text:
    Bobby CARTER v. PRATTVILLE BOARD OF ZONING ADJUSTMENT.
    2060377.
    Court of Civil Appeals of Alabama.
    June 22, 2007.
    Richard D. Lively, Prattville, for appellant.
    David A. McDowell of McDowell, Faulk & McDowell, LLC, Prattville, for appellee.
   PITTMAN, Judge.

This appeal concerns the jurisdictional requirements for appealing to a circuit court from a decision of a municipal board of zoning adjustment.

On June 14, 2005, at a scheduled meeting, the Prattville Board of Zoning Adjustment (“the Board”) considered a request for a variance to permit the addition of a mobile home to a particular parcel of residential real property located in an “R-3” municipal zoning district, which provides for single-family residences. Upon hearing remarks from the city planner and the requesting party, the Board solicited comments from members of the public; however, after no one spoke for or against the request, the Board voted unanimously to approve it. The Board issued a formal order approving the variance request on the same day.

Section 11-52-81, Ala.Code 1975, provides, in pertinent part, that “[a]ny party aggrieved by any final judgment or decision of [a] board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken.” In such cases, § 11-52-81 provides that the board of adjustment “shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo.”

On June 18, 2005, Bobby Carter sent the Board a letter on behalf of himself and Merrill S. Carter; according to the letter, both Bobby Carter and Merrill Carter reside immediately adjacent to the property as to which the variance request had been granted. In that letter, Bobby Carter requested that his letter be treated as a “notice of appeal to the Circuit Court of the decision of the Board ... entered on June 14, 2005, granting a variance ... to locate a mobile home on” the property adjacent to his. The letter further stated that the appeal was being taken by Bobby Carter and Merrill Carter “on the grounds that [the variance] is in direct violation of the zoning restrictions of the R-3 classification for our area” and that “a mobile home next door will adversely affect our property value.” Although Bobby Carter’s letter had identified the pertinent Board order from which he and Merrill Carter had appealed, the Board sent Bobby Carter a letter on July 26, 2005, stating that “your intent to appeal the variance ... is hereby terminated” on the basis that “your appeal was not filed in Circuit Court before the end of the fifteen day period” set forth in § 11-52-81.

In October 2005, Bobby Carter filed a civil action in the Autauga Circuit Court stating that an actual controversy had arisen between him and the Board regarding the duty of the Board to transmit to the circuit court a record of the proceedings before the Board; Bobby Carter sought a judgment declaring that he had followed the necessary procedure set forth in § 11-52-81 to perfect an appeal from the Board’s June 14, 2005, order and ordering the Board to certify a record of the proceedings before the Board so that the appeal might proceed in the circuit court. The Board filed a motion for a summary judgment, supported by a narrative summary of facts; the variance request; a photograph of the affected property; the minutes of the Board’s June 14, 2005, meeting; a “speakers sign-in sheet” for that meeting; the order granting the requested variance; Bobby Carter’s letter of June 18, 2005; the Board’s letter of July 26, 2005; and an affidavit of the city planner for the City of Prattville, who attended the June 14, 2005, meeting of the Board. Bobby Carter filed a response in opposition to the Board’s motion. After a hearing, the circuit court entered a summary judgment in favor of the Board in which that court opined that Bobby Carter’s appeal from the Board’s order had not been “properly perfected.” Bobby Carter appealed from the summary judgment to this court.

“A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. In reviewing a summary judgment, [an appellate court] will view the evidence in the light most favorable to the nonmoving party and will resolve all reasonable doubts against the moving party.
“The facts in this case are undisputed; therefore, we will review the trial court’s application of the law to those facts to determine whether the [Board was] entitled to a judgment as a matter of law.”

Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997) (citations omitted).

Did the Board, under § 11-52-81, have a statutory duty, as Bobby Carter has contended, to transmit to the circuit court a transcript of the proceedings before the Board regarding its decision to grant the requested variance at issue? We answer that question in the affirmative. The statute provides that a party aggrieved by a final decision of a municipal board of adjustment may, within 15 days of the decision, appeal to the circuit court by filing with the board a written notice of appeal that specifies the particular decision from which the appeal is being taken. The statute further provides that “[i]n case of such appeal ” the board of adjustment is to “cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken” (emphasis added).

This court has consistently resisted efforts to engraft requirements upon an aggrieved party’s right of appeal under § 11-52-81 that exceed those set forth by our legislature. For example, in Bastian v. Board of Zoning Adjustment of Daphne, 708 So.2d 187 (Ala.Civ.App.1997), this court held that payment of a circuit-court docket fee within the 15-day period set forth in § 11-52-81 for taking an appeal from an adverse decision of a board of adjustment was not a jurisdictional prerequisite. 708 So.2d at 188-89. More pertinently, in LaGrange Church of the Nazarene, Inc. v. Board of Zoning Adjustment of Muscle Shoals, 473 So.2d 1076 (Ala.Civ.App.1985), we held that § 11-52-81 did not require service of process upon a board of adjustment in order to perfect an appeal from a decision of that board:

‘We read the plain language of ... § 11-52-81 ... to say that what is required of the aggrieved party to preserve his right to appeal an unfavorable decision by a local zoning board is to file notice of appeal with the board. The filing need not comply with the formal requirements for service of process under Rule 4, [Ala. R. Civ. P.] ... The purpose of the filing is only to give notice to the [b]oard that an appeal is taken. In response to such notice, the [bjoard must file in circuit court a transcript of its proceeding.”

LaGrange Church, 473 So.2d at 1078 (second emphasis added).

The principal cases relied upon by the Board are not to the contrary. In Lindsey v. Board of Adjustment of Gadsden, 358 So.2d 469 (Ala.Civ.App.1978), we held that a party who had not filed a notice of appeal with the pertinent board of adjustment could not properly add himself as a party to the review proceedings in the circuit court:

“[Section 11-52-81] requires that a party aggrieved by a final judgment or decision of a zoning board must appeal to the circuit court within fifteen days of the board’s decision. Lindsey admittedly did not comply with this requirement. In addition, [§ 11-52-81] provides that written notice specifying the judgment or decision appealed from must be filed with the board. The record demonstrates that Lindsey also failed to adhere to this provision since no written notice of appeal was filed with the Gadsden Board of Adjustment.”

358 So.2d at 471. Lindsey, properly read, stands for the proposition that the two requirements for taking an appeal under § 11-52-81 to the circuit court are (a) timely action, i.e., filing a notice within 15 days of the pertinent decision; and, additionally, (b) proper action, ie., filing a written notice specifying the decision appealed from. Lindsey does not state that § 11— 52-81 requires any papers to be filed by the appellant in the circuit court that will hear the appeal. Similarly, our opinion in Board of Adjustment of Midland City v. Evans, 577 So.2d 471 (Ala.Civ.App.1991), clearly indicates that the notice of appeal in that case was filed more than 15 days after the pertinent decision and that the only filing received by the board of adjustment from the aggrieved party was a request that the board reconsider its earlier ruling. 577 So.2d at 472.

Based upon the foregoing authorities, we conclude that the sole jurisdictional prerequisites for appealing from a final decision of a municipal board of adjustment are those recognized in the text of § 11-52-81 itself: the filing “with [the] board ” of “a written notice of appeal specifying the judgment or decision from which the appeal is taken.” Id. (emphasis added). That filing by itself gives rise to a proper appeal, and in response to such a filing, the pertinent board of adjustment must “cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken.” Id. Our interpretation, it should be noted, is consistent with that espoused by Justice Maddox in his special writing in Fulmer v. Board of Zoning Adjustment of Hueytown, 286 Ala. 667, 244 So.2d 797 (1971):

“As I read § 783 of Title 37,[ Ala.Code 1940 (Recomp.1958), the previous codification of § 11-52-81, Ala.Code 1975,] an aggrieved party may appeal from a decision by the Board of Adjustment by filing with the Board a written notice of appeal specifying the judgment or decision from which appeal is taken and once this notice is filed, as it was in this case, the cause is in the jurisdiction of the Circuit Court.
“In my judgment, our statutes do not require that any petition or pleading be filed in the Circuit Court and I do not believe that the general rules of pleading ... are applicable to appeals taken from judgments or decisions of Boards of Adjustment. A check of some of the original records of this Court involving appeals from decisions of Boards of Adjustment indicate that the general practice is that no additional pleadings are filed in the Circuit Court.”

286 Ala. at 671, 244 So.2d at 800 (Maddox, J., concurring specially) (emphasis added).

The summary judgment entered in favor of the Board on Bobby Carter’s claim is reversed, and the cause is remanded for the entry of a judgment, or alternatively for further proceedings, consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . We do not hold that the Board is responsible for paying docketing fees in proceedings under § 11-52-81 simply because it is responsible for transmitting a transcript of its proceedings. Rather, §§ 12-19-70 and 12-19-71, Ala.Code 1975, and Rule 7, Ala. R. Jud. Admin., taken together, envision that the plaintiff in a particular matter should be initially responsible for paying the docket fee. In this case, Bobby Carter is what the common law would have called a “plaintiff in error” in that he, and not the Board, has brought the matter of the Board's decision before the circuit court for its review.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    G.P. v. F.R.
    2060295.
    Court of Civil Appeals of Alabama.
    June 22, 2007.
    Ginger L. Plácente and David K. Plá-cente, Daphne, for appellant.
    J. Byron Brackin III of Brackin, McGriff & Johnson, P.C., Foley, for appel-lee.
   PITTMAN, Judge.

This appeal arises from dependency proceedings originally brought by G.P. (“the grandmother”) in the Baldwin Juvenile Court as to two children, S.R. and S.D. (“the children”), whose mother, F.R. (“the mother”), is the grandmother’s daughter and whose fathers are different men. We dismiss the appeal as untimely.

In January 2005, the grandmother filed a request for emergency relief and a complaint in the juvenile court seeking temporary and permanent custody of each of the children. The grandmother averred that the mother was unfit to retain custody of the children in that, the complaint alleged, the mother had neglected the welfare and best interests of the children by, among other things, rearing the children in an environment of “squalor” and “filth.” The juvenile court assigned separate case numbers as to each child and entered a pickup order immediately placing the children in the grandmother’s custody pending a hearing; however, after an initial ore tenus hearing in late January 2005, temporary custody of the children was placed with a great-aunt of the children, with the Baldwin County Department of Human Resources (“DHR”) being directed to develop a visitation plan for all parties and to conduct home studies as to the grandmother, the mother, and the father of one of the children. The grandmother’s husband, D.P. (“the stepgrandfather”), was permitted to intervene in the actions, and a guardian ad litem (“GAL”) was appointed to represent the interests of the children.

In April 2005, counsel for the grandmother and counsel for the mother, along with an attorney for one of the children’s fathers and the GAL, entered into an interlocutory settlement agreement in open court under which, in pertinent part, the children would be returned to the mother pending the entry of a final judgment, with the grandmother having a “first right of refusal” to be selected as a caregiver when the mother and the particular child’s father could not care for one or both of the children. However, for reasons that are unclear, that settlement, although recited into the record, was not reduced to an order until March 2006. During the period between the transcription of the settlement agreement and the entry of the order, the grandmother filed a motion in August 2005 for a finding of contempt against the mother with respect to her alleged use of other babysitters. Also, the mother filed a motion in October 2005 to terminate all contact by the children with the grandmother and the stepgrandfather on the basis that the children had made sexual-abuse allegations against the step-grandfather, yet were allegedly being forced by the grandmother, against their will, to sleep in the same bed with the stepgrandfather.

The juvenile court held a hearing over two days in February 2006 concerning the pending motions of the grandmother and the mother. After a series of continuances, the juvenile court heard additional testimony as to those motions on December 12, 2006. On December 13, 2006, the juvenile court placed directly on the case-action-summary sheet in both cases a signed, handwritten entry granting the mother’s motion to terminate contact, which also effectively denied the grandmother’s custody claim and her contempt motion. The juvenile court thereby simultaneously both “rendered” and “entered” an appealable order on December 13, 2006, under Rule 58(a) and (c), Ala. R. Civ. P., which was applicable to the two cases at issue. See State Dep’t of Human Res. v. I.P., 874 So.2d 1121, 1123 (Ala.Civ.App.2003), and Dudley v. State Dep’t of Human Res., 555 So.2d 1121, 1121-22 (Ala.Civ.App.1989); see generally Smith v. Jackson, 770 So.2d 1068, 1071-72 (Ala.2000) (discussing the operation of the former version of Rule 58(c)).

Both Rule 28(C), Ala. R. Juv. P., and Rule 4(a)(1)(E), Ala. R.App. P., require a notice of appeal from an order or judgment of the juvenile court to be filed within 14 days of the entry of the pertinent order or judgment. The grandmother did not file a notice of appeal until December 28, 2006, 15 days after the entry of the juvenile court’s December 13, 2006, order. Under Rule 2(a)(1), Ala. R.App. P., “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court” (emphasis added); see also Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) (noting that matters of appellate jurisdiction are of such magnitude that an appellate court will take notice of them at any time). Given this court’s lack of jurisdiction to consider the merits of the appeal, the mother’s request for an award of attorney fees on appeal is denied. See J.W. v. W.D.J., 743 So.2d 467, 469 (Ala.Civ.App.1999) (denying award of attorney fees to appellee when appeal from judgment of juvenile court was dismissed for lack of jurisdiction on appellate court’s own motion).

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.

      . We note that Rule 58(c), Ala. R. Civ. P., was amended effective September 19, 2006, so as to provide that "entry” of a judgment occurs on "the actual date of the input of the order or judgment in the State Judicial Information System” rather than upon "[njotation of a judgment or order ... in the civil docket,” as the rule formerly provided. However, the amendment became effective long after the commencement of the actions at issue in this appeal, and the former rule therefore governs. See Wagner v. White, [Ms. 2050525, February 23, 2007] - So.2d - , - n. 2 (Ala.Civ.App.2007) (citing Lennon v. Petersen, 624 So.2d 171, 172 (Ala.1993)).


author: MOORE, Judge. BRYAN, Judge, THOMAS, Judge,

text:
    V.C. v. C.T. V.C. v. C.T.
    2050356, 2050737.
    Court of Civil Appeals of Alabama.
    June 22, 2007.

      Grant John Scott of The Powell Law Firm, P.C., Andalusia, for appellant.
    Christopher M. Sledge of Woodard, Patel & Sledge, Andalusia, for appellee.
   MOORE, Judge.

In case no. 2050356, the mother, V.C., appeals from a January 2006 judgment transferring custody of S.T., the child, from the mother to C.T., the father, and awarding the mother visitation rights with the child. We dismiss that appeal as having been filed from a nonfinal judgment.

In case no. 2050737, the mother appeals from a May 2006 judgment suspending all of her visitation rights with the child. We reverse that judgment.

Background

The mother and the father have one child, S.T., who was born on March 14, 2000. The mother and the father never married. In a 2001 paternity action instituted by the Covington County Department of Human Resources on behalf of the mother, C.T. was adjudicated to be the father of S.T., ordered to pay child support, and granted visitation with the child.

On October 3, 2005, the father petitioned the juvenile court to transfer custody of the child from the mother to him. Following an ore tenus hearing, the juvenile court entered a judgment on January 23, 2006, awarding custody to the father and granting visitation to the mother. In that same judgment, the juvenile court reserved jurisdiction over the issue of child support, stating:

“It is further ordered that the attorneys file with the Clerk’s office an income affidavit of each one’s respective client, along with a child support guideline worksheet showing the amount of child support that should be ordered, within 14 days; and if [the mother] is of the opinion that the amount of child support according to the guidelines would be manifestly unjust [or] inequitable, the [mother’s attorney] should file a pleading to that effect and the court will set a separate child support hearing on that issue; failing said pleading, the court will order child support in accordance with the guidelines, unless a mutual agreement to the contrary is reached between the parties.”

On January 30, 2006, the mother appealed from the January 23, 2006, judgment, asserting that the juvenile court had exceeded its discretion in transferring custody of the child. That appeal was docketed as case no. 2050356. At the time of her appeal, the juvenile court had not ruled on the pending child-support issue.

While the appeal in case no. 2050356 was pending in this court, the parties filed dueling contempt motions and dueling motions regarding the mother’s visitation rights; the mother filed a motion to modify visitation, and the father filed a motion styled “Emergency Ex Parte Motion for Temporary Relief,” asserting that the child had been physically and verbally abused during periods of visitation with the mother. Those motions were filed under a new civil-action number.

On May 22, 2006, after an ore tenus hearing on all those motions, the juvenile court denied the mother’s motion to modify visitation and granted the father’s motion regarding visitation issues; as a result, the juvenile court suspended all visitation between the mother and the child. The mother appealed from that judgment on June 2, 2006; her appeal was docketed as case no. 2050737. We have consolidated these appeals for the purpose of issuing one opinion.

After the mother filed her notice of appeal in case no. 2050737, the juvenile court continued to exercise jurisdiction over the case. On July 18, 2006, the juvenile court ordered the mother to pay the father $260 per month in child support. On that same date, the juvenile court ordered the father to respond to the mother’s motion requesting supervised visitation; the juvenile court allowed the father 14 days in which to respond. The juvenile court had not ruled on this motion at the time of the completion of the record in these appeals.

Case no. 2050356

In case no. 2050356, we conclude that the mother attempted to appeal from a nonfinal judgment. At the time of her appeal, the juvenile court had not disposed of all the claims between the parties, having reserved jurisdiction over child-support matters. See Newman v. Newman, 957 So.2d 1153, 1154 (Ala.Civ.App.2006) (the trial court’s order, on motion for modification of judgment of divorce, reserving ruling on issue of child support pending the parties’ submission of income affidavits, was not a final order and, thus, was not appealable); Edwards v. Edwards, 951 So.2d 699, 701 (Ala.Civ.App.2006) (“because custody and the related issue of child support are not inherently distinct from other issues arising in a divorce action, an order failing to resolve all of the issues presented in a divorce action may not be made appealable except pursuant to Rule 54(b), Ala. R. Civ. P.” (footnote omitted) ); and Tracy v. Tracy, 939 So.2d 48, 49 (Ala.Civ.App.2006) (“Because the issue of child support has not been fully adjudicated by the trial court, the father has attempted to appeal from a nonfinal order”).

“ “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.’ ” Young v. Sandlin, 703 So.2d 1005, 1008 (Ala.Civ.App.1997) (quoting Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)). Because the mother appealed from a judgment that was not final at the time she filed her notice of appeal, we must dismiss her appeal in case no. 2050356.

Case no. 2050737

We next consider the propriety of the juvenile court’s judgment suspending the mother’s visitation rights.

“It is well settled that matters regarding both custody and visitation rest soundly within the discretion of the trial court, and that judgments regarding those matters will not be disturbed on appeal absent an abuse of discretion. A trial court’s determination regarding visitation must be affirmed absent a finding that the judgment is unsupported by credible evidence and that the judgment, therefore, is plainly and palpably wrong. Visitation cases require an examination of the facts and circumstances of the individual situation, which the trial court is able to observe.”

Denney v. Forbus, 656 So.2d 1205, 1206 (Ala.Civ.App.1995) (citations omitted).

Nevertheless, the law presumes that it is in the best interest of a child to have complete and unrestricted association with his or her parents. See Jackson v. Jackson, [Ms. 2050716, April 13, 2007] — So.2d -, - (Ala.Civ.App.2007) (quoting Johnita M.D. v. David D.D., 191 Misc.2d 301, 303, 740 N.Y.S.2d 811, 813 (Sup.Ct.2002)). When the parents are deemed fit and proper persons, the parents should have reasonable visitation rights. Naylor v. Oden, 415 So.2d 1118 (Ala.Civ.App.1982). As we have recently noted, the reasonableness of visitation rights and any restrictions on visitation depend on the circumstances of the case. Jackson, — So.2d at-. In deciding appropriate restrictions on visitation, “[t]he trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case.” Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003).

A trial court exceeds its discretion when it selects an overly broad restriction on visitation that does more than address a particular threat to the best interests of the child and thereby unduly infringes upon the parent-child relationship. Jackson, — So.2d at -. In Alabama, a total denial of visitation rights has been upheld only rarely. Compare Baugh v. Baugh, 567 So.2d 1358 (Ala.Civ.App.1990) (this court affirmed a divorce judgment denying the father any visitation with his 7-year-old child because he was incarcerated and serving a 20-year prison sentence), with In re Norwood, 445 So.2d 301 (Ala.Civ.App.1984) (reversing the trial court’s judgment that failed to award some restricted or limited visitation privileges to mother who had recently been released from prison for killing the child’s father).

In support of the father’s emergency motion for temporary relief, the juvenile court heard testimony indicating that the mother and the child’s maternal grandmother had engaged in a physical altercation in front of the child on one occasion and that the mother had used curse words in the presence of the child or when referring to the child on one occasion. From this evidence, the juvenile court concluded that the mother had endangered the safety of the child and had verbally abused the child. Based on this factual finding, the juvenile court totally suspended all contact between the mother and the child.

Based on the particular facts of this case, we find that the juvenile court exceeded its discretion in suspending all visitation between the mother and the child. Even in cases in which the court finds that a parent has committed domestic violence, the court may award visitation if the court finds that adequate provision for the safety of the child can be made by taking such measures as requiring supervised visitation, ordering counseling for the perpetrator, and/or compelling the perpetrator to post bond to secure his or her good behavior. See Ala.Code 1975, § 30-3-135. In this particular case, the fundamental rights of the mother and the child required the juvenile court to use these less-drastic means to address its concerns for the child’s safety and to protect the child from verbal abuse before proceeding to a total suspension of the mother’s visitation rights.

We, therefore, reverse the juvenile court’s judgment of May 22, 2006, and remand the case for further proceedings consistent with this opinion.

Conclusion

In case no. 2050356, we dismiss the appeal as being from a nonfinal judgment. In case no. 2050737, we reverse the juvenile court’s judgment suspending the mother’s visitation rights and remand the case for further proceedings consistent with this opinion.

2050356 — APPEAL DISMISSED.

2050737 — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, J., concur in the result, without writings.

BRYAN and THOMAS, JJ., concur in case no. 2050356 and dissent in case no. 2050737, with writings.

BRYAN, Judge,

concurring in case no. 2050356 and dissenting in case no. 2050737.

I concur as to case no. 2050356. However, I respectfully dissent insofar as this court reverses the juvenile court’s judgment suspending the mother’s visitation rights in ease no. 2050737.

The main opinion states that the juvenile court premised its judgment upon evidence of the child’s witnessing her maternal grandmother assault the mother and of the mother’s berating the child with expletives. These were isolated incidents. However, the juvenile court recited further findings of fact that indicate that the mother’s abuse was continual.

In addition to the foregoing, the juvenile court found, among other things, (1) that the mother had assaulted the child by slapping her in the face and pushing her against a wall; (2) that the mother had made verbal threats to kill the father while in the child’s presence; (3) that school officials at the child’s school had referred the child to a counselor because she was upset after visitations with the mother; (4) that the child’s counselor had found the child’s allegations of abuse to be consistent and made a report to the Department of Human Resources (“DHR”) based on those allegations; and (5) that the mother had threatened to punish the child because the child had reported the mother’s actions to DHR. Furthermore, the mother admitted that she had engaged in an argument in which the grandmother threatened the mother with a chair. Based upon the aforementioned evidence presented ore tenus, the juvenile court determined that the best interests of the child would be served by suspending the mother’s visitation rights. See, e.g., Kratz v. Kratz, 791 So.2d 971 (Ala.Civ.App.2000) (affirming the judgment granting visitation rights only at the request of the children when the noncustodial parent had committed acts of domestic violence against the custodial parent and had made verbal threats to kill the custodial parent while in the children’s presence); and Murphy v. Murphy, 624 So.2d 620 (Ala.Civ.App.1993) (affirming the judgment denying “supervised correspondence” with the noncustodial parent and the child when the child had experienced emotional difficulty before the parties’ had separated and had been progressing emotionally after the separation). See also Anonymous v. Anonymous, 620 So.2d 43, 45 (Ala.Civ.App.1993) (quoting Andrews v. Andrews, 520 So.2d 512, 513 (Ala.Civ.App.1987)) (“ ‘Once an ore tenus hearing is held and the visitation rights are determined, the [judgment] is presumed correct. Further, absent a finding that the [judgment] is unsupported by any credible evidence and is plainly and palpably wrong, we will affirm.’ ”).

The main opinion cites § 30-3-135, Ala. Code 1975, for the proposition that the juvenile court could have used less-restrictive means to fashion an award of visitation rights. Section 30-3-135 provides, in pertinent part:

“(a) A court may award visitation by a parent who committed domestic or family violence only if the court finds that adequate provision for the safety of the child and the parent who is a victim of domestic or family violence can be made.
“(b) In a visitation order, a court may take any of the following actions:
“(1) Order an exchange of the child to occur in a protected setting.
“(2) Order visitation supervised in a manner to be determined by the court.
“(3) Order the perpetrator of domestic or family violence to attend and complete to the satisfaction of the court, a program of intervention for perpetrators or other designated counseling as a condition of visitation.
“(4) Order the perpetrator of domestic or family violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding the visitation.
“(5) Order the perpetrator of domestic or family violence to pay a fee to defray the cost of supervised visitation.
“(6) Prohibit overnight visitation.
“(7) Require a bond from the perpetrator of domestic or family violence for the return and safety of the child.
“(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family or domestic violence, or other family or household member.”

(Emphasis added.)

First, § 30-3-135 is permissive; it does not require a court to award visitation to a perpetrator of domestic violence. In cases in which the trial court uses its discretion to award visitation, § 30-3-135(a) permits an award of visitation “only if the court finds that adequate provision for the safety of the child ... can be made.” (Emphasis added.) The juvenile court’s judgment states:

“[T]he court was not made aware of any possibilities of a neutral third party both sides know and trust who could supervise such visits. Nor is there any agency in Covington County which is equipped to handle such visitation in those type circumstances, including Cov-ington County DHR.... [T]he Court is of the opinion that visitations should not resume until such time as [the mother] petitions the Court with a suitable plan for visitation for the Court to consider.”

Consequently, the juvenile court found that adequate provisions for the safety of the child were not made regarding visitation. Accordingly, I respectfully dissent from the main opinion insofar as it reverses the suspension of the mother’s visitation rights.

THOMAS, Judge,

concurring in case no. 2050356 and dissenting in case no. 2050737.

I concur in the dismissal of the appeal in case number 2050356. However, I dissent from the reversal in case number 2050737 because I believe the appeal in that case should also be dismissed.

      . The record before us indicates that the juvenile court did not find either party to be in contempt. Additionally, neither party appealed from the juvenile court's May 22, 2006, judgment as to the contempt motions. Therefore, we do not address on appeal any issues arising from the contempt proceedings.

      . We note that the juvenile court purported to resolve in the second action the issue of the mother's child support, an issue left unresolved in the January 2006 judgment. However, once the mother appealed from the January 2006 judgment, the issue of child support was no longer before the juvenile court. Therefore, to the extent the juvenile court purported to issue a judgment in the second action imposing a child-support obligation against the mother, that judgment is void. See Horton v. Horton, 822 So.2d 431 (Ala.Civ.App.2001).


author: THOMAS, Judge.

text:
    BOYD BROTHERS TRANSPORTATION, INC. v. STATE DEPARTMENT OF REVENUE.
    2050675.
    Court of Civil Appeals of Alabama.
    June 22, 2007.

      James M. Sizemore, Jr., Alexander City, for appellant.
    Troy King, atty. gen., and Henry Chap-pell, chief counsel and asst. atty. gen., and Margaret Johnson McNeill, asst, counsel and asst. atty. gen., Department of Revenue, for appellee.
   THOMAS, Judge.

Boyd Brothers Transportation, Inc., appeals from a summary judgment entered by the Barbour Circuit Court in favor of the State Department of Revenue (“the Department”) in a proceeding for judicial review of an administrative decision upholding a use-tax assessment against Boyd Brothers in the amount of $916,166.95. We reverse.

Factual Background

The facts of this case are undisputed. Boyd Brothers, a Delaware corporation with its corporate headquarters located in Clayton, Alabama, is an interstate motor freight carrier with two terminals in Alabama and three terminals outside Alabama — in Georgia, Mississippi, and Ohio. Between October 1997 and March 2003, Boyd Brothers purchased 740 truck tractors (hereinafter referred to as “trucks”) and 500 truck trailers (hereinafter referred to as “trailers”) from manufacturers that delivered them to Boyd Brothers’ Ohio terminal. The purchases were not subject to Ohio sales or use taxes; Boyd Brothers paid no sales tax to Ohio and no subsequent use tax to any other state.

The first use of the trucks and trailers occurred in Ohio. There, Boyd Brothers serviced the vehicles, applied the appropriate decals and auxiliary equipment, lawfully titled and tagged them, registered them pursuant to the International Registration Plan (“IRP”), and put them into interstate service, delivering freight wherever its customers desired within the 48 contiguous states.

After the vehicles had been in use an average of 400 days, Boyd Brothers assigned 507 trucks (approximately 70% of those purchased during the pertinent tax years) to drivers based in Alabama or used them to haul intrastate loads in Alabama. The trailers were not assigned to particular drivers or to particular trucks during the pertinent tax years. After being assigned to Alabama-based drivers, the trucks remained in the interstate common- and contract-freight carrier business, carrying freight nationwide. Twenty-one percent of the trucks occasionally hauled an intrastate load in Alabama. The Boyd Brothers fleet operated 8% of its miles in Alabama and 92% of its miles outside Alabama during the pertinent tax years.

The Department concluded that the taxable events for purposes of the Alabama use tax were the assignment of a truck to an Alabama-based driver or the use of a truck to haul an intrastate load in Alabama. On 507 trucks that were either assigned to an Alabama-based driver or used to haul an intrastate load, the Department assessed a use tax of two percent of the lesser of the depreciated value of the trucks or the net trade value of the trucks. The Department computed the depreciated value of the trucks by reducing the purchase price by a daily depreciation amount for each of the 400 days that the trucks were used in interstate commerce before they were assigned to an Alabama driver or hauled an intrastate load in Alabama.

Procedural History

In February 2004, the Department entered a final assessment of use tax in the amount of $916,166.95 on 507 trucks and 70% of the trailers that Boyd Brothers had purchased between October 1997 and March 2003. Boyd Brothers paid the tax under protest and timely appealed the final assessment to the Department’s Administrative Law Division. After a hearing, an administrative law judge (“ALJ”) upheld the assessment. Boyd Brothers then appealed to the circuit court. The parties filed cross-motions for a summary judgment and submitted evidence and briefs in support of their motions. The circuit court heard argument on the motions and reviewed the administrative record.

On April 26, 2006, the circuit court denied Boyd Brothers’ motion and granted the Department’s motion, holding that Boyd Brothers had “failed to submit sufficient evidence to rebut the presumption of correctness accorded the final order of the [ALJ].” Boyd Brothers timely appealed to this court.

Standard of Review

The circuit court’s judgment in this case is accorded no presumption of correctness.

“ ‘ “In reviewing the disposition of a motion for summary judgment, ‘[an appellate court] utilizefs] the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that [an appellate court] must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”
‘Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). It has also been observed that “where the facts are not in dispute and we are presented with pure questions of law, [the] standard of review is de novo.” State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000) (citing Ex parte Graham, 702 So.2d 1215 (Ala.1997), and Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994)).’ ”

State Department of Revenue v. Union Tank Car Co., 974 So.2d 1024, 1026-27 (Ala.Civ.App.2007) (quoting Carlisle v. Golden Rod Feed Mill, 883 So.2d 710, 711-12 (Ala.Civ.App.2003)).

Discussion

In Ex parte Fleming Foods of Alabama, Inc., 648 So.2d 577, 579 (Ala.1994), the Alabama Supreme Court explained the nature of the use tax:

“[A] use tax is not a tax on revenues generated from carrying on interstate business, ... but is an excise tax imposed upon the privilege of storing, using, or otherwise consuming tangible personal property purchased at retail outside the state and domiciled in the state. The use tax is not a recurring annual tax, but is a one-time tax levied at the same rate as the sales tax and is complementary to the sales tax.”

The sales tax is levied only upon those sellers “engaged or continuing ... in the business of selling [goods] at retail” within the State of Alabama. § 40-23-2(1), Ala. Code 1975. The seller must add the tax to the purchase price of the retail goods, collect the tax from the purchaser, and remit the tax to the Department. § 40-23-26, Ala.Code 1975. The use tax is complementary to the sales tax and is imposed pursuant to § 40-23-61, Ala.Code 1975.

The use tax “is ... imposed on the storage, use or other consumption in this state of tangible personal property ... purchased at retail ....” § 40-23-61(a), Ala.Code 1975. “Typically, the purchaser is required to remit use tax. Ala.Code 1975, § 40-23-61(d).” Yelverton’s, Inc. v. Jefferson County, 742 So.2d 1216, 1220 (Ala.Civ.App.1997).

“The sales tax statutes apply to retail sales or purchases taking place within the state; the use tax statutes apply to goods purchased at retail outside of the state and brought into the state for use by the purchaser.”

State v. Marmon Indus., Inc., 456 So.2d 798, 800-01 (Ala.Civ.App.1984). “The use tax serves to equalize the burden of the sales tax and to prevent a person from avoiding the sales tax by purchasing goods outside the state.” Ex parte Fleming Foods of Alabama, Inc., 648 So.2d at 578.

“Through this scheme, Alabama ensures a level playing field for its merchants by preventing Alabama residents from leaving the state to acquire tax-free products elsewhere. See State v. Advertiser Co., 257 Ala. 423, [426,] 59 So.2d 576, 577 (1952). In addition, non-resident consumers are encouraged to enter the state to make a purchase because they can avoid paying sales tax in Alabama by removing their property to their state of residence.”

Culverhouse, Inc. v. Alabama Dep’t of Revenue, 358 B.R. 806, 811-12 (M.D.Ala.2006), affirmed, 214 Fed.Appx. 921 (11th Cir.2007) (not selected for publication in F.3d).

The use-tax statutes relevant to this case are subsections (c) and (e) of § 40-23-61, Ala.Code 1975. Those subsections provide, in pertinent part:

“(c) An excise tax is hereby imposed on the storage, use or other consumption in this state of any automotive vehicle or truck trailer, semitrailer or house trailer, ... purchased at retail on or after October 1, 1965, for storage, use or other consumption in this state at the rate of two percent of the sales price of such automotive vehicle, truck trailer, semitrailer or house trailer, ... or the amount of tax collected by the seller, whichever is greater.... ”
“(e) An excise tax is hereby imposed on the classes of tangible personal property, and at the rates imposed on such classes, specified in subsections (a), (b) and (c) of this section, on the storage, use, or other consumption in the performance of a contract in this state of any such tangible personal property, new or used, the tax to be measured by the sales price or the fair and reasonable market value of such tangible personal property when put into use in this state, whichever is less; provided, that the tax imposed by this subsection shall not apply where the taxes imposed by subsection (a), (b), or (c) of this section apply.”

The Department’s auditors determined that Boyd Brothers owed Alabama use tax on the trucks and trailers it purchased at retail in Ohio pursuant to subsection (e). The ALJ determined that Boyd Brothers owed Alabama use tax pursuant to subsection (c) and did not reach the applicability of subsection (e). The circuit court, in determining that use tax was due, cited neither subsection (c) nor subsection (e). On appeal, Boyd Brothers argues that no use tax was due under either subsection (c) or subsection (e). We must, therefore, decide whether the use tax could be properly imposed pursuant to either subsection (c) or subsection (e) of § 40-23-61.

Boyd Brothers makes three arguments on appeal: (1) that the circuit court erred in upholding the imposition of the use tax on a transaction that occurred outside Alabama, when, Boyd Brothers says, if the transaction had occurred in Alabama it would not have been subject to the sales tax; (2) that a use tax cannot be imposed upon a purchase of property that was not, according to Boyd Brothers, intended “for storage, use or other consumption in [Alabama]” pursuant to subsection (c) of § 40-23-61; and (3) that the tax imposed by subsection (e) of § 40-23-61, which applies to interstate commerce, cannot be lawfully imposed upon a transaction that bears no relationship to the taxpayer’s presence in Alabama and is higher than the tax on a similar transaction occurring within Alabama.

The Alabama use tax is not imposed under two circumstances. First, if the Alabama sales tax is imposed on a transaction, then the property on which the sales tax is paid is exempt from the imposition of the use tax. § 40-23-62(1), Ala.Code 1975. Second, if a sales or use tax equal to or greater than the amount of the Alabama tax is imposed on a transaction by another state, then the property that is the subject of the tax is not subject to the Alabama use tax. § 40-23-65, Ala.Code 1975.

I.

Citing State v. Bay Towing & Dredging Co., 265 Ala. 282, 90 So.2d 743 (1956), Boyd Brothers argues that a third circumstance preventing the imposition of the use tax exists by negative implication, namely: that if no sales tax is due on a transaction that occurs in Alabama, then no use tax is due on a similar transaction that occurs outside Alabama. Bay Towing does, indeed, stand for that proposition. In that ease, the supreme court accepted the taxpayer’s argument that “unless property would be subject to the sales tax, had the sale occurred within this state, then the use tax cannot apply when the sale occurs without the state; that the property here involved would not be subject to the sales tax had the sale taken place here, and hence is not subject to the use tax.” 265 Ala. at 286, 90 So.2d at 746. See also State v. Thiokol Chem. Corp., 46 Ala.App. 558, 559, 246 So.2d 447, 448 (Civ.1970), affirmed, 286 Ala. 739, 246 So.2d 454 (1971) (holding that “[s]ince the sales tax and use tax statutes are complementary and are construed in pari materia, the exemption from sales tax would be equally an exemption from use tax”); and State v. Hanna Steel Corp., 276 Ala. 50, 158 So.2d 906 (1963) (holding that, because a machine acquired by the taxpayer in an out-of-state purchase before the effective date of the sales-tax and use-tax statutes, but brought into the state after the effective date of those statutes, would not have been subject to the sales tax on the date of purchase, it was also not subject to the use tax on the date it was brought into the state).

In Bay Towing, the taxpayer made “casual” and “isolated” purchases of used barges from Louisiana and Texas companies that were in the business of hauling oil by barge, but were not regular dealers in barges. 265 Ala. at 285, 90 So.2d at 745. The applicable use-tax statute levied a tax on “ ‘the storage, use or other consumption in this state of tangible personal property purchased at retail ... regardless of whether the retailer is or is not engaged in the business [of dealing in that particular property].’ ” Id. (emphasis added). The applicable sales-tax statute, however, levied a tax upon ‘“every person, firm or corporation engaged, or continuing within this state in business of selling at retail any tangible personal property whatsoever ...’”Id.

Holding that the sales-tax and use-tax provisions must be construed in pari mate-ria, the supreme court stated:

“While the sales tax is levied on the transaction of sale itself and the use tax on the use of property after the sale is completed, it seems clear that the legislature intended that these two tax laws be considered together as embodying one integrated, cohesive system of taxation. We have held them to be complementary, one to the other, and that the two acts should be construed in pari materia.”

Bay Towing, 265 Ala. at 286, 90 So.2d at 746. The court concluded:

“As we see it, if the use tax act is construed as imposing a tax on the use in this state of tangible personal property purchased outside the state in casual and isolated sales transactions, such tax would constitute an unlawful discrimination against interstate commerce, contrary to the Commerce Clause of the United States Constitution, Const, art. 1, § 8, cl. 3, since no similar or equivalent tax burden is imposed in connection with the purchase of such property in casual and isolated sales transactions within the state.”

Id.

Accordingly, Boyd Brothers claims that it owes no use tax on the trucks and trailers it purchased in Ohio and later brought into Alabama because, it says, if the same transaction had occurred in Alabama, it would have incurred no sales tax. In support of that argument, Boyd Brothers relies on § 40-23-2(4), Ala.Code 1975, a provision known as the “drive-out” exemption from the sales tax, and the decision in Culverhouse, Inc. v. Alabama Department of Revenue, supra.

Section 40-23-2(4) provides, in pertinent part:

“Sales of ... trucks, truck trailers, or semitrailers that will be registered or titled outside Alabama, that are exported or removed from Alabama within 72 hours by the purchaser or his or her agent for first use outside Alabama are not subject to the Alabama sales tax.”

(Emphasis added.) The “drive-out” exemption means that a buyer incurs no sales tax on a vehicle that he or she purchases in Alabama if, within 72 hours of the purchase, the buyer removes the vehicle for “first use” outside Alabama.

In Culverhouse, the taxpayer, Culver-house, Inc., an Alabama corporation based in Ariton, purchased trucks and trailers from an Alabama dealer. The trucks and trailers were driven out of Alabama within 72 hours of their purchase and were registered in Oklahoma, where there was no applicable sales or use tax. Culverhouse then leased the trucks and trailers to a freight carrier whose principal place of business was in Georgia. Under the terms of the lease, Culverhouse retained control over the vehicles by directing their transportation activity and by assuming the operating costs associated with their passage.

“Although the [Georgia freight carrier] performed [its] transportation services throughout the United States, the state of Alabama played a significant part in [the] operations. In addition to the control exerted over the vehicles by Culver-house’s Ariton office, many of Culver-house’s drivers were from Alabama, and approximately thirty percent of the trucks’ mileage was traveled within [Alabama].”

358 B.R. at 809. In an apparent attempt to circumvent the drive-out exemption from the sales tax, the Department assessed a use tax on the trucks and trailers. When Culverhouse later filed a petition in bankruptcy, the Department filed a claim for the use tax and Culverhouse objected.

“In its resolution of these issues, the Bankruptcy Court found that the lease executed by Culverhouse triggered use tax liability even though the vehicles were located in Georgia at the time of the lease. In the alternative, the Bankruptcy Court concluded that Culver-house asserted sufficient control over the trucks and trailers during their subsequent journeys into Alabama to justify [the Department’s] exaction of use taxes.”

358 B.R. at 809-10.

The federal district court for the Middle District of Alabama reversed the bankruptcy court’s decision. The court began its analysis by examining the language of the use-tax statute itself, noting that subsection (c) of § 40-23-61 contains four separate elements, namely: “(1) the ‘storage, use or other consumption’ (2) ‘in this state’ (3) of property ‘purchased at retail’ (4) ‘for storage, use or other consumption in this state.’ ” 358 B.R. at 810. The court held that an Alabama company’s exertion of control over property located in another state does not come within the requirement of the fourth element — that the “use” of the property be “in this state.” The court noted that “use” is defined broadly in § 40-23-60(8), Ala.Code 1975, to include

“ ‘[t]he exercise of any right or power over tangible personal property incident to the ownership of that property, or by any transaction where possession is given, except that it shall not include the sale of that property in the regular course of business.’ ”

358 B.R. at 810. The court determined, however, that

“the expansive scope of the statute’s definition of use was meant to cast a wide net over the potential actions taken with regard to taxable property, not to change the breadth of the statute’s geographic coverage.”

Id. at 811. Following that rationale, the court construed the phrase “in this state” to mandate the “physical presence of the property within the state of Alabama at the time of relevant utilization.” 358 B.R. at 813. The court viewed the “time of relevant utilization” as “the first usage of the property.” 358 B.R. at 811 (emphasis added).

In this case, the circuit court erred in determining that Boyd Brothers had “failed to present sufficient evidence to rebut the presumption of correctness accorded the final order of the [ALJ].” Boyd Brothers established that the ALJ’s final order was erroneous as a matter of law. The imposition of a use tax pursuant to subsection (e) was not only at odds with Alabama’s integrated system of sales and use taxation, but it also placed a discriminatory burden on Boyd Brothers’ interstate activity, a burden not shared by taxpayers like Culverhouse, Inc., that comply with the “drive-out” exemption of § 40-23-2(4).

Based on Culverhouse and the authorities cited therein, we cannot escape the conclusion that Alabama may not impose a use-tax burden on a transaction occurring outside Alabama when it fails to impose a complementary sales-tax burden on a legally identical transaction occurring inside Alabama.

II.

Next, Boyd Brothers argues that there was no evidence to support a finding that, when it purchased the trucks and trailers, it intended to use them in Alabama. We agree.

In Culverhouse, the federal district court for the Middle District of Alabama held that subsection (c) of § 40-23-61 “contains an intent element, which requires property to be purchased ‘for storage, use or other consumption in this state.’ ” 358 B.R. at 813.

“This provision, as further defined by the Alabama Administrative Code, exempts from taxation all property put to a real and substantial use outside the state before entering Alabama. Accordingly, the Bankruptcy Court erred in applying the tax to Culverhouse’s use of the vehicles when they were not located within the state of Alabama and by failing to consider whether Culverhouse employed the vehicles in a real and substantial use outside the state before directing their return to Alabama.”

358 B.R. at 813-14. The provision of the Alabama Administrative Code to which the Culverhouse court referred is Rule 810-6-5-25(1), Ala. Admin. Code (Dep’t of Revenue). That rule provides a “safe haven” from the use tax for property purchased outside Alabama “for use outside of Alabama,” in much the same way that the “drive-out” exemption of § 40-23-2(4) provides a safe haven from the sales tax for property purchased inside Alabama. Rule 810-6-5-25(1), which is entitled “Used Property Brought Into Alabama For Use By Owner,” provides, in pertinent part:

“(1) Where the owner of tangible personal property has purchased such property for use outside of Alabama and has, in fact, used it outside of Alabama, no use tax will be due by the owner because of later storage, use or consumption of it in Alabama. The proof of a real and substantial use of the property in another state shall rest upon the purchaser.”

The Culverhouse court stated that Rule 810-6-5-.25(l) “limits the use tax’s applicability to those situations in which property is intended for use in Alabama by examining its initial real and substantial employment.” 358 B.R. at 813 (emphasis added). The undisputed evidence indicated that Boyd Brothers took the following actions in Ohio immediately after delivery of the property in Ohio: it serviced the vehicles, applied the appropriate decals and auxiliary equipment, lawfully titled and tagged them, registered them pursuant to the IRP, loaded them, and put them into interstate freight-carrier service. The vehicles were put to a “real and substantial” use in interstate commerce outside Alabama for 400 days. The fact that the vehicles were used in Alabama 13 months after their purchase is immaterial for purposes of subsection (c) of § 40-23-61. The third and fourth elements of the subsection (c) test must coexist in order for use-tax liability to attach. That is, when the property is “purchased at retail,” the taxpayer must have the intent to “stor[e], use or otherwise eonsum[e]” the property “in this state.” Here there was no evidence indicating that, at the time of the purchase, Boyd Brothers intended to use the trucks and trailers in Alabama. Pursuant to the express language of Rule 810-6-5-.25(l), Boyd Brothers’ “later use” of the trucks and trailers in Alabama did not subject it to use-tax liability.

Citing Ex parte Fleming Foods of Alabama, Inc., supra, the Department argues that “the Alabama Supreme Court has definitively decided the very issue that is currently pending” before this court. Fleming Foods, however, is distinguishable on three key points. There, the taxpayer purchased trucks outside the state, but transported them to Alabama without using them in commerce elsewhere. The taxpayer paid no sales tax on the purchase and the use-tax assessment predated the existence of the “drive-out” exemption to sales-tax liability found in § 40-23-2(4). The taxpayer did not argue the applicability of Rule 810-6-5-25(1).

Because the facts of this case fall squarely within the ambit of Rule 810-6-5-25(1), it is not surprising that the Department’s auditors did not rely on subsection (c) as a basis for imposing the use tax and that the Department conceded to the circuit court that it presented “no evidence ... as to whether or not the trucks were originally purchased for use, storage or consumption in Alabama.” Instead, the Department argued that Boyd Brothers’ intent to use the property in Alabama “[could] be assumed, as the taxpayer is headquartered in Alabama, assigns trucks to Alabama resident drivers, and hauls intrastate loads in Alabama.” That assumption — that a trucking company headquartered in Alabama that buys and first uses property outside Alabama will eventually use some of the property in Alabama, thereby indicating that the company’s intent at the time of purchase was to use the property in Alabama — although not unwarranted as a matter of logic, was insufficient to warrant the entry of a summary judgment in this case because Rule 810-6-5-.25(1) expressly provides that “later storage, use or consumption of [the property] in Alabama” will not, in and of itself, subject the owner to use-tax liability if the owner presents “proof of a real and substantial use of the property in another state.” Boyd Brothers presented such proof. Therefore, to the extent that the circuit court’s entry of the summary judgment in favor of the Department was based on its conclusion that Rule 810-6-5-.25(1) did not apply and that Boyd Brothers owed use tax pursuant to subsection (c) of § 40-23-61, it erred.

III.

Boyd Brothers’ last argument is that the tax imposed by subsection (e) of § 40-23-61, which applies to interstate commerce, cannot be lawfully imposed upon a transaction that bears no relationship to the taxpayer’s presence in Alabama and is higher than the tax on a similar transaction occurring within Alabama.

Subsection (e) provides, in pertinent part:

“(e) An excise tax is hereby imposed ... on the storage, use, or other consumption in the performance of a contract in this state of any such tangible personal property, new or used, the tax to be measured by the sales price or the fair and reasonable market value of such tangible personal property when put into use in this state, whichever is less; provided, that the tax imposed by this subsection shall not apply where the taxes imposed by subsection (a), (b), or (c) of this section apply.”

(Emphasis added.) Under subsection (e), the taxable event, for purposes of the present case, is the use of the property in the performance of a contract in Alabama. The tax imposed by subsection (e) is an unapportioned flat tax — two percent of either the sales price or the fair market value of the property when it is put to use in Alabama, whichever is less — without regard to the number of miles the taxpayer drives in Alabama.

A state may tax an activity in interstate commerce if “(1) there is a substantial nexus between the activity and the taxing state; (2) the tax is fairly apportioned; (3) the tax is nondiseriminatory; and (4) it is reasonably related to services and protection provided by the taxing state.” Ex parte Dixie Tool & Die Co., 537 So.2d 923, 924 (Ala.1988) (citing Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977)).

As part of the apportionment test, the United States Supreme Court has held that a tax must be internally and externally consistent. See Goldberg v. Sweet, 488 U.S. 252, 109 S.Ct. 582, 102 L.Ed.2d 607 (1989). The Court explained:

“[W]e are mindful that the central purpose behind the apportionment requirement is to ensure that each State taxes only its fair share of an interstate transaction .... [W]e determine whether a tax is fairly apportioned by examining whether it is internally and externally consistent.
“To be internally consistent, a tax must be structured so that if every State were to impose an identical tax, no multiple taxation would result. Thus, the internal consistency test focuses on the text of the challenged statute and hypothesizes a situation where other States have passed an identical statute ....
“The external consistency test asks whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the in-state component of the activity being taxed. We thus examine the instate business activity which triggers the taxable event and the practical or economic effect of the tax on that interstate activity....
“It should not be overlooked, moreover, that the external consistency test is essentially a practical inquiry. In previous cases we have endorsed apportionment formulas based upon the miles a bus, train, or truck traveled within the taxing State.”

Goldberg v. Sweet, 488 U.S. at 260-62, 264, 109 S.Ct. 582 (citations omitted).

Citing American Trucking Associations, Inc. v. Scheiner, 483 U.S. 266, 290, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987), Boyd Brothers argues that whenever any flat tax is applied to vehicles moving in interstate commerce it “discriminate[s] against out-of-state vehicles by subjecting them to a much higher charge per mile traveled in the State, and [it does] not even purport to approximate fairly the cost or value of the use of [the State’s] roads.” We agree.

In Scheiner, the Court addressed the validity of two annual flat taxes — a marker fee and an axle fee — imposed by the State of Pennsylvania on the trucking industry. The Court first discussed the fact that its earlier cases had upheld the right of a state to impose flat use taxes if those taxes levied the same tax against all users — both in-state and out-of-state truckers — and were, therefore, facially nondiscriminatory. The Court stated, however, that its more recent Commerce Clause decisions had rejected the earlier approach and had examined the practical effect of flat taxes. With respect to interstate common carriers in particular, the Court held that the methods by which the taxes were assessed contradicted the central purpose of the Commerce Clause because the taxes imposed a much heavier charge per mile of highway use by out-of-state vehicles than by in-state vehicles. The Court explained that, although the state’s highways were theoretically open at all times to all users, in practical effect, Pennsylvania-based carriers drove many more miles in the state than truckers who were based out of state and whose freight hauling was nationwide. The latter group used Pennsylvania highways proportionately less than Pennsylvania-based truckers and, consequently, the flat-tax burden fell heavier on them than on their in-state competitors. The Court held that the Pennsylvania flat taxes

“discriminate against out-of-state vehicles by subjecting them to a much higher charge per mile traveled in the State, and they do not even purport to approximate fairly the cost or value of the use of Pennsylvania’s roads.”

483 U.S. at 290,107 S.Ct. 2829. The Court held:

“Thus, the precedents upholding flat taxes can no longer support the broad proposition, advanced by appellees, that every flat tax for the privilege of using a State’s highways must be upheld even if it has a clearly discriminatory effect on commerce by reason of that commerce’s interstate character. Although out-of-state carriers obtain a privilege to use Pennsylvania’s highways that is nominally equivalent to that which local carriers receive, imposition of the flat taxes for a privilege that is several times more valuable to a local business than to its out-of-state competitors is unquestionably discriminatory and thus offends the Commerce Clause. The great constitutional purpose of the Fathers cannot be defeated by using an apparently neutral ‘guise of taxation which produces the excluding or discriminatory effect.’ ”

483 U.S. at 296, 107 S.Ct. 2829 (quoting Nippert v. Richmond, 327 U.S. 416, 426, 66 S.Ct. 586, 90 L.Ed. 760 (1946)).

The tax levied by subsection (e) of § 40-23-61 suffers from the same kind of defects as the Pennsylvania tax. It is a flat two percent imposition that, the Department’s auditors conceded, was not apportioned based upon actual miles traveled in the performance of a contract in Alabama. That means that a carrier based in Pensacola that makes just one delivery across the state line in Mobile will pay the same two percent of the value of his truck (and will have driven very few miles) as the intrastate carrier that makes daily deliveries and travels thousands of miles annually in Alabama.

The tax imposed by subsection (e) not only discriminates against interstate commerce and burdens taxpayers like Boyd Brothers that drive only eight percent of their mileage in Alabama but, ultimately, harms the State of Alabama by providing interstate carriers with a financial incentive to bypass the state in order to avoid the tax.

The judgment of the Barbour Circuit Court is reversed, and the cause is remanded for proceedings consistent with the principles expressed in this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . See § 32-6-56, Ala.Code 1975. The final order of the administrative law judge in this case explained that "[t]he IRP is a reciprocal motor-vehicle-registration agreement among the states and the Canadian provinces. It requires that a commercial vehicle must be registered in a single state for purposes of apportioning annual license fees among the various jurisdictions in which the vehicle is operated.” See generally American Trucking Ass’ns v. Scheiner, 483 U.S. 266, 271-73, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987).

      . The trailers were not assigned to a specific truck or to a specific driver, and Boyd Brothers did not maintain records showing where the trailers were used. The Department determined that 70% of the trucks were subject to the use tax, and the Department assumed that 70% of the trailers had also been used in Alabama, thereby subjecting those trailers to the use tax.