REL: 09/26/2014




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          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.


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         "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.1   Bain   and   Johnston

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

    1
     Burl Gray died on August 27, 1999. Jean Gray moved to
have him dismissed as a party, and the trial court granted
that motion.
                                    3
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      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




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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.2         On August

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.


    2
     The parties do indicate that attempts to settle the
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 Quit-
    claim 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 Quit-
       claim 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
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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,


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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

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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


    3
     This Court has held that "[a]n order granting a motion
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).4                The reason for this is

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


       4
     "Because the Federal Rules of Civil Procedure were used
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

    5
     Bain and Johnston contend that the case of Fabarc Steel
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
