author:
PER CURIAM.
      MOORE, Judge,

text:
    Johnnie HILDRETH v. STATE of Alabama.
    2081079.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Johnnie Hildreth, pro se.
    Troy King, atty. gen., and J. Matt Bled-soe and Elizabeth E. Utley, asst, attys. gen., for appellee.

      . We note that Hildreth’s arguments pertaining to the search of the vehicle and the alleged excessiveness of the fine were not presented to the trial court, and, therefore, those issues were not preserved for appellate review. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

   PER CURIAM.

The State of Alabama (“the State”) filed a complaint seeking the forfeiture of a 2000 BMW automobile (hereinafter “the vehicle”) allegedly owned by Johnnie Hil-dreth. In its complaint, the State alleged that Latorey Ivory had used the vehicle to traffic cocaine, and, therefore, the State alleged that the vehicle was subject to forfeiture pursuant to § 20-2-93, Ala.Code 1975. Hildreth answered and denied knowledge of any criminal activity in connection with the vehicle.

The State moved for a default judgment alleging that the “defendant” Ivory had failed to answer its complaint. On October 20, 2008, the trial court ordered the forfeiture of the vehicle based on its finding that Ivory had failed to answer or appear at a scheduled hearing. That order failed to mention Hildreth as a defendant to the State’s forfeiture complaint.

On March 28, 2009, Hildreth filed in the trial court a second answer in which she specifically asserted her ownership of the vehicle and sought the return of the vehicle. The trial court entered an order on May 4, 2009, scheduling the matter for a final hearing. In its May 4, 2009, order, the trial court stated that it had set aside “[a]ll orders of default.” The trial court also later entered orders allowing the parties to take the depositions of certain witnesses who could not be available on the scheduled hearing date.

The trial court conducted the scheduled hearing, at which it received documentary and ore tenus evidence. On July 14, 2009, the trial court entered a judgment in which it made a number of factual findings and ordered that the vehicle be forfeited. Hil-dreth timely appealed; she appears before this court pro se.

As an initial matter, we note that Hil-dreth’s brief on appeal refers to “the appellants” and that Ivory also signed the brief submitted by Hildreth. However, although Ivory was named as a defendant in the State’s forfeiture complaint, in its judgment, the trial court noted that it had earlier entered a default judgment against Ivory and that she had not disputed the correctness of that judgment. At the final hearing, Ivory testified before the trial court that she had no interest in the vehicle, and Ivory did not file a notice of appeal from the trial court’s July 14, 2009, judgment. Ivory has not asserted in the brief submitted to this court that she has any interest in the vehicle; in fact, in their reply brief, Hildreth and Ivory contend that Ivory has no interest in the vehicle. Only Hildreth appealed the trial court’s July 14, 2009, judgment, and, therefore, Hildreth is the only appellant before this court.

At the ore tenus hearing, the State began its case by establishing that Hildreth is the mother of Bobby Bruce. Lieutenant Steven Hanners of the Eufaula Police Department testified that Bruce was a known drug dealer and that Bruce had three prior drug-related felony convictions; Lt. Hanners stated that he believed he was the case agent on two of the arrests that resulted in those convictions. Lt. Hanners testified that, to his knowledge, Bruce and Ivory had been “boyfriend and girlfriend for quite some time” before the incident that led to the forfeiture of the vehicle at issue in this matter.

According to Lt. Hanners, on February 18, 2008, a “reliable informant” informed him that Bruce and Bruce’s girlfriend would be purchasing cocaine in Georgia and transporting it to Alabama in a BMW automobile with certain characteristics. Lt. Hanners’s testimony indicated that the informant later called Lt. Hanners, who was watching for the BMW with a partner, to notify Lt. Hanners that the BMW was traveling to his vicinity and that a woman was driving the vehicle. According to Lt. Hanners, shortly after that call from the confidential informant, Lt. Hanners observed a BMW automobile with the characteristics described by the informant; the vehicle was being driven by a woman. Lt. Hanners testified that he attempted to initiate a traffic stop of the vehicle. Lt. Hanners stated, however, that the driver of the vehicle immediately turned the vehicle around and attempted to elude the officers. It is undisputed that Ivory was the driver and sole occupant of the vehicle during that incident. Lt. Hanners testified that he pursued Ivory as she drove the vehicle in excess of 100 miles per hour and that the vehicle ultimately ran off the road and into a yard. Ivory exited the vehicle and ran, carrying her purse, but she was quickly apprehended and arrested.

Lt. Hanners testified that a search of Ivory’s purse revealed a gallon-sized plastic bag that contained what was ultimately determined to be eight ounces of cocaine. Lt. Hanners also stated that another gallon-sized bag containing eight ounces of cocaine was found in the vehicle. In addition, Lt. Hanners testified that approximately one month after Ivory’s February 18, 2008, arrest, a confidential informant purchased illegal drugs from Bruce while Ivory was a passenger in a vehicle Bruce was driving but which is also titled in Hildreth’s name.

Ivory admitted that as a result of her arrest on February 18, 2008, she pleaded guilty to a charge of trafficking in cocaine. The record on appeal indicates that Ivory was sentenced to 20 years’ incarceration, split to serve 5 years; she was also ordered to pay, among other things, a $50,000 fine.

Hildreth testified that the vehicle at issue in this appeal belonged to her. According to Hildreth, on February 15, 2008, she saw the vehicle while it was being serviced at “A-l Lube,” and she decided she wanted to purchase it. Hildreth testified that she called Bruce to look at the vehicle for her and that he approved her purchase of the vehicle.

Hildreth stated that shortly before February 15, 2008, she received an income-tax refund and that she used that money to purchase the vehicle. According to Hil-dreth, she gave her daughter $6,500 in cash and the daughter took the money to A-l Lube to purchase the vehicle. Hil-dreth stated that when she returned home from helping a relative who had been hospitalized, the vehicle was in her driveway. At the hearing in this matter, Hildreth stated that although the documents pertaining to the sales transactions contained what purported to be her signature, the documents were actually signed by her daughter.

Hildreth submitted into evidence copies of her paycheck stubs indicating her level of income. However, those paycheck stubs were dated around the time of the hearing and did not pertain to the amount of income Hildreth had at the time she allegedly purchased the vehicle. Hildreth also submitted into evidence a 2007 federal income-tax return that showed that Hil-dreth had approximately $18,000 in income for 2007 and that she claimed two dependents at that time. In that 2007 federal income-tax return, which was dated January 24, 2008, Hildreth sought an income-tax refund of $5,824. Hildreth’s testimony indicates that she received a check from the company that completed her income-tax return. However, Hildreth admitted that she did not have any proof regarding the amount she had actually received as a tax refund.

The State presented evidence disputing Hildreth’s account of how the vehicle was purchased. Lt. Hanners testified that drug dealers had realized that the State, pursuant to § 20-2-93, Ala.Code 1975, frequently sought the forfeiture of vehicles that were owned by the drug dealers and used in the furtherance of criminal activity. Therefore, according to Lt. Hanners, those persons engaged in criminal activity often put the names of friends or family members on the titles to their vehicles in an attempt to avoid the application of the forfeiture statute.

Lt. Hanners testified that his investigation into the purchase of the vehicle at issue had revealed that on February 15, 2008, Bruce had purchased the vehicle but had placed the title to the vehicle in Hil-dreth’s name. In an effort to substantiate Lt. Hanners’s conclusion, the State presented the following pertinent evidence. David Price, an automobile wholesale dealer, testified that Bruce contacted him by telephone from A-l Lube and stated that he wanted to purchase the vehicle. According to Price, Bruce told him that he wanted to have the title to the vehicle placed in his mother’s name. Price also testified that Bruce left $5,000 in cash with Pam Williams, one of the owners of A-l Lube, in order to purchase the vehicle and that Price later received that money from Pam Williams. Mark Williams, the other owner of A-l Lube, testified that a young woman brought $6,000 in cash to A-l Lube and that it took him 15 minutes to count the money because the bulk of the cash was in $10, $5, and $1 denominations.

Donna Connell, who is licensed to sell automobiles to retail customers, actually performed the transaction for the sale of the vehicle on behalf of Price. Connell testified that Bruce completed all the paperwork for the sale but that he asked to place the title to the vehicle in Hildreth’s name. According to Connell, although the signature on several of the documents read “Johnnie Hildreth,” it was Bruce who signed those documents using Hildreth’s name.

In her testimony, Hildreth admitted that she knew of one of Bruce’s drug-related felony convictions, but she denied knowledge of Bruce’s other two drug-related convictions. Hildreth asserted that she was not aware of any criminal activity involving the vehicle on February 18, 2008. Hildreth testified that while she was assisting her sick sister, her daughter called to inform Hildreth that she had allowed Ivory to borrow the vehicle while Ivory was looking for employment. Hildreth testified that she had given her permission for Ivory to use the vehicle on that occasion. Hildreth did not specify the date on which Ivory had borrowed the vehicle.

Ivory testified that she and Bruce are just friends; it appears that Ivory is also a friend of Hildreth’s daughter. Ivory stated that she borrowed the vehicle from Hildreth’s daughter on a Friday and that she had permission to keep the vehicle until the following Monday. Ivory testified that she used the vehicle over the weekend for a variety of daily activities such as going to the grocery store and visiting relatives.

According to Ivory, on February 18, 2008, the day on which she was arrested for trafficking in cocaine, a friend named Libby asked Ivory to do her a favor. Ivory did not explain the nature of the conversation with Libby, but it is apparent from the context of Ivory’s testimony that Ivory maintained that she was asked to transport something from Georgia into Alabama and that she agreed to do so. According to Ivory, when she returned to Alabama and saw the lights of the police vehicle behind her, she first questioned what it was that she was transporting. Ivory stated that she then looked in her purse and, for the first time, realized that she had illegal drugs in her possession. Ivory testified that she became frightened and attempted to elude the police officers.

In its judgment ordering the forfeiture of the vehicle, the trial court made the following pertinent findings of fact:

“2. Bobby Bruce negotiated with David Price, a local wholesaler of automobiles for the purchase of the [vehicle] made the subject of this [forfeiture action].
“3. David Price, a local wholesaler of cars sold the car through Ralph Motors and Donna Connell to Bobby Bruce.
“4. Donna Connell owns and operates Ralph Motor Company in Eufaula, Alabama as a retail outlet for used cars.
“5. Bobby Bruce came to Donna Connell to have the title prepared on the [vehicle] and requested the [vehicle] be placed in the name of Johnnie Hildreth.
“6. Bobby Bruce indicated to Donna Connell that this was his mother, although Court testimony indicated that he is not the biological child of Johnnie Hildreth, but she considers him to be her son.
“7. Bobby Bruce had seen the automobile at A-l Lube in Eufaula, Alabama. Mark Williams and his wife, Pam Williams, own and operate A-l Lube and sometimes park automobiles on their lot for David Price.
“8. David Price indicated to Mark Williams someone would be bringing the money by in cash to purchase the [vehicle].
“9. Mark Williams testified that a young lady brought in approximately $6,000 in cash, mostly which was in various small denominations.
“10. The purchase was made on February 15, 2008.
“11. On February 18, 2008, officers of the Drug Task Force in Eufaula, Alabama acting on an anonymous tip, stopped the [vehicle] after it crossed into Alabama from Georgia and found approximately 224 grams of crack cocaine in the purse of Latorey Ivory, one of the other named Defendants in this [forfeiture action],
“12. Latorey Ivory had been seen by the Eufaula Police and Drug Task Force on several occasions in the company of Bobby Bruce.
“13. Bobby Bruce is a known drug dealer in the Eufaula area.
“14. Johnnie Hildreth testified that she owned two other automobiles in addition to the [vehicle] made the subject of this [forfeiture action],
“15. Johnnie Hildreth produced income tax records that showed she made $18,000 from the job she holds in the healthcare industry.
“16. Eufaula Police Officer and the Drug Task Force [agent] Stephen Han-ners testified that he had also seen La-torey Ivory with Bobby Bruce subsequent to the February 2008 arrest in a Ford Mustang titled in the name of Johnnie Hildreth.
“17. Although Johnnie Hildreth testified that the money used to pay for the automobile came from a tax refund, she could not produce a cancelled check or paperwork to substantiate said claim.
“18. The denominations of the bills, being small bills, i.e. $5, $10, and $20, leads this Court to the conclusion that the money used for the purchase [was derived] from the sale of drugs and narcotics and not from the cashing of a check.
19. The [vehicle] was purchased by Bobby Bruce with money used for drug transactions and used to transport drugs and drug operations.
“20. Johnnie Hildreth’s name was placed on the title at the request of Bobby Bruce and she was a straw man only.”

A trial court’s judgment in a forfeiture action is presumed to be correct and will be reversed only if it is contrary to the great weight of the evidence. Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala.Civ.App.2000); State v. Smith, 578 So.2d 1374, 1376 (Ala.Civ.App.1991). “In other words, a trial court’s judgment based on ore tenus evidence will not be reversed absent a showing that it amounts to an abuse of discretion.” Atkins v. State, 16 So.3d 792, 795 (Ala.Civ.App.2009) (citing Hillegass v. State, 795 So.2d 749, 753 (Ala.Civ.App.2001)).

Section 20-2-93, Ala.Code 1975, sets forth the authority pursuant to which the State may seek the forfeiture of property used in illegal activities. That section provides, in pertinent part:

“(a) The following are subject to forfeiture:
“(5) All ... vehicles which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of any property described in subdivision (1) or (2) of this subsection.”

Section 20-2-93 is penal in nature, and, therefore, it must be strictly construed. Ex parte McConathy, 911 So.2d 677, 681-82 (Ala.2005); Ex parte Smitherman, 902 So.2d 31, 34 (Ala.2004); and Holloway v. State ex rel. Whetstone, 772 So.2d 475 (Ala.Civ.App.2000).

On appeal, Hildreth asserts a number of arguments in which she attempts to demonstrate that the trial court erred in ordering the forfeiture of what she contends is her vehicle. For example, Hildreth argues that there is not sufficient evidence demonstrating that she knew or should have known that the vehicle would be used for an illegal purpose, that the forfeiture of the vehicle constituted an excessive fine, and that the search of the vehicle was improper.

However, we note that in her brief on appeal, Hildreth fails to address the ruling on which the trial court based its judgment, i.e., that Bruce purchased the vehicle and that Bruce used Hildreth as a “straw man” by placing title to the vehicle in Hildreth’s name. The term “straw man” is defined as “a person set up to serve as a cover for a usu[ally] questionable transaction.” Meriam-Webster’s Collegiate Dictionary 1233 (11th ed. 2003). “Straw man” has also been defined as:

“A ‘front’; a third party who is put up in name only to take part in a transaction. Nominal party to a transaction; one who acts as an agent for another for the purpose of taking title to real property and executing whatever documents and instruments the principal may direct respecting the property. Person who purchases property for another to conceal identity of real purchaser, or to accomplish some purpose otherwise not allowed.”

Black’s Law Dictionary 1421 (6th ed. 1990). Therefore, in finding that Hildreth was, in essence, only a front for Bruce’s ownership of the vehicle, the trial court implicitly determined that Hildreth was not actually the owner of the vehicle.

Section 20-2-93 specifies that only an owner or a bona fide lienholder may contest an action seeking the forfeiture of a vehicle:

“An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use.”

§ 20-2-93(h), Ala.Code 1975 (emphasis added).

This court has held that a party who is not the owner of a vehicle but who contests the forfeiture of the vehicle is required, pursuant to § 20-2-93, to demonstrate that he or she holds a valid lien on the vehicle in order to proceed to the further inquiry of his or her consent or knowledge. See State ex rel. Watkins v. Sellers, 894 So.2d 733, 736 (Ala.Civ.App.2004) (“Both parties agree that the State established its prima facie case concerning the automobile, and Gibbs concedes that she was not the owner of the automobile at the time of its seizure; thus, the automobile may be saved from forfeiture only if Gibbs was a bona fide lienholder who had no knowledge of Sellers’s drug trafficking and who could not have obtained knowledge of his illegal activities through reasonable diligence.”); and Jester v. State, 668 So.2d 822, 823 (Ala.Civ.App.1995) (“[T]he parties stipulated that the son’s marijuana offense was committed without the father’s knowledge or consent, and that the father ‘could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the vehicle so as to have prevented such use.’ The sole issue, therefore, is whether the father was a ‘bona fide lienholder’ within the meaning of § 20-2-93(h).”). Similarly, in this case before the trial court could inquire into whether Hildreth consented to, had knowledge of, or should have known of the intended illegal use of the vehicle, it was required to determine whether Hildreth was an owner of the vehicle or had a valid lien on the vehicle. State ex rel. Watkins v. Sellers, supra; Jester v. State, supra. Hildreth has asserted only ownership of the vehicle; she has not claimed to have any interest in the vehicle that might constitute a lien.

The fact that the title to the vehicle was in Hildreth’s name was not, in itself, proof that she was the owner of the vehicle; title to a vehicle is only prima facie evidence of ownership of the vehicle. § 32-8-39(d), Ala.Code 1975 (“A certificate of title issued by the [Department of Revenue] is prima facie evidence of the facts appearing on it.”). The prima facie evidence of ownership established by Hildreth’s having title to the vehicle could be rebutted by other evidence pertaining to the ownership of the vehicle. Eleven Autos. v. State, 384 So.2d 1129, 1131 (Ala.Civ.App.1980). This court has noted that “proof of title of any property sought to be forfeited under § 20 — 2—93[ ] is of little probative value since ‘people engaged in illegal activities often attempt to disguise their interests in property by placing title in someone else’s name.’ ” Agee v. State ex rel. Galanos, 627 So.2d 960, 963 (Ala.Civ.App.1993) (quoting United States v. One 1977 36 Foot Cigarette Ocean Racer, 624 F.Supp. 290, 294-95 (S.D.Fla.1985)).

The State presented evidence tending to rebut the prima facie case of ownership Hildreth asserted by virtue of having title to the vehicle in her name. That evidence indicated that Bruce performed the entire purchase transaction for the vehicle, that he completed all the paperwork associated with the purchase transaction, that he signed the sales-transaction documents in Hildreth’s name, and that the purchase price of the vehicle was paid in cash of small denominations that led the trial court to conclude that the “money used for the purchase [of the vehicle derived] from the sale of drugs and narcotics.” Hildreth presented evidence tending to indicate that she had received an income-tax refund in the approximate amount of the purchase price of the vehicle. Hildreth also stated that her daughter had signed the sales-transaction documents.

The evidence also supports a determination that Hildreth did not exercise possession of the vehicle she claimed to have purchased. Ivory, who testified that she was a “friend” of Bruce’s, testified that she borrowed the vehicle on a Friday and that she maintained possession of the vehicle until the following Monday. The vehicle was purchased on February 15, 2008, and, three days later, on February 18, 2008, the incident that formed the basis of this forfeiture action occurred. This court may take judicial notice of the fact that February 15, 2008, was a Friday and that February 18, 2008, was a Monday. Thus, the record contains evidence indicating that for the entire time between the February 15, 2008, purchase of the vehicle and February 18, 2008, the date on which the vehicle was seized by law-enforcement officials, the vehicle had remained in Ivory’s possession.

Although Hildreth presented evidence indicating that title to the vehicle was in her name, the State presented evidence to dispute Hildreth’s claim of ownership of the vehicle. “The trial court’s decision simply boiled down to an issue of credibility, and it is the trial court who as the sole judge of a witness’s credibility is charged with the duty of determining the weight to be accorded the testimony.” Cleckler v. A & C Air Conditioning & Heating, Inc., 820 So.2d 830, 835-36 (Ala.Civ.App.2001). See also Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986) (“The ore terms rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.”). It is the function of the trial court to resolve conflicts in the evidence, and the trial court’s resolution of those conflicts based on its receiving ore tenus evidence will not be reversed unless it is plainly and palpably wrong. Jefferson County v. City of Leeds, 675 So.2d 353, 354 (Ala.1995); Teague Bros. Transfer & Storage Co. v. Kinloch, 441 So.2d 968, 969 (Ala.Civ.App.1983); and Jones v. LeFlore, 421 So.2d 1287, 1288 (Ala.Civ.App.1982). The evidence supports the trial court’s determination that Bruce, a known drug dealer, purchased the vehicle. The record also supports a conclusion that Ivory, Bruce’s friend or girlfriend, maintained possession of the vehicle from the day it was purchased until the day it was seized by law-enforcement officials.

The trial court determined that Hildreth was merely a straw man, or a front, for Bruce’s ownership of the vehicle. As stated earlier, implicit in the trial court’s judgment is a determination that Hildreth is not the owner of the vehicle. We conclude that the trial court’s judgment is supported by the evidence in the record on appeal. Section 20-2-93, Ala.Code 1975, allows only an owner of a vehicle or a bona fide holder of a hen on the vehicle to contest or seek to prevent the forfeiture of the vehicle pursuant to that section. § 20 — 2—93(h); State ex rel. Watkins v. Sellers, supra; and Jester v. State, supra. Accordingly, because we are affirming the trial court’s determination that Hildreth is not the owner of the vehicle at issue in this matter, we pretermit discussion of the arguments raised in Hildreth’s brief on appeal.

We note that in her reply brief Hildreth attempts to submit evidence in the form of a document to this court and to assert a new argument based on that document to this court. This court may not consider matters outside the record that are included in an appellate brief. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala.2000). Our supreme court has explained:

“ ‘ “[Attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.” ’ Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim.App.2004) (quoting Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991)). Further, we cannot consider evidence that is not contained in the record on appeal because this Court’s appellate review ‘ “is restricted to the evidence and arguments considered by the trial court.” ’ Ex parte Old Republic Sur. Co., 733 So.2d 881, 883 n. 1 (Ala.1999) (quoting Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992), and citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)).”

Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007). Therefore, we may not consider the document included in Hil-dreth’s reply brief.

AFFIRMED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the majority opinion’s affirmance of the trial court’s judgment because I conclude that the trial court’s failure to join an indispensable party, i.e., Bobby Bruce, the person that the trial court determined to be the owner of the vehicle, deprived the trial court of jurisdiction to enter the judgment ordering that the vehicle be forfeited. See, e.g., Hodge v. State, 643 So.2d 982, 983-84 (Ala.Civ.App.1993) (holding that the owner of a vehicle subject to forfeiture proceedings was the real party in interest and an indispensable party to the forfeiture action).

“[T]he issue of the failure to join an indispensable party may ... be raised by an appellate court ex mero motu.” J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1005 (Ala.Civ.App.2007). “‘The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.’ ” Allbritton v. Dawkins, 19 So.3d 241, 244 (Ala.Civ.App.2009) (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981)). Because the majority opinion affirms the judgment, I dissent.

      . The testimony at the hearing indicated that although Hildreth is not the biological mother of Bruce, Hildreth reared Bruce. Hildreth testified that she was awarded custody of Bruce when he was three. It does not appear that Hildreth formally adopted Bruce, but the record demonstrates that Hildreth refers to Bruce as her son and that Bruce considers Hildreth to be his mother.

      . With regard to that allegation, Lt. Hanners testified:
      “As a matter of fact we have video evidence of two different cases with Mr. Bruce in [Hil-dreth’s] Mustang [(a vehicle not at issue in this appeal) ]. And on the other occasion, he was in a Monte Carlo with Miss Ivory on the passenger side when an undercover informant approached him about buying drugs, and he then offered the informant money to use her vehicle so he could go pick up a shipment to bring back. And that was with Miss Ivory in the passenger seat of that car.”

      . Several different amounts were referred to as the purchase price of the vehicle. Price testified that he was paid $5,000 but that the bill of sale reflected a purchase price of $4,000. Williams testified that he received $6,000 in cash to hold for Price. Hildreth testified that she paid $6,500 for the vehicle.

      . We note that although the State's theory was that Bruce, rather than Hildreth, owned the vehicle, the State did not serve Bruce with notice of the forfeiture action. Bruce did not file a pleading alleging an interest in the vehicle, and it does not appear that he has instituted any other proceeding regarding the vehicle. See Hodge v. State, 643 So.2d 982 (Ala.Civ.App.1993) (concluding, among other things, that a determination of whether a party is indispensable must be based on the specific facts of each case). Therefore, any claim by Bruce to the vehicle is not a matter currently before this court.

      . Our supreme court has explained the concept of judicial notice as follows:
      " ' "It is customary for courts to take judicial knowledge of what ought to be generally known within the limits of their jurisdiction. This cognizance may extend far beyond the actual knowledge, or even the memory of judges, who may therefore resort to such documents of reference, or other authoritative sources of information as may be at hand, and may be deemed worthy of confidence.

        Green v. Mutual Benefit Health & Accident Ass’n, 267 Ala. 56, 59, 99 So.2d 694, 697 (1957) (quoting Hodge v. Joy, 207 Ala. 198, 201, 92 So. 171, 174 (1921), quoting in turn Gordon v. Tweedy, 74 Ala. 232, 237 (1883)).


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge, BRYAN, Judge,

license: Public Domain

text:
    ALABAMA DEPARTMENT OF REVENUE v. The NATIONAL PEANUT FESTIVAL ASSOCIATION, INC.
    2080986.
    Court of Civil Appeals of Alabama.
    May 28, 2010.

      Troy King, atty. gen.; Ron Bowden, asst, atty. gen., and counsel, Alabama Department of Revenue; and David E. Avery III, asst. atty. gen., and asst, counsel, Alabama Department of Revenue, for appellant.
    Alan C. Livingston of Lee & Mclnish, P.C., Dothan; and R. Eugene Clenney, Jr., of Johnston, Hinesley, Flowers, Clenney & Turner, P.C., Dothan, for appellee.
   MOORE, Judge.

This is the second time these parties have been before this court regarding the proper amount of amusement taxes due from The National Peanut Festival Association, Inc. (“the taxpayer”), for the tax years 2004 and 2005. See Alabama Dep’t of Revenue v. National Peanut Festival Ass’n, Inc., 11 So.3d 821 (Ala.Civ.App.2008) (“Peanut Festival”). In the first appeal, this court reversed a judgment entered by the Houston Circuit Court (“the trial court”) exempting the taxpayer from any taxation on receipts generated from the National Peanut Festival (“the Festival”) for the tax years 2004 and 2005. This court determined that § 40-9-1(12), Ala.Code 1975, grants the taxpayer a general exemption from taxation on the revenue generated from the Festival but that, as an “exception” to that exemption, 11 So.3d at 828, § 40-9-1(12) allows the Alabama Department of Revenue (“the Department”) to assess an amusement tax of 4% against the gross receipts generated by the taxpayer from conducting or operating “nonagricultural shows and exhibits” at the Festival. 11 So.3d at 828. This court remanded the case to the trial court “for a determination of the tax due from the taxpayer for the sale of tickets to the [‘Miss Peanut’ and ‘Little Miss Peanut’ pageants] and the concerts [conducted at the Festival] and for a determination of the amount of the refund, if any, due the taxpayer.” 11 So.3d at 834.

On remand, the trial court took additional evidence and entered a judgment finding that the taxpayer owed $7,449.77 in amusement taxes for the years 2004 and 2005. The trial court found that the Department had assessed $65,494.29 in amusement taxes against the taxpayer for the relevant tax years; thus, the trial court ordered the Department to refund $58,044.52 to the taxpayer. The Department filed a timely appeal from that judgment. This court conducted oral argument on March 23, 2010.

On appeal, the Department initially argues that the trial court erred in taxing only the receipts generated from the Festival pageants and concerts and in not taxing receipts generated from other activities and events held at the Festival. We disagree.

“ ‘The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues.’ Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (citing Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992)). Moreover, on remand, ‘ “the trial court’s duty is to comply with the appellate mandate ‘according to its true intent and meaning, as determined by the directions given by the reviewing court.’ ” ’ Ex parte Jones, 774 So.2d 607, 608 (Ala.Civ.App.2000) (quoting Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983), quoting in turn Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983)).”

Brown v. Brown, 20 So.3d 139, 141 (Ala.Civ.App.2009).

In Peanut Festival, this court decided that § 40-9-1(12) prohibits the state from taxing any revenues generated from a state fair except revenue “from nonagricul-tural shows and exhibits conducted by the taxpayer at the event.” 11 So.3d at 828. In using the term “nonagricultural shows and exhibits,” this court was referring to “shows, displays or exhibits other than shows, displays or exhibits of agricultural implements, farm products, livestock and athletic prowess,” as set out in the last sentence of § 40-9-1(12). 11 So.3d at 827-28. In applying our construction of § 40-9-1(12) to the facts as established in the record, this court held that the Festival is a “state fair,” 11 So.3d at 831-32, and that the pageants and musical concerts held in conjunction with the Festival constituted “nonagricultural shows and exhibits.” 11 So.3d at 832. This court then stated:

“In this case, the record is not clear as to what part of the receipts related solely to the sale of admission tickets to the concerts and the ... pageants. In the case of the ... pageants, some tickets were sold separately to those events, but some tickets also were sold as part of the ‘patron’s package.’ As for the concerts, the record suggests that the price for access to the concerts is factored into the overall price of the admission tickets. Therefore, we cannot determine from the record the appropriate amount of taxes the taxpayer was obligated to collect and remit. We, therefore, remand the case to the trial court for it to conduct further proceedings on that point.”

11 So.3d at 834. Thus, this court instructed the trial court to determine on remand the tax due on only the receipts generated from the sale of admission tickets to the pageants and the concerts. This court did not order the trial court to ascertain if any other events conducted at the Festival could be subject to taxation under § 40-9-1(12).

In rendering the decision in Peanut Festival, this court was aware of all the activities and events conducted at the Festival. The record in Peanut Festival contained exhibits identifying all “special events” held at the Festival during 2004 and 2005. In addition, in her testimony, Pat Holland, the president of the taxpayer in 2007, described some of those events, including the midway, livestock exhibits, agricultural-equipment exhibits, a “Farmer for a Day” exhibit for children, recipe contests, and a “Doo-Da” parade for children. However, this court determined that only the pageants and the concerts could be considered “nonagricultural shows and exhibits” subject to taxation. The Department did not apply for rehearing or otherwise contest our determination; thus, that conclusion became the law of the case, and, on remand, the trial court was not free to reconsider that issue and decide for itself whether any other activities held at the Festival fell outside the scope of the limited exemption created by § 40-9-1(12).

“[Wjhatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.” Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). On remand, the Department did not attempt to introduce evidence as to receipts generated from other activities and events conducted at the Festival in 2004 and 2005 of which this court and the trial court were unaware. Instead, the Department attempted to have the trial court reclassify as nonexempt only the revenue generated from events and activities that this court had already determined fell within the § 40-9-1(12) exemption. The trial court correctly rejected the Department’s efforts in that regard and, therefore, did not commit any error in calculating the tax and refund due by referring to the receipts generated from only the pageants and the concerts.

The Department next contends that the taxpayer failed to meet its burden of proving that portion of the gate admission receipts that was exempt from the amusement tax. In the initial appeal, this court did not decide which party bore the burden of proof on that point. The Department’s argument assumes that the taxpayer bore that burden because the taxpayer generally bears the burden of proving the incorrectness of a tax assessment on appeal. See Ala.Code 1975, § 40-2A-7(b)(5)(c). However, the taxpayer has already proven the incorrectness of the tax assessment. The Department assessed an amusement tax on the entire gross receipts generated from the sale of the gate admission tickets, and, in Peanut Festival, this court decided that the taxpayer had proven, by showing that some portion of those receipts was exempt from tax under § 40-9-1(12), that the Department had incorrectly assessed the amusement tax. The essential question on remand was: What portion of the gate admission receipts was not taxable due to the § 40-9-1(12) exemption?

Generally speaking, Alabama law places the burden on the taxpayer to clearly establish its right to an exemption. See Flav-O-Rich, Inc. v. City of Birmingham, 476 So.2d 46, 48 (Ala.1985). When the taxpayer generates income, some of which is taxable and some of which is not taxable, the burden rests on the taxpayer to prove that portion which is not taxable. See, e.g., John Gary Ellis, Southern Breeze, LLC v. State Dep’t of Revenue, Administrative Law Division, Dkt. No. S. 07-884 (entered on August 25, 2008). That burden of proof coincides with the general duty of a taxpayer that is subject to an amusement tax to maintain suitable records “as may be necessary to determine the amount of tax for which he is liable.” § 40-23-9, Ala.Code 1975. Based on that legal authority, we conclude that the taxpayer bore the burden of proving on remand the portion of the gate admission receipts that were exempt from taxation pursuant to § 40-9-1(12).

On remand, the taxpayer proved that the concerts occurred on only 4 of the 9 or 10 days of the Festival in 2004 and 2005, respectively. On those dates, the taxpayer charged patrons the same gate admission fee as on dates the concerts were not held, $7. Those patrons wishing to view the concerts from within a fenced-in area in front of the concert stage on stadium-style benches set up for that purpose could purchase “reserved seating” for an additional $10. In 2004, the taxpayer generated $4,380 from the sale of “reserved seating” tickets, and, in 2005, it generated $13,230 from the sale of “reserved seating” tickets. On the other hand, those persons wishing to view the concerts from a hill outside that fenced-in area, where the view was more obstructed, were not charged any additional fee. The taxpayer did not count the number of people who viewed the concerts from outside the fence, but its witness testified that “plenty of people” attended the concerts that way.

In its judgment, the trial court determined that the amusement tax applied to the proceeds from the sale of “reserved seating.” However, the trial court concluded that “patrons [who] do not elect to purchase [reserved-seating tickets] are no more than mere incidental beneficiaries of the concerts.” The trial court noted that the Department had attempted to provide the court with a method for allocating the taxable and nontaxable portion of the gate admission receipts, but the trial court determined that that analysis “would have [the trial court] speculate as to what portion of the general admission ticket price is attributable to this incidental benefit.” The trial court therefore did not apply any amusement tax to the gate admission tickets sold on the concert dates.

In its judgment, the trial court effectively ruled that the taxpayer owed no further amusement tax because the Department had failed to prove the taxable portion of the gate admission receipts. However, as we have decided, the burden was not on the Department to prove the taxable portion of the gate admission receipts; rather, the burden of proof rested on the taxpayer to prove the nontaxable portion of those receipts. The taxpayer did not attempt to prove that amount, leaving the trial court to speculate as to that issue. The taxpayer should not be allowed to profit from the failure to discharge its burden by avoiding any taxation on its gate admission receipts, as the trial court held. Rather, because the taxpayer did not prove that any portion of the receipts generated from the gate admission ticket sales on the date of the concerts fell within the exemption, all of those receipts should be taxed. See Ex parte White, 477 So.2d 422 (Ala.1985) (manufacturer who did not comply with reasonable Department of Revenue administrative rule requiring separate metering of taxable and exempt uses of gas and electricity was required to pay tax on combined taxable and exempt uses). Accordingly, we reverse the judgment of the trial court and remand the case to the trial court to determine from the evidence in the record the gross amount of receipts generated from the sale of gate admission tickets on the dates of the concerts, to determine the amusement tax due on those receipts, and to determine the amount of the refund, if any, due the taxpayer.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN and THOMAS, JJ, concur.

THOMPSON, P.J., and BRYAN, J„ concur in part and dissent in part, with writings.

THOMPSON, Presiding Judge,

concurring in part and dissenting in part.

I agree with the main opinion that the trial court was instructed on remand to determine only the tax due on receipts generated from the sale of tickets to pageants and concerts, because this court has already determined that other activities conducted by The National Peanut Festival Association, Inc., are not subject to taxation pursuant to § 40-9-1(12), Ala. Code 1975. I also agree with the main opinion that the revenue generated by the sale of tickets to pageants and concerts are subject to taxation. However, as I stated in my special writing in the original appeal of this case, Alabama Department of Revenue v. National Peanut Festival Ass’n, Inc., 11 So.3d 821, 834 (Ala.Civ.App.2008) (Thompson, P.J., concurring in part and dissenting in part), because it was initially unclear which Festival events and activities were exempt from taxation pursuant to § 40-9-1(12), I would not require the taxpayer to pay taxes on the revenue generated from concerts and pageants occurring before November 7, 2008, when this court issued its opinion clarifying which events and activities were subject to taxation.

BRYAN, Judge,

concurring in part and dissenting in part.

I concur insofar as the main opinion holds that the law of the case bars the Alabama Department of Revenue from arguing that the trial court erred in taxing only the receipts generated by the pageants and the concerts associated with the Festival and in not taxing receipts generated by other activities and events associated with the Festival. However, I must respectfully dissent from all other aspects of the main opinion because I am still of the opinion that all receipts generated by the sale of admission tickets 'to events or shows associated with the Festival are exempt from taxation for the reasons I stated in my dissent in Alabama Department of Revenue v. National Peanut Festival Ass’n, Inc., 11 So.3d 821 (Ala.Civ.App.2008). I also dissent on the ground that the main opinion makes new law in holding that The National Peanut Festival Association, Inc. (“the taxpayer”), bore the burden of proving the nontaxable portion of the gate-admission receipts and then punishes the taxpayer for not anticipating this new law by precluding the taxpayer from introducing additional evidence on remand to satisfy that burden of proof.

      . The receipts from the operation of the midway were not in issue in Peanut Festival, and, therefore, this court did not have any occasion to address the propriety of the taxation of those receipts. See 11 So.3d at 825 n. 2.

      .Because we decide that the law-of-the-case doctrine prevented the trial court from determining whether activities and events other than the pageants and the concerts were "nonagricultural shows and exhibits,” we do not address the Department's argument that the trial court used the wrong criteria in differentiating between agricultural and non-agricultural shows.

      . The parties have agreed as to the tax due for the sale of tickets to the pageants, so that issue is not before us on this appeal.

      . Although rulings of administrative law judges in tax cases are not binding on this court, they are persuasive authority upon which this court may rely. See Marks-Fitzgerald Furniture Co. v. State Dep’t of Revenue, 678 So.2d 121 (Ala.Civ.App.1995).

      . Due to a misunderstanding on the nature of those receipts, the Department did not originally assess a tax on the receipts generated from the sale of "reserved seating” tickets for the concerts. Because no tax had been assessed on the sale of those tickets, the trial court erred in ruling on the taxability of those receipts, which was not in issue. However, the taxpayer did not file a cross-appeal regarding the trial court’s ruling on that issue, so we do not address that issue further.

      . Based on our holding, we pretermit any discussion of the Department's argument that the trial court erred in excluding evidence it attempted to introduce in order to prove the appropriate allocation between the taxable and nontaxable portion of the gate admission receipts. Any error the trial court may have committed in that regard has not resulted in any prejudice to the Department. See Rule 45, Ala. R.App. P.

      .The receipts generated from the sale of gate admission tickets on the dates on which no concerts were held could not possibly be categorized as taxable income because the taxpayer did not exhibit any nonagricultural shows or displays on those dates. Hence, the trial court did not err in concluding that the taxpayer owed no taxes on the receipts from the sale of gate admission tickets on those dates.

      . The taxpayer is not entitled to any credit for the payment of taxes on reserved-seating tickets. See note 5, supra.


author: PITTMAN, Judge.

text:
    James R. BLACKSTON v. ALABAMA DEPARTMENT OF REVENUE et al.
    2080916.
    Court of Civil Appeals of Alabama.
    May 28, 2010.

      James R. Blackston, pro se.
    Winthrop E. Johnson of Webb & Eley, P.C., Montgomery; and Bill Manasco, chief asst. dist. atty., Jasper, for appellees.
   PITTMAN, Judge.

James R. Blackston appeals from a judgment of the Walker Circuit Court that dismissed his appeal to that court from the decision of the Walker County Board of Equalization (“the Board”) denying Black-ston an opportunity to protest the Board’s 2008 valuation of certain real property Blackston owned. We reverse and remand.

The record discloses that at all times pertinent to this appeal Blackston owned a parcel of improved real property in Walker County. On June 24, 2008, the Board mailed Blackston a notice showing the assessor’s valuation of Blackston’s property and the ad valorem tax due based on that valuation. Blackston adduced evidence tending to show that he did not receive the mailing until July 25, 2008. Blackston mailed the Board notice of his protest on July 25 or 26, 2008, and the Board mailed Blackston a reply stating that his protest would not be considered on the ground that it was untimely. After further correspondence between Blackston and the Board, Blackston appealed to the Montgomery Circuit Court, naming as defendants various entities and individuals of the State of Alabama. Upon motion by the defendants, the case was transferred to the Walker Circuit Court, the proper venue for this case. See Ala Code 1975 § 40-3-24 (“[the taxpayer] may take an appeal ... to the circuit court of the county in which the taxpayer’s property is located”).

The circuit court held a hearing on the defendants’ motions to dismiss in March 2009, and it entered its judgment in May 2009. The circuit court determined that Blackston’s appeal was due to be dismissed on the ground that it was untimely. The judgment states, “all of [Blackston’s claims] fail, based either on untimeliness or failure to follow the statutory procedure, [or failure] to state a cause of action upon which relief can be granted.” Citing §§ 40-3-25 and 40-7-2, Ala.Code 1975, the circuit court opined that Blackston was required to notify the Board of his protest within 30 days of its June 24, 2008, valuation of his real property; that, given Blackston’s failure to meet that deadline, the valuation became final on July 24, 2008; that Blackston was then required to appeal to the circuit court within 30 days of July 24, 2008; and that, because Black-ston filed his appeal with the circuit court on August 27, 2008, that appeal was also untimely. The circuit court also quoted from Coughlin v. State, 455 So.2d 17 (Ala.Civ.App.1983), in which this court stated that “the right to appeal in a tax proceeding is a right conferred by statute and must be exercised in the manner and within the time required by the statute.” 455 So.2d at 18 (citing Denson v. First Nat’l Bank of Birmingham, 276 Ala. 146, 159 So.2d 849 (1964)).

Because the circuit court entered its judgment after considering matters outside the pleadings, we treat this appeal as an appeal from a summary judgment. Rule 12(c), Ala. R. Civ. P. The standard of appellate review of a summary judgment is not deferential; rather, this court applies the same standard as the circuit court in determining whether summary judgment was proper. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). The entry of a summary judgment requires satisfaction of a two-part test: a showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When a question presented on appeal is one of law, no presumption of correctness is afforded to the trial court’s judgment, and an appellate court reviews such questions de novo. Moss v. Williams, 822 So.2d 392, 394 (Ala.2001).

We conclude that the parties and the circuit court misconstrued the statutes that govern Blackston’s protest. Black-ston, the defendants, and the circuit court all referred to § 40-7-25 as fixing the period within which Blackston was to notify the Board of his protest — that statute affords “30 calendar days of the date of the statement” in which to protest (emphasis added). The “statement” referred to in § 40-7-25 is a statement “showing separately the value of [the taxpayer’s] personal property and his or her real property, and improvements thereon.” Id. That statement is required to be produced by the “assessing official” only “[i]n the event the value of ... property ... is increased by the county board of equalization ... over the assessed value thereof for the next preceding year....” Id. (emphasis added). The record discloses that the assessed value of Blackston’s property was the same in 2008 as it was in 2007. Hence, § 40-7-25 does not govern Blackston’s protest.

The circuit court’s reliance on § 40-3-25, captioned “Appeals — Procedure” in the Alabama Code, is likewise misplaced. That section provides that the taxpayer must “appeal” within 30 days of the “final decision of [the] board fixing the assessed valuation as provided in this chapter” (emphasis added). That chapter, Chapter 3 of Title 40, Ala.Code 1975, provides in § 40-3-16 that the Board must interview each protestor who files his or her protest “within time.” That section further provides that, when the interview does not result in an agreement, the Board must hold a hearing to consider the taxpayer’s protest. That process results in a final valuation by the Board, see § 40-3-19, and the whole of Chapter 3 makes it clear that that final valuation is the one from which the taxpayer may appeal under §§ 40-3-24 (“Appeals — Right”) and 40-3-25. Since the Board never considered Blackston’s protest in the manner prescribed by § 40-3-16, the question of the timeliness of Blackston’s appeal to the circuit court under § 40-3-25 from an adverse action of the Board on his valuation protest was never properly raised.

The section that governs Black-ston’s protest is § 40-3-20, Ala.Code 1975. Section 40-3-16 provides that boards of equalization are to review the value of all property returned to or listed with the assessing official each year. Section 40-3-20 provides that upon completion of that review,

“the assessing official shall give notice by publication once a week for two consecutive weeks in a newspaper published in the county. If no newspaper is published in the county, the notices shall be posted in three public places in each precinct of the county. The notices shall state that the assessed valuations of all property listed for taxation have been fixed as provided by law, that the tax return lists showing the assessed valuations are in his or her office and open for public inspection, that the board of equalization will sit at the courthouse of the county on the date specified by the Department of Revenue to consider any protests that may be filed by any taxpayer as herein provided, and that any taxpayer, who is not satisfied with the valuations of his or her property as fixed and entered on the return lists as required herein, may file objections in writing to the assessed valuations with the secretary of the board, within 30 calendar days of the date of final publication of the notice.”

Section 40-3-20, then, governs protests to the board by taxpayers whose assessed valuations have not increased over the next preceding year, and it provides that any protests must be filed within 30 calendar days of the assessing official’s final publication of public notice. Under that section, it is incumbent upon each taxpayer to make himself or herself aware of the date of the notice. Section 40-7-25, whose applicability is limited by its terms to taxpayers whose property assessments increase over the next preceding year, places an additional burden on the assessing official — that official must provide those taxpayers with a statement detailing the assessment — and those taxpayers then have 30 days from the date of that statement to file a protest.

The record in this case contains no evidence, and suggests that none was adduced in the circuit court, tending to show when or whether the Board met its burden under § 40-3-20 of providing public notice of the completion of its annual assessment task. It is the final public notice, and not the June 24, 2008, notice mailed to Black-ston — a gesture not required by statute— that began the 30-day period during which protests could properly be filed with the Board. Because Rule 56(c)(3), Ala. R. Civ. P., requires that there be no genuine issue of material fact in order for a summary judgment to be affirmed, and because the record is silent regarding a material fact that may be dispositive of this case, the circuit court’s summary judgment cannot stand.

Blackston makes several other contentions on appeal. The first is that he has a statutory right to reopen the assessment of his property at any time before the taxes become delinquent under Ala. Code 1975, § 40-7-25. That statute, however, applies only to taxpayers whose taxes have increased in the year in which the taxpayer files a protest; hence, that statute does not apply to this case, and Black-ston does not have the right to reopen the 2008 assessment of the subject property.

Blackston’s next contention is that he has been denied constitutional due process — notice and an opportunity to be heard — by his allegedly late receipt of his tax notice and the subsequent denial of a hearing of his protest. As discussed above, since Blackston’s tax assessment did not increase in 2008, the statute providing for the written notice upon which Blackston alleges that he relied is not § 40-7-25, as read in conjunction with § 40-3-25, but § 40-3-20, which expressly provides for notice to all taxpayers by publication and an opportunity to be heard when taxpayers file .notices in a timely fashion — i.e., within 30 days from the last date of public notice. Blackston’s constitutional argument, because it is made in reliance on a statute that does not apply to this case, therefore lacks merit.

Blackston then contends that the Board failed to abide by the procedural requisites of § 40-3-16, which lays out the procedures that boards of equalization must observe when tax protests are filed in a timely manner. Blackston’s arguments in support of this contention again rely on § 40-7-25, which does not apply to this case. The relevance of § 40-3-16 cannot be determined by this court at this time; it can be established only once it is determined by the circuit court whether Black-ston’s protest was timely under § 40-3-20.

Blackston finishes by alleging that various of his rights under the United States Constitution were violated by the circuit court’s refusal to grant Blackston personal access to the Alabama Judicial System’s E-Filing Web site, which allows the filing of court documents over the Internet. Blackston alleges that the constitutional violations derive from the fact that licensed attorneys are allowed access to that system, while pro se litigants are not. This contention lacks merit on multiple grounds. First, Blackston alleges that the circuit court denied his motion to be allowed to participate in Alabama’s electronic-filing system in open court in March 2009, but there is no transcript of that hearing in the record, nor did Blackston file a statement of the proceedings pursuant to Rule 10(d), Ala. R.App. P. It is the appellant’s responsibility to ensure that the record on appeal is sufficient to support the issues raised on appeal. State v. Robinson, 510 So.2d 834, 835 (Ala.Civ.App.1987). Second, during all times pertinent to these proceedings, pro se litigants have been allowed by Alabama’s electronic-filing system to file online, beginning with the institution of the first pilot project launching the system in 2005; Blackston could have participated online himself without permission from the circuit court, which fact disposes of all Blackston’s constitutional arguments supporting his contention that he should be allowed to participate in the electronic-filing process. Third, if in fact the circuit court did err in denying Blackston permission to use the judicial system’s electronic-filing system, Black-ston fails in his appellate brief to demonstrate that his substantive rights were prejudiced in any way by the error so as to warrant reversal. See Rule 45, Ala. R.App. P.

Because we hold that the circuit court erred in dismissing Blackston’s appeal as untimely based on §§ 40-3-25 and 40-7-25, Ala.Code 1975, and not based on the potential applicability of § 40-3-20, and because the threshold factual question whether that- refusal was proper remains to be determined under § 40-3-20, we reverse the circuit court’s judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Blackston’s complaint alleged various statutory, constitutional, and other causes of action against numerous defendant.


author: BRYAN, Judge.

text:
    David Scott OWENS v. Vasaliki Michelle OWENS (Parker).
    2081158.
    Court of Civil Appeals of Alabama.
    June 4, 2010.

      Ronald 0. Gaiser, Jr., of Gaiser & Johnston, Birmingham, for appellant.
    Candace B. Peeples of Shaw, Anderson & Peeples, LLC, Birmingham, for appel-lee.
   BRYAN, Judge.

David Scott Owens (“the former husband”) appeals from a judgment of the Jefferson Circuit Court (“the trial court”) that found him in contempt for failure to pay child support to Vasaliki Michelle Owens (Parker) (“the former wife”). We dismiss the appeal.

The parties were divorced in Okaloosa County, Florida, in 1987. Pursuant to the divorce judgment, the former wife was awarded custody of the parties’ minor child and the former husband was ordered to pay child support in the amount of $200 each month (the child-support order within the Florida divorce judgment will hereinafter be referred to as “the foreign child-support order”). The former husband subsequently moved to Jefferson County, Alabama. On July 17, 2007, the former wife filed a petition for a rule nisi and a motion to enroll and enforce the foreign child-support order in the trial court. In her petition, the former wife alleged that the former husband had failed to timely pay child support as ordered in the foreign child-support order, and the former wife sought a judgment finding the former husband in civil and criminal contempt, as well as an award of attorney’s fees. The former husband answered the former wife’s petition on August 14, 2007, with a general denial of every allegation contained in the former wife’s petition.

On January 22, 2008, the former husband filed a motion to dismiss the former wife’s petition for a rule nisi alleging that the trial court lacked subject-matter jurisdiction to hear the former wife’s petition. After a hearing on the former husband’s motion to dismiss, the trial court denied the motion. On March 17, 2008, the former wife filed an amended motion to enroll and enforce the foreign child-support order. On October 9, 2008, the trial court granted the former wife’s motion to enroll and enforce the foreign child-support order.

After several continuances, the trial court conducted an ore tenus hearing on the former wife’s petition for a rule nisi on July 27, 2009. The trial court entered a judgment on August 19, 2009, that found the former husband in criminal and civil contempt, and the trial court sentenced the former husband to 905 days’ imprisonment unless he complied with the terms set forth in the trial court’s judgment. The trial court awarded the former wife a judgment for unpaid interest on the former husband’s child-support arrearage and ordered the former husband to pay the former wife’s attorney’s fees. The former husband timely appealed.

On appeal, the former husband raises eight issues for review by this court; however, we find the first issue, whether the trial court had subject-matter jurisdiction over the proceedings, dispositive of the appeal.

The jurisdiction of an Alabama court to enforce a foreign child-support order is governed by the Alabama Uniform Interstate Family Support Act (“the UIFSA”), codified at § 30-3A-101 et seq., Ala.Code 1975. Because the former wife sought to enforce the provisions of the foreign child-support order, she was required to register the foreign child-support order according to the requirements set forth in § 30-3A-602, Ala.Code 1975. That section provides:

“(a) A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate court in this state:
“(1) a letter of transmittal to the court requesting registration and enforcement;
“(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(i) the obligor’s address and social security number;
“(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and
“(iii) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) the name and address of the obli-gee and, if applicable, the agency or person to whom support payments are to be remitted.
“(b) On receipt of a request for registration, the registering court shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.
“(c) A petition or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.”

In this case, the former wife did not file two copies of the foreign child-support order with the clerk of the trial court. The former wife also did not file a sworn statement showing the amount of any arrearage owed by the former husband, nor did the former wife file a certified statement by a tribunal or collection agency in the State of Florida showing the amount of any arrearage owed by the former husband.

In Mattes v. Mattes, [Ms. 2081122, March 12, 2010] — So.3d -, - (Ala.Civ.App.2010), the mother sought to modify and enforce a foreign child-support-order, but she did not file two copies of the child-support order, one of them certified, with the clerk of the trial court. In that case, we concluded that the mother had not met the statutory requirements of § 30-3A-602 and that, as a result, the trial court had never obtained subject-matter jurisdiction to enforce the foreign child-support order. Id. Because the trial court lacked subject-matter jurisdiction to enforce the foreign child-support order, the judgment was void and we dismissed the appeal. Id.

Because the former wife in this case also did not meet the statutory requirements of § 30-3A-602, we must conclude that the trial court never obtained subject-matter jurisdiction to enforce the foreign child-support order. “Judgments entered without subject-matter jurisdiction can ‘be set aside at any time as void....”’ Alves v. Board of Educ. of Guntersville, 922 So.2d 129, 134 (Ala.Civ.App.2005) (quoting International Longshoremen’s Ass’n v. Davis, 470 So.2d 1215, 1217 (Ala.1985)). This court is required to dismiss an appeal from a void judgment. Mattes v. Mattes, — So.3d - (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008)) (“ ‘[A]n appellate court must dismiss an attempted appeal from ... a void judgment.’”). Therefore, we dismiss the former wife’s appeal and instruct the trial court to vacate its August 19, 2009, judgment.

The former wife’s request for an award of attorney’s fees on appeal is denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . We therefore pretermit discussion of the former husband's remaining issues presented on appeal.

      . The former wife, in her amended motion to enroll and enforce the foreign child-support order, included a calculation of the former husband’s arrearage and interest that she alleged was due under the foreign child-support order, but the motion was not sworn or otherwise verified in any manner.


text:
    Michael Berry McMILLAN v. Dawn Dean McMILLAN.
    2081043.
    Court of Civil Appeals of Alabama.
    June 4, 2010.

      David C. Livingston, Gadsden, for appellant.
    Jay E. Stover of Stover, Stewart & Phillips, LLC, Gadsden, for appellee.
   BRYAN, Judge.

Michael Berry McMillan (“the husband”) appeals from a judgment divorcing him from Dawn Dean McMillan (“the wife”). We affirm.

The husband presents two issues on appeal: (1) whether the trial court erred in awarding the wife a property settlement in the amount of $20,000, which, the husband says, violated the unambiguous terms of a postnuptial agreement the parties had executed, and (2) whether the trial court erred in requiring the husband “to provide the [wife] with 12 months of COBRA” health-insurance benefits.

The husband and the wife are both 51 years old. The husband has one child by a previous marriage, and the wife has two children by a previous marriage. No children were born of the marriage between the husband and the wife.

The wife and her two children moved into the husband’s home, which is located on 17 acres, a few months before the husband and the wife married on November 1, 2004. Before the wedding, the husband had told the wife that, upon his death, he wanted the home and the 17 acres to go to his brother because his brother had assisted him in developing the 17 acres. On November 8, approximately a week after the wedding, the husband presented the wife with a postnuptial agreement. The wife signed the postnuptial agreement that same day without seeking the advice of an attorney. The husband signed the post-nuptial agreement on November 11, 2004.

In pertinent part, the postnuptial agreement states:

“3. Divorce. If any marriage of MICHAEL B. McMILLAN and DAWN D. McMILLAN is annulled or dissolved by divorce in any jurisdiction, neither party will claim any right, title, or interest in or to any of the sole property or estate of the other party, whether real, personal, or mixed, and each party does hereby waive and forfeit the right to claim any of the sole property of the other party in such event. Likewise in the event any marriage of the parties is annulled or dissolved by divorce in any jurisdiction, the parties agree that neither shall claim any right to alimony from the other or pension or other retirement plan rights of the other, and do expressly forfeit and waive their respective rights to any alimony or any such pension or other retirement plan rights. As to property owned jointly by the parties, whether real, personal, or mixed, in the event any marriage of the parties is annulled or dissolved by divorce in any jurisdiction, the parties agree that either such properties will be sold and they will share equally in the net proceeds of any such sale, or, at the option of either party, one party may purchase the other party’s share in all or any such jointly owned real properties at fair market value. All liabilities in connection with any of said properties including mortgage indebtedness, shall be considered joint, whether entered into by both of the parties or by one of the parties alone.
“7. Disclosure of Facts. DAWN D. McMILLAN acknowledge^] that the present approximate net worth of MICHAEL B. McMILLAN has been fully and completely disclosed to her, that she has given consideration to this information, that she has had the advice of independent counsel, or has declined the advice of independent counsel and that she is entering into this Postnuptial Agreement freely and with a full understanding of its provisions. MICHAEL B. McMILLAN acknowledges that the present approximate net worth of DAWN D. McMILLAN has been fully disclosed to him, that he understands that he has given consideration to this information, that he has had the advice of independent counsel, and that he is entering into this Postnuptial Agreement freely and with a full understanding of its provisions.
“8. Consideration. The consideration for this Postnuptial Agreement is the continuation of the marriage by the parties, and the mutual covenants, promises, and benefits herein contained.”

(Capitalization in original; emphasis added.)

After the marriage, the wife improved the 17 acres by, among other things, building rock gardens, planting flowers, and spreading sand along the bank of a pond located on the 17 acres. The husband paid for many of the materials used in those improvements.

Following an argument, the parties separated on January 29, 2009. On February 13, 2009, the wife sued the husband for a divorce on the ground of incompatibility and sought an equitable division of the marital property. On February 26, 2009, the husband answered the wife’s complaint and asserted a counterclaim seeking a divorce on the ground of incompatibility. In his answer, he asserted that the postnup-tial agreement barred the wife from claiming an interest in the home and the 17 acres where the husband and the wife had resided during the marriage. The wife then answered the husband’s counterclaim.

Following a hearing, the trial court, on April 23, 2009, entered an order awarding the wife pendente lite alimony in the amount of $400 per month. The husband moved the trial court to reconsider that award on the ground that it violated the postnuptial agreement; the trial court denied that motion.

Following an ore tenus proceeding, the trial court entered a judgment divorcing the parties on June 29, 2009. In pertinent part, the judgment stated:

“This matter having come before this Honorable Court on the 26th day of May, 2009, it is hereby ORDERED, ADJUDGED AND DECREED, as follows:
“2. That the Court holds that the postnuptial agreement is valid to the extent that it does not conflict with this final decree of divorce issued by this Court.
“4. The [husband] is ordered to pay to the [wife] $20,000.00 as a property settlement to be paid within 60 days from the date of this order. The [husband] is required to continue paying the $400.00 per month alimony pending payment by the [husband] to the [wife] in the amount of $20,000.00. The [husband] is to be given credit for the $400.00 per month beginning June 1, 2009 towards the $20,000.00 property interest.
“5. The [husband] is ordered to provide the [wife] with 12 months of COBRA beginning the date of this order.”

(Capitalization in original; emphasis added.)

The husband timely moved the trial court to alter or amend the judgment pursuant to Rule 59(e), Ala. R. Civ. P. The husband asserted that the trial court should alter or amend the judgment to state the ground upon which the divorce was granted. He also asserted that the trial court should alter or amend the judgment to eliminate the award to the wife of a property settlement in the amount of $20,000 because, he said, that award violated the postnuptial agreement, which, the husband said, the trial court had determined was valid. In addition, he asserted that the trial court should alter or amend the judgment to eliminate the provision requiring him “to provide the [wife] with 12 months of COBRA” health-insurance benefits because, he said, the wife had not requested such relief in her complaint or in her direct testimony at trial and the parties’ circumstances did not warrant such relief. The trial court amended the judgment to specify incompatibility as the ground upon which the divorce was granted and denied the husband’s postjudgment motion in all other respects. The husband then timely appealed to this court.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

The husband first argues that the trial court erred in awarding the wife a property settlement in the amount of $20,000 because, he says, that award violates the postnuptial agreement, which, he says, the trial court determined was valid. The wife, on the other hand, argues that the trial court did not err in awarding her the property settlement in the amount of $20,000 because, she says, the trial court could have found from the evidence that the home and the 17 acres were used for the common benefit of the husband and the wife before they signed the postnuptial agreement and that, therefore, the home and the 17 acres constituted marital property rather than the husband’s separate property on the date they signed the post-nuptial agreement. Thus, according to the wife, the trial court could have found that she had not waived her claim to an interest in the home and the 17 acres by signing the postnuptial agreement. Consequently, according to the wife, the trial court had the discretion to award her $20,000 to compensate her for her interest in the home and the 17 acres.

In Nelson v. Estate of Nelson, [Ms. 2080989, Jan. 29, 2010] — So.3d - (Ala.Civ.App.2010), a case involving a post-nuptial agreement, this court stated:

“ ‘[A]ntenuptial agreements are valid in Alabama. However, courts scrutinize such agreements to determine whether they are just and reasonable.’ Barnhill v. Barnhill, 386 So.2d 749, 751 (Ala.Civ.App.1980) (citation omitted). Prenuptial and postnuptial agreements are scrutinized by the same standard. Tibbs v. Anderson, 580 So.2d 1337, 1339 (Ala.1991). In Barnhill, supra, this court required the party seeking to enforce an antenuptial agreement — in that case, a husband seeking to enforce a prenuptial agreement — to show that the entire transaction was fair, just, and equitable from the wife’s point of view or that the agreement had been freely and voluntarily entered into by the wife, with competent independent advice and with full knowledge of her interest in the estate and its approximate value. Id. at 751. ‘Meeting the requirements of either of the above tests is sufficient to give effect to an antenuptial agreement.’ Id.”

— So.3d at -. Moreover, if a written antenuptial or postnuptial agreement is valid and unambiguous, it must be enforced according to its terms. See Hubbard v. Bentley, 17 So.3d 652, 654 (Ala.Civ.App.2008) (“[W]e held in both McGiffert v. McGiffert, 627 So.2d 972, 977 (Ala.Civ.App.1993), and in Brown v. Brown, [26] So.3d [1210, 1219] (Ala.Civ.App.2007), that trial courts may not dispose of property addressed in an antenuptial agreement in a manner that is inconsistent with that agreement.”).

In Nelson v. Estate of Nelson, an exhibit attached to the postnuptial agreement specified what property the parties agreed was the separate property of the husband and the separate property of the wife for purposes of the postnuptial agreement. — So.3d at -. In the case now before us, on the other hand, neither the postnuptial agreement itself nor an attached exhibit specified what property the parties agreed was the separate property of the husband and the separate property of the wife for purposes of the postnuptial agreement. The undisputed evidence established that the home and the 17 acres were used for the common benefit of the husband and the wife between November 1, 2004, the date they married, and November 8, 2004, the date the wife signed the postnuptial agreement.

In the absence of a contractual agreement regarding what property constituted each party’s separate property on the date they signed the postnuptial agreement, we must look to the law governing what constitutes a spouse’s separate property to determine whether the home and the 17 acres were the husband’s separate property on the date the wife signed the postnup-tial agreement. In Nichols v. Nichols, 824 So.2d 797 (Ala.Civ.App.2001), this court stated:

“A party’s 1 “separate estate” is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.’ Gartman v. Gartman, 376 So.2d 711, 713 (Ala.Civ.App.1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51(a), Ala.Code 1975. Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their mamage. See § 30-2-51(a), Ala.Code 1975.
“The trial judge is granted broad discretion in determining whether property purchased before the parties’ marriage or received by gift or inheritance was used ‘regularly for the common benefit of the parties during the marriage.’ See § 30-2-51, Ala.Code 1975. Even if the trial court determines that such property was regularly used for the common benefit of the parties during the marriage, the determination whether to include such property in the marital assets to be divided between the parties lies within the discretion of the trial court. Durbin v. Durbin, 818 So.2d 404 (Ala.2001).”

824 So.2d at 802 (emphasis added).

Because the parties did not specify in the postnuptial agreement that the home and the 17 acres were the separate property of the husband for purposes of the postnuptial agreement, the trial court was free to determine that the home and the 17 acres constituted marital property by virtue of their use for the common benefit of the husband and the wife before the wife signed the postnuptial agreement. Although the postnuptial agreement requires that the parties sell their marital property and divide the proceeds equally unless one of the parties buys the other’s interest in the marital property, the husband does not argue that the trial court erred by awarding the wife $20,000 to compensate her for her interest in the home and the 17 acres. “When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). Consequently, we affirm the trial court’s judgment insofar as it awarded the wife a property settlement in the amount of $20,000.

The husband next argues that the trial court erred in ordering him “to provide the [wife] with 12 months of COBRA” health-insurance benefits because, he says, she did not request such relief in her complaint or in her direct testimony at trial and the evidence did not establish that COBRA health-insurance benefits are available through his employer. Although the wife did not request that the trial court order the husband to pay for COBRA health-insurance benefits until she testified during the rebuttal phase of the trial, the husband did not object to her testimony concerning that request. Rule 15(b), Ala. R. Civ. P., provides, in pertinent part, that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” The husband, by failing to object to the wife’s testimony concerning her request for COBRA health-insurance benefits implicitly consented to the trial court’s considering that request at trial. See Hawk v. Bavarian Motor Works, 342 So.2d 355, 358 (Ala.1977) (“Implied consent to the trial of an issue may be found when a party fails to object to evidence offered concerning it.... ”) Therefore, there is no merit to the husband’s argument that the trial court erred in ordering him to provide COBRA health-insurance benefits for the wife in the absence of a claim for such benefits in her complaint and in her direct testimony.

The husband’s argument that the trial court erred by ordering him to provide COBRA health-insurance benefits in the absence of any evidence establishing that such benefits were available through his employer would warrant a reversal of that provision of the divorce judgment if he had presented that argument to the trial court. In Lackey v. Lackey, 18 So.3d 393 (Ala.Civ.App.2009), this court held that a trial court had erred in ordering a husband to provide his wife with COBRA health-insurance benefits in the absence of any evidence establishing that such benefits were available through his employer. However, in the case now before us, the husband did not argue to the trial court that it could not order him to provide COBRA health-insurance benefits in the absence of evidence establishing that such benefits were available through his employer. We cannot reverse the trial court’s judgment on the basis of an argument that is presented for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal.... ”).

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur.

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