source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    HEATHERWOOD HOLDINGS, LLC v. FIRST COMMERCIAL BANK, Jonathan L. Kimerling, and HGC, Inc.
    1091016.
    Supreme Court of Alabama.
    Oct. 22, 2010.

      Charles L. Denaburg, Steven D. Alt-mann, and Nathan C. Weinert of Najjar Denaburg, P.C., Birmingham, for plaintiff.
    James R. Bussian, Robert H. Fowlkes, and Joshua B. Baker of Maynard, Cooper & Gale, P.C., Birmingham, for defendant First Commercial Bank.
    Lee R. Benton and Amy M. Hazelton of Benton & Centeno, LLP, Birmingham, for defendant HGC, Inc.
   SMITH, Justice.

The United States Bankruptcy Court for the Northern District of Alabama, Southern Division, has certified three questions to this Court pursuant to Rule 18, Ala. R.App. P.

Facts and Procedural History

In its certification to this Court, the Bankruptcy Court provided the following background information:

“In the 1970’s, United States Steel Realty Development Division (‘USR’) began development of the Heatherwood subdivision [in Shelby County]. Part of the development included a parcel to be used as a golf course. Recorded plat maps of the development show or depict this parcel as a golf course. In 1999, HGC Inc. was formed by members of the Heatherwood golf course/club and homeowners in the area. HGC was to operate the Heatherwood golf course and tennis facility. In September 1999, the real property comprising this facility was deeded by USR to HGC. Although the Deed contained various restrictions, covenants and easements, there was no specific provision that required, provided for or referenced the actual or continued use of the property as a golf course.
“In 2000, HGC entered into an Asset Purchase Agreement (‘APA’) with Pine Cone Capital (‘PCC’) whereby PCC purchased all of HGC’s interest, including the real property, that was the Heather-wood golf course. There were numerous drafts before the final agreement was executed. This APA provided that PCC was required to improve the property and to maintain it as a golf course for at least 25 years. PCC assigned all of its rights in the APA to Heatherwood Holdings LLC (‘HH’). HGC then executed a Warranty Deed transferring the property to HH. The restriction or requirement regarding the limited use of this property was not contained or included in the Deed from HGC to HH. At the time the Deed was prepared, an agreement was also drawn up and executed that required HH to operate the golf course for 25 years. This agreement was recorded simultaneously with the Deed.
“HH began operating the golf course and in 2001 borrowed $4 million from First Commercial Bank and executed a Note and Mortgage on this property. There is also a second Mortgage on this property for over $1.5 million that is held by Jonathan Kimerling. HH began having financial problems and in late 2008 notified HGC members that the golf course was about to cease operation. On January 6, 2009, this chapter 11 case was filed and this Adversary Proceeding was filed by the Debtor [HH] seeking to sell the property for any use, not limited to the golf course.
“HGC argues that there is an implied restrictive covenant, that the Agreement is essentially an express covenant, and that the Deed should be reformed because of a mutual mistake.[] HGC relies in part on non-Alabama cases to support its position. HH and First Commercial Bank assert that these cases are not applicable; they argue that Alabama case law applies and none of HGC’s arguments are valid.[]
“This Court views the facts in one non-Alabama case cited[, Shalimar Ass’n v. D.O.C. Enterprises, Ltd,., 688 P.2d 682 (1984),] as similar to the facts presented whereas the Alabama cases do not appear to have the same facts.... [T]his Court finds no clear Alabama precedent, and thus the legal issues presented should be certified to the Alabama Supreme Court to decide these issues.
“Therefore, the following questions are certified to the Alabama Supreme Court:
“1. Whether Alabama law recognizes or will imply a restrictive covenant as to a golf course constructed as part of a residential development consistent with a case with similar facts, Shalimar Ass’n v. D.O.C. Enters., Ltd., 688 P.2d 682 (Ariz.Ct.App.1984)?
“2. Whether Alabama law recognizes an implied restrictive covenant that runs with the land when the Deed conveying the property did not contain an express covenant or restriction but a separate Agreement recorded simultaneously with the Deed and recorded immediately thereafter provided that ‘Buyer covenants that it will operate the purchased assets [the real property] as a golf course for the twenty-five (25) years from the date of execution of this Agreement’?
“3. Whether Alabama law permits the owner of real property to re-sell that property for any use, not limited to the use of a golf course, when the Deed conveying the property did not contain an express covenant or restriction but a separate Agreement recorded simultaneously with the Deed and recorded immediately thereafter provided that ‘Buyer covenants that it will operate the purchased assets [the real property] as a golf course for the twenty-five (25) years from the date of execution of this Agreement’?”

Discussion

I.

To address the first certified question, we first provide a brief background of Alabama law regarding implied restrictive covenants. In Collins v. Rodgers, 938 So.2d 379 (Ala.2006), this Court stated:

“[T]he existence of an implied restrictive covenant is not to be inferred lightly. This Court has recognized that express restrictive covenants are disfavored under Alabama law and are to be strictly construed, with all doubts resolved in favor of the free and unrestricted use of land and against the covenants. See Whaley v. Harrison, 624 So.2d 516 (Ala.1993); Lange v. Scofield, 567 So.2d 1299 (Ala.1990). Logically, if express restrictive covenants are disfavored under the law, implied restrictive covenants are to be viewed with even less favor.
“Despite the disfavor with which Alabama law views implied restrictive covenants, this Court has enforced implied restrictive covenants under certain situations. See Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962); Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936); Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928). However, in more recent cases, this Court has refused to find an implied restrictive covenant. See Ex parte Frazer, 587 So.2d 330 (Ala.1991); Swanson v. Green, 572 So.2d 1246 (Ala.1990).”

938 So.2d at 385. Through a discussion of several cases, this Court in Collins outlined the development of the law in Alabama regarding implied restrictive covenants. See Collins, 938 So.2d at 385-93.

In Hun Es Tu Malade? #16, LLC v. Tucker, 963 So.2d 55 (Ala.2006), this Court stated:

“This Court has recognized repeatedly that an owner of property may adopt a common scheme of development for his property by dividing his property into smaller lots or parcels and conveying those parcels with uniform restrictions. See Collins v. Rodgers, 938 So.2d at 393 (discussing numerous cases involving reciprocal negative easements).
“For example, in Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928), this Court stated:
“ ‘ “Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots, and conveying these with uniform restrictions as to the purposes for which the lands may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by any one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers. The owner of each lot has as appurtenant to his lot a right in the nature of an easement upon the other lots, which he may enforce in equity-
“ ‘ “Whether such restriction creates a right which inures to the benefit of purchasers is a question of intention, and to create such right it must appear from the terms of the grant, or from the surrounding circumstances, that the grantor intended to create an easement in favor of the purchaser.” 4 Thompson on Real Property, § 3398.
“ ‘... [T]he equitable right to enforce such mutual covenants is rested on the fact that the building scheme forms an inducement to buy, and becomes a part of the consideration. The buyer submits to a burden upon his lot because of the fact that a like burden is imposed on his neighbor’s lot, operating to the benefit of both, and carries a mutual burden resting on the seller and the purchaser.’
218 Ala. at 271, 118 So. at 660 (emphasis omitted). Thus, Alabama has recognized that a grantor may create reciprocal negative easements by dividing and conveying his property in smaller lots or parcels if, in conjunction with the conveyances, he includes common restrictions in the deeds to some or all of those parcels. If the grantor so intended, those common restrictions inure to the benefit of all purchasers from that grantor.
“ ‘The question of law which exists in such cases is whether or not the grantor in the deed containing the restriction agreed expressly or impliedly that the restriction is for the benefit of the owner of other property in the subdivision, whether it had been sold or not. Such a contract may be inferred from the circumstances and terms of the instrument, and need not be expressed either verbally or in writing. The test is said to be the intention of the grantor in creating the restriction.’
“Virgin v. Garrett, 233 Ala. 34, 37, 169 So. 711, 713 (1936).
“Thus, we must determine whether the evidence establishes that Clarence Beasley [the grantor] intended a common scheme of development.”

963 So.2d at 65-66.

In Tucker, this Court cited the following five methods of establishing that the original grantor “intended a common scheme of development”: “ ‘ “1) universal written restrictions in all of the deeds of the subdivision; 2) restrictions in a substantial number of such deeds; 3) the filing of a plat showing the restrictions; 4) actual conditions in the applicable subdivision; or 5) acceptance of the actual conditions by the lot owners.” ’ ” 963 So.2d at 66 (quoting Collins, 938 So.2d at 393, quoting in turn Swanson v. Green, 572 So.2d 1246, 1248 (Ala.1990), citing 7 Thompson on Real Property § 3163, p. 124 (1962 repl. vol.)). This Court found that there was sufficient evidence in Tucker indicating an intent to develop the property in accordance with a common scheme. Specifically, this Court noted:

“[T]he property owners presented evidence indicating that [the grantor] owned a large tract of land; that he sold that tract by conveying numerous smaller parcels; that he included in the vast majority of the deeds involved in those conveyances [64 of the 76 deeds in evidence] the same or substantially similar restrictive covenants against commercial development and subdividing the property; that at least some of the purchasers of those parcels relied on the reciprocal nature of those restrictive covenants in deciding to purchase the property; and that, in addition to the three property owners named as plaintiffs in this action, at least some of the other purchasers of property in [the subdivision] believed that [the grantor] had developed his property pursuant to a common scheme.”

963 So.2d at 68.

In Collins, by contrast, this Court concluded that there was not substantial evidence indicating a common scheme of development that included the specific restriction at issue in that case, i.e., a 100-foot building setback. Collins specifically stated: “The residents in this case unquestionably cannot establish a common building scheme using methods 1, 2, or 3 of those recognized in Swanson [v. Green, 572 So.2d 1246 (Ala.1990) ],” 938 So.2d at 395, and the opinion notes that, because of a lack of evidence regarding them, methods 4 and 5 in Swanson could not be addressed.

With this background in mind, we turn to the first certified question: “Whether Alabama law recognizes or will imply a restrictive covenant as to a golf course constructed as part of a residential development consistent with a case with similar facts, Shalimar Ass’n v. D.O.C. Enters., Ltd., [142 Ariz. 36,] 688 P.2d 682 (Ariz.Ct.App.1984)?” Shalimar involved a residential-land development consisting of a golf course and residential lots surrounding the golf course (the property on which the golf course and the surrounding lots are located is hereinafter referred to as “the Shali-mar property”). The original developer, Karl Guelich and Associates, acquired the Shalimar property in March 1960, and a golf course began operations on the Shali-mar property in 1961. In 1978, the original developer sold the Shalimar property to D.O.C. Enterprises, Ltd. When D.O.C. attempted to develop the golf-course property for other purposes, the surrounding homeowners sued, seeking a declaration that an implied restriction existed limiting the use of the property to a golf course. 142 Ariz. at 37, 688 P.2d at 683. The trial court ruled in favor of the homeowners, and the Arizona Court of Appeals affirmed its judgment. 142 Ariz. at 37, 47, 688 P.2d at 683, 693.

The Arizona Court of Appeals provided the following relevant background information:

“Upon acquiring this land, Guelich and Associates designed a golf course which was intended as an integral part of the general plan for the development and improvement of all the Shalimar property. The plan, including the golf course, was for the purpose of inducing people to buy property in the Shalimar subdivisions and was intended to be for the benefit of those purchasers and their successors in interest. A map showing the proposed development was shown to potential lot buyers and was recorded in the office of the Maricopa County Recorder in August 1960.
“Guelich and Associates also caused to be recorded for Shalimar Estates certain restrictions which contained three paragraphs referring to a golf course:
“‘5. No structure shall be located nearer than thirty feet to any property line abutting on the golf course property....
“ ‘9. No fence, wall or hedge over 2 ½ feet high shall be constructed or maintained within the area lying between the front of any building and the front or street property line. No fence, wall or hedge over 6 feet high shall be constructed or maintained on any portion of a lot. Landscaping shall be planned in this area so as to avoid undue obstruction of the view of the golf course from the lots, and all property lines abutting on the golf course shall be fenced with 3 feet high grape stake fencing or equivalent.
“‘17. It is contemplated that a golf course may be constructed on that certain part designated as Tract “A” in SHALIMAR ESTATES, and the terms “golf course property” and “golf course” as used herein shall mean the golf course which may be constructed on those tracts as shown by the recorded plat of SHALIMAR ESTATES. (emphasis added)[.]’
“No restrictions were recorded against the golf course property itself (sometimes referred to as ‘Tract A’). The golf course was constructed in 1960 and 1961 in accordance with the configuration and dimensions shown on the recorded plat.
“After this, on October 29, 1963, restrictions were recorded for the residential lots in Shalimar Estates addition number one, which included essentially the same provisions as those earlier quoted, allowing for minor changes.
“Other recorded documents included references to golf course restrictions. For example, the recorded plat for the Shalimar West subdivision shows an easement for a golf cart path, and the recorded plat for Shalimar Estates addition number four contains a grant of a private irrigation easement to Shalimar Golf Club for its ‘use and enjoyment and its attendant liabilities of upkeep, maintenance and care.’ In addition, brochures and sales materials which depict and describe the golf course were placed on file as a public record with the Arizona Department of Real Estate.
“Residential lot sales began in 1961. The brochures provided to lot purchasers showed a golf course surrounded by numbered home lots.
“Sales were made with representations that the golf course would be maintained as such until the year 2000, with provision for an extension of 25 years. The duration of this promise was to be the same as the period of the recorded restrictions, which provide that the restrictions shall run ‘until January 1, 2000 A.D., after which time they shall be automatically extended for a period of 25 years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change the same in whole or in part.’
“Salesmen for Guelich and Associates promised to develop, maintain, and operate the Shalimar Golf Course for the benefit of residential lots developed by Guelich and Associates. A higher price was charged for lots adjoining the golf course, and they have a greater value because of the existence of a golf course. The homeowners chose lots after looking at the plat prepared by Guelich and Associates showing the golf course and after considering the location of the lots with respect to the golf course.
“The trial court found that when the homeowners acquired their property, sales materials, brochures, maps, and plats were shown and given to them and representations and statements were made to them on the basis of which they had reason to, and did, understand and believe that the golf course would continue to be maintained and used as a golf course. In addition to the specific representations made by salesmen of the developer, Guelich and Associates, there were representations made in the sales materials that:
“ ‘All residents of the subdivision will have access [to the golf course] by membership.... You automatically receive a family membership in Shali-mar Country Club.... A special “drawing card” for home buyers is the fact that Shalimar Estates homes encircle the attractive Shalimar Golf Course....
“ ‘Golf course memberships included at no charge....
“ ‘Shalimar Estates is an exclusive subdivision with 150 homesites. Included in the plans are a new clubhouse for the nine hole golf course to which all residents will have access by membership....
“ ‘Free membership in Shalimar Country Club.... ’
“The trial court also found that the homeowners relied on the plats, sales materials, and statements, and were induced to buy property and to build homes, in part, because the golf course provided an open space and park-like environment for their families, because the continued use and maintenance of the golf course insured that it would not be developed for other homes or businesses, and because they, the homeowners, would be able to join the golf club and play golf next to their homes.
“The trial court found that the homeowners who purchased lots adjoining the golf course had a right to rely and did in fact rely upon the representations made to them that the use of the golf course was restricted to that purpose for the term of the restrictions.
“The court also found that the homeowners who purchased lots adjoining the golf course would not have bought those lots except for the presence of the golf course and representations that its use was restricted to a golf course and that it would be maintained for that purpose for the term of the restrictions.
“Shalimar Golf Club, Inc., an Arizona corporation, was formed by the principals of the developer and others for the purpose of maintaining and operating the Shalimar Golf Course and it did so from 1961 until July 2, 1979, when the appellants acquired it. In 1976, L.B. Hill and Jane Hill, his wife (the Hills) purchased the subject property from Guelich and Associates and Shalimar Golf Club, Inc. The Hills continued to maintain and operate it as a golf course until July 2, 1979, when they sold it to appellants. All of the prior owners believed the golf course property was required to be used as a golf course and operated it as such.”

142 Ariz. at 37-39, 688 P.2d at 684-85 (capitalization in original).

The Shalimar court affirmed the trial court’s findings (1) “that an implied covenant restricting the use of the property to a golf course arose from the sale of adjacent lots to the homeowners”; (2) “that [the implied covenant] was enforceable against appellants as subsequent purchasers who took their ownership with notice of the restriction.” 142 Ariz. at 43, 688 P.2d at 689. In support of its decision, the Shalimar court stated:

“In Ute Park Summer Homes Association v. Maxwell Land Grant Co.[, 77 N.M. 730, 427 P.2d 249 (1967) ], the developer had sold lots in a subdivision of land and distributed maps containing an area marked ‘golf course.’ The map was never recorded, nor did any of the deeds contain any reference to the map or to any interest in a golf course. After the lots had been sold, the developers sought to sell the golf course area without restriction to its use. The New Mexico Supreme Court held that lot owners had a legal right to use of the area as a golf course. This right, the court held, came into existence because of maps and representations of the developer’s agents. The court said:
“ ‘[W]here land is sold with reference to a map or plat showing a park or like open area, the purchaser acquires a private right, generally referred to as an easement, that such area shall be used in the manner designated. As stated, this is a private right and it is not dependent on a proper making and recording of a plat for purposes of dedication.’
77 N.M. at 734, 427 P.2d at 253. Ute Park is not directly on point because it involved a suit by lot owners directly against the developer and not his successor. Moreover, the court found an implied ‘easement’ which is not urged here. See Bradley v. Frazier Park Play-grounds[ Inc., 110 Cal.App.2d 436, 242 P.2d 958 (1952) ]; Hackert v. Edwards, 22 Conn.Supp. 499, 175 A.2d 381 (1961); Cree Meadows, Inc. (NSL) v. Palmer, 68 N.M. 479, 362 P.2d 1007 (1961); Putnam v. Dickinson[, 142 N.W.2d 111 (N.D. 1966) ].
“This brings us to the problem of terminology. We recognize that the rights we uphold here have been referred to by courts as equitable easements, implied easements, equitable ser-vitudes, implied equitable servitudes, implied grants, implied restrictive covenants, and rights arising by estoppel. The nomenclature used in the reported decisions is not consistent. Suffice it to say we are satisfied that ‘implied restrictive covenant’ sufficiently describes what exists here.
“We next discuss the imposition of the implied restrictive covenant against appellants as successors in interest to the developer. The record shows beyond dispute that the intervening purchasers from the developers ... knew of the restrictions and complied with them, operating the golf course continuously during their ownership. As for appellants, the trial court found:
“ ‘At or prior to the time the [appellants] acquired their interest in the subject property, they had actual or constructive notice, they should have known, and they had information on the basis of which they had a duty to inquire and thereby would have learned, of the golf course restrictions. The defendants are not bona fide purchasers without notice.’[]
“Appellants argue that their sole duty of inquiry was to check recorded documents and, because they did so and found no restrictions, they should not be bound by an implied restrictive covenant. For this they refer to Neal v. Hunt, 112 Ariz. 307, 541 P.2d 559 (1975).
“Neal v. Hunt involved an unrecorded agreement reserving certain water rights to the former owner of ranch property which changed hands several times. When the property was sold to Hunt, the seller told him the former owner, Neal, ‘had some claim to water rights on the ranch.’ 112 Ariz. at 310, 541 P.2d at 562. Hunt searched the county records and found no document of record purporting to reserve any water rights on the ranch. The court commented upon these facts as follows:
“ ‘We believe that when Collins told Hunt, prior to the sale, that defendant had a water right claim this was sufficient to put Hunt on inquiry, We believe further that absent other notice, a search of the record was sufficient under the facts in this case. Defendant, in order to protect his interest, had an obligation to record the instrument, and Hunt had an obligation, once Collins told him of defendant’s possible water rights, to ascertain if they were correct.... We will construe recording acts so as to afford the greatest possible protection to the person who in good faith endeavored to comply with them. (Citation omitted.) We believe Hunt acted reasonably under the circumstances by searching the Mohave County recorder’s office. Finding nothing to confirm the existence of the agreement, he cannot now be charged with having had constructive notice of its existence. (emphasis added)[.]’
112 Ariz. at 311, 541 P.2d at 563.
“That case is similar to the present case in that the claimed rights were not recorded in the office of the county recorder and, thus, constructive notice could not arise from that source. The cases diverge, however, with respect to actual notice. A subsequent purchaser of a servient tenement is bound to take notice of rights that may be evident upon an inspection of the premises as well as those of which he may learn by an inspection of the records. See Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78 (1946); Luke v. Smith, 13 Ariz. 155, 108 P. 494 (1910). Where a reasonably careful inspection of the premises,' followed by inquiry, would disclose the existence of a property right, the grantee of the servient tenement takes title subject to the property right to the extent that his grantor is bound thereby. Putnam v. Dickinson, quoting McHugh v. Haley, 61 N.D. 359, 237 N.W. 835 (1931). Stated another way, every person having actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact is charged with constructive notice of the fact in all cases in which, by prosecuting such inquiry, he might have learned such fact. Bradley v. Frazier Park Playgrounds.
“In Neal v. Hunt, inspection of the ranch property apparently would not have put Hunt on notice of Neal’s water rights. The court determined that since Hunt inspected the records, he had fulfilled his duty of inquiry. In the present case, the trial court found that appellants did not satisfy their duty of inquiry. This conclusion is supported by the record. There is ample evidence that appellants had actual knowledge of the facts upon which the golf course restriction was based. Appellants were told by their seller that the property was restricted to a golf course. In addition, appellants had actual knowledge of the existence and operation of the golf course. The recorded plat and restrictions were further evidence of the golf course use restriction. Finally, appellants knew that the golf course was surrounded by residential lots which were designed to, and did in fact, take advantage of the views afforded by the golf course. The trial court could properly conclude that appellants were not bona fide purchasers without notice. Consequently, they will not be afforded the protection the law gives to an innocent purchaser. See Putnam v. Dickinson; Hackert v. Edwards.”

142 Ariz. at 43-45, 688 P.2d at 689-91.

The questions in the present case have been certified to us while summary-judgment motions are pending in the Bankruptcy Court. The briefs filed with this Court, however, indicate that the parties vigorously dispute whether the facts in the underlying action are analogous to the facts in Shalimar. We agree with the Bankruptcy Court’s statement that the facts in the present matter are similar to the facts in Shalimar, at least insofar as those facts concern most of the matters surrounding the initial development of the property. Thus, we think that the facts in the present matter, when construed in favor of the nonmovants for a summary judgment in the bankruptcy action, are sufficiently similar to the facts in Shalimar for us to decide, as an abstract question of law, whether the rationale employed in the Shalimar decision is consistent with Alabama law regarding implied restrictive covenants. We answer that question in the affirmative.

As noted in our discussion of Tucker, supra, and Collins, supra, our caselaw has recognized at least five methods of establishing that an original grantor of property to be developed as a subdivision intended a common scheme of development. Thus, a party seeking to prove that an original grantor intended a common scheme of development may do so by offering evidence of one or more of the following:

“1) universal written restrictions in all of the deeds of the subdivision; 2) restrictions in a substantial number of such deeds; 3) the filing of a plat showing the restrictions; 4) actual conditions in the applicable subdivision; or 5) acceptance of the actual conditions by the lot owners.”

Tucker, 963 So.2d at 66 (emphasis added; additional citations omitted).

In the present case, it is undisputed that before any of the residential lots were sold, the original grantor, United States Steel Realty Development Division (“USR”), filed a plat that identified the property at issue as a golf course, although the plat did not include language expressly stating that the property could be used only as a golf course. Additionally, it is undisputed that all the deeds to the residential lots in the subdivision include some reference to the property at issue as a golf course. Specifically, the deeds were subject to restrictive covenants that were recorded and that required each residential lot to have a storage area for a golf cart and that prohibited the construction of a fence on any lot adjacent to a fairway, tee, or green on the golf course. Further, it is undisputed that the property at issue has consistently been used exclusively as a golf course. This evidence in sufficiently similar to the above-recognized methods for proving the existence of an intent on the part of USR for a common scheme of development; in particular, the evidence summarized above falls under methods (3) (“the filing of a plat showing the restrictions”) and (4) (“actual conditions in the applicable subdivision”). Tucker, 963 So.2d at 66.

“ ‘Nor is it necessary that the restrictive covenant running with the land should be incorporated in the defendant’s deed to take it out of the influence of the statute of frauds; the servitude may be laid on the property by a separate writing, to which he is not a party, if he is in privity with and claiming under one of the parties thereto, and has notice thereof.
“ ‘Here the servitude was laid on the property by the conveyance made by Brown, Duskin & Heilpern to complainant in pursuance of the general scheme of improvement, affecting not only the lots conveyed to complainant, but unsold lots then held by complainant’s grantors, including the lots afterwards sold to the defendant.
“ ‘This doctrine is neither strange nor anomalous, as appears from the numerous authorities collected in the note to 21 A.L.R. pages 1300-1326, and finds a striking analogy in the doctrine, often recognized by the court, that where the owner of land lays it off in lots, blocks, and streets, as a subdivision, and the sale of lots is made in reference thereto, and purchases are made on the faith of the act, this operates as a dedication of the street and gives the several lot owners an easement thereon, and this is so without reference to the statute.
‘“On the other hand, it would be strange indeed to hold that one may lay off a subdivision for strictly residential purposes, as a general scheme of improvement, and sell and convey to numerous purchasers on the faith thereof, incorporating in their deeds restrictive covenants as to the use in pursuance of such scheme, that the promoters of the general scheme could destroy the scheme, to the detriment of such purchasers, by selling to others without such restrictions, when they had notice of such general scheme.’ ”

Collins, 938 So.2d at 387 (quoting Scheuer v. Britt, 218 Ala. 270, 273-74, 118 So. 658, 662 (1928) (opinion on rehearing)). This Court has also stated, in Virgin v. Garrett, 233 Ala. 34, 37-38, 169 So. 711, 713 (1936) (quoted in Collins, 938 So.2d at 387-88):

“ ‘One of the most practical tests, supported by common sense and common business experience, is, whether the restriction imposed by the grantor or proprietor upon the granted premises would naturally operate to enhance the value of his adjacent premises, whether retained by him or conveyed to another. If this be so, it is a strong circumstance to indicate that the restriction was not intended for the mere personal benefit of the grantor, but as a permanent servitude beneficial to the owner of the land, whoever he may be, and appendant to the premises. Parker v. Nightingale, 6 Allen [Mass.] 341, 83 Am. Dec. 632. The reported cases are numerous, and almost infinite in their phases of variety, where tracts of land in cities are subdivided into lots, and sold to separate purchasers, subject to restrictions as to the kind of occupations which may or may not be carried on upon them, and even as to the nature and dimensions of the buildings to be erected on the premises. The inquiry, in these cases, has generally been, whether the servitudes or restrictions imposed were of such a nature as to operate as an inducement to purchasers; and, if so, the inclination of the courts has been to construe them as appurtenant to the estate, and intended for the protection, rather than personal to the grantor. If appurtenant, it of course follows the land, being assignable with it, and each grantee can enforce it in equity against each other grantee having notice of it.’ ”

(Quoting McMahon v. Williams, 79 Ala. 288, 291 (1885) (emphasis added).)

In addition to the recorded plat maps and the recorded restrictive covenants in the instant case, there is evidence indicating that USR provided many of the original purchasers of residential lots with general information about the subdivision in a set of documents the parties refer to as the “Heatherwood Documents.” These documents, which USR frequently incorporated into the sales contracts for the residential lots, include several references to the property at issue as a golf course and state that each owner of a residence in the subdivision will be required to be a member of the “Heatherwood Golf Club” in some capacity. Additionally, USR distributed marketing materials and advertisements describing the subdivision as a golf-course community, and the sign identifying the neighborhood describes it as “a golf course community.” As the court in Shali-mar concluded based on similar materials, these materials, along with the recorded plat map and the recorded restrictions, are substantial evidence indicating that the original grantor intended a common scheme of development that included the golf-course property as an integral part of that development and as an inducement to purchasers of the residential lots.

Accordingly, we answer the first question in the affirmative. In doing so, however, we emphasize that our answer should not be construed as an expression of an opinion on the merits of the underlying case, because it appears that a number of factual disputes remain to be developed. For example, the extent to which the subsequent purchaser of the property at issue would be bound by the implied restriction that the property be used as a golf course may turn on the extent to which the purchaser had notice of the implied restriction. See Shalimar, 142 Ariz. at 43-45, 688 P.2d at 689-91 (discussing the issue of notice).

Additionally, there may be questions regarding the duration of the implied restrictive covenant and whether changed economic circumstances would warrant a judicial declaration terminating the implied restrictive covenant. See Collins, 938 So.2d at 386 (“ Tor want of a better descriptive term this is styled a reciprocal negative easement. It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration of its period of service or by events working its destruction. It is not personal to owners, but operative upon use of the land by any owner having actual or constructive notice thereof.’ ” (quoting Sanborn v. McLean, 233 Mich. 227, 229-30, 206 N.W. 496, 497 (1925) (emphasis added))). In Shalimar, the court considered the argument “that economic frustration render[ed] the golf course restriction unenforceable.” 142 Ariz. at 45, 688 P.2d at 691. The trial court in Shalimar had rejected that argument on the facts before it, and in affirming the trial court’s judgment, the Arizona Court of Appeals stated:

“[The subsequent purchasers] point out that the trial court found that historically the golf course had not been profitable to its owners. They acknowledge that they have never attempted to operate the golf course themselves, but argue that they should not be required to do so and suffer a loss just to show that the golf course is not profitable. Appellants further argue that to require them to actively operate the golf course, even at a loss, amounts to ‘outright .bondage’ rather than just a negative restraint on the use of the land.
“Although changed circumstances may occur that would justify granting of relief from restrictive covenants, see Williams v. Butler, 76 N.M. 782, 418 P.2d 856 (1966), such changes must frustrate and defeat the original purpose of the restrictions in order to warrant voiding them. Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751 (1958); Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974); Decker v. Hendricks, 7 Ariz.App. 162, 436 P.2d 940 (1968). The trial court determined that the purpose of the golf course has not been defeated nor frustrated by any change affecting the golf course and the Shalimar subdivisions.
“A mere change in economic conditions rendering it unprofitable to continue the restrictive use is not alone sufficient to justify abrogating the restrictive covenant. Welshire, Inc. v. Harbison, 33 Del.Ch. 199, 91 A.2d 404 (1952); Murph[e]y v. Gray. In Williams v. Butler, the Supreme Court of New Mexico held that lack of economic feasibility to develop a tract as a golf course, tennis courts, swimming pool and other athletic facilities was not a ground for relieving landowners of the covenants. The court noted that if the original purpose of the covenant can still be realized, it will be enforced even though unrestricted use of the property would be more profitable to its owner, citing Marra v. Aetna Construction Co., 15 Cal.2d 375, 101 P.2d 490 (1940). See Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132 (1931). We conclude that the record supports the trial court’s denial of the claim that changed circumstances warrant abrogating the golf course restriction.
“We recognize that problems may arise regarding the operation of the golf course and, if they do, it may be necessary for the trial court to consider further orders relating thereto. The trial court believed that proper management on the part of [the subsequent purchasers], together with cooperation from the homeowners, could make the operation of the golf course feasible. We find the judgment of the court to be a reasonable equitable remedy under the difficult circumstances of this case and will not assume that the possibility of future intervention by the court should render the present judgment unenforceable.”

142 Ariz. at 45^6, 688 P.2d at 691-92.

II.
The second certified question asks:
“Whether Alabama law recognizes an implied restrictive covenant that runs with the land when the Deed conveying the property did not contain an express covenant or restriction but a separate Agreement recorded simultaneously with the Deed and recorded immediately thereafter provided that ‘Buyer covenants that it will operate the purchased assets [the real property] as a golf course for the twenty-five (25) years from the date of execution of this Agreement’?”

The third certified question asks:

“Whether Alabama law permits the owner of real property to re-sell that property for any use, not limited to the use of a golf course, when the Deed conveying the property did not contain an express covenant or restriction but a separate Agreement recorded simultaneously with the Deed and recorded immediately thereafter provided that ‘Buyer covenants that it will operate the purchased assets [the real property] as a golf course for the twenty-five (25) years from the date of execution of this Agreement’?”

These questions refer to the transaction between HGC and HH. It is possible that these questions are asking whether the transaction between HGC and HH is evidence that an implied restrictive covenant did not exist at the time USR created the Heatherwood subdivision. It is also possible that these questions are inquiring as to the applicability of the defense of estoppel to HH or HGC. For example, the second question may be asking whether HGC, as the conveyor of the property at issue in a warranty deed to HH, should be estopped from attempting to enforce against HH the implied restrictive covenant that the property would not be used for purposes other than as a golf course. The third question could be seeking guidance on the applicability of the defense of estoppel to HH. Related to these readings of the second and third questions is an inquiry as to the effect of HH’s notice, if any, of an implied restrictive covenant that existed before the transaction between HGC and HH.

Thus, the second and third questions could be interpreted in multiple ways. They also appear to be centered on issues of estoppel and notice under Alabama law — issues on which it appears to us, in light of our answer to the first certified question, that existing Alabama law is sufficient to guide the Bankruptcy Court as the matter proceeds before it. We therefore decline to answer them and decline to attempt to rephrase the questions in an effort to answer them. See generally Sparks v. Total Body Essential Nutrition, Inc., 27 So.3d 489, 492 (Ala.2009) (rephrasing the question certified by the federal district court). If it appears to the Bankruptcy Court after subsequent developments in the matter before it that there is no clear Alabama precedent to guide that court, it may submit any remaining questions to this Court under Rule 18, Ala.R.App. P.

Conclusion

We answer the first question in the affirmative. We decline to answer the second and third questions.

QUESTION 1 ANSWERED; QUESTIONS 2 AND 3 DECLINED.

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

MURDOCK, J., concurs in the result.

      . HGC filed a counterclaim and a cross-claim in the adversary proceeding.

      . First Commercial Bank, which holds a first mortgage on the golf-course property, and HH filed summary-judgment motions on the claims asserted in HGC's counterclaim and cross-claim.

      . Collins includes the following cases in that discussion: Ex parte Frazer, 587 So.2d 330 (Ala.1991); Swanson v. Green, 572 So.2d 1246 (Ala.1990); Hall v. Gulledge, 274 Ala. 105, 145 So.2d 794 (1962); Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936); Scheuer v. Britt, 218 Ala. 270, 118 So. 658 (1928); and Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496 (1925).

      . In a footnote, the Shalimar court stated:
      "The privity requirement for real covenants is replaced by the notice requirement for equitable restrictions. 5 Powell,on Real Property, ¶ 673[2], p. 60-68, n. 142 (1980). The requisite notice can be one of three types: actual, constructive or inquiry notice. Id. at 60-69.”
      142 Ariz. at 44 n. 1, 688 P.2d at 690 n. 1.

      . As set forth in the remainder of our opinion, there are a number of questions — e.g., questions of economic feasibility, estoppel, notice, etc. — pertaining to the continuing enforceability or vitality of the implied restrictive covenant that may exist in this case.

      . Faced with a similar situation in addressing a certified question, this Court has stated:
      “As phrased, the certified questions ask this Court to decide an abstract question of law. Unfortunately, the parties here have, for the most part, focused their arguments on the facts of the case rather than on the wisdom of adopting any of the various answers to this abstract question. Basically, the question is, if all facts are as the plaintiff alleges: Is there a theory upon which the plaintiff may recover in this case? ... The certification of a question of law does not place this Court in a position to decide questions of fact. The defendants' motions for summary judgment are pending in the Federal court. The resolution of factual questions necessary to reach the certified questions is therefore assumed to be in the plaintiff’s favor, and we set out the essentially uncontested facts of the case merely to provide a context within which our answer may be understood.”

        Brown Mach. Works & Supply Co. v. Insurance Co. of North America, 659 So.2d 51, 52-53 (Ala.1995).

      . In its brief to this Court, HH suggests that an express, unambiguous restriction must exist in some of the documents of record in order for a common plan or scheme and an implied restrictive covenant to exist. See HH's initial brief, pp. 12-14. We disagree. A party seeking to prove that an original grant- or intended a common scheme of development may do so by offering evidence of one or more of the methods cited in Collins and Tucker to establish a common plan or scheme. Those methods include express restrictions, but they also include the "actual conditions in the applicable subdivision” or an "acceptance of the actual conditions by the lot owners.”

      . The documents included a document entitled “General Information: Heatherwood GOLF CLUB.” In part, this document states:
      "HEATHERWOOD, a planned residential and golf community, is a development of [USR]....
      “HEATHERWOOD Golf Club (Club) will include recreations facilities which are described on the attached Exhibit ‘1’. USR will retain sole discretion of design and construction of such facilities. USR will construct and own these facilities.”
      (Capitalization in original.) Listed first on Exhibit "I” is "[a]n 18-hole golf course with approximately 6,600 yards in length.” The general-information document also states:
      "USR intends to sell the Club facilities and (1) grants to the Club membership the option to buy the facilities for $1,500,000.00 or (2) in the event Club membership does not exercise said option, USR reserves the right to sell the facilities to others, or (3) USR has the option to sell the facilities to the Club membership in an as-is condition at the time of sale for the amount of the Club Member Escrow Account including accumulated interest.”
      The general-information document notes that the "Club Member Escrow Account” was "established for the sole purpose of purchasing the Club facilities.”
      Finally, the general-information document provides that
      “[e]ach homeowner in HEATHERWOOD must be a member of the Club in one of the following classifications of membership:
      "Full Membership
      "Golf Membership
      "Swim & Racquet Membership
      "Social Membership.
      "In the event a homeowner sells his home, the successor homeowner must become a member of the Club and will be eligible for the same membership classification as the former homeowner.”
      (Capitalization in original.)

      . In one sense, die second question appears to be contingent upon a negative answer to the first certified question. In other words, it is possible to read the second question as asking, in the event this Court answered the first question in the negative, whether the transaction between HGC and HH would create an implied restrictive covenant that runs with the land. To the extent the second certified question may be construed as asking a question dependent upon a negative answer to the first question, we decline to answer it because we have answered the first certified question in the affirmative.


author: BOLIN, Justice. MURDOCK, Justice

text:
    TENNESSEE VALLEY PRINTING COMPANY, INC., and Michelle Rupe Eubanks v. HEALTH CARE AUTHORITY OF LAUDERDALE COUNTY and the City of Florence d/b/a Coffee Health Group.
    1090945.
    Supreme Court of Alabama.
    Oct. 29, 2010.

      Dennis R. Bailey and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
    Larry B. Moore and Ian Michael Berry of Moore & Trousdale, P.C., Florence, for appellee.
    Dennis R. Bailey and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Press Association, in support of the appellants.
    Marc James Ayers, Deane K. Corliss, and James F. Henry of Bradley Arant Boult Cummings LLP, Birmingham; and Gregg Brantley Everitt, gen. counsel, Alabama Hospital Association, for amicus curiae Alabama Hospital Association, in support of the appellee.
    Stanley Rodgers, Joe W. Campbell, George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne PC, Huntsville, for amicus curiae Health Care Authority of the City of Huntsville, in support of the appellee.
   BOLIN, Justice.

The Tennessee Valley Printing Company, Inc., which publishes the TimesDaily newspaper in Florence, and one of its reporters, Michelle Rupe Eubanks (hereinafter collectively referred to as “the TimesDaily”), appeal from the trial court’s judgment holding that the Health Care Authority of Lauderdale County and the City of Florence d/b/a Coffee Health Group (“the Health Care Authority”) do not have to disclose certain records requested by the TimesDaily pursuant to the Open Records Act, § 36-12-40, Ala. Code 1975.

Facts and Procedural History

The Health Care Authority was organized pursuant to the Health Care Authorities Act of 1982 (“the HCA”), codified at § 22-21-310 et seq., Ala.Code 1975. It is a public corporation that owns the Eliza Coffee Memorial Hospital in Florence and the Shoals Hospital in Muscle Shoals. In fiscal years 2008 and 2009, the Health Care Authority failed to meet the financial covenants of bonds it had issued to the public. The Health Care Authority hired a financial consultant, FTI Consulting, Inc., to study the operations and business prospects of the two hospitals owned by the Health Care Authority and to make recommendations for improvement. In June 2009, FTI delivered its report to the board of directors of the Health Care Authority. The Health Care Authority then began to search for a transaction partner that would allow it to retire the bond indebtedness and to provide additional capital for operating the two hospitals. The Health Care Authority received four bid proposals from potential partners. The Health Care Authority promised the • potential partners that their bids would be confidential. On February 15, 2010, Eu-banks requested all electronic-mail correspondence between the employees of the two hospitals, the Health Care Authority board of directors, and any elected official regarding the sale of the two hospitals. On February 23, 2010, the board of directors of the Health Care Authority met and voted 10 to 1 to accept the proposal received from RegionalCare Hospital Partners, Inc. Eubanks made several oral and written requests for information, including the four proposals, the letter of intent from RegionalCare, the report issued by FTI, and any preliminary draft of any contract for the sale of the two hospitals.

On March 10, 2010, the TimesDaily filed a verified complaint for declaratory and injunctive relief against the Health Care Authority. The TimesDaily alleged that the Health Care Authority had been engaged in efforts to sell and/or to transfer the management of two hospitals subject to the Health Care Authority’s control and that, as a governmental entity, the Health Care Authority’s records regarding the proposed sale and/or transfer of public assets were subject to the Open Records Act. The TimesDaily further alleged that the ownership and management of the hospitals was a matter of public concern and that the Health Care Authority had refused to provide information regarding the proposed sale and/or transfer of management. On March 11, 2010, the TimesDaily filed a motion for a temporary restraining order, seeking to delay a proposed vote by the Florence City Council on a letter of intent from RegionalCare to purchase the publicly owned hospital properties under the Health Care Authority’s jurisdiction. That same day, the TimesDaily amended its complaint to petition for a writ of mandamus requiring the Health Care Authority to allow it to inspect and copy certain requested records regarding the proposed sale.

On March 12, 2010, the Health Care Authority filed an answer to the verified complaint, as amended, generally denying the allegations, and it filed a motion in opposition to the request for a temporary restraining order. On March 23, 2010, the trial court entered an order holding that the TimesDaily was not entitled to the requested information:

“[T]he legislature granted to Public Health Authorities, including the defendant, greater flexibility than other public entities and in exempting from the Open Meeting Act and ‘other similar law’ exempted their administrative and proprietary acts from the Open Records Act.[] This however would not exempt government functions from the Open Records Act.
“The Court finds that the transaction in question is an administrative or proprietary act and the requested records are therefore not subject to the Open Records Act. To find otherwise would make to no avail the flexibility envisioned by the Legislature in [§] 22-21-312(3) and the exemption in [§] 22-21-316.”

The TimesDaily timely appealed. In its brief on appeal, the TimesDaily does not refer to its request for the report from FTI. The Health Care Authority recognized this omission in its brief, and, in its reply brief, the TimesDaily does not refer to its request for the FTI report. We will assume, therefore, that the TimesDaily is no longer seeking access to that report.

Discussion

The issue is whether the Health Care Authority, which was established pursuant to the HCA, has to disclose to the Times-Daily records regarding the sale of the assets of two hospitals under its control, in accordance with the Open Records Act.

Section 36-12^40, the Open Records Act, provides, in pertinent part, that “[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise provided by statute.”

“The Open Records Act is remedial and should therefore be liberally construed in favor of the public. As we stated in Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989):
“ ‘It is clear from the wording of [the Open Records Act] that the legislature intended that the statute be liberally construed. In addition, we note, statutes intended for the public benefit are to be construed in favor of the public. Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970).’ ”

Water Works & Sewer Bd. of Talladega v. Consolidated Publ’g, Inc., 892 So.2d 859, 862 (Ala.2004). “[T]he party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them.” Chambers v. Birmingham News Co., 552 So.2d 854, 856-57 (Ala.1989).

The term “public writing” is not defined in the Open Records Act. However, in Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala.1981), this Court stated with regard to § 36-12-40 that a “ ‘public writing’ ... is such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by [the] citizens.”

In creating a State Records Commission, the legislature in § 41-13-1, Ala. Code 1975, defined the term “public records”:

“As used in this article, the term ‘public records’ shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer.”

Although § 41-13-1 is included in Title 41, which regulates the retention and disposal, of public records, “we doubt the Legislature intended to make a distinction between a ‘public writing’ and a ‘public record.’” Stone v. Consolidated Publ’g, 404 So.2d at 680. This Court has applied the definition from Stone in several cases. See Ex parte Gill, 841 So.2d 1231, 1233-34 (Ala.2002); Birmingham News Co. v. Muse, 638 So.2d 853, 854 (Ala.1994); and Chambers v. Birmingham News Co., 552 So.2d at 856.

In the HCA, the legislature' authorized the creation of health-care authorities as public corporations in order to effectuate its intent, which it set out in § 22-21-312, Ala.Code 1975:

“The Legislature hereby finds and declares:
“(1) That publicly-owned (as distinguished from investor-owned and community-nonprofit) hospitals and other health care facilities furnish a substantial part of the indigent and reduced-rate care and other health care services furnished to residents of the state by hospitals and other health care facilities generally;
“(2) That as a result of current significant fiscal and budgetary limitations or restrictions, the state and the various counties, municipalities, and educational institutions therein are no longer able to provide, from taxes and other general fund moneys, all the revenues and funds necessary to operate such publicly-owned hospitals and other health care facilities adequately and efficiently; and
“(3) That to enable such' publicly-owned hospitals and other health care facilities to continue to operate adequately and efficiently, it is necessary that the entities and agencies operating them have significantly greater powers with respect to health care facilities than now vested in various public hospital or health-care authorities and corporations and the ability to provide a corporate structure somewhat more flexible than those now provided for in existing laws relating to the public hospital and health-care authorities.
“It is therefore the intent of the Legislature by the passage of this article to promote the public health of the people of the state (1) by authorizing the several counties, municipalities, and educational institutions in the state effectively to form public corporations whose corporate purpose shall be to acquire, own and operate health care facilities, and (2) by permitting, with the consent of the counties or municipalities (or both) authorizing their formation, existing public hospital corporations to rein-corpórate hereunder. To that end, this article invests each public corporation so organized or reincorporated hereunder with all powers that may be necessary to enable it to accomplish its corporate purposes and shall be liberally construed in conformity with said intent.”

The primary rule of rules of statutory construction is to ascertain the intent of the legislature. With that in mind, this Court has stated:

“One of the fundamental rules of statutory construction is that a court is to determine and give effect to the Legislature’s intent in enacting a statute. Norfolk S. Ry. Co. v. Johnson, 740 So.2d 392 (Ala.1999). In construing acts of the Legislature, we ascertain its intent from the language used in the statute itself, if possible, as well as from the reason and necessity for the act and the goals the Legislature sought to accomplish. McGuire Oil Co. v. Mapco, Inc., 612 So.2d 417 (Ala.1992); Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). If the statute is ambiguous, then we ‘may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another.’ Norfolk S. Ry. Co., 740 So.2d at 396.”

Bleier v. Wellington Sears Co., 757 So.2d 1163, 1168 (Ala.2000).

The open-meetings law was first enacted in 1915 and the Open Records Act first appeared in the 1923 Code of Alabama. When the HCA was adopted in 1982, the legislature expressly exempted meetings of health-care authorities from the open-meetings law. As originally enacted, § 22-21-316(c) provided: “The board shall hold regular meetings ... and must upon call of the chairman of the authority ... hold a special meeting, none of which meetings shall be subject to the provisions of section 13A-14-2 or other similar law.” The legislature specifically exempted health-care authorities from the open-meetings law. Had the legislature intended to exempt health-care authorities from the Open Records Act, it could easily have done so. Both the open-meetings law and the Open Records Act were in existence when the legislature enacted the HCA. “[T]he Legislature, in enacting new legislation, is presumed to know the existing law.” Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998).

The phrase “or other similar law” in § 22-21-316(c) is used after the specific reference to the open-meetings law. We recognize that both the open-meetings law and the Open Records Act have the general goal of transparency in government and the peoples’ right to access to public information. However, we cannot infer that the legislature intended to exempt healthcare authorities from the Open Records Act by its use of the phrase “or other similar law” because, again, had the legislature wanted to exempt the records of local health-care authorities from the Open Records Act, it could have specifically done so. It appears that the phrase “or other similar law” directly references § 13A-14-2, and, in fact, the legislature in 2005 repealed § 13A-14-2 and adopted a new open-meetings law, which contains more detail and regulations on public meetings, i.e., an “other similar law.” Moreover, § 36-12-40 provides for exceptions to the Open Records Act “otherwise expressly provided by statute,” and the legislature has created numerous statutory exemptions to the Open Records Act for entities whose records would “otherwise” be subject to public disclosure. See, e.g., § 12-21-3.1, Ala.Code 1975 (law-enforcement investigative reports are not public records and are protected from disclosure); § 12-21-6, Ala.Code 1975 (hospital records produced pursuant to a subpoena are confidential, other than to those who are provided access by the court order); § 22-6-9, Ala.Code 1975 (identity of Medicaid recipients); § 22-11A-2, AIa.Code 1975 (reports required by the State Board of Health regarding cases or suspected cases of notifiable diseases or health conditions are confidential, with certain exceptions); and § 22-11A-14, Ala.Code 1975 (reports required of physicians diagnosing or treating sexually transmitted diseases are confidential, with certain exceptions). Had the legislature intended to exempt the records of health-care authorities from public disclosure, it could have made those records confidential as it has done on numerous occasions.

Additionally, the legislature requires that health-care authorities established under the HCA keep records of closed meetings and that those records are prima facie evidence of the matters of the health-care authority. In § 22 — 21—316(c), after exempting health-care authorities from the open-meetings law, the legislature went on to provide:

“Any matter on which the board is authorized to act may be acted upon at any regular, special or called meeting. At the request of any director, the vote on any question before the board shall be taken by yeas and nays and entered upon the record. All resolutions adopted by the board shall constitute actions of the authority, and all proceedings of the board shall be reduced to writing and signed by the secretary of the authority and shall be recorded in a well-bound book. Copies of such proceedings, when certified by the secretary of the authority, under the seal of the authority, shall be received in all courts as prima facie evidence of the matters and things therein certified.”

Under the HCA, health-care authorities are exempt from certain laws applicable to governmental entities. Health-care-authority board members, officers, and employees are exempt from the Ethics Act. § 22-21-334, Ala.Code 1975. Health-care authorities do not have to comply with competitive-bid laws. § 22-21-335, Ala. Code 1975. The legislature provided for these express exemptions along with the express exemption from the open-meetings law. However, the HCA makes no reference to the Open Records Act.

Because the HCA does not prevent disclosure of the requested records, we now turn to our caselaw regarding the Open Records Act. In Stone, 404 So.2d at 681, we defined a “public writing” as “such a record as is reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by [the] citizens.” In Water Works & Sewer Board v. Consolidated Publishing, supra, it was necessary to define “public officer”:

“The term ‘public officer’ is defined in the Alabama Code, not coincidentally, in the same title and chapter as the Open Records Act. We choose to employ this definition of ‘public officer or servant’ in our application of the Stone definition of ‘public writing.’ Section 36-12-1, Ala. Code 1975, reads:
“ ‘A public officer or servant, as used in this article, is intended to and shall include, in addition to the ordinary public offices, departments, commissions, bureaus and boards of the state and the public officers and servants of counties and municipalities, all persons whatsoever occupying positions in state institutions.’ ”

Consolidated Publ’g, 892 So.2d at 863. In Consolidated Publishing, this Court held that because the water works and sewer board, a public corporation, had the qualities of an agency of the City, for the purposes of the Open Records Act its employees are “public officers” of the City and are subject to the Open Records Act. Consolidated Publishing sued the water works board and its records custodian to force the water works board to allow it access to certain of the board’s records pursuant to the Open Records Act. The water works board argued that because it was a public corporation, it was not subject to the Open Records Act. The trial court held that the water works board was subject to the Open Records Act but that some of the records Consolidated Publishing sought were excluded from public disclosure. The water works board appealed from the holding that it was subject to the Open Records Act, and Consolidated Publishing appealed from the holding that certain records it sought were shielded from public disclosure.

This Court noted in Consolidated Publishing that the Open Records Act should be construed in favor of the public because the legislature intended such a construction and the Open Records Act was intended for the public benefit. The Open Records Act provides that “[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.” The Court, using the definition from Stone, stated that a public writing is a record reasonably necessary to record the business and activities required of a public officer. Therefore, if the employees of the water works board were public officers, then their records would be subject to the Open Records Act. We noted that the water works board provides the residents of the City with water and sewer service, a municipal function. We held that because a water works board performs a municipal function, it is an agency of the municipality it serves. Therefore, the employees of the water works board were public officers and its records were subject to the Open Records Act.

In the present case, we conclude that the Health Care Authority is a local governmental entity. We find support for this in the HCA itself, which provides that a health-care authority is designated as an instrumentality of its authorizing subdivision. § 22-21-318(c)(2). Here, that would be Lauderdale County and the City of Florence. Eight of the 11 members of the board of the Health Care Authority are either members as a result of their elected position or appointed by the City and the County in accordance with § 22-21-316(a). Unlike a private entity, the Health Care Authority has the power of eminent domain, to take private property for public use. § 22-21-319. Public health-care authorities are exempt from usury laws, interest laws, § 22-21-328, Ala.Code 1975, and from paying property or income taxes. § 22-21-333, Ala.Code 1975. The income from securities issued by a health-care authority is not taxable. § 22-21-333. Health-care authorities can also be designated as the recipient of proceeds from public-hospital taxes. § 22-21-338, Ala. Code 1975. It is important to note that while health-care authorities have the power to purchase property, they are prohibited from selling “substantially all [their] assets” “without the prior approval of the governing body of each authorizing subdivision.” § 22 — 21—318(a)(7), Ala.Code 1975.

Also, the attorney general addressed this question in an advisory opinion, which we find supportive of our conclusion that the Health Care Authority is a governmental entity. See Ala. Atty. Gen. Op. 2008-004 (Oct. 2, 2007). In 2007, the Henry County Health Care Authority, Inc., asked the attorney general for an advisory opinion as to whether it had to disclose to the public the annual salaries of top-level-management executives who were hired without advertisement by the health-care authority and its subsidiaries, based upon the degrees and professional experience those professionals possessed. The health-care authority was established pursuant to the HCA, and it owned a hospital and two assisted-living facilities. The health-care authority was composed of nine members, five of whom were appointed by the county commission and four of whom were selected by the health-care authority. The health-care authority received a portion of the county’s ad valorem tax revenues. The health-care authority argued that disclosure of the executives’ salaries to the public would compromise its ability to remain competitive in recruiting top-level management and in hiring, as well as retaining, such employees whose salaries would be disclosed. The health-care authority argued that it was neither fully private nor fully governmental in nature and not subject to the Open Records Act. The attorney general opined that the health-care authority was a public corporation and that pursuant to § 22-21-318(c)(2), the health-care authority was designated as an instrumentality of its authorizing subdivisions. The attorney general further noted that a majority of the board of directors was appointed or elected by the governing body in accordance with § 22-21-816(a). The attorney general also opined that in accordance with the Open Records Act and the holding in Water Works & Sewer Board v. Consolidated Publishing, supra, the business records of the health-care authority were public records and the salaries paid to top-level-management executives employed by the health-care authority were a matter of public record. The attorney general also referred to two earlier attorney general opinions that held that the contracts of coaches at a state university are public records and that salary, race, and sex were among the information that must be disclosed, and an opinion that determined that information concerning the names, titles, and compensation of county employees is a matter of public record to be made available to the public.

We also find support for our conclusion in two federal eases addressing this issue. In Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1461 (11th Cir.1991), the court, in addressing the HCA, held: “It is apparent from [the HCA] that the Alabama Legislature made any hospital organized pursuant to the [HCA] a local government entity, labeling such a hospital a ‘political subdivision of the state.’ ” In Askew v. DCH Healthcare Authority, 995 F.2d 1033 (11th Cir.1993), the plaintiffs brought an antitrust action against a health-care authority to prevent the authority from effectuating its proposed acquisition of a private health-care facility. The federal district court denied the health-care authority’s motion for a summary judgment, ultimately entered a judgment for the plaintiffs, and the authority appealed. The United States Court of Appeals for the Eleventh Circuit reversed the judgment in favor of the plaintiffs, holding that the health-care authority qualified as a “political subdivision of the state” for purposes of antitrust immunity and that, therefore, it was authorized by the state to acquire the private health-care facility. 995 F.2d at 1037.

We now turn to whether the requested documents are exempt under the exceptions set out in Stone. In Stone, we stated:

“This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of s 36-12-40. McMahan v. Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason. State v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). [1] Recorded information received by a public officer in confidence, [2] sensitive personnel records, [3] pending criminal investigations, and [4] records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961).”

404 So.2d at 681.

In Water Works & Sewer Board v. Consolidated Publishing, this Court declined to abandon the balancing test adopted in Stone absent legislative action. The balancing test requires that the interest of the citizens in monitoring public officers be balanced against the interest of the general public in “having the business of government carried on efficiently and without undue influence.” 404 So.2d at 681.

“However, it must be noted that this ‘rule of reason’ shall not be applied so as to hamper the liberal construction of § 36-12-40. The exceptions set forth in Stone must be strictly construed and must be applied only in those cases where it is readily apparent that disclosure will result in undue harm or embarrassment to an individual, or where the public interest will clearly be adversely affected, when weighed against the public policy considerations suggesting disclosure. These questions, of course, are factual in nature and are for the trial judge to resolve.”

Chambers, 552 So.2d at 856.

The two exceptions applicable here are: 1) recorded information received by a public officer in confidence and 2) records the disclosure of which would be detrimental to the best interest of the public. We recognize that the Health Care Authority assured the four bidders that their bids for purchasing the assets of the Health Care Authority would be confidential.

In Birmingham News Co. v. Muse, 638 So.2d 853 (Ala.1994), the issue was whether Auburn University’s response to an inquiry from the National Collegiate Athletic Association (“NCAA”) was a public writing subject to inspection and copying pursuant to the exceptions set out in Stone as information received by a public officer in confidence. The record in Muse established that NCAA investigations are conducted without subpoena power, which may require promises of confidentiality to obtain recorded statements from witnesses who are often minors and student athletes. The Court noted that Auburn University, as a member of the NCAA, was functioning as a member of a voluntary, self-policing institution and that there is no state law requiring Auburn University to respond to NCAA inquiries or investigations. Although Auburn University is a state institution, its response did not necessarily become a public record subject to disclosure simply because of that fact. Accordingly, there was no showing that Auburn University’s response was a public record as a matter of law. This Court went on to apply Stone’s “rule of reason” in determining whether Auburn University’s response and supporting documents were public records subject to disclosure and that the confidentiality inherent in the investigation should be honored unless overcome by a compelling state interest. Muse, 638 So.2d at 857. Because the trial court had not viewed the documents in question, the Court remanded the case for an in camera review and a determination as to whether each document was subject to public disclosure.

In the present case, unlike Muse, there was no evidence indicating that the potential bids or the letter of intent to purchase a publicly owned hospital required confidentiality. The Health Care Authority contends that if bidders are not protected by confidentiality, they might not submit a bid because sensitive corporate information would be released to other corporations. A general suggestion by a governmental entity that disclosure would likely result in competitive harm to the person submitting the information is not sufficient. See Burke Energy Corp. v. Department of Energy, 583 F.Supp. 507, 511 (D.C.Kan.1984) (“[T]o support a finding of confidential information, there must be independent evidence to support it, such as evidence that disclosure will likely result in harm to the person’s competitive position; a blanket allegation of harm does not alone constitute sufficient evidence.”); Black Hills Alliance v. United States Forest Serv., 603 F.Supp. 117 (D.C.S.D.1984) (requirement that affiants are competent to testify whether disclosure would likely result in substantial competitive harm to the person submitting the information was questioned where affiants are representatives of the agency possessing the information rather than the corporation that submitted it). This case is also distinguishable from Muse in that public approval of the sale of the assets of the Health Care Authority is required by state law. Additionally, no informants or minors are involved in this case.

“[E]ntities doing business with government agencies and submitting records to them in connection therewith should be aware that regardless of agency promises that documents will be kept confidential, public record suits can nevertheless be successful. Thus, it is not safe to assume confidentiality agreements with government agencies will be legally enforceable.” Theresa M. Costonis, What Constitutes Commercial or Financial Information, Exempt from Disclosure Under State Freedom of Information Acts, 5 A.L.R. 6th 327 § 3 (2005) (footnotes omitted).

“ ‘[A] private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.’ [Sepro Corp. v. Florida Dep’t of Envtl. Prot., 839 So.2d 781, 784 (Fla.Dist.Ct.App.2003) ]. The right to examine these records is a right belonging to the public; it cannot be bargained away by a representative of the government.”

National Collegiate Athletic Ass’n v. Associated Press, 18 So.3d 1201, 1208-09 (Fla.Dist.Ct.App.2009). In San Gabriel Tribune v. Superior Court, 143 Cal.App.3d 762, 192 Cal.Rptr. 415 (Cal.Ct.App.1983), a newspaper sought disclosure of financial statements prepared in connection with a municipality’s exclusive long-term waste-disposal contract with a garbage company. The California court concluded that the garbage company waived any privacy interests it may have had by voluntarily injecting itself into the public arena by seeking a rate increase and submitting financial data in support of the increase.

The other applicable exception from Stone that may prevent disclosure of the requested documents is whether the records sought are records the disclosure of which would be detrimental to the best interest of the public. In Chambers, supra, a newspaper requested applications, resumés, and other related materials regarding the position of coordinator of water and sewer services for the county. The county commission and county personnel department refused the newspaper’s request on the grounds that the documents were recorded information received by a public officer in confidence, that they were sensitive personnel records, and that they were records the disclosure of which would be detrimental to the best interest of the public. The trial court ordered that the documents be disclosed, noting that none of the documents contained a request to be kept confidential and that no promise of confidentiality was made, that the documents were public writings necessary to carry out the business of a public officer, and that none of the documents contained any sensitive material that would require an exception to disclose. This Court affirmed the judgment of the trial court, stating:

“Doubtless, exceptions to the broad language of § 36-12-40 are needed and should be applied under appropriate circumstances. But, we emphasize that these exceptions must be narrowly construed and their application limited to the circumstances stated herein, for it is the general rule, and has been the policy of this state for a number of years, to advocate open government. The Stone exceptions were not intended, nor shall they be used, as an avenue for public officials to pick and choose what they believe the public should be made aware of.”

552 So.2d at 857.

In the present case, the Health Care Authority states in its brief:

“[The Health Care Authority’s] interest is not rooted in preventing disclosure of confidential information to the media or concerned citizens. Instead, the threat lies with the harm that will occur if sensitive, confidential information is disclosed to them competitors. Instead of viewing this as an attempt by [the Health Care Authority] to withhold secret information, [TimesDaily’s] Brief at 15-17, [TimesDaily] and this Court should view [the Health Care Authority’s] actions for what they truly are: an effort to balance the public’s need to receive information with the need to maintain confidentiality in business transactions for the benefit of [the Health Care Authority’s] patients, employees, doctors and the surrounding community.
“[The Health Care Authority] recognizes [its] responsibility to be as forthcoming with the public as possible, which is why [it] released material terms of the transaction. This does not mean, however, that the need to provide information to the public always supercedes the need to prevent the release of sensitive information to competitors. Instead, some sensitive terms must be protected from disclosure for the sake of the hospitals’] ability to survive in the health care market. It is therefore in the public’s best interest for this Court to recognize the unique nature of health care authorities, and protect the records regarding the sale of [the Health Care Authority’s] assets from disclosure.”

The Health Care Authority fails to explain how the release of the proposals of the four bidders, the letter of intent from the winning bidder, and electronic mail from hospital employees and board members regarding the sale would be a detriment to the sale of the Health Care Authority’s assets. At this point, the four bidders have presented them proposals. There is no danger of one bidder seeing another bidder’s proposal before presenting a bid to the Health Care Authority. The Health Care Authority, with one dissent, voted to accept the winning bidder’s letter of intent to purchase. When the trial court issued its order, it appears that the city council and county commission had voted on the letter of intent. The Health Care Authority’s argument that competitive harm will befall the hospitals if those documents are now disclosed or that the disclosure will affect the hospitals’ ability to survive in the health-care market is unpersuasive because the requested documents relate to the sale of the assets of the hospitals. The sale of the assets of the public hospitals eliminates their need to remain competitive with private hospitals.

Conclusion

The Health Care Authority’s assets were accumulated through the use of statutorily authorized governmental powers, including eminent domain and the issuance of tax-free bonds, and had the enabling act for the Health Care Authority so provided, taxation would have been an available source of revenue. The public should be allowed to scrutinize the sale of those assets. We agree with the Health Care Authority that documents relating to the day-to-day operations of the hospitals would likely not be subject to public disclosure. Documents relating to patients, physicians, and employees of the hospitals are protected from disclosure under numerous state and federal laws. Additionally, the HCA protects public health-care authorities from the competitive-bid process, which prevents certain disclosures and promotes competition with private hospitals. However, we are limited to the facts before us, and the documents requested here relate only to the final sale of those assets. Pursuant to § 22-21-339, Ala.Code 1975, when a health-care authority has no outstanding securities and when no other obligations assumed by the authority are outstanding, the board of directors may declare the authority dissolved. The sale of assets of a public hospital and possibly the ultimate disposition of that hospital, which provides care to the citizens in the community, should be a matter open for public discourse. This follows the legislature’s requirement that elected officials of the health-care authority’s authorizing subdivisions (here the City Council of Florence and the Lauderdale County Commission) vote on the sale of those public assets.

“Citizens are entitled to information regarding the affairs of their government. Alabama’s Open Records Act first appeared in the 1923 Code of Alabama and represents a long history of openness. The Open Records Act is remedial and should therefore be construed in favor of the public. The statutory and judicially created exceptions generally protect an individual’s privacy, the integrity of a criminal investigation, public safety and security, or privileged information. The exceptions to the Open Records Act should be strictly construed, because the purpose of the Open Records Act is to permit the examination of public writings and records.”

Allen v. Barksdale, 32 So.3d 1264, 1274 (Ala.2009).

Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings. As stated above, the sale of the assets of the Health Care Authority, a public corporation, is subject to the Open Records Act. This Court has not reviewed the requested documents submitted under seal, and we remand this cause for the trial court to again review the requested documents to ascertain whether any statutory exemptions or other exemptions provided by law are applicable, consistent with this opinion.

REVERSED AND REMANDED.

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

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

MURDOCK, Justice

(concurring specially in part and dissenting in part).

The trial court’s judgment in favor of the Health Care Authority of Lauderdale County and the City of Florence d/b/a Coffee Health Group (“the Health Care Authority”) was based on its conclusion that the Health Care Authorities Act of 1982, § 22-21-310 et seq., Ala.Code 1975 (“the HCA”), excepted the Health Care Authority from Alabama’s Open Records Act. I concur in the main opinion insofar as it concludes that the trial court erred in this legal conclusion. My view of this issue is influenced by the fact that the focus of the pertinent section of the HCA, § 22-21-316(c), Ala.Code 1975, is not on exempting the Health Care Authority itself from the open-meetings law and “similar laws,” but on exempting the meetings of the Health Care Authority from the open-meetings law and similar laws: “The board shall hold regular meetings ..., may hold other meetings ..., and must upon call of the chairman of the authority ... hold a special meeting, none of which meetings shall be subject to the provisions of [the open-meetings law] or other similar law.”

Although I thus agree with the conclusion reached in the main opinion that the trial court’s judgment was based on an improper rationale (i.e., that the Health Care Authority is not governed by the Open Records Act) and therefore must be reversed for that reason, I decline to join in the discussion that follows this conclusion.

In Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala.1981), this Court provided in reference to the Open Records Act the following definition of a “public writing”: a record “reasonably necessary to record the business and activities required to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens.” (Some emphasis added.) We also identified in Stone some “areas” where, even if a document constitutes a “public writing” or public record, it may be exempt from the requirements of the Open Records Act, and further noted the “rule of reason” and “balancing” that are to attend the application of the stated exemptions or “limitations”:

“This is not to say, however, that any time a public official keeps a record, though not required by law, it falls within the purview of § 36-12-40. McMahan v. Trustees of the University of Arkansas, 255 Ark. 108, 499 S.W.2d 56 (1973). It would be helpful for the legislative department to provide the limitations by statute as some states have done. Absent legislative action, however, the judiciary must apply the rule of reason. State v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977). [1] Recorded information received by a public officer in confidence, [2] sensitive personnel records, [3] pending criminal investigations, and [4] records the disclosure of which would be detrimental to the best interests of the public are some of the areas which may not be subject to public disclosure. Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of government carried on efficiently and without undue interference. MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961).”

404 So.2d at 681. In Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989), this Court stated that the questions that must be answered “are factual in nature and are for the trial judge to resolve.” (Emphasis added.)

It may well be that the bids submitted by the unsuccessful bidders in this case meet the above-quoted definition of a “public writing” as set out in Stone. At the least, it could be argued that the drafts of the definitive agreement and internal emails of employees and board members do not meet that definition. In each instance, however, the determination whether the documents in question meet that definition and, even if they do, how then to apply the above-referenced “rule of reason” and “ba-lanc[ing]” tests in order to determine if those documents fall within an exemption, are tasks that “are factual in nature and are for the trial judge to resolve.” To the extent the main opinion does not leave it to the trial court to address these matters on remand, I respectfully dissent.

      . The Health Care Authority board of directors has 11 members: the chairman of the Lauderdale County Commission, the mayor of the City of Florence, 6 residents of the county and city appointed by the county commission (3) and the city council (3), and 3 physicians appointed by the staff of the hospitals owned by the Health Care Authority.

      . In supporting its conclusion that the Health Care Authority was acting in the nature of a private business, the trial court used the phrase "administrative and proprietary” regarding the records created by a health-care authority. It appears that the trial court is referring to the difference between governmental functions and the functions of private business. See City of Selma v. Dallas County, 964 So.2d 12 (Ala.2007) (holding that a governmental function is not proprietary in nature but is performed under the police power to promote the health and well being of the people). Nothing indicates that a "trade secret” or other proprietary information is included in the requested documents.

      . Effective October 1, 2005, § 13A-14-2 was repealed. See Act No. 2005-40, Ala. Acts 2005. The reference in § 22-21-316(c) has been changed to "Chapter 25A, Title 3ó.”

      . Section 36-12-40 contains a specific exemption for "registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state.” After the terrorist attacks of September 11, 2001, § 36-12-40 was amended to add an exemption for certain homeland-security information.


author: MOORE, Judge. BRYAN, Judge,

text:
    L.E.O. and P.O. v. A.L. and J.I.P.
    2080395.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.
    Rehearing Denied Jan. 15, 2010.
    Joan-Marie Dean, Huntsville, for appellants.
    Christina L. Dixon, Huntsville, for ap-pellees.
   MOORE, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala.R.App. P.; § 12-15-1(10), Ala.Code 1975 (now codified at § 12-15-101(8), Ala.Code 1975); J.W. v. N.K.M., 999 So.2d 526 (Ala.Civ.App.2008); T.T.T. v. R.H., 999 So.2d 544 (Ala.Civ.App.2008); A.J.H.T. v. K.O.H., 983 So.2d 394 (Ala.Civ.App.2007); J.S.M. v. P.J., 902 So.2d 89, 95 (Ala.Civ.App.2004); and O.L.D. v. J.C., 769 So.2d 299 (Ala.Civ.App.1999).

J.LP.’s request for the award of an attorney fee on appeal is denied.

PITTMAN and THOMAS, JJ., concur.

THOMPSON, P.J., dissents, without ■writing.

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I respectfully dissent. In my opinion, L.E.O. and P.O. have demonstrated on appeal that the Madison Circuit Court was plainly or palpably wrong in concluding that the child in question, born in June 2003, was not a dependent child pursuant to § 12-15-1(10), AIa.Code 1975 (now codified at § 12-15-101(8), Ala.Code 1975).

L.E.O. and P.O. produced substantial evidence indicating that J.I.P., the child’s father, had abandoned the child. Specifically, L.E.O. and P.O. produced evidence indicating that, for three years prior to the final hearing in this case, the father had not paid any support for the child and indicating that father had not seen the child since August 2005. The father admitted that he did not know where the child went to school or who the child’s doctors were. The father testified that his visitation with the child had been thwarted by the child’s mother and that he had been unaware that the child was living with L.E.O. and P.O. The father’s abandonment of the child for approximately three years cannot be excused simply because he contends that he was unaware of the child’s circumstances. The fact that he was unaware of who was caring for and providing for his child during that time further convinces me that he had abandoned the child. The evidence produced by L.E.O. and P.O. unequivocally shows that the father had “with[held] from the child, without good cause or excuse, ... his presence, care, love, protection, maintenance, or the opportunity for the display of filial affection,” had “fail[ed] to claim the rights of a parent,” and had “fail[ed] to perform the duties of a parent.” § 26-18-3(1), Ala.Code 1975 (now codified at § 12-15-301(1), Ala.Code 1975), thereby demonstrating that the child was dependent.