Corner Stone Funeral Chapel, Inc. v. MVMG, LLC ( 2014 )


Menu:
  • Rel: 12/5/14
    Notice: This opinion is subject to formal revision before publication in the advance
    sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
    Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
    0649), of any typographical or other errors, in order that corrections may be made before
    the opinion is printed in Southern Reporter.
    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.
    25
    1130604
    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
    1130604
    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
    27
    1130604
    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,
    28
    1130604
    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.
    31
    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
    32
    1130604
    for the entry of a liquidation order directing the Department
    to transfer the corporation's assets to Corner Stone.
    Bolin, J., concurs.
    33