text:
    BESSEMER WATER SERVICE, a department of the City of Bessemer v. LAKE CYRUS DEVELOPMENT COMPANY, INC.
    1040956.
    Supreme Court of Alabama.
    Dec. 8, 2006.

      Frank G. Alfano and Denise Blue Poe of Vines & Waldrep, LLC, Bessemer, for appellant.

      V. Edward Freeman II of Stone, Patton, Kierce & Freeman, Bessemer, for appel-lee.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Olivia W. Martin, asst. atty. gen., for amicus curiae State of Alabama, in support of the appellant.
   NABERS, Chief Justice.

The Bessemer Water Service (“BWS”), a department of the City of Bessemer, appeals from the trial court’s order enforcing a contract entered into by the mayor of the City of Bessemer on BWS’s behalf with the Lake Cyrus Development Company, Inc. (“LCDC”). The contract, BWS alleges, violated § 39-2-2, Ala.Code 1975, which requires all contracts for public-works projects to be advertised and bid upon. BWS also alleges that the mayor of Bessemer, who executed the contract on behalf of BWS, lacked the authority to bind BWS to the contract. We reverse and remand.

I.

In 1997 John C. Rockett, Jr., a BWS ratepayer, and other BWS ratepayers sued BWS and other parties, alleging that BWS had misused public funds and had thereby harmed the ratepayers by inflating the amounts they were charged for their water consumption. The trial court initially certified the case as a class action; however, this Court directed that the order certifying the class be vacated. Ex parte Water Works & Sewer Bd. of Birmingham, 738 So.2d 783 (Ala.1998). Thereafter, the case was delayed for several years for a variety of reasons; it eventually evolved into what the trial court described as “a declaratory-judgment action against [BWS] concerning its pricing policies and the manner in which it distributes its revenue.”

On May 19, 2004, the trial court entered an order holding that BWS had likely been violating the law in regard to its practice of .transferring substantial funds each year to the general fund of the City of Bessemer “without any legal or industry standard being utilized to determine whether the rates being charged or funds transferred were reasonable.” The trial court stated that BWS’s practice of transferring funds without using any standard conflicts with the legal requirement that utility customers be charged a reasonable and nondiscriminatory rate. See Water Works Bd. of Parrish v. White, 281 Ala. 357, 361, 202 So.2d 721, 724 (1967) (“The law will not and cannot tolerate discrimination in the charges of a water works company. There must be equality of rights and special privileges to none; and, if this is violated or unreasonable rates are charged, the humblest citizen has the right to invoke the protections of the laws equally with another.”).

The trial court noted that BWS’s practice of transferring funds to the general fund of the City of Bessemer was particularly suspect inasmuch as BWS also provided water to, and received income from, customers in Hueytown, Midfield, Brighton, Hoover, and Lipscomb. The ratepayers in those cities did not receive services from the City of Bessemer but were, in effect, subsidizing its general fund.

Accordingly, the trial court, in its May 19, 2004, order, enjoined BWS from transferring any further sums to the general fund of the City of Bessemer except for certain approved expenses and reimbursements, until BWS completed a water-rate study that would allow it to implement a rate structure that provided a reasonable and legal rate of return to the City of Bessemer for operating BWS, in line with accepted industry standards. The trial court further stated that it would retain jurisdiction over the case until such a rate structure was implemented and that it would “always be open to [the parties] in the event it is found that any associated entity, through action or inaction, in any way impedes or hampers [BWS] in the implementation of the requirements of this order.”

On December 6, 2004, BWS and Rock-ett, the only remaining plaintiff in the case, jointly moved the trial court to add LCDC to the action as a necessary party pursuant to Rule 19(a), Ala. R. Civ. P. BWS and Rockett alleged that LCDC was hampering BWS’s ability to comply with the trial court’s May 19, 2004, order inasmuch as LCDC was refusing to renegotiate an allegedly invalid contract it had entered into with BWS in 1998 (“the 1998 water agreement”). The trial court granted the motion and added LCDC as a necessary party in the case. That same day, BWS filed a cross-claim for declaratory relief, asking the trial court to relieve it of the allegedly invalid provisions in the 1998 water agreement and to determine whether LCDC was obligated to return to BWS any of the funds it had previously received from BWS under the 1998 water agreement.

The 1998 water agreement was entered into on April 30, 1998. The contract was signed by the then mayor of Bessemer, Quitman Mitchell, who by statute also served as the manager of Bessemer Utilities, and by Charles Givianpour, the president of LCDC. It was the product of two months of negotiations that began when Mayor Mitchell and Charles Nivens, operations manager for Bessemer Utilities, approached Givianpour and asked him to use BWS, instead of Birmingham Water Works, as the provider of water to the new Lake Cyrus residential development in Hoover. BWS was interested in providing water to Lake Cyrus not only to increase its customer base, but also to further its reach. Toward that end, BWS expressly negotiated for LCDC to increase the size of the main water line within the development (running from Highway 150 to Parkwood Road) from a 12-inch line to a 16-inch line to allow for future expansion.

The 1998 water agreement obligated BWS

“to provide potable water to all residential, industrial and commercial areas within the [Lake Cyrus] development at the same rates and upon the same terms and conditions (as modified by the terms and provisions of this agreement) as BWS provides water service to all other residential, industrial and commercial customers, respectively, of BWS.”

(Emphasis added.) The terms and provisions of the 1998 water agreement had been modified; they were not the terms and provisions of the typical BWS water-services contract. Nivens and Terry Hinton, water-distribution superintendent at BWS, testified that it was BWS’s standard procedure to fund the cost of a water-main extension for a residential development to the point of the entrance to the development and that the developer customarily paid all costs associated with bringing water from that point into the development, including the construction of the interior main extension, the submain, and the lateral lines. However, under the 1998 water agreement, BWS agreed to pay LCDC $273,000 as “a partial deferment” of the costs LCDC incurred in installing the interior 16-inch main extension, the submains, and the associated water valves. Moreover, BWS agreed to reimburse LCDC on a monthly basis for all costs and expenses LCDC incurred in installing the lateral water lines within the development.

It was also standard BWS practice to charge a “tap fee” to each new customer that requested water service. The tap fee was used to offset the cost of extending the water main to the entrance of a new development and the cost of maintaining the water lines in the development after the lines were installed and tendered by the developer for BWS’s acceptance. However, the 1998 water agreement required BWS to remit to LCDC, on a monthly basis, 100% of the tap fees collected in the development.

Aside from the provisions mandating a $273,000 payment to LCDC, the reimbursement of LCDC’s lateral-line construction costs, and the transmittal to LCDC of 100% of the collected tap fees, BWS also identified the following requirements in the 1998 water agreement as deviating from the terms and conditions of its standard water-services contract: 1) BWS was to provide and install all fire hydrants; 2) LCDC was to retain an option to repurchase all of the waterworks in the development after they were tendered to BWS; 3) BWS was required to keep the contents of the 1998 water agreement confidential; and 4) all late payments by BWS accrued interest at the rate of 18%.

In 2002, Edward May was elected mayor of Bessemer. May replaced Mayor Mitchell and began his term on October 7, 2002. Mayor May initially continued to sign the reimbursement checks being sent to LCDC under the 1998 water agreement. However, in approximately May 2004, after reviewing a copy of the contract, May- or May began to doubt the legality of the 1998 water agreement. After consulting with the City’s attorney, Mayor May sent LCDC a letter, dated August 9, 2004, informing it of the City’s position that the 1998 water agreement was void, and requesting that legal counsel for the City and for LCDC meet and discuss the options.

The relationship between LCDC and BWS rapidly disintegrated. Because BWS would not pay LCDC $202,990 in reimbursements LCDC was claiming under the 1998 water agreement for finishing the interior. 16-inch water-main extension through the back of the subdivision to complete the connection with the main BWS line at Parkwood Road, LCDC refused to complete the work. BWS was anxious to have the extension completed because the connection at Parkwood Road would “loop” the system. In response, BWS delayed approving water lines. connecting the remaining sector of the Lake Cyrus development, causing delays in residential construction.

On December 6, 2004, BWS filed its cross-claim seeking, among other relief, relief from the allegedly invalid provisions in the 1998 water agreement that required it: 1) to remit to LCDC $71,540, the outstanding balance of the $273,000 partial-deferment payment; 2) to further reimburse LCDC for costs and expenses associated with constructing lateral lines; 3) to turn over to LCDC 100% of the tap fees that were collected in the development; 4) to sell LCDC all the water lines in the development if LCDC elected to exercise the purchase option; and 5) to keep the terms of the 1998 water agreement confidential. BWS also asked the trial court to enforce the valid portions of the 1998 water agreement so as to allow BWS to continue to provide water to the Lake Cyrus development. Finally, BWS asked the trial court to determine if it could recover any of the funds previously paid to LCDC under the 1998 water agreement and to declare that BWS was the owner of all of the waterworks within the Lake Cyrus development that had previously been tendered by LCDC and accepted by BWS.

LCDC thereafter filed a “motion for emergency expedited and injunctive relief,” asking the trial court to order BWS to supply water to the final sector of the Lake Cyrus development as promised and to pay LCDC the money LCDC was claim - ing under the 1998 water agreement. LCDC further asked the court to enjoin BWS from future breaches of the contract.

The trial court held a bench trial on all pending matters in the case from February 28, 2005, through March 3, 2005. On March 7, 2005, the trial court entered an order finding the entire 1998 water agreement to be valid and entering a judgment in favor of LCDC. On March 8, 2005, the trial court entered an amended order, ordering BWS to pay LCDC $224, 979. 83 in damages. BWS appeals.

II.

“[W]hen evidence is presented ore tenus in a nonjury case, a judgment based on that ore tenus evidence will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong or against the great weight of the evidence. Eagerton v. Second Econ. Dev. Coop. Dist. of Lowndes County, 909 So.2d 783, 788 (Ala.2004). Nevertheless, this rule is not applicable where the evidence is undisputed or where the material facts are established by undisputed evidence. Salter v. Hamiter, 887 So.2d 230, 233-34 (Ala.2004). Additionally, when the trial court ‘improperly applies the law to the facts, the presumption of correctness otherwise applicable to the trial court’s judgment has no effect.’ Ex parte Bd. of Zoning Adjustment of Mobile, 636 So.2d 415, 418 (Ala.1994).”

Hartford Cas. Ins. Co. v. Merchants & Farmers Bank, 928 So.2d 1006, 1009 (Ala.2005). In the present case, the evidence was presented to the trial court ore tenus. However, because the material facts are undisputed, the trial court’s decision is entitled to no presumption of correctness and this Court will review it de novo.

III.

BWS argues that the trial court erred in holding the 1998 water agreement valid for two reasons. First, BWS argues that, because the 1998 water agreement obligated BWS to at least partially fund the construction of the water lines inside Lake Cyrus, that construction was a public-works project pursuant to § 39-2-1(5), Ala.Code 1975, and BWS’s payments to LCDC to complete the construction therefore violated § 39-2-2, Ala.Code 1975, which requires that all public-works projects be advertised and bid upon.

Second, BWS argues that Mayor Mitchell had no authority to enter into the 1998 water agreement because § 11-43-56, Ala.Code 1975, vests sole management and control of city finances in the Bessemer city council. BWS argues that Mayor Mitchell, in his capacity as the manager of Bessemer Utilities, had only the limited authority to enter into “standard” water-service contracts. BWS argues that any contracts that significantly departed from the terms of the standard contract, as the 1998 water agreement unquestionably did, would have to be approved by the city council to be valid.

We first consider BWS’s argument that the 1998 water agreement violates the mandatory bidding and advertising provisions of § 39-2-2. Section 39-2-2 provides, in pertinent part:

“(a) Before entering into any contract for public works involving an amount in excess of fifty thousand dollars ($50,000), the awarding authority shall advertise for sealed bids....
“(b) An awarding authority may let contracts for public works involving fifty thousand dollars ($50,000) or less with or without advertising or sealed bids.
“(c) All contracts for public works entered into in violation of this title shall be null, void, and violative of public policy. ...”

In § 39-5-6, Ala.Code 1975, and § 39-5-1(a), Ala.Code 1975, the legislature evinced its intent that entities strictly comply with § 39-2-2. Section 39-5-6 states:

“The provisions of this title are mandatory, and shall be construed to require strict competitive bidding on contracts for public works. The courts shall not invoke or apply any principle of quantum meruit, estoppel, or any other legal or equitable principle which would allow recovery for work and labor done or materials furnished under any contract let in violation of competitive bidding requirements as prescribed by law.”

Section 39-5-1 (a) states:

“No civil action shall be brought or maintained by a contractor in any court in this state to require any awarding authority to pay out public funds for work and labor done, for materials supplied, or on any account connected with performance of a contract for public works, if the contract was let or executed in violation of or contrary to this title or any provision of law.”

The purpose of these statutes is plain. Competitive bidding by sealed bids guards against opportunities for corruption in the procurement of contracts for public-works projects. These statutes make it clear that the legislature intended to erect impregnable barriers to prevent the misuse of public funds inherent in awarding public-works contracts covered by § 39-2-2 without competitive bidding.

In order to determine whether the 1998 water agreement was entered into in violation of § 39-2-2, we must determine: 1) whether the 1998 water agreement is, in fact, a contract for public works; 2) whether the amount involved exceeds $50,000; and 3) whether the awarding authority advertised for sealed bids. The latter two determinations are easily made because the 1998 water agreement on its face required an initial payment from BWS to LCDC of $273,000, and it is undisputed that there were no advertisements seeking sealed bids for the project. Thus, the relevant inquiry is whether the 1998 water agreement constitutes a contract for public works.

Section 39-2-1(5) defines “public works” as:

“The construction, repair, renovation, or maintenance of public buildings, structures, sewers, waterworks, roads, bridges, docks, underpasses, and viaducts as well as any other improvement to be constructed, repaired, renovated, or maintained on public property and to be paid, in whole or in part, with public funds.... ”

(Emphasis added.) Section 39-2-1(4) defines “public property,” as that term is used in § 39-2-1(5), as “[r]eal property which the state, county, municipality, or awarding authority thereof owns or has a contractual right to own or purchase, including easements, rights-of-way, or otherwise.” (Emphasis added.) The 1998 water agreement granted BWS “all permanent, non-exclusive easements necessary for BWS to install water mains and otherwise provide water service to all areas of the [Lake Cyrus development]”; therefore, the waterworks constructed to serve the Lake Cyrus development meet the definition of “public works” in § 39-2-1(5).

In its brief filed with this Court, LCDC nevertheless argues that the definition of “public works” in § 39-2-1(5) does not encompass the work done by BWS in the Lake Cyrus development:

“Lake Cyrus was not a ‘public works’ [project] as defined under the bid law, § 39-2-1(5), Ala.Code 1975. Lake Cyrus was already being developed in the City of Hoover with plans to purchase water from Birmingham when Mayor Mitchell and Charles Nevins came to Charles Givianpour’s office and asked that Lake Cyrus use BWS for water instead of Birmingham. If BWS wanted to sell water, rent fire hydrants, and loop the main line at Parkwood Road and Highway 150, Lake Cyrus had to be purchased as a package, if at all. A purchase of an ongoing project is not a public work to be let for bid.”

(LCDC’s brief at 29.) From LCDC’s standpoint, all the special financial terms and other nonstandard provisions in the 1998 water agreement may be seen as reasonable requirements to which BWS had to agree before LCDC would change its plans and use BWS instead of Birmingham Water Works as the water provider for the Lake Cyrus development. From LCDC’s perspective, the entire arrangement thus constituted a “package” for BWS to accept or reject in order to acquire access to the residential customers in the Lake Cyrus development. BWS, however, as a public utility, was required to comply with the competitive bid law. That law “require[s] strict competitive bidding on contracts for public works.” § 39-5-6. The 1998 water agreement obligated BWS to pay, at least in part, for the construction and installation of waterworks, i.e., water lines, valves, and hydrants, in the Lake Cyrus development. The property on which the waterworks were built was public property because LCDC had granted BWS an easement to it. Therefore, regardless of how LCDC viewed the project, the construction and installation of waterworks in the Lake Cyrus development constituted a public-works project under § 39-2-1(5).

The fact that the Lake Cyrus waterworks project was not a typical public-works project, inasmuch as the payments to LCDC were structured as reimbursements and deferments instead of payments, does not change the fact that it was a public-works project. For example, LCDC argues that the $273,000 payment it was to receive under the 1998 water agreement was negotiated because BWS wanted LCDC to install as the main extension for the development a 16-inch water main, larger and more expensive than the 12-inch main that was otherwise planned, to allow for possible future expansion by BWS. LCDC claims the $273,000 was to defer its expense in installing the larger main. However, that $273,000 payment violates the competitive bid law. The larger 16-inch water main undoubtedly serves a public purpose in that it was constructed to benefit BWS, not LCDC. The contract for the construction of the line — the 1998 water agreement — was unilaterally awarded to LCDC without any advertisement. The fact that LCDC likely could have constructed the water main at the lowest cost anyway because it already was planning to install a smaller water main in the space is immaterial; the competitive bid law demands strict compliance.

Because the 1998 water agreement involved a public-works project (in an amount in excess of $50,000), BWS was required by § 39-2-2 to advertise for sealed bids before entering into the contract calling for it to expend public funds on the project. BWS did not do so. By way of the 1998 water agreement, BWS and LCDC effectively bypassed the bidding process entirely so as to award the contract directly to LCDC. This violated § 39-2-2 and, pursuant to § 39 — 2—2(c), the 1998 water agreement is accordingly “null, void, and violative of public policy.” The trial court therefore erred in holding that it was a valid binding cdntract. Moreover, because § 39-5-6 and § 39-5-1 (a) forbid a party from receiving any payment in connection with a contract awarded in violation of the competitive bid law, regardless of the party’s culpability, the trial court also erred in awarding LCDC $224,979.83 for BWS’s alleged breach of contract. Because the 1998 water agreement was entered into in violation of the mandatory provisions of § 39-2-2, LCDC is not entitled to recover any payment for the work it performed under that contract.

IV.

Having determined that LCDC is not entitled to any more payments under the 1998 water agreement, we now consider BWS’s argument that the trial court erred by not ordering LCDC to reimburse BWS for payments that it previously made to LCDC under the 1998 water agreement. BWS argues that the law allows a party who pays money under a mistake of fact to recover that money. Russell v. Richard & Thalheimer, 6 Ala.App. 73, 60 So. 411 (1912). However, the legislature has set forth a specific statutory framework by which to recover public funds expended on a public-works contract that was not properly bid. Section 39-5-3, Ala.Code 1975, provides:

“An action shall be brought by the Attorney General or may be brought by any interested citizen, in the name and for the benefit of the awarding authority, to recover paid public funds from the contractor, its surety, or any person receiving funds under any public works contract let in violation of or contrary to this title or any other provision of law, if there is clear and convincing evidence that the contractor, its surety, or such person knew of the violation before execution of the contract. The action shall be commenced within three years of final settlement of the contract.”

BWS asserted its claim that it is entitled to recovery of payments previously made to LCDC in a- cross-claim filed on Decern-ber 6, 2004. Because such a cross-claim is not “[a]n action ... brought by the Attorney General or ... by any interested citizen, in the name and for the benefit of the awarding authority,” BWS is not entitled to the relief it seeks.

V.

We have held that the 1998 water agreement violated § 32-2-2 and is accordingly void. BWS argues, however, that this Court should sever the invalid provisions of the 1998 water agreement and enforce the remaining provisions. BWS states that the end result of such action would be a standard water-services contract, fair to both parties. LCDC argues that if the 1998 water agreement is void, it is void in its entirety.

The 1998 water agreement contains the following severance clause:

“If any term, covenant or condition of this agreement or the application thereto to any person or circumstance shall, to any extent, be invalid or unenforceable, then the remainder of this agreement or the application of such term, covenant or condition to other persons or circumstances shall not be affected thereby and each term, covenant and condition of this agreement shall be valid and enforceable to the fullest extent permitted by law.”

BWS argues that this clause, especially when considered in light of this Court’s stated policy that it will preserve as much of a contract as can survive its invalid provisions, Ex parte Celtic Life Ins. Co., 834 So.2d 766, 769 (Ala.2002), requires this Court to uphold the valid portions of the 1998 water agreement.

However, BWS fails to recognize that the 1998 water agreement does not merely contain invalid provisions; rather, the 1998 water agreement itself is void. Section 39-2-2(c) provides that “[a]ll contracts for public works entered into in violation of this title shall be null, void, and violative of public policy.” Where the legislature has by statute declared a contract void, this Court cannot attempt to salvage it by pruning certain provisions, in spite of our general policy in favor of preserving as much of a contract as can survive its invalid provisions.

VI.

The last remaining issue relates to ownership of the waterlines that are currently in place in the Lake Cyrus development. The 1998 water agreement contained a purchase option purporting to allow LCDC to repurchase all the waterlines previously tendered to BWS if it elected to do so. BWS has asked this Court to declare BWS the owner of those waterlines. Because we have held that the 1998 water agreement is void pursuant to § 39-2-2(e), LCDC does not hold a valid option to repurchase the waterlines previously tendered to BWS pursuant to the 1998 water agreement; those lines are thus the property of BWS. However, all lines that LCDC has not yet tendered to BWS remain the property of LCDC. LCDC may hereafter elect to tender those lines to BWS; however, because we have held that the 1998 water agreement is void, LCDC is under no legal obligation to do so.

VII.

The 1998 water agreement obligated BWS to use public funds to pay for the construction of waterworks inside the Lake Cyrus development; therefore, it was, pursuant to statute, a public-works project. Because it involved an amount in excess of $50,000, BWS was required by § 39-2-2 to advertise for sealed bids for the project; it did not do so. Instead, BWS awarded the contract to LCDC without advertising or soliciting bids. In doing so, BWS violated § 39-2-2, and the 1998 water agreement is therefore void. Based on this holding, it is unnecessary for this Court to consider BWS’s argument that Mayor Mitchell was not authorized to enter into the 1998 water agreement.

For these reasons, the trial court erred by entering a judgment in favor of LCDC and ordering BWS to pay LCDC $224,979.83. The judgment of the trial court is accordingly reversed, and this matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Bessemer Utilities includes BWS and the Bessemer Electric Service. Section 11-43D-14, Ala. Code 1975, provides that the mayor of Bessemer "shall be the chief executive officer, and shall have general supervision and control of all other officers, employees and affairs of the city, which shall include the management of the public utilities...."

      . Lake Cyrus is located in Hoover on approximately 600 acres adjacent to the Bessemer city limits. There are approximately 700 houses in the Lake Cyrus development.

      . On March 14, 2005, the trial court ordered BWS to pay immediately the $224,979.83 specified in the trial court's March 8, 2005, order. On March 15, 2005, BWS requested a stay pursuant to Rule 62(a), Ala. R. Civ. P.; however, the trial court denied its request. Accordingly, BWS deposited $224,979.83 with the clerk of the circuit court that same day. On March 16, 2005, the trial court ordered those funds to be disbursed to LCDC. After filing its appeal, BWS moved this Court to stay disbursement of the funds pursuant to Rule 8(b), Ala. R.App. P. This Court granted BWS’s motion and, on March 23, 2005, ordered LCDC to restore the $224,979.83 to the clerk of the circuit court no later than March 30, 2005. Because LCDC had already spent the money, the clerk of the circuit court accepted a property bond in lieu of cash.

      . We note that the State has filed an amicus curiae brief generally supporting BWS's arguments and making the additional argument that the favored treatment LCDC received by virtue of the 1998 water agreement violates a public utility’s duty not to discriminate among its ratepayers. However, although BWS may have raised that argument below, it has not advanced that argument on appeal, and this Court cannot, therefore, consider it now. See Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 174 (Ala.2005) (stating that to the extent an amicus curiae advances different arguments from the actual parties to the suit, those arguments cannot be considered).


source: Caselaw Access Project

author: PITTMAN, Judge. CRAWLEY, Presiding Judge,

license: Public Domain

text:
    FIRST PROPERTIES, L.L.C. v. James A. BENNETT. James A. Bennett v. First Properties, L.L.C.
    2050832.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      Banks C. Ladd, Mobile; and John T. Bender of McFadden, Lyon & Rouse, LLC, Mobile, for appellant/cross-appellee First Properties, L.L.C.
    Robert M. Galloway of Galloway, Smith, Wettermark & Everest, LLP, Mobile, for appellee/cross-appellant James A. Bennett.
   PITTMAN, Judge.

Under Alabama law, after a parcel of property has been sold because of its owner’s failure to pay ad valorem taxes assessed against that property (see § 40-10-1 et seq., Ala.Code 1975), the owner has two methods of redeeming the property from that sale: “statutory redemption” (also known as “administrative redemption”), which requires the payment of specified sums of money to the probate judge of the county in which the parcel is located (see § 40-10-120 et seq., Ala.Code 1975), and “judicial redemption” under §§ 40-10-82 and 40-10-83, Ala.Code 1975, which involves the filing of an original civil action against a tax-sale purchaser (or the filing of a counterclaim in an ejectment action brought by that purchaser) and the payment of specified sums into the court in which that action or counterclaim is pending. See generally William R. Justice, “Redemption of Real Property Following Tax Sales in Alabama,” 11 Cumb. L.Rev. 331 (1980-81).

These appeals, which were transferred from the Alabama Supreme Court pursuant to § 12-2-7(6), Ala.Code 1975, are taken from a judgment of the Mobile Circuit Court permitting judicial redemption from First Properties, L.L.C. (“the assignee”), of a parcel of real property by James A. Bennett (“the owner”). The sole issue presented by the assignee’s appeal is whether the judgment should be reversed because the owner was permitted to effect redemption at any time within three years from the entry of the judgment. The owner’s conditional cross-appeal, which seeks review of the trial court’s judgment only in the event the judgment is reversed as a result of the assignee’s appeal, concerns only the length of time that he should be allotted to effect redemption of the property if the judgment under review is reversed.

The record reveals that in 1988 the owner purchased two lots subject to a vendor’s lien that was ultimately satisfied. In April 1999, the Mobile County Probate Court entered a judgment ordering that the two lots were to be sold because the ad valo-rem taxes on the property due in 1998 had not been paid; the property was then sold in June 1999 to a business entity named “ESI-97,” and a certificate of sale was then issued to ESI-97. ESI-97 obtained a tax deed to the property in October 2002, sent a letter to the owner demanding possession of the property, and thereafter conveyed its interests in the property via a quitclaim deed to the assignee in March 2005.

In May 2005, the assignee brought an ejectment action against the owner in the trial court pursuant to Ala.Code 1975, § 40-10-74, which provides, in pertinent part:

“Any purchaser of lands at a tax sale other than the state or anyone claiming under him shall be entitled to possession of said lands immediately upon'receipt of certificate of sale from the tax collector; and, if possession is not surrendered within six months after demand therefor is made by said purchaser or his assignee, the said purchaser or his assignee may maintain an action in ejectment or a statutory real action in the nature of ejectment, or other proper remedy for the recovery of the possession of the lands purchased at such sales and shall be entitled to hold the possession thereof on recovery, subject, however, to all rights of redemption provided for in this title.”

The owner answered the complaint, admitting, among other things, that the assignee had been conveyed title to the property and that he had been given proper notice to vacate. The owner in August 2005 asserted a counterclaim in which he asserted a right to redeem the property from the assignee by paying accrued ad valorem taxes and interest. In that regard, the version of Ala.Code 1975, § 40-10-83, that was applicable to pre-2002 tax sales provided, in pertinent part:

“When the action [referred to in § 40-10-74] is against the person against whom the taxes were assessed or the owner of the land at the time of the sale, his heir, devisee, vendee or mortgagee, the court shall, on motion of the defendant made at any time before the trial of the action, ascertain the amount paid by the purchaser at the sale and of the taxes subsequently paid by the purchaser, together with 12 percent per annum thereon, and a reasonable attorney’s fee for the plaintiffs attorney for bringing the action, and shall enter judgment for the amount so ascertained in favor of the plaintiff against the defendant, and the judgment shall be a lien on the land sued for. Upon the payment into court of the amount of the judgment and costs, the court shall enter judgment for the defendant for the land, and all title and interest in the land shall by such judgment be divested out of the owner of the tax deed.”

The assignee filed a motion for a summary judgment in its favor, supported by documents detailing its tax title and its expenditures in connection with the property and the ejectment action against the owner; however, that motion was not ruled on. After the trial court held a hearing, a judgment was entered on May 5, 2006, declaring that the assignee was “entitled to immediate possession of the” property but that, the owner was entitled to redeem the property by paying into court the sum of $55,824.01 and “all subsequent ad valorem taxes paid by [the as-signee]” plus postjudgment interest of 12% within three years of the entry of the judgment.

Although' there is in the appellate record no transcript of the hearing held in the trial court, the assignee notes, and the owner agrees, that the essential facts in the case-are undisputed. We agree with the parties’ contention that in such a case an appellate court “must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review.” Continental Nat’l Indent. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005).

As we have noted, the version of § 40-10-83 that was applicable to pre-2002 tax sales specifically provided for the entry of a preliminary money judgment in an ejectment action in favor of a plaintiff and against the owner of the land at the time of the tax sale, and states that the plaintiffs interest in the land may be divested by payment into court of the sums set forth in the preliminary money judgment. However, § 40-10-83 does not place a rigid time limit upon the payment of those sums, and no Alabama case cited by the parties or discovered in our research has suggested a minimum or maximum time for effecting “judicial redemption” by paying such sums into court. Absent such authority, we cannot agree with the assignee that the trial court lacked jurisdiction to enter a judgment that permits the owner to pay the sums owed to the assignee within three years. That is because a judicial-redemption claim brought under § 40-10-83 sounds in equity, not in law (see State Dep’t of Revenue v. Price-Williams, 594 So.2d 48, 50 (Ala.1992)), and it is well settled that a judgment in equity can be final as to some issues and contemplate further proceedings as to others. See Norris v. Norris, 406 So.2d 946, 948 (Ala.Civ.App.1981). Thus, the trial court could properly have concluded that it could, upon payment of the sums set forth in its judgment necessary to redeem the property at some future date that might be more than 30 days after its judgment, act upon that judgment at that time so as to divest the assignee of its rights in the property.

Our conclusion that the trial court had jurisdiction to permit redemption more than 30 days after the entry of its preliminary money judgment does not, however, foreclose consideration of the correctness of that judgment. Although, as we have noted, the applicable version of § 40-10-83 is silent on the matter, it is the prevailing rule in American jurisdictions that a judgment allowing redemption from a tax sale should afford no more than a “reasonable time” for redemption to take place. See 85 C.J.S. Taxation § 1342 (2001); Taylor v. Arndell, 192 Ky. 249, 253, 232 S.W. 658, 660 (1921) (interpreting lower court’s judgment so as to have implicitly allowed a “reasonable time” to effect redemption, “which could not have exceeded a few days”); Larson v. Peppard, 38 Mont. 128, 137, 99 P. 136, 138 (1909) (indicating that delinquent taxpayers should have a “reasonable time, say thirty days,” within which to pay sums owed to tax purchaser’s assignee); Hill v. Street, 215 N.C. 312, 317, 1 S.E.2d 850, 853 (1939) (directing lower court to allow redeeming parties “a reasonable time” to pay sums owed tax purchaser); and Sweet v. Church, 47 S.D. 299, 303, 198 N.W. 706, 707 (allowing owner’s assignee “a reasonable time to be fixed by the [lower] court, but not to exceed 30 days,” in which to effect redemption).

Notably, none of the cases espousing a “reasonable time” limitation upon effecting redemption support the proposition that a 3-year period is a “reasonable time”; indeed, Taylor, Larson, and Sweet suggest that allowing a period of more than 30 days to effect judicial redemption would be treasonable. Moreover, the facts of this case are egregious: the owner failed to pay ad valorem taxes in 1998, triggering a tax sale in June 1999, and thereafter allowed the three-year period allowed for administrative redemption under § 40-10-120 et seq., Ala.Code 1975, to elapse without taking any action to redeem the property, all the while remaining in possession of the property. It was only in August 2005, more than six years after the tax sale had taken place (and after the assignee’s ejectment complaint had been filed in May 2005), that the owner could be bothered to offer to “do equity” by asserting a judicial-redemption counterclaim under § 40-10-83. The owner has already, in effect, been given more than a “reasonable time” to redeem the property after the June 1999 tax sale. We must agree with the assignee that the trial court erred in allowing the owner an additional three years from May 5, 2006, within which to effect the right of judicial redemption declared in that court’s judgment; we thus reverse the trial court’s judgment as to that issue.

Because we have concluded that the judgment is due to be reversed as a result of the appeal, the condition specified in the owner’s conditional cross-appeal has occurred, and that cross-appeal is ripe for review. However, the owner’s appellate brief does not, in contravention of Rule 28(a)(10), Ala. R.App. P., cite any legal authority in support of his contention that he should be afforded a 30-day period as of right “from any adverse ruling” on appeal within which to effect judicial redemption. We thus affirm as to the cross-appeal on the authority of Stone & Webster Construction, Inc. v. Lanier, 914 So.2d 869, 878 (Ala.Civ.App.2005). However, we would remind the parties that this court’s certificate of judgment as to these appeals will not issue for at least two weeks from the issuance of our opinion (see Rule 41, Ala. R.App. P.); further, we note that under our mandate the trial court will be required to enter a judgment on remand that permits the owner a “reasonable time” within which to redeem the property. In practical terms, the owner may yet have a significant amount of additional time to obtain the funds necessary to effect judicial redemption pursuant to the terms of the trial court’s judgment as amended on remand — perhaps even more than the 30 days sought by the owner.

The cause is remanded to the trial court for that court to amend its judgment so as to specify a “reasonable time,” consistent with our opinion, within which the owner is to pay the sums specified in the trial court’s May 5, 2006, judgment and effect judicial redemption of the property at issue or thereafter be divested of all right and title to that property.

APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — AFFIRMED.

THOMPSON and MURDOCK, JJ., concur.

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

CRAWLEY, P.J., dissents, with writing.

CRAWLEY, Presiding Judge,

dissenting.

Because the owner delayed six years in asserting his right to redeem the property, I believe that he has waived any possible equitable claim to a “reasonable time” period in which to effect judicial redemption of the property pursuant to an amended judgment.

      . Rabren v. Osmon, 613 So.2d 390 (Ala.1993), cited by the owner, is not inconsistent with our holding; although an owner of real property sold for taxes may, under Ala.Code 1975, § 40-10-82, be entitled to a three-year period after having lost possession of a parcel of property to a tax purchaser within which to bring a judicial-redemption claim against the purchaser under § 40-10-83, there is no such right to an additional three years within which to satisfy a judgment into which such a claim has merged.


author: BRYAN, Judge.

text:
    Judy T. McCLELLAN v. James E. McCLELLAN.
    2050015.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      John E. Medaris, Pelham, for appellant.
    Charles W. Gorham of Gorham & Cason, Birmingham, for appellee.
   BRYAN, Judge.

Judy T. McClellan (“the wife”) appeals a judgment divorcing her from James E. McClellan (“the husband”) insofar as it divided the parties’ marital property and failed either to award her periodic alimony or to reserve the right to award her periodic alimony at a later date if the circumstances should justify it. We affirm in part, reverse in part, and remand.

In pertinent part, the divorce judgment states:

“The parties were married in 1984 and subsequently divorced in 1987.[] They were thereafter remarried in 1988. There were no children born to the marriage.
“Each party provided sufficient evidence to support a divorce of incompatibility and irreconcilable differences. The [wife] raised allegations of domestic violence and the Court reaffirms it’s previous finding of insufficient evidence to support said claim.
“The major dispute between the parties at trial was over the identification and/or distribution of marital assets. The [husband] contended that the proceeds from the sale [of] ‘his’ business, Tape Craft[,] were maintained in his name only and should not therefore be considered marital assets. The Court notes that proceeds from an inheritance of the [husband] along with proceeds from the sale [of] Tape Craft were co-mingled in various investment accounts which were all used in support of the marriage and are therefore marital assets subject to equitable distribution by the Court. The Court orders the following:
“3. The marital residence was agreed to have a value of approximately 1.3 million dollars and has been listed for sale. Upon sale of the marital residence and after deduction of the costs of sale[, e]ach party shall be entitled to fifty per cent (50%) of the net proceeds.
“4. The [husband] shall have ownership and exclusive possession of the following:
“a. Greystone Country Club Membership
“b. Colliers Reserve Country Club Membership
“c. The Strand Country Club Membership
“d. Salomon Smith Barney Account
“e. Bull & Bear Investment Club account
“f. His IRA # 524 22379
“g. Ranger boat
“h. Mercedes E320
“i. [Various household furnishings]
“5. The [wife] shall have exclusive ownership and possession of the following:
“a. UPS Store
“b. Her Jewelry
“c. The Mercedes SL500
“d. The John Hancock policy insuring her life
“e. [Various household furnishings]
“6. The [husband] shall pay to the [wife] the sum of One Hundred Fifty Thousand and no/100 ($150,000.00) DOLLARS as alimony in gross, within thirty (30) days of this Order.
“8. The [husband] shall pay Thirty Thousand and no/100 ($30,000.00) DOLLARS toward the costs of the [wife’s] attorney within thirty (30) days of this Order.”

(Emphasis added.)

The wife timely filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion. Among other things, that motion alleged that the trial court had erred in failing to make a disposition of an account at Merrill Lynch (“the Merrill Lynch account”) that was a marital asset and in failing to award her periodic alimony or to reserve the right to award her periodic alimony at a later date if the circumstances should justify it.

Following a hearing on the wife’s Rule 59(e) motion, the trial court entered an order stating:

“At the time of the trial, the Court relied primarily on [the husband’s] Exhibit One for the various values of the assets of the marriage and based on the testimony and other exhibits assigned the following:
“The Court awarded the [wife] $150,000 as alimony in gross, representing her share of the Merrill Lynch account. The [divorce judgment] should have identified that the Merrill Lynch account was awarded to the [husband]. With that clarification by the Court and other issues which were resolved by the parties themselves, all further requests for relief [are] hereby DENIED.”

The wife then timely appealed to this court. On appeal, the wife challenges the trial court’s division of the parties’ marital assets and its failure either to award her periodic alimony or to reserve the right to award her periodic alimony at a later date if the circumstances should justify it. Because a trial court’s determinations regarding the division of marital property and periodic alimony are interrelated, an appellate court must consider those determinations together. See Bag- gett v. Baggett, 855 So.2d 556, 559 (Ala.Civ. App.2003).

On page 9 of her brief to this court, the wife states that “[t]he [trial] [c]ourt’s refusal to acknowledge the Merrill Lynch account as being a marital asset or using it as a marital asset is the primary error in this case.” However, in the divorce judgment, the trial court expressly found that the parties’ investment accounts, which would include the Merrill Lynch account, were marital assets. Moreover, in its order clarifying the divorce judgment and denying the wife’s Rule 59(e) motion, the trial court stated that it had intended the award to the wife of $150,000 in alimony in gross to represent her share of the Merrill Lynch account. Accordingly, the wife’s argument that the trial court erroneously failed to treat the Merrill Lynch account as a marital asset has no merit.

In addition to her primary argument, the wife makes a number of other arguments in support of her challenge to the trial court’s division of the marital property and failure to award her periodic alimony. Specifically, she argues that the trial court should have awarded her $400,000 to $500,000 from the Merrill Lynch account in order to make the division of marital assets equitable and that the trial court should have either awarded her periodic alimony or reserved the issue of periodic alimony because, according to the wife, the evidence established (1) that the parties had been married for 27 years; (2) that the husband had been responsible for $130,000 in losses from the Merrill Lynch account while the divorce action was pending; (3) that the husband had committed acts of domestic violence and had drunk excessive amounts of alcohol, which contributed to the breakdown of the marriage; (4) that the wife has not worked since approximately 1993 and her license to work as a registered nurse has lapsed; (4) that the wife has health problems; (6) that the husband had given the wife her jewelry as a gift and, therefore, it was her separate property and should not have been considered part of her share of the marital assets; and (7) that the UPS store was purchased by the parties for the wife’s son from a previous marriage and, therefore, it was not marital property and should not have been considered part of the wife’s share of the marital property.

Because the trial court in the case now before us based its determinations regarding the division of the marital property and periodic alimony on conflicting ore tenus evidence, we must accord those determinations a presumption of correctness. Id, Such determinations will be reversed only if they are so unsupported by the evidence as to be plainly and palpably wrong. Id. Moreover, in reviewing determinations of the trial court based on conflicting ore tenus evidence, we must view “ ‘ “the evidence in a light most favorable to the prevailing part[y].” ’ ” Diggs v. Diggs, 910 So.2d 1274, 1275 (Ala.Civ.App. 2005) (quoting Architectura, Inc. v. Miller, 769 So.2d 330, 332 (Ala.Civ.App.2000), quoting in turn Driver v. Hice, 618 So.2d 129, 131 (Ala.Civ.App.1993)).

A division of marital property should be equitable in light of the particular facts of the case. Diggs v. Diggs, 910 So.2d at 1276. However, the division does not have to be equal in order to be equitable. Id. The determination of what is an equitable division of marital property in light of the particular facts of the case rests within the sound discretion of the trial court. Id.

“The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.” .

O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996).

In Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003), this court stated:

“When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘ “the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.” ’ Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where ... the trial court fail[s] to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998).”

Viewing the evidence, as we must, in the light most favorable to the husband as the prevailing party reveals that the trial court had before it evidence supporting its finding that the husband was not guilty of committing acts of domestic violence. Moreover, the wife has not cited any evidence in the record supporting her argument that the husband contributed to the breakdown of the marriage by drinking excessive amounts of alcohol. This court cannot consider alleged facts that are not established by the record on appeal. Cf. Coleman v. Estes, 281 Ala. 234, 237, 201 So.2d 391, 393 (1967) (“The rule is that argument in brief reciting matters not disclosed by the record cannot be considered on appeal, and the record cannot be impeached on appeal by statements in brief, by affidavits, or by other evidence not appearing in the record.” (citations omitted)). Moreover, “[i]t is not the duty of this court to search the record to determine whether it contains evidence to support contentions made by a party.” Thomason v. Redd, 565 So.2d 259, 260 (Ala.Civ.App.1990). Accordingly, we cannot consider the wife’s argument that the husband contributed to the breakdown of the marriage by drinking excessive amounts of alcohol.

With regard to the wife’s argument that she has not worked since approximately 1993 and that her license to work as a registered nurse has lapsed, we note that the evidence before the trial court established that the wife could renew her license to work as a registered nurse by attending three weeks of continuing-nursing-education courses. With regard to the wife’s argument that the husband had given her her jewelry as a gift and, therefore, that it was her separate property, we note that the trial court had before it the husband’s testimony denying that he had given the jewelry to the wife as a gift. Therefore, the trial court, as the trier of fact, could have found that the jewelry was marital property rather than the wife’s separate property.

The only evidence in the record the wife has cited in support of her argument that she has health problems is her trial testimony to the effect that she did not have any physical problems that would prevent her from returning to her previous job as a registered nurse, although she has experienced “difficulty” with her eyes. Moreover, we note that the trial court had before it evidence from which it could have found that the $130,000 reduction in value of the Merrill Lynch account while the divorce action was pending was due to a change in the stock market rather than any negligence or misconduct on the part of the husband. Finally, although the parties may have initially purchased the UPS store with the intention of giving it to the wife’s son from a previous marriage at some point in the future, the wife cites no evidence indicating that the parties had transferred ownership of the UPS store to her son before the divorce. Accordingly, we find no error in the trial court’s treatment of the UPS store as a marital asset.

The evidence established that most of the parties’ marital assets were attributable to the husband’s sale of his business in 1996 for a purchase price of $3,000,000. The trial court determined that the value of the parties’ marital assets other than the Merrill Lynch account were as follows:

The evidence established that the Merrill Lynch account had a value of $784,900 when the case was tried.

The trial court awarded to the husband the following:

The gross value of the marital assets awarded to the husband must be adjusted by deducting the $30,000 in attorneys’ fees the trial court ordered the husband to pay to the wife and the $33,000 marital debt the trial court ordered the husband to pay. After those adjustments, the net value of the marital assets the trial court awarded to the husband is $1,338,900.

The trial court awarded to the wife the following marital assets:

The gross value of the marital assets the trial court awarded to the wife must be adjusted by adding the $30,000 value of the attorneys’ fees the trial court ordered the husband to pay the wife. After that adjustment, the net value of the marital assets the trial court awarded to the wife is $850,000.

Accordingly, the net value of the marital assets the trial court awarded to the husband was 61% of the net value of all the marital assets, and the net value of the marital assets the trial court awarded to the wife was 39%. In light of the evidence regarding the factors a trial court is to consider in dividing marital property, we do not find the disparity in the net value of the marital assets the trial court awarded to each party to be so great that its division of the parties’ marital property is plainly and palpably inequitable. Consequently, we affirm the trial court’s judgment as to the division of the parties’ marital property.

Likewise, in light of the evidence regarding the factors a trial court is to consider in determining whether to award periodic alimony, we do not find the trial court’s decision not to award the wife periodic alimony to be a plain and palpable abuse of discretion. Consequently, we affirm the trial court’s judgment insofar as it did not award the wife periodic alimony. However, we agree with the wife that the trial court erred in not reserving the right to award the wife periodic alimony at a later date if circumstances should justify it. See Walls v. Walls, 860 So.2d 352, 358 (Ala.Civ.App.2003). The failure either to award periodic alimony or to reserve the right to award periodic alimony at a later date precludes a trial court from later awarding periodic alimony. Id. Given the length of the parties’ marriage, the lifestyle enjoyed by the parties during the marriage, and the wife’s earning potential, the trial court should have reserved the right to award periodic alimony at a later date if the circumstances should justify it. Id. Therefore, we reverse the trial court’s judgment insofar as it did not reserve the right to award periodic alimony at a later date and remand the cáse to the trial court for it to amend its judgment iii that regard.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . This case was originally assigned to another judge on this court.

      . The parties’ testimony indicates that they were married for the first time in 1983 rather than 1984.

      . The wife cites no evidence in the record supporting her contention that the parties had been married for 27 years. The husband cites testimony by both parties establishing that they married for the first time in 1983. They divorced for several months in 1987 and 1988 and remarried in 1988. The divorce judgment was entered in this case in May 2005. Thus, the parties could not have been married for more than 22 years.


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    J.S., Jr., and J.S., Sr. v. S.C. and C.C.
    2050576 and 2050577.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      Jennifer Sellers, Montgomery, for appellants.
    Jason P. MeCartha, Montgomery, for appellees.
   THOMPSON, Judge.

J.S., Jr., and J.S., Sr., appeal the Elmore Juvenile Court’s judgment awarding custody of Dy.T. and Da.T. (hereinafter “the children”) to S.C. and C.C. We affirm.

The record reveals that the children, who are twin boys, were born on November 12, 2003. Approximately 8 months after the children were born, Che.T., the children’s mother, was arrested and charged with theft by deception for conspiring to sell the children to several prospective adoptive parents. The mother pleaded guilty in March 2005 to two counts of theft in the first degree and one count of theft in the second degree. Before her sentencing hearing, the mother left the children at the Adullam House in Wetump-ka to be cared for by A.S., the owner of the Adullam House, during the mother’s incarceration.

When the children were approximately 10 months old, S.C. and C.C. began to visit them once a week at the Adullam House at the encouragement of the mother. S.C. and C.C. first met the mother while she was still pregnant with the children. After the children turned a year old, S.C. and C.C. visited them several times a week, and they occasionally kept the children overnight.

On July 1, 2005, after the children had been in her custody for one year, A.S. filed a complaint in the Elmore Juvenile Court (hereinafter “the trial court”) alleging that the children were dependent and seeking custody of the children. On August 25, 2005, S.C. and C.C. filed a complaint in the trial court alleging that the children were dependent and seeking to terminate the parental rights of the mother and Chr.T., the children’s father. At the time S.C. and C.C. filed them complaint, the mother was incarcerated and the father had consented to relinquish his parental rights to the children and to the adoption of the children by S.C. and C.C. On March 6, 2006, S.C. and C.C. petitioned the trial court for custody of the children pending the outcome of their action seeking to terminate the mother’s and the father’s parental rights. On September 20, 2005, J.S., Jr., the children’s maternal uncle, and J.S., Sr., the children’s maternal grandfather, filed a complaint alleging that the children were dependent and seeking custody of the children.

Pursuant to an order of the trial court, home studies were conducted on J.S., Jr., and S.C. and C.C. On March 9, 2006, A.S. moved to intervene in the termination action filed by S.C. and C.C. and moved to amend her July 1, 2005, dependency complaint to include a request to terminate the mother’s and the father’s parental rights. The trial court granted A.S.’s motion to intervene; it also granted an oral motion made by J.S., Jr., and J.S., Sr., to intervene in the termination proceedings immediately before the final hearing in that action.

Following an ore tenus hearing, the trial court entered a detailed order on April 10, 2006, finding the children to be dependent, terminating the mother’s and the father’s parental rights, and awarding permanent, legal custody of the children to S.C. and C.C. In that judgment, the trial court denied the petition for custody filed by J.S., Jr., and J.S., Sr. That judgment stated, in pertinent part, as follows:

“[C.C. and S.C.] were shopping at Wal-Mart [store] sometime in 2003 when they noticed and began talking to [the mother], who was pregnant and appeared to be very tired, and her mother. [The mother] revealed she was expecting twins, that the delivery date was near, and this day she was shopping in preparation of her marriage to [Chr. TJ, the father of the twins. She was excited about the wedding but advised she had two children already and was planning to place the new babies for adoption. [C.C. and S.C.] told her they had five children and were now praying about whether or not to adopt a child from another country. They exchanged telephone numbers. Later, [C.C. and S.C.] assisted [the mother] with transportation on a few occasions. Shortly after the birth of the twins, [Da.T. and Dy.T.], on November 12, 2003, [the mother] took the children to Florida and placed them with paternal relatives. [The mother] and her mother were charged [with] theft by deception in a scheme to place the twins for adoption for money with several couples. Prior to her conviction, [the mother] traveled to Florida to retrieve the twins and placed them at Adullam House. This is a home owned by [A.S.] for the purpose of caring for the children of inmates at Julia Tutwiler Prison. [The mother] wrote a letter to [A.S.] and requested that she take care of the [children].
“When the [children] arrived at Adul-lam House in 2004, they had no belongings or paperwork. Both boys appeared jaundiced, had distended bellies, and were highly strung. [A.S.] took [the children] to the Community Rural Health Clinic where all shots and immunizations were brought up to date, and they were tested for hepatitis. The [children] are now on target for their age development, are calm, healthier, and happier. Their speech development is delayed but progressing.
‘When [the mother] left the children at Adullam House, she advised [A.S.] she had nowhere else for them to go, that she just wanted to come and visit them. [A.S.] first met S.C. when she brought [the mother] to Adullam House to visit the children. [The mother’s] visits lasted ten to fifteen minutes each time. She became irritated with the [children] when they wouldn’t go to her because they didn’t know her. The visits were generally unpleasant. [The mother] entered a plea of guilt to theft by deception and was incarcerated in Julia Tutwiler Prison, where she is still serving her sentence. [A.S.] takes [the children] to visit her each month at the prison.
“... [A.S.] has received no money or supplies from [the mother], [the father], or any family member to this date, with the exception of a t-shirt and a pair of shorts from [J.S., Jr.,] and [J.S., Sr.,] after a previous court hearing in this matter. On one occasion, she recalled receiving a call from [J.S., Jr.,] who inquired about [the children], but that was quite some time ago.
“[S.C.] took [the mother] to Adullam House on two occasions. Since that time, S.C., C.C., and their five children, ages two to fourteen, have become regular visitors at Adullam House. [A.S.] testified she encourages various individuals and families to develop a one on one relationship with each of the children at Adullam House, to make them feel special and give them additional attention. [A.S.] did not permit [C.C. and S.C.] to do this until she got to know them better, visited them in their home and knew they had been vetted by Agape Adoption Agency.
“[C.C. and S.C.] have developed a tremendous relationship with [the children]. The whole family attended their first birthday party. They ask if anything is needed and help with [the children]. They have taken them on regular outings and to their homes on five overnight visits. [C.C. and S.C.’s] children who are home schooled, love the [children], and play with them. When they come by Adullam House, both [children] run for their shoes and want to go with them. [C.C.] often stops in on the way to work and S.C. visits at least three times a week. [C.C. and S.C.] built a new room on to their home just for the [children], next to their own room.
“[The mother] discussed adoption with [C.C. and S.C.] when she called them collect from the county jail, [and] said she would agree to adoption if ... the father did. It was at this time that [the father] relinquished the children for adoption, but [the mother] changed her mind. [The mother] called them regularly from the jail. At no time did she make any reference to her father. S.C. met the mother’s father at a birthday party for [the mother’s] daughter ... in 2004.
“[S.C.] is a homemaker and home schools her children. She loves [the children] and wants them to become a part of the family. [C.C.] is a self-employed tree surgeon who schedules his work around his children so as to be present at their baseball and soccer games and other activities. He loves [the children] and wants to be a father to them. [C.C. and S.C.] have been married for over sixteen years.
“[J.S., Jr.], a half-brother to [the mother] (they have the same father), and [J.S., Sr.], her father, testified they were advised by [the mother] when she removed [the children] from Florida that they could not visit the children. They stated they were unaware where the children had been placed. They filed a petition for custody at [the mother’s] request. When [the children] lived in Florida, they saw them from time to time.
“[J.S., Jr.], is the primary petitioner. He is single and does not have any children. His father lives with him. Although aware of [the mother’s] legal problems and incarceration, neither [J.S., Jr., or J.S., Sr.,] made any effort to seek custody of the [mother’s] older children .... They are aware those two children had been placed in the custody of their step-grandfather, [the mother’s] mother’s husband, who subsequently moved to Florida and apparently lost his job and home. Approximately two months prior to this hearing, those children were placed in the custody of [the mother’s] half-brother (a stepson of [J.S., Sr.]) in Florida approximately forty-five minutes from where [J.S., Jr., and J.S., Sr.,] live. Both [J.S., Jr., and J.S., Sr.,] stated they were not interested in obtaining custody of those two children because they were pursuing custody of the children. They acknowledged they had had no contact with [the children] since [the children] left Florida, and had not provided for them materially or otherwise. Although they stated they didn’t know where [the children] were placed, [J.S., Sr.], acknowledged he attended [the] birthday party where he saw [the children] in 2004.”

The trial court explained its decision to award S.C. and C.C. custody of the children and to deny the petition filed by J.S., Jr., and J.S., Sr., stating:

“[J.S., Jr., and J.S., Sr.], have shown no interest in these children. In the Affidavit accompanying their petition [J.S., Jr.,] stated:
“T would like custody in order to keep the children in our large family. [The mother] has expressed a desire to raise them when she gets on her feet. As a family we support her in this and until that time I am able to care for them. I have made inquiries in the past.’
“Prior to filing their petition, [J.S., Jr., and J.S., Sr.,] showed absolutely no interest in [the children]. Since filing the petition they have visited the children very briefly after prior hearings in this matter and then only because advised to do so by their attorney. They have not otherwise provided for them. One of the exhibits admitted into the record is [a] list of income and expenses [of J.S., Jr.]. Once normal household expenses are taken care of, [J.S., Jr.,] has a scant amount remaining to take care of two growing toddlers. His father recently retired from the Florida Department of Corrections, resides with him, but there was no evidence presented regarding his income or how he would help with the [children]. Their plan is to place [the children] in daycare, with financial assistance from the State of Florida. Their concern for the children is lukewarm at best. The Court is not convinced that placement with [J.S., Jr., and J.S., Sr.,] even though they are relatives, is in the best interest of the children.
“[C.C. and S.C.] have gone above and beyond the call of duty to show their loving care and concern for these children, by visiting them on a regular basis, providing for their material needs as necessary, taking them on visits to their home, providing them with a new room in their home, and including them in their own lives, and the lives of their five children.”

J.S., Jr., and J.S., Sr., timely appealed. The parents did not appeal the termination of their parental rights.

On appeal, J.S., Jr., and J.S., Sr., do not challenge the trial court’s finding of dependency but, instead, contend that the trial court abused its discretion by awarding custody of the children to S.C. and C.C. when two members of the children’s family were willing and able to take custody of the children. J.S., Jr., and J.S., Sr., specifically argue that, although the findings of the trial court regarding S.C. and C.C.’s involvement with the children are supported by the evidence, those findings are insufficient, as a matter of law, to overcome the statutory preference found in § 12-15-1.1(1) and (8), Ala.Code 1975, “[t]o preserve and strengthen the child’s family whenever possible” while maintaining “a preference at all times for the preservation of the family.”

J.S., Jr., and J.S., Sr., rely exclusively on Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002), a plurality opinion, in support of their argument on appeal. In W.T.M., the trial court found the child dependent and placed the child in the protective custody of the Department of Human Resources (“DHR”); the child was then placed in foster care. W.T.M., the child’s father, and S.B., the father’s sister, jointly petitioned for custody of the child. Following a hearing, the trial court left the child in the custody of DHR. Nine months later, V.T., the father’s sister, and E.T., her husband, intervened in the action and petitioned for custody of the child. Shortly thereafter, S.P., the child’s foster mother, also intervened in the action, seeking custody of the child. The trial court subsequently entered an order awarding custody of the child to “ “her Foster Parent [S.P.], with whom [DHR] placed said minor child approximately 2½ years ago.” ’ ” W.T.M., 851 So.2d at 57.

The father and E.T. and V.T. appealed the judgment of the trial court. On appeal, this court, in a plurality opinion, held that the trial court had erred by determining that it was in the child’s best interest to be placed in the custody of her foster mother. 851 So.2d at 58. In so holding, this court relied, in part, on § 12-15-1.1, AIa.Code 1975, and stated

“[t]he evidence demonstrates that V.T. and E.T., the father’s sister and brother-in-law, are willing and able to assume physical custody of the child, that the child has developed a relationship with them, and that they are fit and loving caregivers. The undisputed evidence indicates that the father has had a relationship with the child since her birth and that, but for the father’s debilitating stroke and the resulting physical limitations, he would himself be petitioning for custody of the child. Given the father’s limitations, awarding custody of the child to the paternal aunt and uncle is the nearest approximation to a real parent-child relationship possible for W.T.M. and [the child]. The mere fact that the child has been in S.P.’s foster care for a long time is insufficient, as a matter of law, to prevail over the policies and preferences that support placing the child with her relatives.”

W.T.M., 851 So.2d at 60.

J.S., Jr., and J.S., Sr., acknowledge on appeal that this case is distinguishable from W.T.M. insofar as the instant case does not involve the children’s placement in the custody of DHR or the foster-care system. However, this case is distinguishable from W.T.M. in additional ways not acknowledged by J.S., Jr., and J.S., Sr., on appeal.

The evidence presented to the trial court in the instant case revealed that J.S., Jr., and J.S., Sr., had minimal contact with the children before filing their petition for custody of the children. A.S., who had cared for the children since they were eight months old, testified that J.S., Jr., and J.S., Sr., had had no contact with 'the children before filing their petition on September 20, 2005. The record indicates that J.S., Sr., learned that the children had been placed at the Adullam House as early as March 2004, when he attended a birthday party at which the children were present. J.S., Jr., testified that he only learned that the children were at the Adul-lam House in March 2005. However, testimony revealed that J.S., Jr., had called the Adullam house approximately one year before he filed the September 2005 petition for custody to inquire about the children. A.S. testified that, during her telephone conversation with J.S., Jr., he did not ask for or assert any rights to the children.

A.S. testified that she never received any financial assistance from J.S., Jr., or J.S., Sr., and that they did not contact the children on their birthday or at Christmas. A.S. testified that J.S., Jr., and J.S., Sr., had not contacted her to check on the children after filing the September 2005 petition.

J.S., Jr., testified that he visited the children periodically after they were born. J.S., Jr., admitted that he had not had much contact with the children, and he admitted that he saw the children for the first time when they arrived for a court hearing. J.S., Jr., testified that he filed his petition for custody after he learned that S.C. and C.C. had petitioned for custody and that they could possibly be awarded custody of the children. On cross-examination, J.S., Jr., testified that he would prefer that the children remain at the Adullam House rather than live with S.C. and C.C. J.S., Jr., stated that he petitioned for custody of the children because “[the children] are my family.”

J.S., Jr., testified that he would be the primary caregiver for the children should he receive custody of the children. J.S., Jr., is not married, and he was 27 years old at the time of the final hearing in this matter. He admitted that he had little experience with toddlers, but he stated that he had recently taken a parenting course in preparation for taking custody of the children. J.S., Jr., testified that he had moved into a four-bedroom, two-bathroom home with his father, J.S., Sr., in anticipation of gaining custody of the children. J.S., Jr., testified that he shared the household expenses with J.S., Sr. J.S., Jr., stated that he was financially capable of taking care of the children. However, on cross-examination, J.S., Jr., admitted that he would not have enough financial resources to care for the children without the financial assistance of J.S., Sr.

J.S., Sr., who was 63 years old at the time of the final hearing in this matter, testified that he had learned that S.C. and C.C. had filed a petition for custody of the children from the mother. J.S., Sr., testified that he wanted custody of the children because he felt that the children needed to grow up in their own family. J.S., Sr., admitted that he had only visited the children twice between March 2004 and March 2006, but he explained that he did not know that he could visit the children before he filed his September 2005 petition for custody.

Unlike V.T. and E.T. in W.T.M., there is no evidence indicating that J.S., Jr., or J.S., Sr., have developed a relationship with the children. In fact, J.S., Jr., and J.S., Sr., have only visited the children twice since filing their September 2005 petition for custody. The testimony revealed that J.S., Jr., and J.S., Sr., only became interested in obtaining custody of the children after they learned that the children could possibly be placed in the custody of S.C. and C.C. and that they showed little concern for the children during the one and one-half years before S.C. and C.C. filed their petition. Notably, J.S., Jr., and J.S., Sr., do not argue that it is in the children’s best interests to be placed with them for any reason other than their relation to the children by blood.

Section 12-15-1.1(1) sets forth a goal for the juvenile courts “[t]o preserve and strengthen the child’s family whenever possible,” but it does not mandate that the juvenile courts should overlook what is in a child’s best interests merely to preserve the family unit when doing so could prove to be detrimental to the child. J.S., Jr., and J.S., Sr., demonstrated a lack of concern for the welfare of the children until the threat of an award of custody to S.C. and C.C., and it is undisputed that the children have had virtually no relationship with J.S., Jr., and J.S., Sr.

A trial court’s judgment based on ore tenus evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte Byars, 794 So.2d 345 (Ala.2001); Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1088, 1085 (Ala.Civ.App.1999). J.S., Jr., and J.S., Sr., have failed to demonstrate error on the part of the trial court in making those findings necessary to support its April 10, 2006, judgment based on the evidence presented at the final hearing. Accordingly, the judgment of the trial court is due to be affirmed.

2050576-AFFIRMED.

2050577-AFFIRMED.

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

MURDOCK, J., concurs in the result, with writing.

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

MURDOCK, Judge,

concurring in the result.

The trial court’s judgment in this case is a judgment well grounded in the law, common sense, and human experience. I therefore concur in the result of affirming that judgment.

I cannot, however, agree with the main opinion’s rationale for affirming the trial court’s judgment. The main opinion affirms the trial court’s judgment by attempting to distinguish the facts of the present case from those in Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002) (plurality opinion).

As a threshold matter, I note that the main opinion in W.T.M. was not joined by a majority of this court but was merely a plurality opinion. Consequently, it does not constitute a binding precedent that must be distinguished in order to affirm the trial court’s judgment in the present case.

Second, I do not agree that the facts of the present case — as strong as they are in favor of a custody award to the nonrela-tives — support the award of custody to nonrelatives more strongly than did the facts in W.T.M. I refer the reader to the discussion of the facts in W.T.M. as set out in my dissenting opinion in Ex parte W.T.M., 851 So.2d at 61-63 (Murdock, J., dissenting), which discussion ends as follows:

“[The child] is now five and one-half years old. Every witness testified that the child is a happy, loving child. The trial court, in its discretion, awarded custody of [the child] to S.P., who has had physical custody of the child since she was an infant and who has provided the only home, and in a real sense, has been the only mother, the child has ever known.”

851 So.2d at 63.

Third, even if one were to accept the main opinion’s view that the facts of the present case more strongly support a custodial award to a nonrelative than did the facts in W.T.M., the distinction drawn by the main opinion between the two sets of facts would be immaterial under the legal standard sought to be applied by the plurality opinion in W.T.M. As that opinion, itself, explained:

“The juvenile court’s factual findings — that S.P. had had physical custody of the child for 3½ years, that S.P. had provided the child with a loving and nurturing environment, and that S.P. had given the child excellent care — are fully supported by the record. However, those factual findings are insufficient, as a matter of law, to overcome the statutory policies and preferences expressed in § 12-15-1.1 and § 12-15-62(c), Ala.Code 1975.”

851 So.2d at 58 (emphasis added). The main opinion in W.T.M. then analyzed at length two federal statutes and concluded that the discretion given to juvenile courts to discern and act upon the best interests of the child was significantly limited by those statutes and subsequent amendments to the Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-1 et seq., enacted by our legislature. 851 So.2d at 58-60. I disagreed at length with the main opinion’s discussion of both Alabama and federal law, including in particular the main opinion’s view of how “the statutory policies and preferences expressed in § 12-15-1.1 and § 12-15-62(c), Ala.Code 1975,” were to be construed and applied. 851 So.2d at 58. I offered an alternative exposition of Alabama law in which I concluded, among other things, that although Congress had conditioned certain federal appropriations on a state’s enacting certain amendments to its statutes governing foster care, the ultimate discretion of Alabama trial courts to decide the best interests of children in making custody awards remained intact. By this reference, I incorporate herein and adopt as part of this writing my discussion of applicable Alabama law set out in my dissenting opinion in Ex parte W.T.M. See 851 So.2d at 61-71.

Consistent with the foregoing, I believe that the proper analytical approach to the disposition of the case now before us is (a) to acknowledge that the main opinion in W.T.M. was merely a plurality opinion that has no binding precedential impact upon this or future cases and (b) to analyze the record and the trial court’s judgment in the present case, and to affirm that judgment, based on Alabama law as explained in my dissenting opinion in W.T.M.

      . Although separate case numbers were assigned to the proceedings involving each child, the court entered a single judgment disposing of these matters.