author: COBB, Chief Justice.

text:
    Hoyt Randall EDWARDS, Jr., and Edwards Motors, Inc. v. Mark Wayne COSTNER and Matthew W. Kimbril.
    1060099.
    Supreme Court of Alabama.
    Aug. 17, 2007.

      M. Andrew Donaldson and Mindi C. Robinson of Slaten & O’Connor, P.C., Montgomery, for appellants.
    Joshua L. Firth and Steven W. Couch of Hollis & Wright, Birmingham, for appel-lees.
   COBB, Chief Justice.

Hoyt Randall Edwards, Jr., and Edwards Motors, Inc., appeal the Etowah Circuit Court’s denial of their motion to compel arbitration of claims brought against them by Mark Wayne Costner and Matthew W. Kimbril. We affirm in part, reverse in part, and remand.

I. Background

On November 23, 2004, Kimbril purchased a 1993 Ford Probe GT automobile from Edwards Motors. In conjunction with Kimbril’s purchase of the Ford Probe, Edwards Motors and Kimbril entered into a predispute arbitration agreement, which provided:

“In connection with the undersigned’s acquisition or attempted acquisition of the below described vehicle, by lease, purchase or otherwise, the undersigned and [Edwards Motors] stipulate and agree, in connection with the resolution of any dispute arising out of, relating to, resulting from or concerning all alleged representations, promises and covenants, and arising out of, relating to, resulting from or concerning the contracts) and agreements entered into by the parties and relationships resulting therefrom as follows: That the manufacture, transportation, sale and use of the below described vehicle is regulated by laws of the United States of America: and, that the contract(s) and agreements entered into by the parties concerning said vehicle evidence transactions substantially involving and affecting interstate commerce sufficiently to invoke the application of the Federal Arbitration Act, 9 U.S.C. § 1, et seq. The undersigned agree that all disputes not barred by applicable statutes of limitations, resulting from or arising out of or relating to or concerning the transaction entered into or sought to be entered into (including but not limited to: any matters taking place either before or after the parties entered into this agreement, including any prior agreements or negotiations between the parties; the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties; the past, present and future condition of the vehicle at issue; the conformity of the vehicle to any contract description; the representations, promises, undertakings, warranties or covenants made by [Edwards Motors], or otherwise dealing with the vehicle; any lease terms or the terms of credit and/or financing in connection therewith; any terms or provisions of any insurance sought to be purchased or purchased simultaneously herewith; any terms or provisions of any extended service contract sought to be purchased or purchased simultaneously herewith; and all claims or disputes as to any body and/or mechanical repair heretofore made, now or hereafter made to the vehicle) shall be submitted to BINDING ARBITRATION, pursuant to the provisions of 9 U.S.C. § 1, et seq., and according to the Commercial Dispute Resolution Procedures and/or Consumer Protocol (depending on the amount in controversy) of the American Arbitration Association (the AAA) then existing in the County where [Edwards Motors] maintains its principal place of business, except as follows: (a) In all disputes in which the matter in controversy (including compensatory and punitive damages and fees and costs) is more than $10,000 but less than $75,000.00, the parties shall arbitrate in accordance with the AAA’s Consumer Protocol. In all disputes in which the matter in controversy (including compensatory and punitive damages and fees and costs) is $75,000.00 or more, [Edwards Motors] and the customers shall select one arbitrator from a list of at least 5 suitable arbitrators supplied by the AAA in accordance with and utilizing the AAA strike method, (b) An arbitrator so selected shall be empowered to enter an award of such damages, fees and costs, and grant such other relief, as said arbitrator or arbitrators deem[] just and proper. Any party to this agreement who fails or refuses to arbitrate in accordance with the terms of this agreement shall, in addition to any other relief awarded, be taxed by the arbitrator or arbitrators with the costs, including reasonable attorney’s fees, of any other party who had to resort to judicial or other relief in compelling arbitration. In the event [Edwards Motors] and the undersigned have entered into more than one arbitration agreement concerning any of the matters identified herein, the undersigned and [Edwards Motors] agree that the terms of this arbitration agreement shall control disputes between them. Any provision in this Agreement found to be in conflict with any procedure promulgated by the AAA which shall affect its administration of disputes hereunder shall be considered severed herefrom. With respect to the process of arbitration under the AAA Commercial Rules or Consumer Protocol, the undersigned and [Edwards Motors] expressly recognize that the rules and protocol and the terms of this agreement adequately protect their abilities to fully and reasonably pursue their respective statutory and other legal rights. NOTE: This agreement is not intended to require arbitration of disputes brought by any party to this agreement in the state district courts of Alabama, provided that the relief sought therein or as a result thereof, including compensation and punitive damages and fees and costs, does not exceed $10.000.00. The parties stipulate that either party’s participation in proceedings in Alabama state district courts shall not operate as a waiver of any right to compel binding arbitration upon appeal from said district courts. This agreement shall survive any termination, cancellation, fulfillment or non-fulfillment of any other contract, covenant or agreement related to the vehicle described below, including, but not limited to cancellation due to lack of acceptable financing or funding of any retail installment contract or lease. Any provision herein found to adversely affect the enforcement of this agreement shall be considered severed from the remaining provisions herein, provided that such severance does not prevent the arbitration of the disputes described herein. Further information about arbitration can he obtained directly from the AAA, Atlanta, Georgia, by calling the AAA at 404/_-_ or from a review of AAA’s Commercial Dispute Resolution Procedures and Consumer Protocol, a copy of which is available without charge for review from the AAA. THE UNDERSIGNED HAVE AGREED TO WAIVE THE UNDERSIGNED[’S] RIGHT TO A TRIAL BY JUDGE OR JURY IN ALL DISPUTES OVER $10,000.00 AND THAT ARBITRATION SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT AND IN LIEU OF ANY TRIAL BY JUDGE OR JURY FOR ALL CLAIMS OVER $10,000.00. THE TERMS OF THIS AGREEMENT AFFECT YOUR LEGAL RIGHTS. IF YOU DO NOT UNDERSTAND ANY PROVISION OF THIS AGREEMENT OR THE COSTS, ADVANTAGES OR DISADVANTAGES OF ARBITRATION, SEEK INDEPENDENT ADVICE AND/OR REVIEW THE WRITTEN CONSUMER AND/OR COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND PROTOCOLS AND/OR CONTACT THE AAA AT THE TELEPHONE NUMBER SHOWN ABOVE BEFORE SIGNING. BY SIGNING YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY EACH OF THE PROVISIONS, COVENANTS, STIPULATIONS AND AGREEMENTS SET FORTH AND REFERENCED HEREINABOVE.”

(Capitalization in original.) The agreement was signed by Kimbril and a representative of Edwards Motors.

On November 26, 2004, the brakes on the Ford Probe purportedly failed while Costner was driving, causing the Probe to run into a brick wall. Kimbril was a passenger in the vehicle. Both Costner and Kimbril were injured as a result of the accident. Costner and Kimbril sued Edwards and Edwards Motors, alleging that the brakes had not been repaired before Kimbril purchased the vehicle, that Edwards and Edwards Motors had fraudulently misrepresented to Kimbril that the brakes had been repaired or replaced, that Edwards Motors had breached the terms of the sales contract by not replacing the brakes, and that Edwards and Edwards Motors had failed to warn Kimbril that the brakes were not working properly and that the brakes had not been replaced or repaired. Costner and Edwards sought a judgment in a sum in excess of the exclusive jurisdictional limits of the circuit court, i.e., $10,000. See § 12-11-30(1), Ala.Code 1975. Edwards and Edwards Motors moved the trial court to compel arbitration and to stay the proceedings pending arbitration; the trial court denied the motion. Edwards and Edwards Motors appealed.

II. Standard of Review

We review de novo the trial court’s grant or denial of a motion to compel arbitration. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala.2003). Initially, the party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala.2003). The moving party “must ‘ “produce some evidence which tends to establish its claim.” ’ ” Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala.2003)(quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 (Ala.1995), quoting in turn In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.1994)). Once the moving party has properly supported his or her motion to compel arbitration, the burden then shifts to the nonmovant to present evidence tending to show that the arbitration agreement is invalid or inapplicable to the case. Polaris Sales, 879 So.2d at 1132.

III. Analysis

Neither party disputes the existence of a contract calling for arbitration; the dispute here centers on whether the underlying transaction involves interstate commerce. Edwards and Edwards Motors argue that the trial court erred in refusing to enforce the arbitration agreement between Edwards Motors and Kimbril because, they say, the underlying transaction involved interstate commerce. Kim-bril and Costner, on the other hand, argue that Edwards and Edwards Motors failed to present sufficient evidence in support of or accompanying their motion to compel arbitration to prove the required nexus between the transaction and interstate commerce.

Previously, this Court has noted:

“The FAA [Federal Arbitration Act] ‘provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause.” ’ Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). The Supreme Court of the United States has held that Congress’s Commerce Clause power may reach a transaction even if the individual transaction at issue does not have a ‘substantial effect’ on interstate commerce if ‘in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” ’ 539 U.S. at 56-57, 123 S.Ct. 2037 (quoting Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948)). Thus, the FAA is applicable to transactions (1) that use the channels of interstate commerce, (2) that involve the instrumentalities of interstate commerce, or persons or things in interstate commerce, or (3) that involve general activities having a substantial effect on interstate commerce. See Wolff Motor Co. [v. White], 869 So.2d [1129,] 1132 [ (Ala.2003) ] (identifying three broad categories of activity Congress can regulate under its commerce power). Evidence that a party to a transaction does business outside of Alabama or that it regularly deals in interstate commerce is sufficient to demonstrate that the transaction involves interstate commerce. See Wolff Motor Co., 869 So.2d at 1133-34, 1133 n. 4 (stating in a footnote that any of the reasons set forth in Alafabco — or that the parties regularly deal in interstate commerce as in Wolff Motor Co.—standing alone is sufficient for the application of the FAA and pointing out that the Supreme Court of the United States in Alafabco held that the FAA applied to the transaction there because a party in that case was doing business throughout the southeastern United States).”

McKay Bldg. Co. v. Juliano, 949 So.2d 882, 885 (Ala.2006). It is unquestionable that the sale of an automobile, either new or used, “use[s] the channels of interstate commerce,” “involve[s] ... things in interstate commerce,” and “involve[s] general activities having a substantial effect on interstate commerce.” McKay Bldg. Co., 949 So.2d at 885. See also Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So.2d 287, 292 (Ala.2004) (“This Court has previously recognized that the purchase of a used automobile from an automobile dealer was a transaction that involved interstate commerce.”).

In addition, we have previously stated in Huntsville Utilities v. Consolidated Construction Co., 876 So.2d 450 (Ala.2003), and in Wolff Motor Co., supra, that the movant need not prove that the individual transaction at issue substantially affects interest commerce. “In fact, the [Federal Arbitration Act] can be applicable in a case ‘without showing any specific effect [of the individual transaction] upon interstate commerce.’ ” McKay Bldg. Co., 949 So.2d at 886 (quoting Citizens Bank v. Alafabco, 539 U.S. 52, 56-57, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003)). Edwards and Edwards Motors submitted Edwards’s affidavit in support of the motion to compel arbitration; that affidavit stated, in pertinent part:

“In addition to Matthew Kimbril agreeing that the [sic] ‘that the contract(s) and agreements entered into by the parties concerning said vehicle evidence transactions substantially involving and affecting interstate commerce sufficiently to invoke the application of the Federal Arbitration Act, 9 U.S.C. § 1 et seq.’ by signing the above quoted arbitration language[,] Edward Motorsf] business further substantially affects interstate commerce in that it routinely sells cars that are manufactured, distributed in other states and transported across state lines to Gadsden, Alabama. Further, financing obtained for various customers occurs with financial institutions that are in other states than Alabama and communications with said financial institutions occur across phone lines, mail and other means that cross state lines.”

“We also note that the burden on [the movant] is to provide ‘ “ ‘some evidence which tends to establish its claim.’ ” ’ ” McKay Bldg. Co., 949 So.2d at 886 (quoting Wolff Motor Co., 869 So.2d at 1131, quoting in turn Jim Burke Auto., 674 So.2d at 1265). Edwards and Edwards Motors have provided an affidavit stating that the vehicles sold by Edwards Motors are transported across state lines, that financing obtained for its customers often comes from financial institutions outside Alabama, and that communication with those financial institutions occurs via interstate telecommunication lines and the United States Postal Service. When Edwards and Edwards Motors submitted Edwards’s affidavit, they made a prima facie showing that the transaction involved interstate commerce. The burden then shifted to Costner and Kimbril to produce evidence indicating that the arbitration agreement was invalid or that it is inapplicable. Polaris Sales, 879 So.2d at 1132. Costner and Kimbril argued instead that Edwards’s affidavit was insufficient to establish a nexus between the transaction and interstate commerce because, they said, the affidavit failed to comply with Rule 56(e), Ala. R. Civ. P. In other words, they argue that Edwards’s affidavit was procedurally deficient.

Costner and Kimbril argue that the affidavit references out-of-state financial institutions and communications with those financial institutions, yet includes no documents evidencing communications with the out-of-state financial institutions. “ ‘ “A motion to compel arbitration is analogous to a motion for summary judgment.” ’ ” Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 2 (Ala.2007) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000), quoting in turn Jim Burke Auto., 674 So.2d at 1265 n. 1). Rule 56(e), Ala. R. Civ. P., which sets forth the requirements for affidavits supporting and opposing motions for summary judgment, states, in pertinent part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Edwards’s affidavit is based on his personal knowledge. He mentions Edwards Motors’ communications with out-of-state institutions in order to establish that Edwards Motors conducts business in interstate commerce. Proof of the actual communications, i.e., copies of letter and telephone bills, is not required. See, e.g., Dan Wachtel Ford, 891 So.2d at 292 (holding that statement from defendant corporation that it had contacted out-of-state corporations in attempt to obtain financing for plaintiff was sufficient to establish that transaction involved interstate commerce). It should further be noted that Edwards established a nexus with interstate commerce by testifying in his affidavit that some, if not all, of the vehicles sold by Edwards Motors had traveled across state lines. Even without the evidence of communications with out-of-state institutions Edwards has established that the Federal Arbitration Act is applicable.

We therefore conclude that the evidence establishes that the transaction in this case involves interstate commerce; thus, the Federal Arbitration Act applies. Therefore, the trial court erred in not granting Edwards and Edwards Motors’ motion to compel arbitration as it related to the claims brought by Kimbril.

The same, however, does not hold true for the claims brought by Costner. It is undisputed that Costner did not sign the arbitration agreement. “Generally, ‘a nonsignatory to an arbitration agreement cannot be forced to arbitrate [his] claims.’ ” Edward D. Jones & Co. v. Ventura, 907 So.2d 1035, 1042 (Ala.2005) (quoting Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001)). However, arbitration agreements may be enforced against a nonsignatory third party under either a third-party-beneficiary theory or an intertwined-claims theory.

A nonsignatory can be bound to an arbitration agreement when the nonsig-natory is an intended third-party beneficiary of the contract containing the arbitration agreement. “[I]n order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties.” Locke v. Ozark City Bd. of Educ., 910 So.2d 1247, 1251 (Ala.2005). Edwards and Edwards Motors did not argue to the trial court or to this Court that Costner was an intended third-party beneficiary at the time the arbitration agreement was signed, nor is there evidence in the record indicating that that is the case. Thus, the third-party-beneficiary exception is not applicable.

In the alternative, Edwards and Edwards Motors argue that Costner should be compelled to arbitrate his claims under the intertwined-claims theory. Intertwining is “where nonarbitrable claims are considered so intimately founded in and closely related to claims that are subject to the arbitration agreement that the party opposing arbitration is equitably es-topped to deny the arbitrability of the related claims.” Ex parte Tony’s Towing, Inc., 825 So.2d 96, 97 (Ala.2002). This exception is applicable when a nonsignato-ry to the arbitration agreement attempts to claim the benefit of the arbitration agreement and to compel a signatory to arbitrate claims involving the signatory and nonsignatory. See, e.g., Lewis v. Oakley, 847 So.2d 307 (Ala.2002); Ex parte Napier, 723 So.2d 49 (Ala.1998). It is not applicable, however, when a signatory attempts to compel a nonsignatory third party to arbitrate claims it may have against a signatory. This Court explained the rationale for this distinction in Ex parte Tony’s Towing:

“We have heretofore addressed the doctrine of intertwining in situations where a nonsignatory to an arbitration agreement seeks arbitration over the objection of the signatory. In this case a signatory to the arbitration agreement seeks arbitration over the objection of the nonsignatory. [The signatory] argues that what is ‘sauce for the goose, is sauce for the gander.’ In other words, she argues that if a nonsignatory can compel a plaintiff to arbitrate, then denying the plaintiff the right to compel a nonsignatory defendant to arbitrate is unfair. However, this argument skips over the critical and essential element of estoppel as the basis for the theory of intertwining. Here, [the nonsignatory] has never agreed to arbitrate anything and, therefore, it is not estopped from avoiding arbitration.
“This very point was recently addressed in E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187 (3d Cir.2001), where the United States Court of Appeals for the Third Circuit noted that one of the theories relied upon to obtain arbitration was that ‘courts have bound a signatory to arbitrate with a non-signatory “at the non-signatory’s insistence because of ‘the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory’s obligations and duties in the contract ... and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations.’ ” ’ 269 F.3d at 199 (quoting Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993)) (quoting in turn McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984)). The Third Circuit then held:
“ ‘With reference to the second theory of equitable estoppel, appellants rely on a series of cases in which signatories were held to arbitrate related claims against parent companies who were not signatories to the arbitration clause. In each of these cases, a signatory was bound to arbitrate claims brought by a non-signatory because of the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the non-signatory’s obligations and duties in the contract and the fact that the claims were intertwined with the underlying contractual obligations....
“ ‘Appellants recognize that these cases bind a signatory not a non-signatory to arbitration, but argue that this is a distinction without a difference. They are wrong.
‘Indeed, the Second Circuit recently rejected the same “distinction without a difference” argument:
“ ‘ “As these cases indicate, the circuits have been willing to estop a signatory from avoiding arbitration with a nonsignatory when the issues the nonsignatory is seeking to resolve in arbitration are intertwined with the agreement that the estopped party has signed. As the district court pointed out, however, ‘[t]he situation here is inverse: E & S, as signatory, seeks to compel Thomson, a non-signatory.’ While E & S suggests that this is a non-distinction, the nature of arbitration makes it important. Arbitration is strictly a matter of contract; if the parties have not agreed to arbitrate, the courts have no authority to mandate that they do so. In the line of cases discussed above, the courts held that the parties were estopped from avoiding arbitration because they had entered into written arbitration agreements, albeit with the affiliates of those parties asserting the arbitration and not the parties themselves. Thomson, however, cannot be estopped from denying the existence of an arbitration clause to which it is a signatory because no such clause exists. At no point did Thomson indicate a willingness to arbitrate with E & S. Therefore, the district court properly determined these estoppel cases to be inapposite and insufficient justification for binding Thomson to an agreement that it never signed.”
‘Thomsom-CSF, S.A [v. American Arbitration Ass’n], 64 F.3d [773] at 779 [ (2d Cir.1995) ] (internal citations omitted).’
269 F.3d at 201-02 (some emphasis original; some emphasis added) (footnotes omitted). [The signatories attempting to compel arbitration] are therefore not in a position to insist that [the nonsignatory] submit to arbitration based upon the doctrine of intertwining.”

825 So.2d at 98-99 (emphasis in original). See also Clement Contract. Group, Inc. v. Coating Sys., L.L.C., 881 So.2d 971 (Ala.2003), and Hill v. National Auction Group, Inc., 873 So.2d 244 (Ala.Civ.App.2003).

“ ‘[B]oth federal and state courts have consistently held that the duty to arbitrate is a contractual obligation and that a party cannot be required to submit to arbitration any dispute that he did not agree to submit. The language of the contract entered into by the parties determines whether a particular dispute should be submitted to arbitration....’”

UBS Fin. Servs., Inc. v. Johnson, 943 So.2d 118, 121 (Ala.2006) (quoting Capital Inv. Group, Inc. v. Woodson, 694 So.2d 1268, 1270 (Ala.1997)). We cannot compel Costner to arbitrate his claims against Edwards and Edwards Motors “without rewriting or, indeed, creating a contract calling for arbitration where none exists.” Ex parte Tony’s Towing, 825 So.2d at 99. Therefore, we affirm the trial court’s order insofar as it denies Edwards and Edwards Motors’ motion to compel arbitration of Costner’s claims against them.

IV. Conclusion

Because Costner was not a signatory to the arbitration agreement between Kim-bril and Edwards Motors and was not an intended third-party beneficiary, the trial court’s order denying Edwards and Edwards Motors’ motion to compel arbitration of Costner’s claims is due to be affirmed. However, the trial court erred in denying Edwards and Edwards Motors’ motion to compel arbitration of Kimbril’s claims because the sale of the 1993 Ford Probe and the regular business of Edwards Motors involves interstate commerce. Therefore, we reverse the Etowah Circuit Court’s order insofar as it denies the motion to compel arbitration as to the claims brought by Kimbril, and we remand the cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, STUART, BOLIN, and MURDOCK, JJ., concur.

      . Although Costner and Kimbril refer to the vehicle as a 1997 Ford Probe, documentation in the record indicates that the Ford Probe was a 1993 model vehicle.


source: Caselaw Access Project

author:
PER CURIAM. PARKER, Justice
      MURDOCK, Justice

license: Public Domain

text:
    CLEBURNE COUNTY COMMISSION et al. v. Jack E. NORTON.
    1060135.
    Supreme Court of Alabama.
    Aug. 17, 2007.

      Bart Harmon and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, and M. Douglas Ghee of Ghee & Draper, Anni-ston, for appellants.
    John S. Casey of Casey, Casey & Casey, Heflin, for appellee.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for amicus curiae Alabama Sheriffs’ Association, in support of the appellee.
   PER CURIAM.

The Cleburne County Commission and commissioners Ryan Robertson, Bobby Brooks, Tracy Lambert, Dwight Williamson, and Joel Robinson (hereinafter collectively referred to as “the Commission”) appeal from a summary judgment entered by the Cleburne Circuit Court in favor of Jack E. Norton, a supernumerary sheriff in Cleburne County. In entering the summary judgment, the trial court held §§ 11-2A-1 through -8, Ala.Code 1975, unconstitutional and ordered the Commission to pay Norton “all salary adjustments, cost of living expenses or other salary increases as the remuneration of the Sheriff of Cle-burne County, Alabama, has increased since the year 2000 as provided by § 36-22-62(a) and (b), Ala.Code 1975.” We reverse and remand.

I. Background

The facts are undisputed. On April 2, 1992, Norton, who had previously served as the sheriff of Cleburne County, notified then Governor Guy Hunt and Cleburne County Probate Judge Mac Smith of his election to participate in the supernumerary sheriffs’ program as provided in § 36-22-60 et seq., Ala.Code 1975. On April 8, 1992, Governor Hunt notified Norton of his appointment as supernumerary sheriff of Cleburne County effective April 10, 1992, and on April 20, 1992, Probate Judge Smith administered the oath of office to Norton.

On January 10, 1987, while he was serving as sheriff, Norton had paid $7,500 to Cleburne County to purchase prior service credit pursuant to § 36-22-63, Ala.Code 1975. Thereafter, until his retirement as sheriff of Cleburne County, an amount equal to six percent of his salary was deducted from Norton’s salary in accordance with § 36-22-61, Ala.Code 1975.

After Norton was appointed as supernumerary sheriff, he received the prescribed salary of a supernumerary sheriff. Section 36-22-62(a), Ala.Code 1975, provides, in pertinent part, that a supernumerary sheriff “shall be entitled to receive an amount equal to 50 percent of the monthly salary paid such person at the time of the completion of his service in office, and shall be entitled to receive an additional amount equal to two percent of such person’s said monthly salary for each additional year of service up to a maximum of 65 percent of such monthly salary....” In addition, § 36-22-62(b), Ala.Code 1975, provides:

“Those persons eligible under either subdivisions (1) or (2) of Section 36-22-60, that may elect to become a supernumerary sheriff shall be entitled to receive a cost-of-living increase as the remuneration of the office of sheriff increases from which the supernumerary sheriff elected to vacate. Said cost-of-living increase shall be equal to the percentage allowed said supernumerary sheriff of the present sheriffs remuneration.”

During its 2000 Regular Session, the Alabama Legislature enacted Act No. 2000-108, which is codified at §§ 11-2A-1 through -8, Ala.Code 1975. Section 11-2A-2 provides, in pertinent part:

“Effective October 1, 2000, the annual compensation which a county shall pay to a county commissioner, a judge of probate, a sheriff, a tax assessor, a tax collector, a revenue commissioner, a license commissioner, and an elected assistant tax assessor or collector shall be as set out below:
“(1) SHERIFF. The annual minimum compensation for each sheriff shall be fifty thousand dollars ($50,-000) which shall be in lieu of any salary and expense allowance currently provided to a sheriff receiving total compensation less than the minimum. Beginning with the next term of office for each sheriff, except as provided in Section 11-2A-4, the salary herein provided shall be the minimum compensation payable to the sheriff in lieu of any salary, expense allowance, or other compensation provided by law.
“(4) Any laws to the contrary notwithstanding, no person holding supernumerary office shall be entitled to any increases in compensation or expenses as a result of the implementation of any salary adjustments provided for in this chapter.”

The Cleburne County Commission has denied Norton salary adjustments since June 1, 2000, the effective date of Act No. 2000-108, based on § ll-2A-2(4).

In 2005, Norton filed an action in the Cleburne Circuit Court, seeking a judgment declaring § ll-2A-2(4) unconstitutional and ordering the County to pay him all salary increases he argues are due him under § 36-22-62(b) since 2000. Norton submitted to the Commission a request for admission of facts, and the Commission failed to respond within 30 days; thus the facts were deemed admitted pursuant to Rule 36, Ala. R. Civ. P. Based on the admitted facts, Norton filed a motion for a summary judgment, which the trial court granted on September 29, 2006. The Commission appeals.

II. Standard of Review

“We review a summary judgment de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and that the mov-ant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘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.’ West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004).

III. Analysis

In its summary-judgment order, the trial court found as follows:

“Act 2000-108, codified as Section 11-2A-1 through -8, Code of Alabama, 1975, as amended, contravenes Section 22 of the Constitution of Alabama of 1901, and is unconstitutional as it applies to [Norton] in that [Norton] had a solemn binding contract with the [Commission] when he was appointed supernumerary sheriff on April 10, 1992, under the provisions of Section 36-22-60, Code of Alabama, 1975, and is entitled to the salary provided in Section 36-22-62(a) and is further entitled to the salary adjustments as provided in Section 36-22-62(b) of the Code.”

The Commission asserts that the trial court erred in declaring §§ 11-2A-1 through -8 unconstitutional because, it argues, no “solemn binding contract” existed between Norton and the Commission. Norton, however, argues that the supernumerary-sheriff program is a thinly disguised retirement plan to which he contributed as well as purchased prior service credit and in which he has a vested interest. Therefore, he contends that §§ 11-2A-1 through -8 violate Art. I, § 22, Ala. Const, of 1901, which states that no law may be enacted impairing the obligations of a contract.

In Johnson v. Board of Control of Employees’ Retirement System of Alabama, 740 So.2d 999 (Ala.1999), Justice Shores detailed the history of supernumerary officials in Alabama:

“By constitutional provision, Alabama has historically denied the legislature the authority to provide for retirement benefits for state officers, including, by implication, judges. This restriction on the legislative power is currently found in Article IV, § 98, of the Alabama Constitution of 1901:
“ ‘The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer.’
“This constitutional prohibition against providing pensions for state officials led to legislation over the years creating supernumerary positions for certain state officials who met the statutory requirements for such positions. These statutes creating supernumerary positions were enacted to compensate certain public officials who had served the state for a number of years (as prescribed by statute) and who had reached a certain age (also prescribed by statute), provided that the official entering upon the supernumerary office performed certain duties prescribed by the legislature. See James v. Thompson, 392 So.2d 1178 (Ala.1981). Because Article IV, § 98, of the constitution prohibited laws granting retirement benefits to such state officials, the validity of these statutes depended upon the fact that these supernumerary officials performed certain duties and responsibilities [related to] the supernumerary office created. Although these statutes may have been drafted deliberately to evade the constitutional prohibition against legislation granting retirement pay to state officials, it is clear that the compensation provided was in exchange for services performed by the supernumerary officials, as opposed to compensation for past service to the state.
“For example, by Act No. 357, Ala. Acts 1979 (§ 36-22-60 et seq., Ala.Code 1975), the legislature created the office of supernumerary sheriff. This act permitted a sheriff who had served for at least 16 years in law enforcement, 12 as sheriff, and who had reached 55 years of age to elect to become a supernumerary sheriff, subject to call to active duty by the Governor.”

740 So.2d at 1003.

As the Court of Civil Appeals has noted: “The law in Alabama is clear that a supernumerary plan is not a retirement plan.” Board of Control of Employees’ Ret. Sys. of Alabama v. Hadden, 854 So.2d 1165, 1168 n. 4 (Ala.Civ.App.2002). This Court has further explained:

“The legislature, in creating a supernumerary program for elected sheriffs in Alabama, necessarily created the office of supernumerary sheriff. Although the duties of such office are limited in scope and the performance of such duties [is] contingent and narrowly defined, the statutorily prescribed position and function of a supernumerary sheriff is that of a public office — an ‘office of trust [and] profit. ’ Otherwise, the compensation provisions of [Act No. 79-357] clearly would run afoul of § 98 of our State Constitution, which proscribes any legislative grant of retirement pay to public officers.
“Moreover, our disposition of the instant appeal is aided by the literal meaning of the word ‘supernumerary.’ The word is derived from two Latin words— super, above or beyond; and numerus, a number. Thus, these two words, when used in combination and translated, mean exceeding a prescribed number. The legislative employment of this term, as a means of providing compensation to public officials conditioned upon age and length of service, created an office of public trust with duties and responsibilities concomitant with its purpose and design. While its members are above and beyond the numbers prescribed for active sheriffs, and its duties are limited and contingent by its nature, its character is not reduced to something less than that of a public office. Indeed, the Act provides that each supernumerary sheriff shall take the oath of office prescribed for sheriffs.”

James v. Thompson, 392 So.2d 1178, 1180 (Ala.1981) (some emphasis added). Because a supernumerary sheriff holds an “office of trust [and] profit,” Norton’s remuneration for serving as supernumerary sheriff cannot be considered retirement pay. Thus, Norton’s argument that the supernumerary-sheriff program is in essence a retirement plan in which he has a vested contractual interest fails.

We next address the question of whether the legislature may enact legislation limiting the compensation of a State official without impairing the obligation of contract as guaranteed by the Ala. Const, of 1901, i.e., whether the enactment of §§ 11-2A-1 through -8 contravenes Art. I, § 22, Ala. Const, of 1901, which provides “[t]hat no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment.”

Our consideration of this issue must begin with the observation that this Court gives great deference to the acts of the legislature.

‘[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ ”

Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000) (quoting Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944)).

Previously, this Court has noted that “the salary of a public officer is not a contract, and that the office, if statutory, may be abolished without infringing upon the rights of the officer.” Downs v. City of Birmingham, 240 Ala. 177, 183, 198 So. 231, 235 (1940). Further, this Court held in City of Birmingham v. Penuel, 242 Ala. 167, 174, 5 So.2d 723, 728 (1942):

“The rule enunciated by this court in Dale v. Governor, [3 Stew. 387 (Ala.1831) ]; Benford v. Gibson, [15 Ala. 521 (1849) ]; [and] Helms v. Alabama Pension Commission, [231 Ala. 183, 163 So. 807 (1935)], was recently affirmed in Downs v. City of Birmingham, 240 Ala. 177, 186, 198 So. 231 [ (1940) ], and the holdings are to the effect that the legislature may, without impairing the obligation of contract, reduce the compensation of an official who is capable of and willing to devote all of his energy and time to the performance of his statutory duties.”

Because the salary of a public officer is not based upon a contract and the legislature may therefore limit or reduce such salary without violating § 22, it follows that §§ 11-2A-1 through -8, Ala.Code 1975, are not unconstitutional as an impairment of contractual rights.

We further note that the statutes creating the office of supernumerary sheriff and providing for the salary of the office, § 36-22-60 et seq., were enacted by the legislature in 1979 and were amended in 1982. The statutes upon which the Commission relies — §§ 11-2A-1 through -8 — were enacted by the legislature in 2000. “ ‘The well-settled principle is that the last expression of the legislative will is the law in case of conflicting provisions of the statute on the same subject, and the last enacted in point of time prevails.’ ” State v. Gaines, 932 So.2d 118, 122 (Ala.Crim.App.2004) (quoting Middleton v. General Water Works & Elec. Corp., 25 Ala.App. 455, 456, 149 So. 351, 352 (1933)). Thus, because § ll-2A-2(4) is the last expression of the legislative will, its provisions take precedence over the earlier, and less specific, provisions of § 36-22-62(b).

Norton argues that by statute he has a vested interest in his status as a supernumerary sheriff. He cites § 36-22-61, Ala.Code 1975, which states, in pertinent part:

“If any sheriff, subject to the provisions of this article, shall end his tenure of office prior to having reached [the] age of 55 years, but having had 16 years of service as a law enforcement officer, 12 of which have been as sheriff, his supernumerary allowance as set out in Section 36-22-62, shall be vested and held in the general fund of the county until he attains the age of 55, at which time, or any time thereafter, he may elect to become a supernumerary sheriff as set out in Section 36-22-60.... ”

When interpreting a statute, this Court is bound to look to the plain meaning of the words used by the legislature.

“ ‘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.”
‘Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))....”’

Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149 (Ala.2006). No definition for the term “allowance” used in § 36-22-61 is provided in Chapter 22 of Title 36. However, Black’s Law Dictionary defines “allowance” as “[a] share or portion, esp. of money that is assigned or granted.” Black’s Law Dictionary 84 (8th ed.2004). Thus, given the plain meaning of the word “allowance,” it is apparent that the use of that word in § 36-22-61 refers to the supernumerary sheriffs being vested as to the pay he or she shall receive upon entering the office of supernumerary sheriff, i.e., 50 percent of his or her most recent monthly salary before leaving the office of sheriff as set forth in § 36-22-62(a), and not to the cost-of-living increase provided for in § 36-22-62(b). Norton thus received his “vested” allowance once he received his salary after taking the oath of office of supernumerary sheriff.

Finally, we consider whether the adoption of §§ 11-2A-1 through -8 supersedes § 36-22-62(b), which provides for a cost-of-living allowance and which states:

“Those persons eligible under either subdivisions (1) or (2) of Section 36-22-60, that may elect to become a supernumerary sheriff shall be entitled to receive a cost-of-living increase as the remuneration of the office of sheriff increases from which the supernumerary sheriff elected to vacate. Said cost-of-living increase shall be equal to the percentage allowed said supernumerary sheriff of the present sheriffs remuneration.”

Section § ll-2A-4(a) provides:

“Beginning with the fiscal year commencing on October 1, 2001, the local officials covered by this chapter shall be entitled to the same uniform increases in compensation, including cost-of-living increases, longevity increases, merit raises, and bonuses that are granted to county employees by the county commission at the time of the approval of the county budget. The increases shall be in the same amount or percentage, as the case may be, as that amount or percentage increase provided to the county’s employees.... ”

This section must be read in conjunction with § ll-2A-2(4), which provides:

“Any laws to the contrary notwithstanding, no person holding supernumerary office shall be entitled to any increases in compensation or expenses as a result of the implementation of any salary adjustments provided for in this chapter.”

(Emphasis added.) Because “we presume that the Legislature knows the meaning of the words it uses in enacting legislation,” Ex parte Jackson, 614 So.2d 405, 407 (Ala. 1993), we must consider § ll~2A-2(4) as applicable to the whole chapter and not only to § 11-2A-2.

The legislature did not define the term “salary adjustments” as used in § ll-2A-2(4), and this Court must therefore address the question whether cost-of-living increases, merit raises, and bonuses constitute “salary adjustments.” “When a court construes a statute, ‘[w]ords used in [the] 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.’ ” Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). Section ll-2A-4(a) specifically mentions a “cost-of-living adjustment” when it states: “If the implementation of any cost-of-living adjustment increases the salary of an incumbent office holder, the increase shall be paid as provided in subdivision (5) of Section 11-2A-2.” (Emphasis added.) Likewise, the legislature in 1981 passed a local act affecting the town of Fort Payne and providing additional compensation of $160 per month for police officers. The act provided, in pertinent part: “Such compensation shall in no way affect or restrict the regular cost of living, merit or longevity salary adjustments to which such persons may be entitled.” Act No. 81-915, Ala. Acts 1981 (emphasis added). Although this Court held Act No. 81-915 unconstitutional on other unrelated grounds, the wording of the act indicates that the legislature has historically considered a cost-of-living increase to be a “salary adjustment.” See Johnson v. City of Fort Payne, 485 So.2d 1152 (Ala.1986). We therefore conclude that the legislature intended to include cost-of-living increases in it reference to “salary adjustments.” It follows that the plain language of § 11-2A-2(4) prohibits a supernumerary sheriff from receiving cost-of-living adjustments contemporaneously with other county employees. Similarly, to the extent that §§ ll-2A-2(4) and 11-2A-4 conflict with § 36-22-62(b), for purposes of the circumstances of this case, §§ ll-2A-2(4) and 11-2A-4, as the more recent expressions of the legislature, control. See Gaines, supra.

TV. Conclusion

The office of supernumerary sheriff is an “office of trust [and] profit.” As such, the legislature may limit or reduce the salary of supernumerary sheriffs without violating § 22, Ala. Const, of 1901. Thus, the Cleburne Circuit Court incorrectly held unconstitutional §§ 11-2A-1 through -8, AIa.Code 1975. We therefore reverse the summary judgment in favor of Norton, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, WOODALL, and BOLIN, JJ., concur.

STUART, PARKER, and MURDOCK, JJ., dissent.

PARKER, Justice

(dissenting).

I respectfully dissent from the main opinion’s reversal of the trial court’s summary judgment in this case.

After the enactment of Act No. 2000-108, codified as Ala.Code 1975, § 11-2A-1 et seq., the Cleburne County Commission denied cost-of-living increases to Cleburne County Supernumerary Sheriff Jack E. Norton. In 2005 Norton filed a declaratory-judgment action seeking payment of those cost-of-living increases. The trial court granted Norton’s motion for a summary judgment, from which the Cleburne County Commission and the commissioners appealed.

Former sheriffs who have statutorily prescribed years-of-service credit are eligible to become supernumerary sheriffs. § 36-22-60, Ala.Code 1975. The pay for supernumerary sheriffs is based on their monthly salary at the time they completed their service as sheriffs. Section 36-22-60, Ala.Code 1975, provides:

“(a) Those persons eligible under either subdivisions (1) or (2) of Section 36-22-60, who have 16 years of creditable service as a law enforcement officer, 12 of which were served as sheriff, shall be entitled to receive an amount equal to 50 percent of the monthly salary paid such person at the time of the completion of his service in office, and shall be entitled to receive an additional amount equal to two percent of such person’s said monthly salary for each additional year of service up to a maximum of 65 percent of such monthly salary, but in no event shall any person receive payments pursuant to both the supernumerary and disability supernumerary provisions simultaneously. All such payments shall be paid from the general fund of the county in which said eligible person is serving upon his election to become a supernumerary sheriff or to become a supernumerary sheriff due to a disability.”

Section 36-22-62(b) provides that supernumerary sheriffs are entitled to cost-of-living increases:

“(b) Those persons eligible under either subdivisions (1) or (2) of Section 36-22-60, that may elect to become a supernumerary sheriff shall be entitled to receive a cost-of-living increase as the remuneration of the office of sheriff increases from which the supernumerary sheriff elected to vacate. Said cost-of-living increase shall be equal to the percentage allowed said supernumerary sheriff of the present sheriffs remuneration.”

(Emphasis added.)

Act No. 2000-108, § 2(a), codified as Ala.Code 1975, § 11-2A-2(1), established a new base pay for sheriffs:

“(1) SHERIFF. The annual minimum compensation for each sheriff shall be fifty thousand dollars ($50,000) which shall be in lieu of any salary and expense allowance currently provided to a sheriff receiving total compensation less than the minimum. Beginning with the next term of office for each sheriff, except as provided in Section 11-2A-4, the salary herein provided shall be the minimum compensation payable to the sheriff in lieu of any salary, expense allowance, or other compensation provided by law.”

Section ll-2A-2(4), which is crucial to this case, provides:

“(4) Any laws to the contrary notwithstanding, no person holding supernumerary office shall be entitled to any increases in compensation or expenses as a result of the implementation of any salary adjustments provided for in this chapter.”

I read § ll-2A-2(4) as prohibiting supernumerary sheriffs from getting the new base pay established for sheriffs in § 11-2A-2(1). The compensation for supernumerary sheriffs is based upon their monthly salary at the time they completed their service in law enforcement, § 36-22-62(a). Section ll-2A-2(4) makes it clear that supernumerary sheriffs are not eligible for this new base pay or to have their pay as supernumerary sheriffs calculated based on the new base pay established in § 11-2A-2(1).

The prohibition in § ll-2A-2(4), however, does not affect cost-of-living increases for supernumerary sheriffs. Section 11-2A-2(4) applies to “salary adjustments provided in this chapter.” The cost-of-living increases for supernumerary sheriffs are not provided “in this chapter” — i.e., Chapter 2A of Title 11 — but, instead, are provided in Chapter 22 of Title 86. Thus, the prohibition in § ll-2A-2(4) does not apply to cost-of-living increases for supernumerary sheriffs.

This interpretation of the statutes at issue here is reinforced by Act No. 2000-108, § 4, codified as section 11-2A-4, which allows for cost-of-living increases on the new base pay:

“(a) Beginning with the fiscal year commencing on October 1, 2001, the local officials covered by this chapter shall be entitled to the same uniform increases in compensation, including cost-of-living increases, longevity increases, merit raises, and bonuses that are granted to county employees by the county commission at the time of the approval of the county budget. The increases shall be in the same amount or percentage, as the case may be, as that amount or percentage increase provided to the county’s employees; provided, however, no tax assessor, tax collector, revenue commissioner, license commissioner, elected assistant tax assessor, or elected assistant tax collector shall receive an expense allowance as provided in subdivision (3) of Section 11-2A-2, and an increase under this subsection in the same fiscal year.
“Except as otherwise provided herein, officials in Category 2 [counties with a population from 350,001 to 449,999] shall be eligible for the cost-of-living increases beginning on October 1, 2000. If the implementation of any cost-of-living adjustment increases the salary of an incumbent office holder, the increase shall be paid as provided in subdivision (5) of Section 11-2A-2. The base compensation for the purposes of implementation of this subsection shall be that compensation established on October 1, 2000, and shall remain those respective amounts until increased as provided under the provisions of this chapter.
“(b) Any provision of this chapter to the contrary notwithstanding, the Legislature, by local law, may increase the compensation for local officials covered under this chapter. However, if a local law increases the compensation of a local official, such local official shall not be entitled to any cost-of-living adjustments pursuant to the procedure in subsection (a), until such time as the total compensation he or she would have received under subsection (a) is equal to or exceeds the increase provided by the local law.”

Subsection (b) provides an exception to the availability of cost-of-living increases when a local act increases the compensation of a local official. This exception is specifically referenced in the provision establishing the new base pay for sheriffs, § 11-2A-2(1). But this exception does not come into effect here because supernumerary sheriffs are not entitled to the new base pay nor is their compensation affected by a local act.

In contrast to the main opinion, I do not read § 11-2A-4 as providing for cost-of-living increases, in the terminology used in § ll-2A-2(4). Instead, I read § 11-2A-4 as allowing for cost-of-living increases provided for elsewhere and establishing rules to be applied to those cost-of-living increases.

Therefore, I believe that the trial court correctly granted Norton’s motion for a summary judgment. Accordingly, I would affirm the judgment of the trial court.

MURDOCK, Justice

(dissenting).

Clearly, § ll-2A-2(4), Ala.Code 1975, prevents supernumerary sheriffs from receiving a pro rata share of the one-time “salary adjustment” provided for in § 11-2A-2(1). I am not persuaded, however, that the term “salary adjustment” was intended as a reference to the “cost-of-living increases” contemplated by § 11-2A-4, so as to prevent supernumerary sheriffs from receiving the ongoing cost-of-living increases contemplated by the statutory scheme governing supernumerary sheriffs contained in Art. 3, Ch. 22, Title 36, Ala. Code 1975.

      . In Cleburne County, the probate judge also serves as the ex officio chairman of the Cle-burne County Commission.


author: SEE, Justice.

text:
    Ex parte Milton ANDERSON (In re State of Alabama v. Milton Anderson).
    1060486.
    Supreme Court of Alabama.
    Aug. 24, 2007.

      Milton Anderson, pro se.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for respondent
   SEE, Justice.

Facts and Procedural History

Milton Anderson was convicted of receiving stolen property and was sentenced as an habitual offender under the Habitual Felony Offender Act to 20 years’ imprisonment. On February 12, 2004, while incarcerated on the receiving-stolen-property conviction, Anderson was indicted for robbery and burglary. The case-action-summary sheet suggests that trial on the robbery and burglary charges was originally set for April 19, 2004, but it appears that Anderson’s case was continued at least five times: on April 29, 2004, June 24, 2004, October 18, 2004, May 24, 2005, and March 28, 2006. It is clear from an order issued by the trial court that Anderson requested the March 28, 2006, continuance “from the Spring 2006 Criminal Term of Court and rescheduled for trial during the next term of Court.” The case-action-summary sheet does not give the reasons for the other continuances, nor does it state whether Anderson or the State sought them.

On December 13, 2005, Anderson filed in the trial court a “[rjequest for final disposition of untried indictments, information or complaints and notice of place of inpri-sonment [sic].” On June 29, 2006, Anderson filed a motion to dismiss his case on the ground that he had been denied a speedy trial. Anderson subsequently petitioned the Court of Criminal Appeals for a writ of mandamus, arguing that the charges against him should be dismissed because, he argued, his right to a speedy trial had been violated. The Court of Criminal Appeals ordered Judge Howard Bryan to respond pursuant to Rule 21(b), Ala. R.App. P. Judge Bryan’s order, issued on December 4, 2006, states:

“Defendant ... has filed a motion for speedy trial in regard to an indictment pending against him in Macon County. Defendant is currently incarcerated in the state penitentiary system. It would appear that defendant’s case has been on the trial docket for the last terms of court but that for reasons that are not known to the court his case was not reached. However, defendant’s case will be placed on the docket for the next term of court and shall receive priority for disposition.”

The Court of Criminal Appeals dismissed Anderson’s petition on December 13, 2006. Anderson now petitions this Court for the writ of mandamus directing Judge Bryan to dismiss the charges against him on the basis that his right to a speedy trial has been violated. We deny the petition.

Standard of Review

“This Court’s standard of review applicable to a petition for a writ of mandamus is well settled:

“ ‘ “Mandamus is an extraordinary remedy and requires a showing that there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ ”

Ex parte Medical Assurance Co., 862 So.2d 645, 649 (Ala.2003) (quoting Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000)).

Analysis

Anderson argues that he has been denied his right to a speedy trial under the Constitution of the United States and the Constitution of the State of Alabama. See Amend. VI, U.S. Const. (“In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial.... ”); Art. 1, § 6, Ala. Const. 1901 (“[T]he accused has a right to ... a speedy, public trial.”). Anderson contends that he is entitled to have this Court issue the writ of mandamus directing the trial court to dismiss the charges against him. In determining whether the trial court violated Anderson’s right to a speedy trial, this Court must balance the four factors set out by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972): the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.) “ ‘A single factor is not necessarily determinative, because this is a “balancing test, in which the conduct of both the prosecution and the defense are weighed.” ’ ” Ex parte Walker, 928 So.2d 259 (Ala.2005) (quoting Ex parte Clopton, 656 So.2d 1243, 1245 (Ala.1995), quoting in turn Barker, 407 U.S. at 530, 92 S.Ct. 2182). However, in order to trigger an examination of the remaining Barker factors, the length of the delay must be “presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

1. Length of delay

“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial.’ ” Ex parte Walker, 928 So.2d at 264 (quoting Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002)). Anderson was indicted on the robbery and burglary charges on February 12, 2004. His most recent trial setting was sometime after December 4, 2006, the date on which the trial court ordered that Anderson’s case “be placed on the docket for the next term of court and shall receive priority for disposition.” Thus, the length of delay was approximately three years. The State concedes, and we agree, that the length of delay is presumptively prejudicial under Alabama caselaw. See Mansel v. State, 716 So.2d 234, 236 (Ala.Crim.App.1997) (“This court has previously found delays substantially less than the one the appellant complains of here [26 months] to be ‘presumptively prejudicial,’ requiring an examination of the remaining Barker criteria.”).

2. Reason for the delay

“The State has the burden of justifying the delay.” Ex parte Walker, 928 So.2d at 265. As noted earlier, it appears that Anderson’s case has been continued at least five times. The last continuance, on March 28, 2006, was granted at Anderson’s request. “ ‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of the delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’ ” Ex parte Walker, 928 So.2d at 265 (quoting Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993), quoting in turn McCollum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)). The record does not explain, however, why the other continuances were granted; nor does it state which party sought them. Because the State has failed to meet its burden of justifying the delay caused by the other continuances, we must conclude that the remaining delays of a little more than 25 months are attributable to the State’s negligence, and we hold that the second Barker factor — the reason for the delay— weighs against the State.

3. Anderson’s assertion of his right

“Repeated requests for a speedy trial weigh heavily in favor of an accused.” Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App.1990). On the other hand, an accused’s “delay [in filing a motion for a speedy trial] reduces the significance of the appellant’s assertion.” Archer v. State, 643 So.2d 597, 599 (Ala.Crim.App.1991). In the present case, Anderson first requested a “final disposition of untried indictments, information or complaints” in Alabama on December 13, 2005, a year and 10 months after he was indicted. Then, on March 28, 2006, he asked that his trial date be continued. Shortly thereafter, on June 29, 2006, Anderson moved to dismiss the case specifically “for failure to provide a Speedy Trial.” Thus, Anderson waited nearly two years after his indictment to request a “final disposition”; he subsequently secured a further delay; and he then specifically asserted that the trial court had failed to provide him a speedy trial. Anderson’s delay in asserting his right to a speedy trial and his own effort to delay the trial weighs against his claim. Archer v. State, 643 So.2d at 599 (“[T]he appellant did not file his motion for speedy trial until ... over a year from the date of indictment. The fact that the appellant did not assert his right to a speedy trial sooner ‘tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date.’ ” (quoting Lewis v. State, 469 So.2d 1291, 1294 (Ala.Crim.App.1984))).

4. Prejudice to Anderson

In analyzing the fourth factor, we consider the “interests of defendants which the speedy trial right was designed to protect. ...: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (in) to limit the possibility that the defense will be impaired.” Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. In the present case, Anderson alleges that he “is currently suffering from extremely oppressive incarceration” because he “has been repeatedly denied work release, honor camps or lesser security level transfer, institutional jobs and educational programs that require custody.” Anderson was already incarcerated when he was indicted on the current charges. Thus, Anderson has not suffered “extremely oppressive incarceration” “apart from the obvious detriments suffered by any defendant incarcerated prior to trial.” Beaver v. State, 455 So.2d 253, 255 (Ala.Crim.App.1984). See also Kimberly v. State, 501 So.2d 534, 537 (Ala.Crim.App.1986) (“[Vjague allegations that the defendant had been deprived of ‘many Federal benefits’ and programs and that the delay had affected his good time” are “too vague to substantiate any claim of prejudice.”).

Anderson also alleges that his defense has been impaired as a result of the delay. In his petition for the writ of mandamus, he states that he “has lost potential witnesses to Death and Relocation, thereby rendering Anderson unable to present his alibi defense as planned.” In his response brief, Anderson elaborates on the prejudice he has suffered from the delay, stating that

“he has lost one potential witness [Danial Pollard] to death whose testimony would have proved that [he] and Pollard [were] together all morning and all afternoon but departed in the early evening, not seeing each other for the remainder of the night, corroborating Anderson’s statement given to the arresting Officer on the night he was arrested. This lost testimony would have been sufficient to refute the state witness that testified at Anderson’s preliminary hearing on September 8, 2003 that Anderson and Pollard [were] together around 11 or 12:0’Clock on the night of the offense and to raise a reasonable doubt in the jurors’ minds as to Anderson’s innocence.”

Anderson further states that he has “lost four potential witnesses to relocation.”

In the parts of the record submitted as exhibits to his petition, Anderson has made only bare allegations that his defense has been impaired because “one potential witness is now deceased (Danial Pollard), and four (4) other potential witnesses have relocated and due to defendant’s incarceration, the new locations are unknown.” The materials contain “no subpoenas for [these] witnesses] for the first trial date,” nor any explanation as to what their testimony would have been. See Bishop v. State, 656 So.2d 398, 403 (Ala.Crim.App.1994). Thus, in determining whether Anderson has been prejudiced by the alleged loss of witnesses caused by the delay, we have only Anderson’s assertion in his response brief that the “lost testimony would have been sufficient to refute the state witness that testified at Anderson’s preliminary hearing on September 8, 2003 that Anderson and Pollard [were] together around 11 or 12:0’Clock on the night of the offense and to raise a reasonable doubt in the jurors’ minds as to Anderson’s innocence.” However, we are unable to verify whether the lack of such testimony in fact prejudices Anderson based on the materials before us, and “[t]his Court is bound by the record and cannot consider statements in brief not supported by the record.” Mauldin v. Mount Hebron United Methodist Church, 289 Ala. 493, 495, 268 So.2d 770, 772 (1972).

We are also unable to determine whether the testimony that could have been provided by Danial Pollard and the other missing witnesses was truly material or would have been merely cumulative. See Howard v. State, 678 So.2d 302, 304 (Ala.Crim.App.1996) (“Because, however, the appellant presented other alibi witnesses at trial, the testimony of the deceased witness would have been cumulative.... [W]e conclude that the appellant’s right to a speedy trial was not violated.”). Thus, Anderson has not demonstrated that he has been prejudiced by the delay.

“The United States Supreme Court in Doggett [v. United States, 505 U.S. 647 (1992),] used three hypothetical cases to demonstrate the accused’s burden under the fourth Barker factor. The accused’s burden ‘of proof in each situation varies inversely with the [StateJ’s degree of culpability for the delay.’ In the first scenario, where the state pursues the accused ‘with reasonable diligence,’ the delay — however long — generally is excused unless the accused demonstrates ‘specific prejudice to his defense.’ Thus, when the state acts with reasonable diligence in bringing the defendant to trial, the defendant has the burden of proving prejudice caused by the delay.
“The second situation recognized in Doggett involves bad-faith efforts by the state to delay the defendant’s trial. For example, intentional delay by the state in order ‘to gain some impermissible advantage at trial’ weighs heavily against the state, and a bad-faith delay the length of the delay in Doggett likely will ‘present an overwhelming case for dismissal.’ Obviously, the burden on the accused to establish prejudice in this scenario would be minimal at most, and depending on how heavily the other Barker factors weigh against the state, the fourth factor’s inquiry into prejudice could be rendered irrelevant....
“The third scenario recognized in Doggett involves delay caused by the state’s ‘official negligence.’ Official negligence ‘occupies the middle ground’ between bad-faith delay and diligent prosecution. In evaluating and weighing negligent delay, the court must ‘determine what portion of the delay is attributable to the [state]’s negligence and whether this negligent delay is of such a duration that prejudice to the defendant should be presumed. The weight assigned to negligent delay ‘increases as the length of the delay increases.’ Negligent delay may be so lengthy — or the first three Barker factors may weigh so heavily in the accused’s favor — that the accused becomes entitled to a finding of presumed prejudice. When prejudice is presumed, the burden shifts to the state, which must then affirmatively show either that the delay is ‘extenuated, as by the defendant’s acquiescence,’ or ‘that the delay left [the defendant’s] ability to defend himself unimpaired.’ ”

Walker, 928 So.2d at 267-68.

Anderson’s case falls within the third Doggett scenario. We do not find the State’s negligent delay of approximately 25 months to be so severe as to relieve Anderson of any responsibility to demonstrate at least some actual, as opposed to conjectural, prejudice. Moreover, Anderson’s own conduct in waiting 22 of those 25 months before first asserting his right to a speedy trial, and then seeking a continuance, suggests, absent some contrary explanation, that Anderson did not consider the delay to be prejudicial.

In order for this Court to issue the writ of mandamus, Anderson must show “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). Anderson has failed to do so. Moreover, we note that, although Anderson’s trial has been further delayed by the filing of this petition, the trial court has specifically ordered that his case “be placed on the docket for the next term of court and shall receive priority for disposition.”

Conclusion

Because Anderson has failed to establish that he has a clear legal right to the relief he seeks, we deny the petition.

PETITION DENIED.

WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

COBB, C.J., recuses herself.

      . The actual indictment is dated February 12, 2004; however, the case-action-summary sheet states that the date of the indictment was February 5, 2004.

      . In his "Inmate request for final disposition of untried indictments, information or complaints and notice of place of inprisonment [sic],” Anderson states that he "has previously filed a Motion for Fast and Speedy Trial.” However, Anderson has the burden of supplying this Court with a copy of that motion. Rule 21(a), Ala. R.App. P. ("Application for a writ of mandamus ... shall contain ... [c]op-ies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.”). Because he has failed to file a copy of that motion, it is not properly before this Court, and we do not consider it.