text:
    Linda THOMAS, Appellant, v. PASCAGOULA MUNICIPAL SEPARATE SCHOOL DISTRICT and Reliance National Insurance Company, Appellees.
    No. 2002-WC-00898-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Floyd J. Logan, Gulfport, attorney for appellant.

      Kelly Pendergrass Dees, Karl R. Stein-berger, Pascagoula, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Linda Thomas was denied compensation benefits for a claimed work-related back injury when the Mississippi Workers’ Compensation Commission concluded that she had failed to carry her burden of showing that her alleged disabling injury was traceable to an on-the-job accident. Thomas appealed that decision without success to the Jackson County Circuit Court and now asks this Court to reverse the decision of the circuit court. We affirm.

I.

Facts

¶ 2. Thomas was employed by the Pasca-goula Municipal Separate School District as a custodian. Her duties included cleaning classrooms and the gymnasium, waxing and buffing the floors, and performing other janitorial functions. Thomas claimed that in December 1997 she slipped and fell on a recently-mopped gymnasium floor. No formal report of the fall or claim of injury from the fall was filed at the time. Thomas continued to work the remainder of the afternoon. In fact, she continued in her employment without reporting any physical problems related to her fall until late January 1998, when she voluntarily left employment for reasons unrelated to her physical condition. (Thomas had ended her employment when her request for transfer to another school within the employer’s system was denied.)

¶ 3. Thomas testified at the hearing that she began to feel pain in her back and left leg at some point after the fall. Expert medical testimony established that the time at which pain symptoms manifested themselves was critical to establish a causal connection between Thomas’s fall and the onset of symptoms of pain. On this key point the record shows that, on different occasions, Thomas gave widely inconsistent reports of when her pain symptoms first began, ranging from as long as “days, maybe weeks later” to a medical history offered to one treating physician in which she claimed that she was unable to ever return to work after her fall.

¶ 4. After leaving employment, Thomas was diagnosed with a herniated disc and underwent surgery. The operating physician, Dr. Thomas J. McCloskey, offered the view that, after reaching maximum medical improvement following surgery, Thomas had suffered a ten percent permanent partial disability to the body as a whole. Thomas’s contention in this proceeding is that her back condition that required surgery was proximately caused by the fall at work in December 1997. The Commission concluded that Thomas had failed to meet her burden of showing by a preponderance of the evidence that the fall at work either caused the herniated disc or exacerbated existing back problems that, until that time, had not been of sufficient severity to adversely affect her ability to perform the duties of her job. On that basis, her claim for compensation benefits was denied.

II.

Discussion

¶ 5. A claimant in a worker’s compensation case has the burden of proving the following elements: 1) accidental injury; 2) arising out of and in the course of employment; and 3) a causal connection between the injury and the claimed disability. Hedge v. Leggett & Platt, Inc., 641 So.2d 9,18 (Miss.1994).

¶ 6. There is no legitimate dispute that Thomas suffered from a herniated disc of sufficient severity that surgical repair of the damaged disc was required. There is, likewise, no dispute between the parties as to the validity of Dr. McClos-key’s post-operative opinion concerning the degree of permanent partial impairment to Thomas’s ability to function physically in her post-operative condition. The pivotal issue before the Commission' — and the one this Court is called upon to consider under the applicable standard for judicial review for such matters — is whether Thomas met her burden of proving that her fall at work either caused the herniated disc or substantially aggravated an existing back condition that previously had not been of sufficient severity to impair her ability to perform the normal duties of her job.

¶ 7. Thomas relies heavily on the deposition testimony of Dr. McCloskey to support the notion that she offered compelling proof that her back problems were either caused or substantially aggravated by the incident at work in December 1997. It is true that, initially, Dr. McCloskey testified that, “Well, you know, consistent with the history that she gave me, you know, she ... she had pre-existing back problem which was made a lot worse by the fall at the Exceptional School.” However, during cross-examination, Dr. McCloskey indicated his agreement with the proposition that, if the herniation of the disc was caused by a traumatic event such as the fall described by Thomas, she would have experienced a very rapid onset of pain. It was further developed, during the course of cross-examination, that Thomas had offered a medical history to Dr. McCloskey that included an assertion that she had been unable to return to work at any time after the fall occurred and that Dr. McCloskey had interpreted that to mean that the commencement of pain symptoms immediately followed the accident. When confronted with information given by Thomas in other settings that her pain symptoms had not begun to manifest themselves until days or even weeks after the accident and that she had, in fact, continued to work in her same job until she voluntarily ended her employment weeks later for reasons not related to her medical condition, Dr. McCloskey effectively conceded that such a scenario was inconsistent with the idea that the fall had caused the herniated disc.

¶ 8. The employer presented additional competent evidence from another examining physician, Dr. Bernie McHugh, who offered the opinion that “it’s with a reasonable degree of certainty that the herniated disc did not occur at the time of the fall that the patient reported in December.” Dr. McHugh went on to explain that a herniated disc caused by a sudden traumatic event typically “results in a significant neurological deficit and is an emergency.” He found the medical history following the fall and Thomas’s own testimony that there was no immediate onset of pain to be factors inconsistent with her theory of the cause of her herniated disc.

¶ 9. The Commission, taking into consideration a number of factors, including (a) inconsistencies in the claimant’s evidence, (b) the fact that her treating physician’s original opinion regarding the relationship between the fall and the disc injury was based in part on an incorrect patient history, (c) the fact that the period between the fall and the claimant’s assertion of when she began to experience pain was inconsistent with her claim based on the professional opinion of two doctors, and (d) the extended period of time between the fall and Thomas’s first assertion that the fall caused her back problems, determined that Thomas had failed to carry her burden of proof of showing by a preponderance of the evidence the necessary causative link between her fall at work and her back problems.

¶ 10. We undertake only a limited review of the Commission’s actions in regard to resolving disputed issues of fact and are not to interfere if we are satisfied that there is substantial evidence in the record to support the Commission’s determination. Marshall Durbin Co. v. Warren, 633 So.2d 1006, 1010-11 (Miss.1994). We do not re-weigh the evidence and are not authorized to substitute our own judgment of where the more persuasive weight of the evidence might lie. Lanterman v. Roadway Exp. Inc., 608 So.2d 1340, 1345 (Miss.1992). Generally, the issue of establishing the necessary link between an occurrence at work and a later-ensuing disability must be supplied by the expert testimony of a health care provider. Davis v. Scotch Plywood Co. of Miss., 505 So.2d 1192, 1196 (Miss.1987). In this case, the expert evidence showing a connection between Thomas’s fall at work and her herniated disc was, when viewed in its entirety, not particularly persuasive. On the other hand, the Commission heard competent opinion evidence that Thomas’s disc injury was not caused by a work-related accident. In this situation, we are satisfied that there is substantial evidentia-ry support for the proposition that Thomas did not carry her burden of showing that her back injury arose out of an incident connected with her employment. In that situation, based on our limited scope of review, our obligation is to uphold the decision of the administrative body charged by law with making such determinations.

1111. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


source: Caselaw Access Project

author: MYERS, J., SOUTHWICK, P.J.,

license: Public Domain

text:
    TALLY ARMS CONDOMINIUM ASSOCIATION, INC., Appellant, v. Norman BRELAND and Whitney National Bank, Appellees.
    No. 2002-CA-00396-COA.
    Court of Appeals of Mississippi.
    Sept. 2, 2003.

      James L. Gray, Picayune, attorney for appellant.
    John M. Harral, Jackson, Norman L. Breland, Gulfport, attorney for appellant.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the court.

¶ 1. The dispute arises from an inter-pleader action. After certain property was sold and funds distributed to the priority lienholder, there were insufficient funds to pay all the junior hens. The remaining funds, totahng $16,377.68, were paid into the court and the court distributed the funds according to its determination of priority. Tally Arms Condominium Association, Inc. (Tally Arms) claimed $14,242.60 plus attorneys fees and costs of at least $2,000. Whitney National Bank (Whitney) claimed $27,892.22. Tally Arms was awarded $1,681.00, and Whitney was awarded $14,696.63. Tally Arms appeals the decision asserting:

THE TRIAL COURT ERRED IN DETERMINING THAT TALLY ARMS SUBSEQUENT LIENS OF ASSESSMENT DID NOT HAVE PRIORITY OVER WHITNEY’S LIEN.

STATEMENT OF FACTS

¶ 2. Norman Breland was a condominium owner. On June 2,1992, Norman Bre-land executed a deed of trust on his condominium in favor of Deposit Guaranty for a $48,000 loan. On November 13, 1995, Tally Arms filed a condominium assessment for $1,681, which included language concerning additional interest, costs, attorneys fees, and accrual of successive unpaid monthly assessments against Breland’s condominium.

¶ 3. On January 26, 1996, Tally Arms sued Breland in justice court seeking $2,317 in unpaid assessments but not seeking foreclosure. On February 26, 1996, a default judgment in favor of Tally Arms against Breland for $2,317 plus $50 court costs was entered in justice court. Bre-land appealed to county court on March 20, 1996. Tally Arms filed a declaration action on April 24, 1996, still without seeking judicial foreclosure.

¶ 4. On July 26, 1996, a second deed of trust from Breland was executed, this time in favor of Merchants Bank for $23,000. This deed of trust was recorded on August 20,1996.

¶ 5. On November 12, 1996, Tally Arms filed a one year extension of the original $1,381 lien and added an additional filing of $2,364 for later assessments and costs. On January 17, 1997, Tally Arms filed a motion in the circuit court action against Breland to amend the complaint in order to seek foreclosure. The circuit court allowed the amended complaint on June 5, 1998. In each of the following years,1997, 1998, 1999, and 2000, Tally Arms filed assessments for the prior years.

¶ 6. On May 4, 2001, MERSI and Shapiro and Massey, which had taken over the first deed of trust from Deposit Guaranty, foreclosed on the condominium. The sale brought $69,000, leaving only $16,377.63 for junior lienholders after MERSI’s deed of trust and sale costs were paid. MERSI and Shapiro and Massey petitioned to pay the money into the court by interpleader. MERSI and Shapiro and Massey are now no longer part of the action. Whitney, the successor to Merchants Bank’s deed of trust received $14,696.63 and Tally Arms received $1,681.00.

LEGAL ANALYSIS

¶ 7. This ease turns on the interpretation of Mississippi Code Annotated Section 89-9-21 (1972). It reads in part:

The amount of any such assessment plus any other charges thereon, such as interest, costs, attorneys’ fees, and penalties, as such may be provided for in the declaration of restrictions, shall be and become a lien upon the condominium assessed when the management body causes to be recorded in the office of the chancery clerk of the county in which such condominium is located a notice of assessment, which shall state the amount of such assessment and such other charges thereon as may be authorized by the declaration of restrictions, a description of the condominium against which the same has been assessed, and the name of the record owner thereof.... Such lien shall be prior to all other liens recorded subsequent to the recordation of said notice of assessment except that the declaration of restrictions may provide for the subordination thereof to any other liens and encumbrances. Unless sooner satisfied and released, or the enforcement thereof initiated as hereafter provided, such lien shall expire and be of no further force or effect one year from the date of recordation of said notice of assessment; provided, however, that said one-year period may be extended by the management body for a time not to exceed one additional year by recording a written extension thereof.

¶ 8. The condominium assessment lien is valid for one year unless enforcement is initiated or a one year extension is filed. Tally Arms properly filed the one year extension prior to the expiration of the one year lien. Tally Arms’s original lien was filed in November 1995 and was renewed in November 1996. This gave Tally Arms until November 1997 to initiate foreclosure. By the January 17, 1997 request to amend the complaint against Breland to seek foreclosure, Tally Arms properly initiated foreclosure, even though the request was not granted till June 1998. Pursuant to Mississippi Rules of Civil Procedure 15, the granting of the motion to amend a pleading allows the amended pleading to relate back to the original pleading. Thus, Tally Arms initiated foreclosure proceedings prior to the expiration of the one year extension of the condominium lien.

¶ 9. While we agree with Tally Arms that it did seek foreclosure prior to the expiration of the lien, we disagree with its argument that it is entitled to more than its original lien amount. The tidal court found no authority that allows a condominium assessment to include language that could encompass all later unfiled assessments. Tally Arms fails to direct us to any authority that allows such additions for condominium liens. While the argument that the filing need only give notice is interesting, the statute is specific in what the hen filing shah state. Accordingly, we affirm.

¶10. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

KING, P.J., BRIDGES, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY MCMILLIN, C.J., LEE AND IRVING, JJ., THOMAS, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

dissenting:

¶ 11. We must identify the debt secured by the lien that is created when a condominium association files a notice of assessment. The majority holds that it is only the amount of delinquent monthly payments as of the time of the filing. However, in my view the majority has not properly analyzed the meaning of “assessment” under the statute. The assessment is the entire amount due for the year. The statute explicitly provides that the hen created by the filed notice applies to the “assessment.” Therefore, the filing of notice of delinquency creates a lien for any part of the annual assessment not yet paid. Respectfully, I believe the majority confuses the installment payments — only some of which may have come due by the time of the notice — with the annual assessment itself.

¶ 12. The trial judge awarded $1681, the exact amount owing in November 1995 when the Tally Arms Association filed notice of assessment. He found that the installment due in December and all subsequent ones were beyond the hen’s coverage. The majority affirms that interpretation of the reach of the lien. I find that the lien extended one month further than this. Though the difference is small in this case, that is only because the notice of hen was filed near year’s end. I would modify the judgment entered below to add the December 1995 installment of $197 to the lien, for a total hen of $1878. I would then affirm the judgment as modified.

¶ 13. Both the majority and this opinion are unable to cite much precedential support for the conflicting interpretations that we give to the condominium statute. The statute was adopted in 1964.1964 Miss. Laws, ch. 270. It was part of the first generation of condominium statutes passed almost immediately after the Federal Housing Administration was authorized in 1961 to insure mortgages on condominium units. Lawrence E. Alison, Jr., “The Mississippi Condominium Act: An Analysis of Potential Problems,” 44 Miss. L.J. 261, 262-63 cmt.(1973).

¶ 14. Had the enactment been based on a uniform or model act with commentary, our analysis could have been informed by those comments. The only discovered possibility was a model act prepared by the FHA; the Mississippi legislature did not use it. Instead, the Mississippi act is a close copy of the California condominium enactment of 1963. 1963 Cal. Laws ch. 860. When there is evidence that the legislature consciously adopted another state’s laws, then under the “borrowed statute” doctrine the legislature might also be found to have adopted the sister state’s prior interpretations. Crosby v. Alton Ochsner Med. Found., 276 So.2d 661, 664-65 (Miss.1973). The 1963 California act was too recent in 1964 for precedential baggage. Aso, there is no discovered record that the Mississippi legislature was aware that the language had already been utilized in California. Indeed, a different and common source for both states may have existed.

¶ 15. The foundation for understanding our condominium lien statute is its first sentence:

A reasonable assessment upon any condominium made in accordance with a recorded declaration of restrictions permitted by Section 89-9-17 shall be a debt of the owner thereof at the time the assessment is made.

Miss.Code Ann. § 89-9-21 (1972). The question is the meaning of the word “assessment.” The statute refers to the assessment being a “debt of the owner [of a unit] at the time the assessment is made.” As will be explained, this assessment is based on a calculation of common expenses, which then may be satisfied with periodic payments. A new assessment is not “made” after each payment.

¶ 16. Help in determining the correct interpretation of “assessment” may be found in the Condominium Act’s section on making assessments. Among the powers of a management body that may be set out in a declaration of restrictions on a condominium project are these:

(5)(i) For reasonable assessments to meet authorized expenditures of any management body, and for a reasonable method of notice and levy thereof, each condominium to be assessed separately for its share of such expenses in proportion, unless otherwise provided, to the owner’s fractional interest in any common area;
(ii) For the subordination of the liens securing such assessments to other liens either generally or specifically described.

Miss.Code Ann. § 89-9-17 (1972). There are several important phrases in this assessment authorization. Perhaps the most significant is “reasonable method of notice and levy” of the assessment. “Levy” has a variety of meanings, but I find the most apt are to “charge” and to “collect,” as to levy a tax. Black’s Law Dictionary 907 (6th ed.1990). Thus, the condominium association is statutorily authorized to decide the method of giving notice and collecting the assessment.

¶ 17. Also of importance is that the section which details the creating of the lien does not require that an assessment be delinquent before notice may be filed. It provides that the “amount of any such assessment ... shall be and become a lien upon the condominium” once notice of that assessment is sent to the chancery clerk’s office. Miss.Code Ann. § 89-9-21 (1972). The condominium lien book may be utilized much like an ad valorem tax record, indicating all the property and the amount of the charges, and then noting when the assessments are paid. Id. An association would be able to file notice of all unit owners’ individual total assessments at the beginning of each assessment year and then release the respective liens upon payments in full. Though the lien expires after one year, the right to renew for another year suggests the concept that associations would renew only for those units that did not pay in full at year’s end, though notice of all assessments would be filed at the beginning of the year. Even if an association just files after a delinquency occurs, as Tally Arms did here, this broader picture reveals what is gained by the filing. Tally Arms did not then state the full amount of the annual assessment and therefore the literal language of the condominium lien statute was not followed. No issue of that has been made. The notice did claim all future amounts.

¶ 18. I now turn to the declaration of restrictions for Tally Arms to determine what that entity decided about assessments. Paragraph XI of the declaration concerns assessments. There is an annual determination of costs that are then allocated to the various units and paid monthly. The assessment is a debt when made but timely installment payments prevent a delinquency from occurring. The total amount is the “assessment.” These are the relevant sections:

4. Assessments for common expenses shall be made for the calendar year annually in advance on or before the second Monday in December preceding for which the assessments are made and at such other and additional times as in the judgment of the Board of Governors [may be required.] Such annual assessments shall be due and payable in twelve (12) equal consecutive monthly payments on the first day of each month....
10. Lien for assessment. The unpaid portion of an assessment which is due shall be secured by a lien upon (a) The Dwelling unit and all appurtenances thereto when a notice claiming the lien has been recorded [in the chancery clerk’s office.] The Association, however, shall not, however, record such claim of lien until the assessment is unpaid for not less than twenty (20) days after it is due. Such a claim of lien shall also secure all assessments which come due thereafter, until the claim of lien is satisfied, except that such lien shall be subordinate to prior bona fide liens of record.

¶ 19. In summary, paragraph 4 labels the total annual charge against each condominium unit the “assessment” of that owner. A lien secures the “unpaid portion of an assessment,” according to paragraph 10. True, that paragraph also uses the shorthand of “assessment” for the unpaid portion of the total. Such lack of precision does not alter statutory rights, however.

¶ 20. I find Tally Arms’s declaration to be consistent with the statute. Section 89-9-21 makes the total assessment “a debt of the owner thereof at the time the assessment is made.” The next statutory sentence then provides that the “amount of any such assessment” and certain other charges become a lien on the condominium when “a notice of assessment” is filed for record in the chancery clerk’s office. The natural interpretation of that language is that the lien secures the entire annual assessment, since it became a debt of the condominium owner once the assessment was made. All of the assessment may not yet be due, but all is secured once notice is filed.

¶ 21. Therefore, I find little interpretive doubt that the statute permitted Tally Arms to create a lien for the entirety of the 1995 assessment. Notice was filed in November 1995 and the entire 1995 assessment was covered by the lien. The more difficult question is whether the next year’s assessment, which according to the declaration of restrictions quoted above should have been made in December 1995 to become effective January 1, 1996, was also secured and had priority over a deed of trust executed in 1996.

¶ 22. To resolve this next statutory issue, I start with what is evident. That next year’s assessment was a debt as of January 1, 1996. Miss.Code Ann. § 89-9-21 (1972) (“reasonable assessment ... shall be a debt of the owner thereof at the time the assessment is made”). No lien is created merely because of the debt; there must be a filing. The statute makes continuing reference to the single “assessment,” such as the requirement that a notice of release of lien must be filed if the management body received “payment of said assessment....”

¶ 23. The 1996 allocation of common expenses was a new assessment. I find that the statute itself does not create a lien covering future assessments merely by the notice being given of a delinquency on a previous assessment. It is true that the statute permits a renewal of the hen— whatever it covers — within one year after its initial filing. Presumably, a large percentage of the time when a condominium owner stops monthly payments on an assessment, that default will continue into the next assessment year. The legislature may have contemplated a continuing delinquency. Even if it did, the statute does not create a hen for that later year’s assessment from the filing of • the earlier notice. However, as already explained, the Association could have filed a new hen notice at the beginning of the next assessment year to secure the new allocation of common expenses on all units, a hen that would take its priority from the date of its filing.

¶ 24. This does not end the inquiry, however. Even if the statute does not by its own terms create a hen to secure a later assessment, may the condominium governing body effectively create that hen when the notice that it files specifically refers to later assessments? Here, the Tally Arms Association gave notice of the delinquency that existed as of November 1995, and then stated that “[successive unpaid monthly assessments shah accrue to the total amount of this lien.” The association used terminology that each monthly payment was an “assessment,” but insofar as what was statutorily authorized, the entire annual amount of allocated costs was secured by the lien. I find that the association was attempting to have the hen cover all future delinquencies, both on the current and on future assessments. Constructive notice of the association’s claim existed through the filing. We have to decide whether the notice’s constructive reach exceeded the association’s legal grasp.

¶ 25. Though the reference to “assessment” in section 89-9-21 does not include the new allocation of costs for 1996, we need to consider that the statute also allows the hen to include “other charges.” However, the plain language of the statute limits the other amounts to those which are derived from the assessment itself: the hen is in the “amount of any such assessment plus any other charges thereon, such as interest, costs, attorneys’ fees, and penalties,” as provided in the declaration of restrictions for the condominium association. Miss.Code Ann. § 89-9-21 (1972) (emphasis added). The assessment for the next year would not be a charge on the previous year’s assessment.

¶ 26. Having concluded that there is no statutory authorization for the language in Tally Arms’s notice that purported to extend the hen to ah later assessments, I now turn to whether there is a prohibition. There is no explicit language in the condominium statutes barring such coverage. Does the statute or anything else prohibit giving effect to a notice that by its language seeks to include future dehnquent assessments within the hen? In other words, even if the statute does not make such a hen automatic, does it make notice of such a hen ineffective?

¶ 27. There is no general statute applicable to all hens. There are numerous hen statutes that separately address specific categories of property and relationships with it. E.g., Miss.Code Ann. § 85-7-1 (Rev.1999 & Supp.2002). Other statutes discuss the priorities of security interests in real property. E.g., Miss.Code Ann. § 89-1-43 (Rev.1999) (mortgages and trust estates).

¶ 28. Finding no relevant statute, I turn to judicial precedents. One older case stated that “[a]h hens are created by law or by contract of the parties.” Hollis & Ray v. Isbell, 124 Miss. 799, 87 So. 273, 274 (1921), quoting 13 R.C.L. 133, § 55. In our case, an express provision of the declaration of restrictions provided that recorded notice “of lien shall also secure all assessments which come due thereafter, until the claim of lien is satisfied, except that such lien shall be subordinate to prior bona fide liens of record.” Tally Arms Declaration of Restrictions, § XI, 10(a). This declaration, which was part of the contract governing the relationship with condominium owners, created a contractual lien broader than the statutory one. When parties create contractual lien rights that extend beyond what is authorized by statute, those rights may be enforceable. Pincus v. Collins, 198 Miss. 283, 287-88, 22 So.2d 361, 362 (1945) (lien broader than statutory mechanic’s lien was enforceable), recognized as current law in Lindsey v. Lindsey, 612 So.2d 376, 379 (Miss.1992).

¶ 29. What Pincus does not address is the priority of a contractual, non-statutory lien. It is one thing to state that the Association may have a lien against the condominium property for future annual assessments. It is quite another to state that the extended lien trumps a subsequently filed deed of trust. By statute, certain kinds of instruments have priority based on the date of their filing: “Every conveyance, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all creditors and subsequent purchasers” who do not have notice, as of the date of filing. Miss.Code Ann. § 89-5-5 (Rev.1999). Contracts regarding land also may be filed and thereafter are notice. Miss.Code Ann. § 89-5-7 (Rev.1999). The notice of condominium lien does not clearly fit within either of these two statutes.

¶ 30. More importantly than these other lien statutes, the condominium lien statute itself reflects a legislative limit on the priority of the condominium assessment lien. The legislature determined that the described condominium hen should have no force beyond two years from its initial filing, and the second year required that renewal notice be filed. Miss.Code Ann. § 89-9-21 (1972). A contractual broadening of these rights is inconsistent with the statutory limits on the lien.

¶ 31. In conclusion, I find that Tally Arms had priority for the entire amount of the 1995 assessment, both the payments due before the filing of the lien notice and the remaining small portion of that year’s unpaid assessment. I would add the December installment to the judgment.

¶ 32. However, I agree that to have obtained priority for the 1996 assessment over the competing and subsequently filed deed of trust, Tally Arms would have needed to file a new notice of assessment prior to the filing of the trust deed. It could have made that filing for all units at the beginning of the new assessment year. That entire 1996 assessment would then have had priority over any subsequently filed liens such as the Whitney Bank deed of trust. That did not occur.

McMILLIN, C.J., LEE AND IRVING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Cf. 1964 Miss. Laws ch. 270, with "Model Statute for Creation of Apartment Ownership,” issued as FHA Form 3285, reprinted in Penney & Broude, Land Financing: Cases & Materials 533-543 (2d ed.1977).

      . The first seven states adopted condominium statutes in 1961 and 1962. William K. Kerr, '‘Condominium — Statutory Implementation, ’ ’ XXXVIII St. John’s L.R. 1, 5 (1963). An examination of each act reveals that none of those, nor the F.H.A. model act, had language such as was used by California in 1963. Condominium acts were passed in 31 states in 1963. Id. I examined some but not all of those to determine if others also used the 1963 California language.


author: WOODALL, Justice.

text:
    Ex parte Sedina Lashay BRYANT. (In re Sedina Lashay Bryant v. State of Alabama).
    1011111.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Allen K. Mitchell, Dothan, for petitioner.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for respondent.
   WOODALL, Justice.

Sedina Lashay Bryant was convicted of unlawful possession of a controlled substance (i.e., cocaine), a violation of § 13A-12-212(a), Ala. Code 1975. The Court of Criminal Appeals affirmed the judgment of the trial court in an unpublished memorandum. Bryant v. State, (No. CR-00-1272, January 25, 2002) 854 So.2d 1215 (Ala.Crim.App.2002)(table). The Court of Criminal Appeals overruled Bryant’s application for rehearing on February 22, 2002, the same day this Court released its opinion in Ex parte Moffitt, 844 So.2d 531 (Ala.2002). We granted Bryant’s petition for certiorari review, because the Court of Criminal Appeals’ opinion conflicts with this Court’s decision in Moffitt. We reverse and remand.

Kenneth Edward Moffitt and Bryant were both convicted of unlawful possession of cocaine arising out of the same circumstances. An officer discovered and seized the cocaine pursuant to a warrantless entry into an apartment shared by Moffitt and Bryant. The facts surrounding the officer’s warrantless entry into the apartment were stated in Moffitt; we will not repeat them. In Moffitt, we held that the warrantless entry was unlawful because, “[a]fter reviewing the undisputed facts, we conclude[d] that the State did not carry its burden to show the existence of probable cause.” Moffitt, 844 So.2d at 534. Therefore, we held that the trial court had erred in denying Moffitt’s motion to suppress the evidence of the cocaine, and that the Court of Criminal Appeals had erred in affirming the trial court’s judgment.

Bryant filed a motion to suppress the same cocaine evidence, which, she argued, was seized pursuant to an illegal warrant-less entry into her apartment. For the same reasons expressed in Moffitt, we must conclude that the trial court erred in denying Bryant’s motion to suppress the cocaine evidence, and that, therefore, the Court of Criminal Appeals erred in affirming the trial court’s judgment. The judgment of the Court of Criminal Appeals is reversed, and this case is remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, JOHNSTONE, and HARWOOD, JJ., concur.

MOORE, C.J., and BROWN and STUART, JJ., dissent.


author: McMILLAN, Presiding Judge.

text:
    Sedina Lashay BRYANT v. STATE.
    CR-00-1272.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Allen Kenneth Mitchell, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   After Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

Pursuant to the opinion of the Alabama Supreme Court in Ex parte Bryant, 854 So.2d 36 (Ala.2002), the prior judgment of this court has been reversed. Therefore, we reverse the judgment of the trial court and remand this cause to the trial court for proceedings consistent with the Supreme Court’s opinions in Ex parte Bryant, 854 So.2d 36 (Ala.2002), and Ex parte Moffitt, 844 So.2d 531 (Ala.2002).

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: HARWOOD, Justice.

text:
    Ex parte Donald TONEY. (In re Donald Toney v. State of Alabama).
    1010696.
    Supreme Court of Alabama.
    Oct. 4, 2002.

      Jerry Lee Hicks, Huntsville, for petitioner.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for respondent.
   HARWOOD, Justice.

Donald Toney entered a plea of guilty to second-degree theft on June 14, 1999; he was sentenced to 10 years’ imprisonment. That sentence was split and Toney was ordered to serve two years’ imprisonment. See § 15-18-8, Ala.Code 1975. The balance of the sentence was suspended, and he was placed on probation for five years. One of the conditions of his probation was that he not to leave the State of Alabama without the permission of his probation officer.

On March 12, 2001, Toney was arrested for allegedly violating his probation. At his probation-revocation hearing, the State elicited testimony from a probation officer to the effect that the officer was present in the probation office when agents from a Tennessee car dealership identified Toney from a photograph as the person who had purchased an automobile in Tennessee. Based on this evidence, the trial court found that Toney had left the State of Alabama without permission, and, based on that violation, it revoked Toney’s probation. Toney appealed, arguing that the testimony was based on inadmissible hearsay; the Court of Criminal Appeals affirmed, in an unpublished memorandum. Toney v. State, (No. CR-00-2211, Nov. 21, 2001) 851 So.2d 641 (Ala.Crim.App.2001) (table). Subsequently, Toney filed a petition for a writ of certiorari, which this Court granted.

The record shows that on May 81, 2001, a probation hearing was held at which T.C. Bill, a probation and parole officer for the State of Alabama, testified that he was present in the Huntsville office of probation services when, “agents of a dealership in Brentwood, Tennessee came to the State of Alabama to recover a 2001 Lexus” automobile. Bill testified:

“They’d come to speak to Mrs. Morris, who was the supervising probation officer for Mr. Toney at the time, and she had a photograph of Mr. Toney. And they identified Mr. Toney as the man who had given them a piece of paper in exchange for taking the 2001 Lexus from Brentwood, Tennessee.
“... [M]y understanding is that Mr. Toney wrote a check on 10/10/2000 or some time after that date and presented that in payment for the 2001 Lexus and then drove it from the State of Tennessee to the State of Alabama.”

According to Bill, Toney never received permission to leave the State of Alabama. When asked if there was any other evidence other than what he heard or saw the agents do, Bill replied that there was not. No check or other writing relating to the alleged Lexus transaction was introduced into evidence, and no criminal charges had been filed against Toney arising out of the transaction involving the Lexus to show that Toney had been outside the State. Bill was the only witness to testify at the hearing. His testimony made it clear that his entire “understanding” of the situation was derived from statements made by agents of the car dealership.

Our analysis begins with an examination of hearsay under the Alabama Rules of Evidence. Rule 801, Ala. R. Evid., provides, in pertinent part:

“The following definitions apply under this article:

“(a) Statement. A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
“(b) Declarant. A ‘declarant’ is a person who makes a statement.
“(c) Hearsay. ‘Hearsay’ is a statement, other than one made by the de-clarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Rule 802, Ala. R. Evid., provides, in pertinent part:

“Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.”

However, Rule 27.6(d)(1), Ala. R.Crim. P., provides, in pertinent part, that at a probation-revocation hearing “[t]he court may receive any reliable, relevant evidence not legally privileged, including hearsay.”

In his brief to this Court, Toney argues that “ ‘[t]he use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.’ ” Quoting Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995). He also cites Mallette v. State, 572 So.2d 1316, 1317 (Ala.Crim.App.1990), and Chasteen v. State, 652 So.2d 319, 320 (Ala.Crim.App.1994), for the proposition that hearsay evidence cannot be the sole basis for revoking a defendant’s probation.

The State readily acknowledges the validity of Toney’s argument, stating in its brief to this Court:

“ ‘Hearsay evidence may be admitted [at a revocation hearing] in the discretion of the court....’ Puckett v. State, 680 So.2d 980, 981 (Ala.Crim.App.1996). It is well settled, however, that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.’ Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999).”

The State argues, however, that the trial court had nonhearsay evidence before it upon which to base its decision, namely, Bill’s testimony relating the agents’ identification of Toney. After acknowledging that “[hjearsay testimony consists of an out-of-court statement offered to prove the truth of the matter asserted,” the State notes that “[a] statement offered for some other purpose other than to prove the truth of the matter of its factual assertion is not hearsay.” The State attempts to fit Bill’s testimony within that exception by asserting:

“The State’s evidence against Toney was not entirely hearsay because Bill’s testimony that the agents from the car dealer came to his office and identified Toney as a person who had purchased a vehicle was not a factual assertion that Toney had gone into Tennessee. Instead, it was an assertion that agents from the car dealership identified Toney as someone who had come to the dealership, purchased a vehicle and drove the vehicle back to Alabama. Bill’s testimony that the agents made the statement was the only factual assertion made by Bill. This factual assertion was not hearsay because it was based upon Bill’s personal knowledge that the agents made the statement in his presence.
“Furthermore, Bill’s testimony did not constitute hearsay evidence because his testimony was not offered to prove the truth of whether Toney had gone to Tennessee to purchase the vehicle. It was offered to prove that Toney was identified by agents of the car dealership as the person who purchased the vehicle in Tennessee and drove it to Alabama.”

The Court of Criminal Appeals made this same analysis in its unpublished memorandum affirming the revocation. After accurately summing up the operative evidence as being that “[t]he agents identified Toney from a photograph, in Bill’s presence, as the person who [had] bought the Lexus from their dealership,” that court reasoned that “Bill’s testimony was not offered to prove the truth of whether To-ney had left the State to purchase the vehicle; rather, it was offered to prove that Toney was identified by agents of the Tennessee dealership as the person who [had] bought the vehicle.”

This focus on Bill’s testimony as concerning only what he personally heard misses the point. It is the out-of-court statement of the agents of the Tennessee car dealership that must be the object of a hearsay analysis. As noted, under Ala. R. Evid. 801, the oral assertion of the agents (and any accompanying nonverbal conduct by them intended as an assertion, such as possibly pointing to the photograph in connection with their oral assertion) would constitute hearsay if it was offered at the revocation hearing “to prove the truth of the matter asserted.” As quoted above, the State’s position is that Bill’s testimony was “not offered to prove the truth of whether Toney had gone to Tennessee to purchase the vehicle”; rather, “[i]t was offered to prove that Toney was identified by agents of the car dealership as the person who purchased the vehicle in Tennessee and drove it to Alabama.”

What this Court had to say in Ex parte Melson, 775 So.2d 904, 906 (Ala.2000), by way of a footnote, is timely and pertinent. In that case, as here, the State argued that the testimony of a witness concerning an out-of-court statement by a third party did not constitute hearsay because it was not being “offered in evidence to prove the truth of the matter asserted.” 775 So.2d at 906. This Court disagreed with that assessment of the purpose for which the testimony had been offered, concluding that the statement “[fell] within the definition of ‘hearsay’ at Rule 801(c), Ala. R. Evid., and that it was, therefore, inadmissible.” 775 So.2d at 907. The Court went on to conclude however, that the action of the trial judge in sustaining the defendant’s objection to the testimony, followed by its instruction to the jury to disregard the answer, in its canvassing of the jury to ascertain if any of its members would “have any problem with disregarding that,” 775 So.2d at 906 n. 1, removed any possible prejudice. In footnote two of the opinion, this Court gave the following admonition:

“We urge vigilance in evaluating any offer of testimony about an out-of-court declaration ‘not for the truth of the matter asserted.’ The admissibility of such testimony depends on its being relevant to a proper purpose in the case. The first inquiry should be: ‘if the out-of-court declaration is not offered for its truth, is whatever the declaration does tend to prove really at issue in the particular proceeding?’ ”

775 So.2d at 907 n. 2.

For what purpose was Bill’s testimony that the agents of the Tennessee car dealership identified Toney from a photograph offered in evidence? We can discern no purpose other than proving that Toney had in fact been in Tennessee. That testimony had absolutely no other relevance to the proceeding. Further, if we assume for the sake of argument that its purpose was not to prove that Toney had been in Tennessee, then that proof would not otherwise have been available in the evidence. In that situation, there would be absolutely no evidence from which the trial judge could be “reasonably satisfied,” pursuant to Rule 27(6)(d)(l), Ala. R.Crim. P., of the truth of the charge that Toney had left the State of Alabama by virtue of his having been in Tennessee.

The situation presented by this case is analogous to that in Mitchell v. State, 462 So.2d 740 (Ala.Crim.App.1984). In that case Mitchell’s probation was revoked because of the nature of the evidence adduced at the revocation hearing. His probation supervisor Billy Cockes, testifying from his report, stated that Mitchell had been arrested and charged with burglary and had “reportedly admitted his guilt to arresting officers.” 462 So.2d at 741. Cockes “testified that he had no personal knowledge of the incidents recorded in the report.” 462 So.2d at 741. Police Officer Gregory Sexton testified at the hearing that witnesses had pointed out two men who were subsequently arrested, and that one of the arrestees was Mitchell. Officer Sexton stated that he was not present when Mitchell made a statement. The Court of Criminal Appeals identified the question before it as:

“[Wjhether the testimony of Officer Sexton, when added to the evidence revealed by the probation officer’s testimony and report, provided sufficient evidence to support Mitchell’s probation revocation.”

462 So.2d at 742. That court, in holding that the evidence was not sufficient to support the revocation of probation, noted:

“This court has held that ‘probation cannot be revoked solely upon hearsay evidence.’ Moore v. State, 432 So.2d 552 (Ala.Crim.App.1983); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984). The only evidence presented against Mitchell in this hearing was hearsay. Neither the victim, nor any other witness who could have identified [Mitchell] as the perpetrator of the crime, testified. Although Probation Officer Cockes said that his report indicated Mitchell had made an inculpatory statement to police, no other evidence was offered to support this allegation. Officer Sexton was not present when the crime was committed, and he arrested Mitchell solely upon the information given to him by others.”

462 So.2d at 742. Similarly, in Mallette, swpra, Mallette’s probation was revoked on the basis of two laboratory reports showing the presence of marijuana in his urine. The Court of Criminal Appeals held that the trial court’s relying solely on two laboratory reports to revoke probation, without the testimony of the persons who actually performed the tests, denied Mallette due process.

Although “identification” evidence can sometimes legitimately be admissible for a purpose other than to prove the truth of the matter asserted, see McElroy’s Alabama Evidence § 273.01(2)(5th ed.1996), the State has not suggested any “other” purpose for which the statements by the agents of the dealership were offered into evidence. We are clear to the conclusion, arrived at through logic and the process of elimination, that the out-of-court statements of the dealership agents were offered to prove the truth of the matter asserted, i.e., that Toney had been in Tennessee. Either way — whether the statement, which was the sole basis for finding that Toney had violated his probation, was offered to prove the truth of the matter asserted, or whether it was not offered to prove the truth of the matter asserted, thereby eliminating any evidentiary basis for a finding that Toney had left the State- — the order revoking probation cannot be sustained. Accordingly, we reverse the judgment of the Court of Criminal Appeals affirming the revocation order, and we remand this case for that court to enter a judgment reversing that order.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

      . The record does not reveal why the agents sought the return of the car.


author: WISE, Judge.

text:
    Donald TONEY v. STATE of Alabama.
    CR-00-2211.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Jerry Lee Hicks, Huntsville, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

On the authority of Ex parte Toney, 854 So.2d 37 (Ala.2002), the judgment of the circuit court is reversed and this cause is remanded to the Circuit Court of Madison County for proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.


text:
    BALDWIN COUNTY v. BAY MINETTE et al.
    1011840.
    Supreme Court of Alabama.
    Jan. 24, 2003.

      Robert A. Wills of Wills & Simon, Bay Minette, for appellant.
    Lawrence M. Wettermark of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for appellees City of Fairhope, City of Orange Beach, City of Robertsdale, City of Gulf Shores, City of Spanish Fort, and Town of Silverhill.
   WOODALL, Justice.

Baldwin County (“the County”) appeals from a declaratory judgment in favor of the City of Fairhope and certain other municipalities in the County, and from the dismissal of its complaint against Bay Mi-nette and other municipalities. We affirm in part and dismiss the appeal in part.

The County commenced this action on October 3, 2001, by filing a complaint against municipalities in the County, namely: (1) Bay Minette, (2) Spanish Fort, (3) Loxley, (4) Daphne, (5) Fairhope, (6) Silverhill, (7) Robertsdale, (8) Summer-dale, (9) Foley, (10) Elberta, (11) Gulf Shores, and (12) Orange Beach (hereinafter referred to collectively as “the Cities”). The complaint, which was filed pursuant to the Declaratory Judgment Act, Ala. Code 1975, § 6-6-220 et seq., contained the following pertinent allegations:

“4. Pursuant to various general laws of the State of Alabama and certain local acts pertaining to [the County], [the County] has been empowered with certain regulatory authority for zoning, planning, enforcement of flood regulations, subdivision regulation, protection of historic and preservation districts, and enforcement of building codes, to-wit:
“(a) Local Act Number 91-719 as amended by Act Number 93-668 and Act Number 98-665 authorizing [the County] to implement zoning and planning in districts throughout Baldwin County;
“(b) Code of Alabama, Section 11-19-1, et seq. authorizing counties in Alabama to implement zoning, subdivision regulations and planning in flood prone areas;
“(c) The Baldwin County Flood Damage Prevention Ordinance enacted to implement FEMA [Federal Emergency Management Agency] requirements in flood prone areas required for [the County] to participate in the Federal National Flood Insurance Program;
“(d) Local Act Number 73-1094 authorizing [the County] to regulate subdivisions outside the corporate limits of municipalities;
“(e) Code of Alabama, Section 11-24-1, et seq. authorizing counties in Alabama to regulate subdivisions;
“(f) Local Act Number 80M97 amended by Act Number 89-960 authorizing [the County] to protect the historic and preservation districts through the enforcement of land use controls; and
“(g) Code of Alabama, Section 41-9-166 authorizing county commissions in Alabama to adopt and enforce the Model Building Code published by the Southern Building Code Congress International and the National Electrical Code published by the National Fire Protection Association.
“5. The principal procedure or mechanism by which [the County] can implement the authority granted to it herein-above for zoning and planning, flood damage prevention, subdivision regulation, implementation of FEMA regulations, protection of historic and preservation districts, and implementation of building codes is through the issuance of building permits and through the inspection process associated therewith.
“7. A justiciable controversy exists in that Gulf Shores and Robertsdale are issuing building permits within the one and one-half (1/é) miles of their police jurisdiction; Foley has, within the past six (6) months begun to issue building permits within its three-mile police jurisdiction; and on October 1, 2001, Fair-hope began to issue building permits within its three-mile police jurisdiction whereas it had previously not issued any building permits in its police jurisdiction. The remaining municipalities in [Baldwin County], namely, Bay Minette, Spanish Fort, Loxley, Daphne, Silverhill, Summerdale, Elberta, and Orange Beach do not issue building permits within their police jurisdiction. [The County] issues building permits and performs inspections commensurate therewith in the police jurisdictions of the Defendants.
“8. [The County] is unable to properly enforce the rules and regulations or to exercise the authority granted to it pursuant to those laws set forth in Paragraph 4 hereinabove unless it can issue building permits and follow its inspection procedures commensurate therewith as hereinabove set forth.
“9. It is in the best interest of the citizens of Baldwin County that the rules and regulations regarding the issuance of building permits in the police jurisdictions of the Defendants be uniform and not duplicitous.”

The County sought a judgment declaring that it has the exclusive right to issue building permits and to conduct its “inspection process commensurate therewith” within the police jurisdictions of the Cities; it also sought an order enjoining the Cities from issuing building permits within their police jurisdictions.

Five of the Cities — Gulf Shores, Fair-hope, Foley, Robertsdale, and Bay Mi-nette — answered the complaint. Ten of them challenged the sufficiency of the allegations of the complaint in subsequent motions. Specifically, seven municipalities— Spanish Fort, Daphne, Silverhill, Roberts-dale, Summerdale, Elberta, and Orange Beach — moved to dismiss the complaint for failure to state a claim. Fairhope, Foley, and Gulf Shores moved for a judgment on the pleadings.

On May 28, 2002, the trial court granted the Cities’ motions. Additionally, it dismissed ex mero motu the complaints against Bay Minette and Loxley. The court concluded that “[t]here is no statutory support for divesting municipalities of what has been a clearly recognized authority to exercise their police powers within their police jurisdictions.” It further concluded that “the most recent legislative enactment on the matter ... divests counties, not municipalities, of building permitting power within the police jurisdiction of any municipality which chooses to exercise its jurisdiction.” (Emphasis added.) The County challenges those conclusions on appeal.

The threshold issue we must address is whether there exists a justiciable controversy between the County and some, or any, of the Cities. This inquiry is compelled by, among other things, the allegation in the complaint that only four of the Cities are, in fact, attempting to exercise permitting authority within their police jurisdictions.

To be valid, a declaratory judgment must settle a “bona fide justiciable controversy.” Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979).

“To be justiciable, the controversy must be one that is appropriate for judicial determination. It must be a controversy which is definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment]. ‘A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.... ’ Anderson, Actions for Declaratory Judgments, Volume 1, § 14.”

Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) (emphasis added). “Thus, ‘[declaratory judgment proceedings will not lie for an “anticipated controversy.” ’ ” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.l999))(emphasis added). Moreover, “justiciability is jurisdictional,” Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998); hence, if necessary, “this Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.” Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994).

It is evident on the face of the complaint that no such controversy exists between the County and eight of the Cities, namely, Spanish Fort, Daphne, Silverhill, Summer-dale, Elberta, Orange Beach, Bay Minette, and Loxley. The County seeks to enjoin the Cities from issuing building permits within their police jurisdictions. However, it is undisputed that, as alleged in the complaint, those eight Cities have never purported to exercise such authority, nor have they expressed any inclination to do so. It cannot be clearer that no justiciable controversy exists between the County and those Cities.

The trial court dismissed the complaint as it related to those eight Cities. Because the trial court lacked subject-matter jurisdiction of the claims against those Cities, dismissal was proper. Thus, the trial court’s order, as it relates to Spanish Fort, Daphne, Silverhill, Summerdale, Elberta, Orange Beach, Bay Minette, and Loxley, is affirmed.

It is only slightly less obvious that the court also lacks jurisdiction over the action as it involves Fairhope, Foley, Gulf Shores, and Robertsdale, the four Cities that allegedly do issue building permits. The action against those four Cities purports to exist in a factual vacuum. For example, the County states: “The applicability of [the] general laws and local acts as affecting the legal status and rights of the parties can only be determined after a consideration of relevant facts.” County’s Brief, at 28 (emphasis added). However, in the “Statement of Facts” section of the County’s brief, the County says: “There is no Statement of the Facts. No evidence was presented to the court. The court ruled on the pleadings based upon arguments of counsel and authorities presented.” County’s Brief, at 11 (emphasis added).

Thus, the County acknowledges the absence of an extant factual scenario from which to frame a controversy, but, instead, essentially seeks further opportunity to posit in the trial court certain hypothetical, such as the following:

“If a citizen wishes to build or remodel a structure in the police jurisdiction of one of the [Cities] and he goes to that municipality to obtain a building permit, [the County] may never know that that building permit has been issued and that construction is taking place. Consequently, if that structure is located in one of [the County’s] zoned districts or in a flood prone area wherein [the County] has zoning and planning authority, [the County] may never know about the construction and thereby be unable to inspect so as to determine that the structure is in compliance with its zoning regulations or its flood damage prevention regulations. Thus, the simple fact that the general laws or local acts may have some particular enforcement provision whereby [the County] may file a suit to enjoin or assess monetary penalties, does not empower [the County] to efficiently and effectively exercise its regulatory authority. Obviously, the ultimate loser in this scenario would be the citizen who thought he was complying with all of the necessary regulations but, in fact, was not.”

County’s Brief, at 21 (emphasis added).

This hypothetical clearly demonstrates the problem with the County’s case: the alleged injury is only hypothetical. The County does not describe an existing dispute that is “definite and concrete,” or “real and substantial.” Copeland v. Jefferson County, 284 Ala. at 561, 226 So.2d at 387. Nowhere does the County allege that this, or any similar, scenario has, in fact, occurred. It merely argues that such a scenario could occur. It does not involve a dispute with any permitee who would be affected by conflicting regulations. In other words, the County alleges nothing more than an “anticipated controversy,” for which “[d]eclaratory judgment proceedings will not he.” Creola Land Dev., 828 So.2d at 288.

Indeed, the County concedes that it began this action “in an effort to get some clarification regarding the competing authorities in the area.” County’s Reply Brief, at 9 (emphasis added). Thus, by its own admission, the County is seeking an “advisory opinion” from this Court. It is well established, however, that “ ‘ “ ‘the declaratory judgment statutes do not empower courts to decide moot questions [or] abstract propositions or to give advisory opinions, however convenient it might be to have the questions decided for the government of future cases.’ ” ’ ” Bethune v. Nettles, 738 So.2d 850, 853 (Ala.1999) (quoting Hornsby v. Sessions, 70S So.2d 932, 938 (Ala.1997), quoting in turn other cases) (emphasis added).

In short, this action presents no justiciable controversy. Consequently, the trial court lacked subject-matter jurisdiction over the action. The trial court entered a judgment on the pleadings in favor of Fairhope, Foley, and Gulf Shores. Because of the jurisdictional defect, that judgment is void. A void judgment will not support an appeal. Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 (Ala.1994). Therefore, the appeal from the judgment in favor of Fairhope, Foley, and Gulf Shores is dismissed. The order dismissing the complaint against the other cities is affirmed.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ„ concur.


author: JOHNSTONE, Justice.

text:
    Michael David BRUCE v. Harry COLE, Jr., and South Butler Medical Holdings, Inc.
    1000080.
    Supreme Court of Alabama.
    Jan. 24, 2003.

      Randy Myers of Richard Jordan, Randy Myers & Ben Locklar, P.C., Montgomery; and Simeon F. Penton II of Kaufman & Rothfeder, Montgomery, for appellant.
    John E. Enslen of Enslen, Johnston & Pinkston, L.L.P., Wetumpka, for appellees.
   JOHNSTONE, Justice.

I. Introduction

Harry Cole, Jr., sued Michael David Bruce for specific performance, to require Bruce to sell his stock in South Butler Medical Holdings, Inc. (“Medical Holdings”), to Cole as allegedly provided by a written agreement among the two men and Medical Holdings. Bruce similarly counterclaimed against Cole for specific performance, to require Cole to sell his stock in Medical Holdings to Bruce as allegedly provided by an alleged oral agreement between only the two men. In the same counterclaim, Bruce also claimed against Cole for damages for Cole’s alleged promissory fraud in allegedly entering the oral agreement with no intention of performing. In the course of the pleadings, Medical Holdings itself became Cole’s coplaintiff seeking to require Bruce to sell his stock in Medical Holdings to Medical Holdings itself as distinguished from Cole.

The opposing parties eventually filed cross-motions for summary judgment against each other, and the trial court entered summary judgment in favor of Cole and Medical Holdings and against Bruce on all claims. Specifically, the trial court entered summary judgment in favor of Cole and Medical Holdings on their respective claims for specific performance, ordered Bruce to sell his stock in Medical Holdings to Medical Holdings itself, and entered summary judgment against Bruce on the oral contract and promissory fraud theories asserted in his counterclaim. The only factual determinations on the merits expressly stated by the order are “there is [or there being] no genuine issue of material fact” and “[t]he Court finds no promissory fraud.” Bruce appeals all of these adverse rulings; and we affirm the summary judgment as it applies to all claims.

II. Facts — Substantive and Procedural

On November 2, 1998, Cole owned all of the 1,000 shares of stock issued by Medical Holdings. That same day, Cole sold Bruce 490 of those shares for the sum of $50,000. As part of the sale, Bruce and Cole signed a Restrictive Stock Transfer Agreement, which provides, in pertinent part:

“4. Retiring, Resigning or Terminated Shareholder.
“In the event a Shareholder should voluntarily or involuntarily retire, resign, or terminate his employment with the corporation (said retiring, resigning or terminated stockholder being hereinafter referred to as the resigning stockholder) said resigning stockholder shall be obligated to sell his shares in the following manner:
“(a) Corporation’s Obligation to Redeem
“The Corporation shall be obligated to redeem and the resigning Shareholder shall be obligated to sell to the Corporation all shares of the Corporation owned by the resigning shareholder at the time of such resignation, retirement or termination of employment.
“The purchase price and terms of any such purchase shall be as set forth in Paragraph 5 hereof
“(b) Shareholders Option to Buy.
“For a period of sixty (60) days after the applicable period for the redemption of the stock by the Corporation, as to any stock which is not redeemed by the Corporation for whatever reason from the resigning stockholder, the other Stockholders shall have an option to buy and the resigning stockholder shall be obligated to sell such stock in accordance with the price and terms as determined in Paragraph 5 herein.
“5. Valuation
“(a) Purchase Price
“The value, and for the purposes of the Agreement, the purchase price of each share of stock of the Corporation shall be determined by the Stockholders of the Corporation in the manner provided herein; the Stockholders shall, on or about November 1 of each year, and at each other such times as they see fit, agree on the value of each share of common stock of the Company. It is agreed that the value of each share of common stock of -the Company is as of this date, and until the next date when a new value is fixed by the parties, One Hundred and No/100 Dollars ($100.00). Attached hereto as Exhibit A’ is a [blank exemplar] Schedule of Values as fixed by the parties for the date indicated on the schedule, and such schedule shall be and is hereby made a part of this Agreement, and when duly executed, shall be in compliance with the requirements herein contained as to the fixing of the value of each share of common stock of the Company; that, except as otherwise provided in this Agreement, such value shall in no manner be altered; and that all assets, both tangible and intangible, if any, as well as liabilities, if any, of or upon the assets of the Company have been considered in determining value.
“13. Entire Agreement.
“This Contract contains the entire agreement of the parties hereto, and no modification, amendment, change or discharge of any term or provision shall be valid or binding unless signed by the party against who such provision is asserted.” (Emphasis added.)

Exhibit “A” to the Restrictive Stock Transfer Agreement reads:

“In accordance with the terms of Section 5 of the Restrictive Stock [Transfer] Agreement of South Butler Medical Holdings, Inc., executed and entered into by the undersigned parties as of November 2, 1998, the undersigned do hereby agree that the value of each share of common stock of the Company as of the first day of November 199_, is $-
“_ L.S.
Harry Cole, Jr.
“_ L.S.
Michael David Bruce”

On November 2, 1998, the bylaws of Medical Holdings read, in pertinent part:

“11. Number, Tenure and Qualifications: There shall be no less than one (1) Director nor more than ten (10) Directors of the Corporation. The Directors shall be elected at the annual meeting of the Stockholders and shall hold office for one (1) year until the next annual meeting of the Stockholders and until their successors have been duly elected and qualified. The number of Directors may be increased or decreased from time to time by Amendment to the By-Laws, but no decrease shall have the effect of shortening the term of any incumbent Director. Directors need not be residents of the State of Alabama or Stockholders of the Corporation.
“19. Various Officers: The Officers of the Corporation shall be elected by the Board of Directors and shall be a President and Vice President. The Board of Directors may also choose a Chairman of the Board of Directors, additional Vice Presidents, a Secretary and a Treasurer. All offices may be held by the same person.
“21. Removal: Any officer elected or appointed by the Board of Directors may be removed at will and at any time by the affirmative vote of the majority of all the Directors.” (Emphasis added.)

On that same day, November 2,1998, Cole and Bruce, as shareholders of all of the stock of Medical Holdings, elected Bruce a director, to serve with Cole, the only other director; and Cole and Bruce, as such directors, elected Cole as the president and Bruce as the secretary and the treasurer of the corporation.

The function and value of Medical Holdings was that it owned 61% (later 50%) of South Butler Medical Services, L.L.C. (“Medical Services”), which, in turn, wholly owned (subject to the debt for the purchase price) the Georgiana Hospital and affiliated clinics in Biitler County. The only shareholder in Medical Services other than Medical Holdings was South Butler Medical Enterprises, Inc. (“Medical Enterprises”), which was wholly owned by Dr. Jeff Voreis of Butler County. Cole wholly owned still another related corporation, South Butler Medical Management, Inc. (“Medical Management”), which, by contract with Medical Services, managed the Georgiana Hospital and affiliated clinics. About the time of the November 2, 1998 transactions, both Medical Management and Medical Services severally employed Bruce as the chief financial officer of each.

Medical Holdings did not pay Bruce a salary or fringe benefits and did not prepare Internal Revenue Service W-2 forms for Bruce. Medical Management paid Bruce’s salary, and Medical Services paid Bruce’s health insurance premiums. Medical Holdings did not reimburse Medical Management or Medical Services any portion of Bruce’s salary or fringe benefits.

According to Bruce’s deposition testimony, two weeks after he and Cole signed the Restrictive Stock Transfer Agreement, Cole orally broached the subject of a “put-call” agreement. According to Bruce, the “put-call” proposal by Cole was that, if either of them offered to purchase all of the other’s shares in Medical Holdings for a stated price, the offeree could decline to sell his shares and could demand to buy all of the offeror’s shares for that same stated price per share. Bruce testified that he orally accepted Cole’s “put-call” proposal, and that, in reliance on this alleged oral “put-call” agreement, Bruce purchased his home.

Cole denied ever discussing a “put-call” arrangement. He stated that he never intended to sell his stock to Bruce. Indeed, Cole testified, the terms of the loans for the purchase of the Georgiana Hospital and clinics provided that the lending bank could call the loans, if Cole, an individual guarantor of 'the loans, were to sell his stock to anyone.

According to Bruce’s deposition testimony, he, Cole, and Dr. Voreis met in July 1999 to discuss the value of the Georgiana Hospital and affiliated clinics in order for each man to prepare a personal financial statement to submit to the bank which had lent Medical Services the money to buy the hospital and clinics. The bank required the statements of Cole and Dr. Voreis, who had personally guaranteed the loan, but did not require one of Bruce, who submitted one nonetheless. The three men valued the hospital and clinics at $1,000,000. According to Bruce, he and Cole agreed at this time that their total stock in Medical Holdings (as 50% owner of Medical Services, which wholly owned the million-dollar hospital and clinics) had a value of $500,000 or $500 per share. Bruce and Cole each separately prepared, signed, and submitted to the lending bank a financial statement valuing his own Medical Holdings stock at $250,000. Each financial statement bore a cover certification, which reads in pertinent part:

“This is to certify that the information set forth on the attached generic Personal Financial Statement, dated 6/30/99 is true and correct, and I hereby request that said financial statement be accepted by [the Bank] as if it were addressed to you and the certification therein were made to you.
“This financial statement has been provided to [the Bank] for the purpose of obtaining credit. The bank is authorized to confirm any of the information set forth therein, and any person having knowledge regarding such information is hereby authorized to disclose that information to you.... “7/21/99 -(sign) “Date”

(Emphasis added.)

On August 2, 1999, Cole verbally terminated Bruce as an employee of Medical Management and Medical Services. In that same month, Cole demanded that Bruce sell Cole all of Bruce’s stock in Medical Holdings for $50,000 pursuant to the Restrictive Stock Transfer Agreement, and Bruce demanded that Cole sell Bruce all of Cole’s stock in Medical Holdings for the same price pursuant to the alleged oral put-call agreement. On September 8, 1999, Cole sued Bruce for specific performance of the Restrictive Stock Transfer Agreement, and on January 10, 2000, Bruce countersued Cole for specific performance of the oral put-call agreement and for promissory fraud in entering the put-call agreement without intending to honor it.

On March 16, 2000, Bruce received a written notice of a special meeting of the shareholders of Medical Holdings scheduled for April 3, 2000. On April 3, 2000, at the special meeting of the shareholders, Cole voted his 510 shares of stock to terminate Bruce as a director of Medical Holdings. Bruce voted his 490 shares of stock against terminating himself as a director of Medical Holdings. By that majority vote, Bruce was terminated as a director, and Cole was left as the only remaining director. Cole then voted his 510-share majority of stock to decrease the number of corporate directors from two to one, and Bruce voted his 490-share minority against the decrease. Finally, Cole voted his majority in favor of, and Bruce voted his minority in opposition to, reelecting Cole as the sole director.

On April 5, 2000, at a special meeting of the new single-director board of directors of Medical Holdings, Cole terminated Bruce as secretary and as treasurer of Medical Holdings. Cole then authorized Medical Holdings to redeem Bruce’s stock in accordance with the Restrictive Stock Transfer Agreement.

By letter dated April 18, 2000 and signed by Cole, Medical Holdings notified Bruce of his termination as secretary and as treasurer of that corporation. By that same letter, pursuant to the Restrictive Stock Transfer Agreement, Medical Holdings demanded to redeem all of Bruce’s stock for $100 per share, a total of $49,000 for all 490 shares. Medical Holdings tendered the $49,000 in forms of payment allowed by paragraph 5(b) of the Restrictive Stock Transfer Agreement. Bruce refused to sell his stock for $100 per share, but agreed to sell his stock for a total of $250,000. Medical Holdings refused to pay Bruce $250,000.

On June 23, 2000, Cole amended his complaint and added Medical Holdings as a plaintiff seeking specific performance of the stock redemption provisions of the Restrictive Stock Transfer Agreement. That same day, Cole and Medical Holdings filed a motion for a summary judgment and submitted a narrative summary of the undisputed facts. Cole also answered Bruce’s counterclaim. On July 20, 2000, answering the amended complaint, Bruce asserted that Cole and Medical Holdings lacked standing to seek specific performance of the Restrictive Stock Transfer Agreement because, Bruce alleged, he had not been terminated from his positions as director, secretary, and treasurer of Medical Holdings. Alternatively, Bruce answered that Cole lacked standing to seek specific performance because Cole had not offered to purchase Bruce’s stock after Bruce had been terminated as director, secretary, and treasurer of Medical Holdings. On July 26, 2000, Bruce moved for a partial summary judgment on Cole’s claim for specific performance.

On August 24, 2000, the trial court entered a summary judgment in favor of Cole and Medical Holdings and ordered Bruce to convey his stock to Medical Holdings within 30 days for the sum of $49,000 ($100 per share). Bruce moved to alter, to amend, or to vacate the judgment, submitted a supporting brief, and moved for a stay of the judgment. The trial court denied the motion to stay, but amended the judgment by extending the 30-day period for Bruce to convey his stock to Medical Holdings. The trial court denied all other postjudgment relief.

On appeal, Bruce states his issues as follows:

“1. Did the trial court err in granting the motion for summary judgment of ... Cole and Medical Holdings on their two counts of specific performance where the evidence presented to the trial court established that there existed genuine issues of material fact with respect to the meaning and application of the Restrictive Stock Transfer Agreement entered into between ... Cole and ... Bruce?
“2. Did the trial court err in granting the motion for summary judgment of ... Cole and Medical Holdings on the counterclaim of ... Bruce ... where sufficient evidence was presented to the trial court to establish that ... Bruce was entitled to the relief sought, namely, enforcement of the parties’ agreement that ... Bruce’s stock was worth $250,000.00 or some other sum to be determined by the jury, a determination by the jury that the attempted termination of ... Bruce was ineffectual, and enforcement of the Pub-Call agreement entered into between Bruce and Cole?
“3. Did the trial court err in granting the motion for summary judgment on the counterclaim of ... Bruce for promissory fraud where the evidence presented to the trial court established that there existed genuine issues of material fact with respect to whether ... Cole intended to deceive ... Bruce when they entered into the Put-Call agreement?
“4. Did the trial court err in denying the motion for partial summary judgment of ... Bruce on the claim of ... Cole seeking specific performance (Count I of the Plaintiffs Complaint) where the evidence presented to the trial court established that ... Cole lacked standing to compel transfer of ... Bruce’s stock and where there is no legal or contractual obligation in ... Bruce to transfer his stock to ... Cole?”

This opinion will select the issues that are determinative and will address them in logical order.

III. Law and Analysis

Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). “[W]here the evidence is in conflict, the issue must [be tried to the fact-finder].” Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala.1984). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

III.A. Claims by Cole and Medical Holdings

Cole’s claim for specific performance sought to force Bruce to sell all of his stock to Cole individually. The claim of Medical Holdings for specific performance sought to force Bruce to sell all of his stock to Medical Holdings as a corporate entity, as distinguished from Cole as an individual.

While the trial court purported to grant summary judgment in favor of both Cole and Medical Holdings on these claims against Bruce, the trial court granted only the specific performance sought by Medical Holdings. Precisely, the trial court ordered only that Bruce sell his stock to Medical Holdings as distinguished from Cole. The trial court did not grant Cole individually the relief he sought in his claim against Bruce for specific performance.

Therefore, if the trial court erred in purporting to grant summary judgment in favor of Cole individually on his claim for specific performance, any such error is harmless. Thus, in determining the propriety of the specific performance ordered by the trial court, this opinion will analyze only the claim filed by Medical Holdings seeking that relief.

Medical Holdings sought specific performance of these provisions of the Restrictive Stock Transfer Agreement:

“4. Retiring, Resigning or Terminated Shareholder.
“In the event a Shareholder should voluntarily or involuntarily retire, resign, or terminate his employment with the corporation (said retiring, resigning or terminated stockholder being hereinafter referred to as the resigning stockholder ) said resigning stockholder shall be obligated to sell his shares in the following manner:
“(a) Corporation’s Obligation to Redeem
“The Corporation shall be obligated to redeem and the resigning Shareholder shall be obligated to sell to the Corporation all shares of the Corporation owned by the resigning shareholder at the time of such resignation, retirement or termination of employment.
“The purchase price and terms of any such purchase shall be as set forth in Paragraph 5 hereof.” (Emphasis added.)

Bruce advances several arguments for the proposition that the condition precedent to the right of Medical Holdings to redeem his stock did not occur. The condition precedent would be that Bruce “involuntarily ... terminate[d] his employment with the corporation.”

Bruce first argues that he was not a Medical Holdings employee to whom the term “employment” could be attributed at all. However, § 10-2B-1.40(9), Ala.Code 1975, includes corporate officers within the definition of “employee.” Therefore, as both the secretary and the treasurer of Medical Holdings, Bruce was a Medical Holdings employee to whom the term “employment” could be attributed.

Bruce next argues that he was not effectively terminated as an officer in accordance with the bylaws of Medical Holdings. This argument depends on his prefatory argument that he was not effectively removed as a director. While the bylaws of Medical Holdings did not contain a provision for the removal of a director, the authority for such action is supplied by § 10-2B-8.08(a), Ala.Code 1975, which provides that “[t]he shareholders may remove one or more directors with or without cause unless the articles of incorporation provide that directors may be removed only for cause.” Thus, Bruce was effectively removed as a director on April 3, 2000 by a majority vote of the stockholders. Accordingly, the April 5, 2000 decrease in directorships from two to one was effective because the directorship eliminated was vacant at that time. Consequently, as the sole director of Medical Holdings, Cole could and did terminate Bruce as an officer of Medical Holdings on April 5, 2000.

Bruce next argues that, in being discharged as he was from his offices of secretary and treasurer of Medical Holdings, he did not “involuntarily ... terminate his employment with the corporation.” He argues that the verb terminate introduces an ambiguity into the Restrictive Stock Transfer Agreement that can reasonably be interpreted to mean that it contemplates only his voluntarily terminating his own employment. This argument is foreshadowed by Bruce’s testimony to his notion of the definition of “involuntarily”-. “What I define as involuntarily as stated before, involuntary means I decide to quit.... I decide to leave for whatever reason I want....”

The question of whether a contract is ambiguous must be decided by the court as distinguished from the fact-finder. Universal Underwriters Ins. Co. v. Thompson 776 So.2d 81. (Ala.2000). “ ‘[T]he words of a contract are to be given their ordinary meaning.’ ” Thompson, 776 So.2d at 84 (quoting BōWing Office Sys., Inc. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999)). The court will so inter pret a contract as to reconcile and to enforce all of its terms and not to ignore or to disregard any of its terms so long as such an interpretation is not patently unreasonable. See Yu v. Stephens, 591 So.2d 858 (Ala.1991), and Federated Guar. Life Ins. Co. v. Dunn, 439 So.2d 1283 (Ala.Civ.App.1983). If, interpreted according to these rules, a contract is not reasonably subject to conflicting meanings, it is not ambiguous. Id. An unambiguous “ ‘contract must be enforced as written.’ ” Thompson, 776 So.2d at 84 (quoting BōWing Office Sys., Inc., 744 So.2d at 918).

Bruce’s argument that the Restrictive Stock Transfer Agreement can be interpreted to contemplate only his voluntarily terminating his own employment disregards or ignores, contrary to the rules of construction, the express term “involuntarily.” Therefore, this Court must reject this argument. Rather, this Court holds that Bruce’s discharge from his corporate offices is within the meaning of the expression “involuntarily ... terminate his employment with the corporation.”

Therefore, the condition precedent to the right of Medical Holdings to redeem Bruce’s stock did occur in that Bruce did “involuntarily ... terminate his employment with the corporation.” The next issue is whether the tender by Medical Holdings to redeem the stock was adequate.

Medical Holdings tendered $49,000 for Bruce’s 490 shares. Bruce, however, argues that the agreement between him and Cole to value the stock of each at $250,000 on the financial statement each submitted to the bank constituted the valuation “of each share of the common stock of the Company” contemplated by paragraph 5(a) of the Restrictive Stock Transfer Agreement. While the record does contain substantial evidence that Bruce and Cole did agree that each would ascribe a total value of $250,000 to his stock on the financial statement each submitted to the bank, the record does not contain substantial evidence that Bruce and Cole agreed that this agreement would constitute the valuation contemplated by paragraph 5(a) of the Restrictive Stock Transfer Agreement. On the contrary, the evidence is undisputed that Bruce and Cole did not memorialize any such valuation as expressly required by paragraph 5(a).

The tender by Medical Holdings of $100 per share for Bruce’s stock was in accordance with the only valuation the parties ever adopted pursuant to paragraph 5(a). Therefore, the tender was adequate to bind Bruce to sell his stock to the corporation.

The valid termination of Bruce from his employment by Medical Holdings quickened its right to redeem all of Bruce’s stock, and Medical Holdings duly tendered the proper sum to Bruce to enforce the redemption. Therefore, the trial court correctly entered a summary judgment in favor of Medical Holdings on the issue of specific performance.

III.B.l. Bruce’s Claim for Specific Performance

Bruce first claimed against Cole for specific performance of the alleged oral put-call agreement. By that claim Bruce sought to enforce Cole’s alleged oral promise to sell all of his stock in Medical Holdings to Bruce for whatever price Cole himself offered to Bruce to buy all of Bruce’s stock. Bruce alleged that Cole had offered to buy all of Bruce’s stock for $50,000. Bruce therefore sought a judgment compelling Cole to sell all of his stock to Bruce for the price per share equivalent to Cole’s offer.

The Alabama Statute of Frauds, § 8-9-2, Ala.Code 1975, provides in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(8) Notwithstanding Section 7-8-113, every agreement for the sale or purchase of securities other than through facilities of a national stock exchange or of the over-the-counter securities market.”

The “Alabama Comment” to § 7-8-113, Ala.Code 1975, explains in pertinent part:

“Thus an agreement by a shareholder of a closely held corporation to sell all or a part of his shares continues to be subject to the statute of frauds, notwithstanding the elimination of a statute of frauds requirement as to transactions in the organized securities markets.”

The alleged oral put-call agreement, if it truly existed at all, was an “agreement for the sale or purchase of securities other than through facilities of a national stock exchange or of the over-the-counter securities market,” § 8 — 9—2(8). Therefore the alleged oral put-call agreement was void and unenforceable. Bruce seems to concede as much in his briefs to this Court. Therefore, the trial court properly entered a summary judgment against Bruce on his claim for specific performance.

III.B.2. Bruce’s Claim for Promissory Fraud

Undeterred, Bruce insists that the trial court erred in entering a summary judgment against him on his claim for promissory fraud. He argues that he relied to his detriment on Cole’s oral promise, which, Bruce says, Cole made with the then-existing intent not to perform and with a then-existing intent to deceive. See Porter v. Hook, 554 So.2d 382, 384-85 (Ala.1989), for the essential elements of promissory fraud.

In the promissory fraud case of Hinkle v. Cargill, Inc., 613 So.2d 1216, 1220 (Ala.1992), this Court wrote:

“Cargill argues that a fraud action cannot be based on the breach of an unwritten contract that is void under the Statute of Frauds. As the above-cited authorities show, however, the Statute of Frauds does not bar proof of a fraud committed by means of a promise that ordinarily could not be enforced as a contractual promise because of the Statute of Frauds. Furthermore, ‘it is well settled in Alabama that fraud may be predicated upon a breach of contract which is void, because not in writing, where the contract was made for the purpose of perpetrating the fraud.’ Caron v. Teagle, 408 So.2d 494, 496 (Ala.1981).”

Indeed, in the promissory fraud case of US Diagnostic v. Shelby Radiology, P.C., 793 So.2d 714 (Ala.2000), addressing a promise void by operation of the Statute of Frauds, a plurality of this Court held that the alleged promisor-defendant’s denial that he made the alleged promise at all constituted evidence that, at the time he made the promise, he did not intend to honor it and he did intend to deceive the promisee-plaintiff.

However, in the more recent case of Holman v. Childersburg Bancorporation, Inc., 852 So.2d 691, 701 (Ala.2002), this Court held

“that where, as here, an element of a tort claim turns on the existence of an alleged agreement that cannot, consistent with the Statute of Frauds, be proven to support a breach-of-contract claim, the Statute of Frauds also bars proof of that agreement to support the tort claim. Were the rule otherwise, the Statute of Frauds could be effectively avoided by the simple wording of the complaint.”

The Holman Court explains:

“As a general rule, ‘[i]f the proof of a promise or contract, void under the statute of frauds, is essential to maintain the action, there may be no recovery.’ Pacurib v. Villacruz, 183 Misc.2d 850, 861, 705 N.Y.S.2d 819, 827 (N.Y.Civ.Ct.1999) (emphasis added); see also Dwight v. Tobin, 947 F.2d 455, 460 (11th Cir.1991); McDabco, Inc. v. Chet Adams Co., 548 F.Supp. 456, 458 (D.S.C.1982) (it is a ‘well accepted doctrine that one cannot circumvent the Statute of Frauds by bringing an action in tort, when the tort action is based primarily on the unenforceable contract’); Weakly v. East, 900 S.W.2d 755 (Tex.Ct.App.1995). This is so, because, ‘[i]f a plaintiff was allowed to recover the benefit of a bargain already barred by the statute of frauds, the statute of frauds would become meaningless.’ Sonnichsen v. Baylor University, 47 S.W.3d 122, 127 (Tex.Ct.App.2001). ‘Thus, the Statute of Frauds bars a [tort] claim when a plaintiff claims as damages the benefit of the bargain that he would have obtained had the promise been performed.’ Id.”

852 So.2d at 699.

In 1823, Alabama adopted the English Statute of Frauds, 29 Car. II, ch. 3 (1676), enacted by Parliament and approved by King Charles II, effective June 24, 1677. Toulmin Code 1823, Tit. 18, Ch. Ill, § 1. Section 1, 29 Car. II, ch. 3 (1676), states the purpose of the Statute of Frauds, in pertinent part: “For prevention of many fraudulent Practices, which are commonly endeavored to be upheld by Perjury and Subordination [sic] of Perjury.” Further, “[t]he public policy underlying the statute of frauds is that fraud or perjury will not be rewarded by denying enforcement of alleged contracts that never, in fact, existed. The statute exists to protect not just the parties to a contract, but also to protect the fact finder from charlatans, perjurers and the problems of proof accompanying oral contracts.” 73 Am.Jur.2d Statute of Frauds § 425, p. 102 (2001) (footnotes omitted) (emphasis added). See David Co. v. Jim W. Miller Constr., Inc., 444 N.W.2d 836 (Minn.1989), and Mclnemey v. Charter Golf, Inc., 176 Ill.2d 482, 223 Ill.Dec. 911, 680 N.E.2d 1347 (1997). Moreover, “[t]he purpose of the statute of frauds is to prevent the fraudulent enforcement of unmade contracts, and not to legitimate [sic] the enforcement of contracts that were in fact made.” 73 Am.Jur.2d Statute of Frauds § 425, p. 103 (2001) (footnote omitted). See Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989).

Thus, the Statute of Frauds identifies defined categories of oral promises that are especially subject to fabrication and especially unworthy of reliance or enforcement. Therefore, for the courts, on a theory of promissory fraud, to countenance a plaintiffs claim that he has relied on such a promise and to redress that plaintiffs claim that he has suffered from the breach of such a promise, defies the policy and frustrates the efficacy of the Statute of Frauds.

Therefore, applying the legal reasoning of Holman, supra, this Court now holds that an oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud. The cases of US Diagnostic v. Shelby Radiology, P.C., 793 So.2d 714 (Ala.2000), Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993), Hinkle v. Cargill, Inc., 613 So.2d 1216 (Ala.1992), Dean v. Myers, 466 So.2d 952 (Ala.1985), and Caron v. Teagle, 408 So.2d 494 (Ala.1981), are overruled to the extent, but only to the extent, that they conflict with this holding.

Accordingly, Cole’s alleged oral put-call promise does not support Bruce’s promissory fraud theory against Cole. The trial court did not err in entering a summary judgment against Bruce on his promissory fraud claim.

TV. Conclusion

In entering a summary judgment in favor of Cole and Medical Holdings and against Bruce on all of the parties’ respective claims, the trial court did not err to reversal. The judgment of the trial court is due to be affirmed.

AFFIRMED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

WOODALL, J., dissents.

      . A "put option” is "[a]n option to sell something (esp. securities) at a fixed price even if the market declines; the right to require another to buy.” Black’s Law Dictionary 1121 (7th ed.1999). A "call option” is "[a]n option to buy something (esp. securities) at a fixed price even if the market rises; the right to require another to sell.” Id.