author: WOODALL, Justice. HOUSTON, Justice

text:
    H.R.H. METALS, INC. v. Carl MILLER, by and through his guardian and conservator, Virginia MILLER; and Virginia Miller, individually.
    1002015.
    Supreme Court of Alabama.
    April 19, 2002.

      Warren B. Lightfoot, M. Christian King, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham; and William T. Mills II and Keith J. Pflaum of Porterfield, Harper & Mills, P.A., Montgomery, for appellant.
    David H. Marsh, Jeffrey C. Rickard, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
   WOODALL, Justice.

This case arises out of a serious on-the-job injury suffered by Carl Miller. After a jury trial, the trial court entered a judgment for Carl Miller, against defendant H.R.H. Metals, Inc. (“H.R.H.”), in the amount of $4,562,457.19. The trial court also entered a judgment for Virginia Miller, Carl’s wife, in the amount of $2,125,000 on her loss-of-consortium claim. After the trial court denied its postjudgment motion, H.R.H. appealed. We reverse and remand.

I.

H.R.H. is a dealer in scrap metal. In August 1997, H.R.H. entered into an agreement with Vulcan Materials Company (“Vulcan”), “whereby H.R.H. agreed to purchase and remove the three buildings which made up Vulcan’s Agri-Lime Plant located at the Dolcito Quarry.” Brief of Appellant, at 11. H.R.H. agreed to pay Vulcan for the steel H.R.H. removed, and Vulcan agreed to pay H.R.H. to remove other materials, including asbestos.

H.R.H. signed a separate agreement with Vulcan, entitled “Vulcan Materials Company Contractor/Vendor Covenants, Representations and Warranties.” That agreement contained the following provision:

“5. Safety and Health. [H.R.H.] represents and warrants that its employees, subcontractors, agents and agents’ employees who will be granted access to Vulcan’s premises have received all training required by the Mine Safety and Health Administration, Occupational Safety and Health Administration or their successors and by any state agency, including but not limited to comprehensive miner training and task training. [H.R.H.] further represents and warrants that all such employees, subcontractors, agents and agents’ employees have received satisfactory hazard training appropriate to the Vulcan facility or facilities they will be entering. [H.R.H.] covenants to follow Vulcan’s safety rules and to maintain its own safety and health program for its employees, subcontractors and agents sufficient to prevent injury or illness to such persons resulting from their presence on the Vulcan premises.... ”

H.R.H. reached an agreement with a subcontractor, Ronnie Bridges d/b/a Southern Dismantling, for the demolition and removal of two of the buildings H.R.H. had agreed to remove from Vulcan’s plant. This case involves the third building, which the parties refer to as the “bag house.”

H.R.H. sold the bag house to Miller Machine Company. “Miller Machine purchased the two story high building made of steel beams, girders and siding with a corrugated steel and fiberglass roof ‘AS IS, WHERE IS, MILLER TO TAKE DOWN AND REMOVE.’ ” Brief of Appellant, at 7. Carl Miller was employed by Miller Machine Company. While working with a co-employee to dismantle the bag house, Miller stepped through a skylight, fell approximately 20 feet to a concrete floor, and suffered disabling injuries.

II.

On October 13, 1998, Carl Miller, by and through his guardian and conservator, Virginia Miller, and Virginia Miller, individually, sued H.R.H. and others. The complaint alleged negligence and wantonness claims against H.R.H.:

“2. ... H.R.H. [was] the ... general contractor ... of the site involved in [Carl Miller’s] injury and/or of the building being dismantled. As such, [H.R.H. was] responsible for the safety of workers on this dismantling project. [H.R.H.] negligently or wantonly performed [its] duties in [its] aforesaid [capacity] at the dismantling site and as a direct consequence of said negligent or wanton conduct, [Carl Miller] was caused to be injured and damaged as herein described.”

The complaint also contained a breach-of-contract claim:

“4. Prior to the date of [Carl Miller’s] injury, [H.R.H.] entered into written or oral contracts concerning the building dismantling project involved in [his] injury. Said contract or contracts contained provisions which required [H.R.H.] to provide safety equipment and/or other safety measures for workers at the site, including plaintiff, Carl Miller. The plaintiff, Carl Miller, was a third-party beneficiary to the aforesaid contracts, and was injured and damaged as a direct result of a breach of contract by [H.R.H.].”

Carl Miller claimed compensatory and punitive damages. Virginia Miller asserted a loss-of-consortium claim, also seeking compensatory and punitive damages.

H.R.H. filed its answer on January 14, 1999. H.R.H. generally denied the allegations of the complaint and asserted the affirmative defenses of contributory negligence and assumption of the risk.

Much of the pretrial procedural history of this case is not relevant to this appeal. However, H.R.H. does contend that the trial court erred in its rulings on a motion for partial summary judgment filed by the Millers and on a motion for partial summary judgment filed by H.R.H.

The Millers filed a motion for partial summary judgment, seeking a “finding [as a matter of law] that Miller Machine Company, the employer of Plaintiff, Carl Miller, was a ‘subcontractor’ of the Defendant, H.R.H. Metals, Inc., at the time the incident made the basis of this lawsuit occurred.” H.R.H. filed a motion for “a partial summary judgment in its favor with respect to that count of the Complaint filed by Plaintiffs Carl and Virginia Miller, which seeks to recover from H.R.H. under a ‘breach of contract/third-party beneficiary’ theory.” The trial court disposed of those motions in a “partial summary judgment,” which provided, in pertinent part:

“This cause came on to be heard on the motion for partial summary judgment filed by the plaintiffs, Carl Miller and Virginia Miller, and on the motion for partial summary judgment filed by the defendant, H.R.H. Metals, Inc....
“The undisputed facts show that the plaintiff, Carl Miller, an employee of Miller Machine Company, fell through a skylight while he was disassembling a metal building located at the Vulcan Material Company’s Dolcito Quarry in Tar-rant, Jefferson County, Alabama on August 29, 1997. The plaintiff suffered severe head injuries which have caused him to be totally and permanently disabled. The plaintiff contends that H.R.H. is liable for his injuries and other damages.
“In their motion, the plaintiffs ask the court to determine as a matter of law that the plaintiffs employer, Miller Machine Company, was a ‘subcontractor’ of the defendant, H.R.H., at the time of the plaintiffs injury. In the defendant’s motion, it asked the court to determine as a matter of law that the plaintiff is not a ‘third party beneficiary’ of the contract between H.R.H. and Vulcan.
“Essentially, both parties are asking the court to determine as a matter of law what legal duty, if any, H.R.H. owed the plaintiff at the time of his injury. The court agrees that there is no genuine issue of material fact as to this issue and that it is a question of law for the court’s determination.
“Based upon the evidentiary submissions, the pleadings and arguments of counsel, the court concludes that the plaintiff is entitled to the relief sought in his motion.
“The court concludes as a matter of law, and declares it to be the law of this case, that the plaintiffs employer, Miller [Machine] Company, was a subcontractor under the agreement(s) between Vulcan and H.R.H. and that the plaintiff, Carl Miller, was a third-party beneficiary of that contract(s). Therefore, the defendant owed plaintiff the legal duty it agreed to assume to the employees of subcontractors under the terms of the agreements between Vulcan and H.R.H.”

The case against H.R.H. proceeded to a jury trial. At the conclusion of the plaintiffs’ case, H.R.H. moved for a judgment as a matter of law (“JML”); the trial court denied the motion. H.R.H. again moved for a JML at the conclusion of all of the evidence; the trial court denied that motion also and submitted the case to the jury, which returned verdicts awarding Carl Miller $4,562,457.19 and Virginia Miller $2,125,000. The verdicts were for compensatory damages only.

After the trial court entered a judgment on the jury verdicts, H.R.H. filed a motion for a JML or, in the alternative, for a new trial or a remittitur. The trial court denied that postjudgment motion, and H.R.H. appealed.

III.

H.R.H. argues that the trial court erred in concluding, as a matter of law, that Carl Miller’s employer, Miller Machine Company, was a subcontractor under the terms of the agreement between H.R.H. and Vulcan. We find that argument to be without merit.

Stated simply, a subcontractor is one who “perform[s] some portion of the contract of the general contractor.” Pinecrest Apartments, Ltd. v. R.P. McDavid Co., 535 So.2d 126, 128 (Ala.1988). In Pinecrest Apartments, Ltd., this Court approved the following definition as the “common understanding” of the term “subcontractor”:

“ ‘Subcontractor. One who takes portion of a contract from principal contractor or another subcontractor. Hardware Mut. Casualty Co. v. Hilderbrandt, C.C.A. Okl., 119 F.2d 291, 297, 299 [(10th Cir.1940)]. One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance. One who takes from the principal or prime contractor a specific part of the work undertaken by the principal contractor. Royal Indemnity Co. v. Kenny Constr. Co., C.A. Ill., 528 F.2d 184, 191 [(7th Cir.1975), cert. denied sub nom. City of Chicago v. Kenny Constr. Co., 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976)].’ ”

535 So.2d at 128, quoting Black’s Law Dictionary 1277 (5th ed.1979). It is clear that Miller Machine falls within this definition.

H.R.H. admits that it “agreed to purchase and remove the three buildings which made up Vulcan’s Agri-Lime Plant located at the Dolcito Quarry.” Brief of Appellant, at 11. One of those three buildings was the bag house, which H.R.H. sold to Miller Machine and which Miller Machine agreed “to take down and remove.” Where Miller Machine undertook from H.R.H. a specific portion of the work undertaken by H.R.H. in its agreement with Vulcan, Miller Machine was a subcontractor as that term is commonly understood. Although the transaction between H.R.H. and Miller Machine bore an element of a sale, Miller Machine was undertaking to remove the bag house, one of the buildings H.R.H. was contractually bound to remove from Vulcan’s premises. See Nationwide Mut. Ins. Co. v. Davis, 146 Ga.App. 68, 245 S.E.2d 322 (1978).

IV.

H.R.H. argues that the trial court erred in holding, as a matter of law, that Carl Miller was a third-party beneficiary of the contract between H.R.H. and Vulcan, and that, therefore, H.R.H. owed Miller a duty with regard to on-the-job safety. We find that argument to be without merit.

The controlling principles concerning the proof of third-party-beneficiary claims are well established.

“ ‘[I]t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to his incidental, benefit.’ Mills v. Welk, 470 So.2d 1226, 1228 (Ala.1985). ‘To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached.’ Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc. 512 So.2d 99, 101-02 (Ala.1987).”

McGowan v. Chrysler Corp. 631 So.2d 842, 848 (Ala.1993).

These third-party-beneficiary principles focus upon the intent of the contracting parties. In determining the parties’ intent, we must first look to the contract itself, because, while “[t]he intention of the parties controls in construing a written contract,” “the intention of the parties is to be derived from the contract itself, where the language is plain and unambiguous.” Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993). It is only where a contract provision is found to be ambiguous that it may become necessary to consider the surrounding circumstances and the construction the parties gave the language in order to determine the intent of the contracting parties. Mann v. GTE Mobilnet of Birmingham, Inc., 730 So.2d 150 (Ala.1999). The question whether a contract is ambiguous is a legal question for the trial court. Id.

The trial court obviously concluded that the contract between Vulcan and H.R.H. was unambiguous and that the contract reflected those parties’ clear intention to bestow a direct benefit upon Carl Miller, as an employee of a subcontractor. Otherwise, the trial court could not have concluded, as a matter of law, that Carl Miller was a third-party beneficiary of that eon-tract, to whom H.R.H. owed “the legal duty it agreed to assume to the employees of subcontractors under the terms of the agreements between Vulcan and H.R.H.” The trial court did not err in reaching those conclusions.

Paragraph 5 of the agreement between Vulcan and H.R.H. is not ambiguous. It clearly required H.R.H. to ensure that its subcontractors received all necessary health and safety training. H.R.H. specifically agreed “to follow Vulcan’s safety rules and to maintain its own safety and health program for its employees, subcontractors and agents sufficient to prevent injury or illness to such persons resulting from, their presence on the Vulcan premises.” (Emphasis added.) The emphasized language reflects an intention on the part of the contracting parties to bestow a direct benefit upon Carl Miller, as an employee of Miller Machine, a subcontractor.

This is not the first time this Court has dealt with a contractor’s duties under a contract provision providing for the safety of project workers. In Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 605, 235 So.2d 371, 375 (1970), this Court reviewed its prior holdings:

“We held in Blount Brothers Construction Company v. Rose, 274 Ala. 429, 437, 149 So.2d 821 (1962), that under the provisions of a prime contractor’s contract with the government to furnish safety devices for the project, such provisions enure to, and are made for, the benefit of employees of subcontractors on the project. Such contract, we said, ‘imposed the duty on appellant [the contractor] to provide a reasonably safe place for Mr. Rose [employee of the sub-contractor] and his fellow workers to work on this project. Tennessee Coal, Iron and R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Evans v. Patterson, 269 Ala. 250, 112 So.2d 194.’
“Both in Blount Brothers Construction Company v. Rose, supra, and in Tennessee Coal, Iron and R. Co. v. Sizemore, supra, the contract provisions provided for the safety of employees. We said, in Tennessee Coal, Iron & R. Co. v. Sizemore, supra:
“ ‘Under such circumstances, the injured employee, who is a party to the contract or one for whose direct benefit it was made, may sue for its breach in assumpsit, or may sue in tort for negligence in failing to perform a duty imposed by law. He has an election in that respect. (Citations omitted.)’ ”

Our holding today is consistent with, and is required by, those precedents.

V.

H.R.H. argues that the trial court erred in denying its motion for a JML on the negligence claim, because,, it insists, Carl Miller was contributorily negligent as a matter of law. However, we have concluded that this argument was not preserved for appeal and, therefore, is not before us for review.

At the close of the plaintiffs’ evidence, counsel for H.R.H. orally moved for a JML, stating, in pertinent part:

“[W]e would move for a [JML] with regard to the negligence count, saying that the plaintiff has failed to meet his burden of proof with regard to each and every element of the negligence claim. And we’d further assert that, as a matter of law, the facts in this case establish that the plaintiff was contributorily negligent.”

In order to preserve for appeal the argument that Miller was contributorily negligent as a matter of law, H.R.H. was required to renew its motion for a JML on that ground at the conclusion of all of the evidence. Burge v. Parker, 510 So.2d 538 (Ala.1987); Denton v. Foley Athletic Club, 578 So.2d 1314 (Ala.Civ.App.1990).

Counsel for H.R.H. did not refer to the contributory-negligence argument when he renewed the motion for a JML at the conclusion of all of the evidence. Instead, with regard to the negligence claim, counsel stated: “[W]e move for a [JML] as to the negligence count on the basis that the plaintiff has failed to carry [his] burden of proof with the evidence submitted.” The motion for a JML on that ground was not sufficient to preserve for appeal the argument that Miller was contributorily negligent as a matter of law.

VI.

H.R.H. argues that the trial court’s instruction to the jury on the defense of contributory negligence was erroneous. We have concluded that the trial court erred in instructing the jury on the defense of contributory negligence and that its error requires the reversal of its judgment.

In defining contributory negligence, the trial court initially stated:

“Now, in addition to their plea of not guilty, the defendant says that Mr. Miller was guilty of contributory negligence, and let me define that for you. I’ve told you what negligence is. It’s failure to act as a reasonably prudent person would have acted under the same or [similar] circumstances. Well, it’s the same thing on the part of the plaintiff. Contributory negligence simply means that the plaintiff himself was negligent and that his negligence proximately or directly contributed to his own injuries. The plaintiff has the burden of proof initially of showing negligence and proximate cause. But contributory negligence is an affirmative defense, and the defendant has the burden of proving that defense to your reasonable satisfaction.”

H.R.H. does not allege any error in this introductory portion of the instruction on the contributory-negligence defense. Obviously, to that point, the charge was neither misleading nor erroneous. See Hicks v. Vulcan Eng’g Co., 749 So.2d 417, 424-25 (Ala.1999); American Furniture Galleries v. McWane, Inc., 477 So.2d 369 (Ala.1985). However, the trial court then proceeded to instruct the jury on what it described as “the three elements essential for [the jury] to find contributory negligence in cases of this kind”:

“Now, the three elements essential for you to find contributory negligence in cases of this kind are that the party charged — 'that is the plaintiff — with contributory negligence had knowledge of the existence of the dangerous condition and, 2) with the appreciation of such danger, 3) failed to exercise reasonable care for his own safety by putting himself in the way of such known danger. So you must find, in order to find Mr. Miller guilty of contributory negligence which would bar his recovery under the negligence count, you must find that he put himself in the way of danger, and you must also find that he appreciated the danger he confronted. You must be reasonably satisfied that Mr. Miller’s appreciation of the danger was a conscious appreciation of that danger at the moment that the incident occurred.”

(Emphasis added.)

H.R.H. argues that the trial court erred by “engrafting] the conscious appreciation element of assumption of the risk into its contributory negligence charge.” Brief of Appellant, at 25. We agree.

As this Court has recently stated, the affirmative defense of assumption of the risk is a form of contributory negligence that involves the plaintiffs actual appreciation of a known risk.

“The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger. Gulf Shores Marine Indus., Inc. v. Eastburn, 719 So.2d 238, 240 (Ala.Civ.App.1998). Assumption of the risk is described as 'a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk.’ Cooper v. Bishop Freeman Co., 495 So.2d 559, 563 (Ala.1986), overruled on other grounds, Burlington Northern R.R. v. Whitt, 575 So.2d 1011 (Ala.1990). This Court has held that ‘[assumption of the risk proceeds from the injured person’s actual awareness of the risk.’ McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991) (emphasis added).”

Ex parte Potmesil, 785 So.2d 340, 343 (Ala.2000).

With regard to assumption of'the risk, “the plaintiffs state of mind is determined by [a] subjective standard.” McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991). Here, the trial court’s charge clearly engrafted a subjective standard (conscious appreciation) onto the contributory-negligence defense. In doing so, it erred, because contributory negligence involves an objective standard. Id.

Although contributory negligence may be predicated upon a finding of assumption of the risk, “it has long been recognized that contributory negligence may also be predicated upon the failure to appreciate the danger when there is a reasonable opportunity to do so under the circumstances.” Alabama Power Co. v. Mosley, 294 Ala. 394, 398, 318 So.2d 260, 263 (1975)(emphasis added). That principle was reaffirmed in Sprouse v. Belcher Oil Co., 577 So.2d, 443, 444 (Ala.1991):

“[Contributory negligence, while requiring proof of both knowledge and appreciation of the danger, does not require proof of a voluntary affirmative exposure to the danger [as does assumption of the risk]; rather, it merely requires proof that the plaintiff failed to exercise reasonable care.
“ ‘... [Contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.... [Contributory negligence involves] risks ivhich [the plaintiff] merely might have discovered by the exercise of ordinary care.’
“Koshorek v. Pennsylvania R.R., 318 F.2d 364 (3d Cir.1963).”

(Emphasis added.)

The Millers contend that the “conscious-appreciation” charge “is a correct statement of Alabama law, as it applies to these facts.” Brief of Appellees, at 57. Further, they tell us that they requested that the charge be given and that it “was drawn from identical language” contained in Hicks v. Commercial Union Insurance Co., 652 So.2d 211, 219 (Ala.1994). Brief of Appellees, at 57. They claim that this Court, in Hicks, “held that, for a plaintiff to be deemed to have been contributorily negligent, it must be found that he put himself in danger’s way, that he appreciated the danger confronted and, ‘[m]oreover, it must be demonstrated that the plaintiffs appreciation of the danger was a conscious appreciation at the moment the incident occurred.’ 652 So.2d at 219 (citations omitted).” Brief of Appellees, at 57. However, the Millers misstate the holding in Hicks, and obviously led the trial court into error with their requested charge.

In Hicks, this Court was merely stating the well-established “standard for determining whether a person was contribu-torily negligent as a matter of law.” 652 So.2d at 219. There is no merit to the Millers’ contention that this Court in Hicks was defining the elements of contributory negligence, one of which is not, under the controlling precedents, a conscious appreciation of the danger.

“A party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis of the granting of a new trial.” Nunn v. Whitworth, 545 So.2d 766, 767 (Ala.1989). However, “[r]eversal is warranted only when the error is considered to be prejudicial.” King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala.1991). The Millers argue that the contributory-negligence charge, taken as a whole, was neither misleading nor prejudicial. Their argument is without merit. Indeed, nothing in the jury instruction contradicts or clarifies the trial court’s instruction that the jury “must be reasonably satisfied that Mr. Miller’s appreciation of the danger was a conscious appreciation of that danger at the moment that the incident occurred.” That error obviously prejudiced H.R.H. and entitles it to a new trial.

VII.

H.R.H. raises other procedural and evi-dentiary issues on appeal. However, because we hold that H.R.H. is entitled to a new trial, it is not necessary for us to address those other issues. For the reasons previously stated, the judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

“Oh, don’t let me commence!” (Again.)

Contributory negligence is a common-law dinosaur. However, attempts to abolish it in Alabama and adopt comparative negligence in its place have failed. Although the doctrine of contributory negligence is pro-defendant, there are many pro-plaintiff legal concepts, such as joint and several liability, that would have to be changed if Alabama adopted comparative negligence.

I appreciate, but regret, the confusion that has developed around this doctrine of contributory negligence, which has long since been replaced by the legislature or the judiciary in other states. In my opinion, the majority opinion accurately expresses the current state of the law.

      . The additional defendants were Vulcan and Ronnie Bridges d/b/a Southern Dismantling. The Millers ultimately dismissed their claims against Vulcan. On August 4, 2000, a jury returned a verdict in favor of Ronnie Bridges d/b/a Southern Dismantling; that same jury was unable to reach a verdict with regard to the Millers’ claims against H.R.H., and a second trial was held as to those claims. The Millers have not appealed from the judgment in favor of Bridges.

      . The Millers also rely upon Smith v. U.S. Construction, 602 So.2d 349 (Ala.1992). However, like Hides, Smith simply deals with the standard for determining whether a person was contributorily negligent as a matter of law.

      . Truman Capote, Music for Chameleons 186 (Random House 1980). See Bassie v. Obstetrics & Gynecology Assocs. of Northwest Alabama, P.C., 828 So.2d 280, 285 (Ala.2002) (Houston, J., concurring specially).

      . See Golden v. McCurry, 392 So.2d 815 (Ala.1980); Central Alabama Elec. Coop. v. Tapley, 546 So.2d 371, 381 n. 1 (Ala.1989), “This Court might be willing to again entertain, in an appropriate case, the idea of adopting the doctrine of comparative negligence.” This footnote resulted in a challenge to the doctrine of contributory negligence. Williams v. Delta Int'l Mach. Corp., 619 So.2d 1330, 1333-34 (Ala.1993) (Houston, J., concurring specially).

      .Since I have been a Justice on this Court, I have served as a juror in a personal-injury and wrongful-death case arising out of a truck crashing into some equipment on a state highway. The driver of the truck, a plaintiff in the action, was injured, and his passenger, whose estate was a plaintiff, was killed in the accident. I was elected foreperson of the jury, and I agreed to serve with the understanding that I would not express my opinion until all of the other jurors expressed their opinions. The jury, without concern for the initial legal liability of the defendant, found that the injured plaintiff and the decedent had been contributorily negligent, and it was ready to return a verdict for the defendant. I had to remind the jury that the only evidence of contributory negligence was the failure to keep an adequate lookout, and the undisputed evidence showed that the deceased passenger was blind.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Thomas L. PHILLIPS and John David Phillips v. AmSOUTH BANK.
    1010207.
    Supreme Court of Alabama.
    April 19, 2002.

      Katherine A. Harbison and J. Paul Zimmerman of Gentle, Pickens, Eliason & Turner, Birmingham, for appellants.
    Maibeth J. Porter and Lorrie L. Har-grove of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.
   WOODALL, Justice.

Thomas L. Phillips and John David Phillips appeal from a “summary judgment” against them in their action against Am-South Bank (“AmSouth”). We reverse and remand.

Thomas Phillips and John Phillips, the beneficiaries of a trust created by the will of J.T. Phillips, their grandfather, sued AmSouth. Them complaint alleged, among other things, that AmSouth, as a “quasi trustee and as a trustee in invitum,” had breached its fiduciary duties to them as beneficiaries and had engaged in “misrepresentation and fraudulent suppression” in connection with the investment and disposition of the trust assets. The relief requested included compensatory and punitive damages, in addition to a judgment declaring AmSouth a constructive trustee “of all assets wrongfully obtained by [it]” and imposing an “equitable lien on the proceeds derived from any assets wrongfully obtained” from the testamentary trust.

On May 1, 2001, AmSouth filed a motion to dismiss the complaint, on the ground that the claims were barred by the statute of limitations. Accompanying the motion was the affidavit of W. Baker Crowe IV, a senior vice president of AmSouth. On June 14, 2001, the plaintiffs moved in the alternative to strike the affidavit, or, pursuant to Ala. R. Civ. P. 56(f), to afford them a reasonable opportunity to conduct discovery before the court ruled on the motion. More specifically, they stated:

“36. Plaintiffs have had no opportunity to explore the contents of any of the documents referred to by Mr. Crowe. Plaintiffs have also not been able to conduct any discovery as to possible missing documents, or as to the eonclu-sory allegations made by Mr. Crowe in his affidavit.
“37. Plaintiffs have also not been able to conduct discovery with respect to other factual matters relating to the underlying claim.
“38. According to Alabama Rules of Civil Procedure 56(f), this court should deny the Motion for Summary Judgment or order a continuance of the matter to allow Plaintiffs the opportunity to conduct discovery to adequately respond to AmSouth’s Motion. Plaintiffs must have an opportunity to present a genuine issue of material fact. Without the opportunity to test the facts alleged in the affidavit of Baker Crowe, and other material issues in the Complaint, Plaintiffs are prevented, at the outset, from having the opportunity to present evidence to justify any issue of fact.”

The plaintiffs also submitted, pursuant to Rule 56(f), the affidavit of their attorney, endeavoring “to show why Plaintiffs [could not] present facts essential to [their] opposition to the Defendant’s Motion” in the absence of discovery.

The trial court declined to strike the affidavit or to postpone ruling on Am-South’s motion. Instead, five days after the plaintiffs filed their motion, it granted AmSouth’s motion to dismiss. The trial court did not state whether it considered Mr. Crowe’s affidavit. The plaintiffs filed a motion to “reconsider,” in which they reiterated their request to strike the affidavit or afford them time for discovery. After this motion was denied, they appealed.

On appeal, the plaintiffs contend, among other things, that “because the trial court dismissed the case on AmSouth’s [Ala. R. Civ. P.] 12(b)(6) Motion which included a substantive affidavit, [it] committed reversible error by prohibiting discovery regarding AmSouth’s factual assertions.” Appellants’ Brief, at 11-12. We agree with this contention.

Rule 12(b) provides in part:

“If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”

(Emphasis added.)

When materials outside the pleadings accompany a motion to dismiss, the trial court is “not bound to limit itself to the pleadings.” Papastefan v. B & L Constr. Co., 356 So.2d 158, 160, (Ala.1978). “[W]here matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment ... regardless of its denomination and treatment by the trial court.” Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986). Indeed, unless the trial court expressly declines to consider the extraneous material, its conclusions may be construed to include the extraneous material. Cf. Ex parte Liberty Nat’l Life Ins. Co., 825 So.2d 758, 763 n. 1 (Ala.2002) (trial court’s express refusal to consider extraneous material constituted an exclusion).

The text of Rule 12(b) is clear and obligatory — when a motion to dismiss is converted to a motion for a summary judgment, the motion shall be “disposed of as provided in Rule 56[, Ala. R. Civ. P.],” and the nonmovant “shall be given reasonable opportunity to present all material made pertinent to such a motion.” (Emphasis added.) Construing Rule 12 and Rule 56 together, this Court has stated: “Together, Rules 12 and 56 require that the nonmovant receive (1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition.” Graveman v. Wind Drift Owners’ Ass’n, 607 So.2d 199, 202 (Ala.1992). In considering whether the nonmovant has been afforded a reasonable opportunity to present material in opposition to the motion, the court must consider the purpose of Rule 56(f). “Rule 56(f) protects a party opposing a motion for summary judgment if the party states reasons why he cannot present essential facts.” Starks v. Commercial Union Ins. Co., 501 So.2d 1214, 1216 (Ala.1987). “The rule ‘should be liberally applied to allow parties an ample opportunity to marshal necessary facts to support their respective positions.’ ” Id. (quoting Central Accep tance Corp. v. Colonial Bank of Alabama, N.A., 439 So.2d 144, 147 (Ala.1983)).

AmSouth’s motion was converted to a summary-judgment motion by the submission of, and the trial court’s constructive consideration of, Crowe’s affidavit. Indisputably, there has been no discovery. Because the plaintiffs properly challenged the conversion of the motion to dismiss, their motion to strike the affidavit, or, in the alternative, for a postponement of a ruling on the motion was due to be granted. The trial court abused its discretion, therefore, in ruling on AmSouth’s motion, only five days after the plaintiffs made their objection.

We hasten to add that we express no opinion as to the merits of AmSouth’s motion. However, because the judgment granting that motion was premature, that judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, and JOHNSTONE, JJ., concur.

      . Rule 56(f) states:
      "Should it appear from the affidavits of a party opposing the motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion
        tor summary judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just."


author: LYONS, Justice.

text:
    HOOVER, INC. v. STATE DEPARTMENT OF REVENUE.
    1010281.
    Supreme Court of Alabama.
    April 19, 2002.

      Blake A. Madison and David E. Rains of Tanner & Guin, L.L.C., Tuscaloosa; and Bruce P. Ely of Bradley, Arant, Rose & White, L.L.P., Birmingham, for appellant.
    Bill Pryor, atty. gen.; and J. Wade Hope and Margaret J. McNeill, asst, counsel, Department of Revenue and asst, at-tys. gen., for appellee.
   LYONS, Justice.

Hoover, Inc., appeals from a summary judgment entered in favor of the State Department of Revenue (“the Department”). We reverse and remand.

Hoover is a Tennessee corporation that sells crushed stones and other products in the southeastern United States. Hoover operates three sales offices in Alabama, and one of its quarries is located in Colbert County. During the years 1996 through 1999, Hoover sold crushed stone from the Colbert County facility to certain Mississippi governmental entities. It did not collect Alabama sales tax on those sales. On October 11, 2000, the Department entered a final assessment against Hoover, assessing $159,520.27 in additional sales tax due for the period July 1996 through June 1999.

Hoover filed a complaint against the Department in the Colbert Circuit Court, appealing the final assessment. Hoover’s complaint alleges that the practice of exempting instrumentalities and municipalities of the State from the payment of the sales tax, while imposing a sales tax on sales to governmental entities in Mississippi, violates the Commerce Clause of the United States Constitution (Art. 1, § 8, cl.3). Hoover relies on § 40-23-4(a)(17), Ala.Code 1975, exempting from the sales tax the “gross proceeds of sales of tangible personal property ... which the state is prohibited from taxing under the Constitution or laws of the United States or under the Constitution of [Alabama].”

The Department moved for a summary judgment, arguing that § 40-23-4(a)(11), Ala.Code 1975, does not apply to Hoover’s sales to Mississippi governmental entities. It argued that § 40-23-4(a)(11) exempts from sales tax the gross proceeds of sales of tangible personal property to the State of Alabama, to counties within the State, and to incorporated municipalities within the State. Neither party submitted any evidentiary materials in support of or in opposition to the Department’s summary-judgment motion. The trial court entered a summary judgment in favor of the Department.

Hoover’s complaint alleged that the Department treated ostensibly similarly situated transactions disparately. The Department relies upon State v. Leary & Owens Equipment Co., 54 Ala.App. 49, 304 So.2d 604 (Ala.Civ.App.1974), which held that the imposition of the gross-receipts tax on sales of repair parts to county governments of a neighboring state was valid, where the transactions were conducted entirely within Alabama, despite the contention that the out-of-state counties were exempt from Alabama tax. Hoover argues that several significant decisions of the United States Supreme Court decided after Leary & Owens compel the conclusion that Leary & Owens is no longer an accurate statement of the law.

Hoover contends that genuine issues of material fact relating to the Department’s justification for any discriminatory treatment in the collection of sales taxes preclude the entry of a summary judgment for the Department. In the alternative, Hoover contends that if no genuine issue as to any material fact exists, the trial court erred as a matter of law in failing to strike down as unconstitutional the Department’s practice of collecting sales taxes from Mississippi governmental entities while exempting from taxation sales to Alabama governmental entities. Hoover faults the Department for failing to offer any proof indicating that its taxation of out-of-state governmental entities is in any way compensatory for taxes local Alabama governments do not pay. In its brief, the Department completely ignores the United States Supreme Court decisions relied upon by Hoover, standing instead on Leafy & Owens and the presumption of correctness attached to a final assessment recognized in Hamm v. Harrigan, 278 Ala. 372, 178 So.2d 529, opinion extended, 278 Ala. 521, 179 So.2d 154 (1965), and S.H.J. v. State Department of Revenue, 682 So.2d 1354 (Ala.Civ.App.1995). The Department also relies on State v. Bankhead Mining Co., 279 Ala. 566, 188 So.2d 527 (1966), and Brundidge Milling Co. v. State, 45 Ala.App. 208, 228 So.2d 475 (Ala.Civ.App.1969), both of which place the burden on the taxpayer to establish its entitlement to an exemption.

I. Standard of Review

This Court’s standard of review of a summary judgment is well established:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12-21—12(d)[,] Ala. Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).’ ”

Payton v. Monsanto, 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

II. Burden of Proof

In State v. Alabama Municipal Insurance Corp., 730 So.2d 107, 112 (Ala.1998), this Court held:

“Taxpayers arguing that a state taxation statute violates the Equal Protection Clause of the Federal Constitution carry a heavy burden. For example, the
Supreme Court has stated that ‘[p]arties challenging legislation under the Equal Protection Clause cannot prevail so long as “it is evident from all the considerations presented to [the legislature], and those of which [the court] may take judicial notice, that the question [whether the rational relationship test was met] is at least debatable.” ’ [Western & Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648,] 674, 101 S.Ct. 2070, 68 L.Ed.2d 514 [ (1981) ], quoting United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).”

In a dissenting opinion in Concordia Fire Insurance Co. v. Illinois, 292 U.S. 535, 54 S.Ct. 830, 78 L.Ed. 1411 (1934), Justice Cardozo expressed a similar view:

“The burden is on the appellant who would strike the statute down, and not on the state which invokes the presumption of validity. Weaver v. Palmer Bros. Co., 270 U.S. 402, 410, 46 S.Ct. 320, 70 L.Ed. 654 [ (1926) ]; Detroit Bridge Co. v. Tax Board of Michigan, 287 U.S. 295, 297, 53 S.Ct. 137, 77 L.Ed. 314 [ (1932) ]. ‘As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.’ O’Gorman & Young, Inc. v. Hartford Fire Insurance Co., 282 U.S. 251, 257, 51 S.Ct. 130, 132, 75 L.Ed. 324, 72 A.L.R. 1163 [ (1931) ]; Lawrence v. State Tax Commission of Mississippi, 286 U.S. 276, 283, 52 S.Ct. 556, 76 L.Ed. 1102, 87 A.L.R. 374 [ (1932) ]; Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 42, 53 S.Ct. 431, 77 L.Ed. 1015 [ (1933) ]. Here the foundation fails, and with it the assault.”

292 U.S. at 558, 54 S.Ct. 830 (emphasis added).

From the foregoing, it might appear that the taxpayer has the burden of proof. However, we are dealing here with an alleged violation of the Commerce Clause. In Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996), the Supreme Court held that “[s]tate laws discriminating against interstate commerce on their face are ‘virtually per se invalid.’ ” 516 U.S. at 331, 116 S.Ct. 848 (quoting Oregon v. Waste Systems, Inc. v. Department of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)). The Court also observed:

“As we have said, a State that invokes the compensatory tax defense must identify the intrastate tax for which it seeks to compensate, and it should go without saying that this intrastate tax must serve some purpose for which the State may otherwise impose a burden on interstate commerce.”

516 U.S. at 334, 116 S.Ct. 848 (citation omitted).

The Department’s reliance on the presumption of correctness of a final assessment recognized in Hamm v. Harrigan, supra, and S.H.J. v. State Department of Revenue, supra, is misplaced, because these cases were not dealing with a taxing statute that is discriminatory on its face. Likewise, State v. Bankhead Mining Co., supra, and Brundidge Milling Co. v. State, supra, do not deal with exemptions allegedly arising from taxing statutes that on their face discriminate against interstate commerce. Consequently, we conclude that the Department had the burden of establishing a defense to a facially discriminatory tax scheme.

In Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999), dealing with the burden of proof on a motion for summary judgment, this Court adopted Justice Houston’s special concurrence in Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989): “ ‘The manner in which the movant’s burden of production is met depends upon which party has the burden of proof ... at trial.’ ” Because at trial the Department has the burden of proof to justify a law that on its face discriminates against interstate commerce, the trial court erred in entering a summary judgment in favor of the Department on a record where the Department offered no evidentiary justification for the discriminatory impact.

III. The Appropriate Mandate

The remaining issue is whether to reverse the judgment and render a judgment in its place or to reverse the judgment and remand the case. A summary judgment can be entered in favor of the nonmoving party. Green v. Dixon, 727 So.2d 781, 783 (Ala.1998). An appellate court has the authority to do so under § 12-22-70, Ala.Code 1975 (“The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings or enter such judgment or decree as the court below should have entered or rendered, when the record enables it to do so.”). Whether this Court should render a judgment on appeal is limited to instances where “the record ... demonstrate^] that all facts on the issue in question are before the appellate court, and those facts must establish that the party is entitled to a judgment as a matter of law.” Eubanks v. Hale, 752 So.2d 1113, 1134 (Ala.1999).

Such a conclusion as to the sufficiency of the facts cannot be made from this record. We accept Hoover’s primary contention that a summary judgment is precluded by the trial court’s incorrect determination that there were no genuine issues of material fact relating to the Department’s justification for any discriminatory treatment in assessing sales taxes. We reverse the judgment and remand the case for further proceedings.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.


author: HOUSTON, Justice. MOORE, Chief Justice

text:
    Bernard McCASTER v. Madeline JACKSON.
    1010356.
    Supreme Court of Alabama.
    April 19, 2002.

      Michael S. Harper of Harper & Smith, P.C., Tallassee; and Karen Neal Knight of Carter & Knight, Montgomery, for appellant.
    Christopher J. Hughes of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellee.
   HOUSTON, Justice.

This is an appeal by the plaintiff, Bernard McCaster, from a summary judgment for the defendant, Madeline Jackson. We affirm in part, reverse in part, and remand.

Considering the evidence, both undisputed and disputed, most favorably to McCaster, the nonmovant, as our standard of review requires, see Rodgers v. Hopper, 768 So.2d 963, 965 (Ala.2000), we glean the following relevant facts: In August 1996, Madeline Jackson and her dog, a 60-pound Labrador/shar-pei mix, moved in with her mother, Mary R. Jackson, at 3508 South-view Ave., Montgomery; Mary was suffering from lung cancer. Madeline Jackson lived at that address until the day of the incident made the basis of this action.

McCaster was employed as a delivery person by Price Pharmacy; he delivered prescription drugs to the Jackson house on a regular basis. When he made a delivery to the Jackson house, McCaster would park his truck, leave the door to the truck open, go up the stairs to the front porch, leave the package from the pharmacy by the front door, and knock. Each time he made a delivery to the Jackson house, he heard what sounded like a large dog barking and scratching on the other side of the door.

On April 29, 1998, McCaster followed his regular routine in delivering drugs to the Jackson house. After he put the drugs by the front door and knocked, he started back to the truck. Madeline Jackson opened the door, and McCaster turned to see the barking dog run past her and toward him. The dog got within four feet of McCaster, who was running toward his truck. McCaster fell trying to escape the dog and injured both knees and his shoulder. Jackson got control of the dog after McCaster fell. McCaster incurred substantial medical expenses as a result of his fall.

McCaster sued Jackson, the estate of Mary Jackson and its executor, Richard L. Frame, and Jackson’s sister, Marcia J. Belcher. In Count I, he alleged common-law negligence; in Count II, he alleged wantonness. In Count III, he in effect alleged a violation of § 3-6-1, Ala.Code 1975; his complaint states:

“[T]hat a dog over which Defendants had ownership and/or control injured Plaintiff ... without provocation.
“At the time, the dog injured Plaintiff, Plaintiff was at a place where he ... had a legal right to be.
“Defendants owned or controlled the premises on which the injury occurred.”

Alabama Code 1975, § 3-6-1, provides:

“If any dog shall, without provocation, bite or injure any person who is at the time at a place where he or she has a legal right to be, the owner of such dog shall be liable in damages to the person bitten or injured, but such liability shall arise only when the person so bitten or injured is upon property owned or controlled by the owner of such dog at the time such bite or injury occurs or when such person has been immediately prior to such time on such property and has been pursued therefrom by such dog.”

(Emphasis added.)

Each defendant filed a separate motion for a summary judgment and included supporting evidence. Included as ground two in the motions filed by the Jackson estate, Frame, and Belcher was the following statement:

“That the undisputed evidence has established that Ala.Code ... § 3-6-1 [is] inapplicable in this case to [each of the three named defendants].”

Madeline Jackson’s motion for a summary judgment did not include this statement as a ground, but alleged as grounds simply “that there is no genuine issue as to any material fact and that she is entitled to a judgment as a matter of law.” In her amended answer, she had averred: “2. This Defendant denies that she owned or controlled the premises on which the incident giving rise to this suit occurred, as alleged in the Plaintiffs complaint, and demands strict proof thereof.”

We are persuaded that the trial court did not err in entering a summary judgment for Madeline Jackson on Counts I and II (common-law negligence and wantonness).

When the Legislature of Alabama in 1953 enacted a form of strict liability for dog-injury cases (Chapter 6 of Title 3, Code of Alabama), it preserved the common-law right of action: “Nothing in this chapter shall be construed as diminishing any right or liability for injury by dog bites now existing under the laws of this state.” Ala.Code 1975, § 3-6-4.

“‘[U]nder the common law, scienter on the part of the owner must be alleged and proved by the plaintiff. The crucial issue is “whether the owner knows, or had reason to know, of the animal’s dangerous propensities.” Allen v. Whitehead, 423 So.2d 835 (Ala.1982).’ ”

Herring v. Cunningham, 507 So.2d 1324, 1325 (Ala.1987).

Madeline Jackson sufficiently established that she had no knowledge, before the incident in which McCaster was injured, that the dog had any dangerous propensities. McCaster did not provide substantial evidence indicating that Madeline Jackson had knowledge of the dog’s dangerous propensities by proving that the dog barked at people, Herring v. Cunningham, supra; Rucker v. Goldstein, 497 So.2d 491 (Ala.1986); by proving that the dog was large and mean looking, Allen v. Whitehead, 423 So.2d 835 (Ala.1982); or by proving that on one occasion the dog jerked on the leash Madeline Jackson was holding when the dog saw another dog. Humphries v. Rice, 600 So.2d 975, 977 (Ala.1992). No evidence was introduced indicating that a Labrador/shar-pei mix, or a Labrador retriever, or a shar-pei has vicious propensities. Humphries, supra. Therefore, the trial court did not err in entering a summary judgment on Counts I and II.

Madeline Jackson argues that her liability under § 3-6-1 was not argued before the trial court. We do not agree. Not only did Count III of McCaster’s complaint track the language of § 3-6-1, the other three defendants, in their motions for a summary judgment, apparently recognized that they were being charged with liability under § 3-6-1; they each alleged “[t]hat the undisputed evidence has established that Ala.Code ... § 3—6—1 [is] inapplicable to [each of the three nonowners of the dog].” Madeline Jackson, the owner of the dog, in her answer to the complaint denies that “she owned or controlled the premises on which the incident giving rise to this suit occurred.” This is not an element of common-law liability; it is, however, an element of liability under § 3-6-1. Likewise, in her deposition, Jackson testified, as if proving provocation, that the dog did not start chasing McCaster until he looked around at the barking dog, yelled a profanity, and started running. We cannot hold that § 3-6-1 liability was not an issue in the trial court, because there was testimony before the trial court, when it entered the summary judgment, that McCaster did not provoke the dog, that he was at a place where he had a right to be, and that he was on or being chased by the dog from property controlled by Madeline Jackson when he was injured.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in part and dissents in part.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in affirming the trial court’s order entering a summary judgment for Jackson as to counts I and II of McCaster’s complaint; however, I dissent from the reversal of the trial court’s summary judgment for Jackson as to count III.

      . The trial court entered summary judgments for Frame, Belcher, Jackson, and the estate of Mary R. Jackson. McCaster appeals only as to the summary judgment for Madeline Jackson.


author: HARWOOD, Justice.

text:
    G. Hal WALKER, Jr. v. CITY OF MONTGOMERY.
    1010009.
    Supreme Court of Alabama.
    April 19, 2002.
    J. Doyle Fuller, Montgomery, for appellant.
    Robert A. Huffaker and Ben C. Wilson of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   HARWOOD, Justice.

G. Hal Walker, Jr., appeals the trial court’s summary judgment in favor of the City of Montgomery (hereinafter referred to as “the City”) and its denial of Walker’s motion for a partial summary judgment. We affirm.

The trial court aptly set out the underlying facts and procedural history of this case in its August 7, 2001, order entering a summary judgment for the City and denying Walker and another plaintiffs motion for a partial summary judgment, as follows:

“Plaintiff, G. Hal Walker, Jr., is an attorney engaged in private practice within the City of Montgomery as a salaried employee of Crumpton & Associates, L.L.C. Purporting to represent a class of similarly situated, salaried professionals, Plaintiff Walker initiated this action on February 7, 2001, with a Complaint alleging that the City of Montgomery collects a business or privilege license tax upon salaried professionals in violation of a 1957 enactment by the Alabama Legislature, Act No. 457, which provides, in pertinent part:
“ ‘No city within the State of Alabama having a population of not less than 100,000 nor more than 125,000, according to the last or any subsequent federal decennial census, shall have the power or authority to levy or impose any privilege license tax on all employees of employers working for wages, salaries, or other compensation, within the corporate limits or police jurisdiction of such city....’
“Plaintiff demanded a ‘permanent injunction, enjoining the City from levying or imposing privilege license taxes upon, or collecting the same from any person who is an “employee of [an] employer” and from otherwise attempting to enforce any ordinances relating thereto.’ In addition to attorney’s fees, the Complaint also sought ‘an Order requiring the City of Montgomery to refund all taxes, fees, penalties, fines or other such impositions which the City has collected from any member of the Plaintiffs class under authority or purported authority of any ordinances which impose a license tax upon “employees of [an] employer.” ’
“The City of Montgomery responded to the Complaint on March 14[, 2001,] with a Motion to Dismiss contending that Act No. 457 no longer applies to the City of Montgomery because the City outgrew its population bracket. The City filed a supporting memorandum on April 20, [2001,] and Plaintiff filed an opposing memorandum, which recited the issue raised by the Complaint as follows:
“ ‘In its memorandum in support of its motion to dismiss the City quite correctly states that the Plaintiffs case rests entirely on Act 457, 1957 Ala. Legis. (Act 457). The City is also correct that this case rests entirely on the question of whether, under the terms of Act 457, the City of Montgomery can “grow out of’ the coverage of Act 457.’
“At the scheduled hearing on April 25, [2001,] the parties agreed that the material facts were undisputed and that the determinative issue is whether the City of Montgomery can ‘grow out of the coverage of Act No. 457. Plaintiff requested an expedited proceeding for this determination, but the Court expressed reservations about the procedural propriety of deciding this controlling legal question in the context of a Motion to Dismiss. Counsel suggested to the Court three options — oral arguments on stipulated facts, an evidentiary hearing, or motions for summary judgment. Accordingly, the Court denied the Defendant’s Motion to Dismiss, and instead directed the parties to reach consensus on both the format and a mutually convenient date for the next proceeding. The Court’s April 26[, 2001,] Order setting a July 6[, 2001,] hearing in this cause reflected the parties’ consensus.
“The City’s Answer to the Complaint, filed May 30[, 2001,] asserted several affirmative defenses, including challenges to the constitutionality of Act No. 457 under the federal and state constitutions. Defendant gave due notice of this constitutional challenge to the Attorney General, as required by Ala.Code § 6-6-227 (1975), and the record reflects that all subsequently filed pleadings have been served upon the Attorney General. An amended complaint, filed on June 4, [2001,] added a second Plaintiff, John McLain, an engineer working within the City of Montgomery as a salaried employee of Jeffcoat Engineers & Surveyors. Defendant responded on June 18[, 2001,] with an amended answer.
“Defendant City filed on June 27[, 2001,] its Motion for Summary Judgment along with a memorandum brief, documentary exhibits and affidavits, and appeared to argue the Motion at the previously scheduled hearing on July 6[, 2001]. Plaintiffs did not appear, but in a pleading filed on July 9, [2001,] Counsel offered cause for his absence, and the Court granted Plaintiffs’ requested leave to respond. Plaintiffs filed on July 18[, 2001,] their Motion for Partial Summary Judgment supported by Plaintiffs’ Response to Defendant’s Motion for Summary Judgment.
“After duly considering all of the pleadings, evidentiary submissions, legal authorities and arguments, the Court concludes that this record clearly shows, and the parties agree, that there is no genuine issue as to any material fact. In their motion for partial summary judgment, Plaintiffs declare:
“ ‘This motion is based upon the City’s Motion for Summary Judgment and its “Summary of Undisputed Material Facts” and supporting evidence contained there. Put simply, the Plaintiff agrees [sic] with the Defendant’s recitation of the facts, agrees that those facts are the only ones material to the question, and agrees that those facts are undisputed. It is Plaintiffs’ contention however that it is they, rather than the City, who are entitled to a judgment on this issue.’
“This Court’s ruling on the parties’ opposing motions for summary judgment is guided, therefore, by the parties’ agreement that there is no genuine controversy on any material facts. Moreover, the parties agree on the determinative question of law, as succinctly stated by Plaintiffs: ‘whether, under the terms of Act 457, the City of Montgomery can “grow out of’ the coverage of Act 457.’ ”

(Emphasis omitted.)

The trial court granted the City’s motion for a summary judgment and denied Walker and McLain’s motion for a partial summary judgment on August 7, 2001. Walker filed a notice of appeal to this Court on September 8, 2001. In his brief to this Court, Walker states the issue presented in this appeal as:

“Whether the trial court erred in granting the Defendant’s Motion for Summary Judgment and denying the Plaintiffs’ Motion for Partial Summary Judgment on the basis that even though Act 457, Alabama Legislature 1957, at one time applied to the City of Montgomery, the Act ceased to apply when the City’s population outgrew the bracket established by Act 457.”

(Emphasis supplied by Walker.)

Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). Walker confirms what the trial court stated in its order, stating in his brief that “there were ... no material facts in dispute.” Therefore, our review is more appropriately limited to whether the trial court correctly determined that the City was entitled to a summary judgment as a matter of law.

The gist of Walker’s argument is that the City was “locked into” the population bracket set out in Act No. 457, 1957 Ala. Acts (hereinafter referred to as “the Act”), at the time of its passage in 1957. The materials submitted to the trial court show that in 1957, the records available from the 1950 federal decennial census reported that the City had a population of 106,525. Walker’s argument concentrates on the language in the Act stating that it applies to cities having populations between 100,000 and 125,000 “according to the last or any subsequent federal decennial census.” (Emphasis added.) He argues that the disjunctive “or” used in the statute, given the normal statutory construction, means that because the Act applied to the City at the time of its passage in 1957, it continues to apply today; Walker contends that while other cities could be brought within the purview of the Act by their reported populations in a subsequent federal decennial census, the City could not grow out of the population bracket set out in the Act.

The trial court’s August 7, 2001, order provided a thoughtful discussion of this issue. That order stated, in pertinent part:

“It is undisputed that Act No. 457 falls within that category of pre-Peddy-coart legislative enactments known as general acts of local application. Because such acts did not apply uniformly throughout the state, they were not general laws; because they were not preceded by the requirements of notice and publication mandated by the Alabama Constitution, they were not local laws. Shortly after the adoption of the 1901 Constitution ... and until its 1978 decision in Peddycoart, the Alabama Supreme Court allowed the legislature to use population classifications to restrict the scope of an act to the municipalities or counties which satisfied the population bracket. See Phalen v. Birmingham Racing Commission, 481 So.2d 1108, 1114 (Ala.1985).
“In an apparent effort to salvage the multitude of pre-Peddycoart general bills of local application, the Legislature secured the ratification of Amendment 389 to the Alabama Constitution, and ‘the effect of this Amendment was to validate all “bracket bills” enacted without advertising before January 13, 1978, the date of the Peddycoart decision, and which were not otherwise unconstitutional.’ Freeman v. Purvis, 400 So.2d 389, 391 (Ala.1981).
“This Court need not [sic] address Defendant’s constitutional challenges to Act No. 457 only if the Act still governs the City of Montgomery, and the issue of the applicability presents two questions[:] first, can the City legally outgrow the coverage of this 1957 population bracket bill, and if so, does the evidence establish that the City has exceeded the 100,000-125,000 population bracket. Since the parties are in accord that the City’s population increased beyond the bracket after the 1960 census, the Court’s determination rests on whether it is legally possible for the city to outgrow this bracket bill.
“As the parties have aptly observed, the Alabama Supreme Court’s decisions on population bracket bills rival only the Alabama Legislature’s propensity for enacting such bills before 1978. Although the Court has provided abundant authority that a governmental entity can grow into the coverage of a general bill of local application, it does not appear that the Court has been presented a case which mandates a precise holding that an entity can also grow out of such coverage. In two cases, however—Smith v. Lancaster, 269 Ala. 579, 114 So.2d 568, 571 (1959), and Robinson v. City of Montgomery, 485 So.2d 695, 696 (Ala.1986) ... — the factual contexts gave the Court reason to note that an entity can increase in population so that it falls outside the coverage of a bracket bill. In each case, the Court left no doubt that it aligns with the prevailing, well-established rule that a general law of local application depends for its validity on whether its population bracket applies to a class which is open, or shifting, to permit entry and exit based upon changes in an entity’s population.
“The rule is explained, as follows, in 2 Norman J. Singer, Sutherland Statutes & Statutory Construction, § 40.09, at 236-237 (5th ed.1992):
“ ‘A classification by population must be prospective to be general. An act limited to a particular census is a form of identification and is invalid, as no subsequent changes in population would enable other communities to come within the qualifications of the act. A decision concerning validity is usually based on whether by the terms of the act, it is possible for other local government units to come under the operation of the act at a later time by change in their populations .... Just as the classification must be open to admit entry of other local governments to the coverage of a statute as a result of changes in population which bring them within the qualifying ranges, subsequent changes in population must also operate to enable exit from the coverage of an act in order for it to be valid.’ (emphasis added.)
“See also Herbrand and Shapiro, Validity of Statutory Classifications Based on Population—Governmental Employee Salary or Pension Statutes, 96 A.L.R.3d 538, 543 (1979), and Sumter County v. Allen, [193 Ga. 171, 17 S.E.2d 567 (1941) ].
“The Court also finds persuasive the undisputed evidence of the Alabama Legislature’s acknowledgment that population bracket bills must permit entry and exit of cities or counties as their population increases. Numerous examples reflect a consistent pattern of legislative action and intent. When the Legislature intended to keep a city or county within the scope of a bracket bill after it had outgrown the population bracket, the Legislature enacted another bill which expanded the bracket; significantly, the new bill expressly referenced the previous legislation, the subsequent increase in population for the entity previously covered, and the legislative intent to continue that entity within the scope of coverage.

(Some emphasis omitted.)

In Montgomery County Commission v. Hobbie, 368 So.2d 264 (Ala.1979), this Court observed:

“In Belcher v. McKinney, 333 So.2d 136 (Ala.1976), we reiterated the three tests which must be met if an act based on a population classification is to be a general act: (1) ‘There must be a substantial difference in population; (2) the classification must be made in good faith; and (3) the classification must be reasonably related to the purpose sought to be achieved by the act.’ 333 So.2d at 139, citing Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). In addition the act must have application to a shifting class, ie., ‘there must exist a possibility of application to other counties tuhich may come within the classification fixed by the statute.’ Belcher, supra at 140; Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968); State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553 (1932). The act cannot be ‘so hedged about with limitations as to amount to a designation rather than a classification.’ Camp, supra at 639, 141 So. at 554; Brittain v. Weatherly, supra.

368 So.2d at 269 (emphasis added). While Belcher v. McKinney, 333 So.2d 136 (Ala.1976), considered legislative acts applicable to counties, the same requirements apply in considering acts applicable to cities. See City of Birmingham, v. Samford, 274 Ala. 367, 149 So.2d 271 (1963). Further, this Court stated in Phalen v. Birmingham Racing Commission, 481 So.2d 1108, 1114 (Ala.1985), that “[t]he concept was that population classifications, when established in an act, were permitted if the possibility existed for other subdivisions to grow into the classification.” (Emphasis added.)

While this Court has never expressly so stated, it has implied that a city or county could grow out of a population classification. The two cases relied on by the trial court provide good examples of this Court’s touching on this subject. In Smith v. Lancaster, 269 Ala. 579, 114 So.2d 568 (1959), this Court considered whether an act that established and applied a population classification to counties having a population between 80,000 and 94,000 was valid. Etowah County was the only county to which the act applied. In the course of determining that the act was invalid because it was a “local law” that had been passed without compliance with the appropriate publication requirements, the Court stated:

“According to the 1950 decennial census, Etowah County had a population of 93,892. So, if the 1960 census shows an increase in its population of as little as 109 it will not then be subject to the Act.”

269 Ala. at 583, 114 So.2d at 570 (emphasis added.) Further, in Robinson v. City of Montgomery, 485 So.2d 695 (Ala.1986), this Court observed:

“By 1962, Montgomery had outgrown the population classification of the original 1951 Trinity Act. The legislature, in order that the Act ‘continue in full force and effect,’ reenacted it, changing only the population classification.”

485 So.2d at 698 (emphasis added).

Based on the foregoing, we conclude that an act based on a population classification must have application to a “shifting” class in order to be a general law. See Hobbie, supra. While this Court has previously failed to explicitly so hold, we today determine and hold that if a class within a population classification is to be considered as “shifting,” a city or county within that class must be able to outgrow the classification just as a city or county can grow into such a classification. See Phalen, supra. Accordingly, the trial court’s summary judgment for the City is due to be affirmed.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . John McLain, an engineer employed in the City of Montgomery by Jeffcoat Engineers & Surveyors, was also a plaintiff in this case. However, he has not appealed the summary judgment.

      "1In Peddycoart v. City of Birmingham, 354 So.2d 808 (1978), the Alabama Supreme Court brought to a halt the Alabama Legislature's decades-long resort to such acts by mandating that population classifications no longer be used to avoid the definition of a local act. As stated in § 110 of the Alabama Constitution, a local act is one ‘which applies to any political subdivision or subdivisions of the state less than the whole.’

      “2The undisputed evidence is that the City of Montgomery’s population, according to the federal decennial census, was 106,525 in 1950, 134,393 in 1960, and 133,386 in 1970.

        “3See, e.g., Belcher v. McKinney, 333 So.2d 136 (Ala.1976), and Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968).’’


author: MONROE, Judge. CRAWLEY, Judge,

text:
    LAMAR ADVERTISING COMPANY, INC. v. CITY OF ORANGE BEACH BOARD OF ADJUSTMENT.
    2990707.
    Court of Civil Appeals of Alabama.
    Oct. 27, 2000.
    Rehearing Denied Dec. 22, 2000.
    David S. Conrad of Conrad & Barlar, Mobile, for appellant.
    John L. Lawler of Finkbohner, Lawler & Ray, L.L.C., Mobile, for appellee.
   MONROE, Judge.

In July 1999, Lamar Advertising Company, Inc. (“Lamar Advertising”), sued the City of Orange Beach Board of Adjustment (“the Board”), challenging the constitutionality of Zoning Ordinance No. 172, which Orange Beach had adopted in April 1991. Lamar Advertising alleged that the ordinance fails to adequately define significant terms; that it is unconstitutionally vague, overbroad, ambiguous, and arbitrary; and that the arbitrary and capricious enforcement of the ordinance deprives Lamar Advertising of its constitutionally protected property rights.

After conducting a trial, the court issued a judgment, denying Lamar Advertising’s request that it declare the ordinance unconstitutional. Lamar Advertising moved to alter, amend, or vacate the judgment. The trial court denied that motion, and Lamar Advertising appealed.

Lamar Advertising owns two outdoor advertising billboard structures (sign number 194 and sign number 195), located in Orange Beach. Both of these signs were erected before Orange Beach adopted the zoning ordinance in 1991. Under the ordinance, both signs were nonconforming signs but were “grandfathered in” under the zoning ordinance. The zoning ordinance stated, in part:

“15.03 DEFINITIONS
“Except as specifically defined herein, each word used in this article has its customary dictionary definition. For purposes of this article, certain words or terms used are herein defined as follows:
“Dilapidated Sign
“Any sign which is structurally unsound, has defective parts, or is in need of painting or maintenance.
“Nonconforming Sign
“A sign lawfully erected and legally existing at the time of the effective date of an article, but which does not conform to the new provisions of said code.
“15.0403 Nonconforming Signs
“a. Any sign erected or existing as of the effective date of this article, which has a valid permit from the City of Orange Beach, but which does not conform to the provisions of this article, or any sign pursuant to Section 15.0402(b), is hereby deemed a nonconforming sign. A nonconforming sign may be maintained only by painting or refinishing the surface of the sign face or sign structure so as to keep the appearance of the sign as it was when the prior permit was issued or the City permit tag affixed. Upon a determination by the administrator and notice to the permit-tee that a nonconforming sign has become dilapidated or structurally unsound, such sign shall be moved within twenty days unless an appeal of such determination has been previously filed with the Board of Adjustment. Any structural or other substantive maintenance to a nonconforming sign shall be deemed an abandonment of the nonconforming sign and shall render the prior permit void and shall result in the reclassification of such sign as an illegal sign pursuant to Section 15.0401.”

(Emphasis in original.)

In the fall of 1998, Hurricane Georges caused the sign face of these two billboards to blow away. A code enforcement officer for the Board sent Lamar Advertising two letters (one in October 1998 regarding sign number 195 and one in January 1999 regarding sign number 194), both of which stated:

“The above-mentioned billboard has been deemed structurally unsound — the sign failed under the winds of Hurricane Georges and exhibits serious pitting and deterioration. This billboard is classified as a nonconforming sign, and when/if it becomes dilapidated or structurally unsound, it must be removed.”

Lamar Advertising appealed the code enforcement officer’s decision to the Board, which denied the appeal and declined to grant a variance to Lamar Advertising. Lamar Advertising appealed the Board’s decision to the circuit court, pursuant to § 11-52-81, Ala.Code 1975. The circuit court denied the appeal. Lamar Advertising appealed to this court, and on April 7, 2000, we affirmed the circuit court’s judgment, without an opinion. See Lamar Adver. Co. v. City of Orange Beach Bd. of Adjustment (No. 2990143) 795 So.2d 850 (Ala.Civ.App.2000) (table).

In July 1999, Lamar Advertising filed the present action, contending that the ordinance was unconstitutional because, it says, the term “structurally unsound” is not defined, and although the term “dilapidated” is defined, it is defined, in part, by the term “structurally unsound.” Lamar Advertising argues that the ordinance fails to provide adequately stated standards, rules, definitions, guidelines, and criteria to ensure that the Board’s officials make consistent decisions to apply and/or enforce the ordinance and that the application of the ordinance is left to the arbitrary will of the Board’s officials.

Lamar Advertising relies upon City of Mobile v. Weinacker, 720 So.2d 953, 955 (Ala.Civ.App.1998), wherein this court agreed with the trial court that a City of Mobile sign ordinance was unconstitutional because it was “impermissibly vague and ambiguous” and because “it provide[d] the review boards unbridled discretion.” In City of Mobile, 720 So.2d at 954-55, this court stated:

“However ‘[i]f a statute or regulation “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at the meaning and differ as to its application,” it is void for vagueness.’ In addition, ‘ “[s]o far as [an ordinance] restricts the absolute dominion of the owner over its property, it should furnish a uniform rule of action, and its application cannot be left to the arbitrary will of the governing authorities.” ’ ”

(Citations omitted.)

The Board contends that a person of common intelligence would not have to guess at the meaning of Section 15.0403 of the ordinance. The Board says that it is clear that nonconforming signs may be maintained only by painting or refinishing the surface and that no other repairs are allowed. The Board contends that it is clear that when a sign becomes dilapidated or structurally unsound, it must be removed.

After conducting a trial, the court determined that “[t]he significant terms are adequately defined” and that “[a] person of common understanding and knowledge can clearly understand the provisions of the ordinance.” The trial court also determined that “[t]he ordinance is not vague, overbroad, ambiguous, or arbitrary.”

In Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415, 417 (Ala.1994), our supreme court stated:

“The judgment of the trial court based on ore tenus evidence in a nonjury case is presumed to be correct; however, that presumption has no application when the trial court is shown to have improperly applied the law to the facts.”

As previously noted, § 15.0403 states, in part:

“Upon a determination by the administrator and notice to the permittee that a nonconforming sign has become dilapidated or structurally unsound, such sign shall be moved within twenty days unless an appeal of such determination has been previously filed with the Board of Adjustment.”

(Emphasis added.) While it is clear that a sign must be moved when it becomes dilapidated or structurally unsound, what constitutes “dilapidated” or “structurally unsound”?

At the trial, that was precisely the question asked Roger Sweppenhiser, who was the Board’s sign administrator/code-enforcement officer in 1995. Sweppenhiser testified that after Hurricane Georges, he observed that the billboards owned by Lamar Advertising had been damaged. He further testified that he brought information and photographs back to the building official, who was his immediate supervisor, and that it was the building official who made the final determination whether a particular sign was structurally unsound or dilapidated. At trial, Sweppenhiser testified:

“Q. [The building official] makes that determination. Did you have any guidelines or criteria or rules or regulations that are set out in this sign ordinance that told you when a sign is structurally unsound or when it is dilapidated?
“A. Not other than the ordinance separates between maintenance as in painting and changing the sign face. That sets it up in one section. And, of course, structurally unsound or structural failure is basically a given in the building industry.
“Q. My question to you, Mr. Swep-penhiser: Are there any rules, regulations, criteria, or guidelines to go by in the ordinance which tell you how you determine whether a sign is structurally unsound or dilapidated?
“A. Yes.
“Q. And where are they?
“A. The ordinance refers to standard building code for wind loads and referring to the building code, that’s something that we use along with the sign ordinance.
“Q. Now, show me in [section 15.0403] or in that sign ordinance where it says structurally unsound that you follow the following guidelines to determine if something is structurally unsound or dilapidated.
“A. The definition of that is: Dilapidated sign: Any sign which is structurally unsound, has defective parts, or is need of painting or maintenance.
“A. The section under nonconforming signs, of course we already read that, it says that a nonconforming sign may be maintained only by painting or refinishing surfaces, sign face, or sign structure so as to keep the appearance of the sign as it was prior to the permit issued with the permit tag affixed. Upon determination by administrator and notice to the permittee that a nonconforming sign has become dilapidated or structurally unsound, such sign shall be moved within 20 days.
“A. 15.03 Definitions. ‘Except as specifically defined herein, each word used in this article has its customary dictionary definition. For the purposes of this article certain words or terms used are herein defined as follows.’ So we can take the terms structurally unsound or dilapidated, go to the dictionary and find out what they mean.
“Q. Let me withdraw and restate what my question is. My question is that you’ve stated to me all the criteria, guidelines, or regulations that are used — that are set out — excuse me — in the sign regulation to determine structurally unsound and dilapidated. Is that correct?
“A. Right.”

Additionally, Sweppenhiser admitted that the ordinance did not contain a definition for “structurally unsound” and that the term “dilapidated” is defined, in part, by “structurally unsound.”

As we stated in City of Mobile, 720 So.2d at 954-55: “ ‘ “[an ordinance] should furnish a uniform rule of action, and its application cannot be left to the arbitrary will of the governing authorities.” ’ ” In light of Sweppenhiser’s testimony, we cannot say that there was a uniform method of determining when a sign becomes structurally unsound or dilapidated. Thus, it would appear the Board’s officials had complete discretion in applying the ordinance.

We conclude that section 15.0403 of the ordinance is unconstitutional because the terms “dilapidated” and “structurally unsound” are impermissibly vague and the application of these terms allows unbridled discretion on the part of the Board’s officials. The judgment of the trial court is due to be reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ROBERTSON, P.J., and YATES, J., concur.

CRAWLEY and THOMPSON, JJ., dissent.

CRAWLEY, Judge,

dissenting.

I conclude that the zoning ordinance is constitutional. Our supreme court has upheld a zoning ordinance that prohibited businesses that are “offensive because of injurious and obnoxious noise, vibrations, smoke, gas, fumes, odors, dust, or other objectionable features, or would be hazardous to the community on account of danger of fire or explosion.” Walls v. City of Guntersville, 253 Ala. 480, 485, 45 So.2d 468, 471 (1950). In Walls, the business owner argued that the terms “offensive” and “hazardous” were unconstitutionally vague. The court rejected that argument, stating:

“We must be certain that the ordinance is so plainly and palpably inadequate and incomplete as to be convinced beyond reasonable doubt that it offends the constitution or we will not strike it down.
“And the modern tendency has been to be liberal in upholding ordinances of this character in order to facilitate their proper administration. The courts have ruled that considerable freedom to exercise discretion and judgment must of necessity be accorded to officials in charge under such an ordinance.
“... ‘[Ordinances need not always prescribe a specific rule of action and ... some situations require the placing of some discretion in municipal officials, as in cases where it is difficult or impracticable to lay down a definite or comprehensive rule for guidance, or where the discretion relates to the administration of a police regulation and is essential to the protection of the public morals, health, safety, welfare, etc.... ’ ”

253 Ala. at 485, 45 So.2d at 472.

I conclude that the terms “structurally unsound” and “dilapidated,” terms used in the zoning ordinance at issue here, are not so vague or uncertain as to make the ordinance unconstitutional. Therefore, I dissent.

THOMPSON, J., concurs.

      . In the prior appeal, we did not consider the constitutionality of the zoning ordinance because that question was not properly before this court. The prior appeal was pursuant to § 11-52-81, Ala.Code 1975.
      In City of Homewood v. Caffee, 400 So.2d 375, 377-78 (Ala.1981), our supreme court stated:
      “The practical effect of [§ 11-52-81] is to require the circuit court to sit as a ‘glorified board of adjustment.' Thus, if Caffee has valid claims not cognizable before the zoning board, he will likewise be precluded from litigating these claims to the circuit court on appeal pursuant to § 11-52-81.
      "... [A]n administrative body has no power to declare an ordinance unconstitutional. The powers of the board are specifically limited to those contained in Code 1975, § 11-52-80.”
      (Citations omitted.)