author: PER CURIAM. MURDOCK, Judge,

text:
    AUBURN MEDICAL CENTER, INC. v. EAST ALABAMA HEALTH CARE AUTHORITY d/b/a East Alabama Medical Center.
    2990162.
    Court of Civil Appeals of Alabama.
    May 11, 2001.

      Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery; and Hugh V. Smith, Jr., Montgomery, for appellant.
    James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for appellee.
   On Application for Rehearing

PER CURIAM.

The opinion of December 22, 2000, is withdrawn, and the following is substituted therefor.

Auburn Medical Center, Inc. (“Auburn Medical”) appeals from a summary judgment entered in favor of East Alabama Health Care Authority d/b/a East Alabama Medical Center (“EAMC”).

On October 14, 1983, Auburn Medical filed an application for a certificate of need (“CON”) with the State Health Planning and Development Agency (“SHPDA”), for the construction and operation of a 64-bed hospital in Auburn. On November 21, 1983, EAMC filed an application with SHPDA seeking approval of an additional 54 beds at its existing hospital. On January 10, 1984, SHPDA approved Auburn Medical’s application for a CON. On May 17, 1984, however, SHPDA (comprised of newly appointed board members) held a hearing and reversed its previous ruling regarding Auburn Medical’s CON,, and simultaneously denied EAMC’s request. On April 4,1987, Auburn Medical sued EAMC and SHPDA in the United States District Court for the Middle District of Alabama, claiming essentially that EAMC and SHPDA had conspired to deprive it of its CON. Auburn Medical later dismissed EAMC from that federal action. The district court dismissed all of Auburn Medical’s claims except its 42 U.S.C. § 1983 claim.

On August 24, 1988, the district court held that the May 17, 1984, SHPDA hearing had been a “sham” and that it had violated Auburn Medical’s Fourteenth Amendment due-process right to an impartial tribunal. Pursuant to its authority under 28 U.S.C. § 2283, “The Anti-Injunction Act,” the district court enjoined SHPDA from reconsidering Auburn Medical’s application and ordered that the CON be reissued to Auburn Medical. In its order, the district court stated, “[T]his Court shall retain jurisdiction of this case until further order of this Court.” The federal court noted it was denying EAMC’s motion to intervene, but that there remained a state-law right of judicial review of SHPDA’s decision to issue the CON. SHPDA appealed the district court’s decision to the Eleventh Circuit Court of Appeals, which affirmed the district court’s judgment.

On January 12, 1989, EAMC filed petitions for judicial review, pursuant to §§ 22-21-275(14) and 41-22-20, Ala.Code 1975, and § 410-l-7-01(22)(d) of the SHPDA Rules and Regulations (1979), in the Lee County Circuit Court and in the Montgomery County Circuit Court. Auburn Medical filed a motion in the United States district court to stay the state-court proceedings. The district court denied the motion to stay on March 16,1990.

On March 23, 1990, the Montgomery County Circuit Court held that SHPDA’s decision to grant Auburn Medical’s CON was improper, and it remanded the case to SHPDA. Auburn Medical appealed to this court, which, in an opinion entered December 19, 1990, reversed the circuit court’s decision and remanded the case. Auburn Medical Ctr., Inc. v. East Alabama Health Care Auth., 583 So.2d 1342 (Ala.Civ.App.1991). EAMC then filed a petition for certiorari review with the Alabama Supreme Court; that court subsequently quashed its writ as having been improvidently granted. Ex parte East Alabama Health Care Auth., 583 So.2d 1346 (Ala. 1991). EAMC then petitioned the United States Supreme Court for review, which was denied. East Alabama Health Care Auth. v. Auburn Medical Ctr., Inc., 503 U.S. 936, 112 S.Ct. 1474, 117 L.Ed.2d 618 (1992).

EAMC then filed a motion for clarification and enforcement, with the United States district court, asking that court to effectuate the judgment and injunction it had rendered on August 24, 1988. With its motion, EAMC asked the federal court to enter an order revoking Auburn Medical’s CON and enjoining SHPDA from reissuing the CON until all parties had had the opportunity to request a fair hearing. In its motion, EAMC stated that the federal court had the authority to grant its requested relief.

On June 26, 1992, the federal district court noted that EAMC had litigated its position through the state courts and had petitioned the United States Supreme Couid; for review. Unsuccessful in its litigation in the state courts, EAMC then returned to the federal court, asking it to disregard the state court’s resolution of the issues at hand. The district court stated in its order:

“The state court judgment in this case is final. As Parsons Steel[, Inc. v. First Alabama Bank, 474 U.S. 518, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986),] makes clear, the state court determination after full litigation by the parties with regard to this Court’s earlier judgment has a pre-clusive effect, pursuant to the Full Faith and Credit Act, upon this Court’s ability to act as requested by East Alabama. Nor would any action of this Court be proper under the relitigation exception to the Anti-Injunction Act. In Parsons Steel, the Supreme Court stated that the relitigation exception to the Anti-Injunction Act applies only when the state court has not yet ruled on the merits of the issue at hand: ‘Once the state court has finally rejected a claim of res judica-ta, then the Full Faith and Credit Act becomes applicable and federal courts must turn to state law to determine the preclusive effect of the state court’s decision.’ 474 U.S. at 524. In this case, there has been a final adjudication in state court as to the rights of the parties and such adjudication must be given full faith and credit by this Court.”

On December 7, 1992, SHPDA approved Auburn Medical’s request for a project modification, because changes had occurred in the hospital industry since the original CON was granted in 1983, with a termination date for the CON of December 6, 1993. On November 2, 1993, Auburn Medical entered into a construction contract with The Robins and Morton Group. On November 4, 1993, Auburn Medical informed SHPDA that it had a contract for the construction of the hospital in compliance with §§ 410-1-2-.13 and 410-1-11-.02 of the SHPDA rules and regulations. Auburn Medical filed a letter with SHPDA, stating that the project architect was ready to begin construction on the hospital as of April 28, 1994. On August 15, 1994, SHPDA sent Auburn Medical a letter advising it that the construction contract met the requirement of a firm commitment and obligation to go forward with such project. The letter also advised Auburn Medical that the CON was extended for 12 months and that the terms of the contract, including the time frames, were between Auburn Medical and The Robins and Morton Group.

On November 9, 1994, EAMC, through its partner, Health Horizons, Inc., applied for a CON to construct and operate an ambulatory surgery center in Auburn. On October 23, 1996, while its own CON was pending, EAMC filed a letter with SHPDA requesting an official determination with respect to the validity of Auburn Medical’s CON.

In a separate action in March 1997, Auburn Medical petitioned for declaratory relief with SHPDA, arguing that EAMC had not followed various requirements of SHPDA law in its past construction projects and additions. The petition was denied by operation of law. Auburn Medical appealed to the Montgomery County Circuit Court. EAMC moved to dismiss, arguing that Auburn Medical had failed to exhaust all of its administrative remedies, by not appealing to a fair-hearing officer before seeking judicial review; the trial court granted the motion. Auburn Medical appealed to this court; and we reversed and remanded, holding that Auburn Medical did not have to appeal to the fair-hearing officer, based on an amendment to § 22-21-275. Auburn Medical Ctr, Inc. v. State Health Planning & Dev. Agency, 814 So.2d 258 (Ala.Civ.App.2000).

On June 17, 1997, in this present case, SHPDA issued a final order denying EAMC’s application, because Auburn Medical already had a CON to construct and operate a 64-bed ambulatory surgery center in Auburn. In that order, SHPDA stated:

“[SHPDA] recognizes that there is no guarantee that the [Auburn Medical] facility will be constructed and several years have elapsed since the original [Auburn Medical] application, however, [Auburn Medical] should not be penalized for the portion of delay caused by the appellate process or due to uncertainties associated with the Board’s consideration of the present application. [Auburn Medical] received a letter from SHPDA affirming the validity of the [Auburn Medical] CON from SHPDA at approximately the same time as the letter of intent associated with the original application was filed in this cause. This Order should not be construed as a finding that the [Auburn Medical] CON will prevent the Board from approving future applications, including those that may be filed by Health Horizons or EAMC, for the construction of surgical facilities in the area should [Auburn Medical] fail to construct a facility pursuant to its CON within a reasonable time period. The Board finds, however, that sufficient period of time has not yet elapsed to justify the Boardfs] disregarding the authorized [Auburn Medical] facility in its need analysis.”

On July 11, 1997, EAMC sued SHPDA and Auburn Medical in the Lee County Circuit Court, seeking a review of SHPDA’s denial of its CON application.

On October 31, 1997, EAMC petitioned for a declaratory judgment and injunctive relief against SHPDA and Auburn Medical, in the Montgomery County Circuit Court. In its petition, EAMC stated that it had filed an application with SHPDA for a CON to operate an ambulatory surgery center in Auburn, and that its application had been denied on June 17, 1997, for the stated reasons that Auburn Medical already had a CON to operate a 64-bed acute-care hospital in Auburn and that there was no need for the ambulatory surgery center proposed by EAMC. The' petition sought, among other things, a declaration that Auburn Medical’s CON was invalid and that EAMC’s CON application should have been granted.

SHPDA answered, asserting that its granting of a CON to Auburn Medical was not improper and that EAMC had already filed a petition for a judicial review in Lee County. SHPDA argued that it was improper for EAMC “to prosecute two actions in the courts of this state at the same time for the same cause and against the same party,” citing § 6-5-440, Ala.Code 1975.

On January 12, 1998, Auburn Medical filed an “Answer, Motion to Dismiss, Counterclaim and Cross Claim,” arguing, among other things, that the proper method for obtaining review of the denial of EAMC’s CON application was a proceeding pursuant to § 41-22-20, and that such a proceeding had already been filed in Lee County on July 11,1997. Auburn Medical also contended that EAMC had come into court with “unclean hands,” because it had failed to obtain the required approval for several of its own construction projects and additions at EAMC. Auburn Medical also asserted that its own CON for the construction and operation of an ambulatory surgery center was proper. Auburn Medical counterclaimed against EAMC, arguing that EAMC had failed to comply with certain provisions of § 22-21-260 et seq. (SHPDA statute), regarding its past construction projects and additions. Auburn Medical cross-claimed against SHPDA, requesting a declaratory ruling regarding EAMC’s failure to follow SHPDA rules and regulations on EAMC’s past construction projects and additions.

EAMC moved for a partial summary judgment on Auburn Medical’s counterclaim regarding violations of SHPDA law; Auburn Medical moved for a partial summary judgment, arguing that EAMC’s declaratory-judgment action was an attempted substitute for a direct appeal and was prohibited. Auburn Medical argued that EAMC sought to have Auburn Medical’s CON invalidated on the grounds that Auburn Medical’s failure to construct a hospital invalidated Auburn Medical’s CON. Auburn Medical further argued that SHPDA already had determined that Auburn Medical’s CON was valid and that the failure or delay of construction of the hospital facility was not fatal to the validity of its CON while litigation was pending. We note that the issues presented in Auburn Medical’s counterclaim and cross-claim were not included in its motion for a partial summary judgment.

Two days before the scheduled hearing on both parties’ partial-summary-judgment motions, EAMC filed a response to Auburn Medical’s motion, arguing that Auburn Medical was not entitled to a summary judgment as to EAMC’s claim that Auburn Medical’s CON was invalid, because, it claimed, there were disputed facts. However, in that same response, EAMC argued that it was entitled to a summary judgment on the issue of the validity of Auburn Medical’s CON. In its brief filed in this court, EAMC contends that it “implicitly” raised the validity of Auburn Medical’s CON in its response.

Pending before the trial court at the July 9, 1999, hearing, when it made the ruling that is the subject of this appeal, were the following motions: (1) motions to quash subpoenas; (2) a motion to consolidate this case with Auburn Medical’s January 6,1999, appeal from an earlier SHPDA ruling on EAMC’s past construction projects; (8) a motion to add the State Board of Public Health as a party; (4) Auburn Medical’s motion for a partial summary judgment; and (5) EAMC’s motion for a partial summary judgment.

At the hearing, the trial court stated:
“Now, what I’m planning on doing, gentlemen, and what I want to hear from y’all, that CON that was issued to Auburn Medical Center, I think it’s invalid. The time’s up. Nothing has been built. As far as your argument about that it’s tolled, that doesn’t work because it was issued, what, back in 1992 or something. You didn’t do anything in the twelve-month period. You didn’t apply for any extension. There is no tolling of that issue, so I’m going to declare that Auburn Medical Center’s CON is invalid. And East Alabama, you need to reapply for one is what y’all are going to have to do.... ”

Subsequently, the trial court granted the motions to quash the subpoenas, denied the motion to consolidate the cases, denied the motion to add the State Board of Public Health, denied Auburn Medical’s motion for a partial summary judgment, granted EAMC’s motion for a partial summary judgment, and specifically held that Auburn Medical’s CON was invalid.

Auburn Medical first argues that the validity of its CON was not before the trial court on the pending motions, because the trial court, sua sponte, entered a summary judgment for EAMC on the issue of Auburn Medical’s CON, even though EAMC had not requested a summary judgment on this particular issue. A trial court may enter a summary judgment on its own initiative; however, it can do so only when there are no genuine issues of material fact and where only questions of law are presented. First Citizens Bank of Luverne v. Jack’s Food Sys., Inc., 602 So.2d 374 (Ala.1992). Auburn Medical has admitted that its hospital has not been constructed. Therefore, there is no factual issue as to that question.

Because Auburn Medical has not built its hospital the issue becomes: Did Auburn Medical’s CON expire or was the time limit on the CON tolled, based on SHPDA Rules and Regulations, § 410-1-11.01? That rule provides:

“Duration of Certificate of Need. A certificate of need issued under these rules shall be valid for a period not to exceed twelve (12) months from the date of issuance. The holder of the certificate of need may apply for an extension of twelve (12) months from the date of the initial expiration date of the certificate of need provided the applicant meets each of the extension criteria set out in this chapter. The running of the duration shall be tolled from the date of the filing of a complaint arising under Code of Ala.1975, §§ 22-21-260, et seq., or other judicial proceeding until such case is dismissed from the judicial process.”

Auburn Medical argues that the time for expiration of its CON was tolled because the federal district court had stated in its August 24, 1988, order that it had retained jurisdiction in the case. Because the district court never expressly stated that it was relinquishing jurisdiction, Auburn Medical argues that its CON had not expired based on 410-1-11.01, which tolls the time for a CON when litigation is pending. We disagree. The federal court, in its March 16, 1990, order denying Auburn Medical’s motion to stay the state-court proceedings, made it clear that the only action enjoined by the court was the SHPDA Board’s power to conduct another reconsideration hearing and that the final action of the SHPDA Board was subject to review in state court. Additionally, in its order of June 26, 1992, the federal court indicated that it could not determine the validity of the CON and that that issue was one for state-court review. Had the federal court retained jurisdiction, then the state-court review would not have been allowed to go forward. The sole issue before the federal court has been decided, and there is nothing pending in the federal court.

Although the prior federal-court litigation did not extend the time limit for Auburn Medical’s CON, we conclude that EAMC’s filing of its own application for a CON tolled the time under 410-1-11.01, the tolling provisions of the SHPDA Rules and Regulations.

The supreme court, in Roberts Health Care, Inc. v. State Health Planning & Development Agency, 698 So.2d 106 (Ala.1997), has interpreted the tolling provisions of the SHPDA Rules and Regulations. In Roberts, SHPDA granted Roberts Health Care (“Roberts”) a CON on August 11, 1993, to build a nursing home. The project was to be a joint venture between Roberts and Regency Oaks Health Care Facility, Inc. (“Regency”). A CON generally has a 12-month duration, but SHPDA may grant an extension, and it did so for Roberts, extending its CON until August 10,1995.

A dispute arose between Regency and Roberts. Six days before Roberts’s CON was to expire, Regency filed a declaratory-judgment action against Roberts and SHPDA, seeking a declaration of all the parties’ rights. The complaint also sought a delay of expiration of the CON under the tolling provisions of SHPDA Rules and Regulations 410-1-11.01 and seeking to prevent SHPDA from acting adversely to Roberts’s CON during the litigation. SHPDA counterclaimed for declaratory relief, seeking a declaration that Roberts’s CON was invalid, on the basis that the time limit on the CON had by then expired.

The first issue to be decided in Roberts was whether the expiration of Roberts’s CON, which was to expire on August 10, 1995, was tolled under the SHPDA rules by Regency’s lawsuit against Roberts and SHPDA. The court held that the time was tolled if Regency’s complaint was a complaint “arising under [§ ] 22-21-260 et seq.,” or an “other judicial proceeding.” The court determined that Regency’s complaint sought to determine its rights in relation to Roberts’s CON and whether the CON was transferable under § 22-21-270(e), a part of “§ 22-21-260 et seq.” 698 So.2d at 110. The court held that the expiration of the CON was delayed by the filing of Regency’s complaint.

It was not necessary for the court to determine whether Regency’s complaint in Roberts was an “other judicial proceeding” under the alternate tolling provision of 410-1-11.01. However, the court noted that if it had not held that Regency’s complaint “was á complaint arising under § 22-21-260 et seq.,” then it would have held that Regency had initiated an “other judicial proceeding.” SHPDA had argued that the term “other judicial proceeding” referred only to judicial proceedings relating to any case under § 22-21-260 et seq., such as an administrative action under the Alabama Administrative Procedure Act; a proceeding relating to SHPDA’s revocation of a CON; or a certiorari petition in the circuit court to have the court review the ruling of a fair-hearing officer. However, the supreme court in Roberts con-eluded that “judicial proceeding” also included the complaint filed by Regency.

In the present case, EAMC contested Auburn Medical’s CON beginning in 1983, which was reviewed in both a federal court and a state court. SHPDA’s letter to Auburn Medical dated August 15, 1994, confirms that Auburn Medical had one year from April 28, 1994, or to actual completion of the project, before its CON would lapse. On November 9, 1994, EAMC, through its partner, filed an application for its own CON. In making its final determination as to EAMC’s CON application, the SHPDA Board determined that Auburn Medical’s CON precluded the need for EAMC to obtain a CON. The administrative proceedings concerning EAMC’s CON discuss Auburn Medical’s CON. The basis for the SHPDA Board’s denial of EAMC’s CON is that Auburn Medical had a valid CON to build a 64-bed hospital and, therefore, the Auburn area did not need another ambulatory surgery center. We conclude that under the particular facts of this case, the phrase “other judicial proceeding” in 410-1-11.01 includes EAMC’s own request for a CON to the SHPDA Board and that the litigation subsequent to that request tolled the time for Auburn Medical’s CON.

Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings.

OPINION OF DECEMBER 22, 2000, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

Unless tolled, Auburn Medical Center’s (“Auburn Medical”) certificate of need (“CON”) expired on or about June 26, 1995. In my view, it was not tolled and, therefore, I would affirm the trial court’s judgment against Auburn Medical in favor of East Alabama Medical Center (“EAMC”). I come to these conclusions based on the following:

I. The Expiration of Auburn Medical’s Certificate of Need

Pursuant to SHPDA Rule 410-1-11.01, a CON is valid for “a period not to exceed twelve (12) months from the date of issuance.” The holder of a CON must “incur a firm commitment or obligation” within this initial 12-month period or the CON “shall be terminated and shall be null and void.” SHPDA Rules 410-1-11-.02 and 410-1-11-03. Auburn Medical’s CON was issued on December 7, 1992; in accordance with SHPDA’s Rules and Regulations and the terms of the CON itself, the CON would be terminated and become null and void on December 6, 1993, if Auburn Medical did not “incur a firm commitment or obligation.”

On November 4, 1993, barely a month before Auburn Medical’s CON was to expire, Auburn Medical informed SHPDA that it had entered into a contract for the construction of the certificated facility and, thereby, had incurred a “firm commitment” or “obligation” in accordance with SHPDA Rules 410-1-2-.13 and 410-1-11-.02. Because Auburn Medical purportedly incurred a “firm commitment” or “obligation” before the expiration of its CON, the expiration date of the CON was continued for a period not to exceed one year or the completion of the construction project. SHPDA Rule 410-1-11-.02. However, according to SHPDA Rule 410-1-11-.04:

“If the holder of the Certificate of Need fails to commence the construction project within the time period stated in the construction contract or to complete the construction project within the time period stated in the construction contract, then the Certificate of Need shall be terminated and shall be null and void.”

Pursuant to the construction contract, construction was to commence on the 64-bed hospital no later than 180 days after the execution of that contract, or May 1, 1994; and construction was to be completed within 425 days of commencement of construction.

On April 28,1994, just three days before the deadline for commencement of construction, Auburn Medical allegedly “commenced construction” of its facility. According to the construction contract, therefore, construction of Auburn Medical’s facility was to be completed by approximately June 26, 1995. On June 25, 1999, however, approximately 4 years after the completion of Auburn Medical’s facility was to occur, counsel for Auburn Medical filed an affidavit in which he advised the court that “construction on the hospital has not begun.” On the record before it, the trial court was justified in finding that completion of the construction was not accomplished within the time set forth in the construction contract. Consequently, pursuant to SHPDA Rule 410-1-11-.04, Auburn Medical’s CON was terminated and became null and void on or about June 26, 1995, unless tolled under SHPDA Rule 410-1-11-.01.

II. The Issue of Tolling

SHPDA Rule 410-1-11-.01 provides:
“The running of the duration [of a certificate of need] shall be tolled from the date of the filing of a complaint arising under § 22-21-260, et seq., Code of Alabama, 1975, or other judicial proceeding until such case is dismissed from the judicial process.”

(Emphasis added.)

The majority, relying upon Roberts Health Care, Inc. v. State Health Planning & Development Agency, 698 So.2d 106 (Ala.1997), concludes that the CON application filed by EAMC on November 9,1994, qualified as a “judicial proceeding” under the foregoing provision. In my opinion, however, the filing of such an application gave rise to an administrative proceeding, not a judicial proceeding, and I do not read Roberts as requiring a holding otherwise since the “judicial proceeding” at issue in that case was an action filed in a circuit court.

Although the Supreme Court in Roberts held that the action in that case was based on a “complaint arising under § 22-21-260, et seq.,” Ala.Code 1975, it proceeded to address, in dicta, SHPDA’s argument that the “other judicial proceeding” option in SHPDA Rule 410-1-11-.01 refers only to “judicial proceedings relating to any case under § 22-21-260 et seq., such as an administrative action under the Alabama Administrative Procedure Act, ... revocation of a CON [by SHPDA,] or ... court review [of a] ruling of a fair hearing officer.” 698 So.2d at 110. As I understand SHPDA’s argument, it was a contention that “other judicial proceedings” were limited to court review of prior administrative cases. Thus, in rejecting this argument and holding that the “other judicial proceedings” option was satisfied, the court was not suggesting that an administrative case would suffice as an “other judicial proceeding.” Instead, it is my understanding that the court simply was explaining that an action initiated in a circuit court, that was not a result of a prior adverse administrative decision, could qualify as an “other judicial proceeding.” Indeed, the Supreme Court ended its discussion of the issue by emphasizing that “[i]t is clear that the complaint Regency filed in the Madison Circuit Court initiated a judicial proceeding.” 698 So.2d at 110. Therefore, I find no authority, even in Roberts’s dicta, for the proposition that a request to the SHPDA Board for a CON constitutes a “judicial proceeding.”

In treating EAMC’s administrative CON application as a judicial proceeding, the majority also relies on the fact that in making its final determination as to EAMC’s CON application, the SHPDA Board determined that Auburn Medical’s CON precluded the need for EAMC to obtain a CON. SHPDA’s consideration of another CON, however, was not peculiar to this case and was, in fact, required under SHPDA’s rules and regulations. One of the criteria SHPDA must consider is whether a need for the project exists— including the effect on existing facilities for services. SHPDA Rule 410-1-6-.06. Thus, in assessing the projected impact of EAMC’s requested CON on the previously approved Auburn Medical facility, SHPDA merely was making a determination required as a prerequisite to ruling on EAMC’s CON application. It was not a direct or binding ruling on the validity of Auburn Medical’s CON. That issue was not before SHPDA. Even if EAMC subsequently had been successful in the circuit court in overturning SHPDA’s adverse determination as to EAMC’s CON, that would not have affected the validity of Auburn Medical’s CON.

On October 23, 1996, EAMC filed a letter with SHPDA requesting a determination with respect to the continued validity of Auburn Medical’s CON. By this time, however, Auburn Medical’s CON already had been expired under SHPDA’s rules for over 16 months. In any event, SHPDA never responded to EAMC’s letter request.

The briefs before us, however, indicate that SHPDA’s June 17, 1997, order denying EAMC’s application for its own CON was based at least in part on the fact that Auburn Medical previously had been issued a CON. Again, however, the question of the validity of Auburn Medical’s CON was not before SHPDA in the 1997 proceeding. Even if it had been, Auburn Medical’s CON expired on or about June 26, 1996, and as a matter of law the 1997 SHPDA order could not resurrect it.

III. Dismissal of Auburn Medical’s Counterclaims

The same claims that were asserted in Auburn Medical’s counterclaim in this case also were the subject of a separate action that Auburn Medical filed in the Montgomery County Circuit Court. That other action subsequently proceeded to a judgment. See Auburn Med. Ctr., Inc. v. State Health Planning & Dev. Agency, 814 So.2d 268 (Ala.Civ.App.2001) (on remand from the Supreme Court) (decided this same date). Therefore, I conclude that the trial court did not abuse its discretion in dismissing Auburn Medical’s counterclaim. See Weinberg v. Weinberg, 460 So.2d 1350, 1361 (Ala.Civ.App.1984).

Accordingly, I respectfully dissent; I would grant the application for rehearing and affirm the judgment of the trial court.

      . The commitment contained in the construction contract extended the CON. SHPDA Rules and Regulations 410-1-2-.13 and 410-1 — 11—.02.

      . Auburn Medical's firm commitment and obligation extended the CON for one year from April 28, 1994, or completion of the project, whichever is later. SHPDA Rules and Regulations 410-1-11-.02.

      . At some point, however, EAMC dismissed that lawsuit.

      . This contention related to the claims raised by Auburn Medical in Auburn Medical Center, Inc. v. State Health Planning & Development Agency, 814 So.2d 258 (Ala.Civ.App.2000).

      . The trial court concluded that there were no remaining issues in this case, apparently based on its holding that Auburn Medical’s CON was invalid.


source: Caselaw Access Project

author: MOORE, Chief Justice.

license: Public Domain

text:
    Ex parte EAST ALABAMA HEALTH CARE AUTHORITY d/b/a East Alabama Medical Center. (In re Auburn Medical Center, Inc. v. East Alabama Health Care Authority d/b/a East Alabama Medical Center).
    1001502.
    Supreme Court of Alabama.
    June 14, 2002.
    Rehearing Denied Aug. 30, 2002.

      James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for petitioner.
    Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery; and Hugh V. Smith, Jr., Montgomery, for respondent.
    Gregg B. Everett, Montgomery, for ami-cus curiae Alabama Hospital Association, in support of the petitioner.
   MOORE, Chief Justice.

This case concerns the validity of a certificate of need (“CON”) granted to Auburn Medical Center, Inc. (“AMC”), by the State Health Planning and Development Agency (“SHPDA”) in 1984. The East Alabama Medical Center (“EAMC”) brought a declaratory-judgment action in 1997 to have the CON declared invalid. The trial court held that the CON was invalid; the Court of Civil Appeals reversed the trial court’s judgment. We now reverse the judgment of the Court of Civil Appeals.

Procedural History

The validity of the CON at issue in this case has been the subject of litigation in one form or other for nearly 18 years. As would be expected, the procedural background in the case is lengthy and convoluted. The Court of Civil Appeals’ opinion gives a good procedural history of the case. Auburn Med. Ctr., Inc. v. East Alabama Health Care Authority, 847 So.2d 942 (Ala.Civ.App.2001). In order to avoid needless repetition, we provide only the highlights of that history.

In October 1983, AMC applied for a CON to build and operate a 64-bed hospital in Auburn. In November 1983, EAMC applied for a CON seeking approval of an additional 54 beds at an existing hospital. SHPDA approved AMC’s CON on January 10, 1984. On May 17, 1984, SHPDA (whose board members were at that time newly appointed) reversed its ruling approving the CON for ÁMC and also denied EAMC’s request at the same time. On April 4, 1987, AMC sued both SHPDA and EAMC, claiming that they had conspired to deprive AMC of its CON. AMC and EAMC have been embroiled in a controversy over this CON ever since. The Court of Civil Appeals restored the approval of AMC’s CON in a 1990 decision. See Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 583 So.2d 1342 (Ala.Civ.App.1990).

On December 7, 1992, SHPDA approved a request from AMC for a project modification of the CON because of changes that had occurred in the hospital industry since the original CON had been approved in 1984. Thereafter, AMC entered into a construction contract with The Robins and Morton Group, a construction company, pursuant to which The Robins and Morton Group was to build the hospital facility. SHPDA approved the modification and extended the validity of the CON for 12 months. On November 9, 1994, EAMC applied for a CON to build an ambulatory surgery center in Auburn. SHPDA denied that application on June 17, 1997, citing as its reason the CON it had granted AMC for a hospital facility, which at that point still had not been built. It was after this SHPDA ruling that EAMC initiated the present action to have the CON granted to AMC declared invalid.

The trial court invalidated the CON because, in its view, the time limit on the CON had expired under SHPDA regulations. Thus, the question before us, as the Court of Civil Appeals phrased it, is: “Did [AMC’s] CON expire or was the time limit on the CON tolled, based on SHPDA Rules and Regulations, § 410-1-11-.01?” Auburn Med. Center, 847 So.2d at 947. Section 410-1-11-.01 provided, at the time of these proceedings:

“Duration of Certificate of Need. A certificate of need issued under these rules shall be valid for a period not to exceed twelve (12) months from the date of issuance. The holder of the certificate of need may apply for an extension of twelve (12) months from the date of the initial expiration date of the certificate of need provided the applicant meets each of the extension criteria set out in this chapter. The running of the duration shall be tolled from the date of the filing of a complaint arising under §§ 22-21-260, et seq., Code of Alabama, 1975, or other judicial proceeding until such case is dismissed from the judicial process.”

The Court of Civil Appeals ruled that EAMC’s request for a CON from SHPDA and the litigation resulting from that request tolled the expiration date for AMC’s CON, because the SHPDA proceeding qualified as an “other judicial proceeding.” We disagree with that conclusion.

Analysis

SHPDA issued the present version of AMC’s CON on December 7, 1992. Since § 410-1-11-.01 stipulates that a CON will expire after 12 months, AMC’s CON was due to expire in December 1993. However, § 410-1-11-.02 states, in pertinent part:

“The holder of the certificate of need must incur a firm commitment or obligation as defined by statute and these rules within the initial twelve (12) month period, or if extended, within the extension period. Should the obligation be incurred before the expiration date of the certificate of need, then the certificate shall be continued in force and effect for a period not to exceed one year, or:
(a) the completion of the construction project, where the certificate is for construction; .... ”

On November 2, 1993, AMC entered into a construction contract with The Robins and Morton Group, thus incurring the commitment necessary to extend the duration of the CON beyond the December deadline. Under the terms of § 410-1-11-.02, AMC’s CON was now due to expire upon completion of the construction of the hospital facility. However, § 410-1-11-.04 places a restriction on such an extension. That section states, in pertinent part:

“If the holder of the Certificate of Need fails to commence the construction project within the time period stated in the construction contract or to complete the construction project within the time period stated in the construction contract, then the Certificate of Need shall be terminated and shall be null and void.”

Thus, the construction contract became the document dictating when AMC’s CON would expire. Under that contract, construction was to begin no later than 180 days after the execution of the contract, or May 1, 1994, and construction was to be completed within 425 days of the commencement of construction, or no later than June 30, 1995, assuming construction began on May 1. Construction of the facility allegedly began on April 28, 1994; therefore, construction was to have been completed on June 27, 1995. However, on June 25, 1999, counsel for AMC filed an affidavit informing the court that “construction on' the hospital has not begun.” In other words, AMC failed to have its facility completed by the deadline imposed in the contract, which means that by the terms of § 410-1-11-.04, AMC’s CON expired in June 1995. Consequently, the only way AMC’s CON could have been extended is if a “complaint” was filed under § 22-21-260 et seq., Ala.Code 1975, or “other judicial proceeding” before the CON’s expiration date; that extension would have lasted “until such case is dismissed from the judicial process” § 410-1-11-.01.

The Court of Civil Appeals, relying on this Court’s decision in Roberts Health Care, Inc. v. State Health Planning & Development Agency, 698 So.2d 106 (Ala.1997), held that EAMC’s application for a CON filed on November 9, 1994, to build an ambulatory surgery center in Auburn, qualified as an “other judicial proceeding” that tolled the expiration of AMC’s CON. In Roberts Health Care, Inc., Roberts Health Care had obtained a CON to build a nursing-home facility as a joint venture with Regency Oaks Health Care Facility. Six days before the CON was to expire, Regency filed a declaratory-judgment action against Roberts concerning the project. Thus, the question before this Court was whether the filing of the declaratory-judgment action delayed the expiration of the CON under the provisions of § 410-1-11-.01.

The dispute between Regency and Roberts involved whether the CON was trans-ferrable, which is addressed in § 22-21-270(e), Aa.Code 1975. Consequently, the Court found that Regency’s declaratory-judgment action delayed the expiration of Roberts’s CON. In dictum, the Court also stated that had the action not fallen within the confines of § 22-21-260 et seq., it would have held “that Regency had initiated an ‘other judicial proceeding.’ ” 698 So.2d at 110. According to the Court of Civil Appeals, SHPDA had argued in Roberts that the phrase “other judicial proceedings” referred only to actions arising under § 22-21-260 et seq., which included administrative actions, but not to actions falling outside of that title. This Court stated that SHPDA’s definition of the phrase was too limited, and that a judicial proceeding was “ ‘[a]ny proceeding wherein judicial action is invoked and taken.’ ” 698 So.2d at 110, quoting Black’s Law Dictionary (6th ed.1990).

The Court of Civil Appeals applied this dictum to the present case and held that the phrase “other judicial proceedings” was broad enough to encompass “EAMC’s own request for a CON to the SHPDA Board and that the litigation subsequent to that request tolled the time for [AMC’s] CON.” Auburn Med. Ctr., 847 So.2d at 949.

The Court of Civil Appeals, in applying the phrase “other judicial proceedings,” misconstrued the alternative holding of Roberts Health Care and broadened the meaning of that phrase beyond its plain meaning. This Court’s understanding of SHPDA’s argument in Roberts Health Care was that the phrase “other judicial proceedings” referred to court review of prior administrative proceedings specifically initiated under § 22-21-260 et seq. The Court rejected this reading, finding that “other judicial proceedings” also encompassed actions initiated in the circuit court, rather than through the administrative process, that deal in some manner with the subject of the CON, but that do not fall directly under § 22-21-260 et seq. Thus, the Court was not saying in Roberts Health Care that administrative cases that involve no subsequent court action qualify as “other judicial proceedings.”

The Roberts Health Care Court held, pulling its definition from Black’s Law Dictionary, that “[a]ny proceeding wherein judicial action is invoked and taken” that involves the subject matter of the CON qualifies as an “other judicial proceeding.” Black’s Law Dictionary defines a “judicial action” as an “[ajction of a court upon a cause, by hearing it, and determining what shall be adjudged or decreed between the parties, and with which is the right [in] the case.” Black’s Law Dictionary 847 (6th ed.1990) (emphasis added). Another definition of “judicial proceeding” in Black’s, in addition to the one quoted in Roberts Health Care, is “[a]ny step taken in a court of justice in the prosecution or defense of an action.” Id. at 849 (emphasis added). It is obvious from these definitions that a “judicial proceeding” refers to disputes in court and not administrative proceedings.

EAMC’s filing of an application for a CON invoked an administrative review to determine whether the application should be granted; it did not begin a “judicial proceeding.” Indeed, our own cases, which at times do not draw a sharp distinction between administrative and judicial proceedings, still would not allow us to label a request to the SHPDA Board for a CON as a “judicial proceeding.” In Webster v. Byrd, 494 So.2d 31 (Ala.1986), this Court stated:

“Where an administrative proceeding is conducted with the same safeguards as those provided in judicial proceedings, e.g., notice and opportunity to be present, information as to charges made and opportunity to controvert such charges, the right to examine and cross-examine witnesses, the right to submit evidence on one’s behalf, the right to be heard in person, and the presence of an objective decision-maker, see Board of Education of Choctaw County v. Kennedy, [256 Ala. 478, 55 So.2d 511 (Ala.1951)], that proceeding is quasi-judicial in nature....”

494 So.2d at 34 (emphasis added). The proceedings described in Byrd share some characteristics with court proceedings, which is why they were called “quasi-judicial” proceedings. But the action that purportedly delayed the expiration of the CON in this case — filing an application for a CON — bears little, if any, resemblance to a court action.

The plain words of § 410-1-11-.01 discuss “judicial proceedings,” not quasi-judicial proceedings or administrative proceedings; thus, EAMC’s filing an application for a CON does not qualify as an action that delays the expiration of a CON. The first judicial proceeding stemming from the transactions in question came when EAMC sued SHPDA and AMC on July 11, 1997, seeking a review of SHPDA’s denial of their CON application. Yet, as was pointed out above, AMC’s CON had already expired in June 1995 by operation of law.

The Court of Civil Appeals reasoned that because SHPDA’s final order denying EAMC’s application listed AMC’s CON as a reason for denying the application, AMC’s CON was either still in effect or was revived by SHPDA’s order. But SHPDA’s consideration of AMC’s CON was part of the process SHPDA is required to go through when determining whether to grant a CON application to EAMC. Section 410-1-6-.06 requires SHPDA to consider “whether a need for the [proposed] project exists”; one of the factors included in that consideration is “[t]he probable effect of the proposed facility or service on existing facilities.” § 410-1-6-.06. Thus, SHPDA was not specifically deciding on the validity of AMC’s CON, nor would its order dealing with EAMC’s CON have been considered binding on SHPDA had it later had an opportunity to determine the validity of AMC’s CON. In any event, AMC’s CON had expired as a matter of law in accordance with SHPDA’s Rules and Regulations in June 1995, and nothing in those rules gives SHPDA the power to resurrect it.

Accordingly, the trial court correctly determined that AMC’s CON had expired by operation of law and that it was therefore void. The decision of the Court of Civil Appeals is reversed and the case is remanded for the Court of Civil Appeals to enter an order in accordance with this opinion.

REVERSED AND REMANDED.

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

      . Alabama Admin. Code (SHPDA Rules and Regulations) § 410-1-2-.19 defines a certificate of need as
      "[a] permit required by law before which no person, except as exempted by statute, shall acquire, construct or operate a new institutional health service or acquire major medical equipment, or furnish or offer, or purport to furnish a new institutional health service, or make arrangement or commitment for financing the offering of the new institutional health service or acquiring the major medical equipment.”

      . Section 410-1-11-.01 was amended in February 2000; it now reads differently from § 410-1-11-.01 quoted here. The version quoted here is the version in effect at the time of the proceedings in this case.

      . SHPDA informed AMC by letter dated August 15, 1994, that the construction contract met the requirement of a firm commitment or obligation and that it could proceed with the project. Even if we assume that SHPDA's letter of approval extended the deadlines in the contract by approximately three months and that construction could not start until the day after this approval (and nothing indicates that SHPDA’s approval extends the periods designated in a contract), AMC still did not have construction completed within 425 days of August 15, 1994.

      . Even if this was not the Court’s meaning, this portion of Roberts Health Care was clearly dicta; thus, we are not bound by it.

      . SHPDA's order stated, in part, that " '[t]he Board finds ... that sufficient period of time has not yet elapsed to justify the Board['s] disregarding the authorized [AMC] facility in its need analysis.’ " Auburn Med. Ctr., 847 So.2d at 945.


author: PER CURIAM.

text:
    AUBURN MEDICAL CENTER, INC. v. EAST ALABAMA HEALTH CARE AUTHORITY d/b/a East Alabama Medical Center.
    2990162.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Alvin T. Prestwood of Volz, Prestwood & Hanan, P.C., Montgomery; and Hugh V. Smith, Jr., Montgomery, for appellant.
    James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for appellee.
   After Remand from the Alabama Supreme Court

PER CURIAM.

The Alabama Supreme Court has reversed this court’s judgment of May 11, 2001, and has remanded the case. Ex parte East Alabama Health Care Authority, 847 So.2d 951 (Ala.2002). In accordance with the Alabama Supreme Court’s opinion, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: CRAWLEY, Judge.

text:
    FOREST RIVER, INC. v. Bruce POSTEN and Donna Posten. Bruce Posten and Donna Posten v. Forest River, Inc.
    2000954.
    Court of Civil Appeals of Alabama.
    June 7, 2002.

      F. Lane Finch, Jr., and Ryan M. Aday of Haskell, Slaughter, Young & Rediker, L.L.C., Birmingham, for appellant/cross-appellee Forest River, Inc.
    Keith McKerall, Birmingham; and Joe Knight, Birmingham, for appellees/cross-appellants Bruce Posten and Donna Pos-ten.
   CRAWLEY, Judge.

On July 21, 2000, Bruce Posten and Donna Posten sued Forest River, Inc., the manufacturer of a new “Georgetown” model recreational vehicle (“RV”) the Postens had purchased in December 1999 for $78,715.84. The Postens sought damages for breach of express and implied warranties under the Alabama Uniform Commercial Code, Ala.Code 1975, § 7-2-101 et seq., and damages under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (the “Magnuson-Moss Act”), 15 U.S.C. § 2301 et seq., allegedly arising from the sale of the RV; the Postens also sought an award of attorney fees and costs pursuant to 15 U.S.C. § 2310(d). Forest River filed a motion for a summary judgment, which the trial court granted as to the Postens’ implied-warranty, bad-faith, and Magnuson-Moss Act claims. A trial was then scheduled on the Postens’ claim for breach of an express warranty and their request for damages for mental anguish. In its order granting the partial summary judgment, the trial court found that no evidence had been presented indicating that Forest River had refused to conduct warranty repairs, but the trial court permitted the case to proceed to trial on the issue whether those repairs were conducted within a reasonable time. Following an ore tenus proceeding, the trial court entered a judgment in favor of the Postens on their breach-of-express-warranty claim and awarded them $36,550 for property damage and $2,000 for mental anguish.

Forest River appeals, contending that the trial court erred in calculating the Postens’ damages and in awarding damages for mental anguish. The Postens cross-appeal, contending that the trial court erred in refusing to award an attorney fee under the Magnuson-Moss Act.

The record reflects that shortly after the Postens purchased the RV, they began experiencing problems with it: water leaked into the cab from both the driver’s-side and passenger’s-side windows; the “slide-out room” also leaked. According to testimony in the record, those water leaks caused damage to the floor and produced a “sour” smell. In addition, air blew into the RVs cab from under the dashboard on the driver’s side, and the RVs “leveling jacks” engaged while the RV was in motion, sounding alarms and requiring the Postens to make stops to reset the leveling jacks.

On December 13, 1999, Mr. Posten took the RV back to the dealer, Summer Breeze RV Center, from whom the Postens had purchased the RV to repair the problems. After approximately one week, the dealer advised Mr. Posten that the repairs were complete. However, despite the dealer’s attempt to repair the RV, the RV still had leaked. Mr. Posten returned to the dealer and left the RV for additional repairs, which required six weeks to complete. Mr. Posten picked up the RV in late February 2000, after the dealer had installed new windows in the RV. After the second repair attempt, the Postens continued to experience water leaks and leveling-jack problems; every time it rained, water would leak into the RV. Mr. Posten took the RV back to the dealer for a third time and spoke with the service manager, Anthony Leonard, who told Mr. Posten the RV could not be repaired. It was Leonard’s opinion that the windows were poorly designed and that the Postens’ slide-out room was defective.

On March 23, 2000, after the three unsuccessful attempts to remedy the RVs problems, the Postens’ attorney sent a certified letter to Forest River detailing the problems the Postens had experienced with the RV The letter specifically advised Forest River that, if the matter could be resolved, it would not be necessary for the Postens to pursue any legal claims. Forest River admitted that it did receive the letter, but that the letter was lost and was never placed in Forest River’s “unit file.”

During the hearing on Forest River’s motion to alter, amend, or vacate the judgment, the trial court explained how it had arrived at the damages award:

“[Fjirst I determined that [the RV] was not reparable completely because of [expert] testimony that [the expert] could not guarantee that the windows or the leaks could ever be fixed. Therefore, I concluded that [Forest River] was not able to put it back in its original condition, and, therefore, the damages would be determined on a before and after value basis.
“I determined based upon ... testimony that the fair-market value before the accident was $75,000.... [T]he value after [repairs] was $40,000. In its repaired condition [there] was left a difference of $85,000. I added to that the cost of repair $1,550 and came out with a figure of $36,550 and I concluded that $2,000 would be appropriate for the mental anguish and that’s how I came up with $38,550.”

On appeal, Forest River contends that the trial court’s calculation of the property damage was erroneous and that the award was excessive. Specifically, Forest River asserts that the proper measure of damages is the cost of repair, which it asserts is between $914 and $1,550.

The evidence adduced at trial indicated that the Postens’ RV could not be made free of defects. Glenn Langston, a service manager in RV repair and sales who was retained by Forest River to inspect the Postens’ RV, testified that the windows on the Georgetown Model were “notorious for leaking” and that he would not guarantee that any new windows that were installed would not leak. Langston testified that during his examination of the RV, he had taken the windows out and reinstalled them, but when questioned whether he repaired the leaks, he stated: “No, sir, we could not because that’s a defect in the window itself not in the installation process.” Langston further testified that the leaking problem stems from the window assembly, not the installation.

There was also testimony that the Pos-tens’ RV had been seriously devalued. John Vardaman, an RV salesperson, testified that he would accept the Postens’ RV at “well below wholesale market value.” He explained: “I would not want to end up in a situation like this with one of our retail customers with something that we don’t feel like we can repair. I would take it to an auction.” Ron Dudley, an independent adjuster and investigator, testified that he had inspected the RV and had taken it to three dealers to obtain their opinions as to the market value of the RV. Not one of the dealers that Dudley met with would accept the Postens’ RV as a “trade-in” toward the purchase of another RV, and none of those dealers indicated a willingness to purchase the Postens’ RV. Dudley testified that, in his opinion, the Postens’ RV, in an undamaged condition, was worth $75,000; with the defects, he valued the Postens’ RV at between $25,000 and $30,000.

Forest River argues that under the terms of the warranty the Postens were entitled only to the cost of repair as a measure of damages. Forest River’s limited warranty states, in part:

“[Forest River’s] OBLIGATIONS: [Forest River] will remedy substantial defects in materials and workmanship caused by [Forest River]. [Forest River] shall elect to remedy the defect from among the following: repair, replacement or refund.”

Here, evidence was presented that the cost of repairs with parts of like kind and quality would not restore the RV to its fair market value free from defects. Therefore, the trial court could logically conclude that the limited warranty had failed of its essential purpose so as to warrant an award of damages as allowed by the Uniform Commercial Code, Title 7, Code of Alabama 1975 (hereinafter the “UCC”). See Liberty Homes, Inc. v. Epperson, 581 So.2d 449 (Ala.1991). Section 7-2-714(1), Ala.Code 1975, states:

“(1) Where the buyer has accepted goods and given notification ... he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.”

The trial court’s award of damages has a sound basis, given the expert testimony. The court could reasonably have concluded from the evidence that the window leaks were not repairable. We conclude that the trial court’s award of damages was proper in this case.

Forest River also contends that the trial court erred in awarding damages for mental anguish. Specifically, it argues that the evidence does not support an award of mental-anguish damages to the Postens. We disagree. Donna Posten testified concerning the fear she experienced when the leveling jacks engaged while her husband was driving the RV. When the leveling jacks engaged, an alarm that was “almost deafening” sounded. She also testified that the RV had been a profound disappointment:

“It is very upsetting because this is a second home for me. We paid almost as much for this motor home as we did our own home that we live in....
“And, you know, the first thing I do when I get to any home, ... I would take my shoes off and relax. But every time I take my shoes off, I would get my feet wet.... [M]y 12-year old daughter can’t even lay [on] the floor. If you’re not sitting on the furniture, nine times out of ten you might get wet.”

She also testified that there was now a “hump” and a “sink” in the RVs hardwood floor caused by the moisture; she also testified concerning her constant battle to eliminate the RVs sour odor. From that evidence, the trial court could reasonably have concluded that the Postens were entitled to a $2,000 mental-anguish award. See generally Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala.1991) (allowing recovery of mental-anguish damages under the UCC).

On cross-appeal, the Postens contend that the trial court erred in denying their request for an attorney fee. Specifically, they contend that the Magnuson-Moss Act applies and that all prerequisites for an award of an attorney fee have been satisfied. Forest River argues that the Magnuson-Moss Act does not apply because the trial court entered a summary judgment for Forest River on the Postens’ Magnuson-Moss Act claim. However, § 2310(d)(2) of the Magnuson-Moss Act authorizes the award of an attorney fee to prevailing.plaintiffs in warranty actions at the discretion of the trial judge.

Section 2310(d) of the Act provides in pertinent part:

“(1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief—
“(A) in any court of competent jurisdiction in any State ....
“(2) If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorney’s fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award- of attorneys’ fees would be inappropriate.”

15 U.S.C. § 2810(d) (emphasis added).

Section 2810(e) provides:
“No action ... may be brought under subsection (d) of this section for failure to comply with any obligation under any written or implied warranty ... unless the person obligated under the warranty ... is afforded a reasonable opportunity to cure such failure to comply.”

15 U.S.C. § 2310(e).

Thus, the clear language of the Magnu-son-Moss Act allows recovery of an attorney fee by a consumer who prevails in a breach-of-warranty action against a seller under state law, provided the seller is given an opportunity to cure. See Champion Ford Sales, Inc. v. Levine, 49 Md.App. 547, 433 A.2d 1218 (Ct.Spec.App.1981); see also Horton Homes, Inc. v. Brooks, 832 So.2d 44, 54 (Ala.2001) (affirming an award of $34,612.50 in attorney fees and $5,340.03 in costs, pursuant to the attorney-fee provision of the Magnuson-Moss Act where the plaintiff prevailed on his express-warranty claim).

As noted previously, Forest River’s warranty warranted against substantial defects in materials and workmanship. The Postens’ claims — that the RV leaked when it rained, which resulted in damage to the floor and a sour smell, and that the leveling jacks engaged while the RV was in use — both involve defects in either, or both, the materials and the workmanship. Forest River was provided an opportunity to cure these defects. Because the Pos-tens succeeded on their express-warranty claim after affording Forest River the opportunity to cure, the Magnuson-Moss Act permits the assessment of an attorney fee against Forest River. 15 U.S.C. § 2310(d)(2) & (e); see Guerdon Indus., Inc. v. Gentry, 531 So.2d 1202, 1210 (Miss.1988) (awarding an attorney fee where the written warranty warranted against defects in “material and workmanship” and the allegations of the plaintiffs “reveal[ed] defects of this very nature”). Therefore, we reverse the trial court’s denial of an award of an attorney fee under the Mag-nuson-Moss Act and remand the case to that court for it to determine, in its discretion, whether an award of an attorney fee to the Postens is warranted and, if so, to determine an appropriate attorney-fee award.

APPEAL — AFFIRMED.

CROSS-APPEAL — REVERSED AND REMANDED.

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


author: THOMPSON, Judge.

text:
    STATE of Alabama v. TENASKA ALABAMA PARTNERS, L.P.
    2010328.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.

      William H. Pryor, Jr., atty. gen.; and Ron Bowden, chief counsel and asst. atty. gen., and Keith Maddox, asst, counsel and asst. atty. gen., Department of Revenue, for appellant.
    Joseph B. Mays, Jr., and Scott Burnett Smith of Bradley Arant Rose & White, LLP, Birmingham; and Robert D. Thor-ington and Wendell Cauley of Bradley Ar-ant Rose & White, LLP, Montgomery, for appellee.
    J. Theodore Jackson, Jr., and Richard L. McBride, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Alabama Electric Cooperative, Inc., in support of the appellant.
    Marshall Timberlake, William D. Line-berry, and Carl L. Evans, Jr., of Balch & Bingham, L.L.P., Birmingham, for amicus curiae Alabama Power Company, in support of the appellant.
    Thomas H. Brinkley and Robert E. Poundstone IV of Maynard, Cooper & Gale, P.C., Birmingham, for amici curiae Calpine Corporation, Reliant Energy Power Generation, Inc., and Mirant Corporation, in support of the appellee.
   THOMPSON, Judge.

On August 10, 2001, Tenaska Alabama Partners, L.P. (“Tenaska”), sued the Alabama Department of Revenue (“the Department”) in the Autauga Circuit Court, challenging the Department’s classification and assessment of Tenaska’s property as “Class I property” for purposes of the State’s ad valorem tax. The Department contended it had made the classification and assessment pursuant to § 217 and Amendments 325 and 373, Alabama Constitution 1901, and § 40-8-l(a), Ala.Code 1975. Tenaska argued that the classification, and thus the assessment, were erroneous and unconstitutional. The circuit court held a hearing on November 10, 2001, and on November 29, 2001, entered a judgment setting aside the Department’s classification and assessment of Tenaska’s property as “Class I property” and ordering the Department to assess Tenaska’s property as “Class II property.” On January 4, 2002, the Department appealed.

The material facts of this case are not in dispute. On October 29, 2001, the Department and Tenaska submitted a stipulation of facts. The stipulated facts include the following:

“1. Tenaska is a Delaware limited partnership that is registered to do business in the State of Alabama.
“2. Tenaska’s Certificate of Limited Partnership and its Application for Registration as a foreign limited partnership filed in the Office of the Secretary of State of Alabama are silent as to the purposes for which Tenaska was formed, and neither states that Tenaska is organized for the purpose of generating, transmitting or distributing electricity or furnishing electricity to the public.
“3. Tenaska is engaged in constructing in Autauga County, Alabama, a ‘combined-cycle’ combustion turbine fuel conversion facility that will house combined cycle gas turbines capable of producing approximately 846 MW of electricity.
“4. Tenaska will provide fuel conversion services (i.e., converting natural gas to electricity) to Williams Energy Marketing & Trading Company (‘Williams’).
“5. Williams is a Delaware Corporation and is not affiliated with, or related to, Tenaska.
“6. Williams and Tenaska have entered into a long-term Fuel Conversion Services Agreement dated September 5, 1999, pursuant to the provisions of which Tenaska is obligated to maintain the fuel conversion facility so that it is available at any time that Tenaska is called upon by Williams for the conversion of Williams’ natural gas to electricity. Williams has exclusive authority to call upon Tenaska for operation of the Au-tauga County fuel conversion facility. Williams will furnish natural gas and fuel oil owned by Williams to Tenaska for conversion to electricity. Title to the electricity produced from the fuel conversion facility will belong to Williams when produced and this electricity will be sold in the wholesale electricity market by Williams. Tenaska will not own either the fuel that is converted to electricity for Williams or the electricity that is produced for Williams.
“7. The fuel conversion facility is being constructed near an electrical substation that was constructed at Tenas-ka’s expense and is owned by Alabama Power Company. Tenaska will make electricity produced from the conversion of Williams’ fuel and that is owned by Williams available to Williams via the connection to Alabama Power Company’s electrical substation. Tenaska will not own any transmission or distribution facilities over which the electricity is delivered to end-user customers.
“8. Tenaska is not required by law to obtain, and has not obtained, a certificate of convenience and necessity from the Alabama Public Service Commission for the fuel conversion facility, nor is Tenaska subject to rate or other regulatory supervision of the Alabama Public Service Commission. Tenaska also has no franchise to furnish electricity to the public anywhere in Alabama, and has not undertaken to furnish any service to the public.
“9. Tenaska has been determined to be an ‘exempt wholesale generator’ or ‘EWG,’ within the meaning of section 32 of the Public Utilities Holding Company Act of 1935, as amended by the Energy Policy Act of 1992, 15 U.S.C. § 79z-5a. Tenaska also has been determined by the Federal Energy Regulatory Commission to be eligible to charge for its services whatever rate Tenaska and its customer may agree to. Hence, the rate charged by Tenaska is not set or approved by the Federal Energy Regulatory Commission.
“10. By notice dated June 11, 2001, the Alabama Department of Revenue (‘Department’) informed Tenaska of the Department’s preliminary assessment of the value of utility property and notice thereof assessing Tenaska’s property located in the state of Alabama during the year 2000 as Class I, i.e., property of utilities used in the business of such utilities, for ad valorem purposes.
“11. Tenaska contested the Department’s assessment of the value of Tenas-ka’s property, presenting Tenaska’s position that its property should not be assessed as Class I property for ad valo-rem purposes at a hearing before the Department on July 2, 2001.
“12. The Department rejected Te-naska’s contest and entered a final assessment of value assessing Tenaska’s property as Class I property for ad valo-rem purposes on July 11, 2001.
“13. Since the Attorney General of Alabama’s issuance of an opinion stating that the property of propane and butane gas dealers should not be assessed for taxation by the Department on September 18, 1950, in response to the request of the Honorable Bert E. Thomas, Tax Assessor, Mobile County, Alabama, the Department has followed this Attorney General’s opinion and has not assessed the property of propane and butane dealers for ad valorem purposes.
“14. To the Department’s knowledge, prior to the Department’s assessment of Tenaska’s property as Class I property for ad valorem purposes, except for the property of rural electric cooperatives and electric membership corporations, the Department had never assessed any property of a purported ‘electric light or power’ company which was not a public utility subject to the regulatory supervision of either (i) the Alabama Public Service Commission, (ii) a regulatory commission in another state, or (iii) a federal regulatory commission or body, for ad valorem purposes.”

In addition to those facts stipulated to by the parties, the record indicates that at the time of the circuit court’s hearing in this matter, Tenaska was building a fuel-conversion facility in Autauga County; that that facility was near an electrical substation that was constructed at Tenas-ka’s expense but that is owned by Alabama Power Company; that when it is completed the facility will generate electricity for Williams from the conversion of Williams’s natural gas and fuel oil; that that electricity will then be returned to Williams; and that Tenaska’s operation is a new development in the electric-power industry. Alabama appellate courts have not considered the issue of how the property involved in an operation such as Tenaska’s should be classified for ad-valorem-tax purposes. Further, we have found no caselaw dealing with a situation in which the Department has classified something similar to Tenas-ka’s operation as a “utility” or an “electric power company,” as those terms are used in the applicable statutes.

When a case presents no factual disputes and the only issues on appeal deal with the application of the law to undisputed facts, the trial court’s judgment receives no presumption of correctness and the review is de novo. State v. American Tobacco Co., 772 So.2d 417 (Ala.2000). When reviewing the Department’s valuation assessment for ad-valorem-tax purposes, this court will affirm the assessment unless it was contrary to applicable law or was arbitrary or capricious. State Dep’t of Rev. v. Kennington, 679 So.2d 1059 (Ala.Civ.App.1995) (reversing the Department’s assessment of sales taxes on commissioned portraits painted by the taxpayer); State Dep’t of Rev. v. Acker, 636 So.2d 470, 473 (Ala.Civ.App.1994) (reversing the Department’s determination that the shareholders of an Subchapter S corporation were not entitled to an increased basis as a result of loans obtained by the corporation and the shareholders as co-borrowers).

In interpreting a taxing statute, a court must determine “the intention of. the legislature ... primarily ... from the language of the statute itself if it is unambiguous, and clearly expressed intent must be given effect without room for interpretation,” and the court must give the words of the statute “their natural, plain, ordinary, and commonly understood meaning.” Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984) (citations omitted). However, when the proper interpretation of a taxing statute is in doubt, a court is to construe it strictly in favor of the taxpayer and against the taxing authority. Siegelman v. Chase Manhattan Bank, 575 So.2d 1041, 1045 (Ala.1991). Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d at 1223; State v. Hall, 278 Ala. 359, 178 So.2d 518 (1965). Further, in determining the applicable law “[w]here the language of a taxing statute is reasonably capable of two constructions,” a court must adopt “the interpretation most favorable to the taxpayer.” Alabama Farm Bureau Mut. Cas. Ins. Co., 460 So.2d at 1223.

The Department asserts that the trial court erred in setting aside the Department’s assessment of Tenaska’s property as Class I property for purposes of the ad valorem tax. The Department argues that §§ 40-8-1 and 40-21-1, Ala. Code 1975, require that Tenaska’s property be classified as Class I property for purposes of ad valorem taxation. Those sections codified the provisions of Amendments 325 and 373 to the Alabama Constitution of 1901. Amendment 373, amending Article XI, § 217, provides, in pertinent part:

“(a) On and after October 1, 1978, all taxable property within this state, not exempt by law, shall be divided into the following classes for the purposes of ad valorem taxation:
“Class I. All property of utilities used in the business of such utilities.
“Class II. All property not otherwise classified.
“Class III. All agricultural, forest and single-family owner-occupied residential property, and historic buildings and sites.
“Class IV. All private passenger automobiles and motor trucks of the type commonly known as ‘pickups’ or ‘pickup trucks’ owned and operated by an individual for personal or private use and not for hire, rent or compensation.
“(b) With respect to ad valorem taxes levied by the state, all taxable property shall be forever taxed at the same rate. On and after October 1,1978, such property shall be assessed for ad valorem tax purposes according to the classes thereof as herein defined at the following ratios of assessed value to the fair and reasonable market value (except as otherwise provided in subsection (j) hereof) of such property:
“Class I. 30 per centum.
“Class II. 20 per centum.
“Class III. 10 per centum.
“Class IV. 15 per centum.
“(g) The legislature is authorized to enact legislation to implement the provisions of this section and may provide for exemptions from taxation; provided, that unless otherwise expressly provided, no amendment to this section shall be construed to repeal any statutory exemption existing on the effective date of any such amendment hereto.”

Section 40-8-1, Ala.Code 1975, the statutory provision implementing Article XI, § 217, of the constitution, as amended by Amendment 373, is entitled “Ad Valorem Taxes”; it reads, in part:

“(a) On and after October 1, 1978, with respect to ad valorem taxes levied by the state, and, unless otherwise provided, with respect to ad valorem taxes levied by a county, municipality, or other taxing authority other than the state, all taxable property shall be divided into the following classes and no other and shall be assessed for ad valorem tax purposes at the following ratios of assessed value to the fair and reasonable market value of such property, or, as may be provided by law, to the current use value of such property:
“Class I. All property of utilities used in the business of such utilities, 30 percent.
“Class II. All property not otherwise classified, 20 percent.
“Class III. All agricultural, forest, and residential property, and historic buddings and sites, 10 percent.
“Class IV. All private passenger automobiles and motor trucks of the type commonly known as ‘pickups’ or ‘pickup trucks’ owned and operated by an individual for personal or private use and not for hire, rent, or compensation, 15 percent.”

Only the provisions relating to Class I and Class II property are relevant to the issue presented in this appeal. Class I property, “[a]ll property of utilities used in the business of such utilities,” is assessed by using a 30% assessment factor, and Class II property, “[a]ll property not otherwise classified,” is assessed by using a 20% assessment factor. Both Amendment 373 and § 40-8-l(a), the statutory provision implementing Amendment 373, refer to Class I property as “[a]ll property of utilities used in the business of such utilities.” Section 40 — 8—1(b)(5) defines “property of utilities” as “[a]ll property assessed for taxation by the Department of Revenue pursuant to the provisions of Chapter 21 of this title.... ” Title 40, Chapter 21, entitled “Public Utilities,” in pertinent part, delegates to the Department the power to assess certain property for ad-valorem-tax purposes. Section 40-21-1, Ala.Code 1975, gives the Department the authority to assess the value of

“all property of ... all water, electric light or power, hydroelectric power companies, steam heat, refrigerated air, dockage or cranage, toll roads, toll ferries, railroad equipment, pipelines for transporting or furnishing natural, manufactured, or by-product gas, water, oh, gasoline, or other commodities of commerce, and the property of all public service or public utility corporations, and all property not required by law to be listed for taxation with the county tax assessor....”

The term “electric light or power company” is not defined by statute in Alabama.

“Exempt wholesale generators” (“EWGs”), like Tenaska (see paragraph 9 of the stipulated facts), are relatively new to Alabama, and Alabama has no caselaw dealing with EWGs for purposes of ad valorem taxation. However, in State v. Colonial Pipeline Co., 471 So.2d 408 (Ala.Civ.App.1984), a case both parties rely upon, this court construed many of the statutory provisions at issue in this present case. In Colonial Pipeline Co., an oil-pipeline company (hereinafter “Colonial”) appealed the Department’s assessment of its property as Class I property for ad-valorem-tax purposes. Colonial was a corporation involved in the interstate transportation of petroleum products by pipeline. Some of Colonial’s pipelines were located in Alabama and, thus, were subject to Alabama’s ad valorem tax. Colonial asserted that because of the nature of its operations, its property was Class II property for purposes of ad valorem taxation. The Department classified Colonial’s property as Class I property, i.e., as “property of [a utility] used in the business of such utilit[y],” which was subject to the higher assessment rate. Colonial appealed the Department’s assessment to the circuit court. The circuit court held that Colonial’s property could not be assessed as Class I property under the authority of Amendment 373, unless Colonial was determined to be a “utility” as the term “utility” is defined by Alabama law. Further,

“[t]he trial court [held] that § 40-8-1’s definition of Class I property as that property assessed by the Department of Revenue under § 40-21-1 [was] contrary to the provisions of amendment 373 because [the trial court said] it [was] overbroad; [the trial court held that § 40-8-1] converted § 40-21-1 into a taxing statute[;] and [the trial court held that] § 40-21-1 cover[ed] numerous taxpayers which [were] not utilities.”

Colonial Pipeline Co., 471 So.2d at 409. The Department appealed.

This court reversed the circuit court’s judgment, holding that because pipelines were included in both § 40-21-1 and § 40-21-50, Ala.Code 1975, and because both statutory provisions dealt with “public utilities,” those provisions furnished evidence indicating that the Legislature had intended that a pipeline company such as Colonial be considered a “public utility.” Colonial Pipeline Co., 471 So.2d at 411. Further, this court held that the classification of Colonial’s property as Class I property within the meaning of § 40-8-1, Ala. Code 1975, did not violate Amendment 373 because, it concluded, Colonial had characteristics commonly shared by utilities and thus it was not unreasonable to statutorily classify an operation such as Colonial’s as a utility. Id. In reaching that conclusion, this court listed a number of factors that caused Colonial to resemble a utility:

“Colonial [was] regulated by the Federal Energy Regulatory Commission (FERC). The tariffs which it charge[d] its customers [had to] be filed with the FERC and [were] subject to the Commission’s approval.... [T]he rates or tariffs allowed to be charged by Colonial [were required to] be filed with the FERC and [were] subject to the Commission’s approval.... [T]he rates or tariffs allowed to be charged by Colonial [were] based on the valuation of the property of Colonial by the FERC. One of Colonial’s witnesses testified to a ten percent (10%) return on equity allowed by the FERC to Colonial based upon its valuation of Colonial’s property.... The FERC require[d] Colonial to transport goods for any person meeting the minimum standards set by the FERC with regard to batch sizes.”

Colonial Pipeline Co., 471 So.2d at 411. This court also held that to treat the property of oil-pipeline companies as Class I “property of utilities” for purposes of ad valorem taxation did not violate constitutional equal-protection guarantees because, the court concluded, there was a rational basis for characterizing the property of oil-pipeline companies as “property of utilities” for purposes of the .ad valorem tax.

Unlike Colonial in the Colonial Pipeline case, Tenaska bears none of the usual characteristics of a utility, i.e., none of the characteristics that might make it reasonable to classify Tenaska as a utility. Te-naska is not obligated to serve the public, it has no power of eminent domain, it is not subject to regulation by the Alabama Public Service Commission, and its rates are not established by either the Alabama Public Service Commission or the Federal Energy Regulatory Commission. The Department does not contend that Tenaska has any of these characteristics. In arguing that Tenaska is a utility, the Department emphasizes one characteristic of Te-naska’s operation — the fact that Tenaska generates electricity. Relying on that fact, the Department asserts that Tenaska comes within the term “electric light or power ... companfy],” as that term is used in § 40-21-1, Ala.Code 1975.

The statute now appearing as § 40-21-1 was enacted in 1935; the 1935 statute was an administrative statute designed to allow the Department to assess property centrally that was difficult to assess locally (see note 2); it was not a taxing statute. See Act No. 194, Ala. Acts 1935 (Reg.Session); Code 1940, Title 51, § 142; Act No. 95-515, Ala. Acts 1995. It was not until § 40-8-1, Ala.Code 1975, was enacted that the list of property contained in § 40-21-1 came to include not only property that was centrally assessed, but also “property of [a] ... public utility.” From the beginning, the statute focused on property of a sort held by a public utility. Tenaska’s sole operation is generating electricity by using the natural resources provided to it and returning electricity in the place of those resources. The Department would have us hold that, because Tenaska’s property is centrally assessed under § 40-21-1, Ala.Code 1975, Tenaska becomes a “utility” for the purposes of classification and assessment under § 40-8-1, Ala.Code 1975.

We must construe the language of Amendments 325 and 373 and §§ 40-8-1(a) and 40 — 8—1 (b)(5) in light of the fact that those provisions focus on the term “utilities.” “[A] legislative act cannot change the meaning of a constitutional provision.” Jansen v. State ex rel. Downing, 273 Ala. 166, 169, 137 So.2d 47, 49 (1962). The Legislature’s interpretation of a constitutional provision is not controlling where that interpretation would create an unreasonable and irrational result. See Ward v. McDonald, 201 Ala. 237, 244, 77 So. 827, 834 (1918) (“ ‘ “Contemporary construction ... can never abrogate the [constitutional] text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.” ’ ”) (quoting Cooley’s Constitutional Limitations (7th ed. p. 105)). To interpret § 40-8-1 and § 40-21-1 as including nonutility property within the classification of Class I property would fundamentally alter the plain text of Amendment 373. See State v. Colonial Pipeline Co., 471 So.2d 408, 411-12 (this court rejected a challenge to the constitutionality of § 40-8-1, Ala.Code 1975; it based its holding on its determination that the taxpayer in question could reasonably be considered a utility for purposes of the ad valorem tax).

We conclude that in order for Tenaska’s property to be classified as Class I property for purposes of the ad valorem tax, and thus for its property to be assessed under the 30% assessment factor, Tenaska’s operation must come within the terms of § 40-21-1, Ala.Code 1975, and Tenaska’s operation must be that of a utility. The Department has failed to demonstrate that Tenaska has such characteristics of a utility as would make it reasonable to classify its property as Class I property (i.e., as “property of [a utility]”) for ad-valorem-tax purposes. The circuit court properly set aside the Department’s classification and assessment of Tenaska’s property as Class I property for ad-valorem-tax purposes and properly ordered the reassessment of that property. The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . The Energy Policy Act of 1992, Pub.L. No. 102-486, 106 Stat. 2776, resulted in the deregulation of the electricity industry; wholesale generating facilities such as Tenaska were a product of the deregulation.

      . Property is assessed for ad-valorem-tax purposes either locally by the county in which the property is located or centrally by the state. Generally, the authority to assess property is given to the state when the nature of the property makes it difficult to assess locally, e.g., when it crosses county lines.
      "Centralized assessment statutes originated in the latter part of the nineteenth century to assess the property of railroads. These statutes were designed ‘to withdraw the difficult task of assessing fractional parts of a railroad and its property from the hands of local assessors, who could hardly be expected to proceed upon any uniform plan, and each of whom would naturally favor his own particular district.' They also were designed to reach and tax the railroads' large intangible values, which could not effectively be taxed by local assessors. The statutes later were extended to other regulated industries as those industries came into existence."
      James A. Amdur, Property Taxation of Regulated Industries, 40 Tax Law. 339, 342-43 (1987).


author: COBB, Judge.

text:
    Joseph Eugene SIZEMORE v. STATE of Alabama.
    CR-01-1042.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      P. Russell Steen, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

On February 12, 2002, Joseph Eugene Sizemore pleaded guilty to second-degree forgery, a violation of § 13A-9-3(a)(2), Ala. Code 1975. The circuit court sentenced him to two years in prison. That sentence was suspended and Sizemore was placed on two years’ probation.

On April 20, 2001, Joseph Eugene Size-more was driving a vehicle in Jefferson County when he was stopped by Deputy Rick Parish. Sizemore told Deputy Parish that his name was Joseph Eugene Latham; that his nickname was “Butch”; that his date of birth was February 14, 1966; and that he lived in Tennessee. Sizemore testified that he gave Deputy Parish his Social Security number, but Deputy Parish testified that Sizemore “said he couldn’t remember [his Social Security number].” (R. 19.) Deputy Parish issued uniform traffic ticket and complaints (“UTTC”) to Sizemore for driving without an Alabama driver’s license and for having an improper tag on his vehicle. Sizemore signed the tickets “Joseph Eugene Latham” and left. Two days later, Deputy Parish discovered that the name of the individual to whom he had issued tickets was really “Sizemore” instead of “Latham.” Deputy Parish submitted a sworn affidavit to a Jefferson County magistrate for the purpose of ob-taming an arrest warrant for forgery; he attached a copy of the UTTCs to the affidavit. Deputy Parish arrested Sizemore on the forgery charge and issued new UTTCs for the two original violations and an additional ticket for driving without proof of insurance. The new tickets were issued to Joseph Eugene Sizemore, although Size-more refused to sign the tickets. Size-more was charged by indictment with second-degree forgery.

Before his trial date, Sizemore filed a motion to dismiss the indictment, which the circuit court denied after a hearing. After the circuit court denied his motion to dismiss the indictment, Sizemore withdrew his not guilty plea and entered a plea of guilty. Sizemore specifically preserved for appeal the two issues he now raises, and we address each in turn.

First, Sizemore argues that the circuit court erroneously denied his motion to dismiss the indictment. Specifically, he contends that the indictment was due to be dismissed because, according to Sizemore, the tickets were void on their face because, he says, Deputy Parish failed to comply with Rule 19(A)(5)(a), Ala. R. Jud. Admin., and present the tickets to a magistrate within 48 hours. Sizemore also contends that the original UTTCs were rendered void on their face when Deputy Parish issued new citations. We disagree.

Rule 19(A)(5)(a), Ala. R. Jud. Admin., states, in relevant part:

“Each law enforcement officer issuing a traffic ticket shall complete and sign the ticket, serve a copy of the completed ticket upon the defendant and, without unnecessary delay, normally within 48 hours, acknowledge under oath the facts alleged therein before the court or magistrate and file the court copies of the uniform traffic ticket and complaint with the court.”

Sizemore argues that the original tickets were void on their face for two reasons: because Deputy Parish did not present the original tickets to a magistrate within 48 hours; and because Deputy Parish issued new UTTCs to replace the original tickets.

A UTTC is not void on its face for a lack of a judge’s signature. Rather, such a defect goes to personal jurisdiction and not to subject-matter jurisdiction. Smith v. City of Tuscaloosa, 601 So.2d 1136 (Ala.Crim.App.1992). Sizemore did not challenge the personal jurisdiction of the trial court. Sizemore cited Nikolic v. State, 439 So.2d 828 (Ala.Crim.App.1983), to support his claim. The State correctly noted, in its brief to this Court, that Nikolic is factually distinguishable in that the officer in Nikolic failed to sign the ticket. Here, the officer signed the ticket. Additionally, although not in the regular course of presenting UTTCs to a magistrate as provided for in Rule 19(A)(5)(a), the officer did present the UTTCs to a magistrate when obtaining a warrant to arrest Sizemore for the forgery. Deputy Parish testified that he did not present the original UTTCs to the magistrate as required by Rule 19(A)(5)(a), that he instead kept the tickets for evidence.

In Lawrence v. State, 601 So.2d 194 (Ala.Crim.App.1992), this Court stated:

“We hold that the 48-hour requirement of Rule 19(A)(5)(a) is a ministerial or administrative act designed to ensure the accountability of each UTTC issued to a law enforcement agency. Cf. Donovan v. State, 359 So.2d 1181, 1183-84 (Ala.Cr.App.1978) (the failure to timely return a properly executed search warrant does not invalidate the search and seizure). Therefore, in the absence of some showing of prejudice, a defendant has no ground of complaint because the UTTC was untimely verified under Rule 19.”

601 So.2d at 195-96.

Here, Deputy Parish was forced to chose between presenting to the magistrate tickets he knew contained discrepancies, or to obtain an arrest warrant for Sizemore and to then reissue the tickets with accurate information. Deputy Parish attached the UTTCs to a sworn affidavit and presented the affidavit to a magistrate in Jefferson County for a warrant to arrest Sizemore for forgery. Sizemore has failed to make any showing that he was prejudiced by the fact that the original tickets were not sworn before the magistrate within 48 hours. According to the record, Deputy Parish did submit the three new tickets to a Judge, and Sizemore pleaded guilty to the those violations on June 8, 2001. Sizemore has failed to show that the original UTTCs were void on their face.

For the above-stated reasons, Sizemore is not entitled to any relief on this claim.

Sizemore also argues that the indictment was due to be dismissed because, he argues, the name he gave the officer was an alias that was included in the indictment and it was not the name of another person. Thus, he claims, it could not be the subject of a forgery charge. We disagree.

Section 13A-9-3(a), Ala.Code 1975, provides:

“A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
“(2) A public record, or an instrument filed or required or authorized by law to be filed in a public office or with a public employee.”

According to Sizemore, “Latham” is his wife’s last name. He testified that he no longer used the name Sizemore, but rather held himself out as Latham. However, Sizemore’s driver’s license, although suspended, was issued in the name “Size-more.” Were that to be the only evidence presented, Sizemore’s argument would have been significantly more compelling, and clearly in line with the well-established caselaw that holds that merely giving an alias or name that one is known by does not constitute forgery.

However, we note that, according to Deputy Parish, Sizemore also incorrectly stated that his date of birth was February 14, 1966. According to the record, Size-more was born in 1968. This testimony, coupled with the conflicting testimony about whether Sizemore provided Deputy Parish with a Social Security number, gives rise to the inference that Sizemore was acting with the intent to defraud, rather than merely using a name that he was otherwise known by. Certainly, the giving of a false date of birth would constitute the giving of false information, as opposed to forgery. However, based on Deputy Parish’s allegations, Sizemore, in effect, created a fictitious third person and signed that person’s name on an instrument to be filed in a public office as opposed to just signing an alias.

In Tucker v. State, 43 Ala.App. 163, 184 So.2d 366 (1966), the Alabama Supreme Court stated that signing an alias to an instrument did not constitute forgery. The term “alias,” the Court explained, was an abbreviation of “alias dictus,” which meant “otherwise called.” Tucker, 43 Ala.App. at 164, 184 So.2d at 367.

“ ‘The law is well settled that the signing of a fictitious name to an instrument with fraudulent intent constitutes forgery. 8 Am. & Eng. Enc. of Law 457; Williams v. State, 126 Ala. 50, 28 South. 632 [ (1900) ]. And, if such had been the charge here, it would then have become a question of fact as to fraud in identity of the person, as was the case in State v. Wheeler, 20 Or. 192, 25 Pac. 394, 10 L.R.A. 779, 23 Am.St.Rep. 119 [ (1890) ]; Rex v. Sheppard, 1 Leach C.C. 226 [ (1781) ]; Rex v. Whiley, 2 Leach C.C. 983; Commonwealth v. Costello, 120 Mass. 358 [ (1876) ]. But in this case the defendant by signing one of the names by which he was known and called did not sign the name of a fictitious person, but his own. “It is not forgery when the offense is not the assumption of the name of a supposed third person, but the adoption of an alias by the party charged.” Whar.Crim. Law, 1092. All of the foregoing cases recognize the distinction between an instrument signed in an assumed name and passed by the person signing it as his own act and an instrument signed in a fictitious name and passed by the party signing it fraudulently concealing his identity as being the signer.’ ”

Tucker, 43 Ala.App. at 164, 184 So.2d at 367-68 (quoting Harris v. State, 19 Ala.App. 484, 98 So. 316 (1923)).

The exception that we have identified here is narrow and fact specific, and it is not intended to apply where the signing of an alias is the only act by the accused. The principle discussed in Tucker, i.e., that the signing of an alias does not rise to the level of forgery, still holds true under circumstances similar to those in Tucker. However, when used in connection with other actions which demonstrate fraudulent intent or to conceal the signer’s true identity or to convey the impression that the signer is some other third person, the use of an alias may constitute forgery.

Here, Sizemore not only gave Deputy Parish a false name, he also gave other false or misleading information. Thus, Sizemore did not merely give and sign a name that he was otherwise known by. By telling Deputy Parish that he was born in 1966 instead of 1968 and that he could not remember his Social Security number, Sizemore demonstrated the requisite intent to elevate his actions to forgery; he assumed the name of some fictitious third person. The jury could infer that Size-more’s actions were designed to conceal his true identity from Deputy Parish to avoid the tickets. See also State v. Mata, 247 Wis.2d 1, 632 N.W.2d 872 (App.2001)(evidence sustained forgery conviction despite the defendant’s claim of the innocent use of an alias where a jury could infer that the alias was used for a fraudulent scheme or intent).

Because his claim is without merit, Size-more is not entitled to any relief.

For the reasons stated above, the circuit court’s judgement is due to be affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Sizemore also pleaded guilty to a misdemeanor charge arising from the same incident as the forgery charge. In that case, the circuit judge sentenced Sizemore to 12 months in jail; that sentence was suspended, and Sizemore was placed on probation for 12 months. The sentence was to run concurrently with Sizemore's sentence in the forgery case. On appeal, Sizemore raises no issues relating to the misdemeanor conviction, and we do not address that conviction in this opinion.

      . Sizemore testified that, in addition to other things, his residence was leased under the name Latham, and that his tax paperwork was in that name as well.