author: ROBERTSON, Presiding Judge.

text:
    DELANEY’S, INC., and Springdale Stores, Inc. v. STATE of Alabama.
    2971348.
    Court of Civil Appeals of Alabama.
    July 2, 1999.
    Rehearing Denied Aug. 27, 1999.

      J. Doyle Fuller and Susan G. Copeland, Montgomery, for appellant.
    Lawrence M. Wettermark of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile; and Florence A. Kessler, Mobile, for appellees State of Alabama; revenue commissioner of Mobile County; and Board of Equalization of Mobile County.
    Charles M. Crook of Balch & Bingham, Montgomery; and Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Forestry Ass’n.
   ROBERTSON, Presiding Judge.

Delaney’s, Inc., and Springdale Stores, Inc. (hereinafter “the Taxpayers”), appeal from a judgment of the Mobile County Circuit Court holding that 11 parcels of real property owned by the Taxpayers in the City of Mobile were not entitled to current-use tax status for tax years beginning on October 1, 1990. We reverse and remand.

This case has previously been before this court, and the Alabama Supreme Court has reviewed a mandamus petition arising out of the case. State v. Delaney’s, Inc., 668 So.2d 768 (Ala.Civ.App.1995) (“Delaney’s I”); Ex parte Roberts, 682 So.2d 44 (Ala.1996) (issuing writ of mandamus directing the trial court to vacate its order denying the state’s request for a jury trial). Much of the pertinent factual background and procedural history of the case was summarized in Delaney’s I:

“Alabama’s statutory scheme for the taxation of real property prescribes, as a general rule, that ad valorem taxes are based upon the fair and reasonable market value of the property. § 40-7-15, Ala.Code 1975. Beginning on October 1, 1978, the state legislature permitted an exception to the rule for property known as Class III property, which is defined as agricultural, forest, residential, or historic property. §§ 40-7-25.1 and 40-8-1, Ala.Code 1975. Upon application by the property owner, Class III property may be assessed for ad valorem tax purposes at its current use value rather than its fair market value. Id. The assessed value of property eligible for current use treatment is based upon the use being made of the property on October 1 of any taxable year. Id.
“The Taxpayers are related corporations that together own the 11 parcels of real property at issue in this case. The property is located in Mobile County near the intersection of Interstate Highway 65 and Airport Boulevard. At various times during the tax years 1985 through 1989, the Taxpayers filed applications for current use valuation on these 11 parcels of property with the Mobile County tax assessor, all of which were granted. According to the Taxpayers, the property was being used as timberland. On April 1, 1989, Freda Roberts assumed the duties of the newly created office of revenue commissioner of Mobile County. The revenue commissioner’s office undertook a review of the property in Mobile County that was being taxed on the basis of current use valuation. The parcels owned by the Taxpayers were included in the property reviewed. After requesting information from the Taxpayers and having the property inspected and appraised, the revenue commissioner determined that none of the 11 parcels of property at issue here was being used ‘for the growing and sale of timber and forest products.’ § 40 — 8—1 (b)(1), Ala.Code 1975. See also § 40-7-25.1. The revenue commissioner revoked the current use assessment, reclassified the property as Class II property, i.e., property not otherwise classified, and assessed ad valo-rem taxes based on fair market value. In tax year 1990, the total ad valorem tax bill for all 11 parcels, assessed as Class III property and based on current use value, was $147.29. In tax year 1991, the total ad valorem tax bill for all II parcels, assessed as Class II property and based on fair market value, was $134,278.01.
“The Taxpayers appealed the revised assessments to the Mobile County Board of Equalization, arguing that the property should have retained its Class III status so that it could continue to enjoy current use valuation. . The Board ruled that it did not have the authority to review the denial of'current use valuation to the Taxpayers. The Taxpayers then filed in the Mobile Circuit Court an action for a declaratory judgment against the Taxing Authorities [i.e., the State of Alabama, the revenue commissioner of Mobile County, and the Mobile County Board of Equalization]. The Taxpayers asked the court to declare that the Board had the authority to review the reclassification of their property or, in the alternative, to decide the dispute between the parties by declaring that the reclassification of their property was improper. While the declaratory judgment action was pending, the Board rendered 11 decisions on July 25, 1991, fixing the final value for assessment on each of the 11 parcels for the tax year 1991 on the basis of fair market value. Delaney’s and Springdale Stores each appealed the Board’s decisions to the Mobile Circuit Court.pursuant to § 40-3-25, Ala.Code 1975. The three actions were then consolidated![]
“The Taxpayers filed a motion for summary judgment, which was opposed by the Taxing Authorities. After discovery, extensive briefing, and oral argument, the trial court entered a summary judgment in favor of the Taxpayers. The trial court held that the tax assessor’s initial grant of the Taxpayers’ applications for current use valuation was ‘res judicata as to the question of whether the use to which this property is being put qualifies for current use status,’ and declared the ad valorem tax assessments for the tax year 1991 to be void and illegal. The trial court then directed the revenue commissioner to reissue assessments for the. 11 parcels, with corresponding tax bills, in which the property was assessed as Class III property based upon current use valuation. The Taxing Authorities appealed to the Su.preme Court of Alabama; however, that court transferred the case to this court on jurisdictional grounds.”

668 So.2d at 769-70 (footnotes omitted). This court reversed the, summary judgment and remanded the cause for further proceedings, concluding (1) that the doctrine of res judicata did not apply to the Taxing Authorities’ determinations, made during previous tax years, concerning whether the Taxpayers’ parcels were entitled to current use treatment; and (2) that a genuine issue of fact concerning whether the use- of ■ the Taxpayers’ parcels had changed after the 1989 tax year precluded the entry of a summary judgment in their favor. Delaney’s I, 668 So.2d at 774-75.

After the Supreme Court directed the trial court to vacate its order denying the State’s request for a jury trial, the case went to trial. The trial court denied the motions for a judgment as a matter of law (“JML”) filed by the State and by the Taxpayers. The jury returned a verdict in favor of the State on the issue whether the Taxpayers’ parcels were used for the growing and sale of timber and forest products, and the trial court entered a judgment directing the Taxpayers to pay additional taxes in the amount of $134,278.01. The Taxpayers’ subsequent motion for a new trial, as well as their renewed JML motion, were denied.

The principal contention made by the Taxpayers is that during the trial the State did not adduce substantial evidence indicating that the parcels were being used for purposes other than the growth and sale of timber and forest products. If their contention is correct, then the trial court erred in denying the Taxpayers’ pre-verdict and post-verdict JML motions. We review the trial court’s determination with respect to these motions under the following standard:

“ ‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now, pre-verdict and post-verdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)). In other words, we must determine whether the State produced substantial evidence in support of its claim that the parcels of property at issue were not being used for the growing and sale of forest products at those times relevant to the tax status of the parcels during each of the years in question (i.e., 1991-94 and 1996-97). In determining this issue, we must review the legal landscape surrounding the Legislature’s decision to tax different classes of property at different rates.

I. Current-use taxation

Except as otherwise provided by law, real property in Alabama is to be appraised at its fair and reasonable market value, taking into consideration all elements or factors bearing upon such value. Section 40-7-15, Ala.Code 1975. However, § 40-7-25.1, Ala.Code 1975, constitutes an exception to this general rule. It provides that ad-valorem-taxing authorities must base their appraisals of agricultural and forest property “on its current use on October 1 in any taxable year and not on its fair and reasonable market value.” Under that section, “current use value” is the value of eligible taxable property based upon the use being made of the property on October 1 of any taxable year, and “no consideration shall be taken of the prospective value such property might have if it were put to some other possible use.” Section 40-7-25.1, Ala.Code 1975 (emphasis added). This exception to fair-market-value taxation is termed “current-use” taxation.

' As the Alabama Supreme Court noted in Eagerton v. Williams, 433 So.2d 436 (Ala.1983), the concept of “current-use” taxation of real property was a product of, among other things, a federal-court judgment invalidating Alabama’s former ad-valorem-tax laws- on constitutional grounds. 433 So.2d at 438 (citing Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1971)). The Weissinger court ordered that all real property in Alabama be reappraised, and the Legislature enacted enabling legislation to carry out the mandate of the federal court. See §§ 40-7-60 et seq., Ala.Code 1975. The aftermath of the reappraisals ordered by the Weissinger court was summarized in Eagerton:

“State-wide, the reappraisals ordered by the Weissinger court took considerably longer to complete than the one year contemplated by the federal court. It became clear that many Alabama landowners’ property taxes' would increase significantly. In 1978, the Governor called the legislature into special session to avert the substantial increases in ad valorem taxes imminent under the new appraisals.
“Included in the governor’s tax relief package was a proposed amendment to Section 217 of the Constitution of Alabama of 1901. It passed the legislature, was ratified by the people, and is now Amendment No. 373 to the Constitution of 1901. In pertinent part, it reads:
“ ‘(a) On and after October 1, 1978, all taxable property within this state, not exempt by law, shall be divided into the following classes for the purposes of ad valorem taxation:
“ ‘Class I. All property of utilities used in the business of such utilities.
“‘Class II. All property not otherwise classified.
‘Class III. All agricultural, forest and single-family owner-occwpied residential property, and historic buildings and sites.
“ ‘Class IV. All private passenger automobiles and motor trucks of the type commonly known as “pickups” or “pickup trucks” owned and operated by an individual for personal or private use and not for hire, rent or compensation.
“ ‘(b) With respect to ad valorem taxes levied by the state, all taxable property shall be forever taxed at the same rate. ( On and after October 1, 1978, such property shall be assessed for ad valorem tax purposes according to the classes thereof as herein defined at the following ratios of assessed value to the fair and reasonable market value (except as otherwise provided in subsection (j) hereof) of such property:
“ ‘Class I. 30 per centum.
“ ‘Class II. 20 per centum.
‘Class III. 10 per centum.
‘Class IV. 15 per centum.
“‘(j) Notwithstanding any other provision of this section, on and after October 1, 1978, taxable property defined in subsection (a) hereof as Class III property shall, upon application by the oumer of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and ■ reasonable market value of such property. The legislature may enact laws uniformly applicable to the state and all counties, municipalities and other taxing authorities establishing criteria and procedures for the determination of the current use value of any eligible taxable property and procedures for qualifying such property for assess-merit at its current use value.... ’ (Emphasis added.)
“To implement this constitutional amendment, the legislature passed Act No. 135 in the above-mentioned special session. Act No. 135, set out in pertinent part below, provided for the appraisal of Class III property at current use value upon application by the property owner:
“ ‘Section 4. Current use value. For ad valorem tax years beginning on and after October 1, 1978, with respect to taxable property defined ... as Class III property and upon request by the owner of such property as hereinafter provided, the assessor shall base his appraisal of the value of such property on its current use on October 1 in any taxable year and not on its fair and reasonable market value. As used in this Act, “current use value” shall be deemed to be the value of eligible taxable property based on the use being made of that property on October 1 of any taxable year; provided, that no consideration shall be taken of the prospective value such property might have if it were put to some other possible use.’

433 So.2d at 439 (footnotes omitted). Act Number 135 of the Second Extraordinary Session of the 1978 Legislature, as amended, has since been codified at §§ 40-7-25.1, Ala.Code 1975. Eagerton, 433 So.2d at 438 n. 1.

Alabama’s adoption of a current-use-taxation statute followed the enactment of similar statutes in various other states that had begun to feel the effects of rapid urban and suburban growth during the 1950s and 1960s. Current-use-taxation statutes such as § 40-7-25.1 encourage the preservation of noncommercial real property by insuring against the conversion of such land to more intensive uses as a result of higher property-tax assessments. Rustici v. Town of Stonington, 174 Conn. 10, 13, 381 A.2d 532, 534 (1977). By enacting § 40-7-25.1, the legislature addressed what one court has labeled the “self-fulfilling prophecy” of fair-market-value taxation with respect to agricultural land unfortunate enough to be located near an expanding city:

“[T]axing land on the basis of its market value compels the owner to put the land to the use for which it is valued by the market. As the urban fringe approaches, the farmer’s [or timberland owner’s] land becomes valuable for residential development. His taxes are therefore increased, although his income is likely to shrink as more costly practices must be undertaken both to avoid interfering with his new neighbors and to protect his crops, livestock, and equipment from their intrusion. Often the farmer is forced to sell his land to subdivision developers, sometimes long before development is appropriate. As houses [or shopping malls] go up, so does the value of the remaining agricultural land, and the cycle begins anew.”

Sierra Club v. Hayward, 28 Cal.3d 840, 850, 623 P.2d 180, 184, 171 Cal.Rptr. 619, 623-24 (1981) (citations omitted). This purpose was specifically recognized by the United States Court of Appeals for the Eleventh Circuit as a rational basis for the disparities that may, from time to time, arise from current-use-taxation statutes:

“Alabama justifies its disparate tax treatment of half of the four types of Class III property [by] asserting] a special interest in preserving farm and timberland.
“The district court recognized that ‘Alabama is particularly concerned about the preservation of its agricultural and forest property and seeks through its property tax structure to preserve such property by providing additional preferential tax treatment for such property.’
... The state is free to enact measures that attempt to perpetuate certain desirable uses of its land in the face of economic pressures to convert the property to other more lucrative pursuits. Institution of a favorable tax system is one rationally related means by which to effect that end. A formula for the evaluation of farm and timber property that routinely holds assessment values below the normal selling price will certainly encourage the continued use of land for its present purpose. Therefore, in view of Alabama’s legitimate goal to preserve land for agriculture and forestry, we conclude that any disparity in the valuation of two of the types of Class III property is rationally related to the achievement of a permissible state purpose.”

Weissinger v. White, 733 F.2d 802, 806-07 (11th Cir.1984) (footnote omitted). With these principles in mind, we turn to the question whether the trial court correctly denied the Taxpayers’ JML motions.

II. Were the Taxpayers’ parcels “Class III” property?

As stated above, § 40-7-25.1 provides that Class III property is to be taxed based upon its current-use value and not its fair market value “upon request by the owner of such property.” Thus, in order to conclude that the 11 parcels of property at issue are, as the Taxpayers contend, subject to current-use taxation, we must first determine whether the parcels are in fact Class III property.

Under Alabama law, Class III property includes “[a]ll agricultural, forest and single-family owner-occupied residential property, and historic buildings and sites.” Ala. Const, of 1901, amend. 373, subsec. (a); see also § 40-8-l(a), Ala.Code 1975. “Forest property” is defined as real property used for “the growing and sale of timber and forest products” or any other “horticultural use.” Section 40-8-l(b)(l), Ala.Code 1975; see also § 40-7-25.1(b) (defining “forest” property as “real property used for the growing and sale of timber and forest products”).

The 11 parcels of property at issue are not occupied by buildings, although they are located close to a large interstate highway (thus giving rise to the commonly used name for the property, the “Interstate Block”). The Taxpayers presented evidence indicating that the Interstate Block was being, used for growing stands of pine, oak, and popcorn trees, averaging 20 to 25 years of age, that are not yet merchantable or ready to be harvested, and that nothing else was located on .the property other than a few billboard advertisements. In addition, portions of the Interstate Block had been planted with pine seedlings in 1983 and again in 1992. Moreover, the chief appraiser of the revenue commissioner’s office admitted that no commercial development had occurred on the property during the preceding 40 years, and the State’s forester testified that the Interstate Block was being managed in a manner consistent with good forest management practices.

In contrast, the State did not present substantial evidence indicating that in 1991, the first relevant tax year, the prop-érty was not being used for the growing and sale of timber products — the revenue commissioner herself admitted that the property looked “like a thicket” of trees and stated that the incidental use of the property to display billboards should not affect the tax classification of the property. Moreover, the 11 parcels had been granted current-use tax status for the years 1985 through 1989, and no evidence was presented at trial to indicate that the use of the property had changed during the succeeding years. Finally, while there was conflicting evidence concerning the ultimate marketability of the timber on the Interstate Block, the revenue commissioner admitted that nonproductive land would not necessarily be disqualified from current-use treatment. In light of these facts, the sole conclusion that can be drawn is that the property in question was Class III forest property in 1991 and was eligible for current-use taxation.

III. “Current use”

Because the property at issue was Class III property, the ad valorem tax on the land is to be calculated with reference to “its current use on October 1 in any taxable year and not ... its fair and reasonable market value.” This provision affords a window wherein the State may reevaluate a parcel’s tax status in light of a change in the use of the parcel that occurs on or before October 1 of each year. In other words, if ■ a Class III parcel has qualified for current-use taxation in one tax year (e.g., fiscal year 1999, which extends from October 1, 1998, to September 30, 1999), but is subsequently used, on or before October 1, 1999, in a manner inconsistent with its Class III status, the state may determine that the current use of the property is not within the parameters of Class III property and may tax the parcel according to the general rule, i.e., based upon its fair and reasonable market value. As we said in Delaney’s I, “Common sense dictates that tax assessors must have the ability to correct any errors that exist in the assessment process, including the ability to revoke current use valuation if the use of the property no longer conforms to the appropriate criteria for allowing current use valuation.” 668 So.2d at 774.

However, while we recognize that the State has the power to correct prospectively its determination during the immediately preceding year that the property is entitled to current-use treatment, the basis of that correction must, pursuant to § 40-7-25.1(a), arise from a nonconforming use of the property that occurs on or before October 1 of that year. This requirement follows logically from the Legislature’s mandate that when an application for current-use treatment has been granted by a tax assessor or a revenue commissioner, the owner of the property shall not be required to reapply for current-use treatment in subsequent years. See § 40-7-25.2(e), Ala.Code 1975. Thus, to warrant a change in the next year’s ad valo-rem taxation of a parcel that has been granted current-use treatment during a particular year, §§ 40-7-25.1(a) and 40-7-25.2(e), when read together, require that “the use being made of that property on October 1 of any taxable year” be different from the use for which current-use treatment has been granted with respect to the preceding year.

The evidence at trial was undisputed that the property has remained unoccupied and forested since 1991 and that no change in the use of the property has occurred since October 1, 1990. While the State adduced evidence indicating that, in previous tax years, the property had occasionally been used to store parked automobiles, that the property had been platted, and that streets, gutters, and utilities had been installed on the property, it was undisputed that these uses, to the extent that they were inconsistent with the Taxpayer’s Class III uses of the land, had all occurred before 1990. Thus, while the State undis-putably possessed the statutory power to redetermine the “current use” of the 11 parcels in the Interstate Block each October 1, there is no evidence that would permit the conclusion that the Taxpayers’ use of the property at issue actually had changed over the course of the pertinent tax years (i.e., 1991-94 and 1996-97). Therefore, the “current use” of the Interstate Block at all pertinent times was “for the growing and sale of timber and forest products,” and the revenue commissioner’s attempt to tax the parcels based upon their fair and reasonable market value was improper.

Conclusion

While we recognize that “current-use” taxation has its critics {e.g., Comment, Alabama’s Property Tax, 36 Ala. L.Rev. 147 (1984)), we are also committed to the proposition that “a taxpayer may resort to any legal method available to it in an effort to diminish the amount of its tax liability.” West Point Pepperell, Inc. v. State Dep’t of Revenue, 624 So.2d 579, 582 (Ala.Civ.App.1992), cert. quashed, 624 So.2d 582 (Ala.1993). Unless and until the statutes governing taxation based upon the current use of Class III property are altered by the elected legislature of this state so as to require fair-market-value treatment of such property, both the taxing authorities and the courts of this state are bound to apply them as they are written. Based on the facts in this case, imposing fair-market-value taxation upon the parcels at issue is a prime example of forced commercialization by taxation, the very evil that § 40-7-25.1 was designed to prevent.

The trial court erred in denying a judgment as a matter of law in favor of the Taxpayers. Its judgment is therefore reversed, and on remand the trial court is instructed to enter a judgment directing the revenue commissioner to afford the Interstate Block current-use treatment with respect to the ad valorem taxes due for the years 1991-94 and 1996-97, and to recalculate those taxes pursuant to subsections (c) and (d) of § 40-7-25.1, Ala.Code 1975.

REVERSED . AND REMANDED WITH INSTRUCTIONS.

YATES, MONROE, CRAWLEY, and THOMPSON, JJ„ concur.

      . In addition to the appeals concerning the 1991 tax year, the Taxpayers filed appeals contesting the Taxing Authorities' subsequent denial of current-use tax status for the 11 parcels in 1992, 1993, 1994, 1996, and 1997.

      . The Taxpayers did not file applications for current-use treatment of the parcels for 1995, although their 1994 applications were denied; thus, the parcels do not qualify for current-use treatment for that year. See §§ 40-7-25.1(a) and 40-7-25.2, Ala.Code 1975.

      . See also § 40-7-25.1(c), Ala.Code 1975 (outlining schedule of soil groups to be used in calculating productivity ratings of forest property, which include a soil group for "nonproductive” forest property).


source: Caselaw Access Project

author:
HOUSTON, Justice.
     SEE, Justice JOHNSTONE, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (Re DELANEY’S, INC., and Springdale Stores, Inc. v. STATE of Alabama).
    1982145.
    Supreme Court of Alabama.
    Sept. 22, 2000.
    Rehearing Denied Nov. 22, 2000.

      Lawrence M. Wettermark of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile; and Florence A. Kessler, Mobile, for petitioner.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, Montgomery, for respondents.
    Bill Pryor, atty. gen.; Susan E. Kennedy, chief counsel, Department of Revenue, and asst. atty. gen.; and Duncan R. Crow, asst, counsel, Department of Revenue, and asst. atty. gen., for amicus curiae Department of Revenue.
    Joseph Kettler, Montgomery, for amicus curiae Alabama League of Municipalities.
    Frank G. Taylor and Kathryn W. Petersen of Sintz, Campbell, Duke & Taylor, Mobile, for amicus curiae Board of School Commissioners of Mobile County.
    M. Kathryn Knight of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for ami-ci curiae Baldwin County Commission and the Revenue Commissioner of Baldwin County.
    Mary E. Pons, Montgomery, for amicus curiae Association of County Commissions of Alabama.
    Edwin K. Livingston, Montgomery, for amicus curiae Association of Alabama Tax Administrators.
    Gregory B. Stein of Stein & Brewster, Mobile; and Sam Heldman of Gardner, Middlebrooks, Fleming, Gibbons & Kitt-rell, P.C., Birmingham, for amicus curiae Alabama Education Association.
    Robert A. Huffaker and Rachel Sanders-Coehran of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for am-ici curiae Alabama Forestry Association, Alabama Farmers Federation, Business Council of Alabama, and other trade associations and property owners.
    Martha Ann Miller of Robison & Belser, P.A., Montgomery, for amicus curiae Alabama Association of School Boards.
   HOUSTON, Justice.

This case comes to this Court not as a stranger. See State v. Delaney’s, Inc., 668 So.2d 768 (Ala.Civ.App.1995), and Ex parte Roberts, 682 So.2d 44 (Ala.1996). It involves sections (a) and (j) of Amendment No. 373 of the Constitution of Alabama of 1901 (“the Amendment”), and Ala.Code 1975, § 40-8-1 et seq. More specifically, it involves whether the owner of certain real property is entitled to have it assessed for ad valorem taxes at the value of the property at its current use and not at its fair and reasonable market value.

In 1953, E.E. Delaney, now deceased, acquired 357 acres for development in Mobile County. Over the years, Mr. Delaney developed much of this property into Yes-ter Oaks Townhouses, Yester Oaks Shopping Center, Springdale Plaza, Springdale Mall, and Windsor Apartments. A right-of-way for Interstate Highway 65 was acquired across this property intersecting Grant Street, now Airport Boulevard. The remainder of this 357 acres is now owned by Delaney’s Inc., and Springdale Stores, Inc. (“Delaney’s”), with the principals of these corporations being the children of Mr. Delaney: William Delaney, James Delaney, and Darlene Delaney Frost. Before 1984, Delaney’s platted the property and constructed, on part of the property, paved roads with concrete curbing, an underground storm-drainage system, a sewer system, water lines, utility lines, and fire hydrants. The timber was not harvested from the land before the roads were cut. Delaney’s contends that before October 1, 1985, it changed the use of this property from property held for development to forest property.

In the tax years 1986 through 1990, Delaney’s filed applications with the Mobile County tax assessor to have the property assessed for the “current-use” valuation as forest property. The application was granted. In 1986, a parcel of this property in the southwest quadrant of the intersection of 1-65 and Airport Boulevard came out of the forest classification and was developed for construction of a Hampton Inn motel. In the tax year 1987, a portion of the northwest quadrant of that intersection was removed from the forest classification, to be developed into a parking lot for a neighboring McRae’s department store. In the tax year 1988, a portion of the southwest quadrant of the intersection was removed from the forest classification to be used for the expansion of Windsor Apartments. As of the tax year 1991 (beginning October 1, 1990), the 357 acres had been reduced to approximately 100 acres located in the four quadrants of the intersection of 1-65 and Airport Boulevard (that area will be referred to as the “Interstate Block”).

On October 1, 1990 (which began the tax year 1991), the Mobile County revenue commissioner (hereinafter referred to as the “Commissioner”), on behalf of the State of Alabama and Mobile County, revoked the current-use treatment for the Interstate Block. Delaney’s appealed the Commissioner’s ruling to the Mobile County Board of Equalization (the “Board”), which denied the appeal.

Delaney’s then filed a declaratory-judgment action in the Mobile County Circuit Court and filed appeals from the ruling of the Board. The trial court consolidated these actions for trial. Delaney’s moved for a summary judgment; the court granted the motion and entered a summary judgment for Delaney’s.

The State appealed to this Court, and this Court transferred the appeal to the Court of Civil Appeals, on jurisdictional grounds. The Court of Civil Appeals reversed the summary judgment and remanded the cause “for further proceedings to determine whether the revenue commissioner’s decision to revoke the Taxpayers’ current use valuation was correct.” State v. Delaney’s, Inc., 668 So.2d 768, 775 (Ala.Civ.App.1995) (“Delaney I”). This Court denied certiorari review.

On remand, Delaney’s filed a motion to strike the State’s jury demand, and the trial court granted that motion. The State petitioned this Court for a writ of mandamus; this Court issued the writ, holding that the trial court had erred by striking the State’s jury demand. Ex parte Roberts, 682 So.2d 44 (Ala.1996).

Delaney’s moved for a judgment as a matter of law, at the conclusion of all of the evidence. The court denied the motion and propounded the following special interrogatory to the jury: “For tax year 1991, was the property at issue [“Interstate Block”] used for the growing and sale of timber and forest products?” Delaney’s objected to this interrogatory, as follows:

“I would object to it in that form on the basis that the law says they must make that decision as of October 1st of each year. The interrogatory should more correctly state for the tax year— should properly say was the property at issue used for growing and sale of timber and forest products on October 1st, 1990 paren [sic] for the 1991 tax year.”

(R. 760.) The court overruled the objection.

The jury answered the interrogatory “no” and found in favor of the State and against Delaney’s. After the trial court had denied its motions for a new trial and for a judgment as a matter of law, Delaney’s appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court, holding that the trial court had erred in denying Delaney’s a judgment as a matter of law. It remanded the cause for the trial court “to enter a judgment directing the ... commissioner to afford the Interstate Block current-use treatment with respect to the ad valorem taxes due for the years 1991-94 and 1996-97, and to recalculate those taxes pursuant to subsections (c) and (d) of § 40-7-25.1, Ala.Code 1975.” Delaney’s, Inc. v. State, 834 So.2d 97, 105 (Ala.Civ.App.1999). We granted the State’s petition for certiorari review, and we heard oral arguments on June 28, 2000. We reverse and remand.

It is undisputed that the Interstate Block was acquired and held for commercial development for some time. This was not property that became surrounded by urban growth while being used as a farm or as a forest. It was part of a parcel that had been purchased in anticipation of urban growth. Had the use of the Interstate Block changed from commercial use, awaiting a purchaser or a commercial venture, to forest property, on October 1, 1990, as Delaney’s contends? This was a factual question for the jury to resolve. The Court of Civil Appeals held that the State did not present substantial evidence indicating that in 1991, the first relevant tax year, the property was not being used for the growing and sale of timber. We disagree. We reverse and remand for the Court of Civil Appeals to address the remaining issues, including the issue whether the -trial court erred in presenting the special interrogatory to the jury.

If on remand the Court of Civil Appeals again reverses the judgment of the trial court and remands the case for a new trial, we note that the right to have “forest property” assessed for ad valorem taxes on the current-use basis is a constitutional right. Amendment No. 373(b) and (j) of the Constitution of Alabama of 1901. Subsection (b) in pertinent part provides:

“[A]ll ... [forest] property shall be assessed for ad valorem tax purposes [at the ratio of 10 per centum] of assessed value to the fair and reasonable market value (except as otherwise provided in subsection (j) hereof) of such property. ...”

Subsection (j) provides in pertinent part:

“Notwithstanding any other provision of [Amendment No. 373], taxable property defined [as all forest property] shall, upon application by the owner of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and reasonable market value of such property.”

It is undisputed that Delaney’s applied for current-use valuation. “Forest” is not defined in Amendment No. 373. It is defined as “[a] dense growth of trees, together with other plants, covering a large area,” in The American Heritage Dictionary of the English Language 514 (1969); and as “[a] tract of land covered with trees and one usually of considerable extent.” Black’s Law Dictionary 649 (6th ed.1990).

Subsection (j) of Amendment No. 373 provides:

“The legislature may enact laws ... establishing criteria and procedures for the determination of the current use val■ue of any eligible taxable property and procedures for qualifying such property for assessment at its current use value.”

(Emphasis added.) Does this empower the Legislature to limit the constitutional designation of “forest property”? That issue was not before the trial court or the Court of Civil Appeals. Section 35 of the Constitution restricts the legislative, executive, and judicial departments of government, as follows:

“[T]he sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”

(Emphasis added.)

“[T]axable property defined [as forest property] shall, upon application by the owner of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and reasonable market value of such property.”

Amendment 373(j). (Emphasis added.)

For the purposes of defining the terms, the Legislature combined the terms “agricultural” and “forest,” and defined “agricultural and forest property” as:

“All real property used for raising, harvesting, and selling crops or for the feeding, breeding, management, raising, sale of, or the production of livestock, including beef cattle, sheep, swine, horses, ponies, mules, poultry, fur bearing animals, honeybees, and fish, or for dairying and the sale of dairy products, or for the growing and sale of timber and forest products, or any other agricultur al or horticultural use or animal husbandry and any combination thereof.”

(Emphasis added.)

In Delaney I, Retired Justice Beatty wrote for a unanimous Court of Civil Appeals:

“Common sense dictates that tax assessors [revenue commissioners] must have the ability to correct any errors that exist in the assessment process, including the ability to revoke current use valuation if the use of the property no longer conforms to the appropriate criteria for allowing current use valuation. Nonconforming use could result from a change in the use of the property by the owner after the initial application for current use valuation has been granted. Nonconforming use could also, in some cases, result from an erroneous or improper grant of current use valuation in the first instance. This Court will not sanction an interpretation of the law that allows a taxpayer to continue to enjoy a tax benefit at the expense of the other taxpayers of the state [1] if the taxpayer no longer qualifies for the benefit or [2] if the benefit was erroneously or improperly granted.”

668 So.2d at 774-75.

We agree with Retired Justice Beatty’s reasoning. Therefore, on remand, the State can present evidence to show a change in the use of the subject property (but not to show a change in the use of the property surrounding the subject property) and/or to show the use of the property before and at the time the benefit of current-use assessment was granted, to show that the benefit was erroneously or improperly granted (but not to show a change in the use of the property surrounding the subject property). If the subject property is being used on tax day (October 1 of every year) as agricultural property or forest property (and this can be proved by proof of the prior use of such property), it makes no difference whether the property is surrounded by other agricultural or forest property or by a megalopolis. The owner, if it properly applies for current-use valuation, is constitutionally entitled to have its property assessed at a value determined by its present use as agricultural or forest property.

For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed and the case is remanded with instructions.

REVERSED AND REMANDED.

HOOPER, C.J., and MADDOX, COOK, and ENGLAND, JJ., concur.

SEE, BROWN, and JOHNSTONE, JJ., dissent.

LYONS, J., recuses himself.

SEE, Justice

(dissenting).

The narrow question before this Court is whether the State presented substantial evidence indicating that for tax year 1991 the taxpayers, Delaney’s, Inc., and Spring-dale Stores, Inc., changed the use of the subject property from forest use to commercial use. The jury found that the property, for tax year 1991 and for the subsequent tax years at issue, 1992 through 1994, 1996, and 1997, was not being used for the growing and sale of timber and forest products. The Court of Civil Appeals concluded that the State had failed to present substantial evidence to support its position, and, thus, that the trial court erred in denying the taxpayers’ motion for a judgment as a matter of law. To establish that the property was not being used as Class III forest property, the State presented evidence indicating that the taxpayers had not sold any timber from the property in the past several decades; that most of the trees growing on the property are not marketable and had not been planted, but grew wild; that much of the property is open fields incapable of supporting timber growth; and that several parts of the property have been leased in past years to nearby automobile dealers for the storage of cars; and that the property, in past years, had been platted, with streets, gutters, and utilities installed on the property. In fact, most of this evidence predates the 1985-1989 classification of the property as forest property. No actual sales of timber from the property had taken place in the decades before the 1985 classification of the property as forest property; most of the trees were wild before 1985, and, in fact, there were plantings in 1983 and 1992; there was no evidence indicating that the property had become less capable of supporting timber between 1989 and 1991 than it was at the time of its 1985-89 classification as forest property; cars had been stored on the property before 1989; and, the platting and installation of streets, gutters, and utilities took place before 1990. Although I believe it is a close question whether the State presented substantial evidence, I conclude that the State did not meet its burden of presenting substantial evidence indicating that for tax year 1991 the taxpayers changed the use of the property from forest use to commercial use so that they no longer were entitled to current-use taxation.

JOHNSTONE, Justice

(dissenting).

Because I agree with the opinion of the Court of Civil Appeals in this case, I respectfully dissent from the decision of this Court to reverse the decision of that court.

BROWN, J., concurs.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on July 18, 2000.

      . In Black's Law Dictionary 660 (7th ed.1999), only the historical definition is given: “A tract of land, not necessarily wooded, reserved to the king or a grantee, for hunting deer and other game.”


author: CRAWLEY, Judge. THOMPSON, Judge,

text:
    J.P. v. STATE DEPARTMENT OF HUMAN RESOURCES. N.F. v. State Department of Human Resources.
    2000232 and 2000233.
    Court of Civil Appeals of Alabama.
    June 22, 2001.

      James C. Alison, Huntsville, for appellant J.P.
    Reta A. McKannan, Huntsville, for appellant N.F.
    J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   CRAWLEY, Judge.

In May 2000, the Madison County Department of Human Resources (“DHR”) filed a petition to terminate the parental rights of N.F. (the “mother”) and W.R.F. Ill (the “father”) as to their children W.R.F. IV and S.F. (the “children”). J.P., the maternal grandmother, filed a motion to intervene, alleging that placing the children in her custody is a viable alternative to termination of the mother’s parental rights. Following an ore tenus trial, the juvenile court ordered the termination of both parents’ parental rights and found that placing the children in the custody of the maternal grandmother is not a viable alternative to terminating the parents’ paternal rights. The mother and the maternal grandmother each appeal. The father does not appeal.

The termination of parental rights is a drastic measure, and the courts gravely consider such action. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). A natural parent’s prima facie right to the custody of his or her child is outweighed only by clear and convincing evidence that termination of parental rights is in the best interests of the child. L.N. v. State Dep’t of Human Res., 619 So.2d 928, 929 (Ala.Civ.App.1993). The juvenile court considers the parent’s physical, financial, and mental abilities to care for the child in order to determine the child’s best interests. J.L.B. v. State Dep’t of Human Res., 608 So.2d 1367, 1368 (Ala.Civ.App.1992). The juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights. Beasley, at 954.

We address the mother’s appeal first. The mother argues that the juvenile court erred by not finding the maternal grandmother to be a viable alternative to the termination of her parental rights. She does not appeal the juvenile court’s finding that the children are dependent. DHR contends that custody with the maternal grandmother is not a viable alternative, for two reasons: (1) the maternal grandmother had refused to take custody of the children in the past; and (2) the maternal grandmother was not a good mother to her own children.

DHR presented evidence indicating that the maternal grandmother had had custody of the children after they were removed from the mother’s home a few years ago. The maternal grandmother then became engaged and her fiancé did not want the responsibility of rearing the children. The maternal grandmother asked friends — a married couple — if they would keep the children. The couple agreed, the maternal grandmother transferred the children to them, and then the maternal grandmother informed DHR of the change in the children’s custody. DHR licensed that couple as foster parents. The couple divorced and relinquished custody of the children. DHR again asked the maternal grandmother if she would take the children, and she declined. The maternal grandmother testified that at that time her husband was terminally ill and that she was not able to care for him and the children at the same time. Shortly before her husband’s death, she filed the petition to intervene in the termination-of-parental-rights action instituted against the mother, requesting custody of the children. The maternal grandmother’s husband died about one week before the trial.

The maternal grandmother testified that she could now devote sufficient time to the children because she no longer had to care for her husband. She testified that she lives in a four-bedroom house where each child would have a bedroom. She testified that the school the children would attend is a good school and provides after-school care. The maternal grandmother has a successful hair-styling job at a local department store and makes about $35,000 a year. She testified that she can adjust her hours around the children’s school schedule and does not anticipate that they would have to stay in after-school care for more than about one hour each day. She testified that she is currently deciding which health-insurance arrangement would give the children the most coverage at the best cost. She testified that her husband had mortgage insurance that is paying the balance owed on the house. She affirmatively responded to questions about whether she could comply with orders of the court that might restrict the mother’s access to the children. DHR presented evidence indicating that the maternal grandmother had not had custody of her two children, including the mother, for much of their minority, that both of her children have substance-abuse problems, and that neither of her children has adjusted to the responsibilities of being an adult.

DHR presented evidence indicating that when the mother was a teenager (more than 10 years ago), she ran away from her father’s home. The mother’s father and the maternal grandmother were divorced, and the father had custody. Kansas authorities eventually placed the mother in a foster home. While the mother was in this foster home, the maternal grandmother decided to move from Kansas. The Kansas authorities informed the maternal grandmother that if she left Kansas she would have difficulties in being considered as custodian of the mother once the mother left her foster home. The record indicates that the maternal grandmother moved from Kansas anyway. The juvenile court, in its judgment, and DHR, in its brief, place much emphasis on these events in determining that custody with the maternal grandmother is not a viable alternative to terminating the mother’s parental rights.

Both of DHR’s concerns regarding the maternal grandmother’s ability to be a custodian and an alternative to termination of the mother’s parental rights address the past conditions and past ability of the maternal grandmother to be a custodian. As stated above, the evidence regarding the maternal grandmother’s parenting involves events that occurred more than 10 years in the past. Moreover, the evidence, as shown above, demonstrates the maternal grandmother’s present ability to be a custodian of the children. This court reversed a judgment terminating parental rights where a grandmother requested custody of the children as an alternative to termination of parental rights. V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998). In that case, DHR opposed the grandmother’s custody because the grandmother had refused custody of the children a few years earlier and because the grandmother had not taken the initiative to complete the requisite paperwork to become a custodian. This court stated:

“All of DHR’s objections to the grandmother as a relative resource were based on past history, however, and there was no evidence that she had been considered in light of her present circumstances, her present willingness to be a resource for the children, and the present improvement in the mother’s condition. DHR must present ‘evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.’ Bowman [v. State Dep’t of Human Resources, 534 So.2d 304, 306 (Ala.Civ.App.1988) ].”

710 So.2d at 921.

We conclude that the juvenile court erred by not considering custody with the maternal grandmother as a viable alternative. As stated above, the maternal grandmother testified that she is presently able to care for the children in her home, and she presented evidence indicating that she has sufficient resources to care for the children. Therefore, we reverse the juvenile court’s judgment terminating the mother’s parental rights. We instruct the juvenile court on remand to consider the maternal grandmother’s present ability to care for the children in evaluating whether her having custody is a viable alternative to terminating the mother’s parental rights.

The maternal grandmother argues two issues on appeal. First, she argues that the juvenile court erred by not awarding her custody of the children. This issue has been disposed of in our resolution of the mother’s appeal. The maternal grandmother also argues that an award of custody to the maternal great-grandparents is a viable alternative to termination of the mother’s parental rights. We conclude that this is an argument the mother should have made and that the maternal grandmother is not the proper party to make this argument.

The judgment terminating the mother’s parental rights is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., concurs.

MURDOCK, J., concurs in the result.

THOMPSON and PITTMAN, JJ., dissent.

THOMPSON, Judge,

dissenting.

I conclude that the evidence clearly supports the trial court’s determination that there were no viable alternatives to terminating the parents’ parental rights and that such a termination would be in the best interests of the children. Therefore, I must dissent.

The children involved in this case were ages 8 and 5 at the time of the termination hearing; at that time, they had been out of their mother’s custody and in foster care for 33 months. The trial court found that the maternal grandmother had kept the children for only the first two months after they were removed from the mother’s custody; that when the maternal grandmother’s then fiancé objected to her having the children, she, without DHR’s permission, gave the children to another couple; and that when that couple divorced the maternal grandmother refused to take the children.

DHR presented evidence indicating that, more than one and a half years after she had given up custody of the children, one of the DHR social workers had attempted to perform a home evaluation on the maternal grandmother’s home. However, before that evaluation could be conducted, the maternal grandmother withdrew her request for custody of the children, stating that her husband was opposed to her obtaining custody of them.

The record also indicates that the mother was out of the maternal grandmother’s custody and in foster care from the time she was 12 years old until she was 18 years old. The maternal grandmother testified that she moved to this state while the mother remained in foster care in Kansas because the mother was almost 18 and could join her in Alabama in less than one year. The maternal grandmother also admitted that she did not have custody of her son during much of his life; she disavowed any responsibility for her son’s drug addiction and other problems because she had not reared him.

The maternal grandmother filed her petition to intervene only after her husband died and only days before the termination hearing. She refused to answer the question whether she would have filed the petition to intervene if her husband had not died.

In V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), the grandmother had refused to take her grandchildren when they were first placed in foster care in 1993. In 1995, the grandmother expressed an interest in obtaining custody of the children; the grandmother again contacted the social worker about obtaining custody of the children after DHR had filed a petition to terminate the mother’s parental rights. DHR did not investigate the grandmother’s home because the grandmother had previously refused to take the children. This court reversed, stating that the grandmother had not been “considered in light of her present circumstances [or her] present willingness to be a resource for the children.” V.M. v. State Dep’t of Human Res., 710 So.2d at 921.

In this case, the maternal grandmother had given up the children after caring for them for only two months; had later refused to take them; and had scheduled a home evaluation but then informed the social worker she could not take the children. In the interim, the children remained in foster care for almost three years. During DHR’s investigation and its attempts to reunite the children with a parent, the maternal grandmother refused to take custody of the children. I interpret the “present circumstances” and “present willingness” factors stated in V.M. to refer to the “circumstances” and “willingness” present, existing, and exhibited at the time the DHR social workers are conducting their investigation, offering services, and seeking placement of the children as an alternative to terminating a parent’s parental rights. I cannot conclude that the holding of V.M. v. State Department of Human Resources refers to “circumstances” and “willingness” of the maternal grandmother that arose only at, or mere days before, the termination hearing, especially considering that she had, until the date she filed her petition, refused to take the children.

“In V.M. v. State Dep’t of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), this court reversed a judgment terminating a mother’s parental rights because, it held, the trial court’s conclusion that there was no viable alternative to the termination was plainly and palpably wrong. In V.M., DHR had rejected a grandmother as a relative resource because it had negative, four-year-old information about the grandmother and because ‘the grandmother had shown a lack of initiative in contacting DHR regarding the necessary paperwork.’ 710 So.2d at 921. This court stated:
“ ‘All of DHR’s objections to the grandmother as a relative resource were based on past history ... and there was no evidence that she had been considered in light of her present circumstances [and] her present willingness to be a resource for the children.... DHR must present “evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.” In light of the evidence that the grandmother’s present circumstances had not been investigated, the trial court’s decision to terminate the mother’s parental rights based upon the lack of viable alternatives was plainly and palpably wrong.’
“V.M., 710 So.2d at 921 (emphasis added) (citation omitted). The statements we made in V.M. apply with even greater force in this case. DHR made virtually no effort to investigate the father’s current living conditions, had virtually no information about the father’s current employment circumstances, and made the determination that the father was unreliable because he had neglected to telephone DHR about a home study. As we implied in V.M., and as we now explicitly hold, DHR — not the prospective custodian — has the burden of initiating investigations, and it is DHR’s burden to prove the unsuitability of one who seeks to be considered as the custodian of a dependent child.”

D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 590-91 (Ala.Civ.App.1999) (emphasis added).

In this case, DHR attempted to investigate the maternal grandmother’s home, but she informed the social worker that she would not take the children. She expressed no interest in obtaining custody of the children until the eleventh hour before the termination hearing. The main, opinion concludes that because the maternal grandmother, at the hearing, professed an interest in the children, she should be considered a viable alternative to the termination of the parents’ parental rights. The trial court did not believe the grandmother was sincere in explaining her refusal to take the children, or, apparently, in testifying that she was, as of that date, in a position to, and was willing to, take care of the children.

Further, as the trial court noted in its judgment, at no time has this maternal grandmother chosen the best interests of the children over her own needs or desires. The trial court also found:

“[The maternal grandmother] is seemingly unaware of the need that children have for the security found in the same house setting with the same parental figure with consistent routines established. She has failed to provide that security for her own children, and she has exhibited a history of failing to provide that security for her grandchildren.”

(Emphasis added.) The maternal grandmother filed a motion to intervene only days before the termination hearing. Other than her testimony at that hearing, there is no evidence in the record to indicate that the maternal grandmother’s conduct up until a few days before the termination hearing was not a reliable indicator of her present willingness to take the children, or her probable future actions with regard to the children. DHR presented ample evidence to establish the grandmother’s consistent unwillingness, and, therefore, her unsuitability, to be considered a custodian of the children. See D.S.S. v. Clay County Dep’t of Human Res., supra. I conclude that that evidence supports the trial court’s judgment. This court reviews a trial court’s judgment terminating parental rights under an abuse-of-discretion standard. A.R.E. v. E.S.W., 702 So.2d 138, 139-40 (Ala.Civ.App.1997). I cannot agree that the trial court’s findings and judgment constituted an abuse of discretion. I would affirm the judgment of the trial court.

PITTMAN, J., concurs.


author: BROWN, Justice.

text:
    Ex parte STATE DEPARTMENT OF HUMAN RESOURCES. (In re J.P. v. State Department of Human Resources and N.F. v. State Department of Human Resources).
    1001795.
    Supreme Court of Alabama.
    May 3, 2002.

      J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for petitioner.
    James C. Alison, Huntsville, for respondent J.P.
    Reta A. McKannan, Huntsville, for respondent N.F.
   BROWN, Justice.

The Madison Juvenile Court entered an order terminating the parental rights of N.F., the mother, after finding that the children’s maternal grandmother was not a viable alternative to termination. We granted certiorari review to determine whether the Court of Civil Appeals erred in reversing that order. We reverse the judgment of the Court of Civil Appeals and render a judgment affirming the judgment of the trial court.

Facts and Procedural History

In August 1996, the Madison County Department of Human Resources (“DHR”) received a report that two minor children, W.R.F. IV and S.F., were being inadequately supervised. After it received an additional report in December 1997, DHR reached an agreement with the mother and placed the children with J.P. (“the maternal grandmother”). In February 1998, the maternal grandmother notified DHR that she could no longer care for the children because she was getting married and her husband-to-be did not want the children living with them. Without DHR’s consent, J.P. physically placed the children in the home of a married couple she knew.

The children continued to live with the married couple until May 2000, when the couple began having marital problems and requested that the children be moved. At that time, DHR asked the maternal grandmother if she would again take custody of the children. At the termination hearing, the maternal grandmother testified that she declined custody at that time because her husband was terminally ill and all of her attention was focused on him. However, the social worker testified that the maternal grandmother told her that she was declining custody because her husband was very much opposed to the children’s being placed with them. Although DHR then evaluated the maternal great-grandparents as a suitable alternative to terminating the mother’s parental rights, DHR determined that the great-grandparents were elderly, that they had a limited support system available to them, and that they had not had any contact with the children or the mother for a number of years.

In May 2000, DHR petitioned to terminate the parental rights of the mother and W.R.F. Ill (the father). Shortly before the scheduled termination hearing, the maternal grandmother petitioned to intervene in the action, claiming that she could now accept custody of the children because her husband had died.

At the termination hearing, the maternal grandmother testified that she could now devote sufficient time to the children because she no longer had to care for her husband. The maternal grandmother also testified that she lived in a four-bedroom home that would be paid off by mortgage insurance she had had on her husband’s life and that each child would have his own bedroom. If the children were allowed to live with her, the maternal grandmother stated, they would be able to attend a good school that is located less than two miles from her home. Because the maternal grandmother works, the children would have to attend after-school care. She testified that she works as a hairdresser and that her schedule is flexible, so the children would have to be in after-school care for only approximately one hour each day. Finally, the maternal grandmother testified that she would have the means to support the children because she earns approximately $35,000 per year and she will be receiving $175,000 as the beneficiary of a life insurance policy on her deceased husband’s life.

Following the hearing, the trial court terminated the mother’s parental rights, stating:

“The court heard testimony from several maternal relatives seeking to obtain custody of the children. In that regard, the maternal grandmother ... was allowed to intervene. [The maternal grandmother] had accepted physical custody of the children when they were removed from the mother’s care in late 1998.[] Without the consent of [DHR], she physically placed the children in the home of an acquaintance.... [DHR] eventually licensed this home for foster care, and allowed the children to remain. The grandmother explained to the Department that she was about to get married and could not care for the children any longer.
“Unfortunately, in March of 1998,[] the [married couple] divorced and returned custody of the children to [DHR]. Once again, the maternal grandmother was consulted about placement. Despite abundant evidence to the contrary, the maternal grandmother claimed that she did not take custody of the children at this point because she had decided that her daughter might not work as hard to regain custody if she, a relative, took them back into her custody. This interpretation flies in the face of the facts and the best interest of the children. Clearly, the maternal grandmother was trying to twist her failure to take custody into some gesture that might seem positive to this court, instead of negative. The court is not persuaded by this argument.
“Instead, the maternal grandmother appears to have failed her own children and her grandchildren. Her decisions are consistently made for her own selfish interest. She left the state of Kansas and left her daughter in foster care over a matter that appeared to involve her daughter staying out later than she was allowed. The grandmother admitted that she did not raise her own children and thus their drug problems and emotional problems were not her fault. She admitted that [the mother] was either in [the] custody of her father or in foster care for the majority of her life. As well articulated in the opinion of the guardian to the court, dated September 14, 2000,
“ ‘... She must have understood that moving to another state would greatly hinder any effort of hers to regain her daughter’s custody. I think it reasonable to conclude that she [the maternal grandmother] had other priorities in her life at that time.’
“The court agrees with the guardian and states [that] the evidence shows that [the maternal grandmother] has always had other priorities. [The maternal grandmother] has demonstrated a lack of appreciation for the negatives that would occur to the children in moving them from location to location. She is seemingly unaware of the need that children have for the security found in the same house setting with the same parental figure with [a] consistent routine established. She failed to provide that security for her own children and she has exhibited a history of failing to provide that security for her grandchildren. The court finds by clear and convincing evidence that it is not in the best interest for these children to be placed in the custody of this grandmother.
“These children deserve to have their best interest served in making a determination as to their long-term placement or right to permanency. The relatives have been considered by the court and based on the matters as set out above and all the evidence presented, the court finds by clear and convincing evidence that the placement of the children with any of the relatives would not serve their long-term best interest.”

The'mother and maternal grandmother appealed to the Court of Civil Appeals; that court reversed the trial court’s judgment terminating the mother’s parental rights and remanded the case to the trial court “to consider the maternal grandmother’s present ability to care for the children in evaluating whether her having custody is a viable alternative to terminating the mother’s parental rights.” J.P. v. State Dep’t of Human Res., 834 So.2d 111, 114-15 (Ala.Civ.App.2001).

DHR petitioned this Court for a writ of certiorari, arguing that the Court of Civil Appeals “substituted [its] opinion for that of the trial court regarding the weight and credibility of the maternal grandmother’s testimony about her current situation, as well as her ability to provide these children a permanent, and, therefore, viable placement alternative.”

Analysis

Because this case concerns an issue of child custody, this Court presumes that the trial court’s findings are correct, and we will not reverse its judgment absent a clear abuse of discretion or plain error. See Ex parte Alabama Dep’t of Human Res., 682 So.2d 459, 460 (Ala.1996).

“This presumption [of correctness] is especially applicable where the evidence is conflicting. Ex parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as tó be plainly and palpably wrong. See Ex parte Walters, 580 So.2d 1352 (Ala.1991).”

Ex parte Alabama Dep’t of Human Res., 682 So.2d at 460.

In its opinion, the Court of Civil Appeals stated:

“Both of DHR’s concerns regarding the maternal grandmother’s ability to be a custodian and an alternative to termination of the mother’s parental rights address the past conditions and past ability of the maternal grandmother to be a custodian. As stated above, the evidence regarding the maternal grandmother’s parenting involves events that occurred more than 10 years in the past. Moreover, the evidence, as shown above, demonstrates the maternal grandmother’s present ability to be a custodian of the children.”

J.P. v. State Dep’t of Human Res., 834 So.2d at 114. Based on its opinion in V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), the Court of Civil Appeals reversed the trial court’s order terminating the mother’s parental rights.

In V.M., the Court of Civil Appeals determined that a mother, who had previously experienced bouts of drug and alcohol addiction, had met almost all of the goals DHR had set for her, and it reversed a trial court’s order terminating her parental rights. In addition, the Court of Civil Appeals reversed the trial court’s finding that the maternal grandmother was not a viable alternative to termination of the mother’s parental rights. The Court of Civil Appeals stated:

“The record clearly indicated that the maternal grandmother was interested in being considered as a relative resource and that she had expressed that interest to DHR beginning in 1995. Despite that potential resource, however, DHR had not performed a home evaluation or otherwise investigated the grandmother. DHR’s dismissal of the grandmother appears to be based, in large part, on her refusal to take the children in late 1993. The DHR representative also testified that the grandmother had shown a lack of initiative in contacting DHR regarding the necessary paperwork, that she would be working during much of the time that the children were home from school, and that a placement of an older grandchild had not been successful. All of DHR’s objections to the grandmother as a relative resource were based on past history, however, and there was no evidence that she had been considered in light of her present circumstances, her present willingness to be a resource for the children, and the present improvement in the mother’s condition. DHR must present ‘evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.’ Bowman [v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988)](emphasis added).”

710 So.2d at 921.

Although the main opinion of the Court of Civil Appeals in the instant case quotes the above-quoted language from V.M., Judge Thompson, joined by Judge Pittman, dissented, noting:

“In this case, DHR attempted to investigate the maternal grandmother’s home, but she informed the social worker that she would not take the children. She expressed no interest in obtaining custody of the children until the eleventh hour before the termination hearing. ... The trial court did not believe the grandmother was sincere in explaining her refusal to take the children, or, apparently, in testifying that she was, as of that date, in a position to, and was willing to, take care of the children.
“... [A]t no time has this maternal grandmother chosen the best interests of the children over her own needs or desires. ...
“... [T]here is no evidence in the record to indicate that the maternal grandmother’s conduct up until a few days before the termination hearing was not a reliable indicator of her present willingness to take the children, or her probable future actions with regard to the children. DHR presented ample evidence to establish the grandmother’s consistent unwillingness, and, therefore, her unsuitability, to be considered a custodian of the children.”

834 So.2d at 117 (Thompson, J., dissenting). Having reviewed the record, we agree with Judge Thompson’s conclusion that the facts here are distinguishable from those presented to the Court of Civil Appeals in V.M. Most notably, the maternal grandmother’s continued rejection of the children until the death of her husband was a strong indicator of whether she had a present desire to care for these children as late as 10 days before the termination hearing.

The trial court’s judgment in this case was based on ore tenus evidence. Moreover, the trial court’s determination as to the maternal grandmother’s ability to care for the children was based, at least in part, upon the maternal grandmother’s often conflicting testimony. Thus, the Court of Civil Appeals was required to apply a presumption of correctness to the trial court’s finding that placement of the children with the maternal grandmother was not a suitable alternative to termination. Applying that same presumption to the record now before us, we cannot say that the trial court’s conclusion that the maternal grandmother provided no suitable alternative to termination constituted an abuse of discretion or that it was plainly and palpably wrong. Therefore, we reverse the decision of the Court of Civil Appeals and render a judgment affirming the judgment of the trial court.

REVERSED AND JUDGMENT RENDERED.

HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., dissent.

      . The record reflects that the children were placed with the maternal grandmother in December 1997.

      . Although the trial court states that the married couple began having problems in March 1998, the record reflects that the children remained with the married couple until they started experiencing marital difficulties in May 2000.


author: MURDOCK, Judge.

text:
    Billy BAILEY v. R.E. GARRISON TRUCKING CO.
    2000916.
    Court of Civil Appeals of Alabama.
    May 3, 2002.

      J. Barton Warren, Huntsville, for appellant.
    Finis E. St.John IV of StJohn & St. John, L.L.C., Cullman, for appellee.
   MURDOCK, Judge.

In April 1998, Billy Bailey (“the employee”), a former employee of R.E. Garrison Trucking Co. (“the employer”), filed a two-count complaint seeking workers’ compensation benefits from the employer and alleging a retaliatory-discharge claim against the employer for damages under § 25-5-11.1, Ala.Code 1975. The parties settled the workers’ compensation claim and the trial court approved the settlement in June 1999. The retaliatory-discharge claim remained pending.

In February 2001, the employer filed a summary-judgment motion directed to the employee’s retaliatory-discharge claim. After a hearing, the trial court entered a summary judgment in favor of the employer. The employee appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

The issue before this court is whether the trial court erred in entering the summary judgment. We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P. The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992).

In Alabama, an employee may lawfully be discharged from his employment, with or without cause or justification, for a good reason, a bad reason, or no reason at all. Culbreth v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992). Section 25-5-11.1, Ala.Code 1975, states an exception to this rule:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits.... ”

In regard to actions brought under § 25-5-11.1, the Alabama Supreme Court has held:

“[A]n employee may establish a prima facie case of retaliatory discharge by proving that he was ‘terminated’ because he sought to recover worker’s compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the [employee] must prove that the reason [given by the employer] was not true but a pretext for an otherwise impermissible termination.”

Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988).

On appeal, the employee contends that he presented substantial evidence indicating that he was terminated in response to his filing a worker’s compensation claim. The employee contends that the employer fabricated a series of poor work-performance reports in order to justify its termination of his employment in retaliation for his filing a claim based on his workplace injury.

A review of the record reveals that the employee worked as a preventive-maintenance mechanic. On January 7, 1998, while conducting maintenance on a truck, the employee slipped and fell, injuring his left hip and his back. The employee testified that he was taken to a hospital emergency room, but was released, and that he then returned to work. On the following day, he reported to work and performed his regular job duties. Approximately one week following the accident, the employee saw a company doctor, who placed the employee on lifting and bending restrictions, ordered physical therapy, and referred the employee to an orthopedic physician. On February 19, 1998, the company doctor released the employee to “do his regular work.” On February 26, 1998, his employment was terminated.

Tim Klein, the vice president of maintenance for the employer, testified in his deposition that the employee was warned orally on three occasions about his poor performance on service jobs. These warnings were for improperly inflated tires, as well as inadequate transmission fluid and oil levels. Klein testified that on the day before the employee was fired, Klein had to “come behind” the employee and “fill in” a truck that had low fluid levels. Klein testified that failing to properly maintain the trucks placed both the truck drivers and the general public at risk for an accident.

The employee denied that he had failed to make specific mechanical checks. Furthermore, the employee stated that he never received any warnings regarding his work performance other than the one he received on the day he was terminated. The employee also testified that Klein ignored his work restrictions and ordered him to continue to work in the service-bay area.

Eddie Stancil, the employee’s supervisor, testified that he witnessed a conversation between Klein and the employee regarding specific mechanical checks. Stancil testified that both he and Klein had noticed that the truck Klein inspected on February 25, 1998, had not been properly checked, noting that “you [had] little oil seepings around plugs and when you ... pull the plug out you can tell it,” and that “[t]he ratchet ha[d] been put in the plug and taken out and put back in.” Stancil further testified that the employee had been given three opportunities to admit to these omissions, but that he had refused.

We note that this court has continuously held that “Alabama’s [workers’] compensation laws should be liberally construed in favor of the employee in order to advance and effectuate their beneficent purposes.” Culbreth v. Woodham Plumbing Co., 599 So.2d at 1123 (citing Hilyard Drilling Co. v. Janes, 462 So.2d 942 (Ala.Civ.App.1985)). The employee denied his supervisors’ allegations of poor work performance. He testified that he was not aware of a single mistake he had made during his employment. He also stated that he never received any prior warnings concerning his work performance and that he continued to work in the service-bay area even though he had been placed on bending and lifting restrictions. Given the disputed testimony regarding the events surrounding the employee’s dismissal, a jury could believe the employee’s testimony over the employer’s.

Therefore, after reviewing the evidence in a light most favorable to the employee as the nonmoving party, we conclude that a genuine issue of material fact exists regarding whether the reason given by the employer for the employee’s termination was a pretext for an impermissible retaliatory discharge.

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

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: CRAWLEY, Judge.

text:
    STATE of Alabama ex rel. Ansidina FINKLEA v. Sammie AARON.
    2001192.
    Court of Civil Appeals of Alabama.
    May 3, 2002.

      J. Coleman Campbell, Lois Brasfield, and Jennifer M. Bush, asst, attys. gen., Department of Human Resources, for appellant.
    William M. Pompey of Pompey & Pompey, P.C., Camden, for appellee.
   CRAWLEY, Judge.

The State of Alabama, on behalf of Ansi-dina Finklea, filed with the Wilcox County Juvenile Court a complaint for paternity and child support, alleging that Sammie Aaron was the father of Finklea’s minor child. The juvenile court held that Aaron was the child’s father and ordered him to pay $375 per month for child support. The State appealed the juvenile court’s order to the Wilcox County Circuit Court (the “trial court”) insofar as it pertained to the amount of the child-support award. A hearing for final determination was scheduled for March 26, 2001.

On .February 26, 2001, the trial court conducted a hearing at which the trial court stated that it would issue a temporary order requiring Aaron to be obligated for the following child support until it issued its final judgment following the March 26 hearing:

1. $375 per month from April 14, 1999, until September 30,1999.
2. $250 per month following September 30,1999.

The trial court issued a written order on February 26, 2001, but did not include any language indicating that the order was temporary. As a result of the written order, the State filed a posttrial motion on March 26, 2001; that same day the trial court conducted the scheduled hearing and took evidence. Before the trial court issued a final judgment, the State filed its notice of appeal.

Aaron has filed with this court a motion to dismiss the appeal, arguing that the trial court did not issue a final judgment from which an appeal could be taken. We agree, and we grant Aaron’s motion to dismiss the appeal. The transcripts from the hearings clearly show that the trial court intended the February 26 order to be a temporary order, effective only until a final order was issued following the March 26 hearing. “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974). The fact that the trial court took evidence at the March 26 hearing in order to issue a final judgment unquestionably supports the trial court’s previous indications that the February 26 order was only temporary.

APPEAL DISMISSED.

YATES, P.J., and THOMPSON and PITTMAN, JJ., concur.