author: HARWOOD, Justice.

text:
    Carolyn COTTINGHAM v. The CITIZENS BANK and Wayne Gentry.
    1011286.
    Supreme Court of Alabama.
    Jan. 17, 2003.
    Rehearing Denied March 28, 2003.

      Charlie Andrew Bottoms, Jr., Florence, for appellant.
    Robert V. Wood, Jr., and Ruth 0. Priest of Spurrier, Rice, Wood & Hall, Huntsville, for appellees.
   HARWOOD, Justice.

Carolyn Cottingham (“Carolyn”) appeals from the February 28, 2002, summary judgment of the trial court in favor of The Citizens Bank (“the Bank”) and Wayne Gentry.

On January 30, 2001, Carolyn sued the Bank and Gentry in the Circuit Court of Lawrence County, alleging that the defendants, fraudulently and in bad faith, had foreclosed on a mortgage given by her and her husband to the Bank, had defamed her character, had harassed her, and had damaged her expectation of good credit. On March 8, 2001, the Bank and Gentry filed a motion to dismiss, which was denied on May 24, 2001. The Bank and Gentry filed a joint motion for a summary judgment on December 21, 2001. On January 10, 2002, Carolyn filed a “Statement in Opposition” to the motion for a summary judgment and attached evidentiary support, including the affidavit of her ex-husband, Donnie Cot-tingham (“Donnie”). That same day, the Bank and Gentry filed a “Narrative Summary of Undisputed Facts” with the trial court. On January 28, 2002, they filed a supplement to their motion for a summary judgment.

On February 4, 2002, the Bank and Gentry filed a brief in support of the motion for a summary judgment and also a supplemental exhibit to their brief in support of their motion for a summary judgment. On February 13, 2002, the Bank and Gentry filed an objection and a motion to strike Carolyn’s statement in opposition and also to strike Donnie’s affidavit. Without ruling on the objection and the motion to strike, the trial court granted the Bank and Gentry’s motion for a summary judgment on February 28, 2002. The trial court’s order states, in pertinent part:

“On February 13, 2002, the Court met with the attorneys for the parties with regard to the pending motion for summary judgment. The Court finds that there are no disputed issues of material facts and that the defendants are entitled to a judgment as a matter of law. Accordingly, judgment is hereby entered on behalf of The Citizens Bank and Wayne Gentry.”

On March 26, 2002, Carolyn filed a notice of appeal.

On appeal, Carolyn argues that the Bank and Gentry’s motion for a summary judgment should have been denied because, she says, she presented substantial evidence indicating: 1) that the debt, represented by two 1988 notes to the Bank, was extinguished either in 1992 or some time subsequent; and 2) that “the foreclosure was fraudulent because her mortgage was fraudulently and wrongfully used to secure future advancements of indebtedness leading to the foreclosure of her interest in her home.” Because of our disposition of Carolyn’s first argument, we need not address her second argument.

Our review of a summary judgment is de novo.

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

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

The record reveals the following facts. On March 15, 1988, Carolyn; her then husband, Donnie; Donnie’s brother, Jimmy Cottingham (“Jimmy”); and Jimmy’s wife, Joyce Cottingham (“Joyce”), signed two promissory notes with the Bank. The first note, numbered 3037876, evidenced a debt of $129,000, and the second note, numbered 3037843, evidenced a line of credit for $100,172. Both notes evidenced an annual interest charge of 11% and listed the borrower as “D and J Mechanical,” the business owned and operated by Donnie and Jimmy.

Also, on March 15, 1988, two mortgages were executed as security for the notes. One was executed by Jimmy and Joyce, and the other by Donnie and Carolyn. The mortgage executed by Donnie and Carolyn (hereinafter referred to as “the mortgage”) was to secure the amount of $60,000, and it did not contain a future-advance clause. The mortgage was handled by Wayne Gentry, a representative of the Bank. Additional security was provided by two financing statements, each listing inventory, equipment, and accounts receivable, that we infer from the record were owned by “D and J Mechanical.”

On March 29, 1989, Donnie, Joyce, and Carolyn signed a note for $100,000, listing as security the 1988 mortgages and the “inventory and equip[ment] and accounts receivable] as listed on” the Uniform Commercial Code statement sheet. The note lists the borrower as, “D & J Mechanical” and then “Donnie and Jimmy Cot-tingham.” The note indicates that it is a renewal of the 1988 note for the line of credit, but charges an annual interest rate of 14%. The “Schedule of Notes Secured by Mortgage Dated March 15, 1988,” prepared by counsel for the Bank and Gentry and provided by them to the trial court, purports to show that a note executed in 1990, numbered 3047099, was a renewal of 3037843, the 1988 note for the line of credit. However, the copy contained in the record of note 3047099 is largely unreadable and reveals nothing of significance. On December 21, 1992, Alafabco, Inc.; Donnie, acting as president of Alafabco, Inc.; and Jimmy, acting as vice president of Alafabco, Inc., executed a note for $157,614.08 to the Bank. The note indicates that it is a renewal of 3037876 and 3047099, along with other notes. The note charges an annual interest rate of 8%, and lists as security the 1988 mortgages and the “inventory, equipment, accounts receivable filed on” the Uniform Commercial Code statement sheet. The “borrower’s name and address” section of this note bears only the entry, “Alafabco, Inc.,” and an address. None of the notes contained in the record and asserted by the Bank to be renewals of the 1988 notes bear Carolyn’s signature.

The affidavit of Doug Alexander, a vice president of the Bank, states, in relevant part:

“My name is Doug Alexander. I am over the age of 19 years and have personal knowledge of the matters and things set forth herein. I am the Vice-President of The Citizens Bank, Defendant in the above-referenced action. I have reviewed the complaint in the above-styled cause and am familiar with the allegations made by the plaintiff therein. I have also reviewed the records of The Citizens Bank pertaining to transactions between the Plaintiff and the Bank. I am the custodian of the records attached hereto as Exhibits B through O, and these are true and correct copies of the original documents. The documents contained in Exhibits B through O are business records of the bank, kept in the usual and ordinary course of business, and it is the practice of the bank to keep such business records. I am familiar with the method used by the bank for making records of the kind exhibited, and the records contained in Exhibits B through O were made in the regular course of business either at the time of the event recorded or within a reasonable time thereafter. The ‘Schedule of Notes Secured by Mortgage Dated March 15, 1988,’ attached hereto as Exhibit A, has been prepared by counsel for The Citizens Bank for ease in following the history of the original note between The Citizens Bank and the Plaintiff, and is a true and accurate compilation.
“The records attached hereto relate to transactions between the Plaintiff and The Citizens Bank. These records clearly demonstrate that sometime on or about March 15, 1988, Donnie Cotting-ham and Carolyn Cottingham executed a mortgage to secure a note from The Citizens Bank. On or about December 21, 1992, the remaining balance on the note secured by the Cottingham’s mortgage was renewed into a new note. From December 21, 1992 to December 10, 1999, the funds borrowed under the original note were renewed numerous times. On May 1, 1998, Carolyn Cot-tingham executed a guaranty on a loan which was secured by the mortgage entered into on March 19,1988.
“Upon non-payment of the note dated May 1, 1998, a default occurred. Upon default, [the Bank] instituted foreclosure proceedings on the residence of Donnie and Carolyn Cottingham. The foreclosure notices were duly published and the foreclosure sale was held on February 1, 2001. At the foreclosure sale, the Bank was the purchaser of the property. On February 5, 2001, counsel for the Bank forwarded to Carolyn Cottingham statutory notice, pursuant to Alabama Code Section 6-5-215, that the Bank had purchased the property and that if she did not vacate the premises within ten days, she forfeited her statutory right of redemption.
“At no time from origination of the first note for which the March 15, 1988 mortgage secured was the indebtedness ever paid in full or satisfied.”

In 1999, Carolyn and Donnie were divorced. The divorce judgment provided that the residence would be jointly owned by them and that Carolyn would be able to reside at the residence until she remarried.

Although the record is unclear as to the exact date, at some point in late 2000, or early 2001, and before the foreclosure sale, Doug Alexander visited Carolyn at her residence and inquired as to whether she had received a certain piece of “paper,” and whether she planned to vacate the house. In her deposition, Carolyn states that she told Alexander, “[N]o, sir. I have no place to go. This is my home, you know.” Afterwards, Alexander gave Carolyn his card and he left the premises. Carolyn testified that since executing the notes secured by the mortgage in 1988, and before the occasion when Alexander visited her, she had had no conversations or communications with any representative of the Bank.

Carolyn asserts that at some point in the 1990’s, the mortgage was satisfied. However, in their brief to this Court, the Bank and Gentry argue that “[fjrom December, 1992 through December, 1999, the initial loan from [the Bank]-which was secured by the mortgage on Donald and Carolyn Cot-tingham’s residence was renewed numerous times,” and later was in default for nonpayment.

The mortgage states, in pertinent part:

“Borrower [Donald W. Cottingham and Carolyn J. Cottingham] owes Lender [the Bank] the principal sum of sixty thousand and no/100 dollars.... This debt is evidenced by Borrower’s note dated the same date as this Security Instrument (‘Note’), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on March 15, 1989. This Security Instrument secures to lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications....
“21. Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs.”

Thus, on its face, the mortgage contemplates that it will secure renewals of the original debt as evidenced by the note signed on March 15, 1988. However, as mentioned earlier, the mortgage does not contain a future-advance clause, and, as the Bank and Gentry admit in their brief, neither does the “original promissory note executed by the plaintiff.” Nevertheless, in their “Narrative Summary of Undisputed Facts,” the Bank and Gentry asserted to the trial court that, “[o]n December 21, 1992, the loan secured by the mortgage on Donald and Carolyn Cottingham’s residence was renewed along with another loan into a new loan for a total amount of $300,000.00.” (Emphasis added.)

“The law in Alabama is clear that a mortgage for a specific debt cannot be used to secure any subsequent advances in the absence of an express provision securing future indebtedness.” Johnson v. Shirley, 539 So.2d 165, 168 (Ala.1988). See also First State Bank of Franklin County v. Ford, 484 So.2d 407, 408 (Ala.1986); Cooper v. Elba Exchange Bank, 496 So.2d 41, 43 (Ala.1986). “Alabama case law holds that future advance clauses are valid to extend ‘the security to other existing indebtedness or to future indebtedness between the same parties.’ ” Ex parte Chandler, 477 So.2d 360, 362 (Ala.1985) (quoting Underwood v. Jarvis, 358 So.2d 731, 733 (Ala.1978); First Nat’l Bank of Guntersville v. Bain, 237 Ala. 580, 582, 188 So. 64, 66 (1939)). Because of the “absence of an express provision securing future indebtedness,” i.e., a future-advance clause, within the mortgage, even if the 1988 notes were renewed, an issue we need not address, no new indebtedness could be added to the debt specifically secured by the mortgage, here, $60,000 of the 1988 notes.

The Bank and Gentry reference a clause contained in the notes executed by Carolyn on March 15, 1988, that states, “[t]his security agreement remains in effect, even if the note is paid and I owe no debt to you until discharged in writing.” The Bank and Gentry ask this Court to hold that even if the debt secured by the mortgage was paid in full, because no writing discharged the mortgage, it remained in effect under the security agreement contained in the 1988 notes. However, under Alabama law, “[pjayment of the mortgage debt before foreclosure divests the title of the mortgagee.” Crabtree v. Price, 212 Ala. 387, 388, 102 So. 605, 606 (1924). As this Court stated in Barrentine v. Parker, 236 Ala. 188, 190, 181 So. 263, 265 (1938):

“The main right of a mortgagee is to collect his debt, and if necessary to subject the land to sale for that purpose. All other rights are subsidiary to that main one; so that when the debt is paid, the mortgagee has no further rights under the mortgage, and his title acquired by it becomes, ipso facto, divested out of him, section 9026 Code, likewise, all subsidiary rights.”

Furthermore, “[i]n the absence of any statute on the subject, the rule, well-nigh universal, is that, when a debt secured by a mortgage has been paid, the mortgage becomes functus officio, and it cannot be made to stand as security for a new or different debt between the parties, or reissued to a different creditor.” Hammock v. Oakley, 228 Ala. 588, 589, 154 So. 906, 908 (1934).

Section 35-10-26, Ala.Code 1975, states, in relevant part:

“The payment or satisfaction of the real property mortgage debt divests the title passing by the mortgage. ‘Payment or satisfaction of the real property mortgage debt’ shall not occur until there is no outstanding indebtedness or other obligation secured by the mortgage, and no commitment or agreement by the mortgagee to make advances, incur obligations or otherwise give value (collectively referred to as ‘extend value’), under any agreement, including, without limitation, agreements providing for future advances, open end, revolving or other lines of credit, or letters of credit.”

In short, as this Court stated in Jarrett v. Hagedorn, 237 Ala. 66, 68, 185 So. 401, 402 (1938), “[i]f there is no debt there is no mortgage.” Moreover, section 21 of the mortgage states, in relevant part, “[ujpon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument without charge to Borrower.” Accordingly, if the debt secured by the mortgage had been paid in full, the defendants would have been divested of their legal rights in the property, whether or not the security agreements referenced in the notes remained in effect.

As Carolyn points out, the record before us contains copies of the Bank’s loan history records relating to the 1988 notes. The “loan history record” for note 3037876 shows that on December 22, 1992, two credits were posted against the balance owing on the note, each of which exceeded $25,000, and which served to reduce the “current balance” to “.00.” That is the last entry on that record. Likewise the Bank’s “loan history record” for note 3037843 shows that on July 24, 1990, a credit was posted in the amount of $85,001, again resulting in a “current balance” concluding entry of “.00.” Thus, the evidence before us supports an inference that the debt secured by the mortgage, as evidenced by the 1988 notes, was paid in full. Therefore, an issue of material fact exists as to whether the mortgage was satisfied.

Although our holding renders a full analysis of the Bank and Gentry’s next argument unnecessary for our disposition of this appeal, we note that the Bank and Gentry also argue that Carolyn “executed a guaranty on May 1, 1998, which was secured by the 1988 mortgage she had executed.” A copy of such a guaranty is found in the record, bearing what purports to be Carolyn’s signature. However, Carolyn states in her affidavit, “[I]n 1998, my relationship with Donnie Cottingham was bad and I was not speaking to him. I did not sign any guaranty and I would not have signed anything that would have been in his interest at the time.” Moreover, Carolyn testified in her deposition, cited to by the Bank and Gentry in their brief, that she had had no contact with the Bank or Gentry, other than an initial meeting with Gentry and, years later, the meeting with Alexander. Thus, the authenticity of the signature contained on the guaranty is an issue of material fact, and a summary judgment based upon Cottingham’s purported guaranty would be inappropriate on the record presently before this Court. Hobson, supra. Accordingly, the judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . Because three other persons referred to in this opinion share the surname "Cotting-ham,” we are referring to all four by their first names.

      . "A contractual term in a security agreement covering additional loaned amounts on present collateral or collateral to be acquired in the future, regardless of whether the secured party is obliged to make the advances; esp., a provision in an open-end mortgage or deed of trust allowing the borrower to borrow additional sums in the future, secured under tire same instrument and by the same security.” Black’s Law Dictionary 685 (7th ed.1999).

      . The copy of the note contained in the record is illegible with regard to a final signature, purportedly that of Jimmy.

      . "[R]enewal note. A note that continues an obligation that was due under a prior note.” Black's Law Dictionary 1086 (7th ed.1999).

      .We infer from the record that this is a business managed, at least in part, by Jimmy and Donnie.

      . Although the Bank and Gentry assert in their brief that the "paper” was the February 5, 2001, statutory notice and cite to Carolyn’s testimony in support of that assertion, her cited testimony states, "I didn't know who he was because I’d never seen him. And he got this piece of paper, and he said, did you get one of these? And I said, yes, sir.”

      . Although the mortgage, on its face, secures only a single note dated March 15, 1988, the parties do not argue which of the 1988 notes is secured by the mortgage, and indeed Carolyn takes the position that "the evidence provided by [her] establishes that the 1988 notes secured by the 1988 Mortgage of Donnie and Carolyn Cottingham were extinguished ...."


source: Caselaw Access Project

author: HOUSTON, Justice.

license: Public Domain

text:
    OMEGA LEASING CORPORATION v. MOVIE GALLERY, INC.
    1012102.
    Supreme Court of Alabama.
    Jan. 24, 2003.
    Rehearing Denied March 28, 2003.
    J. Steven Wilkes and Rodney E. Nolen of Sirote & Permutt, P.C., Birmingham, for appellant.

      Jeffrey M. Grantham and Brannon J. Buck of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
   HOUSTON, Justice.

Omega Leasing Corporation (“Omega”) appeals from the Jefferson Circuit Court’s refusal to domesticate a default judgment in Omega’s favor obtained in a Virginia trial court — and upheld by the Virginia Supreme Court — against Movie Gallery, Inc. (“Movie Gallery”). The Jefferson Circuit Court held that the issue of personal jurisdiction was not “fully and fairly litigated” in Virginia. We disagree, and we reverse and remand.

I. Principles of Law and Standard of Review

Article IV, § 1, of the Constitution of the United States requires that “[fjull faith and credit shall be given in each state to the ... judicial proceedings of every other state.” In Durfee v. Duke, 375 U.S. 106, 109, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), the United States Supreme Court interpreted this provision, known as the Full Faith and Credit Clause, as follows:

“Full faith and credit thus generally requires every State to give to the judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.”

Furthermore, the Court made it clear that whether a state extends full faith and credit to a judgment of another state depends only upon the existence of a full and fair litigation in the foreign state of the issues resolved by that judgment:

“[A] judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.”

Durfee, 375 U.S. at 111, 84 S.Ct. 242.

The nature of our review of the legal conclusions of a trial court is de novo. City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627 (Ala.2002). However, given the above principles, the scope of our review in this case is limited to examining whether the issue of personal jurisdiction was “fully and fairly litigated and finally decided” in Virginia.

II. Facts

The Circuit Court of Chesterfield County, Virginia, summarized the proceedings before it as follows:

“[Omega] initiated this action by filing a Bill of Complaint against M.G.A., Inc. (‘MGA’), Video World of Virginia (Video World’) [both MGA and Video World are wholly-owned subsidiaries of Movie Gallery] and Thomas Jackson. MGA and Video World timely filed an Answer. After discovery, Omega sought leave to add a new defendant, namely, [Movie Gallery]. Omega set a hearing for July 29, 1997 on [its] motion. At this hearing, MGA and Video World raised, for the first time, two issues: 1) whether the Court has jurisdiction over [Movie Gallery] and 2) whether the bill of complaint stated a sufficient cause of action for fraud. MGA and Video World did not notice Omega that these issues would be raised nor did either MGA or Video World file a written demurrer contesting the sufficiency of the fraud claim.
“Omega’s Motion for Leave to Add Movie Gallery was granted by opinion letter dated July 31, 1997. Seven days later and before Omega filed the Amended Bill of Complaint, MGA and Video World demurred to the not yet filed Amended Bill of Complaint.
“Approximately one month later, Omega filed the Amended Bill of Complaint adding Movie Gallery as a defendant. MGA and Video World were both served with the Amended Bill of Complaint listing all three defendants by name. Additionally, copies of the Amended Bill of Complaint were sent directly to counsel for the defendants.
“Proper service on Movie Gallery was effected through the Secretary of the Commonwealth on September 9, 1997. While MGA and Video [World] filed their demurrer prematurely, Movie Gallery faded to respond at all. Thus, on November 21, 1997, Omega filed a Motion for Default Judgment against MGA, Video World and Movie Gallery. Four days later, MGA, Video World and Movie Gallery filed a Motion for Leave to File Demurrer and Answer. This was Movie Gallery’s first appearance in this case.”

(December 15, 1997, opinion letter of the Chesterfield Circuit Court, Virginia.)

The court granted a default judgment in favor of Omega, finding that Movie Gallery had been properly served but had failed to properly respond:

“Rules 3:5 and 3:17 [Virginia Rules of Court] are plainly clear. ‘The defendant must file his responsive pleading within 21 days prescribed by Rule 3:5 or suffer the consequences prescribed by Rule 3:19 (now 3:17) unless the filing time is extended by the court at its discretion.’ Levine v. Lacy, 204 Va. 297, 301[, 130 S.E.2d 443, 446 (1963)]. The defendants’ motion asks this Court to deny the default judgment as to Movie Gallery primarily because they say that Movie Gallery never physically received the service of process effected through the Secretary of the Commonwealth. The Court finds the defendants’ excuse to be unreasonable.
“Movie Gallery concedes that the service of process made through the Secretary was valid. Movie Gallery does not deny that [its] counsel knew that Omega had been granted leave to add [Movie Gallery] as a defendant. Although representing MGA and Video World, Movie Gallery’s counsel was present at the hearing on the leave to add Movie Gallery as a defendant. Counsel received an opinion letter dated July 31, 1997 advising them that leave had been granted. Counsel manifested their understanding that an amended bill of complaint was granted by filing a premature demurrer to an ‘Amended’ Bill of Complaint.
“Additionally, counsel for Omega represented that they sent copies of the Amended Bill of Complaint naming Movie Gallery as a defendant to counsel for Movie Gallery. Omega’s representation was uncontested. For these reasons, the Court finds that there was no reasonable excuse for Movie Gallery’s failure to act within the time allowed.”

Id.

Regarding its exercise of personal jurisdiction over Movie Gallery, the court stated:

“[Movie Gallery’s] memorandum of law in support of [its] Motion for Leave to File Demurrer and Answer claims ‘[t]he Court’s opinion [letter granting the amendment of Omega’s complaint to add Movie Gallery] did not address ... whether Movie Gallery is subject to personal jurisdiction.’ ... The Court did address the subject of jurisdiction. By alloioing the plaintiff leave to add Movie Gallery, the Court implicitly resolved the jurisdictional issue.”

Id. (emphasis added).

Movie Gallery filed a petition for appeal in the Virginia Supreme Court; its petition specifically raised, among other things, the issue whether the trial court had erred “in ‘implicitly’ ruling that Movie Gallery is subject to personal jurisdiction in Virginia.” (Movie Gallery’s petition for appeal to the Virginia Supreme Court.) The Virginia Supreme Court refused to grant an appeal, stating in its order:

“Upon review of the record in this case and consideration of the argument submitted in support of and in opposition to the granting of an appeal, the Court is of opinion there is no reversible error in the judgment complained of. Accordingly, the Court refuses the petition for appeal.”

(Emphasis added.) The court subsequently denied Movie Gallery’s request for a rehearing.

Subsequently, Omega sought to domesticate the judgment in Alabama by filing a “Notice of Filing Foreign Judgment” in the Jefferson Circuit Court. In response, Movie Gallery moved to set aside the foreign judgment, arguing that the Alabama court need not extend full faith and credit to the Virginia judgment because, it argued, the Virginia trial court had no personal jurisdiction over Movie Gallery. The Jefferson Circuit Court granted Movie Gallery’s motion, holding that “the issue of the Chesterfield County, Virginia Circuit Court’s personal jurisdiction over [Movie Gallery] was not fully and fairly litigated by the Virginia Court and, thus, the judgment of that Court is not entitled to full faith and credit by this Court, nor will it be enrolled.” This appeal followed.

III. Analysis and Conclusion

We hold that the issue whether the Virginia Circuit Court had personal jurisdiction over Movie Gallery was “fully and fairly litigated and finally decided” in Virginia. As stated above, at a hearing on Omega’s motion to add Movie Gallery as a defendant, M.G.A., Inc., and Video World of Virginia (wholly owned subsidiaries of Movie Gallery) raised the issue whether the court had personal jurisdiction over Movie Gallery. The Virginia trial court allowed the amendment, later stating that in doing so the court had “implicitly” resolved the jurisdictional issue. The trial court’s resolution of the jurisdictional issue was then properly and specifically raised as error on appeal to the Virginia Supreme Court, which, in refusing to grant the appeal, found “no reversible error.” These facts indicate that the issue of personal jurisdiction over Movie Gallery was sufficiently litigated by the Virginia courts and that the Virginia judgment is entitled to full faith and credit in the State of Alabama. We therefore reverse the judgment of the Jefferson Circuit Court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ., concur.

      . It is undisputed that the Virginia judgment is a final judgment for the purposes of res judicata. See Faison v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992) (stating that "a judgment is not final for the purposes of res judicata or collateral estoppel when it is being appealed or when the time limits fixed for perfecting the appeal have not expired”).


author: PER CURIAM. JOHNSTONE, Justice,

text:
    Ex parte Jim WOODWARD, individually and in his capacity as sheriff of Jefferson County. (In re Jim Roberson et al. v. Jim Woodward, individually and in his capacity as sheriff of Jefferson County).
    1010187.
    Supreme Court of Alabama.
    March 21, 2003.
    Albert L. Jordan, Algert S. Agricola, Jr., and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for petitioner.
    William M. Dawson, Birmingham, for respondent Jim Roberson.
    Jon B. Terry of Bains & Terry, Bessemer, for respondent Allen Farley.
    Charlie D. Waldrep and William K. Bradford of Gorham & Waldrep, P.C., Birmingham, for respondent Personnel Board of Jefferson County.
   PER CURIAM.

In 1998, Jim Woodward and Mike Hale were competing candidates for the office of sheriff of Jefferson County. After the election, Mike Hale was installed as the sheriff; after an election contest, this Court held that Woodward was the rightful winner in that election. See Eubanks v. Hale, 752 So.2d 1113 (Ala.1999).

After Woodward was sworn into office, he terminated Allen Farley and demoted Jim Roberson, both of whom were Jefferson County deputy sheriffs. Woodward stated that he terminated Farley because Farley had pursued an indictment against him, and that he demoted Roberson because he could not trust him. Farley and Roberson sued Woodward and the Jefferson County Personnel Board (“the personnel board”) for wrongful termination and sought reinstatement. Farley and Roberson moved for a preliminary injunction against Woodward, and the trial court granted their motion. This Court reversed, holding that Farley and Roberson had not “demónstratele!] an immediate and irreparable injury for which their remedy at law would be inadequate.” See Woodward v. Roberson, 789 So.2d 853, 856 (Ala.2001). This Court specifically declined to rule on the issue of monetary damages or on Woodward’s immunity defense. Id. at 856.

In April 2001, Woodward moved for a partial summary judgment, seeking a dismissal of the claims “to the extent they sought damage relief against him in his individual capacity.” (Woodward’s Brief at 12.) The trial court denied his motion. Woodward petitions this Court for the writ of mandamus to direct the trial court to dismiss the claims asserted against him in his individual capacity. Woodward argues (1)that the personnel board lacked authority to control a sheriffs employment decisions with respect to deputies; (2) that he is immune from suit based on State-agent immunity; and (3) that he is immune from suit on Roberson’s and Farley’s § 42 U.S.C. 1983 claims.

“While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus.” Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000); see Ex parte Purvis, 689 So.2d 794 (Ala.1996). Therefore, the petition for the writ of mandamus filed by Woodward is appropriate in this case.

Mandamus is an extraordinary remedy requiring a showing that there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).

Woodward argues that as sheriff of Jefferson County he is immune from suit pursuant to Art. I, § 14, and Art. V, § 112, Ala. Const.1901; in the alternative, he argues that he is immune from suit because his decisions to fire Farley and to demote Roberson were “managerial.” Ex parte Butts, 775 So.2d 173 (Ala.2000). Woodward also argues that he is absolutely immune, in his individual capacity, from liability for actions taken in his position as. sheriff. Ex parte Purvis, 689 So.2d 794, 796 (Ala.1996). In Purvis, a fugitive who had been in the custody of a Mobile County deputy sheriff escaped. Before the fugitive was captured, he shot and wounded Donna Akers. Akers sued the sheriff of Mobile County and the deputy sheriff who had allowed the fugitive to escape. The trial court refused to dismiss Akers’s claims alleging willful conduct by the sheriff and the deputy sheriff. In response, the sheriff and deputy sheriff petitioned this Court for a writ of mandamus. This Court granted the mandamus petition, holding that the sheriff and the deputy, acting within the line and scope of their employment, were immune from liability. Id. at 795 (distinguishing Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141, 1148 (Ala.1995)).

In the underlying action here, Roberson and Farley seek to recover from Woodward back pay; costs of litigation, including reasonable attorney fees; and appropriate monetary damages, both compensatory and punitive. To the extent that Roberson and Farley, and the personnel board, seek monetary damages against Woodward, individually, we grant Woodward’s petition for the writ of mandamus directing the trial court to dismiss the claims against him in his individual capacity. Parker v. Amerson, 519 So.2d 442 (Ala.1987); Alexander v. Hatfield, 652 So.2d 1142 (Ala.1994); Ex parte Purvis, supra; and Ex parte Cranman, 792 So.2d 392, 396 n. 2 (Ala.2000).

PETITION GRANTED; WRIT ISSUED.

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

JOHNSTONE, J., concurs in part.

JOHNSTONE, Justice,

concurring in part.

I concur in note 4 of the main opinion. I express no opinion on any other aspect of the main opinion and no opinion on the judgment.

      . Woodward moved that the personnel board be realigned as a plaintiff, because the personnel board's position was the same as Farley’s and Roberson’s. The trial court granted Woodward’s motion.

      . Section 14 provides:
      "That the State of Alabama shall never be made a defendant in any court of law or equity.”

      .Section 112 provides:
      "The executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county.”

      . Not before the Court on this petition for the writ of mandamus are any claims by Roberson, Farley, and the personnel board seeking (1) to compel Woodward to perform his duties; (2) to compel Woodward to perform ministerial acts; (3) to enjoin Woodward from enforcing unconstitutional laws; (4) to enjoin Woodward from acting in bad faith, fraudulently, beyond his authority, or under mistaken interpretation of the law; or (5) to seek construction of a statute under the Declaratory Judgment Act, § 6-6-220 et seq., Ala.Code 1975, if Woodward is a necessary party for the construction of the statute. Parker v. Amerson, 519 So.2d 442, 442-43 (Ala.1987).
      We note that the trial court may choose to reinstate Roberson and Farley with back pay; our opinion today merely stands for the proposition that Roberson and Farley may not obtain back pay or any other monetary damages from Woodward in his individual capacity-


author: MADDOX, Retired Justice.

text:
    Sara PARKER, as executrix of the estate of Effie Roney Wilson, deceased v. Marguerite W. BOZIAN.
    1012252.
    Supreme Court of Alabama.
    March 21, 2003.

      Charles D. Decker, Dothan, for appellant.
    Richard W. Whittaker, Enterprise, for appellee.
   MADDOX, Retired Justice.

This appeal involves the administration of an estate. The legal issue presented is whether a legacy of a certificate of deposit, designated in the will by the testatrix as “CD Account # 005-0001274 with the First Bank of Dothan, Dothan, Alabama,” was a specific bequest that adeemed when the testatrix transferred the funds in the specified certificate-of-deposit account into two separate certificate-of-deposit accounts, of approximately equal value, numbered 2843 and 2844.

Sara Parker, the executrix of the estate and the appellant here, argues that the certificate of deposit designated in the will as “CD Account # 005-0001274 with the First Bank of Dothan, Dothan, Alabama” (hereinafter “CD 1274”) did not exist at the time of the testatrix’s death and that therefore an ademption had occurred.

The legatee of CD 1274, Marguerite W. Bozian, the appellee here, argues that no ademption occurred because the funds represented by CD 1274 were used by the testatrix to obtain two certificates of deposit that were for a longer term and that paid a higher rate of interest than did CD 1274; that the two certificates of deposit into which the funds from CD 1274 were deposited were designated as being in the testatrix’s portfolio at First Bank; and that the renumbering of the two eertifi-cate-of-deposit accounts was for the convenience of the bank.

The trial judge, in a bench trial, heard conflicting ore tenus evidence. The evidence was conflicting regarding the reason for the testatrix’s dividing the proceeds of CD 1274 and opening two certificate-of-deposit accounts, of approximately equal value. Parker, who is the legatee of the sizable residuary estate, contends that the testatrix took this action because Bozian was talking about putting the testatrix in a nursing home. Bozian argues that the testatrix took the action she took with regard to CD 1274 because she wanted to deposit the money for a longer term and to get a higher rate of interest. Bozian also argues that the testatrix took similar action at other banks where she had certificate-of-deposit accounts, in order to get a higher rate of interest.

The trial judge found in favor of Bozian, and Parker appealed. We affirm.

Facts

Effie Roney Wilson died on April 20, 2001. Parker, a niece, was appointed the executrix of Wilson’s will, which was executed by Wilson on April 27, 1995. Wilson, in “Item Two” of her will, made specific devises of sums of money to several individuals and to a church, and in “Item Four” she gave “[a]ll the rest, residue and remainder of my estate ... to Sara Parker.”

The dispute between the parties revolves around the construction of “Item Three” of her will, which reads as follows: “I give, devise and bequeath to Marguerite W. Bazian [sic], my CD Account # 005-0001274 with the First Bank of Dothan, Dothan, Alabama.”

Because a dispute arose between Parker, as executrix, and Bozian, the legatee, regarding the interpretation of Item Three, Bozian filed an action against Parker seeking a declaration that the funds in the two certificate-of-deposit accounts were given to her under Wilson’s will. She asked the trial court to order Parker to transfer the funds in those certificate-of-deposit accounts to her.

In her complaint she alleged that Wilson, on March 16, 1992, deposited $69,646.50 with First Bank, and received a six-month certificate of deposit, with automatic renewal provisions, and that First Bank designated the account as CD 1274. She further alleged that on the last maturity date of CD 1274, March 16, 2000, Wilson “transferred, swapped, or rolled the matured existing funds (identified as CD 1274) into another account or contract ... for the purpose of increasing the rate of interest from 4.5% to 7%.” In her declaratory-judgment action, Bozian further alleged that “[a]t the time of the swap, roll over, or transfer, the funds on deposit with the Bank were divided into two accounts, one being designated as CD account number 2843 (CD 2843) in the amount of $49,594.98, and the other being designated as CD account number 2844 in the amount of $49,594.97,” and that “[t]he new CD accounts were derived solely and fully from the existing CD 1274.”

The evidence presented shows that, before Wilson executed her will, she had previously opened a certificate-of-deposit account at First Bank, into which she deposited $69,646.50 for a six-month term. The certificate of deposit was dated March 16, 1992, bore the number 1274, and contained automatic renewal provisions at maturity. No beneficiary was listed on the account; it is undisputed that the funds were payable to Wilson’s estate upon her death.

On March 16, 2000, the maturity date for CD 1274, Wilson was taken to First Bank by Shelby Parker, Parker’s husband. The evidence is uncontradicted that on that date the CD 1274 account was the only account Wilson had at First Bank; it is also undisputed that at that time First Bank was paying interest at the rate of 4.5% on CD 1274, but was paying an interest rate of 7% on a 24-month certificate of deposit.

Lisa Merritt, the bank officer who assisted Wilson, testified at the trial. Although she testified that she could not recall the specific transaction, she did testify that Wilson did not add any money to, or subtract any money from, the CD 1274 account, which at that time amounted to $99,189.95. Wilson transferred the entire amount in CD 1274 into two separate 24-month certificates of deposit, CD 2843 and CD 2844, the interest on which was 7%. Merritt testified that the bank numbered the two certificates of deposit as 2843, in the amount of $49,594.98, and 2844, in the amount of $49,594.97. Merritt testified that even though the two new certificates of deposit had different numbers than did the original certificate of deposit, the moneys in the two accounts represented by the certificates of deposit remained under the same portfolio number with the bank, and were the “same money.”

At the time of Wilson’s death, Parker refused to give Bozian the funds in the two certificates of deposit, because she was of the opinion that the certificate of deposit enumerated in the will had been closed out and the gift to Bozian had adeemed.

Parker and Bozian are first cousins; they were described at trial as being favorite nieces of Wilson. Regarding the facts of this case, Parker testified that before Wilson died she did not know Wilson had a certificate of deposit at First Bank, but she testified, over objection, that at about the time Wilson made the change in the certificate of deposit at the bank Wilson mentioned to her that Bozian was asking Wilson which nursing home she would prefer, and that Wilson was upset about this,

Bozian testified, without objection, that in 1995 when she executed her will, Wilson said to her, “I’ve taken care of you.” Bozi-an also testified that shortly before her death Wilson had told her she had greatly increased the benefit to Bozian because she was able to get a higher interest rate. It is undisputed that Wilson did not change her will after she split CD 1274 into two CDs, although the record shows that Parker and her husband offered to carry Wilson to a lawyer to change her will if she wanted to change it. Bozian also presented evidence indicating that within two weeks of the date Wilson changed her CD 1274 at First Bank, she went to other banks in Dothan and readjusted her certificates of deposit in those banks to secure higher interest rates on those certificates of deposit.

George Liverani, whose second wife was a niece of Wilson’s, helped Wilson with some of her bookkeeping. He balanced her checkbook and kept a record of the interest income she made on CDs that she had, except when she changed the term on the CDs. He testified that he no longer took care of them after that. Mr. Liverani was asked if he knew of any animosity between Bozian and Wilson, and he said that he was not aware of any. He was asked approximately how much money Wilson had in the various banks, and he testified that “[t]he last figure I gave Ms. Effie in her checkbook was roughly around $880,000.” He further testified that the money was “[i]n six banks and CD’s.” It is undisputed that if the bequest of CD 1274 is considered to have adeemed, the deposits in the two CDs will go to Parker, as the residuary legatee, and that Bozian will get nothing.

Scope of Review

It is axiomatic that when a trial judge, sitting without a jury, receives evidence ore tenus, his or her findings of fact, based on that evidence, are presumed to be correct and a judgment based on those findings will not be reversed unless the judgment is unsupported by the evidence or is plainly and palpably wrong. In Eubanks v. Hale, 752 So.2d 1113, 1144-45 (Ala.1999)(opinion on return to second remand), this Court stated:

“ ‘[W]e will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.’ Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). However, the ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness. As this Court has held, ‘when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ Griggs v. Driftwood Landing, Inc., 620 So.2d 582, 586 (Ala.1993).”

See Ex parte Hurricane Freddy’s, Inc., [Ms. 1010643, Sept. 27, 2002] — So.2d —, — (Ala.2002). See also Watkins v. Central Contracting, Inc., 603 So.2d 899, 901 (Ala.1992), where this Court said:

“We note that when a trial court, without a jury, hears ore tenus evidence its judgment is presumed to be correct and will not be reversed on appeal unless the appellate court finds it to be unsupported by the evidence or plainly and palpably wrong, after considering all the evidence and after making all reasonable inferences from that evidence. Spruiell v. Robinson, 582 So.2d 508 (Ala.1991).”

Parker does not dispute the principle of law relating to ore tenus evidence, but she argues that “a specific bequest under the will ... adeemed when the deceased ... changed the nature of the gift prior to her death.” She argues that “[t]he caselaw reflects that when property specified under a will no longer exists in the estate the gift is lost and the legatee should not take anything under the will.”

Analysis

We begin our analysis of this appeal by stating some elementary principles of law applicable to the construction of wills. In Cottingham v. McKee, 821 So.2d 169, 171-72 (Ala.2001), this Court summarized the law as follows:

“The Alabama Legislature has established that ‘[t]he intention of a testator as expressed in his will controls the legal effect of his dispositions.’ § 43-8-222, Ala.Code 1975. ‘In Alabama the law is well settled that “the intention of the testator is always the polestar in the construction of wills, and that the cardinal rule is to give that intention effect if it is not prohibited by law.” ’ Hansel v. Head, 706 So.2d 1142, 1144 (Ala.1997), quoting deGraaf v. Owen, 598 So.2d 892, 895 (Ala.1992). ‘To determine the intent of a testator or testatrix, the court must look to the four corners of the instrument, and if the language is unambiguous and clearly expresses the testator’s or testatrix’s intent, then that language must govern.’ Born v. Clark, 662 So.2d 669, 671 (Ala.1995).”

In First National Bank of Birmingham v. Klein, 285 Ala. 505, 508-09, 234 So.2d 42, 45 (1970), this Court also discussed the applicable law when, as in the present case, there is a specific bequest and a residuary clause. This Court said:

“As we said in Mastin v. First National Bank of Mobile, 278 Ala. 251, 177 So.2d 808 (1965), certain principles governing the construction of wills in this state are settled. They are:
“(1) The intention of the testator is always the polestar in the construction of wills, and the cardinal rule is to give it effect if not prohibited by law.
“(2) The intention of the testator may be ascertained not only by the writing itself, but from the light of attending facts and circumstances, and,
“(3) In arriving at that intention, the court should consider the instrument as a whole.
“A will should also be construed to uphold rather than defeat devises and bequests. Willis v. Barrow, 218 Ala. 549, 119 So. 678 (1929). The law presumes, particularly where a residuary clause is involved, that the testator intended to dispose of his entire estate by will rather than die intestate, and unless a contrary intent is clearly expressed, courts will endeavor to reconcile inconsistent or repugnant provisions and adopt any reasonable construction to this end. Marshall v. Northern Trust Co. of Chicago, 22 Ill.2d 391, 176 N.E.2d 807 (1961).”

(Emphasis supplied.) The law with respect to the ademption of a bequest is well settled. As this Court stated in Matthews v. Matthews, 477 So.2d 391, 393 (Ala.1985):

“A specific bequest adeems if the property specified is not a part of the estate upon the death of the testator. Conversely, a general bequest does not adeem in this situation. Rowe v. Newman, 290 Ala. 289, 300, 276 So.2d 412, 422 (1972); Ullmann v. First National Bank of Mobile, 273 Ala. 154, 157, 137 So.2d 765, 767 (1961).
“A specific bequest is defined as ‘a bequest of a particular article or specific part of the testator’s estate which is so described and distinguished from all other articles or parts of the same as to be capable of being identified.’ Rowe, 290 Ala. at 299, 276 So.2d at 421; Ullmann, 273 Ala. at 157, 137 So.2d at 767.”

As we understand Parker’s argument, she contends that when Wilson closed out the account in CD 1274 and reopened two new CD accounts, she thereby created an ademption. What is an ademption? In Carter v. First National Bank of Opp, 237 Ala. 47, 185 So. 361 (1938), this Court adopted the definition of an ademption as stated in 28 R.C.L. 345, § 341:

“ ‘The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption. This may result from a variety of causes, such as a gift during the lifetime of the testator, of the particular article which was the subject matter of the legacy, its consumption, loss, death, or sale, and in each of such instances the courts have held that the legacy is adeemed.’ ”

237 Ala. at 48, 185 So. at 362. In Carter, the Court further stated:

“And, as follows, from 69 Corpus Juris 1006, section 2205: ‘The general rule is that the legacy is adeemed if the thing given is gone when the will takes effect, and does not continue in existence, distinguished from the rest of the testator’s estate, at the time of his death, either where it has ceased to exist or has been disposed of by the testator during his lifetime.’ ”

237 Ala. at 48-49, 185 So. at 362.

Based on the above-stated principles of law relating to a specific legacy, it seems apparent that the bequest in this case was a specific legacy and has adeemed if the thing given is gone when the will takes effect. The question then becomes: has the specific legacy of the certificate of deposit adeemed because an account designated by a specific number in the will did not exist at the time of the testatrix’s death because the testatrix had transferred the funds from that account into two certificate-of-deposit accounts? We think not.

Although we have been unable to find an Alabama case in which a certificate of deposit has been the subject of an ademption, our attention has been called to a case decided by the Court of Civil Appeals of Alabama, Scott v. Wallace, 686 So.2d 1241 (Ala.Civ.App.1996). Scott involved a certificate of deposit that was part of an estate. In that case, the court affirmed the judgment of the Probate Court of Mobile County that a bequest of “cash money” in the testator’s will included the testator’s bank and NOW (negotiable order of withdrawal) accounts and certificates of deposit, as well as currency and coins. In Scott, the court, although noting that it could not find “a generally applicable definition of ‘cash money,’ ” held that “[sjurely a deposit to a bank secured by a certificate is an ‘account’ with that bank.” 686 So.2d at 1244.

Parker contends that the holding in Scott is not dispositive. She argues that “[t]he law is clear that a specific bequest in a will adeems if the property specified is not a part of the estate upon the death of the testator,” citing Matthews v. Matthews, 477 So.2d 391 (Ala.1985); Carter v. First National Bank of Opp, 237 Ala. 47, 185 So. 361 (1938); and Gilmer’s Legatees v. Gilmer’s Executors, 42 Ala. 9 (1868). Although this Court determined in each of the cases cited by Parker that an ademption did occur, we believe that the facts in those cases are sufficiently different from the facts of this case that each is distinguishable.

As we stated earlier, we have found no Alabama case that specifically addresses whether an ademption occurs when the subject of the controversy is a certificate of deposit, but our research indicates that some other jurisdictions have considered the question. In Sammons v. Elder, 940 S.W.2d 276 (Tex.Ct.App.1997), the appeal involved the construction and interpretation of a “savings account and/or savings certificate.” After a bench trial, the court found that all but two of the decedent’s various money-market accounts, certificates of deposit, and individual retirement accounts constituted a “savings account and/or savings certificate,” 940 S.W.2d at 279, thereby passing to her two children under the will. The trial court found that the two remaining accounts were checking accounts, which passed equally to the decedent’s stepdaughter and her two children. The appellant in that case complained of the trial court’s rulings regarding the existence of a “savings account and/or savings certificate.” The trial court found that the term used in the will was ambiguous and, as permitted by Texas law, took extrinsic evidence. In affirming the judgment of the trial court, the Texas Court of Appeals held (1) that the trial court did not err as a matter of law in finding a savings-account provision in the will to be ambiguous; (2) that the trial court properly considered extrinsic evidence in construing the ambiguous provision; (3) that for purposes of the testatrix’s bequest the savings account and/or savings certificate was an account or certificate, which usually bore interest in the financial institution to which the moneys were deposited so that they were protected from loss or destruction; (4) that the certificates of deposit were properly characterized as savings accounts or savings certificates; and (5) that the individual retirement accounts were properly characterized as savings accounts.

In Chandler v. Owen, 233 Ga. 25, 209 S.E.2d 618 (1974), the Supreme Court of Georgia held that a specific legacy of a house and lot, which was to be sold by the executor and the proceeds invested in government bonds, to be distributed equally between two nieces, was not adeemed when the testatrix sold the house and lot before her death and invested the funds in certificates of deposit.

In Gist v. Craig, 142 S.C. 407, 141 S.E. 26 (1927), the testatrix bequeathed to Ep-worth Orphanage the “proceeds” of the collection of notes and mortgages owned by her, which the executors were directed to collect and then to pay the proceeds over to the orphanage. The testatrix collected the notes and mortgages after she executed the will, and for the funds she obtained two certificates of deposit. The identity of the funds was established by the evidence. The South Carolina Supreme Court held that the legacy did not adeem and that the orphanage was entitled to the certificates of deposit. See also Rikard v. Miller, 231 S.C. 98, 97 S.E.2d 257 (1957).

In Pepka v. Branch, 155 Ind.App. 637, 294 N.E.2d 141 (1973), the leading case in Phillip E. Hassman, Annotation, Ademption of Legacy of Business or Interest Therein, 65 A.L.R.3d 541 (1975), the Court of Appeals of Indiana held that a form- and-substance test is the applicable test for determining whether an ademption by extinction of a specific legacy has occurred. The court further held that the testator’s conversion of his sole proprietorship into a corporation after the execution of his will, which indicated an intention to bequeath the business as a whole, did not so substantially change the bequest of the proprietorship as to effect an ademption where, after the incorporation, there was no change in the business, its location, or employees; where the testator was, at his death, still operating the business as he had in the past; and where, although the testator withheld certain assets from the corporation, those assets were in the testator’s name when he died and were still part of the business. Even though the American Law Reports annotation deals with the ademption of a business or interest therein, a section of that annotation appears helpful in this case. The following appears at 65 A.L.R.3d 554:

“In an effort to give the fullest effect to a testator’s testamentary desires some courts will not declare the legacy of a business or interest therein to have been adeemed unless the evidence indicates that the testator intended his disposition of the subject matter during his lifetime to work an ademption. The following cases involving an alleged ademption of the legacy of a business or interest therein support the proposition to the effect that the testator’s intentions govern a determination of whether a change in the subject matter of the legacy of a business or interest therein, made during the lifetime of the testator, has worked an ademption of the legacy.”

See also In re Estate of Kolbinger, 175 Ill.App.3d 315, 124 Ill.Dec. 842, 529 N.E.2d 823 (1988), in which the Appellate Court of' Illinois held that a certificate of deposit and a savings account, which had replaced premises that had been devised by the testatrix to her two sons, stood in the place of the property that had been destroyed by fire and were therefore specifically bequeathed under her will and had not adeemed where the testatrix, since the destruction of the property until her death, remained unable to manage her affairs and did not have the capacity to indicate a contrary intention from that expressed in her will. But see In re the Estate of Mayberry v. Mayberry, 318 Ark. 588, 886 S.W.2d 627 (1994). In Mayberry, the Supreme Court of Arkansas held that an ademption occurred as to a specific bequest of a life estate in a savings account when the testatrix closed the account and purchased certificates of deposit. The Mayberry case is distinguishable, because the Court found that several sources of funds in addition to the funds in the savings account were used to purchase the certificates of deposit, and the value of the certificates of deposit was more than the value of the saving account. Also see Jennings v. National Bank of Commerce of Pine Bluff, 270 Ark. 735, 606 S.W.2d 130 (1980), in which the Court of Appeals of Arkansas held that a specific bequest in a will of any real or personal property owned by a corporation in which the testatrix held a trust interest and any and all interest she might own and any and all real or personal property passing to her pursuant to her husband’s will was adeemed by the sale during her lifetime of the trust interest for cash where she took no actions whatsoever to indicate that she intended the cash proceeds, which represented a change in form, to go to the appellant. Further, see Church v. Morgan, 115 Ohio App.3d 477, 685 N.E.2d 809 (1996), where the testator had bequeathed funds in a specific bank account, but had withdrawn the funds from the account and used the withdrawn funds to open a certificate-of-deposit account. The Ohio Court of Appeals, with one judge dissenting, held that an ademption had occurred.

Summary

Parker argues that “[t]he law is clear that a specific bequest in a will adeems if the property specified is not a part of the estate upon the death of the testator.” She cites Matthews v. Matthews, Gilmer’s Legatees v. Gilmer’s Executors, and Carter v. First National Bank of Opp, in support of her argument. The facts in those cases are sufficiently different from the facts of this case that those cases are distinguishable. In Matthews, for example, the devise was of 150 shares of Litton Industries stock, which a majority of this Court determined was a specific devise; at the time of the testator’s death, the 150 shares had been redeemed by the corporation and were not a part of the estate. In Gilmer, this Court held that bonds, which were given as a general legacy, were utterly worthless, and the bequest adeemed and the legatees took nothing. In Carter, the testator provided in his will: “I have applied for $2,000 in insurance with my daughter as beneficiary, and it is my will that she receive the proceeds thereof in lieu of any other bequest by me.” 237 Ala. at 48, 185 So. at 361. The testator’s wife died and he remarried. A child was born of that marriage. This Court noted “that the will bequeathing the policy to appellant was made at a time when she was the sole beneficiary in the policy and only child of testator.” 237 Ala. at 48, 185 So. at 362. This Court also noted that the testator had effected a change in the policy so as to include his son by the second marriage as a joint beneficiary, but he had made no change in the will. The insurance company filed an interpleader action and the trial court ruled that the two children would share equally in the proceeds of the policy. The Supreme Court affirmed.

In each of the above-cited cases, the testator had taken action that caused the bequest to adeem. In the instant case, the evidence seems uncontradicted that the funds on deposit in First Bank as evidenced by CD 1274, were not withdrawn, added to, or otherwise changed, but were split into two certificates of deposit, of approximately equal value. It is also undisputed that the numbering system used by the bank for the two certificates of deposit was for the convenience of the bank, and that the money on deposit in the two certificates of deposit was identified by the bank as being in the same portfolio as had been CD 1274. In addition, evidence was admitted without objection that showed that Wilson told Bozian, “I’ve taken care of you,” and that about the time Wilson split the certificate of deposit into two certificates Wilson told Bozian “that [Wilson] had made arrangements for [Bo-zian] to get more money in [Bozian’s] account,” and that in January 2001, the year of her death, Wilson told Bozian “that she had greatly increased the benefit — the value of [Bozian’s] account because she was able to get a high interest rate.”

Applying the above principles of law relating to ademption and the general principles of law relating to the construction and interpretation of wills, we affirm the judgment of the trial court.

This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975.

AFFIRMED.

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

      . The testatrix spelled Marguerite W. Bozian’s last name as "Bazian” in her will, but no issue is made that Marguerite W. Bozian is not the legatee named in the will.

      . Merritt testified as follows about the transaction:
      “Q. So effectively, then, she had — it went from a 6-month lower interest rate to a 24-month higher interest rate with her funds on deposit at the bank?
      "A. Right.
      "Q. And it was — was it transferred in the bank’s — on the bank’s record to do that?

        "A. Yes.
      "Q. And were new — well, let me ask you this. It appears it looks like new numbers were assigned to it. Why were new numbers assigned—

        "A. Because the term changed.

      "Q. Okay. And was that for the bank’s convenience or for a banking notation?

        "A. That’s just our system. Since the term changed.

      "Q. And is it — my question is, is it the same money that had always been in the bank, though?

      "A. Yes.

      "Q. No doubt about that?

      "A. No doubt.

      "Q. And so the $99,000 value went to a 7 percent and was divided — it looks like into — I don’t have that in front of me — $49,000 and some odd dollars each?
      "A. Right.”
      (Emphasis added.) On cross-examination by Parker's counsel, Merritt testified as follows:
      "Q. Now, she did not keep the same term, and she changed and created two separate CD's, so she did not roll over that money into another account; is that right?
      “A. Yeah. She changed the term is what she did—
      "Q. And she created two separate CD's?
      “A. Which made us assign her a different number.
      "Q. And she did that — that’s something you had to do? You had to assign different numbers at the time that you created — at the time she created the two separate accounts; is that right?
      “A. Yes.
      “Q. And there was no rollover, she actually had to stop one CD and open up two different ones; is that right?
      "A. Well, we — we did the interest to do that, yes.
      "Q. Yes, ma’am. So there was actually a complete cessation of CD 1274; is that right?

        "A. I'm sorry. What did you say?
      ”Q. CD 1274, it ended on March 16, 2000; is that correct?
      "A. That's when we changed it over and split it, yes.
      "Q. Yes, ma’am. And you split it at her direction; is that right?
      "A. Right.
      "Q. That's not something the bank did automatically; it's not something the bank did on its own?
      "A. Right.
      "Q. So there was in fact no rollover of existing funds? There was actually a CD that was cashed and two new CD's opened; is that right?
      "A. Well, we didn't actually cash them—
      "Q. The bank made a transfer?
      "A. Right. We transferred it.

      ”Q. And she could have kept CD 1274 had she so chosen; is that right?

        “A. Not to get the 24-month term.
      "Q. Not to get the 24-month term. But also if she had wanted to split the money, she would have had to create another CD; is that right?
      "A. To split — yes. At any time she split it, she would have also had to change the number.”

      . Parker testified at trial as follows:
      “Q. And it's your position that the CD Ms. Bozian received was not rolled over to another account?
      "A. Right.
      ”Q. And I asked you, is it your position that the CD that was given to Ms. Bozian was not transferred in whole to another account?
      “A. Right.
      “Q. And your answer was right then. Okay. And was it your position that the fund of money sitting in that CD at the First Bank of Dothan was not transferred to another account at the First Bank of Dothan?

        "A. Right.
      "Q. And your answer was, no, it was closed out?
      “A. Well, it was.
      "Q. And it was not transferred to another account at the First Bank of Dothan? That’s still your belief?
      "A. Yes, sir.
      "Q. And is it your belief that your mother [Wilson] closed out this CD at First Bank and didn't roll that money over or transfer that money to another account at the First Bank of Dothan; is that your belief?
      "A. Yes, sir.
      "Q. And your answer was yes?
      "A. Uh-huh.
      "Q. And that's why you believe Ms. Marguerite is not supposed to get the CD. And your answer was right?
      “A. (Witness nodded.)
      "Q. Is that still your testimony here today?
      "A. Yes, sir.”

      . The record shows that Parker called Wilson "Momma” and that she went to live with the Wilsons when she was five years old. She lived with them until she was 19, when she got married.
      Bozian also had a close relationship with the Wilsons. She said that she lived with them for a time during the depression, and that she spent almost every summer with them until she was about 14. During the 10 to 15 years before Wilson's death, Bozian lived in Ohio, but she testified that she returned to Alabama on numerous occasions to visit with Wilson and that when she visited she did some house repairs and made purchases for Wilson. She testified that she visited with Wilson twice a year and telephoned her two or three times a month and that she hired people to take care of Wilson.

      . Bozian, upon questioning by her counsel, testified, in part, as follows:
      "Q. ... I want to bring us on up, now, to the mid-90s, and let's get closer to the time — when did Ms. Effie [Wilson] die?
      "A. She died in April.
      "Q. 2001?
      "A. 2001.
      "Q. And in the 5 or 10 year period before that, I want to center into that. Were you still coming to visit her?
      "A. At least twice a year.
      "Q. And were your visits pleasant?
      "A. Oh, yes.
      "Q. Enjoyable?
      "A. Yes.
      "Q. Did there [come] an occasion in the mid-90s when you became aware that you were going to be a beneficiary of her will?
      "A. Yes.
      "Q. And were you aware — become aware of what that benefit would be?
      "A. I didn't know amounts, but I knew that she said, and I quote, 'I’ve taken care of you.’
      "Q. And do you remember when this was?
      "A. Well, this was in the summer after the will was made in April.
      "Q. How do you know that? Did you ever see the will?
      "A. No. But she told me — oh, yes, I saw the will. Of course. But she had told me prior to that that she had — that Sara [Parker] had taken her and she had made out a will.
      "Q. Did you ever hear anything else about the will or any of the money she left to you again before Ms. Effie [Wilson] died?
      "A. Yes. On two occasions. I was talking to her in October — ■
      "Q. Now, October of what?
      "A. Let’s see. 2000. It was the October before she died. I was talking to her, and I asked her if she — you know, how everything was going about — we kidded each other about her CD’s. And she said that she had made arrangements for me to get more money in my account. And then in January — about the third week in January when I was visiting—
      "Q. Wait. Wait. Let's be sure what year. January when?
      "A. Of the year she died. She told me that she had greatly increased the benefit — the value of my account because she was able to get a high interest rate.
      "Q. Marguerite, do you know of any — was there ever any animosity or problems between you and Effie up until her death?
      "A. You know, I racked my brains. And at no point did we ever have an argument, even as a child. I mean, Uncle Rosco would scream at me a little bit. But it was to Aunt Effie I ran, you know. If I cut a finger, I ran to Aunt Effie. I mean — yes.
      "Q. Did she ever give you any indication or did you ever hear any reason to suspect that she might want to cut you out of her will or out of her life in any manner?

        "A. None whatsoever.”

      . Parker testified on cross-examination as follows:
      "Q. Are you aware that either you — if it was either you or your husband offer [sic] to carry Ms. Effie [Wilson] to the lawyer to change the will if she wanted to?

        “A. Whatever she needed to do.
      ‘‘Q. And y’all offered to do that, did you not?
      "A. Yes, sir.
      ”Q. And that was after March of 2000, was it not?
      "A. Uh-huh.”


author: PITTMAN, Judge.

text:
    D.O. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2011177.
    Court of Civil Appeals of Alabama.
    March 28, 2003.
    Trudie Anne Phillips, Anniston, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources.
   PITTMAN, Judge.

D.O. (“the mother”) appeals from judgments in six separate cases terminating her parental rights to her six minor children, T.O., E.O., C.O., M.O., K.O., and S.O., and awarding permanent custody of the children to the State Department of Human Resources (“DHR”). The children’s father was also a party to each termination action and the juvenile court’s judgments also terminated his parental rights; however, he has not appealed from the judgments of the juvenile court.

I.

DHR’s report to the juvenile court, which was submitted to the court before it held the hearings on the termination of the mother’s and father’s parental rights, indicated that DHR first became involved with the mother’s family in 1988, when T.O. and E.O. were taken into protective custody by DHR. It was noted then that both the mother and the father were abusing alcohol. C.O. was born in December 1991. In April and May 1992, DHR received two child-abuse and neglect (“CAN”) reports concerning C.O., one of which alleged that the mother had been intoxicated when she picked up a food voucher. DHR found neither report to be “indicated”; however, a local human-resources agency did open a protective-services file to provide services to the mother concerning her alcohol use.

In November 1992, DHR received another report concerning the mother; that report alleged that the mother had been intoxicated when she took C.O. to a hospital emergency room. The report was marked “reason to suspect.” In June 1993, the mother was admitted to an inpatient alcohol-abuse program. In September 1993, the mother was admitted to a hospital because of premature labor; at that time, her blood-alcohol content was reported as .18%. After giving birth to M.O., her fourth child, the mother was placed on Antabuse, a drug used to treat abusers of alcohol. During the next two years, custody of T.O. and E.O. was restored to the mother, and the local human-resources agency closed its protective-services file concerning the mother.

In February 1998, the mother’s protective-services file was reopened based upon a report that C.O. had been physically abused. The report alleged that C.O. had been present during a physical altercation between the mother and the father in which alcohol was involved. In June 1998, a hospital telephoned DHR and reported that the mother appeared to be intoxicated when she brought one of the children to the emergency room. A blood test revealed that the mother’s blood-alcohol level at that time was .242%.

On July 2, 1999, police were dispatched to the mother’s residence in response to a domestic-dispute call. When they arrived they found both the mother and the father intoxicated and unable to care for the children. The children were placed in foster care at that time. Two of the children, T.O. and E.O., were initially placed with their aunt, R.O. However, T.O.’s behavior deteriorated while he was in R.O.’s custody. An allegation of drug abuse was made against R.O., and she refused a drug test. In February 2001, R.O. agreed to keep T.O. and E.O. only until another placement could be made for them.

On February 27, 2001, the mother reported to a local hospital while in “false” labor; at that time, her blood-alcohol level was found to be .266%. The mother’s sixth child, S.O., was born in April 2001; S.O. was immediately placed in foster care by DHR. In July 2001, the mother met with representatives of DHR, and an individualized service plan (“ISP”) was agreed to. The mother was advised by DHR that proceedings to terminate her parental rights would begin if she did not enter an inpatient substance-abuse facility. The mother entered a substance-abuse facility on July 20, 2001, and was released from the facility on October 4, 2001.

DHR’s report to the juvenile court indicates that upon her release from the substance-abuse facility the mother was to find a house, to secure employment, to secure transportation, to remain alcohol-free, and to pay child support. That report additionally noted that a second ISP was completed on January 10, 2002; however, at that time, a DHR representative also noted that DHR would be filing a petition for termination of parental rights in January 2002.

At the juvenile court’s hearings on DHR’s petitions seeking termination of the mother’s and the father’s parental rights, 12 witnesses testified. Fannie Kelley, a DHR social worker, testified that she had been the mother’s caseworker from November 1999 until August 2001. Kelley testified that the mother had not requested services for her alcohol problem until the sixth child, S.O., was born. Kelley also testified that between February 2000 and July 2001 DHR had held five separate ISP meetings concerning the mother but that she had failed to send the mother letters notifying her of many of those meetings. Kelley testified that between November 1999 and April 2000 she had offered virtually no services to the mother and had failed even to arrange visitation between the mother and the children. Kelley testified that the plan for the children, as late as April 2, 2001, was for the children to remain in long-term foster care but that that plan had changed when the juvenile-court judge had ordered DHR to initiate termination proceedings as to all of the children. According to Kelley, the juvenile-court judge “wanted this to be done by October the 15th of 2001, and if it [were] not done he wanted to know the reason.” Kelley testified that the mother had met all of the requirements of her April 2001 ISP.

Heather Evans testified that she had been the mother’s caseworker from August 6, 2001, until the time of the termination hearings in the summer of 2002. Evans testified that she had been assigned to the family while the mother was at the inpatient alcohol-treatment facility in 2001. Evans testified that the mother had accomplished virtually all of the goals set out in her most recent ISP. Evans further testified that she had not investigated any of the mother’s relatives for possible placement of the children.

Edith Couch, a licensed professional counselor, testified that she had been counseling the mother regarding her alcohol addiction and that she was also attempting family counseling. Couch also testified that the mother had had one isolated relapse after she had completed the most recent inpatient alcohol-treatment program. Couch testified that at the time of the hearings the mother and her children required less counseling and that their interactions were appropriate.

E.O., the mother’s 13-year-old daughter, testified that she wanted her mother’s parental rights to be terminated so that she could be adopted. However, E.O. also testified that she loved her mother and that during a recent visit she had seen no signs that the mother was using alcohol.

Robin Bridges, the program director for the New Directions substance-abuse-treatment program, testified that he had been treating the mother. His testimony indicated that the mother had successfully completed approximately 15 weeks of treatment and counseling but that she could no longer afford to attend the program. His testimony also indicated that DHR often paid for such services but that DHR had not done so in the mother’s case. Bridges also testified at length about the nature of and the procedure for obtaining substance-abuse treatment.

Cynthia Glenn, a service supervisor at DHR, testified that she had inspected the mother’s residence. Glenn testified that, although it was not large enough for six children, it was clean and neat and had running water, normal home appliances, and certain amenities. Glenn testified that she had not received a request that DHR pay for the mother’s counseling at the substance-abuse center. Glenn further testified that the mother had been meeting all of the goals specified in her January 2002 ISP when the petition to terminate the mother’s parental rights had been filed.

Carol Clarkson, the manager of sales and services for TRI Staffing, testified that the mother had worked for them but had been laid off. Clarkson testified that she had not received any complaints about the mother and that the mother continued to inquire weekly regarding employment opportunities.

Mary Helen Andrade, a counselor with Covenant Services, testified that she had counseled the mother, providing cognitive and behavioral therapy. Andrade testified that the mother had remained sober, had learned to communicate better, and had done what DHR had requested of her. Andrade further testified that the mother had adjusted her life to comply with DHR’s ISP goals and that, despite not yet being financially self-sufficient, the mother had purchased clothing for the children.

Jack Johnson, a family-support worker with Covenant Services, testified that he had observed the mother on a regular basis, had provided transportation for her, and had observed her visitations with her children. He testified that the bonds between the mother and the children were being strengthened and that several of the children wanted to know when they would be returning to the mother’s care. Johnson testified that he never saw alcohol in the mother’s house and, with the exception of a single relapse, he had never seen her under the influence of alcohol.

Velma Northrup, the director of Covenant Services, testified that the mother had kept all of her scheduled appointments with Covenant Services. Northrup also testified that she had made a number of unannounced nighttime visits to the mother’s new residence and had seen no evidence that the mother was using alcohol. Northrup testified that the mother was attending church and that the women of the church had been a support group for the mother.

The mother testified that she had had five jobs following her October 2001 discharge from the inpatient alcohol-treatment center. Each of those jobs had been either part-time or temporary, but the mother had continued to apply for jobs independently and through a temporary-employment agency. The mother admitted that she had had a relapse, and she testified that she has continued to see her various counselors. The mother testified that she was complying with her ISP, and she indicated that she was unsure why DHR had insisted on seeking to terminate her parental rights. At the time of the hearings, the mother was scheduled to interview for a job with a chicken processor and was continuing to maintain her residence.

II.

A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). Section 26-18-7(a), Ala.Code 1975, states, in pertinent part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child....
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the [DHR] ... leading toward the rehabilitation of the parents have failed.
“(8) That parental rights to a sibling of the child have been involuntarily terminated.”

Section 26 — 18—7(b) further provides that if a child is not in the custody of its parents, the juvenile court may consider whether the parents are providing monetary support for the child, whether they are regularly exercising visitation with the child, and whether they are adjusting their “circumstances to meet the needs of the child.” On appeal, the juvenile court’s judgment on those matters is presumed correct, and it will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong. M.H.S. v. State Dep’t of Human Res., 636 So.2d 419, 421 (Ala.Civ.App.1994).

III.

Although we are aware of the legal principles that control a parental-rights-termination case and of the presumption accorded a trial court’s judgment when it has heard evidence ore tenus, after reviewing the record in this case, we must conclude that the decision of the juvenile court to terminate the mother’s parental rights is not supported by clear and convincing evidence.

The termination-hearing report made by DHR indicates that there may have been a time when termination of the mother’s parental rights would have been proper. However, even assuming that to be true, termination of the mother’s parental rights was no longer warranted at the time of the juvenile court’s hearings on the issue of termination. The record reflects that, at the time of those hearings, the mother had accomplished nearly all of the goals set out in her most recent ISP and was actively working to complete the others. The evidence and testimony shows that she has unceasingly pursued work and that, although her previous jobs have been only temporary or part-time, she has continued to apply for work. She has secured stable housing. She is sober, and she has remained so, with only one isolated relapse since her discharge from the inpatient alcohol-treatment facility in 2001. She continued outpatient alcohol treatment until she could no longer afford it, and the evidence shows that, although DHR in the past has provided financial assistance for parents in the mother’s position, it apparently has not done so for the mother. The mother has also kept all of her appointments with Covenant Services, where she receives behavioral therapy to overcome the negative cognitive attitude often present in recovering alcohol abusers. Lastly, she has been visiting with her children regularly and is attempting to reestablish her relationship with them, both individually and through family counseling.

This court has consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights be based on clear and convincing evidence. See T.H. v. State Dep’t of Human Res., 740 So.2d 1089 (Ala.Civ.App.1998); Bowman v. State Dep’t of Human Res., 534 So.2d 304 (Ala.Civ.App.1988); Hamilton v. State, 410 So.2d 64 (Ala.Civ.App.1982). The trial court’s decision to terminate the mother’s parental rights was premature, considering the evidence indicating that the mother has made a continuing effort to change her circumstances and that she was making significant progress at the time of the termination hearings; therefore, the trial court’s judgments were plainly and palpably wrong. See K.A.C. v. Jefferson County Dep’t of Human Res., 744 So.2d 938 (Ala.Civ.App.1999); see also L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).

We further note the particularly close similarity between the facts of this case and those of V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), which was also an appeal from a judgment of the Calhoun County Juvenile Court. In V.M., we stated that we were

“concerned that the decision to file the petitions to terminate parental rights in these cases was made by the trial court, not by DHR. We are especially concerned that the trial court’s instruction to DHR to file the petitions came at a time when the record demonstrates that the mother was making progress toward meeting the goals DHR had established for her. Pursuant to the terms of a consent judgment in federal litigation, DHR has an affirmative duty to facilitate family reunification whenever that goal is possible. See generally R.C. v. Nachman, 969 F.Supp. 682 (M.D.Ala.1997). Rehabilitation of a parent and family reunification take time.”

710 So.2d at 921. Here, as in V.M., the evidence reflects that, at the time the trial court heard the evidence regarding termination of the mother’s parental rights, the mother was in the process of rehabilitating herself, and there was at least the possibility that the services rendered to the mother by DHR would lead to a reunification with at least some of her children. In the summer of 2002, when the juvenile court held three separate hearings as to the proposed termination of the mother’s parental rights, the mother was making significant progress in adjusting her circumstances to meet the needs of her children; therefore, a viable alternative to termination of her parental rights existed. § 26-18 — 7(b), Ala.Code 1975; State Dep’t of Human Res. v. L.W., 597 So.2d 703 (Ala.Civ.App.1992).

As we noted in V.M.,

“This court fully recognizes the difficulty of cases such as this. Nevertheless, the termination of parental rights is a drastic measure, and we know of no means by which those rights, once terminated, can be reinstated. The evidence in these cases ‘does not rise to the level of being so clear and convincing as to support termination of the parental rights of the mother, such action being the last and most extreme disposition permitted by statute.’ East v. Meadows, 529 So.2d 1010, 1012 (Ala.Civ.App.1988). See also L.A.T. v. State Dep’t of Human Resources, 588 So.2d 471 (Ala.Civ.App.1991).”

710 So.2d at 921. For the reasons stated above, we reverse the judgments of the trial court terminating the mother’s parental rights, and we remand the cases for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, J., concur.

THOMPSON and MURDOCK, JJ., concur in the result.

      . DHR prepared numerous ISP's for the mother. We will refer only to those as to which witnesses testified.