author: THOMPSON, Presiding Judge.

text:
    Grover DUNN, assistant tax collector of Jefferson County, and Andrew Bennett, assistant tax assessor of Jefferson County v. SEQUA CORPORATION.
    2100299.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Shawnna H. Smith, asst, county atty., Birmingham, for appellants.
    Justin D. Fingar and W. Howard Donovan III of DonovanFingar, LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Grover Dunn, as assistant tax collector of Jefferson County, and Andrew Bennett, as assistant tax assessor of Jefferson County (collectively, “the taxing authorities”), appeal from the judgment of the Jefferson Probate Court awarding a refund to Sequa Corporation (“Sequa”) of certain ad valorem taxes Sequa had paid. For the reasons set forth herein, we affirm that judgment.

The facts are largely undisputed. On May 19, 2005, Sequa applied to the Industrial Development Board of the City of Hueytown (“the IDB”) for an abatement of certain taxes, including ad valorem taxes, pursuant to the Tax Incentive Reform Act of 1992, § 40-9B-1 et seq., Ala.Code 1975 (“TIRA”). On May 31, 2005, Sequa and the IDB entered into a tax-abatement agreement pursuant to which Sequa was granted an abatement from liability for noneducational property taxes, construction-related transaction taxes, and mortgage and recording taxes. The IDB notified the Jefferson County Commission and the Alabama Department of Revenue of its approval of Sequa’s tax-abatement request. In a letter to Sequa dated July 1, 2005, the Department of Revenue wrote, in part:

“For property tax purposes, the abatement between [Sequa] and [the IDB] provides that [Sequa] shall be allowed an abatement of property taxes not required to be used for educational purposes or for capital improvements for education for the maximum of 10 years as specified in the abatement agreement.
“Pursuant to Section 40-7-4, Code of Alabama 1975, all personal property such as furniture, fixtures, machinery, and/or equipment that has attained situs in the State of Alabama as of October 1, and all real property (land and/or buildings) that has been acquired must be reported and assessed, between October 1 and December 31, with the [Alabama] County assessing official. Additionally, any abatement on such real and/or personal property that has been granted should also be claimed between October 1 and December 31, with the AL County assessing official.
“Therefore, to ensure that [Sequa] receives the proper credit due, a copy of any and all abatement agreements in addition to the listing of all abated property should be provided to the county assessing official. Not providing this information to the county assessing official may delay [Sequa]’s credit for the abated taxes.”

It is undisputed that Sequa did not immediately notify the Jefferson County tax assessor of the tax exemptions to which it was entitled under the tax-abatement agreement. Moreover, in its personal-property ad valorem tax returns for 2007 and 2008 that it filed with the Jefferson County Tax Assessor, Sequa did not reference the tax-abatement agreement or respond affirmatively when asked in the returns whether it claimed that any of its property was exempt from taxation. In its 2009 personal-property ad valorem tax return, Sequa referenced its exemption from sales and use taxes, but it did not reference its exemption from ad valorem taxes. On December 27, 2007, and on December 17, 2008, Sequa paid real- and personal-property ad valorem taxes to the assistant tax collector on four parcels based on a millage rate that did not take into account the tax exemptions to which Sequa was entitled by virtue of the tax-abatement agreement.

On December 18, 2009, Sequa filed a petition for a refund of ad valorem taxes with the Jefferson Probate Court pursuant to § 40-10-160, Ala.Code 1975. That section provides:

“Any taxpayer who through any mistake, or by reason of any double assessment, or by any error in the assessment or collection of taxes, or other error, has paid taxes that were not due upon the property of such taxpayer shall be entitled, upon making proof of such payment to the satisfaction of the Comptroller, to have such taxes refunded to him if application shall be made therefor, as hereinafter provided, within two years from the date of such payment.”

In its petition, Sequa contended that it had overpaid its 2007 and 2008 ad valorem taxes because of mistake or error. In particular, it asserted that the tax bills that had been issued to it for those years had failed to take into consideration the tax-abatement agreement and, as a result, that it had been charged at a higher tax rate than was applicable.

On December 31, 2009, Sequa again paid real- and personal-property ad valorem taxes to the assistant tax collector based on a millage rate that did not take into account the tax-abatement agreement. Thereafter, Sequa amended its petition for a refund of taxes to reflect that additional tax payment.

On February 2, 2010, the taxing authorities filed a response to Sequa’s petition in which they denied that Sequa was entitled to the refund of ad valorem taxes that it sought. They argued that Sequa had not notified the tax assessor of its exemption from ad valorem taxes until November 2009 and, as a result, that Sequa had lost the benefit of that exemption for the prior tax years. They also argued that Sequa’s failure to inform the tax assessor of its entitlement to tax exemptions did not constitute a “mistake” or “error” for which it could obtain a refund under § 40-10-160.

On March 8, 2010, and June 25, 2010, the probate court held a bench trial at which it received ore tenus and documentary evidence. Following the trial, the probate court entered a judgment in which it found, among other things, that Sequa had “complied with the requirements of TIRA for the abatement of noneducational ad valorem taxes” and that its “failure to note or claim the abatement on the personal property tax returns for the 2007, 2008, and 2009 tax years was an inadvertent error which resulted in overpayments of ad valorem taxes for the years at issue.” Thus, the probate court concluded, Sequa was entitled, under § 40-10-160, to a refund of its overpayments of ad valorem taxes for those years. The taxing authorities appealed the probate court’s judgment to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Because this appeal presents questions of law that are based on largely undisputed facts, our review is de novo. See Ex parte Soleyn, 33 So.3d 584, 587 (Ala.2009) (“[I]t is well established that where the issues involve only the application of law to undisputed facts appellate review is de novo.”). The taxing authorities argue that the trial court erred in its interpretation of § 40-10-160 because, they say, the terms “mistake” and “error” as used in that statute do not include a taxpayer’s failure to claim an exemption on its tax returns. Relying on §§ 40-7-4 and -6, Ala.Code 1975, they argue that, to claim a property-tax exemption, a taxpayer is required to notify the tax assessor that the property is entitled to an exemption and that, when a taxpayer fails to notify the tax assessor of any exemption to which it is entitled as required by those statutes, the taxpayer is not entitled to an exemption. They point out that notification by the taxpayer is the only means by which a tax assessor can learn of a tax abatement.

Section 40-7-4 requires that a taxpayer “render to the [tax] assessor under oath a full and complete list of all property of which he was owner, or in which he had any interest whatever,” on an annual basis. Section 40-7-6 provides, in relevant part:

“All property claimed exempt from taxation under the provisions of this title shall be listed with the tax assessor by the taxpayer and entered on his return showing the items of property sought to be exempted, and no property omitted from said return shall be exempted.”

The effect of these statutes is that, if a taxpayer wants to claim the benefit of a property-tax exemption, the taxpayer must list that exemption with the tax assessor. As the attorney general has opined, “[t]he assessing officer’s duty as to claims of exemption does not include an affirmative search of all the property in his jurisdiction to seek out and apply exemptions.” Op. Att’y Gen. No. 2002-280 (July 2, 2002).

Despite the disallowance in § 40-7-6 of an exemption that a taxpayer has failed to claim, § 40-10-160, as previously noted, provides that a taxpayer is entitled, upon the filing of an appropriate application and subject to a limitations period of two years, to a refund of taxes paid “that were not due upon the property of such taxpayer” if the payment was made “through any mistake, ... or by any error in the assessment or collection of taxes, or other error.”

In the present case, it is undisputed that Sequa did not comply with § 40-7-6 with regard to the ad valorem tax exemption provided by the tax-abatement agreement because it failed to list with the tax assessor any tax exemptions resulting from the tax-abatement agreement. The question presented by this appeal is whether Sequa’s inadvertent failure to claim on its tax returns the tax exemptions provided by the tax-abatement agreement or otherwise to notify the tax assessor of the exemptions provided by that agreement causes it to lose the benefit of the tax-abatement agreement to which it was otherwise entitled during 2007, 2008, and 2009 or whether § 40-10-160 provides Se-qua relief from its failure to claim the exemptions provided by the tax-abatement agreement.

Regarding statutory construction, our supreme court has written:

“It is this Court’s responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958). Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County [Health ] Care Auth., 850 So.2d 332 (Ala.2002).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003). Furthermore, “statutes concerning the same subject matter are to be read in pari materia and should be construed together to ascertain the meaning of each.” Jefferson County v. Weinrib, 36 So.3d 508, 511-12 (Ala.2009).

It is apparent from the plain language of § 40-10-160 that the legislature intended to provide a taxpayer relief when an error or mistake results in the taxpayer’s payment of taxes that were not due and that, but for the error or mistake, would not have been paid. Reading that section in pari materia with § 40-7-6, we conclude that § 40-10-160 constitutes an exception to the general rule that a taxpayer who has failed to list its property as exempt with the tax assessor is not entitled to an exemption as to that property. Thus, if the reason the property was not listed with the tax assessor was because of a mistake or error, the taxpayer is entitled, upon the filing of a proper application under § 40-10-160, to obtain a refund for taxes paid on the exempt property during the two years preceding the filing of the application. Such a reading gives both statutes a field of operation and gives full effect to what we believe was the intention of the legislature in enacting a mechanism by which a taxpayer can obtain a refund for taxes mistakenly or erroneously paid.

Our conclusion in this regard is in accord with advice the attorney general of Alabama has provided previously to tax officials. In Op. Att’y Gen. No. 2002-280, the attorney general was asked whether a taxpayer can obtain a refund pursuant to § 40-10-160 when the taxpayer had failed to claim an exemption in a prior tax return. In 'response, after quoting § 40-10-160 and § 40-7-6, the attorney general wrote:

“The assessing officer’s duty as to claims of exemption does not include an affirmative search of all the property in his jurisdiction to seek out and apply exemptions. If an exemption is claimed, he should verify the facts upon which the claim of exemption is based to satisfy himself of the validity of the claim. The property owner/taxpayer has the responsibility to make a claim of exemption in accordance with the law if he expects to be granted the benefit of the exemption. See State v. Ross Grady Ins. Agency, Inc., [48 Ala.App. 578,] 266 So.2d 787 ([Civ.App.] 1972). If, however, a taxpayer is entitled to an exemption, but paid the taxes because, by mistake, the taxpayer failed to claim the exemption, the taxpayer is entitled to a refund pursuant to [§] 40-10-160 of the Code of Alabama.”

Op. Att’y Gen. No. 2002-280. See also Op. Att’y Gen. No. 2003-26 (Nov. 6, 2002). Although we are not bound by an opinion of the attorney general, we note that “an attorney general’s opinion ... can be persuasive authority.” HealthSouth Corp. v. Jefferson County Tax Assessor, 978 So.2d 737, 741 (Ala.Civ.App.2006), aff'd, 978 So.2d 745 (Ala.2007).

The taxing authorities rely on Jones v. Johnson, 240 Ala. 357, 199 So. 539 (1941), but we find that case distinguishable from the present case. In Jones, our supreme court wrote that “the law requires the taxpayer in his return from year to year to list the homestead separately thus disclosing the lands claimed as exempt from State ad valorem taxes, and in the absence of such claim in the return or by supplementary return, the exemption is lost.” 240 Ala. at 360, 199 So. at 542. However, the only question to which that holding was directed was whether, “[t]o obtain the benefit of the exemption of the homestead from State ad valorem taxes, ... the taxpayer, in his return, [must] disclose the realty constituting the homestead, or otherwise make claim to his tax exemption thereon.” 240 Ala. at 359, 199 So. at 541. There was no issue raised in that case as to whether a taxpayer who mistakenly fails to claim that certain of its property is exempt from taxation is thereafter permitted to obtain a refund of taxes paid based on § 40-10-160. In effect, the Jones court merely restated the general rule we noted above, i.e., that a taxpayer who has failed to list its property as exempt with the tax assessor is not entitled to an exemption as to that property.

In State v. Ross Grady Insurance Agency, Inc., 48 Ala.App. 578, 266 So.2d 787 (Civ.App.1972), the other case on which the taxing authorities rely, an insurance agency sought a refund of domestic-corporation share taxes it had paid on the basis that, because it qualified as a financial institution, it was entitled to an exemption from those taxes. 48 Ala.App. at 580, 266 So.2d at 788-89. On appeal from a judgment awarding the agency the refund it had sought, this court reversed, holding that the statute providing for the exemption required the taxpayer to have paid excise taxes and to have filed excise-tax returns to be entitled to the exemption. 48 Ala.App. at 582-85, 266 So.2d at 792-94. Because the agency had not done so, this court concluded that the agency had not been entitled to the exemption it claimed and, therefore, that it was not entitled to the refund it sought. 48 Ala.App. at 585, 266 So.2d at 794. Unlike the taxpayer in Ross Grady, in the present case Sequa fully qualified for the exemptions at issue; it simply failed to inform the tax assessor of those exemptions or note those exemptions on its tax returns. Thus, Ross Grady has no application to the present case.

The taxing authorities next contend that Sequa’s failure to notify the tax assessor of the exemptions to which it was entitled by virtue of the tax-abatement agreement does not constitute a “mistake” or “error” under § 40-10-160. We disagree.

Construing § 40-10-160 and, in particular, discussing the meaning of the terms “mistakes” and “error” as used in that statute, this court has written:

“The pertinent language of [§ 40-10-160] is: ‘Any taxpayer who through any mistake, ... or by any error in the assessment or collection of taxes, or other error, has paid taxes that were not due upon the property of such taxpayer-’ Nothing in § 40-10-160, Ala. Code 1975, leads us to believe that the legislature intended anything other than the plain meaning of those words. We do not find the language to be ambiguous, and because the legislature failed to define the words ‘mistake’ and ‘error,’ we must give those words their common, everyday meaning. The term ‘mistake’ is defined as ‘a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.’ Merriam-Webster’s Collegiate Dictionary 795 (11th ed.2003). The term ‘error’ is defined as ‘an act involving an unintentional deviation from truth or accuracy.’ Merriam-Webster’s Collegiate Dictionary 425 (11th ed. 2003).”

HealthSouth Corp. v. Jefferson County Tax Assessor, 978 So.2d at 741.

Although, in the present case, it is undisputed that Sequa received a letter from the Department of Revenue indicating that it was required to claim the ad valorem tax exemption with the tax assessor, nothing in the record indicates that Sequa intentionally chose to reject the tax exemptions to which it was entitled by virtue of the tax-abatement agreement or that it received some benefit by failing to list its property as exempt such that an inference of such intent could arise. In fact, the probate court found that Sequa’s failure to claim its abatement on its personal-property tax returns was inadvertent, and the taxing authorities have not challenged that finding on appeal by showing that the evidence of record did not support that finding.

We find that, under the facts of this case, Sequa’s failure to claim the ad valo-rem tax exemptions, under § 40-7-6, to which it was entitled and for which it subsequently sought a refund constituted a “mistake” or “error” as this court defined those terms for purposes of § 40-10-160 in HealthSouth Corp. As a result, we conclude that the probate court’s judgment providing for the refund of ad valorem taxes for which Sequa had petitioned is due to be affirmed.

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Our supreme court has described TIRA as follows:
      "TIRA is intended to promote industrial growth in Alabama by permitting municipalities, counties, and [public industrial authorities] to abate municipal, county, and state noneducational ad valorem taxes, construction-related ‘transaction’ taxes, mortgage taxes, and recording taxes for a 'maximum exemption period’ of 10 years when such taxes would otherwise be levied or collected 'with respect to private use industrial property.' §§ 40-9B-4 and -5, Ala. Code 1975. TIRA requires the abatements to ‘be embodied in an agreement' which must set forth the estimated amount of the abatement, ‘the maximum exemption period,’ and the '[g]ood-faith projections by the private user of: the amount to be invested!,] the number of individuals to be employed, initially and in the succeeding three years),] and the payroll.' § 40-9B-6(b)(l) and (2).”

        Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    STATE OF ALABAMA DEPARTMENT OF TRANSPORTATION v. Pace REID.
    2100351.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Luther Strange, atty. gen., and John Nieman, deputy atty. gen.; and Jim R. Ippolito, Jr., chief counsel and asst. atty. gen., and Robert Prescott, asst, counsel and asst. atty. gen., State of Alabama Department of Transportation, for appellant.
    J. Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for appellee.
   THOMAS, Judge.

The State of Alabama Department of Transportation (“ALDOT”) appeals from a judgment of the Shelby Circuit Court reversing a decision of an Administrative Law Judge (“ALJ”) upholding the decision of ALDOT to deny Pace Reid’s application for a permit to erect an outdoor advertising sign. We affirm.

Reid owns a parcel of real property along the-right-of-way for Interstate 65 (“1-65”) in Shelby County. The property contains a small group of buildings, a gravel parking area, a north-entrance driveway, a south-entrance driveway, and a concrete paved area (“the concrete pad”), which is located at the end of the parking area and the beginning of the south-entrance driveway. A moving company named Changes in Latitude (“the moving company”) is currently leasing the property and operating its business on the property. On May 19, 2007, Reid filed an application with ALDOT for a permit to erect an outdoor advertising sign on his property adjacent to 1-65 at milepost 244.88.

The Highway Beautification Act — Outdoor Advertising (“the Act”), codified at § 23-1-251, Ala.Code 1975 et seq., together with the regulations adopted by AL-DOT thereunder, provide the procedures and standards governing the erection of outdoor advertising signs in areas adjacent to interstate highways and other primary highways. The Act provides that anyone who desires to erect an outdoor advertising sign in an area adjacent to an interstate highway must submit an application for a permit from ALDOT. Section 23-1-273 of the Act provides that, subject to certain exceptions,

“[n]o sign shall, subject to the provisions of Section 23-1-274, be erected or maintained in an adjacent area after February 10,1972, nor shall any outdoor advertising sign, display, or device with the purpose of its message being read from the main-traveled way of an interstate highway or primary highway be erected after April 11, 1978, outside of an urban area beyond 660 feet of the nearest edge of right-of-way of an interstate or primary highway.”

One of the exceptions to the prohibition on outdoor advertising signs located outside urban areas is for signs that are located in “business areas.” § 23-1-273(5). A business area is defined in § 23-1-271(1) as “[a]ny part of an adjacent area which is at any time zoned for business, industrial, or commercial activities under the authority of any law of this state or not zoned, but which constitutes an unzoned commercial or industrial area as defined in this section.” Section 23-1-271(10) provides the following definition of an unzoned commercial, business, or industrial area:

“The land occupied by the regularly used building, parking lot, storage or processing area of a commercial, business, or industrial activity, and the land within 600 feet thereof on each side of the highway. The unzoned area shall not include:
“a. Land on the opposite side of an interstate or primary freeway highway from an unzoned commercial, business, or industrial area, as defined above;
“b. Land predominantly used for residential purposes;
“c. Land zoned by state or local law, regulation, or ordinance;
“d. Land on the opposite side of a nonfreeway primary highway which is determined scenic by [ALDOT].
“All measurements shall be from the outer edges of the regularly used buildings, parking lots, storage or processing areas of the commercial or industrial activities, not from the property lines of the activities, unless said property lines coincide with the limits of the regularly used buildings, parking lots, storage or processing areas and shall be along or parallel to the edge or pavement of the highway.”

Reid’s property is located in an unzoned, nonurban area. ALDOT denied Reid’s application for an outdoor advertising sign because it determined that the proposed location for the outdoor advertising sign was not within 600 feet of any commercial activity. Reid appealed ALDOT’s denial of his permit to erect an outdoor advertising sign to the Division of Administrative Hearings of the Attorney General’s Office; ALDOT requested a hearing before an ALJ.

The ALJ held a hearing on Reid’s permit application, at which the ALJ heard ore tenus testimony from Reid; from James Braden, the assistant state maintenance engineer over permits and operations; and from Bradley Stevens, the owner of the moving company. According to the testimony presented, the buildings and the parking area that are located on the property are more than 600 feet from the proposed outdoor-advertising-sign location; however, portions of the concrete pad and the south-entrance driveway were within 600 feet of the proposed outdoor-advertising-sign location. Stevens testified that the moving company used the concrete pad to wash its trucks. Reid argued that because the concrete pad was used by the moving company to wash its trucks, it was part of the commercial activities of the moving company. ALDOT disputed Reid’s and Stevens’s assertion that the concrete pad was regularly used for any commercial activity; it argued that the moving company’s use of the concrete pad was only sporadic at best. Reid also argued that the Act and ALDOT’s regulations do not require an outdoor advertising sign to be located within 600 feet of commercial activity; ALDOT disputed this assertion.

The ALJ subsequently entered a proposed order upholding ALDOT’s decision to deny the permit for an outdoor advertising sign. In its proposed order, the ALJ concluded that the proposed outdoor-advertising-sign location was more than 600 feet from any commercial activity. AL-DOT adopted the ALJ’s proposed order as a final determination of ALDOT. Reid then filed a notice of appeal with ALDOT, see § 41-22-20(b), Ala.Code 1975, and a petition for judicial review in the trial court. See § 41-22-20(b) and (d), Ala. Code 1975.

After a hearing at which the trial court heard arguments of counsel, the trial court entered a judgment reversing the ALJ’s decision and directing ALDOT to issue a permit to Reid for the proposed outdoor advertising sign. The trial court listed three bases for its determination that ALDOT should have issued the permit to Reid. First, the trial court determined that neither the Act nor the applicable regulations required an outdoor advertising sign in an unzoned, nonurban area to be located within 600 feet of commercial activity. Secondly, the trial court determined that the concrete pad, which was located within 600 feet of the proposed outdoor-advertising-sign location, was regularly used by the moving company; therefore, the trial court determined, the proposed outdoor-advertising-sign location was within 600 feet of commercial activity. Third, the trial court determined that the entire south-entrance driveway was a part of the “processing area” for the moving company, as that term is used in § 23-1-270(10); therefore, the trial court determined, because the proposed outdoor-advertising-sign location was within 600 feet of the south-entrance driveway, it was within 600 feet of commercial activity. ALDOT subsequently appealed to this court.

“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d 1093, 1097 (Ala.2004) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)). Furthermore, this court reviews a circuit court’s judgment as to an agency’s administrative decision without a presumption of correctness because the circuit court is in no better position to review the agency’s decision than is this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994).

In its judgment, the trial court listed three bases for its reversal of the ALJ’s decision. The trial court determined (1) that the law did not require an outdoor advertising sign in an unzoned, nonurban area to be located within 600 feet of commercial activity; (2) that the concrete pad was regularly used by the moving company as part of its commercial activities; and (3) that the entire south-entrance driveway was a processing area for the moving company. In its appeal, ALDOT has presented arguments related to whether the Act requires an outdoor advertising sign in an unzoned, nonurban area to be located within 600 feet of commercial activity and whether the moving company used the concrete pad as part of its regular commercial activities. However, ALDOT has not provided any argument related to the third basis stated by the trial court — that the south-entrance driveway constituted a processing area of the moving company and was, therefore, part of the area to be considered as being used for commercial activity.

Because ALDOT has not provided any argument challenging the third basis for the trial court’s judgment, it has waived any argument on appeal as to the correctness of that basis for the judgment of the trial court. “ ‘An argument not made on appeal is abandoned or waived.’ ” Muhammad v. Ford, 986 So.2d 1158, 1165 (Ala.2007) (quoting Avis Rent A Car Sys., Inc. v. Heilman, 876 So.2d 1111, 1124 n. 8 (Ala.2003)). Moreover, it is well settled that, in order to secure a reversal, “the appellant has an affirmative duty of showing error upon the record,” Tucker v. Nichols, 431 So.2d 1263, 1264 (Ala.1983), and that “ ‘[i]t is not the function of this court to search a record on appeal to find evidence to support a party’s argument.’ ” Ellison v. Green, 775 So.2d 831, 833 (Ala.Civ.App.2000)(quoting Brown v. Brown, 719 So.2d 228, 230 (Ala.Civ.App.1998)). See also Soutullo v. Mobile County, 58 So.3d 733, 739 (Ala.2010) (holding that “the failure of the appellant to discuss in the opening brief an issue on which the trial court might have relied as a basis for its judgment[ ] results in an affirmance of that judgment”). Therefore, even if we agreed with ALDOT that the trial court erred in determining that an outdoor advertising sign in an unzoned, nonurban area does not have to be located within 600 feet of regular commercial activity and in determining that the moving company used the concrete pad as part of its regular commercial activities, we would still be compelled to.affirm the trial court’s judgment because ALDOT has failed to present an argument concerning the trial court’s determination that the south-entrance driveway is part of the processing area of the moving company.

Because ALDOT has not challenged all the bases on which the trial court based its judgment, we must affirm the judgment of the trial court.

AFFIRMED.

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

      . At the same time, Reid also applied for a permit to erect an outdoor advertising sign at milepost 244.97, which ALDOT approved. That application is not at issue in this appeal.

      . Because we affirm the trial court’s judgment based on ALDOT’s failure to challenge all the bases for the trial court’s judgment, we express no opinion on the correctness of the trial court’s legal or factual determinations.


author: MOORE, Judge.

text:
    Robert WATSON v. LIFE INSURANCE COMPANY OF ALABAMA.
    2100357.
    Court of Civil Appeals of Alabama.
    June 24, 2011.

      Jason A. Shamblin of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for appellant.
    F. Michael Haney of Inzer, Haney & McWhorter, P.A., Gadsden, for appellee.
   MOORE, Judge.

Robert Watson appeals from a summary judgment entered by the Etowah Circuit Court (“the trial court”) on his claim of bad faith and on his request for damages for mental anguish against Life Insurance Company of Alabama (“LICOA”). We dismiss the appeal.

Procedural History

On June 4, 2009, Watson filed a complaint alleging claims of breach of contract and bad faith against LICOA. Specifically, he alleged, in pertinent part:

“3. On or about December 28, 1997, [LICOA] issued a Cancer Ultimate Policy (policy no. H680040) with a Daily Hospital Room and Board Rider and Radiation & Chemotherapy Rider insuring [Watson].
“5. According to the express terms of said policy, [LICOA] must pay the ‘actual charges’ for various treatments and services relating to cancer treatment of [Watson].
“6. The term ‘actual charges’ is specifically defined in the policy as ‘the actual charges made by a person or entity furnishing the services, treatment or material.’
“7. [Watson] was diagnosed with cancer in or around May 2008 and underwent treatment for cancer for several months following.
“8. [Watson] submitted numerous claims to [LICOA] for service, treatment and material in accordance with the policy.
“9. [LICOA] has failed or refused to pay [Watson’s] claims as required under said policy. In particular, [LICOA] has failed to pay the actual charges for services, treatments and materials prescribed by [Watson’s] physicians.”

Watson asserted that the breach of contract had caused him to suffer mental anguish and emotional distress. He requested compensatory damages for the breach of contract and punitive damages for the bad faith failure to pay.

On July 2, 2009, LICOA answered the complaint, and, on September 8, 2010, LI-COA filed a motion for a summary judgment on all claims asserted by Watson, along with evidentiary materials in support thereof. On November 5, 2010, Watson filed a brief and evidentiary materials in opposition to the summary-judgment motion. On November 12, 2010, the trial court entered an order granting LICOA’s motion for a summary judgment on Watson’s claim of bad faith failure to pay and on his request for damages for mental anguish and denying LICOA’s summary-judgment motion on Watson’s breach-of-contract claim. Although the summary-judgment order did not adjudicate all the claims between the parties, the trial court determined that there was no just reason for delay, and it directed the entry of a final judgment as to the claims disposed of by the partial summary judgment, pursuant to Rule 54(b), Ala. R. Civ. P. Watson filed his notice of appeal to the Alabama Supreme Court on December 17, 2010; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review
‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “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.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Facts

The facts of this case are undisputed. In 1997, Watson and his wife, Lavonne Watson, purchased from LICOA the “Cancer Ultimate” policy, including a radiation and chemotherapy rider, and LICOA issued the Watsons policy number H680040 (“the policy”). Hoyt Casey, the vice president over claims and reinsurance for LICOA, testified by deposition. Casey testified that the policy is a supplemental policy, which means that the benefits are paid directly to the insured regardless of whether the covered individual has health insurance. Lavonne Watson testified by deposition that, at the time they purchased the policy, a LICOA agent discussed the policy with her and used a handout to describe the policy. That handout provided, in pertinent part:

“RADIATION AND CHEMOTHERAPY — Pays 100% of actual charges, for Chemotherapy and Teleradiotherapy treatment to include X-Ray, Radium, and Cobalt for treatment of Cancer.”

The “RADIATION AND CHEMOTHERAPY BENEFIT RIDER” to the policy provided, in pertinent part:

“We will pay to a Covered Person actual charges not to exceed the amount stated in the Policy Schedule per calendar year, made for:
“1. Teleradiotherapy, using either natural or artificially propagated radiation, when used for the purpose of modi-fieation or destruction of abnormal tissue and not for diagnostic purposes;
“2. Interstitial or intracavitary application of radium or radioisotopes in sealed sources, application of radium or radioisotopic plaques or molds or the administration internally, interstitially or intracavitarially of radium or radioisotopes in non-sealed sources, all for the purpose of modification or destruction of abnormal tissue and not for diagnosis; and
“8. Cancericidal chemical substances and their professional administration for the purpose of modification or destruction of abnormal tissue, to the extent these charts are not covered under (Attending Physician Benefits).”

The policy defined the term “actual charges” as: “The actual charges made by a person or entity furnishing the services, treatment, or material.”

On September 22, 2004, LICOA sent Lavonne Watson a letter stating, in pertinent part:

“Due to the increase on your unlimited radiation and chemotherapy cancer plan, many policy holders are changing to our newest limited plan, the Ultimate III. The plan that you now have is just like the Ultimate III except for the unlimited radiation and chemotherapy. The Ultimate III pays up to 25,000 per calender [sic] year for the radiation and chemotherapy.
“If you have not been treated for Cancer in the last seven years, and can answer NO to the questions on the application we will allow you to change your old plan for this new plan the Ultimate III. If you decide to exchange your old plan for this new plan, please fill in all highlighted areas on the application and return in the enclosed envelope.”

The brochure for the Ultimate III policy states, in pertinent part:

“RADIATION AND CHEMOTHERAPY — You have the option to choose a benefit of □$25,000, n$20,000, D$15,-000, or □•$10,000 per calendar year. Pays 100% of usual and customary charges up to benefit selected for each covered person for Chemotherapy and Teleradiotherapy treatment to include X-Ray, Radium, and Cobalt for treatment of Cancer.”

The brochure defined “usual and customary charges” as

“the usual amount accepted as payment by a medical provider or entity furnishing the services, treatment, or material covered in the policy. Such charges shall not exceed the general level of charges made by others within the geographical area in which the services, treatment, or materials are rendered for an illness comparable in severity and nature. In no event will charges exceed the amount you are liable or legally responsible to pay. Usual and Customary Charges do not include any amounts that are written off, credited or discounted by the medical provider or entity.”

The Watsons declined to change policies.

On May 12, 2008, Watson underwent a biopsy. On May 14, 2008, LICOA sent a letter to Lavonne Watson stating, in pertinent part:

“The policy which you have provides certain benefits based upon actual charges made by medical providers. Medical billing practices can be very confusing as medical providers will issue bills which show a much larger amount than is actually accepted by the provider from Medicare or other medical insurers in full payment for that provider’s services. So as to avoid any possible confusion about the meaning of this provision, [LICOA] wants you to know that certain benefits determined under your policy are based upon the amounts actually accepted by the medical provider as payment in full for certain services.
“As you know, the benefits under the cancer insurance policy are paid directly to you. [LICOA] bases certain benefits upon the amount accepted by medical providers as payment in full for certain services, but not on amounts which are charged off, written off or not expected to be paid to the provider.”

On May 15, 2008, based on the May 12, 2008, biopsy, Watson was diagnosed with large B-cell lymphoma. He subsequently underwent treatment for lymphoma, including chemotherapy treatments, and submitted several claims to LICOA. LI-COA refused to pay the amount included on the bills from the medical providers, but, instead, paid Watson the amount that the medical providers had accepted as payment from Blue Cross and Blue Shield of Alabama, Watson’s health-insurance provider. Additionally, LICOA denied payment of Watson’s claims for benefits for certain “blood-builder” drugs that he was required to take subsequent to his chemotherapy treatments.

Casey testified that, at one point in time, the amounts stated on a medical provider’s bill and the amount that the provider actually charged and accepted as full payment were the same. He testified, however, that in 2001 LICOA discovered that the medical industry had changed its accounting practices so that a medical provider’s bill was actually greater than the amount that was actually charged and accepted as full payment. He testified that before it made that discovery in 2001, LICOA had required an insured to submit only the bill from the medical provider in support of a claim and that LICOA had paid the insured the amount billed. According to Casey, after 2001, LICOA began requiring additional documentation and would pay only the amount the medical provider accepted as full payment for its services. He testified that, before 2001, LICOA was overpaying benefits. Thus, the amount of benefits that LICOA paid decreased after 2001. He testified that, although the amount of benefits paid are tied to the amount of the premiums charged, the premiums on LICOA’s policies were not reduced in 2001. He testified that when the policies were developed, the premiums were based on what a person was actually being charged, not on an inflated amount that no one is expected to pay.

Casey testified that the policy was not amended in 2001, and LICOA did not send notice of the additional documentation requirements to its insureds. Casey testified that there was some confusion on the part of certain claimants when the change took place. He testified that LICOA dealt with those claimants on a case-by-case basis. He testified, however, that most people understand that it is commonplace in the medical industry that the amount billed and the amount that the provider is actually paid or charged are different. Casey testified that LICOA’s position is that charge means costs. He testified that if the medical provider does not expect the amount billed to be paid, then the provider is not charging that amount. He testified that in his opinion the Watsons’ interpretation of the term “actual charges” is not reasonable.

Casey testified that the first lawsuit against LICOA regarding the issue of the interpretation of the term “actual charges” was filed in 2004 in Alabama. He testified that that lawsuit was resolved out of court. He testified that he had given several depositions in cases on the issue of the interpretation of the term “actual charges.” Casey testified at his deposition that two other cases were currently pending against LICOA in Alabama concerning the issue and that no court had entered a judgment as a matter of law in favor of LICOA. He testified that most of the cases had been resolved out of court. Casey testified that the United States District Court for the Middle District of Alabama had determined that the term “actual charges” was not ambiguous in Claybrook v. Central United Life Ins. Co., 387 F.Supp.2d 1199 (M.D.Ala.2005). Casey also testified that the Alabama Department of Insurance had made an inquiry about LICOA’s interpretation of the term “actual charges” but that no action was taken.

Discussion

I.

On appeal, Watson first argues that the trial court erred in entering a summary judgment in favor of LICOA on the bad-faith-failure-to-pay claim because, he says, he submitted substantial evidence indicating that LICOA’s failure to pay 100% of his claims under the policy for the. actual charges made by his health-care providers established both a “normal” and an “abnormal” case of bad faith.

“This Court has defined ‘normal’ and ‘abnormal’ bad faith in the following manner:
“ ‘In the “normal” bad-faith case, the plaintiff must show the absence of any reasonably legitimate or arguable reason for denial of a claim. [State Farm Fire & Cas. Co. v.] Slade, 747 So.2d [293] at 306 [ (Ala.1999) ]. In the “abnormal” case, bad faith can consist of: 1) intentional or reckless failure to investigate a claim, 2) intentional or reckless failure to properly subject a claim to a cognitive evaluation or review, 3) the manufacture of a debatable reason to deny a claim, or 4) reliance on an ambiguous portion of a policy as a lawful basis for denying a claim. 747 So.2d at 306-07....
“ ‘ “ ‘Bad faith ... is not simply bad judgment or negligence. It imports a dishonest purpose and means a breach of a known duty, i.e., good faith and fair dealing, through some motive of self-interest or ill will.’ ” Slade, 747 So.2d at 303-04 (quoting Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916, 924 (Ala.1981)).’
“Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 283 (Ala.2005). In order to recover on a ‘normal’ bad-faith claim, the plaintiff must prove: ‘(1) the existence of an insurance contract; (2) an intentional refusal to pay the claim; and (3) the absence of any lawful basis for refusal and the insurer’s knowledge of that fact or the insurer’s intentional failure to determine whether there is any lawful basis for its refusal.’ Acceptance Ins. Co. v. Brown, 832 So.2d 1, 16 (Ala.2001). ‘For a “normal” bad-faith claim to be submitted to the jury, the underlying contract claim must be so strong that the plaintiff would be entitled to a preverdict judgment as a matter of law.’ Shelter Mut. Ins. Co. v. Barton, 822 So.2d 1149, 1155 (Ala.2001). However, ‘ “[t]he rule in ‘abnormal’ cases dispensed with the predicate of a preverdict JML [judgment as a matter of law] for the plaintiff on the contract claim if the insurer had recklessly or intentionally failed to properly investigate a claim or to subject the results of its investigation -to a cognitive evaluation.” ’ White v. State Farm Fire & Cas. Co., 953 So.2d 340, 348 (Ala.2006) (quoting Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 976 (Ala.1998)).”

Jones v. Alfa Mut. Ins. Co., 1 So.3d 23, 31-32 (Ala.2008).

With regard to the “normal” claim of bad faith, Watson argues that LICOA had no “reasonably legitimate or arguable reason for denial of [his] claim.” Before we address the merits of Watson’s argument, however, we must first determine whether the trial court properly certified the judgment as final. “An appellate court may raise the impropriety of a Rule 54(b), Ala. R. Civ. P., certification ex mero motu.” Allen v. Briggs, 60 So.3d 899, 903 (Ala.Civ.App.2010). “[A] Rule 54(b)[, Ala. R. Civ. P.,] certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘“are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ ” Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). “‘Breach of an insurance contract is an element of a bad-faith-failure-to-pay claim.’” Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 351 (Ala.2008) (quoting Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 564 (Ala.2005)). Therefore, in order for this court to determine whether the trial court properly entered a summary judgment on the “normal” claim of bad faith failure to pay, we would necessarily have to determine the merits of the breach-of-contract claim that is still pending before the trial court. Accordingly, we conclude that the “normal” bad-faith claim and the breach-of-contract claim “ ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ ” Schlarb, 955 So.2d at 419-20.

Watson also argues that he established an “abnormal” bad-faith claim because, he says, LICOA is relying on an ambiguous term in the policy — “actual charges” — as a lawful basis for its refusal to pay his full claim. See White v. State Farm Fire & Cas. Co., 953 So.2d 340, 349 (Ala.2006) (“[I]n an ‘abnormal’ case [of bad faith], [an insurance company] cannot use ambiguity in the contract as a basis for claiming a legitimate or arguable reason for not paying the claim.”). We note, however, that, whether a contract is ambiguous is the threshold issue in a breach-of-contract claim. Avis Rent A Car Systems, Inc. v. Heilman, 876 So.2d 1111, 1121 (Ala.2003). Thus, in order to determine whether the term “actual charges” is ambiguous, this court would have to determine the threshold issue in a claim that is still pending before the trial court. Accordingly, we also conclude that the “abnormal” bad-faith claim and the breach-of-contract claim “ ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ ” Schlarb, 955 So.2d at 419-20.

Based on the foregoing, we conclude that the trial court erred to the extent that it certified its summary judgment on Watson’s claim of bad faith failure to pay as final.

II.

Watson also argues that the trial court erred in entering a summary judgment on his request for mental-anguish damages on his breach-of-contract claim because, he says, under Alabama law, he may recover damages for the mental anguish he suffered as a consequence of LI-COA’s breach of the policy. As noted previously, although “[n]either party has raised the issue of the appropriateness of the trial court’s Rule 54(b)[, Ala. R. Civ. P.,] certification of its [November 12, 2010], summary-judgment order[,] .... this court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is jurisdictional.” Gregory v. Ferguson, 10 So.3d 596, 597 (Ala.Civ.App.2008).

“[CJertification of a decision addressing only the type of damages recoverable on a certain claim is inappropriate. Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999). Although Rule 54(b)[, Ala. R. Civ. P.,] permits the ‘entry of a final judgment as to one or more but fewer than all of the claims or parties,’ it does not permit the trial court to make final an order that does not dispose of an entire claim. Haynes, 730 So.2d at 181.”

Hurst v. Cook, 981 So.2d 1143, 1150 (Ala.Civ.App.2007). Because the trial court denied LICOA’s summary-judgment motion as to Watson’s breach-of-contract claim and granted the motion as to Watson’s request for damages for mental anguish based on LICOA’s breach of the contract, the summary judgment does not dispose of the entirety of Watson’s breach-of-contract claim. Accordingly, we conclude that the trial court also erred in certifying its summary judgment on Watson’s request for mental-anguish damages as final. Hurst, 981 So.2d at 1158.

Conclusion

Based on the foregoing, we conclude that the trial court “exceeded its discretion in certifying the partial summary judgment as final. ‘A nonfinal judgment will not support an appeal.’ ” Schlarb, 955 So.2d at 420 (quoting Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004)). Consequently, we dismiss the appeal as being from a nonfinal judgment. Schlarb, supra.

APPEAL DISMISSED.

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

      . Casey testified that both types of cancer insurance policies offered by LICOA at that time provided that "actual charges” would be used to determine benefits.

      . Casey admitted that LICOA replaced the term "actual charges” with "usual and customary charges” in its policies and that, presently, it offers only indemnity-based products.

      . Watson testified that the “blood-builder drugs” were deemed a part of the chemotherapy treatment by the doctors and by Blue Cross and Blue Shield of Alabama. Casey, on the other hand, testified that certain services and drugs within chemotherapy treatments, including the blood-builder drags, are not covered under the policy.


author: PER CURIAM. KELLUM, Judge,

text:
    Kenneth James JACKSON v. STATE of Alabama.
    CR-10-0069.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2011.
    Rehearing Denied April 15, 2011.
    Certiorari Denied June 10, 2011 Alabama Supreme Court 1100869.
    Kenneth James Jackson, pro se.
    Troy King and Luther Strange, attys. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., and WINDOM, J„ concur. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Kenneth James Jackson’s fifth Rule 32, Ala. R.Crim. P., petition challenging his 1991 conviction for capital murder and his resulting sentence of life imprisonment without the possibility of parole. I believe that allowing Jackson to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Jackson and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: WELCH, Presiding Judge.

text:
    Kevan MATHEWS v. STATE of Alabama.
    CR-09-1664.
    Court of Criminal Appeals of Alabama.
    March 25, 2011.
    Rusty Pigott, Foley, for appellant.
   WELCH, Presiding Judge.

The appellant, Kevan Mathews, was convicted of first-degree unlawful manufacture of a controlled substance, a violation of § 13A-12-218, Ala.Code 1975, second-degree possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975, and unlawful possession of drug paraphernalia, a violation of § 13A-12-260(c), Ala.Code 1975. For his conviction for the manufacture of a controlled substance, the trial court sentenced Mathews to 20 years’ imprisonment and ordered Mathews to pay a $500 fine, a $500 victims’ compensation assessment, a $1,000 drug demand reduction assessment, a $100 forensic fee, and courts costs and attorney’s fees. For his possession-of-marijuana conviction and his possession-of-drug-paraphernalia conviction, the trial court sentenced Mathews to one year in jail and ordered him to pay a $25 victims’ compensation assessment, a $100 forensic fee, and courts costs. The trial court ordered that these sentences run concurrently with his 20-year sentence.

Mathews’s appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which he states that, after viewing the entire record, he has found no meritorious issues to present on appeal. Mathews has filed no points or issues himself for this Court to consider. We have reviewed the record and can find no issue with regard to Mathews’s convictions that warrants review on appeal. However, we must remand this case for the trial court to set aside that part of its order imposing a $1,000 fine pursuant to the Drug Demand Reduction Assessment Act, § 13A-12-281(a), Ala.Code 1975, which provides:

“In addition to any disposition and fine authorized by Sections 13A-12-202, 13A-12-203, 13A-12-204, 13A-12-211, 13A-12-212, 13A-12-213, 13A-12-215, and 13A-12-231, or any other statute indicating the dispositions that can be ordered for such a conviction or an adjudication of delinquency, every person convicted of, or adjudicated delinquent for, a violation of any offense defined in the sections set forth above, shall be assessed for each such offense an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders.”

As this Court stated in O’Callaghan v. State, 945 So.2d 467, 479 (Ala.Crim.App.2006): “This section does not authorize an additional penalty for persons convicted of violating § 13A-12-218, as [the appellant] was.”

Therefore, although we affirm Mathews’s convictions, this cause is due to be and is hereby remanded for the trial court to set aside its imposition of the $1,000 fine pursuant to § 13A-12-281, Ala.Code 1975. Due return shall be filed with this Court within 21 days of the date of the opinion.

AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING .

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Leo WYRE, Jr. (In re State of Alabama v. Leo Wyre, Jr.).
    CR-10-0773.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.

      Leo Wyre, Jr., pro se.
   PER CURIAM.

The petitioner, Leo Wyre, Jr., filed this petition for a writ of mandamus requesting that we direct Judge Robert Wilters to grant Wyre’s in forma pauperis request so that he may file a postconviction petition in the Baldwin Circuit Court without prepaying the filing fee. In January 2011, Wyre filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P., in the Baldwin Circuit Court attacking his 2009 convictions for trafficking in cocaine, possessing marijuana, and possessing drug paraphernalia. The petition was accompanied by a request to proceed in forma pauperis (“IFP”). On January 26, 2011, Judge Wilters denied Wyre’s request for IFP status. Wyre then filed this petition for a writ of mandamus.

A petition for a writ of mandamus is the appropriate vehicle for reviewing a lower court’s ruling denying a request to proceed in forma pauperis. See Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997).

Wyre asserts that Judge Wilters erred in denying his IFP request because, he says, he had only 28 cents in his inmate account when he filed the request for indi-gency status and that the “average” of his monthly balances for the 12 months preceding the filing of the petition was only $30.74. He also argues that Judge Wilters erred in failing to make specific findings of facts as to why he denied Wyre’s IFP request.

In order to satisfy the prerequisites for the issuance of a writ of mandamus, the petitioner must establish: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996).

Currently, the fee for filing a post-conviction petition in the Baldwin Circuit Court is $249.50. Wyre’s inmate account summary shows that he had deposits totaling $876.52 to his inmate-account in the 12 months preceding the filing of the petition. Some months he made no deposits; other months deposits were as much as $216.

Rule 32.6(a), Ala. R.Crim. P., states, in pertinent part:

“If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the ‘In Forma Pauperis Declaration’ at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in for-ma pauperis.”

(Emphasis added.)

According to Rule 32.6(a), Ala. R.Crim. P., a court considering an indigency request may consider the deposits to a petitioner’s inmate account for the 12 months preceding the filing. In those months, Wyre had over two times the amount necessary to satisfy the filing fee deposited to his account. As this Court stated in Ex parte Holley, 883 So.2d 266 (Ala.Crim.App.2003):

“Holley’s affidavit of substantial hardship contains a summary of deposits to his inmate account for the last 12 months. The summary shows monthly balances as high as $185. The Alabama Rules of Criminal Procedure define ‘indigent’ as ‘a person who is financially unable to pay for his or her defense.’ Rule 6.3(a), Ala. R.Crim. P.[] We cannot say that Judge McCooey abused her discretion in finding that Holley fails to meet this definition.”

883 So.2d at 268-69. Wyre could have saved the money to pay the filing fee; thus, he is not indigent. Judge Wilters did not abuse his discretion in denying Wyre’s IFP request based on Wyre’s inmate-account activity.

Wyre further argues that the circuit court erred in failing to make specific written findings as to why it denied his IFP request. He cites Lucas v. State, 597 So.2d 759 (Ala.Crim.App.1992), and Rule 24(a), Ala. R.App. P., in support of his argument.

However, this Court in James v. State, 61 So.3d 357 (Ala.Crim.App.2010), reversed its decision in Lucas and stated:

“James argues that according to Lucas v. State, 597 So.2d 759 (Ala.Crim.App.1992), the circuit court erred because it failed to set out its reasons for denying the in forma pauperis request. He also cites Rule 24(a), Ala. R.App. P., in support of his argument that it was error for the circuit court not to make specific findings of fact when denying his request for indigency status.
“In Lucas this Court stated: ‘[T]he circuit court may require the payment of that docket fee if the petitioner is not in fact indigent and the finding of the circuit court to that effect is made a part of the record.’ 597 So.2d at 760. We did not hold that findings are mandatory or even necessary when denying a request for indigency status. Also, our decision in Lucas was modified by our subsequent decision in Goldsmith v. State, 709 So.2d 1852 (Ala.Crim.App.1997). In Goldsmith, we held that a petition for a writ of mandamus — rather than appeal — is the proper method of seeking review of a ruling of a request to proceed in forma pauperis.
“Also, Rule 24(a), Ala. RApp. P., states:
‘Leave to Proceed In Forma Pau-peris From Trial Court to Appellate Court. A party to an action in a court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 15 of the Appendix of Forms, the party’s inability to pay fees and costs or to give security therefor, the party’s belief that he or she is entitled to redress, and a statement of the issues which the party intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the trial court shall state in writing the reasons for the denial.’
“Rule 24(a), Ala. RApp. P., only applies when a person is seeking to proceed on appeal in forma pauperis. It does not apply to the initial filing of a request for indigency status in the circuit court.”

61 So.3d at 382-83.

In conclusion, we hold that an inmate who has appreciably more than the amount necessary to pay a filing fee deposited in his inmate account in the 12 months preceding the filing of an IFP request is not indigent as that term is defined in Rule 6.3(a), Ala. R.Crim. P. Wyre had $876.52 deposited to his account in that period— more than twice the amount necessary to pay the filing fee. Thus, he is not indigent. Moreover, the circuit court was not required to make findings of fact as to why it denied Wyre’s IFP request. See James. Wyre has failed to satisfy the heavy requirements for the issuance of a writ of mandamus; therefore, this petition for a writ of mandamus is denied.

PETITION DENIED.

WELCH, P.J., and WINDOM, KELLUM, BURKE, and JOINER, JJ„ concur.

      . Rule 6.3(a), Ala. R.Crim. P., defines "indigent” as "a person who is financially unable to pay for his or her defense.”


text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Corey ARRINGTON).
    CR-10-0634.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.

      Luther Strange, atty. gen., and Carrie E. Gray, asst, district atty., for petitioner.
    Barr Duane Younker, Jr., Montgomery, for respondent.
   PER CURIAM.

The district attorney for the Fifteenth Judicial Circuit filed this petition for a writ of mandamus requesting that we direct Judge William Shashy of the Montgomery Circuit Court to set aside his order granting Corey Arrington’s motion for a judgment of acquittal notwithstanding the verdict, to reinstate Arrington’s conviction, and to direct that he be sentenced in accordance with that conviction.

In February 2010, Arrington was indicted for violating the Community Notification Act (“the CNA”) by failing to notify the Montgomery County Sheriff of his intent to change his address within 30 days of moving, a violation of § 15-20-23, Ala. Code 1975. Before trial, Arrington moved to dismiss the charges against him because, he said, it was impossible for him to comply with the statute in that he had been evicted from his apartment for failing to pay rent. Judge Shashy denied that motion. A jury then convicted Arrington of violating the CNA. Arrington moved for a judgment of acquittal notwithstanding the jury’s verdict and argued that the CNA was unconstitutional as applied to him. The State responded that the circuit court was limited by Rule 20.1, Ala. R.Crim. P., to considering only issues involving the sufficiency of the evidence; therefore, it argued, Arrington’s motion should be denied. On January 27, 2011, Judge Shashy entered a lengthy order holding that the CNA, as applied to Ar-rington, was unconstitutional. Judge Shashy also set aside the jury’s verdict and dismissed the charges against Arring-ton. The State objected and moved that Judge Shashy reconsider his ruling. On February 1, 2011, the State filed this timely petition for a writ of mandamus challenging Judge’s Shashy’s ruling and moved that we stay the proceedings in the lower court. Pursuant to State v. Webber, 892 So.2d 869 (Ala.2004), we granted the State’s motion to stay the proceedings pending the resolution of this mandamus petition.

The district attorney argues that Judge Shashy exceeded the scope of Rule 20.8, Ala. R.Crim. P., by setting aside the jury’s verdict based on grounds other than the sufficiency of the evidence. It cites this Court’s opinion in State v. Grantland, 709 So.2d 1310 (Ala.Crim.App.1997), to support its argument.

Initially, we must determine if a petition for a writ of mandamus is the proper means of attacking Judge Shashy’s ruling. Over the past several years, the Alabama Supreme Court has limited the State’s right to seek mandamus review. See State v. Martin, 69 So.3d 94 (Ala.2011) (the State may not use mandamus to seek review of discovery ruling in postconviction proceedings unless the State “can demonstrate that an appeal will not provide an adequate remedy”); State v. Murphy, 39 So.3d 1045, 1048-49 (Ala.2009) (the State may not use mandamus to obtain review of a pretrial ruling granting a defendant’s motion in limine); Ex parte King, 23 So.3d 77 (Ala.2009) (the State may not use mandamus to seek review of a pretrial ruling denying the State’s motion in limine). Nonetheless, the Supreme Court has left undisturbed our holding in State v. Grant-land, that the State may use an extraordinary petition for a writ of mandamus to seek review of a circuit court’s ruling that the State believes exceeds the scope of Rule 20.3, Ala. R.Crim. P. See also Ex parte Nice, 407 So.2d 874, 876 (Ala.1981). This case is correctly before this Court by way of a petition for a writ of mandamus.

A challenge to the constitutionality of a statute has been described as an “affirmative defense.” Jefferson County Comm’n v. Edwards, 49 So.3d 685, 692 (Ala.2010). Rule 15.4(a), Ala. R.Crim. P., addresses pretrial motions related to defenses and states:

“A motion raising defenses or objections made before trial pursuant to this rule shall be determined before trial, unless the court for good cause orders that it be deferred for determination at the trial on the merits.”

The Committee Comments to this rule state the reasons for the adoption of this rule:

“Rule 15.4 requires that the pre-trial motion be determined by the court before trial, unless deferred for good cause until the trial. When the motion raises an issue better determined during the trial, it would be proper to defer the motion. For example, the question of venue may be ‘[one of] fact so entwined with the merits ... that a decision should not be made before trial but postponed until trial.’ United States v. Callahan, 300 F.Supp. 519, 522 (S.D.N.Y.1969). In Callahan, the defendants were charged with a conspiracy, and venue was allegedly based on the planning having been done in the county of trial. To prove venue, the planning of the crime would have to be shown. A ruling on the motion was properly deferred until the trial.
“On the other hand, the motion may raise only questions of law which would properly be decided by the court. The purpose of this rule is to dispose of defenses which may be determinative of the case, but which do not require a trial on the merits. Such determinations will reduce the expense of trial and, in appropriate cases, will permit the state a right of appeal under Rule 15.7; thus trial judges should determine pre-trial motions in advance of trial in all possible instances.
“This rule allows the judge to decide all issues of fact raised by the motion, which are not constitutionally required to be tried by a jury. Examples of such facts would be the waiver of constitutional rights, legality of searches, the presence of unauthorized persons in the grand jury room, and discrimination in the selection of the grand jurors. See United States v. Smyth, 104 F.Supp. 279 (N.D.Cal.1952), Shafer v. State, 214 Tenn. 416, 381 S.W.2d 254 (1964). See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), requiring a hearing on the question of competence to stand trial when that issue is raised by the evidence presented at trial.”

Rule 15.4, Ala. R.Crim. P., contemplates that a motion challenging the constitutionality of a statute be made and disposed of before trial. At that time, if the court finds a statute unconstitutional and dismisses the charges against a defendant, as was the situation in this case, the State has a remedy: It may file a pretrial appeal pursuant to Rule 15.7, Ala. R.Crim. P. However, once jeopardy has attached, the State no longer has a right to appeal. See State v. Maddox, 828 So.2d 946 (Ala.Crim.App.2001).

The Alabama Supreme Court has recognized that a Rule 15, Ala. R.Crim. P., motion may be disposed of after a verdict is entered if the court elected to take the motion under advisement. See Ex parte Dunn, 8 So.3d 935 (Ala.2008). In Dunn, the Supreme Court held that a circuit court had the authority to grant a motion to suppress and to set aside the jury’s guilty verdict because, it said, the court had specifically taken the motion to suppress under advisement without objection from the State. Here, the documents filed with this petition do not show that the court took the constitutionality of the CNA under advisement with the consent of the State. In fact, it appears that Arrington did not specifically challenge the constitutionality of the CNA until he filed his motion for a judgment of acquittal notwithstanding the jury’s verdict. Arrington’s pretrial motion to dismiss merely stated the following:

“On or about 11th of October 2009, the defendant was involuntarily and unexpectedly evicted for failure to pay rent (the defendant was, and is, unemployed) from the Peddler’s Inn, located at 4231 Mobile Highway, Montgomery, Alabama, his then-assigned and approved residence.
“Given the circumstances it was impossible for the defendant to comply with the statute.”

Once a jury verdict has been entered, a circuit court may set aside that verdict and vacate the charges only for the reasons set out in Rule 20.3, Ala. R.Crim. P. Rule 20.3, states in pertinent part: “After a verdict or the entry of a judgment of conviction, the defendant may move for a judgment of acquittal, or the court, on its own motion, may grant a judgment of acquittal.” Rule 20.1, Ala. R.Crim. P., lists the grounds which will support the motion:

“The court, on motion of the defendant stating the grounds therefor, or on its own motion, shall direct the entry of a judgment of acquittal as to any charged offense, or as to any lesser included offense, for which the evidence is insufficient to support a finding of guilty beyond a reasonable doubt.”

(Emphasis added.)

This Court in Grantland, in construing the scope of Rule 20.3, Ala. R.Crim. P., stated:

“Although Rule 20.3, Ala. R.Crim. P., clearly authorizes a trial judge to grant a motion for a judgment of acquittal after the jury has returned a guilty verdict, that rule does not permit a judge to enter a judgment of acquittal on grounds other than those provided for under Rule 20 generally. A motion for a judgment of acquittal tests the legal sufficiency of the evidence. Suttles v. State, 574 So.2d 1012 (Ala.Cr.App.1990); Metzger v. State, 565 So.2d 291 (Ala.Cr.App.1990); see, generally, Committee Comments, Rule 20.1, Ala. R.Crim. P. When presented with a challenge to the sufficiency of the evidence, the trial court, and any reviewing court, must accept the evidence presented by the state as true, must view that evidence in a light most favorable to the state, and must accord the state all legitimate inferences from the evidence. Rowe v. State, 662 So.2d 1227 (Ala.Cr.App.1995). Where there is legal evidence from which a jury could by fair inference find a defendant guilty, a trial judge should submit the case to the jury. Id. Moreover, where there is sufficient legal evidence to submit the case to the jury and the jury has considered that evidence and rendered its verdict, it is not proper for the trial court, or a reviewing court, to substitute its judgment for that of the jury. Winters v. State, 673 So.2d 786 (Ala.Cr.App.1995); Rowe, 662 So.2d 1227. It is not the function of the court to assess the credibility of witnesses, weigh the evidence, or substitute its judgment as to guilt or innocence for that of the jury. Porter v. State, 666 So.2d 106 (Ala.Cr.App.1995).”

709 So.2d at 1311-12.

Here, in granting Arrington’s motion for a judgment of acquittal notwithstanding the verdict, the circuit court specifically found that § 15-20-23, Ala.Code 1975, was impermissibly vague, and that, as applied to Arrington, it violated the Due Process and the Equal Protection Clauses of the United States and Alabama Constitutions. The circuit court’s ruling did not address the sufficiency of the evidence to convict Arrington; thus, it exceeded the scope of Rule 20.3, Ala. R.Crim. P.

Accordingly, we grant the State’s petition for a writ of mandamus and direct the circuit court to reinstate the jury’s guilty verdict and to sentence Arrington in accordance with the law.

PETITION GRANTED; WRIT ISSUED; STAY LIFTED.

WELCH, P.J., and WINDOM, . KELLUM, BURKE, and JOINER, JJ„ concur.

      . Section 15-20-23, Ala.Code 1975, states, in pertinent part:
      "If an adult criminal sex offender intends to transfer his or her residence to a different location, he or she shall submit a notice of intent to move to the sheriff of the county and the chief of police of the municipality in which he or she resides, and to the sheriff of the county and chief of police of the municipality to which he or she plans to move, if such are different, at least 30 days prior to moving to the new location.”

      . A motion to reconsider does not toll the State's time for filing a petition for a writ of mandamus. See Ex parte Sharp, 893 So.2d 571 (Ala.2003); Ex parte Thomas, 828 So.2d 952, 954 (Ala.2001); Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003).

      . An extraordinary petition must be filed within a presumptively reasonable time period. See Rule 21(a), Ala. R.App. P. The Alabama Supreme Court has held that in a criminal case the State has only seven days to file a timely petition for a writ of mandamus. See Rule 15.7(b), Ala. R.Crim. P.; Ex parte Sharp, 893 So.2d 571, 575 (Ala.2003).

      .This rule was adopted by the Alabama Supreme Court pursuant to the rule-making authority granted it by Art. VI, § 150, Ala. Const. 1901 (Off. Recomp.) (added by Amendment No. 328, § 6.11, Ala. Const.1901).

      . Rule 15.7, Ala. R.Crim. P., states, in pertinent part:
      “In any case involving a felony, a misdemeanor, or a violation, an appeal may be taken by the state to the Court of Criminal Appeals from a pre-trial order of the circuit court (1) suppressing a confession or admission or other evidence, (2) dismissing an indictment, information, or complaint (or any part of an indictment, information, or complaint), or (3) quashing an arrest or search warrant.”

      . Rule 15.3, Ala. R.Crim. P., states: "(a) Pretrial motions. A motion under Rule 15.2 must be made: (1) In circuit court at or before arraignment or by such later date as may be set by the court....”

      . We have stated:
      “[The constitutionality of the statute] is not properly before this Court because it was raised for the first time in Greer’s posttrial motion for a judgment of acquittal or, in the alternative, a new trial. A constitutional challenge to the regularity of proceedings preliminary to trial must be timely and is waived if raised for the first time in a post-trial motion. See DeFries [v. State], 597 So.2d [742] at 747 [ (Ala.Crim.App.1992) ].”

        Webster v. State, 900 So.2d 460, 472 (Ala.Crim.App.2004), rev’d on other grounds, Ex parte Stewart, 900 So.2d 475 (Ala.2004).

      . This Court recently held that the prior version of § 15-20-22(a), Ala.Code 1975, which required an inmate to furnish the Department of Corrections an actual address "at which he or she will reside” within 45 days of his release from prison, was unconstitutional as applied to the defendant, a homeless individual. See State v. Adams, [Ms. CR-08-1728, November 5, 2010] — So.3d-(Ala.Crim.App.2010). We also stated: "We do not hold that § 15-20-22(a)(l) always operates unconstitutionally or that there are no set of circumstances under which the statute would be valid.” -So.3d at-. See also McKenzie v. State, [Ms. CR-09-1451, December 17, 2010] - So.3d - (Ala.Crim.App.2010); Reese v. Oliver, 66 So.3d 289 (Ala.Crim.App.2010). In this case, it appears that after Arrington was evicted he moved in with his mother.
      Section 15-20-22(a), Ala.Code 1975, was amended effective May 21, 2009, to change the number of days from 45 to 180 and to state that the adult sexual offender must provide the "actual physical address” to the DOC. This Court in Reese v. Oliver, addressed the constitutionality of the current version of § 15-20-22(a), Ala.Code 1975.

      . Rule 26.2(b), Ala. R.Crim. P., states:
      "Upon a determination of guilt on any charge, or on any count or any charge, judgment pertaining to that count or to that charge shall be pronounced and entered together with the sentence. Pronouncement of judgment may be delayed if necessary until such time as sentence can be pronounced.”
      (Emphasis added.)