REL:03/12/2003 SOUTHTRUST BANK V. COPELAND ONE AND PHENIX GIRARD BANK
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) 242-4621), 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, 2003-2004
_________________________
_________________________
v.
Copeland One, L.L.C., and Phenix Girard Bank
Appeal from Lee Circuit Court
On Application for Rehearing
PER CURIAM.
Matters not argued in an appellant's brief on original submission cannot be raised for the first time on application for rehearing. As this Court recently recapitulated this rule:
"[Respondent] raises [this argument] for the first time in its application for rehearing .... 'We can not sanction the practice of bringing up new questions for the first time, in an ex parte application for rehearing.' Robinson v. Allison, 97 Ala. 596, 604, 12 So. 604 (1893) (on application for rehearing). 'We cannot sanction the practice of bringing up new questions for the first time in application for rehearing.' Kirkland v. Kirkland, 281 Ala. 42, 49, 198 So. 2d 771, 777 (1967) (on application for rehearing). 'We cannot sanction the practice of bringing up new questions for the first time in applications for rehearing.' Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 735, 310 So. 2d 210, 212 (1975) (on application for rehearing). 'New supporting arguments presented for the first time on rehearing generally will not be considered.' Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251, 253 (Ala. 1985) (on application for rehearing). '[T]his argument was raised for the first time on application for rehearing, and therefore will not be considered.' Schulte v. Smith, 708 So. 2d 138, 141 n. 2 (Ala. 1997) (on application for rehearing)."
Ex parte Lovejoy, 790 So. 2d 933, 938-39 (Ala. 2000).
This principle precludes us from considering, on the merits, the argument SouthTrust now makes on application for rehearing concerning the proper construction and resolution, contrary to the one we adopted in our original opinion of September 5, 2003, of the ambiguity we found to attend the use of "or" in the phrase "an ATM or any other type of banking facility on the property."
In the post-hearing "brief and closing argument" Copeland One filed with the trial court, it argued that the lease was ambiguous because, among other things, "[s]ection 5.3 contains the disjunctive 'or' in the phrase ATM or any other banking facility." Later in that brief, Copeland One stated the well-established principle that a contract is ambiguous when one or more of its terms is reasonably susceptible to more than one interpretation, and argued that because the use of the disjunctive "or" in the phrase "ATM or any other type of banking facility" was ambiguous, the ambiguity must be construed against SouthTrust, as the drafter of the lease.
In its responsive trial brief, SouthTrust forwent any argument about proper resolution of the ambiguity Copeland One claimed the use of the word "or" created, taking the position instead that there was "nothing ambiguous about this phrase." SouthTrust, in its "Appellant's Opening Brief" to this Court never argued or even took notice of the ambiguity created by the use of the word "or." Rather, SouthTrust addressed ambiguity versus unambiguity only in the context of the phrase "banking facility." In its brief on appeal, Copeland One argued again its contention that the use of "or" created ambiguity. In its reply brief SouthTrust likewise again argued only that "[t]here is nothing ambiguous about this phrase ...." Thus, before the issuance of our original opinion, SouthTrust argued only that the "or" component of the phrase created no ambiguity.
Accordingly, we will not entertain the new position it argues for the first time on
rehearing concerning the proper construction to be accorded the ambiguity created
by the use of the word "or."
APPLICATION OVERRULED.
Houston, Brown, Johnstone, Harwood, Woodall, and Stuart, JJ., concur.
See and Lyons, JJ., dissent.
SEE, Justice (dissenting).
The provision at issue in this case, Section 5.3 of the ATM lease, states, in relevant part:
"Exclusive ATM or Bank. Tenant [SouthTrust] shall have the exclusive right during the term of this lease and any renewals to operate an ATM or any other type of banking facility on the Property."
SouthTrust argued below and in its initial brief to this Court that the provision is unambiguous. The provision is unambiguous: its clear intent is that no one but SouthTrust may operate an ATM or any other type of banking facility on the property. (1) Therefore, I respectfully dissent.
LYONS, Justice (dissenting).
When this Court released its original opinion in this case, I concurred. Upon further consideration of that opinion, I believe I should have dissented. I would, therefore, grant the application for rehearing and I must dissent from the overruling of the application for rehearing.
SouthTrust Bank's standard ATM lease contains a paragraph with the introductory phrase "Exclusive ATM or Bank." That paragraph provides that SouthTrust Bank has the exclusive right to operate an ATM or any type of banking facility at the location of the ATM that is the subject of the lease. I would find that the lease unambiguously gives SouthTrust Bank the exclusive right to operate both an ATM and any other banking facility at that location.
The operation of an ATM is the sole reason for executing such a lease. If, as the Court's opinion holds, this paragraph confers upon SouthTrust Bank the option to elect between an exclusive right to operate an ATM or an exclusive right to operate a bank, but not both, the inevitable result, upon the execution of the ATM lease, is the election of the exclusive right to operate an ATM, thereby making the option of the exclusive right to operate a banking facility a practical impossibility. I would reverse the trial court's judgment, which was based on its finding that the lease is ambiguous, especially in light of the fact that SouthTrust Bank was already operating the only bank on the property when the ATM lease was executed.
Under the logic of the original opinion, I must assume that Phenix Girard Bank will not be allowed to have an ATM at its banking facility because SouthTrust Bank, pursuant to its ATM lease, has that exclusive right. Such an anomalous result underscores the bizarre consequences of the original opinion's treatment of the ATM lease.
1. I understand that language itself has sufficient intrinsic ambiguity that an argument, compellingly and persistently made, when dwelt upon can cause one to doubt the clarity of anything; but there is no real doubt as to the intention of the language used here. See Garrett & Assocs. Real Estate, Inc. v. Colonial Realty Ltd., 840 So. 2d 905, 907 (Ala. Civ. App. 2002) ("We recognize that '"[t]he mere fact that adverse parties contend for different constructions does not in itself force the conclusion that the disputed language is ambiguous."'") (quoting Ex parte Awtrey Realty Co., 827 So. 2d 104, 107 (Ala. 2001)), and Southland Quality Homes, Inc. v. Williams, 781 So. 2d 949, 953 (2000), citing Universal Underwriters Life Ins. Co. v. Dutton, 736 So. 2d 567, 570 (Ala. 1999) ("A court may not twist the plain meaning of the terms in a contract to create an ambiguity under the guise of interpretation.").