text:
    Ex parte JONES, MORRISON, WOMACK & DEARING, P.C. and Ex parte Stokes, Clinton, Fleming & Sherling; Stokes & Clinton, P.C.; and Paul Clinton. (In re SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., et al.).
    1040961 and 1041197.
    Supreme Court of Alabama.
    April 7, 2006.
    David A. Boyett III of Anders, Boyett & Brady, P.C., Mobile, for petitioner Jones, Morrision & Womack, P.C.
    James B. Rossler of Rossler & Redditt, LLC, Mobile, for petitioners Stokes, Clinton, Fleming & Sherling; Stokes & Clinton, P.C.; and Paul Clinton.
    D. Charles Holtz of Fernandez, Holtz & Combs, L.L.C., Mobile; and Scott Tyra of Smith, Spires & Peddy, P.C., Birmingham, for respondent.
   SEE, Justice.

The law firm of Jones, Morrison, Wom-ack & Dearing, P.C., an Atlanta, Georgia, law firm; the law firm of Stokes, Clinton, Fleming & Sherling, and its successor firm, Stokes & Clinton, P.C., a Mobile law firm; and Paul Clinton, a partner in Stokes, Clinton, Fleming & Sherling and Stokes & Clinton, P.C., separately petitioned this Court for certiorari review of the Court of Civil Appeals’ holding that SouthTrust Bank’s appeal of a summary judgment in their favor would not be dismissed as moot. We granted the writ of certiorari initially to address the petitioners’ argument that the Court of Civil Appeals’ decision conflicts with Allstate Insurance Co. v. Amerisure Insurance Cos., 603 So.2d 961 (Ala.1992) (“Amerisure II ”). We find that this case is distinguishable from Amerisure II; therefore, we quash the writ as having been improvidently granted.

Facts and Procedural History

SouthTrust, represented by the law firm of Jones, Morrison, Womack & Dearing, P.C.; by the law firm of Stokes, Clinton, Fleming & Sherling, and its successor firm, Stokes & Clinton, P.C.; and by Paul Clinton, obtained a judgment against Neal Greene and took certain actions to collect that judgment; those actions resulted in economic harm to Greene. Because Greene was not legally liable for the debt that gave rise to SouthTrust’s collection action, the judgment against him was set aside, and Greene sued SouthTrust, alleging malicious prosecution.

SouthTrust brought a third-party complaint against the law firms and the lawyer that had represented SouthTrust in the collection proceeding — the law firms of Jones, Morrison, Womack & Dearing, P.C., and Stokes, Clinton, Fleming & Sherling, and its successor firm, Stokes & Clinton, P.C., and the lawyer Paul Clinton (hereinafter sometimes referred to collectively as “the lawyers”) — seeking indemnity for any liability SouthTrust might have to Greene arising out of the malicious-prosecution action. The lawyers moved for a summary judgment, arguing that SouthTrust, as a joint tortfeasor, was not entitled to indemnity from them. On September 25, 2003, the trial court entered a summary judgment in favor of the lawyers.

At the time the summary judgment for the lawyers was entered, the malicious-prosecution case had been scheduled for mediation to begin on October 1, 2003. The lawyers notified the mediator that they would not attend the mediation. The mediation went forward without the lawyers’ participation, and without success.

Greene’s malicious-prosecution case was scheduled for trial, which was to begin on October 27, 2003. On October 24, 2003, SouthTrust settled Greene’s claim for $325,000. On November 13, 2003, Greene and SouthTrust filed a “stipulation of dismissal” of Greene’s action against South-Trust. On the same day, by notation on the case-action summary, the trial court dismissed the case. SouthTrust thereafter sought two-thirds of the settlement amount from the lawyers, but the lawyers refused to pay. On December 4, 2003, SouthTrust filed in the Court of Civil Appeals its notice of appeal from the trial court’s summary judgment in favor of the lawyers on the indemnity issue.

The lawyers moved the Court of Civil Appeals to dismiss SouthTrust’s appeal, arguing that, by settling with Greene, SouthTrust had lost any rights it might have had to seek indemnity from the lawyers; thus, they argued, SouthTrust had effectively mooted its appeal. In support of that argument, the lawyers cited Ameri-sure II. The Court of Civil Appeals denied the lawyers’ motion to dismiss and decided the substantive issues raised by South-Trust on appeal. The Court of Civil Appeals reversed the summary judgment in favor of the lawyers and remanded the case to the trial court for further proceedings. The lawyers filed two petitions in this Court for a writ of certiorari, asserting several grounds for review. We granted certiorari review to consider only the issue whether the decision of the Court of Civil Appeals conflicts with Amerisure II. We consolidated the two petitions for the purpose of issuing one opinion.

Analysis

In addressing the lawyers’ motions to dismiss SouthTrust’s appeal, the Court of Civil Appeals distinguished Amerisure II on the basis that Amerisure II is a subro-gation case, not an indemnity case, and because, it concluded, the notice that was lacking in Amerisure II is not lacking in this case. As the Court of Civil Appeals noted, this Court in Amerisure II alternately used the terms “indemnity,” “equitable subrogation,” and “reimbursement” to describe the basis for Amerisure’s counterclaim against Allstate. We also note that this Court indicated that its holding in Amerisure II that the claim had not been preserved would have remained the same whether the claim for reimbursement — to use the more general term — was based on a claim for indemnity or on one of subro-gation. 603 So.2d at 966. However, we do not find it necessary to distinguish Ameri-sure II on the ostensible basis that its holding depends on its being a subrogation case as opposed to an indemnity case.

The alternative basis on which the Court of Civil Appeals distinguished Amerisure II from the case before us is that the notice that was lacking in Amerisure II is not lacking in this case. The court wrote:

“Amerisure II does not apply to the situation between [SouthTrust] and the lawyers in this case for a second reason: ... it is clear that the court considered it pivotal that Amerisure had failed to notify Allstate that it intended to look to Allstate for recoupment of what it had paid in settlement. The court stated, ‘The record is devoid of any notice that Amerisure intended to pursue a claim for reimbursement against Allstate.’ Amerisure II, 603 So.2d at 966 (emphasis added). In the present case, there is simply no basis for arguing that the lawyers were unaware that [SouthTrust] was seeking indemnity from them for any liability it might have to Greene.
“On August 28, 2001, counsel for [SouthTrust] wrote the following letter to [Stokes, Clinton, Fleming & Sherling] clearly notifying the lawyers in that firm that it considered them ‘ultimately] responsible]’ for any liability [SouthTrust] had to Greene[.]
“In addition, [SouthTrust] filed a motion in April 2002 for a mediation allowing the lawyers to participate in Greene’s action against [SouthTrust] without being named as third-party defendants. Finally, on May 31, 2002, [SouthTrust] filed a third-party complaint against the lawyers, alleging claims under the [Alabama Legal Services Liability Act] and seeking indemnity for any liability that [SouthTrust] might have to Greene.”

SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885, 895 (Ala.Civ.App.2005). Thus, the Court of Civil Appeals held that “Amerisure II is not authority for precluding [SouthTrust] from pursuing its third-party claims against the lawyers,” and it denied the lawyers’ motions to dismiss the appeal as moot and reversed the summary judgment. Id.

We recently reiterated that an indemnitee must give timely notice to the indemnitor in order to preserve an indemnity claim. See Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905 (Ala.2004). “To be sure, in order to preserve an indemnity claim, the indemnitee must timely notify the indemnitor of the action against the indemnitee.” Burkes Mech., 908 So.2d at 911. We continued, however, that “ ‘timely notice’ is a relative term, that is, it depends on the facts and circumstances of each case.” 908 So.2d at 911 (citing Cochrane Roofing & Metal Co. v. Callahan, 472 So.2d 1005, 1008 (Ala.1985)). “ ‘ “The notice must be timely in that it must not come so late that the indemnitor is prejudiced in preparing the defense.” ’ ” Burkes Mech., 908 So.2d at 911 (quoting Stone Building Co. v. Star Elec. Contractors, Inc., 796 So.2d 1076, 1091 (Ala.2000), quoting in turn Restatement (Second) of Judgments § 57, cmt. e). “ ‘Conversely, tardiness without prejudice provides no defense.’ ” Burkes Mech., 908 So.2d at 911 (quoting Stone, 796 So.2d at 1091).

Given the facts and circumstances of this case, we agree with the Court of Civil Appeals that this case is not like Amerisure II and that this Court’s holding in Amerisure II does not preclude South-Trust from pursuing its third-party indemnity claim against the lawyers. We cannot agree with the lawyers’ contention that they were deprived of notice of South-Trust’s intention to seek indemnity from them, as the Court concluded Allstate had been deprived in Amerisure II The proceedings leading up to SouthTrust’s settlement with Greene of his malicious-prosecution action and the procedural posture at the time Greene and SouthTrust entered into the settlement agreement differ significantly from those in Amerisure II.

In Amerisure Insurance Cos. v. Allstate Insurance Co., 582 So.2d 1100 (Ala.1991) (“Amerisure I”), Morris Sherrill, an employee of Wadsworth Contractors, Inc., was involved in an accident in which one of Wadsworth’s trailers, which was attached to Sherrill’s personal truck, came unhitched and rolled into a vehicle being driven by Fred Demo. Sherrill was insured by Allstate Insurance Company. Allstate paid Demo for the property damage he sustained as a result of the accident. Demo then sued Wadsworth and Sherrill seeking damages for his personal injuries.

Allstate brought a separate action against Wadsworth’s insurer, Amerisure Insurance Companies, seeking a judgment declaring that it had no obligation to defend or to indemnify Sherrill in Demo’s personal-injury action. Amerisure answered the complaint, admitting that it had primary coverage for Wadsworth. The trial court entered a summary judgment in favor of Allstate, holding that “Allstate owed no coverage to Sherrill with regard to this accident.” 582 So.2d at 1101. Amerisure appealed.

On May 30, 1991, while the Amerisure I appeal was pending (that is, Amerisure’s appeal of the judgment declaring that Allstate owed no coverage to Sherrill for the accident), Amerisure settled Demo’s personal-injury action against Wadsworth and Sherrill. Amerisure gave notice to Allstate of the proposed settlement, but did not give any indication that it would seek to hold Allstate liable for the settlement amount.

On June 21,1991, this Court released its opinion in Amerisure I, holding that Sher-rill’s policy with Allstate covered the trailer. That is, the Court reversed the summary judgment in favor of Allstate. 582 So.2d 1102. The Court did not determine whether Allstate’s or Amerisure’s policy provided the primary coverage for the accident.

On remand to the trial court, Amerisure filed a counterclaim against Allstate seeking reimbursement for the amount it had paid Demo in settlement of his claims against Sherrill, arguing that Allstate was legally obligated to pay Sherrill’s obligation to Demo. The trial court entered a summary judgment in favor of Amerisure, and Allstate appealed. Amerisure II, 603 So.2d at 963. This Court reversed the summary judgment in favor of Amerisure, stating:

“Even assuming that the circumstances and the relations of the parties could give rise to an implied contract of indemnification between Allstate and Amerisure after this Court’s holding in [Amerisure I ], no such implied contract could have existed at the time of the settlement and before this Court’s reversal. At the time Amerisure informed Allstate of the proposed settlement, Allstate was not an indemnitor, but, rather, Allstate had a declaratory judgment from the trial court holding that it was not obligated to provide coverage. Am-erisure’s pending appeal sought a reversal of Allstate’s declaratory judgment and a rendition of a judgment holding that Allstate’s policy provided primary coverage applying before any coverage under Amerisure’s policy.”

Amerisure II, 603 So.2d at 964. The Court stated, without citing authority, that, if Amerisure wanted to “preserve its right to seek indemnification for the settlement in the event of a reversal of the declaratory judgment,” it could have done so (1) by notifying Allstate that Amerisure intended to seek indemnification if this Court reversed the summary judgment on appeal, (2) by requesting a continuance of the trial of Demo’s personal-injury action, or (3) by requesting a stay of Demo’s personal-injury action until this Court ruled on the summary judgment of the declaratory-judgment action. Id.

The Court further noted that Amerisure did not do anything wrong in settling Demo’s personal-injury action. However, the Court said, again without citing authority, that “[t]he point is that Amerisure, in settling with Demo, did not preserve its right to proceed against Allstate either by giving Allstate notice of such an intent or by postponing the settlement until after this Court had ruled in its appeal from Allstate’s declaratory judgment.” Amerisure II, 603 So.2d at 965. The Court stated:

“Amerisure’s presentation of its settlement agreement to Allstate does not amount to reasonable notice of Ameri-sure’s intent to proceed against Allstate for reimbursement and will not sustain the trial court’s judgment. The record is devoid of any notice that Amerisure intended to pursue a claim for reimbursement against Allstate. Ameri-sure’s settlement agreement included the release of Allstate’s insured from all liability, but did not mention Ameri-sure’s claim for reimbursement in the event that Allstate’s declaratory judgment was reversed. It would be unjust, and possibly a violation of due process, to subject Allstate to the terms of a settlement to which it did not consent, at least not with any view toward its own liability, even if it implicitly consented on behalf of its insured.”

Amerisure II, 603 So.2d at 966.

We do not agree with the lawyers in this case that they were deprived of notice that SouthTrust was seeking indemnity from them so that SouthTrust failed to preserve its indemnity claim, thus rendering its appeal moot. In Amerisure II, the declaratory-judgment action involving the liabilities of Amerisure and Allstate was a case separate from the underlying action giving rise to liability' — Demo’s personal-injury action. In that separate declaratory-judgment action, Amerisure did not at the outset bring an indemnity claim against Allstate. Only after the case had proceeded to final judgment in favor of Allstate, after Amerisure had settled Demo’s personal-injury case, and after Amerisure had appealed and obtained a reversal of that judgment, did Amerisure assert a counterclaim against Allstate for indemnity. In addition, Allstate was not a party in Demo’s personal-injury suit.

In contrast, in the case before us, South-Trust brought at the outset — and in Greene’s action giving rise to the indemnity claim — a third-party complaint seeking indemnity from the lawyers. We cannot conclude that the lawyers were not on notice that SouthTrust would seek indemnity from them.

This Court apparently found it significant in Amerisure II that “Amerisure settled at a time when there was a declaratory judgment holding that Allstate’s policy did not provide coverage for this accident” and therefore concluded that “Amerisure effectively mooted its appeal by settling as it did without attempting to preserve its right to proceed against Allstate on the settlement.” 603 So.2d at 966. The lawyers argue that, in this case, SouthTrust settled at a time when there was a summary judgment holding that the lawyers were not obligated to indemnify South-Trust and that they were entitled to rely on that judgment in declining to participate further in Greene’s underlying action. However, the summary judgment in the lawyers’ favor was not final at the time SouthTrust settled with Greene. Pursuant to Rule 54(b), Ala. R. Civ. P., in the absence of the trial court’s proper certification of finality,

“any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

On October 24, 2003, when SouthTrust settled with Greene, the summary judgment in favor of the lawyers was subject to revision. No party had sought from the trial court a certification of finality under Rule 54(b), Ala. R. Civ. P. The summary judgment became final only when the case was finally disposed of on November 13, 2003. The declaratory judgment on which the Court focused in Amerisure II was final at the time the settlement was reached; it disposed of the only claim in that action. See Rule 54(b), Ala. R. Civ. P. The lawyers’ argument that they could rely on that judgment in declining to protect their interests by further participating in the case, for example, by attending the October 1, 2003, mediation, is unpersuasive.

For the foregoing reasons, we conclude that Amerisure II is distinguishable from the case before us. We agree with the Court of Civil Appeals that Amerisure II does not dictate that when SouthTrust settled with Greene it lost or failed to preserve its indemnity claim against the lawyers. Thus, Amerisure II did not require the Court of Civil Appeals to dismiss SouthTrust’s appeal. Finding no conflict with Amerisure II, we quash the writ as improvidently granted.

WRIT QUASHED.

LYONS, HARWOOD, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

PARKER, J., concurs in the result.

      . The underlying facts are not pertinent here and are set out fully in the Court of Civil Appeals’ opinion. SouthTrust Bank v. Jones, Morrison, Womack & Dearing, P.C., 939 So.2d 885 (Ala.Civ.App.2005).

      . Greene also alleged negligence and wantonness, abuse of process, and the tort of outrage; however, the trial court entered a summary judgment in favor of SouthTrust on those claims.

      . We do not review the Court of Civil Appeals’ ultimate holding that the trial court erred in entering a summary judgment in favor of the lawyers. Our determination of the Amerisure II question is material, however, because if Amerisure II were applicable and if South-Trust failed to take measures necessary under that decision to preserve its indemnity claim, thereby rendering its appeal “moot,” the Court of Civil Appeals should have dismissed SouthTrust's appeal instead of deciding it on the merits.

      . Amerisure II has never been cited as authority for precluding a would-be indemnitee from recovering from an indemnitor as the lawyers would have it operate in this case. The holding in Amerisure II that Amerisure “effectively mooted” its appeal by settling without "preserving” its reimbursement claim against Allstate has been discussed only by the United States District Court for the Middle District of Alabama, in Allstate Insurance Co. v. Brantley, 867 F.Supp. 1004, 1009 (M.D.Ala.1994). That court distinguished Amerisure II from the case before it on the basis that the relationship between Amerisure and Allstate differed from the relationship between the parties before the federal district court. ("Thus, while the [Alabama] Supreme Court’s holding in [Amerisure II ] is altogether correct given the relationship of the parties in that case, that holding has no application to the present case and is not authority upon which to deny Unisun's claim for subrogation.”)

      . Amerisure argued that it had entered into the settlement agreement on May 30 because of the pending June 12 trial date. Amerisure II, 603 So.2d at 964.

      . The cases the Court cited in Amerisure II that address the requirement of notice before settlement are cases involving uninsured-motorist coverage. While the Court noted that such cases were different from Amerisure II, it noted that those cases illustrate, among other things, "the importance of an insurance company's right to participate in the underlying action.” 603 So.2d at 966. The lawyers offer no authority for the proposition that Ameri-sure II should have force outside of that context.

      . The Court cited no authority in support of this proposition.

      . While arguing that they were entitled to rely on the summary judgment, the lawyers also argue that, despite that summary judgment, because SouthTrust did not give them advance notice of the settlement SouthTrust failed to preserve its indemnity claim. Ameri-sure did not bring its indemnity claim until after it had settled with Demo; SouthTrust brought its claim for indemnity early in the litigation between Greene and SouthTrust.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge. THOMPSON, Judge, PITTMAN, Judge, BRYAN, Judge,

license: Public Domain

text:
    Patricia LAMB v. Jonathan LAMB.
    2040487.
    Court of Civil Appeals of Alabama.
    Jan. 20, 2006.
    Certiorari Denied April 14, 2006 Alabama Supreme Court 1050570.

      Banks T. Smith of Hall, Smith, Prim & Freeman, P.A., Dothan, for appellant.
    W. Terry Bullard, Dothan, for appellee.
   CRAWLEY, Presiding Judge.

On September 21, 2004, Jonathan Lamb (“the husband”) sued Patricia Lamb (“the wife”), seeking a divorce, alleging as grounds for the divorce an incompatibility of temperament and an irretrievable breakdown of the marital relationship. Although the wife argued at the trial that she should have custody of the couple’s child because the husband had been abusive toward the wife during the marriage, the trial court’s judgment awarded custody to the husband. The wife appeals, alleging that the trial court erred in making its custody award and in awarding the marital home to the husband.

The couple married in August 2000 and had one child born to them during their marriage. The wife has four other children, for whom she receives child support, from previous relationships. The husband has a child from a previous relationship. The wife alleged at trial, and several witnesses testified, that the husband was abusive toward her during their marriage. The wife stated that she had had a nervous breakdown and had been confined to a hospital as a result of the husband’s abuse. Although she never testified specifically what that abuse was or when it happened, several witnesses for the wife elaborated upon the alleged abuse when they testified.

A neighbor who lived across the street from the couple stated that he called the police more than 10 times to report “incidents.” On one occasion the neighbor saw the husband slap one of the wife’s children from a previous relationship to the ground. Another time the neighbor heard the couple yelling inside their home; then, when the couple went onto the porch, he saw the husband knock the wife down and almost off the porch. On yet another occasion the neighbor called the “animal control” when he saw the husband punch a puppy in the face. However, the neighbor also admitted that the husband appeared to be a good father to the couple’s child and that because the fights had started inside the couple’s house he could not refute testimony indicating that the wife had started the fights by throwing things at the husband.

Barbara Pruitt, a former girlfriend to the husband before he was married to the wife in this case, testified that when she was in a relationship with the husband he was abusive toward her and, at times, toward their child. Pruitt also stated that the husband lied to the Department of Human Resources after they had separated. Despite the husband’s efforts to the contrary, Pruitt stated, she has sole custody of their child and the husband has no right to visitation. However, Pruitt admitted that the husband had never been convicted of any of the abuse she alleged.

The wife’s mother also testified, stating that she had witnessed the husband abuse the wife and tie cats to a ceiling fan. However, the husband indicated that his wife’s parents should not be trusted to tell the truth by testifying that his wife’s parents called his employer and falsely claimed that he was using drugs.

Additionally, there was other evidence on which the trial court could have relied in awarding the child’s custody to the husband, including allegations that the parties’ child and the wife’s other children were poorly cared for by the wife. Most of the wife’s children were alleged to have trouble in school and to have missed many days because of head lice. When questioned by the husband’s attorney about her children’s school performance and attendance, the wife’s answers to questions were often simply “I don’t know” or “I don’t recall.” Also, the wife stated that she had been recently hospitalized for a nervous breakdown and had been locked up at night in the mental ward. The husband testified that one of the wife’s children went to school one day in clothes in which the child had urinated. Furthermore, the husband submitted pictures to the trial court of the home maintained by the wife, which the husband alleged was “messy.”

The husband also stated that he wanted custody of the child because he wanted the child to have the best education, clean clothes, and no lice. Additionally, there was evidence indicating that the husband helped the child with her homework, using flash cards every night to learn the ABC’s. Although the husband works, he testified that he picks up the child from after-school care and that he hired a neighbor to take the child to school in the morning. The husband denied all the allegations of abuse toward the wife and the children.

The husband testified that he has worked at “Pemco Aviation World Air” for five years and that he earns $2,500 a month in wages. Although the wife claimed, and her mother testified, that the wife had made payments on the couple’s marital home from the child-support payments she had received for her other children, the husband claimed that he paid for the marital home completely on his own.

The trial court’s judgment awarded custody of the couple’s child to the husband and awarded the couple’s marital home to the husband as well. The wife moved the trial court for a new trial or, in the alternative, to amend its judgment. The trial court subsequently entered an amended judgment, noting that although there was evidence of a “skirmish” between the parties and between the husband and one of the wife’s children, there was no evidence indicating that the husband had ever been violent toward the parties’ child. The trial court also observed that the husband has a stable job and cares for his child’s hygiene and education. In contrast, the trial judge noted, the wife is not employed, has four other children to care for, and appears “to be careless in her requirements concerning education and personal hygiene.” Ultimately, the trial, court decided that it was in the best interests of the child to be placed with the husband.

“When evidence in a child custody case has been presented ore terms to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination — it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore terms before the trial court in a custody hearing. See Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), wherein this Court, quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993), set out the well-established rule:
“ ‘ “Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, Payne v. Payne, 550 So.2d 440 (Ala.Civ.App.1989), and Vail v. Vail, 532 So.2d 639 (Ala.Civ.App.1988), and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow. Gamble v. Gamble, 562 So.2d 1343 (Ala.Civ.App.1990); Flowers v. Flowers, 479 So.2d 1257 (Ala.Civ.App.1985).” ’
“It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. See the cases collected at 3 Ala. Digest 2d Appeal & Error § 846(5) (1993).
“There are two different standards for reviewing custody arrangements. If custody has not previously been determined, then the ‘best interest of the child’ standard is appropriate. Ex parte Couch, 521 So.2d 987 (Ala.1988)....
“Neither the Court of Civil Appeals nor this Court is allowed to reweigh the evidence in this case. This case, like all disputed custody cases, turns on the trial court’s perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.”

Ex parte Bryowsky, 676 So.2d 1322, 1324-26 (Ala.1996).

“Furthermore, an appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.” Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).

“ ‘ “In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. The trial court’s overriding consideration is the children’s best interests and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998)(quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).

However, as this court stated in Headrick v. Headrick, 916 So.2d 610, 613-614 (Ala.Civ.App.2005):

“An exception to the equal-footing principle concerns cases where domestic violence and abuse have occurred. In such cases, the Custody and Domestic or Family Abuse Act, Ala.Code 1975, § 30-3-130 et seq. (‘the Act’), creates a rebut-table presumption against granting custody to a perpetrator of domestic violence or abuse. Section 30-3-131, Ala. Code 1975, provides:
“ ‘In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.’
“Section 30-3-133, Ala.Code 1975, creates a similar rebuttable presumption that a minor child should reside with the parent who is not the perpetrator of domestic violence.
“In Ex parte Farm, our Supreme Court held that the Act does not require a trial court to make a specific finding as to whether domestic violence has in fact occurred and that it does not require the trial court to state the reasons and findings supporting a conclusion that a parent has rebutted a presumption against custody. Ex parte Fann, 810 So.2d [631] at 638-39 [ (Ala.2001)]. See also Fell v. Fell, 869 So.2d [486] at 494 [(Ala.Civ.App.2003) ].”

In this case, the trial court received ore tenus testimony; therefore, this court must presume that the trial court’s judgment is correct, and we will not reverse that judgment unless it is shown to be plainly and palpably wrong. Ex parte Bryowsky, 676 So.2d at 1324 (citations omitted). In this case, although there was some evidence of domestic abuse, there was also evidence indicating that the wife recently had a nervous breakdown requiring her to be hospitalized and that she did not properly maintain the hygiene of the couple’s child or of her children from previous relationships. When questioned about whether her children missed school because they had head lice, the wife could only answer “I don’t know.” Additionally, there was evidence indicating that the husband has a steady job, that he has never been abusive toward the child, and that he is concerned for the child’s hygiene and education. Considering that the judgment refers to the conflicts the husband and the wife had as a “skirmish,” it appears that the trial judge did not believe that the alleged abuse, if it actually occurred at all, rose to the level of abuse necessary to invoke the provisions of the Custody and Domestic or Family Abuse Act, Ala.Code 1975, § 30-3-130 et seq. Consequently, the rebuttable presumption that an abusive parent should not be granted custody of his or her child would not apply. Alternatively, because the trial judge characterized the alleged abuse as a “skirmish,” it also appears that the rebuttable presumption that the husband is unfit to have custody of the parties’ child pursuant to § 30-3-130 et seq. could have been overcome by the other evidence presented at trial. Consequently, we affirm the portion of the trial court’s judgment awarding custody of the couple’s child to the husband.

Concerning the portion of the trial court’s judgment awarding the marital home to the husband, we note that the ore tenus presumption that the trial court’s judgment is correct applies. Hall v. Hall, 895 So.2d 299, 303 (Ala.Civ.App.2004). As our supreme court held in Ex parte Elliott, 782 So.2d 308, 311-12 (Ala.2000):

“A court has no fixed standard to follow in awarding alimony or in dividing marital property. Rather, the award or division need only be equitable and be supported by the particular facts of the case.... ‘[T]he [circuit] court should consider several factors, including the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.’ ”

(Quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985); footnote omitted.)

Additionally, “[t]he only limitation on a trial court’s broad discretion in dividing the marital estate is that the property division and alimony award must be equitable under the circumstances of the particular case; the task of determining what is equitable falls to the trial court.” Hall v. Hall, 895 So.2d at 303 (citing Cantrell v. Cantrell, 773 So.2d 487 (Ala.Civ.App.2000)).

In this case, in which the husband and the wife disputed who paid for the marital home and in which the husband claimed that he paid for the marital home entirely on his own, the trial court was free to believe the evidence presented by the husband in making its judgment awarding the marital home to the husband. Additionally, the trial court could have also considered that, by awarding the custody of the couple’s child to the husband, the court should ensure that the husband would have an adequate residence in which to live and care for the child. Considering the evidence presented to the trial court supporting the trial court’s judgment, and the ore tenus presumption, we cannot say that the trial court’s award of the marital home to the husband was inequitable. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur specially, with writings.

MURDOCK, J., concurs in the result, without writing.

THOMPSON, Judge,

concurring specially.

I write specially to note that the evidence presented to the trial court in this case exemplifies the need to revisit the rationale behind this court’s holding in Fesmire v. Fesmire, 738 So.2d 1284 (Ala.Civ.App.1999). In Fesmire, both the mother and the father made allegations of domestic abuse against the other. The trial court, without making express findings regarding the allegations of abuse, awarded custody of the child to the father. The mother appealed to this court, arguing that the trial court had erred by failing to apply provisions of the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala.Code 1975 (“the Act”). The Act provides:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in the sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.”

§ 30-3-131, Ala.Code 1975.

In a proceeding in which custody is at issue and in which the trial court has made a finding of domestic or family violence, the trial court must consider “[t]he safety and well-being of the child and of the parent who is the victim of family or domestic violence” and “[t]he perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.” § 30-3-132(a)(l) and (2), Ala.Code 1975. Domestic abuse is defined in the Act as “an incident resulting in the abuse, stalking, assault, harassment, or the attempt or threats thereof.” § 30-3-130, Ala.Code 1975. The Act applies “[i]n every proceeding where there is at issue a dispute as to the custody of a child.” § 30-3-131, Ala.Code 1975.

This court in Fesmire determined that, although the Act does not mandate that the trial court make findings regarding the allegations of abuse, in the absence of express findings by the trial court concerning those allegations, an appellate court will be unable to ascertain whether the trial court applied the Custody and Domestic or Family Abuse Act. 738 So.2d at 1285-86. As a result, the court, recognizing the heavy burden placed on the trial courts of this state to guard and protect the interests of children and the necessity to exercise “scrupulous care” in so doing, held that,

“in cases involving allegations of domestic or family abuse, the trial court must, on the basis of the evidence presented, make a finding on the record as to whether domestic abuse occurred and then, if necessary, it must apply the remaining provisions of the Custody and Domestic or Family Abuse Act.”

Fesmire, 738 So.2d at 1288.

The evidence presented to the trial court in the present case indicates that the husband has committed acts of domestic violence. Three witnesses testified on behalf of the wife that they had witnessed the husband’s violent behavior. A neighbor testified that he witnessed the husband knock the wife onto the ground, slap one of the wife’s children, and punch a puppy in the face. The husband’s former girlfriend testified that the husband had physically abused her on numerous occasions and had struck their child, who was then six months old, in the mouth. Finally, the wife’s mother testified that she had witnessed the husband physically abuse the wife many times and commit acts of animal cruelty. The judgment of the trial court, which awarded custody of the parties’ child to the husband, merely noted evidence of a “skirmish” between the parties. Given the evidence presented at trial and the trial court’s judgment, it is difficult to ascertain whether the trial court believed that the alleged abuse had occurred or whether or not the trial court considered the alleged abuse when deciding the custody issue.

The need to guard and protect a child’s interests against perpetrators of domestic abuse has not changed since the enactment of the Act. Each year, in the United States, an estimated 3.3 million children are exposed to violence by family members against their mothers and female caretakers. American Psychological Ass’n, Violence and the Family: Report of the American Psychological Association Presidential Task Force on Violence and Family 11 (1996). Children who live with domestic violence face increased risks that include exposure to traumatic events, neglect, direct abuse, and the loss of one or both parents. National Adoption Information Clearinghouse, Children and Domestic Violence: A Bulletin for Professionals. The risks associated with exposure to domestic violence may affect a child’s well-being, safety, and stability. Id. In homes where domestic violence occurs, children are 15 times more likely to be abused. Domestic Violence Statistics — Children and Teens.

The growing number of incidents of domestic violence and the potential effect that those incidents have on children require aggressive action on the part of the judiciary in this State. In order to guarantee the exercise of “scrupulous care” by our trial courts, it is necessary to ensure compliance with the Act. While I recognize that Fesmire was overruled by our supreme court in Ex parte Farm, 810 So.2d 631 (Ala.2001), and that this court is bound by that precedent, I invite our supreme court to reconsider its holding in Farm and require express findings by the trial courts in cases in which allegations of domestic abuse are made. In my opinion, this is the only way to accomplish meaningful appellate review of decisions regarding domestic-abuse allegations and to assure that the Act is being applied in all cases.

PITTMAN, Judge,

concurring specially.

I disagree with the proposition, advanced in one of the special writings in this case, that the Alabama Supreme Court should revisit Ex parte Farm, 810 So.2d 631 (Ala.2001), in this case in that the appellant has not argued in her brief that Fann was wrongly decided. Moreover, I am not convinced that the Supreme Court’s primary holding in Fann — that the express terms of the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala.Code 1975 (“the CDFAA”), as enacted by the Legislature in 1995 do not include a statutory requirement that trial courts make specific factual findings concerning abuse allegations — is unsound.

If the Legislature wishes to amend the CDFAA so as to mandate express findings of abuse in custody cases (and Judge Thompson’s special writing offers sound reasons for undertaking such a course of action), that body has the power to do so. Barring such action, however, it is not the province of the judiciary to improve upon the CDFAA. See Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000, 1006 (Ala.Civ.App.2004).

BRYAN, Judge,

concurring specially.

As Judge Thompson points out in his special writing, an appellate court cannot determine whether the trial court has complied with the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala. Code 1975 (“the CDFAA”), when the evidence tends to prove that one or both parties to a custody dispute have committed acts of domestic violence and the trial court has made no express findings regarding that evidence. Like Judge Pittman, I am not convinced the supreme court’s holding in Ex parte Fann, 810 So.2d 631 (Ala.2001) — that the CDFAA does not expressly require the trial courts to make express findings regarding evidence of domestic violence — is unsound. Nonetheless, the need for such findings exists. In his special writing, Judge Pittman has pointed out that the Legislature could address this problem by amending the CDFAA or Rule 52, Ala. R. Civ. P. I write to point out that, pursuant to Article IV, § 150, of the Alabama Constitution of 1901, the supreme court is also authorized to make the necessary change to Rule 52.

      . On January 20, 2006, the date this opinion was released, this statistic could be found at: http://nccanch.acf.hhs.gov/pubs/factsheets/ domesticviolence.cfm (a copy of which is available in the case file of the clerk of the Court of Civil Appeals).

      . On January 20, 2006, the date this opinion was released, this statistic could be found at: http://womensissues.about.com/od/domestic violence/a/dvstats4.htm (a copy of which is available in the case file of the clerk of the Court of Civil Appeals).

      . Alternatively, the Legislature might choose to exercise its authority under § 150 of the Alabama Constitution of 1901 to change Rule 52(a), Ala. R. Civ. P., which- provides that "[i]n all actions tried upon the facts without a jury ... the court may upon written request and shall when required by statute, find the facts specially and state separately its conclusions of law thereon” (emphasis added).


author: THOMPSON, Judge.

text:
    Pat GARTMAN v. LIMESTONE COUNTY BOARD OF EDUCATION.
    2041018.
    Court of Civil Appeals of Alabama.
    Feb. 3, 2006.
    Certiorari Denied April 14, 2006 Alabama Supreme Court 1050633.

      Gregory B. Stein of Stein, Brewster & Pilcher, L.L.C., Mobile, for appellant.
    J.R. Brooks of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
    David R. Boyd, Dorman Walker, and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the appellee.
   THOMPSON, Judge.

Pat Gartman appeals from the trial court’s judgment entered on the pleadings, upholding the decision of the Limestone County Board of Education (“the Board”) to terminate Gartman’s employment as a principal in the Limestone County school system. Gartman’s appeal focuses on whether § 16-24B-3(c), a part of the “Teacher Accountability Act,” § 16-24B-1 et seq., Ala.Code 1975 (“the Act”), applies to principals serving on a probationary basis in a local school system. We conclude that that section does not apply to principals serving on a probationary basis, and we affirm the trial court’s judgment.

The facts of this case are neither complex nor in dispute. In July 2003, the Board hired Gartman to serve as a principal in the Limestone County school system. Gartman, who had no previous experience as a principal in the Limestone County school system, entered into an employment contract with the Board. The contract, which referred to Gartman as the “contract principal,” specified that Gart-man was to serve a probationary period until the end of the 2004-2005 school year. The contract stated that, at the end of the probationary period, the Board could “terminate the contract principal for any reason or without a stated reason.” The contract further stated that if the Board did not terminate Gartman’s employment at the end of the probationary period, she would be employed as a principal for a three-year term.

On May 24, 2005, the Board voted unanimously to terminate Gartman’s employment as a principal. That same day, the superintendent of the Board notified Gart-man of the Board’s decision by certified letter. On May 31, 2005, Gartman filed a complaint in the trial court, alleging that § 16-24B-3(c), Ala.Code 1975, required the Board to vote to terminate her employment at least 90 days before the end of the 2004-2005 school year. On June 17, 2005, the Board answered Gartman’s complaint and asserted that the § 16-24B-3(c) did not apply to contract principals serving during a probationary period. Also on that date, the Board filed a motion for a judgment on the pleadings, see Rule 12(c), Ala. R. Civ. P.; the Board submitted a brief in support of that motion. In its brief, the Board asserted that § 16-24B-3(c) did not apply to principals such as .Gartman who were serving during a probationary period. Gartman later filed a brief in response to the Board’s motion, and the Board filed a reply brief. On August 11, 2005, the trial court heard oral arguments from the parties’ attorneys. After considering those arguments, the trial court granted the Board’s motion and entered a judgment on the pleadings in favor of the Board. This appeal followed.

We review a trial court’s entry of a judgment on the pleadings de novo. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala.Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56.

As she did in the proceedings below, Gartman argues on appeal that, pursuant to § 16-24B-3(c), the Board had a duty to vote to terminate her employment as a principal at least 90 days before the end of the 2004-2005 school year and that the Board’s failure to do so caused the termination of Gartman’s employment to be void. Section 16-24B-3, Ala.Code 1975, provides, in pertinent part:

“(a) Any other provision of law to the contrary notwithstanding, persons employed as principals in the public schools in Alabama on or after July 1, 2000, may, at the election of the employing board, be employed as probationary principals for up to one full contract year; provided, however, that if such person is being employed as a principal for the first time, such probationary period may be for up to two full contract years. After completion of such probationary period, the same employing board shall either offer the probationary principal not less than a three-year contract pursuant to this section or terminate the probationary principal for any reason, or without a stated reason, as the case may be. In the case of a probationary principal who is terminated prior to the end of the school year, the probationary principal shall be entitled to the hearing process as described in this section. Any contract principal hired on or after July 1, 2000, to work in the capacity of a contract principal in a public school in the state shall be properly certified and shall be employed pursuant to a written contract for an initial period of not less than three years. The initial contract of not less than three years may only be canceled for cause as described in subdivision (1) of subsection (e)....
“(b) Subject to the procedures described in subsection (c), in the case of a contract principal after the initial term of the contract, the contract shall be renewed for a period not less than three years, and shall contain a provision for cancellation during the term of the contract only for just cause, described in subdivision (1) of subsection (e).
“(c) Notwithstanding whether the contract is the initial contract or otherwise, should the chief executive officer make a recommendation to the employing board followed by a majority vote of the board not to offer a new, renewed, or extended contract to the contract principal, the vote of the employing board shall be made at least 90 days before the end of the existing contract. The recommendation shall contain written notice of the decision of the chief executive officer and the reasons for the decision to nonrenew the contract. Notice shall be provided to the contract principal either by personal service or by certified mail, return receipt requested, mailed to the last known address of the contract principal. The decision of the chief executive officer and the employing board may be based on any reason except personal or political reasons.”

(Emphasis added.)

The sole issue Gartman raises on appeal is whether § 16-24B-3(c) applies to probationary principals, which is a matter of statutory interpretation. “It is a well-settled rule of statutory construction that courts ascertain the Legislature’s intent in enacting a statute from the language used in the statute itself, as well as from the reason for the statute and the goals the Legislature seeks to accomplish through the statute.” Alabama Bd. of Pardons & Paroles v. Brooks, 802 So.2d 242, 247 (Ala.Civ.App.2001) (citing McGuire Oil Co. v. Mapco, Inc., 612 So.2d 417 (Ala.1992)). Words used in a statute are to be given their natural, plain, ordinary, and commonly understood meaning. IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). “Further, it is well established that ‘“[sjections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.” ’ ” State v. Amerada Hess Corp., 788 So.2d 179, 183 (Ala.Civ.App.2000) (quoting New Joy Young Rest., Inc. v. State Dep’t of Revenue, 667 So.2d 1384, 1387 (Ala.Civ.App.1995) (quoting in turn Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977))). “In construing a statute, the court must consider the entire statute and not an isolated part, giving to every clause effect in light of the subject matter and purpose of the enactment.” Standard Oil Co. v. State, 55 Ala.App. 103, 111, 313 So.2d 532, 539 (Civ.1975). “Statutory construction dictates that in construing a statute, a court must, if possible, avoid a construction that would place statutes in conflict with other statutes, and statutes should be resolved in favor of each other, when possible, so as to form one harmonious plan.” Bryce Hosp. Credit Union, Inc. v. Warrior Dodge, Inc., 50 Ala.App. 15, 21, 276 So.2d 602, 607 (Civ.1973).

Section 16-24B-2(2) defines “contract principal” as “only those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school.... ” Section 16-24B-2(8) defines “probationary principal” as “[a]ny principal hired for the first time in any local school system as a principal on or after July 1, 2000.” Gart-man argues that the definition of “contract principal” used in § 16-24B-2(2) describes her status because she was hired as a principal, the chief administrator of a school, after July 1, 2000. Gartman further argues that, because she was serving as a probationary principal, as defined by § 16-24B-2(8), her status met both the definition of a contract principal and a probationary principal; therefore, she contends, a “probationary principal” is a “subspecies of contract principal.” As such, Gartman argues that she was entitled to the 90-day notice afforded contract principals by § 16-24B-3(e).

In support of her argument, Gartman maintains that the opening language of § 16-24B-3(c) stating that “[njotwith-standing whether the contract is the initial contract or otherwise” suggests that § 16-24B-3(c) applies to both contract principals and probationary principals. Gart-man asserts that because the Act’s definition section, § 16-24B-2, defines “contract principal” and “probationary principal” but not “initial contract,” the term “initial contract” should be given its plain meaning when read in the statute. See DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998) (noting that “[i]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect”)(internal citations omitted). Merriam-Webster’s Collegiate Dictionary 643 (11th ed.2003) defines “initial” as: “of or relating to the beginning; ... [fjirst.” Gartman argues that her contract was her first contract and, therefore, that it fit within the parameters of § 16-24B-3(c). That argument cannot succeed for at least two reasons.

Gartman’s argument fails to acknowledge the manner in which the term “initial contract” is used in the Act: § 16-24B-3(a) provides that a person hired as a principal for the first time may serve for a probationary period of “two full contract years.” Section 16-24B-3(a) further states that contract principals “shall be employed pursuant to a written contract for an initial period of not less than three years.” Thus, § 16-24B-3(a) distinguishes between a “probationary” principal and a principal serving his or her “initial” contract as a contract principal because the probationary period can last up to two years while the initial contract for a contract principal can be no less than three years. It is clear that § 16-24B-3(a) uses the term “initial contract” in relation to a principal who is serving under the terms of his or her first contract as a contract principal after the completion of his or her probationary period.

Further, if read in isolation, the opening language of § 16-24B-3(c) — “[notwithstanding whether the contract is the initial contract or otherwise” — would seem to support Gartmaris argument. We cannot, however, read a portion of a statute in isolation. See Standard Oil Co. v. State, supra. Rather, we must examine the remainder of § 16-24B-3(c), which does not support Gartman’s argument. Pursuant to § 16-24B-3(c), the notice sent to a contract principal whose employment has been tenninated “shall contain written notice of the decision of the chief executive officer and the reasons for the decision to nonrenew the contract.” Pursuant to § 16-34B-3(a), a probationary principal’s employment can be terminated for “any reason, or without a stated reason.... ” Thus, if we accepted Gartmaris interpretation, we would be placing § 16-34B-3(a) in direct conflict with § 16-24B-3(c) because one subsection requires notice of the board’s reasons for terminating the principal’s employment while the other subsection expressly allows the board to withhold the reasons, if any, behind its decision to terminate a principal’s employment. We are bound, however, to read the subsections in such a way as to avoid such a conflict and to promote one harmonious plan. See Bryce Hosp. Credit Union, Inc. v. Warrior Dodge, Inc. supra.

Also, contrary to Gartman’s interpretation of the Act, § 16-24B-3(e), Ala.Code 1975, specifically lists several reasons for which a contract principal’s employment can be terminated. Section 16-24B-3(a) expressly provides that probationary principals can be terminated “for any reason,” further distinguishing between contract principals and probationary principals. Because all of the sections of the Act deal with the same subject matter, we are bound to read all of the sections of the Act together. See State v. Amerada Hess Corp., supra. The manner in which the terms “initial contract,” “probationary principal,” and “contract principal” are used and/or defined in the Act precludes the interpretation advanced by Gartman. See DeKalb County LP Gas Co. v. Suburban Gas, Inc., supra; and Alabama Bd. of Pardons & Paroles v. Brooks, supra. Accordingly, we decline to extend the 90-day notice requirement of § 16-24B-3(c) to probationary principals because to do so would be contrary to the Legislature’s intent as expressed in the Act.

AFFIRMED.

CRAWLEY, P.J., and PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

      . As discussed infra, § 16-24B-2, Ala.Code 1975, defines the terms “contract principal” and "probationary principal,” thus distinguishing between the two.

      . Though the actual last day of Gartman’s employment period, as defined in her contract, is disputed by the parties, there is no dispute that May 24, 2005, was less than 90 days from the end of that period.


author: MURDOCK, Judge.

text:
    G.W. v. DALE COUNTY DEPARTMENT OF HUMAN RESOURCES and State Department of Human Resources.
    2050075.
    Court of Civil Appeals of Alabama.
    April 7, 2006.

      Michael Guy Holton, Pike Road, for appellant.
    Troy King, atty. gen., and Sharon E. Fiquette and James E. Long, asst, attys. gen., Department of Human Resources, for appellees.
   MURDOCK, Judge.

This case involves a second lawsuit arising out of the facts and circumstances that led to this court’s decision in F.G.W. v. S.W., 911 So.2d 1 (Ala.Civ.App.2004) (plurality opinion). G.W. was the appellant in F.G.W. The appeal in F.G.W. concerned a dependency proceeding, see Ala.Code 1975, § 12-15-1 et seq., that was initiated in July 2003 by the paternal grandparents of G.W.’s two sons. The sons were born in April 1991 and December 1994, respectively. The paternal grandparents sought custody of the sons after the June 2003 death of A.W., G.W.’s 21-month-old daughter. This court affirmed the judgment of the Coffee Juvenile Court awarding custody of G.W.’s two sons to the paternal grandparents. See F.G.W., 911 So.2d at 5.

While the dependency proceeding at issue in F.G.W. was pending in the juvenile court, the Dale County Department of Human Resources (“the Dale County DHR”) initiated child-abuse/neglect investigations against G.W., who was married, and her paramour, who had physically abused A.W. in a manner that caused her death. After its investigation, the Dale County DHR concluded that the child-abuse allegation against G.W.’s paramour was “indicated” and that an allegation that G.W. posed “a risk of serious harm” to her sons was also “indicated.” See Ala.Code 1975, § 26-14-8(a)(1) (defining “indicated” as used in the statewide central registry); Ala. Admin. Code (DHR), Rule 660-5-34-.06(l).

In August 2003, the Dale County DHR informed G.W. of its investigative findings and that an “indicated” entry would be made as to G.W. in the statewide central registry for reports of child abuse and neglect. The central registry is maintained by the State Department of Human Resources (“the State DHR”). See Ala. Code 1975, § 26-14-8; Ala. Admin. Code (DHR), Rule 660-5-34-.08(l). The Dale County DHR also informed G.W. that she had 10 days to request an administrative record review by the State DHR. See Ala. Admin.Code (DHR), Rule 660-5-34-.07 (describing, in part, the right to an administrative record review after an “indicated” finding of abuse or neglect). G.W. requested the administrative record review.

On October 29, 2003, the State DHR informed G.W. by letter as follows:

“We have completed our administrative record review on the above noted case. It has been determined that the [Dale] County [DHR] does have enough credible evidence to support a disposi-tional finding of ‘indicated’ i.e. true.
“This report will be entered into the [State DHR’s] Central Registry on Child Abuse and Neglect as an ‘indicated’ incident.”

On January 16, 2004, G.W. initiated the present action by filing a pleading titled “Appeal Trial De Novo” in the Coffee Circuit Court. Based on a review of this “Appeal,” the certificate of service attached to the “Appeal,” the summons issued in conjunction with it, and other materials in the record, it appears that G.W. filed her “Appeal” against both the Dale County DHR, which investigated the allegations of abuse or neglect against G.W., and the State DHR, which conducted the administrative record review and entered the report as to G.W. on the central registry. In her “Appeal,” G.W. asserted that the State DHR should have provided her with an administrative hearing at which she could have contested the evidence that allegedly supported the Dale County DHR’s investigative finding. Based on later filings with the Coffee Circuit Court, G.W. argued that provisions of the Alabama Administrative Procedure Act, Ala. Code 1975, § 41-22-1 et seq. (“the AAPA”), and the Child Abuse Reporting Act, Ala.Code 1975, § 26-14-1 et seq., required that she be given an administrative hearing and she asserted that she was pursuing her “Appeal” pursuant to the AAPA.

The Coffee Circuit Court concluded that G.W. had no right to an administrative hearing under either the AAPA or the Child Abuse Reporting Act and that she had no right to an appeal under the AAPA. Instead, it concluded that G.W.’s “Appeal” should be treated as a petition for a common-law writ of certiorari. On July 20, 2004, the Coffee Circuit Court transferred the proceedings to the Dale Circuit Court, which the Dale County DHR argued was the appropriate venue for hearing a petition for a common-law writ of certiorari.

After G.W.’s “Appeal” was transferred to the Dale Circuit Court, she filed an “Amended Petition for Common Law Writ of Certiorari.” In substance, the petition restated the allegations contained in G.W.’s “Appeal,” i.e., that the State DHR should have provided her with an administrative hearing at which she could have introduced evidence and contested the Dale County DHR’s investigative finding. Notwithstanding the use of the term “cer-tiorari” in the title of her petition, G.W. continued to maintain in subsequent filings with the Dale Circuit Court that the AAPA and the Child Abuse Reporting Act required the State DHR to provide her with an administrative hearing and that she was entitled to appeal pursuant to AAPA.

In August 2005, after reviewing the record from the administrative record review as to G.W., and after hearing arguments of the parties, the Dale Circuit Court entered a judgment denying G.W.’s petition and affirming the State DHR’s decision as to G.W. G.W. appealed to the Alabama Supreme Court. The Supreme Court transferred G.W.’s appeal to this Court on jurisdictional grounds.

G.W. argues that the Dale Circuit Court erred when it failed to require the State DHR to provide her with an administrative hearing at which she could contest the investigative findings of the Dale County DHR. However, we are unable to address the merits of G.W.’s argument because the Dale Circuit Court’s judgment is void and will not support an appeal.

The issue of subject-matter jurisdiction is “ ‘of such magnitude that we take notice of [it] at any time and do so even ex mero motu.’” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “We are obliged to recognize an absence of subject-matter jurisdiction obvious from a record, petition, or exhibits to a petition before us.” Ex parte Norfolk S. Ry. Co., 816 So.2d 469, 472 (Ala.2001). A judgment entered by a court that lacks subject-matter jurisdiction is void. See C.J.L. v. M.W.B., 868 So.2d 451, 454 (Ala.Civ.App.2003).

The common-law writ of certio-rari is a remedial writ invoking the “ ‘supervisory power of a superior over an inferior legal tribunal.’ ” City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919). The writ can, under appropriate circumstances, be used to review decisions of an administrative agency or board that are judicial or quasi-judicial in nature. See State v. Albritton, 251 Ala. 422, 37 So.2d 640 (1948). However, the court entertaining a petition for a common-law writ of certiorari must be a court of superior jurisdiction to the inferior tribunal at issue. See, e.g., Ex parte Alabama Textile Prods. Corp., 242 Ala. 609, 7 So.2d 303 (1942).

In Ex parte Alabama Textile Products Corp., our Supreme Court addressed the issue whether, in the context of a common-law petition for a writ of certiorari, “a board of state-wide jurisdiction, not limited to any county or district in its field of operation, is ... an inferior jurisdiction to the circuit court with a field of operation limited to a circuit.” 242 Ala. at 613, 7 So.2d at 305 (emphasis added). The Supreme Court stated:

“[W]e have sustained the power of a circuit court to review by certiorari the ruling of a state board or commission (Alabama Power Co. v. City of Fort Payne, [237 Ala. 459, 187 So. 632 (1939)]), and have recognized the right of such court to issue mandamus to it in a proper case ..., when the circuit court doing so had original jurisdiction in the county where such board or commission had its principal place of business, though we did not emphasize that as the reason for doing so. We do not doubt that the Circuit Court of Montgomery County would have power to give such review to the order here in question [where the board at issue was of statewide jurisdiction and had its principal place of business in Montgomery County], but we do doubt such authority of the circuit court of a county in which it did not sit, to hear the matter in controversy.”

Ex parte Alabama Textile Prods. Corp., 242 Ala. at 613, 7 So.2d at 306. The Supreme Court has further stated that “rather than being subject to supervision of the circuit court of any circuit in which it carries on activities, a state board or commission is only subject to review by remedial writ from the circuit court where its principal place of business is located.” Alabama State Bar v. Simpson, 289 Ala. 735, 738, 272 So.2d 245, 247-48 (1972); see also Alabama State Bar v. Watson, 289 Ala. 729, 272 So.2d 240 (1972); and Brogden v. Employees’ Retirement Sys., 336 So.2d 1376 (Ala.Civ.App.1976).

The State DHR is a department of statewide jurisdiction. See Ala.Code 1975, § 38-2-1 et seq. Its principal office is located in Montgomery County. Ala. Admin. Code (DHR), Rule 660-l-l-.01(l)(a). The Dale Circuit Court had no jurisdiction to entertain a supervisory remedial writ as to the State DHR, i.e., G.W.’s petition for a writ of common-law certiorari as to the State DHR.

Based on the foregoing, the Dale Circuit Court’s judgment as to G.W.’s petition for a common-law writ of certiorari is void, and the judgment will not support an appeal. We must therefore dismiss G.W.’s appeal.

APPEAL DISMISSED.

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

      . On January 14, 2005, this court denied G.W.’s petition for a rehearing as to the opinion in F.G.W. G.W. then filed a petition for certiorari review with the Alabama Supreme Court, which was denied.

        . See, e.g., Fowler v. Fowler, 219 Ala. 457, 458, 122 So. 444, 444 (1929) (noting that appellate relief by way of a common-law writ of certio-rari may be available, in an appropriate case, when there is no adequate remedy by appeal).

      . In March 2004, during the pendency of the present case, the Coffee Juvenile Court conducted the trial in F.G.W. Neither the Dale County DHR nor the State DHR were parties in F.G.W. Also, there is nothing from our opinion in F.G.W., or from the record in the present case, to indicate that the central-registry report at issue was received as evidence at trial in F.G.W. We did note in F.G.W. that G.W. admitted that DHR had "marked” her child-abuse report as "indicated.” 911 So.2d at 3.

      . G.W.’s appellate brief is unclear in several respects. Considering G.W.'s arguments as a whole, we cannot conclude that she has argued that the circuit court erred by treating her "Appeal” as a petition for a common-law writ of certiorari rather than as an appeal under the AAPA. See Rule 28(a)(10), Ala. R.App. P. "[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994). Further, even if G.W.’s appeal properly could have been filed pursuant to the AAPA, it would not have been timely filed. See Ala.Code 1975, § 41-22-20(d) ("The notice of appeal ... shall be filed within 30 days after receipt of the notice or other service of the final decision of the agency upon the petitioner.”); State Medicaid Agency v. Anthony, 528 So.2d 326, 328 (Ala.Civ.App.1988).
      In addition, it is unclear whether G.W. is arguing in her appellate brief that the circuit court erred by not conducting a de novo hearing. However, even if we were to conclude that G.W. makes that argument in her appellate brief, she cited no legal authority for this proposition. See Rule 28(a)(10); and Dykes, supra. We further note that
      " '[a] common-law writ of certiorari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.’ ”

        City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919).

      . To the extent that G.W.’s brief might be construed as arguing that the Dale County DHR was required to provide her with an administrative hearing, we note that the relief G.W. sought at trial, and that she seeks on appeal, relates to review proceedings conducted by the State DHR and to the entry of her name on the "central registry" for reports of child abuse or neglect. The central registry is maintained by the State DHR, not the Dale County DHR. See Ala.Code 1975, § 26-14-8; and Ala. Admin. Code (DHR), Rule 660-5-34-.08(l). G.W. has not argued, and has not cited any legal authority to support an argument, that a county department of human resources must provide an administrative hearing to review its own child-abuse or neglect investigation when the supervising state agency’s review procedures are allegedly deficient. See Dykes, supra.


author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    Brigitte DEAKLE and Victoria Ursula Brown v. Charlotte CHILDS, as administratrix of the estate of Myrtle Gray Smith, deceased.
    2040595.
    Court of Civil Appeals of Alabama.
    April 7, 2006.

      Thomas R. Boiler, Mobile, for appellants.
    Wesley H. Blacksher of Blacksher & Herrington, L.L.C., Mobile, for appellee.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

The opinion of this court issued on January 27, 2006, is withdrawn, and the following is substituted therefor.

In July 2000 Myrtle Gray Smith sued Brigitte Deakle and her daughter, Victoria Ursula Brown, alleging fraud and seeking to set aside a conveyance of real property. Smith alleged that in February 2000 Dea-kle, Smith’s long-term caregiver, had fraudulently induced her to convey to Dea-kle and Brown, as joint tenants with the right of survivorship, a remainder interest in the real property upon which Smith’s residence was located by representing that, unless Smith conveyed the property, Smith’s sister would take her house and have Smith put in a nursing home.

Deakle answered Smith’s complaint, acknowledged that Deakle had received a deed from Smith, asserted the affirmative defense of estoppel, and began to conduct discovery, taking Smith’s deposition in October 2000. In October 2003 Smith died. In February 2004 the case was set for trial on September 22, 2004. In July 2004 Smith’s daughter, Charlotte Childs, as the administratrix of Smith’s estate, was substituted as the plaintiff (hereinafter sometimes referred to as “the administratrix”). On September 8, 2004, Deakle and Brown moved for a summary judgment. On September 20, 2004, the trial court continued the trial date for 60 days in response to a motion filed by the administratrix.

On September 24, 2004, the administra-trix moved for leave to amend the complaint, seeking to have the conveyance set aside on the additional ground that Smith was suffering from Alzheimer’s disease and was not of sound mind at the time she executed the deed to Deakle and Brown. The motion alleged that Childs had testified at a September 8, 2004, deposition that her mother had various mental deficiencies, including Alzheimer’s disease. Deakle and Brown objected to the proposed amendment, pointing out that counsel for the administratrix had represented Smith before her death and asserting that, if Smith had suffered from a lack of mental capacity at the time she executed the deed in 2000, her counsel could have ascertained that fact, either in July 2000 when he filed the complaint on her behalf and offered her affidavit or in the ensuing three years that the lawsuit was pending before Smith’s death. Deakle and Brown asserted that they would be prejudiced by the amendment because they could no longer depose Smith or conduct a psychological examination of Smith. The trial court granted leave to amend on October 14, 2000.

The administratrix also moved for a summary judgment against Brown on September 24, 2004, alleging that, as to Brown only, the deed was invalid for lack of delivery. On December 17, 2004, the trial court denied Deakle and Brown’s motion for a summary judgment and entered a partial summary judgment against Brown. On February 2, 2005, the trial court entered two orders pursuant to Rule 54(b), Ala. R. Civ. P.: one directing the entry of a final judgment as to its order adjudicating the administratrix’s claims against Brown and one directing the entry of a final judgment as to its order granting the administratrix’s motion for leave to amend the complaint as to the claims asserted against Deakle.

Brown appeals from the partial summary judgment entered in favor of the administratrix, raising two issues: (1) whether the trial court abused its discretion in allowing the administratrix to amend the complaint, and (2) whether the trial court erred as a matter of law in concluding that the deed was invalid as to Brown because there was no delivery as to Brown. Deakle purports to appeal from the order granting the administratrix’s motion for leave to amend the complaint, an order that the trial court certified as final pursuant to Rule 54(b). However, because there was no final resolution of any claim against Deakle, the trial court had no authority to certify the order as final and Deakle has no right of appeal from the order granting the administra-trix’s motion for leave to amend the complaint.

Rule 54(b), Ala. R. Civ. P., states, in pertinent part:

“When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reaspM for delay and upon an express direction for the entry of judgment.”

The order granting the motion by the ad-ministratrix to amend the complaint was an interlocutory order.

“The procedure envisioned by [Rule 54(b), Ala. R. Civ. P.,] is not the same as the certification of appealability authorized by 28 U.S.C.A. § 1292(b), permitting appeals of interlocutory orders involving a controlling question of law over which substantial difference of opinion may exist. [Rule 51(b) ] speaks to final orders and cannot be applied so as to achieve the equivalent of an interlocutory appeal as provided for in 28 U.S.C.A., § 1292(b). Alabama has a procedure comparable to the federal statute. See Rule 5, Alabama Rules of Appellate Procedure.”

2 Champ Lyons, Jr., and Ally W. Howell, Alabama Rules of Civil Procedure Annotated 156 (4th ed.2004) (emphasis added).

A trial court’s recitation of the formula for certification of a judgment pursuant to Rule 54(b), Ala. R. Civ. P., “does not ipso facto make the order appealable.” 2 C. Lyons and A. Howell, Alabama Rules of Civil Procedure Annotated 154. In Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala.2004), the Alabama Supreme Court observed:

“To be sure, the trial court recited the formula for certification of a judgment pursuant to Rule 54(b), Ala. R. Civ. P. However, ‘[n]ot every order has the requisite element of finality that can trigger the operation of Rule 51(b).’ Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ.App.2003) (emphasis added). A claim is not eligible for Rule 54(b) certification unless it has been completely resolved by the judgment.
“.... ‘[T]he trial court cannot confer appellate jurisdiction upon this [Cjourt through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.” ’ Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978).”

Rather than appealing from the trial court’s interlocutory order, Deakle should have filed a petition for a writ of mandamus. See Ex parte Fort James Operating Co., 905 So.2d 836 (Ala.Civ.App.2004) (holding that a petition for a writ of mandamus is the appropriate mechanism for challenging a trial court’s grant of leave to amend a complaint). However, for the reasons explained in Part I of this opinion, the issue raised by Deakle is moot.

I. The Amendment

Rule 15(a), Ala. R. Civ. P., states, in pertinent part:

“Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.”

“1 “[T]he grant or denial of leave to amend is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion.” ’ ” Rector v. Better Houses, Inc., 820 So.2d 75, 78 (Ala.2001)(quoting Boros v. Baxley, 621 So.2d 240, 245 (Ala.1993)).

“Under Rule 15(a), in order to obtain leave of the trial court to file [an] ... amendment ..., [the movant has] the burden of showing ‘good cause.’ Further, even if a party makes a showing of good cause, the trial court does not have unbridled discretion, but must consider whether a proposed amendment will result in undue delay or prejudice to the defendant. See Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975) (quoted with approval in Ex parte Bailey, 814 So.2d 867 (Ala.2001)). Cf. Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 954 (Ala.2003) (explaining that when ‘good cause’ is shown for an amendment to a complaint filed after the 42-day period before the first setting of the ease for trial has expired, a denial of the leave to amend must be based on a ‘valid ground’ for doing so, such as actual prejudice or undue delay).”

Ex parte Fort James Operating Co., 905 So.2d at 845. The administratrix argues that she established good cause for the amendment by showing that the issue of Smith’s mental capacity was never raised until Deakle and Brown deposed Childs, Smith’s daughter, and she provided the information that her mother suffered from Alzheimer’s disease. Although Deakle and Brown argue that they will be prejudiced by the amendment because they cannot now depose Smith or have her submit to a mental examination, we note that the determinative issue will be Smith’s capacity “ ‘at the very time of the transaction,’ ” i.e., when she signed the deed. Abbott v. Rogers, 680 So.2d 315, 317 (Ala.Civ.App.1996)(quoting Wilson v. Wehunt, 631 So.2d 991, 996 (Ala.1994) (citing Hall v. Britton, 216 Ala. 265, 267, 113 So. 238, 239 (1927))).

On that issue, notwithstanding the fact that Smith may have suffered from Alzheimer’s disease, the administratrix will have the burden of proving Smith’s incapacity to execute the deed, see Ex parte Chris Langley Timber & Management, Inc., 923 So.2d 1100 (Ala.2005), and, as our supreme court has pointed out, a fact-finder “ ‘ “ ‘may find [expert] testimony [regarding the capacity of a grantor to execute a deed] adequately rebutted by the observations of mere laymen.’ ” ’ ” Ex parte Chris Langley Timber & Mgmt., Inc., 923 So.2d at 1108 (quoting Lackey v. State, 615 So.2d 145, 153 (Ala.Crim.App.1992), quoting in turn Ellis v. State, 570 So.2d 744, 752 (Ala.Crim.App.1990), quoting in turn United States v. Mota, 598 F.2d 995, 999 (5th Cir.1979), and citing Greider v. Duckworth, 701 F.2d 1228, 1234 (7th Cir.1983)).

We agree with the administratrix’s arguments regarding good cause and lack of prejudice. Accordingly, we hold that the trial court did not exceed the limits of its discretion by allowing the amendment to the complaint.

II. Delivery of the Deed

In her motion for a summary judgment against Brown, the administratrix alleged that on February 17, 2000, Smith purported to convey a remainder interest in the property to Deakle and Brown, as joint tenants with the right of survivorship, and to retain a life estate for herself. She attached to her motion a copy of the deed indicating that the instrument was filed in the Mobile Probate Court on February 24, 2000. The administratrix further alleged that defendant Brown stated, in deposition testimony, that she had no knowledge of the deed until she was served with the summons and complaint in this lawsuit; that she had done nothing to acquire the property described in the deed; and that she did not believe she was entitled to the property. The motion concluded that the deed was inoperative as to Brown because it was never delivered, actually or constructively, to Brown.

In opposition to the administratrix’s motion for a summary judgment, Brown responded with legal authorities cited for the propositions (1) that recordation of a deed is prima facie evidence of delivery to the named grantees and (2) that a grantor’s intent rather than a grantee’s knowledge of the conveyance is determinative as to questions regarding delivery.

Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

“Whether a deed or other conveyance has been delivered is a question of fact to be ascertained from the circumstances surrounding the alleged delivery.” Jesse P. Evans III, Alabama Property Rights and Remedies § 4.3[p] at 4-45 (3d ed.2004) (footnote omitted). The intent of the grantor, not the knowledge of the grantee, is of paramount importance in determining whether a deed has been delivered. See, e.g., Strickland v. Griswold, 149 Ala. 325, 43 So. 105 (1907) (holding that when a grantor delivered a deed to one of the co-grantees therein, telling her to keep it in a box and to deliver it to the proper parties at his death, the title passed at that time, irrespective of the place where the deed was kept); and Arrington v. Arrington, 122 Ala. 510, 26 So. 152 (1899) (when father of illegitimate children handed a deed to children’s mother and told her to look after the children, delivery was effective as to the children).

In West v. West, 620 So.2d 640, 642 (Ala.1993), the Alabama Supreme Court set out the following general principles with respect to the delivery of a deed:

“Generally, a deed is ineffective until it is delivered. See Williams v. Mobil Oil Exploration & Producing Southeast, Inc., 457 So.2d 962, 965 (Ala.1984). The question of whether a deed has been delivered is one of fact, depending upon the intent of the grantor, as ascertained from all the surrounding circumstances. Boohaker v. Brashier, 428 So.2d 627, 629 (Ala.1983); Chandler v. Chandler, 409 So.2d 780, 782 (Ala.1981). The intention of the grantor is ‘of paramount importance’ in determining whether a deed has been delivered. Randolph v. Randolph, 245 Ala. 689, 694, 18 So.2d 555, 559 (1944). Although delivery to one of two or more grantees is generally sufficient to constitute delivery to all, see Am.Jur.2d Deeds § 141 (1983), a party may present evidence to show that the grantor’s intent was not to make delivery to all. See Johnson v. Bridges, 333 So.2d 813, 815 (Ala.1976).”

In the present case, Brown’s unawareness of Smith’s having delivered a deed to Deakle, Brown’s mother, is not determinative, as the trial court apparently believed. The determinative question, which is one of fact inappropriate for resolution on a motion for a summary judgment, is whether Smith intended to convey her property to Brown.

The trial court’s order granting the ad-ministratrix’s motion for leave to amend the complaint is affirmed. The summary judgment against Brown and in favor of the administratrix is reversed, and the cause is remanded for further proceedings.

APPLICATION OVERRULED; OPINION OF JANUARY 27, 2006, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in part and dissenting in part.

I respectfully dissent as to Part I of the main opinion; I concur as to Part II of that opinion.

      . The record contains no information with respect to the identity of the person who recorded the deed.

        . The summary-judgment motion states that an excerpt from the deposition testimony is attached as "Exhibit B” to the motion. There is no "Exhibit B” in the record before this court. Its absence, however, does not affect our decision on this appeal.