source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    CAROLINA CASUALTY INSURANCE COMPANY v. Wendell WILLIAMS d/b/a W & W Trucking.
    1050177.
    Supreme Court of Alabama.
    June 9, 2006.

      Robert C. Black, Jr., Joana S. Ellis, and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant Carolina Casualty Insurance Company.
    John A. Tinney, Roanoke, for appellee Wendell Williams d/b/a W & W Trucking.
    Larry W. Morris and Nancy Eady of Morris, Haynes & Hornsby, Alexander City; and Clay Hornsby of Morris, Haynes & Hornsby, Birmingham, filed a brief on behalf of Johnny Ray Bradley, individually and as next friend of Taylor Bradley, and Shirley Bradley, individually.
   STUART, Justice.

The primary issue in this appeal from a declaratory judgment is whether a vehicle the certificate of title to which is issued in the name of Williams Trucking, a sole proprietorship operated by Wendell Williams before he began operating as W & W Trucking, is entitled to coverage as a temporary substitute vehicle under a policy of insurance issued by Carolina Casualty Insurance Company in the name of ‘W & W Trucking, Wendell Williams d/b/a.” The trial court entered a judgment declaring that Carolina Casualty owed coverage under the temporary-substitute provision of the policy. We reverse and remand for further proceedings.

Facts

On May 28, 2004, Matthew Shields, an employee of W & W Trucking, was driving a 1984 Mack dump truck. While Shields was driving, the dump truck collided with a vehicle being operated by Johnny Ray Bradley. Bradley and his minor son, a passenger in Bradley’s vehicle, were injured. Bradley, individually and on behalf of his son, sued Williams d/b/a W & W Trucking seeking to recover damages as a result of the accident.

Williams filed a third-party complaint against Carolina Casualty, seeking a declaration that the 1984 Mack dump truck Shields was driving at the time of the accident was covered under a policy of insurance issued by Carolina Casualty to “W & W Trucking, Wendell Williams d/b/a.” That policy, a commercial transportation policy, was effective March 5, 2004, through July 29, 2004, and provided in pertinent part: “Section I — Covered Autos. Item Two of the Declarations shows the ‘autos’ that are covered ‘autos’ for each of your coverages.” The policy also provided coverage for

“any ‘auto’ you do not own while used with the permission of its owner as a temporary substitute for a covered ‘auto’ you own that is out of service because of its:
“a. Breakdown;
“b. Repair;
“c. Servicing;
“d. ‘Loss’; or
“e. Destruction.”

Williams asserted that the 1984 Mack dump truck was covered under the policy as a “temporary substitute” vehicle.

Carolina Casualty denied that the Mack dump truck was a temporary substitute vehicle under the policy and filed a counterclaim seeking a judgment to that effect. After discovery was conducted, Williams, Carolina Casualty, and Bradley filed motions for a summary judgment. The trial court conducted a hearing on those motions, at which time the parties requested that the trial court render its decision on the coverage issue based on the parties’ evidentiary, submissions. On August 11, 2005, the trial court issued an order severing the declaratory-judgment claim on the coverage issue from the liability claims.

On September 21, 2005, the trial court rendered its decision on the coverage issue and issued an order; the trial court concluded that the 1984 Mack dump truck was a “temporary substitute” vehicle as that term is defined in the Carolina Casualty policy and that the Mack dump truck was, therefore, entitled to coverage under the policy. The trial court stated:

“The Court has received and reviewed all submissions by any of the parties to this action, including the Bradleys, on the issue of coverage. The Court has in addition carefully considered the arguments of all parties at the hearing.
“At the hearing, the parties asked the Court to rule both on the summary judgment motions of Carolina Casualty and Wendell Williams, the insured, and to make a ruling with respect to coverage should any issues be left for resolution following the motion for summary judgment by Carolina Casualty. The Court now does so.
“It is not disputed that the dump truck involved in this accident is not listed on the Carolina Casualty policy. The Court finds, however, for the following reasons, that the vehicle did qualify as a temporary substitute vehicle and therefore was covered under the Carolina Casualty policy.
“The named insureds under the policy are W & W Trucking, and Wendell Williams, when he is doing business as W & W Trucking. The Court can find no other explanation for the term ‘D/B/A’ behind the name of Wendell Williams other than to restrict coverage for Mr. Williams to those occasions when his actions pertain to his sole proprietorship, W & W Trucking. Had Carolina Casualty desired to make Wendell Williams an unconditional named insured, it could easily have done so by listing the named insureds as W & W Trucking and Wendell Williams’ with no qualifier to Mr. Williams’ name.
“The truck in question was purchased in 1992 by Williams Auto Sales. At the time of the purchase, Williams Auto Sales was a partnership between Mr. Williams and his then-wife, Sheila. In 1994, Williams Auto Sales was incorporated and the name became Williams Auto Sales[,] Paint & Body Shop, Inc. Mr. Williams testified that the assets of the partnership, including the dump truck at issue here, became assets of the new corporation. One of the purposes of Williams Auto Sales, Inc., as a corporation was to ‘engage in trucking business of all kinds and all aspects of the trucking business.’ (Art. of Inc., Williams Auto.)
“At the time of purchase, the title to the truck was issued in the name of Williams Trucking, not W & W Trucking. The name of the owner on the truck title was never changed.
“Mr. Williams testified through deposition that Williams Trucking was owned by Williams Auto Sales[,] Paint & Body Shop, Inc., and testified that while many of the assets of Williams Auto Sales[,] Paint & Body Shop, Inc., including many trucks, were transferred to him as part of the divorce settlement between himself and Sheila Williams, certain assets were not transferred. These assets include several cars and the dump truck involved in this case, all of which are kept by Mr. Williams at the truck yard from which W & W Trucking operates. Mr. Williams also explained that he did not believe that W & W Trucking, or himself when he was doing business as W & W Trucking, owned the dump truck.
“The Court finds that Carolina Casualty has presented no evidence that W & W Trucking, or Mr. Williams when he was doing business as W & W Trucking, owned the dump truck. Accordingly, the court finds that the dump truck was not owned by W & W Trucking, or Mr. Williams d/b/a W & W Trucking. Therefore, the dump truck is not a vehicle owned by named insured, and the first prong of the definition of a temporary substitute vehicle of the policy is met.
“The second requirement for the vehicle to be a temporary substitute vehicle is that a vehicle listed on the policy be unavailable for use for one of several reasons, including repairs. It is not disputed that the only other dump truck on the yard is a 1992 Kenworth dump truck that is listed on the Carolina Casualty policy and it is not disputed that the 1992 Kenworth dump truck was being repaired on the day the accident occurred.
“Because the dump truck involved in the accident was not owned by Wendell Williams d/b/a W & W Trucking, nor by W & W Trucking, and because it was being used as a substitute for a 1992 Kenworth dump truck that was listed on the policy and which was being repaired, the Court finds that the dump truck involved in the accident was a temporary substitute vehicle.
“Accordingly, coverage lies under the policy for this accident....”

(Emphasis in original.)

Carolina Casualty appeals, raising the following issues:

“1. Whether an automobile or commercial vehicle titled or registered in the name of an insured’s sole proprietorship, which is admittedly not covered under the insured’s automobile insurance policy, may nevertheless qualify for coverage under the same policy on the grounds that it is a ‘non-owned’ vehicle being used as a temporary substitute for an insured vehicle.
“2. Whether the undisputed evidence sustained the trial court’s ruling that the dump truck at issue in this case was in fact owned by a corporation as claimed by the insured, which would render it eligible for coverage.”

(Carolina Casualty’s brief, p. 12.)

Standard of Review
“Our standard of review of this case is governed by statute. Section 12-2-7(1), Ala.Code 1975, states:
“ ‘[I]n deciding appeals, no weight shall be given the decision of the trial judge upon the facts where the evidence is not taken orally before the judge, but in such cases the Supreme Court shall weigh the evidence and give judgment as it deems just.’
“In a case in which a trial court has not heard live testimony, this Court has held that ‘a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and that the reviewing court will review the evidence de novo.’ Eubanks v. Hale, 752 So.2d 1113, 1122 (Ala.1999). Our statutory obligation in a case such as this is to ‘weigh the evidence and give judgment as [we] deem[ ] just.’ ”

Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 70-71 (Ala.2005).

Discussion

In order to resolve the coverage question presented in this case, we must determine the legal owner of the 1984 Mack dump truck involved in the accident. Williams asserts that Williams Auto Sales, Paint & Body, Inc., a now defunct corporation, owns the 1984 Mack dump truck and that, therefore, it qualifies as a temporary substitute vehicle under the policy. Carolina Casualty argues that because the 1984 Mack dump truck is titled in the name of “Williams Trucking,” one of Williams’s sole proprietorships, Williams is the legal owner of that dump truck and it does not therefore qualify as a temporary substitute vehicle under the policy.

We begin by noting that, under Alabama law, the manner in which a vehicle is titled is prima facie evidence of ownership. See § 32-8-39(d), Ala.Code 1975 (“A certificate of title issued by the department [of revenue] is prima facie evidence of the facts appearing on it.”); see also § 32-8-44(e), Ala.Code 1975 (“as between the parties, a transfer by an owner is not effective until the provisions of this section have been complied with”). However, a certificate of title is not the only-method of establishing ownership, and the presumption of ownership established by the certificate of title is a rebuttable one. See Ranger Insurance Co. v. Whitlow, 514 So.2d 1338 (Ala.1987) (citing Congress Fin. Corp. v. Funderburk, 416 So.2d 1059 (Ala.Civ.App.1982)).

Additionally, Alabama law makes no distinction between an individual and a sole proprietorship operated by the individual. They are considered the same for legal purposes. See Clardy v. Sanders, 551 So.2d 1057, 1059-60 (Ala.1989) (recognizing that an individual who operates a sole proprietorship is not a separate legal entity from the sole proprietorship). Couch on Insurance also reaches that same conclusion when considering the issue of nonowned vehicles for purposes of insurance coverage:

“An automobile owned by or registered in the name of a partnership of which the insured is one of the partners is not owned by the insured-partner. Thus, the insured’s policy affords coverage under a ‘non-owned automobile’ provision. Complications may arise when the partner operates a personal vehicle. A question of fact may arise as to whether the partner was engaged in the business of the insured-partnership or personal business so as to bring the use of the personal automobile within coverage of the partnership’s policy.
“The situation is different when the insured is also a sole proprietorship. If the automobile is titled under the trade name of an insured’s sole proprietorship, then the vehicle does not qualify as a ‘non-owned vehicle’ within the terms of the insured’s policy.”

8A Steven Plitt et al., Couch on Insurance § 118:29 (3d ed.2004) (footnotes omitted; emphasis added). Thus Couch recognizes that when the insured is also a sole proprietorship, any vehicle titled in the name of the sole proprietorship is considered to be owned by the insured. Under those circumstances, the vehicle cannot be considered a “nonowned” vehicle for purposes of the policy.

Although the precise issue of who is the legal owner of a vehicle titled in the name of a sole proprietorship appears to be one of first impression in this State, other jurisdictions have addressed the issue. See, e.g., Providence Washington Ins. Co. v. Valley Forge Ins. Co., 42 Cal.App.4th 1194, 1199, 50 Cal.Rptr.2d 192, 194 (1996) (considering the issue of who owned a rental van titled in the name of “A-l Rent-A-Car,” a sole proprietorship, and holding that the rental van was owned by the individual operating the business and not by the business — “ ‘[a] sole proprietorship is not a legal entity itself. Rather, the term refers to a natural person who directly owns the business ....’” (quoting Friedman, Cal. Practice Guide: Corporations 1 (The Ritter Group 1995))); Allstate Ins. Co. v. Willison, 885 P.2d 342, 344 (Colo.Ct.App.1994) (a vehicle titled in the name of “Bill’s Service and RV Center,” a sole proprietorship, was actually owned by the sole proprietor and not by the business, and thus did not qualify for coverage under the sole proprietor’s individual insurance policy, which excluded coverage for unspecified vehicles owned by the insured); Purcell v. Allstate Ins. Co., 168 Ga.App. 863, 865, 310 S.E.2d 530, 532 (1983) (construing business automobile insurance policy issued in the name of “Purcell Radiator Serv., an individual business” and recognizing that “[t]he fact that [Mr. Purcell] purchased this automobile in the name that he used in doing business does not contradict the fact that he owned the automobile as an individual”); Edgley v. Lappe, 342 F.3d 884 (8th Cir.2003) (applying Minnesota law in construing insurance policy issued to “Harold and Benita Lappe d/b/a Lappes Express Cab” and holding that temporary-substitute-vehicle clause in policy, which defined a covered substitute vehicle as “any vehicle you do not own,” precluded coverage for a vehicle owned by taxicab-company owners as individuals that had been substituted for a covered taxicab); Gabrelcik v. National Indem. Co., 269 Minn. 445, 131 N.W.2d 534 (1964) (construing automobile-liability insurance policy issued to “Mary Gabrelcik d/b/a Fridley Cab Company” and holding that because the insurance policy excluded coverage for any temporary substitute vehicle if owned by the spouse of the named insured who resided in same household, the policy afforded no coverage for an automobile owned by Mary Gabrelcik’s husband and registered in the name of his used-car business that husband operated as a sole proprietorship when that automobile was loaned to Mary Gabrelcik for use as a substitute taxicab); Hall v. Auto-Owners Ins. Co., 265 Neb. 716, 658 N.W.2d 711 (2003) (construing insurance policy issued to “Kenneth L. Gearhart d/b/a Kenny’s Truck Repair” that provided commercial general-liability coverage and garage-liability coverage and holding that an insured was not a legal entity separate and distinct from the owner of an automobile for purposes of garage-liability coverage, which provided that such coverage did not extend to a vehicle “owned in whole or in part by the named insured,” and for purposes of commercial general-liability provisions, which excluded coverage for vehicles owned by “any insured,” even though insured was listed as doing business under another name); CU Lloyd’s of Texas v. Hatfield, 126 S.W.3d 679 (Tex.Ct.App. 2004) (construing commercial general-liability insurance policy issued to “Mays Younglandia, Benjamin F. May d/b/a” and holding that because that policy excluded coverage for all vehicles owned by the insured and because the insured was a sole proprietorship that is legally the same as the individual proprietor, a vehicle owned by the individual proprietor was excluded from coverage under the policy); Recalde v. ITT Hartford, 254 Va. 501, 492 S.E.2d 435 (1997) (construing insurance policy issued in the name of “A & R Industrial Sweeping & Cleaning,” a sole proprietorship, in case in which owner of the sole proprietorship sought a judgment declaring that business automobile-liability coverage provided liability coverage for an accident involving the proprietor’s individually owned vehicle and holding that there is no legal distinction between the proprietor and his business).

In each of these cases, the court concluded that there was no legal distinction between an individual who operated a business as a sole proprietor and the business itself. Each of these courts also recognized that a vehicle registered in the name of a sole proprietorship is deemed to belong to the individual sole proprietor. We agree with these principles.

Additionally, in Ranger Insurance Co. v. Whitlow, supra, this Court addressed the quality of the evidence required to overcome the presumption of ownership created by a certificate of title. In that case, this Court affirmed the trial court’s judgment holding that the insured was driving a temporary substitute vehicle at the time of the accident. The Court stated that, although the title to the truck was in the insured’s name, there was substantial proof that the insured had sold the truck to his father and had borrowed the truck as a substitute vehicle while the insured’s vehicle was being repaired.

At the bench trial, the insured, his wife, and his parents testified that, before the accident, the insured had acquired a newer vehicle and that, upon doing so, he had sold the truck to his father. The insured and his family also established that, after the sale but before the accident, the parents had paid for the license tags for the truck and had paid to have the truck repainted. Based on this evidence, the trial court ruled that the truck did not belong to the insured and that, therefore, the vehicle qualified for coverage as a temporary substitute vehicle. On appeal, this Court concluded that the trial court’s ruling was not plainly and palpably erroneous and affirmed the judgment in favor of the insured.

In Ranger Insurance Co., the evidence presented in support of the insured’s claim was substantial enough to overcome the presumption of ownership created by the certificate of title. This Court’s affirmance in that case was based on the ore tenus rule and the quality and magnitude of the evidence presented by the insured.

In the instant case, however, the ore tenus rule is not applicable; we review the evidence de novo. Our review of the evidence reveals the following:

Since the 1990s, Williams has been involved in several businesses. In the early 1990s, Williams operated a partnership by the name of ‘Williams Auto Sales.” Williams Auto Sales was engaged in the trucking business. Additionally, the evidence appears to establish that, at some point in the 1990s, Williams was operating a sole proprietorship by the name of Williams Trucking” or, alternatively, that Williams was in some way associated with the name “Williams Trucking.”

It is also undisputed that the 1984 Mack dump truck involved in the accident was purchased in November 1992 for use by the partnership Williams Auto Sales.” It is undisputed that in December 1992 title to the dump truck was transferred from “Williams Auto Sales” to Williams Trucking,” one of Williams’s sole propri-etorships. Actual title to the dump truck remained in the name of “Williams Trucking” through the date of the accident.

However, Williams testified that in 1994 he and his then wife, Sheila, incorporated Williams Auto Sales under the name Williams Auto Sales, Paint & Body, Inc. Williams and Sheila were the sole shareholders of the corporation, each holding 500 shares. Williams also testified that, upon the creation of the corporation in 1994 and in exchange for the issuance of the stock in the corporation to Williams and his wife, the corporation acquired the assets of “Williams Trucking,” including the 1984 Mack dump truck. It is undisputed that no bill of sale exists to document the transfer of the Mack dump truck, and no other documentation of the acquisition of the dump truck by the corporation exists. Williams testified that, as of the date of the incorporation of Williams Auto Sales, Paint & Body, Inc., the 1984 Mack dump truck belonged to the corporation.

At some point during the corporation’s existence, Williams acquired a 1992 Ken-worth dump truck. Although Williams testified that this Kenworth dump truck was purchased for use by the corporation, it was titled in the name of Williams Trucking.” Williams did not explain why the 1992 Kenworth dump truck purchased during the corporation’s existence was titled in the name of Williams Trucking” rather than in the name of the corporation.

In 1998, Williams and Sheila divorced. In that same year, Williams began operating his trucking business under the name W & W Trucking, a sole proprietorship. That same business is also referred to as WTW Enterprises. W & W Trucking and WTW Enterprises are both trade names under which Williams operates his trucking business. He considers them to be the same business, and they operate out of the same bank account.

As a result of the divorce, Williams and Sheila divided their assets. Williams testified that in the divorce settlement he acquired the trucking business while Sheila acquired their personal property. Williams testified that any trucks purchased since 1998 (the year of his divorce from Sheila) have been titled in name of WTW Enterprises. Williams considers himself the sole owner of any vehicles purchased or acquired after 1998.

However, Williams and Sheila did not legally dissolve the corporation; the corporation merely ceased all activities. Williams testified that the corporation has had no activity since 1998. According to Williams, the corporation has not produced any revenue and has not maintained any financial records since 1998. Williams testified that, since his divorce, all revenue generated by his business activities has been credited to WTW Enterprises.

During his deposition, the lawyer for Carolina Casualty asked Williams how those vehicles listed as “covered autos” on the Carolina Casualty insurance policy were titled. Williams responded that he did not know. He testified that, as to the vehicles he was awarded in the divorce settlement, he believed he had changed all of those titles to indicate the owner as WTW Enterprises. He stated that the serial numbers for the trucks he was awarded as part of the divorce settlement were not specified, and he was not sure if the title to all of them had been transferred to WTW Enterprises. He testified that the record could speak for itself. However, he stated that the trucks he purchased after his divorce should have been titled in the name of WTW Enterprises.

Despite Williams’s claim that the assets of the corporation became his property after the divorce, Williams testified that the corporation continues to own the 1984 Mack dump truck and a few other vehicles. Williams believes that his ex-wife still retains an ownership interest in the 1984 Mack dump truck and the other vehicles that he claims were not addressed in the divorce settlement. He testified that, when he and Sheila divorced, they never decided what to do with those vehicles; he also testified that Sheila knows where the vehicles are located but that she has not attempted to force a sale of those vehicles.

The lawyer for Carolina Casualty also asked Williams if, other than the 1984 Mack dump truck involved in this accident, he had an ownership interest in any other vehicle — truck or otherwise — that was not specifically identified on the insurance policy. Williams testified that there were two wreckers that his daughter and her husband were using in a business they had taken over from Williams.

Williams produced a 1994 tax return for the corporation that reflected approximately $58,000 in depreciation of assets. However, Williams testified that he did not have a schedule identifying which trucks or other vehicles had been depreciated on the corporate tax return. Although Williams acknowledged that he had taken depreciation on the 1984 Mack dump truck in the past, he had no information as to whether depreciation of the Mack dump truck had been reflected on a tax return since 1998, the year the corporation ceased operating. Williams could not provide any information as to when depreciation on the 1984 Mack dump truck had last been taken and on which tax return. Williams testified that those vehicles not obtained by him in the divorce settlement were parked at the “truck shop,” which is located at the same physical address of W & W Trucking and is the same location where vehicles used in the business of W & W Trucking and WTW Enterprises are routinely parked.

In explaining why the 1984 Mack dump truck was purchased for use by Williams Auto Sales but was titled in the name of Williams Trucking, Williams testified that Williams Auto Sales was engaged in the trucking business. Williams explained that, after he purchased the 1984 Mack dump truck in 1992, he went to the courthouse to pay the sales tax on that vehicle and to have the title issued. While he was at the courthouse, someone told him that because his sole proprietorship was engaged in the business of trucking, the title to its vehicles should be in the name of “Williams Trucking.” Williams later testified that, after the corporation was created, the corporation acquired Williams Trucking and Williams Trucking did business under the corporation’s name.

However, at one point during his deposition, Williams denied that he ever operated a business by the name of Williams Trucking. At another point, Williams testified that Williams Trucking operated as a sole proprietorship until the corporation was created and that, upon the creation of that corporation, Williams Trucking was acquired by the corporation.

Additionally, as noted above, the 1992 Kenworth dump truck was purchased after the corporation was created, but, like the 1984 Mack dump truck, it was titled in the name of Williams Trucking. Williams testified that, despite the name shown on its certifícate of title, he considered the 1992 Kenworth dump truck to belong to WTW Enterprises. However, Williams claimed that the 1984 Mack dump truck, titled in the same manner as the Kenworth dump truck, had not become the property of WTW Enterprises but that the corporation continued to own that vehicle.

Although the 1984 Mack dump truck and the 1992 Kenworth dump truck were both titled in the name of Williams Trucking, Williams identified only the 1992 Ken-worth dump truck as a “covered auto” on the Carolina Casualty insurance policy; he did not specifically list the 1984 Mack dump truck as a covered vehicle under that policy. Williams testified that, on the declarations page of the Carolina Casualty insurance policy, he identified as “covered autos” only those vehicles he believed belonged solely to him.

Based on this evidence, it is undisputed that the evidence created a rebuttable presumption that Williams Trucking, a sole proprietorship operated by Williams, owned the 1984 Mack dump truck. Because a sole proprietorship is deemed to be the same entity as its owner, the evidence created a rebuttable presumption that the 1984 Mack dump truck was owned by Williams.

Williams’s evidence offered to rebut that presumption consisted of bare assertions that he did not own the 1984 Mack dump truck because of undocumented business transactions among his own closely held businesses. Without some documentation or disinterested testimony to bolster Williams’s claims that the Mack dump truck became or remained the property of the corporation and was not the property of the sole proprietorship, we cannot so lightly disregard the presumption of ownership that arises from the certificate of title to the Mack dump truck, which shows that it is owned not by the corporation but by Williams Trucking. A different conclusion would create and encourage uncertainty in insurance matters and business transactions.

By this holding, we do not mean to imply that testimony relating to changes in the ownership of a vehicle can never overcome the rebuttable presumption created by a certificate of title. We simply hold that, in this case, Williams’s testimony, standing alone, did not rise to the level required to rebut the presumption of ownership established by the certificate of title.

Because we conclude that Williams did not overcome the presumption of ownership created by the certificate of title, the sole proprietorship of “Williams Trucking” must be deemed the owner of the 1984 Mack dump truck. Under Alabama law, Williams Trucking, a sole proprietorship, is considered the same legal entity as Williams, the individual. Therefore, Williams is deemed to own the 1984 Mack dump truck titled in the name of his sole proprietorship.

Because the Carolina Casualty insurance policy does not extend coverage as a temporary substitute vehicle to any vehicle owned by the insured, i.e., Williams, the 1984 Mack dump truck cannot qualify as a temporary substitute vehicle for purposes of the Carolina Casualty policy. Because we find no ambiguity in the policy as it relates to the temporary-substitute provision, we must enforce the terms of the insurance policy as they are written. Liggans R.V. Ctr. v. John Deere Ins. Co., 575 So.2d 567, 569 (Ala.1991).

We conclude that the 1984 Mack dump truck is not entitled to coverage under the Carolina Casualty policy as a temporary substitute vehicle. Therefore, we reverse the judgment of the trial court. We do not address the other issues presented by this appeal because they have not been addressed by the trial court and are not properly before us. The cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

      . Bradley's wife also asserted a claim for loss of consortium.

      . Williams testified that any trucks purchased after 1994 and before 1998 were purchased for use by the corporation.

      . Williams testified that WTW Enterprises existed as a sole proprietorship before his divorce from Sheila. According to Williams, WTW Enterprises is "associated with W & W Trucking now."

      . The corporation has not filed tax returns for several years; thus, the evidence indicates that the corporation has not, as of the date of Williams’s deposition, claimed depreciation on the 1984 Mack dump truck for at least several years.


author: MURDOCK, Judge.

text:
    WIX CORPORATION v. Stanton Austin DAVIS.
    2040198.
    Court of Civil Appeals of Alabama.
    Sept. 16, 2005.
    Rehearing Denied June 23, 2006.

      Kyle L. Kinney and John B. Welsh of Gaines, Wolter & Kinney, Birmingham, for appellant.
    Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   MURDOCK, Judge.

Wix Corporation seeks relief from an order of the Jefferson Circuit Court awarding Stanton Austin Davis medical benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala. Code 1975, for a heart condition that allegedly arose out of Davis’s employment at Wix.

In September 1998, Davis sued Wix in the Jefferson Circuit Court. Davis requested that the circuit court award him workers’ compensation benefits for injuries allegedly suffered at work on September 20, 1996. Davis alleged that he suffered injuries to his knee, back, and mouth after he “blacked out” and fell at work. Davis also sought benefits relating to a heart condition that he claimed was caused by his employment.

In February 2000, Davis and Wix entered into a settlement agreement regarding all of Davis’s claims with the exception of his claim for the cost of medical treatment for his heart condition. As to Davis’s heart condition, the settlement agreement stated:

“In regards to medical treatment for the heart, the plaintiff agrees that he will continue to seek medical treatment from his health insurance carrier and shall submit all claims for the heart condition as long as he has health insurance. Upon termination of any health insurance where the plaintiff is no longer insured, he will then be able to seek medical treatment in regards to the heart from the employer under workers’ compensation as long as said treatment is reasonable and necessary and related to the alleged September 20, 1996 injury pursuant to the Workers’ Compensation Act of Alabama.”

The circuit court approved the settlement agreement, and it retained jurisdiction over the question whether Davis was entitled to medical benefits for his alleged heart condition.

In February 2004, Davis filed a “Petition for Medical Relief’ in which he sought an order requiring Wix to pay for his “cardiovascular/cardiac care” pursuant to the terms of the Workers’ Compensation Act. Wix opposed Davis’s petition, arguing (1) that compelling payment for Davis’s cardiac care would violate the settlement agreement and (2) that Davis’s heart condition was not related to his employment.

After a hearing regarding Davis’s petition, the circuit court requested that the parties submit briefs. Upon receipt of the briefs, on October 19, 2004, the circuit court entered an order in which it determined that Davis no longer had health insurance as contemplated by the settlement agreement and that, pursuant to the terms of the settlement agreement, Wix was required to pay medical benefits for Davis’s cardiac care.

On November 80, 2004, Wix filed a petition for a writ of mandamus with this court. On December 21, 2004, Davis filed a motion to dismiss Wix’s petition on the ground that the circuit court’s order was a final, appealable judgment as to which mandamus relief was not available. On February 8, 2005, this court denied that motion. Before proceeding to the merits of Wix’s petition, we find it necessary to revisit the denial of Davis’s motion to dismiss Wix’s petition for a writ of mandamus.

“Because mandamus is an extraordinary remedy, the standard of review on a petition for a writ of mandamus is whether there is a clear showing of error on the part of the trial court.” Ex parte Atlantis Dev. Co., 897 So.2d 1022, 1024 (Ala.2004).

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

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

Reiterating the third element quoted above, this court stated in Ex parte Amerigas, 855 So.2d 544 (Ala.Civ.App.2003), that “[rjeview by mandamus is not appropriate where the petitioner has another adequate remedy, such as an appeal.” Id. at 546. This court further stated:

“ ‘ “The rules of law applicable to the case are simple and well settled. The writ of mandamus will lie from a superi- or to an inferior or subordinate court, in a proper case, to compel it to hear and decide a controversy of which it has jurisdiction; or, where the cause has been heard, to compel such inferior court to render judgment or enter a decree in the given case. But its use is not warranted to direct what particular judgment shall be rendered in a pending cause, nor is it the proper function of such remedial writ to re-examine, or correct errors in any judgment or decree so rendered. ‘The rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done; or if it be ministerial, the mandamus will direct the specific act to be performed.’ Ex parte Newman, [81] U.S. 152, 14 Wall. 152, 169, 20 L.Ed. 877 [ (1871) ]; High on Extr. Rem. §§ 150-152, 266; Ex parte Schmidt, 62 Ala. 252 [ (1878) ]; Ex parte Mahone, 30 Ala. 49 [ (1857) ]. The principle, of course, universally prevails, that in no event will the writ ever be awarded where jull and adequate relief can be had by appeal, writ of error, or otherwise.” ’ ”

Ex parte Amerigas, 855 So.2d at 547 (quoting State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting in turn State v. Williams, 69 Ala. 311, 316 (1881))) (some emphasis original; some emphasis added). In short, “[m]andamus should not issue ‘ “to re-examine[ ] or correct errors in a[ ] judgment.” ’ ” Ex parte Amerigas, 855 So.2d at 547 (quoting State v. Cobb, 288 Aa. at 678, 264 So.2d at 526).

Citing Homes of Legend, Inc. v. O’Neal, 855 So.2d 536 (Ala.Civ.App.2003), Wix argues that the circuit court’s October 2004 order fails to satisfy the requirement of finality necessary for appeal. We disagree.

In Homes of Legend, the employee filed a motion in the trial court during the pendency of his underlying claim for workers’ compensation benefits; the motion sought a determination as to whether his former employer or his current employer was to be responsible for medical treatments to be received during the pendency of the litigation: “O’Neal filed a motion to compel Homes of Legend, or in the alternative, Amerigas, to pay for his medical treatment for his alleged injuries while the issue of liability was being decided.” 855 So.2d at 537 (emphasis added). Accordingly, the resulting trial-court order with which this court was concerned in Homes of Legend was entered pending the eventual outcome of the employee’s underlying workers’ compensation claim. It was in this context that this court concluded that that order was not a final order from which an appeal would lie. Id. at 537-38.

In the present case, however, all of Davis’s claims for all injuries related to the events of September 20, 1996 — other than Davis’s claim for medical treatment for his heart condition — were resolved by means of an agreement between the parties and a court order approving that agreement in February 2000. The only issue remaining to be resolved at the time of the entry of the circuit court’s October 2004 order was the issue whether Wix was liable for medical benefits for Davis’s heart condition under the Workers’ Compensation Act. While the order that was the subject of the appeal in Homes of Legend was entered pending a subsequent decision on the issue of liability, the order at issue in the present ease is the decision on the issue of liability. Because of this, and because there are no associated issues that remain unresolved, that order constitutes a final, appealable judgment.

Wix also cites Ex parte Brookwood Medical Center, Inc., 895 So.2d 1000 (Ala.Civ.App.2004), and Ex parte Wal-Mart Stores, Inc., 794 So.2d 1085 (Ala.2001), in opposition to Davis’s motion to dismiss Wix’s petition. Wix argues that each of those cases is an example of a case in which the appellate court considered the merits of a petition for a writ of mandamus challenging a trial-court order awarding medical benefits. Those cases, however, addressed interlocutory trial-court orders entered during the pendency of litigation as to the compensability of the employees’ injuries. Moreover, the issue in those cases was not the employers’ liability for the employees’ medical treatment. Instead, in Ex parte Brookwood Medical Center, the employer did not, in the mandamus proceeding before this court, dispute its responsibility for paying for reasonable and necessary medical treatments pending the trial of the underlying case; rather it merely challenged how that treatment was to be provided. See Ex parte Brookwood Med. Ctr. (addressing an employer’s petition for a writ of mandamus in which the employer challenged a trial-court order requiring the employer to provide a second panel of four physicians from which the employee could choose a pain-management specialist, see generally § 25-5-77(a), Ala.Code 1975); and Ex parte Wal-Mart Stores (addressing an employer’s petition for a writ of mandamus in which the employer objected to a specific surgery not recommended by the employee’s current authorized treating physician). Those eases, too, are therefore distinguishable from the present case.

In light of the foregoing, mandamus is not available to Wix as a mechanism for obtaining relief from the circuit court’s October 2004 judgment. We note, however, that Wix’s petition was filed within the 42-day time period allowed for filing a notice of appeal from the circuit court’s October 2004 judgment. We therefore elect to treat Wix’s petition as an appeal of that judgment, and we now proceed to consider the merits of the arguments made by the parties in their briefs to this court.

In entering its October 19, 2004, judgment, the circuit court relied upon documentary evidence submitted by the parties; no live testimony was received by the court at the hearing on Davis’s petition for medical relief. Accordingly, the deference normally accorded to a trial court’s findings of fact based upon the receipt of evidence ore tenus is not applicable here. Instead, this court must conduct a de novo review as to both the circuit court’s findings of fact and its conclusions of law. Lepeska Leasing Corp. v. State Dep’t of Revenue, 395 So.2d 82, 83 (Ala.Civ.App.1980). See Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

The outcome of this appeal is governed by the parties’ settlement agreement, which provides, in part:

“In regards to medical treatment for the heart, the plaintiff agrees that he will continue to seek medical treatment from his health insurance carrier and shall submit all claims for the heart condition as long as he has health insurance. Upon termination of any health insurance where the plaintiff is no longer insured, he will then be able to seek medical treatment in regards to the heart from the employer under workers’ compensation as long as said treatment is reasonable and necessary and related to the alleged September 20, 1996 injury pursuant to the Workers’ Compensation Act of Alabama.”

(Emphasis added.)

In keeping with the parties’ settlement agreement, for several years Davis sought and received care and treatment for his cardiac condition that was paid for by a health-insurance policy provided to Davis through American Health, Inc. Sometime in 2003, however, this insurance policy terminated, at which time Medicare became Davis’s primary medical insurer.

The circuit court interpreted the first of the two above-emphasized passages of the settlement agreement as referring only to “private” health insurance, and not to Medicare insurance. We are not persuaded that, from its plain language, that passage can be so interpreted. Nonetheless, even if the reference to health insurance in the settlement agreement was not intended by the parties to be limited to “private” insurance, the circuit court correctly notes in its judgment that Medicare coverage is not to be available for the cost of treatments for injuries that would otherwise be covered under a state’s Workers’ Compensation Act. See 42 U.S.C. § 1395y(b)(2)(A)(ii).

Accordingly, it might be asked whether the parties intended by their settlement agreement to remove Davis’s injuries from coverage under the Workers’ Compensation Act, in an effort to cause Davis to retain coverage for those injuries under his Medicare insurance. Even if this was their intent, however, we are not inclined to accept the view that the parties lawfully could contract themselves out of workers’ compensation coverage so as to force Medicare coverage for an injury that, in the absence of such a contract, would in fact be covered by workers’ compensation. We therefore proceed to the question whether Davis’s cardiac condition is in fact one that is covered under Alabama’s Workers’ Compensation Act.

The second of the two passages emphasized in the above-quoted portion of the parties’ settlement agreement, as incorporated in the circuit court’s February-14, 2000, order, states that Davis -will be entitled to coverage under the Workers’ Compensation Act for reasonable and necessary medical treatments for his heart condition as long as the same is “related to the alleged September 20, 1996 injury pursuant to the Workers’ Compensation Act of Alabama.” (Emphasis added.) In his brief to this court, however, Davis argues that the circuit court’s October 19, 2004, judgment should be upheld because the evidence supports a finding that Davis’s work-related activities of September 20, 1996, either caused or contributed to the cardiac condition for which he now seeks medical benefits. In its briefs to this court, Wix does not treat the issue presented to be as narrow as whether the injuries suffered by Davis as a result of his fall on September 20, 1996, in turn caused his heart condition. Instead, Wix, like Davis, treats the issue presented as whether there is substantial evidence that the physical activities in which Davis engaged on September 20, 1996, caused or contributed to his heart condition. We will therefore address both the factual issue of whether Davis’s September 20,1996, physical injuries caused or contributed to his heart condition and the factual issue of whether Davis’s physical activities on September 20, 1996, caused or contributed to his heart condition.

Davis began his employment with Wix in 1961 as a sales representative. Thereafter, he worked for Wix on a continual basis until September 20, 1996. Davis testified that he first noticed symptoms relating to his cardiac condition in 1989 or 1990. The first symptom he noticed was dizziness that would come about when he rose to get out of a chair or out of his automobile, or when he became overheated at work or while climbing at work.

Sometime in 1990, Davis alleges that he was demoted to an “entry-level position.” Davis testified that he felt stress associated with his employment following the demotion as a result of the demotion itself and as a result of the reduced pay and the sales quotas associated therewith. In 1991, Davis was referred to Dr. Jerry Chandler, a cardiologist, because of chest pain and an abnormal treadmill exercise test. Dr. Chandler performed a cardiac catheterization at that time, which showed a blockage in three of Davis’s major coronary arteries. Dr. Chandler testified that, typically, he would expect arterial blockages such as those revealed by the catheteri-zation on Davis in 1991 to grow over time. He also testified that he told Davis’s referring physician at that time that Davis “was very likely to require coronary artery bypass graft at some point in the future.” Despite this prognosis, Dr. Chandler found it appropriate, and Davis elected, to pursue medical therapy rather than surgery at that time.

On September 20,1996, Davis was working at a distributor’s warehouse performing an inventory return in the course of his employment with Wix. Davis testified that he was climbing to access some lightweight filters located on a shelf some 8 to 10 feet above floor level when he began to feel dizzy, blacked out and fell, and suffered injuries to his knee, back, and mouth.

Upon admission to the hospital for treatment of the injuries to his knee, back, and mouth, Dr. Chandler’s partner, Dr. John Egan, Jr., examined Davis and performed an arteriogram. This test showed that the blockage in the three arteries that had been revealed by the catheterization in 1991 had progressed and had become severe enough to warrant bypass surgery, which subsequently was performed. Davis did not suffer a myocardial infarction, or a heart attack, during the events of September 20, 1996, and Dr. Chandler testified that the bypass Davis underwent while in the hospital being treated for his physical injuries could be considered “elective” in nature.

Davis’s treating physician, Dr. Chandler, testified that “[hjypothetically, in theory” Davis’s temporary loss of consciousness and resulting fall on September 20, 1996, “could have been related to his heart.” In other words, there is evidence indicating that Davis’s heart condition could possibly have been a contributing cause of his fall and resulting physical injuries. This testimony, however, obviously does not amount to evidence indicating that the fall and resulting physical injuries contributed to Davis’s heart condition.

Elsewhere in his deposition, Dr. Chandler testified that Davis’s activity in climbing one or two steps in reaching above his head to manipulate relatively light objects on a shelf approximately eight feet off the ground would be the type of activity for which the doctor “would expect [Davis] to have a poor exercise tolerance or poor endurance ... because of the use of the upper body.” Dr. Chandler went on to opine that “if that [activity] raised [Davis’s] blood pressure or caused constriction of the blood vessels which decreased blood flow to the heart, he could have become weak or short of breath or conceivably have irregular heart rhythm.” When asked if this in turn could have had an effect on Davis’s condition, or could have caused Davis to “briefly pass out or lose focus or consciousness],” Dr. Chandler answered, “possibly.” Again, this is evidence indicating that Davis’s heart condition “possibly” could have led to the fall and resulting physical injuries he suffered on September 20, 1996, but it is not evidence indicating that the fall and the physical injuries caused his heart condition.

Dr. Chandler also was asked whether Davis’s physical activity at work, which included occasionally exerting himself through the use of his upper extremities, from 1991 through September 20, 1996, could have affected the progression of his heart condition during that five-year period. Dr. Chandler’s answer to that question, although in the affirmative, does not constitute substantial evidence in support of the circuit court’s judgment for a number of reasons. First, Dr. Chandler noted that he was “speakfing] theoretically because it’s difficult to prove these issues.” In addition, Dr. Chandler was answering a question concerning the effect on Davis’s heart condition of his physical exertion repeatedly throughout a five-year period, not a question specifically aimed at the effect of the particular exertion by Davis on September 20, 1996. As noted previously, Davis first noticed symptoms relating to his cardiac condition in 1989 or 1990, before his demotion at work and approximately six years before the activities in which he engaged on September 20, 1996. Davis’s heart condition was formally diagnosed in 1991. Dr. Chandler testified that he was unable to determine when Davis’s heart condition became as severe as it did. In other words, Davis has not presented evidence from which it fairly can be determined that Davis’s activities on September 20, 1996, caused an abrupt or significant increase in the blockage or the obstruction within Davis’s coronary arteries. “It is a well established principle that evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to ‘guess’ the employer into liability.” Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989).

In light of the foregoing, we conclude that Davis has failed to establish that his cardiac condition was caused either by the injuries he suffered on September 20, 1996, or by the physical activities in which he engaged on that date. The circuit court’s conclusion that Davis is entitled to coverage under the Workers’ Compensation Act for the cost of medical treatment for that cardiac condition, therefore, was in error. The circuit court’s judgment is reversed, and this cause is remanded to the circuit court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

      . Davis also sought the aid of the circuit court in enforcing its previous judgment pursuant to which Wix had been made liable for the cost of medical treatments for Davis's back injury. We note that trial courts have the inherent authority to interpret, implement, and enforce their judgments. Helms v. Helms' Kennels, Inc., 646 So.2d 1343, 1347 (Ala.1994).

      . Also, both. Ex parte Brookwood Medical Ctr. and Ex parte Wal-Mart Stores relied on Ex parte Woodward Iron Co., 277 Ala. 133, 167 So.2d 702 (1964). Ex parte Woodward Iron Co., like Ex parte Brookwood Medical Center and Ex parte Wal-Mart Stores, also addressed an interlocutory trial-court order. Specifically, in Ex parte Woodward Iron Co., the issue was whether the trial court erred in allowing the substitution of one plaintiff for another. The controlling principle and the holding in Ex parte Woodward Iron Co. were stated as follows:
      " 'Where the motion to vacate the original decree is granted and a new trial is ordered, or the original cause is in any wise reinstated for further proceedings, the correct method of review is by mandamus.’ Here, the original cause was reinstated for further proceedings by the allowance of a new party plaintiff, so the correct method of review is by mandamus.”
      277 Ala. at 136, 167 So.2d at 704 (quoting Griffin v. Proctor, 244 Ala. 537, 541, 14 So.2d 116, 118 (1943)). In the present case, in contrast, the trial-court order at issue decided the merits of the only remaining, unresolved claim by the plaintiff.

      . In the circuit court, Davis also argued that the cumulative effect of job-related stress over the period from 1991 to September 20, 1996, caused or contributed to the heart condition for which he now seeks to recover medical benefits. The evidence does not support such a finding, at least not when measured against the applicable legal-causation standard. See, e.g., Safeco Ins. Cos. v. Blackmon, 851 So.2d 532, 537 (Ala.Civ.App.2002) (the employee must be exposed to "a risk materially in excess of that to which people not so employed are generally exposed” in their everyday lives).


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

text:
    SHELBY COUNTY TREATMENT CENTER et al. v. Alan EDMONDSON et al.
    2040205.
    Court of Civil Appeals of Alabama.
    Oct. 21, 2005.
    Rehearing Denied Dec. 30, 2005.

      G. Dennis Nabors and David E. Belser of Nabors Belser & DeBray, LLC, Montgomery, for appellants.
    Mickey L. Johnson, Pelham, for appel-lees.
   CRAWLEY, Presiding Judge.

Shelby County Treatment Center (“SCTC”), Susan Sidwell, Dr. Glen Archibald, and Frank Combs appeal from a judgment granting injunctive relief in favor of Alan Edmondson and 37 other individuals who allege that they are residents of Saginaw, Alabama. We reverse.

The record indicates that SCTC is a corporation whose officers and shareholders include Susan Sidwell, Dr. Glen Archibald, and Frank Combs. On October 21, 2003, SCTC filed an application with the State Health Planning and Development Agency (“SHPDA”) for a certificate of need (“CON”) to operate a methadone clinic in Shelby County. The application stated that the proposed location of the clinic was Calera, Alabama, an incorporated municipality within Shelby County.

Pursuant to Ala. Admin. Code (SHPDA) Rule 410-1-7-.08, SHPDA notified the public that SCTC had applied for a CON to operate a methadone clinic in Shelby County and that it proposed to operate the clinic in Calera. Between October 24, 2003, and January 21, 2004, SHPDA conducted a review of and held a public hearing on the application. No individual or entity filed a request to intervene in opposition to the application or to have the application assigned to an administrative law judge for a contested case hearing. See Ala. Admin. Code (SHPDA) Rule 410-1-8-.01 (establishing time limits for filing a contest of a CON application). On February 4, 2004, SHPDA granted SCTC’s CON application.

After the CON was granted, SCTC was unsuccessful in locating suitable rental property or a lot for sale in Calera upon which to build its clinic. However, SCTC found a building site in Saginaw, an unincorporated community 2.5 miles north of Calera in Shelby County. On May 24, 2004, SCTC filed a request for a modification of the CON to relocate in Saginaw; the request was granted the same day. A May 6, 2004, article in The Birmingham News had reported the proposed change in location.

On May 20, 2004, Robert E. Owens, the District Attorney for the 18th Judicial Circuit, purporting to represent the State of Alabama as well as Alan Edmondson and 37 other residents of Saginaw, filed in the Shelby Circuit Court a complaint for in-junctive relief, seeking to prevent the opening of the clinic in Saginaw or, in the alternative, to remand the cause to SHPDA for a public hearing on the propriety of locating the clinic in Saginaw. In their complaint, the plaintiffs asserted that they were denied their due-process rights to notice and a hearing because SCTC’s “misrepresentation” as to the location of the clinic prevented them from discovering the true location of the clinic until the time for contesting the CON application had expired.

On May 25, 2004, the trial court issued a temporary restraining order (“TRO”), requiring SCTC to cease and desist from all actions designed to further the opening of a methadone clinic in Saginaw and setting the matter for an evidentiary hearing on the plaintiffs’ motion for a preliminary injunction. In addition, the TRO determined

“that a public interest is affected by the matters alleged in plaintiffs’ complaint, and that the District Attorney for Shelby County is a proper representative for the named plaintiffs and for the citizens of the State of Alabama in protecting such public interest.”

On June 4, 2004, at a hearing on the motion for a preliminary injunction, Mickey Johnson, a lawyer in private practice, entered an appearance for the plaintiffs; the district attorney informed the trial court that Johnson was assisting him with the case. At the hearing on the motion for a preliminary injunction, the parties made legal arguments and submitted documentary evidence consisting of SCTC’s CON application and the SHPDA file on the application; no testimony was presented.

On June 14, 2004, the trial court entered a lengthy order granting a preliminary injunction. In summary, the court determined that (1) SCTC’s application for a CON to operate a methadone clinic in Cal-era “was done, proeedurally, according to the controlling laws and regulations governing such applications,” but that (2) SCTC had misrepresented its intent to locate the clinic in Calera, and that (3) SCTC’s “decision ... to locate [the clinic] in Saginaw, Alabama without first providing any form of public notice of such intent, deprive[d] the plaintiffs of their right to due process.” The court concluded that “any certificate of need, or amendment or modification thereto, issued in contravention of the due process rights acknowledged herein is void and [SCTC was] enjoined from acting thereon.”

After the hearing, but before the trial court ruled on the motion for a preliminary injunction, SCTC moved to dismiss the district attorney as the plaintiffs’ counsel or, in the alternative, to join SHPDA as a party. The trial court set the motions for a hearing on July 19, 2004. The- court denied both motions in open court at an August 9, 2004, hearing.

Testimony and documentary evidence were presented at hearings on August 9 and August 20, 2004. Although the plaintiffs presented legal arguments and cross-examined witnesses called by SCTC at both hearings, they called no witnesses and presented no evidence at either hearing.

On October 12, 2004, the trial court entered an order permanently enjoining SCTC from operating a methadone clinic in Saginaw. The order expressly adopted the findings of fact and conclusions of law in the May 25, 2004, order granting the TRO. The order issuing the permanent injunction states, in pertinent part:

“2. That all other remedies available to the plaintiffs by law have been circumvented as described herein, and that injunctive relief is the only adequate remedy remaining to the plaintiffs in this cause.
“4. Additional evidence has been presented on a hearing for permanent injunctive relief. On the issue of conformity to the rules and regulations of the [SHPDA], the Court finds:
“(a) That due process requires notice to the public sufficient to allow them to be heard [in] a meaningful manner. A [CON] application made to the [SHPDA] is subject to the provisions of § 41-22-12, Code of Alabama, and can be made a contested case, thus invoking a number of procedural safeguards afforded citizens in the administrative process. It is incumbent, in the first instance, that sufficient, truthful information be provided to state agencies for public access and dissemination in order for citizens to accurately assess the impact that administrative decisions may have upon them. The failure to provide accurate information in a public application prohibits an interested person from determining the extent of such impact, thus precluding informed decisions on the degree to which procedural and substantive safeguards can and should be employed.
“(b) That a misrepresentation regarding the planned location of the [clinic] in the [CON] application ... precluded plaintiffs from discovering those facts necessary to determine the degree by which they would be affected by any action taken on the application.
“(c) That this Court was not presented with, nor does it decide in this cause, the issue of whether the ‘policy’ of SHPDA to identify only the county of location in its public notices is sufficient to satisfy due process. In the instant case, even if the proposed specific location on the application were made a part of the public notice, the affected community would have been misinformed, and in no better position to exercise their rights than if no notice were given. Therefore, it is not necessary for the Court to determine the sufficiency of the SHPDA notice policy to satisfy due process.
“5. The Court heard further evidence on whether the misrepresentation of the proposed location in the application was intentional. It is also unnecessary for the Court to make a factual finding on this issue. Sufficient notice to satisfy due process does not turn on whether misinformation is innocent or willful. To hold otherwise would be to subject the existence of recognized, fundamental rights to vague and nebulous standards.”

On November 9, 2004, SCTC moved the trial court to supplement the record with a transcript of a CON Review Board (“CONRB”) meeting on October 20, 2004, at which the Board members discussed a suggested change to Ala. Admin. Code (SHPDA) Rule 410-1-10.03, that would require approval of the CONRB for any project modification involving “a physical relocation of the facility to a location other than that designated in the application or CON.” The trial court granted the motion to supplement.

Standard of Review

“The applicable standard of review depends on whether the trial court entered a preliminary injunction or a permanent injunction. A preliminary injunction is reviewed under an abuse-of-discretion standard, whereas a permanent injunction is reviewed de novo. Smith v. Madison County Comm’n, 658 So.2d 422, 423 n. 1 (Ala.1995).”

TFT, Inc. v. Warning Sys., Inc., 751 So.2d 1238, 1241 (Ala.1999).

In TFT, Inc., the Alabama Supreme Court held that, notwithstanding the trial court’s statement that it was issuing a preliminary injunction, the trial court had actually granted relief that had the effect of a permanent injunction because, the supreme court explained, the trial court had examined the merits of the case and had done more than preserve the status quo. In resolving the merits of the case, the trial court in TFT, Inc. had not been required to make credibility determinations about witnesses but had only to determine the legal effect of certain documentary evidence — an invitation to bid on a State contract and the bid responses. Compare City of Dothan v. Eighty-Four West, Inc., 871 So.2d 54, 60 (Ala.Civ.App. 2002)(on application for rehearing)(Mur-dock, J., concurring specially):

“The decisions of both the trial court and the Alabama Supreme Court in TFT turned on an objective review of certain documents and the application of governing law to those documents. It does not appear from the Supreme Court’s opinion in TFT, Inc., that ore tenus evidence was material (1) to the court’s interpretation of the documents or (2) to the court’s consideration of whether the threatened injury to the plaintiff outweighed the harm that the requested injunction may cause the defendant or whether granting the injunction would disserve the public interest.... Citing Smith v. Madison County Commission, 658 So.2d 422, 423 n. 1 (Ala.1995), the Supreme Court in TFT, Inc., therefore, applied a de novo standard of review. ...
“At issue in Smith was a pure question of law. As the Supreme Court noted, the appeal presented !a single issue: Whether the Madison County Commission’s statutory authority to enforce its building code ended through application of Alabama’s “Sunset Act.” ’ 658 So.2d at 423 (footnote omitted). Where the sole issue presented is a question of law, an appellate court’s review is, indeed, de novo.”

In the present case, as in TFT, Inc., the issue upon which the injunction was granted is a question of law: whether the plaintiffs were denied due process as a consequence of SCTC’s requesting and receiving approval from SHPDA for a CON modification to relocate a methadone clinic in Saginaw without first giving the residents of Saginaw specific notice of the proposed relocation and an opportunity to be heard on the matter. Appellate review of the permanent injunction is, therefore, de novo. See TFT, Inc., supra; City of Dothan v. Eighty-Four West, Inc., supra.

The following questions of law and fact are undisputed. Section 22-21-260(7), Ala. Code 1975, defines a “health service area” as “[a] geographical area designated by the Governor, as being appropriate for effective planning and development of health services.” Rule 410-1-2-.03, Ala. Admin. Code (SHPDA), states:

“[Health service] areas may vary according to the types of individual health services. In the absence of a designated geographical area for a particular service, the county in which the service is to be provided shall be deemed to be the health service area.”

The State Health Plan does not designate a geographical area for methadone treatment. See Rule 410-2-4-.ll(4), Ala. Admin. Code (SHPDA). For a methadone clinic, therefore, the county is the health-service area. Calera and Saginaw are both in Shelby County. During the application-review process, SHPDA had provided the public notice called for by Rule 410-1-7-.08, Ala. Admin. Code (SHPDA). SHPDA had no regulation requiring that any further notice be given to the residents of Saginaw when SCTC sought a modification of the CON to change the location of the clinic from Calera to Saginaw. SCTC’s request for a modification was not required to be approved by the CONRB. Because the modification request fell below the financial threshold that would have triggered a review by the CONRB pursuant to Ala. Admin. Code (SHPDA) Rule 410-1-10-.03, the executive director of SHPDA was authorized to grant the modification request; he granted the request on the day it was made.

Misrepresentation

The trial court’s order issuing the injunction was predicated on the following determinations: (1) that SCTC had misrepresented, in its CON application, the intent to locate in Calera; (2) that the plaintiffs had relied on that misrepresentation, that they had been led to believe that the clinic would not be located in Saginaw, and that they had taken no action to contest the CON; and (3) that the plaintiffs had been injured because SCTC obtained a project modification allowing it to locate the clinic in Saginaw without notice to or comment from the residents of Saginaw.

The record does not support the trial court’s determinations with respect to misrepresentation, reliance, or the causation of the plaintiffs’ alleged injury. On the issue of misrepresentation, the evidence was uncontroverted that, when it filed the CON application, SCTC intended to locate in Calera, had researched the Calera real-estate market, and had sought a rental facility or a building lot for sale in Calera. SCTC Executive Director Susan Sidwell testified that, when SCTC was having trouble finding a suitable site in Calera, she contacted SHPDA and was informed that the CON authorized SCTC to locate anywhere in Shelby County, after which she located a site for the clinic in Saginaw. There was no evidence in the record from which the trial court could have found that SCTC “misrepresented” the planned location of the clinic.

With respect to the plaintiffs’ alleged reliance on SCTC’s CON application designating Calera as the location of the clinic, the plaintiffs offered no testimony that they had even been aware of SCTC’s CON application listing Calera as the proposed site for the clinic, much less that they had relied on that representation in deciding not to oppose the CON application.

On the issue of the cause of the plaintiffs’ alleged injury, the parties stipulated that

“the citizens of Saginaw could not have determined that this facility was going to be located in Saginaw, Alabama, by looking at [the SHPDA file concerning SCTC’s CON application] until after the modification was obtained.”

SCTC presented uncontradicted evidence, however, indicating that any citizen concerned about the opening of a methadone clinic in Shelby County could have contacted SHPDA and learned that the CON was granted for the county at large, that the clinic could request a project modification to locate somewhere in the county other than Calera, and that such requests were routinely granted by SHPDA. Cf. Save Our Dunes v. Alabama Dep’t of Envt’l Mgmt., 834 F.2d 984, 989-90 (11th Cir.l987)(holding that environmental groups had no due-process right to specific notice of decisions on coastal building-permit applications — as opposed to notice of the existence of pending applications that was provided to the public generally — because “persons who inquire as to the status of particular applications can be informed,” and concluding that “[o]nce Alabama gives good notice of a building permit application, Alabama can properly require persons concerned about a building application ... to initiate reasonable steps to keep themselves informed as to the status of the proceedings about which they are curious”). The record contains no evidence to support the trial court’s finding that “a misrepresentation regarding the planned location of the [clinic] in the [CON] application ... precluded plaintiffs from discovering those facts necessary to determine the degree by which they would be affected by any action taken on the application.” (Emphasis added.)

Although the issue was not raised by SCTC, the plaintiffs’ “misrepresentation” theory alleging a deprivation of their due-process rights is fundamentally flawed because it attempts to exonerate SHPDA, a state agency, and to assign responsibility for the alleged due-process violation to SCTC, a private actor. Likewise, the trial court’s judgment expressly states that the court did not decide whether SHPDA’s rules and regulations were “sufficient to satisfy due process” guarantees. Instead, the trial court determined that SCTC’s conduct precluded the plaintiffs from being heard on the issue of locating a methadone clinic in Saginaw until the time for objection under SHPDA’s rules had expired.

“The Due Process Clause provides that ‘[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.’ U.S. Const, amend. XIV, § 1. In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the Supreme Court held:
“ ‘[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, or property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act....
“DeShaney, 489 U.S. at 195-97, 109 S.Ct. at 1003.”

Wright v. Bailey, 611 So.2d 300, 304 (Ala.1992) (emphasis added). The due-process violation alleged by the plaintiffs and made the basis of the trial court’s judgment was not attributable, as a matter of law or fact, to the actions of SCTC. Any deprivation of due process suffered by the plaintiffs could only be ascribed to SHPDA, the state agency whose regulations allowed its executive director to approve a CON modification request for the relocation of a proposed facility to a place other than that designated in the original CON application without specific notice to the residents of that place. Therefore, the trial court erred by denying SCTC’s motion to join SHPDA as a party under Rule 19(a), Ala. R. Civ. P. That rule states, in pertinent part:

“A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties.... ”

Although SCTC raised the joinder issue in the trial court, it did not argue the joinder issue on appeal. Nevertheless,

“ ‘[fjailure of the plaintiff or the trial court to add a necessary and indispensable party, and of the defendant to raise the absence of such party in his or her pleadings, does not necessarily dispose of the issue. This defect can be raised for the first time on appeal by the parties or by the appellate court ex mero motu.’
“J. C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850 (Ala.1981).”

Chicago Title Ins. Co. v. American Guar. & Liab. Ins. Co., 892 So.2d 369, 371 (Ala.2004) (emphasis added).

“A permanent injunction will be granted when there exists a clear, specific, legal right requiring protection and the injunction is necessary to prevent irreparable injury and there is no adequate remedy at law.” Gulf House Ass’n, Inc. v. Town of Gulf Shores, 484 So.2d 1061, 1064 (Ala.1985). The plaintiffs failed to establish that SCTC denied them due process of law.

“To be entitled to a permanent injunction, a plaintiff must demonstrate success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to the plaintiff outweighs the harm the injunction may cause the defendant, and that granting the injunction will not dis-serve the public interest. Clark Constr. Co. v. Pena, 930 F.Supp. 1470 (M.D.Ala. 1996). The elements required for a preliminary injunction and the elements required for a permanent injunction are substantially similar, except that the movant must prevail on the merits in order to obtain a permanent injunction, while the movant need only show a likelihood of success on the merits in order to obtain a preliminary injunction. Pryor v. Reno, 998 F.Supp. 1317 (M.D.Ala.1998).”

TFT, Inc. v. Warning Systems, Inc., 751 So.2d at 1242. The trial court erred in issuing the injunction because the plaintiffs did not demonstrate success on the merits of their due-process claim.

Representation by the District Attorney

SCTC argues that the trial court erred by denying its motion to remove the district attorney as counsel for the plaintiffs. Section 12-17-184, Ala.Code 1975, states the powers and duties of district attorneys. Subsection (3) of § 12-17-184 provides that it is the duty of the district attorney, within the circuit for which he or she is elected or appointed, “[t]o prosecute and defend any civil action in the circuit court in the prosecution or defense of which the state is interested.” (Emphasis added.) Subsection (11) of § 12-17-184 provides:

“All district attorneys and all full-time assistant district attorneys shall devote their entire time to the discharge of the duties of their respective offices, and each and every one of the officers are prohibited from practicing law, directly or indirectly, in any court of this state or of the United States, or in any other manner or form whatsoever, except in the discharge of the official duties of their offices.”

Notwithstanding the fact that the complaint for injunctive relief was nominally prosecuted in the name of the State of Alabama (as well as the 88 named plaintiffs alleging that they were resident citizens of Saginaw), it is apparent that the State of Alabama was not interested in the prosecution of this civil action, as the term “interested” is used in § 12-17-184(8). All of the cases in the annotations to that statute dealt with civil actions in which the State of Alabama was a party to a civil action. Because the State was not “interested” as a plaintiff in this civil action, the District Attorney had no authority to represent the plaintiffs. See Aldridge v. Capps, 56 Okla. 678, 156 P. 624 (1916).

In Aldridge, the court construed a provision of the Oklahoma Code that prohibited a district attorney from engaging in the private practice of law except in the official discharge of his duties. Cf. Simpson v. Alabama State Bar, 294 Ala. 52, 55, 311 So.2d 307, 309 (1975)(stating that “[t]he [Alabama] Code prohibits a district attorney from practicing law except in the discharge of his duties”). The Aldridge court held that when a prosecuting attorney practices law in violation of the statute and over the objection of his adversary, he is in the same position “as though he had never been admitted to practice law” and if he recovers a judgment, the case will be reversed on appeal. 56 Okla. at 680, 156 P. at 625.

Because a private attorney assisted with the instant case in the trial court and filed the appellees’ brief on appeal to this court, and because we are reversing the judgment on other grounds, we pretermit discussion of the result that might obtain under different circumstances.

The judgment of the Shelby Circuit Court is reversed, and the injunction is dissolved.

REVERSED.

BRYAN, J., concurs in the rationale in part and concurs in the result, with writing, which PITTMAN, J., joins.

THOMPSON, J., concurs in the result only, with writing.

MURDOCK, J., dissents, without writing.

BRYAN, Judge,

concurring in the rationale in part and concurring in the result.

I concur in the rationale of the main opinion dealing with the “Standard of Review” and “Misrepresentation” issues. I concur in the result with regard to that portion of the opinion entitled “Representation by the District Attorney.”

PITTMAN, J., concurs.

THOMPSON, Judge,

concurring in the result only.

This case raises issues, especially concerning policy and the adequacy of SHPDA’s regulations, that cause me great concern. However, those issues were not properly presented to the trial court or adequately argued on appeal. Therefore, I am constrained to concur in the result only in this matter.

      . “Methadone is an opioid agonist medication used to treat heroin and other opiate addiction. Methadone reduces the craving for heroin and other opiates by blocking receptor sites that are affected by heroin and other opiates.” Ala. Admin. Code (SHPDA) Rule 410-2-4-.1 l(4)(a).

      . SHPDA sent press releases to three television stations and three newspapers serving Shelby County: WTVM-Channel 13 (NBC); WIAT-Channel 42 (CBS); WBRC-Channel 6 (Fox); The Birmingham News; The Birmingham Post-Herald; and The Shelby County Reporter. SHPDA also notified area health-care facilities and agencies as well as the mayor of Calera, a member of the Calera City Council, and a member of the Alabama House of Representatives from Shelby County. SHPDA received letters of opposition from the Shelby County Commission, the Pelham Police Chief, the Shelby County Sheriff, the Shelby County District Attorney, and the Shelby County Chiefs of Police Association.

      . Among the materials submitted with SCTC’s application were over 100 statements or letters in support of the application. The evidence was undisputed that with respect to nine pre-printed letters signed by citizens of Shelby County and expressing support of the application, the citizens had been misled about what they were signing and that one signature was, in fact, forged. The parties stipulated that SCTC neither solicited nor knowingly submitted the false or forged letters. This evidence and the stipulation concerning it do not support the finding that SCTC "misrepresented” its intent to locate in Calera.


author: SEE, Justice. NABERS, Chief Justice

text:
    Ex parte Alan EDMONDSON et al. (In re Shelby County Treatment Center et al. v. Alan Edmondson et al.).
    1050487.
    Supreme Court of Alabama.
    June 9, 2006.
    Mickey L. Johnson, Pelham, for petitioners.
    David E. Belser and G. Dennis Nabors of Nabors, Belser & DeBray, LLC, Montgomery, for respondent.
   SEE, Justice.

WRIT DENIED. NO OPINION.

LYONS, HARWOOD, WOODALL, and PARKER, JJ., concur.

NABERS, C.J., and STUART and BOLIN, JJ., concur specially.

NABERS, Chief Justice

(concurring specially).

I concur to deny the petition for the writ of certiorari. I write specially, however, because I find this case troubling.

Unfortunately, the State Health Planning and Development Agency (“SHPDA”), the state agency responsible for administering the process through which the Shelby County Treatment Center (“SCTC”), one of the plaintiffs below, obtained approval for locating its methadone clinic in Saginaw, is not a party to this action. Therefore, while I am concerned that the petitioners, residents of Saginaw, have been misled about the potential location of the proposed methadone clinic, our hands are tied.

In their petition for a writ of certiorari, the petitioners present only one issue: they contend that their due-process rights have been violated. The petitioners do not assert their due-process claim against SHPDA, however. Instead, they assert the claim against SCTC — a private actor not subject to liability for an alleged due-process violation. See Wright v. Bailey, 611 So.2d 300, 304 (Aa.1992). Therefore, although the petitioners may have a viable due-process claim, they failed to bring that claim against the proper party.

In my view, the most disturbing aspect of this case is SHPDA’s apparent failure to fulfill its responsibility under Rule 410-1-7-.08, Aa. Admin. Code (Health Planning). Under that rule, SHPDA has the responsibility of accurately notifying persons affected by a proposed health facility or service of the location of the proposed facility or service. Here, the residents of Saginaw were not adequately notified about the potential location of SCTC’s methadone clinic in their town. Although the notice provided by SHPDA stated that the proposed clinic was to be located in Shelby County, the notice narrowed the potential location of the clinic to the Town of Calera. The clinic was not ultimately located in Calera, however, and the residents of Saginaw were not given the opportunity to voice their concerns about the clinic before SHPDA approved SCTC’s request to locate the facility in Saginaw. Sufficient notice under Rule 410-1-7-.08, if it means anything at all, must encompass accurate information about the location of the proposed health facility or service.

However, because no claim or argument relating to alleged insufficient notice under Rule 410-1-7-.08 is before us, I must concur to deny the writ.

STUART and BOLIN, JJ., concur.


author: THOMPSON, Judge.

text:
    BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY v. COASTAL BUILDERS, INC.
    2040560.
    Court of Civil Appeals of Alabama.
    Dec. 16, 2005.
    Rehearing Denied June 23, 2006.

      Robert C. Campbell III and Barry C. Prine of Campbell, Duke & Prine, Mobile, for appellant.
    W.A. Kimbrough, Jr., and Marc E. Bradley of Turner, Onderdonk, Kimbrough & Howell, P.A., Mobile, for appellee.
   THOMPSON, Judge.

Coastal Builders, Inc. (“Coastal”), sued the Board of School Commissioners of Mobile County (“the Board”), seeking to recover $38,329 in damages. Coastal claimed that it had entered into a contract with the Board for the construction of an elementary school, that in computing its bid for that contract it had inadvertently omitted the cost of a “control package,” and that the Board had promised to pay for the control package or add the cost of the control package to Coastal’s contract. The Board answered and denied liability. The Board filed a motion for a summary judgment, and the trial court denied that motion. Later, the Board again moved for a summary judgment.

On January 18, 2005, the parties appeared before the trial court for the scheduled trial in this matter. At the beginning of that proceeding, the trial court denied the Board’s second motion for a summary judgment, and it asked counsel for Coastal why Coastal had not moved for a summary judgment. The trial court then announced its intention to enter a judgment in favor of Coastal without taking evidence in the matter.

On February 16, 2005, the trial court entered a judgment in favor of Coastal. In that judgment, the trial court stated that,

“after having fully considered all matters in the Court file, including the two (2) motions for Summary Judgment filed by the Board and all attachments thereto filed by both the Board and Coastal Builders, [the court] deems that further testimony and evidence would not add to the Court’s understanding of the facts and issues in this matter ....”

The Board appeals.

Initially, we note that the Board first argues that the trial court erred in refusing to allow it to present evidence at the January 18, 2005, hearing. We conclude, however, that the Board’s failure to object to the trial court’s decision to enter a judgment without taking evidence precludes it from now raising that issue on appeal.

In Green v. Dixon, 727 So.2d 781 (Ala.1998), our supreme court held that a trial court could enter a summary judgment in favor of a party even though the motion for a summary judgment had been filed by the opposing party. The court explained:

“ ‘Even though it would be better practice for an opposing party to file a cross motion, ... we hold that in the absence of a timely and meritorious objection, there is no reason why, upon the motion of one of the parties, the court cannot dispose of the whole matter by granting a judgment to the other party if it finds that there is not [substantial evidence] supporting the moving party’s position, thus showing the non-moving party to be entitled to a judgment as a matter of law.’ ”

Green v. Dixon, 727 So.2d at 783 (quoting Adam v. Shelby County Comm’n, 415 So.2d 1066, 1068 (Ala.1982)).

The trial court’s February 16, 2005, judgment was, in essence, a summary judgment, or a judgment as a matter of law, in favor of Coastal. The trial court announced at the beginning of the January 18, 2005, hearing that Coastal was entitled to a judgment as a matter of law. The Board did not object to the trial court’s failure to conduct an ore tenus proceeding. Wright v. State Dep’t of Indus. Relations, 470 So.2d 1246, 1248 (Ala.Civ.App.1985) (“In order to preserve a matter for appeal or cross-appeal, a party must call the matter to the attention of the trial court by way of objection or other appropriate methods.”). Therefore, we reach the arguments pertaining to the merits of this appeal. See Green v. Dixon, supra.

A brief recitation of the facts is all that is necessary for the disposition of this appeal. The record indicates that Coastal submitted a bid to construct a school for the Board and that, on June 27, 2001, the Board awarded the contract to construct the school to Coastal. On June 29, 2001, the parties met for a “preconstruction meeting.” At the preconstruction meeting, Coastal alerted the Board to the fact that it had failed to include in its bid the $38,329 cost of the control package that was required under the contract. It is undisputed that that error was discussed at the meeting and that the parties discussed either adding the cost of the package to Coastal’s bid, executing a “change order” to alter the bid, or having the Board make a direct payment to the supplier of the control package. It is undisputed that John Case, the owner of Coastal, and four of his subcontractors left the preconstruction meeting with the understanding that the problem would be remedied.

In early July 2001, Coastal signed the contract that had been submitted to it by the Board on June 27, 2001. The Board executed that contract in late July 2001. In late September 2001, the Board notified Coastal that it would not cover the cost of the control package.

The Board argues that the trial court erred in entering a judgment in favor of Coastal. The Board argues that the trial court erred in concluding that the Board and Coastal had reached an agreement with regard to the control package because, it contends, such an agreement would violate the Competitive Bid Law, §§ 41-16-50 through -62, Ala.Code 1975. The Competitive Bid Law “requires that a contract [involving $7,500 or more] that provides for the expenditure of county or municipal funds ‘shall be made under contractual agreement entered into by free and open competitive bidding, on sealed bids, to the lowest responsible bidder.’ § 41-16-50(a), Ala.Code 1975.” Ex parte Ballew, 771 So.2d 1040, 1043 (Ala.2000).

The Board relies on Ex parte Ballew, supra, in making its argument on this issue. In that case, our supreme court held that the doctrine of estoppel could not be used by a party who has a contract dispute with an entity subject to the Competitive Bid Law “to preclude the defense of noncompliance with the Competitive Bid Law.” Ex parte Ballew, 771 So.2d at 1042.

The Board argues that any agreement it purported to make with regard to paying for the control package would have been subject to the Competitive Bid Law and, therefore, that such an agreement would be void and unenforceable. The evidence indicates that the Board agreed to allow Coastal to remedy its bid to encompass the cost of the control package. However, the parties failed to modify the contract awarded to Coastal, and the amount at issue was sufficient to trigger the application of the Competitive Bid Law. See § 41-16-50(a), Ala.Code 1975 (specifying that the Competitive Bid Law applies to all expenditures of $7,500 or more).

“[T]he legislative intent in passing the Competitive Bid Law was to get the best quality equipment at the lowest possible price, and the executive authorities should carry out this intent of the legislature.” Arrington v. Associated General Contractors of America, 403 So.2d 893, 898-99 (1981) (quoting White v. McDonald Ford Tractor Co., 287 Ala. 77, 86, 248 So.2d 121, 129 (1971)). “Alabama’s competitive bid provisions are designed for the public’s benefit, and not for the benefit of those vying for public funds.” Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141, 1151 (Ala.1995) (Houston, J., dissenting). Even so, the courts “ ‘do not condone the use of the Competitive Bid Law as a means for a party to escape liability for a contract it voluntarily entered into.’ ” Ex parte Ballew, 771 So.2d at 1042 (quoting Layman’s Sec. Co. v. Water Works & Sewer Bd. of the City of Prichard, 547 So.2d 533, 536 (Ala.1989)). However, this court is bound to apply the Competitive Bid Law and the precedents of our supreme court. See § 12-3-16, Ala. Code 1975; Ex parte Ballew, supra; see also Maintenance, Inc. v. Houston County, 438 So.2d 741, 744 (Ala.1983) (“[T]he legislature has expressed its public policy of voiding contracts which do not comply with the competitive bid law.”). Therefore, we must conclude that any agreement by the Board to pay for the control package is void for its failure to comply with the Competitive Bid Law. Ex parte Ballew, supra. Accordingly, we must reverse the trial court’s judgment in favor of Coastal.

REVERSED AND REMANDED.

PITTMAN, J., concurs.

CRAWLEY, P.J., and MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . In its brief, the Board maintains that the trial court erred in denying its motion for a summary judgment. However, the denial of a motion for a summary judgment is not ap-pealable. Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994); and Blanton v. Liberty Nat’l Life Ins. Co., 434 So.2d 773, 776 (Ala.1983). We interpret the Board’s argument as contesting the propriety of the trial court's judgment in favor of Coastal.