author: PARKER, Justice.

text:
    600, L.L.C. v. Altaf VIRANI.
    1100447.
    Supreme Court of Alabama.
    Jan. 20, 2012.
    William Thompson, Talladega, for appellant.

      Jonathan K. Vickers, Birmingham, for appellee.
   PARKER, Justice.

Altai Virani filed an action against 600, L.L.C. (“the LLC”), attempting to redeem real property the LLC purchased from the bank that had foreclosed on that property. After a bench trial, the Talladega Circuit Court entered a judgment establishing the amount Virani was required to pay to redeem the property. The LLC appeals, arguing that the amount the judgment requires him to pay is incorrect. We reverse and remand.

Facts and Procedural History

On February 2, 2007, AAN, Inc. (“AAN”), purchased a lot located at 600 1st Street SW, in Childersburg (hereinafter referred to as “the 1st Street property”). AAN’s purchase of the 1st Street property was funded by a $540,000 promissory note from Aliant Bank (“Aliant”); the promissory note was secured by a mortgage on the 1st Street property.

Subsequently, AAN defaulted on the note and Aliant foreclosed on the mortgage, and, on November 3, 2009, Aliant purchased the 1st Street property at the foreclosure sale. The purchase price at the foreclosure sale was $511,000. Aliant then sold the 1st Street property to the LLC on December 18, 2009, for $275,000. On February 17, 2010, AAN quitclaimed to Virani “all the rights, title and interests, if any,” it had in or to the 1st Street property, “including but not limited to any and all rights of redemption or redemption rights available under the law.”

On March 8, 2010, Virani’s attorney sent a letter to the LLC, stating Virani’s intention to redeem the 1st Street property and “officially requesting an itemized statement of all lawful charges claimed” by the LLC within 10 days of the date of the letter. The letter identifies Virani as “the current tenant” of the 1st Street property.

On March 10, 2010, Virani purchased from Aliant “all of its rights, title, and interest in and to” the February 2, 2007, promissory note. According to Virani, he purchased “the excess amount owed to Aliant.” Virani’s brief, at 10. The promissory note had originally been secured by Aliant’s mortgage on the 1st Street property.

On March 16, 2010, the LLC responded to Virani’s letter, providing a statement of charges, which included three items: the purchase price Aliant paid at the foreclosure sale, which was $511,000; interest on the purchase price from the date of the foreclosure sale through March 16, 2010, at 12% per annum, for a total of $22,344; and the cost of property insurance obtained through State Farm Insurance Company, at a cost of $4,343. The total of the three charges was $537,687.

On May 19, 2010, Virani filed a “complaint for redemption” in the trial court, naming two defendants: Birmingham Partners, L.L.C., and the LLC. In the complaint, Virani alleged that he owned “the right to redeem the [1st Street] property”; that he had requested from the LLC a statement of charges necessary to redeem the property; and that, although the LLC had responded, the statement provided was

“incorrect[,] ... false and fraudulent in that it include[d] the amount of the debt Aliant Bank paid at foreclosure sale and contained] a very considerable number of charges which [were] not in law proper and some of the charges therein claimed [were] exaggerated; and [Virani was] unable to ascertain the correct amount of said mortgage debt or the correct amount of the charges claimed by said defendant, 600, L.L.C.”

Included with Virani’s complaint was a check for “$288,742.31 ($275,000.00 as purchase price and $13,742.32 as interest at $90.41 per di[e]m),” which Virani inter-pleaded into the trial court.

On June 3, 2010, the LLC sent a letter to Virani, demanding that he surrender possession of the 1st Street property within 10 days.

On June 17, 2010, the LLC filed an answer and counterclaim in response to Virani’s complaint. The counterclaim alleged that Virani had been occupying the 1st Street property as a “tenant at will” since the LLC had purchased the property from Aliant. The counterclaim also alleged that Virani had paid no rent in December 2009, had paid the LLC $4,500 in rent in January 2010 and had paid $4,500 again in February 2010, but had paid no rent since then. The LLC further alleged that it had served Virani “with a 10 day notice to vacate and give up possession of said property” but that Virani “failed and refused to deliver said possession.” The LLC requested that the trial court enter a judgment restoring it to possession of the 1st Street property and awarding it damages, interest, and costs.

A bench trial was held on September 30, 2010. Only two witnesses testified at trial: Virani and Abdul Rahman Rahim, who was a member, an officer, and the managing partner of the LLC. During the trial, Vira-ni admitted that he did not pay rent to the LLC after February 2010. Virani then paid the LLC all rent previously due for the 1st Street property, and the trial court ultimately dismissed the LLC’s counterclaim. See infra note 3. The LLC’s brief, at 4. At the request of the trial court, both Virani and the LLC submitted posttrial briefs.

On December 13, 2010, the trial court entered the following judgment:

“This matter came to trial on September 30, 2010. The Court finds the following facts to be undisputed:
“On or about February 2, 2007, AAN, Inc. executed a certain note secured by a mortgage to Aliant Bank, which said mortgage was duly recorded in the Probate Office Talladega County in Book 1224, Page 447. Said mortgage was secured by property located at 600 1st St. SW, Childersburg, Alabama 35044, respectively, located and situated in Tal-ladega County, Alabama, described as follows, to-wit:
“ ‘Block Two (2) of the Childersburg Land Company Survey of Childers-burg, as recorded in Plat Book 1, Page 20, in the Probate Office of Tal-ladega County, Alabama. Lying and being situated in Section 20, Township 20 South, Range 3 East, in the City of Childersburg, Talladega County, Alabama.’
“On or about November 3, 2009, Ali-ant Bank, the mortgagee, foreclosed said mortgage recorded in Book 1224, Page 447 under the power of sale contained therein. Said Foreclosure Deed is filed in Book 938, Page 305. Aliant Bank bid the property in for $511,000.00.
“Subsequently, on or about December 18, 2009, Defendant 600, L.L.C. purchased from Aliant Bank the aforesaid property for the sum of $275,000.00.
“Subsequently, on or about February 17, 2010, AAN, Inc., by and through Quit Claim Deed, did transfer its redemption rights to Plaintiff, Altai Virani. Said deed is recorded in Book 943, Page 359 in said Probate Office.
“That [Virani] is the owner of the right to redeem the subject property from said mortgage foreclosure sale of November 3, 2009, pursuant to and in accordance with § 6-5-248 et seq., Ala Code 1975, by virtue of said Quit Claim Deed dated February 17, 2010.
“On or about March 8, 2010, [Virani] made demand on Defendants, Birmingham Partners, L.L.C. and 600, L.L.C., for an itemized statement in writing of the debt and all lawful charges claimed by it as the purchaser from Aliant Bank and owner of the subject property.
“On or about March 17, 2010, [Virani] received from Defendant, 600, L.L.C., a statement of the amount of the debt and charges claimed by Defendant, 600, L.L.C. Said statement is alleged [to be] incorrect, false and fraudulent in that it includes the amount of the debt Aliant Bank paid at foreclosure sale and contains a number of charges which are not in law proper and some of the charges therein claimed are exaggerated; and [Virani] alleges he was unable to ascertain the correct amount of said mortgage debt or the correct amount of the charges claimed by said defendant, 600, L.L.C. [Virani] alleges he was unable to ascertain the amount necessary to be paid or tendered in order to redeem the subject property. The charges alleged to be false, fraudulent, exaggerated, and unlawful are:
“1) The amount paid: $511,000.00
“2) Interest Amount: $22,344.00
“3) Insurance and property taxes: $4,343.00
“Total of the claimed amounts: $537,687.00
“That the [LLC] actually paid $275,000.00 in a subsequent sale by Ali-ant Bank. That Aliant Bank negotiated the difference between its purchase price of $511,000.00 and the sale price of $275,000.00 and the same was purchased (the deficiency) by [Virani].
“IT IS THEREFORE CONSIDERED AND ORDERED:
“That Alabama Code [1975], § 6-5-248 et seq., is the controlling Alabama law that governs the redemption of property along with various Alabama Supreme Court decisions that interpret the Alabama Code. In this instance, Alabama Code § 6-5-253(a) controls the purchase price to be paid by the redeemer of the land. The question made the basis of the current cause of action is, what is the purchase price of the land and how much is the current purchaser due to be paid by the redeemer? In the clear language of the statute, ‘[a]nyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments as set forth in Section 8-8-10 (as it is now or hereinafter [sic] may be amended), and all lawful charges, also with interest as aforesaid.’ Alabama Code [1975,] § 6-5-253(a).... The statute states clearly that the redeemer must pay the purchaser the purchase price paid at sale. Here in the instant case, 600, L.L.C., is the purchaser of the aforementioned real estate. The purchase price by 600, L.L.C., was $275,000.00. Nowhere in the statute does it state that the redeemer must pay the price of the sale at the actual foreclosure sale. Therefore 600, L.L.C., is only due the amount that [it] purchased the real estate for and no more. Any other interpretation would be to create a windfall in favor of 600, L.L.C., which is clearly in violation of § 6-5-253. The Court Orders the purchase price for redemption to be $275,000.00 plus taxes and insurance. Costs are taxed to the Defendants.”

The LLC appealed.

Standard of Review

“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court’s conclusions. Greene v. Thompson, 554 So.2d 376 (Ala.1989).” Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004).

Analysis

The LLC raises several issues for this Court’s review, which can be condensed to the following two issues: (1) whether the trial court erred in concluding that “the purchase price for redemption [is] $275,000.00 plus taxes and insurance”; and (2) whether the trial court erred in failing to include interest in the calculation of the redemption price.

A. Whether the trial court erred in determining the redemption price of the 1st Street property

In this case, the following facts are undisputed: that, following AAN’s default on the promissory note, Aliant paid $511,000 for the 1st Street property at the foreclosure sale; that the LLC purchased the 1st Street property from Aliant for $275,000; and that Virani subsequently purchased from AAN the right of redemption regarding the property. The issue before this Court is which of the two prices for which the property was sold — the foreclosure sale price of $511,000 or the subsequent purchase price of $275,000 — is the relevant price in determining the redemption price. The redemption price is dictated by § 6-5-253(a), Ala.Code 1975, which provides, in pertinent part:

“(a) Anyone entitled and desiring to redeem real estate under the provisions of this article must also pay or tender to the purchaser or his or her transferee the purchase price paid at the sale, with interest at the rate allowed to be charged on money judgments as set forth in Section 8-8-10 (as it is now or hereinafter [sic] may be amended), and all other lawful charges, also with interest as aforesaid; lawful charges are the following:
“(1) Permanent improvements as prescribed herein.
“(2) Taxes paid or assessed.
“(3) All insurance premiums paid or owed by the purchaser.”

(Emphasis added.) Thus, the issue is to which “sale” is the statute referring?

The LLC argues that the sale is the foreclosure sale and that the “purchase price” is the price paid at the foreclosure sale. In support of that argument, it cites Pitts v. Gangi, supra, which presented the same issue. In Pitts, a bank foreclosed on a mortgage it held on a house and purchased the mortgaged house at the foreclosure sale for $380,000. After the foreclosure sale, the house burned down; the bank then collected $315,000 from an insurance policy on the house and sold the property to a third party for $8,500. The original owner then attempted to redeem the property and argued that the redemption amount was based on $8,500 paid at the subsequent sale, not the $380,000 paid at the foreclosure sale. This Court, while noting that the sale price should be reduced by the amount of the insurance proceeds the bank received when the house on the property was destroyed, concluded that § 6-5-253(a) referred to the sale price at the foreclosure sale, not at the subsequent sale. We stated that “both the plain meaning and the existing precedent governing this statute lead us to conclude that Pitts must pay Gangi the purchase price paid by Bank One at the foreclosure sale.” Pitts, 896 So.2d at 436. See also Dicie v. Morris, 285 Ala. 650, 653, 235 So.2d 796, 798 (1970) (holding that the redemption price was based on “the amount bid at foreclosure ... and not ... what the [subsequent purchaser] paid ... for the property”).

Additionally, the LLC argues that the word “sale,” as used in § 6-5-253(a) should be read in light of § 6-5-247, Ala. Code 1975, which states, in relevant part:

“Unless the context otherwise requires, the words defined in this section shall have the following meanings when found in this article:
“(1) Sale or Sold. Any execution, judgment, or foreclosure sale, whether the sale is made under any power of sale in any mortgage or deed of trust or statutory power of sale, or by virtue of any judgment in any court of competent jurisdiction.”

As noted, § 6-5-253(a) provides that anyone entitled to and desiring to redeem real estate under the provisions of Title 6, Chapter 5, Article 14A, Code of Alabama 1975, must pay or tender to the purchaser “the purchase price paid at the sale, with interest .... ” (Emphasis added.) The term “sale,” as used in Title 6, Chapter 5, Article 14A, Code of Alabama 1975, is defined, in pertinent part, as “[a]ny execution, judgment, or foreclosure sale.... ” § 6-5-247(1) (emphasis added). Applying the express language of the statutes quoted above, we are clear to the conclusion that, in this case, “the purchase price paid at the sale” means the purchase price paid at the foreclosure sale, see § 6-5-247(1).

Virani argues that the trial court’s judgment was not in error insofar as it determined the redemption price based on the price paid at the subsequent sale. Virani argues that he “purchased the excess amount owed to Aliant ... leaving only the amount purchased plus interest, insurance and taxes due to” the LLC. Virani’s brief, at 10. He cites no caselaw or authority, however, for that proposition, and we find no support for his argument in the applicable statutes.

In this case, Aliant purchased the 1st Street property at the foreclosure sale, extinguishing the mortgage. Any remaining deficiency on the promissory note secured by the mortgage, as sold to Virani by Aliant, is owed directly to Virani by AAN and is, thus, completely unrelated to the title to the 1st Street property, now held by the LLC.

We conclude that the trial court erred in setting the redemption price based on the price Aliant received from the LLC at the subsequent sale, $275,000, rather than on the price Aliant paid at the foreclosure sale, $511,000. Therefore, the trial court’s judgment is due to be reversed.

B. Whether the trial court erred in not including interest in the redemption price

The LLC argues that “[t]he Trial Court further erred by failing to order interest as set forth in” § 6-5-253(a), Ala.Code 1975. The LLC’s brief, at 15. As quoted above, that Code section states that the redeeming party must pay, in addition to the foreclosure-sale price of .the property, “interest at the rate allowed to be charged on money judgments as set forth in Section 8-8-10.” Virani agrees, stating

“that interest should be added to the amount to redeem at the statutory rate from the date of purchase to the filing of the Complaint for Redemption pursuant to Alabama Code [1975,] § 6-5-253(a) and § 8-8-10

Virani’s brief, at 12. Thus, because § 6-5-253(a) expressly requires the payment of interest by the person or entity redeeming the property, we direct the trial court to assess interest at the statutory rate from the date the property was purchased at the foreclosure sale.

Conclusion

Because the trial court erred in setting the redemption price under § 6-5-253(a), Ala.Code 1975, and in not including interest in the redemption price, as also required by that Code section, we reverse the trial court’s judgment and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

MALONE, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . It is unclear what Virani is referring to when he states that he purchased the “excess amount owed to Aliant.” Virani further states that he "negotiated and satisfied all deficiencies with regards to Aliant.” Virani's brief, at 5. In its brief, the LLC states:
      “On March 10, 2010, [Virani] purchased the interest of Aliant Bank in a promissory note in excess of the $511,000.00 bought at foreclosure or a note in the sum $33,246.58 (which is the balance of the note to the bank after the $511,000.00 paid at foreclosure sale was credited against the original note of $540,000.00). (R. 90-95)”
      The LLC's brief, at 9.

      . Birmingham Partners, L.L.C., did not appear to defend itself against Virani’s complaint and was later dismissed from the action without objection. See infra note 3.

      . Because the trial court’s order did not dispose of Virani’s claim against Birmingham Partners, L.L.C., or the LLC’s counterclaim against Virani, this Court remanded the case to the trial court by an order issued on November 7, 2011. On November 18, 2011, the trial court entered a final judgment dismissing Birmingham Partners, L.L.C., as a party defendant and dismissing the LLC’s counterclaim against Virani, thus making its judgment final.


source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    Ex parte MONTGOMERY COUNTY BOARD OF EDUCATION et al. (In re S.K., a minor, by and through her mother, Tertrina Capehart v. Montgomery County Board of Education et al.).
    1101401.
    Supreme Court of Alabama.
    Jan. 27, 2012.

      Mark S. Boardman and Dana Bolden Hill of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for petitioners.
    Karen Sampson Rodgers, Montgomery, for respondent.
   MAIN, Justice.

The Montgomery County Board of Education (“the Board”); its members Charlotte Meadows, Eleanor Lewis Dawkins, Mary Briers, Melissa B. Snowden, Robert Porterfield, Beverly Ross, and Heather Sellers (hereinafter referred to collectively as “the Board members”); and Elaine L. Guice, a teacher in the Montgomery County School System (“Guice”), petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion for a summary judgment as to the claims filed against them by S.K. by and through S.K’s mother, Tertrina Capehart, and to enter an order granting their summary-judgment motion. We grant the petition and issue the writ.

I. Factual Background and Procedural History

According to the complaint, on April 26, 2007, S.K., a third-grade student at Peter Crump Elementary School in Montgomery County, went into the restroom with two friends; Guice, her third-grade teacher, did not accompany them. S.K. claimed that when she attempted to leave the restroom stall, the stall door jammed. She further claimed that she attempted to climb over the door to get out of the stall but slipped and fell, cutting her face on a metal hook or hanger on the back of the door. On April 24, 2009, S.K., by and through her mother, Tertrina Capehart, sued the Board, the Board members in their official capacities, and Guice, both individually and in her official capacity, asserting claims of negligence and wantonness and seeking compensatory and punitive damages.

The Board, the Board members, and Guice filed a motion for a summary judgment. They asserted that there were no genuine issues of material fact, that Guice is immune from suit under the doctrine of State-agent immunity and that the Board and the Board members are immune from suit under the doctrine of State immunity. They also asserted that S.K. was contribu-torily negligent, arguing that her injuries were the result of her “playing” in the restroom. Additionally, they asserted that S.K. had failed to exhaust all administrative remedies available to her. On July 15, 2011, the Montgomery Circuit Court issued an order denying the summary-judgment motion. The Board, the Board members, and Guice petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate the July 15, 2011, order and to enter a summary judgment in their favor.

II. Standard of Review

“ ‘ “While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala.1996)....
“ ‘ “Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment -will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala.1998).
“ ‘ “An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat’l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992).” ’
“Ex parte Turner, 840 So.2d 132, 135 (Ala.2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)). A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: ‘ “(1) a clear legal right 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) the properly invoked jurisdiction of the court.” ’ Ex parte Nall, 879 So.2d 541, 543 (Ala.2003) (quoting Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001)).”

Ex parte Yancey, 8 So.3d 299, 303-04 (Ala.2008).

III. Analysis

A. Claims against the Board

The Board contends that it is entitled to a summary judgment because, it says, it enjoys immunity, pursuant to Art. I, § 14, Ala. Const.1901, from the tort claims alleged against it in the complaint. Although S.K. initially conceded that the Board is entitled to State immunity, in her brief to this Court she argues that “the Defendants’ immunity” is not absolute when one or more of the defendants have acted willfully, in bad faith, and beyond their authority. She then alleges that she has “provided plenty of evidence that all Defendants acted beyond their authority, acted willfully, and in bad faith.” S.K.’s argument is not well taken. For the reasons that follow, we hold that the Board is entitled to the immunity it asserted in its summary-judgment motion.

Section 14, Ala. Const.1901, provides “[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.” It is well settled in Alabama that “[ljocal school boards are agencies of the State, not of the local governmental units they serve, and they are entitled to the same absolute immunity as other agencies of the State.” Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 789 (Ala.2011). In Ex parte Monroe County Board of Education, 48 So.3d 621 (Ala.2010), this Court held:

“ ‘ “Section 14, Ala. Const.1901, provides ‘[tjhat the State of Alabama shall never be made a defendant in any court of law or equity.’ This section affords the State and its agencies an ‘absolute’ immunity from suit in any court. Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001) (stating that Ala. Const.1901, § 14, confers on the State of Alabama and its agencies absolute immunity from suit in any court); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (‘Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state....’). Indeed, this Court has described § 14 as an ‘almost invincible’ “wall’ of immunity. Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). This Vail of immunity’ is ‘nearly impregnable,’ Patterson v. Gladwin Carp., 835 So.2d 137, 142 (Ala.2002), and bars ‘almost every conceivable type of suit.’ Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Moreover, if an action is an action against the State within the meaning of § 14, such a case ‘presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent.’ Patterson, 835 So.2d at 142-43.”
‘Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004) (emphasis added). For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala.1995) (“County boards of education, as local agencies of the State, enjoy [§ 14] immunity.”). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala.1988); Hutt v. Etowah Corn ty Bd. of Educ., 454 So.2d 973, 974 (Ala.1984).’
“Ex parte Jackson County Bd. of Educ., 4 So.3d [1099,] at 1102-03 [ (Ala.2008) ].
“In Ex parte Hale County Board of Education, 14 So.3d 844 (Ala.2009), this Court revisited the issue whether county-boards of education were immune from suit, overruling Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), and Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774 (1920), and stating that ‘because county boards of education are local agencies of the State, they are clothed in constitutional immunity from suit’ and that the immunity accorded a county board of education is absolute.”

48 So.3d at 624-25. Therefore, the motion for a summary judgment based on § 14 immunity was due to be granted as to the Board and a summary judgment entered on the tort claims against the Board.

B. Claims against the Board members and, Guice in their official capacities

The Board members and Guice likewise contend that they enjoy immunity under to § 14 for the claims asserted against them in their official capacities. The Board members and Guice are correct. See Bessemer Bd. of Educ., 68 So.3d at 789 (“ ‘Not only is the State immune from suit under § 14, but “[t]he State cannot be sued indirectly by suing an officer in his or her official capacity.” ’ ” (quoting Alabama Dep’t ofTransp. v. Harbert Int’l, Inc., 990 So.2d 831, 839 (Ala.2008))); and Ex parte Dangerfield, 49 So.3d 675, 681 (Ala.2010) (holding that all claims against a State official in his or her official capacity seeking damages are barred by the doctrine of immunity). “This Court has held that the immunity afforded the State by § 14 applies to instrumentalities of the State and State officers sued in their official capacities when such an action is effectively an action against the State. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).” Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 332 (Ala.2011). “It is settled beyond cavil that State officials cannot be sued for damages in their official capacities. Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 132-33 (Ala.2002).” Ex parte Dangerfield, 49 So.3d at 681. Therefore, because the claims against the Board members and Guice in their official capacities are barred by Art. I, § 14, Ala. Const. 1901, the motion for a summary judgment as to them in their official capacities was due to be granted.

C. Claims against Gtdce in her individual capacity

Guice contends that she is entitled to State-agent immunity for the claims asserted against her in her individual capacity. Guice argues that the claims are based on acts arising from her performance of official duties and exercising discretion as a teacher for the Montgomery County Board of Education.

“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(1) formulating plans, policies, or designs; or
“(2) exercising his or her judgment in the administration of a department or agency of government, including, but not limited to, examples such as:
“(a) making administrative adjudications;
“(b) allocating resources;
“(c) negotiating contracts;
“(d) hiring, firing, transferring, assigning, or supervising personnel; or
“(3) discharging duties imposed on a department or agency by statute, rule, or regulation, insofar as the statute, rule or regulation prescribes the manner for performing the duties and the State agent performs the duties in that manner; or
“(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons; or
“(5) exercising judgment in the discharge of duties imposed by statute, rule, or regulation in releasing prisoners, counseling or releasing persons of unsound mind, or educating students.
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000).

“This Court has established a ‘burden-shifting’ process when a party raises the defense of State-agent immunity. Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala.2003). In order to claim State-agent immunity, a State agent bears the burden of demonstrating that the plaintiffs claims arise from a function that would entitle the State agent to immunity. Giambrone, 874 So.2d at 1052; Ex parte Wood, 852 So.2d 705, 709 (Ala.2002). If the State agent makes such a showing, the burden then shifts to the plaintiff to show that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. Giambrone, 874 So.2d at 1052; Wood, 852 So.2d at 709; Ex parte Davis, 721 So.2d 685, 689 (Ala.1998). ‘A State agent acts beyond authority and is therefore not immune when he or she “fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated on a checklist.” ’ Giambrone, 874 So.2d at 1052 (quoting Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)).”

Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala.2006). Additionally, as this Court recently stated:

“ ‘State-agent immunity protects agents of the State in their exercise of discretion in educating students. We will not second-guess their decisions.’ Ex parte Blankenship, 806 So.2d 1186, 1190 (Ala.2000). However, ‘[o]nce it is determined that State-agent immunity applies, State-agent immunity is withheld upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority. [Ex parte ] Cranman, 792 So.2d [392,] at 405 [ (Ala.2000) ].’ Ex parte Bitel, 45 So.3d 1252, 1257-58 (Ala.2010).”

N.C. v. Caldwell, 77 So.3d 561, 566 (Ala.2011).

S.K. attempts to analogize the facts in cases such as Caldwell and Ex parte Monroe County Board of Education, supra, to the facts in this case. In Caldwell, N.C. alleged that she was raped by a student in the boys’ locker room after gym class had ended. The trial court entered a summary judgment in favor of Caldwell, the physical-education teacher, and N.C. appealed. This Court determined that a genuine issue of material fact existed as to whether Caldwell had appointed the student who allegedly raped N.C. to serve as a student aide and, if so, whether he had exceeded his authority in doing so. In making that determination, this Court looked to the affidavits and other evidence in the record at the summary-judgment stage. In so doing, we noted that “N.C. presented evidence indicating that Caldwell had appointed A.H. to serve as a student aide in the fifth-period physical-education class and also evidence indicating that before the incident several female students had complained to Caldwell that A.H. had acted inappropriately toward them.” Caldwell, 77 So.3d at 652-63. There was also evidence in the record indicating that the school’s faculty handbook expressly provided that ‘[a]ny student not scheduled for a class should not attend that class,’ ” 77 So.3d at 569, and that Caldwell was aware of the policy because he had instructed students, on occasion even the student aide who allegedly committed the rape, to leave the gym when they were not scheduled for the class then being conducted there.

In Ex parte Monroe County Board of Education, a majority of this Court determined that the teacher, against whom claims of negligence, wantonness, and assault arising out of a spanking incident had been asserted, had not established that she was entitled to State-agent immunity; therefore, although this Court granted the board’s mandamus petition and directed the trial court to enter a summary judgment for the board, it denied the mandamus petition as to the teacher. In so doing, the majority relied on the fact that the evidence indicated that the teacher had administered corporal punishment to the student without any other employee being present, even though the board had a written policy governing corporal punishment, which included a provision that another employee be present whenever corporal punishment was being administered. The majority concluded that the teacher had exceeded the scope of her authority and that, therefore, she was not entitled to a summary judgment based on State-agent immunity.

The type of allegations present in Caldwell (the rape of a student by another student whom Caldwell had allegedly designated as a student aide and Caldwell’s ignoring other complaints from female students about the student aide’s behavior toward them) and Ex parte Monroe County Board of Education (evidence at the summary-judgment stage conclusively established that the teacher, who had violated a specific written policy of the school board by administering corporal punishment without another employee’s being present, had exceeded the scope of her authority and was not entitled to State-agent immunity) are not present in this case. Certainly, in the absence of any rule or policy of the Board to the contrary, it was well within Guice’s discretion to determine when and how to permit students in her class to take restroom breaks during the school day. The materials submitted by the parties do not indicate any policy or rule requiring a teacher to accompany students to the restroom. The evidence indicated that before the incident underlying this action S.K. had routinely gone to the restroom without a teacher’s supervision. Thus, the burden shifted to S.K. to show that Guice exceeded that discretion in allowing S.K. to go into the restroom without an adult. S.K. attempts to make such a showing by pointing to Capehart’s deposition in which Capehart stated that she had written Guice and informed her that S.K. suffered from attention deficit/hyperactivity disorder and should not be allowed to wander around the school unattended. Even assuming that Capehart did, in fact, provide that general information to Guice, it simply does not rise to the level of creating a genuine issue of material fact as to whether Guice exceeded her discretionary authority in permitting S.K. to go into the restroom without accompanying her. S.K. was not assigned to any sort of special-education program or designated by the school as needing additional monitoring, nor was Capehart advised that S.K. would, in fact, be treated differently than any other student in the general educational program at the school. Therefore, Guice is entitled to State-agent immunity as to the claims against her in her individual capacity, and her motion for a summary judgment as to the claims against her in her individual capacity was due to be granted.

IV. Conclusion

Because the Board has demonstrated that under Art. I, § 14, Ala. Const.1901, it has absolute immunity from suit on the claims asserted against it, the Board has established a clear legal right to a summary judgment on the claims asserted against it. Because the Board members and Guice have demonstrated that under Art. I, § 14, Ala. Const.1901, they are entitled to the same immunity from suit as the Board, they have established a clear legal right to a summary judgement on the claims asserted against them in their official capacities. Finally, because Guice has demonstrated that she is entitled to State-agent immunity as to the claims asserted against her in her individual capacity, she has established a clear legal right to a summary judgment on those claims. Therefore, we grant the petition and issue a -writ directing the Montgomery Circuit Court to vacate its July 15, 2011, order denying the defendants’ summary-judgment motion and to enter a summary judgment on all the claims asserted against the Board, the Board members, and Guice.

PETITION GRANTED; WRIT ISSUED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and WISE, JJ„ concur.

      . Although Cranman was a plurality opinion, the test set forth in Cranman was subsequently adopted by a majority of the Court in Ex parte Butts, 775 So.2d 173, 178 (Ala.2000).


author: MOORE, Judge. MOORE, Judge.

text:
    Ronnie Lamar STILL and Sandra Gilliland v. BANKTRUST, f/k/a BancTrust Company, Inc.
    2100285.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    Opinion on Denial of Rehearing Sept. 23, 2011.
    Certiorari Denied (as to appellant) Nov. 10, 2011 Alabama Supreme Court 1110033.
    Certiorari Denied (as to appellee) Nov. 10, 2011 Alabama Supreme Court 1101139.

      Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for appellants.
    Jeffrey Todd Stearns and Michael D. Godwin of Otts, Moore, Coale, Godwin & Stearns, Brewton, for appellee.
   MOORE, Judge.

Ronnie Lamar Still and Sandra Gilliland (“the contestants”) appeal from a summary judgment entered by the Escambia Circuit Court (“the circuit court”) on their action contesting a will and seeking to set aside certain inter vivos transfers. We affirm in part and reverse in part.

Procedural History

On December 3, 2008, BankTrust, formerly known as BancTrust Company, Inc. (“BankTrust”), filed a petition in the Es-cambia Probate Court to probate the will of John L. Still (hereinafter referred to as “Still” or “the decedent”). The decedent’s will directed that all the decedent’s property be conveyed to the John L. Still 2006 Revocable Trust (“the trust”). BancTrust Company, Inc., was named as the personal representative of the estate. BancTrust Company, Inc., was also named as the trustee of the trust. The trust was for the benefit of Still during his lifetime, with the remainder to be conveyed to the Greater Brewton Foundation (“the foundation”), a charitable organization, upon Still’s death. The probate court set a hearing on Bank-Trust’s petition to probate the will for January 6, 2009, and, on that day, it entered an order admitting the will to probate and an order granting letters testamentary to BankTrust.

On March 6, 2009, the contestants, Still’s niece and nephew, filed in the circuit court a complaint contesting the will and requesting that Still’s inter vivos transfers to the trust be set aside. The contestants alleged that Still had lacked testamentary capacity to make the will and that the will had been procured by undue influence. With regard to the inter vivos transfers, the contestants alleged, among other things, that Still had been of unsound mind when the transfers were made and that the transfers had been procured through undue influence.

After BankTrust filed a motion for a more definite statement and that motion was granted, the contestants filed an amended complaint on June 5, 2009. In the amended complaint, the contestants specified that they were challenging the transfer of Still’s house to the trust by way of a deed executed on June 1, 2006, as well as “other inter vivos transfers.” Bank-Trust answered the complaint on June 18, 2009; it also counterclaimed for attorneys fees and costs, pursuant to §§ 12-19-272 and 43-8-196, Ala.Code 1975. On July 17, 2009, the contestants filed an answer to BankTrust’s counterclaim.

On March 22, 2010, BankTrust filed a motion for a summary judgment on all the contestants’ claims, as well as eviden-tiary materials in support of its motion. On May 19, 2010, the contestants filed a brief and evidentiary submissions in opposition to the summary-judgment motion. On May 28, 2010, the contestants filed a supplemental brief and evidentiary materials. That same day, BankTrust filed a letter brief in support of its summary-judgment motion. On June 29, 2010, the circuit court entered an order granting BankTrust’s summary-judgment motion as to the claims that were based on allegations of undue influence and denying BankTrust’s summary-judgment motion as to the claims that were based on allegations of Still’s lack of testamentary capacity and that he had been of unsound mind. On July 12, 2010, BankTrust filed a motion to reconsider the partial denial of its summary-judgment motion, along with supporting evidentiary submissions. On August 16, 2010, the contestants filed a brief in opposition to the motion to reconsider. On August 30, 2010, the circuit court entered a summary judgment on the contestants’ claims that were based on allegations of Still’s lack of testamentary-capacity and that he had been of unsound mind. The circuit court specifically found that the testimony did not establish that Still had suffered from a permanent or chronic dementia so as to preclude his execution of the documents and that the contestants’ witnesses had not been present when Still executed the documents. On September 28, 2010, the contestants filed a “motion to reconsider” or for a new trial; that motion was denied on November 15, 2010. The contestants filed their notice of appeal to the Alabama Supreme Court on December 20, 2010; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975, on January 3, 2011.

Facts

Before his retirement, Still was a loan officer for BancTrust Company, Inc. Raymond F. Lynn, Jr., a trust officer for BankTrust, testified in his affidavit that, in April 2006, Still contacted him to discuss his financial affairs, including his need for a trust. Lynn stated that he and Christy A. Black, another trust officer for Bank-Trust, went to Still’s residence to discuss those matters. Lynn testified that Still decided to create a trust for his benefit during his lifetime. According to Lynn, they also discussed the need for a limited power of attorney so that the bank could transfer funds from Still’s individual retirement account (“IRA”) and sell assets to fund the trust as needed.

Lynn testified that he had asked Still what provision he wanted to make for the remainder of the trust after he died and that Still had stated that he had “done enough” for his family and that he wanted to leave it to charity. According to Lynn, they discussed various charities and Still indicated he was considering leaving a portion of his estate to his church. Lynn and Black both stated in their affidavits that Still had stated that his attorney, Everette Price, was seriously ill and that Still had therefore asked Lynn to contact Broox G. Garrett, Jr., an attorney whose firm had been local retained counsel for BankTrust, to draft the necessary documents. Lynn stated that he contacted Garrett, who agreed to meet with Still.

Lynn stated that he, Black, and Garrett met with Still in the latter part of April 2006. Garrett testified in his affidavit that he had a lengthy conversation with Still about his desire to establish a revocable trust with BankTrust as the trustee and to dispose of the remainder of his estate after his death. According to Garrett, Lynn, and Black, Still decided to leave the remainder of his estate to the foundation and not his church. Lynn stated that Still had directed Garrett to prepare trust documents and a will and that Still executed both the trust documents and the will on May 17, 2006. Lynn, Garrett, and Black were all present when Still executed the documents. Black notarized the documents, and Lynn and Garrett served as witnesses to the execution of the will. According to Garrett, at the direction of Still, he also drafted a deed conveying Still’s home to the trust and reserving a life estate for Still. Black testified that Still executed the deed on June 1, 2006, and that she notarized the deed.

Lynn testified that Still had been his friend and colleague for over 30 years and that Still was of sound mind during all the discussions that were had about the trust and the disposition of his estate as well as when he executed the trust documents and the will. Lynn further testified that Still executed the trust documents and the will freely and without interference from any party. Black testified that she had worked with Still regularly for over five years. Specifically, she testified that she had managed an agency account for Still, which had been funded from his IRA from time to time to pay for certain expenses relating to his home. She testified that Still had handled all of his other financial matters himself and had also managed his own checking account. Black testified that Still was of sound mind at the time he executed all the documents and that he had done so voluntarily and with full knowledge of the contents of each document. Garrett testified that he had been acquainted with Still for approximately 35 years and that, during their discussions of the trust and the disposition of his estate, and at the time of the execution of the trust documents and the will, Still was of sound mind and executed the documents freely. Garrett further testified in his deposition that he went over the documents with Still in layman’s terms and that he had no doubt that Still understood the terms of the trust. Garrett also testified in his deposition that Still had stated that he had done all that he intended to do for his nieces and nephews.

Sandra Gilliland, Still’s niece, testified in her affidavit that she had known Still her entire life. She testified that, because she and Still had lived in the same town, they were especially close during the last years of Still’s life. Richard Gilliland, Sandra’s husband, testified that he also had been close to Still. According to Sandra and Richard, in 2001, Still was diagnosed with cancer and underwent brain surgery. Sandra and Richard testified that Still’s health and mind began to deteriorate at that time. They stated that Still’s condition was so dire that, beginning in early 2006, he was unable to live at home by himself, so he was placed in the “Holley House.” Both Sandra and Richard stated that, from their personal observations, they did not believe that, on May 17, 2006, Still could have possibly been aware of and could have sufficiently recalled the extent of his property and other assets or the names and locations of his living relatives, and they did not believe that Still could have understood the nature and consequences of executing a will and complicated trust documents.

Riley Edwards testified in his deposition that he had met Still at BankTrust in the 1970s but that they did not become friends until a year or two after Edwards retired in April 2001. He testified that he, Still, and another man ate dinner at a Texas Roadhouse restaurant once a week. He testified that sometimes John David Finley would join them. He testified that, a couple of years after they became friends, Still became unable to order or to pay for his meal at the restaurant. He testified that a year or so before Still went to live at the Holley House, Still would forget that they were supposed to go eat even after Edwards had called him and told him earlier that same day.

Edwards stated that Still had to go live at the Holley House because he could not remember what medications he was supposed to take and that, at the Holley House, Ms. Holley administered Still’s medications to him. He testified that, at the time he went to live at the Holley House, Still’s memory had gotten worse. Edwards testified that he visited or called Still twice a week at the Holley House. He testified that, from February 2006 until June 2006, Still’s mental and physical conditions worsened. He testified that Still’s mental condition was such that he did not believe that Still would have understood his financial affairs. He testified that there had been a few situations when he felt like people had taken advantage of Still with regard to business transactions. He testified that Still had told him that Black handled most of his bills. He testified that he did not think that Still would have had the ability to write his own checks, pay his own bills, and handle matters at his house. After counsel for Bank-Trust showed Edwards copies of checks written by Still, Edwards stated that Still would have written a check for whatever amount he was told to write and that it was his opinion that Still had lacked the ability to handle his financial affairs. He admitted, however, that he did not know what Still’s state of mind was on the date Still executed the will and the trust documents.

Edwards testified that, on one occasion, he went by the Holley House to visit Still and that there were two men there with Still. He testified that, when he went back to the house later, Still had stated that the men were from the bank and that they had been discussing something to do with his trust, but he was not sure what.

Alma Dailey testified in her deposition that she had known Still for most of his life. She testified that she had worked with Still at BankTrust and had remained friends with Still after he retired. She testified that, after the 2001 surgery, Still was disoriented and that his condition had deteriorated with time. She testified that he had been unable to find the cafeteria in the hospital to pick up his meals. She testified that people took advantage of Still with regard to his money.

Dailey testified that she saw Still regularly until he went to live at the Holley House and that she had seen him only twice after that. She testified that the first time she saw him at the Holley House was in the first several months after he went to live there and that, on that occasion, his mental condition was no better and he did not seem capable of handling his affairs competently or of understanding to whom he wanted to leave his estate. She testified that, in her opinion, Still would probably have agreed to anything and that he was easily swayed and easily coached in a certain direction.

Dailey testified that Still had told her that Finley had asked him about leaving his estate to the foundation and that Still had told her that he was not interested in doing that because his attorney, Price, had already drafted his will. She testified that Still had told her that he wanted Sandra to have his house. She later testified that he had told her that he wanted Sandra to have all that he had.

Dailey admitted that she did not know what Still’s intentions were with regard to his estate in May 2006 and that there were times when his mental state was worse than at other times. She testified, however, that she would question whether, during February 2006 and May 2006, Still knew what he was doing. She testified that there was no way Still would have had the mental capacity to process the trust documents in April 2006.

Still’s medical records indicate that Still was seen on January 18, 2006, by Dr. Gary E. Gerhard, a neurologist at the Medical Center Clinic, for difficulties with his gait and mentation. Dr. Gerhard noted that Still was oriented to his name, the date, and the last three presidents of the United States. He also noted, however, that Still could not subtract 7 from 100, that he could not remember the names of some of his medications, and that he was a poor historian. He further noted that Still could not recall any of three items after three minutes and that he had difficulty in initially understanding the request. Still was seen again on January 25, 2006, and, again, he was unable to subtract 7 from 100 and could not recall the names of any of his medications. Dr. Gerhard noted that the “differential” diagnosis included multiple small strokes and multi-farct gait apraxia and dementia.

Dr. Roman Kesler, a neurologist who practices in the group at the Medical Center Clinic, testified in his deposition regarding his review of Dr. Gerhard’s notes. Dr. Kesler testified that the January 18, 2006, note about issues with mentation could mean anything from behavior to mood to memory but that the fact that Still did not remember three items after three minutes was suggestive of a problem with short-term memory. Based on his review of the notes, Dr. Kesler testified that Still was having some issues with thinking and cognition and that it appeared the major problem was dementia. Dr. Kesler testified that, by January 25, 2006, Dr. Gerhard’s diagnosis of Still was that he had a degenerative organic brain disorder related to dementia. He testified that Still’s problems were to the point that Dr. Gerhard included dementia as a diagnosis. Dr. Kesler testified that the condition that Still was in at that time typically progresses.

Dr. Kesler testified that it could be difficult for someone to understand the mental acuity of a person with Still’s diagnosis if that person had limited contact with the patient and that it would not be unusual for someone not to notice that the patient was having mental-acuity issues. He also testified that the diagnosis of dementia did not mean that Still had been rendered incompetent. He also testified that Still could have been perfectly lucid on certain occasions. He testified that, if Still had been totally incompetent, Dr. Gerhard would have made a referral for a guardian or a competency proceeding and that it did not appear that he had done so. He testified that there was nothing in Dr. Ger-hard’s medical records to cause him to say that, with a reasonable degree of medical certainty, Still lacked the capacity to execute a deed or a will three months after the date of the medical records.

Standard of Review

‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “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.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 689 So.2d 1349, 1850 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

I.

On appeal, the contestants first argue that the circuit court erred in entering a summary judgment on the will contest because, they say, there was a genuine issue of material fact regarding whether Still possessed testamentary capacity at the time he executed the will.

“Section § 38.04 of the Alabama Pattern Jury Instructions provides:
“ ‘MENTAL CAPACITY-DEFINITION
“ ‘The law presumes that every person of legal age has sufficient mental capacity to make a valid will.
“‘A person may be feeble, weak-minded or capricious and still have (mental) (testamentary) capacity to make a will if he is able to have a decided and rational desire as to the disposition of his property.
“ ‘The court will now define what is required to have the mental capacity to make a will, which is known as testamentary capacity.
“‘The testator must have at the time of the execution of the will memory of mind sufficient to recall and understand:
“‘1. The property he is about to bequeath or devise.
“ ‘2. The objects of his bounty.
“‘3. The disposition he desires to make of his property.
“ ‘4. The nature and consequences of the business to be performed.
“ ‘5. The relation of these elements to each other.’
“2 Alabama Pattern Jury Instructions Civil § 38.04 (2d ed. 1993) (emphasis added). See also Ex parte Helms, 873 So.2d 1139, 1147 (Ala.2003) (“‘Simply stated, if the testator knows his estate and to whom he wishes to give his property and understands that he is executing a will, he has testamentary capacity. A person may execute a valid will, even if he or she is not competent to transact ordinary, everyday affairs.” ’ (quoting Smith v. Vice, 641 So.2d 785, 786 (Ala.1994))); Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978); and Horton v. Rasberry, 852 So.2d 155 (Ala.Civ.App.2002). The evidentiary standard to establish testamentary capacity is very low. Smith v. Vice, 641 So.2d at 786 (recognizing that the showing required to establish testamentary capacity is not a high one).”

Denson v. Moses, 2 So.3d 847, 851 (Ala.Civ.App.2008).

“In Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978), the Court described in detail the broad evidentiary inquiry that must be made when testamentary capacity is at issue:
“ ‘ “Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached.”
‘“[Tucker v. Tucker, 248 Ala. 602, 610, 28 So.2d 637, 644 (1946).] Thus, evidence offered as to the mental and physical condition of the testatrix, either before or immediately after execution of the will, is admissible since it tends to indicate her condition when the will was signed. Likewise, testimony regarding the testatrix’s “conversations, deportment, acts, and appearance” has been found to be competent on the issue of testamentary capacity.’
360 So.2d at 318 (citations omitted). The Fletcher Court also noted that the reasonableness of a will’s provisions, when considered in light of the state of family relationships, may reflect on the testatrix’s capacity to recall the objects of her bounty.”

Allen v. Sconyers, 669 So.2d 113, 117-18 (Ala.1995).

“<“[T]he burden is on the contestant to show incapacity at the time the will was made and insanity prior to that time, unless of a permanent character, raises no presumption of insanity at the time the will was made.” ’
“Fletcher [v. DeLoach ], 360 So.2d [316,] 318 [ (Ala.1978) ], quoting King v. Aird, 251 Ala. 613, 617, 38 So.2d 883, 887 (1949). Accordingly, the burden ‘can only be discharged or shifted by showing prior habitual or fixed insanity, or actual insanity, or other incapacity at the date of the instrument.’ Eastis [v. Montgomery ], 95 Ala. [486,] 494, 11 So. [204,] 211 [ (1892) ].”

Smith v. Vice, 641 So.2d 785, 786-87 (Ala.1994).

The contestants cite Denson v. Moses, 2 So.3d at 851, and Ex parte Helms, 873 So.2d 1139 (Ala.2003), in support of their argument that there is a genuine issue of material fact on the issue of testamentary capacity. In Denson, this court held that there was a genuine issue of material fact as to testamentary capacity based on the equivocal testimony of the doctor questioning the testator’s competency although the attorney who had prepared the will testified that the testator was capable of executing the will. In Ex parte Helms, the evidence indicated that the testator had consumed Lortab, a prescription pain medication, before and after the date she executed her will, and that consuming Lortab affected the testator’s mental ability. 873 So.2d at 1145-46. The Alabama Supreme Court held that that evidence was sufficient to rebut the legal presumption in favor of the testator’s testamentary capacity and to create a genuine issue of fact. 873 So.2d at 1147-48. The supreme court noted that, although the proponents of the will testified that the testator appeared to be of sound mind, that conflicting evidence did not eliminate the question of fact. 873 So.2d at 1148.

We agree with the contestants that the holdings in Denson and Helms mandate a reversal in this case. In the present case, Sandra and Richard testified that Still’s mental condition had deteriorated such that they did not believe that Still could have possibly been aware of and could have sufficiently recalled the extent of his property and other assets or the names and locations of his living relatives on May 17, 2006, and that they did not believe that Still could have understood the nature and consequences of executing a will and the complicated trust documents. Edwards testified that Still’s mental state had declined so much that he could not remember how to order a meal at a restaurant and could not pay his bill without assistance. Dailey testified that Still did not seem capable of handling his affairs competently or of understanding to whom he wanted to leave his estate. Further, although Dr. Kesler could not testify to a degree of medical certainty that Still lacked the capacity to execute a deed or a will three months after the date of the medical records, the medical records indicated that Still was having significant memory problems and had been diagnosed with dementia. Dr. Kesler testified that dementia typically does not improve but that, in fact, it worsens over time.

Based on Denson and Helms, we conclude that the foregoing evidence was sufficient to rebut the presumption that Still possessed testamentary capacity. Although Lynn, Black, and Garrett testified that Still was of sound mind when he executed the will, that testimony does not eliminate the issue of fact, the resolution of which is for a jury. We also note that the fact that Still’s will provided for a different distribution than what Still had previously represented to Dailey was his intention could be considered by the jury in determining whether he possessed testamentary capacity. See Allen, 669 So.2d at 117.

BankTrust cites Sanders v. Brooks, 611 So.2d 336 (Ala.1992), in support of its position that the trial court did not err in entering a summary judgment in its favor. In Sanders, the supreme court held that the trial court had not erred in granting the proponents of a will a new trial. The supreme court reasoned:

“The testimony of [the testator’s neighbor] and [the doctor who examined the testator] merely establishes that [the testator] was in mental decline; it does not prove that she was in dementia at the time she planned and executed her will. [The attorney who drafted the will] and his secretary were the only witnesses who actually observed [the testator] during this period; thus, their testimony must be afforded greater weight.”

611 So.2d at 338.

Sanders is distinguishable from the present case, however, because several witnesses in the present case specifically testified that Still lacked the capacity to make a will, not just that Still was in a mental decline. The supreme court made it clear in Allen, 669 So.2d at 117-18, that the testimony of the attorney who drafts a will is valuable evidence but that it must be weighed against all the other evidence, which is the responsibility of the jury. Thus, even considering Sanders, we conclude that a fact issue exists on the issue of testamentary capacity.

Based on the foregoing, we reverse the judgment of the circuit court on the will contest with regard to issue of testamentary capacity.

II.

The contestants next argue that the circuit court erred in entering a summary judgment on their will contest and their request to set aside the inter vivos transfers because, they say, they submitted sufficient evidence to establish a presumption of undue influence and because there is a genuine issue of material fact as to whether Still was subjected to undue influence.

“A presumption of undue influence arises when: (1) there is a confidential relationship between a favored beneficiary and the testator, (2) the influence of the beneficiary is dominant and controlling in that relationship, and (3) there is undue activity by the beneficiary in procuring the execution of the will.” Hayes v. Apperson, 826 So.2d 798, 802 (Ala.2002). “In proving undue influence with respect to a deed, one needs to demonstrate only the first two elements of undue influence: (1) that a confidential relationship existed between the donor and the beneficiary, and (2) that the beneficiary has exercised a dominant and controlling influence over the donor.” Id. at 805.

In the present case, the beneficiary of the will and the deed is the foundation. We note, however, that there is no evidence indicating that a confidential relationship existed between Still and the foundation or that the foundation exercised a dominant and controlling influence over Still. Additionally, with regard to the will, there is no evidence indicating that the foundation conducted any undue activity in procuring the execution of the will. Accordingly, it is clear that the contestants have failed to prove the necessary elements of undue influence, and, thus, we conclude that the circuit court did not err in entering a summary judgment with regard to the contestants’ claim of undue influence.

The contestants argue that because the will named BankTrust as the personal representative and the trust named Bank-Trust as the trustee, BankTrust can be considered a beneficiary of the will and the deed. As BankTrust points out in its brief to this court, however, the contestants fail to cite any law in support of their argument. “ ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.’ ” Hall v. Hall, 903 So.2d 78, 80 (Ala.2004) (quoting City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998)).

Conclusion

Based on the foregoing, we reverse the judgment of the circuit court to the extent that it entered a summary judgment in favor of BankTrust on the will contest on the issue of testamentary capacity, and we remand this cause for further proceedings. We affirm the judgment in all other respects.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

On Application for Rehearing

MOORE, Judge.

On application for rehearing, Ronnie Lamar Still and Sandra Gilliland (“the contestants”) argue that this court erred in concluding that they had failed to argue that John L. Still (hereinafter referred to as “Still”) lacked the capacity to make the inter vivos transfers at issue in this case.

Specifically, the contestants first argue that they substantially complied with Rule 28, Ala. R.App. P., by “cit[ing] the Court to appropriate parts of the record, authorities and argument in support of their contention that the trust and deed in this case should be set aside” and by arguing in their brief to this court that Still did not have capacity with regard to all the documents at issue — the will, the trust documents, and the deed transferring title to Still’s house to the trust. They cite four specific parts of their brief on original submission to this court, in which they referenced the trust or “the documents” in their argument regarding capacity.

The contestants next argue that they used the term “testamentary capacity” in their brief on original submission when referring to Still’s capacity to execute the will, the trust documents, and the deed because “all the documents were prepared and signed in furtherance of [Still’s] general testamentary scheme.” Citing secondary sources, they argue further that a revocable trust, such as the one in the present case, is a testamentary trust. They also point out that the legal standard for capacity to execute a deed (which they did not set forth in their brief on original submission to this court) is one of- the elements of the legal standard for capacity to execute a will.

The contestants further argue that, because the will contains a “pour-over” provision to the trust, the will, the trust, and the deed are so intertwined that to set aside one without setting aside the- others would frustrate the positions and goals of both parties. They also argue that the facts and arguments regarding Still’s capacity are the same for the will, the trust documents, and the deed and that the parties and the trial court considered all the documents together throughout the litigation.

Having considered all the contestants’ arguments on rehearing, we conclude that their application for rehearing is due to be overruled. Our supreme court held in Queen v. Belcher, 888 So.2d 472, 477 (Ala.2003), and reiterated in Belcher v. Queen, 39 So.3d 1023, 1038 (Ala.2009), that “[a] trust agreement is an inter vivos conveyance of property, and is, therefore, subject to the [competency] standard governing conveyances” as opposed to the standard for capacity governing wills. In the contestants’ original brief to this court, they failed to cite caselaw governing the capacity required to make the inter vivos transfers evidenced by the trust documents and the deed in violation of Rule 28, Ala. R. App. P. Thus, this court properly declined to consider any argument that Still lacked the capacity to execute the trust documents or to effectuate the inter vivos transfer by deed of title to Still’s house to the trust. City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998) (“When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.”).

APPLICATION FOR REHEARING OVERRULED.

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

THOMPSON, P.J., concurs in the result, without writing.

      . The contestants also filed a request to transfer the will-contest proceedings to the circuit court. As noted previously, the will contest had already been filed in the circuit court. The circuit court apparently treated that request as a petition to remove the administration of the estate to the circuit court, and it granted that request on March 19, 2009.

      . In the order denying the contestants’ post-judgment motion, the trial court purported to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. We note that because the only claim still pending was BankTrust’s counterclaim seeking attorney fees and costs pursuant to §§ 12-19-272 and 43-8-196, Ala. Code 1975, that certification was unnecessary. See Blankenship v. Blankenship, 963 So.2d 112, 114 n. 2 (Ala.Civ.App.2007) ("[A]n unadjudicated claim for an attorney’s fee does not affect the finality of a judgment.”); and McGough v. G & A, Inc., 999 So.2d 898, 903 (Ala.Civ.App.2007) (”[T]he failure of a trial court to specifically reserve jurisdiction over [Alabama Litigation Accountability Act] claim in a summary-judgment order impliedly disposes of the claim.”).

      . The record does not indicate what the "Holley House” is; we assume that it is an assisted-living facility or nursing home. It appears from the record that all discussions regarding, as well as 'the execution of, the will, the trust documents, and the deed took place at the Holley House.

      . As noted previously, the contestants also asserted in the trial court that Still was of unsound mind and therefore lacked the capacity to make the inter vivos transfers. The contestants have not, however, made any argument as to this issue on appeal; therefore, we consider that issue waived. Sexton v. Bass Comfort Control, Inc., 63 So.3d 656, 664 (Ala.Civ.App.2010) (" ‘ "An argument not made on appeal is abandoned or waived.” ’ ” (quoting Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007), quoting in turn Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003))).