REL: 09/26/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter
. Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter

. 

# SUPRE ME CO URT O F ALA BAMA

SPECI AL TE RM, 2 014

_____ _____ _____ _____ 11303 78

_____ _____ _____ _____ Jean S. Gr ay

v. Larry O. B ain a nd Sh aron Johns ton Appea l fro m Elm ore C ircui t Cou rt

(CV-9 9-023 8)

MURDO CK, J ustic e.
Jean S. Gray ap p e a l s f rom two order s of the Elmor e Circu it Court in an actio n filed again st Larry O. Bain and
Sharo n Johns ton in which Gray sough t a judgm ent decla ring that
she o wned a par cel o f lan d (he reina fter "the parce l") a nd an11303 78

injun ction preve nting Bain and Johns ton from asser tin g a ny right s to the parce l. We concl ude that the trial court erred
i n g ranti ng a Rule 60(b) , Ala. R. Civ. P., motio n fil e d b y Bain and J ohnst on th at se t asi de a settl ement of t he ac tion.

I. F acts and P roced ural Histo ry This actio n has been ap p e a l ed twice befor e. In Bain v. Gray , 8 3 5 S o . 2d 1034 (Ala. Civ. App. 2002) ("Bai n I"), the
Court of Civil Appea ls summa rized the perti nent under l y i ng
facts of t he di spute betw een t he pa rties

.

"The .05-a cre parce l in dispu te is l o c a t ed in the K o w a liga Bay Estat es subdi visio n in Elmor e Count y. The recor d ind i c a t es that the parce l is a rocky , narro w strip of land that slope s steep ly down on its west side into a slough on Lake Martin. The parce l is borde red to the east by Big Oak Drive, to the north by Cove Drive , and to the south by Popla r Drive

. "The recor d conta ins a copy of the origi nal subdi visio n plat filed in Septe mber 1 9 53. The subdi visio n plat divid es the prope rty compo sing the subdi visio n into units , then into block s, and then i n t o lots. From our revie w of the recor d, i t appea rs that all of the sma l l est divis ions of the prope rty in the subdi visio n pla t are desig nated by lot numbe rs, with the excep tion of the dispu ted parce l. H o wever , on the subdi visio n plat, three l i n e s are drawn acros s the parce l. The recor d indic ates that those lines , if conti nued acros s Big Oak Drive , m a t c h the lines divid ing Lots 2, 3, and 4, of Block No. 5, Unit No. 2 , o f the Kowal iga Bay Estat es su bdivi sion.

211303 78 "Gray owns Lots 2, 3, and 4, of Block No. 5,

Unit No. 2, of the Kowal iga Bay Estat es subdi visio n, the lots direc t l y acros s Big Oak Drive from the parce l. [Bain and Johns ton] own Lot 13 and Lot 14 of Block 8, Unit 2, of the Kowal iga Bay Estat es subdi visio n. One of [Bain and Jo h nston 's] lots is dir e c t ly acros s the sloug h from the parce l. The parti es' deeds descr ibe their respe ctive prope rties by lot, block , and unit numbe rs; all o f t h e deeds prece ding those deeds date b a c k to the time the su b d i v ision plat was recor ded, and descr ibe the prope rties by lot, block , and unit numbe rs. None of the deeds to the part i es' prope rties conta in a metes -and- bound s descr iptio n, and none of the deeds refer ence or de scrib e the parc el."
835 S o. 2d at 1 035-3 6.
On June 9, 1999, Gray and her husba nd Burl A. Gray filed
this actio n ask ing s eekin g dec larat ory a nd in junct ive r elief

conce rning owner ship of the parce l. Ba i n a n d Johns ton 1

answe red and filed a count ercla im also seeki ng decla rator y and injun ctive reli ef co ncern ing o wners hip o f the parc el.

"On Septe mber 28, 200 0, [Bain and Johns ton] f i led a motio n for a summa ry judgm ent. On Decem ber 22, 2000, Jean Gray filed a mot i o n f o r a summa ry judgm ent and a brief in suppo rt o f t h at motio n. The tri a l court held a heari ng on both parti es' summa ry-ju dgmen t motio ns. On May 4, 2001, the trial court denie d the parti es' summa ry-ju dgmen t motio ns and issue d an order divid ing the parce l b e t ween the parti es. [Bain and Johns ton] filed a motio n to alter , amend , or vacat e the trial court 's

Burl Gray died o n A u g ust 27, 1999. Jean Gray moved to 1 have him dismi ssed as a party , and the trial court grant ed that motio n. 311303 78

May 4 , 2 0 01, order ; that motio n was denie d by opera tion of law. [ Bain and Johns ton] appea led to the Supre me Court of Alaba ma; Gray c ross- appea led. The Supre me Court of Alaba ma trans ferre d the appea ls to [the Court of Civil Appea ls] pursu ant to § 12- 2-7(6 ), Al a. Co de 19 75."
835 S o. 2d at 1 035.

In Bain I, the Court of Civil Appea ls expla ined that the
trial cour t had divi ded t he pa rcel betwe en th e par ties after
concl uding that the origi nal inten t of th e s u bdivi sion
devel opers w a s a mbigu ous. The Court of Civil Appea ls

con c l u d e d that the trial court had erred in divid ing the
parce l at the summa ry-ju dgmen t stage , becau se, it held, "if
the trial court deter mines that the deed is ambig uous , t he
inten t of the grant or becom es a factu al issue ," and "[w]h en a genui ne issue of mater ial fact exist s regar ding the inten t of
the grant or in the deed, a summa ry j udgme nt is not
appro priat e." 835 So. 2d at 1038. The Court of Civil Appea ls
also noted that "the trial court erred in divid ing the parce l
in a manne r incon siste nt with t h e parti es' asser tions and
unsup porte d by th e evide nce prese nted by the parti es at the
heari ng on the parti e s ' summa ry-ju dgmen t motio ns." Id.
Accor dingl y, the Court of Civil Appea ls rever sed the t rial

411303 78

court 's judgm ent and rem a n d ed the cause for furth er
proce eding s.
For reaso ns not fully expla ined by the par ties, nothi ng
furth er occur red in this actio n for sever al years . On Augus t 2 19, 2011, follo wing the retir ement of presi ding Judge John
Roche ste r, this case was assig ned to Judge Sible y Reyno lds.
Follo wing sever al co ntinu ances , the tria l cou rt se t the case
for a May 30, 2 012, trial date
. On M a y 3 0 , 2012, with all parti es prese nt, a settl ement
agree ment was reach ed durin g a reces s in the proce eding s. The
terms of the settl ement were read into the reco r d b y Gray' s
attor ney. As the terms were read, the parti es and their

attor neys inter jecte d to seek clari ficat ion on certa in point s.
One such inter jecti on was made by Bain and Johns ton's couns el,
who s tated :
"MR. HAYNE S: Judge , on the very f i r st parag raph. Bob, you said this earli er but did not recit e it then. I believe it's an overs ight or I didn' t hear i t
. We belie ve that the water front that Ms. G r a y would get would be more or less a p p roxim ately eight y-sev en feet, but that speci fic numbe r is not contr ollin g. It is the point s t h at he refer red to going thro ugh t he de lta p oints

.

T h e parti es do indic ate that attem pts to settl e t h e 2 dispu te we re ma de du ring this perio d.
511303 78

"THE COURT : That will be establi shed by the Speak s surve y.
"MR. HAYNE S: C orrec t.
"MR. RENEA U [Gray 's couns el]: He ' s right

. That' s in my note s and I ne glect ed to say it." (Emph asis ad ded.) After sever al such excha nges betwe en the parti es, their attor neys, and the trial court , the trial court
asked Bain and Johns ton's atto rney:
"Do w e hav e an agree ment?
MR. H AYNES : Ye s, si r.
"THE COURT : Ms. Gray, is that your under stand ing of the a greem ent?
"MS. GRAY: I wish you could see the pictu res of what is bu ilt o ver t here.
"THE COURT : Ms. Gray, if I start takin g testimon y, I'm n o t going to look. Is that your under stand ing of th e agr eemen t?
"MS. GRAY: Yes
. "THE COURT : Is that your agre ement ? "MS, GRAY: Yes
. "THE COURT : Mr. Bain, is that your under stand ing of the a greem ent?
"MR. BAIN: Yes , sir

. "THE COURT : Is that your agre ement ?

611303 78

MR. BAIN: The only probl em I have is when we agree d in the back room to what their first offer was about the prope rty lines going acros s from three and going d o w n to, what was that point , delta point four, we agree d to that. We didn' t reall y agree to come over a foot and out a foot and do that. We agree d to what they offer ed. You know, we have been tryin g to settl e this for a long, long time, thirt een years . You know, just to have to chang e it a f t e r we walk out h ere, we're not reall y hap py.
"THE COURT : Mr. Bain, we're five minut es from that. T h at's what I was askin g. Is that y o u r under stand ing o f the agre ement ?
"MR. BAIN: Yes , sir

. "THE COURT : Is that your agre ement ?
"MR. BAIN: Yes , sir

.

" THE COURT : Ms. Johns ton, is that your under stand ing o f the agre ement ?
"MS. JOHNS TON: Yes, sir.
"THE COURT : Is that your agre ement ?
"MS. JOHNS TON: Uh-h uh (p ositi ve re spons e).
"THE COURT : Thank you, I will enter that order just as so on as it's pres ented
. .. ."
On June 12, 2012, the trial court enter ed an order based

on the terms of the settl ement
. In perti nent part, the order provi ded:

" 1

. The parti es will divid e absol ute owner ship of the dispu ted prope rty wi t h the Plain tiff, Jean S. Gray (her e inaft er refer red to as 'Gray ') recei ving

711303 78

the north ern porti on of the dispu ted prope rty (whic h has been label ed as P a r cel 57 by the Elmor e Count y Reven ue Commi ssion er's Offic e) and the Defen dants , Larry O. Bain and Sharo n Johns ton ( h e r einaf ter refer red to a s 'Bain and Johns ton') recei ving the south ern porti on of same. [Bain a n d J ohnst on's] surve yor, Steph en Speak s, shall at [ Bain and Johns ton's ] expen s e, prepa re a bound ary surve y of the p a r c els to be recei ved by the respe ctive parti es. Said surve y shall be in accor dance with a surve y previ ously prepa red by Speak s w i t h the addit ion of the bound ary line which will now divid e the prope rty into the two parce ls to be recei ved by the respe ctive parti es. The c ommon bound ary line shall begin on the west side of Big Oak Drive at the point which would repre sent the b o u ndary line betwe en Lot 3 and Lot 4, Block 5, Unit 2 of Kowal iga Bay Estat es. Begin ning at said point , the bound ary line shall proce ed to a point which is one foot from the point desig nated as the Delta Point betwe en L-4 and L-5 on the previ ous S p e aks surve y. Said point shall be deter mined in a manne r which will cause the remai nder of the bound ary line which inter sects said Delta Point t o be perpe ndicu lar to Big Oak Drive

. The expre ss purpo se of the above is to cause the prope rty li n e t o enter Lake Marti n at an angle perpe ndicu lar t o Big Oak Drive

.

" 2

. Upon compl etion of the new Speak s surve y se t forth in the proce eding parag raph, the parti es shall excha nge Quitc laim Deeds where in each party relin quis h e s any and all claim of inter est in the prope rty to be recei ved by the oppos ing party
. Each party , at its own expen se, shall record their Quitclaim Deed in the Office of the Judge of Proba te of Elmor e C o u n ty, Alaba ma, withi n seven days of the r eceip t of same, and immed iatel y there after shall deliv er a recor ded c o py of said Quitc laim Deed to the Elmor e Reven ue Commi ssion er's Offic e so that the prope rty may be appro priat ely asses sed for ad va lorem tax purpo ses i n the futu re.

811303 78

"3. The Court hereb y order s the Elmor e Reven ue Commi ssion er's Offic e to termi nate, begin ning with the next ad valor em tax year, its assess ment of the dispu ted prope rty as Parce l 57 (whic h the pa r t ies curre ntly have doubl e asses sed), and immed iatel y there after to begin asses sing t h e prope rty to the respe ctive parti es in accor dance with the descr iptio ns set fo r in said Quitc laim Deeds refer enced abov e.
"4. Bain and J ohnst on will not oppos e, publi cly or priva tely, any attem pt by Gray to vacate Cove Drive west of its inter secti on wi t h Big Oak Drive (the same lying betwe en Lots 1 and 2, Block 5, Unit 2 of Kowal iga B ay Es tates ).
"5. Bain and Johns ton will not oppos e Gray' s effor ts to obtai n the appro priat e licen s e o r permi t from Alaba ma Power Compa ny to build a dock or a pier, inclu d ing a ramp or stair way to said dock/ pier abutt ing the prope rty descr ibed in her Quitc laim Deed, nor will they oppos e the const ructi on of same. L i k e w i s e , G r a y w i l l n o t o p p o s e t h e licen sing/ permi tting or const ructi on of a pier/ dock by Bain and Johns ton abutt ing the prope rty descr ibed in their Quitc laim Deed
. A n y pier/ dock to be con struc ted by eithe r party must be done in accor dance with the appli cable regul ation s of Alaba ma Po wer C ompan y. "6. Bain and Johnst on shall have the right , but not the oblig ation , to maint ain the seawa ll which the y previ ously built on prope rty descr ibed in Gray' s Quitc laim Deed. Bain and Johns ton, howev er, shall not have the right to chang e or incre ase the heigh t of said seawa ll witho ut first obtai n i n g writt en permi ssion from Gray to d o so.
"7. Nei t h e r party may const ruct any struc ture or impro vemen ts on the prope rty d e s c ribed in their respe ctive Quitc laim Deeds , other than as set forth

911303 78

abo v e, witho ut first obtai ning the writt en conse nt of th e oth er pa rty.
"8. Neith er party shall in a n y way inten tiona lly haras s or annoy the other party or creat e a nuisa nce on the prope rty descr ibed in their respe ctive Quitclaim Deed s. "9. The terms of this Order shall be appur tenan t to a n d shall run with the land so as to be bindi ng o n the succe ssors , assig nees or heirs of the respe ctive parti es. "10. A sepa rate Order to Reven ue Commi ssion er will be signe d by the Court concu rrent ly herew ith. Said order to Reven ue Commi ssion er shall be deliv ered to the Reven ue Commi ssion er's Offic e and furth er, a c o py of same shall be recor ded in the re c o r d s mai n t a ined in the Elmor e Proba te Offic e so as to provi de ap propr iate notic e of the t erms of sa me." (Emph asis added .) A s the sett lemen t agr eemen t pro vided , the
trial court also execu ted on June 12, 2012, an order direc ted
to the Elmor e Reven ue Commi ssion er's offic e, order ing t h at
offic e to begin asses sing the par c el in accor dance with the quitc laim deeds it w ould recei ve de scrib ing t he tw o seg ments
of th e par cel.
Accor ding to Bain and Johns ton, a fter the surve y work began on the parce l, it becam e clear to them that the bound ary line descr ibed in t h e settl ement agree ment was not the
bound ary l i n e they thoug ht they were agree ing to. Bain and
Johns ton " belie ved t hat t he bo undar y lin e bet ween Lots 4 and

1011303 78

5 start ed at the end of the seawa ll they built on the Big Oak
side of the sloug h. Inst e a d , t h e point was close r to the
creek end of th e slo ugh t hen t hey h ad an ticip ated. "
O n J uly 24, 2012, Bain and Johns ton filed a "Moti on fo r Relie f from Judgm ent" pursu ant to Rule 60(b) , Ala. R. Civ. P. In pe rtine nt pa rt, t he mo tion asser ted: "[A] mista ke was made when [Bain and Johns t o n] 'agre ed' to a settl ement prior to the comme nceme nt of the trial

. [Bain and Johns ton] telep honed J i m Bain, an emplo yee of their busines s who is also the broth er of Larry Bain, an d a sked him to go and deter mine where the prope rty bound ary line would be if they propo sed settl ement were accep ted. Unfor tunat ely, Jim Bain mista kenly 'loca ted' the bound ar y line and calle d back expla ining where he thoug ht the line would be s ituat ed betwe en [Gray ] and [Bain and Johns ton]. Jim Bain' s under st andin g was erron eous and his descr iptio n of where the line would be was off by sever al feet such that [Bain and J o hnsto n] would never have agree d to the propo se d settl ement
. [Bain and Johns ton's ] under stand ing of the settl ement at the time the settle ment was made, b a sed on what they were mista kenly infor med by Jim Bain, was simpl y wro ng."
On July 25, 2012, Gray filed a respo nse in oppos ition to
the "Moti on for Relie f from Judgm ent." In her respo nse, Gray
noted that the settl ement had occu r r ed "[a]f ter more than
three (3) hours of negot iatio n." Gray furth er obser ved that, "[w]h ile couns el were readi n g their agree ment into the recor d i n the prese nce of the Court , sever al disag reeme nts arose , which ultim ately were resol ved

1111303 78

wit h i n put from the Court
. The final agree ment to the settl ement read into the recor d was delay ed over the lunch brea k at the reque st of [Bain and J o hnsto n] so that they could have an emplo yee plot the exact locat ion of the bound ary line to which the parti es we re ag reein g." Gray argue d that relie f under Rule 60(b) "is an extra ordin ary
remed y tha t is not t o be used for t he pu rpose of r eliev ing a party from the effec ts of a free and volun tary conse nt judgm ent."
On Septe mber 26, 2012, the trial court held a heari ng on Bain and J ohnst on's Rule 60(b) moti on. The t rial court took
testi mony from witne sses as to wheth er Bain and Johns ton were mista ken as to the actua l bound ary line divid i ng the parce l
when they agree d to the s ettle ment on Ma y 30, 2012

. Jim Bain testi fied that on May 30, 2 0 1 2, his broth er Larry calle d him while Jim was at lunch and asked him to drive

out t o the parc el an d to measu re th e dis tance from one point

to an other . Sp ecifi cally , "[Lar ry Bain] explained to me that he was conce rned about where a c e r tain dista nce would hit on the shore line. He asked me to go to his house and acros s the water way and mea s u r e from a boath ouse build ing back in a, I g u e s s t h at would be a, south erly direc tion and tell him where that dista nce hit. There is a big rock and a bench that was built out of stone that he wante d to know how far away

1211303 78

from that boath ouse it was. And I give him that infor matio n."
Jim Bain expla ined that the dista nce from the boath ouse to the "big rock" was 83 fe et, o r 85 feet to th e cen ter o f the rock
b e c a use it is "a wide rock. " He testi fied that he re l a t e d
this infor matio n to his broth er and that he also sent some pictu res u sing his c ellul ar te lepho ne. Jim B ain s tated that
he si mply measu red t he di stanc e bet ween two p oints that were given to h im by Larr y Bai n in that telep hone conve rsati on. Larry Bain next testi fied as to what he asked his broth er Jim t o mea sure.
"A. I asked him to go to what we thoug ht was the prope rty line, whic h was next to their boath ouse, where we built a seawa ll alrea dy and measu re over eight y-thr ee feet becau se those were num b e rs that were being given to us, you know, on some s o r t of split of the prope rty. That' s wha t he told us. The s eawal l -- "Q. Just answe r the quest ion. What was your under stand ing as to the signi fican ce of the eight y-thr ee feet as you negot iated the settl ement of y our c ase f or th is pr opert y?
"A. Well, that' s where he told us where t h at big rock was, so w e f e l t like we could agree on some sort of di visio n rig ht in ther e."
Bain asser ted that the re a s on it was impor tant for the
bound ary line to be where he thoug ht it was as oppos ed to what

1311303 78

was descr ibed in the settl ement agree ment was that the latte r
bound ary line would allow G r a y to build a pier that could
block Bain and Johns ton's acces s to the water for loadi ng and
unloa ding equip ment in th eir b usine ss.
On cross -exam inati on, Bain was asked who made the mista ke
at issue , and he respo nded: "I'm going to have to say it was
my mista ke, my total mista ke becau se that is where I was

assum ing t he pr opert y lin e was , was next to t hat b oatho use."
He was then asked about what he h eard on the day the
settl ement agre ement was read into the r ecord
. "Q. N o w , when we were in court befor e Judge Reyno lds and we read the commo n bound ar y l i ne shall begin at the w e s t side of Big Oak Drive at a point which will repre sent the bound ary lin e b etwee n lot three and lot four of block five u n i t two of Kowal iga Bay Estat es, you under stood wher e tha t was , did n't y ou?
"A. N o, sir, I didn' t under stand where i t w a s becau se I could n't see it on a map. I mean, you know, I could n't see it -- where it was in a djace nt to the land. That is why we had someb ody g o o u t and try to give us an idea of where that posi tion was. "Q. Well, you under stood where it was on the surve y we we re lo oking at t hat d ay, d idn't you?
"A. Well, I'm not a surve yor, but I could see it on the surve y. That never told me where it was on the p roper ty --

1411303 78

"Q. All r ight.
"A. -- as I wa s loo king from my ho use, no, s ir. "Q. But you knew that that was the s t a rting point of this bound ary line that we were agree ing to?
"A. Yes. I belie ve that is what y'all were sayin g was t he st artin g lin e. "Q. Then we said begin ning at this point the bound ary line shall proce ed to a point which is one foot from the point desig nated at the delta poi n t b e tween L-4 and L-5 on the previ ous Speak s sur vey. And y ou he ard t hat, didn' t you ?
"A. I did hear that
. "Q. And you were able to look at the Speak s surve y and s ee wh ere t hat p oint was?
"A. I think you threw that out th ere after -- that littl e angle you put on there was n o t o n the surve y. That you chang ed the angle on, I don't think that was there
. "Q. But the delta point d idn't chang e is what I'm sayin g?
"A. That' s rig ht. "Q. You k new w here that delta poin t was ?
"A. I cou ld se e it on th e sur vey, yes, sir. "Q. So you knew that it was from that point betwe en lot three and four on the west side of Big Oak Drive to t hat d elta point ?
"A. I knew it was somew here in betwe en there , yes, sir.

1511303 78

"Q. Then we said, said point shall be deter mined in a manne r wh i ch will cause the remai nder of the bound ary line which inter sects the d e l ta point to be perpe ndicu lar t o Big Oak Drive

. I left out the part where I said it shoul d be one foot from the delta po i n t
. So you knew that day that the line was going to be perpe ndic u lar to Big Oak Drive exten ding into the la k e , didn' t you?
"A. Yes, sir. "Q. You didn' t say anyth ing to anybo dy that day a b o u t , wait a minut e, I told my broth er t o measu re eight y-thr ee feet and it is not the same?
"A. No, becau se we felt like that would have been a fair split on the prope rty where he told us the eight y-thr ee feet was. We felt l i ke we could live with that. "Q. But you knew when the settl ement was being read into the Court t h a t d ay that there was no menti on of eigh ty-th ree f eet?
"A. Well, that was just what we were being told. It was going to be eight y-thr e e - - seven feet dispu te, but that is not even what that i s on that surve y. "Q. Well, Mr. Bain, liste n to me. That may h a v e been wh a t your lawye rs told you, but that is not what was discu ssed in open court with Judge Reyno lds f or th e agr eemen t, wa s it?
"A. No, s ir."
Sharo n Johns ton also testi fied as to where she belie ved they we r e agree ing that the bound ary line would be locat ed,

1611303 78

echoi ng Bain' s under stand ing. On cross -exam inati on, Johns ton

was asked if, at the tim e t h e settl ement agree ment was read
into the r ecord , she unde rstoo d the loca tion of th e bou ndary
line that was b eing descr ibed. She resp onded :
"We'r e tryin g to imagi ne eight y-thr ee feet and where it is in relat ion to the bench and the rock and that sort of thing becau se we know that prope rty. So that is why we asked someo ne to go out th e r e . So no, I didn' t under stand to the degre e that yo u a r e sayin g. This was a map that was sitti ng by itsel f with no trees , no rocks, no seawall , nothi ng. So we could not visua lize where this actua lly was going to be.
... So witho ut seein g this actua l surve y, we could not make a rat ional e dec ision ." Gray' s att orney furt her e xplor ed Jo hnsto n's u nders tandi ng at
the t ime t he se ttlem ent a greem ent w as ma de: "Q.
... You under stood on May 30th when we were in here and when you made the a g reeme nt that the bound ary line as it exten ded into t h e lake was go i ng to be perpe ndicu lar to Big Oak Drive , didn' t you ?
"A. Y es. "Q. T hat d idn't conc ern y ou th at da y?
"A. I saw it i n a d iffer ent d irect ion. "Q. Okay. Are you claim ing that a n y t hing was said in open court in the prese nce of Judge Reyno lds about eigh ty-th ree f eet?
"A. That was the basis on all [sic] judgm ent on our agree ment.

1711303 78

"Q. But there was no way for us to know that or for the C ourt to kn ow th at.
"A. Wel l , you menti oned seven feet. There was a seven foot diffe rence . We agree d to g ive them seven more feet. Then you a d d ed the one foot diver sion. "Q. All r ight.
"A. At th e ver y end
. "Q. I don't recal l menti oning seven feet. I recal l menti oning exact ly what is in the order that it w as going to be from the bound ary line up here on Big Oak Drive t o t h e delta point

. Isn't that right ?
"A. That' s cor rect. "
The last witne ss in the heari ng was Jean Gray. Gray
testi fied that she under stood the line d e s c r ibed in the
settl ement agree ment to be the line the parti es had agree d to

on May 30, 2012, for divid ing the parce l into two segme nts and
that the agree ment was refle cted in the order execu ted by the
trial court on June 12, 2012. On cross -exam inati on, Gray was
asked wheth er she knew what B a i n and Johns ton "thou ght or belie ved on May 30" that they were agree ing to, and Gray
admit ted s he di d not know thei r tho ughts
.

1811303 78

On Septe mber 26, 2 0 1 2 , t he trial court enter ed an order grant ing Bain and Johns ton's Rule 60(b) motio n; that o rder
state d, in pert inent part :

"Test i m ony being taken on the recor d on the issue of mista ke as to the locat ion of c e r t a in point s along the water front and locat ions withi n a certa in pl at ma p.
"Orde r of June 12, 2012, is set aside as [Bain and Johns ton] havin g made mista kes in their under stand ing o f cer tain locat ions of po ints.
"Case is reset for Febru ary 26, and Febru ary 27, 2013, at 9 :00 a .m. f or bo th da ys of tria l."
On Octob er 8, 2012, Gray fi l e d a "Moti on for
Reco n s i d e ratio n" of the trial court 's Septe mber 26, 2012,
order . In the motio n, Gr ay ar gued, amon g oth er po ints, that
the trial court had erred based on the testi mony prese nted in
the Septe mber 26, 2012, heari ng and that the rulin g impro perly
under mined the parti es' confi rmati on of their under stand ing of
the settl ement d u ring the May 30, 2012, heari ng. Gray

recou nted that the reaso n th e p a r ties agree d on the delta point as the refer e n c e point for divid ing the parce l at the
shore line was becau se "it was impra ctica l, if not impos sible , to make an e xact deter minat ion" of the foota ge of shore line
that wo u l d be recei ved by each party "due to the meand ering

1911303 78

natur e of the shore line. " Gray noted that the delta point had

n o t moved and that it was easil y locat ed by Speak s fo r t h e

surve ys he perf ormed . Gr ay ar gued that Bain and J ohnst on
"hear d that the terms of the settl ement t o which they a g r eed manda ted that the locat ion of the bound ary line as it enter ed Lake Marti n wou l d be deter m i ned solel y by refer ence to the Delta Point and with no c onsid erati on being given to shore line foota ge. If Bain and Johns ton wante d to confi rm the actua l sho relin e foota ge invol ved with the commo n bound ary li n e a s manda ted by refer ence to an unamb iguou s Delta Point , they shoul d have advi sed the Court that they were not prepa red to accep t the terms of th e s ettle ment at that time. Obvio usly t hey did not do so. Based upon the test i m o n y prese nted by [Bain and Johns to n ] at the Septe mb e r 26, 2012, heari ng, we now know that Bain and Johns ton simpl y attem pted to appro ximat e the locat ion of the propo sed bound ary line based solel y upon infor matio n which was not disc u s s e d in open court and w h i c h was not part of the settl ement agree ment or the Court 's June 12, 2012, order
. Gray would respe ctful ly sugge st that a 'mist ake' about a fact which was not discu ssed in open court and which was not part of the agree ment to wh i c h the parti es asse n t e d i n open court is not the type of mista ke for w hich Rule 60(b) reli ef is avai lable ."
Bain and J ohnst on di d not file a re spons e to Gray' s mot ion.
On Octob er 9, 2012, the trial court denie d Gray' s "Moti on
for Recon sider ation ." On Octob er 31, 2012, Gray appea led the
trial court 's dispo sitio n of Bain and Johns ton's Rule 60(b)
motio n to this Court
. We trans ferre d the appea l to the Court
of Civil Appea ls. On May 22, 2013, the Court of Civil Appea ls

2011303 78

dismi ssed Gray' s appea l as b e i ng from a nonfi nal judgm ent. 3 Gray v. Bain (No. 21204 06, May 22, 2013) , ___ So. 3d ___ (Ala.
Civ. App. 2013) (tab le).

A t r ial on the merit s was condu cted on Septe mber 19 an d 20, 2013. Follo wing trial and the submi ssion of argum ents by
both sides , the tria l cou rt en tered an o rder on No vembe r 19,
2013. In that order , the trial court concl uded that the origi nal plat was ambig uous as to the owner ship of the parce l

a n d that Bain and Johns ton "have a chain of title for o v e r
t h irty years , color of title , posse ssion , tax payme nt and
deeds with gener alize d descr iptio ns and testi mony that
factu ally place s title in them. " Accor dingl y, the trial court
concl uded that fee-s imple title to the parce l was to be veste d

T his Court has held that "[a]n order grant ing a mo t i o n 3 seeki ng relie f from a judgm ent under Rule 60(b) , Ala. R. Civ. P., is gener ally consi dered a n inter locut ory order becau se furth er proce eding s are conte mplat ed by the trial court ; there f o r e, such an order is not appea lable ." Ex parte Overt on, 985 So. 2d 423, 424 (Ala. 2007)

. This Court also has state d that "'[a] petit ion for the writ of manda mus is a prope r metho d for attac kin g t h e grant of a Rule 60(b) motio n.'" Ex parte Walla ce, Jorda n, Ratli ff & Brand t, L.L.C ., 29 So. 3d 175, 177 (Ala. 2009) (quot ing Ex parte A&B Trans p., Inc., 8 So. 3d 924, 931 (Ala. 2007) ). Gray did not file a petit ion f o r a writ of manda mus, and the Court of Civil Appea ls appar ently chose not to treat her appea l as such a petit ion; it th erefo re di smiss ed Gr ay's appea l as being from a non final judg ment.
2111303 78

in Bain and Johns ton. The trial court also concl uded that

" t h e o r igina l inten t of the devel opers was to attac h th e dispu te d r e a l estat e to the lot owner s so as to give the
posse ssor of the e n d o f t he sloug h the use of both side[ s], given the dispu ted a rea h ad no deve lopme nt/us able value ."
On Decem ber 19, 2013, Gray appea led to the Court of Civil Appea ls th e tri al co urt's Sept ember 26, 2012, orde r gra nting

B ain and Johns ton's Rule 60(b) motio n and the trial court 's
Novem ber 19, 2013, order award ing title to the parce l to Bain
and Johns ton. O n D e cembe r 27, 2013, the Court of Civil Appea ls trans ferre d Gray' s appea l to this Court due to a lack
of su bject -matt er ju risdi ction in t hat c ourt.
II. Stand ard o f Rev iew
This Court has held that the decis ion wheth er to grant or deny a motio n made pursu ant to Rule 60(b) is "with in the sound
discr etion of t he tr ial j udge, and the a ppell ate s tanda rd of
revie w is wheth er the trial c o urt abuse d its discr etion ." Ex pa rte D owlin g, 47 7 So. 2d 4 00, 4 02 (A la. 1 985).

2211303 78
III. Anal ysis

We begin by exami ning the trial court 's S eptem ber 26, 2012, order grant ing Bain and Johns ton's Rule 60(b) m o tion
b e c a use a rulin g in Gray' s favor as to that order woul d requi re reins tatem ent of the settl ement agree m e n t and

neces saril y moot exami natio n of the trial court 's Novem ber 19,
2013 , o r d e r o n the merit s of owner ship of the parce l. Gray
makes sever al argum ents regar ding the order grant ing Bain and
Johns ton's Rule 60(b) motio n, but the one we focus on is Gray' s ass ertio n tha t "[a]n y fair readi ng of the recor d, when putti ng thing s i n t h e light most favor able to Bain and Johns ton, would simpl y indic ate that becau s e Bain and Johns ton attem pte d to appro ximat e the locat ion of the negoti ated commo n bound ary line by means not aut horiz ed under the terms of the settl ement , they thoug ht that the commo n bound ary li n e would be locat ed a few feet furth er north th a n actua lly was the c ase." Gray conte nds that Bain and Johns ton's "mist ake" was actua lly

a free and delib erate choic e they made for which Rule 60(b) is

not inten ded to p r o v i d e them relie f. See, e.g., Ex parte
Meali ng, [Ms. 21209 73, Oct. 25, 2013 ]

_ _ _ So. 3d ___,

___ (Ala. Civ. App. 2013) (st a t ing that "Rule 60(b) is not desig ned to relie ve a party from the delib erate choic es he or

2311303 78

she has made" ); Murph y v. Golde n Poult ry Co., 634 So. 2d 1027,
1029 (Ala. Civ. App. 1994) (noti ng that "[i]t is not the
inten t of Rule 60(b) to relie ve a party from the free,
calcu lated , and deli berat e cho ices he/sh e has made ").
Bain and Johns ton answe r this argum ent by conte nding that they demon strat ed throu gh testi mony at the Septe mber 26, 2012,
heari ng that at the time they assen ted t o t h e settl ement
agree ment they simpl y made a mista ke as to where the bound ary line divid ing the parce l betwe en the parti es would be locat ed
and that they never would have agree d to the bound ary line
descr ibed in the settl ement agree ment had they under stood its

actua l loc ation at t hat t ime. Bain and Johns ton a ssert that they estab lishe d the exist ence of a mista ke that entit led them
to re lief under Rule 60(b ).
Even if Bain and Johns ton made an h onest mista ke, the
evide nce and argum ents are unequ ivoca l that they alone made
the mista ke. Bain repe a tedly testi fied that the mista ke at
issue was his mista ke. Johns ton testi fied that she s h a r ed
Bain' s under st andin g of the bound ary line. There is no
sugge stion that Gray did not under stand where the bou n dary
line would be locat ed at the time the parti e s r e ached the

2411303 78

settl ement , and , in fact, her undis puted test imony conf irmed
that she under stood the terms of the agree ment. Thus, the
undis puted evide nce is t h at the mista ke at issue was a unila teral mist ake o n the part of B ain a nd Jo hnsto n.
The trial court appea rs to have incor rectl y assum ed -- as
do Bain and Johns ton -- that any mista ke as to a mater ial fact
of the settl ement agree ment justi f i e d its resci ssion

. "Rule 60(b) (1)[, Fed. R. Civ. P.,] autho rizes the cou r t to give relie f from a j u d g m e n t, order , or proce eding for
'mist ake, inadv erten ce, surpr ise, or excus able negle ct,'" but "judg ments enter ed as a resul t of settl ement s may be reope ned [only ] when fraud or mutua l mista ke is shown ." 11 Charl es
Alan Wrigh t, Arthu r K
. Mille r & Mary Kay Kane, Feder al
Pract ice & Proce dur e § 2858 (2012 ). The reaso n for this is 4 that, altho ugh a mutua l mista ke of fact will permi t a court to
refor m or resci nd a bindi ng settl ement agree ment, a unila teral
mista ke does not justi fy such relie f. "Unil atera l mista kes do

"Beca use the Federal Rules of Civil Proce dure were used 4 as a model for Ala b a ma's proce dural rules , these 'fede ral decis ions are highl y persu asive w h e n we are calle d upon to const rue the Alaba ma Rules .'" Ex parte Full Circl e Distr ib., L.L.C ., 883 So. 2d 638, 643 (Ala. 2003) (quot ing City of Birmi ngham v. City of Fairf ield, 396 So. 2d 692, 696 (Ala. 1981) ).
2511303 78

not suppo rt refor matio n (ab s e nt some fraud or misre prese ntati on). Moreo ver, on e party is not custo maril y charg ed to know what is on th e o t her party 's mind, so as to

conco ct some const ructi ve mutua l mista ke where there is but a unila teral m i s t ake." 27 Richa rd A. Lord, Willi ston on
Contr acts § 70:10 9 (4th ed. 2003 )
. "As a gener al rule,
resci ssion is unava ilabl e where a unila teral m istak e is
unkno wn to the other part y (ev en th ough that mista ke re lates
to a basic assum ption of a contr act and has a mater ial effec t

on the agree d excha nge of p e r forma nces) ." Willi ston at § 70: 111. This Court has expla ined:

"We have often h a d occas ion to point out the groun ds on which a c o u r t of equit y will assum e juris dicti on to refor m writt en instr ument s. 'Firs t, where there i s a mutua l mista ke, that is, where there has been a meeti ng of minds , a n agree ment actua lly enter ed into, b u t the contr act, deed, settl ement , or other instr ument , i n its writt en form, does not expre ss wha t was reall y inten ded by t h e parti es there to; and, secon d, where there has been a mista ke of one party , accom panie d by fraud or other inequ itabl e condu ct of the remai ning parti es;' and also where there has been a mistake on the part of the scriv ener. Of cours e the mista ke must be unmix ed with neg l i g ence on the part of the party seeki ng re lief. "
Balle ntine v. Bradl ey, 236 Ala. 326, 328, 182 So. 399, 400-0 1 ( 1 938). There was no alleg ation that Bain and Johns t o n ' s

2611303 78

mista ke was accom panie d by fraud or other inequ itabl e condu ct
on Gr ay's part. See also Hack ney v . Fir st Al abama Bank , 555
So. 2d 97, 101 (Ala. 1989) (citi ng the Resta temen t (Seco nd) of
Contr acts §§ 153 and 154 ( 1 9 7 9), and holdi ng that, unlik e a
mutua l mista ke of fact, a unila teral mista ke will not serve as

a basis for avoid ing the contr act unles s the effec t of the

m i s take is such that enfor cemen t of the contr act would b e

uncon scion able or the nonmi stake n party had reaso n to know of
the m istak e or his o r her faul t cau sed i t). Meyer v. M eyer, 952 So. 2d 384, 391-9 2 (Ala. Civ. App. 2006) (decl ining to
autho rize refor matio n or r e sciss ion of a contr act as the
resul t of a mista ke that the court concl uded was not a "mutu al
mista ke" and relyi ng on § 8-1- 2 , Ala. Code 1975, which provi des a s fol lows: "Wh en, t hroug h fra ud, a mutu al mi stake
of the parti es or a mista ke of one party w h i ch the other at
the time knew or suspe cted, a writt en contr act does not truly
expre ss th e int entio n of the p artie s, it may be re vised by a
court on the appli catio n of the party aggri eved so as to
expre ss that inten tion, so far as it can be done witho ut preju dice to the right s acqui red by third perso ns i n g ood
faith and for v alue. ").

2711303 78

Feder al autho ritie s also concu r that only a mutua l
mista ke, and not a unila teral one, permi ts a court to resci nd

or re form a bin ding settl ement agre ement
.

"In the insta nt case, ... the distr ict court erron eousl y concl uded that since a mutua l mista ke of mater ial fact would suffi ce to warra nt r e forma tion of a settl ement agree ment, a unila teral mista ke also const itute d permi ssibl e reaso n to do so. Exist ing prece dent, howev er, dicta tes that only the exist ence of fraud or mutual mista ke can justi fy reope ning an other wise valid settl ement agr e e m e nt. 'One who attac ks a settl ement must bear the burde n of showi ng t h a t the contr act he had made is taint ed w i t h inval idity , eithe r by fraud pract iced upon him or by a mutua l mi s t ake under which both parti es acted .' Calle n v. Penns ylvan ia R.R. Co., 332 U.S. 625, 630, 68 S.Ct. 296, 298, 92 L.Ed. 242 ( 1 9 48) (emph asis added ); Asber ry v. Unite d State s Posta l Serv. , 692 F.2d 1378, 1380 (Fed . Cir . 198 2) (s ame).

" ' I f a mista ke was made in the prese nt case, it was made by the defen dant alone
. Unlik e a mutua l mista ke, a unila teral mista ke is not suffi cient to allow t h e mista ken party to limit or avoid the effec t of an other wise valid settl ement agree ment. Kline v. Flori da Airli n e s , Inc., 496 F.2d 919, 920 (5th Cir. 1974) ; Unite d State s v. Bisse tt-Be rman Corp. , 481 F.2d 764, 768 (9th Cir. 1973) ; Virgi nia Impre ssion Prod. Co. v. SCM Corp. , 44 8 F .2d 262, 265 (4th Cir. 1971) [, cert. denie d, 405 U.S. 936, 92 S.Ct. 945, 30 L .Ed.2 d 811 (197 1)].'
"Che y enne- Arapa ho Tribe s of India ns of Oklah oma v. Unite d State s, 671 F.2d 1305, 1311, 229 Ct. Cl. 434 (1982 ); accor d Mid-S outh Towin g Co. v. H a r -Win, Inc., 733 F.2d 386, 392 (5th Cir. 1 9 8 4 ) ('In this case, OKC's alleg ed ignor ance ... is, at m o st, a

2811303 78

unila teral m i stake
. There is no claim that eithe r Mid-S outh or Ameri can Emplo yers' conce aled these other surve ys or misre prese nted their conte nts, nor that there was any overr eachi ng.') ; Swift Chem. Co. v. Usame x Ferti lizer s, Inc., 490 F. Supp. 1343, 1356 (E.D. La. 1980) ('Wha tever the truth is, a t best only one of t h e parti es could have been mista ken ab o u t t he issue

. A unila teral mista ke about a parti cular fact is insuf ficie nt to refor m a contr act other wise prope rly enter ed into. '), aff'd , 646 F.2d 1121 (5th Cir. 1981) ; Alban o Clean ers, Inc. [v. U n i ted State s], 455 F.2d 556, 560 (Ct. Cl. 1972) ; see also Bowat er No. Am. Corp. [v. M u r r ay Mach. , Inc.] , 773 F.2d [71] a t 75 [(6th Cir. 1985) ] ('The adequ acy of the contr act forma tion [of a settl ement ag reeme nt] is furth er suppo rted by the [fact that]

... there was no mutua l mista ke, n o r w a s there mista ke due to fraud which only on e o f the parti es would have known about.') (emph asis added ). In the case at bar, ther e was no mutua l mista ke or fraud ulent misr epres entat ion."

Brown v. Count y of Genes ee, 872 F.2d 169, 174-7 5 (6th Cir. 1989)

. See also Allen v. WestP oint- Peppe rell, Inc., 945 F.2d 40, 46 (2d Cir. 1991) (stat ing that "the nec e ssary eleme nts
for resci ssion based on mutua l mista ke [are] : both parti es to
the relea se share d the same erron eous belie f as to a mater ial fact, and their acts did not i n fac t acc ompli sh th eir m utual
inten t").
The "exce ption to t h e g enera l princ iple denyi ng relie f
for u nilat eral mista ke [i s] wh en th e non mista ken p arty knows

or has reaso n to know of th e unila teral mista ke."

2911303 78

28 W i l l i s t o n on Contr acts § 70:22 9. Such was not the case
here. Gray testi fied witho ut dispu te that she had no idea
that Bain and Johns ton had a diffe rent belie f than she did as
to locat ion of the bound ary line divid ing the parce l when the parti es ag reed to th e set tleme nt.

In fact, as Gray obser ved in her " M otion for
Recon sider ation ," the situa tion prese nted in this case
refle cts one in which the parti es who made the mista ke simpl y
made a n assum ption witho ut gathe ring enoug h infor matio n to
conf i r m that assum ption befor e assen ting to the settl ement
agree ment. In a simil ar scena rio, the Unite d State s Court of Appea ls fo r the Fift h Cir cuit expla ined: "[E]v en if we accep t the conte ntion that Davis gave his conse nt to the relea se based on a mista ke of fact conce rning the role of vario us compa nies in the a l l e ged wrong doing , Davis and his lawye rs had an oblig ation to deter mine the facts throu gh disco very befor e enter ing into a broad relea se of all claim s. A party to a settl ement who 'has the means in hand of ascer taini ng the facts , but negle cts to [use those means ] canno t ther e after have the settl ement set a s i de becau se of mista ke.' Talbo t v. Dougl as Movin g & Wareh ouse Co., 228 So. 2d 222, 224 (La. Ct. App. 1969) , cert. denie d, 255 La. 247, 230 So. 2d 94 (1970 )."
Davis v. Huski power O utdoo r Equip

. Corp. , 936 F.2d 193, 198 (5th Cir. 1991)

.

3011303 78

Bain and Johns ton asser t tha t "[b]e fore agree ing to the
settl ement , and witho ut a map from which to visua lize start ing point s, Mr . Bai n did ever ythin g he could to v erify the place
where the new bound ary line on Parce l 57 would be in the short
space of time avail able to him

. " B u t t he "rush " to confi rm

measu remen ts was self- impos e d. There is no reaso n, and Bain
and J ohnst on of fer n one, why t hey c ould not h ave d eclin ed to
agree to the propo sed se t tleme nt until they felt sure about
the locat ion of the bound ary line -- if indee d they were

unsur e about its locat ion. For that matte r, there is no

reaso n the sett lemen t cou ld no t hav e bee n mad e con tinge nt on
the parti es' agree ment with the secon d Speak s surve y
estab lishi ng the bound ary line divid ing the parce l. Bain and
Johns ton emplo yed neith er cours e of actio n. Inste ad, they
volun taril y proce eded to ente r into a bindi ng settl ement
agree ment that they affir med in open court , that was

memor ializ ed in a c o u rt order , and that becam e a final judgm ent. The curre nt ap peal arise s fro m the ir re quest that
the trial court undo this agree ment and t h e final judgm ent
resul ting there from and provi de them inste ad with a full trial

on the merit s of the dispu te in quest ion. In short , Bain and

3111303 78

Johns ton reque sted, and the trial cou rt grant ed, Rule 60(b)
relie f bas ed on thei r own unil atera l mis take made withi n the
conte xt of a free and delib erate choic e to settl e a matte r
that had b een p endin g for 13 y ears betwe en th e par ties. 5

Bain and Johns ton conten d that the case of Fabar c Steel 5 Suppl y, In c. v. Davi s, 42 2 So. 2d 7 97 (A la. C iv. A pp. 1 982), suppo rts t he tr ial c ourt' s dec ision to g rant them Rule 60(b) relie f. In Fabar c, a trial court set aside a worke r's compe nsati on co nsent judg ment under Rule 60(b ). I ronic ally, in their summa ry of the facts in Fabar c, Bain and Johns ton note the very fact that disti ngui s h e s that case from their situa tion:
"The claim ant had injur ed his finge rs on th e job, but while he was being treat ed for his injuries, an injec tion into his shoul der alleg edl y injur ed his shoul der to the point that he was total ly disab led. The treat in g physi cian told the worke r and his emplo ye r t h a t the shoul der was the resul t of bursi tis. B ecaus e of this, the worke r went ahead and s ettle d his case for appro ximat ely $ 1500.
"Afte r the worke r learn ed that the probl ems with hi s s h oulde r were work relat ed, he moved to set aside the settl ement , which the trial court grant ed o n the groun ds of mutua l mista ke as to the tru e exten t of Mr. D avis' inju ries. "
The Court of Civil Appea ls in F a b a r c affir med the trial court 's judgm ent, likew ise notin g the exist ence of a mutua l mista ke:
"In the insta nt case, plain tiff had been told by Dr. Veach that his shoul der pain was the r e s u lt of bursi tis. After conta cting an attor ney, he was advis ed that the injur y to his f i n g ers would be fairl y compe nsate d by the settl ement agree ment. Altho ugh plain tiff was total ly disab led by the pain
3211303 78

"'The l aw favor s the amica ble settl ement of
contr overs ies, and it is the duty of court s rath e r t o

e ncour age than to disco urage parti es in resor ting to
compr omise as a mode of adjus ting confl ictin g claim s.'" Tatum

v. Cater , 270 Ala. 4 4 5 , 4 48, 119 So. 2d 223, 225 (1960 ) (quot ing 11 Am. Jur. Compr omise and Settl ement § 4). In this

case , the parti es appar ently had been attem pting to settl e their disp ute o ver t he ow nersh ip of the parce l for 13 y ears.
When the p artie s fin ally settl ed, t hey a ffirm ed th eir a ssent
to the terms of the settl ement in op e n court follo wing speci fic a nd re peate d inq uirie s fro m the tria l cou rt.
Based on the foreg oing, we concl ude that the trial court
erred in g ranti ng Ba in an d Joh nston 's Ru le 60 (b) m otion that
set aside the bindi ng settl ement agree ment bet w e e n the parti es. We th erefo re re verse the Septe mber 26, 2 012, order

in his shoul der and arm, every one else invol ved appar ently relie d on Dr. Veach 's opini on that such pain was not relat ed to plain tiff' s injur y t o his finge rs. In consi derin g the 60(b) motio n, the court could have deter mined that plain tiff, unedu cated and not quali fied to relat e the s h oulde r pain to the on-th e-job injur y, accep ted the settl ement in relia nce on repre senta tions that the settl ement amoun t was all the money to which he was entit led."
Fabar c, 42 2 So. 2d a t 799 (emp hasis adde d).
3311303 78

grant ing B ain a nd Jo hnsto n's R ule 6 0(b) motio n. A s we noted
at the outse t of our analy sis, th i s resul t also neces saril y

means that the trial court shoul d not have enter taine d a trial

on t h e merit s. Accor dingl y, the trial court 's Novem ber 19, 2013, order resul ting from that trial and award ing the parce l
to Ba in an d Joh nston is d ue to be s et as ide. On r emand , the
tria l c ourt is instr ucted to vacat e its Novem ber 19, 2013,
order and to re insta te it s Jun e 12, 2012 , jud gment appr oving the p artie s' se ttlem ent a greem ent.

REVER SED A ND RE MANDE D WIT H INS TRUCT IONS.
Main and B ryan, JJ., conc ur.
Moore , C.J ., an d Bol in, J ., co ncur in th e res ult.

34