author: SOUTHWICK, P.J., for the Court. BRIDGES, P.J.,

text:
    BOARD OF EDUCATION FOR the HOLMES COUNTY SCHOOLS, Appellant, v. Fred Jerry FISHER, Appellee.
    No. 2002-CA-00256-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.

      Alix Henry, Sanders, Greenwood, attorney for appellant.
    Eduardo Alberto Flechas, James D. Bell, Madison, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, P.J., for the Court.

¶ 1. Fred Jerry Fisher was granted a summary judgment. On appeal, we agree with the Holmes County Board of Education that a genuine issue of material fact existed. We reverse and remand.

¶ 2. Diming the 1999-2000 school year, Fisher worked as a vocational teacher for Holmes County. He earned a salary of $41,630. In May 2000, Fisher was given a contract with a salary of $39,340 for the 2000-2001 school year. This was not for a position of vocational teacher, but rather for a sixth grade social studies teacher. This position was for 189 work days while his prior contract had been for 200 work days. His daily pay was equal in both contracts at $208.15.

¶ 3. Fisher signed the contract under protest and requested a hearing before the Board. After providing a hearing, the Board found that Fisher’s rights had been upheld. Fisher filed suit in chancery court alleging that he was not given the statutorily required notice of the non-renewal of his employment contract. Fisher’s motion for summary judgment was granted. The Board appeals.

DISCUSSION

¶ 4. Notice of appeal must be filed within thirty days of the entry of a final judgment. M.R.A.P. 4(a). Fisher alleges that the Board waited almost a year after the judgment on April 4, 2001, before filing a notice of appeal on February 14, 2002. The difficulty with this argument is the summary judgment finding a breach of the Board’s statutory obligations only resolved liability; left open was the issue of damages. A final judgment is one for which no further action is required of the court to reach a final decision of the rights of the parties. Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747, 750-51 (Miss.1998). A summary judgment that resolves all issues is as final as any other judgment. This summary judgment, though, still left a key matter for later resolution.

¶ 5. On January 15, 2002, the chancellor entered an award of damages. That resolved all remaining issues in the case and a timely appeal was then taken.

1. Genuine issue of material fact

¶ 6. The chancellor found there were no genuine issues of material fact. We look at the same information as was before the trial judge and make our independent decision as to the correctness of that conclusion. Hudson v. Courtesy Motors, 794 So.2d 999, 1002 (Miss.2001).

¶ 7. The chancellor found that the contractual offer extended to Fisher for the 2000-2001 school year was a “demotion” from his prior contract. DeSoto County Sch. Bd. v. Garrett, 508 So.2d 1091, 1093 (Miss.1987). A statute requires timely notice to a teacher whose contract is not going to be renewed for the subsequent school year. Miss.Code Ann. § 37-9-105 (Rev.2001). The key legal and factual issue is whether Fisher’s new contract was something less than a “renewal.”

¶ 8. The purpose of the statute requiring notice for non-renewal of teaching contracts was “to provide public school employees with notice of the reasons for not offering an employee a renewal of his contract” but not to “establish a system of tenure.” Miss.Code Ann. § 37-9-101 (Rev.2001). The statute provided minimum process due to those educators who were not offered the benefits of their existing contract for the following school year.

¶ 9. Fisher’s contract for the 1999-2000 school year stated that the Board had the discretion to reassign him to another position. The 2000-2001 contract contained the same provision. The school superintendent has the authority to reassign an employee if the new position was “an area in which the employee has a valid license issued by the State Department of Education.” Miss.Code Ann. § 37-9-14(2)(s) (Rev.2001). Complaints from personnel concerning a reassignment are to be reviewed by the school board. Id. Fisher’s reassignment is within the authority of the superintendent since Fisher is certified to teach both reading and social studies. Reassignment would not per se be a different contract. Making the reassignment effective at the beginning of the next school year would not be a per se failure to renew. There is a genuine issue of material fact on whether a change to a comparable position could be a renewal and not a demotion.

¶ 10. Each school principal must recommend the teachers that should be offered employment for the next school year. Miss.Code Ann. § 37-9-17(1) (Rev.2001). In general, the school year for teachers must be at least 187 days. Miss.Code Ann. § 37-9-24(1) (Rev.2001). The recommendations are given to the superintendent and, when approved, the superintendent offers an employment contract to the teacher. Miss.Code Ann. § 37-9-17(1) (Rev.2001).

¶ 11. A renewal of a contract does not necessarily mean that the exact terms of the prior contract will resurface in the contract for the following school year. “Non-renewal” is not defined in the statute and there is no basis to infer that the mere changing of terms in the contract is in and of itself a non-renewal. In Garrett, teaching positions were given to former principals. Garrett, 508 So.2d at 1092. The Court determined that this was a demotion since principals were offered less pay in the teaching positions. Id. at 1092. This demotion was not a “renewed contract” and was adverse to the principals, therefore process was due. Id. at 1093.

¶ 12. In Garrett, a demotion took place since a principal was moved to the inferior position of a teacher. Here, Fisher was moved from one teacher position to another teacher position. The issue of whether he was demoted is not self-evident, i.e., is not beyond dispute of material fact. Garrett does not define “demotion.” We find relevant a federal district court’s effort to define the term:

A demotion includes any reassignment (1) under which the staff member receives less pay or has less responsibility than under the assignment he held previously, (2) which requires a lesser degree of skill than did the assignment he held previously, or (3) under which the staff member is asked to teach a subject or grade other than one for which he is certified or for which he has had substantial experience within a reasonably current period.

Montgomery v. Starkville Mun. Sep. Sch. Dist., 665 F.Supp. 487, 492 (N.D.Miss.1987). The court was analyzing whether racial discrimination had occurred by determining whether there had been a demotion. We are not concerned with motivations, but we too are seeking whether factually there was a lesser position. It is reasonable to examine the same factors as set out in this federal court decision: whether the new position has less pay as we define that concept below, less responsibility, requires less skill, or otherwise is a diminishing of position.

2. Reduced salary

¶ 13. Whether some slight decrease in income is enough to constitute a demotion, which we here equate to a failure to “renew,” should be examined under the reasoning of some federal cases which evaluated whether racial discrimination has occurred regarding a teacher’s employment:

responsibility is the central value protected by Singleton’s demotion provision. An increase in salary is not necessarily determinative, see Lee v. Macon Cty. Bd. of Educ. (Muscle Shoals), 5 Cir., 1971, 453 F.2d 1104 (black principal demoted to Head Start teacher despite fact that his salary increased), nor is the title, see Lee v. Macon Cty. Bd. of Educ. (Thomasville), [470 F.2d 958 (5th Cir.1972)] (Black principal was not demoted to administrative assistant to the school superintendent. The court held that responsibilities were not “significantly different.”)

Lee v. Russell County Bd. of Ed., 563 F.2d 1159, 1161 (5th Cir.1977); Pamela Dill, “Education Law Abstract: A Survey of Prominent Issues in Mississippi’s Public Schools,” 13 Miss. C.L.Rev. 337, 361 (1993) (discusses Russell). Just as an increase in salary does not shield racial discrimination, a slight reduction in salary does not spawn a per se non-renewal. The ultimate consideration towards which these factors point is whether because of pay, responsibility, or other relevant factor, the new contract is offering a lesser position, i.e., it results in a demotion of the educator.

¶ 14. Fisher was paid $208.15 daily during the 1999-2000 school year, an annual total of $41,630. This was the same daily amount that was offered to him for the 2000-2001 school year for an annual total of $39,340. He was clearly to be paid less during the 2000-2001 school year, but he also was required to work eleven days less. Since the contractual requirement under the statute is for teachers to work at least 187 days, both of Fisher’s contract met this requirement. Miss.Code Ann. § 37-9-24(1) (Rev.2001). A fact issue remains as to whether Fisher was truly demoted.

¶ 15. There was no proof for the summary judgment that established that the offer of a comparable position with a lower annual compensation was in fact a demotion.

3. Conclusion

¶ 16. Since Fisher had signed contracts containing reassignment provisions, a reassignment occurring at the end of a school year does not indicate a non-renewal per se. Fisher held a teacher’s certificate in social studies. The superintendent could have reassigned him from his position as a vocational teacher to a social studies teacher during the 1999-2000 school year or the next year.

¶ 17. The dissent argues that the Fisher had no choice once he got the contract beyond the date for non-renewals. That is not the question, however. Whatever his choices might have been, the issue is whether the new contract had the quality of change from his previous contract that was sufficient to constitute a non-renewal. That is the issue on which we remand.

¶ 18. A school board may decide to move teachers into comparable positions in the year-end review of what school needs may be, without such moves being considered non-renewals. Those reassignments may at times result in different titles. There may be slight pay differentials for reasons such as are alleged here, namely, certain positions may require more before or after school-year work. Within the fact-specific parameters established by Garrett of whether the new position should be considered a demotion, this case needs to be decided. Since summary judgment was granted, the fact issues were not resolved about the relative status of the two positions, and whether the difference in pay was solely the result of the different number of days legitimately required of those assigned in the two different positions. There is also a fact question of whether the differential in pay, even if arising from neutral factors, in itself was enough to be a demotion.

¶ 19. We reverse and remand so that the case can proceed past the summary judgment stage.

¶ 20. THE JUDGMENT OF THE HOLMES COUNTY CHANCERY COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR. BRIDGES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, J.

BRIDGES, P.J.,

DISSENTING.

¶ 21. In the present case, Fisher filed a complaint alleging that the Board had “attempted tortiously to evade its contractual duties” to Fisher. Under Mississippi Code Annotated section 37-9-105, in the event that a school district recommends non-renewal of a teacher contract for a successive year, written notice of non-renewal shall be given within seven days of the date when the recommendation to re-employ would have been made under the provisions of sections 37-9-15 and 37-9-17. Miss.Code Ann. § 37-9-105 (Rev. 2001). Mississippi Code Annotated section 37-9-105 applies to circumstances in which a teacher is terminated and also to circumstances in which a teacher is offered a different position or their prior school term contract is otherwise not renewed. DeSoto County Sch. Bd. v. Garrett, 508 So.2d 1091, 1093 (Miss.1987). Failure to notify a teacher of non-renewal of a contract in a timely manner will result in automatic renewal of the contract in question for the ensuing year. Garrett, 508 So.2d at 1094; also see Noxubee County Sch. Bd. v. Cannon, 485 So.2d 302, 304 (Miss.1986).

¶ 22. Fisher was not provided written notice or otherwise informed within seven days of the non-renewal of his 1999-2000 employment contract, as required under Mississippi Code Annotated section 37-9-105. The 2000-2001 contract indicates that it was not executed until May 8, 2000, thirty days subsequent to the deadline for notice, which was on April 8, 2000. According to Garrett, since the Board failed to timely notice Fisher by written notice of the non-renewal of his 1999-2000 school term contract, such contract was automatically renewed for the 2000-2001 school term.

¶ 23. The school board’s failure to provide Fisher with the required notice is the basis for my dissent. In the present case, Fisher was offered a different position, from a vocational teacher to a social studies teacher, and was offered a reduced salary, from $41,630 to $39,340, in short a demotion. The choice given to Fisher was in reality no choice. Not provided with notice, he faced the choice of either signing the contract to teach a position he did not wish to teach or not sign the contract and look for employment elsewhere. Mississippi Code Annotated section 37-9-105 applies to Fisher since he was offered a different position which was less favorable. Had the school board afforded Fisher due process he would have had a choice regarding whether to teach in an inferior position for less pay.

¶ 24. I respectfully dissent from the majority and believe no question of fact existed regarding whether Fisher was demoted and therefore required due process.

MYERS, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The motion for rehearing is granted, the former opinions are withdrawn, and these opinions are substituted.


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Michael TILGHMAN and Jennifer Tilghman, Appellants, v. CITY OF LOUISVILLE, Mississippi, Appellee.
    No. 2003-CA-00643-COA.
    Court of Appeals of Mississippi.
    June 1, 2004.
    William T. May, Newton, attorney for appellant.
    Taylor Tucker, attorney for appellee.
    Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. On September 17, 2002, the mayor and board of aldermen for the City of Louisville granted a request to re-zone a parcel of property that abutted property owned by Michael and Jennifer Tilghman. The Tilghmans objected to the re-zoning and filed their appeal on December 9, 2002. The circuit court dismissed the appeal on grounds that it was not timely filed and because it failed to meet the requirements of Mississippi Code Annotated section 11-51-75. We affirm.

¶ 2. Mississippi Code Annotated Section 11-51-75 (Rev.2002) provides in pertinent part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once....

¶ 3. The board granted the re-zoning request at its meeting on September 17, 2002. Although the Tilghmans gave notice to the city clerk of their intention to appeal on October 21, 2002, the notice of appeal was not filed with the circuit clerk until December 9, 2002.

¶ 4. The Tilghmans argue that they did not receive a copy of the “written findings of the board” until October 21, 2002. Thus, they claim that the ten day appeal period should begin to run on October 21. On October 25, 2002, the Tilgh-mans’ counsel sent a letter to the City’s counsel indicating their intention to appeal, requesting a transcript of the zoning hearing and reserving all of their rights.

¶ 5. Section 11-51-75 provides that the Tilghmans “may appeal within ten (10) days from the date of adjournment” of the meeting where the decision was made. The meeting was adjourned on September 17; thus, the appeal period would have expired on September 27. Since the appeal was not filed within ten days from the day of adjournment of the board meeting, neither the circuit court, nor this Court, has jurisdiction to consider the appeal. House v. Honea, 799 So.2d 882, 883(¶ 9) (Miss.2001).

¶ 6. Although the failure to file the appeal within ten days determines the outcome of this appeal, we believe it particularly important to address the second issue — the bill of exceptions. The circuit court also dismissed the Tilghmans’ appeal because they did not present a proper bill of exceptions to the circuit court. Section 11-51-75 requires that the bill of exceptions “be signed by the person acting as president of board of supervisors or of the municipal authorities.” The City argues that the bill of exceptions was not in proper form because it was signed only by the Tilghmans’ counsel.

¶ 7. Recently, the supreme court held that the filing of a bill of exceptions “is merely an appellate record and not necessary to commence an appeal.” Bowen v. DeSoto County Bd. of Supervisors, 852 So.2d 21, 23(¶ 4) (Miss.2003) (citing Bowling v. Madison County Bd. of Supervisors, 724 So.2d 431 (Miss.Ct.App.1998)). Thus, our courts have interpreted Mississippi Code Annotated Section 11-51-75 (Rev. 2002) to require the filing of an appeal within ten days, but have allowed the bill of exceptions to be filed or amended within a reasonable time thereafter.

¶ 8. For these reasons, the judgment of the circuit court is affirmed.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: KING, C.J., for the Court.

text:
    James D. HOBSON, Jr. and Joseph G. Strickland, Appellants, v. CITY OF VICKSBURG, Appellee.
    No. 2003-CA-00216-COA.
    Court of Appeals of Mississippi.
    June 8, 2004.

      David M. Sessums, Vicksburg, attorney for appellants.
    Bobby D. Robinson, Vicksburg, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J. and CHANDLER, J.
   KING, C.J., for the Court.

¶ 1. James D. Hobson, Jr. and Joseph G. Strickland own property located at 400 Fairground Street in Vicksburg, Mississippi. On January 11, 2002, they filed suit against the City of Vicksburg in the Special Court of Eminent Domain of Warren County, seeking damages for the City’s failure to seek enforcement of the 1895 contract between the City and the Yazoo & Mississippi Valley Railroad Company (predecessor in interest to Kansas City Southern Railway) to maintain the Fairground Street bridge.

¶ 2. The Fairground Street bridge was closed by order of the mayor and board of aldermen of the City of Vicksburg on February 20, 1995, but had been physically barricaded in 1993.

¶ 3. After the City moved for summary judgment based on the three year statute of limitations, the Warren County court entered its order granting summary judgment on December 23, 2002, finding the statute of limitations applicable.

¶ 4. In their appeal, the appellants argue that the court erred in ruling that their claim was barred by the three-year statute of limitations.

FACTS

¶ 5. Hobson and Strickland purchased their property at 400 Fairground Street by deed dated January 9, 1986. Fairground Street is a platted and dedicated public street within the city limits of Vicksburg and is the only full access the appellants have to their property.

¶ 6. On May 23, 1895, the City entered into an agreement with the Yazoo & Mississippi Valley Railroad Company which permitted the railroad to lay down and construct tracks intersecting and crossing Fairground Street in exchange for the railroad erecting and maintaining an overhead iron bridge for vehicles and foot passengers. At some point the railroad company began to ignore and disregard its obligations to maintain the iron bridge. The bridge deteriorated to such an extent that the Warren County Board of Supervisors requested the City to close the iron bridge for safety reasons. On February 20, 1995, the mayor and board of aldermen passed an ordinance closing the bridge.

¶ 7. The overhead iron bridge is located to the west of the appellants’ property on Fairground Street. To the east of the property is an overhead railroad trestle which limits traffic coming from the east to passenger cars and prevents access by trucks, ambulances and emergency vehicles such as fire trucks, according to the appellants.

¶ 8. The appellants first sought to have the City enforce the agreement with the railroad but were unsuccessful. They then filed a third party complaint against the Kansas City Southern Railroad Company (successor in interest to the Yazoo & Mississippi Valley Railroad Company). On June 29, 2001, the circuit court entered its order granting summary judgment, finding that the requested writ of mandamus should be denied because the plaintiffs’ legal remedy was to file a complaint for eminent domain. This Court affirmed the judgment of the circuit court in Hobson v. City of Vicksburg, 848 So.2d 199 (Miss.Ct.App.2003). On January 11, 2002, the appellant filed the instant action against the City of Vicksburg in the Special Court of Eminent Domain of Warren County. The City filed its answer and affirmative defense that the claim was barred by the three year statute of limitations. The City moved for and was granted summary judgment.

DISCUSSION

¶ 9. The appellants argue that the action taken by the mayor and board of aldermen on February 20, 1995, did not put them on notice that the City really intended to close the street. The appellants argue that their cause of action against the City did not accrue until the City made a decision whether to enforce its contract with the Kansas City Southern Railway. As previously noted, this contract was the subject of a mandamus action by the appellants against the City and the railroad which was resolved in favor of the City. Id.

¶ 10. Under Mississippi law a landowner has a cause of action for eminent domain for restriction of access. The deprivation of the right to access creates an immediate cause of action. Simmons v. Mississippi Transportation Comm’n, 717 So.2d 300, 301(¶ 8) (Miss.1998); Gilich v. Mississippi State Highway Commission, 574 So.2d 8, 12 (Miss.1990).

¶ 11. Mississippi Code Annotated 15-1-49(1) (Rev.2003) provides a three year statute of limitations where no other period of limitations is prescribed. In this case the appellants’ alleged loss of access to their property occurred no later than February 10, 1995, and probably as early as 1993. The complaint was not filed until January 11, 2002. In Mississippi State Highway Commission v. Vaughey, 358 So.2d 1307 (Miss.1978), Vaughey filed suit claiming that his property was damaged due to the Highway Commission’s closing of a portion of the west frontage road between McDowell Road and Daniel Lake Boulevard in Jackson, Mississippi. The closing of the road was more than six years but less than ten years before Vau-ghey filed suit. The supreme court reversed and rendered the judgment in favor of Vaughey, holding that the suit was barred by the statute of limitations. The court held:

The action, if any, accrued at the very time of the closing of the segment of the road, no passage of time was necessary before suit might be brought, and the statute applicable began to run... .We cannot agree that the adverse possession statute governs, but we conclude that § 15-1-49 controls, and the action had become barred before it was begun.

Id. at 1308 (citations omitted). See also Taylor v. County of Copiah, 937 F.Supp. 573 (S.D.Miss.1994).

¶ 12. We find no support for the argument that the appellants’ cause of action does not accrue until the City makes a final decision regarding enforcement of the contract between the City and the railroad. We find that the court properly granted summary judgment based on the applicable statute of limitations and affirm.

¶ 13. THE JUDGMENT OF THE SPECIAL COURT OF EMINENT DOMAIN OF WARREN COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, J., for the Court.

text:
    Donovan A. LUEDKE and Barbara L. Luedke, Appellants, v. AUDUBON INSURANCE COMPANY, Kenneth Foley and Mississippi Windstorm Underwriting Association, Appellees.
    No. 2002-CA-01825-COA.
    Court of Appeals of Mississippi.
    June 8, 2004.

      Judy M. Guice, Biloxi, attorney for appellants.
    Eugene M. Harlow, Laurel, Charles G. Copeland, Ridgeland, William E. Whitfield, Gulfport, Beau A. Stewart, Jackson, Leslie Pettis Barry, Rebecca Suzanne Blunden, attorneys for appellees.
    Before KING, C.J., IRVING and MYERS, JJ.
   IRVING, J., for the Court.

¶ 1. Donovan and Barbara Luedke sued Audubon Insurance Company, Kenneth Foley, and Mississippi Windstorm Underwriting Association (MWUA) for damages suffered by them when their home was damaged by a hurricane four months after their insurance policy allegedly was can-celled without notice to them. Audubon, Foley, and MWUA filed separate motions for summary judgment, and the trial judge granted each motion, finding that the insurance policy was not cancelled but that it lapsed by its own terms because the Luedkes failed to pay the renewal premium. The trial judge further found that neither the contract documents nor the statutory law imposed upon Audubon, Foley or MWUA a duty to notify the Luedkes of the expiration of the policy since the policy unambiguously stated that the period of coverage was for one year.

¶2. Aggrieved by the judge’s decision, the Luedkes now appeal asserting the following issues: (1) a renewal notice was required prior to the policy’s expiration, and (2) a cancellation notice was required after termination of the policy.

¶ 3. We find no error; therefore, we affirm the trial judge’s grant of summary judgment in favor of each defendant.

FACTS

¶ 4. Donovan and Barbara Luedke applied for a windstorm and hail damage insurance policy for their home in April 1995. The application was submitted to Kenneth Foley, a licensed insurance agent, who in turn submitted the application to the Mississippi Windstorm Underwriting Association. MWUA determined that the Luedkes’ property was insurable and caused a one-year policy of insurance to be issued by Audubon, a servicing insurer for MWUA. The policy had an effective date of May 19, 1995, and an expiration date of May 19, 1996. Prior to the policy’s expiration on May 19, 1996, Audubon mailed an expiration and renewal notice to the Luedkes informing them that their policy would expire unless it was renewed by a payment of the premium before the specified due date. The Luedkes renewed their insurance and the policy was reissued for another year beginning May 19, 1996, and expiring May 19, 1997. A notice of expiration and renewal was again sent prior to the policy’s expiration, and the policy was renewed for an additional one-year term from May 23,1997 to May 23,1998.

¶ 5. On March 5, 1998, which was prior to the expiration of the 1997-1998 policy, MWUA claims it mailed a notice of expiration and renewal to the Luedkes, their mortgage company, and Foley. However, the Luedkes maintain that they never received the notice of expiration. It is undisputed that they failed to pay the required premium for renewal of the policy which expired on May 23, 1998. On September 28, 1998, approximately four months after the expiration date of the policy, the Luedkes’ property was severely damaged by a hurricane. Shortly thereafter, they contacted Foley to process a claim and was told that they no longer had coverage because their policy had expired. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “All that is required of an opposing party ,to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under the rule.” Lowery v. Guaranty Bank and Trust Company, 592 So.2d 79, 81 (Miss.1991). “In determining whether the entry of summary judgment is appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Id. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Id.

(1) Expiration and Renewal Notice

¶ 7. The Luedkes first contend that MWUA’s written procedures required a notice of expiration and renewal be sent to them prior to the expiration of their policy. The Luedkes rely on the following provision in MWUA’s manual of rules and procedures in support of their argument that a notice of renewal was required:

Policies will not be automatically renewed. A renewal notice on form prescribed by MWUA must be submitted. Notice for renewal, complete with all data required by this Manual, received by the MWUA on or before the expiration date will be renewed without a lapse in coverage. Notices received after the date of expiration will be reinstated effective 12:01 a.m., Standard time, on the day following the date all data required by this Manual is received by the MWUA, provided there is no designated Hurricane in the Gulf of Mexico as outlined in this Manual.
A minimum of thirty (30) days advanced notice of expiration will be given to the insured and his representative.

The Luedkes also argue that MWUA had a long-standing custom and practice of sending its customers written notice prior to the expiration of their policy and that the standard practice in the industry is to provide written notice of termination before a policy expires.

¶ 8. MWUA, on the other hand, argues that the provision in its Manual of Rules and Procedures is “an internal document that is neither a part of the insurance contract, a statute, nor a document that is required by statute.” Therefore, notwithstanding this provision in the manual, MWUA submits that it was not required to give the Luedkes a notice of expiration. MWUA further argues that, by statute, its policies are issued for terms of one-year, renewable annually upon application therefor and that since the Luedkes submitted neither a renewal application nor premium for the renewal of the policy which expired in May 1998, their coverage lapsed. See Miss.Code Ann. § 83-34-15 (Rev.1999). Finally, MWUA argues that the Luedkes failed to exhaust their administrative remedies; therefore, the trial court did not acquire jurisdiction to hear the Luedkes’ complaint. MWUA urges the jurisdictional defect as an alternative basis for affirming the trial court’s dismissal of the Luedkes’s complaint.

¶ 9. Although we agree with MWUA that a litigant is required to exhaust his administrative remedies before seeking judicial review, we decline to decide this appeal on the Luedkes’ failure to exhaust their administrative remedies. We refuse to proceed along the exhaustion route because we find that the Luedkes’ policy had expired, and they had not submitted an application for renewal. Consequently, we are not persuaded that they were either an “applicant” or an “insured” within the meaning of section VIII of MWUA’s “Plan of Operation” which provides for appeals, by applicants or insureds, first to the board of MWUA and then to the Commissioner of Insurance of the State of Mississippi.

¶ 10. MWUA properly advances that “absent a statutory requirement or policy provision, an insurer has no duty to provide notice of the termination of a policy.” Lowery, 592 So.2d at 83. However, when a duty exists, “[actual] receipt [of the notice] may be presumed by proof of ordinary mailing, but this presumption may be rebutted by the insured who contends that he or she did not actually receive the notice.” Carter v. Allstate Indemnity Company, 592 So.2d 66, 75 (Miss.1991). “Mere denial of receipt is insufficient to create a triable issue of fact.” Id.

¶ 11. The Luedkes rely heavily on Mississippi Ins. Underwriting Ass’n v. Maenza, 413 So.2d 1384 (Miss.1982) in support of their proposition. In Maenza, appellants received a notice of renewal from their insurance company before the expiration of their policy. Id. Two days before the expiration date, appellants mailed their premium payments for the renewal of the policy, but the payments were not received by the insurance company until the day after the coverage expired. Id. The insurance company treated the payment as an application for new coverage, and not a renewal of the original policy. Id. Shortly thereafter, appellants’ property was destroyed by a hurricane, but the insurance company denied coverage and claimed the original policy had lapsed because the payment was not received on or before the expiration date. Id. The Mississippi Supreme Court held that the renewal was effective when the premium policy was deposited in the mail, as long as it was deposited in time to reach the insurer on or before the expiration date. Id. The court noted that since the insurance company had adopted the postal service as its agent, the failure of the premium to reach the insurance company until one day past the due date did not defeat coverage. Id.

¶ 12. Maenza is inapplicable to the case at bar. Unlike the policy in Maenza, the policy in the case sub judice expired by its own terms due to the Luedkes’ failure to pay the required yearly premium necessary to renew their coverage for the following year. Here, the policy began on May 23, 1997 and ran until May 23, 1998. In order to effectively renew the policy, the Luedkes were obligated to pay the premium by the specified due date set forth in the policy. The Luedkes failed to do this, and thus the policy, by its express terms expired on May 23, 1998. “When the period of an insurance policy expires, in the absence of specific language to the contrary, the contract between the parties terminates.” Krebs v. Strange, 419 So.2d 178, 182 (Miss.1982). Therefore, upon the expiration of the policy, the contract for insurance between the Luedkes and MWUA terminated, and the policy ceased to exist.

¶ 13. The Luedkes’ next argument that MWUA’s custom and practice was to send a notice of expiration and renewal to its customers is similarly without merit.

¶ 14. We note that several jurisdictions have held that “the requirement of an insurer to give notice of the amount and date on which a premium is due may be based upon past practice or usage of the particular insurer.” Security Ins. Agency, Inc., v. Cox, 299 So.2d 192, 196 (Miss.1974) citing Minnick v. State Farm Mutual Automobile Ins. Co., 54 Del. 125, 174 A.2d 706, 713 (1961). However, we find no evidence here of a course of dealing between the parties which could have caused the Luedkes to believe that their policy would continue beyond the policy’s expiration date if no notice of expiration or renewal was received by them.

¶ 15. The record reflects that, according to MWUA, a notice of expiration and renewal was mailed to the Luedkes prior to the expiration of the policy in May 1998. The Luedkes, however, deny receiving the notice. It is not disputed that MWUA sent, and the Luedkes received, a notice of expiration and renewal in prior years. But in this regard, we note that the effective date of the policy, which was renewed in May 1997, was May 23, 1997, although the policy that was being renewed had expired on May 19, not May 23, 1997. This difference in dates is indicative of the fact that the Luedkes knew or should have known that coverage terminated on the expiration date listed on the declaration page of each renewed policy unless the policy was renewed prior to the expiration date. Obviously, the renewal premium for the policy expiring May 19, 1997, was not received prior to May 19, thus explaining why the effective date of the renewed policy was May 23 instead of May 19.

¶ 16. We find no merit in the Luedkes’ contention that MWUA’s mailing them a notice of expiration and renewal in the prior year is sufficient to establish a course of conduct between the two parties. As we have already observed, there is nothing about the past notices which would suggest that coverage was being provided beyond the date of expiration listed on the declaration page of policy.

(2) Cancellation Notice

¶ 17. The Luedkes next argue that MWUA and Audubon should have notified them of the cancellation of their policy since their policy was cancelled for nonpayment of premium. They rely on language contained in Audubon’s insurance policy and MWUA’s plan of operation. The Audubon policy provided that the policy could be cancelled at any time by giving to the insured five days’ written notice. Similarly, a provision in MWUA’s plan of operation states that:

1. No policy issued under this Plan of Operation shall be cancelled by a servicing insurer without prior approval of the Association. Grounds for such cancellation shall be limited to:
a. Non-payment of premium; or....
2. Notice of cancellation, together with a statement of the reason therefor, shall be sent to the insured and a copy sent to the agent or broker and the association. Such notice shall be accompanied by a statement explaining that the insured has a right of appeal as hereinafter provided.

MWUA, however, maintains that since the policy expired pursuant to its own terms, the cancellation provision did not apply to the Luedkes.

¶ 18. Although the Luedkes use the terms “cancellation” and “termination or expiration” interchangeably throughout their pleadings, the two terms are not synonymous. “Cancellation as used in insurance law, means termination of a policy prior to the expiration of the policy period by an act of one or all of the parties.” Waynesville Security Bank v. Stuyvesant Ins. Co., 499 S.W.2d 218, 220 (Mo.Ct.App.1973). In contrast, “termination refers to the expiration of the policy by lapse of the policy period.” Id.

¶ 19. Since the existence of the policy in the case at hand was contingent upon yearly payments, and not monthly installment payments, we find that the phrase “cancellation due to non payment of premium” in the plan of operation likely referred to midterm cancellation for actions taken on the part of MWUA and not the Luedkes. Thus, “non-payment of premium” as grounds for cancellation in the instant case would apply in instances such as where a cancellation is for non-payment of premiums in policies with installment plans, and not in policies with yearly premiums as in the Luedkes’ policy. As a result, we find that the Luedkes’ policy was not cancelled during its term, but instead expired by a lapse of the policy period. As previously stated, when the policy expired, the contract between MWUA and the Luedkes terminated. “When termination of the contract occur[red], [MWUA] had nothing to cancel.” Krebs, 419 So.2d at 182. Likewise, several jurisdictions have held that “when an insurance policy expires because of nonpayment of the renewal premium, the insurer has no duty to send notice of cancellation to the insured.” Legier v. Cmty. Plasma Ctr., 649 So.2d 498, 500 (La.Ct.App.1994). For the forgoing reason, the Luedkes’ argument on this issue lacks merit.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. THOMAS, J., NOT PARTICIPATING.

      . Mississippi Windstorm Underwriting Association, formally Mississippi Insurance Underwriting Association, was created by the legislature in 1970 to provide property insurance for coverage against windstorms and hail to residents of the Mississippi Gulf Coast. Miss.Code Ann. §§ 83-34M to 83-34-29 (Rev. 2002). MWUA operates according to a plan of operation and is authorized by the legislature to promulgate rules for implementation, subject to the approval of the insurance commissioner.

      . It is undisputed that Foley received a copy and that he did not notify the Luedkes. Although the Luedkes claim that their mortgage company did not receive the notice, the rec- ■ ord does not conclusively indicate whether or not the mortgagee received a copy. Further, this fact is immaterial to this discussion.

      . Section VIII of MWUA’s "Plan of Operation,” permits "[a]ny applicant for insurance and any person insured under the "Plan of Operation” to appeal to the board of directors any final ruling or decision of the association. Thereafter, an appeal may be taken to the Insurance Commissioner of the State of Mississippi. If the applicant or the insured is aggrieved by the decision of the commissioner a further appeal, "as provided by the insurance laws of the State of Mississippi,” may be taken. Miss.Code Ann. § 83-34-19 (Rev. 1999).


author: MADDOX, Retired Justice.

text:
    S.J. HOLDING COMPANY, INC. v. KADCO, INC.
    1012272.
    Supreme Court of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 15, 2003.
    Jack E. Held and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellant.
    Jesse P. Evans of Lange, Simpson, Robinson & Somerville, LLP, Birmingham, for appellee.
   MADDOX, Retired Justice.

This case involves an alleged fraudulent transfer of property; the issue presented is whether the grantor, the receiver of an insolvent insurance company who transferred property of the receivership as authorized by a court order, was a “debtor” within the meaning of that term under the provisions of the Alabama Uniform Fraudulent Transfer Act (“AUFTA”), §§ 8-9A-1 to -12, Ala.Code 1975.

On January 6, 1999, S.J. Holding, Inc., sued Kadco, Inc., the grantee of the alleged fraudulent transfer of real property. S.J. Holding sought an avoidance of the transfer and compensatory and punitive damages. Kadco answered the complaint and counterclaimed, alleging intentional interference with contractual and business relations, slander of title, and conspiracy to commit the foregoing torts.

Thereafter, S.J. Holding moved for a summary judgment on Kadco’s counterclaims; it subsequently moved for a summary judgment on its claim against Kadco. In reply, Kadco moved for a summary judgment on the fraudulent-transfer claim asserted against it.

On March 20, 2002, the trial court, based on the undisputed material facts submitted in support of and in opposition to Kadco’s motion for a summary judgment, granted the motion. S.J. Holding appeals; it argues that the trial court erred in holding that the receiver, as the grantor, was not a “debtor,” within the meaning of the provisions of the AUFTA. S.J. Holding also argues that the trial court erred when it found that the sale was a judicial sale, but because we find that the trial court did not err in determining that the receiver/grant- or was not a debtor, we’ need not decide this issue. We affirm.

Facts and Procedural History

On September 22, 1992, the Jefferson Circuit Court, in a case styled State of Alabama ex rel. Mike Weaver, as Commissioner of Insurance, and Nelson Burnett, as Chief of the Insurance Department’s Receivership Division v. Employers Insurance Company of Alabama, Inc., CV-92-07556, found that Employers Insurance Company of Alabama, Inc. (“EICA”), was insolvent, and in its order appointed Nelson Burnett, chief of the recéivership division of the State Department of Insurance, as the receiver for the insolvent insurer pursuant to § 27-2-53, Ala.Code 1975. One of EICA’s assets was over 90% of the stock of South Jefferson Company, Inc. (“South Jefferson”), which owned a tract of real property called Meadowbrook Townhome Property (“the Meadowbrook property”), which is the subject of this appeal. In July 1985, South Jefferson borrowed $1,500,000 from AmSouth Bank to develop the Meadowbrook property. To secure the loan, South Jefferson granted AmSouth a first mortgage on the property-

At the time Burnett was appointed receiver of EICA, John P. Baker was president of South Jefferson. In November 1992, Baker and S.J. Holding, of which Baker was the sole shareholder, executed a security agreement with AmSouth pursuant to which Baker and S.J. Holding personally guaranteed the indebtedness of South Jefferson. The agreement also created a lien on additional property owned by S.J. Holding and provided that in the event of South Jefferson’s default Am-South could apply proceeds from the sales of various lots owned by S.J. Holding to the indebtedness of South Jefferson.

There is evidence in the record indicating that Burnett, as the receiver of EICA, was duly elected chairman of the board and president of South Jefferson in December 1992, but that Burnett was never appointed the receiver for South Jefferson, nor was South Jefferson in the insurance business. EICA was merely the majority stockholder of South Jefferson.

In early 1993, South Jefferson defaulted on its mortgage payments on the Meadow-brook property, and as authorized by the security agreement executed by Baker and S.J. Holding, AmSouth Bank applied funds from the lots sold by S.J. Holding to South Jefferson’s mortgage on the Meadowbrook property. The total amount of funds withheld from S.J. Holding and applied to South Jefferson’s indebtedness was $147,132.

In 1995, Kadco expressed an interest in buying the Meadowbrook property, and on August 8, 1995, Burnett, as the receiver for EICA, filed a motion in the Jefferson Circuit Court in the State ex rel. Weaver v. EICA case for the approval of a sale of the Meadowbrook property to Kadco. In his motion Burnett stated that as the receiver of EICA he was petitioning the court to approve the sale of property, “currently owned by South Jefferson, a subsidiary of EICA.” In his motion Burnett stated that EICA owned over 90% of South Jefferson; that South Jefferson held only two substantial assets, the Meadowbrook property and a parcel of real property located in Georgia; that the Meadowbrook property was mortgaged to AmSouth Bank and the balance of the loan secured by the mortgage was $576,405.32; that the value of the Meadowbrook property was considerably less than the outstanding balance of the loan; that an appraisal of the Meadow-brook property estimated the market value of the property to be $310,000; that Kadco had agreed to purchase the Meadowbrook property for $300,000; and that the proceeds from the sale would be applied to the loan, leaving AmSouth with a claim of $276,405 against South Jefferson. Burnett further alleged that AmSouth had agreed to take a nonrecourse mortgage on the property in Georgia to satisfy the mortgage on the Meadowbrook property. Burnett’s motion also stated:

“The only other significant creditor of South Jefferson is EICA. This debt to-talled $369,312.42 as of December 31, 1994. To the best of the Receiver’s knowledge, this liability to EICA was created through ‘intercompany loans’ from EICA to South Jefferson, all of which accrued in the calendar years 1990,1991, and 1992.
“Upon Court approval of these transactions, EICA as majority stockholder in South Jefferson, will hold a special stockholder meeting to obtain approval of these transactions.
“Accordingly, Nelson Burnett, as Receiver of EICA, represents to the Court that the sale of property and transfer of assets proposed in this motion are in the best interest of the receivership estate of EICA.”

On September 6, 1995, Burnett issued to the shareholders of South Jefferson a notice of a special meeting, to be held on September 28, 1995, at the office of the State Department of Insurance, receivership division, for the purpose of approving the sale of the Meadowbrook property to Kadco. On September 20, 1995, the circuit court granted Burnett’s motion for approval of the sale of property.

Immediately upon learning of the proposed sale, Baker telephoned Burnett and objected to the sale. In addition, Baker voted against the sale at the shareholders’ meeting, but the resolution of the board of directors, approved on September 28,1995, recommended that Kadco’s offer be accepted.

Baker and S.J. Holding notified Burnett that funds from S.J. Holding were used to pay South Jefferson’s mortgage debt, but the record is unclear as to exactly when this notification took place. On October 16, 1995, Burnett, as president of South Jefferson, wrote a letter to Baker, as president of S.J. Holding. In that letter Burnett stated:

“As you requested, we have checked with AmSouth regarding your impression that funds originating from S.J. Holding Company, Inc., were applied to reduce the debt owing from South Jefferson to AmSouth.... The bank, however, maintains no records indicating the source of funds that were applied to reduce the debt of South Jefferson. Accordingly, AmSouth Bank can only confirm that S.J. Holding may have reduced the debt of South Jefferson to AmSouth, but is unable to verify the amount of such debt reduction. To the extent that S.J. Holding is a valid creditor of South Jefferson, it will be incumbent upon your company to establish the proper amount of such debt, if any.
“To the extent that S.J. Holding is able to submit appropriate and accurate documentation to South Jefferson verifying the extent to which S.J. Holding is a valid creditor of South Jefferson, if such is the case, then South Jefferson will, of course, reflect the obligation on future financial statements. At present, however, despite our efforts, the existence and amount of any alleged debt from South Jefferson to S.J. Holding is unproven and therefore denied.”

On October 17, 1995, Baker, as president of S.J. Holding, wrote a letter to Burnett, as president of South Jefferson, stating that payments reducing the indebtedness of South Jefferson were made “in substantial amounts ... to the Bank by [S.J. Holding]” and that, “[a]s a creditor of [South Jefferson], [S.J. Holding] hereby serves notice of its opposition to the [sale of the Meadowbrook property].” In a separate letter, also dated October 17, 1995, Baker wrote that S.J. Holding was a creditor of South Jefferson in the amount of $147,132.88. On October 18, 1995, Burnett deeded the Meadowbrook property to Kadco. S.J. Holding was never reimbursed for the funds used to reduce the indebtedness of South Jefferson.

On January 6, 1999, S.J. Holding sued Kadco in the Shelby Circuit Court alleging that the conveyance of the Meadowbrook property was fraudulent and that, “[a]t the time of [the] transfer, S.J. Holding was a creditor of and had claims against South Jefferson, which could have been satisfied, in whole or in part, from the transfer of [the Meadowbrook] property.”

In its complaint, S.J. Holding alleged that at the time the Meadowbrook property was sold to Kadco South Jefferson was insolvent and South Jefferson did not receive equivalent value for the Meadow-brook property. Subsequently, both S.J. Holding and Kadco filed motions for a summary judgment, and on March 20, 2002, the circuit court entered a comprehensive order in which it discussed in some detail this Court’s holdings in Folmar & Associates LLP v. Holberg, 776 So.2d 112 (Ala.2000), and Thompson Properties v. Birmingham Hide & Tallow Co., 839 So.2d 629 (Ala.2002), and concluded that Kadco was entitled to a summary judgment. In its order the Court stated, in part:

“As in [Folmar & Associates LLP v.] Holberg, [776 So.2d 112 (Ala.2000),] in the present case, the plaintiff, S.J. Holding, is seeking to void a transfer made by a third party, in this case, Burnett, the receiver, not by the actual debtor, South Jefferson. Like Ms. Holberg, S.J. Holding contends that Burnett was in control of South Jefferson’s assets, including [Meadowbrook] and therefore is effectively the debtor and is liable under the [AUFTA]. While it is undisputed that Burnett was in control of South Jefferson’s assets at the time of the transfer, under Holberg, that fact is not dispositive. As the Holberg Court reasoned, ‘[w]e have found no case in which the provisions of the [AUFTA] have been extended to apply to transfer-ors other than the debtor [itself].... [B]y its plain language, [the AUFTA] does not apply to claims against third-party transferors.’ 776 So.2d at 118. Burnett was effectively a third-party transferor.”

The Court then found as follows:

“As discussed, in Thompson Properties [v. Birmingham Hide & Tallow Co., 839 So.2d 629 (Ala.2002),] the Alabama Supreme Court narrowly qualified Hol-berg such that when the debtor’s alter ego made the transfer the transfer is made by the debtor. Unlike in Thompson Properties, however, in the case at bar, the court has not found, nor has S.J. Holding even alleged, that Burnett is the alter ego of South Jefferson. Therefore the facts of the present case are more similar to those in Holberg than in Thompson Properties. As such, the Holberg holding applies to this case. The Court accordingly finds that the transfer of [Meadowbrook] from Burnett to Kadco was not made ‘by the debtor.’ Therefore, the transfer is not subject to the [AUFTA]. Consequently, as a matter of law, the transfer of Meadow Brook to Kadco was not fraudulent under Alabama Code sections 8-9A-5(a) or 9-9A-4(a).”

Standard of Review

In American Liberty Insurance Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala.2002), this Court stated:

“We review this case de novo, applying the oft-stated principles governing appellate review of a trial court’s grant or denial of a summary-judgment motion:
“ ‘We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. “Substantial evidence” is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.’
“Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2001) (citations omitted).”

Analysis

The trial court did not err in determining that the facts of this case are more similar to those in Holberg than those in Thompson Properties. In Holberg, this Court considered whether parties who were in control of a debtor’s assets could be considered to be the “debtor” within the meaning of the AUFTA. The debtor, William Cagle, was ordered to pay his former wife, Pamela Holberg, alimony in gross, in the amount of $960,000, payable monthly, at the rate of $4,000 per month, beginning on November .1, 1993. Cagle remarried and then suffered a stroke. Cagle was a partner in a real-estate development firm, and he began taking cash advance loans from the firm against his ownership in the firm. Because of his poor health, Cagle executed a durable power of attorney in favor of his new wife, Regina Cagle, on January 22, 1996. The couple continued to receive monthly payments from Cagle’s partnership, but Cagle quit making the alimony payments in March 1997. Cagle died on September 25, 1997, and because the total of his cash advances exceeded the value of his interest in the partnership, his estate was declared insolvent.

Holberg sued Regina Cagle; Michael Strojny, Cagle’s financial advisor; and the partnership, alleging among other things, that a conspiracy to commit fraudulent transfers had occurred. This Court, holding that Holberg could not maintain an action alleging a conspiracy to fraudulently transfer, stated:

“[W]e must consider whether Holberg can maintain any claim against these defendants for conspiracy to commit fraudulent transfers. The Alabama Uniform Fraudulent Transfer Act, codified at Ala.Code 1975, §§ 8-9A-1 to -12, provides that ‘certain transfers are void or voidable if they are made to the detriment of a creditor.’ Russell v. Russell, 758 So.2d 533, 538 (Ala.1999). The plain language of the statutes applies only to conveyances ‘made by a debtor.’ See §§ 8-9A-4 and -5. ‘Debtor’ is defined as ‘[a] person who is liable on a claim.’ § 8-9A-l(6). The defendants contend that Holberg cannot maintain a claim under the statute because, they say, neither Folmar nor Strojny is Holberg’s ‘debtor.’ Rather, the defendants contend, Holberg’s claim under the fraudulent-transfer statute lies against Cagle’s estate.
“Holberg argues that this Court should give the fraudulent-transfer statute a liberal construction and apply it to her claims against the defendants. She quotes Taylor v. Peoples Fertilizer Co., 270 Ala. 243, 254, 117 So.2d 180, 191 (1959), for the proposition that ‘[t]his [Cjourt has held that transactions to defeat creditors are viewed ... with disfavor and the statute therefore should receive a liberal construction.’ However, that case involved a conveyance of property by the debtor. A liberal construction of the fraudulent-transfer statute does not require a holding that the statute applies to transfers made by someone other than the debtor. Additionally, the Court of Civil Appeals has stated:
“ ‘Although the fraudulent conveyance statute is given a liberal construction, see Jesse P. Evans, Alabama Property Rights and Remedies, § 31.1, 470 (1994), and “[t]he manner or form of the transfer or conveyance is generally immaterial so long as the debtor, through a fraudulent device, puts his or her property beyond the ordinary reach of the creditor,” id. at § 31.2, 473, every conveyance that frustrates a creditor is not a fraudulent conveyance under the statute.’
“Aucoin v. Aucoin, 727 So.2d 824, 827 (Ala.Civ.App.1998). Even a liberal construction of the statute requires some demonstration that the debtor has put his property beyond the reach of a creditor.
“Holberg has cited no cases in which someone other than the debtor has been held liable under the fraudulent-transfer statute. Holberg simply argues that her claims should be valid under the statute because, she argues, Folmar was fraudulently transferring Cagle’s assets to Regina; Regina was acting on behalf of Cagle when she used the power of attorney to transfer his assets into her name; and Strojny was ‘concocting schemes for Regina to fraudulently put Cagle’s assets into her name.’ However, Hol-berg’s claims are missing one essential element for a cause of action pursuant to the Alabama Uniform Fraudulent Transfer Act: The transfer of property by the debtor.
“The purpose of the Alabama Uniform Fraudulent Transfer Act is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach. The plain language of the statute makes it applicable only to transfers ‘made by a debtor.’ In previous cases involving statutory interpretation, this Court has stated:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))....
“We have found no case in which the provisions of the Alabama Uniform Fraudulent Transfer Act, §§ 8-9A-l to -12, have been extended to apply to transferors other than the debtor. Hol-berg argues that the defendants were in control of the debtor’s assets and, therefore, should be held liable. Hol-berg also argues that — because the judgment debtor is deceased, the defendants have rendered his estate insolvent, and the wife of the debtor is bankrupt — this Court should permit her to hold the defendants liable under the fraudulent-conveyance statute. Even if we accepted Holberg’s argument that Folmar and Strojny engaged in a conspiracy to defraud her, the Alabama Uniform Fraudulent Transfer Act, by its plain language, does not apply to claims against third-party transferors. Holberg’s claim under, that Act should have been asserted against the debtor (Cagle) or his estate. While there may be valid policy arguments for extending the Act to apply to transferors who are in control of the debtor’s assets, ‘it is not for the Judiciary to impose its view on the Legislature.’ Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Therefore, we conclude that the trial court erred in denying the defendants’ motions for a summary judgment on the fraudulent-conveyance claims. Our resolution of this issue makes it unnecessary to address the question whether a plaintiff can recover money damages pursuant to the Alabama Uniform Fraudulent Transfer Act, or whether remedies under that Act are limited to recovering the fraudulently transferred property.”

776 So.2d at 117-18.

In Thompson Properties, this Court held that the actual transferor, Eastern Valley Properties, was an alter ego of the debtor, and that the plaintiff could maintain an action under the AUFTA. The debtor, Ron Rockhill, the president and sole shareholder of Eastern Valley Properties, purchased a house, a condominium, and a vacant lot in the name of Eastern Valley Properties. Following this purchase, Rockhill lived in and used both the house and the condominium. Two years later, in 1990, Thompson Properties obtained a judgment against Rockhill for over $400,000. Rockhill filed a petition in bankruptcy. In May 1993, the bankruptcy court held that $113,760 of the $400,000 judgment was exempt from discharge in bankruptcy. Forty-two days later, Rock-hill, acting through Eastern Valley Properties, sold the house, the condominium, and the vacant lot to Birmingham Hide for $194,000. Rockhill used the $194,000 to settle other claims against him and Eastern Valley Properties. Rockhill continued to live in and use the house and the condominium, rent-free. In addition, when Birmingham Hide sold the house and the vacant lot, Birmingham Hide paid Rock-hill, rather than Eastern Valley Properties, a portion of the proceeds. The president of Birmingham Hide acknowledged that the payment'was for RockhiU’s “undocumented interest.”

Thompson Properties sued Birmingham Hide seeking to set aside Eastern Valley’s transfer of the condominium to Birmingham Hide. This Court held that the trans-feror, Eastern Valley, was in,fact the alter ego of Rockhill and that Rockhill was the actual transferor. This Court stated:

“It is undisputed that at the time the Eastern Valley Properties were transferred to Birmingham Hide, Rockhill was a debtor of the Partnerships [Thompson Properties], by virtue of the prior judgments in the Partnerships’ favor against Rockhill that the bankruptcy court had declared nondischargeable. Moreover, notwithstanding the trial court’s ruling — -which formed the basis of its summary judgment in favor of Birmingham Hide — that Eastern Valley was not, for purposes of the AUFTA, a debtor of the Partnerships when the transfer occurred, we conclude that Eastern Valley was, for purposes of the AUFTA, a ‘debtor’ at the time of the transfer, by virtue of the default judgment entered against Eastern Valley, in which the trial court declared that, at the time of the transfer, Eastern Valley was the alter ego and a mere instrumentality of Rockhill and that Eastern Valley was liable to the Partnerships for the judgments the bankruptcy court determined to be nondischargeable. The trial court certified the default judgment as final, and no party appealed the default judgment. Because of the trial court’s declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, it did not recognize Eastern Valley as an entity separate and apart from Rockhill. . See Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 970 (Ala.1994); Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 28, 29 So.2d 298, 302 (1947). For purposes of the AUFTA, then, Eastern Valley and Rockhill could be considered ‘one and the same’ at the time of the transfer. Thus, the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer ‘made by a debtor’ under the language of the AUFTA.
“Birmingham Hide argues that it is not bound by the trial court’s judgment declaring that Eastern Valley was the alter ego and a mere instrumentality of Rockhill at the time of the transfer. Consequently, Birmingham Hide says, Eastern Valley is not a ‘debtor’ for purposes of the Partnerships’ claims under the AUFTA. However, even absent the trial court’s declaration that Eastern Valley was the alter ego and a mere instrumentality of Rockhill, the Partnerships presented sufficient evidence to establish a genuine issue of material fact as to whether the transfer of the Eastern Valley Properties to Birmingham Hide was a transfer made by a debtor. For instance, the Partnerships presented evidence indicating that when the property was transferred to Birmingham Hide, Rockhill retained an ‘undocumented interest’ in the property, for which, pursuant to an agreement made at the time the property was conveyed to Birmingham Hide, Rockhill was paid by Birmingham Hide after the property was resold to bona fide purchasers. The deeds evidencing the conveyance to Birmingham Hide of the Eastern Valley Properties — in which Rockhill retained the ‘undocumented interest’ — were signed by Rockhill. If, as the evidence indicated, the transfer included Rock-hill’s undocumented interest, the transfer was one ‘made by a debtor.’ ”

839 So.2d at 633-34. See also Woodard v. Funderburk, 846 So.2d 363 (Ala.Civ.App.2002), where a father, Larry Funderburk, acting as his son’s attorney-in-fact, conveyed his son’s real property to Larry’s wife, Gina. The son died, and the mother of his child, Sabrina Woodard, sued Larry and Gina Funderburk, seeking to have the transfer set aside on the ground that she had a claim for unpaid child support. The Court of Civil Appeals, citing Holberg, held that even though Larry was his son’s attorney-in-fact for purposes of the transfer, he was not Sabrina’s debtor, and, therefore, there was no fraudulent transfer. S.J. Holding, in its reply brief, argues that “the Court of Civil Appeals has completely eviscerated the [AUFTA], effectively allowing a debtor to defraud his creditor as long as he uses an agent to put his assets beyond the reach of his creditors.” S.J. Holding asks this Court to reverse the holding in Woodard.

S.J. Holding argues that the trial court erred in holding that the Meadowbrook property was not transferred by the debt- or, South Jefferson, and states, in part, the following:

“The undisputed evidence in the case conclusively establishes that the Mea-dowbrook property was transferred to Kadco by South Jefferson. Specifically, the evidence established that South Jefferson acquired the property in either 1985 or 1986 and was the sole owner of the property until it was sold to Kad-co.... Accord, Motion for Approval, of Sale and Transfer of Property of [EICA], ... (‘Comes now, Nelson Burnett, as Receiver of [EICA], ... and petitions this Court to approve the sale and transfer of certain real property currently owned by South Jefferson ... ’ (emphasis added.)).
“... The quitclaim deed conveying the Meadowbrook property to Kadco specifically identifies South Jefferson as the Grantor.... Although Burnett signed the quitclaim deed, he expressly did so on behalf of ‘South Jefferson Company, Inc.’ as ‘Its President.’ See id. Accord, Supplemental Affidavit of Nelson Burnett, ... (‘In my capacity as President of South Jefferson Company, Inc., I executed the quitclaim deed conveying the Meadowbrook property from South Jefferson to Kadco.’) Therefore the undisputed evidence in this case conclusively establishes that South Jefferson was the entity which transferred the Meadow-brook property to Kadco and that Burnett was involved in the transaction as South Jefferson’s corporate representative....”

(S.J. Holding’s brief, p. 20; citations omitted.) S.J. Holding further argues:

“Notwithstanding Kadco’s unsupported allegation to the contrary, there is no evidence that Burnett ‘was only president by virtue of his being the court-appointed receiver for EICA.’ There is certainly nothing in the liquidation order of the Receivership Court that even arguably supports that contention.... Rather, the undisputed evidence establishes that Burnett was [president of South Jefferson by virtue of the fact that he was ‘duly elected’ to that position.”

(S.J. Holding’s reply brief, p. 4; citations omitted.)

Kadco strongly relies on this Court’s holding in Holberg, supra, and the holding of the Court of Civil Appeals in Woodard. Kadco argues that the transferor is that person who controls the asset, not just the person who owns the asset. Kadco states:

“Even though Burnett sold the Mea-dowbrook property as president of South Jefferson, he was only president by virtue of his being the court-appointed receiver for EICA. Being a court-appointed receiver, Burnett did not seek to sell the property without the Court’s approval. The mere fact that he was the president of South Jefferson does not make the debtor the transferor....
“... [I]n this case, Burnett was serving as president of South Jefferson by virtue of his court-appointment as receiver. It was Burnett who sought court approval of the sale and authorized and directed the sale and transfer of the Meadowbrook property. Just as an attorney-in-fact is not a debtor, so also a court appointed receiver is not a debtor, since neither is hable on the debt.
“S.J. Holding emphasizes that it was not Burnett who actually transferred the property, but South Jefferson which did so. Technically, South Jefferson did transfer the property, since it held title to it. So also- — -technically—Larry Fun-derburk’s son [in Woodard v. Funderburk] transferred his property to his mother. However, this Court and the Court of Civil Appeals have focused on who controls the asset in determining the identity of the transferor.... In this case, Nelson Burnett, as receiver of the parent insurance company, controlled the asset. In his capacity as receiver, and for purposes of completing the liquidation of EICA, Burnett sought and obtained approval to sell an asset of South Jefferson. The transferor was, for purposes of the [AUFTA], Nelson Burnett, [as receiver for EICA], not South Jefferson.”

(Kadco’s brief, pp. 11-14; citations omitted.)

Based on the undisputed facts of this case, we believe that Kadco and the trial court have correctly interpreted Alabama law that delineates when and under what circumstances a person is a “debtor” within the meaning of the AUFTA. We conclude, therefore, that it was Burnett, acting as the receiver of EICA pursuant to a court order, who transferred the Meadow-brook property, not South Jefferson. The record clearly establishes that Burnett was appointed receiver of EICA in September 1992 and that he was ordered to “take immediate possession, custody and control of [EICA’s] property, both real and personal, ... including but not limited to ... all real estate, [and] stocks.... ”

It is clear in this case that Burnett filed a motion for court approval of the sale of the Meadowbrook property, as the receiver of EICA, and that the circuit court approved the sale of the Meadowbrook property by Burnett, as the receiver of EICA. Applying the rationale set out by this Court in Holberg, it seems clear that the grantor in this case was Burnett, acting as EICA’s receiver and not as South Jefferson’s alter ego; consequently, the trial court did not err in holding that the provisions of the AUFTA did not apply in this ease. The judgment of the trial court, therefore, is affirmed.

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 SEE, BROWN, and STUART, JJ., concur.

HARWOOD, J., concurs in the result.

      . Kadco’s counterclaim alleged that it had entered into contracts for the sale and development of certain portions of the real property that was the subject of the alleged fraudulent transfer and that S.J. Holding “brought this action maliciously and intentionally for the purpose of preventing [Kadco] from performing under and pursuant to the terms of those contracts.” Kadco also alleged that it had developed business relationships with "vendors, potential purchasers, builders, and other persons,” in connection with the development of the property and that S.J. Holding brought this action “for the purpose of interfering with the business relationship between [Kadco] and such parties.” In addition Kad-co alleged that S.J. Holding had filed "a notice of the pendency of this lawsuit,” and that that notice "constitutes a cloud on the title of [Kadco] and prevents [Kadco] from being able to sell or otherwise utilize the property,” and that the notice was filed "maliciously and intentionally for the purpose of preventing [Kadco] from the proper utilization of the property." Kadco also alleged that S.J. Holding, “its agents, servants and employees, and others have conspired, connived, and contrived, to commit the acts and wrongs referred to in the preceding [counterclaims,” and that Kadco "is unable to sell any property ... that is the subject of this action.”

      . The order of the court reads, in part, as follows:
      "Nelson Burnett, as Chief of the Receivership Division of the Alabama Department of Insurance, ... under the provisions of Section 27-2-53 and Chapter 32 of Title 27, Code of Alabama 1975, be and is hereby appointed Receiver of all property, business, assets (general or other), affairs and estate of said Defendant EICA, and is directed to take immediate possession, custody and control of said property, both real and personal, ... including but not limited to ... evidence of debt and all other property and assets of every kind whatsoever belonging to EICA, including but not limited to, all real estate, stocks, bonds, ... and rights of action of any kind.
      "Nelson Burnett, as Receiver of Defendant EICA, shall have authority to negotiate sales of property ... or other assets of Defendant EICA when necessary or desirable, but if he shall receive an offer for same, before making a private or public sale, Nelson Burnett, as Receiver, shall report the terms of such offer to the Court for such action or approval as the court may deem proper.”
      Soon thereafter, the trial court ordered that EICA be liquidated pursuánt to the provisions of the Alabama Insurers Liquidation Act. In the liquidation order, the trial judge vested the receiver "with title to all property, assets, contracts and rights of action of EICA.” The order also directed the receiver to notify all creditors of EICA to present their claims against EICA by May 1, 1993.

      . Baker was president of South Jefferson from 1983 to December 1992.

      . EICA owned more than 90% of the stock of South Jefferson.

      . The notice of the special shareholders’ meeting stated that the meeting would be held "at the principal office of the company, 514 South McDonough Street, Montgomery, Alabama 36104 on September 38[sic], 1995 at 9:30 a.m. C.S.T.” The resolution of the board of directors was dated September 28, 1995. The stated address, 514 South McDonough Street, Montgomery, Alabama 36104, was, at that time, the address of the State Department of Insurance, receivership division.

      . We note that the letter is written on the stationery of the State Department of Insurance, receivership division, and that Nelson ■ Burnett is shown on the letterhead as being the chief of the receivership division.

      . We note that both letters were addressed to Burnett at the 514 South McDonough Street, Montgomery, Alabama, address.

      . No petition for a writ of certiorari was filed asking this Court to review the decision of the Court of Civil Appeals in Woodard; that court issued its certificate of judgment on October 18, 2002.

      . The record clearly shows that EICA owned over 90% of South Jefferson, and that Baker, South Jefferson's long-time president, was no longer president upon Burnett’s election to that office in December 1992. The record also shows that all correspondence signed by Burnett as South Jefferson's president was written on State Department of Insurance, receivership division, stationery. The "corporate offices” of South Jefferson was located in the receivership division's office.