author: NABERS, Chief Justice.

text:
    Ex parte HOOVER, INC. (In re State of Alabama Department of Revenue v. Hoover, Inc.).
    1040969.
    Supreme Court of Alabama.
    April 28, 2006.

      Blake A. Madison and David E. Rains of Tanner & Guin, LLC, Tuscaloosa; and Bruce P. Ely of Bradley Arant Rose <& White, LLP, Birmingham, for petitioner.
    Troy King, atty. gen.; Henry C. Chap-pell, deputy atty. gen., and chief counsel, Department of Revenue; and Margaret Johnson McNeill and J. Wade Hope, asst, attys. gen. and asst, counsel, Department of Revenue, for respondent.
   NABERS, Chief Justice.

The Commerce Clause of the United States Constitution states that “[t]he Congress shall have power ... [t]o regulate commerce ... among the several states.... ” U.S. Const., Art. I, § 8, cl. 3. Notably absent from this text is any explicit prohibition on state regulation of interstate commercial activity. Nonetheless, the United States Supreme Court, in what is referred to as its “dormant” or “negative” Commerce Clause jurisprudence, has concluded that such a constitutional principle exists. “The negative or dormant implication of the Commerce Clause prohibits state taxation ... or regulation ... that discriminates against or unduly burdens interstate commerce and thereby ‘imped[es] free private trade in the national marketplace.’ ” General Motors Corp. v. Tracy, 519 U.S. 278, 287, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997) (quoting Reeves, Inc. v. Stake, 447 U.S. 429, 437, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980)).

In this case, we granted certiorari review to consider whether the decision of the Court of Civil Appeals reversing a summary judgment in favor of Hoover, Inc., conflicted with our previous decision in this dispute, Hoover, Inc. v. State Dep’t of Revenue, 833 So.2d 32 (Ala.2002) (“Hoover I”), and with the Supreme Court’s negative Commerce Clause jurisprudence. Having determined that it does, we now reverse the judgment of the Court of Civil Appeals and remand the case.

I. Facts and Procedural History

In Hoover I, this Court set out the basic facts of this case as follows:

“Hoover is a Tennessee corporation that sells crushed stones and other products in the southeastern United States. Hoover operates three sales offices in Alabama, and one of its quarries is located in Colbert County. During the years 1996 through 1999, Hoover sold crushed stone from the Colbert County facility to certain Mississippi governmental entities. It did not collect Alabama sales tax on those sales. On October 11, 2000, the Department entered a final assessment against Hoover, assessing $159,520.27 in additional sales tax due for the period July 1996 through June 1999.”

833 So.2d at 33.

Hoover paid the final assessment under protest, and on November 13, 2000, Hoover sued the State Department of Revenue (“the Department”) in the Colbert Circuit Court, appealing the imposition of the sales tax. See § 40-2A-7, Ala.Code 1975. Hoover asserted that it was entitled to a refund of the taxes it had paid under protest because, it argued, the State’s practice of taxing sales to Mississippi governmental entities while exempting identical sales to itself, its counties, and its incorporated municipalities violated the Commerce Clause of the United States Constitution, Art. I, § 8, cl. 3.

The Department moved for a summary judgment, asserting that it was not unconstitutional to tax sales to Mississippi governmental entities when those entities took delivery of goods in Alabama. In support of this argument, the Department relied exclusively on State v. Leary & Owens Equipment Co., 54 Ala.App. 49, 304 So.2d 604 (1974)(holding that Alabama could tax the sales of repair parts to county governments in Florida where the transactions were conducted entirely within Alabama). The trial court granted the Department’s motion, and Hoover appealed.

On appeal to this Court, Hoover argued that Leary & Owens was no longer an accurate statement of the law because it was decided before several significant negative Commerce Clause decisions of the United States Supreme Court. The Department, however, continued to rely exclusively on Leary & Oivens, and chose to “completely ignore[ ] the United States Supreme Court decisions relied upon by Hoover.” Hoover I, 833 So.2d at 34. In doing so, the Department passed on the opportunity to explain how and why the Supreme Court’s negative Commerce Clause jurisprudence on which Hoover relied was inapplicable or distinguishable, essentially allowing Hoover’s negative Commerce Clause argument to go unchallenged.

In reversing the summary judgment in favor of the Department and remanding the case, a unanimous Court agreed that Leary & Owens was not controlling and that the Supreme Court’s negative Commerce Clause jurisprudence was applicable. The Court agreed with Hoover’s contention that Alabama’s sales-tax-exemption scheme facially discriminated against interstate commerce and thus was “ ‘ “virtually per se invalid.” ’ ” Hoover I, 833 So.2d at 35 (quoting Fulton Corp. v. Faulkner, 516 U.S. 325, 331, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996), quoting in turn Oregon Waste Sys., Inc. v. Department of Envtl. Quality of Oregon, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994)). The Court concluded that “the trial court erred in entering a summary judgment in favor of the Department on a record where the Department offered no evidentiary justification for the discriminatory impact.” 833 So.2d at 36 (emphasis added).

Following our remand in Hoover I, both parties filed cross-motions for a summary judgment. At an evidentiary hearing on both motions, the circuit court heard testimony from two witnesses. Hoover offered the testimony of George Bright, Hoover’s secretary-treasurer, and the Department offered the testimony of Dan Lawrence, the State revenue agent who had conducted the audit resulting in Hoover’s assessment of back taxes.

George Bright’s testimony generally described the nature of the transactions between Hoover and its governmental customers in Mississippi. Bright explained that the Mississippi governmental entities typically solicited bids for crushed stone by mail, and if Hoover was the lowest bidder, the entities would either request that Hoover deliver the stone across state lines, or, more commonly, the entities would send their trucks to Hoover’s quarry in Colbert County to pick up the stone. Bright stated that Hoover treated the latter sales as nontaxable, in part because the Mississippi governmental entities refused to pay sales tax on the transactions.

In his testimony, Dan Lawrence described the methodology of his audit, and he stated that the back-tax assessment was based only on those transactions in which the Mississippi governmental entities took delivery of the stone in Alabama. When he was asked to provide a justification for the discriminatory effect of the sales-tax exemption, i.e., for not taxing sales to Alabama governmental entities but taxing certain sales to Mississippi governmental entities, Lawrence could not do so. The Department offered no other eviden-tiary proof in support of any justification for the discriminatory impact of the tax.

Folio-wing the evidentiary hearing and the arguments of counsel, the circuit court entered a summary judgment in Hoover’s favor. The circuit court concluded that the Department had failed to establish a justification for the discriminatory taxation, as required by Hoover I, and, therefore, that Hoover was entitled to a refund of the sales taxes it had paid under the assessment and to interest. In so holding, the circuit court found that “[although rationalizations for the disparaging treatment conceivably exist, the Department offered no evidence, which would justify the facially discriminatory scheme of taxation.” (Emphasis added.)

The Department appealed the summary judgment to the Court of Civil Appeals, which reversed the judgment of the circuit court and remanded the case with instructions to enter a judgment for the Department. We granted Hoover’s petition for certiorari review, and we now reverse and remand.

II. Standard of Review

It is well established that this Court reviews a summary judgment de novo, with the understanding that we must review the record in the light most favorable to the nonmoving party and resolve all reasonable doubts in favor of the non-movant. Fitts v. AmSouth Bank, 917 So.2d 818, 821 (Ala.2005); and American Gen. Life & Acc. Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). Moreover, “[w]here the facts are not in dispute and we are presented with a pure question of law, as here, this Court’s review is de novo.” Christian v. Murray, 915 So.2d 23, 25 (Ala.2005).

III. Analysis

With any case involving the negative Commerce Clause, courts are confronted with the unenviable task of interpreting and applying a jurisprudence that is complicated, convoluted, and often criticized. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 610, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997) (Thomas, J., joined by Rehnquist, C.J., and Scalia, J., dissenting) (“The negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.”); Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200, 115 S.Ct. 1331, 131 L.Ed.2d 261 (1995) (Scalia, J., joined by Thomas, J., concurring in the judgment) (“[T]he ‘negative Commerce Clause’ ... is ‘negative’ not only because it negates state regulation of commerce, but also because it does not appear in the Constitution.”); Wardair Canada, Inc. v. Florida Dep’t of Revenue, 477 U.S. 1, 17, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986) (Burger, C.J., concurring in part and concurring in the judgment) (referring to “the cloudy waters of this Court’s ‘dormant Commerce Clause’ doctrine”); Kassel v. Consolidated Freightways Corp. of Del., 450 U.S. 662, 706, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (Rehnquist, J., joined by Burger, C.J., and Stewart, J., dissenting) (“[T]he jurisprudence of the ‘negative side’ of the Commerce Clause remains hopelessly confused.”); and Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) (calling the Court’s negative Commerce Clause jurisprudence a “tangled underbrush” and a “quagmire”). Fortunately, because of our previous decision in Hoover I, we need not journey far into this tangled underbrush.

In Hoover I, this Court concluded:

“Because at trial the Department has the burden of proof to justify a law that on its face discriminates against interstate commerce, the trial court erred in entering a summary judgment in favor of the Department on a record where the Department offered no evidentiary justification for the discriminatory impact.”

833 So.2d at 36 (emphasis added). Hoover I established, therefore, that the transactions at issue in this case — sales of crushed stone to Mississippi governmental entities that were completed within Alabama — constituted interstate commerce and that the tax-exemption scheme before us facially discriminated against interstate commerce. As a result, these conclusions of law governed the proceedings below under the law-of-the-case doctrine, and they guide us on this appeal. See ECO Pres. Servs., LLC v. Jefferson County Comm’n, 933 So.2d 1067, 1071 n. 7 (Ala.2006)(quoting Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987))(“‘[Wjhatever is once established between the same parties, in the same case continues to be the law of that case, whether or not correct and they guide us on this appeal on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.’ ” (emphasis omitted)).

We recognize that under § 12-2-13, Ala.Code 1975, the law-of-the-case doctrine does not preclude us from reconsidering our previous decision in Hoover I if we conclude that it was wrongly decided. We exercise this authority, however, only when a party presents the necessity and duty to reconsider a former ruling as an issue on appeal. See Baer v. Alco Land & Timber Co., 291 Ala. 640, 643-44, 285 So.2d 913, 915 (1973); and National Commercial Bank v. McDonnell, 92 Ala. 387, 390-91, 9 So. 149, 149-50 (1891).

Here, the Department has not cited § 12-2-13, Ala.Code 1975, and has not argued that we misapprehended the law in Hoover I. Neither does it argue that our decision in Hoover I was unsound under the United States Supreme Court’s negative Commerce Clause jurisprudence or any other authority. Instead, the Department contends that in Hoover I “[tjhis Court did not decide that the Commerce Clause was implicated.... Before remand, this Court had no factual evidence on which to base a decision, which is exactly why the case was remanded.” Department’s brief at 13 (emphasis in original). The Department asserts that on remand it “submitted factual evidence that the transactions at issue occurred fully within the State of Alabama,” id., and, as a result, the law-of-the-case doctrine was not applicable in the proceedings below and does not apply here.

This argument is clearly without merit. The Department’s characterization of our decision in Hoover I is plainly contradicted by the explicit language in that opinion. Certainly we could not have concluded that “the Department ha[d] the burden of proof to justify a law that on its face discriminates against interstate commerce,” 833 So.2d at 36, without first finding that the transactions at issue constituted interstate commerce.

Furthermore, to the extent the Department’s argument can be interpreted as a claim that we erred in so holding in Hoover I, it is unpersuasive. At its base, the Department’s argument rests on an obsolete conception of what constitutes interstate commerce under negative Commerce Clause jurisprudence. On this appeal, the Department continues to argue that “at no time during the transaction^] between Hoover and the Mississippi governmental entities was the concept of interstate commerce implicated ... [because] the entire transaction^] occurred and closed within Alabama.” Department’s brief at 16. Inexplicably, the Department once again relies on Leary & Owens in support of this claim.

Rightfully or wrongfully, the fact that a transaction is completed within a state’s borders no longer is dispositive in determining whether the transaction constitutes interstate commerce. The Supreme Court has made it clear that “ ‘[t]he definition of “commerce” is the same when relied on to strike down or restrict state legislation as when relied on to support some exertion of federal control or regulation.’ ” Camps Newfound/Owatonna, 520 U.S. at 574, 117 S.Ct. 1590 (quoting Hughes v. Oklahoma, 441 U.S. 322, 326 n. 2, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979)). Considering the wide swath of economic activity that constitutes - interstate commerce today, see, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964)(“ ‘(i)f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze’ ”), we cannot accept the Department’s contention that the Commerce Clause was not implicated by the transactions at issue here.

This case hinges, therefore, on whether the Department submitted an “ev-identiary justification for the discriminatory impact” of the sales-tax exemption, as required by Hoover I and the negative Commerce Clause jurisprudence discussed in that opinion. 833 So.2d at 36. On remand, the sole justification offered by the Department was that of “administrative convenience.” In reversing the trial court’s judgment and upholding the sales-tax-exemption scheme, the Court of Civil Appeals concluded that this justification (which the Department presented not by way of admissible evidence but in its memorandum in support of its summary-judgment motion) was sufficient to satisfy this Court’s mandate in Hoover I and the Department’s heavy burden under the “virtually per se invalid” standard. The Court of Civil Appeals stated:

“[T]he Department offers the following justification:
“ ‘The sales tax exemption mitigates the administrative costs of an Alabama governmental entity having to pay sales tax to the State, and then having the State refund and disburse a portion, if any, of the tax right back to the Alabama entity to fund various governmental functions. This is an unnecessary step, as it is simpler to just exempt the Alabama entities from having to pay the sales tax in the first place.’
“We believe this is a logical, and reasonable, justification. We do not read the Commerce Clause, nor any of the cases cited to us by Hoover or discussed by our Supreme Court in Hoover I, as requiring a contrary conclusion in the context presented here.”

State Dep’t of Revenue v. Hoover, Inc., 956 So.2d 1142, 1146 (Ala.Civ.App.2005) (footnote omitted).

We disagree. Because it is clear from our decision in Hoover I that the virtually per se rule of invalidity is applicable, see 833 So.2d at 35, the Department was charged with demonstrating on remand that the sales-tax-exemption scheme at issue here “ ‘ “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” ’ ” Camps Newfound/Owatonna, 520 U.S. at 581, 117 S.Ct. 1590 (quoting Oregon Waste, 511 U.S. at 101, 114 S.Ct. 1345, quoting in turn New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 278, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988)). After reviewing the record in this case, we conclude that the Department has simply failed to carry this burden.

Although the Department asserts that the sales-tax exemption mitigates administrative costs, at no point in this entire dispute has the Department explained this contention in any detail or offered any evidence in support of it. The Department has not attempted to estimate the amount of administrative costs purportedly saved by the sales-tax exemption for Alabama governmental entities, nor has it described how sales-tax revenues are distributed within Alabama. Clearly implied in the Department’s justification is the claim that local governments receive a portion of the sales-tax revenues collected by the State and that they use those revenues “to fund various governmental functions.” The Department, however, fails to even allege, much less prove, that this flow of funds actually occurs. If it does not, clearly the Department’s justification fails. Without any evidence or argument on this point, we lack the basic facts necessary to evaluate the Department’s offered justification.

Furthermore, at best, the Department’s administrative-convenience justification, if properly supported, might constitute a legitimate local purpose. This alone, however, is insufficient. The Department has not presented any evidence to this Court or any other court with respect to the second prong of the analysis. Although nondiscriminatory alternatives obviously exist, such as exempting sales to all out-of-state governments, the Department fails to explain why those alternatives are insufficient or unreasonable.

The closest the Department comes to making such an argument is the last sentence of its brief to this Court, in which it states that if we reverse the judgment of the Court of Civil Appeals, “the loss of sales tax revenues will increase the financial strain on a state already in crisis.” Department’s brief at 27. This bare allegation alone, however, is not sufficient. Again, nowhere in the record does the Department explain this claim with any specificity.

The United States Supreme Court has stated that “facial discrimination [on interstate commerce] invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.” Hughes v. Oklahoma, 441 U.S. at 337, 99 S.Ct. 1727 (emphasis added). The Court has also declared that “[t]his is an extremely difficult burden, ‘so heavy that “facial discrimination by itself may be a fatal defect.” ’ ” Camps Newfound/Owatonna, 520 U.S. at 582, 117 S.Ct. 1590; see Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342, 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992) (“Once a state tax is found to discriminate against out-of-state commerce, it is typically struck down without further inquiry.”). Considering this case-law, we cannot conclude that the Department’s mere argument in its brief of administrative convenience as justification for the discriminatory sales-tax exemption is sufficient to carry its heavy burden under this doctrine.

IV. Conclusion

Because the Department has failed, once again, to provide any evidentiary support to justify the discriminatory sales-tax exemption at issue here, we reverse the judgment of the Court of Civil Appeals and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SEE, LYONS, HARWOOD, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

PARKER, J., concurs in the result.

      . Section 40-23-4(a)(ll), Ala.Code 1975, exempts from Alabama sales tax "[t]he gross proceeds of sales of tangible personal property to the State of Alabama, to the counties within the state and to incorporated municipalities of the State of Alabama.”

      . Hoover also contended that the certain language in Leary & Owens demonstrated that it offered no precedential value. In concluding that the tax at issue in Leary & Owens was valid, the Court of Civil Appeals stated:
      "There seems to be a dearth of law on the subject. Neither that cited by the State nor the appellee is directly on the point. And our research has turned up nothing directly in point.
      "We have concluded that unless there is something in the Federal constitution or the Alabama constitution or the Alabama statutory law or some judicial holding that it is unlawful for one state to collect a tax from another state or unit thereof on a transaction conducted from beginning to end in the first state, the law imposing the tax was as valid against the governmental units of the State of Florida as against an ordinary citizen of Alabama....”

        Leary & Owens, 54 Ala.App. at 53, 304 So.2d at 607-08 (emphasis added).

      . Moreover, any contention that this issue was not presented in Hoover I is spurious. In Hoover I, the Department made the following argument in its brief:
      “In the instant case, Hoover is making retail sales of crushed stone and other products to Mississippi counties and is not collecting Alabama or local sales tax. The plant where delivery of goods is taken is located in Allsboro, Colbert County, Alabama. The transaction was conducted and it was completed within the State of Alabama. It was a closed transaction within the State of Alabama. There was no interstate activity taxed by the Department in violation of the Commerce Clause of the U.S. Constitution.”

      Department's brief in Hoover I at 2 (emphasis added). As this passage indicates, the argument that the transactions at issue were solely intrastate transactions was presented in Hoover I, and our opinion clearly shows that we rejected the argument.

      . In the proceeding below, the Court of Civil Appeals correctly recognized that this test was applicable. The court stated that " 'the [tax scheme] must be invalidated unless the [Department] can “sho[w] that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.”''' 956 So.2d at 1145 (quoting Oregon Waste Sys., 511 U.S. at 100-01, 114 S.Ct. 1345, quoting in turn New Energy, 486 U.S. at 278, 108 S.Ct. 1803) (alterations in Hoover, Inc.).

      . The Department does not cite this standard or provide any discussion with respect to this standard anywhere in its brief to this Court. Instead, the Department cites Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), and presents its argument under the framework adopted in that case. In Complete Auto, the Supreme Court adopted a four-part test for evaluating state taxation under the negative Commerce Clause. The Complete Auto test is inapplicable here, however, because one of its four requirements is that a tax not "discriminate against interstate commerce.” 430 U.S. at 279, 97 S.Ct. 1076.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    STATE of Alabama DEPARTMENT OF REVENUE v. HOOVER, INC.
    2030402.
    Court of Civil Appeals of Alabama.
    Sept. 22, 2006.
    Troy King, atty. gen.; Henry Chappell, deputy atty. gen., and chief counsel, Department of Revenue; and Margaret Johnson McNeill and J. Wade Hope, asst, attys. gen., and asst, counsel, Department of Revenue, for appellant.
    Blake A. Madison and David E. Rains of Tanner & Guin, LLC, Tuscaloosa; and Bruce P. Ely of Bradley Arant Rose & White, LLP, Birmingham, for appellee.
    Lorelei A. Lein, staff atty., Alabama League of Municipalities; and Mary Pons, staff atty., Association of County Commissions of Alabama, for amici curiae Alabama League of Municipalities and the Association of County Commissions of Alabama, in support of the appellant.
   After Remand from the Alabama Supreme Court.

MURDOCK, Judge.

The prior judgment of this court has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte Hoover, Inc., 956 So.2d 1149 (Ala.2006). On remand to this court, and in compliance with the Supreme Court’s opinion, the trial court’s judgment is hereby affirmed.

AFFIRMED.

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


author: THOMPSON, Judge.

text:
    Deborah Diane CUNNINGHAM v. Randy Paul CUNNINGHAM.
    2050338.
    Court of Civil Appeals of Alabama.
    Oct. 27, 2006.

      Mose Lee Sudduth, Jr., Vernon, for appellant.
    Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appel-lee.
   THOMPSON, Judge.

Deborah Diane Cunningham (“the wife”) appeals from a divorce judgment entered by the Lamar Circuit Court in which the court, among other things, dissolved her marriage to Randy Paul Cunningham (“the husband”) and divided the parties’ marital property. We reverse and remand with instructions.

The parties were married on December 10, 1981. One child was born of the marriage. That child was an adult at the time of the divorce proceedings. On July 2, 2004, after 22 years of marriage, the husband filed a complaint seeking a divorce. The wife answered and filed a counterclaim requesting alimony and other relief; she later amended her counterclaim, alleging that the husband had committed adultery. In their pleadings, both parties alleged that the other had been physically abusive and had destroyed marital property-

The trial court entered an order directing the parties to refrain from harming or threatening each other and to refrain from destroying or disposing of any marital property. On September 16, 2005, the case was heard before the trial court, and that court subsequently entered an order on September 19, 2005, divorcing the parties on the ground of incompatibility of temperament. In its order, the trial court awarded the husband a number of vehicles and equipment used in his business, subject to any indebtedness on those vehicles and equipment; all of his clothing and personal effects; and all of his retirement account containing approximately $30,000. The trial court awarded the wife a 2005 Chevrolet Silverado truck, subject to approximately $23,000 in debt; all of her clothing, jewelry, and personal effects; and all of the parties’ household furniture, goods, cookware, and other furnishings. The trial court declined to award alimony, but it reserved the issue for a possible future award. The court did not initially dispose of the parties’ real property because it found that the evidence was ambiguous as to what property the parties owned.

On September 20, 2005, the day after entering the first order, the trial court entered an amended order with minor clerical changes. Following the entry of the amended order, the wife filed a purported postjudgment motion in which she requested that the trial court resolve the remaining issues between the parties, including the division of certain real estate. Subsequently, on December 19, 2005, the trial court entered an order entitled “supplemental decree” in which it ordered that the parties’ real property be sold and that the proceeds be divided equally between the parties; in that order, the trial court denied all other requested relief. That December 19, 2005, order was a final judgment because it resolved the last of the pending issues and requests for relief between the parties. See Hill v. Cleveland, 929 So.2d 471, 473 (Ala.Civ.App.2005)(“A final judgment must dispose of all claims or determine the rights or liabilities of all parties.”). Later, on January 1, 2006, the trial court entered an order in which it made a minor clarification that is not relevant to the issues on appeal. The wife timely appealed to this court.

The relevant facts adduced at trial are as follows. Both the husband and the wife testified that, after 22 years, their marriage and relationship had deteriorated and irreconcilable differences had developed. The husband and the wife both testified that the other had a drinking problem and that they argued frequently. Both parties testified that the other had been physically abusive on multiple occasions, and the wife testified that physical altercations between the couple had occurred approximately 15 to 20 times throughout the marriage. The husband testified that he had called the police approximately five times to respond to altercations with the wife. On one occasion, the husband was arrested for domestic violence, but the charges were subsequently dropped when he agreed to go to counseling. The husband further testified that the couple had separated in June 2004, had reconciled a few months later, and then had separated again for the final time on April 26, 2005.

The wife testified that the husband was having an affair and that the husband’s paramour sometimes answered the telephone when the wife called the home where the husband lived after the separation. The husband testified that, although he had been dating someone after he had separated from the wife for the final time, he had not had a sexual relationship with anyone before the couple had separated for the final time on April 26, 2005. The husband also testified that he had hired his girlfriend to answer the telephone and perform other clerical work for his business.

The husband testified that he operates the lawn-care and tree-service business that both he and the wife had previously operated and that, in the past, he had listed his business in the telephone directory and in other advertisements as being owned by both the husband and the wife. At the time of the trial, both parties were still listed in the telephone directory and on other advertisements as being co-owners of the business. The husband’s testimony and the parties’ tax returns from 2003 and 2004 established that the business had gross receipts of approximately $116,000 in 2003 and $102,000 in 2004. After expenses, depreciation, and other costs, however, the parties reported only approximately $13,000 in net income in 2003 and approximately $6,000 in net income in 2004.

The wife testified that she has been diagnosed with Klippel-Feil Syndrome and scoliosis, that, as a result, she has been declared permanently and totally disabled, and that she receives as her only source of income a Social Security disability check in the amount of $480 per month. She submitted an exhibit to the trial court indicating that her monthly expenses were approximately $2,060, which included $500 per month for rent, $162.50 per month for utilities, $200 per month for food, $469.51 per month for payments on the indebtedness on the 2005 Chevrolet Silverado truck, $250 per month for medication, $77.50 per month for automobile insurance, $130 per month in automobile expenses, $69.40 per month for life insurance, $100 per month for toiletries and other items marked “essentials,” and $100 per month for telephone service.

Both parties testified that the husband has a retirement account, and the husband testified that the account is worth approximately $30,000. This account was created initially in 1977, before the marriage, when the husband began working for Hyster Company. The husband continued to work for Hyster for several years after the parties were married. The parties disputed, however, when the value in the account was accumulated. The husband testified that he accumulated all of the value in the account before the marriage. The wife, however, testified that the husband was laid off and rehired at one point and that, when he was laid off, all of the value in the account was lost. She further testified that all the value presently in the account was contributed after the marriage.

Both parties also gave testimony and submitted documents outlining the value of the property that they own. The parties testified that, with the exception of a few personal items whose total value was estimated by the parties to be less than $500, most of their property had been acquired after the marriage. The husband valued the parties’ house and the real property surrounding the house at $45,000, and the wife valued the house and property at $55,000. The wife valued .the business property at $151,200, and the husband valued it at $127,600. The parties did not testify as to the present value of the 2005 Chevrolet Silverado truck, but the wife testified that $23,000 remained due on the truck at the time of the trial. The wife estimated a value of $15,250 for the parties’ household property, and the husband valued the same property at $6,520.

The wife focuses a great deal of her argument on the refusal of the trial court to divide the husband’s retirement account. Alabama provides for the division of retirement accounts between spouses, but only under certain circumstances, as outlined in § 30-2-51(b), Ala.Code 1975, which states:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

To determine whether a retirement account should be divided, the general rule regarding property division applies, i.e., the property division as a whole must be equitable. J.N.H. v. N.T.H. II, 705 So.2d 448, 451 (Ala.Civ.App.1997). As § 30-2-51 (b) indicates, whether to divide a retirement account is within the trial court’s discretion. Thus, the failure to divide a retirement account is an abuse of discretion only when it results in an overall inequitable division of property. J.N.H. v. N.T.H. II, 705 So.2d at 451 (“[Rjetirement benefits are subject to the same rule of equitable division within the trial court’s discretion as is other marital property. So long as the trial court’s division of property is equitable, it is not required to divide ... retirement benefits.”).

It is undisputed that, at the time the husband filed for divorce, the parties had been married for more than ten years. The wife testified unequivocally that all the value in the retirement account had been accumulated after the parties were married. The husband directly contradicted that testimony, testifying that he had accumulated all the value before the marriage. The trial court explicitly found in its September 19, 2005, order that the wife had not presented sufficient evidence regarding how much of the $30,000 retirement account the husband had accumulated before and after the marriage to justify a division of the retirement account.

Because the testimony of the parties directly conflicted, the trial court’s resolution of this issue appears to be one based on the credibility of the witnesses. In ore tenus proceedings, “the trial court is the only judge of the facts and of the credibility of the witnesses.” Carr v. Broyles, 652 So.2d 299, 301 (Ala.Civ.App.1994). A trial court’s judgment based on ore tenus evidence is presumed correct and will not be overturned absent a showing that the trial court abused its discretion. Allen v. Allen, 903 So.2d 835, 840 (Ala.Civ.App.2004). The wife has not established that the trial court abused its discretion in refusing to divide the husband’s retirement account.

The wife also contends that the trial court abused its discretion in failing to adjust its property division to account for the husband’s alleged adultery. Certainly, the trial court must take into account as a factor, “ ‘in appropriate situations, the conduct of the parties with reference to the cause of the divorce.’ ” Adams v. Adams, 778 So.2d 825, 827 (Ala.Civ.App.2000)(quoting Bolton v. Bolton, 720 So.2d 929, 930 (Ala.Civ.App.1998)). In its orders disposing of the parties’ assets, the trial court made no mention of misconduct by either party and did not appear to make an adjustment in the property division based on any misconduct. The wife, however, does not allege that the husband’s adultery contributed to the parties’ divorce. In fact, the wife does not claim that the husband was having an affair until after the parties had separated for the final time. Further, the trial court heard ample evidence of misconduct — i.e., alcohol abuse and physical abuse — by both parties. In light of the evidence demonstrating misconduct by both parties, the trial court could have reasonably found that both parties contributed in equal measure to the breakdown of the marriage. Therefore, the wife has failed to demonstrate that the trial court erred by not taking into account the husband’s alleged adultery in fashioning the property division.

However, the wife’s primary contention on appeal is that the trial court’s property division is inequitable as a whole. The retirement account is only one of the assets to consider in reviewing the overall property division. This court has stated:

“On appeal, the issues of alimony and property division must be considered together. The trial court’s judgment on those issues will not be reversed absent a finding that the judgment is so unsupported by the evidence as to amount to an abuse of discretion. The property division need not be equal, but it must be equitable. The factors the trial court should consider in dividing the marital property include ‘the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.’ Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).”

Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000)(some citations omitted).

As we have previously mentioned, the parties were married for 22 years. The husband was 45 years old at the time of the trial, and the record indicates that he is in good health. The wife, however, though of comparable age, is permanently disabled due to several severe medical conditions. As to the parties’ future prospects, the husband has the ability to work and to earn an income through his business or some other source, but the wife cannot work due to her disability. The wife’s only source of income is her disability check in the amount of $480 per month.

The wife testified that her estimated monthly expenses were in excess of $2,000. The trial court appears to have viewed the wife’s expenses as being excessive because the expenses included a $469 truck payment and what the court viewed as an unreasonable $100-per-month telephone bill. However, even if the wife pares down her expenses significantly, those expenses will still greatly outweigh her income, indicating that she will not be able to even remotely maintain the standard of living she enjoyed during the marriage. The husband, however, retains the right to all the income from the business, which the trial court awarded entirely to him.

In Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ.App.2005), we reversed a divorce judgment after concluding that the judgment “disproportionately favor[ed] the husband.” In that case, the parties had been married for 33 years, were nearing retirement age, and had a limited ability to earn a living in the future. 934 So.2d at 1076-77. The wife was receiving approximately $400 per month in Social Security income and had no way to earn additional income. In making its property division, the trial court in Kaufman awarded the husband approximately 77% of the marital estate and awarded the wife approximately 23% of the marital estate, along with $500 per month in alimony. In reversing that judgment, this court noted that the property division was especially inequitable in light of the length of the parties’ marriage. 934 So.2d at 1081. See also Adams v. Adams, 778 So.2d at 827 (reversing a trial court’s judgment containing a division of property that awarded only 16% of the parties’ assets to the wife because the division was “so disproportionate as to be inequitable”).

Factoring in the value of the property awarded to the husband and the value of the business equipment and the husband’s retirement account and subtracting the $53,000 of business debt, the trial court awarded the husband property with a total value of $104,600 as estimated by the husband and $128,200 as estimated by the wife. As for the wife, the total value of the property she received is $6,520 as estimated by the husband and $15,250 as estimated by the wife. Even accepting the highest estimated value for the property awarded to the wife and the lowest estimated value for the property awarded to the husband, the trial court awarded the husband approximately 87% of the parties’ net worth and the wife approximately 13%. Though the trial court found that neither party’s valuation of the marital assets bore “indicia of reliability,” we find the division of the martial assets to be inequitable.

Here, the property division ordered by the trial court combined with the lack of alimony awarded to the wife and the wife’s complete disability leaves the wife with insufficient means to meet her basic expenses. Also, the award of approximately 13% of the parties’ assets to the wife is on par with the awards held to be inequitable in Kaufman v. Kaufman, supra, and Adams v. Adams, supra. Under these facts and in view of the length of the parties’ marriage, we conclude that the trial court’s property division and alimony award were inequitable.

Based on the foregoing, we reverse the judgment and remand the case for the trial court to enter a judgment fashioning an equitable property division and alimony award.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The wife testified at trial that the $69.40 figure for life insurance was actually a quarterly expense, which would make the monthly figure closer to $23 per month.

      . In his brief to this court, the husband claims that the parties' residence and surrounding real property was sold pursuant to the trial court's December 19, 2005, order and that the proceeds were divided equally between the parties. The wife claims in her brief that she received approximately $15,000 for her interest in the house and property. However, there is no evidence in the record establishing how much the house and property were sold for or how much was distributed to the parties. Therefore, we do not consider the disposition of the house and property in our analysis of the property division.


author: CRAWLEY, Presiding Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Billy SMITH.
    2040991.
    Court of Civil Appeals of Alabama.
    Oct. 27, 2006.
    James H. Anderson of Beers, Anderson, Jackson, Patty, Van Heest & Fawal, P.C., Montgomery, for appellant.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery; and David E. Allred and D. Craig Allred of David E. Allred, P.C., Montgomery, for appellee.
   CRAWLEY, Presiding Judge.

Billy Smith was injured in an automobile accident on May 2, 1997. Smith was insured by two State Farm Mutual Automobile Insurance Company (“State Farm”) automobile-insurance policies that provided a combined total of $50,000 in uninsured/underinsured-motorist (“UM/UIM”) coverage. The driver of the automobile that collided with Smith’s vehicle was insured; her policy limits were $25,000, which were paid to Smith. Smith sought payment of the policy limits of his UM/ UIM coverage from State Farm; State Farm refused to pay Smith any UM/UIM benefits. Smith sued State Farm, alleging breach of contract and bad-faith failure to pay his UM/UIM claim. The case proceeded to trial, at which State Farm sought a judgment as a matter of law (“JML”) on the bad-faith claim both at the close of Smith’s evidence and at the close of all the evidence; both motions were denied. The jury returned a verdict in favor of Smith and against State Farm on the bad-faith claim in the amount of $25,000. After its postjudgment motion for a JML was denied, State Farm appealed, arguing that the bad-faith claim should never have been submitted to the jury and, thus, that it was entitled to a JML on that claim.

“[T]his court reviews the trial court’s action [on a motion for a JML] using the same standard used by the trial court in initially granting or denying the motion for a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 8 (Ala.1997). Regarding questions of fact, the issue is whether the nonmovant presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). The nonmov-ant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a ruling on a motion for a JML, this court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Indus., Inc. v. Pate, 678 So.2d 724 (Ala.1996).”

City of Mobile v. Taylor, 938 So.2d 407, 409 (Ala.2005).

The record reveals the following facts. Smith was not transported to the emergency room after his May 2, 1997, accident. He went to see his family doctor, Dr. John Jernigan, on May 6, 1997. He reported to Dr. Jernigan that he had been in an accident, that his neck continued to hurt, and that he had noticed a tingling down his left arm and some loss of strength in that arm as well. Dr. Jernigan concluded that Smith had a simple cervical strain, but he recommended an MRI to rule out any significant injury. The MRI, which was performed on May 15, 1997, revealed a small herniated disk at the C3-C4 level, according to Dr. Robert P. Ei-chelberger, the radiologist who interpreted the MRI. Dr. Jernigan testified that Smith’s symptoms, especially the tingling and numbness in his left arm, were consistent with a herniated disk and that a herniated disk can be caused by an automobile accident.

Dr. Jernigan referred Smith to Dr. Warner L. Pinchback, an orthopedic surgeon, for evaluation and treatment of the herniated disk. Dr. Pinchback treated Smith conservatively, relying on physical therapy to alleviate Smith’s symptoms. The physical-therapy notes reveal that Smith followed his physical-therapy regimen and that he saw an increase in range of motion, strength, and generalized function at the completion of therapy on June 20, 1997. The notes also indicate that the therapist had noted a decrease in subjective complaints of pain and discomfort from Smith since the start of therapy. Dr. Pinchback released Smith on June 23,1997, indicating in his records that Smith’s symptoms had improved and that he would not have any permanent impairment from the injury.

However, according to Dr. Jernigan, although the physical therapy helped Smith a great deal, it did not resolve all of his pain. Dr. Jernigan testified that, because Smith continued to complain of pain, in October 1997 he referred Smith to Dr. Patrick Ryan, a neurosurgeon, who recommended that Smith undergo surgery. Dr. Jernigan’s medical records, however, do not include any record of Smith continuing to complain of pain from the herniated disk; nor do his records reveal that he referred Smith to Dr. Ryan in October 1997. In fact, Dr. Jernigan’s notes on Smith’s July 10, 1997, visit for a follow up on treatment for sinusitis indicate that Smith’s neck was “doing fine” and that Smith “occasionally ha[d] a little tingling pain down the left arm.” Dr. Jernigan’s next note is dated September 30, 1998.

Dr. Ryan examined Smith on October 29, 1997. According to Dr. Ryan’s note from that date, Smith reported that the jar to his neck from the accident was quite severe and that he had pain in his neck that radiated into his left arm. Smith complained to Dr. Ryan of continued neck pain and left-shoulder and arm pain. Dr. Ryan concluded that Smith would require surgery to repair what he referred to as a “quite large” disk herniation.

Smith’s UM/UIM claim was originally assigned by State Farm to Reggie Hurst; when Hurst was transferred within the company, Glenn Childress took over Smith’s claim. Childress’s main responsibility was to gather necessary information for assessing the claim. To that end, he sought from Smith’s attorney copies of Smith’s medical records and photographs of Smith’s damaged automobile. He submitted the information he gathered to Chad Carter, State Farm’s auto-claims team manager, who oversaw the handling of Smith’s claim and who ultimately made the decision not to pay Smith any UM/ UIM benefits.

Carter testified that his decision not to pay any UM/UIM benefits to Smith was based on his consideration of several factors. He noted that Smith had waited four days to seek treatment for his neck; that the May 1997 MRI was reported by Dr. Eichelberger to show only a small herniation; that Smith had reported to Dr. Jerni-gan that his automobile had sustained a large amount of damage; that Smith had told Dr. Pinchback that he “did not think much of the accident when it happened”; that after treatment by Dr. Pinchback and completion of physical therapy, Dr. Pinch-back released Smith, indicating that Smith was “doing fine” and that he saw “no long standing issues” relating to Smith’s injury; that a period of four to five months elapsed between Smith’s release from Dr. Pinchback and his appointment with Dr. Ryan; that Smith told Dr. Ryan that his automobile sustained a severe impact; and that Dr. Ryan suggested in his records that Smith had a large herniation instead of a small herniation as described by Dr. Eichelberger. Carter explained that he felt that proximate cause was an issue in the case and that, based on his experience, Smith’s ease was likely worth approximately $15,000. Because that amount was less than the amount of the insurance settlement that Smith had received from the other driver, Carter did not authorize the payment of any UM/UIM benefits to Smith.

The General Law of Bad Faith

In Ex parte Simmons, 791 So.2d 371, 378-79 (Ala.2000), our supreme court discussed both “normal” and “abnormal” bad-faith failure to pay insurance benefits:

“In Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968 (Ala.1998), we stated:
‘[National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982)] set out these requirements for a plaintiff to prove a bad-faith failure to pay:
“ ‘ “(a) an insurance contract between the parties and a breach thereof by the defendant;
“ ‘ “(b) an intentional refusal to pay the insured’s claim;
“ ‘ “(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“ ‘ “(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“ ‘ “(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.”
“ ‘417 So.2d at 183. Requirements (a) through (d) represent the “normal” case. Requirement (e) represents the “abnormal” case.
“ ‘The rule in “abnormal” cases dispensed with the predicate of a prever-dict JML [judgment as a matter of law] for the plaintiff on the contract claim if the insurer had recklessly or intentionally failed to properly investigate a claim or to subject the results of its investigation to a cognitive evaluation. Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661 (Ala.1995); Thomas v. Principal Financial Group, 566 So.2d 735 (Ala.1990). A defendant’s knowledge or reckless disregard of the fact that it had no legitimate or reasonable basis for denying a claim may be inferred and imputed to an insurer when it has shown a reckless indifference to facts or proof submitted by the insured. Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916, 924 (Ala.1981).
“ ‘So, a plaintiff has two methods by which to establish a bad-faith refusal to pay an insurance claim: he or she can prove the requirements necessary to establish a “normal” case, or, failing that, can prove that the insurer’s failure to investigate at the time of the claim presentation procedure was intentionally or recklessly omissive.’

732 So.2d at 976 (footnote omitted).”

Smith argues that State Farm’s refusal to pay him UM/UIM benefits amounts to “abnormal bad faith” because State Farm failed to adequately investigate his claim or to submit the results of that investigation to cognitive evaluation and review. Smith also argues that State Farm created its own debatable reason for failing to settle his claim. However, the evidence reveals that Carter did evaluate Smith’s claim by considering the medical records of his physicians. Smith appears to be arguing that, because State Farm did not dispute that the accident occurred or the fact that he either suffered a herniated disk or aggravated a preexisting herniated disk in the accident, its position that it should not to pay him any UM/UIM benefits is untenable. However, State Farm has consistently maintained that it questioned whether Smith’s need for surgery was truly caused by the accident. That is, State Farm contested whether the accident proximately caused the full extent of Smith’s injuries. We do not agree with Smith that State Farm “created” a debatable reason to deny Smith’s claim, that State Farm failed to investigate Smith’s claim, or that State Farm failed to subject its decision not to pay UM/UIM benefits to cognitive evaluation and review. State Farm had a legitimate reason to dispute the extent of Smith’s damages resulting from the May 1997 accident. Thus, we conclude that Smith did not present substantial evidence of “abnormal bad faith” on the part of State Farm.

Bad Faith in the UM/UIM Context

State Farm argued to the trial court and argues on appeal that its decision not to pay any UM/UIM benefits to Smith could not have amounted to bad faith because Smith had not established that he was legally entitled to collect from the other driver damages above and beyond the $25,000 settlement he had already received from the other driver’s insurer. Our supreme court has on several occasions considered when a UM/UIM insurance carrier’s failure to pay benefits to its insured can amount to bad faith. See Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557 (Ala.2005); Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149 (Ala.2001); LeFevre v. Westberry, 590 So.2d 154 (Ala.1991); Bowers v. State Farm Mut. Auto. Ins. Co., 460 So.2d 1288 (Ala.1984); and Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033 (Ala.1983). In Quick, the court stated that “there can be no breach of an uninsured motorist contract, and therefore no bad faith, until the insured proves that he is legally entitled to recover.” Quick, 429 So.2d at 1035. The court explained that to show that he was “legally entitled to recover,” an insured must establish that the uninsured motorist was at fault and legally liable for damages and must also prove the extent of those damages. Id.

Because in Quick there existed a question regarding the amount of benefits due under the policy, i.e., a question regarding the damages to which the insured was entitled, the supreme court affirmed a summary judgment in favor of the insurer on the insured’s bad-faith claim. Id. The supreme court affirmed a summary judgment in favor of the insurer on its insured’s bad-faith claim in Bowers as well, stating that a fact question regarding liability existed because the uninsured motorist had sued the insured, alleging that the driver of the insured’s car had been negligent in causing the collision; the Bowers court stated that the insurer “had a clear right to delay its payment [of uninsured-motorist benefits] until its liability was established.” Bowers, 460 So.2d at 1290.

The supreme court further explained the reasoning behind the rationale employed in Quick and Bowers in LeFevre. Relying in large part on language from Quick, the court noted the difference between first-party insurance coverage and uninsured-motorist coverage:

“ ‘[TJhere is an inherent difference in uninsured motorist coverage and first party insurance. The provisions of uninsured motorist coverage reorder the normal postures between an insured and an insurer. Thus, until the liability of the uninsured motorist has been determined, the insurer and insured occupy an adversary position toward each other.’

“[Quick,] 429 So.2d at 1035.

“Uninsured motorist coverage in Alabama is a hybrid in that it blends the features of both first-party and third-party coverage. The first-party aspect is evident in that the insured makes a claim under his own contract. At the same time, however, third-party liability principles also are operating in that the coverage requires the insured to be ‘legally entitled’ to collect — that is, the insured must be able to establish fault on the part of the uninsured motorist and must be able to prove the extent of the damages to which he or she would be entitled. The question arises: when is a carrier of uninsured motorist coverage under a duty to pay its insured’s damages?
“There is no universally definitive answer to this question or to the question when an action alleging bad faith may be maintained for the improper handling of an uninsured or underinsured motorist claim; the answer is, of course, dependent upon the facts of each case. Clearly, there is a covenant of good faith and fair dealing between the insurer and the insured, as with direct insurance, but the insurer and the insured occupy adverse positions until the uninsured motorist’s liability is fixed; therefore, there can be no action based on the tort of bad faith based on conduct arising prior to that time, only for subsequent bad faith conduct.”

LeFevre, 590 So.2d at 159 (emphasis added). The court then outlined guidelines to govern an insurer’s handling of an uninsured-motorist claim by its insured:

“Any procedure, of course, must take into consideration the facts and circumstances of each case, but the following general rules should apply:
“1. When a claim is filed by its insured, the uninsured motorist carrier has an obligation to diligently investigate the facts, fairly evaluate the claim, and act promptly and reasonably.
“2. The uninsured motorist carrier should conclude its investigation within a reasonable time and should notify its insured of the action it proposes with regard to the claim for uninsured motorist benefits.
“3. Mere delay does not constitute vexatious or unreasonable delay in the investigation of a claim if there is a bona fide dispute on the issue of liability.
“4. Likewise, mere delay in payment does not rise to the level of bad faith if there is a bona fide dispute on the issue of damages.
“5. If the uninsured motorist carrier refuses to settle with its insured, its refusal to settle must be reasonable.”

Id. at 161 (footnotes omitted; emphasis added).

The facts of LeFevre are similar to those in the present case: at first, the insured’s injuries were characterized as minor; however, over time, the injury worsened. The insured in LeFevre had a fractured foot. LeFevre, 590 So.2d at 161. Later the insured required surgery, which, at first, appeared to have benefited the insured but subsequently resulted in complications that required an amputation of the insured’s leg below the knee. Id. Noting that the insurer received conflicting reports on the extent of the insured’s damages, our supreme court commented that the insured had not proven the extent of his damages at the time that the insurer received notice of and considered the claim and that the insured had not demonstrated that “ ‘the insurer has acted with an intent to injure.’ ” Id. at 161-62 (quoting King v. National Found. Life Ins. Co., 541 So.2d 502, 505 (Ala.1989)). The court held, therefore, that the insurer could not be liable for bad faith because “the record reveals a legitimate dispute between the insurer and the insured relating to the amount of liability of the uninsured motorist.” Id. at 162.

In the present case, Carter was provided information that indicated that Smith’s neck injury was a minor cervical strain that appeared to resolve over a short span of time with conservative treatment. A few months later, Smith sought surgery for the same injury, despite there being no record of continued complaints by Smith to Dr. Jernigan or Dr. Pinchback. Thus, Carter evaluated the claim and considered that Smith’s injury might not have resulted solely from the May 1997 accident. Because Carter felt that a legitimate basis for disputing the amount of damages to which Smith was entitled to as a result of the accident existed, he did not authorize the payment of any of the UM/UIM benefits potentially available to Smith under his policies. The evidence Smith adduced at trial, which established that his need for surgery did result from the May 1997 accident, was not substantial evidence indicating that State Farm’s decision not to authorize payment of Smith’s available UM/ UIM benefits amounted to bad faith.

Because Smith had not established the extent of his damages and because State Farm disputed whether all the damages claimed by Smith were attributable to the May 1997 accident, State Farm’s decision not to authorize payment of all or part of Smith’s UM/UIM benefits could not have amounted to bad faith. Accordingly, State Farm was entitled to a JML on Smith’s bad-faith claim. The trial court’s judgment denying State Farm’s postjudgment JML is reversed, and the cause is remanded for the trial court to enter a judgment in favor of State Farm on Smith’s bad-faith claim.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . The jury also found in favor of Smith and against State Farm on Smith’s breach-of-contract claim; however, State Farm did not appeal that aspect of the judgment, which is not relevant to the resolution of this appeal.


author: BASCHAB, Judge.

text:
    Ralph TUCKER v. STATE of Alabama.
    CR-05-0574.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.
    Rehearing Denied Aug. 18, 2006.
    Certiorari Denied Nov. 9, 2006 Alabama Supreme Court 1051737.

      Ralph Tucker, pro se.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Ralph Tucker, was indicted for first-degree sodomy, production of obscene matter, and first-degree rape. On April 5, 1994, pursuant to a negotiated agreement, he pled guilty to second-degree sodomy in case number CC-92-5058; attempted production of obscene matter in case number CC-92-5059; and second-degree rape in case number CC-92-5063. The trial court sentenced him, as a habitual offender, to serve concurrent terms of twenty-five years in prison on each conviction. See § 13A-5-9(b)(2), Ala.Code 1975. The appellant filed a notice of appeal, but we dismissed his appeal and issued a certificate of judgment on January 17, 1995. See Tucker v. State, (CR-93-1459) 668 So.2d 935 (Ala.Crim.App.1994) (table). On or about February 14, 1997, the appellant filed a Rule 32 petition, which the circuit court summarily denied. He filed a notice of appeal, but we dismissed his appeal. See Tucker v. State, (CR-99-2453) 814 So.2d 1027 (Ala.Crim.App.2000) (table). On December 7, 2004, the appellant filed the present Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

I.

The appellant argues that he is entitled to post-conviction relief because:

1) his sentence was illegal because he allegedly was not sentenced in accordance with his plea agreement;
2) he was constructively denied counsel before and during his guilty plea proceedings because his attorney did not consult with him and did not investigate his case; and
3) he did not knowingly and voluntarily waive the right to counsel on direct appeal.

However, these claims are nonjurisdictional claims that are time-barred. See Rule 32.2(c), Ala. R.Crim. P.

II.

The appellant also argues that the trial court did not have jurisdiction to render judgments and impose sentences in his cases because he allegedly pled guilty to offenses for which he had not been indicted.

A.

Initially, the appellant contends that the trial court did not have jurisdiction to accept his guilty plea to attempted production of obscene matter in case number CC-92-5059. Specifically, he asserts that attempted production of obscene matter is not a lesser included offense of production of obscene matter. However, § 13A-l-9(a), Ala.Code 1975, provides, in pertinent part:

“A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(2) It consists of an attempt or solicitation to commit the offense charged .... ”

Because attempted production of obscene matter is a lesser included offense of production of obscene matter, the indictment against the appellant was not void, and his argument is without merit.

To the extent the appellant attempts to challenge the factual basis to support his guilty plea to attempted production of obscene matter, that argument is precluded because he could have raised it at trial and on appeal, but did not, and because it is time-barred. See Rules 32.2(a)(3), (a)(5), and (c), Ala. R.Crim. P.

B.

The appellant also contends that the trial court did not have jurisdiction to accept his guilty pleas to second-degree sodomy and second-degree rape in case numbers CC-92-5058 and CC-92-5063. Specifically, he asserts that, under the facts of his ease, second-degree sodomy and second-degree rape were not lesser included offenses of first-degree sodomy and first-degree rape. The indictment in case number CC-92-5058 alleged that the appellant

“did engage in deviate sexual intercourse with [C.C.] who was less than twelve years of age, he ... being 16 years old or older, in violation of § 13A-6-63 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(A.C.R. 11.) The indictment in case number CC-92-5063 alleged that the appellant

“did engage in sexual intercourse with [K.M.M.], a female, who was less than twelve years of age, he ... being sixteen years or older, in violation of Section 13A-6-61 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(A.C.R. 73.)

We addressed a similar situation in R.J.K. v. State, 782 So.2d 851, 851-52 (Ala.Crim.App.2000), as follows:

“The appellant, R.J.K., was charged with rape in the first degree, a violation of § 13A-6-61(a)(3), Ala.Code 1975. During the guilty plea proceeding, the state moved to amend the indictment to charge rape in the second degree, a violation of § 13A-6-62(a)(l), Ala.Code 1975. R.J.K. agreed to the amendment, and he pleaded guilty to rape in the second degree. The trial court sentenced R.J.K., who admitted to having two prior felony convictions, to 20 years’ imprisonment.
“Though it was not raised in R.J.K’s brief to this court, our review of the record has revealed a jurisdictional defect. ‘This court can review a jurisdictional issue at any time, even if the issue is not raised by the appellant. See Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987).’ Lanier v. State, 733 So.2d 931 (Ala.Crim.App.1998). ‘An indictment cannot be amended to charge an offense that was not encompassed in the original indictment. See Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988).’ Hall v. State, 655 So.2d 51, 52 (Ala.Crim.App.1995). Here, the indictment charged R.J.K. with rape in the first degree. Section 13A-6-61 provided, at the time of the offense in this case:
“ ‘(a) A male commits the crime of rape in the first degree if:
“ ‘(3) He, being 16 years or older, engages in sexual intercourse with a female who is less than 12 years old.’
“The indictment was amended to charge rape in the second degree, which is defined in § 13A-6-62, Ala.Code 1975:
“ ‘(a) A male commits the crime of rape in the second degree if:
“ ‘(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.’
“This court stated in Ross v. State, 529 So.2d 1074, 1075 (Ala.Crim.App.1988):
“ ‘The instant indictment [charging Ross with first-degree rape] does not encompass, as a lesser included offense, the charge of rape in the second degree.
“ ‘ “In the context of the offensef ] for which the appellant was indicted, rape in the first degree requires proof that the victim is less than 12 years old while rape in the second degree requires proof that the victim is less than 16, but more than 12 years old. Therefore, rape in the second degree is not a lesser included offense of rape in the first degree, since the proof necessary to establish the offense of rape in the first degree (the greater offense) does not of necessity establish every element of the offense of rape in the second degree (the lesser offense). See Commentary to § 13A-1-9 Code of Alabama 1975. It must be impossible to commit the greater offense without first committing the lesser offense if the lesser offense is to be an included offense of the greater. Sharpe v. State, 340 So.2d 885 (Ala.Crim.App.), cert. denied, 340 So.2d 889 (Ala.1976).
“ ‘ “The age factor necessarily distinguishes these two offenses and makes them separate and distinct crimes. The offenses of first and second degree rape each require proof of a certain age of the victim that the other does not require. Because of this difference, you cannot commit second degree rape while committing first degree rape.”
‘Allen v. State, 472 So.2d 1122, 1125-26 (Ala.Crim.App.1985)(emphasis added [in Ross ]).’
“(Footnotes omitted). Here, the indictment was amended to charge second-degree rape. The trial court was without jurisdiction to accept a plea on this offense because the indictment could not be amended to charge an offense not encompassed in the charge in the original indictment. Hall, 655 So.2d at 52. The trial court erred in accepting R.J.K’s plea of guilty to rape in the second degree.
“Accordingly, the trial court’s judgment is void and R.J.K.’s sentence is hereby set aside. The indictment charging R.J.K. with rape in the first degree, in violation of § 13A-6-61(a)(3), Ala. Code 1975, remains valid.”

(Footnote omitted.) Also, this court has held that second-degree sodomy is not a lesser included offense of first-degree sodomy pursuant to § 13A-6~63(a)(3), Ala. Code 1975. See R.W.L. v. State, 706 So.2d 1314 (Ala.Crim.App.1997).

Because the appellant was indicted for first-degree sodomy pursuant to § 13A-6-63(a)(3), Ala.Code 1975, and first-degree rape pursuant to § 13A-6-61(a)(3), Ala. Code 1975, second-degree sodomy and second-degree rape were not lesser included offenses in these cases. Therefore, the trial court did not have jurisdiction to accept guilty pleas to second-degree sodomy and second-degree rape, and the appellant’s convictions for second-degree sodomy and second-degree rape are void. However, the indictments for first-degree sodomy and first-degree rape remain valid. See R.J.K., supra.

For the above-stated reasons, we affirm the circuit court’s judgment with regard to the appellant’s conviction for attempted production of obscene matter in case number CC-92-5059. With regard to the appellant’s second-degree sodomy conviction in case number CC-92-5058 and second-degree rape conviction in case number CC-92-5063, we reverse the circuit court’s judgment and remand this case to that court for proceedings that are consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McMILLAN, PH., and COBB, SHAW, and WISE, JJ., concur.

      . We have taken judicial notice of the record from the appellant’s direct appeal. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998).


author: PER CURIAM.

text:
    Marc Lee STOINSKI v. STATE of Alabama.
    CR-04-2527.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Sept. 15, 2006.
    Certiorari Denied Nov. 9, 2006 Alabama Supreme Court 1060022.

      Sandra Carlin Guin, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Marc Lee Stoinski, was convicted of two counts of first-degree theft of property, a violation of § 13A-8-3, Ala Code 1975, and one count of receiving stolen property in the first degree, a violation of § 13A-8-17, Ala.Code 1975. He was sentenced to 10 years’ imprisonment for each conviction, with the sentences to run consecutively. However, pursuant to the Split Sentence Act, § 15-18-8, Ala. Code 1975, Stoinski’s sentence as to one of the first-degree-theft convictions was suspended, and he was ordered to serve six months in the county jail, followed by five years of supervised probation. The court indicated that it would revisit its sentences as to the other first-degree-theft conviction and the receiving-stolen-property conviction at a later time. Stoinski was also ordered to pay $50 to the crime victims compensation fund, restitution, and attorney fees.

The evidence adduced at trial established that Lt. Byron Douglas Wade of the Tuscaloosa County Sheriffs Department participated in an investigation involving numerous thefts of tractors, trailers, trucks, and four-wheeled all-terrain vehicles. A tip from an anonymous source led the investigators to a residence in Cotton-dale. A person at the residence gave them the name of Michael Kimbrough as a person who was involved in the thefts.

Investigators interviewed Kimbrough, who supplied the name of Larry Spencer as someone who might be involved in the thefts. Investigators interviewed Spencer and obtained information that led to the recovery of a four-wheel-drive Kubota brand tractor in Perry County, along with other equipment, which was returned to the owner. Lt. Wade testified that a stolen box blade was recovered from the property of Roger Miller. In an interview with Kristal Barger, Kimbrough’s girlfriend, Lt. Wade was given Stoinski’s name as an accomplice in the thefts.

Michael Kimbrough testified for the State pursuant to a plea agreement in which he had pleaded guilty to 7 felony charges and received a sentence of 18 years’ imprisonment, no probation, the State agreeing not to oppose his parole. He testified that he and Stoinski stole a Kubota brand tractor from ARC Rental Service in Tuscaloosa County. He stated that he met Stoinski in Stoinski’s driveway on the evening of the theft. A short time later, Barger arrived and the three of them drove in Stoinski’s truck to ARC Rental Service. Kimbrough testified that Barger was intoxicated from alcohol and methamphetamine at the time, that she had nothing to do with the theft, and that she was just riding with them. Kim-brough testified that Barger did not participate in the thefts and that she received no monetary gain from the sale of the stolen equipment.

Kimbrough testified that he, Barger, and Stoinski arrived at ARC Rental Center around midnight. He and Stoinski then hooked up a Kubota brand tractor to the back of Stoinski’s truck and drove the tractor to the property of an individual named Roger Miller in Shelby County. According to Kimbrough, Larry Spencer paid him approximately $2,500 for the tractor the next afternoon. Kimbrough gave Stoinski approximately $750 of that money.

Within a few days, Larry Spencer contacted Kimbrough about stealing another Kubota brand tractor because Roger Miller had wanted one with four-wheel drive rather than the two-wheel drive tractor that they had stolen. Kimbrough drove around until he located such a tractor at a worksite at Townsend Ford, a Ford automobile dealership in Tuscaloosa. Kim-brough wrote down the model number and gave this information to Larry Spencer; Larry Spencer called Kimbrough and confirmed that the tractor Kimbrough had located was the model Roger Miller wanted.

Kimbrough testified that Stoinski came to his apartment around midnight that same night and the two men proceeded to Townsend Ford in Kimbrough’s truck to steal the tractor. Stoinski “hot-wired” the tractor, started it, and Kimbrough drove the tractor onto the equipment trailer attached to his truck. Stoinski then held the brake down on the truck to stabilize it while Kimbrough drove the tractor onto the bed of the trailer. The two men then delivered the tractor to Roger Miller’s land in Shelby County and left it there.

Kimbrough testified that Larry Spencer paid him $1,500 for the second tractor. He gave $750 of the money to Stoinski. Because Kimbrough was expecting Spencer to pay substantially more money for the second tractor, Kimbrough decided to “repossess” the stolen tractor from Miller’s property. Kimbrough and another individual took the second tractor to C & S Fabrication in Moundville and sold it to a man who owned a farm in Perry County.

Barger testified that, on the evening of the first tractor theft, a friend dropped her off at Stoinski’s house. Barger talked to Kimbrough and Stoinski for awhile and then rode with them in Stoinski’s truck to ARC Rental Center. Although she had taken the antidepressant Xanax that night, she remembered Kimbrough and Stoinski attaching an equipment trailer to the truck to transport a tractor and that they then drove to the community of Greenpond. Barger testified that Kimbrough located a hidden key and unlocked the gate to the property; they unloaded the tractor and then drove back to Tuscaloosa. Barger also testified that she was with Kimbrough when he went to check out the tractor on the work site at Townsend Ford. She stated that, at Kimbrough’s apartment, she overheard a conversation between Kim-brough and Stoinski regarding stealing some equipment from Townsend Ford and taking it back to Greenpond. At the con-elusion of that conversation, Kimbrough and Stoinski left the apartment.

Barger stated that she gave Stoinski’s name to law-enforcement officers as a suspect. She also testified that Larry Spencer was paying Kimbrough for the tractors.

Larry Spencer testified that he was acquainted with Roger Miller. Spencer had provided some four-wheel all-terrain vehicles to Miller in the past. Miller approached Spencer and told him that he was interested in a Kubota brand tractor. Because Spencer knew that Kimbrough was stealing tractors, he offered to introduce Miller to Kimbrough. Spencer stated that he knew Stoinski because they lived near each other, but that he did not know that Stoinski was involved in stealing the tractors. Spencer claimed that he paid Kimbrough between $2,300 and $2,500 for the first tractor, and $2,500 for the second tractor.

Pursuant to a negotiated plea agreement, Miller testified that he was acquainted with Larry Spencer. Miller had asked Spencer to locate a Kubota brand tractor for him, and Spencer agreed to do so. The first tractor Spencer provided was two-wheel drive and too small for Miller’s needs; Miller told Spencer that he wanted a larger, four-wheel drive tractor. Miller testified that both tractors were taken to and left on his property in Shelby County, but that he had instructed Spencer that the two-wheel drive tractor was not the model he wanted. Miller stated that he did not know Stoinski.

Phillip Hudson, owner of Renovations Plus, stated that his tractor was stolen from a job site at Townsend Ford. He described the tractor as a used Kubota brand tractor for which he had paid $15,000. Hudson testified that his insurer paid only $11,000 for his loss claim and that he had had to spend $19,000 to replace the tractor. Rick Price, owner of ARC Rental Center, testified that the following items were stolen from his place of business: a two-wheel drive Kubota brand tractor, a box blade, a post-hole digger, a Bush Hog brand mowing machine, and a 16-foot equipment trailer. Price estimated the value of the tractor was approximately $11,000 to $12,000 and the value of the remaining items was approximately $1,500.

At the close of all of the evidence, the jury returned a verdict finding Stoinski guilty of two counts of first-degree theft of property and two counts of first-degree receiving stolen property. However, the trial court subsequently set aside one of the convictions for first-degree receiving stolen property on the ground that the conviction was based on uncorroborated accomplice testimony.

I.

Count I of the multi-count indictment against Stoinski charged him with receiving stolen property in the first degree in regard to a Kubota brand tractor, a 16-foot trailer, a post-hole digger, a box blade, and a Bush Hog brand mowing machine, all owned by ARC; Count III of the indictment charged Stoinski with theft of property in the first degree in regard to the same property. Both counts were submitted to the jury for its determination. The jury returned a verdict finding Stoinski guilty of both counts.

Stoinski argues that the trial court erred when it allowed both convictions to stand. Stoinski further argues that it was improper for the trial court to submit both charges to the jury.

With regard to the offense of receiving stolen property, § 13A-8-16(a), Ala.Code 1975, provides:

“A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

Generally, under Alabama law a person may not be convicted of receiving stolen property and theft of property as to the same property. As the Alabama Supreme Court held in Ex parte Howard, 710 So.2d 460 (Ala.1997):

“Alabama has a firmly established rule of law recognizing that a person cannot be convicted of buying and receiving stolen property if that person actually stole the property in question. Ex parte Thomas, 445 So.2d 939 (Ala.1983); Scott v. State, 374 So.2d 316 (Ala.1979); Wasp v. State, 647 So.2d 81, 83 (Ala.Crim.App.1994); Dixon v. State, 536 So.2d 959, 961 (Ala.Crim.App.1988); Ogle v. State, 386 So.2d 493 (Ala.Crim. App.1980); Nicholson v. State, 369 So.2d 304 (Ala.Crim.App.1979). Where it is undisputed that a person stole property, that person may not be convicted of receiving or concealing the same property. See Poole v. State, 651 So.2d 1081, 1083-84 (Ala.Crim.App.1994); George v. State, 410 So.2d 476 (Ala.Crim.App.1982); Ex parte Wilcox, 401 So.2d 794, 795 (Ala.1981). Thus, if it is established, as a matter of factual adjudication, that a person is guilty of receiving stolen property, then it is a ‘logical impossibility’ that the defendant also stole the property in question. See Ogle v. State, supra, at 494.”

710 So.2d at 463-64. Accord Brown v. State, 821 So.2d 219, 226 (Ala.Crim.App.2000).

This case, however, is factually distinguishable from Ex parte Howard. In Ex parte Howard, the defendant had been convicted of stealing and retaining the same property. By contrast, Stoinski was convicted of stealing and disposing of the same property. Thus, this case is more akin to the facts of Smith v. State, 739 So.2d 545 (Ala.Crim.App.1999), in which this Court upheld both convictions.

In Smith, the defendant was convicted of theft of property in Georgia after stealing a leaf blower in Georgia; the defendant was subsequently convicted of receiving stolen property in Alabama because he pawned the leaf blower at an Alabama pawnshop. On appeal, Smith argued that he could not be convicted of receiving stolen property because he had already been convicted of stealing that same property in Georgia. Therefore, he argued, he could not be convicted of both stealing and receiving the same property. Rejecting Smith’s argument, this Court stated:

“We have found no Alabama case in which the precise issue now before us has been addressed. However, applying the rules of statutory construction and considering the purposes of the Criminal Code as well as the plain language of § 13A-8-16, Ala.Code 1975, we hold that, even when the evidence shows that the defendant stole the property he or she is subsequently charged with ‘receiving,’ a conviction for ‘receiving’ that stolen property is not prohibited if the evidence shows that the defendant disposed of the property, as opposed to merely receiving or retaining it. By setting forth the types of proscribed conduct in the alternative with the word ‘or,’ a reasonable interpretation of § 13A-8-16 is that receiving stolen property, retaining stolen property, and disposing of stolen property are ‘separate offenses.’
“The cases have stated that it is a ‘logical impossibility’ for a person who stole property to also receive that same property, because a person cannot receive property from himself. See Ex parte Howard, 710 So.2d 460, 463-64 (Ala.1997), and the cases cited therein. See also Scott v. State, 374 So.2d 316, 318 (Ala.1979) (quoting, in pertinent part, 76 C.J.S. § 14(b), ‘where one steals goods under such circumstances that the receiving thereof is a part of the theft itself, he cannot be convicted of receiving the stolen goods’). There is nothing logically impossible about a person stealing property and then disposing of that same property because those are separate and distinct courses of conduct.
“Therefore, we hold that a person who steals property may be convicted of receiving that same stolen property, under § 13A-8-16, Ala.Code 1975, if the evidence shows that he disposed of the property.
“2 We use the term ‘receiving’ here to mean the general offense proscribed by § 13A-8-16(a) and not one of the three prohibited courses of conduct set out in that statute.”

Smith v. State, 739 So.2d at 548 (emphasis supplied).

Here, the evidence established that Stoinski and Kimbrough stole the property in question from ARC Rental Center, then took the property and left it on Roger Miller’s property. Thereafter, Larry Spencer paid Kimbrough $2,500 for the property; Kimbrough gave Stoinski approximately $750 of that money. Accordingly, unlike the convictions in Ex parte Howard, Stoinski’s convictions were not based on the fact that he stole and retained ARC’S property. Rather, the convictions were based on the fact that he stole ARC’s property and subsequently disposed of the property. Based on this Court’s holding in Smith v. State, Stoinski was properly convicted of both first-degree theft of property and first-degree receiving stolen property with regard to the property stolen from ARC. Because Stoinski could be convicted of both charges, Stoin-ski’s claim that the State should have been required to elect which charge to submit to the jury is without merit. Accordingly, the trial court did not err in submitting both charges to the jury for its determination.

II.

Stoinski also argues that the trial court erred when it denied his motions for a judgment of acquittal and allowed the issue of his guilt to go to the jury. Specifically, he argues that the State failed to present a prima facie case proving two counts of theft of property in the first degree because the only testimony connecting him to the thefts came from accomplices and/or conspirators without any corroborating evidence. Our review of the record reveals that the State presented ample evidence to prove that Stoinski had committed each element of the offense of first-degree theft of property and sufficiently corroborated the accomplice testimony presented at trial. Thus, the trial court did not err when it denied Stoinski’s motions for judgment of acquittal.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim. App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘When reviewing a trial court’s denial of a motion for a judgment of acquittal, this court must determine “whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty.” ’ McCart v. State, 765 So.2d 21, 27 (Ala.Crim.App.1999), quoting Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993). See also Ex parte Fitkin, 781 So.2d 182, 183 (Ala.2000) (‘The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there was legal evidence before the court at the time the motion was made from which, by fair inference, the defendant could be found guilty.’).”

Ingram v. State, 878 So.2d 1208, 1210-11 (Ala.Crim.App.2003). Also, any “inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [goes] to the weight of the evidence and create[s a] question of fact to be resolved by the jury.” Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). “ ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the [trier of fact] to judge and determine.” ’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931). “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.” Johnson, 555 So.2d at 820. “ ‘When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.’ ” Rowell v. State, 647 So.2d at 69, quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982).

Section 13A-8-2, Ala.Code 1975, states that “[a] person commits the crime of theft of property if he or she ... [k]nowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property.” Section 13A-8-3 (a) states that “[t]he theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.”

At trial, the State offered the testimony of Larry Spencer and Roger Miller. Both men testified that Miller approached Spencer about obtaining a Kubota brand tractor. Spencer knew that Kimbrough stole tractors; he arranged for Miller to meet Kimbrough, and a tractor was procured. However, because the first tractor was too small, Miller requested a second tractor with four-wheel drive. Miller paid Spencer $2,000 to $2,500 for the first tractor and $2,500 for the second tractor.

Kimbrough testified that he and Stoinski stole the tractors from ARC Rental Center and the work site at Townsend Ford. Kim-brough testified that after stealing the tractors, the pair transported the tractors to Miller’s property in Shelby County. Kimbrough stated that he paid Stoinski a total of $1,500 from the money Spencer paid him for the tractors.

Through the testimony of Rick Price, the State proved that the Kubota brand tractor stolen from ARC Rental Center had been purchased for $11,000 to $12,000 and that the remainder of equipment stolen from the business was worth approximately $1,500. Through the testimony of Phillip Hudson, the State proved that the Kubota brand tractor stolen from the Townsend Ford job site was purchased for $15,000. Hudson was reimbursed only $11,000 by the insurance company, and Hudson’s total replacement cost was $19,000. Because there was ample evidence indicating that the property Stoinski stole included two tractors that were worth in excess of $2,500, the State presented sufficient evidence to support two counts of first-degree theft of property.

Regarding Stoinski’s claim that the accomplice testimony was not corroborated, his contention is without merit. The witnesses connecting Stoinski to the thefts were Michael Kimbrough and Kris-tal Barger. The State conceded that Kimbrough and two other men were accomplices/coconspirators. However, the evidence does not support Stoinski’s claim that Barger was also an accomplice as a matter of law. Barger denied any involvement in the theft, and she received no money from the thefts. Kimbrough’s testimony confirmed that Barger, who was intoxicated the night the first tractor was stolen from ARC Rental, was “just along for the ride” and took no part in the thefts. Thus, the question of Barger’s complicity was properly left for the jury’s determination. See Gavin v. State, 891 So.2d 907, 975 (Ala.Crim.App.2003). Thus, Barger’s testimony could be used to corroborate the accomplice testimony.

“ ‘ “The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.” Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.1986), affirmed, 500 So.2d 1256 (Ala.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987), citing, Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973) (emphasis supplied).’ Garrison v. State, 520 So.2d 219 (Ala.Cr.App.1987) (wherein accomplice testimony was sufficiently corroborated by a witness who testified that, prior to the incident, he overheard a conversation in which the appellant discussed plans for a burglary).”

Patterson v. State, 538 So.2d 44, 45 (Ala.Crim.App.1988).

“Corroboration need only be slight to suffice.” Ingle v. State, 400 So.2d 938, 940 (Ala.Crim.App.1981). “Whether such corroborative evidence exists is a question of law to be resolved by the trial court, its probative force and sufficiency being questions for the jury.” Caldwell v. State, 418 So.2d 168, 170 (Ala.Crim.App.1981). Kristal Barger’s testimony sufficiently corroborated Kimbrough’s testimony and therefore, connected Stoinski to the offense. Barger testified that she saw Stoinski and Kimbrough steal the Kubota brand tractor from ARC Rental Center and take it to Shelby County. Further, she testified that she was with Kimbrough when he went to Townsend Ford to check a Kubota brand tractor at the work site and that she heard a conversation between Stoinski and Kimbrough about stealing the Kubota brand tractor from Townsend Ford and taking it to Shelby County. Barger testified that Larry Spencer paid Kimbrough for stealing the tractors. Therefore, the trial court properly denied Stoinski’s motions for judgment of acquittal because there was evidence from which the jury could find that Barger was not an accomplice and that her testimony sufficiently corroborated the accomplice testimony presented at trial.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Stoinski was charged in a six-count indictment. Counts I and II charged him with first-degree receiving stolen property; Counts III and IV charged him with first-degree theft of property; and Counts V and VI charged him with criminal conspiracy to commit first-degree theft of property. At the close of the State's case, the trial court granted Stoinski’s motion for a judgment of acquittal as to Counts V and VI; thus, those charges were not submitted to the jury. The jury returned guilty verdicts against Stoinski on Counts IIV; however, the trial court set aside the jury’s verdict as to Count II because it concluded that the conviction was based on uncorroborated accomplice testimony.

      . The amount Spencer paid Kimbrough for the second tractor appears to be in question.

      . As previously noted, the amount Spencer paid Kimbrough for the second tractor is disputed. According to Kimbrough, Spencer paid him $1,500 for the second tractor. However, Spencer claimed he paid Kim-brough $2,500 for the second tractor.