author: SEE, Justice.

text:
    WATER WORKS & SANITARY SEWER BOARD OF the CITY OF MONTGOMERY v. Thelma PARKS et al. East Montgomery Water, Sewer & Fire Protection Authority v. Thelma Parks et al.
    1051376 and 1051408.
    Supreme Court of Alabama.
    May 11, 2007.
    As Modified on Denial of Rehearing Applications July 13, 2007.

      Robert E. Sasser, Patrick L.W. Sefton, Matthew J. Bauer, and Joel D. Connally of Sasser, Bolton & Sefton, P.C., Montgomery, for appellant Water Works & Sanitary Sewer Board of the City of Montgomery.
    Karl B. Benkwith of Benkwith & Heard, P.C., Montgomery, for appellant East Montgomery Water, Sewer & Fire Protection Authority.
    J. Knox Argo, Montgomery, for appel-lees.
   SEE, Justice.

The Water Works & Sanitary Sewer Board of the City of Montgomery (“the Board”) and the East Montgomery Water, Sewer & Fire Protection Authority (“East Montgomery”) appeal separately from the trial court’s judgment declaring Thelma Parks, Mary E. Jones, Mary A. Jones, Ruth J. Morgan, and Dorothy Jones (“the Jones heirs”) to be the true owners of certain property in Montgomery County. The Board and East Montgomery argue that the trial court misapplied the law of adverse possession and that the evidence demonstrates that they, through their predecessor in interest, satisfied the elements of adverse possession or, in the alternative, if they are not the owners of the property, that they are entitled to equitable relief for the value of the improvements they made to the land. We agree that the trial court incorrectly applied the law of adverse possession. We, therefore, reverse the trial court’s judgment and remand the case for proceedings consistent with this opinion.

Factual and Procedural History

In 1939, John Green conveyed property by deed to Dock Barnett. Dock Barnett deeded a portion of that property to Silas Jones. In 1978, John Green also conveyed property by deed to his son, James Green. That conveyance included a portion of the property that had been conveyed previously to Barnett and through Barnett to Jones. The portion of property that John Green conveyed first to Barnett and then again to James Green is the subject matter of this dispute; it is referred to in this opinion as “the subject property.”

In 1968, Silas Jones died intestate and his property, including the subject property, passed to the Jones heirs by intestate succession. In 1987, James Green conveyed his property, including the subject property, by deed to Paul Thomas, who began developing the Cedar Pines subdivision. The subject property is situated between property to the east that was undis-putedly owned by James Green (“the Green property”) and property to the west undisputedly owned by Silas Jones (“the Jones property”).

In approximately 1988, Thomas began constructing Cedar Pines Road on the subject property, to provide the subdivision access to Old Pike Road. Before the construction of Cedar Pines Road, the only access to the subdivision from Old Pike Road was by means of a dirt road that wound through the subject property. Cedar Pines Road travels along the northern border of the Green property, through the subject property, and across a portion of the Jones property until it reaches Old Pike Road.

According to the testimony of Mary A. Jones, the Jones family knew that Thomas was constructing Cedar Pines Road, and the family objected to the construction. The family contacted a lawyer but took no further action because, according to Mary A. Jones, the family realized that Thomas had a right of access to and from his property. Because a part of Cedar Pines Road would cross through the Jones property, Thomas sought an easement over that part of the property. The Jones heirs refused to give Thomas an easement. Thomas then brought a condemnation action, seeking to condemn the part of the Jones property over which Cedar Pines Road would cross. The record does not indicate the outcome of that action, but Thomas finished the construction of Cedar Pines Road, a portion of which crosses the Jones property. Thomas also had waterlines put in on the subject property along the south side of Cedar Pines Road. He testified that both he and James Green, his predecessor in interest, had been assessed and had paid taxes on the subject property since 1978, when it was conveyed to James Green.

Cedar Pines Road 'divided the subject property into two parcels: Parcel A, which is a 2.5-acre, pie-shaped piece of property on the north side of Cedar Pines Road, and Parcel B, which is the portion of the subject property that lies south of Cedar Pines Road. In 1992, Thomas conveyed Parcel B to Paul Clark and Carolyn Clark. In 2001, Thomas conveyed Parcel A to East Montgomery.

Shortly after purchasing the property, East Montgomery began constructing a water tank on Parcel A. During the preparatory stages of construction, East Montgomery was informed that the Jones heirs claimed ownership of Parcel A. According to the testimony of Guthrie Jeffcoat, East Montgomery’s consulting engineer on the water-tank project, East Montgomery contacted its lawyer, who certified that East Montgomery had good title to Parcel A. East Montgomery built the water tank on Parcel A, over the objections of the Jones heirs.

In 2002, the Jones heirs sought a judgment against East Montgomery, the Clarks, and Montgomery County, declaring that the Jones heirs are the true owners of the subject property. Montgomery County, who the Jones heirs argued held an easement over a portion of the subject property, was eventually dismissed from the action. The Clarks and the Jones heirs eventually reached a mediated agreement as to the ownership of Parcel B. Thus, the dispute before the trial court was limited to the ownership of Parcel A. Before trial, the Board moved to intervene in the action, claiming that it was at that time in the process of purchasing all East Montgomery’s assets, including the property on which the water tank had been built. Through that purchase, the Board would also assume all East Montgomery’s responsibility for providing water and sewage services, including those services provided by the water tank on Parcel A. The trial court granted the Board’s motion to intervene.

The trial court heard ore tenus testimony and ultimately entered a judgment in favor of the Jones heirs, stating that the Board and East Montgomery had failed to establish by clear and convincing evidence that Thomas had adversely possessed Parcel A for the 10-year statutory period before he conveyed the property to East Montgomery. The trial court also denied “[a]ll other relief requested by any party not herein specifically addressed.” The Board and East Montgomery moved the trial court to alter, amend, or vacate its judgment or, in the alternative, for a new trial, on the ground that the trial court relied on facts that were not supported by the record. After a hearing, the trial court denied their motion. The Board and East Montgomery separately appealed the trial court’s judgment. Those appeals were consolidated for purposes of writing one opinion.

Issues

The Board and East Montgomery raise three issues on appeal. First, they argue that the trial court erred in its application of the law to the facts and relied on facts not supported by the record. Second, they argue that the trial court erred in finding that the Board and East Montgomery, through its predecessors in interest, did not adversely possess Parcel A. Third, they argue that, even if it did not err in determining that the Jones heirs owned the subject property, the trial court erred in denying the Board and East Montgomery’s plea for equitablé relief for improvements East Montgomery made to Parcel A.

Standard of Review

“‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala.2002). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Id.” Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005). “Under tke ore tenus standard, the judgment of the trial court may not be disturbed unless its findings are “ ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” ’ ” Fowler v. Johnson, 961 So.2d 122, 129 (Ala.2006) (quoting Pollard v. Unus Props., LLC, 902 So.2d 18, 23 (Ala.2004), quoting in turn American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997)).

Analysis

The Board and East Montgomery argue that the trial court erroneously applied the law to the facts of the case and relied on facts that were not supported by the record. They ask this Court to vacate the judgment of the, trial court holding that they do not own Parcel A. We agree that the trial court incorrectly applied the law of adverse possession to the facts of this case; therefore, we reverse its judgment and remand the case.

Alabama law recognizes two types of adverse possession: adverse possession by prescription and statutory adverse possession. A party claiming ownership by adverse possession by prescription must show that he or she had “actual, exclusive, open, notorious, and hostile possession under a claim of right for a 20-year period.” Strickland v. Markos, 566 So.2d 229, 232 (Ala.1990). Statutory adverse possession, codified at § 6-5-200, Ala.Code 1975,

“ ‘requires the same elements [as adverse possession by prescription], but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription.’ ”

Sparks v. Byrd, 562 So.2d 211, 214 (Ala.1990) (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980)).

The Board and East Montgomery claim that they, through Thomas, their predecessor in interest, acquired title to the property by statutory adverse possession. To prevail on this claim under § 6-5-200, the Board and East Montgomery must show (1) that Thomas held the property under color of title or paid taxes on the property for 10 years prior to the commencement of the declaratory-judgment action by the Jones heirs; and (2) that Thomas had actual, open, notorious, hostile, and exclusive possession of the property for at least 10 years before the commencement of the action. Sparks, 562 So.2d at 214. The Jones heirs concede that the Board holds, and East Montgomery and its predecessors in interest held, Parcel A under color of title. Therefore, the Board and East Montgomery have satisfied the first prong of the statutory-adverse-possession analysis, and the success of their-claim depends on whether Thomas, as their predecessor in interest, satisfied the second prong — i.e., that he had actual, open, notorious, hostile, 'and exclusive possession of the property for 10 years before the Jones heirs filed their action.

The trial court’s order analyzed the elements of adverse possession as they related to Thomas’s possessory acts as to Parcel A only, treating evidence of his possessory acts on other parts of the subject property as irrelevant to the question of his adverse possession of Parcel A. However, we have held that “one who adversely possesses a part of a tract of land and has color of title to the whole tract, gains possession of all the land provided no one else [is] in possession.” Long v. Ladd, 273 Ala. 410, 413, 142 So.2d 660, 662 (1962); see also Duke v. Harden, 259 Ala. 398, 400, 66 So.2d 899, 900 (1953) (“[T]he appellees and their predecessors in title were the holders of the legal title and their possessory acts over a part of the land described in their respective deeds is deemed in law as constructive possession of all of the land therein described not actually in the adverse possession of another .... ”); Neese v. Ellis, 253 Ala. 377, 379-80, 45 So.2d 19, 21 (1950) (“Adverse possession up to the ditch on the acre under color of title would give constructive possession of the entire acre.”)-

When James Green conveyed the subject property to Thomas, he conveyed it as an undivided whole, meaning that Thomas, like James Green, held color of title to the subject property in its entirety. Therefore, his possessory acts on Parcel B, if sufficient, could establish adverse possession of the entire subject property, including Parcel A. Thomas’s actions taken as to Parcel B were relevant to whether the Board and East Montgomery owned Parcel A and should have been considered by the trial court.

We hold that the trial court incorrectly applied the law to the facts by limiting its application of the elements of statutory adverse possession to Thomas’s possessory acts on Parcel A alone. Although we review de novo the issue of adverse possession, we do not reach the further question of whether the Board and East Montgomery owned Parcel A through Thomas’s adverse possession. The answer to that question requires us to address whether Thomas’s possessory acts on the entire subject property were sufficient to establish adverse possession of that property, and the trial court did not consider the evidence of Thomas’s possessory acts on any part of the subject property other than on Parcel A. Such “questions of adverse possession are questions of fact to be determined by the trial court,” and we have declined to reach such questions when the trial court has not addressed them first. Ratliff v. Giorlando, 343 So.2d 506, 508 (Ala.1977); see also Barnett v. Estate of Anderson, 966 So.2d 915, 920 (Ala.2007) (“We decline to review an issue ... that was not considered by the trial court.”). Therefore, we reverse the trial court’s judgment and remand the case for the trial court to determine whether Thomas adversely possessed the subject property in its entirety, including Parcel A, and, thus, passed title to the Board and East Montgomery as his successors in interest. Because the availability of equitable relief mil depend on the trial court’s determination of the adverse-possession issue, we do not address at this time the Board and East Montgomery’s argument that they are entitled to equitable relief related to the improvements they made on Parcel A.

Conclusion

The Board and East Montgomery claim ownership of Parcel A through Thomas’s adverse possession of the subject property, and Thomas held color of title to the subject property in its entirety during the relevant possessory period; therefore, the trial court should have examined Thomas’s possessory acts on the subject property as a whole. In failing to do so it misapplied the law to the facts. Therefore, we reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

1051376 — REVERSED AND REMANDED.

1051408 — REVERSED AND REMANDED.

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

      . Maiy A. Jones testified that after she realized that the water tank was being built on what she considered to be the Jones property, she contacted Jeffcoat and told him to stop building on the Jones property. Jeffcoat told Jones to telephone Eric Bowen, an attorney for East Montgomery, which she did. Bowen told her to telephone one of the other attorneys for East Montgomery, Jesse Williams, which she did. She also testified that she telephoned the county commission office, objecting to the construction on the water tank.

      . A party seeking to establish ownership by either adverse possession by prescription or statutory adverse possession "can ‘tack’ his period of possession onto that of a prior adverse claimant in order to establish a continuous stream of adverse possession for the required time span." Sparks, 562 So.2d at 216. Thus, if necessary, the Board and East Montgomery can establish title to the property by showing that before Thomas passed title to them either Thomas had adversely possessed the property for the requisite 10-year period, or Thomas and his predecessor in interest, James Green, had adversely possessed the property for the requisite 10-year period, or they can tack onto their own adverse possession, if any, Thomas's adverse possession in order to establish the requisite 10-year period.

      . The " 'ore terms rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or incorrect application of law to the facts.’ " Fadalla, 929 So.2d at 433 (quoting Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005)). Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005) (" ' " '[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ ” ’ Ex parte Jackson, 886 So.2d [155,] 159 [ (Ala.2004) ], quoting [State v.] Hill, 690 So.2d [1201,] 1203 [ (Ala.1996) ], quoting in turn, Ex parte Agee, 669 So.2d [102,] 104 [ (Ala.1995) ]. Thus, we review the trial court's conclusions of law and its application of law to the facts under the de novo standard of review.”).


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Elisa Simmons PINIGIS, as executrix of the estate of Doris Porter Coyle, deceased v. REGIONS BANK.
    1060474.
    Supreme Court of Alabama.
    July 6, 2007.

      John W. Haley, Bruce J. McKee, and S. Hughston Nichols of Hare, Wynn, Newell & Newton, L.L.P., Birmingham, for appellant.
    Laurence J. McDuff of Adams & Reese, LLP, Birmingham, for appellee.
   WOODALL, Justice.

Elisa Simmons Pinigis, as executrix of the estate of Doris Porter Coyle, deceased, appeals from a summary judgment for Regions Bank (“the Bank”) in her action against the Bank for its payment of allegedly unauthorized checks drawn on Coyle’s account. We affirm.

This is Pinigis’s second appeal from a summary judgment in favor of the Bank. See Pinigis v. Regions Bank, 942 So.2d 841 (Ala.2006) (“Pinigis I”). The facts underlying this dispute are fully developed in that ease and will not be repeated here. In Pinigis I, we reversed a partial summary judgment for the Bank, which had been granted on the ground that “the Bank “was not given any specific notification of the unauthorized signatures on checks until the instant lawsuit was filed ... almost nine months after the last unauthorized check was written.’ ” 942 So.2d at 844. Applying Ala.Code 1975, § 7-4-406(f), the trial court had held that “Pinigis could not ‘hold the [B]ank liable for checks paid by the [B]ank more than 180 days prior to discovery and reporting.’” 942 So.2d at 844. Section 7-4-406 provides:

“(a) A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount, and date of payment.
“(b) If the items are not returned to the customer, the person retaining the items shall either retain the items or, if the items are destroyed, maintain the capacity to furnish legible copies of the items until the expiration of seven years after receipt of the items. A customer may request an item from the bank that paid the item, and that bank must provide in a reasonable time either the item or, if the item has been destroyed or is not otherwise obtainable, a legible copy of the item.
“(c) If a bank sends or makes available a statement of account or items pursuant to subsection (a), the customer must exercise reasonable promptness in examining the statement or the items to determine whether any payment was not authorized because of an alteration of an item or because a purported signature by or on behalf of the customer was not authorized. If, based on the statement or items provided, the customer should reasonably have discovered the unauthorized payment, the customer must promptly notify the bank of the relevant facts.
“(d) If the bank proves that the customer failed, with respect to an item, to comply with the duties imposed on the customer by subsection (c), the customer is precluded from asserting against the bank:
“(1) The customer’s unauthorized signature or any alteration on the item, if the bank also proves that it suffered a loss by reason of the failure; and
“(2) The customer’s unauthorized signature or alteration by the same wrongdoer on any other item- paid in good faith by the bank if the payment was made before the bank received notice from the customer of the unauthorized signature or alteration and after the customer had been afforded a reasonable period of time, not exceeding 30 days, in which to examine the item or statement of account and notify the bank.
“(e) If subsection (d) applies and the customer proves that the bank failed to exercise ordinary care in paying the item and that the failure substantially contributed to loss, the loss is allocated between the customer precluded and the bank asserting the preclusion according to the extent to which the failure of the customer to comply with subsection (c) and the failure of the bank to exercise ordinary care contributed to the loss. If the customer proves that the bank did not pay the item in good faith, the preclusion under subsection (d) does not apply.
“(f). Without regard to care or lack of care of either the customer or the bank, a customer who does not within 180 days after the statement and the items or a legible copy or image of the items are sent to the customer, or within one year after the statement or items are otherwise made available to the customer (subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are sent or made available to the customer, discover and report any alteration on the back of the item or any unauthorized endorsement is precluded from asserting against the bank any such alteration or unauthorized endorsement. If there is a preclusion under this subsection, the payor bank may not recover for breach of warranty under Section 7-4-208 with respect to the unauthorized signature or alteration to which the preclusion applies.”

(Emphasis added.)

In her first appeal, Pinigis relied in part on the fact that the Bank, in its answer, had asserted that “ ‘[t]he plaintiffs claims are barred by the applicable statutes of limitations.’ 942 So.2d at 844. She objected to the Bank’s reliance on § 7-4-406(f) as a basis for a summary judgment, arguing that the notice provision in § 7-4-406(f) “is not a statute of limitations, but is, in fact, a statute of repose. 942 So.2d at 846. She contended that “ ‘[a] statute of repose, such as § 7 — 4—406(f), is an [affirmative defense],’ which the Bank was required to include in its answer, or it was waived.” 942 So.2d at 844. Thus, because the Bank had described its defense as a statute of limitations, rather than as a statute of repose, Pinigis argued, the Bank’s answer was insufficient to preserve a defense based on § 7-4-406(f). We agreed with Pinigis that in pleading a statute of limitations, the Bank had not pleaded a statute of repose, and we reversed the summary judgment on the sole ground that the Bank had waived reliance on Ala. Code 1975, § 7-4^406(f), by failing to plead it in its answer.

Following the release of our opinion in Pinigis I, the Bank was allowed to amend its answer and specifically to plead § 7-4-406(f) as an affirmative defense. It then renewed its summary-judgment motion, asserting, once again, that “the customer’s failure to notify the Bank in a timely fashion precludes recovery under Ala.Code § 7-4-406(f).” Again, the trial court granted the Bank’s motion, and Pinigis appeals.

In this appeal, Pinigis urges us to adopt a bad-faith exception to the notice requirement of § 7 — 4—406(f). She contends that ,a bank customer’s failure to satisfy the 180-day notice requirement in § 7-4-406(f) bars an action against the bank to recover funds paid over an “unauthorized signature or alteration” only if the bank paid the checks in good faith. In the words of Pinigis: “Pinigis claims that Regions Bank improperly paid about $250,000 in forged checks and that the loss should fall on the Bank. The Bank asserts the absolute rule of repose defense contained in Ala.Code § 7-4^106(f).” Pini-gis’s reply brief, at 1 (emphasis added).

“Ordinarily, this Court reviews a summary judgment de novo.” Verneuille v. Buchanan Lumber of Mobile, Inc., 914 So.2d 822, 824 (Ala.2005). In this case, our review is de novo for the additional reason that the dispositive issue is a pure question of law regarding statutory construction. Holsbrooks v. Stacy, 880 So.2d 708, 710 (Ala.2002). The question is one of first impression in Alabama, and, for that matter, in nearly every other state, which, like Alabama, has adopted some version of the Uniform Commercial Code, § 4-406, as revised in 1990: See generally A. Brooke Overby, Check Fraud in the Courts After the Revisions to U.C.C. Articles 3 and I, 57 Ala. L.Rev. 351, 351 (2005) (“Forty-eight state legislatures have enacted the 1990 versions of Articles 3 and 4.” (footnote omitted)). We begin where we left off in Pinigis I.

In Pinigis I, we explained that § 7-4-406(f) is variously regarded as a “statutory ‘non-claim provision,’ ” 942 So.2d at 847 (quoting Barkley Clark, The Law of Bank Deposits, Collections and Credit Cards ¶ 6.2[3][d], at S6-22 n. 62.2 (Supp.1987)), or a “ ‘statute[ ] of repose.’ ” Id. (quoting Brian Patrick Perryman, Note, Checking Checks: American Airlines Employees Federal Credit Union v. Martin and the Amenability of Common Law Waiver to Deposit Agreement Cutdown Provisions, 10 Géo. Mason L.Rev. 551, 594 n. 84 (2002)). “While equitable principles may extend the time for commencing an action ■ under statutes of limitation, non-claim statutes impose a condition precedent to the enforcement of a right of action and are not subject to equitable exceptions.” Estate of Decker v. Farm Credit Servs. of Mid-America, ACA, 684 N.E.2d 1137, 1139 (Ind.1997). Similarly, “statutes of repose, unlike statutes of limitations, are. not subject to equitable tolling, even under ‘compelling circumstances.'” Perryman, supra, at 594 n. 86 (quoting Siecinski v. First State Bank of E. Detroit, 209 Mich.App. 459, 464, 531 N.W.2d 768, 770 (1995)).

These authorities accurately describe the concept of a rule of repose in Alabama. The general 20-year rule of repose, for example, “is based solely upon the passage of time,” and is “ ‘not affected by the circumstances of the situation, by personal disabilities, or bi/ whether prejudice has resulted or evidence obscured,’ ” nor is it “based upon concepts of accrual, notice, or discovery.” Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 764 (Ala.2002) (quoting Boshell v. Keith, 418 So.2d 89, 91 (Ala.1982) (emphasis added in Ex parte Liberty Nat’l Life Ins. Co.)). The rule is an “absolute bar to unasserted claims.” Boshell, 418 So.2d at 92 (some emphasis added; some emphasis omitted). Similarly, we pointed out in Pinigis I that the rule of repose in § 7-4-406(f) is “ ‘absolute!],’” and that noncompliance “ ‘bar[s]’ ” actions to recover payments over ‘“unauthorized signatures or alterations.’ ” 942 So.2d at 847 (quoting the Alabama Comment to § 7-4-^106(f)) (emphasis in Pinigis I).

It is abundantly clear that subsection (f) contains no provision expressly excusing failure to notify a drawee bank of “unauthorized signatures or alterations,” comparable to those provisions in subsections (d)(2) and (e), because of the lack of good faith on the part of the bank. Instead, it says, in pertinent part:

“Without regard to care or lack of care of either the customer or the bank, a customer who does not within 180 days after the statement and the items or a legible copy or image of the items are sent to the customer ... discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.”

(Emphasis added.)

Pinigis concedes that the emphasized portions of this subsection render a bank’s negligence irrelevant after 180 days. She argues, however, that because subsection (f) does not also expressly make good faith irrelevant to recovery, it contains implicitly what subsections (d)(2) and (e) contain expressly, that is, a provision relieving dilatory customers of the consequences of failure to comply with the duty imposed in subsection (c) promptly to notify the bank of unauthorized payments, if those payments were not made by the bank in good faith. In other words, she argues that the legislature did not intend to include within the rule of repose of § 7-4-406(f) payments made by the bank in the absence of good faith. According to Pinigis, her argument is supported by legislative history, and she urges us to compare the current version of § 7-4^106 with an earlier version, especially in light of sections generally importing a duty of good faith into transactions governed by the Uniform Commercial Code (“UCC”). See Ala.Code 1975, § 7-1-304 (“Every contract or duty within this title imposes an obligation of good faith in its performance and enforcement.”); Ala.Code 1975, 7-4-103(a) (“The effect of the provisions of this article may be varied by agreement, but the parties to the agreement cannot disclaim a bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure.”).

We note that “[t]he intent of the Legislature is the polestar of statutory construction.” Siegelman v. Alabama Ass’n of School Bds., 819 So.2d 568, 579 (Ala.2001). See also Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996); Jones v. Conradi 673 So.2d 389, 394 (Ala.1995); Ex parte Jordan, 592 So.2d 579, 581 (Ala. 1992). “[T]he starting point for all statutory interpretation is the language of the statute itself,” and “[i]f the statutory language is clear, no further inquiry is appropriate.” Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir. 2000). “If the statutory language is ambiguous, however, courts may examine extrinsic materials, including legislative history, to determine [legislative] intent.” Id. It is also true that “[i]n attempting to ascertain the legislative intent of a particular statute or provision therein, it is permissible to look to the law as it existed prior to such statute’s enactment.” Reeder v. State ex rel. Myers, 294 Ala. 260, 265, 314 So.2d 853, 857 (1975). In that connection, “courts [also] consider contemporaneous events surrounding enactment of the statute.” Baylor v. New Jersey Dep’t of Human Servs., Div. of Pub. Welfare, 235 N.J.Super. 22, 41, 561 A.2d 618, 628 (1989), aff'd, 127 N.J. 286, 604 A.2d 110 (1990) (emphasis added). We cannot say that § 7-4^106 is clear on its face. However, the legislative history of the statute does not aid Pinigis.

The predecessor of § 7-4^106 was Alabama’s version of UCC § 4-406 as it existed prior to the revision of articles 3 and 4 of the UCC in 1990. Former § 7-4-406 provided, in pertinent part:

“(1) When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.
“(2) If the bank establishes that the customer failed with respect to an item to comply with the duties imposed on the customer by subsection (1) the customer is precluded from asserting against the bank:
“(a) His unauthorized signature or any alteration on the item if the bank also establishes that it suffered a loss by reason, of such failure; and
“(b) An unauthorized signature or alteration by the same wrongdoer on any other item paid in good faith by the bank after the first item and statement was available to the customer for a reasonable period not exceeding 14 calendar days and before the bank receives notification from the customer of any such unauthorized signature or alteration.
“(3) The preclusion under subsection (2) does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item(s).
“(4) Without regard to care of lack of care of either the customer or the bank (a) a customer who does not within 180 days from the time the statement and items- are made available to the customer (subsection (1)) discover and report his unauthorized signature or any alteration on the face of the item is precluded from asserting against the bank such unauthorized signature or alteration....”

(Emphasis added.)

Significantly, unlike current § 7-4-406, the former section contained a good-faith prefatory clause in the first subsection: “When a bank sends to its customer a statement of account accompanied by items paid in good faith ..., the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration ... and must notify the bank promptly after discovery thereof.” It was widely understood that by making good faith prefatory in the first subsection, the drafters of § 4-406 had unambiguously made good-faith payment a condition precedent to the notice requirements throughout the section, including subsection (4). For example, it was stated:

“If an unauthorized signature is not reported by the customer within one year from the time the statement and item are made available to the customer, § 4-406(4) precludes the customer from having the account recredited, irrespective of the bank’s own negligence in paying the item. However, § 4-4.06(1) imposes a general duty of notification on the customer only if the bank pays the item ‘in good faith. ’ Thus, if the customer can prove that the bank debited its account in bad faith, the one-year limit will not act as a bar.”

Clark, The Law of Bank Deposits, Collections and Credit Cards ¶ 8.02[4][d] (emphasis added). See also Appley v. West, 832 F.2d 1021, 1032 (7th Cir.1987) (allegation of bad faith prevented the application of § 4-406(4), because § 4-406(1) “require^ that the items must have been ‘paid in good faith’ for the period of limitation to run”); Kiernan v. Union Bank, 55 Cal.App.3d 111, 114,127 Cal.Rptr. 441, 443 (1976) (the limitation period in § 4-406(4) does not begin to run unless the items have been “ ‘paid in good faith,’ ” pursuant to § 4-406(1)); La Sara Grain Co. v. First Nat’l Bank of Mercedes, 673 S.W.2d 558, 562 (Tex.1984) (the time limitations in § 4-406 “apply only to items paid in good faith,” pursuant to the first subsection); Halifax Corp. v. First Union Nat’l Bank, 262 Va. 91, 546 S.E.2d 696 (2001).

It is well settled that when the legislature makes a “material change in the language of [an] original act,” it is “presumed to indicate a change in legal rights.” 1A Norman J. Singer, Statutes and Statutory Construction § 22:30 (6th ed.2002) (footnote omitted). In other words, the “amendment of an unambiguous statute indicates an intention to change the law.’’ Id. (emphasis added). See State v. Lammie, 164 Ariz. 377, 379, 793 P.2d 134, 136 (Ariz.Ct.App.1990) (“when the legislature amends statutory language, it is presumed that it intends to make a change in existing law”); Matter of Stein, 131 A.D.2d 68, 72, 520 N.Y.S.2d 157, 159 (App.Div.1987) (“When the Legislature amends a statute, it is presumed that the amendment was made to effect some purpose and make some change in the existing law.... By enacting an amendment of a statute and changing the language thereof, the Legislature is deemed to have intended a material change in the law.... Moreover, a statute will not be held to be a mere reenactment of a prior statute if any other reasonable interpretation is attainable .... ”), appeal dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 46 (1988).

Thus, it is presumed that the legislature, by removing the good-faith preface from subsection (a) when it enacted the current § 7-4-406, intended to effect a “change in legal rights.” Norman J. Singer, supra. The omission, coupled with the absence of any reference to good faith in subsection (f), indicates that the legislature did not intend to except a payment by a bank made in the absence of good faith from the rule of repose contained in subsection (f). Indeed, in Halifax Corp., supra, the only other court of last resort that has discussed the effect of the omission of the good-faith preface, the Virginia Supreme Court — construing § 8.4-406 of Virginia’s Uniform Commercial Code — found the omission to be intentional and significant, and held that the Virginia “General Assembly did not intend to impose [the good-faith] requirement upon a bank which asserted that a customer was precluded from recovering against it because the customer failed to discover and report an unauthorized signature or alteration on an item within the [period prescribed by subsection (f) ].” 262 Va. at 102, 546 S.E.2d at 703.

In so holding, the Court expressly rejected many of the same arguments Pinigis makes in this case. Regarding § 8.4^06, which differs in no meaningful respect from § 7-4^06, the Virginia Supreme Court stated:

“When analyzing a statute, we must assume that the General Assembly chose, with care, the words it used in enacting' the statute, and we are bound by those words when we apply the statute .... Additionally, when the General Assembly includes specific language in one section of a statute, but omits that language from another section of the statute, we must presume that the exclusion of the language was intentional....
“Code § 8.4-406 imposes certain duties upon bank customers to discover and report unauthorized signatures or alterations. Code § 8.4-406(a) provides that a bank which elects to send or make available to a customer a statement of account showing payment of items for the account must provide certain information to the customer.
“Code § 8.4-406(c) imposes a duty upon a customer to exercise reasonable promptness to examine the bank statement or items to determine whether any payment was not authorized because of an alteration or unauthorized signature. Code § 8.4 — 406(c) also imposes a duty upon the customer to promptly notify the bank of the relevant facts. Code § 8.4-406(c) does not limit the scope of the customer’s duty to those items that the bank paid in good faith.
“By contrast, subsection 1 of the former version of Code § 8.4-406 also imposed a duty upon bank customers to examine their bank statements and report any alterations or unauthorized signatures. However, the duty imposed upon bank customers by former Code § 84-4-06 applied only with respect to items paid in good faith by the bank. The former Code provision stated: When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries ... the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.’
“Current Code § 8.4 — 406(d), which precludes a customer from asserting a claim against a bank for a loss caused by an unauthorized signature or alteration in certain prescribed circumstances, provides that this preclusion does not apply if the bank failed to pay an item in good faith. Code § 8.4^106(d) explicitly limits the preclusion to items ‘paid in good faith by the bank.’ Additionally, the General Assembly also expressly used the phrase ‘good faith’ in Code § 8.4-406(e). This provision states in relevant part: ‘If the customer proves that the bank did not pay an item in good faith, the preclusion under subsection (d) does not apply.’
“Code § 8.4-406(f) bars a customer, who received a statement or item from a bank but failed ,to discover or report the customer’s unaúthorized signature or alteration on the item to the bank within one year after the statement or item is made available to the customer, from asserting a claim against the bank for the unauthorized signature or alteration. The customer’s compliance with this one-year statutory notice provision is a condition precedent to the customer’s right to file an action against the bank to recover losses caused by the unauthorized signature or alteration. Code § 8.4-406(f) is devoid of any language which limits the customer’s duty to discover and report unauthorized signatures and alterations to items paid in good faith by the bank. The absence of the phrase, ‘good faith,’ in the language chosen by the General Assembly compels this Court to conclude that a bank’s statutory right to assert a customer’s failure to give the statutorily prescribed notice is not predicated upon whether the bank exercised good faith in paying the item which contained the unauthorized signature or alteration. If the General Assembly had intended to limit the preclusion contained in Code § 8.4-406(f) to items paid in good faith, the General Assembly would have done so explicitly. See Allstate Insurance Co. v. Eaton, 248 Va. 426, 480, 448 S.E.2d 652, 655 (1994).”

262 Va. at 100-01, 546 S.E.2d at 702-03 (some emphasis in original; some emphasis added).

We find the reasoning of the Virginia Supreme Court in Halifax Corp. to be sound and fully in accord with our own view of § 7-4-406, Ala.Code 1975. In that connection, we disagree with Falk v. Northern Trust Co., 327 Ill.App.3d 101, 763 N.E.2d 380, 261 Ill.Dec. 410 (2001). In Falk, two Justices of the Illinois Court of Appeals — over a cogent dissent — held that a bank customer’s failure to comply with the notice provisions in the Illinois version of § 4-406(f) did not bar an action against the bank, “where the customer allege[d] that the bank acted in ‘bad faith’ in paying the items that [were] the subject of the suit.” 327 Ill.App.3d at 109, 763 N.E.2d at 385, 261 IlLDec. at 415. The majority in Falk was persuaded chiefly by an argument that a general duty of good faith attaches, pursuant to UCC § 1-203, to all transactions subject to the UCC. 327 Ill. App.3d at 109-10, 763 N.E.2d at 386, 261 Ill.Dec. at 416.

Pinigis makes a similar argument based on Alabama’s version of that section, namely, Ala.Code 1975, § 7-1-304. That argument was considered and rejected in Halifax Corp., where the Virginia Supreme Court stated:

“We acknowledge, as Halifax observes, that Code § 8.1-203 provides that every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance. Code § 8.1-203, however, does not require that a bank asserting the preclusion contained in Code § 8.4-406(f) demonstrate that it paid the unauthorized items in good faith.
“Code § 8.1-203 is a statute of general application whereas Code § 8.4-406 is a statute of specific application. ‘[W]hen one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, ... where they conflict, the latter prevails.’ Dodson v. Potomac Mack Sales & Service, 241 Va. 89, 94-95, 400 S.E.2d 178, 181 (1991) (quoting Virginia Nat’l Bank v. Harris, 220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)); accord County of Fairfax v. Century Concrete Services, 254 Va. 423, 427, 492 S.E.2d 648, 650 (1997); City of Winchester v. American Woodmark, 250 Va. 451, 460, 464 S.E.2d 148, 153 (1995). Thus, to the extent any conflict exists between Code § 8.1-203 and § 8.4^106(f), we must apply the statute of specific application, in this instance, Code § 8.4-406©.”

262 Va. at 102, 646 S.E.2d at 703.

Pinigis makes an additional argument based on Ala.Code 1975, 7-4-103(a); that section provides, in pertinent part: “The effect of the provisions of this article may be varied by agreement, but the parties to the agreement cannot disclaim á bank’s responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure.” (Emphasis added.) However, Pinigis is not aided by this section. This is so, because this case does not involve any such agreement. Also, § 7-4-406(f) does not purport to absolve the Bank of “responsibility for its lack of good faith or,” for that matter, “failure to exercise ordinary care.” Section 7-4^406(f) is a merely a “statute of repose,” and compliance with it is a “ ‘statutory prerequisite to suit.’ ” Pinigis I, 942 So.2d at 848. (quoting Euro Motors, Inc. v. Southwest Fin. Bank & Trust Co., 297 Ill.App.3d 246, 254, 696 N.E.2d 711, 716, 231 Ill.Dec. 415, 420 (1998)).

Providing such a statute of repose is not synonymous with absolving a bank of “responsibility for its lack of good faith,” any more than the 20-year rule of repose is in derogation of general common-law duties of care incumbent on all persons within Alabama. Rules of repose have nothing to do with standards of care. See Freese v. Regions Bank, N.A., 284 Ga.App. 717, 719, 644 S.E.2d 549, 551 (2007) (notice-limitation periods are not to be “confuse[d with] the concept of the bank’s ongoing duty” of care). They merely “reflect a legislative decision to extinguish all causes of action after passage of an arbitrary period of time. Roller v. Basic Constr. Corp., 238 Va. 321, 329, 384 S.E.2d 323, 327 (1989) (emphasis added). Thus, § 7-4-406© does not implicate § 7-1-304 or § 7-4-103(a).

Finally, Pinigis relies on a comment to the 1990 revision óf UCC § 4-406, which states:

“Subsection © amends former subsection (4) to delete the reference to a three-year period to discover an unauthorized indorsement. Section 4-406 imposes no duty on a customer to discover a forged indorsement. Section 4-111 sets out a statute of limitations allowing a customer a three-year period to seek a credit to an account improperly charged by payment of an item bearing an unauthorized indorsement. The final sentence added to subsection © incorporates the substance of former subsection (5).
“The other modifications are made to conform with current legislative drafting practices, with no intent to change substance.

American Law Institute and National Conference of Commissioners on Uniform State Laws, Reason for 1990 Change (Appendix IX.1990 Conforming [To Revised Article 3] and Miscellaneous Amendments to Article 4) (emphasis added).' According to Pinigis, “if the drafters of the UCC [had] intended such a drastic change (i.e., to give absolute immunity to banks, even those acting in bad faith), they would have commented on such a change.” -Pinigis’s reply brief, at 5.

“Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent.” Simmons v. Clemco Indus., 368 So.2d 509, 514 (Ala.1979). Indeed, the view expressed in the UCC comment is at odds with the clear import of the revisions to § 7-4-406 effected by the removal of the prefatory good-faith clause discussed above. The persuasiveness of that comment is further diminished by elsewhere stated comments regarding the purposes of the revisions to UCC articles 3 and 4, and generally inconsistent with the Alabama Comment to § 7-4-406.

The purposes for the revisions to articles 3 and 4 are stated in the “Prefatory Note” to revised UCC article 3:

“Present Articles 3 and 4, written for a paper-based system, do not adequately address the issues of responsibility and liability as they relate to modern technologies now employed and the procedures required by the current volume of cheeks....
“The revision of Article 3 and Article 4 to update, improve and maintain the viability of it is necessary to accommodate these changing practices and modern technologies, the needs of a rapidly expanding national and international economy, the requirement for more rapid funds availability, and the need for more clarity and certainty.
“Revised Articles 3 and 4 remove numerous uncertainties that exist in the current provisions and thus reduce risk to the payment system and allow appropriate planning by its users and operators.
“.... The Revision removes impediments to the use of automation, and ... reduce[s] risks to banks.”

(Emphasis added.)

A holding that § 7-4^406(f) contains no bad-faith exception accords perfectly with the stated purposes of the revision of UCC articles 3 and 4 to “remove numerous uncertainties” and “reduce risks to banks.” See generally, Kathleen Patchel, Interest Group Politics, Federalism and the Uniform Laws Process: Some Lessons from the Uniform Commercial Code, 78 Minn. L.Rev. 83 (1993) (discussing the processes and politics involved in the revisions of UCC articles 3 and 4). To read such an exception into the statute would eliminate the “ ‘bright line’ certainty which statutes of repose are designed to achieve.” Towne v. Robbins, 339 F.Supp.2d 1105, 1117 (D.Or.2004).

Moreover, the Alabama Comment to § 7-4-406 states, in pertinent part:

“The notice requirements in subsection (f) are the periods within which the customer must notify the drawee bank of the fraud or be absolutely barred from recovery. These notice requirements are in the nature of a statute of repose for reporting unauthorized signatures or alterations rather than a measure of time which a suit to recredit the account must be brought (a statute of limitations).”

(Emphasis added.) The concept of an “absolute bar” is clearly inconsistent with Pi-nigis’s argument that the application of § 7 — 4—406(f) ought to be conditioned upon the exercise of good faith by the Bank. Citation to authority is scarcely necessary to establish that the word absolute is synonymous with “unconditional. ” See Black’s Law Dictionary 9 (6th ed. 1990) (the definition of “absolute” includes the words “[cjomplete; perfect; final; without any condition or incumbrance”).

In short, Pinigis would have us read a condition into § 7-4-406(f) that does not appear on its face, that is inconsistent with persuasive caselaw and with the legislative history of the statute, and that does not comport with the ordinary function of a rule of repose. This we refuse to do. Instead, we expressly hold that the 180-day notice requirement in § 7 — 4—406(f) is an absolute rule of repose, the operation of which is not conditioned upon the exercise of good faith by the drawee bank.

For these reasons, the trial court did not err in entering a summary judgment for the Bank. That judgment is, therefore, affirmed.

AFFIRMED.

COBB, C.J., and SEE, LYONS, STUART, BOLIN, and MURDOCK, JJ., concur.

PARKER, J., concurs in the result.

SMITH, J., recuses herself.

      . According to Pinigis, she presented substantial evidence indicating that the Bank did not pay the disputed checks on Coyle's account in good faith, and, therefore, she argues, a summary judgment for the Bank was inappropriate.

      . The “only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant’s right by the party defending against the claim.” . Boshell, 418 So.2d at 92 (emphasis added).

      . Before it was revised and renumbered in 2001 as § 1-304, UCC § 1-203 provided: "Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.”

      . This argument was also considered and rejected in Halifax Corp., on the ground that the statute was unambiguous, and, therefore, that resort would not be made to official comments. 262 Va. at 99-100, 546 S.E.2d at 701-02. 1

      . Because we hold that there is no bad-faith exception to the notice requirement in § 7-4-406(f), we do not consider whether Pinigis presented substantial evidence of bad faith on the part of the Bank.


text:
    Boyd J. HARRISON v. Brenda A. MORROW and Samuel R. Anderson.
    1060300.
    Supreme Court of Alabama.
    July 6, 2007.

      Hobson Manasco, Jr., Haleyville, for appellant.
    Jerry Guyton of Fite, Davis, Atkinson, Guyton & Burt, P.C., Hamilton; Jerry W. Jackson of Jackson, Mays, McNutt, Cook & Slatton, LLC, Haleyville; and Nelson Vinson, Hamilton, for appellees.
   WOODALL, Justice.

Boyd J. Harrison appeals from a judgment for Brenda A. Morrow and Samuel R. Anderson on Harrison’s complaint seeking to declare the shares of Morrow and Anderson in the estate of Alton Anderson, deceased, forfeited. We affirm.

I. Factual Background

Alton Anderson died testate on March 24, 2000. For all purposes relevant to this appeal, his will named Morrow, Anderson, and Harrison as beneficiaries, and nominated Ben J. Schillaci as the executor.

The will also contained the following paragraph:

“E. Beneficiary Disputes. If any bequest requires that the bequest be distributed between or among two or more beneficiaries, the specific items of property comprising the respective shares shall be determined by such beneficiaries if they can agree, and if not, by my Executor. Any further dispute between or among the beneficiaries regarding distribution percentages or procedures shall permanently disqualify that person from any distribution. If a bequest is contested this share shall be distributed proportionately to the other distribu-tee(s) listed as beneficiaries.”

(Hereinafter referred to as “the in terro-rem provision.”)

On July 7, 2001, Morrow and Anderson filed an application to contest the will. Based on expert handwriting analysis, they alleged that the testator’s signature was a forgery. On September 27, 2001, the probate court entered a judgment denying the contest, admitting the will to probate, and issuing letters testamentary to Schillaci. Morrow and Anderson appealed to the Winston Circuit Court, which affirmed the judgment of the probate court. On June 13, 2003, this Court affirmed the judgment of the circuit court without an opinion. Morrow v. Estate of Anderson (No. 1020154), 883 So.2d 272 (Ala.2003)(table).

Subsequently, on November 19, 2003, Sehillaci filed in the probate court a “petition for construction of will and instruction as to proper distribution of estate.” The petition sought a construction of the in terrorem provision in the context of Morrow and Anderson’s contest of the will. Specifically, it sought a determination as to “whether said contest of the will ... caused [the] bequests to Brenda Morrow and Samuel R. Anderson to be forfeited and distributed to [Harrison].” On the motion of Morrow and Anderson, the administration of the estate was removed to the circuit court.

On February 23, 2004, Harrison filed a motion and complaint in intervention, alleging that the will contest operated as a forfeiture of Morrow’s and Anderson’s shares of the estate pursuant to the in terrorem provision. On March 2, 2004, Harrison’s motion to intervene was granted. Harrison moved for a summary judgment. On October 3, 2006, the circuit court denied Harrison’s summary-judgment motion and entered a judgment in favor of Morrow and Anderson, holding that the will contest did not violate the in terrorem provision, and, consequently, that no forfeiture had occurred. Harrison appealed.

II. Discussion

On appeal, Harrison contends that the in terrorem provision is unambiguous and plainly mandates a forfeiture. In other words, he insists that the proscriptions in the in terrorem provision encompass the will contest commenced by Morrow and Anderson. Morrow and Anderson agree that the in terrorem provision is unambiguous, but contend that the proscriptions clearly do not include the will contest they prosecuted. If they do include the will contest, they contend, this Court should follow the lead of a number of other jurisdictions and hold that in terrorem clauses are per se unenforceable. We need not determine whether in terrorem clauses are unenforceable in Alabama when their enforceability is specifically challenged, because we conclude that the will contest did not fall within the proscriptions of the in terrorem provision in this case.

The resolution of this case turns on the construction of a document. “ ‘[W]e apply a de novo review to a trial court’s determination of whether a contract is ambiguous and to a trial court’s determination of the legal effect of an unambiguous contract term.’ ” Young v. Pimperl, 882 So.2d 828, 830 (Ala.2003) (quoting Winkleblack v. Murphy, 811 So.2d 521, 525-26 (Ala.2001)). We agree with the parties that there is no ambiguity in the provision at issue in this case. “An ‘instrument is unambiguous if only one reasonable meaning clearly emerges.’ ” Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186 (Ala.1992)(quoting Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990)). “When the language of a will is clear and unambiguous, the rules of construction cannot be employed to rewrite that will and put it at variance with the meaning of the language used by the testator.” Windham v. Henderson, 658 So.2d 431, 434 (Ala.1995). “[W]ords employed in a will are to be taken in their primary or ordinary sense and use, unless a different meaning is indicated by the context and circumstances of the case .... ” Wiley v. Murphree, 228 Ala. 64, 68, 151 So. 869, 872 (1983).

In Kershaw, although we pretermitted, as we do here, discussion of the question of the enforceability of in terrorem clauses, we nevertheless noted: “ ‘Consistent with the often expressed view that the law abhors a forfeiture, no-contest provisions are looked upon with some disfavor and have been strictly construed.... A breach of a forfeiture clause will be declared only when the acts of a party come strictly within its expressed terms.’ ” 848 So.2d at 955 (quoting Claudia G. Catalano, Annotation, What Constitutes Contest or Attempt to Defeat Will Within Provision Thereof Forfeiting Share of Contesting Beneficiary, 3 A.L.R. 5th 590 § 2[a] (1992) (emphasis added)).

The in terrorem provision consists of three sentences. Some form of the word “distribute” appears four times in the provision, at least once in each sentence. In Kershaw, this Court examined the implications of the use of the term “distribute” in the context of estate administration.

Kershaw involved an in terrorem clause in the will of Miriam M. Kershaw; that clause stated, in pertinent part:

“ ‘If either of my sons in any manner, directly or indirectly, contests or attacks the validity of this Will or the validity of any trust ... or any disposition made under this Will or under any Trust ... by filing suit against my executor or the trustee of any trust created by me or otherwise, then any share or interest given to such son ... shall be disposed of in the same manner as if such son and all of his descendants had predeceased me.’ ”

848 So.2d at 951 (emphasis added). The issue was whether Knox Kershaw, one of Miriam Kershaw’s sons and one of two beneficiaries under her will, had violated that clause by commencing of an action to determine, among other things, the “proper use of proceeds from life insurance policies on Mrs. Kershaw’s life.” 848 So.2d at 947. Under Knox’s theory, the proceeds should have been used to buy and convert to cash outstanding stock in the family business, which stock otherwise passed under the will to one of three inter vivos trusts, resulting in a diminution of the share of the estate passing to Knox under the will. Id.

The trial court held that Knox had violated the in terrorem clause, resulting in a forfeiture of his share of the estate. It concluded that “Knox’s litigation constituted ... ‘an effort to change distributions,’ ” because “different amounts would be distributed to the two beneficiaries if [Knox] prevailed on ... his claims with respect to the use of the proceeds of the life insurance policies.” 848 So.2d at 949 (emphasis added). This Court reversed the trial court’s judgment, explaining that the source of the trial court’s error lay in its “conflation of the terms distribution and disposition.” 848 So.2d at 953 (emphasis added).

We pointed out that under well-established and widely understood principles, the “distribution of estate assets is a function of the executor or administrator — not the testator,” while a “testamentary disposition” is “the function of the testator.” 848 So.2d at 952 (emphasis added). On that basis, we concluded that Knox had not “ ‘directly or indirectly, contested] or attacked] ... any disposition made under [the] Will.’ ” 848 So.2d at 953 (emphasis added). This was so, because his “challenges [left] intact the formulas in the ... will; they affect[ed] only the amount of the payout,” that is, the distribution, “when those formulas were applied to the assets.” 848 So.2d at 953. In other words, a chai-lenge to the manner of distribution did not implicate the proscription on challenges to disposition. Thus, Knox’s challenge to the manner of distribution of certain assets did not amount to a challenge to the validity of the will itself.

This case is the converse of Kershaw in that, here, the in terrorem provision purports to proscribe disputes regarding distribution, rather than disposition, and the will contest filed by Morrow and Anderson challenged the disposition, rather than the distribution, of the assets. The first sentence refers to the distribution of specific bequests: “If any bequest requires that the bequest be distributed between or among two or more beneficiaries, the specific items of property comprising the respective shares shall be determined by such beneficiaries if they can agree, and if not, by my Executor.” (Emphasis added.)

Sentence two carries the subject of sentence one a step further: “Any further dispute between or among the beneficiá-ries regarding distribution percentages or procedures shall permanently disqualify that person from any distribution.” (Emphasis added.) Sentence two does not broaden the scope of sentence one. This is so, because it refers only to “further dis-putéis],” that is, disputes of the same class as are the subject of sentence one. Also, sentence two contains an additional clarifying clause, which is the phrase “regarding distribution percentages or procedures.” (Emphasis added.) This clause further illustrates that the in terrorem provision refers to the distributive acts of the executor, rather than to the dispositional acts of the testator.

Finally, sentence three is essentially a restatement of sentence two, with the addition of specific instructions as to the procedure to be followed with regard to that portion of the bequest forfeited by the beneficiary contesting the bequest: “If a bequest is contested this share shall be distributed proportionately to the other distributee(s) listed as beneficiaries.” In other words, that bequest is to be apportioned between or among the remaining beneficiaries of that bequest.

Regarding sentence three, Harrison argues:

“The acts of [Morrow and Anderson] come strictly within the expressed terms of the in terrorem clause contained in the will ... in the second and third sentences in that the contest has the legal effect of disputing the entire will and violates the third sentence in that once again, the contest for any reason has the legal effect of contesting all bequests contained in the will, for if the contest is successful and the will is set aside, there will be no bequest as the Testator ... intended and the estate ... will pass under intestate succession.”

Harrison’s brief, at 41 (emphasis added) (citations to the record omitted).

Harrison’s reasoning is faulty in a number of respects. First, his construction of sentences two and three ignores the narrowly drawn language limiting the scope of the provisions to specific bequests requiring distribution “between or among two or more beneficiaries.” Second, it fails to acknowledge the fundamental distinction between a challenge to the distribution of a specific bequest and a contest of the will as a whole. That a contest can arise over the distribution of a specific bequest without implicating the entire will is amply illustrated by Kershaw. A provision, such as the one involved in Kershaw, purporting to prohibit a will contest does not necessarily prohibit a challenge to a specific bequest. Conversely, there is no reason why a testator could not, or would not, narrowly draft a provision that prohibits a beneficiary from contesting only the distribution of certain specific bequests, without disinheriting that beneficiary altogether if he or she challenges the overall validity of the will. Third, if sentence three prohibits an attack on the will as a whole, as Harrison contends, then sentence three entirely subsumes sentences one and two and renders them nugatory. In effectuating the intent of the testator, however, this Court must “giv[e] effect to each provision where it is possible to do so.” Born v. Clark, 662 So.2d 669 (Ala.1995). Fourth, Harrison’s argument for the broadest possible sweep of the provisions conflicts with the rule articulated in Kershaw, namely, that in terrorem clauses, to the extent they may be enforced in Alabama, are to be construed narrowly to avoid a forfeiture. 848 So.2d at 955.

III. Conclusion

Well-established rules of testamentary interpretation compel the conclusion that the in terrorem provision in Alton Anderson’s will prohibits only challenges to procedures for the distribution of specific bequests and percentages thereof, not to a contest of the will itself. The contest application filed by Morrow and Anderson, however, challenged the disposition of the estate, rather than the distribution of specific bequests. Consequently, the will contest commenced by Morrow and Anderson was not within the purview of the in terro-rem provision in this case. Because the trial court did not err in entering its judgment in favor of Morrow and Anderson, that judgment is affirmed.

AFFIRMED.

LYONS, STUART, SMITH, and PARKER, JJ., concur.

COBB, C.J., and SEE, BOLIN, and MURDOCK, JJ., concur in the result.

      . In keeping with the practice of the testator and the parties, we will use the terms "bequests” and "beneficiaries” throughout this opinion, rather than the statutory terms "devises” and "devisees.” See Ala.Code 1975, § 43-8-1(5) and (6).

      . "An in terrorem clause is '[a] provision designed to threaten one into action or inaction; esp., a testamentary provision that threatens to dispossess any beneficiary who challenges the terms of the will.’ ” Kershaw v. Kershaw, 848 So.2d 942, 944 n. 1 (Ala.2002) (quoting Black's Law Dictionary 825 (7th ed.1999)).

      . The parties agree that only two Alabama cases have heretofore involved in terrorem clauses: Kershaw v. Kershaw, 848 So.2d 942 (Ala.2002), and Donegan v. Wade, 70 Ala. 501 (1881). Neither case directly involved an issue regarding the enforceability of in terrorem clauses per se. Kershaw, 848 So.2d at 950.


author: LYONS, Justice.

text:
    N.D. HORTON, Jr., and James M. Reynolds v. J. Lester ALEXANDER III, trustee of Terry Manufacturing Company, Inc.
    1060445.
    Supreme Court of Alabama.
    July 13, 2007.

      C. Ellis Brazeal III of Walston, Wells & Birchall, LLP, Birmingham, for plaintiffs.
    Brent B. Barriere and Catherine E. La-sky of Phelps Dunbar, LLP, New Orleans, Louisiana, for defendants.
   LYONS, Justice.

The United States District Court for the Middle District of Alabama has certified to this Court the following question, pursuant to Rule 18, Ala. RApp. P.:

“Interpreting Ala.Code § 8-9A-8(d), does ‘or to another person’ refer to value given by a good-faith transferee to any other person, without qualification or exception, as a consequence of the debtor’s transfer, or is it limited to being a codification of the ‘indirect benefit’ rule allowing protection where value given to a person other than the debtor indirectly benefits the debtor, or should it be interpreted in some other way?” ■

I. Factual Background and Procedural History

In the bankruptcy proceeding of Terry Manufacturing Company, Inc. (“the debt- or”), pending in the United States Bankruptcy Court for the Middle District of Alabama, N.D. Horton, Jr., and James M. Reynolds (“the transferees”) were ordered to repay certain sums to J. Lester Alexander III, the trustee for the debtor (“the trustee”). The transferees appealed the order of the bankruptcy court to the United States District Court for the Middle District of Alabama (“the District Court”). The District Court, acting pursuant to Rule. 18, Ala. R.App. P.,- Certified Questions from Federal Courts, certified to this Court a question of first impression involving the construction of § 8-9A-8(d), Ala. Code 1975, creating an exception to provisions of the Alabama Fraudulent Transfer Act, §' 8-9A-1 et seq., Ala.Code 1975 (“the Act”).

The District Court set forth the following factual background in its certificate:

“The active players in this case can be separated into three primary groups: (1) the transferees/appellants (Horton and Reynolds), (2) the Terry family, and (3) Terry Manufacturing Company, Inc.
“The Terry family includes (a) Roy Terry (CEO of Terry Manufacturing), (b) Rudolph Terry (CFO of Terry Manufacturing), (c) Cotina Terry .(the daughter of Roy Terry), and (d) Allie Robinson (wife of Rudolph Terry).
“There are three loans that serve as the basis for the alleged fraudulent transfers that comprise the subject of this litigation.
“On November 10, 2000, the transferees (Horton and Reynolds) made two loans in connection with the sale of common shares of stock in a company named Perky Cap Company, Inc. One of the loans was evidenced by a Purchase Money Promissory Note executed by Cotina Terry in the principal sum of $200,000.00, bearing interest at the rate of 9.5% per annum. Similarly, the other loan was evidenced by a Purchase Money Promissory Note executed by Allie Robinson in the principal sum of $200,000.00, bearing interest at the rate of 9.5%. Each of these loans was made for the purchase of 9,000 shares of Perky Cap stock (approximately 10% of the outstanding stock of that company). Terry Manufacturing was not a signatory on either loan. Both loans, however, were paid in full to Horton and Reynolds by Terry Manufacturing, with principal and interest on each loan being $234,375.81, for a total of $468,751.62 being paid. Terry Manufacturing was never a shareholder of Perky Cap stock. Although Terry Manufacturing made payments on behalf of Cotina Terry and Allie Robinson, the stock was registered in the names of Cotina Terry and Allie Robinson, who received all of the benefits flowing to the holders of Perky Cap stock.
“On May 30, 2002, Horton and Reynolds transferred 27,900 shares of Perky Cap stock to Roy Terry and Rudolph Terry jointly (approximately 31% of the outstanding shares of that company). As consideration, Roy and Rudolph Terry jointly executed a Purchase Money Promissory Note in the principal amount of $624,000.00, bearing interest at a rate of 9.5% per annum. There is some dispute among the parties whether these shares of stock were actually transferred or not. If such shares were transferred, however, they were registered in the names of Roy and Rudolph Terry, and Terry Manufacturing had no interest in the shares whatsoever. Regardless, all payments on this note were made to Horton and Reynolds by Terry Manufacturing up until its Chapter 11 bankruptcy filing. Such payments totaled $127,968.98.
“Based on these three loans, Terry Manufacturing paid Horton and Reynolds $596,738.60 between November 2000 and May 2003. These payments are the basis for this action with claims being made by the bankruptcy trustee of Terry Manufacturing under both the Bankruptcy Code and the Alabama Fraudulent Transfer Act. The bankruptcy court found for the trustee under both the Bankruptcy Code and the Alabama Fraudulent Transfer Act, and found that these payments were not supported by ‘reasonably equivalent value’ and, therefore, were fraudulent transfers. Accordingly, Horton and Reynolds were ordered to repay the sum of $596,738.60 to J. Lester Alexander, III, the bankruptcy trustee for Terry Manufacturing. Horton and Reynolds filed this appeal.

II. Analysis

In a nutshell, the transferees made three loans to various members of the Terry family to enable these family members to finance the purchase of stock in a company in which the debtor had no interest nor did it have any liability whatsoever in the transactions. Nevertheless, the debtor paid two of the loans in full and paid a portion of the third loan before it filed a petition in bankruptcy pursuant to Chapter 11 of the Bankruptcy Code. The bankruptcy court found the transfers by the debtor to be fraudulent and ordered the transferees to repay to the trustee the sums previously received from the debtor.

This Court is asked to construe § 8-9A-8(d), which reads as follows:

“Notwithstanding voidability of a transfer under this chapter, a good-faith transferee is entitled, to the extent of the value given the debtor for the transfer or to another person as a consequence of the debtor’s making such transfer, to
“(1) A lien on or a right to retain any interest in the asset transferred; or
“(2) A reduction in the amount of the liability on the judgment.”

(Emphasis added.)

Because we are dealing with the Uniform Fraudulent Transfer Act (“the UFTA”), we could ordinarily find persuasive authority from other jurisdictions construing similar language. However, that simple solution is unavailable because the emphasized language set forth above is unique to Alabama. Ordinarily in such a situation we would look to the Alabama Comment for an explanation of the reason for the deviation from the model act. However, nothing about this statute is ordinary.

The applicable portion of the Alabama Comment states:

“3. The language, ‘or to another person as a consequence of the debtor’s making such transfer[,] to’ is added to the Uniform Act in subsection (d) of this section. This language is merely to clarify the fact that a good faith transferee is protected to extent of value given by the transferee to one other than the debtor is effectively a transfer for the debtor to the one who receives the value, this transfer may under proper circumstances be a fraudulent transfer. Moreover, the fact that the transferee gives value for the property he receives from the debtor to a person other than the debtor may affect the transferee’s status as a good faith transferee.”

The second sentence begins with a tantalizing introductory phrase that suggests that clarification will follow, but the sentence then breaks down into an incomprehensible juxtaposition of unintelligible phrases.

The transferees invoke the plain meaning rule.

“Our resolution of this dispute is governed by well-established principles of statutory construction and separation of powers. It is axiomatic that ‘ “[wjords 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.” ’ University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1246 (Ala.2004) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)) (emphasis added). Moreover, ‘ “[i]f the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’ Id. (emphasis added).”

Ellis v. West, 971 So.2d 20, 22 (Ala.2007). The transferees contend that we should read § 8-9A-8(d) without engrafting any limitation upon it and thereby except the transfers made by the debtor to them from the sweep of the Act. Under the transferees’ reading, § 8-9A-8(d) allows them to retain the funds transferred to them by the debtor because the transfer benefited the Terry family in that it satisfied the family’s indebtedness to the transferees.

The trustee objects to the recognition of a transfer to a third party that does not benefit the debtor. The trustee offers a construction of § 8-9A-8(d) derived from the landmark case of Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979 (2d Cir.1981), in which the United States Court of Appeals for the Second Circuit, dealing with provisions in the Bankruptcy Code applicable to fraudulent transfers, recognized that a transfer to a third person, instead of the debtor, can nonetheless result in an indirect benefit to the debtor. There, the court found an indirect benefit where two affiliates, through a system of guaranties and cross-guaranties, guaranteed loans to their independent third-party distributors, and as a result actually received more cash on a daily basis from the borrowing third-party distributors. The trustee points to the complete absence of any benefit to the debtor by reason of the payment of the loans on behalf of members of the Terry family, thereby, he says, depriving them of the exception afforded by § 8-9A-8(d).

Laying to one side for the moment the problems posed by the trustee’s contention as to the incorporation of Rubin in the context of the conflict of such a reading of § 8-9A-8(d) with the plain-meaning rule, the flaw in the trustee’s argument lies in the availability of the rule in Rubin independent of the language added to § 8 of the UFTA by § 8-9A-8(d). Section 8-9A-4(b) provides that in determining whether a challenged transfer has been made with actual intent to hinder, delay, or defraud a creditor, a court may consider several factors, including, at § 8-9A-4(b)(8), whether “[t]he value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred.” Courts searching for a standard based on the same language in other statutes have applied the rule in Rubin. See, e.g., Beemer v. Walter E. Heller & Co. (In re Holly Hill Med. Ctr., Inc.), 44 B.R. 253, 255 (Bkrtcy.M.D.Fla.1984), in which the court tied the Rubin rule to the phrase “reasonably equivalent value,” as follows:

“Where, however, a tripartite relationship exists, but analysis of the facts demonstrates that the debtor nonetheless receives reasonably equivalent value, case law seems clear to the effect that, ‘a debtor may sometimes receive “fair” consideration even though the consideration given for his property or obligation goes initially to a third person,’ Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979 (2nd Cir.1981). (Rubin alludes to ‘fair consideration’ rather than ‘reasonably equivalent value’ because it was decided under § 67(d)(1)(e) of the Bankruptcy Act, and the ‘fair consideration’ terminology originated with § 548 of the Code. We are satisfied that the terms have very similar meanings.)”

Consequently, even if § 8-9A-8(d) referred only to “the extent of value given the debtor” without the additional phrase, “or to another person as a consequence of the debtor’s making such transfer,” a court would not be deprived of the opportunity to apply the Rubin rule.

The transferees call our attention to a portion of the Official Comment to § 6 of the UFTA. They say it supports the view that the Act did not require an amendment to provide for the availability of the indirect-benefit rule in Rubin. This contention introduces a problematic consideration.

Section 6(5) of the UFTA provides:

“(5) an obligation is incurred:
“(i) if oral, when it becomes effective between the parties; or
“(ii) if evidenced by a writing, when the writing executed by the obligor is delivered to or for the benefit of the obligee.”

The Official Comment explains the purpose of subparagraph (5) as follows:

“Paragraph (5) is new. It is intended to resolve uncertainty arising from Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 989-91, 997 (2d Cir.1981), insofar as that case holds that an obligation of guaranty may be deemed to be incurred when advances covered by the guaranty are made rather than when the guaranty first became effective between the parties. Compare Robert J. Rosenberg, Intercorporate Guaranties and the Law of Fraudulent Conveyances: Lender Beware, 125 U. Pa. L.Rev. 235, 256-57 (1976).”

The Official Comment then adds a concluding paragraph not tied to any specific provision of § 6, stating:

“An obligation may be avoided as fraudulent under this Act if it is incurred under the circumstances specified in § 4(a) or § 5(a). The debtor may receive reasonably equivalent value in exchange for an obligation incurred even though the benefit to the debtor is indirect. See Rubin v. Manufacturers Hanover Trust Co., 661 F.2d at 991-92; Williams v. Twin City Co., 251 F.2d 678, 681 (9th Cir.1958); Rosenberg, supra at 243-46.”

Because § 6(5) repudiated that aspect of Rubin holding that an obligation is incurred only when advances are made and not when the guaranty first becomes effective, perhaps the drafters of the UFTA considered it necessary to add a separate paragraph to the Official Comment endorsing Rubin on the separate issue of indirect benefit. Nevertheless, § 6(5) was not adopted in Alabama, and we have no commentary explaining the decision not to include it. One might speculate that the legislature erroneously assumed that the concluding paragraph of the Official Comment of the UFTA, endorsing Rubin as to indirect benefit, related only to omitted § 6(5) instead of the entirety of the Act and, because it did not want its omission of § 6(5) to be seen as critical of the indirect-benefit rule in Rubin, it added the “or to another person” language to § 8-9A-8(d), thus indicating its approval of Rubin. We decline to grasp at these straws in determining legislative intent in face of the unambiguous text of § 8-9A-8(d), because the legislature did not use language consistent with such narrow purpose for the added phrase “or to another person as a consequence of the debtor’s making such transfer.”

Section 8-9A-8(d) refers “to the extent of the value given the debtor for the transfer or to another person as a consequence of the debtor’s making such transfer.” To limit the text to an embrace of Rubin, we would have to treat § 8-9A-8(d) as stating, “to the extent of the value given the debtor for the transfer or to another person/or the indirect benefit of the debtor as a consequence of the debtor’s making such transfer.”

In an effort to establish the inconsistency of the plain meaning of § 8-9A-8(d) with the purposes of the Act, the trustee contends in his brief to this Court that enforcement of § 8-9A-8(d) without requiring an indirect benefit to the debtor “would render the purpose and provisions of the Alabama fraudulent transfer act meaningless and would give free reign [sic] to third parties to loot the assets of a debtor at the expense of the creditors — the very parties the act is meant to protect.” The trustee further argues in his brief that under the construction advocated by the transferees, “an insider may cause the corporate debtor to employ all of its assets in transactions for which it receives absolutely no benefit, and those transfers will be effectively immune from attack so long as the insiders receive some benefit.” As the transferees correctly point out, the protection of the exception in § 8-9A-8(d) would not be available to transferees who did not act in good faith. However, under what we consider to be the plain meaning of the exception in § 8-9A-8(d), a transferee acting in good faith under circumstances by which the transfer of the debtor’s assets confers value on a person other than the transferee will be able to avoid repayment. Further, although the Alabama Comment can perhaps be charitably described as ambiguous, it cannot trump an unambiguous statute.

We are left with the question whether the recognition of an exception in § 8-9A-8(d) in the context of transfers for the benefit of a third person constitutes an absurd result the legislature could not possibly have intended and, if so, whether this Court can disregard the exception. The transferees contend that the legislature intended to protect a good-faith transferee from “having to pay twice.” They argue that they sold stock for $600,000 and that if the trustee can now recover the $600,000 the debtor paid them, the transferees will have essentially “paid twice” for participating in a good-faith transfer. Presumably, the first payment by the transferees took place in the form of their transfer of the stock to the Terry family in exchange for a promissory note. The transferees’ second payment would result from the requirement of repayment of $600,000 to the debt- or in a setting where the Terry family’s indebtedness under the promissory notes has previously been extinguished by the debtor’s payment to the transferees.

This Court was recently divided on the extent to which an unambiguous statute can be construed so as to avoid an absurd result. See City of Bessemer v. McClain, 957 So.2d 1061, 1074 (Ala.2006), in which a majority of this Court stated:

“When interpreting a statute, a court must first give effect to the intent of the legislature. BP Exploration & Oil, Inc. v. Hopkins, 678 So.2d 1052 (Ala.1996).
“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).
‘There is also authority for the rule that uncertainty as to the meaning of a statute may arise from the fact that giving a literal interpretation to the words would lead to such unreasonable, unjust, impracticable, or absurd consequences as to compel a conviction that they could not have been intended by the legislature.’
“73 Am.Jur.2d Statutes § 114 (2001) (footnotes omitted).”

(Second emphasis added.) Even assuming we were today to reaffirm the foregoing principles, a question we do not reach, we are unable to conclude that § 8~9A-8(d), affording expanded relief to a good-faith transferee, apparently at odds with the general purpose of the Act, reaches an absurd result wholly beyond the reasonable contemplation of the legislature. Our conclusion pretermits consideration of the authority of this Court to intercede if § 8-9A-8(d) reached an absurd result.

III. Conclusion

We decline the trustee’s request to rewrite a statute to create an exception that we cannot harmonize with the plain meaning of the statute. We therefore answer the certified question by holding that the phrase in § 8-9A-8(d), “or to another person as a consequence of the debtor’s making such transfer,” refers to value given by a good-faith transferee to any other person, without qualification or exception, as a consequence of the debtor’s transfer. Any dissatisfaction with the consequences of the plain meaning of § 8-9A-8(d) is a matter for the legislature.

CERTIFIED QUESTION ANSWERED.

COBB, C.J., and SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

       Although this amount is $18.00 greater than the total sum of the three noted payments, the parties stipulated to this amount as the total payments made to Horton and Reynolds by Terry Manufacturing in connection with the promissory notes executed by Cotina Terry, Allie Robinson, and Roy and Rudolph Terry.”

      . The question whether the transferees acted in good faith so as to entitle them to the exception in § 8-9A-8(d) is not before us. For purposes of responding to the question, we assume that they acted in good faith.


text:
    Ex parte Sheriff John Mark TIREY. (In re T.M., as next friend of K.K.M., a minor v. Charles Leonard Uptain et al.).
    1061066.
    Supreme Court of Alabama.
    July 13, 2007.
    Daryl L. Masters, C. Richard Hill, Jr., and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, for petitioner.
    Josh J. Wright of Hollis & Wright, P.C., Birmingham, for respondent.
   WOODALL, Justice.

Walker County Sheriff John Mark Tirey petitions this Court for a writ of mandamus directing the Walker Circuit Court to grant the motion to dismiss filed by Sheriff Tirey in an action brought against him and other defendants by T.M., as next friend of K.M.M., a minor. We grant the petition and issue the writ.

T.M. is KM.M.’s mother. The complaint she filed on behalf of her son alleges that K.M.M. was sexually assaulted by Charles Leonard Uptain, an adult criminal sex offender, as that term is defined by the Community Notification Act, §§ 15-20-20 to -38, Ala.Code 1975. Insofar as Sheriff Tirey is concerned, T.M. alleges that the assault upon her son was the proximate result of Sheriff Tirey’s alleged failure to comply with the community-notification procedures prescribed by § 15-20-25.

Sheriff Tirey filed a motion to dismiss the claims against him on the ground that he is entitled to the State immunity afforded sheriffs by Art. I., § 14, Ala. Const. 1901. The trial court has failed to grant Sheriff Tirey’s motion to dismiss; thus, Sheriff Tirey has petitioned this Court for a writ of mandamus to compel the trial court to grant his motion.

A sheriff is immune from suit under most circumstances.

“In Parker v. Amerson, 519 So.2d 442 (Ala.1987), this Court held that a sheriff, as an executive officer of the State of Alabama, is immune, under Article I, § 14, of the Alabama Constitution, from suit based on state law claims arising out of the execution of the duties of his office, except for actions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under a mistaken interpretation of the law, or (5) under the Declaratory Judgment Act to seek construction of a statute if he is a necessary party for the construction of the statute.”

Boshell v. Walker County Sheriff, 598 So.2d 843, 844 (Ala.1992). See also Ex parte Sumter County, 953 So.2d 1235, 1239-40 (Ala.2006); Ex parte Haralson, 853 So.2d 928, 932 (Ala.2003).

T.M. claims that Sheriff Tirey negligently or wantonly failed to fulfill duties imposed upon him as the sheriff of Walker County by § 15-20-25. Her claims do not fall within any of the exceptions to the State immunity afforded sheriffs. Consequently, T.M. has failed to state a claim against Sheriff Tirey for which any relief can be granted.

In response to Sheriff Tirey’s petition, T.M. invites this Court to consider her claim under the principles of State-agent immunity expressed in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted in Ex parte Butts, 775 So.2d 173 (Ala.2000). However, the “State immunity afforded sheriffs ... is not affected by this Court’s decision[s] on State-agent immunity.” Sumter County, 953 So.2d at 1239-40. Instead, a sheriff “is entitled to sovereign immunity, now referred to as State immunity.” Ex parte McWhorter, 880 So.2d 1116, 1117 (Ala.2003). Because Sheriff Tirey is entitled to State immunity, we grant his petition and direct the trial court to enter an order dismissing all claims asserted by T.M. against him.

PETITION GRANTED; WRIT ISSUED.

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