author: /s/ Drayton Nabers, Jr. Drayton Nabers, Jr. Chief Justice /s/ Harold See Harold See /s/ Champ Lyons, Jr. Champ Lyons, Jr. /s/ Robert B. Harwood, Jr. Robert B. Harwood, Jr. /s/ Thomas A. Woodall Thomas A. Woodall /s/ Lyn Stuart Lyn Stuart /s/ Patricia M. Smith Patricia M. Smith /s/ Michael F. Bolin Michael F. Bolin Associate Justices /s/ Tom Parker Tom Parker Associate Justice

text:
    OPINION OF THE JUSTICES.
    No. 383.
    Supreme Court of Alabama.
    Feb. 16, 2006.
   Members of the House of Representatives

Alabama State House

Montgomery, Alabama 36130

Dear Representatives:

We have received House Resolution No. 123, requesting the opinions of the Justices of the Supreme Court as to whether the constitutional amendment proposed by House Bill 434, if ratified, would violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. House Resolution No. 123 reads as follows:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, House' Bill 434, a copy of which is attached to this resolution and made a part hereof by reference.
“House Bill 434 proposes an amendment to the Constitution of Alabama of 1901, stating that the county-by-county reappraisal of property conducted and supervised by the Department of Revenue pursuant to Chapter 7 of Title 40 of the Code of Alabama 1975, shall not be conducted more often than once every four years in Escambia County, Alabama.
“If ratified, the constitutional provision will impose different intervals of property assessments in ■ Escambia County than are provided for in other parts of the state. Such distinct classification plan raises certain constitutional issues.
“Accordingly, pursuant to Section 12-2-10 of the Code of Alabama 1975, and in deference to this legislative body, so that we may properly and constitutionally dispatch the duties of our office, written opinions are respectfully requested concerning the following important constitutional question regarding this matter:
“If ratified, would the constitutional provision violate the equal protection or due process clause of the 14th Amendment to the Constitution of the United States?”

House Bill 434, proposing an amendment to the Constitution of Alabama of 1901, states, in part:

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. The following amendment to the Constitution of Alabama of 1901, is proposed and shall become valid as a part of the Constitution when all requirements of this act are fulfilled:
“PROPOSED AMENDMENT
“The county-by-county reappraisal of all property in the State of Alabama which is- conducted and supervised by the Department of Revenue pursuant to Chapter 7 of Title 40, Code of Alabama 1975, shall not be conducted more often than once every four years in- Escambia County, Alabama.
“Section 2. An election upon the proposed amendment shall' be held in accordance with Amendment 555 to the Constitution of Alabama of 1901, now appearing as Section 284.01 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, and the election laws of this state.
“Section 3. The appropriate election official shall assign a ballot number for the proposed constitutional amendment on the election ballot and shall set forth the following description of the substance or subject matter of the proposed constitutional amendment:
“ ‘Relating to Escambia County, proposing an amendment to the Constitution of Alabama of 1901, to provide that property in Escambia County, Alabama, would not be subject to reappraisal more often than every four years.’ ”

Section 12-2-10, Ala.Code 1975, provides that “[t]he Governor, by a request in writing, or either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.” In responding to the first request for an advisory opinion, the Justices of the Supreme Court, in considering the constitutionality of the Advisory Opinion Act, Act No. 43, Ala. Acts 1923, now codified at § 12-2-10, stated:

“Interpreting the act according to its manifest effects, these conclusions must, of necessity, prevail: (a) That the act does not at all contemplate the advice or the advisory opinions of the Justices upon any matter relating to the wisdom, desirability, or policy of prospective legislative or executive action; (b) that the merely advisory opinions contemplated are those of the individual Justices, not the Supreme Court of Alabama in its judicial capacity; (c) that specific inquiries, within the intent of the act, must involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature, as distinguished from questions involved in the ascertainment or declaration of private right or interest; (d) and that responses to questions within the purview of the act are designed to be advisory, consultative only, not concluding or binding the Governor or the House or Houses propounding inquiries or the Justices responding thereto.”

Opinion of the Justices No. 1, 209 Ala. 593, 594, 96 So. 487, 488-89 (1923).

Since 1959, it has been the policy of members of this Court to decline to answer an advisory opinion on prospective legislative action involving a question on a local matter. In Opinion of the Justices No. 16k, 269 Ala. 127, 111 So.2d 605 (1959), the Governor had requested an advisory opinion as to whether a proposed constitutional amendment dealing with the levy of special school taxes in Cleburne County was constitutional. The Justices stated:

“Our chief difficulty is whether questions relating to a school tax in a single county ‘involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature,’ ... as to require an advisory opinion.... But we do feel that no more advisory opinions should be issued by the members of this Court when the only questions, constitutional or otherwise, involve purely local matters.”

269 Ala. at 130, 111 So.2d at 608 (quoting Opinion of the Justices No. 1, 209 Ala. at 594, 96 So. at 489). See also Opinion of the Justices No. 3k8, 665 So.2d 1377, 1378 (Ala.1995) (“The Justices [in Opinion of the Justices No. 16k ] wrote that it was difficult to say that questions relating to a single county ‘involve or concern concrete, important constitutional questions upon matters or subjects of a general public nature.’ ” (quoting Opinion of the Justices No. 16k, 269 Ala. at 130, 111 So.2d at 608, quoting Opinion of the Justices No. 1, 209 Ala. at 594, 96 So. at 489)); Opinion of the Justices No. 833, 598 So.2d 1362, 1367 (Ala.1992) (“We note that for almost 30 years it has been the policy of this Court to decline to give advisory opinions on legislation involving purely local matters. ...”); Opinion of the Justices No. 80k, 436 So.2d 832, 833-34 (Ala.1983); Opinion of the Justices No. 207, 287 Ala. 342, 342, 251 So.2d 759, 760 (1971) (declining to issue an advisory opinion because the question involved “purely local matters”); Opinion of the Justices No. 192, 281 Ala. 231, 231, 201 So.2d 103, 104 (1967); and Opinion of the Justices No. 191, 281 Ala. 187, 200 So.2d 486 (1967).

The members of this Court have, however, made exceptions to the policy that they will not render advisory opinions on local matters. First, they have addressed questions concerning local matters when “necessary to decide such matters in developing rationale to answer other questions of an important constitutional nature which involved general laws.” Opinion of the Justices No. 80k, 436 So.2d at 834. See also Opinion of the Justices No. 362, 692 So.2d 828, 829 (Ala.1997); Opinion of the Justices No. 3k8, 665 So.2d at 1378; and Opinion of the Justices No. 333, 598 So.2d at 1367. This exception does not apply in regard to the request currently before us.

Additionally, in Opinion of the Justices No. 333, 598 So.2d at 1367, the Justices made a further exception to this policy when a proposed constitutional amendment involving a local matter required a statewide referendum and affected the funding of the Mobile County School District, which, constitutionally, stood in a unique position in regard to Alabama’s other county school systems. However, it would appear that the proposed constitutional amendment at issue here would not be subject to a statewide vote unless the occurrence of the circumstances outlined in Art. XVIII, § 284.01(d), Ala. Const.1901, were to occur. Moreover, we recognize nothing constitutionally distinct regarding property appraisals in Escambia County that, like the constitutionally unique school-funding situation in Mobile. County, would necessitate that the members of this Court carve out yet another exception to the policy declining to answer questions involving local matters. Instead, “we remain committed to our general policy of not issuing an advisory opinion on purely local matters.” 598 So.2d at 1367.

We further note that “[i]n order for a state taxing classification to withstand a challenge on constitutional grounds under the equal protection clause of the fourteenth amendment, there must be a ‘rational basis’ for the possible discriminatory effect of that tax.” Howell v. Malone, 388 So.2d 908, 911 (Ala.1980). A determination of whether a rational basis exists requires the members of the Court to “inquire (a) whether the classification furthers a proper governmental purpose, and (b) whether the classification is rationally related to that purpose.” State v. Colonial Pipeline Co., 471 So.2d 408, 412 (Ala. Civ.App.1984). An inquiry into the governmental purpose of the proposed amendment, and whether the classification it purportedly creates is rationally related to that purpose, necessarily involves a determination of the ‘“facts which afford a reasonable basis’ ” for the legislature’s action. 471 So.2d at 412 (quoting Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 510, 57 S.Ct. 868, 81 L.Ed. 1245 (1937)). However, there are no facts before us elaborating on the governmental purpose to be served by quadrennial property tax appraisals in Escambia County.

We thus believe that the question posed by your resolution would be best answered in an adversarial proceeding in a trial court. There, parties may conduct discovery and establish the factual basis necessary to address properly the issues raised in your request for an advisory opinion. As the Justices of this Court have previously stated:

“ ‘[I]n the spirit of harmony and cooperation, a majority of the individual Justices have frequently exercised [the] privilege [of giving advisory opinions]. However, this procedure is not without difficulty in that the opportunity is not generally available for opposing views to present their respective positions, nor are pertinent facts presented as is usual in the adversary nature of our judicial system. The Supreme Court’s primary function is one of appellate review, exercised in the context of adversary proceedings. The very nature of our judicial process mandates that decisions be rendered only after all sides have presented their respective views, together with appropriate legal precedent and authority supporting such views....’”

Opinion of the Justices No. 327, 519 So.2d 956, 959 (Ala.1988) (quoting Opinion of the Justices No. 280, 417 So.2d 936, 936-37 (Ala.1981)).

We thus respectfully decline to answer the question posed in your request.

QUESTION DECLINED.

Respectfully Submitted,

/s/ Drayton Nabers, Jr. Drayton Nabers, Jr. Chief Justice

/s/ Harold See Harold See

/s/ Champ Lyons, Jr. Champ Lyons, Jr.

/s/ Robert B. Harwood, Jr. Robert B. Harwood, Jr.

/s/ Thomas A. Woodall Thomas A. Woodall

/s/ Lyn Stuart Lyn Stuart

/s/ Patricia M. Smith Patricia M. Smith

/s/ Michael F. Bolin Michael F. Bolin Associate Justices

Members of the House of Representatives

Alabama State House

Montgomery, Alabama 36130

Dear Representatives:

I have received the House of Representatives’ request for the opinion of the Justices of the Supreme Court as to whether the constitutional amendment proposed by House Bill 434, if ratified, would violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. After clarifying the nature and scope of advisory opinions of the Alabama Supreme Court, I answer the question in part below.

I. The Nature of an Advisory Opinion

Under Alabama law, the Governor or the legislature may petition the Justices of the Alabama Supreme Court for a written opinion on important constitutional questions:

“The Governor, by a request in writing, or either house of the Legislature, by a resolution of such house, may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.”

§ 12-2-10, Ala.Code 1975. These advisory opinions express the individual views of the Justices of the Court rather than the view of the Court itself — even where every member of the Court has joined in a single advisory opinion. Thus, advisory opinions do not bind those who request them, and their precedential authority is merely persuasive.

Nevertheless, an advisory opinion may still be very useful as an indicator of how the Court is likely to rule in a case before it in which the same issues are raised. Consequently, I am inclined to answer a question posed by a request by the Governor or the legislature for an advisory opinion on an important constitutional question, even when, as in this case, the advisory opinion must be incomplete because of limited information made available with the request.

II. The Legislature’s Request

If ratified as a local constitutional amendment, House Bill 434 would provide that real property in Escambia County be subject to reappraisals for tax purposes at most once every four years. The bill makes no reference to the other counties of the State, which, at the time of this advisory opinion, are in the process of converting to some form of annual tax reappraisal from the previous method of tax appraisals every four years following a 2003 directive from the Alabama Department of Revenue.

Consequently, unless the Department of Revenue reverses its directive, an event not precluded under Alabama law, or the legislature passes a general law requiring the Department of Revenue to restore the quadrennial tax appraisals statewide, the ratification of the constitutional amendment proposed by House Bill 434 would result in the residents of one county, Es-cambia, facing property-tax reappraisals every four years while the residents of every other Alabama county face tax reappraisals every year.

Concerned that the resulting disparity of the frequency in appraisals might be unconstitutional, the House of Representatives has asked the Justices of this Court for an advisory opinion, posing the following question:

“If ratified, would the constitutional provision violate the equal protection or due process clause of 'the 14th Amendment to the Constitution of the United States?”

Because the question addresses the constitutional import of disparate treatment between one county and the rest of the State, the question does not involve purely a local matter. Moreover, this subject matter is capable of repetition in other proposed local constitutional amendments. Accordingly, my response follows.

III. The Answer to the Legislature

The Founding Fathers believed that human rights were God-given and inalienable but also frequently usurped by civil government. To help protect against such usurpation, the Founders enumerated some of these rights in the first 10 amendments to the Constitution and later in subsequent amendments. Among the later amendments was the Fourteenth, which states, in relevant part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

(Emphasis supplied.)

A. The Due Process Clause

Because the legislature’s question regarding possible infringement of the Due Process Clause of the Fourteenth Amendment to the United States Constitution can be answered more easily than its question regarding the Equal Protection Clause, I will respond to it first and then address the possible infringement of the Equal Protection Clause.

The Justices of the Alabama Supreme Court have previously issued advisory opinions on the constitutionality under the Due Process Clause of the Fourteenth Amendment of a variety of proposed bills. See, e.g., Opinion of the Justices No. 32, 230 Ala. 543, 162 So. 123 (1935); Opinion of the Justices No. 96, 252 Ala. 351, 40 So.2d 849 (1949); Opinion of the Justices No. 102, 252 Ala. 527, 41 So.2d 775 (1949); Opinion of the Justices No. 106, 252 Ala. 559,. 42 So.2d 56 (1949); Opinion of the Justices No. 155, 264 Ala. 452, 88 So.2d 778 (1956); Opinion of the Justices No. 168, 270 Ala. 42, 115 So.2d 475 (1959); Opinion of the Justices No. 181, 277 Ala. 630, 173 So.2d 793 (1965); Opinion of the Justices No. 20k, 287 Ala. 331, 251 So.2d 749 (1971); Opinion of the Justices No. 215, 294 Ala. 555, 319 So.2d 682 (1975); Opinion of the Justices No. 216, 294 Ala. 571, 319 So.2d 699 (1975); Opinion of the Justices No. 222, 333 So.2d 125 (Ala.1976); Opinion of the Justices No. 238, 345 So.2d 1354 (Ala.1977); and Opinion of the Justices No. 262, 373 So.2d 293 (Ala.1979).

As currently drafted, the proposed local constitutional amendment does not deprive any person of life. Nor does it deprive any person of liberty. Provided the proposed amendment is duly ratified according to the Alabama Constitution, it also does not deprive any person of property without due process of law. Accordingly, I conclude the proposed constitutional amendment does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

B. The Equal Protection Clause

The Justices of the Alabama Supreme Court have also previously issued advisory opinions on the constitutionality under the Equal Protection Clause of the Fourteenth Amendment of proposed bills on a variety of topics. See, e.g., Opinion of the Justices No. 106, 252 Ala. 559, 42 So.2d 56 (1949); Opinion of the Justices No. 138, 262 Ala. 345, 81 So.2d 277 (1955); Opinion of the Justices No. 181, 277 Ala. 630, 173 So.2d 793 (1965); Opinion of the Justices No. 18k, 278 Ala. 412, 178 So.2d 641 (1965); Opinion of the Justices No. 278, 403 So.2d 197 (Ala.1981); Opinion of the Justices No. 293, 410 So.2d 60 (Ala. 1982); and Opinion of the Justices No. 31k, 468 So.2d 883 (Ala.1985).

Consequently, there is no general prohibition against issuing a similar advisory opinion in this instance as well. Before responding to the equal-protection question directly, however, I will supply some historical legal context for the current property-appraisal and property-tax system in Alabama.

Alabama changed its property-tax system after a three-judge panel in Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala. 1971), held that Alabama’s then existing property-tax system was unconstitutional. Amendment No. 325, proposed by Act-No. 116, Ala. Acts 1971 (3d Spec. Sess.), and proclaimed ratified on June 8, 1972, and now appearing as § 217, Ala. Const. 1901 (Recomp.), establishes different classes of property for property-tax purposes. The property-classification system promulgated by Amendment No. 325 was upheld in Weissinger v. White, 733 F.2d 802 (11th Cir.1984). Act No. 160, Ala. Acts 1971 (3d Spec. Sess.), codified as Ala.Code 1975, § 40-7-60 et seq., established a system for statewide property reappraisal.

Alabama’s constitutional provisions on property taxes also already allow for some variation among counties. § 217, Ala. Const. 1901 (Recomp.) (Amendments No. 325 and No. 373). For example, § 217(c) authorizes counties and municipalities to increase or decrease the assessment ratio applicable to any class of property. “Such assessment ratios as herein authorized may vary among taxing authorities so long as each such assessment ratio is uniform within a taxing, authority.”

In addition, § 217(i) exempts the municipalities of Mountain Brook, Vestavia Hills, and Huntsville from the caps imposed on the ad valorem taxes as a percentage of “the fair and reasonable market value of such taxable property in any one ad valo-rem tax year....” Furthermore, § 217(Z) authorizes counties to impose a one-time “additional ad valorem tax of not more than two mills on all taxable property located in the taxing authority in order to reimburse itself for its payment of such costs of reappraisal.... ”

It is clear from each of these examples that Alabama’s property-tax system does not mandate uniformity. Instead, it allows for. variation based on local needs and circumstances.

Similarly, the United States Supreme Court has recognized that property appraisals need not be uniform or be kept precisely current at a given time:

“Just as [the Equal Protection] Clause tolerates occasional errors of state law or mistakes in judgment when valuing property for tax purposes, it- does not require immediate general adjustment on the basis of the latest market developments. In each case, the constitutional •requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners.”

Allegheny Pittsburgh Coal Co. v. County Comm’n of Webster County, West Virginia, 488 U.S. 336, 343-44, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)(internal citations omitted)(emphasis added). Although there should be uniformity in treatment within a taxing authority, § 211, Ala. Const. 1901 (Recomp.), there is some room for differences between separate taxing authorities:

“[Although] distinctions based on geographical areas are not, in and of themselves, violative of the Fourteenth Amendment, Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954), a state must demonstrate, if it wishes to establish different classes of property based upon different geographical localities — e.g.,- rural areas as opposed to urban areas — that the classification is neither capricious nor arbitrary but rests upon some reasonable consideration of difference or policy. State Board of Tax Comm’rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 75 L.Ed. 1248 (1931).”

Weissinger, 330 F.Supp. at 623-24. However, according to the United States Supreme Court, there must be a rational basis for any such differences between taxing authorities:

“The appropriate standard of review is whether the difference in treatment ... rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. This standard is especially deferential in the context of classifications made by complex tax laws. ‘[I]n structuring internal taxation schemes “the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” ’ ”

Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (citations omitted).

The above examples and standards may be applied to the proposed constitutional amendment. And, because the “rational basis” standard is usually not a difficult one for a civil government authority to meet, I have little doubt that a rational basis could be established for the proposed constitutional amendment. But “could be established” and “are established” are clearly not the same, and I agree with my fellow Justices, who today are responding separately to the request for an advisory opinion, that, because we are limited to the documents supplied to us by the legislature in its request for an advisory opinion, “there are no facts before us elaborating on the governmental purpose to be served,” 925 So.2d at 197, by returning to quadrennial tax appraisals in Escambia County alone. We are not told anything about the cost to implement an annual reappraisal program in Escambia County, the rate of the growth of property values in Escambia County, distinct land-use patterns, the projected net effects of the implementation of such a program, or any of the many other conceivable bases for this local constitutional amendment.

“To be sure, the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification. United States Railroad Retirement Bd. v. Fritz, 449 U.S. [166], at 179 [(1980)]. See also McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 809 (1969) (legitimate state purpose may be ascertained even when the legislative or administrative history is silent). Nevertheless, this Court’s review does require that a purpose may conceivably or ‘may reasonably have been the purpose and policy’ of the relevant governmental de-cisionmaker.”

Nordlinger v. Hahn, 505 U.S. at 15. But without such information — ordinarily supplied to the Court as the result of a trial below, with witnesses, or by briefs — there is no information before us to demonstrate the rational basis of the proposed constitutional amendment. Therefore, like the other Justices in their separate response to the legislature’s request for an advisory opinion, I am ultimately unable to answer the legislature’s question regarding the Equal Protection Clause.

IV. Conclusion

The proposed legislation does not violate the Due Process Clause of the Fourteenth Amendment. It may also not violate the Equal Protection Clause of the Fourteenth Amendment, but the legislature has not supplied sufficient facts for a full review of that question.

QUESTION ANSWERED IN PART; DECLINED IN PART.

Respectfully submitted,

/s/ Tom Parker Tom Parker Associate Justice

      . Article XVIII, § 284.01, Ala. Const. 1901 (Amend.No.555), provides, in part:
      "(a) Any proposed constitutional amendment which affects or applies to only one county shall be adopted as a valid part of the constitution by a favorable vote of a majority of the qualified electors of the affected county who vote on the amendment. ...

      "(d) In the event any constitutional amendment proposed for adoption pursuant to this amendment is approved by at least a three-fifths vote of the elected members of each house of the Legislature but with one or more dissenting votes cast, the amendment shall be treated as a statewide amendment as described in subsection (e).
      "(e) If after having been approved by at least a three-fifths vote of the elected members of each house of the Legislature without a dissenting vote cast the proposed amendment is not approved by a majority vote the Local Constitutional Amendment Commission, it shall automatically be submitted in a statewide referendum in accordance with the procedures for proposed statewide constitutional amendments under Sections 284 and 285 of the Constitution of Alabama of 1901.... ”

      . Ala. Const. 1901, § 284.01 (Recomp.) (Amend. No. 425 and Amend. No. 555).

      . Under Alabama law, the Department of Revenue is authorized to "prescribe for the counties the procedures to be followed” and the "standards to be met" for property appraisals. § 40-7-63, Ala.Code 1975. For their part, the counties are required to follow the standards established by the Department of Revenue in appraising property according to its "fair and reasonable market value.” § 40-7-62, Ala.Code 1975. Before the 2003 directive requiring annual reappraisals, the practice in nearly every county was to appraise property for tax purposes only once every four years.

      . I recognize that various glosses have been applied to justify more elaborate interpretations of the Due Process Clause. However, I do not consider them to have any application here and thus see no reason to discuss them.

      . Even under the statewide system established by the Department of Revenue pursuant to Act No. 160, there were some differences among counties on the frequency of property reappraisals. For example, Montgomery County began annual reappraisals before the Alabama Department of Revenue's 2003 directive requiring all counties to transition to annual reappraisals over the course of five years.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    ALABAMA STATE BOARD OF PHARMACY v. Bobby Dale HOLMES.
    2030949.
    Court of Civil Appeals of Alabama.
    Sept. 23, 2005.

      James S. Ward of Ward, Parmer & Wilson, L.L.C., Birmingham, for appellant.
    Paul W. Brunson, Jr., Clayton, for ap-pellee.
   BRYAN, Judge.

The Alabama State Board of Pharmacy (“the Board”) appeals from the judgment of the Houston Circuit Court reducing the Board’s punishment of pharmacist Bobby Dale Holmes. We reverse and remand with instructions.

On October 24, 2003, the Board filed an administrative complaint against Holmes and issued an emergency suspension of Holmes’s license to practice pharmacy. The complaint alleged that Holmes had violated various provisions of the Alabama Pharmacy Practice Act (“the PPA”), § 34-23-1 et seq., Ala.Code 1975; the Alabama Uniform Controlled Substances Act, § 20-2-1 et seq., Ala.Code 1975; and § 13A-12-211, Ala.Code 1975, a part of the Alabama Criminal Code.

The Board received evidence regarding the charges on January 20, 2004. On February 4, 2004, the Board entered an order finding that Holmes, while working as a pharmacist at a CVS pharmacy, had dispensed controlled substances to customer R.C. without a prescription; had not provided proper records of that dispensing; and had illegally dispensed, without valid prescriptions, large amounts of controlled substances to M.H. in both M.H.’s name and in the name of M.H.’s wife, J.H. The Board also found that Holmes, while working as supervising pharmacist of Southern Home Respiratory, Inc. (“Southern Home”), had allowed nonpharmacists to have keys to the pharmacy and to have access to the prescription area without the presence of a pharmacist; had failed to include upon prescriptions the prescription number, the date dispensed, and the initials of the person who compounded the prescription; had failed to properly store oxygen cylinders; and had “failed in his duties as supervising pharmacist.” The Board also found that Southern Home’s prescription area did not meet requisite size standards and that the Board’s audit of the CVS pharmacy at which Holmes worked had revealed a “very large shortage” of controlled substances. Based upon those factual findings, the Board found that Holmes had committed numerous statutory violations, including 16 violations of the PPA. Specifically, the order found that Holmes had violated § 34-23-33(2), (7), and (12), Ala.Code 1975; § 34-23-70(a), Ala.Code 1975; § 34-23-71, Ala. Code 1975; § 34-23-131(a), Ala.Code 1975; § 20-2-54(a)(4), Ala.Code 1975; § 20-2-58(a), (d)(l)-(2), and (e), Ala.Code 1975; § 20-2-71(a)(l) ■ and (3), Ala.Code 1975; and § 13A-12-211, Ala.Code 1975.

Based upon those findings, the Board’s order revoked Holmes’s license to practice pharmacy in Alabama and levied against him an administrative fine of $16,000. Holmes subsequently appealed the Board’s order to the circuit court. On appeal to the circuit court, Holmes argued, among other things, that the Board’s punishment was unreasonable, ■ arbitrary, ■ and capricious. On June 24, 2004, the circuit court entered a judgment that reinstated Holmes’s license to practice pharmacy, placed him on probation for a period of no more than five years, and reduced his administrative fine to $5,000. In support of its decision to reduce Holmes’s punishment, the circuit court cited a recent order of the Board in which a pharmacist who had dispensed unauthorized prescriptions for controlled substances had received probation and a $8,250 administrative fine. The Board timely appealed the circuit court’s judgment to this court.

The following additional factual background is pertinent to our review. Evidence introduced at the Board hearing showed that, during a roughly 11-month period in 2002 and 2003, Holmes dispensed a combined average of 16.68 hydrocodone and OxyContin narcotic pain-relief. pills per day to M.H. Evidence also revealed that, during roughly the same period, Holmes -dispensed a combined average of 17.76 hydrocodone and OxyContin pills per day in J.H.’s name.

According to CVS records, M.H.’s and J.H.’s prescriptions for hydrocodone and OxyContin were prescribed by N.H., a psychiatrist. N.H. testified that he did not authorize any hydrocodone or OxyContin prescriptions for M.H., who is the stepfather of N.H.’s wife. N.H. further testified that neither M.H. nor J.H. had ever been a patient of his. He testified that, although he may have written a few prescriptions for J.H.,-he did not-write or authorize “the vast majority” of J.H.’s hydrocodone and OxyContin prescriptions attributed to him.

J.H. testified that, although there were numerous hydrocodone and OxyContin prescriptions in her name, she never had possession of those prescriptions, she never filled those prescriptions at CVS, and she never received the hydrocodone or Ox-yContin pills allegedly prescribed by N.H. She stated that her husband M.H. had told her that Holmes had put prescriptions in her name “to get [them] out of the store.” J.H. further testified that her husband had told her that he was paying Holmes for pain relievers. She testified that M.H. had recently entered rehabilitation treatment for drug addiction and that OxyCon-tin was one of his drugs of choice. According to J.H., Holmes never contacted her about the numerous prescriptions for pain relievers being filled in her name. She testified that she believed that Holmes knew of her husband’s drug addiction.

Holmes testified that it is inappropriate to dispense to an individual an average of 17 pain relievers per day, but he noted that “he never sat down and divided it out ... to come up with those figures.” Holmes testified that he could not remember ever asking N.H. about the numerous prescriptions for pain relievers that he had supposedly authorized for M.H. and J.H.

Section 41-22-20(k), Ala.Code 1975, controls judicial review of agency decisions. In pertinent part, it provides:

- “(k)'Except where judicial review is by trial de novo, thé agency order shall be taken as -prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.... The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Our supreme court has stated:

“This Court has further defined the standard of review of an agency ruling in Alabama as follows:
“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d 1093, 1096-97 (Ala. 2004) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ. App.1989)). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). “A presumption of correctness attaches to the decision of an administrative agency due to its recognized expertise in a specific, specialized area.” Hall v. Alabama Alcoholic Beverage Control Bd., 631 So.2d 1047, 1048 (AIa.Civ.App.1993). Further, this court reviews a trial court’s judgment without a presumption of correctness because the trial court is in no better position to review an agency’s decision than this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala. Civ.App.1994).

On appeal, the only issue before this court is whether the Board’s discipline of Holmes — revoking his license to practice pharmacy and fining him $16,000 — -is supported by substantial evidence, is reasonable, and is within the Board’s statutory and constitutional powers. Holmes argues, as he did before the circuit court, that the punishment imposed by the Board is arbitrary, capricious, and unreasonable because, he says, his punishment is more severe than the punishment imposed by the Board in a similar case. However, “[t]he employment of a sanction within the authority of an administrative agency is ... not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases.” Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 187, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973). See also Lowry v. SEC, 340 F.3d 501, 507 (8th Cir.2003) (rejecting appellant’s argument that an administrative agency’s punishment was unreasonable merely because it was disproportionate to punishment in other cases); and Newell Recycling Co. v. ERA, 231 F.3d 204, 210 (5th Cir.2000) (stating that an administrative agency’s punishment need not resemble punishment assessed in similar cases).

Section 34-23-92(12), Ala.Code 1975, authorizes the Board “to investigate alleged violations of [the PPA] ... and conduct hearings to revoke, suspend or probate any license or permit granted by the [BJoard ... and to invoke penalties not to exceed the sum of $1,000.00 for each violation(s).... ” The Board has the statutory authority to revoke Holmes’s license and to fine him $16,000, i.e., $1,000 for each violation of the PPA. The statute does not require the Board to impose identical punishment in every case. The Board’s punishment of Holmes, although harsh, was supported by substantial evidence, was reasonable, and was within its statutory and constitutional powers. The evidence before the Board reveals that Holmes illegally dispensed copious amounts of controlled substances. The record further reveals several instances of irresponsible, illegal conduct by Holmes as a pharmacist and supervising pharmacist. The Board acted within its discretion by revoking Holmes’s license and fining him $16,000.

Accordingly, we reverse the circuit court’s judgment, and we remand the case to the circuit court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: MURDOCK, Judge.

text:
    Ernest L. MOLLOHAN v. Cynthia R. Mollohan JELLEY.
    2030282.
    Court of Civil Appeals of Alabama.
    Sept. 30, 2005.

      Stanley E. Munsey of Stanley E. Mun-sey & Associates, P.C., Tuscumbia, for appellant.
    James M. Smith, Montgomery, for ap-pellee.
   MURDOCK, Judge.

Ernest L. Mollohan (“the father”) appeals from a judgment of the Colbert Circuit Court registering a North Carolina judgment that ordered him to pay $72,200 in child-support arrearages to Cynthia R. Mollohan Jelley (“the mother”).

The father and the mother were divorced in the State of Washington in 1978. The mother was awarded custody of the parties’ two children, and the father was ordered to pay child support in the amount of $100 per month per child.

In 1978, the mother moved with the children to North Carolina, the state in which she had grown up and in which her parents still resided. On February 19, 1980, she filed a complaint in the district court of New Hanover County, North Carolina, in which she sought to enforce the Washington divorce judgment insofar as it related to the father’s child-support obligation.

The father hired a North Carolina attorney, who filed an answer and an affidavit on behalf of the father, both of which were ostensibly signed by the father. The father denies that he signed those documents and also denies that he authorized the attorney to file either' of those documents on his behalf. The father asserts that he hired the North Carolina attorney for the limited purpose of negotiating an agreement to acquiesce in the assertion of jurisdiction by the North Carolina court with respect to the matters of child custody and child support. He asserts that he was not aware that an action had actually been filed in the North Carolina court and that he did not authorize the North Carolina attorney to make an appearance on his behalf in the North Carolina action filed by the mother. While the North Carolina action was pending, the father’s attorney withdrew from representation of the father on the ground that the father had not paid him and had not cooperated with the attorney. This withdrawal was approved by the North Carolina court.

Following a hearing in June 1980, at which the father did not appear and was not represented, the North Carolina court entered a judgment that found that the father had been properly served with the summons and complaint when the father’s attorney accepted service, that the father had made a general appearance through the filing of an answer by his attorney, and that the court had jurisdiction over the parties and of the subject matter. The 1980 North Carolina judgment modified and superseded the 1978 Washington judgment of divorce, included a finding of a substantial change in circumstances sufficient to warrant an increase in child support, and increased the father’s child-support obligation to $500 per month until both children reached the age of majority. The parties’ younger child reached the age of majority on April 12,1993.

The mother filed the present action in the Colbert Circuit Court on February 10, 2003, seeking to register the 1980 North Carolina judgment and to collect unpaid child support. Attached to the complaint was an affidavit of the mother alleging that the father had paid “no more than $20,000” in child support after July 1, 1980, and that the amount of the principal arrearage was $72,200. The father filed a motion to vacate the North Carolina judgment based on the lack of personal jurisdiction by the North Carolina court, improper service of process in the North Carolina action, payment in full, and the statute of limitations. He also filed a motion to dismiss based on the mother’s alleged unclean hands because she had allegedly violated the North Carolina judgment by taking the children out of state without necessary approvals. The unclean-hands issue is not pursued in this appeal.

On April 29, 2003, the trial court held an ore tenus proceeding at which it heard testimony from both parties and from the parties’ son. The trial court also received documents, including certified copies of certain pleadings from the Washington and North Carolina proceedings, canceled checks, payroll statements, and other financial records, and an arrearage calculation submitted by the mother.

The father testified that he did not receive notice of the June 1980 hearing in the North Carolina action until a week or so after it had been held. He admitted, however, that he received a copy of the North Carolina judgment in August 1980. He also admitted that he had taken no action to challenge, set aside, or modify the North Carolina judgment in the 23 years between the time it was entered and the filing by the mother of the present action in Alabama.

On August 21, 2003, the trial court entered an order that denied the father’s motion to vacate the North Carolina judgment “based on the evidence submitted to this court,” and it entered a judgment against the father in the amount of $72,200 in unpaid child support. The judgment did not set forth the trial court’s basis for its calculation of the amount of the arrear-age. The trial court denied the mother’s request for interest on the arrearage.

Both parties filed timely postjudgment motions; both motions were denied. The father filed a timely appeal; the mother has not appealed the trial court’s denial of interest on the arrearage and, therefore, any issue as to the propriety of this denial is not before us.

Because the trial court heard oral testimony, the ore tenus rule applies.

“Where a trial court receives ore ten-us evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This ‘presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demean- or.’ Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). In addition, when the trial court’s judgment does not make specific findings of fact, this court must assume that the trial court made those findings of fact necessary to support its judgment. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala. Civ.App.2000).”

Amaro v. Amaro, 843 So.2d 787, 790-91 (Ala.Civ.App.2002).

The Alabama Uniform Interstate Family Support Act addresses the registration and enforcement of foreign child-support judgments. See Ala.Code 1975, §§ 30-3A-101 through -906. Section 30-3A-605, Ala.Code 1975, provides for registration of a foreign child-support judgment. Section 30-3A-607(a), Ala.Code 1975, prescribes various defenses to the registration and enforcement of a foreign child-support judgment, including the following: “(1) the issuing tribunal lacked personal jurisdiction over the contesting party [in this case, the father].”

The father argues that the judgment entered by the North Carolina court in 1980 is void because the North Carolina court lacked personal jurisdiction over him. He also argues that the trial court erred in awarding $72,200 in arrearages because (a) the applicable statute of limitations is 10 years and, consequently, the mother was not entitled to recover for any arrearage that accrued prior to February 10, 1993, and (b) the evidence presented to the trial court does not support an award of $72,200 for the period from February 10, 1993, to the date of the trial court’s judgment.

As to the father’s argument concerning the North Carolina court’s lack of jurisdiction over him, the father argues that the North Carolina judgment was void because the father did not have sufficient contacts with the State of North Carolina in 1980 when that judgment was entered and because the mother’s complaint in that action was not properly served on him. The mother responds by noting, correctly, that the father’s attorney filed an answer on the father’s behalf without raising the jurisdictional defenses asserted by the father. Under North Carolina law, the authorized filing of an answer or general appearance without alleging jurisdictional defenses constitutes a waiver of those defenses. In re Blalock, 233 N.C. 493, 64 S.E.2d 848 (1951); Barnes v. Wells, 165 N.C.App. 575, 599 S.E.2d 585 (2004) (discussion of cases on waiver by general appearance); and M.G. Newell Co. v. Wy-rick, 91 N.C.App. 98, 370 S.E.2d 431 (1988). The father responds to the mother’s argument by contending that the filing of the answer by his North Carolina counsel was not authorized by him and, therefore, was ineffective to waive his jurisdictional defenses.

The issue whether the father authorized his attorney to appear in the North Carolina litigation and to file an answer on his behalf is a factual issue. Nonetheless, the resolution of this factual issue begins with a presumption under North Carolina law that the actions taken by an attorney on behalf of a client in appearing in a lawsuit and filing an answer on the client’s behalf are authorized by the client. See Howard v. Boyce, 254 N.C. 255, 263, 118 S.E.2d 897, 903 (1961) (consent judgment “is presumed to have been rightfully entered until the contrary is made to appear”); Guilford County v. Eller, 146 N.C.App. 579, 581, 553 S.E.2d 235, 237 (2001) (“when an attorney acts on behalf of his client, a presumption arises that the attorney so acts within his authority and with the consent of the client”); Owens v. Voncannon, 251 N.C. 351, 354, 111 S.E.2d 700, 702 (1959) (consent by an attorney of record is presumed to be valid and the burden is on the one who challenges its validity); and Henderson v. Wachovia Bank of North Carolina, 145 N.C.App. 621, 551 S.E.2d 464 (2001) (reviewing the history of North Carolina jurisprudence as to cases involving allegations of unauthorized appearances of counsel and the presumption in North Carolina law that actions taken by an attorney on behalf of a client are authorized). Compare Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 52 (Ala. 2003) (noting that an appearance by an attorney on behalf of a defendant in a lawsuit is presumed to be authorized and that “the presumption of the appearing attorney’s authority to appear and the burden of proof on the challenging party[ ] applies against a defaulted defendant ... which denies that it has either received service of process or authorized the attorney to accept service, to make an appearance, or to waive objections to service and in personam jurisdiction”).

In the context of the foregoing presumption, the Alabama trial court in this case had before it both an answer and an affidavit that bear the style of the 1980 North Carolina action and were apparently filed in that action. Both of those documents contain the ostensible signature of the father. The trial court was free to disbelieve the father’s testimony that the signatures on those documents were not his. We also note that the father offered no explanation as to why his North Carolina attorney would have made an unauthorized appearance on his behalf in the North Carolina action, would have filed an answer and an affidavit on behalf of the father that he was not authorized to file, or would have gone so far as to cause the father’s signature to be forged on those documents. We also note that the father’s ostensible signature on those documents is accompanied by an apparent notarization.

In addition to the foregoing, an affidavit of the father’s North Carolina counsel filed in the North Carolina action, upon which the father himself seems to rely to establish the limited nature of that counsel’s authority, itself belies the father’s position. Specifically, the affidavit of the North Carolina counsel stated, in part, that when a proposed consent decree between the father and the mother was rejected by the father

“counsel for the [father] ... informed the [father] that the case ha[d] been set for a full hearing before [the North Carolina] court, and that the remainder of the attorney’s fees for counsel[] must be paid; and that the [father] informed counsel that said fees would be paid on or before the 15th of May 1980.”

(Emphasis added.)

Finally, the trial court’s finding that the father’s North Carolina counsel acted with authority is also supported by the father’s failure to challenge the North Carolina judgment for approximately 23 years. The father admitted that he had received actual notice of the June 1980 hearing in the North Carolina action a week or so after it was held and that in August 1980 he also received a copy of the judgment resulting from that hearing. The trial court could have inferred from the fact that the father received a copy of the North Carolina judgment increasing the amount of his child-support obligation, and that he received a copy of that judgment on or about the time it was entered in 1980, and the fact that he failed to respond thereto at that time or to thereafter raise any objection to that judgment for a period of approximately 23 years, that the father did in fact authorize the North Carolina counsel to make an appearance on his behalf and/or did in fact sign the answer that was filed on his behalf in that action, which resulted in a waiver of any in personam jurisdiction defense he might have had..

In light of the presumption in North Carolina law that the answer purportedly filed on behalf of the father in the 1980 North Carolina action was authorized by the father, and the conflicting evidence before the Alabama trial court as to the issue whether that presumption has been rebutted, we cannot conclude that the Alabama trial court’s decision upholding the validity of the North Carolina judgment is due to be reversed.

Having determined that the North Carolina judgment is not void, we next consider the issue of the applicable statute of limitations. Section 30-3A-604(b), Ala.Code 1975, provides that “[i]n a proceeding for [child-support] arrearages, the statute of limitation under the laws of this state or of the issuing state, whichever is longer, applies.” The parties agree that the applicable North Carolina statute of limitations is 10 years. See Lindsey v. Lindsey, 34 N.C.App. 201, 237 S.E.2d 561 (1977). On the other hand, § 6-2-32, Ala. Code 1975, states: “Within 20 years, actions upon a judgment or decree of any court of this state, of the United States or of any state or territory of the United States must be commenced.” Child-support orders become final judgments on the dates payments thereunder are due. See T.L.D. v. C.G., 849 So.2d 200 (Ala.Civ.App. 2002) (citing Osborne v. Osborne, 57 Ala. App. 204, 206, 326 So.2d 766, 767 (Ala.Civ. App.1976)); and State Dep’t of Human Res. ex rel. Harper v. Finley, 634 So.2d 1025 (Ala.Civ.App.1994). Accordingly, under Alabama law, the applicable statute of limitations in this case is 20 years. E.g., Leslie v. Beringer, 636 So.2d 441 (Ala.Civ. App.1994). Because the limitations period provided by Alabama law is longer than that provided by North Carolina law, the Alabama statute of limitations governs and, accordingly, enforcement of the North Carolina judgment with respect to child-support payments due before February 10, 1983, is time-barred.

The father next argues that the trial court erred in, calculating the amount of his child-support arrearage. Although the evidence concerning payments by the father is conflicting, ordinary arithmetic shows that the amount of the judgment exceeds the gross amount of the father’s child-support obligation during the applicable period. The statute of limitations bars enforcement of installments due before February 10, 1983, and the father’s child-support obligation ceased on April 12, 1993, when the younger child reached the age of majority. There are 122.07 months in the interval between those two dates; the total amount of child support accruing in the interval between those two dates is $61,035 — 122.07 months times $500 per month. Thus, even if the father had made no payments, the trial court’s calculation materially overstates the father’s arrear-age.

The parties disputed the amounts paid by the father and whether the father should receive credit for periods when the children were not living with the mother. The father testified that he had paid approximately $51,000 and introduced copies of checks and receipts relating thereto. The mother testified that the father made sporadic or infrequent payments, and she presented evidence showing payments by the father of approximately $24,000. On remand, the trial court is to resolve which, if any, of the payments apply to child-support obligations for the relevant period.

Based on the foregoing, we affirm that portion of the Alabama trial court’s judgment declaring the North Carolina judgment not to be void. We reverse that portion of the judgment relating to the calculation of the amount of the father’s arrearage, and we remand the cause for the trial court to determine the amounts paid by the father and the amount of credit, if any, to be given to the father, and for the trial court to determine the correct amount of the arrearage, for the 10-year period ending April 12,1993.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The affidavit contained testimony in support of the defenses raised by the father in response to the mother’s complaint.

      . The parties' relationship has been marked by almost continual strife. Each party accuses the other of various forms of bad faith, dishonesty, and other intentional misconduct.

      . Under the Full Faith and Credit Clause of the United States Constitution, Alabama must enforce a foreign judgment to the same extent as would the state that rendered the judgment. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); McGouryk v. McGouryk, 672 So.2d 1300, 1302 (Ala.Civ. App.1995). North Carolina (like Alabama) allows a void judgment to be attacked at any time. See Van Engen v. Que Scientific, Inc., 151 N.C.App. 683, 689, 567 S.E.2d 179, 184 (N.C.App.2002) (a " 'void judgment is a legal nullity which may be attacked at any time' "). Compare Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 642-43 (Ala.2003).

      . The affidavit earlier stated that the arrangement between counsel and the father was for an attorney fee of $100 if an agreement could be reached regarding the transfer of jurisdiction of the child-support matter to the North Carolina court without the necessity of court action, but that a fee of $300 would be charged if a court hearing became necessary.

      . We note that under § 6-9-191, Ala.Code 1975, the general rule in Alabama is that judgments are presumed satisfied after 10 years if, during such time, execution has not issued for the collection of that judgment. Judgments for child-support arrearages, however, are specifically excepted from this rule. See Derringer v. Beadiescomb, 537 So.2d 34, 36 (Ala.Civ.App.1988):
      "In Tanana v. Alexander, 404 So.2d 61 (Ala. Civ.App.1981), this court held that:
      " ‘[I]n the context of a custodial parent coming into court seeking a judicial determination of arrearage, ... alleged past-due and unpaid child support payments are not "final judgments” for purposes of § 6-9-191 until there has been a judicial ascertainment and declaration of the amount past due.'
      "Therefore, the child support payments which came due in the years 1975-77 did not become 'final judgments’ until the court below issued its order in January 1988 declaring them to be past due. Thus, the payments are not subject to the presumption of satisfaction found in section 6-9-191.”
      (Emphasis added.)


author: THOMPSON, Judge.

text:
    Sedrick ALEXANDER v. STATE of Alabama.
    2021143.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2005.

      Connie Cooper, Phenix City, for appellant.
    Greg Waldrep, asst, district atty., Phe-nix City, for appellee.
   On Return to Remand

THOMPSON, Judge.

This action arises out of the State’s attempt to condemn a vehicle pursuant to § 20-2-93, Ala.Code 1975. In Alexander v. State, 904 So.2d 1265,1271 (Ala.Civ.App. 2004), this court remanded this cause to the trial court “to take additional evidence to determine the value of the vehicle and to make a determination as to whether the forfeiture of the vehicle constitutes an excessive fine under the Eighth Amendment.”

On remand, the trial court entered an order in which it made the determination, “[biased on the initial hearing, subsequent hearing, on-site inspection, and other inquiry,” that at the time it was seized by the State the vehicle had a value of $12,000; the trial court also determined that the forfeiture of the vehicle did not constitute an excessive fine under the Eighth Amendment to the United States Constitution. Sedrick Alexander, the owner of the vehicle, argues that the forfeiture of the vehicle constitutes an excessive fine that violates the Eighth Amendment. In Ex parte Dorough, 773 So.2d 1001 (Ala. 2000), our supreme court explained that the United States Supreme Court has set forth a proportionality test for determining whether a civil forfeiture violates the Eighth Amendment. In applying that test, the courts must determine whether “ ‘the amount of the forfeiture is grossly disproportional to the gravity of the defendant’s offense.’ ” Ex parte Dorough, 773 So.2d at 1004 (quoting United States v. Bajakajian, 524 U.S. 321, 337, 118 S.Ct. 2028,141 L.Ed.2d 314 (1998)).

In his brief on appeal, Alexander cites only Dent v. State, 714 So.2d 985 (Ala.Civ.App.1997), in support of his argument that the forfeiture of the vehicle in this case amounts to an excessive fine. In Dent v. State, this court reversed a forfeiture judgment where the value of the vehicle seized was nine times greater than the maximum total fine for the offense to which the appellant had pleaded guilty; in doing so, this court concluded that the forfeiture constituted an excessive fine that violated the Eighth Amendment. In its analysis in Dent v. State, this court cited United States v. 427 and 429 Hall Street, 74 F.3d 1165 (11th Cir.1996).

In Hall Street, the trial court ordered the forfeiture of property valued at approximately one and a half times the amount of the maximum fine for the offense for which the appellant was charged. In affirming that forfeiture judgment, the United States Court of Appeals for the Eleventh Circuit applied the proportionality test and rejected an argument that the forfeiture constituted an excessive fine in violation of the Eighth Amendment. 74 F.3d at 1172-73.

As indicated in this court’s original opinion, the maximum total fine for the two offenses for which Anthony Grier, the person in possession of the vehicle at the time it was seized, pleaded guilty was $10,000; also, the “trial court specifically found that Alexander knew or could have known that Grier would use the vehicle to violate the Controlled Substances Act.” Alexander v. State, 904 So.2d at 1270. The value of the forfeiture in this case is only 20% higher than the amount of the total maximum fine for the offenses involved. Given the arguments that Alexander asserted with regard to this issue, we cannot say that Alexander has demonstrated that the forfeiture of the vehicle was “ ‘grossly disproportional to the gravity of the ... offense,’ ” Ex parte Borough, 773 So.2d at 1004, or that the trial court’s judgment amounted to an excessive fíne that violates the Eighth Amendment.

AFFIRMED.

CRAWLEY, P.J., and PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . The Eighth Amendment of the United States Constitution provides that "[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”


author:
PER CURIAM.
      MURDOCK, Judge,

text:
    Fred M. RICHARDS v. Arthur PHILLIPS and Cynthia Phillips.
    2030819.
    Court of Civil Appeals of Alabama.
    Oct. 7, 2005.

      William R. Hill, Jr., Clanton, for appellant.
    Christopher G. Speaks, Clanton, for ap-pellees.
   PER CURIAM.

The defendant Fred M. Richards appeals a summary judgment entered in favor of the plaintiffs Arthur Phillips and Cynthia Phillips (“the Phillipses”). The summary judgment set aside a foreclosure deed resulting from Richards’s exercise of the power of sale contained in two mortgages the Phillipses had executed on a parcel of real property located in Chilton County (“the property”). Richards also appeals two temporary restraining orders entered by the trial court that enjoined him from evicting the Phillipses from the property before the entry of the summary judgment. We decline to decide the issue raised by Richards regarding the temporary restraining orders because that issue is moot. However, we reverse the summary judgment in favor of the Phillipses and remand the case for further proceedings consistent with this opinion.

On August 19, 1984, the Phillipses executed two promissory notes in which they promised to pay Richards the total principal amount of $450,000 in order to purchase the property. The promissory notes, which provided that interest accrued at the rate of 7% per annum, required the Phillipses to make interest-only payments on January 1 of each year from 1995 through 2009 and to make a balloon payment on August 19, 2009. Contemporaneous with their execution of the promissory notes, the Phillipses executed two mortgages. on the property to secure the payment of the promissory notes.

The Phillipses made the interest-only payments each year from 1995 through 2002. The Phillipses did not make the interest-only payment due on January 1, 2003. Richards published a foreclosure notice regarding the property on March 27, April 3, and April 10, 2003, in the Chilton County News, a local newspaper of general circulation. The foreclosure notice stated that the property would be sold on April 21, 2003, on the steps of the Chilton County courthouse. The foreclosure notice also stated the name of the mortgagors, the name of the mortgagee, the recording information regarding the mortgages, and the legal description of the property. Although the preamble of the foreclosure notice inaccurately stated that the property was located in Shelby County, the legal description of the property accurately stated that the property was located in Chilton County. On April 21, 2003, Richards’s attorney conducted a foreclosure sale on the steps of the Chilton County courthouse. No other bidders appeared, and Richards’s attorney bid on the property and executed and recorded a foreclosure deed on behalf of Richards. Richards’s attorney then sent the Phillips-es a letter notifying them that Richards had foreclosed on the property and that they would lose their right of redemption unless they vacated the property within 10 days. The Phillipses did not vacate the property within 10 days after receiving the letter.

On October 15, 2003, the Phillipses sued Richards. They sought either a judgment setting aside the foreclosure sale or, in the alternative, a judgment allowing them to redeem the property from foreclosure. The Phillipses also sought a temporary restraining order prohibiting Richards from evicting them from the property. On October 17, 2003, the trial court entered a temporary restraining order prohibiting Richards from evicting the Phillipses. The trial court set a hearing regarding the temporary restraining order for November 14, 2003. The October 17, 2003, temporary restraining order did not require the Phillipses to give security.

Answering the complaint on November 14, 2003, Richards asserted that the foreclosure was valid. He also counterclaimed for possession of the property and sought damages for the Phillipses’ failure to vacate the property. That same day, the trial court conducted a hearing regarding the temporary restraining order. On November 20, 2003, the trial court issued another temporary restraining order prohibiting Richards from evicting the Phil-lipses from the property. The November 20, 2003, temporary restraining order did not require the Phillipses to give security. On December 3, 2003, Richards moved the trial court to alter, amend, or vacate the November 20, 2003, temporary restraining order on the ground that the Phillipses had failed to give security as required by Rule 65, Aia. R. Civ. P. The Phillipses responded that they were ready, willing, and able to give security and to pay Richards the full amount owed for the purchase of the property.

On April 12, 2004, the Phillipses moved for a summary judgment. As grounds, they asserted that the foreclosure was invalid because: (1) their failure to make the January 1, 2003, payment on its due date, i.e., January 1, 2003, did not constitute a default because the promissory notes did not contain a “delinquency clause” providing that the failure to pay the January 1, 2003, payment on its due date or within a certain period of time after its due date was an event of default; and (2) the erroneous statement in the preamble of the foreclosure notice that the property was located in Shelby County instead of Chil-ton County rendered the notice of the foreclosure sale invalid. The Phillipses also asserted that they were ready, willing, and able to pay the amounts due under the promissory notes in full.

Responding to the Phillipses’ summary-judgment motion, Richards contended that the foreclosure was valid. After a hearing, the trial court, on May 17, 2004, made and initialed this entry on the case action summary:

“Motion for Summary Judgment as filed by Plaintiff[s]. Argument heard by Court. Upon hearing the argument, Court finds that there is no genuine issue of material fact and the Plaintiff[s] Paul Arthur Phillips and Cynthia Ann Phillips are entitled to a Summary Judgment against Fred M. Richards as a matter of law. Foreclosure Deed dated April 21, 2003, recorded in Book 0287, Page 850-851 Office [of the] Judge of Probate, Chilton County, AL is set aside. S.R. This is a final judgment, there being no just cause for delay. S.R.”

The trial court’s statement that “[t]his is a final judgment” and its finding that “there [is] no just cause for delay” were sufficient to make the judgment final under Rule 54(b), Ala. R. Civ. P. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985) (holding that the trial court’s order was a final judgment pursuant to Rule 54(b) where the trial court found there was “ ‘no just reason for delay in the entry of said final judgment’ ” even though the trial court did not expressly “direct” the entry of final judgment); see also Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000) (holding trial court made judgment final by stating that it was final in favor of one of multiple defendants and by citing Rule 54(b) even though the trial court omitted the language “that there is no just reason for delay”). Richards timely appealed to the supreme court on June 3, 2004, and the supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Richards argues that the trial court erred in entering a summary judgment in favor of the Phillipses because, he says, the inaccurate statement in the preamble of the foreclosure notice that the property was located in Shelby County did not render the foreclosure notice invalid. Richards cites Drake v. Rhodes, 155 Ala. 498, 46 So. 769 (1908), in support of this argument. In Drake, the mortgage had been executed by A.P.J. Drake and his wife, C.A. Drake. However, the foreclosure notice recited that the mortgage was executed by A.J.P. Drake and his wife, C.A. Drake. The mortgagors argued that the transposition of the initials of A.P.J. Drake in the foreclosure notice rendered the foreclosure notice invalid and thus rendered the foreclosure sale invalid. Rejecting this argument, the supreme court stated:

“The notice recites that the mortgage was given to F.M. Rhodes, and gives the date of the mortgage, and the record and page of record where it is recorded in the probate office, together with the description of the lands as the same appears in the mortgage. Thus the mortgage under which the sale was advertised is definitely described, and the notice itself furnishes the means of correcting the mistake made in transposing the initials of the mortgagor’s name. Without further discussion of the question, the court is of the opinion that there is no merit in the point.”

155 Ala. at 502-03, 46 So. at 770-71 (emphasis added).

The error in the case now before us, i.e., the inaccurate statement in the preamble of the foreclosure notice that the property was located in Shelby County was a more significant error than the transposition of the mortgagor’s initials in Drake. However, in the case now before us, the legal description of the property in the foreclosure notice accurately stated that the property was located in Chilton County. Moreover, like in Drake, the foreclosure notice in the case now before us accurately described the recording information regarding the mortgages under which the sale was being conducted. Thus, the foreclosure notice itself furnished the means of eliminating any confusion that might have resulted from the reference to Shelby County in its preamble. Accordingly, we conclude that the inaccurate statement in the preamble of the foreclosure notice that the property was located in Shelby County was not a sufficient basis upon which to set aside the foreclosure deed. However, because the alleged insufficiency of the notice provided by the foreclosure notice was only one of two grounds upon which the Phillipses moved for a summary judgment, Richards must also establish the invalidity of the Phillipses’ other ground in order to win a reversal of the summary judgment.

The other ground for a summary judgment raised by the Phillipses was that the absence of a “delinquency clause” from their promissory notes meant that their failure to pay the January 1, 2003, payment on its due date or within a certain period after its due date did not constitute a default under the promissory notes and, therefore, that Richards was not entitled to foreclose the mortgages securing the promissory notes. Richards argues that the trial court erred if it entered the summary judgment on this ground because, he says, the promissory notes specified January 1 as the due date for each annual payment of interest from 1995 through 2009 and they contained acceleration clauses that stated:

“If default shall be made in the payment of the interest or principal when the same shall become due, or in the performance of any of the covenants or agreements contained in that certain real estate mortgage given to secure payment hereof, the entire unpaid principal of this note with interest thereon, shall become due at once at the option of the holder of this note and may be sued and collected in like manner as if the full time provided in the note had expired.”

(Emphasis added.) Thus, Richards argues that the Phillipses defaulted in the payment of the promissory notes when they failed to pay the January 1, 2003, payment on or before January 1, 2003, and, therefore, that he was entitled to foreclose the mortgages. We agree. Accordingly, we reverse the summary judgment in favor of the Phillipses and remand the case for further proceedings consistent with this opinion.

Richards has also appealed the two temporary restraining orders enjoining Richards from evicting the Phillipses from the property before the entry of the summary judgment. He argues that the trial court erred in granting them without ordering the Phillipses to give security as required by Rule 65(c), Ala. R. Civ. P. However, each of the temporary restraining orders lasted only 10 days because they were not extended. See Rule 65(b) (providing that a temporary restraining order expires “by its terms within such time after entry not to exceed ten (10) days, as the court fixes ..., unless within the time so fixed the order for good cause shown is extended or unless the party against whom the order is directed consents that it may be extended for a longer period”). Because the temporary restraining orders have expired, the issue whether the trial court erred in granting the temporary restraining orders without requiring the Phillipses to give security is moot. This court does not review moot issues. See Ex parte Connors, 855 So.2d 486, 488 (Ala.2003) (“It is well settled that the judiciary of Alabama is not empowered ‘ “to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis omitted).”).

We decline to reach the issue raised by Richards regarding the temporary restraining orders because that issue is moot. We reverse the summary judgment in favor of the Phillipses and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result, with writing.

MURDOCK, Judge,

concurring in the result.

I question whether the mistake in the foreclosure notice in Drake v. Rhodes, 155 Ala. 498, 46 So. 769 (1908)—the transposition of the mortgagor’s first and middle initials — is comparable to the mistake in the foreclosure notice in the present case — the recitation of the property’s location as Shelby County instead of Chilton County. Nonetheless, we are not presented with the argument that the mistake in the present case caused the purchase price at the foreclosure sale to be less than it would have been had the correct county been listed in the foreclosure notice. Accordingly, I concur in the result reached by the main opinion.

      . The record does not indicate how much the attorney bid on the property on behalf of Richards.