music Hall. On July 23, 2015, the Pardues amended their complaint to add ICM as a defendant. The Pardues, after amending their complaint a fourth time, alleged against ICM claims of negligence, wantonness, and "inciting imminent violence." The Pardues did not sue Red Mountain Entertainment.

On May 24, 2016, ICM filed a motion to dismiss the Pardues' claims against it under Rule 12(b)(2), Ala. R. Civ. P. ICM argued that Rule 4.2(b), Ala. R. Civ. P., Alabama's "long-arm" rule, did not operate to give the circuit court personal jurisdiction over ICM. Rule 4.2(b) states, in pertinent part:

"An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States ...."

On May 10, 2017, following some discovery related to the issue of the circuit court's personal jurisdiction over ICM, the Pardues filed a response to ICM's motion to dismiss, which the circuit court denied on July 31, 2017. The circuit court concluded that ICM's contacts with Alabama were such that it had general jurisdiction and specific jurisdiction over ICM. ICM then petitioned this Court for mandamus review of the circuit court's order denying its motion to dismiss.

Standard of Review

"We recently addressed the standard of review in a proceeding challenging the trial court's ruling on a motion to dismiss for lack of personal jurisdiction in Ex parte Bufkin, 936 So.2d 1042, 1044-45 (Ala. 2006) :

" ' " 'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]."
" ' Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001). "An appellate court considers de novo a trial court's judgment on a party's motion to dismiss for lack of personal jurisdiction." Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala. 2002).
" ' " ' "In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and 'where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.' Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) )." '
" ' " Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala. 2001) ). However, if the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, 'the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.' Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala. 2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) ). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995) ('When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.') (citing Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 63 (3d Cir. 1984) )."
" ' Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala. 2004).' "

Ex parte Duck Boo Int'l Co., 985 So.2d 900, 905-04 (Ala. 2007).

Discussion

The only issue before this Court is whether the circuit court's assertion of personal jurisdiction over ICM comports with due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution. This Court recently set forth the applicable law in Hinrichs v. General Motors of Canada, Ltd., 222 So.3d 1114, 1120-22 (Ala. 2016) :

"In Robinson v. Harley-Davidson Motor Co., 354 Or. 572, 316 P.3d 287 (2013), the Supreme Court of Oregon, addressing the issue whether asserting jurisdiction over a foreign corporation comports with due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution, aptly summarized the current status of the United States Supreme Court's holdings, including Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). The Robinson court stated:
" 'Under Supreme Court jurisprudence, an exercise of jurisdiction over a nonresident defendant comports with due process if there exists "minimum contacts" between the defendant and the forum state such that maintaining suit in the state would "not offend traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (internal quotation marks omitted); see also International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ("[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' "). Due process is thus satisfied if "the defendant's conduct and connection with the forum State are such that he [or she] should reasonably anticipate being haled into court there." World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 559.
" 'In applying that test, the Supreme Court has recognized that jurisdiction over a nonresident may be either general or specific. Goodyear [Dunlop Tires Operations, S.A. v. Brown], 564 U.S. [915] at 919, 131 S.Ct. [2846] at 2851[ (2011) ] ; see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 473 n. 15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (noting distinction between general and specific jurisdiction); see Willemsen [v. Invacare Corp.], 352 Or. 191, 197, 282 P.3d [867,] 867 [ (2012) ]. General jurisdiction exists when the defendant's affiliations with the forum state "are so 'continuous and systematic' " as to render the defendant "essentially at home in the forum State." Goodyear, [564] U.S. at [919], 131 S.Ct. at 2851 ; see Willemsen, 352 Or. at 197, 282 P.3d at 867. Stated differently, general jurisdiction is present in " 'instances in which the continuous ... operations within a state [are] so substantial and of such a nature as to justify suit against [the defendant] on causes of actions arising from dealings entirely distinct from those activities.' " Goodyear, [564] U.S. at [924], 131 S.Ct. at 2853 (first alteration in original; quoting International Shoe, 326 U.S. at 318, 66 S.Ct. at 154 )....
" 'Specific jurisdiction "depends on an 'affiliatio[n] between the forum and the underlying controversy,' principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation." Goodyear, [564] U.S. at [919], 131 S.Ct. at 2851 (alteration in original); see Willemsen, 352 Or. at 197, 282 P.3d at 867. In other words, specific jurisdiction "is confined to adjudication of 'issues deriving from, or connected with, the very controversy that establishes jurisdiction.' " Goodyear, [564] U.S. at [919], 131 S.Ct. at 2851 (quoting von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) ).
" 'The analytical framework for determining whether specific jurisdiction exists consists of three inquiries. See [State ex rel.] Circus Circus [Reno, Inc. v. Pope], 317 Or. [151,] 159-60, 854 P.2d 461[, 465 (1993) (en banc) ] (laying out analytical framework). First, the defendant must have "purposefully avail[ed] itself of the privilege of conducting activities within the forum State." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The requirement that a defendant purposefully direct activity to the forum state precludes the exercise of jurisdiction over a defendant whose affiliation with the forum state is "random," "fortuitous," or "attenuated," or the "unilateral activity of another party or a third person." Burger King, 471 U.S. at 475, 105 S.Ct. 2174 (internal citation marks omitted); see also State ex rel. Jones v. Crookham, 296 Or. 735, 741-42, 681 P.2d 103[, 107] (1984) (requirements of due process not met when defendant's contacts with Oregon are "minimal and fortuitous").
" 'Second, the action must "arise out of or relate to" the foreign defendant's "activities in the forum State." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ; Burger King, 471 U.S. at 472, 105 S.Ct. 2174. Stated differently, for an exercise of specific jurisdiction to be valid, there must be "a 'relationship among the defendant, the forum, and the litigation.' " Helicopteros, 466 U.S. at 414, 104 S.Ct. 1868 (quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ). In further explaining that relationship, the Supreme Court recently highlighted two means by which specific jurisdiction attaches: Jurisdiction may attach if a party engages in "activity [that] is continuous and systematic and that activity gave rise to the episode-in-suit." Goodyear, [564] U.S. at [923], 131 S.Ct. at 2853 (internal quotation marks omitted; emphasis in original). Jurisdiction may also attach if a party's "certain single or occasional acts in a State [are] sufficient to render [him or her] answerable in that State with respect to those acts, though not with respect to matters unrelated to the forum connections." Id. (internal quotation marks omitted). Thus, as articulated by the Court, an exercise of specific jurisdiction is appropriate in cases where the controversy at issue "derive[s] from, or connect[s] with" a defendant's forum-related contacts. Id. at [919], 131 S.Ct. at 2851.
" 'Finally, a court must examine whether the exercise of jurisdiction over a foreign defendant comports with fair play and substantial justice, taking into account various factors deemed relevant, including an evaluation of the burden on a defendant, the forum state's interest in obtaining convenient and effective relief, the interstate judicial system's interest in efficient resolution of controversies, and furthering fundamental social policies. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) ; Burger King, 471 U.S. at 476-77, 105 S.Ct. 2174 ; see Circus Circus, 317 Or. at 159-60, 854 P.2d 461.'
" 354 Or. at 577-80, 316 P.3d at 291-92 (third emphasis original; other emphases added; footnote omitted)."

In the present case, the circuit court denied ICM's motion to dismiss based on its conclusion that it had both general and specific jurisdiction over ICM. In its petition before this Court, ICM argues that the circuit court erred in concluding that it had general and specific jurisdiction over ICM. ICM makes extensive argument concerning the circuit court's assertion of general jurisdiction over it. The Pardues concede that the circuit court erred in concluding that it had general jurisdiction over ICM. We agree with the parties. There is nothing before this Court indicating that ICM's contacts with Alabama " ' "are so 'continuous and systematic' " as to render [ICM] "essentially at home in [Alabama]." Goodyear, [564] U.S. at [919], 131 S.Ct. at 2851.' " Hinrichs, 222 So.3d at 1121. ICM's rare provision of booking services to its clients who perform in Alabama is not sufficient contacts on which to assert general jurisdiction over ICM. ICM has demonstrated, and the Pardues agree, that the circuit court erred in asserting general jurisdiction over ICM.

We now turn to whether the circuit court was correct in asserting specific jurisdiction over ICM. In Hinrichs, this Court provided a summary of the applicable precedents of the United States Supreme Court concerning the kind of conduct required for the assertion of specific jurisdiction:

" Walden [v. Fiore, 571 U.S. 277 (2014),] makes it clear that, absent general jurisdiction, the precedents of the United States Supreme Court require that, for specific jurisdiction to exist, [the defendant's] in-state activity must 'g[i]ve rise to the episode-in-suit,' Goodyear, 564 U.S. at 923 and involve ' "adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction," ' 564 U.S. at 919. Moreover, Walden clearly holds that whether a forum state can constitutionally assert specific jurisdiction over a nonresident defendant ' "focuses on 'the relationship among the defendant, the forum, and the litigation.' " ' Walden, 571 U.S. at 284, 134 S.Ct. at 1121 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), quoting in turn Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ). Walden then clearly instructs that if a state is to exercise jurisdiction consistent with due process, 'the defendant's suit-related conduct must create a substantial connection with the forum State.' 571 U.S. at 284, 134 S.Ct. at 1121 (emphasis added)."

Hinrichs, 222 So.3d at 1137-38.

ICM argues in its petition that "the relationship between ICM's conduct ... and the harm that occurred at Soul Kitchen [Music Hall] ... is simply too tenuous to support specific jurisdiction." ICM argues that it conducted no activity in Alabama that would give rise to the Pardues' lawsuit. The facts of ICM's involvement in this case are undisputed. Red Mountain Entertainment contacted ICM based on its knowledge that ICM was Cannibal Corpse's agent; there is nothing indicating that ICM marketed its representation of Cannibal Corpse in Alabama. ICM negotiated, on behalf of C.C. Touring, with Red Mountain Entertainment the details of a live concert to be performed by Cannibal Corpse at Soul Kitchen Music Hall. Based on ICM's negotiations with Red Mountain Entertainment, C.C. Touring and Red Mountain Entertainment entered into a standard performance contract, drafted by ICM, in which Cannibal Corpse agreed to perform at Soul Kitchen Music Hall and Red Mountain Entertainment agreed to pay C.C. Touring a fee of $2,500. ICM received $250 as a commission for its work in booking Cannibal Corpse with Red Mountain Entertainment. Other than arranging the booking, ICM had no involvement with the details of Cannibal Corpse's performance at Soul Kitchen Music Hall.

We agree with ICM. As set forth in Hinrichs, we focus our analysis on the relationship among ICM, Alabama, and the litigation. First, as it relates to the facts of this case, ICM had no relationship with Alabama until Red Mountain Entertainment contacted ICM. ICM then negotiated on behalf of C.C. Touring the booking details of a one-time appearance in Alabama by Cannibal Corpse. In Hinrichs, this Court quoted the following relevant portion of Walden v. Fiore, 571 U.S. 285, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) :

" '[O]ur "minimum contacts" analysis looks to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there. See, e.g., International Shoe [Co. v. Washington, 326 U.S. 310,] 319[ (1945) ] (Due process "does not contemplate that a state may make binding a judgment in personam against an individual ... with which the state has no contacts, ties, or relations"); Hanson [v. Denckla, 357 U.S. 235,] 251[ (1958) ] ("However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him"). Accordingly, we have upheld the assertion of jurisdiction over defendants who have purposefully "reach[ed] out beyond" their State and into another by, for example, entering a contractual relationship that "envisioned continuing and wide-reaching contacts" in the forum State, Burger King [Corp. v. Rudzewicz, 471 U.S. 462,] 479-480[ (1985) ], or by circulating magazines to "deliberately exploi[t]" a market in the forum State, Keeton [v. Hustler Magazine, Inc., 465 U.S. 770,] 781[ (1984) ]. And although physical presence in the forum is not a prerequisite to jurisdiction, Burger King, supra, at 476, physical entry into the State-either by the defendant in person or through an agent, goods, mail, or some other means-is certainly a relevant contact. See, e.g., Keeton, supra, at 773-774.' "

Hinrichs, 222 So.3d at 1136-37 (quoting Walden, 571 U.S. at 285, 134 S.Ct. at 1122 (emphasis added) ). There is nothing before us indicating that ICM reached out beyond its home states to Alabama by entering into a contract that envisioned ICM's having "continuing and wide-reaching contacts" in Alabama. In fact, ICM did not enter into any contract germane to the Pardues' claims. Rather, as stated above, ICM simply facilitated the performance agreement between C.C. Touring and Red Mountain Entertainment at the unsolicited request of Red Mountain Entertainment.

Second, ICM has very little relationship to the claims asserted by the Pardues. The Pardues' claims allege negligence, wantonness, and inciting imminent violence. The Pardues' claims arise out of injuries Jordan incurred at Soul Kitchen Music Hall during the Cannibal Corpse concert. Other than negotiating the performance agreement between C.C. Touring and Red Mountain Entertainment, ICM had no part in planning the actual concert, and ICM had no control over Soul Kitchen Music Hall. The Pardues claim that it was foreseeable that the Cannibal Corpse concert would incite violence among the patrons attending the concert. However, the Pardues have not explained how this assertion pertains to ICM's relationship to the litigation for purposes of specific jurisdiction. ICM's relationship with the litigation is very minor.

We must also consider whether ICM's activity in Alabama gave rise to the episode-in-suit. As discussed above, ICM's only activity even remotely related to Alabama was its negotiation of the performance agreement between C.C. Touring and Red Mountain Entertainment. However, this was not activity in Alabama but activity with an entity located in Alabama. Other than arranging the booking of Cannibal Corpse, ICM had no involvement with the actual performance by Cannibal Corpse at Soul Kitchen Music Hall where Jordan incurred the injuries that are the basis of this action. For this reason alone it appears that ICM had no activity in Alabama giving rise to the episode-in-suit. Moreover, assuming that ICM did engage in activity in Alabama, it does not appear that ICM's activity gave rise to the episode-in-suit. ICM merely negotiated the agreement between C.C. Touring and Red Mountain Entertainment that led to Cannibal Corpse performing at Soul Kitchen Music Hall; ICM had no involvement with the concert or venue beyond those initial negotiations. The Pardues allege in their complaint that the negligence and wantonness of the defendants on the night of the concert led to Jordan's injuries. The Pardues argue in their brief before this Court that ICM should have foreseen the possibility that a patron attending the Cannibal Corpse concert could get injured. However, even assuming reasonable foreseeability, the Pardues have not explained how ICM's activity gave rise to the episode-in-suit. We conclude that ICM's negotiation of the performance agreement between C.C. Touring and Red Mountain Entertainment did not give rise to the episode-in-suit. ICM has demonstrated that there is no " ' "clear, firm, nexus between the acts of [ICM] and the consequences complained of." ' " Ex parte Alamo Title Co., 128 So.3d 700, 710 (Ala. 2013) (quoting Elliott v. Van Kleef, 830 So.2d 726, 731 (Ala. 2002), quoting in turn Duke v. Young, 496 So.2d 37, 39 (Ala. 1986) ).

Lastly, based on the facts that ICM's relationship with Alabama is very tenuous, that the claims asserted by the Pardues do not arise out of or relate to ICM's contacts with Alabama, and that ICM's activities did not give rise to the episode-in-suit, we conclude that the exercise of jurisdiction over ICM does not comport with fair play and substantial justice.

Conclusion

ICM has demonstrated a clear legal right to a writ of mandamus directing the Mobile Circuit Court to vacate its order denying ICM's motion to dismiss for lack of personal jurisdiction and to enter an order dismissing ICM from the underlying action.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Shaw, Main, Wise, and Sellers, JJ., concur.

Bryan, J., concurs in the result.

      According to the complaint, at all relevant times Jordan was 18 years old, but he was married and had been relieved of his disability of minority.

      The circuit court based its conclusion that it had general jurisdiction over ICM on the fact that four other clients of ICM's had also been booked to perform in Alabama. Those bookings have no relation to the facts of this case.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    EVABANK v. TRADITIONS BANK et al.
    1160495
    Supreme Court of Alabama.
    February 9, 2018
    John R. Lavette of Morris & Lavette, PC, Birmingham, for appellant.
    Stuart M. Maples and Deanna S. Smith of Maples Law Firm, PC, Huntsville, for appellees Traditions Bank and TBX Title, Inc.
    Trent Lowry of Griffith, Lowry & Meherg, LLC, Cullman, for appellee Terry Williams.
   SELLERS, Justice.

EvaBank, an Alabama banking corporation, appeals from a summary judgment in favor of Traditions Bank, TBX Title, Inc., and Terry Williams. We reverse the judgment and remand the case.

Facts

The following facts are undisputed: On August 14, 2013, William Michael Robertson and Connie Robertson, customers of EvaBank, entered into a purchase agreement with Terry Williams, pursuant to which Williams agreed to purchase the Robertsons' property located on County Road 35 in Hanceville ("the property"). The agreed-upon purchase price for the property was $50,000. EvaBank held two mortgages on the property, securing a loan totaling approximately $41,000 (hereinafter referred to as "the EvaBank mortgages"). Williams engaged Traditions Bank to finance his purchase of the property. Traditions Bank agreed to provide Williams with a loan secured by a first mortgage on the property. TBX Title, a subsidiary of Traditions Bank, acted as the closing agent for the real-estate transaction. In preparation for the closing, Traditions Bank requested that the Robertsons obtain a payoff statement for the EvaBank mortgages. William Michael Robertson contacted EvaBank via telephone and requested that EvaBank fax to Traditions Bank a payoff statement for the mortgages. On September 10, 2013, EvaBank faxed to Traditions Bank the payoff statement for loan no. 80210981, indicating a balance due of $22,111.30. That payoff statement, however, was actually for anther EvaBank customer, Michael S. Roberson, with an address in Moulton, Alabama.

On September 13, 2013, TBX Title closed the real-estate transaction between the Robertsons and Williams. Traditions Bank thereafter delivered a check to EvaBank for "Loan Payoff # 1-80210981," in the amount of $22,123.25. EvaBank accepted and negotiated the check and applied the proceeds to the loan of Michael S. Roberson. On September 16, 2013, TBX Title wired to the Robertsons, who were living in Texas, the net sales proceeds from the closing-$24,672.19.

On September 17, 2013, TBX Title recorded the warranty deed and mortgage and mailed the deed to Williams. On September 18, 2013, EvaBank contacted William Michael Robertson about his loan being past due; Robertson responded that the loan should have been paid off at the closing with the proceeds from the sale. EvaBank learned at this point that there was a problem with the payoff statement it had provided, i.e., the payoff statement was for a loan in the name of Michael S. Roberson, not William Michael Robertson. EvaBank thereafter subtracted the payoff proceeds from the Michael S. Roberson loan and applied them to the William Michael Robertson loan. EvaBank ultimately sent Traditions Bank an e-mail, explaining its mistake and noting that it had made a demand upon William Michael Robertson to pay the remaining balance due on the EvaBank mortgages but that Robertson had refused. Accordingly, EvaBank informed Traditions Bank that it would not release it mortgages encumbering the Robertsons' property until the balance on the loan they were securing had been fully satisfied.

On December 12, 2013, Traditions Bank sued EvaBank, asserting a claim of slander of title and seeking a judgment declaring that it was the first lienholder on the property. EvaBank counterclaimed, seeking a declaratory judgment concerning the priority of the EvaBank mortgages and its right to full payment for the loan secured by the mortgages. EvaBank added Williams as a necessary party to its declaratory-judgment action. EvaBank also added TBX Title as a defendant in its counterclaim action, alleging third-party breach of contract, negligence, wantonness, and slander of title. Williams filed a counterclaim against EvaBank, joining Tradition Bank's demand for a judgment declaring Traditions Bank the first lienholder on the property; Williams demanded, in the alternative, monetary damages against EvaBank for alleged fraud, negligence, and wantonness. All parties moved for a summary judgment or a partial summary judgment pursuant to Rule 56(c), Ala. R. Civ. P.

On February 7, 2017, after conducting a hearing, the trial court entered a summary judgment in favor of Traditions Bank and TBX Title, on the basis of equitable estoppel, on the claims involving those parties and dismissed all other claims. The trial court concluded that, as between the two banks, EvaBank had the opportunity to prevent the injuries suffered. Accordingly, the trial court ordered EvaBank to release its mortgages on the property. EvaBank filed a postjudgment motion, which the trial court denied. This appeal followed.

Standard of Review

"Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review." Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala. 2005).

Discussion

EvaBank raises several issues on appeal, one of which is dispositive. Specifically, EvaBank contends that the trial court erred in entering a summary judgment in favor of Traditions Bank, TBX Title, and Williams on the basis of equitable estoppel because, it says, the elements of estoppel are not present in this case. We agree.

We begin our discussion by noting that Alabama classifies itself as a "title" state with regard to mortgages. "Execution of a mortgage passes legal title to the mortgagee." Trauner v. Lowrey, 369 So.2d 531, 534 (Ala. 1979). Section § 35-10-26, Ala. Code 1975, states both that "[t]he payment or satisfaction of the real property mortgage debt divests the title passing by the mortgage" and that " '[p]ayment or satisfaction of the real property mortgage debt' shall not occur until there is no outstanding indebtedness or other obligation secured by the mortgage." (Emphasis added.) In this case, EvaBank held legal title to the property by virtue of its mortgages on the property securing the Robertsons' loan. Traditions Bank and TBX Title sought to divest EvaBank of legal title to the property by satisfying the EvaBank mortgages encumbering the property. In preparation for the closing, Traditions Bank requested from the Robertsons a payoff statement for the EvaBank mortgages. William Michael Robertson contacted EvaBank via telephone and requested that it fax a payoff statement to Traditions Bank. Jane Smith, the EvaBank employee who received the telephone call, confused Robertson with another EvaBank customer, Michael Roberson. She testified in her deposition:

"I got a call from a Michael Roberson, Roberson, saying I need you to fax a payoff to Traditions [Bank]. I recognized the voice, I pulled up [the account of] Michael Roberson, and I faxed the payoff to [Traditions Bank]."

EvaBank asserts that, in undertaking to satisfy the EvaBank mortgages, Traditions Bank and TBX Title had a duty to inquire and to verify that the payoff statement was, in fact, the correct mortgage-payoff statement for the EvaBank mortgages encumbering the property. Traditions Bank and TBX Title, on the other hand, assert that EvaBank is estopped from claiming a priority interest in the property because, they say, the payoff statement was a misleading communication upon which they detrimentally relied.

To establish the essential elements of estoppel, Traditions Bank and TBX Title had the burden of demonstrating that

"(1) [t]he person against whom estoppel is asserted, who usually must have knowledge of the facts, communicates something in a misleading way, either by words, conduct, or silence, with the intention that the communication will be acted on; (2) the person seeking to assert estoppel, who lacks knowledge of the facts, relies upon that communication; and (3) the person relying would be harmed materially if the actor is later permitted to assert a claim inconsistent with his earlier conduct."

General Elec. Credit Corp. v. Strickland Div. of Rebel Lumber Co., 437 So.2d 1240, 1243 (Ala. 1983). It is undisputed that EvaBank mistakenly faxed to Traditions Bank the payoff statement for Michael S. Roberson, and not the payoff statement for William Michael Robertson. It is further undisputed that EvaBank did not become aware of its mistake until after the closing had occurred. Therefore, given EvaBank's lack of knowledge as to its mistake, it could not have intended to induce reliance. In other words, there is no evidence indicating that EvaBank intended to induce either Traditions Bank or TBX Title to rely on the payoff statement for Michael S. Roberson to close the real-estate transaction between the Robertsons and Williams. Moreover, the testimony on behalf of Traditions Bank and TBX Title, as described below, establishes that neither was ignorant of the discrepancies in the payoff statement. Thus, the only question left for our review is whether it can be held, as a matter of law, that Traditions Bank and TBX Title's reliance on the payoff statement provided them by EvaBank was reasonable under the undisputed facts of this case. It is well settled that the "party invoking estoppel must have in good faith been ignorant of the true facts at the time a representation is made to him, and must have acted with diligence to learn the truth." Ivey v. Dixon Inv. Co., 283 Ala. 590, 594, 219 So.2d 639, 643 (1969). See also Webb v. Pioneer Ins. Co., 56 Ala. App. 484, 488, 323 So.2d 373, 376 (Ala. Civ. App. 1975) (noting that "[t]he party seeking to claim the benefit of an estoppel must show detrimental reliance of a substantial character on his part").

Traditions Bank and TBX Title had before them numerous documents that, among other things, set forth each of the Robertsons' full names, the address of the property, the dates of the two EvaBank mortgages, and the amount of the loan secured by the mortgages. For example, the purchase agreement contained the signatures of William M. Robertson and Connie Robertson. The payoff statement, on the other hand, reflected the name of Michael S. Roberson. The EvaBank mortgages contained the signatures of four Robertsons, including the signature of William Michael Robertson. The payoff statement, on the other hand, contained only the single name of Michael S. Roberson. The warranty deed recorded by TBX Title contained the full names of each of the Robertsons, including William Michael Robertson. Again, the payoff statement reflected the name Michael S. Roberson.

Tabitha White, a loan officer with Traditions Bank, stated in her deposition that she had requested most of the documents required for the closing and that she forwarded them to Debra Butler, the sole employee of TBX Title. White stated that, when she received the payoff statement, she noticed that the name, Michael S. Roberson, was different from any of the names on the closing documents. White stated, however, that she did not check the name on the payoff statement against the names of the sellers, i.e., the Robertsons, because, according to her, EvaBank had provided the payoff statement at the request of its customer. Butler also admitted in her deposition that there was a discrepancy between the name on the payoff statement and the name on the closing documents. When questioned by the attorney for EvaBank, Butler responded:

"A. ... I checked the name. I do not have [a] loan number, and Social Security numbers are usually not on payoffs. I did check the name.
"Q. All right. Well, did you see that the name was different?
"A. I-yes.
"Q. All right. And did you do anything else to find out whether there was a problem?
"....
"A. I questioned Tabitha and asked where the payoff came from, who got the payoff, because the name was different. And she said that the seller ordered the payoff directly from EvaBank. My response to her was then it's not for us to question-if the seller ordered their payoff and it came directly from EvaBank, it's not for us to question....
"....
"Q. All right. You did not do anything to check to see if it was the wrong payoff for the wrong person?
"....
"A. I did nothing further.
"Q. Okay. All right. You could have checked, couldn't you have?
"[Objection.]
"A. Sure.
"Q. And obviously, it raised a question, didn't it?
"[Objection.]
"A. Yes.
"Q. Whose call was it to determine or decide whether or not to do anything further to check it, [yours] or [White's]?
"A. Mine.
"Q. Whose responsibility was it to obtain the payoff ...?
"[Objection.]
"A. I think [White and I] both shared responsibility in it.
"Q. Okay. And was it both your responsibilities to get an accurate payoff?
"[Objection.]
"A. Yes.
"Q. All right. Since it was your responsibility, did you at the same time accept the responsibility for deciding that you weren't going to double-check [the accuracy of the payoff statement] despite the question arising?
"[Objection.]
"A. Yes.
"....
"Q. All right. And [in hindsight] did you think [you] should have checked [the discrepancy with the name in the payoff]?
"[Objection.]
"A. Yes."

The testimony reflects that Traditions Bank and TBX Title shared the responsibility for obtaining an accurate payoff statement. Yet White candidly admitted that she assumed, without checking, that the payoff was accurate because EvaBank had provided it at the request of its customer. Butler also admitted that there was a discrepancy with the name in the payoff statement and that she should have investigated the discrepancy. Further, Traditions Bank and TBX Title had before them numerous documents, including the purchase agreement, the "property appraisal link," the "as is agreement" signed by Williams, and the "property tax agreement" signed by Williams, reflecting the location of the property being sold by the Robertsons as being in "Hanceville, AL," which is in Cullman County. The record also contains e-mails between White and Butler indicating that they knew, before the closing, that all the Robertsons had moved to Texas and that they no longer lived on the property located in Hanceville. Yet, the payoff statement upon which Traditions Bank and TBX Title claim they relied reflects an address for property located in Moulton, a city located in an entirely different county. When questioned by EvaBank's attorney regarding this discrepancy, Butler noted that she always looked at the seller's address in a payoff statement and that it was not unusual for the address to be different from the address in other documents related to the closing. When questioned further, however, Butler testified:

"Q. And when [the address is] different ... [w]hat do you do to determine whether or not that is a problem, whether or not it indicates that there's a problem, a mistake? What do you do?
"A. Well, in the past, I have caught-I have called-if it was a problem, I've called to verify that it was the right [address]."

Based on the foregoing, it is clear that both Traditions Bank and TBX Title were on notice of one or more discrepancies between the payoff statement and the closing documents, which, through the exercise of due diligence, would have revealed the fact that the payoff statement was not for the loan secured by the EvaBank mortgages encumbering the property being sold by the Robertsons. We therefore conclude, as a matter of law, that Traditions Bank and TBX Title's reliance on the payoff statement, without further inquiry, was not reasonable. Accordingly, they may not rely on estoppel as a basis on which to claim a priority interest in the property.

Conclusion

The doctrine of equitable estoppel did not provide a basis for the trial court's summary judgment in favor of Traditions Bank and TBX Title. Accordingly, the summary judgment is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Main, J., concur.

Bolin and Shaw, JJ., concur in part and concur in the result.

Parker, Wise, and Bryan, JJ., concur in the result.

SHAW, Justice (concurring in part and concurring in the result).

I concur with the main opinion that any reliance upon the payoff statement in this case was not reasonable. As to the portion of the analysis in the main opinion regarding whether EvaBank "intended to induce reliance," I concur in the result.

Bolin, J., concurs.

      The property was also owned by William Heath Robertson and Heather Rose Robertson; however, they were not signatories to the purchase agreement and are not parties to this appeal.

      Although Williams is a nominal party to this appeal, our discussion references only Traditions Bank and TBX Title, the parties who jointly undertook to close the real-estate transaction. As noted, Williams, in his counterclaim against EvaBank, joined Traditions Bank's demand for a judgment declaring Traditions Bank the first lienholder on the property. Although it appears Williams did not file a separate summary-judgment motion as to EvaBank, he filed an appellee's brief in support of the summary judgment.

      Traditions Bank and TBX Title also assert that EvaBank is estopped from asserting a priority interest in the property by virtue of § 35-10-91(f), Ala. Code 1975, a section of the Alabama Residential Mortgage Satisfaction Act ("the Act") concerning erroneous payoff statements for mortgages securing residential property. Section 35-10-91(f) provides, in relevant part:
      "If a secured creditor determines that the payoff statement it provided was erroneous, the creditor may send a corrected payoff statement. If the entitled person or the person's authorized agent receives and has a reasonable opportunity to act upon a correct payoff statement before making payment, the corrected statement supersedes an earlier statement."
      Traditions Bank and TBX Title assert that, because EvaBank never provided a corrected payoff statement before the payoff proceeds were applied to the Michael S. Roberson loan, EvaBank is estopped from asserting a priority interest over the property. The Act, however, is inapplicable in this case because the payoff statement was requested by telephone. Section 35-10-91(g), Ala. Code 1975, specifically states that "[t]his section does not preclude, nor does it apply to, other methods of obtaining payoff information such as telephone calls, electronically, or other methods." (Emphasis added.) Moreover, it does not appear that the trial court relied on the Act in entering the summary judgment.


author: MOORE, Judge.

text:
    James L. HUBBARD v. James E. CASON, Austin Cason, Emitte P. Caldwell, and William Lee Morrow
    2160473
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Luke Montgomery of Montgomery Ponder, LLC, Birmingham, for appellant.
    William D. Davis III, Keene, New Hampshire, for James E. Cason and Austin Cason.
   MOORE, Judge.

James L. Hubbard appeals from a judgment of the Talladega Circuit Court ("the trial court") concluding, among other things, that Hubbard is the owner of an easement in Talladega County and that James E. Cason ("James") is entitled to a joint easement for ingress and egress over the west 20 feet of that easement, pursuant to adverse possession. We affirm the trial court's judgment.

Procedural History

On April 23, 2014, Hubbard filed a complaint against James and Austin Cason ("Austin"), seeking a judgment declaring the respective rights and obligations of the parties with regard to a 40-foot-wide and 982-foot-long strip of property ("the roadway") located in Talladega County that has been used as a road to access property belonging to Hubbard and James, among others. Hubbard asserted that he owned the roadway by virtue of a deed or, alternatively, by adverse possession; he asserted a claim of trespass against James and Austin and sought a preliminary injunction prohibiting them from using the roadway. James and Austin filed answers to the complaint, denying the allegations asserted by Hubbard.

On November 10, 2014, Hubbard filed an amended complaint, adding as a defendant Branch Banking and Trust Company ("BB & T"), which, according to the amended complaint, held a mortgage on property belonging to James; BB & T was later dismissed as a defendant after presenting evidence indicating that the mortgage it held on James's property had been satisfied. On May 5, 2015, Hubbard filed a motion for a summary judgment, arguing that he owned the roadway in fee simple. On June 17, 2015, James and Austin filed a response to Hubbard's summary-judgment motion in which they argued, among other things, that Hubbard had merely been granted a right-of-way in the roadway. James and Austin argued that James owns the roadway, subject to Hubbard's easement, and they sought an order from the trial court limiting other entities from using the roadway. Hubbard filed a reply to the response. On June 22, 2015, the trial court entered an order denying Hubbard's summary-judgment motion.

On July 31, 2015, Hubbard filed a second amended complaint, adding as defendants Emitte P. Caldwell and William Lee Morrow ("William"). Hubbard asked the trial court, in the event it determined that he was not the sole owner of the roadway in fee simple, to order that the roadway be sold and the proceeds divided among him and the other joint owners of the roadway. On January 4, 2016, Hubbard filed an application, with a supporting affidavit, for an entry of default against Caldwell and William. The trial court entered an order noting that Caldwell and William were subject to having default judgments entered against them but it reserved entering any such judgments until the presentation of Hubbard's case at trial. Following the entry of that order, Caldwell filed with the trial court a document indicating that he "denie[d] th[at] order."

Following a trial on August 29, 2016, the trial court entered a final judgment on February 15, 2017, in which it, among other things, set aside the entry of default against Caldwell; entered a default judgment in favor of Hubbard against William; and concluded, among other things, that Hubbard has superior paper title with regard to an easement in the roadway to the exclusion of the paper title asserted by James and that William owns the property on which the roadway is situated. The trial court enjoined James and Austin from blocking, impeding, or obstructing the easement or any part or portion thereof from Hubbard's use as set out in the deed conveying the easement to Hubbard; it also granted an easement in favor of James on the west 20 feet of the roadway, based on a finding of adverse possession, subject to the rights of William. The trial court denied all remaining claims not specifically addressed in the judgment. Hubbard timely filed his notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Facts

Steve Upchurch, a real-estate attorney, testified that he had performed a title examination on the roadway and that the first deed he had examined was a May 20, 1970, deed from M.E. Caldwell and Ruth Allen Caldwell to Mary C. Morrow and her husband, Edison L. Morrow ("the Morrows"); according to Upchurch, that deed had transferred the roadway and the property surrounding the roadway to the Morrows.

On March 24, 1986, the Morrows executed a deed in favor of David W. Challender and Troy Ann Challender; that deed stated, in pertinent part:

"[The Morrows] ... grant, bargain, sell and convey unto ... David W. Challender and wife, Troy Ann Challender, ... the following described real estate situated in Talladega County, Alabama, to-wit:
"A RIGHT OF WAY AND EASEMENT for road construction, maintenance, ingress, egress, utility construction, public dedication and every other right necessary to ensure the enjoyment and use of the property described as: [a description of a strip of property approximately 40 feet wide and 982 feet long].... TO HAVE AND TO HOLD to [David W. Challender and Troy Ann Challender], his, her, their heirs and assigns forever."

According to Hubbard, on August 11, 1986, the Challenders conveyed to Hubbard 40 acres of property that lies north of the roadway, in addition to the roadway itself. He stated that he had been told that he was purchasing the roadway in fee simple, rather than merely an easement in the roadway. The deed from the Challenders to Hubbard recites the same language regarding the roadway that appeared in the deed from the Morrows to the Challenders.

Caldwell testified that Mary C. Morrow was his mother and that Edison L. Morrow was his stepfather, that Edison had predeceased Mary, and that, upon Edison's death, the property in Edison's name had been transferred to Mary. On April 30, 1998, Mary transferred property to Caldwell that, according to Upchurch, was bounded on the east by the west boundary of the roadway. Upchurch testified that, on that same date, Mary had transferred to her other son, William, by deed, 26 acres of property, which included the roadway, and that, as a result of that deed, William owned the roadway in fee simple.

On June 22, 1998, Caldwell executed a deed in favor of James, which deed, according to Upchurch, purported to convey 20 feet of the roadway to James. Caldwell testified that, when he sold the property to James, there had been an old wagon road bed that went across the property and that it had been his understanding that he had sold half of the road bed to James and that the other half had belonged to his brother, but that the roadway had been a right-of-way for the Challenders to use.

Hubbard testified that he had sent a letter to James on December 1, 1998, because James had blocked the roadway with a travel trailer, a pile of rubbish, and other equipment that had kept him from accessing his property. He testified that David Challender had built up the roadway for traveling across it with vehicles and that Hubbard had finished building it up and had used it for over 30 years. Hubbard testified that he had known since December 1, 1998, when he had written the letter to James, that James and Austin had been using the roadway to access James's property. He testified that he thought James and Austin had done some upkeep on the roadway.

Austin testified that James is his brother and that he lives in a mobile home on the property owned by James. Austin testified that James had moved to the property in the 1990s and that he had moved onto the property in 2000. Austin stated that he had helped James build and repair the roadway that goes up to James's house. He stated that, since he had moved there in 2000, he had done repair work, including placing gravel, on the roadway. Austin testified that, at some point, James had been injured and confined to a wheelchair, but, he said, before that, James had also placed gravel on the roadway. According to Austin, he had also cut grass along the roadway and had kept up the roadway from the entrance of the roadway up to his mobile home. He stated that he had assisted in building a ramp from James's house onto the roadway, that log trucks had come in to build the ramp, and that those log trucks had blocked the roadway. Austin testified that he had had a pontoon boat parked on the side of the roadway after 2000 but that he had not placed anything across the roadway. He stated that he and James had parked vehicles on the side of the roadway but not across the roadway. Austin testified that there was a period in 2014 when the roadway had been blocked to keep loggers out.

Analysis

Hubbard argues on appeal that the trial court erred by concluding that James had proved ownership of an easement in the roadway by virtue of adverse possession, by denying his motion for a summary judgment, and by concluding that Hubbard does not own the roadway in fee simple, but has only an easement therein. We address the issues raised on appeal in a different order than presented by Hubbard in his brief on appeal.

To the extent that Hubbard argues that the trial court erred by denying his motion for a summary judgment, we note that "[t]his court does not review the denial of a summary judgment after a trial on the merits has been held." Franklin v. Woodmere at the Lake, 89 So.3d 144, 150 (Ala. Civ. App. 2011). Accordingly, we decline to further address Hubbard's argument on that point.

Hubbard next argues that the trial court erred by concluding that he owned an easement in the roadway, asserting instead that he owns the roadway in fee simple. Hubbard cites Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So.2d 219, 220-21 (1968), for the proposition that "the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it." Hubbard also cites Rowell v. Gulf, Mobile & Ohio Railroad, 248 Ala. 463, 28 So.2d 209 (1946), and Moss v. Williams, 822 So.2d 392, 398-99 (Ala. 2001), in support of his assertion that the language in the line of deeds transferring the roadway does not operate to limit the estate conveyed from title in fee simple to an easement. We disagree.

In Moss, our supreme court stated, in pertinent part:

" 'It is frequently stated that:
" ' "One of the rules in the construction of deeds is that if there be two clauses which are utterly inconsistent with each other, and which cannot be reconciled or made to stand together, the last shall give way to the first, the maxim being 'the first clause in a deed, and the last in a will, shall prevail.' " '
" Wilkins v. Ferguson, 294 Ala. 25, 29, 310 So.2d 879, 883 (1975) (Jones, J., concurring specially) (quoting Henry v. White, 257 Ala. 549, 60 So.2d 149 (1952) ) (emphasis added). More specifically, 'the granting clause in a deed determines the interest conveyed, and unless there is repugnancy, obscurity or ambiguity in that clause, it prevails over introductory statements or recitals in conflict therewith, and over the habendum, too, if that clause is contradictory or repugnant to it.' Slaten v. Loyd, 282 Ala. 485, 487-88, 213 So.2d 219, 220-21 (1968) (emphasis added). Where the granting clause, however, designates no particular estate, any intent to overcome the statutory presumption that the conveyance is of a fee-simple estate 'must of necessity be found in lucid, unambiguous language used to express it, rather than statements merely contradictory or repugnant to that found in [the] granting clause.' Slaten, 282 Ala. at 488, 213 So.2d at 221 (emphasis added)."

822 So.2d at 397.

In the present case, the clauses in the 1986 deed from the Morrows to the Challenders are not utterly inconsistent. Upchurch testified that the deed from the Morrows to the Challenders did not convey more than a right-of-way or easement and that, in his opinion, it was "the strongest easement [he] ha[d] ever seen." Thus, in accordance with Moss, it is unnecessary to consider the rules of construction as discussed therein, as urged by Hubbard on appeal.

In Holmes v. Compton, 273 Ala. 554, 555, 142 So.2d 697, 698 (1962), our supreme court considered a deed in which the granting clause, like in the present case, indicated that the owner did thereby " 'grant, bargain, sell and convey' " to the grantees, " 'their heirs and assigns, the following described real estate,' " which was followed by a description of property and a statement that " '[t]he grantor herein reserves to her self and her heirs one half of the oil and all minerals that may be discovered in said land.' " Our supreme court determined, in pertinent part:

"[T]he [lower] court held that where there is an inconsistency between the granting clause containing words of inheritance and statements in the habendum or clauses subsequent to the granting clause, the granting clause in the deed will prevail and the clause containing the reservation of mineral rights will be considered void.
"We do not take this view of the situation. Considering the entire deed we believe that a clear intention appears in the deed for the grantor to reserve certain mineral rights in the property. This is true although the granting clause contains words of inheritance. Accordingly there is no necessity to invoke any arbitrary rules of construction."

273 Ala. at 556, 142 So.2d at 698-99.

Although there are certain distinctions between the issue of mineral rights in Holmes and the creation of an easement in the present case, like in Holmes, a clear intention appears in the 1986 deed from the Morrows to the Challenders to convey an easement. As discussed in Moss, the granting clause in the present case, which appears on a preprinted form, refers to "real estate" but it does not specify the real estate to be conveyed. That description of what is to be conveyed appears below the preprinted language and specifies from the outset that what is to be conveyed is "A RIGHT OF WAY AND EASEMENT." The deed then clearly outlines the purposes therefor and conveys the rights necessary for use of the conveyed property as an easement. The language is clear and unambiguous that an easement was intended. Moreover, despite the use of the phrase "real estate" in the granting clause, there is nothing contradictory therein to indicate that more than an easement was intended to be conveyed. Accordingly, the Morrows conveyed to the Challenders an easement in the 1986 deed. "A landowner cannot convey a greater interest in property than he possesses." Chancy v. Chancy Lake Homeowners Ass'n, 55 So.3d 287, 297 (Ala. Civ. App. 2010). Thus, the Challenders could not have conveyed to Hubbard more than the easement they had been granted by the Morrows in the August 1986 deed. Accordingly, we affirm the trial court's judgment insofar as it concluded that Hubbard holds an easement in the roadway.

Hubbard also argues on appeal that James failed to prove that he has an easement in a portion of the roadway by virtue of adverse possession. Hubbard argues that James was not present at the trial and, thus, did not testify as to any acts of adverse possession. Hubbard fails, however, to cite any authority indicating that James's failure to personally appear at the trial precluded the trial court from finding that James had adversely possessed a portion of the roadway such that an easement was created in his favor.

" 'Rule 28(a)(10), Ala. R. App. P., requires that arguments in an appellant's brief contain "citations to the cases, statutes, other authorities, and parts of the record relied on." ' Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007). 'When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research.'
City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998)."

Salter v. Moseley, 101 So.3d 242, 247 (Ala. Civ. App. 2012). Accordingly, we decline to reverse the trial court's judgment on the basis of James's failure to appear at the trial.

Hubbard also notes that James and Austin failed to assert any affirmative defense or counterclaim of adverse possession at any time. Rule 15(b), Ala. R. Civ. P., provides, in pertinent part:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues."

Our supreme court has observed that "implied consent of the parties can be inferred from an opposing party's failure to object to introduction of evidence raising the disputed issue initially." International Rehab. Assocs., Inc. v. Adams, 613 So.2d 1207, 1213 (Ala. 1992). At trial, James and Austin's attorney solicited evidence on the issue of adverse possession without objection by Hubbard. Accordingly, we conclude that the issue whether James had acquired an easement in a portion of the roadway by virtue of adverse possession was tried by the implied consent of the parties.

Hubbard finally argues that James failed to prove adverse possession of a portion of the roadway.

"[W]hen we review a trial court's finding based on evidence the trial court received ore tenus, we do not reweigh the evidence. Mollohan v. Jelley, 925 So.2d 207, 210 (Ala. Civ. App. 2005) (' "Where a trial court receives ore tenus evidence, .... [t]his court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court." ' (quoting Amaro v. Amaro, 843 So.2d 787, 790-91 (Ala. Civ. App. 2002) ) ). If the trial court's finding regarding an adverse-possession issue or a boundary-line issue is based on evidence it received ore tenus, we must affirm that finding if it is supported by credible evidence. See Bohanon v. Edwards, [970 So.2d 777 (Ala. Civ. App. 2007) ] ; and Carr v. Rozelle, 521 So.2d 26, 28 (Ala. 1988) (' "A judgment of the trial court establishing a boundary line between coterminous landowners need not be supported by a great preponderance of the evidence; the judgment should be affirmed if, under any reasonable aspect of the case, the decree is supported by credible evidence." Graham v. McKinney, 445 So.2d 892, 894 (Ala. 1984).')."

Holifield v. Smith, 17 So.3d 1173, 1179 (Ala. Civ. App. 2008).

With regard to its conclusion that James is entitled to an easement in a portion of the roadway by adverse possession, the trial court stated, in pertinent part:

"The evidence supports [James's] claim of adverse possession for a joint easement with [Hubbard], along and upon the west 20 feet of the subject easement. Based upon the testimony, [James] has color of title by virtue of his deed from Caldwell for the West 20 feet of the subject easement. Further, from the testimony, he has for a period exceeding 10 years used the subject easement, and no other for ingress and egress to his residence. [James] has been in the open, continuous, exclusive, adverse and notorious possession of the West 20 feet of the subject easement as to [Hubbard], thereby being entitled to Judgment in his favor for a joint easement with [Hubbard] over and upon the same."

In Jones v. Johnson, 827 So.2d 768, 771-72 (Ala. 2002), our supreme court observed:

"An easement by prescription is acquired by use of ' "the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner." ' Blalock v. Conzelman, 751 So.2d 2, 4 (Ala. 1999) (quoting Bull v. Salsman, 435 So.2d 27, 29 (Ala. 1983) ).
"An easement by 'adverse use for the statutory period' requires satisfaction of the nontemporal elements of the prescriptive easement, plus one of the three additional requirements of Ala. Code 1975, § 6-5-200 :
" '(a) Adverse possession cannot confer or defeat title to land unless:
" '(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
" '(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
" '(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.'
"(Emphasis added.) If the requirements of 'adverse use for the statutory period' are met, then a use will ripen into an easement by adverse possession in 10 years, instead of the 20 years required to establish a prescriptive easement. Downey v. North Alabama Mineral Dev. Co., 420 So.2d 68 (Ala. 1982)."

The trial court cited Apley v. Tagert, 584 So.2d 816, 819 (Ala. 1991), in which our supreme court observed

"that it is not necessary that the party seeking an easement be the only one who has used or who has been entitled to use the road, 'so long as he used it under a claim of right independently of others.... [T]he user of another's land for purposes of passage, if continued for the prescriptive period, may operate to create an easement of a right of way, although the owner of the land also passes upon the same line....' [Belcher v. Belcher,] 284 Ala. [254] at 257, 224 So.2d [613] at 615 [ (1969) ]. (Emphasis added.)"

It appears undisputed that the June 22, 1998, deed from Caldwell to James purported to convey 20 feet of the roadway to James and that James had used the roadway to access his property since that time. Hubbard argues on appeal that James's and Austin's use of the roadway was permissive, rather than adverse. We note, however, that there is no testimony indicating that Hubbard had given James or Austin permission to use the roadway at any time. Hubbard points to a letter that he sent James on December 1, 1998, in which he enclosed his deed to the roadway and indicated that James had placed certain items along the roadway, but he did not indicate in that letter that he had given James permission to use the roadway. In a letter from Hubbard to James and Austin, dated November 16, 2009, Hubbard suggested that he had permitted James and Austin to use the roadway. That being the first indication that the use had been permissive, and that letter having been sent more than 10 years after James had begun using the roadway, we conclude that the trial court was within its discretion to determine from the evidence presented that James was entitled to an easement in a portion of the roadway by virtue of adverse use for the statutory period. Accordingly, we affirm the trial court's judgment.

AFFIRMED.

Thompson, P.J., and Pittman, J., concur.

Donaldson, J., concurs in part, concurs in the result in part, and dissents in part, with writing, which Thomas, J., joins.

DONALDSON, Judge, concurring in part, concurring in the result in part, and dissenting in part.

The trial court entered a judgment on February 15, 2017, finding, in part, that James L. Hubbard ("Hubbard") held an easement over a 40-foot-wide and 982-foot-long strip of property ("the roadway"). In that same judgment, the trial court held that James E. Cason ("Cason") had established the elements of a prescriptive easement in a portion of the roadway. The trial court held that William L. Morrow ("Morrow") held fee title to the roadway. In my view, Hubbard holds a fee interest in the roadway, not an easement.

The record shows that Edison L. Morrow and Mary C. Morrow held fee ownership of property that included the roadway. On March 24, 1986, Edison L. Morrow and Mary C. Morrow executed a deed to David W. Challender and Troy Ann Challender conveying an interest in the roadway. On August 11, 1986, the Challenders executed a deed to Hubbard. Both deeds state, in relevant part:

"[The grantor(s) ] ... grant, bargain, sell and convey unto ... [the grantee(s) ] ... the following described real estate situated in Talladega County, Alabama, to-wit:
"A RIGHT OF WAY AND EASEMENT for road construction, maintenance, ingress, egress, utility construction, public dedication and every other right necessary to ensure the enjoyment and use of the property described as: [a description of a strip of property approximately 40 feet wide and 982 feet long].
"....
"TO HAVE AND TO HOLD to [the grantee(s) ], his, her, their heirs and assigns forever."

(Emphasis added.)

"The determination of whether a deed is ambiguous is a question of law, and, thus, it is an issue to be determined by the trial court." Bain v. Gray, 835 So.2d 1034, 1037-38 (Ala. Civ. App. 2002) (citing Phillips v. Harris, 643 So.2d 974 (Ala. 1994) ).

" ' "[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo." ' " Moss v. Williams, 822 So.2d 392, 394 (Ala. 2001) (quoting Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999), quoting in turn Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997) ).

To determine whether a fee interest, or only an easement, in the roadway was conveyed by those deeds, I would start with § 35-4-2, Ala. Code 1975, which provides: "Every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended."

" 'Where the granting clause ... designates no particular estate, any intent to overcome the statutory presumption that the conveyance is of a fee-simple estate "must of necessity be found in lucid, unambiguous language used to express it, rather than statements merely contradictory or repugnant to that found in [the] granting clause." Slaten [v. Loyd], 282 Ala. [485] at 488, 213 So.2d [219] at 221 [ (1968) ] (emphasis added).' "

Barter v. Burton Garland Revocable Trust, 124 So.3d 152, 159 (Ala. Civ. App. 2013) (quoting Moss v. Williams, 822 So.2d at 397 ).

Although the deeds at issue in this case do not appear to convey a particular estate in the granting clauses, the language in the habendum clauses and warranty clauses is that of traditional words of inheritance indicating the conveyance of a fee-simple estate. See Hacker v. Carlisle, 388 So.2d 947, 950 (Ala. 1980) (noting that in that case "both the habendum and warranty clauses contain the traditional words of inheritance connoting a fee simple estate," i.e., to the grantee and the grantees' " 'heirs and assigns forever' ").

Cason points to the language "A RIGHT OF WAY AND EASEMENT" used in the description of the property in the deeds and argues that Hubbard acquired only an easement. In Moss, the supreme court reviewed a deed that appeared to convey a fee-simple interest in the granting clause but contained references to a right-of-way in the description of the property being conveyed. The supreme court explained:

"The mere use of the phrase 'right of way,' does not dictate a conclusion that the ... deeds conveyed an incorporeal interest, and not a fee. Rowell v. Gulf, M. & O.R.R., 248 Ala. 463, 28 So.2d 209 (1946), and Schneider v. Mobile County, 284 Ala. 304, 224 So.2d 657 (1969), are instructive. In Rowell, this court construed two deeds as conveying fee-simple interests where the granting clauses in those deeds conveyed a 'tract of land,' but the description of the land referred to the 'right of way herein conveyed.' 248 Ala. at 464, 28 So.2d at 210. Like the deeds at issue here, the deeds in Rowell did not define the nature of the conveyance in the granting clauses. The granting clauses in Rowell provided as follows:
" ' "[F]or the further consideration of the benefits to accrue to us from the construction of a railroad on the strip of land and on the station ground herein conveyed, do grant, bargain, sell and convey unto the said Mobile & Ohio Railroad Company for right of way and station grounds that certain tract of land situated in Mobile County, Alabama, more particularly described as follows, to wit:." '
" 248 Ala. at 464, 28 So.2d at 210 (emphasis on 'right of way' added). One of the Rowell deeds referred to '[t]he station grounds and right of way herein conveyed and the tract of land herein described.' 248 Ala. at 464, 28 So.2d at 210 (emphasis added). The habendum clauses were identical in each Rowell deed: 'To Have And To Hold unto the said Mobile & Ohio Railroad Company and its successors forever.' 248 Ala. at 464, 28 So.2d at 210 (emphasis added).
"... [T]he granting clause prevails over conflicting introductory statements and over the habendum clause, and [the] conveyance of a fee-simple estate is presumed unless it clearly appears from the deed that a less estate was intended....
"....
"... If the granting clauses convey with certainty a fee simple, then the 'subsequent words ... of doubtful import [e.g., right of way] ... cannot be construed as to contradict the preceding words which are certain.' Johnson [v. Harrison], 272 Ala. [210] at 213, 130 So.2d [35] at 37 [ (1961) ].
"Even if the granting clauses convey an uncertain interest, the use of the phrase 'right of way' in subsequent language of the deeds is not the type of 'lucid, unambiguous language used to express [the grantor's intent],' but, rather, language that is 'merely contradictory or repugnant to that found in [the] granting clause.' Slaten [v. Loyd], 282 [Ala. 485] at 488, 213 So.2d [219] at 221 [ (1968) ]."

Moss, 822 So.2d at 398-99. "Based on the language used in the deeds at issue in Moss, our supreme court determined that the deeds conveyed fee-simple title to the property at issue." Barter, 124 So.3d at 159.

In the deeds at issue in this case, the grantees are given the right of "public dedication" over the roadway, which is entirely consistent with fee ownership and wholly inconsistent with the conveyance of only an easement. Further, the grantees are also conveyed "every other right necessary to ensure the enjoyment and use of the [roadway]," without limitation. Based upon the supreme court's holdings in Moss, and this court's holding in Barter, I do not find the terms "right of way and easement" to be sufficient to defeat what otherwise appears to be the conveyance of a fee interest in the roadway. Therefore, I would reverse the judgment of the trial court as to its finding that Hubbard has only an easement in the roadway.

I concur in that portion of the main opinion declining to review the denial of Hubbard's summary-judgment motion.

The trial court expressly observed that, although Hubbard had raised the issue of his purported ownership of the roadway through his claims against Morrow, Cason never made a claim of any type against Morrow. The trial court expressly held that "there is no legal dispute between [Cason and Morrow] pled nor pending before this [c]ourt" and that Morrow was not bound by any determination made in the litigation with respect to Cason's interest in the roadway. Morrow's failure to answer Hubbard's claims did not serve to establish the validity of any unpleaded claims. See Rule 54(c), Ala. R. Civ. P. ("A judgment by default shall not be different in kind from ... that prayed for in the demand for judgment."); Rule 55(d), Ala. R. Civ. P. ("In all cases a judgment by default is subject to the limitations of Rule 54(c)."). Thus, if Hubbard has only an easement interest in the roadway, I am not clear how Cason could have established a claim of a prescriptive easement against Morrow without having asserted a cross-claim against Morrow. See Melton v. Harbor Pointe, LLC, 57 So.3d 695, 701 (Ala. 2010) (stating that to establish an easement by prescription the use must be adverse to the owner of the premises and with actual or presumptive knowledge of the owner). Nevertheless, because I would hold that Hubbard properly pleaded a claim against Morrow and established that he was the fee owner of the roadway, I agree with the holding that Cason's claim against Hubbard for a prescriptive easement was tried by the implied consent of the parties under Rule 15(b), Ala. R. Civ. P. I also agree that Cason presented sufficient evidence from which the trial court could find, based on the ore tenus rule, that he had established a prescriptive easement in the roadway. Therefore, I concur in the result as to that holding in the main opinion.

Thomas, J., concurs.

      Although the notice of appeal lists James, Austin, Caldwell, and William as appellees, only James and Austin have filed a brief with this court.

      The August 11, 1986, deed transferred the roadway, along with additional property, in undivided 1/3 interests each to Hubbard, Joseph G. Hubbard, and Raiford A. Tomlin and Nancy H. Tomlin. Hubbard later acquired the interests of Joseph G. Hubbard and the Tomlins in the roadway.

      To the extent Judge Donaldson, in his special writing, questions whether James could establish his claim for a prescriptive easement without including as a party the fee owner of the roadway, we note that the trial court determined that William was the owner of the roadway, that William was named as a defendant, that a default judgment was entered against William, and that William is named as a party to this appeal. Although Hubbard challenges on appeal the trial court's determination that James is entitled to an easement in a portion of the roadway by adverse possession, he fails to argue that James could not establish his claim for a prescriptive easement as to Hubbard when William is the owner of the roadway. "It is not the function of an appellate court ... to create and support an argument on behalf of an appellant." S.S. v. Jefferson Cty. Dep't of Human Res., 154 So.3d 1049, 1051 (Ala. Civ. App. 2014). Accordingly, we decline to further address any issues not raised on appeal with regard to James's entitlement to an easement in the roadway, pursuant to adverse possession.

      The grantees in the August 11, 1986, deed were Hubbard, Joseph G. Hubbard, Nancy H. Tomlin, and Raiford A. Tomlin. James Hubbard subsequently acquired the interests of Joseph G. Hubbard, Nancy H. Tomlin, and Raiford A. Tomlin in the roadway.

      The habendum clause in each deed and the warranty clause in each deed state that the grantor and their heirs "covenant with the said [grantee] and their heirs ... that [the grantor is] lawfully seized in fee simple ... [and] have a good right to sell and convey the same as aforesaid" and "will warrant and defend against the same."


text:
    Kellie Flynn FREEBECK v. Norman John FREEBECK
    Norman John Freebeck v. Kellie Flynn Freebeck
    2160528 2160561
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Joan-Marie Sullivan, Huntsville, for appellant/cross-appellee Kellie Flynn Freebeck.
    James Tassin, Tuscumbia, for appellee/cross-appellant Norman John Freebeck.
   MOORE, Judge.

In appeal number 2160528, Kellie Flynn Freebeck ("the wife") appeals from a divorce judgment entered by the Lauderdale Circuit Court ("the trial court"); in appeal number 2160561, Norman John Freebeck ("the husband") cross-appeals from that same judgment.

Procedural History

On September 29, 2015, the wife filed a complaint seeking a divorce from the husband. On October 6, 2015, the husband filed an answer. The trial court entered an order on October 20, 2015, that, among other things, awarded the wife pendente lite custody of the parties' children, M.F., whose date of birth is June 24, 2001, and S.F. and H.F., twins whose date of birth is March 3, 2004.

On June 6, 2016, the wife filed an emergency motion requesting that the trial court approve her relocation with the parties' children to Alexandria, Louisiana. On June 8, 2016, the husband filed an objection to the proposed relocation; he also filed a motion seeking custody of the children. On June 15, 2016, the wife filed a notice of relocation. A guardian ad litem was appointed for the children on June 16, 2016. The husband filed an objection to the notice of relocation on June 23, 2016. On June 27, 2016, the wife responded to the husband's objection to her notice of relocation. The wife filed a revised notice of relocation on July 8, 2016. On August 9, 2016, the trial court orally granted the wife's request to relocate to Alexandria, Louisiana, with the children.

After a trial, the trial court entered a final judgment on January 5, 2017, that, among other things, divorced the parties, divided the parties' marital property, and awarded the wife "$2,000.00 ... per month for a period of 84 months as rehabilitative/periodic alimony." With regard to custody, the parties were awarded joint legal custody of the children and the wife was awarded "primary" physical custody of the children. The judgment specifically stated:

"If the parties cannot agree on legal custody issues, [the husband] will have ultimate decision making authority related to any and all medical, psychological, mental, and orthodontic care. If the parties cannot agree, [the wife] shall have ultimate decision making authority concerning religious, cultural, athletic and academic affairs."

With regard to the husband's visitation, the judgment provided that the husband would have visitation with the children on any weekend in which the children have a "long weekend" (defined as "the children are out of school any day or days before Saturday and/or the children are out of school on any day after Sunday"), and provided that the husband has the option of exercising that visitation in Alexandria or at his residence in Alabama. For any month not containing a "long weekend, the husband was to have visitation the first weekend of that month in Alexandria. In addition, the husband was awarded visitation the third weekend of every month, and he has the option of exercising that visitation in Alexandria or at his residence in Alabama. The husband was also awarded visitation during the Thanksgiving and Christmas holidays, during the children's "spring break" from school, and during the summer "beginning the first Saturday in June to the second Saturday in July and Saturday to Saturday the last full week of July." The judgment further provided: "Every time [the husband] drives the entire distance to Alexandria for visitation, [the wife] will be required to deliver the children to Florence on the next scheduled visitation."

The husband was ordered to pay $1,791 a month in child support, and the parties were ordered to "split all uncovered medical, hospitalization, dental and opthamolog[y] expenses incurred by the minor children."

On January 27, 2017, the wife filed a postjudgment motion challenging, among other things, the trial court's award of alimony, the trial court's visitation schedule, and the trial court's award to the husband of ultimate decision-making authority regarding the children's medical, psychological, mental, and orthodontic care. On February 3, 2017, the husband filed a postjudgment motion. The wife filed an amendment to her postjudgment motion on February 6, 2017. On February 21, 2017, the trial court entered separate orders denying the parties' respective postjudgment motions.

On April 3, 2017, the wife filed her notice of appeal. On April 12, 2017, the husband filed his notice of cross-appeal.

Discussion

I. The Wife's Appeal-Appeal No. 2160528

On appeal, the wife first argues that the trial court erred in denying her postjudgment motion without holding a hearing.

" 'This court has held that
" ' "[g]enerally, a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court's failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221."
" ' Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007) ; see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala. Civ. App. 1988) ("[ Rule 59(g) ] mandates that, when a hearing is requested on a motion for new trial, the hearing must be granted.").
" '[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) ("A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g) ; however, that error is not necessarily reversible error."). "On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule." Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996) ; see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) ("Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found."). The Alabama Supreme Court has stated:
" ' "Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court."
" ' Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, "[w]hen there is probable merit to the motion, the error cannot be considered harmless." Dubose, 964 So.2d at 46.'
" Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010)."

Kent v. Herchenhan, 215 So.3d 1079, 1082-83 (Ala. Civ. App. 2016).

In this case, we conclude that at least one of the issues raised in the wife's postjudgment motion-whether the trial court exceeded its discretion in setting the husband's visitation schedule-has probable merit.

" 'Visitation, like custody, is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong.' Cohn v. Cohn, 658 So.2d 479, 482 (Ala. Civ. App. 1994). Visitation is determined on a case-by-case basis, and the trial court, in ruling on visitation, is guided by the children's best interests. Id."

Carr v. Howard, 777 So.2d 738, 741-42 (Ala. Civ. App. 2000).

At the trial in this case, the visitation plan proposed by the children's guardian ad litem was introduced as an exhibit. That plan provided that the husband would exercise visitation during "long weekends" and that, during any month in which there was no "long weekend," the husband would exercise visitation on the third weekend of that month. The guardian ad litem's proposed plan also provided that the husband could "have visitation on the first [weekend] (or third [weekend] if it is holiday weekend) in LeCompte[, Louisiana,] or surrounding area." In addition, the guardian ad litem proposed that the husband receive visitation during the Thanksgiving and Christmas holidays, during spring break, and during the children's summer vacation.

At the trial, both parties expressed agreement, for the most part, with the guardian ad litem's proposed plan. The testimony of both parties indicated that they were in agreement that having the children travel 16 hours round-trip to the husband's residence in Alabama for visitation more than once per month was not in the best interests of the children. The husband specifically stated that he had suggested no more than one trip per month because "we can't do that to the children every other weekend." The wife further noted that requiring the children to travel twice per month interfered with the children's homework and school projects. In the final judgment, however, the trial court awarded the husband visitation on any weekend in which the children have a "long weekend" break from school; the trial court also provided the husband the option of exercising that visitation in Alexandria or at the husband's residence in Alabama. For any month that does not contain a "long weekend," the husband was awarded visitation the first weekend of that month in Alexandria. In addition, the husband was awarded visitation on the third weekend of every month, with the husband having the option of exercising that visitation in Alexandria or at the husband's residence in Alabama. The trial court's visitation schedule gives the husband the option of requiring the children to visit at his residence in Alabama twice per month in the months that contain a "long weekend" that does not occur on the third weekend of that month. Considering that both parties had agreed that traveling to the husband's residence in Alabama more than once per month was not in the best interests of the children, we cannot conclude that the wife's argument challenging the trial court's visitation provision is without probable merit. Indeed, this court has held that similar provisions requiring bimonthly travel of lengthy duration to be an abuse of discretion. See, e.g., L.M. v. K.A., 177 So.3d 1174, 1182 (Ala. Civ. App. 2015) (reversing judgment requiring child to fly alone from Colorado to Alabama at least twice a month); Carr, 777 So.2d at 742 (reversing trial court's judgment requiring the children to fly from Chicago to Alabama every other weekend).

"Because we cannot conclude that the [wife's] postjudgment motion has " 'no probable merit' " and because we cannot " 'resolve[ ] the issues presented ... as a matter of law, adversely to the [wife],' " we cannot conclude that the [trial] court's error in failing to hold a hearing on the [wife's] postjudgment motion was harmless." Kent, 215 So.3d at 1085 (quoting Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010) ). Therefore, we reverse the trial court's judgment and remand the cause with instructions to the trial court to hold a hearing on the wife's postjudgment motion. Because we have already determined that at least one issue raised in the wife's postjudgment motion has probable merit, we pretermit discussion of the wife's remaining arguments on appeal. The trial court is instructed to hear arguments regarding all issues raised in the wife's postjudgment motion at the postjudgment hearing.

II. The Husband's Cross-Appeal-Appeal No. 2160561

In his cross-appeal, the husband argues that the trial court erred in applying the factors set forth in Ala. Code 1975, § 30-3-169.3(a), in determining the wife's request to relocate to Louisiana with the children. He argues that those factors should be considered in determining whether a change of custody should take place but not in determining whether a parent may relocate with the children. Initially, we note that the husband did not make this specific argument to the trial court. "This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). Even if we did consider the husband's argument, however, there would be no basis for reversal because Ala. Code 1975, § 30-3-169.7, clearly provides: "If the issue of change of principal residence of a child is presented in a petition for divorce or dissolution of a marriage or other petition to determine custody of or visitation with a child, the court shall consider, among other evidence, the factors set forth in [§§] 30-3-169.2 and 30-3-169.3[, Ala. Code 1975,] in making its initial determination." See also Lackey v. Lackey, 18 So.3d 393, 400-01 (Ala. Civ. App. 2009).

Based on the foregoing, we affirm the trial court's judgment to the extent that the husband challenges the trial court's consideration of the factors set forth in § 30-3-169.3(a).

The motion for attorney's fees filed by the husband is denied.

2160528-REVERSED AND REMANDED WITH INSTRUCTIONS.

2160561-AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

      We interpret the divorce judgment as awarding the wife sole physical custody of the children. See, e.g., Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).