text:
    G.B. and O.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2050451.
    Court of Civil Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Sept. 29, 2006.
    Certiorari Denied Jan. 5, 2007 Alabama Supreme Court 1060093.
   PER CURIAM.

G.B. (“the mother”) and O.B. (“the father”) (collectively “the parents”) appeal from the January 30, 2006, orders — each one entitled “Order on Adjudicatory Hearing” — entered by the Baldwin Juvenile Court regarding the dependency actions involving their three minor children.

The record indicates that on November 12, 2005, the juvenile court issued an oral pickup order for the parents’ three children. Then, on November 15, 2005, the Baldwin County Department of Human Resources (“DHR”) filed separate petitions alleging that each child was a “dependent” child. See § 12-15-1(10), Ala. Code 1975. On that same day, the juvenile court entered a written pickup order confirming its oral pickup order issued on November 12, 2005.

Also, on November 15, 2005, the juvenile court appointed a guardian ad litem to represent the interests of the children and an attorney to represent the parents. The record indicates that the juvenile court held the 72-hour hearing required by § 12-15-60, Ala.Code 1975, on November 15, 2005, and that the parents were represented by counsel at that hearing. The record does not include a copy of a transcript from the 72-hour hearing. However, the record indicates that at the close of the 72-hour hearing the juvenile court issued an oral order that was confirmed in writing and filed with the court clerk on January 10, 2006. The January 10, 2006, order, among other things, released custody of the children to the parents; ordered the parents to cooperate with DHR to schedule, develop, and implement an Individualized Service Plan (“ISP”); and ordered the mother to undergo a psychological evaluation. The January 10, 2006, order also indicated that the matter had been set for an “adjudicatory/disposition” hearing on January 9, 2006.

In late December 2005 — after the juvenile court issued its oral order regarding the 72-hour hearing but before it entered its written order on January 10, 2006 — the parents, proceeding pro se, filed two motions: one motion was styled as a “motion to dismiss based on lack of dependency status of [the] children!;] lack of jurisdiction by DHR and [the] courts!; and] request for appeal based on gross judicial error” and the other motion was styled as a “motion to dismiss supplement objection to additional gross judicial errors.” In those motions, the parents alleged, among other things, that the juvenile court lacked subject-matter jurisdiction over the matter because, they claimed, there was no evidence indicating that the children were dependent. The parents also asserted that they were being persecuted for their religious beliefs. On January 9, 2006, the parents, proceeding pro se, filed a motion for sanctions against DHR. In their January 9, 2006, motion, the parents sought sanctions for a variety of alleged constitutional violations.

The record indicates that the juvenile court held an adjudicatory hearing on January 9, 2006, and that the parents “aet[ed] as their own attorney together with their appointed co-attorney.” The record does not include a copy of a transcript from the January 9, 2006, hearing. However, the record indicates that at the close of the January 9, 2006, hearing the juvenile court issued oral orders that were confirmed in writing and filed with the court clerk on January 30, 2006. The January 30, 2006, orders, among other things, ordered that the children were to remain in the custody of the parents subject to certain restrictions and requirements set forth in those orders; that the parents were to cooperate with DHR in establishing an ISP for the children; and that the parents were to allow DHR to perform a home study on their home. In its January 30, 2006, orders, the juvenile court reserved the issue of dependency for “later adjudication” and stated that it would make a finding as to dependency at the time DHR reported back to the court the results of the home study on the parents’ home.

The parents appealed to the Baldwin Circuit Court on January 24, 2006. On appeal, the parents are proceeding pro se. On March 1, 2006, the circuit court entered an order transferring the appeal to this court. In its March 1, 2006, order, the circuit court found that the notice of appeal was timely filed and ordered, among other things, that the juvenile court transcribe the juvenile-court proceedings. On April 3, 2006, this court received a joint letter, dated March 30, 2006, from the juvenile-court judge and the court reporter stating that the juvenile-court proceedings could not be transcribed because some of the parties and witnesses could not be heard on an audiotape of those proceedings; the juvenile-court judge recommended that the case be transferred to the circuit court for a trial de novo. On April 5, 2006, this court entered an order transferring the ease to the circuit court for a trial de novo, pursuant to Rule 28(B), Ala. R. Juv. P.

On April 26, 2006, the parents filed a motion in this court requesting that they be permitted to proceed on appeal without a transcript. On April 27, 2006, this court entered an ordered stating, in part, that “[bjased on the [parents’] motion to proceed on the clerk’s record and [the parents’] statement that they do not request a transcript of the evidence, this Court’s order of April 5, 2006, transferring this case to the [c]ircuit [c]ourt ... for a trial de novo is hereby rescinded.”

On June 12, 2006, the parents filed in this court three motions: (1) a “motion to subpoena juvenile court cassette tape recording of official trial held on January 9, 2006 according to Alabama Rule of Appellate Procedure Rule 14”; (2) a “motion to compel testimony and affidavit from Laura Parker (DHR social worker) and Heather Brown (DHR caseworker) certificate of service Alabama Rule of Appellate Procedure Rule 10(d) [sic]”; and (3) a “motion for contempt of court as penalty for willful non-compliance with these rules and sanctions against juvenile court typist Melanie Guy according to Alabama Rule of Appellate Procedure Rule 48.” This court denied those motions on June 27, 2006, and the parents moved for a rehearing on July 7, 2006. On August 1, 2006, this court overruled their motions for a rehearing.

Recently, in P.B. v. P.C., 946 So.2d 896 (Ala.Civ.App.2006), this court dismissed an appeal as being from a nonfinal judgment when the juvenile court in its order had instructed several agencies to conduct investigations regarding the dependency action and to report their findings back to the juvenile court. Notably, in that case the juvenile court had instructed the Marshall County DHR to perform home studies on the parties’ homes. 946 So.2d at 898.

In P.B. v. P.C., this court stated:

“It is well-settled law that jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu. See, e.g., Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999). ‘An appeal ordinarily will lie only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.’ Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A pendente lite order is one made pending the litigation. C.L. v. D.H., 916 So.2d 622, 624 (Ala.Civ.App.2005).
“As this court has stated before, whether to grant a pendente lite order is in the trial court’s discretion, and our review of the trial court’s exercise of such discretion is by way of a petition for the writ of mandamus, because a pendente lite order is not a final judgment. Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala.Civ.App.1982).
“This appeal is from a nonfinal judgment. The underlying issues involved in this case have not been adjudicated by the juvenile court. The proper method of review of pendente lite orders is by a petition for the writ of mandamus. B.W.C. v. State Dep’t of Human Res., 582 So.2d 579, 580 (Ala.Civ.App.1991). The father has not sought a writ of mandamus in this case. Thus, this appeal must be dismissed. See B.W.C., 582 So.2d at 580 (dismissing an appeal from a pendente lite award of child custody); see also S.S. v. T.R.A., 716 So.2d 719, 720 (Ala.Civ.App.1998) (stating that, because the father did not seek a writ of mandamus, his appeal must be dismissed).”

946 So.2d at 898-99.

In the present case, in its January 30, 2006, orders, the juvenile court instructed DHR to perform a home study on the home of the parents, and the court reserved deciding the issue of dependency until the home study was completed and DHR reported back to the court the results of that home study. The underlying issues in this case, including a determination as to whether the children are dependent, have not been adjudicated by the juvenile court. Thus, the juvenile court’s January 30, 2006, orders are pendente lite orders, and this appeal is from nonfinal judgments. The proper method of review of pendente lite orders is by a petition for the writ of mandamus. The parents have not sought a writ of mandamus in this case. Therefore, this appeal must be dismissed. P.B. v. P.C., supra (citing B.W.C. v. State Dep’t of Human Res., 582 So.2d 579 (Ala.Civ.App.1991)); and S.S. v. T.R.A., 716 So.2d 719 (Ala.Civ.App.1998).

APPEAL DISMISSED.

All the judges concur.

      . The case-action summary indicates that the juvenile court issued an oral order regarding the 72-hour hearing on November 15, 2005; the January 10, 2006, written order stated that it was "issued and effective as of November 15, 2005, and confirmed this the 9th day of January, 2006.”

      . The January 30, 2006, orders stated that they were "issued and effective as of January 9, 2006, and confirmed this the 30th day of January, 2006.” The parents filed their notice of appeal on January 24, 2006, before the juvenile court had entered the written orders on January 30, 2006.

      . See note 2, supra.

      . We note that Rule 4(a)(4), Ala. R.App. P., provides that "[a] notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.”

      .We note that this court has previously held:
      "An appellate court does not presume error; the appellant has the affirmative duty of showing error. Perkins v. Perkins, 465 So.2d 414 (Ala.Civ.App.1984). Appellate review is limited to the record and cannot be altered by statements in briefs. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984). Error asserted on appeal must be affirmatively demonstrated by the record. If the record does not disclose the facts upon which the asserted error is based, the error may not be considered on appeal. Liberty Loan Corp. of Gadsden v. Williams, 406 So.2d 988 (Ala.Civ.App.1981). Additionally, evidence presented to the trial court that is not preserved in the record on appeal is conclusively presumed to support the trial court's judgment. English v. English, 352 So.2d 454 (Ala.Civ.App.1977).”

        Greer v. Greer, 624 So.2d 1076, 1077 (Ala.Civ.App.1993).

      . The record contains no evidence indicating that DHR performed a home study on the parents’ home; the record indicates that the parents were opposed to allowing DHR to perform the home study. Thus, the record contains no evidence indicating that DHR reported back to the court the results of any such home study. See Greer v. Greer, supra.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge.

license: Public Domain

text:
    David Leon WILLIAMS v. FOX TELEVISION STATIONS OF BIRMINGHAM, INC.
    2050205.
    Court of Civil Appeals of Alabama.
    Oct. 20, 2006.
    Certiorari Denied Jan. 12, 2007 Alabama Supreme Court 1060209.

      David Leon Williams, pro se.
    Gilbert E. Johnston, Jr., James P. Pew-itt, S. Shelton Foss, and Lee Elebash of Johnston Barton Proctor & Powell, L.L.P., Birmingham, for appellee.
   On Application for Rehearing

CRAWLEY, Presiding Judge.

The opinion of August 11, 2006, is withdrawn, and the following is substituted therefor.

David Leon Williams sued Fox Television Stations of Birmingham, Inc. (“Fox6”), and Fox6 employees Janet Hall and Rick Journey, alleging that he had been defamed in newscasts broadcast by Fox6. Williams originally attempted to serve Hall and Journey through Fox6’s authorized agent; Hall and Journey successfully moved to strike that attempted service. Cf Rules 4(c)(1) and 4(c)(6), Ala. R. Civ. P., regarding methods of serving individuals and corporations, respectively. Hall and Journey were never properly served. Fox6 moved for a summary judgment, which Williams opposed. Williams also moved for a summary judgment, which Fox6 opposed. The trial court rendered a written judgment on October 3, 2005, in which it granted Fox6’s motion for a summary judgment.

The judgment was stamped as filed in the Jefferson circuit clerk’s office on October 4, 2005. The computerized case-action-summary sheet reflects the filing date of the judgment on separate paper; however, the typewritten case-action-summary sheet does not contain an entry reflecting the filing of the October 4, 2005, judgment on separate paper. The computerized case-action-summary sheet contains a notation indicating that a clerk’s office employee returned the October 4, 2005, judgment by separate paper to the court with a question regarding whether the other two defendants remained in the case. The trial court then entered an order, by placing it on the typewritten case-action-summary sheet, that reads:

“Claims against the Defendant Fox Television Station, were dismissed on October 4, 2005, by separate order. The other two (2) Defendants, Janet Hall and Rick Journey, have not been served since claims against them were filed on October 20, 2004. Due to non-service on the remaining Defendants in this case, all claims against them are dismissed. This Judgment is made final. Costs are taxed to the Plaintiff as previously taxed.
“DONE AND ORDERED on this the 19th day of October, 2005.”

Williams filed a postjudgment motion on November 22, 2005. He filed a notice of appeal on November 30, 2005.

Although neither party raises the issue of jurisdiction to this court, we take notice of the lack of jurisdiction ex mero motil. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003) (discussing the general rule that this court notices the lack of jurisdiction ex mero motu and citing to several cases noting that rule). The trial court’s October 3, 2005, rendition of a judgment in favor of Fox6 was filed in the clerk’s office on October 4, 2005. Pursuant to Rule 58(a), Ala. R. Civ. P., a judge may render a judgment in four ways, including executing a separate written document, as the trial court did in the present case. At all times pertinent to this case, Rule 58(c), Ala. R. Civ. P., stated that “[njotation of a judgment or order on separately maintained bench notes or in the civil docket or the filing of a separate judgment or order constitutes the entry of the judgment or order.” (Emphasis added.) “When a separate judgment is filed, the filing thereof constitutes the entry of the judgment....” Lacks v. Stribling, 406 So.2d 926, 930 (Ala.Civ.App.1981). The October 4, 2005, judgment on separate paper bears a stamp indicating that it was “filed in open court” on October 3, 2005, and a date stamp indicating that it was filed in the clerk’s office on October 4, 2005. Thus, the judgment was entered, at the latest, as indicated by the date stamp, on October 4, 2005.

Because the only defendant who had been served at the time the judgment was entered was Fox6, the summary judgment in favor of Fox6 was a final judgment on October 4, 2005. Rule 4(f), Ala. R. Civ. P. (“When there are multiple defendants and the summons ... and complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.”); see Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984) (denying, pursuant to Rule 4(f), a motion to dismiss an appeal on the basis that the judgment appealed from was not final because there remained unserved defendants below); Harris v. Preskitt, 911 So.2d 8, 14 (Ala.Civ.App.2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). The October 19, 2005, order purporting to dismiss the claims against Hall and Journey was mere surplusage. Dolgencorp, Inc. v. Pounders, 912 So.2d 523, 525 (Ala.Civ.App.2005) (stating that a trial court’s purported certification of a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., was surplusage because the judgment was otherwise made final by entry of a judgment dismissing the plaintiffs remaining claims against the remaining defendant and, therefore, all claims against all parties had been adjudicated). A trial court cannot divest a final judgment of its finality by taking subsequent action on the case. Horn v. Dunn Bros., Inc., 262 Ala. 404, 408, 79 So.2d 11, 15 (1955); Nichols v. Ingram Plumbing, 710 So.2d 454, 456 (Ala.Civ.App.1998); and Mingledorff v. Falkville Downtown Redev. Auth., 641 So.2d 830, 832 (Ala.Civ.App.1994). Thus, the October 4, 2005, judgment was final at the time it was entered despite the fact that two unserved defendants remained.

Although we note the discrepancy between the typewritten and the computerized case-action-summary sheets, we do not believe that the holding of Sparks v. Alabama Power Co., 679 So.2d 678, 681 (Ala.1996), in which our supreme court decided that “where there is a material discrepancy between the information contained on the formal case action summary sheet in a case and the information contained in the circuit clerk’s computerized docket, a litigant should not be penalized by relying in good faith on the information contained in either ‘document,’ ” would assist Williams. Williams clearly received a copy of both the October 4, 2005, judgment and the October 19, 2005, order. The arguments in Williams’s postjudgment motion concern the trial court’s conclusions of law contained in the October 4, 2005, judgment. Thus, even if Williams had noticed that the October 4, 2005, judgment had not been entered on the typewritten case-action-summary sheet, he had a copy of that judgment, indicating that it had been filed in open court on October 3, 2005, in his possession; Williams, in both his post-judgment motion and his notice of appeal referred to the date of the judgment granting Fox6’s summary-judgment motion as. “October 3, 2005.” Although he relied on the trial court’s erroneous conclusion that the summary judgment in favor of Fox6 was not final until the unserved defendants were “dismissed” from the action, Williams was not misled by the conflict in the case-action-summary sheets as the plaintiff in Sparks was.

Williams’s postjudgment motion was untimely, coming as it did more than 30 days after the entry of the October 4, 2005, judgment. Rule 59(b), Ala. R. Civ. P. (stating that postjudgment motions must be filed within 30 days of the entry of the judgment to which they are directed). Thus, Williams’s untimely postjudgment motion did not toll the time for taking an appeal. Gary Powers Dev., Inc. v. State Home Bldrs. Licensure Bd., 852 So.2d 778, 782 (Ala.Civ.App.2002). Williams’s notice of appeal, which he filed on November 30, 2005, was also untimely because it was filed more than 42 days after the entry of the summary judgment in favor of Fox6. Rule 4(a)(1), Ala. R.App. P. (providing that, in most cases, an appeal must be taken within 42 days of the judgment being appealed from). We therefore dismiss Williams’s appeal as being untimely. See Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (“A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal.”).

APPLICATION OVERRULED; OPINION OF AUGUST 11, 2006, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . Williams, who is incarcerated in an Alabama prison, argues on rehearing that he actually filed his postjudgment motion on November 17, 2005, the date he handed the motion to prison authorities for mailing, based on the application of the “mailbox rule.’1 See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (setting out the "mailbox rule”). Although the "mailbox rule” governs the timeliness of most filings in criminal cases and the timeliness of notices of appeals in both criminal and civil cases, see Rule 4(c), Ala. R.App. P., the rule has not been extended to other filings in civil cases. See N.H. v. Vickers, 865 So.2d 452, 455 (Ala.Civ.App.2003) (affirming a trial court's dismissal of an incarcerated litigant’s motion for a default judgment as being untimely filed because no caselaw had extended the "mailbox rule” to filings in civil cases). In this particular case, the application of the "mailbox rule” would be unavailing to Williams, so we will not reconsider the issue of whether to extend that rule to filings in civil cases. Thus, we consider Williams’s postjudgment motion as having been filed on November 22, 2005.

      . Rule 58 was amended effective September 19, 2006. The new rule significantly differs from the prior rule, especially in regard to subsection (c), which now reads:
      "(c) Entry of Order or Judgment. Upon rendition of. an order or judgment as provided in subdivision (a) of this rule, the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed 'entered' within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System. The entry of the judgment or order shall not be delayed for the taxing of costs. Interest upon a judgment runs from the date the court renders the judgment.”


author: CRAWLEY, Presiding Judge. BRYAN, Judge,

text:
    Jason CHANDLER and Sara Chandler v. CITY OF VESTAVIA HILLS PLANNING AND ZONING COMMISSION.
    2050403.
    Court of Civil Appeals of Alabama.
    Oct. 20, 2006.
    Rehearing Denied Dec. 22, 2006.

      Jesse P. Evans III and Amelia Robinson Killebrew of Adams & Reese, LLP/Lange Simpson, Birmingham, for appellants.
    J. Bentley Owens III and H. Thomas Wells III of Starnes & Atchison, LLP, Birmingham, for appellee.
   CRAWLEY, Presiding Judge.

Jason Chandler and Sarah Chandler appeal from the trial court’s denial of a petition for a writ of mandamus instructing the City of Vestavia Hills Planning and Zoning Commission (“the Commission”) to grant the Chandlers permission to subdivide their residential lot into two parcels. One of the proposed parcels would be a “flag lot,” which, although not defined by the parties, is evidently a rectangular parcel of land that is accessible only by a long narrow strip of property leading from a main road.

The Commission denied the Chandlers’ subdivision proposal on August 18, 2005. The Chandlers then sued the Commission, requesting that the trial court issue a writ of mandamus instructing the Commission to approve their proposal. The Chandlers alleged that the Commission had a clear legal duty to approve the subdivision of their property because, they alleged, the proposal complied with the Commission’s subdivision and zoning regulations. The trial court denied the Chandlers’ petition for a writ of mandamus on December 6, 2005, and the Chandlers timely appealed to this court.

I. Factual Background

The Chandlers are individual residents of Vestavia Hills, and they reside on, and own, the property at issue in this case. The Commission is a municipal planning commission organized under and pursuant to the provisions of § 11-52-1 et seq., Ala.Code 1975. The Commission’s powers include the power to review and approve subdivision proposals.

The Chandlers proposed to subdivide their property into two residential lots, one of which would be a “flag lot.” Testimony at trial by Laurence Weygand, a civil engineer and surveyor, indicated that the Commission has approved various other flag lots in the past.

The Commission stated in its court filings that it adopted the opinion of its legal counsel as a basis for denying the Chandlers’ subdivision request. That opinion stated in relevant part:

“In my judgment it is the intent of the Vestavia Hills Zoning Ordinance and Subdivision Regulations, when read together, that a front yard is a yard extending the full width of the front of a lot between the front (street) right of way line and the front building line. Therefore, it is my legal opinion that flag lots are not permitted Under the Vestavia Hills Zoning Ordinance and Subdivision Regulations.
“I base my legal opinion upon the following reasons:
“1. Both the Subdivision Regulations and the Zoning Ordinance contemplate that a lot in a subdivision will have four boundaries, including front, rear, side and side. A flag lot would have six boundary lines, including rear, two fronts and three sides.
“2. Article 21 of the Vestavia Hills Zoning Ordinance provides the following definitions:
“ ‘YARD An open space between a building or structure and the adjoining lot lines, unoccupied and unobstructed by any structure from the ground upward.
“‘YARD, FRONT A yard extending across the front of a lot between the side lot lines. On corner lots the front yard shall be considered as parallel to the street upon which the lot has its least dimension.
‘“YARD, REAR A yard extending across the rear of a lot between the side lot lines.
‘“YARD, SIDE A yard between the main building and the side lot line and extending from the required front yard to the required rear yard.’
“3. Article 6, Section 601 of the Zoning Ordinance provides that ‘the Planning and Zoning Commission shall have the authority to approve irregularly shaped lots having a minimum of 40 front footage, but all building line restrictions shall remain in full force and effect on irregularly shaped lots unless otherwise approved by the Planning Commission.’ In my opinion, the Planning and Zoning Commission has the authority to approve 40-foot lots, but is not mandated to do so.
“4. Section 3.15 of the Subdivision Regulations provides ‘every lot shall abut on a public street.’ In my opinion, that means that the entire lot on the front boundary shall abut a public street.
“5. I recognize that the written language of the Subdivision Regulations and Zoning Ordinance does not expressly prohibit flag lots.
“6. I also recognize, however, that the written language of the Subdivision Regulations and the Zoning Ordinance does not expressly permit flag lots.
“7. In my opinion, the intent of the Zoning Ordinance and Subdivision Regulations when read together is for lots in subdivisions to be homogeneous in character. If flag lots were permitted, then in such event there would be no uniformity in subdivisions. Therefore, flag lots were not to be permitted in my judgment.
“8. It is my opinion, based upon the reading of the Subdivision Regulations, together with the Zoning Ordinance, that both intend that the front yard of a lot is a yard extending the full width of the front of the lot between the front (street) right-of-way line and the front building line. Therefore, flag lots are not permitted in my judgment.
“I feel that an ordinance can be drafted that prohibits flag lots.”
The trial court’s judgment stated, in part:
“The Vestavia Hills Planning and Zoning Commission is a municipal planning commission organized under and pursuant to the provisions of Alabama Code § 11-52-1 et seq. (1975) and thereafter exercised its authority in adopting zoning and subdivision regulations. Once a planning commission has properly exercised its authority in drafting ordinances regulating subdivision development, it is bound by such ordinances. Smith v. City of Mobile, 374 So.2d 305 (Ala.1979).
“It should be noted that a review of the Commission’s action is limited. The Commission’s denial of approval for the proposed subdivision should not be invalidated unless it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. City of Mobile v. Waldon, 429 So.2d 945 (Ala.1983). A Developer must ordinarily demonstrate complete compliance with all requirements in connection with his subdivision plat for a Mandamus to issue to compel approval. Smith v. Mobile, supra. Finally, in denying approval, the commission must state the grounds for the denial on its record. Noojin v. Mobile City Planning Commission, 487 So.2d 587 (Ala.1986).
“On August 18, 2005 the City of Ves-tavia Hills Planning and Zoning Commission denied approval of the [Chandlers’] proposed subdivision and cited as grounds the opinion from the City Attorney, that the proposed subdivision would violate and not conform to the Vestavia Hills zoning ordinance and subdivision regulations. In particular, the opinion of the City Attorney opined that flag lots are not permitted under the subdivision regulations of Vestavia Hills. The [Chandlers’] proposed subdivision would include a flag lot, which according to the City Attorney would not be in conformance of the subdivision regulations.
“Upon consideration of the Petition and Respondent, City of Vestavia Hills Planning and Zoning Commission’s brief in opposition to said Petition and the evidence submitted at the hearing, the Court finds that the action by the City of Vestavia Hills Planning and Zoning Commission in denying the [Chandlers’] request for subdivision approval was based upon the opinion of the City Attorney which cited legitimate reasons to deny the request, which were related to the conformance with the Vestavia Hills subdivision regulation and therefore, the action by the Commission was not clearly arbitrary and unreasonable.”

II. Discussion

On appeal the Chandlers make two arguments: (1) that the Commission’s decision to deny their request to subdivide their property is contrary to the statutory constraints on the Commission’s actions under § 22-52-31, Ala.Code 1975; and (2) that the Commission exceeded the scope of the statutory limitations imposed on the Commission when it failed to give reasons for its denial of the Chandlers’ subdivision proposal as required under § 11-52-31, Ala.Code 1975.

As an initial matter, we note that this case is an appeal from the denial of a petition for a writ of mandamus.

“Mandamus is an extraordinary remedy requiring a showing that 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 Leigeber, 623 So.2d 1068, 1071 (Ala.1993) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Because it is an extraordinary remedy, the standard of review is whether there has been a clear abuse of discretion by the trial court. Ex parte State Dep’t of Human Resources, 674 So.2d 1274 (Ala.Civ.App.1995).”

City of Birmingham Planning Comm’n v. Johnson Realty Co., 688 So.2d 871, 872 (Ala.Civ.App.1997). Furthermore, in an appeal from a trial court’s denial of a petition for a writ of mandamus, this court must indulge all reasonable presumptions in favor of the correctness of the judgment appealed from. Perry v. State Dep’t of Corr., 694 So.2d 24, 25 (Ala.Civ.App.1997).

Additionally, this court must determine whether the trial court’s denial of the petition for a writ of mandamus was an abuse of discretion in light of the standard of review applied to the Commission’s decision. As this court stated in Mobile City Planning Commission v. Stanley, 775 So.2d 226 (Ala.Civ.App.2000), this court— and the trial court — are limited in our review of the decision of a planning commission.

“Judicial review of a city planning commission’s action is limited. Noojin v. Mobile City Planning Comm’n, 480 So.2d 587 (Ala.Civ.App.1985). When a planning commission exercises control over subdivision lands -within a municipality it acts in an administrative capacity. Boulder Corp. v. Vann, 345 So.2d 272 (Ala.1977).
“ ‘There is no dispute that the proper standard of review in cases based on an administrative agency’s decision is whether that decision was arbitrary or capricious or was not made in compliance with applicable law.
“ ‘ “Our standard of review regarding administrative actions is very limited in scope. We review the circuit court’s judgment without any presumption of correctness since that court was in no better position than this court to review the agency decision. The special competence of the agency lends great weight to its decision. That decision must be affirmed unless arbitrary, capricious, or not made in compliance with applicable law. Neither the circuit court nor this court may substitute its judgment for that of the administrative agency.” ’
“Ex parte City of Fairhope, 739 So.2d 35, 38 (Ala.1999), quoting State Dep’t of Revenue v. Acker, 636 So.2d 470, 473 (Ala.Civ.App.1994) (citations omitted). A planning commission’s decision should not be invalidated ‘unless it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’ Noojin, 480 So.2d at 588.”

Stanley, 775 So.2d at 228.

“ ‘ “A determination ... is not ‘arbitrary’ or ‘unreasonable’ where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978).
“ ‘ “If reasonable minds may well be divided as to the wisdom of [the] administrative board’s actions, or there appears some reasonable basis for the classification made by the board, such action is conclusive and the court will not substitute its judgment for that of the administrative body.” ’
“City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala.1982) (quoting Hughes v. Jefferson County Bd. of Educ., 370 So.2d 1034, 1037 (Ala.Civ.App.1979)).”

Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 (Ala.2006). “The term ‘arbitrary and capricious’ is a technical legal phrase meaning an administrative action not supported by evidence or lacking a rational basis.” 73A C.J.S. Public Administrative Law and Procedure § 418 (2004) (footnote omitted).

The Chandlers argue that the standard of review of the Commission’s actions is in fact a two-step standard. The Chandlers claim that first this court must review whether the Commission acted within the bounds of its “authority contained in the legislation authorizing it to act, as well as any restrictions contained in its own regulations.” Following this initial review, according to the Chandlers, a court may then proceed to analyze the trial court’s judgment as to whether the decision of the Commission was arbitrary and unreasonable. For these principles the Chandlers cite Smith v. City of Mobile, 374 So.2d 305, 307 (Ala.1979). However, Smith does not stand for such a proposition. In fact, Smith merely states that a planning commission has no discretion to disapprove a subdivision plan that conforms to the existing regulations. Id. Rather than compelling a two-step standard of review, our caselaw implies that when a planning commission does not approve a subdivision plan that conforms to the regulations, the commission’s actions may be considered “arbitrary and unreasonable.” See Stanley, 775 So.2d at 228 (noting that “ ‘[t]here is no dispute that the proper standard of review in cases based on an administrative agency’s decision is whether that decision was arbitrary or capricious or was not made in compliance with applicable law’ ” (quoting Ex parte City of Fairhope, 739 So.2d 35, 38 (Ala.1999))).

In making their substantive argument, the Chandlers rely primarily upon § 11-52-31, Ala.Code 1975, and Smith v. Mobile, supra. Section 11-52-31, Ala.Code 1975, does not specifically address the issue presented here, and Smith is distinguishable. In Smith, our supreme court reversed a trial court’s judgment affirming the Mobile Planning Commission’s denial of the plaintiffs request to subdivide his real property. Smith, 374 So.2d at 306-07. The Mobile Planning Commission’s decision was based upon the fact that the subdivision plans would be “ ‘out of character with other lots in the area.’ ” Smith, 374 So.2d at 307. The Mobile Planning Commission argued that its decision was authorized by its regulations, and it argued that it had the discretion to deny the proposed subdivision under its enabling statute. Id.

Our supreme court held that it would not construe the Mobile Planning Commission’s regulations as giving that commission discretion to take into account aesthetic factors and to disapprove subdivisions when they are “ ‘out of character with other lots in the area.’ ” 374 So.2d at 309. In essence, our supreme court stated that the Mobile Planning Commission was wrong to deny the approval of the proposed subdivision on the ground that the subdivision was out of character with other lots in the area when that decision was “unrelated to [the subdivision’s] conformance with the [Mobile] Planning Commission’s own regulations and exceeded [the Commission’s] statutory grant of power.” Id.

In this case the trial court was presented with evidence indicating that the Commission did not act arbitrarily or capriciously and that it complied with applicable law. Although it is true that the zoning regulations do not specifically state whether flag lots are permitted, the Commission based its decision on the advice of its legal counsel and a reasonable interpretation of the planning regulations. Those planning regulations indicate that four-sided lots are typical. A flag lot would have at least six sides. Additionally, a “front yard” is defined as “[a] yard extending across the front of a lot between the side lot lines.” The city attorney opined that a flag lot could not meet the definitional requirement of a “front yard” because the front of the lot could not possibly extend across the lot between the side lot lines; that is, one part of the front of the lot would abut the street, and there would be a second front-lot boundary line set back from the street. The city attorney concluded that the entire front boundary of the lot is required to abut a public street.

The Commission’s denial of the requested subdivision can hardly be called “ ‘ “arbitrary or capricious or ... not made in compliance with applicable law,” ’ ” Stanley, 775 So.2d at 228, when the Commission based its denial of the subdivision on an opinion from the city attorney, who stated that the city’s zoning ordinance and subdivision regulations do not allow flag lots. See Green v. Johnson City Reg’l Planning Comm’n, (No. E2003-02509-COA-R3-CV, Sept. 28, 2004) (Tenn.Ct.App.2004) (not reported in S.W.3d), application for permission to appeal denied March 21, 2005 (stating that evidence of a commission’s reliance on the advice of a city attorney was more than adequate evidence to support the trial court’s conclusion that the decision of the commission was neither arbitrary nor capricious); see also McKenzie v. City of Ocean Springs, 758 So.2d 1028 (Miss.Ct.App.2000)(holding that the city had not acted arbitrarily and capriciously in granting a building permit when the zoning ordinance expressly permitted the use of the property for the proposed purpose, the city had considered the recommendation of the city attorney, and the use of a water area in front of the property was previously approved for the proposed purpose by another state agency). Furthermore, we can hardly say that the trial court’s denial of the Chandlers’ petition for a writ of mandamus was a clear abuse of its discretion.

The Chandlers’ second argument to this court is that the Commission exceeded the scope of the statutory limitations imposed on the Commission when it failed to give reasons for its denial of the Chandlers’ subdivision proposal. However, that argument is also unavailing to the Chandlers.

Although the Chandlers’ draw a comparison to Mobile City Planning Commission v. Southern Region Developers, Inc., 628 So.2d 739 (Ala.Civ.App.1993), that case is not analogous to the present case. In Mobile City Planning Commission, the trial court granted a petition for a writ of mandamus to the plaintiff landowner who sought to subdivide its property. 628 So.2d at 740. The trial court found that in denying the plaintiff’s request the Mobile Planning Commission had stated no valid reason and had made “ ‘no adverse finding whatsoever.’ ” Id. The only reason the Mobile Planning Commission gave was the existence of “ ‘concerns’ ” and “ ‘questions.’ ” Id. The trial court held that the mere existence of a controversy is either no reason or an invalid reason for denying the approval of a subdivision application. Id. This court stated in that case that “we cannot hold that the trial court’s findings were clearly erroneous or manifestly unjust. Instead, the record supports the trial court’s findings, as well as its judgment.” 628 So.2d at 741.

In the case at hand, the minutes of the Commission’s meeting indicate that, although other (perhaps invalid) grounds were discussed regarding the denial of the proposed subdivision, the denial specifically incorporated the opinion of the city attorney. The city attorney’s opinion provides far more reasons for rejecting the proposed subdivision than the vague “ ‘concerns’ ” or “ ‘questions’ ” in Mobile City Planning Commission, supra. In short, the Commission gave a legitimate reason for the denial of the Chandlers’ proposed subdivision, and it complied with all legal requirements.

III. Conclusion

We affirm the trial court’s denial of the petition for a writ of mandamus ordering the Commission to approve the Chandlers’ subdivision request. The Chandlers have not shown that the Commission’s denial of the Chandlers’ subdivision request was arbitrary or capricious or that it did not comply with applicable law. Additionally, the Commission provided adequate and valid reasons for the denial of the Chandlers’ request.

AFFIRMED.

PITTMAN, J., concurs.

BRYAN, J., concurs in the result, with writing, which THOMPSON and MURDOCK, JJ., join.

BRYAN, Judge,

concurring in the result.

I concur in the result. I agree with the main opinion that the Commission’s denial of the Chandlers’ subdivision proposal was not arbitrary, capricious, or made without complying with applicable law. In so doing, I conclude that the opinion of the city’s attorney, which the Commission adopted in its decision, was not arbitrary, capricious, or made without complying with applicable law. The main opinion states: “The Commission’s denial of the requested subdivision can hardly be called ‘ “ ‘arbitrary or capricious or ... not made in compliance with applicable law,’ ” ’ [Mobile City Planning Comm’n v.] Stanley, 775 So.2d [226] at 228 [ (Ala.Civ.App.2000) ], when the Commission based its denial of the subdivision on an opinion from the city attorney....” However, an administrative body’s reliance on an attorney’s opinion will not necessarily preclude a finding on appeal that the administrative body has acted arbitrarily, capriciously, or illegally. If an attorney recommends actions that are arbitrary, capricious, or illegal, an administrative body that merely adopts such recommended actions acts arbitrarily, capriciously, or illegally.

Additionally, to the extent that the main opinion may be read as suggesting that an attorney’s opinion, adopted by an administrative body, may be considered as evidence indicating that the administrative body did not act arbitrarily, capriciously, or illegally, I note that “[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence.” Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App.2005). See also Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000) (“[T]he unsworn statements of counsel are not considered evidence. American Nat’l Bank & Trust Co. v. Long, 281 Ala. 654, 207 So.2d 129 (1968).”); and Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala.Civ.App.1983) (stating that arguments of counsel are not evidence that will justify a preliminary injunction). Although an attorney’s opinion may assist an administrative body in reaching its decision, that opinion in and of itself is not evidence to support the administrative body’s decision.

THOMPSON and MURDOCK, JJ., concur.

      . See, e.g., Bennett v. Zelinsky, 163 Md.App. 292, 294, 878 A.2d 670, 671 (2005) (observing that a flag lot was defined by the City of Annapolis Board of Appeals as "a lot with a narrow width (the flag pole), bordering a street, which widens at the rear (the flag),” and that ”[t]he 'flag' portion of the lot is then behind another lot, the full width of which borders on the same street”), and Tall Trees Constr. Corp. v. Zoning Bd. of Appeals of Huntington, 97 N.Y.2d 86, 89 n. 1, 761 N.E.2d 565, 567 n. 1, 735 N.Y.S.2d 873, 875 n. 1 (2001)(noting that a “flagstaff” lot "is an arrangement of adjacent property where one lot maintains the appearance of an ordinary rectangular parcel and the second parcel is located almost entirely behind the first, with only a narrow strip of land to access the road”).

      . Importantly, the Chandlers do not make any argument alleging disparate treatment to this court; in other words, they do not argue that because other flag lots were approved in similar situations the Commission’s treatment of their proposed subdivision is arbitrary. The Chandlers did, perhaps, lay the appropriate foundation for such an argument at the trial-court level by introducing evidence of the Commission’s approval of other flag lots, but the Chandlers do not rely on that evidence to make such an argument in their appeal to this court.


text:
    FAUSAK’S TIRE CENTER, INC., and FTC Properties, L.L.C. v. Patricia BLANCHARD, as administratrix of the estate of Bruce Allen Fausak, deceased.
    2050633.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      Robert E. Gibney, Mobile, for appellants.
    Wesley H. Blacksher of Blacksher & Herrington, L.L.C., Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Bruce Allen Fausak (“the decedent”) died intestate on November 25, 2008. During his lifetime, the decedent was one of five individuals who were shareholders of Fausak’s Tire Center, Inc., a Subchap-ter S corporation (“the corporation”), and members of FTC Properties, L.L.C., an Alabama limited liability company (“the LLC”). On July 28, 2004, the probate court appointed Patricia Blanchard as the administratrix of the decedent’s estate.

On September 9, 2005, the corporation and the LLC filed in the probate court a “Petition for Declaratory Relief,” seeking the enforcement of a buy-sell agreement for the transfer of the decedent’s stock in the corporation and the decedent’s membership interest in the LLC. In response, the administratrix filed a “Motion to Turn Over Assets,” alleging that, at the time of the decedent’s death, there was no valid buy-sell agreement in effect and requesting that the corporation “release” the decedent’s stock and that the LLC “release” the decedent’s membership interest to the estate.

Following a bench trial on January 4, 2006, the probate court entered a judgment stating, in pertinent part:

“1. There was no legally binding buy-sell agreement between [the corporation and the LLC] and ... the shareholders [of the corporation] ... or members [of the LLC]. Ala.Code § 8-9-2 (1975).
“2. The 125 shares of corporate stock ... [that] the decedent owned at the time of his death constitute an asset of the decedent’s estate.
“3. The twenty (20%) percent member ownership interest in [the LLC] the decedent owned at the time of his death constitutes an asset of the decedent’s estate.
“4. The remaining relief requested in the Petition for Declaratory Judgment and Related Relief is DENIED.
“5. The personal representative’s Motion To Turn Over Assets is GRANTED.”

The corporation and the LLC timely appealed to the Alabama Supreme Court pursuant to § 12-22-20, Ala.Code 1975. See Russell v. Russell, 758 So.2d 533 (Ala.1999). The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

Section 12-22-20, Ala.Code 1975, provides that, on appeal from any final judgment of the probate court, “the appellate court shall render such decree, order or judgment as the probate court ought to have rendered.” Our supreme court has stated that the ore tenus standard governs appellate review of a probate court judgment. See Shewmake v. Estate of Shewmake, 940 So.2d 260, 264 (Ala.2006) (quoting Hensley v. Poole, 910 So.2d 96, 100 (Ala.2005)).

The Facts

All of the relevant facts are undisputed. In January 2000, the decedent and two of his brothers, Christian Fausak and Harold W. Fausak, Jr., along with two longtime business associates, brothers Dennis Lowery and Donald Lowery, purchased their stock in the corporation from a fourth Fausak brother, Randall E. Fausak, for $1.1 million. The purchase price of the stock was $2,100 per share. The decedent purchased 125 shares of stock.

At the time they acquired their stock in the corporation, the five shareholders discussed the fact that they needed to have a buy-sell agreement that would require a shareholder to sell, and the corporation to buy, his stock upon the occurrence of certain events. All five shareholders agreed that, in the event of a shareholder’s death, they did not want the wives or children of shareholders to become part owners of the corporation. They discussed purchasing life insurance on all the shareholders to fund the buy-sell agreement; before the decedent’s death, the corporation obtained and paid the premiums on policies insuring the lives of all five shareholders.

The LLC was formed in January 2003. The sole asset of the LLC is a parcel of real property in Bay Minette on which a tire store is located. That property is encumbered by a mortgage to Regions Bank and is leased to the corporation. The decedent owned a 20% membership interest in the LLC. The members of the LLC orally agreed that their interests in the LLC would also be included in a buy-sell agreement.

At a shareholders’ meeting on April 15, 2002, the five shareholders executed a document modifying the purchase price of the stock and agreeing that the value of each share was $2,500. The corporation’s accountant testified that $2,500 per share was a fair price for the stock. Randall E. Fausak, the former owner of the corporation, stated that at one time he thought the stock price was too high, but after the LLC acquired the Bay Minette tire store and leased it to the corporation he believed that the $2,500-per-share valuation was accurate.

The record contains the agenda for and the minutes of several shareholders’ meetings at which the issue of a buy-sell agreement was discussed. The record also contains four different drafts of proposed buy-sell agreements, none of which was executed before the decedent died in November 2003.

The decedent’s spouse testified that the decedent, before his death, had discussed with her the fact that the shareholders had agreed to have a buy-sell agreement, that they were “working out the details,” and that she would “be taken care of by the company buying his stock with life insurance.” The decedent’s spouse stated that the buy-sell agreement had not been finalized at the time of the decedent’s death because, she said, the corporation was still growing, buying property, and adding new assets. At trial, the corporation’s attorney put the following question to the decedent’s spouse: “If the five [shareholders] agreed [to a buy-sell agreement]; and the company says we’ve got the money; what are we doing here today?” The spouse answered, “I guess [we are] going over the value of what is owed the estate.”

On November 17, 2004, almost a year after the decedent’s death, the four remaining shareholders of the corporation and members of the LLC formally signed and executed a buy-sell agreement. That agreement includes a stock-valuation price of $2,500 per share. According to the four surviving shareholders and the corporation’s accountant, a buy-sell agreement was never formally executed before the decedent died because “there were still variables open for discussion.” Those variables related to the disability of a shareholder as an event triggering the buy-sell agreement as well as the interest that would be due and the time limitations that would be imposed upon installment payments for a shareholder’s stock or a member’s interest in the LLC.

On September 21, 2004, the probate court entered an order awarding the decedent’s spouse statutory allowances and exemptions in the amount of $15,500. The estate subsequently requested that the corporation make an advance payment of that amount for the benefit of the spouse. On November 18, 2004, the corporation sent the administratrix a check payable to the estate in the amount of $15,500 and bearing the notation, “For Advancement Buy/Sell Stock Agreement.” The adminis-tratrix testified that she negotiated the check and disbursed the proceeds to the decedent’s spouse, pursuant to the probate court’s September 21, 2004, order.

The decedent’s 20% membership interest in the LLC was valued at $16,947.46. The decedent’s 125 shares of stock were valued at $312,500. In November 2004, the corporation and the LLC advised the estate that they were prepared to pay the estate the sum of the values of those interests ($329,447.46) less the advancement to the spouse ($15,500), in a lump-sum payment of $313,947.46, in exchange for the decedent’s interests in the corporation and the LLC.

Analysis

The Alabama Statute of Frauds, § 8-9-2, Ala.Code 1975, provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(8) Notwithstanding Section 7-8-113, [Ala.Code 1975,] every agreement for the sale or purchase of securities other than through the facilities of a national stock exchange or of the over-the-counter securities market.”

Section 7-8-113, Ala.Code 1975, a part of Alabama’s version of the Uniform Commercial Code (“UCC”), was enacted in 1996, to replace former § 7-8-319, Ala. Code 1975. See Act No. 742, Ala. Acts 1996 (effective January 1, 1997), and § 7-8-113 (Official Comment). Section 7-8-319 had been the UCC Statute of Frauds provision applying to contracts for the sale of securities. When Revised Article 8 of the UCC as proposed by the American Law Institute “eliminat[ed] the requirement of a signed writing for the enforcement of agreements to buy or sell securities” through the organized securities markets, the Alabama Legislature

“[r]ecogniz[ed] ... that the statute of frauds has an important role to play in informal transactions other than on the organized securities markets, and [it] ... amended [the Alabama general Statute of Frauds, § 8-9-2, Ala.Code 1975,] to make its requirements applicable to agreements for the sale or purchase of securities other than through a stock exchange or the over-the-counter market. ... Thus an agreement by a shareholder of a closely held corporation to sell all or part of his shares continues to be subject to the statute of frauds, notwithstanding the elimination of a statute of frauds requirement as to transactions in the organized securities markets.”

§ 7-8-113, Ala.Code 1975 (Alabama Comment).

On appeal, the corporation and the LLC make two arguments, namely: (1) that the writing requirement of the Statute of Frauds was satisfied; and (2) that the estate was estopped to assert the bar of the Statute of Frauds.

The corporation and the LLC contend that the written stock-valuation document, signed by all five shareholders on April 15, 2002, and agreeing that the purchase price of the stock was to be $2,500 per share, constitutes a “note or memorandum [of the buy-sell agreement] expressing the consideration ... and subscribed by the party to be charged” so as to satisfy the Statute of Frauds. The estate contends that the stock-valuation document does not constitute a sufficient memorandum because it neither mentions a buy-sell agreement nor outlines the essential terms of a buy-sell agreement.

The Sufficiency of the Stock-Valuation Document to Satisfy the Writing Requirement of the Statute of Frauds

Although a writing relied on to satisfy the Statute of Frauds need not be a complete contract, it must contain the essential terms of the alleged contract, “namely, an offer and an acceptance, consideration, and mutual assent to the essential terms of the agreement.” Davis v. Barnfield, 833 So.2d 58, 62 (Ala.Civ.App.2002)(citing Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993), overruled on another ground, Bruce v. Cole, 854 So.2d 47 (Ala.2003)). In discussing how much detail is required to satisfy the writing requirement in the Statute of Frauds, the Restatement (Second) of Contracts § 131, Comment g. (1981), states:.

“The ‘essential’ terms of unperformed promises must be stated; ‘details or particulars’ need not. What is essential depends on the agreement and its context and also on the subsequent conduct of the parties, including the dispute which arises and the remedy sought.”

Comment c. to § 131 of the Restatement explains:

“The primary purpose of the Statute is evidentiary, to require reliable evidence of the existence and terms of the contract and to prevent enforcement through fraud or perjury of contracts never in fact made. The contents of the writing must be such as to'make successful fraud unlikely, but the possibility need not be excluded that some other subject matter or person than those intended will also fall within the words of the writing. Where only an evidentiary purpose is served, the requirement of a memorandum is read in the light of the dispute which arises and the admissions of the party to be charged; there is no need for evidence on points not in dispute.”

The estate argues that there could have been numerous reasons, other than a buy-sell agreement, for the shareholders to agree on the valuation of the corporation’s stock. In support of that argument, the estate points to the testimony of the corporation’s accountant, who acknowledged that “there are a multitude of reasons to value [stock].”

Insofar as that argument attacks the sufficiency of the stock-valuation document as a memorandum because it fails to include as an “essential term” the fact that the parties assented to a buy-sell agreement when they valued the stock, the argument is persuasive. However, insofar as that argument attacks the' sufficiency of the document merely because its purpose is not apparent on its face, the argument is not cogent. In determining whether any given document is sufficient as a memorandum under the Statute of Frauds, “the purpose for which the memorandum was written is immaterial.” 10 Richard A. Lord, Williston on Contracts § 29:6 at 450 (4th ed.1999) (footnote omitted).

“ ‘Generally speaking, the purpose with which a memorandum is prepared is immaterial, and it will suffice although it was not intended to evidence the contract or to comply with the [S]tatute [of Frauds], If there is a memorandum, otherwise sufficient, it is not necessary that it be signed by the party to be charged with the intent to comply with the statute. His intention in this respect is immaterial.’ ”

Id. at 450-51 (quoting Horner v. Holt, 187 Va. 715, 725, 47 S.E.2d 365, 370 (1948))(emphasis added).

“The memorandum itself need not constitute a contract, and apart from its effect as a memorandum, it may have no legal operation. There must be a valid oral 'contract, however, of which the memorandum is an accurate statement. ‘Except as evidence of the oral contract, the memorandum has no force or effect unless and until the oral contract has been established by a preponderance of evidence. Then, if accurate and complete, it prevents the interposition of the Statute of Frauds as a bar to the enforcement of the oral contract.’ The memorandum, however, need not have been made with that intent.”

Id., § 29:3 at 434-37 (quoting Donald Friedman & Co. v. Newman, 255 N.Y. 340, 344, 174 N.E. 703, 704 (1931))(emphasis added; footnotes omitted).

As the emphasized portions of the foregoing passages from Williston’s treatise indicate, the problem with considering the stock-valuation document as a memorandum under § 8-9-2 is not that the document might have been intended for some purpose other than a buy-sell agreement, but, more fundamentally, that it is simply insufficient to evidence a buy-sell agreement at all. Although the document expresses the consideration for the stock and is signed by the party to be charged, it does not manifest the mutual assent of the signing parties to a buy-sell agreement. We, therefore, hold that the stock-valuation document does not satisfy the writing requirement of the Statute of Frauds.

Estoppel

Next, the corporation and the LLC argue that the estate is estopped to assert the bar of the Statute of Frauds because of two admissions, namely: (1) the surviving spouse’s testimony that, they say, is a judicial admission of the existence of the oral buy-sell agreement; and (2) the conduct of the estate that, they claim, constitutes an admission of the validity of the oral buy-sell agreement. Specifically, the corporation and the LLC contend that, when the estate requested the corporation to make an advancement to the decedent’s spouse and then distributed to the spouse the proceeds of the corporation’s $15,500 check containing the notation, “For Advancement Buy/Sell Stock Agreement,” that conduct constituted an admission of the efficacy of the oral agreement.

When a party invokes estoppel to avoid a Statute of Frauds defense, that response constitutes a “ ‘matterf ] in avoidance,’ which, like [an] affirmative defense[], must be proved by the proponent.” Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002). Thus, the corporation and the LLC had the burden of proving that the estate was estopped to assert the Statute of Frauds.

Estoppel Based on a Judicial Admission

Relying on Dean v. Myers, 466 So.2d 952 (Ala.1985), and Campbell v. Campbell, 371 So.2d 55 (Ala.Civ.App.1979), the corporation and the LLC argue that because the decedent’s surviving spouse judicially admitted that the decedent had agreed before his death to be bound by a buy-sell agreement, the estate is estopped to assert the Statute of Frauds in defense of the corporation’s and the LLC’s request to enforce the agreement. The estate counters that both Dean and Campbell are distinguishable because, in each case, the parties agreed not only upon the existence of an oral contract, but also upon the specific terms of the contract.

In Campbell, the oral contract was an antenuptial agreement. The defendant wife raised the Statute of Frauds for the first time on appeal; by failing to raise the affirmative defense at trial, she waived the issue. See Rule 8(c), Ala. R. Civ. P. Any discussion by the court of the wife’s judicial admission of the oral contract was, therefore, not necessary to the holding and dictum.

In Dean, the oral contract was a joint-venture agreement among three individuals to construct a condominium complex. The contract was not to be performed within one year. See § 8 — 9—2(1), Ala.Code 1975. When the other two individuals sued Dean, alleging that Dean had breached the agreement, Dean raised the Statute of Frauds as a defense and filed a counterclaim based on the agreement. Dean admitted the existence of the agreement and most of its terms. The trial court determined that Dean was estopped to assert the Statute of Frauds and entered a judgment on a jury verdict for the two plaintiffs. The supreme court affirmed, concluding that “the facts of the case support a conclusion that Dean was estopped to assert the Statute of Frauds.” 466 So.2d at 955. The supreme court listed the following facts in support of its holding that an estoppel was shown: Dean admitted the existence of the agreement; Dean filed a counterclaim based on the agreement; and Dean engaged in “conduct ... from which the jury could find fraudulent intent on [Dean’s] part.” Id.

The Alabama Supreme Court explained and limited the holding in Dean in two later decisions, both of which involved the sale of land. See Durham v. Harbin, 530 So.2d 208 (Ala.1988), and Darby v. Johnson, 477 So.2d 322 (Ala.1985). In Darby, the court held that the Statute of Frauds bars enforcement of an oral agreement to sell land even though both parties acknowledge the existence of the oral agreement. The court made it clear that there was only one exception to the requirement that contracts for the transfer of an interest in real property be in writing:

“[T]he part performance exception is generally the only exception to the Statute of Frauds in regard to oral contracts concerning real property. To withdraw an oral contract from the Statute, one must pay some or all of the purchase price and be put in possession of the land by the seller.”

477 So.2d at 326 (emphasis added). See also Rentz v. Grant, 934 So.2d 368 (Ala.2006)(oral agreement for a sale of land); Holman v. Childersburg Bancorporation, Inc., 852 So.2d 691 (Ala.2002) (oral agreement to release a tract of land from a mortgage lien).

In Durham, the court interpreted the holding in Darby as follows:

“Darby v. Johnson squarely rejects an exception [to the Statute of Frauds] based on a judicial admission of the substance of a contract, at least in the context of land sales. Alabama thus adheres to the general rule that a defending party may admit in judicial proceedings the substance of a contract and nevertheless assert the Statute in defense. Although long subject to academic criticism, this is nevertheless the majority rule.”

530 So.2d at 212. The court then explained how the holding in Dean should be read:

“[W]e are well aware that our case of Dean v. Myers, 466 So.2d 952 (Ala.1985), decided some six months prior to Darby, contains some language indicating that either a judicial admission by a defendant or the full performance of the plaintiffs side of an oral bargain could estop a defendant from asserting the defense of the Statute of Frauds.... Although there are some admitted ambiguities in the Dean language, the facts and reasoning of that case indicate that it should be read, in light of the generally well-settled law of Alabama and the subsequent decision in Darby, not as approving of a judicial admission or promissory estoppel exception, but primarily as an equitable estoppel or fraudulent conduct case, or alternatively, as a case where the defense was waived by [filing a counterclaim] on the contract.”

Durham v. Harbin, 530 So.2d at 213-14 (footnote omitted).

Notwithstanding the supreme court’s rejection of the judicial-admission exception for which the parties in Darby and Durham had cited Dean, the Durham court left open the possibility, under other circumstances, of adopting a judicial-admission exception to the Statute of Frauds. In a footnote, the court stated:

“We are not wholly deaf to the strong arguments by the commentators favoring a judicial admission exception to the Statute, and, in a proper case, might be inclined to consider whether the legislative intent behind the Statute of Frauds favors such a construction. This case, however, is not the case in which to do so.
“This is because we do not think the defendants actually ‘admitted’ to the contract in question. It is not enough to merely admit that a contract was made; rather, under the judicial admission exception, as we understand it, there must be some substantial compliance in essential terms between the contract sued upon and the ‘admitted’ contract. See 2 A. Corbin, Corbin on Contracts § 319, at 152 (1950); of. Ala.Code (1975), § 7-2-102(2)(b) (UCC provision limiting an ‘admitted’ sales contract only to the precise quantity of goods actually admitted, regardless of quantity term plaintiff claims contract contained).”

Durham v. Harbin, 530 So.2d at 212 n. 5.

It is true that the decedent’s spouse, the primary beneficiary of the estate, admitted many of the essential terms of the buy-sell agreement — i.e., the terms that concerned the triggering event at issue in this case, the death of a shareholder. Clearly, the evidence indicated that at the time of the decedent’s death “there were still variables [in the buy-sell agreement] open for discussion.” Those variables, however, concerned the redemption of a disabled shareholder’s stock, the time limitations imposed upon installment payments, and the interest that would be due on payments made over time. The decedent’s spouse acknowledged that the decedent had informed her that in the event of his death “she would be taken care of by the company buying his stock with life insurance.” The spouse also acknowledged, and the evidence was undisputed, that the corporation and the LLC did not propose to make a payment over time;, they were prepared to make an immediate, lump-sum payment of $313,947.46, representing the decedent’s interests in the corporation and the LLC. Because the “variables [still] open for discussion” were not in dispute between the estate and the corporation and the LLC, they were not, within the context of this case, “essential terms” of the buy-sell agreement. Cf. Restatement (Second) of Contracts § 131, Comment g. (stating that “[w]hat is essential depends on the agreement and its context and also on the subsequent conduct of the parties, including the dispute which arises and the remedy sought”). Nevertheless, it is noteworthy that the decedent’s spouse did not admit one essential term of the oral buy-sell agreement — the price of the stock and the value of the decedent’s interest in the LLC.

Estoppel Based on an Admission by Conduct

The corporation and the LLC contend that the estate admitted the validity of the buy-sell agreement when it requested the corporation to make an “advance” to the spouse of funds that she would eventually be entitled to receive from the corporation and then distributed to the spouse the proceeds of a check from the corporation containing the notation, “For Advancement Buy/Sell Stock Agreement.” The rationale for an admission-by-conduct exception to the writing requirement of § 8-9-2(8) could be considered analogous to the rationale underlying the “part performance” exception to § 8-9-2(5). “The doctrine of part performance operates on the theory of estoppel, particularly estoppel by conduct, to assert the Statute.” 10 Richard A. Lord, Williston on Contracts § 28:2 at 266 (emphasis added). In a part-performance case, the seller’s conduct — accepting some or all of the purchase price for the land and putting the buyer in possession — estops him from denying the validity of the oral contract. Essentially, the part-performance exception applies “ ‘ “ ‘only where the acts of part performance cannot be explained consistently with any other contract than the one alleged.’ ” ’ ” Rentz v. Grant, 934 So.2d at 374 (quoting Holman v. Childersburg Bancorporation, Inc., 852 So.2d at 698, quoting, in turn, Quinlivan v. Quinlivan, 269 Ala. 642, 645, 114 So.2d 838, 840 (1959)) (emphasis added in Holman). Arguably, the acceptance and distribution to the decedent’s spouse of funds labeled as an advancement on a buy-sell agreement “cannot be explained consistently with any other contract than the one alleged.”

We conclude, however, that the two admissions upon which the corporation and the LLC rely — a judicial admission by the decedent’s spouse and an admission by conduct on the part of the estate — do not make this the “proper case” in which to adopt a judicial-admission exception to the Statute of Frauds. We base that conclusion upon, among other things, the language of footnote 5 in Durham in which our supreme court intimated that “in a proper case, [it] might be inclined to consider whether the legislative intent behind the Statute of Frauds favors such a construction.” Durham, 530 So.2d at 212 n. 5 (emphasis added). We hold that the intent behind our legislature’s amending § 8-9-2 to add subsection (8) cannot support the adoption of a judicial-admission exception to that subsection.

In determining and giving effect to legislative intent, a court may look to the history of a statute, Henry v. McCormack Bros. Motor Car Co. 167 So. 256, 232 Ala. 196 (1936), and related statutes, James v. McKinney 729 So.2d 264 (Ala.1998). Before subsection (8) was added to the general Statute of Frauds, Alabama’s version of the UCC contained a special Statute of Frauds for contracts to sell securities. That statute, former § 7-8-319, which was repealed in 1996 and replaced with current § 7-8-113, provided:

“A contract for the sale of securities is not enforceable by way of action or defense unless:
“(a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; or
“(b) Delivery of the security has been accepted or payment has been made but the contract is enforceable under this provision only to the extent of such delivery or payment; or
“(c) Within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within 10 days after its receipt; or
“(d) The party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract was made for a sale of a stated quantity of described securities at a defined or stated price.”

Subsection (d) of § 7-8-319 established a judicial-admission exception to the writing requirement for the sale of securities under Chapter 8 of the UCC. When the legislature repealed § 7-8-319 and enacted current § 7-8-113, it added subsection (8) to § 8-9-2. Had the legislature intended to include a judicial-admission exception to the writing requirement for a contract to sell or purchase securities in a closely held corporation, it could have imported the wording of § 7 — 8—319(d), the former UCC Statute of Frauds, or equivalent language, into subsection (8) of the general Statute of Frauds. The fact that the legislature did not import such language into subsection (8) of § 8-9-2 convinces us that the legislature did not intend to establish a judicial-admission exception (or any other exception) to the writing requirement for the sale or purchase of securities in a closely held corporation.

Accordingly, the current status of the law with regard to admissions in cases involving the Statute of Frauds mandates that we uphold the probate court’s judgment with respect to the buy-sell agreement for the decedent’s shares of stock in the corporation. We cannot, however, uphold the judgment with respect to the buy-sell agreement regarding the decedent’s membership interest in the LLC.

Transfer of the Decedent’s Membership Interest in the LLC

The corporation and the LLC contend that, although the probate court made no finding with respect to whether the Statute of Frauds applied to a transfer of the decedent’s membership interest in the LLC, the court must have decided that the transfer was within the prohibition of the statute. We agree that the probate court must have decided that the Statute of Frauds applied.

At trial, the estate argued that an agreement as to the sale of the decedent’s membership interest would fall within § 8-9-2(5) because the sole asset of the LLC was a parcel of real property on which a tire store was located. Accordingly, the estate argued, a sale of the decedent’s interest would effect the transfer of an interest in real property. We conclude that the probate court must have been persuaded by that argument because the evidence was undisputed that the members of the LLC had orally agreed that, in the event of a member’s death, the LLC would purchase, and the member’s estate would sell, the member’s interest in the LLC. The evidence was also undisputed that the sole asset of the LLC was real estate valued at $320,000 subject to a mortgage of $235,262.68 at the time of the decedent’s death; that the decedent’s membership interest was 20%; and that the appraised value of the real property, less the mortgage, multiplied by 20% was $16,947.46. Without the bar of the Statute of Frauds, that evidence would have been conclusive.

The probate court erred in determining that the Statute of Frauds applied to the sale of the decedent’s membership interest in the LLC.

“Generally, state LLC statutes provide that a member’s interest in an LLC is personal property and allow the member to assign the right to receive the economic benefit of the membership interest to another person.”

Bradley J. Sklar & W. Todd Carlisle, The Alabama Limited Liability Company Act, 45 Ala. L.Rev. 145, 164 (1993) (emphasis added; footnote omitted). Individual members of a limited liability company have no individual vested rights in and to property owned by the LLC. Carey v. Howard, 950 So.2d 1131 (Ala.2006).

In Carey, the court determined that family members in their individual capacities lacked standing to sue relatives and a family owned LLC seeking declaratory relief as to the validity of an option contract to sell land. The court held:

“Under the provisions of the Alabama Limited Liability Company Act, § 10-12-1 et seq., Ala.Code 1975, ‘[a]ny estate in real property may be acquired in the name of the limited liability company and title to any estate so acquired shall vest in the limited liability company itself rather than in the members individually.’ § 10-12-23(a), Ala.Code 1975. As members of the LLC, therefore, the Carey litigants have ‘no interest in specific limited liability company property.’ § 10-12-23(b), Ala.Code 1975.”

950 So.2d at 1135-36.

That part of the judgment of the probate court granting the estate’s request to “release” the decedent’s shares of stock in the corporation is affirmed. That part of the judgment granting the estate’s request to “release” the decedent’s membership interest in the LLC is reversed, and the cause is remanded to the probate court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

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

BRYAN, J., concurs in part and dissents in part, with writing, which THOMPSON, J., joins.

BRYAN, Judge,

concurring in part and dissenting in part.

I concur with the main opinion insofar as it affirms the probate court’s judgment with respect to the decedent’s shares of stock in the corporation.

I respectfully dissent from the main opinion insofar as it reverses the probate court’s judgment with respect to the decedent’s membership interest in the LLC. Although the members of the LLC agreed that, in the event of a member’s death, the LLC would purchase, and the member’s estate would sell, the member’s interest, the main opinion cites no evidence establishing that the parties agreed on either the purchase price for the member’s interest or a method for determining that purchase price. The main opinion has supplied a method for determining the purchase price, but it has not established that the parties agreed to that method. Before Alabama’s adoption of the Uniform Commercial Code, § 7-1-101 et seq., Ala. Code 1975, Alabama common law mandated that “in every executory contract of sale the price to be paid must be fixed or some mode provided for its ascertainment, or else the contract is unenforceable.” Elmore, Quillian & Co. v. Parish Bros., 170 Ala. 499, 502, 54 So. 203, 204 (1911). Section § 7-2-305(1), Ala.Code 1975, modifies that common-law rule to make contracts for the sale of goods enforceable despite the lack of an agreement regarding price if the parties “so intend”; however, § 7-2-305(4) provides that “[w]here ... the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.” The main opinion has not demonstrated that the evidence in the case now before us established that the parties intended the putative buy-sell agreement regarding the membership interests in the LLC to be enforceable despite the parties’ failure to agree on the purchase price or a method for determining the purchase price. Therefore, the failure of the parties to agree on a purchase price or a method for determining the purchase price would support the probate court’s conclusion that no binding buy-sell agreement existed with respect to the decedent’s membership interest in the LLC. Therefore, I would affirm the probate court’s judgment in that regard.

THOMPSON, J., concurs.

      . The parties have not questioned whether the probate court had subject-matter jurisdiction to entertain the petition for declaratory relief. However, we have examined the question ex mero motu and we conclude that the probate court had jurisdiction to hear and determine the petition. "Courts may grant declaratory judgments only when the subject matter of the declaration is within their jurisdiction.” 22A Am.Jur.2d Declaratory Judgments § 188 (2003). The probate court has original and general jurisdiction over “[t]he sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates.” § 12 — 13—1(b)(5), Ala.Code 1975. Local Act No. 91-131, Ala. Acts 1991, which amended Act No. 974, Ala. Acts 1961, expanded the jurisdiction of the Mobile County Probate Court to give it concurrent jurisdiction with the circuit court in the administration of decedents’ estates. See Russell v. Russell, 758 So.2d 533, 535-36 & n. 1 (Ala.1999); and Clark v. Clark, 514 So.2d 1321 (Ala.1987).

      . The corporation’s purchasing insurance on the life of the decedent is not such a "partial performance” as to remove the oral contract from the bar of the Statute of Frauds in this case. " '[r]he partial performance of a contract, void under the statute of frauds, does not take it from under the influence of the statute, so as to permit a recovery under the contract for any part of the contract remaining executory.’ " Ex parte Ramsay, 829 So.2d 146, 155 (emphasis added) (quoting Farrow v. Burns, 18 Ala.App. 350, 351, 92 So. 236, 237 (1921)).

      . This rationale may explain why the supreme court made it clear in Darby and Durham that it would not create another exception to § 8-9-2(5) for judicial admissions or estoppel by conduct, unless the conduct was fraudulent. See Durham, 530 So.2d at 213-14. According to Professor Williston’s treatise, the part-performance exception is already a species of estoppel — estoppel by conduct.

      . The LLC submitted evidence indicating that the members of the LLC had agreed that each member would have a "20 percent equity interest” in the LLC. The LLC introduced the appraisal of the real property, documents reflecting the mortgage indebtedness, and the "Statement of Funds Due” the estate, reflecting the decedent’s 20% equity interest in the LLC. Those documents were admitted without objection from the estate. Accordingly, the estate has waived any objection as to the relevance or sufficiency of the evidence with regard to the method for determining the purchase price of the decedent’s interest in the LLC. Cf. Vester J. Thompson, Jr., Inc. v. Citmoco Servs., Inc., 371 So.2d 35 (Ala.Civ.App.1977)(holding that a party’s failure to object to evidence regarding the price term in an oral agreement constituted a waiver of the affirmative defense of recoupment), rev’d on another ground, 371 So.2d 42 (Ala.1978).

      . Footnote 4 of the main opinion points out that the estate did not object to the introduction of evidence establishing three facts, namely (1) the appraised value of the LLC's real property; (2) the balance owed on the mortgage encumbering that real property; and (3) the percentage of the LLC owned by the decedent. Although the estate's failure to object to that evidence allowed the LLC to prove those three facts, proof of those three facts is not tantamount to proof that the decedent and the other members of the LLC agreed upon a method or formula for determining the purchase price of a deceased member’s interest in the LLC.


author: BRYAN, Judge. CRAWLEY, Presiding Judge,

text:
    Janet McKowen SMITH v. Danny SMITH.
    2050427.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      Julie Katz Callaway, Birmingham, for appellant.
    Mavanee R. Bear, Birmingham, for ap-pellee.
   BRYAN, Judge.

Janet McKowen Smith (“the wife”) appeals a divorce judgment insofar as it (1) failed to award her a share of a payment Danny Smith (“the husband”) had agreed to accept in settlement of his claim as a result of injuries he sustained in an automobile accident during the marriage (“the settlement payment”); (2) failed to award her certain items of personal property; (3) failed to award her more than $300 per month in periodic alimony; and (4) failed to order the husband to pay the wife’s premiums for health insurance pursuant to COBRA for more than six months. We reverse and remand with instructions.

On April 2, 2004, the husband sued the wife for a divorce on the grounds of incompatibility and an irretrievable breakdown of the marriage. On May 3, 2004, the wife answered the husband’s complaint and counterclaimed for a divorce on the same grounds alleged by the husband.

The case proceeded to trial on November 2, 2005. On November 18, 2005, the trial court entered a divorce judgment. Among other things, the divorce judgment divided the property that the parties agreed was marital property, awarded the wife periodic alimony in the amount of $800 per month, and ordered the husband to pay the premiums necessary to cover the wife under the husband’s health-insurance policy pursuant to COBRA for a period of six months. The wife had contended that the settlement payment was marital property subject to division in the divorce; however, the husband had contended that the settlement payment was his separate property and, therefore, was not subject to division in the divorce. By omitting any mention of the settlement payment in the divorce judgment, the trial court implicitly held that the settlement payment was the husband’s separate property rather than marital property.

On December 7, 2005, the trial court, acting ex mero motu, entered an order amending the provision of the divorce judgment dividing the parties’ personal property. That same day, the wife filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the divorce judgment. Following a hearing on the wife’s motion, the trial court, on January 12, 2006, entered an order again amending the division of the parties’ personal property but otherwise denying the wife’s Rule 59(e) motion. The wife then timely appealed to this court.

On appeal, the wife first argues that the trial court erred in failing to award her a share of the settlement payment because, she says, the settlement payment is marital property that was subject to division in the divorce. The husband, on the other hand, contends that the trial court did not err in omitting any mention of the settlement payment from the divorce judgment because, the husband says, the settlement payment is his separate property and, therefore, was not subject to division in the divorce.

The division of property in a divorce proceeding is governed by § 30-2-51, Ala.Code 1975. That section states:

“(a) If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

Thus, subject to certain statutory exceptions, “ ‘marital property generally includes property purchased or otherwise accumulated by the parties during the marriage....’” Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala.Civ.App.2005) (quoting Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001)) (emphasis omitted).

The Alabama courts have addressed the issue whether a payment in settlement of a spouse’s personal-injury claim constitutes marital property in only one case, namely, Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In Golden v. Golden, this court expressly limited its holding to the “peculiar” facts of that case. 681 So.2d at 609. Therefore, no Alabama precedent governs the resolution of that issue in the case now before us.

Courts of other states have utilized three different approaches in determining whether to treat a payment in settlement of a spouse’s personal-injury claim as marital property or as the separate property of the injured spouse. See Golden v. Golden, 681 So.2d at 609 (Crawley, J., dissenting). One approach, sometimes referred to as the mechanistic approach, deems the settlement payment to be marital property if it is acquired during the marriage. See Bladow v. Bladow, 665 N.W.2d 724 (N.D.2003); and In re Marriage of Simon, 856 P.2d 47 (Colo.Ct.App.1993). Another approach, sometimes referred to as the unitary approach, deems the settlement payment to be the injured spouse’s separate property regardless of when the settlement payment is acquired. See, e.g., Fleitz v. Fleitz, 200 A.D.2d 874, 606 N.Y.S.2d 825 (1994). The third approach is sometimes referred to as the analytic approach. See Bollad v. Nieporte-Bollaci, 863 So.2d 440 (Fla.Dist.Ct.App.2003); Tynes v. Tynes, 860 So.2d 325 (Miss.Ct.App.2003); and Sullivan v. Sullivan, 159 S.W.3d 529 (Mo.Ct.App.2005). Under the analytic approach, “to the extent that its purpose is to compensate an individual for pain, suffering, disability, disfigurement, or other debilitation of the mind or body, a personal injury award constitutes the separate non-marital property of an injured spouse.” Hardy v. Hardy, 186 W.Va. 496, 501, 413 S.E.2d 151, 156 (1991); and Staton v. Staton, 218 W.Va. 201, 206, 624 S.E.2d 548, 553 (2005). Likewise, the portion of a personal-injury settlement intended to compensate the injured spouse for loss of future wages is deemed to be that spouse’s separate property under the analytic approach. Bandow v. Bandow, 794 P.2d 1346, 1348-49 (Alaska 1990). However, “economic losses, such as past wages and medical expenses, which diminish the marital estate are distributable as marital property when recovered in a personal injury award or settlement” under the analytic approach. Hardy, 186 W.Va. at 501, 413 S.E.2d at 156. In Bandow, the Alaska Supreme Court explained the rationale underlying the analytic approach as follows:

“Damages for pain and suffering, mental anguish, and the like compensate for a loss which is so personal to the claimant spouse that classifying them as marital property would be inequitable.
“ ‘Nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage attending severe bodily injury. Mental injury, as well, has many of these characteristics. Equally personal are the effects of even mild or moderately severe injury. None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse. Why, then, should the law, seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse? In such case the law would literally heap insult upon injury.... The only damages truly shared are ... the diminution of the marital estate by loss of past wages or expenditure of money for medical expenses. Any other apportionment is unfair distribution.’”

Bandow v. Bandow, 794 P.2d at 1349 (quoting Amato v. Amato, 180 N.J.Super. 210, 218-19, 434 A.2d 639, 643 (App.Div.1981)).

We find the rationale underlying the analytic approach persuasive. Accordingly, we adopt that approach for determining whether a spouse’s personal-injury settlement or award is marital property or the separate property of the injured spouse. Under the analytic approach, the spouse claiming that the settlement or award is his or her separate property bears the burden of proving that claim. See Bandow, 794 P.2d at 1350. Likewise, if the other spouse claims that a portion of the settlement or award is compensation for loss of consortium and, therefore, constitutes his or her separate property, he or she shall bear the burden of proof with respect to that claim. Id.

In the case now before us, the trial court did not have before it any evidence establishing that the settlement payment was the husband’s separate property under the analytic approach. Consequently, we must reverse the divorce judgment insofar as it divided the marital property because the trial court’s omission of the settlement payment from the division of marital property is not supported by the evidence. We remand the case to the trial court for the trial court to reconsider the division of marital property in light of this opinion. However, because the husband was not on notice that he bore the burden of proof with respect to the issue whether the settlement payment was marital property or his separate property, we instruct the trial court, on remand, to allow the husband to introduce additional evidence regarding that issue and to allow the wife to introduce evidence in rebuttal of the husband’s evidence. Because the award of alimony is intertwined with the division of property, we also reverse the trial court’s judgment as to the award of alimony so that, on remand, the trial court may reconsider its award of periodic alimony in conjunction with its reconsideration of its division of the parties’ marital property. See Chambers v. Chambers, 823 So.2d 709, 716 (Ala.Civ.App.2001).

Our reversal of the trial court’s judgment as to the division of marital property and the award of alimony based on the first issue raised by the wife renders moot the second issue raised by the wife, which is whether the trial court erred in its division of the parties’ personal property, and the third issue raised by the wife, which is whether the trial court abused its discretion in limiting the award of periodic alimony to the wife to the amount of $300 per month. The fourth issue raised by the wife is whether the trial court erred in ordering the husband to pay her premiums for health-insurance coverage under the husband’s policy pursuant to COBRA for a period of only six months. COBRA allows the wife to maintain her health-insurance coverage with the husband’s health insurer for a period of 36 months. See 29 U.S.C. §§ 1162(2)(A)(iv) and 1163(3). The wife suffers from, among other things, two bulging disks in her back and rosacea. She requires regular treatment for the rosacea and periodic treatment for the bulging disks. She earned only $10,413 the year before the trial, and her employer does not provide her with health insurance. The husband testified that he anticipated earning $52,000 to $54,000 in 2005. Given the disparity in the parties’ incomes, the wife’s health problems, her need for medical treatment, and her inability to obtain health insurance through her employer, we conclude that the trial court erred in failing to require . the husband to pay the wife’s health-insurance premiums for at least the 36 months she was entitled to coverage under the husband’s health-insurance policy pursuant to COBRA. Cf. Wilkinson v. Wilkinson, 828 So.2d 924, 928 (Ala.Civ.App.2001) (holding that the trial court erred in failing to require a wife, at a minimum, to pay the husband’s health-insurance premiums for the 36 months he was entitled to coverage under the wife’s policy pursuant to COBRA).

Finally, each of the parties has requested an award of an attorney’s fees on appeal. We grant the wife’s request and award her an attorney’s fee in the amount of $1,250. We deny the husband’s request.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, J., concurs.

CRAWLEY, P.J., concurs specially, with writing.

PITTMAN and MURDOCK, JJ., concur in the result, without writing.

CRAWLEY, Presiding Judge,

concurring specially.

Although I continue to adhere to the view I expressed in dissent in Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996), I conclude that the analytic approach adopted by the main opinion is appropriate under the particular facts of this case.

      . In the case now before us, the wife does not contend that any portion of the settlement payment represents compensation for her loss of consortium.

      . Merriam-Webster’s Collegiate Dictionary 1082 (11th ed.2003) defines "rosacea” as "a chronic inflammatory disorder involving esp. the skin of the nose, forehead, and cheeks that is characterized by congestion, flushing, tel-angiectasia, and marked nodular swelling of tissues esp. of the nose.”