author: BRYAN, Judge. THOMAS, Judge,

text:
    VULCAN LANDS, INC. v. G. Thomas SURTEES, as commissioner of the Alabama Department of Revenue.
    2060607.
    Court of Civil Appeals of Alabama.
    Nov. 30, 2007.

      Matthew H. Lembke, Christopher R. Grissom, and John C. Neiman, Jr., of Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for appellant.
    Susan E. Kennedy and Sabrina L. Comer of Slate Kennedy, LLC, Montgomery, for appellee.
   BRYAN, Judge.

The plaintiff, Vulcan Lands, Inc. (“Vulcan Lands”), appeals from a summary judgment in favor of the defendant, G. Thomas Surtees, as commissioner of the Alabama Department of Revenue (“the Department”). We affirm in part, reverse in part, and remand.

Factual Background and Procedural History

In White v. Reynolds Metals Co., 558 So.2d 373 (Ala.1989), the Alabama Supreme Court held that Alabama’s franchise-tax scheme did not violate the Commerce Clause of the United States Constitution. However, in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999), the United States Supreme Court held that Alabama’s franchise-tax scheme did violate the Commerce Clause of the United States Constitution. In pertinent part, the United States Supreme Court stated:

“The basic question in this case is whether the franchise tax Alabama assesses on foreign corporations violates the Commerce Clause. We conclude that it does.
“Alabama requires each corporation doing business in that State to pay a franchise tax based upon the firm’s capital. A domestic firm, organized under the laws of Alabama, must pay tax in an amount equal to 1% of the par value of the firm’s stock. Ala. Const., Art. XII, § 229; Ala.Code § 40-14-40 (1993); App. to Pet. for Cert. 50a, 52a, 61a (Stipulated Facts). A foreign firm, organized under the laws of a State other than Alabama, must pay tax in an amount equal to 0.3% of the value of ‘the actual amount of capital employed’ in Alabama. Ala. Const., Art. XII, § 232; Ala.Code § 40-14-41(a) (Supp.1998). Alabama law grants domestic firms considerable leeway in controlling their own tax base and tax liability, as a firm may set its stock’s par value at a level well below its book or market value. App. to Pet. for Cert. 52a-53a (Stipulated Facts). Alabama law does not grant a foreign firm similar leeway to control its tax base, however, as the value of the ‘actual’ capital upon which Alabama calculates the foreign franchise tax includes ■not only the value of capital stock but also other accounting items (e.g., long-term debt, surplus), the value of which depends upon the firm’s financial status. Id., at 53a-54a; Ala.Code §§ 40-14-41(b)(1) — (5), (c) (Supp.1998).
“... [W]e conclude that this Court’s Commerce Clause precedent requires us to hold Alabama’s franchise tax unconstitutional. Alabama law defines a domestic corporation’s tax base as including only one item — the par value of capital stock — which the corporation may set at whatever level it chooses. A foreign corporation’s tax base, on the other hand, contains many additional balance sheet items that are valued in accordance with generally accepted accounting principles, rather than by arbitrary assignment by the corporation. Accordingly, as the State has admitted, Alabama law gives domestic corporations the ability to reduce their franchise tax liability simply by reducing the par value of their stock, while it denies foreign corporations that same ability. App. to Pet. for Cert. 52a-53a (Stipulated Facts). And no one claims that the different tax rates for foreign and domestic corporations offset the difference in the tax base. The tax therefore facially discriminates against interstate commerce and is unconstitutional unless the State can offer a sufficient justification for it. Cf. Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) (state tax scheme requiring shareholders in out-of-state corporations to pay tax on a higher percentage of share value than shareholders of corporations operating solely within the State facially discriminated in violation of the Commerce Clause). This discrimination is borne out in practice, as the record, undisputed here, shows that the average domestic corporation pays only one-fifth the franchise tax it would pay if it were treated as a foreign corporation. See App. to Pet. for Cert. 36a (plaintiffs’ statement of facts); Mem. Op. 21a, and n. 7 (adopting plaintiffs’ statement of facts).
“The State cannot justify this discrimination on the ground that the foreign franchise tax is a ‘complementary’ or ‘compensatory’ tax that offsets the tax burden that the domestic shares tax imposes upon domestic corporations. E.g., Henneford v. Silas Mason Co., 300 U.S. 577 (1937) (upholding a facially discriminatory use tax as ‘complementary’ to a domestic sales tax). Our cases hold that a discriminatory tax cannot be upheld as ‘compensatory’ unless the State proves that the special burden that the franchise tax imposes upon foreign corporations is ‘roughly ... approximate’ to the special burden on domestic corporations, and that the taxes are similar enough ‘in substance’ to serve as ‘mutually exclusive’ proxies for one another. Oregon Waste Systems[, Inc. v. Department of Envt’l Quality ], 511 U.S. [93] at 103 [ (1994) ]; accord, Fulton, supra, at 332-333.
“In this case, however, the relevant tax burdens are not ‘roughly approximate.’ See App. to Pet. for Cert. 36a-37a (plaintiffs’ statement of facts, showing that the foreign franchise tax burden far exceeds the domestic franchise tax and the domestic shares tax combined); Mem. Op. 21a, n. 7 (adopting plaintiffs’ statement of facts); cf. [South Central Bell Telephone Co. v. State,] 711 So.2d [1005] at 1011 [ (Ala.1998) ] (See, J., dissenting) (in the face of the State’s ‘indefinite assertion,’ plaintiffs offered ‘substantial evidence ... that the foreign franchise tax exceeds any intrastate burden’ imposed through the higher franchise tax rate and the domestic shares tax). And the State has made no effort to persuade this Court otherwise.
“Nor are the two tax burdens similar in substance. Alabama imposes its foreign franchise tax upon a foreign firm’s decision to do business in the State; Alabama imposes its domestic shares tax upon the ownership of a certain form of property, namely, shares in domestic corporations. Compare Ala.Code § 40-14 — 41 with § 40-14-70 (1993 and Supp. 1998). No one has explained to us how the one could be seen as a ‘proxy’ for the other.
“For these reasons, the judgment of the Alabama Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

526 U.S. at 162-71, 119 S.Ct. 1180.

After the United States Supreme Court remanded South Central Bell Telephone Co. v. Alabama to the Alabama Supreme Court, the Alabama Supreme Court issued an interim order in that case in which it stated, in pertinent part:

“The question remaining for this Court’s determination is what remedy, if any, should be fashioned.
“Harper [v. Virginia Department of Taxation, 509 U.S. 86 (1993),] makes it clear that when a tax is ruled unconstitutional, and that ruling is applied retroactively, a State must give a remedy that comports with Federal due-process principles. Harper, 509 U.S. at 100, 113 S.Ct. 2510 (citing American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 181, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990)). These principles of due process are found in a line of cases that begin with McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), and its companion case American Trucking Ass’ns, Inc. The McKesson case allows a State to comport with due process by:
“1) giving a taxpayer a refund;
“2) collecting back taxes from the favored class;
“3) combining aspects of these first two options;
“4) barring a refund to a taxpayer that did not follow a state procedural law in seeking the refund; or
“5) refusing to give a remedy, in the rare case in which the State relied on now overturned precedent and the State now faces an extreme hardship if it must give a remedy.”

South Cent. Bell Tel. Co. v. State, 789 So.2d 147, 148-49 (Ala.2000) (footnotes omitted). The Alabama Supreme Court then remanded the action to the trial court for it to receive evidence regarding what remedy, if any, should be fashioned. However, that action was settled before the trial court determined what remedy, if any, should be fashioned.

On March 15, 1999, eight days before the United States Supreme Court delivered its decision in South Central Bell Telephone Co. v. Alabama, Vulcan Lands, a corporation incorporated under the laws of the State of New Jersey, paid the Department $29,890 in franchise tax. On August 31, 1999, approximately five months after the United States Supreme Court delivered its decision in South Central Bell Telephone Co. v. Alabama, Vulcan Lands voluntarily paid an additional $371 in franchise tax to the Department.

On August 28, 2000, Vulcan Lands, on the basis of the holding of the United States Supreme Court in South Central Bell Telephone Co. v. Alabama, petitioned the Department for a refund of the $30,261 in franchise tax Vulcan Lands had paid during 1999. The Department did not respond to Vulcan Lands’ petition within six months. Consequently, pursuant to § 40-2A-7(e)(3), Ala.Code 1975, the petition of Vulcan Lands was deemed denied.

Vulcan Lands appealed from the denial of its petition to the Montgomery Circuit Court on April 16, 2001. After conducting discovery, Vulcan Lands and the Department filed cross-motions for a summary judgment. On March 12, 2007, the trial court entered a judgment granting the summary-judgment motion filed by the Department and denying the one filed by Vulcan Lands. That judgment stated:

“This cause having come before the Court on Cross Motions for Summary Judgment, the same having been heard and considered, it is hereby ORDERED, ADJUDGED AND DECREED that the [Department’s] Motion for Summary Judgment is GRANTED and [Vulcan Lands’] Motion for Summary Judgment is DENIED.
“(Vulcan Lands] filed this action with this Court seeking a tax refund of its 1999 foreign franchise tax. The unconstitutionality of Alabama’s franchise tax scheme is well settled. South Central Bell Telephone Co. v. Alabama, 526 U.S. 160 (1999). As the Alabama Supreme Court directed, this Court is now charged with determining what remedy, if any, is due this taxpayer. South Central Bell Telephone Co. v. State, 789 So.2d 147, 148 (Ala.2000). Further, it is well established that the Taxpayer bears the burden of proving that it suffered discrimination because of the unconstitutional franchise tax scheme, that is, the Taxpayer bears the burden of proving that it was injured. Gregg Dyeing Co. v. Query, 286 U.S. 472, 481-82 (1932).
“A taxpayer’s injury, that is, its refund amount, is the difference between what it actually paid and what a similarly situated domestic competitor would have paid. As the United States Supreme Court noted in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), ‘the State may cure the invalidity of the [unconstitutional tax] by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received.’ 496 U.S. at 40-41.
“In this action, there are no genuine issues of material fact, and the [Department] is entitled to judgment as a matter of law. Competitive injury is the basis of a Commerce Clause violation. If a company has no competition, and specifically no in-state competition, it cannot prove harm. Thus a taxpayer cannot prove economic damage from its status of being ‘disfavored’ without the presence of a ‘favored’ competitor, and that favored competitor’s existence must be actual, that is, not speculative. Gregg Dyeing Co. v. Query, 286 U.S. 472, 481 (1932). ‘Hence, the salient feature of the position petitioner “should have occupied” absent any Commerce Clause violation is its equivalence to the position actually occupied by petitioner’s favored competitors.’ McKesson, 496 U.S. at 42.
“Under the facts presented in this case, [Vulcan Lands] offered no specific evidence of a domestic competitor, and consequently there is no injury and therefore no refund due. Furthermore, the [Department] offered undisputed evidence that [Vulcan Lands] is not a normal competitive entity. [Vulcan Lands] is merely a holding company and is an entity that was formed for the administrative efficiency of the group, and it is insulated from the normal competitive pressures by virtue of its relationship with its parent company. [Vulcan Lands’] corporate representative testified to the same. ([The Department’s] Brief in Support of Motion for Summary Judgment, Exhibit B, Reese deposition, pp. 14-15, 20-22, and 121-22.)
“[Vulcan Lands] has not carried its burden of proving that it had domestic competition such that it was discriminated against or disfavored by the tax. [Vulcan Lands] has not suffered any injury in this case. ‘[I]n the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference.... ’ General Motors Corp. v. Tracy, 519 U.S. 278, 300 (1997).”

Vulcan Lands then timely appealed to this court.

Standard of Review

‘We review a summary judgment de novo.’ ” Bradley v. Miller, 878 So.2d 262, 266 (Ala.2003) (quoting Potter v. First Real Estate Co., 844 So.2d 540, 545 (Ala.2002)).

Analysis

Vulcan Lands argues that the trial court erred in granting the summary-judgment motion of the Department because, Vulcan Lands says, the premise upon which the trial court based that conclusion, i.e., that Vulcan Lands was required to prove that it was in competition with a domestic corporation who was favored by Alabama’s franchise-tax scheme in order for Vulcan Lands to establish its right to a refund of the $30,261 in franchise taxes it paid for 1999, was erroneous.

The trial court cited Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S.Ct. 631, 76 L.Ed. 1232 (1932), as authority for its conclusion that Vulcan Lands had to prove that it was in competition with a domestic corporation and, therefore, suffered discrimination as a result of Alabama’s franchise-tax scheme in order to establish its right to a refund. However, in Gregg Dyeing Co. v. Query, the United States Supreme Court was addressing the threshold issue whether a state tax violated the Commerce Clause rather than the issue whether the foreign taxpayer was entitled to a refund. The Court held in Gregg Dyeing Co. v. Query that, because the taxpayer had not established that it had suffered discrimination as a result of the state tax, it had not proved that the state tax violated the Commerce Clause. Because the taxpayer had not proved that it had suffered discrimination as a result of the state tax, the Court did not reach the issue whether the taxpayer was entitled to a refund.

On the other hand, in the case now before us, the threshold issue whether Alabama’s franchise-tax scheme violates the Commerce Clause had already been decided by the United States Supreme Court in South Central Bell Telephone Co. v. Alabama before Vulcan Lands sought a refund. In that case, the United States Supreme Court held that Alabama’s franchise-tax scheme violated the Commerce Clause because it discriminated against all foreign corporations doing business in Alabama by requiring them to include in them tax base balance-sheet items “that are valued in accordance with generally accepted accounting principles, rather than by arbitrary assignment by the corporation,” whereas it required domestic corporations to include in their tax base “only one item — the par value of capital stock— which the corporation may set at whatever level it chooses.” 526 U.S. at 169, 119 S.Ct. 1180. Thus, it has already been established, as a matter of law, that Alabama’s franchise-tax scheme discriminated against Vulcan Lands. Therefore, the case now before us is distinguishable from Gregg Dyeing Co. v. Query.

The trial court also used a quote from General Motors Corp. v. Tracy, 519 U.S. 278, 117 S.Ct. 811, 136 L.Ed.2d 761 (1997), to imply that Vulcan Lands was required to prove that it had a domestic competitor who was favored by Alabama’s franchise-tax scheme in order to establish that it was entitled to a refund. However, in General Motors Corp. v. Tracy, like in Gregg Dyeing Co. v. Query, the United States Supreme Court was addressing the threshold issue whether a state tax violated the Commerce Clause rather than the issue whether the taxpayer was entitled to a refund. Moreover, as in Gregg Dyeing Co. v. Query, the United States Supreme Court did not reach the issue whether the taxpayer was entitled to a refund in General Motors Corp. v. Tracy because it concluded that the state tax did not violate the Commerce Clause. Therefore, the quote from General Motors Corp. v. Tracy does not support the trial court’s conclusion that Vulcan Lands was required to prove that it had a competitor who was favored by Alabama’s franchise-tax scheme in order to establish its right to a refund.

The tidal court also used two quotes from McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, Department of Business Regulation of Florida, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), to support its conclusion that Vulcan Lands could not establish its right to a refund unless it proved that it had at least one domestic competitor who was favored by Alabama’s franchise-tax scheme. However, those two quotes do not support the trial court’s conclusion because the situation addressed by the United States Supreme Court in McKesson Corp. v. Division of Alcoholic Beverages & Tobacco is distinguishable from the situation involved in the case now before us. In McKesson, the Court was addressing a Florida liquor tax that was only paid by a subset of the entities doing business in Florida, i.e., wholesale distributors of liquor products. The excise tax discriminated against wholesale distributors whose liquor products were not manufactured from crops commonly grown in Florida by requiring them to pay higher tax rates than wholesale distributors whose liquor products were manufactured from crops commonly grown in Florida. Consequently, the United States Supreme Court stated in McKesson Corp. v. Division of Alcoholic Beverages & Tobacco that the refund the State of Florida owed the wholesale distributor who had been discriminated against was the difference between the tax it had paid and the tax it would have been assessed were it extended the same rate reductions as the wholesale distributors who were favored by Florida’s liquor-excise-tax scheme, which, because that scheme only affected one subset of the entities doing business in Florida, happened to be the entities in direct competition with the wholesale distributor who was discriminated against.

However, in South Central Bell Telephone Co. v. Alabama, the United States Supreme Court held that Alabama’s franchise-tax scheme discriminated against all foreign corporations because it required them to pay franchise tax based on a less favorable tax basis than all domestic corporations. Therefore, in the case now before us, unlike in McKesson Corp. v. Divi sion of Alcoholic Beverages & Tobacco, the taxpayers who are favored by the discriminatory state tax scheme are all domestic corporations and the taxpayers who are disfavored are all foreign corporations. Consequently, because the situation in McKesson Corp. v. Division of Alcoholic Beverages & Tobacco is distinguishable from the situation in the case now before us, the quotes from McKesson Corp. v. Division of Alcoholic Beverages & Tobacco upon which the trial court relied do not constitute authority for the trial court’s conclusion that Vulcan Lands is required to prove that Alabama’s franchise-tax scheme favored a domestic corporation in direct competition with Vulcan Lands in order for it to establish its right to a refund.

We conclude that, because the holding of the United States Supreme Court in South Central Bell Telephone Co. v. Alabama established, as a matter of law, that Alabama’s franchise-tax scheme discriminated against Vulcan Lands, Vulcan Lands was not required to prove that it had a domestic competitor who was favored by Alabama’s franchise-tax scheme in order to establish its right to a refund. Therefore, the trial court erred in granting the Department’s summary-judgment motion on the ground that Vulcan Lands had failed to meet such an evidentiary burden. Accordingly, we reverse the trial court’s judgment insofar as it granted the Department’s summary-judgment motion.

Vulcan Lands also argues that the trial court erred in denying its summary-judgment motion because, Vulcan Lands says, it was entitled, as a matter of law, to a judgment awarding it a refund of the entire $30,261 in franchise taxes it paid for 1999. Although there are some contexts in which an appellate court will not review the propriety of the denial of a summary-judgment motion, e.g., Hill v. Cleveland, 929 So.2d 471, 477 (Ala.Civ.App.2005), we will review it in this instance because the appeal of Vulcan Lands falls within the rule announced by the Alabama Supreme Court in Lloyd Noland Foundation, Inc. v. City of Fairfield Healthcare Authority, 887 So.2d 258, 263 (Ala.2002) (“[An] appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b)[, Ala. R. Civ. P.,] summary judgment disposing of fewer than all claims) entitles the [appellant], for purposes of [an appellate court’s] review, to raise issues based upon the trial court’s adverse rulings, including the denial of [the appellant’s] summary-judgment motion. See Ala. R.App. P., 4(a)(1).”).

“When a State penalizes taxpayers for failure to remit their taxes in timely fashion, thus requiring them to pay first before obtaining review of the tax’s validity, federal due process principles long recognized by our cases require the State’s postdeprivation procedure to provide a ‘clear and certain remedy,’ [Atchison, Topeka & Santa Fe Ry. Co. v.] O’Connor, 223 U.S. [280] at 285 [ (1912) ], for the deprivation of tax moneys in an unconstitutional manner.”

McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. at 51, 110 S.Ct. 2238. As the Alabama Supreme Court noted in South Central Bell Telephone Co. v. State, a state may meet the requirements of due process in that situation by (1) giving the taxpayer a refund, (2) collecting back taxes from the favored class, (3) combining aspects of (1) and (2), (4) barring a refund to a taxpayer that did not follow a state procedural law in seeking a refund, or (5) refusing to give a remedy, in the rare case in which the state relied on now overturned precedent and the state now faces an extreme hardship if it must give a remedy. 789 So.2d at 148-49.

In the case now before us, it is undisputed that the Department has elected not to collect back taxes from the favored class and that Vulcan Lands has followed Alabama procedural law governing claims seeking refunds. Therefore, the United States Supreme Court’s holding in South Central Bell Telephone Co. v. Alabama required the Department either (1) to give Vulcan Lands a refund or (2) to prove that the Department relied on now overturned precedent and that the State now faces an extreme hardship if it must give Vulcan Lands a refund.

The Department’s first line of defense to Vulcan Lands’ summary-judgment motion was its contention that Vulcan Lands had failed to establish a prima facie case that it was entitled to a refund because it had failed prove an essential element of such a claim, i.e., that the franchise-tax scheme discriminated against Vulcan Lands by placing it at a competitive disadvantage compared to a domestic corporation with whom Vulcan Lands was in direct competition. The trial court appears to have based its denial of Vulcan Lands’ summary-judgment motion on that defense. Although we held above that this defense is not valid, we must also consider whether the trial court’s denying Vulcan Lands’ summary-judgment motion was warranted by the affirmative defenses asserted by the Department. See General Motors Corp. v. Stokes Chevrolet, Inc., 885 So.2d 119, 124 (Ala.2003) (“This Court may affirm a trial court’s judgment on ‘any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.’ ” (quoting Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1020 (Ala.2003))).

As one of its affirmative defenses to Vulcan Lands’ refund claim, the Department asserted that the State was entitled to refuse to give Vulcan Lands a remedy for its payment of taxes pursuant to Alabama’s unconstitutional franchise-tax scheme because, the Department said, it had relied on now overturned precedent and the State now faces an extreme hardship if it must give Vulcan Lands a refund. In support of this defense, the Department introduced substantial evidence tending to prove that the Alabama Supreme Court had held in White v. Reynolds Metals Co., 558 So.2d 373, that Alabama’s franchise-tax scheme did not violate the Commerce Clause; that the Alabama Supreme Court again held that Alabama’s franchise-tax scheme did not violate the Commerce Clause in South Central Bell Telephone Co. v. State, 711 So.2d 1005 (Ala.1998); and that no decision of the United States Supreme Court had held that Alabama’s franchise-tax scheme or any comparable state tax scheme violated the Commerce Clause before the United States Supreme Court decided South Central Bell Telephone Co. v. Alabama. The Department also introduced substantial evidence tending to prove that the State would incur an extreme financial hardship if it is required to refund the franchise taxes paid by all foreign taxpayers who had requested refunds. At the very least, this evidence established the existence of a genuine issue of material fact with respect to Vulcan Lands’ summary-judgment motion. Therefore, the trial court did not err in denying Vulcan Lands’ summary-judgment motion. See Blackmon v. Brazil, 895 So.2d 900, 904 (Ala.2004) (“ ‘Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999).’ ” (quoting Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003))). Therefore, the trial court did not err in denying Vulcan Lands’ summary-judgment motion.

In summary, we reverse the trial court’s judgment insofar as it granted the Department’s summary-judgment motion, we affirm the trial court’s judgment insofar as it denied Vulcan Lands’ summary-judgment motion, and we remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

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

THOMAS, J., concurs in the result, with writing, which MOORE, J., joins.

THOMAS, Judge,

concurring in the result.

I note that on remand both aspects of the Department’s affirmative defense present issues that must be determined by the trial court.

The first issue is a mixed question of law and fact, namely: whether the State of Alabama reasonably relied on White v. Reynolds Metals Co., 558 So.2d 373 (Ala.1989), cert. denied 496 U.S. 912, 110 S.Ct. 2602, 110 L.Ed.2d 282 (1990), to conclude that its franchise-tax scheme did not violate the Commerce Clause when a trio of United States Supreme Court cases decided after White — Oregon Waste Systems Inc. v. Department of Environmental Quality of Oregon, 511 U.S. 93, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994); Associated Industries of Missouri v. Lohman, 511 U.S. 641, 114 S.Ct. 1815, 128 L.Ed.2d 639 (1994); and Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S.Ct. 848, 133 L.Ed.2d 796 (1996) — arguably made that reliance misplaced. The second issue is one of fact, namely: whether the State now faces an extreme hardship if it must give Vulcan Lands a refund.

MOORE, J., concurs.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte G. Thomas SURTEES, as commissioner of the Alabama Department of Revenue. and Ex parte Vulcan Lands, Inc. (In re Vulcan Lands, Inc. v. G. Thomas Surtees, as commissioner of the Alabama Department of Revenue).
    1070386 and 1070399.
    Supreme Court of Alabama.
    Sept. 26, 2008.

      Troy King, atty. gen., and Pamela B. Slate, Susan E. Kennedy, and Sabrina L. Comer of Slate Kennedy, LLC, Montgomery, for petitioner/eross-respondent G. Thomas Surtees, as commissioner of the Alabama Department of Revenue.
    Matthew H. Lembke, Christopher R. Grissom, and John C. Neiman, Jr., of
    Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for respondent/cross-petitioner Vulcan Lands, Inc.
    Todd A. Lard, Council on State Taxation, Washington, D.C., amicus curiae Council on State Taxation, in support of the respondent/cross-petitioner Vulcan Lands, Inc.
   WOODALL, Justice.

G. Thomas Surtees, as commissioner of the Alabama Department of Revenue (“the Department”), and Vulcan Lands, Inc. (“Vulcan”), sought certiorari review in ease nos. 1070386 and 1070399, respectively, of an opinion of the Court of Civil Appeals in Vulcan’s action seeking a refund of franchise taxes it paid pursuant to fprmer Ala. Code 1975, § 40-14-41. We affirm in case no. 1070386 and reverse and remand in case no. 1070399.

7. Background

This case is another chapter in the long-running dispute over franchise taxes assessed against foreign corporations under § 40-14-41. In White v. Reynolds Metals Co., 558 So.2d 373 (Ala.1989), this Court upheld § 40-14-41 against a claim that it violated the Commerce Clause of the United States Constitution. The United States Supreme Court denied certiorari review in that case. In South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999) (“SCB 7”), however, the Supreme Court struck down § 40-14-41 as violative of the Commerce Clause. The Court did not discuss remedies available to parties who have paid taxes under § 40-14^1, but merely-remanded the case “for further proceedings not inconsistent with [the] opinion.” 526 U.S. at 171, 119 S.Ct. 1180. In South Central Bell Telephone Co. v. State, 789 So.2d 147 (Ala.2000) (“SCB II”), this Court discussed “what remedy, if any, should be fashioned.” 789 So.2d at 148 (emphasis added). We remanded the case “for the parties to present evidence dealing with the issues” regarding an appropriate remedy. 789 So.2d at 151. On remand, before this Court could determine an appropriate remedy for the plaintiff taxpayers, the parties settled their dispute.

The opinion of the Court of Civil Appeals in this case sets forth the following facts:

“On March 15,1999, eight days before the United States Supreme Court delivered its decision in [SCB I ], Vulcan ..., a corporation incorporated under the laws of the State of New Jersey, paid the Department $29,890 in franchise tax. On August 31, 1999, approximately five months after the United States Supreme Court delivered its decision in [SCB I ], Vulcan ... voluntarily paid an additional $371 in franchise tax to the Department.
“On August 28, 2000, Vulcan ... petitioned the Department for a refund of the $30,261 in franchise tax Vulcan ... had paid during 1999. The Department did not respond to [Vulcan’s] petition within six months. Consequently, pursuant to § 40-2A-7(c)(3), Ala.Code 1975, the petition ... was deemed denied.
“Vulcan ... appealed from the denial of its petition to the Montgomery Circuit Court on April 16, 2001.”

Vulcan Lands, Inc. v. Surtees, 6 So.3d 1148, 1151-52 (Ala.Civ.App.2007).

In an interrogatory propounded to the Department, Vulcan asked: “State every reason, whether legal or factual, that the [Department] contends is a basis for affir-mance of the Department’s denial of Vulcan’s Foreign Franchise Tax Refund Petition filed in connection with Vulcan’s 1999 Alabama Foreign Franchise Tax Return.” In response, the Department stated (1) that the “outstanding claims of foreign franchise taxpayers ... total over $269,000,000”; (2) that it expected the evidence to show that the State was in a “unique position” to suffer a hardship “that would be inflicted on the infrastructure of the State from paying the outstanding claims”; and (3) that “the Defendant reasonably relied on published case law, [namely,] White v. Reynolds Metals Co., 558 So.2d 373 (Ala.1989),” in collecting the taxes.

The parties filed cross-motions for a summary judgment. In its motion, Vulcan argued that there was no genuine issue of material fact with respect to the availability of the defense that the State had relied on now overruled precedent and that the State faces extreme hardship if it is forced to refund the taxes (“the reliance-hardship defense”) and that the reliance-hardship defense was unavailable as a matter of law. The trial court granted the commissioner’s motion and denied Vulcan’s motion, holding that Vulcan had failed to show that it had been injured by disparate tax treatment and that, therefore, it was not entitled to any refund. More specifically, the trial court stated:

“ ‘[Vulcan] filed this action with this Court seeking a tax refund of its 1999 foreign franchise tax. The unconstitutionality of Alabama’s franchise tax scheme is well settled. South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999) - Further, it is well established that the Taxpayer bears the burden of proving that it suffered discrimination because of the unconstitutional franchise tax scheme, that is, the Taxpayer bears the burden of proving that it was injured. Gregg Dyeing Co. v. Query, 286 U.S. 472, 481-82 (1932).
“ ‘A taxpayer’s injury, that is, its refund amount, is the difference between what it actually paid and what a similarly situated domestic competitor would have paid. As the United States Supreme Court noted in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18 (1990), “the State may cure the invalidity of the [unconstitutional tax] by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received.” 496 U.S. at 40-41.
“ ‘... Competitive injury is the basis of a Commerce Clause violation. If a company has no competition, and specifically no in-state competition, it cannot prove harm. Thus a taxpayer cannot prove economic damage from its status of being “disfavored” without the presence of a “favored” competitor, and that favored competitor’s existence must be actual, that is, not speculative. Gregg Dyeing Co. v. Query, 286 U.S. 472, 481 (1932). “Hence, the salient feature of the position petitioner ‘should have occupied’ absent any Commerce Clause violation is its equivalence to the position actually occupied by petitioner’s favored competitors.” McKesson, 496 U.S. at 42.
“ ‘Under the facts presented in this case, [Vulcan] offered no specific evidence of a domestic competitor, and consequently there is no injury and therefore no refund due. Furthermore, the [Department] offered undisputed evidence that [Vulcan] is not a normal competitive entity. [Vulcan] is merely a holding company and is an entity that was formed for the administrative efficiency of the group, and it is insulated from the normal competitive pressures by virtue of its relationship with its parent company. [Vulcan’s] corporate representative testified to the same. ([The Department’s] Brief in Support of Motion for Summary Judgment, Exhibit B, Reese deposition, pp. 14-15, 20-22, and 121-22.)
‘[Vulcan] has not earned, its burden of proving that it had domestic competition such that it was discriminated against or disfavored by the tax. [Vulcan] has not suffered any injury in this case. “[I]n the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference.... ” General Motors Corp. v. Tracy, 519 U.S. 278, 300 (1997).’ ”

Surtees, 6 So.3d at 1152-53 (emphasis added). From that judgment, Vulcan appealed, contending that the trial court erred in granting the Department’s summary-judgment motion and in refusing to grant Vulcan’s motion as to the unavailability of the reliance-hardship defense.

On appeal, the Court of Civil Appeals reversed the summary judgment to the extent it had granted the Department’s summary-judgment motion. However, it rejected Vulcan’s argument that it was entitled to a summary judgment as to the Department’s reliance-hardship defense. In that connection, the court stated:

“[A] state may [redress an unconstitutional deprivation of tax payments] by (1) giving the taxpayer a refund, (2) collecting back taxes from the favored class, (3) combining aspects of (1) and (2), (4) barring a refund to a taxpayer that did not follow a state procedural law in seeking a refund, or (5) refusing to give a remedy, in the rare case in which the state relied on now overturned -precedent and the state now faces an extreme hardship if it must give a remedy....
“In the case now before us, it is undisputed that the Department has elected not to collect back taxes from the favored class and that Vulcan Lands has followed Alabama procedural law governing claims seeking refunds. Therefore, the United States Supreme Court’s holding in [SCB I ] required the Department either (1) to give Vulcan ... a refund or (2) to prove that the Department relied on now overturned precedent and that the State now faces an extreme hardship if it must give Vulcan ... a refund.
“As one of its affirmative defenses to [Vulcan’s] refund claim, the Department asserted that the State was entitled to refuse to give Vulcan ... a remedy for its payment of taxes pursuant to Alabama’s unconstitutional franchise-tax scheme because, the Department said, it had relied on now overturned precedent and the State now faces an extreme hardship if it must give Vulcan ... a refund. In support of this defense, the Department introduced substantial evidence tending to prove that the Alabama Supreme Court had held in White v. Reynolds Metals Co., 558 So.2d 373, that Alabama’s franchise-tax scheme did not violate the Commerce Clause; ... and that no decision of the United States Supreme Court had held that Alabama’s franchise-tax scheme or any comparable state tax scheme violated the Commerce Clause before the United States Supreme Court decided [SCB I ]. The Department also introduced substantial evidence tending to prove that the State would incur an extreme financial hardship if it is required to refund the franchise taxes paid by all foreign taxpayers who had requested refunds. At the very least, this evidence established the existence of a genuine issue of material fact with respect to [Vulcan’s] summary-judgment motion. Therefore, the trial court did not err in denying [Vulcan’s] summary-judgment motion.”

Surtees, 6 So.3d at 1155-56 (emphasis added).

Subsequently, both parties petitioned this Court for certiorari review. The Department, in case no. 1070386, asserts, among other things, that the opinion of the Court of Civil Appeals conflicts with a prior decision of the Supreme Court of the United States, namely, McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). Vulcan, in case no. 1070399, asserts, among other things, that the opinion presents a question of first impression in this Court, namely, whether the reliance-hardship defense is available, as a matter of law, to the Department. We granted the petitions and consolidated them for the purpose of writing one opinion.

II. Discussion

For ease of discussion, we will first address the availability of the reliance-hardship defense as presented in case no. 1070399.

A Case No. 1070399

The Court of Civil Appeals held that Vulcan was not entitled to a summary judgment as to the Department’s right to assert a reliance-hardship defense. More specifically, it concluded that there was substantial evidence creating a genuine issue of material fact on the issue whether this was that “rare case in which the state relied on now overturned precedent and the state now faces an extreme hardship if it must give a remedy.” Surtees, 6 So.3d at 1155 (emphasis added). Vulcan contends that the court erred as to this question of first impression.

The parties agree that, in any such “rare case,” the reliance-hardship defense is a two-pronged one and that both prongs must be satisfied. As for the first prong, the Department contends that it “reasonably relied on [overturned] precedent in administering the former franchise tax scheme.” Department’s reply brief, at 22 (emphasis added). Vulcan, however, contends that, by March 15, 1999, the date of its first 1999 franchise-tax payment, the Department had abandoned any reliance on such precedent. We agree.

In SCB I, the Court stated:

“Rather than [join issue with South Central Bell Telephone Company as to whether Alabama’s franchise-tax scheme complies with established Commerce Clause caselaw], the [Department] instead says, with ‘respect to the merits,’ that ‘the flaw in petitioners’ claim lies not in the application to Alabama’s corporate franchise tax of this Court’s recent negative Commerce Clause cases; the flaw lies rather in the negative Commerce Clause cases themselves.’ Brief of Respondents 3. The [Department] adds that the Court should ‘formally reconsider’ and ‘abandofn]’ its negative Commerce Clause jurisprudence.”

526 U.S. at 170-71, 119 S.Ct. 1180 (emphasis added). Thus, it is clear that on January 19, 1999, the date the case was argued in the United States Supreme Court, the Department was, in fact, no longer relying on the cases on which it now purports to have later “reasonably relied.” In other words, it was not relying on “overturned precedent” when it accepted Vulcan’s 1999 franchise-tax payments. Because the Department cannot satisfy the first prong of the reliance-hardship defense, the defense is inapplicable to Vulcan’s franchise-tax-refund claim as a matter of law. The Court of Civil Appeals erred, therefore, in holding that Vulcan was not entitled to a summary judgment on the reliance-hardship defense. To the extent that it so held, the judgment of the Court of Civil Appeals is reversed, and the case is remanded.

B. Case No. 1070386

According to the Department, the trial court correctly applied that portion of McKesson, which says that “the State may cure the invalidity of the [unconstitutional tax] by refunding to petitioner the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received.” 496 U.S. at 40, 110 S.Ct. 2238 (emphasis added). Seizing on McKesson’s use of the term “favored competitors,” the Department attempts to support the trial court’s holding that Vulcan failed to identify sufficiently a specific competitor for the purpose of proving that it suffered an injury.

The Department’s position is that “[a] taxpayer must stand in the place of the very domestic corporation it claims was advantaged by the tax in order to determine the extent, if any, to which it was disadvantaged as a foreign corporation.” Department’s brief, 38-39 (emphasis added). This position, as we understand it, is best illustrated by the following example posited by the Department:

“Consider a [foreign] corporation established by a group of partners of a law firm for the sole purpose of owning the building in which the law firm will do business. The corporation may own real property suitable for law firm operations, but it does not compete with [domestic] commercial real estate corporations that own property in which law firms could do business. In fact, like [Vulcan] here, it does not compete with any other corporation.”

Department’s reply brief, at 17 (emphasis added). Apparently, the foreign corporation in the Department’s example would be sufficiently similar to the domestic corporation only if both corporations were established by lawyers for the sole purpose of owning the building in which they practice law. The Department thus requires a foreign taxpayer to identify a specific domestic corporation that is its virtual mirror image as a prerequisite to a refund. In so doing, it misconstrues McKesson.

McKesson involved the remedy available to taxpayers that had paid taxes under a Florida liquor-excise-tax scheme that violated the Commerce Clause. The Florida state courts had correctly held the tax unconstitutional but had granted only prospective relief. 496 U.S. at 31, 110 S.Ct. 2238. The Court held that, “[i]f a State places a taxpayer under duress promptly to pay a tax when due and relegates him to a postpayment refund action in which he can challenge the tax’s legality, the Due Process Clause ... obligates the State to provide meaningful backward-looking relief to rectify any unconstitutional deprivations,” 496 U.S. at 31, 110 S.Ct. 2238 (footnote omitted), including, in some cases, a refund. 496 U.S. at 40-41, 110 S.Ct. 2238.

In its discussion, the Supreme Court, as the Department points out, often used the term “favored competitors.” However, there was no issue in McKesson regarding the existence of favored competitors. “It [was] undisputed that [they were the] manufacturers and distributors of [alcoholic] beverages [made from local products] which qualified] for preferential treatment under [the challenged] scheme.” Division of Alcoholic Beverages & Tobacco v. McKesson Corp., 524 So.2d 1000, 1008 (Fla.1988), rev’d on other grounds, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990). The Court used the phrase interchangeably with “favored distributors” throughout; once with “competitors distributing preferred local products,” 496 U.S. at 48, 110 S.Ct. 2238 (emphasis added); and once with “a category of distributors.” 496 U.S. at 42, 110 S.Ct. 2238 (emphasis added). There is no indication that the Supreme Court was using the term “competitors” in the talismanic sense urged by the Department. The Court merely had in view a category or class counterposed to the class to which the litigant-taxpayer belonged. Certainly, there is no indication that, by its use of the term “competitors,” the Court intended to confine the class of litigants receiving refunds, as the Department proposes, to those that could actually name certain domestic entities that mirrored them in corporate structure and operation.

Thus, although we do not necessarily agree with the rationale of the Court of Civil Appeals, that court’s opinion is not inconsistent with McKesson, and the Court did not err in reversing the summary judgment for the Department, which denied a refund solely on the basis of the “mirror-image rule” as propounded by the Department and applied by the trial court. To the extent that it did so, the judgment of the Court of Civil Appeals is affirmed.

III. Conclusion

In conclusion, we reverse the judgment of the Court of Civil Appeals as to the issue we have addressed in Part II.A (case no. 1070399). We affirm the judgment as to the issue we have addressed in Part II.B (case no. 1070386). Thus, we have confined our consideration to the only two issues actually addressed by the Court of Civil Appeals. Although the parties’ briefs raise numerous additional arguments, those arguments involve legal — as well as factual — issues heretofore unaddressed by any court. Chief among those issues is the amount affranchise taxes Vulcan actually would have paid in 1999 had it been assessed as a domestic corporation. See SCB I, 526 U.S. at 169, 119 S.Ct. 1180 (“the record ... shows that the average domestic corporation pays ... one-fifth the franchise tax it would pay if it were treated as a foreign corporation”); McKesson, 496 U.S. at 49 n. 33, 110 S.Ct. 2238 (where a refund of taxes collected in violation of the Commerce Clause is mandated, “the State’s obligation under the Due Process Clause ... extends only to refunding the excess taxes collected under the [discriminatory tax scheme]”). Consistent with our approach in these franchise-tax cases to proceed incrementally, see SCB II, 789 So.2d at 151 (articulating specific issues to be addressed on remand and contemplating further briefing and arguments of the parties), we deem it imprudent to be the first court to address such issues. Consequently, this case is remanded to the Court of Civil Appeals for it to remand the case to the trial court for further proceedings consistent with this opinion.

1070386 — AFFIRMED.

1070399 — REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

      . While this petition was pending, Tim Russell replaced G. Thomas Surtees as the commissioner of the Alabama Department of Revenue. Rule 43(b), Ala. R.App. P., provides: “When a public officer is a party to an appeal or other proceeding in the appellate court in that officer’s official capacity, and during its pendency dies, resigns, or otherwise ceases to hold office, the action shall not abate and the public officer’s successor is automatically substituted as a party.”

      . The taxpayer in McKesson was a "licensed wholesale distributor of alcoholic beverages whose products did not qualify for [special] rate reductions,” 496 U.S. at 23, 110 S.Ct. 2238, "for certain specified citrus, grape, and sugarcane products, all of which are commonly grown in Florida and used in alcoholic beverages produced there.” Id.


author: BRYAN, Judge.

text:
    VULCAN LANDS, INC. v. G. Thomas SURTEES, as commissioner of the Alabama Department of Revenue.
    2060607.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2008.
    Matthew H. Lembke, Christopher R. Grissom, and John C. Neiman, Jr., of Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for appellant.
    Susan E. Kennedy and Sabrina L. Comer of Slate Kennedy, LLC, Montgomery, for appellee.
   After Remand from the Alabama Supreme Court

BRYAN, Judge.

A portion of the prior judgment of this court has been reversed, and the cause has been remanded by the Supreme Court of Alabama. Ex parte Vulcan Lands, Inc., 6 So.3d 1157 (Ala.2008). On remand to this court and in compliance with the supreme court’s opinion, we reverse the trial court’s order denying Vulcan Lands’ summary-judgment motion on the reliance-hardship defense and remand the cause to the trial court for further proceedings consistent with the supreme court’s opinion.

REVERSED AND REMANDED.

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


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    James Joel CURVIN v. Vickie Lynn CURVIN.
    2061020.
    Court of Civil Appeals of Alabama.
    Feb. 15, 2008.
    Certiorari Denied Oct. 24, 2008 Alabama Supreme Court 1070738.

      Melvin Hasting, Cullman, for appellant.
    S. Wayne Fuller, Cullman, for appellee.
   THOMPSON, Presiding Judge.

James Joel Curvin (“the father”) and Vickie Lynn Curvin (“the mother”) were married on January 31, 2000. The parties have three children. On November 8, 2004, the mother filed a complaint seeking, among other things, a divorce and custody of the parties’ children. On that same date, the mother filed a motion for immediate temporary custody of the children and exclusive use of the marital home. The trial court awarded the mother pendente lite custody of the children and set the matter for a hearing. On November 9, 2004, the father answered and filed a counterclaim for a divorce in which he requested custody of the parties’ children and an equitable division of the parties’ marital property.

On December 22, 2004, the trial court entered a judgment in which it divorced the parties, awarded custody of the children to the mother, and fashioned a property division. The father subsequently filed a motion to vacate the trial court’s December 22, 2004, judgment. On March 22, 2005, the trial court granted the father’s motion to vacate, set aside its December 22, 2004, judgment, ordered that custody of the children remain with the mother pending a final hearing, awarded the mother exclusive use and possession of the marital home, and ordered the father to pay child support pursuant to the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

On March 31, 2005, the mother filed a motion for an immediate order in which she requested, among other things, that the trial court specify the amount of child support the father should pay pursuant to the child-support guidelines and order the father to make the mortgage payments on the marital home. On June 8, 2005, the trial court entered a temporary order requiring the father to pay $930 per month in child support. The trial court amended that order on June 16, 2005, to also require the father to make the mortgage payments on the marital home pending the resolution of the divorce action.

On May 31, 2006, the father filed a motion asking the trial judge to recuse himself from the case. In his motion, the father alleged, among other things, that Judge Don L. Hardeman, the trial judge assigned to the case, should be disqualified because he had received a campaign contribution in the amount of $2,000 from the law firm representing the mother. The trial court denied the motion to recuse. On June 6, 2006, the father filed a petition for a writ of mandamus in this court challenging the trial court’s denial of the motion to recuse. This court denied the father’s petition for a writ of mandamus.

On July 21, 2006, the mother filed a motion requesting that the trial court enter an order restraining the father from removing or attempting to remove any money from his retirement account until the trial court entered its final judgment in the case. The trial court granted the mother’s motion and entered an order restraining the father from “removing, transferring, or disposing of the retirement account monies pending trial.”

Following an ore tenus hearing, the trial court entered a judgment on January 16, 2007, divorcing the parties, awarding the mother primary physical custody of the children, and fashioning a property division. The father subsequently filed a post-judgment motion; that motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The father timely appealed.

At the outset, we note that when a trial court receives ore tenus evidence its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the tidal court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The evidence presented to the trial court revealed the following pertinent facts. At the time of the final hearing, the father was 36 years old and the mother was 34 years old. This is the second time that the parties have been married to one another. The parties’ first marriage began in 1993 and ended in divorce in 1997.

The father is employed as a truck driver. Financial statements generated by the father’s employer were admitted into evidence at trial and revealed that the father earned a gross income of $45,159.30 in 2004, $37,613.84 in 2005, and $37,084.59 as of December 3, 2006. The father testified that he had a retirement account with his employer with an estimated value of $40,000.

The father testified that he lives with his parents because he cannot afford to live on his own. The father explained that he paid his parents approximately $300 a month as rent. The father testified that he also paid a portion of his parents’ utility expenses; the record does not indicate the amount the father paid for the utilities. The father testified that he spent approximately $75 to $80 on groceries for himself, in addition to the food provided to him by his parents. It is unclear from the record if the father spent that amount on groceries on a weekly or monthly basis.

The father testified that he had two bank accounts at the time of trial, which had a combined balance of approximately $425. He also testified that two months after he and the mother separated, he had withdrawn $4,000 from his checking account to pay bills. The father stated that he has no credit cards in his name.

The father explained that he paid child support and the mortgage payments on the parties’ marital home until he “ran out of money.” The father testified that he did not pay child support from November 2004 to early August 2005. According to the father, the mother declined to accept child support that he attempted to pay her. The father testified that he made payments on the parties’ marital home until October 2005, when he filed for bankruptcy. The father explained that he has no money with which to make payments to the mother. The father testified that he had received a final bankruptcy order; the record does not contain a copy of that order.

At one point during the parties’ marriage, the parties owned three vehicles: a 2002 Kia Rio automobile, a 1997 Chevrolet pick-up truck, and a 1976 Chevrolet automobile. The father testified that both the 2002 Kia Rio and the 1997 Chevrolet pickup truck had been repossessed. The father explained that he sold the 1976 Chevrolet automobile and that, at the time of trial, he was driving a vehicle owned by his father. The mother does not own a vehicle.

The mother is employed at an Arby’s fast-food restaurant. The mother testified that as of the date of the final hearing she had earned $5,178.35 in gross income in 2006. The mother explained that she worked part-time because she could only work when the children were in school. The mother testified that one of the parties’ children suffers from attention deficit disorder and a pervasive developmental disorder that requires special attention. The mother testified that, at the time of trial, she had one bank account with a balance of approximately $80. The mother stated that she has no credit cards in her name and that she has no savings account.

The mother testified that the parties’ marital residence was a mobile home that had been conveyed to her as a part of the property settlement from the parties’ 1997 divorce and that she owned the land on which the mobile home was located. The mother testified that the mobile home had an appraised value of $27,500 but that she owed approximately $26,000 on the mobile home. The mother stated that the monthly mortgage payment on the mobile home is $253.37. According to the mother, the father had not paid the mortgage payment on the mobile home in the 14 months preceding the trial and, she said, he had not paid child support from December 2004 to August 2005.

The mother claimed that the father had damaged the mobile home on two different occasions. The mother explained that the father had kicked in the front door of the mobile home to gain access to his belongings when she was not in the home. According to the mother, the father repaired the front door following that incident. The mother testified that the father had kicked in the same door a second time but that he did not repair the door after the second incident. The mother submitted into evidence at trial a copy of a bill for the repair of the door indicating that she paid $409.59 to have the door repaired.

In its January 16, 2007, divorce judgment, the trial court awarded the mother primary physical custody of the parties’ children and ordered the father to pay child support in the amount of $905 each month. The trial court found that the father owed $5,120 in a child-support ar-rearage, and it ordered the father to pay $100 per month toward the satisfaction of the arrearage. The trial court awarded the mother the marital home. The trial court found the father in arrears to the mother for payments the father had failed to pay on the marital residence from November 2005 to December 2006, and it ordered the father to pay $3,293.81 to the mother based on that arrearage. The trial court further ordered the father to pay $409.59 for the repair of the door to the marital residence, and it ordered the father to pay $1,500 toward the mother’s attorney fees. The trial court awarded the father his retirement account, subject to a lien “until such time as the [father’s] child-support arrearage and mobile-home payments have been paid in full.”

On appeal, the father contends that the trial court exceeded its discretion when it denied his motion to recuse. In response, the mother contends on appeal that the issue is barred by the doctrine of res judicata based on this court’s denial of the father’s earlier petition for a writ of mandamus addressing the same issue.

“Alabama law is clear: ‘ “[T]he denial [of a petition for a writ of mandamus] does not operate as a binding decision on the merits.” ’ Ex parte Shelton, 814 So.2d 251, 255 (Ala.2001) (quoting R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994)). ‘[B]ecause of the extraordinary nature of a writ of mandamus, the denial of relief by mandamus does not have res judicata effect.’ Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala.2000); see also Bedsole v. Goodloe, 912 So.2d 508, 516 n. 4 (Ala.2005) (noting ‘that “without ordering an answer and briefs and without issuing an opinion, [the denial of a petition for the writ of mandamus] cannot have res judicata effect on subsequent proceedings in light of the extraordinary nature of the writ of mandamus” ’ (quoting R.E. Chills, 641 So.2d at 229) (alterations in original)).”

EB Inv., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 510 (Ala.2005). Therefore, we will address the father’s argument as to this issue.

“A trial judge’s ruling on a motion to recuse is reviewed to determine whether the judge exceeded his or her discretion. See Borders v. City of Huntsville, 875 So.2d 1168, 1176 (Ala.2003). The necessity for recusal is evaluated by the ‘totality of the facts’ and circumstances in each case. [Ex parte] Dothan Pers. Bd., 831 So.2d [1,] 2 [ (Ala.2002) ]. The test is whether ‘ “facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge.” ’ In re Sheffield, 465 So.2d 350, 355-56 (Ala.1984) (quoting Acromag-Viking v. Blalock, 420 So.2d 60, 61 (Ala.1982)).”

Ex parte George, 962 So.2d 789, 791 (Ala.2006). “The burden of proof is on the party seeking recusal. Prejudice on the part of a judge is not presumed.” Ex parte Cotton, 638 So.2d 870, 872 (Ala.1994), abrogated on other grounds, Ex parte Crawford, 686 So.2d 196 (Ala.1996).

In his motion to recuse, the father alleged that the trial judge had accepted a campaign contribution in the amount of $2,000 from the firm that employed the mother’s counsel. The father further alleged that counsel representing him at trial was a candidate against the trial judge in an upcoming election. The father surmised in his motion that “based on the foregoing, the impartiality [of the trial judge] might reasonably be questioned. Furthermore, [the trial judge] may have a personal bias or prejudice concerning the [father’s] counsel.”

Canon 3.C.(1), Alabama Canons of Judicial Ethics, states, in pertinent part:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

In Ex parte Melof, 553 So.2d 554 (Ala.1989), abrogated on other grounds by Ex parte Crawford, 686 So.2d 196 (Ala.1996), our supreme court held:

“ ‘Recusal is required ... when the facts are such that it is reasonable for a party, for members of the public, or for counsel to question the impartiality of a trial judge.’ (Citations omitted.) Bryars v. Bryars, 485 So.2d 1187 (Ala.Civ.App.1986). However, a mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge. Id. at 1189; Ex parte Balogun, 516 So.2d 606, 609 (Ala.1987); Medical Arts Clinic v. Henry, 484 So.2d 385 (Ala.1986); Ross v. Luton, 456 So.2d 249 (Ala.1984). The test is whether a ‘ “person of ordinary prudence in the judge’s position knowing all of the facts known to the judge find[s] that there is a reasonable basis for questioning the judge’s impartiality.” ’ (emphasis added). In re Sheffield, 465 So.2d 350, 356 (Ala.1984), quoting Thode, The Code of Judicial Conduct-The First Five Years in the Courts, 1977 Utah L.Rev. 395, 402.”

Ex parte Melof, 553 So.2d at 557.

The father did not meet his burden of proving the existence of bias or prejudice on the part of the trial judge in this case. The father’s motion to recuse consists of mere supposition that the trial judge “may” have a personal bias or prejudice concerning counsel for the father. In his motion to recuse, the father does not refer to any specific instances demonstrating bias or prejudice on the part of the trial court. The father’s mere accusations are unsupported by substantial fact. See Ex parte Melof, supra. “Canon 3C(1) does not require disqualification upon mere allegations of bias that are not supported by substantial fact; and the party seeking recusal must come forward with evidence establishing the existence of bias or prejudice.” Blankenship v. City of Hoover, 590 So.2d 245, 251 (Ala.1991).

In Ex parte McLeod, 725 So.2d 271 (Ala.1998), our supreme court granted certiora-ri review to address “whether a new trial is required when a trial judge fails to disclose to a party before her court a campaign contribution made to her by the opposing party.” 725 So.2d at 272. In Ex parte McLeod, one of the defendants contributed $200 to the trial judge’s campaign for election to a state appellate court. The trial judge reported the contribution to the secretary of state pursuant to the Fair Campaign Practices Act, §§ 17-22A-1 to -23, Ala.Code 1975. Seven months after the trial court reported the contribution, it entered the judgment in the case. After the trial court entered its judgment, the plaintiff filed a postjudgment motion based, in part, on the campaign contribution made by one of the defendants while the case was pending. The trial court denied the postjudgment motion.

On review, our supreme court held that a new trial was not required as a result of the trial judge’s failure to disclose to the plaintiff the campaign contribution made to the trial judge by one of the defendants. In so holding, the supreme court recognized that the trial judge’s failure to directly disclose to the plaintiff the contribution in no way deprived the plaintiff of the opportunity to discover any possible campaign contributions made by the defendant. 725 So.2d at 272-73. Our supreme court explained:

“If a judge failed altogether to publicly disclose the contributions she had received, or if she actively concealed them, then an appearance of impropriety would exist. But the judge in this case publicly reported the contribution and in no way attempted to cover up the fact that [the defendant] had made a contribution to her.”

Ex parte McLeod, 725 So.2d at 273.

In Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), the husband in a pending divorce action moved the trial judge to recuse himself because the husband’s attorney had been a political opponent of the trial judge at the time the trial judge had last run for office. Further, the husband had served as his attorney’s campaign manager during that election. Reach, 378 So.2d at 1117. The trial court denied the motion to recuse and the husband appealed. On appeal, this court stated that Canon 3.C.(1) provides “that a judge should recuse himself in a proceeding in which his impartiality might reasonably be questioned in instances where he has personal bias or prejudice concerning a party.” Reach, 378 So.2d at 1117. However, “[s]uch prejudice is not presumed.” Id. Moreover, “it is incumbent on the moving party to prove that the bias is of a personal nature.” Id.

In the instant case, the father alleges in his motion to recuse the existence of a campaign contribution to the trial judge from counsel for the mother’s firm, but the father does not go further to set forth evidence of bias based on the campaign contribution. Likewise, the father alleges that his attorney’s candidacy against the trial judge renders the trial judge impartial, but he fails to set forth evidence of bias based on his attorney’s candidacy against the trial judge. Our review of the record does not reveal evidence of bias or prejudice on the part of the trial judge, or that the trial court attempted in any way to conceal the campaign contribution from the mother’s attorney. The record indicates that the trial court ruled in favor of the father when it granted his motion to vacate its December 22, 2004, divorce judgment. In light of the foregoing, the trial court’s denial of the father’s motion to recuse is due to be affirmed.

The father also purports to raise on appeal the issue whether § 12-24-1 and § 12-24-2, Ala.Code 1975, are enforceable and constitutional. Sections 12-24-1 and 12-24-2, respectively, address the recusal of a justice or judge on the basis of campaign contributions and the mandatory filing of disclosure statements concerning campaign contributions. The father does not present an argument addressing the merits of the issue on appeal. “Failure to argue an issue, with citation to applicable authority, is tantamount to a waiver of that issue on appeal.” Cain v. Howorth, 877 So.2d 566, 584 (Ala.2003) (citing Ex parte Riley, 464 So.2d 92 (Ala.1985)). Thus, we will not consider this issue on appeal.

The father further contends that the trial court exceeded its discretion when it entered its January 16, 2007, judgment. Specifically, the father challenges those portions of the trial court’s judgment that require him to pay a child-support arrear-age in the amount of $5,120 and to pay $1,500 toward the mother’s attorney fees.

The determination of a child-support arrearage and how any arrearage should be paid are matters left to the discretion of the trial court. Abel v. Abel, 824 So.2d 767, 768 (Ala.Civ.App.2001). Absent a showing that the trial court exceeded its discretion, the trial court’s judgment will not be reversed. Id.

The father admitted at trial that he had failed to pay court-ordered child support from November 2004 to August 2005. However, the father contends on appeal that he paid over $1,800 in child support in June 2005 and that, therefore, he does not owe $5,120 in child-support arrearage as determined by the trial court. In his brief on appeal, the father refers to an exhibit attached as an appendix to his brief showing two payments made in June 2005 totaling $1,858. It is well settled that a record on appeal cannot be supplemented or enlarged by the attachment of an appendix to an appellant’s brief. Goree v. Shirley, 765 So.2d 661, 662 (Ala.Civ.App.2000); TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). Because we are limited in our review to the record on appeal and because the record indicates that the father failed to pay child support for approximately 10 months, we cannot say that the trial court exceeded its discretion when it ordered the father to pay $5,120 in child-support arrearage.

The father challenges the trial court’s award of an attorney fee to the mother, arguing that the mother presented no evidence of the time her counsel expended representing her at trial.

“It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court. Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. Id.”

Walls v. Walls, 860 So.2d 352, 359 (Ala.Civ.App.2003). Further, “a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee.” Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996) (citing Taylor v. Taylor, 486 So.2d 1294 (Ala.Civ.App.1986)).

The evidence in this case indicates that the father’s monthly income exceeds the mother’s monthly income by approximately $3,000. Although the father testified that his funds were limited, the father presented evidence indicating that he had minimal monthly expenses. The mother, however, presented evidence indicating that she earned $423 a month and that her ability to earn income had diminished with the responsibility of caring for the children while they were not in school. Given the disparity in the parties’ respective incomes and the father’s ability to earn more income than the mother, the trial court could have concluded that an award of an attorney fee in favor of the mother was proper. Therefore, we cannot say that the trial court exceeded its discretion when it ordered the father to pay $1,500 toward the mother’s attorney fees.

The father also argues on appeal that the trial court erred when it placed a lien on his retirement account even though the parties had not been married for at least 10 years. See § 30 — 2—51(b)(1), Ala. Code 1975 (limiting the consideration of retirement benefits as part of spouse’s estate to situations in which the parties were married for at least 10 years). In its judgment, the trial court found as follows regarding the father’s retirement account:

“The [father] shall be vested with and the [mother] shall be divested of all right, title and interest in and to the [father’s] retirement account. A lien shall be placed against the [father’s] retirement account until such time as the [father’s] child-support arrearage and the mobile-home payments have been paid in full. In the event that the [father] removed any monies from his retirement account, the [father] will have to pay the arrearage for child support and the arrearage for the mobile-home payment from any proceeds that he receives from his retirement to the [mother].”

In support of his contention on appeal, the father cites only this court’s decision in Arnold v. Arnold, 977 So.2d 501 (Ala.Civ.App.2007). However, our decision in Arnold does not apply in this case. In Arnold, the trial court entered a judgment divorcing the husband and the wife and ordering, among other things, the husband to pay the wife $400 per month for one year. After the wife filed a postjudgment motion, the trial court amended its judgment to award the wife $750 a month for three years. The husband appealed and argued that the trial court had improperly considered his retirement benefits as a source of income when ordering him to pay alimony. 977 So.2d at 508. This court affirmed the judgment of the trial court on the basis that the record did not indicate that the trial court had considered the husband’s retirement benefits when it increased the wife’s periodic-alimony award. Arnold, 977 So.2d at 509.

In the instant case, we are asked to decide whether the trial court erred by placing a lien on the father’s retirement account. The father argues on appeal that § 30-2-51(b)(1), Ata.Code 1975, limits the consideration of retirement benefits as an asset subject to division to situations in which the parties were married for at least 10 years. Although the father is correct in his statement of the law and although the record clearly supports a conclusion that the parties were married for less than 10 years, the trial court’s judgment in this case did not award the mother a portion of the father’s retirement benefits. Rather, the judgment provided a method by which the trial court could enforce its earlier pendente lite orders requiring the father to pay child support and monthly mortgage payments on the marital home.

The father cites no caselaw in support of his contention that the trial court erred by placing a lien on his retirement benefits. Even though it is not the function of this court to perform an appellant’s legal research, McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992); Spradlin v. Spradlin, 601 So.2d 76, 78 (Ala.1992), our research reveals no caselaw in support of the father’s contention. Accordingly, we affirm as to this issue.

Finally, the father contends that the trial court exceeded its discretion by ordering him to reimburse the mother for unpaid mortgage payments in the amount of $3,293.81 after he had filed for bankruptcy. Specifically, the father argues that the bankruptcy discharge applied to the mortgage payments because those payments were dischargeable in bankruptcy. The record contains no documentary evidence pertaining to the father’s bankruptcy. However, the father and the mother both testified that the father had filed for bankruptcy in October 2005.

In Laminack v. Laminack, 675 So.2d 479, 481 (Ala.Civ.App.1996), this court stated:

“ ‘As a general rule, court ordered alimony, maintenance, and support are excepted from discharge in bankruptcy.’ Hudson v. Hudson, 634 So.2d 579, 580 (Ala.Civ.App.1994); Ex parte Henderson, 574 So.2d 830, 831 (Ala.Civ.App.1990). This exception evolves from the need of the debtor to support his or her dependents and yet obtain a fresh start in financial matters. Id.; In re Haney, 33 B.R. 6 (Bankr.N.D.Ala.1983). It is well established that support obligations are not dischargeable in bankruptcy, but divisions of property not in the nature of support are dischargeable. Pressnell v. Pressnell, 519 So.2d 536, 537 (Ala.Civ.App.1987). ‘[A]limony in gross and property divisions are dis-chargeable debts.’ Gould v. Gould, 586 So.2d 938, 939 (Ala.Civ.App.1991).”

In order for an award to constitute a property settlement and be dischargeable in bankruptcy, the time for payment must be certain and the right to payment must be vested and not subject to modification. Segers v. Segers, 655 So.2d 1014, 1016 (Ala.Civ.App.1995).

The record indicates that on June 16, 2005, the trial court ordered the father to pay the mortgage payments on the parties’ marital home during the pendency of the action. Testimony at trial revealed that the father had failed to comply with the order of the trial court. In its January 16, 2007, divorce judgment, the trial court found that the father had failed to make the payments on the parties’ marital home as ordered and that those payments were made “in lieu of alimony support and maintenance to the [mother].” The trial court ordered the father to pay the mother $3,293.81 for the payments missed from November 2005 to December 2006.

The dispositive issue is whether the father’s responsibility for paying the mortgage was more in the nature of a support obligation or more in the nature of a property division. Because the trial court ordered the father to pay the mortgage payments on a temporary basis, the father’s obligation to pay the mortgage payments was subject to modification. See Segers v. Segers, supra. The trial court’s order requiring the father to pay the mortgage payments was a court-ordered obligation to provide maintenance and support for the mother pending the final hearing. Because the father’s obligation to pay the mortgage payments was temporary, it was more in the nature of a support obligation. As such, the obligation was not dischargea-ble in bankruptcy. See Pressnell v. Pressnell, 519 So.2d 536, 537 (Ala.Civ.App.1987) (recognizing that court-ordered support obligations are not dischargeable in bankruptcy). Therefore, the mortgage payments were properly included in the trial court’s order, and we affirm as to this issue.

AFFIRMED.

PITTMAN, J., concurs.

MOORE, J., concurs in the rationale in part and concurs in the result, with writing.

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

THOMAS, J., recuses herself.

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

I concur in all aspects of the main opinion except that aspect addressing the issue of recusal. As to that issue, I concur in the result.

      . The record does not reveal the date of the "upcoming” election.


text:
    PIPELINE TECHNIC, L.L.C. v. James MASON.
    2060657.
    Court of Civil Appeals of Alabama.
    April 18, 2008.
    Certiorari Denied Nov. 14, 2008 Alabama Supreme Court 1071067.

      Carroll H. Sullivan and George M. Zoghby of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for appellant.
    Sidney W. Jackson III and Mathew B. Richardson of Jackson, Foster & Graham, LLC, Mobile, for appellee.
   BRYAN, Judge.

Pipeline Technic, L.L.C., appeals from a judgment of the trial court awarding workers’ compensation benefits to James Mason for a permanent and total disability. The dispositive issue on appeal is whether the trial court erred in awarding benefits to Mason for an injury to the body as a whole rather than for an injury to a scheduled member under § 25-5-57(a)(3), Ala. Code 1975. We affirm.

Mason worked for Pipeline as a welder. On September 19, 2004, Mason was injured at work when a pipe roller fell on his right foot. Mason sustained a “crush injury” that fractured bones, lacerated tendons, crushed tissue, and caused an open wound in his foot. Dr. Frederick N. Meyer, an orthopedic surgeon, operated on Mason’s injured foot on September 19, 2004.

In December 2004, Mason sued Pipeline, seeking workers’ compensation benefits. Following a trial held in November 2006, the trial court entered a judgment awarding Mason permanent-total-disability benefits. In its judgment, the trial court stated, in pertinent part:

“The Court observed and paid close attention to Mr. Mason’s demeanor in Court. The Court observed the fact that Mr. Mason was unsteady on his feet and had difficulty walking. He held himself in a cautious manner and appeared to be seriously hurt and in pain.... The Court found Mr. Mason to be a credible and candid witness and his testimony as to his injuries was substantiated and backed up by the medical evidence.
“... Due to Mr. Mason’s unsteady gait, and taking into consideration the testimony of Dr. Meyer, the Court finds that Mr. Mason will suffer both foot pain and back pain which becomes debilitating as Mr. Mason’s activity increases throughout each day....
“... The Court has observed through testimony and photographic evidence the softball size ‘knot’ (swelling) in Mr. Mason’s back. After observing Mr. Mason on two separate occasions, the Court concludes that the injury to Mr. Mason’s foot adversely affects his gait and his improper gait causes the swelling and pain in Mr. Mason’s back.
“... The Court finds that Mr. Mason’s injury is not limited solely to his foot and ankle. The Court concludes that the injury to Mr. Mason’s foot and ankle affects the efficiency of other parts of his body, specifically his back. As a result, Mr. Mason is not limited to the scheduled allowance for his lost lower right extremity and the Court concludes that he is permanently and totally disabled on that basis.
“... [In] addition, the Court concludes that the pain which Mr. Mason suffers to his foot is constant and debilitating and of such severity to preclude Mr. Mason from engaging in other gainful employment .... Such pain also further supports the Court’s conclusion that Mr. Mason is permanently and totally disabled from obtaining and/or performing gainful employment.”

Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). “This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.” Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).

On appeal, Pipeline first argues that the trial court erred in awarding Mason benefits for an injury to the body as a whole, rather than for an injury to a scheduled member under § 25-5-57(a)(3), Ala.Code 1975. In Ex parte Drummond Co., 837 So.2d 831, 834 (Ala.2002), our supreme court restated the test for determining when an injury to a scheduled member should be treated as an nonscheduled injury to the body as a whole: “ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)). See also Ex parte Jackson, 997 So.2d 1038 (Ala.2007) (reversing Boise Cascade Corp. v. Jackson, 997 So.2d 1026 (Ala.Civ.App.2007), in which this court reversed a trial court’s judgment awarding benefits outside the schedule when the employee presented evidence indicating that an injury to his lower extremity had caused an altered gait, in turn causing back pain). Pipeline contends that the trial court erred in finding that Mason’s injury to his right foot, a scheduled member, extended to his back, a nonscheduled body part.

The record on appeal contains the following additional facts. The record on appeal indicates that Dr. Meyer, the physician who operated on Mason’s foot in September 2004, continued to treat Mason’s injury following the surgery. On March 9, 2005, Mason told Dr. Meyer that he was experiencing back pain. Dr. Meyer prescribed Mobic, a nonsteroidal, anti-inflammatory pain reliever, for Mason’s back pain. On April 8, 2005, Mason reported to Dr. Meyer that his back pain had “improved significantly.” Dr. Meyer testified by deposition that Mason made no further complaints about back pain.

On August 19, 2005, Dr. Sudhakar Ma-danagopal, a physician associated with Dr. Meyer, examined Mason and noted that Mason was “walking with a gait where he places most of his weight on the lateral border of the foot.” Dr. Meyer testified that Mason’s walking in that manner “could cause back pain if he did it long enough.” Dr. Meyer opined that Mason reached maximum medical improvement on October 28, 2005. On that date, Dr. Meyer assigned a impairment rating of seven percent to Mason’s body as a whole based on his right-foot injury. Dr. Meyer also concluded that Mason had a zero-percent impairment rating in the category of “gait derangement.” Dr. Meyer last treated Mason on October 28, 2005.

At trial in November 2006, Mason testified that, due to the effects of his right-foot injury, he walks “on the side” of that foot, causing him to limp. Mason testified that the manner in which he walks causes pain and swelling in his back every day. Mason stated that he experiences back pain when he walks but experiences little back pain when he is not walking. Using a 10-point scale, Mason testified that his back pain sometimes reaches a pain level of 10. Mason stated that he takes nonprescription medication to relieve his back pain. Mason testified that he underwent no medical tests on his back following his foot injury.

In its judgment, the trial court found that the effects of Mason’s foot injury extended to his back and interfered with its efficiency. Therefore, pursuant to Ex parte Drummond Co., supra, the trial court awarded Mason workers’ compensation benefits for an injury to the body as a whole under § 25-5-57(a)(4), Ala.Code 1975, rather than for an injury to a scheduled member under § 25-5-57(a)(3), Ala. Code 1975. Pipeline argues that there is not substantial evidence indicating that the effects of Mason’s foot injury extended to Mason’s back.

Pipeline cites Chadwick Timber Co. v. Philon, [Ms. 2050697, March 16, 2007] — So.3d - (Ala.Civ.App.2007), in support of its argument. In Chadwick Timber, the employee broke his leg in a workplace accident. The trial court in that case found that the employee had sustained work-related injuries to both his leg and back, and it awarded workers’ compensation benefits for an injury to the body as a whole. The employer argued on appeal that the employee had failed to present substantial evidence of medical causation regarding the employee’s claim that his back injury was work related. This court reversed the trial court’s judgment, stating:

“We must conclude ... that [the employee] failed to present substantial evidence of medical causation with regard to his claim that his leg injury extended to other parts of his body so as to cause a permanent and total disability. [The employee] testified that his leg injury caused him to suffer back pain. However, the only other evidence in the record pertaining to whether [the employee’s] leg injury caused his back pain was the testimony of Dr. [Albert] Pearsall[, the employee’s treating physician]. Dr. Pearsall could state only that it was possible, but not likely, that the back pain was caused by a change in [the employee’s] gait. We cannot hold that the foregoing amounts to ‘ “more than evidence of mere possibilities” ’ that [the employee]’s back injury was related to the injury to his leg .... Ex parte Southern Energy Homes, Inc., 873 So.2d [1116,] 1122 [ (Ala.2003) ]. Given the facts of this case, to find [the employer] responsible for workers’ compensation benefits outside the schedule set forth in § 25-5-57(a) based on the foregoing evidence ‘ “would only serve to ‘guess’ [it] into liability.” ’ Id.”

— So.3d at - (emphasis added).

In Honda Manufacturing of Alabama, LLC v. Alford, 6 So.3d 22 (Ala.Civ.App.2007), the employee sustained a work-related injury to his knee. The trial court in that case found that the ‘“[employee’s] favoring his injured knee caused additional strain on [his] back,’ ” resulting in an injury to the employee’s back. 6 So.3d at 24. Consequently, the trial court awarded workers’ compensation benefits outside the schedule of injuries provided in § 25-5-57(a)(3). In reversing that part of the trial court’s judgment awarding benefits outside the schedule, this court stated:

“[T]he employee has testified that he experienced back pain after sustaining his knee injury. However, the employee has sought medical attention for that back pain on only one occasion, in February 2005, at which time the employee was diagnosed with chronic back pain that was insufficient to warrant further medical intervention or testing. No medical evidence connected the medical conditions present in the employee’s spinal column to the knee injury he had sustained while working for the employer. Moreover, as in Chadwick Timber, no medical evidence adduced at trial would support anything other than the mere possibility that a lower-extremity injury could have caused back pain via a change in the injured person’s gait; indeed, in this case, Dr. /George] Douthitf, the employee’s treating physician,] expressed surprise that the employee would have suffered back pain after the knee injury. As a result, we cannot conclude that that portion of the trial court’s judgment awarding benefits beyond those specified in the schedule of members in the [Alabama Workers’ Compensation] Act[, § 25-5-1 et seq., Ala.Code 1975,] is supported by substantial evidence.”

6 So.3d at 28-29 (final emphasis added).

In Chadwick Timber and Honda Manufacturing, the employees’ treating physicians indicated that back pain would be an unlikely or unexpected result of the employees’ altered gaits in those cases. That is, medical evidence in those cases tended to suggest that the employees’ back pain was not caused by an altered gait. However, in this case, Dr. Meyer testified that Mason’s altered gait “could cause back pain if he did it long enough.” Dr. Meyer last examined Mason in October 2005, and the trial was held in November 2006, more than a year later. Mason testified at trial that his foot injury causes him to alter his gait, which he claimed in turn causes him daily back pain and swelling. Mason testified that he experiences back pain when he walks but that he experiences little back pain when he is not walking. In its judgment, the trial court noted that it had observed Mason’s “improper gait” and found that Mason’s gait “causes the swelling and pain” in his back. The trial court further found Mason to be a credible witness.

We recognize that “evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to ‘guess’ the employer into liability.” Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989). However, we note also that “ ‘[m]edical causation may be found by the trial court without testimony from medical doctors. Ex parte Price, 555 So.2d 1060 (Ala.1989).’ ” Guck v. Daniel & Son, Inc., 848 So.2d 1001, 1004 (Ala.Civ.App.2002) (quoting Pair v. Jack’s Family Restaurants, Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000)). “As the finder of facts, ... the trial court is authorized to draw any reasonable inference from the evidence, including conclusions of medical facts that are not within the peculiar knowledge of medical experts.” Ex parte Price, 555 So.2d 1060, 1062 (Ala.1989). “ ‘[I]t is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test [for medical causation] finds its application.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1121 (Ala.2003) (quoting Ex parte Price, 555 So.2d at 1063) (emphasis omitted). In this case, Mason’s testimony indicates that his gait, altered as a result of his foot injury, causes daily pain and swelling in his back; the medical evidence does not contradict this evidence. Accordingly, the trial court did not err in finding, pursuant to the test stated in Ex parte Drummond Co., that the effects of Mason’s foot injury extended to his back and affected its efficiency.

Pipeline also argues that the trial court erred in admitting photographs depicting swelling in Mason’s back. Mason testified at trial that he experiences swelling in his back, and the trial court found Mason to be a credible witness. Therefore, even if the trial court erred in admitting the photographs, that error was harmless because those photographs provided cumulative evidence. See Ex parte Key, 890 So.2d 1056, 1066 (Ala.2003) (stating that even if the trial court exceeded its discretion in admitting certain testimony, any error was harmless because that testimony was cumulative); Yeomans v. State, 641 So.2d 1269, 1272 (Ala.Crim.App.1993) (“Testimony that may be apparently inadmissible may be rendered innocuous by subsequent or prior lawful testimony to the same effect or from which the same facts can be inferred.”); and Rule 45, Ala. R.App. P. Moreover, the photographs depicting swelling in Mason’s back offer no evidence regarding the key issue of whether the effects of his foot injury caused that swelling. Regardless of the photographs, substantial evidence supported the trial court’s finding that the effects of Mason’s foot injury extended to his back and affected its efficiency by causing pain and swelling.

In addition to awarding Mason benefits outside the schedule based on application of the test found in Ex parte Drummond, the trial court also awarded Mason benefits outside the schedule based on its finding that Mason suffers from debilitating pain. See Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005) (plurality opinion) (affirming a trial court’s judgment awarding benefits outside the schedule on the ground that the employee suffered constant and severe pain that, although isolated to scheduled members, caused a debilitating effect to the employee’s body as a whole). See also Shoney’s, Inc. v. Rigsby, 971 So.2d 722 (Ala.Civ.App.2007) (distinguishing the facts of that case from those of Johnson while applying the Johnson analysis); and Kohler Co. v. Miller, 921 So.2d 436 (Ala.Civ.App.2005) (distinguishing the facts of that case from those of Johnson). On appeal, Pipeline also argues that the trial court erred in awarding Mason benefits outside the schedule based on a finding that Mason suffers from debilitating pain. However, we pretermit discussion of this issue based on our conclusion that the trial court did not err in awarding benefits outside the schedule under the test stated in Ex parte Drummond Co. Further, because we conclude that the trial court did not err in treating Mason’s injury as an injury to the body as a whole, Pipeline’s argument that the trial court erred in admitting evidence regarding Mason’s vocational disability and education fails.

We conclude that the trial court did not err in awarding workers’ compensation benefits to Mason for an injury to the body as a whole rather than for an injury to a scheduled member. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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