author: IRVING, J., for the Court.

text:
    VIKING INVESTMENTS, LLC d/b/a Trademark Title Services, Appellant v. ADDISON BODY SHOP, INC., Curtis T. Addison, Individually and d/b/a Addison Body Shop, Inc., and Central Mississippi Planning and Development District, Appellees.
    No. 2005-CA-01099-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.

      John Denver Fike, attorney for appellant.
    Harry Jones Rosenthal, Tommie Lee Stingley, attorneys for appellees.
    Before KING, C.J., IRVING, CHANDLER and ISHEE, JJ.
   IRVING, J., for the Court.

¶ 1. This appeal arises from an order of the Chancery Court of Hinds County declaring a tax sale of property owned by Curtis Addison (doing business as Addison Body Shop, Inc.) void because Addison was not given adequate notice of the expiration of the redemption period. Feeling aggrieved, Viking Investments, LLC (Viking) appeals and asserts the following error: whether a tax sale is void pursuant to Mississippi Code Annotated § 27-43-3 (Rev.2004), when the landowner receives notice of the expiration of redemption period by certified mail, but notice by personal service fails to comply with Rule 4 of the Mississippi Rules of Civil Procedure.

¶2. We find no error. Therefore, we affirm.

FACTS

¶ 3. The property which is the subject of this litigation was conveyed to Addison Body Shop, Inc. (Addison) by a warranty deed dated November 8, 1996. Due to unpaid ad valorem taxes for the year 2000, the subject property was sold at a tax sale to Viking on August 27, 2000. On September 22, 2003, the chancery clerk executed a tax deed to Viking. On April 7, 2004, Viking filed a complaint to confirm tax title. On May 13, 2004, Addison filed his answer to the complaint. On March 18, 2005, the Hinds County Chancery Court held a hearing on Viking’s complaint to confirm tax title. At the conclusion of that hearing, Viking and Addison were asked to submit proposed findings of fact and conclusions of law regarding whether “Addison received adequate notice of the redemption period as contemplated by Mississippi Code Annotated Section 27-43-3.” Ultimately, the chancery court found that “Addison was not given adequate notice of the expiration of the redemption period” and, therefore, declared the tax sale of Addison’s property void. From that adverse ruling, Viking appeals.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 4. Viking acknowledges that Mississippi Code Annotated section 27-43-3 requires that three different forms of notice be sent to a landowner informing the landowner of the opportunity to redeem his property when the property has been sold because of delinquent ad valorem taxes. However, Viking maintains that “a strict reading and interpretation of Mississippi Code Annotated § 27-43-3 indicates that both notice by personal service and certified mail must return not found before the duty of further search and inquiry by the chancery clerk is triggered.” Therefore, Viking argues that since Addison was properly served with notice by certified mail and publication and neither was returned not found, the chancery clerk specifically complied with the dictates of section 27-43-3 and, thus, the tax sale was valid.

¶ 5. Addison counters that the notice requirements set forth in section 27-43-3 state that notice of the redemption period must be accomplished by three means: (1) personal service, (2) service by mail, and (3) publication in a newspaper. Addison argues that the sheriff failed to perfect personal service of the redemption notice because the deputy sheriff served the notice by posting it to Addison’s property. Therefore, Addison contends that the chancery court was correct in its finding that he did not receive adequate notice of the redemption period in accordance with section 27-43-3.

¶ 6. “When property is sold for unpaid county or municipal ad valorem taxes, the property owner must be given notice of his right to redeem the property within 180 days of, but no less than 60 days prior to, the expiration of the redemption period.” DeWeese Nelson Realty, Inc. v. Equity Services Co., 502 So.2d 310, 311 (Miss.1986). Chancery clerks are required to provide notice to property owners in accordance with Mississippi Code Annotated section 27-43-3 (Rev.2002), which states in pertinent part:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at his usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public néwspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.

The Mississippi Supreme Court has held that “[sjection 27-43-3 requires redemption notice be given by personal service, by mail, and by publication in an appropriate newspaper.” DeWeese Nelson Realty, Inc., 502 So.2d at 312. Therefore, in order for a redemption notice to be complete and in accordance with the statute, all three requirements must be met.

¶ 7. “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners.” Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003) (quoting Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991)). “Any deviation from the statutorily mandated procedure renders the sale void.” Id. (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980)). In the present case, it is uncontradicted that the chancery clerk met two of the three redemption notice requirements by mailing a copy of the notice to Addison via certified mail and by publishing the notice in The Clarion-Ledger newspaper within the statutorily prescribed time frame. However, the personal service that Addison received did not meet the statutory requirements.

¶ 8. According to section 27-43-3, the sheriff is required to “serve personal notice as summons issued from the courts are served.” Rule 4 of the Mississippi Rules of Civil Procedure dictates how summons issued from the courts are to be served. The Rule states in pertinent part:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows: (1) Upon an individual other than an unmarried infant or a mentally incompetent person, (A) by delivering a copy of the summons to him personally or to an agent authorized by appointment or by law to receive service of process; or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service, and thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

M.R.C.P. 4(d)(1)(A).

Here, the record indicates that the deputy sheriff posted the notice to Addison’s business when he was unable to successfully locate Addison on the premises. Posting a notice to the property when the intended recipient cannot be located is clearly not one of the methods for perfecting personal service under Rule 4. In its brief, Viking candidly admits that “it is obvious that this type of service fails to comply with the acceptable methods of service set forth by Rule 4 of the Mississippi Rules of Civil Procedure.” This issue is without merit.

¶ 9. In short, we find that Addison was not given adequate notice of the expiration of the redemption period because he never received personal service as mandated by Rule 4. Therefore, in accordance with the dictates of section 27-43-3, we find that the chancery court was correct in its ruling that the tax sale of Addison’s property was void.

¶ 10. We briefly note that Viking made arguments pertaining to additional issues in its brief. However, we find that those issues are not germane to our resolution of the present case. Therefore, we decline to discuss the merits of those issues because we find that “notice must be given by personal service, mail, and publication before a landowner’s rights are finally extinguished by the maturing of a tax deed.” DeWeese Nelson Realty, Inc., 502 So.2d at 314.

¶11. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Jackson Cigar and Tobacco Company conveyed its interest in the property to Addison.

      . Addison testified that his home address was 4110 El Paso Street, Jackson, MS 39206. Therefore, there is no question that he was a Mississippi resident when the tax sale occurred.

      . More accurately, the record reveals that the deputy sheriff served the notice as follows: "Posted to Property on 06/10/03.”

      . Section 27-43-3 provides that "[sjhould the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void....”

      . Viking makes the argument that Addison is judicially estopped from claiming an interest in the subject property. The basis for this argument is that Addison failed to list the subject property in his bankruptcy schedule when he filed chapter 13 bankruptcy. According to Viking, "judicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based on that undisclosed asset.” Viking makes an additional argument that the State of Mississippi and Hinds County have a "compelling governmental interest in collecting ad valorem taxes as a source of revenue.” Therefore, "[p]ermitting a landholder to engage in such egregious conduct without any form of repercussion, is contrary to State public policy, completely undermines the tax system as established, and sets a dangerous precedent for future cases.”


source: Caselaw Access Project

license: Public Domain

text:
    Jennifer Louise LeBLANC, Appellant v. Curtiss Dean ANDREWS, Appellee.
    No. 2004-CA-02258-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.

      T. Jackson Lyons, Jackson, attorney for appellant.
    Michael P. Younger, Brandon, attorney for appellee.
    Before LEE, P.J., IRVING, GRIFFIS and ROBERTS, JJ.
   IRVING, J., for the Court.

¶ 1. The Chancery Court of Hinds County granted Jennifer LeBlanc a divorce from Curtiss Andrews on the ground of habitual cruel and inhuman treatment. The chancellor divided the marital property and debt between the divorcing parties. With respect to the couple’s minor child, Aimee, the chancellor utilized the Albright factors in awarding custody to LeBlanc. The chancellor ordered Andrews to pay child support for the benefit of the minor child and afforded Andrews unsupervised visitation on a graduated schedule. The chancellor also ruled that LeBlanc was entitled to rehabilitative alimony in the form of payment of certain debts by Andrews. After the final judgment was entered, LeBlanc asked for reconsideration of certain parts of the judgment, which the chancellor denied. Feeling aggrieved by the chancellor’s ruling, LeBlanc appeals and asserts the following issues: (1) whether the chancellor erred as a matter of law by assigning certain debts to Andrews as a form of rehabilitative alimony to LeBlanc, but otherwise refusing to order periodic, limited duration payments of rehabilitative alimony, and (2) whether the court abused its discretion in declining to order Andrews to undergo a mental examination as provided in Rule 35 of the Mississippi Rules of Civil Procedure.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 7, 2003, Andrews filed a complaint for divorce, seeking a divorce on the grounds of habitual cruel and inhuman treatment or, alternatively, irreconcilable differences. LeBlanc answered, denying that Andrews was entitled to a divorce on fault-based grounds; she also counterclaimed for a divorce on the ground of habitual cruel and inhuman treatment. Additionally, LeBlanc requested that the court grant her sole physical and legal custody of Aimee. LeBlanc also petitioned the court for the following relief: (1) rehabilitative alimony, (2) assignment of certain credit cards and mobile phone debts to Andrews, and (3) an order requiring Andrews to repay debt that she incurred after he allegedly abandoned his family in January 2003. LeBlanc further requested that visitation between Andrews and Aimee be supervised.

¶ 4. Shortly thereafter, the chancellor entered a temporary order requiring supervised visitation and an allotment of $1,700 per month paid to LeBlanc through Andrew’s employer, the United States Coast Guard.

¶ 5. In October 2003, LeBlanc requested that the court order a mental examination’ of Andrews and that the court compel Andrews to answer discovery requests. An order was subsequently entered requiring Andrews to completely respond to Le-Blanc’s discovery requests, but the court reserved ruling on the motion for a mental examination. In November 2003, LeBlanc again requested answers to discovery and. asked that Andrews be ordered to either produce records of his Batterer’s Intervention Program and Domestic Violence Assessment or undergo a mental examination. In February 2004, the chancellor granted LeBlane’s motion for supplemented discovery' responses and ordered Andrews to make arrangements for payment of the entire allotment previously ordered. However, the chancellor refused to allow discovery of Andrews’s previous mental and psychological evaluations and denied LeBlanc’s motion for a mental examination.

¶ 6. Ultimately, a trial on the merits was held. The chancellor rendered a bench opinion in which she granted LeBlanc a divorce on the ground of habitual cruel and inhuman treatment and divided the parties’s debts and assets. The chancellor also awarded LeBlanc custody of Aimee. The chancellor further ordered Andrews to pay child support and afforded him unsupervised visitation. Finally, the chancellor ruled that LeBlanc was entitled to rehabilitative alimony in the form of payment of certain debts by Andrews.

¶ 7. After the final judgment was entered, LeBlanc asked, for reconsideration of certain parts of the judgment. In particular, “she requested that the part of the final judgment providing for visitation be stayed in favor of supervised visitation during the pendency of the appeal.” The chancellor dictated a bench ruling in which she corrected a mathematical error in the child -support award, but denied all other relief.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

STANDARD OF REVIEW

¶ 9. Our scope of review for appeals-from chancery courts is limited: “[We] will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.”. Samples v. Davis, 904 So.2d 1061, 1064(¶ 9) (Miss.2004) (citing Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). “In order for [us] to say that the chancellor has abused his discretion, there must be insufficient evidence to support his conclusions.” Id. (citing Tucker v. Tucker, 453 So.2d 1294, 1296-97 (Miss.1984)).

ANALYSIS AND-DISCUSSION OF THE ISSUES

1. Rehabilitative Alimony

¶ 10. LeBlanc argues that the chancellor erred in concluding'that an equitable property division could also serve as rehabilitative alimony. LeBlanc maintains that the evidence is irrefutable that she was urged to become a full-time mother and homemaker -after the birth of the couple’s daughter, that she and her children were left destitute when Andrews left the marital home with the remaining money in their checking account and terminated his payroll deposit to that account, and that she was forced to borrow $13,000 from family members to bridge the gap between being an unemployed mother of two small children to becoming a full-time, single mother of two. According to Le-Blanc, this is exactly the type of situation for which rehabilitative alimony is designed.

¶ 11. LeBlanc points out that equitable distribution has traditionally been used as a mechanism to untangle a divorcing Couples’s economic relationship to the extent possible by equitably dividing whatever property the couple accumulated during the marriage whereas rehabilitative alimony “is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.” LeBlanc maintains that in short marriages like hers (about two and one-half years) where there is little in the way of assets to equitably divide, other than debt, the chancellor should consider an award of rehabilitative alimony. Le-Blanc further points out that she is about $60,000 in debt. She arrived at this figure by adding the amount of marital debt allocated to her by the chancellor and the amount of the debt she incurred to make ends meet after Andrews left the marital home. She argues that the chancellor should have considered the additional financial debt she had to incur in order to make the transition from an unemployed parent to a single, full-time worker.

¶ 12. Andrews counters that, in awarding rehabilitative alimony, the chancellor is not restricted as to what form the alimony may take. He maintains that the award may be in the form of payment of cash and/or payment of debts or liabilities. He contends that the chancellor correctly noted that the parties’s martial estate largely consisted of debts and that the chancellor accordingly assigned certain portions of the debt to Andrews as rehabilitative alimony in an effort to assist LeBlanc post-divorce.

¶ 13. The Mississippi Supreme Court has stated the following in relation to rehabilitative alimony:

Rehabilitative alimony is awarded to parties who have put their career on hold while taking care of the marital home. Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient. Therefore, rehabilitative alimony is not considered during equitable distribution. “Rehabilitative periodic alimony” is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim.... “Rehabilitative periodic alimony” is not intended as an equalizer between the parties but is for the purpose of allowing the lesser able party to start anew without being destitute in the interim

Lauro v. Lauro, 847 So.2d 843, 849(¶ 15) (Miss.2003).

¶ 14. Contrary to LeBlanc’s assertion, her situation is not of the type for which rehabilitative alimony was designed. Rehabilitative alimony is designed to allow a party “to become self-supporting without becoming destitute in the interim.” Although Andrews did leave the marital home, there is no evidence in the record that LeBlanc was left destitute as a result. The record reveals that, shortly after he left the marital home, Andrews began paying LeBlanc $1,200 to $1,700 per month. The record also reveals that LeBlanc was working as a paralegal when she stopped working in August 2001. LeBlanc reentered the workforce in February 2004, and, at the time of trial, was gainfully employed as a secretary with a gross monthly income of $2,666.66. There is nothing in the record to indicate that LeBlanc had to receive additional training or had to be retrained in order to facilitate her entrance back into the workforce. The record does not reveal, and we know of no reason why, LeBlanc did not seek and obtain employment throughout 2003. Therefore, we fail to appreciate how Le-Blanc’s situation would entitle her to rehabilitative alimony. We are cognizant of the fact that the crux of LeBlanc’s argument is that, even with the $1,700 monthly allotment from Andrews, she had to borrow additional money to cover existing marital debts. The chancellor heard Le-Blanc’s testimony about the circumstances which led to her having to borrow additional money, and, for whatever reason, decided that this circumstance did not warrant the imposition of periodic alimony. For the above stated reasons, we find that the chancellor did not abuse her discretion by awarding LeBlanc rehabilitative alimony in the form of payment of certain debts by Andrews.

2. Mental Examination

¶ 15. LeBlanc argues that the court should have ordered Andrews to undergo a mental examination before granting him unsupervised visitation with Aimee. LeBlanc relates several incidents which she thinks demonstrates that it would not be in Aimee’s best interest to have unsupervised visitation with Andrews:

(1). LeBlanc returned home to find Andrews, fully dressed, on top of Hailey (her daughter from a previous relationship) who was lying on the floor. Andrews got up, laughed, and said that they were playing “squish.” Hailey said that she was watching television when Andrews came into the room and laid down on top of her. Hailey said that Andrews never told her that they were playing “squish” before lying down on top of her.

(2). LeBlanc and Hailey both stated that Andrews would yell, curse, slam and throw things when he would not get his way or when he felt that LeBlanc was not paying enough attention to him or was showing Hailey too much love and attention.

(3). As Andrews was dressing Aimee, who was at that time six months old, Le-Blanc saw Andrews yell at Aimee and then yank her around and tell her to sit still while he was dressing her.

(4). When Aimee was still too young to sit erect, Andrews put her on the handle of a grocery store shopping cart, holding her with one hand and pushing the cart with the other hand.

(5). LeBlanc stated that Andrews once put Aimee on the handlebars of a bicycle when she was still at a young age.

(6). Andrews was supposed to be watching Aimee while she was outside playing, but he was preoccupied with other things and allowed Aimee to wander close to the highway without attempting to stop her.

(7). LaBlanc stated that Andrews once got mad at her and threw a screwdriver at her.

(8). Andrews once got very upset and violent with LeBlanc in public.

(9). Andrews’s deviant sexual desires and behavior, including his desire to nurse from his wife’s breast while she was nursing Aimee (allegedly done in the presence of Hailey), his desire to have sex with LeBlanc while she was nursing Aimee, and his masturbation in front of LeBlanc, Hai-ley, and Aimee.

(10). The recommendations of a marriage counselor that Andrews should not have unsupervised visitation with Aimee.

¶ 16. Despite the above incidents, the chancellor refused to order a mental examination of Andrews and also, refused to order supervised visitation with Aimee. In making her ruling, the chancellor stated:

Ms. LeBlanc has requested that the visitation be supervised and that that is based upon a history of violence and inappropriate conduct and putting the minor child in danger. The Court did have testimony from the other minor child that lived with these parties. I believe Hailey was about nine — she may have been eight when I spoke with her, but she’s very bright, very articulate. And in talking with her, she could not provide an instance where she really felt unsafe or she feared Mr. Andrews in the sense that would concern the Court. She represented that there were some things she did not like about him and really a lot of that came from her concerns that she received from her mother. So based upon what I’ve heard, I haven’t heard anything that would convince me that if Mr. Andrews visited with Aimee unsupervised that she would be in danger.

¶ 17. We agree with the chancellor’s assessment and treatment of this issue. The record simply does not support that Andrews had ever harmed Aimee in the past or that he would present an immediate danger to her health and safety in the future. It is true that much testimony was adduced about difficulties the parties had experienced and how certain incidents had negatively affected Aimee. However, nothing was shown, proven, or established pertaining to any harm that had befallen Aimee while in Andrews’s custody. The chancellor heard the testimony given in support for supervised visitation and, nevertheless, chose not to order supervised visitation. The chancellor, “being the only one to hear the testimony of the witnesses and observe their demeanor, is in the best position to judge their credibility.” In re Estate of Carter, 912 So.2d 138, 143(¶ 18) (Miss.2005) (citing Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983)). “Moreover, since the chancellor is best able to determine the credibility of the witness’ testimony, it is not [an appellate court’s] province to undermine the chancellor’s authority by replacing the chancellor’s judgment with our own.” Id. (citing Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993)).

¶ 18. For the above stated reasons, we decline to overrule the chancellor decision to afford Andrews unsupervised visitation with Aimee.

¶ 19. In reference to the mental-examination, Rule 35(a) of the Mississippi Rules of Civil Procedure states in pertinent part:

When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control,

(emphasis added). The above language clearly indicates that whether to order a party to undergo a mental examination is at a chancellor’s discretion. The chancellor in the present case found no evidence or testimony during discovery, litigation, or any other time that would warrant ordering a mental examination of Andrews. The chancellor heard testimony from various witnesses about why Andrews should have been ordered to undergo a mental examination. The chancellor also heard from Andrews about why there was no need to order a mental examination of him. “When conflicting testimony on the same issue is presented, the chancellor sitting as trier must determine which version he finds more credible.” Bratcher v. Sur-rette, 848 So.2d 893, 896(¶ 16) (Miss.Ct.App.2003). “The weight and worth of a witness’s testimony [is] solely for the chancellor to determine.” Id. (citing Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994)).

¶ 20. Faced with conflicting testimony, the chancellor determined what weight and worth to give each witness’s testimony and decided not to order a mental examination of Andrews. As previously-stated, it is not our province to undermine the chancellor’s authority by replacing her judgment with our own. Based on these facts, we decline to find that the chancellor abused her discretion in deciding not to order a mental examination of Andrews.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR.

      . More specifically, the temporary order stated that “Andrews shall pay temporary support on the first of each month beginning May 1, 2003, in cash until a United States Coast Guard (USCG) allotment from his pay check can be arranged and thereafter by such allotment, the sum of $1,700.00 per month.”

      . Specifically, the chancellor ruled that “[a]s a form of rehabilitative alimony, the father [Andrews] shall pay the balances due, includ- • ing penalties, late charges, and interest, on the Discover Card and Sears Card, now totaling approximately $6,103.87, within 60 days of the date of this judgment, making at least minimum payments in the meantime.”

      . LeBlanc has another child, Hailey, who is not Andrew's.

      . Beginning in February 2003, the Coast Guard arranged for a monthly allotment of $1,200 to be paid to LeBlanc out of Andrews's payroll check. In April 2003, the parties went to court and the court entered a temporary order requiring Andrews to pay $1,700 per month beginning May 1, 2003.

      . LeBlanc provided the court with promissory notes evidencing money she borrowed but failed to provide any supporting documentation to help substantiate her contention that she borrowed the money to assist in meeting certain financial obligations.

      . Elizabeth Callender, a licensed clinical social worker and family therapist, counseled Andrews, LeBlanc, and Hailey about some of the problems the family was experiencing. She testified that from her sessions with Andrews and what they revealed, she felt that it "would be very beneficial for a third party to monitor the visits [between Andrews and Aimee] for a period of time.” Sami Riley, a certified domestic violence counselor, performed a domestic violence assessment on Andrews at the insistence of and by referral agreement with the Coast Guard. After personally meeting with Andrews and interviewing LeBlanc by phone, Riley generated a report in which she recommended that "neither Mrs. LeBlanc nor her children be alone with her husband until further appropriate measures have been taken to avoid unintended consequences.”


author: GRIFFIS, J., for the Court.

text:
    Michael Andy LANG, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00648-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.

      Paul McGerald Luckett, McComb, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Michael Lang was convicted and sentenced to life imprisonment for the murder of his wife, Susan Lang. On appeal, Lang raises one issue: whether the trial court erred by admitting a videotape of the crime scene into evidence. Finding no error we affirm.

FACTS

¶ 2. On the night of April 21, 2003, Susan Lang was stabbed to death in her home. Michael Lang, the victim’s husband, gave several conflicting accounts of the night’s events.

¶ 3. Initially, Lang told the police that the house had been burglarized and the television was stolen. Later, Lang admitted that he took the television himself.

¶ 4. Several days after the discovery of Susan Lang’s body, Lang gave a taped statement wherein he admitted that he had been smoking crack cocaine throughout the evening. He admitted that he stabbed Susan, but said that he had no recollection of the actual stabbing.

¶ 5. Lang was seen in the early morning hours of April 21, 2003, with Zella Washington. Zella testified that Lang picked her up and they rode around and smoked crack cocaine together. At some point, they took the television, located in the back seat of Lang’s vehicle, and Lang traded it for crack cocaine. Lang’s brother and sister-in-law testified that they saw Lang with Zella.

¶ 6. At trial, Lang testified in his own defense. Lang’s testimony was that two men approached him in his yard and threatened him. One of the men went in the house and Lang heard Susan screaming. According to Lang, when he ran into the house, Susan was bloody and coming out of the bedroom. She had been stabbed.

¶ 7. After a three-day trial, the jury found Lang guilty of murder.

STANDARD OF REVIEW

¶ 8. The standard of review for a trial judge’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986).

ANALYSIS

¶ 9. At trial, the prosecution offered into evidence several photographs that depicted the victim’s body and the bloodstained walls and bedding. Mrs. Lang had been stabbed twenty-seven times. The prosecution offered a videotape that also depicted the bloody crime scene. Lang offered no objection to the admission of the videotape prior to its viewing. On appeal, Lang argues that the videotape was gruesome, graphic, and repetitive, and that the trial judge abused its discretion in admitting the videotape into evidence.

¶ 10. While the jury was out and the court prepared to view the video, Lang’s counsel took this opportunity to move for a mistrial based on earlier testimony of a former Pike County Sheriffs deputy.

¶ 11. There was no objection on the record to the admissibility of the videotape. Likewise, there was no objection in the record before the video was played for the jury. It is well-settled law that the failure to make a contemporaneous objection waives the right of raising the issue on appeal. Ballenger v. State, 667 So.2d 1242, 1259 (Miss.1995). Lang’s counsel recognized his error and raised the objection during a recess, and he stated, “I can go way back to when we objected to the photos. I guess it is my fault that I did not object to the video, which is essentially the same thing.”

¶ 12. Notwithstanding the waiver, this Court has reviewed the objection of Lang’s counsel as to the admissibility of the photographs. The objection raised was to a potential discovery violation. After it was clear that the photos sought to be introduced had been produced during discovery, no additional objection was made. An objection must state the specific ground for the objection unless the specific ground is apparent from the context. M.R.E. 103(a)(1). This issue is raised for the first time on appeal. Before an issue may be assigned and argued here, it must first have been presented to the trial court. Read v. State, 430 So.2d 832, 838 (Miss.1983). Where the issue has not been timely presented below, it is deemed waived. Id. The point is thus said to be procedurally barred when urged here. Id. A trial judge cannot be put in error on a matter which was not presented to him for decision. Id.

¶ 13. We find no error and affirm.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF MURDER AND SENTENCE TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF TEN THOUSAND DOLLARS ($10,-000) AND ONE THOUSAND DOLLARS ($1,000) IN COURT APPOINTED ATTORNEYS FEES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . We do not address the nature of this testimony because this issue was not raised in this appeal.


author: ISHEE, J„ for the Court.

text:
    Georgina ROD, Appellant Cross-Appellee v. HOME DEPOT USA, INC., Appellee Cross-Appellant.
    No. 2004-CA-02018-COA.
    Court of Appeals of Mississippi.
    June 13, 2006.
    Harry B. Ward, Attorney for Appellant.

      Dorranee Dee Aultman, Hattiesburg, Attorney for Appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J„ for the Court.

¶ 1. Georgina Rod filed a complaint for damages against Home Depot USA, Inc. (Home Depot), asserting that she sustained injuries during a fall in the store, which was caused by a dangerous and hazardous condition created by Home Depot. The Circuit Court of Harrison County granted Home Depot’s subsequent motion for summary judgment. Aggrieved, Rod appeals. She asserts the following issues for this Court’s review: (1) the trial court erred in granting summary judgment because there were issues of fact on the location and condition of the display that caused the fall; (2) Home Depot created an unreasonable dangerous condition; (3) Home Depot breached its duty to Rod, an invitee; (4) the doctrine of “open and obvious” should not be a complete defense to defeat Rod’s action, but used instead as a consideration in comparative negligence formula. On cross-appeal, Home Depot asserts that the trial court erred in failing to strike Rod’s affidavit. Finding no error, we affirm as to both the appeal and the cross-appeal.

FACTS

¶2. On August 15, 2000, Rod and her late husband entered the Home Depot store located in Gulfport, Mississippi. Rod was familiar with that Home Depot, as she had been there on several occasions to buy plants. Once she entered the store, Rod began walking toward the plant section when she suddenly fell down. On December 11, 2002, Rod filed suit against Home Depot in the Circuit Court of Harrison County.

¶ 3. Rod, an elderly woman originally from Cuba, speaks and writes very little English. During her deposition, Rod explained (through an interpreter) that a pallet or wood piece may have caused her to slip and/or trip. After extensive questioning by counsel for both parties, however, she admitted that she did not know what caused her to slip and/or trip. Rod stated that an object, possibly a display' caused her fall, but that she could not say whether it was wood, steel or any other type of material.

¶ 4. On April 29, 2004, Home Depot filed a motion for summary judgment. Rod filed a motion in opposition to summary judgment on June 29, 2004, and on July .12, 2004, she filed a supplemental motion in opposition to summary judgment. Rod attached an affidavit to the latter motion, stating that she vaguely remembers the accident, but that she tripped on a display and fell. She further stated that she could not recall if the display had merchandise on it, or whether it had wheels.

¶ 5. On July 14, 2004, Home Depot filed a motion to strike Rod’s supplemental motion in opposition to summary judgment and affidavit. The circuit court heard oral argument from both of the parties, and on August 4, 2004, the court entered a judgment granting Home Depot’s motion for summary judgment and its motion to strike. The court reconsidered the motion to strike, however, and concluded that it had no practical effect on the court’s determination of the motion for summary judgment, and that it presented no actual controversy upon which a ruling was necessary. Thus, the circuit court entered an amended order on September 7, 2004, denying Home Depot’s motion to strike as moot.

¶ 6. Aggrieved by the court’s decision, Rod filed a notice of appeal on October 4, 2004. On- October 14, 2004, Home Depot filed a notice of cross-appeal. Finding no error, we affirm on direct and cross-appeal.

ISSUES AND ANALYSIS
I. Whether the trial court erred in granting summary judgment to Home Depot where there were issues of fact on the location and condition of the display that caused the fall.
II. Whether Home Depot created an unreasonable dangerous condition.
III. Whether Home Depot breached its duty to Rod, an invitee.

¶ 7. An appeal from summary judgment is reviewed de novo. Jacox v. Circus Circus Mississippi, Inc., 908 So.2d 181, 183(¶ 4) (Miss.Ct.App.2005) (citing Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 136(¶ 19) (Miss.1998)). The standard by which we review the grant or denial of summary judgment is the same standard as is employed by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. Id. (citing Dailey v. Methodist Medical Center, 790 So.2d 903, 906-07(¶3) (Miss.Ct.App.2001)). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” The evidence must be viewed in the light most favorable to the non-moving party. Jacox, 908 So.2d at 184(¶ 4) (citing Dailey, 790 So.2d at 907(¶ 3)).

¶ 8. Rod contends that genuine issues of material fact existed in this case because the following facts were not known: (1) what object caused her to trip and fall; (2) whether the object that caused her to trip and fall constituted a dangerous condition; (3) whether she had actual or constructive knowledge of the dangerous condition. Rod further contends that if summary judgment was appropriate because she cannot specifically identify the object that caused her to fall, then Mississippi should abolish its wrongful death statute, as a dead plaintiff has never identified the cause of his or her own death.

¶ 9. In determining premises liability, Mississippi employs a three-step process. Leffler v. Sharp, 891 So.2d 152, 156(¶ 10) (Miss.2004) (citing Massey v. Tingle, 867 So.2d 235, 239(¶12) (Miss.2004)). First, we must determine whether the injured party was an invitee, licensee, or a trespasser at the time of the injury. Id. Next, we must determine what duty was owed to the injured party by the business owner/operator. Id. Finally, we must determine whether that duty was breached. Id.

¶ 10. In the case sub judice, it is undisputed that Rod was a business invitee, as she entered Home Depot “in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1003(¶ 9) (Miss.2001) (citing Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646, 647 (Miss.1988)). A business owner/operator owes to invitees the “duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Leffler, 891 So.2d at 157(¶ 12) (quoting Massey, 867 So.2d at 239(¶ 13)). A plaintiff in a slip-and-fall case must prove one of the following in order to recover: (1) a negligent act of the defendant caused her injury; (2) the defendant had actual knowledge of the dangerous condition, but failed to warn the plaintiff; or (3) the defendant should have known about the dangerous condition, in that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 465(¶ 5) (Miss.Ct.App.2004) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995)).

¶ 11. In Byrne, the plaintiff was injured when she slipped on an unidentified substance, thought to be a cookie, while shopping in Wal-Mart. Id. at 464(¶ 1). The plaintiff stated during deposition that she did not know how long the cookie had been on the floor, or how it came to be there. Id. at 465(¶ 7). She also stated that she did not take a good look to see what object actually caused her to fall. Id. at 466(¶ 9). This Court determined that the plaintiff did not offer sufficient proof that the object which caused her injury was the result of an affirmative act by Wal-Mart, or that Wal-Mart had actual or constructive knowledge of the cookie’s presence on the floor. Id. at 465-66 (¶¶ 7-9). Consequently, this Court held that the trial court did not err in granting summary judgment. Id.

¶ 12. In order to survive the motion for summary judgment, Rod needed to provide evidence that a negligent act of Home Depot caused her injury because “the basis of liability is negligence and not injury.” Id. at 465(¶ 6) (citing Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)). Merely the fact that Rod fell while in Home Depot is not adequate proof of Home Depot’s negligence, as “proof merely of the occurrence of a fall on a floor within business premises is insufficient to show negligence on the part of the proprietor.” Id. A business owner/operator is not the insurer of the invitee’s safety. Leffler, 891 So.2d at 157(¶ 12) (quoting Massey, 867 So.2d at 239(¶ 13)).

¶ 13. Similar to the plaintiff in Byrne, Rod offered insufficient evidence that Home Depot breached its duty of care. Rod repeatedly stated during her deposition that she could not remember what caused her to fall. She initially claimed during deposition that a pallet or wood piece may have caused her to slip and/or trip, however, she later admitted, after extensive questioning by counsel for both parties, that she did not know what caused her to fall. Thus, Rod offered no proof that her injury was the result of an affirmative act of negligence by Home Depot, or that Home Depot had actual or constructive knowledge of a dangerous condition on the floor. Accordingly, we find that the trial court committed no error by granting Home Depot’s motion for summary judgment. This issue is without merit.

IV. The doctrine of “open and obvious” should not be a complete defense to defeat Rod’s action, but used instead as a consideration in comparative negligence formula.

¶ 14. The trial court did not address an open and obvious defense in granting Home Depot’s motion for summary judgment. Instead, the trial court found that there was no evidence of any defect or dangerous condition on the premises which would have caused Rod’s injury. The trial court further determined that Rod’s “speculation as to what caused the accident [could] not supply the factual support necessary to show that the [Rod] would be able to meet her evidentiary burden at trial.” As stated previously, we agree. Therefore, this issue is without merit.

V. Whether the trial court erred in failing to strike Rod’s affidavit.

¶ 15. Regarding the motion to strike, the trial court initially determined that the affidavit was not timely filed in response to Home Depot’s motion for summary judgment, pursuant to Rule 4.03(2)-(3) of the Uniform Circuit and County Court Rules, which dictates that a respondent must reply to a movant’s motion within ten days after service of the memorandum. Rod filed her affidavit on July 12, 2004, which was more than two months after Home Depot filed its motion for summary judgment. The trial court further determined that Rod’s affidavit failed to meet the form required by Rule 56(e) of the Mississippi Rules of Civil Procedure, which requires that the affiant be competent to testify, because the affidavit was written in English, it contained no interpreter’s certificate, and it stated that Rod “[does] not speak English fluently; and, that some English words do not have the same meaning, when they are translated into [her] native tongue.” Finally, the trial court determined that the affidavit should be stricken because it was merely an attempt by Rod to change her deposition testimony.

¶ 16. When the trial court reconsidered the motion to strike, it concluded that the affidavit had no practical effect on the court’s determination of the motion for summary judgment. Consequently, the trial court determined that the affidavit presented no actual controversy upon which a ruling was necessary. Thus, the trial court entered an amended order on September 7, 2004, denying Home Depot’s motion to strike as moot. Home Depot argues on cross-appeal that the affidavit should have been stricken for the following reasons: (1) the affidavit failed to contain the phrase that is was based upon personal knowledge; (2) there was no interpreter’s certificate accompanying the affidavit; and (3) the affidavit was made in bad faith.

¶ 17. Although Rod stated in her affidavit that she tripped on a pallet and fell to the floor, she testified on numerous occasions during her deposition that she did not remember what caused her to fall. It is well-established that a “nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Coleman v. Smith, 914 So.2d 807, 813(¶ 15) (Miss.Ct.App.2005) (quoting Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989)). Rod’s affidavit directly contradicts her deposition testimony. Consequently, we agree with the trial court’s ruling that Home Depot’s motion to strike was moot, as Rod’s affidavit had no practical effect on its determination of the motion for summary judgment. Therefore, we find this assignment of error to be without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED ON BOTH THE DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR.


author: WOODALL, Justice.

text:
    CITY OF HOMEWOOD v. BHARAT, LLC, d/b/a Howard Johnson’s Express Inn, and Greater Birmingham Lodging Association.
    1040712.
    Supreme Court of Alabama.
    Sept. 30, 2005.
    Rehearing Denied Dec. 16, 2005.

      Michael G. Kendrick and Brent G. Grainger of Vines & Waldrep, LLC, Birmingham, for appellant.
    Alton B. Parker, Jr., of Spain & Gillon, L.L.C., Birmingham, for appellees.
   WOODALL, Justice.

The City of Homewood (“the City”) appeals from a judgment declaring invalid the City’s Ordinance No. 2226 (“the ordinance”), which levied a “lodgings tax” of 6% for the privilege of furnishing accommodations within the City. We reverse that judgment and render a judgment for the City.

I. Factual Background

The ordinance, which was adopted on November 22, 2004, provides, in pertinent part:

“Section 1. That Sections One and Two of Ordinance 1969 previously adopted on November 17, 1997, and as codified as Section 6-131, entitled ‘Levy of Tax’ of Article VII entitled ‘Hotel/Motel Tax’ of Chapter 6, entitled ‘Business Licenses, Taxes and Regulations’ of the Code of Ordinances of the City of Home-wood is hereby amended to read as follows:
“Sec. 6-131
“For the privilege of engaging or continuing, within the city, in the business activities hereinafter referred to, there is hereby levied and imposed, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amounts to be determined by the application of rates against gross receipts upon every person, firm, or corporation engaging in the business of renting or furnishing any room or rooms, lodgings, or accommodations to transients in any hotel, motel, inn, tourist camp, tourist cabin or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration in an amount to be determined by the application of the rate of six (6) percent of the charge for such room, rooms, lodgings, or accommodations, including the charge for use or rental of personal property and services furnished in such room. The tax shall not apply to rooms, lodgings or accommodations supplied for a period of thirty (30) continuous days or more in any place.”

(Emphasis added.) The ordinance, which took effect on January 1, 2005, doubled the rate of the lodgings tax that was in effect before that date.

As of the effective date of the ordinance, the legislature had enacted Act No. 2001-546 (May 18, 2001), a local act that, according to its title, was enacted to “provide for the levy of an additional three percent lodgings tax in Jefferson County to be used by the Birmingham-Jefferson Civic Center Authority for the support of the operation of the authority, including ... capital expansion, renovation, and maintenance; and to provide for a limitation on the tax.” (Emphasis added.) Specifically, Act No. 2001-546 provides, in pertinent part:

“Section 1. In addition to all other taxes imposed by law, there is hereby levied an additional privilege or license tax in the amount hereinafter prescribed against any person, organization, or other entity engaging in the county in the business of renting or furnishing any room or rooms, lodgings, or accommodations, in any hotel, motel, inn, tourist court, or any other place in which rooms, lodgings, or accommodations are regularly furnished for a consideration. The amount of the taxes levied by this act shall be equal to three percent of the charge for such rooms, lodgings, or accommodations ....
“Section 2. All amounts collected within Jefferson County pursuant to this act shall be allocated to the Birmingham-Jefferson Civic Center Authority, established by Act No. 547, H. 1176 of the 1965 Regular Session, and shall be used for the support of the operation of the authority, including, but not limited to, capital expansion, renovation, and maintenance.
“Section 7. Notwithstanding any other provision of law to the contrary, the total amount of all lodging taxes levied in Jefferson County shall not exceed Ik percent.”

(Emphasis added.)

On December 29, 2004, a complaint challenging the ordinance was filed by Bharat, LLC, d/b/a Howard Johnson’s Express Inn, on its own behalf and on behalf of all other similarly situated taxpayers, and by the Greater Birmingham Lodging Association, “an Alabama non-profit corporation, on its own behalf and on the behalf of the members of the Greater Birmingham Lodging Association located within the City of Homewood” (hereinafter collectively referred to as “Bharat”). The complaint named the City as the defendant and averred that “[t]he additional lodging taxes violate the cap on lodging taxes imposed by [Act No. 2001-546, § 7].” (Emphasis added.) The complaint further averred- that the ordinance raised “the lodging tax levied and collected in the City of Homewood to a total of seventeen percent (17%), which amount exceeds the cap mandated by [Act No. 2001-546, § 7] by three percent (3%).” The complaint sought a judgment declaring the ordinance void as violating Act No. 2001-546, § 7, and enjoining the City “from collecting the additional lodging taxes pursuant to the ordinance.”

The City answered the complaint and asserted a counterclaim challenging the constitutionality of Act No. 2001-546, or, in the alternative, its applicability to the City. More specifically, the City averred that the ordinance was authorized by a “general law,” namely, Ala.Code 1975, §§ 11-51-202(b) and -205(a), parts of the Local Tax Simplification Act of 1998 (“the Simplification Act”). Those sections provide, in pertinent part:

“[§ ll-51-202(b) ] The governing body of any municipality within the State of Alabama may provide by ordinance for the levy and assessment of a privilege or license tax in the nature of a lodgings tax, parallel to the state levy and assessment of the privilege or license tax as levied by Chapter 26 of Title 40, except where inapplicable or where otherwise provided by this article.”
“[§ ll-51-205(a) ] The governing body of a municipality levying or assessing taxes authorized by this article may provide by ordinance for the rate of the tax.”

(Emphasis added.)

The crux of the City’s counterclaim is that the ordinance “is provided for by a general law,” within the meaning of Ala. Const. 1901, § 105, which states:

“No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law, or when the relief sought can be given by any court of this state; and the courts, and not the legislature, shall judge as to whether the matter of said law is provided for by a general law, and as to whether the relief sought can be given by any court; nor shall the legislature indirectly enact any such special, private, or local law by the partial repeal of a general law.”

(Emphasis added.) The City alleged that if Act No. 2001-546, § 7, is construed to limit the amount of lodgings taxes a municipality located in Jefferson County might levy, it represents an improper attempt by the legislature to change a general law by a local act. Thus, the City sought a judgment declaring that § 7 of Act No. 2001-546, to the extent it applies to municipalities, violates § 105 of the Alabama Constitution and is therefore void.

The case was tried on stipulated facts. On January 13, 2005, the trial court entered a judgment holding (1) that Act No. 2001-546 applied to municipalities located in Jefferson County; (2) that Act No. 2001-546, § 7, did not violate § 105 of the Alabama Constitution; and (3) that the ordinance was subject to — and violated— the tax limitation in Act No. 2001-546, § 7.

The City moved to alter, amend, or vacate the judgment. After the trial court denied that motion, the City timely appealed, presenting two dispositive legal issues: (1) whether Act No. 2001-546, § 7, applies to municipalities located in Jefferson County, and, if so, (2) whether the tax limitation in § 7 violates § 105 of the Alabama Constitution.

II. Discussion

It is undisputed that the Simplification Act is a “general law,” see Ala. Const. 1901, § 110 (“[a] general law ... is a law which applies to the whole state”), and that Act No. 2001-546, which pertains only to Jefferson County is a “local law,” see § 110 (“a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole”). The Alabama Constitution does not prohibit the passage of local acts to address the needs of discrete political subdivisions. Miller v. Marshall County Bd. of Educ., 652 So.2d 759, 761 (Ala.1995). “ ‘It is only when those local needs already have been responded to by general legislation that § 105 of our state Constitution prohibits special treatment by local law.’ ” 652 So.2d at 761 (quoting Peddycoart v. City of Birmingham, 354 So.2d 808, 815 (Ala.1978)).

A. Scope of the Local Act

The scope of Act No. 2001-546, § 7, is a threshold issue. This is so, because the sole basis for Bharat’s claims is its contention that § 7 applies to the City. Bharat insists that the tax authorized by the ordinance exceeds by 3% the 14% tax limitation contained in § 7 of Act No. 2001-546. Bharat contends, in other words, that § 7 caps the amount of lodgings taxes the City may levy, and that the lodgings taxes authorized by the ordinance exceeded the § 7 cap. Thus, if § 7 does not even apply to the City, then there is no basis for Bharat’s challenge to the ordinance, the trial court erred in holding that the ordinance violated Act No. 2001-546, and the constitutional issue asserted in the City’s counterclaim is moot.

“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court’s conclusions.” Pitts v. Gangi, 896 So.2d 438, 434 (Ala.2004). See also Donnelly v. Doak, 346 So.2d 414 (Ala.1977); Phenix City Bd. of Educ. v. Teague, 515 So.2d 971 (Ala.Civ.App.1987). Moreover, we are obliged to construe statutes so as to avoid conflicts with constitutional provisions if possible. James v. Todd, 267 Ala. 495, 505, 103 So.2d 19, 27 (1957) (“[w]here a statute is capable of two constructions, one which renders it [constitutionally] valid and the other invalid, the construction which will uphold its validity must be adopted”). Nevertheless, this Court is also bound to construe statutes according to their plain meaning. Underwood v. Medical Clinic Bd. for City of Montgomery, 904 So.2d 264, 267-68 (Ala.2004).

Bharat insists that “the limitation contained in Section 7 of [Act No. 2001-546] applies to municipalities in Jefferson County, including the City of Homewood.” Bharat’s brief, at 34. Indeed, § 7 states: “Notwithstanding any other provision of law to the contrary, the total amount of all lodging taxes levied in Jefferson County shall not exceed 14 percent.” (Emphasis added.) On its face, Act No. 2001-546, therefore, plainly applies to lodgings taxes assessed by municipalities located within Jefferson County, including the City.

Moreover, Bharat points out that the lodgings-tax burden in Jefferson County before the imposition of the tax authorized by the ordinance is 11%, the product of a general act and five local acts. See Ala. Code 1975, § 40-26-1 (4% to be “deposited in the State Treasury,” § 40-26-20); Act No. 2001-546 (3% to be “allocated to the Birmingham-Jefferson Civic Center Authority”); Act No. 95-783, a local act (1% to be “allocated to the Greater Birmingham Convention and Visitors Bureau”), as amended by Act No. 97-273, a local act; Act No. 79-126, a local act (1% to be “allocated to the Greater Birmingham Convention and Visitors Bureau”); and Act No. 794, Ala. Acts 1969, a local act (1% to be paid to Greater Birmingham Convention and Visitors Bureau); and Act No. 525, Ala. Acts 1965, a local act (1% to be paid to the Birmingham-Jefferson Civic Center Authority). It is undisputed that counties have no authority to levy a lodgings tax. It is similarly undisputed that municipalities do have authority to levy a lodgings tax, pursuant to § ll-51-202(b). Thus, Bharat contends, the only rational interpretation of § 7 is that it applies to the only entities in Jefferson County with the statutory authority to levy lodgings taxes — municipalities. We agree, and we conclude that the trial court did not err in holding that the limitation on lodgings taxes in Act No. 2001-546, § 7, applies to municipalities located in Jefferson County. This conclusion necessarily requires us to consider whether Act No. 2001-546, § 7, violates § 105 of the Alabama Constitution.

B. Alabama Constitution §105

Section 105 of the Alabama Constitution prohibits the passage of local laws purporting to regulate matters that are “provided for by a general law.” A matter is “provided for by a general law” within the meaning of § 105 if the “subject [of the local act] is already subsumed by [a] general statute.” Peddycoart, 354 So.2d at 813. The City contends that Act No. 2001-546, § 7, is “subsumed” by §§ 11 — 51— 202(b) and -205(a). “The subject of a local law is deemed to be ‘subsumed’ in a general law if the effect of the local law is to create a variance from the provisions of the general law.” Opinion of the Justices No. 342, 630 So.2d 444, 446 (Ala.1994) (emphasis added); see also Crandall v. City of Birmingham, 442 So.2d 77, 80 (Ala.1983).

Applying these principles in Opinion of the Justices No. 342, the Justices considered the likely constitutionality of House Bill No. 42 (“H.B. 42”), a proposed local act applicable to the housing of prisoners by the sheriff of Escambia County. 630 So.2d at 444-45. H.B. 42, § 2, provided:

“ ‘The Sheriff of Escambia County is authorized to operate a jail store and contract telephone installation for inmates within the confines of the county jail. The jail store and inmate telephones shall be operated to serve the needs of the county jail population. The sheriff is further authorized to contract housing of federal, municipal, and county prisoners other than Escambia County prisoners'

630 So.2d at 445 (emphasis added). The following dispositive question was posed to the Justices by the House of Representatives:

“ ‘Under Section 14-6-3, Code of Alabama 1975, a jail is required to be used for the confinement of all persons committed to it by authority of law. Section 14-6-4, Code of Alabama 1975, requires' a sheriff ■ to receive into custody any person committed under any criminal charge or offense against the United States. Do these sections subsume the law regarding the housing of prisoners in a county jail and is a local law permitting the sheriff to contract housing for prisoners in conflict with the general law in violation of Section 105 of the Constitution of Alabama of 1901?’ ”

630 So.2d at 445 (emphasis added).

Of specific concern to the Justices was the following provision in § 2 of H.B. 42: “The sheriff [of Escambia County] is further authorized to contract housing of federal, municipal, and county prisoners other than Escambia County prisoners.” Comparing the proposed local act with the applicable general statutes, Ala.Code 1975, §§ 14-6-3 through -6, the Justices concluded that § 2 of H.B. 42 “would create a variance from the provisions in [those] statutes insofar as they apply to Escambia County” and would, therefore, violate § 105. 630 So.2d at 447 (emphasis added). In so doing, the Justices explained:

“Ala.Code 1975, §§ 14-6-3 through -6, are general statutes regulating the ‘housing of prisoners in a county jail.’ ... Those sections provide:
“§ 14-6-3 ‘In addition to convicts sentenced to imprisonment in the county jail, the jail is used as a prison for the safekeeping or confinement of the following persons:
“ ‘(1) Persons committed for trial for public offenses;
“ ‘(2) Convicts sentenced to imprisonment in the penitentiary, until their removal thereto;
“ ‘(3) Persons committed for contempt or on civil process;
“ ‘(4) Persons committed on failure to give security for their appearance as witnesses in any criminal case;
“ ‘(5) Persons charged with, or convicted of, a criminal offense against the United States;
“ ‘(6) Insane persons, pending transfer to a mental hospital or other disposition; and
“ ‘(7) All other persons committed thereto by authority of law.’
“§ 14-6-4 ‘The sheriff or jailer must, if the jail of the county is sufficient, receive into his custody any person committed under any criminal charge or offense against the United States and safely keep such prisoner, according to the order or process of commitment, until duly discharged by law; and he is liable to the same penalties for the escape of such prisoner as for the escape of a prisoner committed under the authority of this state.’
“§14-6-5 ‘Any jailer or other officer who willfully refuses to receive into his custody any person lawfully committed thereto on any criminal charge or conviction must, on conviction, be fined not more than $500.00.’
“§ 14-6-6 ‘In all criminal cases, either before or after conviction, and in cases of contempt, if it is shown to the court, judge or committing magistrate that the jail of the proper county is insecure or insufficient for the safekeeping of the prisoner or that there is no jail in the county, the commitment must be to the nearest sufficient jail and the reason of such change must be entered on the minutes of the court, or stated in the warrant or endorsed thereon and signed by the magistrate. The jailer of the county to which the commitment is made must receive and confine the prisoner on such commitment or a certified copy of such order.’
“(Emphasis added.)
“... Sections 14-6-3 through -6 require Escambia County officials summarily, under the threat of criminal penalties, to provide accommodations for designated persons other than those ‘sentenced to imprisonment in the county jail,’ § 14-6-3. These persons include federal prisoners, § 14-6-3(5) and § 14-6-4; and prisoners from other counties, § 14-6-3(7) and § 14-6-6. The last sentence of H.B. 42, § 2, authorizing Escambia County ‘to contract housing of federal, municipal, and county prisoners other than Escambia County prisoners’ (emphasis added), would transform Escambia County’s duty to house such persons from one that is unqualified and mandatory to one that is contingent upon the payment of a fee. Because that portion of H.B. 42 would create a variance from the provisions of general statutes, particularly §§ 14-6-3 through -6, we must conclude that the subject of that portion of H.B. 42 is, indeed, ‘subsumed’ by those statutes.
“We conclude, therefore, that the last sentence of the proposed local act, H.B. 42, § 2, would violate § 105 of the Alabama Constitution.”

630 So.2d at 446-47.

Regarding the validity of the 14% cap contained in § 7 of Act No. 2001-546, the parties agree that the only limitation on the amount of lodgings taxes municipalities located in Jefferson County may levy is contained in § 7 of the local act. In that connection, Bharat states: “Homewood argues that pursuant to [§§ ll-51-202(b) and -205(a)], it has unlimited discretion to determine a lodging tax rate to be collected within Homewood. In the absence of the limitation contained in Act 2001-516, that would be true.” Bharat’s brief, at 8 (emphasis added).

On the undisputed facts of this case, we are compelled to conclude, as did the Justices in Opinion of the Justices No. 312, that the local act creates a variance from the general act. In that case, the proposed local act purported to grant discretion as to certain duties where the general acts provided that those duties were mandatory. In this case, the local act purports to limit the discretion of municipalities in levying a lodgings tax, while the general act specifically grants that discretion. Section 7 necessarily changes the result that would obtain without its application. In effect, the legislature has purported to cap by use of local law a tax authorized by a general law. This the constitution will not permit.

Indeed, if the constitution did permit it, the legislature could, by a local act, entirely eliminate the City’s right to levy lodgings taxes, despite the unqualified right granted to it in the general act. For example, under the current taxation scheme, the State of Alabama receives, pursuant to a general act, lodgings taxes at a rate of 4%; the Birmingham-Jefferson Civic Center Authority receives, pursuant to two local acts, 4%; and the Greater Birmingham Convention and Visitors Bureau receives, pursuant to three local acts, 3%. This scheme thus limits municipalities located in Jefferson County to lodgings taxes of 3% they can levy for their own use (14%, as capped by § 7 of Act No. 2001-546, minus 11%). If the legislature should pass another local act allocating the 3% that remains under the 14% cap of Act No. 2001-546, § 7, to, for example, the Birmingham-Jefferson Civic Center Authority or the Greater Birmingham Convention and Visitors Bureau, then Jefferson County municipalities would be, assuming the validity of Act No. 2001-546, § 7, prohibited from levying any amount of lodgings tax for their own use. This would be true notwithstanding the clear grant of taxation authority in § 11 — 51— 202(b).

Bharat relies on the last clause of § 11-51-202(b) — “except where inapplicable or where otherwise provided by this article.” (Emphasis added.) Bharat states:

“Accordingly, the authority of any municipality, including the City of Home-wood, to levy a lodgings tax is subject to the limitation that it may not be levied where that authority may be inapplicable as a result of requiring compliance with applicable local tax laws, such as Act 2001-5⅛6. [Section ll-51-202(b)] does not give Homewood unbridled discretion to levy a lodgings tax in excess of a limitation compelled by an applicable local tax law such as Act 2001-546.”

Bharat’s brief, at 9-10 (emphasis added). Bharat construes the last clause of § 11-51-202(b) as reserving an exception to the general law for any local laws the legislature might pass, or has passed, on the subject “provided for by [that] general law.” § 105.

We disagree with this construction. The meaning of the phrase “except where inapplicable” is discussed in § 11-51-200:

“The phrase ‘except where inapplicable,’ contained herein and in Sections 11 — 51— 201, 11-51-202, and 11-51-203, shall not be construed to permit a self-administered municipality to adopt or interpret an ordinance, resolution, policy, or practice that relies on that phrase, either directly or indirectly, in order to disavow, disregard, or attempt to disavow or disregard the mandate provided in this and the following sections for conformity with the corresponding state tax levy, unless the self-administered municipality can demonstrate that the ordinance, resolution, policy, or practice will simplify collection or administration of the tax or is being made for the convenience of the taxpayer.”

(Emphasis added.) Thus,.the phrase has in view “procedural tax collection and administration issues,” the City’s reply brief, at 6, in addition to “the corresponding state tax lev[ies]” to which the taxing powers in the Simplification Act are expressly linked. For example, the taxation authorization in § ll-51-202(b) is made “parallel to the state levy” in § 40-26-1. Section 40-26-1 provides, in pertinent part:

“(a) There is levied and imposed, in addition to all other taxes of every kind now imposed by law, a privilege or license tax upon every person, firm, or corporation engaging in the business of renting or furnishing any room or rooms, lodging, or accommodations to transients in any hotel, motel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration, in any county which is located in the geographic region comprising the Alabama mountain lakes area, those being Blount, Cherokee, Colbert, Cullman, DeKalb, Etowah, Franklin, Jackson, Lauderdale, Lawrence, Limestone, Madison, Marion, Marshall, Morgan, and Winston, in an amount to be determined by the application of the rate of five percent of the charge for such room, rooms, lodgings, or accommodations, including the charge for use or rental of personal property and services furnished in such room, and the rate of four percent of the charge in every other county. There is exempted from the tax levied under this chapter any rentals or services taxed under Division 1 of Article 1 of Chapter 28 of this title.
(b) “The tax shall not apply to rooms, lodgings, or accommodations supplied: (i) For a period of 180 continuous days or more in any place; (ii) by camps, conference centers, or similar facilities operated by nonprofit organizations primarily for the benefit of, and in connection with, recreational or educational programs for children, students, or members or guests of other nonprofit organizations during any calendar year; (iii) in connection with the production of an approved project authorized by the Alabama Film Office and which meets criteria established by the Alabama Film Office through the Alabama Administra-five Procedure Act; or (iv) by privately operated camps, conference centers, or similar facilities that provide lodging and recreational or educational programs exclusively for the benefit of children, students, or members or guests of nonprofit organizations during any calendar year.”

(Emphasis added.)

Subsections (a) and (b) of § 40-26-1 contain numerous exemptions and exceptions to the applicability of the State lodgings tax, each of which qualifies the taxation authority granted to municipalities in § 11 — 51—202(b). This is so because the taxes authorized by § ll-51-202(b) must “parallel” those levied by the State in § 40-26-1. See also § 11-51-203 (making “[a]ll taxes levied or assessed by any municipality pursuant to the provisions of Section 11-51-202 ... subject to all definitions, exceptions, exemptions, proceedings, requirements, provisions, rules and regulations promulgated under the Alabama Administrative Procedure Act, direct pay permit and drive-out certificate procedures, statutes of limitation, penalties, fines, punishments, and deductions for the corresponding state tax”). Thus, the phrase “except where inapplicable” does not afford, as Bharat contends, a means to circumvent § 105.

III. Conclusion

In conclusion, we hold that Act No. 2001-546, § 7, to the extent it limits the amount of lodgings taxes municipalities located in Jefferson County may levy pursuant to § ll-51-202(b), violates § 105 of the Constitution of Alabama, and is, therefore, invalid. The ordinance is valid and enforceable as of its effective date of January 1, 2005. Because the trial court erred in holding that the ordinance was invalid and in entering a judgment in favor of Bharat, that judgment is reversed and a judgment rendered in favor of the City as to all claims asserted against it by Bharat.

REVERSED AND JUDGMENT RENDERED.

SEE, LYONS, HARWOOD, STUART, and SMITH, JJ., concur.

NABERS, C.J., and BOLIN and PARKER, JJ., dissent.


author: NABERS, Chief Justice.

text:
    SOUTHTRUST BANK OF ALABAMA, N.A. v. WEBB-STILES COMPANY, INC.
    1040827.
    Supreme Court of Alabama.
    Oct. 21, 2005.
    Rehearing Denied Dec. 16, 2005.

      Scott Burnett Smith of Bradley Arant Rose & White, LLP, Huntsville; and Stewart M. Cox of Bradley Arant Rose & White, LLP, Birmingham, for appellant.
    Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellee.
   NABERS, Chief Justice.

SouthTrust Bank of Alabama, N.A. (“SouthTrust”), appeals from an order of the Etowah Circuit Court granting a preliminary injunction preventing SouthTrust from honoring a letter of credit. See Ala. R.App. P. 4(a)(1). Because the trial court exceeded its discretion in granting the injunction, we reverse and remand with instructions to dissolve the injunction.

I. Facts

In 1995, the Airport Authority of India (“AAI”) retained Transact International, Inc. (“Transact”), a Connecticut corporation, to build a cargo-handling facility at the Indira Gandhi International Airport in New Delhi, India. The contract between AAI and Transact (“the contract”) included forum-selection and choice-of-law provisions requiring that any disputes related to the contract be resolved in New Delhi and according to Indian law. Webb-Stiles Company, Inc. (“Webb-Stiles”), a manufacturer of conveyor systems with a place of business in Gadsden, Alabama, was one of Transact’s subcontractors on the airport project.

In connection with the contract, AAI and Transact joined with SouthTrust and the State Bank of India (“SBI”) in a so-called four-way security arrangement. First, SBI agreed to guarantee Transact’s performance to AAI. In return, SBI required that Transact obtain an irrevocable standby letter of credit in favor of SBI. Webb-Stiles helped Transact obtain the letter of credit from SouthTrust.

On November 13, 1996, South-Trust issued its letter of credit no. SB9937 (“the letter of credit”) in the amount of $175,661. Transact signed the letter of credit as applicant, and Webb-Stiles signed as surety for Transact’s obligation to reimburse SouthTrust for any payment made under the letter of credit. Although the letter of credit was originally to expire on September 30, 1998, the parties extended it to January 31, 2005.

Between 1999 and 2004, AAI and Transact became involved in a dispute over whether Transact had satisfied its obligations under the contract. By late 2004, the parties were still unable to resolve their differences, and AAI decided to look to its performance guarantee from SBI. On December 10, 2004, SBI notified South-Trust that AAI had made a demand for the full amount of the performance guarantee ($175,661). In turn, SBI immediately made a demand on the letter of credit in the same amount.

Under its terms the letter of credit is payable by SouthTrust upon SouthTrust’s receipt of a proper demand from SBI. It is undisputed that SBI’s demand conformed to the requirements of the letter of credit.

Webb-Stiles sued to enjoin SouthTrust from honoring the letter of credit, claiming that AAI had fraudulently misrepresented its right to make demand against the SBI performance guarantee. After hearing testimony, the trial court found that AAI’s cost to remedy any remaining deficiencies under the contract would not exceed $10,000 and that AAI itself owed Transact $158,000. As a result, the court found AAI’s claim that Transact was materially in default under the contract to be fraudulent.

As a prerequisite to issuing an injunction, the trial court had to determine whether Webb-Stiles had an adequate remedy at law. It did so on the basis of a written statement that AAI submitted to the court, asserting that the contract required Webb-Stiles to pursue any claim against AAI in an Indian court and under Indian law. In its statement, AAI also asserted that Indian law would deny Webb-Stiles a remedy.

The trial court accepted AAI’s statement as true and concluded that Webb-Stiles had no adequate remedy at law. It granted Webb-Stiles a preliminary injunction against SouthTrust, preventing payment on the letter of credit. This appeal followed.

II. Standard of Review

The decision to grant or to deny a preliminary injunction is within the trial court’s sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion. E.g., Johnson v. Willis, 893 So.2d 1138, 1140 (Ala.2004).

As enacted in Alabama, the Uniform Commercial Code grants a trial court the power to enjoin payment of a letter of credit to prevent fraud:

“If an applicant claims that a required document is forged or materially fraudulent or that honor of the presentation would facilitate a material fraud by the beneficiary on the issuer or applicant, a court of competent jurisdiction may temporarily or permanently enjoin the issuer from honoring a presentation.... ”

§ T — 5—109(b), Ala.Code 1975. Before enjoining payment, however, the court must find that “all of the conditions to entitle a person to [injunctive] relief under the law of this state have been met.” § 7-5-109(b)(3), Ala.Code 1975.

A preliminary injunction may issue only when the party seeking the injunction demonstrates

“‘(1) that without the injunction the [party] would suffer irreparable injury; (2) that the [party] has no adequate remedy at law; (3) that the [party] has at least a reasonable chance of success on the ultimate merits; and (4) that the hardship imposed on the [party opposing the preliminary injunction] by the injunction would not unreasonably outweigh the benefit accruing to the [party seeking the injunction].’ ”

Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003)(quoting Perley v. Tapscan, Inc., 646 So.2d 585, 587 (Ala.1994)). This Court has stated that “[i]rreparable injury is injury that cannot be adequately compensated for by damages at law.” Benetton Servs. Corp. v. Benedot, Inc., 551 So.2d 295, 299 (Ala.1989). A plaintiff that can recover damages has an adequate remedy at law and is not entitled to an injunction. Id. The party seeking an injunction has the burden of demonstrating that it lacks an adequate remedy. Ormco Corp., 869 So.2d at 1113.

III. Analysis

In this case, Webb-Stiles has failed to satisfy its burden of proving the second element necessary for a preliminary injunction to issue — -that it lacks an adequate remedy at law. See Part III.B., infra. The trial court therefore exceeded its discretion in granting the injunction.

Although Webb-Stiles’s failure to prove this element is sufficient to decide the case, the Court further recognizes the importance of narrow application of the fraud exception of § 7-5-109(b). The Court will therefore briefly review Alabama’s approach to the issuance of injunctions in letter-of-credit cases.

A. The commercial importance of letters of credit alloios courts to enjoin payment only in extraordinary circumstances.

In Southern Energy Homes, Inc. v. Am-South Bank of Alabama, 709 So.2d 1180 (Ala.1998), a case that was factually similar to this case, this Court thoroughly analyzed an effort to enjoin payment of a letter of credit issued by an Alabama bank in connection with a foreign construction contract. In that case, Gesellschaft fur Bauen and Wohnen Hannover (“GBH”), a German corporation, had entered into a construction contract with Southern Energy. The contract provided that German law would govern any disputes arising under the contract and that Hannover would be the appropriate venue for any litigation. Deutsche Bank issued a performance guarantee in favor of GBH as security for Southern Energy’s performance of the contract, conditioned on the issuance of a standby letter of credit. AmSouth then issued a letter of credit to Deutsche Bank. The terms of the letter of credit authorized Deutsche Bank to draw upon the credit upon notification that Deutsche Bank was required by GBH to disburse any amount under the performance guarantee.

Southern Energy and GBH became involved in a contract dispute, and GBH eventually decided to exercise its rights under the performance guarantee. The next day, Deutsche Bank presented Am-South with a demand for payment. Am-South informed Southern Energy that it would honor the demand, and Southern Energy sought to enjoin payment. Like Transact in this case, Southern Energy denied that it had materially breached the contract and characterized GBH’s demand for payment on the letter of credit as fraudulent.

In response, GBH argued that Am-South’s obligation to pay under the terms of the letter of credit was independent of Southern Energy’s contractual obligations and that, except in extremely rare circumstances, courts should not enjoin payment on a letter of credit. GBH also argued that Southern Energy failed to demonstrate irreparable injury.

In Southern Energy, this Court clearly set forth the principles governing international letters of credit:

“Parties that enter into a credit arrangement do so to avail themselves of the benefits of that arrangement. Shifting litigation costs is one of the functions of a standby credit. In this situation, the parties negotiate their relationship while bearing in mind that litigation may occur. This cost-shifting function gives one party the benefit of the money in hand pending the outcome of any litigation. It is important to understand the functions of letters of credit in order to fully understand the consequences the fraud exception has on this commercial device. A demand for payment made upon a standby credit usually indicates that something has gone wrong in the contract. Indeed, this is the nature of the standby letter of credit. In contrast to the commercial credit, nonperformance that triggers payment in a standby credit situation usually indicates some form of financial weakness by the applicant. For this reason, parties choose this security arrangement over another so that they may have the benefit of prompt payment before any litigation occurs. We recognize that, as a general rule, letters of credit cannot exist without independence from the underlying transaction. Thus, when courts begin ‘delving into the underlying contract, they are impeding the swift completion of the credit transaction. ‘The certainty of payment is the most important aspect of a letter of credit transaction, and this certainty encourages hesitant parties to enter into transactions, by providing them with a secure source of credit.’
“The extensive use of the fraud exception may operate to transform the credit transaction into a surety contract. A standby credit is essentially equivalent to a loan made by the issuing bank to the applicant. Like a surety contract, the standby credit ensures against the applicant’s nonperformance of an obligation. Unlike a surety contract, however, the beneficiary of the standby credit may receive its money first, regardless of pending litigation with the applicant. The applicant may then sue the beneficiary for breach of contract or breach of warranty, or may sue in tort, but without the money. Parties to standby credit transactions have bargained for a distinct and less expensive kind of credit transaction. Therefore, we resist the temptation that the fraud exception invites to ‘transform the quick, efficient payment mechanism of the standby credit into the protracted surety contract inquiry.’

709 So.2d at 1185-86 (citations omitted; emphasis added).

In Southern Energy, this Court went on to say that the parties to a letter-of-credit transaction “bargain for the advantages and disadvantages of credit” and “recognize its functions and negotiate its terms.” 709 So.2d at 1187. The Court concluded that “to invoke the fraud exception [to payment of the letter of credit] would require an inquiry into the underlying contract” and that “ ‘[f]raud claims should not become surrogates for breach of contract claims.’ ” 709 So.2d at 1187. The Court’s analysis was based on the danger of “disrupting the important commercial functions of credit law.” 709 So.2d at 1187.

After setting forth these principles, and in light of the Court’s reluctance to disrupt “the important commercial functions” of the letter of credit, the Court held that it would not address the merits of a claim of fraud in a letter-of-credit transaction when the plaintiff has an adequate remedy at law and will not suffer irreparable harm upon payment of the letter of credit.

“Assuming that GBH had no legitimate basis to draw upon the bank guarantee, Southern Energy could sue in a German court to recover its money for the alleged fraud. Where an adequate legal remedy exists, Southern Energy will not suffer imminent or irreparable harm. Therefore, because Southern Energy did not satisfy the elements necessary for injunctive relief, it is unnecessary for us to further address the [fraud] issue.... ”

709 So.2d at 1188 (citation omitted). Applying the same analysis to the instant case, the Court concludes that Webb-Stiles has likewise failed to satisfy the elements necessary for injunctive relief.

B. Webb-Stiles is not entitled to a preliminary injunction because it has an adequate remedy at law.

If Transact were the plaintiff in the action underlying this appeal, the case would be essentially identical to Southern Energy. The Court’s inquiry would then focus first on whether Transact had an adequate remedy at law in an Indian court. Although in this case it is a surety that is seeking the injunction, our analysis is the same. Webb-Stiles’s only alleged loss is monetary. Because it has an adequate remedy at law, Webb-Stiles has not established that it is entitled to a preliminary injunction.

When a surety satisfies the principal’s obligation, it is entitled to reimbursement or restitution from the principal:

“Principal-surety relationships are similar to master-servant or principal-agent relationships because in both cases a principal, master, or one acting as surety may recover from his agent, servant, or principal, respectively, once the underlying liability or obligation is paid.... This right of indemnity is usually founded on an implied right or legal duty.”

Alabama Kraft Co. v. Southeast Alabama Gas Dist., 569 So.2d 697, 700 (Ala.1990). Alabama law thus recognizes Webb-Stiles’s right to recover from Transact to the extent that it must satisfy Transact’s obligation.

Webb-Stiles’s duty to reimburse South-Trust arises solely out of Webb-Stiles’s position as surety for Transact. If Webb-Stiles must pay that obligation, it has the remedy against Transact that it accepted when it became Transact’s surety. This remedy is not subject to the choice-of-law and forum-selection clauses in the contract. Webb-Stiles can sue Transact in an American court to recover any money it must pay on Transact’s behalf.

Like the plaintiff in Southern Energy, Webb-Stiles has failed to show that it lacks an adequate remedy at law. Because this fact is dispositive, the Court does not need to address whether Webb-Stiles met its burden of proving fraud in the transaction.

TV. Conclusion

Webb-Stiles can sue Transact for damages for any loss it suffers as a result of its obligation to reimburse SouthTrust. The trial court therefore exceeded its discretion by enjoining payment of the letter of credit.

The order of the trial court is reversed, and the case is remanded with instructions to dissolve the preliminary injunction.

REVERSED AND REMANDED WITH INSTRUCTIONS.

SEE, HARWOOD, STUART, and BOLIN, JJ., concur.

      . This type of arrangement is typical of international standby-letter-of-credit transactions. Southern Energy Homes, Inc. v. AmSouth

        Bank of Alabama, 709 So.2d 1180, 1185 (Ala.1998).

      .A letter of credit is a financing arrangement in which the issuing bank, at the request of an applicant, agrees to honor demands for payment by the beneficiary of the credit, provided the terms and conditions of the letter of credit are met. The standby letter of credit is used to guarantee performance of the applicant's obligation to the beneficiary. The issuing bank promises that if the applicant defaults on that obligation, the issuing bank will pay the beneficiary an amount of money secured by the letter of credit. In order to obtain payment, the beneficiary must notify the issuing bank, in the manner agreed upon in the letter of credit, of its intent to draw upon the credit. Southern Energy Homes, 709 So.2d at 1184-85; see also Ala.Code 1975, § 7-5-102(10).

      . Although the letter of credit uses the term "guarantor,” Webb-Stiles is actually a surety. A surety is jointly and severally liable with the principal on the underlying obligation. National American Ins. Co. v. Boh Bros. Constr. Co., 700 So.2d 1363, 1366 (Ala.1997). When distinguishing between contracts of surety-ship and guaranty, this Court looks to the substance of the obligation, not to the terms used by the parties. See Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655 (1914).

      . The dispute between Transact and AAI was unrelated to Webb-Stiles’s performance as a subcontractor.

      . AAI was named as a defendant in the underlying action. It did not appear in the trial court, instead submitting the written statement, in which it denied both that it was subject to personal jurisdiction in the trial court and that it was liable to Webb-Stiles. AAI is a not a party to this appeal.

      . The importance of avoiding inquiry into the underlying contract creates a heavy burden for the party seeking to invoke the fraud exception in a letter-of-credit arrangement. "The 'fraud in the transaction' exception is available only where the beneficiary’s conduct has 'so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served.' ” Itek v. First Nat’l Bank of Boston, 730 F.2d 19, 25 (1st Cir.1984) (quoting Roman Ceramics Corp. v. Peoples Nat’l Bank, 714 F.2d 1207, 1212 n. 12 (3d Cir.1983)).

      . See also Restatement (Third) of Suretyship and Guaranty § 22 (1996)("[W]hen the principal obligor is charged with notice of the secondary obligation it is the duty of the principal obligor to reimburse the secondary obli-gor to the extent that the secondary obligor ... performs the secondary obligation....").

      . Because this factor is dispositive, the Court need not consider SouthTrust’s other arguments, including 1) the availability of a remedy under Indian law, 2) the effect on this transaction of the Uniform Customs and Practice for Documentaiy Credits, 3) whether AAI's alleged fraud falls within the scope of § 7 — 5—109(b), 4) whether the common law provides a separate cause of action for relief in non-UCC letter-of-credit cases, and 5) whether Webb-Stiles contractually waived its right to injunctive relief.