author:
STUART, Justice. MOORE, Chief Justice
      MURDOCK, Justice

text:
    ESTES OIL COMPANY, INC. v. SAM’S REAL ESTATE BUSINESS TRUST, INC.
    1121365.
    Supreme Court of Alabama.
    May 2, 2014.
    Rehearing Denied June 13, 2014.
    John M. Kennemer, Tuseumbia; and B.T. Gardner, Jr., Tuseumbia, for appellant.
    Kirkland E. Reid of Jones Walker LLP, Mobile; and Larry B. Moore of Moore, Berry & Linville, P.C., Florence, for appel-lee.
   STUART, Justice.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.

BOLIN, PARKER, MAIN, and WISE, JJ., concur.

MOORE, C.J., and MURDOCK, SHAW, and BRYAN, JJ., dissent.

MOORE, Chief Justice

(dissenting).

Because I believe that the trial court incorrectly construed the agreement the interpretation of which is at issue in this case, I respectfully dissent from affirming its judgment.

I. Facts and Procedural History

In 1991, Wal-Mart Stores, Inc. (“Wal-Mart”), and Estes Oil Company, Inc. (“Estes”), entered into an “Access and Facility Easements” agreement (“the agreement”) regarding the use of their adjacent properties in Florence. Wal-Mart’s property was termed “Tract 1” in the agreement; Estes’s property was termed “Tract 3.” Paragraph 11 of the agreement states:

“Competing Businesses. Wal-Mart covenants that as long as Estes or any affiliate of Estes is the user of Tract 3, either as owner or lessee, no portion of Tract 1 shall be leased or occupied by or conveyed to any other party for use as an auto gasoline station.”

Wal-Mart built a Sam’s Wholesale Club on Tract 1. On October 21, 1996, Sam’s Real Estate Business Trust, Inc. (“Sam’s REBT”), was organized as a business entity in Delaware. On October 31, 1996, Wal-Mart conveyed Tract 1 by a warranty deed to Sam’s REBT, which on March 13, 1997, registered to do business as a foreign corporation in Alabama. In 2003, Wal-Mart recorded in Lauderdale County the warranty deed conveying Tract 1 to Sam’s REBT. In 2012, Sam’s REBT began building a gasoline station on Tract 1. Paragraph 9 of the agreement states: “The rights and obligations contained herein shall run with the title to Tract 1 and Tract 3 and shall bind and insure [sic] to the benefit of the respective successors and assigns of the parties hereto.”

Upon discovering that Sam’s REBT was building a gasoline station on Tract 1, Estes, which had operated a gasoline station on Tract 3 since 1984, sued Sam’s REBT, seeking injunctive relief to halt the construction of the gasoline station. Sam’s REBT counterclaimed, seeking a judgment declaring that the agreement did not forbid its construction of a gasoline station on Tract 1. The trial court, treating Sam’s REBT as the legal equivalent of Wal-Mart, denied injunctive relief to Estes and entered a summary judgment for Sam’s REBT. Estes appeals.

II. Standard of Review

A summary judgment is reviewed de novo, and the judgment is given no presumption of correctness. Baldwin v. Branch, 888 So.2d 482, 484 (Ala.2004). A summary judgment is proper when there is “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56, Ala. R. Civ. P.

III. Analysis

The dispositive issue is whether Sam’s REBT qualifies as “any other party” under paragraph 11 of the agreement. Sam’s REBT argues that as a wholly owned subsidiary of Wal-Mart it is not “any other party” but is the same party as Wal-Mart. Thus, it argues, paragraph 11 does not restrict its use of Tract 1. The trial court, agreeing with Sam’s REBT, stated in its summary-judgment order:

“While paragraph 11 would appear to prevent an ‘other party’ from using [Wal-Mart’s] property as an ‘auto gasoline station,’ [Estes] has offered no viable legal or factual argument suggesting that [Sam’s REBT] is such an ‘other party or that paragraph 11 has any application to [Sam’s REBT’s] own use of its property.”

However, in its opposition to Sam’s REBT’s summary-judgment motion, Estes contended that Sam’s REBT was an “other party” to the agreement because, it argued, “Sam’s is not an original party to the [agreement], Sam’s is a freestanding corporate entity, Sam’s has not been merged into Wal-Mart or any other corporate entity, and it does not claim to be the alter-ego of Wal-Mart.”

A party is “[o]ne who takes part in a transaction.” Black’s Law Dictionary 1231 (9th ed.2009). In 1996, Sam’s REBT took part in a transaction with Wal-Mart, namely the conveyance by a warranty deed of Tract 1 from Wal-Mart to Sam’s REBT. The deed was recorded in Lauderdale County in 2003. Sam’s REBT is organized as a Delaware business trust and is registered as a foreign corporation in Alabama under its own name. If Sam’s REBT were not a separate legal entity from Wal-Mart, how could Wal-Mart convey Tract 1 to Sam’s REBT? It can hardly be argued under the law that the conveyance of Tract 1 by a warranty deed was not a transaction between two parties. No legal justification exists for one party to deed to itself property it already owns. Nor, for example, would a lien against Wal-Mart be filed against property in the name of Sam’s REBT. Sam’s REBT, though a wholly owned subsidiary of Wal-Mart, is nonetheless an “other party” to the agreement between Estes and Wal-Mart and thus also a successor or assignee of Wal-Mart under paragraph 9.

Had Wal-Mart desired to exclude affiliates or subsidiaries from the scope of the term “any other party” in the agreement, it could have bargained with Estes to add such an exclusion to the agreement and thus protected from the constraints of paragraph 11 any conveyance of Tract 1 to an affiliated entity. However, as the agreement is worded and in accord with common usage of the term “party,” Sam’s REBT is a stranger to the agreement and thus an “other party” under its terms. “Words used in a contract will be given their ordinary, plain, or natural meaning where nothing appears to show they were used in a different sense or that they have a technical meaning.” Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998). See also Strickland v. Rahaim, 549 So.2d 58, 60 (Ala.1989) (noting that “the parties [to a contract] are presumed to have intended what the terms clearly state”).

IV. Conclusion

Because Sam’s REBT is a separate legal entity from Wal-Mart and was not a party to the agreement, it qualifies as an “other party”* under paragraph 11 of the agreement. Therefore, I respectfully dissent from affirming the trial court’s summary judgment for Sam’s REBT.

MURDOCK, Justice

(dissenting).

The covenant at issue was made by Wal-Mart Stores, Inc. (“Wal-Mart”), in favor of Estes Oil Company, Inc. (“Estes”), and it provided that Wal-Mart would not convey the parcel of land at issue to any “other party” for use as a gasoline station. There is no evidence indicating that the parties to this covenant meant anything by the term “other party” except its plain and ordinary meaning.

Sam’s Real Estate Business Trust, Inc. (“Sam’s REBT”), is not Wal-Mart; it is a separate legal entity. It is not even a wholly owned subsidiary of Wal-Mart. It is a subsidiary of a subsidiary of a subsidiary of Wal-Mart. Thus, one might say that it is indirectly owned and controlled by Wal-Mart. The plain language of the covenant here, however, contains no exception for the conveyance of land to entities indirectly owned or controlled by Wal-Mart. By its plain language, it prevents the conveyance of the property to any “other party” — any separate legal entity— for use as a gasoline station.

Wal-Mart has voluntarily used the separate “corporate” form of Sam’s REBT to gain tax advantages and/or to insulate itself from potential liabilities. Having voluntarily chosen the legal advantages offered by this “corporate veil,” Wal-Mart and Sam’s REBT may not so readily ignore their separate status merely because it suits their purposes to do so in the immediate controversy. See, e.g., Joyce v. Super Fresh Food Markets, Inc., 815 F.2d 943, 946 (3d Cir.1987) (“[The defendant] chose to construct a complex corporate family structure.... This structure has afforded the [defendant corporate] family various tax and labor advantages.... While we certainly do not begrudge the [defendant corporate] family these fruits, we will not sympathetically listen as they complain of the other consequences.”); Mitchell Co. v. Campus, CIV.A.08-0342KD-C (S.D. Ala. June 17, 2009) (not reported in F.Supp.2d) (“Even where the directors and officers of one company decided to incorporate a separate company, whatever the motive, they become ‘bound by the disadvantages as well as the advantages of separate incorporation.’”) (quoting Diesel Sys., Ltd. v. Yip Shing Diesel Eng’g Co., 861 F.Supp. 179, 181 (E.D.N.Y.1994)). As one authority put it recently, courts view with “disfavor ... contradictory attempts to secure the benefits of the corporate form while at the same time seeking to avoid the disadvantages of same.” General Nutrition Corp. v. Gardere Wynne Sewell, LLP, 727 F.Supp.2d 377, 387 n. 10 (W.D.Pa.2010).

For that matter, and the most concerning aspect of our decision today, in my opinion, is the ease with which this Court ignores the separate legal status of Wal-Mart and Sam’s REBT and thereby acts in a manner inconsistent with our own decisions — decisions in which we have been careful to observe and to safeguard the separate legal status of a corporation and its shareholders. A substantial showing is necessary to justify ignoring that separate status.

“ ‘ “Piercing the corporate veil is not a power that is lightly exercised. The concept that a corporation is a legal entity existing separate and apart from its shareholders is well settled in this state. Co-Ex Plastics, Inc. v. AlaPak, Inc., 536 So.2d 37 (Ala.1988). Alorna Coat Corp. v. Behr, 408 So.2d 496 (Ala.1981). The mere fact that a party owns all or a majority of the stock of a corporation does not, of itself, destroy the separate corporate identity. Messick v. Moving, 514 So.2d 892 (Ala.1987); Forester & Jerue, Inc. v. Daniels, 409 So.2d 830 (Ala.1982).” ’ ”

Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So.2d 869, 870 (Ala.1994) (quoting Backus v. Watson, 619 So.2d 1342, 1345 (Ala.1993), quoting in turn Simmons v. Clark Equip. Credit Corp., 554 So.2d 398, 400-01 (Ala.1989)(emphasis added)). Here, there is an absence of any showing by Sam’s REBT that the corporate veil (actually, veils) between it and Wal-Mart should be pierced. In the absence of such a showing, and given the absence of any evidence of some special meaning of the term “other party” in the covenant, the Court’s decision today is at odds with long-established and important precedent respecting the ability of parties to take on separate corporate forms.

Finally, the violation of the restrictive covenant here is a matter that may be enforced against Sam’s REBT because the covenant is a recorded encumbrance and by its terms is binding on the “successors and assigns” of Wal-Mart. See also West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290, 1296 (Ala.1993) (holding that “[t]he Overlease and the Sublease granted Wal-Mart an easement in land, a property right,” entitling Wal-Mart to injunctive relief).

I therefore must respectfully dissent.

BRYAN, J., concurs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte LAMBERT LAW FIRM, LLC. (In re Shawn Brechbill v. State Farm Fire and Casualty Company).
    1121010.
    Supreme Court of Alabama.
    May 2, 2014.

      Michael C. Lambert of Lambert Law Firm, LLC, Athens, for petitioner.
    Shawn Brechbill, pro se.
    Judge Steven E. Haddock, Decatur, as respondent.
   PER CURIAM.

Lambert Law Firm, LLC (“Lambert”), petitions for a writ of mandamus directing the Morgan Circuit Court to set aside an order awarding to the respondent, Shawn Brechbill, a portion of certain funds filed with the Morgan Circuit Court clerk. We grant the petition and issue the writ.

Facts and Procedural History

Brechbill, who was represented by the law firm of Morris, Conchin & King, sued State Farm Fire and Casualty Company (“State Farm”) seeking damages for breach of contract and bad-faith failure to pay an insurance claim. The law firm filed the initial complaint, prepared various pleadings, conducted discovery, engaged experts, and filed a response to a motion for a summary judgment filed by State Farm.

Later, the law firm withdrew its representation of Brechbill. The trial court held a hearing and issued an order stating that the law firm would have a lien under Ala.Code 1975, § 34-3-61, against any settlement or judgment that became payable to Brechbill arising from his claims against State Farm. Ultimately, the law firm’s interest in the lien was assigned to Gary Conchin, a partner in the law firm.

Brechbill hired Lambert to continue the litigation. A copy of the fee agreement between the two, found in the materials before us, stated that Brechbill would pay Lambert a $5,000 retainer, would be billed for attorneys’ time at $200 an hour plus expenses, and that $30,000 must be paid before trial, $7,000 of which would be paid toward Conchin’s bill.

Brechbill ultimately received a judgment against State Farm on his breach-of-contract and bad-faith claims. At some point after the judgment was entered, Lambert withdrew from further representation of Brechbill, and the trial court entered an order granting Lambert a lien on any recovery Brechbill might be awarded. State Farm elected to appeal the verdict on the bad-faith claim, but paid to the circuit clerk one-half of the amount of the verdict in satisfaction of the verdict on the breach-of-contract claim.

While State Farm’s appeal was pending, both Conchin and Lambert moved to “condemn” the funds held by the circuit clerk. Brechbill also moved the trial court to release the funds to him. The trial court held a hearing on May 24, 2013, and subsequently issued an order on May 30, 2013, holding that the amount owed to Conchin and Lambert was “sharply disputed” and deferred ruling on the attorneys’ motions until the conclusion of State Farm’s appeal. The trial court stated that, after the appeal was final, a hearing would be set to receive testimony and evidence regarding their respective claims to the proceeds. In the meantime, the trial court awarded a portion of the funds to satisfy a claim by a court-reporting service against Brechbill and Lambert and released to Brechbill one-half of the total that had been paid by State Farm. Lambert petitions this Court for mandamus review.

Standard of Review

[1] “Mandamus is appropriate

“ ‘ “where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’ ”

Ex parte Brookwood Med. Ctr., 994 So.2d 264, 268 (Ala.2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

Analysis

In its petition, Lambert asserts that, under Ala.Code 1975, § 34-3-61, it had a lien on the funds that had been deposited with the circuit clerk. Section 34-3-61 states, in pertinent part:

“(a) Attorneys-at-law shall have a lien on all papers and money of their clients in their possession for services rendered to them, in reference thereto, and may retain such papers until the claims are satisfied, and may apply such money to the satisfaction of the claims.
“(b) Upon actions and judgments for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them.”

As has been noted by the Court of Civil Appeals: “The purpose of § 34-3-61 is ‘to protect the attorney from loss of his investment in time, effort, and learning, and the loss of funds used in serving the interest of the client.’ ” Harlow v. Sloss Indus. Corp., 813 So.2d 879, 887 (Ala.Civ.App.2001) (quoting Triplett v. Elliott, 590 So.2d 908, 910 (Ala.1991)).

“‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature.’ DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998).
“ ‘ “The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Words must be given their natural, ordinary, commonly understood meaning, and where plain language is used, the court is bound to interpret that language to mean exactly what it says.” ’
“Ex parte University of South Alabama, 761 So.2d 240, 243 (Ala.1999), quoting Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996) (citations omitted).”

Bassie v. Obstetrics & Gynecology Assocs. of Northwest Alabama, P.C., 828 So.2d 280, 288 (Ala.2002).

In its petition, Lambert contends that, because its lien and Conchin’s lien come first in priority — i.e., those liens are “superior to all liens but tax liens” — the value of their claims must be first determined before any funds can be disbursed to Brech-bill, lest the remaining funds be insufficient to cover the claimed fees. Lambert argues:

“Whatever amount is owed to Conchin and [Lambert], the plain meaning of [§ 34-3-61] is that these attorney [liens] come first in priority. To leave the amount undetermined[] with not enough proceeds left in court to satisfy the face value of said liens is wholly against the plain meaning and purpose of the statute.”

Although the trial court indicated it would set a hearing at a later date to determine the amount of the attorney liens at issue, Lambert contends that by “distributing] 50% of the existing funds ... to Breehbill” without first determining the amount of the liens, Lambert (and Conchin) were “stripped of their ability to maintain their lien.”

In its answer to Lambert’s petition, the trial court “acknowledges that it did not provide a full blown evidentiary hearing to the parties on May 24, 2013, and that it has an obligation to do so before it makes a final ruling on the claims for attorney fees and reimbursement of expenses.” The trial court explains that it was unaware of a dispute between Breehbill and his former attorneys over the fees and “had allotted too little time for a hotly contested attorney fee trial on that day.” Further, the trial court had concerns that State Farm’s appeal was still pending at that time and had further concerns as to the clarity of the Lambert fee agreement.

Given the above, the trial court clearly acted within its discretion in refusing, at the time of the hearing, to determine the amount of the liens at issue. However, given the mandatory nature of § 34-3-61, the priority of the two liens in this case, and the limited funds to which the liens attached, the trial court must first determine the amount of the fees owed to ensure that any preliminary disbursement would not divest the fund of money in which, by law, another party would have a priority in interest. Thus, to ensure the interests granted by § 34-3-61 are protected, the trial court must determine what part of the claimed fees are owed to Conchin and Lambert and thus the amount of the resulting liens before releasing any funds to Brechbill. We hold that Lambert has demonstrated a clear legal right to relief, and we therefore direct the trial court to vacate its May 30, 2013, order and to hold further proceedings consistent with this opinion.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

      . According to the trial court, this sum amounted to $161,496.64.

      . On September 27, 2013, this Court reversed the judgment on Brechbill's bad-faith claim and remanded the case. State Farm Fire & Cas. Co. v. Brechbill, 144 So.3d 248 (Ala.2013).

      . The trial court ordered that $4,568.79 be paid to the court-reporting service, which had apparently filed an action against Brechbill and Lambert seeking payment of the fee.

      . Lambert asserts in its petition that it and Conchin claimed liens in the amount of $51,304.30 and $60,690, respectively. Lambert states: "The amount remaining of roughly $80,000.00 is not enough to cover the liens that remain should they be proven valid."

      . We express no opinion as to the actual amount of fees owed or regarding Brechbill's argument that the claimed attorney fees are unreasonable.


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte GASTERIA, INC., d/b/a Lamar’s Quick Stop, and Salim K. Gillani. (In re Lamar’s Quickstop, Gasteria, Inc., and Salim K. Gillani v. Andalusia Enterprises, Inc.).
    1130740.
    Supreme Court of Alabama.
    June 6, 2014.
    John A. Daugherty and Cheryl A. Daugherty of Daugherty & Daugherty, Vestavia Hills, for petitioners.
   STUART, Justice.

WRIT DENIED. NO OPINION.

BOLIN, PARKER, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from this Court’s decision to deny the petition for the writ of certiorari because I believe the trial court and the Court of Civil Appeals overlooked a key provision regarding the calculation of late charges in the invoices at issue in this case. I believe we should grant the petition for the writ of certiorari and review the Court of Civil Appeals’ decision.

7. Facts and Procedural History

In December 2005, Salim K. Gillani, the owner of Gasteria, Inc., d/b/a Lamar’s Quick Stop, a gas station and convenience store in Hueytown (“Quick Stop”), entered into an oral open-account agreement with Andalusia Enterprises, Inc. (“AEI”), in which AEI agreed to supply petroleum products to Quick Stop. AEI issued an invoice to Quick Stop after each delivery, but the parties did not execute a written contract. AEI’s invoices indicated that net payment was due in 10 days and contained the following provision regarding the interest charged in late payments:

“Customer agrees to pay a late charge on due balance of 1.5% per month, or the maximum rate allowed in customer’s state of residence, whichever is less. Customer agrees to pay all expenses incurred in collection of the indebtedness as a result of default of payment including court costs and reasonable attorney’s fees.”

AEI supplied approximately $2.5 million in petroleum products to Quick Stop from December 2005 until July 2010, when Quick Stop made its last purchase. Quick Stop paid most of AEI’s invoices, but’ generally not within the required 10-day period. As a result, many of Quick Stop’s invoices incurred late charges, which accumulated in nearly every month from December 2005 to July 2010.

In December 2011, AEI Sued Quick Stop for unpaid principal, interest, and attorney fees on the open account. AEI claimed damages of $15,198, a sum largely attributable to unpaid late charges, and $3,040 in attorney fees. After a bench trial, the trial court entered a judgment in favor of AEI and awarded it the sums claimed plus an additional $638 in interest, for a total award of $18,876. Quick Stop subsequently filed a postjudgment motion to alter, amend, or vacate the trial court’s judgment, arguing, among other things, that the late charges could not exceed the legal rate of prejudgment interest and that attorney fees were not allowed on an open account.

The trial court found as follows:

“[T]his case [is] analogous to Staples v. Jenkins Builders, Inc., 447 So.2d 779 (Ala.Civ.App.1984). In Staples, the invoices contained the statement: ‘Terms: Net 30 days. A service charge of 1 ½% will be charged on all unpaid balances not paid by the 10th day of the following month. 1 ½% = 18% per year.’ Id. at 781. In the instant action, the invoices contain the terms ‘CREDIT/TERMS NET 10 DAYS’ and the following language at the bottom of the invoice, ‘CUSTOMER AGREES TO PAY A LATE CHARGE ON DUE BALANCE OF 1.5% PER MONTH, OR THE MAXIMUM RATE ALLOWED IN CUSTOMER’S STATE OF RESIDENCE, WHICHEVER IS LESS.’
“The law authorizes the imposition of interest on a delinquent open account. Staples, 447 So.2d at 782 .... In this case, the invoices clearly set out the late charge on the delinquent open account, as 'did the invoices in Staples. See id. Furthermore, as in Staples, the ‘defendant had notice that interest would be charged on the unpaid balance, he had notice of the rate of interest, and he had notice of the period over which interest would be assessed.’ Id. Were there no invoices sent, or were the invoices lacking of the terms of the late charge, the Court would be inclined to agree with Defense counsel that 6% per annum is the maximum interest that may be charged on a delinquent open account. However, given the similarity between this matter and Staples, the Court hereby finds the order of September 18, 2012, to be correct as it relates to the principal amount owed and the interest accrued. Accordingly, [Quick Stop’s] Motion to Alter, Amend or Vacate Judgment as it relates to the principal amount and interest awarded is hereby DENIED.”

(Capitalization in original.) However, the trial court granted Quick Stop’s motion in part and amended its judgment to remove the attorney-fees award, rendering a final judgment in favor of AEI for $15,836. Quick Stop appealed that judgment to the Court of Civil Appeals, which affirmed the trial court’s judgment without an opinion. Lamar’s Quickstop v. Andalusia Enters., Inc. (No. 2120363, March 21, 2014), — So.3d — (Ala.Civ.App.2014) (table). Quick Stop now seeks certiorari review of the Court of Civil Appeals’ decision.

II. Discussion

Quick Stop maintains that the trial court erred in calculating the amount of interest it owed AEI on the delinquent payments. The trial court found that Staples v. Jenkins Builders, Inc., 447 So.2d 779 (Ala.Civ.App.1984), controlled because AEI’s invoices provided Quick Stop with notice that interest would be charged and notice of the rate of that interest. Although these facts are true, the terms of the invoices in Staples differ from AEI’s invoices. The invoices in Staples provided for a service charge of 1 ½% per month, or 18% per annum. Staples, 447 So.2d at 781. In Staples, the terms of the invoice on the open account controlled the rate of interest. 447 So.2d at 782 (“[T]he defendant was informed by the August 1, 1981 statement ... that if he did not pay [the balance due] by the tenth of the following month a one and one-half percent service charge would be assessed on the unpaid balance.... [Defendant ... had notice of the rate of interest....”). In contrast, AEI’s invoices provided that the late charges on Quick Stop’s balance due would be 1.5% per month (18% per annum), or Alabama’s maximum interest rate, which is 6% per annum, “WHICHEVER IS LESS.” See § 8-8-1, Ala.Code 1975 (maximum interest rate “except by written contract” is 6% per annum).

The trial court concluded correctly that Quick Stop had notice from AEI’s invoices that interest would be charged and that the invoices generally controlled the rate of interest. However, the trial court failed to apply the “whichever is less” term from AEI’s invoices and imposed AEI’s customary rate of 18% per annum in calculating the interest owed on Quick Stop’s open account. If Staples is similar to this case, the specific terms of AEI’s invoices should control the rate of interest.

Although the ore tenus standard of review extends to a trial court’s damages award, Edwards v. Valentine, 926 So.2d 315, 325 (Ala.2005), the trial court’s judgment based on findings of fact in support of AEI’s damages award is due to be reversed if those findings are “clearly and palpably erroneous.” Robinson v. Morse, 352 So.2d 1355, 1357 (Ala.1977). I believe the Court of Civil Appeals’ affirmance of the trial court’s clearly erroneous calculation of the rate of interest in AEI’s damages award provides us with “special and important reasons for the issuance of the writ,” Rule 39(a), Ala. R.App. P.

III. Conclusion

I therefore dissent from the Court’s decision to deny Quick Stop’s petition for the writ of certiorari.


text:
    Ex parte Sherman Fitzgerald Tate. (In re Sherman Fitzgerald TATE v. STATE of Alabama).
    1130685.
    Supreme Court of Alabama.
    June 6, 2014.
    Michael Hickman, Mobile, for petitioner.
   STUART, Justice.

WRIT DENIED. NO OPINION.

BOLIN, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and PARKER and MURDOCK, JJ., dissent.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. The defendant, Sherman Fitzgerald Tate, was accused of engaging in deviate sexual intercourse with two 15-year-old students while he was employed as a mentor with the Youth Advocate Program at Pointe Academy in Mobile. I believe Tate should have been permitted to offer in his defense evidence of the existence of the two victims’ “romantic relationship” with each other, evidence I believe could be relevant to the victims’ alleged bias against Tate or their collusion but that is not necessarily barred by Rule 412, Ala. R. Evid., the rape-shield rule.

According to the facts before this Court, between December 2009 and April 2010, when the events in this case allegedly took place, Tate knew that the two victims, K.R. and T.E., were bisexual and apparently conveyed this information to the mother of one of the victims. Tate had also commented that the victims were “talking together,” which, we are told, is “a euphemism [meaning] that they were involved in a relationship.” Trial counsel stated that this homosexual relationship “would be in the middle of the time frame when they are claiming he was doing something to them.” Trial counsel also presented KR.’s witness interview in which “she stated that she had had a dating relationship with T.E., the other state’s witness, ... in the timeframe while she was a student at Pointe Academy.” Trial counsel stated several times that he did not intend to cross-examine the victims regarding their possible sexual activities unrelated to the alleged instances with Tate.

Based on trial counsel’s proffer, the trial court found that “going beyond to know when each other, [sic] being friends is more prejudicial than probative.... I think the reference is still more prejudicial than probative.” Petition at 6-7. In its unpublished memorandum, the Court of Criminal Appeals held:

“Tate’s theory that T.E. and K.R. were previously engaged in a sexual relationship with one another, giving them both motive and the opportunity to concoct the false sodomy allegations against him, was, at best, speculative and would have confused the jury by diverting its attention to issues that were not germane to this trial.”

The relevant version of Rule 412 renders inadmissible “evidence relating to the past sexual behavior of the complaining witness.” Rule 412(b), Ala. R. Evid. The rule bars ‘“[e]vidence of particular acts of un-chastity on the part of the victim with a third person.’ McGilberry v. State, 516 So.2d 907, 914 (Ala.Crim.App.1987) (emphasis added) (construing § 12-21-23, Ala. Code 1975 (the rape-shield statute), superseded by Rule 412 effective January 1, 1996). Tate’s proposed cross-examination was confined to the existence of the two victims’ romantic relationship with one another; it was not exploring the specifics of their past sexual behavior. In addition, Tate’s proposed cross-examination did not focus on the victims’ sexual behaviors with third persons, but with one another. Rule 412 does not bar cross-examination regarding a victim’s romantic relationship or even sexual behavior with another complaining victim. Cross-examination regarding the victims’ romantic relationship with one another does not become inadmissible just because the jury might infer from that testimony that the victims had engaged in homosexual acts.

I believe Tate has presented this Court with a cognizable conflict between the decision of the Court of Criminal Appeals and the decision in Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). I believe that ‘“[a] reasonable jury might have received a significantly different impression of [the witness’] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination.’ ” Olden, 488 U.S. at 232 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The trial court’s finding that evidence indicating that the victims were “friends” was more prejudicial than probative cannot “justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the victims’] testimony.” Id.

Tate’s trial counsel made a sufficient proffer that Tate knew that the victims were involved in a romantic relationship with one another at the time they accused Tate of sodomy. Tate’s knowledge of the victims’ romantic relationship, coupled with the fact that Tate informed the mother of one of the victims of that relation.ship, would make the proposed cross-examination relevant to show that the victims had possibly fabricated the charges against Tate.1 believe that we should resolve this material question of first impression, and I therefore dissent from denying the writ.

      . Sister states have likewise made this distinction in applying their rape-shield rules. See, e.g., Miskelley v. State, 480 So.2d 1104 (Miss.1985) (trial court erred in restricting cross-examination of witness in murder trial as to her dating relationship with victim and sexual relationship with defendant, where prosecution’s theory was that defendant killed victim because of his jealousy of victim’s relationship with witness; such cross-examination was relevant to witness’s interest, bias, motive, hostility, and credibility); Commonwealth v. Joyce, 382 Mass. 222, 227, 415 N.E.2d 181, 185 (1981) ("We do not believe that the prohibition in the rape-shield statute sweeps so broadly as to render inadmissible evidence of specific instances of a complainant's sexual conduct in situations when that evidence is relevant to show the complainant’s bias.”); Richardson v. State, 276 Ga. 639, 640, 581 S.E.2d 528, 529 (2003) ("Evidence merely that the victim has or had a romantic relationship with another man does not reflect on her character for sexual behavior. Therefore, so long as Richardson confined his questioning to the non-sexual nature of the victim's former relationships, the statute would not be a basis for curtailing his cross-examination of her.’’); People v. Golden, 140 P.3d 1, 5-6 (Colo.Ct.App.2005) (“While we recognize that a ‘committed romantic relationship’ between adults may be generally understood to have a sexual component, the initial questions did not, standing alone, inquire into that component or any sexual conduct.... Here, the [rape-shield] statute would not have been violated had defendant been allowed to inquire into the victim's prior inconsistent statements acknowledging a committed romantic relationship. The victim would not have been subjected to a fishing expedition into her past sexual conduct. Rather, the inquiry would have called into question her credibility and her possible motive in telling her roommates that she had been sexually assaulted.”); and Kaplan v. State, 451 So.2d 1386, 1387 (Fla.Dist.Ct.App.1984) ("We recognize, however, that the defendant’s right to full and fair cross-examination, guaranteed by the Sixth Amendment, may limit the [rape-shield] statute's application when evidence of the victim’s prior sexual conduct is relevant to show bias or motive to lie.’’).


author: PARKER, Justice.

text:
    STATE of Alabama et al. v. ESTATE OF Frances Ann YARBROUGH, deceased, et al.
    1130114.
    Supreme Court of Alabama.
    June 6, 2014.

      Luther Strange, atty. gen.; John C. Nei-man, Jr. (withdrew 01/24/2014), Andrew L. Brasher, and Megan A. Kirkpatrick, deputy attys. gen.; and Richard H. Cater, chief legal counsel, and Jerry Carpenter, deputy atty. gen., Department of Finance, for appellants.
    Brandi C. Williams of Church Harmon Brogdon & Williams, PC, Pell City, for appellee Estate of Frances Ann Yar-brough.
   PARKER, Justice.

The State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama (hereinafter collectively referred to as “the State”), nonparties to the underlying action, appeal from the St. Clair Circuit Court’s order denying the State’s motion to intervene as of right.

Facts and Procedural History

The circuit court set forth the relevant facts and procedural history in its order of October 15, 2013, as follows:

“This matter came before the Court on July 11, 2013, for a hearing on the Motion to Intervene filed by the State of Alabama, the Alabama Department of Finance, the Alabama Comptroller (the ‘State’) and the State’s Rule 60(b)[, Ala. R. Civ. P.,] Motion for Relief from Judgment or Order (‘Rule 60(b) Motion’), both of which motions were filed on June 25, 2013.
“Upon review and consideration of the State’s Motion to Intervene, the State’s Rule 60(b) Motion, the remaining pleadings in this matter, arguments by counsel of the State and the Estate [of Frances Ann Yarbrough, deceased (‘the Estate’) ], and applicable law, this Court finds as follows:
“1. This estate matter has been pending since 2001. In March 2012, this Court found that the decedent, Mrs. Frances Ann Yarbrough, died intestate with no heirs that are in the line of descendant distribution under the laws of the State of Alabama; thus, in accordance with § 43-8-44, Ala.Code 1975, her assets escheated to the State of Alabama.[]
“2. By order dated March 19, 2012, this Court ordered the Estate to pay certain expenses of the Estate, and then to pay the balance of the Estate’s funds to the State of Alabama. In that same order, this Court ordered the State of Alabama to pay the escheated funds to the St. Clair County’s Circuit Clerk’s office to be used by the Clerk ‘to rehire some of the employees lost to proration.’
“3. On May 7, 2012, a check in the amount of $247,850.17 was mailed to the State of Alabama with a copy of this Court’s March 19th order.
“4. Following receipt of the Estate’s check and this Court’s order, on or about May 15, 2012, the State of Alabama, through Assistant Attorney General J. Matt Bledsoe, contacted the Estate’s counsel, Brandi Williams, to receive assistance from the Estate in seeking a modification of this Court’s March 19th order.
“5. The State, through its counsel Mr. Bledsoe, stated that the Estate’s escheated funds must be used or applied in furtherance of education in accordance with the Alabama Constitution.[] Notably, the State, through its counsel Mr. Bledsoe, declared that it had no objection to disbursing the Estate’s es-cheated assets to the Pell City Board of Education and the St. Clair County Board of Education.
“6. Based on that representation, the Estate moved this Court to Alter, Amend, or Vacate its March 19th order to direct the State of Alabama to pay the Estate’s escheated assets to the Pell City Board of Education and the St. Clair County Board of Education. In that motion, the Estate informed the Court that ‘the Attorney General’s Office ha[d] no objection to the balance of the Estate of Frances Ann Yarbrough being paid by the State of Alabama to the St. Clair County Board of Education and the Pell City Board of Education.’
“7. This Court granted the Estate’s motion and entered an amended order on May 22, 2012, directing the State of Alabama to pay the Estate’s escheated assets to the Pell City Board of Education and the St. Clair County Board of Education.
“8. By letter dated June 7, 2012, the State, through its counsel Deputy Attorney General Jerry Carpenter, objected to this Court’s May 22nd order. This Court treated Mr. Carpenter’s letter as a Motion to Alter, Amend, or Vacate, filed the letter with the circuit clerk on June 13, 2012, and set the matter for a hearing on July 12, 2012.
“9. Because the State was not a party to this matter, the State apparently did not receive direct notice of the July 12th hearing. The Estate’s counsel, Ms. Williams, however, provided the State notice of the hearing by e-mail to Mr. Bledsoe.
“10. The State did not appear at the July 12th hearing, and this Court denied the relief requested by the State through its June 7th letter by an order dated July 17, 2012.
“11. Thereafter, on August 15, 2012, the State filed a formal Motion for Reconsideration of this Court’s denial of the relief requested in the State’s June 7th letter.
“12. This Court denied the State’s Motion for Reconsideration on August 16, 2012.
“13. On August 28, 2012, the State appealed this Court’s May 22nd order to the Alabama Supreme Court.”

On June 20, 2013, this Court dismissed the State’s appeal (case no. 1111546) without prejudice. In addition to dismissing without prejudice the State’s appeal, this Court’s order stated:

“IT IS FURTHER ORDERED that the appellants, the State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama, may intervene in the underlying action for purposes of taking an appeal from the final judgment in this cause; and that the appellants may take a timely appeal after the St. Clair Circuit Court issues an order granting the appellants’ motion to intervene in the underlying action. See Rule 4(a), Ala. R.App. P.”

(Capitalization in original.)

The circuit court’s October 15, 2013, order sets forth the remaining pertinent facts and procedural history, as follows:

“15. On June 25, 2013, the State moved to intervene as a matter of right in this action pursuant to Rule 24(a)(2) of the Alabama Rules of Civil Procedure, so that the State could seek relief from this Court’s May 22nd order pursuant to Rule 60(b) of the Alabama Rules of Civil Procedure.
“16. In its motion, the State asserts that ‘Rule 24(a)(2), Ala. R. of Civ. P., provides for intervention of right “when the applicant claims an interest relating to the property or transaction which is the subject of the action” and the applicant’s ability to protect its interest may be impaired or impeded, unless the applicant’s interest is adequately represented by an existing party.’ Motion at [para.] 5.”

The circuit court then denied the State’s motion to intervene, as follows:

“17. While the State accurately quotes a portion of Rule 24(a)(2), Ala. R. Civ. P., the State fails to quote the most important provision of that Rule as it applies to this case. Both Ala. R. Civ. P. Rule 24(a) and Ala. R. Civ. P. Rule 24(b) require ‘timely application’ to the trial court for requests for intervention. The State makes no mention of this requirement in its Motion to Intervene and does not attempt to argue that its Motion is ‘timely’ under Rule 24(a)(2), Ala. R. Civ. P.
“18. Since Ala. R. Civ. P. 24 ‘is silent concerning what constitutes a “timely application,” it has long been held that the determination of timeliness is a matter committed to the sound discretion of the trial court.’ Randolph County v. Thompson, 502 So.2d 357, 364 (Ala.1987).
“19. In this matter, it is undisputed that the State had notice of the issues for which it seeks intervention at least as early as May 2012. Despite having this notice, the State chose not to intervene in this matter, but rather to seek review of this Court’s order as a non-party to this case. Once that review was unsuccessful, the State sought intervention as a matter of right in June 2013. Under these facts, to hold that the State’s Motion to Intervene is a ‘timely application’ under Rule 24(a)(2), Ala. R. Civ. P., would require an absurd construction of the word ‘timely.’ See Root v. City of Mobile, 592 So.2d 1051, 1053 (Ala.1992) (trial court did not abuse its discretion in denying a motion to intervene filed more than 10 months after the underlying action was filed).
“20. The State of Alabama and the Alabama Attorney General’s Office are not exempt from the rules requiring ‘timely application for intervention,’ and the State must be held responsible for its failure to comply with Rule 24, Ala. R. Civ. P. See American Benefit Life Ins. Co. v. Ussery, 373 So.2d 824, 828 (Ala.1979) (holding that the Attorney General’s petition for intervention ‘came too late’).
“21. The State’s actions in this matter, including its failure to ‘timely’ apply for intervention, have resulted in wasted judicial resources and unnecessary delay in the final resolution of this case. To allow the State to intervene now, more than a year after the State’s first knowledge of the matters it seeks to challenge through intervention, would be prejudicial and would create additional undue delay.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court as follows:
“A. For the foregoing reasons, the State’s Motion to Intervene is DENIED.
“B. Because the State’s Motion to Intervene is DENIED, this Court need not consider the merits of the State’s Rule 60(b) Motion. The State’s Rule 60(b)'motion is also DENIED.”

(Capitalization in original.) The State appealed.

Standard of Review

“The standard of review applicable in cases involving a denial of a motion to intervene as of right is whether the trial court has acted outside its discretion. See City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997).” Black Warrior Riverkeeper, Inc. v. East Walker Cnty. Sewer Auth., 979 So.2d 69, 72 (Ala.Civ.App.2007). Further, this Court reviews questions of law de novo. National Ins. Ass’n v. Sockwell, 829 So.2d 111 (Ala.2002); Moss v. Williams, 822 So.2d 392 (Ala.2001); and Reed v. Board of Trs. of Alabama State Univ., 778 So.2d 791 (Ala.2000).

Discussion

Initially, we note that the State’s appeal is properly before this Court:

“ ‘[A] denial of a motion to intervene is always an appealable order.’ Farmers Ins. Exch. v. Raine, 905 So.2d 832, 833 (Ala.Civ.App.2004) (citing Kids’ Klub II, Inc. v. State Dep’t of Human Res., 763 So.2d 259, 260 (Ala.Civ.App.2000); Alabama Fed. Sav. & Loan Ass’n v. Howard, 534 So.2d 609 (Ala.1988)).”

Jim Parker Bldg. Co. v. G & S Glass & Supply Co., 69 So.3d 124, 130 (Ala.2011).

The State argues that the circuit court violated this Court’s June 20, 2013, order allowing the State to intervene in the underlying action; the State argues that the circuit court was without discretion to deny the State’s motion to intervene. The estate of Frances Ann Yar-brough, deceased (“the estate”), argues that this Court’s June 20, 2013, order was not a mandate to the circuit court to grant the State’s motion to intervene, should the State file such a motion, but required the circuit court only to consider such a motion if filed by the State. The State’s interpretation of this Court’s June 20, 2013, order is correct. See Ex parte Stewart, 74 So.3d 944, 948 (Ala.2011) (“Section 12-1-7(3), Ala.Code 1975, provides that every court has the power ‘to compel obedience to its judgments, orders and process and to orders of'a judge out of court, in an action or proceeding therein.’ ”).

As set forth above, this Court’s June 20, 2013, order stated, in pertinent part:

“It is ... ordered that the appellants, the State of Alabama, the Alabama Department of Finance, and the Comptroller of the State of Alabama, may intervene in the underlying action for purposes of taking an appeal from the final judgment in this cause; and that the appellants may take a timely appeal after the St. Clair Circuit Court issues an order granting the appellants’ motion to intervene in the underlying action.”

(Emphasis added.)

By stating that the State “may intervene in the underlying action,” this Court’s order left no discretion in the circuit court as to whether to allow the State to intervene, but required the circuit court to grant the State’s motion to intervene, if the State filed such a motion. This Court’s order did not state that the State may file' a motion to intervene, but affirmatively concluded that the State “may intervene.” The use of the word “may” in this Court’s order pertained to the State’s decision to intervene; it did not give the circuit court the discretion to deny a motion to intervene filed by the State. By denying the State’s motion, the circuit court failed to comply with this Court’s June 20, 2013, order; thus, the circuit court’s order denying the State’s motion to intervene is reversed.

The State has requested that this Court, if it determines that the circuit court’s denial of the State’s motion to intervene was in error, determine the merits of the underlying case. In support of its request, the State cites Randolph County v. Thompson, 502 So.2d 357 (Ala.1987).

In Randolph County, the underlying action appealed from involved the then governor’s appointment of Charlie Will Thompson to a position as a supernumerary sheriff of Randolph County (“the County”). The County was notified of Thompson’s appointment, and the County filed a motion to intervene as of right pursuant to Rule 24(a), Ala. R. Civ. P., in an action Thompson had earlier filed against then Governor George Wallace, because, the County alleged, a supernumerary sheriffs • salary is paid from County funds. The circuit court denied the County’s motion to intervene, and the County appealed. This Court determined that the circuit court’s order denying the County’s motion to intervene was in error. This Court then went on to address the merits of the underlying action based on the following reasoning:

“Having determined that the County could properly intervene as of right in Thompson v. Wallace in order to prosecute the appeal that was earlier dismissed on motion of the governor’s office, we can see no just reason to delay making a determination on the underlying merits of this case. Both parties have submitted briefs in which they discussed these underlying issues. Further, at oral argument of this case, counsel for Thompson insisted that ‘the merits’ are now before this Court. Rule 1, A[la]. R.App. P., declares that these rules ‘shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.’ Similarly, Rule 1, A[la]. R. Civ. P., declares that ‘these rules shall be construed to secure the just, speedy and inexpensive determination of every action.’ In accordance with these policies, we now address the merits of the County’s appeal.”

502 So.2d at 366.

In the present case, we have determined that the State had the right to intervene in the underlying action and that the circuit court erred' in denying its motion to intervene. Further, the estate has presented no argument against or objection to this Court’s considering the merits of the underlying case. Indeed, the estate notes the possibility that this Court may consider the merits of the underlying action and presents arguments concerning the merits in its brief on appeal, as will be discussed below. As was the case in Randolph County, we have concluded that the State had the right to intervene in the underlying action; the estate has no objections to consideration of the merits of the underlying action; and the merits of the underlying action have been briefed by both sides in their briefs presently before this Court. Thus, to “assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits,” we will consider the merits of the underlying action. Rule 1, Ala. RApp. P.

As set forth above, on March 19, 2012, the circuit court entered an order determining that Mrs. Yarbrough had “died intestate with no heirs that are in the line of descendant distribution under the laws of the State of Alabama” and that the assets of the estate “must escheat to the State of Alabama.” In that same order, the circuit court further stated:

“Since this money originated in St. Clair County and further since proration has substantially decreased the number of employees in the circuit clerk’s office, hampering the efficiency of that office, the comptroller is directed to pay these funds to the circuit clerk of St. Clair [C]ounty to be used solely to rehire some of the employees lost to pro-ration.”

Also as set forth above, on May 7, 2012, a check in the amount of $247,850.17 was mailed to the State treasurer with a copy of the circuit court’s March 19 order. The State has maintained possession of the es-cheated funds of the estate since that date.

On May 22, 2012, the circuit court, upon motion of trial counsel for the personal representative of the estate, entered the following order, amending the March 19 order:

“Upon consideration of the Motion to Amend, Alter, or Vacate filed by ... [the] Personal Representative of the Estate ..., it is ORDERED, ADJUDGED and DECREED as follows:
“1. That the State of Alabama shall pay the sum of $247,750.17[] to the St. Clair County Board of Education and the Pell City Board of Education.
“2. As determined by each system’s school population, the State of Alabama shall disburse to the St. Clair County Board of Education the sum of $165,250.17.
“3. The State of Alabama shall also disburse the sum of $82,500.00 to the Pell City Board of Education.
“4. That each Board of Education shall spend the funds however it sees fit.”

(Capitalization in original.)

On appeal, the State argues that the circuit court’s May 22, 2012, order is unconstitutional in that it violates the separation-of-powers doctrine; we agree. The separation-of-powers doctrine is expressly set forth in the Alabama Constitution: “In Alabama, separation of powers is not merely an implicit ‘doctrine’ but rather an express command; a command stated with a forcefulness rivaled by few, if any, similar provisions in constitutions of other sovereigns.” Ex parte James, 836 So.2d 813, 815 (Ala.2002). Article III, § 42, Ala. Const.1901, states:

“The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Article III, § 43, Ala. Const.1901, states:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

(Emphasis added.) More specifically, as it pertains to the present case, Art. Ill, § 43.01, Ala. Const. 1901 (Off.Recomp.), states, in pertinent part: “No order of a state court, which requires disbursement of state funds, shall be binding on the state or any state official until the order has been approved by a simple majority of both houses of the Legislature.” See Ex parte James, 836 So.2d at 815 (stating that § 43.01 nullifies “any ‘order of a state court, which requires disbursement of state funds, ... until the order has been approved by a simple majority of both houses of the Legislature’”). Further, Art. IV, § 72, Ala. Const.1901, states, in pertinent part: “No money shall be paid out of the treasury except upon appropriations made by law ...,” i.e., approved by the Legislature. Ex parte James, 713 So.2d 869, 903 (Ala.1997) (Hooper, C.J., dissenting)(“Article III, § 72, Ala. Const. 1901, provides that no money shall be paid out of the treasury except upon appropriation, made by law, i.e., passed by the Legislature.”). See also 63C Am.Jur.2d Public Funds § 34 (1997) (“The power to appropriate public funds for specific purposes and to reduce appropriations is solely a legislative power.” (quoted with approval in McInnish v. Riley, 925 So.2d 174, 179 (Ala.2005))).

In the present case, in accordance with Alabama law, the circuit court escheated the funds of the estate pursuant to § 43-8-44, which were paid to the State treasurer pursuant to § 43-6-7, Ala.Code 1975. Article XIV, § 258, Ala. Const.1901, requires that “all estates of deceased persons who die without leaving a will or heir, shall be used or applied to the furtherance of education.” Additionally, Art. XIV, § 260, Ala. Const.1901, states, in pertinent part:

“The income arising from the sixteenth section trust fund, the surplus revenue fund, until it is called for by the United States government, and the funds enumerated in sections 257 and 258 of this Constitution, together with a special annual tax of thirty cents on each one hundred dollars of taxable property in this state, which the legislature shall levy, shall be applied to the support and furtherance of education, and it shall be the duty of the legislature to increase the educational fund from time to time as the necessity therefor and the condition of the treasury and the resources of the state may justify; provided, that nothing herein contained shall be so construed as to authorize the legislature to levy in any one year a greater rate of state taxation for all purposes, including schools, than sixty-five cents on each one hundred dollars’ worth of taxable property; and provided further, that nothing herein contained shall prevent the legislature from first providing for the payment of the bonded indebtedness of the state and interest thereon out of all the revenue of the state.”

(Emphasis added.) Therefore, pursuant to the Alabama Constitution, there is no doubt that the escheated funds of the estate must be applied for the furtherance of education. However, the estate has not directed this Court’s attention to any authority indicating that the circuit court had the authority to order the State to appropriate the escheated funds to a specific State agency. As set forth above, such power rests solely with the Legislature.

This is not the first time a branch of government other than the Legislature has attempted to usurp the legislative power to appropriate State funds. In Wallace v. Baker, 336 So.2d 156 (Ala.1976), the question before this Court was: “Can the Governor, by executive order, appropriate public funds for education when the Legislature adjourns without passing an appropriation bill?” 336 So.2d at 156. Based on the separation-of-powers doctrine, this Court concluded that the governor does not have the authority to appropriate State funds, stating:

“Section 43 of our State Constitution prohibits the Executive branch from exercising either legislative or judicial powers. Section 72 of our Constitution specifically prohibits the payment out of the treasury of money ‘except upon appropriations made by law.’ Amendment 111, which states that it is the policy of the State ‘to foster and promote the education of its citizens,’ does not grant additional powers to the Executive. The power to appropriate is still legislative.”

Id. Just as this Court determined in Wallace that the governor cannot usurp the legislative authority to appropriate State funds by means of an executive order, neither can the circuit court usurp the legislative authority to appropriate State funds by means of an order or a judgment.

The estate further argues that, because J. Matt Bledsoe, an assistant attorney general, approved the plan of the estate’s trial counsel to ask the circuit court to amend its judgment to order the State to appropriate the escheated funds to the St. Clair County and Pell City Boards of Education, the State'waived application of the separation-of-powers doctrine to this case. The estate has not cited any authority in support of its argument. Based on its failure to cite any applicable law, the estate’s argument in this regard does not comply with Rule 28(a)(10), Ala. R.App. P., and we need not consider its argument. See Harris v. Owens, 105 So.3d 430, 436-37 (Ala.2012).

However, we note that the estate’s argument is not well taken. The estate essentially argues that the executive branch can waive the separation-of-powers doctrine on behalf of the legislative branch so that the judicial branch can order the legislative branch how to appropriate funds. First, we note that at the time Bledsoe advised the estate’s trial counsel to file a postjudgment motion requesting that the circuit court enter an order appropriating State funds to the St. Clair County and Pell City Boards of Education, the State had not yet moved to intervene in the action; we fail to see how a nonparty can waive a constitutional doctrine.

Moreover, the separation-of-powers doctrine is not an affirmative defense that can be waived, but a command expressly stated in the Alabama Constitution. See Ex parte James, supra. The circuit court lacked the authority to instruct the Legislature how to appropriate the escheated funds of the estate. The executive branch cannot waive the legislative branch’s constitutional authority and allow the judicial branch to exercise that authority. Our constitution clearly defines the roles of each branch of government and expressly forbids each branch from exercising another branch’s constitutional authority. The estate’s argument is both unsupported and unpersuasive.

The circuit court’s orders violate the separation-of-powers doctrine in that the circuit court sought in both orders to exercise a legislative power; the circuit court had no authority to appropriate State funds to a specific State agency. See Wallace, supra. As a result, we vacate the circuit court’s May 22, 2012, order and that portion of the circuit court’s March 19, 2012, order purporting to direct that the funds be paid to the circuit clerk of St. Clair County. The funds of the estate were properly escheated in the March 19, 2012, order, and that action of the circuit court stands.

Conclusion

Because the circuit court failed to follow this Court’s June 20, 2013, order, we reverse the circuit court’s October 15, 2013, order denying the State’s motion to intervene. Further, having considered the merits of the underlying action, we vacate the circuit court’s May 22, 2012, order purporting to order the disbursement of the escheated funds because the circuit court was without authority to do so based on the separation-of-powers doctrine. In its March 19, 2012, order, the circuit court properly ordered the funds of the estate within its authority escheated, and, insofar as that order does so, it is affirmed. However, the circuit court exceeded its authority in attempting to appropriate the escheated funds. All issues having been decided on both the motion to intervene and the underlying action, a judgment is rendered for the State.

ORDER OF OCTOBER 15, 2013, REVERSED; ORDER OF MAY 22, 2012, VACATED; ORDER OF MARCH 19, 2012, AFFIRMED IN PART AND VACATED IN PART; AND JUDGMENT RENDERED FOR THE STATE.

STUART, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and BOLIN and SHAW, JJ., concur in the result.

      . Section 43-8-44, Ala.Code 1975, states:
      "If there is no taker under the provisions of this article, the intestate estate passes to the state of Alabama.”

      . Article XIV, § 258, Ala. Const.1901, states, in pertinent part: “[A]ll estates of deceased persons who die without leaving a will or heir[ ] shall be used or applied to the furtherance of education.”

      . The circuit court also entered a judgment awarding attorney fees to trial counsel for the estate of Frances Ann Yarbrough; the circuit court later vacated that judgment ex mero motu.

      . We note that, in its order denying the State’s motion to intervene, the circuit court states that $247,5 50.17 was submitted to the State as the escheated funds. Here, the circuit court is purporting to order the State to distribute $247,750.17; the parties do not explain this discrepancy.

      . See Ex parte Hale Cnty. Bd. of Educ., 14 So.3d 844 (Ala.2009) (recognizing that county boards of education are agencies of the State); and Ex parte Phenix City Bd. of Educ., 67 So.3d 56 (Ala.2011)(recognizing that city boards of education are agencies of the State).

      . We note that the estate also argues that it should be awarded attorney fees out of the escheated funds based on Bledsoe’s actions. However, the estate has cited no authority supporting this argument; thus, we need not consider it. See Rule 28(a)(10); see also Harris, supra.


author: THOMAS, Judge.

text:
    Autumn Holt IRIONS v. Matthew HOLT. Matthew Holt v. Autumn Holt Irions.
    2130002.
    Court of Civil Appeals of Alabama.
    June 6, 2014.

      Margaret Y. Brown, Auburn, for appellant/cross-appellee Autumn Holt Irions.
    Eric B. Funderburk, Phenix City, for appellee/cross-appellant Matthew Holt.
   THOMAS, Judge.

Autumn Holt Irions (“the mother”) appeals from a judgment of the Lee Circuit Court (“the trial court”) in favor of Matthew Holt (“the father”). This is the second time the parties have been before this court. See Holt v. Holt (No. 2060172, July 2, 2007), 13 So.3d 454 (Ala.Civ.App.2007) (table). The parties were divorced in July 2006; there were two children born of the marriage. At the time of the trial in the present case the parties’ daughter and son (hereinafter referred to collectively as “the children”) were ages 13 and 9, respectively. The divorce judgment awarded the parties joint legal custody of the children, awarded the father sole physical custody, awarded the mother standard visitation, and ordered the mother to pay child support. In November 2006, the mother appealed the divorce judgment to this court; that appeal was assigned case number 2060172. This court affirmed the divorce judgment, without an opinion. The certificate of judgment was issued on August 10, 2007.

The record indicates that a judgment modifying the divorce judgment (“the modified judgment”) was entered in August 2012 and that the modified judgment awarded the mother additional visitation and increased the amount of her child-support obligation from $351.90 per month to $500 per month. Although the modified judgment has not been included in the record, it appears that the father was ordered in that judgment to maintain health insurance for the children.

This action was initiated on December 13, 2012, when the mother filed a petition for contempt and for further modification of the divorce judgment. In the petition, the mother alleged that the father had allowed the children’s health-insurance coverage to lapse and requested that, because she had obtained health insurance for the children, her monthly child-support obligation be recalculated. The mother filed an amended petition on January 16, 2013, in which she stated that the father had notified her via electronic mail that he had entered active military service and had, or was soon to be, relocated to New York and, further, that he intended to relocate the children to New York. The mother requested that the trial court grant her temporary custody pending a hearing, after which, she requested, she be awarded sole physical custody of the children.

The father filed an answer and a counterclaim on January 22, 2013. In his answer, the father asserted that the children’s health insurance had lapsed when he was laid off from his job on September 18, 2012, but that it had been reinstated as soon as he became employed by the United States Army in December 2012; therefore, he contended, there was no reason to grant the mother’s request to recalculate her child-support obligation. In his counterclaim, the father requested an upward modification of child support. The father filed another answer on April 12, 2013, denying the allegations in the mother’s amended petition.

A hearing was held on April 12, 2013. Because the father had moved to New York, he appeared at the hearing via telephone; the father’s attorney personally appeared at the hearing. The trial court entered an order on April 17, 2013, in which it stated that custody and visitation would remain the same and that the children were not to be permanently relocated pending a final hearing. A trial was held on June 25, 2013, at which the trial court received evidence ore tenus. The trial court entered a final judgment on June 27, 2013, which provided, in pertinent part, that the father would retain sole physical custody of the children and that he was permitted to permanently relocate them to New York. The judgment included a visitation schedule and allotted the transportation costs between the parties. The judgment also stated that, “[d]ue to increased visitation expense for the mother, current child support is terminated in deviation from the child support guidelines.” The judgment was modified in order to correct typographical errors; the modified judgment was entered on July 1, 2013.

The mother filed a motion to alter, amend, or vacate on July 26, 2013, in which she petitioned the trial court to order the father to notify her within 24 hours of learning that he would be deployed. The father also filed a motion to alter, amend, or vacate on July 26, 2013, in which he requested that the trial court amend the visitation schedule and order the mother to pay child support. The trial court entered an order on August 28, 2013, granting the mother’s postjudgment motion and denying the father’s postjudgment motion. The mother filed a notice of appeal to this court on October 4, 2013; the father filed a cross-appeal on October 18, 2013.

The mother raises two issues in her brief on appeal: (1) whether the Alabama Parent-Child Relationship Protection Act (“the Act”), § 30-3-160 et seq., Ala.Code 1975, is applicable to a custodial parent who joins the military after an initial divorce judgment is entered and (2) whether the trial court erred to reversal in finding that a material change in circumstances had occurred but that it did not warrant a change in custody. In his cross-appeal, the father argues that the trial court erred by failing to order the mother to pay any amount of child support, in contravention of Rule 32, Ala. R. Jud. Admin.

We first address the mother’s argument regarding the Act. Section 30-3-169.4, Ala.Code 1975, provides:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

However, § 30-3-162(a), Ala.Code 1975, provides that,

“[e]xcept as provided in subsection (c) of Section 30-3-165, this article shall not apply to a person who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order from the government.”

The mother argues that the “[father’s voluntary entry into active military duty while already under a child custody order cannot serve to defeat the rebuttable presumption against relocation pursuant to § 30-3-169.4.” Mother’s brief at 54.

Testimony at the trial revealed that the father had enlisted in the United States Marine Corp Reserves in 2000, while the parties were married, and that he had been deployed shortly before the divorce action was initiated. The father left the Marine Reserves in 2006. The father enlisted in the Alabama National Guard in March 2011. In May 2012, the father accepted a nearby full-time position with the Alabama National Guard as a recruiter. The father testified that, sometime thereafter, he was informed that his recruiter position would likely be eliminated due to a lack of funding. According to the father, he unsuccessfully applied for other recruiter positions within Alabama and also began to explore enlisting in the United States Army. The father testified that he was notified that he had been accepted into the United States Army, on active-duty status, on December 18, 2012, and that he was to be stationed at Ft. Drum in New York.

“Our standard of review is well settled. A trial court’s judgment based on ore tenus evidence will be presumed correct and will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that the judgment is unsupported by the evidence so as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). However, when an appellate court is presented with an issue of law, we review the judgment of the trial court as to that issue de novo. Ex parte Perkins, 646 So.2d 46 (Ala.1994).”

Henderson v. Henderson, 978 So.2d 36, 39 (Ala.Civ.App.2007).

The mother is correct that there is no caselaw or statute in support of her argument. The mother is also correct that courts are required to give words in a statute their “plain meaning.”

“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). See also Kimberly-Clark Corp. v. Eagerton, 445 So.2d 566 (Ala.Civ.App.1983).”

Henderson, 978 So.2d at 39-40.

There is nothing included in the language of § 30-3-162 to indicate that the legislature intended to place a timing requirement on parents who enlist in the armed forces for active duty. Had the legislature intended to include such a requirement, it most certainly could have. We find no reason to conclude, as urged by the mother, that the timing of the father’s enlistment in the Army voids the exemption to the Act that is provided in § 30-3-162. Therefore, we hold that the mother’s argument is without merit.

The mother next argues that the trial court erred to reversal in denying her petition to award her sole physical custody of the children. The mother admits that she had to meet a high burden of proof.

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

In its judgment, the trial court stated:

“In this case there is no question that a disruption in the lives of [the children] will occur and has occurred, and that there exists a material change of circumstances since the prior order in this case. There are geographic changes and there are changes in the children’s ability to have access to those they are most attached to. There is no doubt that this change will have an effect on the children. So the question becomes whether or not as a result of those changes any benefits of transferring custody to the mother will outweigh the negative impact of uprooting them from their home with their father.”

The trial court went on to point out that the children had primarily lived with the father for seven years. It was undisputed that the parties and the children had lived in the same area throughout the children’s lives, that both the maternal and paternal extended families had lived close by, and that the children had always attended the same school. The father testified that he is married and that he and his current wife have a child. The father and his current wife testified that the children are very close to their child, that his current wife has coached the daughter’s athletic teams, and that his current wife ensures that the children attend church regularly. The mother testified that she exercises all of her awarded visitation, that she attends the children’s activities, and that she seeks out opportunities to spend time with the children as much as possible, such as eating lunch with them at school.

At trial, the mother introduced into evidence posts from the father’s social-media account that could be construed as vulgar or inappropriate. The father testified that the posts were of “poor taste.” The mother also presented evidence indicating that the daughter “followed” the father’s social-media account; however, there was no evidence indicating that the daughter had. viewed the allegedly inappropriate posts.

Both parties testified about past behaviors of the other party that were either immature or lacking in good judgment. The trial court stated in its judgment that

“[b]oth parties pointed out that the other had made poor life choices, and those do give the Court concern. But the Court can’t say that the mother is a measurably better parent than the father. In fact, based on its observation, the Court believes the mother’s position is just a bit more tainted with her own self interests.”

The trial court further found that,

“[i]n terms of the child’s attachments, if the children were to be placed primarily with their mother, they would have the benefit of maintaining their present local connections, including their mother, but they would largely lose their primary connection—with their father, their primary custodian over the last seven years, as well as his family.”

The standard of review of a custody determination is well settled:

“ ‘ “ ‘Our standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, ... and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.
“[Ex parte Bryowsky,] 676 So.2d [1322,] 1324 [ (Ala.1996) ]; see Lamb [v. Lamb], 939 So.2d [918,] 922 [(Ala.Civ.App.2006) ]; see also Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ (citation omitted)).”

Ex parte Blackstock, 47 So.3d 801, 805 (Ala.2009). Considering all the evidence, the trial court could have reasonably determined that a modification of custody would not “materially promote the child[ren]’s best interests, and that the benefits of the change would not more than offset the inherently disruptive effect caused by uprooting the children].” Adams, 21 So.3d at 1252. Because the trial court’s judgment is supported by sufficient evidence, it is not plainly and palpably erroneous, and, thus, we affirm the judgment as to this issue.

On cross-appeal, the father argues that the trial court failed to comply with Rule 32, Ala. R. Jud. Admin. Rule 32(A)(1) provides, in pertinent part:

“(1) Reasons for Deviating from the Guidelines. Reasons for deviating from the guidelines may include, but are not limited to, the following:
“(b) Extraordinary costs of transportation for purposes of visitation borne substantially by one parent.”

(Emphasis added.)

The trial court stated in its judgment regarding child support: “Due to increased visitation expense for the mother, current child support is terminated in deviation from the child support guidelines.” The trial court set out in its judgment a detailed visitation schedule that specified which party would be responsible for the transportation costs. The judgment first identified four long-term visitation periods, such as Christmas and summer break, and instructed that the father pay all transportation costs associated with those visits. The judgment next stated that the mother, with proper notification to the father, had the option of exercising visitation one weekend per month and that the mother would be responsible for the transportation costs associated with those visits. The judgment next provided for optional short-term visitation, primarily weekends attached to a Monday or Friday holiday from school, that the mother could also exercise with proper notification to the father. The judgment instructed the father to reimburse the mother for one-half of the costs of transportation for the short-term visits, not to exceed $200 per visit.

“This court has consistently held that ‘matters relating to child support “rest soundly within the trial court’s discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.” ’ Scott v. Scott, 915 So.2d 577, 579 (Ala.Civ.App.2005) (quoting Bowen v. Bowen, 817 So.2d 717, 718 (Ala.Civ.App.2001)).”

Suggs v. Suggs, 54 So.3d 921, 923 (Ala.Civ.App.2010). However, “a child in this State has an inherent right to receive support from his or her parents.” Id. (citing Ex parte Tabor, 840 So.2d 115, 120 (Ala.2002)).

Although we recognize that the father voluntarily joined the active-duty military with the knowledge that he would likely be transferred, it does not appear from our reading of the trial court’s judgment that the mother was required to “substantially [bear]” the costs of visitation-related expenses. Therefore, we reverse this aspect of the trial court’s judgment and remand the case to the trial court for the entry of a revised judgment that includes an appropriate amount of child support for the benefit of the parties’ children.

Accordingly, we affirm the judgment with regard to the trial court’s interpretation of the Act and its denial of the mother’s petition to modify custody. We reverse the trial court’s judgment insofar as it failed to award child support, and we remand the case with instructions to the trial court to enter a judgment consistent with this opinion.

APPEAL — AFFIRMED.

PITTMAN, MOORE, and DONALDSON, JJ., concur.

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

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The mother also argues that the trial court erred by allowing the children to be relocated to New York. However, our resolution of the mother’s first issue pretermits that portion of the mother's argument.

      . The mother did file a reply to the father's cross-appeal.