text:
    James Phillip FOSTER, as trustee, and Janie W. Foster, as sole beneficiary, of the James D. Foster Family Trust v. HACIENDA NIRVANA, INC.
    1070581.
    Supreme Court of Alabama.
    Sept. 18, 2009.

      Don F. Wiginton of Wiginton & Wigin-ton, Birmingham, for appellants.
    Clark R. Hammond, William D. Jones III, and Lindan J. Hill of Johnston Barton Proctor & Rose LLP, Birmingham, for appellee.
   MURDOCK, Justice.

James Phillip Foster, as trustee, and Janie W. Foster, as sole beneficiary, of the James D. Foster Family Trust (“the Fosters”), appeal from an order of the Jefferson Circuit Court dismissing as beyond the applicable statute of limitations their complaint against Hacienda Nirvana, Inc. (“Hacienda”), based on Hacienda’s failure to pay on a promissory note. We affirm.

I. Facts and Procedural History

Janie W. Foster, the widow of James D. Foster and the personal representative of his estate, agreed to sell her late husband’s herd of Peruvian Paso horses to Hacienda. On February 3, 1993, the parties executed a purchase agreement for the horses. On the same date, along with the purchase agreement, Janie Foster and Hacienda executed a document entitled “Promissory Note,” in which Hacienda promised to pay Janie Foster $200,000 for the horses by the final due date of February 1, 1999 (“the promissory note”). The promissory note provided, in pertinent part:

“For the value received, Hacienda Nirvana, Inc. (‘Maker’)[,] who reside[s] at P.O. Box 617, Selma, Alabama 36702, promises to pay to the order of the Estate of James D. Foster (‘Payee’), who resides at 1818 Hummingbird Lane, Birmingham, Alabama 35226, the sum of Two Hundred Thousand Dollars ($200,-000.00) with interest only from August 1, 1993, through December 31, 1993, which will be payable on the first of each month commencing on August 1, 1993 with a payment of $1,333.33 and payable on the first day of each month thereafter through December 1, 1993. The unpaid principal and accrued interest shall be payable in monthly installments of $4,000.00 in the legal currency of the United States of America, beginning on January 1, 1994, and continuing until February 1, 1999 (the ‘due date’), at which time the remaining unpaid principal and interest shall be due in full. All payments shall be applied first in payment of accrued interest and any remainder in payment of principal. An amortization table and pay schedule is listed as ‘Attachment A.’
“Maker shall have the right to make advance payments to reduce the principal of this note.
“Maker hereby waives all right of exemption under the Constitution and Laws of Alabama, and agrees to pay the cost of collection, including a reasonable attorney’s fee, if obligation is not paid in accordance with the terms of this note.
“Demand, protest and notice of protest, and all requirements necessary to hold them liable, are hereby waived by the Maker.
“This note is given, executed and delivered under my hand and seal this 3rd day of February, 1993.”

The parties’ signatures are contained below the statement that the note “is given, executed and delivered under my hand and seal this 3rd day of February, 1993,” and next to each signature is the abbreviation “L.S.”

James D. Foster’s will established a testamentary trust that named his son James Phillip Foster (“Foster”) as the trustee and Janie W. Foster as the sole beneficiary of the trust. In her capacity as the personal representative of her husband’s estate, Janie W. Foster assigned the promissory note from Hacienda to the trust.

Hacienda admits that it started missing payments on the promissory note in 1994. It made several payments in 1995 and 1996, but it made no payments after 1996. The note did not contain an acceleration clause, so the note could not be called sooner than the due date of February 1, 1999. On November 18, 2005, six years and nine months after the note’s due date, the Fosters filed an action in Jefferson Circuit Court against Hacienda based on its failure to pay the note in full.

The action was tried without a jury on July 16, 2007. The trial court entered an order on August 22, 2007, determining that Hacienda had “failed to make an overwhelming number of payments” and assessed preliminary damages against Hacienda, basing the amount in part on figures provided in the purchase agreement. On October 3, 2007, the trial court entered another order asking the parties to brief the issue of the applicable statute of limitations on the Fosters’ action. Thereafter, on October 23, 2007, the trial court entered a final order in which it concluded that the promissory note was a negotiable instrument governed by Article 3 of Alabama’s Uniform Commercial Code. The trial court noted that § 7-3-118, Ala.Code 1975, establishes a six-year statute of limitations for negotiable instruments. The trial court thus concluded that “ § 7-3-118 bars any claim on the note,” and it dismissed the Fosters’ claim against Hacienda on the promissory note.

The Fosters moved to alter, amend, or vacate the judgment, but the trial court denied their motion. The Fosters appeal the trial court’s determination that the six-year statute of limitations applies to their claim on the promissory note.

II. Standard, of Revieiv

The trial court’s resolution of the issue involved determining the nature of the promissory note based on the language of the note. “If a contract can be interpreted without going beyond the four corners of the document, the trial court’s resolution of the question of law is accorded no presumption of correctness, and this Court’s review is de novo.” Exxon Mobil Corp. v. Alabama Dep’t of Conservation & Natural Res., 986 So.2d 1093, 1101 (Ala. 2007). Its determination also turned on the interpretation and applicability of statutory provisions. “The trial court’s interpretation of [a statute] involves a question of law; it is reviewed de novo by an appellate court, without any presumption of correctness.” Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala. 2001).

III. Analysis

Section 7-3-118(a), Ala.Code 1975, provides that

“[e]xcept as provided in subsection (e),[] an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”

The trial court concluded that the promissory note was a negotiable instrument and that § 7-3-118 provided the applicable statute of limitations for the Fosters’ action on the promissory note.

Section 6-2-33, Ala.Code 1975, states that “[a]ctions founded upon any contract or writing under seal” must be commenced within 10 years. The Fosters contend that the promissory note is a contract under seal and that, therefore, the applicable statute of limitations for his action is 10 years rather than 6 years as the trial court concluded. The Fosters base their argument squarely on the facts that the promissory note provides that it was “executed and delivered under [Hacienda’s] hand and seal this 3rd day of February 1993,” and that the abbreviation “L.S.” appears next to the parties’ signatures.

The Fosters’ argument assumes that the 10-year statute of limitations must apply here if the promissory note is a contract under seal. Section § 6-2-2(e), Ala.Code 1975, provides, however, that “[t]his chapter [§ 6-2-1 et seq., Ala.Code 1975,] shall not apply to negotiable instruments which are governed by Sections 7-3-118 and 7-4-111.” Thus, if the promissory note is a negotiable instrument (see discussion, infra ), § 6-2-2(e) clearly mandates that the six-year statute of limitations of § 7-3-118 must apply to the Fosters’ claim on the promissory note, regardless of whether the note is also a contract under seal.

The Fosters also contend that § 6-2-2(e) does not apply in this case because the promissory note was executed on February 3, 1993, and § 6-2-2(e) became effective on January 1, 1996. Statutes generally are not applied retrospectively, the Fosters observe, and, therefore, they conclude, § 6-2-2(e) cannot apply to their action. In making this argument, however, the Fosters misunderstand the nature of a statute of limitations. As this Court explained in Street v. City of Anniston, 381 So.2d 26 (Ala.1980):

“It is true as a general rule that statutes will not be construed to have retrospective effect unless the language of the statute expressly indicates the legislature so intended. ‘Remedial statutes,’ or those relating to remedies or modes of procedure, which do not create new rights or take away vested ones, are not within the legal conception of ‘retrospective laws,’ however, and do operate retrospectively, in the absence of language clearly showing a contrary intention. A statute of limitations has generally been viewed as a remedial statute, and the statute of limitations in effect at the time the suit is filed, as opposed to one in effect at the time of the accrual of the cause of action, has been held to apply unless the later statute clearly states the contrary. This is true whether the later statute extends or limits the time within which a cause of action may be brought, for it has frequently been held that the legislature can establish a new limitation where none existed before and make it applicable to a cause of action against which there was no such statute when the right was created, and it may also so change an existing statute and shorten periods of limitation, provided a reasonable time is allowed for the action to be brought.”

381 So.2d at 29 (citations omitted and emphasis added). Thus, unless the language of § 7-3-118 indicates that it should not be applied retrospectively, it applies to all actions concerning negotiable instruments that are filed after its effective date of January 1,1996.

The plaintiff in Barrett v. McPherson, 990 So.2d 430 (Ala.Civ.App.2008), made the same argument to the Court of Civil Appeals that the Fosters make here, and after noting and quoting our decision in Street, that court correctly observed:

“Subsection (e) of § 6-2-2, which was enacted as § 4 of Act No. 95-668, Ala. Acts 1995, and which became effective on the same date as § 7-3-118, reflects the legislature’s intent; the preamble to Act No. 95-668 indicates that the legislature intended to amend § 6-2-2 ‘regarding the applicability of the chapter concerning limitations of actions to specify the chapter shall not apply to certain negotiable instruments.’ Clearly, the legislature intended that § 7-3-118 apply to actions filed after January 1, 1996.”

990 So.2d at 434. It is undisputed that the Fosters filed their action on November 18, 2005, well after the effective date of § 7-3-118. Consequently, if the promissory note is a negotiable instrument, the six-year statute of limitations provided in § 7-3-118 applies to the Fosters’ cause of action.

With certain exceptions not applicable here, § 7-3-104(a), Ala.Code 1975, provides that a “negotiable instrument” is

“an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
“(1) Is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
“(2) Is payable on demand or at a definite time; and
“(3) Does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.”

§ 7-3-104(a), Ala.Code 1975.

We observe that the note in this case was a promise to pay “a fixed amount.” The principal amount owed, $200,000, is recited on the face of the note. The face of the note also provides for interest-only payments of $1,838.33 per month from August 1, 1993, through December 31, 1993, and for payments of principal and interest of $4,000 thereafter until February 1,1999, at which time, the note states, any unpaid principal and interest will be due. The amortization schedule constituting “Attachment A” to the note reflects an interest rate of eight percent and shows a schedule of payments through March 1, 1997. As the trial court further observed:

“The note signed by [Hacienda] fits [the] criteria [of § 7-3-104(a) ]. It is payable ‘to the order of the Estate of James D. Foster....’ It is payable at definite times, with the final due date being identified as February 1, 1999. Absent from the note is any other ‘undertaking or instruction’ by [Hacienda] to do anything else in addition to the obligation to make payments. Finally, there is nothing in the note that explicitly declares that it is in any way non-negotiable.”

The Fosters contend that § 7 — 3—104(d), Ala. Code 1975, specifically exempts the promissory note from the definition of a negotiable instrument. That subsection provides that

“[a] promise or order other than a check is not an insinment if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this article.”

§ 7-3-104(d), Ala.Code 1975 (emphasis added). The Fosters contend that the statement on the promissory note that it was executed “under ... seal” constitutes a “conspicuous statement” that it is not a negotiable instrument.

The Fosters’ argument incorrectly assumes that a contract under seal cannot also be a negotiable instrument. Though that was true at one time, it is no longer the case.

“Prior to the adoption in this state of the Uniform Negotiable Instruments Law (Code 1907, §§ 4958-5149; Code 1923, §§ 9029-9222),[] this court had always recognized the distinctions impressed by the common law and the Statute of Anne on instruments given under seal, and, though a promise to pay money were in the exact form of a negotiable promissory note, it was held that its execution under the seal of the maker destroyed its character in law as a promissory note, and made of it an obligation legally different and distinct, a specialty, usually called a bill single or writing obligatory, carrying a conclusive presumption of a valid consideration for the obligation to pay, and not negotiable under the principles of the law merchant, or the provisions of the Statute of Anne, making promissory notes negotiable. ...
“The Uniform Negotiable Instruments Law (section 6. subd. [4]; Code 1907, § 4963; Code 1923, § 9034, subd. [4]) provides that the validity and negotiable character of an instrument are not affected by the fact that it bears a seal.
“So far as the substance and effect of the instrument is concerned, there remains no distinction between a sealed and an unsealed promissory note. The sealed note is no longer a specialty with peculiar incidents, but is in fact a negotiable promissory note ....”

Ex parte First Nat’l Bank of Ozark, 212 Ala. 274, 275, 102 So. 371, 371-72 (1924). In other words, simply because an instrument is a contract under seal does not mean it cannot be negotiable.

Moreover, the kind of “conspicuous statement” that § 7-3-104(d) contemplates is more specific than any of the language in the promissory note.

“Subsection (d) allows exclusion from Article 3 of a writing that would otherwise be an instrument under subsection (a) by a statement to the effect that the writing is not negotiable or is not governed by Article 3. For example, a promissory note can be stamped with the legend NOT NEGOTIABLE. The effect under subsection (d) is not only to negate the possibility of a holder in due course, but to prevent the writing from being a negotiable instrument for any purpose.”

Official Comment ¶ 3, § 7-3-104, Ala.Code 1975; see, e.g., Morgan v. Farmers & Merchants Bank, 856 So.2d 811, 817-18, 813 (Ala.2003) (stating that a certificate of deposit was not a “negotiable instrument” in part because it contained “a conspicuous statement that it was not negotiable,” namely, the caption “Money Market Certificates (Non-negotiable)”). The statement that the note was executed under seal was not sufficient to exempt it from the provisions of § 7-3-104(a).

Finally, the Fosters contend that the promissory note is governed by the purchase agreement, so, they argue, it cannot be a negotiable instrument. The Fosters observe that § 7-3-106, Ala.Code 1975, provides:

“(a) Except as provided in this section, for the purposes of Section 7-3-104(a), a promise or order is unconditional unless it states (i) an express condition to payment, (ii) that the promise or order is subject to or govern,ed by another writing, or (Hi) that rights or obligations with respect to the promise or order are stated in another writing. A reference to another writing does not of itself make the promise or order conditional.”

(Emphasis added.) The Fosters aver that the purchase agreement had to be consulted to establish the rights and obligations of each party, specifically with regard to the interest rate, what, if any, interest-only payments are contemplated, the payment schedule, the allocation of payments between principal and interest, the applicable late charges, and whether those charges are to be deemed liquidated damages, the borrower’s right to prepay without penalty, and the events of default. The Fosters argue that the promissory note was dependent upon the purchase agreement and, therefore, that the promissory note did not constitute an unconditional promise and, accordingly, was not a negotiable instrument.

We first note that it is not necessary to consult the purchase agreement to determine the interest rate, what interest-only payments are contemplated, and the payment schedule. The note, on its face, provides for interest-only payments of $1,333.33 per month from August 1, 1993, through December 31, 1993. Insofar as a payment schedule is concerned, the note states that payments of principal and accrued interest in monthly installments of $4,000 are to be paid beginning January 1, 1994, and ending February 1, 1999. The note then provides that all unpaid principal and interest shall be due in full on February 1, 1999. Further, an amortization schedule reflecting an annual interest rate of 8% and setting forth a schedule of payments through March 1, 1997, is attached to the note as “Attachment A.” In addition, the purchase agreement contains no allocation of payments as between principal and interest; such an allocation is, however, stated in the amortization schedule, at least through March 1, 1997, and, of course, may be computed mathematically beyond that date. We also note that § 7-3 — 106(b) provides that a reference in a note to another writing for a statement of rights regarding prepayment does not deprive the note of its unconditionality.

Moreover, the Fosters ignore the fact that § 7-3-106 explicitly states that “a promise or order is unconditional unless it states ... that the promise or order is subject to or governed by another writing ....” (Emphasis added.) “Negotiability is determined from the face, the four-corners, of the instrument without reference to extrinsic facts.” Holsonback v. First State Bank of Albertville, 394 So.2d 381, 383 (Ala.Civ.App.1980), cert. denied, 394 So.2d 384 (1981). The promissory note itself is devoid of any mention of the purchase agreement. Rather, the terms expressed within the four corners of the note itself obligate the maker of the note unconditionally to pay “fixed amounts” “to the order” of the estate of James D. Foster “at definite times” without other “undertakings or instructions” by the promisor. Because it contains all of the characteristics of a negotiable instrument as described in § 7-3~104(a) and it stands on its own without reliance on another document, the promissory note is a negotiable instrument.

As noted above, § 7-3-118, Ala.Code 1975, provides a six-year statute of limitations on claims concerning negotiable instruments. The Fosters filed their claim on the promissory note on November 18, 2005, six years and nine months after the final payment was due on the note. Accordingly, their claim was barred by the statute of limitations.

IV. Conclusion

The trial court properly determined that the promissory note was a negotiable instrument, and it correctly applied the six-year statute of limitations in § 7-3-118, Ala.Code 1975, to the Fosters’ claim on the promissory note. Therefore, the trial court’s judgment is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . ''L.S.” is an abbreviation for locus sigilli, which literally means "[l]he place of the seal.” Black's Law Dictionary 960 (8th ed.2004).

      . Subsection (e) concerns the statute of limitations for certificates of deposit and therefore has no application here.

      . It is unclear whether one or more additional pages of the amortization schedule were originally attached to the note; any such additional pages are missing from the record before us.

      . The Uniform Negotiable Instruments Law, "[t]he first codification of negotiable instruments law in the United States,” was drafted by the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in 1896 and "was adopted by all states and territories of the United States in the early 1900s.” Mark B. Greenlee and Thomas J. Fitzpatrick IV, Reconsidering the Application of the Holder in Due Course Rule to Home Mortgage Notes, 41 UCC L.J. 3 Art. 2 (2009). The NCCUSL and the American Law Institute drafted the Uniform Commercial Code ("UCC”) in part as a replacement for the Uniform Negotiable Instruments Law. See id. The UCC superseded the Uniform Negotiable Instruments Law in Alabama on December 31, 1966.

      . The Court went on to state in Ex parte First National Bank of Ozark, 212 Ala. 274, 275, 102 So. 371, 372 (1924), that the only difference between contracts under seal and other promissory notes was "the limitation of action thereon, which, as to sealed instruments, is extended to ten years. Code 1923, § 8943.” As will be explained infra, however, § 6-2-2(e), Ala.Code 1975, renders obsolete the suggestion that a 10-year statute of limitations always applies to an action on a sealed instrument.

      . By discussing and rejecting the Fosters’ assertion that it is necessary to consult the purchase agreement to establish the rights and obligations of each party with respect to the foregoing items, we do not imply that these items must be expressed in an instrument in order for that instrument to be a "negotiable instrument." The criteria for what constitutes a "negotiable instrument” are those described in § 7-3-104(a), Ala.Code 1975. Our discussion of the foregoing items is for the purpose of addressing the Fosters' argument that it is necessary to consult a writing other than the promissory note to discern these items and that, therefore, according to the Fosters, the note does not meet the definition of unconditionality in § 7-3-106.
      It is true that it is necessary to consult the purchase agreement in order to discern the parties’ agreement, if any, as to whether there are to be late charges, whether such late charges are to be treated as liquidated damages, and the events of default, if any. That purchase agreement, therefore, is relevant in a lawsuit, such as this one, between Hacienda and the Fosters. That fact, however, does not deprive the note of its negotiable character. The terms required of a "negotiable instrument" by § 7-3-104(a) are present in the instrument at issue, and that instrument is and would be negotiable to a third party based on those terms, i.e., without the inclusion of the additional terms that are in the purchase agreement between the Fosters and Hacienda.

      . See § 7-3-106, Ala.Code 1975, Official Comment ¶ 1 (providing the following examples of statements that would deprive a note of its unconditionality for purposes of § 7-3-104: "1. ‘This note is subject to a contract of sale dated April 1, 1990 between the payee and maker of this note.’ 2. 'This note is subject to a loan and security agreement dated April 1, 1990 between the payee and maker of this note.’ 3. ’Rights and obligations of the parties with respect to this note are stated in an agreement dated April 1, 1990 between the payee and maker of this note.' ”). See also 1A Thomas M. Quinn, Quinn’s Uniform Commercial Code Commentary and Law Digest, § 3-105[A] (2002) (stating that ”[t]he conditional or unconditional character of the promise or order is to be determined by what is expressed in the writing itself”); Schmuckie v. Alvey, 758 S.W.2d 31, 33 (Ky.1988) (noting that "[t]he determination of whether an instrument is unconditional must be made from the content of the instrument itself”); and First State Bank at Gallup v. Clark, 91 N.M. 117, 119, 570 P.2d 1144, 1146 (1977) (observing that "[i]t is clear that in order to determine whether an instrument meets [the] definition [of a 'negotiable instrument’] only the instrument itself may be looked to, not other documents, even when other documents are referred to in the instrument”).


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Richard F. ALLEN, individually and as commissioner of the Alabama Department of Corrections v. Mary BARKSDALE et al.
    1080242.
    Supreme Court of Alabama.
    Sept. 18, 2009.

      Tara S. Knee, deputy legal counsel, Alabama State Personnel Department, for appellant.
    Jake Watson, Huntsville; Herman Watson, Jr., of Watson, Jimmerson, Martin, McKinney, Graffeo & Helms, P.C., Huntsville; and Sarah Elisabeth Geraghty, Southern Center for Human Rights, Atlanta, Georgia, for appellees.
    E. Cutter Hughes and Daniel Kaufmann of Bradley Arant Boult Cummings LLP, Huntsville; and Bradley W. Pratt and Merritt E. McAlister of King & Spalding LLP, Atlanta, Georgia, for amici curiae Alabama Press Association, The Huntsville Times, Raycom Media, Inc., WSFA LLC (Montgomery), and WAFF LLC (Huntsville), in support of the appellees.
   BOLIN, Justice.

Richard F. Allen, in his individual capacity and in his official capacity as commissioner (hereinafter referred to as “the commissioner”) of the Alabama Department of Corrections (“DOC”), appeals from a summary judgment ordering the commissioner to release certain reports regarding prison incidents to the Southern Center for Human Rights (hereinafter “SCHR”) and Mary Barksdale. We affirm.

Facts and Procedural History

On October 30, 2006, SCHR sent a written request to DOC, seeking incident reports regarding assaults and murders of several inmates at Donaldson Correctional Facility. The request was pursuant to the Alabama Open Records Act, §§ 36-12-40 and -41, Ala.Code 1975. On November 14, 2006, SCHR again requested the reports from DOC. On November 17, 2006, SCHR requested the same reports and also sought reports on the assault of another inmate. On January 4, 2007, DOC responded to SCHR’s requests. DOC stated that the information requested was part of an inmate’s file and that inmates’ files were not considered public records. In support of its contention that the records did not come under the purview of the Open Records Act, DOC cited Tarlton v. United States, 430 F.2d 1351 (5th Cir. 1970), and an opinion of the Alabama Attorney General (Op. Att’y Gen. No. 1979-328).

On March 15, 2007, SCHR sent a letter to the commissioner expressing concerns about the conditions at Donaldson Correctional Facility and relating 50 reports it had received from inmates regarding assaults and other crimes at the facility. SCHR also stated that blocking access to the reports, which it said involved a significant public-health crisis at the facility, might lead to litigation. On April 27, 2007, SCHR met with the commissioner. DOC provided SCHR with a summary of certain incidents from the facility but did not provide the records.

On August 6, 2007, 32-year-old Farron Barksdale, who suffered from schizophrenia, was sentenced to life imprisonment without the possibility of parole for the murder of two police officers. On August 8, 2007, Barksdale was transported to Kil-by Correctional Facility. Several days later, Barksdale was found in his cell comatose. On August 21, 2007, Barksdale died. According to the record, the cause and circumstances surrounding Barksdale’s death were unknown, and DOC employees had made comments to members of the media speculating on the cause of Barks-dale’s death.

On August 31, 2007, Mary Barksdale, Farron’s mother, on behalf of her son, requested the incident report and other documents from the commissioner regarding Farron’s death. On September 7, 2007, the commissioner denied the request, stating that the documents were part of the inmate’s file and that there was an attorney general’s opinion providing that unless there is a court order, no persons or agencies “other than criminal justice types” should receive information from an inmate’s file.

On September 20, 2007, SCHR, representing six inmates from Donaldson Correctional Facility, along with Mary Barks-dale (the inmates and Barksdale’s mother are hereinafter referred to as “the inmates”), sued the commissioner, alleging that he was in violation of the Open Records Act for failure to comply with their request for certain documents. Specifically, the inmates asked for disclosure of all public records, including prison-incident reports regarding Farron Barksdale’s death, an assault on inmate Michael Castillo at St. Clair Correctional Facility, and several stabbings, beatings, and deaths at Donaldson Correctional Facility, which were addressed in the complaint. On October 1, 2007, the inmates filed a motion for an injunction, compelling the commissioner to comply with their requests. In the motion, the inmates also sought certain investigative reports they were unable to obtain from any other source as provided for in § 12-21-3.1(c), Ala.Code 1975. On October 24, 2007, the commissioner filed a motion to dismiss, claiming State immunity, State-agent immunity, and discretionary-function immunity. He also argued the inmates failed to state a claim upon which relief could be granted. On October 31, 2007, the attorney general filed an amicus curiae brief in support of the commissioner’s motion to dismiss. On November 7, 2007, the Alabama District Attorneys Association also filed an amicus curiae brief in support of the commissioner.

On November 9, 2007, the inmates filed a motion in opposition to the commissioner’s motion to dismiss. The trial court held a hearing, and on January 18, 2008, the trial court denied the commissioner’s motion to dismiss.

On March 7, 2008, the commissioner filed his answer to the complaint. On April 18, 2008, The Huntsville Times newspaper filed an amicus curiae brief in support of the inmates. On July 31, 2008, the commissioner moved for a summary judgment. On September 15, 2008, the inmates filed a response to the commissioner’s motion and a cross-motion for a summary judgment. In their summary-judgment motion, the inmates stated that the commissioner may, on a case-by-case basis, redact information from a document or withhold a document if the commissioner can show that release of the information would cause a specific threat to public safety. Both parties presented depositions and other materials in support of their respective summary-judgment motions.

On October 7, 2008, the trial court denied the commissioner’s motion for a summary judgment and granted the inmates’ summary-judgment motion. The trial court stated: “[T]he records requested are ordered produced subject to [the commissioner’s] retaining the right to redact sensitive information on a case by case basis if the [commissioner] reasonably believes the release of information will subject a person to specific threat or harm, or if the release will jeopardize a pending criminal investigation or the release will violate any state or federal law.” The commissioner appeals.

Standard of Revieiv

The standard of review for a ruling on a motion for a summary judgment is well settled:

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’
“... Questions of law are reviewed de novo.”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006) (quoting Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994)).

Analysis

Section 36-12 — 40, Ala.Code 1975, a part of the Open Records Act, provides:

“Every citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute. Provided however, registration and circulation records and information concerning the use of the public, public school or college and university libraries of this state shall be exempted from this section. Provided further, any parent of a minor child shall have the right to inspect the registration and circulation records of any school or public library that pertain to his or her child. Notwithstanding the foregoing, records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation information concerning critical infrastructure (as defined at 42 U.S.C. § 5195c(e) as amended) and critical energy infrastructure information (as defined at 18 C.F.R. § 388.113(c)(1) as amended) the public disclosure of which could reasonably be expected to be detrimental to the public safety or welfare, and records the disclosure of which would otherwise be detrimental to the best interests of the public shall be exempted from this section. Any public officer who receives a request for records that may appear to relate to critical infrastructure or critical energy infrastructure information, shall notify the owner of such infrastructure in writing of the request and provide the owner an opportunity to comment on the request and on the threats to public safety or welfare that could reasonably be expected from public disclosure on the records.”

Section 36-12-41, Ala.Code 1975, a part of the Open Records Act, states: “Every officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees thereof, and such copy is admissible as evidence in like cases and with like effect as the original writing.”

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

The legislature in § 41-13-1, in creating a State Records Commission, defined the term “public records ”:

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

Although § 41-13-1 is included in title 41, which regulates the retention and disposal of public records, “we doubt the Legislature intended to make a distinction between a ‘public writing’ and a ‘public record.’ ” Stone v. Consolidated Publishing, supra, 404 So.2d at 680. However, this Court has used the definition in Stone. See Ex parte Gill, 841 So.2d 1231, 1233-34 (Ala.2002); Birmingham News Co. v. Muse, 638 So.2d 853, 854 (Ala.1994); and Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989).

In Stone, this Court stated: “Courts must balance the interest of the citizens in knowing what their public officers are doing in the discharge of public duties against the interest of the general public in having the business of the government carried on efficiently and without undue interference.” 404 So.2d at 681. In Stone, we also stated that some records kept by public officials may not be within the purview of § 36-12-40, including: “[1] [r]eeorded information received by a public officer in confidence, [2] sensitive personnel records, [3] pending criminal investigations, and [4] records the disclosure of which would be detrimental to the best interests of the public.” Id. “It is clear from the wording of § 36-12-40 that the legislature intended that the statute be liberally construed.” Chambers, 552 So.2d at 856.

In Ex parte Perch, 17 So.3d 649 (Ala. 2009), this Court held, with regard to an inmate’s request for certain public writings:

“Section 36-12-40 is referred to as the Open Records Act (‘the Act’). The Act ‘is remedial and should therefore be liberally construed in favor of the public.’ Water Works & Sewer Bd. of Talladega v. Consolidated Publ’g, Inc., 892 So.2d 859, 862 (Ala.2004). The Act provides, in relevant part, that ‘[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.’ ‘No statute denies this right to inmates or felons.’ Ex parte Gill, 841 So.2d 1231, 1233 (Ala.2002). The term ‘public writing,’ as the Court of Criminal Appeals recently acknowledged, ‘has been interpreted to include judicial records.’ State v. Martin, 4 So.3d 1196, 1201 (Ala.Crim.App.2008)(holding that trial exhibits are public records and that, therefore, a requester ‘was not required to establish good cause before he was entitled to inspect the trial exhibits’).”

(Emphasis added.)

In the present case, the inmates are seeking copies of records documenting incidents occurring inside the prison system. According to the deposition of Paul Yar-brough, director of the intelligence and investigations division (hereinafter “the I & I division”) of DOC, corrections officers generally write incident reports that document anything that happens in a correctional facility. Incident reports may be written as a result of inmates gambling, a fistfight, an inmate failing a urine test, or a search of an inmate. More serious incidents, such as an inmate’s death, may be forwarded to the I & I division. The investigation by the I & I division results in a report. Yarbrough testified that investigations by the I & I division are usually completed within 30 days of the day they are received. He stated that the I & I division investigated Farron Barksdale’s death and that the investigation was still pending and had been pending for nine months at the time of the deposition. Yar-brough had been instructed by his counsel not to testify as to whether a report had been generated in the investigation of Barksdale’s death. We note that there was evidence in the record indicating that certain serious assaults, such as stabbings involving inmates, were not investigated by the I & I division and that in those cases only an incident report was generated.

The commissioner testified that no incident reports generated by employees of DOC are made available to the public. When asked if there was a “blanket” policy prohibiting the disclosure of incident reports under the Open Records Act, he responded that it was DOC’s policy not to release any incident reports.

We note that § 14-3-9(a), Ala.Code 1975, provides that corrections officers have a duty to report to the I & I division all violations of the law relating to prisons that may come to their attention. Section 14-3-9 further provides that, where applicable, the I & I division shall refer such violations to the appropriate district attorney.

The commissioner argues that § 12 — 21—3.1(b), Ala.Code 1975, provides a statutory exemption for all incident reports generated inside a prison:

“Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure.”

“[T]he party refusing disclosure shall have the burden of proving that the writings or records sought are within an exception and warrant nondisclosure of them.” Chambers, 552 So.2d at 856-57.

We are mindful that this Court in Stone recognized a pending criminal investigation as an exception to the Open Records Act, and that in 1998 the legislature adopted § 12-21-3.1 as a statutory exemption. We note that there are numerous specific statutes exempting from public inspection certain records, including, but not limited to, juvenile and youthful-offender records, identity of Medicaid recipients, records of a banking board, hospital records produced by subpoena, probation reports (unless ordered released by a court), reports of certain diseases, and tax returns and financial statements. See, respectively, § 12-15-101 et seq., Ala.Code 1975; § 22-6-9, Ala.Code 1975; § 5-3A-11, Ala. Code 1975; § 12-21-6, Ala.Code 1975; § 15-22-53(b), Ala.Code 1975; § 22-11A-2, -14 and -22, Ala.Code 1975; and § 40-2A-10, Ala.Code 1975. However, we disagree with the commissioner that all incident reports generated by DOC employees are exempt from the Open Records Act under § 12-21-3.1(b).

This Court made clear that in relation to the Open Records Act, the judicially created exceptions set out in Stone, supra, must be narrowly construed. See Ex parte Department of Transp., 757 So.2d 371, 374 (Ala.1999) (“The right of the public to inspect and copy a ‘public writing is broad and the exceptions thereto are narrow and limited.”); Chambers v. Birmingham News, 552 So.2d at 856 (holding that the exemptions set forth in Stone should be strictly construed). Although § 12-21-3.1 is a statutory exemption, it is nonetheless an exception to the Open Records Act and thus should also be narrowly construed. This conclusion is in keeping with the broad general policy of open government. The document reflecting the work of government belongs to the public, and, although exceptions to disclosure of such documents are necessary, any exceptions should be narrowly construed. In other words, the Open Records Act favors disclosure, and exemptions to that Act, including those created by statute, must be narrowly construed.

Section 12-21-3.1 (b) clearly exempts law-enforcement investigative reports and related material from public disclosure. In this case, the incident reports, which identify occurrences within a prison, must be compared to an investigative report prepared by the I & I division. An incident report documents any incident— from the mundane to the serious — whereas an investigative report by the I & I division reflects a close examination of an incident and a systematic inquiry and may lead to criminal prosecution. The commissioner’s refusal to release incident reports to the general public is not protected by § 12-21-3.1(b). In contrast to an incident report, an investigative report produced by the I & I division would be protected by § 12 — 21—3.1(b), as the inmates concede. Even the legislature, in requiring under § 14-3-9 that certain crimes be reported to the I & I division and that the I & I division could then determine if the violation should be referred to a district attorney, did not consider all incident reports as synonymous with investigative reports.

In addition to certain incident reports, the inmates also seek certain investigative reports, and the trial court ordered that the requested records be produced. The inmates argue that although some investigative reports are protected from disclosure under § 12 — 21—3.1(b), the inmates are entitled, under § 12-21-3.1(c), Ala.Code 1975, to the investigative reports they have requested.

Section 12 — 21—3.1(c) provides:

“(c) Under no circumstance may a party to a civil or administrative proceeding discover material which is not authorized discoverable by a defendant in a criminal matter. Noncriminal parties may upon proper motion and order from a court of record: Secure photographs, documents and tangible evidence for examination and copying only by order of a court imposing such conditions and qualifications as may be necessary to protect a chain of custody of evidence; or protect the prosecutors’, law enforcement officers’, or investigators’ work product; or to prevent the loss or destruction of documents, objects, or evidence. Such discovery order may be issued by a court of record upon proof by substantial evidence, that the moving party will suffer undue hardship and that the records, photographs or witnesses are unavailable from other reasonable sources.”

The inmates argue that the investigative reports of the I & I division are completely unavailable to them without a subpoena and that the information contained in the investigative reports are unavailable by any other means because inmate victims are often unable to provide critical information including the dates, names of witnesses, names of perpetrators, and the punishment taken against the perpetrators. They argue that several witnesses to the incidents in the complaint as to which the inmates seek reports are unknown and unknowable except through the investigative reports. The inmates argue that they have limited access to information within the prison by any other means and that prison personnel are unlikely to make statements for fear of reprisal or potential legal liability.

This Court has addressed § 12-21-3.1(c) as it concerns a request by a party in a civil proceeding for an investigative report. In Ex parte Alabama Department of Mental Health & Mental Retardation, 840 So.2d 868 (Ala.2002), the issue presented was whether a report prepared by internal investigators employed by the Department of Mental Health and Mental Retardation was afforded protection under § 12-21-3.1. A patient at a state-run mental-health facility was strangled in her room. One of the employees, who was terminated for failing to conduct a bed check and for falsifying medical records relating to the patient’s death, sued the Department and its commissioner. The employee requested reports completed by the Department’s investigative division. The Department argued that the investigative report was not discoverable unless the employee showed that she was unable, without undue hardship, to obtain the substantial equivalent of the information contained in the reports by other means. This Court noted that the Department’s internal investigators were charged with all the powers of police officers and were, therefore, entitled to protection from civil subpoena, except upon a showing that the information contained in the reports could not be obtained from other sources without undue hardship. The employee argued that she had shown undue hardship. However, the employee made only conclusory statements and failed to show undue hardship. This Court noted that the trial court should have conducted an in camera inspection of the reports to determine whether the statements contained in the reports were relevant and whether the information was such that it could not be obtained from another source without undue hardship. We further stated:

“Undue hardship might include, among other things, the unavailability of a witness whose statement cannot be obtained from another source; the lack of access to patients who had given statements to the BSI investigators or the impossibility of obtaining the equivalent of those statements from patients because of a patient’s physical or mental deterioration; the refusal of patients or hospital staff to make a statement to [the employee] for fear of reprisal by the hospital; or the refusal of patients or staff members or even former staff members to speak to [the employee] out of fear of self-incrimination.”

840 So.2d at 869.

Rather then respond to the inmates’ argument regarding undue hardship under § 12-21-3.1(c), the commissioner argues that disclosure of all incident reports and all investigative reports is barred by § 12-21-3.1(b). Failure to argue an issue waives that issue and precludes its consideration on appeal. Boshell v. Keith, 418 So.2d 89 (Ala.1982).

Next, the commissioner argues that the plain language of § 36-12-40 provides an exception for “records concerning security plans, procedures, assessments, measures, or systems, and any other records relating to, or having an impact upon, the security or safety of persons, structures, facilities, or other infrastructures, including without limitation information concerning critical infrastructures ... and critical energy infrastructure information....” Specifically, the commissioner argues that disclosure of the information in the incident reports would lead to potential disturbances in prisons and could lead to inmates seeking retaliation against other inmates, which, he says, would compromise security in the prison system. This exception, added by the legislature in 2004, clearly refers to records regarding public infrastructure and limits public disclosure of sensitive information affecting public safety and national security. This prohibition against disclosure, narrowly construed, does not encompass the concerns raised by the commissioner. We note that had the inmates been seeking copies of the security system or the security procedures for a prison, this exemption would have applied. Moreover, the commissioner testified:

“Q. Okay. In your responses to [the inmates’] interrogatories you state that, ‘There are incidents where inmates and employees have been threatened due to incident reports being written or investigations being conducted.’ Tell me about one such incident.
“A. That’s just been told to me. I don’t — I can’t give you an incident.
“Q. Okay. So you’re not aware — you are not aware of any such incident; is that correct?
“A. Not personally, no.
“Q. Who — who told you that?
“A. General counsel.
“Q. Okay. So your lawyers — and did they tell you about the specific incident or did they tell you that there were incidents that occurred?
“A. They just told me it happens from time to time.”

The commissioner, as the party refusing to disclose the requested records, had the burden of proving that the records sought are within an exception and warrant nondisclosure. His testimony does not support his contention that disclosure of the records impacts prison security. Moreover, the trial court’s order allows the commissioner to redact information that would subject a person to specific threat or harm or if the release of the information •will jeopardize a pending criminal investigation or violate any state or federal law.

Last, the commissioner argues that investigations would be compromised if all incident reports are subject to the Open Records Act because:

“[t]here would also be a chilling effect on the investigative process by the correctional officers and the I & I division if they believed every incident report would be subject to public access under the Open Records Act. The investigative process would possibly not be as accurate or extensive as it is presently. Officers would not pursue leads with vigor as they do now. Aso, officers would be less likely to fully and completely report an incident or the security measures they took to remedy an incident or breach in security. This would impact how a supervisor monitors the trends within his/her institution.”

(Commissioner’s brief, pp. 26-27.) Suffice it to say, we find it hard to believe that a corrections officer would neglect his or her job because the public would have access to certain records reflecting actions of the officer as a government employee.

Conclusion

Citizens are entitled to information regarding the affairs of their government. Alabama’s Open Records Act first appeared in the 1923 Code of Alabama and represents a long history of openness. The Open Records Act is remedial and should therefore be construed in favor of the public. The statutory and judicially created exceptions generally protect an individual’s privacy, the integrity of a criminal investigation, public safety and security, or privileged information. The exceptions to the Open Records Act should be strictly construed, because the purpose of the Open Records Act is to permit the examination of public writings and records. The trial court’s order permitting redaction by the commissioner of any sensitive information in the requested records safeguards any interest the commissioner has in protecting inmates or DOC employees from a specific threat or harm. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.

      . In Water Works & Sewer Board of Talladega v. Consolidated Publishing, Inc., 892 So.2d 859 (Ala.2004), Consolidated Publishing sued the Water Works Board of the City of Tallade-ga and the custodian of its records to obtain certain records pursuant to the Open Records Act. The Board argued that because it was a public corporation, it was not subject to the Act. The trial court held that the Board was subject to the Act but that some of the records sought were excluded from Act because those records involved pending criminal investigations. Both parties appealed. This Court held that the Board was subject to the Act because it performed a municipal function and that the employees of the Board were subject to the Act. We went on to address whether certain records were properly excluded. This Court stated that it was unclear what records the trial court exempted from disclosure under the Stone pending-criminal-investigation exemption; however, the records exempted appeared to include documents not covered by § 12-21-3.1(b). We remanded the cause for the trial court to consider whether those documents were included in the documents exempted under § 12-21-3.1.


author: LYONS, Justice.

text:
    Debra S. JEAN v. Derek P. JEAN and the estate of George T. Jean.
    1080989.
    Supreme Court of Alabama.
    Sept. 18, 2009.

      Nicholas Cole Hughes and J. Knox Argo, Montgomery; and Deborah Q. Harding, Montgomery, for appellant.
    C.E. Mauney of Mauney & Associates, L.L.C., Fort Payne, for appellee Derek P. Jean.
    James D. Hamlett, Montgomery, for ap-pellee the estate of George T. Jean.
   LYONS, Justice.

Debra S. Jean appeals from a summary judgment entered in favor of Derek P. Jean and the estate of George T. Jean on Debra’s claims alleging breach of contract and negligence. We dismiss the appeal.

Procedural History

George T. Jean was father to three adult children: Debra, Derek, and Sheryl. In December 2006, George revised his will and executed separate deeds conveying certain real property to Derek. George died in January 2007; his will was filed with the Montgomery Probate Court on March 9, 2007. In April 2007, Debra filed a contest of the will pursuant to § 43-8-190, Ala.Code 1975. She asserted that George lacked capacity to make the will and that the will was the product of undue influence or fraud. The contest was transferred to the Montgomery Circuit Court pursuant to § 43-8-198, Ala.Code 1975.

In December 2007, Debra amended her contest to request a judgment declaring that the December 2006 inter vivos conveyances from George to Derek were void. Debra asserted that George lacked capacity to make the conveyances and that they were the product of undue influence or fraud. On March 19, 2008, Debra amended her contest again to assert claims of breach of contract and negligence against “the estate” and Derek. Debra alleged that, during his lifetime, George had hired Derek to renovate part of her house in exchange for the transfer of certain real property, “monies, and other chattel.” Debra alleged that she was a third-party beneficiary of the contract between George and Derek and that Derek had breached the contract by failing to complete the work, thus leaving her house in an incomplete and unsafe condition. Debra also alleged that Derek and George owed a duty “to perform ... in a workmanlike manner once they undertook such an endeavor,” that they failed to do so, and that, as a result, she suffered actual damage and emotional distress.

Derek and the estate answered and subsequently moved for a summary judgment on the breach-of-contract and negligence claims. Debra responded to the motion. Ultimately, Debra stated additional claims against Derek and against her sister, Sheryl; Derek and the estate filed counterclaims seeking to recover money George had loaned Debra. No party objected to the amended claims and counterclaims as being beyond the limited jurisdiction of a court hearing a will contest.

On April 15, 2009, the trial court entered a summary judgment in favor of Derek and the estate as to the breach-of-contract and negligence claims described above. The trial court concluded that the breach-of-contract claim was barred by the Statute of Frauds and that the negligence claim was barred by the applicable statute of limitations. The trial court reserved ruling on several other claims but certified its April 15, 2009, order as final pursuant to Rule 54(b), Ala. R. Civ. P. Debra appealed.

Analysis

This Court has stated: “[A] circuit court’s lack of jurisdiction over a will contest can be raised at any time.” Kaller v. Rigdon, 480 So.2d 536, 539 (Ala.1985). “The jurisdiction of both the probate court and the circuit court over will contests is statutory and limited.... The only jurisdiction a court can take over such cases is that granted by statute.” Kaller, 480 So.2d at 539. Furthermore, “[b]ecause will contest jurisdiction is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly.” Kaller, 480 So.2d at 538. See also Newman v. Savas, 878 So.2d 1147, 1149 (Ala.2003).

Debra initiated this proceeding as a will contest in the Montgomery Probate Court, seeking to prevent the issuance of letters testamentary to the executor named in the will; the contest was transferred to the Montgomery Circuit Court pursuant to § 43-8-198, Ala.Code 1975. That section provides, in pertinent part: “The issues must be made up in the circuit court as if the trial were to be had in the probate court.” In describing the issues permissible in the probate court in an action regarding the contest of a will, § 43-8-190, Ala.Code 1975, provides that the person bringing the contest may do so

“by filing in the court where it is offered for probate allegations in -writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court....”

Regarding § 43-1-78, Ala.Code 1975, the predecessor to § 43-8-198, this Court in Bardin v. Jones, 371 So.2d 23, 25 (Ala. 1979), considered whether “a Rule 15, [Ala. R. Civ. P.,] amendment or similar addition to the pleadings is permissible in the circuit court.” In explaining that such pleadings were permissible in limited circumstances, this Court explained:

“ ‘The jurisdiction and authority of the circuit court is limited to the trial of the issues presented by the contest after which the case must be certified back to the probate court.’
“[Thigpen v. Walker, 251 Ala. 426, 429, 37 So.2d 923, 926 (1948).]
“From the above-cited authorities it is clear that the probate court prior to transfer could allow additional issues to be presented to it in accordance with the Rules of Civil Procedure, so long as those issues could properly be raised in a will contest .... In short we now hold that the circuit court following transfer of a will contest to it under § 43-1-78 [now § 43-8-198] can consider any issues presented in an appropriate pleading under the Rules of Civil Procedure, provided those issues can properly be raised in a will contest”

371 So.2d at 26 (emphasis added).

Debra’s claim for a judgment declaring the inter vivos deeds from George to Derek void and her claims against Derek and the estate seeking damages for breach of contract and negligence are not claims that could be asserted in a contest of George’s will, where the issues are limited to the unsoundness of his mind in making the will or any other valid objection to the will. See § 43-8-190. Based on the limited jurisdiction of the probate court in actions involving the contest of a will, see § 43-8-190, and the corresponding restriction in § 43-8-198 that the “issues must be made up in the circuit court as if the trial were to be had in the probate court,” we sua sponte conclude that the trial court lacked subject-matter jurisdiction to consider those claims. Any action taken by a trial court without subject-matter jurisdiction is void. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999). Accordingly, the summary judgment for Derek and the estate on the breach-of-contract and negligence claims was void. Because “a void order or judgment will not support an appeal,” Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008), we dismiss the appeal.

APPEAL DISMISSED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . The pleadings filed in the probate court are not included in the record on appeal.

      . Because this contest was filed before probate of the will, no letters testamentary had been issued to the executor named in the will. Nor does the record reflect the appointment of an administrator ad litem to represent the estate in the amended contest asserting Debra’s claims adverse to the estate. See Ala. Code 1975, § 43-2-250 ("When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.”).

      . The record does not reflect the naming of an administrator ad colligendum to pursue claims on behalf of the estate before the issuance of letters testamentary. See Ala.Code 1975, § 43-2-47(a) (“The judge of probate may, in any contest respecting the validity of a will, or for the purpose of collecting the goods of a deceased, or in any other case in which it is necessary, appoint a special administrator, authorizing the collection and preservation by him of the goods of the deceased until letters testamentary or of administration have been duly issued.”).


author: PER CURIAM. MURDOCK, Justice

text:
    DOSTER CONSTRUCTION COMPANY, INC. v. MARATHON ELECTRICAL CONTRACTORS, INC.
    1061471.
    Supreme Court of Alabama.
    Sept. 25, 2009.

      Stanley A. Cash and Joseph R. Duncan, Jr., of Huie, Fernambucq & Stewart, Birmingham, for appellant.
    Thomas S. Hale and J. Michael Keel of Burgess & Hale, L.L.C., Birmingham, for appellee.
   PER CURIAM.

Doster Construction Company, Inc. (“Doster”), appeals from the denial by the Jefferson Circuit Court of Doster’s motion to reconsider the summary judgment in favor of Marathon Electrical Contractors, Inc. (“Marathon”), concerning Doster’s third-party complaint alleging breach of contract and failure to procure insurance. We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

Doster was the general contractor at a job site for an automobile-parts manufacturer referred to in the record as “Oxford Automotive” in Bessemer. It entered into a subcontract with Marathon, pursuant to which Marathon was to provide electrical work at the job site. The contract between Doster and Marathon contained two provisions pertinent to this action: an indemnity clause (“the indemnity clause”) and a clause concerning the provision of liability insurance (“the liability-insurance clause”). The indemnity clause provides as follows:

“Indemnity. $100.00 of the Subcontract Price is specific consideration for [Marathon’s] agreement to defend and indemnify [Doster] and others as provided in this Paragraph. To the fullest extent permitted by law, [Marathon] shall defend and indemnify [Doster], Owner, and Architect, and their respective directors, officers, agents, employees, successors, insurers, sureties, affiliates, and assigns (collectively, the ‘Indemnitees’) against, and assume any obligations of the Indemnitees for, all liabilities, claims, suits, actions, proceedings, damages, losses, judgments, and expenses (collectively, ‘Indemnified Losses’) including, but not limited to attorneys’ fees, that arise in any way, directly or indirectly, out of a failure by [Marathon] (including the [Marathon] Design Professionals) to: (a) carry out the Work in a safe manner; (b) strictly comply with any applicable laws, regulations, building codes, rules, or industry standards; (c) exercise reasonable care in the performance of the Work or to execute the Work in a non-negligent manner; or (d) strictly comply with the requirements of this Subcontract. [Marathon’s] obligation to defend and indemnify the Indemnitees shall not be diminished or excused merely because the negligence or other breach of a legal duty on the part of any Indemnitee also contributed to the Indemnified Loss. Provided, however, that if in any proceeding initiated by a third party, there is an apportionment of the relative contributions to the Indemnified Loss by the Indemnitees on the one hand, and [Marathon] on the other, then [Marathon] shall only be required to defend and indemnify the Indemnitees to the extent of [Marathon’s] proportionate contribution. [Marathon’s] obligations under this Paragraph do not limit any other right or obligation of indemnity that exists in favor of any Indemnitee. In the event that a claim is made by an employee of Subcontractor against an In-demnitee, [Marathon] shall defend and indemnify such Indemnitee to the same extent as if such claim were made by a non-employee, notwithstanding any statute or judicial decision that would otherwise limit [Marathon’s] liability. If and to the extent that the indemnification provided by this Paragraph should be construed to exceed any restriction established by law, then it is the intent of the parties that this Paragraph be deemed to be reformed and modified such that it affords to the In-demnitees the maximum indemnification allowed by such law, and any terms, words, and provisions of this Paragraph shall be deemed modified or deleted to the extent necessary to make this Paragraph valid and enforceable.”

The liability-insurance clause provides, in pertinent part:

“Liability Insurance. [Marathon] shall maintain at its own expense (a) all insurance required by applicable law; (b) all insurance required for subcontractors by the Prime Contract; and (c) the forms of insurance identified below in at least the amounts specified. [Marathon] shall have [Doster] designated and included as an additional insured on all such insurance. Coverage of [Dost-er] as an additional insured shall be primary, and not contributory or excess. [Marathon] waives all rights of recovery against [Doster], Owner, and Architect for any loss or damage covered by any insurance, including all rights that might otherwise accrue to any subrogee.”

Doster also entered into a subcontract with Steel City, Inc. (“Steel City), pursuant to which Steel City was to provide Doster with the weights and personnel necessary for testing an overhead crane. Though the timing of its execution is disputed by the parties, both parties acknowledge that an employee of Doster signed a one-page invoice for overtime work that contained the following paragraph:

“[Doster] shall defend and indemnify [Steel City] and hold [Steel City] harmless from any and all losses, claims, costs ... and liability for personal injury or any other casualty losses (including property damage) arising from the performance of this Agreement, except in the case of reckless or willful misconduct by [Steel City’s] employees or agents who at such time are acting under the authority and control of [Steel City], provided however, during the performance of this Agreement, any and all of [Steel City’s] equipment operators, maintenance personnel or other employees or agents whose services are required for the operation of the equipment used hereunder are agreed and deemed to be under the ultimate power and control of [Doster] and as such are ‘loaned servants.’ ”

Les Unland was employed by Marathon as an electrician. On July 18, 2008, Steel City employees were testing an overhead crane when it malfunctioned. Unland had finished his work for the day when he was called back to the work site to troubleshoot the electrical system of the crane. In order to fix the problem, Unland used a scissor lift to raise himself to the overhead crane. Upon reaching the “cab” of the crane, Unland lowered to the project floor a remote that operated the crane. After working on the crane, Unland remounted the scissor lift to lower himself back to the floor. Both parties state that a Steel City employee picked up the crane remote and engaged the device, causing the crane to start moving. The crane collided with the scissor lift, knocking it over and causing Unland to fall 25 feet to the project floor. Unland sustained injuries and was taken to the hospital.

Unland sought and received workers’ compensation benefits from Marathon for the accident. On July 1, 2004, Unland sued Doster and Steel City, alleging that “Defendants Doster and Steel City placed the crane in motion causing it to push over the scissor lift” and that such action was “negligent, reckless, and careless” and resulted in Unland’s injuries. Pursuant to the indemnity clause of the contract between Doster and Marathon, Doster tendered Unland’s claims to Marathon, and Marathon, through its insurer, Amerisure Insurance Company, defended Doster. Amerisure eventually settled Unland’s claims against Doster for $400,000 in January 2006.

Steel City tendered Unland’s claims against it to Doster based on the invoice for overtime work, contending that the invoice constituted a contract for indemnification between Steel City and Doster. Doster refused to defend and indemnify Steel City, and Steel City filed a third-party cross-claim for defense and indemnification against Doster. Doster tendered the claim to Marathon, but Marathon viewed its defense and indemnity responsibility to have been completed after the settlement of Unland’s claims against Doster, and it therefore refused the tender. At the same time, Steel City sought to settle Unland’s claims against it, and its insurer, Zurich American Insurance Company (“Zurich”), settled the claims for $600,000 on January 17, 2006.

Following the settlement of Unland’s claims against Doster, the counsel Ameri-sure provided to Doster withdrew and counsel provided by Doster’s insurer, which was also Zurich, stepped in to defend Doster on Steel City’s cross-claim. On March 29, 2006, Doster filed a third-party complaint against Marathon containing two claims. First, Doster alleged that Marathon had breached the indemnity clause by refusing to defend and indemnify Doster on Steel City’s cross-claim. Second, Doster alleged that Marathon had breached the liability-insurance clause by failing to procure insurance coverage for Steel City’s cross-claim against Doster.

On February 7, 2007, Marathon moved for a summary judgment as to both claims asserted in Doster’s third-party complaint, contending that its contract with Doster did not cover Doster’s relationship with Steel City. Doster submitted a response to the motion, along with an affidavit from construction-safety consultant Jerry Gillis. In the affidavit, Gillis testified that, in his opinion, Unland failed to carry out his work in a safe manner, failed to comply with the industry standards, and, in short, failed to meet the standard of care in performing his work. Specifically, Gillis stated that proper procedure required Un-land to lock out the controls to the overhead crane or to tag out the electrical-power source to the crane while he was disembarking the crane via the scissor lift. By failing to lock out the controls, Unland did not ensure that he was clear of the path of the crane before others could control it.

After entertaining arguments, the trial court on March 2, 2007, entered a summary judgment in favor of Marathon regarding both of Doster’s claims, without explaining its reasons for doing so. Dost-er then filed a motion to reconsider the judgment. The trial court denied the motion on May 31, 2007. Doster appeals from the judgment of the trial court with respect to both counts of its third-party complaint against Marathon.

In March 2008, Steel City and Doster, through their insurer Zurich, reached a settlement on Steel City’s cross-claim for defense and indemnity in the amount of $368,288. Hence, that is the amount Dost-er seeks on its indemnity claim against Marathon.

II. Standard, of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ” McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law are reviewed de novo. Alabama Republican Patty v. McGinley, 893 So.2d 337, 342 (Ala. 2004).”

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

III. Analysis

The indemnity clause contains broad language. It provides that Marathon will “defend and indemnify” Doster “against, and assume any obligations of [Doster] for, all liabilities, claims, suits, actions, proceedings, damages, losses, judgments, and expenses ... that arise in any way, directly or indirectly ” out of, among other things, any “failure by Marathon ... to carry out the Work in a safe manner,” to “strictly comply with any ... industry standards,” or to “exercise reasonable care in the performance of the Work or to execute the Work in a non-negligent manner.” To simplify slightly, the indemnity clause requires Marathon to indemnify Doster for any loss Doster may suffer as a result of any negligence attributable to Marathon. It contains no exception for any loss to which Doster’s own negligence may have contributed.

Under the circumstances presented, then, unless the terms of the indemnity clause are in some way ambiguous, we are required to enforce it as it is written.

“Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.”

Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000).

“A contractual provision is ambiguous if it is reasonably susceptible of more than one meaning.” FabArc Steel Supply, Inc. v. Composite Constr. Sys., Inc., 914 So.2d 344, 357 (Ala.2005). Marathon does not offer any reason why the terms of the indemnity clause would be considered ambiguous, and we find none. Cf. Extermitech, Inc. v. Glasscock, Inc., 951 So.2d 689, 693-94 (Ala.2006) (finding an indemnity provision in a contract to be ambiguous because it did not contain a date specifying when one party’s obligation to indemnify the other became effective, and “each party’s interpretation of that provision [was] reasonably plausible”).

The indemnity clause contains no language excepting from Marathon’s indemnity obligation any loss or liability that may be suffered by Doster only by virtue of Doster’s own contractual undertakings, e.g., Doster’s own indemnity agreement with a third party such as Steel City, relating to the electrical work at the job site. Instead, it categorically states that Marathon “assume[s] any obligations” of Doster for “all liabilities, claims, [and] losses” that arise directly or indirectly from Marathon’s negligence. Thus, the trigger for the indemnity clause is negligence on Marathon’s part at the Oxford Automotive job site, and Doster presented undisputed evidence to the trial court that Marathon employee Unland’s own negligence contributed to the accident.

Doster’s indemnity agreement with Steel City clearly constitutes an obligation of Doster. Doster’s settlement with Steel City is a liability incurred as a result of Unland’s claim against Steel City for the injury he sustained at the Oxford Automotive job site. Therefore, under a plain and unambiguous reading of the indemnity clause, Steel City’s claim against Doster fell within the parameters of the indemnity clause because it concerned a liability of Doster that arose indirectly from negligence attributable to Marathon. Thus, the trial court erred in entering a summary judgment in favor of Marathon concerning Doster’s indemnity claim for amounts paid by it to Steel City.

Doster also contends that the trial court erred in entering a summary judgment as to its claim that Marathon failed to procure insurance for the cross-claim made by Steel City.

“Agreements to procure insurance are generally enforceable under Alabama law, and a party who breaches such an agreement is liable for damages resulting from the failure to obtain the promised insurance....
“A contractual obligation to indemnify is distinct from a contractual obligation to procure insurance. Under an agreement to indemnify, the promisor assumes liability for all injuries and damages upon the occurrence of a contingency. In contrast, an agreement to obtain insurance involves the promisor’s agreement to obtain or purchase insurance coverage, regardless of whether [a] contingency occurs.... ”

Goodyear Tire & Rubber Co. v. J.M. Tull Metals Co., 629 So.2d 633, 639 (Ala.1993).

Doster concedes that Marathon named Doster as an additional insured on its policies and that Marathon provided Doster with a certificate of insurance listing it as an additional insured. Marathon’s insurance carrier, Amerisure, did, in fact, perform its duties under the insurance policies and the liability-insurance clause as to Un-land’s claim against Doster, paying Unland $400,000 to settle that claim. Doster argues, however, that Marathon likewise had a duty to procure insurance for Steel City’s cross-claim against Doster.

Unlike the indemnity clause, the liability-insurance clause is not sufficiently broad to encompass Steel City’s cross-claim against Doster. The liability-insurance clause provides that Marathon must “have [Doster] designated and included as an additional insured” on the policies Marathon was required to obtain for its work at the Oxford Automotive job site. The liability-insurance clause does not state that Marathon was required to procure insurance to insure Doster for liabilities to another Doster subcontractor Doster might contractually assume; Doster cites no provision of the liability-insurance clause with which Marathon failed to comply in this regard. Marathon named Dost-er as an additional, primary insured in its policies and provided Doster with proof of that insurance. Under the liability-insurance clause, Marathon performed its duty to procure insurance, and Doster’s breaeh-of-contract claim in this regard necessarily fails.

TV. Conclusion

Based on the foregoing, the trial court erred in entering a summary judgment in favor of Marathon as to Doster’s claim alleging breach of contract as to the indemnity clause, while it correctly entered a summary judgment as to Doster’s claim alleging breach of contract as to the liability-insurance clause. Accordingly, the trial court’s judgment is affirmed in part and reversed in part, and the cause is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

MURDOCK, Justice

(concurring in part and dissenting in part).

I concur in the Court’s affirmance of the trial court’s summary judgment in favor of Marathon Electrical Contractors, Inc., concerning the claims against it by Doster Construction Company, Inc., alleging that Marathon breached its contract with Dost-er by faffing to procure insurance for a cross-claim asserted against Doster by Steel City, Inc. I disagree, however, with the Court’s conclusion that Marathon breached its contract with Doster when it failed to indemnify Doster for Steel City’s claim against Doster.

Contracts “ ‘are construed so as to give effect to the intention of the parties, and, to determine this intent, a court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions.’ ” Celtic Life Ins. Co. v. McLendon, 814 So.2d 222, 224 (Ala.2001) (citations and emphasis omitted). Of even more specific application here is the principle that an indemnity contract should not be “extended to losses or damages neither expressly within its terms, nor of such character that it may reasonably be inferred that the parties intended to covenant against them.” Pyle v. Pizitz, 215 Ala. 398, 401,110 So. 822, 824 (1926).

It is true that Steel City would not have needed to pursue a cross-claim against Doster if not for the fact of a work-site injury to which the contributory negligence of Les Unland, which in turn is imputed to Marathon, indirectly contributed. The specific loss by Doster to Steel City at issue here, however, is not one as to which “it may reasonably be inferred that the parties intended to covenant against.”

Under the terms of the indemnity clause, “indemnified loss[es]” are

“all liabilities, claims, suits, actions, proceedings, damages, losses, judgments, and expenses ... that arise in any way, directly or indirectly, out of a failure by [Marathon] (including the [Marathon] Design Professionals) to: (a) carry out the Work in a safe manner; (b) strictly comply with any applicable laws, regulations, building codes, rules, or industry standards; (c) exercise reasonable care in the performance of the Work or to execute the Work in a non-negligent manner; or (d) strictly comply with the requirements of this Subcontract.”

The intent of the parties reflected in this language is for Marathon to indemnify against any loss that is imposed upon or suffered by an “indemnitee” because of or “out of a failure by [Marathon]” in any one of the above-listed respects. In other words, the trigger for the indemnity clause is wrongful conduct by Marathon that results in a loss being imposed upon an indemnitee.

Unland’s complaint alleged that both Doster and Steel City were at fault for his accident. Marathon defended and indemnified Doster for Unland’s claim against Doster because Doster was an “indemni-tee” and because Marathon believed there was a chance that its own negligence had contributed to the accident. The fact that, according to Unland’s allegation, negligence on Doster’s part also potentially contributed to the accident would not have excused Marathon from defending and indemnifying Doster because the indemnity clause provided that “Indemnitees shall not be diminished or excused merely because the negligence or other breach of a legal duty on the part of any Indemnitee also contributed to the Indemnified Loss.”

Once Unland settled his claims against Doster, however, the only claim remaining against Doster was the claim by Steel City. Significantly, that claim was a result of liability by Steel City to Unland resulting from alleged wrongdoing by Steel City itself. Doster had responsibility to indemnify Steel City for this loss only because, unlike the indemnity clause between Dost-er and Marathon, Steel City’s indemnity agreement with Doster did not require action by a particular party (i.e., negligence by the indemnitor) to trigger the agreement; it simply required Doster to “defend and indemnify [Steel City] and hold [Steel City] harmless from any and all losses, claims, costs ... and liability for personal injury or any other casualty losses ... arising from the performance of this Agreement.” (Emphasis added.) Thus, Doster undertook to defend and indemnify Steel City even where Steel City might be solely responsible for causing an injury to another; all that was required was for a personal injury or casualty to “arise[ ] from” the performance of the agreement between Steel City and Dost-er.

The Court’s decision in this case extends coverage of the indemnity clause in the contract between Marathon and Doster beyond the parameters of the parties whose behavior the contract was intended to govern. The contract between Doster and Marathon necessarily concerns the behavior of those two parties and the responsibilities each owes the other in and related to construction activities on the Oxford Automotive project work site. By the terms of the indemnity clause, Marathon agreed to indemnify Doster for Marathon’s negligence at the Oxford Automotive work site and for Doster’s negligence if that negligence occurred in conjunction with Marathon’s negligence and the negligence resulted in a loss to Doster. Doster’s other subcontractors, including Steel City, are not referenced in any way in the indemnity clause.

After Doster and Marathon executed them agreement, Doster assumed a contractual indemnity obligation to Steel City. Steel City’s cross-claim against Doster exists only because of Doster’s undertaking in that separate agreement. Marathon was not a party to that separate agreement, and the Doster-Marathon indemnity clause contains no indication that it contemplates that separate agreement.

Although the loss suffered by Steel City arguably was caused in some part by the actions of Unland and, therefore, Marathon, Doster is suffering a “loss” associated with Steel City’s loss only because of a liberal, unconditional contractual indemnity obligation Doster voluntarily assumed to Steel City. This was a contractual undertaking by Doster to which Marathon was not a party and that, for all appearing, Marathon was not aware would come into existence when it entered into its agreement with Doster. In other words, Marathon’s bargain to shoulder more than its share of responsibility as between it and Doster for their respective acts and omissions is one thing. I cannot conclude, however, that Marathon signed any agreement by which it agreed to shoulder responsibility for losses suffered by a third party, at least not without the benefit of defenses, such as contributory negligence, that would normally be available to defend against claims originating in that third party.

By making Marathon liable for the loss of Steel City at issue here only because, without any input or awareness by Marathon, Doster voluntarily took on a 100% indemnification responsibility to Steel City even when the loss is partially or fully Steel City’s fault, the Court retroactively incorporates into Marathon’s agreement with Doster an obligation not contemplated by that agreement and for which Marathon did not bargain. Marathon is not responsible for the commitment Doster made in its indemnity agreement with Steel City; accordingly, Marathon did not breach the indemnity clause in refusing to defend and indemnify Doster for Steel City’s cross-claim against Doster.

In my view, the dispositive principle in this case is the long-established and sound principle I noted at the outset: an indemnity contract should not be “extended to losses or damages neither expressly within its terms, nor of such character that it may reasonably be inferred that the parties intended to covenant against them.” Pyle v. Pizitz, 215 Ala. at 401, 110 So. at 824. I conclude that the Court’s reading and interpretation of the indemnity clause in the agreement between Doster and Marathon is not in accordance with this principle. I therefore respectfully must dissent from the Court’s conclusion on this issue.

      . Marathon alleges that a Doster employee signed the invoice the day after the accident, without knowing it contained an indemnification agreement. Doster alleges that the invoice was signed before the accident.

      . Ordinarily, indemnification for an indemni-tee’s own negligence requires “clear and unequivocal language.” Harsco Corp. v. Navistar Int’l Transp. Corp., 630 So.2d 1008, 1011 (Ala. 1993) (citing Industrial Tile, Inc. v. Stewart, 388 So.2d 171, 176 (Ala. 1980)). The indemnification clause at issue here includes the following sentence: "[Marathon's] obligation to defend and indemnify the Indemni-tees shall not be diminished or excused merely because the negligence or other breach of a legal duly on the part of any Indemnitee also contributed to the Indemnified Loss.” No issue is presented on appeal as to the adequacy of this language.

      . The "indemnitees” include the "Contractor [Doster], Owner, and Architect, and their respective directors, officers, agents, employees, successors, insurers, sureties, affiliates, and assigns.”

      . As noted in the main opinion, indemnification for an indemnitee’s own negligence ordinarily requires “clear and unequivocal language.” Harsco Corp. v. Navistar Int'l Transp. Corp., 630 So.2d 1008, 1011 (Ala. 1993) (citing Industrial Tile, Inc. v. Stewart, 388 So.2d 171, 176 (Ala. 1980)). 32 So.3d at 1283 n. 2. Doster never challenged its indemnification agreement with Steel City on this basis, however, so no issue in this regard is before us.

      .This understanding is consistent with another portion of the indemnity clause, which explains that
      "if in any proceeding initiated by a third party, there is an apportionment of the relative contributions to the Indemnified Loss by the Indemnitees on the one hand, and [Marathon] on the other, then [Marathon] shall only be required to defend and indemnify the Indemnitees to the extent of [Marathon's] proportionate contribution.”

      . The parties dispute when the indemnity agreement between Steel City and Doster was executed. Marathon alleges that a Doster employee signed the invoice containing the indemnity agreement the day after the accident in question, without knowing it contained an indemnification agreement. Doster alleges that the invoice was signed before the accident. In either event, there is no dispute that the indemnity agreement between Steel City and Doster was executed over three months after the agreement between Marathon and Doster containing the indemnity clause was executed.

      . The one-page document is separate from Doster’s contract with Steel City, and Doster’s contract with Steel City is not in the record. Aside from the paragraph provided above concerning indemnification, the one-page document appears to be a work-order form acknowledging that on July 18 and 19, 2003, Steel City employees worked 11 hours of overtime "test loading” an overhead crane.