author: LYONS, Justice.

text:
    Ex parte Leroy HARRIS, Esther E. Harris, Phillip W. Lovell, and Leah C. Lovell. (In re Leroy Harris, Esther Harris, Phillip Lovell, and Leah C. Lovell v. Steven Shelton and Julie Stapp Shelton).
    1001788.
    Supreme Court of Alabama.
    Feb. 15, 2002.

      Bill G. Hall and D. Milburn Gross, Jr., of Abies, Baxter, Parker & Hall, P.C., Huntsville, for petitioners.
    William J. Gibbons, Jr., of Gibbons & Furman, Huntsville, for respondents.
   LYONS, Justice.

Leroy Harris, Esther E. Harris, Phillip W. Lovell, Leah C. Lovell (“the Harris-Lovell group”) and Steven Shelton and Julie Stapp Shelton (“the Sheltons”) were coguarantors of several loans owed by The Milling Company Enterprises, Inc. (“the Milling Company”) to First Commercial Bank (“the Bank”). The Harris-Lovell group sued the Sheltons, seeking contribution for the payment of the debt owed by the Milling Company and guaranteed by the Harris-Lovell group and the Sheltons. The Sheltons filed a motion for a summary judgment, arguing that the Harris-Lovell group had waived their right to contribution. The trial court entered a summary judgment in favor of the Sheltons. The Court of Civil Appeals affirmed the summary judgment. Harris v. Shelton, 837 So.2d 276 (Ala.Civ.App.2001).

This Court granted certiorari review to determine: 1) whether the right of contribution between guarantors may be waived by separate agreements between the lender and the principal debtor, in the absence of a single agreement to which all guarantors are signatories, by application of the integration rule, 2) if the integration rule does apply, whether the Court of Civil Appeals erred in rejecting antecedent oral understandings as sufficient to establish an intent contrary to an intent to apply the rule of integration, and 3) whether the waiver provision in one of the guaranty agreements was ambiguous. We hold that the integration rule can operate so as to bind coguarantors pursuant to separately executed agreements dealing with their rights of contribution, that on the facts here presented parol evidence is necessary to determine whether the integration rule applies, and that the waiver provision in the July 9, 1997, guaranty agreements is ambiguous. We reverse and remand.

I. Facts

The Harris-Lovell group and the Shel-tons were involved in the operation of a restaurant in Huntsville known as “The Mill.” The Mill was owned by the Milling Company. The Harris-Lovell group and the Sheltons provided the initial capital to the Milling Company to purchase, renovate, and operate the restaurant. Because the initial capital was insufficient to sustain The Mill’s daily operations, the Milling Company periodically borrowed money from the Bank.

As a condition of the loans, the Bank required the Harris-Lovell group and the Sheltons to guarantee 50% of the total amount of the loans to the Milling Company. The parties were asked to sign individual guaranty agreements, and Esther Harris (a member of the Harris-Lovell group) expressed concerns about agreeing to be personally liable for 50% of the face value of the loans in light of the fact that she did not have a 50% ownership interest in the Milling Company. Harris expressed those concerns during a meeting between the Harris-Lovell group and the Sheltons before they signed the individual guaranty agreements. According to Harris, Steven Shelton told her “not to worry, that [she] would never have to pay or be responsible for these loans and if [they] have to pay, then [they] would each be responsible one-third [the Lovells], one-third [the Harris-es], and one-third [the Sheltons].” According to Esther Harris, each of the parties agreed with Shelton’s statement.

From March 3, 1997, to February 3, 1999, the Harrises, the Lovells, and the Sheltons each signed five individual guaranty agreements with the Bank, each evidencing a new loan. All of the agreements, with the exception of the guaranty agreements dated July 9, 1997, contained the following provision:

“10. The Undersigned waives any claim, remedy or other right which the Undersigned may now have or hereafter acquire against Borrower or any other person obligated to pay Indebtedness arising out of the creation or performance of the Undersigned’s obligation under this guaranty, including, without limitation, any right of subrogation, contribution, reimbursement, indemnification, exoneration, and any right to participate in any claim or remedy the Undersigned may have against the Borrower, collateral, or other party obligated for Borrower’s debts, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law.”

The guaranty agreements dated July 9, 1997, contain the following provision:

“13. SUBROGATION. Guarantor hereby irrevocably waives and releases the Borrower from all ‘claims’ (as defined in Section 101(5) of the Bankruptcy Code) to which Guarantor is or would, at any time, be entitled by virtue of its obligations under this Guaranty, induding[,] without limitation, any right of subrogation (whether contractual, under Section 509 of the Bankruptcy Code or otherwise), reimbursement, contribution, exoneration or similar right against the Borrower, any co-guarantor, any third party or any Collateral.”

The Milling Company defaulted on its loans to the Bank, and the Bank called upon each of the guarantors to satisfy the debt. The Harris-Lovell group paid the entire amount due in accordance with the guaranty agreements. The Sheltons failed to pay any amount to the Harris-Lovell group in contribution for the discharge of the common obligation.

II. The Standard of Review

In reviewing the disposition of a motion for a summary judgment, we use the same standard used by the trial court in determining whether the evidence before it made out a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co,, 531 So.2d 860, 862 (Ala.1988). When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then 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.” West v. Founders Life Assurance Co. of Florida., 547 So.2d 870, 871 (Ala.1989). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).

III. Does the Integration Rule Apply to Separate Guaranty Agreements Executed by Coguarantors?

The Harris-Lovell group first contends that a guarantor cannot waive the right to contribution by the execution of a contract between individual guarantors and the lender, in the absence of one agreement to which all of the guarantors are signatories. The Court of Civil Appeals, relying upon Kandlis v. Huotari, 678 A.2d 41 (Me.1996), concluded that an agreement between all of the guarantors was unnecessary because the individual guaranty agreements separately executed between the Bank and each guarantor constituted one contract by which each guarantor was bound. According to the Court of Civil Appeals, because all of the guaranty agreements were executed at the same time, by the same parties, for the same purpose, and contained the same language, all of the guaranty agreements constituted an integrated agreement that should be considered and construed as one contract, waiving the right to contribution among the guarantors.

Our research reveals that the question whether the right of contribution may be waived by separate guaranty agreements between each guarantor, the principal debtor, and the creditor is one of first impression in Alabama. In Layne v. Garner, 612 So.2d 404, 406-08 (Ala.1992), this Court enforced the terms of a single guaranty agreement signed by multiple guarantors prohibiting the guarantors from seeking contribution from each other “until all of the indebtedness shall have been fully paid and discharged.” The result reached in Layne clearly recognizes that a guarantor’s right to contribution may be affected by the terms of the guaranty agreement that he or she, along with the other guarantors, signed.

Other jurisdictions have recognized the general rule that the right to contribution can be destroyed only by an agreement between the obligated parties. See Kandlis, 678 A.2d at 42-43, United States v. Immordino, 534 F.2d 1378, 1382 (10th Cir.1976); see also 18 Am.Jur.2d Contribution §§ 4, 27, 33 (1985). The Supreme Judicial Court of Maine has recognized an exception to this rule when separate guaranty agreements can be read together as a single contract under the theory of integration. Kandlis, 678 A.2d at 43.

In Kandlis, Reiser Homes sought financing from Oxford Bank and Trust. 678 A.2d at 42. As a condition of the loan, the Bank required that all the shareholders of Reiser and their spouses sign identical personal guaranty agreements for the full amount of the loan. Reiser subsequently defaulted on the loan. The Bank brought several actions seeking judgments against the guarantors. One of the guarantors, Randlis, paid the Bank $375,000, an amount in excess of his pro rata share of the debt. Randlis filed a cross-complaint against the other guarantors for contribution. Id.

The defendant coguarantors argued that by the express language in the guaranty agreements Randlis had waived his right to seek contribution from the coguaran-tors. Id. Recognizing the general rule that the right of contribution can be destroyed only by an agreement between the obligated parties, the Court held that even if the relevant language of a guaranty agreement contains an express waiver of the guarantors’ rights to contribution, the waiver is enforceable by one guarantor against another only if the separate guaranty agreements can be read together as a single contract. Id. at 43. The Maine Court held that, in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same contracting parties, for the same purpose, and in the course of the same transaction will be considered and construed together, because they are, in the eyes of the law, one contract or instrument. Kandlis, 678 A.2d at 43. Because the guarantors signed identical guaranty agreements, for the same purpose, and all within the same period, the Court held that if the guaranty agreements contained an express waiver of contribution, the individual agreements could be construed together to form a single contract containing an express waiver of contribution that was enforceable among and between the guarantors. Id. at 43.

We find Kandlis persuasive, and we hold that if the language of separate guar-, anty agreements contains an express waiver of each guarantor’s right to contribution, the waiver is enforceable by one guarantor against another so long as the separate guaranty agreements can be read together as a single contract.

IV. Should the Integration Rule Be Applied On the Facts Before Us?

The Harris-Lovell group contends that even if the integration rule permits waiver of contribution, the separate guaranty agreements the guarantors signed do not constitute an integrated agreement because those agreements were signed by different parties and because the intention of the parties was not to create an integrated agreement. Although we have stated that two or more instruments executed contemporaneously by the same parties in reference to the same subject matter constitute one contract, this Court has not firmly held to a rule requiring that the parties be the same. See Haddox v. First Alabama Bank, 449 So.2d 1226, 1229 (Ala.1984).

In Haddox we allowed the integration of several documents, including a loan agreement, a commitment agreement, a promissory note, and a mortgage, all signed by different parties, to be construed as one contract to establish the terms of the contract. Haddox, 449 So.2d at 1229. Moreover, other jurisdictions have recognized that two or more agreements may be construed as one contract even though the parties to the agreements are not all the same, such as where some of the documents are executed by parties who have no part in executing the others, provided that the agreements in question relate to the same subject matter. 17A C.J.S. Contracts § 315 at 338 (1999). Each of the guaranty agreements signed by the Harris-Lovell group and the Sheltons was made for the same purpose — to secure financing for the daily operation of a restaurant that each of the guarantors participated in opening and operating.

The Harris-Lovell group also argues that even if the integration rule applies to contracts signed by different parties, the rule does not apply in this case because, it says, the threshold requirement under the general rule of integration — that there be an “absence of anything to indicate a contrary intention” — was not satisfied in this case. According to the Harris-Lovell group, the oral agreement to each be responsible for one-third of any liability to the Bank that the parties entered into indicated an intent contrary to an intent to waive contribution. The Court of Civil Appeals rejected the Harris-Lovell group’s argument, quoting the basic principle of contract law that “ ‘[an oral] agreement as well as all prior negotiations merge[s] into the written contract between the parties.’ ” 837 So.2d at 280, quoting League v. Giffin, 347 So.2d 1332, 1333 (Ala.1977).

The general rule is that

“[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.”

3 A. Corbin, Contracts § 573 at 357 (1960) (footnote omitted), cited in Hurst v. Nichols Research Corp., 621 So.2d 964, 966 (Ala.1993), and Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So.2d 431, 434 (Ala.1979). However, the preliminary question is whether the guaranty agreements, when construed together, are a complete and accurate integration of the agreement between the parties. These separate agreements contain no merger clause, i.e., no provision reciting that the instrument constitutes the entire agreement between the parties. Because the written document alone is insufficient, we answer this question by considering extrinsic evidence, including the conduct and language of the parties and the surrounding circumstances. See Hibbett Sporting Goods, Inc., 375 So.2d at 436. According to Professor Arthur L. Corbin, “no relevant evidence, whether parol or otherwise, is excluded” when attempting to determine whether a writing is a complete and accurate integration of the agreement of the parties. 3 A. Corbin, Contracts § 573 at 360. Professor Corbin also observes:

“Proof of [the contract’s] completeness and accuracy, discharging all antecedent agreements, must be made in large part by the oral testimony of parties and other witnesses. The very testimony that the ‘parol evidence rule’ is supposed to exclude is frequently, if not always, necessary before the court can determine that the parties have agreed upon the writing as a complete and accurate statement of terms. The evidence that the rule seems to exclude must sometimes be heard and weighed before it can be excluded by the rule.”

3 A. Corbin, Contracts § 582 at 449-50 (footnotes omitted).

According to Corbin, a trial court can receive parol evidence of the alleged negotiations leading to a written agreement only on the question whether the offered writing was mutually assented to as a complete integration. “[I]f, in spite of the received testimony, the court finds that the writing was mutually assented to as a complete integration, it thereby finds that the negotiations testified to were discharged and nullified by the parties themselves.” 3 A. Corbin, Contracts § 582 at 450, n. 80; see also Wigmore, Evidence § 2430(2) at 98-99 (1981); Hurst, 621 So.2d at 967; Hibbett Sporting Goods, Inc., 375 So.2d at 436.

Thus, the Court of Civil Appeals erred in affirming the trial court’s summary judgment and refusing to consider the alleged oral agreement the parties entered into before signing the written guaranty agreements and any other relevant evidence concerning the conduct of the parties or the circumstances surrounding the execution of the agreements. Such evidence should be considered in initially determining whether the guaranty agreements constituted a complete and accurate integration of the agreement between the parties. If the evidence indicates that the separately executed guaranty agreements were intended to constitute the complete and accurate integration of the agreement between the parties, antecedent oral agreements between the parties may not be used to contradict the terms of the guaranty agreements. On the other hand, if the evidence establishes that antecedent oral agreements existed and that the parties did not intend for the execution of multiple separate guaranty agreements to replace the antecedent oral agreements and thereby become the final understanding between the coguarantors on the subject of contribution, then the rights as between the coguarantors cannot be defeated by provisions in the separately executed guaranty agreements.

V. Even if the Integration Rule Applies, Does the Waiver Provision in the July 9, 1997, Guaranty Agreements Unambiguously Defeat the Right of Contribution Between Coguarantors?

The Harris-Lovell group also contends that the waiver-of-contribution provision in the guaranty agreements dated July 9, 1997, is ambiguous, making the waiver of contribution a question for the trier of fact. No contention of ambiguity is asserted as to the other four guaranty agreements. The guaranty agreements dated July 9, 1997, contain the following provision:

“18. SUBROGATION. Guarantor hereby irrevocably waives and releases the Borrower from all ‘claims’ (as defined in Section 101(5) of the Bankruptcy Code) to which the Guarantor is or would, at any time, be entitled by virtue of its obligations under this Guaranty, including!,] without limitation, any right of subrogation (whether contractual, under Section 509 of the Bankruptcy Code or otherwise), reimbursement, contribution, exoneration or similar right against the Borrower, any co-guarantor, any third party or any Collateral.”

The Harris-Lovell group argues that the waiver is intended to apply only to the “Borrower” and not to the guarantors. According to the Harris-Lovell group, the first clause in the provision ends in a comma following the word “Guaranty” and the second clause of the provision is set off only to define what “claims” the guarantor might have against the borrower. The Harris-Lovell group argues that if this provision was intended to waive all claims against coguarantors the provision would have read, “Guarantor hereby irrevocably waives and releases the Borrower and any Coguarantor from any ‘claims....’”

Whether a contract is ambiguous is a question of law for the court to determine. Haddox, 449 So.2d at 1228. When the terms of a contract are clear and certain, it is the duty of the court, not the jury, to analyze the contract and determine the meaning of the contract. Palmer v. Perry County Bd. of Educ., 496 So.2d 2, 5 (Ala.1986). However, once a court determines that an instrument is ambiguous or uncertain in any respect, it becomes a question for the factfinder to determine the true meaning of the contract. Shadrick v. Johnston, 571 So.2d 1008, 1013 (Ala.1990). Ambiguity exists when a term is reasonably susceptible to more than one interpretation. Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191, 194 (Ala.1991). If a court determines that a contract is ambiguous, extrinsic evidence will be allowed to clarify the contract. Poole v. Henderson, Black & Greene, Inc., 584 So.2d 485, 487 (Ala.1991).

After careful examination of the July 9, 1997, guaranty agreements, we must agree that the “waiver” provision contained in section 13 of those agreements is ambiguous. The first clause of the provision seeks to waive and release only the claims the guarantor would have against the borrower. Compare the language in the other guaranty agreements signed by the Harris-Lovell group and the Sheltons (“The Undersigned waives any claim, remedy or other right ... against the Borrower or any other person obligated to pay Indebtedness ....”) (emphasis added). The last clause of the provision in the July 9, 1997, guaranty agreements, however, purports to waive claims against any co-guarantor. Section 13 of the guaranty-agreements is susceptible to more than one interpretation; therefore, we must remand this cause to the trial court for the factfinder to determine the meaning of the provision.

VI. Conclusion

For the reasons discussed above, the judgment of the Court of Civil Appeals is reversed and the case is remanded to that court. That court is to remand the case to the trial court for that court to determine whether the guaranty agreements constituted a complete and accurate integration of the agreement between the parties, based upon the conduct and language of the parties and the circumstances surrounding the agreement. If the guaranty agreements did not constitute a complete and accurate integration of the contract, the Harris-Lovell group is entitled to contribution from the Sheltons. On the other hand, if the guaranty agreements constituted one integrated agreement between the parties, the factfinder must then, and only then, construe section 13 of the July 9, 1997, guaranty agreements in order to determine whether it acts as a waiver of the guarantor’s right to seek contribution from the other coguarantors. If it does, the Harris-Lovell group would not be entitled to contribution from the Sheltons. If it does not, the Harris-Lovell group would be entitled to seek contribution from the Sheltons only for the amount of the loan guaranteed by the July 9, 1997, agreements.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Leroy HARRIS, Esther Harris, Phillip Lovell, and Leah C. Lovell v. Steven SHELTON and Julie Stapp Shelton.
    2991239.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    Bill G. Hall and D. Milburn Gross, Jr,, of Abies, Baxter, Parker & Hall, Huntsville, for appellants.
    William J. Gibbons, Jr., of Gibbons & Furman, Huntsville, for appellees.
   On Remand from the Supreme Court.

CRAWLEY, Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. In compliance with the Supreme Court’s opinion of February 15, 2002, in Ex parte Harris, 837 So.2d 283 (Ala.2002), the judgment of the trial court is reversed and the cause is remanded to the trial court for proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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


author: MURDOCK, Judge.

text:
    ALABAMA DISPOSAL SOLUTIONS-LANDFILL, L.L.C. v. TOWN OF LOWNDESBORO and Lee Frazer. Alabama Department of Environmental Management v. Town of Lowndesboro and Lee Frazer. Town of Lowndesboro v. Alabama Disposal Solutions-Landfill, L.L.C. and Lowndes County Commission.
    2000294, 2000324 and 2000633.
    Court of Civil Appeals of Alabama.
    May 31, 2002.

      C. Ellis Brazeal III and Tracy H. Beau-champ of Walston, Wells, Anderson & Bains, L.L.P., Binningham, for Alabama Disposal Solutions-Landfill, L.L.C.; and Harry A. Lyles, Office of gen. counsel, Alabama Department of Environmental Management.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for Town of Lowndesboro and Lee Frazer.
    Katy Smith Campbell of Chestnut, Sanders, Sanders, Pettaway & Campbell, P.C., Selma, for Lowndes County Commission.
    Charles B. Paterson and James L. Noles, Jr., of Balch & Bingham, L.L.P., Montgomery, for amici curiae Business Council of Alabama, Association of County Commissions of Alabama, Alabama Chemical Association, Alabama Forestry Association, and Alabama Pulp and Paper Council.
   MURDOCK, Judge.

These cases arise out of a proposal by Alabama Disposal Solutions-Landfill, L.L.C. (“ADS”), to operate a landfill in Lowndes County to be known as the Talla-wassee Ridge Solid Waste Facility.

On August 10, 1998, the Lowndes County Commission (“the County”) adopted a resolution granting “host-government” approval for the landfill. On that same day, the County and ADS entered into a contract. On August 24, 1998, the parties executed an addendum to the contract. The contract and the addendum provided that the County would receive “tipping” fees from ADS; those fees were to be calculated based on the number of tons of waste disposed of at the landfill.

On December 8, 1998, the Town of Lowndesboro (“Lowndesboro”) enacted Ordinance 98-1, prohibiting landfills within its corporate city limits and within its police jurisdiction. Approximately 20 acres of the proposed landfill lie within Lowndesboro’s police jurisdiction, but outside its city limits. At the time the Ordinance was enacted, the County had a solid-waste-management plan in place pursuant to the requirements of § 22-27-47, Ala. Code 1975. Lowndesboro did not have its own solid-waste-management plan; therefore, Lowndesboro fell under the County plan. See § 22-27-47(a).

On January 19, 1999, ADS filed an application with the Alabama Department of Environmental Management (“ADEM”) for a solid-waste permit. Under Ala. Admin. Code, r. 335-13-5-.02(l)(f), an applicant for a solid-waste permit is required to provide ADEM with a list of adjacent property owners. Although Lee Frazer owns land adjacent to the proposed landfill, ADS did not list Frazer as an adjacent property owner; therefore, ADEM did not send her notice, pursuant to Ala. Admin. Code, r. 335-13-5-.03(l)(b)2., of ADEM’s intent to consider ADS’s solid-waste-permit application.

On June 8, 2000, ADEM published notice of its intent to consider ADS’s solid-waste-permit application. ADEM received comments on the proposed landfill and decided that under its regulations, no additional public hearing was necessary. ADEM determined that the permit application met all technical requirements under Division 13 of ADEM’s regulations (Ala. Admin. Code, r. 335-13-1 et seq.), which pertains to solid waste, and on July 19, 2000, ADEM issued a solid-waste permit to ADS (“the ADS Permit”).

At the time ADEM issued the ADS permit, ADEM had developed both phases of a two-phase, solid-waste-management plan for the State pursuant to Article 3 of the Solid Waste Act, § 22-27-40 et seq., Ala. Code 1975. However, ADEM had not formally adopted either phase of the plan as a “final regulation” as contemplated by § 22-27-45(4)d., Ala.Code 1975.

The Administrative Appeal

After ADEM issued the ADS Permit, Lowndesboro and Frazer filed an administrative appeal with the Environmental Management Commission (“EMC”), seeking revocation of the ADS Permit. ADS, as owner of the ADS Permit, intervened as a matter of right in the appeal before the EMC. Lowndesboro and Frazer state that among the issues raised before the EMC were the lack of notice to Frazer and the allegation that the landfill would be in violation of Ordinance 98-1. Extensive discovery was conducted in preparation for a hearing before the EMC, which was set for December 19, 2000. However, the administrative appeal was stayed by an injunction granted by the Montgomery Circuit Court, as outlined below.

The Montgomery County Declaratory-Judgment Action

While the administrative appeal was pending, Lowndesboro and Frazer filed a complaint for a declaratory judgment against ADEM in the Montgomery Circuit Court, seeking to have the ADS Permit declared invalid. Thereafter, Lowndes-boro and Frazer amended their complaint four times and added numerous additional grounds upon which they claimed the ADS Permit should be declared invalid. Among other things, Lowndesboro and Frazer alleged that ADEM’s failure to adopt a state solid-waste-management plan as a regulation, pursuant to § 22-27-45(4)d., violated Article 3 of the Solid Waste Act, and that ADEM failed to notify Frazer, as required by Ala. Admin.. Code, r. 335-13-5-.03(l)(b)2, of ADEM’s intent to consider ADS’s solid-waste-permit application.

On October 24, 2000, Lowndesboro and Frazer filed a request for a stay, seeking to stay all proceedings before the EMC concerning the issuance of the ADS Permit because, they said, (1) ADEM’s failure to adopt a solid-waste-management plan as a final regulation under § 22-27-45(4)d. voided its permitting authority, and (2) the lack of notice to Frazer invalidated the ADS Permit. ADEM filed a response to Lowndesboro’s and Frazer’s stay request, alleging that there was no legal basis for staying the administrative proceedings before the EMC.

On November 3, 2000, a hearing was held on Lowndesboro and Frazer’s request for a stay. At the hearing, ADS appeared and filed a proposed answer and a motion to intervene as a matter of right. The Montgomery Circuit Court accepted ADS’s motion to intervene and conditionally granted intervention for the limited purpose of appearing at the motion hearing.

On November 29, 2000, the Montgomery Circuit Court entered an order, among other things, staying all proceedings pertaining to the issuance of the ADS Permit. That order enjoined “all proceedings concerning the issuance of a Solid Waste Permit to Alabama Disposal Solutions Landfill for the operation of the Tallawassee Ridge Solid Waste Facility ... pending adoption of a State Solid Waste Plan by the Alabama Department of Environmental Management.” ADEM and ADS have appealed to this court from that order, and those appeals (2000294 and 2000324) have been consolidated by this court by agreement of the parties.

On October 9, 2001, the EMC, at the request of ADEM, adopted a state solid-waste-management plan as an “emergency rule” pursuant to Ala.Code 1975, § 41-22-5. See Ala. Admin. Code, r. 335-13-9. Under § 41-22-5, this plan was effective only for 120 days. On February 5, 2002, however, ADEM adopted a state solid-waste-management plan as a final regulation.

As a result of the adoption by ADEM of the emergency rule, the trial court lifted its stay of the administrative proceedings relating to the issuance of the permit. Consequently, Lowndesboro and Frazer move this court to dismiss these appeals as moot.

The relief sought in these appeals by ADEM and ADS was relief from the trial court’s order staying all ADEM proceedings relating to the issuance of the permit. Indeed, the sole basis for the jurisdiction of this court in these appeals was that interlocutory injunctive order. See Rule 4(a)(1)(A), Ala. R.App. P. With the lifting of the stay, there is no longer any need for the relief sought in these appeals. See Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981); Byrd v. Sorrells, 265 Ala. 589, 93 So.2d 146 (1957); Ex parte McFry, 219 Ala. 492, 122 So. 641 (1929). The issues raised in these appeals are thus moot, and this court is without jurisdiction to act. See Siegelman v. Alabama Ass’n of School Bds., 819 So.2d 568 (Ala.2001). We therefore conclude that these appeals are due to be dismissed.

The Loumdes County Declaratory-Judgment Action

On August 4, 2000, ADS and the County filed in the Lowndes Circuit Court a complaint for a declaratory judgment, pursuant to § 6-6-220 et seq., Ala.Code 1975, against Lowndesboro, the mayor of Lowndesboro, and the members of the Lowndesboro town council in their individual and official capacities, seeking to have Ordinance 98-1 declared void and unconstitutional.

On October 3, 2000, Lowndesboro filed an answer to the complaint, a motion to dismiss, and a counterclaim against the County, alleging that the County’s “resolution [granting host-government approval] purportedly enacted in August 1998 is invalid and due to be set aside.” Lowndes-boro offered numerous reasons supporting its position that the County’s resolution granting host-government approval was invalid and that the County’s resulting contract with ADS was, therefore, also invalid.

On October 10, 2000, ADS and, the County filed summary-judgment motions on their declaratory-judgment claims and on Lowndesboro’s counterclaim against the County. Thereafter, in November 2000, Lowndesboro filed three amended answers. After granting one continuance, the Lowndes Circuit Court held a hearing on December 4, 2000, on the summary-judgment motions filed by ADS and the County, despite Lowndesboro’s (unsuccessful) attempt to be allowed further discovery on its counterclaim. On January 26, 2001, the Lowndes Circuit Court entered a judgment declaring Ordinance 98-1 invalid and unconstitutional and enjoining Lowndesboro from enforcing the ordinance. The judgment also held that Lowndesboro’s counterclaim against the County was barred by § 11-12-8, Ala. Code 1975, the statute of nonclaims, because it had not been presented to the County within the one-year period provided in that statute. Lowndesboro has appealed from that judgment.

Because the facts of this case are essentially undisputed, this court must determine whether the trial court misapplied the law to the undisputed facts. Therefore, this court’s standard of review is de novo, and no presumption of correctness inures in favor of the trial court. Ex parte Graham, 702 So.2d 1215 (Ala.1997); Roberts Health Care, Inc. v. State Health Planning & Dev. Agency, 698 So.2d 106 (Ala.1997); Carter v. City of Haleyville, 669 So.2d 812 (Ala.1995).

Lowndesboro raises three procedural issues and one substantive issue. The procedural issues are whether ADS and the County failed to demonstrate a justiciable controversy, whether Lowndesboro’s counterclaim(s) were barred by the statute of nonclaims, and whether the trial court erred in entering a summary judgment without allowing Lowndesboro to conduct discovery. The substantive issue raised is whether the trial court erred in invalidating Ordinance 98-1 on the grounds that it was inconsistent with the Solid Waste Act and that it violated the Alabama Constitution of 1901. We first address the procedural issues raised by Lowndesboro.

A. Justiciable Controversy

Lowndesboro argues that ADS and the County do not present a justiciable controversy ripe for review. Lowndesboro argues that a justiciable controversy does not exist as to ADS because, it says, ADS does not have a present right to begin construction of the landfill because ADS has not obtained a National Pollutant Discharge Elimination System permit. Lowndesboro argues that a justiciable controversy does not exist as to the County because, Lowndesboro says, the County does not have the present right to receive tipping fees until the landfill is completed and is receiving solid waste.

One of the most useful fields of operation for declaratory-judgment statutes is to allow courts to settle questions regarding the validity of statutes so that the perils of proceeding under void enactments are thereby avoided. See Klein v. Jefferson County Bldg. & Loan Assoc., 239 Ala. 460, 195 So. 593 (1940); Ellis v. Pope, 709 So.2d 1161 (Ala.1997). In Chapman v. City of Troy, 241 Ala. 637, 4 So.2d 1 (1941), our Supreme Court stated that the predecessor statute to § 6-6-223 “expressly looks to a declaration of property rights dependent on the construction or validity of a municipal ordinance.” 241 Ala. at 638, 4 So.2d at 2.

At the time this action was filed, the County had the right, pursuant to § 22-27-47(a), to oversee the management of solid-waste disposal within the County. The County had a solid-waste plan in place; Lowndesboro did not. The County also had a contract with ADS and had the right to receive the benefits of that contract, although the benefits were contingent on issuance of the proper permits. The ordinance rendered those rights uncertain, causing the issue of the validity of that ordinance to be ripe for review under § 6-6-223. Lowndesboro’s enactment of Ordinance 98-1 created a conflict between the County and Lowndesboro over who had authority to manage solid-waste disposal in the police jurisdiction of Lowndes-boro. Here, the ordinance declares invalid the very activity authorized by both the State and the County in which the municipality is located.

Legal issues relating to host-government approval may be ripe for review, regardless of whether all necessary permits have been obtained. In Fitzjarrald v. City of Huntsville, 597 So.2d 1378 (Ala.Civ.App.1992), citizens sought a declaratory judgment and preliminary and permanent injunctions preventing the City of Huntsville and its solid-waste-disposal authority from locating solid-waste landfills in a portion of Limestone County located within the city limits of Huntsville. The circuit court concluded that because ADEM had issued no permit to locate a solid-waste landfill in Limestone County, “ ‘the issue [was] moot and premature and a justiciable controversy [did] not exist at the present time.’” 597 So.2d at 1379. This court reversed the judgment of the circuit court and held that the complaint stated justiciable claims that would entitle the citizens to equitable relief. In doing so, this court noted: “It does not matter that ADEM has not issued a permit yet. ADEM’s decision is separate and apart from the city’s decision.” 597 So.2d at 1380.

We conclude that ADS and the County-presented a justiciable controversy ripe for review. The complaint filed by ADS and the County stated claims that, if proven, would entitle them to equitable relief; thus, a justiciable controversy existed at the time the complaint was filed. See Stringfellow v. State Farm Life Ins. Co., 743 So.2d 439, 441 (Ala.1999); Save Our Streams, Inc. v. Pegues, 541 So.2d 546, 548-49 (Ala.Civ.App.1988) (stating that a complaint for declaratory judgment is ripe for review if a justiciable controversy exists at the time the complaint is filed), cert. denied, 541 So.2d 549 (Ala.1989).

B. Lowndesboro’s Counterclaim and the Statute of Nonclaims

Lowndesboro argues that its “counterclaims” against the County are not barred by the statute of nonclaims, § 11-12-8, Ala.Code 1975, because, Lowndesboro says, there is no justiciable controversy and it is therefore impossible for its claims to be barred by the statute of nonclaims. Because we have concluded that there indeed was a justiciable controversy, this argument does not support reversal of the trial court’s judgment.

Alternatively, Lowndesboro argues that either its counterclaim was asserted within 12 months of the accrual of its cause of action or that the claims stated therein “relate back” to December 8, 1998, the date the ordinance was passed. Lowndes-boro also argues that even if the statute of nonclaims bars its claims against the County, its claims against ADS are not barred.

First, from our review of the answer and the three amended answers filed by Lowndesboro in this case, we conclude, as did the Lowndes Circuit Court, that Lowndesboro filed only one counterclaim against the County on October 2, 2000, as part of its initial answer to ADS and the County’s complaint. That single claim against the County alleged that the County’s resolution granting host-government approval for the ADS landfill was invalid and was due to be set aside. We conclude that no claim was asserted against ADS. Lowndesboro’s attempt to characterize portions of its amended answers as separate claims is without merit. Lowndes-boro clearly labeled and set out its counterclaim against the County in its first answer.

Lowndesboro argues that its claim “relates back” to December 8, 1998, the date the ordinance was passed, and that its notice of claim was therefore timely. However, the statute of nonclaims is not a statute of limitations to which principles such as “relation back” apply; rather, it is an absolute bar to claims against a County. See City of Birmingham v. Davis, 613 So.2d 1222 (Ala.1992). In Davis, the Supreme Court held that the “relation back” rule under Rule 13(c), Ala. R. Civ. P., and other procedural rules designed to heal violations of the statute of limitations, cannot “heal” violations of notice-of-claims statutes. 613 So.2d at 1224. Davis specifically overruled Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978), wherein the Supreme Court had allowed the substitution of a municipality for a fictitiously named party to “relate back” to the filing of the original complaint for purposes of the notice-of-claim statute, § 11-47-23, Ala.Code 1975 (formerly tit. 37, § 476, Ala.Code 1940 (Recomp.1958)).

Lowndesboro relies on Marvin W. Sumlin Construction Co. v. City of Prichard, 465 So.2d 371 (Ala.1985), as authority for allowing a counterclaim to relate back under Rule 13(c) for purposes of a nonclaim statute. In City of Prichard, the City of Prichard sued Marvin W. Sumlin Construction Company, Inc. (“Sumlin”), for breach of contract, and Sumlin filed a counterclaim arising out of the same contract. The trial court dismissed the counterclaim based on Sumlin’s failure to comply with § 11-47-23. The Supreme Court reversed the trial court’s judgment and stated: “Rule 13(c) ... provides that ‘All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiffs claim arose.’ (Emphasis added.) Thus, Sum-lin’s counterclaim should be considered as having been filed well before the expiration of the two-year limitations period of § 11-47-23.” 465 So.2d at 373. The Alabama Supreme Court did not cite any authority in City of Prichard for applying Rule 13(c) to the statute of nonclaims, and to the extent City of Prichard conflicts with Davis, we recognize that Davis implicitly overruled City of Prichard. We therefore conclude that Lowndesboro’s claim against the County was barred by the statute of nonclaims.

C. Further Discovery

Lowndesboro argues that the Lowndes Circuit Court abused its discretion in not allowing discovery. That court concluded that extended discovery on the issues addressed in the summary-judgment motions was not warranted because all of the issues presented were pure questions of law. Discovery matters are well within the trial court’s discretion. See, e.g., Gollotte v. Peterbilt of Mobile, Inc., 582 So.2d 459 (Ala.1991); see also Naramore v. Duckworth-Morris Realty Co., 669 So.2d 946 (Ala.Civ.App.1996) (stating that the trial court had discretion to rule on a summary-judgment motion before the completion of discovery). We conclude that the trial court did not abuse its discretion in determining that no further factual development was necessary in order for it to assess whether the ordinance was facially valid and constitutional or whether Lowndesboro had asserted its counterclaim against the County within the 12-month nonclaim period.

D. Validity of the Ordinance

Lowndesboro argues that its ordinance is not inconsistent with the Solid Waste Act and that it does not violate the Alabama Constitution of 1901. Lowndesboro relies on Brooks v. City of Birmingham, 389 So.2d 578, 580 (Ala.Crim.App.1980), for the principle that an ordinance that enlarges upon the provisions of a statute creates no “conflict.” Lowndesboro argues that under § 1N47-130, Ala.Code 1975, it has the power to maintain health and cleanliness within its police jurisdiction, and that under § 11-40-10, Ala.Code 1975, Lowndesboro’s police jurisdiction extends for 1.5 miles beyond its corporate limits. Lowndesboro also argues that Ala. Admin. Code, r. § 335-13-1-.04, gives it the authority to adopt more stringent requirements than the requirements included in the Solid Waste Act.

ADS and the County argue that the ordinance is inconsistent with the Solid Waste Act, and that under § 89 of the Alabama Constitution of 1901, a municipality is prohibited from adopting any ordinance inconsistent with the laws of this State. ADS and the County also argue that under § 22-27-47(a), Ala.Code 1975, a city’s authority to regulate solid waste ends at its city limits; that the ordinance violates § 22-27-48(a), Ala.Code 1975, because it does not address six mandatory factors in determining whether to approve a landfill; that the County clearly was the “host government” under § 22-27-48(a) because it had a solid-waste plan and Lowndesboro did not; and that because Lowndesboro had not opted out of the County’s plan, it would have to consider any solid-waste-landfill proposal within its jurisdiction under the County’s plan. ADS and the County also argue that the ordinance violates the Alabama Constitution’s provisions regarding due process, contracts, and takings.

We conclude that the ordinance is inconsistent with the Solid Waste Act and that it is therefore void. A municipality, such as Lowndesboro, is expressly prohibited under Alabama law from adopting any ordinance that is inconsistent with the laws of this State. See § 89, Ala. Const 1901; § 11-45-1, Ala.Code 1975. An ordinance may be “inconsistent” with State law if it prohibits conduct permitted under State law. See, e.g., Congo v. State, 409 So.2d 475 (Ala.Crim.App.1981). In Brooks, swpra, the Court of Criminal Appeals stated:

“We think a correct determination of the particular issue is to be found in the conclusions reached by Judge DeCarlo in Atkins [v. City of Tarrant City, 369 So.2d 322 (Ala.Crim.App.1979)], wherein he soundly sets forth differences between municipal ordinances and general laws of a state that constitute inconsistency and those that do not constitute inconsistency.
“ Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the local law prohibits anything which the State law permits. Ligon v. City of Gadsden, [21 Ala.App. 312, 107 So. 733] supra. See also Kim v. Town of Orangetoum, 66 Misc.2d 364, 321 N.Y.S.2d 724.’ Atkins, supra, at 369 So.2d 325.”

389 So.2d at 580.

In Town of Eclectic v. Mays, 547 So.2d 96 (Ala.1989), the Supreme Court struck down a portion of a municipal ordinance providing that a person who did not pay garbage-service fees could be fined up to $500 and imprisoned for up to six months. In holding that that portion of the ordinance was inconsistent with the Solid Waste Disposal Act, the Supreme Court stated:

“Section 22-27-5(e) expressly addresses ‘nonpayment of fees.’ The statute provides:
“ ‘... [I]f the fees, charges, or rates for the services furnished ... shall not be paid within 30 days after the same shall become due and payable, [the] municipality may, at the expiration of such 30 day period, suspend such services or may proceed to recover the amount of any such delinquency with interest in a civil action, or both.’
“The statute does not permit either the fines or the imprisonment that Ordinance 34 would impose. A municipal corporation shall not pass any laws inconsistent with the general laws of this state. Ala. Const., Art. IV, § 89. Accordingly, the portion of Ordinance 34 that imposes fines and imprisonment for not paying the garbage service fees is inconsistent with state law, and the trial court did not err in striking that part of the ordinance.”

547 So.2d at 101-02.

Alabama’s Solid Waste Act requires that local jurisdictions implement and follow a local solid-waste-management plan in deciding where to locate a landfill. See § 22-27-47, Ala.Code 1975. Accordingly, the ordinance’s blanket prohibition of all landfills within the city limits or police jurisdiction of Lowndesboro prohibits activity that the Solid Waste Act specifically permits, and the ordinance is therefore irreconcilable with the Solid Waste Act. An ordinance that is inconsistent with State law is void. Atkins, 369 So.2d at 325.

We reject Lowndesboro’s argument that the ordinance may be a valid exercise of a municipality’s power, pursuant to §§ 11-40-10 and 11-47-130, to maintain health and cleanliness within its police jurisdiction. In a sense, any municipal ordinance relating to landfills would relate to the “health and cleanliness” protection of a city; however, we conclude that, with respect to the “siting” of landfills, §§ 22-27-47 and 22-27-48 take precedent over and preempt the general statutes, §§ 11-40-10 and 11417-130. Section 22-1-2, AIa.Code 1975, provides: “In the event that any of the provisions of Title 11 of this Code relating to municipal corporations shall be in conflict with any of the provisions of the general health and quarantine laws of the state, the provisions of such general health and quarantine laws shall prevail.” Sections 22-27-47 and 22-27-48 require that local solid-waste-management decisions must be made in accordance with a local solid-waste-management plan, and that any local ordinances that do not include a local solid-waste-management plan are void as inconsistent with State law. Under Article 3, local municipalities are not given carte blanche authority to manage solid-waste decisions, but must follow the statutory procedures set out in §§ 22-27-47 and 22-27-48. Moreover, § 22-27-47 limits a municipality’s authority to regulate solid waste to its “city limits.” The wording of both § 11-47-130 and § 11-40-10 implicitly recognizes that there is a distinction between “city limits” and “police jurisdiction.” The boundaries of a city’s authority under Article 3 are specifically stated in § 22-27-47(a), which provides, in pertinent part: “any municipality may choose to submit its own Solid Waste Management Plan intended for implementation within its city limits ...(emphasis added). To the extent there is any conflict between § 22-27-47(a) (included in Title 22) and § 11^0-10 (included in Title 11), § 22-27-47(a) of Title 22 controls. See § 22-1-2, supra. We conclude that Lowndesboro’s authority to regulate solid waste extends only to its “city limits,” and, under the express statutory language used in § 22-27-47(a), does not include its police jurisdiction.

In light of the foregoing, the judgment of the Lowndes Circuit Court is due to be affirmed. Therefore, we do not reach the remaining constitutional grounds asserted in support of the judgment of the Lowndes Circuit Court.

2000294 — APPEAL DISMISSED.

2000324 — APPEAL DISMISSED.

2000633 — AFFIRMED.

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

      . The proposed landfill site consists of approximately 647 acres. The "footprint,” which is the actual disposal area of the landfill, consists of 235 acres. The 20 acres located within the police jurisdiction of Lowndes-boro are part of the footprint.

      . ADS has not applied for a National Pollutant Discharge Elimination System ("NPDES”) permit, which is a separate permit required for the operation of a landfill.

      . In 1989, the Legislature amended the Solid Waste Act, § 22-27-1 et seq., to add Article 3 regarding solid-waste-management plans (see § 22-27-40 et seq.). This legislation was enacted in response to the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6941 et seq. ("RCRA”). The purpose of RCRA was to assist and to encourage the development of comprehensive state, local, and regional planning for solid-waste management. See 42 U.S.C. § 6941.

      . On March 1, 2002, the Montgomery Circuit Court issued a judgment holding the ADEM permit invalid because of various alleged no-lice deficiencies. That judgment is not at issue in this appeal.

      . Lowndesboro alleges numerous reasons why the resulting contract was invalid; however, Lowndesboro did not file a counterclaim against ADS. We will address the effect of that omission later in this opinion.

      . At the hearing held on December 4, 2000, counsel for ADS stated that "we concede that we can’t construct and operate a landfill without the [NPDES] permit being actually issued.” See note 2, supra, also.

      . In Fitzjarrald., 597 So.2d at 1379, this court stated:
      "The statute is clear that ‘[a] governing body may ... approve [or disapprove] disposal sites in its jurisdiction in accord with the plan approved for its jurisdiction.' § 22-27-48(a). The statute is also clear that the local approval is ‘in addition to any other approvals required from other regulatory authorities and shall be made prior to any other approvals necessary.' § 22-27-48(a) (emphasis added [in Fitzjarrald]). Moreover, ADEM may not even consider a permit application unless it has already been approved by the local government unit. § 22-27-48(a).”

      . Section 11-12-8, the statute of nonclaims, provides, in pertinent part: "All claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred

      . We also note that counsel for Lowndesboro stated at the hearing on the summary-judgment motions that its “claim " was more in the nature of an "affirmative defense.”

      .ADS and the County argue that Lowndes-boro did not raise this issue at the circuit-court level and cannot raise it for the first time on appeal. See Hargrove v. Cantrell, 547 So.2d 488 (Ala.1989); Conley v. Beaver, 437 So.2d 1267 (Ala.1983); White v. Riley Constr., Inc., 745 So.2d 877 (Ala.Civ.App.1999). However, in Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994), the Supreme Court held that a party can raise different reasons and arguments on appeal supporting an issue raised at the trial court level, and Lowndesboro's "relation back” contention appears to be in the nature of such permissible "different reasons and arguments.”

      . Section 11-47-23, the nonclaim statute for municipalities, provides, in pertinent part: “All claims against the municipality ... shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”

      . We note that at the time City of Prichard was decided, Browning had not been overruled.

      . Ala. Admin. Code, r. 335-13-1-.04, provides, in pertinent part, that “[njothing in these rules and regulations shall be construed to limit the authority of municipal and county governments, solid waste authorities, ... from adopting more stringent solid waste management requirements than those set forth in this Division.”

      . Section 11-47-130 provides that a municipality has "the power to maintain the health and cleanliness of the city ... within its limits and within the police jurisdiction thereof,” and § 11-40-10 provides that a municipal ordinance "enforcing police or sanitary regulations and prescribing fines and penalties for violations thereof shall have force and effect in the limits of the city or town and in the police jurisdiction thereof .... ”


author: PER CURIAM. PITTMAN, Judge, THOMPSON, Judge,

text:
    Tina WEST v. BRUNO’S, INC.
    2000485.
    Court of Civil Appeals of Alabama.
    June 7, 2002.

      Charles H. Boohaker of Roger D. Burton, P.C., Birmingham, for appellant.
    Ralph D. Gaines III and Kenneth P. Flood of Gaines, Wolter & Kinney, P.C., Birmingham, for appellee.
   On Application for Rehearing

PER CURIAM.

This court’s no-opinion order of affir-mance of December 28, 2001, is withdrawn, and the following opinion is substituted therefor.

Tina West appeals a summary judgment entered for Bruno’s, Inc., on her claims alleging malicious prosecution, abuse of process, false imprisonment, invasion of privacy, and the tort of outrage. On August 20, 1999, West negotiated to Food World a check, number 1192, from her Regions Bank account written in the amount of $150. Food World is owned and operated by Bruno’s Supermarkets, Inc., formerly known as Bruno’s, Inc. (hereinafter “Bruno’s”). The bank returned West’s check, stamped “insufficient funds” to Bruno’s. Bruno’s then sent notice to West by certified mail that her check had been returned. The language in the notice is identical to the language set forth in § 13A-9-13.2, Ala.Code 1975. West received this notice on September 13, 1999.

Upon receipt of the notice, West contacted the store manager to tell her that the returned check had been paid by Regions Bank. West took bank records and her account statement to the store to verify the bank’s payment on August 24, 1999, of check number 1192. West stated that she assumed the store and her bank would handle the situation. On November 19, 1999, Bruno’s issued a warrant for West’s arrest, asserting that it never received payment and that it was holding a worthless negotiable instrument. West was arrested, but the charges were nol-prossed on March 28, 2000, upon recommendation of the prosecuting attorney.

On September 7, 2000, West sued Bruno’s, alleging malicious prosecution, abuse of process, false imprisonment, invasion of privacy, and the tort of outrage. Bruno’s filed a motion to dismiss on November 8, 2000. On December 5, 2000, West filed her objection to the motion to dismiss. The trial court conducted a hearing on Bruno’s motion to dismiss on December 7, 2000; at the conclusion of the hearing, the trial court denied the motion. On December 11, 2000, West filed interrogatories and a request for production of documents that, among other items, sought Bruno’s bank records. On December 13, 2000, Bruno’s filed both an answer to West’s complaint and a motion for a summary judgment.

West filed her brief in opposition to Bruno’s summary-judgment motion on January 4, 2001. In her brief, West argued that she needed Bruno’s bank records in order to determine whether Bruno’s claim that it had not been paid the amount of check number 1192 was valid. Because discovery was not complete, West argued further that summary judgment was inappropriate at that time. The trial court conducted a hearing on the motion and, at the conclusion of the hearing, granted Bruno’s summary-judgment motion. West filed a timely appeal to the Alabama Supreme Court, which transferred her case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

This court’s review of a summary judgment is de novo. See Dudley v. Bass Anglers Sportsman Soc., 777 So.2d 135, 137 (Ala.Civ.App.2000). We apply the same standard applied in the trial court. Rule 56, Ala. R. Civ. P., establishes a two-part standard for entering a summary judgment. The trial court must determine that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Rule 56(c)(3), Ala. R. Civ. P.; Gordon v. West Weaver Baptist Church, 777 So.2d 734, 736 (Ala.Civ.App.2000).

Furthermore, to defeat a properly supported motion for a summary judgment, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact. See § 12-21-12, Ala. Code 1975; Cantrell v. North River Homes, Inc., 628 So.2d 551, 553 (Ala.1993). “[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.” See West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a properly supported summary-judgment motion, a court must view the evidence in the light most favorable to the nonmoving party. See Goodwin v. City of Fultondale, 706 So.2d 766, 767 (Ala.Civ.App.1997).

The Alabama Worthless Check Act is codified at § 13A-9-13.1 et seq., Ala.Code 1975. Bruno’s relies on the following provision stating that “[a]ny party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in [§ 13A-9-13.2(2) ] shall be immune from civil or criminal liability for the giving of the notice and for proceeding under the forms of the notice.” § 13A-9-13.2(3), Ala.Code 1975. To support its motion for a summary judgment, Bruno’s submitted a photocopy of the returned check, a photocopy of the notice sent to West, and an affidavit from Wendy Galen. The affidavit stated in part:

“3. Tina West signed a check, returned unpaid on 8/20/99.
“4. Attached is a true and accurate copy of the notice sent to Tina West as a result of that unpaid check.”

West responded to Bruno’s motion for a summary judgment with her own affidavit. That affidavit stated that as soon as she received the notice from Bruno’s, West took her bank statement to the store manager to prove that the check had in fact been paid. Previously, West had submitted to the trial court photocopies of her bank statement and a computer printout from the bank showing payment of check number 1192 on August 24, 1999. Although Bruno’s objected to the original submission of those records as unverified, West can rely on her own monthly bank statement as an accurate representation of the status of her bank account.

Bruno’s motion to strike West’s affidavit states that West’s bank statement was inadmissible hearsay because it was “not supported by the testimony of any bank officer verifying its authenticity.” That appears to be an objection based on lack of authentication rather than on hearsay, and might have been valid if the bank statement were being introduced as a record of the bank. However, West submitted the statement as her own record, upon which she relied. See State v. Cremer, 234 Kan. 594, 676 P.2d 59 (1984).

“It cannot be denied that the entries contained in bank statements are generated by the owner of the account. Bank statements are relied on every day in the business world to verify the account owner’s financial transactions. We have no hesitancy in holding that bank statements made in the regular course of business and presented to the owner of the account as a record of account transactions are a trustworthy source of information and may be admitted ... as a part of the financial records of the owner of the account.”

234 Kan. at 602, 676 P.2d at 64 (emphasis added). Moreover, even if we construe the objection by Bruno’s as one based on hearsay, we conclude that West’s affidavit was admissible. If bank statements reflecting insufficient funds are admissible to show “guilty knowledge” or “intent to defraud” in bad-check cases, see, e.g., Ledford v. State, 184 Ga.App. 556, 362 S.E.2d 133 (1987); Reynolds v. State, 172 Ga.App. 628, 323 S.E.2d 912 (1984); State v. Ricard, 535 So.2d 21 (La.App.1988); State v. Carroll, 41 S.W.3d 878 (Mo.2001); State v. Ben-Neth, 34 Wash.App. 600, 663 P.2d 156 (1983), then bank statements reflecting sufficient funds are admissible to show lack of guilty knowledge or the absence of an intent to defraud. The bank records were used only in conjunction with West’s sworn statement that she believed the check was good and that it was not a worthless negotiable instrument under Alabama statutory law.

Section 13A-9-13.1, Ala.Code 1975, states in pertinent part:

“(a) A person commits the crime of negotiating a worthless negotiable instrument if the person negotiates or delivers a negotiable instrument for a thing of value and with the intent, knowledge, or expectation that it will not be honored by the drawee.
“(b) For the purposes of this section, it is prima facie evidence that the maker or drawer intended, knew, or expected that the instrument would not be honored in any of the following instances:
“(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge ..., within 10 days after receiving written notice from the holder of the instrument that payment was refused upon the instrument....”

When West presented her bank statement to Bruno’s, it showed that her bank had paid the check and had debited her account for that amount, leaving a remaining balance. Unless disputed, this proved that she had no intent, knowledge, or expectation that the check would not be honored by the bank.

Section 13A-9-13.1(a) clearly requires the prosecution to prove specific intent to defraud. See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975). A maker or drawer “is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section [13A-9-13.1(b) ] of the Worthless Check Act.” Tolbert, 294 Ala. at 743, 321 So.2d at 232.

“The difference between the improper use of a statute as a means of punishment for debt and the proper use of a statute as a means of punishment for a criminal act is intent. Harris v. State, 378 So.2d 257 (Ala.Cr.App.), cert. denied, 378 So.2d 263 (Ala.1979). A mere failure or inability to pay a debt does not necessarily constitute theft. Theft requires the specific intention to deprive which cannot be inferred from the mere naked fact of non-payment of a debt. Thus, the theft statute was designed to punish those who exert unauthorized control over the property of another with the intent to deprive that person of his property and not to punish persons who are unable to pay a debt.
“The central and critical issue in this case is this appellant’s intent.”

Bullen v. State, 518 So.2d 227, 233-34 (Ala.Crim.App.1987).

Without a specific intent to defraud, there was no probable cause to support the issuance of an arrest warrant. Bruno’s remedy, if any, was civil, not criminal. “It is axiomatic that a charge of malicious prosecution must be supported by proof of a lack of probable cause and malice.” Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 48 (Ala.1982). “Probable cause in malicious prosecution cases is that state of facts which would lead a person of reasonable prudence to honestly believe that the claims put forth in the prior suit would prevail.” Allen v. Molton, Allen & Williams Realty Co., 495 So.2d 27, 30 (Ala.1986).

A discussion of the causes of action other than malicious prosecution is unnecessary. See Cutts v. American United Life Ins. Co., 505 So.2d 1211 (Ala.1987). Because West’s affidavit creates a question of fact as to whether Bruno’s was holding a “worthless negotiable instrument” and was therefore immune from liability pursuant to § 13A-9-13.2(3), summary judgment was erroneously granted. We reverse the trial court’s summary judgment and remand the cause for further proceedings consistent with this opinion.

APPLICATION GRANTED; NO-OPINION ORDER OF AFFIRMANCE OF DECEMBER 28, 2001, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

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

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

THOMPSON, J., dissents.

PITTMAN, Judge,

concurring in the result.

I concur with the main opinion insofar as the court reverses the summary judgment. However, based upon the following argument, I believe further discovery is necessary before the trial court may entertain a motion for a summary judgment or may set a date for trial. The competing affidavits offered by Bruno’s and West raise a genuine issue of material fact: whether check number 1192 stamped “insufficient funds” and returned to Bruno’s, was in fact paid on August 24, 1999. If these funds were not paid, then Bruno’s is entitled to immunity under § 13A-9-13.2, Ala.Code 1975. If the funds were paid to the wrong account, then West or Bruno’s may have an action against the bank. Because the trial court granted Bruno’s summary-judgment motion before discovery was complete, this crucial fact is unrevealed.

Our supreme court has consistently stated that it is error for a trial court to enter a summary judgment before the party moving for the summary judgment has produced answers to interrogatories and any documents requested. See Parr v. Goodyear Tire & Rubber Co., 641 So.2d 769 (Ala.1994); Tyler v. City of Enterprise, 521 So.2d 951 (Ala.1988). The mere pen-dency of discovery does not bar a summary judgment; but the “burden is upon the non-moving party to comply with Rule 56(f) or to prove that the matter sought by discovery is or may be crucial to the non-moving party’s case.” Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988). Although West did not file a Rule 56(f) affidavit, she argued the need to complete discovery in her opposition to Bruno’s motion for a summary judgment.

Before the trial court and on appeal, Bruno’s relied exclusively on the statutory interpretation of § 13A-9-13.2(3), as promulgated in Johnson v. Wal-Mart Stores, Inc., 769 So.2d 929 (Ala.Civ.App.2000). In Johnson this court held that the statute immunizes one whose conduct otherwise might constitute malicious prosecution. However, our supreme court recently overruled Johnson. See Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala.2001). In Patterson, our supreme court found Johnson to be inapplicable where there is no evidence before the court that the holder of the instrument has complied with the other provisions of the Worthless Check Act. In order to use the immunity provisions, Bruno’s has a burden under Patterson to show the trial court that it has complied with all provisions of the statute.

If the appellate court can ascertain from the record that the matter subject to production, or the answers to the pending interrogatories, are crucial to the nonmov-ing party’s case, “then it is error for the trial court to grant summary judgment before the items have been produced or the answers given.” Reeves v. Porter, 521 So.2d at 965 (Ala.1988); Williams v. Williams, 617 So.2d 1032, 1035-36 (Ala.1992). It is clear from our review of the record that Bruno’s bank records are needed to verify whether payment was indeed made. Production of these documents could resolve whether any genuine issue remains to be litigated by the parties. Therefore, I would reverse the summary judgment and remand the case to the trial court for the completion of discovery before any further proceedings.

THOMPSON, Judge,

dissenting.

I disagree with the main opinion’s reversal of the summary judgment. I believe that Bruno’s has demonstrated that it is entitled to immunity under § 13A-9-13.2, Ala.Code 1975, and that West failed to present sufficient evidence to defeat Bruno’s properly supported motion for a summary judgment. The main opinion’s holding creates a duty on the part of a business or other party holding a worthless negotiable instrument to investigate whether it is entitled to immunity under § 13A-9-13.2, and it places on that party the burden of establishing the elements of the crime of negotiating a worthless negotiable instrument. See § 13A-9-13.1, Ala. Code 1975.

Section 13A-9-13.2(3), Ala.Code 1975, provides that a party who (1) holds a worthless check and (2) notifies the writer of that check in compliance with the requirements of § 13A-9-13.2(2), “shall be immune from civil or criminal liability” with regard to its proceeding under the Worthless Check Act to prosecute the writer of the worthless check. (Emphasis added.) I believe that the sole question presented to this court for resolution is whether Bruno’s complied with the provisions of the Worthless Check Act and is, therefore, entitled to immunity under § 13A-9-13.2, Ala.Code 1975.

West does not dispute that she issued a check that was returned to Bruno’s marked “insufficient funds.” West does not dispute that Bruno’s properly notified her, in compliance with the requirements of § 13A-9-13.2(2), Ala.Code 1975, of the fact that her check had been returned for insufficient funds. Because the two elements that entitle Bruno’s to immunity under § 13A-9-13.2(3) are not contested by the parties, I conclude that the summary judgment should be affirmed, and that this court should go no further in its analysis. However, I feel it necessary to address the main opinion.

In arguing that Bruno’s was not entitled to immunity under § 13A-9-13.2(3), West contends only that, with regard to her check, Bruno’s was not “holding a worthless negotiable instrument,” and that Bruno’s, rather than West, had a duty to investigate whether West or her bank had made a mistake. I conclude that this court, in agreeing with West’s argument, has imposed a duty on the party holding a check returned for insufficient funds — a duty our Legislature, in enacting the Worthless Check Act, did not impose. The main opinion concludes that Bruno’s was required to prove that West had a “specific intent to defraud,” see 837 So.2d at 307, and that Bruno’s did not meet its burden of proof by presenting evidence regarding West’s intent. In support of that conclusion, the main opinion cites two cases in which the appellate courts discussed the elements the State must ultimately prove in prosecuting a person charged with the crime of negotiating a worthless instrument. See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975), and Bullen v. State, 518 So.2d 227 (Ala.Crim.App.1987). In relying on these cases, the main opinion improperly imposes on a party who holds a worthless negotiable instrument and who complies with § 13A-9-13.2 the same burden the State bears in a criminal trial to prove the element of intent. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala.1992) (“Because subjective intent ... is often difficult to ascertain, it stands to reason that the person in the best position to assess the merits of a criminal prosecution under [the Worthless Check Act] is the district attorney.”).

Even assuming that a holder of a worthless negotiable instrument must address the issue of the maker’s intent, the Worthless Check Act, rather than requiring that the holder of a worthless negotiable instrument demonstrate that it had probable cause to believe the issuer of the check intended to defraud the payee of the check, sets forth the situations in which there is prima facie evidence of intent to negotiate a worthless instrument:

“[I]t is prima facie evidence that the maker or drawer intended, knew, or expected that the instrument would not be honored in the any of the following instances:
“(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of not more than (fill in appropriate amount as provided by law), within 10 days after receiving written notice from the holder of the instrument that payment was refused upon the instrument, as provided in Section 13A-9-13.2.”

§ 13A-9-13.1(b), Ala.Code 1975 (emphasis added).

In support of its motion for a summary judgment, Bruno’s submitted evidence indicating that West’s check had been returned to it for insufficient funds, and that, pursuant to § 13A-9-13.2, Ala.Code 1975, it properly notified West of the insufficiency and requested payment. In opposition to Bruno’s summary-judgment motion, West presented her affidavit stating that, even assuming it was admissible, demonstrates only that West’s bank removed funds representing the amount of the check from her bank account, i.e., that it paid the check. West’s affidavit states that “[the] check was presented to my bank and was paid and withdrawn from my account,” and that West contacted a Bruno’s manager and informed the manager that “the check had cleared my bank and that it was in fact not a bad or bounced check.” However, West has not presented any evidence indicating that Bruno’s was the party who presented her check to her bank and received payment. West has presented no evidence indicating that Bruno’s was properly paid, and she has not at any time contended that she told the Bruno’s manager that Bruno’s had received the proceeds of her check.

More significantly, West has not demonstrated that she herself complied with the Worthless Check Act after Bruno’s notified her that her check had been returned for insufficient funds. West did not present evidence indicating that she paid the amount of the check, plus any applicable service charge, to Bruno’s, when she was notified that her bank had returned the check to Bruno’s. See § 13A-9-13.1(b)(2), Ala.Code 1975. See also Steeley v. City of Gadsden, 533 So.2d 671, 677 (Ala.Crim.App.1988) (“the refusal of the drawee to honor the check because of ‘insufficient funds’ and the failure of the appellant to pay the amount of the check ... within ten days after proper notice are prima facie evidence that the appellant intended, knew or expected that [her] check would not be honored”). The clear terms of § 13A-9-13.1(b)(2) dictate the actions required of the maker of the check, but nothing in the Worthless Check Act requires any duty on the part of the holder of a worthless negotiable instrument to investigate the circumstances leading to the instrument’s being returned to it for insufficient funds. Given the foregoing, I do not believe that West presented sufficient evidence to defeat the prima facie evidence of intent by demonstrating that as the “maker or drawer” of the instrument, she “paid the holder thereof the amount due thereon.” § 13A-9-13.1(b)(2), Ala.Code 1975. Further, although West’s bank statement, upon which she apparently bases her affidavit, indicates that the check did clear her bank, there is no evidence in the record regarding to whom the funds from that check were transferred. The funds might have been properly transferred to Bruno’s, or they might have been directed to the wrong account; such information was readily available to West upon a mere inquiry to her bank. It is speculation to conclude that the bank properly paid Bruno’s rather than some other party, or that West demonstrated to the Bruno’s manager that Bruno’s did receive payment for her check. It is well settled that speculation that a fact exists will not defeat a properly supported motion for a summary judgment. Ex parte Wal-Mart Stores, Inc., 806 So.2d 1247 (Ala.2001); Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996). Therefore, I conclude that West failed to meet her burden of presenting substantial evidence to defeat Bruno’s properly supported motion for a summary judgment.

West has argued on appeal and on application for rehearing that the trial court erred in entering a summary judgment before the parties completed discovery. “The mere pendency of discovery does not bar summary judgment.” Hope v. Brannan, 557 So.2d 1208, 1212 (Ala.1989). If a party opposing a motion for a summary judgment cannot properly respond to that summary-judgment motion because necessary discovery is still pending, that party must file an affidavit in the trial court stating that the requested discovery is crucial and stating the reason the party cannot respond to the summary-judgment motion without that discovery. Rule 56(f), Ala. R. Civ. P.; Stallworth v. AmSouth Bank of Alabama, 709 So.2d 458 (Ala.1997); McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156 (Ala.1996); Hope v. Brannan, supra; Reeves v. Porter, 521 So.2d 963 (Ala.1988); Dorsey v. Bowers, 709 So.2d 51 (Ala.Civ.App.1998). “Such an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence.” Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f), Rule 56, Ala. R. Civ. P.

In McCullar v. Universal Underwriters Life Ins. Co., supra, the party opposing a motion for a summary judgment (“the non-movant”) moved the trial court for a continuance, but the trial court denied her request. The nonmovant stated only that she needed certain documents in order to depose certain witnesses. The supreme court found that the nonmovant did not specifically state to the trial court, or argue to the supreme court, the reason “why the discovery was significant to her effort to rebut the summary judgment motion.” McCullar, 687 So.2d at 161. Therefore, the supreme court, noting that Rule 56(f) places the burden on the nonmovant to show why the discovery was crucial, held that the trial court did not abuse its discretion in refusing to continue its consideration of the motion for a summary judgment. McCullar, 687 So.2d at 161-62.

In this case, in her response to Bruno’s motion for a summary judgment, West did not file a Rule 56(f) affidavit. West argued only that “to allow a summary judgment prior to even rudimentary discovery being completed would be unjust and prejudice [her].” Even assuming that such an argument is sufficient, in so arguing, West did not specify what pending discovery was necessary for her to respond to the motion for a summary judgment, why that discovery information was crucial to her ability to properly respond to that motion, or why she could obtain that information only through discovery. West’s argument on appeal as to this issue was virtually identical to the argument she made before the trial court. In her brief on application for rehearing, West, for the first time, makes a specific argument regarding the discovery she contends was necessary to her ability to respond to the motion for a summary judgment. It is well-settled that an issue may not be raised for the first time on application for rehearing, Millar v. Wayne’s Pest Control, 804 So.2d 213 (Ala.Civ.App.2001), and it follows that an issue, although raised, may not be properly argued for the first time on application for rehearing.

I believe that the burden was on West, the issuer of the check, to ensure payment to the merchant, see § 13A-9-13.2, Ala. Code 1975, and that this court’s reversal of the summary judgment places the burden on Bruno’s, the merchant and the holder of the worthless negotiable instrument, to defend a claim supported only by conclusory allegations and speculation. Therefore, I dissent from the reversal of the summary judgment entered in favor of Bruno’s.

      . I would note that the Judge Pittman's concurring opinion would also reverse for Bruno's to ''comply'' with the holding in Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1 (Ala.2001). In that case, our supreme court addressed one issue — whether a holder of a worthless negotiable instrument must prove that it complied with the identification requirements of § 13A-9-13.3, Ala.Code 1975, in establishing a prima facie case that it was entitled to immunity under § 13A-9-13.2(3), Ala.Code 1975. The court held that "compliance with the identity provisions of § 13A-9-13.3, on which prima facie evidence of identity depends, is part and parcel of the grant of immunity [under § 13A-9-13.2(3) ]," Wal-Mart Stores, Inc. v. Patterson, 816 So.2d at 7. West has not contended that Bruno's failed to comply with the requirements of the Worthless Check Act, including § 13A-9-13.3. Even so, the record contains a copy of the face of West’s check, and the face of that check contains all of the information required by § 13A-9-13.3.1 believe that the record clearly indicates that Bruno’s demonstrated that it has complied with all of the requirements of the Worthless Check Act. See § 13A-9-13.1 through -13.3, Ala.Code 1975. Therefore, I cannot agree that the judgment should be reversed and the case remanded to the trial court on that basis.

      . West’s affidavit contains some statements constituting hearsay and unauthenticated copies of her bank statement. For the purposes of this writing, I will assume that the courts may properly consider all parts of West’s submissions in opposition to Bruno's motion for a summary judgment. See Chatham v. CSX Transp., Inc., 613 So.2d 341 (Ala. 1993) (the nonmovant may oppose a motion for a summary judgment only with admissible evidence).


author: PITTMAN, Judge.

text:
    D.H. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010351.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    William J. Miller of Fite, Field & Miller, L.L.C., Anniston, for appellant.
    Bill Pryor, atty. gen.; J. Coleman Campbell, deputy atty. gen., and John D. Harrison and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for ap-pellee.
   PITTMAN, Judge.

The Calhoun County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of D.H. (“the mother”) as to her five children; M.A.H. is the father of one of the children, M.A.H., Jr., but is not the father of the other children. DHR filed a petition to terminate his parental rights as to M.A.H., Jr. Following a one-day hearing, the trial court terminated the mother’s parental rights as to all five children. The trial court also terminated the parental rights of M.A.H. as to M.A.H., Jr.; the older four children have never been legitimated.

Only the mother appeals; she argues (1) that there is not clear and convincing evidence to support the trial court’s finding that the children are dependent and (2) that the trial court did not properly evaluate viable alternatives to termination of her parental rights before rejecting those alternatives.

A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the child is dependent and that there are no viable alternatives to terminating the parents’ parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990).

Section 26-18-7(a) states in relevant part:

“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 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 the child is not in the custody of the 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.”

We first conclude that the record contains clear and convincing evidence that the children are dependent. DHR began its involvement with the family in May 2000 after the mother, the father, and the five children along with another family of four had been involved in a car accident. The driver and the 10 passengers were in a two-door car. The four adults were legally intoxicated, and the seven children were not wearing seat restraints; the driver of the other car was killed. Two of the mother’s children were hospitalized and made a full recovery. The five children were then taken into protective custody.

DHR established several individualized service plans (“ISPs”) for the mother and M.A.H. The fundamental concern of DHR was for the family to obtain stable housing and for the parents to maintain steady employment. The ISPs also required the parents to remain drug-free, to develop parenting skills, and to end the domestic violence in the home. Two of the female children revealed to various counselors and DHR case workers that M.A.H. and his brother (“the uncle”) had sexually abused them. One counselor testified that the older female child (approximately 9 years old at the time of trial) explicitly described the variety of sexual contact she was forced to undergo. This child also told the counselor that the mother witnessed one of those episodes and did nothing to stop M.A.H.

A clinical psychologist who examined the mother testified that the mother is mildly mentally retarded. The mother is inclined to rely on and to defer to the judgment of people she views as more powerful than she is; specifically, M.A.H. The male children testified that M.A.H. hit them and that M.A.H. had taken the female children into his bedroom and put a shoe under the door to prevent anyone from entering the room. The children also reported that the mother and M.A.H. had had sexual relations in their presence.

The DHR case worker first assigned to this case testified that the mother has had three different jobs and her longest period of employment was one month. The children had been in protective custody at Seraaj Family Homes. A counselor at Se-raaj described the mother’s supervised visitation as chaotic. She testified that the mother was unable or unwilling to control the children’s behavior and unable to deal with more than one child at a time. She testified that the mother would not discipline the children.

We next conclude that the trial court properly considered viable alternatives to a termination of the mother’s parental rights and then rejected those alternatives. The mother gave DHR the name of her mother (“the maternal grandmother”) and the name of a cousin as placement alternatives. The DHR case worker testified that placement with the maternal grandmother was not a viable alternative because the Cleburne County DHR had filed “indicated” child abuse and neglect complaints against the maternal grandmother as to these children. The DHR case worker testified that the cousin was tentative in his willingness to take the children. She further testified that she requested that he attend the termination trial, but he failed to appear at trial. DHR also rejected placement with M.A.H.’s father (“the paternal grandfather”) as a viable alternative because M.A.H. and the uncle accused by the female children as a perpetrator of sexual abuse both live with him.

Because clear and convincing evidence supports a finding that the children are dependent and because there are no viable alternatives to a termination of the mother’s parental rights, we affirm the trial court’s judgment terminating the mother’s parental rights.

AFFIRMED.

CRAWLEY and THOMPSON, JJ., concur.

YATES, P.J., concurs in the result.


text:
    In the Matter of N.D.M.
    2010381.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    Bill Pryor, atty. gen.; and Courtney W. Tarver, deputy atty. gen. and general counsel, and Tamara R. Pharrams, asst. atty. gen., Alabama Department of Mental Health & Mental Retardation.
    Derek E. Yarbrough of Motley, Motley & Yarbrough, Dothan, for N.D.M.
   PITTMAN, Judge.

The Department of Mental Health and Mental Retardation (“the Department”) appeals an order directing it to pay the costs of housing N.D.M., a juvenile, in the Southeast Alabama Diversion Center, until space became available for N.D.M. at the Department’s facilities at Bryce Hospital.

Following a series of violent acts by N.D.M., the guardian ad litem for N.D.M. petitioned the Houston County juvenile court to commit N.D.M. to the Department for treatment. After holding a probable-cause hearing on September 21, 2001, the court committed N.D.M. to the Department for further evaluation and treatment. Pursuant to § 12 — 15—90(d)(3), Ala.Code 1975, the Department cannot accept anyone “if the [Department’s] facility does not have adequate facilities available or if acceptance would result in an overcrowded condition.” The Department notified the court that its facility at Bryce Hospital was full at that time and that it would be six weeks before it could accept N.D.M. at that facility.

Subsequently, on October 12, 2001, the juvenile court held another hearing at which it heard additional arguments and testimony from all parties; it concluded that N.D.M. posed a real threat of harm to himself and the community. The juvenile court issued an order that day concluding that involuntary commitment to the Department for treatment of ND.M.’s mental illness was the least restrictive alternative and that, until there was space available at Bryce Hospital, confinement in the Southeast Alabama Diversion Center was necessary to prevent the minor from causing substantial harm to himself or to others. The juvenile court’s order reiterated its September finding that N.D.M. be involuntarily committed to the Department for treatment, while also acknowledging that there was a five-week waiting period for placement into Bryce Hospital.

On November 15, 2001, upon motion by the guardian ad litem, the juvenile court held a show-cause hearing to determine why N.D.M. had not yet been admitted to Bryce Hospital. In its response to the motion and at the show-cause hearing, the Department stated that the adolescent unit at Bryce Hospital was full; that N.D.M. had been moved to the third position on the waiting list; and that the Department was doing everything possible to move N.D.M. into the Bryce facility. At the conclusion of the hearing, the juvenile court ordered the Department to pay the costs of maintaining N.D.M. at the diversion center. On November 19, 2001, the circuit court dismissed the Department’s appeal from the juvenile court’s order assessing the costs of maintaining N.D.M. at the diversion center against the Department. The Department then filed this appeal.

The Department raises a single issue on appeal: whether the juvenile court erred by ordering the Department to pay the county for the cost of N.D.M.’s care in the diversion center pending his admission to the Department’s adolescent unit at Bryce Hospital. We note initially that a writ of mandamus is the proper method by which to seek to vacate an order a trial court had no authority to enter. See Alabama Dep’t of Mental Health & Mental Retardation v. State, 718 So.2d 74, 75 (Ala.Civ.App.1998); Ex parte Dep’t of Human Res., 620 So.2d 619 (Ala.1993). However, mandamus is an extraor dinary writ that will not issue if there is an adequate remedy at law. See In re D.M., 738 So.2d 898 (Ala.Civ.App.1999). In In re D.M., this court accepted a direct appeal from an order of the juvenile court, because an appeal was an adequate remedy at law for the alleged error. In re D.M., 738 So.2d at 902.

In the case before us, the Department appealed the juvenile court’s order to the circuit court. After the circuit court dismissed the appeal, the Department appealed to this court. Thus, the issue has been properly preserved for appellate review.

Section 12 — 15—71(c)(4), Ala.Code 1975, authorizes a juvenile court to make any “order as the court in its discretion shall deem to be for the welfare and best interests of the child.” Section 12-15-70, Ala. Code 1975, provides that a court may order a child to undergo a physical or mental examination, the results of which shall be certified to the court. If a court has reason to believe that a minor is mentally ill or mentally retarded, the court shall proceed with a petition for commitment as set out in § 12-15-90. Section 12-15-70 also provides that if a minor needs medical care or needs placement in a hospital or institution for treatment, “[t]he expense of such treatment shall be a valid charge against the county unless otherwise provided for.”

“The phrase, ‘unless otherwise provided for’ is clarified by § 12-15-10, Ala.Code 1975, which provides:
“ ‘All expenses necessary or appropriate to the carrying out of the purposes and intent of this chapter and all expenses of maintenance and care of children that may be incurred by order of the court in carrying out the provisions and intent of this chapter, except costs paid by parents, guardians or trustees, [and] court costs as provided by law ... shall be valid charges and 'preferred claims against the county and shall be paid by the county treasurer when itemized and sworn to by the creditor or other persons knowing the facts in the case and approved by the court.’
“(Emphasis added.) See generally, In re McCain, 348 So.2d 780 (Ala.1977).”

In re D.M., 738 So.2d at 901.

Thus, § 12-15-10, Ala.Code 1975, requires the county to pay for the care and treatment of indigent juveniles. Furthermore, our supreme court has held that the Department must accept minors alleged to be mentally ill and must provide treatment through its programs and facilities. Ex parte Dep’t of Mental Health, 511 So.2d 181, 183 (Ala.1987). Neither § 12-15-71(e)(4) nor § 12-15-70 authorizes a juvenile court to require a state department, as opposed to a county, to pay for the care and treatment of an indigent minor. See Ex parte Dep’t of Human Res., 620 So.2d at 620. Nor can a juvenile court order a state department to spend its funds to pay for a minor’s placement in a private facility. See Ex parte Dep’t of Mental Health, 511 So.2d at 183.

Although the Department attempts to distinguish the cases cited above by stating that they did not involve the involuntary commitment of a child found to be mentally ill, we find this distinction unpersuasive. In a recent decision based on similar facts, Judge Thompson wrote, in conclusion, “[t]he juvenile court had no authority to direct the expenditure of state funds to reimburse the county for the care and maintenance of a juvenile committed to the custody of the Department, during the period before the Department had facilities available to accept the juvenile for treatment.” Alabama Dep’t of Mental Health & Mental Retardation v. State, 718 So.2d at 76. In this case, N.D.M. was committed to the Department for evaluation and treatment and was detained in the diversion center until the Department could provide the mental-health services ordered by the juvenile court. We can find no legal difference between this case and Alabama Dep’t of Mental Health & Mental Retardation v. State.

Therefore, we reverse the juvenile court’s order and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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