author: PER CURIAM. HOUSTON, Justice

text:
    Ex parte EMERALD MOUNTAIN EXPRESSWAY BRIDGE, L.L.C., et al. (In re Michael Patterson, Commissioner of the State Department of Revenue; et al. v. Emerald Mountain Expressway Bridge, L.L.C., et al.)
    1012135.
    Supreme Court of Alabama.
    March 14, 2003.

      James N. Walter., Jr., D. Kyle Johnson, M. Courtney Williams, and Richard H. Allen of Capell & Howard, P.C., Montgomery, for petitioners.
    William H. Pryor, Jr., atty. gen.; and Ron Bowden, chief counsel and asst. atty. gen., and Keith Maddox, asst, counsel and asst. atty. gen., Alabama Department of Revenue.
    Thomas T. Gallion III and Constance C. Walker of Haskell, Slaughter, Young & Gallion, L.L.C., Montgomery, for respondent Sarah G. Spear, Revenue Commissioner of Montgomery County.
   PER CURIAM.

Emerald Mountain Expressway Bridge, L.L.C., Alabama River Parkway, L.L.C., and Black Warrior Parkway, L.L.C. (hereinafter referred to collectively as “the taxpayers”), petitioned this Court for a writ of certiorari to review the judgment of the Court of Civil Appeals reversing the trial court’s judgment declaring that § 23-1-81(d), Ala.Code 1975, exempted the taxpayers from the payment of ad valorem taxes. See Patterson v. Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 826 (Ala.Civ.App.2002). We granted the taxpayers’ petition, and we affirm the judgment of the Court of Civil Appeals.

Factual & Procedural History

The facts are undisputed. The taxpayers operate toll bridges in Elmore, Montgomery, and Tuscaloosa Counties and own real property used in connection with the operation of the toll bridges. The taxpayers are licensed to operate the toll bridges pursuant to § 23-1-81, Ala.Code 1975, which authorizes the county commission of each county in the State or the Alabama Department of Transportation to issue licenses to private individuals or entities to operate toll bridges and toll roads.

The dispute in this case involves the interpretation of § 23-l-81(d), specifically whether the statute provides the taxpayers an exemption from ad valorem taxes. Effective April 11, 2000, the Legislature amended § 23-1-81 by enacting Act No. 2000-216, Ala. Acts 2000. The purpose of Act No. 2000-216, as it appears in the title of the act, is expressed as follows:

“To amend Section 23-1-81, Code of Alabama 1975, to allow the Department of Transportation or a county commission to issue licenses for the establishment and operation of toll roads, toll bridges, ferries or causeways; and to provide that no further tax or fees shall be imposed upon any of the toll roads, toll bridges, ferries or causeways after licensure.”

(Emphasis added.) As amended, § 23-1-81(d) provides:

“After a license is issued pursuant to subsection (b) or (c) by a county commission or the State Department of Transportation, no further license of any type from any governmental body or agency, including, but not limited to, a business license, shall be required to construct, own, or operate the toll road or the toll bridge, ferry or causeway and no further license, tax, or fee may be imposed by any governmental body or agency.”

Pursuant to § 23-l-81(d), the taxpayers sought exemptions from the payment of ad valorem taxes on the real property used in connection with the operation of the toll bridges. The exemptions were denied, and on February 9, 2001, the taxpayers sued Michael Patterson, commissioner of the Alabama Department of Revenue; William M. Harper, revenue commissioner of Elmore County; Sarah G. Spear, revenue commissioner of Montgomery County; and Doster L. McMullen, tax assessor of Tuscaloosa County (hereinafter referred to collectively as “the revenue commissioners”). The taxpayers claimed that under § 23-l-81(d) they were exempt from the payment of ad valorem taxes and that they were entitled to a refund for the ad valo-rem taxes previously paid for the tax year beginning on October 1, 1999, and ending on September 30, 2000.

Both the taxpayers and the revenue commissioners filed motions for a summary judgment. The trial court entered a summary judgment in favor of the taxpayers and stated that the language of § 23-1-81 (d) was clear and unambiguous. The trial court concluded that the language “manifest[ed] the Legislature’s intention to encourage the establishment and operation of private toll bridges by exempting them from further tax.” The trial court held that because the Legislature chose to use the language, “further license, tax, or fee,” it did not intend to limit the tax exemption to new or additional license taxes as the revenue commissioners argued. The trial court ordered the revenue commissioners to refund the taxes paid for the previous tax year, prorated from April 11, 2000, the effective date of § 23-l-81(d).

The revenue commissioners appealed to the Court of Civil Appeals; that court reversed the trial court’s judgment, holding that § 23-l-81(d) did not provide the taxpayers with an exemption from ad valo-rem taxation. The Court of Civil Appeals agreed with the revenue commissioners that § 23-1-81 (d) “does not express a clear intention by the Legislature to exempt the taxpayers’ real property from ad valorem taxation.” Patterson, supra, 856 So.2d at 828-29. The Court of Civil Appeals stated:

“First, we agree with the revenue commissioners that § 23-1-81 is a statute that regulates the licensing of operators of toll roads and bridges. The word ‘tax’ appears in § 23-1-81 (d) in the phrase ‘no further license, tax, or fee may be imposed by any governmental body or agency.’ ... [Section] 23-1-81(c) grants the State Department of Transportation the authority to license a private entity to operate a toll road or a toll bridge. We interpret § 28-1-81 (d) as providing that the license issued by the State Department of Transportation in this case for the operation of a toll bridge is the only license needed for the operation of the toll bridge, and the phrase containing the word ‘tax’ prohibits any other governmental entity from requiring any further ‘license, tax, or fee’ for the operation of the toll bridge. Furthermore, the word ‘ad valorem’ is not used at all in Title 28 — ‘Highways, Roads, Bridges, and Ferries.’ Therefore, we conclude that § 23 — 1—81(d) does not express a clear legislative intent to exempt the taxpayers’ property from ad valorem taxation.
“Our conclusion is further buttressed by § 40-9-1, Ala.Code 1975, which states: ‘The following property and persons shall be exempt from ad valorem taxation and none other ... ’ (emphasis added). The property and persons subsequently listed in subsection (1) through (26) do not include the taxpayers’ or their real property. The taxpayers counter this reasoning by pointing out in their brief that Code sections other than § 40-9-1 provide for exemptions from ad valorem taxation.
“The taxpayers are correct that other provisions of Alabama law provide exemptions from ad valorem taxation; however, all those provisions contain an express exemption from ad valorem taxation.”

Patterson, 856 So.2d at 829.

Standard of Review

We review a summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party while applying “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary-judgment motion is to be granted only when the evidence demonstrates that no genuine issue exists as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P; Oliver v. Woodward, 824 So.2d 693, 697 (Ala.2001); Slay v. Keller Indus., Inc., 823 So.2d 623, 624-25 (Ala.2001).

To defeat a properly supported summary-judgment motion, the nonmoving party must present substantial evidence creating a genuine issue of material fact. “ [Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Analysis

We first address the taxpayers’ argument that because the plain language of § 23-l-81(d) “clearly and unambiguously” grants those licensed to operate toll roads and toll bridges an exemption from ad valorem taxation, this Court should not look beyond the words used in the statute; they argue that it is not necessary to resort to secondary rules of statutory construction in interpreting the statute. The taxpayers contend that the revenue commissioners’ interpretation of § 23-1-81(d) — that no additional license, tax, or fee may be imposed on the taxpayers for the purpose of licensing — impermissibly asks this Court to rewrite the statute and thus violates the separation-of-powers doctrine.

The revenue commissioners argue that the Court of Civil Appeals applied the appropriate rules of statutory construction by holding that § 23 — 1—81(d) did not express a clear intent to exempt the operators of toll roads and toll bridges from ad valorem taxation. In their brief to this Court, the revenue commissioners argue that a reasonable interpretation of the statute is “that once a license is issued allowing owners to construct, operate and own toll bridges, governmental entities are prohibited from imposing any further or additional license, tax or fee as a condition before one may construct, own or operate a toll bridge.” They contend that this Court should avoid adhering to strict definitions and should approach the issue of legislative intent by examining the statute as a whole.

All real property in this State is subject to ad valorem tax unless it is specifically exempt by a statute or a constitutional provision. § 40-11-1, Ala.Code 1975 (enumerating real property as a subject of ad valorem taxation); § 40-9-1, Ala.Code 1975 (enumerating the property and persons that are exempt from ad valorem taxation); Crim v. Phipps, 601 So.2d 474, 476 (Ala.1992). It is well settled that “taxation is the rule and an exemption is the exception.” AU Hotel, Ltd. v. Eagerton, 689 So.2d 859, 861 (Ala.Civ.App.1996); Brown v. Protective Life Ins. Co., 188 Ala. 166, 168, 66 So. 47, 47 (1914). We have previously stated the general rule for construing statutes that create an exemption from taxation:

“ ‘ “The ‘universal rule of construction is that exemptions from taxation, whether statutory or constitutional, are to be strictly construed, against the exemption and in favor of the right to tax, and that no person or property is to be exempted unless the intention to exempt such person or property clearly appears in some statute or constitutional provision.’ ” State v. Bridges, 246 Ala. 486, 489, 21 So.2d 316, 317 [ (1945) ], 159 A.L.R. 678.
“‘It has long been the rule in this state that one seeking an exemption from taxation assumes the burden to clearly establish the right. In all cases of doubt as to legislative intention, the presumption is in favor of the taxing power. Title Guarantee Loan and Trust Co. v. Hamilton, 238 Ala. 602, [604,] 193 So. 107, 108 [1940]; Curry v. Reeves, 240 Ala. 14, 15, 195 So. 428, 430 [1940].’ ”

Flav-O-Rich, Inc. v. City of Birmingham, 476 So.2d 46, 48 (Ala.1985) (emphasis added) (quoting Brundidge Milling Co. v. State, 45 Ala.App. 208, 210, 228 So.2d 475, 477 (1969)). See also Brown, 188 Ala. at 169, 66 So. at 47 (stating that a tax exemption must be expressed in “clear and unambiguous terms” and “ought not to be deduced from language of doubtful import. ...”). The taxpayers, therefore, have the burden to “clearly establish” an exemption from ad valorem taxation. Flav-O-Rich, 476 So.2d at 48. However, we will not strictly construe § 23-l-81(d) so as to “defeat or destroy the intent and purpose of the statute, and no strained statutory construction is to be given which would have that effect.” 476 So.2d at 48.

The taxpayers are seeking a tax exemption from a Code section whose subject is not taxation or exemption. Section 23-1-81 is included in Title 23 of the Code, entitled “Highways, Roads, Bridges, and Ferries.” That the Legislature knew how to clearly express a tax exemption within this title is evident by its enactment of § 23-2-153, Ala.Code 1975. In § 23-2-153, the Legislature specifically exempted the Alabama Toll Road, Bridge and Tunnel Authority from taxation. In pertinent part, § 23-2-153 provides that “the authority shall not be required to pay any taxes or assessments upon any toll road, bridge or tunnel project or any property acquired or used by the authority under the provisions of this article or upon the income therefrom.” The Legislature indicated its intent to grant a tax exemption by using the unambiguous, broad language, “any taxes or assessments.” An assessment can be the imposition of taxes on property in relation to the value of the property. See City of Ozark v. Trawick, 604 So.2d 360, 363 n. 2 (Ala.1992) (“The term ‘assessment’ commonly includes the preparation of a list comprising the description of the persons or property liable and an estimate of the value of the property.”). Moreover, § 23-2-153 expressly describes an exemption from taxes upon property, including a bridge. No such language appears in § 23-1-81.

The taxpayers contend that because the Legislature deleted language from § 23-l-81(d) that would have supported the narrow interpretation advanced by the revenue commissioners, § 23-1-81(d) exempts them from ad valorem taxes. The taxpayers are correct that a strong inference is established by the Legislature’s deletion during the legislative process of language in prior versions of the bill amending § 23-l-81(d) that would clearly have narrowed the meaning of the statute to more closely correspond to the interpretation advanced by the revenue commissioners. See Freeman v. Jefferson County, 334 So.2d 902, 904-05 (Ala.1976). The original bill introduced to the Legislature provided that “no further license, tax, or fee may be imposed by any governmental body or agency with respect to the privilege of engaging in the activities licensed.” House Bill 352, Journal of the House of Representatives, State of Alabama, 2000 Regular Session, pp. 640,1484-85,1522,1660. However, the Legislature’s rejection of such language creates only an inference, and for all that appears, the Legislature rejected the language as superfluous. The evidence indicating the Legislature’s rejection of the language was not coupled with more conclusive evidence of the addition or use of language consistent with a clearly stated intention to exempt the taxpayers from the payment of ad valorem taxes. Absent a compelling reason otherwise, we give great weight to the statutory interpretation of the revenue commissioners — the agency charged with the administration of the statute. See Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996) (“in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if the interpretation is reasonable”).

We cannot read into § 23-l-81(d) language the Legislature could easily have included, as it did the plain language used in § 23-2-153. See Noonan v. East-West Beltline, Inc., 487 So.2d 237, 239 (Ala.1986) (“It is not proper for a court to read into the statute something which the legislature did not include although it could have easily done so.”). The text of § 23-l-81(d) does not clearly express the Legislature’s intent to exempt operators of toll roads and toll bridges from ad valorem taxes. For this reason alone, the taxpayers’ contentions must fail. See Flav-O-Rich, 476 So.2d at 48.

Even if we were to view the taxpayers’ failure to shoulder their burden of clearly establishing the right to an exemption as the basis for resorting to rules of construction, the taxpayers fare no better. Section 28 — 1—81(d) provides:

“After a license is issued pursuant to subsection (b) or (c) by a county commission or the State Department of Transportation, no further license of any type from any governmental body or agency, including, but not limited to, a business license, shall be required to construct, own, or operate the toll road or the toll bridge, ferry or causeway and no further license, tax, or fee may be imposed by any governmental body or agency.”

(Emphasis added.) As a rule of statutory construction, we have held that where a clause relating to the same subject matter is repeated throughout an act, each such clause should receive consistent construction. Ex parte Jackson, 625 So.2d 425, 428 (Ala.1992). The two clauses “no further license of any type” and “no further license, tax, or fee” both relate to conditions occurring after a license is issued pursuant to the statute. This is clear because the statute begins with the phrase “[a]fter a license is issued,” and then proceeds to explain the events that can occur only after a license is issued. Because both clauses relate to the same subject matter — events occurring after a license is issued — both should receive consistent construction within the statute. The use of the word “further” in both clauses ties the clauses to the initial event of obtaining a license to construct, own, and operate a toll road or a toll bridge.

The dissenting opinion to the Court of Civil Appeals’ opinion in Patterson, supra, relies upon the rule of statutory construction that provides that where a word, such as “further,” is repeated in a statute, “ ‘ “and in one instance its meaning is definite and clear, and in the other it is susceptible of two meanings, it will be presumed to have been employed in the former sense.” ’ ” Patterson, 856 So.2d at 834 (quoting House v. Cullman County, 593 So.2d 69, 72 (Ala.1992), quoting in turn State v. Skeggs, 154 Ala. 249, 46 So. 268 (1908)). We agree that the first clause, “no further license of any type,” clearly indicates that after a license is obtained, no further license, either additional or existing, is required before one can construct, own, or operate a toll road or a toll bridge. Patterson, 856 So.2d at 833. We disagree, however, with the dissent’s interpretation of the word “further” in the second clause to also mean that the taxpayers are exempt from all future additional taxes as well as those taxes in existence at the time § 23 — 1—81(d) was enacted, such as ad valorem taxes. 856 So.2d at 834. Such an interpretation would require us to define the word “tax” to include both regulatory and revenue taxes.

The taxpayers rely upon this Court’s broad definition of the word “tax” as including all governmental charges, whether revenue or regulatory. See State v. Commercial Loan Co., 251 Ala. 672, 675, 38 So.2d 571, 573 (1949). In this case, however, the broad interpretation of the word “tax” as used in the second clause conflicts with other rules of statutory construction. The principle of “ejusdem gen-eris” provides that “general words, following the enumeration of particular classes of persons or things, are construed to apply only to persons or things of the same general nature or class as those specifically enumerated.” Lambert v. Wilcox County Comm’n, 623 So.2d 727, 731 (Ala.1993); Flav-O-Rich, 476 So.2d at 51 n. 5; Ross Jewelers v. State, 260 Ala. 682, 687, 72 So.2d 402, 405 (1954).

In Lambert, this Court considered whether the phrase, “any other legal entity,” as it is used in the definition of the word “business” in § 36-25-1(1) was broad enough to include county agencies within the definition. 623 So.2d at 731. Section 36-25-1(1) defines “business” as “[a]ny corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, or any other legal entity.” (Emphasis added.) This Court applied the “ejusdem gen-eris” principle and acknowledged that “the enumerated classes of things preceding the general term ‘any other legal entity’ are in the nature of private enterprises, not county governmental agencies.” 623 So.2d at 731. Because the general phrase, “any other legal entity” followed specifically enumerated private enterprises within the statute, this Court concluded that the Legislature did not intend to include county agencies within the definition of “business.” 623 So.2d at 731.

The word “license” is defined as a “certificate or document” evidencing permission “to commit some act that would otherwise be unlawful.” Black’s Law Dictionary 931 (7th ed.1999). Within the scope of § 23-1-81, the word “license” refers to a certificate or document that gives permission to private individuals or entities to construct, own, or operate a private toll road or toll bridge. The word “license” specifically enumerates the entire subject matter of the statute. The taxpayers contend that the word “tax” following the word “license” includes ad valorem taxes. The word “tax,” defined broadly, does include “all governmental impositions on the person, property, privileges, occupations, and enjoyment of the people, and includes duties, imposts, and excises.” Black’s Law Dictionary 1469 (7th ed.1999). However, the words “tax” and “fee” are general terms that follow the specifically enumerated word “license.” Applying the principle of “ejus-dem generis,” because the general words “tax” and “fee” follow the specifically enumerated word “license” within the statute, the words “tax” and “fee” must apply only to the same subject matter as those specifically enumerated by the word “license.” We conclude that the Legislature did not intend to exempt the taxpayers from ad valorem taxes by including the general term “tax” within a statute dealing only with the licensing of private toll roads and toll bridges.

In strictly construing the word “tax,” we also embrace the doctrine of “noseitur a sociis.” See Winner v. Marion County Comm’n, 415 So.2d 1061, 1064 (Ala.1982). This doctrine provides that “where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general.” Winner, 415 So.2d at 1064; State v. Western Union Tel. Co., 196 Ala. 570, 72 So. 99 (1916). The words “license,” “tax,” and “fee” are capable of analogous meaning. In fact, this Court has held that “license fees are commonly called taxes even though strictly speaking they may be a charge or fee rather than a tax.” Commercial Loan, 251 Ala. at 675, 38 So.2d at 574; see Densmore v. Jefferson County, 813 So.2d 844 (Ala.2001). The least general word is a “license” issued for the purpose of constructing, owning, and operating a private toll road or toll bridge. Thus, under the doctrine of “noscitur a sociis,” the words “tax” and “fee” must be restricted to taxes or fees related solely to the licensing of private toll roads or toll bridges. Additional evidence that the words “tax” and “fee” are analogous to the word “license” can be drawn from that portion of the title of Acts No.2000-216 (amending § 23-1-81) referring to the authority “to issue licenses for the establishment and operation of the toll roads [and] toll bridges ...; and to provide that no further tax or fees shall be imposed.” (Emphasis added.) See Jordan v. Reliable Life Ins. Co., 589 So.2d 699, 702 (Ala.1991) (“Clearly, the title of an act may serve as an aid to statutory interpretation”).

By reading the second clause as exempting taxpayers from only those additional and existing licenses, taxes, and fees dealing with the charges associated with the licensing of private toll roads and toll bridges, we can interpret both clauses using a consistent construction within the statute without violating the rule of construction relied on in the dissenting opinion to the Court of Civil Appeals’ opinion. The word “further” as used in both clauses means that the taxpayers are exempt from additional or existing licenses, taxes, and fees associated with the subject matter of the statute — the licensing of private toll roads and toll bridges. To construe the provision as providing a general exemption from ad valorem taxes would change the statute under a guise of construing it — an infringement upon the Legislature’s prerogative.

This narrow construction is buttressed by the fact that we may ascertain the meaning of words by their context. See Sparks v. West Point Mfg. Co., 274 Ala. 102, 103, 145 So.2d 816, 817 (1962); Brown, 188 Ala. at 175, 66 So. at 49 (“what the Legislature intends by the use of a particular word or phrase is to be determined, not merely by the ordinary meaning of the word, but also by its context”); Brock v. City of Anniston, 244 Ala. 544, 549, 14 So.2d 519, 523 (1943) (the meaning of the words in a statute are to be construed within the context of the statute). The context of § 23-1-81 concerns only licensing for private toll roads and toll bridges, and the licenses, taxes, and fees associated with constructing, owning, and operating a toll road or a toll bridge. Therefore, the clauses within the section should be given the definition and construction that is “reasonable and just” when considered in connection with the subject matter of the section — the issuance of a license to establish or to operate private toll roads and toll bridges. See Brown, 188 Ala. at 176, 66 So. at 50.

We recognize that the rules of statutory construction are only aids in ascertaining legislative intent where a statute is ambiguous. See Moore v. City of Mobile, 248 Ala. 436, 440, 28 So.2d 203, 206 (1946). For example, if, upon consideration of the context and the subject matter of a statute, it is clear that the Legislature “intended the general words to go beyond the class specifically designated, the [ejus-dem generis] rule [of statutory construction] does not apply.” 248 Ala. at 440, 28 So.2d at 206. Here, the subject of the entire statute deals only with licensing those who establish or operate toll roads, toll bridges, ferries, and causeways. Nothing in the statute indicates an intention by the Legislature to exempt the taxpayers from ad valorem taxes.

Conclusion

The provision in § 23-l-81(d) that no further tax can be imposed upon a private toll road or toll bridge after it is licensed applies only to taxes dealing with the actual licensing of those who establish or operate private toll roads and toll bridges. We affirm the judgment of the Court of Civil Appeals.

AFFIRMED.

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

MOORE, C.J., concurs in the result.

HOUSTON, BROWN, and WOODALL, JJ., dissent.

HOUSTON, Justice

(dissenting).

I respectfully disagree with the per cu-riam opinion of the Court, and I adopt Judge Thompson’s dissent in Patterson v. Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 826, 829 (Ala.Civ.App.2002), as my dissent.

I authored IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344 (Ala.1992), and DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998); I would be ignoring the holdings of those cases if I did not conclude that the plain and unambiguous language of Ala. Code 1975, § 23-l-81(d), exempts the licensed toll bridges being operated by the taxpayers from ad valorem taxes.

      . In his dissenting opinion, Justice Houston cites IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344 (Ala.1992), and DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998), for the proposition that the plain and unambiguous language of § 23-1-81(d) exempts the taxpayers from the payment of ad valorem taxes. However, neither case deals with a tax exemption. See IMED, 602 So.2d at 346 (interpreting a statute dealing with the misappropriation of trade secrets); DeKalb County LP Gas, 729 So.2d at 276 (interpreting a statute dealing with the enumerated powers of an electric cooperative).
      This Court’s holding in Crim v. Phipps, 601 So.2d 474 (Ala.1992), however, is more closely analogous to the issue now before this Court. In Crim, this Court acknowledged that tax exemptions must clearly appear in a statute or constitutional provision and held that a lease for profit to a religious, educational, or charitable entity was not a use of the property entitling the taxpayer to an exemption as provided by statute or the Alabama Constitution. 601 So.2d at 476-77. See also Ex parte Fleming Foods of Alabama, Inc., 648 So.2d 577, 578 (Ala.1994) (holding that the use tax assessment did not violate the Commerce Clause and stating that “exemptions from taxation are to be strictly construed against the person or party claiming the exemption and in favor of the right to tax”).

      . The word fee is defined as "[a] charge for labor or services.” Black’s Law Dictionary 629 (7th ed.1999).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Garry Ray WINSETT v. Rebecca Borden Winsett WOODWARD.
    2010953.
    Court of Civil Appeals of Alabama.
    Dec. 20, 2002.
    Rehearing Denied March 7, 2003.

      James M. Scroggins of Armstrong, Vaughn & Scroggins, Daphne, for appellant.
    Marion E. Wynne of Wilkins, Bankester, Biles & Wynne, P.A., Fairhope, for appel-lee.
   PITTMAN, Judge.

Garry Ray Winsett (“the former husband”) and Rebecca Borden Winsett Woodward (“the former wife”) were divorced on July 8, 1998. They had two children. The former wife was awarded primary physical custody of the parties’ older daughter, and the former husband was awarded primary physical custody of the parties’ younger daughter. The divorce judgment incorporated the agreement of the parties that waived child support based on the former husband and the former wife each maintaining support for one child. In addition, the agreement ordered the former husband to pay for “the higher education costs, expenses and fees for both children.”

On July 30, 2001, the former wife filed a petition for rule nisi, alleging that the former husband has failed and refused to pay for higher-education costs, expenses, and fees for his older daughter, as ordered in the final divorce judgment. Specifically, the former wife argued that the former husband had a postminority support arrearage of $14,000. On October 2, 2001, the former husband filed an answer. Following a hearing at which ore tenus evidence was presented, the trial court ordered the former husband to pay the former wife $14,000, representing amounts paid for college expenses of the parties’ older daughter. The former husband appealed.

On appeal, the former husband contends that the trial court erroneously ordered him to pay $14,000 in postminority support to the former wife where the amount was composed predominantly of expenses that were far outside the scope of his obligation as stated in the agreement incorporated into the divorce judgment. Specifically, the former husband argues that although the agreement orders him to pay for “the higher education costs, expenses and fees for both children,” this obligation to pay expenses does not include rent, automobile expenses, clothes, telephone fees, or personal living expenses.

It is well settled that when reviewing matters relating to child support, this court will not disturb the trial court’s judgment absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong. Bowen v. Bowen, 817 So.2d 717 (Ala.Civ.App.2001); Payne v. Payne, 806 So.2d 398 (Ala.Civ.App.2001); Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997). Furthermore, “matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong.” Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala.Civ.App.2001).

The trial court heard ore tenus evidence indicating that the older daughter first attended a satellite campus of Faulkner University for two years before transferring to Auburn University to complete her undergraduate degree in education. The first two years of her education were fully paid for through scholarships and grants. Therefore, neither the former husband nor the former wife was responsible for any costs associated with the daughter’s two years at Faulkner University. The daughter then transferred to Auburn University, where she received small grants and took out federal loans for her school expenses. Upon agreement of the parties, the former father placed $800 each month in a non-check-writing account to be used by the daughter for school expenses during her two years at Auburn University. In addition to the monthly $300 payments from her father, the daughter received $800 from her mother which she used to pay for living expenses, car expenses, and medical expenses. (R. 63.)

During her testimony, the daughter presented an itemized spreadsheet of her school expenses for the trial court's consideration. Among the items included in this spreadsheet were tuition fees; book expenses; class-supply expenses; room and board; automobile expenses, including gas, insurance, and repairs; household expenses including all utility expenses; and personal expenses, including clothes and telephone costs. The itemized expenses outlined on the spreadsheet totaled $25,038. After the amount of payments totaling $7,606 made by the former husband were deducted, the outstanding balance on the daughter’s expense spreadsheet totaled $17,432.

The divorce agreement provided for postminority support of the parties’ two children. It is undisputed that the former husband was obligated through this agreement to pay postminority educational support for “the higher education costs, expenses and fees” for both of his children; however, the agreement does not define or outline what those costs, expenses, and fees entail. Therefore, the agreement required interpretation by the trial court because the agreement itself did not define those terms.

A thorough review of the record on appeal and the trial court’s final order reveals that the trial court may have considered the total amount of loans the daughter received to pay for her two years at Auburn University in finding that the former husband owed the former wife $14,000 in postminority-support ar-rearage after having already paid $7,606 toward his daughter’s undergraduate education. In addition, the trial court noted in its order that those loans went to pay for the daughter’s expenses as well as her tuition, books, and fees while she was attending Auburn University. In light of the foregoing, it is clear that the trial court interpreted “higher education costs, expenses and fees” to include automobile expenses, utility bills, moving expenses, clothing costs, telephone costs, and general personal expenses. We conclude that this interpretation is unreasonable and that the trial court’s judgment is due to be reversed.

In Simpkins v. Simpkins, 595 So.2d 493, 494 (Ala.Civ.App.1991), this court considered a postminority-support provision, included in the parties’ divorce judgment, containing specific language stating the “ ‘[hjusband shall pay for the college education of children including tuition, books and their reasonable living expenses.’ ” (Emphasis omitted.) Unlike the postmi-nority-support provision in the instant case, this particular provision specifically provided for living expenses. Relying on this specific language, we upheld the judgment of the court awarding the former wife educational expenses and reasonable living expenses where they were provided for in the divorce judgment. Simpkins, 595 So.2d at 495.

Moreover, this court previously upheld a trial court’s interpretation of “necessary and reasonable education expenses” as expenses incurred for books, fees, tuition, and room and board. Scott v. Scott, 401 So.2d 92, 96 (Ala.Civ.App.1981). In doing so, we found this interpretation to be reasonable because anyone attending college will be required to pay for these expenses. Id. However, in the instant case, the trial court went far beyond those basic expenses and found that every expense incurred by the daughter during her two years at Auburn University was covered under the divorce agreement. We are not willing to say that automobile expenses, clothing costs, telephone costs, and general personal expenses are correctly included within the vague terms of “higher education costs, expenses and fees.” Thus, the trial court abused its discretion in awarding postminority support in the amount of $14,000, beyond the $7,606 already paid by the former husband towards postminority support; this amount far exceeded the amount necessary to cover the “higher education costs, expenses and fees” provided for in the divorce agreement.

Based on the foregoing, we conclude that the trial court erred in interpreting “higher education costs, expenses and fees” to include automobile expenses, household expenses, and personal expenses. Therefore, the trial court’s judgment awarding the former wife $14,000 in postminority support is reversed. On remand, we instruct the trial court to properly recalculate the postminority support due in accordance with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY, J., concurs.

YATES, P.J., and THOMPSON and MURDOCK, JJ., concur in the result.

      . We note that the principles that apply to child support also apply to postminority educational support. Stinson v. Stinson, 729 So.2d 864 (Ala.Civ.App.1998).


author: PER CURIAM. MURDOCK, Judge,

text:
    Robin LEMONS v. STATE of Alabama DEPARTMENT OF FINANCE. State of Alabama Department of Finance v. Robin Lemons.
    2010796.
    Court of Civil Appeals of Alabama.
    March 7, 2003.

      James M. Sizemore, Jr., Montgomery, for appellanVcross-appellee Robin Lemons.
    William H. Pryor, Jr., atty. gen., and Mose Stuart, asst. atty. gen., Department of Finance, for appellee/cross-appellant.
   PER CURIAM.

Robin Lemons appeals and the State of Alabama Department of Finance cross-appeals from the trial court’s modification of a determination of Lemons’s permanent-partial-disability rating by the Department of Finance, through the State Employee Injury Compensation Trust Fund (the Department of Finance and the State Employee Injury Compensation Trust Fund are hereinafter collectively referred to as the “Trust Fund”), and approved by the Trust Fund’s Review Board (“the Review Board”). The trial court modified Lemons’s disability rating from 3% to 30%. Lemons argues that the evidence presented necessitates a finding that she is totally and permanently disabled. The Trust Fund argues that the trial court erred in modifying its determination. We reverse and remand with instructions as to both the appeal and the cross-appeal.

On December 3, 1996, Lemons, an accountant with the Administrative Office of Courts (hereinafter referred to as “AOC”), suffered an injury, which she reported on December 4,1996. In an “Employer’s First Report of Injury or Occupational Disease,” the cause of Lemons’s injury was reported as follows:

“Employee[’s] duties at AOC require!] daily data entry by computer and often for prolonged periods of time. Because of such activity, the employee's right forearm causes her pain on a daily basis.”

Lemons’s injury and the body part affected were described as “[p]ain in the right forearm on a daily basis.” Lemons was sent to Dr. Donald Hodurski for treatment of her injury. Dr. Hodurski initially treated Lemons with injections, stating in his medical records on February 14, 1997, that she “has got a two-fold problem; radial epicondylitis and a true impingement.”

On July 21, 1997, the Trust Fund received the “Employer’s First Report of Injury or Occupational Disease.” On July 24, 1997, Dr. Hodurski performed surgery on Lemons’s right elbow. On October 30, 1997, Dr. Hodurski released Lemons to return to work. After one week Lemons left work because, she said, she was in excessive pain. On December 1, 1997, Dr. Hodurski once again treated Lemons’s elbow with an injection. On January 26, 1998, Dr. Hodurski noted in Lemons’s medical records as follows:

“Robin Lemons is in my opinion ready to go back to work. She states she can’t do anything. She was better; she was better each month. There is no change in the wound. There is no change in swelling. It’s time to let her go. With the degree of discomfort she has most people should be able to do a functional day’s work. I’m certain that she has some pain and problems but I have nothing further to offer, and my recommendation is to return to work.”

After noting that Lemons presented herself with no pain on February 26, 1998, a note entered by Dr. Hodurski on March 26, 1998, stated that Lemons was again experiencing pain. On that same day, Dr. Hodurski determined that Lemons had reached maximum medical improvement and assigned Lemons a 10% impairment rating to her upper right extremity and a 3% impairment rating to her whole body resulting from the injury, without preexisting cause.

On April 17,1998, Lemons sent a memorandum to the Trust Fund seeking a second opinion from another physician, stating that “I am not happy with continuing problems I am experiencing trying to do my job. Although I am still observing ‘light duty,’ I am in considerable pain and unable to cope.” On April 21, 1998, the Trust Fund responded to Lemons’s request and provided her a list of four physicians from which to choose one to see regarding her injury. On April 29, 1998, Lemons chose Dr. Perry Savage; the Trust Fund set an appointment for Lemons to be examined by Dr. Savage. After examining Lemons on May 8, 1998, Dr. Savage noted in his medical records that “I believe she has tennis elbow syndrome. I don’t believe I could relate this directly to work.” He also stated that Lemons “may do regular work. I would not restrict her activities.”

On May 4, 1998, Lemons informed the Trust Fund that she was experiencing symptoms with her left arm similar to those she had experienced with her right arm. On June 10, 1998, the Trust Fund requested that Dr. Thomas Wells perform an independent medical evaluation of Lemons. On July 24, 1998, after an initial examination of Lemons, Dr. Wells noted his impression that Lemons had “[pjersis-tent lateral epicondylitis of the right elbow, status post lateral; release of the extensors of the right lateral epicondyle, beginning lateral epicondylitis of the left upper extremity”; Dr. Wells then began treating Lemons. On October 6, 1998, Dr. Wells performed a second surgery on Lemons’s right elbow. Dr. Wells subsequently released Lemons to return to work.

On September 10, 1999, Dr. Wells informed the Trust Fund that Lemons had reached maximum medical improvement on February 26, 1999, and that she had no permanent partial impairment. Before receiving notice from Dr. Wells that she had reached maximum medical improvement, Lemons began seeing Dr. Roger Kemp and Dr. William Jordan, pain-management specialists. Those physicians were not approved by the Trust Fund; Lemons visited them on her own. On October 15, 1999, Dr. Jordan sent a letter to Lemons’s counsel responding to certain questions Lemons’s counsel had posed to him in an October 7, 1999, letter; in that letter, Dr. Jordan stated, in pertinent part:

“In my opinion, [Lemons’s] pain is genuine. There is a large component of stress and depression which is probably secondary to her pain. It is my understanding that Ms. Lemons[’s] job responsibility is that of preparing a large payroll. I would say there is a relationship between the pain and her work especially if she does data entry work. She has also stated that her bilateral elbow pain preceded her neck and shoulder pain.
“I am at the present time unable to assess her ability to perform her work.”

On December 7,1999, upon a referral by Lemons’s counsel, Dr. Michael McClana-han tested Lemons to determine her vocational-disability rating. On January 20, 2000, Dr. Kemp filed a “Physician’s Report of Disability” with the Board of Control of the Retirement System of Alabama. In this report, Dr. Kemp stated (1) that he had treated Lemons from September 1, 1999, through January 12, 2000; (2) that Lemons had complained of neck and shoulder pain with pain radiating to the arms; (3) that Lemons had cervical radiculitis and bilateral carpal tunnel syndrome secondary to a repetitive-motion injury; and (4) that, in his opinion, Lemons was totally incapacitated for further performance of her work duties, was likely to be ineapaci-tated permanently, and should retire. On January 25, 2000, Lemons’s counsel wrote a letter to the Trust Fund attaching Dr. Jordan’s October 15, 1999, letter and Dr. Kemp’s “Physician’s Report of Disability.” Lemons was subsequently granted disability retirement by the Board of Control of the Retirement System of Alabama; her last day of work was January 31, 2000.

On that same day, Dr. McClanahan issued a vocational-evaluation report; that report contained the following summary:

“In summary, this is a 46-year-old female who has been on the job with [AOC] as a Payroll Clerk since 1985. She has been struggling since December 1996 with upper extremity pain and diminished function, and the question is whether or not she can continue working in any capacity. Quite obviously, based on Ms. Lemonfs’s] attestations, work is not reasonable until such time as her pain has been brought under control. She indicated that she has pain on an ongoing basis in the moderately severe to severe range, particularly when performing tasks that involve the upper extremities. It is noteworthy that virtually all jobs of a sedentary nature (the position of Payroll Clerk is typically sedentary, though it may not be in this specific case) require extensive use of the upper extremities. It is my opinion that Ms. Lemons needs extensive pain management services, possibly to include psychological assessment and treatment. Her Vocational Disability Rating is 100%.”

The only medical records Dr. McClana-han reviewed in making his evaluation were those of Dr. Kemp. Dr. McClana-han specifically mentioned Dr. Kemp’s “Physician’s Report of Disability” to the Retirement System’s Board of Control, in which Dr. Kemp diagnosed Lemons with cervical radiculitis and bilateral carpal tunnel syndrome secondary to repetitive-motion injury and in which Dr. Kemp found that Lemons would likely be permanently incapacitated. On February 11, 2000, Lemons’s counsel wrote the Trust Fund, attaching Dr. McClanahan’s vocational-evaluation report and seeking favorable consideration of Lemons’s claim that she had a “100% job related disability.”

The Trust Fund subsequently denied Lemons’s claim that she was 100% disabled. On March 27, 2000, Lemons’s counsel wrote the Trust Fund requesting a review of its decision by the Review Board. On April 6, 2000, the Trust Fund wrote Lemons’s counsel acknowledging its receipt of her request for a Review Board hearing. On July 11, 2000, the Review Board conducted a hearing to review the Trust Fund’s denial of Lemons’s claim. Counsel for both Lemons and the Trust Fund argued their positions to the Review Board. Lemons was the only witness to testify at the hearing. During the hearing, one of the members of the Review Board asked whether the Trust Fund had assigned Lemons a vocational-disability rating. A representative of the Trust Fund replied as follows:

“No, because she — Dr. Wells put it in with no restrictions and no impairment rating so she wasn’t entitled to a vocational[-disability] rating with [the Trust Fund].
“When an employee is released to return to work full duty with no restrictions, or if they have restrictions and the agency can accommodate the restrictions, then they’re not entitled to a vocational[-disability] rating. A vocational[disability] rating is when an employee is terminated due to a work-related injury, that’s when we step in with a vocational[-disability] rating. So she was not entitled to one.”

On July 17, 2000, the Review Board issued a decision; it stated, in pertinent part:

“SUMMARY
“The Claimant’s counsel introduced a report by Michael C. McClanahan, Ph. D., a vocational specialist, asserting that the Claimant had a 100% job related disability due to the fact that she could no longer perform her job due to pain. Two non-[Trust Fund] physicians, Drs. Kemp and Jordan, who are pain management specialists, determined the Claimant’s pain was genuine and that there was a relationship between the pain and her work.
“The Claimant testified that when she requested a second opinion after treatment by Dr. Hodurski, she had not been informed that Dr. Hodurski had assigned a medical impairment rating.
“The [Trust Fund’s] counsel argued that three orthopedic surgeons had determined the Claimant could return to her job. While the first of these to treat the Claimant’s right arm injury found a 10%-3% medical impairment, the surgeon she chose for a second opinion found no disability. Likewise, the third orthopedic surgeon who treated her left arm determined that she had no medical impairment.
“CONCLUSION
“The rules permit [the Trust Fund] to direct claimants to specific medical care providers. The Claimant was ultimately treated by three [Trust Fund]-approved orthopedic surgeons, two of whom found no medical impairment and returned the Claimant to work without restrictions. The first of the three surgeons to treat the Claimant, Dr. Hodurski, determined the Claimant had a medical impairment of 10% to the extremity, 3% to the body. While the Claimant then requested a second opinion, she testified at the hearing that she had not been informed at the time of her request that a medical impairment rating had been assigned. That testimony was not rebutted. While the knowledge of the medical impairment rating may or may not have made a difference in the Claimant’s decision to request a second opinion, she should have had the benefit of the information.
“The Review Board finds that it is appropriate for [the Trust Fund] to rely on the judgment of its approved physicians, and that the medical record does not support the claim of 100% vocational disability. The Review Board directs that the Claimant be awarded the benefits appropriate to Dr. Hodurski’s finding of 10% impairment to the extremity, 3% to the body, whichever is the larger benefit.”

On August 16, 2000, Lemons filed a “Notice of Appeal or Review” in the trial court pursuant to § 41-22-20, Ala.Code 1975. On August 18, 2000, Lemons filed a “Petition for Review” arguing, in pertinent part, as follows:

“7. The decision of the Review Board is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Indeed, the uncon-tradicted evidence is that [Lemons] suffered a physical injury that totally incapacitates her from working at and being retrained for gainful employment.
“8. The decision of the Review Board is unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion, in that it ignored uncontradict-ed evidence that [Lemons’s] vocational disability rating was 100%.”

On February 2, 2001, on Lemons’s motion, the trial court remanded the case for the Review Board to consider a September 7, 2000, ruling by an administrative law judge for the Social Security Administration’s Office of Hearings and Appeals that Lemons was disabled within the meaning of the Social Security Act. On April 19, 2001, the Review Board issued a decision stating that it had reviewed the administrative law judge’s ruling, but that that ruling did not change its findings.

On June 19, 2001, Lemons filed a brief in support of her petition; the Trust Fund filed a responsive brief on July 3, 2001. On March 27, 2002, the trial court entered an order stating findings of fact mostly consistent with the facts previously set out in this opinion and additionally stating, in pertinent, the following conclusions of law:

“CONCLUSIONS OF LAW
“1. [The Trust Fund] was established by the legislature by Acts of Alabama, No. 94-680 and was codified as § 36-29A-1 et seq., Code of Alabama 1975.
“2. The legislature empowered the Director of Finance ‘to implement a program to provide compensation for employees of the state and its agencies, departments, boards or commissions who suffer personal injury as a result of accidents arising out of and in the course of their state employment, under such terms and conditions as the Director of Finance shall determine.’ Section 36-29A-1. (Emphasis added [by the trial court].)
“3. The Director of Finance promulgated rules to govern the operation and administration of the injury program, which rules are found at 355-8-1.01 et seq. of the Administrative Code.
“4. Under the statute establishing the [Trust Fund] program, the program ‘is not governed by or subject to the provisions of ... the Alabama Workers’ Compensation Law.’ See § 36-29A-4, Code of Alabama 1975.
“5. Under the terms and conditions of [the Trust Fund], benefits under the program are payable only for those whose medical condition arose out of and in the course of their employment. See, e.g., 355-8-1.04(a)(4)d.
“6. Ms. Lemons’s right elbow condition, under the definitions provided by [the Trust Fund] was not considered an injury nor did it result from an accident; it was more in the form of occupational disease, as defined by [the Trust Fund]. Consequently, the burden of proof imposed upon Ms. Lemons is not ‘by a preponderance of the evidence’ but rather ‘by clear and convincing evidence.’ See 355-8-1.04(w).
“Based on the facts and evidence of this case, it is hereby ORDERED, ADJUDGED, AND DECREED that the decisions rendered by the ... Review Board, both the original and the decision on remand, are hereby MODIFIED as follows:
“1. The Court finds that Ms. Lemons is entitled to a permanent partial disability rating of 30%.”

On May 9, 2002, Lemons filed a notice of appeal to this court; on May 15, 2002, the Trust Fund filed notice of its cross-appeal.

On appeal, Lemons argues (1) that the Review Board erred by ignoring the un-contradicted evidence of her 100% vocational-disability rating and by basing its award solely on Dr. Hodurski’s medical-impairment rating, and (2) that the trial court, while correctly determining that the Review Board’s decision was improper, also erred by awarding only a 30% disability rating in view of the uncontradicted evidence of her 100% vocational-disability rating. In its cross-appeal, the Trust Fund argues (1) that the record supports the Review Board’s decision, asserting, in part, that Lemons failed to utilize the Trust Fund’s rules to obtain reconsideration of her vocational-disability rating, (2) that the trial court erred by substituting its judgment for that of the Review Board when it modified the Review Board’s decision to state that Lemons had a 30% permanent-partial-disability rating, and (3) that it failed to provide specific reasons to support its modification, pursuant to § 41-22-20(0, Ala.Code 1975.

This court has stated the applicable standard of review as follows:

“This court reviews a trial court’s judgment regarding the decision of an administrative agency ‘without any presumption of its correctness, since [the trial] court was in no better position to review the [agency’s decision] than’ this court. State Health Planning & Res. Dev. Admin. v. Rivendell of Alabama, Inc., 469 So.2d 613, 614 (Ala.Civ.App.1985). Under the Alabama Administrative Procedure Act (‘AAPA’), § 41-22-1 et seq., Ala.Code 1975, which governs judicial review of agency decisions,

“ ‘[ejxcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action, equitable or legal, including declaratory relief, if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“ ‘(1) In violation of constitutional or statutory provisions;
“ ‘(2) In excess of the statutory authority of the agency;
“ ‘(3) In violation of any pertinent agency rule;
“ ‘(4) Made upon unlawful procedure;
“ ‘(5) Affected by other error of law;
“ ‘(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“ ‘(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.’
“ § 41-22-20(k), Ala.Code 1975.... In reviewing the decision of a state administrative agency, ‘[t]he special competence of the agency lends great weight to its decision, and that decision must be affirmed, unless it is arbitrary and capricious or not made in compliance with applicable law.’ Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993).... Neither this court nor the trial court may substitute its judgment for that of the administrative agency. Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). ‘This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.’ Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989). Further, ‘an agency’s interpretation of its own rule or regulation must stand if it is reasonable, even though it may not appear as reasonable as some other interpretation.’ Sylacauga Health Care Ctr., Inc. v. Alabama State Health Planning Agency, 662 So.2d 265, 268 (Ala.Civ.App.1994).”

Colonial Mgmt. Group, L.P. v. State Health Planning & Dev. Agency, 853 So.2d 972, 974-75 (Ala.Civ.App.2002)(em-phasis omitted).

Lemons argues that the Review Board erred by ignoring the uncontradicted evidence of her 100% vocational-disability rating assigned to her by Dr. McClanahan and by determining her permanent-partial-disability rating solely on the medical-impairment rating assigned by Dr. Hodurski. The Trust Fund argues that Lemons failed to petition the Review Board to reconsider her claim based upon her vocational-disability rating. The rule relied upon by the parties to make their respective arguments is Ala. Admin. Code (Dep’t of Finance) Rule 355-8-l-.04(a)(3)i. That rule states:

“i. Return to Work. — If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Rule .04(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the program shall not consider any evidence of vocational disability. Notwithstanding the foregoing, if the employee has lost his or her employment under circumstances other than any of the following within a period of time not to exceed 300 weeks from the date of injury, an employee may petition the Review Board within two years thereof for reconsideration of his or her permanent partial disability rating:
“(i) The loss of employment is due to a labor dispute still in active progress in the establishment in which he or she is or was last employed. For the purpose of this section only, the term ‘labor dispute’ includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of person in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his or her employer.
“(ii) The loss of employment is voluntary, without good cause connected with such work.
“(iii) The loss of employment is for a dishonest or criminal act committed in connection with his or her work, for sabotage, or an act endangering the safety of others.
“(iv) The loss of employment is for actual or threatened misconduct committed in connection with his or her work after previous warning to the employee.
“(v) The loss of employment is because a license, certificate, permit, bond, or surety which is necessary for the performance of such employment and which he or she is responsible to supply has been revoked, suspended, or otherwise become lost to him or her for a cause.
“The burden of proof is on the employer to prove, by clear and convincing evidence, that an employee’s loss of employment was due to one of the causes (i) through (v) above. At the hearing, the Review Board may consider evidence as to the earnings the employee is or may be able to earn in his or her partially disabled condition, and may consider any evidence of vocational disability. The fact the employee had returned to work prior to his or her loss of employment shall not constitute a presumption of no vocational impairment. In making this evaluation, the Review Board shall consider the permanent restriction, if any, imposed by the treating physician under Rule .04(p), as well as all available reasonable accommodations that would enable the employee in his or her condition following the accident or onset of occupational disease to perform jobs that he or she in that condition otherwise would be unable to perform, and shall treat an employee able to perform with such accommodation as though he or she could perform without the accommodation.”

It is undisputed that Lemons lost her employment within 800 weeks of her injury by virtue of her receiving disability retirement. While her loss of employment was voluntary, we conclude that it was for good cause. Furthermore, in regard to the Trust Fund’s argument that Lemons failed to petition the Review Board to reconsider her claim in light of her vocational-disability rating, we conclude that it was unnecessary for Lemons to petition the Review Board to reconsider something that it had failed to consider in the first instance. At the time of the Review Board hearing, Lemons had already lost her employment and the results of Dr. McClana-han’s vocational evaluation were before the Review Board for its consideration. Therefore, the Trust Fund representative’s response to the Review Board when asked whether a vocational-disability rating had been assigned (i.e., that Lemons was not entitled to one because she had returned to work) was incorrect. Accordingly, the Review Board should have considered her vocational-disability rating when it determined her permanent-partial-disability rating.

While the Review Board’s decision stated that Lemons’s 100% vocational-disability rating was not supported by the medical evidence, it failed to determine what vocational-disability rating the evidence did support. The Review Board’s determination of Lemons’s permanent-partial-disability rating based solely on Dr. Hodurski’s medical-impairment rating was therefore erroneous. While we note that Dr. McClanaharis vocational evaluation was made after reviewing the medical records of only Dr. Kemp, who had diagnosed Lemons with disabling injuries other than her work-related injury in recommending that she receive disability retirement, that was the only vocational-disability rating before the Review Board. The Review Board should have determined what portion of Dr. McClanaharis assigned vocational-disability rating could be attributed to Lemons’s work-related injury.

We therefore conclude that the Review Board should have considered Dr. McClanaharis vocational-evaluation report. Further, because the Review Board sat as the initial fact-finder in this case, it would be more appropriate to allow it the opportunity to weigh the evidence presented in the record, giving full consideration to Dr. McClanaharis vocational-evaluation report. While § 41-22-20(k), Ala.Code 1975, could reasonably be interpreted to permit the trial court to modify the Review Board’s decision in this case, we conclude that the better practice would be to remand this case to the Review Board because that section also provides that a “court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” See also 2 Am.Jur.2d Administrative Law § 531 (1994)(“A reviewing court, having determined that an administrative agency did not consider all relevant factors, should ordinarily remand the matter to the agency rather than compensating for the agency’s oversight by launching a judicial inquiry into the merits.”), and 2 Charles H. Koch, Jr., Administrative Law and Practice § 8.31 (2d ed.1997), (“Traditionally, courts performing a review function under a statutory petition for review or other form of proceeding rely heavily on some form of remand. ... Remand allows for correction while still maintaining the proper allocation of responsibility between the courts and the agencies”).

Accordingly, we reverse the trial court’s judgment insofar as it modified the decision of the Review Board, and we remand the cause for the trial court, in turn, to remand to the Review Board for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, J., concurs in the result.

MURDOCK, J., concurs in the result in part and dissents in part.

MURDOCK, Judge,

concurring in the result in part and dissenting in part.

While I do not agree fully with the majority’s reasoning, I concur in the result reached by the majority insofar as it remands this cause for further consideration by the administrative agency. I dissent, however, as to the instruction to be given the administrative agency on remand.

I concur to remand this cause because I agree that the evidence of Lemons’s vocational impairment should have been considered. However, while the majority states that it would be “better practice” to remand this cause to the Review Board of the State Employee Injury Compensation Trust Fund (the “Review Board”), I am of the opinion that the cause must be remanded to the circuit court for remand, in turn, to the Review Board for the Review Board to consider evidence of Lemons’s vocational impairment.

Section 86-29A-8, Ala.Code 1975, provides for a determination of disputes by the Review Board. Section 36-29A-4, Ala. Code 1975, provides that a final determination by the Review Board shall be subject to review by the Montgomery Circuit Court in a manner prescribed by the Alabama Administrative Procedure Act (“AAPA”), § 41-22-1 et seq., Ala.Code 1975. The fact-finder in the present case, therefore, was the Review Board. If that fact-finder failed to consider competent evidence, unless the circuit court or this court can determine as a matter of law the correct outcome based on a consideration of that evidence, the proper course is to remand the cause to the fact-finder for consideration of that evidence and the weighing thereof with and against the other evidence of record, including evidence received by the fact-finder ore tenus. See § 41-22-20(k), Ala.Code 1975; see also § 41-22-20®, Ala.Code 1975. “When there is a conflict in the testimony, it is the duty of the trier of fact, in this instance, the administrative hearing officer, to resolve that conflict.” Alabama Dep’t of Public Health v. Perkins, 469 So.2d 651, 653 (Ala.Civ.App.1985). See also Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993) (neither this court nor the trial court may substitute its judgment for that of the administrative agency); 2 Am.Jur.2d Administrative Law § 531 (1994).

With respect to the instruction in the majority opinion that the Review Board should conduct further proceedings “consistent with this opinion,” 856 So.2d at 857, I note that that opinion states that, while “Dr. McClanahan’s vocational evaluation was made after reviewing the medical records of only Dr. Kemp, ... that was the only evidence of vocational disability before the Review Board.” 856 So.2d at 856. I disagree with the latter statement in two respects. First, as reflected elsewhere in the majority opinion, Dr. McClanahan’s vocational evaluation was based not only on Dr. Kemp’s medical records, but also on testing and an interview which Dr. McCla-nahan, himself, conducted. 856 So.2d at 850. Second, and more importantly, I do not agree that Dr. McClanahan’s vocational-evaluation report was “the only evidence of vocational disability” before the Review Board. 856 So.2d at 856.

Lemons herself, as well as Dr. Kemp and Dr. Jordan, provided evidence probative of Lemons’s vocational disability. With respect to Lemons’s testimony, I note that

“ ‘[a]n injured employee’s own subjective complaints of pain are legal evidence which may support a finding of disability.’ Jim Walter Resources, Inc. v. Budnick, 619 So.2d 926, 927 (Ala.Civ.App.1993). Further, ‘[t]he [fact-finder] is afforded much discretion in determining an employee’s loss of earning capacity and may consider such factors as the age, education, and work history, as well as the effect of the injury on the employee’s earning ability.’ M & H Valve Co. v. Carmichael, 607 So.2d 224, 226 (Ala.Civ.App.1991).”

Asplundh Tree Expert Co. v. Latham, 656 So.2d 839, 841 (Ala.Civ.App.1995) (considering an employee’s vocational-disability rating under the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, in light of the employee’s own testimony regarding her pain and restrictions). See also Jackson v. Dunlop Tire & Rubber Corp., 487 So.2d 940 (Ala.Civ.App.1986) (including consideration of an employee’s own testimony as to loss of use of a leg in determining the extent of the employee’s disability under the Workmen’s Compensation Act); Ellenburg v. Jim Walter Res., Inc., 680 So.2d 282 (Ala.Civ.App.1996) (noting that a trial court properly considers a claimant’s pain in the context of a vocational-disability determination under the Workers’ Compensation Act).

As this court stated in Fryfogle v. Springhill Memorial Hospital, Inc., 742 So.2d 1255 (Ala.Civ.App.1998), with respect to a trial court’s finding as to the extent of disability under the Alabama Workers’ Compensation Act:

“It is the duty of the [fact-finder] to make some determination as to the extent of disability. In making the determination, the [fact-finder] must consider all the evidence, including its own observations, and interpret it to its own best judgment. [The appellate court] is precluded from weighing the evidence presented before the [fact-finder].”

742 So.2d at 1258 (citations omitted). Because the Review Board is obligated to consider all evidence of vocational impairment, I disagree with the indication in the majority opinion that the error in this case can be cured on remand merely by considering Dr. McClanahan’s vocational-evaluation report.

      . The Trust Fund does not challenge the com-pensability of Lemons’s injury.

      . This was stated by counsel for the Trust Fund during the hearing before the Review Board and supported by an August 17, 1998, letter from the Trust Fund's medical-benefits manager to Dr. Hodurski. The record before the Review Board contains no medical records from Dr. Hodurski containing an assignment of those impairment ratings. Counsel for the Trust Fund also stated that the assignment of those impairment ratings was confirmed in a June 19, 1998, letter from Dr. Hodurski. That letter also does not appear in the record before the Review Board. At the hearing, Lemons testified that she was never made aware of the impairment ratings Dr. Hodurski had assigned her.

      . When questioned about this during the hearing before the Review Board, Lemons testified as follows:
      "Q. And then you, on your own, went to see Dr. Kemp and Dr. Jordan, correct?
      "A. I had to get some relief.
      “Q. You weren’t — they weren’t panel doctors that were chosen ..., were they? [The Trust Fund] didn’t give you those doctors to go to, did they?
      "A. I was told that until we received the [maximum medical improvement] form from Dr. Wells there was nothing else that could be done as far as [the Trust Fund] was concerned.
      "Q. Okay. And my question is, you went to those doctors on you own, correct?
      "A. I had no choice.”

      . The majority cites to 2 Charles H. Koch, Jr., Administrative Law & Practice § 8.31 (2d ed.1997), referencing in part that treatise’s statement that ”[r]emand allows for correction while still maintaining the proper allocation of responsibilities between the courts and the [administrative] agencies.” That same source, quoting Whittington v. Merit Systems Protection Board, 80 F.3d 471, 476 (Fed.Cir.1996), observes:
      " ‘The Board failed to make relevant factual findings or apply the appropriate statutory and regulatory law.... As a result, we can neither reverse nor affirm the Board's decision because either action would require us to apply law the Board did not consider to facts the Board did not consider; such complete de novo review is not our proper role and would deprive the parties of the process they are due. Therefore, we vacate and remand for further proceedings consistent with this opinion.' "
      Elsewhere in the same treatise, the author states as follows:
      “Remand is the proper remedy where the court doubts that the agency has properly exercised its discretion but recognizes that it is the agency which should exercise that discretion and not the court. If a reviewing court finds that the record does not support the agency's conclusions, it may not conduct a de novo inquiry but must remand to the agency for additional investigation and explanation. Where the court finds that the agency has not presented a legally sufficient basis for its decision, the proper remedy is remand. ‘Normally, when a court of appeals concludes that any agency's decision is not adequately supported, it remands so that the agency may enlarge the record or apply correct legal principles to the existing record.’ ”
      2 Charles H. Koch, Jr., Administrative Law & Practice § 8.31 [l](a) (2d ed. Supp.2002)(emphasis added; quoting Board of Trade of City of Chicago v. S.E.C., 187 F.3d 713, 725-26 (7th Cir.1999)).