author: PER CURIAM. STUART, Justice

text:
    CONTINENTAL CASUALTY COMPANY v. SOUTHTRUST BANK, N.A.
    1041136.
    Supreme Court of Alabama.
    Jan. 6, 2006.
    Jonathan W. Young and Meghan M. Hubbard of Wildman, Harrold, Allen & Dixon, Chicago, Illinois; Elizabeth W. McElroy of Baxley, Dillard, Dauphin, McKnight & Barclift, Birmingham; and Thomas A. Radney of Radney & Radney, LLC, Alexander City, for appellant.
    Victor L. Hayslip and Jon H. Patterson of Burr & Forman, LLP, Birmingham, for appellee.
   PER CURIAM.

Skilstaf, Inc., initiated a civil action against SouthTrust Bank, N.A., and Continental Casualty Company, seeking to enjoin Continental from drawing on, and SouthTrust from honoring, a letter of credit (hereinafter “the LC”). The LC was established by SouthTrust at Skilstaf s request for the benefit of Continental. Continental filed a cross-claim against South-Trust, alleging breach of contract, fraud, and negligence, and that SouthTrust’s refusal to honor Continental’s sight draft on the LC violated § 7-5-101 et seq., Ala. Code 1975. SouthTrust answered, denying that it had wrongfully refused to honor Continental’s sight draft.

SouthTrust and Continental each moved for a summary judgment on Continental’s cross-claim. After conducting a hearing, the trial court entered a summary judgment for SouthTrust and denied Continental’s motion. The trial judge certified the order as final pursuant to Rule 54(b), Ala. R. Civ. P. Continental appeals. We reverse and remand.

Facts

Skilstafs claim arose out of workers’ compensation insurance policies issued by Continental to Skilstaf from 1996 to 2001. Skilstafs workers’ compensation program was administered under certain claim-service agreements between Skilstaf and Continental. Skilstaf secured its obligations under the claim-service agreements with, among other things, the LC, which was in the amount of $810,000, issued by South-Trust in favor of Continental. The LC, No. 00.OD.02804, was issued on December 14, 2000.

The beneficiary of the LC was “Continental Casualty Company, c/o Risk Management Group, CNA Plaza, 333 S. Wabash, Chicago, IL 60685, Attn: Contract Administration”; the account party was “Skilstaf, Inc., 860 Airport Drive, Alexander City, AL 35010.”

The first two paragraphs of the LC stated:

‘We have established this Irrevocable Letter of Credit in your favor for drawings up to U.S. $810,000.00 effective December 14, 2000 and expiring at South-Trust Bank, International Department, 112 North 20th Street, Birmingham, AL 35203, with our close of business on December 14, 2001.
“We hereby undertake to promptly hon- or your sight draft(s) drawn on us, indicating our Credit No. 00.OD.02804, for all or any part of this Credit if presented at 112 North 20th Street, Birmingham, AL 35203, Attention: International Department on or before the expiration date or any automatically extended date.”

The LC also stated: “This credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce, Publication No. 500.... ” The LC had an expiration date of December 14, 2001, but was automatically renewed each year unless SouthTrust notified Continental at least 60 days before the expiration date that South-Trust elected not to renew.

On September 22, 2003, SouthTrust notified Continental of its election not to renew the LC beyond its expiration date of December 14, 2003. On December 10, 2003, Continental sent SouthTrust a sight draft at the address directed by the letter of credit; SouthTrust received the sight draft at 10:58 a.m. on Friday, December 12, 2003. By the sight draft Continental attempted to draw on the LC in the amount of $810,000. The sight draft read as follows:

“Pay to the order of CONTINENTAL CASUALTY COMPANY
“US Dollars Eight Hundred Ten Thousand and 00/100
“To: SouthTrust Bank, N.A.
“ ‘Drawn under the SouthTrust Bank, N.A. Letter of Credit No. 00.OD.02804 dated December 14, 2000.’
“Continental Casualty Company
“By: /s/ W.V. Romashko
“W.V. Romashko
“Vice President-Property Casualty Billing & Collections”

(Capitalization in original.)

The logo of Continental’s parent company — “CNA”—and Romashko’s telephone and facsimile numbers were also included on the sight draft.

The sight draft was submitted with a cover letter to SouthTrust from Romash-ko, also dated December 10, the letterhead of which bore the address “CNA Plaza 29 South, Chicago, Illinois 60685-0001.” The letterhead also repeated Romashko’s title, telephone number, and facsimile number and listed his e-mail address. The heading to the letter contained the following reference:

“Applicant: Skilstaf, Inc.
Letter of Credit No.: 00.OD.02804
Draw Amount: USD $810,000.00”

In the cover letter, Romashko advised SouthTrust as follows:

“Enclosed is our sight draft to effect a draw on the above referenced letter of credit. Please review the enclosed document and contact Agnes N. Domingo at [area code and telephone number] immediately, if the document is not acceptable, for any reason.
“Please wire transfer the funds to:
“Account Name: Continental Casualty Company
“Bank: JP Morgan Chase Bank
“ABA No.: [number provided in original]
“Account No.: [number provided in original]
“Ref. No.: GC1210132”

On December 15, 2003, SouthTrust contacted Agnes Domingo and advised her that it would not honor the sight draft “because Continental had not included its address on the sight draft.” SouthTrust requested of Ms. Domingo that “Continental submit a revised draft which included Continental’s address.” Continental did so, presenting a second sight draft, bearing Continental’s address, to SouthTrust on December 16, 2003. However, South-Trust refused to honor this second sight draft on the basis that it had been presented after the LC had expired on December 14, 2003.

Continental submitted evidence to the trial court indicating that both before and after the presentment of the first sight draft on December 10, 2003, SouthTrust honored nearly identical sight drafts presented by Continental or one of its related entities, i.e., sight drafts bearing the name, but not the address, of the beneficiary.

On March 18, 2005, the trial court issued its order, which stated:

“This matter comes before the Court on Motion for Summary Judgment filed by Cross-Claim Defendant, SouthTrust Bank, and Motion for Summary Judgment filed by Cross-Claim Plaintiff, Continental Casualty Company, against Cross-Claim Defendant, SouthTrust Bank, and the Court having received argument and multiple briefs from both sides, Orders as follows:
“The Court finds that there is no genuine issue of material fact and therefore, Grants the Motion for Summary Judgment filed by SouthTrust Bank as Cross-Claim Defendant. Motion for Summary Judgment filed by Cross-Claim Plaintiff, Continental Casualty Company, against Cross-Claim Defendant, Southtrust Bank, is hereby Denied.”

After the trial judge certified the March 18 order as final pursuant to Rule 54(b), Ala. R. Civ. P., Continental appealed from the summary judgment for SouthTrust and attempted to appeal from the denial of its own motion for a summary judgment.

Standard of Review

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999). The court must accept the tendencies of the evidence most favorable to the nonmoving party and must resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int’l, Inc. v. Boykin, 683 So.2d 419 (Ala.1996). ‘[W]here the evidence is in conflict, the issue must [be tried to the fact-finder].’ Kitchens v. Winn-Dixie Montgomery, Inc., 456 So.2d 45, 47 (Ala.1984). In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

Although we will review on the merits the summary judgment for South-Trust, we cannot entertain Continental’s attempted appeal of the denial of its own motion for a summary judgment. “ ‘Such an order is inherently non-final and cannot be made final by a Rule 54(b) certification .... An order denying summary judgment is interlocutory and nonappealable.’ ” Fahey v. C.A.T.V. Subscriber Servs., Inc., 568 So.2d 1219, 1222 (Ala.1990)(quoting Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 257-58 (Ala.1988)).

Legal Analysis

It is well established that “Alabama, with the majority of the states, follows the ‘strict compliance’ rule governing the acceptance of letters of credit.” N & C Props. v. AmSouth Bank, N.A., 558 So.2d 906, 909 (Ala.1990).

Under Alabama law, the rights and obligations of a bank that issues a letter of credit are set forth in § 7-5-108, Ala.Code 1975, which states, in part:

“(a) Except as otherwise provided in Section 7-5-109, an issuer shall honor a presentation that, as determined by the standard practice referred to in subsection (e), appears on its face strictly to comply with the terms and conditions of the letter of credit. Except as otherwise provided in Section 7-5-113 and unless otherwise agreed with the applicant, an issuer shall dishonor a presentation that does not appear so to comply.
“(e) An issuer shall observe standard practice of financial institutions that regularly issue letters of credit.”

Furthermore, this standard of “strict compliance” is consistent with the rules set forth in the International Chamber of Commerce’s Uniform Customs and Practice for Documentary Credits (“UCP”), which were expressly adopted by the parties when the LC was issued.

Article 13 of the UCP provides, in part:

“Banks must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit.... Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in compliance with the terms and conditions of the Credit.”

UCP, I.C.C. Pub. No. 500 (1993 Rev.).

Therefore, it is well established, and undisputed by both parties, that SouthTrust was required to honor Continental’s sight draft if it appeared, on its face, strictly to comply with the terms and conditions of the LC.

SouthTrust argues that its dishon- or of the first sight draft was proper because Continental failed to state in the sight draft the full name and address of the beneficiary and, thus, failed to comply strictly with the terms and conditions of the LC. Continental stated in its sight draft that payment should be made to “Continental Casualty Company.” South-Trust insists that Continental should have stated that payment be made to “Continental Casualty Company, c/o Risk Management Group, CNA Plaza, 333 S. Wabash, Chicago, IL 60685, Attn: Contract Administration,” because that information is the information listed under “Beneficiary” in the LC. SouthTrust alleges that Continental’s failure to state this full name and address in the sight draft caused a discrepancy between the sight draft and the terms of the LC, and that this discrepancy constituted a failure to comply with Alabama’s requirement of “strict compliance” with the terms of the LC. Therefore, SouthTrust contends, it was not required to honor the first sight draft.

In contrast, Continental contends that the inclusion of the full name and address of the beneficiary in the sight draft was not required in order to satisfy the requirement of “strict compliance” with the terms and conditions of the LC. Also, Continental argues, SouthTrust could have resolved any ambiguities it found in the sight draft by referencing the cover letter sent contemporaneously with the sight draft. Furthermore, Continental contends that SouthTrust did not observe its standard practice because SouthTrust had honored similar sight drafts for Continental both before and after the sight draft that is in question now.

Section 7-5-108(c) provides that when, as here, the basis for dishonor is a discrepancy in the presentation of the letter of credit and timely notice of the discrepancy is given, “an issuer is precluded from asserting as a basis for dishonor ... any discrepancy not stated in the notice .... ” unless such discrepancy results from fraud, forgery, or expiration of the letter of credit. Although the parties argue regarding the status and significance we should accord to the “Official Comment” to § 7-5-108; the recognition that should be accorded to the additional information available to SouthTrust from the cover letter that accompanied the December 10 sight draft; the import of Alabama case-law predating the January 1, 1998, effective date of § 7-5-101 et seq., “Uniform Commercial Code — Letter of Credit”; and the rationales and results of various cases from other jurisdictions, we conclude that the issue presented is sufficiently straightforward and circumscribed that we need determine only whether the “terms and conditions of the letter of credit” required that any sight draft presented, in order to appear “on its face strictly to comply” with those terms and conditions, include the address of the presenting beneficiary. SouthTrust argues in its brief:

“Continental’s entire argument rests on its mistaken belief that SouthTrust refused to honor its sight draft because it failed to include Continental’s address, and that the letter of credit contained no such provision. Again, Continental’s argument mischaracterizes the issue before this Court — SouthTrust did not dishonor the sight draft presented by Continental because of a ‘flaw or discrepancy’ not listed in the letter of credit. Rather, SouthTrust dishonored the sight draft because the beneficiary specifically noted in the letter of credit was not the same beneficiary noted in the sight draft. A sight draft containing a name of a beneficiary different than that listed in the letter of credit certainly fails to strictly comply with the letter of credit.”

(SouthTrust’s brief, p. 23.)

Because the undisputed evidence, submitted in the form of an affidavit from Ms. Domingo and not challenged or contradicted by SouthTrust, established that the discrepancy cited by SouthTrust in its December 15, 2003, notice to Continental was that “Continental had not included its address on the Sight Draft,” SouthTrust is restricted by § 7-5-108(c) from attempting to recharacterize the discrepancy stated in that notice.

What are “the terms and conditions of the letter of credit” upon satisfaction of which SouthTrust committed that it would “undertake to promptly honor its payment obligation”? The LC advised Continental that (1) the LC had been established in “your favor” and would be honored upon presentation of “your sight draft(s),” (2) the sight draft had to be drawn on the SouthTrust account, (3) the sight draft had to indicate SouthTrust’s letter-of-credit number 00.0D.02804, (4) the sight draft had to be for all or any part of the amount of the credit, (5) the sight draft had to be presented to SouthTrust at 112 North 20th Street, Birmingham, AL 35203, Attention: International Department, and (6) the presentation had to be on or before the original expiration date or any automatically extended expiration date. South-Trust acknowledges that Continental’s December 10 sight draft satisfied all of those terms and conditions, except for the identification of the beneficiary. Thus, the issue boils down to whether the term and condition of the LC that the beneficiary present “your sight draft” required something more than that the sight draft be from Continental. Stated differently, did the inclusion of Continental’s address in its listing in the LC as “beneficiary,” establish as a term and condition that any sight draft submitted by Continental include its address and specifically that same address listed on the LC. We conclude that the beneficiary was “Continental Casualty Company” and that it, as an entity, is the “your” referred to in the text of the LC. We agree with Continental’s statement in its brief that “[t]he beneficiary is and was always intended to be an entity, not a destination.” (Continental’s brief, p. 20.)

Although SouthTrust argues in its appellate brief that Continental’s sight draft failed “to correctly include the complete name of the beneficiary provided in the [LC]” and that the “beneficiary specifically noted in the [LC] was not the same beneficiary noted in the sight draft” (South-Trust’s brief, p. 8, 23), the sight draft does not support those contentions. The beneficiary of the sight draft was “Continental Casualty Company,” at whatever address it might be using at the time it might seek to submit a sight draft drawn on the LC. Taking SouthTrust’s argument to its logical extreme, if Continental had changed its physical or mailing address in any way subsequent to its listing its address as beneficiary on the LC and before the issuance of a sight draft, in order to comply strictly with the LC in submitting a sight draft drawing against it, Continental would have to state its original, but now incorrect, address. The notice of discrepancy given Continental by SouthTrust did not state that there was any doubt or uncertainty about whether the drawer of the sight draft, “Continental Casualty Company,” was the same entity as “Continental Casualty Company,” the beneficiary of the LC. Rather, in contacting Ms. Domingo, which Romashko’s December 10 cover letter requested SouthTrust do “if the document is not acceptable, for any reason,” SouthTrust simply advised Ms. Domingo that the sight draft was not acceptable because Continental had not provided its address. Because the LC nowhere required that a sight draft drawn on it by “Continental Casualty Company” list that entity’s address, we cannot hold, as a matter of law, that inclusion of an address on the sight draft was a term or condition of the LC. Accordingly, SouthTrust’s motion for a summary judgment, predicated solely on the contention that the December 10 sight draft “failed to contain the same identifying information as to [Continental] as SkilStafs [LC],” did not establish SouthTrust’s right to a judgment as a matter of law on Continental’s cross-claim in the case, and the summary judgment cannot be upheld.

Conclusion

For the reasons explained above, we reverse the summary judgment entered in favor of SouthTrust and remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

STUART, J., dissents.

STUART, Justice

(dissenting).

I respectfully dissent. I would affirm the judgment of the trial court. I do not believe that the sight draft presented to SouthTrust Bank by Continental Casualty Company strictly complied with the terms and conditions of the letter of credit.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte ADT SECURITY SERVICES, INC., and Alan Weatherford. (In re Tim Pauline and Sherry Pauline v. ADT Security Services, Inc., and Alan Weatherford).
    1041974.
    Supreme Court of Alabama.
    Jan. 13, 2006.

      John Richard Carrigan and Christopher A. Mixon of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, for petitioners.
    Adam M. Milam and W. Kyle Morris of Miller, Hamilton, Snider & Odom, L.L.C., Mobile; and Gordon K. Howell of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for respondents.
   WOODALL, Justice.

ADT Security Services, Inc. (“ADT”), and Alan Weatherford, the defendants in an action pending in the Washington Circuit Court, petition this Court for a writ of mandamus directing the Washington Circuit Court to vacate its order denying ADT and Weatherford’s motion for a change of venue to the Mobile Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conveniens statute. We grant the petition and issue the writ.

ADT, a Delaware corporation licensed to do business in Alabama, sells, installs, and services residential and commercial security systems. ADT has an office in Mobile. Tim Pauline, a resident of Mobile County, was formerly employed by ADT as a commercial-sales representative. Pauline worked out of ADT’s Mobile office, where he was supervised by Weatherford, ADT’s commercial-sales manager and, like Pauline, a resident of Mobile County. While ADT does business in Washington County, it has no office there and it maintains no records in Washington County. Pauline resigned from ADT after he was allegedly mistreated by Weatherford.

On April 1, 2005, Pauline and his wife, Sherry, sued ADT and Weatherford in the Washington Circuit Court, alleging numerous claims related to Pauline’s employment by ADT. ADT and Weatherford moved to dismiss the action or, in the alternative, to transfer the case to the Mobile Circuit Court. The trial court denied ADT and Weatherford’s motion, and they timely petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying their motion for a change of venue and to transfer the case to Mobile County.

In Ex parte National Security Insurance Co., 727 So.2d 788, 789 (Ala.1998), this Court described the manner of obtaining review of the denial of a motion for a change of venue in a civil action and the scope of this Court’s review:

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘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). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).
“In 1987, the Legislature enacted § 6-3-21.1(a), Ala.Code 1975, and adopted the doctrine of forum non conveniens. Section 6-3-21.1(a) states in pertinent part:
“ ‘With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.’
“(Emphasis added.) A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice. See generally Ex parte Family Fin. Services, Inc., 718 So.2d 658 (Ala.1998) (quoting Ex parte Gauntt, 677 So.2d 204, 221 (Ala.1996)(Maddox, J., dissenting)).”

ADT and Weatherford argue that they have a clear legal right to have the case transferred to Mobile County pursuant to § 6-3-21.1. It is undisputed that Mobile County is an appropriate venue to which the ease may be transferred.

“Because the defendants have established that another appropriate venue exists, it is necessary to determine whether transferring the case to that venue is ‘in the interest of justice’ or necessary ‘for the convenience of parties and witnesses.’ § 6-3-21.1, Ala.Code 1975. This inquiry depends on the facts of the case. Ex parte Jim Burke Auto., Inc., 776 So.2d 118, 121 (Ala.2000).”

Ex parte Sawyer, 892 So.2d 919, 922 (Ala.2004)(emphasis added). “In considering a mandamus petition, we must look at only those facts before the trial court.” Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.l995)(emphasis added). Of course, facts must be based upon “evi-dentiary material,” which does not include statements of counsel in motions, briefs, and arguments. Ex parte McCord-Baugh, 894 So.2d 679, 686 (Ala.2004). See also Providian Nat'l Bank v. Conner, 898 So.2d 714, 719 (Ala.2004).

In support of their motion, ADT and Weatherford filed an affidavit of Weather-ford. In the affidavit, Weatherford testified that Tim Pauline and he are residents of Mobile County. Further, he indicated that he was employed by ADT at its Mobile office, where Pauline was based during his employment with ADT. According to Weatherford, all of his meetings with Pauline during Pauline’s employment with ADT occurred in Mobile County. Also, Weatherford testified that ADT has no office in Washington County, has no employees based in Washington County, and maintains no records, files, or documents in Washington County.

In opposition to ADT and Weatherford’s motion to transfer, the Paulines filed an affidavit of Tim Pauline. Pauline’s affidavit did not refute any of the facts stated in Weatherford’s affidavit. Instead, Pauline focused on a single “cell phone/two-way radio” call he received from Weatherford while Pauline was in Washington County providing service to an ADT customer. According to Pauline’s affidavit, Weather-ford made insulting and defamatory remarks, which an employee of the customer overheard.

On August 16, 2005, the trial court conducted a hearing concerning ADT and Weatherford’s motion. Weatherford was the only witness to testify at the hearing. He confirmed the factual averments in his affidavit. Further, he stated that he had supervised Pauline’s work for ADT as a commercial-sales representative. Also, Weatherford testified that ADT’s office in Mobile was the primary location at which he performed his job duties, including making decisions relating to the employment of those under his supervision. Weatherford testified that the Mobile office is approximately 3 miles from the Mobile County courthouse and approximately 70 miles from the Washington County courthouse.

Weatherford was cross-examined by counsel for the Paulines. On cross-examination, he testified that ADT does business in Washington County and that Tim Pauline had some customers in Washington County. However, Weatherford did not know where any of the customers’ employees lived.

The facts in this case are strikingly similar to the facts in Ex parte Clarksville Refrigerated Lines I, Ltd., 860 So.2d 1261 (Ala.2003). In Clarksville, this Court stated:

“Clarksville Refrigerated Lines I, Ltd. (‘Clarksville’), the defendant in an action pending in the Russell Circuit Court, petitions this Court for a writ of mandamus directing the Russell Circuit Court to vacate its order denying Clarksville’s motion for a change of venue to the Lee Circuit Court pursuant to § 6-3-21.1(a), Ala.Code 1975, the forum non conve-niens statute. Because Clarksville clearly demonstrates that it is entitled to the relief requested, we grant the petition.
“Clarksville, a trucking company headquartered in Texas, hires independent owner/operators to transport cargo. Kenny Ford is an independent-contract truck driver. On April 4, 2001, Ford, a resident of Lee County, entered into an ‘Independent Contractor Agreement’ with Clarksville at Clarksville’s Opelika terminal in Lee County. Ford worked out of Clarksville’s Opelika terminal' — he picked up deliveries there, returned trailers there, and received job assignments there.[] Clarksville kept all of its records concerning Ford in Opelika. Clarksville operates no terminals in Russell County. Ford terminated his contract with Clarksville after a pay dispute arose between Clarksville and Ford at Clarksville’s Opelika terminal.
“On January 29, 2002, Ford sued Clarksville in the Russell Circuit Court, alleging breach of contract. Clarksville moved to dismiss the action, or in the alternative, to transfer the case to the Lee Circuit Court. The trial court denied Clarksville’s motion. Clarksville moved the trial court to reconsider its order, and the trial court denied that motion. Clarksville now petitions this Court for the writ of mandamus directing the trial court to vacate its order denying a change of venue, and to transfer the case to Lee County.
“In [Ex parte National Security Insurance Co., 727 So.2d 788 (Ala.1998),] this Court stated:
“ ‘It is undisputed that at the time of filing National Security [the defendant] maintained no office, and kept no documents, in Lowndes County. Smoke [the plaintiff] did not live in Lowndes County. No meetings between National Security and Smoke occurred in Lowndes County. In fact, all meetings between Smoke and employees of National Security occurred in Elmore County, where National Security seeks to have the case transferred. Further, Smoke was treated in Elmore County for her alleged mental anguish arising from her dealings with National Security. All of Smoke’s witnesses reside in Elmore County, and no witness for either party resides in Lowndes County.’
727 So.2d at 790. Under those circumstances, this Court held that the ‘ “interest of justice” require[d] the transfer of the action from a county with little, if any, connection to the action ... to a county with a strong connection to the action.’ 727 So.2d at 790.
“It is undisputed that Clarksville maintained no office and kept no documents in Russell County. Ford did not live in Russell County. No meetings between Clarksville and Ford took place in Russell County. In fact, all meetings between Ford and Clarksville took place in Lee County, where Clarksville seeks to have the case transferred. Further, two of Clarksville’s employees who will be important witnesses in this case live in Lee County.”

860 So.2d at 1262-64 (footnote omitted). Based upon these facts, this Court held “that the trial court exceeded its discretion when it denied Clarksville’s change-of-venue motion.” 860 So.2d at 1265. Therefore, this Court “order[ed] the trial court to vacate its order denying Clarksville’s motion and to transfer the pending action to the Lee Circuit Court.” Id. The facts of this case compel a similar result.

It is undisputed that ADT maintains no office and keeps no records in Washington County. The Paulines do not live in Washington County. No meetings between Weatherford and Tim Pauline took place in Washington County. Actually, all meetings between Weatherford and Pauline took place in Mobile County, where ADT and Weatherford seek to have the case transferred. Additionally, both the Paulines and Weatherford, who will be important witnesses, live in Mobile County.

In attempting to distinguish Clarksville from this case, the Paulines argue that Tim Pauline “was not merely a truck driver who delivered goods for ADT,” but, instead, “was a commercial sales representative who was required to develop contacts and relationships with companies, persons, and clients in Washington County.” Response to petition, at 14-15. Consequently, according to the Paulines, Tim Pauline’s “contacts [are] Washington County residents [who] will be material witnesses in this case.” Response to petition, at 15. However, in responding to ADT and Weatherford’s motion, the Pau-lines offered no evidence as to whether any of the potential witnesses, identified only in their counsel’s arguments, live in Mobile County or Washington County.

In attempting to distinguish this ease from Clarksville, the Paulines also argue that “[documents and papers evidencing [his] contact, relationship, services, and contracts with [his] Washington County clients are located in Washington County.” Response to petition, at 15. However, the Paulines provided the trial court with no evidentiary material supporting this contention, which directly contradicts Weath-erford’s affidavit, as well as Weatherford’s testimony at the motion hearing.

Based upon the facts properly before this Court, we hold that the “interest of justice” requires the transfer of this employment-related action from Washington County, a county with little, if any, connection to the action, to Mobile County, the county with a strong connection to the action. Consequently, we grant ADT and Weatherford’s mandamus petition and order the trial court to vacate its order denying ADT and Weatherford’s motion for a change of venue and to transfer the pending action to the Mobile Circuit Court.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and LYONS, SMITH, and PARKER, JJ., concur.

      . Ford delivered freight to Russell County for Clarksville.


author: SEE, Justice.

text:
    William D. STIFF v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    1041055.
    Supreme Court of Alabama.
    Jan. 13, 2006.
    Jim L. DeBardelaben and Dorothy F. Norwood, Montgomery, for appellant.
    Randy A. Dempsey, F. Wade Steed, and Jonathan D. Green of Dempsey, Steed, Stewart, Maddox & Gaché, LLP, Birmingham, for appellees.
   SEE, Justice.

William Stiff appeals from the Montgomery Circuit Court’s summary judgment in favor of the Alabama Alcoholic Beverage Control Board and its administrator, its chairman, and its members (“the Board”); the Governor of the State of Alabama; and the Attorney General of the State of Alabama (the Board, the Governor, and the Attorney General are hereinafter referred to collectively as “the defendants”) on his claim that § 28-7-16(a) and (b), Ala.Code 1975, violate the Commerce Clause of the Constitution of the United States. We affirm.

Facts and Procedural History

In 1979, the legislature enacted the “Native Farm Winery Act,” codified at § 28-6-1 et seq., Ala.Code 1975. The Native Farm Winery Act levied an excise tax of $.05 per gallon on all native farm wine sold in Alabama or dispensed as free samples at a native farm winery. § 28-6-4(b), Ala. Code 1975. The act stated in part: “The excise tax provided for in this section shall be in lieu of all other taxes imposed.” § 28-6-4(b), Ala.Code 1975.

In 1980, the legislature enacted the “Alabama Table Wine Act,” codified at § 28-7-1 et seq., Ala.Code 1975. The Table Wine Act levied an excise tax of $.45 per liter on all table wine “sold to [a] wholesale licensee or [the ABC] board, to be collected from the purchaser by the board or by a licensed retailer.” § 28-7-16, Ala.Code 1975. The Table Wine Act repealed all other taxes on wine, except those imposed under, and the exemption in, the Native Farm Winery Act. § 28-7-24, Ala.Code 1975. Thus, while native farm wines were taxed at $0.05 per gallon and were immune from other taxes, imported wines were taxed $0.45 per liter and were subject to other taxes.

On September 12,1997, William Stiff, an Alabama domiciliary and a consumer of table wine, sued the Board and the other defendants, alleging that § 28-7-16(a) and (b), Ala.Code 1975, imposed an excise tax on wine moving in interstate commerce, in violation of the Commerce Clause, and was therefore unconstitutional. Stiff argued that Alabama’s table-wine tax scheme discriminated against wine produced outside Alabama because it exempted Alabama native farm wine from the excise tax. Stiff sought a judgment declaring § 28-7-16(a) and (b), Ala.Code 1975, unconstitutional. Stiff also sought injunctive relief, a refund of wrongfully collected taxes, certification of a class composed of all persons who had purchased table wine imported since October 1,1980, and attorney fees.

The Board and the other defendants moved for a summary judgment, arguing, among other things, that Stiff lacked standing. The trial court agreed and entered a summary judgment for all of the defendants. Stiff appealed. We held that Stiff had standing to challenge the manner in which the State levies taxes on table wine. Therefore, we reversed the summary judgment in favor of all of the defendants and remanded the case to the trial court for further proceedings. Stiff v. Alabama Alcoholic Beverage Control Bd., 878 So.2d 1138, 1144 (Ala.2003).

While Stiffs case was proceeding, the legislature repealed the Native Farm Winery Act effective September 30, 2001. Act No. 2001-1114, Ala. Acts 2001 (4th Spec. Sess.). Furthermore, less than six months after we held that Stiff had standing to pursue his claim, we held in Alabama Alcoholic Beverage Control Board v. Henri-Duval Winery, L.L.C., 890 So.2d 70 (Ala.2003), that Alabama’s table-wine taxing scheme violated the Commerce Clause. In Henri-Duval Winery, we held that § 28-7-16, Ala.Code 1975, standing alone, imposes a nondiscriminatory tax and, therefore, is not unconstitutional on that basis. However, we also held that, when considered in light of the Native Farm Winery Act, the Alabama table-wine taxing scheme was unconstitutional. Henri-Duval Winery, 890 So.2d at 80.

“The [ABC Board] argues that § 28-7-16, Ala.Code 1975, levies a nondiscriminatory excise tax on all table wine and that Alabama’s statutory scheme for taxing table wine discriminates against foreign wine only by virtue of the tax exemption for native farm wine created in § 28-6-4(b), Ala.Code 1975. We agree that by providing a tax exemption for native farm wine, Alabama’s statutory scheme for taxing table wine discriminates against foreign wine; § 28 — 6—4(b), Ala.Code 1975, and the last clause of § 28-7-24, Ala.Code 1975, effect a tax scheme that discriminates against foreign wine.
“The trial court in this case erred because it allowed its analysis to be controlled by the form of the table-wine tax scheme. Applying the Supreme Court’s rationale in Bacchus [Imports, Ltd. v. Dias, 468 U.S. 263 (1984)], and West Lynn Creamery[, Inc. v. Healy, 512 U.S. 186, 200 (1994)], we hold that the nondiscriminatory excise tax in § 28-7-16, Ala.Code 1975, considered alone, does not violate the Commerce Clause, but that Alabama’s table-wine tax scheme, considered as a whole, does violate the Commerce Clause.”

Henri-Duval Winery, 890 So.2d at 77-78 (footnote omitted). We went on to hold that

“it would have been proper for the trial court to cure the constitutional defect in the tax scheme by striking the tax-exemption provision in § 28-6-4, Ala.Code 1975, and the last clause of § 28-7-24, Ala.Code 1975 (which provides that ‘nothing herein contained shall be construed to repeal or as repealing Chapter 6 of this title’).”

890 So.2d at 80.

After we decided Henri-Duval Winery, the Board and the other defendants moved for a summary judgment in Stiffs case against them. Relying on this Court’s statement in Henri-Duval Winery that § 28-7-16, Ala.Code 1975, standing alone, is not unconstitutional, the defendants argued that they were entitled to a judgment as a matter of law. The trial court concluded that the “gravamen of [Stiffs] case is the unconstitutionality of Ala.Code § 28-7-16(a)-(b)(1975),” and apparently interpreted Henri-Duval Winery as holding only that § 28-7-16, Ala.Code 1975, is not unconstitutional. The trial court therefore entered a summary judgment in favor of the Board and the other defendants. Stiff appeals.

Standard of Review

“ ‘A party is entitled to a summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” ’ University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1246 (Ala.2004) (quoting Rule 56(c)(3), Ala. R. Civ. P.). ‘ “[W]hen a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts.” ’ Moss v. Williams, 822 So.2d 392, 394 (Ala.2001) (quoting Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990)).”

Hunter v. Wilshire Credit Corp., 927 So.2d 810, 812 (Ala.2005).

Analysis

On appeal, Stiff argues that the trial court erred in concluding that Stiff is challenging only § 28-7-16(a) and (b), Ala. Code 1975. Stiff says that he is challenging the Alabama table-wine excise-tax scheme and that his complaint meets the pleading requirements of the Alabama Rules of Civil Procedure. We conclude that, regardless of whether Stiff is challenging only § 28-7-16(a) and (b), Ala. Code 1975, or the Alabama table-wine excise-tax scheme, the defendants are entitled to a judgment as a matter of law.

This Court, in Henri-Duval Winery, held that the Alabama table-wine excise-tax scheme then in effect was unconstitutional. We held that the constitutional defect could be cured by “striking the tax-exemption provision in § 28-6-4, Ala.Code 1975, and the last clause of § 28-7-24, Ala.Code 1975.... ” Henri-Duval Winery, 890 So.2d at 80. The legislature then repealed the Native Farm Winery Act effective September 30, 2001, thereby curing the constitutional unsoundness of the table-wine taxing scheme. Accordingly, the defendants are entitled to judgment as a matter of law as to the taxes collected after September 30, 2001.

Stiff filed his complaint in September 1997, four years before the effective date of the repeal, of the Native Farm Winery Act. He asserts in his complaint that he is due a refund for excess taxes paid “on imported table wines for all periods of illegal collection.” In Henri-Duval Winery, this Court noted that a state may remedy an impermissible discriminatory tax either (1) by refunding the difference between the amount of the tax paid and the amount of the tax that should have been paid to those who experienced a greater tax liability because of the constitutional defect or (2) by assessing and collecting back taxes from those who benefited from the reduced rates during the challenged tax period. Henri-Duval Winery, 890 So.2d at 80 (quoting McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, Department of Business Regulation of Florida, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990)). Stiff presented no evidence or argument to the trial court, nor to this Court, indicating that the State has failed to remedy the constitutional defect in one of the ways outlined in Henri-Duval Winery. Thus, we cannot conclude that the trial court erred in entering a summary judgment in favor of the Board and the other defendants.

Conclusion

Insofar as Stiff claims that § 28-7-16, Ala.Code 1975, standing alone, is unconstitutional, this Court decided that issue against him in Hmri-Duval Winery. Insofar as he challenges the Alabama table-wine excise-tax scheme, this Court held in Hmri-Duval Winery that the constitutional defect could be remedied by the repeal of § 28-6-4, Ala.Code 1975, and the legislature has remedied that defect by repealing the Native Farm Winery Act. Stiff has offered no evidence or argument indicating that the State has neither refunded excessive taxes paid under the previously unconstitutional tax scheme nor collected taxes owed by those whose payments were favored under that scheme. We therefore affirm the summary judgment.

AFFIRMED.

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

      . The act, which was repealed effective September 30, 2001, defined a “native farm winery” as a winery where the annual wine production did not exceed 100,000 gallons and where 75% of the berries, fruit, produce, or honey used to make the wine was grown or produced in Alabama by the winery. § 28-6-1(1), Ala.Code 1975. It defined "native farm wine” as wine produced on a native farm winery. § 28-6-1(2), Ala.Code 1975.

      . Act No. 2001-1114, Ala. Acts 2001, repealed § 28-7-16, Ala.Code 1975, and replaced it with a new § 28-7-16. Act No. 2001-1114 likewise imposed an excise tax of $.45 per liter on all table wine.

      . The last sentence in § 28-7-24, Ala.Code 1975, states that "nothing herein contained shall be construed to repeal or as repealing Chapter 6 of this title [the Native Farm Winery Act].”

      . Stiff also alleged that the Board had violated § 41-22-5, Ala.Code 1975, a part of the Alabama Administrative Procedure Act, by failing to establish a procedure by which the retail price of table wine is determined and by failing to publish such a procedure in the Alabama Administrative Monthly so that “interested persons” would have an opportunity to submit to the Board comments or proposals about the procedure.

      . We also held that the Board had violated § 41-22-5, Ala.Code 1975, a part of the Alabama Administrative Procedure Act.

      . The trial court did not mention the intervening repeal of the Native Farm Winery Act.

      . Stiff also contends that he is entitled to an award of attorney fees as a result of our holding in Stiff v. Alabama Alcoholic Beverage Control Board, 878 So.2d 1138, that the Board had violated § 41-22-5, Ala.Code 1975, a part of the Alabama Administrative Procedure Act. However, it is not clear from the record that Stiff’s request for attorney fees was considered or denied by the trial court. Although the trial court concluded that the defendants were entitled to a summary judgment on all of Stiff’s "claims,” we cannot construe that statement as a denial of Stiff's request for attorney fees. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (”[W]e think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain.”), and State Board of Education v. Waldrop, 840 So.2d 893, 900 (Ala.2002) ("[W]e will not interpret the trial court’s silence in its [final order] as to Wal-drop’s request for attorney fees as a denial of that request.”). Thus, we decline to address this issue.


author: MURDOCK, Judge.

text:
    S.J.R. v. F.M.R.
    2011261.
    Court of Civil Appeals of Alabama.
    May 7, 2004.
    Rehearing Denied Feb. 25, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1040819.

      Judy H. Barganier, Montgomery, for appellant.
    Jacqueline E. Austin, Wetumpka, for ap-pellee.
   MURDOCK, Judge.

This is a child-custody-modification case. S.J.R., the mother, appeals from a judgment entered by the Elmore Circuit Court awarding custody of the parties’ daughter to F.M.R., the father.

In July 1996, the Elmore Circuit Court entered a -divorce judgment based on an agreement of the parties. The divorce judgment awarded the parties joint legal custody of their daughter, who was born in May 1994. The divorce judgment awarded the mother primary physical custody of the child; it awarded the father visitation with the child every weekend.

In September 1999, the mother filed an “Emergency Motion for Ex Parte Relief’ in the Elmore Circuit Court, seeking to suspend the father’s visitation with the child. The mother’s emergency motion was based upon allegations by the child that the paternal grandfather had sexually abused the child during the father’s visitation. The trial court entered an ex parte order suspending the father’s visitation, as requested by the mother, and setting the case for a hearing to be held on September 23, 1999. Thereafter, the father filed a written response to the mother’s emergency motion.

A few days after the mother filed her emergency motion, she filed a petition to modify the father’s visitation rights; in that petition she requested that the trial court enter an order terminating the father’s visitation or requiring that his visitation be supervised. The father filed a motion requesting that the trial court appoint a guardian ad litem to represent the child’s interests; that motion was granted. The father also filed a motion requesting that the trial court enter an order “removing” Sharon Bell, a counselor who had been retained by the mother to evaluate the child, as the child’s counselor. The father alleged that Bell had not cooperated with his discovery efforts, that Bell appeared to be biased, and that Bell had ignored allegations of sexual abuse that the child had made against the mother’s fiancé. The father requested that the trial court designate another counselor to examine the child.

In October 1999, after holding a hearing, the trial court entered a pendente lite order maintaining custody of the child in the mother and awarding the father weekend visitation with the child. The trial court ordered the father not to allow other family members around the child; the trial court also ordered the mother not to allow other males around the child unless the mother was also present.

In his answer to the mother’s petition to modify his visitation rights, the father alleged that the Department of Human Resources (“DHR”) had a pending investigation regarding the child’s allegations that she had been sexually abused by the mother’s fiancé, noted that he had not been accused of abusing the child, and requested that the trial court deny the mother’s petition to modify his visitation rights. The father also filed a counterclaim, alleging that a material change in circumstances had occurred since the entry of the divorce judgment. He alleged that the mother had neglected the child, that the mother had hampered the child’s natural development, and that the mother had failed to protect the child from the mother’s fiancé. The father requested that the trial court enter an order awarding him physical custody of the child.

After the father filed his answer and counterclaim, the parties agreed that Bell would be removed as the child’s counselor and that the child would be evaluated by Sandra Segall, a licensed professional counselor. On November 9, 1999, the trial court entered an order on the case action summary sheet that stated, in part, “Sandra Segall is appointed [licensed professional counselor] for this Court, and [she is] to make a report of her findings and recommendations to this Court only.”

The trial court set the case for trial in April 2001. The trial court conducted a trial over a period of nine days during the months of April, June, July, and December 2001 and April 2002. In April 2001, approximately one week before the trial began, the mother deposed Segall regarding her numerous counseling sessions with the child since November 1999. After the deposition, the mother filed a motion requesting that the trial court “disqualify” Segall from serving as the “court-appointed expert” and that it appoint a new counselor to assess the child. The mother alleged, in part, that Segall had “no expertise ... in the specific area of intrafamilial child sexual abuse and no expertise in the assessment of allegations pertaining to in-trafamilial child sexual abuse.” The trial court denied the mother’s motion to disqualify Segall.

At the beginning of the trial proceedings in April 2001, the mother objected to Se-gall’s being allowed to testify in the case because, the mother said, she was not qualified to testify as an expert. Counsel for the mother also stated:

“[MOTHER’S COUNSEL]: I’m extremely concerned about how we’re going to proceed as far as the child’s allegations. I mean, there’s nothing in the rules in the law anywhere that say that we can end around the hearsay rule ... unless the out of court statement is not offered for the truth of the matter.[] Obviously, we will have testimony that involves what the child said. That’s illegal. I need some guidance from the Court about how we’re going to handle that. I will need to enter appropriate objections. We can’t just all presume to come in here and offer what the child said if it’s being offered for the truth of what she said. That’s another reason that we vehemently object to the — to any report from Sandra Segall being admitted.... This is not a criminal proceeding. The child sex abuse victim protection act does not apply. The rule is that [the child] would have to testify. There is no way to say that we’re just going to ignore that rule.
“[MOTHER’S COUNSEL]: ... I’m not trying to throw a monkey wrench in this. But what happened as far as Sandra Segall and all this information that is floating around out there, I cannot just say, okay, well, let’s all just waive the hearsay rule and whatever the child has said to anybody just comes in. It can’t happen that way. So I need to know how we’re going to proceed on that issue.
“COURT: Wait a minute. Is anybody calling the child?
“[MOTHER’S COUNSEL]: ... [W]e don’t want to put the child through this. But on the other hand, we can’t just waive our rights as far as the hearsay rule and just throw it over to them. They’ve got the more critical petition to modify custody. So it is incumbent upon them to figure a way to give the Court evidence to modify custody and all that [Ex parte] McLendon[, 455 So.2d 863 (Ala.1984),] requires. I’m not going to just say, fine, you know, we will just ignore hearsay and have at it.”

Thereafter, the trial judge requested that the parties “figure it out,” but he stated that he would “follow the law” and he advised the parties to “[u]se the rules to your best advantage.”

Before Segall began her testimony, the mother renewed her motion to exclude Se-gall as an expert witness; the trial court denied the motion. The following discussion ensued:

“[FATHER’S COUNSEL]: I’ve got one issue to raise, your Honor. We’re going to ask that [Segall] testify as to what the child said under Rule 803(4) of the Alabama Rules of Evidence.... Under that exception, ... we think that we can admit the child’s statements made to Mrs. Segall because it was done in the process of diagnosis or treatment. That’s under 803(4).
“COURT: Mrs. Segall, were statements made to you by the child during your diagnosis of the child or your treatment of the child?
“[SEGALL]: Yes.
“[MOTHER’S COUNSEL]: Your Honor, we object. We don’t believe that the rule covers that. It covers presence, impression under 803 with regard to specific treatment, bodily conditions, that sort of thing. An ongoing statement in treatment, this is another end around the basic hearsay rule.”

After further discussion regarding the mother’s objection to Segall’s testimony, the trial court stated: “Your record is made. Overruled. She will be allowed to testify to that. She was appointed by the Court. Standing objection noted.”

Soon after Segall began her testimony at the portion of the trial conducted in April 2001, the following discussion occurred:

“[FATHER’S COUNSEL]: Did you get any prior history of [the child] from anyone?
“[SEGALL]: I know I talked to the guardian. I can’t remember. It’s been a year and four months. It’s been sixteen months since I spoke to [the guardian ad litem] about this. To the best of my recollection, [the guardian ad litem] told me—
“[MOTHER’S COUNSEL]: Your honor, I object on whatever [the guardian ad litem] told her. I mean, we’re going way far afield on this — Let me go ahead and issue a standing objection. I may have to do it every time just to be sure that the record is clear on it. As far as her talking to any other person, [the child], school teachers, the guardian ad litem, anyone, I object. It is hearsay. It is inadmissible.
“[FATHER’S COUNSEL]: Did you have a question—
“[MOTHER’S COUNSEL]: I need a ruling.
“THE COURT: Overruled. You got your ruling. If that is going to be your motion, it will be the same ruling. It’s a standard ruling. Go ahead.
“[FATHER’S COUNSEL]: To save time, we will stipulate that she is going to do it.
“THE COURT: She wants to make sure the record is complete. Go ahead.”

After this exchange, the father’s direct examination of Segall continued. Segall’s testimony, in large part, consisted of a narrated reading from her notes regarding her counseling sessions with the child. The mother objected to Segall’s reading from her notes; the objection was overruled. After the mother again objected to SegaJl’s testimony concerning “statements and determinations from statements [Se-gall] says that [the child] has made,” the trial court stated:

“Overruled. Now, I understand you want to create a record and be very clear on the record. There is a line between being clear, representing your client and being almost disruptive. Your standing objection to Mrs. Segall’s testimony is noted. Thank you.”

At the close of the proceedings in April 2001, the father’s direct examination of Segall was continued until a later date. The trial court entered an order on the case action summary sheet that stated, in part, “[g]ag Order insofar as Sandra Se-gall’s notes and deposition to be submitted to expert to be named by [the mother].... Counseling exclusively by Sandra Segall to continue.” The trial court also entered an order permitting all parties to obtain copies of Segall’s counseling records and memoranda regarding her sessions with the child and from her “conversations with any person relative to [the child].”

Segall was unable to resume her testimony at the portion of the trial conducted in June 2001 because she was ill. The father’s direct examination of Segall resumed at the trial proceedings held in July 2001. At the beginning of Segall’s testimony presented at the July 2001 proceedings, counsel for the father stated:

“I think we’re dealing with Mrs. Se-gall, [your notes from] February 28th of 2001. I think that is about where we left off.
“Your Honor, I’m going to speed this up. I’m going to introduce with no objection from the other counsel the whole set of the records, her whole notes, then I can start speeding this up.”

Segall then resumed her testimony, narrating from her notes and answering additional questions. However, soon after testimony resumed, counsel for the mother stated: “Your Honor, I had a continuing objection to the hearsay. I assume that that follows over to each installment.” The trial court responded: “Thank you. Go ahead.” After the father finished examining Segall as to her notes from her counseling sessions with the child, the notes were admitted into evidence.

The trial proceedings were concluded in April 2002. After the trial, by agreement of the parties, the mother deposed Ray Little, an alleged expert in the standards of practice for licensed professional counselors. On July 16, 2002, after receiving Little’s deposition testimony, the trial court entered a judgment awarding the father custody of the child. The judgment stated, in part:

“1. The Court appointed Sandra Se-gall to be the [licensed professional counselor] for the parties’ minor child and to make a report and recommendations to this Court, only. Mrs. Segall made a recommendation to this Court and the same is taken along with all the other evidence and testimony received in this matter.
“3. The Court finds that the best interest of the child would be served with the primary residence of the minor child being placed with the father and the Court finds that any disruptive effect of the change in the residence will be outweighed by the benefit to the child. Therefore the primary residence of the parties’ child ... is changed to the father, subject to the visitation as set out herein to the mother.”

The mother was awarded standard visitation and was ordered to pay child support. The mother filed a postjudgment motion; the motion was denied. The mother appeals.

The mother contends that the trial court erred by admitting Segall’s testimony because, she says, Segall was not an expert in the forensic evaluation of child sexual abuse. The mother also contends that the trial court erred by admitting Segall’s testimony because it was based on hearsay statements. Further, the mother argues that the trial court erred by awarding custody of the child to the father because, she says, the father failed to meet his burden of proof under Ex parte McLendon, 455 So.2d 863 (Ala.1984).

In regard to Segall’s qualification as an expert, Rule 702, Ala. R. Evid., states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

“The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed on appeal except for abuse.” Hagler v. Gilliland, 292 Ala. 262, 264, 292 So.2d 647, 648 (1974).

“[Wjhere a witness has sufficient ‘knowledge, skill, experience, or training ... that his opinion will be considered in reason as giving the trier of fact light upon the question to be determined’ it should be admitted as expert testimony.... [A]n objection to testimony of a competent expert based on the witness’s lack of knowledge goes to the weight of the evidence and not its admissibility.”

Tidwell v. Upjohn Co., 626 So.2d 1297, 1300 (Ala.1993) (quoting Ellingwood v. Stevens, 564 So.2d 932, 936 (Ala.1990)).

In the mother’s brief on appeal, she argues at length that Segall was not qualified to perform a forensic evaluation of the child. The father takes the position, however, that the court’s appointment of Se-gall was not specifically directed toward a forensic evaluation of the child.

In point of fact, Segall testified that, because of the number of “experts” who had examined the child before she had an opportunity to interview the child, she could not determine whether the child had been sexually abused or, if the child had been abused, who the perpetrator might have been.

Although Segall had performed forensic evaluations of children in the past, the father did not call her to testify as an expert in forensic evaluation. Instead, the father called Segall to testify as a licensed professional counselor. Specifically, he requested that Segall discuss her 59 eounsel-ing sessions with the child conducted after November 1999, that Segall testify as to the behavioral problems that she had observed and diagnosed in the child, that Segall relate the results of her attempts to treat the child, and that Segall provide the trial court with a recommendation as to custody.

Segall testified that she was a licensed professional counselor and that she had a bachelor’s degree in psychology and a master’s degree in general psychology. She also testified that she had been in counseling practice for approximately 27 years; her counseling experience included serving in various psychology internships, serving as a staff psychologist at the Montgomery Area Mental Health Authority for 3 years, and counseling in private practice since 1985. Segall stated that during her employment at the Montgomery Area Mental Health Authority her patients had primarily been persons who were sexually, physically, or emotionally abused or neglected. She stated that she had presented workshops on child sexual abuse, that she had testified as an expert in sexual-abuse cases “hundred[s] of times,” and that she had received additional training pertaining to child-abuse and sexual-abuse cases through a psychiatrist in Atlanta and a child-advocacy group in Alabama. She testified that in the early 1990s she had served as a forensic evaluator but that she no longer performed forensic evaluations. Segall testified that approximately 50% of her clients were children.

A further review of Segall’s qualifications as a licensed professional counselor is unnecessary. We cannot conclude that the trial court abused its discretion by determining that Segall was qualified to testify as an expert in this case as to those issues for which her testimony was offered by the father. The mother’s objection “goes to the weight of [Segall’s testimony] and not its admissibility.” Tidwell, 626 So.2d at 1300.

The mother next contends that the trial court erred by allowing Segall to offer her opinions as an expert because her opinions were based on inadmissible hearsay statements of the child; the father and the trial court relied on the hearsay exception provided in Rule 803(4), Ala. R. Evid., as the basis for introducing and admitting the hearsay statements made by the child.

Rule 803, Ala. R. Evid., states, in pertinent part:

“The following are not excluded by the hearsay rule, even though the de-clarant is available as a witness:
“(4).... Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

(Emphasis added.) As the Court of Criminal Appeals stated in Biles v. State, 715 So.2d 878 (Ala.Crim.App.1997):

“In determining whether a statement comes within this hearsay exception, courts have applied a ‘two-pronged test.’ The first prong ‘is the requirement that the statement must be one upon which medical personnel reasonably rely in diagnosis and treatment. The second prong consists of a requirement that the declarant possess a motive which is consistent with the rule’s underlying purpose ... [of] seeking diagnosis or treatment.’ ”

Biles, 715 So.2d at 887 (quoting Charles W. Gamble, McElroy’s Alabama Evidence § 261.02(4) (5th ed.1996)) (emphasis added).

We need not address the issue of whether a child’s statements made to persons other than a physician might, under appropriate circumstances, fall within the Rule 803(4) exception if those statements are made as part of the necessary process of medical diagnosis or treatment. See Advisory Committee’s Notes, Rule 803, Ala. R. Evid.; see generally State v. J.C.E., 235 Mont. 264, 271, 767 P.2d 309, 314 (1988) (“[T]he rationale behind the medical treatment exception is less forceful where a very young child is concerned. The child might not comprehend the necessity of telling a doctor the truth in order to aid diagnosis and treatment.”). That is not the situation presented here. In other words, in the present case, the child’s statements to Segall were not made for the purpose of “medical diagnosis or treatment.” Instead, they were made so that Segall, who was not a medical practitioner, could assess the child’s behavioral problems and make a recommendation to the trial court as to custody. We note that other courts have declined to extend the Rule 803(4) exception to hearsay statements made by children under similar facts. See, e.g., State v. J.C.E., 235 Mont, at 271, 767 P.2d at 314 (Refusing to extend the Rule 803(4) hearsay exception to a child’s statements made to a counselor who was not licensed to render a medical diagnosis. “Stuart is not licensed to render medical diagnoses, and therefore cannot testify about such diagnoses under this exception.”); see also State v. Barone, 852 S.W.2d 216, 220 (Tenn.1993) (“While some jurisdictions have admitted the out-of-court statements of victims of child sexual abuse through the testimony of examining psychologists, ... the better-reasoned rule is that such statements do not satisfy the rationale and purpose for the [hearsay] exception.” (Footnote omitted.)). But see State v. Pettrey, 209 W.Va. 449, 460, 549 S.E.2d 323, 334 (2001) (“[W]hen a social worker, counselor, or psychologist is trained in play therapy and thereafter treats a child abuse victim with play therapy, the therapist’s testimony is admissible at trial under the medical diagnosis or treatment exception to the hearsay rule ... if the declarant’s motive in making the statement is consistent with the purposes of promoting treatment and the content of the statement is reasonably relied upon by the therapist for treatment.”). See also State v. Hinnant, 351 N.C. 277, 289, 523 S.E.2d 663, 670-71 (2000) (Discussing the common-law rationale underlying Rule 803(4) and the difficulty of applying the rule in cases involving young children. The court held that “hearsay evidence is admissible under Rule 803(4) only when two inquiries are satisfied. First, the trial court must determine that the declarant intended to make the statements at issue in order to obtain medical diagnosis or treatment. The trial court may consider all objective circumstances of record in determining whether the declarant possessed the requisite intent. Second, the trial court must determine that the declar-ant’s statements were reasonably pertinent to medical diagnosis or treatment.”). We likewise decline to extend Rule 803(4) in the present case.

The child did not testify in this case. Segall testified at length as to the child’s statements to her in counseling sessions, statements that were introduced for the truth of the matter asserted therein and therefore were inadmissible. Further, Se-gall was erroneously allowed to testify as to opinions she had formed based in part on the truth of many of the child’s out-of-court assertions. Those opinions included opinions that the child had been underso-cialized; that the child had been inconsistently disciplined by the mother; that the child suffered from oppositional defiant disorder; and that the child had been adversely effected by the alleged “hypervigi-lance” of her mother and the maternal grandmother, who was the child’s primary caregiver.

When the trial court has overruled an objection to inadmissible evidence, “we must assume on appeal that such evidence was considered by the trial court.” St. Paul Fire & Marine Ins. Co. v. Johnson, 256 Ala. 690, 692, 57 So.2d 80, 82 (1951). Accordingly, the trial court’s judgment awarding custody to the father is reversed, and the cause is remanded for a new trial.

In light of our decision that the trial court erred by admitting inadmissible hearsay, and in light of the conflict in the remaining evidence, we need not address whether the father failed to meet his burden of proof under Ex parte McLendon, 455 So.2d 863.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.

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

      . A grand-jury proceeding was instituted as a result of the child's sexual-abuse allegations against the paternal grandfather.. However, no indictment was issued by the grand jury.

      . Soon after the mother" filed her petition to modify the father’s visitation rights, the Department of Human Resources obtained emergency custody of the child based on proceedings held in the Autauga Juvenile Court arising out of the child's allegations against the mother's fiancé. The child was placed in the care of foster parents for a few days. After holding a shelter-care hearing, the Au-tauga Juvenile Court returned the child to the custody of the mother in September 1999.

      . The voluminous record of this protracted custody battle includes numerous pleadings and procedural developments that are not pertinent to our resolution of this case, including, for example, petitions to intervene and motions to allow visitation filed by the child's maternal and paternal grandparents and a petition filed by the mother’s fiancé regarding restrictions as to his presence around the child. The maternal and paternal grandparents were allowed visitation pending a final hearing, but neither set of grandparents was awarded visitation with the child in the final judgment. The petition filed by the mother’s fiancé was granted, and a pendente lite order was entered allowing him to be present around the child but prohibiting him from having any “individual, unsupervised, and/or unchaperoned contact with the child.”

      . See Rule 801(c), Ala. R. Evid., defining hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Emphasis added.)

      . The mother has not argued that the trial court erred by restricting to whom she could take the child for counseling.

      . In his appellate brief, the father has argued that the mother waived any objection to the hearsay statements testified to by Segall because, he says, Segall’s counseling notes were entered into evidence without objection. As noted above, Segall’s testimony consisted largely of a narration and review of her counseling notes. The father’s introduction into evidence of those notes was simply a matter of form to, as the father’s counsel stated at trial, "speed up” the proceedings. In light of the mother's repeated standing objection to the introduction into evidence of any hearsay statements testified to by Segall, and in light of the reminder by counsel for the mother to the court of that objection between the time the notes were offered and the time they were admitted into evidence, we cannot conclude that the mother waived her objection to the admission of hearsay statements testified to by Segall. The statement by counsel for the father — “I'm going to introduce with no objection from the other counsel the whole set of the records, her whole notes, then I can start speeding this up” — can only be read in all fairness, based on the mother's repeated objections in the record before us and the context in which the statement was made, as a reference to the fact that, because the court had apparently decided to allow the admission of the hearsay statements over the mother's objections, the mother did not specifically object to those same hearsay statements coming into evidence in written form rather than being spoken into the record. See generally National Cas. Co. v. Dunn, 209 Ala. 484, 485, 96 So. 576, 577 (1923) (opinion on rehearing) (“[I]t was not necessary for counsel to repeat his objection and the ground for it, every time an additional question to elicit the same illegal testimony was propounded to the witness.” "The bill of exceptions shows a running colloquy which, as above stated, was logically and actually a single proposition — to elicit hearsay testimony of agency on the one side, and to exclude it, because it was not made admissible by proof of agency, on the other.”); In re Powers, 523 So.2d 1079, 1082 (Ala.Civ.App.1988) ("[W]here the trial court indicates a continuing adverse ruling and grants to an attorney a continuous objection, which contains all grounds which he has previously interposed to the lead questions, the attorney is thereby relieved from making a formal objection after each future question concerning the same general train of factual material and, thereafter, the attorney can properly raise on appeal the propriety of the adverse ruling upon his specific 'continuing objections’ to those questions.”).

      . The mother also argues that Segall should not have been permitted to testify because, she says, Segall "retracted” her deposition testimony. However, we have reviewed the record and conclude that the mother's argument on this issue is without merit.

      . Based on Segall’s testimony, "[fjorensic evaluation is the determination as to whether or not a child's testimony or interviews are consistent with child sex abuse.”

      . By the time Segall was appointed by the trial court, see Rule 706, Ala. R. Evid., the child had already been examined several times by a physician, by an investigator from DHR, and by a counselor retained by the mother. The physician had concluded that it was very likely that the child had been sexually abused; as a result of that diagnosis, a criminal investigation of the paternal grandfather had been instituted. Further, the counselor that had been retained by the mother had interviewed the child on six occasions regarding the alleged sexual abuse.

      . Segall also expressed her concern that, based on statements the child had made to her, the child might have been "coached” as to the sexual-abuse allegations.

      . At trial and on appeal, both parties treat the out-of-court statements of the child, as testified to by Segall, as hearsay; that is, the parties treat the child’s out-of-court statements as having been introduced at trial, and as having been relied upon by Segall, directly for the truth of the facts asserted therein. See Rule 801(c), Ala. R. Evid. (defining hearsay as an out-of-court statement offered "to prove the truth of the matter asserted”). Compare Ex parte McAllister, 541 So.2d 1104 (Ala.1989) (likewise holding that an expert could not testify to or base her opinion upon facts told to her by a child where the expert did not have firsthand knowledge of those facts and those facts were not proven by other, competent evidence). The issue before us is whether Rule 803(4) provides an exception to the hearsay rule that would allow the use of the child’s out-of-court statements for this purpose. We do not have before us the different question whether the fact that a child makes a given statement (which, unlike the truth of the facts asserted in such a statement, is something of which an expert does have firsthand knowledge) could appropriately be considered by a trial court, or be utilized by an expert, for a purpose other than directly establishing the truth of the fact asserted in that statement, e.g., for the purpose of demonstrating the child's awareness or knowledge of certain subject matter. Nor is any exception to the rule against hearsay, other than Rule 803(4), at issue here. See generally Rules 803 and 804, Ala. R. Evid.


text:
    ALFA LIFE INSURANCE CORPORATION v. Ralph BONNER, as administrator of the estate of Alice Coan, deceased. Ralph Bonner, as administrator of the estate of Alice Coan, deceased v. Alfa Life Insurance Corporation.
    2030948.
    Court of Civil Appeals of Alabama.
    Oct. 28, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1050217.

      M. Christian King, Stephen J. Rowe, and Ivan B. Cooper of Lightfoot Franklin & White, L.L.C., Birmingham, for appellant/cross-appellee Alfa Life Insurance Corporation.
    Jeffrey McLaughlin and Rodney Edmondson of McLaughlin & Edmondson, LLC, Guntersville, for appellee/cross-ap-pellant Ralph Bonner, as administrator of the estate of Alice Coan, deceased.
   MURDOCK, Judge.

Alice Coan and Theron Coan were married. They separated in December 1997. During a domestic dispute in January 1998, Theron killed Alice; approximately three hours later, Theron killed himself.

At the time of his death, Theron was an insured under a life insurance policy issued by Alfa Life Insurance Corporation. Alfa issued the policy to Theron, as owner, in 1986. The policy had a death benefit of $25,000. The primary beneficiary of the policy, provided she survived Theron, was Alice. Greg Coan, who is the son of Theron, but not of Alice, was designated in the policy as the party to receive the proceeds of the policy in the event Alice predeceased Theron.

In February 1998, Greg filed a claim form with Alfa demanding payment of the death benefit for the policy on Theron’s life. Alfa paid the death benefit, plus accrued interest, to Greg. There is no allegation or evidence indicating that Greg was involved in the death of Alice or in the death of Theron.

In December 1999, Ralph Bonner, as administrator of the estate of Alice, filed a complaint against Alfa in the Marshall Circuit Court. (Bonner is the son of Alice, but not of Theron.) The complaint was subsequently amended. In the complaint, as amended, Bonner alleged that Alabama’s “Slayer’s Statute,” § 43-8-253, Ala. Code 1975, operated to entitle Alice’s estate to the death benefit under the insurance policy on Theron’s life. The amended complaint alleged that Alfa therefore had breached the terms of the alleged “insurance contract” with Alice by not paying the death benefit to her estate. Bonner also alleged that Alice was an owner of the policy on Theron’s life “by virtue of the fact that she paid the premiums, in whole or in part, on [the] policy” and that Theron was the “beneficiary” of the policy on his life because “he had the right to borrow against the cash value of the policy” as well as “other options and rights.” Bonner requested that the circuit court award damages against Alfa based on the theories of breach of contract; negligent, wanton, or wilful payment in violation of the terms of the policy and applicable law; and bad-faith refusal to pay the death benefit to Alice’s estate.

In November 2003, Alfa filed a motion for a summary judgment. In the motion, Alfa argued that the Slayer’s Statute was inapplicable, that it had payed the death benefit to Greg as required by its insurance contract, and that it was entitled to a summary judgment as to all of Bonner’s claims.

In March 2004, the circuit court granted Alfa’s motion for a summary judgment as to all of Bonner’s claims except his breach-of-contract claim. Thereafter, Bonner filed a motion requesting that the circuit court reconsider its ruling as to the partial summary judgment in favor of Alfa, and he filed a motion requesting that the circuit court enter a summary judgment in his favor as to the breach-of-contract claim.

In June 2004, after concluding that no genuine issue of material fact existed, which the parties do not dispute, the circuit court entered an order denying Bonner’s motion to reconsider its ruling as to the partial summary judgment in favor of Alfa, but granting Bonner’s motion for a summary judgment as to Alfa’s alleged breach of contract. In part, the order states:

“Under the facts of this case, Alabama’s Slayer Statute, § 43-8-253, [Ala.Code 1975,] applies. This Court finds that the wording of the statute, as written, covers the facts of this rare situation due to the fact that Alice Coan had an ownership interest in [the policy on Theron’s life] and/or was an insured by virtue of the application itself and the simultaneous purchase of [the policy on Alice’s life and the policy on Theron’s life]. However, even if the wording of the Slayer Statute must be strained to apply in this case, the principal behind it is clear: a killer should not be allowed to benefit from his own wrongdoing. The Official Commentary to the Slayer Statute, passed in 1982, notes that this statute is intended to be a codification of, not in derogation of, the long-standing common law rule.... As such, this Court should give a broad application to the terms of the statute to effectuate its purpose.... And finally, should the statute itself be determined not to apply to the precise situation presented by this case, then the common law principle applies to this case, with the effect that Theron Coan must be considered to have predeceased Alice Coan.”

Alfa appeals. Bonner cross-appeals.

Based on the undisputed facts and the arguments that have been presented on appeal, this court’s standard of review is de novo; no presumption of correctness inures in favor of the circuit court’s judgment. Ex parte Graham, 702 So.2d 1215 (Ala.1997); Roberts Health Care, Inc. v. State Health Planning & Dev. Agency, 698 So.2d 106 (Ala.1997).

The Slayer’s Statute, Ala.Code 1975, § 43-8-253, which was enacted by our Legislature in 1982, and which essentially adopted § 2-803 of the Uniform Probate Code, states, in part:

“(a) A surviving spouse, heir or devi-see who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under articles 3 through 10 of this chapter, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
“(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
“(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section.”

See generally Weaver v. Hollis, 247 Ala. 57, 59, 22 So.2d 525, 527 (1945) (“A reasonable interpretation of [the statute providing for a husband to inherit property from his deceased wife], in the light of the common-law principle that no person can take advantage of his own wrong; that the law permits no one to profit by his own crime, precludes a felonious killer from taking from his murdered spouse.”); Protective Life Ins. Co. v. Linson, 245 Ala. 493, 17 So.2d 761 (1944) (discussing the application of the common-law principle where the beneficiary feloniously killed the insured).

In DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala. 1998), our Supreme Court explained the process of statutory construction:

“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).... It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).”

(Emphasis added.)

After carefully considering the language of the Slayer’s Statute, we conclude that the circuit court erred by applying it to the present case. First, subsection (a) of the Slayer’s Statute prevents the party who intentionally kills a decedent from receiving “any benefits under the will or under articles 3 through 10 of’ the Probate Code, that is, from “the estate of the decedent.” In this case, the benefits payable under the insurance policy were received by Greg, not by Theron, the killer. The recovery by Greg of benefits under the insurance policy will not result in Theron receiving any benefit from the estate of the decedent, Alice.

Secondly, subsection (c) of the statute only prevents recovery of insurance proceeds by a named beneficiary of the policy who kills the principal obligee or the person on whose life the policy is issued. Again, Greg is the party who received the proceeds payable under the policy at issue. Greg did not kill anyone.

Finally, subsection (d) of the statute addresses “other aequisition[s] of property or interest by the killer.” Again, Theron acquired no property or interest as a result of his killing Alice.

The parties have cited no Alabama precedent applying the principle that a person cannot benefit from his own wrong to facts such as those presented in the present case. Cases from other jurisdictions, however, support our conclusion that Alabama’s Slayer’s Statute is not applicable here. See, e.g., Belt v. Baser, 238 Ark. 644, 383 S.W.2d 657 (1964); Chatman v. Currie, 606 So.2d 454, 456 (Fla.Dist.Ct. App.1992) (applying a Florida statute that is identical to Alabama’s Slayer’s Statute and concluding that “the general rule that a person cannot be permitted to profit from a wrongful act is inapplicable where the wrongdoer stands to gain nothing by his act, as where he kills himself soon after committing the wrongful act”); Union Cent. Life Ins. Co. v. Elizabeth Trust Co., 119 N.J.Eq. 505, 513, 183 A. 181, 185 (N.J.Ch.1936) (“[T]he insured did not gain by his wrongful act. Until he died the policies were not payable and the rights of his administrators came into being only on his death without relation to the death of the beneficiary. No benefit inured to him by the taking of the life of the beneficiary because he had a right under the terms of the policy to change the beneficiary at will. To say that the object of the murder was to accomplish what could be accomplished by the mere scratch of a pen carries its own refutation and leads to the conclusion that profit via the policy was not the object of the crime. The reason for the application of the rule failing, the rule cannot be invoked.”); Gardner v. Nationwide Life Ins. Co., 22 N.C.App. 404, 409, 206 S.E.2d 818, 821 (1974) (holding, in the context of a statute worded differently than Alabama’s Slayer’s Statute, that the principle that a “murderer himself will not profit by his own wrongdoing ... does not extend to those related to the slayer, when, as here, they are named in the insurance contract as alternative beneficiaries”); see also In re Pinnock’s Estate, 83 Misc.2d 233, 371 N.Y.S.2d 797 (N.Y.Sur.Ct.1975); cf. Longenberger v. Prudential Ins. Co. of America, 121 Pa.Super. 225, 228, 183 A. 422, 424 (1936) (stating, in the context of an insurer’s argument that the insured’s killing of a beneficiary voided the insurance policy: “ ‘To conclude that the insured killed his ■wife in order to do what he could have accomplished by notifying the company of his desire to change the beneficiary is too absurd to require any discussion. And a denial of liability on the ground of public policy, based on such a premise, as respects a contract of insurance on his own life, is carrying the doctrine far beyond its limits as recognized in this state. The killing of the wife initiated no claim whatever upon the policy on the husband’s life; it was his suicide which made the policy payable.’ ” (quoting Allegheny Trust Co. v. State Life Ins. Co., 110 Pa.Super. 37, 44, 167 A. 251, 253 (1933))).

Based on the foregoing, we conclude that the circuit court erred when it entered the summary judgment in favor of Bonner and against Alfa as to Bonner’s breach-of-contract claim but that it did not err when it entered the summary judgment in favor of Alfa and against Bonner as to Bonner’s other claims. Accordingly, we remand this cause to the circuit court for the entry of a judgment consistent with this opinion.

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — AFFIRMED.

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

      .The 1986 policy “replaced” two life insurance policies on the life of Theron that were issued to Alice, as owner, in 1982 and 1984, respectively. The insurance application forms for the 1982, 1984, and 1986 policies each contain a separate section to be completed if the owner of the policy is not the proposed insured. Although the owner-other-than-proposed-insured section of the policy application was completed in the name of Alice, as owner, for the 1982 policy and the 1984 policy, the section is blank in the 1986 policy application. Thus, as the 1986 policy itself reflects, the 1986 policy was issued to Theron, as owner. Likewise, although both Theron and Alice executed the 1982 and 1984 policy applications, as proposed insured and owner, respectively, only Theron executed the application for the 1986 policy.

      . At the time of Alice's death, she was also the owner of and the insured under a life insurance policy issued by Alfa in 1986. The policy on Alice's life was issued at approximately the same time as the policy on Theron’s life, and it also had a death benefit of $25,000. Initially, Theron was the primary beneficiary of the policy on Alice’s life. However, Alice changed the beneficiary designation on her policy when the parties separated in December 1997. The death benefit from the policy on Alice’s life was paid to Alice's estate.

      . Bonner alleged, and argues, that the insurance policy at issue and the insurance policy on Alice's life, see note 2, supra, must be construed as "one set” and, thus, as one contract. The provisions of neither insurance policy supports Bonner's argument, and he has cited no legal authority to support his argument.

      . It is undisputed that in conjunction with their insurance policy applications Theron and Alice authorized the payment of the premiums for their respective life insurance policies from their joint checking account and that the premiums were in fact paid from their joint checking account.

      . Even if the receipt of property by Theron’s estate could be deemed a benefit to Theron (a proposition that we are not called upon to, and that we do not, adopt), Greg received the property (i.e., the insurance policy proceeds) in his capacity not as an heir of Theron's estate, but in his capacity as a designated beneficiary under an insurance policy with a third party. Indeed, if passage of property to Theron's estate were deemed to constitute an "acquisition of property or interest” by Theron, or a "benefit” to him, Alice likewise would not be entitled to receive those benefits as an heir of Theron's estate. Nor could she receive those benefits in her capacity as a named beneficiary under the insurance policy due to the fact that a condition for her recovery of those benefits, her survival of Theron, was not satisfied.

      . Even if the Slayer’s Statute were somehow deemed applicable to the present case so as to prevent Greg from receiving the insurance proceeds at issue, this fact would not entitle Alice to receive those benefits. Any right to recovery under the insurance policy that Alice might have would be a function of that insurance policy, itself. The policy expressly conditions her receipt of benefits on her surviving Theron, a condition that was not met.