source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Tracie McKELVIN and Jerome McKelvin v. Doug SMITH.
    2090779.
    Court of Civil Appeals of Alabama.
    Dec. 10, 2010.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1100367.

      Phillip A. Gibson, Huntsville, for appellants.
    Michael L. Fees, Allen L. Anderson, and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for appellee.
   BRYAN, Judge.

Tracie McKelvin and Jerome McKelvin appeal from the dismissal of their claims alleging negligence and wantonness against Doug Smith. We reverse and remand.

The McKelvins sued several defendants, including Smith, alleging various claims based on an allegation of fire occurring at the McKelvins’ house. The complaint alleged that “[o]n [or] about February 10, 2008, the [McKelvins’] home was damaged by a fire due to a defective electrical junction box.” The complaint also alleged that Smith had negligently or wantonly failed to perform “a duty to inspect, investigate, [and/or] provide services regarding the electrical condition of the [McKelvins’] home.” Smith filed a motion to dismiss the claims against him or, alternatively, for a more definite statement. That motion sought a dismissal on the grounds that the complaint had failed to allege that Smith had any relationship with the McKelvins creating a duty to them and that Smith had not been properly served. The McKelvins and Smith agree that Smith, following the filing of the motion to dismiss, was served by personal service. The McKelvins subsequently filed an amended complaint that retained the same factual allegations against Smith.

After filing the amended complaint, Smith filed a second motion to dismiss or, alternatively, for a more definite statement. That motion to dismiss, filed pursuant to Rule 12(b), Ala. R. Civ. P., asserted that the claims against Smith should be dismissed because, he said, the complaint had failed to allege that Smith had any relationship with the McKelvins creating a duty “to inspect, investigate, [and/or] provide services regarding the electrical condition of the [McKelvins’] home.” Therefore, Smith asserted, the complaint failed to give him proper notice of the claims against him under Rule 8(a), Ala. R. Civ. P. Additionally, the motion to dismiss asserted that the claims against Smith were barred by the doctrine of substantive immunity. The trial court granted Smith’s motion to dismiss the claims against him, without specifying a reason for the dismissal. The trial court certified the dismissal order as a final judgment, pursuant to Rule 54(b), Ala. R. Civ. P. The McKel-vins then appealed to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

“ ‘The appropriate standard of review of a trial court’s [ruling on] a motion to dismiss is whether “when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [the pleader] to relief.” Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A “dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” Nance, 622 So.2d at 299; Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).’ ”

Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1017 (Ala.2003) (quoting Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003)).

In his second motion to dismiss, Smith moved for dismissal of the McKelvins’ claims against him based on his assertions that (1) those claims were insufficiently pleaded under Rule 8(a), Ala. R. Civ. P.; and (2) those claims were barred by the doctrine of substantive immunity. The trial court did not specify a basis for dismissing the claims against Smith. Therefore, we address in turn the two asserted grounds for dismissal before the trial court.

First, we address the McKelvins’ argument that the trial court erred by dismissing their negligence and wantonness claims against Smith because, they say, those claims satisfied the pleading requirements of Rule 8(a), Ala. R. Civ. P. Rule 8(a) provides:

“(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.”

“[T]he purpose of notice pleading is to provide defendants adequate notice of the claims against them.” Ex parte International Ref. & Mfg. Co., 972 So.2d 784, 789 (Ala.2007). See also Rule 8, Ala. R. Civ. P., Committee Comments on 1978 Adoption (“Under [Rule 8] the prime purpose of pleadings is to give notice.”). “Generally, the pleadings, in and of themselves, are considered relatively unimportant because cases are to be decided on the merits.” Johnson v. City of Mobile, 475 So.2d 517, 519 (Ala.1985).

“[Rule 8(a) ] is complied with if the claim for relief gives to the opponent fair notice of the pleader’s claim and the grounds upon which it rests. Carter v. Calhoun County Board of Education, 345 So.2d 1351 (Ala.1977). The discovery process bears the burden of filling in the factual details. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1215, p. 110 (1969). A fair reading and study of the Alabama Rules of Civil Procedure lead to the determination that pleading technicalities are now largely avoided and that the pleading of legal conclusions is not prohibited, as long as the requisite fair notice is provided thereby to the opponent.”

Mitchell v. Mitchell, 506 So.2d 1009, 1010 (Ala.Civ.App.1987). Furthermore, “pleadings are to be liberally construed in favor of the pleader.” Adkison v. Thompson, 650 So.2d 859, 862 (Ala.1994). See also Rule 8, Ala. R. Civ. P., Committee Comments on 1973 Adoption (“Rule 8(f)[, Ala. R. Civ. P.,] ... provides that the pleadings are to be construed liberally in favor of the pleader.”).

“[T]he dismissal of a complaint is not proper if the pleading contains ‘even a generalized statement of facts which will support a claim for relief under [Rule] 8, [Ala. R. Civ. P.]’ (Dunson v. Friedlander Realty, 369 So.2d 792, 796 (Ala.1979)), because ‘[t]he purpose of the Alabama Rules of Civil Procedure is to effect justice upon the merits of the claim and to renounce the technicality of procedure.’ Crawford v. Crawford, 349 So.2d 65, 66 (Ala.Civ.App.1977).”

Simpson v. Jones, 460 So.2d 1282, 1285 (Ala.1984).

In pertinent part, the amended complaint made the following allegations regarding Smith specifically:

“20. One day prior to the ... fire [at the MeKelvins’ home occurring on February 10, 2008], ... Smith and/or one or more of the fictitious party defendants had a duty to inspect, investigate, [and/or] provide services regarding the electrical condition of the [MeKelvins’] home.
“21. The Defendants negligently or wantonly failed to perform their duties.
“22. As a proximate result of the Defendants’ negligence or wantonness, the [MeKelvins] suffered damage to their home, their personal property, and have suffered and continue to suffer injuries, ill health, mental anguish and pain and suffering and are forced to live in a home which is damaged. As a result of their damages and injuries, the [MeKelvins] have incurred and will continue to incur medical bills and expenses for the repair of their home.”

Additionally, the amended complaint made the following general allegations that seem to refer to Smith, among others:

“The various Defendants attempted repairs to and/or inspections of, or made provision to have repairs or inspections performed to, the [MeKelvins’] home and knew or should have known of the defective condition of the home. The Defendants failed to make the necessary repairs to the home and/or failed to apprise the [MeKelvins] of the home’s defective and dangerous condition which caused the damage to the [McKelvins’] home.”

Smith argues that the complaint failed to allege facts demonstrating that he owed the McKelvins any duty, an essential element of both a negligence claim and a wantonness claim. See, e.g., Lilya v. Greater Gulf State Fair, Inc., 855 So.2d 1049, 1056 (Ala.2003). Therefore, Smith contends, the trial court properly dismissed the negligence and wantonness claims against him for the McKelvins’ failure to sufficiently plead those claims. Conversely, the McKelvins argue that their claims against Smith satisfy the notice-pleading requirements of Rule 8(a). We agree with the McKelvins. Although the complaint did not state in detail the alleged facts upon which the McKelvins based their claims against Smith, it did provide Smith with sufficient notice of those claims. The claims, in their brevity and plainness, are consistent with the example found in Form 16, Appendix I to the Alabama Rule of Civil Procedure, which has been approved by our supreme court. See Appendix I, Supreme Court Note. Form 16 provides:

“Form 16. Complaint for Negligence or Wantonness
“1. On or about the_day of_, upon a public highway [state the name of the street] in [City],_County, Alabama, the defendant negligently [or wantonly] caused or allowed a motor vehicle to collide with a motor vehicle occupied by the plaintiff.
“2. As a proximate consequence of the defendant’s said negligence [or wantonness], the plaintiff was caused to suffer the following injuries and damages:
“[enumerate injuries and damages]
“Wherefore plaintiff demands judgment against defendant in the sum of _dollars and costs.”

See also Phelps v. South Alabama Elec. Co-op, 434 So.2d 234, 237 (Ala.1983) (evaluating the sufficiency of a complaint alleging negligence and wantonness claims in relation to Form 16). We conclude that the McKelvins’ complaint adequately stated their claims against Smith under Rule 8(a) and that the trial court could not have properly dismissed those claims for failure to satisfy the requirements of that rule. See also Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651, 654-55 (Ala.1976) (stating that a complaint was sufficient under Rule 8(a) to put a defendant on notice even though there was no specific allegation of a duty owed).

Smith argues that his position on this issue is supported by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), a recent opinion issued by the United States Supreme Court. The United States Court of Appeals for the Third Circuit has observed that, under Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), “pleading standards [under the Federal Rules of Civil Procedure] have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). But see Arista Records, LLC v. Doe 3, 604 F.3d 110, 120-21 (2d Cir.2010) (characterizing Twombly and Iqbal as not having imposed a “heightened” pleading standard and “reject[ing the] contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible”); see also Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009) (understanding Twombly and Iqbal to say that the height of the pleading requirement depends on the circumstances of the case, such as the complexity of the litigation). However, as this court explained in Crum v. Johns Manville, Inc., 19 So.3d 208, 212 n. 2 (Ala.Civ.App.2009):

“The United States Supreme Court’s interpretation of the Federal Rules of Civil Procedure is not binding on this court’s interpretation or application of the Alabama Rules of Civil Procedure. Instead, this court is bound by the Alabama Supreme Court’s interpretation of our Rules of Civil Procedure. See Thomas v. Williams, [21] So.3d [1234, 1236] n. 1 (Ala.Civ.App.2008) (refusing to apply ... the Twombly [standard] on the basis that ‘[t]he Supreme Court of Alabama has the sole authority to promulgate rules governing practice and procedure in all Alabama courts’ and on the basis that, because ‘this court is bound by the precedent of our supreme court, ... we are unable to overrule prior caselaw in order to alter a well-settled standard of review’). Our supreme court has adopted the standard set forth in Conley v. Gibson, [355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ], for the dismissal of claims under Rule 12(b)(6), Ala. R. Civ. P. Until such time as our supreme court decides to alter or abrogate this standard, we are bound to apply it, the United States Supreme Court’s decision in Twombly, supra, notwithstanding.”

Accordingly, we will not consider the McKelvins’ claims against Smith in light of the Twombly and Iqbal decisions. See generally J. Thomas Richie & Anna Ma-nasco Dionne, Twombly and Iqbal: The Effect of the “Plausibility” Pleading Standard on Alabama Litigators, Alabama Lawyer (January 2010).

In moving to dismiss, Smith also asserted that the claims against him were barred by the doctrine of substantive immunity. Substantive immunity protects municipalities from tort liability for the acts of their employees “in those narrow areas of governmental activities essential to the well-being of the governed, where the imposition of liability can be reasonably calculated to materially thwart [a municipality’s] legitimate efforts to provide such public services.” Rich v. City of Mobile, 410 So.2d 385, 387 (Ala.1982). “[E]mployees participating in a municipal function that gives rise to substantive immunity would share in that immunity. Tutwiler Drug Co. v. City of Birmingham, 418 So.2d 102, 105 (Ala.1982).” Bill Salter Adver., Inc. v. City of Atmore, 79 So.3d 646, 653 (Ala.Civ.App.2010). In his second motion to dismiss, Smith asserted that he is employed by the City of Huntsville (“the City”) in the “inspection department.” The motion then asserted that “[i]t is only in his official capacity as a[n ... employee of the City] that Smith would have ever had an occasion to participate in any way in an inspection or investigation concerning the electrical condition of [the McKelvins’] home.” Based on those assertions, Smith contended that he was entitled to substantive immunity. See, e.g., Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991) (concluding that substantive immunity shielded a city from liability for the alleged negligent inspection of wiring at an apartment complex).

However, the McKelvins’ complaint does not allege that Smith was an employee of the City or that he was performing a municipal function when the alleged events giving rise to the McKelvins’ claims arose. We note that the McKelvins’ first complaint directed that Smith was to be served at the “Inspection Department, 320 Fountain Circle, Huntsville, AL 35801.” However, considering the actual allegations in the complaint, which we must view mostly strongly in the McKelvins’ favor, see Liberty Nat’l, supra, we cannot say that the McKelvins’ claims are barred by substantive immunity. That is, we cannot say that the McKelvins could not possibly prevail on their claims. It may be that Smith would be entitled to substantive immunity following the submission of evidence on that issue. However, this case comes before us on a motion to dismiss, not on a summary-judgment motion, and the bare allegations of the complaint do not support a conclusion that Smith is entitled to substantive immunity. Therefore, the trial court could not have properly dismissed the claims against Smith on the basis of substantive immunity. See Stout v. Cumse, 3 So.3d 878 (Ala.Civ.App.2008) (reversing a dismissal when the complaint failed to allege any facts that would support a dismissal based on State immunity).

In response to Smith’s second motion to dismiss, the McKelvins filed a motion to strike certain assertions made by Smith in his motion. The trial court did not rule on that motion. On appeal, the McKelvins briefly argue that the trial court erred by not granting their motion to strike. Because we are reversing the dismissal on the grounds discussed above, we pretermit discussion of the McKelvins’ argument for a reversal based on the trial court’s failure to grant the motion to strike.

In conclusion, we reverse the judgment dismissing the McKelvins’ claims against Smith, and we remand the case to the trial court.

REVERSED AND REMANDED.

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

      . We note that Rule 9(b), Ala. R. Civ. P., qualifies the generalized pleadings permitted by Rule 8(a) by requiring that fraud be alleged "with particularity.”

      . In Iqbal, the United States Supreme Court explained:
      "As the Court held in [Bell Atlantic Corp. v.] Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 [ (2007) ], the pleading standard Rule 8[, Fed.R.Civ.P.,] announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id.., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers 'labels and conclusions’ or 'a formulaic recitation of the elements of a cause of action will not do.' 550 U.S., at 555, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders 'naked assertion[s]’ devoid of 'further factual enhancement.’ Id., at 557, 127 S.Ct. 1955.
      "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief.” ' Id., at 557, 127 S.Ct. 1955 (brackets omitted).”
      556 U.S. at 678, 129 S.Ct. at 1949.


author: THOMAS, Judge.

text:
    Forrest McCAUGHN v. ALABAMA STATE BOARD FOR REGISTRATION OF ARCHITECTS and National Council of Architectural Registration Boards.
    2091122.
    Court of Civil Appeals of Alabama.
    Jan. 14, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1100499.

      Thomas R. Boiler, Mobile, for appellant.
    Troy King, atty. gen., and Billington M. Garrett and Tori L. Adams, asst, attys. gen., for appellee the Alabama State Board for Registration of Architects.
    Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O’Neal LLP, Mobile, for appellee the National Council of Architectural Registration Boards.
   THOMAS, Judge.

Forrest McCaughn appeals from the circuit court’s summary judgments in favor of the Alabama State Board for Registration of Architects (“the Board”) and the National Council of Architectural Registration Boards (“NCARB”). We dismiss the appeal in part and affirm the summary judgment in favor of NCARB.

Facts and Procedural History

McCaughn desires to practice architecture in the State of Alabama. The practice of architecture is governed by § 34-2-30 et seq., Ala.Code 1975 (“the Act”). Pursuant to § 34-2-33(b), Ala.Code 1975, the Board has the authority to issue to an applicant a “certifícate of registration as an architect” upon completion of certain requirements. Pursuant to the Act, McCaughn is required to pass an examination in order to receive a certifícate of registration as an architect. Section 34-2-33(a) gives the Board the authority to “contract with an independent testing agency to prepare, grade, or conduct the examination.” In support of its motion for a summary judgment, NCARB presented the affidavit of Erica J. Brown, who is employed by NCARB as its “Director, Architect Registration Examination.” Brown’s affidavit indicated that the Board had contracted with NCARB and that NCARB was authorized by the Board: (1) to administer the Architect Registration Examination (“ARE”), an examination developed by NCARB; (2) to score the exams; and (3) to report the scores to the Board.

NCARB is a nonprofit corporation whose membership consists of the architectural registration boards of all 50 states, the District of Columbia, Guam, Puerto Rico, and the United States Virgin Islands. The ARE has been adopted as the sole licensing examination for architects by all NCARB’s members. NCARB has a board of directors consisting of 14 members; the Board’s executive director has been a member of NCARB’s board of directors since July 2008, and her term will expire in June 2011. NCARB’s policies and procedures, including its testing procedures, are set by majority vote of its board of directors and/or its members. NCARB’s executive staff controls the day-to-day activities of NCARB and reports to NCARB’s board of directors.

The ARE consists of numerous parts known as divisions; those divisions need not be passed at the same time. Since its inception the ARE has been continuously updated. McCaughn first passed a division of the ARE in 1996, at which time the ARE consisted of nine divisions administered in a paper-and-pencil format. In 1997, NCARB transitioned the ARE to be administered via computer. In February 2006, NCARB introduced ARE 3.1. ARE 3.1 consisted of nine divisions, six of the nine divisions were solely comprised of multiple choice questions and the remaining three divisions were solely comprised of graphic vignettes requiring the ARE 3.1 examinee to create solutions using computer-aided design tools.

In August 2004, NCARB announced that it was adopting a “rolling-clock” policy for the ARE, which would go into effect on January 1, 2006. NCARB’s announcement concerning the adoption of the rolling-clock policy stated:

“For applicants who have passed one or more [divisions] but not all of the ARE by January 1, 2006, such applicants shall have five years to pass all remaining divisions. A passing grade for any remaining divisions shall be valid for five years, after which time the division must be retaken if the remaining divisions have not been passed. The five-year period shall commence after January 1, 2006, on the date when the first passed division is administered.”

As of March 2007, McCaughn had passed five of the nine divisions of ARE 3.1. McCaughn had not passed the “Building Technology” division of ARE 3.1, which consisted of six graphic vignettes.

In March 2007, NCARB announced that it had updated the ARE again and that it would begin administering ARE 4.0 on July 1, 2008. Among other changes, ARE 4.0 abolished the Building Technology division of ARE 3.1 and incorporated the graphic vignettes of that division into four other divisions. As a result, an examinee that had not passed the Building Technology division of ARE 3.1 would be required to take four divisions of ARE 4.0 in its place because the graphic vignettes of the Building Technology division of ARE 3.1 had been redistributed among those four separate divisions in ARE 4.0. Therefore, examinees who had passed certain divisions of ARE 3.1 would be retested on some of the same subject matter under ARE 4.0. In fairness to the examinees who had already passed at least one division of ARE 3.1, NCARB allowed those examinees to continue taking ARE 3.1 through June 2009, at which time the ex-aminee would be transitioned to ARE 4.0 if the examinee had not passed all nine divisions of ARE 3.1. NCARB posted all of this information on its Web site in March 2007. NCARB also notified applicants of the transition to ARE 4.0 by direct mailings. In fact, NCARB sent McCaughn five direct mailings concerning the transition to ARE 4.0 between April 4, 2007, and June 4, 2009.

NCARB did not seek or request permission from the Board before making changes to the ARE.

McCaughn failed to pass all nine divisions of ARE 3.1, most notably the Building Technology division, by June 2009, and was transitioned to ARE 4.0. Thus, McCaughn was required to take the four divisions of ARE 4.0 that contained the six graphic vignettes of the Building Technology division of ARE 3.1. This resulted in McCaughn’s being retested on certain subject matter. According to NCARB’s rolling-clock policy and Brown’s affidavit, McCaughn passed a division of ARE 3.1 on November 25, 2008, giving him five years from that date to pass the remaining divisions of the ARE, whether it be ARE 3.1 or ARE 4.0.

In a letter from the Board to McCaughn, dated November 4, 2009, the Board stated:

“The members of the Aabama Board of Achitects met with you on October 21, 2009, to consider questions you have about the NCARB examination and administration policies. You presented options for the Board to consider.
“In response, the Board has reviewed applicable policies and procedures related to administration of the Achitects Registration Examination, the NCARB rolling clock, and the transition from ARE 3.1 to ARE 4.0. Ater review and discussion, it is the Board’s opinion that you had the same access to the ARE and the above policies as any other exam candidate. For this reason, no additional action will be taken by the Board.”

McCaughn filed a declaratory-judgment action against the Board and NCARB on January 28, 2010, seeking an adjudication of his rights under the Act as an applicant to the Board. Specifically, McCaughn alleged that he “should be allowed to satisfy the requirements of ARE version 3.1 within five years of [January 1, 2006,] or within 18 months of this court’s order....” McCaughn also sought an injunction against the Board and NCARB seeking to enjoin them “from modifying or limiting the ‘rolling clock’ for less than a five year period commencing [January 1, 2006].” McCaughn also alleged that NCARB was an agent of the Board.

NCARB filed an answer on March 26, 2010, in which it alleged that McCaughn’s complaint should be dismissed for failure to state a claim upon which relief can be granted. The Board filed a motion to dismiss McCaughn’s complaint pursuant to Rule 12(b), Ala. R. Civ. P., which the trial court denied on March 29, 2010.

On April 1, 2010, NCARB filed a motion for a summary judgment, in which it argued that it is not an agent of the Board and, thus, that it was “not properly named as a defendant.” NCARB further argued that, even if it were a proper defendant, it had not acted “unreasonably, arbitrarily, or capriciously” in changing its policies and procedures.

On April 9, 2010, the Board answered McCaughn’s complaint. On April 13, 2010, the Board filed a motion for a summary judgment arguing that McCaughn had “failed to timely appeal the Board’s decision requiring [McCaughn] to take [ARE 4.0]” and that the Board’s decision to contract with NCARB was not unreasonable, arbitrary, or capricious.

McCaughn filed an opposition to both the Board’s and NCARB’s motions for a summary judgment on June 22, 2010.

The circuit court, without stating its reasons for doing so, granted the Board’s and NCARB’s motions for a summary judgment on June 28, 2010.

On July 27, 2010, McCaughn filed a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. The circuit court denied McCaughn’s postjudgment motion on July 28, 2010. McCaughn appealed to our supreme court. On September 1, 2010, our supreme court entered an order determining that “this cause is within the appellate jurisdiction of the Court of Civil Appeals” and transferring the cause to this court.

Standard, of Review

“ ‘In reviewing the disposition of a motion for summary judgment, we utilize the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact’ and whether the movant was entitled to a judgment as a matter of law. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala.1999). Further,

“[w]hen the trial court does not give specific reasons for entering a summary judgment, we will affirm the judgment if there is any ground upon which the judgment could have been based. Yarbrough v. C & S Family Credit, Inc., 595 So.2d 880, 881 (Ala.1992).”

McCloud v. City of Irondale, 622 So.2d 1272, 1273 (Ala.1993).

Discussion

As a threshold matter, we note that the Board is an agency of the State of Alabama. State By and Through State Bd. for Registration of Architects v. Jones, 289 Ala. 353, 356, 267 So.2d 427, 428 (1972). In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 841 (Ala.2008), our supreme court held that “only State officers named in their official-'capacity — and not State agencies — may be defendants in [declaratory-judgment] proceedings.” See also State Bd. of Educ. v. Mullins, 31 So.3d 91, 97 (Ala.2009).

In Alabama Department of Corrections v. Montgomery County Commission, 11 So.3d 189, 191-92 (Ala.2008), our supreme court stated:

“Section 14, Ala. Const. 1901, provides: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ (Emphasis added.) ‘The wall of immunity erected by § 14 is nearly impregnable.’ Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Indeed, as regards the State of Alabama and its agencies, the .wall is absolutely impregnable. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (‘Section 14 affords absolute immunity to both the State and State agencies.’); Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala.2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala.2007) (same); [Ex parte Alabama Dep’t of Transp. (In re Good Hope Contracting Co. v. Alabama Dep’t of Transp.), 978 So.2d 17 (Ala.2007)] (same); Ex parte Alabama Dep’t of Transp., 764 So.2d 1263, 1268 (Ala.2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala.1992) (same). ‘Absolute immunity’ means just that — the State and its agencies are not subject to suit under any theory.
“ ‘This immunity may not be waived.’ Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a ‘jurisdictional bar.’ Ex parte Alabama Dep’t of Transp., 985 So.2d 892, 894 (Ala.2007). The jurisdictional bar of § 14 simply ‘preelud[es] a court from exercising subject-matter jurisdiction’ over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala.2003).”

Consequently, the Board in the present case is absolutely immune from suit under § 14, Ala. Const. 1901. Harbert, 990 So.2d at 841. The trial court was without jurisdiction over the Board, and the Board is due to be dismissed as a party. Thus, as to the Board, the appeal is dismissed.

Concerning NCARB, McCaughn argues on appeal that NCARB is an agent of the Board. Based on NCARB’s allegedly operating as an agent of the Board, McCaughn appears to argue that NCARB should be treated as a state agency under the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 (“the AAPA”). Specifically, McCaughn appears to argue that NCARB’s change in its testing procedures was tantamount to a state agency’s adopting a new “rule,” as defined in § 41-22-3(9), Ala.Code 1975, and that NCARB’s alleged adoption of a new rule did not comply with § 41-22-4(b), Ala. Code 1975, which states:

“No agency rule, order, or decision shall be valid or effective against any person or party nor may it be invoked by the agency for any purpose until it has been made available for public inspection and indexed as required by this section and the agency has given all notices required by Section 41-22-5. This provision is not applicable in favor of any person or party who has actual knowledge thereof, and the burden of proving such knowledge shall be on the agency.”

McCaughn’s legal argument concerning whether NCARB is an agent of the Board is scant. McCaughn argues only that “[a]gency is typically a question of fact. Tuders v. Kell, 739 So.2d 1069 (Ala.1999),” and that “[sjummary judgment on the question of agency was not appropriate.”

In Dickinson v. City of Huntsville, 822 So.2d 411, 416 (Ala.2001), our supreme court set forth the well established test for agency:

“ ‘ “The test for agency is whether the alleged principal has retained a right of control over the actions of the alleged agent.” ’ Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1241 (Ala.2001) (quoting Gist v. Vulcan Oil Co., 640 So.2d 940, 942 (Ala.1994)).... The party asserting the existence of an agency relationship has the burden of presenting sufficient evidence to prove the existence of that relationship. See Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala.1994)). Agency may not be presumed. Ex parte Wild Wild West Social Club, 806 So.2d at 1242 (citing Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala.1988)). The plaintiff must present substantial evidence of an agency relationship. Id.”

“Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Id. at 414-15 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

On appeal, McCaughn does not point to any evidence indicating that there is a genuine issue of material fact concerning whether an agency relationship existed between the Board and NCARB. The record indicates that NCARB’s policies and procedures concerning the ARE were set by a majority vote of its board of directors and/or its members. There is nothing in the record to indicate that the Board had any influence, apart from its membership in NCARB, over the policies and procedures of NCARB. Our review of the record shows that McCaughn failed to produce substantial evidence indicating that the Board had the control over NCARB necessary to show that an agency relationship existed. Thus, McCaughn has failed to meet his burden of proving that an agency relationship existed between the Board and NCARB. We therefore conclude that the circuit court properly entered a summary judgment in favor of NCARB concerning whether an agency relationship existed between the Board and NCARB.

Based on our holding that the circuit court properly entered a summary judgment in favor of NCARB concerning whether an agency relationship existed between the Board and NCARB, we necessarily conclude that the AAPA does not apply to NCARB and its policies and procedures. Therefore, we need not consider whether NCARB’s adoption of new policies and procedures concerning the ARE complied with § 41-22-4(b) of the AAPA because the AAPA does not apply to NCARB.

Conclusion

Based on the foregoing, we dismiss the appeal in part as to the Board, and we affirm the circuit court’s summary judgment in favor of NCARB.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

      . Because this appeal is being dismissed as to the Board, we will not address McCaughn’s argument in his appellate brief concerning the Board.


text:
    Jane BRADFORD v. Gwendolyn BRADY, as the administratrix of the estate of Jean B. Arnold.
    2100203.
    Court of Civil Appeals of Alabama.
    April 15, 2011.
    Rehearing Denied July 15, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101247.

      Jesse P. Evans III of Haskel Slaughter Young & Rediker, LLC, Birmingham; and John Bahakel, Hoover, for appellant.
    James S. Ward and Kenneth Joe Wilson, Jr., of Ward & Wilson, LLC, Birmingham, for appellee.
   THOMAS, Judge.

In 1959, Henry Black and his wife, Effie Black, conveyed a parcel of land (“the parcel”) to A.W. Arnold and his wife, Jean B. Arnold. The deed conveyed to both A.W. and Jean an undivided one-half interest in the parcel; thus A.W. and Jean were tenants in common. In 1985, A.W. died intestate, leaving Jean as his surviving widow and seven children: Wilma Hud-gins, Sybil Hudgins, Arnold W. Arnold, Jr., Cheryl Creek, Jane Bradford, Lynn Hogan, and Gwendolyn Brady (hereinafter referred to collectively as “the children”). Pursuant to Ala.Code 1975, § 43-8^1, AW.’s property would have been divided between Jean and the couple’s seven children. The statute provides that, if the estate is worth over $50,000, the first $50,000 is left to the surviving spouse and the remaining estate is divided equally between the surviving spouse and the decedent’s children. § 43-8-41. It appears that A.W.’s estate was never probated, leaving unanswered questions regarding whether the estate was worth more or less than $50,000 and whether the parcel became Jean’s sole property or whether title to the parcel was jointly held by Jean and the children.

In February 1992, Jean and one of the children, Jane Bradford, desired to build a residence on the parcel. In order to use the parcel to secure the mortgage for the residence, Jean deeded the parcel to herself and Jane as joint tenants with the right of survivorship by warranty deed. That deed was executed on February 17, 1992. On March 31, 1992, Jane and the other six children executed a quitclaim deed releasing all right, title, and interest they may have had in the parcel to Jean. Jean died intestate in July 2007.

In 2009, Gwendolyn Brady, as adminis-tratrix of Jean’s estate, sued Jane and the other children seeking to quiet title in the parcel in the estate. Jane answered the complaint and counterclaimed, seeking to have the trial court declare that she owned the parcel or, in the alternative, that she was entitled to an equitable interest in the parcel because of moneys that Jane had expended in making improvements to the parcel, in maintaining the parcel, and for taxes and mortgage payments related to the parcel and the residence on the parcel. Brady later amended her complaint, seeking to eject Jane from the parcel and seeking a judgment declaring the rights of ownership to the parcel.

At trial, Jane argued that she was the owner of the entire parcel by virtue of the intestate succession of A.W. or by virtue of the February 1992 deed based on the doctrine of after-acquired title. Brady argued that the March 1992 quitclaim deed that had been jointly executed by Jane and the other six children divested Jane of any right, title, or interest in the parcel that she had by virtue of intestate succession after A.W.’s death and any other right, title, or interest she may have acquired under the February 1992 deed from Jean. The trial court agreed that the effect of the March 1992 quitclaim deed was to divest Jane of any right, title, or interest in the property that she had had on that date and that the doctrine of after-acquired title did not apply to reinvest Jane with any right, title, or interest in the parcel superior to the right, title, or interest that she acquired as an heir to Jean’s estate. Thus, the trial court concluded that Jane, like the other six children, owned an undivided one-seventh interest in the parcel. From that judgment, Jane appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Jane maintains on appeal, as she did in the trial court, that she owns the parcel based either on the intestate succession of A.W. or on the doctrine of after-acquired title. As noted above, the evidence at trial did not reveal whether A.W.’s estate was probated and, in fact, supports the conclusion that it was not. The parties appear to have no knowledge as to whether A.W.’s estate was valued at or less than $50,000 or over $50,000, which fact would assist greatly in the determination whether, after A.W.’s death, title to the parcel was vested solely in Jean or whether Jean and the children held various undivided interests in the parcel. In any event, regardless of whether Jean received undivided title to the parcel or whether the title was held jointly by Jean and the children upon A.W.’s death, Jane’s argument that she is the sole owner of the parcel fails.

As explained above, in March 1992 Jane and the other six children executed a quitclaim deed in which they disclaimed all right, title, and interest in the parcel. A quitclaim deed conveys nothing more than what the grantor owns; however, to the extent the grantor holds good title to the property, a quitclaim deed is just as effective as a warranty deed to pass that title. Reid v. Southeastern Materials, Inc., 396 So.2d 667, 670 (Ala.1981). If, as Jane claims, Jean alone owned the parcel in February 1992 (before executing the February 1992 deed), then Jane would have had an undivided one-half interest in the parcel, as a joint tenant with Jean, and a survivorship interest in Jean’s one-half interest in the parcel by virtue of the February 1992 deed at the time she executed the quitclaim deed in March 1992. By executing that quitclaim deed, Jane would have relinquished the right, title, and interest she had acquired in the parcel by virtue of the February 1992 deed. Thus, as the trial court concluded, Jane would not have held any interest in the parcel after the March 1992 quitclaim deed.

Likewise, even had Jean not held sole title to the parcel and had Jane and the other children each held some undivided interest in the parcel as a result of intestate succession, the March 1992 quitclaim deed would have served to extinguish that interest in Jane and the other children and any other interest Jane might have acquired by virtue of the February 1992 deed. Simply put, by virtue of the operation of the March 1992 quitclaim deed, Jane no longer had any interest in the parcel after March 31, 1992. We conclude, therefore, that the trial court’s determination that Jane did not hold a superior title to the parcel by virtue of intestate succession is correct.

Jane’s argument that the doctrine of after-acquired title operates to vest title in the parcel solely in her meets the same fate. She argues that the doctrine applies in this case to cause the March 1992 quitclaim deed to cure any defects in Jean’s title at the time of the execution of the February 1992 deed to Jean and Jane and, thus, that title to the parcel vested entirely in Jane on Jean’s death by virtue of the survivorship provisions in the February 1992 deed. We agree with the trial court that the doctrine has no application here.

The doctrine of after-acquired title is well established. See Kelley v. Kelley, 435 So.2d 214 (Ala.1983); Cobbs v. Union Naval Stores Co., 202 Ala. 333, 80 So. 415 (1918); State v. Mobile & Ohio R.R., 201 Ala. 271, 78 So. 47 (1918); and Schaeffer v. Maddox, 794 So.2d 1139 (Ala.Civ.App.2000). The doctrine has often been described as operating by estoppel. Dominex, Inc. v. Key, 456 So.2d 1047, 1058 (Ala.1984) (“The chief theory upon which the doctrine rests is that the deed operates on the after-acquired title by way of an estoppel.”); Schaeffer, 794 So.2d at 1143 (quoting Harkins & Co. v. Lewis, 535 So.2d 104, 113 (Ala.1988)) (indicating that the doctrine operates “ ‘by way of estop-pel’ ”).

“It operates to estop a grantor, who executes a deed purporting to convey land to which he has no title or to which he has a defective title at the time of the conveyance, from claiming in opposition to the deed as against the grantee or any person claiming title under him, when such grantor afterward acquires good title to the land.”

Dominex, Inc., 456 So.2d at 1058.

Jane argues that, if Jean did not have good and sole title to the parcel in February 1992 (before executing the February 1992 deed), the March 1992 quitclaim deed executed by Jane and the other children operated, under the doctrine, to grant Jean and Jane perfected title under the February 1992 deed by the relinquishment of all other interests that may have prevented perfect title in Jean at the time the February 1992 deed was executed. Jane bases her argument on her assertions that the March 1992 quitclaim deed had as its purpose to clear Jean’s title to the parcel as part of the set of circumstances leading to the execution of the mortgage on the parcel to secure the loan for the residence that Jean and Jane built on the parcel. Jane relies on the principle that whether the doctrine applies “hinges on exactly what interests [Jean] intended to convey [in the February 1992 deed], and, in fact, conveyed by that instrument.” Harkins & Co. v. Lewis, 535 So.2d at 114. Our supreme court indicated that, if the deed was ambiguous, the trial court could “look[] beyond the ‘four corners’ of the instrument in order to discern the intent of the grantors.” Lewis, 535 So.2d at 114. Thus, Jane says, the fact that the March 1992 quitclaim deed was, according to Jane, intended to clear up Jean’s title should result in the application of the doctrine of after-acquired title in the present case. Certainly, although Jane’s explanation of the circumstances surrounding the execution of the February 1992 deed and the execution of the March 1992 quitclaim deed is plausible, the timing of the two deeds was such that, even if the March 1992 quitclaim deed had been intended to clear any impediments to perfect title in Jean so that she could convey the parcel to herself and Jane as joint tenants with rights of survivorship, it failed to do so.

This is so because “[t]he doctrine whereby a deed may operate to pass an after-acquired title applies only where the acquisition is of a title outstanding and adversely held and not to one subsequently acquired from the grantee of the prior deed.” Bailey v. Selden, 124 Ala. 403, 408, 26 So. 909, 912 (1899). Thus, Jane’s actions as a grantor of the March 1992 quitclaim deed (the subsequent deed in this scenario) in relinquishing any right, title, or interest that might have existed in her by virtue of intestate succession could not have perfected Jean’s title so that Jane, as grantee of the February 1992 deed (the prior deed in this scenario), could have acquired perfected title from Jean. In addition, the effect of the March 1992 quitclaim deed, as noted above, was to relinquish all Jane’s right, title, and interest in the parcel that existed at the time of the execution of the March 1992 quitclaim deed; thus, it would also have served to relinquish any right, title, or interest Jane may have acquired under the February 1992 deed, even had Jean’s title been perfected by the March 1992 quitclaim deed by virtue of the application of the doctrine. Thus, Jane’s argument fails, and the March 1992 quitclaim deed and the February 1992 deed do not accomplish what Jane believes they do.

The trial court correctly concluded that Jane did not solely own the parcel under either theory she advanced. Thus, we affirm the judgment of the trial court.

AFFIRMED.

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

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

      . The deed encompassed an adjoining parcel of property; however, the ownership of that parcel is not in dispute and is not an issue in this appeal.


author: PITTMAN, Judge.

text:
    ALABAMA DEPARTMENT OF REVENUE v. LOGAN’S ROADHOUSE, INC.
    2090753.
    Court of Civil Appeals of Alabama.
    May 13, 2011.
    Rehearing Denied Dec. 9, 2011.
    Troy King, atty. gen., and J. Wade Hope, asst. atty. gen. and asst, counsel, Alabama Department of Revenue, for appellant.
    Bruce A. Rawls and Edward D. Cotter of Burr & Forman, LLP, Birmingham, for appellee.
   PITTMAN, Judge.

This appeal is taken from a judgment of the Jefferson Circuit Court reversing an order issued by an administrative-law judge of the Alabama Department of Revenue (“the Department”) that upheld an assessment of state and certain local use taxes against Logan’s Roadhouse, Inc. (“the taxpayer”), as to its wholesale purchase of peanuts consumed by customers at several restaurants operated by the taxpayer in Alabama. The case came before the trial court after the taxpayer, pursuant to Ala. Code 1975, § 40-2A-9(g), appealed to that court from the Department’s order and sought a trial de novo in the manner contemplated by the statute. In its judgment, entered after an ore tenus proceeding at which the trial court received evi-dentiary exhibits and heard testimony from the taxpayer’s regional manager, the trial court aptly summarized the material question to be answered:

“The issue presented for the Court’s decision is whether ... the taxpayer[ ] is liable to the State of Alabama for the payment of use tax when it purchases peanuts from wholesale suppliers. If the taxpayer sells the peanuts to its customers, then the use tax is not due on the wholesale transaction, because there is an applicable sales tax. If [the taxpayer] does not resell the peanuts to its customers, then the use tax is due to be paid.”

Our review is governed by the following principles:

“ ‘When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. ... Moreover, “under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.” However, when the trial court improperly applies the law to facts, no presumption of correctness exists as to the trial court’s judgment. “Questions of law are not subject to the ore tenus standard of review.” A trial court’s conclusions on legal issues carry no presumption of correctness on appeal. This court reviews the application of law to facts de novo.’ ”

HLH Constructors, Inc. v. State Dep’t of Revenue, 902 So.2d 680, 683-84 (Ala.Civ.App.2004) (citations omitted; quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002), quoting in turn other authorities).

The evidentiary exhibits and the testimony of the taxpayer’s manager presented at trial indicate that the taxpayer operates a number of “full service” restaurants in Alabama and other nearby states at which diners typically consume lunch and dinner entrees consisting of beef, chicken, fish, and shellfish as well as salads, appetizers, and desserts. Most, if not all, of the edible foodstuffs provided to customers of the taxpayer’s restaurants are acquired through wholesale purchases from a single central distribution center operated by Performance Food Groups. The taxpayer’s manager testified that the taxpayer pays no sales tax on such purchases; rather, a sales tax is paid on prepared meals by consumers upon their receipt of a bill at the end of a meal. The taxpayer’s manager specifically testified that certain additional edible items, such as dinner rolls and butter and “tabletop” items (including condiments such as ketchup and mustard and spices such as salt and pepper), are not separately identified or priced in the restaurant’s menu listings, but are similarly acquired by the taxpayer via wholesale purchases and are provided to customers who desire them; according to the manager, those items are similarly deemed sold to customers because the incremental cost of providing those items to each customer is included in the prices charged by the taxpayer for entree items. The taxpayer’s classification of those items as subjects of retail sales to customers has not been chai-lenged by the Department in its audit or in the litigation springing therefrom.

Most pertinent to this case is that the taxpayer, like certain other restaurant operators espousing a “roadhouse” theme, provides quantities of peanuts to its customers by means of receptacles located in restaurant entryways, at drink bars, and on dining tables. Those peanuts, like the other edible items purchased by the taxpayer for consumption in its restaurants, are acquired from its preferred wholesaler. It is undisputed that no sales tax is paid on those purchases, which are deemed wholesale sales. Also, like the taxpayer’s other edible items, peanuts do not appear as a separately priced item in the printed menu price listings distributed to restaurant customers. However, the taxpayer presented evidence to the trial court, in the form of a “menu mix” document that was not presented to the administrative-law judge, that just as 10 cents’ worth of rolls and butter and 6 cents’ worth of tabletop items are priced into each of the taxpayer’s entrees, 9 cents is similarly priced into every entree served by the taxpayer to offset the cost of peanut consumption by restaurant customers. That figure was obtained, according to the taxpayer’s manager, by dividing the entire gross quantity of peanuts acquired by the taxpayer and dividing it by the “guest count” at the taxpayer’s restaurants.

Based upon that and other evidence, the trial court determined that the taxpayer was indeed selling peanuts to customers at its restaurants so as to warrant the taxpayer’s treatment of its peanut purchases as wholesale-sales transactions. Compare Ala.Code 1975, § 40-23-l(9)a. (including “sale[s] of tangible personal property by wholesalers to licensed retail merchants ... for resale” within definition of “wholesale sale” exempted from sales and use taxation), with § 40-23-1(10) (defining “retail sale” as “[a]ll sales of tangible personal property except those ... defined as wholesale sales”). The trial court stated in its judgment:

“[The menu mix] graphically shows that the cost of peanuts is included in the cost of a meal. The evidence show that [the taxpayer] allocates $.09 to each meal for peanuts. While peanuts are not listed on the check paid for by the customer, the customer pays for them and pays a tax on them, whether he knows it or not. A charge for the peanuts is included in the bill paid by the customer.
“In weighing the arguments for and against this issue, the Court sees no legal difference in the roasted peanuts served by [the taxpayer] from many items which a customer receives when he buys a meal at a restaurant; chips and salsa, bread and butter, olive oil, salt and pepper, ketchup, mustard, ice, etc. None of these items are consumed by the restaurant owner nor is the item given away gratis. After all, the restauranteur is in business to make a profit. The cost of these items is simply included in the customers’ bill, even though it is not itemized and the customer may not be aware of it. The peanuts are sold to the customer as a retail sale whether the customer eats them or not.”

In attacking the trial court’s judgment, the Department relies almost exclusively upon the reasoning adopted by the administrative-law judge in the order reviewed by the trial court (to the extent of devoting the bulk of 8 pages of the Department’s 13-page argument to quoting the order). In essence, the reasoning adopted by the Department is that the peanuts consumed by the customers at the taxpayer’s restaurants cannot properly be deemed to have been “resold” to them if they are not separately priced on the menu price list provided to customers or are not integral parts of menu items (such as sandwich wrappers or drink containers).

However, under § 40-23-1(9), a definitional tax-levying statute that must be strictly construed against the State (see State v. Reynolds Metals Co., 263 Ala. 657, 661, 83 So.2d 709, 711 (1955)), all that is required for purposes of classifying a bulk sale to a retailer, such as the taxpayer’s purchases of quantities of peanuts, as a nontaxable “wholesale sale” is that a subsequent retail “resale” of tangible personal property occur; there is no statutory requirement for purposes of classifying a sale as a retail sale that a separate price be overtly stated and paid. See Ala.Code 1975, § 40-23-1(10) (“The quantities of goods sold or prices at which sold are immaterial in determining whether or not a sale is at retail”). To treat the taxpayer, a restaurant operator, as liable for use tax based upon its purchase of peanuts in bulk for its customers to consume as a part of their lunch and dinner meals, as the Department suggests be done in this case, would disregard the evidence presented at trial indicating that the taxpayer charges its customers for the average incremental cost of peanuts they aggregately consume. To adopt the Department’s position would also, in our view, undercut the very purpose of sales and use taxation to operate as a consumer’s tax, as to which the ultimate burden must be borne by consumers. See Merriwether v. State, 252 Ala. 590, 593, 42 So.2d 465, 466 (1949).

Our reasoning is consistent with that employed by a North Carolina appellate court in an analogous case, In re Rock-Ola Cafe, 111 N.C.App. 683, 433 S.E.2d 236 (1993), review dismissed, 336 N.C. 68, 441 S.E.2d 551 (1994). In Rock-Ola, the taxpayers purchased peanuts, pretzels, and other snack foods via wholesale sales for consumption by customers who purchased beverages at its restaurant bars; as in this case, the taxpayer in that case did not directly impose a charge for such edible items, but it included their costs and recovered them in customers’ payments for other menu items (as to which sales taxes were collected). The North Carolina taxing authorities, which petitioned the appellate court in Rock-Ola to reverse a trial court’s judgment reversing the assessment of use taxes upon the restaurant operators, contended in Rock-Ola, as the Department contends in this case, that no resales of bar foods had occurred because, it was asserted, the taxpayers’ “customers purchase[d] only the specific meals actually ordered from the menus.” 111 N.C.App. at 684, 433 S.E.2d at 236. After noting the complementary aspects of sales and use taxation, the North Carolina Court of Appeals rejected the taxing authorities’ argument:

“We agree with the taxpayers’ argument that the items here involved are not subject to a use tax because the items were purchased for resale. Sales taxes due on the items are fully paid by virtue of the corresponding increase in each menu-item price for which customers are charged.
“In order for the taxpayers to be liable for payment of a use tax on the various items it must be shown that such items were purchased for purposes other than resale, and that no sales tax was paid when the purchases were made.
“... Petitioners have shown that the respondent taxpayers did not pay a sales tax at the time of purchase, but there is no showing that the items were purchased for purposes other than resale. The taxpayers included, the cost of all the various items in their menu-item prices and collected sales taxes on those prices. This is certainly equivalent to reselling the items.”

111 N.C.App. at 686, 433 S.E.2d at 237 (emphasis added). Compare Broadmoor Hotel, Inc. v. Department of Revenue, 773 P.2d 627 (Colo.Ct.App.1989) (reaching opposite result with respect to snacks provided by hotel operator to patrons at its hotels’ bars after concluding that record did not support lower court’s determination that cost of snacks had been included in prices of beverages sold).

The trial court’s determination in this ease that the taxpayer included the cost of peanuts consumed by its restaurant customers in the prices of the meals sold in its restaurants is supported by substantial evidence, and its legal conclusion that the peanuts were sold at retail to those customers is, therefore, not in error. For that reason, we affirm the trial court’s judgment.

AFFIRMED.

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

      . The parties do not contend that the use-tax ordinances of the local taxing jurisdiction (the City of Oxford) differ in any material way from the use-tax statutes contained in the Alabama Code.

      . We need not be long detained by the de minimis prospect that a person might enter a restaurant operated by the taxpayer and consume only peanuts without purchasing an entree. That that possibility is merely hypothetical is borne out by the testimony of the taxpayer’s manager that that “just doesn’t happen,” i.e., that such an event occurs with "minimal” frequency.


author: THOMPSON, Presiding Judge.

text:
    Kelly Renee SIMS v. Jason Pepper SIMS.
    2100586.
    Court of Civil Appeals of Alabama.
    June 17, 2011.
    Rehearing Denied Aug. 12, 2011.
    Certiorari Denied Dec. 9, 2011 Alabama Supreme Court 1101396.

      Joan-Marie Dean, Huntsville, for appellant.
    James D. Moffatt of Latham, Moffatt & Wise, P.C., Athens, for appellee.
   THOMPSON, Presiding Judge.

Kelly Renee Sims (“the mother”) appeals from a judgment of the Limestone Circuit Court divorcing her from Jason Pepper Sims (“the father”). For the reasons set forth herein, we affirm the judgment in part and reverse it in part.

The parties were married in July 2000, and they are the parents of two children. At the time of the trial in this action, the children were ages 11 and 6.

On May 13, 2009, the father filed a divorce action against the mother. The parties each sought pendente lite relief. On July 1, 2009, the trial court, after holding a hearing, entered an order awarding the parties joint legal custody of the children, awarding the father sole physical custody of the children, and awarding the father exclusive possession of the marital residence during the pendency of the action. Thereafter, the mother filed a motion to hold the father in contempt for violating the July 1, 2009, order.

On November 18, 2009, a trial was held in the action. Evidence submitted at that trial indicated that the mother had been an officer of the parent-teacher organization (“the PTO”) at the elementary school at which she also served as a substitute teacher and that the children attended. In March 2009, while serving in that role, she made personal expenditures of approximately $1,100 using a PTO credit card. The improper charges on the PTO credit card included purchases of gasoline, groceries, and clothing. The mother also made cash withdrawals with the PTO credit card. The mother entered into an agreement to repay the $1,100 in two equal payments, with one payment due March 31, 2009, and the other payment due April 30, 2009. The mother paid only $200 on March 31, 2009, and the principal of the elementary school thereafter contacted the sheriffs office about the situation. The principal also contacted the father, who, it is undisputed, had had no knowledge of the situation. The principal removed the mother from the list of substitute teachers at the school. He also informed the board of education of the situation, and the mother was removed from the list of substitute teachers for the entire county school system. The mother paid the balance of the missing funds on May 14, 2009. The mother testified that her misuse of the credit card was accidental and that it had occurred because the PTO credit card resembled her personal debit card.

The father was a police officer with the City of Madison. The father submitted into evidence a CS^l “Child-Support-Obligation Income Statement/Affidavit” form that indicated that he earned $4,188 monthly from his employment as a police officer and that he paid for health, dental, and vision insurance that covered the children. He worked the third shift, from 9:80 p.m. to 5:30 a.m. He testified that he was seeking to. move to the day shift, which would involve working from 6:00 a.m. to 2:00 p.m.

In addition to his job as a police officer, the father farmed 60 acres of land that his grandmother owned. He testified that he started farming so that he could provide more for his family and that he had been doing so for four years. He stated that when he went to the farm, it was typically in the evenings and that he earned approximately $20,000 in income in the year preceding the trial from farming.

The father testified that, before he and the mother separated, he would arrive home from work a little after 6:00 a.m. and help prepare the children for school. He testified that sometimes he would take the children to school and that sometimes the mother would do so. He stated that, after he was awarded pendente lite custody of the children, he took them to school and picked them up from school every day. In later testimony, the father admitted that his sisters often picked up the children from school and that one of his sisters worked at the school.

The father stated that, on the five evenings he worked each week, he left for work after the children had gone to bed and that his mother would stay with the children overnight. He stated that the children usually spent Saturday evening at his mother’s house.

The father testified that the parties had had financial problems during the marriage. He stated that the mother would obtain credit cards without his knowledge and that, on three or four occasions, he had had to pay off several bills. He testified that he would find bills from creditors he did not know existed. It is undisputed that the mother incurred credit-card debt and debts at several stores about which the father testified he had had no knowledge and that she had written bad checks. The father testified that the mother was not truthful with him concerning how she spent money.

The father testified that both of the children had savings accounts and that, on one occasion, the mother, without his knowledge, withdrew $400 to $500 from the older child’s account. The father testified that he did not know how the mother had spent that money. The mother testified that she had withdrawn approximately $800 from the older child’s savings account and that she had given that money to her parents to pay them back for a suit they had purchased for the father for his father’s funeral. She stated that she told the father about the purpose of the withdrawals after he had found out about them and that he asked her not to do it anymore.

The father testified that the older child had participated in an accelerated reading program for the four previous school years but that the child was not presently participating in it. The father stated that the younger child had participated in cheer-leading and tumbling during the previous school year but that she was not participating in those activities during the present year. He admitted that, since he had been awarded pendente lite custody of the children, the younger child had not participated in any after-school activities. He testified that, if he were able to move to the day shift at work, he hoped that the children would be able to participate in after-school activities again.

The mother testified that if she obtained physical custody of the younger child, she would allow the child to participate in gymnastics, cheerleading, and baseball. She testified that if she were awarded custody of the older child, he would begin participating in the accelerated reading program again.

The father testified that, since he has had the children in his custody, he decided on one or two days not to give the older child the medication that had been prescribed for him for attention-deficit/hyperactivity disorder (“ADHD”). The father stated that he did not see a difference in the child physically or behaviorally when the child did not receive his medication. He testified that he did not think the child should be on medication for ADHD and that he planned to seek a second opinion from another doctor with regard to the child’s ADHD diagnosis.

He also stated that, since he had been awarded pendente lite custody of the children, he had taken them to the dentist, which was the first time in several years the children had been to the dentist.

Although the testimony was not entirely clear, it appears that, since the children had been in the father’s custody, the older child, who was in the fifth grade, had made a “C” in his mathematics class and that he had never made a “C” in the past. The father testified that the younger child, who was in the first grade at the time of the trial, had made all “As” on her first progress report but that she had made “Bs” and a “C” on the second progress report. The father testified that the mother had not spent more time helping the children with their homework before the parties’ separation than he was presently spending helping the children with their homework. However, he also testified that the older child usually completed all of his homework before he came home from school.

The mother testified that she had been the primary caregiver for the children during the marriage. She stated that she was concerned that the older child had received a “C,” and she stated that that child required that someone make sure he completed his homework. She stated that, before she left the marital home, she would sit down with the older child every night and go over his assignments from school with him. She stated that, if she obtained custody of the older child, she would encourage him to do his math homework at home at night and that she would participate with him in studying at night.

At the time of the trial, the mother was employed as a substitute teacher with the Madison City Schools and testified that she had submitted numerous applications for other employment. The mother testified that she earned approximately $700 monthly, and she submitted into evidence a CS-41 form reflecting that income. In addition to working as a substitute teacher, the mother had previously held a part-time job at a veterinary clinic; she was fired from that job. She also had held a part-time job with an insurance agent; she testified that that job ended because the agent had wanted her to begin working more hours. The mother testified that she did not work very much during the marriage because the parties had agreed that she primarily would be a stay-at-home mother.

The mother testified that the father had been “physical” with her on two occasions. She stated that, on one occasion, he pushed her into the wall of a hallway and that, on the second occasion, he had pushed her into the door of their bedroom. The father admitted that those incidents had occurred, and, in addition, that he had grabbed the mother’s wrist on one occasion.

The older child testified in camera during the trial. His testimony contradicted much of the mother’s description of her role as a parent.

On November 25, 2009, the trial court entered an order divorcing the parties. Among other things, the trial court awarded the parties joint legal custody of the children, awarded the father sole physical custody of the children, awarded the mother visitation with the children, and required the mother to pay child support in the monthly amount of $317. The mother appealed. This court dismissed the appeal because the trial court’s judgment left unresolved the mother’s motion to hold the father in contempt. See Sims v. Sims, 60 So.3d 306, 307 (Ala.Civ.App.2010) (citing Meek v. Meek, 54 So.3d 389, 392-93 (Ala.Civ.App.2010)). Following the dismissal of that appeal, the trial court entered an order denying the mother’s contempt motion. With that motion resolved, the mother filed the present appeal.

The mother contends that the trial court exceeded its discretion in awarding physical custody of the children to the father. She argues that she had been the children’s primary caregiver during the marriage and that, by awarding custody of the children to the father, the trial court had, in effect, awarded custody of the children to their paternal grandmother, upon whom the primary responsibility for raising the children would fall. She points out that, while in the father’s pendente lite custody, the children’s grades had declined and that the father had decided to “usurp medical advice and make decisions regarding the efficacy of giving the [older child] his prescribed medication.”

The standard by which this court reviews an initial award of custody following the presentation of ore tenus evidence is well settled:

“ ‘When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: “ ‘A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....’” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. “In child custody cases especially, the perception of an attentive trial judge is of great importance.” Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: “It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).’
“Ex parte Fann, 810 So.2d 631, 632-33 (Ala.2001).
“In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the ‘best interest’ of the child is controlling; the parties stand on ‘equal footing’ and no presumption inures to either parent. ‘ “ ‘The trial court’s overriding consideration is the children’s best interest and welfare.’ ” ’ Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
“In considering the best interests and welfare of the child, the court must consider the individual facts of each case:
“ ‘The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.’
“Ex parte Devine, 398 So.2d 686, 697 (Ala.1981).”

Fell v. Fell, 869 So.2d 486, 494-95 (Ala.Civ.App.2003).

Given all the evidence offered at trial, we cannot conclude that the trial court’s decision to award the father custody of the children was plainly and palpably wrong. The evidence was conflicting at trial on several matters, and it is the province of the trial court, not of this court, to weigh that evidence and to make credibility determinations. We note evidence in the record from which the trial court could have determined that the mother was reckless with regard to managing finances; that she had, in effect, misappropriated money from the PTO at her children’s school, of which she was an officer; and that she had lost more than one job within the recent past and had failed to obtain full-time employment between the time the father had been awarded pendente lite custody in July 1, 2009, and the trial on November 18, 2009, holding, instead, a part-time job as a substitute teacher making only $700 per month, despite having a college degree. We have also considered the testimony of the older child, which, as noted, contradicted much of the mother’s description of her role as a parent.

As part of her argument that the trial court should not have awarded custody of the children to the father, the mother argues that the father admitted to pushing the mother on two occasions and grabbing her wrist on one occasion. Thus, she argues, the Custody and Domestic or Family Abuse Act, § 30-3-130 et seq., Ala.Code 1975 (“the Act”), creates a presumption that it was not in the children’s best interest for the trial court to award custody of them to the father. We disagree.

Section 30-3-131 provides:

“In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.”

The trial court did not make an express determination as to whether domestic or family violence had occurred such that there was a presumption against the award of custody of the children to the father. As previously noted, in the absence of fact findings by the trial court, this court will assume that the trial court made those findings necessary to support its judgment. See Fell, supra.

In the present case, the trial court could have determined, based on the evidence, that the physical acts of which the mother complains did not rise to the level of domestic or family violence as defined by the Act, see § 30-3-130, and, as a result, that there was no basis in this case for the application of the presumption called for in the Act. See McCormick v. Ethridge, 15 So.3d 524, 530-31 (Ala.Civ.App.2008) (holding that trial court was authorized to conclude that father’s forceful shove of mother’s son in the chest and father’s pushing mother and thereby causing her to lose her balance and fall did not constitute domestic or family violence under the Act). Alternatively, the trial court could have concluded that the presumption called for in the Act, although applicable, was rebutted by a lack of evidence indicating that the father’s actions had negatively impacted the children. See id. at 531. Thus, the mother’s argument fails to support a reversal of the trial court’s judgment with regard to the custody of the children.

The mother also contends that the evidence does not support the amount of child support the trial court ordered her to pay to the father, and she notes that the trial court did not prepare a CS-42 “Child-Support Guidelines” form as required by Rule 32, Ala. R. Jud. Admin. We agree. In Hayes v. Hayes, 949 So.2d 150 (Ala.Civ.App.2006), this court wrote:

“The father’s only remaining contention is that the trial court failed to utilize the required child-support-guidelines forms in making its determination of the amount of prospective child support owed by the father. This court has held that if the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of ‘Child Support Obligation Income Statement/Affidavit’ forms (Forms CS-41) and a ‘Child Support Guidelines’ form (Form CS-42)), and if child support is made an issue on appeal, this court will remand (or reverse and remand) for compliance with the rule. See Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994). On the other hand, this court has affirmed child-support awards when, despite the absence of the required forms, we could discern from the appellate record what figures the trial court used in computing the child-support obligation. See, e.g., Dunn v. Dunn, 891 So.2d 891, 896 (Ala.Civ.App.2004); Rimpf v. Campbell, 853 So.2d 957, 959 (Ala.Civ.App.2002); and Dismukes v. Dorsey, 686 So.2d 298, 301 (Ala.Civ.App.1996). Nevertheless, without the child-support-guidelines forms, it is sometimes impossible for an appellate court to determine from the record whether the trial court correctly applied the guidelines in establishing or modifying a child-support obligation. See Horwitz v. Horwitz, 739 So.2d 1118, 1120 (Ala.Civ.App.1999).”

949 So.2d at 154-55.

In the present case, the parties submitted CS-41 forms indicating that the father earned $4,188 monthly and that the mother earned $700 monthly. The record also indicated that the father earned income from his farming activities. The record does not contain a CS^2 form setting forth the proper allocation of child support between the parties. Utilizing the figures contained in the parties’ CS-41 forms does not result in a child-support award in the amount ordered by the trial court. Although a trial court can deviate from the child-support guidelines contained in Rule 32, Ala. R. Jud. Admin., it is required to make a “written finding on the record indicating that the application of the guidelines would be unjust or inappropriate.” Rule 32(A). The trial court made no such written finding in the present case. We also recognize, as the father argues, that a trial court is permitted to impute income to a parent who is voluntarily unemployed or underemployed. See Rule 32(B)(5). However, in the present case, the evidence does not support the imputation of income to the mother in an amount necessary to result in the amount of child support the trial court awarded in this case.

Because the award of child support in this case did not comply with Rule 32, Ala. R. Jud. Admin., and because we cannot discern from the record the basis for the amount of child support the trial court awarded, we must reverse that portion of the judgment setting the mother’s child-support obligation and remand the cause to the trial court for the entry of a judgment that complies with Rule 32. In all other respects, the final judgment is due to be affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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