author: WOODALL, Justice. COBB, Chief Justice

text:
    Betty ELLIS, as personal representative of the estate of Annie Laurie Pace, deceased v. Joshua Adam Falls WEST and Jacob Wayne Falls West, by and through their next friend, Agnes WEST.
    1051822.
    Supreme Court of Alabama.
    April 27, 2007.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.

      Clark Summerford and Beverly S. Williamson of Zeanah, Hust, Summerford & Williamson, L.L.C., Tuscaloosa, for appel-lees.
    Michael L. Capleone of Capleone Law Office, LLC, Birmingham, guardian ad li-tem.
   WOODALL, Justice.

Betty Ellis, as personal representative of the estate of her sister, Annie Laurie Pace, deceased, appeals from a judgment for Joshua Adam Falls West and Jacob Wayne Falls West (“the children”), by and through their adoptive mother and next friend, Agnes West, on the children’s petition asserting a claim in Pace’s estate. We reverse and remand with directions.

The facts are undisputed. The decedent, Annie Laurie Pace, was the maternal great-grandmother of the children, being the mother of Robert Pace, deceased, who was the father of Kelly Pace, who married Ricky Falls in 1990. In April 1993, Kelly Pace Falls died, survived by her husband and the children. On November 16, 1995, the children were adopted by their paternal grandmother, Agnes West, and her husband, Albert West, the children’s step-grandfather.

Annie Laurie Pace died intestate on July 25, 2005, and letters of administration were issued to her sister, Betty Ellis. Subsequently, the children, by and through Agnes West, filed in the probate court a “petition for determination of heir-ship,” alleging that they are the “only surviving lineal descendants of Annie Laurie Pace.” The petition sought an “order determining that [the children] are the heirs and next-of-kin of [Annie Pace], and are entitled to inherit the estate of [Annie Pace].” The proceeding was removed to the Jefferson Circuit Court.

On July 5, 2006, Ellis moved for a summary judgment, arguing that the children’s petition had no merit, based on Ala.Code 1975, § 43-8-48(1), which provides:

“If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
“(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent....”

(Emphasis added.)

On August 30, 2006, the trial court entered an order granting the children’s petition. The order stated, in pertinent part:

“The court hereby finds that the undisputed facts show that Kelly Pace Falls, the biological mother of [the children], died prior to the adoption of the children; therefore, there was no termination of parental rights nor relinquishment of parental rights by Kelly Pace Falls. The minor children were adopted by their paternal grandmother, Agnes West and paternal step-grandfather, Albert West, following the death of Kelly Pace Falls. The biological father of the children consented to the adoption of the children by his mother and stepfather.
“The court finds further that § 43-8-48, Code of Alabama, is not to be so strictly construed as to disinherit these minor children from the biological mother’s grandmother. There are no reported Alabama cases applying strict construction of this statute such that these children would not inherit under the law of intestate succession under the facts of this case. Their deceased biological mother, the granddaughter of the decedent, Annie Laurie Pace, did not consent to the adoption of her children, nor were her parental rights terminated. Neither does this court provide for such a result.”

(Emphasis added.)

Subsequently, Ellis appealed. On appeal, Ellis contends that the trial court failed to apply § 43-8-48 according to its plain meaning, and that it erred in failing to do so.

Our resolution of this dispute is governed by well-established principles of statutory construction and separation of powers. It is axiomatic that “ ‘[w]ords 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).

We see no ambiguity in § 43-8-48(1). It clearly states that an adopted child is not the child of its natural parents “for purposes of intestate succession.” The single exception is where the adoptive parent is “spouse of a natural parent.” It is undisputed that the exception does not apply in this case.

The children urge this Court to disregard the clear statutory directive and engage in a labored public-policy discussion, with a view to integrating the probate code with the adoption code, and to affirm the judgment on that basis. Children’s brief, at 10-17. This, we may not do.

“ ‘[Section] 43 of the Constitution of Alabama of 1901 mandates the separation of judicial power from legislative power and condemns the usurpation of the power of one branch of government by the other.’ ” Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 157 (Ala. 2003) (quoting Ex parte Thicklin, 824 So.2d 723, 732 (Ala.2002)). “ ‘The authority to declare public policy is reserved to the Legislature, subject to limits imposed by the Constitution.’ ” Id. (emphasis added). See Rogers v. City of Mobile, 277 Ala. 261, 281, 169 So.2d 282, 302 (1964); Almon v. Morgan County, 245 Ala. 241, 245, 16 So.2d 511, 514 (1944) (“[T]he Legislature prescribes the State’s policy; the courts do not.”).

“Our laws of descent and distributions are of statutory creation, and ... the status of parent and child has always influenced legislative action in determining what shall become of the property of those who die intestate.... ” Prince v. Prince, 188 Ala. 559, 560, 66 So. 27, 28 (1914) (emphasis added). See also Woodliff v. Dunlap, 187 Ala. 255, 259, 65 So. 936, 938 (1914) (“[T]he subjects of descent and distribution are of statutory control....”).

The legislature has unambiguously declared it to be the policy of this State that, except in one instance immaterial to this case, an adoption severs a child from its natural lineage for purposes of intestate succession. The wisdom or folly of that declaration is of no legitimate concern to the judiciary. Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944). The judiciary’s duty is merely to enforce the policy as declared in § 43-8-48(1).

For these reasons, the judgment of the trial court is reversed, and this cause is remanded with directions to enter a judgment in favor of Ellis.

REVERSED AND REMANDED WITH DIRECTIONS.

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

COBB, C.J., concurs specially.

COBB, Chief Justice

(concurring specially).

I write to note that I must reluctantly conclude that the plain language of § 43-8-48, Ala.Code 1975, does compel the harsh and unfair result of disinheriting the children in this case. Moreover, although I do not believe that in enacting § 43-8-48 the legislature intended to disinherit children in the situation presented here, my duty as a judge does not permit me to “read into a statute what the Legislature has not written,” Elmore County Comm’n v. Smith, 786 So.2d 449, 455 (Ala.2000), and I cannot honestly construe § 43-8-48 in pari materia with the provisions in Alabama’s Adoption Code, Ala.Code 1975, § 26-10A-1 et seq., so as to arrive at a more just and equitable result. Because I recognize that the courts are not the branch of our government charged with the duty of enacting statutory law, I call upon our legislature to consider modifying the exception in § 43-8-48(1) for adoptions by the spouse of a natural parent to include adoptions by relatives, as noted in § 26-10A-28.

      . Agnes West is a grandparent, and Albert West is not the "spouse of a natural parent.”

      . Also immaterial is the fact that the children's deceased mother did not consent to the adoption, a matter about which the trial court expressed some concern. Under Ala. Code 1975, § 26-10A-10(4), no consent to, or relinquishment of parental rights for, adoption is required of a "deceased parent or one who is presumed to be deceased under Alabama law.”

      . " ' ‘TOo declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative.” ’ ” City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (quoting Sanders v. Cabaniss, 43 Ala. 173, 180 (1869), quoting in turn Thomas M. Cooley, Constitutional Limitations 91-95 (1868)).

      . In pertinent part, § 26-10A-28 provides that "[a] grandfather, a grandmother, great-grandfather, great-grandmother, great-uncle, great-aunt, a brother, or a half-brother, a sister, a half-sister, an aunt or an uncle of the first degree and their respective spouses, if any[,] may adopt a minor grandchild, a minor brother, a minor half-brother, a minor sister, a minor half-sister, a minor nephew, a minor niece, a minor great-grandchild, a minor great niece or a minor great nephew....”


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Sylvia FRIEDMAN and Joseph Friedman v. Vivian K. FRIEDMAN.
    1050043.
    Supreme Court of Alabama.
    April 27, 2007.

      Jack Floyd of Floyd, Floyd & Floyd, Gadsden, for appellants.
    Carla M. Handy of McCord & Martin, Gadsden, for appellee.
   COBB, Chief Justice.

Sylvia Friedman and Joseph Friedman, the plaintiffs in a detinue and conversion action in the Etowah Circuit Court, appeal from a judgment entered in favor of the defendant, Vivian K. Friedman, after a trial at which evidence was presented ore tenus. We affirm.

I. Background,

Vivian Friedman was married to Dr. Howard Friedman, Sylvia and Joseph Friedman’s son. Howard and Vivian owned a house in Jefferson County, as well as a house in Rainbow City in Etowah County. Howard, an anesthesiologist in Gadsden, would stay at the Rainbow City house when he worked late or was on call at the hospital. Sylvia and Joseph lived in New York.

On February 8, 1996, Howard purchased an American Security Products Company (“AMSEC”) brand safe from Byrd Lock and Key and placed it in the basement of the Rainbow City house. In this safe Howard kept his collection of firearms, as well as personal documents. On or about October 18,1996, Joseph purchased a Mos-ler brand safe from Byrd Lock and Key and placed it in the basement of Howard and Vivian’s Rainbow City house. Sylvia and Joseph named Howard as the executor of their respective estates, and Joseph purchased the safe to store their wills, as well as other estate-planning documents and placed it in Howard and Vivian’s Rainbow City house to allow Howard access to these documents. Joseph and Sylvia gave Howard the combination for the safe.

On or about March 27, 1997, Sylvia and Joseph drove from their house in New York to Birmingham to attend the bar mitzvah of Howard and Vivian’s son. According to Sylvia, she brought several items of expensive jewelry with her from New York to wear to the various functions associated with the bar mitzvah. On Sunday, March 30, 1997, Sylvia and Joseph drove from Birmingham to Howard and Vivian’s house in Rainbow City, where they stayed Sunday and Monday. Sylvia claims that while she was there she placed her jewelry in manila folders and placed the folders in the Mosler safe. Specifically, Sylvia says she placed in' the safe an emerald ring worth $173,088, a Concord brand gold watch worth $2,700, a pendant worth $7,300, a pair of earrings worth $4,675, and a set of five rings that had belonged to Sylvia’s mother. Sylvia also placed in the safe three sheets of 1948 Israeli stamps worth $83,000. The stamps had belonged to Sylvia’s father, who died in 1977, and her brother had given them to her at the bar mitzvah. Howard testified that he witnessed his parents placing these items in the Mosler safe.

On Tuesday, April 1, 1997, Sylvia and Joseph left Rainbow City for a trip to Atlanta. Their plan was to return to Rainbow City after a few days, retrieve the jewelry and stamps, and return to New York. However, while they were in Atlanta, their youngest son, an orthodontist who shares a practice with Joseph, telephoned complaining of chest pains and asked Joseph to return to New York to help with the practice. Sylvia and Joseph drove directly from Atlanta to New York without returning to Rainbow City to retrieve the jewelry and stamps they had placed in the Mosler safe.

In June 1997, Howard and Vivian were experiencing marital problems. Vivian consulted an attorney, who advised her to locate documents relating to all marital property. Vivian was unable to locate many documents relating to the marital property and presumed that they were at the Rainbow City house. On June 5, 1997, while Howard was on a rafting trip in Colorado with two of the couple’s sons, Vivian went to the Rainbow City house, where she found the two safes. Vivian testified that she had never seen the safes and that she did not know that one of the safes belonged to Sylvia and Joseph. In fact, the only safe she had been aware was located in the Rainbow City house was Howard’s AMSEC gun safe. Vivian contacted Ronald Jewell, a locksmith in Birmingham, and asked him to meet her at the Rainbow City house on June 6. Jewell testified that Vivian told him that the safes had been damaged when • the basement flooded and that they could not be opened. Jewell met Vivian at the Rainbow City house and opened the safes for her. The combination was already dialed in the AM-SEC safe, so Jewell was able to open it by picking the lock. Jewell testified that he did not attempt to see what was in the safe, but was able to discern that either rifles or guns were in the. AMSEC safe. Jewell then proceeded to drill the Mosler safe and open it. Jewell did not look at anything in the Mosler safe,- but he did see Vivian removing papers from the safe as he was taking his tools out of the house. According to Jewell, the safes did not appear to have any flood damage, and, given how Vivian was acting, he believed the situation to be a divorce matter.

Vivian removed the guns and ammunition from the AMSEC safe and took them back to Birmingham. She also went through the documents in the Mosler safe and removed the ones she determined related to marital assets and took them back to Birmingham to have them photocopied. When she returned to Birmingham, she telephoned the Mountain Brook police department and asked them to hold the guns for safekeeping. On June 8, 1997, Vivian returned to the Rainbow City house and replaced some of the items in the safes. She testified that she kept some items, however, “as evidence.” Specifically, she kept canceled checks, which she believed documented the transfer of marital assets to Howard’s immediate family, as well as items such as books on obtaining a second passport and how to transfer assets into offshore accounts.

Howard and the couple’s sons returned from their rafting trip on the evening of June 8. At approximately 9:00 or 10:00 that night, Howard entered the study of the Birmingham house to use the copier and found that Vivian had inadvertently left a document that had been in one of the safes on the copier. Howard immediately left the Birmingham house and drove to Rainbow City, where he found that the safes had been entered. Howard testified that “a lot” of the contents were missing from the safes, including Joseph and Sylvia’s wills and estate-planning documents, Sylvia’s jewelry, and the Israeli stamps. Howard telephoned the Rainbow City police to report the entry into the safes, and a police report was made at 2:37 a.m.

Vivian testified at trial that none of the items Joseph and Sylvia claimed were missing from the Mosler safe were in the safe when she entered it and that she did not take any of the items Joseph and Sylvia claim are missing.

“[PLAINTIFFS’ COUNSEL]: And I want to know if any of those items listed in there are in your possession or have been in your possession since June 6, 1997, or if you took them out or returned them?
“[VIVIAN]: None of those items were there, and I can tell you for sure if I had the financial information on [Joseph and Sylvia] Friedman[ ] it would have come out in my divorce trial. I would have loved to have that information.”
“[PLAINTIFFS’ COUNSEL]: Now, as I understand, what you’re saying is that whatever you took to Birmingham, part of it you kept and the rest of it you brought — Did you bring the originals back or did you bring copies back?
“[VIVIAN]: I brought mostly originals back. I kept a few checks. I have the originals of the checks of $20,000 to [Howard’s brother and sister-in-law] and the multiple $10,000 checks to everybody else in the family. I kept those originals.
“I kept some of the books on how to illegally obtain a second passport, how to transfer your assets overseas.”
“[DEFENSE COUNSEL]: Did you find Israeli stamps and take them?
“[VIVIAN]: No.
“[DEFENSE COUNSEL]: Did you find any jewelry in these safes and take [it]?
“[VIVIAN]: No.
“[DEFENSE COUNSEL]: Either in the gun safe or Mosler safe?
“[VIVIAN]: No. And there was cash in there, and I did not take it.”

Subsequent to the incident that is the subject of the underlying cause of action, Howard and Vivian became embroiled in a bitter divorce, and the marriage was dissolved in 1999 or 2000.

Although a police report was prepared, no criminal charges were ever brought in relation to the unauthorized entry into the safes. Instead, Joseph and Sylvia brought this detinue and conversion action against Vivian in the Etowah Circuit Court on January 23, 1998. The trial court heard ore tenus testimony on May 27, 2003, October 2, 2003, and August 19, 2004. On July 1, 2005, the trial court entered a judgment in favor of Vivian Friedman. On July 22, 2005, Joseph and Sylvia filed a motion to alter, amend, or vacate the judgment, as well as a motion for a new trial pursuant to Rule 59, Ala. R. Civ. P. The trial court denied their motions on September 12, 2005. They appealed.

II. Standard of Review

The evidence in this case was presented to the trial judge in a bench trial. “ ‘When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.’” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)); see also First Nat'l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987). As this Court has stated:

“‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, “that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.” Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).

III. Analysis

Joseph and Sylvia argue that the trial court’s judgment “was contrary to the law and the facts.” (Joseph and Sylvia’s brief, p. 4.) In summary, Joseph and Sylvia argue that because possession, once established, is continuous in nature, it must be presumed that the items in question were in the Mosler safe when Vivian entered the safe and that Vivian’s testimony was implausible, given what they allege is her lack of truthfulness. In other words, Joseph and Sylvia ask this Court to reweigh the evidence, which is something this Court cannot and will not do.

“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court....” ’ Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). ‘When the evidence in a case is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004).

Next, Joseph and Sylvia argue that to obtain a judgment in detinue at common law, they must prove only that they owned the chattel in question and that they are entitled to possess it. We disagree.

Joseph and Sylvia correctly note that “[t]he statutory action of detinue combines the common-law actions of detinue and replevin. Common-law detinue still exists in this state and does not involve recovery of property at the time of suit but only after judgment.” Richardson v. First Nat’l Bank of Columbus, Ga., 46 Ala.App. 366, 371-72, 242 So.2d 676, 680 (Civ.1970). However, they argue that, under common-law detinue, they are not required to prove that Vivian was in possession of the property in question when the complaint was filed in the underlying action; that proof is required under statutory detinue, as codified at § 6-6-250 et seq., Ala.Code 1975. In support of their argument, they cite a litany of cases in which the only elements of detinue mentioned are ownership and the right of immediate possession. See, e.g., Steger v. Everett Bus Sales, 495 So.2d 608 (Ala.1986); Hollingsworth v. Case, 267 Ala. 165, 100 So.2d 772 (1958); Hollimon v. McGregor, 225 Ala. 517, 143 So. 902 (1932); La Rue v. Loveman, Joseph & Loeb, 220 Ala. 2, 127 So. 241 (1929); Minge v. Clark, 193 Ala. 447, 69 So. 421 (1915); Bruce v. Bruce, 95 Ala. 563, 11 So. 197 (1892); and Hooper v. Britt, 35 Ala.App. 612, 51 So.2d 547 (1951). Other cases involving common-law detinue include proof that the defendant had wrongfully taken possession of the chattel. See, e.g., Thrasher v. Thrasher, 674 So.2d 595 (Ala.Civ.App.1995); Central Bank of the South v. Patterson, 607 So.2d 204 (Ala.1992); and Murray v. Dempsey, 521 So.2d 1345 (Ala.Civ.App.1988).

The Court of Civil Appeals addressed the origin of these diverging lines of cases regarding detinue in Ray v. Blackwell, 521 So.2d 44 (Ala.Civ.App.1988). In Ray the Court of Civil Appeals noted:

“The legal issue is whether it was incumbent upon the plaintiff to prove that this defendant was in possession of the rig at the time of the filing of this suit.
“A number of Alabama cases hold that, in order for the plaintiff to be successful in a detinue action, the plaintiff must prove, as of the time he filed his case, that he had a general or special property right in the chattel sued for, that he had a right to its immediate possession, and that the defendant had possession of the property. For examples, see Galleon Industries, Inc. v. Lewyn Machinery Co., 50 Ala.App. 334, 279 So.2d 137, cert. denied, 291 Ala. 779, 279 So.2d 142 (1973); and Chrysler Credit Corporation v. Tremer, 48 Ala.App. 675, 267 So.2d 467 (1972).
“On the other hand, other Alabama cases state that the legal title to personal property and the right to its immediate possession are sufficient to support an action of detinue. For example, see Cornelius v. Copeland, 274 Ala. 337, 148 So.2d 620 (1963).
“One probable reason for any apparent conflict in those two lines of cases was occasioned by a prior code section as to the effect of a plea of the general issue in a detinue case. It was provided in Title 7, Section 934, of the Codes of 1940 and 1958 that, where a defendant filed a plea of the general issue, such plea admitted the possession of the suit property by the defendant at the commencement of the suit. Chrysler Credit Corporation, supra. That code section is not included in the 1975 Code of Alabama.
“In Cornelius, supra, the defendants had filed pleas of the general issue; hence it was admitted by the defendants under the then applicable statutory pleading rule that they possessed the property in issue at the time the plaintiff instituted his case. Accordingly, it was not necessary in Cornelius to state that possession by the defendants was one of the essential elements for the plaintiff to prove in order to support his detinue action.”

521 So.2d at 45.

We agree with the Court of Civil Appeals that common-law detinue has always included possession of the subject chattel by the defendant as an element. In the cases cited to this Court by Joseph and Sylvia for the proposition that no proof of such an element is required in common-law detinue, it was either undisputed that the defendant was in possession of the subject chattel or the defendant had pleaded the general issue, thereby admitting possession.

Under the interpretation of common-law detinue advanced by Sylvia and Joseph, one could randomly select any individual against whom to bring a detinue action and successfully obtain a judgment against that individual so long as the plaintiff had an ownership interest in some piece of property, had an immediate right to possession of the property, and the property was missing. That is not the law of this State, nor has it ever been the law of this State. Joseph and Sylvia were required to prove that Vivian had wrongfully taken the jewelry and stamps and that she was, at the time they filed their action, in possession of them. After a careful review of the record, this Court finds no indication that the trial court’s judgment was clearly erroneous and against the great weight of the evidence.

Joseph and Sylvia argue further that Vivian raised the general issue as a defense and therefore admitted that she was in possession of the jewelry and stamps. They argue that, although the statute formerly found in Title 7, § 934, Ala.Code 1940, was not carried forward in the Alabama Code 1975, the principle that merely raising the general issue is an admission of possession is so ingrained in the caselaw regarding common-law detinue, which has not been explicitly overruled, that it remains the law in Alabama.

“A plea of the general issue denies allegations of each count of the complaint and requires proof of material allegations thereof.” Pasquale Food Co. v. L & H Int’l Airmotive, Inc., 51 Ala.App. 127, 135, 283 So.2d 438, 445 (Civ.1973). Vivian did not plead the general issue. In her answer, Vivian specifically denied the allegations in each paragraph of the complaint and raised three affirmative defenses. Thus, Joseph and Sylvia’s argument is without merit.

Even had Vivian pleaded the general issue in her answer, however, Joseph and Sylvia’s argument would still be without merit. Although this Court has never explicitly overruled the line of cases regarding pleading the general issue in a detinue case, it has been superseded by rule as well as by action of the legislature. Appendix II, “Statutes and Rules Superseded,” of the Alabama Rules of Civil Procedure, states:

“The following statutes or parts thereof are superseded by the Alabama Rules of Civil Procedure in Courts subject to the Alabama Rules of Civil Procedure.
“Title 7 ARCP
“§ 934 Rule 8 Effect of General Issue in Detinue Suit.”

Likewise, § 1-1-10, Ala.Code 1975, states in pertinent part: “Subject to the provisions of this section, or as may be otherwise provided in this Code, all statutes of a public, general and permanent nature, not included in this Code, are repealed.” Because the statute found in Title 7, § 934, Ala.Code 1940 (Recomp.1958), is found nowhere in the Alabama Code 1975, it was repealed. Thus, the plea of the general issue by a defendant in an answer no longer frees a plaintiff from establishing possession by a defendant in a detinue action.

Finally, Joseph and Sylvia argue that the trial court erred in not awarding them damages based on Vivian’s having the Mosler safe drilled to open it. Specifically, they claim they “pleaded conversion specifically, alleged the wrongful interference Vivian Friedman committed, and they proved at trial that she damaged the safe intentionally.” (Joseph and Sylvia’s brief, p. 17.) They go on to state: “The Joseph Friedmans then specifically called out the expense of $200 that it cost to repair the safe in their request for damages.” (Joseph and Sylvia’s brief, pp. 17-18.) No reference to the record accompanies these observations. Also, nowhere in the statement of facts in Joseph and Sylvia’s brief does it reference the damage to the safe.

This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed. Johnson v. Stewart, 854 So.2d 544, 551-52 (Ala.2002) (“Initially, the appellant’s brief must include ‘[a] full statement of facts relevant to the issues presented for review, with appropriate references to the record.’ Rule 28(a)(7) (emphasis added) .... Also, the argument of each party must contain ‘the contentions of the [party] with respect to the issues presented, and the reasons therefor, with citations to the ... parts of the record relied on.’ Rule 28(a)(10) (emphasis added) _ Obviously, “‘this Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.” ’ Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914, 920 (Ala.2002) (quoting Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987)).”). Because Joseph and Sylvia failed to comply with the rudimentary requirement of Rule 28, Ala. R.App. P., we need not address this claim.

IV. Conclusion

As to the issues before us, the trial court correctly applied the law to the facts, and its conclusion is not clearly erroneous or against the great weight of the evidence. We therefore affirm its judgment.

AFFIRMED.

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

      . This case was originally assigned to another Justice on this Court; it was reassigned to Chief Justice Cobb on January 17, 2007.

      . The Code of 1940 was recompiled in 1958, and the statute retained the same title and section number in the 1958 recompilation.


author: MOORE, Judge.

text:
    Robert Carl SALTER v. STATE of Alabama and Tuscaloosa County Sheriff's Office.
    2050539.
    Court of Civil Appeals of Alabama.
    May 4, 2007.

      Robert Carl Salter, pro se.

      Robert M. Spence of Hubbard, Smith, Mcllwain, Brakefield & Browder, P.C., Tuscaloosa, for appellee Sheriff Edmund M. “Ted” Sexton, Sr.
    Troy King, atty. gen., and Josh Bearden, asst. atty. gen., for the State of Alabama.
   MOORE, Judge.

Robert Salter appeals from a summary judgment denying his challenge to the constitutionality of the Community Notification Act, § 15-20-2Ó et seq., Ala.Code 1975 (“the CNA”), as that act is applied to him. We affirm.

Facts

On July 31, 1984, Salter entered a guilty plea to the charge of sodomy in the first degree of a 12-year-old girl and was subsequently sentenced to 10 years in the state penitentiary. At the time of that conviction, Salter was 26 years old.

Salter served nine years and nine months of his sentence and was released in 1995. After his release from prison, Salter initially resided in the basement of his mother’s house in Tuscaloosa County while he made repairs to the house he had occupied before he began serving his prison sentence.

In 1996, Salter moved into the house he had been repairing, which the parties referred to throughout this litigation as “the big house.” The big house is located in Tuscaloosa County on a one-acre parcel of land that was owned by Salter. This 1-acre parcel of land adjoins a 12-acre parcel of land that is owned by Salter’s mother. A portion of the big house rests across the boundary line between the l-acre parcel of land and the 12-acre parcel of land.

At some point after Salter had. estaba lished his residency at the big house, a child-care center, opened within 2,000 feet of the big house. In March 2003, the child-care center changed names, but it remained in the same location under different ownership.

In July 2003, after he had defaulted on a mortgage on the big house, Salter was evicted from the big house by the new owner, who had purchased the property at a foreclosure sale. Salter subsequently moved into a structure referred to by the parties as “the little house.” The little house is located 50 feet from the big house, entirely within the 12-acre parcel of land owned by Salter’s mother, but is still within 2,000 feet of the building that houses the child-care center.

The Tuscaloosa County Sheriffs Office informed Salter that his change of residence violated the CNA because his new residence was within 2,000 feet of a licensed child-care facility. See § 15-20-26(a), Ala.Code 1975. Salter therefore left the little house and moved in with a friend in October 2003. His mother subsequently repurchased the big house. Salter plans to move back into the big house with his mother’s permission. Salter filed this action against the State of Alabama and the Tuscaloosa County Sheriffs Office (hereinafter. collectively referred to as “the State”) challenging the constitutionality of the CNA as it applied to him. The trial court entered a summary judgment for the State, and Salter appeals.

Standard of Review

We review a summary judgment de novo; we apply the same standard applied by the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992), If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975.

Analysis

Section 15-20-26(a) of the CNA provides that “[u]nless otherwise exempted by law, no adult criminal sex offender shall establish a residence ... within 2,000 feet of the property on which any school or child care facility is located.” The evidence presented in this case establishes without dispute that Salter, an adult criminal sex offender, established a residence within 2,000 feet of property on which a child-care facility was located when he moved into the little house, thus violating § 15-20-26(a). On its face, the language of that subsection would likewise prohibit Salter from moving back into the big house because he would again be establishing a residence within 2,000 feet of the property on which a child-care facility is located. The only way Salter can legally reside in either the little house or the big house is if this court determines that § 15-20-26(a) of the CNA is unconstitutional as applied to Salter.

Standing

Salter asserts that, as applied to his situation, the CNA violates three of his constitutional rights: the right to reside with his wife; the right to use and enjoy his property; and the right to work where he wants.

“Appellate courts will not pass upon a constitutional question unless some specific right of the appellant is directly involved.” State v. Woodruff, 460 So.2d 325, 328 (Ala.Crim.App.1984). A plaintiff must have “ ‘standing to invoke the power of the court in his behalf.’ ” Ex parte State ex rel. James, 711 So.2d 952, 960 (Ala.1998) (quoting Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990)). “Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)) (emphasis omitted). “When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d at 1028 (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 626 (Tex.1996)). The party asserting a constitutional challenge must demonstrate standing at all stages in the litigation, even prior to trial. State v. Woodruff, 460 So.2d at 328; see also National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (“Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.”).

In J.L.N. v. State, 894 So.2d 751 (Ala.2004), our supreme court ruled that an adult criminal sex offender did not have standing to assert that the residency requirements of the CNA violated his fundamental right to marry. The sex offender in that case did not present any evidence indicating that he had married or had attempted to marry. Instead, the evidence showed merely that the sex offender was cohabiting with his victim in violation of § 15-20-26(b) and that they were engaged. Concluding that the sex offender did not have a constitutional right to cohabit with his victim, the court dismissed the constitutional challenge due to lack of standing. 894 So.2d at 754 n. 4.

In the present case, Salter asserts in his brief to this court that he has established a common-law marriage with a woman who lived with him in the big house and who moved with him into the little house; Salter argues that, because he has been deprived of his right to reside with his spouse, he has the necessary standing to assert a constitutional argument that application of the CNA violates one of his fundamental marital rights. The State refutes that contention, claiming that Salter has not established a common-law marriage and, thus, that he lacks the necessary standing in this case.

The record does not contain any of the evidentiary materials filed by the State allegedly supporting its position that Salter has not entered into a common-law marriage. However, in the absence of a complete record, this court must assume that the trial court had before it such evidence and facts as would support its judgment. See Stevenson v. Buryn, 530 So.2d 832 (Ala.Civ.App.1987). Consequently, this court must assume that the State made a prima facie showing that Salter was not involved in a common-law marriage. Accordingly, the burden shifted to Salter to present substantial evidence to create a genuine issue of material fact as to that issue.

In his brief, Salter does not direct this court to any evidence that supports his alleged common-law marriage; thus, Salter has failed to comply with Rule 28(g), Ala. R.App. P. Despite Salter’s failure to comply with the Alabama Rules of Appellate Procedure, this court has nevertheless undertaken a review of the entire record to determine if, in fact, Salter presented substantial evidence of a common-law marriage. The only evidentiary material contained in the record is a five-page affidavit signed by Salter in which he repeatedly refers to his “wife”; however, this affidavit contains no facts to support the conclusion that the woman with whom he resided was, in fact, his common-law wife. Mere con-clusory statements of alleged facts do not constitute substantial evidence of the facts asserted. See Brown ex rel. Brown v. St. Vincent’s Hosp., 899 So.2d 227, 238-39 (Ala.2004) (quoting Reid v. Jefferson County, 672 So.2d 1285, 1290 (Ala.1995)). Accordingly, this court finds that Salter did not present substantial evidence of a common-law marriage that would give rise to the constitutional rights he alleges the CNA violates.

As for Salter’s contention that he has lost the use and enjoyment of his land, the parties do not dispute that, because of his failure to meet his mortgage obligations, Salter no longer has any ownership interest in the land on which the big house is located. His mother now owns that land. The record further fails to disclose any alleged legally protectable interest Salter may have in the land other than his plan to reside on the land with his mother’s permission. Likewise, the undisputed evidence shows that Salter has no property interest in the little house because it is located on land owned entirely by his mother.

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the United States Supreme Court explained that standing requires proof that the plaintiff suffered an

“ ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, see [Allen v. Wright, 468 U.S. 737,] at 756 [ (1984) ]; Worth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41, n. 16 (1972); and (b) ‘actual or imminent, not “conjectural” or “hypothetical,” ’ Whitmore [v. Arkansas,] 495 U.S. [149,] at 155 [ (1990) ] (quoting Los Angeles v. Lyons, 461 U.S. 95 (1983)).”

(Footnote omitted.) Accordingly, we must conclude that Salter does not have a legally protected interest in the big house or the little house that would support his constitutional challenges to the CNA.

As for Salter’s argument that the CNA impairs his right to work where he wants, the record contains no evidence indicating that the CNA has impeded Salter’s job opportunities. Salter presented no evidence indicating that he has looked for a job, has applied for a job, has been rejected for a job, or has had a job offer rescinded on the basis of the application of the residency requirements or other requirements of the CNA. Salter cites no caselaw concluding that the CNA generally impairs employment possibilities. Cf. Smith v. Doe, 538 U.S. 84, 100, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (concluding that Alaska’s community-notification act did not cause any employment disadvantages for adult criminal sex offenders). Salter also failed to raise this argument at the trial-court level, which precludes appellate review. Rule 4(a)(3), Ala. R.App. P.; Shiver v. Butler County Bd. of Educ., 797 So.2d 1086, 1088 (Ala.Civ.App.2000).

For the foregoing reasons, we conclude that Salter lacks standing to assert that application of the CNA violates his marital, property, and employment rights.

Ex Post Facto and Double Jeopardy Arguments

Salter asserts that the CNA violates the prohibition against ex post facto laws contained in Article I, § 10 of the United States Constitution, which states, in pertinent part: “No state shall ... pass any ... ex post facto Law.” Salter also makes a cursory assertion that the CNA subjects him to dual punishment in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which states, in part: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life and limb.”

In Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140, the Supreme Court recognized that whether a statute violates the Ex Post Facto Clause or the Double Jeopardy Clause depends on resolution of the same question: Does the statute unconstitutionally impose a second punishment for the same criminal offense? If the statute is merely intended by the legislature to establish a civil regulatory scheme and is not punitive in nature or effect, it will be upheld as a constitutional exercise of legislative power. The party asserting the unconstitutionality of the statute must show “the clearest proof’ that a statute intended to create a civil regulatory scheme is actually a punitive criminal act. 538 U.S. at 92, 123 S.Ct. 1140.

In State v. C.M., 746 So.2d 410 (Ala.Crim.App.1999), the Alabama Court of Criminal Appeals held that the CNA violated the Ex Post Facto Clause by punishing juveniles convicted of sex crimes before its enactment. Salter argues that, because he was convicted before the CNA was enacted, the decision in C.M. bound the trial court to find that the CNA violates his constitutional right against being punished a second time for his original sex crime. That argument is misplaced. Salter is not a juvenile criminal sex offender. See § 15-20-21(7), Ala.Code 1975 (defining “juvenile criminal sex offender” as “[a]n individual adjudicated delinquent of a criminal sex offense”). By virtue of his conviction of “Sodomy I” at the age of 26, Salter is classified as an “adult criminal sex offender.” See § 15-20-21(1), Ala. Code 1975 (defining “adult criminal sex offender” as “[a] person convicted of a criminal sex offense”). Hence, the holding in C.M., which emanated from an analysis tailored specifically to issues relating to juvenile criminal sex offenders, is not dis-positive of this appeal.

Rather, the decision in Lee v. State, 895 So.2d 1038 (Ala.Crim.App.2004), controls the outcome of this case. In Lee, the Alabama Court of Criminal Appeals relied heavily on Smith v. Doe, supra (rejecting an argument by two adult criminal sex offenders that Alaska’s community-notification act violated the prohibition against ex post facto laws), to conclude that the CNA was not an ex post facto law, either facially or as applied to the appellant in that case, who was an adult criminal sex offender. The court held that the CNA was intended to create a civil regulatory scheme and that it did not have any punitive effect on the appellant that negated the legislative intent of the act. 895 So.2d at 1042-43. See also Boyd v. State, 960 So.2d 717 (Ala.Crim.App.2006) (reaffirming Lee v. State, supra).

As in Lee and Boyd, Salter has failed to present any evidence indicating that the CNA is intended as a punitive criminal statute. The goal of the CNA, as set out in § 15-20-20.1, and as recognized in Lee, is to protect communities and their most ■vulnerable citizens, children, from the proven danger of recidivism by criminal sex offenders. Lee, 895 So.2d at 1042. As such, the CNA is intended as a civil scheme. Id.

Also as in Lee and Boyd, Salter has failed to present substantial evidence indicating that the residency requirements of the CNA have a punitive effect on him. In Lee, supra, the Court of Criminal Appeals, in analyzing the punitive impact of the residency requirements of the CNA, followed the reasoning in Smith v. Doe, supra, which, in turn, relied on the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as pertinent to its determination whether a purportedly civil regulatory scheme actually imposed punishment on those affected by it:

“‘The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.’ ”

Lee, 895 So.2d at 1042 (quoting Doe, 538 U.S. at 97, 123 S.Ct. 1140, citing in turn Kennedy v. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554).

In this case, Salter asserts only that the CNA punishes him by depriving him of his right to reside with his common-law wife and by depriving him of his right to use and enjoy his land. He has failed to argue or present any evidence as to any Mendoza-Martinez factor other than alleging “an affirmative disability or restraint.” As we have already concluded, Salter has not presented substantial evidence of a common-law marriage or of a property right in the big house or the little house. Even if he had, Salter has not proven that the requirements of the CNA prevent him from establishing another residence in Tuscaloosa County with his alleged wife, even assuming that such proof would establish “an affirmative disability or restraint.” Consequently, we must conclude that the CNA does not impose punishment on Salter in violation of the Ex Post Facto Clause.

Likewise, because the CNA cannot be considered a punitive statute in either intention or effect, enforcement of its resi-deney requirements against Salter cannot be classified as a violation of his constitutional right against double jeopardy. See, e.g., State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000) (holding that once a community-notification act is determined to be nonpunitive, the Double Jeopardy Clause is inoperative); Commonwealth v. Kopicz, 840 A.2d 342 (2003) (accord).

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment.

AFFIRMED.

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


text:
    Denise GREEN v. ESTATE OF Martha Mae NANCE.
    2050833.
    Court of Civil Appeals of Alabama.
    May 4, 2007.

      Scott M. Speagle of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Maryanne M. Prince, Montgomery, for appellee.
   MOORE, Judge.

Denise Green appeals from the circuit court’s denial of her motion for an inventory and her motion for payment of her distributive share of the estate of her mother, Martha Mae Nance (“Nance”). -

Facts

Nance executed her will on November 16, 1993. Her will stated, in pertinent part:

“THIRD: I give all tangible personal property owned by me at the time of my death (except cash, money market accounts, certificates of deposit, savings and checking accounts and other cash equivalents), including without limitation personal effects, clothing, jewelry, furniture, furnishings, chinaware, silverware, household goods, automobiles and other vehicles, together with all insurance policies relating thereto, to ... those of my children (DENISE N. GREEN, CINDY D. MARSH, and JACK D. NANCE, JR.) who survive me, in substantially equal shares, to be divided among them as they shall agree, or if they cannot agree, as my Executor shall determine. I have already determined the beneficiaries to my life insurance and savings accounts, and they are named on those policies and accounts.
“FOURTH: I give all the rest, residue and remainder of my property and estate, both.real and personal, of every kind and wherever located, to which I shall be in any manner entitled at the time of my death (collectively referred to as my ‘residuary estate’), as follows:
“(a) To those of my children who survive me and to the issue who survive me of those of my children who shall not ,. survive me, per stirpes.
“SIXTH: I appoint my son, JACK D. NANCE, JR., to be my Executor. I vest in my Executor herein named full power and authority to handle, manage and deal with my estate as. freely as I could act if I were living. Such power and authority may be exercised independently and without the prior or subsequent approval of any court or judicial authority. No one dealing with my Executor shall be required to inquire into the propriety of any action taken by my Executor. I direct that no Executor shall be required to file,or furnish any bond, surety or other security in any jurisdiction.”

(Capitalization in original.) After Nance died on May 31, 2005, her will was submitted for probate and the Montgomery Probate Court issued letters testamentary to Jack D. Nance, Jr. (“the executor”).- Subsequently, the action was removed to the Montgomery Circuit Court.

Denise Green filed a motion for an inventory in the probate court; after the action was removed to the circuit court, she filed a motion requesting the same relief in the circuit court. The circuit court denied the motion on the ground that the express terms of the will relieved the executor of the duty to file an inventory. Green then moved the court for payment of her distributive share of Nance’s estate, which included the proceeds from the sale of Nance’s house. The circuit court denied the motion for payment and reiterated its denial of the motion for an inventory. The order denying Green’s motions also stated:

“Pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the Court has determined there is no just reason for delay in the entry of final judgment and directs that judgment heretofore entered in favor of the Executor of the Estate of Martha Mae Nance, on the above motions, is hereby made final and the Court directs an entry of final judgment in favor of the Executor of the Estate of Martha Mae Nance.”

Green now appeals the denial of both motions.

Discussion

Green first argues that the circuit court erred when it failed to require the exeeutor to file an inventory. Section 43-2-835, Ala.Code 1975, states:

“(a) Within two months after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall file an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to.any item.
• “(b) The personal representative shall send a copy of the inventory to interested persons who request it. If the testator, by express provision in the will to that effect, exempts the personal representative from filing an inventory, the personal representative shall not be required to file the initial inventory, or any supplement thereto, with the court, unless in the opinion of the court, the estate is likely to be wasted, to the prejudice of any interested person.”

The circuit court cited the third and the sixth paragraphs of the will in support of its conclusion that the will did not require the executor to file an inventory of the assets of the estate. Green argues that those paragraphs of the will do not excuse the executor from filing an inventory because, she says, they do not amount to an “express provision in the will” for purposes of the exemption set forth in § 43-2-835(b).

Although Green has presented this question to us in an appeal from a judgment certified as being final pursuant to Rule 54(b), Ala. R. Civ. P., we conclude that, because the circuit court’s order was actually an interlocutory order and because our determination of this question will likely affect the outcome of this case, the proper vehicle to review the circuit court’s denial of Green’s motion for an inventory is a petition for a writ of mandamus. See Ex parte C.L.J., 946 So.2d 880, 887 (Ala.Civ.App.2006) (“A petition for a writ of mandamus is the appropriate method for reviewing an interlocutory order.”). Therefore, we will review the question as though it had been properly presented to us in a petition for a writ of mandamus. See Vesta Fire Ins. Corp. v. Liberty Nat’l Life Ins. Co., 893 So.2d 395 (Ala.Civ.App.2003).

“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)....’
“Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). ‘Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion.’ State v. Cannon, 369 So.2d 32, 33 (Ala.1979).”

Ex parte Showers, 812 So.2d 277, 280 (Ala.2001). “Because mandamus is an extraordinary remedy, this court’s standard of review on a petition for a writ of mandamus is simply to determine whether the trial court has clearly abused its discretion.” Ex parte Winn-Dixie Montgomery, Inc., 865 So.2d 432, 434 (Ala.Civ.App.2003).

In the present case, the ■ circuit court construed the language in the third and sixth paragraphs of the will to mean that the executor has “the right to do whatever he wants to do under the will” and that, therefore, no inventory is required. We disagree. The rules of statutory construction are well established in Alabama. In 2006, the Alabama Supreme Court stated:

“ ‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”
‘Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)); see also Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n, 589 So.2d 687, 689 (Ala.1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm’n, 524 So.2d 357, 360 (Ala.1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984); Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534, 536 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer, & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala.1979). It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).’
“DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998).”

Tolar Constr., LLC v. Kean Elec. Co., 944 So.2d 138, 149-50 (Ala.2006).

Section 43-2-835(b), Ala.Code 1975, requires the personal representative of an estate to file an inventory unless “the testator, by express provision in the will to that effect, exempts the personal representative” from doing so, with certain exceptions thereto. Black’s Law Dictionary 620 (8th ed. 2004), defines “express” as “[c]learly and unmistakably communicated; directly stated.” The plain meaning of the language used in § 43—2—835(b) leads us to conclude that any provision of a will purporting to exempt the personal representative from filing an inventory must specifically speak to that requirement’ In other words, general language in a will that grants broad discretion to a personal representative in distributing property under that will will not satisfy the requirement in § 43-2-835(b) that there be an “express provision” exempting the personal representative from filing an inventory. Similarly, Ala.Code 1975, § 43-2-851(c), requires an “express provision in the will” to exempt the personal representative from posting bond.

In the present case, Nance included a provision in her will that spoke specifically to releasing the executor from “furnishing] any bond, surety or other security in any jurisdiction,” in compliance with § 43-2-851(c). However, there was no provision in her will that referenced the duty of the executor to file an inventory. Because we find that there is no express provision exempting the executor from filing an inventory, we conclude that the circuit court exceeded its discretion in denying Green’s motion requesting an inventory. Green has established a clear legal right to an inventory; therefore, we direct the circuit court to enter an order requiring the filing of an inventory of the assets of the estate with the court.

Green next argues that the circuit court erred in denying her motion for payment of her distributive share of her mother’s estate. Again, Green presents this question to us in an appeal from a judgment certified as being final pursuant to Rule 54(b). We conclude, however, that the order denying Green’s motion for payment was not appropriate for certification under Rule 54(b). Rule 54(b) provides, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987).”

The Alabama Supreme Court has stated:

“A Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” Clarke-Mobile Counties Gas Dist. v. Prior Energy

Schlarb v. Lee, 955 So.2d 418, 419 (Ala.2006). Nance’s estate has not yet been settled. Payment of Green’s share from the estate and the settlement of the estate are so closely intertwined that adjudicating the issues separately may cause inconsistent results. Therefore, we conclude that the denial of the motion for payment of Green’s share of the estate cannot stand as a final judgment under Rule 54(b) because the estate has not yet been settled. Because the circuit court’s denial of Green’s motion for payment was improperly certified as a final judgment, this portion of her appeal is dismissed.

Conclusion

We issue the writ of mandamus and direct the circuit court to vacate its order denying Green’s motion for an inventory and to enter an order requiring the filing of an inventory. We dismiss Green’s appeal from the circuit court’s denial of her application for payment of her distributive share of her mother’s estate.

PETITION GRANTED AND WRIT ISSUED; APPEAL DISMISSED.

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

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

      . Jack D. Nance, Jr., died on March 3, 2007. A suggestion of death was filed in this court on April 26, 2007.

      . Green also sought to require the executor to post a bond to secure the performance of his duties under the will. The circuit court denied that request; however, Green has not raised this issue on appeal.