Rel: 12/5/14




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130604
                             ____________________

                    Corner Stone Funeral Chapel, Inc.

                                           v.

                                     MVMG, LLC

                    Appeal from DeKalb Circuit Court
                             (CV-09-900101)



BRYAN, Justice.

      Corner      Stone     Funeral      Chapel,      Inc.    ("Corner       Stone"),

appeals from a judgment ordering a receiver to transfer the

assets of a cemetery business to MVMG, LLC, a competitor of

Corner Stone's.          We affirm.
1130604

    Mountain View Memory Gardens & Mausoleum, Inc. ("the

corporation"),     owned     a    cemetery    in     Rainsville    known    as

Mountain View Memory Gardens and Mausoleum ("the cemetery").

The corporation sold "preneed contracts" to people planning to

be interred at the cemetery or planning to have loved ones

interred there.      A purchaser of a preneed contract pays for

funeral merchandise, funeral services, cemetery merchandise,

or cemetery services that will be provided upon a person's

death.    § 27–17A–2(57), Ala. Code 1975.            Preneed contracts in

Alabama are regulated by the Preneed Funeral and Cemetery Act,

§ 27-17A-1 et seq., Ala. Code 1975 ("the Preneed Act"), which

was enacted in 2002.

    Jeanette Mince was the sole owner and officer of the

corporation, and she apparently ran the corporation and the

cemetery.    Mince died in 2008, leaving the corporation to her

two daughters.     However, her daughters were not interested in

operating the corporation, and they expressed an intention to

disclaim    any   interest       in   it.    After    Mince's    death,    the

corporation failed to renew its certificate permitting it to

sell preneed contracts under the Preneed Act.                   In 2009, the

Alabama     Department       of       Insurance      ("the      Department")


                                       2
1130604

investigated the corporation's records and discovered that the

corporation was in poor shape.           The Department found that the

corporation had underfunded certain trust funds required to be

established by the Preneed Act, that the corporation was

insolvent, that the corporation had ceased doing business, and

that    the   cemetery   had    effectively    been   abandoned.     The

Department found that the continued control of the cemetery by

the    corporation   would      be   hazardous   to   preneed-contract

purchasers and beneficiaries in particular and to the people

of Alabama in general.

       Based on the Department's findings, Jim Ridling, in his

official capacity as the commissioner of the Department, filed

a complaint against the corporation, seeking preliminary and

permanent injunctions.         Relying on provisions in the Preneed

Act, Ridling asked the trial court to enjoin the corporation

from conducting business or disposing of its assets.               At the

time of the trial, those assets consisted of the cemetery, a

mausoleum at the cemetery, some property next to the cemetery,

a building and storage structure at the cemetery, and less

than $26,000 in cash.        Ridling also asked the trial court to

appoint a receiver to take control of the corporation and


                                     3
1130604

eventually to liquidate and dissolve the corporation, subject

to the trial court's supervision.1

    In June 2009, the trial court entered a preliminary

injunction,       essentially     enjoining       the     corporation     from

operating; the order also appointed Denise Azar, an employee

with the Department, as receiver for the corporation.                     The

trial     court    directed     Azar       to   take    possession   of    the

corporation's assets and to attempt to liquidate those assets,

subject to the trial court's approval.                 The trial court also

authorized Azar to enter into agreements for the management

and maintenance of the cemetery until the cemetery could be

sold or otherwise liquidated. Shortly after she was appointed

receiver, Azar arranged for Rainsville Funeral Home, Inc., a

local funeral business, to mow, trim, and clean the cemetery;

to locate grave spaces; to open and close graves for burials

at the cemetery; and to place markers and monuments during the

    1
     Ridling acted under § 27-17A-17(b), Ala. Code 1975, a
part of the Preneed Act. That section provides:

    "The commissioner may apply for an order directing
    the   commissioner   to   liquidate   a   [preneed]
    certificate holder ... when, in the commissioner's
    opinion, the continued operation of the certificate
    holder would be hazardous either to purchasers,
    beneficiaries, or to the people of this state."


                                       4
1130604

receivership period.   Rainsville Funeral Home has performed

those services since sometime in 2009.

    During the receivership period, the mausoleum located at

the cemetery continued to fall into disrepair.   The roof was

rotten and leaking, and parts of the mausoleum's interior had

been badly damaged by leaking water, including the ceiling,

flooring, and furniture. Vandals had broken into the mausoleum

and further damaged it. Elsewhere in the cemetery, graves had

been driven over and there was some other evidence indicating

that the cemetery was in a generally run-down condition.    In

response, individuals owning plots and vaults in the cemetery

formed the MVMG Mausoleum Association ("the Association")

during the receivership period to preserve the cemetery.   The

Association collected donations from the community and, with

Azar's permission, made substantial repairs to the mausoleum.

The Association eventually intervened in the underlying case.

    Azar unsuccessfully attempted to find a buyer for the

cemetery, and she eventually concluded that the cemetery was

unmarketable.   Azar recommended that the cemetery and the

corporation's other assets be transferred to an entity that

would both operate the cemetery and honor, either in whole or


                              5
1130604

in part, the corporation's approximately 1,155 outstanding

preneed contracts.     The extent of outstanding services and

merchandise purchased in those preneed contracts is unknown;

typically a preneed contract covers only a portion of the

services and merchandise available.         Two entities presented

proposals to Azar seeking the transfer of the assets, of which

the cemetery is the main asset: Corner Stone and MVMG, LLC

("the LLC"); both of those entities were allowed to intervene

below.

     The LLC was formed in 2011 by Keary Chandler, the owner

of   Rainsville   Funeral   Home,    which,    as   noted,   provided

maintenance   and    services   at    the     cemetery   during   the

receivership period.    At times, the trial court treated the

LLC as synonymous with Rainsville Funeral Home and Chandler,

which appears to be a useful observation for purposes of this

Court's review. The differences between the two proposals was

fleshed out at trial and will be discussed in more detail

below.    One primary difference is that Corner Stone, unlike

the LLC, agreed to provide, at no extra cost, markers and

monuments that had already been purchased in outstanding

preneed contracts.     Azar recommended that the trial court


                                6
1130604

accept Corner Stone's proposal.       Following an ore tenus trial

on the issue held in 2013, the trial court disagreed with Azar

and decided to accept the LLC's proposal.              Thus, the trial

court entered a permanent injunction that, among other things,

ordered Azar to transfer the corporation's assets to the LLC.

    The trial court's order did not completely dispose of the

case; the order noted that the trial court would schedule a

final hearing to resolve issues concerning any claims of

creditors    against   the   corporation   and   any    other   pending

issues.     Corner Stone subsequently moved the trial court to

certify its order transferring the assets to the LLC as a

final judgment under Rule 54(b), Ala. R. Civ. P.             The trial

court certified the order as final under Rule 54(b), and

Corner Stone appealed.2

    The parties disagree as to the proper standard of review.

The trial court received ore tenus evidence at trial.           The LLC


    2
     Corner Stone filed an appellant's brief and reply brief,
and the LLC filed an appellee's brief. Ridling filed a brief
ostensibly as an appellee, but that brief urges this Court to
reverse the trial court's judgment. In substance, Ridling's
brief is an appellant's brief, but Ridling never filed a
notice of appeal, and Corner Stone's notice of appeal lists
only Corner Stone as an appellant.      Thus, in fact there
appears to be only one appellant (Corner Stone) and one
appellee (the LLC).
                                  7
1130604

argues    that    the    ore   tenus    standard      of    review    applies;

conversely, Corner Stone argues that the evidence before the

trial court was undisputed and that therefore our review is de

novo.

    The ore tenus standard applies. Corner Stone's assertion

that the evidence is undisputed is contradicted by the record.

As noted, one difference between the two proposals is that

Corner Stone, unlike the LLC, agreed to provide, at no extra

cost, markers and monuments (collectively "markers") that had

already   been     purchased    in     outstanding preneed        contracts.

William Dalton, Corner Stone's owner, estimated at trial that

assuming liability for the markers would cost Corner Stone

about $60,000. However, Chandler, the owner of the LLC and of

Rainsville Funeral Home, estimated that providing the markers

would cost Corner Stone "more like $150,000."                  Chandler also

questioned       the    economic     feasibility      of     Corner    Stone's

proposal;    when      asked   about    the   LLC's   proposal,       Chandler

indicated that to "do otherwise," i.e., to provide the markers

as Corner Stone proposed, would be unwise and economically

unfeasible.       However, Dalton obviously did not think that

Corner Stone's proposal was unfeasible.                    It is unclear how


                                       8
1130604

many markers had already been paid for in the outstanding

preneed contracts.       Both Dalton and Chandler could only

estimate the total cost of the markers –– however many there

are –– and they disagreed on the economic feasibility of

providing the markers at no cost to the preneed-contract

holders.     Of course, evidence pertaining to the markers is

relevant in evaluating the two proposals.                 The evidence

regarding the markers was disputed, thus defeating Corner

Stone's argument that the ore tenus standard does not apply

because, it says, the evidence is undisputed.

    "[A] judgment based on findings of fact based on [ore

tenus] testimony will be presumed correct and will not be

disturbed on appeal except for a plain and palpable error."

Allstate Ins. Co. v. Skelton,             675 So. 2d 377, 379 (Ala.

1996).     Further, "[w]here the evidence is presented to the

trial court ore tenus, ... the trial court determines the

weight    and   credibility    of   the    testimony."     Wheeler    v.

Marvin's, Inc., 593 So. 2d 61, 63 (Ala. 1991).

    Further, in attempting to convince this Court to review

the judgment de novo, Corner Stone ignores the fact that the

trial     court's   decision    involved     a   matter    within    its


                                    9
1130604

discretion.3      At its heart, this appeal concerns the trial

court's handling of a receivership, which is an equitable

remedy. "A receiver is an impartial officer of the court" who

is "appointed to collect and preserve property and at the

direction of the court to dispose of it and its proceeds."

Ally Windsor Howell, Tilley's Alabama Equity § 31:1(a) (5th

ed. 2012). Generally, "[t]he court has the discretion in

receivership     proceedings     to    do   what   is    best     for    all

concerned."      65 Am. Jur. 2d Receivers § 135 (2011).                 This

Court has stated that a trial court may order the sale of

properties possessed by its receiver "when, in the exercise of

judicial discretion, such sale is deemed to the best interest

of those concerned."     Darley v. Alabama Pub. Utils. Co., 236

Ala. 463, 465, 183 So. 447, 448 (1938).            Although this case

concerns   the   transfer   of   assets     instead     of   a   sale   (the

cemetery was determined to be unmarketable), the same general

principle regarding receiverships applies: the trial court has

the discretion to do what is in the best interest of those

    3
     In its initial brief, Corner Stone mentions in the
"facts" section that it argued to the trial court that the
court had exceeded its discretion in transferring the assets
to the LLC. That appears to be the only reference in Corner
Stone's briefs to the trial court's exercise of its
discretion.
                                  10
1130604

concerned.    See also Seiple v. Mitchell, 239 Ala. 533, 535,

195 So. 865, 865 (1940) (stating, regarding the compensation

given to the receiver by the court, that that was a matter

"primarily within the sound discretion of the court having the

custody and control of the receivership, having regard to all

the relevant circumstances").        Here, those concerned with the

fate of the cemetery include not only the preneed-contract

holders, but also the general public, especially the local

community.    Note that § 27-17A-17(b), Ala. Code 1975, allows

the commissioner of the Department to seek liquidation of a

cemetery    business   when   its   continued    operation   would   be

hazardous    either    to     preneed-contract     "purchasers   [or]

beneficiaries, or to the people of this state."

    In this case, the trial court was free to manage the

receivership within its discretion.        Our review of the trial

court's judgment is limited to determining whether the trial

court exceeded that discretion.

    "'A court exceeds its discretion when its ruling is
    based on an erroneous conclusion of law or when it
    has    acted    arbitrarily    without    employing
    conscientious judgment, has exceeded the bounds of
    reason in view of all circumstances, or has so far
    ignored recognized principles of law or practice as
    to cause substantial injustice.'"


                                    11
1130604

Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of

Alabama, 991 So. 2d 701, 705 (Ala. 2008) (quoting Edwards v.

Allied Home Mortg. Capital Corp., 962 So. 2d 194, 213 (Ala.

2007)). The discretion afforded the trial court is only

strengthened by the ore tenus presumption in this case. Given

our deferential review, this is a straightforward appeal in

which the judgment is due to be affirmed.

    Certainly   there   is   evidence   supporting    both   Corner

Stone's and the LLC's proposal.     For instance, on the Corner

Stone side, Azar (the receiver) concluded that Corner Stone

had the better proposal, and she recommended that the trial

court accept it over the LLC's proposal.         Azar based her

opinion on the fact that Corner Stone, unlike the LLC, agreed

to provide any markers that had already been purchased in

outstanding preneed contracts at no additional cost to the

preneed-contract holders.    Azar concluded that this fact made

Corner Stone's proposal a better deal for the preneed-contract

holders, and that settled the issue for her.         At trial Azar

testified that, besides the marker issue, there were no other

differences between the proposals.       However, the evidence




                               12
1130604

indicates otherwise, and that fact may have undermined the

strength of Azar's opinion in the view of the trial court.

       Chandler   highlighted     other    differences    between      the

proposals, one of which involves the endowment-care trust fund

and the use of remaining funds held by the corporation –– less

than $26,000. The Preneed Act requires each cemetery business

to maintain an endowment-care trust fund to provide for the

endowment     care   of   the   cemetery    it    operates,    i.e.,   the

maintenance and any repairs.       § 27-17A-47 and § 27-17A-2(27),

Ala. Code 1975.      Regarding the endowment-care trust fund, the

Preneed Act, at the relevant time, provided that "[t]he amount

of each bond shall be a minimum of ... $25,000."              § 27-17A-47

(as it read before a 2014 amendment).               Chandler testified

that, if the LLC were awarded the assets of the corporation,

the LLC would place $25,000 of the remaining funds immediately

into    the   endowment-care    trust     fund.     Conversely,   Dalton

testified that, if Corner Stone were awarded the assets,

Corner Stone would place $8,971.52 of the remaining funds into

the endowment-care trust fund and then deposit a minimum of

$5,000 per year until the balance reached $25,000.




                                   13
1130604

      Chandler's plan to fully fund the endowment-care trust

fund immediately was cited as a factor weighing in the LLC's

favor by Janice Gilbert, one of the Association members who

testified at trial. Gilbert holds a preneed contract, and her

late husband is buried in the cemetery.                Gilbert testified

that she wants Chandler and the LLC to take control of the

cemetery.       She testified that Chandler had taken care of her

husband's       funeral;    that    she    trusted     Chandler's     family

(Rainsville Funeral Home is family-run); and that Rainsville

Funeral Home is more conveniently located than Corner Stone's

funeral home, which is located in Ider.

      Gilbert and others discussed the need for financial

stability in the future operation of the cemetery.                   Gilbert

noted    that    Mince,    the   corporation's    previous     owner,    had

experienced       financial      difficulties    and    had   had    trouble

providing markers that had already been purchased in preneed

contracts.      Regarding her own experiences, Gilbert testified

that she could not get the marker for her late husband's grave

site that they had purchased in a preneed contract and that

she     eventually had to buy a cheaper one instead.                Based on

Mince's track record, Gilbert was doubtful that Corner Stone


                                      14
1130604

would be able to absorb the cost of providing the markers

purchased in the outstanding preneed contracts.     As noted,

Chandler opined that Corner Stone's plan to provide the

markers at no cost to the preneed-contract holders was not

economically feasible.    The trial court was free to find

Chandler's testimony more credible than Dalton's on this

issue.    Deborah Thomas, the president of the Association,

testified about the substantial repairs the Association made

to the mausoleum after the corporation became insolvent and

the mausoleum was allowed to fall into disrepair.    She said

that, before the Association made the repairs, the condition

of the mausoleum had become an embarrassment to the community.

See, e.g., Editorial, "Fixing a Disgrace," Times-Journal (Ft.

Payne), June 5, 2013 (describing the situation at the cemetery

as a "disgrace" and an "embarrassing problem"). Both she and

Hubert Tumlin, the treasurer of the Association, testified

that they did not want to go through such an ordeal again.

Concern in the community about future financial stability for

the cemetery was a key issue expressed at trial; the trial

court, in evaluating this concern, was free to place more




                             15
1130604

weight on evidence, such as Chandler's testimony, questioning

the economic feasibility of Corner Stone's proposal.

    Other evidence supports the trial court's decision as

well. At the time of the trial, Chandler had approximately 17

years' experience operating the cemetery in Rainsville and

approximately      34    years'    experience     in    the   funeral-home

business.     Dalton, although quite experienced, seems to have

less experience.         At trial, he testified that Corner Stone

acquired its first cemetery about 4 or 5 years ago and had

since acquired 2 more cemeteries; he also stated that he had

served as a trustee and taken care of a couple of private

cemeteries for the last 10 to 12 years.                Although Dalton did

not state how long he had been in the funeral-home business,

he did state that Corner Stone's funeral-home business had

existed for about 15 years.         Chandler noted that his funeral

home is located closer than is Corner Stone's funeral home to

the cemetery (both Chandler's funeral home and the cemetery

are in Rainsville).        Chandler already has experience working

at the cemetery.        Pursuant to the agreement with Azar, during

the receivership period, which began in 2009, Chandler's

funeral     home   has    been    opening   and    closing     graves   and


                                     16
1130604

maintaining the cemetery grounds.            Chandler testified that he

plans to have someone live in the house at the cemetery,

which, he said, would deter vandalism (which has been a

problem) and make maintaining the cemetery easier.                  Corner

Stone did not make a similar offer.             Chandler's experience in

the community, the location of his funeral home, his recent

dealings at the cemetery, and his plan to have someone live at

the     cemetery     are    factors    supporting    the    trial   court's

decision.       Although the LLC did not offer as much as Corner

Stone      in   providing     the     markers    already    purchased    in

outstanding preneed contracts, Chandler did testify that the

LLC would provide markers to preneed-contract holders at

wholesale cost, diminishing the strength of the major selling

point for Corner Stone.

      We    cannot    say    that     the   trial   court   exceeded    its

discretion in ordering the transfer of the corporation's

assets to the LLC.          Thus, we affirm.

      AFFIRMED.

      Moore, C.J., and Parker, Shaw, Main, and Wise, JJ.,

concur.

      Murdock, J., concurs specially.

      Stuart and Bolin, JJ., dissent.

                                       17
1130604

MURDOCK, Justice (concurring specially).

     I agree with the main opinion.        I write separately to

take further note of certain aspects of the evidence and the

issues in this case.

     As the main opinion observes, the asserted superiority of

the offer of Corner Stone Funeral Chapel, Inc. ("Corner

Stone"), was based on Corner Stone's plan to absorb the cost

of   all   grave   markers   already   purchased   by   holders   of

outstanding preneed contracts. This plan was in turn based on

the ore tenus testimony of Corner Stone's owner, William

Dalton -- indeed, his opinion testimony -- that included an

"estimate" by him that only 30% of the preneed contracts

Corner Stone would assume as part of the assets of Mountain

View Gardens & Mausoleum, Inc., would include grave markers.

On the basis of this opinion and estimate, Dalton's testimony

was that Corner Stone could afford to provide the markers at

a cost of $60,000.

     First, the trial court was free to observe Dalton in his

ore tenus testimony and to find him not to be a credible

witness.    On this basis alone, I do not believe that we can

consider the evidence supporting Corner Stone's offer to be


                                 18
1130604

"undisputed." The trial court thus could have found Corner

Stone's plan to pay for all markers to be unreliable, and, as

an appellate court, we are not in a position to second-guess

the trial court's assessment of Dalton's testimony in this

regard.

    Aside from the possible credibility or weight concerns

the trial court might have applied to Dalton's testimony, the

main opinion notes that his testimony was directly disputed by

other ore tenus testimony.      In addition to the evidence noted

in the main opinion, Keary Chandler, the owner of Rainsville

Funeral Home and of MVMG, LLC ("the LLC"), testified that the

number of markers that might have to be paid for was unknown

and variable.      In fact, Chandler estimated that the cost of

the markers might be $150,000, as opposed to the $60,000

Dalton estimated.     The trial court could have found the LLC's

approach to the issue of the markers, and, by implication, the

management of the contracts in general, to be more fiscally

sound,    and    Corner   Stone's   proposed   approach   not   to   be

credible.       Janice Gilbert, a member of the MVMG Mausoleum

Association, also questioned whether Corner Stone could afford

to provide the markers it was promising to provide (suggesting


                                    19
1130604

that the cost of the markers might have been what led the

prior owner into insolvency in the first place).

    Given the ore tenus standard of review applicable in this

case, this Court can overturn the trial court's decision as to

which company would better serve the interests of the preneed-

contract holders in the long run only if it can determine as

a matter of law that the seemingly more favorable proposal by

Corner    Stone   was   fiscally   sound   and   based   on   reliable

estimates. The testimony in favor of Corner Stone as to these

questions was received by the trial court ore tenus and, thus,

was subject to credibility and weight determinations by the

judge and also was disputed by other ore tenus testimony.            I

therefore believe that we must affirm the trial court's

judgment as to which company was likely to provide more

beneficial and dependable service to the preneed-contract

holders.




                                   20
1130604

STUART, Justice (dissenting).

    The majority opinion affirms the judgment of the DeKalb

Circuit   Court   declaring   Mountain     View   Memory    Gardens   &

Mausoleum, Inc. ("the corporation"), to be insolvent and

ordering its liquidation and the transfer of its assets to

MVMG, LLC ("the LLC"), subject to certain conditions set forth

in the trial court's order.    However, because the corporation

was certified by the Alabama Department of Insurance ("the

Department") as a seller of preneed contracts pursuant to the

Alabama Preneed Funeral and Cemetery Act, § 27-17A-1 et seq.,

Ala. Code 1975 ("the Preneed Act"), the trial court, in

liquidating   the    corporation,    was    required   to    maximize

financial value for those individuals holding outstanding

preneed contracts. It is undisputed that Corner Stone Funeral

Chapel, Inc. ("Corner Stone"), had submitted an offer to take

over the operations of the corporation that would provide more

financial value to those preneed-contract holders than the

offer submitted by the LLC; accordingly, the trial court

exceeded its discretion in transferring the corporation's

assets to the LLC.    I must therefore dissent.




                                21
1130604

      In deciding whether the trial court should have accepted

the proposal of the LLC or the proposal of Corner Stone, it

must first be determined what criteria the trial court should

have employed in evaluating the competing proposals.             The LLC

premises its argument on the assumption that the superior

proposal is the proposal "better calculated and more likely to

serve the interests of the stakeholders in [the cemetery]."

The   LLC's   brief,   p.   9.    Accordingly,     it summarizes    its

argument as follows:

           "The evidence showed that Corner Stone's offer
      provided less security and certainty for the future
      maintenance of the Mountain View [Memory Gardens]
      cemetery. The evidence further showed that Corner
      Stone's offer to provide grave markers at no further
      cost to holders of existing preneed contracts
      calling for the same was ill conceived and not
      economically feasible.   There was introduced more
      than sufficient evidence from which the trial court
      rightly concluded that [the] LLC's offer was much
      less likely than Corner Stone's to result in the
      Mountain View [Memory Gardens] cemetery operation
      again falling into economic ruin, disrepair, and
      receivership, thus better serving the paramount
      interest of the cemetery stakeholders."

The LLC's brief, pp. 9-10.        Thus, it is apparent that the LLC

considers the "cemetery stakeholders" to be a broad group of

people,   including    those     with   friends   and   family   already

interred or buried there and those people with plans to have


                                   22
1130604

themselves –– or friends or family –– buried or interred there

at some point in the future, regardless of whether that burial

or internment is the subject of an existing preneed contract.

The LLC argues that these stakeholders will be better served

under its proposal because that proposal, the LLC claims, is

better for the long-term economic health and viability of the

cemetery.

      In   contrast,   Corner      Stone    and    Jim    Ridling,    the

commissioner    of   the   Department,     argue   that   the   superior

proposal is the proposal that better serves a much more narrow

class of stakeholders –– those who have purchased or who stand

to benefit from outstanding preneed contracts sold by the

corporation before it became insolvent.4           They argue that the

legislature's purpose in enacting the Preneed Act is evident

from the language of the Act –– to provide a mechanism for

protecting the investments of those Alabamians who choose to

purchase preneed contracts. The various statutes constituting

the   Preneed   Act,   such   as   §    27-17A-10,   Ala.    Code    1975

(requiring sellers of preneed contracts to be certified), §


      4
     Commissioner Ridling filed a brief on appeal; however,
he is not named as an appellee on the notice of appeal. See
supra note 2.
                                   23
1130604

27-17A-13, Ala. Code 1975 (requiring such sellers to place a

portion of the funds received from the sale of a preneed

contract   into   trust),   and   §    27-17A-15,    Ala.   Code   1975

(authorizing the Department to examine the business of such

sellers as often as is deemed necessary), Corner Stone and

Commissioner Ridling argue, are all designed with that purpose

in mind.   I agree.

    In a liquidation proceeding conducted pursuant to the

Preneed Act, it is not the duty of a court, when considering

multiple proposals to take over the operations of an insolvent

seller of preneed contracts, to decide simply which proposal

is better for a community or which proposal will result in a

"better" run cemetery according to some undefined criteria.

Rather, it is the duty of the court in such a situation to

take the action that will better achieve the purpose of the

Preneed Act –– to protect the financial interests of holders

and beneficiaries of preneed contracts.             That this is the

purpose of the Preneed Act is manifested by the fact that it

is the Department that supervises the liquidation of any

certified seller of preneed contracts and that, pursuant to §

27-17A-17, Ala. Code 1975, it does so subject to § 27-32-1 et


                                  24
1130604

seq.,     Ala.     Code        1975,   which     chapter     governs      the

rehabilitation, reorganization, conservation, and liquidation

of an insolvent insurance business. Sections 27-32-37 through

27-32-41 of that chapter establish that, in the liquidation

process, policyholders are preferred creditors and receive

first     priority    during      liquidation,     subject    to    limited

exceptions not applicable here.              In the context of this case

–– the liquidation of a certified seller of preneed contracts

–– those individuals who have purchased preneed contracts are

analogous to insurance policyholders inasmuch as they have

purchased a contract, or "policy," providing for a future

benefit.     Accordingly, they are given preferred status, and

the object of the liquidation process is to make them whole

above any other interested party or claimant.                      For that

reason, a trial court overseeing the liquidation process of a

certified    seller       of    preneed     contracts   should     make   its

decisions based on how to best preserve value for those

holders of preneed contracts.               Protecting their investments

is, after all, the reason the Preneed Act was enacted, and the

relevant statutes should be "liberally construed" to achieve

that goal.       § 27-32-2, Ala. Code 1975.


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     However, although the relevant statutes are unambiguous,

the majority opinion instead adopts the viewpoint that the

trial court is empowered to simply decide what "is in the best

interest   of    those   concerned"      and   considers   all    "those

concerned" to include "the general public [and] especially the

local community." ___ So. 3d at ___.             Although this broad

class of people no doubt includes citizens who are "concerned"

about the cemetery in the general sense that they take pride

in the success and appearance of their community, their level

of "concern" is insufficient from a legal perspective –– the

Preneed Act, read in conjunction with the statutes governing

insolvent insurance businesses, clearly indicates that the

only "concern" that matters in a liquidation proceeding of a

corporation such as the one here is the financial concern of

those who hold preneed contracts.              The majority opinion

supports its rationale that the trial court was authorized to

consider community sentiment in making its decision by citing

§ 27-17A-17(b), Ala. Code 1975, which allows the commissioner

of the Department to seek liquidation of a certified seller of

preneed contracts when the seller's continued operation would

be   hazardous   to   purchasers    or    beneficiaries    of    preneed


                                   26
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contracts, "or to the people of this state."           However, § 27-

17A-17(b)    only   sets    forth    the    circumstances     in    which

liquidation is authorized; it does not bear on how that

liquidation should be accomplished or what factors should

govern the liquidation process.            Section 27-17A-17(a), Ala.

Code 1975, does address that issue and provides that such a

liquidation should be conducted under the supervision of the

commissioner of the Department "who shall have all powers with

respect thereto granted to the commissioner under Chapter 32

with respect to the liquidation of insurance companies."               As

already explained supra, it is evident from § 27-32-1 et seq.

that    policyholders,     or   preneed-contract    holders    in   this

context, are a preferred class, and a trial court should make

its decisions during the liquidation process based on how to

best preserve value for that preferred class –– not based on

the desires of individuals who have no legally recognizable

interest in the proceedings.

       In this case, it is undisputed that the proposal put

forth by Corner Stone promises more value to those holding

outstanding preneed contracts sold by the corporation than the

proposal submitted by the LLC.           Denise Azar, the Department


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employee responsible for the cemetery while it was under the

Department's control, stated as much in her testimony and

stated that, for that reason, the Department endorsed Corner

Stone's proposal.    Corner Stone's owner, William Dalton, also

testified that Corner Stone's proposal was worth approximately

$60,000 more to those holders of preneed contracts than the

LLC's proposal.     Even the LLC's sole member, Keary Chandler,

when asked, willingly agreed that Corner Stone's proposal

offered more benefits, and he in fact estimated those benefits

to be worth far more than $60,000:

    "Q. Well, what would be your estimate that it would
        cost him –– or cost you had you included that
        in your offer –– to furnish these markers?

    "A. I'd say more like $150,000.

    "Q. Okay.   So, in your judgment then, the offer
        that he's made would benefit the contract
        holders –– assuming he carries those contracts
        out and does [what] he says he'll do –– would
        be valued at $150,000 more than what yours
        would be?

    "A. Yes."

The greater value of Corner Stone's proposal being established

without dispute, it was due to be accepted.      Any community

sentiment in favor of keeping Mountain View Memory Gardens

under the more "local" control of Rainsville Funeral Home,

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which     Chandler    owns   and   operates,    or   any    belief   that

Rainsville Funeral Home was in some way entitled to Mountain

View Memory Gardens because it has been maintaining it under

contract    with     the   receiver   since   this   process   began   is

irrelevant.5 The object of the applicable statutes is to make

sure that those who purchased preneed contracts from the

corporation receive what they purchased, and it is undisputed

that Corner Stone's proposal is preferable in that regard.

    We further note that although the record contains much

speculation and insinuation that it will be impossible for

Corner Stone to actually deliver what it promises in its

proposal, there is no credible evidence that would indicate

that.     See Heisz v. Galt Indus., Inc., 93 So. 3d 918, 931

(Ala. 2012) (stating that "speculation is an insufficient

basis upon which to support a judgment").                  The competent

    5
     It bears noting that the interests of those in the
Rainsville community desiring to keep Mountain View Memory
Gardens under local management are not necessarily aligned
with those holding preneed contracts purchased from the
corporation. That is, those Rainsville residents with future
cemetery business might prefer to take care of it in
Rainsville rather than make the approximately 17-mile drive to
Corner Stone's offices in Ider; however, the holder of a
preneed contract who stands to save $600 or more that he or
she would otherwise have to spend on a grave marker that had
already been paid for once would presumably be less hesitant
to make that drive.
                                      29
1130604

evidence    in   the   record   indicates   that   Corner   Stone   has

successfully operated a funeral home since 1998 and has since

grown its business to include three cemeteries.             Moreover,

Corner Stone has previously purchased a cemetery out of a

Department-supervised receivership in what Dalton described as

a "[v]ery similar situation," and its performance with regard

to that cemetery has apparently been of sufficient quality

that the Department, which examines, audits, and receives

annual    reports   from   certificate   holders,   is   recommending

Corner Stone to take over another insolvent cemetery and its

preneed contracts.

    In fact, the trial court itself recognized the absence of

any evidence that would indicate Corner Stone could not

provide the benefits promised in its proposal, stating that

"no evidence is presented that Mr. Dalton, himself, couldn't

follow through.        Now Ms. Mince couldn't follow through,

clearly, or we wouldn't be here.         But what evidence is there

that Mr. Dalton can't follow through?"         Once the speculation

is properly discarded, there is none. Indeed, it appears from

the record that Corner Stone could have the financial assets

of Wal-Mart Stores, Inc., and General Motors Company combined


                                   30
1130604

–– the majority has not and cannot point to any evidence in

the record that would indicate otherwise.                   The only testimony

questioning Corner Stone's financial capability comes from a

competitor   and    an    individual      who       admittedly    favors   that

competitor; however, that testimony has no factual basis and

is accordingly nothing more than speculation. Ex parte Nathan

Rodgers   Constr.,       Inc.,   1   So.       3d     46,   52   (Ala.    2008).

Unfortunately, the majority has now elevated that speculation

to the realm of competent evidence, notwithstanding this

Court's longstanding precedent indicating that speculation is

not evidence that can support a judgment.                   See, e.g., Heisz,

93 So. 3d at 931 (stating that "speculation is an insufficient

basis upon which to support a judgment").

    Moreover,      the   fact    that     we    are    reviewing    the    trial

court's judgment under the ore tenus rule, as opposed to

reviewing it de novo, should have no effect on the ultimate

outcome. A judgment entered based on ore tenus testimony must

still be supported by credible evidence, Joseph v. MTS Inv.

Corp., 964 So. 2d 642, 646 (Ala. 2006), and statements that

reflect speculation and lack of personal knowledge do not

constitute credible evidence.              Ex parte Professional Bus.


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1130604

Owners Ass'n Workers' Comp. Fund, 867 So. 2d 1099, 1101-1102

(Ala. 2003).    There is no evidence in the record indicating

that the proposal made by the LLC will provide more financial

benefits to the remaining preneed-contract holders than the

proposal made by Corner Stone, nor is there any evidence –– as

opposed to speculation –– in the record indicating that Corner

Stone   lacks   the   capability   to    fulfill   the   terms   of   its

proposal. To the contrary, it is undisputed that the proposal

made by Corner Stone offers greater value to preneed-contract

holders, and those parties with some actual knowledge of

Corner Stone's finances –– Dalton and the Department –– are

satisfied that Corner Stone has the wherewithal to fulfill the

terms of its proposal. It is accordingly clear that the goals

and intents of the Preneed Act and relevant liquidation

statutes will be more fully realized by the acceptance of the

Corner Stone proposal. By affirming the judgment of the trial

court in favor of the LLC, this Court is not deferring to the

trial court's evaluation of the witnesses and evidence but is

instead yielding to speculation.          Beck v. Beck, 142 So. 3d

685, 695 (Ala. Civ. App. 2013).         Accordingly, I must dissent.

I would reverse the trial court's order and remand the cause


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for the entry of a liquidation order directing the Department

to transfer the corporation's assets to Corner Stone.

    Bolin, J., concurs.




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