author: WOODALL, Justice. BOLIN, Justice

text:
    Bob RILEY et al. v. Luther S. PATE IV.
    1071003.
    Supreme Court of Alabama.
    July 3, 2008.
    Rehearing Denied Aug. 15, 2008.

      Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellants.
    William N. Slaughter, A. Lee Martin, Kirk D. Smith, and James W. Porter III of Haskell Slaughter Young & Rediker, LLC, Birmingham; and Thomas T. Gallion III and Jaime A. Johnston of Haskell Slaughter Young & Gallion, LLC, Montgomery, for appellee.
   WOODALL, Justice.

Governor Bob Riley, State Treasurer Kay Ivey, Finance Director James Allen Main, and Comptroller Robert L. Childree (hereinafter referred to collectively as “the officials”) appeal from a preliminary injunction entered against them in an action filed by Luther S. Pate IV. The officials argue, in pertinent part, that Pate does not have standing to maintain the action. We agree. Consequently, we vacate the preliminary injunction, dismiss the action, and dismiss this appeal.

I. Factual Background

This dispute arose following this Court’s decision in Exxon Mobil Corp. v. Alabama Department of Conservation & Natural Resource, 986 So.2d 1093 (Ala.2007). That decision affirmed a judgment entered against Exxon Mobil (“the company”) insofar as it awarded certain compensatory damages for the underpayment of oil and gas royalties owed to the State of Alabama by the company under offshore leases. On remand, the Montgomery Circuit Court entered a final judgment in the amount of $121,511,231. Of that amount, $58,174,033 were compensatory damages for the underpayment of oil and gas royalties. The remaining $63,337,198 represented 12% interest due under § 9-17-33, Ala.Code 1975, and § 8-8-10, Ala.Code 1975. The company paid the judgment, and the officials were responsible for allocating the proceeds to the appropriate State funds.

At the center of this dispute is Amendment No. 450 to the Alabama Constitution of 1901, which established the Alabama Trust Fund (“the Trust Fund”). The Trust Fund receives and manages 99% of the oil and gas capital payments derived from the State’s offshore leases for the production of oil, gas, or other hydrocarbons. The remaining 1% is paid to the Lands Division of the Department of Conservation. Once the oil and gas capital payments are deposited into the Trust Fund, the board of trustees of the Trust Fund is responsible for investing the oil and gas capital payments for the purpose of “produc[ing] the greatest trust income over the term of such investments while preserving the trust capital.” Amendment No. 450, § 5(b). Ten percent of the trust income must be reinvested in the Trust Fund. Amendment No. 450, § 4(c). The remaining income, which includes all interest and dividends, as well as up to 75% of capital gains, is paid directly into the general fund and, subject to two conditions, is “subject to appropriation and withdrawal by the legislature.” Amendment No. 450, § 5(a). In any year in which the income of the Trust Fund exceeds $60 million, 10% of the income must be distributed to the Municipal Government Capital Improvement Fund and 10% must be distributed to the County Government Capital Improvement Fund. See § 219.04, Ala. Const.1901 (formerly Amend. No. 666, Ala. Const. 1901). Also, 10% of each year’s trust income, not to exceed $15 million, must be distributed to the Alabama Forever Wild Land Trust. See § 219.07, Ala. Const. 1901 (formerly Amend. No. 543). The current balance of the Trust Fund is approximately $3 billion.

Nine trustees serve on the board of trustees of the Trust Fund. Those trustees include the governor, who serves as chairman; the finance director, who serves as vice chairman; and the state treasurer, who serves as secretary. Three other trustees are appointed by the governor; two others by the lieutenant governor; and another by the speaker of the house of representatives. See Amendment No. 450, § 3(a)-(f).

After the company paid the amount of the judgment, Finance Director Main requested an opinion from the attorney general concerning the proper allocation of the proceeds between the general fund and the Trust Fund. Consistent with a written opinion of the attorney general, the officials deposited the compensatory damages for the underpayment of oil and gas royalties, less attorney fees and costs, into the Trust Fund. Also consistent with that opinion, they deposited the interest received into the general fund.

Pate, an Alabama citizen and taxpayer, filed a “Complaint for Declaratory Judgment and Injunctive Relief and Petition for Writ of Mandamus” in the Montgomery Circuit Court, challenging the deposit of the interest into the general fund. He requested declaratory relief, mandamus relief, and preliminary and permanent in-junctive relief that would require the officials to move the interest from the general fund to the Trust Fund. Pate filed a motion for a preliminary injunction, and the officials responded to the motion. Also, the officials filed a motion to dismiss. In both their response and their motion, the officials raised the issue of Pate’s standing to bring the action.

On April 10, 2008, the trial court held a hearing on Pate’s motion for a preliminary injunction. Pate presented no evidence at the hearing. On April 15, without addressing the issue of Pate’s standing, the trial court granted the requested preliminary injunctive relief and ordered the officials “to immediately transfer into the ... Trust Fund all monies received as part of the Exxon final judgment, less appropriate legal fees, that have not been heretofore paid into such trust fund.” The officials timely appealed to this Court. See Rule 4(a)(1)(A), Ala. R.App. P.

II. Discussion

“When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999). Action taken by a trial court lacking subject-matter jurisdiction is void. 740 So.2d at 1029. Of course, “a void order or judgment will not support an appeal.” Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008).

“[Standing turns on whether the party has suffered an actual injury and whether that injury is to a legally protected right.” Carey v. Howard, 950 So.2d 1131, 1135 (Ala.2006). A “ ‘ “mere ‘interest in a problem[,]’ no matter how longstanding the interest and no matter how qualified the [plaintiff] is in evaluating the problem, is not sufficient by itself to render the [plaintiff] ‘adversely affected’ or ‘aggrieved’ so as to establish standing.”’” Ex parte Richardson, 957 So.2d 1119, 1125 (Ala.2006) (quoting Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1260 (Ala.2004) (See, J., concurring specially)). Instead, an “actual or imminent, particularized, concrete, and palpable injury ... is required for a showing of standing.” Town of Cedar Bluff, 904 So.2d at 1261 (See, J., concurring specially).

“ ‘The right of a taxpayer to challenge^ either as unconstitutional or as not conforming to statute,] the unlawful disbursement of state funds ... is unquestioned.’ ” Hunt v. Windom, 604 So.2d 395, 396 (Ala.1992) (quoting Zeigler v. Baker, 344 So.2d 761, 764 (Ala.1977)). However, recent decisions have emphasized that “ ‘it is the liability to replenish public funds that gives a taxpayer standing to sue.’” Jordan v. Siegelman, 949 So.2d 887, 891 (Ala.2006) (quoting Broxton v. Siegelman, 861 So.2d 376, 385 (Ala.2003)).

The Trust Fund is, insofar as its purposes are concerned, no different than a charitable trust. See § 19-3B-405(a), Ala.Code 1975 (“A charitable trust may be created for the relief of poverty, the advancement of education ..., the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.”). Also, the uncertainty of the ultimate recipients of the income from the Trust Fund closely resembles a common characteristic of a charitable trust. See Neal v. Neal, 856 So.2d 766, 780 (Ala.2002). “ ‘[B]enefieia-ries with a sufficient special interest in the enforcement of a charitable trust can institute a suit as to that trust.’ ” Rhone v. Adams, 986 So.2d 374, 377 (Ala.2007) (quoting Jones v. Grant, 344 So.2d 1210, 1212 (Ala.1977)). However, “mere potential beneficiaries, whose interest is no greater than the interest of all the other members of a large class of potential beneficiaries of a charitable trust, have no standing to maintain an action for the enforcement of the trust.” Rhone, 986 So.2d at 377 (emphasis added).

With these principles in mind, we turn to the issue of Pate’s standing to insist that the interest on the compensatory-damages award that was deposited in the general fund be transferred to the Trust Fund. Pate alleges that he has standing both as a taxpayer and as an intended beneficiary of the Trust Fund to challenge the deposit of the moneys to the general fund. However, it is clear that he has no standing in either capacity.

Pate’s claim of standing as a taxpayer must fail, because the Trust Fund receives no tax revenue; it is funded only from royalties from the production of oil and gas under offshore leases. Consequently, as Pate admits, no taxpayer is liable to replenish any shortfall that might occur in the Trust Fund. The absence of any such liability defeats a claim of taxpayer standing. See Jordan and Broxton, supra. In attempting to distinguish Jordan, Pate argues that “Jordan simply does not control in a situation such as this, where a member of the class being benefitted by a trust is bringing suit to protect the capital of that trust from mismanagement.” Pate’s brief, at 21-22. Although this argument is relevant to Pate’s claim of standing as an intended beneficiary of the Trust Fund, it is irrelevant to his claim of standing as a taxpayer.

We now turn to Pate’s claim of standing as an intended beneficiary of the Trust Fund. As stated in Amendment No. 450, § 1, the Trust Fund was created “[f]or the continuing benefit of the state of Alabama and the citizens thereof.” Thus, according to Pate, he, as does “each and every” Alabama citizen, has a “vested right” in the moneys derived from the assets of the Trust Fund. Pate’s brief, at 20, 24. Pate admits that the Alabama Constitution does “not promise that any amount of trust-generated funds will be spent on projects that personally benefit [him] to a degree greater than other Alabama citizens.” Pate’s brief, at 27. However, according to Pate, “any citizen of the State of Alabama is a beneficiary of the ... Trust Fund [and] has standing to bring suit to prevent the mismanagement of that trust.” Pate’s brief, at 25. We disagree.

It is obvious that Pate does not allege that he has suffered the “actual or imminent, particularized, concrete, and palpable injury,” which is necessary to support a finding of standing. Town of Cedar Bluff, 904 So.2d at 1261. Although Pate may be a member of the community to be benefited by the Trust Fund, he cannot demonstrate a “sufficient special interest in [its] enforcement [to entitle him] to institute a suit as to that trust.” Rhone, 986 So.2d at 377. Indeed, his arguments belie any contention that his interest is “special” in any way. By his own admission, Pate’s interest is no greater than that of millions of other Alabamians, all of whom may benefit, directly or indirectly, from the expenditure of the income derived from the assets of the Trust Fund. “ ‘It is well established that persons are not entitled to sue if their only benefit from the enforcement of the trust is that shared by other members of the public.’ ” Hicks v. Dowd, 157 P.3d 914, 920 (Wyo. 2007) (quoting In re Clement Trust, 679 N.W.2d 31, 37 (Iowa 2004)).

In support of his argument that he has standing as a beneficiary of the Trust Fund, Pate likens his status to that of the plaintiff in Lee v. Bronner, 404 So.2d 627 (Aa.1981). In that case, this Court held that a “contributing member of the [State] Employees’ Retirement System” had standing to bring an action alleging “dereliction of duty and statutory violations concerning the retirement fund.” 404 So.2d at 629. However, unlike Pate, the member had “contributed his own money to the retirement fund,” and, thus, had a “direct pecuniary interest” in the management of the fund. Id. Indeed, Pate’s situation is more analogous to that of the plaintiff in Knutson v. Bronner, 721 So.2d 678, 680 (Ala.1998), in which this Court held that “a taxpayer who is not a member of the [Retirement Systems of Aabama] has [no] standing to bring an action against [its] chief executive officer.”

In conclusion, Pate asks: “Finally, who would have standing to bring suit if not Pate or some other similarly situated citizen?” Pate’s brief, at 28. The officials argue that the direct beneficiary of 1% of the oil and gas capital payments — i.e., the Lands Division of the Department of Conservation — would suffer “the first and most quantifiable injury,” State’s brief, at 30, and that the funds constitutionally entitled to receive portions of the income from the Trust Fund would also be injured. Pate does not contest the standing of these entities; instead, he merely questions the strength of their incentives to sue the officials. His doubts about their incentives in no way cloak Pate with standing that otherwise cannot be established. Athough Pate may be quite interested in what he perceives to be a problem, he has no standing to sue the officials under the facts of this case.

III. Conclusion

For the foregoing reasons, the preliminary injunction entered against the officials is vacated, and the action filed by Pate is dismissed. Further, because a void order will not support an appeal, this appeal is dismissed.

ORDER VACATED; ACTION DISMISSED; AND APPEAL DISMISSED.

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

BOLIN, J., concurs specially.

SEE, J., concurs in the result.

BOLIN, Justice

(concurring specially).

The main opinion states that “[t]he Trust Fund is, insofar as its purposes are concerned, no different than a charitable trust.” 3 So.3d at 839. Inasmuch as Amendment No. 450 (now § 219.02, Aa. Const. 1901 (Off.Recomp.)) creates an express trust that is not a private trust, I agree that the Aabama Trust Fund is in the nature of a charitable trust. I write specially to comment that, notwithstanding the fact that Pate in this action alleged and argued only that he had standing as a taxpayer and/or as a beneficiary of the Trust Fund, there remains the question of what person or entity would have standing to enforce the trust as a settlor.

A settlor is defined in § 19-3B-103(16), Ala.Code 1975, as

“a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person’s contribution except to the extent another person has the power to revoke or withdraw that portion.”

(Emphasis added.) Assuming that the oil and gas capital payments obligated to the trust res or trust capital are being “contributed” by the State of Alabama, that accounts for only one of the possible types of potential settlors embraced in the definition above.

The Trust Fund was created not by legislative act, but rather, by the ratification of Amendment No. 450 by the citizens/electors of the State. Amendment No. 450 begins by stating: “For the continuing benefit of the state of Alabama and the citizens thereof, there is hereby created an irrevocable, permanent trust fund named ‘the Alabama trust fund’ which shall be funded and administered in accordance with the provisions of this amendment”; it ends by stating that “[t]his amendment shall be self-executing .... ” (Emphasis added.) The legislative act proposing Amendment No. 450 was wholly ineffectual until it was given life by the electorate — the legislature can propose a constitutional amendment, but cannot ratify one. See In Re Opinion of the Justices No. 92, 252 Ala. 89, 39 So.2d 665 (1949), and Gafford v. Pemberton, 409 So.2d 1367 (Ala.1982). I would submit that the Trust Fund is an express trust created by the citizens of the State of Alabama and funded by the sale of State assets, so that both the citizens and the State are joint settlors of the trust.

Contrary to the Restatement (Second) of Trusts, § 391 (1959), the Uniform Trust Code, in § 19-3B-405(c), Ala.Code 1975, specifically provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” (Emphasis added.) The question is therefore posed: Who has the authority, and attendant standing, to carry out the power of enforcement conferred by this section with regard to the Trust Fund? A trustee is a fiduciary and has a fiduciary’s obligation to marshal and take possession of all assets that properly belong to the trust res. Section 19-3B-809, Ala.Code 1975, directs that “[a] trustee shall take reasonable steps to take control of and protect the trust property.” Section 19-3B-812 further directs that “[a] trustee shall take reasonable steps to compel a ... person to deliver trust property to the trustee. ...” These sections from the Uniform Trust Code combine to grant the settlor of a charitable trust the right to maintain a proceeding to compel a negligent or recalcitrant trustee to take control of trust property, and, if necessary, to compel a person to deliver trust property to the trust. In addition to the right of a trust beneficiary who has enforcement standing by virtue of an “actual or imminent, particularized, concrete, and palpable injury,” Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1261 (Ala.2004) (See, J., concurring specially), the legislature clearly granted an additional right to a sole or joint settlor of a charitable trust to enforce that trust; unfortunately, however, the legislature was not as clear in setting out what person or entity actually possesses that standing as a settlor.

Notwithstanding any ability Pate may have had to bring suit as a settlor to enforce the trust, either as a member of the citizenry who created the trust or as a representative of the same, it could not have been successful. A suit to enforce a trustee’s duty must be brought against the trustees of the trust. In this action, Pate sued only three of the nine trustees of the Trust Fund — the governor, the finance director, and the state treasurer, both in their official capacities and as trustees of the Trust Fund. Therefore, even assuming that Pate would have standing as a settlor, there would have been a failure to name indispensable parties to the action.

      . Although Amendment No. 450 has been incorporated into the Alabama Constitution of 1901 as § 219.02, for ease of reference, we will continue to refer to § 219.02 throughout this opinion as Amendment No. 450.


source: Caselaw Access Project

author: SEE, Justice.

license: Public Domain

text:
    Ex parte A.S. (In re L.S. v. A.S.).
    1071104.
    Supreme Court of Alabama.
    Aug. 15, 2008.
    J. Barry Abston, Huntsville, for petitioner.
    William K. Bell, circuit judge, as respondent.
   SEE, Justice.

The Madison County Juvenile Court entered a pendente lite order granting L.S. (“the great-grandmother”) temporary emergency custody of her 11-month-old great-grandson (“the minor child”). The minor child’s mother, A.S. (“the mother”), petitioned the Madison Circuit Court for the writ of mandamus seeking review of the juvenile court’s order. The circuit court concluded that it lacked jurisdiction to consider the mandamus petition, and the mother then petitioned the Court of Civil Appeals for the writ of mandamus. That court dismissed the mother’s mandamus petition as untimely filed.

The mother now petitions this Court for the writ of mandamus, asking us to review the decisions of the circuit court and of the Court of Civil Appeals, and to review other matters both pending before and already decided by the juvenile court. We deny the petition.

Facts and Procedural History

Three pleadings filed by the great-grandmother and two orders entered by the juvenile court are at issue in this case.

On February 29, 2008, the great-grandmother filed a “Motion for Emergency Ex Parte Temporary Relief,” in which she sought “emergency relief due to the dire circumstances which currently exist for the child.” Petition at exhibit A. On March 13, 2008, the great-grandmother also filed a petition for custody seeking primary physical custody of the minor child (“the custody petition”). The Madison County Juvenile Court granted the great-grandmother’s motion for emergency relief and entered an ex parte emergency pendente lite order on March 18, 2008, giving the great-grandmother emergency temporary custody of the minor child until the juvenile court could address the great-grandmother’s custody petition. The mother was served with a summons, the petition, and the pendente lite order on March 24, 2008.

On that same day, the great-grandmother petitioned the juvenile court for an “Order for Immediate Pick-up of Child” after the mother refused to allow the great-grandmother to retrieve the minor child from a neighbor who was temporarily watching the minor child. On March 27, the juvenile court entered a second ex parte order authorizing the great-grandmother to pick up the minor child.

On March 31, 2008, the mother petitioned the Madison Circuit Court for the writ of mandamus, challenging the ex parte orders entered by the juvenile court and asking that the great-grandmother’s custody petition be dismissed because, the mother argued, it failed to invoke the jurisdiction of the juvenile court. The mother argued to the circuit court that there were “simply no allegations of sufficient gravity as to justify the entry of the [pen-dente lite] order” and, further, that the custody petition also should be dismissed because it “did not allege dependency or any other allegation sufficient to invoke the juvenile court’s jurisdiction.” Petition at exhibit B. On April 8, 2008, the circuit court dismissed the mother’s mandamus petition “for lack of subject matter jurisdiction.” Petition at exhibit D.

The following day, the mother petitioned the Court of Civil Appeals for the writ of mandamus. She argued that the circuit court had erred when it dismissed her mandamus petition. She reiterated that the ex parte orders entered by the juvenile court had not been supported by allegations that justified the orders and that the great-grandmother’s custody petition should have been dismissed because, the mother argued, it failed to invoke the limited jurisdiction of the juvenile court. On April 22, 2008, the Court of Civil Appeals, by order, dismissed the mother’s mandamus petition as untimely, citing Ex parte Fiber Transport, L.L.C., 902 So.2d 98 (Ala. Civ.App.2004).

The mother now petitions this Court for the writ of mandamus. She argues, as she did below, that the ex parte orders entered by the juvenile court were unsupported by allegations that justified the relief granted and that the great-grandmother’s custody petition should be dismissed because, the mother argues, it fails to invoke the limited jurisdiction of the juvenile court. She also argues that both the circuit court and the Court of Civil Appeals erred in dismissing her previous mandamus petitions.

Discussion

A. Standard of Review

“The writ of mandamus is an extraordinary legal remedy. Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala.1993). Therefore, this Court will not grant mandamus relief unless the petitioner shows: (1) a clear legal right to the order sought; (2) an imperative duty upon the trial court to perform, accompanied by its refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the Court. See Ex parte Wood, 852 So.2d 705, 708 (Ala.2002).”

Ex parte Davis, 930 So.2d 497, 499 (Ala. 2005).

“ ‘A decision of a court of appeals on an original petition for writ of mandamus or prohibition or other extraordinary writ (i.e., a decision on a petition filed in the court of appeals) may be reviewed de novo in the supreme court....’” Ex parte Sharp, 893 So.2d 571, 573 (Ala.2003) (quoting Rule 21(e)(1), Ala. R.App. P.). “If an original petition for extraordinary relief has been denied by the court of appeals, review may be had by filing a similar petition in the supreme court (and, in such a case, in the supreme court the petition shall seek a writ directed to the trial judge) .... ” Rule 21(e)(1), Ala. RApp. P. “Such review in the supreme court of a grant or denial must be commenced by filing the petition in the supreme court within fourteen (14) days of the grant or denial of the writ by the court of appeals.” Rule 21(e)(2), Ala. R.App. P. The mother filed her petition for the writ of mandamus in this Court pursuant to Rule 21(e)(1) on May 6, 2008, 14 days after the Court of Civil Appeals had dismissed her petition. Thus, the mother’s petition is timely, and we proceed to review de novo the decision of the Court of Civil Appeals.

B. Analysis

In this case, the mother petitioned the Court of Civil Appeals for the writ of mandamus following the circuit court’s dismissal of her petition. The Court of Civil Appeals, without an opinion, dismissed the mother’s mandamus petition as untimely, citing in its order of dismissal Ex parte Fiber Transport, L.L.C., 902 So.2d 98 (Ala. Civ.App.2004). The mother argues that her mandamus petition in the Court of Civil Appeals was not untimely. However, even if the mother’s mandamus petition in the Court of Civil Appeals was timely, we nonetheless conclude that the mother was not entitled to the writ because she did not demonstrate a “lack of another adequate remedy.” Ex parte Davis, 980 So.2d at 499.

Although a petition for the writ of mandamus is a proper avenue by which to challenge a pendente lite order, an appeal, not a petition for the writ of mandamus, is the proper avenue for challenging a circuit court’s disposition of a petition for the writ of mandamus. See § 12-22-6, Ala.Code 1975 (“Appeals may be taken to the appropriate appellate court from the judgment of the circuit court on application for wilts of certiorari, supersedeas, quo warranto, mandamus, prohibition, injunction and other remedial writs as provided by the Alabama Rules of Appellate Procedure .... ”). See also Ex parte Ropchock, 510 So.2d 855, 856 (Ala.Crim.App.1987) (“ ‘Appeals may be taken to the appropriate appellate court from the judgment of the circuit court on application for writs of ... mandamus ... as provided by the Alabama Rules of Appellate Procedure.’ A judgment dismissing a petition for the writ of mandamus is appealable.”).

After the circuit court dismissed the mother’s mandamus petition, she was entitled to appeal that decision under § 12-22-6, Ala.Code 1975. “It is well settled in this jurisdiction that mandamus will not lie when there is a remedy by appeal, and the writ cannot be used as a substitute for appeal.” Echols v. Housing Auth. of Auburn, 377 So.2d 952, 953 (Ala.1979). Therefore, we conclude that even if the mother’s petition for the writ of mandamus was timely, she was not entitled to the writ because she has not demonstrated a “lack of another adequate remedy.” Ex parte Davis, 930 So.2d at 499.

Conclusion

For the foregoing reason, we deny the mother’s petition for the writ of mandamus.

PETITION DENIED.

COBB, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . The great-grandmother did not file a brief in response to the mother's petition in this Court.

      . Section 12-15-153, Ala.Code 1975, provides:
      "The court may enter a protection or restraint order on an emergency basis, without prior notice and hearing, upon a showing of verified written or oral evidence of abuse or neglect injurious to the health or safety of the child and the likelihood that such abuse or neglect will continue unless the order is issued. If an emergency order is issued, a hearing, after notice, must be held within 72 hours or the next judicial business day thereafter, to either dissolve, continue or modify the order.”

        See also K.S. v. G.A.B., 911 So.2d 1085, 1097 (Ala.Civ.App.2005) ("Both Ala.Code 1975, § 12-15-60(a), ... and Ala.Code 1975, § 12-15-153, ... require a trial court to hold a 72-hour hearing when a child is summarily removed from parental custody.”). The mother does not address these statutes, and she does not explain why she was not served with the pendente lite order until 6 days after it was entered or why, apparently, no hearing was held within 72 hours.

      . In its order of dismissal, the Court of Civil Appeals provided only the bare citation to Ex parte Fiber Transport. In Ex parte Fiber Transport, the court noted that the time period for filing a petition for the writ of mandamus is not tolled by the filing of postjudgment motions and that the issue of timeliness of a petition for the writ of mandamus is disposi-tive.

      . The mother’s petition for the writ of mandamus was filed in this Court on May 6, 2008.

      . "A petition for mandamus pursuant to Rule 21, Ala. R.App. P., and not an appeal, is the proper mechanism available to a party who deems himself or herself aggrieved by a pen-dente lite custody order ...." Trevino v. Blinn, 897 So.2d 358, 361 (Ala.Civ.App.2004). See also G.B. v. State Dep't of Human Res., 959 So.2d 1116, 1119 (Ala.Civ.App.2006) (" ‘As this court has stated before, whether to grant a pendente lite order is in the trial court’s discretion, and our review of the trial court’s exercise of such discretion is by way of a petition for the writ of mandamus, because a pendente lite order is not a final judgment. Sizemore v. Sizemore, 423 So.2d 239, 241 (Ala.Civ.App.1982).’ " (quoting P.B. v. P.C., 946 So.2d 896, 898 (Ala.Civ.App. 2006))).


author: SMITH, Justice.

text:
    THE WATERWORKS AND SEWER BOARD OF THE CITY OF SELMA v. Geraldine ALLEN and Samuel Randolph.
    1061648.
    Supreme Court of Alabama.
    Aug. 15, 2008.
    Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, Selma; and April England-Albright of The Justice Group, Inc., Atlanta, Georgia, for appellant.
    John W. Kelly III of Kelly & Kelly, Selma, for appellee Geraldine Allen.
   SMITH, Justice.

The Waterworks and Sewer Board of the City of Selma (“the Board”) appeals from the dismissal of a declaratory-judgment action it filed against Geraldine Allen and Samuel Randolph. We reverse and remand.

Facts and Procedural History

The Board is a public corporation formed in accordance with § 11-50-310 et seq., Ala.Code 1975, for the purpose of operating a water and sewer system in the City of Selma. The Board is composed of five directors, appointed by the Selma City Council (“the City Council”), which has nine voting members. See § 11-50-313, Ala.Code 1975. Each director of the Board serves a term of six years, after initial staggered terms, or, if the director is a municipal officer, he or she serves “for the term for which he or she is appointed or during his or her tenure as a municipal officer, whichever expires first.” § 11-50-313(a), Ala.Code 1975.

The City Council appointed Randolph to serve as a director on the Board beginning in October 2000. When Randolph’s term expired in October 2006, the City Council had not appointed a successor, and Randolph continued to serve in a holdover capacity.

At a meeting of the City Council on January 22, 2007, Randolph and Allen— both of whom were voting members of the City Council — were nominated to fill Randolph’s expired position on the Board. Randolph abstained from the vote, and Allen cast a vote. Of the eight votes cast, Allen received five votes and Randolph three. The five votes cast for Allen included her own vote; thus, if Allen’s vote is not counted, she received four votes.

On February 15, 2007, the Board filed a complaint in the Dallas Circuit Court against Allen and Randolph seeking a judgment declaring, among other things, the proper person to serve as a director on the Board. The Board alleged that, by voting for herself in the City Council’s January 22, 2007, selection of a director for the Board, Allen violated § 36-25-9(c), Ala.Code 1975, a provision of Alabama’s Code of Ethics for Public Officials and Employees (“the Code of Ethics”), which provides: “No member of any county or municipal agency, board, or commission shall vote or participate in any matter in which the member or family member of the member has any financial gain or interest.” More specifically, because members of the Board are entitled to receive compensation for their service as directors, the Board contended that Allen had violated § 36-25-9(c).

The Board’s complaint noted that without Allen’s vote in the City Council’s January 22, 2007, selection of a director for the Board, Allen would have received only four votes. Relying on § 11^13-45, Ala.Code 1975, the Board then noted that, if Allen’s vote were not counted, the votes for Allen represented less than a majority of the nine-member City Council, which, it alleges, is necessary for an appointment to the Board. Section 11-43-45 provides:

“All elections of officers shall be made viva voce, and a concurrence of a majority of the members to the council shall be required, and all members of the council may vote any provision of law to the contrary notwithstanding. On the vote resulting in an election or appointment, the name of each member and for whom he voted shall be recorded.”

The Board’s complaint asserted that “the Board needs the Court to declare who is the proper person to serve and under what circumstances the person would be allowed to serve,” and the complaint asked the court to “adjudge and declare the rights and responsibilities of the parties.” The Board also asked for a judgment declaring that Allen’s action as a City Council member in voting for herself as a director of the Board was “improper” and that the January 22, 2007, election was therefore void. Finally, the Board sought an injunction prohibiting Allen from taking a seat on the Board as a director until she was “properly elected” and a declaration that Randolph should continue serving on the Board until a successor is properly elected.

At the time it filed its complaint, the Board also filed a motion for a temporary restraining order (“TRO”) to prevent Allen from taking a seat on the Board during the pendency of the Board’s action and to permit Randolph to continue to serve on the Board in a holdover capacity. On February 16, 2007, the trial court issued an injunction prohibiting both Allen and Randolph from serving on the Board during the pendency of the Board’s action.

Allen filed a motion to dismiss the Board’s action, arguing, among other things, that the Board did not have standing to enforce § 36-25-9(c), Ala.Code 1975. On June 29, 2007, after additional motions and briefs had been filed regarding Allen’s motion to dismiss, the trial court dismissed the Board’s action and dissolved the injunction it had issued on February 16, 2007. The Board filed a motion to alter, amend, or vacate the trial court’s judgment dismissing the action and dissolving the injunction. The trial court denied the postjudgment motion, and this appeal followed.

Standard of Revieiv

The trial court granted Allen’s motion to dismiss the Board’s complaint on the basis that the Board did not have standing to enforce § 36 — 25—9(c), Ala.Code 1975.

“ ‘The standard of review of the grant of a motion to dismiss ... was set out in Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993):
“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review ... is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a ... dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” ’
“Jacks v. Madison County, 741 So.2d 429, 430 (Ala.Civ.App.1999) (citations omitted). In addition, ‘[m]otions to dismiss are rarely appropriate in declaratory judgment proceedings. Such a motion does, however, serve one purpose, that of determining whether the [complaint] states the substance of a bonafide justiciable controversy which should be settled.’ Wallace v. Burleson, 361 So.2d 554, 555 (Ala.1978) (citation omitted).”

Helms v. Barbour County, 914 So.2d 825, 828-29 (Ala.2005).

Discussion

The trial court’s order dismissing the action states in relevant part:

“The substance of Count I of the Board’s complaint is that a justiciable controversy exists as to whether a proper appointment was made by the Council when Allen voted for herself. The Board alleges that Allen violated the Alabama Ethics Act, particularly Ala. Code 1975, § 36-25-9(c), which prohibits any member of any county or municipal agency, board or commission from voting or participating in any manner in which the member or family member of the member has any financial interest.
“In Count II of its complaint the Board seeks an injunction, alleging that it will suffer irreparable harm ‘if the January 22, 2007, action of the Council stands’ and that it has no adequate remedy at law.
“In its paragraph prayer for relief the Board asks this Court, inter alia: to declare the action of Allen in voting for herself to be elected to the Board ... improper and in violation of the Ethics Act; to declare the January 22, 2007, vote to be void; and to enjoin Allen from taking a seat on the Board.
“... At the outset, this Court must determine whether it has jurisdiction to entertain the Board’s complaint and to grant the requested relief. In a declaratory judgment action there must be a bona fide existing controversy of a justi-ciable character to confer jurisdiction upon the Court. The lack of a justicia-ble controversy may be raised by a motion under Rule 12, Ala. R. Civ. P. See Luken v. BancBoston Mortgage Corp., 580 So.2d 578 (Ala.1991). Allen argues the [Board] lacks standing to bring this action because the Alabama Ethics Act does not provide any private right of action. Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1027 (Ala. Civ.App.1993), cert. denied (Feb. 4, 1994) (‘We know of no cases holding that the Alabama Code of Ethics, Ala.Code 1975, §§ 36-25-1 through -30, contemplates a citizen bringing a private action against a public official for a matter falling within the purview of the Code of Ethics ....’). Moreover, the Alabama Ethics Act provides a statutory mechanism for the investigation of statements and complaints pertaining to public officials, provides that the Ethics Commission may report suspected violations of law to the appropriate law enforcement authorities and provides criminal penalties and administrative penalties for the violation of the Act. Ala.Code 1975, § 36-25-27(c), specifically vests enforcement of the chapter in the Ethics Commission and also allows the Attorney General or the district attorney for the appropriate jurisdiction to enforce provisions of the Act.
“Defendant Allen argues that to grant the Board the relief it has requested this Court must determine and adjudge that she has committed a crime in violation of the Ethics Act without the benefit of any investigation by the Ethics Commission or the involvement of any law enforcement agency or indictment or trial. This Court agrees. Granting the Board the relief it seeks would also run afoul of the provisions of Article VII § 175, of the Constitution of Alabama 1901, which provides for the removal of city officers by impeachment and which preserves the right to a jury trial, thereby allowing the Board to bypass both the enforcement provisions of the Ethics Act and the impeachment provisions of the Constitution.
“In Kid’s Care, Inc. v. Alabama Department of Human Resources, 843 So.2d 164 (Ala.2002), the Alabama Supreme Court observed that standing is an essential element of justiciability and that not all controversies, even very public ones, are justiciable. As noted in the Supreme Court’s opinion and the cases cited therein, standing turns on whether a party has been injured in fact, and whether that injury is to a legally protected right. Accordingly, when a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Since the Ethics Act confers no private right of enforcement, this Court cannot find that the Board has complained of any real and tangible injury to a legally protected right.
“Moreover, to grant the relief sought in Count II, i.e., injunctive relief, the Board must show both the existence of irreparable harm and the absence of an adequate remedy at law. In its application for a TRO, the Board defined its alleged irreparable harm as follows:
“ ‘3. There is no adequate remedy at law and unless this Honorable Court grants a temporary restraining order [the Board] will suffer irreparable harm to-wit: a person may be appointed to the [Board] who is not legally allowed to serve, and the Board could be said to have knowingly violated the Alabama State Ethics laws.’
“It is undisputed that the Board has no authority to appoint its members as that authority is vested in the Council. Therefore, this Court finds no basis from which it can conclude that the Board could knowingly violate the Alabama Ethics Act by the action taken by the Council in appointing Allen to the Board. To the extent that the Board
and its members contend that Allen’s conduct violated the Ethics Act, their remedy is the same as that possessed by every other citizen, i.e., to file a complaint with the Alabama Ethics Commission. Thereafter, the Ethics Commission, or the Attorney General or the district attorney may take such action as they deem to be appropriate.
“Accordingly, for the reasons set out herein, this Court finds that the Board lacks standing because it has failed to show the existence of a justiciable controversy. Therefore, this Court lacks subject-matter jurisdiction of this cause. The plaintiffs complaint is due to be dismissed, and this Court’s injunctive order dated February 16, 2007, is due to be dissolved.”

(Footnote and some internal citations omitted.)

The Board contends that the trial court erred in dismissing its complaint on the basis that the Board did not have standing to enforce § 36 — 25—9(c), Ala.Code 1975. The Board argues that its action is not exclusively an attempt to privately enforce the Code of Ethics. Rather, the Board contends that, more generally, it is attempting to resolve the issue whether Allen or Randolph is the appropriate director.

The Board’s complaint alleged that the City Council “attempted” to fill the vacancy on the Board created by the expiration of Randolph’s term by appointing Allen to serve as a director. Under the standard of review applicable to a ruling on a motion to dismiss, we accept that statement as true.

The Board’s complaint then alleged that there were two potential problems with Allen’s appointment. First, the Board alleged that Allen’s vote for herself violated the Code of Ethics. Second, the Board cited § 11-43-45, Ala.Code 1975, and alleged that the election process used by the City Council to fill the vacancy on the Board “may also [have been] improper since the record reveals that there was only [a] show of hands and no roll-call vote or voice record of each person’s vote.”

The trial court’s order dismissing the complaint addressed the Board’s second allegation (i.e., that the election process may have been improper because “there was only [a] show of hands and no roll-call vote or voice record of each person’s vote”) as follows:

“Although not addressed by Defendant Allen in her motions to dismiss and to dissolve the injunctive order or by the Board in response thereto, this Court notes that the [Board] has alleged in its complaint that the City Council did not follow proper procedure at its January 22, 2007, meeting when the vote to fill Randolph’s expired term was taken by show of hands rather than [viva] voce. It is apparent from the [Board’s] complaint that the vote was taken by the City Council at a regular public meeting and that the City Council members present publicly signified the person for whom they were voting by raising their hands, other than Randolph, who abstained, and that the votes were appropriately recorded. Therefore, the purpose of a voice vote was effectively met by a show of hands as opposed to a secret ballot in which the identity of a person casting a vote for a particular candidate would not be known to the public.”

As to the Board’s first objection to Allen’s election (i.e., that in voting for herself Allen violated the Code of Ethics), the trial court’s order of dismissal held (1) that enforcement of the Code of Ethics is vested in the State Ethics Commission, the attorney general, or an appropriate district attorney; and (2) that the Board therefore does not have standing to enforce § 36-25-9(c).

Thus, the trial court’s order ruled that neither of the stated objections to Allen’s election had any merit. Notably, neither the Board nor Allen has asked us to reverse the trial court’s ruling on those issues, and we express no opinion as to the correctness of the trial court’s ruling on those issues.

However, the Board’s complaint includes the following allegations:

“17. The Board is at a dilemma as it is only a five (5)-member board. The next regular meeting is set for Monday, February 19, 2007 and the issue of who selves as director is not clear. Randolph has served until the vacancy in his term has been duly elected and filled. Thus far, Allen has not attended a Board meeting and taken her seat. Allen stated that she does not intend to attend the Board meetings until the matter of her appointment is clear! The Board does not want Allen and Randolph to attend if it is not proper for either to attend and participate as it may affect the votes taken. ... If Allen’s election was not proper, then Randolph has the entitlement and the Board does not want to be in error with him.
“19. The Board needs the Court to declare who is the proper person to serve and under what circumstances the person would be allowed to serve.”

In addition, the complaint asked the court to “adjudge and declare the rights and responsibilities of the parties.”

Thus, even if the stated objections to Allen’s election as a director have no merit, the complaint alleges that a controversy exists between Randolph and Allen as to who is the proper person to serve as a director on the Board. Assuming, without deciding, that the trial court was correct in ruling that the City Council’s voting procedure was proper and that there is no private right of enforcement for alleged violations of the Code of Ethics, the complaint still alleges that the Board is faced with conflicting claims by Randolph and Allen to the same directorship.

A declaratory-judgment action is an appropriate vehicle for resolving a dispute between claimants to an appointed or elected position on a board. See, e.g., Watkins v. Board of Trs. of Alabama State Univ., 703 So.2d 335 (Ala.1997); Gilbert v. Wells, 473 So.2d 1042 (Ala.1985). In this case, the board itself1 — rather than one of the claimants to the position on the board — has initiated the action, but both of the claimants were named as parties to the action (and to this appeal). Consequently, the complaint alleges a justiciable controversy, and the trial court erred in dismissing the action.

Conclusion

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

REVERSED AND REMANDED.

COBB, C.J., and SEE, WOODALL, and PARKER, JJ., concur.

      . According to the complaint, a director of the Board is entitled to receive $800 per month in addition to compensation for actual expenses such as travel and mileage.

      . On February 13, 2007, Allen sent the following memorandum to the Board and the City Council:
      "Due to the fact I received a majority vote of consensus from the City Council to be on the [Board], I will not resign my appointment from this Board. However, to ensure that no questions arise as it relates to me receiving monetary gain, I refuse to accept any salary (not one dime) during my term on the [Board].”

      . Although Randolph apparently was served with a copy of the Board's complaint, he did not file an answer or otherwise participate in the action until after the trial court had dismissed the Board’s complaint. Randolph then filed a motion to alter, amend, or vacate the judgment. The trial court denied that motion. The Board named Randolph as an appellee to this appeal, but Randolph did not file a brief.

      . The Board's postjudgment motion, which was accompanied by a supporting affidavit from a member of the Board, asserts that both Allen and Randolph attended a meeting of the Board on July 27, 2007. The Board's motion alleged that the Board was “unable to conduct necessary business” at its July 27, 2007, meeting because, it contended, both Allen and Randolph asserted conflicting claims to the same position as a director. The Board's motion requested the trial court "to determine who is the rightful person to serve as director.”


author: BOLIN, Justice.

text:
    Kimberly BOND v. Adam PYLANT et al.
    1060568.
    Supreme Court of Alabama.
    Aug. 15, 2008.

      Robert G. Poole of Whittelsey, Whittel-sey & Poole, P.C., Opelika, for appellant.
    Phillip E. Adams, Jr., and Blake L. Oliver of Adams, Umbach, Davidson & White, LLP, Opelika, for appellees Adam Pylant and Kenneth Pylant III.
    James B. Sprayberry, Auburn, for ap-pellee the estate of Kenneth Pylant II.
   BOLIN, Justice.

Kimberly Bond appeals from the circuit court’s order dismissing her complaint for lack of subject-matter jurisdiction. We affirm.

Facts and Procedural History

Kenneth D. Pylant II died on September 5, 2005. When he died, Kenneth was married to Kimberly Bond; he had four children from a previous marriage, two of whom were minors. Subsequently, James Sprayberry, as executor of Kenneth’s estate, filed a petition in the Lee County Probate Court seeking to admit to probate a copy of Kenneth’s will, which Sprayberry alleged had been lost or destroyed. Apparently, Sprayberry, who is an attorney, had a copy of an unexecuted will he had prepared on Kenneth’s behalf, which he asserted was a copy of the will Kenneth executed. We assume that the heirs at law were notified of the petition as required by § 43-8-164 through -166, Ala. Code 1975. On November 29, 2005, the probate court held a hearing and that same day entered an order admitting the copy of the lost will to probate.

On April 26, 2006, Bond filed in the probate court a “Complaint contesting the Will.” That same day, Bond also filed in the probate court a motion to transfer the will contest to the circuit court pursuant to § 43-8-198, Ala.Code 1975. On May 2, 2006, the probate court purported to transfer the will contest to the circuit court by having someone take the file to the circuit court clerk’s office. A member of the probate court’s staff informed Bond’s counsel that there was no order of transfer. On May 30, 2006, the probate court entered an order again purporting to transfer the will contest to the circuit court.

On June 9, 2006, Bond filed a complaint in the circuit court contesting the will. On June 16, 2006, Sprayberry, as executor, along with Kenneth’s two adult children, filed an answer and moved to dismiss the complaint filed in the circuit court on the ground that the circuit court lacked subject-matter jurisdiction over the matter. On November 30, 2006, the circuit court entered an order dismissing Bond’s complaint for lack of subject-matter jurisdiction because Bond failed to file her will contest in the circuit court within six months after the will was admitted to probate as required by § 43-8-199, Ala.Code 1975. Bond timely appealed.

Standard of Review

In Newman v. Savas, 878 So.2d 1147 (Ala.2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

“A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bent-brooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.”

878 So.2d at 1148-49.

Discussion

“In Alabama, a will may be contested in two ways: (1) under § 43-8-190, Ala.Code 1975, before probate, the contest may be instituted in the probate court or (2) under § 43-8-199, Ala.Code 1975, after probate and within six months thereof, a contest may be instituted by filing a complaint in the circuit court of the county in which the will was probated.”

Stevens v. Gary, 565 So.2d 73, 74 (Ala. 1990).

In the present case, Bond did not contest the will before it was admitted to probate. Section 43-8-198, Ala.Code 1975, provides for the transfer of a will contest from the probate court to the circuit court, but this section must be read in conjunction with § 43-8-190, Ala.Code 1975. See Bardin v. Jones, 371 So.2d 23 (Ala.1979) (addressing the transfer of a will contest to the circuit court). Section 43-8-190 pertains only to a will contest filed in the probate court “before the probate thereof.” (Emphasis added.) Other than as noted in note 3, supra, the only provision for contesting a will after its admission to probate, as is the case here, is § 43-8-199, Ala.Code 1975, which states:

“Any person interested in any will who has not contested the same under the provisions of this article may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.”

(Emphasis added.)

Bond filed a will contest in the probate court, after the will had been admitted for probate, and moved the probate court to transfer the will contest to the circuit court. Under § 43-8-190, Bond was precluded from filing the contest in the probate court after the will had been admitted to probate, and therefore there was no proper contest to transfer to the circuit court pursuant to § 43-8-198. Although the probate court physically transferred the file and subsequently entered an order transferring the will contest to the circuit court, these actions are not sufficient to invoke the circuit court’s jurisdiction under § 43-8-199. “A circuit court’s jurisdiction over a will contest is statutory and limited.” Forrester v. Putman, 409 So.2d 773, 775 (Ala.1981).

In Kelley v. English, 439 So.2d 26 (Ala. 1983), the decedent’s children petitioned for the probate of his purported will, which named them as executors. The probate court admitted the will to probate. Subsequently, the decedent’s widow filed a will contest in the probate court, along with a demand that the contest be transferred to circuit court. The probate court entered a order transferring the contest to the circuit court. The children filed a motion to dismiss the will contest on the ground that § 43-1-70 (now § 43-8-190) authorized a contest before the probate of the will and § 43-1-79 (now § 43-8-199) authorized a will contest by filing a complaint in the circuit court within six months after the admission of the will to probate, and that the decedent’s widow had taken neither action. The circuit court granted the motion to dismiss. Subsequently, the widow filed an amendment to the complaint contesting the will in the circuit court. The children filed a motion to strike the amendment because there was no valid complaint to which the amendment could attach. The circuit court granted the motion; the widow appealed. This Court held that the widow did not properly file a contest in the circuit court so as to invoke that court’s jurisdiction under what is now § 43-8-199.

In order to timely contest the will after it was admitted for probate, Bond had to file a will contest in the circuit court within six months of the admission of the will to probate. Bond’s will contest filed in the probate court was a nullity because it was filed after the will was admitted to probate, and the probate court’s order purporting to transfer the file to the circuit court could not and did not confer jurisdiction on the circuit court.

Conclusion

The judgment of the circuit court dismissing Bond’s will contest for lack of subject-matter jurisdiction is affirmed.

AFFIRMED.

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

      . In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish: (1) the existence of a will; (2) the loss or destruction of the will; (3) the nonrevocation of the will by the testator; and (4) the contents of the will in substance and effect. Barksdale v. Pendergrass, 294 Ala. 526, 529, 319 So.2d 267, 269 (1975).

      . We note that Bond did not file a petition to remove the administration of the estate from the probate court to the circuit court pursuant to § 12-11-41, Ala.Code 1975, which petition could have been filed in the circuit court at any time before final settlement, after the will was admitted to probate.

      . The probate courts of Mobile, Jefferson, and Shelby Counties have concurrent jurisdiction with the circuit court to try will contests after a will has been admitted to probate based on local acts. See Act No. 974, Ala. Acts 1961, Act No. 1144, Ala. Acts 1971, and Act No. 2003-123, Ala. Acts 2003, respectively; see also Coleman v. Richardson, 421 So.2d 113 (Ala. 1982) (addressing the concurrent jurisdiction of the Mobile Circuit Court and the Mobile County Probate Court in hearing a will contest after a will has been admitted to probate).


author: WOODALL, Justice.

text:
    Ex parte MACON COUNTY GREYHOUND PARK, INC. (In re Sherry Knowles v. Macon County Greyhound Park, Inc.).
    1070798.
    Supreme Court of Alabama.
    Aug. 15, 2008.

      John M. Bolton III, Charlanna W. Spencer, and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; Fred D. Gray and Stanley Gray of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; and Alan T. Rogers, David Boyd, and Eric Getty of Balch & Bingham, LLP, Birmingham, for petitioner.
    Ted L. Mann and David M. Cowan of Mann, Cowan & Potter, P.C., Birmingham, for respondent.
   WOODALL, Justice.

Macon County Greyhound Park, Inc. (“MCGP”), petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate an order compelling MCGP to produce statements from two of its employees in an action filed against it by Sherry Knowles. We grant the petition and issue the writ.

MCGP operates a gaming facility known as VictoryLand, where Knowles is employed. On May 2, 2006, Knowles was playing an electronic bingo game at Victo-ryLand. Knowles alleges that while playing the game she hit a jackpot on the machine worth $41,800,000. According to her, the machine did not appear to be malfunctioning when the jackpot was indicated.

Shortly after the apparent jackpot, James Graham and Chris Fogarty, MCGP employees, approached Knowles. She says that they informed her that the jackpot was “not a valid win,” because, according to them, the machine had “malfunctioned.” The machine was “cleared,” and Knowles continued to play the same machine. Within a few minutes, she won a jackpot of $2,505, which MCGP paid. Knowles made no complaint concerning the earlier apparent jackpot and MCGP’s failure to pay the winnings, and the other employees prepared no report of the event or their response to it.

On May 12, 2006, MCGP received a letter from an attorney representing Knowles. The letter stated in its entirety:

“Please be advised that I represent Sherry Knowles. Please preserve all evidence relating to her winnings on or about April 24, 2006 or April 25, 2006. This would include video surveillance, evidence from computer memory and any other evidence of any kind. Also, we ask that there be no action undertaken on the machine in question that would alter or destroy any record of events occurring on April 24th or April 25th.”

The letter was seen that same day by Stanley Hubbard, the gaming director at VictoryLand. He, at that time, directed Graham and Fogarty to prepare written statements concerning their knowledge of the May 2 events involving Knowles. The employees prepared the statements on “incident report” forms and submitted them to Hubbard.

On May 16, 2006, Knowles sued MCGP. In substance, she claimed that she had been wrongfully deprived of the jackpot win of $41,800,000 and that she is entitled to recover compensatory and punitive damages. During discovery, Knowles learned of the statements prepared by Graham and Fogarty. She requested copies of those statements, but MCGP objected to their production, arguing that the statements were prepared in anticipation of litigation and, therefore, that they qualify as work-product. However, the trial court ordered the production of the statements, and MCGP then petitioned this Court for relief.

“The order challenged in this case involving alleged work product ... is reviewable [by a petition for a writ of mandamus].” Ex parte Meadowbrook Ins. Group, Inc., 987 So.2d 540, 547 (Ala.2007). However, “ ‘this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.’ ” Id. at 547 (quoting Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003)).

MCGP insists that “the employee statements here are protected from disclosure by the work-product privilege, as they were prepared in anticipation of litigation.” Petition, at 19-20. Knowles, on the other hand, argues that MCGP “has failed to carry its burden of establishing that the [statements] were done in anticipation of litigation.” Knowles’s brief, at 19. We agree with MCGP.

“Documents and tangible things otherwise discoverable, which are prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, are protected as work product and are not otherwise discoverable. See Rule 26(b)(3), Ala. R. Civ. P.” Ex parte Flowers, 991 So.2d 218, 221 (Ala.2008) (footnote omitted). In this case, MCGP objected to discovery, claiming that Graham’s and Fogarty’s statements are work-product, and Knowles sought an order compelling their production. At that time, MCGP was required to make an evidentiary showing of the elements of the work-product exception. See Meadowbrook, 987 So.2d at 548. Those elements are “ ‘ “(1) [that] the materials sought to be protected are documents or tangible things; (2) [that] they were prepared in anticipation of litigation or for trial; and (3) [that] they were prepared by or for a party or a representative of that party.” ’ ” Id. at 221 (quoting Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D.Kan. 2000)). Statements of witnesses taken in anticipation of litigation are protected by Rule 26(b)(3), Ala. R. Civ. P. Ex parte Norfolk Southern Ry., 897 So.2d 290, 292-95 (Ala.2004). “Of course, the involvement of an attorney as the person taking the statement is not a prerequisite to the qualification of the statement as work-product.” Id. at 294. However, it must be shown that “it was reasonable for the [objecting party] to [assume], in light of the circumstances [existing when the statements were taken], that litigation could be expected.” Ex paRe Alabama Dep’t of Youth Servs., 927 So.2d 805, 808 (Ala. 2005).

In support of its work-product claim, MCGP submitted an affidavit from Stanley Hubbard, the management employee who directed Graham and Fogarty to prepare their statements regarding the events of May 2. According to Hubbard, on May 2, Graham telephoned him “and informed [him] that the credit meter on a machine being played by Sherry Knowles was rolling up far in excess of the credits which can be won on that machine.” Hubbard “instructed ... Graham to notify the machine vendor technician.” He did not request that any statements be prepared concerning the incident. According to Hubbard, Knowles made no complaint regarding the events of May 2, and, “[i]f a patron does not make a complaint, [MCGP] employees do not complete an ‘incident report’ in the normal course of business.”

Hubbard’s affidavit indicates that his perception of the situation changed on May 12 when he saw the letter from Knowles’s attorney. He says that after he saw the letter he “believed that [Knowles] was about to file a lawsuit” and “expect[ed] a lawsuit to be imminent.” On that same date, he instructed Graham and Fogarty to prepare the statements at issue, “based upon [his] belief that ... Knowles was about to file a lawsuit against Victory-Land.” In light of the significant amount of the purported jackpot, as well as the attorney’s request that “all evidence” be preserved, it was certainly reasonable for Hubbard to conclude that litigation could be expected. Consequently, MCGP’s claim that the statements are work-product is well-founded.

Knowles characterizes her attorney's letter as “a nonthreatening letter requesting nothing more than preservation of information relative to her jackpot.” Knowles’s brief, at 6. According to Knowles, the letter “offered no threat of litigation.” Id. at 17. Presumably, she would have this Court hold that it was unreasonable for Hubbard to conclude that she was planning to institute legal action regarding “her jackpot.” However, such a holding would be untenable. As Hubbard reasonably concluded, legal action was likely, and, in fact, a complaint was filed only four days after the letter was received.

Knowles argues that this Court’s decision in Ex paRe Cryer, 814 So.2d 239 (Ala.2001), supports her argument that the employees’ statements are not work-product. In Cryer, we held that a defendant in

a medical-malpractice action “ha[d] not satisfied her burden of establishing that her notes [concerning the treatment of her patients] were prepared in anticipation of litigation.” 814 So.2d at 248. However, unlike the situation in this case, when the doctor in Cryer “made her notes ..., [she] did not know that [the plaintiffs] had hired an attorney.” 814 So.2d at 247. Although the plaintiffs’ attorney had written a letter requesting medical records, the doctor’s affidavit, unlike Hubbard’s affidavit, did not aver that the doctor was aware of the letter when she prepared her notes. Stated simply, MCGP carried its burden of proof through an adequate affidavit, while the defendant in Cryer did not.

“Even if the work-product privilege applies, Rule 26(b)(3), Ala. R. Civ. P., recognizes an exception when the party requesting the material can show substantial need coupled with undue hardship.” Ex parte Norfolk Southern Ry., 897 So.2d at 295. However, Knowles does not argue that this exception applies here. Indeed, she has already deposed James Graham and, when MCGP filed its petition for a writ of mandamus, she had scheduled the deposition of Chris Fogarty.

For the foregoing reasons, we hold that the trial court clearly exceeded its discretion when it ordered the production of the written statements prepared by Graham and Fogarty at Hubbard’s request. MCGP is clearly entitled to an order directing the trial court to vacate its discovery order. Thus, we grant the petition and issue the writ.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.

      1. The purported jackpot actually occurred on May 2, 2006, one week after April 25, 2006. However, neither party makes any issue of the discrepancy in the attorney's letter concerning the date.


author: MURDOCK, Justice. LYONS, Justice WOODALL, Justice

text:
    BON AVENTURE, L.L.C., and William Staggers v. CRAIG DYAS L.L.C. and Olympia Corte Dyas.
    1051679.
    Supreme Court of Alabama.
    Aug. 29, 2008.

      James Lynn Perry of Daniell, Upton, Perry & Morris, P.C., Daphne; and Constance S. Barker of Capell & Howard, P.C., Montgomery, for appellants.
    Allan R. Chason and Jessica M. McDill of Chason & Chason, P.C., Bay Minette, for appellees.
   MURDOCK, Justice.

William Staggers and Bon Aventure, L.L.C., appeal from a judgment in favor of Craig Dyas L.L.C. and Olympia Corte Dyas, Craig Dyas’s mother. We reverse and remand.

I. Facts and Procedural History

Mrs. Dyas and her husband owned a tract of land on Highway 98 in Baldwin County. In 1979, they named the' property “Bayou Volanta Commercial Park” and subdivided it into three “units.” The northern portion of the property was divided into Units 1 and 2. The southern portion of the property, measuring 6.8 acres in area, was designated as Unit 3.

In 1986, Mrs. Dyas and her husband recorded restrictive covenants on Units 1 and 2 (“the restrictive covenants”), which, among other things, prohibited construction of more than “one permanent building for housing professional offices” on any of the various lots or parcels within those two units. The restrictive covenants were recorded at Miscellaneous Book 58, page 1022, in the Baldwin County Probate Court. The restrictive covenants contained a paragraph indicating that they did not apply “to any portion of Bayou Volanta Commercial Park, Unit 3 .... ”

As of March 2001, Mrs. Dyas apparently had become the sole owner of Unit 3. In that month, she entered into an agreement to sell a portion of Unit 3 to Staggers. Among other things, the agreement included the following contingency: “Buyer intends to develop this property into a medical office park and possibly other health related operations. The purchase is subject to the proper subdivision, zoning verification and approval by the jurisdictional governing body in order to accomplish this type of project.” As called for in the purchase agreement, Mrs. Dyas resubdi-vided Unit 3 into two lots. Apparently at Staggers’s request, Mrs. Dyas thereafter conveyed Lot 1 of Unit 3 to Bon Aventure, L.L.C., in June 2001. The deed to Bon Aventure provided that the conveyance of the property was “made subject to ... [restrictive covenants as contained in Miscellaneous Book 58, Page 1022 .... ”

On November 5, 2004, Staggers and Bon Aventure sued Mrs. Dyas and Craig Dyas L.L.C., which, according to Staggers and Bon Aventure, had acted as Mrs. Dyas’s agent for the sale of Lot 1. Staggers and Bon Aventure alleged that the defendants, as part of the agreement by which Bon Aventure purchased Lot 1, agreed that the purchaser could erect a sign on certain property owned by Mrs. Dyas that fronted on Highway 98. They alleged that the defendants breached this agreement by subsequently refusing to allow Staggers to erect a sign, and that their previous agreement to allow him to do so constituted a misrepresentation. Mrs. Dyas and Craig Dyas L.L.C. answered the complaint, denying the material allegations thereof. Mrs. Dyas also filed a counterclaim in which she asserted that Lot 1 was subject to the restrictive covenants and that, among other things, Bon Aventure had violated the restrictive covenants by erecting two buildings on Lot 1.

A bench trial was held on March 1, 2006. On April 25, 2006, the trial court entered a judgment in favor of Mrs. Dyas and Craig Dyas L.L.C. on the complaint and in favor of Mrs. Dyas on her counterclaim. With regard to the counterclaim, the trial court stated:

“[T]he Court does hereby determine and declare that those certain Restrictive Covenants dated September 23, 1986 and recorded in Miscellaneous Book 58, page 1022 in the Office of the Judge of Probate of Baldwin County, Alabama are properly incorporated by reference in that certain Warranty Deed from Olympia Corte Dyas to Bon Aventure, L.L.C., dated June 20, 2001, which is recorded as Instrument No. 603226 in the Office of the Judge of Probate, Baldwin County, Alabama, and that those restrictive covenants constitute a burden on the title to the real property conveyed by that deed, and that the said covenants are valid and fully enforceable as to said real property according to their terms .... ”

Staggers and Bon Aventure appeal from the trial court’s judgment related to Mrs. Dyas’s counterclaim.

II. Standard of Review

As noted, this case was tried without a jury. “Where evidence is presented to the trial court are tenus, a presumption of correctness exists as to the court’s conclusions on issues of fact .... ” American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 132 (Ala.1997). The presumption of correctness accorded a trial court’s judgment following a bench trial where evidence is presented ore tenus does not extend to its decisions on questions of law. Instead, this Court reviews de novo the trial court’s rulings on questions of law. Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).

III. Analysis

Staggers and Bon Aventure initially contend that the trial court should have dismissed Mrs. Dyas’s counterclaim because, they argue, Mrs. Dyas was without standing to enforce the restrictive covenants. Athough they did not raise this issue in the trial court, “ ‘[standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.’ ” Ex parte Fort James Operating Co., 871 So.2d 51, 54 (Ala.2003) (quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)). Thus, we will address the issue of Mrs. Dyas’s standing to assert her counterclaim.

According to Staggers and Bon Aventure, the restrictive covenants

“constitute a common development scheme for the Bayou Volanta Commercial Park. Those who are owners of lots in Bayou Volanta are required to comply with all of the restrictions in the general scheme, and only those owners have the right to enforce those restrictions. Paragraph 15 of the restrictions provides: [‘]The covenants contained herein may be enforced by the owner of any lot in the subject property or by any member of the Covenant Review Committee.’ ... The ‘subject property is defined in the legal descriptions of Units One and Two in the first two paragraphs of the restrictions. As there is no evidence that the Dyas defendants owned property in Units One or Two, the Dyas defendants lack standing to enforce the [restrictive covenants].”

We disagree.

Mrs. Dyas executed and filed the restrictive covenants. The restrictive covenants contained the following clause:

“WHEREAS, [Mrs. Dyas] is interested in restricting the use, occupancy and improvement of all lots in said subdivision and on said parcel, so as to keep the use, occupancy and improvement of said subdivision and parcel at a high level for the benefit and pleasure of the owners of the lots in said subdivision and for the owners of neighboring property, which is oivued by [Mrs. Dyas] and also to promote the appearance and protect the value of lots in the subdivision and adjoining property ....

(Emphasis added.) Thus, the record reflects that the restrictive covenants were put in place for the express benefit of property owned by Mrs. Dyas that is adjacent to the property to which the restrictive covenants apply (Units 1 and 2). Because Mrs. Dyas owns property that is expressly benefited by the restrictive covenants, she is entitled to enforce those restrictive covenants. See 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 247 (2005) (“[A] breach of ... a [restrictive] covenant may be restrained at the suit of one who owns property or for whose benefit the restriction has been established .... ”); 2 Restatement (Third) of Property: Servitudes § 8.1 (2000) (“A person who holds the benefit of a servitude ... has a legal right to enforce the servitude.”)-

Furthermore, it is undisputed that Bon Aventure purchased Lot 1 of Unit 3 directly from Mrs. Dyas, who owns the remaining portion of Unit 3. The deed by which Mrs. Dyas conveyed Lot 1 to Bon Aven-ture references, on its face, the restrictive covenants. Assuming solely for purposes of this discussion of the standing issue that this reference to the restrictive covenants resulted in the incorporation of those covenants into the deed (an issue we address below), Bon Aventure, by its acceptance of the deed, would have agreed that its ownership of Lot 1 was encumbered by the covenants contained in the deed. See McKee v. Club-View Heights, Inc., 230 Ala. 652, 654, 162 So. 671, 673 (1935) (“The grantee in accepting the deed containing such conditions or covenants accepts the title encumbered thereby, and is bound as though he had signed the conveyance ....”). As the covenantee to the restrictive covenants allegedly incorporated in the deed conveying the property to Bon Aventure, Mrs. Dyas would have standing to seek enforcement of the restrictive covenants. See 20 Am.Jur.2d Covenants, Conditicnis, and Restrictions § 242 (2005) (“The parties to a restrictive covenant may enforce it among themselves, at least so long as the covenantee continues to own any part of the tract for the benefit of which the restrictions have been created.” (footnotes omitted)).

The foregoing analysis is not altered by the language in paragraph 15 of the restrictive covenants, which states that “[t]he covenants contained herein may be enforced by the owner of any lot in the subject property or by any member of the Covenant Review Committee.” We do not read this clause as being restrictive, but rather as permissive. That is, we do not read this clause as limiting the scope of individuals and entities with the authority to enforce the restrictive covenants. Instead, we read this clause as expressly affirming that certain individuals who might or might not otherwise have a right to do so “may” enforce the covenants. Specifically, this provision makes it clear that, in addition to the owners of lots in Units 1 and 2, any member of the Covenant Review Committee “may” sue to enforce the restrictive covenants. Under the circumstances of this case, and without more upon which to base such a reading, we decline to read the affirmative grant of authority in this clause as negatively implying an abrogation of Mrs. Dyas’s right to seek enforcement of the restrictive covenants under the common-law principles discussed above.

Having determined that Mrs. Dyas has standing to enforce the restrictive covenants, we turn now to the issue whether the restrictive covenants are enforceable against Lot 1, Bon Aventure’s property. Regarding the restrictive covenants, the deed for Lot 1 provides:

“This conveyance is made subject to the following:
“Restrictive covenants as contained in Miscellaneous Book 58, Page 1022, but deleting any covenant, condition, or restriction indicating a preference, limitation or discrimination based on race, color, i’eligion, sex, handicap, familial status, or national origin to the extent such covenants, conditions or restrictions violate 42 U.S.C. 3604(c).”

Staggers and Bon Aventure contend that this language is ambiguous and, as a result, that it did not effectively incorporate the restrictive covenants into the deed. We agree.

Recently, we stated: “Regarding the construction of deeds, it is well settled that a deed is construed most strongly against the grantor.” Barnett v. Estate of Anderson, 966 So.2d 915, 918 (Ala.2007). See also Earle v. International Paper Co., 429 So.2d 989, 994 (Ala.1983) (“[DJeeds of bargain and sale for valuable consideration are to be construed against the grantor and in favor of the grantee, when ambiguous.”). See generally 23 Am.Jur.2d Deeds § 200 (2002) (“Most courts agree that if there is any ambiguity rendering a deed subject to alternative constructions, that construction will be adopted which is more favorable to the grantee than to the grant- or, all doubts being resolved against the grantor.” (footnotes omitted)).

Furthermore, “[i]t is also well settled that restrictions on the use of land are not favored in the law, and such restrictions are strictly construed in favor of the free use of such property.” Hill v. Rice, 505 So.2d 382, 384 (Ala.1987). Indeed, the construction this Court gives a restrictive covenant “will not be extended by implication or include anything not plainly prohibited and all doubts and ambiguities must be resolved against the party seeking enforcement.” Bear v. Bernstein, 251 Ala. 230, 231, 36 So.2d 483, 484 (1948).

The portion of the deed indicating that the conveyance of Lot 1 to Bon Aventure was “subject to” the “[rjestrictive covenants as contained in Miscellaneous Book 58, Page 1022,” is ambiguous in two ways. First, the language employed does not specifically state that the deed incorporates the restrictive covenants, but only that the act of conveying the property is “subject to” the restrictive covenants. The deed is simply not clear with regard to whether the restrictive covenants, which by their terms are not applicable to the property conveyed to Bon Aventure, were to become a new encumbrance on the property by operation of the deed.

Moreover, the document entitled “Restrictive Covenants” appearing at “Miscellaneous Book 58, Page 1022,” states explicitly and in no uncertain language that it has no application to Unit 3, a portion of which was eventually conveyed to Bon Aventure. Specifically, it provides that “the Restrictive Covenants contained herein are not intended to apply to any portion of Bayou Volanta Commercial Park, Unit Three ....” Thus, even if the “subject to” language employed in the deed unambiguously incorporated the restrictive covenants into the deed, those covenants, by their own terms, do not apply to Bon Aventure’s property, and, as a result, the incorporation, even if effective, would create a further ambiguity between the terms of the deed and the terms of the restrictive covenants that would be incorporated therein.

Applying the rules of construction set forth above and construing the deed most strongly in favor of both the grantee (Bon Aventure) and the free use of the property conveyed, we determine that the “subject to” clause in the deed listing the book and page of the restrictive covenants did not effectively encumber the property with the restrictive covenants that apply to Units 1 and 2 of Bayou Volanta Commercial Park. The trial court erred when it held otherwise.

TV. Conclusion

For the foregoing reason, we reverse the judgment of the trial court finding that the restrictive covenants applying to Units 1 and 2 of Bayou Volanta Commercial Park also encumber Bon Aventure’s property, and we remand the case for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

LYONS, J., concurs in the result.

WOODALL, J., dissents.

LYONS, Justice

(concurring in the result).

The trial court awarded Mrs. Dyas relief on her counterclaim in which she asserted that the property Bon Aventure purchased, which was part of Unit 3, was subject to the restrictive covenants applicable to Units 1 and 2. The main opinion concludes that Mrs. Dyas had standing to enforce the restrictive covenants but then reverses the judgment of the trial court in favor of Mrs. Dyas on her counterclaim based upon a finding that the restrictive covenants do not apply to the subject property.

Mrs. Dyas and her husband are the source of the restrictive covenants because they initially placed the restrictive covenants of record. Paragraph 15 of the restrictive covenants states: “The covenants contained herein may be enforced by the owner of any lot in the subject property or by any member of the Covenant Review Committee.” Mrs. Dyas is not within the category of entities described in paragraph 15 that may enforce the restrictive covenants.

The main opinion “decline[s] to read the affirmative grant of authority in [paragraph 15] as negatively implying an abrogation of Mrs. Dyas’s right to seek enforcement of the restrictive covenants under the common-law principles discussed above.” 3 So.3d at 864. In so doing, the main opinion disregards the plain language of paragraph 15 of the restrictive covenants. Moreover, even if we were to deem the reference in paragraph 15 to who may enforce the restrictive covenants as ambiguous, we cannot construe it in favor of Mrs. Dyas, the source of the covenants, because the relevant rule of construction, “expressio unius est exclusio alterius,” operates to prevent her from being a member of the group entitled to standing to enforce the covenants. In Ex parte Haponski, 895 So.2d 971, 972 (Ala. 1981), this Court stated:

“Similarly the meaning of ‘curbs, gutters, and pavement’ should not be extended to include underground storm drainage systems. The agreement contained in respondent’s letter specifically named the items for which the petitioner was to pay fifty percent of the costs. A familiar [maxim] of statutory construction, expressio unius est exclusio alteri-us, is equally applicable in contract to construction of contract language so that specific mention of one of a class of things implies the exclusion of those items not mentioned. Black’s Law Dictionary, p. 521 (5th Ed.1979). It is axiomatic that if a contract is ambiguous the court will construe the contract most strongly against the party who drew it; in this case, Todd Farms. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975).
“Where, as here, the language of the contract is unambiguous and plain in its expression, the court cannot alter the agreement by construction but rather must expound it as it is made by the parties. Flowers v. Flowers, Ala., 334 So.2d 856 (1976); Springdale Gayfer’s Store Co. v. D.H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967). The terms of this contract are clear as to what items of cost are to be shared, but even if they were considered to be ambiguous, the relevant rules of construction mandate reversal of the decision of the Court of Civil Appeals.”

I therefore respectfully concur in the result.

WOODALL, Justice

(dissenting).

I agree with the majority that Mrs. Dyas has standing to enforce the restrictive covenants. However, I must respectfully dissent, because, in my opinion, the restrictive covenants are enforceable against the property conveyed to Bon Aventure by Mrs. Dyas.

“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). In my opinion, the language of the conveyance from Mrs. Dyas to Bon Aventure is reasonably susceptible of only one meaning, namely, that it imposed upon that portion of Unit 3 conveyed to Bon Aventure the same restrictive covenants that had been imposed on Units 1 and 2 by the referenced recorded instrument. I agree with Mrs. Dyas that any other. construction “would mean that there is no significance to the ‘subject to’ provision of the deed referencing the restrictive covenants, contrary to the general rules of construction.” Mrs. Dyas’s brief, at 19-20. See Wittmeir v. Leonard, 219 Ala. 314, 317, 122 So. 330, 333 (1929) (“In construing conveyances, ‘each word is presumed to have been used for .some purpose, and deemed to have some force and effect.’ ”).

      . The notice of appeal describes this appellant as “Bon Adventure and/or Bon Adventure, L.L.C.” It appears, however, that the real party in interest is Bon Aventure, L.L.C.

      . We assume for purposes of this opinion that Staggers holds an ownership interest in Bon Aventure, although the nature and extent of his affiliation with Bon Aventure is not apparent from the record.

      . They do not appeal from the portion of the judgment ruling against them on their claim against Mrs. Dyas and Craig Dyas L.L.C.

      4. Staggers and Bon Aventure's argument as quoted is somewhat confusing. Although Bayou Volanta Commercial Park includes all three units, they apparently intend their references to Bayou Volanta Commercial Park in the first two sentences of the quoted paragraph to refer to only Units 1 and 2.

      . See also Nature Conservancy v. Congel, 253 A.D.2d 248, 251, 689 N.Y.S.2d 317, 319 (1999) ("Subsequently, New York courts adopted the view that an owner of neighboring land, for whose benefit a restrictive covenant is imposed by a grantor, may enforce the covenant as a third-party beneficiary despite the absence of any privity of estate between the grantor and the neighbor .... ”); Amir v. D’Agostino, 328 N.J.Super. 141, 152, 744 A.2d 1233, 1239 (1998) ("Amir contends that he has standing even without the purported assignment. It is his position that he is the intended beneficiary of the restrictive covenants in the Fernicola/D'Agostino deed. It is true that persons not a party to a transaction may nevertheless be the intended beneficiary of a covenant and thereby gain standing to enforce it.”); Southeast Toyota Distribs., Inc. v. Fellton, 212 Ga.App. 23, 25, 440 S.E.2d 708, 711 (1994) (“If a grantor sells his property with restrictions which he intends are for the benefit of his neighbors, the neighbors, as beneficiaries, may enforce the benefiting restrictions.”); and Muldawer v. Stribling, 243 Ga. 673, 675, 256 S.E.2d 357, 359 (1979) ("Where a grantor sells his property with a restriction benefiting his neighbors, the neighbor, as the beneficiary, may enforce it.”).

      . The record does not reflect whether Mrs. Dyas is a member of the “Covenant Review Committee.”