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.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

____________________

1130378

____________________

Jean S. Gray

v.

Larry O. Bain and Sharon Johnston

Appeal from Elmore Circuit Court

(CV-99-0238)

MURDOCK, Justice.

Jean S. Gray appeals from two orders of the Elmore

Circuit Court in an action filed against Larry O. Bain and

Sharon Johnston in which Gray sought a judgment declaring that

she owned a parcel of land (hereinafter "the parcel") and an
1130378

injunction preventing Bain and Johnston from asserting any

rights to the parcel. We conclude that the trial court erred

in granting a Rule 60(b), Ala. R. Civ. P., motion filed by

Bain and Johnston that set aside a settlement of the action.

I. Facts and Procedural History

This action has been appealed twice before. In Bain v.

Gray, 835 So. 2d 1034 (Ala. Civ. App. 2002) ("Bain I"), the

Court of Civil Appeals summarized the pertinent underlying

facts of the dispute between the parties.

"The .05-acre parcel in dispute is located in

the Kowaliga Bay Estates subdivision in Elmore

County. The record indicates that the parcel is a

rocky, narrow strip of land that slopes steeply down

on its west side into a slough on Lake Martin. The

parcel is bordered to the east by Big Oak Drive, to

the north by Cove Drive, and to the south by Poplar

Drive.

"The record contains a copy of the original

subdivision plat filed in September 1953. The

subdivision plat divides the property composing the

subdivision into units, then into blocks, and then

into lots. From our review of the record, it

appears that all of the smallest divisions of the

property in the subdivision plat are designated by

lot numbers, with the exception of the disputed

parcel. However, on the subdivision plat, three

lines are drawn across the parcel. The record

indicates that those lines, if continued across Big

Oak Drive, match the lines dividing Lots 2, 3, and

4, of Block No. 5, Unit No. 2, of the Kowaliga Bay

Estates subdivision.

2
1130378

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

Unit No. 2, of the Kowaliga Bay Estates subdivision,

the lots directly across Big Oak Drive from the

parcel. [Bain and Johnston] own Lot 13 and Lot 14

of Block 8, Unit 2, of the Kowaliga Bay Estates

subdivision. One of [Bain and Johnston's] lots is

directly across the slough from the parcel. The

parties' deeds describe their respective properties

by lot, block, and unit numbers; all of the deeds

preceding those deeds date back to the time the

subdivision plat was recorded, and describe the

properties by lot, block, and unit numbers. None of

the deeds to the parties' properties contain a

metes-and-bounds description, and none of the deeds

reference or describe the parcel."

835 So. 2d at 1035-36.

On June 9, 1999, Gray and her husband Burl A. Gray filed

this action asking seeking declaratory and injunctive relief

concerning ownership of the parcel. Bain and Johnston 1

answered and filed a counterclaim also seeking declaratory and

injunctive relief concerning ownership of the parcel.

"On September 28, 2000, [Bain and Johnston]

filed a motion for a summary judgment. On

December 22, 2000, Jean Gray filed a motion for a

summary judgment and a brief in support of that

motion. The trial court held a hearing on both

parties' summary-judgment motions. On May 4, 2001,

the trial court denied the parties' summary-judgment

motions and issued an order dividing the parcel

between the parties. [Bain and Johnston] filed a

motion to alter, amend, or vacate the trial court's

Burl Gray died on August 27, 1999. Jean Gray moved to 1

have him dismissed as a party, and the trial court granted

that motion. 

3
1130378

May 4, 2001, order; that motion was denied by

operation of law. [Bain and Johnston] appealed to

the Supreme Court of Alabama; Gray cross-appealed.

The Supreme Court of Alabama transferred the appeals

to [the Court of Civil Appeals] pursuant to

§ 12-2-7(6), Ala. Code 1975."

835 So. 2d at 1035. 

In Bain I, the Court of Civil Appeals explained that the

trial court had divided the parcel between the parties after

concluding that the original intent of the subdivision

developers was ambiguous. The Court of Civil Appeals

concluded that the trial court had erred in dividing the

parcel at the summary-judgment stage, because, it held, "if

the trial court determines that the deed is ambiguous, the

intent of the grantor becomes a factual issue," and "[w]hen a

genuine issue of material fact exists regarding the intent of

the grantor in the deed, a summary judgment is not

appropriate." 835 So. 2d at 1038. The Court of Civil Appeals

also noted that "the trial court erred in dividing the parcel

in a manner inconsistent with the parties' assertions and

unsupported by the evidence presented by the parties at the

hearing on the parties' summary-judgment motions." Id.

Accordingly, the Court of Civil Appeals reversed the trial

4
1130378

court's judgment and remanded the cause for further

proceedings.

For reasons not fully explained by the parties, nothing

further occurred in this action for several years. On August

2

19, 2011, following the retirement of presiding Judge John

Rochester, this case was assigned to Judge Sibley Reynolds.

Following several continuances, the trial court set the case

for a May 30, 2012, trial date. 

On May 30, 2012, with all parties present, a settlement

agreement was reached during a recess in the proceedings. The

terms of the settlement were read into the record by Gray's

attorney. As the terms were read, the parties and their

attorneys interjected to seek clarification on certain points. 

One such interjection was made by Bain and Johnston's counsel,

who stated:

"MR. HAYNES: Judge, on the very first paragraph.

Bob, you said this earlier but did not recite it

then. I believe it's an oversight or I didn't hear

it. We believe that the waterfront that Ms. Gray

would get would be more or less approximately

eighty-seven feet, but that specific number is not

controlling. It is the points that he referred to

going through the delta points.

The parties do indicate that attempts to settle the

2

dispute were made during this period.

5
1130378

"THE COURT: That will be established by the Speaks

survey.

"MR. HAYNES: Correct.

"MR. RENEAU [Gray's counsel]: He's right. That's

in my notes and I neglected to say it."

(Emphasis added.) After several such exchanges between the

parties, their attorneys, and the trial court, the trial court

asked Bain and Johnston's attorney:

"Do we have an agreement?

MR. HAYNES: Yes, sir.

"THE COURT: Ms. Gray, is that your understanding of

the agreement?

"MS. GRAY: I wish you could see the pictures of

what is built over there.

"THE COURT: Ms. Gray, if I start taking testimony,

I'm not going to look. Is that your understanding

of the agreement?

"MS. GRAY: Yes.

"THE COURT: Is that your agreement?

"MS, GRAY: Yes.

"THE COURT: Mr. Bain, is that your understanding of

the agreement?

"MR. BAIN: Yes, sir.

"THE COURT: Is that your agreement?

6
1130378

MR. BAIN: The only problem I have is when we agreed

in the back room to what their first offer was about

the property lines going across from three and going

down to, what was that point, delta point four, we

agreed to that. We didn't really agree to come over

a foot and out a foot and do that. We agreed to

what they offered. You know, we have been trying to

settle this for a long, long time, thirteen years.

You know, just to have to change it after we walk

out here, we're not really happy.

"THE COURT: Mr. Bain, we're five minutes from that.

That's what I was asking. Is that your

understanding of the agreement?

"MR. BAIN: Yes, sir.

"THE COURT: Is that your agreement? 

"MR. BAIN: Yes, sir.

"THE COURT: Ms. Johnston, is that your

understanding of the agreement?

"MS. JOHNSTON: Yes, sir.

"THE COURT: Is that your agreement?

"MS. JOHNSTON: Uh-huh (positive response).

"THE COURT: Thank you, I will enter that order just

as soon as it's presented. ..."

On June 12, 2012, the trial court entered an order based

on the terms of the settlement. In pertinent part, the order

provided:

"1. The parties will divide absolute ownership of

the disputed property with the Plaintiff, Jean S.

Gray (hereinafter referred to as 'Gray') receiving

7
1130378

the northern portion of the disputed property (which

has been labeled as Parcel 57 by the Elmore County

Revenue Commissioner's Office) and the Defendants,

Larry O. Bain and Sharon Johnston (hereinafter

referred to as 'Bain and Johnston') receiving the

southern portion of same. [Bain and Johnston's]

surveyor, Stephen Speaks, shall at [Bain and

Johnston's] expense, prepare a boundary survey of

the parcels to be received by the respective

parties. Said survey shall be in accordance with a

survey previously prepared by Speaks with the

addition of the boundary line which will now divide

the property into the two parcels to be received by

the respective parties. The common boundary line

shall begin on the west side of Big Oak Drive at the

point which would represent the boundary line

between Lot 3 and Lot 4, Block 5, Unit 2 of Kowaliga

Bay Estates. Beginning at said point, the boundary

line shall proceed to a point which is one foot from

the point designated as the Delta Point between L-4

and L-5 on the previous Speaks survey. Said point

shall be determined in a manner which will cause the

remainder of the boundary line which intersects said

Delta Point to be perpendicular to Big Oak Drive.

The express purpose of the above is to cause the

property line to enter Lake Martin at an angle

perpendicular to Big Oak Drive. 

"2. Upon completion of the new Speaks survey set

forth in the proceeding paragraph, the parties shall

exchange Quitclaim Deeds wherein each party

relinquishes any and all claim of interest in the

property to be received by the opposing party. Each

party, at its own expense, shall record their Quitclaim Deed in the Office of the Judge of Probate of

Elmore County, Alabama, within seven days of the

receipt of same, and immediately thereafter shall

deliver a recorded copy of said Quitclaim Deed to

the Elmore Revenue Commissioner's Office so that the

property may be appropriately assessed for

ad valorem tax purposes in the future. 

8
1130378

"3. The Court hereby orders the Elmore Revenue

Commissioner's Office to terminate, beginning with

the next ad valorem tax year, its assessment of the

disputed property as Parcel 57 (which the parties

currently have double assessed), and immediately

thereafter to begin assessing the property to the

respective parties in accordance with the

descriptions set for in said Quitclaim Deeds

referenced above.

"4. Bain and Johnston will not oppose, publicly or

privately, any attempt by Gray to vacate Cove Drive

west of its intersection with Big Oak Drive (the

same lying between Lots 1 and 2, Block 5, Unit 2 of

Kowaliga Bay Estates).

"5. Bain and Johnston will not oppose Gray's efforts

to obtain the appropriate license or permit from

Alabama Power Company to build a dock or a pier,

including a ramp or stairway to said dock/pier

abutting the property described in her Quitclaim

Deed, nor will they oppose the construction of same.

Likewise, Gray will not oppose the

licensing/permitting or construction of a pier/dock

by Bain and Johnston abutting the property described

in their Quitclaim Deed. Any pier/dock to be

constructed by either party must be done in

accordance with the applicable regulations of

Alabama Power Company.

"6. Bain and Johnston shall have the right, but not

the obligation, to maintain the seawall which they

previously built on property described in Gray's

Quitclaim Deed. Bain and Johnston, however, shall

not have the right to change or increase the height

of said seawall without first obtaining written

permission from Gray to do so.

"7. Neither party may construct any structure or

improvements on the property described in their

respective Quitclaim Deeds, other than as set forth

9
1130378

above, without first obtaining the written consent

of the other party. 

"8. Neither party shall in any way intentionally

harass or annoy the other party or create a nuisance

on the property described in their respective Quitclaim Deeds.

"9. The terms of this Order shall be appurtenant to

and shall run with the land so as to be binding on

the successors, assignees or heirs of the respective

parties.

"10. A separate Order to Revenue Commissioner will

be signed by the Court concurrently herewith. Said

order to Revenue Commissioner shall be delivered to

the Revenue Commissioner's Office and further, a

copy of same shall be recorded in the records

maintained in the Elmore Probate Office so as to

provide appropriate notice of the terms of same."

(Emphasis added.) As the settlement agreement provided, the

trial court also executed on June 12, 2012, an order directed

to the Elmore Revenue Commissioner's office, ordering that

office to begin assessing the parcel in accordance with the

quitclaim deeds it would receive describing the two segments

of the parcel.

According to Bain and Johnston, after the survey work

began on the parcel, it became clear to them that the boundary

line described in the settlement agreement was not the

boundary line they thought they were agreeing to. Bain and

Johnston "believed that the boundary line between Lots 4 and

10
1130378

5 started at the end of the seawall they built on the Big Oak

side of the slough. Instead, the point was closer to the

creek end of the slough then they had anticipated." 

On July 24, 2012, Bain and Johnston filed a "Motion for

Relief from Judgment" pursuant to Rule 60(b), Ala. R. Civ. P.

In pertinent part, the motion asserted:

"[A] mistake was made when [Bain and Johnston]

'agreed' to a settlement prior to the commencement

of the trial. [Bain and Johnston] telephoned Jim

Bain, an employee of their business who is also the

brother of Larry Bain, and asked him to go and

determine where the property boundary line would be

if they proposed settlement were accepted.

Unfortunately, Jim Bain mistakenly 'located' the

boundary line and called back explaining where he

thought the line would be situated between [Gray]

and [Bain and Johnston]. Jim Bain's understanding

was erroneous and his description of where the line

would be was off by several feet such that [Bain and

Johnston] would never have agreed to the proposed

settlement. [Bain and Johnston's] understanding of

the settlement at the time the settlement was made,

based on what they were mistakenly informed by Jim

Bain, was simply wrong."

On July 25, 2012, Gray filed a response in opposition to

the "Motion for Relief from Judgment." In her response, Gray

noted that the settlement had occurred "[a]fter more than

three (3) hours of negotiation." Gray further observed that,

"[w]hile counsel were reading their agreement into

the record in the presence of the Court, several

disagreements arose, which ultimately were resolved

11
1130378

with input from the Court. The final agreement to

the settlement read into the record was delayed over

the lunch break at the request of [Bain and

Johnston] so that they could have an employee plot

the exact location of the boundary line to which the

parties were agreeing."

Gray argued that relief under Rule 60(b) "is an extraordinary

remedy that is not to be used for the purpose of relieving a

party from the effects of a free and voluntary consent

judgment."

On September 26, 2012, the trial court held a hearing on

Bain and Johnston's Rule 60(b) motion. The trial court took

testimony from witnesses as to whether Bain and Johnston were

mistaken as to the actual boundary line dividing the parcel

when they agreed to the settlement on May 30, 2012.

Jim Bain testified that on May 30, 2012, his brother

Larry called him while Jim was at lunch and asked him to drive

out to the parcel and to measure the distance from one point

to another. Specifically,

"[Larry Bain] explained to me that he was concerned

about where a certain distance would hit on the

shoreline. He asked me to go to his house and

across the waterway and measure from a boathouse

building back in a, I guess that would be a,

southerly direction and tell him where that distance

hit. There is a big rock and a bench that was built

out of stone that he wanted to know how far away

12
1130378

from that boathouse it was. And I give him that

information."

Jim Bain explained that the distance from the boathouse to the

"big rock" was 83 feet, or 85 feet to the center of the rock

because it is "a wide rock." He testified that he related

this information to his brother and that he also sent some

pictures using his cellular telephone. Jim Bain stated that

he simply measured the distance between two points that were

given to him by Larry Bain in that telephone conversation.

Larry Bain next testified as to what he asked his brother

Jim to measure.

"A. I asked him to go to what we thought was the

property line, which was next to their

boathouse, where we built a seawall already and

measure over eighty-three feet because those

were numbers that were being given to us, you

know, on some sort of split of the property. 

That's what he told us. The seawall --

"Q. Just answer the question. What was your

understanding as to the significance of the

eighty-three feet as you negotiated the

settlement of your case for this property?

"A. Well, that's where he told us where that big

rock was, so we felt like we could agree on

some sort of division right in there."

Bain asserted that the reason it was important for the

boundary line to be where he thought it was as opposed to what

13
1130378

was described in the settlement agreement was that the latter

boundary line would allow Gray to build a pier that could

block Bain and Johnston's access to the water for loading and

unloading equipment in their business. 

On cross-examination, Bain was asked who made the mistake

at issue, and he responded: "I'm going to have to say it was

my mistake, my total mistake because that is where I was

assuming the property line was, was next to that boathouse."

He was then asked about what he heard on the day the

settlement agreement was read into the record.

"Q. Now, when we were in court before Judge

Reynolds and we read the common boundary line

shall begin at the west side of Big Oak Drive

at a point which will represent the boundary

line between lot three and lot four of block

five unit two of Kowaliga Bay Estates, you

understood where that was, didn't you?

"A. No, sir, I didn't understand where it was

because I couldn't see it on a map. I mean,

you know, I couldn't see it -- where it was in

adjacent to the land. That is why we had

somebody go out and try to give us an idea of

where that position was.

"Q. Well, you understood where it was on the survey

we were looking at that day, didn't you?

"A. Well, I'm not a surveyor, but I could see it on

the survey. That never told me where it was on

the property --

14
1130378

"Q. All right.

"A. -- as I was looking from my house, no, sir.

"Q. But you knew that that was the starting point

of this boundary line that we were agreeing to?

"A. Yes. I believe that is what y'all were saying

was the starting line.

"Q. Then we said beginning at this point the

boundary line shall proceed to a point which is

one foot from the point designated at the delta

point between L-4 and L-5 on the previous

Speaks survey. And you heard that, didn't you?

"A. I did hear that.

"Q. And you were able to look at the Speaks survey

and see where that point was?

"A. I think you threw that out there after -- that

little angle you put on there was not on the

survey. That you changed the angle on, I don't

think that was there.

"Q. But the delta point didn't change is what I'm

saying? 

"A. That's right.

"Q. You knew where that delta point was?

"A. I could see it on the survey, yes, sir.

"Q. So you knew that it was from that point between

lot three and four on the west side of Big Oak

Drive to that delta point?

"A. I knew it was somewhere in between there, yes,

sir.

15
1130378

"Q. Then we said, said point shall be determined in

a manner which will cause the remainder of the

boundary line which intersects the delta point

to be perpendicular to Big Oak Drive. I left

out the part where I said it should be one foot

from the delta point. So you knew that day

that the line was going to be perpendicular to

Big Oak Drive extending into the lake, didn't

you?

"A. Yes, sir.

"Q. You didn't say anything to anybody that day

about, wait a minute, I told my brother to

measure eighty-three feet and it is not the

same?

"A. No, because we felt like that would have been a

fair split on the property where he told us the

eighty-three feet was. We felt like we could

live with that.

"Q. But you knew when the settlement was being read

into the Court that day that there was no

mention of eighty-three feet?

"A. Well, that was just what we were being told. It

was going to be eighty-three -- seven feet

dispute, but that is not even what that is on

that survey.

"Q. Well, Mr. Bain, listen to me. That may have

been what your lawyers told you, but that is

not what was discussed in open court with Judge

Reynolds for the agreement, was it?

"A. No, sir."

Sharon Johnston also testified as to where she believed

they were agreeing that the boundary line would be located,

16
1130378

echoing Bain's understanding. On cross-examination, Johnston

was asked if, at the time the settlement agreement was read

into the record, she understood the location of the boundary

line that was being described. She responded:

"We're trying to imagine eighty-three feet and where

it is in relation to the bench and the rock and that

sort of thing because we know that property. So

that is why we asked someone to go out there. So

no, I didn't understand to the degree that you are

saying. This was a map that was sitting by itself

with no trees, no rocks, no seawall, nothing. So we

could not visualize where this actually was going to

be. ... So without seeing this actual survey, we

could not make a rationale decision."

Gray's attorney further explored Johnston's understanding at

the time the settlement agreement was made:

"Q. ... You understood on May 30th when we were in

here and when you made the agreement that the

boundary line as it extended into the lake was

going to be perpendicular to Big Oak Drive,

didn't you?

"A. Yes.

"Q. That didn't concern you that day?

"A. I saw it in a different direction.

"Q. Okay. Are you claiming that anything was said

in open court in the presence of Judge Reynolds

about eighty-three feet? 

"A. That was the basis on all [sic] judgment on our

agreement.

17
1130378

"Q. But there was no way for us to know that or for

the Court to know that.

"A. Well, you mentioned seven feet. There was a

seven foot difference. We agreed to give them

seven more feet. Then you added the one foot

diversion.

"Q. All right.

"A. At the very end.

"Q. I don't recall mentioning seven feet. I recall

mentioning exactly what is in the order that it

was going to be from the boundary line up here

on Big Oak Drive to the delta point. Isn't

that right?

"A. That's correct."

The last witness in the hearing was Jean Gray. Gray

testified that she understood the line described in the

settlement agreement to be the line the parties had agreed to

on May 30, 2012, for dividing the parcel into two segments and

that the agreement was reflected in the order executed by the

trial court on June 12, 2012. On cross-examination, Gray was

asked whether she knew what Bain and Johnston "thought or

believed on May 30" that they were agreeing to, and Gray

admitted she did not know their thoughts.

18
1130378

On September 26, 2012, the trial court entered an order

granting Bain and Johnston's Rule 60(b) motion; that order

stated, in pertinent part:

"Testimony being taken on the record on the

issue of mistake as to the location of certain

points along the waterfront and locations within a

certain plat map. 

"Order of June 12, 2012, is set aside as [Bain

and Johnston] having made mistakes in their

understanding of certain locations of points.

"Case is reset for February 26, and February 27,

2013, at 9:00 a.m. for both days of trial."

On October 8, 2012, Gray filed a "Motion for

Reconsideration" of the trial court's September 26, 2012,

order. In the motion, Gray argued, among other points, that

the trial court had erred based on the testimony presented in

the September 26, 2012, hearing and that the ruling improperly

undermined the parties' confirmation of their understanding of

the settlement during the May 30, 2012, hearing. Gray

recounted that the reason the parties agreed on the delta

point as the reference point for dividing the parcel at the

shoreline was because "it was impractical, if not impossible,

to make an exact determination" of the footage of shoreline

that would be received by each party "due to the meandering

19
1130378

nature of the shoreline." Gray noted that the delta point had

not moved and that it was easily located by Speaks for the

surveys he performed. Gray argued that Bain and Johnston

"heard that the terms of the settlement to which

they agreed mandated that the location of the

boundary line as it entered Lake Martin would be

determined solely by reference to the Delta Point

and with no consideration being given to shoreline

footage. If Bain and Johnston wanted to confirm the

actual shoreline footage involved with the common

boundary line as mandated by reference to an

unambiguous Delta Point, they should have advised

the Court that they were not prepared to accept the

terms of the settlement at that time. Obviously

they did not do so. Based upon the testimony

presented by [Bain and Johnston] at the

September 26, 2012, hearing, we now know that Bain

and Johnston simply attempted to approximate the

location of the proposed boundary line based solely

upon information which was not discussed in open

court and which was not part of the settlement

agreement or the Court's June 12, 2012, order. Gray

would respectfully suggest that a 'mistake' about a

fact which was not discussed in open court and which

was not part of the agreement to which the parties

assented in open court is not the type of mistake

for which Rule 60(b) relief is available."

Bain and Johnston did not file a response to Gray's motion.

On October 9, 2012, the trial court denied Gray's "Motion

for Reconsideration." On October 31, 2012, Gray appealed the

trial court's disposition of Bain and Johnston's Rule 60(b)

motion to this Court. We transferred the appeal to the Court

of Civil Appeals. On May 22, 2013, the Court of Civil Appeals

20
1130378

dismissed Gray's appeal as being from a nonfinal judgment.3

Gray v. Bain (No. 2120406, May 22, 2013), ___ So. 3d ___ (Ala.

Civ. App. 2013) (table).

A trial on the merits was conducted on September 19 and

20, 2013. Following trial and the submission of arguments by

both sides, the trial court entered an order on November 19,

2013. In that order, the trial court concluded that the

original plat was ambiguous as to the ownership of the parcel

and that Bain and Johnston "have a chain of title for over

thirty years, color of title, possession, tax payment and

deeds with generalized descriptions and testimony that

factually places title in them." Accordingly, the trial court

concluded that fee-simple title to the parcel was to be vested

This Court has held that "[a]n order granting a motion

3

seeking relief from a judgment under Rule 60(b), Ala. R. Civ.

P., is generally considered an interlocutory order because

further proceedings are contemplated by the trial court;

therefore, such an order is not appealable." Ex parte

Overton, 985 So. 2d 423, 424 (Ala. 2007). This Court also has

stated that "'[a] petition for the writ of mandamus is a

proper method for attacking the grant of a Rule 60(b)

motion.'" Ex parte Wallace, Jordan, Ratliff & Brandt, L.L.C.,

29 So. 3d 175, 177 (Ala. 2009) (quoting Ex parte A&B Transp.,

Inc., 8 So. 3d 924, 931 (Ala. 2007)). Gray did not file a

petition for a writ of mandamus, and the Court of Civil

Appeals apparently chose not to treat her appeal as such a

petition; it therefore dismissed Gray's appeal as being from

a nonfinal judgment.

21
1130378

in Bain and Johnston. The trial court also concluded that

"the original intent of the developers was to attach the

disputed real estate to the lot owners so as to give the

possessor of the end of the slough the use of both side[s],

given the disputed area had no development/usable value."

On December 19, 2013, Gray appealed to the Court of Civil

Appeals the trial court's September 26, 2012, order granting

Bain and Johnston's Rule 60(b) motion and the trial court's

November 19, 2013, order awarding title to the parcel to Bain

and Johnston. On December 27, 2013, the Court of Civil

Appeals transferred Gray's appeal to this Court due to a lack

of subject-matter jurisdiction in that court.

II. Standard of Review

This Court has held that the decision whether to grant or

deny a motion made pursuant to Rule 60(b) is "within the sound

discretion of the trial judge, and the appellate standard of

review is whether the trial court abused its discretion." 

Ex parte Dowling, 477 So. 2d 400, 402 (Ala. 1985).

22
1130378

III. Analysis

We begin by examining the trial court's September 26,

2012, order granting Bain and Johnston's Rule 60(b) motion

because a ruling in Gray's favor as to that order would

require reinstatement of the settlement agreement and

necessarily moot examination of the trial court's November 19,

2013, order on the merits of ownership of the parcel. Gray

makes several arguments regarding the order granting Bain and

Johnston's Rule 60(b) motion, but the one we focus on is

Gray's assertion that 

"[a]ny fair reading of the record, when putting

things in the light most favorable to Bain and

Johnston, would simply indicate that because Bain

and Johnston attempted to approximate the location

of the negotiated common boundary line by means not

authorized under the terms of the settlement, they

thought that the common boundary line would be

located a few feet further north than actually was

the case."

Gray contends that Bain and Johnston's "mistake" was actually

a free and deliberate choice they made for which Rule 60(b) is

not intended to provide them relief. See, e.g., Ex parte

Mealing, [Ms. 2120973, Oct. 25, 2013] ___ So. 3d ___, ___

(Ala. Civ. App. 2013) (stating that "Rule 60(b) is not

designed to relieve a party from the deliberate choices he or

23
1130378

she has made"); Murphy v. Golden Poultry Co., 634 So. 2d 1027,

1029 (Ala. Civ. App. 1994) (noting that "[i]t is not the

intent of Rule 60(b) to relieve a party from the free,

calculated, and deliberate choices he/she has made").

Bain and Johnston answer this argument by contending that

they demonstrated through testimony at the September 26, 2012,

hearing that at the time they assented to the settlement

agreement they simply made a mistake as to where the boundary

line dividing the parcel between the parties would be located

and that they never would have agreed to the boundary line

described in the settlement agreement had they understood its

actual location at that time. Bain and Johnston assert that

they established the existence of a mistake that entitled them

to relief under Rule 60(b).

Even if Bain and Johnston made an honest mistake, the

evidence and arguments are unequivocal that they alone made

the mistake. Bain repeatedly testified that the mistake at

issue was his mistake. Johnston testified that she shared

Bain's understanding of the boundary line. There is no

suggestion that Gray did not understand where the boundary

line would be located at the time the parties reached the

24
1130378

settlement, and, in fact, her undisputed testimony confirmed

that she understood the terms of the agreement. Thus, the

undisputed evidence is that the mistake at issue was a

unilateral mistake on the part of Bain and Johnston.

The trial court appears to have incorrectly assumed -- as

do Bain and Johnston -- that any mistake as to a material fact

of the settlement agreement justified its rescission. 

"Rule 60(b)(1)[, Fed. R. Civ. P.,] authorizes the court to

give relief from a judgment, order, or proceeding for

'mistake, inadvertence, surprise, or excusable neglect,'" but

"judgments entered as a result of settlements may be reopened

[only] when fraud or mutual mistake is shown." 11 Charles

Alan Wright, Arthur K. Miller & Mary Kay Kane, Federal

Practice & Procedure § 2858 (2012). The reason for this is 4

that, although a mutual mistake of fact will permit a court to

reform or rescind a binding settlement agreement, a unilateral

mistake does not justify such relief. "Unilateral mistakes do

"Because the Federal Rules of Civil Procedure were used 4

as a model for Alabama's procedural rules, these 'federal

decisions are highly persuasive when we are called upon to

construe the Alabama Rules.'" Ex parte Full Circle Distrib.,

L.L.C., 883 So. 2d 638, 643 (Ala. 2003) (quoting City of

Birmingham v. City of Fairfield, 396 So. 2d 692, 696 (Ala.

1981)).

25
1130378

not support reformation (absent some fraud or

misrepresentation). Moreover, one party is not customarily

charged to know what is on the other party's mind, so as to

concoct some constructive mutual mistake where there is but a

unilateral mistake." 27 Richard A. Lord, Williston on

Contracts § 70:109 (4th ed. 2003). "As a general rule,

rescission is unavailable where a unilateral mistake is

unknown to the other party (even though that mistake relates

to a basic assumption of a contract and has a material effect

on the agreed exchange of performances)." Williston at

§ 70:111. This Court has explained: 

"We have often had occasion to point out the

grounds on which a court of equity will assume

jurisdiction to reform written instruments. 'First,

where there is a mutual mistake, that is, where

there has been a meeting of minds, an agreement

actually entered into, but the contract, deed,

settlement, or other instrument, in its written

form, does not express what was really intended by

the parties thereto; and, second, where there has

been a mistake of one party, accompanied by fraud or

other inequitable conduct of the remaining parties;'

and also where there has been a mistake on the part

of the scrivener. Of course the mistake must be

unmixed with negligence on the part of the party

seeking relief."

Ballentine v. Bradley, 236 Ala. 326, 328, 182 So. 399, 400-01

(1938). There was no allegation that Bain and Johnston's

26
1130378

mistake was accompanied by fraud or other inequitable conduct

on Gray's part. See also Hackney v. First Alabama Bank, 555

So. 2d 97, 101 (Ala. 1989) (citing the Restatement (Second) of

Contracts §§ 153 and 154 (1979), and holding that, unlike a

mutual mistake of fact, a unilateral mistake will not serve as

a basis for avoiding the contract unless the effect of the

mistake is such that enforcement of the contract would be

unconscionable or the nonmistaken party had reason to know of

the mistake or his or her fault caused it). Meyer v. Meyer,

952 So. 2d 384, 391-92 (Ala. Civ. App. 2006) (declining to

authorize reformation or rescission of a contract as the

result of a mistake that the court concluded was not a "mutual

mistake" and relying on § 8-1-2, Ala. Code 1975, which

provides as follows: "When, through fraud, a mutual mistake

of the parties or a mistake of one party which the other at

the time knew or suspected, a written contract does not truly

express the intention of the parties, it may be revised by a

court on the application of the party aggrieved so as to

express that intention, so far as it can be done without

prejudice to the rights acquired by third persons in good

faith and for value.").

27
1130378

Federal authorities also concur that only a mutual

mistake, and not a unilateral one, permits a court to rescind

or reform a binding settlement agreement.

"In the instant case, ... the district court

erroneously concluded that since a mutual mistake of

material fact would suffice to warrant reformation

of a settlement agreement, a unilateral mistake also

constituted permissible reason to do so. Existing

precedent, however, dictates that only the existence

of fraud or mutual mistake can justify reopening an

otherwise valid settlement agreement. 'One who

attacks a settlement must bear the burden of showing

that the contract he had made is tainted with

invalidity, either by fraud practiced upon him or by

a mutual mistake under which both parties acted.'

Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 630,

68 S.Ct. 296, 298, 92 L.Ed. 242 (1948) (emphasis

added); Asberry v. United States Postal Serv., 692

F.2d 1378, 1380 (Fed. Cir. 1982) (same).

"'If a mistake was made in the present

case, it was made by the defendant alone.

Unlike a mutual mistake, a unilateral

mistake is not sufficient to allow the

mistaken party to limit or avoid the effect

of an otherwise valid settlement agreement.

Kline v. Florida Airlines, Inc., 496 F.2d

919, 920 (5th Cir. 1974); United States v.

Bissett-Berman Corp., 481 F.2d 764, 768

(9th Cir. 1973); Virginia Impression Prod.

Co. v. SCM Corp., 448 F.2d 262, 265 (4th

Cir. 1971)[, cert. denied, 405 U.S. 936, 92

S.Ct. 945, 30 L.Ed.2d 811 (1971)].'

"Cheyenne-Arapaho Tribes of Indians of Oklahoma v.

United States, 671 F.2d 1305, 1311, 229 Ct. Cl. 434

(1982); accord Mid-South Towing Co. v. Har-Win,

Inc., 733 F.2d 386, 392 (5th Cir. 1984) ('In this

case, OKC's alleged ignorance ... is, at most, a

28
1130378

unilateral mistake. There is no claim that either

Mid-South or American Employers' concealed these

other surveys or misrepresented their contents, nor

that there was any overreaching.'); Swift Chem. Co.

v. Usamex Fertilizers, Inc., 490 F. Supp. 1343, 1356

(E.D. La. 1980) ('Whatever the truth is, at best

only one of the parties could have been mistaken

about the issue. A unilateral mistake about a

particular fact is insufficient to reform a contract

otherwise properly entered into.'), aff'd, 646 F.2d

1121 (5th Cir. 1981); Albano Cleaners, Inc. [v.

United States], 455 F.2d 556, 560 (Ct. Cl. 1972);

see also Bowater No. Am. Corp. [v. Murray Mach.,

Inc.], 773 F.2d [71] at 75 [(6th Cir. 1985)] ('The

adequacy of the contract formation [of a settlement

agreement] is further supported by the [fact that]

... there was no mutual mistake, nor was there

mistake due to fraud which only one of the parties

would have known about.') (emphasis added). In the

case at bar, there was no mutual mistake or

fraudulent misrepresentation."

Brown v. County of Genesee, 872 F.2d 169, 174-75 (6th Cir.

1989). See also Allen v. WestPoint-Pepperell, Inc., 945 F.2d

40, 46 (2d Cir. 1991) (stating that "the necessary elements

for rescission based on mutual mistake [are]: both parties to

the release shared the same erroneous belief as to a material

fact, and their acts did not in fact accomplish their mutual

intent").

The "exception to the general principle denying relief

for unilateral mistake [is] when the nonmistaken party knows

or has reason to know of the unilateral mistake." 

29
1130378

28 Williston on Contracts § 70:229. Such was not the case

here. Gray testified without dispute that she had no idea

that Bain and Johnston had a different belief than she did as

to location of the boundary line dividing the parcel when the

parties agreed to the settlement. 

In fact, as Gray observed in her "Motion for

Reconsideration," the situation presented in this case

reflects one in which the parties who made the mistake simply

made an assumption without gathering enough information to

confirm that assumption before assenting to the settlement

agreement. In a similar scenario, the United States Court of

Appeals for the Fifth Circuit explained:

"[E]ven if we accept the contention that Davis gave

his consent to the release based on a mistake of

fact concerning the role of various companies in the

alleged wrongdoing, Davis and his lawyers had an

obligation to determine the facts through discovery

before entering into a broad release of all claims.

A party to a settlement who 'has the means in hand

of ascertaining the facts, but neglects to [use

those means] cannot thereafter have the settlement

set aside because of mistake.' Talbot v. Douglas

Moving & Warehouse Co., 228 So. 2d 222, 224 (La. Ct.

App. 1969), cert. denied, 255 La. 247, 230 So. 2d 94

(1970)."

Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198

(5th Cir. 1991).

30
1130378

Bain and Johnston assert that "[b]efore agreeing to the

settlement, and without a map from which to visualize starting

points, Mr. Bain did everything he could to verify the place

where the new boundary line on Parcel 57 would be in the short

space of time available to him." But the "rush" to confirm

measurements was self-imposed. There is no reason, and Bain

and Johnston offer none, why they could not have declined to

agree to the proposed settlement until they felt sure about

the location of the boundary line -- if indeed they were

unsure about its location. For that matter, there is no

reason the settlement could not have been made contingent on

the parties' agreement with the second Speaks survey

establishing the boundary line dividing the parcel. Bain and

Johnston employed neither course of action. Instead, they

voluntarily proceeded to enter into a binding settlement

agreement that they affirmed in open court, that was

memorialized in a court order, and that became a final

judgment. The current appeal arises from their request that

the trial court undo this agreement and the final judgment

resulting therefrom and provide them instead with a full trial

on the merits of the dispute in question. In short, Bain and

31
1130378

Johnston requested, and the trial court granted, Rule 60(b)

relief based on their own unilateral mistake made within the

context of a free and deliberate choice to settle a matter

that had been pending for 13 years between the parties.5

Bain and Johnston contend that the case of Fabarc Steel 5

Supply, Inc. v. Davis, 422 So. 2d 797 (Ala. Civ. App. 1982),

supports the trial court's decision to grant them Rule 60(b)

relief. In Fabarc, a trial court set aside a worker's

compensation consent judgment under Rule 60(b). Ironically,

in their summary of the facts in Fabarc, Bain and Johnston

note the very fact that distinguishes that case from their

situation:

"The claimant had injured his fingers on the job,

but while he was being treated for his injuries, an

injection into his shoulder allegedly injured his

shoulder to the point that he was totally disabled.

The treating physician told the worker and his

employer that the shoulder was the result of

bursitis. Because of this, the worker went ahead

and settled his case for approximately $1500.

"After the worker learned that the problems with

his shoulder were work related, he moved to set

aside the settlement, which the trial court granted

on the grounds of mutual mistake as to the true

extent of Mr. Davis' injuries."

The Court of Civil Appeals in Fabarc affirmed the trial

court's judgment, likewise noting the existence of a mutual

mistake:

"In the instant case, plaintiff had been told by

Dr. Veach that his shoulder pain was the result of

bursitis. After contacting an attorney, he was

advised that the injury to his fingers would be

fairly compensated by the settlement agreement.

Although plaintiff was totally disabled by the pain

32
1130378

"'The law favors the amicable settlement of

controversies, and it is the duty of courts rather to

encourage than to discourage parties in resorting to

compromise as a mode of adjusting conflicting claims.'" Tatum

v. Cater, 270 Ala. 445, 448, 119 So. 2d 223, 225 (1960)

(quoting 11 Am. Jur. Compromise and Settlement § 4). In this

case, the parties apparently had been attempting to settle

their dispute over the ownership of the parcel for 13 years.

When the parties finally settled, they affirmed their assent

to the terms of the settlement in open court following

specific and repeated inquiries from the trial court. 

Based on the foregoing, we conclude that the trial court

erred in granting Bain and Johnston's Rule 60(b) motion that

set aside the binding settlement agreement between the

parties. We therefore reverse the September 26, 2012, order

in his shoulder and arm, everyone else involved

apparently relied on Dr. Veach's opinion that such

pain was not related to plaintiff's injury to his

fingers. In considering the 60(b) motion, the court

could have determined that plaintiff, uneducated and

not qualified to relate the shoulder pain to the

on-the-job injury, accepted the settlement in

reliance on representations that the settlement

amount was all the money to which he was entitled."

Fabarc, 422 So. 2d at 799 (emphasis added).

33
1130378

granting Bain and Johnston's Rule 60(b) motion. As we noted

at the outset of our analysis, this result also necessarily

means that the trial court should not have entertained a trial

on the merits. Accordingly, the trial court's November 19,

2013, order resulting from that trial and awarding the parcel

to Bain and Johnston is due to be set aside. On remand, the

trial court is instructed to vacate its November 19, 2013,

order and to reinstate its June 12, 2012, judgment approving

the parties' settlement agreement.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Main and Bryan, JJ., concur.

Moore, C.J., and Bolin, J., concur in the result.

34