Billy Ray Morris v. Celeste R. Lazzari and Cynthia Lazzari

Rel: October 17, 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
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
_________________________

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_________________________

Billy Ray Morris

v.

Celeste R. Lazzari and Cynthia Lazzari

Appeal from Baldwin Circuit Court
(CV-19-900912)

EDWARDS, Judge.

On August 19, 2022, the Baldwin Circuit Court ("the trial court")

entered a judgment enjoining Celeste R. Lazzari and Cynthia Lazzari

("the Lazzaris") from altering the natural flow of water across their

property. The Lazzaris were also ordered to "take all necessary steps …
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to capture or prevent runoff water from flowing onto [the neighboring

property]," which, at that time, was owned by Wes Morris and Billy Ray

Morris.1 In addition, the judgment directed the Lazzaris to pay damages

in the amount of $2,500. Postjudgment practice relating to the August

2022 judgment was completed on January 10, 2023. 2 No party filed a

timely appeal from the August 2022 judgment.

On July 8, 2024, the Lazzaris filed in the trial court what they

entitled a "Motion of Compliance With the Court's Order." In that

motion, the Lazzaris stated that they had, in their opinion, complied with

the August 2022 judgment by paying the $2,500 damages award and by

correcting the flow of surface water over their property. They requested

a hearing and that the trial court "confirm" their compliance with the

August 2022 judgment. Although their motion was not styled as such,

their motion was a motion filed pursuant to Rule 60(b)(5), Ala. R. Civ. P.,

1The record indicates that Wes Morris died at some point after the

entry of the August 2022 judgment. Billy Morris is the sole appellant in
this appeal.

2The record indicates that, in December 2022, the parties consented

to the postponement of a postjudgment hearing beyond the 90-day period
for ruling on the postjudgment motion directed to the August 2022
judgment filed by Wes Morris and Billy Morris, thus, extending the time
for a ruling on that motion. See Rule 59.1, Ala. R. Civ. P.
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seeking a determination that the August 2022 judgment had been

satisfied. See Nationwide Mut. Fire Ins. Co. v. Austin, 34 So. 3d 1238,

1241 (Ala. 2009) (construing a motion as a Rule 60(b)(5) motion because

it sought a declaration that a judgment had been paid); 1st Franklin Fin.

Corp. v. Pettway, 333 So. 3d 149, 151 (Ala. Civ. App. 2021) (same). The

trial court set the motion for a hearing, which, after two continuances,

was ultimately held on October 8, 2024.

On October 3, 2024, Billy Morris ("Morris") filed an objection to the

Rule 60(b)(5) motion. In his objection, Morris asserted that the drainage

issues that had prompted the initial lawsuit against the Lazzaris had not

been ameliorated, and he requested a continuance of the hearing on the

Rule 60(b)(5) motion so that surveyors and engineers that he intended to

retain could enter the property, determine whether the flooding issues

had been properly abated, and, if those issues had not been properly

abated, propose reasonable solutions to the surface-water problem. He

supported his objection with an affidavit in which he asserted that the

Lazzaris had been required to put in a pipe to solve the surface-water

issues but had made only nominal changes that had not abated the

flooding. The Lazzaris responded to Morris's objection and, within that

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response, moved to strike Morris's affidavit, stating that his assertion in

that affidavit that they had been required to install a pipe was false. The

trial court took no action on the motion to strike.

On October 21, 2024, Morris filed in the trial court a proposed order,

which stated:

"This matter was before the Court on [the Lazzaris']
Motion of Compliance With the Court's [August 2022] Order,
[Morris's] objection[,] and [Morris's] Motion for Order
Allowing Surveyor and Engineer to Enter [the Lazzaris']
Property.

"After hearing arguments, the Court resets [the
Lazzaris'] Motion regarding [their] assertion that they have
complied with the Court's [August 2022] Order. The …
Motion will be reset for an evidentiary hearing in ninety (90)
days for the reasons set forth below.

"[Morris's] request that [he] be given temporary access
to the [Lazzaris'] property to gather information on the
pending question of whether the flooding problem has been
properly abated is GRANTED.

"[The Lazzaris] are hereby ordered to allow a
professional surveyor and/or a professional engineer hired or
retained by … Morris to enter [the subject] property at Lot 2,
Fish River Park for the purpose of testing and gathering
information related to forming opinions."

(Capitalization in original.)

On October 30, 2024, the trial court entered an order stating,

without elaboration, that the Rule 60(b)(5) motion filed by the Lazzaris

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was granted. Morris filed two separate motions on November 1, 2024.

The first of those motions was labeled as a "motion to reconsider" and

appears to be a postjudgment motion directed to the October 30, 2024,

order in which Morris requests that the trial court reconsider its finding

that the August 2022 judgment had been satisfied ("the postjudgment

motion"). The second motion was labeled as a "motion to compel and for

sanctions" and appears to be, at least in part, a motion seeking

enforcement of the August 2022 judgment pursuant to Rule 70, Ala. R.

Civ. P. ("the Rule 70 motion"), see Rule 70 ("If a judgment directs a party

to … perform any ... specific act and the party fails to comply within the

time specified, the court may direct the act to be done at the cost of the

disobedient party by some other person appointed by the court and the

act when so done has like effect as if done by the party."); Alabama Dep't

of Labor v. Wiggins, 168 So. 3d 84, 87 (Ala. Civ. App. 2014) (concluding

that a motion "seeking to enforce the trial court's judgment in [the

movant's] favor" was a Rule 70 motion).

In the postjudgment motion, Morris requested that the trial court

set a hearing on that motion so that the court "[could] actually hear the

real evidence that will show that [the Lazzaris] have done nothing to

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comply with the [August 2022] judgment in this case and that the

problems have not abated at all." In support of the postjudgment motion,

Morris attached his own affidavit, in which he stated that the Lazzaris

had "done nothing to fix the problem since the [trial] court ordered them

to do so." In the Rule 70 motion, Morris asserted that the Lazzaris were

in violation of the directives of the August 2022 judgment; Morris sought

an order requiring the Lazzaris to comply with the August 2022 judgment

and the imposition of sanctions to ensure their compliance. Morris

attached to the Rule 70 motion an affidavit identical to the one he had

appended to the postjudgment motion. The Lazzaris moved to dismiss

the Rule 70 motion and responded to the postjudgment motion by

requesting that that motion be denied.

On January 31, 2025, the trial court entered an order denying the

postjudgment motion. Although the State Judicial Information System

case-action-summary sheet reflects that the trial court "disposed" of

Morris's Rule 70 motion "by separate order" on January 31, 2025, the

record does not contain any such order. However, because the trial court

had granted Rule 60(b)(5) relief to the Lazzaris, the August 2022

judgment had been set aside or vacated, and Morris's Rule 70 motion

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could not have been directed to that judgment, making his request to

enforce the judgment pursuant to Rule 70 moot; his motion, therefore, no

longer remains pending. Hilb, Rogal & Hamilton Co. v. Beiersdoerfer,

989 So. 2d 1045, 1055 (Ala. 2007) (determining that a request for

remittitur became moot and "therefore was no longer pending" when the

judgment to which it had been directed had been vacated when a motion

for a new trial was granted). Morris filed a notice of appeal on February

13, 2025. 3

On appeal, Morris first argues that the trial court lacked subject-

matter jurisdiction to entertain the Lazzaris' Rule 60(b)(5) motion.

Morris's argument is grounded in his belief that the motion that the

Lazzaris filed was, in actuality, a petition for contempt, which requires

the institution of a new action and payment of a filing fee. See Ex parte

SE Prop. Holdings, LLC, 353 So. 3d 533, 536 (Ala. 2021) (stating that,

3The Lazzaris argue in their brief on appeal that Morris's appeal is

untimely because, they say, his notice of appeal indicates that he is
seeking review of the August 2022 judgment; we reject that contention.
A full and fair reading of Morris's notice of appeal indicates that he is
seeking review of the denial of his postjudgment motion directed to the
October 30, 2024, order on the Rule 60(b)(5) motion directed to the
August 2022 judgment. Morris's appeal is proper and timely, and, to the
extent that the Lazzaris request a dismissal of Morris's appeal, that
request is denied.
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"in many cases, a petition seeking the imposition of sanctions based on a

finding of contempt initiates an independent proceeding that requires

payment of a filing fee"). However, the Lazzaris were not seeking to have

Morris held in contempt for violating the August 2022 judgment, and

they were not, as he appears to contend, seeking an order determining

that they were not in contempt of the August 2022 judgment. As we have

already explained, the Lazzaris filed a Rule 60(b)(5) motion seeking to

have the August 2022 judgment deemed to be "satisfied." Such a motion

"must be directed to the judgment in the case in which the motion was

filed," Hardy v. Johnson, 245 So. 3d 617, 621 (Ala. Civ. App. 2017), and

does not require the institution of a new action or the payment of a filing

fee. See Caton v. City of Pelham, 329 So. 3d 5, 20 (Ala. 2020) (quoting

Rule 60, Committee Comments on 1973 Adoption) (explaining that " '[t]he

normal procedure to attack a judgment under … [R]ule [60] will be by

motion in the court which rendered the judgment' " and stating that a

movant need not pay a filing fee for the trial court to have subject-matter

jurisdiction to entertain such a motion); Opinion of the Clerk No. 12, 361

So. 2d 534, 536 (Ala. 1978) (stating that "a motion under Rule 60(b) …

shall be considered, not as a new matter but, as part of the original case").

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Relying on Satterfield v. Winston Industries, Inc., 553 So. 2d 61, 63

(Ala. 1989), Morris next argues that, because "[t]here were no new facts

presented to justify the trial court's revisit [sic] of the original, final

judgment," relief under Rule 60(b)(5) was unavailable to the Lazzaris. In

Nationwide Mutual Fire Insurance Co. v. Austin, 34 So. 3d 1238, 1241

(Ala. 2009) (quoting Rule 60(b)(5)), our supreme court explained that

Rule 60(b)(5) permits a trial court to relieve a party from a final judgment

"if the circumstances presented fall within one of three categories,

namely: '[i] the judgment has been satisfied, released, or discharged, or

[ii] a prior judgment upon which it is based has been reversed or

otherwise vacated, or [iii] it is no longer equitable that the judgment

should have prospective a pplication.' " The movant in Satterfield had

based his Rule 60(b)(5) motion on the third category for relief under Rule

60(b)(5) and argued that "it [was] no longer equitable for the judgment to

have prospective application." Satterfield, 553 So. 2d at 63. Our supreme

court explained that "[t]hat portion of Rule 60(b)(5) relied on by [the

movant,] Satterfield[,] applies only when new facts or new law arises

after the original judgment is entered, rendering prospective application

of the judgment inequitable." Id. However, the Lazzaris are not relying

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on the portion of Rule 60(b)(5) at issue in Satterfield. The Lazzaris rely

on the first category for relief under Rule 60(b)(5), i.e., that the judgment

had been satisfied, which does not require proof that "new facts or new

law [has arisen] … rendering prospective application of the judgment

inequitable," id., and, instead, turns on whether, in fact, the judgment

has been satisfied. Thus, the Lazzaris were entitled to relief under Rule

60(b)(5) if they established that the August 2022 judgment had been

satisfied. However, even if the Lazzaris were seeking relief from the

August 2022 judgment on the ground that prospective application of that

judgment would be inequitable, we cannot conclude that the Lazzaris did

not establish new facts that would justify relief under Rule 60(b)(5).

Morris complains in his brief on appeal that the Lazzaris failed to

provide to the trial court any evidence establishing compliance with the

August 2022 judgment. Indeed, to be entitled to relief under Rule 60(b),

the Lazzaris were required to prove a ground under Rule 60(b) by

presenting evidence to support that ground. See Carney v. Carney, 92

So. 3d 70, 73 (Ala. Civ. App. 2011) (affirming the denial of a Rule 60(b)

motion because "the [movant] and his attorney failed to present any other

form of evidence to support the allegations contained in the Rule 60(b)

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motion"); Marsh v. Marsh, 338 So. 2d 422, 423 (Ala. Civ. App. 1976)

(stating that a "court [reviewing a ruling on a rule 60(b) motion] looks to

the grounds presented by the motion and matters presented in support

thereof"). Morris states that the only evidence before the trial court was

his affidavit testimony that the surface-water issues had not been

remedied. However, we are unable to determine from the record whether

the trial court lacked evidence from which it could have concluded that

the Lazzaris had complied with the August 2022 judgment.

The record reflects that the Lazzaris requested that the Rule

60(b)(5) motion be set for a hearing and that the trial court initially set

the Rule 60(b)(5) motion for a hearing to be held at a motion docket on

August 27, 2024, continued the hearing to the September 10, 2024,

motion docket, and continued the hearing a second time to the October 8,

2024, motion docket. Morris had initially sought a continuance of the

Rule 60(b)(5) hearing and an order permitting him to enter the Lazzaris'

property so that he could gather information and evidence regarding

whether the Lazzaris had taken action to rectify the surface-water issues

and, thus, whether they had complied with or satisfied the requirements

of the August 2022 judgment. In fact, on October 21, 2024, after the date

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set for the hearing, Morris filed a proposed order, which the trial court

did not adopt, that would have continued the evidentiary hearing and

permitted Morris to enter the Lazzaris' property. That proposed order

could be read to indicate that a hearing was, in fact, conducted on some

date before October 21, 2024. In his postjudgment motion, Morris

specifically requested an evidentiary hearing so that the trial court could

"actually hear the real evidence," perhaps suggesting that no evidence

was taken at the October 8, 2024, hearing or, at least, suggesting that

the trial court had not heard all the evidence on the issue; the latter

reading of the motion is supported by Morris's request that he be

permitted to enter the Lazzaris' property to gather evidence to refute

their claim.

Morris, as the appellant, had the burden of providing this court the

necessary information in the record to establish error on the part of the

trial court. See Parker v. Williams, 977 So. 2d 476, 481-82 (Ala. 2007).

"The law is settled that it is the appellant's duty to
ensure that the appellate court has a record from which it can
conduct a review. Cooper & Co. [v. Lester, 832 So. 2d 628 (Ala.
2000)]; [Alfa Mut. Gen. Ins. Co. v.] Oglesby, [711 So. 2d 938
(Ala. 1997)]; and Gotlieb v. Collat, 567 So. 2d 1302 (Ala. 1990).
Further, in the absence of evidence in the record, this Court
will not assume error on the part of the trial court. Browning
v. Carpenter, 596 So. 2d 906 (Ala. 1992); Smith v. Smith, 596

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So. 2d 1 (Ala. 1992); Totten v. Lighting & Supply, Inc., 507 So.
2d 502 (Ala. 1987)."

Zaden v. Elkus, 881 So. 2d 993, 1009 (Ala. 2003). Our supreme court has

explained that " '[a] reviewing court cannot predicate error on matters

not shown by the record. ... Indeed, a silent record supports a judgment.

... It is the appellant's duty to file a correct record. ' " Ex parte Howell,

974 So. 2d 304, 306 (Ala. 2007) (quoting Robinson v. State, 444 So. 2d

884, 885 (Ala. 1983)); see also Alexander v. GEICO Ins. Cos., 47 So. 3d

1225, 1229-30 (Ala. 2010). In addition, "[a]ppellate courts are 'prisoners

of the record and occurrences in chambers and off the record are outside

[the court's] purview unless the trial court or attorneys made certain that

[the court] is pr ivy to them.' " Empiregas, Inc. of Ardmore v. Hardy, 487

So. 2d 244, 251 (Ala. 1985) (quoting Stephens v. Central of Georgia R.R.,

367 So. 2d 192, 194 (Ala . 1978)).

" 'An appellate court does not presume error.' Greer v. Greer, 624

So. 2d 1076, 1077 (Ala. Civ. App. 1993). 'We presume that trial court

judges know and follow the law.' Ex parte Atchley, 936 So. 2d 513, 516

(Ala. 2006)." Anderson v. Anderson, 199 So. 3d 66, 69 (Ala. Civ. App.

2015). "When an issue is presented to the trial court, … the trial court is

presumed to know and apply the law with respect to that issue." Brewer

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v. Hatcher Limousine Serv., Inc., 708 So. 2d 163, 166 (Ala. Civ. App.

1997). " ' "A trial judge's actions are presumptively correct in the absence

of a showing to th e contrary." ' " Francis Powell Enters., Inc. v. Andrews,

21 So. 3d 726, 739 (Ala. Civ. App. 2009) (quoting Carter v. State, 627 So.

2d 1027, 1028 (Ala. Crim. App. 1992), quoting in turn Ex parte Atchley,

936 So. 2d at 516); Coastal Realty & Mortg., Inc. v. First Alabama Bank,

N.A., 424 So. 2d 1315, 1316-17 (Ala. Civ. App.1982) (applying the above-

discussed principles and affirming an attorney-fee judgment because

"[t]he record before us in this case does not support Coastal's claim that

the trial court erred by failing to hold a hearing to determine the

reasonableness of the attorneys' fees" and because "there is nothing in

the record to indicate that Coastal did not have an opportunity to make

arguments of counsel, present evidence, or arrange for the reporting of

the proceedings"). Put another way, "[a]ll lawful presumptions are

entertained by [an appellate] court that the trial court acted correctly,

unless the contrary is made to appear from the record. We are unable to

consider that which the record does not proffer." Johnson v. Fishbein,

267 So. 2d 405, 410, 289 Ala. 328, 334 (1972).

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Morris did not order and has not provided this court with a

transcript of the October 8, 2024, hearing. Nor has he provided a

statement of the proceedings pursuant to Rule 10(d), Ala. R. App. P., in

which he could have outlined the procedure followed at the hearing and

established, as he contends in his brief, that the trial court did not take

evidence. In situations when this court is not presented with a transcript

or, in lieu of a transcript, a statement of the evidence or a statement of

the proceedings indicating what transpired at a hearing, we have

indicated that we cannot speculate regarding what transpired at the

hearing. See Dais v. State ex rel. Davis, 420 So. 2d 278, 279 (Ala. Civ.

App. 1982) (affirming a judgment and stating that, "[a]s indicated, the

record before this court consists only of the clerk's record. Quite frankly,

in view of what this court has before it, we cannot tell what transpired in

the trial court regarding the alleged errors. There is, simply stated, no

evidence upon which to predicate the alleged errors."); Liberty Loan

Corp. of Gadsden v. Williams, 406 So. 2d 988, 989 (Ala. Civ. App. 1981)

(applying the principles that "[e]rrors, if any, committed below must be

affirmatively demonstrated by the record before the Court of Civil

Appeals" and that, "[i]f the record does not disclose the facts upon which

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the alleged error is based, such error may not be considered on appeal" to

affirm a judgment because "[t]he state of the record is such that this court

cannot determine what theory the case was tried on, what proof was

offered, or even what facts were heard or considered by the trial court");

Ex parte Pruitt, 275 So. 3d 1148, 1153 (Ala. Civ. App. 2018) (denying

relief to a petitioner and stating that, although the petitioner challenged

a pendente lite grandparent-visitation order based on his contention that

the trial court had failed to take evidence before awarding that visitation,

this court had "no way of knowing what transpired during that hearing"

and could not know whether the parties had been denied the opportunity

to present evidence); see also Ex parte A.H.R., 404 So. 3d 277 (Ala. Civ.

App. 2024); and Ex parte Dumas, 259 So. 3d 669 (Ala. Civ. App. 2018).

Quite simply, we have no way to determine from the record before us that

the trial court took no evidence at the October 8, 2024, hearing.

We reiterate that this court cannot presume error on the part of the

trial court, see Greer, 624 So. 2d at 1077; in fact, we presume that the

trial court was aware of the governing law and that the trial court applied

that law correctly in entering the judgment unless the record

demonstrates that the trial court did not do so. See Brewer, 708 So. 2d

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at 166; Francis Powell Enters., 21 So. 3d at 739. We certainly cannot

presume from a silent record that the trial court entered a judgment in

favor of the Lazzaris without holding the hearing that had been set on

their Rule 60(b)(5) motion and without having taken any evidence

regarding their compliance with the August 2022 judgment. Instead, we

presume that the trial court correctly applied the law regarding Rule

60(b)(5) and that the trial court conducted an evidentiary hearing on that

motion so that the Lazzaris could establish their compliance with the

August 2022 judgment. Accordingly, we are constrained to affirm the

trial court's order granting the Rule 60(b)(5) motion filed by the Lazzaris.

Morris's final issue on appeal is "whether [his] due[-]process right

to seek enforcement of the [August 2022] judgment has been wrongfully

abrogated." Morris states in his brief that he intends to file a contempt

action against the Lazzaris to compel their compliance with the August

2022 judgment and that he fears that the doctrine of res judicata will bar

his contempt claim. He is correct. As noted above, the entry of the order

granting the Rule 60(b)(5) motion resulted in the trial court's setting

aside or vacating the August 2022 judgment based on that judgment

having been satisfied. Thus, the August 2022 judgment is no longer

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extant, and, in light of the entry of the order granting the Rule 60(b)(5)

motion, has been deemed satisfied. As a result, Morris has no basis for a

contempt action. Because we are affirming the trial court's October 30,

2024, order granting the Rule 60(b)(5) motion based on Morris's failure

to present a record supporting his arguments for reversal, we have

necessarily determined that Morris received the process that he was due

during the proceedings on the Rule 60(b)(5) motion, and we have no basis

on which to find that his due-process rights have been "wrongfully

abrogated."

Having considered and rejected the arguments presented in

Morris's brief on appeal, we affirm the October 30, 2024, order granting

the Rule 60(b)(5) motion and declaring that the August 2022 judgment

had been satisfied.

AFFIRMED.

Hanson and Fridy, JJ., concur.

Moore, P.J., concurs specially, with opinion.

Bowden, J., dissents, with opinion.

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MOORE, Presiding Judge, concurring specially.

On August 19, 2022, the Baldwin Circuit Court ("the trial court")

entered a permanent injunction requiring Celeste R. Lazzari and

Cynthia Lazzari ("the Lazzaris") "to capture or prevent runoff water from

flowing ... from their property" onto property owned by Billy Ray Morris

and Wes Morris. The trial court retained continuing jurisdiction over the

permanent injunction to consider enforcing, modifying, staying, or

terminating it. See Ross v. Luton, 456 So. 2d 249, 258 (Ala. 1984). The

Lazzaris properly invoked that jurisdiction by filing a "Motion of

Compliance With the Court's Order," seeking the dissolution of the

injunction. In the motion, the Lazzaris asserted that the injunction

should be dissolved because the purpose of the injunction had been

satisfied by their corrective actions in preventing water from running off

their property onto the property of Billy Ray Morris and Wes Morris. The

motion can be construed either as a motion to dissolve the permanent

injunction, see Petroleum Equip. Tool Co. v. State Bd. of Health, 575 So.

2d 587, 589 (Ala. Civ. App. 1991), or as a Rule 60(b)(5), Ala. R. Civ. P.,

motion for relief from the judgment based on its satisfaction. See, e.g.,

Great Woods, Inc. v. Clemmey, 89 Mass. App. Ct. 788, 789, 55 N.E.3d

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425, 426 (2016). In either case, the Lazzaris would have the burden of

proving that, by reason of changed circumstances, the grounds and

reasons for which the permanent injunction had been granted no longer

existed. See Petroleum Equip. Tool Co., supra; Clemmey, supra.

The record shows that the trial court set the motion for a hearing

for October 8, 2024, and that, on October 30, 2024, the trial court entered

an order granting the motion. Billy Ray Morris, the sole surviving

beneficiary of the permanent injunction, appeals, arguing, among other

things, that the trial court did not conduct an evidentiary hearing before

entering its order granting the motion. However, as the main opinion

concludes, Morris did not provide this court with a transcript of the

October 8 hearing or a statement of the proceedings pursuant to Rule

10(d), Ala. R. App. P., so we cannot know what occurred at that hearing.

See Ex parte Pruitt, 275 So. 3d 1148 (Ala. Civ. App. 2018). We do not

know whether the trial court received evidence to support its ruling,

whether the parties stipulated that the case could be decided without

receiving evidence, see N.G. v. Blount Cnty. Dep't of Hum. Res., 216 So.

3d 1227, 1236 (Ala. Civ. App. 2016), or whether the trial court refused to

consider any evidence over Morris's objection. The trial court would have

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committed legal error only in the last circumstance. See Guillot v. State,

543 So. 2d 695 (Ala. 1989)(holding that a trial court errs by entering a

permanent injunction without a requested evidentiary hearing). I concur

with the main opinion that, in the absence of a complete record, we must

presume that the trial court acted properly and that it did not

erroneously deny Morris an evidentiary hearing. See Francis Powell

Enters., Inc. v. Andrews, 21 So. 3d 726, 739 (Ala. Civ. App. 2009).

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BOWDEN, Judge, dissenting.

I respectfully dissent from the decision of the main opinion to affirm

the October 30, 2024, judgment of the Baldwin Circuit Court ("the trial

court") in favor of Celeste R. Lazzari and Cynthia Lazzari and against

Billy Ray Morris.

The main opinion states that Morris has not provided this court

with a transcript of the October 8, 2024, hearing 4 or provided a statement

of the proceedings pursuant to Rule 10(d), Ala. R. App. P., and that,

therefore, "[q]uite simply, we have no way to determine from the record

before us that the trial court took no evidence at the October 8, 2024,

hearing." ___ So. 3d at ___. The main opinion concludes that, because we

do not know what happened at the hearing, we must presume that the

trial court properly applied the law and presume that its judgment is

correct. ___ So. 3d at ___ ("We presume that the trial court correctly

4As discussed, infra, the record does not support a conclusion that

a hearing took place on October 8, 2024; however, Morris does not
specifically assert that argument on appeal as a basis for reversing the
trial court's judgment. Accordingly, like the main opinion, I assume,
without evidence, that a hearing took place before the trial court issued
its October 30, 2024, judgment, and I refer to that hearing as the "October
8, 2024, hearing."
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applied the law regarding Rule 60(b)(5) and that the trial court conducted

an evidentiary hearing on that motion ….").

I agree that we do not assume error on the part of the trial court,

but we also do not, as the main opinion proposes, apply a presumption of

correctness to a trial court's judgment in all circumstances, especially not

in its application of the law. Compare ___ So. 3d at ___ ("We presume that

the trial court correctly applied the law ….") ("[I]n fact, we presume that

the trial court … applied [the governing] law correctly in entering the

judgment ….") with Espinosa v. Chamblin, 390 So. 3d 542, 543 (Ala.

2023)(" '[W]here … the controversy involves questions of law for the court

to consider, the court's judgment carries no presumption of

correctness,' "), and Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379 (Ala.

1996)("[W]here the facts before the trial court are essentially undisputed

and the controversy involves questions of law for the court to consider,

the court's judgment carries no presumption of correctness."). Nor do we

apply a presumption of correctness to the trial court's judgment in this

circumstance, when the record does not affirmatively indicate that the

trial court heard oral testimony that is not before this court on appeal.

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Instead, by applying a presumption of correctness to the trial

court's judgment -- when there is no affirmative evidence indicating that

the trial court heard evidence that is not before this court on appeal -- the

main opinion's reasoning is in conflict with well-settled precedents from

this court and our supreme court regarding the effect of a failure to file a

Rule 10(d), Ala. R. App. P., statement or a transcript of a hearing.

According to those precedents, discussed infra, we presume that a trial

court heard sufficient evidence to support its judgment when the record

affirmatively demonstrates that the trial court heard oral testimony at a

hearing for which there is no transcript or Rule 10(d) statement.

Because the record in this case does not affirmatively demonstrate

that the trial court accepted oral testimony that is not before this court

on appeal, we cannot presume that the trial court accepted sufficient

evidence to support its judgment at the October 8, 2024, hearing. We

must therefore apply the de novo standard of review to the trial court's

judgment, see Phillips v. Knight, 559 So. 2d 564 (Ala. 1990)(applying de

novo standard of review in the absence of affirmative evidence indicating

that trial court received oral testimony at a hearing for which there was

no Rule 10(d) statement or transcript). And based on the application of

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that standard of review, the record is insufficient to support the trial

court's judgment granting of the Lazzaris' "Rule 60(b)(5) motion."

Before the promulgation of Rule 10, Ala. R. App. P., we presumed

that a trial court's judgment was correct if it affirmatively appeared that

the trial court had received evidence that was omitted from the record on

appeal. See Melton v. Melton, 288 Ala. 452, 458, 261 So. 2d 887, 893

(1972)(" 'Where it is apparent from the record that the trial court had

before it evidence omitted from the record, it will be conclusively

presumed that such evidence would sustain the trial court's findings.' "

(emphasis added; citation omitted)); Davis v. City Fed. Sav. & Loan Ass'n,

288 Ala. 236, 237, 259 So. 2d 262, 264 (1972)("The rule is that where it is

apparent from the record that the trial court had before it certain

material documentary evidence which was not set out in the record, it

will be conclusively presumed on appeal that evidence omitted from the

record but heard by the court will sustain the judgment." (emphasis

added)). After the promulgation of Rule 10, however, we recognized that

Rule 10 had superseded the presumption-of-correctness principle

described in Melton and Davis. See Adams v. Adams, 335 So. 2d 174, 177

(Ala. Civ. App. 1976). In Adams, this court reasoned that because Rule

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10 allows both the appellant and the appellee to designate what evidence

appears in the record on appeal, an "appellee can no longer rely solely on

the omission to gain affirmance"; instead, the appellee must also

"designate for inclusion in the record whatever else is available to help

his case." 335 So. 2d at 177; see also Committee Comments to Rule 10,

Ala. R. App. P. ("Subdivisions (a) and (b) [of Rule 10, Ala. R. App. P.,]

permit the parties to designate those matters in the clerk's record and in

the transcript of evidence which are to be included with the record. …

Since each party has the option to include such matters as he deems

relevant and appropriate, [Rule 10] will abolish the existing presumption

that if there is an omission from the record of any matter essential to a

decision of any question presented on appeal, the ruling of the trial court

will be deemed correct. Thus such cases as Melton v. Melton, 288 Ala.

452, 261 So. 2d 887 [(1972)] and Davis v. City Federal Savings & Loan

Association, 288 Ala. 236, 259 So. 2d 262 [(1972),] are superseded."

(emphasis added)).

The Adams court recognized, however, that, although Rule 10

allows the appellant and the appellee to designate what evidence should

appear in the record, Rule 10(d) allows only the appellant to submit a

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statement of the evidence. Thus, the Adams court noted, an appellate

court should continue to apply a presumption of correctness to a trial

court's judgment when (1) the record affirmatively demonstrates that

there was oral testimony before the trial court that is not before this court

on appeal and (2) the appellant has failed to file a Rule 10(d) statement.

335 So. 2d at 177. The Adams court stated: "Where, as here, it

affirmatively appears that oral testimony was considered by the trial

court in reaching its decision, and this testimony is not present in the

record either as a transcript or as a Rule 10(d) summary, it continues to

be conclusively presumed that the testimony is sufficient to support

affirmance." Id.

Our precedent and the precedent of our supreme court since Adams

have continued to demonstrate that an appellate court will apply a

presumption of correctness to a trial court's judgment when (1) the record

affirmatively demonstrates that the trial court received oral testimony

not in the record and (2) the appellant failed to file a Rule 10(d) statement

concerning the hearing at which that evidence was received. See, e.g.,

Owens v. Wallace, 336 So. 2d 191, 193-94 (Ala. Civ. App. 1976) ("It …

appears that evidence was taken before the trial court. Such evidence is

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not included in the record before this court. We are informed that the

testimony was not transcribed. We call to the attention of those

interested this court's discussion of the relationship between Rule 10,

[Ala. R. App. P.], and the well settled principle of law that the trial court's

finding and conclusions on the facts will not be reviewed when it

affirmatively appears there was evidence before the trial court that is not

in the record on appeal. This discussion may be found in Adams v. Adams,

Ala. App., 335 So. 2d 174 released by this court on June 30, 1976. Our

conclusions in Adams, supra, would to this court require affirmance of

the instant appeal."); Bateman v. Lee, [Ms. SC-2024-0757, Aug. 29, 2025]

___ So. 3d ___, ___ (Ala. 2025)(applying a presumption of correctness to

probate court's judgment because the probate court "conducted a hearing

at which [the appellant] testified" and explaining that " '[t]he rule is that

where no testimony is contained in the record on appeal, a decree which

recites that it was granted on pleadings, proofs and testimony will not be

disturbed on appeal. And it will be presumed that the evidence was

sufficient to sustain the verdict, finding, judgment, or decree where all

the evidence is not in the record.' " (quoting Davis v. Davis, 278 Ala. 328,

330, 178 So. 2d 154, 155 (1965)(internal citations omitted)); Cockrell v.

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Cockrell, 40 So. 3d 712, 717 (Ala. Civ. App. 2009)("[W]hen, as in this case,

' "oral testimony is considered by the trial court in reaching its judgment

and that testimony is not present in the record as either a transcript or

Rule 10(d), [Ala]. R. [App]. P., statement, it must be conclusively

presumed that the testimony [was] sufficient to support the judgment." ' "

(quoting Quick v. Burton, 960 So. 2d 678, 680 (Ala. Civ. App. 2006)));

Island Girl Outfitters, LLC v. Allied Dev. of Alabama, LLC, [Ms. SC-

2023-0561, Mar. 21, 2025] ___ So. 3d ___, ___ (Ala. 2025) (affirming trial

court's damages calculation when trial court had held damages hearing

"at which the trial court appear[ed] to have heard live testimony" but

appellants did not provide a transcript of the hearing or a Rule 10(d)

statement); Construction Servs. Grp., LLC v. MS Elec., LLC, 292 So. 3d

643, 649 (Ala. Civ. App. 2019)("[B]ecause the oral testimony heard by the

trial court is not present in the record as either a transcript or a Rule

10(d)[, Ala. R. App. P.,] statement, we must conclusively presume that

the testimony was sufficient to support the judgment; therefore, we

cannot reverse the trial court's judgment with respect to MS Electric's

unjust-enrichment claim based on Construction Services' insufficiency-

of-the-evidence arguments." (internal citation omitted)).

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Phillips v. Knight, 559 So. 2d 564 (Ala. 1990), another post-Adams

decision, illustrates that we do not apply a presumption of correctness to

a trial court's judgment merely because an appellant failed to file a Rule

10(d) statement regarding a proceeding for which there is no transcript;

instead, there must be affirmative evidence indicating that the trial court

received oral testimony before we apply a presumption of correctness.

In Phillips, the Walker Circuit Court held a hearing on Jimmy Knight's

motion to enforce a settlement agreement. After the hearing, the Walker

Circuit Court granted Knight's motion to enforce the settlement

agreement, "basing its order on the evidence submitted at the hearing on

the motion." Knight, 559 So. 2d at 565. The evidence submitted at the

hearing consisted of " 'facts as stipulated and agreed upon by the

parties.' " Id. Knight argued, similar to the reasoning of the main opinion

and the Lazzaris, that because there was no transcript and no Rule 10(d)

statement, "the facts as found by the trial court must be 'conclusively

presumed' sufficient to support the judgment." Id. at 567. ("Knight also

asserts that Phillips filed no statement as allowed by [Ala. R.] App. P.

10(d). He argues that because there is no Rule 10(d) summary, the facts

as found by the trial court must be 'conclusively presumed' sufficient to

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support the judgment."). The Phillips court rejected that argument. Id. at

568 ("A review of the authority cited by Knight persuades us that his

argument is misplaced."). The Phillips court noted that "Rule 10[, Ala. R.

App. P.,] imposes no absolute requirement that the appellant file such a

statement, even though the burden is on the appellant if one is to be

filed." Id. at 567. It noted that the standard from Adams, supra, is that it

must "affirmatively appear[] that oral testimony was considered by [a]

trial court in reaching its decision" before an appellate court may

conclusively presume that that trial court received evidence sufficient to

support its judgment. Id. at 568. The Phillips court therefore declined to

presume that the trial court had heard evidence sufficient to support its

judgment, even though Phillips had failed to file a Rule 10(d) statement,

because "[t]here was no oral testimony presented to the trial court." Id.

Morris points out the principle from Adams in his reply brief, citing

Owens, supra. 5 He argues that "[the Lazzaris] cannot cite to anywhere in

5Although Morris's argument based on Owens v. Wallace, 336 So.

2d 191 (Ala. Civ. App. 1976), appears for the first time in his reply brief,
Morris's reply brief was his first opportunity to respond to the Lazzaris'
proffered alternative basis for affirming the trial court's judgment, i.e.,
that this court must presume that the trial court heard sufficient
evidence to support its judgment because Morris did not file a Rule 10(d),
Ala. R. App. P., statement. Thus, we may properly consider Morris's
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the record where it 'affirmatively appears' there was any evidence

presented showing compliance with the judgment." Morris's reply brief,

p. 13. Thus, Morris argues, this court should not apply a presumption of

correctness to the trial court's judgment.

Morris is correct. Unlike the record in the numerous cases cited

above, the record in this case does not affirmatively demonstrate that the

trial court heard oral testimony that is not before this court on appeal. In

fact, there is so little evidence in the record about the October 8, 2024,

hearing that we cannot be certain -- based on the record on appeal -- that

a hearing even took place on October 8, 2024. The only mention of a

hearing on October 8, 2024, comes from an entry on the case-action-

summary sheet dated September 9, 2024, which indicates that a hearing

was scheduled for October 8, 2024. But no entry dated October 8, 2024,

appears on the case-action-summary sheet, no party references the

existence of a hearing on October 8, 2024, in any filing before the trial

argument, despite its first appearance in his reply brief. See Berry v.
PHH Mortg. Corp., 388 So. 3d 643, 646 n.2 (Ala. 2023)("Although a reply
brief is not required in every case, see Rule 28(c), Ala. R. App. P., that
does not mean that a reply brief is not necessary in situations in which it
is the only vehicle for rebutting an alternative basis for affirmance that
is raised in the appellee's brief.").

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court, and there is no order from the trial court referencing a hearing

held on that date.6

Considering that we cannot even determine from the record that a

hearing took place, the record clearly does not affirmatively demonstrate

that the trial court heard oral testimony that is not before this court on

appeal. Thus, we cannot apply the presumption-of-correctness rule

outlined in Adams and its progeny. Instead, we are constrained to assess

this case based on the evidence in the record that was before the trial

court, as indicated by the record on appeal.

I acknowledge, like the main opinion, that " 'it is the appellant's

duty to ensure that the appellate court has a record from which it can

conduct a review.' " __ So. 3d at ___ (quoting Zaden v. Elkus, 881 So. 2d

993, 1009 (Ala. 2003)). But Morris has not failed in that duty here. There

6The main opinion cites Morris's proposed order -- which the trial

court did not rely upon -- as evidence that a hearing occurred before
October 30, 2024. Of course, the filing of a proposed order -- which can be
done at any time, before or after a hearing -- is not evidence indicating
that a hearing occurred. But even if it were, Morris's proposed order
notes that the court's order would come "after hearing arguments" at a
hearing and requests an "evidentiary hearing" "in ninety (90) days." The
proposed order, to the extent that it is relevant at all, is clearly evidence
indicating that the trial court did not receive evidence that is not before
this court on appeal at the October 8, 2024, hearing.
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is no evidence indicating that the record he prepared lacks evidence that

was considered by the trial court and is not before this court. Neither

Rule 10(d) nor our precedent requires Morris to rule out every possible

venue at which the trial court could have received evidence in order to

avoid the application of a presumption of correctness to the trial court's

judgment.

I am also concerned about the effect of this court's opinion on future

decisions. Rule 10(d) is not mandatory with respect to every hearing at

which a court reporter is not present. Phillips, 559 So. 2d at 567. But

requiring an appellant to provide a Rule 10(d) statement in this case,

when there is no affirmative evidence indicating that the trial court

heard evidence not in the record on appeal, threatens to effectively make

it so. After all, a savvy appellee could point to every unrecorded motion

hearing as a hearing at which the trial court potentially heard evidence

sufficient to support an ensuing judgment, regardless of whether the

record affirmatively indicates that the trial court heard oral testimony at

that hearing. Our precedents expressly hold that a Rule 10(d) statement

is not mandatory, and we should not set the table for such a requirement

with our holding in this case.

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The main opinion states that "when this court is not presented with

a transcript or, in lieu of a transcript, a statement of the evidence or a

statement of the proceedings indicating what transpired at a hearing, …

we cannot speculate regarding what transpired at the hearing." ___ So.

3d at ___. In support of that proposition, however, the main opinion cites

a string of cases from decisions concerning petitions for a writ of

mandamus. See ___ So. 3d at ___ (citing Ex parte Pruitt, 275 So. 3d 1148

(Ala. Civ. App. 2018); Ex parte A.H.R., 404 So. 3d 277 (Ala. Civ. App.

2024); and Ex parte Dumas, 259 So. 3d 669 (Ala. Civ. App. 2018)). Those

cases concern appellate review of a petition for the writ of mandamus,

which is governed by Rule 21, Ala. R. App. P.; this is a case involving an

appeal, which is governed by Rule 10 ("the record on appeal"), and

concerns the application of a presumption of correctness after a failure to

file a Rule 10(d) statement.

Morris has presented us with " 'a record from which [we] can

conduct a review,' " ___ So. 3d at ___ (quoting Zaden v. Elkus, 881 So. 2d

993, 1009 (Ala. 2003)), and that record does not affirmatively indicate

that the trial court heard evidence that is not before this court. Thus, we

may not presume that the trial court heard sufficient evidence at the

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October 8, 2024, hearing to support its judgment, and we are free to

assess Morris's sufficiency-of-the-evidence argument based on the

evidence in the record on appeal.

What does the record on appeal indicate was the evidence before

the trial court? As Morris argues, the record on appeal indicates that the

only evidence before the trial court when it considered the Lazzaris' "Rule

60(b)(5) motion" was Morris's affidavit. And that evidence, as Morris also

argues, is not sufficient evidence to support the judgment granting the

Rule 60(b)(5) motion.

"An order either granting or denying relief under Rule
60(b)(5) or (6)[, Ala. R. Civ. P.,] is within the discretion of the
trial court, and its decision will not be reversed absent an
abuse of that discretion. Pollard v. Etowah County Comm'n,
539 So. 2d 225 (Ala. 1989). Rule 60(b)(5) applies only when
'new facts or new law arises after the original judgment is
entered, rendering prospective application of the judgment
inequitable.' Id. at 228; Satterfield [v. Winston Indus., Inc.,
553 So. 2d 61, 63 (Ala. 1989)]."

Anderson v. Anderson, 686 So. 2d 320, 323 (Ala. Civ. App. 1996) (holding

that, "as required by Rule 60(b)(5), new facts had arisen" that rendered

enforcement of a default judgment inequitable).

The Lazzaris did not present sufficient evidence indicating that

they had satisfied the requirements of the August 2022 judgment or that

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its permanent injunction should be dissolved. The August 2022 judgment

states, in pertinent part:

"1. The Court finds in favor of the [Morrises] …. The
[Lazzaris] are permanently enjoined from altering the natural
flow of water over and across their property and into Fish
River by redirecting the same onto the [Morrises'] property.

"2. The [Lazzaris] are Ordered to immediately take all
necessary steps … to capture or prevent runoff water from
flowing onto the [Morrises'] property from the [Lazzaris']
property.

"….

"4. The Court awards the [Morrises] $2,500.00 for lost
rental income."

Dissolving a permanent injunction requires evidence of changed

circumstances or conditions or evidence of a change in the law. Wilkinson

v. State ex rel. Morgan, 396 So. 2d 86, 89 (Ala. 1981). In Wilkinson, the

Alabama Supreme Court stated:

"The rule allowing the modification or dissolution of
injunctions is recognized in most jurisdictions, viz.:

" 'Where the grounds and reasons for which
the injunction was granted no longer exist, by
reason of changed conditions, it may be necessary
to alter the decree to adapt it to such changed
conditions, or to set it aside altogether, as where
there is a change in the controlling facts on which
the injunction rests, or where the applicable law,
common or statutory, has in the meantime been

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changed, modified, or extended. Such change in
the law does not deprive the complainant of any
vested right in the injunction, because no such
vested right exists.'

"42 Am. Jur. 2d, Injunctions, [§] 334 (1969) …."

396 So. 2d at 89 (emphasis omitted).

Morris's affidavit does not provide evidence indicating that the

Lazzaris had complied with the August 2022 judgment. It does not

indicate that the Lazzaris had taken actions to prevent runoff water from

flowing onto Morris's property or that the Lazzaris had paid Morris

$2,500 for lost rental income. It also does not provide evidence of changed

circumstances or conditions necessary to dissolve the permanent

injunction.

Conclusion

The main opinion improperly refuses to consider Morris's

sufficiency-of-the-evidence argument, because there is no affirmative

evidence in the record indicating that the trial court received evidence

that is not before this court on appeal. When considering Morris's

sufficiency-of-the-evidence argument, it is clear that the October 30,

2024, judgment was entered without sufficient evidence. I therefore

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respectfully dissent from this court's decision to affirm the judgment of

the trial court.

39