author: LYONS, Justice. MURDOCK, Justice

text:
    Ex parte Cedrick WEBB. (In re Montgomery County Board of Education v. Cedrick Webb).
    1080711.
    Supreme Court of Alabama.
    Sept. 25, 2009.
    Rehearing Denied Nov. 20, 2009.

      William F. Patty and William R. Gordon, Jr., of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; J. Cecil Gardner of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for petitioner.
    Terry G. Davis of Davis & Hatcher, L.L.C., Montgomery, for respondent.
    Gregory B. Stein of Stein, Brewster & Pilcher, LLC, Mobile, for amicus curiae Alabama Education Association, in support of the petitioner.
    David R. Boyd, Dorman Walker, and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the respondent.
   LYONS, Justice.

Cedrick Webb was a physical-education teacher at Bellingrath Junior High School in Montgomery. The Montgomery County Board of Education (“the Board”) canceled Webb’s employment contract in February 2007. Webb contested the cancellation, and the matter was heard before a hearing officer who reinstated Webb’s employment yet ordered discipline in the form of a temporary suspension. The Board appealed the hearing officer’s decision to the Court of Civil Appeals; that court reversed the decision and remanded the cause. Montgomery County Bd. of Educ. v. Webb, 53 So.3d 96 (Ala.Civ.App.2008). Webb filed an application for a rehearing, which the Court of Civil Appeals overruled. Webb then petitioned this Court for a writ of certiorari, and we granted certiorari review. We reverse and remand.

Statutory Context

The facts and procedural history of this case are best understood against the background of the Alabama Teacher Tenure Act, § 16-24-1 et seq., Ala.Code 1975, as amended by Act No. 2004-566, Ala. Acts 2004. Section 16-24-2(a) provides:

“Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.”

It is undisputed that Webb had attained continuing-service status under § 16-24-2(a).

Sections 16-24-8 to -10, Ala.Code 1975, govern the cancellation of employment contracts by the employing board of education for teachers who have attained continuing-service status. Section 16-24-8 provides that an employment contract of a teacher who has attained continuing-service status may be canceled only for the following reasons: “incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, justifiable decrease in the number of teaching positions or other good and just cause.” Employment contracts may not be canceled “for political or personal reasons.” § 16-24-8.

Section 16-24-9 establishes the procedure for cancellation of an employment contract for one of the reasons in § 16-24-8. It provides that the teacher is to receive written notice from the superintendent stating the superintendent’s intent to recommend cancellation and the reasons and factual basis for the recommendation of cancellation. Once notified, the teacher may obtain a conference with the employing board. If the board votes to cancel the teacher’s employment contract, the teacher is entitled to written notice of the cancellation. The teacher then has 15 days after receipt of the notice to contest the board’s decision. If the teacher does so, he or she is then entitled to have the matter considered by a hearing officer.

Section 16-24-10(a) grants the hearing officer specific powers and responsibilities. Pertinent to this action, § 16-24-10(a) provides:

“The hearing officer shall conduct a de novo hearing and shall render a decision based on the evidence and/or information submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee: Cancellation of the employment contract, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee. The hearing officer shall render a written decision, with findings of fact and conclusions of law, within 30 days after its hearing.”

(Emphasis added.) Section 16-24-20(c), Ala.Code 1975, further provides:

“During all hearings conducted before a hearing officer pursuant to this article, the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years. Testimony and exhibits shall be admitted into evidence at the discretion of the hearing officer. The hearing officer shall also have the authority and discretion to exclude or limit unnecessary or cumulative evidence.”

(Emphasis added.)

Section 16-24-10(b) establishes the procedures for an appeal from the hearing officer’s decision. That section states, in relevant part:

“All appeals of a final decision of the hearing officer shall lie with the Alabama Court of Civil Appeals.... The Court of Civil Appeals shall have discretion to refuse to hear appeals of final decisions of a hearing officer pursuant to this article.... The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.”

Factual Background and Procedural History

On May 3, 2006, Webb disciplined two students who were accused of throwing rocks and scissors at a third student. The details of the events that occurred during Webb’s disciplining of the two students are disputed. One of the two students accused Webb of cursing at him and throwing water on his legs, soaking his pants; the other student supported that accusation. Webb denied cursing but admitted throwing water from his drinking cup to the ground at the student’s side; Webb denied that the student got wet. The students submitted written statements, as did Webb, the principal, and a teacher who had witnessed some of the events. On May 4, 2006, Webb was placed on paid administrative leave pending the outcome of an investigation into the incident.

Webb remained on administrative leave through the end of the 2005-2006 school year and the beginning of the 2006-2007 school year. On January 26, 2007, in compliance with § 16-24-8, Superintendent Linda Robinson wrote Webb and advised him that she intended to recommend that the Board cancel his contract. Robinson advised Webb that her recommendation was based on the following grounds: “insubordination, neglect of duty, failure to perform duties in a satisfactory manner, and other good and just cause.” Robinson specified two reasons supporting these grounds. The first, “Charge I,” related to the May 3, 2006, incident; the second, “Charge II,” related to 11 disciplinary actions in Webb’s employment history between January 2002 and February 2006.

Webb contested the charges on January 29, 2007. In compliance with the procedures established by § 16-24-9, he requested and was granted a conference with the Board. The record on appeal does not include a written record of the conference or of the Board’s decision; however, it is undisputed that on February 20, 2007, the Board voted to cancel Webb’s contract. On February 28, 2007, Webb contested the Board’s decision and requested a hearing pursuant to § 16-24-9. The parties selected a hearing officer who “conduct[ed] a de novo hearing,” as required by § 16-24-10(a), on July 25, 26, and 27, 2007.

Before the hearing, the Board filed a written motion in limine seeking to preclude Webb from presenting evidence related to the events underlying the disciplinary actions identified in charge II. When orally arguing its motion in limine immediately before the hearing began, the Board asked that the hearing officer reserve his ruling on the motion and allow the Board to object to specific evidence as Webb offered it. Counsel for the Board stated: “We do acknowledge that Mr. Webb is entitled to cross-examine and go into these matters because these matters were the basis upon which the Board made its decision to cancel the contract. But we’re saying that that’s not unfettered” and that Webb should not be allowed to introduce evidence regarding “extraneous issues.” Counsel further explained that Webb had an opportunity to respond to the disciplinary actions at the time they occurred and the Board “fe[lt] that the evidence should be limited to that but with some latitude to explore that.” Per the Board’s request, the hearing officer reserved his ruling on the Board’s motion.

The parties subsequently submitted testimony and documentary evidence regarding charges I and II. In light of the narrow issue raised in Webb’s petition to this Court, we need not describe the evidence presented at the hearing in great detail. However, we find the following regarding the parties’ presentation of evidence relating to charge II relevant to our consideration of the issues.

The Board presented documentary evidence from Webb’s personnel file regarding each of the 11 disciplinary actions underlying charge II. This evidence varied for each disciplinary action but, in the aggregate, included letters of reprimand, investigation summaries, and written witness statements. The Board also solicited testimony from two of the principals under whom Webb had worked when the disciplinary actions were taken. The principals, contrary to the conclusion reached by the Court of Civil Appeals, testified regarding the details of the events that led to the disciplinary actions, including their investigations into and personal knowledge of those events. Notably, at one point during the hearing, the Board attempted to solicit evidence regarding the substance of a complaint that resulted in a disciplinary action against Webb in October 2005. When Webb raised a hearsay objection, counsel for the Board argued that the evidence should be admitted, explaining that the Board’s case against Webb was “about the complaint” and stating: “I don’t know how we can go forward without showing what the complaint was.... I’m just trying to understand how can we talk about the complaint other than just say he got a ten-day suspension, and that’s it.” Counsel for the Board explained, referring to “an employee’s past performance”:

“[A] board may appropriately consider those things.... [Tjhey look at all of this history, all of these reprimands and all of these suspensions and all of this conduct and all the complaints. All of that went into the decision that the Board made that this employee needs to be cancelled.... And it is not necessarily — whether it proves or does not prove whether the event happened.... But without the Board being able to show the basis for this recommendation, it simply — it’s just simply in the record that he got a ten-day suspension, and it certainly goes well beyond that in terms of what happened.”

The hearing officer sustained Webb’s hearsay objection, but he allowed the Board to present testimony regarding the facts underlying the disciplinary action.

Webb offered evidence to defend, on the merits, some of the 11 disciplinary actions underlying charge II. He also offered evidence to show that some of the disciplinary actions were the result of personal bias against him. First, Webb presented his own testimony regarding the events, denying the substance of the principals’ testimony and explaining his recollection of what had happened to result in those disciplinary actions. He also admitted that he accepted many of the 11 disciplinary actions without contest. The Board did not raise any objections to the substance of Webb’s testimony. Webb then offered documents to substantiate his testimony and testimony from other witnesses regarding the events underlying the disciplinary actions. The Board moved to exclude this evidence “as being offered to prove the truth of the matters asserted back then.” The Board, through counsel, argued:

“[W]e have objections to live witnesses commenting about incidents and the truth of whether or not they occurred primarily because, again, they are not relevant to unprove whether or not the suspensions were received, the warnings were received. All those are things and facts that have already occurred in the past. And what Mr. Webb is attempting to do is to try to unprove things that have already occurred upon which he has received disciplinary actions for, which we feel is not appropriate to go into factual details of about what happened and to try to undo those because the suspensions have been acted upon.... And so we object to that testimony and move to exclude any witness that’s put on to testify about factual matters about which Mr. Webb has already been suspended about.”

The Board explained that its offer of evidence regarding the events underlying the disciplinary actions was only to show the “basis” of the disciplinary actions, and “not necessarily to show the truth of the matters that were asserted.”

On January 15, 2008, the hearing officer issued a detailed decision. The hearing officer denied the Board’s motion in limine, finding: “To not allow these evidentiary submissions and testimony to be introduced into the hearing would create an undue burden to the presentation of [Webb’s] case, and would be a violation of the Alabama Code.” The hearing officer made detailed findings regarding charge I and the disciplinary actions underlying charge II. Ultimately, he ordered that Webb be reinstated to his position “at a school of the Board’s choice” but that Webb be temporarily suspended without pay as a result of his actions on May 3, 2006. The hearing officer also ordered that 9 of the 11 disciplinary actions underlying charge II be expunged from Webb’s personnel file either because they did not warrant disciplinary action or because they resulted from personal animus against Webb.

The Board appealed the hearing officer’s decision to the Court of Civil Appeals pursuant to § 16-24-10(b). The Court of Civil Appeals exercised the discretion given to it by that section and agreed to hear the appeal. The Court of Civil Appeals then reversed the hearing officer’s decision. Webb filed an application for a rehearing, which the Court of Civil Appeals denied. Webb then petitioned this Court for a writ of certiorari. In petitioning for certiorari review, Webb relied upon the ground that the case presented a question of first impression, Rule 39(a)(1)(C), Ala. R.App. P. Webb identified the question, relating to the interpretation of § 16-24-20(c), stating: “In a proposed-termination [of employment] case, where the employer relies in part on events that already occurred in prior years, and that have not been the subject of any prior hearing, is the hearing officer allowed to hear evidence and make de novo findings of fact about those events?” Webb also relied upon the ground of conflict, Rule 39(a)(1)(D), Ala. R.App. P. He contended that the Court of Civil Appeals’ conclusion that the Board’s notice of termination was timely for purposes of cancellation pursuant to § 16-24-12, Ala.Code 1975, conflicted with prior decisions of this Court. We granted cer-tiorari review of both issues.

Standard of Review

“On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.” Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala.1996). Section 16-24-10(b) establishes the standard of review for appeals from a hearing officer’s decision under that section, stating that the hearing officer’s decision “shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious.” This Court has stated: “The Court of Civil Appeals does have the authority to reverse the decision of the hearing officer for failing to follow the applicable law, because the failure to follow the applicable law renders the hearing officer’s decision arbitrary and capricious.” Ex parte Wilson, 984 So.2d at 1170.

Analysis

Webb has raised an issue of first impression regarding the interpretation of the following language of § 16-24-20(c): “[T]he hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years.” We must determine whether this language grants a hearing officer authority simply to consider a teacher’s employment records — including prior disciplinary actions and evidence related to the factual basis for and contemporaneously asserted defenses to those actions — or whether the hearing officer may receive evidence of and consider events in a teacher’s past employment — both good and bad — beyond what is reflected in the teacher’s employment records. We must also consider whether the hearing officer may alter and expunge a disciplinary action in a teacher’s past employment.

“Our inquiry is governed by settled principles of statutory construction:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).”
‘Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).’
“City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006).”

Bright v. Calhoun, 988 So.2d 492, 497-98 (Ala.2008). Furthermore, this Court has stated that its “role is not to displace the legislature by amending statutes to make them express what we think the legislature should have done. Nor is it this Court’s role to assume the legislative prerogative to correct defective legislation or amend statutes.” Siegelman v. Chase Manhattan Bank (USA), Nat’l Ass’n, 575 So.2d 1041, 1051 (Ala.1991).

The Court of Civil Appeals determined that, in considering Webb’s employment history under § 16-24-20(c), the hearing officer erred in admitting, considering, and making determinations regarding matters outside Webb’s personnel record. The court stated:

“[W]e think that the legislature intended that a teacher’s employment history, if considered at all by a hearing officer, be regarded as just that — past history, or historical fact — and, therefore, not open to a trial de novo, but available to be weighed either in support of or in mitigation of the penalty imposed by the Board.
“We conclude that when the legislature provided in § 16-24-20(c) that ‘[tjestimony and exhibits shall be admitted into evidence at the discretion of the hearing officer,’ it meant to give the hearing officer the discretion to consider testimony and documentary evidence indicating the basis for the previous disciplinary action against the teacher as well as any contemporaneous response or defense that the teacher made to the disciplinary action. We also conclude that the legislature intended that such evidence would normally be limited to the materials contained in the teacher’s personnel file....
“We hold that § 16-24-20(c) does not authorize a trial de novo of a teacher’s previous disciplinary actions. Nor does it allow a teacher to offer an explanation of or to assert a defense to a previous disciplinary action that, the record demonstrates, the teacher did not offer or assert at the time he or she was originally disciplined.”

53 So.3d at 104-07 (emphasis added). In its brief to this Court, the Board relies heavily on the Court of Civil Appeals’ reasoning.

We first consider whether the hearing officer in a teacher-employment-termination proceeding may admit and consider evidence outside the teacher’s personnel records. To support the conclusion that the phrase “employment history” in § 16-24-20(c) is limited to the teacher’s personnel records, the Court of Civil Appeals cited § 16-22-14, Ala.Code 1975, which governs the maintenance of personnel records by county boards of education. That section permits teachers to respond to materials in their personnel files, § 16-22-14(c); it requires that certain materials pertaining to a teacher’s work performance be reduced to writing and “may” be included in personnel files, § 16-22-14(e); and it requires that personnel files be made available to hearing officers, § 16-22-14(g)(4). Webb argues that although § 16-22-14(c) permits a teacher to respond to materials in the teacher’s personnel records, it does not require that the teacher do so lest the teacher be barred from defending against the material during any subsequent adverse employment action. Webb likewise argues that nothing in the legislature’s granting of authority to the hearing officer to view a teacher’s personnel records restricts the officer’s consideration to the information contained in those records. We agree. By its plain language, nothing in § 16-22-14 restricts the phrase “employment history” in § 16-24-20(c) to the documents in the teacher’s employment record.

The Court of Civil Appeals also relied on Ex parte Dunn, 962 So.2d 814 (Ala.2007), in which this Court stated: “‘The [Alabama Teacher Tenure] Act allowed the hearing officer to consider the “mitigating factors” evident in [the teacher’s] employment history.’” 53 So.3d at 106 (quoting Dunn, 962 So.2d at 824). In Dunn, the employing board canceled the contract of “Marion Dunn, a tenured science teacher and ... the head varsity basketball coach.” 962 So.2d .at 815. Pursuant to § 16-24-10, Dunn obtained a hearing before a hearing officer who reinstated his employment and fashioned a different sanction. 962 So.2d at 815-16. In doing so, the hearing officer considered evidence of Dunn’s employment history, including “ ‘his ... employment record and other evidence,’ ” such as testimony from witnesses regarding his influence on his students’ lives and his “assets [as] a teacher.” 962 So.2d at 822 (emphasis added). In considering Dunn’s employment history, therefore, the hearing officer considered evidence beyond his employment record, including witness testimony both favorable and unfavorable to Dunn. The employing board appealed the hearing officer’s decision to the Court of Civil Appeals, which determined that the hearing officer’s decision was arbitrary and capricious. 962 So.2d at 816. Dunn petitioned this Court for a writ of certiorari, and this Court granted certiorari review. Id.

Recognizing the authority granted to a hearing officer under § 16-24-10, this Court reversed the Court of Civil Appeals’ decision and remanded the case. Specifically, this Court discussed the hearing officer’s authority to weigh the evidence and to fashion an appropriate disciplinary action, stating:

“Section 16-24-10(a) gives the hearing officer the authority to determine the appropriate disciplinary action. In exercising this authority, ‘the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years. ’ § 16-2Jp-20(c). In this case, the hearing officer’s decision clearly reflects his careful consideration of Dunn’s entire ‘employment history, ’ including the good as well as the indefensible. Only after doing so did the experienced hearing officer determine what he considered to be the appropriate sanction for Dunn’s misconduct. Although we may disagree with the wisdom of the decision, we may not substitute our judgment for that of the hearing officer.”

962 So.2d at 823-24 (emphasis added).

In response to an argument by the employing board in Dunn, this Court stated:

“The Board argues that the ‘hearing officer ... was arbitrary and capricious in placing too much emphasis on mitigating factors, considering the egregious nature of the misconduct itself.’ Board’s brief, at 24. However, it is the hearing officer’s responsibility to weigh the evidence, and this Court may not substitute its judgment for that of the hearing officer. The [Alabama Teacher Tenure] Act allowed the hearing officer to consider the ‘mitigating factors’ evident in Dunn’s employment history, both as a coach and as a teacher. We will not second-guess his decision.”

962 So.2d at 824 (emphasis added). In so stating, this Court in Dunn did not address the limits of the hearing officer’s authority to admit and consider evidence. Instead, this Court discussed the employing board’s argument, emphasizing the hearing officer’s discretion under the Alabama Teacher Tenure Act to consider evidence regarding the teacher’s past employment. Specifically, this Court did not limit the hearing officer’s consideration to documents within the teacher’s employment record; the hearing officer in Dunn clearly did not so limit himself. Nor did this Court imply that the documents and testimony explaining the materials in the file setting forth a teacher’s employment history be considered only as “mitigating factors” weighing in favor of or against cancellation of the teacher’s employment contract. Indeed, it is apparent that the hearing officer in Dunn considered and made determinations regarding conflicting evidence of Dunn’s employment history. We, therefore, find no support in Dunn for the proposition that the phrase “employment history” in § 16-24-20(c) is limited as the Court of Civil Appeals and the Board in this action suggest.

Based on the foregoing, we find nothing in the language of §§ 16-24-10, 16-24-19 (discussed infra), or 16-24-20 that limits the hearing officer’s discretion in conducting a hearing under § 16-24-10 to considering evidence of the basis for and contemporaneously asserted defenses to disciplinary actions against the teacher. We likewise find nothing in the statutory language indicating a legislative intent to limit the hearing officer’s discretion to the admission of documents contained in the teacher’s personnel records. Had the legislature intended to confine the hearing officer’s review to a cold record it could have very easily done so. Instead, the statutory language reflects a legislative intent to grant broad authority to the hearing officer regarding the admission, exclusion, and consideration of evidence, including evidence regarding the teacher’s employment history, both good and bad. We will not substitute our judgment for that of the legislature and impose such limitations.

We acknowledge the conflicting policy arguments regarding the interpretation of § 16-24-20(e). The Court of Civil Appeals reasoned that allowing a teacher to raise new defenses to prior disciplinary actions, as Webb did, would result in protracted litigation regarding the cancellation of the teacher’s employment contract. Under this scenario, teachers would unnecessarily and unfairly extend the hearing process by presenting testimony regarding events previously adjudicated and long past. Webb argues that the Court of Civil Appeals’ construction of § 16-24-20(c) will itself result in unnecessary litigation. Under Webb’s scenario, teachers will defend to the utmost every minor disciplinary action, which may otherwise have been accepted without contest, thus creating unnecessary litigation and disharmony between teachers and administrators. Also, according to Webb, if the evidence were limited to that contained in the personnel record, teachers would not be allowed to present even favorable testimony regarding their employment history if it relates to matters outside the personnel record. Evaluation of the merits of these competing considerations, however, is a matter for the legislature.

Regarding the hearing officer’s decision to alter and expunge disciplinary actions in Webb’s past employment, the Court of Civil Appeals relied on § 16-24-19, Ala.Code 1975, which grants hearing officers the authority to consider contests of minor suspensions only on “written submissions.” The Court of Civil Appeals reasoned that, because the legislature provided for a hearing on written submissions only for minor suspensions, it could not “imagine that the legislature intended to provide, in § 16-24-20(e), for a trial de novo of past disciplinary actions.” 53 So.3d at 106. The Court of Civil Appeals also stated that its decision was grounded in “fundamental fairness” because, it reasoned, the prior disciplinary actions had already been resolved. 53 So.3d at 107.

Webb argues that disparity between the hearing on written submissions authorized by § 16-24-19 and the de novo hearing authorized by § 16-24-10 simply reflects “the difference in the stakes,” i.e., the loss of a few days’ pay versus the cancellation of an employment contract, and does not preclude a hearing officer’s de novo determination regarding past events at a hearing on the cancellation of a teacher’s contract. Webb further contends that, by relying on the disciplinary actions and the facts underlying them as a basis for his termination, the Board put those events at issue.

Based on the plain language of § 16-24-20(c), we conclude that the hearing officer had authority to “consider the employment history of the teacher.” That language does not, however, grant the hearing officer authority, as part of the determination whether a teacher’s employment was properly terminated, to alter prior disciplinary actions or to expunge such actions from the teacher’s employment records. We agree that the hearing officer exceeded his authority under § 16-24-20(c) by altering the prior disciplinary actions against Webb and ordering that his employment records be expunged.

Conclusion

Based on the foregoing, we conclude that the hearing officer did not err in admitting and considering events in Webb’s employment history, including those events related to the 11 disciplinary actions underlying charge II. However, we conclude that the hearing officer erred in altering Webb’s employment history as it concerns the prior disciplinary actions. We, therefore, reverse the Court of Civil Appeals’ decision and instruct that court to remand the cause for the hearing officer to vacate those parts of his order altering Webb’s past disciplinary actions and expunging Webb’s employment records.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in part and dissents in part.

MURDOCK, Justice

(concurring in part and dissenting in part).

Section 16-24-20(c), Ala.Code 1975, states that “the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years.” (Emphasis added.) I consider the plain language of this provision to authorize the hearing officer to consider the teacher’s “employment history,” whatever that may be, not to rewrite that history.

As the Court of Civil Appeals aptly put it, “the legislature intended that a teacher’s employment history, if considered at all by a hearing officer, he regarded as just that — past history or historical fact, and, therefore, not open to a trial de novo, but available to be weighed either in support of or in mitigation of the penalty imposed by the Board.” 53 So.3d at 104-05 (emphasis added). So understood, § 16-24-20(c) allows both the Board and the teacher to present evidence to the hearing officer of the basis and outcome of previous disciplinary actions, as well as events both good and bad in the teacher’s employment history that were not part of previous disciplinary actions.

The hearing officer in the present case actually took upon himself the authority to decide upon and apply, both for purposes of the present case and for the purpose of changing the employment history in its own right, a different version of Cedrick Webb’s “employment history.” In so doing, the hearing officer committed a reversible error of law. See Ex parte Wilson, 984 So.2d 1161, 1170 (Ala.2007) (“The Court of Civil Appeals does have the authority to reverse the decision of the hearing officer for failing to following the applicable law, because the failure to follow the applicable law renders the hearing officer’s decision arbitrary and capricious.”).

In his decision, the hearing officer assumed the power and responsibility to retroactively re-decide disciplinary matters that have long since been concluded, matters decided by the superintendent and the local school board, or perhaps even by the old State Tenure Commission and the courts under the prior statutory scheme, with no respect or deference for those historical decisions, some of which were made by the Board in disciplinary actions concluded before the 2004 amendment even became law. The extent of the hearing officer’s approach in re-deciding the employment history for purposes of applying that history to the present charge is reflected in the fact that the hearing officer believed he had the authority to actually expunge Webb’s employment records as to 9 of the 11 prior offenses over a period dating back to 2002, offenses that were not before the hearing officer. Further, the hearing officer purported not only to make a factual finding that a previously alleged incident of disrespect actually occurred, but to impose, on January 15, 2008, an even greater penalty on Webb than the Board had imposed in 2002 when it adjudicated that matter. The Alabama Teacher Tenure Act simply does not empower the hearing officer to rewrite history, either for or against the teacher.

In an amicus brief submitted by the Alabama Association of School Boards, counsel argues that, “[wjhile the plain language of § 16-24-20(c) provides that the hearing officer may ‘consider’ the teacher’s employment history to make his decision [regarding the currently alleged infraction], there is no provision [giving] the hearing officer [authority] to relitigate each past infraction and to determine whether such previous and concluded action was appropriate.” The Association of School Boards goes on to argue that the statute authorizes the hearing officer to conduct a de novo hearing of the disciplinary action by the employing board as to the currently alleged incident, not to conduct a de novo hearing of the teacher’s employment history. Because I agree with this position, I respectfully dissent from the main opinion to the extent it upholds the decision of the hearing officer.

      . The motion is not included in the record on appeal; however, the hearing officer’s order describes it in detail.

      . The Court of Civil Appeals stated that the Board only had the principals describe their roles in the investigations and authenticate documents and did not present witness testimony regarding the events giving rise to the disciplinary actions. However, an examination of the record reflects otherwise.

      . See Ex parte Wilson, 984 So.2d 1161, 1173 (Ala.2007) (Lyons, J., concurring in part and concurring in the result) ("[E]vidence related to 'like discipline of co-employees' and 'forewarning of possible or probable consequences of the employee's conduct' could be germane to an affirmative defense of personal or political motivation pleaded with proper notice to the board." (emphasis added)). However, the Board did not object to evidence of personal bias on the ground that such evidence is relevant only to an affirmative defense that had not been pleaded in Webb's response to the charges.

      . The hearing officer's order references the parties’ post-hearing briefs; however, those briefs do not appear in the record on appeal.

      . The employing board's appeal in Dunn did not relate to the hearing officer's admission of this evidence.

      .Webb, as previously noted, alleged conflict with precedent as an alternative basis for certiorari jurisdiction, contending that the Court of Civil Appeals' conclusion that the Board’s notice of termination was timely for purposes of cancellation pursuant to § 16-24-12, Ala.Code 1975, conflicted with prior decisions of this Court. Webb argues in his brief that we need not consider this issue if we rule in his favor as to the question of first impression because it is apparent that the hearing officer determined that Webb's May 3, 2006, actions did not warrant termination and imposed discipline in the form of a temporary suspension. We treat this statement as a conditional withdrawal of this ground. Our resolution of the question of first impression in his favor satisfies the condition, and, the issue having been withdrawn, we do not decide it.

      . The "including, but not limited to,” clause describes a subset of the teacher's employment history, consisting of that portion of the history occurring in previous years. The apparent intent of this clause was to explain that, in considering the teacher’s employment history, the hearing officer was not limited to only the history that had occurred in the same school year as the disciplinary action then under consideration by the hearing officer.

      . Not only is this understanding of the statute arguably consistent with the plain language of the statute, it is consistent with and analogous to principles of finality of judgment that obtain injudicial proceedings.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    MONTGOMERY COUNTY BOARD OF EDUCATION v. Cedrick WEBB. Cedrick Webb v. Montgomery County Board of Education.
    2070436.
    Court of Civil Appeals of Alabama.
    Dec. 18, 2009.
    Terry G. Davis of Davis & Hatcher, L.L.C., Montgomery, for appellant/cross-appellee Montgomery County Board of Education.
    William F. Patty and William R. Gordon, Jr., of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; and J. Cecil Gardner, of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appel-lee/cross-appellant Cedrick Webb.
   On Remand from the Alabama Supreme Court

THOMAS, Judge.

This court’s prior judgment has been reversed and the cause remanded by the Alabama Supreme Court. Ex parte Webb, 53 So.3d 121 (Ala.2009). In compliance with the Supreme Court’s opinion, we “remand the cause for the hearing officer to vacate those parts of his order altering [Cedrick] Webb’s past disciplinary records and expunging Webb’s employment records.” 53 So.3d 132. In order to assure compliance with the Supreme Court’s opinion, the hearing officer is instructed to file a return to this court within 21 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On January 13, 2010, on return to remand, the Court of Civil Appeals affirmed, without opinion.


text:
    William L. JONES et al. v. Peggy HAMILTON.
    2081077.
    Court of Civil Appeals of Alabama.
    Jan. 22, 2010.
    Rehearing Denied April 23, 2010.
    Certiorari Denied June 18, 2010 Alabama Supreme Court 1091089.

      James W. Woolley of Woolley Law Firm, LLC, Birmingham; William K. Bradford, Birmingham; Randy J. Hart, Jr., of Hahn, Loeser & Parks, Cleveland, Ohio; and Roger A. Brown of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellants.
    Thomas Coleman, Jr., of Smith, Spires & Peddy, P.C., Birmingham, for appellee.
   THOMAS, Judge.

In May 2008, William L. Jones, Carbon Processing and Reclamation, LLC (“CPR”), and Mid-West Energy, Inc. (“Mid-West”) (CPR and Mid-West are hereinafter collectively referred to at times as “the companies”), sued Peggy Hamilton, alleging that Hamilton, a former employee of the companies and a former majority stockholder of CPR, had violated a confidentiality agreement contained in a 2007 settlement agreement between Hamilton, Jones, and the companies; that Hamilton had violated the Alabama Trade Secrets Act (“the ATSA”), codified at Ala.Code 1975,. § 8-27-1 et seq.; that Hamilton had breached a fiduciary duty to Jones and the companies; and that Hamilton had invaded the privacy of Jones and the companies. Hamilton filed a motion for a summary judgment, and, after considering a response by Jones and the companies and conducting a hearing on the motion, the trial court entered a summary judgment in favor of Hamilton. Jones and the companies appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

The factual allegations giving rise to Jones and the companies’ claims arose out of an incident on April 7, 2008, when Hamilton, at the request of Channon Edwards (“Channon”), provided a key to open a 2000 Toyota Land Cruiser vehicle owned by the companies. Channon was married to, but in the process of a divorce from, Jesse Edwards (“Edwards”), Jones’s half brother and a consultant for the companies. Edwards had been provided access to and was driving the Land Cruiser owned by the companies.

On or about March 31, 2008, Edwards drove Jones to the airport in the Land Cruiser; Jones was leaving for a two-week safari trip to Africa. Once at the airport, Jones noticed that he had left a box of documents containing financial statements and quarterly tax information from the companies, contracts between CPR and/or Mid-West and other companies, and insurance policies behind the backseat of the Land Cruiser. According to the deposition testimony of both Jones and Edwards, Jones told Edwards to be sure to lock the Land Cruiser because those documents were inside. Neither man testified that Jones instructed Edwards to return the documents to either of the companies’ offices, although Edwards returned to one of the companies’ offices after leaving the airport.

In his deposition testimony, Edwards said that he did not drive the Land Cruiser “continuously” between March 31 and April 7, 2008, the date Hamilton provided the key to Channon so that Channon could enter the vehicle. Edwards said that, when he was not driving the vehicle during that week-long period, he left the Land Cruiser parked at one of the companies’ offices. He and Jones also testified that the keys to the companies’ vehicles, including the Land Cruiser, were kept at one or the other of the companies’ offices on a peg or “in the front of the office” and were not regularly kept secured.

On April 7, 2008, Edwards drove the Land Cruiser to his residence and began loading some personal and business records related to one of his former businesses into the back of the vehicle. Chan-non arrived at the residence and became upset over Edwards’s actions. Because she believed that the records that Edwards was loading into the vehicle might be relevant to their divorce, Channon demanded that Edwards not remove the records from the residence. Edwards, however, continued loading the records into the Land Cruiser over Channon’s objections. An altercation between Edwards and Channon ensued, resulting in a 911 telephone call to the police and, ultimately, Edwards’s arrest for domestic violence. Before being taken from the residence via police vehicle, Edwards insisted that the police officer lock the Land Cruiser. The police officer complied with this request and instructed Channon to stay away from the Land Cruiser, an instruction that she did not heed.

Channon consulted an attorney friend, who would not advise her, and then telephoned Hamilton. Channon hoped that Hamilton might still have a set of keys to the Land Cruiser because that vehicle had been Hamilton’s company vehicle when Hamilton was employed by the companies. Channon said that she begged Hamilton to assist her in accessing the records that Edwards had placed in the vehicle. Chan-non indicated that Hamilton seemed reluctant to provide the keys; Channon said she based her inference of Hamilton’s reluctance on the fact that Hamilton had not offered the keys on her own and the fact that there was a pause during the conversation after Channon begged Hamilton to help her get into the Land Cruiser.

According to Hamilton, on April 7, 2008, Channon called her, upset about Edwards’s placing boxes of his personal and business records in the back of the Land Cruiser. Hamilton said Channon had asked her if she had the keys to the vehicle and that she had told Channon that she would look for the keys. Hamilton said that she found several Toyota keys in a drawer and that she took all the keys to Channon to see if one might open the Land Cruiser. Hamilton testified that she had not returned the keys to the Land Cruiser after her separation from the companies because no one had ever asked her to do so. Hamilton said that one of the keys opened the Land Cruiser. According to Hamilton and Channon, Hamilton did not approach the Land Cruiser at any time and Hamilton did not assist Channon in removing any boxes from the vehicle. In fact, Hamilton and Channon both testified that Hamilton left soon after Channon was able to open the Land Cruiser.

Jones said that he was informed by Edwards that the box of company documents was taken from the vehicle on April 7, 2008, when Channon removed Edwards’s personal and business records from the vehicle. According to Jones and the companies, Hamilton’s actions in providing the keys to the Land Cruiser and assisting in the removal of the confidential documents were a breach of her confidentiality agreement, which required her to keep confidential “all information identified as secret or confidential,” any information pertaining to the business operations of the companies or their financial affairs, and any other information that “from the circumstances ought in good faith and good conscience to be treated as confidential.” Jones and the companies also accused Hamilton of disclosing the confidential information contained in the documents she had allegedly removed from the Land Cruiser. Jones and the companies further alleged in the complaint that Hamilton made disparaging remarks about Jones and the companies, which, they asserted, further breached the prohibition on making disparaging statements contained in the November 2007 settlement agreement.

The trial court’s summary-judgment order did not state the specific basis for the judgment. However, in her motion for a summary judgment, Hamilton made several arguments regarding the claims asserted by Jones and the companies. Hamilton specifically argued that she could not have breached the confidentiality agreement because there was no disclosure, the information was not confidential, and the information had not been maintained as confidential. She further argued that Jones’s failure to take appropriate measures to ensure the confidentiality of the alleged trade secrets prevented him and the companies from succeeding on their claim under the ATSA. Thirdly, Hamilton argued that Jones and the companies could not establish substantial evidence of damages, thus preventing their establishment of the breach-of-contract claim, the breach-of-fiduciary-relationship claim, or the ATSA claim. Hamilton also challenged the lack of proof that she had any knowledge that the vehicle contained a box of allegedly confidential documents and challenged the evidence that she had made any disparaging comments about Jones and the companies on the ground that the only proof Jones and the companies had provided of such remarks was hearsay. Finally, Hamilton argued in her motion that the evidence did not establish an invasion-of-privacy claim because, she asserted, there was no evidence indicating that she had intentionally intruded upon Jones and the companies’ seclusion, that Jones and the companies had experienced sufficient “suffering, shame, or humiliation” to rise to an actionable level, or that Hamilton had disseminated any information to the public.

On appeal, Jones and the companies argue that the documents in the box did, in fact, contain trade secrets under Alabama law, that they presented sufficient evidence that they suffered damage as a result of Hamilton’s actions, and that they presented substantial evidence of their invasion-of-privacy claim. After considering the legal arguments of the parties and reviewing the evidence submitted by the parties in support of and in opposition to the motion for a summary judgment, we conclude that Jones and the companies failed to present substantial evidence supporting their claims of invasion of privacy and their claim under the ATSA against Hamilton. We conclude, however, that Jones and the companies did present substantial evidence pertinent to their breach-of-contract and breach-of-fiduciary-duty claims and, therefore, that the summary judgment, insofar as it relates to those claims, should be reversed.

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

On appeal, Jones and the companies argue that the documents contained in the box allegedly removed from the Land Cruiser contained trade secrets as defined by the ATSA. The ATSA defines a trade secret as information that:

“a. Is used or intended for use in a ' trade or business;
“b. Is included or embodied in a formula, pattern, compilation, computer software, drawing, device, method, technique, or process;
“c. Is not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret;
“d. Cannot be readily ascertained or derived from publicly available information;
“e. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and
“f. Has significant economic value.”

§ 8-27-2(1). As explained above, Jones testified that the box contained quarterly tax information, company financial statements, contracts between the companies and other companies, and insurance policies. According to Jones, the terms of the contracts were not known in the industry and the disclosure of those terms could be used to the detriment of the companies. Jones did not explain exactly how the quarterly tax information or the insurance policies contained confidential information. Hamilton argued to the trial court that the information contained in the documents in the box could not be considered trade secrets under the ATSA because Jones had not taken reasonable efforts to maintain the secrecy of the information, as required by § 8-27-2(l)e.

Jones and the companies were required to present substantial evidence indicating that they had taken reasonable steps to maintain the secrecy of the information contained in the documents in the box in order to prevail against Hamilton’s motion for a summary judgment on the ATSA claim. See Allied Supply Co. v. Brown, 585 So.2d 33, 36 (Ala.1991). Hamilton points out that the documents were not marked confidential, were in an unmarked cardboard box, and were left in a vehicle to which other employees of the companies had access. In Brown, the plaintiff company pursued a claim under the ATSA against former employees for allegedly misappropriating customer and vendor lists. Brown, 585 So.2d at 36. The supreme court determined that the lists did not qualify as trade secrets under the ATSA because the company had not taken reasonable steps to ensure their secrecy. Id. Specifically, the supreme court noted that at least 10 employees had access to the lists, that the lists were not marked as “confidential,” and that the lists were taken home by employees. Id.

Although the testimony in the present case does not indicate that any other employees had actually accessed the Land Cruiser or the documents contained in the missing box, the documents were left in a vehicle to which other employees potentially had access. Jones and the companies make much of the fact that Jones had instructed Edwards to lock the Land Cruiser as indicia of Jones’s desire to maintain the confidentiality of the documents. However, we are not convinced that leaving allegedly confidential and sensitive documents in a cardboard box in a company vehicle for over one week (and potentially for two weeks while Jones was out of the country) amounts to a reasonable step to ensure the secrecy of the information contained therein. The documents were left vulnerable to whomever chose to enter or to drive the vehicle, whose keys were left on a peg or in the front of one of the companies’ offices when the vehicle was not being driven by Edwards. Thus, we cannot conclude that the information contained in the documents were trade secrets under the ATSA; accordingly, we affirm the summary judgment insofar as it pertains to the ATSA claim against Hamilton.

We turn next to the breach-of-contract claim against Hamilton based on the confidentiality agreement contained in the November 2007 settlement agreement. Jones and the companies maintain that Hamilton breached the agreement either by providing Channon with access to the Land Cruiser or by personally assisting in the removal of the box of documents from the Land Cruiser. Jones and the companies also allege that Hamilton breached a portion of the November 2007 settlement agreement by making disparaging comments about Jones and the companies. Jones and the companies allege that Hamilton told Channon that Jones and the companies did not properly pay taxes. Jones also indicated in his testimony that Hamilton had shared other, unspecified information with Channon, prompting Channon to sue Jones. A review of the deposition excerpts presented by the parties indicates, however, that Jones and the companies have no admissible proof that Hamilton made any disparaging comments about Jones or the companies.

In order to survive summary judgment on the breach-of-contract claim, Jones and the companies were required to prove (1) the existence of a contract, (2) their performance under that contract, (3) Hamilton’s failure to perform that contract, and (4) damages resulting from Hamilton’s failure to perform the contract. See Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995). To support the breach-of-contract claim based on allegedly disparaging statements made by Hamilton about Jones or the companies, Jones testified that, according to Edwards, Channon had said that Hamilton had told Channon that the companies and Jones had not properly paid taxes. Jones and the companies presented mere speculation that Hamilton must have shared certain other information with Channon. However, as noted above, Jones and the companies did not specify any disparaging information that Hamilton allegedly imparted other than the alleged statement regarding improper payment of taxes imputed to her by Edwards.

Regarding the specific allegation that Hamilton told Channon that Jones and the companies did not properly pay taxes, we agree with Hamilton that the evidence Jones and the companies offered is hearsay. Jones testified that Edwards told him that Channon had told Edwards that Hamilton had told Channon that Jones and the companies had not paid taxes. Although a statement made by Hamilton to a witness and repeated by that same witness would not be hearsay because of the exclusion of statements made by a party-opponent from the definition of hearsay, Rule 801(d)(2), Ala. R. Evid., Jones’s testimony was based on a statement made to him by Edwards that Channon had reported that Hamilton had made the alleged statement regarding taxes to Channon. Edwards’s statement is an out-of-court statement offered to prove the truth of matter asserted — that Hamilton made a statement regarding taxes to Channon — and, thus, it is hearsay. Rule 801(c), Ala. R. Evid. In fact, Edwards’s statement is based on an out-of-court statement by Channon, and, thus, Edwards’s statement is double hearsay. Thus, we cannot conclude that Jones and the companies presented substantial evidence indicating that Hamilton breached the confidentiality agreement by making disparaging statements about Jones or the companies.

As noted above, Jones and the companies also base their breach-of-contract claim against Hamilton on her having provided the key to the Land Cruiser to Channon and on her allegedly having assisted Channon in removing the box of documents from the vehicle. In her motion for a summary judgment, Hamilton based a large portion of her argument that she was entitled to a summary judgment on the breach-of-contract claim on the assertion that Jones and the companies had not provided substantial evidence of damages suffered as a result of the breach. Hamilton also argued in her summary-judgment motion that the information contained in the box of documents was not confidential because it was not treated as confidential information. However, Hamilton’s arguments are flawed and do not support the summary judgment in her favor.

First, the confidentiality agreement required that Hamilton keep confidential not only all information identified as confidential, but also all information related to the business, operations, or financial affairs of the companies and any other matters that, in good conscience, should be kept confidential. Thus, it matters little whether the information was identified as confidential or treated as confidential, provided it fits under one of the other categories of information described in the confidentiality agreement. Although we agree with Hamilton that the information contained in the documents in the box did not qualify as trade secrets under the ATSA, the confidentiality agreement, by its terms, does not limit Hamilton’s duty of confidentiality to only that information that could be considered a trade secret under Alabama law. The financial records and contracts appear to fit within the definition of information relatéd to the business, operations, or financial affairs of the companies; as such, that information was covered by the confi-déntiality agreement, and Hamilton was required not to “disclose[] to others or make available, directly or indirectly,” that information.

Hamilton’s argument that Jones and the companies’ failure to articulate actual damages to support their breach-of-contract claim is fatal to that claim is also insufficient to. warrant a summary judgment in her favor. Alabama law provides for nominal damages if a breach of contract is proven, even if a breach-of-contract plaintiff cannot prove actual damages. Knox Kershaw, Inc. v. Kershaw, 552 So.2d 126, 128 (Ala.1989) (“It is well settled, however, that once a breach of contract has been established, as it was in this case, the nonbreaching party is entitled to nominal damages even if there was a failure of proof regarding actual damages.”); see also James S. Kemper & Co. Southeast, Inc. v. Cox & Assocs., Inc., 434 So.2d 1380, 1385 (Ala.1983) (“When the evidence establishes a breach, even if only technical, there is nothing discretionary about the award of nominal damages.”). Thus, even if Jones and the companies failed to present substantial evidence of actual damages, Hamilton would not be entitled to a summary judgment on the breach-of-contract claim on that ground.

Hamilton argued in the trial court that by failing to give a “ballpark judgment” of the monetary amount of damages they intended to claim, Jones and the companies failed to meet their burden to provide substantial evidence of damages. We disagree. Jones testified that, as a result of Hamilton’s breach, he has had to have financial records reconstructed and that his outside accountant, Russell Stone, would be billing him for the time and work it took to do so. Jones stated that they had not finished reconstructing all the documents and that Stone had not provided him with an amount. This evidence is sufficient evidence to establish the existence of damages as a result of the alleged breach of the confidentiality agreement. We therefore reverse the summary judgment as it pertains to the breach-of-contract claim insofar as it was based upon Hamilton’s breach of the confidentiality agreement by disclosing or making available the companies’ business, operations, or financial information.

Hamilton also premised her summary-judgment motion regarding the breach-of-fiduciary-duty claim largely on the failure of Jones and the companies to produce evidence of damages resulting from her alleged breach of duty. “A claim alleging breach of fiduciary duty sounds in tort, Brooks v. Hill, 717 So.2d 759, 764 (Ala.1998), and ‘[a] necessary element to be proven in an action alleging breach of duty is damages.’ Williams v. Citizens Nat’l Bank of Shawmut, 570 So.2d 635, 638 (Ala.1990).” Hensley v. Poole, 910 So.2d 96, 106 (Ala.2005). The same evidence of damages discussed above also supports Jones and the companies’ breach-of-fiduciary-duty claim. Thus, Jones and the companies presented sufficient evidence of damages to overcome Hamilton’s motion for a summary judgment insofar as she argued that Jones and the companies could not prove the essential element of damages to establish their breach-of-fiduciary-duty claim. We therefore reverse the summary judgment insofar as it pertains to the breach-of-fidueia-ry-duty claim.

Finally, we consider whether the trial court properly entered a summary judgment on the invasion-of-privacy claim asserted against Hamilton by Jones and the companies. The parties agree that the invasion-of-privacy claim is premised both on the intrusion-upon-seclusion and the giving-publieity-to-private-infor-mation wrongs of the tort of invasion of privacy. In her motion for a summary judgment, Hamilton argued that Jones and the companies had not presented evidence indicating that she had intentionally intruded on their seclusion. See S.B. v. Saint James School, 959 So.2d 72, 90 (Ala.2006). She further argued that, even assuming Hamilton did communicate the allegedly confidential information concerning Jones or the companies to Channon, Jones and the companies could not maintain the cause of action because “communicating [information] to only one person or a small group of persons” is not an invasion of privacy. See Johnston v. Fuller, 706 So.2d 700, 703 (Ala.1997).

We agree that Jones and the companies have presented no evidence warranting a determination that Hamilton intentionally intruded into their seclusion. As explained by our supreme court in Johnston:

“Comment c to § 652B [of the Restatement (Second) of Torts ] states in part: ‘The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.’ The wrongful intrusion may be by physical intrusion into a place where the plaintiff has secluded himself, by discovering the plaintiffs private affairs through wiretapping or eavesdropping, or by some investigation into the plaintiffs private concerns, such as opening private mail or examining a private bank account. Restatement (Second) of Torts § 652B cmt. b; see Vernars v. Young, 539 F.2d 966 (3d Cir.1976) (holding that invasion of privacy occurred when mail addressed to plaintiff was opened by defendant without plaintiffs consent); see generally, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 117, at 854-55 (5th ed.1984); 62 Am.Jur.2d Privacy §§ 51-57 (1990). Further, if the means of gathering the information are excessively objectionable and improper, a wrongful intrusion may occur. See Hogin v. Cottingham, 533 So.2d 525 (Ala.1988) (wrongful intrusion occurs when there has been abrupt, offensive, and objectionable prying into information that is entitled to be private).”

Johnston, 706 So.2d at 702.

In his deposition, Jones admitted that he “didn’t know” how Hamilton could have known that the box of documents was in the Land Cruiser; thus, Jones has admitted having no evidence indicating that Hamilton would have known to look in the Land Cruiser for the box of documents. His conclusory testimony that the fact that Hamilton admitted that she gave Channon the key to the Land Cruiser was “concrete proof ... indicating] that she had something to do with [the] missing records” is not evidence that Hamilton intentionally provided entry into the Land Cruiser to locate the box of documents. Furthermore, Jones and the companies did not present evidence indicating that Hamilton ever took possession of the box containing the documents. All the testimony presented in support of and in opposition to the motion for a summary judgment indicated that Hamilton never approached the Land Cruiser and that she left without assisting Channon in removing any boxes from the vehicle. None of the evidence amounts to substantial evidence indicating that Hamilton intentionally intruded into Jones or the companies’ seclusion to pry into their confidential affairs. See Johnston, 706 So.2d at 702 (affirming a summary judgment in favor of the defendants on an invasion-of-privacy/wrongful-intrusion claim because the plaintiff failed to show, among other things, that the defendants entered his home and searched through his private papers). Thus, we affirm the summary judgment entered on the invasion-of-privacy claim insofar as that claim relates to the allegation that Hamilton wrongfully intruded into Jones’s and the companies’ seclusion.

Likewise, the trial court properly entered the summary judgment on the publicity prong of the invasion-of-privacy claim asserted by Jones and the companies. As noted above, even assuming Hamilton acquired possession or knowledge of the allegedly confidential information contained in the box of documents, any dissemination of that information to one or a few persons would not amount to an invasion of the right to privacy. Johnston, 706 So.2d at 703.

“The comments to § 652D describe the key element of this tort, ‘publicity,’ as follows:
“ ‘ “Publicity,” as it is used in this Section, differs from “publication,” as that term is used ... in connection with liability for defamation. “Publication,” in that sense, is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches or is sure to reach, the public.
“ ‘Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons’
“Restatement (Second) of Torts § 652D cmt. a (1977) (emphasis added).”

Johnston, 706 So.2d at 703. As noted above, Jones either relied on double hearsay or made speculative comments regarding Hamilton’s alleged disparaging remarks, like stating that he had “gleaned” that Hamilton had given Channon information or that he had heard that Hamilton had discussed certain information with Channon. Even if it were not either speculation or hearsay, Jones’s testimony regarding Hamilton’s supposed relating of confidential information would indicate that Hamilton communicated information to Channon alone. Thus, Hamilton’s alleged actions could not form the basis of recovery under the publicity prong of the invasion of the right to privacy and the trial court’s summary judgment on that portion of the invasion-of-privacy claim is affirmed.

As explained above, we reverse the summary judgment entered in favor of Hamilton on Jones and the companies’ claims of breach of contract and breach of fiduciary duty. We affirm the summary judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . The entire text of the confidentiality agreement is as follows:
      "Hamilton and Jones agree that the terms and conditions set forth in this agreement may be disclosed to their respective attorneys and accountants but otherwise shall be held strictly confidential. Hamilton and Jones further agree that each will keep in strictest confidence at all times, (i) all information identified as secret or confidential,
      (ii) related in any manner to the business, operations or financial affairs of either CPR or Mid-West or any of them individually, or
      (iii) which from the circumstances ought in good faith and in good conscience to be treated as confidential, related to the business relationship that existed between Hamilton and Jones and shall not disclosed to others or make available, directly or indirectly, such secret or confidential information in any fashion, provided, however, each party may disclose such information to their respective attorneys and, upon inquiry, to any governmental agencies.”

      . The text of the provision prohibiting disparaging statements reads as follows:
      "Because the purpose of this Agreement is to settle amicably any and all disputes or claims among those parties, neither Hamilton nor Jones shall, after execution of this agreement, directly or indirectly, make or cause to be made any statements to any third parties criticizing or disparaging the other party, or commenting on the character, personal or business reputation of the other party or any of the entities in which they hold or have held an ownership interest. Each of Hamilton and Jones further agree not to engage in any act or omission that would be detrimental, financially or otherwise, to the other or any business in which either party has held or holds an equity interest, or that may subject the other [to] public disrespect, scandal or ridicule.”

      . Hamilton also argued in her motion that, in presenting evidence in support of their breach-of-fiduciary-duty claim, Jones and the companies had "ignored the element of knowledge necessary for a cause of action for a violation of the [ATSA].” Because the two claims are distinctly different, we see no need to address whether Hamilton lacked the requisite knowledge to impose liability under the ATSA in the context of the breach-of-fiduciary-duty claim.

      . As our supreme court explained in Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 708 (Ala.1983):
      "It is generally accepted that the invasion of privacy tort consists of four distinct wrongs: 1) the intrusion upon the plaintiff's physical solitude or seclusion; 2) publicity which violates the ordinary decencies; 3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and 4) the appropriation of some element of the plaintiff's personality for a commercial use. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (Ala.1961), citing W. Prosser, Law of Torts, pp. 637-39 (2d ed. 1955).”
      (Footnote omitted.)


author: THOMPSON, Presiding Judge.

text:
    Larry R. BREWSTER v. SOTERRA, LLC.
    2090217.
    Court of Civil Appeals of Alabama.
    June 25, 2010.

      William E. Bright, Jr., Birmingham, for appellant.
    Charles E. Robinson, Jr., of The Robinson Law Firm, P.C., Ashville, for appellee.
   THOMPSON, Presiding Judge.

Larry R. Brewster appeals from the judgment of the St. Clair Circuit Court quieting title to five parcels of property in Soterra, LLC (“Soterra”). For the reasons set forth herein, we affirm the judgment in part and reverse it in part.

Brewster filed an action against Soterra on January 9, 2007, in which he sought to quiet title to five parcels of property in St. Clair County. Brewster asserted that he had taken possession of the five parcels and that he owned those parcels because he was a descendant and heir of certain individuals who had previously owned them. Throughout the record and on appeal, the parties refer to those five parcels as parcel A, parcel B/A, parcel B/B, parcel C/A, and parcel C/B. The relative locations of those parcels are not important to a disposition of this appeal.

The trial court held a bench trial in the action on October 14, 2009. Brewster testified that he was a descendent of the Cochran family through his mother. He testified that his great-great-grandfather was Alex Cochran. He introduced a deed from March 27, 1934, pursuant to which Alex Cochran and his wife, Eliza Cochran, transferred parcel A to Eugene Cochran. Brewster testified that in his review of records at the St. Clair Probate Court, he did not find any deed transferring parcel A from Eugene Cochran. As to parcel B/A, Brewster offered into evidence a deed dated November 6, 1917, pursuant to which Alex, Eliza, and May Cochran conveyed parcel B/A to James Cochran. As to parcel B/B, Brewster offered into evidence a deed dated December 31, 1904, pursuant to which Alex Cochran conveyed parcel B/B to Jacob Cochran. Brewster introduced a later deed, dated June 22, 1927, pursuant to which Alex and Eliza Cochran conveyed a one-half interest in parcel B/B to Neal Cochran. Brewster introduced a deed dated February 15, 1935, pursuant to which Neal Cochran conveyed parcel B/B to James Cochran. As to parcel C/B, Brewster introduced into evidence a deed dated May 27, 1920, pursuant to which the Alabama State Land Company conveyed parcel C/B to Eugene Cochran. Brewster then introduced a deed dated May 26, 1943, pursuant to which Eugene Cochran and his wife, Bernice Cochran, conveyed parcel C/B to Greif Brothers Cooperage Corporation. Beyond the above-described deeds, Brewster did not offer any evidence demonstrating that title to the disputed parcels had descended to him, either through testate or intestate succession.

Brewster testified that he regularly goes to parcel C/A and that he has been doing so since the early 1980s. He testified that he had hunted on some of the other property at issue in the action. He testified that Soterra began developing some of the property at issue in June 2009 but that, before that time, he had not seen any representatives of Soterra on the property. On cross-examination, however, Brewster testified that he had not done anything on parcels A, B/A, and B/B. He stated that he had entered parcels B/A and B/B only for the purpose of reaching the south side of property that he owned. He stated that Soterra had planted trees and harvested timber on parcel C/B.

In spite of the fact that, in his complaint, he sought an order quieting title in him to parcel B/A, Brewster testified that he was not claiming title to that parcel of property. In addition, after Brewster rested his case, the parties and the trial court determined that Soterra was not challenging Brewster’s title to parcel C/A. Thus, the only parcels at issue in the action were parcel A, parcel B/B, and parcel C/B.

John Baker, Soterra’s vice president of property administration, testified that Sot-erra had cut timber on parcels A and C/B and had reforested that area during the mid- to late 1990s. Soterra submitted into evidence numerous invoices relative to its reforestation project of those parcels. Baker testified that in 1991 Soterra granted an easement across parcel C/B to a developer so that the developer could develop a subdivision. Baker testified that the developer had subsequently granted an easement from the subdivision to parcel A and that, as part of that agreement, a gate had been installed limiting access over the easement to that parcel to those individuals and entities permitted by Soterra. Baker testified that in 1992 Soterra conveyed to Alabama Power Company a 30-foot easement across parcel C/B, and Sot-erra entered into evidence the document effecting that conveyance. Baker testified that in 2005 Soterra leased the mineral rights in parcel A to another company.

During Baker’s testimony, Soterra entered into evidence a deed dated October 1, 1975, pursuant to which Greif Brothers Corporation, which had previously been known as Greif Brothers Cooperage Corporation, conveyed a tract of land including parcel A to Soterra, Inc., the predecessor to Soterra. Soterra also entered into evidence a deed dated August 10, 2006, pursuant to which a company known as Headwaters Investment Corporation conveyed parcels B/A and B/B to Soterra. Soterra offered into evidence a typewritten version of the May 26, 1943, deed pursuant to which Eugene and Bernice Cochran conveyed parcel C/B to Greif Brothers Cooperage Corporation. Soterra also entered into evidence a deed dated October 1,1975, pursuant to which Greif Brothers Corporation conveyed parcel C/B to Soterra, Inc.

Baker testified that Soterra leased certain parcels to hunting clubs. Soterra offered into evidence several lease agreements, the earliest dating from 1999, by which Soterra leased to two hunting clubs certain parcels of land, including parcels A and C/B, for hunting.

On October 28, 2009, the trial court entered a final judgment in favor of Soterra. It found that Brewster was not in peaceable possession of the five parcels and, as a result, that he could not maintain an action to quiet title to those parcels. The trial court found that Soterra was in peaceable possession of, and had proven that it had superior title, to the parcels. Thus, the trial court quieted title to the five parcels in Soterra. Brewster filed a timely appeal to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The standard by which this court reviews quiet-title actions that are heard ore tenus is the same as the review applied in other types of ore tenus actions. Denson v. Gibson, 392 So.2d 523, 524 (Ala.1980).

“In reviewing the judgment of a trial court, this Court will not presume error and will affirm the trial court’s judgment if it is supported by any valid legal ground. Turner v. Clutts, 565 So.2d 92, 94 (Ala.1990); Odom v. Blackburn, 559 So.2d 1080 (Ala.1990). Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So.2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981). The judgment of a trial court based on ore tenus evidence is presumed correct, and its findings ‘will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence.’ McCoy v. McCoy, 549 So.2d 53, 57 (Ala.1989). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.”

Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992).

Section 6-6-540, Ala.Code 1975, provides the statutory basis for an action seeking to quiet title:

“When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, in his own right or as personal representative or guardian, and his title thereto, or any part thereof, is denied or disputed or any other person claims or is reputed to own the same, any part thereof, or any interest therein or to hold any lien or encumbrance thereon and no action is pending to enforce or test the validity of such title, claim, or encumbrance, such person or his personal representative or guardian, so in possession, may commence an action to settle the title to such lands and to clear up all doubts or disputes concerning the same.”

Thus,

“[t]he right to quiet title conferred by our statute is in any person: (1) When he is in peaceable possession of the land, whether actual or constructive, claiming to own the same in his own right, or in a representative capacity; (2) when his claim is denied or disputed or when any other person claims or is reputed to own the same or any part thereof; and (3) no suit is pending to enforce or test the validity of such title or claim.”

Gill v. More, 200 Ala. 511, 517, 76 So. 453, 459 (1917).

On appeal, Brewster contends that the trial court erred when it found that he was not in peaceable possession of the parcels at issue. He argues that he had constructive possession of those parcels because, he argues, he has title to them. We disagree.

Constructive possession is found when one has legal title to property but is not in actual possession of that property. Hinds v. Slack, 293 Ala. 25, 28, 299 So.2d 717, 719 (1974). Our review of the evidence fails to disclose any evidence indicating that Brewster owned the parcels in dispute as a result of his relationship to the Cochran family. Brewster proved that members of his family from several generations back on his mother’s side had owned the disputed parcels; he did not put on any evidence, however, that the property had descended to him, either through testate or intestate succession. That his remote ancestors once owned certain property is not sufficient evidence of his current ownership of that property. See Mt. Gilead Church Cemetery v. Woodham, 453 So.2d 362, 365 (Ala.1984) (holding that the mere fact that an individual testifies that his ancestor previously owned certain property is not sufficient to prove the individual’s present ownership of land in the absence of evidence regarding the heirs of the ancestor). Because Brewster did not prove that he had constructive possession of the parcels at issue, his argument does not provide a basis on which to reverse the trial court’s judgment.

Brewster next contends that Soter-ra’s evidentiary showing at trial was insufficient to defeat his claim to the property at issue. He argues that Soterra did not trace its title to the disputed parcels beyond the companies that had transferred those parcels to it. Brewster also appears to argue that Soterra did not sufficiently demonstrate that it had possession of the disputed parcels.

As previously noted, Brewster failed to demonstrate valid title to the disputed parcels. Although he takes issue with the fact that Soterra did not trace its line of title beyond its immediate transferors, Brewster cites no legal authority standing for the proposition that a claimant of real property must demonstrate that the entity transferring the disputed property to it had valid title to the property, especially when, as in this case, the other claimant has failed to present any evidence showing that he or she had good title to the property.

Soterra, in addition to demonstrating valid title in the disputed parcels, was required to prove that it was in peaceable possession of those parcels. Testimony and documentary evidence at trial indicated that Soterra had cut timber on and had reforested parcels A and C/B during the mid- to late 1990s, had granted multiple easements across parcel C/B, had received an easement providing it controlled access to parcel A, had leased the mineral rights to parcel A to another company, and had leased parcels A and C/B to hunting clubs. This was sufficient evidence of Soterra’s actual possession of parcels A and C/B. See Mt. Gilead Church Cemetery, 453 So.2d at 365 (“Both peaceable possession and claim of title are indicated by the evidence that the Powells and Woodhams appropriated the lumber from the storm-damaged church and the evidence that the Woodhams cut timber from the land over the years, including large-scale operations and plantings shortly before the suit was broughtThe evidence also demonstrated that Soterra constructively possessed parcel B/B by virtue of its title to that property, given that Brewster presented no evidence indicating that he was in possession of that parcel. See Hinds, 293 Ala. at 28, 299 So.2d at 719 (Title to property constitutes constructive possession of that property when no other entity is in actual possession thereof.).

Thus, with respect to parcels A, B/B, and C/B, the evidence of record sufficiently supports the trial court’s finding that Sot-erra had proven its possession of the disputed parcels. Brewster’s testimony that he had hunted on some of the disputed property did not undermine the trial court’s finding because “[i]solated acts by [Brewster], indicating possession but not amounting to interference with [Soterra’s] peaceable possession, do not defeat [Soter-ra’s] claim.” Mt. Gilead Church Cemetery, 453 So.2d at 365 (indicating that occasional burials in cemetery on disputed property were not sufficient to interfere with the plaintiffs peaceable possession of the disputed property). Thus, that portion of the trial court’s judgment quieting title in Soterra with regard to parcels A, B/B, and C/B is due to be affirmed.

The trial court also quieted title to parcel C/A in Soterra. Soterra indicated at trial and reiterates on appeal that it does not dispute Brewster’s claim to parcel C/A. Because Soterra did not claim title to parcel C/A, it did not put on any evidence demonstrating either title to or possession of that parcel. As a result, that portion of the trial court’s judgment quieting title to parcel C/A in Soterra is not supported by the evidence and is due to be reversed.

Based on the foregoing, we reverse the trial court’s judgment to the extent that it quiets title of parcel C/A in Soterra, we affirm the balance of the judgment, and we remand the cause to the trial court for the entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Soterra had filed a motion for a summary judgment and a brief in support of that motion. To its brief, Soterra had attached a number of deeds and other documents relative to the parcels at issue. The trial court denied Soterra’s motion. Although the trial court indicated that it would treat Soterra's summary-judgment brief as a trial brief, the record does not reflect that the deeds and other documents attached to the brief were entered as evidence at trial.

      . The record does not reflect that Jacob Cochran had transferred parcel B/B back to Alex Cochran and Eliza Cochran.

      . The record does not reflect that the other half interest to parcel B/B had been transferred to Neal Cochran.

      . The fact that the trial court erred when it quieted title to parcel C/A in Soterra does not mean that it also erred in failing to quiet title to that parcel in Brewster. One of the elements of a quiet-title action is that the plaintiff’s title is challenged in some manner. See Gill, 200 Ala. at 517, 76 So. at 459. Because Soterra admitted at trial that it did not challenge Brewster’s ownership of that parcel, Brewster was not entitled to the remedy of having title in parcel C/A quieted in him.

      . Brewster has not challenged the judgment quieting title to parcel B/A in Soterra on the basis that that remedy was unavailable to Soterra because he repudiated his claim to title to that parcel.


author: WINDOM, Judge. WISE, Presiding Judge, WELCH, Judge,

text:
    Jerome THEODOROU v. STATE of Alabama.
    CR-07-0615.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 2009.
    Rehearing Denied Dec. 11, 2009.

      Billy C. Burney II, Decatur, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

KELLUM and MAIN, JJ., concur.

WISE, P.J., and WELCH, J., dissent, with opinions.

WISE, Presiding Judge,

dissenting.

I believe the trial court erred in its calculation of the amount of restitution due from Theodorou. For example, the court awarded $6,616.58 in lost revenue for the days when the business could not operate without the equipment. Also, it appears that the court awarded $4,572.50 for some type of payments the business had previously made on the equipment. The case-law regarding the amount of restitution a victim may recover as a result of a defendant’s criminal acts is ambiguous, and the application of that law is particularly difficult in cases involving receiving stolen property. Therefore, I urge the Alabama Supreme Court to clarify the easelaw governing restitution. Nevertheless, I do not believe that all of the losses Bussman Construction Company suffered were attributable to Theodorou’s criminal act of receiving the stolen property. Accordingly, I respectfully dissent.

WELCH, J., concurs.

WELCH, Judge,

dissenting.

I respectfully dissent, and I join Presiding Judge Wise’s dissent. I write specially to point out that Jerome Theodorou was ordered to pay restitution calculated from the date that the victim’s property was stolen in September 2004. However, Theodorou was not charged with theft of property; he was charged with and found guilty of receiving stolen property. The evidence reflected that Theodorou did not take possession of the victims property until January 20, 2005. Therefore, I believe that the monetary damages incurred by the victim between the date of the theft in September 2004 and Theodorou’s receipt of the stolen property on January 20, 2005, were improperly attributed to Theo-dorou and should not have been assessed against Theodorou as restitution.