author: MURDOCK, Judge.

text:
    Ex parte TRINITY AUTOMOTIVE SERVICES, LTD. (In re Trinity Automotive Services, Ltd. v. Medical Supplies, L.L.C., and Robert Lewis). Trinity Automotive Services, Ltd. v. Medical Supplies, L.L.C.
    2040984 and 2041020.
    Court of Civil Appeals of Alabama.
    Dec. 29, 2006.
    Rehearing Applications Denied Feb. 16, 2007.
    Certiorari Denied June 15, 2007 Alabama Supreme Court 1060816.

      Dayna R. Burnett and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for petitioner/appellant Trinity Automotive Services, Ltd.
    Jason R. Eubanks, Slocumb, for respondent/appellee Medical Supplies, L.L.C.
   MURDOCK, Judge.

Trinity Automotive Services, Ltd. (“Trinity Automotive”), appeals from the judgment of the Geneva Circuit Court vacating the domesticated judgment it obtained in the Supreme Court of the State of New York, Nassau County, against Medical Supplies, L.L.C. (“Medical Supplies”). Trinity Automotive also petitions for a writ of mandamus directed to the Geneva Circuit Court, ordering that court to give full faith and credit to the New York judgment. We deny the petition and reverse and remand.

On November 9, 2001, Medical Supplies entered into an agreement with Shari Lyn Leasing Corp. for the lease of a 2002 Toyota Avalon. The lease was assigned to Sovereign Bank, which subsequently assigned it to Trinity Automotive. Paragraph 14 of the lease agreement provides in pertinent part:

“14. Legal Matters: This lease shall be interpreted in accordance with the State of New York and regardless of the order in which the signatures of the parties are affixed, it shall be deemed executed at lessor’s place of business designated herein and in the county thereof, in the State of New York; Lessee and any guarantor hereof consent to the jurisdictions of any state or federal court located within the State of New York and agree that all actions or proceedings arising, directly or indirectly, from this lease shall be mitigated only in courts having such situs.... ”

Medical Supplies defaulted on the lease agreement. Trinity Automotive brought suit against Medical Supplies and Robert Lewis in the Supreme Court of New York, Nassau County, to recover $29,530.06, which it alleged was due and owing on the lease, along with interest and costs. On November 19, 2004, after Medical Supplies and Lewis failed to answer Trinity Automotive’s complaint or otherwise appear in the action, the New York court entered a default judgment in Trinity Automotive’s favor in the amount of $31,124.11.

On May 29, 2005, pursuant to the Uniform Enforcement of Foreign Judgments Act, Ala.Code 1975, § 6-9-230 et seq., Trinity Automotive filed the New York judgment in the Geneva Circuit Court for the purpose of domesticating the judgment and enforcing it in Alabama against Medical Supplies and Lewis. On March 31, 2005, the Geneva Circuit Court entered an order domesticating the New York judgment.

On April 27, 2005, Medical Supplies filed a “Motion to Set Aside and/or Vacate the Judgment,” pursuant to Rules 55 and 59, Ala. R. Civ. P. Medical Supplies argued that the New York court lacked in person-am jurisdiction over it, and that the judgment the New York court entered was therefore “improperly obtained.” Medical Supplies filed a brief in support of its motion, as well as the affidavit of James Anthony Eubanks, who was, at that time, Medical Supplies’s sole member. In his affidavit, Eubanks stated:

“Medical Supplies is a limited liability company organized and existing in Geneva County, Alabama with its principal place of business in Geneva County, Alabama. It is a small company with only the one office in Geneva County, Alabama, and is limited to serving primarily the local area with durable medical equipment. The company has no office, employees, telephone numbers, assets, bank accounts or any other contacts with the State of New York.”

Trinity Automotive filed a response to the motion on June 1, 2005. The trial court held a hearing on the motion on June 2, 2005.

On July 7, 2005, the trial court entered a judgment granting Medical Supplies’ motion and vacating the domesticated judgment. The trial court found that Medical Supplies did not have contacts with the State of New York sufficient from a due process standpoint, to vest the New York Supreme Court in Nassau County with personal jurisdiction over Medical Supplies and that the forum-selection clause in the lease agreement was unenforceable.

On August 15, 2005, Trinity Automotive filed a petition for a writ of mandamus with this court, seeking an order directing the trial court to enforce the New York judgment. On August 18, 2005, Trinity Automotive filed a notice of appeal. On August 26, 2005, this court consolidated Trinity Automotive’s petition and appeal ex mero motu.

Trinity Automotive contends that the trial court erred when it found that the forum-selection clause contained in the lease agreement was unenforceable. According to Trinity Automotive, the facts in this case demonstrate that the forum-selection clause, by which Medical Supplies consented to the jurisdiction of New York courts for the resolution of all litigation related to the lease agreement, is fully enforceable and constitutes a waiver of Medical Supplies’s due-process rights with regard to personal jurisdiction.

As a threshold matter, we note that, although Medical Supplies filed its motion to set aside or vacate the foreign judgment pursuant to Rules 55 and 59, Ala. R. Civ. P., Medical Supplies did not challenge as flawed the process by which Trinity Automotive domesticated its judgment in the Geneva Circuit Court. Compare Bartlett v. Unistar Leasing, 931 So.2d 717, 720-21 (Ala.Civ.App.2005) (noting similarly that that case was “not a case in which the judgment debtor ... argue[d] that Rule 59(e) is an appropriate vehicle for relief from a domesticated judgment because the domestication process in the Alabama court was, itself, flawed”). Instead, Medical Supplies’ challenge was directed at the underlying New York judgment, specifically whether the New York court had jurisdiction over Medical Supplies. Both our Supreme Court and this court have held that the appropriate procedural mechanism by which to collaterally attack a foreign judgment on the basis that the judgment is void for lack of jurisdiction is by a motion filed pursuant to Rule 60(b)(4). See Ex parte Lyon Fin. Servs., Inc., 775 So.2d 181, 188 (Ala.2000); Bartlett, 931 So.2d at 720-21. Accordingly, for purposes of our review of the trial court’s action in this case, we assume the trial court treated Medical Supplies’s motion as one seeking relief from a void judgment under Rule 60(b)(4). Compare McLendon v. Hepburn, 876 So.2d 479, 483 (Ala.Civ.App.2003) (noting that “if the ... motion had been construed as a Rule 59(e) motion, [it] would have been due to be dismissed on procedural grounds” and that the trial court’s actions were consistent with the treatment of the motion as a Rule 60(b) motion).

Turning now to Trinity Automotive’s petition for a writ of mandamus, we observe what has often been observed by both this court and our Supreme Court: “Mandamus is an extraordinary remedy. An appellate court will grant a petition for a writ of mandamus only when ‘... the petitioner has no other adequate remedy’ ” and the other requirements for the issuance of such a writ are satisfied. See, e.g., Ex parte Amerigas, 855 So.2d 544, 546 (Ala.Civ.App.2003) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (citing Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala.1997))). Subject to certain exceptions, when an appeal is not considered to be an “adequate remedy,” “[i]t is now a well-established general rule in this state that if the matters complained of can ultimately be presented by an appeal, a writ of mandamus will not be issued.” Ex parte Spears, 621 So.2d 1255, 1256 (Ala.1993) (citing Ex parte Fowler, 574 So.2d 745 (Ala.1990)). The trial court’s order granting Medical Supplies’s motion and vacating its November 19, 2004, judgment domesticating the original New York judgment on the ground that the original judgment was void for want of jurisdiction, finally disposed of the Alabama case and therefore was appealable. See, e.g., Littlefield v. Cupps, 371 So.2d 51 (Ala.Civ.App.1979). Thus, because an adequate remedy by appeal was available to Trinity Automotive, we deny Trinity Automotive’s petition for a writ of mandamus.

Turning now to Trinity Automotive’s appeal, we first note that “[t]he standard of review on appeal from an order granting relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation.” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 641 (Ala.2003). “If the judgment is valid, it must stand; if it is void, it must be set aside.” Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). Thus, our standard of review is de novo. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003).

“If the court of another state has personal and subject matter jurisdiction over an individual and enters judgment accordingly, that judgment is entitled to full faith and credit in the courts of this state.” Century Int’l Mgmt. v. Gonzalez, 601 So.2d 105, 107 (Ala.Civ.App.1992). The validity of a foreign judgment is determined by reference to the law of the state in which the rendering court sits. Stribling Equip., Inc. v. Crager, 891 So.2d 299, 302 (Ala.2004). “The party challenging the foreign judgment on jurisdictional grounds has the burden to produce evidence to overcome the presumption.” Century Int’l Mgmt., 601 So.2d at 107.

The exercise of personal jurisdiction by a state court over a nonresident defendant must comport with the due-process clause of the Fourteenth Amendment to the United States Constitution. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). “[T]he personal jurisdiction requirement is a waivable right,” however, and there are a “ ‘variety of legal arrangements’ by which a litigant may give ‘express or implied consent to the personal jurisdiction of the court.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). One such legal arrangement is an agreement by both parties to a contract that they will submit to the courts of a particular forum a dispute arising from the contract. See id. “Where such forum-selection provisions have been obtained through ‘freely negotiated’ agreements and are not ‘unreasonable and unjust,’ ... their enforcement does not offend due process.” Id. (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

Likewise, under New York law, a forum-selection clause, like the one contained in the lease agreement in the present case, is sufficient, subject to certain exceptions, to vest New York courts with personal jurisdiction over a nonresident defendant without regard to whether another independent ground for personal jurisdiction exists under the New York long-arm statute (N.Y. C.P.L.R. § 302 (McKinney 2006)). Premium Risk Group, Inc. v. Legion Ins. Co., 294 A.D.2d 345, 345, 741 N.Y.S.2d 563, 564 (2002); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Williams, 223 A.D.2d 395, 396-98, 637 N.Y.S.2d 36, 38-39 (1996); Banco do Commercio e Industria de Sao Paolo S.A. v. Esusa Engenharia e Construcoes S.A., 173 A.D.2d 340, 341, 569 N.Y.S.2d 708, 708 (1991) (“It is well settled that parties to an agreement may consent to submit to the jurisdiction of a court which would otherwise not have personal jurisdiction over them.”). Specifically, New York courts will enforce an otherwise valid forum-selection clause as a basis for personal jurisdiction over a nonresident defendant unless enforcement of the clause would be

“unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.”

Premium Risk Group, Inc., 294 A.D.2d at 346, 741 N.Y.S.2d at 564. Under New York law, a defendant challenging the enforcement of a forum-selection clause bears the burden of proving a basis for nonenforcement of the clause. Id.

In the present case, the trial court based its holding — that the forum-selection clause was ineffective to vest the New York court with personal jurisdiction over Medical Supplies — solely on New York law. Medical Supplies did not argue to the trial court that the federal due-process clause rendered the forum-selection clause ineffective, nor did the trial court make such a finding or reach such a conclusion. Thus, with regard to the forum-selection clause, we consider only the question of whether the clause was enforceable under New York law.

In National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Weir, 131 A.D.2d 380, 517 N.Y.S.2d 141 (1987), a New York appellate court examined whether a trial court had properly denied a nonresident defendant’s motion to dismiss the action against him for lack of personal jurisdiction. Weir, 131 A.D.2d at 380-81, 517 N.Y.S.2d at 141-42. The appellate court noted that the defendant, a Texas resident, had executed an agreement with the plaintiff that contained a forum-selection clause designating New York courts as proper fora for actions or proceedings regarding the agreement. Id. On the basis of the forum-selection clause, the appellate court found that the trial court was vested with personal jurisdiction over the Texas resident, and that the trial court had properly denied the Texas resident’s motion to dismiss. Id.

In Bell Constructors, Inc. v. Evergreen Caissons, Inc., 236 A.D.2d 859, 654 N.Y.S.2d 80 (1997), a New York appellate court reversed the dismissal, on the ground of forum non conveniens, of an action by a New York company against a Colorado company. Bell Constructors, Inc., 236 A.D.2d at 860, 654 N.Y.S.2d at 80-81. In the trial court, the Colorado company had argued that the forum-selection clause that was a part of the parties’ contract, selecting New York courts as the appropriate venue for the enforcement of the contract, was unenforceable because the Colorado company “would suffer considerable economic hardship and loss of business time if compelled to defend the action in New York.” 236 A.D.2d at 860, 654 N.Y.S.2d at 80-81. On appeal, the appellate court held, in spite of the distance between Colorado and New York, that the Colorado company had failed to prove that a trial in New York “would be so gravely difficult and inconvenient that [it] would, for all practical purposes, be deprived of [its] day in court.” 236 A.D.2d at 860, 654 N.Y.S.2d at 81. Thus, the appellate court held that the forum-selection clause was enforceable. Id.

In 3H Enterprises v. Bennett, 276 A.D.2d 965, 715 N.Y.S.2d 90 (2000), a New York appellate court reviewed a trial court’s refusal to enforce a forum-selection clause that chose a particular New York court as the proper forum, against a husband and a wife who resided in Florida. Bennett, 276 A.D.2d at 966-67, 715 N.Y.S.2d at 91-92. The appellate court noted that the controversy giving rise to the lawsuit had “no substantial nexus with New York”, and that all of the parties and witnesses, except the plaintiffs president, resided in Florida. 276 A.D.2d at 966, 715 N.Y.S.2d at 92. It also found significant the fact that “both defendants [were] senior citizens who suffered] from health problems which ma[de] it difficult and inadvisable to travel.” 276 A.D.2d at 967, 715 N.Y.S.2d at 92. On those bases, the appellate court affirmed the trial court’s refusal to enforce the forum-selection clause. Id.

In the present case, the trial court, applying New York law, held that the lease agreement’s forum-selection clause did not vest the New York court with personal jurisdiction over Medical Supplies because the forum-selection clause was “unreasonable and unjust” and because “the distance between the state of New York and Geneva County, Alabama create[d] a gravely difficult circumstance for [Medical Supplies] to travel, participate in and defend [Trinity Automotive]’s complaint.” The trial court based this determination on its finding that (1) Medical Supplies “is a small LLC doing business in rural Geneva County, Alabama”; (2) the authority of Lewis to enter into the lease agreement on behalf of Medical Supplies was “in question”; and (3) Medical Supplies had no contacts with the State of New York beyond the lease agreement and the lease payments that it sent to Trinity Automotive in New York.

We conclude that the trial court erred as a matter of law when it found that the forum-selection clause in the lease agreement did not provide the New York trial court with a basis upon which to exercise personal jurisdiction over Medical Supplies. The fact that New York courts have enforced forum-selection clauses against individuals undercuts any basis upon which to find that Medical Supplies’ size prevents enforcement of a forum-selection clause under New York law, certainly in the absence of any evidence that Medical Supplies’s financial situation was such that it could not defend itself in a New York court. The fact that there may be a question as to whether Lewis had the authority to enter into the lease agreement on Medical Supplies’ behalf is likewise ineffective to render the forum-selection clause unenforceable, in the absence of any resolution of that question. The fact that Medical Supplies did not have contacts with the State of New York outside of the lease agreement and the payments it sent to Trinity Automotive in New York also does not form a basis to refuse enforcement of the forum-selection clause; as previously stated, personal jurisdiction over a nonresident defendant that is founded on a forum-selection clause need not be supported by the defendant’s contacts- with the selected forum. Finally, in light of Weir, supra, wherein the New York court refused to dismiss a case against an individual residing in Texas for lack of personal jurisdiction where jurisdiction was founded on a forum-selection clause, and Bell Constructors, Inc., supra, wherein a New York court upheld a forum-selection clause against a Colorado company, we find that, under New York law, the distance between Alabama and New York is not sufficient to hold that the forum-selection clause in the present case is unenforceable in the absence of any evidence that Medical Supplies was unable to travel to New York for the purpose of defending itself against Trinity Automotive’s claim.

Because the factual findings that the trial court set forth in its judgment do not support its legal conclusion that the lease agreement’s forum-selection clause was unjust and unreasonable and that the clause’s enforcement would have effectively deprived Medical Supplies of its day in court, we conclude that the trial court erred as a matter of law when it set aside its order domesticating the New York judgment. For this reason, .the trial court’s judgment is reversed.

2040984 — PETITION DENIED.

2041020 — REVERSED AND ' REMANDED.

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

      . Robert Lewis was a member of Medical Supplies and appears to have signed the lease agreement on behalf of Medical Supplies. We note that, although Medical Supplies argued to the trial court that Lewis was acting outside of his authority as a member of Medical Supplies when he signed the lease, and although the trial court’s judgment did acknowledge that Lewis’s authority was in question, the trial court expressed no findings of fact with regard to this question.

      . Apparently, as of April 27, 2005, Robert Lewis was no longer a member of Medical Supplies.

      . On this point, New York's law can be contrasted with Florida law, under which a party seeking to enforce a forum-selection clause must prove not only the validity of the clause, but must also demonstrate a separate basis for jurisdiction under the Florida long-arm statute. See Ex parte Kenco Signs & Awning Division, Inc., 732 So.2d 1019, 1024 (Ala.Civ.App.1999) (citing McRae v. J.D./M.D., Inc., 511 So.2d 540 (Fla.1987)).

      . To be sure, Medical Supplies argued to the trial court that the forum-selection clause was insufficient, without more, to vest the New York court with personal jurisdiction. Medical Supplies's argument, however, was limited to its view that, under New York law, Trinity Automotive was obligated to demonstrate an independent basis for personal jurisdiction under New York’s long-arm statute and to demonstrate that Medical Supplies had minimum contacts with the State of New York. Medical Supplies did not argue that application of the forum-selection clause in this case would be "unreasonable and unjust” in violation of the federal due-process clause.
      We also note that Medical Supplies's foregoing arguments, which the trial court did not cite in its judgment, do not provide this court with an alternative basis upon which to sustain the trial court's judgment. As previously noted, a forum-selection clause can be sufficient under federal and New York law, without more, to vest a New York court with jurisdiction over a nonresident defendant, notwithstanding the defendant’s lack of sufficient contacts with the State of New York or an independent jurisdictional basis under the New York long-arm statute. See Burger King Corp., 471 U.S. at 472 n. 14, 105 S.Ct. 2174; note 3, supra, and accompanying text. Medical Supplies's argument to the contrary in the trial court was ill founded.


source: Caselaw Access Project

license: Public Domain

text:
    G. Thomas SURTEES, in his official capacity as commissioner of revenue for the State of Alabama v. CARLTON COVE, INC., and Redstone Military Retirement Residence Association. Fran Hamilton, in her official capacity as tax assessor of Madison County v. Carlton Cove, Inc., and Redstone Military Retirement Residence Association. Fran Hamilton, in her official capacity as tax assessor of Madison County v. Carlton Cove, Inc., and Redstone Military Retirement Residence Association.
    2041091, 2050063, and 2050261.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Certiorari Denied June 15, 2007 Alabama Supreme Court 1060662.

      Henry C. Chappell, chief counsel, Department of Revenue, for appellant G. Thomas Surtees, as commissioner of revenue for the State of Alabama.
    Julian D. Butler and Richard L. Morris of Sirote & Permutt, P.C., Huntsville, for appellant Fran Hamilton, in her official capacity as tax assessor of Madison County-
    Tony G. Miller, Peter S. Fruin, and Hardwick C. Walthall of Maynard Cooper & Gale, P.C., Birmingham, for appellee Carlton Cove, Inc.
    Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery, and Thomas R. Robinson of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee Redstone Military Retirement Residence Association.
   MURDOCK, Judge.

G. Thomas Surtees, in his official capacity as commissioner of revenue for the State of Alabama, and Fran Hamilton, in her official capacity as tax assessor of Madison County (referred to hereinafter collectively as the “taxing authorities”), appeal from a summary judgment entered by the Montgomery Circuit Court in favor of Carlton Cove, Inc. (“Carlton”), and Redstone Military Retirement Residence Association (“Redstone”). Carlton and Redstone are nonprofit charitable organizations exempt from federal income taxation under I.R.C. § 501(c)(3), and each of them owns and operates a residential retirement facility in Madison County serving the elderly. The summary judgment declared that the retirement facilities at issue were exempt from ad valorem taxes pursuant to Ala.Code 1975, § 40-9-1(1), and Amendment No. 373(k) to the Constitution of Alabama of 1901, which is now Article XI, § 217, Official Recompilation of the Constitution of Alabama of 1901, both of which exempt property used exclusively for charitable purposes.

In December 2003, Carlton filed this action seeking a declaration that its real property was exempt from ad valorem taxation because Carlton is a charitable organization exempt from federal income tax under I.R.C. § 501(c)(3) and because its property was used exclusively for charitable purposes. In December 2004, Red-stone filed a motion to intervene in this action, alleging that it too was a tax-exempt charitable organization, that its facility was used exclusively for charitable purposes, and that its claims against the taxing authorities involved questions of law and fact in common with Carlton’s claims. Redstone sought a declaration that its real property was exempt from ad valorem taxation. Redstone’s motion to intervene was granted in March 2005.

In June 2005, Carlton and Redstone filed a joint motion for a summary judgment. After hearing oral argument, the trial court, on July 21, 2005, entered an order granting that joint motion. Hamilton and Surtees appealed.

In November 2005, this court found the trial court’s judgment to be deficient and reinvested the trial court with jurisdiction for a limited time “to render an adjudication of the rights and liabilities of the parties.” In December 2005, the trial court entered an amended summary judgment (1) that declared that the properties at issue are being used “in a charitable manner under Ala.Code § 40-9-1(1) (1975), Ala. Const. Art. IV of 1901, § 91, & Ala. Const. Amend No. 373(k) and such properties are thereby exempt from ad valorem taxation,” and (2) that enjoined the taxing authorities from assessing or collecting ad valorem taxes on the properties at issue. Hamilton filed an amended notice of appeal from the amended summary judgment.

Carlton owns and operates “Carlton Cove,” a gated continuing-care retirement community. Carlton Cove consists of 162 independent-living units and a skilled-nursing facility with 105 beds. Carlton Cove is marketed as an upscale residential community offering its residents “luxurious and spacious apartments, duplexes and manor homes” and numerous amenities and common facilities, including a “gracious main dining room,” casual dining and snack facilities, an arts and crafts studio, a library, a game room, a woodworking shop, a swimming pool, tennis courts, an indoor spa, and walking trails in a 43-acre fenced community. Carlton Cove opened in February 2003, and its development and construction cost in excess of $75 million.

A resident in one of Carlton Cove’s independent-living units must pay an entrance fee ranging from $155,200 to $358,000, depending on the size of the living unit, plus a monthly service fee ranging from $1,731 to $3,362. If a second person (e.g., a spouse) lives in the unit, Carlton charges an additional entrance fee of $36,000 and an additional monthly service fee of $760. The monthly service fee includes 30 meals per month, housekeeping services, utilities, basic cable television service, scheduled local transportation, and limited medical and wellness services. Additional fees are charged for additional meals, unscheduled transportation, home health care, and certain additional services.

Under the most commonly used admission contract at Carlton Cove, the resident is entitled to a return of 90% of the entrance fee, without interest, upon the resident’s termination of residency and Carlton’s receipt of a new entrance fee for the vacated unit.

If a resident of Carlton Cove suffers a serious decline in health, he or she can be transferred to Carlton Cove’s skilled-nursing facility, which is also open to the general public. Residents of Carlton Cove’s independent-living units are charged a fee of $84 per day to stay in Carlton Cove’s skilled-nursing facility, plus fees for ancillary supplies and services. The fee for a person who is not a resident of Carlton Cove is $150 per day for a semi-private room and $170 per day for a private room, plus fees for ancillary supplies and services. Carlton Cove’s skilled-nursing facility does not accept Medicaid patients, for whom it would be able to collect only $130-$140 per day. Residents of Carlton Cove are given priority for admission to the skilled-nursing facility, and it is Carlton’s policy to always keep a few of its nursing-facility beds vacant for use by Carlton Cove residents.

All residents of Carlton Cove must meet Carlton’s financial guidelines, which are designed to ensure that a resident has sufficient income and assets to provide for his or her care for the remainder of his or her life. Carlton recommends that a prospective resident have net assets equal to 150% of the required entrance fee and a monthly income equal to 175% of the monthly service fee. To qualify for the least expensive apartment in Carlton Cove, a prospective single resident is expected to have total net assets (before payment of the entrance fee) of a least $232,800 and a monthly income of at least $3,029 ($36,348 per year). There is evidence in the record indicating that there are only approximately 3,100 households in Carlton’s primary geographic market that meet Carlton’s financial guidelines. The record does not disclose the total number of elderly households in Carlton’s primary geographic market or the percentage of elderly households that meet Carlton’s guidelines.

Carlton’s stated policy is not to evict any resident based solely on inability to pay the monthly service fee. Normally, Carlton will advance funds to pay the necessary fees and charge such advances, together with interest thereon, against the refundable portion of the entrance fee. Carlton also has the right in such a case to move the nonpaying resident to a smaller unit. Because of the high entrance fee and Carlton’s careful financial screening of prospective residents, Carlton incurs only a negligible risk that it will not ultimately collect the entire amount of the resident’s fees.

Carlton’s fee structure more closely resembles long-term-care insurance than it does a charitable gift to the residents. The residents pay a large entrance fee and high monthly fees while they are healthy and living in the independent-living units. In return, Carlton agrees to care for them for life, including the more expensive care rendered in the skilled-nursing facility.

Carlton Cove is in many respects almost indistinguishable from a for-profit retirement community. A driving force behind the creation of Carlton Cove was The Has-kell Companies, a large national real-estate developer and property manager. The Haskell Companies and its affiliates acted as the developer, the general contractor, and the initial property manager of Carlton Cove, and they have received, or will receive, in excess of $8 million as compensation for their services, including deferred fees.

It is significant that the funding for the construction and development of Carlton Cove did not include any grants or charitable contributions. Instead, Carlton Cove was financed through the issuance of tax-exempt bonds that were sold to investors seeking a competitive return on their investment.

Redstone owns and operates Redstone Village in Huntsville, which is an upscale retirement community comparable to Carlton Cove. Redstone Village is located on an 87-acre “scenic mountaintop,” and it consists of independent-living units (apartments and patio homes ranging from 940 sq. ft. to 2,071 sq. ft.), smaller assisted-living apartments, and a skilled-nursing facility, together with luxury amenities and common facilities comparable to those of Carlton Cove.

A resident or couple at Redstone Village must pay an entrance fee ranging from $167,500 to $379,000, plus a monthly service fee ranging from $1,695 to $3,745. For an additional resident sharing a unit, Redstone charges an additional monthly service fee of $750, but it does not increase the amount of the entrance fee. The most commonly used admission contract for Redstone Village provides for a refund of 90% of the entrance fee, without interest, upon the resident’s vacating the unit and Redstone’s receipt of a new entrance fee for that unit.

Redstone recommends that a prospective single resident for its least expensive apartment have assets of at least $209,375 and a monthly income of at least $3,390 ($40,680 per year). As of 2005, 17 prospective residents had made a deposit toward residence at Redstone Village and later “backed out” because of concerns that they could not afford Redstone’s fees.

Redstone’s policy is not to terminate any resident’s contract because of financial difficulties beyond the resident’s control. Normally, Redstone will advance funds to pay necessary fees and charge such advances, plus interest, against the refundable portion of the entrance fee. Redstone has an endowment fund to assist residents in financial need. As of 2005, the endowment fund consisted of $350, a small fraction of one month’s fee for the least expensive unit. Because of the high entrance fees and careful financial screening, it appears that the risk is negligible that any Redstone Village resident will exhaust his or her entrance fee.

Residents of Redstone Village who transition from the independent-living units to the assisted-living units or to the skilled-nursing facility pay a monthly fee of $2,595, plus additional fees if the resident requires a heightened level of care. Red-stone’s assisted-living units are available to the general public, at fees ranging from $2,895 to $3,495 per month, plus additional fees for a heightened level of care. Red-stone Village’s skilled-nursing facility is open to the general public, at a cost of $156 per day for a semi-private room and $177 per day for a private room, plus fees for ancillary supplies and services. Red-stone does not accept Medicaid patients.

The seed money for the development of Redstone Village was provided by The Greystone Development Company, L.L.C., and its affiliates, a for-profit entity that has participated in the development or redevelopment of more than 60 retirement communities nationwide. The permanent financing for the development and construction of Redstone Village was provided by the issuance of more than $55 million in tax-exempt bonds. Greystone received a development fee of approximately $5.6 million, plus incentive payments; this fee includes reimbursement of amounts advanced by Greystone in connection with the development of Redstone Village. Redstone also pays Greystone additional fees under a management agreement.

On appeal, the taxing authorities contend (1) that the trial court erred in concluding that the properties at issue were automatically exempt from ad valorem taxation because Carlton and Redstone were exempt from federal income tax under I.R.C. § 501(c)(3), and (2) that there was at least a genuine issue of material fact as to whether the real properties at issue were exclusively used for purely charitable purposes.

“We review a summary judgment de novo, applying the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.... The court must view the evidence in a light most favorable to the nonmoving party and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Bailey v. R.E. Garrison Trucking Co., 834 So.2d 122, 123 (Ala.Civ.App.2002).

Under Alabama law, all real and personal property is subject to ad valorem taxation unless specifically exempt. Ala. Code 1975, §§ 40-9-1 and 40-ll-l(b)(l) & (16); Ex parte Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 834, 839 (Ala.2003). “Tax exemptions are to be strictly construed against the exemption and in favor of the tax.” Crim v. Phipps, 601 So.2d 474, 476 (Ala.1992). See also Emerald Mountain Expressway Bridge, 856 So.2d at 839.

The exemption at issue here is set forth in Ala.Code 1975, § 40-9-1(1), which provides in part:

“The following property and persons shall be exempt from ad valorem taxation and none other: ... all property, real and personal, used exclusively for religious worship, for schools or for purposes purely charitable; provided, that property, real or personal, owned by any ... charitable institution ... let for rent or hire or for use for business purposes shall not be exempt from taxation, notwithstanding that the income from such property shall be used exclusively for education, religious or charitable purposes.”

(Emphasis added.) The foregoing statute implements two constitutional provisions: Article IV, § 91, which prevents the legislature from taxing property “used exclusively ... for purposes purely charitable,” and Amendment No. 373(k), which exempts from all ad valorem taxation “property devoted exclusively to religious, educational or charitable purposes.”

The first issue presented on appeal is whether the status of Carlton and Red-stone as organizations recognized by the Internal Revenue Service (“I.R.S.”) as being exempt from federal income tax under I.R.C. § 501(c)(3) (“501 (c)(3) status”) is controlling with regard to the exemption of their properties from state or local ad valorem taxation. We begin our analysis with the language of § 40-9-1(1), which exempts property based on its exclusively charitable use, not on the tax-exempt status of the entity owning the property. See Ala. Att’y Gen. Op. No. 2001-191 (May 25, 2001) (Alabama grants an exemption from state income tax to organizations with federal 501(c)(3) status, but there is no analogous exemption from ad valorem taxes; the charitable use of property is a question for the taxing authority to determine). Thus, the text of the statute does not support the theory that 501(c)(3) status is controlling with respect to an exemption from ad valorem taxes. See also State v. Church of the Advent, 208 Ala. 632, 95 So. 3 (1923) (real property owned by a church, but leased for a commercial use, was not exempt from ad valorem taxation because the property was not used for religious purposes).

In Mingledorff v. Vaughan Regional Medical Center, Inc., 682 So.2d 415 (Ala.1996), our Supreme Court implicitly rejected the theory that 501(c)(3) status automatically entitles a taxpayer to exemption from ad valorem taxation. In affirming the ad valorem tax exemption of two charitable hospitals, the Court noted that the hospitals were recognized by the I.R.S. as tax-exempt charitable hospitals, but it did not treat the I.R.S. determination of the hospitals’ charitable status as controlling. Instead, the Court stated:

“The dispositive issue is whether the property sought to be taxed, which is being used exclusively as a hospital, is being used exclusively in charitable pursuits. If it is, then there is no question that [the hospitals] are exempt from ad valorem taxation under the clear wording of Amendment 373(k) and § 40-9-1(1).”

Vaughan Reg’l Med. Ctr., 682 So.2d at 416 (emphasis added).

Our Supreme Court then engaged in a lengthy analysis of whether the hospitals’ activities were properly considered to be “charitable” under both Alabama law and the applicable federal tax regulations. Had the I.R.S.’s determination of the hospitals’ 501(c)(3) status been controlling, the extensive legal analysis would have been unnecessary.

We conclude that the 501(c)(3) status of an entity does not automatically exempt the entity’s property from ad valo-rem taxation. Instead, property is exempt from ad valorem taxation only if it is “used exclusively ... for purposes purely charitable” as defined by Alabama law. Accordingly, the dispositive question before us is whether the facilities at issue are so used.

We note that the operation of an apartment complex for low-income and fixed-income elderly can be a charitable purpose under § 40-9-1(1). Monroe v. Baptist Health Care Found., 772 So.2d 414 (Ala.2000). Monroe is not, however, dis-positive as to this case because (1) it was undisputed that Bell Oaks, the facility at issue in that case, was built for a charitable purpose, (2) $2.8 million of Bell Oaks’s capital debt was repaid by charitable contributions from other Baptist entities, and (3) Bell Oaks served people of low and modest income, a group traditionally considered to be proper objects of charity. Further, the question before the Supreme Court in Monroe was not the general scope of the charitable exemption applicable to housing for the elderly, but the more limited question whether the charitable tax exemption was lost because the apartment facility at issue earned a slight profit over its operating costs or because it did not serve the sick or the indigent.

Because § 40-9-1(1) and Amendment No. 373(k) do not define “charity” or “charitable,” we take note of the definitions set forth in Vaughan Regional Medical Center. In that case, our Supreme Court held that two charitable hospitals did not lose their ad valorem tax exemptions by operating a parking deck, a cafeteria, and a gift shop to generate income and by charging fees to a majority of its patients. The Court noted, however, (1) that it was undisputed that the hospitals at issue were created for charitable purposes, (2) that the hospitals at issue made their services available to a large part of the population, including the poor, and (3) that the hospitals had “an ‘open door’ policy in that they [did] not turn away patients who [were] unable to pay for medical services.” Vaughan Reg’l Med. Ctr., 682 So.2d at 418. Those three factors distinguish the hospitals in that case from the retirement facilities at issue in this case.

In analyzing whether the hospitals at issue in Vaughan Regional Medical Center were engaged in a charitable activity, our Supreme Court considered the definitions of “charitable” and “charity” under Alabama law and the I.R.S. regulations specifically defining the scope of the charitable exemption for hospitals. Our Supreme Court began with the following definitions of charitable uses:

“In order to qualify for the total ad valorem tax exemption provided by Amendment 373(k) and § 40-9-1(1), Vaughan and Baptist [hospitals] must use their property exclusively for charitable purposes or, as this Court stated in [Most Worshipful Grand Lodge of Free & Accepted Masons v. Norred, 603 So.2d 996, 1000 (Ala.1992) ], they must use it ‘solely, only, or wholly for a ... charitable purpose.’ In Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 466, 34 So.2d 835, 841 (1948), this Court, quoting Johnson v. Holifield, 79 Ala. 423, 425 (1885), discussed the nature of a ‘charity’:
“ ‘ “A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature.” ’
“This definition is consistent with the definition of ‘charity’ set out in Black’s Law Dictionary (6th ed.1990):
‘A gift for, or institution engaged in, public benevolent purposes. A gift for benefit of indefinite number of persons under influence of religion or education, relief from disease, assisting people to establish themselves in life, or erecting or maintaining public works.... A “charity,” in the absence of legislative definition, is attempt in good faith, spiritually, physically, intellectually, socially and economically to advance and benefit mankind in general, or those in need of advancement and benefit in particular, without regard to their ability to supply that need from other sources and without hope or expectation, if not with possible abnegation, of gain or profit by donor or by instrumentality of charity.’ ”

Vaughan Reg’l Med. Ctr., 682 So.2d at 418 (emphasis added).

The Court in Vaughan Regional Medical Center also considered I.R.S. regulations and revenue rulings governing the tax exemption for charitable hospitals, which it found to be consistent with Alabama law. 682 So.2d at 421. Our Supreme Court quoted extensively from Revenue Ruling 56-185, 1956-1 C.B. 202, which provides, among other things, (1) that a charitable hospital “ ‘must be operated to the extent of its financial ability for those not able to pay for the services rendered and not exclusively for those who are able and expected to pay,’” and (2) that if a hospital “ ‘operates with the expectation of full payment from all those to whom it renders services, it does not dispense charity merely because some of its patients fail to pay for the services rendered.’ ”

The Court in Vaughan Regional Medical Center held that a charitable hospital does not necessarily lose its charitable exemption by charging commercially reasonable fees to those patients who can afford to pay, as long as it provides health services to the public at large and does not exclude those who cannot pay. Vaughan Reg’l Med. Ctr., 682 So.2d at 421.

Applying the foregoing definitions and principles to the facts of this case, it clearly appears that there is, at a minimum, substantial evidence that Carlton Cove and Redstone Village are not exclusively “charitable” facilities. Those facilities appear to benefit primarily private, rather than public, interests to the extent that they serve only a limited number of elderly persons with significant financial resources. Instead of benefiting the general public, either by offering care to those of limited means or by lessening the burdens of governments, Carlton Cove and Redstone Village provide primarily “self-benevolence” — the creation of benefits for the residents collectively using their own money. The fee structures of Carlton Cove and Redstone Village can be viewed as a form of prepaid long-term-care insurance in which the entrance fee and the monthly service fees during the residents’ early, healthier years generate surpluses to fund the more expensive care required in later years. Further, both facilities admit only residents who can pay the full estimated costs of lifetime care, and neither facility makes any effort to provide services to those who do not satisfy the minimum asset and income requirements. Indeed, both facilities refuse to accept Medicaid patients in their skilled-nursing facilities.

Although a charitable facility, to be considered as such, is not limited in its enterprise to the provision of free or reduced-cost services, there must be an element of gift and of service to the general public. There is at least substantial evidence that this public benefit is not present in the facilities at issue here, given the luxury accommodations, the high fees, and the limited number of elderly persons who meet the facilities’ financial guidelines.

Our conclusion is strengthened by an examination of applicable I.R.S. revenue rulings. Revenue Ruling 79-18, 1979-1 C.B. 194, provides that charitable activities include the provision of housing for the elderly and the relief of distress of the elderly. That revenue ruling provides that an elderly housing facility may charge residents substantial fees (including substantial entrance fees) without losing its charitable character, provided (1) that the cost “is within the financial reach of a significant segment of the community’s elderly persons,” (2) that the housing is operated at the “lowest feasible cost,” and (3) that the organization commits itself to maintaining in residence those tenants who become unable to pay the monthly fees. Rev. Rui. 79-18; see also Rev. Rui. 72-124, 1972-1 C.B. 145. There was substantial evidence in the record that Carlton Cove and Redstone Village would not satisfy these criteria.

Finally, decisions from other states also support our conclusion, indicating that the operation of an upscale retirement community such as those at issue here is not a “charitable” use of the properties at issue. In Western Massachusetts Lifecare Corp. v. Board of Assessors of Springfield, 434 Mass. 96, 747 N.E.2d 97 (2001), for example, the court held that the charitable exemption from ad valorem taxation did not extend to a “luxury residential complex,” 434 Mass. at 98, 747 N.E.2d at 100, that was similar in facilities, concept, and cost to Carlton Cove and Redstone Village. The court noted that a charity need not serve the poor to qualify for the exemption and that a charity may charge reasonable fees without losing its charitable exemption. The court held, however, that to be charitable, an organization must make its services accessible to a sufficiently large and indefinite class and that it may not limit its services to those who are financially well off. Thus, the retirement facility at issue in that case provided a valuable service to those who could afford a luxury residence, but it did not qualify as a charity because its services were not available to a sufficiently large segment of the population. The court held that “[t]his form of addressing the needs of the elderly, however much it may benefit those fortunate enough to qualify for it, is indeed ‘remote’ from our traditional concept of charity.” 434 Mass. at 105, 747 N.E.2d at 105. See also Maplewood Cmty., Inc. v. Craig, 216 W.Va. 273, 285, 607 S.E.2d 379, 391 (2004) (luxury retirement facilities were not purely charitable because their costs were not “ ‘within the financial reach of a significant segment of the community’s elderly persons’ ”); Bethesda Barclay House v. Ciarleglio, 88 S.W.3d 85, 95 (Mo.Ct.App.2002) (a “‘premier retirement facility’ with extravagant and luxurious amenities” did not qualify for a charitable exemption because its services were denied to a large percentage of the elderly population; to be charitable, a home for the elderly must be available to both rich and poor). Compare Southminster, Inc. v. Justus, 119 N.C.App. 669, 459 S.E.2d 793 (1995) (holding that two nonprofit retirement communities qualified for a charitable exemption even though they charged substantial entrance fees and monthly fees; housing for the elderly was held to be a charitable purpose, but the court did not address whether the services at issue were made available to a substantial part of the elderly population); Board of Tax Assessors of Ware County v. Baptist Village, Inc., 269 Ga.App. 848, 605 S.E.2d 436 (2004) (nonprofit retirement facility was exempt from ad valorem taxation under a statute that exempted homes for the aged operated by an entity with 501(c)(3) status); and Presbyterian Manors, Inc. v. Douglas County, 268 Kan. 488, 998 P.2d 88 (2000) (a nonprofit retirement home was entitled to a charitable exemption under a state statute that expressly referenced I.R.S. Revenue Ruling 72-124 as controlling; the opinion did not disclose the entrance fees or monthly fees charged, nor did it discuss the extent to which the facility was within the financial means of a significant portion of the elderly population).

Carlton Cove and Redstone Village certainly appear to be reputable enterprises that serve well those who can afford the cost of the facilities and services offered. On the record presented, however, it clearly appears that there is at least substantial evidence that the facilities at issue are not used for exclusively charitable purposes under § 40-9-1(1). Thus, it cannot be said that Carlton Cove and Redstone Village met their burden of establishing that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law.

Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs in the result, without writing.

      . Surtees’s appeal, no. 2041091, and Hamilton's appeal, no. 2050063, were initially filed with our Supreme Court and were transferred to this court, pursuant to Ala.Code 1975, § 12-2-7. Those appeals were consolidated by this court.

      . The amended appeal, no. 2050261, was consolidated with appeal nos. 2041091 and 2050063.

      . A continuing-care retirement facility offers the elderly a range of living arrangements and levels of care within the same facility. A continuing-care retirement community typically offers independent-living apartments or cottage-style homes for those who are self-sufficient, assisted-care units for those who need some assistance with nonmedical activities of daily living (dressing, bathing, walking, etc.), and skilled-nursing care for those whose health is deteriorating. A major advantage of a continuing-care retirement facility is that the resident can obtain various levels of care within the same community, thus maintaining a consistent environment and continuity of care when the resident’s needs change. See Elizabeth C. Kastenberg and Joseph Chasin, Exempt Organizations Continuing Professional Education (CPE) Technical Instruction Program FY 2004 (Internal Revenue Service).

      .Residents in independent-living units are self-sufficient and have freedom to drive automobiles, travel, and come and go as they please. Carlton Cove’s independent-living units consist of 113 apartments ranging in size from 779 square feet to approximately 1,600 square feet, 48 duplexes of approximately 1,500 square feet, and a manor house of approximately 2,000 square feet.

      . All of the fees and financial guidelines discussed in this opinion were current as of early 2005.

      . The minimum net asset level includes the value of the prospective resident’s current residence. The recommended mínimums for a couple desiring to live in the two-bedroom manor house are net assets of $591,000 and a monthly income of $7,213.

      . As part of the admission process, Carlton uses financial screening software to determine the actuarial risk that the prospective resident will become unable to pay his or her monthly service fees and will exhaust the refundable portion of his or her entrance fee. Carlton’s executive director testified that she was not aware of any current resident of Carlton Cove who had an actuarial risk of nonpayment greater than 0%.

      . The bondholders have been active in the management of Carlton Cove and have exercised their contractual right to require Carlton to hire a management consultant selected by the bondholders. There is evidence in the record indicating that the bondholders’ consultant has caused changes to be made in the operation of Carlton Cove.

      .Redstone Village was initially planned as a facility limited to retired military personnel and their spouses. Before it opened, it was also made available to the general public.

      . The monthly service fee at Redstone Village covers 20 or 30 meals per month, utilities, housekeeping, scheduled local transportation, and similar services.

      . In comparison, the legislature has seen fit to create other tax exemptions based expressly on the federal tax-exempt status of the entity. See, e.g., Ala.Code 1975, § 40-23-5 (any rescue service granted 501(c)(3) status is exempt from sales tax), and Ala.Code 1975, § 40-18-32 (any entity exempt from federal income tax is also exempt from state income tax).
      We also note that §§ 40-9-12 and -13, Ala. Code 1975, exempt from taxation a number of specifically named nonprofit organizations, including the Presbyterian Apartments, Incorporated, which owns and operates an apartment facility in Huntsville to serve the elderly.

      . We note that the record does not reveal what information was before the I.R.S. when it issued the determination letters recognizing the 501(c)(3) status of Carlton and Redstone. It is clear, however, that the I.R.S. decisions on both entities were based on projected and anticipated activities because the determination letters were issued before construction of the respective facilities began. We also note that the granting of 501(c)(3) status to Carlton and Redstone was a non-adversarial administrative decision of a federal agency made without notice to or participation of the taxing authorities and that the record does not reflect what scrutiny, if any, was given to the documents submitted to the I.R.S. by Carlton and Redstone.

      . We note that the facilities, amenities, and rates at issue here are comparable to those of at least one for-profit retirement community in Huntsville, namely Somerby at Jones Farm, a competing upscale retirement community that pays ad valorem taxes. In contrast, the Presbyterian Apartments, a tax-exempt independent-living apartment facility serving the low-income elderly, charges less than $500 per month for its most expensive apartments. See note 11, supra, regarding the legislative prescription of the Presbyterian Apartments' tax-exempt status.


author: PITTMAN, Judge.

text:
    STATE DEPARTMENT OF REVENUE v. UNION TANK CAR COMPANY.
    2050652.
    Court of Civil Appeals of Alabama.
    April 13, 2007.
    Certiorari Denied June 15, 2007 Alabama Supreme Court 1061070.
    Troy King, atty. gen., and Mark Griffin, asst. atty. gen., and asst. gen. counsel, Department of Revenue.

      William B. Sellers and JoClaudia Moore of Balch & Bingham, LLP, Montgomery, for appellee.
   PITTMAN, Judge.

The State Department of Revenue (“the Department”) appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Union Tank Car Company (“UTCC”) in judicial-review proceedings concerning the correctness of an administrative determination that UTCC was not subject to Alabama income tax for the tax years 1994-1998.

The facts of this case are virtually undisputed. UTCC, a Delaware corporation with its corporate headquarters located in Illinois, is in the business of manufacturing and leasing specialty railcars to customers throughout the United States. UTCC had one Alabama-based lessee, Vulcan Materials Company (“Vulcan”), during the pertinent tax years. UTCC maintains regional sales offices and repair and service centers throughout the country, although none are located in Alabama. UTCC manufactures its railcars in Illinois and Texas, and its leasing agreements are all executed in Illinois.

The terms of UTCC’s standard lease require that UTCC’s lessees remit payment of a fixed monthly amount to UTCC in Illinois and arrange for a railroad carrier to pick up the leased railcars from UTCC’s manufacturing facility and haul them to a location designated by the lessee. The lessee is also responsible for returning the railcars to UTCC after the lease term expires. UTCC has no control over where the leased railcars are used and does not track where the railcars travel throughout the United States; however, UTCC is responsible for maintaining and repairing the railcars. The repair and maintenance of its railcars would be performed at one of UTCC’s repair facilities located at sites outside Alabama.

UTCC conducted no business, had no employees, and owned no property in Alabama during the 1994-1998 tax years. Some of UTCC’s leased railcars were used to transport materials through Alabama and to destinations within Alabama. None of the railcars were used strictly intrastate. For the pertinent tax years, UTCC paid the Department an Alabama license tax pursuant to §§ 40-21-52 and 40-8-1(b)(5), Ala.Code 1975, in lieu of paying a property tax on the railcars that traveled in Alabama. The license tax remitted by UTCC was based on the market value of the railcars and the number of miles that the railcars traveled in Alabama.

The Department had previously assessed UTCC for the Alabama franchise tax for the tax years 1983-1986. UTCC had operated in substantially the same manner during those years as it had during the tax years 1994-1998. UTCC had appealed the franchise-tax assessment to the Department’s Administrative Law Division, which held that UTCC was not doing business in Alabama and thus was not subject to the Alabama franchise tax. The Department did not seek judicial review of that order.

UTCC stopped filing Alabama corporate income tax returns after 1993, and, thus, it did not report any of its income to Alabama for the tax years 1994-1998. Following an audit, the Department determined that UTCC’s leased railcars had been used by lessees to haul materials within and outside Alabama during the tax years 1994-1998; thus, according to the Department’s auditors, UTCC’s lease income was subject to Alabama income tax pursuant to the application of § 40-18-2(a)(2) and (a)(3), Ala.Code 1975. The Department apportioned UTCC’s lease income to Alabama based on the proportion of the miles that all of UTCC’s leased railcars traveled in Alabama compared to the total miles the railcars traveled throughout the United States; based on that determination, the Department assessed UTCC taxes, interest, and penalties in the amount of $442,782.00.

UTCC appealed from that assessment to the Department’s Administrative Law Division. The Department’s administrative law judge (“ALJ”) conducted a de novo hearing, and after considering the evidence, the ALJ entered a judgment declaring void the assessment against UTCC. The Department sought judicial review of the ALJ’s decision in the Montgomery Circuit Court. UTCC filed a motion for a summary judgment, which was opposed by the Department; both parties filed eviden-tiary documents and briefs in connection with the summary-judgment motion. After a hearing, the circuit court adopted the ALJ’s findings of fact and legal analysis and entered a summary judgment in favor of UTCC.

The ALJ (and, thereby, the circuit court) concluded that UTCC was not subject to income tax during the tax years 1994-1998 because (1) those cases decided by courts in other states deemed by the ALJ to be better reasoned indicated that UTCC was not subject to an income tax pursuant to § 40-18-2(a)(3), Ala.Code 1975, for the tax years 1994-1998; and (2) the Department had failed to present any evidence indicating that UTCC was qualified to do business in Alabama or was otherwise licensed to do business in Alabama during the tax years 1994-1998 such that UTCC could be said to be subject to income tax pursuant to § 40-18-2(a)(2), Ala.Code 1975. The Department timely appealed from the circuit court’s judgment to this court.

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

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

Carlisle v. Golden Rod Feed Mill, 883 So.2d 710, 711-12 (Ala.Civ.App.2003).

The Department first contends that UTCC was liable for income tax pursuant to § 40-18-2(a)(2), Ala.Code 1975, on the income UTCC derived from the lease of its railcars that traveled within and outside Alabama because, the Department argues, UTCC’s payment of a license tax in accordance with § 40-21-52, Ala.Code 1975, licensed UTCC to transact business in Alabama.

“It is [an appellate court’s] responsibility to give effect to the legislative intent whenever that intent is manifested.” Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003); see also State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). The commonly accepted definition of a term in a statute should be applied when a term is not defined in the statute. Bean Dredging, L.L.C., 855 So.2d at 517. “If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992).

Section 40-18-2, Ala.Code 1975, provides:

“(a) In addition to all other taxes now imposed by law, there is hereby levied and imposed a tax on the taxable income, as defined in this chapter, which tax shall be assessed, collected, and paid annually at the rate specified herein and for each taxable year as hereinafter provided. Persons and subjects taxable under this chapter are:
“(2) Every corporation ... licensed or qualified to transact business in Alabama.”

Section 40-21-52, Ala.Code 1975, provides, in pertinent part:

“Each freight line or equipment company doing business, owning, operating, renting, leasing, or furnishing cars which are operated in this state shall, on or before March 1 each year, make and file with the Department of Revenue on a form or forms prescribed by the Department of Revenue a statement ... showing the number of miles run by all its cars over the line or lines of each separate railroad or railway in this state.... It shall be the duty of the Department of Revenue to examine the statement of each freight line or equipment company, and the reports of each railroad or railway company over whose lines such freight line or equipment moved, and from such statements and reports to compute the average number of cars within the state of each freight line or equipment company for the 12 months preceding October 1 of each year; for the average number of cars found to be in the state for such 12-month period, the reasonable value of such cars shall be computed, and the sum total value of the average number of cars shall be reduced to 30 percent thereof. There is hereby levied and it shall be the duty of the Department of Revenue to assess a license tax of three and one-half percent of the SO percent value of the average number of cars within the state for the period of 12 months preceding October 1 of each year. ...”

(Emphasis added.)

Section 40 — 8—1 (b)(5), Ala.Code 1975, provides in pertinent part:

“(b) As used herein, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise:
“(5) Property of Utilities. All property assessed for taxation by the Department of Revenue pursuant to the provisions of Chapter 21 of this title; provided, that after September 30, 1979, and only to the extent required by Title III, § 306 of Pub.L. 94-210 (the Railroad Revitalization and Regulatory Reform Act of 1976, codified as 49 U.S.C. § 26c), ‘transportation property,’ as that term is defined in the aforesaid statute, as heretofore or hereafter amended, or in any subsequent statute of similar import, shall not be assessed as Class I property and customer-owned coin-operated telephone companies shall not be assessed as Class I property.”

The Department asserted in the circuit court that UTCC had paid license taxes imposed under §§ 40-21-52 and 40-8 — 1(b)(5), Ala.Code 1975, in lieu of property taxes. The license tax paid by UTCC was based on the percentage of time that UTCC’s leased railcars had traveled in Alabama as applied to the market value of those cars. Those Code sections impose a tax upon property that would not otherwise be subject to an Alabama tax.

The taxes levied pursuant to §§ 40-21-52 and 40-8-l(b)(5), Ala.Code 1975, seek to tax corporations that own railcars that have already traveled through Alabama and to impose a tax that is precisely in the nature of how the Department represented it to be: a tax imposed in lieu of a property tax. Payment of this tax does not itself license a corporation to transact business in Alabama, however. Furthermore, as stated above, UTCC withdrew its qualification to do business from the Secretary of State’s office on December 30, 1993, and did not register with the Secretary of State to do business during the tax years 1994-1998. Therefore, UTCC was neither qualified to transact nor licensed to transact business in Alabama during the tax years 1994-1998 so as to fall within § 40-18 — 2(a)(2), Ala.Code 1975.

Next, the Department contends that UTCC is subject to income taxation pursuant to § 40-18-2(a)(3), Ala.Code 1975, on the income UTCC derived from the lease of its railcars that traveled within and without Alabama. That subsection imposes an income tax on “[ejvery corporation doing business in Alabama or deriving income from sources within Alabama, including income from property located in Alabama ” (emphasis added).

To support its contention that UTCC derived income from sources within Alabama, the Department relies on Boswell v. Paramount Television Sales, Inc., 291 Ala. 490, 493-94, 282 So.2d 892, 894 (1973); however, that case is distinguishable from the case at hand. In that case, the Department levied a license/privilege tax against Paramount Television Sales, Inc. (“Paramount”), based upon its rental or leasing of tangible property, i.e., films and videotapes, in Alabama; Paramount shipped the tapes or films to the local stations in Alabama, and the stations returned the tapes or films to Paramount within 48 hours after the scheduled broadcast date. The property was utilized strictly within Alabama and then shipped back to Paramount. Paramount had no office, place of business, or regular representative living in Alabama; had not qualified with the Secretary of State to do business in Alabama; and had negotiated with Alabama television stations by mail or wire outside Alabama. The Alabama Supreme Court recognized that a state could not tax the privilege of carrying on an interstate business, but it stated that a state had the power to place a levy on an activity that occurred in the state either before or after the movement of property in interstate commerce. The Alabama Supreme Court determined that transferring possession of the films to the local stations and renting them for use by the stations constituted a local act that amounted to a taxable event occurring wholly in Alabama after the films had completed their interstate journey into Alabama but before the return of the property to interstate commerce.

In this case, although some of UTCC’s leased railcars were stored in Alabama, the railcars were used to transport material within and outside Alabama and did not remain solely intrastate during their use (as the films or tapes in Boswell did). Furthermore, in Boswell, the tax at issue was a license/privilege tax, not an income tax. Thus, Boswell does not compel reversal.

As the ALJ noted in his order, other jurisdictions offer guidance in addressing whether a corporation such as UTCC is subject to state income taxation. In Kentucky Tax Commission v. American Refrigerator Transit Co., 294 S.W.2d 554 (Ky.1956), the Kentucky Tax Commission sought to impose a state income tax on rental income that a company had earned from the lease of its railcars that traveled through Kentucky. The company, which was incorporated in New Jersey and had its principal place of business in Missouri, leased its railcars to various railroads for use by those companies in their businesses. Those lease agreements were negotiated and executed in Missouri, and the lease payments were sent by the company’s customers to a destination outside Kentucky. The lease payments were based upon a fixed mileage rate, and the company exercised no control over the routing of the railcars or the presence of the railcars in Kentucky.

The Kentucky statute at issue in Kentucky Tax Commission imposed a tax on the income of non-Kentucky corporations that was “ ‘derived from business done, property located, activities or sources in this state.’ ” 294 S.W.2d at 554. The taxing authority asserted that the company had derived income from the mileage its railcars had traveled in Kentucky; thus, the taxing authority argued that part of the company’s income was derived from “ ‘activities or sources’ ” in Kentucky within the meaning of the statute at issue. Id. at 555. The Kentucky Court of Appeals disagreed and concluded that the company’s source of income was the leases executed in Missouri and not the railcars. That court determined that if the company had been forced to sue a lessee to recover rent for the use of railcars, the action would be based on the leasing contract and that “neither that instrument nor its owner [was] located in [Kentucky].” Id. Therefore, the court held, the company did not derive income from sources in Kentucky as required by the taxing statute. See also T.V. Williams v. American Refrigerator Transit Co., 91 Ga.App. 522, 527, 86 S.E.2d 336, 337-38 (1955) (affirming decision of Georgia tax court that company conducting similar operations in Georgia derived no “business income” in Georgia).

Furthermore, in First National Leasing & Financial Corp. v. Indiana Department of State Revenue, 598 N.E.2d 640, 641 (Ind. Tax Ct.1992), a non-Indiana corporation appealed from Indiana’s assessment of an income tax on rent that the corporation had received from leasing railroad equipment. In that case, the corporation executed a lease agreement outside Indiana with its wholly owned subsidiary that was also a non-Indiana corporation. The subsidiary leased the railroad equipment from the corporation and operated some of the equipment in Indiana; the subsidiary also employed eight people in Indiana. The rental payments to the corporation were independent of the amount of revenue generated by the subsidiary’s use of the equipment, and the subsidiary maintained control of the leased equipment at all times. In determining that the corporation’s income was not derived from sources within Indiana, the Indiana Tax Court concluded that the corporation’s ownership of the property located in Indiana was “remote and incidental” to the lease transaction from which its income had been derived. Id. at 645.

Following First National Leasing, the Indiana Tax Court again addressed the issue whether an out-of-state lessor was subject to income tax. In Enterprise Leasing Co. of Chicago v. Indiana Department of State Revenue, 779 N.E.2d 1284 (Ind. Tax Ct.2002), Indiana assessed an income tax against various out-of-state corporations that had leased motor vehicles to persons or entities in Indiana. The leases were negotiated and executed outside Indiana, and the lease payments were also received outside Indiana. The lease payments were fixed and not contingent upon the use or location of the vehicles. Based upon those facts, the Indiana Tax Court held that the corporation’s income was not “derived from sources within Indiana” and, thus, was not subject to Indiana’s income tax. Id. at 1292.

The Kentucky and Indiana cases we have cited lead us to agree with the conclusions of the ALJ and the circuit court that UTCC did not derive income from sources within Alabama. UTCC executed its lease contracts in Illinois, the railcars were picked up in Illinois or Texas, and the lessees made lease payments to UTCC in Illinois. The amount of the lease payments were fixed, and UTCC had had no control over where the railcars were used after they had been leased from UTCC. Thus, UTCC derived income from the lease transactions in Illinois, not from sources in Alabama.

The ALJ’s order correctly notes that there is a split in authority regarding whether a state may lawfully tax rental income derived from leased property that enters its borders. We agree with the AJLJ’s analysis regarding this issue:

“I recognize, as did the Indiana Tax Court in [First National Leasing and Financial Corp. v. Indiana Department of State Revenue,] 598 N.E.2d [640, 646 (Ind. Tax Ct.1992) ], that there is a split of authority on the issue. In support of its position, the Department cites Truck [Renting] and Leasing Ass’n., Inc. v. [Comm’r] of Revenue, [433 Mass. 733,] 746 N.E.2d 143 (2001); [Pennsylvania] v. Universal Carloading [& Distributing] Co., Inc., [29 Pa.Cmwlth. 553,] 372 A.2d 41 (1977); American Refrigerator Transit Co. v. State Tax [Commission], 238 Or. 340, 395 P.2d 127 (1964); Oklahoma Tax [Commission] v. American Refrigerator Transit Co., 349 P.2d 746 (1959); and [Commissioner] of Revenues v. Pacific Fruit Express Co., [227 Ark. 8,] 296 S.W.2d 676 (1956). However, as noted by the Indiana Tax Court in First National Leasing, the two American Refrigerator Transit cases and the Pacific Fruit Express case were decided largely on constitutional grounds, not whether the taxpayers were statutorily subject to taxation in the state. The 1977 Pennsylvania case and the 2001 Massachusetts case cited above were also decided primarily on constitutional grounds.”

In this case, the Department relies on statutory construction in arguing that UTCC was deriving income from sources in Alabama; in contrast, the constitutional power to impose such a tax is not at issue. Because the Department’s power to tax UTCC’s income must be based upon appropriate statutory authority, we agree with the ALJ’s view that cases addressing the constitutional power of a state to enact such a tax do not warrant a judgment in the Department’s favor here.

The Department also argues that UTCC is subject to Alabama income tax based upon language contained in the Mul-tistate Tax Compact, Ala.Code 1975, § 40-27-1 et seq., and in § 40-18-22, Ala.Code 1975.

Section 40-18-22, Ala.Code 1975, states:

“Taxpayers, including corporations, as well as subchapter K entities and Alabama S corporations, engaged in multi-state business in such a manner as to subject their income to allocation and apportionment provided by the Multi-state Tax Compact shall allocate and apportion their income, gains, losses, deductions, credits, and exemptions in the manner provided by Chapter 27. This section shall not apply to individuals.”

Article I of the Multistate Tax Compact provides, in pertinent part:

“The purposes of this compact are to:
“1. Facilitate proper determination of state and local tax liability of multi-state taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes.
“2. Promote uniformity or compatibility in significant components of tax systems.
“3. Facilitate taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration.
“4. Avoid duplicative taxation.”

§ 40-27-1 (emphasis added).

Article III of the Compact provides, in pertinent part:

“Taxpayer Option, State and Local Taxes.
“1. Any taxpayer subject to an income tax whose income is subject to apportionment and allocation for tax purposes pursuant to the laws of a party state or pursuant to the laws of subdivisions in two or more party states may elect to apportion and allocate his or her income in the manner provided by the laws of such state or by the laws of such states and subdivisions without reference to this compact, or may elect to apportion and allocate in accordance with article IV....”

§ 40-27-1 (emphasis added).

A review of the Multistate Tax Compact reveals that the Compact does not itself impose a separate and distinct tax upon persons but instead governs the apportionment and allocation of taxes paid by persons that are already subject to income tax under other Alabama tax laws. Since UTCC was not subject to Alabama income tax pursuant to § 40-18-2(a)(2) and (a)(3), Ala.Code 1975, the Multistate Tax Compact cannot itself be construed to impose an income tax on UTCC.

Finally, the Department contends that UTCC is subject to Alabama income tax pursuant to §§ 40-18-31 and 40-18-33, Ala.Code 1975. Section 40-18-31, Ala. Code 1975, provides:

“(a) A corporation subject to the tax imposed by Section j.0-18-2 shall pay a tax equal to six and one-half percent of the taxable income of the corporation, as defined in this chapter.”

(Emphasis added.)

Section 40-18-33, Ala.Code 1975, provides, in pertinent part:

“In the case of a corporation subject to the tax imposed by Section 40-18-31, the term ‘taxable income' means federal taxable income without the benefit of federal net operating losses plus the additions prescribed and less the deductions and adjustments allowed by this chapter and as allocated and apportioned to Alabama.”

The provisions in the above statutes have no field of operation unless a corporation is subject to taxation pursuant to § 40-18-2, Ala.Code 1975, as the emphasized language in § 40-18-31, Ala.Code 1975, makes clear. Stated another way, §§ 40-18-31 and 40-18-33, Ala.Code 1975, do not impose a tax above and beyond that imposed in § 40-18-2, Ala.Code 1975. Because we have concluded that UTCC was not subject to taxation under § 40-18-2, Ala.Code 1975, UTCC is not liable to pay income tax under §§ 40-18-31 and 40-18-33, Ala.Code 1975.

Based on the foregoing, we affirm the circuit court’s summary judgment upholding the ALJ’s administrative order nullifying the Department’s assessment against UTCC. Having resolved the central issue of taxation in this manner, we need not address the various constitutional questions raised by the parties hereto. UTCC’s motion to strike certain exhibits attached to the brief submitted by the Department is denied. Wilson v. Crosby Lumber Co., 386 So.2d 1173, 1174-75 (Ala.Civ.App.1980).

AFFIRMED.

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

      . Vulcan, an Alabama-based corporation, used UTCC’s railcars to transport materials from Alabama to destinations in numerous other states. However, the Department sought to tax all of UTCC's leased railcars that traveled in Alabama during the pertinent tax years.

      . The circuit court also opined that the Department's contention that UTCC was subject to income tax pursuant to § 40-18-2(a)(2), Ala.Code 1975, had been raised for the first time on appeal; however, it appears that the Department had asserted that issue in a pretrial brief filed at the administrative level.


author: BASCHAB, Judge.

text:
    Michael Durand BUSBY v. STATE of Alabama.
    CR-04-2306.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.

      Aimee C. Smith, Montgomery, for appellant.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Michael Durand Busby, pled guilty to manslaughter, a violation of § 13A-6-3(a)(l), Ala.Code 1975. The trial court sentenced him to serve a term of twenty years in prison. The appellant filed a motion to withdraw his guilty plea, which the trial court summarily denied. This appeal followed.

The appellant argues that the trial court erroneously denied his motion to withdraw his guilty plea. In his motion, he raised several potentially meritorious claims in which he contended that his trial counsel rendered ineffective assistance and that he did not knowingly, voluntarily, and intelligently enter his guilty plea. He also attached several affidavits in support of his motion. Although the State filed a response to the appellant’s motion to withdraw his guilty plea, it did not refute the appellant’s specific claims. Furthermore, on the same day the State filed its response, the trial court signed an order summarily denying the motion without making any findings of fact regarding the appellant’s claims.

Because the trial court is in the best position to make findings of fact regarding the appellant’s claims, we remand this case to that court with instructions that it make specific, written findings of fact as to each claim the appellant raised in his motion to withdraw his guilty plea. See Vinnie v. State, 866 So.2d 1175 (Ala.Crim.App.2002) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial); Stallings v. State, 793 So.2d 867 (Ala.Crim.App.2000) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial); Tubbs v. State, 753 So.2d 1209 (Ala.Crim.App.1999) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial). On remand, the trial court may order the State to respond to the appellant’s specific allegations and/or may conduct an eviden-tiary hearing on those claims. If the trial court determines that the appellant is entitled to relief, it may order such relief. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the trial court’s specific, written findings of fact; a copy of the State’s response, if any; and a transcript of the remand proceedings, if any, conducted by the trial court.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On February 23, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 16, 2007, that court denied rehearing, without opinion. On June 15, 2007, the Supreme Court denied certiorari review, without opinion (1060944).