author: THOMAS, Judge. MOORE, Judge,

text:
    Melissa MELTON v. Thomas JENKINS.
    2101111.
    Court of Civil Appeals of Alabama.
    March 16, 2012.

      Daniel G. Sayers, Mobile, for appellant.
    Wesley H. Blacksher, Mobile, for appel-lee.
   THOMAS, Judge.

Melissa Melton appeals from a judgment of the Mobile Probate Court determining that Thomas Jenkins and Mary Melton were married at common law.

Mary Melton died on October 29, 2007. Melissa Melton, Mary’s daughter, was appointed by the-probate court as the personal representative of Mary’s estate on February 1, 2010. Jenkins then filed a claim for exemptions and claimed to be Mary’s surviving spouse by virtue of a common-law marriage. Melissa answered Jenkins’s motion, denying that Mary and Jenkins had been married at common law. In response, Jenkins moved the probate court to determine Mary’s heirs at law. The probate court held a trial on March 17, 2011, and April 5, 2011, on the issue whether Mary, and Jenkins had been married at common law. On May 25, 2011, the probate court entered a judgment determining that Mary and Jenkins had been married at common law and that Jenkins was Mary’s surviving spouse. Melissa filed a postjudgment motion, which the probate court denied as to the merits but granted insofar as she requested that the probate court certify its judgment as final pursuant to’ Rule 54(b), Ala. R. Civ. P. Melissa subsequently appealed to this court. We transferred the appeal to the Alabama Supreme Court because we lacked subject-matter jurisdiction over the appeal; our supreme court transferred the appeal back to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The Alabama Supreme Court stated in Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala.1992):

“ ‘Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.’ Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986), citing Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982). A trial judge’s findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala.1989). The trial court’s judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it ‘will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ Adams v. Boan, 559 So.2d 1084, 1086 (Ala.1990) (citation omitted).”
Clear and convincing evidence is
“ ‘[ejvidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.’
“§ 6 — 11—20[ (b) ](4), Ala.Code 1975.”

L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002).

“In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer [v. Stringer ], 689 So.2d [194,] 195 [ (Ala.Civ.App.1997) ], quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).”

Gray v. Bush, 835 So.2d 192, 194 (Ala.Civ.App.2001).

Melissa first argues that Mary lacked the capacity to marry Jenkins on September 7, 1996, the date Jenkins asserts he and Mary entered into a common-law marriage, because, she says, on that date Mary had not been divorced from her previous husband for more than 60 days. Melissa introduced into evidence Mary’s divorce judgment from her previous husband, which was dated August 1, 1996, and contained a provision prohibiting either party to the marriage from marrying another person until 60 days had elapsed from the date of the entry of the divorce judgment. See § 30-2-10, Ala.Code 1975 (“When a judgment has been entered granting a divorce in this state, the court shall order that neither party shall again marry, except to each other, until 60 days after the judgment is entered, and that if an appeal is taken within 60 days, neither party shall again marry, except to each other, during the pendency of the appeal.”).

In support of her argument on appeal, Melissa cites Brand v. State, 242 Ala. 15, 6 So.2d 446 (1941), in which the Alabama Supreme Court held that a marriage contracted in violation of a statutory prohibition such as the one provided in § 30-2-10 is void. 242 Ala. at 18, 6 So.2d at 449. However, in Krug v. Krug, 292 Ala. 498, 501, 296 So.2d 715, 718 (1974), our supreme court held that “[i]t is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage.” Thus, although a legal impediment existed on the date that Jenkins claims that he and Mary entered into a common-law marriage, if Jenkins and Mary demonstrated a present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships and then continued to act in a way that garnered public recognition of the relationship as a marriage together with a public assumption of marital duties and cohabitation after the legal impediment was removed, Mary and Jenkins’s relationship could be considered a common-law marriage. The key question on appeal thus becomes whether clear and convincing evidence exists demonstrating that Mary and Jenkins acted in way to garner public recognition of their relationship as a marriage through public assump-. tion of marital duties and cohabitation.

Jenkins initially claimed that he had met Mary in late 1995 and then married her in early 1996 in an unofficial ceremony, which had been officiated by a minister in Coden. Jenkins testified that he and Mary began living in Mary’s house thereafter. Later, when confronted with conflicting testimony that he had given in his deposition, Jenkins testified that he meant to state that the minister was from Coden and that the ceremony had been conducted at Mary’s house on September 7, 1996. Jenkins could not remember the name of the minister, stating that he was an acquaintance of Mary’s. Jenkins stated in his deposition that the only persons present at the ceremony were the minister, Mary, and himself; however, Jenkins testified at trial that the minister’s wife and a husband and wife who were Mary and Jenkins’s friends were also present. Jenkins could not recall the names of the friends. Jenkins further stated that he and Mary began living in Mary’s house following the September 7, 1996, ceremony.

In contrast, Heather Patterson, Mary’s granddaughter, testified that she was living in Mary’s house from 1995 through the spring of 1997. She testified that Jenkins did not live in Mary’s house at any time while she was living there. However, it is clear that Jenkins did begin living with Mary at some point in time and continued to live with her in her house until she died on October 29, 2007. Mary’s appointment calendar for 1998, which was introduced into evidence, contains a notation that she had “met” Jenkins on September 7, 1996, as opposed to marrying him on that date; it also has a notation on September 7, 1998, that states “met 1996, our anniversary.” Jenkins also stated that he and Mary wore wedding rings. Jean Love, a longtime friend of Mary’s, testified that she saw Mary wearing a wedding ring only once, about one month before her death in 2007 and after Mary could no longer speak due to the progression of her Alzheimer’s disease; Love stated that Jenkins also told her at that time that he and Mary were married, which was the only time Love had heard that Mary and Jenkins were married.

Jenkins testified that he and Mary did not jointly own any real property, personal property, or credit cards. Jenkins also testified that he and Mary did not file any joint tax returns, saying that he had received a letter from the Internal Revenue Service in 1996 stating that he no longer needed to file tax returns; he said that he was unsure of how Mary listed her marital status on her tax returns. Jenkins stated that he and Mary had a joint checking account and a joint savings account; however, he did not provide any documentary evidence of their existence.

Jenkins testified that Mary did not take his last name, although he stated that she would use it “on occasion.” Despite his acknowledgment that Mary did not take his last name, Jenkins had Mary’s name listed on her death certificate as “Mary Majors Melton Jenkins.” Jenkins also caused her name to be listed in her 'obituary with the last name “Jenkins.”

Jenkins introduced into evidence four greeting cards to support his claim that he and Mary had considered themselves to be married to each other. The first was a Valentine’s Day card that was undated and that did not mention Jenkins by name; Jenkins testified that the Valentine’s Day card was from 2000. The envelope, which Jenkins stated went with the Valentine’s Day card, stated “To my Husband” on it; it also did not mention Jenkins by name. The second card was an undated birthday card that was signed by Mary. The envelope that Jenkins said accompanied the birthday card stated “To My Husband” on its front; neither the birthday card nor the envelope referenced Jenkins by name. The third card was signed by Mary and was accompanied by an envelope that stated “Love To My Tom” on its front. The fourth card was an anniversary card that was titled “With Love to My Husband on Our Anniversary” and was signed by Mary; the card did not mention Jenkins by name and was not dated. An envelope, which Jenkins stated went with the card, had “Sept. 7th Tom Happy Anniversary” on its front.

Jenkins introduced into evidence two sets of forms associated with insurance applications. The forms in the first set were titled “Seniors First” and were signed, respectively, by Jenkins and Mary in November 2004. The insurance-application forms for Jenkins and Mary each had a box checked that was labeled “married.” Jenkins testified at trial that he and Mary had filled out the application forms at Mary’s house in the presence of the insurance agent; however, in his deposition he had stated that the insurance agent had filled out the forms. The second set of insurance-application forms were for “Medicare Complete” and were signed by Jenkins and Mary in March 2004. The second set of forms, like the first set, had a box checked that was labeled “married.”

Jenkins also introduced into evidence two letters in support of his common-law-marriage claim. The first letter was from Dr. Rex A. Rawls, who, Jenkins stated, had been Mary’s and Jenkins’s physician. The letter was dated January 4, 2007, and stated that Mary had progressive Alzheimer’s dementia and was “unable to conduct any of her affairs.” The letter further stated that Jenkins, “her husband,” was her caregiver and handled her affairs. The second letter was dated November 1, 2007, and was signed by Jeffery Spiller, who was the pastor at Christ United Methodist Church, where Mary and Jenkins attended services. The letter from Spiller notified Jenkins that a donation had been made by the church in Mary’s name in memory of Jenkins’s “wife,” whose name Spiller listed as “Mary Melton Jenkins.”

Jenkins had the burden of presenting clear and convincing evidence demonstrating that his purported common-law marriage to Mary had gained public recognition. The only evidence indicating that individuals other than Jenkins and Mary considered them to be married was a single letter from Spiller that was sent to Jenkins following Mary’s death and a single letter from Dr. Rawls, which, by its own contents, was written after Mary no longer was mentally capable of conducting her own affairs. Jenkins presented no testimony from members of the community, produced no documentation to support his claim that he and Mary had had a joint bank account, and admitted that he and Mary had owned no property together. There was also no evidence indicating that Jenkins and Mary had ever filed a joint tax return.

Claims of the existence of a common-law marriage are subjected to strict scrutiny and must be supported by clear and convincing evidence. See Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986). The meager amount of evidence that Jenkins introduced to prove that he and Mary had gained public recognition of their purported common-law marriage was not sufficient to meet this heavy burden because “[t]he facts adduced by [Jenkins] ... do not meet the required standard of a persuasive pattern of unam-bivalent conduct, but rather are too few and isolated.” Bishop v. Bishop, 57 Ala.App. 619, 622, 330 So.2d 443, 446 (Civ.1976); see also Reese v. Holston, 67 So.3d 109, 113 (Ala.Civ.App.2011)(holding that two isolated documents were insufficient to show a pattern of conduct that the purported common-law marriage had gained public recognition). The lack of jointly owned property and integrated finances also militate against a determination of the existence of a common-law marriage. See Cluxton v. Cluxton, 431 So.2d 1296, 1298 (Ala.Civ.App.1983); Gray, 835 So.2d at 195.

Because we determine that Jenkins did not introduce sufficient evidence to support his claim that he and Mary had entered into a common-law marriage, we reverse the judgment of the probate court and remand the cause for that court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, J., concur.

MOORE, J., dissents, with writing, which BRYAN, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent.

When a fact must be proven at trial by clear and convincing evidence,

“the appellate court must ... look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court’s weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ § 25-5-81(c)[, Ala.Code 1975].”

Ex parte McInish, 47 So.3d 767, 778 (Ala.2008). In so doing, the appellate court cannot usurp the role of the fact-finder and reweigh the evidence. Id. at 778.

In this case, the Mobile Probate Court entered a seven-page judgment citing the elements of a common-law marriage and the clear-and-convincing-evidence standard and explaining in detail its determination that Thomas Jenkins had satisfactorily proven a common-law marriage between himself and Mary Melton. The probate court stated in its judgment that Melissa Melton had proven only that Mary Melton suffered from mentally disabling dementia in January 2007, and not in 2001 as Melissa asserted. The probate court found that, from 2003 to 2007, documents prepared by six different disinterested persons, including Mary herself, indicated that she was married to Jenkins. The probate court discounted Jenkins’s testimony that he had lived with Mary since 1995, but it found the evidence to be undisputed that he was living with her at the time of her death and that he had been living with her for some period before her death. The probate court further found that Jenkins had cared for Mary during the last years of her life; that Jenkins and Mary had paid household expenses from a joint bank account; that Jenkins testified that he and Mary wore wedding bands for several years before Mary’s death; that Jean Love, Mary’s friend, had observed Mary wearing a ring that could be considered a wedding ring; that Mary’s death certificate and obituary, which Melissa did not attempt to correct, listed Jenkins as her spouse; and that Jenkins had paid for Mary’s funeral and burial expenses. Applying the law to the facts, the probate court concluded that Mary and Jenkins had had the capacity to marry from 2002-2003 to the time of Mary’s death; that they had agreed to enter into a marriage relationship between 2002-2003 and 2007; that other persons in the public had recognized their marriage; and that they had cohabited with one another and shared living expenses.

Melissa certainly presented substantial evidence disputing many of Jenkins’s claims, and her cross-examination of Jenkins certainly raised questions as to the credibility of his testimony in some respects; however, it was the duty of the probate court to resolve questions as to the weight of the evidence and the credibility of the witnesses. See Etheridge v. Yeager, 465 So.2d 378, 380 (Ala.1985). Our standard of review does not permit us to reverse the judgment because substantial evidence may support a different conclusion. Yeager, 465 So.2d at 380-81 (“ ‘[I]t is not the province of this court to substitute its judgment for that of the trier of facts unless his findings are palpably wrong.’ ” (quoting Forest Inv. Corp. v. Commercial Credit Corp., 271 Ala. 8, 12, 122 So.2d 131, 134 (1960))). I believe the probate court reasonably could have been clearly convinced from the evidence that Jenkins and Mary had entered into a common-law marriage before Mary’s death; therefore, I find no basis for reversing the judgment.

BRYAN, J., concurs.

      . Jenkins stated that they did not have a marriage license.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Richard KNIGHT v. JOHN KNOX MANOR, INC.
    2100782.
    Court of Civil Appeals of Alabama.
    March 16, 2012.

      John C. Craft, Montgomery, for appellant.
    Mark N. Chambless of Chambless Math Carr, P.C., Montgomery, for appellee.
   BRYAN, Judge.

Richard Knight (“Richard”) appeals from a judgment in favor of John Knox Manor, Inc. (“John Knox Manor”). We reverse and remand.

Factual Background and Procedural History

Richard’s mother, Susie Knight (“Susie”), began living in an independent-living apartment at a facility owned and operated by John Knox Manor (“the facility”) in 2003. Subsequently, she moved to an assisted-living unit at the facility. At some point before January 15, 2008, Susie required hospitalization and, when she was discharged from the hospital, she was moved into the nursing-home unit at the facility.

On January 15, 2008, shortly after Susie had been moved into the nursing-home unit, Richard met with Patricia Burnett, an employee of John Knox Manor who handles admissions to the nursing-home unit. The record indicates that, when Richard met with Burnett, Susie was incompetent to sign a contract, although the record does not contain any specific information regarding the cause of her incompetence or its duration. No guardian or conservator had been appointed for Susie when Richard met with Burnett. Although Susie had executed a durable power of attorney (“the durable power of attorney”) appointing Richard her attorney-in-fact with the power to make health-care decisions for her and to pay for her health care if she should become incapacitated, Richard was not authorized to act on Susie’s behalf by the durable power of attorney when he met with Burnett on January 15, 2008, because the durable power of attorney conditioned the exercise of his powers as her attorney-in-fact on Susie’s incapacity being certified by two physicians and two physicians had not certified that she was incapacitated.

Burnett presented Richard with an admission contract (“the contract”), which John Knox Manor required Richard to sign as a “Responsible Party” as a condition of Susie’s admission to the nursing-home unit. On cross-examination, Burnett testified:

“Q. Was Mr. Knight required to sign the financial long-term care admission agreement in order for his mom to be admitted to the nursing home?
“A. Yes, sir, because she was not able.
“Q. The answer is yes?
“A. Yes, sir.
“Q. Did you explain to Mr. Knight that he wasn’t required to sign that agreement as a responsible party?
“A. No, sir, because I have never had anyone, you know. That was the policy. I didn’t know. That was it. I didn’t know. Someone had to sign it.
“Q. You didn’t tell him, no, Mr. Knight, you don’t have to sign this? Particularly the financial agreement, you did not tell him he did not have to sign that, did you?
“A. No, sir.”

In pertinent part, the contract provided:

“AGREEMENT OF PATIENT OR RESPONSIBLE PARTY:
“6. To pay the basic room and board rate agreed upon with the facility, at specified intervals.
“FINANCIAL AGREEMENT:
“The patient or responsible party agrees to pay $139.00 daily and the facility will accept this payment in full consideration for care and services rendered, as follows:
“TO BE PAID BY PATIENT OR RESPONSIBLE PARTY:
“1. Room, board, and nursing care $4,309.00
“2. Supplies varies
“3. Personal Laundry $45.00”

Richard signed the contract during his meeting with Burnett on January 15, 2008. The line for Richard’s signature was designated as the signature line for the “Resident/Sponsor/Responsible Party.” Burnett signed the contract on behalf of John Knox Manor.

Susie remained in the nursing-home unit at the facility until she died 22 months later. During the 22 months she was a resident in the nursing-home unit, Susie received monthly Social Security benefits, monthly retirement benefits from the Kansas Public Employees Retirement System, and monthly retirement benefits from the United States government; those benefits totaled $31,326.76. In addition, the record indicates that Susie received dividends totaling $23.89 from Wachovia Corporation in 2008*' The record contains no evidence regarding whether she received any dividends in 2009.

The record indicates that on February 5, 2008, Richard sold 450 shares of stock in Wachovia Corporation owned by Susie; however, the record does not contain any evidence indicating the amount of the proceeds that resulted from the sale of those 450 shares. The record indicates that, on June 16, 2008, Susie owned 22.124 shares of stock in Wachovia Corporation and that those shares had a value of $410.57 on that date. In June 2008, Richard sold 70 shares of stock in MetLife, Inc., owned by Susie and received a total of $4,715.86. In September 2008, Richard surrendered two MetLife policies on Susie’s life and received the cash-surrender value of those policies, which totaled $4,194.14. The record also indicates that Susie owned three shares of stock in Navistar International Corporation while she was in the nursing-home unit, but the record does not contain any evidence indicating the value of those shares.

The record also indicates that, before she became a resident in the nursing-home unit, Susie had opened a bank account at Regions Bank in her name and the name of her granddaughter and that she had deposited an unspecified sum of money in that account to be used for her granddaughter’s education, that an unspecified amount of funds belonging to the granddaughter were subsequently deposited into that account, and that Susie’s name was taken off of the account after she became a resident in the nursing-home unit.

In addition, the record indicates that, in 1992, Susie opened a checking account at Wachovia Bank in her name and Richard’s name (“the Wachovia account”), that both her income and Richard’s income were deposited into that account, and that both her expenses and Richard’s expenses were paid with funds from that account.

Richard made the following payments to John Knox Manor for charges incurred by Susie:

March 6, 2008 $ 8,118.10
April 10, 2008 4,588.70
May 9, 2008 1,379.24
May 13, 2008 128.00
June 16, 2008 4,400.00
Aug. 15, 2008 2,100.00
Sept. 30, 2008 6,550.00
Dee. 3, 2008 2,550.00
Dec. 5, 2008 1,000.00
Feb. 25, 2009 1,000.00
March 23, 2009 2,500.00
Aug. 6, 2009 1,052.00
Aug. 6, 2009 7,347.06
Total $42,713.10

After Susie’s admission to the nursing-home unit, Richard applied twice for Medicaid to pay John Knox Manor’s charges; however, the Alabama Medicaid Agency denied both applications on the ground that Richard had failed to submit sufficient information. John Knox Manor then petitioned the probate court to appoint the county guardian and conservator to serve as Susie’s guardian and conservator. The probate court granted John Knox Manor’s petition and appointed the county guardian and conservator to serve as Susie’s guardian and conservator. Thereafter, the county guardian and conservator attempted to obtain information regarding Susie’s finances from Richard in order to satisfy the Alabama Medicaid Agency. The guardian and conservator submitted two applications for Medicaid on Susie’s behalf; however, both of those applications were denied on the ground that necessary information had not been provided. The record indicates that the primary reason all four applications were denied was that Richard was unable to meet a requirement imposed by the Alabama Medicaid Agency that he account for (1) every deposit into the Wa-chovia account that was from a source other than Susie’s Social Security benefits, Kansas Public Employees Retirement System retirement benefits, and United States government retirement benefits and (2) every disbursement from the Wachovia account that was for an expense other than the fees charged by John Knox Manor.

On September 1, 2009, John Knox Man- or and the county guardian and conservator sued Richard. However, when Susie died a short time later, the county guardian and conservator moved the trial court to strike him as a party plaintiff on the ground that Susie’s death had terminated his authority to represent her interests, and the trial court granted that motion.

John Knox Manor stated claims of breach of contract, account stated, conversion, and breach of fiduciary duty against Richard, and it sought a total of $58,857.12 in damages, which represented the unpaid balance of the fees Susie had incurred.

Answering, Richard denied the material allegations of the complaint and denied that he was liable to John Knox Manor. In addition, Richard asserted as an affirmative defense that the contract was void and unenforceable because, he said, it was illegal, unconscionable, lacked consideration, and violated public policy. Subsequently, Richard asserted a counterclaim alleging that John Knox Manor’s employees had indicated to him that his execution of the contract as a “Responsible Party” was a mandatory condition of Susie’s admission to the nursing-home unit and that they had not informed him that federal and state law required John Knox Manor to admit her without Richard’s executing the contract as a “Responsible Party.” Based on those allegations Richard claimed that John Knox Manor was liable for engaging in a deceptive trade practice and that it was liable for an amount equal to the amount he was allegedly obligated to pay John Knox Manor as a “Responsible Party” under the contract.

Thereafter, Richard moved for a partial summary judgment with respect to John Knox Manor’s claims of breach of contract and account stated. As the ground of his motion, Richard asserted that the contract was unenforceable against him because, he said, it violated 42 U.S.C. § 1396r(c)(5)(A)(ii), 42 C.F.R. § 483.12(d)(2), and Alabama Administrative Code (Alabama Medicaid Agency), Rule 560-X-10-.02(9), and that, therefore, it could not constitute the basis of valid claims of breach of contract and account stated. John Knox Manor opposed the motion, and the trial court heard argument regarding the motion on the day of trial. After hearing the parties’ arguments, the trial court took the motion under advisement and proceeded with a bench trial at which it received evidence ore tenus.

Following the trial, the trial court, on December 14, 2010, entered the following judgment:

“This cause comes before the Court following Bench Trial, the same having been considered, it is hereby ORDERED, ADJUDGED AND DECREED that judgment shall be entered for [John Knox Manor] and against [Richard] in the amount of FIFTY-EIGHT THOUSAND, EIGHT HUNDRED FIFTY-SEVEN DOLLARS and TWELVE CENTS ($58,857.12).”

On January 12, 2011, Richard filed a Rule 59, Ala. R. Civ. P., postjudgment motion. In his motion, Richard moved the trial court to amend the judgment to state how it calculated the amount of the damages awarded John Knox Manor and to expressly rule on Richard’s counterclaim. In addition, Richard moved the trial court to vacate its judgment on the grounds (1) that John Knox Manor could not prevail on its claim of breach of contract because, Richard said, the contract was unenforceable because, he said, it violated federal and state law prohibiting John Knox Manor from requiring Richard to sign the contract as a condition of Susie’s admission to the nursing-home unit; (2) that John Knox Manor could not prevail on its claim of account stated because the contract on which it was based was unenforceable; (3) that John Knox Manor could not prevail on its claim of conversion because, Richard said, (i) John Knox Manor lacked standing to prosecute a claim of conversion based on Richard’s alleged conversion of money owned by Susie, (ii) the money that was the subject of John Knox Manor’s conversion claim would not support a conversion claim because it was not specific money capable of identification, and (iii) John Knox Manor had failed to prove that Richard had converted any of Susie’s money; and (4) that John Knox Manor could not prevail on it claim of breach of fiduciary duty because, Richard said, John Knox Manor had failed to prove that Richard owed it a fiduciary duty or that he had breached such a duty.

On January 20, 2011, the trial court denied Richard’s Rule 59 motion, and Richard timely appealed to the supreme court on February 1, 2011. The supreme court then transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

As a threshold matter, we note that the trial court neither expressly ruled on Richard’s counterclaim in its judgment nor certified its judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P, Thus, unless the trial court’s judgment impliedly disposed of Richard’s counterclaim, it is not a final, appealable judgment. See Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (“ ‘An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment.’” (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002))). However, we conclude that the trial court’s judgment did impliedly dispose of Richard’s counterclaim. Richard’s counterclaim sought an award of damages offsetting any amount of damages awarded John Knox Manor. Consequently, because the trial court awarded John Knox Manor the full amount of damages it sought and did not offset any portion of that award with an award of damages to Richard, the trial court’s judgment necessarily denied Richard’s counterclaim. See Dutton v. Chester F. Raines Agency, Inc., 475 So.2d 545, 547 (Ala.1985) (“While the trial court may not have specifically addressed Count Four [of the defendant’s counterclaim], the court necessarily rejected that claim by rendering a judgment in favor of [the plaintiff].”). Therefore, the trial court’s judgment is a final, appealable judgment.

Standard of Review

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“1 “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 918 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

Richard first argues that the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s breach-of-contract and account-stated claims because, Richard says, they were based on a contract that was unenforceable by virtue of 42 U.S.C. § 1396r(c)(5)(A)(ii), 42 C.F.R. § 488.12(d)(2), and Alabama Administrative Code (Alabama Medicaid Agency), Rule 560-X-10-.02(9).

42 U.S.C. § 1396r(c)(5), which applies to nursing homes that participate in the Medicaid program, provides, in pertinent part:

“(A) Admission
“With respect to admission practices, a nursing facility must—
“(ii) not require a third-party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility....
“(B) Construction
“(ii) Contracts with legal representatives
“Subparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident’s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability ) to provide payment from the resident’s income or resources for such care.”

(Emphasis added.)

42 C.F.R. § 483.12(d)(2), a regulation promulgated by the United States Department of Health and Human Services that applies to nursing homes that participate in the Medicaid program, provides:

“(2) The facility must not require a third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may require an individual who has legal access to a resident’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.”

(Emphasis added.)

Alabama Administrative Code (Alabama Medicaid Agency), Rule 560-X-10-.02(9), provides:

“Nursing facilities must not require a third party guarantee of payment to the facility as a condition of admission, or expedited admission, or continued stay in the facility. Nursing facilities may require an individual who has legal access to a resident’s income or resources available to pay for nursing facility care, to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources.”

(Emphasis added.)

In the case now before us, it is undisputed that John Knox Manor was operating a nursing home and was participating in the Medicaid program and that, therefore, it was subject to 42 U.S.C. § 1396r(c)(5)(A)(ii), 42 C.F.R. § 483.12(d)(2), ánd Alabama Administrative Code (Alabama Medicaid Agency), Rule 560-X-10-.02(9), when Richard signed the contract as a “Responsible Party.” The contract provided that the “Resident or Responsible Party” would pay Susie’s charges. John Knox Manor argues that the contract did not run afoul of 42 U.S.C. § 1396r(e)(5)(A)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9) because, it says, Richard’s liability was limited to paying Susie’s charges using Susie’s income and assets. In support of this argument, John Knox Manor cites testimony of Sherry Roundtree, the executive administrator of John Knox Manor, and a written document titled “Admission Policy” that was apparently given to Richard when he signed the contract. Although Roundtree testified that the contract obligated Richard only to use Susie’s income and assets to pay Susie’s charges, she admitted on cross-examination that the contract did not contain such a limitation:

“Q. So under this [contract], it is your contention Mr. Knight agreed to be responsible for the full room and board rate to the nursing home; is that correct?
“A. He agreed to see that her charges were paid.
“Q. It has got his name on here. In other words, you are saying—
“A. For his mother.
“Q. —as responsible party, you are alleging he has agreed to pay the full room and board rate, plus the supplies and other items?
“A. His mother was not competent to do that. As a representative for her, he agreed to see those things were paid.
“Q. That’s right, as a third-party for her then, you are requiring him to pay these items?
“A. No, to use her money to pay for it.
“Q. That’s not what this says.
“A. Well, it may not say it, but that’s what it means.
“Q. Let’s talk about what the [contract] says.
“A. Okay.
“Q. This [contract] basically is requiring, per your allegations, that Richard Knight be responsible for the entire nursing home bill; is that correct?
“A. That’s correct.
“Q. It does not say that Richard Knight is required to pay over any income or resources of his mother, does it?
“A. No, it doesn’t.”

(Emphasis added.)

Moreover, although the document titled “Admission Policy” states that “[t]he Responsible Party is a person who agrees to assist the facility in providing for the health care of the resident and to provide the facility payment from the resident’s income or resources for services provided ” (emphasis added), that document was not a part of the contract.

“The general rule of contract law provides that if a written contract exists, the rights of the parties are controlled by that contract and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms. Clark v. Albertville Nursing Home, Inc., 545 So.2d 9, 11 (Ala.1989). However, if the contract is ambiguous, parol or extrinsic evidence will be allowed to clarify the contract. Cummings v. Hill, 518 So.2d 1246, 1247 (Ala.1987).”

Marriott Int’l, Inc. v. deCelle, 722 So.2d 760, 762 (Ala.1998). John Knox Manor did not contend before the trial court and does not contend before this court that the contract is ambiguous regarding Richard’s obligations, and we find no ambiguity. The plain language of the contract indicates that Richard is obligated to pay Susie’s charges, and it contains no language limiting his obligation to providing John Knox Manor with payment for those charges from Susie’s income and assets. Accordingly, we find no merit in John Knox Man- or’s argument that the contract limited Richard’s liability to paying John Knox Manor using Susie’s income and assets.

In Slovik v. Prime Healthcare Corp., 838 So.2d 1054, 1057 (Ala.Civ.App.2002), this court held that a nursing home’s claim alleging that a third party “had agreed to be personally responsible each month for forwarding a portion of [a nursing-home patient’s] Social Security income, over which [the third party] had control, to [the nursing home] to pay for part of the cost of the [patient’s] nursing-home care” and that “[the third party] was liable for damages resulting from his failure” to “forward the agreed-upon funds to the [nursing home]” was “premised upon an alleged agreement by [the third party] as a primary obligor, rather than as a guarantor of [the patient’s] performance.” This court implied that such an agreement would not violate Rule § 560-X-10-.02(9). See 838 So.2d at 1057 n. 2. However, the issue whether that alleged agreement violated 42 U.S.C. § 1396r(c)(5)(A)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9) was not squarely before us in Slovik

The language in 42 U.S.C. § 1396r(c)(5)(A), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9), stating that a nursing home must not require a third-party guarantee of payment to a facility as a condition of a patient’s admission might suggest that they prohibit a nursing home only from requiring a third party to guarantee the patient’s payment as a condition of the patient’s admission and that they do not prohibit a nursing home from requiring a third party to agree to be personally liable for the patient’s debts as a primary obligor. However, the language in 42 U.S.C. § 1396r(c)(5)(B)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9), allowing a nursing home to “require an individual who has legal access to a resident’s income or resources available to pay for nursing facility care, to sign a contract, without incurring personal financial liability, to provide facility payment from the resident’s income or resources” (emphasis added), indicates that Congress intended to prohibit a nursing home from requiring a third party to incur personal liability for a patient’s charges as a condition of the patient’s admission regardless of whether such a requirement was imposed in the form of a guarantee of the patient’s performance or in the form of a primary obligation. Accordingly, we conclude that, because John Knox Manor required Richard to sign the contract as a condition of Susie’s admission to the nursing-home unit, the language of the contract, which requires Richard to pay Susie’s charges as a primary obligor, violates 42 U.S.C. § 1396r(c)(5)(A)(ii) and (B)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9).

The parties have not cited any Alabama case addressing the issue whether contractual language that violates 42 U.S.C. § 1396r(c)(5)(A)(ii) and (B)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9) is thereby rendered unenforceable, and we have not found such an Alabama case. However, in Manor of Lake City, Inc. v. Hinners, 548 N.W.2d 573 (Iowa 1996), the Iowa Supreme Court held that contractual language that violates 42 U.S.C. § 1396r(c)(5)(A)(ii) by imposing personal liability on a third party for payment of the patient’s charges as a condition of the patient’s admission is unenforceable.

In Manor of Lake City, Dean Hinners (“Dean”), who was a son of Edna Hinners (“Edna”), signed an agreement for the admission of Edna to a nursing home owned and operated by Manor of Lake City, Inc. (“Manor”), as “Responsible Party.” In pertinent part, the admission agreement provided that “ ‘[t]he Responsible Party agrees to be bound in his or her individual capacity by all of the terms and conditions of the Agreement pertaining to the Resident.’ ” 548 N.W.2d at 575 n. 1. Dean personally paid Edna’s charges for approximately one year but then stopped. Thereafter, Manor sued Dean. Among the claims stated by Manor was a breach-of-contract claim in which Manor sought a judgment against Dean personally for the unpaid charges. The jury returned a verdict against Dean on that claim, as well as others, and a judgment was entered on the jury’s verdict. Appealing to the Iowa Supreme Court, Dean argued “that, as to him, the nursing home’s contract claim should have been barred as a matter of law because the contract required a third-party guarantee in violation of federal law.” 548 N.W.2d at 575. The Iowa Supreme Court agreed with Dean, stating:

“It was of course entirely permissible under § 1396r(e)(5)(B)(ii) for Manor to require an individual who has legal access to a resident’s income to tender payment from that resident’s income for the care rendered. This is exactly what the nursing care contract’s responsible-party clause properly contemplates. Manor’s form agreement however goes further when it causes the signing party to become personally liable. This extension clearly violates federal law if it was a condition of admission.”

548 N.W.2d at 576.

Although the objectionable contract language at issue in Manor of Lake City differs from the objectionable language of the contract at issue in the case now before us, the objectionable language in both contracts is objectionable for the same reason — it purports to impose personal liability on a third party for a patient’s charges.

We conclude that, because it is undisputed that John Knox Manor required Richard to sign the contract as a condition of Susie’s admission to the nursing-home unit and because the plain language of the contract purported to impose personal liability on Richard for the payment of Susie’s charges, the contract language purporting to impose personal liability on Richard for the payment of Susie’s charges violated 42 U.S.C. § 1396r (c) (5) (A) (ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10~.02(9). We further conclude that, because the language of the contract purporting to impose personal liability on Richard for payment of Susie’s charges violates 42 U.S.C. § 1396r(c)(5)(A)(ii), 42 C.F.R. § 483.12(d)(2), and Rule 560-X-10-.02(9), that language was unenforceable. Because that language was unenforceable, the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s breach-of contract claim. Moreover, because the basis for John Knox Manor’s account-stated claim was the personal liability for Susie’s charges that the contract purported to impose on Richard and the contractual language purporting to impose that personal liability on Richard is unenforceable, the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s account-stated claim.

Richard also argues that the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s conversion claim on the ground, among others, that John Knox Manor failed to meet its burden of proving the essential elements of conversion, which include “ ‘a wrongful taking, an illegal assumption of ownership, an illegal use or misuse of another’s property, or a wrongful detention or interference with another’s property.’ ” SouthTrust Bank v. Donely, 925 So.2d 934, 939 (Ala.2005) (quoting Riscorp, Inc. v. Norman, 915 So.2d 1142, 1152 (Ala.2005) (emphasis omitted)).

For purposes of our analysis, we will assume, without deciding, that John Knox Manor was subrogated to any conversion claim Susie may have had against Richard. The undisputed evidence established that Richard paid John Knox Manor a total of $42,713.10 for Susie’s care. John Knox Manor did not prove the amount of proceeds Richard received as a result of the sale of 450 shares of Susie’s Wachovia Corporation stock or the value of the three shares of stock in Navistar International Corporation that were apparently never sold. Consequently, the total value of Susie’s property that John Knox Manor could prove passed through Richard’s hands totaled $40,671.22, which was less than the total amount he paid John Knox Manor for Susie’s care. Because using Susie’s property to pay John Knox Manor for her care was a proper use of Susie’s property and John Knox Manor failed to prove that Richard received property belonging to Susie with a value in excess of the $42,713.10 he paid John Knox Manor for her care, John Knox Manor failed to prove that Richard had converted any of Susie’s property. Accordingly, the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s conversion claim.

Finally, Richard argues that the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Manor’s breach-of-fiduciary-duty claim on the ground, among others, that John Knox Manor failed to prove that he had breached any fiduciary duty he owed John Knox Manor. For purposes of our analysis, we will assume, without deciding, that Richard owed John Knox Man- or a fiduciary duty. Because, as discussed above, John Knox Manor was prohibited from imposing personal liability for Susie’s charges on Richard, any fiduciary duty Richard would have owed John Knox Man- or would have been limited to using Susie’s property to pay John Knox Manor for her care. As demonstrated above, John Knox Manor failed to prove that Richard received property belonging to Susie with a value greater than the $42,713.10 he paid John Knox Manor for her care. Therefore, John Knox Manor failed to prove that Richard had breached any fiduciary duty he may have owed John Knox Manor. Consequently, the trial court erred insofar as it may have based its judgment in favor of John Knox Manor on John Knox Man- or’s breach-of-fiduciary-duty claim.

Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The record indicates that Susie’s total income for 2008 was $16,794.96, that her total income for the first seven months of 2009 was $10,172.26, and that her total income for August, September, and October 2009 was $4,359.54. Those amounts total $31,326.76.