Island Girl Outfitters, LLC, and Anthony S. Carver v. Allied Development of Alabama, LLC (Appeal from Baldwin Circuit Court: CV-22-900259).

Rel: March 21, 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,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

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SC-2023-0561
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Island Girl Outfitters, LLC, and Anthony S. Carver

v.

Allied Development of Alabama, LLC

Appeal from Baldwin Circuit Court
(CV-22-900259)

MITCHELL, Justice.

Allied Development of Alabama, LLC, owns Eastern Shore Centre,

an outdoor shopping mall in Spanish Fort. Island Girl Outfitters, LLC
SC-2023-0561

("IGO"), operated a store there known as Hippie Gurlz, but closed it after

the first year of its five-year lease. Allied Development then filed a

complaint in the Baldwin Circuit Court, seeking rent and other damages

that were due under the lease. The trial court ultimately entered a

$94,350 judgment in favor of Allied Development and against IGO and

its owner, Anthony S. Carver, who had personally guaranteed IGO's

obligations under the lease. IGO and Carver appeal. We affirm.

Facts and Procedural History

In late 2020, IGO entered into a five-year lease with Allied

Development for a 2,100-square-foot storefront in Eastern Shore Centre.

Under the terms of the lease, IGO was obligated to pay Allied

Development a base monthly rent of $3,000 (with escalators at the

beginning of years two and four). Carver signed the lease on behalf of

IGO and executed a separate guaranty agreement requiring him to

personally make any payments that IGO failed to make.

IGO took possession of the leased storefront in January 2021 and

opened Hippie Gurlz, a store selling ladies' apparel and accessories, home

goods, and related products. But sales were slower than expected, and,

by the end of the year, IGO had decided to close the store. IGO vacated

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the premises at the end of January 2022. Shortly thereafter, another

tenant at Eastern Shore Centre moved its existing store to the former

Hippie Gurlz location.

IGO's lease provided that, if it vacated the premises, it would

immediately become liable for damages, including future rent owed

under the lease and expenses incurred by Allied Development in

connection with the default. Six weeks after Hippie Gurlz closed, Allied

Development filed a breach-of-contract action against IGO and Carver to

enforce that provision.

Allied Development later moved for summary judgment, arguing

that it was undisputed that IGO had breached the lease and that, under

the terms of the lease and the guaranty agreement, IGO and Carver owed

it $89,010 for rent, interest, costs, and fees. Allied Development

supported its motion with copies of the lease and the guaranty

agreement, along with an affidavit from its employee, Alton Hankins,

describing IGO's tenure at Eastern Shore Centre and stating the amount

it owed for the remainder of the lease term.

IGO and Carver opposed the summary-judgment motion. They first

argued that they had closed Hippie Gurlz only because Allied

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Development had failed to properly market and maintain Eastern Shore

Centre. Next, they argued that they should not be liable for any future

rent owed under the lease because Allied Development had relet the

former Hippie Gurlz storefront only a month after they vacated the

premises. Finally, they noted that Allied Development had not provided

an itemization of the $89,010 in damages it was claiming.

Allied Development then submitted another affidavit from Hankins

explaining that it had convinced an existing tenant to move into the

Hippie Gurlz storefront because it was a prominent location that Allied

Development did not want to remain vacant. But, Hankins noted, that

tenant's former location had remained vacant since the move. Hankins

further provided a more detailed explanation for the damages Allied

Development was claiming, which now totaled $146,910.

Following a hearing, the trial court granted Allied Development's

summary-judgment motion in part, holding that there were no genuine

issues of material fact as to IGO's and Carver's liability. The trial court

then set a damages hearing for the next month. A transcript of that

hearing is not in the record, but the trial court later entered a $94,350

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judgment in favor of Allied Development and against IGO and Carver.

They now appeal.

Standard of Review

On appeal, IGO and Carver challenge both the partial summary

judgment holding that IGO had breached its lease with Allied

Development and the final judgment entered after a hearing to

determine the damages owed Allied Development for that breach. As to

the liability determination, "our review is de novo." Nationwide Prop. &

Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). We

apply the same standard the trial court used; that is, we must determine

whether there is substantial evidence establishing the existence of a

genuine issue of material fact that must be resolved by a fact-finder. Id.

In conducting that review, we view the evidence in the light most

favorable to the nonmovant and entertain such reasonable inferences as

the jury would have been free to draw. Jefferson Cnty. Comm'n v. ECO

Pres. Servs., L.L.C., 788 So. 2d 121, 127 (Ala. 2000).

As to damages, we do not have a transcript of the damages hearing

before us. But both sides have indicated that the evidence considered by

the trial court at that hearing included live testimony. See IGO and

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Carver's postjudgment motion to alter, amend, or vacate judgment

(stating that the trial court held "a hearing on damages" at which it

"heard evidence of damages claimed by the plaintiff and against the

defendants for breach of a five-year commercial lease agreement");

appellate brief of Allied Development at 18 (stating that an "ore tenus

trial" was conducted). Therefore, we review the trial court's findings of

fact concerning its award of damages under the ore tenus rule, and the

judgment based on those findings will be reversed only if they are plainly

or palpably wrong or against the preponderance of the evidence. Water

Works & Sewer Bd. of Prichard v. Synovus Bank, [Ms. SC-2023-0881,

May 17, 2024] ___ So. 3d ___, ___ (Ala. 2024).

Analysis

IGO and Carver first argue that the trial court erred by entering a

partial summary judgment holding IGO liable for breach of its lease with

Allied Development. They argue that Allied Development could not

establish a breach-of-contract claim against them because, they say,

Allied Development failed to fulfill its own obligations to adequately

market and maintain Eastern Shore Centre. See, e.g., Beauchamp v.

Coastal Boat Storage, LLC, 4 So. 3d 443, 450 (Ala. 2008) (explaining that,

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" 'in order to establish that a defendant is liable for a breach of a bilateral

contract, a plaintiff must establish that he has performed … under the

contract' " (citation omitted)). IGO and Carver state that they submitted

evidence to the trial court showing that Allied Development made only

minimal efforts to advertise Eastern Shore Centre and that the mall was

generally unkempt and in a state of disrepair. Thus, they argue, there

were genuine issues of material fact about Allied Development's own

performance under the lease -- and, specifically, whether IGO breached

the lease -- that should have precluded the trial court from entering

summary judgment on the issue of liability.

The problem with IGO and Carver's position is that nowhere in

their brief have they identified anything that obligated Allied

Development to market or maintain Eastern Shore Centre in any specific

manner. "In order to secure a reversal, the appellant has an affirmative

duty of showing error upon the record." Certain Underwriters at Lloyd's,

London v. Southern Nat. Gas Co., 142 So. 3d 436, 464 (Ala. 2013).

"Furthermore, it is not the duty of the appellate court to search the record

for evidence to support an appellant's contention of error." Id. at 453.

Because IGO and Carver have not shown that Allied Development had a

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duty to market and maintain Eastern Shore Centre under the lease, we

cannot say that Allied Development breached the lease by marketing and

maintaining the mall in a manner that IGO and Carver found to be

unsatisfactory. Thus, the trial court's summary judgment on the issue of

liability is affirmed.

IGO and Carver next argue that the trial court's award of $94,350

in damages should be reversed because Allied Development relet the

former Hippie Gurlz storefront to another tenant only a month after

Hippie Gurlz closed. Acknowledging the lower rent that this new tenant

was obligated to pay under its lease, IGO and Carver argue that they

should be liable for no more than $18,900 in damages.

But it is impossible for us to determine whether IGO and Carver's

argument has any merit because we do not know the basis for the trial

court's damages calculation or the evidence the trial court considered

when making its decision. The trial court's judgment stated only: "Trial

conducted; judgment rendered for plaintiff in the amount of $94,350 plus

costs of court." And a transcript of the damages hearing -- at which the

trial court appears to have heard live testimony -- is not included in the

record.

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Under the ore tenus rule, when a trial court hears live testimony,

its findings of fact are presumed correct and the resulting judgment will

be reversed only if it is shown to be plainly or palpably wrong or against

the preponderance of the evidence. Water Works & Sewer Bd. of

Prichard, ___ So. 3d at ___. And an appellant cannot meet its burden of

making that showing when a transcript of the evidentiary hearing -- or,

if the transcript is unavailable, a "statement of the evidence" that

complies with Rule 10(d), Ala. R. App. P. -- is not included in the record

on appeal. As our Court of Civil Appeals has succinctly explained, when

" ' "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." ' "

Cockrell v. Cockrell, 40 So. 3d 712, 717 (Ala. Civ. App. 2009) (citations

omitted). In such instances, we must affirm a trial court's judgment and

have no need to address the merits of the appellant's underlying

arguments. Id. Accordingly, the trial court's damages calculation stands.

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Conclusion

The evidence submitted to the trial court on summary judgment

established that there were no genuine issues of material fact about

whether (1) IGO had breached its lease with Allied Development and (2)

whether Carver was liable for that breach under the terms of the

guaranty agreement he executed in conjunction with the lease. And IGO

and Carver have failed to show that the trial court's damages calculation

is unsupported by the evidence. For these reasons, the $94,350 judgment

in favor of Allied Development is affirmed.

AFFIRMED.

Stewart, C.J., and Shaw, Wise, Mendheim, Cook, and McCool, JJ.,

concur.

Bryan and Sellers, JJ., concur in the result.

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