author: LYONS, Justice. BROWN, Justice

text:
    Ex parte Earnestine FLETCHER. (In re Earnestine Fletcher v. State).
    1990055.
    Supreme Court of Alabama.
    March 30, 2001.

      R. Scott Anderson, Decatur, for petitioner.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent.
   LYONS, Justice.

Earnestine Fletcher was charged with the theft of over $200,000 from the City of Decatur (“the City”), for which she had been formerly employed as a clerk. She pleaded guilty to theft of property in the first degree, a violation of § 13A-8-3(a), Ala.Code 1975. The trial court sentenced Fletcher to 15 years in the penitentiary; it split the sentence, ordering her to serve 48 hours in the county jail, followed by 15 years on probation. In addition, the court ordered her to pay court costs, to pay $50 to the Victims Compensation Fund, and to pay $200,000 in restitution to the City. The court ordered Fletcher to pay the $200,000, plus 12% interest, amortized over 15 years, resulting in a total of $432,061 to be repaid by Fletcher in monthly payments of $2,400.34.

Fletcher moved the trial court to reconsider its restitution order. She argued that under the terms of her plea bargain, she had agreed to pay a total of $200,000 in restitution in monthly payments of $1,112 for 15 years; that she should be required to compensate the City only for the amount of its actual loss; and that the restitution ordered should be based on her ability to pay. The trial court denied Fletcher’s motion. She appealed from the restitution order.

The Court of Criminal Appeals, on August 20, 1999, affirmed the restitution order, without an opinion. Fletcher v. State (No. CR-97-1059), 778 So.2d 869 (Ala.Crim.App.1999) (table). We granted cer-tiorari review to determine whether the Court of Criminal Appeals erred in holding that the trial court had properly ordered Fletcher to pay 12% interest on the $200,000 in restitution. We affirm the judgment of the Court of Criminal Appeals in part, reverse it in part, and remand.

I.

Before Fletcher pleaded guilty, she and her attorney had negotiated with the State what is known as a “blind” plea agreement. In essence, Fletcher and the State agreed that she would pay $200,000 in restitution over a period of 15 years, and the State agreed that it would make no recommendation as to her sentence. Her attorney provided the trial court with a document entitled “Restitution Payment Plan for Earnestine Fletcher”; that document showed monthly payments of $1,112 that Fletcher proposed to make from March 1998 through January 2013, plus one final payment in February 2013 of $952, for a total of $200,000. At the hearing on her plea agreement and sentencing, the trial court and the attorneys discussed the plea agreement:

“THE COURT: All right. In this case I understand it’s actually a blind plea. There is no recommendation to be made by the State, is that the position of the State; although, you are aware of a proposal being made to the Court and the Court has given its approval to?
“[PROSECUTOR]: As I understand it, Judge, she is putting herself at the mercy of the Court. We do have an agreement as to the amount of restitution. Whatever the sentence may be, we have an agreement that will be set at $200,000.00.
“[DEFENSE COUNSEL]: That’s our agreement, Judge.”

Fletcher and her attorney signed an “Explanation of Rights and Plea of Guilty” form, commonly known as an Ireland form, in which she agreed to plead guilty to first-degree theft of property, a Class B felony. In signing that form, Fletcher acknowledged that she was aware of her rights and agreed to waive them.

Fletcher testified that she had worked for the City as a clerk at the Decatur City Hall until January 1997 and that one of her job duties had been to receive money that was paid to the City for various reasons. She further testified that during the last several years of her employment with the City, she took an amount of money in excess of $1,000 that she had received on behalf of the City and that she used that money for her own benefit. In addition, she testified that she was 55 years old and was employed full-time by a local merchant. After Fletcher and her attorney spoke in support of her request for probation, the trial court stated:

“THE COURT: Ms. Fletcher, there are a number of things I want to say about this. It would be very easy for me to send you to prison for a long time because of the intentional nature of this crime and because of the prolonged period over which it occurred, but I’m not going to do that. I’m going to sentence you to a term of imprisonment of fifteen years in the State Penitentiary, which is within the statutory range. I’m going to split that sentence and order that you serve forty-eight hours in the Morgan County jail. I’m going to allow you to serve the balance of the sentence on probation. That’s a fifteen-year probation and your lawyer has presented to me a plan of restitution. It’s a monster to me, and how you’re going to do this, I don’t know, but as long as you come by the money honestly and don’t steal it from somebody else, I’m going to allow you to make payments of restitution on the $200,000.00 which has been submitted as an agreement; and the statutory rate on interest in this State is twelve percent. If you make monthly — what is the amount of the plan? ...
“[Defense counsel]: $1,112.00.
“THE COURT: $1,112.00 per month. I want you to be very very clear in understanding what I’m telling you. Allowing you to stay on probation is conditioned on these payments being made monthly and timely. There are a number of factors that go into that decision that I considered.... The factors ... that I have to weigh are what is an appropriate punishment, as well as what are the rights of the victim. I firmly believe that I have the rights of the citizens of Decatur to look after as well, and I want them to be paid back. That’s a primary factor in my decision. Without an opportunity or without a promise and assurance from you and your lawyer that this restitution is going to be paid, I would send you to prison, and I still may if you let me down. To coin a phrase that is popular that came out of some movie, ‘show me the money.’ I want the money back, and I can’t be more clear about that. I want the City of Decatur to have the money back and I want them to be paid interest money in accordance with the statute. As long as you make these payments, as long as you report to the probation officer timely and stay out of trouble, do what the probation officer says, I’m willing to give you the opportunity....
“THE COURT: If I’m here or whoever succeeds me if I’m not, my orders will be clear and they will be perfectly within their right to revoke your probation on this payment. When I looked at your ease, it’s not your record that would make me want to send you to prison. I guess it’s just the nature of this offense. There are a number of folks that I have had to send to the penitentiary previously who were guilty of theft of property in the first degree; some of them for amounts less than yours, but the distinction with you is that you came, not only admitting your guilt, but repentant; the fact that you were not necessarily under investigation and came forward. That is very significant in this decision. I want you to know that, and for that reason, I’m going to take what I think, frankly, is not the easy course and grant the probation and I wish you well. I hope you find gainful employment and pay this back quicker. I haven’t borrowed any money lately, but I would hope you could find a better interest rate than twelve percent.... I want you ... to be on probation for fifteen years. If I don’t do it that way, the end of your probation is five years and you will never get it paid back in five years. You may and I hope you do, but I don’t foresee how you would do it. This is about as steep a mountain as I think one can climb. That’s my order, and I wish you well.”

At some point after the hearing, the trial court apparently asked Fletcher’s attorney to recalculate a 15-year restitution plan that included 12% interest on $200,000. By that plan, Fletcher would need to make monthly payments of $2,400.34 for 15 years. Fletcher then filed what she called a “motion to reconsider,” in which she asked the trial court “to reconsider its sentencing order ... regarding the payment of restitution.” She stated, in pertinent part:

“1. That on February 5, 1998, the Defendant appeared before this Honorable Court and entered a plea of guilt[y] to the charge of theft in the first degree.
“2. That this plea was blind in nature in that the only agreement Defendant had with the State was the entering of a plea to the charge of Theft I and setting restitution in the amount of $200,000.00.
“3. In [regard] to the payment of restitution, the Defendant, through her attorney, submitted to the Court a payment schedule wherein Defendant was planning to pay $1,112.00 per month for 180 months over 15 years....
“4. That the Court on February 5, 1998, accepted the Defendant’s plea of guilt[y] and sentenced the Defendant to 15 years in prison. However, the Court split that sentence and ordered the Defendant to serve 48 hours in the Morgan County Jail and to serve the remainder of the sentence on 15 [years’] probation.
“5. Further, as a condition of probation, the Court ordered the Defendant to pay restitution in the amount of $200,000.00. In regard to this restitution the Court accepted the Defendant’s payment plan, but, in addition to these monthly payments ordered the Defendant to pay an additional 12% interest on that amount.
“6. At a 12% rate of interest the Defendant would be required to make 180 monthly payments of $2,400.34....
“10. In order to pay restitution in the Court ordered amount of $2,400.34 alone the Defendant would be required to earn a gross income of $40,005.66 per year or $3,333.80 per month. With her basic living expenses costing $800.00 per month and a court ordered restitution payment per month of $2,400.34, Defendant would have to earn a gross income of approximately $53,339.00 per year or $4,444.91 per month. The Defendant does not now have nor has she ever had the ability or the opportunity to earn this amount of money.
“11. The Defendant contends that the victim’s ... actual loss was $200,000.00, the amount [at] which the Defendant agreed restitution should be set. If Defendant made monthly payments on $200,000.00 at 12% interest for 15 years, she would pay more than $432,000.00. Further, the City of Decatur is very stable financially and was not financially impaired as a result of the Defendant’s act. Therefore, the Defendant should only be ordered to pay the amount of the victim’s actual loss and be required to make restitution in an amount which is reasonably and realistically based upon her ability to pay.”

Fletcher filed with her motion an affidavit that stated:

“I am currently employed with a local merchant and my rate of pay is $6.00 per hour. I currently work 40-45 hours per week, but I anticipate that I will be given the opportunity to work up to 60 hours per week in the very near future. If I do work 60 hours per week, my net income would be approximately $13,500.00 per year or approximately $1,125.00 per month.
“I incur certain living expenses each month as follows:
“ — Housing $217.00
“ — Groceries $200.00
“ — Gas $ 50.00
“ — Power $150.00
“ — Telephone $ 35.00
“ — Unexpected and mise, expenses $150.00
“ — Church donations $100.00
“Total $902.00
“If I stopped donating money to my church, my living expenses would be reduced to approximately $800.00 per month.
“I did not graduate high school, but did obtain my GED. I also have completed two or three college courses in accounting and bookkeeping. Prior to being employed with the City of Decatur, I worked at several dry cleaners and for Sears. I made minimum wages or slightly more than minimum wages in these jobs. When I was employed by the City of Decatur I made a gross income of slightly more than $28,000.00 at the time I resigned.
“I see no way possible that I could make restitution payments of $2,400.00 per month. In order to make these payments I would have to work approximately 18.5 hours per day seven days per week and would still have no money left over on which to survive.
“I have plans to marry soon. My future husband has a job wherein he earns enough money to support both of us. His income would allow me to work and pay, as best I could, this restitution. However, under no circumstances would I be able to ever afford $2,400.00 per month as ordered by the Court.
“I do not own anything that is valuable enough to secure a mortgage or a note which would enable me to pay this restitution. I am going to have to work and pay it from the income I earn.”

The trial court denied Fletcher’s motion, with an order stating:

“1. The defendant in the above styled cause entered a plea of guilty to theft of property in the first degree on February 5, 1998. At the time of the theft, the defendant was employed by the City of Decatur, Alabama. The defendant had admitted stealing money from the City of Decatur over a period of years and was unsure of the exact amount of the money she admitted stealing.
“2. Prior to the plea of guilty on February 5, 1998, the defendant’s attorney and J. Patrick Lamb, Assistant District Attorney, the prosecutor to whom this case was assigned, met with the undersigned Circuit Judge in chambers, but off the record, to discuss certain aspects of the trial of the case and also possible settlement by plea bargain. The prosecution and the defendant agreed that the defendant would enter a plea of guilty to the charge of theft in the first degree and set the restitution in the amount of $200,000.00. There was no agreement nor was there any recommendation made by the State regarding a sentence, probation, or the method of payment for the restitution.
“3. The Court made it known to the attorneys that this is the type of crime which the court felt warranted prison time, and upon such a plea would consider probation only if the defendant would submit to the Court a payment plan for the restitution which the defendant could make. The Court made it perfectly clear to the attorneys for the defendant and the prosecution that any order of restitution would include interest at a rate of twelve percent, which is the statutory rate for interest on judgments, and that restitution orders carried the same effect as did civil judgments, therefore any payment schedule must include payment of twelve percent interest fi-om the date of the sentence. The defendant’s attorney was instructed by the Court to submit to the Court a schedule of payments in compliance with the Court’s instructions.
“4. A payment schedule was submitted to the Court showing payments over a fifteen year period at $1,112.00 per month. The Court relied on the computation made by the attorney for the defendant and scheduled a date to accept the defendant’s plea of guilty. Said hearing was conducted on February 5, 1998.
“5. During the sentencing hearing on February 5, 1998, it became apparent that the payment plan submitted to the Court by the defendant’s attorney failed to include interest. The inclusion of the twelve percent interest was made clear to the defendant’s attorney from the beginning and the Court instructed the defendant’s attorney to recalculate the monthly payment to be made by the defendant.
“6. There were a number of factors that went into the decision made by the Court at the sentencing hearing. Even though the Court believes the defendant is not a danger to the community, has no prior criminal history, and voluntarily surrendered to authorities prior to becoming a suspect in the case, the Court would not have under any circumstances granted probation to this defendant but for the assurances to the Court that she was willing and capable of satisfying the restitution order in the amount of $200,000.00 plus interest at a rate of twelve percent per annum.
“Therefore, the Court DENIES the defendant’s motion to reconsider its previous order regarding restitution. The Court further gives written notice to the defendant by virtue of this order that failure to timely make the restitution payments as ordered constitutes a direct violation of the defendant’s terms and conditions of her probation and will result in a revocation of her probation and the imposition of the defendant’s remaining sentence.”

II.

We first consider whether Fletcher preserved for appellate review the matters she now complains of. The State argues that the proper procedure for Fletcher to secure the relief she seeks would have been for Fletcher to move to withdraw her guilty plea. Because she did not take the proper action, the State argues, she is now barred from complaining about the trial court’s imposing the requirement that she pay interest on the $200,000 in restitution. The Court of Criminal Appeals agreed with the State, concluding that Fletcher should have moved in the trial court to withdraw her guilty plea, so that the parties could be returned to the “status quo” as it existed before the trial court accepted her plea. We disagree.

Both this Court and the Court of Criminal Appeals have reviewed a defendant’s arguments concerning the restitution aspect of a sentencing order, without the defendant’s having withdrawn his or her guilty plea. See, e.g., Ex parte Clare, 456 So.2d 357 (Ala.1984); W.D.J. v. State, 785 So.2d 385 (Ala.Crim.App.1998), rev’d on other grounds, 785 So.2d 390 (Ala.2000); Culp v. State, 710 So.2d 1357 (Ala.Crim.App.1996), cert. denied, 710 So.2d 1361 (Ala.1998); D.J.W. v. State, 705 So.2d 521 (Ala.Crim.App.1996); Gladden v. State, 644 So.2d 1267 (Ala.Crim.App.1993). Both this Court and the Court of Criminal Appeals have specifically stated that a post-conviction motion is an appropriate method for bringing the defendant’s dissatisfaction with the restitution award to the attention of the trial court and that such a motion is sufficient to preserve for appellate review issues concerning the restitution award. In Ex parte Clare, this Court stated:

“The State contends that the restitution issue was not preserved for appeal by defense counsel, because no objection was made, as is authorized by Code 1975, § 15-18-69 (1982 Repl.Vol.). We dismiss this argument because the nature of this particular restitution hearing did not allow for objections, as there was no testimony from witnesses. Defendant’s counsel made known to the court his disagreement with the State concerning the amount of restitution, and this was enough in this instance to preserve the issue for review.”

456 So.2d at 359. In Gladden, the Court of Criminal Appeals said:

“The only issue the appellant raises on appeal is whether the trial court erred in setting the amount of restitution at $1,000,000. The state initially argues that this issue was not preserved for appeal because no objection was made at sentencing. The court, however, did not fix the amount of restitution at sentencing. At the sentencing hearing, defense counsel stated, ‘At this time Your Hon- or, we have nothing further to say, pending the assessment of restitution. It depends on what moneys are going to be assessed by the Court.’ After the amount of restitution was set by the court, defense counsel raised this issue in his motion to reconsider. This is sufficient to preserve this issue for appeal. Ex parte Clare, 456 So.2d 357 (Ala.1984).”

644 So.2d at 1268.

After reviewing the transcript of Fletcher’s sentencing hearing, her motion to reconsider, and the trial court’s order denying that motion, we find it clear that Fletcher’s dissatisfaction with the amount of restitution ordered by the trial court arose after the court had held the sentencing hearing. Although the trial court stated at the hearing that it intended for Fletcher to pay interest on the restitution award, it seemed to embrace the monthly-payment schedule Fletcher’s counsel had submitted to the court. According to the trial court’s order, it was not until after the hearing that the court asked Fletcher’s counsel to recompute her restitution payments to include 12% interest for 15 years. At that point, Fletcher filed her motion for reconsideration. Accordingly, we conclude that Fletcher’s motion was sufficient to preserve the alleged error for appellate review.

III.

We affirm that aspect of the Court of Criminal Appeals’ judgment holding that Fletcher is not entitled to enforce what she understood to be an agreement that the total amount of restitution she was to pay would be no more than $200,000. A defendant is not entitled to the specific enforcement of her understanding of a plea agreement. Ex parte Yarber, 437 So.2d 1330 (Ala.1983); Joiner v. State, 625 So.2d 1178 (Ala.Crim.App.1993).

IV.

We now address a question of first impression in this State — whether a trial court can order a defendant to pay interest on an amount ordered as restitution. Although we have not addressed this question, the courts in several of our sister states have. Most of those courts have answered the question in the affirmative. See Clark v. State, 953 P.2d 159 (Alaska App.1998); Valenzuela v. People, 893 P.2d 97 (Colo.1995); Ebaugh v. State, 623 So.2d 844 (Fla.App.1993); Patrick v. State, 184 Ga.App. 260, 361 S.E.2d 251 (1987); State v. Reynolds, 772 So.2d 128 (La.App.2000); People v. Law, 459 Mich. 419, 591 N.W.2d 20 (1999); State v. Brewer, 296 Mont. 453, 989 P.2d 407 (1999); State v. Jensen, 124 N.M. 726, 955 P.2d 195 (N.M.App.), cert. denied, 124 N.M. 311, 950 P.2d 284 (N.M. 1997); State v. Meyers, 571 N.W.2d 847 (S.D.1997); Rodriguez v. State, 710 S.W.2d 167 (Tex.App.—San Antonio 1986). Other courts have answered in the negative. See State v. Foy, 176 Ariz. 166, 859 P.2d 789 (Ariz.App.1993); People v. Hart, 65 Cal. App.4th 902, 76 Cal.Rptr.2d 837 (1998); State v. Akers, 435 N.W.2d 332 (Iowa 1989); State v. Dickenson, 68 Or.App. 283, 680 P.2d 1028 (1984); State v. Hufford, 186 Wis.2d 461, 522 N.W.2d 26 (Wis.App.1994). See generally George Blum, Annotation, Measure and Elements of Restitution to Which Victim Is Entitled Under State Criminal Statute, 15 A.L.R. 5th 391, § 45j (1993). We conclude that the better-reasoned approach allows the imposition of interest on restitution awards.

In Reynolds, the Louisiana Court of Appeal reviewed a trial court’s restitution order requiring that a defendant pay restitution of $39,700 “together with legal interest from the date of each theft until paid.” 772 So.2d at 129. Louisiana law provides that a defendant placed on probation must pay restitution when a victim has suffered “any direct loss of cash” and that restitution must not exceed “the actual pecuniary loss to the victim.” La.Code Crim. Proc. art. 895.1(A). The Louisiana court reasoned: “Interest, being money, is pecuniary. Further, interest is viewed as compensation for the loss of use of one’s money.” 772 So.2d at 131. The court found no abuse of discretion in the trial court’s ordering the defendant to pay interest on the restitution ordered.

In Brewer, the Supreme Court of Montana noted that the issue whether interest could properly be applied to restitution was one of first impression for that court. Montana law, like Kentucky law, requires a defendant to make “full restitution” for a victim’s “pecuniary” or economic loss. MontCode, § 46-18-241 (1997). Included in the definition of “pecuniary loss” are “all special damages ... that a person could recover against the offender in a civil action.” MontCode, § 46-18-243 (1997). The Montana court concluded that interest was properly includable on restitution awards, and it affirmed the trial court’s imposition of 10% interest on the restitution the defendant was ordered to pay.

In Law, the Supreme Court of Michigan concluded that the term “restitution” was understood in Michigan to include interest. The court noted that Michigan law provided that in determining restitution a trial court must consider “the amount of the loss sustained by any victim.” Mich. Comp. Laws, § 780.767(1). The court stated that “because a monetary loss includes the use value of money, i.e., interest,” the statute’s focus on the “loss sustained by any victim” indicated that “interest is a legitimate element of monetary restitution.” 459 Mich, at 424, 591 N.W.2d at 22. The court further quoted a tentative draft of the Restatement (Second) of Restitution, saying that draft was in accord with its view: “ ‘A judgment or order for restitution will, at the claimant’s instance, include an award of an amount as interest required to prevent unjust enrichment of the defendant.’ ” 459 Mich, at 425, 591 N.W.2d at 23 (quoting Restatement (Second) of Restitution (tentative draft), § 28, p. 216).

Alabama law applicable to the imposition of restitution is similar to the law we have discussed above from other states. The Alabama Restitution to Victims of Crimes Act (“ARVCA”) is codified at §§ 15-18-65 to -78, Ala.Code 1975. Section 15-18-65 reads:

“The Legislature hereby finds, declares and determines that it is essential to be fair and impartial in the administration of justice, that all perpetrators of criminal activity or conduct be required to fully compensate all victims of such conduct or activity for any pecuniary loss, damage or injury as a direct or indirect result thereof. The provisions of this article shall be construed so as to accomplish this purpose and to promote the same which shall be the public policy of this state.”

(Emphasis added.) The ARVCA defines the term “pecuniary damages,” at § 15-18-66(2):

“All special damages which a person shall recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s criminal activities; the term shall include, but not be limited to the money or other equivalent of property taken, broken, destroyed, or otherwise used or harmed and losses such as travel, medical, dental or burial expenses and wages including but not limited to wages lost as a result of court appearances.”

This Court has defined “special damages” in a civil context as those that “flow naturally, but not necessarily, from the wrongful act.” Crommelin v. Montgomery Indep. Telecasters, Inc., 280 Ala. 391, 394, 194 So.2d 548, 551 (1967).

In affirming the trial court’s restitution order, the Court of Criminal Appeals noted in its unpublished memorandum that it had previously held in Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), that § 15-18-65, “by reference to the pertinent Alabama civil law, permits a victim to recover all reasonable expenses which are incurred due to the defendant’s wrongful conduct.” The Court of Criminal Appeals then concluded that a logical construction of § 15-18-65 is that interest on a restitution order would be permitted and at times would be necessary to fully compensate victims for their pecuniary losses. The court held: “The trial court was authorized to impose upon Fletcher a duty to pay the City interest when ordering her to make restitution, in order to fully compensate the City for all direct and indirect pecuniary losses resulting from her wrongful conduct.” We affirm that aspect of the Court of Criminal Appeals’ judgment.

Our conclusion that in a criminal case the trial court has the authority to impose interest on a restitution award is strengthened by the fact that § 15-18-78 gives such an award the force and effect of a civil judgment. Section 15-18-78 states:

“(a) A restitution order in a criminal case shall be a final judgment and have all the force and effect of a final judgment in a civil action under the laws of the State of Alabama. The victim on whose behalf restitution is ordered ... shall be entitled to all the rights and remedies to which a plaintiff would be entitled in a civil action under the laws of this state as well as any other right or remedy pertaining to such restitution order as may be provided by law.
“(b) The provisions of this section shall be read and deemed in pari mate-ria with other provisions of law. Provided however, the provisions of this section are cumulative and shall not be construed so as to deprive any victim of any other remedy or relief to which a victim may now or hereafter be entitled pursuant to law.”

Section 15-18-78 also compels us to conclude that the trial court correctly imposed a 12% rate of interest on Fletcher’s restitution. Section 8-8-10 requires that a civil judgment bear interest at a rate of 12% from the date of entry. Nevertheless, a trial court must not only give effect to the incorporation of § 8-8-10 according to the clear terms of § 15-18-78, but it must also adhere to the provisions of § 15-18-68 and Rule 26.11 (discussed infra, in Part V), requiring that a restitution award be tailored to a defendant’s ability to pay. In applying those provisions, the trial court must take into account the effect of 12% interest per annum in calculating a sum for the restitution principal that a defendant should be required to pay over a period of time.

V.

Finally, we address Fletcher’s argument that the trial court, in increasing from $1,112 to $2,400 the monthly payments required of a 55-year-old woman employed in a local retail store, erred in imposing an interest rate upon her that resulted in monthly restitution payments that were beyond her ability to pay. Although a trial court is vested with wide discretion in fashioning a restitution order, that discretion must be guided by the applicable Rules of Criminal Procedure and the restitution statutes. “While these provisions are hot mandatory, they do reflect the general intention of the Alabama Supreme Court and the Alabama legislature that in fashioning a restitution order the trial court should make it reasonable and realistic based upon the defendant’s ability to pay.” Moore v. State, 706 So.2d 265, 272 (Ala.Crim.App.1996). The ARYCA defines “restitution” in § 15-18-66(8) as the “[f]ull, partial or nominal payment of pecuniary damages to the victim or to its equivalent in services performed or work or labor done for the benefit of the victim as determined by the court of record.” Rule 26.11, Ala. R.Crim. P., provides:

“(a) Imposition of Restitution. Restitution should be ordered in all cases where a victim has been injured or damaged. The financial resources and obligations of the defendant and the burden that payment of restitution will impose should be considered in determining how much restitution is to be paid or collected, i.e., whether to be paid by installments and what length of time should be given for payment.”

The ARVCA provides further guidance in § 15-18-68:

“In determining the manner, method or amount of restitution to be ordered the court may take into consideration the following:
“(1) The financial resources of the defendant and the victim and the burden that the manner or method of restitution will impose upon the victim or the defendant;
“(2) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court;
“(3) The anticipated rehabilitative effect on the defendant regarding the manner of restitution or the method of payment;
“(4) Any burden or hardship upon the victim as a direct or indirect result of the defendant’s criminal acts;
“(5) The mental, physical and financial well being of the victim.”

In Moore, the Court of Criminal Appeals addressed a situation similar to Fletcher’s in that the trial court had ordered Moore to pay restitution in an amount that clearly exceeded his ability to pay. The Court of Criminal Appeals stated:

“[T]he trial court ordered Moore to pay the restitution in monthly installment payments of $2000. The record before us contains ample evidence that this amount is far beyond Moore’s financial means. Because the payment of this amount is a term of Moore’s probation, an inability to pay that amount would negatively affect Moore’s ability to meet the terms of his probation.
“This court must have, on the record, the trial court’s specific findings and the specific underlying facts and circumstances thereof that led the trial court to grant restitution as to each claim — facts deduced from legal evidence that support the trial court’s finding that each amount awarded is for (1) damages recoverable under the Alabama Restitution to Victims of Crimes Act and (2) that were proximately caused by Moore’s criminal activity. Similarly, we need an explanation on the record of why the trial court ordered monthly payments of $2000 when the record before this court shows that that amount would clearly exceed Moore’s financial ability. We find that the record needs to be supplemented before we can determine whether the trial court abused its discretion in the amount and manner of restitution.”

706 So.2d at 268-69. See also W.D.J., supra, and Culp, supra.

Fletcher had one hearing, at which the trial court accepted her guilty plea, sentenced her, and imposed a restitution order. As we have previously stated, Fletcher’s objection to the terms of the restitution ordered by the court came about after the trial court had ordered her counsel to recompute the monthly-payment schedule to include the payment of 12% interest. The record does not indicate that the trial court held a hearing after Fletcher moved for a reconsideration; therefore, the record contains no explanation as to why the trial court required Fletcher to make monthly payments that the record indicates are far beyond her financial means. Section 15-18-67, a part of the ARVCA, provides that a defendant is entitled to a restitution hearing. Section 15-18-69 explains what is required at such a hearing:

“At such restitution hearings, the defendant, the victim, the district attorney, or other interested party may object to the imposition, amount or distribution of restitution or the manner or method thereof and the court shall allow all such objections to be heard and preserved as a matter of record. The court shall thereafter enter its order upon the record stating its findings and the underlying facts and circumstances thereof.”

We reverse that aspect of the judgment of the Court of Criminal Appeals affirming the amount of restitution and the method of its payment, and we remand the cause for the Court of Criminal Appeals to instruct the trial court to hold any further proceedings and to enter any supplemental orders that are necessary in order for the trial court to comply with the ARVCA in a manner consistent with this opinion.

VI.

We affirm the judgment of the Court of Criminal Appeals insofar as it holds that the trial court properly refused to specifically enforce Fletcher’s understanding of the plea agreement and holds that the trial court properly required Fletcher to pay interest upon the principal amount to be paid as restitution. We further hold that the trial court correctly imposed an interest rate of 12%. In all other respects, we reverse the judgment of the Court of Criminal Appeals and remand the cause for that court to order further proceedings pursuant to the instructions given in Parts IV and V above.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

BROWN, J., concurs in part and dissents in part.

BROWN, Justice

(concurring in part and dissenting in part).

•I concur in Part III, holding that Fletcher is not entitled to enforce what she says she understood to be an agreement that the total amount of restitution would be no more that $200,000, and I concur in Part IV, holding that the trial court, when ordering Fletcher to pay restitution, was authorized to impose a duty to pay interest. However, I cannot join, and therefore respectfully dissent from, Parts II and V, which effectively allow Fletcher to retain the considerable benefits of her guilty plea while pleading poverty as a means of escaping her own obligations under the plea.

While the majority opinion states that Fletcher is not entitled to specific performance of the terms of her guilty plea as she claimed to understand them, the effect of the majority opinion is to force the trial court to accept a plea under terms the trial court would not have accepted in the first instance — terms more favorable to Fletcher than those the trial court was willing to accept. The Court of Criminal Appeals correctly stated in its unpublished memorandum:

“It is well settled that where there is a question as to the existence and terms of a plea agreement, the trial court is in the best position to ascertain the facts and to determine the intent of the parties. Kresler v. State, 462 So.2d 785, 789 (Ala.Crim.App.1984); see also Fuller v. State, 481 So.2d 1178, 1181 (Ala.Crim.App.1985). A trial court’s determination regarding the existence and terms of a plea agreement is not readily disturbed on appellate review. Ex parte Clay, 562 So.2d 1307, 1309 (Ala.1990); see also Ex parte Swain, 527 So.2d 1279 (Ala.1988).
“Here, the trial court found that there was no agreement nor was there any recommendation made by the State regarding Fletcher’s sentence, probation, or the method of payment for the restitution. The trial court further found that it was the understanding of the parties, including Fletcher’s attorney, that any order of restitution would include interest at a rate of 12 percent per annum and that any payment schedule must include payment of such interest. Finally, the trial court stated that it would not have under the circumstances granted probation to Fletcher but for the assurances to the court that she was willing and capable of satisfying the restitution order in the amount of $200,000 plus interest. We find no abuse of discretion in the trial court’s determination of the terms upon which Fletcher’s guilty plea was entered.
“Although the trial court’s determination in this regard may appear to place an onerous burden upon Fletcher with respect to the monthly payments for which she is obligated, it does not lie with Fletcher to seek, as she does, to take advantage of the obvious benefits bestowed upon her by the court’s acceptance of her guilty plea (i.e., a split sentence with probation and only 48 hours to be served in confinement) and to seek specific performance of an alleged plea agreement under terms as only she claims to have understood them. As the State correctly argues in its brief to this court, if Fletcher believed that her plea was entered without a full understanding of her obligations under the restitution order or that the trial court, in ordering her to pay interest, had failed to effect the terms of her alleged agreement with the State concerning restitution, Fletcher should have moved to withdraw her guilty plea in the trial court, allowing the parties to be returned to the status quo existing before her plea was accepted by the trial court. Fletcher chose not to move to withdraw her guilty plea; instead she seeks to have the trial court require her to pay only the restitution she claims she is able to pay — even though the trial court found that all parties understood that Fletcher, in pleading guilty, would be obligated to pay interest to her victim, and even though the trial court stated that it would not have granted probation to Fletcher but for the assurances to the court that she was willing and capable of satisfying the restitution order in the amount of $200,000 plus interest. Fletcher is not entitled to the relief she seeks.”

Fletcher v. State (No. CR-97-1059) 778 So.2d 869 (Ala.Crim.App.1999) (table).

If Fletcher truly entered her guilty plea without a full understanding of her potential obligations as they might be imposed by the trial court — if there was no meeting of the minds — then she should have sought to withdraw her plea. Although she did not do this, she is now, nevertheless, being allowed to dictate the terms of her plea.

As a final note, because this case is being remanded for further proceedings on the question of the amount of restitution Fletcher can pay and the method of its payment, I would recommend that the court inquire into a particular matter that is relevant to the question of Fletcher’s ability to pay restitution — what became of the considerable sum of money Fletcher, by entering her guilty plea, admitted to stealing.

      . Count One of the indictment charged Fletcher with the theft of $214,658.17 from the City of Decatur; a second count was dismissed when Fletcher entered her plea as to Count One.

      . See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (Ala.Crim.App.1971). See also Rule 14.4, Ala. R.Crim.P.

      . Several United States Courts of Appeal also have upheld restitution orders that included interest. See, e.g., Virgin Islands v. Davis, 43 F.3d 41 (3d Cir.1994), cert. denied, 515 U.S. 1123, 115 S.Ct. 2280, 132 L.Ed.2d 283 (1995); United States v. Rochester, 898 F.2d 971 (5th Cir.1990); United States v. Smith, 944 F.2d 618 (9th Cir.1991), cert. denied, 503 U.S. 951, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992); United States v. Patty, 992 F.2d 1045 (10th Cir.1993).


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Earnestine FLETCHER v. STATE.
    CR-97-1059.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Roy Scott Anderson, Decatur, for appellant.
    William H. Pryor, Jr., atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

WISE, Judge.

Earnestine Fletcher pleaded guilty to one count of first-degree theft of property, a violation of § 13A-8-3, Ala. Code 1975. She was sentenced to 15 years’ imprisonment; however, that sentence was suspended and she was ordered to serve 48 hours in the county jail. Pursuant to her negotiated plea agreement, Fletcher also agreed to pay $200,000 restitution, plus interest at the statutory rate, amortized over a 15 year period. This Court affirmed Fletcher’s conviction and sentence, by an unpublished memorandum. Fletcher v. State (No. CR-99-1059), 778 So.2d 869 (Ala.Crim.App.1999) (table). On March 30, 2001, the Alabama Supreme Court reversed that part of this Court’s judgment affirming the amount of restitution Earnestine Fletcher was ordered to pay and the method of payment. See Ex parte Fletcher, 849 So.2d 900 (Ala.2001). That Court ordered this Court to remand the cause to the trial court with instructions that that court “hold any further proceedings and to enter any supplemental orders that are necessary in order for the trial court to comply with the ARVCA [the Alabama Restitution to Victims of Crimes Act] in a manner consistent with this opinion.” 849 So.2d at 911.

Because this Court is bound by the decisions of the Alabama Supreme Court, § 12-3-16, Ala. Code 1975, and “is without authority to overrule the decisions of that court,” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972), we are required to follow the holding of the majority in Ex parte Fletcher, and to remand this case to the trial court for further proceedings consistent with that opinion. However, this Court would note with approval the following language from Justice Brown’s dissent:

‘While the majority opinion states that Fletcher is not entitled to specific performance of the terms of her guilty plea as she claimed to understand them, the effect of the majority opinion is to force the trial court to accept a plea under terms the trial court would not have accepted in the first instance-terms more favorable to Fletcher than those the trial court was willing to accept.
“If Fletcher truly entered her guilty plea without a full understanding of her potential obligations as they might be imposed by the trial court — if there was no meeting of the minds-then she should have sought to withdraw her plea. Although she did not do this, she is now, nevertheless, being allowed to dictate the terms of her plea.”

849 So.2d at 911-12.

In accordance with the majority opinion in Ex parte Fletcher, this Court remands this cause to the trial court for proceedings consistent with that opinion. However, because this case is being remanded for further proceedings on the question of the amount of restitution Fletcher can pay and the method of its payment, the trial court is instructed to follow the recommendation of Justice Brown, namely, to “inquire into a particular matter that is relevant to the question of Fletcher’s ability to pay restitution — what became of the considerable sum of money Fletcher, by entering her guilty plea, admitted to stealing.” 849 So.2d at 912.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. SHAW, J., concurs in the result.

      . Fletcher was charged with two counts of first-degree theft of property. Count One of the indictment charged Fletcher with the theft of $214,658.17 from the City of Decatur; Count Two charged her with the theft of $148,124.52 from the City of Decatur, for an aggregate total of $362,782.69. In exchange for Fletcher’s plea, the State recommended that Count Two of the indictment be dismissed.

       Note from the reporter of decisions: On October 18, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: LYONS, Justice.

text:
    Bobby L. MOORE and Melba Jean Moore v. PRUDENTIAL RESIDENTIAL SERVICES LIMITED PARTNERSHIP et al.
    1010767.
    Supreme Court of Alabama.
    Sept. 6, 2002.
    Rehearing Denied Nov. 15, 2002.

      Darrell L. Cartwright of Cartwright Law Corporation, Birmingham, for appellants.
    Carter H. Dukes and M. Brent Yarbor-ough of Huckaby, Scott & Dukes, P.C., Birmingham, for appellees Prudential Residential Services Limited Partnership and Prudential Homes Corporation.
    Michael R. Lunsford of Porterfield, Harper & Mills, P.A., Birmingham, for appel-lees Prudential South O’Town Realty, Herbert G. Sanders, and Nancy Rogers.
   LYONS, Justice.

Bobby L. Moore and Melba Jean Moore sued Prudential Residential Services Limited Partnership (“Prudential Residential”); Prudential Homes Corporation (“Prudential Homes”); Prudential South O’Town Realty, Inc. (“South O’Town”); Herbert G. Sanders; Nancy Rogers; Lou Thorne; Thorne Realty, Inc.; David F. Lundy; and Cherry Ann Lundy. The Moores alleged, against one or more of these defendants, breach of contract, fraudulent misrepresentation, fraudulent suppression, conspiracy, breach of fiduciary duty, negligence, and wantonness in the sale of the Lundys’ house to the Moores. The trial court entered a summary judgment in favor of each of the defendants. The Moores appealed. We affirm in part, reverse in part, and remand.

I. Factual Background and Procedural History

Jean Moore worked as a real estate agent in the late 1960’s and again for a brief period in the mid-1980’s. Bobby Moore is a retired insurance adjuster. In May 1996, the Moores asked Lou Thorne, their real estate agent, to schedule an appointment for them to view the house that is the subject of this action. Thorne contacted Rogers, the listing agent for the house, at South O’Town and arranged for the Moores to view the house. The Lun-dys, the occupants of the house, were selling the house because David Lundy was being transferred by his employer. David Lundy’s employer had an agreement with Prudential Relocation, a division of Prudential Residential, pursuant to which Prudential Relocation assisted transferred employees in selling their homes. Rogers identified Prudential Relocation as the seller of the house, and she testified that she represented Prudential Relocation in the transaction.

Thorne accompanied the Moores to the house during their first visit. Rogers and Cherry Lundy were also present. The Moores walked through the house and inspected each room during this visit. The house was furnished; thus, some portions of the walls were not visible. Neither the Moores nor Thorne asked Rogers or Cherry Lundy to move any of the furniture so they could view the portions of the walls hidden behind the furniture. Jean Moore testified that, while they were inspecting the basement den, she asked Rogers if there was “any type of water problem in this basement” and that Rogers said, “No.” Bobby Moore also testified that while he was in the basement, he asked Cherry Lundy, “Have you ever had any water come through the walls? And [Cherry Lundy] said, ‘No, sir, we have never had any water problems in the basement.’ ” Thorne testified that she asked both the Lundys and Rogers if there were any water problems with the house; that she heard the Moores ask the Lundys on at least three occasions if there were any water problems with the house; and that Cherry Lundy responded that they had never had any water problems. Thorne further testified that on one or two occasions Rogers was present when the Moores asked Cherry Lundy about water problems with the house. Thorne testified that Rogers responded that “[t]o her knowledge, there had never been any water problems.”

Rogers testified that the Lundys told her that the house was in good condition with the exception of a gutter that needed repair; that the Lundys never told her about any water problems with the house; and that she was unaware of any water-related problems. Rogers further testified that no one, including the Moores, ever asked her if there were any water problems with the house.

Jean Moore testified that Rogers told the Moores that the house had been inspected on two occasions before they visited the house. Jean Moore said that Rogers informed her and her husband that all of the repairs that had been indicated as a result of those inspections had been made, except for the addition of a fire wall. Rogers denied telling the Moores that all those repairs had been completed.

The Moores returned to visit the house a second time the evening of the day of their first visit. They again viewed most of the rooms of the house. After this second visit, the Moores decided to make an offer for the house. Thorne prepared a contract and the Moores made an offer. The Moores’ offer was to be subject to a “conventional appraisal,” not “as is.” The Lundys counteroffered with an increased price and by writing “as is” on the contract. The contract had alternative paragraphs, one of which had to be initialed by both parties to become part of the contract. Paragraph A stated that the home was to be sold “as is.” Paragraph B stated that the sale was subject to a “conventional appraisal” and included a blank where the maximum dollar value of the repairs the seller was required to make was to be written in. Thorne testified that Rogers told her that the house had to be sold “as is” because there had already been two home inspections. Thome testified that the Moores were not happy buying the home “as is,” but that Bobby Moore nevertheless said: “We will go ahead and take the contract.”

After some other minor changes, including the Moores’ agreeing to permit the Lundys to stay in the house one month after the closing, Thorne prepared another copy of the sales contract, which both parties accepted. The contract recognized Prudential Residential as the seller of the home pursuant to its agreement with David Lundy’s employer. Kimberly Clare signed the contract on behalf of Prudential Residential. The sales contract states in part:

“9. CONDITION OF THE PROPERTY: NEITHER SELLER NOR ANY AGENT MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING CONDITION OF THE PROPERTY EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN. Purchaser has the obligation to determine any and all conditions of the Property material to Purchaser’s decision to buy the Property, including, without limitation, the condition of the heating, cooling, plumbing, and electrical systems and any built-in appliances and the roof and the basement, including leaks therein; the size and area of the Property; construction materials, including floors; structural condition; utility and sewer or septic tank availability and condition; subsurface conditions, including radon and other potentially hazardous materials and/or gases; and any matters affecting the character of the neighborhood. Purchaser shall have the opportunity to determine the condition of the Property in accordance with A/ ‘B,’ or ‘C’ below as selected by the parties....
“SELECT EITHER ‘A’ OR ‘B’ OR ‘B’ and ‘C’ BELOW BY INITIALING-CHOICE MUST BE INITIALED BY BOTH PARTIES TO BE PART OF THE CONTRACT.
“B. Purchaser has inspected the Property, either personally or through others of Purchaser’s choosing, and, without relying on any representation or warranty from Seller or Broker or any salesperson or any printed or written description of the Property, accepts the Property in its present ‘as is’ condition, including ordinary wear and tear to closing, except that Seller agrees (subject to any dollar limits below) to (i) make any repairs required by the lending institution; (ii) deliver the heating, cooling, plumbing, and electrical systems and any built-in appliances in normal operating condition at the time of the closing; and (iii) perform the following Corn. Appraisal. REPAIRS REQUIRED OF SELLER UNDER PARAGRAPH (B) SHALL NOT EXCEED $-0-, ...”

(Capitalization original; some emphasis original; some emphasis supplied.) Both the Moores and Kimberly Clare initialed this section. Following this section was the following statement:

“Purchaser has the right and responsibility to walk through and inspect the Property prior to closing and notify Seller immediately if the Property is not in the condition agreed under ‘A,’ ‘B,’ or ‘C’ above, whichever one has been selected by the parties. After closing, all conditions of the property are the responsibility of the Purchaser.”

The contract then included the following disclaimer:

“10. DISCLAIMER: Seller and Purchaser acknowledge that they have not relied upon advice or representations of Broker (or Broker’s associated salespersons) relative to ... (ii) structural condition of the Property, including condition of the roof and basement, ... (iv) the nature and operating condition of the electrical, heating, air conditioning, plumbing, water, heating systems and appliances; ... (ix) any other matters affecting their willingness to sell or purchase the Property on the terms and price herein set forth. Seller and Purchaser acknowledge that if such matters are of concern to them in the decision to sell or purchase the Property, they have sought and obtained independent advice relative thereto.”

Both the Moores and Kimberly Clare also initialed this disclaimer.

The last clause of the contract, just above the parties’ signatures, states:

“19. ENTIRE AGREEMENT: This Contract constitutes the entire agreement between Purchaser and Seller regarding the Property, and supercedes all prior discussion, negotiations and agreements between Purchaser and Seller whether oral or written. Neither Purchaser, Seller, nor Broker or any sales agent shall be bound by any understanding, agreement, promise, or representation concerning the Property, expressed or implied, not specified herein.
“THIS IS INTENDED TO BE A LEGALLY BINDING CONTRACT. IF YOU DO NOT UNDERSTAND THE LEGAL EFFECT OF ANY PART OF THIS CONTRACT, SEEK LEGAL ADVICE BEFORE SIGNING.”

(Capitalization original; emphasis in contract.) The Moores and Kimberly Clare also signed a rider to the sales contract before the closing that stated, in part:

“2. Condition of Premises: Buyer understands that Seller is a relocation management service and has never lived on or in the Property. The Property, including the contents, being sold and purchased are not new, and are being sold ‘as is,’ in their present condition. Neither Seller nor any of its agents are making or have made any representations concerning the Property....
“4. Buyer’s Duty to Inspect/Test: Buyer agrees to inspect or to have the Property inspected by others on Buyer’s behalf to determine the existence of defects, if any. All inspections shall be at Buyer’s sole cost and expense. Seller recommends that Buyer secure such surveys, professional building inspection reports, ... and other reports and inspections as are appropriate to determine the condition of the Property.”

The rider also stated: “Buyer shall have the right to make a final inspection of the Property immediately prior to settlement to be sure that its condition has not deteriorated from the date of the Agreement and Rider (ordinary wear and tear excepted).”

After entering into the sales contract for the purchase of the house, the Moores made at least two other visits to the house before the closing. The Moores showed the house to a friend and videotaped the inside of the house. The Moores also made a final “walk-through” of the house before the closing.

The Moores also received a copy of the “Relocation Home Inspection Report” before the closing. Jean Moore testified that Rogers faxed the inspection report to Thorne, but Rogers testified that she never saw the inspection report and that she believed that Prudential Relocation had faxed it directly to Thorne. This inspection report had been prepared for Prudential Relocation in February 1996. The inspection report cited a few defects in the house, including rusted gutters and a leak at one toilet, but it stated that surface water control and the roof, bearing walls and floors, water pipes, drainpipes, and the tub and shower combination were acceptable. The inspection report also stated that there was no evidence of ongoing water penetration in the basement or attic.

The last page of the six-page inspection report stated: “This report and form is much more limited than a typical whole house inspection which is normally obtained by a buyer when purchasing a home.” The inspection report further stated: “The inspection was visual, not technical.... No opinion is given as to the advisability of the purchase of the property.” The inspection report also stated the following, under the heading “Exclusions”:

“The inspection and this report were completed solely for Prudential, to provide Prudential with information about the property, and are not intended to be used by any party, including but not limited to, buyers, seller, lenders, real estate brokers/agents, and or appraisers, other than Prudential. Prudential is providing this report to prospective buyers in order to comply with it’s [sic] disclosure obligations under the law. This report is not a representation, guarantee, or warranty of the condition of the property. Neither the inspection company nor Prudential assume any liability to any third parties in connection with the inspection or this report, including but not limited to liability in connection with unreported defects or conditions, the cost of any repairs, personal injury, or any losses, damages or expenses of any other nature.”

The report concluded by urging prospective buyers to obtain their own home inspection before purchasing the house, stating that “[t]he American Society of Home Inspectors at (708) 280-1919 can be contacted for assistance in locating an inspector.”

The other inspection report was prepared by an independent home inspector for another prospective purchaser. Rogers testified that she had never seen this report and had no firsthand knowledge regarding the report, but that she had seen a list of requested repairs that the prospective purchaser’s agent had asked the Lundys to make based on that report. Rogers also testified that she provided this list of repairs to Thorne. Jean Moore testified that Rogers told the Moores that she could not obtain a copy of this inspection report for them from the previous purchaser because it was privileged information. No party was able to obtain a copy of this inspection report, and neither the inspection report nor the list of requested repairs appears in the record. The only items Rogers could recall from the list of repairs were a “problem” with the gas grill, an improperly attached deck, a loose handrail, and “something about a gutter.” Jean Moore testified that Rogers told the Moores at closing that “everything on both inspections had been done” with the exception of the installation of a fire wall, which was not required by law. Rogers, however, testified that she did not tell the Moores that everything revealed by the inspection reports had been fixed. Rogers testified that she told Thorne that David Lundy had said that he had made repairs for the previous prospective purchaser and that he had made all the repairs he was going to make to the property.

Jean Moore testified that Rogers did not tell them that they could not have an additional home inspection performed. However, she testified that Rogers said: “[T]here is no use to have one. There has [sic] been two, and that’s a waste of money.” Jean Moore testified that she let Rogers “more or less sway me that there wasn’t one needed.” Jean Moore further testified that she asked Thorne what they should do and that Thorne said: “[W]ell, Nancy has assured us there’s been two, that there is [sic] no problems, and it’s going to cost you another four to five hundred dollars” for a third home inspection. Jean Moore also testified: “I never would take somebody’s hundred percent word, there’s nothing wrong with this house. That was for the inspector to come in and find or not find, to me.” Thorne testified that she was present when Rogers asked the Moores if they wanted a third inspection. Thorne testified: “They said no, since there had already been two.” Thorne further testified that the Moores asked her if they should get a third inspection, and that she told them she did not believe it was necessary because, she said, the house had already been inspected twice and it appeared that all of the repairs called for in those inspections had been made.

The Moores took possession of the house several weeks after closing. After taking possession, they discovered a number of defects in the house: rotted soffit and damaged gutters on the front of the house; a burst pipe that had caused the studs and the floor in the hallway to rot; loose parquet tiles in the hallway floor caused by the excess moisture; wastewater that had seeped into a wall and into the basement bathroom; rotted baseboard along the basement wall; yellowed carpet in the basement (which had been replaced in March) caused by moisture; cracks in almost every door in the house when the excess moisture dried out; a roof that leaked into a light fixture; inoperable kitchen light fixtures with faulty wiring; chimneys that leaked because they were not sealed; a bathtub that leaked and damaged the basement ceiling; a second-floor toilet that leaked damaging the wall in the first-floor bathroom; water stains on the ceiling in every room; plasterboard in the kitchen damaged by excess moisture; surface water that had penetrated the basement wall; and the rotted wood underneath the steps going from the first floor to the basement caused by water damage. Jean Moore testified that a roofer they asked to repair the roof said, “Lady, you bought a rotting, falling down dump.”

As previously noted, Jean Moore had worked as a real estate agent and Bobby Moore had worked as an insurance adjuster. Bobby Moore testified that, as an insurance adjuster, he occasionally assessed storm damage to houses — including water damage — and that he recognized the signs of water leakage in houses. The Moores had also purchased at least six other pieces of real property and had sold at least four pieces of real property before they purchased this house. Prudential Residential offered the affidavit of its director for client services, Sharon Adkin-son. Adkinson stated that South O’Town was an independent contractor hired by Prudential Residential to facilitate the sale of the Lundys’ house. Adkinson further stated that Prudential Residential neither reserved nor exercised control over how South O’Town or its employees sold the house, “so long as the sale occurred within the parameters of the agreement between Mr. Lundy and South O’Town.”

Herbert Sanders is the broker at South O’Town. Sanders testified that South O’Town was a franchise of Prudential Residential. Sanders also testified that Rogers was an independent contractor of South O’Town, and that he did not supervise Rogers. However, he testified that he reviewed her contracts for potential problems. Sanders also testified: “The qualifying broker is responsible for all of their [sic] sales associates when situations come up.” The Moores had no contact with Sanders before the closing.

The Moores initially sued Prudential Residential, Prudential Home, South O’Town, Sanders, Rogers, and the Lundys, alleging breach of contract, fraudulent misrepresentation, fraudulent suppression, and conspiracy. The Moores amended their complaint to add a negligence claim against each of those defendants. South O’Town, Sanders, Rogers, Prudential Residential, and Prudential Homes filed motions for a summary judgment. The trial court denied the motions filed by South O’Town, Rogers, and Sanders, but entered a summary judgment for Prudential Residential and Prudential Homes. The Lun-dys filed a motion to dismiss for want of prosecution. The trial court granted the Lundys’ motion, but later granted the Moores’ motion to vacate the order dismissing the Lundys as defendants and reinstated the Moores’ claims against them.

The Moores later amended their complaint a second time. This amendment added Thorne and Thorne Realty as defendants and added breach-of-contract and negligence claims against them; breach-of-fiduciary-duty counts against Thorne, Thorne Realty, Rogers, Sanders, and South O’Town; and a wantonness count against the Lundys, Prudential Residential, Prudential Homes, South O’Town, Rogers, and Sanders. Thorne and Thorne Realty settled the Moores’ claims against them; they are not parties to this appeal. South O’Town, Sanders, and Rogers then filed a renewed motion for a summary judgment; the trial court granted their motion and entered a summary judgment in their favor. The trial court also entered a summary judgment in favor of the Lundys even though they did not file a summary-judgment motion. Finally, the trial court entered a final judgment dismissing the claims against Thorne and Thorne Realty pursuant to the settlement agreement entered into by the Moores, Thorne, and Thorne Realty. The judgment also stated that all claims against Prudential Residential, Prudential Homes, South O’Town, Sanders, Rogers, David Lundy, and Cherry Lundy had been disposed of pursuant to Rule 12 or Rule 56, Ala. R. Civ. P., and that the orders entered concerning those defendants were now final. The Lundys are not presently represented by counsel, and they did not file a brief with this Court.

II. Standard of Review

We review a summary judgment de novo. Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369 (Ala.2001).

“We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw.”

792 So.2d at 372 (citations omitted).

III. Propriety of the Summary Judgments

The Moores devote almost their entire brief to this Court to a discussion of their fraudulent-misrepresentation claim against Rogers. They cite no authority for their conclusory statement that Sanders and South O’Town are vicariously liable for Rogers’s actions. They also cite no authority for their argument that Prudential Residential and Prudential Homes are hable for negligence and are vicariously hable for Rogers’s actions. Because the Moores have cited no authority in support of these arguments, we will not consider them. Rule 28(a)(10), Ala. R.App. P., Whited v. Holmes, 816 So.2d 20, 26 (Ala.2001). Moreover, the Moores do not address in their brief on appeal their conspiracy, wantonness, suppression, or breach-of-contract claims. “ “When an appellant fails to argue an issue in [his] brief, that issue is waived.’ ” Ex parte Martin, 775 So.2d 202, 206 (Ala.2000) (quoting Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982)). Thus, the only issues before us are whether the trial court properly entered a summary judgment in favor of Rogers on the Moores’ fraudulent-misrepresentation claim against her and whether the trial court properly entered a summary judgment in favor of the Lundys despite their failure to move for a summary judgment. With respect to other issues, we affirm the trial court’s summary judgments in favor of Prudential Residential, Prudential Homes, South O’Town, and Sanders.

A. Fraudulent Misrepresentation as to Rogers

To survive a motion for a summary judgment on a claim for fraudulent misrepresentation, the Moores needed to establish the existence of a genuine issue of material fact as to four elements: “ ‘(1) a false representation, (2) concerning a material existing fact, (3) [reasonably] relied upon by the plaintiff (4) who was damaged as a proximate result.’ ” Fisher v. Comer Plantation, Inc., 772 So.2d 455, 463 (Ala.2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)). See also Foremost Ins. Co. v. Parham, 693 So.2d 409, 422 (Ala.1997).

Although Alabama has abrogated the rule of caveat emptor in the sale of new real estate, that rule still applies in the sale of used real estate. Blaylock v. Cary, 709 So.2d 1128, 1130 (Ala.1997); Ray v. Montgomery, 399 So.2d 230, 233 (Ala.1980). Thus, in the sale of used real estate, a seller or the seller’s agent generally has no duty to disclose to the purchaser any defects in the property. Blaylock, 709 So.2d at 1130; Cato v. Lowder Realty Co., 630 So.2d 378, 382 (Ala.1993). However, this Court has recognized exceptions to this rule:

“Under § 6-5-102, Ala.Code, 1975, the seller has a duty to disclose defects to a buyer if a fiduciary relationship exists between the parties. In addition, if the buyer specifically inquires about a material condition concerning the property, the seller has an obligation to disclose known defects.”

Commercial Credit Corp. v. Lisenby, 579 So.2d 1291, 1294 (Ala.1991).

“Moreover, if the agent (whether of the buyer or of the seller) [or the seller] has knowledge of a material defect or condition that affects health or safety and the defect is not known to or readily observable by the buyer, the agent [or seller] is under a duty to disclose the defect and is liable for damages caused by nondisclosure.”

Fennell Realty Co. v. Martin, 529 So.2d 1003, 1005 (Ala.1988). See also Blaylock, 709 So.2d at 1131.

The Moores argue that Rogers had a duty to disclose defects in the property because, they say, they specifically inquired about water problems in the house, and that Rogers breached this duty by misrepresenting to them that the house had no water problems. The Moores also argue that Rogers misrepresented to them that all relevant repairs that were required according to the previous inspections had been made. They, do not argue that either the Lundys or Rogers had “knowledge of a material defect or condition that affects health or safety and the. defect is not known to or readily observable by the buyer.” Fennell Realty Co., 529 So.2d at 1005. They also do- not argue that any of the defendants owed them a fiduciary duty. Lisenby, 579 So.2d at 1294.

Where a purchaser’s direct inquiry would otherwise impose a duty of truthful disclosure, this Court has held that a purchaser’s fraud claim is precluded by language in a sales contract stating that the purchase is “as is.” Leatherwood, Inc. v. Baker, 619 So.2d 1273, 1274 (Ala.1992); Haygood v. Burl Pounders Realty, Inc., 571 So.2d 1086, 1089 (Ala.1990); Massey v. Weeks Realty Co., 511 So.2d 171, 173 (Ala.1987). In Massey, after the purchaser noted damage to some exterior columns, the real estate agent stated that the damage was caused by dry rot and that the damage was inexpensively remedied. The purchaser then signed an “as is” contract for the purchase of the house without having the house inspected for termites. The contract further provided that the realtor did not warrant or guarantee the condition of the property. After he moved into the house, the purchaser found that the house was infested with termites. This Court held that the purchaser “did not have the right to rely on the oral representations of [the agent] made prior to the execution by [the purchaser] of the form containing the ‘as is’ provision and the purchase agreement that provided that the realtor did not warrant or guarantee the condition of the property.” Massey, 511 So.2d at 173.

In Haygood, the buyers asked the sellers, themselves real estate agents, if the basement had ever leaked, and the sellers replied, “[N]o, it is well constructed.” There was evidence, however, indicating that the sellers had had repair work performed in the basement because of cracks in the foundation walls that had permitted water to' penetrate the basement. The buyers signed an “as is” contract for the purchase of the house. The sales contract also contained a clause that stated:

“ ‘Neither the Seller nor the Broker have made or make any other representations about the condition of the property and the Purchaser agrees that he has not relied on any other representation....’”

571 So.2d at 1089. After holding that the Haygoods had not alleged that they had relied on the misrepresentations, this Court concluded that “even if they had made such an allegation, the plaintiffs’ signing of the two documents that indicated no reliance would have made the summary judgment ... proper.” 571 So.2d at 1089.

In Leatherwood, the purchasers asked a real estate agent to inquire about the foundation of a house they were interested in purchasing. The real estate agent contacted the agent who had previously listed the house, and that agent informed her that the sellers knew of only one crack around the air-conditioning system. The Bakers then signed an “as is” sales contract for the property. After the Bakers moved into the house, they discovered severe problems; the house began to crack in several places. The realty company had documents in its possession that indicated that the house had structural problems. This Court held that the Bakers’ signing of an “as is” contract prohibited them from pursuing both their negligence and fraud claims against the realty company. Leath-erwood, 619 So.2d at 1274.

Chief Justice Hornsby dissented in Leatherwood. He reviewed the law of other states and concluded that “[v]irtually every other state that has addressed the effect of an ‘as is’ provision in a contract for the purchase of used residential real estate has held that the ‘as is’ provision does not insulate a vendor from liability for fraud.” Leatherwood, 619 So.2d at 1276 (Hornsby, C.J., dissenting). After citing numerous cases from other jurisdictions holding that an “as is” clause does not preclude a fraud claim, the dissent stated: “I would abandon the position this Court adopted in Massey, because it distorts the law of this state and permits a vendor to contract away liability for intentional wrongdoing. Instead, I would adopt the position that an ‘as is’ purchase contract does not shield a vendor from liability for fraudulent inducement.” 619 So.2d at 1276.

The Moores primarily rely upon Boswell v. Coker, 519 So.2d 493 (Ala.1987), decided before Leatherwood, for the proposition that a fraud claim is not precluded by “as is” language and contract language stating that no representations were made as to the condition of the property. In Boswell, the purchaser, after signing the sales contract, complained to the seller’s real estate agent about the roof. The seller, a bank, instructed the real estate agent to have the roof inspected. After an inspection, the roofer informed the real estate agent that “comparing the cost of repairing the roof to what it would cost to reroof the house, it would be better to reroof the house entirely.” 519 So.2d at 494. The seller did not want to put a new roof on the house, but instead instructed the real estate agent to have minor repairs made. The buyer was not told that the roofer had stated that, considering the comparative costs, it would be better to reroof the house. The buyer also claimed that the real estate agent stated that the roof was in excellent condition. After moving into the house, the buyer discovered that the roof leaked. This Court — without citing Massey, which had been decided six months earlier — reviewed cases holding that a real estate agent has a duty to speak truthfully when responding to direct inquiries. Without discussing the import on its analysis of the “as is” language, this Court reversed the summary judgment in favor of the real estate agent, holding that jury questions existed as to whether the real estate agent’s failure to respond completely to the purchaser’s questions was a breach of her duty to disclose and whether the purchaser’s reliance on the real estate agent’s statements was reasonable. Boswell, 519 So.2d at 496. Neither the majority opinion nor the dissent in Leatherwood cites Boswell; neither does the opinion in Haygood.

We are unable to reconcile Boswell with Leatherwood, Haygood, and Massey. Even if we were sympathetic to Chief Justice Hornsby’s argument that an “as is” statement in a contract should not preclude a fraud claim, at least where such a claim is predicated on an affirmative misrepresentation by the seller or seller’s agent, the Moores do not ask us to overrule Haygood, Leatherwood, or Massey. In fact, the Moores do not cite any of these three cases, and no party cites Massey. Given the state of the briefs in this appeal, including the fact that the Lundys are acting pro se and that they have not filed a brief with this Court, and the fact that the Moores are a former real estate agent and an insurance adjuster with experience in evaluating water damage to houses, we decline on this occasion to revisit the rule from Haygood and Leatherwood, cases decided after Boswell, holding that “as is” language in a contract for the purchase of used residential real estate precludes a fraud claim. Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.

Furthermore, Rogers was also entitled to a summary judgment because the Moores presented no evidence indicating that Rogers knew that the house had any water problems. In fact, it is undisputed that the Lundys told Rogers that the house was in good condition and that Rogers was not aware of any water-related problems with the house. As previously noted, the general rule is that a real estate agent has no duty to disclose defects in used residential real estate. Blaylock, 709 So.2d at 1130; Cato, 630 So.2d at 882. However, “if the buyer specifically inquires about a material condition concerning the property, the seller has an obligation to disclose known defects.” Lisenby, 579 So.2d at 1294 (emphasis added). Because there is no evidence indicating that Rogers knew about the water problems, Rogers had no duty to disclose such defects, and she was entitled to a summary judgment.

Similarly, a real estate agent cannot be held liable for either fraud or negligence where the agent serves as a “conduit of information” between the seller and the buyer. Fisher, 772 So.2d at 468; Speigner v. Howard, 502 So.2d 367 (Ala.1987). In Fisher, this Court held that a real estate agent who told a buyer that the roof of a house was in good condition was not liable for fraud “ ‘for merely conveying the statements of [the seller] to the agent of the [plaintiffs]’ without evidence of bad faith.” 772 So.2d at 464 (quoting Speigner, 502 So.2d at 371). The uncontroverted evidence is that the Lundys told Rogers that the house had no water problems, and the Moores presented no evidence of bad faith on Rogers’s part.

There is no evidence indicating that any of the repairs called for by the two inspection reports were not made (except the addition of the fire wall), much less that Rogers knew that any of the repairs noted on the two inspection reports had not been made. The Moores have not produced either the missing inspection report or the list of requested repairs based on that inspection report. The Moores even state in their brief that “the undisputed evidence in this matter reveals that Rogers may not have been privy to [the] inspection.” The Moores’ argument appears to be that the missing inspection report might have indicated water problems with the house, and, if so, Rogers’s statement that all repairs had been made gave a false impression. However, this argument is purely speculative, because the Moores were unable to produce the missing inspection report.

We affirm the trial court’s summary judgment in favor of Rogers on all the fraudulent-suppression claims.

B. The Lundys

There remains the problem of the Lundys’ failure to move for a summary judgment. There is no basis in the record upon which to conclude that the trial court converted the Lundys’ two-year-old motion to dismiss into a motion for a summary judgment pursuant to Rule 12(b), Ala. R. Civ. P. Even if it had done so, the Moores would have been entitled to notice of the trial court’s intention to treat the motion to dismiss as a motion for a summary judgment. Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199 (Ala.1992).

Rule 56(c)(2), Ala. R. Civ. P., gives the nonmoving party certain rights to notice and a hearing after a summary-judgment motion has been filed. Rule 56(c)(2) states:

“The motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days’ notice with the consent of the parties concerned. Subject to subparagraph (f) of this rule, any statement or affidavit in opposition shall be served at least two (2) days prior to the hearing.”

We recently discussed the requirements of Rule 56(c)(2) in Van Knight v. Smoker, 778 So.2d 801 (Ala.2000).

“The Committee Comments to [Rule 78, Ala. R. Civ. P.,] state: ‘It is to be noted that the last sentence of the rule prohibits the granting of a Motion Seeking Final Judgment such as a Motion for Summary Judgment without giving the parties an opportunity to be heard orally.’ (Emphasis added [in Van Knight ].) Rule 56(c), Ala. R. Civ. P., itself entitles the parties to a hearing on a motion for summary judgment. Although, in certain limited circumstances, a trial court may rule on a motion for summary judgment without conducting a hearing, once the trial court has set a date for a hearing on the motion, the court must allow the nonmoving party an opportunity to be heard.
“One purpose of the procedural rights to notice and hearing under Rule 56(c) is to allow the nonmoving party the opportunity to discover and to present evidence opposing the motion for summary judgment. Although the nonmov-ing party may waive the requirements of notice and hearing, the ‘waiver requires knowledge, actual or implied, of the right being waived.’ In Tharp [v. Union State Bank, 364 So.2d 335 (Ala.Civ. App.1978)], the defendant attended a hearing conducted for the purpose of considering a motion to dismiss a counterclaim. However, at that hearing, the trial court also granted summary judgment in favor of the plaintiffs. The defendant objected to the entry of summary judgment on the ground that it was not aware that the summary-judgment motion would be discussed and decided at the hearing. The Tharp court held that ‘[t]his objection to the entry of summary judgment and the state of the record showing that ten days had not expired since even the certified date of service [of the motion for summary judgment] negates any claim of waiver.’ 364 So.2d at 338. The Tharp court noted that the plaintiffs argument that the defendant was not prejudiced against it was invalid because Rule 56 ‘is not prefaced upon whether or not the opposing party may successfully defend against summary judgment, [but] it does require that the opportunity to defend be given.’ Tharp, 364 So.2d at 338.”

778 So.2d at 805-06 (emphasis in final quoted paragraph added; footnote and citations omitted).

Because Rule 56 requires, at the least, that the nonmoving party be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it, the trial court violates the rights of the non-moving party if it enters a summary judgment on its own, without any motion having been filed by a party. Consequently, we reverse the trial court’s summary judgment in favor of the Lundys, entered without a motion filed by them or on their behalf.

TV. Conclusion

We reverse the judgment in favor of the Lundys and remand the case for further proceedings consistent with this opinion. We affirm the judgments in favor of the remaining defendants.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . At the time the Moores filed their second amended complaint, the trial court had already entered a summary judgment in favor of Prudential Residential and Prudential Homes on all of the Moores' claims against them. Even though the second amended complaint asserted breach-of-contract, negligence, and wantonness claims against Prudential Residential and Prudential Homes, the Moores acknowledged: "Defendants Prudential Residential Services and Prudential Homes have been granted a nonfinal judgment in this matter. The Moores specifically reserve the right to seek reinstatement of these defendants at such time as the evidence may reveal disputed issues of facts relating to the claims against these defendants under this amendment, the first amended complaint and the complaint heretofore filed in this action.”

        . Rule 28, Ala. R.App. P., was amended effective June 1, 2002. Before that amendment, Rule 28(a)(5) addressed a party’s failure to cite authority.


author: SEE, Justice.

text:
    Ex parte LAMAR ADVERTISING COMPANY, INC. (In re Lamar Advertising Company, Inc. v. Board of Zoning Adjustment of the City of Mobile).
    1010479.
    Supreme Court of Alabama.
    Sept. 13, 2002.
    David S. Conrad of Conrad & Barlar, Mobile, for petitioner.

      John L. Lawler, Mobile, for respondent.
   SEE, Justice.

Lamar Advertising Company, Inc. (“Lamar”), owns an outdoor advertising sign located on the southwest corner of Airport Boulevard and Azalea Road in Mobile. The sign was erected before 1994, when the City of Mobile adopted Zoning Ordinance No. IV, which regulates outdoor advertising signs. Lamar’s sign was thus “grandfathered” in as a nonconforming sign. The sign was nonconforming in that (1) it exceeded the allowed square footage; (2) it is located closer to other signs than is now allowed; and (3) it is located closer to a residential area than is now allowed. Section G.3.b. of Ordinance No. IV provides, in pertinent part, that a “nonconforming sign shall not be ... expanded.” If a nonconforming sign is expanded, the Land Use Department of the City of Mobile can require its removal.

After Ordinance No. IV was adopted, Lamar replaced the existing face on the sign with a “trivision sign face.” In June 1999, the Land Use Department sent Lamar a notice directing Lamar either to remove the sign or to get a variance for it. In the notice, the Department told Lamar that the trivision sign face constituted an improper “expansion” under Ordinance No. IV.G.3.b. The expansion complained of by the Department was either (1) that the trivision aspect of the sign resulted in the sign’s having more than the 672 square feet of display space that had been grandfathered in when the ordinance took effect, or (2) that the turning motor itself expanded the size of the sign.

Lamar appealed the decision of the Land Use Department to the Board of Zoning Adjustment of the City of Mobile. Lamar argued to the Board that although it was not sure when the sign was erected, it was erected before the Board passed the pertinent ordinance. Lamar argued that the trivision sign face was not larger than the traditional sign face had been, and that, therefore, the sign was a modernization, not an expansion. Lamar argued in its brief to this Court that after the “installation of the trivision face, the square footage of the face, the spacing of the sign, and the placement of the sign all remain unchanged.” The Board denied Lamar’s appeal. Lamar appealed the Board’s decision to the trial court, which affirmed the Board’s decision. The Court of Civil Appeals, pursuant to Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P., affirmed the trial court’s order without an opinion. Lamar Advertising Co. v. Board of Zoning Adjustment of Mobile, (No. 2000458, Sept. 14, 2001) 841 So.2d 318 (Ala.Civ.App.2001)(table). This Court granted Lamar’s petition for the writ of certiorari. We reverse and remand.

The trial court heard this case in a bench trial. Where evidence is presented to the trial court ore tenus, we presume that the court’s conclusions on issues of fact are correct, and we will not disturb them unless they are clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness attaches to the court’s judgment. Gaston, supra; Smith v. Style Adver., Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978).

This Court recognizes “that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.” Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000). However, a city ordinance is subject to the same general rules of construction as is an act of the Legislature. S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala.1987), set out the following general rule of statutory construction, which applies to the construction of a municipal ordinance:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978).’ ”

In Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999), this Court stated:

‘“When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.’ Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998):
“ ‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’ ”

Merriam-Webster’s Collegiate Dictionary (10th ed.1997) includes among its definitions of “expand” the following: “to increase the extent, number, volume, or scope of: enlarge.” The sign at issue here was not “enlarged.” The Board argues that the trivision sign is an expansion either because a motor connected to the sign constitutes an expansion or because the ability to display three different advertisements constitutes an expansion. We disagree.

The motor connected to the sign does not enlarge the sign; it does not increase the extent, number, volume, or scope of the sign. Lamar’s vice president and general manager, Troy Tatum, testified at trial that the trivision sign, including the motor, occupied the same physical space as the original sign occupied.

Finally, the fact that the new technology embodied in the trivision sign allows the sign to be changed to display three different advertisements in a short period does not make the trivision sign an expansion of the original nonconforming sign. The speed with which advertisements can be changed does not increase the extent — the sign face remains 672 square feet; the number — it is a single sign; the volume— it occupies the same amount of physical space as the original sign; or the scope of the sign. The fact that the number of different advertisements that can be displayed during a certain period has increased does not mean that the sign itself has been expanded.

Accordingly, we reverse the judgment of the Court of Civil Appeals and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The advertisement on a traditional sign face has to be changed manually; therefore, it takes a crew half an hour to change the sign face. As a practical matter, that meant that a single sign face was presented to the public, usually for several weeks or months, depending on the lease period. A trivision sign face allows automatic changing of the sign face, thus making it possible to present up to three advertisements during a relatively short period by automatically changing the sign face, for example, every 20 seconds on a rotating basis. The square footage of the original sign face was 672 square feet of display; the new sign face remained at 672 square feet displayed. However, the new sign face contained three advertisements and changed periodically to reveal each advertisement.

      . At trial, Lamar’s vice president and general manager, Troy Tatum, stated that the sign was erected in 1967.

      . The purchaser of an automobile may choose the option of power windows. The motor that operates the windows does not "enlarge” the car.


author: THOMPSON, Judge.

text:
    LAMAR ADVERTISING COMPANY, INC. v. BOARD OF ZONING ADJUSTMENT OF THE CITY OF MOBILE.
    2000458.
    Court of Civil Appeals of Alabama.
    Oct. 25, 2002.
    David S. Conrad of Conrad & Barlar, Mobile, for appellant.
    John L. Lawler of Finkbohner, Lawler & Ray, L.L.C., Mobile, for appellee.
   After Remand from the Alabama Supreme Court

THOMPSON, Judge.

On September 14, 2001, this court, affirmed the trial court’s judgment, without an opinion. 841 So.2d 318 (Ma.Civ.App.2001) (table). The Supreme Court of Mabama has reversed this court’s judgment and remanded the cause. Ex parte Lamar Advertising Co., 849 So.2d 928 (Ala.2002). In compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

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