author: PER CURIAM. SHAW, Justice MOORE, Chief Justice

text:
    UTILITIES BOARD OF the CITY OF OPP v. SHULER BROTHERS, INC.
    1111558.
    Supreme Court of Alabama.
    June 21, 2013.
    Rehearing Denied Aug. 23, 2013.

      James H. Pike of Shealy, Crum & Pike, P.C., Dothan, for appellant.
    H. Hampton Baxley of Ramsey, Baxley & McDougle, Dothan, for appellee.
   PER CURIAM.

The Utilities Board of the City of Opp (“the Utilities Board”), the third-party defendant below, appeals from the Houston Circuit Court’s August 9, 2012, order denying its motion to dismiss, on statute-of-limitations grounds, the third-party complaint filed against it by Shuler Brothers, Inc. We affirm in part, reverse in part, and remand.

Facts and Procedural History

On January 18, 2012, Alabama Electric Company, Inc. of Dothan (“AEC”) filed a complaint against Shuler Brothers, which owns and operates a wood-chipping operation. In the complaint, AEC stated claims seeking recovery for work and labor done and alleging breach of contract after Shu-ler Brothers refused to pay an invoice for repairs AEC had made to Shuler Brothers’ chipper motor. On March 23, 2012, Shuler Brothers filed an answer to the complaint and a counterclaim alleging negligence and seeking recovery for lost income.

On March 27, 2012, Shuler Brothers filed a third-party complaint against the Utilities Board seeking recovery for loss of income and $145,545 for repairs to the chipper motor. In the third-party complaint, Shuler Brothers alleged that, in December 2009, it contacted AEC and asked it to remove and repair a large chipper motor that ■ had recently failed. AEC performed the requested repair work, reinstalled the motor on January 20, 2010, and submitted an invoice for $75,000, which Shuler Brothers promptly paid.

Shuler Brothers also alleged that, on or about February 22, 2010, the motor suffered another failure, and it asked AEC to repair it. AEC performed the requested repair work, reinstalled the motor at Shu-ler Brothers’ facility on March 11, 2010, and attempted to restart it. However, immediately after it was restarted, the motor suffered what appeared to be the same failure as before, and Shuler Brothers asked AEC to repair it, which AEC did.

According to paragraph 8 of Shuler Brothers’ third-party complaint:

“[O]n March 23, 2010, [AEC] reinstalled the motor and, during start-up, was forced to shut it down before the engine failed again. [Shuler Brothers] contacted the Third-Party Defendant, the Utilities Board of the City of Opp, ... to investigate the incoming line problem. [T]he lineman from the [Utilities Board] discovered and replaced ‘3 crimped connectors’ on the incoming side of the meter and pole that were loose, cracked and showing signs of recent and old arcing damage.”

Shuler Brothers alleged that the Utilities Board was negligent in maintaining the power lines going into Shuler Brothers’ facility. It also alleged that it was foreseeable that, if the chipper motor failed, Shuler Brothers’ business would be shut down and Shuler Brothers would lose income as a result. Therefore, it alleged that the Utilities Board owed it for the cost of the repairs AEC had sued it for. Finally, Shuler Brothers alleged that it did not discover the Utilities Board’s negligence until it was served with the complaint by AEC.

On April 80, 2012, the Utilities Board filed a motion to dismiss the third-party complaint on statute-of-limitations grounds pursuant to Rule 12(b)(6), Ala. R. Civ. P. Specifically, it asserted that the negligence claim was governed by the two-year statute of limitations found in § 6-2-88, Ala.Code 1975. It also asserted that, even though Shuler Brothers suggested that it did not discover the Utilities Board’s alleged negligence until it was served with the complaint by AEC, paragraph 8 of the third-party complaint, quoted above, established that Shuler Brothers should have been aware of the Utilities Board’s alleged negligence as early as March 23, 2010. Therefore, the Utilities Board asserted that the third-party complaint, which was filed on March 27, 2012, was barred by the applicable two-year statute of limitations and should be dismissed.

On June 6, 2012, Shuler Brothers, which was represented by new counsel, amended its third-party complaint to add a claim alleging breach of contract. It alleged:

“[Shuler Brothers] avers that a contract existed/exists between the [Utilities Board] and [Shuler Brothers] whereby the [Utilities Board] had/has the duty to provide electrical power/service in a manner consistent with the safe and proper operation of [Shuler Brothers’] manufacturing facility as contracted. Said contract exists by virtue of the [Utilities Board] undertaking the responsibility to provide electrical power/service to [Shuler Brothers’] facility and the timely and consistent payments made by [Shuler Brothers] to the [Utilities Board] for the electrical power consumed.”

On June 7, 2012, Shuler Brothers filed a response in opposition to the Utilities Board’s motion to dismiss the third-party complaint. It argued that, even though it included allegations in its complaint about the Utilities Board’s replacing “3 crimped connectors,” it did not know at that time that the Utilities Board’s negligence regarding the condition of the power line caused the chipper motor to malfunction. Shuler Brothers also argued that, even when it filed its counterclaim on March 23, 2012, it did not know whether the damage it suffered was caused by the negligence of AEC or of the Utilities Board. Therefore, citing Desouza v. Lauderdale, 928 So.2d 1035 (Ala.Civ.App.2005), it argued that there were genuine issues of material fact as to when its injury was first discovered and that those issues precluded a judgment on statute-of-limitations grounds.

The Utilities Board filed a motion to dismiss the amended third-party complaint, arguing that, for the reasons detailed hereinafter, Shuler Brothers’ claims were barred by the two-year statute of limitations set forth in § 6 — 2—38(i), Ala. Code 1975. Citing Rumford v. Valley Pest Control, Inc., 629 So.2d 623, 627 (Ala.1993), the Utilities Board asserted that, “ ‘[gjenerally, a cause of action for injury or damage to property accrues, so as to start the running of limitations, on the date of the injury or damage.’ ” (Quoting 54 C.J.S. Limitations of Actions § 176 (1987).) Also, citing Singer Asset Finance Co. v. Connecticut General Life Insurance Co., 975 So.2d 375, 382 (Ala.Civ.App.2007), it asserted that, although Shuler Brothers attempted to avoid the limitations bar by alleging that it did not discover the Utilities Board’s negligence until it was served with the complaint, “there is no ‘discovery rule’ for negligence claims that would toll the running of the statute of limitations from the time the cause of action was ‘discovered’ by the plaintiff.” Regarding the breach-of-contract claim, the Utilities Board argued that Shuler Brothers’ claim sounded in tort, rather than in contract, and that, therefore, the two-year limitations period set forth in § 6-2-38(l), Ala. Code 1975, applied. The Utilities Board asserted that all the damage occurred on or before March 11, 2010, and that the statute of limitations commenced no later than that date. Therefore, it concluded that, because Shuler Brothers waited until March 27, 2012, to file its third-party complaint against it, its claims were barred by the two-year statute of limitations.

After conducting a hearing during which the parties presented arguments concerning the motion to dismiss, the trial court accepted briefs from the parties. Thereafter, it entered an order denying the Utilities Board’s motion in which it explained: “Because factual issues remain as to when Shuler [Brothers] discovered that [its] damage[ ] may be the result of action/inaction or conduct by [the Utilities Board,] [its] motion to dismiss is ... denied.” The Utilities Board filed a motion to reconsider, which the trial court summarily denied.

The Utilities Board asked the trial court to certify its denial of the motion to dismiss for an appeal by permission pursuant to Rule 5, Ala. R.App. P. The trial court entered the requested certification, and the Utilities Board filed a petition for permissive appeal in this Court. This Court granted the petition and ordered answer and briefs.

Standard of Review

“‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [it] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [it] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’
“Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).”

DGB, LLC v. Hinds, 55 So.3d 218, 223 (Ala.2010).

“ ‘Inasmuch as the issue before us is whether the trial court correctly denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, “[t]his Court must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Moreover, as the defendants sought only a Rule 12(b)(6) dismissal without resort to facts supplied by affidavit or other evidentiary material outside the allegations of the complaint, and as the trial court accordingly treated the motion only as what it was, a motion to dismiss and not a motion for summary judgment with evidentiary materials outside the allegations of the complaint, those allegations themselves are the only potential source of factual support for the defendants’ claims of immunity. Rule 12(b), Ala. R. Civ. P.; Mooneyham v. State Bd. of Chiropractic Examiners, 802 So.2d 200 (Ala.2001); Garris v. Federal Land Bank of Jackson, 584 So.2d 791 (Ala.1991); Hales v. First Nat’l Bank of Mobile, 380 So.2d 797 (Ala.1980).’ ”

Ex parte Walker, 97 So.3d 747, 749-50 (Ala.2012).

Discussion

The trial court certified the following question for permissive appeal:

“[Wjhether the statute of limitations for Shuler Brothers, Inc.’s negligence and breach of contract claims commenced upon discovery of the damage to its chipper motor, or upon the discovery that the damage may have resulted from the action/inaction or conduct by the Utilities Board of the City of Opp.”

A.

The Utilities Board argues that the trial court erred in denying its motion to dismiss Shuler Brothers’ negligence claim on statute-of-limitations grounds. In support, it reiterates its argument that a cause of action for damage accrues, and the statute of limitations starts running, on the date the damage occurs. See Rumford, supra. It also reiterates its argument that there is no “discovery rule” that would toll the running of the statute of limitations on a negligence claim. See Singer Asset, supra. The Utilities Board asserts on appeal, as it did below, that all the damage occurred on or before March 11, 2010, and that the statute of limitations started running no later than that date. Because Shuler Brothers waited until March 27, 2012, to file its third-party complaint, the Utilities Board concludes that Shuler Brothers’ negligence claim is barred by the two-year statute of limitations set forth in § 6-2-38(l), Ala.Code 1975, and that the trial court erred in denying its motion to dismiss on that ground.

Shuler Brothers argues that its negligence claim against the Utilities Board is not barred by the two-year statute of limitations. Specifically, it contends that “an action must be commenced within two years of the discovery of the negligence or else [the claims] are forever barred.” Shuler Brothers asserts that the statute of limitations was not triggered on March 11, 2010, because, it says, at that time it lacked knowledge as to the cause of the damage and did not know whether the damage to the chipper motor was caused by the negligence of AEC or the negligence of the Utilities Board. Thus, the gist of its arguments is that questions as to when it first discovered the cause of its injury and the party that was responsible for the injury precluded a judgment on limitations grounds. We disagree.

“The statutory period of limitations for negligence ... actions, found at Ala. Code 1975, § 6-2-38, is two years from the date the injury occurred.... There is, however, no ‘discovery rule’ to toll the running of the limitations period with respect to negligence ... actions.... ”

Henson v. Celtic Life Ins. Co., 621 So.2d 1268, 1274 (Ala.1993). See also Boyce v. Cassese, 941 So.2d 932, 946 n. 2 (Ala.2006) (“Alabama has no ‘discovery rule’ with respect to negligence ... actions that would toll the running of the limitations period.”); Singer Asset, 975 So.2d at 382 (noting that “there is no ‘discovery rule’ for negligence claims that would toll the running of the statute of limitations from the time the cause of action was ‘discovered’ by the plaintiff’); and Williams v. Norwest Fin. Alabama, Inc., 723 So.2d 97, 104 (Ala.Civ.App.1998) (“Alabama has no ‘discovery rule’ with respect to negligence ... actions that would toll the running of the limitations period.”). The “discovery rule” in Alabama applies only to fraud actions, see § 6-2-3, Ala.Code 1975, and cases involving the fraudulent concealment of the existence of a cause of action. See DGB, LLC v. Hinds, supra.

In this case, Shuler Brothers specifically alleged in its third-party complaint that its chipper motor suffered damage in December 2009, on or about February 22, 2010, and on March 11, 2010. It also alleged that, after AEC was forced to shut down the motor on March 23, 2010, to prevent further damage, it contacted the Utilities Board to investigate the incoming-line problem and that the linemen “discovered and replaced ‘3 crimped connectors’ on the incoming side of the meter and pole that were loose, cracked and showing signs of recent and old arcing damage.” We “must accept the allegations of the complaint as true.” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Clearly, Shuler Brothers knew about the damage to the chipper motor, at the latest, on March 11, 2010. Shuler Brothers’ contentions about its lack of knowledge as to the cause of the damage and as to which party’s negligence caused the damage notwithstanding, because there is no allegation or evidence of fraudulent concealment in this case, Shuler Brothers’ arguments concerning the application of the “discovery rule” are unavailing. At the latest, the statute of limitations began to run on March 11, 2010. Therefore, Shuler Brothers’ negligence claim against the Utilities Board, which was filed more than two years later on March 27, 2012, is barred by the statute of limitations and should be dismissed.

B.

The Utilities Board also argues that the trial court erred in denying its motion to dismiss Shuler Brothers’ breach-of-contract claim on statute-of-limitations grounds. The Utilities Board argues that the claim alleged by Shuler Brothers to be a breach-of-contract claim actually sounds in tort, to which the two-year limitations period set forth in § 6-2-38(l), Ala.Code 1975, applies. We disagree.

In its amended third-party complaint, Shuler Brothers alleged:

“[Shuler Brothers] avers that a contract existed/exists between the [Utilities Board] and [Shuler Brothers] whereby the [Utilities Board] had/has the duty to provide electrical power/service in a manner consistent with the safe and proper operation of [Shuler Brothers’] manufacturing facility as contracted. Said contract exists by virtue of the [Utilities Board] undertaking the responsibility to provide electrical power/service to [Shuler Brothers’] facility and the timely and consistent payments made by [Shuler Brothers] to the [Utilities Board] for the electrical power consumed.”

Shuler Brothers also alleged that the Utilities Board “breached this contract by failing to provide electrical power/service in the manner contracted.”

“The question before us is simply whether the plaintiff has stated a cause of action for breach of implied contract. The plaintiff need state only a claim for relief containing a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief to which he deems himself entitled. [Ala. R. Civ. PJ 8(a).”

Berry v. Druid City Hosp. Bd., 333 So.2d 796, 800-01 (Ala.1976).

“ ‘An implied contract arises where there are circumstances which, according to the ordinary course of dealing and common understanding, show a mutual intent to contract. Such a contract must contain all the elements of an express contract, which rests on consent, and is to every intent and purpose an agreement between the parties, and it cannot be found to exist unless a contract status is shown.’ ”

Radiology Assocs., P.A. v. St. Clair Timber Co., 563 So.2d 1020, 1021 (Ala.1990) (quoting Broyles v. Brown Eng’g Co., 275 Ala. 35, 38, 151 So.2d 767, 770 (1963)). “The manner of performance as well as the terms of performance of a contract may be implied from the facts.” Watts Homes, Inc. v. Alonzo, 452 So.2d 1331, 1332 (Ala.Civ.App.1984). Finally, “ ‘[i]t is a general rule in contracts for work or services that there is implied a duty to perform with that degree of skill or workmanship which is possessed by those of ordinary skill in the particular trade for which one is employed.’ ” Watts Homes, 452 So.2d at 1332-33 (quoting C.P. Robbins & Assocs. v. Stevens, 53 Ala.App. 432, 436, 301 So.2d 196, 199 (1974)).

Shuler Brothers alleged that, when the allegations are viewed most strongly in Shuler Brothers’ favor, there was an implied contract for electrical services from the Utilities Board, that the terms of the contract required that the services be provided “in a manner consistent with the safe and proper operation of [Shuler Brothers’] manufacturing facility,” and that the Utilities Board failed to perform in the manner required under the contract. Such allegations — of a breach of contract — are governed by a six-year statute of limitations, and the third-party complaint with respect to this claim was timely filed within that limitations period. See § 6-2-34(9), Ala. Code 1975. Therefore, the denial of the Utilities Board’s motion to dismiss with regard to the breach-of-contract claim was proper.

Conclusion

For the above-stated reasons, we affirm the trial court’s judgment denying the Utilities Board’s motion to dismiss Shuler Brothers’ breach-of-contract claim; we reverse the trial court’s judgment denying the Utilities Board’s motion to dismiss Shuler Brothers’ negligence claim; and we remand this case for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

SHAW, J., concurs specially.

MOORE, C.J., concurs in part and dissents in part.

SHAW, Justice

(concurring specially).

I concur in the main opinion. I write specially to make two observations. First, Shuler Brothers, Inc., wholly fails to discuss in its brief the proper statute of limitations applicable to its breach-of-contract action, and it does not dispute the Utilities Board of the City of Opp’s argument that Shuler Brothers’ breach-of-contract claim is actually a tort claim. I note that “we have a duty to affirm the judgment if the trial court is correct for any reason. See Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000) (‘[T]his Court must affirm the judgment of the trial court if that judgment is supported by any valid legal ground, even if that ground was not argued before the trial court or this Court.’).” Patterson v. Liberty Nat’l Life Ins. Co., 903 So.2d 769, 780 (Ala.2004).

Second, although the Utilities Board argues that language in Bailey v. Liberty Mutual Insurance Co., 451 So.2d 279 (Ala.1984), indicates that, when a contract does not expressly require due care in the act contracted to be performed, a claim that the failure to exercise due care in'performing the act sounds in tort and not contract, the actual contract at issue in Bailey expressly disclaimed any duty of due care. Thus, the language from Bailey cited by the Utilities Board appears to be dicta. The main opinion correctly relies on the rationale stated in Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976), and confirmed in Wright v. Sears, Roebuck & Co., 355 So.2d 353 (Ala.1978); Holley v. St. Paul Fire & Marine Insurance Co., 396 So.2d 75 (Ala.1981) (plurality); Taylor v. Baptist Medical Center, Inc., 400 So.2d 369 (Ala.1981); Plantation South Condominium Ass’n, Inc. v. Profile Management Corp., 842 So.2d 663 (Ala.Civ.App.2001); and Watts Homes, Inc. v. Alonzo, 452 So.2d 1331 (Ala.Civ.App.1984), which indicates that Shuler Brothers’ claim sounds in contract and not in tort.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in affirming the trial court’s order as to the breach-of-contract claim asserted against the Utilities Board of the City of Opp by Shuler Brothers, Inc. (“Shuler Brothers”). However, I respectfully dissent from the Court’s decision to reverse the trial court’s order as to Shuler Brothers’ negligence claim.

I do not believe that Shuler Brothers’ negligence claim accrued before Shuler Brothers knew or reasonably should have known that it was legally injured. Article I, § 10, Ala. Const.1901, guarantees “[t]hat no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or by counsel, any civil cause to which he is a party.” Similarly, Art. I, § 13, guarantees “[t]hat all courts shall be open; and that every person, for any injury done him, in his lands, goods, persons, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.” These constitutional provisions guarantee the right to bring a civil action for an injury done to a person. But how can someone bring an action if he does not realize or cannot reasonably realize that he has been legally injured? In my view, then, a cause of action can accrue only when a person knows or reasonably should have known that he has been legally injured. Thus, a statute of limitations is unconstitutional as applied under §§ 10 and 13 if a cause of action to which the statute applies accrues when a party is injured but before he knows or reasonably should have known that he has been legally injured and this accrual causes his action to be barred. Cf. Payne v. Alabama Cemetery Ass’n, 413 So.2d 1067, 1072 (Ala.1982) (holding that a cause of action for negligent destruction of bodily remains did not accrue until the plaintiff discovered that her mother’s remains were not in her grave); Alabama Farmers Coop., Inc. v. PricewaterhouseCoopers, LLP, 911 So.2d 689, 694 (Ala.Civ.App.2004) (holding that a cause of action for negligence accrued when the plaintiff discovered the injury), reversed on other grounds, Ex parte Alabama Farmers Coop., Inc., 911 So.2d 696 (Ala.2004).

In this case, Shuler Brothers alleges that it did not discover the Utilities Board’s negligence until January 19, 2012, when it was served with the complaint filed by Alabama Electric Company, Inc. Because we must accept these allegations as true in reviewing a ruling on a motion to dismiss, I would hold that Shuler Brothers’ cause of action could not accrue until January 19, 2012. Shuler Brothers brought its negligence claim on March 27, 2012, well within the two-year statute of limitations; therefore, I would affirm the trial court’s order on this claim as well.

      . The facts alleged in AEC’s complaint against Shuler Brothers regarding the damage and the repairs to the chipper motor are substantially similar to the facts alleged in Shuler Brothers’ third-party complaint against the Utilities Board.

      . In its brief, Shuler Brothers cites cases that are clearly inapplicable, including toxic-substance-exposure cases and equitable-tolling cases, see, e.g., Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), overruled by Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008); a plurality opinion that addressed questions regarding discovery of the damage, rather than the cause of the damage or the party responsible for the damage, see Desouza v. Lauderdale, 928 So.2d 1035 (Ala.Civ.App.2005); and a federal district court case that refutes its arguments by stating that a negligence cause of action accrues when the injury occurs and further stating that, in Alabama, the discovery rule applies only to fraud actions.

      . The Utilities Board relies primarily on some of the reasoning used in Bailey v. Liberty Mutual Insurance Co., 451 So.2d 279 (Ala.1984), to support its argument. However, the reasoning in that case and the line of cases upon which it was based were disavowed by this Court in Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976), in which this Court overruled Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971).

      . This Court has often construed § 10 and § 13 together. See, e.g., Ex parte Wetzel, 243 Ala. 130, 133, 8 So.2d 824, 825 (1942); Quick v. Western Ry. of Ala., 207 Ala. 376, 377, 92 So. 608, 609 (1922).

      . By contrast, a statute of limitations that does not allow a cause of action to accrue unless and until the party discovers the injury is not unconstitutional under §§10 and 13. See, e.g., § 6-2-3, Ala.Code 1975 (providing a discovery rule for fraud actions).


source: Caselaw Access Project

author: PITTMAN, Judge. BRYAN, Judge,

license: Public Domain

text:
    D.M.P.C.P. v. T.J.C., Jr.
    2110700.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2012.
    Rehearing Denied Feb. 8, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120611.

      Anne C. Christensen of South Alabama Law, LLP, Andalusia, for appellant.
    David J. Harrison, Geneva, for appellee.
   PITTMAN, Judge.

This is the second time these parties have been before this court. In the first appeal, which we dismissed as having been taken from a nonfinal order, we recounted the procedural history of the case as follows:

“On September 11, 2007, the Coving-ton Circuit Court entered a ‘Judgment of Divorce’ in case no. DR-06-306, purporting to divorce D.M.P.C.P. (‘the mother’) and T.J.C., Jr. (‘the father’); to divide their marital assets and debts; to reserve the issues of custody, support, and visitation regarding the parties’ minor child, T.J.C. III, until the conclusion of the criminal proceedings then pending against the father for sexual abuse of S.G., the mother’s minor [daughter] by a former marriage; and to direct the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The circuit court further awarded pendente lite custody of T.J.C. III to the mother,⅛ granted the father visitation rights, ordered the father to pay pendente lite child support, and ‘reserved jurisdiction to hold ... further hearings ... upon written motion of either party.'
“In January 2009, the father sought a hearing on the reserved issues of custody, support, and visitation, alleging that he had been acquitted of the criminal offense. Following ore tenus proceedings [in February 2010], the circuit court entered a ‘Final Decree Concerning Child Custody, Visitation, and Support’ on July 30, 2010, awarding custody of T.J.C. III to the father; ordering the mother to pay child support; determining that the father was in arrears in the payment of pendente lite child support; and reserving jurisdiction to ‘set the exact amount thereof in some future proceedings.’ ”

D.M.P.C.P. v. T.J.C., 91 So.3d 75, 76 (Ala.Civ.App.2012). After the first appeal was dismissed, the parties agreed that T.J.C., Jr. (“the father”), owed a pendente lite child-support arrearage in the amount of $850, and the trial court entered a judgment awarding D.M.P.C.P. (“the mother”) that sum on April 11, 2012. The mother timely appealed, challenging the custody award to the father.

Factual Background

At the time of the custody hearing in February 2010, the father was living in his parents’ home, a three-bedroom house in the Fleeta community near Opp, and was employed full-time at Reliable Products Company in Geneva. The mother was living in her parents’ home, a four-bedroom house in Milton, Florida, with her fiancé, who is a United States Air Force retiree, and her three children: S.G., a 13-year-old daughter; D.G., an 11-year-old son— both from the mother’s previous marriage; and T.J.C. Ill (“the child”). The mother was employed part-time by the local school board as a substitute teacher’s aide and clerical worker; she was also a student at Pensacola Junior College.

The mother had had pendente lite custody of the child, who was then approaching his sixth birthday, for three and a half years. The father had been exercising twice-monthly weekend visitation with the child during the pendency of the custody proceedings. The parties had been meeting in Crestview, Florida, for the visitation exchanges.

The evidence indicated that the child is good-natured, well-mannered, and shy. He has his own room when he visits at the paternal grandparents’ house, but he is somewhat fearful and prefers to sleep in the father’s room, where he has a separate bed. The child has one playmate near his own age in the paternal grandparents’ neighborhood. On the weekends when he has visitation with the child, the father prepares the child’s breakfast and lunch, plays with him, and takes him to the small Methodist church where the father’s family members have long been active. The paternal grandmother stated that, if the father were awarded custody of the child, she would care for the child at times when the father is at work.

In addition to her parents, the mother has a large extended family in Milton, including cousins near the same age as the child. The mother’s parents, like the father’s parents, are retired. The maternal grandparents’ yard is the place where all the neighborhood children, including the child’s two best friends, congregate to play. The mother said that, although she had offered to drive the child to school, the child prefers to rise early and fix his own breakfast so that he can ride the school bus with his neighborhood friends and his half brother. The child shares a room with the half brother and, according to the mother, the two are very close despite the five-year difference in their ages. The mother said that when the child’s half siblings had visited their father in Texas the child had missed them a great deal.

The child enjoys soccer and has participated in a church soccer league for the past two years. The mother attends some but not all the child’s soccer games because she coaches her daughter’s soccer team. The mother is vice president of the middle-school parent/teacher organization and has been a Scout leader. According to the child’s kindergarten teacher, the mother volunteers on a regular basis at the child’s elementary school and is always willing to help with activities. The kindergarten teacher testified that the schools in Florida, where she had been teaching for 23 years, have a more demanding academic curriculum than the schools in Alabama, where she had been born and raised. She stated that the child is an average student who had struggled to catch up after he had missed school on several Mondays at the beginning of the current term. The teacher stated that the child speaks favorably of both his father and the mother’s fiancé, and it is evident, she said, that the child is “very much loved.” Over the mother’s objection, the teacher was allowed to state her personal opinion that “a child should be brought up in a church environment.”

On cross-examination by the father’s counsel, the mother was asked how her fiancé (whom she stated was the same age as she) could retire from the military at the age of 35. The mother responded that her fiancé had been diagnosed with terminal Parkinson’s disease and had received a medical retirement. Opposing counsel then questioned the mother as to whether she thought she was “sending the wrong signal to [her] children with [her fiancé] living in [the] household and being in the bed with [her] at night.” The mother was also asked on cross-examination whether the child attended church when he was with her. The mother stated that she considered herself a Christian but that she had not taken the child to church for “about a year” because she had not found a church in which she was comfortable.

The mother’s fiancé testified that the maternal grandparents had allowed him to move into their home in June or July of 2009 after he and his former wife had divorced. At that time, he said, he and the mother were friends and he had slept on the couch. Six months later, he said, he and the mother developed a romantic and sexual relationship, and they currently had plans to marry. The fiancé stated that he loved the child “as if [the child] were [his] own.”

The trial court’s custody award states:

“The care, custody and control of said child should be, and it hereby is, awarded unto [the father], to be exercised in the home of his parents, wherever they may elect to reside. Scarlan v. Rowinsky, 611 So.2d 1092 (Ala.Civ.App.1992).
“The Court has, of course, considered an award of joint custody as required by Ala.Code § 30-3-152, but it thereupon awards the form of custody determined - to be in the best interests of the parties’ child, which is always the court’s primary concern.
“Obviously, the above award of custody does represent an alteration of the temporary custodial status heretofore existing. However, the benefits thereof unto the child outweigh any disruption in his life caused by the alteration, and such alteration will likewise materially promote his best interests.
“Moreover, there have been material changes in the circumstances of the parties since the temporary custody orders (superseded hereby) came into effect, and those changes are sufficient to justify the Court in proceeding as it does in this decree.”

Standard of Review

The mother suggests that a deferential standard of review is inappropriate in this case because almost six months elapsed between the custody hearing and the trial court’s custody order of July 30, 2010, during which time, she says, the trial court “could not remember the testimony ... and listened to tape recordings of the trial.” There is no indication in the record that the trial court was unable to remember the trial testimony. The July 30, 2010, order merely states: “The court, in order to gain a greater grasp of the issues, has again listened to the entire testimony as presented on February 9, 2010, having done so by resort to the court reporter’s tape recordings thereof.” We conclude that our standard of review is as stated in Ex parte Fann, 810 So.2d 631, 633 (Ala.2001):

“When [an appellate court] reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: ‘ “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....” ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

Discussion

The mother raises several arguments on appeal that can be distilled into four issues, namely: (I) whether the father was required to meet the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in order to be awarded custody of the child; (II) whether the trial court erroneously ignored evidence that was adverse to the father and gave undue weight to evidence that it perceived to be adverse to the mother; (III) whether the trial court’s judgment is flawed because it requires the father to exercise his custodial rights in the home of the paternal grandparents; and (IV) whether the trial court’s judgment withstands scrutiny under a “best-interests” standard. We will address those issues in turn.

I.

Citing Rich v. Rich, 887 So.2d 289 (Ala.Civ.App.2004), the mother contends that, despite the language of the September 11, 2007, order awarding her “pendente lite” custody, the trial court evidently (and, she says, correctly) considered the award to be one of “temporary” custody to which the McLendon standard applied. The mother further contends that the father did not meet the McLendon standard.

Rich is distinguishable. The successive custody awards in that case were awards of “temporary” custody — or “permanent custody subject to change,” Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) — because they “were not made with the ‘pendency of the [existing] litigation’ in mind.” Rich, 887 So.2d at 300 (quoting J.P., 641 So.2d at 278).

“Instead, each of those judgments was a custody award made by the trial court in such a manner as to allow more facts to be developed — i.e., to allow a trial period with the custodial parent and to make it possible to base any subsequent change in custody on the history of the parties’ relationships that developed during that period.”

Rich, 887 So.2d at 300. In contrast, the September 11, 2007, order in the present case was a pendente lite custody award because it was made with the pendency of the existing litigation in mind — litigation that awaited only the resolution of criminal charges against the father and not the development of new facts regarding the parties’ relationships.

The mother argues that the trial court’s statement in its September 11, 2007, order that the court would set a hearing and render a custody judgment “upon written motion of either party” actually makes the pendente lite custody award a “ ‘prior judicial decree’ for purposes of McLendon,” Rich, 887 So.2d at 300, because, she says, the trial court’s language suggested that the' September 11, 2007, custody award was final unless either party was successful in petitioning for its modification. We disagree. The September 11, 2007, order states:

“[T]he Court reserves jurisdiction to hold a further hearing or hearings with respect to the matters set out below, and to then render the ultimate judgment thereon as the evidence may warrant. It will go forward and do so upon written motion of either party.”

The trial court’s statement that it would set a hearing and “render the ultimate judgment ... as the evidence may warrant” indicates that the trial court recognized that it had not yet entered a final custody award and that a hearing on the matter would be set upon notification by either party that the father’s criminal charges had been resolved.

The mother next argues that the present case should be governed by the McLendon standard because of the passage of time. She points out that the September 11, 2007, custody award remained in “ effect for three and a half years — two-thirds of the child’s life.

“[PJendente lite orders ... do not activate the McLendon rule.” Sims v. Sims, 515 So.2d 1, 3 (Ala.Civ.App.1987).

“If there has been a grant of primary physical custody to one party, then McLendon applies; if not, the ‘best interest’ standard applies. Ex parte Couch, 521 So.2d 987 (Ala.1988). The [September 11, 2007,] order did not activate the McLendon rule, because it was a pendente lite order. ‘[A] pendente lite order, whether entered ex parte or after notice and hearing, clearly envisions a temporary disposition of custody pending a later final determination of the custody dispute.’ Sims v. Sims, 515 So.2d 1, 2 (Ala.Civ.App.1987). The [September 11, 2007,] order indicates that the [mother] was granted custody pending trial, after which the court would make a final determination regarding custody. Tt is well settled that a pen-dente lite order changing custody does not shift the burden of meeting the McLendon standard to the parent who temporarily loses custody by virtue of that order. See T.L.L. v. T.F.L., Jr., 580 So.2d 1359 (Ala.Civ.App.1991); Sims v. Sims, 515 So.2d 1 (Ala.Civ.App.1987).’ D.P.M. v. D.B., 669 So.2d 191, 194 (Ala.Civ.App.1995).”

C.M.L. v. L.S.M., 680 So.2d 375, 377 (Ala.Civ.App.1996).

This court has previously rejected the argument that the passage of time between the entry of a pendente lite custody order and the final custody award somehow shifts to the noncustodial parent the burden of meeting the McLendon standard. See Grant v. Grant, 820 So.2d 824, 825 (Ala.Civ.App.2001).

To the extent that the trial court purported to apply the McLendon standard, it erred. Such error was, however, harmless, because, as we discuss infra, the trial court’s judgment is due to be affirmed under the less stringent best-interests standard. See Rehfeld v. Roth, 885 So.2d 791, 795 (Ala.Civ.App.2004) (stating that any error in applying the McLendon standard to a custody-modification petition was harmless error because the trial court’s determination that the petitioner had satisfied the McLendon standard necessarily meant that the petitioner had met the best-interests standard); I.M. v. J.P.F., 668 So.2d 843, 845 (Ala.Civ.App.1995) (noting that “the trial court applied the McLendon standard ... rather than the ‘best interest’ standard, but because the McLendon standard is more stringent, the trial court’s error in that regard is harmless”).

II.

The mother argues that the trial court ignored evidence indicating (a) that the father had violated previous orders to pay pendente lite child support and to deliver certain personal property to her; (b) that the father had to be served with a petition to modify the visitation schedule before he agreed to return the child to the mother’s custody in time to begin kindergarten on Monday morning, August 24, 2009, and for several Mondays after that; and (c) that it was not in the best interests of the child to separate him from his half siblings. The mother also argues that the trial court accorded undue weight to the presence of her fiancé in the household and to her irregular church attendance.

The trial court did not ignore evidence indicating that the father had failed to pay pendente lite child support. This court dismissed the mother’s first appeal because the trial court had, in fact, expressly determined that there was a child-support arrearage but had failed to determine the amount of the arrearage. See D.M.P.C.P. v. T.J.C., 91 So.3d at 76. The parties’ agreement as to the amount of the arrear-age resulted in the rendition and entry of the trial court’s judgment on April 11, 2012.

Nor did the trial court ignore evidence indicating that the father had failed to deliver certain items of personal property to the mother. The father acknowledged at the beginning of the trial in February 2010 that he had neglected to transfer the property to the mother and stated that he had brought the property with him that day to deliver to the mother. The trial court could have concluded that both issues about which the mother now complains had been resolved to the mother’s satisfaction and should not have figured predominately in the court’s child-custody determination.

The mother argues that the father offered a “lame excuse” for failing to return the child from visitation periods so that the child could attend kindergarten at the beginning of the 2009-2010 school term. The father testified that he had not known when the school year started in Florida and that, when he had learned that the child had missed school on Mondays when the father had been exercising his visitation rights, he had agreed to modify the visitation schedule because to do otherwise would, he said, “mess up [the child’s] academics.” The trial court was entitled to give the father, a first-time parent of a school-age child and one with whom the mother had not regularly communicated about issues concerning the child, the benefit of the doubt on this issue. “[I]t is the province of the trial court, not of this court, ... to make credibility determinations.” Sims v. Sims, 85 So.3d 407, 412 (Ala.Civ.App.2011).

The mother’s arguments with respect to separating the child from his half siblings and weighing against her the facts that she was cohabiting with her fiancé and not regularly attending church present more serious issues, but they are issues for which the trial court had the prerogative to weigh the evidence as it saw fit within the limits of its discretion.

“A determination as to the weight to be given testimony presented to a trial court while that court is sitting as a trier of fact is fully within the discretion of the court since one of the primary functions of a trier of fact is to weigh the evidence before it and reach its conclusions according to the weight given to each portion of evidence presented.”

Stewart v. Stewart, 354 So.2d 816, 821-22 (Ala.Civ.App.1977). It is within the province of the trial court to “‘assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.’” Vestlake Cmtys. Prop. Owners’ Ass’n v. Moon, 86 So.3d 359, 367 (Ala.Civ.App.2011) (quoting Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005)). “ ‘In order to reverse the trial court ..., ... we would have to reweigh the evidence, ... which we are [not] allowed to do.’ ” Id.

In Ex parte Devine, 398 So.2d 686 (Ala.1981), our supreme court held that, in determining the best interests and welfare of a child, the trial court must consider the individual facts of each case:

“[T]he court must ... consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”

398 So.2d at 696-97. Based on Devine, the trial court was authorized to consider, among other factors, the “moral ... needs” of the child, “the respective home environments offered by the parties,” and “the capacity ... of each parent to provide for the ... moral needs of the child[ ].” Id.

The mother cites authority standing for the proposition that a parent’s sexual misconduct may not serve as a factor that triggers a change in custody when the record lacks any evidence indicating that the misconduct has had a detrimental effect on the child. The cases cited by the mother — Wade v. Clark, 564 So.2d 982 (Ala.Civ.App.1990), and Smith v. Smith, 464 So.2d 97 (Ala.Civ.App.1984) — concern actions seeking to modify an initial custody award. The mother cites no authority indicating that a parent’s sexual misconduct may not be considered as a factor in making an initial custody award unless that conduct is shown to have had a detrimental effect on the child. In fact, our caselaw suggests that the trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child. See Headrick v. Headrick, 845 So.2d 823 (Ala.Civ.App.2002) (holding that evidence supported custody award of three-year-old child to husband, despite the fact that wife had been child’s primary caretaker, when wife committed adultery and became pregnant with paramour’s child before she separated from husband); Graham v. Graham, 640 So.2d 968 (Ala.Civ.App.1994) (indicating that the trial court could consider, in making an initial custody determination, that the wife had committed adultery during the course of the marriage); and Bates v. Bates, 678 So.2d 1160, 1162 (Ala.Civ.App.1996) (stating that a trial court may consider, among other things, a parent’s character when deciding issue of custody).

III.

The mother maintains that the trial court’s judgment is flawed because it requires the father to exercise his custodial rights in the home of the paternal grandparents, who were nonparties to the divorce action. In support of that portion of its judgment, the trial court cited Scanlan v. Rowinsky, 611 So.2d 1092 (Ala.Civ.App.1992), a case in which the same trial judge awarded custody to a father, conditioned on his exercising custody in the home of the paternal grandmother. The mother contends that Scanlan is distinguishable because both sets of grandparents had been made parties to the divorce action in that case, whereas the paternal grandparents were not made parties to the divorce proceeding in this case. Accordingly, she argues, the trial court’s judgment in the present ease represents a de facto custody award to a nonparty that violated her right to due process of law.

Neither Scanlan nor the present case represents a custody award to a grandparent. In each case, the father alone was awarded custody. The party status of the grandmother in Scanlan is a distinction without a difference. That is so because neither the custody award in Scanlan nor the custody award in this case ordered a grandparent to do or refrain from doing anything. The conditional award in Scanlan was based on the father’s “military position and the uncertainty such position carries with it.” 611 So.2d at 1094. The conditional award in the present case was apparently based upon evidence indicating that the father was unavailable to care for the child between the hours of 5:00 a.m. when he left for work and 4:80-5:00 p.m. when he returned from work.

IV.

The mother contends that the custody award to the father cannot be upheld even under a best-interests standard. First, she says, the trial court erroneously rejected the option of awarding the parties joint custody. The trial court had an evi-dentiary basis to discount joint custody as a viable alternative because the parties had a past history of being unable to communicate with each other, see § 30-3-152(a)(2), Ala.Code 1975, and their residences were not in close geographic proximity to each other, see § 30-3-152(a)(5), Ala.Code 1975.

“Because this was an initial custody determination, where the parties are on equal footing and the trial court must base its decision on what it determines would be in the best interest of the child, our review is very limited.” Headrick, 845 So.2d at 825 (citation omitted). When the trial court makes no specific findings of fact, an appellate court must assume that the trial court made the findings necessary to support its judgment, unless such findings would be clearly erroneous, Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996), and the appellate court will reverse the trial court’s judgment only if it is found to be plainly and palpably wrong, Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994). Based on the record before us, we cannot conclude that the trial court’s judgment was plainly and palpably wrong. “This court is not at liberty to set aside the judgment of the trial court merely because we might have decided differently had we been sitting as the trial judge.” Ethridge v. Ethridge, 360 So.2d 1005, 1008 (Ala.Civ.App.1978). “ ‘To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ” Perkins, 646 So.2d at 47 (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)).

The judgment of the Covington Circuit Court is affirmed.

AFFIRMED.

THOMAS, J., concurs.

BRYAN, J., concurs in the result, with writing, which THOMPSON, P.J., and MOORE, J., join.

BRYAN, Judge,

concurring in the result.

My review of the record in this case convinces me that the best interest of the child would have been served if D.M.P.C.P. had been allowed to retain physical custody of the child. However, as an appellate-court judge, my disagreement with the trial court’s decision “does not constitute a basis for ... reversal of the trial court which heard the evidence and observed the witnesses.” Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). Because I am constrained by the applicable standard of review, I concur in the result.

THOMPSON, P.J., and MOORE, J., concur.

      . The September 11, 2007, order states:
      “The [custody, support, and visitation] terms of this order, however, are only pen-dente lite in nature, and are, by mutual consent, not to be considered final. In that connection the Court reserves jurisdiction to hold a further hearing or hearings with respect to the matters set out below, and to then render the ultimate judgment thereon as the evidence may warrant. It will go forward and do so upon written motion of either party.”

      . In 2009, before the child was of school age, the father’s weekend visitation time extended from Friday at 3:15 p.m. to Monday at 5:00 p.m. The evidence indicated that the father had failed to return the child in time for him to begin kindergarten on Monday, August 24, 2009, and for several Mondays after that. The mother filed an emergency motion to modify the visitation schedule, and the parties subsequently agreed that the father’s weekend visitation time would end on Sunday evenings rather than on Monday afternoons.


author: PER CURIAM. THOMAS, Judge,

text:
    COLUMBIANA HEALTH AND REHABILITATION, LLC, et al. v. STATEWIDE HEALTH COORDINATING COUNCIL et al.
    2110719.
    Court of Civil Appeals of Alabama.
    Jan. 11, 2013.
    Rehearing Denied March 29, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1120810.

      Loree J. Skelton, Birmingham; Walter R. Byars of Steiner, Crum & Byars, Montgomery; P. Michael Cole of Wilmer & Lee, P.A., Athens; and Robert C. Lockwood of Wilmer & Lee, P.A., Huntsville, for appellants.
    Mark D. Wilkerson and Dana H. Bill-ingsley of Wilkerson & Bryan, P.C., Montgomery, for Statewide Health Coordinating Council; State Health Planning and Development Agency; Alva Lambert, in his official capacity as executive director of the Alabama State Health Planning and Development Agency; Mary Holcomb, in her official capacity as chairman of the Statewide Health Coordinating Council; and Robert Bentley, in his official capacity as Governor of the State of Alabama, for appellees.
    Colin H. Luke, Carey B. McRae, Jennifer H. Clark, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham; and James A. Byram, Jr., of Balch & Bingham LLP, Montgomery, for appellee HealthSouth of Alabama, LLC.
   PER CURIAM.

In March 2011, HealthSouth of Alabama, L.L.C. (“HealthSouth”), petitioned the Statewide Health Coordinating Council (“the Council”) for an adjustment to the State Health Plan. The Council is a State agency that prepares, reviews, revises, and approves the State Health Plan. § 22-4-8(b)(2), Ala.Code 1975; see Ex parte Traylor Nursing Home, Inc., 543 So.2d 1179, 1184-86 (Ala.1988) (stating that the Council is an agency). The State Health Plan is a comprehensive plan that “providefs] for the development of health programs and resources to assure that quality health services will be available and accessible in a manner which assures continuity of care, at reasonable costs, for all residents of the state.” § 22-21-260(13), Ala.Code 1975. The State Health Plan is a part of the Alabama Administrative Code, see Rule 410-2-1 et seq., Ala. Admin. Code (State Health Planning and Development Agency); all the administrative rules discussed in this opinion are contained in the State Health Plan.

HealthSouth sought the adjustment to the State Health Plan to indicate the need for 17 inpatient-rehabilitation beds in Shelby County. At the time, there were no inpatient-rehabilitation beds in Shelby County. HealthSouth sought the adjustment as a necessary step in its plan to later obtain certification to build an inpatient-rehabilitation facility in Shelby County. The proposed adjustment was opposed by Columbiana Health and Rehabilitation, LLC, a nursing-and-rehabilitation entity; 25 other nursing-and-rehabilitation entities; and the Healthcare Authority of Cull-man County d/b/a Cullman Regional Medical Center (collectively “the nursing homes”).

Following a public hearing, the Council approved the proposed adjustment to the State Health Plan, and Governor Robert Bentley approved the adjustment on September 15, 2011. On October 15, 2011, the nursing homes sued, in the Montgomery Circuit Court, the Council; the State Health Planning and Development Agency (“SHPDA”); Alva Lambert, the director of SHPDA; Mary Holcomb, the chair of the Council; and Governor Bentley. The nursing homes alleged that the adjustment had been improperly adopted, and they sought declaratory and injunctive relief or, alternatively, a writ of mandamus or cer-tiorari. HealthSouth intervened as a defendant. Following a trial, the circuit court entered a judgment in favor of the defendants, and the nursing homes appealed to this court.

On appeal, the nursing homes first argue that the Council erred in adopting the adjustment because, they say, the adjustment is actually an improperly adopted “rule” under the Aabama Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975 (“the AAPA”). It is undisputed that the Council did not adopt the adjustment pursuant to the rulemaking procedures of the AAPA. Thus, if the adjustment is in substance actually a rule under the AAPA, the Council erred by adopting it without following the rulemaking procedures of the AAPA. See § 41-22-5, Aa. Code 1975 (discussing the rulemaking procedures of the AAPA); § 41-22-20(k)(l), Ala.Code 1975 (stating that an agency action made in violation of a statutory provision is subject to reversal upon judicial review).

In pertinent part, the AAPA defines a “rule” as “[e]ach agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy.” § 41-22-3(9), Ala.Code 1975. The “amendment” of a rule is also considered a rule under the AAPA. Id. Similarly, the State Health Plan states that an “amendment” to a rule in that plan is subject to the AAPA’s rulemaking procedures. Rule 410-2-5-.04(2)(c), Ala. Admin. Code (SHPDA). The nursing homes argue that the adjustment is a rule because, they say, it amended Rule 410-2-4-.08(3), Ala. Admin. Code (SHPDA) (“the inpatient-rehabilitation rule”), which concerns the need methodology for inpatient-rehabilitation beds. That rule establishes a “region” as the planning area regarding inpatient-rehabilitation beds, stating that there is a need for 12 inpatient-rehabilitation beds per 100,000 people for each region. Under the inpatient-rehabilitation rule, there are seven regions, and each region consists of several counties. Shelby County, the subject of the adjustment in this case, is located in Region III. The nursing homes argue that the adjustment, which indicated the need for 17 inpatient-rehabilitation beds in Shelby County, amended the inpatient-rehabilitation rule by changing the planning area from the region — Region III — to the county — Shelby County.

The Council adopted the adjustment pursuant to Rule 410-2-5-.04(2)(a), Ala. Admin. Code (SHPDA) (“the adjustment rule”). In pertinent part, the adjustment rule defines an “adjustment” to the State Health Plan as follows:

“(a) Plan Adjustment — In addition to such other criteria that may be set out in the [State Health Plan], a requested modification or exception, to the [State Health Plan], of limited duration, to permit additional facilities, beds, services, or equipment to address circumstances and meet the identified needs of a specific county, or part thereof, or another specific planning region that is less than statewide and identified in the State Health Plan.”

The nursing homes interpret the adjustment rule as prohibiting a county-based adjustment regarding inpatient-rehabilitation services; the nursing homes emphasize that the inpatient-rehabilitation rule establishes a “region ” as the planning area for such services. The nursing homes argue that the Council’s county-based adjustment in fact impermissibly changed the planning area from the region to the county. We disagree. “‘[Language used in an administrative regulation should be given its natural, plain, ordinary, and commonly understood meaning, just as language in a statute.’” Ex parte Wilbanks Health Care Servs., Inc., 986 So.2d 422, 427 (Ala.2007) (quoting Alabama Medicaid Agency v. Beverly Enters., 521 So.2d 1329, 1332 (Ala.Civ.App.1987)). The adjustment rule expressly provides that the Council may make adjustments to the State Health Plan to meet the identified needs of a “specific county.” The rule does not state that services planned by region are subject to adjustments only on a regional basis. The adjustment in this case does not amend the inpatient-rehabilitation rule; the region remains the planning area, subject to adjustments made under the adjustment rule.

This court addressed a similar situation in Health Care Authority of Athens v. Statewide Health Coordinating Council, 988 So.2d 574 (Ala.Civ.App.2008) (plurality opinion). Athens involved a challenge to an adjustment to the State Health Plan indicating the need for 60 acute-care hospital beds in the City of Madison. The State Health Plan provided for the planning of acute-care hospital services on a countywide basis. The opponents of the adjustment in Athens argued that adjustments concerning acute-care beds must be made on a county-wide basis, i. e., that such adjustments could not be made regarding only a city. Thus, like the situation in this case, Athens concerned the issue whether an adjustment may be made to an area smaller than the planning area designated by the State Health Plan.

In Athens, this court noted that the adjustment rule specifically allows for an adjustment to meet the needs of “a specific county, or part thereof.” 988 So.2d at 580-81. Thus, the court concluded that the Council may adopt an adjustment concerning a city even when the planning area for a particular type of service is the county. Similarly, in this case, the Council may adopt an adjustment concerning the county — an area specifically mentioned in the adjustment rule — although the planning area for inpatient-rehabilitation services is the region.

Moreover, ‘“the interpretation of an agency regulation by the promulgating agency carries “ ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ ” ’ ” Fraternal Order of Police, Lodge No. 64 v. Personnel Bd. of Jefferson Cnty., 103 So.3d 17, 25 (Ala.2012) (quoting Brunson Constr. & Envtl. Servs., Inc. v. City of Prichard, 664 So.2d 885, 890 (Ala.1995), quoting in turn other cases); see also Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994) (stating that “an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation”). The nursing homes argue that the Council did not actually interpret the adjustment rule, and thus, they argue, there is no interpretation that is due deference. The nursing homes argue that the Council’s “interpretation” of the adjustment rule is simply an after-the-fact litigation position. We disagree. Whether the Council may make a county-wide adjustment despite a region-based planning methodology was an issue debated before the Council at the hearing in this case. It is evident that the Council interpreted the adjustment rule to allow for an adjustment concerning an area smaller than the region. The Council’s interpretation is consistent with the plain language of the adjustment rule and is due deference.

The nursing homes also argue that the adjustment in this case is a rule because, they say, the Council changed its interpretation of Rule 410-2^4-.08(4)(a), Ala. Admin. Code (SHPDA) (“the 75% occupancy rule”). The 75% occupancy rule provides that “[r]egional occupancy for the most recent reporting year should be at least 75% before the [Council] gives consideration to any requests for plan adjustments for additional [inpatient-rehabilitation] bed capacity.” In this case, the regional occupancy for inpatient-rehabilitation beds was below the 75% standard. In adopting the adjustment, the Council evidently interpreted the 75% occupancy rule as creating a nonmandatory guideline. See, e.g., Lambert v. Austin Indus., Inc., 544 F.3d 1192, 1196-97 (11th Cir. 2008) (interpreting the word “should” to be permissive and not mandatory). The nursing homes do not argue that this interpretation is incorrect; rather; they argue that the Council, before adopting this adjustment, had historically interpreted the 75% occupancy rule as mandatory. Relying on Hartford Healthcare, Inc. v. Williams, 751 So.2d 16 (Ala.Civ.App.1999), the nursing homes argue that the Council’s alleged change in interpretation of the 75% occupancy rule constituted an improper adoption of a rule. Hartford provides that “[wjhen an administrative agency substantially changes its interpretation of its regulation and the new interpretation ‘substantially affects the legal rights of, or procedures available to, the public or any segment thereof,’ the administrative agency is bound to comply with formal AAPA rulemaking procedures.” 751 So.2d at 22 (quoting § 41-22-3(9)(c)).

The record on appeal does not indicate that the Council had previously interpreted the 75% occupancy rule as mandatory but changed its interpretation in this case to treat the rule as permissive. In support of their argument, the nursing homes cite the language of the adjustment itself. The adjustment, which is found in Rule 410-2-4-.08(5) (SHPDA), provides: “Notwithstanding anything to the contrary, recognizing the need for an inpatient rehabilitation hospital in Shelby County, the [Council], through the adjustment process in September of 2011, adjusted the planning policy to recognize the need for 17 additional rehabilitation beds to be located in Shelby County.” (Emphasis added.) The nursing homes seem to argue that the Council admitted that it changed its interpretation of the 75% occupancy rule by stating that it “adjusted the planning policy.” However, we view this phrase as simply a general description that there was an adjustment made under the adjustment rule. We do not view it as an “admission” that the Council had previously viewed the 75% occupancy standard as mandatory.

Insofar as the nursing homes argue that the Council changed its interpretation of the adjustment rule to permit a county-based adjustment regarding inpatient-rehabilitation services, thereby requiring it to comply with rulemaking procedures, as held in Hartford, that argument is unpersuasive. The inpatient-rehabilitation rule, which recognizes a region as the planning area for inpatient-rehabilitation services, was adopted in 1998. Subsequently, before making the adjustment in this case, it appears that the Council made three adjustments to the State Health Plan concerning inpatient-rehabilitation services. The Council made such adjustments on a regional basis in 2003 and 2009. Regarding the third case, the parties dispute whether the Council, in 2005, made an adjustment to a particular region or to Houston County. On its face, that adjustment concerns Houston County, but the proceedings in that case indicate that the Council actually approved an adjustment regarding the region, not the county. Regardless, the nursing homes have not established that the Council had interpreted the adjustment rule to allow for only region-based adjustments in inpatient-rehabilitation cases but changed the interpretation in this case. Again, Athens is instructive. In Athens, the opponents of the adjustment argued that the Council had changed its interpretation by adopting the adjustment on a city-wide basis rather than on a county-wide basis. The plurality opinion rejected that argument, noting that “[t]he record does not indicate that the Council has ever interpreted the State Health Plan to allow for only an acute-care-bed-need adjustment on a county-wide basis.” 988 So.2d at 581. Similarly, in this case, there is no indication that the Council had previously interpreted the adjustment rule to bar inpatient-rehabilitation-services adjustments on a county-wide basis. Thus, the record does not indicate that the Council has changed its interpretation.

The nursing homes also argue that the Council acted arbitrarily and capriciously by adopting the adjustment. Under the AAPA, the Council’s decision is subject to reversal if it is arbitrary or capricious, among other criteria. § 41-22-20(k)(7), Ala.Code 1975. In arguing that the Council acted arbitrarily and capriciously, the nursing homes cite certain comments made by four members of the Council at the hearing on whether to adopt the proposed adjustment. Of the four members, one member seemed to doubt the Council’s authority to make the adjustment on a county-wide basis; one member opined that the Council did not have such authority; one member seemed to suggest that the adjustment would be proper and beneficial while also acknowledging the regional planning methodology; and one member cryptically stated that the Council should be “consistent” and opined, without explanation, that the Council had recently acted in contravention to the State Health Plan. The nursing homes argue that those comments indicate that the Council knowingly violated the State Health Plan by adopting the adjustment and, therefore, acted arbitrarily and capriciously. We disagree. We have established that the adjustment rule found in the State Health Plan allowed for the adjustment in this case. Thus, we fail to see the relevance of the comments of the Council members debating the authority to make the adjustment. Further, we note that the Council voted 11-7 to adopt the adjustment. There is no indication that the comments of a minority of the Council at the hearing somehow represent the opinions of the majority. Thus, the nursing homes’ argument that the Council knowingly violated the State Health Plan is based on a unsupported factual allegation.

The nursing homes also argue that the Council acted beyond its statutory authority in adopting the adjustment. The text of the adjustment indicates that the Council, “recognizing the need for an inpatient rehabilitation hospital in Shelby County,” made the adjustment “to recognize the need for 17 additional rehabilitation beds to be located in Shelby County.” The nursing homes argue that the Council does not have that authority to recognize the need for a rehabilitation hospital in Shelby County. The nursing homes contend that only SHPDA has the authority to make such a determination. However, § 22-4-8(b)(2) provides that the Council is to “[pjrepare, review, and revise as necessary” the State Health Plan. (Emphasis added.) Of course, before the Council made the adjustment, the State Health Plan addressed the need for inpatient-rehabilitation services in Alabama. By making the adjustment, the Council, pursuant to its statutory authority, simply revised the State Health Plan to reflect the need for inpatient-rehabilitation services in Shelby County. The Council did not exceed its statutory authority in making the adjustment.

Finally, the nursing homes ask this court to overrule Montgomery Rehabilitation Hospital, Inc. v. State Health Planning Agency, 610 So.2d 403 (Ala.Civ.App.1992) “to the extent necessary in this case.” In Montgomery Rehabilitation, the Council revised the State Health Plan to indicate the need for 26 rehabilitation beds in the Dothan area. The Council maintained that the revision was an adjustment to the State Health Plan, but opposing parties argued that the revision was a rule under the AAPA. This court concluded that the revision was not a rule on two grounds: (1) the revision was not “generally applicable” because it was “limited in geographic scope [to the Dothan area] and [was] not applicable to all potential and existing rehabilitation service providers statewide” and (2) the revision “was contemplated in the language of the 1988-1992 [State Health Plan] as it was originally adopted.” 610 So.2d at 407.

The nursing homes ask this court to overrule Montgomery Rehabilitation, if necessary, insofar as it expressed a geographic-scope standard in its analysis, ie., the first ground upon which the decision was based. However, the nursing homes further argue that the geographic-scope standard is dicta that, regardless, was modified by this court’s decision in Hartford, supra. Assuming, without deciding, that the geographic-scope standard in Montgomery Rehabilitation is dicta that was modified in Hartford, we see no reason to consider overruling Montgomery Rehabilitation. As indicated above, the Council’s adjustment is due to be upheld on the basis of the plain language of the adjustment rule, the deference due the Council’s interpretation of that rule, Hartford, and Athens. We note that the circuit court cited Montgomery Rehabilitation in upholding the adjustment. However, the circuit court also relied on the plain language of the rehabilitation rule, the deference due the Council’s interpretation of that rule, and this court’s decision in Athens. Insofar as the circuit court relied on the alleged dicta in Montgomery Rehabilitation, the circuit court’s judgment upholding the adjustment is due to be affirmed on other grounds.

We affirm the circuit court’s judgment upholding the Council’s adjustment.

AFFIRMED.

PITTMAN, BRYAN, and MOORE, JJ„ concur.

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

THOMAS, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I respectfully dissent. I agree with the nursing homes that the “adjustment” to the State Health Plan (“SHP”) made in this case is actually an “amendment” to the SHP and, thus, that it was subject to the rule-making procedures of the Alabama Administrative Procedure Act. See Health Care Auth. of Athens v. Statewide Health Coordinating Council, 988 So.2d 574, 590 (Ala.Civ.App.2008) (Thomas, J., dissenting).

      . The other nursing-and-rehabilitation entities are Shelby Ridge Acquisition Corporation d/b/a Shelby Ridge Nursing Home; GGNSC Bessemer, LLC, d/b/a Golden Living Meado-wood; GGNSC Birmingham, LLC, d/b/a Golden Living Riverchase; GGNSC Huey-town, LLC, d/b/a Golden Living Hueytown; Civic Center Health and Rehabilitation, LLC; South Health and Rehabilitation, LLC; Oak Knoll Health and Rehabilitation, LLC; North-way Health and Rehabilitation, LLC; South Haven Health and Rehabilitation, LLC; Cor-dova Health and Rehabilitation, LLC; Legacy Health and Rehabilitation of Pleasant Grove, LLC; Talladega Healthcare Center, Inc; American Health Corporation d/b/a Terrance Oaks Care and Rehabilitation Center; American Health Corporation d/b/a Oak Trace Care and Rehabilitation Center; Prime Health Enterprises, LLC, d/b/a Goodwater Healthcare Center, LLC; Preferred Health Holding II d/b/a Ridgewood Healthcare Center; USA Healthcare d/b/a Cullman, LLC; USA Healthcare d/b/a LTC, LLC; USA Healthcare d/b/a Woodland Village, L.L.C.; Haleyville Health Care Center, LLC; Hatley Health Care, Inc.; Ball Health Care Services d/b/a Cherry Hill; Ball Health Care Services d/b/a Eastview Healthcare; Ball Health Care Services d/b/a Arlington Rehabilitation & Healthcare Center; and GGNSC Trussville, LLC, d/b/a Golden Living Trussville.


author: PITTMAN, Judge.

text:
    COCINA SUPERIOR, LLC v. JEFFERSON COUNTY DEPARTMENT OF REVENUE.
    2110807.
    Court of Civil Appeals of Alabama.
    March 15, 2013.
    Rehearing Denied June 7, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121101.

      James S. Ward of Ward & Wilson, L.L.C., Birmingham, for appellant.
    A. Allen Ramsey, Irondale, for appellee.
   PITTMAN, Judge.

Cocina Superior, LLC (“the taxpayer”), which owns a restaurant in Birmingham that sells alcoholic beverages to the public, appealed to the Jefferson Circuit Court from two final assessments of the Jefferson County Department of Revenue (“the Department”), pursuant to § 40-2A-7(b)(5)b.2.(iii) Ala.Code 1975, a part of the Alabama Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, § 40-2A-1 et seq., Ala.Code 1975. The assessments reflected that, for the years 2008-2010, the taxpayer owed $72,911.74 pursuant to the “Alabama Liquor Tax,” Act No. 388, Ala. Acts 1965, as amended by Act No. 747, Ala. Acts 1979, and $33,910.07 pursuant to the “Alabama Additional Sales Tax [of 3%] on Alcoholic Beverages,” Act No. 545, Ala. Acts 2001 (effective May 18, 2001).

Section 2 of Act No. 747, Ala. Acts 1979, amended § 3 of Act No. 388, Ala. Acts 1965, and levied a tax on “[wjhiskey, gin, brandy, rum, vodka, cocktails, and all other alcoholic beverages except malt beverages, sold, distributed, delivered, stored, or taken out of storage within the county....” On March 25, 1986, the Jefferson County Commission adopted a resolution that states, in pertinent part:

“There is hereby levied, fixed, and ordained a license tax on each person selling, distributing, delivering, storing or withdrawing from storage for retail within the County of 6% of the gross receipts realized by such person from the distribution, delivery, sale, storage or withdrawal from storage in the County of whiskey, gin, brandy, rum, vodka, cocktails, and all other alcoholic beverages and drinks containing alcohol except malt beverages, wine, and other fermented beverages, sold or distributed, stored or taken out of storage in the county.”

(Emphasis added.) Section 3 of Act No. 545, Ala. Acts 2001, provides, in pertinent part:

“Notwithstanding any provision of law and pursuant to Section 104 of the Constitution of Alabama of 1901, there is imposed, in addition to all other taxes, including, but not limited to, municipal gross receipts license taxes, a three percent sales tax on alcoholic beverages sold from restaurants that are licensed by the Alcoholic Beverage Control Board.”

(Emphasis added.)

In the circuit court, the parties filed cross-motions for a summary judgment, agreeing that there were no disputed issues of fact and that the issue to be resolved was a question of law for the circuit court. The taxpayer argued that the applicable legislation called for the imposition of a tax on the gross receipts derived from the sale of “alcoholic beverages,” but, it said, the Department’s assessments were erroneously based upon the taxpayer’s gross sales of mixed drinks that were composed of both alcoholic beverages and nonalcoholic mixing agents such as colas, sodas, and juices. The taxpayer asserted that its internal policy and procedure dictated that each mixed drink contain 1.25 ounces of alcohol, and, it maintained, the taxes were due only on the alcohol portion of the mixed drinks, exclusive of any nonalcoholic mixing agent.

The taxpayer also argued that the Department’s assessments denied it due process and equal protection of the law because, it said, its restaurant is a more upscale establishment with higher overhead expenses than many other facilities that sell alcoholic beverages and it is, therefore, required to charge higher prices and, consequently, pay more taxes for the mixed drinks it sells.

The Department argued that the plain meaning of “alcoholic beverage” is a beverage containing alcohol, irrespective of whether the beverage also contains nonalcoholic mixing agents. In support of that argument, the Department cited the inclusion of the phrase “cocktails, and all other alcoholic beverages and drinks containing alcohol,” in the Jefferson County Commission’s resolution promulgated pursuant to Act No. 747, which inclusion, the Department said, indicates an intent to consider cocktails and mixed drinks as “alcoholic beverages.” The Department also cited the definition of “alcoholic beverages” in Title 28, Chapter 3 of the Alabama Code 1975, which relates to the “regulation and control of alcoholic beverages in wet counties,” i.e., counties in which the sale of alcoholic beverages is permitted. Section 28-3-1, Ala.Code 1975, provides, in pertinent part:

“The following words or phrases, whenever they appear in this chapter, and in Alcoholic Beverage Licensing Code, being Act No. 80-529, Acts of Alabama, 1980, as amended, appearing as Chapter 3A, Title 28, as amended, and the Alabama Table Wine Act, being Act 80-382, Acts of Alabama 1980, as amended, appearing as Chapter 7, Title 28, as amended, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section:
“(1) Alcoholic beverages. Any alcoholic, spirituous, vinous, fermented, or other alcoholic beverage, or combination of liquors and mixed liquor, a part of which is spirituous, vinous, fermented, or otherwise alcoholic, and all drinks or drinkable liquids, preparations or mixtures intended for beverage purposes, which contain one-half of one percent or more of alcohol by volume, and shall include liquor, beer, and wine.”

(Emphasis added.)

On May 6, 2012, the circuit court entered a partial summary judgment in favor of the Department on the issue of the taxpayer’s liability to pay the assessments. The circuit court stated:

“[The taxpayer] argues that the County has no right to impose the tax on the non-alcoholic ‘mixing agents’ which are mixed with the alcohol to create cocktails and other mixed drinks. It says that the taxes should be on only the 1.25 ounces of alcohol contained in said drinks.
“The Court disagrees. 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. IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).
“The Court must presume that the legislature knew the exact meaning of the words it used in the statute. Our representatives certainly knew the meaning of ‘cocktails, and all other alcoholic beverages and drinks containing alcohol.’ That is what they taxed, and not just the alcohol contained within such drinks. While the language in the second statute is not as specific, it clearly is based upon the first statute and the same ruling must apply to both.
“The taxpayer’s next argument is that the assessments violate its constitutional rights to due process and equal protection. It says that other restaurants and bars can sell drinks for less and that it would be unfair to tax [the taxpayer] on the higher priced drink. Under the relevant statute, [the taxpayer] is treated the same as other sellers of alcoholic drinks. They are all charged sales tax on the basis of gross receipts from the retail sale of alcoholic beverages. This is not unfair and certainly does not violate [the taxpayer’s] rights to due process or equal protection, under either the Constitution of the State of Alabama or of the United States.”

Following the Department’s recalculation of past-due taxes, penalties, and interest owed by the taxpayer for a time within the applicable statutory limitations period, the circuit court entered a final judgment on May 8, 2012, determining that the taxpayer owed $99,876.01. The taxpayer timely appealed.

We review a summary judgment de novo, applying the same standard of review as the trial court applied. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). In addition, the issues raised by the taxpayer present questions of law for which our review is de novo. Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala.2010).

“ ‘In determining the meaning of a statute, [trial and appellate courts] look[] to the plain meaning of the words as written by the legislature. As [our supreme court has] said:
‘ “ < “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.”’
‘Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992))_ [0]nly if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).
“DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-77 (Ala.1998).2
“ 2As explained in DeKalb County LP Gas, supra, this Court’s application of the plain-meaning rule is guided by Art. Ill, § 42, of the Alabama Constitution of 1901, which provides for the separation of powers between three departments of state government. See generally Marc James Ayers, Unpacking Alabama’s Plain-Meaning Rule of Statutory Interpretation, 67 Ala. Law. 31, 32 (Jan.2006).”

Munnerlyn v. Alabama Dep’t of Corr., 946 So.2d 436, 438-39 (Ala.2006). The circuit court correctly held that the plain meaning of “alcoholic beverage” is a beverage containing alcohol.

The circuit court also correctly held that the Department’s assessments did not violate the taxpayer’s right to due process or equal protection of the law. Every establishment that sells a drink containing alcohol is treated the same: each pays a gross-receipts tax amounting to six percent of its sales of such drinks. The fact that one purveyor charges more for its mixed drinks — and thereby pays more tax in an absolute sense — is a consequence of that purveyor’s pricing policy (a matter solely within the control of the purveyor) and not an unfair attribute of the system of taxation, which taxes all purveyors at the same tax rate. See City of Birmingham v. Stacy Williams Co., 356 So.2d 608, 611 (Ala.1978) (“[T]he class composed of wholesale tobacco merchants is not denied equal protection of laws because the class as a whole is treated fairly alike; no member of the class is allowed to deduct the sales tax on tobacco ... from its gross receipts.... ”).

The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ„ concur.