author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    GALACTIC EMPLOYER SERVICES, INC. v. Clarence McDORMAN and Thomas “Slate” McDorman.
    2020094.
    Court of Civil Appeals of Alabama.
    July 11, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021789.

      Leatha Gilbert of Gilbert & Cook, PC, Birmingham, for appellant.
    Don F. Wiginton, Birmingham, for ap-pellees.
   CRAWLEY, Judge.

Galactic Employer Services, Inc. (“Galactic”), appeals from the trial court’s summary judgment in favor of Clarence McDorman (“Clarence”) and Thomas “Slate” McDorman (“Slate”). We affirm.

Zeyad Awwad was hired as the chief executive officer of Matrix, Inc., a corporation that provided “e-commerce” solutions and computer-network support and that designed Internet Web pages. Before he was hired by Matrix, Awwad had been serving a sentence in a federal penitentiary, and, at the time of his hiring, he was on work release. Clarence, who was the chairman of Matrix’s board of directors, conducted an investigation into Awwad’s background before Awwad was hired. After Awwad was hired, Matrix entered into an agreement with Galactic for Galactic to provide payroll services for Matrix. Galactic eventually received an insufficient-funds notice on a draw it had made from Matrix’s account. However, Galactic continued providing its payroll services to Matrix based on Awwad’s alleged representation to Blan Marriott, the president of Galactic, that Matrix would provide payment for its payroll debt. Some payments on that debt were subsequently made by Matrix, as well as by Clarence and by Slate, the vice president of Matrix. Aw-wad was eventually fired after it was discovered that he had misused Matrix’s funds and had created significant debt. The debt owed to Galactic remained unpaid.

Galactic initially sued Slate; Matrix; Sean Andrews, a shareholder in Matrix; Awwad; and other fictitiously named defendants, seeking compensatory and punitive damages on claims of breach of contract, unjust enrichment, fraud, misrepresentation, and civil conspiracy. Slate and Andrews both filed motions to dismiss that were denied; then, they each filed an answer. Andrews was subsequently dismissed as a defendant by a joint stipulation. Service was not perfected on Matrix, and Galactic’s claims against it were dismissed, without prejudice. Galactic subsequently filed an application for entry of default against Aw-wad. The trial court entered a default judgment against Awwad in the amount of $20,120.54.

Galactic amended its complaint to include Clarence as a defendant and to add counts alleging negligence, wantonness, joint enterprise, and vicarious liability, and it sought to pierce the corporate veil; it amended its complaint a second time to dismiss its breach-of-contract claim against Clarence and Slate. Clarence and Slate filed motions for a summary judgment, with supporting evidentiary materials; in response, Galactic filed oppositions to the motions for a summary judgment, with supporting evidentiary materials. On Galactic’s motion, the trial court reinstated Matrix as a defendant, and Matrix filed an answer. Galactic also filed a cross-motion for a summary judgment.

The trial court entered an order granting a summary judgment to Clarence and Slate, specifically finding “that said defendants owed no legal duty to the plaintiff under the undisputed facts of this case.” Galactic’s claims against Matrix remained pending. Matrix filed no response to Galactic’s motion for a summary judgment, and the trial court entered a summary judgment in favor of Galactic and against Matrix in the amount of $33,124.20, based on Galactic’s breach-of-contract claim. Galactic then appealed to this court from the trial court’s summary judgment in favor of Clarence and Slate.

Galactic raises a number of arguments contending that it raised sufficient evidence to support the various fraud and negligence claims it asserted against Clarence and Slate. 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).

I.

Did Clarence and Slate Owe a Duty to Galactic?

Before addressing the various issues raised by Galactic, we must first consider the basis on which the trial court entered its summary judgment — that Clarence, a director, and Slate, an officer, owed no duty to Galactic. Our review of the law on this subject reveals that Alabama caselaw provides two differing theories pursuant to which an officer or director may be personally liable, or owe a duty, to third parties.

A. Officer and Director Liability for Personal Participation in a Tort.

The first line of cases provides that “ ‘[a] corporate agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort.’ ” Ex parte McInnis, 820 So.2d 795, 798-99 (Ala.2001)(quoting Sieber v. Campbell, 810 So.2d 641, 645 (Ala.2001)). Our review of those eases indicates that the courts, although not explicitly stating the basis for liability, have held officers and directors personally liable for their active participation in an intentional tort. In McInnis, supra, the corporate officers or directors were sued for allegedly tortious conduct in formulating, manufacturing, labeling, and distributing a product that allegedly caused a wrongful death; in Sieber, supra, the plaintiffs complaint against the corporate officers and directors alleged breach of contract, fraudulent assertion of a corporate existence, misrepresentation, suppression, and promissory estoppel. See also Bethel v. Thorn, 757 So.2d 1154 (Ala.1999) (alleging promissory fraud, fraudulent misrepresentation, and fraudulent suppression); Inter-Connect, Inc. v. Gross, 644 So.2d 867 (Ala.1994) (alleging conversion, trespass, conspiracy, and disclosure of trade secrets); Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774 (Ala.1986) (alleging fraud); Crigler v. Salac, 438 So.2d 1375 (Ala.1983) (alleging conversion, fraud, conspiracy, negligence of a warehouseman, and wantonness of a warehouseman in committing fraud and converting personal property); Alabama Music Co. v. Nelson, 282 Ala. 517, 213 So.2d 250 (1968) (alleging conversion); Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358 (1955) (alleging conversion); Tennessee Chem. Co. v. Cheatham, 217 Ala. 399, 116 So. 420 (1928) (alleging breach of contract and conversion).

This theory of officer or director liability has been applied in at least two cases in which the plaintiffs asserted claims of negligence — Crigler, supra, and Southeastern Construction Co. v. Robbins, 248 Ala. 367, 27 So.2d 705 (1946). However, in both of those cases a special fiduciary relationship existed between the plaintiffs and the corporate officer or director. The negligence claim asserted in Crigler, negligence of a warehouseman, arose out of the fiduciary relationship created under our bailment laws. Section 7-7-204, AIa.Code 1975, provides for a negligence cause of action against a warehouseman, which the defendant corporation in that case was, pursuant to § 7-7-102(l)(h), Ala.Code 1975. Similarly, in Southeastern Construction a fiduciary relationship was recognized to exist between the officers and directors of a dissolved corporation and its shareholders and creditors.

B. No Duty Owed by Officers and Directors to Creditors.

The second theory present in Alabama caselaw indicates that this state is one of a number of jurisdictions that generally do not provide for officer or director liability to creditors, such as Galactic, for negligent or ultra vires acts, on the basis that there is no duty owed to the creditor. In Jefferson Pilot Broadcasting Co. v. Hilary & Hogan, Inc., 458 F.Supp. 310 (M.D.Ala.1978), the United States District Court for the Middle District of Alabama stated:

“It appears to be the law in Alabama that an officer, director, or controlling stockholders of a corporation generally are not liable to corporate creditors for negligent or ultra vires actions which affect the ability of the corporation to pay its debts. See Tennessee Chemical Co. v. Cheatham, 217 Ala. 399, 116 So. 420 (1928)(‘ “Directors, agents and officers of a corporation are trustees for its stockholders, but not for its creditors, and this whether the corporation is solvent or insolvent,” ’ quoting O’Bear Jewelry Co. v. Volfer & Co., 106 Ala. 205, 17 So. 525 [ (1895) ]); Force v. Age-Herald Co., 136 Ala. 271, 33 So. 866 (1902); 19 Am.Jur.2d, Corporations § 1350 (1965). ... The only ground upon which officers and directors can be liable to creditors is if they ‘fraudulently divert or destroy the corporate assets, which are subject to the payment of corporate debts.’ Force, supra, 136 Ala. at 278, 33 So. at 868. An act constitutes a fraud on the rights of the creditors if done with the intent to hinder or delay the collection of the claims. Id. at 276, 33 So. 866.”

458 F.Supp. at 312-13 (emphasis added; footnote omitted).

C. Application of These Two Theories.

In Tennessee Chemical, supra, our supreme court applied both of these theories — liability for personal participation in an intentional tort and no duty to a creditor for negligence — separately to two corporate officers or directors based upon their respective roles in the alleged wrongful conduct at issue. Accordingly, further discussion of that case is warranted.

Tennessee Chemical Company sued J.A. Cheatham and Jessie B. Black, along with other defendants, asserting that Cheatham and Black were the principal stockholders in the Farmers’ Mercantile Company; Cheatham was also the managing head of the corporation, and Black was a member of its board of directors. Tennessee Chemical had entered into a contract with Farmers’ Mercantile in which Farmers’ Mercantile received fertilizer from Tennessee Chemical to be sold on a commission basis. Cheatham had signed the contract which provided that “ ‘[i]f you are a corporation, the officer or officers signing this contract on behalf of the same shall be liable to us for carrying out all the conditions hereof.’ ” 217 Ala. at 403, 116 So. at 423. All moneys and promissory notes received from the fertilizer sales were to be sent to Tennessee Chemical. Cheat-ham was alleged to have taken moneys and promissary notes received in exchange for fertilizer and to have converted them to Farmers’ Mercantile’s own use. Promissory notes that had not been paid at their maturity had also been provided to Tennessee Chemical by Farmers’ Mercantile for fertilizer. Tennessee Chemical received a judgment against Farmers’ Mercantile, which subsequently went bankrupt. Cheatham was also alleged to have used converted moneys to form a new corporation after Farmers’ Mercantile went bankrupt; it was alleged that he placed a number of shares of the stock in the new corporation in his wife’s name in an effort to hinder Tennessee Chemical’s collection efforts. Tennessee Chemical sued Cheat-ham for his alleged wrongful conduct— conversion — and it sued Black for her active participation in the alleged conversion or for her negligence in permitting it to be done.

The trial court sustained a demurrer filed by the defendants; our supreme court reversed and remanded. As to the allegations against Cheatham, the supreme court determined that the trial court erred by sustaining his demurrer, stating:

“The bill, however, charges a conversion or tort on the part of the Farmers’ Mercantile Company as to the cash sales of the fertilizer and the notes which should have been made payable to [Tennessee Chemical] and that J.A. Cheat-ham was managing head of said respondent corporation. It is a well-settled proposition that all who participate in a wrong or tort, whether principal or agent, are equally guilty and liable to the party injured. 3 Cook on Corporations (8th Ed.) p. 2724, § 682; Cooley on Torts (3d Ed.) p. 244; Emery & Co. v. Am. Refrigerating Co., 193 Iowa, 93, 184 N.W. 750, 20 A.L.R. 86 [(1921)], and note. ...
“[Tennessee Chemical] therefore had the right to pursue both the Farmers’ Mercantile Company and the said Cheatham notwithstanding the bankruptcy of the former, and could recover from all sources until its claim was fully satisfied, but no longer. Board of Coms. v. Hurley (C.C.A.) 169 F. 92 [ (8th Cir.1909) ].”

217 Ala. at 402-03, 116 So. at 423.

However, the supreme court sustained the demurrer filed by Black, stating as follows:

“As to Jessie B. Black, the bill charges that she was a director in the Farmers’ Mercantile Company and it was her duty to see that the contract had been complied with, and then charges in the alternative that she either actually participated in the wrongs on the part of Cheatham or she negligently, in disregard of her duty, permitted the wrong. Therefore, measuring the averment by its weakest link, the said Jesse B. Black merely failed to discharge her duty as a director. As a general rule a mere corporate creditor cannot hold an officer or agent of a corporation responsible for a mere neglect or ultra vires act as distinguished from a fraudulent transfer or misapplication of corporate assets from the payment of corporate debts. Force v. Age-Herald Co., 136 Ala. 271, 33 So. 866 [ (1903) ]. ‘Directors may not be liable to corporate creditors for negligence in the management of the affairs of the corporation.’ Cook on Corporations, § 735. ‘Directors, agents and officers of a corporation are trustees for its stockholders, but not for its creditors, and this whether the corporation is solvent or insolvent.’ O’Bear Jewelry Co. v. Volfer & Co., 106 Ala. 205, 17 So. 525, 28 L.R.A. 707, 54 Am. St. Rep. 31 [(1895)].”

217 Ala. at 403, 116 So. at 423.

D. Conclusion.

We conclude that Tennessee Chemical, supra, is factually similar to the present case. Here, a default judgment has already been entered against Awwad, the corporate officer who personally committed the complained-of wrongs against Galactic. Clarence and Slate are not liable to Galactic for their alleged negligence in hiring and supervising Awwad because they owed no duty to Galactic. We will, however, review the claims asserted by Galactic involving intentional torts to determine whether Galactic presented substantial evidence to show personal participation in those alleged torts by Clarence and Slate.

II. Intentional-Tort Claims

Reviewing the evidence in a manner most favorable to Galactic, Hobson, supra, it appears that the sole person who committed any intentional tort against Galactic was Awwad, against whom a default judgment has been entered. The eviden-tiary materials submitted by Galactic make it apparent that it was Awwad’s alleged misrepresentations concerning incoming moneys from other clients’ contracts and owner contributions, at least in part, that caused Galactic to continue to pay Matrix’s payroll. Although Slate and Clarence made some payments to Galactic to ensure that Matrix’s payroll would be paid by Galactic after they became aware of the financial problems caused by Awwad’s misuse of the corporation’s money, we conclude that there was not substantial evidence presented by Galactic to show that either Clarence or Slate personally participated in the fraud committed by Awwad.

III. Piercing the Corporate Veil

We will lastly address Galactic’s argument that it presented substantia] evidence to support a piercing of Matrix’s corporate veil so as to' attach personal liability to Clarence and Slate. This court has observed:

“Our supreme court has held that the factors to be considered when determining whether to pierce the corporate veil are:
“ ‘ “ ‘Piercing the corporate veil is not a power that is lightly exercised. The concept that a corporation is a legal entity existing separate and apart from its shareholders is well settled in this state. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So.2d 37 (Ala.1988). Alorna Coat Corp. v. Behr, 408 So.2d 496 (Ala.1981). The mere fact that a party owns all or a majority of the stock of a corporation does not, of itself, destroy the separate corporate identity. Messick v. Moring, 514 So.2d 892 (Ala.1987); Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982). The fact that a corporation is under-capitalized is not alone sufficient to establish personal liability. Co-Ex Plastics, Inc. v. AlaPak, supra; East End Memorial Association v. Egerman, 514 So.2d 38 (Ala.1987). To pierce the corporate veil, a plaintiff must show fraud in asserting the corporate existence or must show that recognition of the corporate existence will result in injustice or inequitable consequences. Washburn v. Rabun, 487 So.2d 1361 (Ala.1986); Cohen v. Williams, 294 Ala. 417, 318 So.2d 279 (1975).
“ ‘ . Where the law recognizes one-man corporations, it is obvious that the law accepts the fact of domination by one person. See Ala.Code 1975, §§ 10-2A-90, 10-2A-58, 10-2A-57; Co-Ex Plastics, Inc. v. AlaPak, Inc., supra. Therefore, mere domination cannot be enough for piercing the corporate veil. There must be the added elements of misuse of control and harm or loss resulting from it. Messick v. Moring, supra; Washburn v. Rabun, supra.
“ ‘ “ ‘The corporate veil may be pierced where a corporation is set up as a subterfuge, where shareholders do not observe the corporate form, where the legal requirements of corporate law are not complied with, where the corporation maintains no corporate records, where the corporation maintains no corporate bank account, where the corporation has no employees, where corporate and personal funds are intermingled and corporate funds are used for personal purposes, or where an individual drains funds from the corporation. See, e.g., Forester & Jerue, Inc. v. Daniels, supra; Hamrick v. First National Bank of Stevenson, [518 So.2d 1242 (Ala.1987) ]; Deupree v. Ruffino, 505 So.2d 1218 (Ala.1987); Messick v. Moring, supra; East End Memorial Association v. Egerman, supra.
‘Backus v. Watson, 619 So.2d 1342, 1345 (Ala.1993), quoting Simmons v. Clark Equipment Credit Corp., 554 So.2d 398, 400-01 (Ala.1989).’
“Econ Marketing, Inc. v. Leisure American Resorts, Inc., 664 So.2d 869, 870 (Ala.1994).”

Ramko, Inc. v. Lander, 707 So.2d 645, 646-47 (Ala.Civ.App.1997).

The main ground upon which Galactic sought to pierce Matrix’s corporate veil was that corporate funds were used to pay for personal expenses. Galactic relied on check stubs and American Express statements as evidence indicating that corporate funds were used to pay personal expenses. However, Clarence and Slate both stated during their depositions that Awwad had control and use of the American Express card that had been issued in Slate’s name and that Slate had no knowledge that the card had been issued. This evidence was not contradicted by Galactic. Other payments made by company check were shown to have been made solely for the benefit of Awwad, e.g., payments for Awwad’s child-support obligation; it was undisputed that Awwad had control of Matrix’s day-to-day operations, including check-writing authority. Therefore, we conclude that there was not substantial evidence to support piercing the corporate veil in order to hold Clarence and Slate personally liable for Awwad’s misuse of Matrix’s funds.

Accordingly, the trial court’s judgment is due to be affirmed.

AFFIRMED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

While I agree with part of the discussion of the law in Part I of the main opinion, I believe that Part I of that opinion draws a distinction between actions based on intentional torts and actions based on negligence that is not supportable and, in fact, is contrary to our jurisprudence. Because the application of what I believe is the correct view of our law as it relates to officer and director participation in both intentional torts and negligence committed against third parties would not change the result reached by the main opinion, however, I concur in the result.

I begin by noting that our Supreme Court, in Ex parte McInnis, 820 So.2d 795 (Ala.2001), as quoted in the main opinion, states simply that “ ‘[a] corporate agent who personally participates, albeit in his or her capacity as such agent, in a tort is personally liable for the tort.’ ” 820 So.2d at 798-99 (quoting Sieber v. Campbell, 810 So.2d 641, 645 (Ala.2001)) (emphasis added). There is no limitation of this principle to intentional torts. In Tennessee Chemical Co. v. Cheatham, 217 Ala. 399, 402-03, 116 So. 420, 423 (1928), our Supreme Court explained that liability to third parties may be found on the part of an officer or director who participates in “a wrong or tort,” again, not limiting this principle to intentional torts.

“In Alabama, the general rule is that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting in a corporate capacity. Candy H. v. Redemption Ranch, Inc., 563 F.Supp. 505, 513 (M.D.Ala.1983); Chandler v. Hunter, 340 So.2d 818, 822 (Ala.Civ.App.1976).”

Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774, 775 (Ala.1986) (emphasis added).

Likewise, the secondary source quoted in note 2 of the main opinion states that an officer or director may be “personally liable for all torts ” against third parties in which they personally participate. See 3A William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 1135 (perm. ed. rev.vol.2002).

“An officer or a director of a corporation is not, merely as a result of his standing as such, personally liable for torts of corporate employees; to incur responsibility he must ordinarily, be shown to have in some way participated in or directed the tortious act. The above general principle has been upheld or recognized by the courts in ... actions based on negligence of subordinate corporate employees resulting in the personal injury or death of third persons.”

W.A. Harrington, Annotation, Personal Civil Liability of Officer or Director of Corporation for Negligence of Subordinate Corporate Employee Causing Injury or Death of Third Party, 90 A.L.R.3d 916, 918 (1979) (footnote omitted; emphasis added). See also Ellingson v. World Amusement Serv. Ass’n, 175 Minn. 563, 572, 222 N.W. 335, 339 (1928) (declining to apply “the universal rule” that “an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor,” not because the case involved the tort of negligence, but because the officer had not personally participated in that negligence).

The main opinion attempts to distinguish two Alabama cases where officers or directors were held liable to third parties because of their participation in negligent conduct on the ground that the negligence in those cases arose out of a special fiduciary duty. I find this explanation of Crigler v. Salac, 438 So.2d 1375 (Ala.1983), and Southeastern Construction Co. v. Robbins, 248 Ala. 367, 27 So.2d 705 (1946), to be a distinction without a difference. The officers or directors in those cases were found liable for their negligence. Any act of negligence presupposes a duty, arising from some source, that is breached by the tortfeasor. I do not see how the source of the duty that was breached in those cases provides any basis for concluding that an officer’s or a director’s direct participation in negligently tortious conduct will not subject that officer or director to personal liability to the injured party. Indeed, in Crigler v. Salac, 438 So.2d 1375, 1380 (Ala.1983), our Supreme Court appeared to clearly acknowledge the principle that an officer or a director of a corporation may be “liable for the negligent or wrongful acts of the corporation” where he or she has been a participant in the tortious conduct. (Emphasis added.)

Potential for confusion in this area stems from the fact that, unlike ordinary employees of a corporation, officers and directors also have special duties running directly to the corporation, as discussed further below. The fact that such officers and directors have such other duties, which in and of themselves may be the basis for liability directly to their corporations, does not change the fact that they may be liable for their direct participation in negligent acts against third parties for which the corporation also may find itself liable, either vicariously or because it directed or ratified that conduct.

The special duties of officers and directors to their corporations, and their shareholders, include the fiduciary duty of care in managing the affairs of the corporation. A breach of that duty, either by intentional conduct or by negligence, can result in financial losses to the corporation that serve as the basis for direct liability to the corporation or, in appropriate cases, derivative liability claims by the shareholders. An ancillary result of the same tor-tious conduct that causes such financial losses to the corporation may be the corporation’s inability to fully pay its creditors. The corporation’s inability to pay its bills, however, does not give rise to a cause of action by the creditors directly against the officers and directors of the corporation. This is so because the underlying duty that has been breached, as discussed in Jefferson Pilot Broadcasting Co. v. Hilary & Hogan, Inc., 458 F.Supp. 310 (M.D.Ala.1978), and in note 4 of the main opinion, 880 So.2d at 439, is a duty owed by the officers and directors to the corporation, not to third parties such as creditors.

The main opinion cites Tennessee Chemical Co. as a case in which our Supreme Court found, in the words of the main opinion, “liability for personal participation in an intentional tort and no duty to a creditor for negligence.” 880 So.2d at 439. The reason that no liability was found on the part of the defendant charged with negligence was not because the claim against that defendant was for negligence, but because the tort involved a breach by the defendant, a director of a corporation, of her duty of care to the corporation and its shareholders to reasonably manage the affairs of the corporation. As the Supreme Court explained:

“ ‘Directors may not be hable to corporate creditors for negligence in the management of the affairs of the corporation.’ Cook on Corporations, § 735. ‘Directors, agents and officers of a corporation are trustees for its stockholders, but not for its creditors, and this whether the corporation is solvent or insolvent.’ O’Bear Jewelry Co. v. Volfer & Co., 106 Ala. 205, 17 So. 525 [(1895)].”

Tennessee Chem. Co., 217 Ala. at 403, 116 So. at 423 (emphasis added).

Applying the aforesaid principles to the present case, I would hold that summary judgment was proper because there is not substantial evidence that either Clarence McDorman (“Clarence”) or Thomas “Slate” McDorman (“Slate”) directly participated in the tortious conduct — whether negligent or intentional' — of Zeyad Awwad (“Awwad”). Just because an employer hires a tortfeasor does not mean that the employer is a participant in that tortfea-sor’s subsequent tort.

Galactic also complains, however, of negligence in the hiring and supervision of Awwad. It is true that our Supreme Court has recognized the torts of negligent training and negligent supervision — see, e.g., Big B, Inc. v. Cottingham, 634 So.2d 999, 1002-03 (citing Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100 (Ala.1983), and Thompson v. Havard, 285 Ala. 718, 723, 235 So.2d 853 (1970)) — as well as the tort of negligent hiring — see, e.g., CP & B Enters., Inc. v. Mellert, 762 So.2d 356, 362 (Ala.2000) (noting that the jury could have found that the defendant was “negligent in hiring, supervising and retaining” an employee); Callens v. Jefferson County Nursing Home, 769 So.2d 273, 278 (Ala.2000) (reversing the dismissal of, among other things, a claim for “negligent hiring, training, and supervision”); and Floyd v. Macon County Commission, 707 So.2d 262 (Ala.Civ.App.1997) (citing Big B, Inc. v. Cottingham)).

The real problem for Galactic in attempting to hold Clarence liable in this regard (and, ultimately, Galactic’s real problem in attempting to recover in this case), however, is that Clarence was not the party who hired Awwad. The corporation, The Matrix, Inc., hired Awwad. Matrix was the employer; any negligence by the “employer” in hiring and supervising Awwad legally is negligence on the part of the corporation. Galactic could hold Clarence responsible for the corporation’s negligent hiring or supervision if the corporation was the alter ego of Clarence, i.e., if the corporate veil could be pierced. Because there is not substantial evidence in the record in this case to justify the conclusion that the corporation was merely the alter ego of Clarence, I agree that summary judgment was appropriate.

      . Clarence's investigation included discussions with both the attorney who prosecuted Awwad and Awwad’s criminal defense lawyer. Clarence testified during his deposition that both had provided a favorable recommendation for Awwad.

      . This theory, described as the "general rule” in 3A William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 1135 (perm. ed. rev.vol.2002), is further set out as follows:
      "An individual is personally liable for all torts which that individual committed, notwithstanding the person may have acted as an agent or under directions of another. This rule applies to torts committed by those acting in their official capacities as officers or agents of a corporation. It is immaterial that the corporation may also be liable. Under the responsible corporate officer doctrine, if a corporate officer participates in the wrongful conduct, or knowingly approves the conduct, the officer, as well as the corporation, is liable for the penalties. The person injured may hold either liable, and generally the injured person may hold both as joint tortfeasors.
      "Corporate officers are liable for their torts, although committed when acting officially, even though the acts were performed for the benefit of the corporation and without profit to the officer personally. Corporate officers, charged in law with affirmative official responsibility in the management and control of the corporate business, cannot avoid personal liability for wrongs committed by claiming that they did not authorize and direct that which was done in the regular course of that business, with their knowledge and with their consent or approval, or such acquiescence on their part as warrants inferring such consent or approval. However, more than mere knowledge may be required in order to hold an officer liable. The plaintiff must show some form of participation by the officer in the tort, or at least show that the officer directed, controlled, approved, or ratified the decision which led to the plaintiff's injury. If an officer or director has constructive knowledge of fraudulent acts it may be enough to attach personal liability. Circumstantial evidence, such as the way a corporation transacts business, can be used to prove constructive knowledge and direct evidence may not be needed. A corporate officer or director may not seek shelter from liability in the defense that he or she was only following orders. Personal liability attaches, regardless of whether the breach was accomplished through malfeasance, misfeasance or nonfeasance.
      "Personal liability for the torts of officers does not depend on the same grounds as ‘piercing the corporate veil,' that is inadequate capitalization, use of the corporate form for fraudulent purposes, or failure to comply with the formalities of corporate organization. The true basis of liability is the officer's violation of some duty owed to the third person which injures such third person.”
      (Footnotes omitted.)

      . Galactic acknowledges in its brief to this court, citing the affidavit of Blan Marriott contained in the record on appeal, that it is a creditor of Matrix.

      . See 3A William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 1181 (perm. ed. rev.vol.2002):
      "According to one view, creditors of corporations cannot, in general, maintain an action against directors for default in duty owed to the corporation, although the creditors may be injured as a result. In other words, some courts hold that mere creditors of an insolvent bank or other corporation cannot sue, even in equity, to hold the directors or other officers liable for losses due to mere negligence, unless so provided by statute, although a cause of action may exist in favor of the corporation, because there is no trust relation between the officers and creditors.
      "According to this rule, the directors are agents or representatives of the entire body of shareholders, and the relationship between the corporation and the directors is that of principal and agent. The agency of course implies a trust, but the obligations imposed by the trust are solely to the corporation whose agents and trustees they are, and like all other agents they are accountable for their stewardship to their principal alone. Creditors of the corporation are utter strangers to the obligation of the directors to the corporation.”
      (Footnotes omitted.)

      . Marriott admitted during his deposition that his decision to continue Galactic’s payroll services for Matrix was based upon his own business judgment.

      . The rule of officer and director liability for their direct participation in negligent acts committed on behalf of the corporation is merely a manifestation of the more general rule that:
      “In the absence of immunity, an employee may generally be held personally liable to a third person for injuries tortiously caused by the employee, regardless of whether the employer may also be liable. Although a master and servant may each and both be liable for a servant’s tort committed in the course of employment, an employee who tortiously causes injury to a third person may be held personally liable to that person regardless of whether he or she committed the tort while acting within the scope of employment, because the employee's liability is based on personal wrongdoing independent of the employment relationship.”
      27 Am Jur.2d Employment Relationship § 488 (1996) (footnote omitted). See, e.g., Sanford v. Kobey Bros. Constr. Corp., 689 P.2d 724 (Colo.Ct.App.1984) (neither the doctrine of respon-deat superior nor the fiction of corporate existence bars the imposition of individual liability for individual acts of negligence, even though the individual is acting in a representative capacity).
      This general rule is also the law in Alabama. "[Wjhenever the master, whether a corporation or an individual, is guilty of a tort through the misfeasance or wilfully wrongful conduct of a servant, the servant is for the same conduct personally guilty and liable.” Alabama Great Southern R. Co. v. Ensley Transfer & Supply Co., 211 Ala. 298, 301, 100 So. 342, 345 (1924) (emphasis added), citing Wright v. McCord, 205 Ala. 122, 88 So. 150 (1920). See also Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 472, 179 So. 908, 910 (1938) (acknowledging the principle that "the servant not being liable for his negligence or wrongful conduct, ... the master was not liable” (emphasis added)); Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 453, 13 So.2d 660, 662 (1943) ("if the servant enters upon the service, and negligently performs it, both he and his master would be liable” (emphasis added)); Sanders v. Roberts, 563 So.2d 1022 (Ala.1990); Downes v. Norrell, 261 Ala. 430, 74 So.2d 593 (1954).

      . I would presume that corporate officer and director participation in negligent acts committed by other corporate employees occurs less frequently than does their participation in fraudulent and other intentional conduct, thus explaining the lesser number of reported direct-participation cases involving actions based on negligence.


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    LIMESTONE COUNTY EDUCATION ASSOCIATION et al. v. LIMESTONE COUNTY BOARD OF EDUCATION et al.
    2020151.
    Court of Civil Appeals of Alabama.
    July 25, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021899.

      Brian Austin Oakes of White & Oakes, P.C., Decatur; and Robert C. Lockwood of Wilmer & Lee, P.C., Huntsville, for appellants.
    J.R. Brooks of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
   YATES, Presiding Judge.

The Limestone County Education Association (“LCEA”) and the Limestone County Educational Support Personnel Organization (“LCESPO”), sued the Limestone County Board of Education and its members (hereinafter collectively referred to as “the Board”), and Dr. Les Bivens, the superintendent of the Limestone County Board of Education, on May 18, 1999, alleging a breach of contract and contending that the defendants had wrongfully failed to pay their members longevity pay. LCEA and LCESPO sought declaratory and injunctive relief, as well as a writ of mandamus and/or a writ of certiorari ordering the defendants to pay the longevity pay they claimed was owed to their members.

Following an ore tenus proceeding, the trial court, on July 30, 2002, entered a judgment in favor of the defendants. LCEA and LCESPO appealed following the denial of their postjudgment motion.

LCEA is a professional organization composed of certified teachers employed by the Board. LCESPO is a professional organization composed of persons employed by the Board in noncertified positions, such as cafeteria workers, clerical workers, and bus drivers. LCEA and LCESPO represent the interests of their respective members relative to salary and compensation issues.

Before July 1997, employees of the Board were paid within a salary schedule according to the position in which they were employed and according to the number of years they had been employed in that position. The salary schedule was composed of “steps” that correlated with the number of years an employee had been employed by the Board. Beginning in 1989, the Board adopted a series of pay raises, i.e., longevity pay, for those employees that had completed a specified number of years of service. In 1989, the former superintendent of the Board, Henry A. White, recommended, and the Board passed, a two percent pay raise for employees of the Board who were beginning their 15th year of employment. On June 12, 1995, the Board approved a 'salary increase of five percent for all employees who were beginning their 20th year of employment with the Board. On October 7, 1996, the Board enacted a two percent pay raise for employees that had completed a total of 20 years of service with the Board. The longevity-pay raises applied to both certified and noncertified employees. The employees that had the requisite number of years of service with the Board were given the longevity-pay raises regardless of the number of years the employee had been employed in a particular position. For example, some employees were identified as having experience both in noncertified positions and in certified positions. In 1995, the Board, in a separate action, identified those employees that had experience in both certified and non-certified positions and gave them credit for their total years of experience. Thus, if an employee was a certified teacher at step 10 — i.e., with 10 years of employment with the Board as a teacher — but also had 5 years’ experience as a noncertified teacher’s aide, that employee was credited with 15 years of service.

Andew Swanner served as the custodian of funds and the finance director for the Board from 1984 through August 1997. Swanner was responsible for employee compensation, and he prepared the salary schedules for the Board’s enactment. Additionally, as the custodian of funds, she was familiar with Board policy and state laws affecting employee compensation.

Before 1989, there were only 10 steps on the salary schedule for certified employees. A certified employee received a pay increase each of his or her first 10 years of employment with the Board. After the Board adopted the two percent longevity-pay raise in 1989, Swanner added step 14 to the salary schedule. Following the Board’s adoption of the five percent longevity-pay raise in 1995, Swanner added step 19 to the salary schedule. Finally, after the Board adopted the two percent longevity-pay raise in 1996 for employees completing their 20th year of service, Swanner added step 20 to the salary schedule. Before 1989, the salary schedule for noncertified employees had only 6 steps. A noncertified employee received a pay increase each of his or her first 6 years of employment with the Board. As with the certified employees, Swanner added steps 14,19, and 20 to the salary schedules for the noncertified employees following each longevity-pay increase.

Swanner testified that when the Board approved the two percent longevity-pay increase in 1989 the Board’s salary schedule for the following year included the two percent increase. She stated that when the Board approved the five percent longevity-pay increase in 1995 the salary schedule for the following year included that increase. Likewise,' Swanner stated that when the Board approved the two percent longevity-pay increase in 1996 that pay increase was included in the following year’s salary schedule. Swanner specifically testified as follows:

“Q. So what I want to make sure of is that when the Board chose to pay the two percent, the five percent, and the two percent, it put it into the salary schedule and adopted that salary schedule for the next year?
“A. Yes.”

Dawn Nicholson, a payroll-department employee since 1989 and the payroll clerk since 1997, testified that the longevity-pay raises were “built into” the salary schedules.

In 1997, the state legislature passed a salary matrix, which prescribed the salaries for teachers with various levels of experience. A salary schedule based on the state salary matrix was presented to the Board for the 1997-1998 school year by Dr. Les Bivens, the newly appointed superintendent. The Board, on July 7, 1997, adopted this salary schedule for the 1997-1998 school year. The 1997-1998 salary schedule applicable to certified employees had 24 steps. The 1997-1998 salary schedule made no changes with respect to noncertified employees, because the state salary matrix applied only to certified employees. Noncertified employees continued to have steps 1-6, 14, 19, and 20 on their 1997-1998 salary schedule. Thus, certified employees did not receive longevity pay as it existed before the 1997-1998 school year, but noncertified employees did receive the longevity pay. Subsequent salary schedules adopted by the Board for the school years 1998-1999,1999-2000, and 2000-2001 did not include longevity pay for any Board employees, and all salary schedules for those years for both certified and noncertified employees contained 24 steps.

Richard Leath, the assistant superintendent for the Board, testified that by adopting the 1997-1998 salary schedule the Board rescinded the longevity-pay increases for certified employees. Leath- stated that each year’s salary schedule, when adopted by the Board, replaced the previous year’s salary schedule. In other words, according to Leath, a vote by the Board to adopt a salary schedule was, in essence, a vote by the Board to rescind the previous year’s salary schedule.

LCEA and LCESPO raise two issues on appeal: (1) that the Board violated state law and its own policies in adopting the state salary matrix and rescinding longevity pay; and (2) that the trial court’s determination that the Board’s adoption of the state salary matrix rescinded the longevity-pay increases and that the longevity-pay increases were not “in addition” to the salary schedules was against the great weight of the evidence. We note that our review of the trial court’s judgment in this matter is governed by the ore tenus rule. This court has stated with respect to the ore tenus rule:

“The decision of the trial judge, sitting without a jury and based upon factual findings from disputed evidence presented orally, is presumed to be correct and will be affirmed on appeal as long as ‘ “it is fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust.” ’ Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So.2d 71, 73 (Ala.1985) (quoting Whitt v. McConnell, 360 So.2d 336, 337 (Ala.1978)).”

Milligan v. Albertville City Bd. of Educ., 661 So.2d 254, 255 (Ala.Civ.App.1995).

LCEA and LCESPO contend that the rescission of the longevity-pay increases was never proposed by the superintendent or adopted by the Board; therefore, they contend, the trial court erred in determining that the longevity-pay increases had been abrogated by the adoption of the state salary matrix in 1997 and in subsequent school years. LCEA and LCESPO further contend that the Board failed to communicate to them its intention to rescind the longevity-pay increases. Section 16-l-30(b), AIa.Code 1975, provides:

“(b) The local board of education shall, upon the written recommendation of the chief executive officer, determine and establish a written educational policy for the board of education and its employees and shall prescribe rules and regulations for the conduct and management of the schools. Before adopting the written policies,- the board shall, directly or indirectly through the chief executive officer, consult with the applicable local employees’ professional organization. Input by the applicable professional organization shall be made in writing to the chief executive officer.' Representatives of the professional organization shall be made known to the chief executive officer in writing by the professional organization’s duly elected officers or their representative. The chief executive officer of the board may also consult with professional assistants, principals, employees, and other interested citizens. The written policies, rules, and regulations, so established, adopted, or promulgated shall be made available to all persons affected and employed by the board. Any amendments to the policies, rules, and regulations shall be developed in the same manner and furnished to the affected persons employed by the board within 20 days after adoption.”

Board policy provides that:

“The adoption of policy is the responsibility of the Board. For a policy to be adopted by the Board, it must receive a majority vote. A policy introduced and recommended to the Board shall not be adopted until a subsequent meeting. This practice will provide the Board members with time to study the proposed policy and give interested parties an opportunity to react.
“Temporary approval may be granted by the Board in lieu of formal policy to meet emergency conditions or special events which will take place before formal action can be taken.”

“A board of education must comply with the policies it adopts.” Ex parte Board of Sch. Comm’rs of Mobile County, 824 So.2d 759, 761 (Ala.2001). “Salaries are a matter of school board policy. Once the Board adopts a policy, it is bound to follow that policy until the policy is modified or amended by the Board in accordance with the procedures set forth in [§ 16-1-30, Ala.Code 1975]." Beverly v. Board of Sch. Comm’rs of Mobile County, 678 So.2d 113, 115 (Ala.Civ.App.1995) (citations omitted).

Dr. Bivens recommended the proposed salary schedule containing the state salary matrix to the Board as required by § 16-1-30, Ala.Code 1975, and the Board adopted that salary schedule on July 7, 1997. Swanner testified that before the state salary matrix was adopted by the Board on July 7, 1997, it had been discussed at Board work sessions. See Dale v. Birmingham News Co., 452 So.2d 1321 (Ala.1984) (drawing no distinction between informal and formal meetings of the boards of education of this state). Swan-ner stated that the general public as well as members of LCEA were invited to attend those work sessions. She stated that Emmitt Jimmar, the Alabama Education Association (“AEA”) UniServ Director for Limestone County, had attended several of those work sessions. Swanner testified that she thoroughly explained the state salary matrix during those work sessions. She stated that she explained during those work sessions, and that the Board members understood, that employees of the Board would be paid in accordance with the salary matrix, regardless of their experience. Swanner also testified that those in attendance at the work sessions, including LCEA’s officers, had an opportunity to ask questions and state their positions relative to the adoption of the state salary matrix.

Swanner testified that, before the state salary matrix was adopted, she specifically discussed it with LCEA’s officers and its members at a regularly scheduled meeting of LCEA in May 1997. Swanner testified that she gave LCEA’s officers a copy of the salary matrix and explained how the salary matrix worked. She stated that she informed the group that certified employees of the Board would be paid in accordance with the salary matrix for the 1997-1998 school year.

The record indicates there was further discussion regarding the salary matrix and longevity pay before the adoption of salary schedules by the Board in subsequent years. Dr. Bivens testified that he complied with Board policy and state law before recommending salary schedules to the Board in subsequent years. On December 10, 1997, Rhonda Hacker, the president of LCEA for the 1997-1998 academic year, wrote Dr. Bivens a letter stating that it was her position that the longevity pay should be paid in addition to the salary required to be paid by the state salary matrix. Hacker testified that she was requesting that the longevity pay be paid for the 1997-1998 school year and that it also be paid for the 1998-1999 school year. On January 8, 1998, Hacker appeared before the Board at a regularly scheduled meeting and requested that the longevity-pay increases be placed in the 1998-1999 salary schedules. Jimmar appeared before the Board on February 5, 1998, and requested that the longevity-pay raises be reinstated to the salary schedules. Dr. Bivens responded to Hacker’s and Jim-mar’s request by letter on March 3, 1998, stating that he did not agree with the position put forth by Hacker and Jimmar and, further, that the longevity pay would not be reinstated to the salary schedule for the 1998-1999 school year.

Jimmar wrote letters to Dr. Bivens on April 30, 1998, and May 27, 1998, raising questions regarding the longevity pay. The April 30, 1998, letter from Jimmar to Dr. Bivens was copied to Hacker and Liz Wingard, LCESPO’s president. The Board held work sessions on May 18,1998, June 15, 1998, and July 7, 1998, to discuss the 1998-1999 salary schedules. Dr. Bivens testified that Jimmar attended those work sessions. The Board voted to adopt the salary schedules for the 1998-1999 school year on August 3, 1998. Dr. Bivens testified that before he recommended the 1998-1999 salary schedules to the Board, he had before him the positions set forth by LCEA and LCESPO in writing and that he fully understood those positions, but simply disagreed, with them.

Dr. Bivens testified that he consulted with both LCEA and LCESPO before the salary schedules for the 1999-2000 and 2000-2001 school years were recommended and adopted by the Board. In July 1999, Peggy Sanders, LCEA’s president for the 1999-2000 school year, requested that Dr. Bivens forward all policies proposed by the Board to her or Jimmar. Jimmar wrote the Board on June 25,1999, acknowledging receipt of the proposed salary schedules for the 1999-2000 school year and raising certain concerns regarding those schedules. In August 1999, Dr. Bivens requested input regarding, salary schedules from Sanders, Jimmar, and Wingard.

In July 2000 and August 2000, Dr. Bivens again forwarded copies of the salary schedules to the presidents of the LCEA and LCESPO and requested input from each regarding the schedules. Jimmar again responded with questions concerning the proposed salary schedules and addressed the Board at a meeting on November 6, 2000; however, the Board voted to adopt the proposed salary schedules for the 2000-2001 school year.

After reviewing the record, we conclude that the Board complied with § 16-1-30, Ala.Code 1975, and Board policy before adopting the salary schedules for 1997-1998 through 2000-2001 school years. The evidence indicates that before the salary schedules containing the state salary matrix were adopted for those years, they were presented to and discussed with LCEA’s and LCESPO’s representatives at Board meetings and work sessions as well as at LCEA’s meetings. Additionally, the Board consulted with LCEA and LCESPO through correspondence between Dr. Bivens and their representatives in which they were asked for their input on the issue of salary schedules. LCEA and LCESPO were given sufficient opportunities to state their positions on the issue of longevity pay and the salary schedules.

LCEA and LCESPO also argue that there was no evidence presented indicating that the superintendent proposed to rescind the longevity-pay increases. It appears from the record that the practice of the Board was to propose and adopt a salary schedule before each school year and that the salary schedule adopted would rescind and replace the previous year’s salary schedule. The evidence does not suggest that it was the policy of the Board to take a specific action to rescind the previous year’s salary schedule. See Ex parte Board of Sch. Comm’rs of Mobile County, supra (holding that this court must give substantial deference to a board’s interpretation of its policy, if reasonable). As discussed above, before the Board adopted the state salary matrix in July 1997, the matter was presented to and discussed with LCEA. It was made known to the LCEA’s members that they would no longer be paid the longevity increases as in previous years, but, rather, they would be paid in accordance with the state salary matrix. The salary schedule based on the state salary matrix was then recommended to the Board by Dr. Bivens and adopted. Because it was the Board’s practice that a newly adopted salary schedule replaced and rescinded the previous year’s salary schedule, we conclude that Dr. Bivens was not required to specifically propose the rescission of the longevity-pay increases.

LCEA and LCESPO next argue that the longevity pay was incentive pay that existed separate and apart from the salary schedule and, therefore, they argue, it could not be rescinded by the adoption of the state salary matrix. As support for this argument, LCEA and LCESPO point to the fact that certain employees of the Board were paid the longevity increases regardless of their step on the salary schedule. We disagree. The evidence in the record indicates that the longevity increases did not exist “independent of’ or “on top of’ the salary schedules. Swan-ner’s testimony was very clear that when the Board adopted the longevity increases, the Board placed those raises in the salary schedules and adopted those salary schedules for the following years. There was no evidence presented indicating that the longevity pay existed separate and apart from the salary schedules. Further, LCEA’s and LCESPO’s reliance upon the fact that certain employees received the longevity-pay increases regardless of their step on the salary schedule as evidence that the longevity pay existed independent of the salary schedules is unpersuasive. The record indicates that there were certain employees with experience in both certified and noncertified positions. Those employees were identified by the Board and credited for their combined years of service in both the certified and noncertified positions and were paid the longevity increases regardless of the step they occupied on the salary schedule in their current position. We cannot conclude that the longevity pay existed separate and apart from the salary schedules based on the Board’s treatment of those few employees.

AFFIRMED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

      . Section 16-1-30, Ala.Code 1975, which became effective on July 1, 1995, replaced § 16-8-10, Ala.Code 1975.

      . LCEA is an affiliate of the AEA. Dr. Bivens testified that it was his general understanding that Jimmar was the spokesman for both LCEA's and LCESPO’s members with regard to salary and compensation issues.


author: MURDOCK, Judge.

text:
    BYNUM AND LIVESTOCK COMMISSION COMPANY, INC. v. Henry WHISENANT, Sr.
    2010612.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Denied Nov. 26, 2003.

      Bennett L. Pugh, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Daniel B. King of King & King Attorneys, P.C., Gadsden, for appellee.
   MURDOCK, Judge.

Henry Whisenant, Sr., filed a complaint in the Etowah Circuit Court against By-num Stockyard and other fictitiously named defendants, seeking workers’ compensation benefits for an injury he allegedly suffered to his right shoulder on April 24, 1999. Bynum Stockyard answered the complaint, denying the allegations and asserting affirmative defenses. Whisenant amended his complaint on January 3, 2001, substituting the correct legal name of the defendant, Bynum and Livestock Commission Company, Inc., for Bynum Stockyard, and adding a claim for wrongful termination. Bynum and Livestock Commission Company, Inc. (“Bynum”), answered the amended complaint, denying the material allegations and asserting several affirmative defenses.

An ore tenus proceeding was held on October 2, 2001. At the beginning of the proceeding, the parties stipulated to a number of relevant facts, including that “Whisenant got injured while working for ... Bynum.” The parties also stipulated that the issues before the trial court were (1) “the extent of [Whisenant’s] disability,” and (2) the determination of the average weekly wage.

The trial court entered a judgment on February 1, 2002, finding, among other things, that Whisenant suffered a 70% permanent partial disability as a result of his injury and awarding Whisenant temporary total and permanent partial disability benefits based on an average weekly wage of $150. Regarding the average weekly wage, the trial court’s judgment states, in pertinent part:

“[Tjhere was no dispute as to the fact that [Whisenant] worked for [Bynum] for 28 to 31 days per year as [Whisen-ant] was directed to work by [Bynum] and earned a total of $1,000 per year. Because the § 25-5-57(b)[, Ala.Code 1975,] formula for determining average weekly earnings cannot be applied in this particular case, ‘the determination of the average weekly wage is “left to the sound judgment and judicial discretion of the trial court.” ’ Ex parte Fryfogle, 742 So.2d 1258, 1261 (Ala.1999). Here, dividing the $1000.00 per year payment by the days [Whisenant] worked establishes that [Whisenant] had an average weekly earning of $150.00 per week.
“... [Whisenant] worked for [Bynum] for the past 12 to 15 years. [Whisenant] helped build the barn for [Bynum’s] horses, and for the last couple of years [Whisenant] helped [Bynum] with the sales of the horses. [Whisenant] opened and closed the gate in the sale ring, he also helped put the horses in the ring and put horses that came in during the sale in pens.”

Bynum appeals.

Bynum contends that the trial court erred in determining Whisenant’s average weekly wage to be $150. Bynum contends that an average weekly wage of $150 is not supported by substantial evidence and that a reasonable view of the evidence supports an average weekly wage of $38.46. Although Whisenant did not file a cross-appeal, Whisenant essentially agrees with Bynum that an average weekly wage of $150 is not supported by substantial evidence; however, Whisenant argues that his average weekly wage was $327.85.

Bynum argues that the average weekly wage should be determined by dividing $1,000 by 26 weeks, resulting in the aforementioned $38.46. Bynum reasons that Whisenant’s $1,000 yearly earnings should be divided by 26 weeks instead of 52 weeks because, it says, Whisenant worked “every other week” and not “every week” in his capacity as an employee of Bynum.

Whisenant argues that an average weekly wage of $327.85 should be calculated as follows: $232.56 ($1,000 divided by 4.3 weeks) plus $95.29 ($4,954.91 for additional mechanic work divided by 52 weeks). Whisenant reasons that $1,000 should be divided by “4.3 weeks in a month,” apparently contending that the 28 to 31 days he was employed by Bynum during the year before his injury amounted to approximately 4.3 weeks of work.

The record reveals the following facts regarding Whisenant’s average weekly wage. Bynum is in the business of selling livestock, including horses, mules, and goats. Whisenant began his employment with Bynum in the 1980s as a gate tender. During the 52 weeks preceding the work-related injury, Whisenant earned $1,000 as a gate tender for Bynum. Whisenant’s job duties as a gate tender included opening and closing the gate at the stockyard for the sale of horses and livestock; Whisen-ant also handled the horses during the sales. Whisenant testified that he worked the second Monday and the fourth Saturday of each month; he also worked the fifth Saturday of those months having a fifth Saturday. Whisenant also worked two additional days twice a year for a special sale.

Whisenant also owned and operated an automobile-mechanic shop, located at his residence, during the period of time he was employed by Bynum. Whisenant and his employees would perform mechanic work, including tune-ups and oil changes at the shop. Whisenant (or an employee of Whisenant) also performed work on equipment and vehicles for Bynum. Whi-senant testified that he performed work for Bynum at the automobile-mechanic shop and, at times, on-site (as far away as Mississippi). During the 52 weeks preceding the work-related injury, Bynum paid Whisenant $4,954.91 for mechanic work.

Whisenant prepared separate invoices for the mechanic work he performed for his customers (including Bynum), and he employed a bookkeeper at the automobile-mechanic shop to maintain the invoices. Bynum paid Whisenant separately for the mechanic work. Whisenant testified that at the time he began working for Bynum as a gate tender he also agreed to perform mechanic work for Bynum. Whisenant testified that because of his relationship with Bynum, he charged Bynum a reduced rate and gave Bynum priority over other customers. Whisenant reported his earnings (for federal income tax purposes) from the automobile-mechanic shop as earnings from a sole proprietorship. Whi-senant continued to operate the automobile-mechanic shop after the work-related injury occurred until April 2001. Whisen-ant testified that he was no longer able to perform the mechanic work because of the work-related injury that occurred while he was working for Bynum.

In a workers’ compensation case,“[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” § 25-5-81(e)(2), Ala. Code 1975; Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (holding that a trial court’s finding of fact will not be reversed if that finding is supported by substantial evidence, i.e., if that finding is supported by “evidence 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)). Our review of legal issues shall be without a presumption of correctness; § 25-5-81(e)(l) provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review ... shall be without a presumption of correctness.”

The section of the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, that governs the computation of “average weekly earnings” is § 25-5-57(b), Ala. Code 1975, which provides:

“(b) Computation of compensation; determination of average weekly earnings. Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6) of the injured employee in the employment in which he or she was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52, but if the injured employee lost more than seven consecutive calendar days during the period, although not in the same week, then the earnings for the remainder of the period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided results just and fair to both parties will thereby be obtained. Where by reason of the shortness of the time during which the employee has been in the employment of his or her employer or the casual nature or terms of the employment it is impracticable to compute the average weekly earnings as above defined, regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work by the same employer, and if there is no person so employed, by a person in the same grade employed in the same class of employment in the same district. Whatever allowances of any character made to an employee in lieu of wages are specified as part of the wage contract shall be deemed a part of his or her earnings.”

(Emphasis added.)

Section 25-5-1(6), Ala.Code 1975, provides, in pertinent part:

“(6) Wages or weekly wages. The terms shall in all cases be construed to mean ‘average weekly earnings’, based on those earnings subject to federal income taxation and reportable on the Federal W-2 tax form-”

At the outset, we note that the trial court, as reflected by the findings in its judgment, properly considered only the work Whisenant performed for Bynum in his capacity as an employee of Bynum and not the work Whisenant performed for Bynum in his capacity as a sole-proprietor mechanic in determining Whisenant’s average weekly wage. The trial court’s judgment does not mention the work that Whisenant performed for Bynum in his capacity as a sole-proprietor mechanic.

Section 25-5-57(b) provides that “[average weekly earnings shall be based on the wages, as defined in Section 25-5-1(6) of the injured employee in the employment in which he or she was working at the time of the injury .... ” (Emphasis added.) In Ex parte Fryfogle, 742 So.2d 1258 (Ala.1999), our Supreme Court rejected an argument that § 25-5-57(b) required that an injured worker’s wages from a second job be included in determining the average weekly wage for the purpose of calculating the workers’ compensation benefits for which the injured worker’s primary employer was liable:

“The plain meaning of the various pertinent provisions of the Workers’ Compensation Act is that the injured employee’s ‘average weekly wage’ is calculated by using the wages earned from the employer that directed the injured employee at the time of the injury.”

Ex parte Fryfogle, 742 So.2d at 1261.

Additionally, we note that the plain language of § 25-5-1(6) provides that the “average weekly earnings” are to be “based on those earnings subject to federal income taxation and reportable on the Federal W-2 tax form.” The wages that Whisenant earned in his capacity as an employee of Bynum (i.e., the $1,000 gate-tender wages) would properly be reportable on a federal W-2 tax form reflecting Bynum as the employer and Whisenant as the employee, while the earnings Whisen-ant received in his capacity as a sole-proprietor mechanic would not be properly reportable on a federal W-2 tax form. Whisenant admitted that he operated his automobile-mechanic business as a sole proprietorship and that he, in fact, properly reported the earnings from that business as income from a sole proprietorship for federal income tax purposes.

Next, with regard to Whisenant’s average weekly wage in his employment as a gate tender for Bynum, we must conclude that the record in this case does not support a determination of a $150 average weekly wage. It is unclear how the trial court made this determination. It appears that the trial court could have arrived at a figure close to $150 per week if it had treated the days Whisenant worked as an employee for Bynum over the course of a year as if those days had instead been worked consecutively during traditional work weeks, and had thus divided the total of 28 to 31 days by 5 (the number of days in a traditional work week), and had then divided the $1,000 Whisenant earned by the result (approximately 6 weeks). Such an approach, however, incorrectly treats Whisenant as if he were a full-time employee and places the same compensation burden on Bynum that it would bear in the case of a full-time employee. Indeed, the inappropriateness of treating the 28 to 31 days during which the employee worked as if they were worked consecutively instead of on a regular basis throughout the 52-week period during which they were actually worked is highlighted by the fact that this would, indeed, lead in this particular case to an average weekly wage of over $150. Because an average wage of $150 per week, when multiplied by 52 weeks, would yield an annual compensation level of $7,800, we would be basing Whisenant’s workers’ compensation benefits on a compensation level almost eight times that which he actually earned while healthy and working as an employee for Bynum. Indeed, under the trial court’s determination of Whisenant’s average weekly wage, Whi-senant’s compensation benefits under the Workers’ Compensation Act, even based on a 70% permanent partial disability, would total during the course of a year many times the $1,000 yearly wage Whi-senant received when he was actually working as an employee for Bynum. Based on the particular facts presented in this case, including the fact that the work of the employee in this case was performed on a regular basis throughout the 52-week period preceding his injury, we conclude that the trial court’s determination of a $150 average weekly wage is inconsistent with § 25-5-57(b).

Based on a careful reading of § 25 — 5—57(b), we conclude that, as a general rule, that section simply contemplates a division of an employee’s wages during the 52-week period preceding his or her injury by the actual number of weeks falling within whatever portion of that 52-week period he or she was employed. Based on the fact that the employee in the present case worked as an employee for Bynum on a regular basis throughout the entire year prior to his injury, we conclude that he was an employee of Bynum for the entire 52-week period and that the first portion of the second sentence of § 25-5-57(b) is applicable:

“Average weekly earnings shall be based on the wages ... of the injured employee ... during the period of 52 weeks immediately preceding the date of the injury divided by 52.”

Applying this provision to the present case, Whisenant’s average weekly earnings should be computed by dividing “the wages” he actually earned “during the period of 52 weeks immediately preceding the date of the injury,” in this case $1,000, by 52, resulting in an average weekly wage of $19.23.

We acknowledge that this figure is not the figure calculated by either party; however, we point out that the crux of the argument made by both parties is that the “$150 per week” figure computed by the trial court is not supported by substantial evidence.

Based on the foregoing, we reverse the judgment of the trial court, and we remand the cause for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      .Because the wrongful-termination claim remained pending at the time the notice of appeal was filed, this court remanded the cause to the trial court (see Foster v. Greer & Sons, Inc., 446 So.2d 605 (Ala.1984) (overruled on other grounds by Ex parte Andrews, 520 So.2d 507 (Ala.1987))) for the trial court to direct the entry of a final judgment. The trial court has complied with that directive by entering an order pursuant to Rule 54(b), Ala. R. Civ. P., and jurisdiction has now vested in this court.

      . We note that at the trial counsel for Bynum stated "$35.62” instead of "$38.46.” However, Bynum corrected that mathematical error in its brief to this court.

      . Bynum paid Whisenant $4,954.91 for mechanic work during the 52 weeks preceding the work-related injury (discussed infra).

      . The record is unclear as to when the additional four days were worked.

      . The record does not indicate that the nature of Bynum's business and the level of its business activity justified the hiring of Whisenant and/or other employees to perform the duties of a gate tender more frequently than two to three times a month. Accordingly, even if we conclude that Whisenant's employment could be considered of a “casual nature” for purposes of the fourth sentence of § 25-5-57(b) (an assumption that would be in tension with the periodic and regular nature with which Whisenant actually worked as an employee for Bynum), that sentence’s admonition that "regard shall be had to the average weekly amount which during the 52 weeks prior to the injury was being earned by a person in the same grade, employed at the same work” would not support an average weekly wage at the level determined by the trial court.

      . To further illustrate, suppose Whisenant had only worked during the last half of the year prior to his injury, but had still been paid $1,000. Under the third sentence of § 25-5-57(b), which provides, in part, that ''[w]here the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed,” Whisenant’s $1,000 would be divided by 26 weeks for an average weekly wage of $38.46. However, because in this case Whisenant earned the $1,000 for regular, periodic work spread out over a 52-week period, dividing his wages by only 26 weeks would in effect yield his "average biweekly wage” during the year (i.e., $38.46), not his "average weekly wage.”


text:
    WILLIAMS POWER, INC. v. Anthony Wayne JOHNSON.
    2011185.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.

      Rudene S. Oldenburg and Michael Anthony Shaw of Luther, Oldenburg & Rai-ney, P.C., Mobile, for appellant.
    Richard E. Browning, Mobile, for appel-lee.
   MURDOCK, Judge.

Williams Power, Inc. (“Williams Power”), appeals from a judgment entered against it by the Mobile Circuit Court in which the court awarded Anthony Wayne Johnson workers’ compensation benefits for an on-the-job injury to his back and ordered Williams Power to pay all past and future medical expenses incurred by Johnson for treatment of the injury. We dismiss the appeal.

Johnson initially filed the complaint in this action on February 20, 2001. A bench trial was held on June 7, 2002, at which Johnson and a vocational expert for each party testified. Deposition testimony and medical records of doctors who evaluated Johnson also were admitted into evidence. The trial court entered its judgment on June 27, 2002, making findings of fact and reaching conclusions of law.

The trial court determined, after weighing conflicting medical evidence, that, on January 6, 2001, Johnson sustained an injury at work and that Johnson had sustained a 65% loss of earning capacity due to the injury. The trial court also determined that Johnson had been temporarily totally disabled from January 8, 2001, until June 19, 2001, when Dr. Robert Zarzour declared him to have reached maximum medical improvement. Accordingly, the trial court awarded Johnson $12,288.86 in temporary total disability benefits. The trial court also awarded Johnson $220 per week in permanent partial disability benefits beginning on June 19, 2001, determining that Williams Power owed Johnson $11,440 in past-due permanent partial disability benefits as of the date of the trial court’s judgment, as well as $220 per week for the remaining 224.86 weeks until the benefits have been paid in full. The trial court also required Williams Power to pay for any future medical expenses incurred by Johnson as a result of the January 6, 2001, injury. Finally, the trial court ordered “that the defendant, Williams Power Corporation, shall reimburse the plaintiff for any and all medical expenses already paid by him,” but it did not specify an amount. Williams Power appeals.

After the trial court entered its judgment on June 27, 2002, Williams Power filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial, in which it argued that no evidence had been introduced at trial regarding Johnson’s past medical expenses. The trial court denied that motion on August 16, 2002. Johnson then filed a “Motion to Order Payment of Medical Expenses” on August 19, 2002, and attached to the motion multiple exhibits consisting of medical bills, receipts, and canceled checks showing how much Johnson had spent on treatment for his back injury. Before that motion was ruled on, Williams Power filed its notice of appeal to this court on August 28, 2002.

Although neither party has questioned this court’s appellate jurisdiction, we must consider whether we have jurisdiction over this appeal because “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).

“It is well established that a final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages unth specificity for a sum certain determinable unthout resorting to extraneous facts.

Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (“Where the amount of damages is an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.”). In this case, the amount of damages pertaining to past medical expenses was not specified by the trial court, and, thus, the appeal has been taken from a nonfinal judgment.

In GAF Corp. v. Poston, 656 So.2d 1225 (Ala.Civ.App.1995), the issue before this court was the payment of medical expenses for the medical treatment rendered to the employee for his work-related injury. This court explained that “the trial court specifically detailed the periods of treatment and the corresponding amount of expenses; however, only a few of these amounts are reflected in the exhibits the worker submitted as evidence of the amount of medical expenses.” Poston, 656 So.2d at 1228. This court concluded:

“Although the trial court did not err in its findings regarding the company’s liability for the medical treatments performed by Dr. Rodning, we are unable to determine if the trial court determined the correct amount of medical expenses from the record. We remand the cause for the trial court to determine the proper amount of medical expenses which are supported by the record.”

Poston, 656 So.2d at 1228.

Unlike Poston, in the present case the trial court did not make an award of a sum certain for past medical expenses. Therefore, its order was not a final judgment. A nonfinal judgment will not support an appeal. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998). We therefore dismiss the appeal.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . Although Williams Power also asserts this argument on appeal, our review of the record reveals that there was evidence before the trial court of Johnson’s past medical expenses. The record contains interrogatory answers, exhibits to depositions, and other documents (including, for example, copies of invoices and other statements from physicians and other various medical service providers) that reflected Johnson's past medical expenses; these interrogatory answers, exhibits to depositions, and other documents were admitted into evidence at the outset of the trial.


text:
    Jacqueline Ann COX v. Gordon Eugene COX.
    2011281.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.

      Richard L. Chancey of Ezell & Chancey, LLP, Phenix City, for appellant.
    James P. Graham, Jr., The Graham Legal Firm, Phenix City, for appellee.
   MURDOCK, Judge.

Jacqueline Ann Cox (“the wife”) appeals from a judgment entered by the Russell Circuit Court relieving Gordon Eugene Cox (“the husband”) of responsibility for paying the indebtedness on a house awarded to the wife in the parties’ 1995 divorce judgment.

The divorce judgment awarded the wife the marital residence located in Phenix City. Specifically, the judgment stated: “That the [wife] is awarded the home of the parties located at 18 Woodcrest Drive, Phenix City, Alabama with the [husband] to pay the outstanding indebtedness thereon.” The wife lived in the residence from 1995 until 2001.

On April 19, 2001, the wife filed a petition for a declaratory judgment, seeking an order declaring the rights and obligations of the parties as to the property in question, i.e., the former marital residence, as well as each party’s right to any proceeds that might be derived from a sale of that property by the wife. The wife alleged that she desired to sell the property and that the husband should have to pay the outstanding indebtedness owed on the property at the time the property was sold, based on the paragraph in the divorce judgment that awarded her the property. The trial court held a hearing on the petition on November 30, 2001. The parties stipulated to the following facts:

After filing her declaratory-judgment action, the wife did, in fact, sell the property to the parties’ youngest adult son for the sum of $100,000. With the proceeds from the sale of the property, the wife paid in full two mortgage loans secured by the property — a mortgage loan from First Union Mortgage Company with an outstanding balance of $18,905.78 and a second mortgage from DB & T Bank of Russell County with an outstanding balance of $19,354.41 — that had existed at the time of the original divorce proceedings and that were still outstanding at the time she sold the property. The husband had paid the monthly mortgage payments on each of those loans from the time of the divorce judgment until the property was sold. The wife retained the sum of $56,028.74 from the sale of the property.

On August 7, 2002, the circuit court issued its order denying the wife’s petition for declaratory relief, finding that the husband’s obligation under the divorce judgment to pay the indebtedness on the property no longer existed because the wife had sold the property. On September 6, 2002, the wife filed a motion for a new trial; the trial court denied the motion on September 9, 2002. The wife filed a timely appeal.

Because the facts in this case are undisputed, and because the trial court based its decision solely on its interpretation of the divorce judgment, we review the trial court’s judgment without a presumption of correctness. See, e.g., Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996) (“[Wjhere the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.”).

At the November 30, 2001, hearing, the circuit court expressed the reasoning for its ruling:

“When [Judge Miller] awarded the house — as a general rule, when we award a piece of property, and we order the other person to pay the indebtedness that carries the connotation that— and normally, if there’s any real discussion or any real reason to believe the house will be sold, if that is contemplated then, normally, we’ll put in there what is to be done with it.
“I really think that Judge Miller thought here that [the wife] was awarded the house, she was going to have to have somewhere to live, and [the husband] was going to pay for it as long as she was there. Now, that’s generally the way it goes. And [that] means she’s awarded any of the equity in the home place. And then when a piece of realty such as this is sold, then the proceeds from the sale pay any indebtedness because it couldn’t be sold unless that indebtedness was paid unless the purchaser agreed to assume the indebtedness —
“So I really think that she’s entitled to all the equity in the house and that at the sale of the house then the proceeds from the sale extinguish any outstanding debt at the time.”

The wife contends that the language of the divorce judgment awarded her the property outright, rather than awarding her possession of the property until such time as it was sold. In support of this contention, the wife cites Johns v. Johns, 473 So.2d 517 (Ala.Civ.App.1985), and Marshall v. Marshall, 582 So.2d 571 (Ala.Civ.App.1991).

In Johns, the parties were divorced in 1983 and the divorce judgment included a provision pertaining to an automobile; that provision stated, in pertinent part:

“ ‘That all right, title and interest in and to ... [the] 1982 Cutlass stationwagon or any other automobile the parties may trade said vehicle for, is hereby divested out of the [husband] and vested in the [wife]. [The husband] is ordered and directed to be responsible for and pay all outstanding mortgages and indebtedness against said personal property. ...”

473 So.2d at 518.

Two weeks after the divorce judgment was entered in Johns, the husband was involved in an accident while driving the 1982 Cutlass, and the automobile was totally destroyed. Insurance coverage paid for the loss, and the husband subsequently purchased a Volkswagen Rabbit automobile. The wife “borrowed” the Volkswagen Rabbit from the husband for use over a holiday weekend and never returned it. The wife subsequently petitioned the court for an order requiring the husband to pay any outstanding indebtedness owed on the Volkswagen Rabbit. The trial court ordered the husband either to pay the wife the value of the 1982 Cutlass before it was wrecked and for the wife to return the Volkswagen Rabbit to the husband, or for the wife to keep the Volkswagen Rabbit and for the husband to pay the outstanding indebtedness owed on that vehicle. Id. This court affirmed the trial court’s judgment, reasoning that the clear intent of the divorce judgment was that the husband would provide the wife with the 1982 Cutlass or another automobile and that the wife would not be obligated to pay any indebtedness on the vehicle. 473 So.2d at 519.

Marshall involved substantially similar facts to those of Johns. In Marshall, the husband and the wife were divorced in 1987, and the divorce judgment contained the following provision pertaining to the parties’ automobile: “‘The Wife shall be the sole and absolute owner of her automobile, a 1987 Lincoln Town Car. The Husband shall be solely responsible for any indebtedness on said automobile and for maintaining automobile insurance for and on behalf of the Wife....’” 582 So.2d at 572.

In 1990, the wife was involved in an accident while driving the 1987 Lincoln Town Car, and the automobile was totally destroyed. A third-party insurance company settled the damage claim in an amount that paid off the indebtedness owed on the automobile. The wife petitioned the court for an order requiring the husband to pay her the money he would have been required to pay on the automobile had the automobile not been destroyed. The trial court granted the wife’s petition, relying directly upon Johns for its rationale. This court affirmed the trial court’s judgment, adopting the trial court’s order as its own opinion in the case.

Though not cited by the parties, a third case with similar facts that cites both Johns and Marshall is Ravenel v. Ravenel, 835 So.2d 1069 (Ala.Civ.App.2002). In Ravenel, the parties were divorced in 1994. The divorce judgment awarded a 1992 Mazda truck to the husband, stating in pertinent part:

“‘The [husband] is hereby awarded all right, title, and interest in and to the 1992 Mazda truck, and the [wife] is hereby divested of any and all interest in and to the same. The [wife] agrees to assume and pay for the debt on said truck in favor of Redstone Federal Credit Union, and shall indemnify and hold harmless the [husband] for the same....’”

835 So.2d at 1070.

The truck was stolen and subsequently destroyed; the husband’s automobile-insurance company declared the truck a total loss and discharged the remaining indebtedness owed on the truck. In 1998, the husband petitioned the trial court requesting that the wife be ordered to pay him an amount equal to the outstanding indebtedness owed on the Mazda truck at the time it was stolen. The trial court denied the husband’s petition. This court reversed, determining that “the plain language of the divorce judgment indicates that the trial court envisioned that the [husband] would receive the 1992 Mazda truck free and clear of all encumbering debt as of the September 1994 date of the divorce judgment.” 835 So.2d at 1072 (footnote omitted). This court reasoned that the wife had been relieved of the responsibility to pay the indebtedness on the automobile only through the efforts of the husband’s maintaining insurance on the truck and his filing a claim for the loss of the truck after it was stolen. Thus, “[a]s between the two parties before the trial court in this case, the divorce judgment clearly requires the [wife], not the [husband], to discharge the debt on the Mazda truck.” Id. at 1073.

“Judgments are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties.” Allen v. Allen, 386 So.2d 1176, 1177 (Ala.Civ.App.1980). “The words of a judgment are to be given their plain and ordinary meanings, and the intentions of the parties are derived from them.... ” Hallman v. Hallman, 802 So.2d 1095, 1098 (Ala.Civ.App.2001).

The divorce judgment in this case states that the wife “is awarded the home of the parties” and that the husband is “to pay the outstanding indebtedness thereon.” The plain language of the judgment gives the wife the ownership of the home, not merely the equity in the home as the trial court ruled. The plain language of the judgment also places on the husband the responsibility for paying the indebtedness owed on the property; it does not state, as the trial court attempts to construe it, that he is responsible for paying that indebtedness only as long as the wife does not sell the property. The trial court reads into the language of the judgment something that is not there, i.e., that the obligation of the husband to pay the indebtedness would be extinguished if and when the wife sold the property.

While the wording of the provision in the divorce judgment in the present case pertaining to the residential property is not exactly the same as the wording of the provisions pertaining to the property at issue in Johns, Marshall, and Ravenel, those cases support the result we reach in the present case. In Johns, Marshall, and Ravenel, the divorce judgment awarded to one party the ownership of certain property and placed on the other party the responsibility for paying certain indebtedness related to that property. Just as the availability of insurance proceeds in Johns, Marshall, and Ravenel did not relieve the latter party of the responsibility for paying that indebtedness, the availability of proceeds from the sale of the property in the present case does not relieve the husband of the responsibility for paying the indebtedness imposed upon him in the parties’ divorce judgment.

In the present case, the wife was awarded the property. The husband was ordered to pay the outstanding indebtedness on the property. Based on the plain language of the divorce judgment, we conclude that the trial court’s judgment denying the wife’s petition for declaratory relief and relieving the husband of his debt obligation is due to be reversed. The cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

      . The divorce judgment was issued by Judge J. Paul Miller, Jr., who has retired. The present case was heard by Circuit Judge Albert L. Johnson.