author: SEE, Justice.

text:
    Ex parte HEALTHSOUTH CORPORATION. (In re General Medicine, P.C. v. HealthSouth Corporation).
    1051366.
    Supreme Court of Alabama.
    Feb. 16, 2007.
    As Modified on Denial of Rehearing June 15, 2007.

      John P. Whittington, Joseph B. Mays, Jr., Patrick Darby, N. Christian Glenos, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham, for petitioner.
    John M. Johnson, William H. Brooks, and Philip M. Bridwell of Lightfoot, Franklin & White, L.L.C., Birmingham, for respondent.
   SEE, Justice.

HealthSouth Corporation petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to enter a summary judgment in its favor on the ground that General Medicine, P.C., has no standing to bring the underlying action against it. Because HealthSouth has not demonstrated a clear legal right to the remedy it seeks, we deny the petition.

Factual and Procedural History

General Medicine is a Michigan-based professional corporation consisting of physicians and advanced nurse practitioners who specialize in geriatrics and subacute and long-term care. General Medicine entered into a contract with Horizon/CMS Healthcare Corporation (“Horizon”) pursuant to which General Medicine was to provide medical services at Horizon’s long-term care facilities. In 1996, General Medicine brought a breach-of-contract action against Horizon in the United States District Court for the Eastern District of Michigan. The district court stayed the action from 1998 until 2003.

In February 1997, HealthSouth, a Delaware corporation with its principal place of business located in Birmingham, Alabama, acquired Horizon, paying $1.25 billion to purchase Horizon’s stock. From 1997 until 2001, Horizon was a wholly owned subsidiary of HealthSouth. In November 1997, HealthSouth sold Horizon’s long-term care facilities to Integrated Health Services, Inc. (“IHS”), for $1.25 billion; as a result of the sale, Horizon received $1.15 billion in cash and IHS assumed $100 million of Horizon’s debt. According to General Medicine, “HealthSouth accounted for the IHS sale on Horizon’s books and records by recharacterizing $414 million of fictitious earnings from a previous transaction as an asset sold to IHS”; HealthSouth then transferred $500 million of the cash proceeds from the sale from Horizon to itself and “replaced] the cash on Horizon’s balance sheet with a fictitious asset to offset the cash transfer.” General Medicine’s answer at 3-4. In November 2001, HealthSouth sold its shares of Horizon stock to Meadowbrook Healthcare, Inc., for $16.8 million. Thus, according to General Medicine, “HealthSouth fraudulently stripped more than $1 billion in assets from Horizon.” General Medicine’s answer at 4.

In April 2004, General Medicine entered into a settlement agreement in the federal litigation with Horizon and its owner, Mea-dowbrook. As part of the settlement, Meadowbrook and Horizon paid General Medicine $300,000 and consented to a judgment in the federal district court in which Horizon admitted liability in the amount of $376 million. General Medicine reserved its right to receive any payment “awarded or returned to Horizon or Meadowbrook as a result of any action brought by Gen[eral] Med[icine] against HealthSouth Corporation to execute on the Consent Judgment.” However, General Medicine covenanted not to execute on the consent judgment against Meadowbrook or Horizon beyond the $300,000 provided for in the agreement. General Medicine’s answer, tab C at 6. The settlement agreement also provided that the settlement

“is not releasing Horizon and/or Mea-dowbrook from liability to Gen[eral] Medficine] arising out of the Lawsuit or the Consent Judgment, and that this agreement does not affect Gen[eral] Med[icine]’s rights or claims against any other person or nonparty to this agreement.”

General Medicine’s answer at 7.

General Medicine filed the instant action in the Jefferson Circuit Court in August 2004, alleging that it was a creditor of Horizon and that assets had been fraudulently transferred from Horizon to Health-South. HealthSouth moved for a summary judgment, arguing that General Medicine had no standing to bring this action because it was not a “creditor” of Horizon under the Alabama Uniform Fraudulent Transfer Act (“AUFTA”), § 8-9A-1 et seq., Ala.Code 1975. The trial court denied the summary-judgment motion. HealthSouth then filed a motion for reconsideration and, alternatively, a motion for the trial court to certify its order for interlocutory appeal pursuant to Rule 5, Ala. R.App. P. The trial court denied both motions. HealthSouth now petitions for a writ of mandamus directing the trial court to enter a summary judgment in its favor. In July 2006, this Court ordered answer and briefs and stayed the proceeding in the trial court in order to consider the petition.

Standard of Review

Mandamus review is available where the petitioner challenges the subject-matter jurisdiction of the trial court based on the plaintiffs alleged lack of standing to bring the lawsuit.

“ ‘ “ ‘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). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala.2000).”
Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003) (emphasis added). “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Under such a circumstance, the trial court has “no alternative but to dismiss the action.” 740 So.2d at 1029.’ ”

Ex parte Richardson, 957 So.2d 1119, 1124 (Ala.2006) (quoting Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005)).

This petition follows the denial of a motion for a summary judgment. To grant a motion for a summary judgment, the trial court must determine that there is no genuine issue of material fact and that the movant is entitled to a judgment as a' matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden then shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Ex parte CSX Transp., Inc., 938 So.2d 959, 961 (Ala.2006). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); § 12-21-12(d), Ala.Code 1975.

In our review of a ruling on a motion for a summary judgment, we apply as to factual issues the same standard as does the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). We must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Ex parte CSX Transp., 938 So.2d at 962. The trial court’s ruling on a question of law carries no presumption of correctness. Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

Analysis

HealthSouth argues that General Medicine lacked standing to bring its claim under the AUFTA. According to Health-South, General Medicine’s covenant not to sue released Horizon from liability, thereby extinguishing the debt and divesting General Medicine of its status as a creditor and, therefore, of standing under the AUFTA. General Medicine argues that it is, as a matter of law, a creditor as that term is defined by the AUFTA, and that, at a minimum, the settlement agreement creates disputed questions of fact.

To demonstrate standing, General Medicine must show “(1) an actual concrete and particularized ‘injury in fact’ — ‘an invasion of a legally protected interest’; (2) a ‘causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be ‘redressed by a favorable decision.’ ” Stiff v. Alabama Alcoholic Beverage Control Bd., 878 So.2d 1138, 1141 (Ala.2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). It must allege “specific concrete facts demonstrating that the challenged practices harm [it], and that [it] personally would benefit in a tangible way from the court’s intervention.” Worth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (footnote omitted).

The AUFTA provides a remedy for a creditor who alleges that a debtor has fraudulently transferred assets in order to avoid satisfying the debt. § 8-9A-1 et seq., Ala.Code 1975. “ ‘[Fraudulent conveyances may be attacked only by a party who is injured or damaged by the conveyance, and a stranger to the transaction who is neither a creditor [n]or a purchaser or otherwise affected has no standing to maintain the action.’ ” Woodard v. Funderburk, 846 So.2d 363, 366 (Ala.Civ.App.2002) (quoting Jesse P. Evans, Alabama Property Rights and Remedies § 31.7(a) at 543 (2d ed.1998)).

The AUFTA defines a “creditor” as one who has a “claim.” § 8-9A-l(4), Ala.Code 1975. The statute defines a “claim” as “[a] right to payment, whether or not the right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.... ” § 8-9A-1(3), Ala.Code 1975. A “debtor” is “[a] person who is liable on a claim,” § 8-9A-1(6), Ala.Code 1975, and a “debt” is defined as “[l]iability on a claim.” § 8-9A-1(5), Ala.Code 1975. If General Medicine does not fit within the definition of a creditor in the statute, then it lacks standing to bring an action under the AUFTA. Woodard, 846 So.2d at 366 (“ ‘[A] fraudulent conveyance is valid as to all the world except creditors of the grantor.’ ” (quoting Bank of Lexington v. Jones, 456 So.2d 784, 785 (Ala.1984) (interpreting the predecessor statute to AUFTA))).

HealthSouth first argues that there is no disputed question of fact that would preclude the trial court from entering a summary judgment in HealthSouth’s favor. General Medicine disagrees, but it does not put forward any evidence other than the settlement agreement itself. General Medicine merely asserts that “at worst, the Settlement Agreement evinces a question of fact as to General Medicine’s status as a creditor that should be submitted to the jury.” General Medicine’s answer at 11. The settlement agreement, on its face, does not appear ambiguous or otherwise raise a genuine issue of material fact, and General Medicine fails- to point out any ambiguity or issue of fact created by the settlement agreement.

Because there is no genuine issue of material fact, we turn to the question whether HealthSouth is entitled to a summary judgment as a matter of law. This Court has stated: “ ‘ “The construction of a written document is a function of the court. If the document is unambiguous, its construction and legal effect are a question of law which may be decided under appropriate circumstances, by summary judgment.” ’ ” Boggan v. Waste Away Group, Inc., 585 So.2d 1357, 1359-60 (Ala.1991) (quoting Jehle-Slauson Constr. Co. v. Hood-Rich, Architects & Consulting Eng’rs, 435 So.2d 716, 720 (Ala.1983), quoting in turn Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1194 (Ala.1978)); see also Baldwin v. Branch, 888 So.2d 482, 484 (Ala.2004) (“When a document is unambiguous, its construction and legal effect are questions of law for the court to decide.”)- Further, the Court may use established rules of contract construction to attempt to resolve as a matter of law any ambiguity found within the four corners of the document. Alfa Life Ins. Corp. v. Johnson, 822 So.2d 400, 405 (Ala.2001) (“[I]f the trial court finds the contract to be ambiguous, it ‘must employ established rules of contract construction to resolve the ambiguity.’ ” (quoting Voyager Life Ins. Co. v. Whitson, 703 So.2d 944, 948 (Ala.1997))); see also Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d 395, 404 (Ala.Civ.App. 2003) (“In short, a court is to evaluate the contract on its face and apply rules of contract construction in an effort to resolve ambiguities before submitting the case to a jury”).

General Medicine agreed in paragraph 4 of the settlement agreement that it

“(i) will not enforce, execute against or attempt to collect in any fashion from Horizon and/or Meadowbrook as a result of or under the Consent Judgment, beyond the amounts identified in paragraph 6(i.) [$300,000]; and (ii) will not execute against or attempt to collect in any fashion from Horizon and/or Mea-dowbrook as a result of or under the Consent Judgment, beyond the amounts identified in paragraph 6(i.)[] below; and (iii) will not commence another lawsuit against Horizon and/or Meadow-brook for anything occurring prior to the date of this agreement.”

General Medicine’s answer, tab C at 2. The only difference between clauses (i) and (ii) is that the phrase “not enforce” is omitted from clause (ii); therefore, clause (ii) appears largely redundant.

General Medicine has not argued that the settlement agreement does not represent the intentions of the parties. According to its terms, the agreement bars General Medicine from suing Horizon or Meadowbrook for any money owed on the consent judgment in excess of the $300,000 referenced in paragraph 6(i).

HealthSouth argues that the covenant not to sue found in paragraph 4 of the settlement agreement operates to release Horizon from liability because, it argues, the covenant prevents General Medicine from suing to collect any amount beyond the $300,000 provided for in the settlement agreement, and it is undisputed that General Medicine has received that amount. HealthSouth argues that “ ‘[without a debt enforceable against the transferor, a creditor has no claim against the transferee.’ ” HealthSouth’s brief at 14 (quoting Jahner v. Jacob, 515 N.W.2d 183, 185 (N.D.1994)).

General Medicine acknowledges that the settlement agreement contained a covenant not to sue and notes that the express language in paragraph 5 of the agreement states that the argument is “not a release” and that General Medicine is “not releasing Horizon and/or Meadowbrook from liability ... arising out of the Lawsuit or the Consent Judgment....” General Medicine’s answer, tab C at 2. General Medicine also relies on paragraph 6.ii. as the basis of its claiming status as a creditor of Horizon, contending that this paragraph creates an obligation owed by Horizon separate from the covenant not to sue. Paragraph 6.ii. provides:

“The payment, conveyance, assignment or transfer by Horizon and/or Meadow-brook to Gen[eral] Med[icine], upon receipt, of any assets or property, of any kind or nature, awarded or returned to Horizon or Meadowbrook, as a result of any action brought by Gen[eral] Med[icine] against HealthSouth Corporation to execute on the Consent Judgment as long as Gen[eral] Medpcine] is not in breach of its obligations under paragraph 8(vi.) herein.”

General Medicine’s brief at 18. Under the settlement agreement, any payment Horizon or Meadowbrook receives as a result-of litigation brought by General Medicine against HealthSouth to collect on the consent judgment would be owed to General Medicine.

General Medicine contends that Michigan law governs the effect of the covenant not to sue. HealthSouth has not argued that Michigan law does not apply, although it analyzes the issue under both Michigan and Alabama law. The settlement agreement contains a choice-of-law clause that states that Michigan law will govern the interpretation of the contract. Moreover, “[i]n a contractual dispute, Alabama law would have us first look to the contract to determine whether the parties have specified a particular sovereign’s law to govern.” Stovall v. Universal Constr. Co., 893 So.2d 1090, 1102 (Ala.2004); see also Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133 (Ala.2003) (‘“Alabama law has long recognized the right of parties to an agreement to choose a' particular state’s laws to govern an agreement.’ ” (quoting Cherry, Bekaert & Holland v. Brown, 582 So.2d 502, 506 (Ala.1991))). Therefore, we apply Michigan law to determine whether the covenant not to sue operates as a release of liability.

Michigan law distinguishes between a release and a covenant not to sue:

“A release immediately discharges an existing claim or right. In contrast, a covenant not to sue is merely an agreement not to sue on an existing claim. It does not extinguish a claim or cause of action. The difference merely affects third parties, rather than the parties to the agreement.”

J & J Farmer Leasing, Inc. v. Citizens Ins. Co. of America, 472 Mich. 353, 357-58, 696 N.W.2d 681, 684 (2005). Thus, as between the parties, a covenant not to sue operates as a release. Industrial Steel Stamping, Inc. v. Erie State Bank, 167 Mich.App. 687, 693, 423 N.W.2d 317, 320 (1988) (“As between the parties to the agreement, the result [of a covenant not to sue or a release) is the same.”).

Michigan law requires the court to look to the language of the contract and to the intentions of the parties to determine the scope of a release. See Adair v. State, 470 Mich. 105, 127, 680 N.W.2d 386, 399 (2004) (“The scope of a release is controlled by the language of the release, and where, as here, the language is unambiguous, we construe it as written.”); Cole v. Ladbroke Racing Michigan, Inc., 241” Mich.App. 1, 13, 614 N.W.2d 169, 176 (2000) (“The scope of a release is governed by the intent of the parties as it is expressed in the release.”). The settlement agreement before us provides that it is a covenant not to sue and not a release; the agreement states that General Medicine “will not enforce, execute against[,] or attempt to collect” under the consent judgment and that it “will not commence another lawsuit” against Horizon or Mea-dowbrook. General Medicine’s answer, tab C at 2. Further, the agreement states that General Medicine

“is not releasing Horizon and/or Mea-dowbrook from liability to Gen[eral] Med[icine] arising out of the Lawsuit or the Consent Judgment, and that this agreement does not affect Gen[eral] Med[icine]’s rights or claims against any other person or nonparty to this agreement.”

General Medicine’s answer at 7.

Although the operation and effect of a covenant not to sue and that of a release may be the same as between the parties to the agreement, a covenant not to sue does not extinguish the underlying cause of action; it merely prohibits a party from pursuing it. J & J Farmer Leasing, 472 Mich, at 357-58, 696 N.W.2d at 684. In short, under Michigan law, because the breach-of-contract cause of action was not extinguished, General Medicine preserved its right to enforce the consent judgment against other parties, including Health-South.

HealthSouth cites cases that stand for the proposition that once the creditor can no longer enforce the debt against the debtor, the creditor has no claim against the transferee to whom assets have been transferred. In Harper v. Raisin Fertilizer Co., 158 Ala. 329, 48 So. 589 (1908), this Court held that the defendant in a fraudulent-transfer action could raise a statute-of-limitations defense that was available to the debtor. Harper thus stands for the principle that the transferee in an action brought against it to unwind an allegedly fraudulent transfer may put forward defenses available to the transferor. Harper does not, however, support HealthSouth’s argument that the existence of such defenses deprives the creditor of standing. When the statute of limitations expires, it does not extinguish the cause of action; instead, it makes the remedy unavailable. See Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 765 (Ala.2002) (“ ‘[A] statute of limitations generally is procedural and extinguishes the remedy rather than the right....’”). Further, the expiration of the statute of limitations does not affect the creditor’s standing to bring the action because such an affirmative defense may be waived. See Rule 8(c), Ala. R. Civ. P. (stating that an affirmative defense based on the statute of limitations that is not put forward in the defendant’s first pleading is deemed waived); State of Alabama ex rel. State of Ohio v. E.B.M., 718 So.2d 669, 670 (Ala.1998) (“The defense of the statute of limitations must be affirmatively pleaded, and if an answer does not include an affirmative defense, that defense is deemed to have been waived.”). Thus, Harper does not require this Court to hold that the fact that a claim is for some reason barred divests a party of standing.

HealthSouth supports its position with Jahner v. Jacob, 515 N.W.2d 183, 185 (N.D.1994), in which the Supreme Court of North Dakota stated that “the claimant loses her status as a creditor if her claim against the transferor becomes barred by the statute of limitations, a non-claim statute, or other method. Without a debt enforceable against the transferor, a creditor has no claim against the transferee.” (Citations omitted.) The rationale for this holding was, in part, that in North Dakota “[t]he effect of setting aside a fraudulent transfer of property is to revest title in the debtor.” Jahner, 515 N.W.2d at 185. The North Dakota court concluded that “ ‘surely the [Uniform Act] does not contemplate the absurdity of granting such relief where, as here, judgment cannot be obtained against the only party in whom the transferred property could be revested.’” (Quoting Laidley v. Heigho, 826 F.2d 592, 593-94 (9th Cir.1963).)

Other jurisdictions, however, hold that title does not revest in the debtor where a court sets aside a fraudulent transfer. See Roth-Zachry Heating, Inc. v. Price, 77 Or.App. 382, 387, 713 P.2d 634, 637 (1986) (“In essence, the effect of the judgment is to hold the transfer void only as to creditors but to recognize it as binding on the parties involved.”); West v. Baker, 109 Ariz. 415, 417, 510 P.2d 731, 733 (1973) (noting that, under Texas and Arizona law, “ ‘[a] creditor’s judgment subjecting property fraudulently conveyed by his debtor to the payment of his debt does not have the effect of reinvesting title in the fraudulent vendor.’ ” (quoting John Hancock Mut. Life Ins. Co. v. Morse, 132 Tex. 534, 539, 124 S.W.2d 330, 333 (Com.App.1939))).

Alabama law is consistent with that of those jurisdictions that hold that the effect of setting aside a fraudulent transfer is not to revest title in the debtor. This Court has held that “a conveyance or transfer made to hinder, delay, or defraud creditors is valid and operative between the parties when it has been fully consummated; after it is fully consummated, neither party can rescind it.” Hill v. Farmers & Merchants Bank of Waterloo, 641 So.2d 788, 790 (Ala.1994). Thus, in Alabama, a court’s setting aside of a fraudulent transfer does not revest title in the debtor. Instead, the transferee continues to own the fraudulently transferred assets; the transfer is void only as to the creditor, and the creditor can execute on those assets directly. § 8-9A-7(b), Ala.Code 1975 (“If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.”). In this case, the covenant not to sue Horizon does not prevent General Medicine from executing against the allegedly fraudulently transferred assets currently in HealthSouth’s possession.

General Medicine’s “right to payment” has not been extinguished because, under Michigan law, the settlement agreement did not vacate the consent judgment. Although the settlement agreement would prevent General Medicine from attempting to collect against assets currently in Horizon’s possession, it did not extinguish Horizon’s liability as to its assets that were allegedly fraudulently conveyed.

HealthSouth contends that General Medicine nonetheless lacks standing because, “[a]s a matter of law and logic, General Medicine’s standing to bring this AUFTA action cannot be based on an alleged right to payment that will exist only if this AUFTA action is allowed to proceed to a successful conclusion as if General Medicine had standing from the beginning. ...” HealthSouth’s reply brief at 5. HealthSouth cites Sierra Club v. Hawaii Tourism Authority, 100 Haw. 242, 257, 59 P.3d 877, 892 (2002), for the proposition that “ ‘[sjtanding must be established in the beginning rather than end of litigation’ ” (quoting Atlantic States Legal Found, v. Babbitt, 140 F.Supp.2d 185, 194 (N.D.N.Y.2001)). The Supreme Court of Hawaii’s holding in Sierra Club, however, was based on the plaintiffs failure to demonstrate an injury in fact and redress-ability. The court held that the alleged injuries the plaintiff had suffered — informational injuries and the increased likelihood of an erroneous decision — were conjectural and hypothetical. The court further held that, because the plaintiff had no right to certain procedures, any injury that followed from the deprivation of those procedures was not redressable. Sierra Club, 100 Haw. at 257, 59 P.3d at 892. Unlike the Sierra Club, General Medicine has demonstrated an injury in fact that can be redressed by the courts: the allegedly fraudulent transfer of assets left Horizon without sufficient assets to pay the consent judgment, and the AUF-TA provides a remedy to creditors in this situation.

Section 8-9A-7(b), Ala.Code 1975, allows a creditor who has obtained a judgment on a claim against the debtor to levy execution on the asset fraudulently transferred or on its proceeds. General Medicine has standing as a creditor of Horizon because it has a right to payment out of those assets allegedly fraudulently transferred to satisfy the consent judgment. For this reason, HealthSouth has failed to demonstrate a clear legal right to the relief it seeks.

Conclusion

Because HealthSouth has failed to demonstrate a clear legal right to an order directing the trial court to enter a summary judgment in its favor, we deny its petition for the writ of mandamus.

PETITION DENIED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . HealthSouth contends that the consent judgment in the federal action was the product of collusion, fraud, and bad faith and that the amount of Horizon's liability was greatly exaggerated. HealthSouth's brief at 5 n. 3. The question of HealthSouth’s right to challenge the legality of the consent judgment when General Medicine attempts to execute on the allegedly fraudulently transferred assets is not before this Court on this mandamus petition.

      . Paragraph 6.L provides:
      "The consideration for this Agreement between Gen[eral] Medficine], Horizon and Meadowbrook is the covenants contained herein, the Consent Judgment to be entered in the Lawsuit, the other agreements and provisions contained in this Agreement, and:
      "i. Horizon and/or Meadowbrook’s payments to Gen[eral] Med[icine] of the total sum of Three Hundred Thousand ($300,-000.00) Dollars, payable by check(s) drawn in favor of General Medicine, P.C. or its designee and delivered not later than fourteen days following the entry of the Consent Judgment in the Lawsuit....”
      General Medicine's answer, tab C at 2.

      . HealthSouth argues that, under Cook v. City Transport Corp., 272 Mich. 91, 261 N.W. 257 (1935), a party’s covenant not to sue on a breach-of-contract claim amounts to a release because, it argues, the covenant not to sue supersedes the original contract and destroys it. Thus, according to HealthSouth, a covenant not to sue all parties to a contract effectively extinguishes the contract. However, Cook distinguishes that rule, and it does not appear that any Michigan court has actually applied it in a century. Further, the Supreme Court of Michigan has more recently stated that a covenant not to sue does not extinguish a cause of action. J & J Fanner Leasing, 472 Mich, at 357-58, 696 N.W.2d at 684.

      . This type of injury occurs in specific circumstances where a statutory provision explicitly creates a right to information. Atlantic States Legal Found., 140 F.Supp.2d at 192.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E. Ted TAYLOR v. Larry D. STRIPLIN.
    1050313.
    Supreme Court of Alabama.
    April 13, 2007.
    As Modified on Denial of Rehearing June 22, 2007.

      Richard F. Ogle and Paul A. Liles of Ogle, Liles & Upshaw, LLP, Birmingham, for appellant.
    Joseph B. Mays, Jr., Jeffrey D. Dyess, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham, for ap-pellee.
    Michael L. Edwards and Matthew F. Carroll of Balch & Bingham, LLP, Birmingham, for amicus curiae The Bank, in support of the appellee.
   PER CURIAM.

E. Ted Taylor (“Taylor”) appeals from a summary judgment in favor of Larry D. Striplin (“Striplin”), holding as a matter of law that Striplin was entitled to the proceeds of a certificate of deposit interplead-ed by The Bank, a state-chartered bank in Birmingham (hereinafter referred to as “The Bank”). We affirm.

Undisputed Facts

Regional Sports Network, LLC (“RSN”), is a limited liability company formed in 1998. Pursuant to two promissory notes, one dated September 4, 1998, and the other dated October 14, 1998, The Bank loaned RSN a total of $3.5 million (hereinafter referred to as “the RSN loans”). The RSN loans were guaranteed by multiple shareholders of RSN, one of whom was Taylor. Taylor, through unlimited personal guaranties, guaranteed the entire indebtedness of the RSN loans. Additional collateral pledged as security for the RSN loans included a Kentucky horse farm owned by Taylor, as to which The Bank held a mortgage; real property owned by Taylor in Greene County, Alabama; investment accounts owned by Kirk Wood, Jr.; real property owned by Kirk Wood, Jr.; and the assets of RSN. In September 2000, Taylor sold the Kentucky horse farm and placed $2.7 million of the proceeds into a money-market account at The Bank; those proceeds were also pledged as collateral for the RSN loans.

On October 25, 2000, Striplin, a director and a shareholder of The Bank, executed a “Pledge and Assignment of Certifícate of Deposit and Account” (hereinafter referred to as “the Striplin pledge agreement”), pledging as additional security for the RSN loans a certificate of deposit (no. 31369) in the amount of $1 million. Strip-lin at the time was interested in investing in RSN. Jimmy Taylor, Sr., who was the chairman and chief executive officer of The Bank and Taylor’s brother, suggested to Striplin that, as an alternative to becoming an investor in RSN, he pledge a certificate of deposit as additional collateral for the RSN loans. Jimmy Taylor, Sr., knew that bank examiners had expressed concern to The Bank about the RSN loans because of the amount of money RSN appeared to be losing. The Striplin pledge agreement helped The Bank achieve an upgraded “pass rating” on the RSN loans. At the time Striplin pledged the certificate of deposit, he had no interest in RSN. Further, the Striplin pledge agreement was executed over two years after The Bank had loaned RSN a total of $3.5 million, and over two years after the RSN loans had been guaranteed by other guarantors.

The Striplin pledge agreement contained certain conditions that had to occur before The Bank could charge against the certificate of deposit in the event of a default of the RSN loans. The operative language of the Striplin pledge agreement states:

“Upon the failure of [RSN] to pay any Obligations according to its terms, or upon a default in the Obligations as defined in the agreements as evidencing such Obligations, and upon the expiration of one hundred and eighty (180) days following the foreclosure of all of the real estate pledged as collateral for [RSN’s] obligations to [The Bank] (or if none, then upon the expiration of one year from the date of the default), then the liability of the undersigned hereunder to [The Bank] shall become immediately due and payable, ... and [The Bank] may ... charge against the here-inabove [certificate of deposit] any balance of [RSN’s] Obligations to [The Bank], which are currently due and payable in accordance with the agreements evidencing such Obligations.”

(Emphasis added.)

On August 22, 2001, Taylor learned that Striplin had pledged the certificate of deposit as security for the RSN loans. On August 31, 2001, following several extensions of payment deadlines by The Bank, RSN defaulted on the RSN loans. Several limited guarantors made payments to The Bank under the terms of their obligations. On September 28, 2001, Taylor, as an unlimited guarantor of the RSN loans, tendered to The Bank $2,685,309.14, which represented the remaining amount of principal and interest due on the RSN loans. The Bank did not at any time following the default of the RSN loans attempt to collect against any of the collateral pledged for the loans. Thereafter, The Bank executed in Taylor’s favor a written assignment of numerous documents, including all guaranties, pledge agreements, and mortgages, that it had received in regard to RSN’s debt; among these documents was the Striplin pledge agreement.

Striplin and Taylor each claimed ownership of the certificate of deposit; The Bank filed an interpleader action against them and deposited the certificate of deposit with the clerk of the court. Both Striplin and Taylor filed motions for a summary judgment, each claiming ownership of the certificate of deposit. Following a hearing, the trial court concluded as a matter of law that Striplin was entitled to a summary judgment. Specifically, the trial court determined that the Striplin pledge was not supported by consideration and, alternatively, that Striplin’s liability under the Striplin pledge agreement was extinguished once RSN’s obligations to The Bank had been paid in full. The trial court certified the summary judgment as final pursuant to Rule 54, Ala. R. Civ. P. Taylor appeals.

Standard of Review

In reviewing a summary judgment, we use the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Banners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). Furthermore, “[i]f the terms within a contract are plain and unambiguous, the construction of the contract and its legal effect become questions of law for the court and, when appropriate, may be decided by a summary judgment.” McDonald v. U.S. Die Casting & Dev. Co., 585 So.2d 853, 855 (Ala.1991).

Analysis and Conclusion

Taylor contends, among other things, that the trial court’s holding — that Strip-lin’s liability under the Striplin pledge agreement was extinguished once RSN’s obligations to The Bank were paid in full— is in direct conflict with the clear language of § 8-3-2, Ala.Code 1975. Section 8-3-2, Ala.Code 1975, provides:

“A surety who has paid his principal’s debt is entitled to a transfer of the original and collateral security which the creditor holds; he has all the rights to realize thereon and to reimburse himself to the same extent as the creditor might have done before the surety paid him, whether paid before or after judgment; and he shall be substituted for the creditor and subrogated to all his rights and remedies; in effect, he shall be a purchaser of the debt and all its incidents.”

There is no question that Taylor, as surety for the RSN loans, was subrogated to all the rights and remedies of The Bank in relation to the RSN loans. However, it is clear that, under the law in Alabama regarding subrogation, Taylor, as subro-gee, “can acquire no greater rights than those possessed by the principal whose rights he asserts.” Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 607, 285 So.2d 468, 472 (1973). In Crutchfield v. Johnson & Latimer, 243 Ala. 73, 75, 8 So.2d 412, 414 (1942), this Court stated:

“A person entitled to subrogation must work through the creditor whose rights he claims. He stands in the shoes of the creditor and is entitled to the benefit of all the remedies of the creditor and may use all means which the creditor could to enforce payment. But he can only enforce such rights as the creditor could enforce, and must exercise such rights under the same conditions and limitations as were binding on the creditor, and hence, can be subrogated to no greater rights than the one in whose place he is substituted:’

(Emphasis added; citations omitted.)

Taylor further contends that Strip-lin’s liability is unconditionally triggered by the passage of one year from the date of default without any foreclosures having occurred. He relies on that portion of the Striplin pledge agreement describing the event triggering Striplin’s liability as follows:

“[U]pon the expiration of one hundred and eighty (180) days following the foreclosure of all of the real estate pledged as collateral for [RSN’s] obligations to [The Bank] (or if none, then upon the expiration of one year from the date of the default).”

(Emphasis added.)

According to Taylor, “none” refers to foreclosures, and there were no foreclosures. Striplin, on the other hand, contends that “none” refers to the absence of real estate pledged as collateral at the time of default. Because we conclude that, in all events, The Bank, and anyone standing in its shoes, could charge against Strip-lin’s certificate of deposit only if RSN’s indebtedness remained due and payable at the end of the one-year period following default, and it is undisputed that no indebtedness remained at that time, we need not address these conflicting contentions as to the meaning of the word “none” in the Striplin pledge agreement.

We must give the language of the Strip-lin pledge agreement its plain and ordinary meaning and determine the intent of the parties, if possible, from the provisions of the Striplin pledge agreement. The Striplin pledge agreement cites specific conditions that must occur before The Bank can charge against Striplin’s certificate of deposit. The pledge states that The Bank can, 180 days following the foreclosure of all of the real estate pledged as collateral on the RSN loans, charge against the certificate of deposit any balance due and payable to The Bank. It is undisputed that The Bank, following default of the RSN loans, never attempted to foreclose on any of the real estate pledged as collateral for the RSN loans. Taylor’s tender of the remaining balance due on the RSN loans rendered foreclosure by The Bank unnecessary. In the event there is no foreclosure of real estate pledged as collateral, the pledge states that The Bank, after the expiration of one year from the date of default, can charge against the certificate of deposit “any balance ... currently due and payable” to The Bank under the RSN loans. It is undisputed that RSN defaulted on its loans on August 31, 2001, and that on September 28, 2001, Taylor, as an unlimited guarantor, paid the remaining principal and interest due on the RSN loans, thereby resulting in no balance being “currently due” and “payable” to The Bank.

It is clear according to the plain language of the Striplin pledge agreement that Striplin’s liability under the agreement could arise no sooner than one year after the date of RSN’s default, i.e., September 31, 2002. Striplin’s liability under the pledge agreement was extinguished on September 28, 2001, the date Taylor tendered to The Bank the remaining balance due and payable on the RSN loans. Furthermore, the language of the Striplin pledge agreement specifically dictates that Striplin owned the certificate of deposit because it provided that The Bank could “charge against” the certificate of deposit only any balance “currently” remaining. Thus, Taylor’s reading of the condition of Striplin’s liability under the Striplin pledge agreement so narrowly as to ignore the necessity for a balance due and payable on the loans after the expiration of the one-year period following RSN’s default is inconsistent with the unambiguous terms of the pledge agreement.

The intent of the parties corroborates our reading of the Striplin pledge agreement, even if we were to conclude that it was ambiguous. Both The Bank and Striplin confirmed that the pledge of the certificate of deposit was intended as a “last-out” pledge. Striplin testified as follows:

“Q. [Attorney for Taylor:] ... It’s your position that this pledge was a last-out pledge; is that correct?
“A. Absolutely. That’s the way Jimmy [Taylor, Sr.,] had offered it, and that’s the way I accepted it.”

Jimmy Taylor, Sr., the chairman and chief executive officer of The Bank, testified as follows:

“Q. [Attorney for Striplin:] Let me ask you this way. Just tell me what your understanding was about the pledge that Mr. Striplin was going to execute?
“A. He was going to pledge that on the note, and that the other collateral was going to come before his note. And if the other collateral did not cover all the indebtedness, [Striplin’s] [certificate of deposit] could come into play. But if it did, his [certificate of deposit] would be released.
“Q. Is that what you mean by last out?
“A. Yes.
“Q. I think you’ve already testified it was your understanding when the loan was paid off, that released Mr. Striplin from his pledge?
“A. That was my understanding. That once it was paid off, [Striplin] would be released. Same as last out. If that’s last out, he would be released.
“Q. Because as last out, he would only be called on if the collateral and the guarantors failed to pay the loan off?
“A. Yes sir.”

(Emphasis added.)

As noted previously, Taylor was legally subrogated to all the rights and remedies accorded The Bank under § 8-3-2, Ala. Code 1975. However, once Stripliri’s liability to The Bank under the Striplin pledge agreement was extinguished, The Bank had no further right to enforce any charges against the certificate of deposit. Accordingly, Taylor, as subrogee, has no right to charge any amount against the certificate of deposit.

Because our decision in this case turns on the construction of the Striplin pledge agreement itself, we do not reach the trial court’s alternative holding as to lack of consideration. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

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

COBB, C.J., recuses herself.

      . The Bank has filed a brief in this case as amicus curiae.

      . We note that the following individuals are also limited guarantors of the loans but are not parties to this action: Terry DeWitt, Gary Andridge, Leon Ashford, Ron Ezell, William Fitzpatrick, Frank Lee, Jan Noojin, Scott Powell, Alan Pizzitola, Kirk Wood, Jr., Lloyd Wood, and Leah O. Taylor. Although these limited guarantors are not named parties in this action, Taylor, in his motion for a summary judgment, claims to be representing the interests of Ashford, Powell, Noojin, Fitzpatrick, Lee, and Leah Taylor, as the "paying guarantors."

      . In November 2000, Striplin redeemed certificate of deposit no. 31369 in the amount of $1 million and used the proceeds to obtain another certificate of deposit, no. 32392, in the amount of $815,821.48.


author: LYONS, Justice.

text:
    Ex parte Douglas John HOWELL. (In re Douglas John Howell v. State of Alabama).
    1060139.
    Supreme Court of Alabama.
    April 20, 2007.
    Rehearing Denied June 15, 2007.
    William J. Paul, Geneva, for petitioner.
    Troy King, atty. gen., Kevin C. Newsom, deputy atty. gen., and Stephanie N. Mor-man and Jean-Paul M. Chappell, asst, at-tys. gen., for respondent.
   LYONS, Justice.

Douglas John Howell appeals the affir-mance by the Court of Criminal Appeals of the trial court’s denial of youthful-offender status in his trial for first-degree rape on the basis that he did not adequately preserve the issue for appeal. We affirm.

Howell was arrested on April 24, 2003, and charged with first-degree rape. On the day of his arrest, Howell applied for youthful-offender status in the Geneva District Court, under § 15-19-1, Ala.Code 1975. The district court did not rule on the application. On August 7, 2003, Howell was indicted in the circuit court for the rape of G.B., a 7-year-old girl. Howell was 16 years old or older at the time of the incidents underlying the rape charge. § 13A-6-61(a)(3), Ala.Code 1975. On April 21, 2005, Howell applied for youthful-offender status in the circuit court. The circuit court scheduled a hearing on Howell’s application for youthful-offender status for May 20, 2005, then rescheduled the hearing for May 25, 2005. Howell’s application for youthful-offender status was denied on May 25, 2005, by an order entered on the case action summary. His trial took place June 13-16, 2005, and Howell was found guilty of rape in the first degree. The judge sentenced him to 30 years’ imprisonment. Howell’s motion for a new trial was denied on August 10, 2005, and a new attorney was appointed to represent him. Howell appealed the judgment of conviction to the Court of Criminal Appeals.

The Court of Criminal Appeals unanimously affirmed the judgment of conviction in an unpublished memorandum. In his appeal to the Court of Criminal Appeals, Howell claimed, among other things, that denying him youthful-offender status was improper because, he claimed, the denial was based solely on the nature of the crime with which he was charged. The Court of Criminal Appeals held that because Howell did not object in the circuit court to the denial of his application for youthful-offender status, he had not preserved that issue for appeal. We granted certiorari review solely to examine this question of first impression for this Court: whether an objection or exception in the circuit court is necessary to preserve for appellate review an order of the circuit court denying a defendant’s application for youthful-offender status.

The Court of Criminal Appeals, in holding that Howell was required to object to the denial of youthful-offender status in the circuit court to obtain appellate review of that adverse ruling, relied on Harris v. State, 794 So.2d 1214 (Ala.Crim.App.2000). The Court of Criminal Appeals stated in Harris:

“Harris contends that the trial court abused its discretion by arbitrarily denying his request for youthful-offender status. Specifically, he argues that the trial judge denied youthful-offender status based solely on the charges themselves, without consideration of the particular facts involved.... However, there is no indication in the record that Harris objected to the trial court’s denial of youthful-offender status. Therefore, this issue was not properly preserved for our review.”

794 So.2d at 1221.

An application for youthful-offender status is merely a printed form filed by the defendant requesting treatment as a youthful offender and consenting to an investigation to determine whether such treatment is warranted. The application does not contain information specific to the applicant, beyond the applicant’s name and the name of the applicant’s attorney, nor does it set forth the grounds upon which the applicant relies in seeking youthful-offender status. Although the circuit court held a hearing on Howell’s application for youthful-offender status, there is no transcript of that hearing in the record that would reflect Howell’s contentions in support of his application and his response to any arguments advanced by the State in opposition to the application.

The State contends that it is Howell’s obligation to ensure that the record on appeal is complete. We agree.

“In this case there was no transcript of the trial court’s proceedings. Thus, there was an absolute silence on the issues reviewed by the majority of the Court of Criminal Appeals. A reviewing court cannot predicate error on matters not shown by the record. Watson v. State, 398 So.2d 320 (Ala.Crim.App.1980).... Indeed, a silent record supports a judgment. Robertson v. State, 29 Ala.App. 399, 197 So. 73 (1940). It is the appellant’s duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Crim.App.1977) ...; Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959).”

Robinson v. State, 444 So.2d 884, 885 (Ala.1983). See also Bamberg v. State, 611 So.2d 450, 452 (Ala.Crim.App.1992) (“[I]f in fact the off-the-record discussion did concern the issue the appellant now raises, it was the appellant’s duty to make a complete record on appeal. Holder v. State, 584 So.2d 872 (Ala.Crim.App.1991).”).

Howell has not sustained his burden of providing us with a complete record; thus, we are unable to determine whether Howell’s contentions before the Court of Criminal Appeals in support of his argument that the denial of youthful-offender status was based solely on the nature of the offense were presented at the hearing on his youthful-offender status or were made for the first time on appeal. Because we cannot assume that Howell made the same arguments in the circuit court that he now makes on appeal, we are in the same situation as if he had sat mute at the hearing. In that context, we stated in Ex parte Walker, 972 So.2d 737, 750-51 (Ala.2007):

“The trial court conducted a hearing, at which Walker could have pursued this legal theory, objected to the State’s alleged lack of evidence of probable cause to arrest, presented evidence to support his allegation, and argued that the lack of evidence required that his statement be suppressed. Walker, however, remained silent; he did not pursue this issue in the trial court; and he did not allow the trial court the opportunity to prevent the alleged injustice. See Adams v. State, 585 So.2d 161, 164 (Ala.1991)(‘Matters not objected to at trial cannot be considered for the first time on appeal, since review on appeal applies only to rulings by the trial court.’). Cf. Coulliette v. State, 857 So.2d 793, 795 (Ala.2003) (holding that because a specific argument raised on appeal was not presented at suppression hearing, ‘ “[t]he motion [to suppress] did not give the trial court notice of the specific issues [the defendant] ... raise[d] in his [appellate] brief.... Therefore, the trial court did not have the opportunity to rectify these alleged errors.... [The defendant’s] motion was not sufficient to preserve the issues presented by [him] in his brief.” ’ (quoting Acree v. State, 673 So.2d 855, 856 (Ala.Crim.App.1995))).”

Because Howell did not adequately preserve for appellate review any error in the denial of his application for youthful-offender status, the Court of Criminal Appeals correctly affirmed Howell’s judgment of conviction, and the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

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

COBB, C.J., recuses herself.

      . Section 15-19-1 provides:
      “(a) A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall, and, if charged with a lesser crime may be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him. If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as provided in subsection (b) of this section.”

      . The unpublished memorandum in the Court of Criminal Appeals incorrectly gives this date as May 25, 2003.

      . We are not here presented with the issue whether an objection below is necessary to preserve for appellate review the denial of youthful-offender status in a case where a transcript of the youthful-offender hearing is included in the record and the transcript reflects that the matters asserted on appeal were raised at the hearing.


author: PER CURIAM. STUART, Justice

text:
    Ex parte Edward Dwight COLEMAN. (In re Edward Dwight Coleman v. State of Alabama).
    1060909.
    Supreme Court of Alabama.
    May 25, 2007.
    Edward Dwight Coleman, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

WRIT DENIED. NO OPINION.

SEE, LYONS, WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

STUART, J., dissents.

COBB, C.J., recuses herself.

STUART, Justice

(dissenting).

Consistent with my opinion expressed in Ex parte Butler, 972 So.2d 821 (Ala.2007), and Ex parte Jenkins, [Ms. 1051778, March 16, 2007] — So.2d-(Ala.2007), I maintain that a presiding judge or a sentencing judge does not have jurisdiction to entertain a motion for sentence reconsideration filed pursuant to § 13A-5-9.1, Ala.Code 1975, by an inmate who has been convicted of an offense that is statutorily defined as a violent offense. Edward Dwight Coleman was convicted of attempted murder, an offense that is defined in § 12-25-32(13)a.2 and (13)c, Ala.Code 1975, as a violent offense; therefore, Coleman is not a “nonviolent convicted offender” for purposes of § 13A-5-9.1, and the circuit court never had jurisdiction to entertain Coleman’s motion. That court’s judgment is void, and this Court should dismiss this petition. Therefore, I respectfully dissent.

Additionally, if the merits of this case were properly before us for review, I would disagree with the reasoning applied by the Court of Criminal Appeals in its unpublished memorandum affirming the judgment of the circuit court. Coleman v. State (No. CR-06-0026, Feb. 16, 2007), — So.2d — (Ala.Crim.App.2007) (table). In its unpublished memorandum, the Court of Criminal Appeals, relying on Wells v. State, 941 So.2d 1008, 1009 (Ala.Crim.App.2005), held that the circuit court properly denied Coleman’s motion for sentence reconsideration because the circuit court did not have jurisdiction to consider Coleman’s second or successive motion for sentence reconsideration. I disagree with the reasoning of the Court of Criminal Appeals in Wells and now in this case that a circuit court must summarily deny a second or successive motion for sentence reconsideration in a particular case because the circuit court loses its “jurisdiction.”

Alabama appellate courts have used the term “jurisdiction” loosely throughout the years and thereby have created confusion as to when a circuit court has jurisdiction to decide a case. In Ex parte Seymour, 946 So.2d 536 (Ala.2006), this Court began to undo the confusion with regard to the term “jurisdiction” and the meaning of that term by unequivocally stating that a circuit court’s jurisdiction is “derived from the Alabama Constitution and the Alabama Code” and, therefore, that “a defect in an indictment could not divest a court of its power to hear the case.” Ex parte Seymour, 946 So.2d at 538.

I maintain that just as a defect in an indictment does not deprive a circuit court of jurisdiction to hear a case, a circuit court is not deprived of jurisdiction to rule on a motion for sentence reconsideration in a particular case merely because the motion is a second or successive motion for sentence reconsideration. In other words, the fact that a motion is a second or successive motion to reconsider a particular sentence does not divest the circuit court of “its power to hear the case.” The circuit court has the jurisdiction to entertain a motion for sentence reconsideration, pursuant to the Alabama Code, and the circuit court has jurisdiction to consider a second or successive motion for reconsideration of a sentence that the circuit court has already considered. The reason that the second or successive motion for sentence reconsideration must be summarily denied is not that the circuit court loses jurisdiction; rather, it is because the circuit court has already considered a motion for reconsideration on the particular sentence, has satisfied the defendant’s right to due process, and has found that the relief sought is not warranted. Cf. Duke v. State, 48 Ala.App. 188, 190, 263 So.2d 165, 167 (1971)(explaining. that res judicata “ ‘applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” ’ ” (quoting Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948))). Although the circuit court retains jurisdiction, the circuit court is not required to entertain a second or successive motion for a reconsideration of that sentence; thus, such a motion warrants summary denial.

      . The court’s jurisdiction to entertain motions for sentence reconsideration rests in § 13A-5-9.1, Ala.Code 1975. See Ex parte Butler, 972 So.2d at 825 (“ '[T]he [trial court] possessed subject-matter jurisdiction to adjudicate [a motion for sentence reconsideration] under Section 13A-5-9.1.’ ” (quoting Kirby v. State, 899 So.2d 968, 974 (Ala.2004))).


author: PITTMAN, Judge.

text:
    Judy LYNN and David Lynn v. Blue Bell KELLEY.
    2050789.
    Court of Civil Appeals of Alabama.
    Feb. 2, 2007.
    Rehearing Denied June 8, 2007.
    Melvin Hasting, Cullman, for appellants.
    Dan J. Willingham of Fuller & Willing-ham, LLC, Cullman, for appellee.
   PITTMAN, Judge.

Judy Lynn and David Lynn filed an action in 2003 in the Cullman Circuit Court against Judy’s mother, Blue Bell Kelley, seeking to quiet title in themselves to a parcel of land measuring approximately 1.14 acres that, they claimed, was located adjacent to other property they owned and had been used as a “garden spot” for the preceding 25 years. After an ore tenus proceeding, the trial court entered a judgment determining that Judy and David had failed to demonstrate that they held title to the parcel via adverse possession. Judy and David’s appeal from the trial court’s judgment was transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

“It is well settled that where testimony is presented ore tenus, the trial court’s findings are to be favored with a presumption of correctness and not disturbed upon appeal unless palpably erroneous, without supporting evidence, or manifestly unjust.” Wallace v. Putman, 495 So.2d 1072, 1075 (Ala.1986). “This presumption is particularly strong in boundary line disputes and adverse possession cases ... and is further enhanced if the trial court personally views the property in dispute,” as occurred in this case. Id.

The record reveals that in 1952 Kelley and her husband were deeded a 28-acre tract of land that included the disputed parcel; the parties agree that that deed rendered Kelley and her husband tenants in common as to the 28-acre tract. In the years following Kelley and her husband’s acquisition of the 28-acre tract, but preceding the death of Kelley’s husband in August 1988, several parcels of that tract were jointly conveyed by Kelley and her husband to their children and those children’s spouses, including a 1-acre parcel conveyed to Judy and David in 1973; a slightly larger parcel west of that 1-acre parcel was later conveyed by Kelley and her husband’s heirs to Judy and David soon after Kelley’s husband had died. A current county tax map admitted into evidence revealed Kelley’s remaining property to be 4.3 acres in the shape of an irregular 11-sided figure that was largely surrounded by parcels held by family members; also, a parallelogram-shaped tract of land inside the 11-sided parcel had similarly been conveyed to David’s brother Terry Lynn and his wife Dana Lynn. Judy and David’s two parcels were located to the southeast and to the southwest of Kelley’s land; the land in dispute lies within the 11-sided parcel claimed by Kelley, to the north of the 1-acre parcel held by Judy and David that is southeast of the 11-sided parcel but to the south of the parallelogram-shaped tract of land conveyed to Terry and Dana.

At the May 2006 trial, Judy was asked how she had acquired the disputed property, and she replied that her father (Kelley’s husband) had given the property to her and David between 30 and 32 years beforehand; that testimony indicated, at most, a parol gift dating to no earlier than 1974, 14 years before the death of Kelley’s husband. Kelley testified that her husband had never told her of any such gift. According to Judy, she and David had laid septic-tank lines across the disputed property and had used that property as a garden. During cross-examination, Judy admitted that she and David had been permitted by Kelley to use any property in that area that belonged to her; that she had never told Kelley to stay off the disputed property; and that she had never paid taxes on the disputed property except in order to help Kelley during her husband’s lifetime. David admitted during cross-examination that Kelley had “never been.ousted from” the disputed property and that when he and Judy had requested that Kelley deed them the disputed property, Kelley had responded by saying that “she wasn’t going to give nobody nothing.” There was also testimony from other witnesses indicating that Kelley’s husband and Judy’s siblings had used the disputed property for gardening up to the death of Kelley’s husband in 1988 without seeking permission from Judy or David.

Alabama law recognizes two types of adverse possession: “statutory” adverse possession (see generally § 6-5-200, Ala.Code 1975) and adverse possession by prescription. “Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years.” Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980). Judy and David, in their brief to this court, claim adverse possession by prescription, i.e., they assert that they undertook a course of conduct for over 20 years that amounted to proof of “actual, exclusive, open, notorious and hostile possession [of the disputed property] under a claim of right.” However, our Supreme Court also noted in Kerlin that when a party “claims title to land by way of adverse possession, the presumption is in favor of the record owner, and a heavy burden of proof rests on the one claiming by adverse possession” (id. at 619).

Judy and David rely principally on Pendley v. Pendley, 338 So.2d 405, 407 (Ala.1976), in which the Alabama Supreme Court held that when a titleholder of a parcel of land makes a parol gift of that land to a party, the party’s “exclusive possession is hostile and constitutes possession adverse to the [titleholder]” that may ripen into a title via prescription. That case does not mandate reversal. First, although Pendley would support a determination that any possession of the disputed property by Judy and David between 1974 and 1988 was adverse vis-a-vis Kelley’s husband based upon the alleged parol gift, that period was less than the 20 years necessary to bar Kelley’s husband from reasserting his superior title, and upon his death in 1988 his heirs (which would include both Kelley and Judy; see §§ 43-8-41 and 43-8-42, Ala.Code 1975) became entitled to occupy the disputed property as cotenant successors to his interest. Second, at no time has Kelley been shown to have conveyed her interest in the disputed property so as to render Judy and David’s possession adverse to her under the rule announced in Pendley} Under Alabama law, the possession of a tenant in common is presumed to be the possession of all; such possession does not become adverse to the cotenant until he or she is actually ousted, the adverse character of the possession of the claiming tenant is actually known to the cotenant, or the possession of the claiming tenant is so open and notorious in its hostility and exclusiveness as to put the cotenant on notice of its adverse character. Ex ‘parte Walker, 739 So.2d 3, 6 (Ala.1999).

Further, in this case, there was substantial evidence tending to show that Judy and David’s use of the disputed property was permissive rather than exclusive and hostile. The trial court could properly have concluded from the evidence that other members of Kelley’s family, including Kelley and her husband, had used the disputed “garden spot” even after the alleged parol gift of that property by Kelley’s husband and that Judy and David had not asserted a claim of a right to the disputed property superior to Kelley or her husband’s other heirs before suing Kelley in 2003.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

THOMAS, J., recuses herself.

      . Indeed, David’s admission that he and Judy had requested Kelley to convey the disputed property to them may well have been deemed fatal to their adverse-possession claim. See Kerlin, 390 So.2d at 619 (“efforts to buy the property from the record owner constitute acknowledgment of his superior title, and thus do disprove ... adverseness, since there is then no claim of right”).


author: THOMPSON, Presiding Judge.

text:
    Wendy Roberts MAYO v. William O. LAWTER, as personal representative of the estate of Charles W. Lawter, deceased.
    2060383.
    Court of Civil Appeals of Alabama.
    May 25, 2007.

    Bruce J. McKee and James R. Moncus III of Hare, Wynn, Newell & Newton, L.L.P., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Wendy Roberts Mayo appeals from a December 28, 2006, order of the trial court denying her request for postjudgment interest on an award in a judgment entered in her favor on June 28, 2006. We reverse and remand.

Mayo and Charles W. Lawter, now deceased, were involved in an automobile accident. Mayo sued William O. Lawter (“the personal representative”), as personal representative of the estate of Charles W. Lawter, and on June 28, 2006, the jury empaneled for the trial returned a verdict in favor of Mayo in the amount of $12,500. The trial court entered a judgment in favor of Mayo in that amount on the same day. Neither party appealed from that judgment.

James Moncus, Mayo’s attorney, sent a letter to the trial court on December 1, 2006, regarding a dispute that had arisen between Mayo and Lawter’s insurer, State Farm Mutual Automobile Insurance Company (“State Farm”). In the letter, Mon-cus stated that State Farm had sent Mon-cus a check for $12,500 dated September 10, 2006, but that it had not included any amount for postjudgment interest, as Mon-cus had previously requested. Moncus attached a copy of the check to the letter. Moncus also claimed in the letter to the trial court that, at the time he received payment from State Farm, $265.76 in interest had accrued on the judgment. Finally, Moncus also asserted in the letter that counsel for the personal representative had requested a hearing regarding the payment of postjudgment interest on September 13, 2006.

The trial court ordered a hearing on the dispute over postjudgment interest, and on December 28, 2006, it entered an order in which it denied Mayo’s request for post-judgment interest. Mayo timely appealed to this court.

On appeal, Mayo contends that the trial court erred in failing to award her postjudgment interest from the date of the June 28, 2006, judgment. The personal representative did not file a brief on appeal. “Where the facts of the case are undisputed and the trial court is called upon to determine a question of law, no presumption of correctness attaches to the trial court’s ruling and this court’s review is de novo.” Gilbert v. James Russell Motors, Inc., 812 So.2d 1269, 1271 (Ala.Civ.App.2001). As § 8-8-10, Ala.Code 1975, provides:

“Judgments for the payment of money, other than costs, if based upon a contract action, bear interest from the day of the cause of action, at the same rate of interest as stated in said contract; all other judgments shall bear interest at the rate of 12 percent per annum, the provisions of Section 8-8-1 to the contrary notwithstanding....”

(Emphasis added.)

Because the underlying action is a tort action and not an action based upon a contract, the June 28, 2006, judgment falls under the “all other judgments” portion of the statute, which states that the judgment “shall bear interest.” Id. (emphasis added). Under the plain language of the statute, Mayo was entitled to interest that accrued after entry of the June 28, 2006, judgment at a rate of 12% per year.

“When statutory language is clear and unambiguous, this Court is compelled to give that language its plain meaning, giving effect to the apparent intent of the legislature.” Robinson v. Evans, 959 So.2d 634, 638-39 (Ala.2006). Therefore, we agree with Mayo that the trial court erred in denying her request for post-judgment interest. See Smith v. MBL Life Assurance Corp., 604 So.2d 406, 407 (Ala.1992)(“Section 8-8-10, Ala.Code 1975, states that all ‘¡^judgments for the payment of money, other than costs,’ bear interest from the date of judgment.”); State Dep’t of Human Res. v. R.L.R., 743 So.2d 495, 498 (Ala.Civ.App.1999) (“Under Alabama law, all judgments, other than judgments based upon contract actions, bear interest at the rate of 12 percent per annum.”).

Accordingly, we reverse the trial court’s December 28, 2006, order and remand the case for the trial court to enter a judgment in favor of Mayo for the amount of interest that has accrued since the entry of the June 28, 2006, judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . The record does not reveal whether Lawter died as a result of the car accident or as a result of some other cause.