Jennifer Alonso and Irasema Ramos Encinas v. Alpha Phi International, Inc. (Appeal from Tuscaloosa Circuit Court: CV-23-160).

Rel: February 28, 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 published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0507
_________________________

Jennifer Alonso and Irasema Ramos Encinas

v.

Alpha Phi International, Inc.

Appeal from Tuscaloosa Circuit Court
(CV-23-160)

LEWIS, Judge.

Jennifer Alonso and her mother Irasema Ramos Encinas appeal

from a judgment entered by the Tuscaloosa Circuit Court ("the circuit

court") granting a summary judgment in favor of Alpha Phi

International, Inc. ("Alpha Phi"), on its breach-of-contract claim. Alonso
CL-2024-0507

and Encinas also challenge the judgment to the extent that it granted

Alpha Phi's motion to strike Alonso and Encinas's amended answer,

counterclaim, and third-party complaint. We affirm the circuit court's

judgment in part and reverse it in part.

Procedural History

On August 30, 2023, Alpha Phi filed a complaint in the Tuscaloosa

District Court ("the district court") against Alonso and Encinas alleging,

in pertinent part:

"2. On or about February 22, 202[2], … Alonso entered
into a Membership Agreement with the Beta Mu Chapter of
Alpha Phi International, Inc., whereby she agreed to [pay]
various membership dues and fees to the Beta Mu Chapter of
Alpha Phi International, Inc.[,] at the University of Alabama
in Tuscaloosa County, Alabama[,] for four (4) years or until
she reached her ninth (9th) semester of College.

"3. On or about February 22, 202[2], … Alonso also
entered into an Individual Member Housing Agreement
(hereinafter 'Housing Agreement') with the Beta Mu Chapter
of Alpha Phi International Inc., whereby she agreed to pay
$9,300.00 in periodic payments for various housing, meals,
and membership dues and fees for housing in the Beta Mu
Chapter house for the 2022-2023 school year.

"4. … Alonso defaulted on the Contracts by failing to
make the agreed monthly installment payments despite
several demands to do so. After allowing for all just credits,
there remains due and owing principal and late fees in the
amount of $7,344.35.

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"5. Pursuant to the terms of the Contracts, [Alonso]
agreed to be liable for all costs of collection, including court
costs and attorney's fees which said fees were calculated to be
$1,836.08.

"….

"WHEREFORE PREMISES CONSIDERED, … Alpha
Phi … demands judgment against … Alonso for the sum of
$9,180.43 plus costs and interest. [Alpha Phi] further prays
such other relief as may be appropriate.

"….

"9. On or about February 22, 2022, … Encinas … co-
signed the Membership Agreement with the Beta Mu Chapter
of Alpha Phi International, Inc.[,] whereby she agreed to be
responsible for various membership dues, fees, and housing to
the Beta Mu Chapter of Alpha Phi International, Inc.[,] at the
University of Alabama in Tuscaloosa County, Alabama[,] for
four (4) years or until … Alonso reached her ninth (9th)
semester of College.

"10. On or about February 22, 2022, … Encinas …
executed the Beta Mu Chapter of Alpha Phi 2022-2023
Housing Agreement Guaranty, whereby she agreed to be
jointly and severally liable for payment of all of [Alonso's]
financial obligations due under the Housing Agreement.

"….

"WHEREFORE PREMISES CONSIDERED, … Alpha
Phi … demands judgment against … Encinas … for the sum
of $9,180.43 plus costs and interest. [Alpha Phi] further prays
such other relief as may be appropriate."

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(Bold typeface omitted) (Capitalization in original). Alpha Phi attached

to its complaint an affidavit supporting its allegations, as well as the

Membership Agreement, the Individual Member Housing Agreement

("the Housing Agreement"), and the Beta Mu Chapter of Alpha Phi 2022-

2023 Housing Agreement Guaranty.

After the matter was removed to the circuit court pursuant to § 12-

12-37, Ala. Code 1975, Alonso and Encinas filed an answer to Alpha Phi's

complaint. Their answer asserted that Alpha Phi's claims were barred

by its own breach of contract, by the unconscionability of the contract, by

"the doctrines of waiver and/or estoppel," and by "provisions of the

Alabama Uniform Landlord & Tenant Act." On January 25, 2024, Alonso

and Encinas each filed an affidavit of substantial hardship requesting a

waiver of the prepayment of the docket fee. The circuit court denied both

requests.

On February 20, 2024, Alpha Phi filed a motion for a summary

judgment. Alpha Phi attached two supporting affidavits to its motion.

On February 22, 2024, Alonso and Encinas filed an amended

answer, as well as a counterclaim and third-party complaint. The

amended answer asserted additional defenses based on 42 U.S.C. § 1981

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and § 3601 et seq., which they referred to as "affirmative defenses." The

"counterclaim and third-party complaint" alleged, in pertinent part:

"10. … Alonso complied with the Housing Agreement
requirements, such as the payment schedule and the
individual responsibilities listed in paragraph 10 of the
Housing Agreement.

"11. Less than three weeks after moving in, on August
18, 2022, … Alonso was informed by Allison Floyd, the Beta
Mu House Chapter Advisor[,] that the chapter submitted a
request for her termination from the sorority.

"12. On August 19, 2022, … Alonso received a letter from
Alpha Phi that she would have until August 26, 2022, to
vacate the sorority house and remove all her personal
belongings.

"13. On August 21, 2022, … Alonso received a
threatening e-mail from Alpha Phi reiterating that she was
recommended for termination from the sorority and
demanding that she pay any remaining balance on her
account to avoid fees or having her account turned over to a
collection agency.

"14. The cited reason for her termination was 'alleged
failure to comply with college or Fraternity rules, regulations,
or standards' because the chapter was made aware of an
alleged incident.

"15. The alleged incident giving rise to … Alonso's
termination occurred prior to her invitation to join the
sorority.

"16. The alleged incident giving rise to … Alonso's
termination was and remains sealed under Alabama law.

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"17. … Alonso should have received the presumption of
innocence from Alpha Phi until proven guilty, which she was
not afforded with a lack of notice or opportunity to be heard.

"II. [Beta Mu House Corporation of Alpha Phi
International Fraternity, Inc. ('Beta Mu House')] and Alpha
Phi Did Not Provide … Alonso with the Opportunity to be
Heard.

"18. Upon information and belief, the Beta Mu House
and Alpha Phi's policies and procedures are available to
members through their membership portals.

"19. Upon information and belief, the Beta Mu House
and Alpha Phi's policies and procedures allow members the
opportunity to be heard by the sorority's judicial board prior
to termination of membership.

"20. … Alonso was not allowed the opportunity to be
heard by the sorority's judicial board prior to the termination
of her membership.

"21. In fact, in response to … Alonso's August 19, 2022,
request for a meeting to discuss her termination, she was
informed on August 20, 2022, by Allison Floyd that no
discussion would change her termination and that she would
instead have the option to appeal.

"22. On August 21, 2022, the Beta Mu House and Alpha
Phi informed … Alonso that her membership was terminated,
referencing 'Alpha Phi's Policies & Procedures' for the process
of return of membership items and to view the outline of the
appeals process.

"23. The Beta Mu House and Alpha Phi revoked …
Alonso's access to her membership portal once her
membership was terminated.

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"24. The Beta Mu House and Alpha Phi did not provide
… Alonso access to its policies and procedures once her
membership was terminated.

"25. … Alonso would not be able to appeal until the
termination was already complete.

"….

"30. Upon information and belief, the Beta Mu House
and Alpha Phi filled … Alonso's vacancy for the following
semester after her membership was terminated.

"31. Alpha Phi has filed suit against … Alonso and
[Encinas] for an amount including the full value of the
membership and housing fees for the 2021-2022 school year.

"….

"33. Following her termination from the Beta Mu House
and Alpha Phi, … Alonso was embarrassed and shunned by
remaining members of the sorority."

Alonso and Encinas asserted several counterclaims against Alpha

Phi and Beta Mu House Corporation of Alpha Phi International

Fraternity, Inc. ("Beta Mu House"), specifically: (1) breach of contract for

the wrongful termination of Alonso's membership in the sorority based

on conduct the sorority could have discovered before accepting her; (2)

unlawful ouster for the termination of Alonso's membership without a

hearing, in violation of the organization's own policies; and (3) intentional

infliction of emotional distress for continuing to reference the

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organization's policies and procedures after terminating Alonso's access

to the online portal where those policies and procedures were located,

terminating her membership without a hearing only three weeks after

she moved in, and demanding payment for the full contract term despite

filling the vacancy. Alonso and Encinas's third-party complaint against

Waldrop & Associates, P.C. ("Waldrop"), alleged that Waldrop had,

"through its agents, violated the Fair Debt Collection Practices Act while

trying to collect an alleged debt from … Alonso" by knowingly contacting

Alonso while she was represented by counsel.

On February 22, 2024, Alpha Phi filed a motion to strike Alonso and

Encinas's amended answer, counterclaim, and third-party complaint on

the basis that Alonso and Encinas had waived their two new defenses

and the claims against Alpha Phi, Beta Mu House, and Waldrop by not

including them in their initial answer. Alpha Phi also argued that the

claims asserted in the counterclaim did not comply with Rule 8(a), Ala.

R. Civ. P., and that Alonso and Encinas were attempting to improperly

bring Beta Mu House and Waldrop into the matter as third-party

defendants without obtaining leave of court to do so and because the

claims against Beta Mu House and Waldrop were unrelated to Alpha

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Phi's claims against Alonso and Encinas. On February 29, 2024, the

circuit court set Alpha Phi's motion for a summary judgment and motion

to strike for a hearing to take place on April 29, 2024.

On April 22, 2024, Alonso and Encinas filed a "motion for joinder

and leave to serve third-party defendants with the third-party

complaint." On the same day, Alonso and Encinas filed a brief opposing

Alpha Phi's motion to strike.

On April 25, 2024, Alonso and Encinas filed a response in opposition

to Alpha Phi's summary-judgment motion. Alonso and Encinas attached

to their response an affidavit executed by Alonso and emails that Alonso

had exchanged with the chapter advisor of Beta Mu. On April 29, 2024,

Alpha Phi filed a motion to strike Alonso and Encinas's brief opposing

summary judgment.

On May 17, 2024, after the April 29, 2024, hearing, the circuit court

entered a final judgment that stated:

"This matter came before the Court for hearing on April
29, 2024, on [Alpha Phi]'s Motion to Strike [Alonso and
Encinas's] Amended Answer, Counterclaim, and Third-Party
Complaint and on [Alpha Phi]'s Motion for Summary
Judgment. … After hearing the evidence and reviewing the
pleadings in the matter the Court finds that [Alpha Phi's]
Motions are hereby GRANTED.

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CL-2024-0507

"It is, therefore, ORDERED, ADJUDGED, and
DECREED that [Alonso and Encinas's] Amended Answer,
Counterclaim, and Third-Party Complaint filed on February
22, 2024, is hereby STRICKEN in its entirety from the Court
record pursuant to Ala. R. Civ. P. 12(f). [Alonso and
Encinas's] Motion for Joinder and Leave to Serve Third-Party
Defendants with the Third-Party Complaint filed on April 22,
2024[,] is hereby DENIED. The Clerk of the Court is
ORDERED to remove the Third-Party Defendants, Beta Mu
[House] … and Waldrop … from the Court record.

"It is further ORDERED, ADJUDGED, and DECREED
that [Alpha Phi]'s Motion for Summary Judgment filed on
February 20, 2024, is hereby GRANTED as the Court finds
there is no genuine issue as to any material fact and [Alpha
Phi] is entitled to judgment as a matter of law pursuant to
Ala. R. Civ. P. 56. Judgment is hereby entered against …
Alonso and … Encinas … in favor of … Alpha Phi … in the
amount of $9,180.43 plus costs and interest, upon which
execution may issue."

(Capitalization in original.)

Alonso and Encinas timely filed a notice of appeal to this court on

June 26, 2024. 1 They also filed affidavits of substantial hardship

requesting a waiver of the docket fee, which the circuit court granted.

1Alonso and Encinas's notice of appeal was stamped by the circuit-

court clerk as electronically filed on June 26, 2024, and the State Judicial
Information System case-action summary indicates that it was filed on
June 26, 2024. However, the notice of appeal is dated June 24, 2024, and
the corresponding docketing statement states that the notice of appeal
was filed on June 25, 2024. We need not determine the actual date on
which the notice of appeal was filed, however, because it would be timely

10
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Discussion

I.

Alonso and Encinas argue that the circuit court erred in entering a

summary judgment in favor of Alpha Phi because, they contend, there

were genuine issues of material fact and the doctrines of

unconscionability and estoppel precluded Alpha Phi's recovery.

Our supreme court has stated:

"[A] trial court should not grant a summary judgment, and an
appellate court will not affirm one, on the basis of an absence
of substantial evidence to support an essential element of a
claim or affirmative defense unless the motion for a summary

if it were filed on any of those three dates. See, e.g., W.N. v. Cullman
Cnty. Dep't of Hum. Res., 282 So. 3d 870, 878 n.7 (Ala. Civ. App. 2019)
(declining to discern which of two dates the notice of appeal was filed on
because it would be timely either way).

We further note that Alonso and Encinas filed an amended notice
of appeal on July 12, 2024, "to reflect that no transcript will be ordered."
That amended notice was filed outside of the time to appeal. However,
the untimeliness of that amended notice has no effect on this appeal
because the initial notice invoking the jurisdiction of this court was
timely. See id. at 879 n.8 (holding that, despite the appellant's untimely
filing of an amended notice of appeal, this court had jurisdiction to
consider the appeal because the original notice was timely filed and the
"amendment was not necessary"); see also Ex parte Taylor, 157 So. 3d
122, 128 (Ala. 2008) ("[T]he only jurisdictional requirement for a notice
of appeal is that the notice be timely filed and … absent a showing that
the alleged defect in the notice of appeal prejudiced the adverse party, an
appeal will not be dismissed on the basis of the defect."); see Dunning v.
New England Life Ins. Co., 890 So. 2d 92 (Ala. 2003).
11
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judgment has properly raised that absence of evidence and
has thereby shifted to the nonmoving party the burden of
producing substantial supporting evidence."

Hollis v. City of Brighton, 885 So. 2d 135, 140 (Ala. 2004). In Green v.

Consumer Mortgage, Inc., 194 So. 3d 247, 253 (Ala. Civ. App. 2015), this

court held that

"because [the plaintiff] failed to address the affirmative
defense raised in [the defendant's] amended answer, [the
plaintiff] never made a prima facie showing that there was no
genuine issue of material fact and the burden never shifted to
[the defendant] to produce any further evidence in support of
his assertion that [the plaintiff] had no interest in the
property. We conclude, therefore, that, because a genuine
issue of material fact remains as to whether [the plaintiff] was
entitled to prevail on its claim of ejectment and to an award
of damages, the trial court erred in entering a summary
judgment in favor of [the plaintiff]. We, therefore, reverse the
summary judgment in favor of [the plaintiff] and remand the
cause to the trial court for further proceedings consistent with
this opinion.

In Green, this court relied on Braswell Wood Co. v. Fussell, 474 So.

2d 67, 69-71 (Ala. 1985): "Our supreme court determined in Braswell

Wood that, because the plaintiff … had offered nothing to contradict the

defenses raised by the defendant in its answer, summary judgment was

improper if entered simply because the defendant had rested on its

pleadings." Green, 194 So. 3d at 252. Notably, the affirmative defenses

at issue in Braswell Wood were waiver and estoppel.

12
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Alpha Phi's summary-judgment motion did not address Alonso and

Encinas's affirmative defenses of unconscionability, estoppel, and waiver.

Alpha Phi's motion argued that Alonso and Encinas defaulted on the

Membership Agreement and specifically addressed the assertion in

Alonso and Encinas's answer that Alpha Phi's claims were barred by

provisions of the Alabama Uniform Landlord & Tenant Act. However,

Alpha Phi did not argue that there was an absence of evidence with

respect to the unconscionability, estoppel, or waiver defenses. Therefore,

the burden did not shift to Alonso and Encinas to produce substantial

evidence regarding those defenses. See Hollis, 885 So. 2d at 140.

Because Alpha Phi did not meet its burden of showing an entitlement to

a summary judgment, the circuit court's judgment is reversed to the

extent that it granted a summary judgment.

II.

Alonso and Encinas also argue that the circuit court erred in

striking their amended answer, which contained two new defenses, as

well as their counterclaim and third-party complaint.

"The standard of review for analyzing the propriety of
an order granting a motion to strike is similar to the standard
of review for analyzing the propriety of a judgment granting
a motion to dismiss -- i.e., the de novo standard of review

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pursuant to which doubts are to be resolved in favor of the
nonmoving party."

Deaton v. South Highland Child Dev. Ctr., Inc., [Ms. SC-2023-0484, June

7, 2024] ___ So. 3d ___, ___ (Ala. 2024).

With respect to Alonso and Encinas's claim against Waldrop, Alpha

Phi's motion to strike argued that the claim should be stricken because

it was not appropriate to be brought as a third-party claim under Rule

14(a), Ala. R. Civ. P. 2 Rule 14(a) allows a defendant to bring in a third

party when the defendant alleges that the third-party is liable to the

defendant "for all or part of the plaintiff's claim against the third-party

plaintiff." Alonso and Encinas's claim against Waldrop is not a third-

party claim as contemplated in Rule 14(a) because Alonso and Encinas

do not assert that Waldrop is liable to them for Alpha Phi's breach-of-

2Alpha Phi also argued that the claim should be stricken because

Alonso and Encinas did not seek leave of court to proceed against the
third party before filing the complaint (as required by Rule 14(a), Ala. R.
Civ. P., when more than 10 days have elapsed since the filing of the
original answer). Because we conclude that the claim against Waldrop
does not substantively align with the type of claim contemplated in Rule
14(a), and therefore that it cannot proceed under Rule 14(a), we need not
determine whether Alonso and Encinas satisfied the procedural
requirements of Rule 14(a) with respect to this claim.
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contract claim against them. They assert a separate, new cause of action

for which Waldrop is liable to them.

Moreover, the circuit court could not have treated the claim as a

counterclaim properly brought under Rule 13(h), Ala. R. Civ. P., because

it was not asserted against an existing party along with Waldrop. In

interpreting Rule 13(h), Ala. R. Civ. P., our supreme court has adopted

the following reasoning regarding Rule 13(h), Fed. R. Civ. P.:

"It is well settled that Fed. R. Civ. P. 13(h) 'only
authorizes the court to join additional persons in order to
adjudicate a counterclaim or cross-claim that already is before
the court or one that is being asserted at the same time the
addition of a nonparty is sought.' FDIC v. Bathgate, 27 F.3d
850, 873 (3d Cir. 1994). 'This means that a counterclaim or
cross-claim may not be directed solely against persons who
are not already parties to the original action, but must involve
at least one existing party.' Id. (emphasis added). See also
Various Markets, Inc. v. Chase Manhattan Bank, N.A., 908 F.
Supp. 459 (E.D. Mich. 1995); 6 Charles A. Wright, Arthur R.
Miller, & Mary K. Kane, Federal Practice and Procedure §
1435, at 271 (1990) (under Rule 13(h), 'a counterclaim or
cross-claim may not be directed solely against persons who
are not already parties to the original action, but must involve
at least one existing party')."

White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d 1042, 1056 (Ala.

2008).

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Waldrop was not an existing party to the action, and the claim

against Waldrop was entirely new and was asserted against Waldrop

only. Therefore, that claim was not properly brought under Rule 13(h).

Because the claim against Waldrop was not properly brought pursuant

to the Alabama Rules of Civil Procedure, we affirm the circuit court's

striking of that claim. See Walker v. North American Sav. Bank, 142 So.

3d 590, 600 n.5 (Ala. Civ. App. 2013) (stating that "[i]t is well established

that an appellate court 'may affirm a trial court's judgment on "any valid

legal ground" ' supported by the record on appeal" (quoting General

Motors Corp. v. Stokes Chevrolet, Inc., 885 So. 2d 119, 124 (Ala. 2003))).

With respect to the striking of the portions of the amended answer

asserting new defenses and a counterclaim, 3 we note that Rule 15(a), Ala.

R. Civ. P., provides:

3The claims against Beta Mu House are, in substance,
counterclaims against Beta Mu House under Rules 13(h) and 20(a), Ala.
R. Civ. P. See Century 21 Paramount Real Est., Inc. v. Hometown Realty,
LLC, 34 So. 3d 658, 663 (Ala. 2009) (holding that "[t]he trial court should
have permitted [the defendant] to bring these additional parties into the
case under Rules 13(h) and 20(a), Ala. R. Civ. P.," even though they were
impermissible under Rule 14(a)); Southern Sash Sales & Supply Co. v.
Wiley, 631 So. 2d 968, 971 (Ala. 1994) (recognizing that pleadings should
be construed according to their substance over their form).

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"Unless a court has ordered otherwise, a party may amend a
pleading without leave of court, but subject to disallowance on
the court's own motion or a motion to strike of an adverse
party, at any time more than forty-two (42) days before the
first setting of the case for trial, and such amendment shall
be freely allowed when justice so requires."

Applying Rule 15(a), our supreme court has stated that, with respect to

amendments sought more than forty-two (42) days before the first setting

of the case for trial,

"a trial court has no discretion; it can deny a requested
amendment only if there exists a 'valid ground' for the denial,
such as 'actual prejudice or undue delay.' Ex parte GRE Ins.
Group, 822 So. 2d [388, 390 (Ala. 2001)]. In other words, the
burden is on the trial court to state a valid ground for its
denial of a requested amendment."

Pursuant to Rule 13(h), Ala. R. Civ. P., "[p]ersons other than those
made parties to the original action may be made parties to a counterclaim
or cross-claim in accordance with the provisions of Rules 19 and 20[, Ala.
R. Civ. P.]"
Rule 20(a), Ala. R. Civ. P., states:
"All persons may be joined in one action as defendants if there
is asserted against them jointly, severally, or in the
alternative, any right to relief in respect of or arising out of
the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all
defendants will arise in the action."

Each of the claims against Beta Mu House and Alpha Phi arise out
of the same transaction or occurrence. Therefore, the claims against Beta
Mu House were, in substance, counterclaims brought under Rule
13(h). See Century 21 Paramount Real Est., Inc., 34 So. 3d at 663.

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Ex parte Liberty Nat'l Life Ins., 858 So. 2d 950, 953 (Ala. 2003); see also

Starr v. Wilson, 11 So. 3d 846, 850 n.1 (Ala. Civ. App. 2008) (holding that,

when the defendant sought to amend the answer to add a counterclaim

before the trial had been scheduled, the amendment was allowed as of

right pursuant to Rule 15(a), Ala. R. Civ. P., despite the provision in Rule

13(f), Ala. R. Civ. P., stating that an omitted counterclaim may be filed

with leave of court). In this case, Alonso and Encinas filed their

amendment on February 22, 2024, before the circuit court had set the

case for any hearing. Therefore, the circuit court could only disallow the

amendment if a valid ground existed. See Ex parte Liberty Nat'l Life

Ins., 858 So. 2d at 953.

We note that the circuit court's judgment indicated that it received

evidence at the hearing on the motion to strike and motion for a summary

judgment. Although Alonso and Encinas indicated on their notice of

appeal that they would order a copy of the transcript, no transcript

appears in the record on appeal, and the amended notice of appeal that

Alonso and Encinas filed out of time indicated that they would not order

a transcript. Alonso and Encinas have not sought to supplement the

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record with the transcript or to submit a statement of the evidence

pursuant to Rule 10(d), Ala. R. App. P.

"Alabama law is well settled that an 'appellant has the
burden of ensuring that the record contains sufficient
evidence to warrant reversal.' Newman v. State, 623 So. 2d
1171, 1172 (Ala. Civ. App. 1993). In addition, when a trial
court's judgment is based on evidence that is not before the
appellate court, we conclusively presume that the court's
judgment is supported by the evidence. Id."

Townsquare Media Tuscaloosa License, LLC v. Moore, 374 So. 3d 705,

709 (Ala. Civ. App. 2022).

Because this court does not have the benefit of reviewing the

evidence and arguments presented at the hearing on the motion to strike,

we cannot conclude that the circuit court did not have a valid basis for

granting that motion. Therefore, we will not reverse the circuit court's

judgment to the extent that it struck Alonso and Encinas's amended

answer, counterclaim, and third-party complaint. 4

4Although we recognize that we have reversed the summary
judgment despite the absence of the summary-judgment-hearing
transcript, our reversal of the summary judgment is not based on an issue
of fact. Rather, we have concluded, as a matter of law, that Alpha Phi's
motion failed to shift the burden to Alonso and Encinas. See, e.g.,
Williams v. Hobson, 5 So. 3d 630, 633 (Ala. Civ. App. 2008) (holding that
" '[a]n appellant is not required to include the trial transcript in the record
on appeal when the transcript is not necessary to decide the issue

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Conclusion

Based on the foregoing, we affirm the circuit court's judgment

insofar as it granted Alpha Phi's motion to strike, and we reverse the

judgment insofar as it awarded summary judgment to Alpha Phi. We

remand the cause for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Edwards, Hanson, and Fridy, JJ., concur.

Moore, P.J., concurs in the result, without opinion.

presented for review,' such as when the question presented 'is one of law,
not fact.' " (quoting Douglass v. Allen, 574 So. 2d 39, 41 (Ala. Civ. App.
1990)).
20