author: SEE, Justice. WOODALL, Justice

text:
    William D. STIFF v. ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD et al.
    1010169.
    Supreme Court of Alabama.
    May 2, 2003.
    Rehearing Denied Oct. 3, 2003.

      Jim L. DeBardelaben of DeBardelaben, Norwood & Westry, P.C., Montgomery, for appellant.
    Randy A. Dempsey, F. Wade Steed, and Jonathan D. Green of Dempsey, Steed & Stewart, P.C., Birmingham, for appellees.

      . Justice Houston did not attend oral argument; however, on September 18, 2002, he watched the videotape of the September 10, 2002, oral argument.

   SEE, Justice.

The State of Alabama levies excise taxes on wine under the Alabama Table Wine Act and formerly under the Alabama Native Farm Winery Act. William Stiff appeals from the Montgomery Circuit Court’s judgment holding that he lacks standing to challenge the Alabama excise taxes on wine under the Commerce Clause of the Constitution of the United States and from the circuit court’s summary judgment in favor of the Alabama Alcoholic Beverage Control Board (“ABC Board”) on his claim that the ABC Board violated the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, when it failed to establish a procedure for the markup of table wine. We reverse and remand.

In 1979, the Legislature passed the “Native Farm Winery Act,” § 28-6-1 et seq., Ala.Code 1975. The Native Farm Winery Act levied an excise tax of $.05 per gallon on all native farm wine sold in Alabama or dispensed as free samples at a native farm winery. § 28 — 6—4(b), Ala.Code 1975. In 1980, the Legislature passed the “Alabama Table Wine Act,” § 28-7-1 et seq., Ala. Code 1975. The Table Wine Act levied an excise tax of $.45 per liter on all table wine “sold to [a] wholesale licensee or [the ABC] board, to be collected from the purchaser by the board or by a licensed retailer.” § 28-7-16, Ala.Code 1975. The Table Wine Act exempted native farm wine from the table wine excise tax. § 28-7-24, Ala.Code 1975.

William Stiff is an Alabama domiciliary and a consumer of table wine. On September 27, 1999, Stiff sued the ABC Board alleging that the ABC Board had violated the Commerce Clause of the Constitution of the United States, Art. I, § 8, cl. 3, by imposing and collecting an excise tax of $.45 per liter on all table wine imported into Alabama, but imposing and collecting an excise tax of only $.05 per gallon on native farm wine produced and sold in Alabama.

Stiff also alleged that the ABC Board had violated § 41-22-5, Ala.Code 1975, a part of the Alabama Administrative Procedure Act, by failing to establish a procedure by which the price of table wine is marked up and by failing to publish such a procedure in the Alabama Administrative Monthly so that “interested persons” would have an opportunity to submit to the ABC Board comments or proposals about the procedure.

The ABC Board moved for a summary judgment; it argued that. Stiff lacked standing to bring the Commerce Clause challenge and that the ABC Board had not violated the Alabama Administrative Procedure Act. The trial court ordered mediation, which was unsuccessful, and the ABC Board again moved for a summary judgment. On September 14, 2001, the trial court entered a judgment in favor of the ABC Board; it held (1) that Stiff does not have standing to challenge the excise-tax scheme under the Commerce Clause, and (2) that the ABC Board did not violate the Alabama Administrative Procedure Act when it failed to establish and publish notice of its markup procedure for table wine. Stiff appeals, arguing that the trial court erred on both grounds when it entered the summary judgment.

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmov-ant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).’ ”

Gonzalez, LLC v. DiVincenti, 844 So.2d 1196, 1200-01 (Ala.2002)(quoting Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992)). “For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Standing

Stiff argues that he has standing to challenge the manner in which Alabama levied its excise taxes on wine under the Table Wine Act and the Native Farm Winery Act. To establish that he has standing to bring a challenge under the Commerce Clause, Stiff must demonstrate the existence of: (1) an actual concrete and particularized “injury in fact” — “an invasion of a legally protected interest”; (2) a “causal connection between the injury and the conduct complained of’; and (3) a likelihood that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Stiff also must demonstrate that “he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” Warth, 422 U.S. at 518, 95 S.Ct. 2197. At an irreducible minimum, Stiff must “ ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct’ ” of the ABC Board. Bender v. Williamsport Area School Dist., 475 U.S. 534, 542, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)(quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)).

Stiff argues that he has standing to challenge the manner in which Alabama levied its tax on table wine because, he says, he was compelled under the tax scheme to pay an unconstitutional tax. The trial court found that Stiff lacks standing because the excise tax on table wine “is assessed on and collected from the wholesaler,” not from Stiff, who is a retail customer. The trial court concluded that Stiff does “not seek to do business across state lines, nor [does he or could he] seek to directly purchase the goods subject to the tax.” The ABC Board argues on appeal that Stiff is asserting “generalized grievances,” that Stiff is not entitled to assert claims seeking lower wine prices, and that he is not asserting claims that would protect his own rights. (ABC Board’s brief at 4.) The ABC Board also argues that Stiff lacks standing because, it argues, he is not a representative of the wine industry and has not demonstrated that he is entitled to protect the interests of the wine industry.

Consumers who suffer an injury from “regulation forbidden under the Commerce Clause satisfy the standing requirements of Article III.” General Motors Corp. v. Tracy, 519 U.S. 278, 286, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997). In Tracy, General Motors argued that Ohio’s scheme for taxing natural gas violated the Commerce Clause because Ohio taxed gas purchased directly by consumers from out-of-state providers at a higher rate than it taxed gas purchased by consumers from in-state local gas distribution companies. The Supreme Court of Ohio held that General Motors was “without standing to raise this Commerce Clause challenge because the company is not one of the sellers said to suffer discrimination under the challenged tax laws.” Tracy, 519 U.S. at 286, 117 S.Ct. 811. The Supreme Court of the United States reversed the judgment of the Ohio Supreme Court and held that General Motors, as a customer burdened by the tax, had standing to bring a Commerce Clause challenge:

“But cognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates, and customers of that class may also be injured, as in this case where the customer is liable for payment of the tax and as a result presumably pays more for the gas it gets from out-of-state producers and marketers.”

Tracy, 519 U.S. at 286,117 S.Ct. 811. The Supreme Court in Tracy analogized the case to Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), and stated that General Motors had standing for the same reason that in-state liquor wholesalers in Bacchus had standing to bring a Commerce Clause challenge to a Hawaii tax scheme exempting liquor produced in Hawaii from liquor taxes.

“Although the wholesalers were not among the class of out-of-state liquor producers allegedly burdened by Hawaii’s law, we reasoned that the wholesalers suffered economic injury both because they were directly liable for the tax and because the tax raised the price of their imported goods relative to the exempted in-state beverages.”

Tracy, 519 U.S. at 287, 117 S.Ct. 811.

Stiff argues that as a consumer of imported table wine he stands in the same position as did General Motors in Tracy and the in-state liquor wholesalers in Bacchus. We agree.

In the case before us, the trial court found that Stiff could not stand in the same position as did General Motors in Tracy, because whereas General Motors had purchased natural gas directly from out-of-state suppliers, under Alabama’s three-tiered system of alcoholic-beverage distribution Stiff is forbidden from purchasing wine directly from out-of-state producers. Wine wholesalers purchase wine from out-of-state suppliers and distribute the wine to retailers. Consumers like Stiff may purchase wine only from licensed retail outlets, not directly from wholesalers or from out-of-state producers. See § 28-7-4, Ala.Code 1975.

The fact that Stiff may hot purchase wine directly from out-of-state producers is, however, immaterial, because the trial court erroneously concluded that “the [discriminatory] tax is assessed on and collected from the wholesaler.” The trial court ignored the plain language of the excise-tax statute, which requires consumers of table wine — such as Stiff — to pay the excise tax. At the time the table wine excise tax at issue here was levied, § 28-7-16(a) and (b), Ala.Code 1975, read, in pertinent part:

“(a) Levy. — There is hereby levied in addition to the license taxes provided for by this chapter and municipal and county license taxes and in addition to any marked-up price made by the board on wine sold by the board a privilege or excise tax measured by and graduated in accordance with the volume of sales of table wine and shall be an amount equal to $.45 per liter of table wine sold to the wholesale licensee or board, to be collected from the purchaser by the board or by a licensed retailer.
“(b) Collection. — The tax • levied by subsection (a) of this section shall be added to the sales price of all table wine sold and shall be collected from the purchasers. The tax shall be collected in the first instance from the wholesaler where table wine is sold or handled by wholesale licensees, and by the board from whomever makes sales when table wine is sold by the board. It shall be unlawful for any person who is required to pay the tax in the first instance to fail or refuse to add to the sales price and collect from purchaser the required amount of tax, it being the intent and purpose of this provision that the tax levied is in fact a levy on the consumer. The person who pays the tax in the first instance is acting as an agent of the state for the collection and payment of the tax and as such may not collect a tax on table wine for any other level of government.”

(Emphasis added.) The statute requires retailers to collect the tax from the ultimate purchasers; therefore, the retailer acts as an instrumentality for collecting the tax from the consumer and remitting it to the State. The statute requires wholesalers and retailers to add the tax to the price of table wine, thereby expressly forbidding wholesalers and retailers from paying the tax themselves. The plain language of the statute indicates that the table wine excise tax is levied on the consumer.

In Tracy, General Motors had standing because it paid the tax: “customers of that class [sellers said to suffer discrimination under the challenged tax laws] may also be injured, as in this case, where the customer is liable for payment of the tax ....” 519 U.S. at 286, 117 S.Ct. 811. Similarly, the Supreme Court stated that the wholesalers in Bacchus had standing “because they were directly liable for the tax.” Tracy, 519 U.S. at 286,117 S.Ct. 811. In this case, we hold that Stiff has standing because the Table Wine Act requires consumers of table wine, not wholesalers or retailers, to pay the tax. We hold that Stiff has standing to challenge the table wine excise tax.

The Table Wine Markup Procedure

Stiff also argues that the ABC Board has failed to publish its markup procedure for table wine in the Alabama Administrative Monthly, as required by § 41-22-5, AIa.Code 1975, a part of the Alabama Administrative Procedure Act. Stiff argues that the ABC Board’s failure to publish a “rule” for its markup procedure has denied him and other “interested persons” the opportunity to submit their proposals to the ABC Board. See § 41-22-5, Ala.Code 1975.

Section 41-22-3(9), Ala.Code 1975, in pertinent part, defines a “rule” as a “regulation” that “implements ... or prescribes law or policy.” Although we are not suggesting that a particular price is a “rule,” the procedure by which the price of table wine is marked up and set is a rule as defined by § 41-22-3(9), Ala.Code 1975, because it implements or prescribes a pricing policy.

The ABC Board argues that it is empowered to regulate the sale of alcohol. See Ex parte Alabama Alcoholic Beverage Control Bd., 683 So.2d 952, 954; § 28-3-43(a)(1), Ala.Code 1975. The trial court found that “[ujnder Alabama law, the ABC Board has the intrinsic power to buy, manufacture, sell and price alcoholic beverages.” We agree. The ABC Board has broad power to regulate the sale and manufacture of alcoholic beverages and to price such beverages for sale in its stores at whatever price it may set. See Bartlett v. Alabama Alcoholic Beverage Control Bd., 654 So.2d 1139 (Ala.1993)(“ ‘regulation of liquor traffic is subject to the intrinsic police power of the state, a broad and plenary power’ ”)(quoting Ott v. Everett, 420 So.2d 258, 260 (Ala.1982)).

Stiff also agrees that the ABC Board has these powers, but he argues that the ABC Board must nonetheless comply with the Alabama Administrative Procedure Act when it implements a pricing policy. In Brunson Construction & Environmental Services, Inc. v. City of Prichard, 664 So.2d 885, 893 (Ala.1995), this Court stated:

“The provisions of the Administrative Procedure Act impose upon administrative agencies the duty — preliminary to the ‘adoption, amendment, or repeal,’ § 41-22-5(a)(l), of ‘rules of practice,’ § 41-22-4(a)(2) — to publish the ‘terms or substance’ of such rules, § 41-22-5(a)(1), and, among other things, to ‘[a]f-ford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.’ Section 41-22-5(a)(2). Noncompliance with these provisions voids every ‘agency rule, order, or decision’ taken in any case in which the provisions are applicable. Section 41-22-4(b). Section 41-22-3(9) defines a ‘rule’ as ‘[e]ach agency regulation, standard or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency.’ ”

(Emphasis omitted.)

We cannot find any evidence in the record indicating that the ABC Board has published its procedure for marking up the price of table wine in the Alabama Administrative Monthly, nor does the record in-dieate that interested persons were allowed to submit comments or proposals regarding the markup procedures for table wine. Although the trial court correctly found that it has no authority to “strike down the markup on table wine and provide refunds based on an alleged failure to comply with the Administrative Procedure Act,” the trial court erred by not requiring the ABC Board to comply with the provisions of the Administrative Procedure Act. The ABC Board has near plenary authority to price wine, but, because it is not exempt from compliance with the Administrative Procedure Act, the ABC Board may not sell wine to wholesale or retail customers without complying with the procedures set forth in that Act. Therefore, we reverse the trial court’s order entering a summary judgment in favor of the ABC Board on Stiffs Alabama Administrative Procedure Act claim, and remand this cause for such proceedings as are necessary for the trial court to order the ABC Board, consistent with this opinion, to comply with the Administrative Procedure Act.

REVERSED AND REMANDED WITH DIRECTIONS.

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

WOODALL and STUART, JJ., concur in part and dissent in part.

WOODALL, Justice

(concurring in part and dissenting in part).

I concur fully in the majority opinion insofar as the Court holds that Stiff has standing to challenge the table wine excise tax. However, I respectfully dissent from the holding that the markup procedure by which the ABC Board sets the price of table wine is a “rule” as defined by § 41-22-3(9), Ala.Code 1975.

Section 41-22-3(9), in part, defines a “rule” as an “agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy.” (Emphasis added.) Because the markup procedure in question implements or prescribes the pricing policy of only the ABC Board, I do not believe that it is “of general applicability,” as that term is used in § 41-22-3(9). Instead, I believe that the markup procedure falls within one or more of the exceptions to the statutory definition of “rule.” See § 41-22-3(9)a. (“[statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public”), and § 41-22-3(9)c.(“intra-agency memoranda, directives, manuals, or other communications which do not substantially affect the legal rights of, or procedures available to, the public or any segment thereof’).

The cases cited by the majority in note 12 do not support its holding. Indeed, both cases involve regulations generally applicable to entities other than the regulatory commission that promulgated the regulations.

STUART, J., concurs.

      . If Stiff ultimately succeeds in securing a judicial determination that the excise tax violates the Commerce Clause of the United States Constitution, that determination will directly reduce Stiff's tax burden. Thus, although Stiff, as a taxpayer, objects to the excise tax on table wine, this case is not a so-called "taxpayer-standing” case.
      "[S]o-calIed taxpayer suits ... really are challenges to the spending power, not to the taxing power. Such taxpayers do not really object to the taxes levied but to the uses to which they apply. As Justice Harlan correctly explained in a dissent in another case, such a suit by a taxpayer challenging an expenditure:
      " 'cannot result in an adjudication either of the plaintiff’s tax liability or of the propriety of any particular level of taxation. The relief available consists entirely of the vindication of rights held in common by all citizens.'
      "Nor can it be said that such a taxpayer, if successful on the merits in declaring an expenditure unconstitutional, would have his taxation burden reduced, even minutely-”
      John E. Nowak & Ronald D. Rotunda, Constitutional Law § 2.12(f)(1), at 72 (4th ed. 1991)(quoting Flast v. Cohen, 392 U.S. 83, 118, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)(Harlan, J., dissenting)).

      .In count 5 of his complaint Stiff asked for: (1) injunctive relief; (2) certification of a class; (3) a declaration stating that the ABC Board had no authority to mark up table wine; and (4) monetary damages.

      . The act defined a "native farm winery” as a winery where the annual wine production did not exceed 100,000 gallons and where 75% of the berries, fruit, produce, or honey used to make the wine was grown or produced in Alabama by the winery. § 28-6-1(1), Ala.Code 1975. It defined "native farm wine” as wine produced on a native farm winery. § 28-6-1(2), Ala.Code 1975. The act stated: "The excise tax provided for in this section shall be in lieu of all other taxes imposed.” § 28-6-4(b), Ala.Code 1975. The Native Farm Winery Act was repealed by the Legislature effective September 30, 2001. Act No. 2001-1114, Ala. Acts 2001 (4th Spec.Sess.).

      . Section 28-7-16, Ala.Code 1975, was repealed and replaced with a new § 28-7-16 by Act No. 2001-1114, Ala. Acts 2001. Act No. 2001-1114 likewise imposed an excise tax of $.45 per liter on all table wine.

      . The last sentence in § 28-7-24, Ala.Code 1975, states that "nothing herein contained shall be construed to repeal or as repealing Chapter 6 of this title [the Native Farm Winery Act].” We note that in 2001 the Native Farm Winery Act was repealed. See note 3.

        . The United States Court of Appeals for the Third Circuit refers to this requirement as "prudential standing” and states the following test for assessing whether a plaintiff satisfies such standing:
      "[Prudential limits] require that (1) a litigant assert his [or her] own legal interests rather than those of third parties, (2) courts refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances, and (3) a litigant demonstrate that her interests are arguably within the zone of interests intended to be protected by the statute, rule or constitutional provision on which the claim is based."

        Oxford Assocs. v. Waste Sys. Auth. of Eastern Montgomery County, 271 F.3d 140, 145-46 (3d Cir.2001) (alterations and emphasis in original). See also Warth, 422 U.S. at 499-500, 95 S.Ct. 2197 (stating that the assertion of a "generalized grievance” does not confer standing and that a plaintiff must assert his own interests so that the court will not be called on to decide abstract questions of wide public significance but only actual cases or controversies).

      . The actual constitutionality of the tax is not at issue in this appeal, only whether Stiff has standing to challenge it. Stiff relies on Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), as support for the proposition that a tax scheme that favors locally produced wine violates the Commerce Clause.

      . In Tracy the Supreme Court of the United States stated: "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby 'imped[es] free private trade in the national marketplace.' " 519 U.S. at 287, 117 S.Ct. 811 (alterations in original; citations omitted).

      . By the trial court’s logic, a person’s income tax assessed on wages is actually paid by the person's employer and not the employee because the employer collects the tax and remits it to the State, and because the employer would be subject to a penalty for a failure to properly withhold and remit the tax in the first instance. Thus, by this reasoning, a taxpayer would not have standing to challenge an illegal income tax.

      . The Hawaiian Legislature drafted the excise-tax statute being reviewed in Bacchus so that the incidence of the excise tax would fall on the wholesaler:
      "HRS § 244-4, in pertinent part, read as follows when the taxes in question were assessed:
      'Every person who sells or uses any liquor not taxable under this chapter in respect of the transaction by which such person or his vendor acquired such liquor, shall pay an excise tax which is hereby imposed, equal to twenty per cent of the wholesale price of the liquor so sold or used; provided, that the tax shall be paid only once upon the same liquor; provided, further, that the tax shall not apply to:

      ‘(6) Okolehao manufactured in the State for the period May 17, 1971 to June 30, 1981; or
      " '(7) Any fruit wine manufactured in the State from products grown in the State for the period May 17, 1976 to June 30, 1981.' ”

        In re Bacchus Imports, Ltd., 65 Haw. 566, 569 n. 1, 656 P.2d 724, 726 n. 1 (1982).

      . Section 41-22-5, AIa.Code 1975, provides, in pertinent part:
      "(a) Prior to the adoption, amendment, or repeal of any rule, the agency shall:
      "(1) Give at least 35 days' notice of its intended action. Date of publication in the Alabama Administrative Monthly shall constitute the date of notice. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, shall specify a notice period ending not less than 35 days or more than 90 days from the date of the notice, during which period interested persons may present their views thereon, and shall specify the place where, and the manner in which interested persons may present their views thereon. The notice shall be given to the chairman of the legislative committee, as provided in Section 41-22-23, and mailed to all persons who pay the cost of such mailing and who have made timely request of the agency for advance notice of its rulemaking proceedings and shall be published, prior to any action thereon, in the Alabama Administrative Monthly. A complete copy of the proposed rule shall be filed with the secretary of the agency and the Legislative Reference Service.
      "(2) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. The agency shall consider fully all written and oral submissions respecting the proposed rule. Upon adoption of a rule, the agency, if conflicting views are submitted on the proposed rule, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein its reasons for overruling any considerations urged against its adoption.”

      . See Cumberland Farms Northern, Inc. v. Maine Milk Comm’n, 428 A.2d 869, 873 (Me.1981)("An order setting minimum prices for the sale of milk is, quite precisely,' a 'rule’ within the meaning of 5 M.R.S.A. § 8002(9)(A): it is a 'regulation ... that is or is intended to be judicially enforceable and implements ... or makes specific the law administered by the agency....' ”). Maine’s Administrative Procedure Act, like Alabama’s, is drawn from the Revised Model State Administrative Procedure Act (1961). Maine’s statute states, in pertinent part:
      " 'Rule' means the whole or any part of every regulation, standard, code, statement of policy, or other agency statement of general applicability, including the amendment, suspension or repeal of any prior rule, that is or is intended to be judicially enforceable and implements, interprets or makes specific the law administered by the agency, or describes the procedures or practices of the agency."
      Me. Rev. Stat. Ann. tit. 5, § 8002.9.A. Section 41-22-3(9), Ala.Code 1975, states, in pertinent part:
      "RULE. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule or by federal statute or by federal rule or regulation....”

        See also Kneeland Liquor, Inc. v. Alcoholic Beverages Control Comm’n, 345 Mass. 228, 233-34, 186 N.E.2d 593, 596-97 (1962)(holding under its statute that the ABC Commission's setting of minimum prices "is a regulation and does fall within” the State Administrative Procedure Act because "[t]he establishment of retail prices for customers of retail stores is an exercise of the police power in order to promote temperance, to stabilize the business, to avoid price wars, to instill observance of the law, and to protect the public.... The approval [of prices] constituted a 'requirement of general application and future effect adopted by an agency to implement or interpret the law enforced or administered by it.’ ”).

      . The trial court concluded that the Administrative Procedure Act did not authorize it to strike down the ABC Board's wine-pricing scheme because the Administrative Procedure Act “is not meant to alter the substantive rights of any person or agency.” § 41-22-2(c), Ala.Code 1975.


source: Caselaw Access Project

author: STUART, Justice.

license: Public Domain

text:
    Anna Belle NEWMAN, as administrator of the estate of Joseph E. Kennedy, deceased v. Helen Kennedy SAVAS.
    1021189.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      Nathan P. Friedlander, Mobile, for appellant.
    V. A1 Pennington, Mobile; and Walter H. Honeycutt, Mobile, for appellee.
   STUART, Justice.

Anna Belle Newman, as administrator of the estate of Joseph E. Kennedy, deceased, appeals from a summary judgment entered by the Mobile Circuit Court in favor of Helen Kennedy Savas.

Facts

In October 1990, attorney Chris Peters prepared a will for Joseph E. Kennedy and witnessed Kennedy’s execution of the will. Subsequently, the original will was lost or misplaced, and upon Kennedy’s death on April 16, 2001, the original will remained lost.

In July 2001, Anna Belle Newman, the general administrator for Mobile County, filed a petition in the Probate Court for Mobile County to probate a copy of Kennedy’s lost will. In November 2001, Helen Kennedy Savas, Kennedy’s daughter and his only natural heir, filed a will contest, alleging that the will presented for probate was invalid and that it did not reflect the true intentions of Kennedy. On December 21, 2001, the probate judge admitted the lost will to probate.

On January 23, 2002, Savas filed a motion for a new trial, or, in the alternative, for a judgment as a matter of law in the probate court. Subsequently, the probate court granted Savas’s motion for a new trial, and, upon notice that the probate court had granted the motion, Savas filed, on February 14, 2002, an amended complaint contesting the will and a motion to transfer the will contest to the Mobile Circuit Court. In response, Newman filed an objection to the motion to transfer, alleging that removal to the circuit court was untimely because it was made posttrial.

On April 19, 2002, the probate court issued an order denying Newman’s motion to alter, amend, or vacate the order of the probate court granting the new trial. The April 19 order also granted Savas’s motion to transfer the will contest to the circuit court. In the circuit court, Newman filed a motion to dismiss for lack of subject-matter jurisdiction and asked that the contest be remanded to the probate court. Savas then filed a response to the motion to dismiss; the trial court summarily denied the motion; and the parties then each filed a motion for a summary judgment. After a hearing on the competing summary-judgment motions, the circuit court, in March 2003, entered an order granting Savas’s summary-judgment motion and denying Newman’s summary-judgment motion. Newman appealed.

On appeal, Newman argues that the circuit court erred in refusing to dismiss the will contest for lack of subject-matter jurisdiction and then erred in granting Sa-vas’s summary-judgment motion. Because we conclude that the circuit court did not have subject-matter jurisdiction, we pre-termit any discussion of whether the summary judgment was proper.

Standard of Review

A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.

Issue and Analysis

Newman contends that the circuit court erred in refusing to dismiss this case because, she says, the circuit court did not have subject-matter jurisdiction over the will contest.

Section 43-8-198, Ala.Code 1975, as amended, gives a circuit court authority to hear will contests, stating, “Upon the demand of any party to the contest, made in writing at the time of the filing of the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made.... ” A will contestant’s “initial pleading” is “the filing of the contest itself in the probate court.” Marshall v. Vreeland, 571 So.2d 1037, 1038 (Ala.1990).

Moreover, “[bjecause will contest jurisdiction is statutorily conferred, the procedural requirements of the applicable statute must be complied with exactly.” Kaller v. Rigdon, 480 So.2d 536, 538 (Ala.1985). In Kaller, this Court stated:

“[Bjecause the proponent did not file a pleading at the same time he filed the motion to transfer, he did not comply with the procedures mandated by the statute. Since the statute was not exactly complied with, the circuit court lacked jurisdiction to try the contest.”

480 So.2d at 538 (although Kaller involved the proponent of a will, rather than a contestant, the language of the statute applies similarly to both). Therefore, if a party does not follow the statutory requirements “exactly,” the opportunity to remove the case is lost.

In this case, Savas did not file a petition for removal when she filed her initial pleading—the notice of the will contest. Therefore, Newman asserts, the procedural requirements of § 43-8-198 were not complied with and the circuit court did not have subject-matter jurisdiction over the will contest. However, Savas contends that because her motion for a new trial was granted after the probate court had admitted the will to probate, the granting of the motion for a new trial renewed the opportunity to remove the will contest to the circuit court. Thus, this Court must determine whether the granting of a motion for a new trial in the probate court revives the opportunity to remove a will contest to the circuit court.

First, interpreting the plain language of the statute, we conclude that Savas was required to demand the transfer of the will contest when she filed her initial pleading. Because Savas did not file a petition for removal with the initial notice of the will contest, she did not follow the procedural requirements of § 43-8-198 “exactly.” Clearly, because the procedure was not explicitly followed, a petition for removal filed later in the action would have been untimely.

Savas, however, argues that the probate court’s granting of a new trial and her subsequent filing of an amended complaint contesting the will permitted her to request the removal of the will contest to the circuit court at that time. We reject this argument because the language of the statute is clear. The statute specifically states that the request for removal must be “made in writing at the time of filing the initial pleading." In this case the initial pleading was the notice of the will contest filed in the probate court; therefore, any subsequent filing, even one filed after a new trial is granted, does not satisfy the requirements of the statute. See Kelley v. English, 439 So.2d 26, 28 (Ala.1983)(citing Forrester v. Putman, 409 So.2d 773, 775 (Ala.12982))(“[a] circuit court’s jurisdiction over a will contest is statutory and limited”). Because Savas did not file a petition for removal when she filed the notice of the will contest, she was precluded from later being able to remove the case to the circuit court.

In support of her contention, Savas cites Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166 (Ala.2000). Goodman involved a malicious-prosecution action arising out of an arrest for shoplifting from a Wal-Mart discount store. This Court affirmed the judgment for the plaintiff on the condition that the plaintiff accept a remittitur of the punitive-damages award. This Court recognized that if the plaintiff chose a new trial over a remittitur of the damages, the defendant could move for a change of venue based on the doctrine of forum non conveniens. A request for a change of venue, however, is not governed by a statute that confers such limited jurisdiction as does § 43-8-198. Therefore, Goodman is inapplicable here. See Kelley, supra.

Thus, because Savas did not follow the statutory requirements for removing a will contest to the circuit court, the circuit court did not have jurisdiction over the will contest.

Conclusion

Based on the foregoing, the judgment of the circuit court is reversed, and this case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, BROWN, and HARWOOD, JJ., concur.


author: HARWOOD, Justice.

text:
    Kay Allen HART v. Verlon J. PUGH.
    1020300.
    Supreme Court of Alabama.
    Sept. 26, 2003.

      Donald M. Briskman of Briskman & Binion, P.C., Mobile, for appellant.
    Arthur J. Madden III of Madden & Soto, Mobile, for appellee.
   HARWOOD, Justice.

On January 12, 1999, Kay Allen Hart sued her ex-husband Donald A. Hart; Donald’s mother, Johnnie Ruth Brown; and Verlon J. Pugh. Kay’s complaint presented claims of fraudulent transfer of property and conspiracy to defraud. Brown and Pugh filed separate motions for a summary judgment, opposed by Kay, which the trial court granted. Kay does not challenge the summary judgment in favor of Brown; thus, Brown is not a party to this appeal. Kay does appeal the summary judgment entered in favor of Pugh. She argues (1) that the trial court improperly relied on this Court’s decision in Folmar & Associates, LLP v. Holberg, 776 So.2d 112 (Ala.2000), to determine that the Alabama Fraudulent Transfers Act (“the Act”) does not apply to a transfer by an attorney in fact; (2) that the trial court should have allowed the full development of the facts in light of the “scant evidence” Pugh offered in support of his summary-judgment motion; and (3) that genuine issues of material fact exist as to whether the transfer of the real property Kay challenges was directed by Donald and whether Brown and Pugh knew of the “potential” judgment against Donald in Kay’s contempt proceeding.

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).

The record reveals the following facts. On December 19, 1992, several years before Donald and Kay married, Donald and Brown acquired lots 101 and 102 in Bear Point Estates in Orange Beach, Alabama (hereinafter referred to as “the Bear Point property”), as joint tenants with a right of survivorship. The purchase price of $38,989.31 was paid entirely by Brown’s husband and Donald’s stepfather, Clyde Brown, who is deceased.

On October 20, 1997, Donald and Kay were divorced by a judgment entered by the Mobile Circuit Court. Under the terms of the divorce judgment, Donald was obligated to make various monthly payments to Kay; among those were child support and mortgage payments on the marital residence. Donald was also required to execute “limited warranty deeds” to Kay conveying to her a one-half interest in real property located at 16501 Highway 9, Marlow, Alabama (hereinafter referred to as “the Fish River property”), as well as a one-half interest in real property located in Coden, Alabama, both of which were to be owned by Donald and Kay after the divorce as a joint tenancy with a right of survivorship. Donald was responsible for any indebtedness on those properties and for paying all taxes and insurance associated with them. Donald was to “retain, free and clear of any further claim or interest of [Kay] or her estate, all bank accounts, money market accounts, investment accounts, retirement accounts and real estate owned and maintained by [Donald] individually or jointly with his mother, except as otherwise provided herein.” The divorce judgment further stated: “All property received or retained by either party in this Agreement whether or not such property is specifically mentioned herein, shall be and remain the separate property of the party receiving or retaining that property and that property shall be free from any claim by the other or his estate.”

About three months after the divorce, on or about January 27, 1998, Donald sold the Fish River property in its entirety without Kay’s knowledge or consent, in violation of the divorce judgment. Also in violation of the divorce judgment, Donald failed to pay child support and to make mortgage payments on the marital home. On February 11, 1998, Donald executed a power of attorney in favor of Brown, which granted her the authority to, among other things, sell property owned by Donald. Specifically, pertinent provisions of the power of attorney state:

“It is my intention by this power of attorney to grant my attorney in fact the general power to do any act necessary to transact any business which I may be interested, as fully as I might do or could do if personally present, whether the specific power to do so has been enumerated in this Article or not. In no way am I intending to limit the general power to my power of attorney, but for the purposes of illustrating my attorney’s unlimited authority to act for me and in my behalf, I grant to my attorney the specific power to do the following acts described as follows:
“3. To retain, invest in, acquire by purchase, subscription, lease or otherwise, manage, sell at public or private sale, wholly or partly for cash or on credit, contract to purchase or sell, grant or exercise options to purchase, options to sell or conversion rights, assign, transfer, convey, deliver, endorse, exchange, pledge, mortgage, abandon, improve, repair, maintain, insure, lease for any term and otherwise deal with all property, and to release and waive any right of homestead therein, if any.”

Two days later, on February 13, 1998, Kay filed a motion seeking to hold Donald in contempt for failing to pay child support, failing to make the mortgage payments, and selling the Fish‘River property. On that same day, Brown, acting on her own behalf and on behalf of Donald pursuant to the authority granted to her by the power of attorney, deeded the Bear Point property to Pugh, reserving to herself a life estate in the property. She characterized Pugh in her later deposition testimony as her “real good friend.” The consideration stated in the deed was $10 and other good and valuable consideration. The total of the respective appraised values of the two lots constituting the Bear Point property, as shown by an appraisal by the Baldwin County revenue commissioner, was $80,400. The deed conveying the Bear Point property to Pugh listed both Donald and Brown as the grantors. Brown signed tfie deed both on her own behalf and as Donald’s attorney in fact. The language contained under Brown’s signature as Donald’s attorney in fact stated, “Johnnie Ruth Brown, as Attorney in Fact for Donald A. Hart, acting under the terms of that Power of Attorney dated February 11, 1998.” Brown testified at her deposition that she conveyed the Bear Point property to Pugh in exchange for 10 acres of land in Robertsdale, Alabama, and $6,000. Brown testified that she and Donald had discussed selling the Bear Point property before she conveyed it to Pugh, as follows:

“A: ... We had already talked about — in one time [sic] Donald and I talked about selling him [Pugh] the house [the Bear Point property]. I asked him why he wanted to sell the house.
“Q: Asked who? [Donald]?
“A: Yes.
“Q: Okay.
“A: And he said something about it was a — kind of a sore thing with Kay because she wanted her name on that piece of property and that she wouldn’t go over there with him and help him to keep it up or anything. Well, anyway, we did not go through that then, but he was going to take the money out of that piece of property if I had signed it and pay off the note on their home.
“Q: But he didn’t do that?
“A: No, we didn’t do that then.”

It was not until April 14, 1998, that Pugh executed a deed for the 10 acres in Robertsdale, naming Brown as the only grantee. The appraised value of that property as of a May 22, 2000, appraisal report, was $28,000. Also, it was not until May 5, 1998, that Pugh issued a check f&r $6,000, payable to Brown. That check was never negotiated. Brown testified that she divested Donald of his interest in the Bear Point property because “it wasn’t his property until I died.” On May 18, 1998, Kay obtained a judgment in the amount of $15,111 in her contempt action against Donald, representing the child-support ar-rearage, past due mortgage payments, her one-half interest in the sale of the Fish River property, costs, and attorney fees. Subsequently, Kay filed the action underlying this appeal.

The trial court’s order granting Pugh’s motion for a summary judgment states, in pertinent part:

“Appearances were as noted in the record and, after hearing, the court finds as follows:
“1. This is an action brought pursuant to the Alabama Uniform Fraudulent Transfer Act, Code of Alabama (1975) § 8-9A-1 et seq.
“2. The plaintiff is the ex-wife of Donald A. Hart, who died during the pendency of this action. Johnnie Ruth Brown is the mother of Donald A. Hart.
“3. Johnnie Ruth Brown and Donald A. Hart acquired two lots in Baldwin County, Alabama (the Bear Point property), on December 19, 1992. Consideration for the property was paid by Ms. Brown’s deceased husband. The deed to Brown and Hart is a warranty deed with right of survivorship.
“4. Donald A. Hart and the plaintiff, Kay Allen Hart, were divorced on October 20, 1997. In paragraph 7(c) of the Judgment of Divorce, Donald Hart was awarded ‘free and clear of any further claim or interest of [Kay Allen Hart] or her estate in ... real estate owned and maintained by [Donald A. Hart] individually or jointly with his mother, except as otherwise provided herein.’ There was no other provision in the Judgment of Divorce regarding the Bear Point property.
“5. On February 11, 1998, Donald A. Hart executed a power of attorney to his mother, Johnnie Ruth Brown.
“6. Johnnie Ruth Brown conveyed her interest and her son’s interest in the Bear Point property to Verlon J. Pugh for the sum of $6000 and other valuable real property on February 13,1998.
“7. On February 13, 1998 Kay Allen Hart filed a motion for contempt against Donald A. Hart in the Domestic Relations Division of the Circuit Court of Mobile County, Alabama.
“Conclusions of Law
“Decision in this matter is controlled by the Alabama Supreme Court’s decision in Folmar & Associates LLP v. Holberg, 776 So.2d 112 (Ala.2000), wherein the Court held that the Alabama Uniform Fraudulent Transfer Act does not apply to claims against third-party transferors. The defendant Ver-Ion Pugh did not acquire any property from Donald A. Hart, the debtor. Rather, he acquired the Bear Point property from Johnnie Ruth Brown, a third-party transferor. The defendant is, therefore, entitled to judgment as a matter of law.”

Kay contends that the trial court erred in entering a summary judgment in favor of Pugh in reliance on Folmar & Associates, LLP v. Holberg, 776 So.2d 112 (Ala.2000), in light of the “manifest weight of evidence.” In Folmar, William Cagle and Pamela Holberg, husband and wife, divorced. Pursuant to a divorce judgment, Cagle was ordered to pay Holberg alimony in gross in monthly installments and to maintain a $100,000 life insurance policy naming Holberg as the beneficiary.

Cagle later married Regina Wrigley. Approximately two months later, on October 25, 1995, Cagle suffered a stroke, which caused him to lose the use of his arms and legs and, eventually, his ability to eat. Cagle was a partner ‘in a real-estate development firm, Folmar & Associates, LLP (“Folmar”). Even before his marriage to Holberg, Cagle had begun to take draws or cash advance loans from Folmar against his ownership interest in the partnership, which were to be repaid by deductions from Cagle’s interest in Fol-mar’s future earnings. By the time of his stroke, Cagle owed Folmar more than his interest in the partnership was worth, was otherwise significantly indebted, and had let the $100,000 life insurance policy lapse; after his stroke his financial advisors could not find another insurance company that would insure him. On January 22, 1996, he executed a durable power of attorney naming Regina as his attorney in fact.

As a result of his stroke, Cagle was generating extensive uninsured medical expenses. He and his wife met with Jimmy Folmar, one of the other two partners of Folmar; the attorney for the partnership; and the partnership’s certified public accountant. The Cagles also hired Michael Strojny, an agent of the Strojny Corporation, to serve as their financial adviser. Folmar then began advancing the Cagles $20,000 per month for their living expenses and additional sums for other purposes. In May 1997, Folmar reduced the monthly payment to $11,000; at that time Cagle stopped making alimony payments to Holberg. Cagle died in September 1997. Folmar recouped the advances it had made to the Cagles by offsetting them against Cagle’s future draws on his partnership interest. Cagle’s estate was declared insolvent. Holberg then sued Regina, Folmar, and the Strojny Corporation (“the defendants”), alleging intentional infliction of emotional distress, interference with a business relationship, fraudulent transfers, breach of fiduciary duty, self-dealing, and conspiracy. The defendants filed motions for a summary judgment, which the trial court denied except as to the claim of intentional infliction of emotional distress. This Court then granted Folmar and Strojny permission to appeal the trial court’s denial of the motions for a summary judgment as to the remaining claims, pursuant to Rule 5(a), Ala.R.App.P. Regina, who was bankrupt, did not seek appellate review of the denial of her motion for a summary judgment.

On appeal, addressing the fraudulent-transfer claim vis-a-vis Folmar and Stro-jny, this Court stated, in part:

“We have found no case in which the provisions of the Alabama Uniform Fraudulent Transfer Act, §§ 8-9A-l to -12, have been extended to apply to transferors other than the debtor. Hol-berg argues that the defendants were in control of the debtor’s assets and, therefore, should be held liable. Hol-berg also argues that — because the judgment debtor is deceased, the defendants have rendered his estate insolvent, and the wife of the debtor is bankrupt — this Court should permit her to hold the defendants liable under the fraudulent-conveyance statute. Even if we accepted Holberg’s argument that Folmar and Strojny engaged in a conspiracy to defraud her, the Aabama Uniform Fraudulent Transfer Act, by its plain language, does not apply to claims against third-party transferors. Holberg’s claim under that Act should have been asserted against the debtor (Cagle) or his estate. While there may be valid policy arguments for extending the Act to apply to transferors who are in control of the debtor’s assets, ‘it is not for the Judiciary to impose its view on the Legislature.’ Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Therefore, we conclude that the trial court erred in denying the defendants’ motions for a summary judgment on the fraudulent-conveyance claims. Our resolution of this issue makes it unnecessary to address the question whether a plaintiff can recover money damages pursuant to the Alabama Uniform Fraudulent Transfer Act, or whether remedies under that Act are limited to recovering the fraudulently transferred property.”

776 So.2d at 118.

Kay does not ask us to revisit, or in any other way reconsider, the expressed and implicit rationales of Folmar as they relate to the idea that a transfer of assets by the debtor’s attorney in fact is not a transfer by the debtor. Rather, in asserting that the trial court improperly relied on Fol-mar, she challenges that reliance only by attempting to distinguish the facts of that case. Specifically, she asserts:

“The facts in the case at bar are not based upon a simple power of attorney as in Folmar ..., but rather the present transaction is one directed by Donald Hart himself. Just two days prior to the transfer/deed, Donald Hart discussed the sale/transfer of his property with Ms. Brown to Verlon Pugh.... Mr. Hart discussed the transaction with Ms. Brown, executed the power of attorney in favor of Ms. Brown and, while still in town and ‘available,’ had Ms. Brown execute the deed to Verlon Pugh.”

(Kay’s brief, pp. 17-18.) In essence, Kay argues that because Donald directed the conveyance of the Bear Point property to Pugh, it was not a transfer by a third-party transferor, as she apparently accepts was the situation in Folmar, In that regard, she states, “[t]hus, the property was not received from a third party trans-feror as in [Folmar\, but rather was received directly from Donald Hart (acting through Ms. Brown). Therefore, the case at bar is distinguishable from Folmar.”

In support of her contention, Kay cites pages 356-62 of the record, which cover a portion of Brown’s deposition testimony. Primarily, Kay relies on the excerpt quoted earlier as support for her contention that Donald and Brown discussed selling the Bear Point property to Pugh just two days before Brown conveyed it to him. In the statement of the case in her brief to this Court, Kay states that “in the present case, there were questions as to whether the transfer was done at the direction of Mr. Donald Hart.” In her summary of the argument, she asserts that Donald “had a conversation with [Brown] and the eventual transferee, Mr. Verlon Pugh, with regard to divesting his interest.” However, none of the testimony referenced by Kay supports those contentions.

The testimony she cites reveals that Donald and Brown did have a conversation regarding the sale of the Bear Point property to Pugh, but that no action to effectuate a sale was taken at that time. Neither those segments of Brown’s deposition testimony nor any other portion of the record indicates that the conversation took place two days before the conveyance. In fact, there is no evidence to indicate when that conversation occurred. Furthermore, there is no support in the record for the assertion that Pugh himself was present when that conversation took place.

Kay further asserts that “other facts evidence [Donald’s] intent under [the Act].” (Kay’s brief, p. 19.) In support of her argument, Kay relies on Ala.Code 1975, § 8-9A-4, which provides, in pertinent part:

“(a) A transfer made by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made, if the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor.
“(b) In determining actual intent under subsection (a), consideration may be given, among other factors, to whether:
“(1) The transfer was to an insider;
“(2) The debtor retained possession or control of the property transferred after the transfer;
“(3) The transfer was disclosed or concealed;
“(4) Before the transfer was made the debtor had been sued or threatened with suit;
“(5) The transfer was of substantially all the debtor’s assets;
“(6) The debtor absconded;
“(7) The debtor removed or concealed assets;
“(8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred;
“(9) The debtor was insolvent or became insolvent shortly after the transfer was made;
“(10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and
“(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.”

However, as stated earlier, Kay has not presented any evidence to show that Donald participated in Brown’s decision to transfer the Bear Point property to Pugh. Accordingly, we cannot conclude, as Kay urges us to do, that this case is distinguishable from Folmar because the evidence indicated that Donald directed his attorney in fact, Brown, to transfer the property. This is not to say that some of the attendant circumstances in the Brown-Pugh transaction do not raise an eyebrow, but, when we are asked to reverse a lower court’s ruling, we address only the issues and arguments the appellant chooses to present. Having done so in this case, we cannot hold that the trial court erred by entering a summary judgment for Pugh. Because Ala.Code 1975, § 8-9A-4, upon which Kay relies, applies only to the intent of the debtor, and because we have determined that there is no evidence in the record indicating that Donald, the debtor, directed or orchestrated the transfer of the Bear Point property to Pugh, which is Kay’s central contention, we need not address the remaining arguments Kay presents regarding the evidence presented by Pugh in his motion for a summary judgment.

For the foregoing reason, the judgment of the trial court is affirmed.

AFFIRMED.

HOUSTON, SEE, BROWN, and STUART, JJ., concur.

      . Donald died before the trial court entered its summary judgment in favor of Brown and Pugh; however, the exact date of his death is not indicated in the record.

      . Kay argues that the value of the Bear Point property was “at least” $95,100. In support of her contention, Kay states that Pugh received $70,000 for his interest in lot 101 when he subsequently sold it to another party and that the appraised value of lot 102 was $25,100, thus totaling $95,100.

      . Folmar, as Pugh argues its holding, and as Kay apparently views that holding, involved, in certain respects, the alleged fraudulent transfer of property by a third party other than the debtor, in the person of the debtor’s attorney in fact. Kay argues that in the instant case, unlike Folmar, it was Donald, the debtor, who "directed” the conveyance of the Bear Point property to Pugh in an effort to prevent Kay from having it attached under the judgment in her contempt action. Thus, Kay argues, the two situations are distinguishable because Folmar involved the transfer of property by a third party whereas this case does not.


author: PITTMAN, Judge.

text:
    John LARY d/b/a Internal Medicine Clinic v. FLASCH BUSINESS CONSULTING et al.
    2020803.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      John Lary, pro se.
    Robert N. Bailey II and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
    Amicus curiae Robert Biekerstaff, Mt. Pleasant, South Carolina, in support of the appellant.
   PITTMAN, Judge.

John Lary, a physician and the sole proprietor of Internal Medicine Clinic, appeals from a judgment of the Madison Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala. R. Civ. P., Lary’s action against Flasch Business Consulting, Hel-mut Flasch, and Doctor Relations, Inc., arising out of the defendants’ sending of unsolicited facsimile (“fax”) messages to Lary via telephone lines. We affirm in part, reverse in part, and remand.

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); see also Access Capital, Inc. v. Uptoum, Inc., 863 So.2d 1127, 1128 (Ala.Civ.App.2003).

According to the complaint as amended, Lary provides medical services, including emergency medical services, under the name Internal Medicine Clinic. Lary has secured the use of a telephone line that is connected to both a telephone and a fax machine and that Lary uses to make and receive, among other things, emergency telephone calls and fax transmissions related to the rendition of emergency medical services. Lary alleged that the defendants, without permission from Lary, transmitted or caused the transmission of unsolicited advertisements via telephone wires to Lary’s fax machine despite the absence of an established business relationship between Lary and the defendants. In addition to alleging claims under Alabama law of conversion and invasion of privacy, the complaint averred that the defendants’ conduct had violated four subsections of 47 U.S.C. § 227, a portion of the Telephone Consumer Protection Act of 1991 (“the TCPA”) as codified. Photocopies of several documents purporting to be unsolicited advertisements sent to Lary’s fax machine by the defendants were attached as exhibits to Lary’s amended complaint.

Rather than filing an answer, the defendants filed a motion, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Lary’s complaint. In that motion, the defendants contended that Lary did not have a private right of action under the TCPA and that the complaint did not state invasion-of-privacy or conversion claims cognizable under Alabama law. After a hearing, the trial court entered a judgment granting the defendants’ motion to dismiss. Lary appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In his initial appellate brief, Lary argued that the trial court erred in granting the motion to dismiss as to each of his claims. However, following the submission of that brief and the appellees’ brief, he filed what he termed a “Notice of Voluntary Dismissal of Common Law Claims” in which he indicated that he now seeks review only of the trial court’s judgment as to his claims arising under the TCPA; his reply brief confirms that this action leaves only the propriety of the trial court’s judgment as to those claims for this court’s review. Although it is doubtful that Lary’s “notice of dismissal” can properly be construed as a notice of dismissal under Rule 41(a), Ala. R. Civ. P., because of the intervening judgment on the merits (and his appeal therefrom), it is well settled that where an appellant expressly waives error in this court, we will disregard that error as a basis of reversal. See, e.g., Baggett v. Webb, 46 Ala.App. 666, 670, 248 So.2d 275, 278 (Civ.1971), and Rowan v. Rowan, 45 Ala.App. 505, 506, 282 So.2d 685, 686 (Civ.1970) (declining to consider “assignments of error” that had been “expressly waived”). We therefore affirm the judgment of the trial court as to Lary’s state-law invasion-of-privacy and conversion claims and review the trial court’s judgment only as to his claims arising under the TCPA.

Congress enacted the TCPA in 1991, noting, among other things, that “[u]nre-stricted telemarketing ... can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety”; Congress also stated that a federal law governing telemarketing practices was necessary because telemarketers could, at that time, evade the prohibitions of state laws restricting telemarketing “through interstate operations.” Pub.L. No. 102-243, § 2, 105 Stat. 2394 (1991). The TCPA, in addition to imposing other standards regarding certain uses of telephone equipment, provides, in pertinent part, that it is unlawful for any person in the United States to make any telephone call using an automated telephone dialing system, other than a call made for emergency purposes or made with the prior express consent of the party being called, “to any emergency telephone line,” which includes “any emergency line of a ... medical physician or service office” or a “health care facility.” 47 U.S.C. § 227(b)(1)(A)(i). The TCPA also specifically forbids the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” Id. at § 227(b)(1)(C). Subsection (b) of 47 U.S.C. § 227, in which those prohibitions appear, also states, among other things, that “[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring ... an action to recover for actual monetary loss from” a violation of that subsection “or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3) (emphasis added).

The correct interpretation of the phrase “if otherwise permitted by the laws or rules of court of a State” is crucial to the proper disposition of Lary’s appeal of the judgment insofar as it dismissed the claims in his complaint alleging violations of 47 U.S.C. § 227(b)(1)(A)® and § 227(b)(1)(C). There is a split of authority among the various states concerning whether Congress envisioned that the “permission” of a state necessary for a private party to bring an action under 47 U.S.C. § 227(b)(3) would be tacit permission or express permission. Put another way, we must determine whether, under the TCPA, a state must expressly “opt out” of the state-court enforcement mechanism in order for the courts of that state not to have jurisdiction of claims seeking to enforce 47 U.S.C. § 227(b), or whether a state must expressly “opt in” to the state-court enforcement mechanism in order for the courts of that state to exercise jurisdiction of such claims?

To date, published decisions from Georgia, Missouri, New Jersey, New York, and Pennsylvania have all concluded that 47 U.S.C. § 227(b)(3) confers jurisdiction upon state trial courts to entertain actions alleging violations of 47 U.S.C. § 227(b) despite the lack of laws or court rules expressly showing an intent to “opt in.” Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468 (2000); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 910 (Mo.2002) (“the TCPA does not condition the right to bring a private cause of action under it on a state’s adoption of specific legislation permitting such suits[; s]uit may be brought unless a state does not otherwise permit such a suit”); Zelma v. Market U.S.A., 343 N.J.Super. 356, 778 A.2d 591 (App.Div.2001); Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 710 N.Y.S.2d 368 (2000); Aronson v. Fax.com, Inc., 51 Pa. D. & C. 4th 421 (Com. Pleas 2001); cf. Kaufman v. ACS Sys., Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296 (2003) (finding that trial court had jurisdiction to consider claim under 47 U.S.C. § 227(b)(3) because state legislature had never enacted law barring such claims); In re Rules and Regs. Implementing the Tel. Consumer Protection Act of 1991, 7 F.C.C.R. 8752, ¶ 55 (1992) (Federal Communication Commission Report and Order noting existence of private right of action under 47 U.S.C. § 227(b)(3) “[ajbsent state law to the contrary”).

In contrast to those authorities, only one reported decision has unequivocally espoused the “opt in” theory. Autoflex Leasing, Inc. v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815, 817 (Tex.App.2000) (“we hold that Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state courts”). Maryland’s Court of Special Appeals, although declining to adopt the reasoning of Autoflex, has concluded that no private right of action existed in that state under 47 U.S.C. § 227(b)(3) because the Maryland legislature had adopted legislation barring unsolicited faxes but had limited standing to sue under that legislation to that state’s attorney general. R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 149 Md.App. 219, 815 A.2d 816 (2003).

The most recent appellate opinion we have located that has considered the “opt in”/“opt out” issue is from our neighboring state of Florida. In Condon v. Office Depot, Inc., 855 So.2d 644 (Fla.Dist.Ct.App. 2003), a Florida appellate court considered whether a plaintiff who allegedly had received 13 unsolicited faxes from a defendant could maintain an action in a Florida trial court under 47 U.S.C. § 227(b)(3). The Condon court answered that question in the affirmative, reversing a judgment in favor of the defendant dismissing the plaintiffs action for failure to state a claim; it reasoned:

“We join the majority view and conclude that the State is not required to adopt enabling legislation before a state court of competent jurisdiction can entertain this federal law claim. Rather, we interpret the language ‘if otherwise permitted’ to acknowledge the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules or to create courts to accommodate TCPA claims. ‘The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the state create a court competent to hear the case in which the federal claim is presented.’ Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 372 (1990). The ‘federal law takes the state courts as it finds them.’ How-lett, 496 U.S. at 372 (citing Henry Hart, The Relations Between State and Federal Law, 54 Colum. L.Rev. 489, 504 (1954)). ‘The States thus have great latitude to establish the structure and jurisdiction of their own courts.’ Howlett, 496 U.S. at 372. It is these principles of federal law that we conclude are the subject of the ‘if otherwise permitted’ language.
“We align ourselves with the majority view because we are of the opinion that the minority view requiring opt-in legislation runs afoul of the Supremacy Clause of the United States Constitution. There is a presumption of state court jurisdiction over claims arising under federal law. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990). And, while exclusive jurisdiction in state court for a federal claim is unusual, it does not negate controlling principles of constitutional law.
“ ‘Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws “the supreme Law of the Land,” and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure.’
“Howlett, 496 U.S. at 367; see also Testa v. Katt, 330 U.S. 386 (1947) (holding that Rhode Island state courts could not refuse to enforce a federal statute when the courts had jurisdiction that was adequate and appropriate to adjudicate the type of claim covered by the federal statute).”

Condon, 855 So.2d at 647 (footnote omitted).

Alabama law is in accord with the proposition that claims under 47 U.S.C. § 227(b)(3) are permissible in courts of this state. In 1893, our Supreme Court wrote:

“It may be stated as a general rule that whenever a legal right arises, and the State Court is competent to administer justice the right may be asserted in the State Court, although the Federal Court may have jurisdiction of the same question, subject, however, to the proviso that there is no law limiting jurisdiction to the Federal Courts.”

Raisler v. Oliver & Co., 97 Ala. 710, 714, 12 So. 238, 240 (1893). Citing Raisler, the Alabama Supreme Court later held that an Alabama circuit court was “a court of competent jurisdiction to hear and determine” a claim brought under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., noting that “[t]he laws of the United States are as much a part of the law of Alabama as its own local laws.” Forsyth v. Central Foundry Co., 240 Ala. 277, 282, 198 So. 706, 710 (1940). More recently, the Alabama Supreme Court held that “courts of this state must accept jurisdiction over claims brought under 42 U.S.C. § 1983,” which affords a cause of action when one is deprived under color of state law of rights secured by federal law, “if a § 1983 plaintiff selects a state court as his forum.” Terrell v. City of Bessemer, 406 So.2d 337, 340 (Ala.1981) (emphasis added).

The trial court, in granting the defendants’ motion to dismiss, opined that “Congress cannot burden state courts with hearing cases arising out of federal law when there is no concurrent federal jurisdiction.” The holdings of our Supreme Court are to the contrary: Congress may elect to limit jurisdiction over a claim arising under federal law to federal courts, but when it does not choose to do so, Alabama courts have the power and duty to adjudicate claims arising under federal law as well as state law. Unlike federal courts, “our circuit courts are courts of general jurisdiction,” Thomas v. Liberty Nat’l Life Ins. Co., 368 So.2d 254, 256 (Ala.1979), and “shall exercise general jurisdiction in all cases except as may otherwise be provided by law.” Ala. Const, of 1901, amend. 328, § 6.04(b) (emphasis added).

In light of the foregoing authority, we conclude, as have the majority of other state courts considering the question, that a state’s legislative or judicial authorities need not expressly “opt in” in order for the courts of a state to have jurisdiction to hear private civil actions under 47 U.S.C. § 227(b)(3). Moreover, we conclude that the Alabama Legislature has not “opted out,” thereby preventing Alabama courts from entertaining such actions. While the Legislature has enacted the “Alabama Telemarketing Act,” which generally regulates licensure and conduct of entities in the “telemarketing industry” (Ala.Code 1975, § 8-19A-1 et seq.), as well as legislation that creates a state database of persons objecting to telephone solicitations (Ala.Code 1975, § 8-19C-1 et seq.), neither act purports to “occupy the field” of regulating solicitations by telephone. See § 8-19A-23, Ala.Code 1975 (stating that “[n]o provision in this chapter shall be construed to limit any right or remedy provided under law”); § 8-19C-11, Ala. Code 1975 (providing that the remedies, duties, prohibitions, and penalties of §§ 8-19C-2 through 8-19C-10 “shall not be exclusive and shall be in addition to all other causes of action, remedies, and penalties provided by law”).

As we have noted, Lary’s amended complaint alleged that the defendants used or caused the use of automated telephone equipment to make unsolicited and nonemergency telephone calls to an “emergency” telephone line of a physician on numerous occasions and that the defendants used a fax machine, computer, or other device to send unsolicited advertisements to his fax machine. Those allegations, if proved, would demonstrate actionable violations of 47 U.S.C. § 227(b)(1)(A)® and § 227(b)(1)(C), and such violations can be remedied under 47 U.S.C. § 227(b)(3) by a private civil action in the courts of this state. We therefore conclude that the trial court erred in dismissing Lary’s claims that the defendants’ conduct violated 47 U.S.C. § 227(b)(1)(A)(i) and § 227(b)(1)(C).

However, we reach a different conclusion as to Lary’s claims that the defendants’ conduct violated 47 U.S.C. § 227(d)(1). That subsection bars persons in the United States from initiating communications using a fax machine or making telephone calls using automatic telephone dialing systems where those devices do not comply with “technical or procedural standards” prescribed by the Federal Communications Commission; it also bars the use of electronic devices to send faxes unless those faxes are clearly marked with the sending date and time and clearly identify the sender’s name and telephone number. However, in contrast to violations of subsection (b) of 47 U.S.C. § 227, which are subject to private rights of action under 47 U.S.C. § 227(b)(3), Congress did not authorize private citizens to bring actions to impose penalties for or recover damages allegedly flowing from violations of subsection (d) of that statute. As the United States Supreme Court recently held in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), “private rights of action to enforce federal law must be created by Congress,” and in the absence of statutory intent to create a private right and a private remedy under a federal law, “a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” 532 U.S. at 286-87, 121 S.Ct. 1511. Because Congress indicated an intent to make violations of subsection (b) of 47 U.S.C. § 227 actionable by private citizens, but did not indicate a similar intent with respect to violations of subsection (d), we conclude that the trial court properly dismissed Lary’s claim asserting violations of 47 U.S.C. § 227(d).

Based on the foregoing facts and authorities, the judgment of the trial court dismissing Lary’s claims against the defendants is affirmed except as to his claims asserting violations of 47 U.S.C. § 227(b)(1)(A)® and § 227(b)(1)(C). As to those claims, the judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and MURDOCK, JJ„ concur.

      . If a willful or knowing violation of 47 U.S.C. § 227(b) is found, any monetary award may be trebled by the trial court. 47 U.S.C. § 227(b)(3).

      . In framing the question in this manner, we have not overlooked the proposition that states might not have the power to "opt out” of actions seeking to enforce 47 U.S.C. § 227(b), a view apparently held by the amicus curiae who filed a brief in support of Lary. See Robert R. Biggerstaff, "State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-in? Can States Opt-out?" 33 Conn. L.R. 407, 424-30 (2001). That proposition is, in our view, unsound. In enacting the TCPA, Congress expressed its intent that the right of a person or an entity to bring an action under 47 U.S.C. § 227(b)(3) be conditioned upon whether the laws or rules of court of a state "permit” the bringing of such an action. Conversely, if a state’s laws or rules of court were to expressly forbid bringing such an action, the private right of action would not be "permitted.”

      . The amicus curiae notes that the Texas Supreme Court "denied” a petition for review in Autoflex, which under Texas court rules indicates that that court was "not satisfied that the opinion of the court of appeals ha[d] correctly declared the law in all respects, but determined] that the petition presented] no error that required] reversal or that [wa]s of such importance to the jurisprudence of the state as to require correction.” Rule 56.1(b)(1), Tex.R.App. P.

      . However, Maryland’s highest court has recently granted a petition for a writ of certiorari to review that decision. Ponte v. Investors’ Alert, 374 Md. 358, 822 A.2d 1224 (2003) (table).


text:
    John LARY d/b/a Internal Medicine Clinic v. TOM TAYLOR AGENCY.
    2020920.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      John Lary, pro se.
    Suzanne C. Dorsett of Watson, Jimmer-son, Givhan, Martin & McKinney, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

This appeal, like the related appeal in Lary v. Flasch Business Consulting, 878 So.2d 1158 (Ala.Civ.App.2003) (hereinafter “Flasch”), concerns the propriety of a judgment in favor of the defendant on claims asserted by John Lary d/b/a Internal Medicine Clinic under 47 U.S.C. § 227, the Telephone Consumer Protection Act of 1991 (“the TCPA”). In this case, Internal Medicine Clinic, a sole proprietorship owned and operated by John Lary, M.D. (“Lary”), sued the Tom Taylor Agency, an Alabama business entity, in the Madison Circuit Court, alleging that the Tom Taylor Agency had, on February 12, 2002, transmitted or caused the transmission of an unsolicited facsimile (“fax”) 'advertising message to Lary via telephone lines. In addition to alleging claims under Alabama law of conversion and invasion of privacy, Lary averred that the defendant’s conduct had violated four subsections of 47 U.S.C. § 227. A copy of the allegedly unlawful fax advertisement was attached as an exhibit to Lary’s complaint. Lary sought an award of damages totaling $49,999.99.

The Tom Taylor Agency, after answering the complaint, filed a motion for a summary judgment, supported by the affidavit of its president, Randy Taylor. In that affidavit, Randy Taylor testified that the Tom Taylor Agency, located in Madison County, sells, leases, and brokers real estate; he admitted that the Tom Taylor Agency had sent a single fax advertisement to Internal Medicine Clinic offering a lease of commercial property. According to Randy Taylor’s affidavit, the Tom Taylor Agency had no actual or constructive notice that Internal Medicine Clinic objected to receiving fax advertisements. Randy Taylor also testified that the Tom Taylor Agency did not use an automatic dialing system or an artificial or prerecorded voice in making the solicitation, that the Tom Taylor Agency did not repeat the solicitation, that the fax was not directed towards an individual and did not seek personal information about an individual, that the fax was not sent in knowing or willful violation of any law (including the TCPA), that the fax was not sent for harassing or offensive purposes, and that the fax was not false or misleading. The trial court entered a summary judgment in favor of the Tom Taylor Agency, and Lary has appealed from that judgment.

In his initial appellate brief, as in his brief in Flasch, Lary asserted errors in the trial court’s judgment as to each of his claims; however, following the submission of that brief and the appellees’ brief, he filed (as he did in Flasch) what he termed a “Notice of Voluntary Dismissal of Common Law Claims” in which he indicated that he now seeks review only of the trial court’s judgment as to his claims arising under the TCPA. Moreover, his reply brief in this appeal concedes that the summary judgment was properly entered as to his claims alleging violations of subsections (b)(1)(A)(i), (d)(1)(A), and (d)(1)(B) of 47 U.S.C. § 227. Taken together, those actions leave for appellate review only the propriety of the trial court’s judgment as to Lary’s claim that the Tom Taylor Agency violated 47 U.S.C. § 227(b)(1)(C), which pertains to unsolicited fax advertisements; we therefore affirm the summary judgment as to all other claims.

Under Rule 56(c)(3), Ala. R. Civ. P., a trial court may properly enter a summary judgment when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Because the pertinent facts in this case are undisputed, we review the trial court’s application of law to those facts to determine whether the Tom Taylor Agency was entitled to a judgment as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). We review the trial court’s judgment under a de novo standard. See Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993).

As we noted in Flasch, the TCPA forbids the use of “any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). Under the TCPA, an “unsolicited advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” 47 U.S.C. § 227(a)(4). Moreover, the TCPA provides that “[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring ... an action to recover for actual monetary loss from” a violation of subsection (b) of 47 U.S.C. § 227 “or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. § 227(b)(3) (emphasis added).

In Flasch, we concluded that Congress intended that private parties such as Lary could bring an action under 47 U.S.C. § 227(b)(3) for violations of the unsolicited-fax provisions of the TCPA such as that asserted by Lary in this action. Specifically, we rejected the proposition that states must actively “opt in” with respect to the TCPA’s enforcement provisions in order for private parties to be able to seek damages or penalties under 47 U.S.C. § 227(b)(3), and we further concluded that the Alabama Legislature had not expressly “opted out” of that enforcement scheme. 878 So.2d at 1162-63. We therefore reject the invitation of the Tom Taylor Agency to depart from those holdings.

Relying upon Randy Taylor’s affidavit, the Tom Taylor Agency also contends that “there have not been repeated solicitations or knowing and willful violations of the TCPA ... rising to the level of grievance suggested by [Lary].” While we agree that that evidence might be pertinent to whether the conduct of the Tom Taylor Agency was “willful or knowing” so as to warrant an enhanced penalty or damages award under 47 U.S.C. § 227(b)(3), the undisputed evidence reveals that the Tom Taylor Agency, on one occasion, did send a fax advertisement to Lary; in contrast, there is no evidence that Lary offered an “express invitation or permission” to the Tom Taylor Agency to send him a fax advertisement seeking to lease commercial land. In light of the undisputed facts of this case, we conclude that the trial court erred in entering a summary judgment in favor of the Tom Taylor Agency on Lary’s claim asserting a violation of 47 U.S.C. § 227(b)(1)(C). As to that claim only, the trial court’s summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . As we noted in Flasch, the TCPA permits trebling of a monetary award if a willful or knowing violation of 47 U.S.C. § 227(b) is found. 878 So.2d at 1161 n. 1.


author: MURDOCK, Judge.

text:
    Tamekia Wyshae KELLEY v. Adalius D. THOMAS.
    2011215.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.

      Mitch McBeal of The McBeal Law Firm, LLC, Montgomery, for appellant.
    C. Nelson Gill and John A. Henig, Jr., of Copeland, Franco, Screws & ■ Gill, P.A., Montgomery, for appellee.
   MURDOCK, Judge.

TameMa Wyshae Kelley, the mother, appeals from a default judgment entered against her for failing to answer or otherwise defend against a petition for custody filed by Adalius D. Thomas, the father. The mother’s appeal is due to be dismissed as from a nonfinal order.

The mother and the father were apparently never married. They had one child, a son who was born in December 1998. On June 19, 2002, the father filed a petition in the Coosa Circuit Court alleging that he was the father of the child, that the mother was the mother of the child, and that the child had been a resident of Coosa County, where he had lived with the father for most of his life. However, in an affidavit filed with the father’s petition, the father stated that the child was presently residing with the mother in Montgomery and that the child had resided with the mother since February 2002. In his petition, the father alleged that he was a fit and proper person to have custody of the child and requested that the trial court award him sole legal and physical custody. The father also alleged in his petition that it would be in the child’s best interest for the mother to be awarded visitation rights, and he specifically requested that the mother be granted the right to “reasonable visitation” with the child.

In addition to his custody petition, the father also filed a motion requesting that the trial court award him custody of the child pendente lite and a motion requesting that the trial court enjoin the mother from interfering with his custody of the child between June 18, 2002, and July 18, 2002. The father alleged that he was planning to be married on July 6, 2002, that he had planned for the child to participate in the wedding, and that the mother was unhappy that the father had chosen to marry someone other than her. The father was apparently concerned that the mother would not let him have custody of the child for the wedding.

On June 26, 2002, the mother was served with the father’s custody petition. On June 27, -2002, the mother’s counsel, the father, and the father’s counsel appeared at a hearing on the father’s motion for pendente lite custody. Based on an agreement that the parties had reached, the trial court entered an order awarding the father temporary custody of the child from June 27, 2002, through July 15, 2002, awarding the mother temporary custody of the child from July 15, 2002, through August 15, 2002, and directing that each party refrain from interfering with the other party’s custody.

On July 31, 2002, the father filed a motion for a default judgment alleging that more than 30 days had elapsed since the mother had been served with his custody petition and requesting that the trial court enter a default judgment against the mother because, he said, she had failed to answer or otherwise defend against his petition.

Although no hearing was held on the father’s motion, on August 1, 2002, the trial court entered an “Order of Default Judgment” stating that the mother had been duly served with the father’s petition for custody and that she had failed to “plead, answer or otherwise defend this matter.” The trial court further stated, in part:

“1. That [the father] shall have custody of the minor child ... beginning July 16, 2002.
“2. All other issues are hereby reserved until further order of this court.”

On August 5, 2002, the mother, through her counsel, filed an answer to the father’s custody petition. The answer indicates that it was signed by the mother’s attorney on July 30, 2002, and the certificate of service states that it was forwarded to the father’s counsel via first-class mail on July 30, 2002. In addition, the mother’s counsel faxed a copy of the answer to the trial court on August 1, 2002. The answer was not filed until August 5, 2002.

On August 26, 2002, the mother filed a motion to set aside the default judgment and an affidavit in support of her motion. In her affidavit, the mother stated, among other things, that she had retained counsel to represent her as to the father’s custody petition and that she had been unable to contact her counsel from June 27, 2002, until August 23, 2002. She stated that “during this period, I contacted the Alabama State Bar and [the trial judge] concerning this case.” The mother stated that she had not received notice of any hearing as to the custody of her child and that “it [had] come to [her] attention that there [was] a default judgment giving custody of [the child] to [the father].” In her motion, the mother also stated that she was unaware that her counsel had failed to “plead, answer or otherwise defend this matter” and that she had, “in good faith, believed that her attorney would ‘take care of it’ as he promised when he and [the mother] last spoke on June 27, 2002.”

The trial court denied the mother’s motion to set aside the default judgment. The mother appeals, arguing, among other things, that the trial court abused its discretion by entering a default judgment against her without holding a hearing as to the father’s motion for a default judgment. See Rule 55(b)(2), Ala. R. Civ. P. (“[i]f the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application”); 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2687, at 53 (3d ed.1998) (“failure to give the three-day required notice generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment”). While we are sympathetic to the mother’s argument, we cannot reach the merits of her appeal because the trial court’s “Order of Default Judgment” was a nonfinal order.

Although neither party has questioned this court’s jurisdiction, we must consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). A ruling that determines fewer than all the claims is ordinarily not final as to any of the parties or as to any of the claims. Rule 54(b), Ala. R. Civ. P.; see also McGlothlin v. First Alabama Bank, 599 So.2d 1137 (Ala.1992). A “final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ ” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case; if the appellee has not moved for a dismissal, then the court should dismiss the appeal on its own motion. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).

This court concluded in Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App. 1999), that “[t]he question whether an order is a final order may be phrased as whether there is ‘something more for, the court to do.’ ” (Quoting Wesley v. Brandon, 419 So.2d 257, 258 (Ala.Civ.App. 1982).) See also T.B. v. A.J., 812 So.2d 1287, 1289 (Ala.Civ.App.2001) (appeal dismissed as from a nonfinal judgment where the court’s order “awarded the grandmother visitation rights ... but reserved for further consideration the issues of the place and the length of that visitation”). The trial court specifically reserved judgment as to all issues other than the awarding of custody to the father beginning July 16, 2002. The trial court did not rule on the father’s request that the mother be awarded visitation with the child, which the father had alleged would be in the child’s best interest. The “Order of Default Judgment” is not a final judgment. Accordingly, we must dismiss the mother’s appeal.

APPEAL DISMISSED.

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

      .The father works with the Baltimore Ravens professional football organization. It appears that he and the child resided with the child's paternal grandparents in Coosa County. It is unclear whether the child remained with his paternal grandparents during the football season.

      . In another affidavit, the father also stated that in the past the mother had prevented him from visiting with the child.

      . The trial court's order also indicated that the mother intended to file a motion to transfer venue of the proceedings. The trial court purported to set the mother’s "motion” for transfer of venue for hearing on July 22, 2002. However, no such motion for transfer of venue was filed and no hearing was held ' on July 22, 2002.