author: YATES, Presiding Judge. CRAWLEY, Judge, MURDOCK, Judge,

text:
    Ex parte STATE DEPARTMENT OF REVENUE. (In re State Department of Revenue v. Wyatt Oil Company, Inc., et al.)
    2011280.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1021996.

      William H. Pryor, Jr., atty. gen., Ron Bowden, chief counsel and asst. atty. gen., and David E. Avery III, asst, counsel and asst. atty. gen., for petitioner Department of Revenue.
    James M. Sizemore, Jr., Montgomery, for respondents.
   YATES, Presiding Judge.

The State Department of Revenue (“the Department”) seeks to have set aside the trial court’s order striking the names of Wyatt Brothers Oil Company, Inc.; Wyatt Brothers Enterprises, a partnership; John R. Wyatt; and Charles Wyatt from a notice of lis pendens on real property located in Baldwin, Greene, Hale, Jefferson, and Tuscaloosa counties.

On November 13, 1993, a final order was entered by an administrative law judge in favor of the Department, assessing a wholesale-oil license tax, a gasoline tax, a lubricating-oils tax, and motor-fuel tax against Wyatt Oil Company, Inc., in the amount of $650,495.70. When the Department attempted to collect on liens “upon all property and rights to property, whether real or personal, tangible or intangible, belonging to [Wyatt Oil Company],” it discovered that in 1991 Wyatt Oil Company had ceased to operate as a business or own assets.

On March 22, 1995, the Department sued Wyatt Oil Company, Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and Charles Wyatt under the Alabama Uniform Fraudulent Transfer Act, § 8-9A-1 et seq., Ala.Code 1975. The Department alleged that certain transactions, transfers, and relationships between the defendants were made to hinder, delay, or defraud the Department from collecting the taxes assessed against Wyatt Oil Company in 1993.

In 1996, Wyatt Oil Company filed a petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code. The petition was dismissed by the bankruptcy court. Wyatt Oil Company appealed, and the federal district court, in 1999, determined that the dismissal was appropriate on three grounds: (1) that Wyatt Oil Company had allegedly violated certain environmental laws and it would be impossible for any bankruptcy trustee to manage Wyatt Oil Company’s site in compliance with state and federal law — for example, the existence of the automatic stay in bankruptcy would permit Wyatt Oil Company to impede the clean-up operations of the site required by state and federal law; (2) that Wyatt Oil Company had no assets with which to liquidate debt, and, therefore, this was a bad-faith bankruptcy filing by a corporate shell to avoid state-court litigation; and (3) that the interests of creditors and debtors would be better served by allowing the state courts to proceed with pending suits against Wyatt Oil Company.

The Department’s 1995 fraudulent-transfer action was removed from the administrative docket to the trial docket in 1999. The parties proceeded with discovery. On June 14, 2001, the Department filed a notice of lis pendens ■ as to real property owned by Wyatt Oil Company, Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and/or Charles Wyatt. On February 14, 2002, the defendants filed a “Motion For Immediate Relief From Notice of Lis Pen-dens Filed by Plaintiffs,” seeking to lift the lis pendens as to Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and Charles Wyatt, because no lien had been filed against any of those persons or entities. The trial court held a hearing on the motion, at which the defendants argued that the Department is nothing more than a potential judgment creditor of Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and Charles Wyatt and that, therefore, the Department did not have a basis for filing a notice of lis pendens against any person or entity other than Wyatt Oil Company. The defendants contended that the lis pen-dens notice was preventing the sale of two pieces of property owned by Wyatt Brothers Enterprises and was preventing a lease agreement concerning gasoline stations owned by the defendants other than Wyatt Oil Company. The Department argued that it was trying to protect its interests because, it argued, the defendants were trying to sell properties that could be subject to the tax lien against Wyatt Oil Company if fraudulent conveyances of those properties were proven. The Department contended that this was “one of the first fraudulent-conveyance, pierce the corporate veil cases that the Department of Revenue ha[d] done,” and that it does not file a notice of lis pendens “as a matter of course.” The trial court granted the defendants’ motion, and the Department filed a notice of appeal.

The threshold inquiry is whether the Department’s appeal is properly before this court. The Department argues that the trial court’s order requiring the Department to strike certain names from the lis pendens notice is in the nature of an injunction because the Department is being required “to perform an affirmative act and [the court is] mandating a specified course of conduct.” A preliminary injunction is not a final judgment; nonfinal orders or judgments generally will not support an appeal. Watchous v. North Creek Baptist Church, 706 So.2d 1259 (Ala.Civ. App.1997), citing Robinson v. Computer Servicenters, Inc., 360 So.2d 299 (Ala.1978). However, an interlocutory order granting an injunction is appealable. Seymour v. Buckley, 628 So.2d 554 (Ala.1993). Nevertheless, the striking of names from the lis pendens notice in the present case is not in the nature of an injunction. Our supreme court has treated an order striking a lis pendens as an interlocutory order. Whitehurst v. Peak, 819 So.2d 611 (Ala. 2001). In Whitehurst, the defendants appealed from an order holding that the defendants did not have the authority to rent certain condominiums, denying a continuance, and striking a lis pendens notice. The supreme court issued an order directing the trial court to comply with Rule 54(b), Ala. R. Civ. P.; to adjudicate the remaining claims; or to do nothing, in which case the appeal would be dismissed as from a nonfinal judgment. In response to the supreme court’s order, the trial court found that the defendants had no ownership interest in the real property and made that order final pursuant to Rule 54(b). 819 So.2d 614-15. The defendants appealed again, and the supreme court determined that the trial court’s order was a final judgment as to a wholly different matter than the issues raised in the original appeal. The court stated, “[B]ecause none of the issues from the [original] appeal ... have been certified as final, they remain interlocutory orders and ‘[a] nonfi-nal judgment will not support an appeal .... ’ Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999).” 819 So.2d at 615. See also Orange County v. Hongkong & Shanghai Banking Corp., 52 F.3d 821 (9th Cir.1995)(appeal dismissed because the order expunging a lis pendens is not the functional equivalent of an injunction and, therefore, not immediately appealable).

Rather than dismiss the Department’s appeal in this case, we choose to treat it as a petition for a writ of mandamus. In Ex parte Wallace & Wallace Chemical & Oil Corp., 417 So.2d 940 (Ala.1982), the supreme court issued a writ of mandamus and a writ of prohibition where the trial court did not have the authority ex mero motu to instruct a party to file a pleading that challenged the legality of a property deed and where the trial court was likewise without the authority to order the filing of a lis pendens.

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

The Department contends that it can file a notice of lis pendens to give prospective purchasers of property from a taxpayer’s nominee or alter ego notice of a pending but undecided claim to attempt to enforce a tax lien against the nominee or alter ego. This is an issue of first impression in Alabama.

The Department’s lien against Wyatt Oil Company is a tax lien. A tax lien for any tax, other than an ad valorem tax, attaches to “all property and rights to property, whether real or personal, tangible or intangible, belonging to such person” liable for payment of the tax. § 40-29-20, Ala. Code 1975. A person is defined as “[a]ny individual, association, estate, trust, partnership, corporation, or other entity of any kind.” § 40-1-1(8), Ala.Code 1975.

Section 35-4-131(a), Ala.Code 1975, provides:

“(a) When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land, or where an application has been made to the probate judge of any county for an order of condemnation of land, or any interest therein, the person, corporation or governmental body commencing such action or proceeding or making such application shall file with the judge of probate of each county where the land or any part thereof is situated a notice containing the names of all of the parties to the action or proceeding, or the persons named as those having an interest in the land in the application for an order of condemnation, a description of the real estate and a brief statement of the nature of the lien, writ, application or action sought to be enforced.”

(Emphasis added.)

Section 35-4-131(a) requires a notice of lis pendens to be filed with the probate judge in the county where the real property lies in civil actions seeking “to enforce any lien upon, right to or interest in, or to recover any land,” and in actions where there is an “order of condemnation.” The notice must contain the names of all the persons to the action or proceeding, or the persons named as those having an interest in the land; a description of the real property; and a brief statement of the nature of the lien, writ, application or action, sought to be enforced. Section 35-4-132 provides that when a sheriff executes a levy on real property, he shall file a notice of the levy with the probate judge of the county where the real property is located.

Section 35-4-135 protects bona fide purchasers of real property if the notice required in § 35^1-131 or § 35-4-132 is not recorded, unless that person has actual notice of the action, proceeding, levy, or application. The predecessor to § 35^1-135 provided:

“If a person beginning any suit affecting, or if any officer, levying any process upon real estate, shall fail to have the required notice entered in the lis pen-dens record, such suit or levy shall not affect the rights of a bona fide purchaser, mortgagee, or other lienee, of such real estate unless they have actual notice of the suit or levy.”

Title 47, § 69, Ala.Code 1940 (Recomp. 1958). This language had remained virtually unchanged since the enactment of Act No. 77, Ala. Gen. Acts 1915. In 1971, the Legislature amended the statute, omitting the language “any suit affecting” and instead referring to § 66 and § 67, Title 47, Ala.Code 1940 (Recomp. 1958), the predecessors to § 35-4-131 and § 35-4-132. Section 35-4-131 is specifically limited to actions to “enforce any lien upon, right to, or interest in, or to recover any land,” and condemnation proceedings.

“The sole purpose of a lis pen-dens notice is to afford notice to a bona fide purchaser who might purchase the property during the pendency of the action.” Scott v. Hales, 575 So.2d 1058, 1060 (Ala.1991), citing Batson v. Etheridge, 239 Ala. 535, 195 So. 873 (1940). Although a lis pendens is only a notice of the pending litigation affecting title to real property, “it renders title unmarketable and therefor[e] effectively prevents the property’s transfer until the litigation is resolved or the lis pendens is expunged.” Kerns v. Kerns, 53 P.3d 1157, 1164 n. 6 (Colo.2002).

We note that in Alabama a notice of lis pendens is filed without a hearing and without having to meet any burden of proof as to the authenticity of the claim to the real property. § 35-4-131(a), Ala.Code 1975. Once the notice of lis pendens is filed, the probate judge must record the notice in the lis pendens record. § 35-4-131(a), Ala.Code 1975.

The Department cites Okuda v. Superior Court of Riverside County, 144 Cal. App.3d 135, 192 Cal.Rptr. 388 (1983), in support of its position that it is entitled to file a notice of lis pendens as to property owned by each defendant. In Okuda, the plaintiffs entered into a contract with the defendants to purchase a house. The plaintiffs moved into the house and made numerous improvements, but later discovered that the defendants had never transferred title to the property to them. The plaintiffs sued, alleging breach of contract, fraud, and negligence, and seeking an equitable lien upon the real property, pursuant to the California “good-faith improver” statute, to secure the payment of an amount equal to the cost of the improvements they had made to the property. The plaintiffs recorded a lis pendens notice, which the trial court ordered expunged on the ground that the action did not concern or affect the title to or possession of land. The appeals court noted that under the good-faith improver statute, which applies to improvers who acted under the good-faith belief that they owned the land in question, the trial court has broad discretion in selecting equitable relief. That equitable relief could include the use of equitable liens, and, therefore, in an action brought under the good-faith improver statute, the court could impose an equitable remedy that could affect the title to or the right of possession of the improved property. “Hence, on the basis of their claim for relief under [the good-faith improver statute], the [plaintiffs] were clearly entitled as a matter of law to record a lis pendens against the subject real property.” 144 Cal.App.3d at 140, 192 Cal.Rptr. at 391. The appeals court issued a writ of mandamus ordering the trial court to vacate its order expunging the notice of lis pendens.

Other California appellate courts have declined to follow Okuda. See Wardley Dev., Inc. v. Superior Court of Los Angeles County, 213 Cal.App.3d 391, 262 Cal. Rptr. 87 (1989)(ereditor’s suit to satisfy a money judgment on a commercial transaction unrelated to real property by establishing an equitable-lien interest against the real property did not “affect title” to that real property within the meaning of the lis pendens statute and, therefore, property owner’s petition for a writ of mandamus directing the trial court to expunge the lis pendens notice was due to be granted); Urez Corp. v. Superior Court of Los Angeles County, 190 Cal.App.3d 1141, 235 Cal.Rptr. 837 (1987)(lis pendens notice recorded by party in cause that was essentially a fraud action seeking money damages with additional allegations seeking equitable remedies of a constructive trust or equitable lien was expunged because the party did not claim any ownership interest in the real property but rather sought creation of a beneficial interest in property for the purpose of securing payment of money owed to him). In La Paglia v. Superior Court of San Diego County, 215 Cal.App.3d 1322, 264 Cal.Rptr. 63 (1989), a California appellate court stated:

“In California, a notice of lis pendens gives constructive notice that an action has been filed affecting title or right to possession of the real property described in the notice. Any taker of a subsequently created interest in that property takes his interest subject to the outcome of that litigation.
“While the lis pendens statute was designed to give notice to third parties and not to aid plaintiffs in pursuing claims, the practical effect of a recorded lis pendens is to render a defendant’s property unmarketable and unsuitable as security for a loan. The financial pressure exerted on the property owner may be considerable, forcing him to settle not due to the merits of the suit but to rid himself of the cloud upon his title. The potential for abuse is obvious. In light of its history as a device designed to protect third parties rather than provide plaintiffs with an unfair advantage in litigation, courts have restricted rather than broadened application of this potentially devastating pretrial remedy.”

215 Cal.App.3d at 1326-27, 264 Cal.Rptr. at 66 (citations omitted).

The Department also cites General Electric Credit Corp. v. Winnebago of New Jersey, Inc., 149 N.J.Super. 81, 373 A.2d 402 (1977). In General Electric, the plaintiff sued the defendants for money owed on credit obligations. The parties reached an agreement that the defendants would give the plaintiff a mortgage on two new pieces of real property to secure the deficiencies in their credit obligations, and the case was dismissed. However, the defendants failed to execute the mortgages and the plaintiff filed another complaint claiming an interest in those two properties through an equitable mortgage. Subsequently, the plaintiff learned that the defendants did not have title to one of the pieces of property and that the other piece of property already had a substantial hen on it. The plaintiff amended its complaint to allege fraud and sought a mortgage on other properties owned by the defendants and on a piece of property titled in the name of a company that it alleged was a wholly owned subsidiary of the defendants. The appeals court held that the lis pendens notice was proper because the mortgages the plaintiff sought to enforce would have a direct effect on the title to those properties. General Electric is distinguishable from this case because the claim in General Electric was tied directly to real property through the settlement agreement entered into by the parties.

In the present case, the Department has assessed taxes against Wyatt Oil Company. There is no assessment against Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, or Charles Wyatt. The Department’s claim is essentially that it might lose the ability to satisfy its tax lien against Wyatt Oil Company if the other entities are not listed on its lis pendens notice. This does not justify listing Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, or Charles Wyatt on the lis pen-dens notice for the property. The Department has no liens against Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, or Charles Wyatt, and, therefore, § 35-4-131 does not apply to property owned by those parties. Here, the Department seeks to satisfy the tax lien against Wyatt Oil Company through the underlying action concerning allegedly fraudulent transfers involving property owned by Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, or Charles Wyatt. As such, the Department’s interest is no more than a collateral claim to satisfy the tax lien. Therefore, the trial court properly struck the notice of lis pendens as to Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and Charles Wyatt.

“Mandamus is a drastic and extraordinary remedy, which should be granted only when there is a clear showing that the trial court abused its discretion and exercised it in an arbitrary or capricious manner.” Ex parte Norwood, 615 So.2d 1210, 1212 (Ala.Civ.App.1992). We cannot say that the Department has shown that the trial court erred in striking certain names from the lis pendens notice. Accordingly, we deny the petition for writ of mandamus.

We note that the Department is not without remedies. Section 8-9A-7(a)(3)a. of the Uniform Fraudulent Transfer Act provides that in an action for relief against a fraudulent transfer, subject to the applicable principles of equity and in accordance with the Alabama Rules of Civil Procedure, one of the remedies available is “[a]n injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property.”

WRIT DENIED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY and MURDOCK, JJ., concur specially.

CRAWLEY, Judge,

concurring specially.

I concur, but I would distinguish the California cases cited by the Department and discussed in the main opinion on the following basis: Those decisions are based on California statutes that allow the filing of a lis pendens notice in any action “affecting title or right to possession of the real property described in the notice.” See La Paglia v. Superior Court of San Diego County, 215 Cal.App.3d 1322, 1326, 264 Cal.Rptr. 63, 66 (1989).

Although the predecessor to § 35-4-135, Ala.Code 1975, allowed for the filing of a lis pendens notice in “any suit affecting” title to land, the current version of § 35-4-135 allows for the filing of a lis pendens notice only to enforce an already existing lien, right to, or interest in the real property described in the notice. Clearly, the Department’s fraudulent-conveyance action could “affect” title to the properties owned by the respondents. However, the Department, at the time it filed the notice of lis pendens, did not have an existing “lien upon, right to or interest in” such properties. § 25-4-131(a), Ala.Code 1975.

MURDOCK, Judge,

concurring specially.

The main opinion discusses a line of California cases that essentially decides the availability of lis pendens based upon whether the real property at issue is unique to the plaintiff or whether, as in La Paglia v. Superior Court of San Diego County, 215 Cal.App.3d 1322, 264 Cal.Rptr. 63 (1989), the plaintiff is merely attempting to use the notice of lis pendens as a collection tool to secure payment of money damages generally. Though not discussed in the main opinion, another California case that is consistent with this rule of decision is McKnight v. Superior Court of Los Angeles County, 170 Cal.App.3d 291, 215 Cal.Rptr. 909 (1985). If not for one problem, the Department would in all material respects be situated the same as the claimant in McKnight.

In McKnight, the claimant had loaned money to the defendant and had secured that loan with a lien on certain real property belonging to the defendant. When the defendant defaulted, the claimant filed a writ of attachment against the real property and obtained a judgment. Before the claimant could record his abstract of judgment, however, the defendant fraudulently transferred the real property in question to a third party. The claimant thereupon filed an action to set aside the fraudulent transfer and recorded a notice of lis pen-dens. The court upheld the notice of lis pendens, explaining that the claimant had a security interest in the real property that predated the fraudulent transfer.

There are two differences between the present case and McKnight. One of those differences does not matter; the other illustrates the problem the Department has in this case.

The first difference — the one that does not matter — is the fact that the Department’s lien arises by means of a statute, rather than a voluntary loan agreement. This is not a distinction recognized in our lis pendens statute.

The other difference — the one that illustrates the problem for the Department in this case — is that, unlike the claimant in McKnight, the Department has no lien on, or other particular interest in or right to, the real property in question collateral to the fraudulent-transfer action itself. It would have had such a separate, enforceable interest in the property if the sequence of events giving rise to this case had been somewhat different than it was. If Wyatt Oil Company, Inc., had owned the property in question at the time the Department obtained its final order from the administrative law judge in 1993 and its tax lien arose under § 40-29-20, Ala. Code 1975, then the Department would at that time have acquired a specific lien upon the property. As it was, however, Wyatt Oil Company transferred that property to third parties in 1991. The property therefore was not owned by Wyatt Oil Company in 1993 and, therefore, the Department’s tax lien could not, and did not, attach to it. Lis pendens is therefore not available to the Department in this fraudulent-transfer action.

      . The potential buyer was present at the hearing and, according to the defendants, was prepared to testify “about the proposed transaction and the harm [Wyatt Brothers Oil Company, Wyatt Brothers Enterprises, John R. Wyatt, and Charles Wyatt] would suffer if the lis pendens [was] not lifted.’’

      . Compare, e.g., Conn. Gen.Stat. § 52-325 (2001)(landowner is entitled, to postfiling hearing wherein the person filing the notice must present probable cause to sustain the claim).

      . If a landowner believes a notice of lis pen-dens has been improperly filed, the landowner may post a bond for double the amount of the value of the land, § 35-4-137, or may file a slander of title action, see Ex parte Boykin, 656 So.2d 821 (Ala.Civ.App.1994).

      . The California Legislature revised its lis pendens statutes in 1992, making it easier to expunge a notice of lis pendens, but the revisions did not supersede Urez, supra, and La Paglia, supra. Lewis v. Superior Court of Los Angeles County, 30 Cal.App.4th 1850, 37 Cal.Rptr.2d 63 (1994)(writ of mandamus granted expunging notice of lis pendens in a case alleging fraudulent conveyance and seeking a constructive trust or to quiet title); but see Hunting World, Inc. v. Superior Court of the City & County of San Francisco, 22 Cal. App.4th 67, 26 Cal.Rptr.2d 923 (1994)(notice of lis pendens was proper in case alleging fraudulent conveyance where husband quit-claimed property to his wife).


source: Caselaw Access Project

author: CRAWLEY, Judge. MURDOCK, Judge,

license: Public Domain

text:
    DRUMMOND COMPANY, INC. v. Gary Lee JOHNSON.
    2020121.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2003.
    Rehearing Denied Oct. 3, 2003.
    Certiorari Quashed Oct. 15, 2004 Alabama Supreme Court 1030070.

      William Anthony Davis III, Jeannie B. Walston, and Blake D. Andrews of Starnes & Atchison, LLP, Birmingham, for appellant.
    John E. Warren III and Jonathan Coleman Sapp of Warren & Sapp, L.L.C., Jasper, for appellee.

       Note from the reporter of decisions: On February 13, 2004, the Alabama Supreme Court denied certiorari review, without opinion. By an order dated April 5, 2004, that court withdrew its February 13, 2004, order and certificate of judgment, noting that because of a clerical error certiorari review had been incorrectly denied and should have been granted. The case was then treated as though certiorari review had been granted on February 13, 2004.

   CRAWLEY, Judge.

Drummond Company, Inc. (“the company”), appeals from the trial court’s award of workers’ compensation benefits to Gary Lee Johnson (“the worker”). We affirm.

The worker sued the company seeking to recover workers’ compensation benefits for occupational pneumoconiosis, an occupational disease that the worker alleged he had contracted as a result of his employment. The company answered and denied liability. Following an ore tenus proceeding, the trial court entered an order stating that the worker had failed to present sufficient evidence that he had occupational pneumoconiosis and denied benefits. The worker filed a motion to alter, amend, or vacate the judgment, or, in the alternative, for a new trial, arguing that the trial court had failed to properly consider certain testimony provided in deposition by his primary treating physicians. The company filed a reply to the worker’s postjudgment motion. Upon consideration of those motions, the trial court amended its judgment and found that the worker had presented sufficient evidence that he suffered from occupational pneumoconiosis as a result of his employment with the company and that he was 38% permanently and partially disabled; it awarded benefits accordingly. The company then filed a notice of appeal to this court.

On appeal, the company argues (1) that the trial court erred by awarding workers’ compensation benefits to the worker because, it claims, the worker presented no evidence indicating that he had been diagnosed with occupational pneumoconiosis; (2) that the trial court erred by awarding the worker benefits for past and future medical expenses related to a general “occupational disease” and “injuries,” which, it claims, the trial court failed to specifically identify; and (3) that the trial court erred by awarding the worker costs for the expense of “medical fees for providing medical information and medical records.”

The standard of review this court employs when reviewing a trial court’s judgment in a workers’ compensation case is well-settled. The Workers’ Compensation Act, § 25-5-1 et seq., AIa.Code 1975, provides that “[i]n reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” § 25 — 5—81(e)(1), Ala.Code 1975. Our supreme court has stated the standard of review to be employed as to a trial court’s findings of fact as follows:

“[Ujnder the applicable standard of review, we will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘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.’ ”

Ex parte Trinity Indus., Inc., 680 So.2d 262, 268-69 (Ala.1996)(quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989), and citing § 12-21-12(d), Ala.Code 1975). See also § 25-5-81(e)(2), Ala.Code 1975. Further, “[t]he [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

The company first contends that the trial court erred by determining that the worker had occupational pneumoconiosis because, it claims, there was no evidence to indicate that a doctor had diagnosed him with that disease. It relies primarily on Ex parte Dan River, Inc., 794 So.2d 386 (Ala.2000), and Drummond Co., Inc. v. Harris, 824 So.2d 775 (Ala.Civ.App.2001).

In Dan River, supra, our supreme court reversed a trial court’s award, and this court’s affirmance of the award, of workers’ compensation benefits for byssinosis because the worker had failed to provide any evidence to indicate that a doctor had diagnosed him as suffering from byssino-sis. Three doctors who had examined the worker testified by deposition. The first stated that it was his opinion that the worker had a nonoccupational form of adult asthma; the second stated that the worker did not have byssinosis; and the third stated that he had treated the worker for chronic sinusitis and chronic bronchitis, but did not diagnose the worker as having byssinosis. The supreme court held that “it [is] error for [a] trial court to make a diagnosis that the medical experts [are] not willing to make.” 794 So.2d at 390. It further stated:

“We generally agree that a trial court can synthesize a wide range of medical testimony, even conflicting medical testimony, to reach its own conclusions on medical matters. However, 'trial courts cannot go so far as to find that a plaintiff has a particular disease without the testimony of at least one medical expert, qualified to make such a diagnosis, who is willing to testify that the plaintiff is actually suffering from that disease.”

Id. at 391 (emphasis added).

In Harris, supra, this court, relying on Dan River, similarly reversed a trial court’s award of workers’ compensation benefits for occupational pneumoconiosis when the record on appeal showed that no doctor had diagnosed the worker with occupational pneumoconiosis. The medical testimony available in the record in Harris was that the worker suffered from a respiratory-tract infection, not an occupational disease.

Upon review of those authorities, we conclude that the instant case is not subject to the principle of law set forth in Dan River and Harris. In this case, Dr. Jan Hendrick Westerman testified during deposition that the worker had occupational-induced reactive-airways disease. There was other medical testimony presented that the worker does not have occupational pneumoconiosis; therefore, the evidence was in conflict, and it was the trial court’s function to synthesize that testimony and reach its own conclusions. See Dan River, supra.

Further, we conclude that occupational pneumoconiosis is not a “particular disease,” such as the alleged disease at issue in Dan River, but that it is a term that encompasses a number of pulmonary diseases. “Occupational pneumoconiosis” is defined in the Workers’ Compensation Act as:

“A disease of the lungs caused by inhalation of minute particles of dust over a period of time, which dust is due to causes and conditions arising out of and in the course of the employment, without regard to whether the causes or conditions are inherent in the employment or can be eliminated or reduced by due care on the part of the employer. The term ‘occupational pneumoconiosis’ shall include, but without limitation, such diseases as silicosis, siderosis, anthracosis, anthrasilicosis, anthracosilicosis, anthra-co-tuberculosis, tuberculosilicosis, silieo-tuberculosis, aluminosis, and other diseases of the lungs resulting from causes enumerated in this section.”

Section 25-5-110(2), Ala.Code 1975 (emphasis added). Our review of the record shows that the worker produced sufficient evidence that his occupational-induced reactive-airways disease, with which he was diagnosed by Dr. Westerman, is a disease of the lungs resulting from the causes stated in § 25-5-110(2). Accordingly, the trial court did not err by determining that the worker had occupational pneumoconiosis.

Our review of the remaining two issues raised by the company in its brief on appeal show that it has failed to cite any supporting authority for those arguments, in violation of Rule 28(a), Ala. R.App. P. “ ‘Where an appellant fails to cite any authority, we may affirm, for it is neither our duty nor [our] function to perform all of the legal research for an appellant.’ ” McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992)(quoting Gibson v. Nix, 460 So.2d 1346, 1347 (Ala.Civ.App.1984)).

“Appellants who fail to comply with [Ala.] RApp. P. 28(a) place themselves in a perilous position. While we attempt to avoid dismissing appeals or affirming judgments on what may be seen as technicalities, we are sometimes unable to address the merits of an appellant’s claim when the appellant fails to articulate that claim and presents no authorities in support of that claim. Under appropriate circumstances we will refuse to consider the appeal.”

Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985). “Failure to cite any authority supporting [the appellant’s] arguments precludes this court from considering the issues presented.” Sanders v. Mullins, 579 So.2d 1349, 1350 (Ala.Civ.App.1990). Accordingly, we will not address the remaining issues raised by the company.

The trial court’s judgment is therefore due to be affirmed.

AFFIRMED.

YATES, P.J., concurs.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result.

MURDOCK, Judge,

concurring in the result.

The Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, defines “occupational pneumoconiosis” as

“[a] disease of the lungs caused by inhalation of minute particles of dust over a period of time, which dust is due to causes and conditions arising out of and in the course of the employment, without regard to whether the causes or conditions are inherent in the employment or can be eliminated or reduced by due care on the part of the employer. The term ‘occupational pneumoconiosis’ shall include, but without limitation, such diseases as silicosis, siderosis, an-thracosis, anthrasilicosis, anthracosilico-sis, anthraco-tuberculosis, tuberculosili-cosis, silicotuberculosis, aluminosis, and other diseases of the lungs resulting from causes enumerated in this section.”

Ala.Code 1975, § 25-5-110(2) (emphasis added). Thus, while the main opinion is correct that the term “occupational pneu-moconiosis” is not a term that is limited to one particular disease, it is a term that does refer to particular diseases, namely, diseases of the lung that have a specific etiology involving the “inhalation of minute particles of dust over a period of time.” Because of the need for medical expertise to diagnose whether an employee suffers from a disease of the lungs with this particular etiology, a case involving the question whether an employee suffers from occupational pneumoconiosis is no less subject to the principles of law articulated in Ex parte Dan River, Inc., 794 So.2d 386 (Ala.2000), and Drummond Co. v. Harris, 824 So.2d 775 (Ala.Civ.App.2001), than were those cases. Indeed, the issue in Harris was whether the employee suffered from occupational pneumoconiosis, and the same definition of “occupational pneumoco-niosis” that is at issue in the present case was in place when this court decided Harris. We were correct to apply the principle of law articulated in Ex parte Dan River in the Harris case given the nature of the diseases that, defínitionally, fall within the term “occupational pneumoconi-osis” and the nature of the etiology prescribed by the statute.

The reason that the outcome for the employee is different in the present case than it was for the employees in Ex parte Dan River and Harris, therefore, is not that the present case is not subject to the same principle that governed the outcome in those cases. Instead, it is that, in applying that principle to the present case, one finds that, unlike the records in Ex parte Dan River, Inc. and Harris, the record in the present case does contain sufficient medical testimony supporting the trial court’s conclusion that the worker suffered from occupational pneumoconio-sis. Specifically, the record here contains 'substantial evidence in the form of the testimony of Dr. Westerman that the worker’s condition resulted from, or was at least aggravated by, the inhalation over time of dust particles in his work, thus satisfying the definitional requirements of § 25-5-110(2).

      . This case illustrates the need for such medical expertise. While each of the five physicians who testified in this case agreed that the employee suffered from some illness in his lungs, some of the physicians involved stopped short of attributing that illness to the inhalation of minute dust particles, and some of the medical testimony tended to support the conclusion that the employee’s illness had its etiology in exposure to chemicals or other workplace substances other than particles of dust.
      Further, it is not enough that the record would support the conclusion that the worker suffered from some occupation-induced or occupation-aggravated illness. Consistent with Ex parte Dan River, Inc., 794 So.2d 386, and Drummond Co. v. Harris, 824 So.2d 775, it is necessary to determine whether the record supports the conclusion that the employee suffered from occupational pneumoconiosis, specifically, rather than some other illness, because the trial court specifically found the employee to suffer from occupational pneu-moconiosis. This court is not a finder of fact and cannot make a finding that the employee suffered from some affliction different from that which the trial court found him to suffer. Nor can we speculate as to what percentage of disability, if any, the trial court would have assigned if it had found that the employee suffered from some different affliction.


author: MURDOCK, Judge.

text:
    SHADES MOUNTAIN PLAZA, L.L.C. v. CITY OF HOOVER et al.
    2010891.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.
    Rehearing Denied Oct. 24, 2003.
    Certiorari Denied March 12, 2004 Alabama Supreme Court 1030233.

      Donna Richardson Shirley of Corretti, Newsom & Hawkins, Birmingham, for appellant.
    Stephen B. Griffin of Stephen B. Griffin & Associates, Hoover, for appellee the City of Hoover.
   MURDOCK, Judge.

The plaintiff, Shades Mountain Plaza, L.L.C. (“Shades Mountain”), appeals from a judgment of the Jefferson Circuit Court denying its complaint seeking an order declaring a City of Hoover zoning ordinance to be contrary to § 11-52-80, Ala. Code 1975. We affirm.

Shades Mountain owns a parcel of real property within the City of Hoover (“the City”) that is zoned by the City as C-2 (Community Business District). This parcel contains a strip retail-shopping center and approximately three undeveloped acres on which Shades Mountain desires to construct a self-service “mini-warehouse” storage facility. Article VI, § 11.3, of the City’s zoning ordinance no. 00-1766 (hereinafter sometimes referred to as “the zoning ordinance”) designates self-service storage facilities as one of several “conditional uses” that may be permitted on land zoned as C-2. Article III, § 2.30 of the zoning ordinance provides that requests for conditional uses must be reviewed by the City’s Planning and Zoning Commission (“the planning commission”) and approved by the city council.

In addition to the conditional uses prescribed in Art. VI, § 11.3, Art. VI, § 11.4 of the zoning ordinance designates certain land uses as “special exceptions” that may be permitted on land zoned as C-2. Article III, § 2.40 of the zoning ordinance provides that special exceptions must be approved by the City’s Board of Zoning Adjustment (“the board”).

Without the aid of counsel, Shades Mountain applied to the planning commission for approval of the “conditional use” of its property for the construction and operation of a storage facility. That application was denied by the planning commission.

Subsequently, with the aid of counsel, Shades Mountain sought approval for the storage facility by making application to the board. The City’s zoning administrator, however, refused to accept the application because a storage facility is not one of the land uses designated in the ordinance as a “special exception” to the restrictions on land zoned as C-2.

Shades Mountain thereafter filed suit against the City and its city council members on July 18, 2001. Shades Mountain alleged that the authority to consider and approve or deny the “conditional use” for which it sought approval was specifically delegated by the Legislature in § 11-52-80 to the board. Accordingly, Shades Mountain sought a declaration that the requirement in the City’s zoning ordinance that conditional uses be reviewed by the planning commission and approved by the city council is contrary to § 11-52-80 and, therefore, void. On April 24, 2002, the trial court denied the relief requested by Shades Mountain. Shades Mountain appeals, arguing that the trial court erred in determining that the City’s zoning ordinance does not violate § 11-52-80.

Because the trial court received evidence ore tenus,

“ ‘[w]e will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.’ Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). However, the ore tenus rule does not extend to cloak a trial judge’s conclusions of law, or incorrect application of law to the facts, with a presumption of correctness.”

Ex parte Hurricane Freddy’s, Inc., 861 So.2d 1075, 1076 (Ala.2002). Because Shades Mountain appeals a purported error of law, a presumption of correctness is not afforded to the trial court’s conclusions.

In § 11-52-70, Ala.Code 1975, the Legislature has authorized municipal corporations to engage in the zoning of real property located within their corporate limits by the municipality:

“Each municipal corporation in the State of Alabama may divide the territory within its corporate limits into business, industrial and residential zones or districts and may provide the kind, character and use of structures and improvements that may be erected or made within the several zones or districts established and may, from time to time, rearrange or alter the boundaries of such zones or districts and may also adopt such ordinances as necessary to carry into effect and make effective the provisions of this artidé.”

Section 11-52-76, Ala.Code 1975, more specifically delegates to the legislative body of each municipality the authority to exercise the aforesaid zoning authority and to implement and enforce the zoning regulations that may be adopted:

“The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be determined, established and enforced and from time to time amended, supplemented or changed and may adopt such ordinances as may be necessary to carry into effect and make effective the provisions of this article.”

Accordingly, as our Supreme Court has explained:

“It is settled law that the Alabama Legislature has delegated to municipal legislative bodies, such as city councils, the power and authority to enact zoning ordinances....
“ ‘ “Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion, and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational and justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.
“ ‘ “In accordance with these principles, it has been stated that the courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare, or ... plainly contrary to the zoning laws.” ’ ”

American Petroleum Equip. & Constr., Inc. v. Fancher, 708 So.2d 129, 131 (Ala.1997) (quoting Homewood Citizens Ass’n v. City of Homewood, 548 So.2d 142, 143 (Ala.1989), quoting in turn 82 Am.Jur.2d Zoning and Planning § 338 (1976)).

Section 11-52-80 provides, in pertinent part:

“(a) In availing itself of the powers conferred by this article, the legislative body of any incorporated city or town may provide for the appointment of a board of adjustment and, in the regulations and restrictions adopted pursuant to the authority of this article, may provide that the said board of adjustment shall in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of the ordinance in harmony with its general purposes and interests and in accordance with general or specific rules therein contained.
“(b) The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this article....
“(d) The board of adjustment shall have the following powers:
“(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant thereto;
“(2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and
“(3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.”

(Emphasis added.) In accord with this statute, Art. Ill, § 1.1 of the zoning ordinance provides that “[t]he board of adjustment herein established shall have only those powers specifically delegated to it by the provisions of Section 11-52-80, Code of Ala.1975.”

Shades Mountain contends on appeal that the terms “special exception” and “conditional use” are synonymous and are used interchangeably in land-use law. It cites several cases from other jurisdictions and a variety of zoning and land-use treatises in support of this proposition. Indeed, this question has not been directly addressed by this court or our Supreme Court. See generally Ex parte Fairhope Bd. of Adjustment & Appeals, 567 So.2d 1353, 1355 (Ala.1990) (explaining that “[a] special exception” in general terms is a type of a “conditionally permitted use, that is, it is an enumerated use specified in the zoning ordinances that requires the approval of an administrative board or agency”). Shades Mountain essentially argues that because the terms “special exception” and “conditional use” should be considered interchangeable, and because § 11-52-80 authorizes the board “[t]o hear and decide special exceptions to the terms of the [zoning] ordinance” at issue, the zoning ordinance improperly provides that conditional-use applications must be heard by the planning commission and ultimately accepted or rejected by the city council. Such a requirement is inappropriate, according to Shades Mountain, because “[a]ny zoning ordinances which are enactr ed under [the city council’s] delegated legislative authority must be enacted pursuant to, and in substantial conformity with, the enabling act.” Swann v. Board of Zoning Adjustment of Jefferson County, 459 So.2d 896, 898 (Ala.Civ.App.1984).

As a threshold matter, we note that the terms “conditional use” and “special exception” are not used synonymously in the zoning ordinance itself. While both terms refer to conditionally permitted uses in the general sense that the right of the land owner to engage in such uses is not granted as a regular use by the applicable provision of the zoning ordinance, but instead is conditioned on review and approval by a governmental entity on a case-by-case basis, they are treated in the City’s zoning ordinance as two different types of conditionally permitted uses. Thus, Art. Ill, § 2.30 of the City’s zoning ordinance provides that “[rjequests for conditional uses as stipulated within the zone district regulations ... are permitted only after review by the planning and zoning commission and approval of the city council.” Article III, § 2.40, on the other hand, provides that “[rjequests for special exception uses stipulated within the zoning district regulations ... are permitted only after review and approval by the board of adjustment.”

It is also clear that under the zoning ordinance self-storage facilities are designated as conditional uses and not as special exceptions. Article VI, § 11 of the City’s zoning ordinance, the “C-2 Community Business District” section of the ordinance, lists the various types of facilities permitted in a retail business district zoned as C-2. “Permitted principal uses” of property zoned as C-2 include auto-parts stores, bakeries, grocery stores, department stores, banks, motels and hotels, all types of restaurants, and “other retail stores deemed appropriate by the city.” Under Art. VI, § 11.3, “conditional uses” of property zoned as C-2 include “[sjhop-ping centers, hospitals, nursing homes, self-service storage facilities, uses listed in section 12.2(B) of the general business district, commercial recreation and amusement facilities, and on-premise and off-premise sale of alcoholic beverages and live entertainment.” (Emphasis added.) Finally, the zoning ordinance lists only one “special-exception use” in a C-2 zone, namely “[tjelecommunications facilities.” Art. VI, § 11.4.

Because “zoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts,” municipal authorities “must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion.” City of Birmingham v. Morris, 396 So.2d 53, 55 (Ala.1981). “[Ljocal governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved [in zoning], to balance the burdens and benefits and to consider the general welfare of the area involved.” Id. The City has chosen to treat the terms “conditional uses” and “special exceptions” differently; that choice must be presumed valid, unless it is shown to be “clearly arbitrary and unreasonable.” Swann, 459 So.2d at 898.

The language of § 11-52-80 does not mandate that a board of zoning adjustment be created by the municipality, much less that it be the only body that reviews conditionally permitted land uses. Further, as the trial court observed, § 11 — 52— 80 provides that the “legislative body” of the municipality, in this case the city council, “may provide that the said board of adjustment shall ... make special exceptions to the terms of the ordinance.” (Emphasis added.) Thus, “Alabama has not established a single forum for resolution of zoning disputes. Each city may establish zoning commissions and a board of zoning adjustment.” Nasser v. City of Home wood, 671 F.2d 432, 440 (11th Cir.1982) (citing §§ 11-52-79 and 11-52-80, Ala. Code 1975).

Furthermore, § ll-52-80(d)(2) states that boards of zoning adjustment have the power “[t]o hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance .... ” (emphasis added). Consistent with the authority it derives from §§ 11-52-70, -76, and -80, the city council has elected to adopt a zoning ordinance that does not authorize or require the board to consider or approve “conditional-use” requests. Thus, even if conditional uses could in general terms be considered “special exceptions,” they are not special exceptions “upon which [the board] is required to pass under [the City’s zoning ordinance].”

Drawing on case authorities dealing with variances, Shades Mountain cites the following discussion by this court regarding the statutorily prescribed authority of boards of zoning adjustment:

“Whether a city council has the power to usurp from the Board of Adjustment its traditionally recognized power to grant a use variance in ‘unnecessary hardship’ cases has been before the courts on numerous occasions. Section ll-52-80(d), Ala.Code (1975), sets out the powers of the Board of Adjustment which includes authorization of variance from the terms of the zoning ordinance. The power and authority of the Board of Zoning Adjustment (to determine that the facts are such as was intended by the legislature to entitle a property owner to a variance from the terms of a zoning ordinance) are not a delegation of legislative authority; the Board of Zoning Adjustment sits as an administrative body performing a quasi-judicial function. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). And, since the Board of Adjustment derives its power directly from the state legislature, such power cannot be circumscribed, altered, or extended by the municipal governing body. Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). Accord, Water Works Board v. Stephens, 262 Ala. 203, 78 So.2d 267 (1955). Therefore, the [Board of Adjustment], not the City Council, had the authority to authorize a variance from the zoning ordinance.”

Alabama Farm Bureau Mut. Cas. Ins. Co. v. Board of Adjustment of Hanceville, 470 So.2d 1234, 1236 (Ala.Civ.App.1985). Shades Mountain argues that the reasoning employed in Alabama Farm Bureau also applies to special-exceptions cases and that, in this case, the city council has improperly circumscribed the board’s powers by dividing special exceptions and conditional uses into separate categories and allowing conditional uses to be reviewed by the planning commission and the city council, rather than the board.

In Harris v. Jefferson County Board of Zoning Adjustment, 773 So.2d 496 (Ala.Civ.App.2000), this court noted the difference between “special exceptions” and “variances”:

“ ‘Generally, a variance is a relief granted from the literal import and strict application of zoning regulations, thereby allowing property to be used in a manner otherwise forbidden by the terms of the regulations. ... On the other hand a special exception denotes a species of administrative permission which allows a property owner to use his property in a manner which the regula tions expressly permit under conditions specified in the zoning regulations themselves. ... Thus, a special exception is not truly an exception to the zoning regulations at all.’ ”

773 So.2d at 498 (quoting Lindquist v. Board of Adjustment of Jefferson County, 490 So.2d 16, 17-18 (Ala.Civ.App.1986)) (emphasis added). In other words, a special exception, though it is not a regular permitted use, is a use that is expressly listed in and permitted by a set of zoning regulations, provided that it is specially approved in accordance with the procedures, and subject to the conditions, set forth in those regulations; whereas a variance is a use that is not listed in the zoning regulations, but is a relaxation of, or, literally, a “variance” from, the uses otherwise permitted by the zoning regulations.

“The distinction between a ‘special exception’ and a ‘variance’ is critical because they do not encompass the same relief and the burden upon the applicant is extremely different.” Maumenee v. Fairhope Bd. of Adjustment & Appeals, 567 So.2d 1351, 1352 (Ala.Civ.App.1989). Section 11-52-80 specifically provides the municipal legislative body with the option, if it has chosen to create a board of adjustment, of investing that board with the power to hear special-exception cases; again, the statute states that the municipal legislative body “may provide that the said board of adjustment shall ... make special exceptions to the terms of the ordinance” (emphasis added) and that the board is to hear and decide applications for special exceptions “upon which such board is required to pass under the ordinance.” Section 11-52-80 does not, in contrast, give the municipal legislative body the option of not investing in its board of adjustment the power to hear variance appeals, if it has chosen to create a board of adjustment. To the contrary, as Alabama Farm Bureau holds, § ll-52-80(d) removes that option from the municipal legislative body. The reasoning of Alabama Farm Bureau therefore is not applicable to this case.

Nonetheless, Shades Mountain argues that, because the City has chosen to create a board of zoning adjustment, the statute requires that that board be the body to consider and pass upon the “conditional uses” herein at issue because, Shades Mountain contends, such conditional uses are nothing more than “special exceptions” under § 11 — 52—80(d) (2). Admittedly, as between a “variance” and a “special exception,” the “conditional uses” prescribed by the City’s zoning ordinance are more akin to special exceptions because they are uses that are specifically listed in the ordinance, although they are not regular permitted uses. Nothing in Alabama law, however, requires that every use that is not specifically listed as a regular permitted use in a given zoning classification be deemed either a variance or a special exception. As the trial court ruled, nothing prevents a municipality from establishing two different categories of conditionally permitted uses and prescribing separate, and different, procedures to obtain the approval of each.

The Legislature has delegated to the municipality the authority to decide what kind, character, and use of structures and improvements may be erected within various zones within a municipality’s corporate limits, and it has specifically delegated to the legislative body of each municipality authority with regard to the adoption, implementation, and enforcement of zoning regulations. Nothing in § 11-52-80 prohibits the city council from taking uses that, if it were to choose to do so, it could include as regular permitted uses in a given zoning classification and attaching special conditions to their approval, including requiring them to be approved on a case-by-case basis by the city council itself. That, in short, is what the city council has chosen to do with respect to the uses it has specifically designated by ordinance as “conditional uses”, in areas zoned as C-2. The city council also has taken advantage of the statutorily afforded option of creating a board of adjustment and delegating to it the right to consider and make decisions regarding certain uses that by ordinance it has chosen to designate as “special exceptions.” We conclude that the zoning ordinance of the City that embodies these choices has been “enacted pursuant to, and in substantial conformity with, the enabling act,” Swann, 459 So.2d at 898, and is not “arbitrary, capricious, or unreasonable.” Fancher, 708 So.2d at 131.

The board was correct in refusing to hear Shades Mountain’s application for a special exception on the ground that the zoning ordinance designates self-storage facilities as conditional uses, which under the ordinance are to be reviewed by the planning commission and the city council, rather than by the board. The trial court therefore did not err in denying Shades Mountain’s request for a declaration that the City’s zoning ordinance is contrary to § 11-52-80.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . By "regular use” we refer to what the City’s zoning ordinance labels "principal permitted use,” that is, a use to which the land may be put without any special permission or any special condition other than that the land be properly zoned for that use.

      . As noted, § 11 — 52—80(d)(3) grants to boards of zoning adjustment the authority to hear appeals of requests for variances.


text:
    Louretta Geneva PEOPLES v. Joseph Lee PEOPLES.
    2011168.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Denied Feb. 13, 2004.

      Bruce N. Adams, Anniston, for appellant.
    Charles G. Spradling, Jr., of Alabama Legal Services, P.C., Anniston, for appel-lee.
   MURDOCK, Judge.

Louretta Geneva Peoples, the wife, appeals from a judgment of the Calhoun Circuit Court divorcing her from Joseph Lee Peoples, the husband. The wife argues that the trial court abused its discretion by refusing to award her a portion of the husband’s military-retirement benefits and that it abused its discretion by denying her purported Rule 60, Ala. R. Civ. P., motion. However, the wife’s appeal is due to be dismissed as from a nonfinal order.

The parties married in 1972 and they had four children, all of whom were adults at the time of the trial. The parties separated in April 2000. At the time of the trial, the wife was 48 years old and had worked in the civil service of the United States for 21 years; the husband was 51 years old and was about to retire from the United States’ military after 30 years of service.

In September 2001, the wife filed a complaint for divorce in the Calhoun Circuit Court, alleging that the husband had committed adultery, that she and the husband were incompatible, and that there had been an irretrievable breakdown of the marriage. She requested that the trial court divide the parties’ property and debts in an equitable manner and that it award her $850 per month in alimony. The husband filed an answer to the wife’s complaint denying most of her allegations, including the allegation that he had committed adultery.

The trial court held a hearing at which it received documentary and ore tenus evidence. It issued a judgment of divorce in May 2002 based upon “an incompatibility of temperament between the parties which has led to a complete and irretrievable breakdown of the parties’ marriage.” The trial court awarded the wife the parties’ home in Eastaboga, Alabama, and it awarded the husband the parties’ home in North Carolina. It also divided the parties personal property based upon an agreement of the parties reached at trial, and it awarded each party all checking accounts and savings accounts that were in that party’s name.

In regard to the parties’ retirement plans, in the same paragraph that awarded the parties their respective financial accounts, the trial court stated:

“The Court reserves for future consideration the issue of the distribution of Military retired pay, any voluntary separation incentive, special separation benefits, early separation benefits, medical disability retirement benefits, military retirement benefits merged with other federal retirement plans and other qualified savings plans.”

We note that the husband had a retirement plan through the United States’ military that he testified would pay him $3,200 per month and that the wife’s retirement plan consisted of a thrift savings plan through her employment in the civil service. The wife’s thrift savings plan contained a balance of approximately $40,000.

In a separate numbered paragraph titled “ALIMONY,” the trial court also “reserve[d] for future consideration the issue of alimony to either party.” The reservation of the issues of the distribution of the parties’ retirement benefits and the award of alimony were apparently based upon the husband’s testimony that he might have “Lou Gherig’s disease” and that he was uncertain of his future employment prospects.

In June 2002, the wife filed a motion requesting, in part, that the trial court modify its judgment by correcting the spelling of her name in the judgment and by awarding her 50% of the husband’s military-retirement benefits. At the time of the hearing on the wife’s motion, the husband had retired from the military and he was employed in a “temporary job on probation.” After the hearing, the trial court entered an order granting the wife’s request to correct the spelling of her name and denying her request that she be awarded 50% of the husband’s retirement benefits. The order also stated, in pertinent part, that “[a]ny and all other relief prayed for in [the wife’s motion] which is not specifically granted herein is hereby DENIED and all other elements and Orders contained in the Judgment of Divorce entered in this cause hereby remain in full force and effect.”

Approximately three weeks after the trial court entered its order denying the wife’s June 2002 motion, she filed a second motion alleging that in February 2001 the parties had entered into a settlement agreement as to the division of their property in the event of their divorce. The wife attached a copy of the alleged settlement agreement to her motion. She alleged that she was entitled to relief from the trial court’s judgment based upon paragraphs (b)(1), (b)(3), (b)(4), (b)(5), and (b)(6) of Rule 60. One week after the wife filed her Rule 60(b) motion, the trial court entered an order denying the motion. The following day, the wife filed a notice of appeal.

The wife argues that the trial court abused its discretion by not awarding her a portion of the husband’s military-retirement benefits and that it abused its discretion by denying her purported Rule 60 motion.

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

In its judgment, the trial court reserved judgment as to the division of the parties’ retirement accounts.

“Section 30-2-51(a)[, Ala.Code 1975,] provides in part that ‘the judge, upon granting a divorce,’ may direct that marital property from one spouse’s estate be given to the other spouse. Subsection (b), which immediately follows this subsection provides:
“ ‘(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed.... ’
“A reading of § 30-2-51(b) indicates that a trial judge has the discretion to divide a spouse’s retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits.”

Smith v. Smith, 836 So.2d 893, 899 (Ala. Civ.App.2002) (emphasis omitted).

This court concluded in Owens v. Owens, 739 So.2d 511 (Ala.Civ.App.1999):

“The question whether an order is a final order may be phrased as whether there is ‘something more for the court to do.’ Wesley v. Brandon, 419 So.2d 257[, 258] (Ala.Civ.App.1982). The wife’s claim for medical expenses, contained in the first count of her petition, as well as her request for a modification of the husband’s child-support obligation, contained in the second count, remain pending in the trial court. Clearly, the order appealed from did not resolve all the issues before the court. It is therefore not final. Thus, this appeal was premature, and we must dismiss it.”

Owens, 739 So.2d at 513. Likewise, in the present case, the trial court has not completely adjudicated the issue of the division of marital property; rather, it has expressly reserved the issue of the division of the husband’s and the wife’s retirement accounts. The judgment appealed from therefore is not final. Accordingly, we must dismiss it.

The appellee’s request for the award of an attorney fee on appeal is denied.

APPEAL DISMISSED.

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

      . ' "Section 30-2-51(b) then states that the trial judge's discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50 percent division rule of subsection (3).” Smith, 836 So.2d at 899.

      . By our dismissal of the trial court's judgment, we do not intend to suggest that the trial court could not take into consideration its disposition of the parties’ assets, including the husband’s and the wife's retirement accounts, in determining what, if any, periodic-alimony obligation to impose upon either party now or in the future.


author: YATES, Presiding Judge.

text:
    Bobby C. MILLICAN v. Alice McKINNEY, Director, State Department of Industrial Relations. Alvin R. Biddle v. Alice McKinney, Director, State Department of Industrial Relations. Jack Anderson v. Alice McKinney, Director, State Department of Industrial Relations.
    2020530 to 2020532.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Rehearing Applications Denied Nov. 21, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1030428.

      Gary J. Bone, Gadsden, for appellants.
    Frank D. Marsh, general counsel and special asst. atty. gen., State Department of Industrial Relations, for appellee.
   YATES, Presiding Judge.

Bobby C. Millican, Alvin R. Biddle, and Jack Anderson (hereinafter referred to collectively as “the plaintiffs”) are former employees of Scottsboro Aluminum, LLC. They each filed a claim for unemployment-compensation benefits; their claims were denied by the local claims examiner and a compensation referee. The plaintiffs unsuccessfully appealed the referee’s denial of their claims to the board of appeals for the State Department of Industrial Relations (“the Department”). Each of the plaintiffs then sought relief in the circuit court, which entered summary judgments in favor of the Department and its director, Alice McKinney. The plaintiffs filed separate appeals, which were consolidated.

The dispositive issue is whether the benefits plan from which the plaintiffs received pension benefits was “maintained” by Scottsboro Aluminum, thereby disqualifying the plaintiffs from receiving unemployment compensation under § 25^1-78, Ala.Code 1975; that Code section provides, in pertinent part:

“An individual shall be disqualified for total or partial unemployment:
“(8) Receipt of Pension Payment. For any week with respect to which, or a part of which, an individual has received or has, except for the determination of an exact or specific amount, been determined eligible to receive (during a period for which benefits are being claimed) governmental or other pension, retirement or retired pay, annuity, or similar periodic payment which is based on the previous work of the individual; except, that
“b. For weeks of unemployment which begin on or after April 26, 1982, the amount of any benefits payable to an individual for any such week which begins in a period with respect to which the disqualifying provisions of this subdivision apply, shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity or other payment, which is reasonably attributable to such week, provided, however, such reduction required hereby shall apply to any pension, retirement or retired pay, annuity, or other similar payment only if:
“1. Such payment is made under a plan maintained (or contnbuted to) by a base period employer, and
“2. In the case of such a payment not made under the Social Security Act or the Railroad Retirement Act of 1974 (or the corresponding provisions of prior law), services performed for such employer by the individual after the beginning of his base period (or remuneration for such services) affect eligibility for or increase the amount of, such payment.
“c. The other provisions of this subdivision to the contrary notwithstanding, beginning with the weeks ending October 7, 1995, the amount of any pension, retirement or retired pay, annuity, or other similar periodic payment under the Social Security Act or the Railroad Retirement Act shall not result in a reduction of benefits under this subdivision.
“d. If in accordance with this subdivision (8) any individual is awarded pension payments retroactively covering the same period for which the individual received benefits, the retroactive payments shall constitute cause for disqualification and any benefits paid during such period shall be recovered.”

An appellate court reviews a summary judgment by the same standard the trial court uses in determining whether to grant a summary-judgment motion. Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1995); Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The movant has the burden of making a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). If the moving party makes that prima facie showing, then the burden shifts to the nonmoving party, who then has the burden of presenting substantial evidence creating a genuine issue of material fact. Id. In determining whether the evidence creates a genuine issue of material fact, this court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993). Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

There are no material facts in dispute; therefore, our review is appropriately limited to whether the circuit court correctly determined that the Department and its director were entitled to a summary judgment as a matter of law. The material facts are as follows: In February 1999, Scottsboro Aluminum purchased all the interests of Norandal USA, Inc., including the facility in Scottsboro where the plaintiffs worked. Included in the purchase was a pension plan and fund established by Norandal in which the plaintiffs participated. In trying to sell the facility, Norandal funded the pension plan at a high rate in order to make the business more attractive to potential buyers. As part of the purchase of the pension plan, Scottsboro Aluminum continued under an agreement that Norandal had with the local union of the United Steel Workers of America. That agreement expired in October 1999, and Scottsboro Aluminum entered into a new labor agreement with its employees that increased the benefits provided under the plan. The parties agreed to increase the “multiplier” from $2 to $4 (i.e., an employee’s basic retirement benefit was calculated by multiplying the employee’s years of credited service by $4 per month).

Scottsboro Aluminum changed the trustee of the pension-plan funds from Mellon Bank to Bank One. Applications from pensioners were processed by Scottsboro Aluminum and sent to the trustee bank. The parties agreed that Scottsboro Aluminum had made no financial contributions to the pension fund.

Scottsboro Aluminum filed a petition in bankruptcy in 2001, at which time it ceased operations. Pension Benefit Guaranty Corporation (“PBGC”) was appointed trustee of the pension plan during the bankruptcy proceedings. PBGC was created by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), “to administer and enforce a pension plan termination insurance program, to which contributors to both single-member and multiemployer plans were required to pay insurance premiums.” Concrete Pipe & Prods. of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 607, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). PBGC is “a private governmental corporation modeled after the Federal Deposit Insurance Corporation and charged statutorily with protecting and preserving private pension plans.” In re CF & I Fabricators of Utah, Inc., 150 F.3d 1293, 1295 (10th Cir.1998).

After Scottsboro Aluminum ceased operations, the plaintiffs sought unemployment-compensation benefits from Scotts-boro Aluminum as their base-period employer. However, the plaintiffs were already receiving pension benefits because of their involuntary retirement; the compensation referee ultimately determined that they were disqualified from receiving unemployment compensation, pursuant to § 25-4-78(8), because Scottsboro Aluminum “maintained” the pension plan from which the plaintiffs were receiving benefits.

The purpose of the unemployment-compensation law is to provide funds to avoid a period of destitution for involuntarily unemployed workers during their unemployment. Metcalf v. Department of Indus. Relations, 245 Ala. 299, 16 So.2d 787 (1944). The Social Security Act established a federal program designed to assist states in administering their programs. 42 U.S.C. § 501 et seq. The states whose unemployment-compensation programs satisfy certain requirements qualify for federal funds to administer them programs. The federal statutes relating to funding are set out in the Social Security Act and the Federal Unemployment Tax Act, 26 U.S.C. § 3301 et seq. (the “FUTA”). Before 1976, some states allowed retirees who received Social Security benefits or public or private pensions to also receive unemployment compensation “even though they actually had withdrawn from the labor force.” Watkins v. Cantrell, 736 F.2d 933, 937 (4th Cir.1984). In response, Congress amended the FUTA to require all states receiving federal funds for their unemployment-compensation programs to offset a person’s unemployment compensation by the amount of any public or private pension or other similar periodic retirement payment the person received based on the person’s previous employment. Id. The FUTA offset requirements apply only if “such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law).” 26 U.S.C. § 3304(a)(15)(A)(i). In accordance with the federal requirements, § 25-4-78(8)b.l., Ala.Code 1975, disqualifies an individual from receiving-unemployment compensation “[f]or weeks of unemployment” with respect to which that individual is receiving a pension only if “[s]uch payment is made under a plan maintained (or contributed to) by a base period employer_” The plaintiffs contend that the plan from which they received pension benefits was not “maintained” by Scottsboro Aluminum because, they argue, Scottsboro Aluminum had simply undertaken mere ministerial acts with regard to the pension plan.

We recognize that the Unemployment Compensation Act, § 25-4-1, et seq., Ala.Code 1975, “is remedial in character, and its beneficent purpose should be liberally construed, and its provisions of disqualification from benefits should be narrowly construed.” Holmes v. Cook, 45 Ala. App. 688, 691, 236 So.2d 352, 355 (1970). We also recognize that, in construing a statute, we

“must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says.”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003) (citations omitted).

The plaintiffs argue that the few actions taken by Scottsboro Aluminum with respect to the pension plan did not rise to the level of “maintaining” the pension plan as the Legislature intended in § 25-4-78(8). They argue that the pension plan was not “maintained” because it is now under the control of PBGC, which has determined that the pension “will be unable to pay benefits when due.” The plaintiffs argue that Scottsboro Aluminum’s failure to add or contribute funds to the plan means that it failed to maintain the plan. To hold that the word “maintain” as used in § 25-4-78(8) means “to contribute to” would render the Legislature’s use of the phrase “(or contribute to)” meaningless. “It will not be presumed that the Legislature has employed ‘meaningless words.’ ” Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 794 (Ala.2000), quoting Elder v. State, 162 Ala. 41, 45, 50 So. 370, 371 (1909).

Accepting the plaintiffs’ position would also defeat Congress’s intent of preventing an employee who is receiving retirement benefits from his or her employer from also receiving unemployment-compensation benefits from the unemployment-compensation fund into which the employer paid unemployment-compensation premiums. The purpose of the Unemployment Compensation Act — providing an involuntarily unemployed employee with some compensation — is fulfilled when an employer maintaining or contributing to a pension plan provides the employee with retirement benefits during his unemployment. It should be noted that, in the present case, there was testimony indicating that employees of Scottsboro Aluminum who were not receiving retirement benefits did receive unemployment compensation.

In Holmes v. Cook, supra, an involuntarily retired employee received a monthly payment pursuant to an employer pension plan. This court held that the employee was not entitled to unemployment compensation because the monthly pension payments the employee received arose out of the employer-employee relationship and equaled or exceeded the benefits provided by the Unemployment Compensation Act. With regard to the pension payment received by the employee, this court stated:

“It is a payment made to compensate the appellee for his loss of employment and wages by his forced retirement. Since his employer has provided funds equal to or in excess of the benefits to which he would have been entitled under the Unemployment Compensation Law, appellee is disqualified from receiving such benefits so long as he receives the pension, or until such time as he qualifies for benefits from other employment and another employer.”

Holmes, 45 Ala.App. at 696, 236 So.2d at 359. While Scottsboro Aluminum did not contribute to the pension fund, it purchased the pension fund as part of its purchase of all of Norandal’s interests and the pension benefits went to Scottsboro Aluminum’s employees. Whether the “underfunding” of the pension plan violated ERISA, the Internal Revenue Code, or some other law is not the question; rather, the question is whether Scottsboro Aluminum “maintained” the pension plan as that term is contemplated under § 25-4-78(8), thereby disqualifying the plaintiffs from receiving unemployment-compensation benefits while they were simultaneously receiving retirement benefits. We conclude that it did. Accordingly, the trial court’s summary judgments in favor of Scottsboro Aluminum are due to be affirmed.

AFFIRMED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . Certain employees were eligible for a supplement of $400 per month, in addition to their retirement benefits, if the facility closed. Entitlement to the supplement was based on an employee’s years of service.

        . See, e.g., Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 215 F.3d 407 (3d Cir.2000)(PBGC brought an action under ERISA to recover unfunded pension-plan obligations from employer that had sold unprofitable business to evade pension liabilities); Aldridge v. Lily-Tulip, Inc., Salary Ret. Plan Benefits Comm., 953 F.2d 587 (11th Cir.1992)(employees brought action against employer alleging violations of ERISA for failure to maintain funding for employees' contingent, forfeitable rights to subsidized early retirement); Pension Benefit Guar. Corp. v. West Side Bakery, Inc., 777 F.Supp. 2 (S.D.N.Y.1991)(PBGC brought action to collect unpaid employer contributions to establish employer liability in connection with pension plan's termination).


author: McMILLAN, Presiding Judge.

text:
    James Larry CRAWFORD v. STATE.
    CR-01-2205.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 22, 2003.

      Richard D. Horne, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, James Larry Crawford, was indicted on a charge of reckless murder. The jury found him guilty of the lesser-included offense of manslaughter, and the trial court sentenced him to 20 years’ imprisonment. The State’s evidence tended to show that on August 6, 2000, Crawford met his friend Steve Cain at Revere’s bar and restaurant in Mobile. Crawford admitted that he consumed four alcoholic drinks between 5:45 and 10:00 p.m. Shortly before he left Revere’s, Crawford got into an argument with Christina Dorsey, a woman who owed him money. Dorsey and her friend Diane Campbell then left Revere’s. Crawford admitted that he was intoxicated when he left the bar about 10:30 p.m. He was driving his truck south on Rangeline Road toward his home when a Honda automobile attempted to merge onto Rangeline Road in the same direction. The appellant swerved to the left, and his truck left the road. Crawford swerved again, and his truck crossed the median and collided with a white Grand Prix automobile that was traveling north on Rangeline Road. The driver of the Grand Prix, Michael Carpenter, subsequently died from blunt-force injuries he suffered in the collision. Vincent Freeman, a passenger in the Honda, testified that Crawford was traveling at least 80 miles per hour. Freeman and paramedic Ronnie Walker both observed Crawford after the collision and believed that he was intoxicated. Forensic analysis of two blood samples taken from Crawford revealed a blood alcohol level of .178 and .125 percent, respectively. Steve Cain testified that Crawford did not appear intoxicated when Cain left Revere’s about 8:00 p.m. Revere’s bartender Lila Davis Cain said that Crawford did not appear intoxicated to her on the evening of August 6, and owner Sharon Davis said that he did not seem intoxicated when she saw him at 10:20 or 10:30 p.m. Diane Campbell testified that she was with Crawford and Christina Dorsey at Revere’s on August 6. While Crawford and Dorsey were arguing, Campbell heard the bartender state, “I’ll hush him up,” and laugh. The bartender then filled Crawford’s glass with undiluted vodka. Campbell said that Crawford did not see what the bartender had done.

I.

Crawford contends that, under the facts of this case, the trial court erred by refusing to charge the jury on vehicular homicide. He argues that in Ex parte Jordan, 486 So.2d 485 (Ala.1986), the Alabama Supreme Court held that where 'a defendant operates a vehicle in a manner violating motor-vehicle laws, specifically driving-under-the-influence laws, and his driving proximately causes a victim’s death, those particular facts make vehicular homicide a lesser included offense of murder under § 13A-1-9(1) and (4), Ala. Code 1975.

Crawford’s requested jury charge no. 3 was a copy of the vehicular-homicide statute. He asked the court to charge on this offense before the jury retired to consider its verdict; the court refused. The court stated that vehicular homicide was not a lesser-included offense under Crawford’s indictment; it cited Jordan v. State, 486 So.2d 482 (Ala.Crim.App.1985), for the proposition that vehicular homicide can never be a lesser-included offense of murder. However, the Alabama Supreme Court subsequently determined in Ex parte Jordan, that this proposition was too broad and that vehicular homicide can, in some cases, be a lesser offense of murder. The Court stated that the determination must be made after considering the facts of the particular case. The Court held that the failure to charge on vehicular homicide was harmless error in Jordan because the jury had convicted the defendant of the greater offense of murder.

In Ex parte Long, 600 So.2d 982 (Ala.1992), the defendant was charged with intentional murder for killing the victim by running over him with an automobile. The Alabama Supreme Court held that Long’s requested charge on vehicular homicide should have been given, under the facts presented in that case. The Court examined the relative degrees of culpability of the four homicide offenses to determine whether the trial court’s error in refusing the requested charge was harmless and held that murder, manslaughter, vehicular homicide, and criminally negligent homicide are a continuum of murder offenses and that vehicular homicide will ordinarily be a more culpable offense than criminally negligent homicide. The Court concluded that, because the jury had found Long guilty of manslaughter but had been unable to consider the next lesser-included offense, the error was not harmless. In Ex parte Edwards, 816 So.2d 98 (Ala.2001), the Alabama Supreme Court overruled its earlier holding in Long that the culpability for the offense of vehicular homicide falls between criminally negligent homicide and recklessness. The Court in Edivards stated that the mental state for vehicular homicide may be knowing, reckless, or criminally negligent.

The facts of the present case are essentially similar to the facts in Culpepper v. State, 827 So.2d 883 (Ala.Crim.App.2001). In that case, Culpepper drove his truck on the highway after drinking alcoholic beverages. He struck another vehicle and lost control of the truck. Culpepper’s truck then crossed the median and struck a vehicle in an oncoming lane. That vehicle, in turn, struck a motorcycle; the driver of the other vehicle and the driver of the motorcycle were killed. Culpepper’s blood-alcohol level was found to be .150 percent. He was charged with two counts of reckless manslaughter but was found guilty at trial of two counts of criminally negligent homicide. The trial court refused Culpepper’s requested jury charge on vehicular homicide as a lesser included offense. This court held that the trial court’s failure to instruct on vehicular homicide was error and that the error was not harmless because “[njothing in the jury’s verdict supported] the contention that it could not have returned a verdict on the offense of vehicular homicide, had it been given that option.” 827 So.2d at 886-87.

Under the facts of the present case, Crawford also was entitled to a charge on the lesser offense of homicide by vehicle. The trial court’s failure to give the charge was not harmless error because, had the jury been given the option, it might have found Crawford guilty of the lesser offense of vehicular homicide. Therefore, the judgment of the trial court is due to be reversed.

II.

Crawford’s second contention is that the trial court erred by refusing to give him a written copy of its oral jury charge. We are addressing this issue because it could arise in a subsequent trial. Crawford argues that he needed the “exact wording” of the jury charges so that he could explain the “sometimefs] cloudy distinction between murder, manslaughter and criminally negligent homicide” in his closing argument. He cites as authority Anderson v. State, 533 So.2d 714 (Ala.Crim.App.1988), in which the trial court informed the parties that its oral charge would include assault in the second degree. This court found that Anderson was prejudiced because his counsel spent a significant time on this offense in closing argument, and the court then failed to give the anticipated charge.

Rule 21.1, Ala. R.Crim. P., requires the trial court to inform the parties of its rulings on proposed written charges. Here, the trial court fully complied with this requirement by advising the parties of its planned charge and informing them whether their proposed charges would be given or refused. Crawford offers no authority for his claim that the court’s charge should have been provided to him in writing, and he has not offered any evidence that he was prejudiced because he was not provided with a written copy of the anticipated charge. A judgement will not be reversed on a matter of procedure unless it appears that the alleged error has injuriously affected a party’s substantial right. Rule 45, Ala. R.App. P.

Crawford was entitled to a jury instruction on vehicular homicide. Because the instruction was not given and Crawford was prejudiced, the judgment of the circuit court must be reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Subsection (1) of § 13A-1-9 provides that an offense is a lesser-included offense if it is established by proof of the same or fewer than all the facts required to establish the charged offense. Subsection (4) provides that an offense is a lesser-included offense if it differs from the charged offense only in the respect that a lesser kind of culpability suffices to establish its commission.


author: LYONS, Justice.

text:
    Ex parte State of Alabama. (In re James Larry CRAWFORD v. STATE of Alabama).
    1022032.
    Supreme Court of Alabama.
    Feb. 27, 2004.

      William H. Pryor, Jr., atty. gen., and Robin Blevins Scales and John M. Porter, asst, attys. gen., for petitioner.
    Richard D. Horne of Horne & Dailey, L.L.C., Mobile, for respondent.
   LYONS, Justice.

The petition for the writ of certiorari is quashed.

In quashing the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

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