author: STUART, Justice.

text:
    EB INVESTMENTS, L.L.C. v. PAVILION DEVELOPMENT, L.L.C., et al. Pavilion Development, L.L.C. v. JBJ Partnership et al.
    1091666 and 1091667.
    Supreme Court of Alabama.
    Aug. 5, 2011.
    Elizabeth T. Cvetetic, Huntsville, for appellant/cross-appellee EB Investments, L.L.C.
    H. Carey Walker III of Adams & Walker, P.C., Huntsville, for appellee/cross-ap-pellant Pavilion Development, L.L.C.
    Robert C. Gammons of Stephens, Milli-rons, Harrison & Gammons, P.C., Huntsville, for appellees JBJ Partnership, Pace Properties, James E. Pace, James P. Pace, and William Byron Pace.
    F. Page Gamble, Birmingham, for appel-lee Atlantis Development Company, Inc.
   On Rehearing Ex Mero Motu

STUART, Justice.

This Court’s opinion of June 17, 2011, is withdrawn, and the following is substituted therefor.

EB Investments, L.L.C. (“EB Investments”), and Pavilion Development, L.L.C. (“Pavilion”), have filed separate appeals challenging elements of an order entered by the Madison Circuit Court holding that Pavilion was entitled to redeem certain property in Madison County in which EB Investments and multiple other parties held legal interests. We consolidated the appeals for the purpose of writing one opinion. We now dismiss both appeals.

I.

This action was initiated on March 21, 1997, when Pavilion, then operating as John Lary, L.L.C., initiated an action to redeem 19 acres of land purchased by JBJ Partnership (“JBJ”) at a foreclosure sale on March 22, 1996. In the years since, this Court has issued three opinions deciding various issues stemming from Pavilion’s attempted redemption of that property. See Pavilion Dev., L.L.C. v. JBJ P’ship, 979 So.2d 24 (Ala.2007); EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502 (Ala.2005); and Ex parte Atlantis Dev. Co., 897 So.2d 1022 (Ala.2004). Additional facts describing the background of this dispute can be found in those opinions; however, the basic facts are as follows.

In August 1991, James E. Pace, James P. Pace, and William B. Pace (“the Pace family”), doing business as Pace Properties (“Pace”), sold approximately 22 acres of unimproved property in Madison County to Gallop Enterprises, Inc. (“Gallop”), a development company operated by Richard Tracey. The transaction was financed by Pace and in exchange for the land Gallop gave a promissory note secured by a mortgage on the property to Pace in the principal sum of $1,735,000. Gallop then obtained additional financing from Ben H. Walker, Inc. (“Walker”), to develop a subdivision on the property, and in return Gallop gave Walker a second mortgage on the property with a principal value of $149,999. Gallop thereafter began developing the planned subdivision; however, after completing the first phase of the project and paying Pace approximately $295,990 obtained from sales of lots in the subdivision, Gallop had exhausted the funds advanced by Walker and could not proceed with the second phase of the subdivision project. Under the threat of foreclosure, Gallop filed a petition for bankruptcy pursuant to Chapter 11 of the Bankruptcy Code.

In April 1995, under the supervision of the bankruptcy court, the parties reached a settlement agreement wherein Gallop stipulated that it owed $1,439,010 to Pace and $149,999 to Walker. Pace also agreed to loan Gallop up to an additional $200,000 so that Gallop could complete development of the property and could then pay its debts to Walker and Pace with proceeds obtained from selling developed lots in the subdivision. In conjunction with the settlement agreement, Gallop executed 3 new mortgages on the 19 acres left in the development tract, which mortgages had the following priority: 1) a mortgage in favor of Pace securing a $200,000 loan (“the development mortgage”); 2) a mortgage in favor of Walker securing the $149,999 note; and 3) a mortgage in favor of Pace securing the $1,439,010 loan. The settlement agreement and the new mortgages were all then recorded in the Madison County Probate Judge’s Office.

By December 1995, Gallop was again in default on its obligations, and Pace instituted foreclosure proceedings. On March 22, 1996, the property was sold to JBJ — a new partnership made up of the Pace family — at a foreclosure auction for $100,000. The Pace family thereafter paid off the Walker note and continued developing the property on its own, conveying parcels and interests in the property as follows:

1) On June 6, 1996, JBJ conveyed a permanent drainage easement over a portion of the property to the City of Huntsville.
2) On June 10, 1996, JBJ conveyed one lot to Asghar D. Pourhassani.
3) On September 20, 1996, JBJ conveyed two lots to Atlantis Development Company, Inc. (“Atlantis”). Atlantis thereafter executed multiple mortgages on that property in favor of Jacobs Bank and JBJ.
4) On January 16, 1997, JBJ conveyed another lot to Atlantis, which lot Atlantis resold to Fritz and Louise Nelson on that same day.

On March 1, 1997, Gallop, acting through Tracey, sent a letter to JBJ stating that Gallop intended to exercise its statutory right of redemption, see § 6-5-247 et seq., Ala.Code 1975, and to redeem the 19 acres it had lost in foreclosure. Gallop accordingly requested that JBJ provide it with an itemized statement of the lawful charges it would need to pay to complete the redemption and simultaneously requested that JBJ loan Gallop those funds. On March 9, 1997, Gallop sent similar notices requesting statements of lawful charges to Pourhassani and Atlantis. On March 13, 1997, after JBJ had advised Tracey that it did not recognize his authority to exercise Gallop’s right of redemption, Tracey transferred Gallop’s right of redemption to Pavilion, a company operated by his former brother-in-law John Lary and then still known as John Lary, L.L.C., in return for $1,000.

On March 21, 1997, Pavilion initiated this litigation by filing a redemption action in the Madison Circuit Court. Both before and after filing suit, Pavilion continued to make requests for statements of charges from assorted parties with interests in the property, and some produced the requested statements. Over the following months and years, a host of counterclaims, cross-claims, and separate lawsuits encompassing all manner of contract and tort claims were filed by various parties who had interests in the property or who were otherwise drawn into the dispute. This Court has already considered some of the issues related to those claims beginning with Ex parte Atlantis Development, in which we denied a petition for a writ of mandamus filed by Atlantis in a separate action initiated in February 2003 by JBJ and Pace claiming that Atlantis had defaulted on promissory notes secured by mortgages on the property it had purchased from JBJ. In EB Investments, we reversed in part a judgment issued in yet another separate action, this one filed in January 2004 by EB Investments (which now owned the mortgages Atlantis had originally executed in favor of Jacobs Bank) seeking to eject Atlantis from the lots Atlantis had purchased from JBJ in September 1996. Finally, in August 2007, we decided an appeal in the instant action in which we reversed a summary judgment entered by the trial court in favor of JBJ and against Pavilion, holding that the trial court had erred when it concluded that Tracey lacked the authority to transfer Gallop’s right of redemption to Pavilion and holding that Pavilion did in fact hold the right to redeem the 19 acres at issue. See Pavilion Development, 979 So.2d at 37. We remanded the cause to the trial court for further proceedings, and, from March 1 through March 5, 2010, the trial court held a bench trial limited to deciding Pavilion’s redemption claim. On May 27, 2010, the trial court entered its amended final judgment, which summarized the court’s conclusions as follows:

“In summary, the court finds that [Pavilion] is entitled to redeem the property described in its original complaint.- In order to perfect and complete its redemption, Pavilion must deposit into the office of the Clerk of the Circuit Court of Madison County, Alabama the sum of $3,770,348.90, plus all accruing interest and delinquent fees from March 10, 2010, to the date of payment, within 30 days from the date of this judgment. [Pavilion] shall be entitled to a credit against this sum for all monies it placed on deposit with the Clerk of Circuit Court of Madison County following [Pavilion’s] filing of this suit, including accrued interest. Upon payment into court of all sums required, each of the current title holders of the property to be redeemed shall deliver to the Clerk of the Circuit Court a deed conveying all of the transferors’ right, title and interest in each lot or parcel of property to [Pavilion] and shall be paid by the Clerk all sums due in accordance with this judgment. Specifically, upon redemption as set forth in this order, the Clerk is directed to distribute the funds as follows:
“a. $2,804,472 jointly to [the Pace family];
“b. $930,001 to [Atlantis];
“c. $35,875.99, plus all accruing interest and delinquent fees from March 10, 2010, to the date of payment to the Tax Collector of Madison County, Alabama.
“If [Pavilion] fails to pay all sums required by this order within 30 days from this judgment, [Pavilion] will be held to have forever waived its right to redeem the subject property. Should any posttrial motion or notice of appeal be filed in this case, all times stipulated herein shall be stayed pending resolution of such posttrial motions or appeal subject, however, to the continuation of interest on all sums due at the same rates as set forth herein, plus all accruing interest and delinquent fees from March 10, 2010 to the date of payment. All other claims for relief not specifically addressed herein are denied. Costs are taxed as paid.”

On July 30, 2010, the trial court denied the remaining postjudgment motions and certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. EB Investments and Pavilion each now appeal that judgment.

II.

EB Investments and Pavilion take opposing sides on most of the legal issues in this case; however, they both argue that the trial court’s judgment is not an appeal-able judgment because it does not address all the pending issues and resolve all the pending claims in this case. JBJ and the Pace family, which have filed a response to both appeals, argue that the trial court’s order is sufficient and urge this Court to end this long-running dispute. For the reasons that follow, we dismiss these appeals and offer the following guidance to the trial court to help expedite a resolution in this case.

On January 23, 1999, the trial court entered an order severing Pavilion’s redemption claim from the other cross-claims, counterclaims, and third-party claims that had been filed in the action. JBJ and the Pace family argue that the trial court acted within the wide discretion granted it by Rule 42(b), Ala. R. Civ. P., in doing so and that the trial court’s order should accordingly be viewed as a final judgment subject to immediate appeal, explaining:

“By entering this order, the trial court intended to address the claims and issues raised by the Pavilion complaint seeking to exercise the right of redemption first before turning to the other claims filed later. Logically, this was a wise decision in that the other claims were dependent upon whether or not Pavilion indeed had the right to redeem and, if it did, whether or not Pavilion would actually choose to exercise that right by making all payments found by the trial court to be due.”

(JBJ and the Pace family’s brief in case no. 1091667, pp. 39-40.) See also Ex parte Humana Med. Corp., 597 So.2d 670, 671 (Ala.1992) (“The trial court has wide discretion in ordering separate trials and in severing claims, and the trial court’s decision in that regard will be reversed only if it abused that discretion. Ex parte R.B. Ethridge & Associates, Inc., 494 So.2d 54 (Ala.1986). ‘[A]bsent an abuse of discretion, the trial court will be allowed to “shape the order of trial” through the provisions of Rule 42, [Ala. R. Civ. P.].’ Ex parte Marcrum, 372 So.2d 313, 315 (Ala.1979). See, also, Black v. Boyd, 251 F.2d 843 (6th Cir.1958). Likewise, when claims have been severed pursuant to Rule 21, [Ala.] R. Civ. P., the trial judge has even more discretion to ‘shape the order of trial.’ ”). We agree with JBJ and the Pace family that the trial court had the discretion to order an initial trial on Pavilion’s redemption claim. Accordingly, the trial court did not exceed its discretion by declining to resolve all the pending claims, including the dispute between EB Investments and Atlantis, “until such time as Pavilion has either perfected or waived its right to redeem [the property].”

However, a judgment on Pavilion’s redemption claim should fully resolve that claim and resolve all outstanding issues concerning lawful charges and revived liens so that Pavilion can make an informed decision as to whether it wishes to complete redemption of the property or forever waive that right. The trial court’s judgment fails to do so in at least three respects. First, the trial court’s judgment fails to address the City of Huntsville’s interest in the property. Huntsville obtained from JBJ a permanent drainage easement over a portion of the property on June 6, 1996, and is accordingly entitled to compensation for that interest if Pavilion redeems the property. Pavilion may not elect to forgo redemption of Huntsville’s interest while redeeming the rest of the property because “[t]he law does not allow piecemeal redemption, absent an agreement providing for it,” Costa & Head (Birmingham One), Ltd. v. National Bank of Commerce of Birmingham, 569 So.2d 360, 363 (Ala.1990), and there is no evidence indicating that the mortgage foreclosed upon contained a provision allowing for piecemeal redemption. It is unclear if Huntsville constructed any improvements to the property in accordance with its interest for which it would be due compensation, and, if it did not, the trial court may well find, as it did with the property held by Pourhassani (who also submitted no evidence of improvements to the lot he owned), that the sum set out as being due JBJ necessarily included the amount required to redeem Huntsville’s interest also. In that case, the specific amount due Huntsville from the sum awarded JBJ could be determined after Pavilion elects to complete redemption of the property, if it in fact does so. However, in light of the possibility that Huntsville could be entitled to some compensation directly from Pavilion for lawful charges, its interest should be addressed by the trial court before we consider an appeal of a judgment deciding the redemption claim.

Similarly, the trial court’s order fails to award any compensation to the Nelsons, who, on January 16, 1997, purchased a lot from Atlantis that Atlantis had earlier purchased from JBJ. The trial court declined to award any compensation to the Nelsons because of a settlement agreement entered into by the Nelsons and Pavilion whereby Pavilion agreed not to redeem the Nelsons’ lot and the Nelsons agreed not to pursue any claims against Pavilion. However, as noted supra, “[t]he law does not allow piecemeal redemption.” Costa & Head, 569 So.2d at 363. As this Court further explained in Shealy v. Golden, 897 So.2d 268, 272-73 (Ala.2004):

“Once one or more tracts of land are sold at a foreclosure sale, the manner in which those tracts are divided up determines the units in which those tracts ‘may and must’ be redeemed. Redemption must be made in such units; therefore, piecemeal redemption of a portion of that unit is prohibited.”

(Footnote omitted.) At the foreclosure sale on March 22,1996, the property Pavilion now seeks to redeem was sold to JBJ as a single 19-acre unit for $100,000. Thus, notwithstanding the fact that JBJ later began parceling off the property, Pavilion is required to redeem the entire 19-acre tract if it wishes to redeem the property at all. The trial court indicated in its judgment that the Nelsons properly and timely provided Pavilion with a statement of charges. Following the dismissal of these appeals, the trial court should accordingly calculate the lawful charges Pavilion would owe the Nelsons in order to complete redemption of their lot.

Finally, the trial court’s order stated that the development mortgage Gallop executed in favor of Pace as part of the April 1995 settlement agreement would be revived upon redemption and thereafter remain a superior lien upon the property. See § 6-5-248(d), Ala.Code 1975 (stating that, when “any [party] redeem[s], all recorded judgments, recorded mortgages, and recorded liens in existence at the time of the sale, are revived against the real estate redeemed and against the redeeming party....”). However, the trial court did not determine the balance of the loan secured by the development mortgage. The April 1995 settlement agreement originally capped the balance at $200,000; however, JBJ and the Pace family argue that the agreement was later modified, and they claim that the balance due is now $282,778. Pavilion asserts that the balance is only $154,386. Pavilion argues that the trial court’s failure to decide the balance due on the loan secured by the development mortgage would likely result in a subsequent foreclosure action involving issues intertwined with the issues in this case and that the trial court’s Rule 54(b) certification was accordingly improper. We agree that the trial court should rule on this issue before we consider an appeal of the other elements of the trial court’s judgment. Doing so will not only lessen the risk of future litigation involving these issues, but also allow Pavilion to make its decision whether to redeem the property with full knowledge of the liabilities it would be assuming by doing so.

III.

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App.1996)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004).”

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006). For the reasons set forth above, we hold that the trial court exceeded its discretion in certifying its judgment as final pursuant to Rule 54(b) and thus proper for an immediate appeal. Accordingly, these appeals are dismissed.

ON REHEARING EX MERO MOTU: OPINION OF JUNE 17, 2011, WITHDRAWN; OPINION SUBSTITUTED; 1091666 — APPEAL DISMISSED; 1091667 — APPEAL DISMISSED.

WOODALL, PARKER, SHAW, and WISE, JJ., concur.

      . There has been much dispute among the parties as to whether both the requests and responses were timely.

      . Atlantis has previously filed a cross-claim against JBJ and its individual partners in this action alleging that they had fraudulently failed to disclose the existence of an outstanding right of redemption.

      .EB Investments’ sole member is the wife of an attorney who had formerly represented Pace and Atlantis and who was himself named as a defendant in this action in a cross-claim filed by Atlantis alleging that he had failed to inform it of the outstanding right of redemption.


source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    MATADOR HOLDINGS, INC., d/b/a Davis-Dyar Supply Company v. HOPO REALTY INVESTMENTS, L.L.C. HoPo Realty Investments, L.L.C. v. Matador Holdings, Inc., d/b/a Davis-Dyar Supply Company.
    1091700 and 1091790.
    Supreme Court of Alabama.
    Aug. 5, 2011.

      Elizabeth McAdory Borg of McAdory Borg Law Firm PC, Auburn, for appellant/cross-appellee Matador Holdings, Inc., d/b/a/ Davis-Dyar Supply Company.
    Russell C. Balch of Akridge & Balch, P.C., Auburn, for appellee/cross-appellant HoPo Realty Investments, L.L.C.
   MAIN, Justice.

Matador Holdings, Inc., d/b/a Davis-Dyar Supply Company (“Matador”), and HoPo Realty Investments, L.L.C. (“HoPo”), have filed separate appeals challenging elements of an order entered by the Lee Circuit Court in a proceeding involving commercial property owned by HoPo. Matador, which is in the business of selling building materials, sued HoPo and HoPo’s lessee, Stratford Plastic Components of Alabama (“Stratford”), seeking payment for materials and services Matador provided Stratford at commercial property owned by HoPo. The issues at trial and to be resolved on appeal center around a materialman’s lien and a claim of unjust enrichment. We consolidated the appeals for the purpose of writing one opinion.

Factual Background and Procedural History

On or about December 12, 2008, Strat-ford entered into an agreement to lease a commercial structure from HoPo. The structure had previously been used as a warehouse, but Stratford intended to use it as an extruded-plastics manufacturing facility. The lease agreement provided that Stratford was to “use the premises for manufacturing, storage, and distribution of plastic components, and for no other use.” The lease agreement provided for tenant alterations and improvements to the property, as follows:

“No alterations or improvements will be made by [Stratford] without [HoPo’s] prior written consent. Such consent will not be unreasonably withheld.
“If [HoPo] consents, [Stratford] has the right to perform alterations and improvements anytime during the term of this lease.
“But, in all cases, [HoPo] will not consent to such installation, alterations, or improvements until the following conditions have been met before work begins: “[Stratford] submits plans to [HoPo] bearing a licensed architect’s or engineer’s stamp.
“The construction must be performed by contractors suitable to [HoPo]. All contractors must have local business licenses, and provide to [HoPo’s agent] proof of liability, and workman’s compensation insurance coverage.
“All work will be done in a good and workmanlike manner and in compliance with any applicable governmental rules and regulations and the cost thereof will be paid by [Stratford] in cash or in equivalent, so that the leased premises will at all times be free of liens for labor and materials supplied or claimed to have been supplied to the leased premises. Any alterations and improvements other than trade fixtures will immediately become the property of [HoPo], subject only to the use of same by [Strat-ford] during the term of this lease.
“Trade fixtures are the personal property of [Stratford]. [Stratford] may remove trade fixtures when [Stratford] vacates the premises. If [Stratford] does not remove trade fixtures upon vacating the premises, then [HoPo], at [its] sole discretion, may have the fixtures removed on behalf of [Stratford]. In all cases, [Stratford] will bear the full cost, including labor and materials, of removing trade fixtures and repairing any damage caused by such removal.”

The lease agreement further provided:

“Nothing contained in this lease will authorize [Stratford] to do any act which may create or be the foundation for any lien, mortgage or other encumbrance upon the reversion or other estate of [HoPo], or of any interest of [HoPo] in the leased premises or upon in [sic] the building or improvements thereof; it being agreed that should [Stratford] cause any alterations, changes, additions, improvements or repairs to be made to the leased premises, or cause materials to be furnished or labor to be performed therein or thereon, neither [HoPo] nor the leased premises will, under any circumstances, be liable for the payment of any expense incurred or for the value of any work done or material furnished to the leased premises or any part thereof. [Stratford] will upon request deliver such documents as may be required by [HoPo] in order to effectuate the lien protection required by this paragraph; all such alterations, changes, additions, improvements and repairs and materials and all labor will be at [Stratford’s] expense and [Stratford] will be solely and wholly responsible to contractors, laborers and materialmen furnishing labor and material to said premises and building or any part thereof. If, because of any act or omission of [Stratford], any mechanic’s or other lien or order for the payment of money will be filed against the leased premises or any building or improvement thereon, or against [HoPo] (whether or not such lien or order is valid or enforceable as such),
“[Stratford] will, at [Stratford’s] own cost and expense, within fifteen (15) days after the date of filing thereof, cause the same to be canceled and discharged of record, or furnish [HoPo] with a surety bond issued by a surety company reasonably satisfactory to [HoPo], protecting [HoPo] from any loss because of nonpayment of such lien and further will indemnify and save harmless [HoPo] from and against any and all costs, expenses, claims, losses or damages, including reasonable counsel fees, resulting thereupon or by reason thereof.”

The lease agreement contained provisions allowing for HoPo and/or its agents to enter the property during the term of the lease for matters such as inspections or making repairs or additions or alterations to the property.

Stratford had applied for and been given a line of credit with Matador in September 2008. After taking possession of the leased property, Stratford ordered from Matador materials to be used to convert the leased property to a facility suitable for Stratford’s production needs. The materials and interest/finance charges incurred pursuant to the credit agreement totaled $59,057.62. Stratford apparently converted the leased property to a manufacturing facility but vacated the property before the lease term expired without paying Matador for the materials.

Howard Porter testified that he was a member of HoPo and also of Porter Properties, LLC, which was the rental agent for the leased property. Porter stated that the lease was an “as-is” lease and that Stratford did not request that HoPo make any changes to the building for it to enter into the lease agreement. Porter testified that the property manager went to the property during the term of the lease to attempt to collect the rent payment and that Stratford was behind on its rent “pretty much from the beginning.” Porter also testified that the leasing agent likely went to the property a few times but that he was not certain because that individual left Porter Properties’ employment shortly after the lease agreement was signed.

Porter testified that Tracey Davis Allen, the owner of Matador, contacted him by telephone and informed him that Stratford had not paid for materials Matador had supplied to convert the leased property to a production facility. Porter stated that after receiving the telephone call from Allen, “we notified [Stratford] that [it] needed to clean that up under the terms of the lease.”

Porter further testified that he had no knowledge before the lease agreement was signed that Matador was going to supply materials to the leased property. He stated that, even though it was not unusual to receive notice from a supplier that work was being performed on a leased property or that materials were being supplied to that property, they did not receive any such notice from Matador in this case. Porter further stated that Stratford did provide a “rough layout of the office [partition], office area that was being added” but that he did not believe that any blueprints for electrical installations or any plans bearing the stamp of a licensed architect or engineer were ever provided to HoPo. Porter testified that Stratford did not seek approval from HoPo to allow Matador to perform any work or to supply materials. Porter claimed that the only knowledge he had that Matador had provided any materials to Stratford at the leased property was the telephone call from Allen and a lien subsequently filed by Matador. Porter stated that he never agreed to pay for any materials supplied to Stratford and that when the topic was brought up by Allen he told her that payment for the materials was between her and Stratford.

Porter further testified that he told either Allen or an independent contractor who performed the work converting the leased property that Matador was welcome to retrieve any of the materials it had supplied, provided that it caused no damage to the structure of the building in retrieving the materials. He reiterated that position at trial.

According to Porter, the property has been shown to several prospective tenants since Stratford’s departure, but the property had not been leased. He stated that some of the alterations that were performed could be viewed as beneficial to some potential tenants but detrimental to other potential tenants. Further, Porter testified that substantial work would have to be performed to prepare the property before another tenant could move in because of the condition of various piping, conduits, etc., that remained after Strat-ford vacated the premises.

Allen testified that she was the owner of Matador. She stated that all the materials ordered by Stratford either were delivered from Matador’s facility to the leased property by one of Matador’s delivery trucks or were shipped directly from a supplier/manufacturer to the leased property.

According to Allen, she telephoned Porter around the same time Matador was filing a materialman’s lien on the building in March 2009 for the materials Matador had supplied. She stated that Porter informed her that Stratford had not defaulted on its rent to HoPo at that point. Allen testified that Porter told her she should seek legal counsel. Allen further testified that she told Porter that HoPo would likely be brought into the matter and that she already had an attorney and was proceeding with the legal process.

Allen informed the trial court that Matador’s invoices spanned the period from approximately November 2008 to March 2009 and that, at the time she spoke with Porter and filed the lien, Matador had provided all the materials for which it now seeks compensation. According to Allen, Matador sells new building materials and does not have any market for or use for used building materials. Matador presented unpaid invoices totaling $47,915.24 for materials provided to Stratford for converting the leased property.

George Dyar testified that he was a former owner of Matador and that he continued to assist the company on an as-needed basis. Dyar testified that he visited the premises before Stratford moved in, and he discussed the types of upgrades in lighting, electrical, heating and cooling, piping, etc., that needed to be performed to convert the building from a warehouse facility to a production facility.

Dyar testified that the upgrades in lighting would be beneficial to a tenant other than Stratford. He further testified that the piping for compressed air systems and the added electrical work would be beneficial for many other potential production tenants but would not be beneficial to potential warehouse tenants. Dyar testified that he believed the piping system could be removed without damaging the building and that, although other materials Matador had supplied could be removed without damaging the building, they were of no use to Matador once they were removed.

Mike Carter testified that he was employed by Porter Properties and that he was the property manager for the leased property. He testified as to his efforts to lease the property after Stratford’s departure.

All the testimony at trial indicated that nobody from Matador had informed anyone at HoPo that Matador would be supplying materials for Stratford to use in converting the leased property. By all accounts, it appears that the first knowledge HoPo had that Matador had supplied any materials to Stratford was in March 2009, when Allen telephoned Porter and the materialman’s lien was filed.

After hearing testimony and accepting evidence and briefs from Matador and HoPo, the trial court entered an order resolving the claims between Matador and HoPo, as follows:

“IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Matador’s judgment against the Stratford Defendants previously entered by the Court is SECURED by a lien arising under § 35-11-212, Ala.Code (1975), which attaches to the goods and materials furnished by Matador to Stratford and incorporated into the Warehouse, but only to the extent that such goods and materials can be identified and removed from the Warehouse without damage to the Warehouse or the real property on which it is situated. HoPo shall permit Matador to enter the Warehouse after notice to HoPo for the purpose of removing such goods and materials, which Matador may then sell in the manner provided for by law.
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Matador’s judgment against the Stratford Defendants previously entered by the Court is also SECURED by a lien which attaches to the unexpired term of the Lease between HoPo and [Stratford], and which may be executed upon only in the manner specified, and in accordance with the procedures set forth, in § 35-11-212, Ala.Code (1975).
“IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, except as specifically allowed and declared in this Judgment, the lien claimed by Matador in its Verified Statement of Lien recorded at Mise. Book 1289, at Page 45, in the Office of the Judge of Probate for Lee County, Alabama, is null and void, and does not attach to any other real or personal property, or any interest therein.
“IT IS FURTHER HEREBY ORDERED, ADJUDGED, AND DECREED that Matador’s claim of unjust enrichment against HoPo is due to be and the same is hereby DENIED.”

(capitalization in original.)

Matador filed a postjudgment motion to vacate or amend the judgment, and HoPo filed a response. Matador’s postjudgment motion was deemed denied pursuant to Rule 59.1, Ala.R.Civ.P., after 90 days. These appeals followed.

Standard of Review

“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.”’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:
“ ‘ “[Wjhere the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.” ’
“Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67-68 (Ala.2010).

Unjust-Enrichment Claim (Case no. 1091700)

Matador argues that the trial court erred in denying its claim that it was entitled to recover from HoPo under the theory of unjust enrichment. HoPo argues that the facts do not establish the elements of an unjust-enrichment claim.

“To prevail on a claim of unjust enrichment under Alabama law, a plaintiff must show that: (1) the defendant knowingly accepted and retained a benefit, (2) provided by another, (3) who has a reasonable expectation of compensation. See American Family Care, Inc. v. Fox, 642 So.2d 486, 488 (Ala.Civ.App.1994).”

Portofino Seaport Vill., LLC v. Welch, 4 So.3d 1095, 1098 (Ala.2008).

“ ‘One is unjustly enriched if his retention of a benefit would be unjust.’ Jordan v. Mitchell, 705 So.2d 453, 458 (Ala.Civ.App.1997) (citing Restatement of Restitution: Quasi Contracts and Con structive Trusts, § 1, Comment c. (1937)). The Jordan court continued:
‘Retention of a benefit is unjust if (1) the donor of the benefit ... acted under a mistake of fact or in misreliance on a right or duty, or (2) the recipient of the benefit ... engaged in some unconscionable conduct, such as fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or misreliance by the donor or wrongful conduct by the recipient, the recipient may have been enriched, but he is not deemed to have been unjustly enriched.’
705 So.2d at 458.”

Welch v. Montgomery Eye Physicians, P.C., 891 So.2d 837, 843 (Ala.2004).

There was no evidence indicating that Matador made a mistake of fact in providing the materials to the project, nor is there any evidence indicating that HoPo purported to accept any responsibility or liability for those materials to induce Matador to provide the materials to Stratford. To the contrary, it is clear from the record that HoPo was not aware that Matador had supplied the materials until after Matador had fulfilled all Stratford’s orders and the conversion of the facility was completed. Further, the testimony indicated that although some of the improvements may be beneficial to another prospective tenant, some of the improvements would be suitable only for production tenants and even then only to a portion of that type of tenant. Finally, HoPo has offered to allow Matador to remove from the leased property any materials it supplied that could be removed without damage to the building. In short, there was conflicting evidence as to whether HoPo knowingly obtained the benefit or whether it is insisting on retaining that benefit. There is, however, evidence to support the trial court’s judgment; therefore, the trial court’s judgment is affirmed.

Materialman’s Lien (Case no. 1091790)

HoPo argues that the trial court erred in enforcing Matador’s material-man’s lien on the leased property because, it says, Stratford violated terms of the lease agreement concerning the procedures for improving or altering the property and thereby caused the lien to arise.

Matador argues that it is clear from the terms of the lease agreement that HoPo was aware that Stratford was going to be converting the building from a warehouse facility to a production facility. Matador also avers that Stratford provided HoPo with a blueprint or floorplan of the proposed construction at the time Stratford entered into the lease agreement. Matador further asserts that HoPo had actual knowledge of the improvements because employees or agents of HoPo went to the premises on multiple occasions to collect rent.

Section 35-11-212, Ala.Code 1975, provides for liens against leased lands, as follows:

“(a) When the building or improvement is erected under or by virtue of any contract with a lessee in possession, and the erection thereof is not in violation of the terms or conditions of the lease, the lien shall attach to such building or improvement, and to the unexpired term of the lease, and the holder of the lien shall have the right to avoid a forfeiture of the lease by paying rent to the lessor, as it becomes due and payable, or by the performance of any other act or duty to which the lessee may be bound; and if the lien is enforced by a sale of the building or improvement, the purchaser may, at his election, become entitled to the possession of the demised premises, and to remain therein for the unexpired terra, by paying rent to the lessor, or performing any other act or duty to which the lessee was bound, as if he were the assignee of the lease; or he may, within 60 days after the sale, remove such building or improvement from the premises; and if he elects to take possession and to remain therein until the expiration of the term of the lease, he may, within a reasonable time after the expiration of the term, remove such building or improvement from the premises. If, before a sale, the holder of the lien has made any payments of rent, or other pecuniary compensation to the lessor, which ought to have been paid by the lessee, he shall be reimbursed for such payments from the proceeds of the sale.
“(b) When a lien attaches under subsection (a), the lessor, at any time before a sale of the property, shall have a right to discharge the same, by paying to the holder the amount secured thereby, including costs and all moneys he may have paid to the lessor to prevent a forfeiture of the lease, and, after a sale, he shall have the right to prevent the removal of the building or improvement from the premises by paying to the purchaser the value of such building or improvement; and upon such payment, either to the holder of the lien or to the purchaser, such building or improvement shall become the property of the lessor.”

(Emphasis added.)

It is clear that HoPo was aware that some construction on the building would be required to make the building suitable for Stratford’s needs. The undisputed evidence indicated that Stratford provided a “floor plan” of its intended additions to the office-space portion of the building. However, the evidence is equally undisputed that many terms of the lease agreement, e.g., requiring plans bearing a licensed architect’s or engineer’s stamp, proof of licenses and insurance from the contractors performing the work, and payment by Stratford for the materials and construction in cash or the equivalent to avoid any liens, were not fulfilled. Thus, because Stratford violated the terms of its lease in the manner in which it obtained the additions to the leased premises, we cannot hold that Matador’s lien against HoPo’s property is proper. Thus, the trial court erred in upholding the lien in this regard.

Conclusion

We affirm the trial court’s denial of Matador’s unjust-enrichment claim against HoPo in case no. 1091700. We hold that the trial court should have found the mate-rialman’s lien filed by Matador pursuant to § 35-11-212, Ala.Code 1975, unenforceable. Therefore, in case no. 1091790 we reverse the trial court’s order insofar as it enforces any portion of the lien against HoPo’s property or the improvements to that property, and we remand the case for that court to enter an order declaring that lien void.

1091700 — AFFIRMED.

1091790 — REVERSED AND REMANDED WITH DIRECTIONS.

WOODALL, BOLIN, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

      . Matador’s claims against Stratford and HoPo’s cross-claims against Stratford were resolved before trial, and consent judgments were entered as to those claims. Nothing in this opinion impacts those consent judgments.

      . The lease was scheduled to begin on December 15, 2008, and end on December 31, 2013.

      . The lease agreement contained a "Captions” section, which provides that ”[t]he paragraph captions contained herein are for convenience only and do not define, limit or construe the contents of such paragraphs and are in no way to be construed as a part of this lease.” The text in the above-quoted hold-harmless paragraphs clearly included situations involving additions or improvements. Thus, although the above-quoted hold-harmless paragraphs were included in the section of the lease agreement captioned "Maintenance and Repair of the Leased Premises,” their placement there does not impact our review of the language in those paragraphs.

      . Consent judgments were also entered against Stratford in the amount of $68,934.24 for Matador and $790,043.16 for HoPo (see supra note 1). Those amounts included principal and attorney fees, as well as compensatory damages and/or interest.

      . We need not resolve the factual dispute regarding whether Stratford had also breached the terms of its lease regarding its monetary obligations to HoPo at the time the materials were supplied by Matador.


author: BRYAN, Judge.

text:
    Michael D. LOCKRIDGE v. Karla D. LOCKRIDGE.
    2091038.
    Court of Civil Appeals of Alabama.
    July 29, 2011.

      Angela Cochran Morgan, Fort Payne, for appellant.
    Edward Cunningham of Cunningham Law Firm, L.L.C., Gadsden, for appellee.
   BRYAN, Judge.

Michael D. Lockridge (“the husband”) appeals from a judgment entered by the Etowah Circuit Court (“the trial court”) that refused to grant him an absolute divorce from Karla D. Lockridge (“the wife”) and that failed to modify certain aspects of a legal-separation judgment that had been entered by the trial court on behalf of the husband and the wife.

Procedural History

The record indicates that the parties were married in February 2001 and that they separated in September 2008. The parties were the parents of one child, a son, who was born in March 2000. On October 3, 2008, the wife filed a complaint for a divorce alleging irreconcilable differences and incompatibility of temperament as grounds for the divorce. She requested, among other relief, that the parties be ordered to provide a college education for the son. The trial court entered a status quo pendente lite order on October 7, 2008, that ordered the parties, among other things, to continue paying fixed monthly expenses in the same manner as they had been paid before the divorce action was filed.

On November 7, 2008, the husband filed an answer to the wife’s complaint and stated that he did not desire a divorce; however, he also filed a counterclaim that requested, among other relief, a division of the marital property and debts.

On March 23, 2009, the wife filed an amended complaint seeking a legal separation from the husband in accordance with § 30-2-40, Ala.Code 1975. The wife alleged that she had had a liver transplant in 2005 and that she had to take expensive “anti-rejection” medication so that her body did not reject the transplanted liver. The wife further alleged that the cost of this medication was completely covered by the husband’s employer’s insurance provider, that she was unemployed, and that she had not been able to find a health-insurance policy that would cover the cost of the anti-rejection medication that she needed.

On March 26, 2009, the trial court entered an order requiring the husband to pay the wife child support in the amount of $164 a week; ordered the husband to continue to pay the mortgage on the marital residence, the wife’s automobile-loan payment, and the utility bills; and ordered the wife to pay for “food and incidentals.” On April 6, 2009, the husband objected to the wife’s request for a legal separation and requested an absolute divorce.

The trial court conducted an ore tenus hearing on May 5, 2009. At that hearing, the wife stated that the sole reason she wanted a legal separation rather than an absolute divorce was because she wanted to keep her health-insurance coverage under the plan provided by the husband’s employer. The husband maintained that he wanted a divorce and not a legal separation. The husband acknowledged that, due to the wife’s August 2005 liver transplant, the wife had to take certain medication for the rest of her life to make sure that her body did not reject the transplanted liver. The wife stated that the husband’s employer-provided health insurance paid between $5,000 and $6,000 a month on her behalf for her prescription medication and that she would need that medication for the rest of her life. The wife stated that she had researched the approximate cost of obtaining health insurance considering her medical history, and she testified that the lowest monthly health-insurance plan that she qualified for cost $600 a month.

The wife, who was 36 years old at that time, testified that she had a college degree in computer-information systems and that, before the parties married, she had worked as a computer programmer for two years, earning approximately $35,000 a year, until she was laid off. The son was born shortly thereafter, and the wife did not return to work after giving birth to the son, except as a substitute teacher at the son’s school for a couple of days in 2007. The wife stated that the husband had never asked her to go back to work.

The husband, who was 61 years old and in good health, worked as a comptroller at Ventura Foods, LLC, and he “brought home” $4,200 in income a month. The record indicated that the husband’s gross monthly income was approximately $6,300. The husband paid $300 a month for health insurance through his employer. The husband stated that, considering the state of the economy, he was not guaranteed a job at Ventura Foods much longer.

The husband stated that he wanted joint custody of the son, but he agreed that the wife should have primary physical custody of the son.

The husband testified that the marital residence was in his name and his former’s wife name and that he had been awarded the marital residence in a prior divorce action. According to the husband, the monthly mortgage on the marital residence was approximately $706. The husband stated that he had been living with his mother since the parties separated and that her home was approximately one-quarter of a mile from the marital residence. The husband asked to be awarded the marital residence, and the wife stated that she and the son would have to move in with her grandmother approximately one hour away from the marital residence if she was not permitted to remain in the marital residence. The husband admitted that the marital residence needed repairs. The husband stated that the wife had never paid any household bills during the marriage.

The husband stated that he had been paying $288 a month for the wife’s 2006 Toyota Camry automobile. The husband owned outright a 2002 Buick LeSabre automobile. As of October 2008, the husband had two certificates of deposit (“CDs”) that totaled $16,000. Only one of the CDs was held jointly with the wife, and he admitted that he had removed the wife’s name from the CD. The husband stated that he had a 401(k) retirement account through his employer and that the balance of that account was $66,000.

The husband stated that he paid $180 a week in alimony to his former wife. According to the husband, he had not fallen behind on any of his bills since the parties separated. He stated that all the marital debts were in his name and that his monthly expenses were approximately equal to his monthly income.

On May 13, 2009, the trial court entered a “decree of legal separation” that found that the requirements of § 30-2-40(a)(l), (2), and (3), Ala.Code 1975, had been met. The parties were awarded joint legal custody of the son, and the wife was awarded primary physical custody of the son subject to the husband’s visitations rights. The husband was allowed visitation with the son “at all reasonable times and places as agreed to by the parties,” and the wife was “directed to be liberal in establishing visitation for the [husband].... ” The husband was ordered to continue to provide health insurance for the son, and he was required to pay all noneovered medical expenses incurred on behalf of the son. The husband was ordered to continue to pay $164 a week to the wife as child support.

The wife was awarded exclusive and temporary use and possession of the marital residence, and the husband was ordered to pay the mortgage, taxes, and insurance on the marital residence. The husband was also required to pay for a new roof for the marital residence and to pay for repairs to the marital residence caused by water damage. The wife was awarded her 2006 Toyota Camry, and the husband was ordered to pay the monthly car payment on the Camry and the wife’s car insurance. The husband was awarded his 2002 Buick LeSabre.

The husband was awarded approximately 19 items of furniture, appliances, and other personal property from the marital residence, and the wife was awarded all the other household goods, furnishings and appliances in the marital residence. The trial court ordered the parties to continue to pay all household bills as they had been paid' during the pendency of the proceedings. Finally, the trial court’s legal-separation judgment stated:

“This matter shall be reviewed in one year upon the motion of either party for the purpose of determining the employment status of the [wife] and her health condition. The [c]ourt finds that the [wife] is well educated and able to sustain gainful employment. The [wife] shall actively pursue gainful employment immediately and the [wife’]s attorney is ordered to make a quarterly reporting regarding the same for the [c]ourt’s consideration.”

The trial court certified the judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The husband filed a post-judgment motion pursuant to Rule 59(a) and (e), Ala. R. Civ. P., which was subsequently denied. The husband did not appeal the legal-separation judgment.

Approximately one year later, on May 10, 2010, the husband filed a “Motion for Review of Entry of Legal Separation,” and he requested that the trial court grant him an absolute divorce from the wife because, he alleged, the wife had obtained employment and he had lost his job and his ability to maintain the wife’s health-insurance coverage. The husband requested that the trial court modify his child-support obligation and the division of marital property and debts, and he requested that the trial court make the wife responsible for her household bills.

The trial court conducted an ore tenus hearing on May 26, 2010. The wife stated that she had obtained employment in August 2009 at a company called IBEC in Hokes Bluff earning $10 an hour, or approximately $707 every two weeks. The wife introduced evidence indicating that her gross wages totaled approximately $948 every two weeks, or approximately $2,054 a month. She stated that she had searched for more lucrative employment but that most of the employers that she had found did not provide health insurance. The wife’s employer provided health-insurance coverage, with no restrictions on preexisting conditions, for $200 a month. That cost included health-insurance coverage for the son.

The wife stated that her prescription-medication costs were approximately $2,000 a month but that her employer’s health-insurance provider would pay only 80% of that cost, or approximately $1,600, each month. The wife stated that she had to pay the cost of the medication up front and that she would be reimbursed by her employer’s health-insurance provider. The wife stated that she had approximately $6,000 in savings but that she needed assistance from the husband in order to pay the monthly uncovered cost of her medication.

The husband again asked the trial court to enter an absolute divorce. The husband stated that he was still living with his mother and that he wanted title to and possession of the marital residence. The husband also asked that the wife be responsible for paying her own monthly expenses.

The husband stated that he had been discharged from his job at Ventura Foods on March 9, 2010, for lack of performance. The husband stated that his employer had wanted him to spend more time at his job even though, the husband stated, he was already spending 12 hours a day at work, including his commute, which was about 1 hour each way. The husband received four months of salary, or approximately $25,200, in severance pay from his employer in April 2010. The husband stated that his mother did not charge him anything for rent or utilities.

The husband stated that he had not been successful at finding other employment and that he did not expect to be able to find employment that was commensurate in pay with his job at Ventura Foods. The husband stated that he had maintained health insurance for the wife and the son through COBRA, which cost $503 a month. The husband stated that he was eligible for COBRA health insurance for 18 months from the date he lost his job. The husband requested a modification of his child-support obligation based on the loss of his job and the mother’s having obtained a job since the last judgment was entered.

The husband stated that he could begin drawing approximately $1,600 a month in Social Security benefits but that, if he waited until he was 66 years old, he could draw approximately $2,300 a month. The husband stated that he had approximately $100,000 in a 401(k) account, $6,400 in an individual retirement account, and approximately $3,000 in a money-market account. The husband stated that he was relying on the funds in his retirement accounts for his retirement and that he could not afford to deplete those funds because he would have no way to support himself upon retirement. There was no indication at the May 2010 trial that the husband had removed any funds from his retirement accounts to cover his monthly expenses. The husband stated that he had spent approximately $11,000 from two CDs to repair the marital residence.

The wife, who was 38 years old in May 2010, said that she thought that she could pay the utility bills at the marital residence that the husband had been paying but that she could not also pay the mortgage on the marital residence. The wife stated that there were 13 payments remaining on her car loan and that it would be difficult for her to make the car payment and the utility payments. The husband estimated that he had paid between $700 and $800 a month in utility bills for the wife. The husband’s other monthly expenses included $711 a month for the mortgage on the marital residence, $780 month in alimony to his former wife, $711 a month in child support, and $288 a month for the wife’s vehicle.

The husband stated that, because he was unemployed, he had been caring for the son before and after school each weekday and that the wife picked up the son from his home between 5:00 p.m. and 6:00 p.m. each weekday. The husband said that the son occasionally did not come to visit him on weekends. The wife stated that she did not mind if the husband had weekend visitation with the son, so long as the son was “okay” with it. The wife stated that she understood that it was her job to make sure the son attended visitation with the husband, and she also stated that it was her understanding that the husband’s visitation was left to her discretion. She stated that it would not bother her if the trial court set up a specific visitation schedule. However, the wife stated that she thought it was fair to let her have weekends with the son because the husband would be caring for the child during the day each weekday while the child was not in school.

The husband stated that he did not have a will and that he had made no other provision to provide for the education of the son.

On June 22, 2010, the trial court entered a judgment on the husband’s request for a review of the legal separation. The trial court found that the wife had obtained employment and health-insurance coverage since the last hearing but that, unlike the husband’s health-insurance coverage, the wife’s health-insurance provider covered only 80% of the monthly cost of the wife’s medication; that the husband had been discharged from his job at Ventura Foods and that he had been paying to maintain health-insurance coverage for himself, the wife, and the son through COBRA; that, considering the husband’s retirement accounts and his eligibility to begin drawing Social Security benefits, the husband had sufficient assets to continue to pay child support and the mortgage on the marital residence; and that the husband had no will and that he had made “no provision for the education of the son.” Based on those findings of fact, the trial court made the following modifications to the May 2009 legal-separation judgment, without entering an absolute divorce:

“A. The [wife], beginning in July, 2010 shall be responsible for all utility payments at the marital home. The [wife] shall also be responsible for the insurance on her automobile.
“B. The [husband] is ordered to place $10,000.00 that is in his 401-K plan in a money market account that shall be in the name of the ... son to be used for his college education. The [wife] shall act as the trustee of said monies.
“C. The [husband] is to have a deed prepared and delivered to [his former] wife that transfers her interest in the marital residence to the [husband].
“D. All other terms and provisions of the legal separation shall remain in effect.”

The husband subsequently appealed the decision of the trial court to this court.

Issues

The husband presents five issues for this court’s consideration: (1) whether the trial court erred in refusing to grant his request for an absolute divorce; (2) whether the trial court erred by inequitably dividing the parties’ assets, debts, and marital expenses in the June 2010 judgment; (3) whether the trial court erred by refusing to modify his child-support obligation; (4) whether the trial court erred by requiring him to place $10,000 from his 401(k) account in a trust for the son’s college education; and (5) whether the trial court erred in refusing to set a specific visitation schedule.

Standard, of Review

The trial court entered its judgment after hearing ore tenus evidence. “When a trial court ‘makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong.’” C.P. v. W.M., 837 So.2d 860, 864 (Ala.Civ.App.2002) (quoting Ex parte Byars, 794 So.2d 345, 347 (Ala.2001)).

Discussion

First, the husband argues that the trial court erred in entering a judgment of legal separation instead of an absolute divorce. The husband contends that because the wife had obtained employment and health-insurance coverage by the time of the May 2010 hearing, and because he had lost his job and his ability to maintain health-insurance coverage for the wife beyond what COBRA would allow, there was no longer any justification for a legal separation rather than an absolute divorce.

“Legal separations in Alabama are governed by § 30-2-40, Ala.Code 1975. That section of the Alabama Code was adopted by the Alabama Legislature with an effective date of January 1,1999. Pursuant to that statute, a legal separation is a ‘court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship,’ and a ‘legal separation does not terminate the marital status of the parties.’ See § 30-2-40(b), Ala.Code 1975.”

D.L.J. v. B.R.J., 887 So.2d 242, 246 (Ala.Civ.App.2003).

Before January 1, 1999, Alabama recognized a divorce a mensa et thoro, also known as a divorce from bed and board, which was the common-law predecessor to a legal separation. Id. See also Drummond v. Drummond, 466 So.2d 974, 976 (Ala.Civ.App.1985) (“Divorce a mensa et thoro, a divorce from bed and board, is a legal separation allowing the marriage to continue as to everything not withdrawn by the decree.”). In D.L.J., this court considered Alabama precedent concerning a divorce a mensa et thoro in deciding, in the affirmative, whether the trial court had jurisdiction to modify judgments of legal separation under § 30-2-40. Id. at 247. However, this court rejected the argument that § 30-2-40 codified all preexisting common law that related to a divorce a mensa et thoro. Id. at 248.

Before the enactment of § 30-2-40, which became effective on January 1, 1999, this court had held “that when a trial court has before it a request for a divorce from bed and board and a divorce from the bonds of matrimony, the court can exercise its discretion and determine which type of divorce is best for the parties under the facts of their case.” Drummond, 466 So.2d at 976. Section 30-2-40(c), Ala.Code 1975, provides that “[i]f a party files a complaint for a decree of legal separation rather than a decree of dissolution of marriage, the court may grant the legal separation.” (Emphasis added.) Accordingly, the enactment of § 30-2-40(e) is a codification of the common-law rule that the decision whether to grant a legal separation or an absolute divorce lies within the sound discretion of the trial court. “[T]his court will not reverse a part of a trial court’s judgment that is left to its discretion unless it is shown that the trial court exceeded its discretion or that the judgment is plainly or palpably wrong.” B.R.F. v. A.V.F., 70 So.3d 412, 419 (Ala.Civ.App.2011) (citing Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997)).

The husband argues that the trial court had no legal basis for continuing the legal separation because the wife could elect to continue health-insurance coverage through COBRA whether the parties were divorced or operating under the legal separation. See, generally, 29 U.S.C. § 1162 and § 1163. It was undisputed that, under the facts as they were presented to the trial court, even if the parties remained only legally separated, the wife’s (and the husband’s) health-insurance coverage through COBRA would end 18 months after the husband’s employment with Ventu-ra Foods was terminated.

At trial in May 2009, the wife unequivocally stated that the only reason she desired a legal separation was in order to maintain health insurance. At that time she was unemployed and did not have access to health insurance through an employer. At trial in May 2010, the wife did not indicate that she thought a legal separation was still necessary; she only stated that, if she was required to utilize her employer’s health-insurance coverage, she would need assistance from the husband in financing the monthly cost of her medication. The wife stated that she had enough savings so that she did not need the husband to pay the up-front cost of $2,000 a month for her medication. There was some indication during the May 2010 trial that the parties thought that it would be more economical for the husband to continue to pay health insurance for the family through COBRA rather than pay for single coverage for himself through COBRA and also pay the wife’s $400-a-month medication expense. We understand that such reasoning may have been the trial court’s justification for continuing the legal separation; however, there is no indication that this arrangement — the husband’s paying for family coverage through COBRA while that coverage was available — could not have been utilized if the parties were divorced rather than operating under a legal separation.

Based on the evidence presented, we agree with the husband that, at the time of the May 2010 trial, there no longer existed any basis to support the legal separation and that the trial court exceeded its discretion by failing to enter a judgment dissolving the marriage of the parties. Accordingly, we reverse the judgment insofar it failed to enter an absolute judgment of divorce, and we remand the cause with instructions to the trial court to enter a judgment divorcing the parties.

The husband also argues that the trial court erred in dividing the parties’ assets, debts, and monthly expenses in the June 2010 judgment. We pretermit discussion of this issue in light of the fact that we are reversing the June 2010 judgment continuing the legal separation with instructions to the trial court to enter a final judgment of divorce. Pursuant to § 30-2-40(d), Ala.Code 1975, neither the trial court nor the parties are “bound by[ ] the provisions of the legal separation relating to alimony or a property settlement upon a final dissolution of the marriage.” See also D.L.J. v. B.R.J., 887 So.2d at 248. Accordingly, on remand, the trial court is free to exercise its discretion in crafting a divorce judgment that equitably divides the marital estate.

The husband also argues that the trial court erred in failing to modify his child-support obligation based on the evidence of the change in circumstances since the entry of the May 2009 legal-separation judgment. The husband contends that, in light of the wife’s monthly gross income of $2,054, the increased cost of health insurance, and the loss of his job, his child-support obligation was due to be modified.

“An award of child support may be modified only upon proof of a material change of circumstances that is substantial and continuing. Browning v. Browning, 626 So.2d 649 (Ala.Civ.App.1993). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994). Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. Id. We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 930 (Ala.Civ.App.1995).”

Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997).

Concerning child support, the trial court’s judgment stated:

“The [husband] testified that he has some $100,000.00 to $120,000.00 in a 401-K account, along with a portion of the severance package of some $28,000.00 that was paid to him in April of this year. He is also eligible to begin drawing some $1,600.00 per month in Social Security pension benefits. The [husband] has sufficient assets to continue to pay child support....”

The husband, citing Rule 32(B)(1) and (2)(a), Ala. R. Jud. Admin., argues that the trial court erred by considering his retirement moneys still held in savings in determining that his child-support obligation was not due to be modified. The application of the child-support guidelines in Rule 32 is founded on the determination of the parents’ gross income, not their assets. See Rule 32(B)(1) (defining “income” for purposes of the child-support guidelines as the “actual gross income of a parent....”). Rule 32(B)(2) provides the definition of “gross income,” as follows:

“(a) ‘Gross income’ includes income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment-insurance benefits, disability-insurance benefits, gifts, prizes, and preexisting periodic alimony.
“(b) ‘Gross income’ does not include child support received for other children or benefits received from means-tested public-assistance programs, including, but not limited to, Temporary Assistance for Needy Families, Supplemental Security Income, food stamps, and general assistance.”

In the present case, there was no indication at the time of trial that the husband was drawing on his retirement accounts as a form of income or that the husband was retired and was planning to use his retirement accounts as his sole source of income for his own support. To the contrary, the record indicates that the husband had lost his job and that he was searching for employment. Under these particular circumstances, we agree with the husband that the trial court erred in considering the money in his retirement accounts in determining that his child-support obligation was not due to be modified.

We further agree with the husband that there is no indication in the trial court’s judgment that it considered the wife’s increased gross income or the husband’s increased health-insurance costs, see Rule 32(C)(2), Ala. R. Jud. Admin., in determining the husband’s child-support obligation. Accordingly, we reverse that part of the trial court’s judgment that refused to modify the husband’s child-support obligation, and we remand the cause to the trial court for calculation of the husband’s child-support obligation pursuant to Rule 32.

The husband also argues that the trial court exceeded its discretion by requiring him to place $10,000 from his 401 (k) account in a trust for the son’s college education. The husband argues that this part of the judgment can be classified only as an award of postminority educational support pursuant to Ex parte Bayliss, 550 So.2d 986 (Ala.1989), and that an award of postminority educational support on behalf of the 10-year-old son was premature, especially in light of the fact that there was no evidence to support an award of postminority educational support. We agree.

The trial court, in its judgment, found that the husband did not have a will and that he had not otherwise made provision for the college education of the son. Although this court has held that a trial court may require a parent to obtain life insurance to insure that a minor child will be supported in the event of the supporting parent’s death, see Jordan v. Jordan, 688 So.2d 839, 842 (Ala.Civ.App.1997), the trial court went further and specifically ordered the husband to place $10,000 in trust for the child for his future college education. That part of the judgment requiring the husband to set aside $10,000 for the benefit of the son can undoubtedly be labeled as “support” for the son. However, we have held that “[cjhild support determinations involve the parent’s present ability to meet the child’s present needs and are not subject to speculation regarding future ability or need.” Butts v. Butts, 600 So.2d 1038, 1041 (Ala.Civ.App.1992) (citing Morrison v. Kirkland, 567 So.2d 363 (Ala.Civ.App.1990)).

In Butts, we held that an award of a definite amount of postminority educational support was premature when “the children [wejre not yet of college age and there was no evidence presented regarding the anticipated future college expenses or the possibility of ‘undue hardship’ on the husband or the wife.” 600 So.2d at 1042 (citing Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990)). Similarly, in Martin v. Martin, 624 So.2d 192, 193 (Ala.Civ.App.1993), this court reversed an order requiring the husband to pay the postmi-nority educational expenses of his three children, who were ages 11, 13, and 16 at the time of trial, when

“[a] review of the testimony reveal[ed] that no evidence was presented regarding the anticipated expenses connected with a college education for any of the children, or whether the husband would be able to contribute to the cost of such an education when each child was ready to attend college. Further, the record [wa]s devoid of any evidence of the children’s grades or their willingness to attend college.”

As we did in Butts and Martin, we conclude that the record is devoid of any evidence sufficient to support an award of postminority educational support at this time. Accordingly, that part of the judgment that required the husband to “place $10,000.00 that is in his 401-K plan in a money market account ... in the name of the ... son to be used for his college education” is reversed, and, on remand, the trial court is instructed to vacate that portion of its judgment.

Finally, the husband contends that the trial court erred in failing to set a specific visitation schedule on his behalf. The May 2009 legal-separation judgment set forth the visitation parameters for the husband as follows: “The [husband] shall have visitation with the [son] at all reasonable times and places as agreed by the parties.”

In Pratt v. Pratt, 56 So.3d 638, 644 (Ala.Civ.App.2010), this court held that “[t]he propriety of [a visitation] judgment depends on whether the noncustodial parent has a sufficient, specified visitation schedule to rely upon, independent of the custodial parent’s discretion.” We also noted that “[t]his court ... has affirmed awards of unspecified visitation based on the agreement of the parties when the trial court also provides that, in the event of disagreement, ‘standard visitation’ or some other specified visitation would be imposed.” Id. Although the trial court’s judgment also directed the wife to be liberal in establishing visitation with the husband, we agree that the trial court erroneously failed to provide for some form of specific visitation for the husband in the event the parties could not agree on the husband’s visitation. Accordingly, we reverse the trial court’s judgment insofar as it failed to set forth a specific visitation schedule for the husband, and we remand the cause with instructions to the trial court to set forth a “sufficient,’ specified visitation schedule [for the husband] to rely upon, independent of the [wife]’s discretion.” Id.

Conclusion

The judgment of the trial court is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . We calculated the wife’s monthly gross income by multiplying her gross biweekly income ($948) by the number of pay periods in 1 year (26) and dividing that number ($24,-648) by 12.

      . Apparently, the wife’s employer's health-insurance provider notified her the week before trial that there would no longer be any restrictions on her coverage, which suggests that, from August 2009 until shortly before trial in May 2010, there were some restrictions.

      . It is possible that, if the parties divorced, the wife would be entitled to an additional 18 months of COBRA coverage. See 29 U.S.C. § 1162(2)(A)(ii) (special rule for multiple qualifying events). However, because neither party presented the trial court with this argument, we will not consider it in determining whether the trial court exceeded its discretion by failing to grant the husband an absolute divorce.

      . We note that there was no indication in the trial court's judgment that the trial court intended to deviate from the application of the child-support guidelines pursuant to Rule 32(A)(ii), Ala. R. Jud. Admin.

      . We note that the trial court, in its discretion, may deviate from the application of the Rule 32 child-support guidelines if it concludes that application of the guidelines would be unjust or inappropriate. See Rule 32(A)(ii), Ala. R. Jud. Admin, (setting forth the procedure for deviating from the child-support guidelines).

      .If the judgment had required the husband to set aside money as a guaranty that the child would be supported in the event of the husband's death, this court may have decided the issue differently. But, because the money was specifically designated for the son's college education, we must conclude that such an award is an award of postminority educational support.


text:
    Tracy Ann WALDROP et al. v. NORTHWEST-SHOALS COMMUNITY COLLEGE and Humphrey Lee.
    2100328.
    Court of Civil Appeals of Alabama.
    Aug. 5, 2011.

      H. Thomas Heflin, Jr., Tuscumbia; and Frederick L. Fohrell, Huntsville, for appellants.
    Charles A. Hardin, Tuscaloosa, for ap-pellees.
   BRYAN, Judge.

Tracy Ann Waldrop, Melissa Carol Kee-ton, and Kemalie Jane Grissom, the plaintiffs below, appeal from a summary judgment entered in favor of Northwesl^Shoals Community College (“the College”) and Humphrey Lee, the defendants below. This case concerns whether the defendants violated § 16-22-15, Ala.Code 1975, in the hiring of a secretary. We affirm.

In May 2008, Teresa Harrison left her position performing secretarial work for the College’s vice president of instruction, Glenda Faye Colagross. Colagross testified that her office was shorthanded after Harrison left. At the time, Adriana Wuot-to was working at the College as a client-relations specialist. Colagross testified that Wuotto regularly began helping Cola-gross in her office to compensate for Harrison’s departure. Colagross stated that Wuotto, on two or three occasions before Harrison left in May 2008, had helped Colagross’s staff “write a grant” when the staff was shorthanded.

Colagross testified that, either in the summer of 2008 or the fall of 2008 — she could not remember which — she submitted a request that the College fill the vacancy created by Harrison’s departure. Consequently, on January 20, 2009, the College posted a notice of vacancy for a “Secretary III” position to work under Colagross. The notice for the Secretary III position was posted for a 14-day period ending on February 3, 2009. Several people applied for the Secretary III position, including Wuotto and the plaintiffs, Waldrop, Kee-ton, and Grissom, who were secretaries at the College. The College formed a five-member search committee to help fill the position. From the pool of applicants, the search committee selected Wuotto, the three plaintiffs, and three other applicants for interviews; one applicant later withdrew herself from consideration before interviews. During the interviews, each search-committee member scored the six applicants based on their responses to certain questions. Wuotto and two of the plaintiffs, Grissom and Waldrop, received the highest combined scores from the search committee. Lee, the College’s president, interviewed the three finalists, and he selected Wuotto to fill the Secretary III position. On June 1, 2009, the College offered Wuotto the Secretary III position, and she accepted it.

In February 2010, Waldrop, Keeton, and Grissom sued the College and Lee, seeking a judgment declaring that the defendants had failed to comply with § 16-22-15, Ala. Code 1975, regarding the hiring of Wuotto for the Secretary III position. The defendants filed a motion for a summary judgment asserting, among other things, that they had complied with the requirements of § 16-22-15 and that the College was entitled to State immunity. After the plaintiffs filed a response to the summary-judgment motion, the trial court entered a summary judgment in favor of the defendants, without specifying a reason. The plaintiffs appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

Initially, we address the College’s argument that it is immune from suit under the doctrine of State immunity, also known as sovereign immunity. Ex parte Tirey, 977 So.2d 469, 470 (Ala.2007).

“Section 14, Ala. Const.1901, provides: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’.... ‘The wall of immunity erected by § 14 is nearly impregnable.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (‘Section 14 affords absolute immunity to both the State and State agencies.’) ... ‘Absolute immunity’ means just that — the State and its agencies are not subject to suit under any theory.”

Alabama Dep’t of Corr. v. Montgomery Cnty. Comm’n, 11 So.3d 189, 191 (Ala. 2008) (emphasis omitted). “[State] immunity extends to the state’s institutions of higher learning,” Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala.1983), which includes the State’s community colleges, such as the College in this case. Williams v. John C. Calhoun Cmty. Coll., 646 So.2d 1, 2 (Ala.1994); and Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1313 (Ala.Civ.App.1995). Therefore, the College is absolutely immune from suit under Art. 1, § 14, Ala. Const.1901. Accordingly, the trial court properly entered a summary judgment in favor of the College.

With respect to the plaintiffs’ action against Lee, the president of the College and the other defendant in this case, we briefly note the following. An action against a State official in his or her official capacity brought under the Declaratory Judgment Act seeking construction of a statute and its application in a given situation is not considered to be an action “against the State” for § 14 purposes. Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 840 (Ala.2008). However, an action against a State official in his or her official capacity is considered “ ‘ “one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [SJtate.” ’ ” Id. (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004), quoting in turn Shoals Cmty. Coll. v. Colagross, 674 So.2d at 1314) (emphasis omitted). The plaintiffs sought a declaratory judgment regarding the construction of § 16-22-15 and its application in this case. Accordingly, Lee is not entitled to State immunity. Therefore, we now address the plaintiffs’ arguments with respect to Lee.

Section 16-22-15, Ala.Code 1975, provides, in pertinent part:

“(a) For the purposes of this section, the following words shall have the following meanings:
“(1) Board of education or board- [T]he State Board of Education as applied to two-year postsec-ondary education institutions^]
“(2) Executive officer.... [T]he president of any two-year school or college under the auspices of the State Board of Education...;
“(b) Each board of education, through its executive officer, shall post a notice of vacancy for each vacant personnel position. The notice shall be posted in a conspicuous place at each school campus and worksite at least 14 calendar days before the position is to be filled....
“(c) If a personnel vacancy occurs during the time when the schools are in session, the vacancy notice shall be posted not less than seven calendar days before the position is to be filled. All vacancies involving jobs which are supervisory, managerial, or otherwise newly created positions shall nevertheless require posting notices of at least 14 calendar days.”

The plaintiffs argue that there are several genuine issues of material fact regarding whether Lee violated § 16-22-15 in hiring Wuotto. For one, the plaintiffs argue that there is a factual issue regarding whether Wuotto was in essence hired for the Secretary III position before the vacancy for that position was posted in January 2009. As noted, after Harrison left her secretarial position with Colagross in May 2008, Wuotto, a client-relations specialist at the College, began assisting Colagross to compensate for Harrison’s departure. According to Colagross, Wuot-to had previously helped Colagross’s staff write grants on two or three occasions when the staff was shorthanded. Cola-gross testified that, in addition Harrison’s departure in May 2008, Colagross’s assistant dean had also left at the beginning of the fall semester in 2008. Colagross stated that at that time her office was so shorthanded that she needed Wuotto to help her at the College’s Shoals Campus; before Harrison left, Wuotto had worked primarily at the College’s Phil Campbell Campus. Colagross testified:

“A. ... I called Marsha 01iver[, Wuotto’s supervisor,] and said, you know, ‘[Wuotto] can still be [a] client relations specialist. Any projects that you have that you need her to do related to the project she’s still welcome to do, but this is fall semester, and Kristi[, a member of Colagross’s staff,] cannot handle it by herself with just me in here to help her.’ So that’s when [Wuotto] pretty much ... spent her time at the Shoals campus, with the exception of maybe a time or two when Marsha needed her at the Phil Campbell campus.
“Q. [By counsel for the plaintiffs: In] August 2008[, when the fall semester started,] you find [your staff shortage] gets much more critical, correct?
“A. Yes.
“Q. And that’s when you fill in with [Wuotto]?
“A. Yes, sir.”

The record on appeal does not indicate that Wuotto was prematurely awarded the Secretary III position when she began helping Colagross in 2008. The record does not indicate that Wuotto’s job title or pay rate changed when she began helping Colagross in 2008. For all that appears in the record, Wuotto officially remained a client-relations specialist while helping Co-lagross when she was shorthanded. Moreover, the record does not reveal Wuotto’s precise job duties during the period when she helped Colagross; the record suggests that Wuotto retained at least some of her job duties as a client-relations specialist. Of course, the fact that the defendants posted the Secretary III position in January 2009 and underwent a thorough process to fill that vacancy indicates that the position had not already been filled by Wuotto. We see no genuine issue of material fact regarding the plaintiffs’ contention that Wuotto had been awarded the Secretary III position, in violation of § 16-22-15, before the vacancy for that position was posted in January 2009.

The plaintiffs also argue that, when Wuotto began “filling in” after Harrison left, Wuotto was hired in a new temporary position that was required to be posted under § 16-22-15. There is no indication that, during the period in question, Wuot-to’s job title changed or that she received a different rate of pay. The evidence simply indicates that Wuotto, who was already employed by the College, helped Colagross while she was shorthanded until the Secretary III position was posted and filled. Given the facts of this case, the defendants did not create a temporary position filled by Wuotto. Because there was no temporary position created, we do not address the plaintiffs’ additional argument that the requirements of § 16-22-15 apply to temporary positions as well as permanent positions.

The plaintiffs also argue that § 16-22 — 15(d) required the defendants to post the Secretary III position without delay after Harrison departed. From that premise, the plaintiffs then contend that there is a genuine issue of material fact regarding whether the defendants delayed the posting of the position in violation of § 16 — 22—15(d). Section 16-22-15(d) provides, in pertinent part:

“The board may adopt or continue policies which are not inconsistent with this section. The board may adopt policies to ensure the safety and welfare of its students during dire emergency situations, but the posting of a vacancy notice as required in this section shall not be abridged or delayed except in dire emergency circumstances and then delayed only temporarily in order to reasonably meet the conditions of the emergency.”

Section 16-22-15(b) provides that a notice of vacancy for a position must be posted “at least 14 calendar days before the position is to be filled.” Section 16-22-15(c) provides:

“(c) If a personnel vacancy occurs during the time when the schools are in session, the vacancy notice shall be posted not less than seven calendar days before the position is to be filled. All vacancies involving jobs which are supervisory, managerial, or otherwise newly created positions shall nevertheless require posting notices of at least 14 calendar days.”

Neither § 16-22-15(b) nor § 16-22-15(c) indicates that a vacant position must be posted within a certain period; the only period mentioned in § 16-22-15 is the notice period. Depending on the circumstances, § 16-22-15 requires either a 7-day or 14-day notice period; it is undisputed that the defendants provided the required notice before the Secretary III position was filled. Section 16-22-15(d) appears to provide that the statutory notice need not be given in emergency situations. We read § 16-22-15(d) as relating to the notice period between the posting of and the filling of the vacancy. We do not read that section as relating to the period between the time a position is vacated and the time the notice of vacancy is posted. Accordingly, this case does not concern § 16-22-15(d).

The plaintiffs also argue that there is a genuine issue of material fact regarding whether the experience Wuotto gained while working for Colagross after Harrison left made her a qualified candidate for the Secretary III position or gave her an advantage over the plaintiffs in the hiring process. These issues seem to be based on a presumption that the defendants violated the requirements of § 16-22-15 in hiring Wuotto, thus providing Wuotto with an unfair advantage. However, the defendants did not violate § 16-22-15 in hiring Wuotto. The plaintiffs have not explained how these issues would be relevant absent a violation of § 16-22-15. Because we find that the defendants did not act unlawfully in hiring Wuotto, the degree to which Wuotto benefited from the defendants’ actions is immaterial.

In summary, the College is entitled to State immunity, and the plaintiffs have not established that the trial court erred in entering a summary judgment in favor of Lee. We affirm the trial court’s summary judgment.

AFFIRMED.

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

      . The College is a two-year postsecondary education institution.