text:
    R.J.N. v. B.D.S.
    2090580.
    Court of Civil Appeals of Alabama.
    Oct. 8, 2010.

      David M. Harrison, Jasper, for appellant.
    Glennon F. Threatt, Birmingham, for appellee.
   MOORE, Judge.

R.J.N. appeals from a judgment of the Walker Circuit Court dismissing all of her claims regarding child support and paternity.

On May 29, 2003, R.J.N. filed in the Walker Juvenile Court a petition requesting that B.D.S. be ordered to pay child support for the benefit of their minor child, K.S. On April 18, 2007, the juvenile court entered a judgment setting B.D.S.’s child-support obligation and establishing his child-support arrearage. On May 2, 2007, B.D.S. filed a notice of appeal to the Walker Circuit Court. On appeal, the circuit court determined that paternity had not been established in the juvenile court, and it entered an order declaring the juvenile court’s judgment void and granting the parties leave to seek the establishment of paternity in the circuit court. R.J.N. appealed to this court; this court dismissed the appeal as being from a nonfinal judgment on December 8, 2009. R.J.N. v. B.D.S. (No. 2090097, Dec. 8, 2009), — So.3d-(Ala.Civ.App.2009) (table).

Subsequently, on February 10, 2010, the circuit court entered a judgment dismissing the case. On March 3, 2010, R.J.N. filed her notice of appeal to this court. On March 10, 2010, R.J.N. filed, in the circuit court, a motion for an extension of time to file her appeal, pursuant to Rule 77(d), Ala. R. Civ. P. On March 31, 2010, the circuit court entered an order granting RJ.N.’s motion for an extension of time to file her appeal.

Initially, we note that B.D.S. has filed motions with this court requesting that the appeal be dismissed as being untimely filed; we dismiss the appeal, albeit for reasons different than those asserted by B.D.S.

Because this case was proceeding in the circuit court as an appeal from a child-support action in the juvenile court, the notice of appeal from the circuit court to this court was required to be filed within 14 days of the entry of the circuit court’s February 10, 2010, judgment, i.e., on or before February 24, 2010. H.E.H. v. K.L.C., 976 So.2d 458, 459 (Ala.Civ.App. 2007). Pursuant to Rule 77(d), a trial court may, under certain circumstances, grant a 30-day extension from the expiration of the original appeal deadline to file a notice of appeal. Altmayer v. Stremmel, 891 So.2d 305, 308 (Ala.2004). In the present case, that 30-day period expired on March 26, 2010. “After that date, the [circuit] court had ‘no jurisdiction to afford [R.J.N.] any relief under Rule 77(d).’ ” Altmayer, 891 So.2d at 308 (Quoting Hopper v. Sims, 111 So.2d 122, 125 (Ala.Civ. App.2000)).

The circuit court purported to grant R-J.N.’s motion for an extension of time on March 31, 2010, after the 30-day period had expired. Because the 30-day period under Rule 77(d) had expired, the circuit court had no jurisdiction to afford R.J.N. any relief under Rule 77(d); “therefore, the [circuit] court’s order was a nullity.” Altmayer, 891 So.2d at 308. “Because [RJ.N.’s] Rule 77(d) motion was not timely granted, the last day on which [she] could file [her] notice of appeal was not affected, and [her] appeal was not timely filed.” Id. Thus, we must dismiss her appeal. Alt-mayer, 891 So.2d at 309-10.

Both the motion to dismiss and the amended motion to dismiss filed by B.D.S. are denied.

APPEAL DISMISSED.

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

      . We note, however, that an order of child support impliedly includes a determination of paternity. See D.C.L. v. Marion County Dep't of Human Res., 9 So.3d 506, 510 (Ala.Civ. App.2008).

      . We note that, when a juvenile-court judgment on appeal to a circuit court is declared void by the circuit court, the circuit court would have no jurisdiction to perform any act other than dismissing the appeal. See, e.g., Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ.App.2009) ("A void judgment will not support an appeal, and 'an appellate court must dismiss an attempted appeal from such a void judgment.’ ” (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008))).


source: Caselaw Access Project

author: MOORE, Judge. THOMAS, Judge,

license: Public Domain

text:
    Sherri CLARK v. William T. CLARK.
    2081176.
    Court of Civil Appeals of Alabama.
    Oct. 8, 2010.

      J.R. Herring, Dothan, for appellant.
    Daniel F. Johnson and Holly L. Sawyer of Lewis, Brackin, Flowers & Johnson, Dothan, for appellee.
   MOORE, Judge.

Sherri Clark (“the wife”) appeals from a judgment of the Houston Circuit Court divorcing her from William T. Clark (“the husband”) to the extent that the judgment divided the parties’ property and declined to award her alimony or to reserve the right to award her alimony in the future. We affirm in part and reverse in part.

Procedural History

On May 9, 2008, the wife filed a complaint for a divorce from the husband. On June 13, 2008, the husband filed an answer to the complaint and counterclaimed for a divorce. The wife answered the counterclaim on June 18, 2008. On September 23, 2008, the trial court entered a temporary order divorcing the parties and incorporating an “Interim Stipulation and Agreement” entered by the parties but reserving all other issues until a final hearing.

After an ore tenus hearing, the trial court entered a final judgment on July 8,

2009, ordering the parties to sell the marital home and their second home; ordering the parties to equally divide the proceeds from the sale of both properties after paying the first and second mortgages on the properties and paying the fees and expenses associated with the sales; valuing the parties’ business, Buddy Clark Carpet, L.L.C. (“the business”), a retail floor-covering company of which each party owned 50%, at $6,419.17; divesting the wife of her interest in the parties’ business; awarding the wife $3,209.59 for her interest in the business; awarding the parties their respective retirement accounts; and ordering the parties to equally divide the household goods and furnishings in the marital home. The trial court also awarded the husband the parties’ two boats, a Range Rover automobile, the lawn equipment, and all of his personal property located in the shed adjacent to the marital home. The wife was also awarded her jewelry, a Chevrolet Silverado truck, and her personal effects. The wife was ordered to pay the balances owed on two Visa credit cards, a Saks Fifth Avenue credit card, and a Neiman Marcus credit card and to pay her personal medical bills. The husband was ordered to pay all other marital debt and to pay the mortgage payments on the marital home and the second home until those properties were sold.

On July 27, 2009, the wife filed a motion to alter, amend, or vacate the trial court’s judgment; that motion was denied on September 1, 2009. The wife filed her notice of appeal on September 28, 2009.

Discussion

I.

In its final judgment, the trial court divested the wife of her interest in the business, and it ordered the husband to pay the wife $3,209.59 for that interest. In reaching that value, the trial court relied exclusively on the expert testimony of a “knowledgeable” certified public accountant who based his value of the business on the “income approach” to valuation. See Birmingham, News Co. v. Horn, 901 So.2d 27, 65-66 (Ala.2004), overruled on other grounds by Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008) (discussing various business-valuation methods).

On appeal, the wife argues that the trial court “erred in valuing [her] interest in [the business] contrary to the provisions of the operating agreement entered into by the parties.” The evidence shows that, when the parties formed the business in 2000, they signed an operating agreement. See Ala.Code 1975, § 10-12-24 (authorizing members of limited-liability company to enter into governing operating agreement). Section 2.2 of the operating agreement states, in pertinent part:

“2.2. ... In the case of Dissociation of a Member due to Section 1.2 or Section 1.8 of this Article XIII, the purchase price for the Membership Interest shall be determined as follows: (a) the Members (other than the Dissociated Member) shall appoint one (1) qualified appraiser and the Dissociated Member or his or her personal representative shall appoint one (1) qualified appraiser. The compensation of each appraiser shall be paid by the party appointing such appraiser; (b) both appraisers shall, in the utmost good faith, consult and conduct such examinations as are reasonably necessary to reach an agreed value and therefore the purchase for the Membership Interest of the Dissociated Member, which value and therefore purchase price, if agreed upon by both appraisers, shall be final and binding upon the Company, the Dissociated Member or her or her estate, if applicable, and the other Members; (c) if the two (2) appraisers cannot agree upon the value of the Membership Interest of the Dissociated Member the two appraisers shall appoint a third qualified appraiser and the three (3) appraisers shall conduct their examination as set forth above and the decision of the simple majority of the appraisers shall be final and binding upon the Company, the Dissociated Member or his or her estate, applicable and the other Members.”

Section 2.2 further defines “qualified appraiser” to mean

“an active and practicing commercial real estate appraiser in active practice for the last five (5) consecutive years prior to such appointment, or an active and practicing commercial real estate appraiser with an MAI certification or designation, regardless of the number of years in consecutive practice.”

The wife maintains that the operating agreement “provide[s], among other things, the manner in which the value of the share of the members would be determined should they be involuntarily dissociated from the business.” The wife further contends that she became involuntarily dissociated from the business when the trial court divested her of her interest in the business. The wife “submit[s] that the provisions of [§] 2.2 ... require! ] the determination of the [w]ife’s membership interest by evaluating the business with active and practicing commercial real estate appraisers with 5 consecutive years of experience or MAI certifications.” It is undisputed that the trial court, by relying on the testimony of an accountant who did not meet those criteria, did not determine the value of the business in accordance with § 2.2 of the operating agreement. Therefore, the issue, as framed by the wife, is whether the trial court erred in failing to follow the valuation procedure set out § 2.2 after involuntarily dissociating the wife from the business pursuant to the terms of the divorce judgment.

The portion of § 2.2 of the operating agreement upon which the wife relies begins: “In the case of Dissociation of a Member due to Section 1.2 or Section 1.3 of this Article XIII.... ” (Emphasis added.) Section 1.2 of Article XIII pertains to dissociation of a member due to that member’s filing bankruptcy. Section 1.3 of Article XIII pertains to dissociation of a member due to the death of the member or the entry of a court order declaring that member incompetent to manage the member’s estate. Neither § 1.2 nor § 1.3 applies to an involuntary dissociation caused by a court’s order requiring a member to divest his or her interest in the business as part of a divorce proceeding.

The first part of § 1.5 of Article XII states that, “[sjhould a member desire to gift, sell, or otherwise convey ... his or her Membership Interest ...the member must first offer to sell the interest to the other members. In the event the selling and purchasing members cannot agree on the value of the membership interest, “then the purchase price shall be determined using the same procedure as is used to determine the purchase price in the event of the death of a Member as hereinafter set forth,” i.e., the procedure set out in § 2.2. By its plain terms, § 1.5 applies when one member voluntarily elects to convey his or her membership interest. In her appellate brief to this court, the wife concedes that she did not voluntarily elect to convey her membership interest in the business; she maintains that she was forced to sell her interest in the business involuntarily by order of the trial court. Hence, based on the wife’s argument, § 1.5 simply does not apply.

By the plain terms of the operating agreement, the valuation procedure set out in § 2.2 applies only in the case of the death of a member, the bankruptcy of a member, the entry of an order declaring a member incompetent to manage the member’s estate, or the voluntary conveyance of a membership interest to another member. See Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala.1982) (“[A] court cannot refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties.”). Although the parties could have provided for a general provision that requires valuation according to the procedure set out in § 2.2 in the event of any type of dissociation, the operating agreement contains no such provision. Similarly, the parties, who were married at the time they formed the business as its only members, could have provided that the valuation procedure would apply in the event a divorce led to the involuntary dissociation of a member. However, the parties elected not to include any such provision in the operating agreement. This court is powerless to rewrite the agreement for the parties. Commercial Union Ins. Co. v. Rose’s Stores, Inc., 411 So.2d 122, 124 (Ala.1982) (“It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist.”)- Rather, we are compelled to read and enforce the contract between the parties as written. Shoney’s LLC v. MAC East, LLC, 27 So.3d 1216, 1223 (Ala.2009) (“[W]e maintain our long-held position that a contract, under Alabama law, should be construed as written.”).

Because the terms of § 2.2 of the operating agreement do not govern valuation when a member becomes involuntarily dissociated from the business due to a divorce judgment, we reject the wife’s argument that the trial court was obligated to follow the valuation procedure set out in § 2.2. We hold that the trial court did not commit any error by failing to follow the procedure set out in § 2.2 of the operating agreement when valuing the interest of the parties in the business for the purposes of equitably dividing that marital property.

II.

The wife next argues that the trial court exceeded its discretion in its division of property and its failure to award her periodic alimony.

“The trial court is afforded a wide degree of discretion in dividing the marital assets of the parties upon divorce. Moody v. Moody, 641 So.2d 818 (Ala. Civ.App.1994). The only limitation on that discretion is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812 (Ala.Civ.App.1984). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993). In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their age and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986) The property division made by the trial court will not be set aside on appeal absent a palpable abuse of that discretion. Id.”

Cantrell v. Cantrell, 773 So.2d 487, 489-90 (Ala.Civ.App.2000).

At the time of the final hearing, the parties had been married for 18 years. The husband was 54 and the wife was 44. The wife testified that she had no health problems, and there was no testimony indicating that the husband had any health issues. The parties presented little evidence regarding any fault for the breakdown of the marriage. Both parties had worked throughout the marriage. In 2000, the parties started the business and shared the income from the business equally. The husband testified that he had attended to the day-to-day operations of the business and that the wife had been in charge of the bookkeeping. The husband testified that, at the time of the trial, the wife was no longer working for the business and that he was drawing $3,000 per week from the business. The husband had been paying all the parties’ bills except for bills relating to four of the wife’s credit cards. The husband testified that the wife could get a job as a bookkeeper and that he pays his current bookkeeper $400 per week.

At trial, the husband testified that the marital home was listed for sale for $450,000 and that there was a first mortgage on the home with an outstanding balance of $193,173. He testified that the home was also subject to a home-equity line of credit with a balance of approximately $172,000. He testified that the first-mortgage payment on the house is $1,351.50 per month; a statement from the home-equity line of credit indicated that the minimum payment on that account is $952.21 per month. The husband testified that the parties also own a second house that he valued at approximately $155,000. He testified that the second house is subject to $128,777 in outstanding indebtedness and that the monthly payment on the indebtedness is $1,000.83.

The husband also testified that the parties own a 2003 Sea Ray 340 Sundancer boat that is valued at approximately $120,000 but that is subject to an outstanding indebtedness of $145,000. He also testified that the parties own a 2006 Triton boat worth approximately $17,000. He testified that the parties had probably used the home-equity line of credit to pay for a large portion of the Triton boat and that there is no other indebtedness associated with the boat. The husband testified that he has no retirement funds because he had withdrawn those funds and used them for living expenses during the divorce proceedings. The husband testified that the parties own a 2004 Silverado truck that is worth between $10,000 and $12,000 and that he owed two monthly payments of $527.62 on the truck. He also testified that the parties own a 2006 Range Rover automobile valued at approximately $43,000 with associated indebtedness of $32,986.49; the monthly payment on that automobile is $1,575.61. He testified further that the wife should have approximately $40,000 in her retirement account.

The wife testified that she has “a lot” of jewelry, including a ring that was purchased for $19,000. She also testified that she had sold her Louis Vuitton luggage for approximately $2,000. The wife testified that she owes $2,326.75 on a Saks Fifth Avenue credit card and that she had purchased items for herself, the parties’ children, and the husband using that card. She also testified that she owes $2,289 on a Neiman Marcus credit card. The wife testified that the debt on her credit cards had been accumulated over the previous 10 years. The husband, however, testified that he had not purchased anything at Neiman Marcus or Saks Fifth Avenue. The wife also testified that she owed a total of $24,600 on two Visa credit cards; she testified that, if she were to agree “to settle” the two accounts, she could save $9,761. She testified that the balances on the Visa cards had been accumulated both during the parties’ marriage and after the parties had separated. The husband testified that, before the divorce proceedings, he did not know that the Visa credit cards existed and that he did not think that any charges on those cards had been for his benefit. The wife, on the other hand, testified that the husband knew about those cards.

Based on the foregoing, as well as the trial court’s valuation and disposition of the parties’ business interests, our calculations reveal that the trial court awarded the husband net assets of $59,692.86, or 35% of the marital property, and awarded the wife net assets of $110,279.84, or 65% of the marital property.

The evidence indicated that the business had provided the parties with a good living during the parties’ marriage. The husband testified, however, that, due to a poor economy, sales in the business had declined 50-60% and that it will be virtually impossible to keep the business operating absent an increase in sales or unless the business obtains relief from some of its debt. The accountant also testified that the business is “cutting it too close” to be considered an ongoing, long-term viable business. He testified that, if it takes six months or a year for the economy to recover, he did not see how the business could survive the way it was going. The wife testified that she wanted periodic alimony in the amount of her previous salary and “draws” from the business.

Based on the foregoing evidence, we cannot conclude that the trial court exceeded its discretion in dividing the parties’ property and declining to award the wife alimony. The evidence is clear that the wife is relatively young and capable of working. She received the majority of the marital property. Further, although the parties had been able to earn a sizeable income from the business, which the husband was awarded in the divorce judgment, it was clear that the business was performing poorly at the time of the trial and that it may not even survive. The trial court obviously, and correctly, took those facts into consideration in rendering the property division and alimony portions of its judgment.

III.

The wife last argues that the trial court exceeded its discretion in declining to reserve the right to award her periodic alimony in the future. “The trial court should reserve jurisdiction over the issue of alimony if the facts indicate that future circumstances may entitle either party to a later award of alimony.” Williams v. Williams, 905 So.2d 820, 828 (Ala.Civ.App.2004). “The failure either to award periodic alimony or to reserve the right to award periodic alimony at a later date precludes a trial court from later awarding periodic alimony.” McClellan v. McClellan, 959 So.2d 658, 664 (Ala.Civ. App.2006).

In Williams, this court reversed a trial court’s judgment for failing to reserve the issue of periodic alimony when the “evidence indicate[d] that, as a farmer, the husband’s income [was] likely to vary considerably from year to year, and may increase substantially, while the evidence tendfed] to indicate that the wife’s income [would] not increase substantially.” 905 So.2d at 828-29 (footnote omitted). Similarly, in the present case, the parties had enjoyed a high standard of living as a result of their working together in the business. Although the evidence indicated that the business had recently done poorly due to a slow economy, the evidence indicated that, if the economy improved, the husband could revive the business. Thus, like the husband’s income in Williams, the husband’s income in the present case may increase substantially. Considering the length of the parties’ marriage and the fact that the husband admitted that the wife had been an important part of the business, we conclude that the trial court erred in declining to reserve the right to award the wife periodic alimony in the future.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment to the extent that it declined to reserve the right to award the wife periodic alimony in the future. We affirm the trial court’s judgment in all other respects. The cause is remanded for the entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., concurs.

PITTMAN and BRYAN, JJ., concur in the result, without writings.

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

At first blush, the main opinion appears to be based on a standard interpretation of a legal contract. In actuality, the court has rewritten the contract under the guise of construing it. The result sets a dangerous precedent and represents an affront to the principles of contract law in Alabama. By rewriting the operating agreement, this court has upended a legal foundation of business development in Alabama. Businesses depend on courts to settle disputes on a whole range of issues; but nothing, not even workers’ compensation law, is so fundamental to business as contract law.

“It is well established that the constitution, bylaws, rules and regulations of a voluntary association constitute a contract between the association’s members, which is binding upon each member so long as the bylaws, etc., remain in effect. Medical Society of Mobile County v. Walker, 245 Ala. 135, 16 So.2d 321 (1944). Any dispute between a voluntary association and one of its members concerning the construction or validity of the association’s constitution, bylaws, rules and regulations constitutes a dispute as to the construction or validity of a written contract.”

Wells v. Mobile County Bd. of Realtors, Inc., 387 So.2d 140, 142 (Ala.1980).

“When interpreting a contract, this Court must first look to the plain language of the contract and determine whether that language is ambiguous. ‘[A] court should give the terms of the agreement their clear and plain meaning and should presume that the parties intended what the terms of the agreement clearly state.’ Ex 'parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala. 1998) (citing Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409 (Ala.1993)). ‘A court may not make a new contract for the parties or rewrite their contract under the guise of construing it.’ Ex paite Dan Tucker Auto Sales, 718 So.2d at 35-36 (citing Estes v. Monk, 464 So.2d 103 (Ala.Civ. App.1985)).”

Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004).

In the main opinion, the court determines that the trial court’s order resulted in an involuntary dissociation of the wife from the business. The court further determines that the involuntary dissociation of the wife permitted the trial court to value the business as it did without violating the terms of the operating agreement. I respectfully disagree.

The article of the operating agreement regarding disassociation, Article XIII, addresses what to do with a member’s interest once he or she is no longer a member because of, among other reasons, death, bankruptcy, or voluntary withdrawal from the business. The trial court ascertained the value of the wife’s interest in the business and ordered that her interest be awarded to the husband upon payment of that sum. The trial court did not point to the article of the operating agreement that allowed it to make such an award. Furthermore, in the main opinion, the court fails to explain by what right a trial court can dissociate a member of an LLC. The actions of the trial court and this court are not supported by any provision in the operating agreement.

In fact, in the main opinion, this court ignores a provision in the operating agreement. In order to dissociate the wife from the business, the trial court first disposed of the wife’s interest in the business through a conveyance to the husband. Section 2 of Article XII, the article of the operating agreement containing provisions regarding the disposition of a member’s interest in the business, clearly states that “any attempted Disposition of a Membership Interest, or any part thereof, not in compliance with this Article is null and void ab initio.” Rather than correctly interpreting this provision as contemplating every circumstance by which an interest in the business might be disposed, the court, in the main opinion, implies that the burden is on the parties, during the formation of an LLC, to explicitly provide for every scenario in which an interest in an LLC may be disposed. Such a requirement is unduly burdensome and would have negative effects on the business climate of our state. Businesses have long depended on the certainty that contracts will be interpreted by their plain meaning and not arbitrarily rewritten by the judicial system. Union Cent. Relief Ass’n v. Johnson, 198 Ala. 488, 491, 73 So. 816, 817 (1916). Contracts should not be ignored merely because they are interpreted in conjunction with divorce trials. The trial court was bound to enforce the operating agreement.

The wife did not merely object to the qualifications of the accountant at trial. The wife also sought proper interpretation and enforcement of the operating agreement. The wife insisted that a panel of certified appraisers, with one selected by each party, produce a valuation as provided for in the operating agreement. Instead of enforcing the operating agreement, the trial court relied solely on the husband’s accountant to value the business. In order to justify the trial court’s action, this court, in the main opinion, uses a contractual interpretation that was not discussed by anyone at trial. Both parties argued about whether the wife, by filing for divorce, had dissociated herself from the business. The husband did not argue that, because the wife did not desire to sell her share in the business, the operating agreement did not apply. In fact, when questioned by her attorney, the wife testified:

“Q. Would you agree that you told me [in your deposition] in January of 2009, just a few months ago, with respect to this business that you wanted [the husband] to buy your interest in the business?

“A. I did.”

In the main opinion, the court conflates the wife’s arguments at trial. Although it is true that the wife wanted to maintain her interest in the business, the wife clearly argued that, in the alternative, the court must abide by the provisions of the operating agreement in fashioning any disposition of that interest. Furthermore, although the wife suggested to the trial court that the parties’ contract dispute regarding her dissociation from the business should be addressed in a separate action, she did not waive her argument that the trial court must follow the operating agreement which, she asserted, was binding on the court, because her counsel declined to continue to assert an argument about the applicability of a separate action. The argument that the trial court’s action was contrary to the operating agreement is central to the wife’s appeal. Lastly, I respectfully disagree with the court that the “valid ground” on which it relies— namely, that “the terms of § 2.2 of the operating agreement do not govern valuation when a member becomes involuntarily dissociated from the business due to a divorce judgment,” 58 So.3d at 1282 — is a valid ground on which it may affirm the trial court’s judgment; instead, I conclude that the operating agreement does govern the valuation of the wife’s interest in the business.

Article XII of the operating agreement contains both a ban on any disposition of a member’s interest in the business that is not in accordance with the article and a mechanism for disposition of a member’s interest if the members cannot agree on a valuation of the member’s interest. First, Article XII, § 1.5, is triggered because the wife did desire to sell her interest in the business. The parties were in court, in part, because they could not agree on a purchase price for the wife’s interest in the business. The wife made clear during the trial that, in addition to the divorce, she sought enforcement of the operating agreement. In the main opinion, the court asserts that Article XII, § 1.5, is not triggered because “the wife did not, in fact, ‘desire to gift, sell, or otherwise convey her interest in the business to the husband.” 58 So.3d at 1281 n. 3. The court then asserts that “the trial court plainly stated that it was ordering the wife to divest herself of her interest in the business against her stated desire to continue running the business with the husband.” 58 So.3d at 1281 n. 3. However, the wife stated that, if she could not retain her interest in the business, she desired to sell it to the husband in a manner consistent with the operating agreement. Therefore, Article XII, § 1.5, applies.

Second, since the members of the business could not agree on a purchase price for the wife’s interest in the business, Article XII, § 1.5, further states that “the purchase price shall be determined using the same procedure as is used to determine the purchase price in the event of the death of a Member.” As correctly stated in the main opinion, the above quotation refers to Article XIII, § 2.2. Despite its acknowledgment that Article XII, § 1.5, triggers Article XIII, § 2.2, the court, in the main opinion, accuses this judge of attempting to rewrite the operating agreement because, the court asserts, the wife did not meet one of the triggering requirements listed in Article XIII, § 2.2. The fact that the wife is not dead, is not incompetent, and did not voluntarily dissociate herself from the business is not fatal to the wife’s position that the operating agreement controls. Rather, because the wife desired to sell her interest in the business to the husband, the trigger for the applicability of Article XIII, § 2.2, is clearly found in Article XII, § 1.5.

Third, as accurately described in the main opinion, Article XIII, § 2.2, provides that a panel of appraisers is to value the business. Lastly, neither the trial court nor this court, in the main opinion, can point to any section of Article XII that authorizes the action of the trial court. Because Article XII bans any disposition of a member’s interest in the business not contained within the article, the trial court’s disposition was not in compliance with the operating agreement and the court’s reasoning in the main opinion is not a valid ground on which it can affirm the judgment of the trial court.

The parties shared equally in the ownership and management of the business. The husband oversaw day-to-day operations of the business, including the marketing and selling of the floor coverings, while the wife maintained the accounting records. This arrangement was governed by a valid operating agreement created at the formation of the business. The business began operations in 2000 when the wife convinced the husband that he was being treated unfairly by his previous employer and could, with her assistance as office manager and bookkeeper, start a 50/50 business venture with her. Consequently, they formed the business as an LLC incorporated in Alabama that was governed by a valid operating agreement. Now, the founder of the business has been denied her interest in any future income generated by that business by a court that completely and openly ignored the operating agreement that governed the business.

The main opinion is a significant obstacle to the improvement of the business climate in our state. It advances arbitrary judicial interference into the governance of businesses. “ ‘Great damage is done where businesses cannot count on certainty in their legal relationships and strong reasons must support a court when it interferes in a legal relationship voluntarily assumed by the parties.’ ” Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 638 (Ala.1993) (quoting City of Artesia v. Carter, 94 N.M. 311, 314, 610 P.2d 198, 201 (N.M.Ct.App.1980)).

By providing a framework for a member’s dissociation from the business and the disposition of that member’s interest, the operating agreement reflects an obvious desire to prevent courts from interfering in the governance of the business. It is notable that, rather than permitting a court to value the business, the operating agreement provided for valuation by certified appraisers. Yet, in this case, the court is allowed to take the business from one party and redistribute it to the other according to a valuation assigned by the court. Although the amount at stake and the size of this business is small in this particular case, the main opinion is a significant setback to businesses and entrepreneurs desiring to control their own affairs.

The wife further argues that the trial court erred by not awarding periodic alimony or by not reserving that issue for future determination and that it exceeded its discretion in dividing the marital property. Because I do not agree with the conclusion in the main opinion that the trial court properly valued the business, I would not consider these issues at this time. Issues of alimony and property division are usually closely related. Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000). Thus, I would instruct the trial court to reconsider its entire judgment after the business is valued in a manner consistent with the operating agreement.

Because I conclude that the trial court should have followed the provisions of the operating agreement when valuing the wife’s interest in the business, I respectfully dissent.

      . The quoted material is taken from the wife’s "Statement of Issues" in her brief to this court. In the "Summary of the Argument" and in the main body of her argument in her brief to this court, the wife also contends, alternatively, that the trial court valued the property in a manner inconsistent with this court’s holding in Shewbart v. Shewbart, 19 So.3d 223, 232 (Ala.Civ.App.2009) (reversing a trial court’s judgment because the trial court valued the sole proprietorship based solely on the worth of the materials owned and used in the business). The wife, however, did not raise that issue before the trial court. Therefore, she may not assert that argument for the first time on appeal. State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005). Hence, we do not consider, as the dissent improperly does, whether the wife has been "denied her interest in any future income generated” by the business. 58 So.3d at 1289 (Thomas, J., dissenting).

      . Section 2 of Article XII of the operating agreement provides, in pertinent part: "Any attempted Disposition of a Membership Interest, or any part thereof, not in compliance with this Article is null and void ab initio.” In her postjudgment motion filed with the trial court, the wife argued, based in part on the foregoing provision, that the trial court could not dispose of her membership interest in the business at all. On appeal, however, the wife has abandoned that position entirely. The wife does not argue that the trial court erred in divesting her of her membership interest. When no argument is contained in an appellate brief, that argument is considered waived. Brewer v. Bradley, 431 So.2d 544, 546 (Ala.Civ.App.1983). Hence, the wife has waived any claim that § 2 of Article XII, or any other provision of the operating agreement for that matter, prohibited the trial court from disposing of her interest in the business. See Mullins v. Mullins, 416 So.2d 1063 (Ala.Civ.App.1982).
      Despite the fact that a trial court’s authority to dissociate a member of an LLC is not even an issue in this appeal, the dissent attempts to fault this court for "failing] to explain by what right a trial court can dissociate a member of an LLC.” 58 So.3d at 1286 (Thomas, J., dissenting). Although not necessary for a resolution of the issues on appeal, to respond to the dissent, we note that Alabama law holds that, in equitably dividing marital property in a divorce action, a trial court may order one or both parties to convey an interest in a jointly owned business. See Mosley v. Builders South, Inc., 41 So.3d 806, 812-13 (Ala.Civ.App.2010); and TenEyck v. TenEyck, 885 So.2d 146, 154 (Ala.Civ.App.2003).

      . In her brief to this court, the wife states that "it cannot be argued that the end result of the trial court's judgment was an involuntary dissociation of the [w]ife in the parties’ L.L.C.” Despite the wife’s clear position on that point, the dissent claims there is some "confusion” as to the wife’s argument on appeal. 58 So.3d at 1287 n. 11 (Thomas, J., dissenting). To clarify, the wife does not contend at any point in her brief that § 1.5 applies because she "desired” that the husband buy her interest in the business, as the dissent argues at length. 58 So.3d at 1288 (Thomas, J., dissenting). The wife obviously recognized that that argument would be disingenuous. At trial, the wife clearly testified that she desired to continue operating the business jointly with the husband. At that time, the wife did not, in fact, "desire to gift, sell, or otherwise convey” her interest in the business to the husband. In its judgment, the trial court plainly stated that it was ordering the wife to divest herself of her interest in the business against her stated desire to continue running the business with the husband. It is not the function of an appellate court to advocate a position on behalf of an appellant, Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala.Civ.App.2006), especially one that is inconsistent with the facts of the case as found by the trial court and one that is in direct conflict with the position of the appellant.

      . The dissent suggests that the court should read such a general provision into the operating agreement because it would be "unduly burdensome” “on the parties, during the formation of an LLC, to explicitly provide for every scenario in which an interest in an LLC may be disposed.” 58 So.3d at 1286 (Thomas, J., dissenting). However, the dissent cites no legal authority to support the proposition that a court can add terms to a contract on the ground that it would have been difficult for the parties to have originally included those terms. Regardless of the difficulty the parties hypothetically could have encountered in drafting a more comprehensive operating agreement, the fact remains that the operating agreement simply does not contain any provision, general or specific, that requires the valuation procedure set out in § 2.2 to be used in the event of an involuntary dissociation pursuant to the terms of a divorce judgment. We cannot ignore the actual terms of the operating agreement and arbitrarily interfere with the contractual rights of the parties by adding such a provision into the operating agreement.

      . The dissent claims this court is "rewriting the operating agreement.” 58 So.3d at 1285 (Thomas, J., dissenting). In actuality, it is the dissent that attempts to rewrite the operating agreement to include a provision that would require the valuation procedure contained in § 2.2 to apply to an involuntary dissociation due to divorce when no such provision exists. This court is simply enforcing the operating agreement as written and not incorporating any terms that would allow the valuation procedure set out in § 2.2 to apply to a situation not addressed in the operating agreement, either generally or specifically. In so doing, this court does not, as the hyperbole of the dissent maintains, create "dangerous precedent [that] represents an affront to the principles of contract law in Alabama ... [and] ... upend[s] a legal foundation of business development in Alabama.” 58 So.3d at 1285 (Thomas, J., dissenting). In this opinion, the court merely properly observes the well-settled law that courts cannot create new contracts for the parties, as the dissent would have us do. See Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1055 n. 1 (Ala.2007) ("[T]he Constitution of Alabama prohibits this Court from substituting its 'belief' as to what one of the parties did or did not intend for the express terms to which both parties agreed in a contract and thereby impairing the obligation of contracts.”).

      . The dissent suggests that this court is basing its decision on a contractual interpretation the trial court did not consider. 58 So.3d at 1287 (Thomas, J., dissenting). We note that the trial court did not set forth any specific reason why it declined to follow the valuation procedure in § 2.2, and we recognize that it may have rested its decision on the same basis as this court. However, even if the trial court did not consider the ground relied upon in this opinion, " ‘[t]his [c]ourt may affirm a trial court's judgment on "any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.” ’ ” Unum Life Ins. Co. of America v. Wright, 897 So.2d 1059, 1082 (Ala.2004) (quoting General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003), quoting in turn Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003)). The validity of the ground relied upon in this opinion does not in any way depend on how the parties may or may not have interpreted the operating agreement at trial, as the dissent suggests, 58 So.3d at 1287 n. 11, because the meaning of an unambiguous contract is purely a question of law for the court. Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990).

      .Because we decide the issue on the foregoing ground, we do not decide the question whether the trial court would have been bound by the terms of the operating agreement had the agreement specifically provided a valuation procedure to be used in the event of a dissociation due to the divorce of one or more of the members.

      . There was also evidence presented indicating that both parties had taken loans from the business. The accountant testified that, if they elected not to pay the loans back, they would have to pay income taxes on the amount of those loans. The wife does not argue that she is required to pay back her loan. Further, there is no evidence regarding the amount of tax that she would owe; thus, we decline to take into account the amount of tax in our analysis.

      . We only considered the property for which there was evidence regarding the value of the property.

      . My emphasis on the reliance in the main opinion on an argument not mentioned by any party at trial is not meant to suggest that our court cannot affirm a judgment on any valid ground. Rather, it is meant to suggest that the fact that the court’s interpretation in the main opinion is not supported by either party’s construction of the operating agreement might be an indication that it is an improper construction that is not in accordance with the intent of the parties.

      . I note that the main reason for the confusion as to what the wife argued on appeal is a result of the reliance by the court, in the main opinion, on an interpretation of the operating agreement that the wife could not have reasonably been expected to defend on appeal. Both parties’ briefs to our court focus on whether under Ala.Code 1975, § 10 — 12— 36(b)(1)(d) & (e), the operating agreement applies in this case. The interpretation of the operating agreement was never an issue at trial.


author: PER CURIAM. SHAW, Justice WOODALL, Justice MURDOCK, Justice

text:
    The NORTH RIVER INSURANCE COMPANY v. Allen M. OVERTON and Cindy Waldrop.
    1071498.
    Supreme Court of Alabama.
    June 11, 2010.
    Rehearing Denied Oct. 15, 2010.

      Donna S. Pate, Claude E. Hundley III, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellant.
    Ted Taylor, Leah 0. Taylor, and Rhonda P. Chambers of Taylor & Taylor, Birmingham, for appellees.
   PER CURIAM.

The North River Insurance Company (“North River”), the garnishee in this garnishment action, appeals from a summary judgment in favor of Allen M. Overton and Cindy Waldrop, the garnishors. Overton and Waldrop seek to apply the proceeds of an insurance policy issued by North River to default judgments obtained in a previous action against North River’s insured, Prince Family Housing, Inc. (“Prince”), and Prince’s employee, Michelle Brown. We reverse and remand.

Facts and Procedural History

This is the second time this litigation has come before this Court. In Ex parte Overton, 985 So.2d 423 (Ala.2007), this Court explained the factual background of the case:

“North River issued a commercial general-liability insurance policy to Prince effective for the year ending January 5, 2000. The insurance policy provided that North River would pay those sums the insured became legally obligated to pay as damages because of bodily injury or property damage covered by the insurance policy.
“Blythe Insurance Agency obtained the policy for Prince through an insurance broker, Acordia of Michigan; Denis Porter was the Blythe employee who sold the policy to Prince. Acordia represents insurance companies that offered a specialty line of insurance for mobile-home retail-sales dealers. Acor-dia would send Blythe a statement each month, and Blythe would collect the premiums from the insured (in this case, Prince) and send Acordia a check for the amount received less its commission. Blythe’s name and address appeared on the face of the policy issued to Prince in the space designated ‘Agent Name and Address.’ Blythe is referred to as the ‘agent’ on five other pages in the policy. Blythe’s address is the only address contained in the policy.”

985 So.2d at 424-25.

In 1999, Overton purchased a mobile home for Waldrop from Prince. The sales contract was assigned to First Merit Bank, N.A. (“Merit Bank”), apparently pursuant to a “universal lender-dealer agreement” in which Merit Bank agreed to finance the sale of certain manufactured homes sold by Prince. Ex parte Overton continues:

“In May 2000, [Merit Bank] sued Prince and its employees, Michelle Brown and Patrick Boatwright, alleging that the defendants misrepresented certain information to the bank to obtain financing for a mobile home purchased by Overton for Waldrop. Merit Bank claimed breach of the universal lender-dealer agreement it had entered into with Prince and sought damages in the amount of the unpaid loan plus interest, costs, and attorney fees.' Prince gave Blythe notice of the action; Blythe, in turn, gave notice to Crum & Forster Insurance Company on June 14, 2000, by facsimile. North River is a subsidiary of Crum & Forster. According to the testimony of Phillip Blythe, the owner of Blythe, Acordia had instructed Blythe to send all notices of claims involving insureds directly to the insurance company involved. Phillip Blythe testified that in accordance with those instructions, Blythe,, acting on behalf of its insured, would forward claims directly to the insurance company. Blythe used its own forms for such notices.
“On June 15, 2000, Crum & Forster acknowledged receipt of the notice of Merit Bank’s action against Prince, denied Prince’s request for coverage, and refused to provide it with a defense. Blythe was sent a copy of the denial letter. Overton and Waldrop concede that the policy did not provide coverage for the claims Merit Bank asserted against Prince.
“On December 11, 2000, Prince and its employees filed a third-party complaint against Overton and Waldrop, claiming that Overton and Waldrop made false representations to them, which they, in turn, submitted to Merit Bank. On July 6, 2001, Overton and Waldrop filed a counterclaim against Prince and its employees, including claims of breach of contract and fraud.”

985 So.2d at 425. Overton and Waldrop alleged that Prince had breached the contract for purchase of the mobile home by failing to deliver and install the mobile home properly and because the mobile home had certain, defects. Additionally, Overton and Waldrop sought damages for fraud, suppression, negligent and wanton supervision and training, negligence, wantonness, and the tort of outrage in connection with the facts underlying the breach-of-contract claim and with allegations dealing with actions taken by Prince and its employees to obtain financing for the purchase. The procedural posture of that case is described as follows in Ex .parte Overton:

“Overton and Waldrop state that Prince and its employees failed to appear and defend the counterclaim, and on August 27, 2001, they filed a motion for a default judgment against Prince and its employees. On August 28, 2001, counsel for Overton and Waldrop received documents as a result of a third-party subpoena that indicated that North River had issued the insurance policy to Prince and that Blythe was the agent. That same,day, counsel faxed a copy of.the motion for a default judgment and mailed a copy of the motion and counterclaim to Blythe. On October 1, 2001, counsel sent another letter to Blythe, enclosing copies of the applications for entry of default and supporting affidavits.
“On December 3, 2001, Prince and Brown each filed Chapter 7 bankruptcy petitions. Overton and Waldrop filed motions with the bankruptcy court seeking relief from the automatic stay in both cases. In separate agreements filed in the two bankruptcy cases, Over-ton and Waldrop entered into agreements with Prince and Brown providing that the motions for relief from the automatic stay could be granted for the sole purpose of allowing Overton and Wal-drop to pursue their claims against Prince and Brown in the state court. The agreements further provided that Overton and Waldrop could ‘seek to enforce any judgment obtained against the debtor solely against any available proceeds of insurance, but the automatic stay shall continue in effect as to any attempts to collect any monies from the debtor or assets of the debtor or to otherwise enforce any judgment against the debtor.’ On February 26, 2002, the bankruptcy court approved the agreements.
“On April 25, 2002, default judgments were entered in favor of Overton and Waldrop and against Prince and Brown, •in the total amount of $8 million. Over-ton was awarded $250,000 in compensatory damages and $250,000 in punitive damages against Brown and the same amount against Prince. Waldrop was awarded $500,000 in compensatory damages and $500,000 in punitive damages against Brown and the same amount against Prince....
“On June 6, 2002, Overton and Wal-drop filed a garnishment proceeding against North River, which responded: ‘No coverage. No contractual liability to [Prince and Brown].’ They filed a motion contesting North River’s answer to the garnishment process, and the trial court established the issue before it as: ‘Whether or not North River Insurance Co. owes coverage to Prince Family Housing under the allegations in this case as proven.’ ”

985 So.2d at 425-26.

Following this Court’s decision in Ex parte Overton, the parties filed cross-motions for a summary judgment. On April 16, 2008, the trial court denied North River’s motion and entered a summary judgment in favor of Overton and Waldrop, awarding over $5 million in damages and interest. The trial court’s summary-judgment order included the following, titled “legal conclusions”:

“Insurance policy proceeds are properly subject to garnishment proceedings in Alabama. Commercial general liability insurance protects businesses from third party claims for personal injury or property damage resulting from accidents. An ‘occurrence policy’ confers coverage for injury or damage that occurs during the policy period, regardless of when the claim is presented. A third party who suffers an injury covered by a commercial general liability policy may not have a direct claim under the insurance policy. Rather, the injured party must first obtain a settlement or a judgment against the alleged tortfeasor. When the injured party has obtained a settlement or judgment, the injured party may elect to pursue a garnishment ■proceeding against the defendant’s insurer.
“Generally speaking, the burden rests on the plaintiff-garnishor in a garnishment proceeding to prove every fact essential to show the liability of the garnishee. Ala.Code 1975, § 6-6-458. Thus, the burden rests on the plaintiff to show a garnishable debt, the amount of the garnishee’s indebtedness to defendant and funds or property of the debtor in the garnishee’s hands. The party seeking to establish coverage under an insurance policy has the burden of proving that the claim is within the coverage afforded by the policy. The burden rests on the garnishee to rebut a prima facie case made by the plaintiff and to prove any affirmative defenses. 38 C.J.S. Garnishment § 265 (2007); Williamson v. Home Insurance Co., 778 S.W.2d 281 (Mo.App.1989).
“There was potential for coverage under the totality of the circumstances presented by the language of the counterclaims in this case. Each count in Waldrop’s and Overton’s counterclaim included a claim for mental anguish. The policy provided that North River would pay those sums that the insured became legally obligated to pay as damages because of bodily injury to which the insurance applied. Overton and Waldrop have judgments against the Defendants Prince Family Housing and Michelle Brown in an action for damages. The action for damages arose out of an occurrence under circumstances rendering North River liable for any judgment obtained against the insureds, Prince Family Housing and Michelle Brown.
“Notice provisions in an insurance policy are often condition precedents to recovery. Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171 (Ala.1982). The purpose of the notice provision in an insurance policy is to afford the insurer an opportunity to control litigation on which its contractual liability hinges. The insurance policy issued by North River to Prince Family Housing required that in the case of a suit brought against any insured, the insured must see to it that North River receive written notice of the suit. The policy provided:
“ ‘2. Duties In The Event of Occurrence, Offense, Claim or Suit
“ ‘b. If a claim is made or “suit” is brought against any insured, you must:
‘“(1) Immediately record' the specifics of the claim or “suit” and the date received; and
“ ‘(2) Notify us as soon as practicable.
“ You must see to it that we receive notice of the claim or “suit” as soon as practicable.’
“The Agent Name and Address’ on the face of the policy issued to Prince Family Housing states:
“BLYTHE INSURANCE
P.O. BOX 755
TRUSSVILLE, AL 35173-0755
“Blythe Insurance Agency is referred to as the ‘agent’ on five additional pages in this insurance policy. The Trussville address is the only address contained within the policy. There is no indication to the insured that the agent for purposes of giving notice of a claim is anyone other than Blythe Insurance Agency-
“The Alabama Supreme Court’s opinion on the mandamus made certain findings with respect to notice to North River of the original complaint and the counterclaim filed by Waldrop and Over-ton:
“• Prince Family Housing gave Blythe Insurance Company notice of the original action.
“• Blythe, in turn, gave notice to Crum & Forster Insurance Company on June 14, 2000, by facsimile.
“•North River is a subsidiary of Crum & Forster.
“• On August 28, 2001, counsel for Overton and Waldrop faxed a copy of the motion for a default judgment and mailed a copy of the motion and counterclaim to Blythe.
“•On October 1, 2001, counsel sent another letter to Blythe, enclosing copies of the applications for entry of default and supporting affidavits.
“North River argued that the default judgments entered against its insureds were due to be set aside because of North River’s claim that it did not receive notice of the counterclaim filed by Waldrop and Overton. However, the undisputed evidence was that North River had notice of Waldrop’s and Over-ton’s claims in August 2001.
“All that was required under the policy for purposes of notice was for the insured to ‘see to it’ that North River received written notice of the counterclaim as soon as practicable. The policy did not require that the insured give notice of the suit to North River so long as North River received notice. An injured party as a third-party claimant can give notice of a lawsuit to the tort-feasor’s insurer. Safeway Insurance Co. of Ala. v. Thompson, 688 So.2d 271 (Ala.Civ.App.1996) (plaintiffs attorney sent copy of complaint to insurer; notice provision that insured must give reasonable notice of any lawsuits filed against him was satisfied); Webb v. Zurich Ins. Co., 200 F.3d 759, 761 (11th Cir.2000). Overton and Waldrop gave notice of their counterclaim to North River.
“... In this case, all that was required under the policy for purposes of notice was for the insured to ‘see to it’ that North River received written notice of the counterclaim as soon as practicable. The policy did not require that the insured give notice to North River of the suit so long as North River received notice. Based on the language of North River’s policy, an injured party as a third-party claimant could give notice of a lawsuit to the tortfeasor’s insurer.
“North River contends that notice to Blythe Insurance Agency was not notice to North River because Blythe Insurance Agency failed to pass that notice onto North River. Overton and Wal-drop assert that, regardless of whether the agent communicated such knowledge to the insurer, the agent’s knowledge by law became the insurer’s knowledge. Under Alabama law, notice given to the insurance agent is imputed to the agent’s insurer, and the agent’s knowledge obtained while acting within the scope of its authority is presumed to have been communicated to the insurer. Ala.Code 1975, § 8-2-8; National Security Fire & Cas. Co. v. Coshatt, 690 So.2d 391 (Ala.Civ.App.1996); Alabama Plating Co. v. U.S. Fidelity & Guaranty Co., 690 So.2d 331 (Ala.1996); Union Fire Ins. Co. of Paris France v. Ryals, 25 Ala.App. 300, 145 So. 503 (1932). In the present case, however, there is no question of fact, because the undisputed evidence shows that Blythe Insurance Agency was North River’s agent. Consequently, the notice given to Blythe Insurance Agency in August of 2001 was notice to North River. The fact that Blythe Insurance Agency may have failed to pass the notice on to North River is an issue between Blythe and North River and not before this Court.”

(Emphasis added.)

North River filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied. North River now appeals.

Standard of Review

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a deter mination, we must- review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant, to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Discussion

On appeal, North River argues that the trial court erred in entering a summary judgment for Overton and Wal-drop because, it says, Overton and Wal-drop failed to demonstrate that North River owed coverage under the policy. Specifically, North'River maintains that, among other things, the insured, Prince, breached its contractual duty to provide notice of the pendency of the counterclaim and the resulting default proceedings. According to North River, this failure both prevented North River from defending against the counterclaim and the default judgments and prevents the insured, and, thus, Overton and Waldrop as gar-nishors, from establishing coverage under the policy.

Overton and Waldrop in response argue that Blythe was North River’s agent and that, because their counsel sent a copy of their motion for a default judgment to Blythe, along with a copy of their counterclaim, North River should be deemed to have received notice of the claim against Prince for purposes of invoking coverage under the policy: “counsel for Waldrop and Overton sent copies of the counterclaim and other proceedings to Blythe” and that “was sufficient to provide notice to North River of the counterclaim under the provisions of the policy.” Overton and Waldrop maintain that “[njotice to the company’s agent is notice to the company,” National Sec. Fire & Cas. Co. v. Coshatt, 690 So.2d 391, 393 (Ala.Civ.App.1996), and thus essentially contend that, if Blythe is considered North River’s agent, then North River was deemed to have notice of the counterclaim action when Blythe received the materials forwarded by Overton and Waldrop’s counsel.. See also § 8-2-8, Ala.Code 1975 (“As against a principal, both principal and agent are deemed to have notice of whatever either has notice of and ought in good faith and the exercise of ordinary care and diligence to communicate to the other.”). North River, on the other hand, argues that Blythe was not its agent and, thus, that North River received no notice under the terms of the policy either from Prince or through Blythe.

Overton arid Waldrop, as the movants, bore the burden of establishing an agency relationship between Blythe and North River. See also Lincoln Log Home Enters., Inc. v. Autrey, 836 So.2d 804, 806 (Ala.2002) (holding that a party asserting the existence of an agency relationship has the burden of producing sufficient evidence to prove its existence). As noted above, the trial court held that the “undisputed evidence” showed that Blythe was North River’s agent. However, the record contradicts the trial court’s holding.

In support of the argument that Blythe was North River’s agent, Overton and Waldrop cite the testimony of Dianne Dotson, the Crum & Forster claims consultant who initially denied Prince’s request for coverage in the Merit Bank litigation. Dotson was questioned during her deposition about whether Blythe was an agent of North River. At one point she specifically testified that she believed that Blythe had a contract with North River in the past and that notice to Blythe was sufficient to provide notice to North River. She later qualified her testimony, however, and stated that she did not know the terms of any such.agreement or the specifics or scope of any such relationship. Dotson later testified in her deposition:

“[Overton/Waldrop’s counsel]: You’re saying that ... Blythe is not licensed to be an agent for North River in Alabama?
“[Dotson]: I am saying that I don’t know — I have not seen their agency contract. ...
“[Overton/Waldrop’s counsel]: But if Blythe Insurance Agency received it for North River, would they not have received it as North River’s agent?
“[Dotson]: I don’t have their contract with us. And I have not had a chance to review their contract with us.
“[Overton/Waldrop’s counsel]: Do you remember I asked you earlier .that if Blythe had received notice, would that be sufficient notice to North River and you said yes. Do you remember that?
“[Dotson]: I believe you asked me two questions. And I need to clarify that because it was two in a row [and] confusing. I haven’t reviewed their contract.”

Dotson stated that she did not have actual knowledge as to whether Blythe was an agent of North River or Crum & Forster at the time the policy was issued to Prince. Although at one point Dotson appears to testify that Blythe was North River’s agent, she later clarified that she did not know if that was correct. This testimony does not amount to substantial evidence that Blythe was North River’s agent. See Welch v. Houston County Hosp. Bd., 502 So.2d 340, 342 (Ala.1987) (noting that the content of depositions or answers to interrogatories submitted in support of, or in opposition to, a summary-judgment motion must be based on the personal knowledge of the deponent); cf. McGough v. G & A, Inc., 999 So.2d 898, 906 (Ala.Civ.App.2007) (“A nonmovant cannot rely on deposition testimony that is internally inconsistent and contradictory to create a genuine issue of material fact.”).

Other evidence in the record actually demonstrates that Blythe was not North River’s agent. Phillip Blythe, the owner of Blythe, testified in his deposition, when questioned as to whether selling a policy made him an agent of the insurance company issuing the policy, that whether Blythe was an agent “depended] on the company contract.” He further described Blythe as “an independent agency,” which, he said, “represents a number of different insurance companies.” According to Phillip Blythe, he had an “Agency Agreement” with Acordia of Michigan, not with North River. He described his relationship with Acordia as follows:

“[Phillip Blythe]: Acordia of Michigan is, in fact, an insurance agent, also. In the industry, they are known as a broker. They represented an insurance company, and then they came to different agencies throughout the United States with a national program and allowed us to sell one particular line of business through them through the insurance company. We weren’t an employee of Acordia. We had no authority. We just — they were a go-between for an insurance company.
“[Overton/Waldrop’s counsel]: So Acordia is in and of itself somewhat like you, just an agency itself?,.
“[Phillip Blythe]: Yes.
“[Overton/Waldrop’s counsel]: You are indicating to me what they would do is they might have agreements with companies themselves, and they just allowed you to sell a certain line of insurance? ■
“[Phillip Blythe]: That’s correct.
“[Overton/Waldrop’s • counsel]: If I misstate it, I want you to tell me. In particular, regarding North River Insurance Company, did you ever have an insurance agreement with them of any fashion?
“[Phillip Blythe]: No.
“[Overton/Waldrop’s counsel]: With Crum & Forster, did you have an insurance agreement with them?
“[Phillip Blythe]: No.
“[Overton/Waldrop’s counsel]: Did you ever make any contact regarding setting up insurance agreements with North River?
“[Phillip Blythe]: No.
“[Overton/Waldrop’s counsel]: Or Crum & Forster?
“[Phillip Blythe]: No.”

Phillip Blythe also testified that “[w]hen the actual policy was issued, the policy was sent from the insurance company to Acor-dia, and Acordia in turn sent the policies direct to [Blythe], and [Blythe] delivered that policy to the insured.” He testified that he never received any instructions for handling claims directly from either North River or Crum & Forster. He further indicated that not only did he lack any type of contractual relationship with either North River or Crum & Forster, but he also “had no binding authority” and could merely submit the insurance application, which, he said, the insurance company had the right to accept or reject, and wait for a quote. Assuming that the policy did issue, he indicated that all premiums were remitted directly to Acordia and that the commission received by Blythe was determined by the terms of the Acordia agency agreement. He specifically denied that, at the time of the sale of the policy to Prince, Blythe was acting “as an agent on behalf of North River in the sale of that policy.” He also denied that Blythe was acting as North River’s agent in reporting claims and that North River provided neither instructions nor forms to Blythe related to claims notification. He testified that Blythe was also not an actual registered agent entitled to accept service for any insurance company. Instead, he identified Blythe as the agent of the insured, Prince: “[Overton/Waldrop’s counsel:] So you claim to be Prince ... Family Housing’s agent; is that right?.... [Phillip Blythe:] Yes.”

Phillip Blythe’s testimony suggests that Blythe was acting in the then statutorily defined role of an insurance broker. In Ballard v. Lee, 671 So.2d 1368, 1371-72 (Ala.1995), overruled on other grounds, State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834 (Ala.1998), this Court addressed the relationship between insurers and insureds and insurance agents and brokers, who serve as middlemen between the two. In that case, the insured, Scottie Ballard, alleged that Travis Ray Carter, an employee of the local insurance broker that obtained Ballard’s commercial insurance, was either the agent of the insurer, which was “[a] ‘certain’ syndicate (the ‘Syndicate’)” of an international brokerage firm, or was a dual agent so that any alleged fraud or misrepresentation by Carter could be attributed to the Syndicate. 671 So.2d at 1369. In rejecting Ballard’s agency claim, this Court applied the following analysis:

“The functions and characteristics of insurance ‘agents’ and ‘brokers,’ respectively, are set forth in Ala.Code 1975, § 27-7-l(a). That section defines those two terms:t[]
“‘(1) Agent. A natural person, partnership or corporation appointed by an insurer to solicit and negotiate insurance contracts on its behalf, and if authorized to do so by the insurer, to effectuate, issue and countersign such contracts. An agent may not delegate the counter-signature authority by appointing another person as his attorney-in-fact, except, that this provision shall not apply to agents for direct-writing insurers. .
‘“(2) Broker. A natural person, partnership or corporation who, on behalf of the insured, for compensation as an independent contractor, for commission or fee and not being an agent of the insurer, solicits, negotiates or procures insurance or the renewal or continuance thereof, or in any manner aids therein, for insureds or prospective insureds other than himself or itself. Brokers cannot bind the insurer and all business produced must be countersigned by a resident agent of the insurer accepting the risk.’
“(Emphasis added.) See, also, J. Appleman, Insurance Law and Practice § 8726, at 338 (1981) (‘A broker is ... one who acts as a middleman between the insured and insurer and ... solicits insurance from the public under no employment from any special company’).
“In this case, it is undisputed that Carter and the Syndicate shared no express contractual relationship. Indeed, Ballard concedes that liability cannot be based on the principle of respondeat superior. Brief of Appellant, at 56. After assuming the responsibility, at Ballard’s request, to locate an insurer, Carter served at all relevant times as a ‘middleman’for the transactions between the Syndicate and Ballard. Moreover, no reasonable construction of the communications transpiring among the parties supports the proposition that Carter had either actual or apparent authority to bind the Syndicate. Thus, we are compelled to conclude that Carter’s role throughout these transactions was that of a broker.
“Ordinarily, ‘an insurance broker represents the insured and is not considered an agent of the insurer.’ Lampkin v. Kelly, 771 S.W.2d 953, 954 (Mo.App.1989). A broker usually acts solely as the insured’s agent and ‘has a license to “hunt” for a suitable policy without having any prior representation contract with any particular insurer.’ M. Pock, Insurance, 45 Mercer L.Rev. 253, 255 n. 15 (1993); see, also, J. Appleman, Insurance Law and Practice § 8727 (1981). Only ‘special conditions or circumstances in a particular case [will] warrant the inference that a broker is the agent of the insurer.’ Lampkin, 771 S.W.2d at 954. These rules are essentially codified in Ala.Code 1975, § 27-7-l(a)(2), which expresses the intent of our legislature with regard to concurrent agency, namely, that in the usual case, a broker will not be regarded as ‘an agent of the insurer.’ Id.
“We are aware that a broker sometimes performs certain functions that benefit the insurer, such as delivering the insurer’s policy to the insured, collecting premiums from the insured, and forwarding the proceeds of the premium to the insurer and, thus, that the broker may, for some purposes, represent the insurer. Hunt v. State, 737 S.W.2d 4 (Tex.App.1987); see, also, American Fire Ins. Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168 (1917), affirmed, 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810 (1919). In § 27-7-1(a)(2), however, these activities are expressly, or by clear implication, ascribed to brokers. Thus, the broad application of this rule in Alabama would render anyone who ‘solicits, negotiates or procures insurance or the renewal or continuance thereof, or in any manner aids therein, for insureds or prospective, insureds,’ § 27-7-l(a)(2) (emphasis added) — by which activities he qualifies as a broker — ipso facto an agent of the insurer. Such a result would contravene § 27-7-1(a)(2) and would be contrary to the policy of this state as declared by the legislature.”

Ballard, 671 So.2d at 1371-72 (some emphasis added).

Nothing in the record tends to show that North River granted Blythe the authority to “ ‘solicit and negotiate insurance contracts on its behalf, and if authorized to do so by [North River], to effectuate, issue and countersign such contracts.’” Ballard, 671 So.2d at 1372 (quoting § 27-1-1(a)(1)). A review of the evidence in light of the legal principles in Ballard—that Blythe had no agency agreement with North River and instead worked as Prince’s agent—compels the conclusion that, at most, Blythe acted as a broker on Prince’s behalf under § 27-7-l(a)(2).

Overton and Waldrop also contend that the policy issued by North River repeatedly refers to Blythe as “agent.” However, the policy does not explicitly state who Blythe represented or that Blythe represented North River. When the evidence is viewed in a light most favorable to North River, as the nonmovant, and given that there is no evidence indicating that Blythe had authority to act as North River’s agent — but ample evidence indicating that Blythe acted on behalf of Prince — the term “agent” in the policy could equally be referencing Blythe as the agent of Prince, not North River. Therefore, we hold that Overton and Waldrop produced no substantial evidence that Blythe was an agent of North River. Thus, the trial court erred in holding that Blythe was North River’s agent.

Further, we conclude that the trial court erred in holding that the “undisputed evidence” demonstrated “that North River had notice of Waldrop’s and Overton’s claims in August 2001.” Overton and Waldrop acknowledged in their motion for a summary judgment that neither Brown nor Prince actually notified North River of the counterclaim filed by Overton and Waldrop: “It is true that neither Prince Family Housing nor Michelle Brown forwarded the counterclaim to North River.” Further, Dotson testified in an affidavit that her letter to Prince denying coverage in the Merit Bank litigation specifically stated that she would reconsider the denial of coverage if she was later presented with additional facts or an amended complaint that might trigger coverage. However, Dotson stated, she had no further contact from anyone regarding the Merit Bank litigation, and North River had no notice of Overton’s and Waldrop’s claims:

“North River had no knowledge or notice of the third-party claims by Allen Overton and Cindy Waldrop. North River did not receive any notice regarding [Prince’s] third-party complaint against Overton and Waldrop. Further, North River did not receive any notice of Overton’s and Waldrop’s counterclaims against [Prince and Brown]. North River did not receive any notice of Overton’s and Waldrop’s applications for default judgments, any of the proceedings relating to the default judgments], or any of the trial court’s orders relating to the default judgments.”

Under § 27-23-2, Ala.Code 1975, Over-ton and Waldrop are subject to North River’s defenses against its insured, including the defense of lack of notice. See Nationwide Mut. Fire Ins. Co. v. Estate of Files, 10 So.3d 533, 534-35 (Ala.2008). We hold that Overton and Waldrop failed to produce substantial evidence establishing that North River received notice, pursuant to the policy, of Overton and Waldrop’s counterclaim. Thus, Overton and Waldrop did not establish that North River was obligated under the policy to provide coverage for the amounts awarded Overton and Waldrop in the default judgments, and the trial court erred in entering a summary judgment in favor of Overton and Waldrop.

Conclusion

We reverse the summary judgment in favor of Overton and Waldrop and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

SHAW, J., concurs specially.'

COBB, C.J., and LYONS, WOODALL, and MURDOCK, JJ., concur in the result.

SHAW, Justice

(concurring specially).

I concur in the main opinion. I write specially to discuss the issue whether Blythe Insurance Agency had apparent authority to receive notice for The North River Insurance Company. This issue was not raised in the trial court and is not raised by Allen M. Overton and Cindy Waldrop as an argument on which to affirm the trial court’s judgment on appeal. That said, this Court “can affirm the trial court ‘on any ground developed in, and supported by, the record.’” Lyons v. River Road Constr., Inc., 858 So.2d 257, 265 (Ala.2003) (quoting Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002)).

Apparent authority is referenced in Ballard v. Lee, 671 So.2d 1368 (Ala.1995), a decision upon which the main opinion relies. Apparent authority “ ‘rests upon the principle of estoppel, which forbids one by his acts to give another an appearance of authority which he does not have and to benefit from such misleading conduct to the detriment of one who has acted in reliance upon such appearance.’” McLemore v. Hyundai Motor Mfg. Alabama, LLC, 7 So.3d 318, 329 (Ala.2008) (quoting Patterson v. Page Aircraft Maint., Inc., 51 Ala.App. 122, 125-26, 283 So.2d 433, 436 (1973)). See also Union Oil Co. v. Crane, 288 Ala. 173, 178, 258 So.2d 882, 885-86 (1972) (“‘“When one has reasonably and in good faith been led to believe ... that a certain agency exists, and in good faith acts on such belief to his prejudice, the principal is estopped from denying such agency.” Halle v. Brooks, 209 Ala. 486, 487, 96 So. 341, 342 [(1923)].’” (quoting Pearson v. Agricultural Ins. Co., 247 Ala. 485, 488, 25 So.2d 164, 167 (1946))). To demonstrate apparent authority, “the insured or other person asserting it ... must have been misled into altering his or her position to his or her prejudice.” 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 48:13 (3d ed. 2005) (footnotes omitted; emphasis added). The argument, if it had been raised by Overton and Waldrop, would be thus: The designation in the policy of Blythe as an “agent” was misleading conduct by North River causing Overton and Waldrop to reasonably and in good faith believe that there was an agency relationship — at least for purposes of giving notice of a claim — and that North River benefited from such misleading conduct to the detriment of Over-ton and Waldrop, who reasonably and in good faith altered their position and acted in reliance upon such appearance to their prejudice.

The standard of review of a summary judgment requires this Court “to view the evidence in a light most favorable to the nonmoving party” — here North River— and “to draw all reasonable inferences” in its favor. Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Given this standard, it is unclear from the current state of the record whether North River actually listed Blythe as “agent” on the policy issued to Prince Family Housing, Inc. There are several identical copies of the policy in the record. They are not “countersigned” by an “Authorized Representative” on the “Common Policy Declarations” page, which another portion of the policy requires for the policy to be “valid.” Further, Phillip Blythe testified that the copy viewed at his deposition was the “application” or “agent’s copy” and “not actually a copy of the actual insured’s policy.” Additionally, the policy is made up of several different documents, some of which are standardized forms and some of which have portions that appear to have been completed with information — such as Prince’s and Blythe’s names and addresses — at a different time or with different printing equipment. It is unclear whether North River, Acordia, or Blythe generated portions of the documentation. Although it is reasonable to infer that North River drafted these documents, or even specifically completed the information indicating Blythe as an “agent,” the standard of review requires inferences to be drawn in North River’s favor, not against it.

Additionally, it is unclear how North River benefited from the allegedly misleading statement, which was made to Prince, a party to the policy that knew the proper notice procedure. It is also unclear upon what basis we can hold as a matter of law that Overton and Waldrop relied on North River’s purported conduct, because they were under no legal duty to forward a copy of the motion seeking a default judgment and the counterclaim to North River, a nonparty to the action. Instead, the duty to give notice was on Prince, and Overton and Waldrop had not yet stepped into Prince’s shoes as garnish-ors. See Kennedy v. Western Sizzlin Corp., 857 So.2d 71, 78 n. 3 (Ala.2003) (affirming a summary judgment against parties alleging apparent authority, noting that the parties “do not allege, or offer any evidence indicating, that they relied to their prejudice on their alleged understanding that [the purported principal and agent] were ‘one in the same,’” and further noting that there was no evidence indicating that the purported principal permitted the appearance of authority justifying such reliance). Finally, it is unclear how Overton and Waldrop altered their position in reliance on the representation in the policy. It thus appears that, at most, there are possible issues of fact as to whether notice to Blythe constituted notice to North River under the doctrine of apparent authority; such issues of fact áre more properly addressed on remand and preclude an affirmance of the summary judgment.

Further, although this Court can generally affirm a trial court’s judgment for any reason developed in the trial court and supported by the record, we will not apply this rule “where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance.” Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). Here, North River did not have notice of this issue in the trial court; thus, it has not had the opportunity to argue that Overton and Waldrop have not produced prima facie evidence of reliance or that Overton and Waldrop could not rely on representations made in a contractual arrangement to which they were strangers. Also, North River has not had the chance to ’submit evidence demonstrating that it did not place Blythe’s name on the policy or to demonstrate that it did not benefit from purportedly indicating to . Prince that Blythe was the “agent.” ,

Therefore, I believe that this issue is better left to be properly developed and resolved in the trial court on remand.

WOODALL, Justice

(concurring in the result).

I concur in the result. I agree with Justice Shaw that the issue of apparent authority should be addressed on remand. In' addition to the authorities cited by Justice Shaw, the trial court should also consider whether, because North River “enjoyed the ease of [issuing a policy] without [revealing its address], under circumstances in which no reasonable [insurer] could consider [notice to it] possible without the intervention of an agent to act on [North River’s] ' behalf, [North River] thereby passively permitted [Blythe] to appear ... to have the authority to act on [its] behalf, and [Blythe’s] apparent authority is, therefore, implied.” Tennessee Health Mqmt., Inc. v. Johnson, 49 So.3d 175, 180 (Ala.2010).

MURDOCK, Justice

(concurring in the result).

I cannot agree with the statement in the main opinion that the record contained “no substantial evidence that Blythe was an agent of North River.” 59 So.3d at 12 (emphasis added). As to the issue of actual agency, it is enough to reach the conclusion that the summary judgment in favor of Overton and Waldrop was inappropriate that we are able to state that the record before the trial court did contain substantial evidence that Blythe was not an actual agent of North River.

      . North River filed a Rule 60(b), Ala. R. Civ. P., motion to set- aside the default judgments; the trial court granted the motion, concluding that " 'North River did not receive notice before, or promptly after, the default judgments were entered.' " Ex parte Overton, 985 So.2d at 426. Overton and Waldrop petitioned this Court for a writ of mandamus, which we granted, directing the trial court to vacate its ruling. Ex parte Overton, supra. Following our issuance of the writ of mandamus, the trial court reinstated the garnishment action.

      . North River notes in its brief to this Court that there remains pending in the Marshall Circuit Court a declaratory-judgment action filed by North River “in accordance with this Court’s statement in Ex parte Overton, supra, that 'North River can bring a separate action seeking a declaration that there is no insurance coverage for Overton and Waldrop’s counterclaims against Prince and Brown.' 985 So.2d at 433.” North River's brief, at p. 3. According to North River, all activity in the declaratory-judgment action has been stayed pending our resolution of the present appeal.

      . Overton and Waldrop are proceeding against North River under § 27-23-2, Ala. Code 1975, .which generally provides that under certain circumstances "insurance money provided for” under, an insurance contract between an insurer and a judgment ■ debtor may be applied to satisfy a judgment. The judgment creditor’s ability to reach and apply insurance proceeds is limited:
      " ‘The injured party ... can bring an action against the insUrer only after he has recovered a judgment against the insured and only if the insured was covered against the loss or damage at the time the injured party's right of action arose against the insured tort-feasor.'

        “Maness v. Alabama Farm Bureau Mut. Casualty Ins. Co., 416 So.2d 979, 981-82 (Ala.1982). The injured party’s ‘vested interest’ is subject to the further qualification that the terms of the policy imposing obligations on the insured are effective as against the injured party.’ George v. Employers’ Liab. Assurance Corp., 219 Ala. 307, 310, 122 So. 175, 177 (1929); see James & Hackworth v. Continental Casualty Co., 522 F.Supp. 785, 787 (N.D.Ala.1980). Thus, defenses to liability available to the insurer in an action brought by the insured would also be available to the insurer in an action brought pursuant to §§ 27-23-1 and -2 by the injured party.”

        Haston v. Transamerica Ins. Servs., 662 So.2d 1138, 1139-40 (Ala.1995).

      . The record reflects that this documentation was received by Blythe but was misfiled and was never forwarded to either Crum & Forster or North River.

      . As noted in Carolina Casualty Insurance Co. v. Miss Deanna’s Child Care-Med Net, L.L.C., 869 So.2d 1169, 1175 n. 4 (Ala.Civ.App.2003): "Although § 27-7-1, Ala.Code 1975, was amended effective January 1, 2002, so as to delete the statutory definitions of 'agent' and 'broker' discussed in Ballard, the incidents on which this action is based occurred before the effective date of that amendment.” Citations to § 27-7-1 in this opinion refer to the Code section as it existed before the 2002 amendment.

      . The issue whether the designation "agent” in the policy raises an issue of apparent authority, as discussed in Justice Shaw's special writing, is not argued to this Court and is better left to be decided by the trial court on remand.

      . Because we hold that North River did not receive notice of Overton and Waldrop’s counterclaim, we pretermit discussion of the remaining issues raised by North River on appeal.

      . There is an oblique reference to apparent authority in a parenthetical citation to a Georgia decision in a footnote in Overton and Waldrop’s brief to this Court; however, there is no argument on this point and no citation to the voluminous Alabama caselaw on this doctrine.

      . It appears that the existence of the insurance policy was discovered during the course of the Merit Bank litigation.

      . Further, as noted in the main opinion, "agent” could refer to the apparent fact that Blythe acted as Prince's agent in the role of a broker. 59 So.3d at 12.

      .Phillip Blythe testified that Blythe's clients are instructed to give notice of claims to Blythe, which would in turn be forwarded to the insurer, and that Prince would have been informed of this procedure.

      . Further, I note the possibility that Overton and Waldrop place little emphasis on this argument for strategic reasons. Specifically, the policy limits the amount of coverage to $1 million. Overton and Waldrop, however, contend that North River is required to pay the full $5 million in damages awarded by the trial court because it intentionally refused to defend Prince and, under Alabama law, Over-ton and Waldrop argue, North River is thus prevented from raising the policy limits as a defense to paying the full amount of the judgment. To concede that Blythe had no actual authority or agency in this case, and instead argue that it had apparent authority, Overton and Waldrop may be required to abandon the theory that North River intentionally refused to provide a defense. Thus, to maximize recovery from North River, it is to Overton and Waldrop's advantage to intentionally disregard an argument on apparent authority.