author: GRIFFIS, J.,

text:
    John CHMELICEK, Appellant v. Dianna CHMELICEK, Appellee.
    No. 2008-CA-01736-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2010.
    Rehearing Denied Jan. 18, 2011.

      Renee M. Porter, attorney for appellant.
    Samuel E. Farris, attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. John Chmelicek appeals the financial obligations the chancellor imposed upon him in the judgment of divorce. John argues that the chancellor was in error in the equitable distribution of property, the award of lump-sum and periodic alimony, and in the award of attorney’s fees. We find reversible error and remand.

FACTS

¶ 2. John and Dianna Chmelicek were married in Montreal, Canada, on February 14, 1987. On July 18, 2007, Dianna filed a complaint for divorce in the Chancery Court of Forrest County, Mississippi. John and Dianna were married for more than twenty years.

¶ 8. They had two children. Katie was born August 7, 1989, and at the time of the divorce, she was in college. Kristen was born May 20, 1991, and at the time of the divorce, she was in high school.

¶ 4. John was trained in Canada as a medical doctor. In 1992, John and Dianna moved from Canada to Hattiesburg where John was employed by the Hattiesburg Clinic and Immediate Care. Dianna was primarily a housewife and held a few jobs in the beginning of the marriage. In 2006, Dianna began a small photography business.

¶ 5. The trial of this matter occurred on March 24, 26, and May 28, 2008. Prior to the trial, the parties stipulated that a divorce should be granted to Dianna based on the ground of John’s adultery; the parties would have joint legal custody of the children; Dianna would have physical custody of the children; and John would have visitation with the children. The issues that remained for the chancellor to decide were the equitable division of property, alimony, child support, and attorney’s fees.

¶ 6. On July 2, 2008, the chancellor entered a judgment of divorce. Dianna was granted a divorce based on John’s uncon-doned adultery. The judgment held:

a. Dianna was awarded child support in the amount of $4,400 per month.
b. John was to maintain his current life-insurance policies, with coverage of $350,000, and name the children as beneficiaries.
c. John was awarded ownership of the marital home, and Dianna was “given credit for one half of the existing equity, or $8,500.”
d. The parties’ liabilities included a Canadian tax lien in the amount of $221,820.97; $150,000 owed to John’s father; $86,685 in credit-card debt; $115,611 owed on vehicle financing; and a $481,000 home mortgage. The total liability was $1,054,296, “a figure that far exceeds the assets of the parties.” Dianna was responsible for the vehicle financing on her car and the cars driven by the children. John was responsible for all other liabilities.
e. John “is capable and does generate a net income of approximately ... $20,000 monthly.” Dianna “should be able to generate an income of approximately $2,000 or more a month.”
f. John had a 401 (k) retirement account with Fidelity Investments. As of March 25, 2008, the first day of trial, the account had a balance of $303,244.43, “which shows that he withdrew $123,930.94” during the parties’ separation. Thus, the chancellor considered the marital estate to include a 401 (k) with a balance of $427,175.37 — the total balance before John’s withdrawal. The chancellor ordered the funds be divided equally. Dianna was to receive “one half plus $8,500 representing her one half of the equity in the marital home.” Dianna was also awarded “lump sum alimony payment of $61,965.47, representing one half of the 401(k) withdrawn by [John] in 2007, said [sum] to be due and payable in 36 months from the date of this judgment.”
g. Each party is to keep the household goods and personalty currently in their possession.
h. The chancellor awarded Dianna $6,000 per month in alimony and held:
“Finding that [Dianna] has some income generating ability developed during the marriage, the Court is left with another finding that [Dianna] will be unable to live financially [as] her life has developed with [John] without some financial aid in the form of alimony being afforded to her. Hubbard v. Hubbard, 656 So.2d 124 (Miss.1995). Exhibit 2 reflects the monthly needs of [Dianna], sans credit cards, to be $7,035.70. With her ability to generate some income, [Dianna] is awarded periodic alimony of $6,000.00 monthly, to begin July 1, 2008 to be paid through the office of the Chancery Clerk of Lamar County, Mississippi. The Court is cognizant of the actions of [John] in wasting potential marital assets during the marriage, but finds these are largely present now in debt which he must pay. Debt, as shown by the exhibits, which includes the lifestyle of the parties in acquiring real and personal property, travel and activities of both [Dianna], [John] and their children, in search of family harmony over the years of their marriage. In making this award of periodic alimony the Court has considered the incomes, ages and expenses of the parties, their earning capacities, needs, assets of each, length of marriage, standard of living, tax consequences, fault and misconduct of [John] and dissipation of assets. Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993).”
i. Each party shall contribute to the college expenses, not covered by scholarships, with Dianna paying 12.5% and John paying 87.5%.
j. Dianna was awarded attorney’s fees in the amount of $20,000.

¶ 7. John and Dianna had only a few assets. The marital home was valued at $500,000 by John and $520,000 by Dianna. The chancellor valued it at $500,000 and determined the couple had $19,000 of equity in the house. They owned four cars, including one for each child. While the chancellor determined that $115,611 was owed on the cars, he also determined that there was little if any equity in the cars. It is from this judgment that John appeals.

¶ 8. After the appeal was filed, Dianna filed a Request to Supplement the Record. Dianna asked the appellate court to take judicial notice of John’s intervening bankruptcy filing in the United States Bankruptcy Court for the Southern District of Mississippi. The Request included copies of bankruptcy schedules and decrees. From this information, it appears that John filed for bankruptcy on November 6, 2008; the bankruptcy was converted from a Chapter 13 to a Chapter 7 on March 19, 2009; and the final bankruptcy decree was entered on August 7, 2009. John indicated his assets were valued at $862,483, and his liabilities totaled $1,493,402. The schedules also indicated a change in John’s address to Edmonton, Alberta, Canada. John’s debts listed in the bankruptcy schedules included debts to Dianna totaling $107,966.30, John Chmelicek totaling $179,000, Citi Mortgage (home mortgage) totaling $488,059, the loans on all vehicles, and what appears to be all of the credit-card debts.

¶ 9. By order dated October 27, 2009, Supreme Court Justice James W. Kitchens entered an order that granted Dianna’s Request to Supplement the Record. Accordingly, we consider these documents as part of the record.

STANDARD OF REVIEW

¶ 10. The Mississippi Supreme Court in Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009) recently provided a detailed statement of the appropriate standard of review, stating:

“ ‘A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.’ ” Sanderson v. Sanderson, 824 So.2d 623, 625 (Miss.2002) (quoting Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999)). “However, the Court will not hesitate to reverse if it finds the chancellor’s decision is manifestly wrong, or that the court applied an erroneous legal standard.” Owen v. Owen, 928 So.2d 156, 160 (Miss.2006). A chancellor’s conclusions of law are reviewed de novo. Chesney v. Chesney, 910 So.2d 1057, 1060 (Miss.2005) (citing Southerland v. Southerland, 875 So.2d 204, 206 (Miss.2004)). The distribution of marital assets in a divorce will be affirmed if “ ‘it is supported by substantial credible evidence.’ ” Bowen v. Bowen, 982 So.2d 385, 393-394 (Miss.2008) (quoting Owen, 928 So.2d at 160). A chancellor is required to make findings of fact regarding all applicable Ferguson factors. See Kilpatrick v. Kilpatrick, 732 So.2d 876, 881 (Miss.1999); Ferguson, 639 So.2d at 928. “[MJarital misconduct is a viable factor entitled to be given weight by the chancellor when the misconduct places a burden on the stability and harmony of the marital and family relationship.” Carrow v. Carrow, 642 So.2d 901, 904-05 (Miss.1994). See also Brabham v. Brabham, 950 So.2d 1098, 1101-02 (Miss.Ct.App.2007). “[A]n equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). “Fairness is the prevailing guideline in marital division.” Ferguson, 639 So.2d at 929.

ANALYSIS

¶ 11. The primary issues in this appeal relate to the division of marital assets and the award of lump-sum and periodic alimony. In Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994), the Mississippi Supreme Court held:

There are some observations which need to be made in regard to division of marital assets. Initially, this Court notes that existing law regarding periodic alimony and child support is not altered. Upon dissolution of a marriage, the chancery court has the discretion to award periodic and/or lump sum alimony, divide real and personal property, including the divesting of title, and may consider awarding future interests to be received by each spouse. Additionally, homemaker contributions are not to be measured by a mechanical formula, but on the contribution to the economic and emotional well-being of the family unit. Some courts have held that equitable distribution of property has as its goal not only a fair division based upon the facts of the case, but also an attempt to finalize the division of assets and conclude the parties’ legal relationship, leaving them each in a self-sufficient state, where the facts and circumstances permit total dissolution.
Property division should be based upon a determination of fair market value of the assets, and these valuations should be the initial step before determining division.... All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Thus, the chancellor may divide marital assets, real and personal, as well as award periodic and/or lump sum alimony, as equity demands. To aid appellate review, findings of fact by the chancellor, together with the legal conclusions drawn from those findings, are required.
In the final analysis, all awards should be considered together to determine that they are equitable and fair.

(Internal citations omitted).

¶ 12. In Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994), the supreme court provided the proper sequence for the chancellor’s determination. First, the chancellor should determine whether the parties’ assets are marital or nonmarital. Id. Second, the marital property should be “equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ nonmarital property.” Id. Then, if the divided assets, when considered with each parties’ nonmarital assets, “will adequately provide for both parties, no more need be done.” Id. If one party has a deficit, “then alimony based on the value of nonmarital assets should be considered.” Id.

¶ 13. This case is quite unusual. The vast majority of marital dissolution cases before this Court deal with the division of property in the traditional sense. The parties want the chancellor to award assets, such as homes, cars, bank accounts, investment accounts, businesses, etc. In this case, there are only a couple of assets. With the exception of the Fidelity 401 (k) and the household personal assets, the remaining assets are worthless or upside down (meaning the value of the asset is less than what is owed). The chancellor considered all of the property as marital. The chancellor divided the 401 (k) equally. The chancellor was then left with a decision about how to divide the tremendous amount of debt and how to divide John’s future earning capacity to provide for the children, his now ex-wife, himself, and to pay the marital debt.

¶ 14. Before we begin our review, we must discuss how we will consider the supplemental record. With permission of the supreme court, Dianna supplemented the record and included John’s subsequent bankruptcy filings. Dianna asked the Court to take judicial notice of John’s bankruptcy. There is no doubt that John’s bankruptcy has had a legal effect on his obligation to pay the marital debt. However, despite the supplementation of the record, neither party has provided this Court with a supplemental brief that attempts to explain the effect of John’s bankruptcy on the issues that are before this Court. Hence, we are unable and unwilling to venture into an appellate review of this case based on this Court’s legal analysis of how the bankruptcy may have changed the obligations or responsibilities of the parties. Instead, our review is limited to the matters considered by the chancellor.

A. Equitable Distribution of Assets

¶ 15. The chancellor determined that all of the parties’ property was marital. Thus, the chancellor had to divide the marital assets equitably according to the Ferguson factors, which are:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928.

¶ 16. The supreme court has held that “[t]he failure to consider all applicable Ferguson factors is error and mandates reversal.” Lowrey, 25 So.3d at 286 (¶ 29). However, the chancellor need not make findings regarding each Ferguson factor but may consider only those factors “applicable” to the property in question. Sproles v. Sproles, 782 So.2d 742, 748 (¶ 25) (Miss.2001) (citing Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)).

f 17. John argues that the chancellor committed error in his consideration of the Ferguson factors. John attempts to analyze the chancellor’s judgment in light of these factors. We have attempted to do likewise.

¶ 18. In Ferguson, the supreme court directed chancellors to evaluate the division of marital assets by certain guidelines and “to support their decisions with findings of fact and conclusions of law for purposes of appellate review.” Ferguson, 639 So.2d at 928. Here, the chancellor’s judgment does not include specific findings of fact or conclusions of law that would indicate that the chancellor considered each of the Ferguson guidelines and how he applied the guidelines to the evidence presented in this case. Instead, the chancellor’s judgment simply announces his division of the marital property and other financial awards.

¶ 19. In Sandlin v. Sandlin, 699 So.2d 1198, 1204 (Miss.1997), the chancellor made the marital property distribution and mentioned the Ferguson guidelines along with a representation that he applied them to the evidence presented. Id. at 1204. The chancellor’s judgment failed to make the requisite findings of fact and conclusions of law. The supreme court held that it “could not evaluate the basis that [the chancellor] used to determine the division of property.” Id. As a result, the supreme court ruled that “the failure to make findings of fact and conclusions of law was manifest error requiring reversal and remand.” Id.

¶ 20. In Kilpatrick v. Kilpatrick, 732 So.2d 876, 881 (¶ 19) (Miss.1999), the supreme court again reversed a chancellor’s judgment for failing to make the required findings of fact and conclusions of law regarding the distribution of the marital estate. The chancellor itemized the actual property division, but he made no conclusions of law to support the division of the marital estate. Id. at 880-82 (¶¶ 14-24). The supreme court reversed and remanded the case for specific findings of fact stating that “[w]ithout findings from the [e]hancellor concerning this income or use of income, we cannot determine if the distribution of property outlined above meets the standards of equitable distribution required by Ferguson.” Id. at 881 (¶19).

¶ 21. Here, the chancellor divided the property. The chancellor’s judgment failed to make any conclusions of law as to how the Ferguson factors were applied to support the division of the marital estate. Thus, based on Sandlin and Kilpatrick, the chancellor’s failure to explain the basis for his decision requires that we find manifest error. Thus, we reverse and remand this case to the chancellor to make specific findings and conclusions of law as to the Ferguson guidelines and the equitable division of property.

B. Periodic Alimony

¶ 22. The chancellor awarded $6,000 per month to Dianna of periodic alimony. In Henderson v. Henderson, 703 So.2d 262, 266 (¶ 21) (Miss.1997), the supreme court reversed an award of alimony and remanded the case for an “on-the-record determination of the economic issues presented as required by Ferguson and Johnson.” Here, the chancellor’s reasoning for the alimony award is quoted in full above. The initial question for this Court to decide is whether the chancellor’s judgment was sufficient for the Court to affirm the award of periodic alimony in light of Henderson, Johnson, and Ferguson, relying simply on a totality of the circumstances. See Godwin v. Godwin, 758 So.2d 384, 387-88 (Miss.1999).

¶ 23. In Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), the supreme court identified the factors “to be considered by the chancellor in arriving at findings and entering judgment for alimony.” The factors are:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Id.

¶ 24. John argues that the chancellor erred because: he used the wrong legal standard by not correctly applying the Armstrong factors; the award was excessive; and Dianna should have been awarded rehabilitative alimony instead of periodic alimony.

¶ 25. We have attempted to review the award of periodic alimony based on a totality of the circumstances. We con-elude that the chancellor’s reasoning does not amount to an on-the record analysis of the relevant Armstrong factors. Indeed, the chancellor’s judgment provides a couple of conclusory statements and says that the chancellor considered the Armstrong factors. There are several of Armstrong factors that required an in-depth analysis.

¶ 26. John was a hard-working and highly compensated medical doctor. Although his annual gross income was in excess of $400,000, John’s income was not sufficient to maintain the family’s extravagant lifestyle. Even if the marriage had continued, John and Dianna would eventually have had to either earn more income, cut back on their spending, or file for bankruptcy. Although John was admittedly at fault for the dissolution of the marriage, the chancellor had an obligation to dissolve the marriage and their financial relationship in a manner that was equitable, fair, and just.

¶27. We cannot affirm the award of periodic alimony where the chancellor has failed to provide an on-the-record analysis of the Armstrong factors. Indeed, this case required the chancellor to explain how he analyzed the alimony award as “just and equitable” in light of both parties’ obligations to pay or otherwise satisfy the tremendous amount of marital debt that resulted from the marriage. Certainly, John’s and Dianna’s lives will change. The chancellor must explain his reasoning as to how, through the judgment of divorce, the marital debts were to be paid or how their lifestyles would be altered in order to satisfy their marital debts. Accordingly, we find that the chancellor’s failure to provide an on-the-record analysis of the Armstrong factors requires that we find manifest error. Thus, we reverse the award of periodic alimony and remand for the chancellor to make specific findings of fact and conclusions of law to support the award of alimony.

C. Lump-Sum Alimony and Attorney’s Fees

¶ 28. John also claims the chancellor committed error in the award of lump-sum alimony and attorney’s fees.

¶ 29. In Lauro v. Lauro, 847 So.2d 843, 850 (¶ 17) (Miss.2003), the Mississippi Supreme Court determined that since the case was remanded for further consideration of equitable division, the chancellor should be instructed “to revisit the awards of alimony and child support after he has properly classified and divided the marital assets.” Thus, since this case has been remanded for further consideration of equitable division of assets and periodic alimony, on remand the chancellor will have all the tools of marital dissolution available: equitable division, lump-sum alimony, and periodic alimony. Likewise, the chancellor may revisit the award of attorney’s fees.

D. Remaining Issues

¶ 30. John also raised several additional issues. However, since the judgment is reversed and this case is remanded, the remaining issues are moot and will not be addressed.

¶ 31. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . John also testified that he owned a Harley Davidson motorcycle and a recreational vehicle. However, he stated that both were sold before the trial was completed, and the proceeds from the sale were applied to the outstanding loans.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Frankye UNDERWOOD v. ALABAMA STATE UNIVERSITY and Members of the Board of Trustees of Alabama State University.
    1090518.
    Supreme Court of Alabama.
    June 18, 2010.

      Sabrina L. Comer and Susan Kennedy of Slate Kennedy LLC, Montgomery; and J. Cecil Gardner and Allison Kahalley of The Gardner Law Firm, Mobile, for appellant.
    Kenneth L. Thomas and Frederic A. Bolling, of Thomas, Means, Gillis & Seay, P.C., Montgomery, for appellees.
   WOODALL, Justice.

Frankye Underwood appeals from a judgment entered in favor of Alabama State University (“ASU”); Elton Dean, in his capacity as chair of the Board of Trustees of ASU; and Oscar Crowley, Taylor Hodge, Buford Crutcher, Marvin Wiggins, and Herbert Young, in their capacities as members of the Board of Trustees of ASU. We dismiss ASU as a defendant, and we affirm the trial court’s judgment as to the remaining defendants (hereinafter referred to collectively as “the Board”).

This Court recently stated:

“Article I, § 14, Alabama Constitution of 1901, provides ‘[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.’ ‘This Court has extended the restriction on suits against the State found in § 14 “to the state’s institutions of higher learning” and has held those institutions absolutely immune from suit as agencies of the State.’ Ex parte Troy Univ., 961 So.2d 105, 109 (Ala.2006). Thus, [Jacksonville State] University ‘is an instrumentality of the State of Alabama, and is therefore immune from suit.’ ”

Ex parte Jacksonville State Univ., 40 So.3d 672, 674 (Ala.2009) (quoting Ellison v. Abbott, 337 So.2d 756, 757 (Ala.1976)). ASU, like Jacksonville State University, is an instrumentality of the State of Alabama and is therefore immune from suit. Thus, we must dismiss ASU as a defendant.

Facts and Procedural History

On May 9, 2008, the Board held the second of its three mandatory “regular meetings” scheduled for 2008. At the close of the May 9 meeting, the Board agreed to “recess the meeting until a future date to reconvene at the call of the Chair.” On May 22, 2008, pursuant to § 36-25A-3(2), Ala.Code 1975, a part of the Alabama Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975, the Board posted on the Secretary of State’s Web site a notice that a “regular” meeting of the Board would be held on May 30, 2008. The notice provided a preliminary agenda that included the following items: “(1) Call to Order; (2) Invocation; (3) Adoption of Agenda; (4) Adoption of Minutes; (5) Committee Reports; (6) New Business; and (7) Adjournment.” (Emphasis added.)

Dean testified that Young told him shortly before the May 30 meeting was called to order that he had a resolution to introduce. The agenda handed out at that meeting included an item for “Other Business,” and Dean told Young to wait until the “Other Business” portion of the meeting to present his resolution. Dean testified that, during the part of the meeting at which “Other Business” was discussed, Young presented a resolution proposing that the name of Joe L. Reed, a trustee, be removed from the ASU Acadome, a multipurpose academic and physical-education facility, named the “Joe L. Reed Acadome” (hereinafter referred to as “the resolution”). The resolution passed by a majority vote of the Board members in attendance. Reed’s name was subsequently removed from the Acadome.

On June 20, 2008, Underwood filed a complaint, pursuant to § S6-25A-9(a), Ala. Code 1975, seeking declaratory and in-junctive relief. Underwood alleged (1) that the Board had violated “the [Alabama] Open Meetings Act by failing or refusing to provide proper notice [of the May 30 meeting] as required by law”; and (2) that the Board had “failed or refused to follow their own established policy for conduct of [Board] meetings,” and that “[a]s a result of the defendants’ actions or inac-tions ... [Underwood] is entitled by law to entry of [an] order declaring null and void the contested actions of May 30.” More specifically, she sought to invalidate the resolution.

As required by § 36-25A-9(a), the trial court scheduled a preliminary hearing and allowed the parties to conduct discovery before the hearing. The Board took Un-deiwood’s deposition, and the defendants answered interrogatories propounded by Undeiwood.

At the preliminary hearing, Dean testified that he had prepared the final agenda for the May 30 meeting and that he had no knowledge of the resolution until Young introduced it during that meeting. Dean also testified that it had been the longstanding practice of the Board to close meetings by recessing to reconvene at the call of the chair.

At the healing, Young testified that he drafted the resolution and that he had delivered a rough draft to ASU’s legal counsel. He testified that ASU’s legal counsel returned a clean copy to him either the night befoi-e or the morning of the May 30 meeting. Young testified that he did not discuss the resolution with Dean or with the president of ASU before he introduced the resolution at the May 30 meeting.

On July 29, 2009, the trial court entered a judgment in favor of the Board and ASU. The trial court concluded:

“No evidence has been presented that the Alabama Open Meetings [Act] was violated. Likewise, any failure to abide by the by-laws appears technical in nature and courts are traditionally reluctant to abrogate actions due to failures to abide by by-laws. 59 Am.Jur.2d Parliamentary Law § 4. That is not to say that this Court agrees with the Boax*d’s decision or approves of the way the resolution was handled. The Court’s sense is that the resolution was intended to, and did, catch Dr. Reed unaware. Perhaps unfortunately, Alabama law allows issues not in the formal agenda to be raised and voted upon. However distasteful this tactic may have been in this particular instance, there is no substantial evidence that any laws were broken.”

Underwood appeals.

Issues

Underwood raises two issues to be addressed on appeal: (1) whether the Board violated the Alabama Open Meetings Act, § 36-25A-1 et seq., Ala.Code 1975 (“the Act”), by failing to abide by the Board’s adopted rales of parliamentary procedure in holding the May 30 meeting; and (2) whether the Board violated the Act by voting on a resolution that was not on the preliminary agenda published with the notice of that meeting.

Standard of Review

“ ‘ “In reviewing a trial court’s findings of fact based on ore tenus evidence, this Court presumes those findings to be correct.” Hensley v. Poole, 910 So.2d 96, 100 (Ala.2005). “Nevertheless, this principle is not applicable where the evidence is undisputed, or where the material facts are established by the undisputed evidence.” Salter v. Hamiter, 887 So.2d 230, 234 (Ala.2004).... Furthermore, “on appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.” ’ ”

LPP Mortgage, Ltd. v. Boutwell, 36 So.3d 497, 500 (Ala.2009) (quoting Lucky Jacks Entm’t Ctr., LLC v. Jopat Bldg. Corp., 32 So.3d 565, 568 (Ala.2009), (quoting in turn Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997)).

Analysis

Underwood first argues that the Board “violated the ... Act by failing to abide by [its] adopted parliamentary rules.” Underwood’s brief, at 11. Section 36-25A-5(a), Ala.Code 1975, provides: “Unless otherwise provided by law, meetings shall be conducted pursuant to the governing body’s adopted rules of parliamentary procedure not in conflict with laws applicable to the governmental body.” The Board, through its bylaws, adopted “Robert’s Rules of Order, as modified by the provisions of the[ ] Bylaws, [to] govern the conduct of business of the Board.”

According to Underwood, Robert’s Rules of Order allow the Board to adjourn a meeting to the call of the chair only “in order to continue a regular meeting that is in progress and has outstanding items of business at the time of the adjournment; the next meeting (‘the adjourned meeting’) would be an extension of the initial regular meeting ... with a shared agenda such that the adjourned meeting merely continues the business of the regular meeting on a different day.” Underwood’s brief, at 17. Underwood argues that the May 30 meeting could not be a continuation of the May 9 meeting, because “all business had been concluded on May 9, and the May 30 meeting had an entirely new and different agenda.” Id. at 17-18. Therefore, she argues, the Board’s “attempt to ‘extend’ the May 9 meeting” by recessing to reconvene at the call of the chair violated Robert’s Rules of Order. Id. at 18.

Article III, Section 1, of the Board’s bylaws provides that “Robert’s Rules of Order, as modified by the provisions of [the Board’s] Bylaws, shall govern the conduct of business of the Board.” (Emphasis added.) Article III, Section 2, of the bylaws provides that “[u]nless otherwise provided by a majority vote of the Board, each adjournment of a regular meeting shall be to a date set by the Chair for the next regular meeting.” Dean testified at the preliminary hearing that it was the custom of the Board to adjourn its regular meetings to reconvene at the call of the chair, and Underwood acknowledged in her deposition that this was the “common practice” of the Board. Article III, Section 2, of the bylaws gives the Board broad authority to set another regular meeting, and nothing in the language of that provision suggests that another regular meeting is possible only if some business at a mandatory regular meeting is unresolved.

In Dunn v. Alabama State University Board of Trustees, 628 So.2d 519, 527 (Ala.1993), overruled on other grounds, Watkins v. Board of Trustees of Alabama State University, 703 So.2d 335 (Ala.1997), we stated:

“ ‘Section 16-50-26 gives the Board discretion in setting more meetings than the two (2) minimum meetings mandated in the statute[] The only requirement is that the Board, “in regular session, determine [to meet] at some other time and place.” The court finds that the Board, in its regular meetings, has consistently voted to recess or adjourn at the call of the Chairman. A majority of Board members have agreed to this practice, and it does not violate [§ 16-50-26] which gives the Board members the right to meet as often as they desire.’ ”

(Quoting with approval the trial court’s order.)

It is undisputed that a majority of the Board members in attendance at the May 9 regular meeting voted to adjourn to “reconvene at the call of the chair.” Dean, in his capacity as the chair of the Board, then scheduled another regular meeting for May 30. The trial court is correct that “[t]his practice was condoned in Dunn.” The practice is consistent with the Board’s bylaws and is the long-standing custom and practice of the Board. Therefore, Underwood has failed to demonstrate that the Board violated its own policies and procedures or the Act in holding a meeting on May 30.

Underwood next argues that the Board violated the Act by “vot[ing] on a matter not otherwise on the agenda for the May 30 meeting.” Underwood’s brief, at 27. The trial court concluded that, “[w]hile some states bar consideration of items not delineated in an agenda, Alabama law and ASU’s bylaws allow consideration of issues not on the agenda.” We agree.

Section 36-25A-3(c), Ala.Code 1975, provides:

“Posted notice pursuant to this section shall include the time, date, and place of meeting. If a preliminary agenda is created, it shall be posted as soon as practicable in the same location or manner as the notice given pursuant to this section. A governmental body may discuss at a meeting additional matters not included in the preliminary agenda. If a preliminary agenda is not available, the posted notice shall include a general description of the nature and purpose of the meeting.”

(Emphasis added.) The Board’s bylaws provide:

“The Chairman of the Board and the President of the University shall prepare, in writing, the agenda for all meetings .... The agenda shall be approved by the Chairman of the Board. A majority of the members present may alter or modify the agenda. No business other than that on the approved agenda shall be transacted, except by majority vote of members present.”

(Emphasis added.)

It is undisputed that the resolution was not included in the preliminary agenda. However, the actual agenda for the May 30 meeting included a time for “Other Business” to be addressed, and a majority of the Board members present at the meeting considered and voted on the resolution. Therefore, we agree with the trial court that, “[wjhile the minutes do not reflect an actual vote to amend the agenda, in effect the agenda was modified since a majority of the trustees present approved the resolution.”

Underwood argues that § 36-25A-3(e) allows “discussion” of matters not included on the preliminary agenda, but does not allow such items to be put to a vote. She argues that “[a] separate section of the Open Meetings Act deals with ‘Rules of parliamentary procedure; voting.’” Underwood’s brief, at 27-28 (citing § 36-25A-5(b), AIa.Code 1975). However, nothing in § 36-25A-5(b) prohibits the Board from voting on a matter not included on the preliminary agenda. Section 36-25A-5(b) provides, in pertinent part:

“Unless otherwise permitted by this chapter or directed by provisions in the Constitution of Alabama of 1901, or other existing state law applicable to the governmental body, all votes on matters before a governmental body ... shall be made during the open or public portion of a meeting for which notice has been provided pursuant to this chapter.”

It is undisputed that the Board voted on the resolution during the open and public portion of the May 30 meeting, and the record indicates that notice of the meeting was provided pursuant to § 36-25A-3, Ala. Code 1975. Therefore, Underwood has not demonstrated that the Board violated the Act in voting on the resolution at its May 30 meeting.

Conclusion

Because ASU is an instrumentality of the State and therefore immune from suit, ASU is dismissed as a defendant. Underwood has not demonstrated that the Board violated the Act by failing to follow its own policies and procedures or by voting on a matter not included in the preliminary agenda. Therefore, we affirm the trial court’s judgment in favor of the Board.

ASU DISMISSED AS A DEFENDANT; AFFIRMED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.

      . Article III, Section 2, of the Board's bylaws provides:
      "Regular meetings of the Board shall be held in lieu of those set by Alabama Code 1975, Section 16-5[0]-26, in the month of February during Founder’s Day Week, in the month of May during Commencement Week, and during the month of September. Unless otherwise provided by a majority vote of the Board, each adjournment of a regular meeting shall be to a date set by the Chair for the next regular meeting.”

      . Section 36-25A-9(a) provides, in pertinent part:
      "Enforcement of [the Alabama Open Meetings Act] may be sought by civil action brought in the county where the governmental body’s primary office is located by any media organization, any Alabama citizen, the Attorney General, or the district attorney for the circuit in which the governmental body is located...."

      . Section 16-50-26, Ala.Code 1975, applicable to ASU, provides, in pertinent part:

        ‘‘The board shall hold regular meetings on the first Thursdays in May and November at the university unless the board shall, in regular session, determine to hold its meetings at some other time and place. The regular May meeting shall be the regular annual meeting.”
      Article III, Section 2, of the Board’s bylaws provides for regular meetings to "be held in lieu of those set by” this Code section.

      . The trial court relied on Dunn in concluding that the Board had acted lawfully. Underwood argues that the trial court erred in doing so, because (1) "Dunn predates the Open Meetings Act and the subsequent adoption by the [Board] of Robert’s Rules [of Order] pursuant to the Act," Underwood’s brief, at 22; and (2) "[l]he practice allowed by Dunn was to adjourn to the call of the chair to a date/time certain,” not to recess or adjourn until "some uncertain point in the future.” Underwood’s brief, at 24. We disagree.
      The fact that Dunn was decided before the enactment of the Act and the Board's adoption of Robert's Rules of Order does not render this Court’s decision in Dunn inapposite. In Dunn, the Court held that § 16-50-26 allows the Board to adjourn to the call of the chair and gives the Board the right " ‘to meet as often as [it] desire[s].’ " 628 So.2d at 527 (quoting with approval the trial court’s order). Nothing in the Act conflicts with that holding. The Act simply requires that the Board abide by its accepted parliamentary procedures. As discussed previously, the Board adopted Robert’s Rules of Order "as modified” by the Board's bylaws, and the bylaws permit meetings to be adjourned to the call the chair.
      Moreover, nothing in Dunn indicates that its holding is limited to instances in which the Board adjourns to reconvene at a specific date or time. Underwood relies on the following language from Dunn to support her argument:
      " 'There are four (4) types of meetings of the ASU Board: (1) those on the dates established by statute (which are to be used if the Board has not otherwise provided); (2) those on dates established by the Board for recurrent meetings, such as a meeting on the Founders' Day Weekend; (3) those set ad hoc by the Board, such as “adjourn to May 1," ... (4) meetings called by the Governor.' ”
      628 So.2d at 527 (quoting with approval the trial court’s order; emphasis added). Although the Court used, as an example of an ad hoc meeting, one adjourned to a specific date, there is no indication in Dunn that the Court intended for this example to narrow its holding to such a circumstance. Therefore, we disagree with Underwood that ”[t]he practice allowed by Dunn was to adjourn to the call of the chair to a date/time certain.” Underwood's brief, at 24.

      . Section 36-25A-3 provides, in pertinent part:
      "(a) Unless otherwise specified by law and as provided herein, any governmental body subject to this chapter ... shall post notice of all meetings ... at least seven calendar days prior to the meeting as follows:

        "(2) Any governmental body with statewide jurisdiction shall submit notice of its meeting to the Secretary of State. The Secretary of State shall post the notice on the Internet for at least seven calendar days prior to the day of the meeting. ... Any governmental body with less than statewide jurisdiction may also submit notice to the Secretary of State for posting on the website. Nothing shall prevent a governmental body subject to this subsection from posting notice in any additional manner.

      "(c) Posted notice pursuant to this section shall include the time, date, and place of meeting. If a preliminary agenda is created, it shall be posted as soon as practicable in the same location or manner as the notice given pursuant to this section....”
      Underwood does not dispute that the Board posted notice of the time, date, and location of the May 30 meeting on the Secretary of State’s Web site at least seven days before the meeting.


author: STUART, Justice.

text:
    Ex parte Jesse HUGHES d/b/a RBM Transport Company (In re Lee Lumber Company, LLC v. Jesse Hughes d/b/a RBM Transport Company).
    1090813.
    Supreme Court of Alabama.
    June 18, 2010.

      J. Paul Whitehurst, Northport, for petitioner.
    Thomas Michael Hobson of Hobson Law Firm LLC, Centreville, for respondent.
   STUART, Justice.

Jesse Hughes d/b/a RBM Transport Company (“Hughes”), the defendant in a breach-of-contract action filed by Lee Lumber Company, LLC, petitions this Court for a writ of mandamus directing the Bibb Circuit Court to transfer this action to the Pickens Circuit Court pursuant to § 6 — 3—2(a)(2), Ala.Code 1975, which provides, in relevant part, that “[a]ll actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant ... resides if such defendant has within the state a permanent residence.” We grant the petition and issue the writ.

I.

In June and July 2008, Hughes entered into two contracts with Lee Lumber to lease and then to purchase three trucks and three trailers to use to transport timber. Hughes thereafter used the vehicles to transport timber on behalf of Lee Lumber; however, at some point, Hughes apparently fell behind on his payments for the trucks and trailers, and Lee Lumber stopped paying Hughes’s invoices for the timber. On September 9, 2009, Lee Lumber sued Hughes in the Bibb Circuit Court, seeking damages of $24,600 as of that date. On September 28, 2009, Hughes moved the trial court to transfer the action to the Pickens Circuit Court pursuant to § 6-3-2(a)(2) because, he alleged, he resides in Pickens County. On December 11, 2009, Lee Lumber filed a response to Hughes’s motion to transfer, arguing that Hughes was the owner of an unincorporated business, RBM Transport Company, that did business with Lee Lumber in Bibb County and that venue in Bibb County was therefore proper under § 6-8-6, Ala.Code 1975, which provides that an “[a]ction against an unincorporated organization or association may be commenced in any county where such organization or association does business or has in existence a branch or local organization.”

On December 18, 2009, the trial court conducted a hearing on the motion to transfer, at which Hughes provided the following testimony:

“Q. All right. And, Mr. Hughes, you’re the defendant in this lawsuit that’s been brought by Lee Lumber?
“A: Yes, sir.
“Q: And you’ve been sued individually?
“A: Yes, sir.
“Q: Are you self-employed?
“A: Yes, sir.
“Q: And your business trade name— what’s your business trade name?
“A: RBM Transport Company.
“Q: That’s—
“A: D/b/a
“Q: That’s not a partnership—
“A: No.
“Q: —or a corporation or anything like that?
“A: No, sir.
“Q: And you live in Pickens County?
“A: Yes, sir.”

On February 10, 2010, the trial court denied the motion to transfer. On February 26, 2010, Hughes petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to transfer the action to the Pickens Circuit Court; however, that court denied Hughes’s petition without an opinion on March 9, 2010. On March 15, 2010, Hughes filed a petition seeking the same mandamus relief in this Court. On April 7, 2010, we ordered the parties to submit answers and briefs, and, upon their receipt, the case was submitted for review.

II.

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005). We must therefore determine whether Hughes has established a clear legal right to have this action transferred to the Pickens Circuit Court pursuant to § 6-3-2(a)(2). That question in turn hinges on our interpretation of §§ 6-3-2(a)(2) and 6-3-6. “The interpretation of [statutes] presents a question of law; consequently, our review is de novo.” Ex parte Quick, 23 So.3d 67, 70 (Ala.2009) (citing Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003)).

III.

Hughes testified at the hearing on his motion to transfer that he operated RBM Transport as an unincorporated entity. Hughes testified that he had no partners in the endeavor, and it appears that RBM Transport had no distinct legal existence other than its operation by Hughes. For legal purposes, RBM Transport Company must therefore be considered a sole proprietorship. See Black’s Law Dictionary 1427 (8th ed. 2004) (defining “sole proprietorship” as “[a] business in which one person owns all the assets, owes all the liabilities, and operates in his or her personal capacity”). In Carolina Casualty Insurance Co. v. Williams, 945 So.2d 1030, 1035 (Ala.2006), this Court recognized that “Alabama law makes no distinction between an individual and a sole proprietorship operated by the individual. They are considered the same for legal purposes.” (Citing Clardy v. Sanders, 551 So.2d 1057, 1059-60 (Ala.1989).) Accordingly, whether “Jesse Hughes d/b/a RBM Transport Company” is characterized as an individual or a sole proprietorship the end result is the same — Lee Lumber’s breach-of-contract action must be viewed as one against an individual, and venue is accordingly governed by § 6-3-2(a), which by its terms applies to “proceedings of a legal nature against individuals ” (emphasis added).

Moreover, we note that in order to bring the defendant within the scope of § 6-3-6, RBM Transport Company would have to be considered “an unincorporated organization or association.” However, both the term “organization” and the term “association” imply that there are multiple individuals involved in the endeavor, yet there is no evidence in the materials before this Court indicating that anybody other than Hughes is involved in RBM Transport Company. See Black’s Law Dictionary 1133, 132 (8th ed. 2004) (defining organization as “[a] body of persons (such as a union or corporation) formed for a common purpose” and defining association as “[a] gathering of people for a common purpose; the persons so joined [or] [a]n unincorporated organization that is not a legal entity separate from the persons who compose it.” (emphasis added)).

IV.

Hughes moved the trial court to transfer this action to the Pickens Circuit Court based on his residency in Pickens County, but that motion was denied by the trial court. However, because Hughes is the only defendant in this breach-of-contract action, venue in Pickens County is proper pursuant to § 6-3-2(a)(2), and the trial court accordingly exceeded its discretion in failing to grant Hughes’s motion and transfer the case. Hughes’s petition is therefore granted, and the trial court is directed to vacate its previous order denying the motion to transfer and to enter an order granting the motion and transferring the case to the Pickens Circuit Court.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, BOLIN, and MURDOCK, JJ., concur.

      . In Ex parte Macon County Greyhound Park, Inc., 634 So.2d 997, 999 (Ala.1993), dais Court stated in passing that § 6-3-6 would apply in an action where one of the defendants was an unincorporated business owned by an individual. However, this statement was made only after the Court had already decided the proper venue for the action based on § 6-3-7, Ala.Code 1975; accordingly, the statement in Ex parte Macon County Greyhound Park was dicta and not precedent to be followed by this Court.


author: STUART, Justice. WOODALL, Justice

text:
    Mary Nell PHILLIPS v. James Travis SEWARD and Heartland Express, Inc.
    1081226.
    Supreme Court of Alabama.
    June 25, 2010.

      S. Mark Andrews and Dan Talmadge of Morris, Cary, Andrews, Talmadge & Drig-gers, LLC, Dothan, for appellant.
    Edgar M. Elliott IV, Deborah Alley Smith, and Abbott M. Jones of Christian & Small LLP, Birmingham, for appellees.
   STUART, Justice.

Mary Nell Phillips sued commercial truck driver James Travis Seward and his employer, Heartland Express, Inc., in the Houston Circuit Court after she was injured in an automobile accident involving her vehicle and an 18-wheel tractor-trailer rig driven by Seward. Following a jury trial, the jury returned a verdict in favor of Seward and Heartland Express. The trial court denied Phillips’s motion for a judgment as a matter of law or, in the alternative, for a new trial and entered a judgment on the jury’s verdict. Phillips appeals. We reverse and remand.

I.

On November 17, 2004, Phillips was driving her Dodge Caravan minivan on Ross Clark Circle on the north side of Dothan when she entered a dedicated right-turn lane to turn right and travel north on the Montgomery Highway. That right-turn lane was not governed by the traffic signal directing traffic crossing or turning left onto the Montgomery Highway; rather, the traffic-control device for that lane was a yield sign. As Phillips came to the intersection, she stopped at a spot approximately even with the yield sign to wait for a break in traffic on the Montgomery Highway so she could merge into the northbound lane to her left once she made the turn. The lane Phillips was stopped in continued north on the Montgomery Highway for some period before requiring vehicles in it to turn right, but Phillips stated at trial that she did not proceed in the lane because she “wasn’t going to turn right.”

Seward was traveling that same route when he pulled behind Phillips and stopped to wait for her to enter the Montgomery Highway so that he could then do likewise. When questioned by Phillips’s attorney at trial, Seward described the accident that happened next as follows:

“Q: Tell us how this accident happened.
“A: We were stopped in the turn lane. Ms. Phillips pulled forward. I let off my clutch, moved forward. She stopped. I couldn’t stop in time to keep from bumping her.”

Seward further testified that he was unsure exactly where he was looking in the moments immediately before the accident when he looked back and saw Phillips had stopped:

“Q: Okay. Now, you told us that you felt like that you had been stopped, and then you looked up, and then she had stopped, and then that’s when you hit her?
“A: We were stopped.
“Q: But again, you don’t know where you were looking just before the accident, do you?
“A: We were stopped. If you want me to say exactly what I was looking at at that moment, I can’t be accurate about that.
“Q: You agree that Ms. Phillips was stopped. Correct?
“A: Yes.
“Q: And when you hit her, she was stopped?
“A: Yes, sir.
“Q: Okay. And now, why is it that you did not see her stopped?
“A: When I saw her stopped, it was too late to react, so I bumped her.
“Q: Is that because you had been looking off somewhere?
“A: Well, as I said, I can’t be accurate in what I was looking at at that moment.
“Q: That’s fine. But at the time you looked up — when you looked back, she was stopped?
“A: Yes, sir.
“Q: Okay. And you don’t fault her for this, do you?
“A: No, sir.
“Q: You don’t have any criticism of Ms. Phillips?
“A: No, sir. No, sir. Not at all.”

The police officer who responded to the accident testified that Seward told him he was moving at approximately five miles an hour at the time of impact and in the officer’s estimation that “would probably be pretty close.” Phillips testified that she never saw Seward, but she was adamant that she never moved forward or took her foot off the brake after she came to her initial stop even with the yield sign. She described the accident as follows at trial:

“Well, the traffic was real heavy that afternoon, and I was sitting there waiting for the traffic that was headed up north off of [Ross Clark] Circle. And I had been sitting there probably a couple of minutes, because it was real heavy. And I had pulled my sun visor down, because I was headed toward the sun. And just, suddenly, this impact hit me, and I was thrown forward. And, you know, a seat belt, I guess, is designed to catch you and hold you. So it tightened up around me. And my head hit the sun visor. And possibly, it might have even hit the metal across the top of the car, because I’m a tall lady, you know. But I did have a head injury. In fact, I almost lost consciousness.”

Following the accident, Phillips’s grandson was called to the scene, and he took her to the hospital. Phillips complained of head and neck pain, and X-rays were taken, but no fractures were revealed, and Phillips was released. In the period following the accident, Phillips experienced bruising on her abdomen where the seat belt had caught her, and an eschar, or patch of dead skin tissue, developed in the same area. A blister subsequently developed there as well, which her physician advised was a superficial seat-belt burn.

On November 8, 2006, Phillips sued Seward and Heartland Express in the Houston Circuit Court, alleging negligence and seeking damages for the injuries she alleged she had suffered in the November 17, 2004, accident. After discovery was concluded and pretrial motions were resolved, the case proceeded to trial on April 15, 2009. At trial, Phillips argued that Seward’s negligence had caused the accident, resulting in the injuries treated immediately after the accident, as well as a fistula running from her colon and exiting her stomach that did not develop until July 2007, but which, she alleged, was caused when a piece of prolene mesh placed in her abdomen in a July 1999 procedure to treat an incisional hernia was jarred loose by the impact of the accident and subsequently became enmeshed in her colon, leading to an infection. Seward and Heartland Express denied that Seward’s actions leading up to the accident were negligent; they argued that the accident was instead caused by Phillips’s negligence. They also submitted testimony from an expert indicating that the erosion of the prolene mesh into Phillips’s colon was unrelated to the automobile accident.

After the presentation of all the evidence, Phillips moved for a judgment as a matter of law on the issues of negligence and liability, arguing that “[t]here has been no evidence at all presented that would lead any fact finder to conclude that [the accident] was anything other than the fault of Mr. Seward.” The trial court denied the motion, and the case was then submitted to the jury, which ultimately returned a verdict in favor of Seward and Heartland Express. Phillips’s post-judgment motion requesting a judgment as a matter of a law or, in the alternative, a new trial, was subsequently denied by the trial court, and, on June 12, 2009, she filed her timely notice of appeal to this Court.

II.

On appeal, Phillips first argues that the trial court erred by failing to enter a judgment as a matter of law in her favor on the issues of negligence and liability. We review this argument pursuant to the following standard of review:

“When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in deciding whether to grant or deny the motion for a [judgment as a matter of law]. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmovant must have presented substantial evidence in order to withstand a motion for a [judgment as a matter of law]. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assuranee Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Id.”

Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1152 (Ala.2003).

In her brief, Phillips summarizes her argument that she was entitled to a judgment as a matter of law as follows:

“The evidence that Seward negligently caused the accident was undisputed at trial. Seward testified that the reasonable thing for him to have done was to operate his vehicle so as to avoid hitting the vehicle operated by Phillips, that he did hit the vehicle operated by Phillips from behind, that he had no criticisms of Phillips and that he did not fault her for the accident. Seward failed to keep a proper lookout, was not paying attention to traffic, was following too closely and drove an eighteen-wheeler into the rear of a vehicle whose driver was properly and lawfully stopped.”

(Phillips’s brief, pp. 27-28.) Seward and Heartland Express counter by arguing that a judgment as a matter of law was not appropriate because, they argue, substantial evidence was presented at trial indicating (1) that Seward was not negligent, that is, that he acted as a reasonable driver under the circumstances, and (2) that Phillips acted unreasonably under the circumstances and was thus contributorily negligent. We first consider the evidence regarding Seward’s alleged negligence.

At trial, the undisputed evidence indicated: (1) that Phillips stopped her vehicle in the right-turn lane on Ross Clark Circle to turn north onto the Montgomery Highway; (2) that Seward stopped his vehicle behind her vehicle; and (3) that Seward subsequently struck the rear of Phillips’s vehicle with the front of his vehicle. In Harshaw v. Nationwide Mutual Insurance Co., 834 So.2d 762, 765 (Ala.2002), a case also involving a rear-end collision, we stated that, under Alabama law, such evidence is sufficient to establish a prima facie case of negligence:

“[The appellant] offered unrefuted evidence that [the uninsured motorist] was at fault, that is, that he was negligent. First, she proved, without dispute, that [the uninsured motorist] had driven his vehicle into the rear of her vehicle, which was lawfully stopped. In so proving, she established that [the uninsured motorist] was prima facie guilty of negligence. See Gribble v. Cox, 349 So.2d 1141, 1144 (Ala.1977) (‘the rule in Alabama’ is that ‘one who drives his auto into the rear of another who is stopped in obedience to a traffic light is prima facie guilty of negligence’).”

However, as we also noted in Harshaw, “the defendant may present evidence to rebut the plaintiffs prima facie case.” 884 So.2d at 765. Seward and Heartland Express argue that they did in fact rebut Phillips’s evidence inasmuch as they presented evidence indicating that, after coming to a stop at the yield sign, Phillips started to move her vehicle forward and then stopped, leaving Seward with no time to brake before he ran into her vehicle. They accordingly argue that “the jury was entitled to conclude that Seward reasonably believed that Phillips would continue moving in the merge lane when he observed her moving forward in the turn lane, and that he acted reasonably in letting off his brakes to move forward also.” (Brief of Seward and Heartland Express, pp. 27-28.) We agree. Fair-minded persons in the exercise of impartial judgment could conclude that it was reasonable for Seward to begin moving forward when he saw that Phillips was doing so. West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (“[Sjubstan-tial 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.”). Accordingly, because Seward and Heartland Express presented evidence from which the jury could reasonably infer that Seward’s actions leading to the rear-end collision with Phillips were reasonable, the trial court did not err in denying Phillips’s motion for a judgment as a matter of law on the issues of negligence and liability. See also Jones v. Baltazar, 658 So.2d 420 (Ala.1995) (holding that the jury was entitled to conclude that ttle defendant had acted as a reasonable person under the circumstances and was accordingly not negligent even though she had rear-ended the plaintiffs stopped vehicle).

III.

In the event this Court determined that her motion for a judgment as a matter of law was not erroneously denied, Phillips has also argued that she is entitled to a new trial for the following reasons: (1) the jury’s verdict was against the great weight of the evidence and was plainly and palpably wrong; (2) the jury instructions given by the trial court were sufficiently erroneous and/or misleading as to constitute prejudicial and reversible error; and (3) the trial court exceeded its discretion by allowing the testimony of Seward and Heartland Express’s expert witness, who testified that the accident could not have caused the development of a fístula in Phillips’s abdomen nearly three years after the accident. We agree that the jury instructions given by the trial court were erroneous and prejudicial, specifically inasmuch as the trial court charged the jury as to contributory negligence. Accordingly, we consider only that argument and pretermit consideration of Phillips’s other arguments seeking a new trial.

Phillips argues that Seward and Heartland Express failed to present substantial evidence that the accident in which she was injured was at least partly the result of her own negligence and that the trial court accordingly erred by charging the jury on contributory negligence. In George H. Lanier Memorial Hospital v. Andrews, 809 So.2d 802, 806 (Ala.2001), we stated:

“Under Alabama law, ‘ “[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial.” ’ King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991) (citation omitted). When an objection to a jury charge has been properly preserved for review on appeal, as this one was, we ‘“look to the entirety of the [jury] charge to see if there was reversible error,” ’ and reversal is warranted only if the error is prejudicial. King, 585 So.2d at 12.”

It is undisputed that Phillips properly objected to the challenged jury instruction regarding contributory negligence and that she preserved that issue for appeal; therefore, we must determine whether, in fact, there was substantial evidence that Phillips was in some way negligent so as to justify the giving of the challenged instruction on contributory negligence.

The doctrine of contributory negligence provides that “a plaintiff cannot recover in a negligence suit where plaintiffs own negligence is shown to have proximately contributed to his damage, notwithstanding a showing of negligence on the part of the defendant.” Brown v. Piggly-Wiggly Stores, 454 So.2d 1370, 1372 (Ala.1984). Contributory negligence is an affirmative defense, and Seward and Heartland Express accordingly bore the burden of proving it at trial. Serio v. Merrell, Inc., 941 So.2d 960, 964 (Ala.2006). Seward and Heartland Express argue that they met their burden by submitting evidence indicating that Phillips stopped her vehicle at the yield sign, started to move it forward, and then stopped it even though there was an open merge lane in front of her, leaving Seward with no time to brake before running into the rear of her vehicle. We disagree that this evidence indicates that Phillips was negligent.

It is undisputed that the lane in which Phillips’s vehicle would be traveling when she made the right turn eventually required vehicles in it to turn right, that Phillips did not intend to turn right, and that she was attempting to merge left into heavy traffic so she could continue north on the Montgomery Highway. We cannot agree that a fair-minded person in the exercise of impartial judgment could reasonably conclude that a driver attempting to merge in such circumstances acted unreasonably or negligently merely by beginning to move forward after she had stopped and then restopping. Certainly, Seward did not believe that Phillips acted unreasonably; he had no criticism of her driving at trial, and he testified that he did not fault her for the accident. Accordingly, we conclude that Seward and Heartland Express failed to present substantial evidence that Phillips was contributorily negligent. In the absence of substantial evidence that Phillips was in some manner negligent, the trial court erred by charging the jury on contributory negligence. That error was prejudicial and can be remedied only by granting Phillips’s motion for a new trial.

IV.

Because there was substantial evidence from which the jury could have reasonably concluded that Seward’s actions leading to the accident were reasonable, the trial court did not err in denying Phillips’s motion for a judgment as a matter of law on the issues of negligence and liability. However, because there was not substantial evidence indicating that the accident was to some extent caused by Phillips’s own negligence so as to justify a jury instruction on contributory negligence, the trial court did err by so charging the jury. Accordingly, the judgment entered on the jury’s verdict is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

LYONS, SMITH, PARKER, and SHAW, JJ., concur.

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

WOODALL, Justice

(concurring in the result).

I concur in the result. I agree that the trial court erred by charging the jury on contributory negligence. Although James Travis Seward and Heartland Express, Inc., argue that they “presented sufficient evidence from which a reasonable juror could conclude that [Mary Nell] Phillips made a sudden stop that contributed to cause the accident,” brief of Seward and Heartland, at 38 (emphasis added), my review of the record reveals no evidence indicating that Phillips “made a sudden stop” or that she was possibly negligent in some other respect.

COBB, C.J., concurs.

      . A “fistula” has been defined as " 'an abnormal passage leading from an abscess or hollow organ to the body surface or from one hollow organ to another and permitting passage of fluids or secretions.' ” Orgeron v. Louisiana Med. Mut. Ins. Co., 1 So.3d 576, 582 n. 6 (La.Ct.App.2008) (quoting Webster’s Collegiate Dictionary (10th ed. 1997)).

      . Although Phillips disputes Seward’s allegation that she began to move forward after she stopped initially and then stopped again, our standard of review requires us to accept Seward’s allegation as true for the purposes of this analysis. Waddell & Reed, Inc., 875 So.2d at 1152.


author: SHAW, Justice.

text:
    E. Wayne RUSSELL, Jr. v. STATE of Alabama and City of Auburn.
    1080426.
    Supreme Court of Alabama.
    June 25, 2010.

      J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellant.
    Monica E. Jayroe and Jarred E. Kaplan of Nix Holtsford Gilliland Higgins & Hit-son, P.C., Montgomery, for appellee the State of Alabama.
   SHAW, Justice.

E. Wayne Russell, Jr., appeals from the Lee Circuit Court’s order denying an award of litigation expenses following the dismissal of the underlying eminent-domain action in which the State of Alabama sought to condemn a portion of Russell’s property in Lee County on behalf of the City of Auburn (“the City”). The sole issue raised by Russell on appeal is whether the Lee Circuit Court erred in failing to award litigation expenses, which, Russell maintains, is mandated by § 18-1A-232, Ala.Code 1975. We reverse and remand.

The State filed the underlying condemnation action in the Lee County Probate Court. The probate court entered a final order of condemnation permitting the proposed condemnation and awarding Russell $470,000 in compensation. Russell appealed to the Lee Circuit Court for a trial de novo.

The parties then engaged in various pretrial filings and proceedings — one of which resulted in the City being added as a party — including a third-party complaint against Joe Mclnnes as director of the Alabama Department of Transportation, motions for a summary judgment filed by both the State and the City, and a motion to dismiss filed by Russell in which he challenged the subject-matter jurisdiction of the circuit court. Following a hearing on Russell’s motion to dismiss, the circuit court entered an order on August 20, 2008, dismissing the action. Specifically, the circuit court noted that neither the City nor the director of the Alabama Department of Transportation, both of whom the circuit court determined were necessary and indispensable parties to the condemnation proceeding, were added as parties until the appeal to the circuit court. Therefore, the circuit court concluded, the probate court had never obtained jurisdiction, and the resulting order issued by the probate court, which formed the basis for the appeal to the circuit court, was void.

Russell subsequently filed a motion seeking the award of litigation expenses. On October 31, 2008, following a hearing, the circuit court entered an order reiterating its conclusion that it lacked subject-matter jurisdiction over the appeal, denying “all pending motions filed subsequent to August 14, 2008” (see supra note 1), and clarifying that its August order dismissed the matter “without prejudice to the Plaintiffs] filing a new case in the Probate Court of Lee County.”

On November 24, 2008, Russell filed a “Motion to Reconsider, Alter or Amend Order Denying Defendant’s Motion for Award of Costs and Other Litigation Expenses” referencing the circuit court’s October 31 order and asserting that the circuit court’s denial of his motion requesting an award of litigation expenses was in error. The circuit court denied that motion by an order entered December 5, 2008, and Russell appealed.

Although the circuit court concluded that it lacked subject-matter jurisdiction over the eminent-domain proceeding, we hold that it nevertheless had jurisdiction over Russell’s motion for litigation expenses. Specifically, a court’s subject-matter jurisdiction “is derived from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006). In determining a court’s subject-matter jurisdiction, “we ask only whether the trial court had the constitutional and statutory authority” to hear the case. Seymour, 946 So.2d at 538. Here, the plain language of § 18-lA-232(a) provides that, in an eminent-domain action, “[t]he court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.” (Emphasis added.) Section 18-lA-232(a) thus provides the circuit court the “power” to award litigation expenses in this case, even if the action itself was “dismissed for” lack of subject-matter jurisdiction. See also generally State Dep’t of Human Res. v. Estate of Harris, 857 So.2d 818, 820 (Ala.Civ.App.2002) (“Alabama follows the ‘American Rule’ regarding the award of an attorney fee; that rule provides for the recovery of an attorney fee if a fee is allowed by statute, by the terms of a contract, or by a ‘special equity.’ ” (emphasis added)). Russell’s motion seeking litigation expenses was, therefore, unaffected by any lack of subject-matter jurisdiction over the eminent-domain action and was properly filed after the dismissal of that action. See Williams v. Deerman, 724 So.2d 18, 21 (Ala.Civ.App.1998) (stating that a landowner’s claim for costs and fees in a condemnation action that has been dismissed does “not accrue, and the time for ... assertion [of the claim] d[oes] not begin to run,” until the action is dismissed).

On appeal, as in the circuit court, Russell argues that “[t]he courts of this state have repeatedly held that the plain language of § 18-1A-232 is ‘unambiguous,’ ... and that an award of costs and litigation expenses to the defendant is ‘mandatory’ and ‘required’ by the statute.” In support of that argument, Russell cites Carroll v. Ward, 814 So.2d 287 (Ala.Civ.App.2001). In Carroll, also in connection with a request for fees and expenses following the dismissal of an eminent-domain proceeding, which was later refiled, the Court of Civil Appeals stated:

“Article 13 [of the Eminent Domain Code] allows an award of attorney fees in an eminent domain proceeding, as set out in § 18-1A-232:
“ ‘(a) The court shall award the defendant his litigation expenses, in addition to any other amounts authorized by law, if the action is wholly or partly dismissed for any reason.
“ ‘(b) If the scope of the property to be taken is reduced as the result of (1) a partial dismissal, (2) a dismissal of one or more plaintiffs, or (3) a final judgment determining that the plaintiff cannot take part of the property originally sought to be taken, the court shall award the defendant the portion of his litigation expenses attributable to the property within the scope of the reduction.
“ ‘(c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions.’
“Section 18-1A-3(12) defines ‘litigation expenses’ as ‘[t]he sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or participation in actual probate or circuit court proceedings.’
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Swift v. Gregory, 786 So.2d 1097, 1100 (Ala.2000), quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).
“In its May 2, 2000 order, the trial court made it clear that the dismissal was without prejudice, so that Ward and Buttram could refile their action. The trial court also recognized that ‘the law appears to be clear as to the fixing and awarding of litigation costs in a case where a condemnation is dismissed in whole or in part.’ Although the trial court indicated that a strict application of § 18-1A-232 would not be appropriate under the facts of this case the law is unambiguous. A defendant in a condemnation proceeding is entitled to an award of an attorney fee if the proceeding is dismissed for any reason.’ The fact that the case was dismissed without prejudice and has been refiled does not mean that the Carrolls did not incur litigation expenses in defending the original lawsuit filed in 1994,.”

814 So.2d at 289-90 (emphasis added). See also Paulk v. McCarty, 855 So.2d 1123, 1126 (Ala.Civ.App.2003) (noting that in Carroll the Court of Civil Appeals “concluded that the phrase ‘shall award’ in § 18-1A-232 was unambiguous and that a litigation-expense award was mandatory when a condemnation action brought pursuant to § 18-3-1 et seq., Ala.Code 1975, had been terminated by the entry of a judgment by a circuit court dismissing a de novo appeal from a probate-court condemnation judgment”).

Similarly, here, although the parties represent to this Court that the eminent-domain action has been refiled, the fact remains that Russell incurred litigation expenses associated with the defense and subsequent appeal of the original eminent-domain proceeding, which was ultimately dismissed. We agree with the Carroll court that the statute is clear and that the award of any litigation expenses is “mandatory.”

The State attempts to argue that the circuit court’s dismissal of the eminent-domain action was based on Russell’s “Rule 12(b)(l)[, Ala. R. Civ. P„] motion” and not on one of the three grounds of dismissal stated in § 18-1A-230, Ala.Code 1975, which provides:

“On motion of the defendant, the court shall dismiss the action in whole or in part, as justice requires, if:
“(1) Upon sustaining a preliminary objection to the plaintiffs complaint, the court determines that a dismissal is required;
“(2) The plaintiff has unjustifiably failed to exercise reasonable diligence in prosecuting the action;
“(3) The plaintiff has failed to pay the full amount required by the judgment within time allowed.”

Therefore, it argues, § 18-1A-232 does not apply. However, the State does not cite any authority in support of that position, nor does it cite any authority indicating that a Rule 12(b) motion is not “a preliminary objection to the plaintiffs complaint” as described in § 18-1A-230(1).

We reverse the order of the circuit court denying Russell’s motion for an award of costs and expenses in the underlying eminent-domain proceeding, and we remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . Although the circuit court executed the order on August 14, 2008, that order was not entered by the circuit clerk until August 20, 2008. See Rule 58(c), Ala. R. Civ. P. ("An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”).

      . Section 18-lA-72(a)(l), Ala.Code 1975, provides that the complaint commencing an eminent-domain action "shall ... [djesignate as a plaintiff each person on whose behalf the property is sought to be taken.” See also Withington v. Cloud, 522 So.2d 263, 265 (Ala.1988) (“ 'The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.' ” (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 851 (Ala.1981))).

      .The correctness of the circuit court’s dismissal is not an issue in this appeal, and this Court expresses no opinion on that issue.

      . Russell’s motion for litigation expenses and attorney fees was not a motion to alter or amend a judgment pursuant to Rule 59(e), Ala. R. Civ. P. See Ford v. Jefferson County, 989 So.2d 542, 545 (Ala.Civ.App.2008) (concluding that petition for assessment of attorney fees and costs was not subject to the 30-day time limitation of Rule 59(e), Ala. R. Civ. P., and observing that "the United States Supreme Court has held that a request for an award of attorney fees ... is not a 'motion to alter or amend a judgment’ ” (citing White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 452, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982))). See also Buchanan v. Stanships, Inc., 485 U.S. 265, 267-68, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988) (reasoning that because the statute at issue "provides for fees independently of the underlying cause of action and only for a ‘prevailing party,’ a motion for fees required an inquiry 'separate from the decision on the merits — an inquiry that cannot even commence until one party has "prevailed” ' ” and that “[sjuch a motion therefore ' “does not imply a change in the judgment, but merely seeks what is due because of the judgment” ’ ” (citations omitted)). Therefore, Russell’s motion to “reconsider” the denial of that request was not a successive postjudgment motion, and it tolled the 42-day period for filing an appeal. See, e.g., Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998) (noting that "a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal”).

      . The State also contends, relying on language in the circuit court’s October 31, 2008, order in which the circuit court indicated that "[its] Order in regard to the Hearing held on October 30, 2008 is not to be considered a Final Order or Res Judicata in regard to [Russell's] claim for attorneys’ fees,” that the order is a nonfinal order from which an appeal will not lie. However, it is apparent from the record that this language was not an indication of the finality of the circuit court’s ruling. Instead, it appears that this language was intended to express the circuit court's belief that it did not have subject-matter jurisdiction to award the requested expenses but that a future request of those same expenses was available once the matter was refiled in the probate court. In fact, in that same order, the circuit court further stated: "[Russell’s] attorney may well be entitled to all attorney’s fees and costs when this matter is re-filed for services performed and expenses incurred during the first filing of this case.” Therefore, the circuit court clearly denied Russell’s motion for the requested expenses in the underlying case, and its explanation that the issue could be resolved in a later proceeding did not affect the finality of its adjudication.