Burdette v. Auburn-Opelika Investments, LLC, [Ms. 1190767, 1190801, June 18, 2021] __ So. 3d __ (Ala. 2021). The Court, in a plurality opinion (Stewart, J.; Parker, C.J., and Bolin and Wise, JJ., concur; Sellers, J., concurs in the result) affirms a judgment from the Lee Circuit Court following an ore tenus trial which holds that a limited liability company’s obligation to plaintiff under a note was satisfied when plaintiff accepted a sum of money for his shares in the LLC. The Court reiterates the familiar ore tenus standard of review:
Standard of Review
“Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.”’ Smith v. Muchia, 854 So. 2d 85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala. 1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So. 2d 669, 672 (Ala. 1995). The ore tenus standard of review, succinctly states, is as follows:
“ ‘ “[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791, 795 (Ala. 2000)(quoting Raidt v. Crane, 342 So. 2d 358, 360 (Ala. 1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994).”
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
Ms. **11-12. The Court reviews the conflicting evidence about the parties’ intentions and concludes the trial court correctly considered extrinsic evidence because of a latent ambiguity in the agreement whereby the plaintiff purchased his shares:
“A latent ambiguity ... exists when the ‘writing appears clear and unambiguous on its face,” but there is some collateral matter which makes the meaning uncertain.” ’ Medical Clinic Bd. of City of Birmingham-Crestwood v. Smelley, 408 So. 2d 1203, 1206 (Ala. 1981)(quoting Ford v. Ward, 272 Ala. 235, 240, 130 So. 2d 380, 384 (1961)). In making the threshold determination of whether there is a latent ambiguity, a court may consider extrinsic evidence. Brown v. Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 942 (Ala. 1983). If it determines that a latent ambiguity exists, the court may then consider and rely upon extrinsic evidence to determine the true intentions of the parties to the contract. Mass Appraisal Servs., Inc. v. Carmichael, 404 So. 2d 666, 672 (Ala. 1981).”
Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020).
Ms. *14. Given the extrinsic evidence, which was conflicting, “[i]t was within the province of the trial court judge as the fact-finder to resolve any conflicts in the testimony and to judge the credibility of the witnesses.” Ms. **16-17, quoting Imperial Aluminum-Scottsboro, LLC v. Taylor, 295 So. 3d 51, 61-62 (Ala. 2019).
The Court (Stewart, J.; Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur) also rejects the limited liability company’s cross-appeal contending the trial court judgment denying its request for relief under the Alabama Litigation Accountability Act, § 12-19-270, et seq., was erroneous. The Court holds, based on the conflicting evidence, that the trial court properly concluded that the LLC had failed to meet its burden under §12-19-271 of proving the action was commenced “without substantial justification.” Ms. **18-21.