author: COBB, Chief Justice.

text:
    LPP MORTGAGE, LTD. v. Emmitt H. BOUTWELL, Sr., et al.
    1080265.
    Supreme Court of Alabama.
    Oct. 23, 2009.

      Rodney E. Nolen, Charles R. Driggars, and Meaghan E. Ryan of Sirote & Per-mutt, P.C., Birmingham, for appellant.
    Joel Lee Williams, Troy, for appellees.
   COBB, Chief Justice.

The facts underlying this appeal are as follows. Boutwell Lumber Company, Inc., executed a note in the amount of $750,000 to ITT Small Business Finance Corporation (“ITT”) on April 15, 1991; the note was secured by a mortgage. The transaction was executed through the offices of the United States Small Business Administration (“SBA”). Emmitt H. Boutwell, Sr., and his wife Jamie P. Boutwell, and Emmitt H. Boutwell, Jr., and his wife Cindy S. Boutwell (hereinafter referred to collectively as “the defendants”) executed guaranty agreements funded by the SBA to ITT providing that they would pay the liabilities arising from any default on the note by Boutwell Lumber Company. ITT later assigned the two guaranties to Farmers Exchange Bank, which, on June 14, 1994, assigned them to the SBA.

In 1995, Boutwell Lumber defaulted on the note and declared bankruptcy. A portion of the outstanding principal of the note was paid by the sale of the facilities and equipment of Boutwell Lumber, but debt in excess of $680,000 remained. In 1996, the SBA began communications and correspondence with the defendants to settle the outstanding debt, and the SBA agreed to forbear the pursuit of its remedies on the note during the settlement negotiations. By October 1998, the SBA had offered to release from personal liability Mr. and Mrs. Boutwell, Sr., for $60,000, and to release from personal liability Mr. and Mrs. Boutwell, Jr., for $15,000. On February 19, 1999, the SBA sent Mr. and Mrs. Boutwell, Jr., a letter that stated, in pertinent part:

“Another five (5) months have passed and we still have not received any information from you concerning a payment plan to have your residence and guaranty/liability released from SBA’s mortgage and Note.
“Our last letter addressed to you dated October 1, 1998, did not produce any plan or correspondence from you.
“It has become mandatory that we take some kind of action to recover this debt. “If we have not received a written plan for repayment of the recommended settlement of $15,000.00 by March 1, 1999, we must exercise our options to liquidate the remaining collateral.”

On that same date the SBA sent a letter to Mr. and Mrs. Boutwell, Sr., that was identical in all respects except that the settlement amount reflected was $60,000. Before the end of February 1999, the defendants offered payment plans for the settlement of the debt; the senior Bout-wells proposed to pay $200 monthly and the junior Boutwells proposed to pay $250 monthly. The record does not reflect that the SBA took any further action against the defendants. In August 2000, the SBA sold the loan instruments to LPP Mortgage, Ltd. (“LPP”), and LPP subsequently contacted the defendants in May 2001 concerning their obligations. The record shows that the defendants made some payments on their respective payment plans in 2001 and early 2002, but no payment exceeded $15 and most payments were in the amount of $1. There is no indication that the proposed settlement amounts were ever paid in full.

On April 29, 2005, LPP sent letters to the defendants demanding payment, pursuant to their original guaranties, of the outstanding debt and interest in an amount of over $1,000,000. On August 5, 2005, LPP sued the defendants seeking enforcement of the guaranties. The matter was tried before the trial court without a jury on May 29, 2008, and evidence was presented ore tenus. The trial court issued its judgment on June 12, 2008. In pertinent part, that judgment states:

“Both Count One and Count Two of the Complaint seek to enforce the Guaranty Agreements. No issue, other than that involving the Guaranties, is before the Court.
“The Court further finds that the guaranty by the Defendants was specific to ITT Small Business Finance Corporation, its successors and assigns. Such guaranty, as reflected in [LPP’s] Exhibits 6 and 7, was indeed assigned by ITT Small Business Corporation to Farmers Exchange Bank. The Guaranties, as reflected on the face of said Exhibits 4 and 5, were again assigned. The second assignment was accomplished by way of an endorsement, on the face of the instruments, from Farmers Exchange Bank to Small Business Administration. However, no further assignment, transfer or endorsement of the Guaranties was offered into evidence.
“Therefore, on its face, it appears that the named Plaintiff, LPP Mortgage, Ltd., lacks privity to the Guaranties as to the named Defendants.
“The Court further finds that at least as early as February 19, 1999, if not earlier, the Small Business Administration, who then held the note, communicated to the Defendants regarding their obligation pursuant to the Guaranties.
“[LPP’s] Exhibits 30 and 31 evidence that the Small Business Administration delivered to Defendants a demand and ultimatum to perform the obligations of the Guaranties. The Small Business Administration’s use of the terms ‘mandatory that we take some kind of action’ and ‘we must exercise our options’ make it clear that such communication could have been for no other logical purpose than to call upon defendants for performance of the Guaranty obligations.
“The Guaranties are simple contracts, not under seal, and are therefore governed by § 6-2-34, Code of Alabama, 1975, as to the statute of limitations. Such statute limits actions to commence within six years of accrual.
“Defendants’ obligations to perform arose when the note went into default. However, the action on such obligation would not have accrued, for purposes of the statute of limitations, until such time as the Lender, obligee of the Guaranties, made written demand. Such demand was made at least as early as February 19, 1999 as reflected in [LPP’s] Exhibits 30 and 31. (Such demand, and action accrual, may have commenced even earlier when reviewing [LPP’s] Exhibits 24, 25, 26, 27, 28 and 29.) Thus, the Lender became time-barred to commence an action on the Guaranty subsequent to February 19, 2005. This action was filed almost six months later on August 5, 2005. Accordingly, even if [LPP] is construed to have standing to bring the action, the action was time-barred.
“Therefore, on its face, it appears that the named Plaintiff, LPP Mortgage, Ltd., lacks privity and standing to bring the action. Furthermore, even if [LPP] is construed to have standing to bring the action, the same was time-barred. The Court reaching these conclusions does not find it necessary to address the other issues and defenses raised in this matter.”

LPP appealed, arguing that the trial court erred (1) in determining that the guaranties had not been assigned to it and (2) in finding that LPP’s action on the guaranties was barred by the statute of limitations.

Our standard of review is well settled:

“ ‘In reviewing a trial court’s findings of fact based on ore tenus evidence, this Court presumes those findings to be correct.’ Hensley v. Poole, 910 So.2d 96, 100 (Ala.2005). ‘Nevertheless, this principle is not applicable where the evidence is undisputed, or where the material facts are established by the undisputed evidence.’ Salter v. Hamiter, 887 So.2d 230, 234 (Ala.2004); see also Kershaw v. Kershaw, 848 So.2d 942, 949 (Ala.2002). Furthermore, ‘on appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).”

Lucky Jacks Entm’t Ctr., LLC v. Jopat Bldg. Corp., 32 So.3d 565, 568 (Ala.2009).

Initially, we consider whether the trial court’s determination that no assignment of the guaranties was made from the SBA to LPP so that LPP has no contractual privity with the defendants upon which to base its claims. The record shows that the guaranties were assigned by separate instruments from ITT to Farmers Exchange Bank and that the second assignment from Farmers Exchange Bank to the SBA was effectuated by an endorsement appearing on the original guaranties. However, when it delivered the loan instruments to LPP, the SBA did not make a separate assignment of the guaranties to LPP. The SBA did, however, specifically assign the note and the mortgage securing the note, and it did deliver the guaranties to LPP. The mortgage assignment states, in pertinent part:

“Together with such other documents, agreements, instruments and other collateral that evidence, secure or otherwise relate to Assignor’s right, title or interest in and to the Mortgage and/or the Note, including without limitation the title insurance policies and hazard insurance policies that might presently be in effect.”

The defendants contend, without citation to legal authority, that the trial court correctly determined that the absence of an explicit assignment of their guaranties means that LPP cannot assert any claims with respect to the guaranties.

LPP argues that the above-quoted language from the mortgage assignment is sufficient to effect the assignment of the guaranties under the general law of assignments recognized in Alabama.

“There are no formal requirements for an assignment, and ‘an assignment may be written, parol, or otherwise.’ Baker v. Enfaula Concrete Co., 557 So.2d 1228, 1280 (Ala.1990). The court must look to the substance of the assignment rather than to its form to determine whether there has been an assignment. See id. There has been an assignment (1) if the assignor intended to transfer a present interest in the subject matter of the contract, id., and (2) if the assignor and the assignee mutually assented to the assignment. See 6A C.J.S. Assignments § 73 (2004). An assignment is construed in accordance with the law of contracts. Dill v. Blakeney, 568 So.2d 774, 778 (Ala.1990).”

DeVenney v. Hill, 918 So.2d 106, 113 (Ala.2005). LPP also supplied the affidavit testimony of William Scott, a loan officer for Beal Service Corporation who participated in LPP’s acquisition of the loan instruments from the SBA and who testified that the note and guaranty agreements were “transferred and assigned” to LPP. We recognize that under DeVenney, supra, and Baker v. Enfaula Concrete Co., 557 So.2d 1228 (Ala.1990), whether an assignment has occurred is a question of fact as to which the trial court’s finding is presumed correct. Under the facts of this case, however, the lack of a separate written assignment of the guaranties by the SBA to LPP is not evidence of a lack of intent to assign those guaranties, particularly in light of the actual delivery of the guaranties, accompanied by the general language of the mortgage assignment that it “included such other documents that secure the assignor’s interest in the mortgage and note.” Moreover, we are aware of the general rule that an assignment of a debt passes to the assignee any security for the payment thereof, and a guaranty passes with the assignment of a note. See, e.g., 38 Am.Jur.2d Guaranty § 33 (2009). Accordingly, we conclude that the SBA’s delivery of the guaranties to LPP along with the other loan instruments and the general language of assignment were sufficient to constitute an assignment and operate to vest LPP with all the SBA’s rights to recover on those loan instruments. Thus, the trial court’s holding that LPP lacked privity to the guaranties on which to bring this action was incorrect.

The trial court also held, however, that LPP’s action was barred by the six-year limitations period of Ala.Code 1975, § 6-2-34. LPP argues that the trial court erred in so holding because, it says, its assignment came from the SBA and is therefore subject to the federal limitations period of 28 U.S.C. § 2415(a). In support of its argument, LPP asserts the rationale set out in UMLIC VP LLC v. Matthias, 364 F.3d 125 (3d Cir.2004). In that case, the plaintiff UMLIC VP LLC was the assignee of a loan and mortgage created in the Virgin Islands and originally secured by the SBA. When UMLIC VP LLC sought to foreclose the mortgage, the defendant debtors interposed various defenses, including the limitations period enacted by the Territory of the Virgin Islands. The court stated:

“Having settled that mortgage foreclosure is an independent action under Virgin Islands law, we must determine the statute of limitations applicable to such an action when it is brought by an assignee of the United States. UMLIC claims that an assignee stands in the shoes of the assignor — here the United States — and thus that the federal limitations periods apply to it as they would if the United States itself brought a foreclosure action. We agree, and join every other appellate court to consider the issue. Three cases in particular command our attention: Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo.1994); United States v. Thornburg, 82 F.3d 886 (9th Cir.1996); and FDIC v. Bledsoe, 989 F.2d 805 (5th Cir.1993). We briefly discuss each of them.
“In Tivoli Ventures, the question arose in the context of whether an as-signee could sue on the United States’ (unexpired) cause of action, or was limited to an antecedent (and now-expired) cause of action. There, the FDIC as receiver of a failed bank had assigned to a private party a note held by the bank. The parties did not dispute that the FDIC’s cause of action accrued only when the bank was placed in receivership, not when the note first came overdue, hence the FDIC’s claim expired later. The private party sued to collect on the note, and was met with the argument that the action was barred by Colorado’s six-year limitations period, which started to run from the date the note was overdue. The private party plaintiff argued that as the assignee of the FDIC, it was entitled to the six-year limitations period in 28 U.S.C. § 2415 that started to run from the time the bank was put into receivership. The Colorado Supreme Court agreed, holding that the private-party assignee of the FDIC stood in the shoes of the United States.
“Like the case before us, Thornburg involved the guarantor-mortgagor’s liability when a corporation defaulted on an SBA-backed loan. The guarantee and mortgage were first assigned to a private party, and then assigned back to the SBA which brought the case. The mortgagor argued that the state statute of limitations ran out on the note while it was in the hands of the private party, and thus that the action by the SBA was time barred as well because a transfer (back) to the United States cannot revive a time-barred cause of action. See FDIC v. Hinkson, 848 F.2d 432, 434 (3d Cir.1988) (‘If the state statute of limitations has expired before the government acquires a claim, it is not revived by transfer to a federal agency.’). The Court of Appeals for the Ninth Circuit held that the federal statute applied. After discussing (and approving) cases that hold that an assignee of the United States stands in the shoes of the United States, the Thornburg Court ultimately rested its holding on the fact that the assignment to the private party was only for collection purposes (referred to by some courts as a ‘consignment’), and the United States never divested itself of the note. See Thornburg, 82 F.3d at 891-92. This may make Thornburg a more compelling case for application of federal limitations law than this case, because in the case before us now, title to the mortgage has passed to UMLIC.
“Bledsoe’s facts are between Tivoli Ventures and Thornburg. Like Tivoli Ventures, Bledsoe involved a note that first came to the United States as receiver (the FSLIC) in an S & L insolvency. The note was assigned to a private party (unlike Thornburg, this seems to have been a true sale, and not a consignment) and then (via another insolvency) back to the United States as receiver. Like Thornburg, the defendant asserted that the four-year state statute of limitations ran on the note while it was in private hands, and could not thereafter be resuscitated by transfer to the United States. The Court of Appeals for the Fifth Circuit held that the six-year federal statute applied to the note while it was in the hands of the assignee of the United States, and thus concluded that the cause of action had not expired.
“Thornburg lists as adhering to this rule a number of state courts and federal district courts, in addition to the Courts of Appeal for the Fifth and Ninth Circuits; it notes only one contrary decision, Wamco, III, Ltd. v. First Piedmont Mortgage Corp., 856 F.Supp. 1076 (E.D.Va.1994). See Thornburg 82 F.3d at 890-91. Since 1996, when Thornburg was decided, the Court of Appeals for the Tenth Circuit has joined this group. See UMLIC-Nine Corp. v. Lipan Springs Dev. Corp., 168 F.3d 1173 (10th Cir.1999). We too now join the majority view.
“In view of the thorough discussions in Tivoli Ventures, Bledsoe, and Thorn-burg, we simply summarize what we regard as the best doctrinal and public policy reasons for the rule that the as-signee of the United States stands in the shoes of the United States and is entitled to rely on the limitations periods prescribed by federal law. Doctrinally, an assignee stood in the shoes of the assignor at common law, and the Uniform Commercial Code provides that ‘[tjransfer of an instrument ... vests in the transferee any right of the transfer- or to enforce the instrument.’ UCC § 3-203(b). Moreover, the Restatement (Second) of Contracts § 336 cmt. b, ex. 3 explains that A lends money to B and assigns his right to C. C’s right is barred by the Statute of Limitations when A’s right would have been.’ We see no reason that the inverse should not hold as well. In public policy terms, affording assignees of the United States the same rights as the United States is desirable because it improves the marketability of instruments held by the United States, thereby giving the United States greater flexibility in monetizing its claims.”

364 F.3d at 131-33 (footnote omitted; emphasis added).

In this case it is uncontrovert-ed that this loan transaction originated under the auspices of the SBA; that the guaranties are SBA documents; and that the guaranties were specifically assigned to the SBA. “Where the government acquires a derivative claim, whether by assignment, subrogation, or by other means, and that claim is not then barred by the state statute of limitations, the state statute ceases to run against the government at the time of such acquisition.” United States v. Sellers, 487 F.2d 1268, 1269 (5th Cir.1973). Alabama law is long settled that an assignee stands in the shoes of the assignor. Ocwen Loan Servicing, LLC v. Washington, 939 So.2d 6 (Ala.2006); Green Tree Fin. Corp. v. Channell, 825 So.2d 90 (Ala.2002); and May v. Mathers, 233 Ala. 654, 172 So. 907 (1937). Accordingly, in light of that authority and the rationale of UMLIC VP LLC, we conclude that LPP, the assignee of the SBA, stands in the shoes of the SBA for the purposes of asserting its claim on the guaranties and that those claims are subject to the limitations period in the federal statute, 28 U.S.C. § 2415(a).

Section 2415(a) states, in pertinent part:

“[E]very action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later: Provided, that in the event of later partial payment or written acknowledgment of debt, the right of action shall be deemed to accrue again at the time of each such payment or acknowledgment....”

The defendants argue that even under this statute, LPP’s action is time-barred because, they say, the claims on their guaranties accrued at the time they defaulted on the note, in 1995. In this assertion, however, the defendants are incorrect. The guaranties state:

“In case the Debtor shall fail to pay all or any part of the Liabilities when due, whether by acceleration or otherwise, according to the terms of said note, the Undersigned, immediately upon the written demand of Lender, will pay to Lender the amount due and unpaid by the Debtor as aforesaid, in like manner as if such amount constituted the direct and primary obligation of the Undersigned.”

As the trial court correctly determined, and in light of the plain language of the guaranties, the cause of action on the guaranties did not accrue until a written demand was made. Even if the trial court is correct in determining that the SBA made written demand on the guaranties in February 1999 when it was attempting to settle with the defendants concerning their obligations under the note and guaranties, LPP’s claims are not time-barred under 28 U.S.C. § 2415(a). The record shows that the defendants made payments on the debt secured by the guaranties in various months between March 2001 and January 2002. Thus, under 28 U.S.C. § 2415(a), LPP’s cause of action accrued as late as those months, and the instant action was filed in August 2005, within the six-year limitations period.

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

REVERSED AND REMANDED.

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

      . The note and guaranties display “U.S. Small Business Administration” in their headings with a text box showing "SBA Loan number [omitted ]."


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. William D. CORNELIUS III and Billy W. Thompson, Colbert County Revenue Commissioner).
    1080927.
    Supreme Court of Alabama.
    Oct. 23, 2009.

      Jim R. Ippolito, Jr., chief counsel, and Jason A. Trippe, asst, counsel, Alabama Department of Transportation; and William Tipton Johnson, Jr., deputy atty. gen., Tuscumbia, for petitioner.
    William D. Cornelius IV, Tuscumbia, for respondent William D. Cornelius III.
   BOLIN, Justice.

The State of Alabama petitions this Court for a writ of mandamus directing the Colbert Circuit Court to enter an order dismissing, on the basis of sovereign immunity, the counterclaim for inverse condemnation filed by William D. Cornelius III.

I. Background

On January 25, 2008, the State, acting by and through the Alabama Department of Transportation, filed in the Colbert Probate Court a petition for condemnation of a portion of property owned by Cornelius and on which Colbert County claimed a lien for ad valorem taxes. Cornelius filed an answer. Ultimately, the Colbert Probate Court entered a judgment condemning the property. Cornelius appealed to the Colbert Circuit Court.

On February 23, 2009, Cornelius filed a motion in the Colbert Circuit Court to amend his answer filed in the probate court to assert a counterclaim against the State alleging inverse condemnation. The State moved to dismiss the inverse-condemnation claim based on the constitutional immunity of the State. See Ala. Const. 1901, § 14 (“the State shall never be made a defendant in any court of law or equity”). Without conducting a hearing, the Colbert Circuit Court denied the State’s motion to dismiss Cornelius’s inverse-condemnation claim, allowing the claim to stand. The State then filed this petition for a writ of mandamus requesting this Court to enter an order, directing the Colbert Circuit Court to dismiss Cornelius’s inverse-condemnation claim. This Court ordered the parties to limit their arguments to the issue of sovereign immunity. We grant the petition and issue writ.

II. Standard of Review

“A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).”

Ex parte Butts, 775 So.2d 173, 176 (Ala.2000). This Court has held that “a petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.” 775 So.2d at 176.

III. Discussion

In its brief to this Court, the State, relying primarily on Ex parte Alabama Department of Transportation, 978 So.2d 17 (Ala.2007) (“Good Hope ”), argues that the Colbert Circuit Court had no alternative but to dismiss the inverse-condemnation claim because the claim was solely against the State. See Ex parte Carter, 395 So.2d 65, 68 (Ala.1980) (actions for inverse condemnation are to be “brought against State officials in their representative capacity”).

In regard to suing a State agency, this Court in Good Hope stated:

“This Court has long held that ‘ “ ‘the circuit court is without jurisdiction to entertain a suit against the State because of Sec. H of the Constitution.’”’ Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 364 (Ala.2001)(quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432, 435 (Ala.2001), quoting in turn Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971)). ‘[A]n action contrary to the State’s immunity is an action over which the courts of this State lack subject-matter jurisdiction.’
“This Court has repeatedly held that § 14, Ala. Const.1901, ‘affords the State and its agencies an “absolute” immunity from suit in any court.’ Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004); see also Ex parte Mobile County Dep’t of Human Res., 815 So.2d 527, 530 (Ala.2001)(‘Pursuant to § 14, Ala. Const, of 1901, the State of Alabama and its agencies have absolute immunity from suit in any court.’); Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala.2000) (‘Under Ala. Const, of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state....’). This absolute immunity from suit also bars suits for relief by way of mandamus or injunction. Ex parte Troy Univ., 961 So.2d 105, 110 (Ala.2006).”

Good Hope, 978 So.2d at 21-22.

This Court has recognized several categories of actions that are not barred by § 14:

“There are four general categories of actions which ... we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation.... Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.”

Drummond Co. v. Alabama Dep’t of Transp., 937 So.2d 56, 58 (Ala.2006).

In other words, an inverse-condemnation action must be brought against a State official in his or her official capacity. Ex parte Carter, supra. See also Alabama Dep’t of Corr. v. Montgomery County Comm’n, 11 So.3d 189, 194 (Ala.2008) (the category of actions that are not barred by § 14 are “relevant only as they relate to claims against State officials in their official capacities, not as they relate to the State agency or the State itself’).

In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 840 (Ala.2008), this Court clarified that those categories of actions that are not barred by § 14, e.g., inverse-condemnation actions, are sometimes referred to as “exceptions” to § 14:

“These actions are sometimes referred to as ‘exceptions’ to § 14; however, in actuality these actions are simply not considered to be actions ‘ “against the State” for § 14 purposes.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). This Court has qualified those ‘exceptions,’ noting that ‘ “[a]n action is one against the [Sjtate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiffs recovery of money from the [Sjtate.” ’ Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004)(quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala.Civ.App.1995))(em-phasis in Jones).”

IV. Conclusion

We agree with the State that because Cornelius’s counterclaim alleging inverse condemnation named solely the State as a defendant, the Colbert Circuit Court lacked subject-matter jurisdiction to entertain the counterclaim and had no alternative but to dismiss it. “[A] complaint filed solely against the State or one of its agencies is a nullity and is void ab initio .... Any action taken by a court without subject-matter jurisdiction — other than dismissing the action — is void.” Montgomery County Commission, 11 So.3d at at 192.

Based on the foregoing, we hold that the Colbert Circuit Court does not have jurisdiction over the asserted counterclaim and that it must be dismissed.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs in the result.

      . Colbert County's Revenue Commissioner, Billy W. Thompson, was named as a defendant.


author: STUART, Justice.

text:
    JEFFERSON COUNTY et al. v. Dan WEINRIB, as the duly elected tax assessor of Jefferson County.
    1081529.
    Supreme Court of Alabama.
    Oct. 23, 2009.
    Charles S. Wagner, Theodore A. Lawson, and French A. McMillan, asst, county attys., Birmingham, for appellants.
    Michael G. Kendrick and Susan J. Walker of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellee.
   STUART, Justice.

Jefferson County and the members of the Jefferson County Commission (hereinafter referred to collectively as “the County”) appeal the judgment entered by the Jefferson Circuit Court prohibiting the County from reducing the budget of Dan Weinrib, the duly elected tax assessor of Jefferson County, or from reducing the number of hours employees in Weinrib’s office are authorized to work. We reverse and remand.

I.

On January 12, 2009, the Jefferson Circuit Court, in a separate action styled Jessica Edwards v. Jefferson County, CV-07-900873, entered an order holding that the business-license and occupational taxes then being levied by Jefferson County were unlawful because Act No. 406, Ala. Acts 1967, which authorized the levy of those taxes, had been repealed in 1999 by Act No. 99-669, Ala. Acts 1999. Jefferson County appealed that decision; however, while the case was pending on appeal, the County also began planning ways to reduce spending because, if the trial court’s decision in Edwards was upheld on appeal, the County would not receive approximately $75 million in revenues it had included when preparing its budget for the 2008-2009 fiscal year. Section 11-8-3, Ala. Code 1975, mandates that “appropriations made in the [county] budget shall not exceed the estimated total revenue of the county available for appropriations.”

As part of its cost-cutting plan, the County, on March 11, 2009, requested that all elected officials and department heads prepare plans for reducing their respective budgets by 33%. On June 16, 2009, the County adopted a resolution reducing the workweek of all eligible employees from 40 hours to 32 hours, and, on June 30, 2009, the County adopted a resolution reducing appropriations by 33% for the remainder of the fiscal year. On July 21, 2009, the County, needing to reduce spending even further, announced a plan to place a substantial number of county employees on administrative leave without pay for the period from August 1, 2009, to September 11, 2009.

As a result of these measures, the budget for the tax assessor’s office was reduced from $892,980 to $819,309, and 10 employees in that office were to be placed on administrative leave without pay. On July 31, 2009, Weinrib filed the underlying action in the Jefferson Circuit Court seeking a declaratory judgment, a preliminary and permanent injunction, and a writ of mandamus and/or a writ of prohibition to block the County from reducing the budget of the tax assessor’s office or from reducing the number of hours worked by any of the employees in that office by placing those employees on administrative leave. Weinrib alleged that, by statute, he was entitled to $5,967,131 for the 2008-2009 fiscal year through May 31, 2009, in commissions based upon the dollar value of taxes collected by the tax collector for Jefferson County and that the County had wrongfully withheld that money. The County filed a response to Weinrib’s action, arguing that he was paid by salary and that, therefore, any statutes providing that county tax assessors were entitled to commissions based on taxes collected did not apply to him.

The trial court held an evidentiary hearing on August 5, 2009, and that same day entered an order declaring that Weinrib was entitled to receive the $5,967,131 in commissions that he claimed he was due. However, the trial court also held that that amount exceeded the $892,000 necessary to fully fund the tax assessor’s office. It therefore did not award Weinrib the full $5,967,181; instead, it issued a permanent injunction prohibiting the County from reducing Weinrib’s budget from its original $892,000 or from reducing the number of hours worked by any of the employees in Weinrib’s office. The County appeals.

II.

The first issue presented in this appeal is one of statutory construction; accordingly, we review de novo the trial court’s judgment on that issue. Whitehurst v. Baker, 959 So.2d 69, 70 (Ala.2006) (“Because the issues presented by these appeals concern only questions of law involving statutory construction, the standard of review is de novo.”) (citing Taylor v. Cox, 710 So.2d 406 (Ala.1998)).

The statute at the center of this dispute is § 40-4-2, Ala.Code 1975, which provides, in relevant part:

“The tax assessor shall be entitled to receive from the tax collector, out of the first money collected by him, giving duplicate receipts therefor, one of which receipts shall be forwarded to the Comptroller by the tax collector, the following commissions: In counties where the collections, not including taxes on real estate bid in by the state at tax sales and taxes which would be due on property except for the provisions of the law exempting homesteads from state taxes, do not exceed $12,000, the rate shall be 10 percent on the first $5,000, five percent on the next $4,000 and four percent on the remainder. The commission herein provided for is to be calculated on collections for real property and personal property, except motor vehicles, for the general fund of the state and county. In counties where collections, not including taxes on property bid in by the state at tax sales and taxes which would be due on property except for the provisions of the presently applicable law exempting homesteads from state taxes, exceed $12,000, the commission shall be as above declared up to $12,000, and one and one-half percent on the remainder up to $15,000, and one percent on the remainder above $15,000. The commissions for assessment of taxes on motor vehicles for the general fund of the state and county shall be calculated on the same basis and at the same rate as provided for the assessment of taxes on real property and personal property other than motor vehicles for the general fund of the state and county. The amount of the commission on taxes which would be due on property except for the provisions of the presently applicable law exempting homesteads from state taxes shall inure to the benefit of the General Fund of the state only and shall be covered into the State Treasury to the credit of said fund. He shall also be entitled to receive two percent on all collections made by the tax collector of special taxes, whether such special taxes are levied for the state or county, to be paid out of such special taxes. The tax assessor shall receive two percent commission on all special county or district taxes levied for school purposes, but he shall not receive such commissions on such special school taxes unless he has properly apportioned such special taxes.”

Weinrib argues that, under the clear language of this statute and based upon the dollar value of the taxes collected in Jefferson County, he is entitled to $5,967,131 in commissions for the period from October 1, 2008, through May 31, 2009.

The County, however, argues that Wein-rib is not entitled to any commissions under § 40-4-2 because he is paid a salary and, the County argues, § 40-6A-6, Ala. Code 1975, enacted by the legislature in 1982, specifically provides that “[a]ll fees, commissions, allowances, or other compensation heretofore collected by or paid to officials on a fee basis of compensation shall hereafter be paid into the general fund of their respective counties.” The County argues that the legislature’s intent in enacting this statute — that county tax and revenue officials no longer receive any fees or commissions once they become salaried employees — is echoed in other statutes, including § 40-4-3, Ala.Code 1975, and § 1-3-6, Ala.Code 1975. Section 40-4-3 provides:

“In all counties where the tax assessor is paid on a salary instead of a fee basis, all fees allowed under the terms of this title shall by said tax collector be paid into the county treasury, or to such officials performing the duties of county treasurer.”

Section 1-3-6 provides:

“In all counties and cities where officials are paid on a salary basis instead of a fee basis, all fees required under the terms of this Code to be paid to or collected by such officials shall be paid by said officials into the treasury of the county or municipality or to the official performing the duties of county treasurer or municipal treasurer except as otherwise provided by law.”

The County acknowledges that, in accordance with its interpretation of these statutes, it uses the commissions to which Weinrib claims to be entitled to fund the general costs of government.

We agree with the County that, upon consideration of these statutes, Wein-rib is not entitled to any commissions under § 40-4-2. “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). In doing so, this Court must give the words in a statute their “plain meaning.” Id. Moreover, statutes concerning the same subject matter are to be read in pari materia and should be construed together to ascertain the meaning of each. Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003). Weinrib emphasizes that § 40-4-2 unambiguously states that “[t]he tax assessor shall be entitled to receive ... the following commissions” and argues that no further analysis is necessary because, he notes, when used in a statute, “[t]he word ‘shall’ is clear and unambiguous and is imperative and mandatory.” Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998). However, such an interpretation of § 40-4-2 would require us to ignore the plain language of § 40-6A-6, § 40-4-3, and § 1-3-6.

The principles that guide us in construing statutes require us “to harmonize them as much as practical.” Peebles v. Mooresville Town Council, 985 So.2d 388, 394 n. 5 (Ala.2007). Doing so in this case compels us to conclude that the commission schedule set forth in § 40^1-2 still has a field of operation insofar as there may be counties whose tax assessors are not paid on a salary basis; however, it has no application in those counties in which the tax assessors receive a salary. This interpretation gives effect to all the relevant statutes and, contrary to Weinrib’s assertion, does not require a holding that § 40-4-2 has been repealed by implication when “[r]epeal by implication is not favored.” City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159, 162 (1909).

Moreover, we note that our interpretation of these statutes today finds support in previous caselaw on this subject. In Jefferson County v. Waldrop, 207 Ala. 606, 608, 93 So. 540, 541 (1922), Justice Gardner, although dissenting from the ultimate holding reached by the Court, provided the following background on the transition from a fee basis of compensation for certain Jefferson County officials to a salary basis:

“It is a matter of common knowledge that in some of the larger counties of this state the fee system was considered an evil, and particularly so in Jefferson county, and in order for that county to eliminate the fee system then in vogue for its officers an amendment to the Constitution was adopted, known as the Jefferson county salary amendment, which by its terms gave to the Legislature a discretion in regard to the fixing of compensation of the county officers of that county. This amendment was adopted in November, 1912, and pursuant thereto the Legislature of 1915 passed a salary bill for the officers of Jefferson county. It was a local act, applicable alone to that county. The first section of this act expressly states that the compensation of these officers should be changed, and that they should be paid an annual salary in lieu of all other compensation, fees, or emoluments. We quote from section 1 the following:
‘“That the method and basis of compensation of the following officers of Jefferson county, to wit, the sheriff, the judge of probate, the tax collector, the tax assessor, the clerk of the circuit court, the clerk of the criminal court, and register in chancery of said county be changed, and that said officers be paid an annual salary, which shall be paid to and received by said officers in lieu of all other compensation, fees or emoluments.’ (Italics supplied [in Waldrop ].)
“... Section 2 of the act reads as follows:
“ ‘That when this act goes into effect, the cost, charges of courts, fees and commissions now authorized by law to be collected and retained by the several officers of Jefferson county above named, shall continue to be collected, but shall be paid into the county treasury by the officer collecting the same, as other moneys belonging to the county are paid.’ ”

We agree with Justice Gardner that the transition to compensating tax assessors by salary instead of fees and commissions was an effort “to eliminate the fee system.” All the relevant statutes support the conclusion that the fee system and the salary system of compensation are mutually exclusive and that, where the salary system has been adopted, the fee system ceases to exist. Accordingly, because he is paid by salary, Weinrib has no claim to the $5,967,131 in commissions to which he says he is entitled under § 40-4-2.

III.

Weinrib nevertheless argues that we should still affirm the judgment of the trial court because, he says, the County has failed to provide him with the means necessary for the “proper and efficient conduct” of his office, as required by § 40-6A-5, Ala. Code 1975, and, he claims, he is accordingly unable to fulfill his statutory duties. See Wilson v. Athens-Limestone Hosp., 894 So.2d 630, 634 (Ala.2004) (“[T]his Court can affirm a trial court’s judgment for any reason, even one not specifically given by the trial court.”). Section 40-6A-5 provides:

“The governing bodies of each of the counties of this state shall provide the tax assessor [and other enumerated tax and revenue officials] with such office personnel, clerks, and deputies, and such quarters, books, stationery, furniture, equipment, and other conveniences and supplies as may be necessary for the proper and efficient conduct of such offices.”

After holding an evidentiary hearing at which ore tenus evidence was presented, the trial court concluded that Weinrib was entitled “so much of the § 40-4-2 ‘commissions’ as is necessary to fund his office in the manner that he, as Tax Assessor, determines is necessary to timely and conscientiously satisfy the duties imposed upon him by Alabama law....” The trial court then prohibited the County from reducing Weinrib’s budget from $892,000, thus implicitly finding that the County needed to budget at least $892,000 for the tax assessor’s office in order for the County to be in compliance with § 40-6A-5. Because the trial court made that finding after hearing ore tenus evidence, that finding is entitled to a presumption of correctness, and we will not disturb it “unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997).

At the evidentiary hearing held on August 5, Weinrib was asked by his attorney if he could perform the duties of his office in a proper and efficient manner with the funding then in place, and he replied, “[a]bsolutely not.” Weinrib specifically identified two statutory duties he claimed he would be unable to perform if the reduction to his budget and workforce was not reversed:

“Q: Now, Mr. Weinrib, can you tell the court what statutory duties you have that are required to be performed between now and October 1?
“A: Well, sure. We have coming up the abstract, which the abstract is required by [§ 40-7-35, Ala.Code 1975,] that we provide in triplicate form to the State Revenue, State Finance and Tax Collector so that the Tax Collector can begin officially making tax collection payments.
“Q: What is the abstract?
“A: The abstract contains detailed information broken down by tax district for state, county, each municipality with millage, each school board that receives property tax, the summary of assessment values in each tax district as well as the exemptions amounts and then the bottom line net taxes assessed due. And we are required by law to provide that to the Collector.
“Q: When are you required to provide that abstract?
“A: We are required to provide it — I think it’s either the second Monday or the second Tuesday in August. We’re required to provide it this month.
“Q: With your present staffing and funding, will you be able to complete that obligation?
“A: No, sir.
“Q: Is [the abstract requirement] provided by [§ ] 40-7-35, the Code of Alabama?
“A: Yes, sir.
“Q: What other functions are you required to perform between now and October 1?
“A: We are required to provide affidavits. We call them Act 48 cards that are homestead exemption re-verification cards. We have over 41,000 homestead residents who by virtue of age and/or income or total and permanent disability, have applied and received a homestead exemption that gives them an additional break off of their property taxes. And we are required by law to provide them an affidavit to reverify that they remain qualified. Obviously, when you have 41,000, that’s a lot to do. It takes preparatory work to send them out, because they have to be reaffirmed starting either October 1, then we run it through December 31st. We have to do a trial run of the mailing, which is typically done at the beginning of September, followed by the actual printing with the assistance of [information technology support] by the middle of September. And anyway, the production of that has now been affected adversely.
“Q: Let me show you Plaintiffs Exhibit 13.
“A: Yes, sir. It is an example of an Act 48 card from the 2009 tax year which we sent out last fall. We mailed cards like this out at the end of September of 2008 so that people received them by October 1, and they would be due by December 31st.
“Q: To verify?
“A: To reverify their continued eligibility of this homestead exemption.
“Q: If that’s not accomplished, are they able to receive the homestead exemption?
“A: It’s made more difficult. It cannot be done in a timely manner.
“Q: Are there any other functions that you have to perform before October 1 other than your normal daily duties?
“A: Those are two of the most critical ones.”

However, on cross-examination, the County elicited testimony from Weinrib indicating that, in fact, the County’s actions reducing his budget and workforce would not impede him from completing these two tasks by the required deadlines:

“Q: So in what way are you saying that the County specifically ran afoul of [§ 40-6A-5] in your complaint?
“A: I am saying that they ran afoul with that section because they deprived my office of conveniences.
“Q: What conveniences were those?
“A: Conveniences in personnel. As far as the conveniences, the County has knocked out my ability to complete the 2009 abstract. They have knocked out my office’s ability to—
“Q: Let me stop you. You said conveniences. What conveniences did the County knock out?
“A: They knocked out the assistance to my office in the form of [information technology] support that specifically helps my office to be able to efficiently get the abstract done as well as the preparation of the Act 48 cards.
“Q: When you say convenience, that did not — that doesn’t hamper your office from the ability to complete it, does it?
“A: It does hinder. The ability to — we are unable to get the 2009 abstract done.
“Q: How are you unable to do that? You said this was due — didn’t you mention August?
“A: Right.
“Q: August what? You said the second week in August, right?
“A: Right. Next week.
“Q: Second week in August. These [10] folks were placed on administrative leave as of this week?
“A: As of Saturday.
“Q: So you’re not saying that your office just got started working on this this week, are you?
“A: No.
“Q: All right. Now, my question to you is, specifically, what has happened in your loss of staff for one week that’s going to prevent this report of requirement from going forward? Tell us specifically, this person is responsible for doing this and they’re not here. Tell me what critical role these folks play that is now going to be lacking in this one week that will prevent you from getting this out.
“A: The assessment staff is not — does not prepare the abstract report, but my office does. Other people in my office do.
“Q: I’m sorry. You said the assessment portion of your office doesn’t prepare this?
“A: Correct.
“Q: And the assessment portion are those individuals that were placed on administrative leave; is that correct?
“A: That is correct.
“Q: So then, getting back to my question where I asked you what roles did these individuals that were placed on administrative leave play in your completing this project, your answer would be no?
“A: Correct.
“Q: Now, you mentioned another statutory duty that you were unable to complete as a result of this reduction in force. That was the blue cards; is that right?
“A: The Act 48 cards.
“Q: This is performed by what division of your staff?
“A: My assessment staff.
“Q: And that is due to be completed by December 81 st; is that correct?
“A: Yes, sir.
“Q: And you mentioned about [the] fiscal year. When does the fiscal year begin for the County?
“A: October 1.
“Q: Was it your understanding that the reason for this reduction was because the County was unable to meet payroll during this fiscal year?
“A: That is my understanding, yes, sir.
“Q: So it is uncertain as to the status of the budget in the next budgeting cycle based on the dilemma that we are facing with the occupational tax; is that correct?
“A: That is correct.
“Q: But certainly, the basis for this reduction was due to the inability to make payroll during this fiscal year?
“A: Correct.
“Q: And the fiscal year begins in October?
“A: Correct.
“Q: So as to the status of your staffing after October 1st, you could be fully reinstated or partially. You don’t know, do you?
“A: We don’t know.
“Q: But you do know for sure that the next deadline that you have a statutory responsibility to complete is December 31st; right?
“A: Correct.
“Q: You started off with 16 folks [in the assessment division]; right?
“A: Right.
“Q: All right. You had 10 of those people that were placed on administrative leave; right?
“A: Right.
“Q: And it's your understanding that they were placed on administrative leave because of the situation with the budget and the inability to pay those folks during this fiscal year; is that correct?
“A: Yes.
“Q: So it is not your understanding that this is a permanent situation, is it?
“A: It’s not — that’s my understanding it’s not a permanent situation, but it can be.
“Q: Therefore, you cannot testify with certainty that your office will be in this same condition after October 1st, can you?
“A: I can’t.
“Q: All right. And it’s your testimony that you cannot complete your task that you have to complete by December 31st with the level of staffing that you have presently; is that correct?
“A: Correct.
“Q: But since you don’t know what level of staffing you will have come December 31st, you can’t say with certainty that you can’t complete that task in December?
“A: As things stand now, we cannot complete that task. On December 31st, I cannot say. And also, on October 1, I won’t be the Tax Assessor anyway. It will be someone else.
“Q: So it is uncertain at the time whether the task on December 31st can be completed; is that right?
“A: It’s uncertain.”

Reviewing Weinrib’s testimony in its entirety, we cannot agree that it supports the finding that a reduction to his $892,000 budget for the 2008-2009 fiscal year or the concomitant reduction to his staff would make it impossible for him to properly and efficiently complete his duties, thus placing the County in violation of § 40-6A-5. It will no doubt make it a more difficult task for Weinrib and his successor, but there is no evidence that would indicate that the task is overly difficult or impossible. We therefore decline to affirm the trial court’s judgment on the basis that the ordered reductions would violate § 40-6A-5.

IV.

The trial court held that Weinrib was entitled to receive certain commissions by virtue of § 40-4-2. Because those commissions exceeded the amount originally budgeted by the County for the tax assessor’s office for fiscal year 2008-2009, the trial court prohibited the County from reducing that budgeted amount either by directly reducing the funds made available to the tax assessor’s office or by reducing the number of hours the employees in the tax assessor’s office were allowed to work. However, because the judgment of the trial court was based on an erroneous interpretation of § 40-4-2 and because Weinrib is not, in fact, entitled to any commissions under that statute, the judgment of the trial court is hereby reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WOODALL, BOLIN, and MURDOCK, JJ., recuse themselves.

      . This Court subsequently affirmed the trial court's judgment. See Jefferson County Commission v. Edwards, 32 So.3d 572 (Ala.2009).

      . The tax assessor’s office consists of two divisions — the Mapping and Reappraisal Division and the Assessment Division. However, because the Mapping and Reappraisal Division is funded by the State, its budget and personnel were not affected by the County's cost-cutting measures.

      . Weinrib and the County have both indicated that Weinrib's budget was originally set at $892,980, not $892,000 as stated by the trial court. There is no explanation given for the discrepancy.

      . The County also argues that the courts have no power to entertain Weinrib's challenge to its action reducing his budget. In support of this argument, the County quotes O’Rear v. Sartain, 193 Ala. 275, 288, 69 So. 554, 558 (1915):
      “A court of equity, at the suit of a taxpayer, may restrain by injunction the misappropriation of county funds by county officials: but no power exists in a court of equity to compel county commissioners in the exercise of their discretion in the conduct of the county’s business. When a court of equity undertakes to review the action of boards of revenue or courts of county commissioners, a question of jurisdiction is presented; and unless the jurisdictional facts are alleged, and the charge thereon is made of fraud, corruption, or unfair dealing, jurisdiction of the subject-matter is not acquired.”
      However, although courts generally do lack jurisdiction to review the discretionary actions of county commissioners, the County fails to recognize that O'Rear is inapplicable in this case because Weinrib is alleging that he was entitled to the claimed commissions by statute and that the County had no discretion to withhold those commissions from him.

      . In § 40-6A-2, Ala.Code 1975, the legislature set forth a statewide minimum salary schedule for certain county officials, including tax assessors. However, that schedule became effective in each county only if the schedule was approved by the governing body of the county. See Hamilton v. Walker County, 521 So.2d 34, 35 (Ala.Civ.App.1987) (“There can be no doubt that the plain and natural meaning of the above-quoted language is that county approval is a prerequisite to the application of § 40-6A-2's amended compensation schedule to a county's tax officials.”). It is not clear from the record how many of this State’s counties, if any, still have tax assessors who are compensated on a commission basis under the fee system.