Rel: March 21, 2025
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) 229-0650), 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 OCTOBER TERM, 2024-2025
_________________________
SC-2023-0561 _________________________
Island Girl Outfitters, LLC, and Anthony S. Carver
v.
Allied Development of Alabama, LLC
Appeal from Baldwin Circuit Court (CV-22-900259)
MITCHELL, Justice.
Allied Development of Alabama, LLC, owns Eastern Shore Centre,
an outdoor shopping mall in Spanish Fort. Island Girl Outfitters, LLC SC-2023-0561
("IGO"), operated a store there known as Hippie Gurlz, but closed it after
the first year of its five-year lease. Allied Development then filed a
complaint in the Baldwin Circuit Court, seeking rent and other damages
that were due under the lease. The trial court ultimately entered a
$94,350 judgment in favor of Allied Development and against IGO and
its owner, Anthony S. Carver, who had personally guaranteed IGO's
obligations under the lease. IGO and Carver appeal. We affirm.
Facts and Procedural History
In late 2020, IGO entered into a five-year lease with Allied
Development for a 2,100-square-foot storefront in Eastern Shore Centre.
Under the terms of the lease, IGO was obligated to pay Allied
Development a base monthly rent of $3,000 (with escalators at the
beginning of years two and four). Carver signed the lease on behalf of
IGO and executed a separate guaranty agreement requiring him to
personally make any payments that IGO failed to make.
IGO took possession of the leased storefront in January 2021 and
opened Hippie Gurlz, a store selling ladies' apparel and accessories, home
goods, and related products. But sales were slower than expected, and,
by the end of the year, IGO had decided to close the store. IGO vacated
2 SC-2023-0561
the premises at the end of January 2022. Shortly thereafter, another
tenant at Eastern Shore Centre moved its existing store to the former
Hippie Gurlz location.
IGO's lease provided that, if it vacated the premises, it would
immediately become liable for damages, including future rent owed
under the lease and expenses incurred by Allied Development in
connection with the default. Six weeks after Hippie Gurlz closed, Allied
Development filed a breach-of-contract action against IGO and Carver to
enforce that provision.
Allied Development later moved for summary judgment, arguing
that it was undisputed that IGO had breached the lease and that, under
the terms of the lease and the guaranty agreement, IGO and Carver owed
it $89,010 for rent, interest, costs, and fees. Allied Development
supported its motion with copies of the lease and the guaranty
agreement, along with an affidavit from its employee, Alton Hankins,
describing IGO's tenure at Eastern Shore Centre and stating the amount
it owed for the remainder of the lease term.
IGO and Carver opposed the summary-judgment motion. They first
argued that they had closed Hippie Gurlz only because Allied
3 SC-2023-0561
Development had failed to properly market and maintain Eastern Shore
Centre. Next, they argued that they should not be liable for any future
rent owed under the lease because Allied Development had relet the
former Hippie Gurlz storefront only a month after they vacated the
premises. Finally, they noted that Allied Development had not provided
an itemization of the $89,010 in damages it was claiming.
Allied Development then submitted another affidavit from Hankins
explaining that it had convinced an existing tenant to move into the
Hippie Gurlz storefront because it was a prominent location that Allied
Development did not want to remain vacant. But, Hankins noted, that
tenant's former location had remained vacant since the move. Hankins
further provided a more detailed explanation for the damages Allied
Development was claiming, which now totaled $146,910.
Following a hearing, the trial court granted Allied Development's
summary-judgment motion in part, holding that there were no genuine
issues of material fact as to IGO's and Carver's liability. The trial court
then set a damages hearing for the next month. A transcript of that
hearing is not in the record, but the trial court later entered a $94,350
4 SC-2023-0561
judgment in favor of Allied Development and against IGO and Carver.
They now appeal.
Standard of Review
On appeal, IGO and Carver challenge both the partial summary
judgment holding that IGO had breached its lease with Allied
Development and the final judgment entered after a hearing to
determine the damages owed Allied Development for that breach. As to
the liability determination, "our review is de novo." Nationwide Prop. &
Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). We
apply the same standard the trial court used; that is, we must determine
whether there is substantial evidence establishing the existence of a
genuine issue of material fact that must be resolved by a fact-finder. Id.
In conducting that review, we view the evidence in the light most
favorable to the nonmovant and entertain such reasonable inferences as
the jury would have been free to draw. Jefferson Cnty. Comm'n v. ECO
Pres. Servs., L.L.C., 788 So. 2d 121, 127 (Ala. 2000).
As to damages, we do not have a transcript of the damages hearing
before us. But both sides have indicated that the evidence considered by
the trial court at that hearing included live testimony. See IGO and
5 SC-2023-0561
Carver's postjudgment motion to alter, amend, or vacate judgment
(stating that the trial court held "a hearing on damages" at which it
"heard evidence of damages claimed by the plaintiff and against the
defendants for breach of a five-year commercial lease agreement");
appellate brief of Allied Development at 18 (stating that an "ore tenus
trial" was conducted). Therefore, we review the trial court's findings of
fact concerning its award of damages under the ore tenus rule, and the
judgment based on those findings will be reversed only if they are plainly
or palpably wrong or against the preponderance of the evidence. Water
Works & Sewer Bd. of Prichard v. Synovus Bank, [Ms. SC-2023-0881,
May 17, 2024] ___ So. 3d ___, ___ (Ala. 2024).
Analysis
IGO and Carver first argue that the trial court erred by entering a
partial summary judgment holding IGO liable for breach of its lease with
Allied Development. They argue that Allied Development could not
establish a breach-of-contract claim against them because, they say,
Allied Development failed to fulfill its own obligations to adequately
market and maintain Eastern Shore Centre. See, e.g., Beauchamp v.
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Rel: March 21, 2025
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) 229-0650), 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 OCTOBER TERM, 2024-2025
_________________________
SC-2023-0561 _________________________
Island Girl Outfitters, LLC, and Anthony S. Carver
v.
Allied Development of Alabama, LLC
Appeal from Baldwin Circuit Court (CV-22-900259)
MITCHELL, Justice.
Allied Development of Alabama, LLC, owns Eastern Shore Centre,
an outdoor shopping mall in Spanish Fort. Island Girl Outfitters, LLC SC-2023-0561
("IGO"), operated a store there known as Hippie Gurlz, but closed it after
the first year of its five-year lease. Allied Development then filed a
complaint in the Baldwin Circuit Court, seeking rent and other damages
that were due under the lease. The trial court ultimately entered a
$94,350 judgment in favor of Allied Development and against IGO and
its owner, Anthony S. Carver, who had personally guaranteed IGO's
obligations under the lease. IGO and Carver appeal. We affirm.
Facts and Procedural History
In late 2020, IGO entered into a five-year lease with Allied
Development for a 2,100-square-foot storefront in Eastern Shore Centre.
Under the terms of the lease, IGO was obligated to pay Allied
Development a base monthly rent of $3,000 (with escalators at the
beginning of years two and four). Carver signed the lease on behalf of
IGO and executed a separate guaranty agreement requiring him to
personally make any payments that IGO failed to make.
IGO took possession of the leased storefront in January 2021 and
opened Hippie Gurlz, a store selling ladies' apparel and accessories, home
goods, and related products. But sales were slower than expected, and,
by the end of the year, IGO had decided to close the store. IGO vacated
2 SC-2023-0561
the premises at the end of January 2022. Shortly thereafter, another
tenant at Eastern Shore Centre moved its existing store to the former
Hippie Gurlz location.
IGO's lease provided that, if it vacated the premises, it would
immediately become liable for damages, including future rent owed
under the lease and expenses incurred by Allied Development in
connection with the default. Six weeks after Hippie Gurlz closed, Allied
Development filed a breach-of-contract action against IGO and Carver to
enforce that provision.
Allied Development later moved for summary judgment, arguing
that it was undisputed that IGO had breached the lease and that, under
the terms of the lease and the guaranty agreement, IGO and Carver owed
it $89,010 for rent, interest, costs, and fees. Allied Development
supported its motion with copies of the lease and the guaranty
agreement, along with an affidavit from its employee, Alton Hankins,
describing IGO's tenure at Eastern Shore Centre and stating the amount
it owed for the remainder of the lease term.
IGO and Carver opposed the summary-judgment motion. They first
argued that they had closed Hippie Gurlz only because Allied
3 SC-2023-0561
Development had failed to properly market and maintain Eastern Shore
Centre. Next, they argued that they should not be liable for any future
rent owed under the lease because Allied Development had relet the
former Hippie Gurlz storefront only a month after they vacated the
premises. Finally, they noted that Allied Development had not provided
an itemization of the $89,010 in damages it was claiming.
Allied Development then submitted another affidavit from Hankins
explaining that it had convinced an existing tenant to move into the
Hippie Gurlz storefront because it was a prominent location that Allied
Development did not want to remain vacant. But, Hankins noted, that
tenant's former location had remained vacant since the move. Hankins
further provided a more detailed explanation for the damages Allied
Development was claiming, which now totaled $146,910.
Following a hearing, the trial court granted Allied Development's
summary-judgment motion in part, holding that there were no genuine
issues of material fact as to IGO's and Carver's liability. The trial court
then set a damages hearing for the next month. A transcript of that
hearing is not in the record, but the trial court later entered a $94,350
4 SC-2023-0561
judgment in favor of Allied Development and against IGO and Carver.
They now appeal.
Standard of Review
On appeal, IGO and Carver challenge both the partial summary
judgment holding that IGO had breached its lease with Allied
Development and the final judgment entered after a hearing to
determine the damages owed Allied Development for that breach. As to
the liability determination, "our review is de novo." Nationwide Prop. &
Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). We
apply the same standard the trial court used; that is, we must determine
whether there is substantial evidence establishing the existence of a
genuine issue of material fact that must be resolved by a fact-finder. Id.
In conducting that review, we view the evidence in the light most
favorable to the nonmovant and entertain such reasonable inferences as
the jury would have been free to draw. Jefferson Cnty. Comm'n v. ECO
Pres. Servs., L.L.C., 788 So. 2d 121, 127 (Ala. 2000).
As to damages, we do not have a transcript of the damages hearing
before us. But both sides have indicated that the evidence considered by
the trial court at that hearing included live testimony. See IGO and
5 SC-2023-0561
Carver's postjudgment motion to alter, amend, or vacate judgment
(stating that the trial court held "a hearing on damages" at which it
"heard evidence of damages claimed by the plaintiff and against the
defendants for breach of a five-year commercial lease agreement");
appellate brief of Allied Development at 18 (stating that an "ore tenus
trial" was conducted). Therefore, we review the trial court's findings of
fact concerning its award of damages under the ore tenus rule, and the
judgment based on those findings will be reversed only if they are plainly
or palpably wrong or against the preponderance of the evidence. Water
Works & Sewer Bd. of Prichard v. Synovus Bank, [Ms. SC-2023-0881,
May 17, 2024] ___ So. 3d ___, ___ (Ala. 2024).
Analysis
IGO and Carver first argue that the trial court erred by entering a
partial summary judgment holding IGO liable for breach of its lease with
Allied Development. They argue that Allied Development could not
establish a breach-of-contract claim against them because, they say,
Allied Development failed to fulfill its own obligations to adequately
market and maintain Eastern Shore Centre. See, e.g., Beauchamp v.
Coastal Boat Storage, LLC, 4 So. 3d 443, 450 (Ala. 2008) (explaining that,
6 SC-2023-0561
" 'in order to establish that a defendant is liable for a breach of a bilateral
contract, a plaintiff must establish that he has performed … under the
contract' " (citation omitted)). IGO and Carver state that they submitted
evidence to the trial court showing that Allied Development made only
minimal efforts to advertise Eastern Shore Centre and that the mall was
generally unkempt and in a state of disrepair. Thus, they argue, there
were genuine issues of material fact about Allied Development's own
performance under the lease -- and, specifically, whether IGO breached
the lease -- that should have precluded the trial court from entering
summary judgment on the issue of liability.
The problem with IGO and Carver's position is that nowhere in
their brief have they identified anything that obligated Allied
Development to market or maintain Eastern Shore Centre in any specific
manner. "In order to secure a reversal, the appellant has an affirmative
duty of showing error upon the record." Certain Underwriters at Lloyd's,
London v. Southern Nat. Gas Co., 142 So. 3d 436, 464 (Ala. 2013).
"Furthermore, it is not the duty of the appellate court to search the record
for evidence to support an appellant's contention of error." Id. at 453.
Because IGO and Carver have not shown that Allied Development had a
7 SC-2023-0561
duty to market and maintain Eastern Shore Centre under the lease, we
cannot say that Allied Development breached the lease by marketing and
maintaining the mall in a manner that IGO and Carver found to be
unsatisfactory. Thus, the trial court's summary judgment on the issue of
liability is affirmed.
IGO and Carver next argue that the trial court's award of $94,350
in damages should be reversed because Allied Development relet the
former Hippie Gurlz storefront to another tenant only a month after
Hippie Gurlz closed. Acknowledging the lower rent that this new tenant
was obligated to pay under its lease, IGO and Carver argue that they
should be liable for no more than $18,900 in damages.
But it is impossible for us to determine whether IGO and Carver's
argument has any merit because we do not know the basis for the trial
court's damages calculation or the evidence the trial court considered
when making its decision. The trial court's judgment stated only: "Trial
conducted; judgment rendered for plaintiff in the amount of $94,350 plus
costs of court." And a transcript of the damages hearing -- at which the
trial court appears to have heard live testimony -- is not included in the
record.
8 SC-2023-0561
Under the ore tenus rule, when a trial court hears live testimony,
its findings of fact are presumed correct and the resulting judgment will
be reversed only if it is shown to be plainly or palpably wrong or against
the preponderance of the evidence. Water Works & Sewer Bd. of
Prichard, ___ So. 3d at ___. And an appellant cannot meet its burden of
making that showing when a transcript of the evidentiary hearing -- or,
if the transcript is unavailable, a "statement of the evidence" that
complies with Rule 10(d), Ala. R. App. P. -- is not included in the record
on appeal. As our Court of Civil Appeals has succinctly explained, when
" ' "oral testimony is considered by the trial court in reaching its judgment
and that testimony is not present in the record as either a transcript or
Rule 10(d), [Ala]. R. [App]. P., statement, it must be conclusively
presumed that the testimony [was] sufficient to support the judgment." ' "
Cockrell v. Cockrell, 40 So. 3d 712, 717 (Ala. Civ. App. 2009) (citations
omitted). In such instances, we must affirm a trial court's judgment and
have no need to address the merits of the appellant's underlying
arguments. Id. Accordingly, the trial court's damages calculation stands.
9 SC-2023-0561
Conclusion
The evidence submitted to the trial court on summary judgment
established that there were no genuine issues of material fact about
whether (1) IGO had breached its lease with Allied Development and (2)
whether Carver was liable for that breach under the terms of the
guaranty agreement he executed in conjunction with the lease. And IGO
and Carver have failed to show that the trial court's damages calculation
is unsupported by the evidence. For these reasons, the $94,350 judgment
in favor of Allied Development is affirmed.
AFFIRMED.
Stewart, C.J., and Shaw, Wise, Mendheim, Cook, and McCool, JJ.,
concur.
Bryan and Sellers, JJ., concur in the result.