Rel: June 26, 2026
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) 229-0650), 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, 2025-2026
SC-2026-0037
David Wayne Moore
v.
Cherie Frances Capesius, now known as Cherie Capesius Ginn,
and Executive Real Estate Management, Inc., now known as
Ginn Professional Services, Inc.
Appeal from Madison Circuit Court
(CV-04-77)
SELLERS, Justice.
SC-2026-0037
David Wayne Moore appeals from a judgement of the Madison
Circuit Court ("the trial court") releasing Executive Real Estate
Management, Inc., which is now known as Ginn Professional Services,
Inc. ("EREM"), from garnishing the wages of Cherie Frances Capesius,
who is now known as Cherie Capesius Ginn.1 We reverse the judgment
of the trial court with instructions to comply with the oral-examination
requirement of Ala. Code 1975, § 6-6-450.
I. Facts
On September 2, 2005, a default judgment was entered against
Ginn in the amount of $1,500,000 for personal injuries sustained by
Moore in a motor-vehicle accident. Over 10 years later, on September 25,
2015, Moore filed a petition and successfully revived the 2005 judgment
pursuant to Ala. Code 1975, § 6-9-190. Subsequently, a writ of
garnishment was issued to Ginn's employer, EREM,2 that ordered EREM
1Cherie married her husband, Bradley, in 2016 and subsequently
changed her name. Around July 2023, Executive Real Estate
Management, Inc., changed its name to Ginn Professional Services, Inc.
2EREM was a property management company operated by Ginn
and her husband.
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to remit the proper withholdings from Ginn's wages. The payments began
on September 13, 2017, and continued for almost 8 years.
In April 2024, EREM sold substantially all of its assets to the
Alabama Division of Beacon Management Services, LLC ("Beacon").
Thereafter, on October 15, 2025, EREM filed a "Motion to Release
Garnishment," arguing that, because Ginn was no longer employed by
EREM and because Beacon and EREM are distinct corporate entities,
EREM's obligation under the garnishment should be discharged.
Although the motion was drafted and signed by EREM's attorney,
Nicholas Hughes, Hughes did not submit an affidavit indicating that he
was "the duly authorized agent" of EREM having "knowledge of the facts
stated therein" as required by Ala. Code 1975, 6-6-451.
Regardless, a day later, on October 16, 2025, the trial court granted
the motion and ordered that EREM be released from the garnishment.
That same day, Moore filed a motion to set aside the order releasing
EREM from the garnishment based on the absence of the affidavit.
Further, Moore argued for an opportunity to orally examine EREM, to
test the factual assertions of its motion, under § 6-6-450. Moore also filed
a motion to amend the garnishment to substitute either Ginn
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Professional Services, Inc., or Beacon as garnishee, in essence arguing
that, regardless of whether Ginn's wages were received from Ginn
Professional Services or Beacon, they were subject to the garnishment.
Because the trial court did not rule on either motion within 90 days, they
were deemed denied by operation of law under Rule 59.1, Ala. R. Civ. P.,
and the garnishment was released. Moore appealed.
II. Standard of Review
" '[T]his court reviews de novo a trial court's interpretation of a
statute, because only a question of law is presented.' " Continental Nat'l
Indem. Co. v. Fields, 926 So. 2d 1033, 1034-35 (Ala. 2005) (quoting Scott
Bridge Co. v. Wright, 883 So. 2d 1221, 1223 (Ala. 2003)).
III. Discussion
The termination of Ginn's employment and the filing of the "Motion
to Release Garnishment" implicates section 6-10-7(a), Ala. Code 1975,
which provides, in relevant part:
"Should the employment of the defendant for any reason be
terminated with the garnishee, then the garnishee shall not
later than 15 days after the termination of employment,[3]
report the termination to the court and pay into court all sums
3Although Moore notes the 15-day requirement in his brief, he does
not argue that EREM failed to comply with this requirement.
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withheld from the defendant's wages, salaries, or other
compensation. If the plaintiff in garnishment contests the
answer of the garnishee, as now provided by law in such cases,
and proves to the court the deficiency or untruth of the
garnishee's answer, the court shall enter judgment against
the garnishee for such amount as would have been subject to
the order of condemnation had the sum not been released to
the defendant."
See Radiance Cap. Receivables Twelve, LLC v. Bondy's Ford, Inc., 411
So. 3d 1210, 1213 (Ala. 2024) ("[Section] 6-10-7(a) directs that a
garnishee's report to the trial court of the termination of the defendant's
employment be treated as an answer that may be contested by the
plaintiff, in accordance with the procedure for garnishment actions.").
Here, the parties concede that the "Motion to Release Garnishment"
should be treated as an answer in accordance with the following
procedures for garnishment actions (the "Motion to Release
Garnishment" is referred to as "the amended answer"). Thus, the
dispositive issue is whether EREM's amended answer procedurally
complied with § 6-6-450, which states:
"The garnishee must answer under oath according to the
terms of the garnishment; and, upon filing, the clerk or
register shall give the plaintiff and defendant notice, and the
garnishee may, if required by the plaintiff, be examined orally
in the presence of the court. Any demand for oral examination
required by the plaintiff after filing of written answer by the
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garnishee must be made by motion filed within 30 days from
the date of notice of filing answer."4
When the garnishee is a corporation, it must also comply with § 6-6-451, which provides that "[n]o person shall answer on behalf of any
corporation any process of garnishment unless he shall make affidavit
that he is the duly authorized agent of the corporation to make such
answer and that he has knowledge of the facts stated therein." In
accordance with these statutes, this Court must first determine whether
the affidavit requirement was successfully complied with.
The Court of Civil Appeals has recognized that the doctrine of
substantial compliance applies when attempting to satisfy § 6-6-451.
Green v. Pike Manor, Inc., 431 So. 2d 1316, 1318 (Ala. Civ. App. 1983)
("Despite the lack of strict, technical compliance with [§ 6-6-451], we feel
the necessary information § 6-6-451 requires was contained within the
answer."). In Green, the answer was sworn by the administrator of the
garnishee business that employed the judgment debtor, stated that it was
from that business, and was witnessed by a notary public. The answer
further stated that the " '[d]efendant is employed by me and I will
4The parties do not dispute whether they received proper notice of
the amended answer in accordance with § 6-6-450.
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withhold from the salary, wages, or compensation, as required, and pay
total into court.' " Id. However, there was no accompanying affidavit. The
Court of Civil Appeals found that "[t]he notarized statements and
signature coupled with the signator's title of administrator substantially
compl[ied] with § 6-6-451 in that, expressly or implicitly, the information
in the answer met the necessary informational requirements of the code
section." Id. (emphasis added). Moore cites to prior cases attempting to
argue that this Court has previously construed these requirements
strictly; however, those cases are outdated and do not reflect this Court's
" '…jettison [of] the theory of strict technical compliance to a more
reasoned test, i.e., one of substantial compliance.' " Id. (citations omitted);
see Steiner v. First Nat'l Bank of Birmingham, 115 Ala. 379, 385, 22 So.
30, 31 (1897).
Here, although EREM's amended answer was signed only by
Hughes, we conclude that the information in the amended answer met
the necessary informational requirements of 6-6-451 and, thus,
substantially complies with its requirements. EREM's amended answer
clearly stated the following necessary information:
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"1. A Writ of Garnishment was issued to EREM, Inc.
as the employer of Cherie Frances Capesius, the Defendant
herein.
"2. EREM, Inc. has complied with all obligations
under said writ during the period in which Ms. Capesius was
employed by it.
"3. Ms. Capesius is no longer employed by EREM,
Inc., and therefore, EREM, Inc. no longer holds or owes any
wages or other funds to her that may be subject to
garnishment.
"4. Accordingly, there are no further monies available
or payable to be withheld or remitted under the garnishment."
(Footnote omitted.)
While there was no formal affidavit, the signature by Hughes, as
the attorney of record for EREM, was sufficient to substantially comply
with the affidavit requirement. Because the amended answer was filed
by an attorney, Rule 11(a), Ala. R. Civ. P., is implicated: "The signature
of an attorney constitutes a certificate by the attorney that the attorney
has read the pleading, motion, or other paper; that to the best of the
attorney's knowledge, information, and belief there is good ground to
support it; and that it is not interposed for delay." Thus, the signature on
the amended answer by EREM's attorney, who is an officer of the court,
obviates the need for an affidavit. Moreover, the affidavit requirement is
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intended to protect both the garnishee and the plaintiff, by ensuring that
the information provided is accurate and made with the corporation's
consent. See Decatur, C. & N.O. Ry. Co. v. Crass, 97 Ala. 519, 521, 12 So.
43, 43 (1892). Furthermore, the garnishment action here was an active
matter before the court, and the amended answer was a subsequent
pleading that an attorney of record, as the agent for corporation, had the
requisite authority to file, effectively amending the initial answer in
order to comply with the statutes and release the garnishment
encumbering the funds of the judgment debtor. Thus, the signature of a
licensed attorney, who is acting on behalf of a garnishee, provides the
same assurance and protection that the affidavit is intended to provide.
The amended answer submitted by EREM's attorney substantially
complied with the requirements of § 6-6-451 because the information in
the amended answer met the necessary informational requirements of
that Code section.
Moore also contends that the trial court's immediate-release order
bypassed the procedure Alabama law gives Moore to protect his lien and
to test EREM's factual assertions under § 6-6-450. Specifically, under §
6-6-450, Moore has the right to orally examine EREM if he files a motion
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to do so within 30 days from the date of notice of the filing of an answer.
The record shows that the amended answer was filed on October 15,
2025, and the trial court immediately granted the motion on October 16,
2025. Also, on October 16, 2025, Moore filed his "Plaintiff's Motion To Set
Aside Release of Garnishment and for Garnishee to Submit to Oral
Examination …." in which he "move[d] the court pursuant to 6-6-450 ...
to require the Garnishee, EREM, Inc., to appear and to submit to a sworn
oral examination and produce all records of employment and
payroll/compensation regarding its amended answer to the garnishment
filed October 15, 2025."
Because Moore timely complied with the 30-day requirement of § 6-6-450, the trial court erred by not affording him an opportunity to orally
examine EREM, to gather information regarding whether the original
garnishment order would apply to Beacon, as EREM's successor in
interest, and to substantiate other information regarding the termination
of Ginn's employment and whether all sums withheld by EREM from
Ginn's wages, salaries, or other compensation had been paid into the
court. However, by immediately granting the amended answer, the trial
court improperly denied Moore the right to test the sufficiency of EREM's
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statements. Clear harm to Moore exists in the loss of his garnishment of
Ginn's wages and whether the sums garnished were properly accounted
for and remitted to the court.
IV. Conclusion
For the foregoing reasons, we reverse the judgment of the trial
court, with instructions to that court to comply with the oral-examination
requirement under § 6-6-450.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Stewart, C.J., and Wise, J., concur.
Cook, J., concurs in part and concurs in the result, with opinion,
which Parker, J., joins.
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COOK, Justice (concurring in part and concurring in the result).
I agree that we must reverse the Madison Circuit Court's judgment
based on its failure to comply with the oral-examination requirement
provided in § 6-6-450, Ala. Code 1975. That statute provides that the
garnishee "may, if required by the plaintiff, be examined orally," with any
such demand required "within 30 days from the date of notice of filing
answer." As explained thoroughly in the main opinion, in this case, David
Wayne Moore exercised his right under § 6-6-450 the day after the
garnishee, EREM, filed its amended answer. That same day, however,
the trial court discharged EREM. By discharging EREM prematurely,
the trial court cut off Moore's ability to test the accuracy and
completeness of EREM's amended answer, a right that § 6-6-450
expressly protects. Thus, the judgment must be reversed and the case
remanded for the trial court to allow Moore to exercise his right to orally
examine EREM under § 6-6-450, and I concur with this holding of the
main opinion.
Because the trial court's failure to comply with the oralexamination requirement provided in § 6-6-450 is dispositive in this case,
I believe our analysis should stop there. I see no reason for our Court to
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reach the issue of whether the affidavit requirement set forth in § 6-6-451, Ala. Code 1975,5 was substantially complied with in this case, much
less to decide whether substantial compliance could satisfy that statute
at all. See Jackson Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d 490, 498
n.3 (Ala. 2021) (stating that the Court would pretermit discussion of
remaining issues considering the dispositive nature of another issue).
If I were to reach this issue, I am not yet persuaded by the
substantial-compliance discussion provided in the main opinion.
Although that standard was adopted by our Court of Civil Appeals, our
Court has a long-standing history of applying the strict-compliance
standard to the affidavit requirement in § 6-6-451. Compare Green v.
Pike Manor, Inc., 431 So. 2d 1316 (Ala. Civ. App. 1983), with Shepherd
Motor Co. v. Henderson Land & Lumber Co., 213 Ala. 195, 104 So. 334
(1925); Friedman v. Cullman Bldg. & Loan Ass'n, 124 Ala. 344, 27 So.
332 (1899); and Steiner v. First Nat'l Bank of Birmingham, 115 Ala. 379,
22 So. 30 (1897).
5Section 6-6-451 states that "[n]o person shall answer on behalf of
any corporation any process of garnishment unless he shall make
affidavit that he is the duly authorized agent of the corporation to make
such answer and that he has knowledge of the facts stated therein."
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This is not to say that the affidavit is a requirement for subjectmatter jurisdiction. For instance, this requirement might be waivable if
the opposing party does not raise the issue. And, if there is an oral
examination per § 6-6-450, the requirement of sworn testimony to
support the motion may be satisfied.
Even so, the Legislature crafted the specific words of § 6-6-451, and
public policy appears to favor requiring practitioners to follow this simple
affidavit requirement as written rather than relaxing it through judicial
modification unless and until the Legislature decides to amend the
statute. However, we need not decide this issue because we are requiring
an oral examination on remand, and Moore will therefore have the
opportunity to examine EREM regarding the terms of the garnishment.
Parker, J., concurs.
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