EX PARTE CHRIS LANGLEY TIMBER & MANAGEMENT, INC., 1031478 (Ala. 7-22-2005)

Ex parte Chris Langley Timber & Management, Inc. In re: Chris Langley

Timber & Management, Inc. v. Jamie Reynolds Caldwell, special

administrator for the estate of Clayton M. Reynolds, deceased.

No. 1031478.

Supreme Court of Alabama.

Decided July 22, 2005.

  Appeal from Tallapoosa Circuit Court, CV-02-61; Court
of Civil Appeals, 2030196.

  PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS.

  SEE, Justice.

  Jamie Reynolds Caldwell, as special administrator for
the estate of her deceased father, Clayton M. Reynolds,
brought a declaratory-judgment action against Chris
Langley Timber & Management, Inc. ("Langley Timber"),
seeking to set aside timber deeds executed by Reynolds
in favor of Langley Timber. The trial court, finding
that Reynolds lacked the mental capacity to execute the
timber deeds, entered a summary judgment setting aside
the deeds. Langley Timber appealed to the Court of Civil
Appeals. The Court of Civil Appeals affirmed the trial
court's summary judgment. Chris Langley Timber &
Management, Inc. v. Reynolds, [Ms. 2030196, June 11,
2004] ___ So.2d ___ (Ala.Civ.App. 2004). We granted
Langley Timber's petition for certiorari review to
consider whether in affirming the trial court's summary
judgment the Court of Civil Appeals erred by shifting
the burden to Langley Timber to prove that Reynolds had
capacity to execute the timber deeds, contrary to the
accepted standard for proving insanity as the ground for
voiding a deed.[fn1] We reverse and remand.

  On July 30, 2001, two days after being released from a
long-term-care hospital to recover from heart surgery,
Clayton M. Reynolds was evaluated by a clinical
psychologist, Dr. Warren T. Jackson III. Reynolds took a
day-long battery of memory tests, which consisted of
Dr. Jackson's reading new material to Reynolds and
presenting Reynolds with lists of information, and then
testing Reynolds's ability to recall the new
information. At the time of the evaluation, Reynolds was
taking at least two medications that, according to Dr.
Jackson's deposition testimony, can affect memory.
Reynolds did not perform well on the tests. Based on an
interview and the results of the tests, Dr. Jackson
concluded that Reynolds was suffering from Alzheimer's
type dementia.

  In November 2001, Reynolds initiated contact with
Chris Langley by telephone. Chris Langley owned Langley
Timber, a logging business. During their telephone
conversation, Reynolds told Langley that he owned two
tracts of land totaling over 400 acres, one in Macon
County and one in Tallapoosa County, and that he wanted
to harvest the timber on the land. Reynolds and Langley
agreed to meet, and Reynolds provided Langley with
directions to Reynolds's house.

  In late November or early December 2001, Langley and
Josh Phillips, an employee of Langley Timber, met with
Reynolds for the first time at Reynolds's house. After
having breakfast at Reynolds's house, the three men got
into Langley's truck and Reynolds directed Langley to
the land in Macon County and Tallapoosa County from
which he wanted to harvest timber. At both locations,
Reynolds got out of the truck, unlocked and opened gates
when necessary, and showed Langley the landmarks by
which Langley's crew could locate the boundary lines of
each parcel. Reynolds showed Langley the boundary lines
of a parcel of the Macon County land that had been cut
out of the larger parcel and given to one of his
daughters.

  Reynolds told Langley during this first meeting that
one of his daughters held his power of attorney and that
he had seen a psychologist after he had had heart
surgery the previous summer. Reynolds provided Langley
with a copy of the power of attorney and a copy of Dr.
Jackson's July 2001 psychological evaluation.
Nonetheless, Reynolds assured Langley that Langley
should not worry about his daughter or the doctor
because Reynolds was "in good shape." Reynolds also
assured Langley that the timber belonged to Reynolds and
that he wanted to sell it.

  The following week, when Phillips was running errands
in Notasulga, he stopped by Reynolds's house to let
Reynolds know that Langley was working on a price sheet
for the timber. Reynolds responded that that was good,
and he told Phillips to get the price sheet to him as
soon as possible. Phillips "chatted" with Reynolds for
about 15 minutes. During this time, Reynolds took
Phillips to the barn and showed him an ultralight plane
he owned.

  Shortly thereafter Langley telephoned Reynolds to
arrange another meeting at Reynolds's house. During this
meeting, Langley and Reynolds reached an agreement
whereby Langley would cut and remove the timber and pay
Reynolds for the timber once it was delivered to the
lumberyard. Langley provided Reynolds with a list of
prices he was willing to pay for the timber and Reynolds
accepted the prices. The two men shook hands on their
agreement.

  Langley contacted an attorney, Shane Cooper,[fn2] to
determine whether Reynolds could legally execute timber
deeds under the circumstances and, if he could, to
conduct a title search and to prepare timber deeds for
Reynolds to execute. Langley gave Cooper a copy of the
power of attorney Reynolds had executed in favor of his
daughter and the psychologist's evaluation Reynolds had
given him and described to Cooper his dealings with
Reynolds. Cooper conducted a title search, which
confirmed that Reynolds in fact owned the land he
claimed to own and that Reynolds had, as he had told
Langley, previously deeded a portion of the Macon County
property to his daughter. Cooper also checked with the
probate court to determine whether any petition for
guardianship or conservatorship over Reynolds had been
filed; none was pending at that time. Apparently
concluding that Reynolds could legally execute the
timber deeds, Cooper prepared them.

  On February 11, 2002, Reynolds, accompanied by Diane
Hayes,[fn3] drove to Cooper's office in Auburn to
execute the timber deeds. Reynolds conversed with Cooper
for approximately 30 minutes in the presence of Hayes,
Langley, and Melinda Eubanks, Cooper's employee.
Reynolds stated that he owned real property in Macon
County and Tallapoosa County, that he wanted to sell the
timber on the property, that he had contacted a logger
who had agreed to pay him for the timber, and that he
wanted to sign the timber deeds. Cooper also had a
private conversation with Reynolds, in which Cooper
confirmed that Reynolds understood what he was doing and
that he was not being influenced by anyone. Reynolds
told Cooper that his children were not pleased that he
was selling the timber but that he wanted to sell it
nonetheless. Once again in the presence of Langley,
Hayes, and Eubanks, Cooper asked Reynolds if he
understood that he was signing timber deeds, which meant
the timber on his land in Macon County and Tallapoosa
County would be cut. Reynolds responded that he
understood and that he wanted to proceed. Reynolds
flipped through the pages of the two deeds, looking at
each one for a moment, and signed the two deeds, without
assistance, in the presence of a notary public.

  In May 2002, Reynolds's daughters, Jamie Reynolds
Caldwell and Paula Reynolds Baran, filed this
declaratory-judgment action in the Tallapoosa Circuit
Court seeking to set aside the timber deeds executed by
Reynolds on the ground that he lacked capacity to
execute them.[fn4] While the case was pending, Reynolds
died. Caldwell was appointed special administrator over
Reynolds's estate and was substituted as the proper
party in this case. In the declaratory-judgment
proceeding, the estate moved for a summary judgment,
arguing that there was no genuine issue of material fact
as to Reynolds's capacity to execute the deeds. The
estate supported its summary-judgment motion with the
deposition testimony of Dr. Warren T. Jackson III, the
licensed clinical psychologist who had examined Reynolds
six months before the execution of the timber deeds, and
with Dr. Jackson's July 2001 evaluation.

  Langley Timber opposed the summary-judgment motion and
supported its opposition with affidavits from Langley,
Phillips, and Eubanks. The affidavits essentially set
forth the events surrounding the negotiation of the sale
of the timber and the execution of the timber deeds. The
affidavits also stated the affiants' impressions that
Reynolds knew exactly what he was doing during the
negotiation of the timber sale and at the closing of the
sale when he executed the timber deeds. After a hearing
in which no oral testimony was heard, the trial court
found that Reynolds had lacked the capacity to execute
the deeds because he was mentally incompetent when he
executed the deeds. The trial court entered a summary
judgment in favor of the estate and set aside the timber
deeds.

  Langley Timber appealed to this Court. We transferred
the case to the Court of Civil Appeals pursuant to §
12-2-7(6), Ala. Code 1975. The Court of Civil Appeals
affirmed the trial court's judgment.[fn5] Chris Langley
Timber & Mgmt., Inc. v. Reynolds, [Ms. 2030196, June
11, 2004] ___ So.2d ___ (Ala.Civ.App. 2004). Langley
Timber petitioned this Court for the writ of
certiorari. We granted certiorari review to consider
whether the Court of Civil Appeals erred in affirming
the trial court's summary judgment by shifting to
Langley Timber the burden of proof of Reynolds's
capacity to execute the timber deeds, contrary to the
requirements of the accepted standard for proving
insanity as the ground for voiding a deed.

  Our review of a summary judgment is de novo.

  "In reviewing the disposition of a motion for summary
judgment, `we utilize the same standard as the trial
court in determining whether the evidence before [it]
made out a genuine issue of material fact,' Bussey v.
John Deere Co., 531 So.2d 860, 862 (Ala. 1988), and
whether the movant was `entitled to a judgment as a
matter of law.' Wright v. Wright, 654 So.2d 542 (Ala.
1995); Rule 56(c), Ala. R. Civ. P. When the movant makes
a prima facie showing that there is no genuine issue of
material fact, the burden shifts to the nonmovant to
present substantial evidence creating such an issue. Bass
v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797
— 98 (Ala. 1989). Evidence is `substantial' if it is of
`such weight and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' Wright,
654 So.2d at 543 (quoting West v. Founders Life
Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.
1989)). Our review is further subject to the caveat that
this Court must review the record in a light most
favorable to the nonmovant and must resolve all
reasonable doubts against the movant. Wilma Corp. v.
Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.
1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412,
413 (Ala. 1990)."

  Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344
(Ala. 1997).

  The test for insanity as the ground for voiding a deed
is whether the grantor "`"had sufficient capacity to
understand in a reasonable manner the nature and effect
of the act which he was doing."'" Wilson v. Wehunt,
631 So.2d 991, 996 (Ala. 1994) (quoting Hall v. Britton,
216 Ala. 265, 267, 113 So. 238, 239 (1927), quoting in
turn 18 C.J. 218, § 131); see also McAlister v.
Deatherage, 523 So.2d 387, 388 (Ala. 1988), and Weaver
v. Carothers, 228 Ala. 157, 153 So. 201 (Ala. 1934). In
order to render a deed void, the burden of proof is on
the party attacking the conveyance to show the
incapacity of the grantor at the time the conveyance is
made. Abbott v. Rogers, 680 So.2d 315, 317
(Ala.Civ.App. 1996). However, insanity existing before
the time of the conveyance will raise a presumption of
insanity at the time of the conveyance if it is shown
that the insanity is permanent in its nature.[fn6]
Abbott, 680 So.2d at 317 (citing Wilson, 631 So.2d at 996);
see also Pritchard v. Fowler, 171 Ala. 662, 672, 55 So. 147,
149 (1911). If the party challenging the conveyance
establishes that the grantor suffers from a permanent
type of insanity, then the burden shifts to the party
defending the conveyance to show that the transaction
occurred during a lucid interval. Wilson, 631 So.2d at 996.

  The Court of Civil Appeals impliedly held that Reynolds's
Alzheimer's disease constituted "permanent insanity":

  "Dr. Jackson's testimony and evaluation established
  that [Reynolds's] impaired mental condition was
  permanent; that [Reynolds] could not absorb
  information; that [Reynolds] could not hold on to new
  information for 30 minutes; that [Reynolds] could not
  make or communicate responsible decisions involving
  his affairs; that [Reynolds] did not know what he
  remembered or knew and was capable of saying or
  thinking anything; that [Reynolds's] delayed recall of
  complex visual information was impaired; and that
  [Reynolds] was no longer competent to manage his
  financial affairs."

___ So.2d at ___. The Court of Civil Appeals held that
the evidence presented by Dr. Jackson's testimony and
his evaluation "was sufficient to shift the burden of
proof to [Langley Timber] to demonstrate that the [timber
deeds were] executed during a lucid interval."
___ So.2d at ___.[fn7] This shifting of the burden would be
correct if the estate established that Reynolds was
permanently insane. See Abbott, 680 So.2d at 317. While
it may be apparent that the dementia caused by
Reynolds's Alzheimer's disease was "permanent" in nature
as distinguished from temporary,[fn8] it is not so
apparent that the state of Reynolds's dementia
constituted "insanity" as that term is used to describe
the mental incapacity necessary to justify the avoidance
of a contract or a deed.

  To determine whether Reynolds's dementia amounted to
insanity so as to render the timber deeds void, the
proper inquiry is whether the Alzheimer's dementia
permanently deprived Reynolds of "`"sufficient capacity
to understand in a reasonable manner the nature and
effect of"'" his signing the timber deeds. See Wilson,
631 So.2d at 996. We cannot agree with the Court of
Civil Appeals' conclusion that Dr. Jackson's testimony
and his evaluation of Reynolds established that there
was no genuine issue of material fact as to whether the
dementia caused by Reynolds's Alzheimer's disease
constituted permanent insanity and, therefore, shifted
the burden of proof to Langley Timber to prove that
Reynolds signed the timber deeds during a lucid
interval.[fn9]

  The testimony of Dr. Jackson describes the tests
Reynolds took as involving

  "reading to the patient two short paragraphs of
  information and telling them to listen carefully
  because they're going to be asked to remember the
  information and tell it back after we finished
  reading it to them, and then later upon delay we'll
  ask them to recall it again. So we tell them to pay
  attention. This is a memory test."

  Dr. Jackson testified in his deposition that Reynolds had had some
recall of the information but that he had "had no recall whatsoever of
that information" after a 30-minute delay. Reynolds had had similar
problems with "list-learning tasks" and "tests that involve delayed recall
of complex visual information." Dr. Jackson testified that it was rare
even in "those with fairly substantial Alzheimer-type dementia, to have
no recall like that." When deposing counsel asked Dr. Jackson if, based
on the July 2001 evaluation, Dr. Jackson believed that Reynolds would
have thereafter had the capacity to understand and recognize the contents
of his estate, Dr. Jackson replied "No." When asked if, after seeing the
results of the July 2001 evaluation, he thought that Reynolds would
thereafter be able to "determine independently what he should — what he
would like to do with that property as far as disposition," Dr. Jackson
replied:

  "A. Absolutely not. He could not hold on to new
  information for even up to 30 minutes."

  It is not clear how severe short-term memory loss, which is all that
Dr. Jackson's testimony appears to establish Reynolds suffered from,
demonstrates that Reynolds was unable to "understand in a reasonable
manner the nature and effect of" executing the timber deeds.[fn10] See
Wilson, 631 So.2d at 996. We recognize that the ultimate conclusion of
Dr. Jackson's July 2001 evaluation appears to be that Reynolds was "no
longer competent to manage his financial affairs." However, given the
questionable basis for Dr. Jackson's conclusions (Reynolds's deficient
short-term memory), the evidence with which Langley Timber responded to
the estate's summary-judgment motion is substantial; it is of such weight
and quality that fair-minded persons in the exercise of impartial
judgment can reasonably infer from it that Reynolds was able to
understand in a reasonable manner the nature and effect of his signing
the timber deeds. See Hobson v. American Cast Iron Pipe Co.,
690 So.2d at 344 ("When the movant makes a prima facie showing that there
is no genuine issue of material fact, the burden shifts to the nonmovant
to present substantial evidence creating such an issue. . . . Evidence is
`substantial' if it is of `such weight and quality that fair-minded
persons in the exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved.'" (quoting West v. Founders
Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)).

  Langley Timber presented an affidavit of Chris Langley setting forth
his dealings with Reynolds regarding the sale of the timber, an affidavit
of Josh Phillips describing his encounters with Reynolds, an affidavit of
Shane Cooper describing his observations of Reynolds,[fn11] and an
affidavit of Melinda Eubanks describing Reynolds's behavior when he
signed the deeds. Those affidavits all indicate that Reynolds knew what
he was doing during the negotiation of the timber sale and when he
executed of the timber deeds.

  The Court of Civil Appeals concluded that these affidavits did rebut
the estate's evidence of Reynolds's "inability to recall established
facts such as: directions to his home, the location and boundaries of his
farm, the reason for selling his timber, and his children's objection to
the sale"; the Court of Civil Appeals nonetheless held that that evidence
did not sufficiently rebut Dr. Jackson's evaluation that Reynolds "had no
delayed recall of information." However, Reynolds's ability to recall the
location and boundaries of the land on which the timber was located,
including the boundary of the parcel he had given to one of his
daughters, to recall his reason for selling the timber, and to recall the
fact that his children objected to the sale of the timber certainly
appears to be more indicative of Reynolds's capacity to execute the timber
deeds than is Reynolds's inability to recall lists of new information
while he was on medication that might have affected his memory.[fn12]

  The Court of Civil Appeals also stated as follows regarding the
affidavits presented by Langley Timber:

  "Declarations of a person, whose mental capacity is
  at issue, and witnesses' impressions of normalcy did
  not rebut Dr. Jackson's medical diagnosis as to
  [Reynolds's] inability to absorb new information or
  to make responsible decisions involving his affairs."

  However, a psychologist's conclusions are not irrebutable by lay
testimony. See Lackey v. State, 615 So.2d 145 (Ala.Crim.App. 1992)
("`"Expert testimony, even when uncontradicted, is not conclusive on the
issue of [competency], . . . and the jury may find such testimony
adequately rebutted by the observations of mere laymen."'" (quoting Ellis
v. State, 570 So.2d 744, 752 (Ala.Crim.App. 1990), quoting in turn United
States v. Mota, 598 F.2d 995, 999 (4th Cir. 1979), and citing Greider v.
Duckworth, 701 F.2d 1228, 1234 (7th Cir. 1983)).

  Viewing all of the evidence in a light most favorable to Langley
Timber, the party opposing the summary-judgment motion, we conclude that
the evidence offered by Langley Timber was substantial and that it
created a genuine issue of material fact as to whether Reynolds had the
capacity to execute the timber deeds. The trial court erred in entering a
summary judgment, and the Court of Civil Appeals erred in affirming the
trial court's judgment. We reverse the judgment of the Court of Civil
Appeals and remand the cause to that court for proceedings consistent with
this opinion.

  REVERSED AND REMANDED.

  Nabers, C.J., and Lyons, Harwood, Stuart, Smith, and Bolin, JJ.,
concur.

  Parker, J., concurs in the result.

[fn1] The Court of Civil Appeals' opinion indicates that the trial
court's judgment set aside a "Timber Purchase Agreement."
___ So.2d at ___. However, the trial court's judgment does not refer to any contract
or agreement but states that "Reynolds lacked capacity to execute the
timber deed[s]. . . . Accordingly, . . . the timber deed[s] [are] hereby
set aside and held to be legally void."

[fn2] It is not clear from the record whether Langley contacted Shane
Cooper after his first or after his second meeting with Reynolds. Cooper
is Langley Timber's counsel on appeal.

[fn3] Diane Hayes is described in the record as Reynolds's
"girlfriend/companion."

[fn4] On June 11, 2002, Reynolds's daughters were appointed
co-conservators over Reynolds, and Diane Hayes was appointed as his
guardian. The guardianship/conservatorship proceedings began in December
2001.

[fn5] Judge Murdock dissented, stating: "Based on the record before this
court, I conclude that this case was not an appropriate case for summary
judgment." ___ So.2d at ___.

[fn6] In contrast, "proof of insanity at intervals or of a temporary
character would create no presumption that it continued up to the
execution of the instrument, and the burden would be upon the attacking
party to show insanity at the very time of the transaction." Pritchard v.
Fowler, 171 Ala. 662, 672, 55 So. 147, 149 (1911).

[fn7] In support of this conclusion, the Court of Civil Appeals cites
Hardee v. Hardee, 265 Ala. 669, 678, 93 So.2d 127, 134 (1957), in which
this Court, without explanation, shifted the burden to the party
defending the conveyance, although it expressed "some doubt as to whether
or not [the doctor's] testimony should be construed as showing that [the
grantor] suffered from permanent insanity."

[fn8] The caselaw contrasts permanent insanity, also called "habitual
insanity," with "temporary incompetence," Abbott, 680 So.2d at 317;
"insanity at intervals," Abbott, 680 So.2d at 317, Hall, 216 Ala. at 267,
113 So. at 239, and Pritchard, 171 Ala. at 672, 55 So. at 149; and
"insanity of a temporary character," Hall, 216 Ala. at 267, 113 So. at 239,
and Pritchard, 171 Ala. at 672, 55 So. at 149.

[fn9] Because we hold that there is a genuine issue of material fact as
to whether Reynolds's dementia amounted to permanent insanity, the burden
could not, on the estate's summary-judgment motion, shift to Langley
Timber to show that Reynolds executed the timber deeds during a lucid
interval. Instead, the burden stayed with the estate to show that
Reynolds lacked capacity at the time he executed the timber deed. See
Abbott, 680 So.2d at 317. Langley Timber's evidence created a genuine
issue of material fact as to that question. The relevant inquiry remains
whether at the time Reynolds executed the timber deeds, he had sufficient
capacity to understand in a reasonable manner the nature and effect of
executing those timber deeds. Wilson, 631 So.2d at 996.

[fn10] We note that the Court of Civil Appeals' opinion does not mention
that on the day Dr. Jackson administered the tests and prepared his
evaluation, Reynolds was taking medication, one of the side effects of
which was memory loss.

[fn11] Attached to Cooper's affidavit is a transcript of a conversation
that took place between Cooper and Reynolds on the day the timber deeds
were executed and in which Cooper apparently sought to confirm Reynolds's
capacity to execute the deeds.

[fn12] The Court of Civil Appeals also expressed concern that the pricing
schedule Langley submitted to Reynolds constituted "complex visual
information" and that Dr. Jackson had established that Reynolds's delayed
recall of such information was impaired. This is a legitimate concern for
the finder of fact; however, the capacity required to execute a deed does
not require that one be able to recall the detailed price terms of the
contract. Instead, he must "understand in a reasonable manner the nature
and effect of the act which he was doing." See Wilson, 631 So.2d at 996.