Memorie Martinez, Just Kid'n Around, LLC, and Daphne Auction House, LLC v. Jubilee Gymnastics Academy, LLC (Appeal from Baldwin Circuit Court: CV-21-900358).

Rel: February 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, 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-2024-0625
_________________________

Memorie Martinez, Just Kid'n Around, LLC, and Daphne
Auction House, LLC

v.

Jubilee Gymnastics Academy, LLC

Appeal from Baldwin Circuit Court
(CV-21-900358)

FRIDY, Judge.

Memorie Martinez; Just Kid'n Around, LLC ("JKA"); and Daphne

Auction House, LLC ("DAH"), appeal from a judgment of the Baldwin

Circuit Court ("the circuit court") granting the summary-judgment

motion of Jubilee Gymnastics Academy, LLC ("Jubilee"), with respect to
CL-2024-0625

its ejectment claim against Martinez, JKA, and DAH; denying the

partial-summary-judgment motion of Martinez and JKA with respect to

some of their claims against Jubilee; and dismissing, with prejudice, all

the claims that Martinez and JKA had asserted against Jubilee. For the

reasons discussed herein, we reverse the circuit court's judgment and

remand the cause for further proceedings consistent with this opinion.

Background

On April 5, 2021, Jubilee commenced an action in the circuit court

in which it stated a claim of ejectment and a claim of unlawful detainer

against Martinez and DAH. Jubilee's complaint alleged that it owned

title to a specified parcel of land improved with a building ("the property")

that was located on Equity Drive in Daphne; that Martinez and DAH

were occupying the property pursuant to a month-to-month lease; that,

on January 11, 2021, and, on January 29, 2021, Jubilee had sent

Martinez and DAH written notice by certified mail informing them that

Jubilee would be terminating their month-to-month lease in thirty days;

that more than thirty days had elapsed since Martinez and DAH had

received Jubilee's written notice of termination; and that Martinez and

DAH had refused to surrender possession of the property. As relief,

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Jubilee sought possession of the property and the recovery of its

attorney's fees and court costs.

On May 10, 2021, Martinez and JKA 1 moved the circuit court to

dismiss Jubilee's unlawful-detainer claim on the ground that the circuit

court lacked subject-matter jurisdiction over that claim. That same day,

Jubilee amended its complaint to state a claim of ejectment only against

Martinez and DAH. On July 19, 2021, the circuit court entered an order

dismissing Jubilee's unlawful-detainer claim.

On June 11, 2021, Martinez and JKA answered Jubilee's complaint,

as amended, denying the material allegations of the complaint and

asserting several affirmative defenses. Their answer also pleaded

counterclaims against Jubilee. As the factual basis for their

counterclaims against Jubilee, Martinez and JKA alleged that, on May

1, 2012, Jubilee and JKA had entered into a commercial lease-purchase

agreement ("the lease-purchase agreement"); that, pursuant to the lease-

purchase agreement, Martinez and JKA had agreed to pay Jubilee

$2,407.61 per month, plus taxes and insurance for, the term of the lease-

1The record contains no indication that DAH ever possessed the

property.
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purchase agreement; that Martinez and JKA had taken possession of the

property pursuant to the lease-purchase agreement; that Martinez and

JKA had made 107 of the monthly payments required by the lease-

purchase agreement; and that Martinez and JKA had paid the taxes and

assessments on the property since they and Jubilee had entered into the

lease-purchase agreement. Based on those allegations, Martinez and

JKA stated a counterclaim against Jubilee seeking a declaration that the

lease-purchase agreement was in full force and effect and that Martinez

and JKA were entitled to remain in possession of the property. They also

stated counterclaims seeking damages based on theories of breach of

contract, fraudulent misrepresentation, and unjust enrichment.

Martinez and JKA demanded a jury trial regarding all issues in the

action. On August 16, 2021, Jubilee answered Martinez and JKA's

counterclaims; Jubilee denied the material allegations of Martinez and

JKA's counterclaims and asserted, among other affirmative defenses, §

8-9-2, Ala. Code 1975, ("the Statute of Frauds").

On October 13, 2021, Jubilee commenced an unlawful-detainer

action against Martinez and DAH2 in the Baldwin District Court ("the

2See n.1, supra.

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district court"), seeking possession of the property. Following a trial, the

district court, on December 13, 2021, entered a judgment in favor of

Martinez and DAH. On December 16, 2021, Jubilee appealed from the

district court's judgment to the circuit court. The parties then filed a joint

motion asking the circuit court to consolidate Jubilee's appeal from the

district court's judgment with Jubilee's ejectment action in the circuit

court, and the circuit court granted that motion on May 4, 2022.

On January 26, 2023, Martinez and JKA amended their answer and

counterclaim to state additional counterclaims of fraudulent suppression,

deceit, and private nuisance against Jubilee. On April 26, 2023, Jubilee

answered the amended counterclaim of Martinez and JKA; Jubilee

denied the material allegations of the amended counterclaim and

asserted, among other affirmative defenses, the Statute of Frauds.

On August 23, 2023, Jubilee moved for a summary judgment with

respect to its ejectment claim against Martinez, JKA, and DAH. As the

factual basis of its motion, Jubilee asserted that Martinez and JKA were

occupying the property pursuant to an oral, month-to-month lease and

that Jubilee had terminated that lease by giving Martinez and JKA

thirty days' notice of the termination. Jubilee also asserted that the

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Statute of Frauds precluded Martinez and JKA from claiming a right to

possess the property based on the lease-purchase agreement because,

Jubilee said, it did not sign the lease-purchase agreement and because,

Jubilee said, Martinez's signature on the lease-purchase agreement was

not notarized. Jubilee's motion also asserted that, because Martinez and

JKA possessed the property based solely on an oral, month-to-month

lease that Jubilee had terminated, the circuit court should deny the

claims that Martinez and JKA had asserted against Jubilee. Jubilee

supported its summary-judgment motion with, among other things, the

depositions of George Tarlton, one of the members of Jubilee, the

deposition of Martinez, and some text messages between Tarlton and

Martinez during a period beginning in January 2015 and ending in

March 2021.

In his deposition, Tarlton testified that in 2001, he and Bradley T.

Sawyer formed Jubilee, with Tarlton and Sawyer designated as the sole

members. He said that, later in 2001, Jubilee purchased a parcel of

unimproved land on Equity Avenue in Daphne where it constructed a

building. That parcel of land and the building that Jubilee subsequently

constructed on it constitute the property at issue.

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Tarlton further testified that in 2007, Martinez, acting as the real-

estate agent of her sister, Melanie Wolfe, submitted a written offer by

Wolfe to purchase the property from Jubilee for $420,000. He said that

the offer provided that the sale was to be closed within twenty-four

months of the date Jubilee accepted the offer, that the deed to the

property was to name Wolfe or her assigns as the purchaser, and that

Wolfe was to pay rent in the amount of $4,000 per month until the closing

of the sale. According to Tarlton, Jubilee accepted Wolfe's offer effective

July 18, 2007, and, during the twenty-four-month period following

Jubilee's acceptance of Wolfe's offer, Martinez and Wolfe operated JKA,

a child daycare, on the property.

Tarlton testified that Wolfe had not closed her purchase of the

property within twenty-four months of July 18, 2007, and her offer to

purchase the property expired by its terms at the end of that twenty-four-

month period. According to Tarlton, when the twenty-four-month period

for Wolfe to close the purchase expired in 2009, Martinez asked Tarlton

to lease the property to her so that the daycare that she and Wolfe had

been operating on the property could continue to operate there, and

Tarlton agreed. He said that in August 2011, the Alabama Department

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of Human Resources suspended JKA's license to operate a daycare, and

JKA vacated the property.

Tarlton testified that Jubilee then leased the property to Wayne

Mercadal, who occupied the property for a brief period before defaulting

on his lease and abandoning the property. He said that after Mercadal

abandoned the property, Martinez, acting on her own behalf, asked

Tarlton to rent the property to her. Tarlton testified that he, on behalf of

Jubilee, and Martinez orally agreed that Martinez would rent the

property on a month-to-month basis. He said that the rent that Tarlton

and Martinez agreed to in the oral month-to-month lease was $2,400 per

month.

Tarlton testified that he believed that it was about January or

February 2012 when Martinez again took possession of the property.

Tarlton testified that he believed that it was in late April 2012 when

Martinez asked him about the possibility of purchasing the property.

Tarlton said that, as a result of Martinez's inquiry, he had employed an

attorney to draft a lease-purchase agreement. Tarlton said that he

received an initial written draft of the lease-purchase agreement, which,

he said, erroneously specified a purchase price of $350,000 instead of

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$420,000. Tarlton said that he did not remember any discussion with

Martinez about reducing the purchase price to $350,000 to give Martinez

a credit for the rent she had paid since 2007. Tarlton testified that he

gave the attorney the information for the lease-purchase agreement, but,

he said, the attorney erroneously omitted a provision for a downpayment

from the initial draft of the lease-purchase agreement. Tarlton said that

he had given Martinez a copy of the initial draft of the lease-purchase

agreement and that she had told him that she would have her attorney

review it and get back in touch with him. Tarlton said that he did not see

Martinez sign the initial draft of the lease-purchase agreement and that

he had no recollection of her signing it and handing it back to him. He

also testified that he has no recollection of Martinez printing out an

amortization schedule and attaching it to the draft of the lease-purchase

agreement. Tarlton said that he and Martinez had an oral agreement

that she would pay rent in the amount of $2,400 per month and would

pay the insurance and property taxes on the property when they became

due.

Tarlton testified that when the 2007 agreement with Wolfe expired

in 2009, Martinez began paying Jubilee $2,400 per month in rent. He

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said that the initial draft of the lease-purchase agreement specified a

term of twenty years and that, after he gave Martinez a copy of that

initial draft, she told him that her attorney had told her that she could

not sign it yet because, her attorney said, she first had to resolve a

dispute with Rivers Carlton, the other member of JKA. Tarlton testified

that Martinez ended that dispute in April 2015. He said that, his opinion,

the initial draft of the lease-purchase agreement that he gave Martinez

was not complete because it had omitted a provision for a downpayment.

Tarlton denied that he had ever received a signed copy of the initial draft

of the lease-purchase agreement that he had given Martinez. He said that

Jubilee's bank, which held a mortgage on the property, told Tarlton that

he could not sell the building while the bank had a mortgage on it

because, the bank said, it was not willing to subordinate its mortgage to

another mortgage.

In her deposition, Martinez contradicted Tarlton's testimony that

she had taken possession of the property before May 1, 2012, testifying

as follows:

"Q. Let's see. So, you say Mr. Mercadal occupied the subject
property until sometime in 2012, and then you began to
occupy it pursuant to the Commercial Lease Purchase
Agreement dated May 1, 2012?

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"A. Yes.

"Q. Are you saying you began to occupy it on May 1?

"A. I took possession over the -- back over the building, but I
never opened back up Just Kid'n Around, LLC. I never opened
any business back in that building.

"Q. You were not in possession of the building or paying rent
before that date?

"A. No. I started paying per the Purchase Agreement that I
had with George that he dropped off to me that I signed. My
first note payment was not due until June 1, 2012."

(emphasis added)

Martinez further testified in her deposition that Tarlton had told

her that they could not handle the lease-purchase transaction in the

usual way with a deed and a mortgage because Jubilee had a mortgage

on the property. She said that Tarlton had brought the lease-purchase

agreement to her office in the building where she was operating an after-

school program under the name DAH, which was located across the street

from the property. She testified that they had sat there in her office, that

she had read the lease-purchase agreement, and that she had noticed

that the lease-purchase agreement did not have an amortization schedule

attached to it. She said that she had used her computer to generate an

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amortization schedule, printed it, and attached it to the lease-purchase

agreement. The amortization schedule attached to the lease-purchase

agreement shows that it was printed on May 1, 2012. She said that the

lease-purchase agreement originally listed Eastern Shore Properties,

LLC, a management company she owned, as the lessee-purchaser but

that she decided at the meeting on May 1, 2012, to change the name of

the lessee-purchaser to JKA, so she marked out the name Eastern Shore

Properties, LLC; wrote JKA's name in place of Eastern Shore Properties,

LLC; initialed the change; signed the lease-purchase agreement; and

gave it to Tarlton. Martinez said that Tarlton was supposed to sign the

lease-purchase agreement, get Sawyer to sign it, and return it to

Martinez. Martinez testified that she did not have her signature

notarized because there was no notary public onsite at her office on May

1, 2012.

In the text messages between Tarlton and Martinez, Tarlton

frequently informed Martinez that he needed a check from her. In some

of the texts, Tarlton characterized the check he was asking Martinez to

provide as a "rent check," but, in other text messages, he merely stated

that he needed a "check" without characterizing it as a rent check. In a

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text message that Martinez sent Tarlton in 2015, she stated that she was

free from her partner in JKA and that "[n]ow that he can't try and claim

anything else, I can [sic] would like to finish the paperwork on the

building." Tarlton responded: "Sounds good. What do you want to do?"

Martinez answered: "Just wanted to make sure its all finalized. That we

are good. [T]he owner financing that we did on the daycare." Tarlton

asked if Martinez wanted a lease and asked whether Martinez still had

her notes because, Tarlton said, he "did not remember the details."

Martinez answered: "Yes I still have all the paperwork. I will be back in

town tomorrow and will send it over." Tarlton then said: "I will have to

review it. Honestly cannot remember the details." Martinez then said:

"All I remember is we finalized everything except for the LLC."

In a later text, Tarlton said: "Need to update my files. Do you want

to work towards a lease?" Martinez responded: "I am confused. You did

owner financing for me on the building several years back. I've been

paying you per the mortgage. And I have gotten the insurance on the

building that you requested. Why do I need a lease?" In response, Tarlton

said: "Did we ever sign the paperwork? I may be going crazy. I thought

there was a down payment required??? Please find the paperwork and

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refresh my memory???" Martinez then replied: "No down payment and

yes[,] it is signed. You gave it to me[.] I signed it and gave it back with

the payment and then I worked on the insurance." Tarlton then said:

"Too much going on. I honestly did not know that we ever implemented

it. I know that we added property insurance and taxes to the monthly

payment. I will check my files." Martinez then said: "The owner

financing is why we added those two." Tarlton responded: "I just need to

review the contract ... why have we never closed it and transferred the

property to your name??? I will review my file today. Does not make

sense[.]" Martinez then said: "You said you had a mortgage on the

property and could not close it with a title company, but you had your

attorney do the paperwork." Tarlton replied: "??? let me review the file. I

guess I am losing it." Later, Tarlton said: "Please get me a copy of that

contract. I cannot lay my hands on it." Martinez replied: "I will have to

find it. It's packed up in storage." Tarlton responded: "10-4. I do not have

a copy in my file. I want to review it asap so that we know what is what."

Martinez responded: "I do too. I haven't been paying on a building for all

these years for nothing." Tarlton said: "I understand. Just want to verify

the agreement and for some reason I do not have it."

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On September 22, 2023, Martinez and JKA moved the circuit court

for a partial summary judgment (1) ruling in their favor insofar as their

counterclaim sought a declaration that the lease-purchase agreement

that the parties had allegedly entered into in 2012 was a valid, binding,

and enforceable agreement; (2) ruling in their favor on their breach-of-

contract claim based on Jubilee's alleged breach of the lease-purchase

agreement; and (3) ruling in their favor that Jubilee could not prevail on

its Statute of Frauds affirmative defense because, Martinez and JKA

said, they had established the partial-performance exception to the

Statute of Frauds. On October 10, 2023, Martinez, JKA, and DAH filed

a response to Jubilee's summary-judgment motion. In their response,

Martinez, JKA, and DAH asserted that Jubilee was not entitled to a

summary judgment with respect to its ejectment claim because,

Martinez, JKA, and DAH said, Martinez had lawfully entered and taken

possession of the property and remained in possession of the property

pursuant to the lease-purchase agreement that Tarlton had given

Martinez, which she had signed on May 1, 2012. Martinez JKA, and

DAH argued that the Statute of Frauds did not preclude them from

claiming a lawful right to possession of the property because, they said,

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they had satisfied the partial-performance exception to the Statute of

Frauds.

Martinez, JKA, and DAH supported their response to Jubilee's

summary-judgment motion with, among other things, an affidavit signed

by Martinez. In that affidavit, Martinez testified:

"1. I am an adult resident of Baldwin County, Alabama,
under no legal disability.

"2. I am the managing member of [JKA]. I make this
affidavit based on my own personal knowledge in my
individual capacity and in my capacity as managing member
of [JKA].

"3. [Jubilee] is owned and/or managed by Mr. George
Tarlton, and I will refer to him throughout this Affidavit as
'Mr. Tarlton' but intend for those references to include him in
his capacity as an agent of [Jubilee].

"4. In 2007, my sister, Melanie [Wolfe], entered into an
agreement with [Jubilee] to purchase the [property]. After my
sister entered into the agreement, Mr. Tarlton allowed [JKA]
to occupy and operate a day care facility at the property. [JKA]
paid [Jubilee] $4,000 a month for its occupancy of the property
until it vacated [the property] in 2011.

"5. Mr. Tarlton subsequently approached me about
purchasing the property after his prior tenants, Wayne
Mercadal and Little Feet First Learning Academy, LLC,
vacated the property.

"6. During my discussion with Mr. Tarlton in 2012, we
discussed and agreed that [Jubilee] would sell the property to
me for $350,000.00 payable over twenty years. Mr. Tarlton

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informed me that he wanted to structure the sale as owner
financing because there was a mortgage on the property. Mr.
Tarlton offered to reduce the purchase price from the amount
of $420,000.00 in the 2007 agreement to $350,000.00 to give
me credit for monies I had already paid from 2007 until 2011.
Mr. Tarlton allowed me to take possession pursuant to these
terms and stated that he would have his attorney draft an
agreement.

"7. On May 1, 2012, Mr. Tarlton personally delivered
two copies of a written agreement titled 'Commercial Lease
Purchase Agreement' to me. A true and correct copy of the
Commercial Lease Purchase Agreement is attached hereto as
Exhibit 5-A. I signed both copies that day and I handed one of
the signed copies back to Mr. Tarlton.

"8. I timely paid the first payment due on June 1, 2012,
under the Commercial Lease Purchase Agreement.

"9. Since entering into the Commercial Lease Purchase
Agreement, I have continued to make monthly payments
pursuant to the Commercial Lease Purchase Agreement
totaling over $350,000, and [Jubilee] has accepted those
payments.

"10. I received a letter dated January 29, 2021, from
[Jubilee's] attorney stating that he was terminating my
'month to month lease' of the property. A true and correct copy
of the January 29, 2021, letter is attached hereto as Exhibit
5-B.

"11. Since sending the letter dated January 29, 2021,
[Jubilee] has accepted and continues to accept my payments
of the required monthly amounts under the Commercial
Lease Purchase Agreement.

"12. I received a letter dated August 27, 2021, from
[Jubilee's] attorney stating that he was terminating my

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'month to month lease' of the property. A true and correct copy
of the August 27, 2021, letter is attached hereto as Exhibit 5-
C.

"13. Since sending the letter dated August 27, 2021,
[Jubilee] has accepted and continues to accept my payments
of the required monthly amounts under the Commercial
Lease Purchase Agreement.

"14. I have invested over $350,000.00 in purchasing this
property pursuant to the Commercial Lease Purchase
Agreement and with the understanding that at the end of the
term of the Commercial Lease Purchase Agreement I would
own the property.

"15. I have incurred attorney fees in defending against
two district court unlawful detainer actions, defending myself
against [Jubilee's] claims in Circuit Court and asserting my
own claims in Circuit Court to protect my interest in the
property."

On October 11, 2023, Jubilee filed a response to Martinez and JKA's

partial-summary-judgment motion in which it reasserted the same

arguments it had made in support of its summary-judgment motion.

Jubilee supported its response with copies of documents that it had

obtained through nonparty subpoenas. Those documents indicated that

JKA's name was on the records of utility companies serving the property

before May 1, 2012. 3

3The brief of Martinez, JKA, and DAH indicates that they filed a

motion to strike those documents, but that motion is not in the record.
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Following a hearing regarding the cross-motions for summary

judgment, the circuit court entered a judgment on October 21, 2023, that

granted Jubilee's summary-judgment motion, denied Martinez and

JKA's partial-summary-judgment motion, and dismissed all Martinez

and JKA's counterclaims with prejudice. The judgment states:

"Upon review of Motions for Summary Judgment
submitted by the parties, supporting exhibits, and after
conducting a hearing on the Motions, the Court finds that
[Jubilee's] Motion for Summary Judgment is due to be
GRANTED and [Martinez and JKA's] Motion for Summary
Judgment is DENIED as follows:

[Martinez and JKA] have occupied [Jubilee's] property
pursuant to a verbal month-to-month tenancy agreement for
$2,730.00 per month and that occupancy began prior to May
1, 2012. The Commercial Lease Purchase Agreement was
never finalized by the parties and [Martinez and JKA's]
occupancy began prior to the May 1, 2012, date of the
Commercial Lease Purchase Agreement which was never
finalized or mutually agreed to by the parties, and therefore
does not satisfy § 8-9-2, Ala. Code (1975).

"[Martinez and JKA] received proper notice to vacate
the property and [their] continued occupancy of the property
entitles [Jubilee] to all rent payments previously paid by
[Martinez and JKA] and [Jubilee] is entitled to a judgment for
$19,110.00 for the seven months of rent payments that were
returned [to Martinez and JKA]. [Martinez and JKA] are due
to be ejected from the property and [Jubilee] is entitled to
immediate possession of the property.

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"[Martinez and JKA's] counterclaims are denied and
dismissed with prejudice." 4

On November 20, 2023, Martinez, JKA, and DAH filed a

postjudgment motion challenging the circuit court's judgment and

requested oral argument regarding that motion. On November 27, 2023,

the circuit court denied the postjudgment motion without holding a

hearing.

On January 5, 2024, Martinez, JKA, and DAH filed a of appeal to

our Supreme Court.5 On August 12, 2024, our supreme court issued an

4The judgment did not adjudicate Jubilee's appeal from the district

court's judgment ruling against Jubilee in its unlawful-detainer action.

5Our supreme issued an order directing Martinez, JKA, and DAH

to show cause why, in the absence of an adjudication of Jubilee's appeal
from the district court's judgment ruling against Jubilee in its unlawful-
detainer action, the supreme court should not dismiss their appeal as
being from a nonfinal judgment. However, in Nettles v. Rumberger, Kirk,
& Caldwell, P.C., 276 So. 3d 663, 669 (Ala. 2018), our supreme court held
that "[o]nce a final judgment has been entered in a case, it is immediately
appealable, regardless of whether it is consolidated with another still
pending case." Nettles overruled Hanner v. Metro Bank & Protective Life
Insurance Co., 952 So. 2d 1056, 1060 (Ala. 2006), which had held that " 'a
trial court must certify a judgment as final pursuant to Rule 54(b), Ala.
R. Civ. P., before a judgment on fewer than all the claims in a
consolidated action can be appealed.' " Under Nettles, the judgment
entered in Jubilee's ejectment action was a final, appealable judgment
even though Jubilee's appeal from the district court's judgment ruling
against it in its unlawful-detainer action remained pending and the
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order finding that the appeal was within this court's original jurisdiction

and transferring the appeal to this court.

Standard of Review

An appellate court reviews a summary judgment de novo and uses

the same standard of review that the trial court used in determining

whether to grant the summary-judgment motion. See Dow v. Alabama

Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004). Specifically, the

appellate court must determine whether the movant has made a prima

facie showing that no genuine issue of material fact exists and that the

movant is entitled to a judgment as a matter of law. Id. In making such

a determination, the appellate court must review the evidence in the light

most favorable to the nonmovant. Id. Once the movant makes a prima

facie showing that there is no genuine issue of material fact, the burden

then shifts to the nonmovant to produce substantial evidence indicating

that there is a genuine issue of material fact. Id. Substantial evidence is

evidence of such weight and quality that fair-minded persons in the

circuit court had not certified its judgment in the ejectment action as a
final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

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exercise of impartial judgment can reasonably infer the existence of the

fact sought to be proved. See Dow, 897 So. 2d at 1039.

Analysis

On appeal, Martinez, JKA, and DAH argue that the circuit court

erred in granting Jubilee's summary-judgment motion because, they say,

they established that there was a genuine issue of material fact regarding

whether Jubilee was entitled to a judgment as a matter of law with

respect to its ejectment claim. In an ejectment action, the burden is on

the plaintiff, not the defendant, to prove superior title to the property in

question. See Sturdivant v. BAC Home Loan Servicing, LP, 159 So. 3d

47, 53-54 (Ala. Civ. App. 2013).

Jubilee asserted that it had the right to possession of the property

because it held fee simple title to the property whereas Martinez, JKA,

and DAH had nothing more than an oral, month-to-month lease that

Jubilee had terminated by giving them thirty days' notice of the

termination. Jubilee further asserted that the lease-purchase agreement

that Martinez signed conferred no interest in the property on Martinez,

JKA, and DAH because, Jubilee said, it did not sign the lease-purchase

agreement and, therefore, that agreement did not comply with the

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Statute of Frauds. The Statute of Frauds, § 8-9-2, provides, in pertinent

part:

"In the following cases, every agreement is void unless
such agreement or some note or memorandum thereof
expressing the consideration is in writing and subscribed by
the party to be charged therewith or some other person by him
thereunto lawfully authorized in writing:

"….

"(5) Every contract for the sale of lands,
tenements or hereditaments, or of any interest
therein, except leases for a term not longer than
one year, unless the purchase money, or a portion
thereof is paid and the purchaser is put in
possession of the land by the seller[.]"

Jubilee argues that, because it did not sign the lease-purchase

agreement, the Statute of Frauds precludes Martinez, JKA, and DAH

from claiming an ownership interest in the property based on that

agreement.

Martinez, JKA, and DAH, on the other hand, argue that they

presented substantial evidence indicating that they had satisfied the

partial-performance exception to the Statute of Frauds. As quoted above,

§ 8-9-2(5) expressly excepts from its operation purchasers who pay "the

purchase money, or a portion thereof" and who are "put in possession of

the land by the seller." In response, Jubilee argues that the partial-

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performance exception to the Statute of Frauds is not applicable because

that exception requires proof that the possession of the party asserting

that exception is exclusively referable to the alleged oral contract, see

Holman v. Childersburg Bancorporation, Inc., 852 So. 2d 691, 697-99

(Ala. 2002), and that, in the present case, Tarlton testified that Martinez

and JKA had taken possession of the property in January or February

2012 pursuant to an oral, month-to-month lease. Jubilee says that,

because Martinez and JKA took possession of the property pursuant to

an oral, month-to-month lease four or five months before Martinez

allegedly signed the lease-purchase agreement on May 1, 2012, Martinez

and JKA's possession of the property is not exclusively referable to the

alleged lease-purchase agreement that Martinez signed on May 1, 2012.

The flaw in Jubilee's argument is that Martinez's testimony

contradicted Tarlton's testimony that Martinez and JKA had taken

possession of the property in January or February 2012 pursuant to a

month-to-month lease. Martinez testified that she and JKA had not

taken possession of the property before she signed the lease-purchase

agreement on May 1, 2012. Moreover, she testified that she had made the

payments required by the lease-purchase agreement after she and JKA

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took possession of the property. Thus, the evidence before the circuit

court established a genuine issue of material fact regarding whether

Jubilee was entitled to a judgment as a matter of law with respect to its

ejectment claim and, therefore, the circuit court erred in granting

Jubilee's summary-judgment motion as to that claim. Moreover, because

Jubilee was not entitled to a summary judgment with respect to its

ejectment claim, the circuit court erred in granting Jubilee relief based

on that claim in the form of an award of possession of the property and

an award of $19,110.00 in damages.

Martinez and JKA also argue that the circuit court erred in

dismissing, with prejudice, all their counterclaims against Jubilee

because, they say, Jubilee did not move for a summary judgment with

respect to Martinez and JKA's counterclaims and, even if it did, it did not

make a prima facie showing that there was no genuine issue of material

fact with respect to those counterclaims or that it was entitled to a

judgment as a matter of law with respect to those counterclaims. In

Sampson v. HealthWise Health Systems Corporation, 386 So. 3d 411,

424-26 (Ala. 2023), our supreme court held that it is reversible error for

a trial court to enter a summary judgment as to claims that the summary-

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judgment motion has not challenged. Assuming, without deciding, that

Jubilee's summary-judgment motion challenged Martinez and JKA's

counterclaims against Jubilee, the circuit court erred in dismissing those

counterclaims for the same reason it erred in granting Jubilee's

summary-judgment motion as to Jubilee's ejectment claim -- Martinez

and JKA presented substantial evidence indicating that the lease-

purchase agreement fell within the partial-performance exception to the

Statute of Frauds and thereby established the existence of a genuine

issue of material fact regarding their counterclaims against Jubilee.

Therefore, we reverse the circuit court's judgment insofar as it dismissed

Martinez and JKA's counterclaims against Jubilee.

Finally, Martinez, JKA, and DAH argue that the circuit court erred

in failing to hold a hearing regarding their postjudgment motion because,

they say, their postjudgment motion had probable merit. However, our

reversal of the circuit court's judgment on other grounds renders their

final argument moot.

Conclusion

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For the foregoing reasons, the circuit court's judgment is reversed

and the cause is remanded for further proceedings consistent with this

opinion.

REVERSED AND REMANDED.

Moore, P.J., and Edwards, Hanson, and Lewis, JJ., concur.

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