author: THOMAS, Judge.

text:
    ESTATE OF C.J. WILSON, deceased, et al. v. Horace BERRY et al.
    2090955.
    Court of Civil Appeals of Alabama.
    Feb. 4, 2011.

      Randall K. Forrester of Forrester Law, LLC, Jasper, for appellants.
    Allen Grocholski, Fayette, for appellees.
   THOMAS, Judge.

This is the second time these parties have appeared in this court. Wilson v. Berry, 36 So.3d 559 (Ala.Civ.App.2009). The pertinent facts were set out in Wilson:

“Horace E. Berry and Carolyn C. Berry own several contiguous parcels of real estate in Fayette County (‘the Berry property’). One parcel of the Berry property abuts one of two contiguous parcels of property owned by the estate of C.J. Wilson (‘the Wilson property’). A dirt road traverses from a county road known as Coprich Road across a portion of the Wilson property and across a small portion of neighboring property before it reaches the Berry property. The Berrys, and, before them, Horace’s father, have used this dirt road to haul timber, to reforest their property, and to otherwise maintain their property for approximately 50 years. At some point in mid to late 2007, Noland Wilson, one of the heirs of C.J. Wilson, put a cable across the road, obstructing the Berrys’ access to the road.
“The Berrys sued the estate and the heirs of C.J. Wilson — Noland Wilson, Pauline Wilson, J.C. Wilson, Robelton Wilson, James R. Wilson, Benjamin Wilson, Eulene Nails, and Earline Brown (referred to collectively as ‘the Wilson defendants’) — alleging that their land was landlocked, that no other access to a county road from their land was available, and that they had used and improved the road for ‘not less than 50 years.’ The day before trial, the Berrys amended their complaint to specifically allege that they were entitled to a prescriptive easement in the road. After a trial, the trial court entered a judgment in favor of the Berrys declaring that they were entitled to a prescriptive easement in the road.”

Wilson, 36 So.3d at 560.

Because the testimony at trial indicated that the parties believed that the road in question had been a public roadway that had been abandoned at some point, we reversed the trial court’s judgment because Fayette County was an indispensable party to the action and had not been made a party below. Id. at 561. As we explained in footnote one of the opinion:

“In order to change the character of a public road, the road must either be vacated pursuant to a statutory procedure, see Ala.Code 1975, § 23-4-2 (setting out procedure for a municipality or county to vacate a public road) and § 23-4-20 (setting out procedure by which abutting landowners may vacate a public road), or be abandoned. Kennedy v. Hines, 660 So.2d 1335, 1339 (Ala.Civ.App.1995). The abandonment of a public road may be accomplished by nonuse of the road for a period of 20 years or, in situations in which another road replaces the road in question, by nonuse for a period shorter than 20 years. Walker v. Winston County Comm’n, 474 So.2d 1116, 1117 (Ala.1985); Kennedy, 660 So.2d at 1339. The person claiming the abandonment bears the burden of proving nonuse for the requisite period by clear and convincing evidence. Walker, 474 So.2d at 1117; Kennedy, 660 So.2d at 1339. Although relevant to the abandonment inquiry, ‘[c]ounty maintenance is not essential to the status of a public road.’ Kennedy, 660 So.2d at 1339; see also Walker, 474 So.2d at 1117.”

Id. at 560 n. 1.

On remand, Fayette County was added as a party to the action. On March 29, 2010, John R. Gordon, the county administrator, filed a motion to dismiss Fayette County as a party on the basis of his attached affidavit, in which he stated that he, “or someone on [his] behalf has at [his] direction, examined the records of Fayette County, Alabama, and find [sic] that Fay-ette County does not own, nor has it ever owned, any interest in and to the property which is the subject of this lawsuit.” The trial court dismissed Fayette County as a party on April 28, 2010, on the basis of Gordon’s motion to dismiss, and it reiterated the findings in its original judgment regarding its determination that the Ber-rys were entitled to a prescriptive easement.

The estate of C.J. Wilson and C.J. Wilson’s heirs (“the Wilson defendants”) filed a motion to alter, amend, or vacate the judgment and a motion for a new trial. After a hearing, at which the Wilson defendants specifically pointed out to the trial court that the motion to dismiss Fay-ette County was not filed by a licensed attorney but instead by the county administrator, the trial court denied their post-judgment motions. The Wilson defendants appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7(6).

On appeal, the Wilson defendants raise several issues, including challenging the merits of the trial court’s conclusion that the Berrys were entitled to a prescriptive easement, arguing that the trial court erred by dismissing Fayette County when the motion seeking dismissal was not filed by an attorney representing Fayette County, and arguing that Gordon’s affidavit was faulty because it was based on hearsay. We reverse the trial court’s judgment based on the second argument raised by the Wilson defendants, and our resolution of that threshold issue again bars our consideration of the merits of the trial court’s judgment.

Although no Alabama case has directly considered whether a county, which is declared to be “a body corporate” by Ala.Code 1975, § 11-1-2, may be represented in court by someone other than a licensed attorney, this court and our supreme court have long held that a corporation may not be represented in a court of law by one of its officers and must instead be represented by a licensed attorney. AOK Constr. Co v. Castle Constr. Co., 594 So.2d 53 (Ala.1992); Ex parte Lamberth, 242 Ala. 165, 167, 5 So.2d 622, 623 (1942); Stage Door Dev., Inc. v. Broadcast Music, Inc., 698 So.2d 787 (Ala.Civ.App.1997); but see Progress Indus., Inc. v. Wilson, 52 So.3d 500, 508 (Ala.2010) (holding that a filing by a nonattorney on behalf of a corporation may be considered an “appear-anee” for purposes of Rule 55(b)(2), Ala. R. Civ. P.). As our supreme court has explained, the rationale behind prohibiting a nonattorney from representing the interests of a separate legal entity protects the public in three ways:

“(1) by protecting citizens from injury caused by ignorance and lack of skill on the part of those who are untrained and inexperienced in the law; (2) by protecting the courts in their administration of justice from the interference of those who are unlicensed and are not officers of the court; and (B) by preventing the unscrupulous from using the legal system for their own purposes to the detriment of the system and of those who may unknowingly rely on them.”

Ex parte Ghafary, 738 So.2d 778, 779 (Ala.1998). We can conceive of no reason to treat a county, which is considered a corporate body and is thus a separate legal entity, differently than any other corporation. Certainly the interests of the public, and especially the interests of the residents of the particular county, could be jeopardized by allowing a nonattorney official to appear on the county’s behalf and possibly to bind the county to a legal position that the county might be better off not assuming.

Our supreme court has further described a pleading filed by a nonattorney on behalf of a separate legal entity as a “nullity.” Ex parte Ghafary, 738 So.2d at 781; see also Progress Indus., 52 So.3d at 507-08 (“This court has thus held that a pleading filed by a non-attorney engaging in the unauthorized practice of law in purporting to represent a separate legal entity is a nullity”), and Ex parte Lamberth, 242 Ala. at 167, 5 So.2d at 623-24 (ordering the trial court to vacate its order denying the plaintiff’s motion to strike the answer of a corporation filed by the corporation’s president). Thus, we conclude that the motion to dismiss Fayette County as a party, filed by county administrator Gordon, a nonat-torney, was a nullity and, thus, that Fay-ette County, although it arguably has appeared in the action, see Progress Indus., 52 So.3d at 507-08, has not yet asserted a position in the litigation.

We therefore reverse the trial court’s judgment and remand the cause for the trial court to set aside its dismissal of Fayette County as a party, for Fayette County to appear in the action through an attorney, for the issues whether and when the road was abandoned by the county to be determined based on evidence presented by the county and the other parties, and for the trial court to enter a judgment based on its determination regarding the status of the road.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

license: Public Domain

text:
    R.J. SCHWEIGER v. TOWN OF HURTSBORO and Rayford Tapley.
    2090947.
    Court of Civil Appeals of Alabama.
    Feb. 4, 2011.

      Scott Crouse, Opelika, for appellant.
   THOMAS, Judge.

In December 2009, R.J. Schweiger, acting pro se, filed a complaint against the Town of Hurtsboro and its mayor, Rayford Tapley (referred to collectively as “the Town”), seeking a declaratory judgment and an injunction based on Schweiger’s allegations that the Town had breached its fiduciary duty to its citizens by failing to have a yearly audit performed as required by Ala.Code 1975, § 11-48-85, and by using moneys derived from the gasoline tax for purposes unrelated to road maintenance. See Amendment No. 354, Ala. Const. 1901 (now Art. IV, § 111.06, Ala. Const. 1901 (Off.Reeomp.)) (stating, in part, that “no moneys derived from any fee, excises, or license taxes, levied by the state, relating to fuels used for propelling ... vehicles [upon the public highways] except pump taxes, shall be expended for other than cost of administering such laws, statutory refunds and adjustments allowed therein, cost of construction, reconstruction, maintenance and repair of public highways and bridges, costs of highway rights-of-way, payment of highway obligations, the cost of traffic regulation, and the expense of enforcing state traffic and motor vehicle laws”); see also Opinion of the Justices No. 351, 665 So.2d 1389, 1391 (Ala.1995) (concluding that “Amendment 354 ‘earmarks’ revenue derived from the operation of motor vehicles on public highways for closely allied projects, such as ‘construction, reconstruction, maintenance and repair of public highways and bridges’”); and Ala.Code 1975, § 40-17-78(3) (outlining proper use of revenue from gasoline tax when used for “highway purposes”). The Town moved to dismiss Schweiger’s complaint, requesting in that motion that the trial court assess sanctions against Schweiger because “the case is not plead in good faith and otherwise fails to rise to the level of initiating legal and/or equitable actions in the State of Alabama.” In its answer, which was filed on the same date as the motion to dismiss, the Town stated that it was seeking “court costs, defense costs and other sanctions against the plaintiff.” After a hearing on the motion to dismiss, the trial court dismissed Schweiger’s complaint, ordered Schweiger to pay costs, and ordered that the Town’s attorney fees were to become part of the costs of the action. After his post-judgment motion was denied, Schweiger appealed the trial court’s judgment ordering him to pay the Town’s attorney fees to this court; we transferred the appeal to our supreme court because we lacked jurisdiction over the appeal, and our supreme court transferred the case to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Neither the Town’s pleadings nor the trial court’s judgment recites the legal basis for an imposition of attorney fees against Schweiger. “In Alabama, attorneys’ fees are recoverable only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.” Eagerton v. Williams, 433 So.2d 436, 450 (Ala.1983). However, an award of attorney fees as a sanction is authorized by the Alabama Litigation Accountability Act (“the ALAA”), codified at Ala.Code 1975, § 12-19-270 et seq.

Although the Town did not reference the ALAA in its motion to dismiss or in its answer, Schweiger treats the trial court’s imposition of attorney fees as an assessment under the ALAA. Pursuant to the ALAA, a trial court must assess attorney fees against a party who brings an action or asserts a claim or defense that is “without substantial justification.” Ala. Code 1975, § 12-19-272(a). “Without substantial justification” is defined in the ALAA as being “frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation.” Ala.Code 1975, § 12-19-271(1). We agree with Schweiger that the Town’s request for attorney fees as a sanction against Schweiger because “the case is not plead in good faith and otherwise fails to rise to the level of initiating legal and/or equitable actions in the State of Alabama” is tantamount to an allegation that Schweiger’s action was initiated “without substantial justification,” as that term is defined in the ALAA. Thus, we will analyze the merits of Schweiger’s appeal under the ALAA.

Schweiger first argues that the trial court failed to make the required findings to support an assessment of attorney fees under the ALAA. Indeed, Ala.Code 1975, § 12-19-273, requires a trial court assessing attorney fees under the ALAA to “specifically set forth the reasons” underlying its decision to assess attorney fees. See also Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993) (“Additionally, we will require a trial court making the ‘without substantial justification’ determination to make its determination, the ground or grounds upon which it relies, and the legal or evidentiary support for its determination, a part of the record, either by drafting a separate written order or by having these findings transcribed for the official record.”). The trial court’s judgment, which consists of four sentences, omits the required findings. For this reason alone, we would typically reverse the trial court’s judgment assessing attorney fees against Schweiger and remand the cause for the trial court to make the required findings on the record to support the assessment of attorney fees. See Pacific Enters. Oil Co., 614 So.2d at 419.

However, Schweiger also points out that the ALAA provides a further requirement for assessing attorney fees against a pro se litigant. Section 12-19-272(e), Ala.Code 1975, explains that

“[n]o party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorneys’ fees unless the court finds that the party clearly knew or reasonably should have known that his action, claim or defense or any part thereof was without substantial justification.”

Alabama has yet to construe or apply this particular section of the ALAA. However, we are not without guidance. In 1991, when first construing the ALAA, our supreme court relied on caselaw construing a Colorado statute similar to the ALAA. See Tidwell v. Waldrop, 583 So.2d 243, 244 (Ala.1991) (relying on Ruffing v. Lincicome, 737 P.2d 440, 441 (Colo.App.1987)).

The Colorado counterpart to § 12-19-272 of the ALAA, Colo.Rev.Stat. Ann. § 13-17-102(6), contains wording similar to that contained in our statute:

“No party who is appearing without an attorney shall be assessed attorney fees unless the court finds that the party clearly knew or reasonably should have known that his action or defense, or any part thereof, was substantially frivolous, substantially groundless, or substantially vexatious; except that this subsection (6) shall not apply to situations in which an attorney licensed to practice law in this state is appearing without an attorney, in which case, he shall be held to the standards established for attorneys elsewhere in this article.”

(Emphasis added.) A Colorado court has construed this subsection, concluding that a trial court could not assess attorney fees against a pro se litigant without making the finding required by the statute that the pro se litigant “clearly knew or reasonably should have known” that his or her claim or defense was without substantial justification. Artes-Roy v. Lyman, 833 P.2d 62, 64 (Colo.App.1992). The Artes-Roy court reversed the assessment of attorney fees because of the failure of the trial court to make the necessary finding, and it vacated the judgment assessing fees. Artes-Roy, 833 P.2d at 64. Thus, based on the similarity between Colorado’s statute and our own, we agree with Schweiger that the trial court was also required by the ALAA to make a finding that he “clearly knew or reasonably should have known” that the action he filed was without substantial justification. § 12-19-272(e).

Schweiger further argues, based on our holding in Dickerson v. Dickerson, 885 So.2d 160, 168 (Aa. Civ.App.2003), that the judgment assessing attorney fees should be vacated because the trial court failed to make the requisite findings that his action was filed without substantial justification and that he “clearly knew or reasonably should have known” that his action was without substantial justification. Schweiger is correct in arguing that we did vacate the attorney-fee assessment against the mother in Dickerson instead of reversing the judgment assessing attorney fees and remanding the cause for the trial court to state its basis for the award; however, we did so after a review of the extensive history of the ongoing litigation between the mother and the father in a highly contested postminority-educational-support case, which, we determined, did not support a conclusion that the mother’s petitions and motions were filed without substantial justification. Dickerson, 885 So.2d at 168.

In contrast with the record in Dickerson, the record in the present appeal is far more sparse. The record in the present appeal reflects only that Schweiger filed his action and that the Town opposed it on the basis that (1) the expenditures of which Schweiger complained did not violate Amendment 354 based on an attorney general’s opinion and (2) that the audit Schweiger demanded had been delayed because of the Town’s financial inability to pay for one. At the hearing on the Town’s motion to dismiss, the trial court entertained arguments from the Town’s counsel and Schweiger and accepted exhibits, including the attorney general’s opinion on which the Town relied, but no testimony was taken. We cannot glean from the sparse record before us in this case whether Schweiger’s action was brought without substantial justification and, if it was, whether Schweiger “clearly knew or reasonably should have known” of the lack of justification for his action.

In addition, we note that the trial court’s failure to make the requisite findings to support its assessment of attorney fees leaves this court without the ability to determine the appropriate standard of review on appeal. The standard of review of an assessment of attorney fees under the ALAA varies, depending on whether the trial court determines the action to be without substantial justification because it is “groundless in law” or because it is “groundless in fact,” “frivolous,” “vexatious,” or “interposed for an improper purpose.” Pacific Enters. Oil Co., 614 So.2d at 418. If the trial court concludes that the action is “groundless in law,” the appellate court may review that conclusion de novo because it involves a pure question of law. Id. However, a conclusion that an action is “groundless in fact,” “frivolous,” “vexatious,” or “interposed for any improper purpose” is based on factual findings the trial court must make, which findings are, naturally, reviewed on appeal under a more deferential standard. Id. Our supreme court has stated that a conclusion that an action is “groundless in fact,” “frivolous,” “vexatious,” or “interposed for any improper purpose” will be reversed on appeal only if it is “ ‘clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ ” Id. (quoting Cove Creek Dev. Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala.1991)). Likewise, because a determination whether a pro se litigant “clearly knew or reasonably should have known” of the lack of substantial justification for his or her action contains a factual component, we conclude that such a determination should be reviewed under the same standard and, therefore, may not be reversed on appeal unless that conclusion is unsupported by the evidence. See id.

Thus, based on the sparse record before us and the fact that we cannot determine the appropriate standard of review in this instance, we decline Schweiger’s request to vacate the assessment of attorney fees as we did in Dickerson. Instead, as our supreme court did in Pacific Enters. Oil Co., we reverse the judgment of the trial court insofar as it assessed attorney fees against Schweiger, and we remand the cause for the trial court to determine whether Schweiger’s action was brought without substantial justification, and, if so, whether Schweiger either “clearly knew or reasonably should have known” that his action lacked substantial justification and for the trial court to make the necessary findings on the record or by separate order to support any attorney-fee assessment it may make on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . In his brief, Schweiger states that the trial court failed to make a finding that he filed his action "intentionally without substantial justification.” Schweiger apparently equates the required finding in § 12-19-272(e) — that the trial court conclude that the pro se litigant knew or should have known that his action lacked substantial justification — with a finding of intent on the part of the pro se plaintiff. The statute does not require that the trial court conclude that the pro se litigant intended to file an action without substantial justification before an assessment of attorney fees can be made; a determination that the pro se litigant should have known of the lack of justification for his or her action will suffice to permit an assessment of attorney fees against that litigant.

      . We note that the acceptance and consideration of matters outside the pleadings by the trial court could have converted the Town’s motion to dismiss to a motion for a summary judgment. See Rule 12(b), Ala. R. Civ. P. ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, [Ala. R. Civ. P.] and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”); Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986) (reviewing a judgment entered on a motion to dismiss as a summary judgment because matters outside the pleadings had converted the motion to dismiss to a motion for a summary judgment). However, because Schweiger does not challenge the dismissal of his action on appeal, we need not determine whether the trial court entered a dismissal or a summary judgment.


author: MOORE, Judge.

text:
    ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS v. AHI LINDEN LUMBER, LLC.
    2090891.
    Court of Civil Appeals of Alabama.
    Feb. 11, 2011.

      Frank G. Marsh, special asst. atty. gen., and Glenn Chaffin, deputy atty. gen., Alabama Department of Industrial Relations, Legal Division, for appellant.
    Woodford W. Dinning, Jr., Demopolis, for appellee.
   MOORE, Judge.

The Alabama Department of Industrial Relations (“ADIR”) appeals from a judgment entered by the Marengo Circuit Court (“the trial court”) in favor of AHI Linden Lumber, LLC (“AHI”), on February 24, 2009. Because the trial court’s judgment recalculated AHI’s unemployment-compensation contribution rate and the benefit ratio used to determine the contribution rate for the year 2009 based solely on the trial court’s determination that AHI was not a successor in interest to Linden Lumber Company, Ltd. (“Linden Lumber”) — a determination the trial court did not have the authority to make — we reverse the trial court’s judgment and remand the cause with instructions.

Facts

According to Hugh Overmeyer, Linden Lumber began operation in the 1950s and was owned by his grandfather. Eventually, Hugh and his father, Don Overmeyer, gained ownership of Linden Lumber, which began to encounter economic difficulties in 2006 and 2007. At one time, Linden Lumber employed 700 to 800 people, but, by late 2007, the workforce had been reduced to between 200 and 400 employees. Hugh testified that Linden Lumber owned approximately 800 acres of land in Linden, which included a sawmill and flooring plants, as well as a flooring plant that sat on 60 acres of land in Thomasville, a wood yard that sat on 20 acres of land in Mississippi, and timberland in various Alabama counties. The primary lender on loans secured by Linden Lumber’s property was Federal Land Bank; Wachovia Bank was the secondary lender. Hugh testified that, at a meeting in 2007 with employees from Federal Land Bank and Wachovia Bank, certified appraisals revealed that the value of Linden Lumber exceeded $30 million. Federal Land Bank commenced foreclosure proceedings on Linden Lumber’s property in 2007. According to Hugh, in order to avoid closure, Linden Lumber sought a purchaser for the sawmill and the flooring plants located in Linden. Hugh testified that HIG Capital and Ted Rossy formed AHI and acquired some of the assets of Linden Lumber, including the sawmill in Linden; that sale took place on March 31, 2008, and, according to Hugh, AHI paid approximately $10 million for the assets it purchased from Linden Lumber. Hugh stated that he and his father had had equity in Linden Lumber at the time of the sale and that they lost that equity upon the sale to AHI.

Hugh testified that AHI acquired approximately 153 acres of land owned by Linden Lumber, including the sawmill, located in Linden. AHI did not acquire the other approximately 650 acres of land in Linden, the 20 acres located in Mississippi, the 60 acres located in Thomasville, or any of the timberland located in various Alabama counties. Hugh stated that neither he nor his father held an ownership interest in AHI but that Hugh continued as an employee of AHI and acted as the vice president of AHI. Hugh described the sale of Linden Lumber’s assets to AHI as an asset purchase and stated that AHI was not a successor company to Linden Lumber. According to Hugh, AHI was formed and it had secured a separate independent employer’s identification number from the Internal Revenue Service before the sale on March 31, 2008. Hugh testified that AHI retained over 90% of the employees from Linden Lumber and that AHI continued the business of Linden Lumber without stopping operations. He testified, however, that Linden Lumber had discharged each of its employees and that AHI had hired some of those employees, some with different terms of employment including lower rates of pay, along -with some additional employees. Hugh stated that AHI had shut down parts of the sawmill upon the sale because of the economy but that AHI had never shut down operations entirely.

Terry Dunham, the office and credit manager at AHI, stated that he had worked for Linden Lumber for 31 years. Dunham testified that Hugh and his father had no ownership interest in AHI, that they did not receive any equity at the time of the sale, and that they had lost their investments in Linden Lumber. Dunham stated that the value of the assets of Linden Lumber that were not acquired by AHI at the time of the sale was probably “somewhere around $20 million.” Dunham testified that he had written a letter to ADIR dated May 2, 2008, in which he requested an employer account number for AHI, and that he had enclosed an application, which had been signed by Hugh on behalf of AHI, to determine AHI’s liability for payment of unemployment-compensation benefits. In that letter, Dunham stated that “[AHI] purchased all of the assets of [Linden Lumber].” Dunham testified that, at the time he wrote that letter, the other assets of Linden Lumber had “gone away” or been bought by other entities and that what had been sold to AHI was all that was left of Linden Lumber at the time of the sale.

In a document responding to Dunham’s letter, entitled “Official Notification of Registration” (“the notification letter”), dated May 13, 2008, ADIR informed AHI that it had determined AHI to be a “successor-in-interest” to Linden Lumber; it also assigned AHI an employer account number and informed AHI of its unemployment-compensation contribution rate. The notification letter stated, in pertinent part:

“The determination for your liability and tax rate is based on the information furnished [to ADIR], If it is later determined, however, that the information was incorrect, whether or not it was known to be incorrect when furnished, the determination of liability and/or tax rate may be adjusted using the correct information if received within the protest period. If you disagree with this determination, a written protest must be filed within thirty (30) days from the date of this letter.”

(Bold typeface in original.)

Hugh explained his understanding that, in determining a company’s contribution rate, ADIR would assign an “experience rating” based on the company’s employment and unemployment history for the preceding three years. He testified that his understanding is that, in assigning a company an experience rating, ADIR looks at the company’s history of layoffs and the number of employees that have drawn unemployment. According to Hugh, because Linden Lumber had been in a downward spiral before the sale, there were a lot of layoffs that had driven Linden Lumber’s unemployment contributions up during its last three years of operation and, as a result, had required Linden Lumber to pay more than its usual amount in unemployment contributions. Hugh testified that a protest of the determinations in ADIR’s May 13, 2008, notification letter had not been filed by AHI within the appeal time stated in the letter but that a protest was filed later. He testified that ADIR remitted a document to AHI entitled “Experience Rating Charges,” which was mailed on August 6, 2008, that listed the unemployment-compensation benefits that had been paid to AHI’s workers in the calendar quarter ending June 80, 2008. That document states, in pertinent part, that “[c]harges become final unless request for review is submitted within 80 days from the mailing date.” Jo Doyle, the sections supervisor for experience rating in the status unit of ADIR, testified that AHI failed to file an appeal from the experience-rating charges within 30 days of the mailing date of the document.

Hugh stated that, although AHI was late to appeal the contribution rate that was set by AHI, it did appeal the contribution rate for the 2009 year. In a letter dated April 20, 2009, ADIR informed AHI that an administrative review of AHI’s unemployment-compensation contribution rate for the calendar year 2009 had been conducted and that it had determined that the rate was correct. That letter stated, in pertinent part:

“As the initial establishment of your account and the unemployment tax rate for the calendar year 2008 were not timely protested, the appeal process has ended. However, if your company continues to disagree with the unemployment tax rate for calendar year 2009, further appeal should be made to the circuit court in the county where the business is located or Montgomery County. The request must be submitted within thirty (30) days from the date of this letter as provided for in Section 25-5-54(h) and implemented by Section 25-4-134 of the Code of Alabama 1975 amended.”

Hugh testified that, as far as the determination that AHI was a successor in interest to Linden Lumber, nothing had changed between May 13, 2008, when the notification letter was sent, and April 20, 2009, when the letter denying AHI’s appeal was sent.

Doyle testified that she establishes or oversees the establishment of employer accounts and the experience ratings of employers. Doyle stated that an employer’s experience rating is based on three years of physical experience of an employer. She stated that “[a]n employer who acquires the ongoing business, trade, or substantially all the assets of another company establishes their rate based on the experience of another company, or, if you start out at a brand new rate, then you start out with an average rate which does not require any kind of calculation but is a much lower rate.” She stated that the contribution rate for a new employer with no experience rating is 2.70% of wages paid and that, at the time of AHI’s acquisition of Linden Lumber, based on Linden Lumber’s experience rating, Linden Lumber’s contribution rate was 6.24% of its “taxable wages and benefit charges.” Doyle testified that ADIR had received a letter from AHI in May 2008, along with the letter from Dunham, informing ADIR that AHI had purchased all the assets of Linden Lumber. She stated that the application to determine liability signed by Hugh on May 2, 2008, reflected that AHI was the successor in interest to Linden Lumber and that AHI had 200 employees, including Hugh as vice president of the company. Doyle stated that ADIR then mailed the notification letter to AHI on May 13, 2008, which informed AHI of its contribution rate, its employer account number, and that it was being treated as a successor in interest to Linden Lumber; that letter also informed AHI that a written protest must be filed within 30 days if it disagreed with ADIR’s determinations. According to Doyle, ADIR’s records indicate that an appeal was not filed until October 2, 2008.

According to Doyle, in determining a company’s contribution rate, ADIR looks at whether a company that acquires an ongoing business continues to conduct the same type of operation that the previous company conducted and at whether a substantial number of the employees were acquired from the predecessor company by the successor company. She stated that, in the present case, ADIR made the determination that AHI was a successor in interest to Linden Lumber based on what AHI had submitted to ADIR. She stated that there was a timely appeal by AHI of the contribution rate and the benefit ratio assigned to AHI by ADIR for the calendar year 2009. She stated further, however, that the 2009 contribution rate had been based on the successorship that was confirmed in May 2008. Doyle testified that it was too late to appeal the successorship determination because it had already become final. She stated that AHI’s appeal was denied because it was premised on the assertion that AHI is not the successor in interest to Linden Lumber. Doyle testified further that whatever is left of a business entity at the time of the sale is what is considered by ADIR in determining whether the purchasing company is a successor in interest.

Procedural History

AHI appealed ADIR’s April 20, 2009, decision to the trial court, pursuant to § 25-4-54(h), Ala.Code 1975, on May 11, 2009. AHI asserted that it was not a successor in interest to Linden Lumber and that the benefit ratio and contribution rate established by ADIR based on that premise were in error. ADIR filed an answer to AHI’s notice of appeal on June 25, 2009.

On February 24, 2010, the trial court entered a judgment in which it determined that AHI was not a successor in interest to Linden Lumber and that the unemployment-compensation contribution rate for AHI should be calculated based on AHI’s being a new corporation, with that calculation not taking into consideration the experience rating of Linden Lumber. ADIR filed a Rule 59(e), Ala. R. Civ. P., post-judgment motion on March 19, 2010; that motion was denied by operation of law on June 17, 2010. ADIR filed a notice of appeal to this court on June 28, 2010.

Discussion

On appeal, ADIR first argues that the determination that AHI was a successor in interest to Linden Lumber was a final decision and, thus, unappealable because, it says, AHI failed to file a timely protest of that determination, which was sent to AHI by ADIR on May 13, 2008. Specifically, ADIR asserts that subsections (c)(3) and (h) of § 25-4-54, Ala.Code 1975, prohibit AHI from appealing the May 2008 determination that it is a successor in interest to Linden Lumber and act to divest the trial court of “jurisdiction” to overturn that determination.

“Our review of questions of law is de novo.” Dabbs v. SRE, Inc., 992 So.2d 15,18 (Ala.Civ.App.2008). Section 25-4-54 provides, in pertinent part:

“(c) Determination of employer benefit charges.
“(3) The director [of ADIR] shall, after the close of each calendar quarter, furnish each employer with a statement of the benefits paid to his workers, or former workers, which became his benefit charges in that calendar quarter, together with the names of such workers, or former workers, and such statement, in the absence of an application for a revision thereof within 30 days of the mailing of such statement to the employer’s last known address, shall be conclusive and final upon the employer for all purposes and in all proceedings whatsoever ....
“(d) Determination of employer benefit ratio. Effective January 1, 1997, and each year thereafter, the benefit ratio of each employer who qualifies for a rate determination under subdivision (a)(1) of this section and has been chargeable with benefits throughout the three most recent preceding fiscal years shall be a percentage obtained by dividing the total of his benefit charges for such three-year period by that part of his total taxable payroll for the same three-year period with respect to which contributions have been paid on or before July 31, next following such period.... The employers benefit ratio shall be computed to the fourth decimal and be used in determining each employer’s contribution rate as prescribed in subsection (a) of this section for the next calendar year....
“(h) Review of contribution rate, etc. Any employer may apply to the director for and shall be entitled to a review as to the determination of his benefit ratio and his contribution rate as fixed by his benefit ratio, provided such application is filed within 30 days of the date of the mailing by the director to the employer of the notice of such determination....
“(i) Contribution rate, etc., of successor employer. For the purpose of this section, an employer’s benefit charges and that part of his taxable payroll with respect to which contributions have been paid, shall be deemed benefit charges and taxable payrolls of a successor employer and shall be taken into account in determining the contribution 1’ate of such successor employer as provided in subsection (f) of this section, if such successor succeeds the employer in any of the manners set out in paragraph (a)(4)a of Section 25^-8[, Ala.Code 1975]; provided, that an employer subject to this chapter who becomes such in any of the manners set out in paragraph (a)(4)b of Section 25-4-8 may have that portion of his predecessor’s benefit charges and that part of his predecessor’s total taxable payroll, with respect to which contributions have been paid which correspond to the segregable portion of the business assets and payroll thereof, acquired from his predecessor, deemed to be his benefit charges and his payroll and such shall be taken into account in determining his rates, as provided in subsection (f) of this section. ...”

In Weathers v. City of Oxford, 895 So.2d 305, 309 (Ala.Civ.App.2004), this court stated:

“The applicable rules of statutory construction are quite clear:
“ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Ex parte Master Boat Builders, Inc., 779 So.2d 192, 196 (Ala.2000) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)). It is a well-established principle of statutory construction that the law favors rational and sensible construction. See Crowley v. Bass, 445 So.2d 902 (Ala.1984); 2A Norman J. Singer, Sutherland Statutory Construction § 45.12 at 83-85 (6th ed.2000). Moreover, the Legislature will not be presumed to have done a futile thing in enacting a statute; there is a presumption that the Legislature intended a just and reasonable construction and did not enact a statute that has no practical meaning. See Ex parte Watley, 708 So.2d 890 (Ala.1997); Ex parte Meeks, 682 So.2d 423 (Ala.1996). Additionally, ‘[sjections of the Code originally constituting a single act must be read in pari materia in order to “produce a harmonious whole.” ’ Ex parte Jackson, 625 So.2d 425, 428 (Ala.1992) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed.1993)) (footnote omitted).”

Reading the provisions of § 25-4-54 as a whole, we are compelled to agree with ADIR that the determination that AHI was a successor in interest to Linden Lumber became final when AHI failed to appeal that determination within 30 days after it was notified of that determination by ADIR in the May 13, 2008, notification letter. As a result, we conclude that that determination could not be overturned by the trial court.

First, § 25-4-54(h) allows an employer to apply to ADIR for a review of the determination of its benefit ratio and its contribution rate, provided such application is filed within 30 days of the date of the notice of the determination. ADIR mailed the notice of determination of AHI’s contribution rate on May 13, 2008. AHI failed to appeal that determination. ADIR then mailed to AHI, on August 6, 2008, a statement of benefits charged during the quarter ending on June 30, 2008, in accordance with § 25-4-54(c)(3). AHI again failed to file an application for a revision of those charges within the prescribed 30-day period. Thus, in accordance with § 25-4-54(c)(3), that statement became “conclusive and final.” AHI then, pursuant to the procedure in § 25-4-54(h), attempted to appeal the determination of its benefit ratio and, thus, its contribution rate for the year 2009, which were based on the determination that it was a successor in interest to Linden Lumber.

AHI asserts that there is no language in § 25-4-54 prohibiting an employer from appealing a determination of a benefit ratio at any time. Rather, AHI argues, an employer is “simply required to file its dispute or contest within thirty (30) days of a quarterly notice, and then file its notice of appeal in the circuit court within thirty (30) days after [ADIR] rejects its contest or appeal.” Although we agree that AHI was within its rights to request a review as to the determination of its benefit ratio for the year 2009, in accordance with § 25-4-54(h), we conclude that that review was limited to factors that had not been previously determined, and made final, by ADIR in accordance with § 25-4-54 and the appeal process outlined therein.

The benefits charged to AHI for the quarter ending on June 30, 2008, which were not appealed by AHI, were based on calculations made in accordance with subsections (d) and (i) of § 25-4-54, using the employment/unemployment history of Linden Lumber for the three preceding years. To allow AHI to challenge the benefit ratio for 2009 on the basis that ADIR’s determination that AHI was a successor in interest to Linden Lumber is incorrect would necessarily call into question ADIR’s previous determination of AHI’s benefit ratio for 2008, thereby allowing AHI another bite at the apple, so to speak, at a review of the 2008 determination and, essentially, nullifying the applicability of the 30-day appeal period under subsections (c)(3) and (h) of § 25-4-54 and the “finality” of ADIR’s determination under § 25-4-54(c)(3). Because we will not presume that the legislature has done a futile thing in enacting § 25-4-54, we conclude that it did not contemplate allowing an employer to seek review of a determination of a benefit ratio in a later year to the extent that it could affect the finality of unap-pealed decisions from earlier determinations.

AHI failed to timely appeal ADIR’s determination that it was a successor in interest to Linden Lumber in accordance with § 25-4-54(h); we conclude, therefore, that that determination became final and unappealable upon the expiration of 30 days after ADIR sent AHI the notification letter on May 13, 2008. Although AHI was permitted to appeal ADIR’s determination of its 2009 benefit ratio, it limited its argument in the trial court to challenging ADIR’s determination that it was a successor in interest to Linden Lumber. We conclude that the trial court erred in determining that AHI’s benefit ratio and unemployment-compensation contribution rate for 2009 should be recalculated based on its conclusion that AHI is not a successor in interest to Linden Lumber. We therefore reverse the trial court’s judgment and remand the cause to the trial court with instructions that it enter a judgment in favor of ADIR.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . ADIR asserts on appeal that the trial court did not have jurisdiction to hear AHI's appeal from ADIR’s decision because AHI failed to timely file an appeal from ADIR's decision in 2008 that AHI was a successor in interest to Linden Lumber. We conclude that the trial court had jurisdiction to hear an appeal by AHI from ADIR's decision regarding AHI’s 2009 benefit ratio and contribution rate, yet it was improper for the trial court to reverse ADIR’s decision based on its finding error with ADIR’s earlier determination that AHI was a successor in interest to Linden Lumber. In other words, the trial court had jurisdiction to hear the appeal, but we reverse its judgment based on the substance of the appeal, not its jurisdiction to hear the same. To the extent AHI argues that ADIR did not raise the issue of jurisdiction or the trial court’s inability to reverse based on ADIR’s previous determination that AHI was a successor in interest to Linden Lumber before the trial court, we note that ADIR made similar arguments to the trial court both during the hearing and in its postjudgment motion.


author: BRYAN, Judge.

text:
    Tina NEAL v. SEM RAY, INC., and Ronder Stringer.
    2091068.
    Court of Civil Appeals of Alabama.
    Feb. 11, 2011.

      Anthony E. Ifediba and Adedapo T. Ag-boola of The Ifediba Law Group, Birmingham, for appellant.
    S. Anthony Higgins of Holtsford Gilli-land Higgins Hitson & Howard, P.C., Montgomery, for appellees.
   BRYAN, Judge.

Tina Neal, the plaintiff below, appeals from a partial summary judgment in favor of Sem Ray, Inc. (“Sem Ray”), and Ronder Stringer, two of the defendants below, with respect to Neal’s claim of negligence in the operation of a dump truck. We affirm.

The following facts are undisputed. Stringer and Neal are cousins. Stringer is employed by Sem Ray as a dump-truck driver. On July 21, 2008, Stringer telephoned Neal’s mother and asked her to ride with Stringer on a trip to deliver a load of gravel to a job site in Atmore; however, Neal’s mother could not ride with Stringer due to a prior engagement. Consequently, Stringer asked Neal to ride with her and keep her company. Initially, Neal did not want to go; however, Neal’s mother asked Neal to ride with Stringer because Neal’s mother could not go, and Neal agreed to go. The next day, Stringer picked up Neal in Troy at 3:30 a.m., and they headed to Atmore. En route to At-more, the dump truck turned over, and Neal was injured.

On December 19, 2008, Neal sued Stringer, Sem Ray, and First Continental Leasing, stating claims of negligence and wantonness in the operation of the dump truck against all the defendants; claims of negligence and wantonness in the hiring, training, and supervision of Stringer against Sem Ray and First Continental Leasing; claims of negligence and wantonness in the entrustment of the dump truck to Stringer against Sem Ray and First Continental Leasing; and claims of negligence and wantonness jointly and severally against Stringer, Sem Ray, First Continental Leasing, and fictitiously named parties.

Answering, Stringer, Sem Ray, and First Continental Leasing denied liability and, as an affirmative defense, asserted that they were not liable with respect to Neal’s negligence claims because, they said, Neal was a guest in the dump truck within the meaning of the Alabama Guest Statute, § 32-1-2, Ala.Code 1975, when she was injured. Subsequently, Stringer, Sem Ray, and First Continental Leasing moved for a summary judgment, which Neal opposed.

Following a hearing, the trial court entered an order denying the summary-judgment motion with respect to the claim of wantonness in the operation of the dump truck against Stringer and granting the summary-judgment motion with respect to all Neal’s other claims. The trial court did not certify the partial summary judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., and it subsequently conducted a jury trial with respect to Neal’s claim of wantonness in the operation of the dump truck against Stringer. The jury returned a verdict in favor of Stringer with respect to that claim, and the trial court entered a judgment on that jury verdict. Thereafter, Neal timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In her brief to this court, Neal argues and cites authority only with respect to her claim of negligence in the operation of the dump truck against Stringer and Sem Ray. In Tucker v. Cullman-Jefferson Counties Gas District, 864 So.2d 317, 319 (Ala.2003), the supreme court stated:

“In his brief to this Court Tucker argues and cites authority only with respect to the summary judgment on his breach-of-contract claim; he never expresses disagreement with the dismissal of his fraud claim or the summary judgment as to his claim alleging ‘other wrongful conduct.’ Apparently, he has elected not to pursue those claims. ‘When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ. App.1996). ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985).’ Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988). Accordingly, we treat the fraud claim and the claim alleging ‘other wrongful conduct’ as having been abandoned by Tucker, and we affirm the judgments as to those claims. Thus, we address only the propriety of the summary judgment on the breach-of-eon-tract claim.”

864 So.2d at 319.

Accordingly, in the case now before us, due to Neal’s failure to present argument and to cite authority regarding any of her claims other than her claim of negligence in the operation of the dump truck against Stringer and Sem Ray, we treat all of her claims other than her claim of negligence in the operation of the dump truck against Stringer and Sem Ray as having been abandoned by Neal, and we affirm the judgments with respect to all of those claims. Thus, we will consider only the propriety of the partial summary judgment with respect to Neal’s claim of negligence in the operation of the dump truck against Stringer and Sem Ray. See Tucker.

Our review of the partial summary judgment with respect to Neal’s claim of negligence in the operation of the dump truck against Stringer and Sem Ray is governed by the following principles:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm, Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 588 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12. ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

Citing Cash v. Caldwell, 603 So.2d 1001 (Ala.1992), Neal argues that the evidence established a genuine issue of material fact regarding whether she was a guest in the dump truck operated by Stringer within the meaning of the Alabama Guest Statute because, she says, the evidence established that she accompanied Stringer at the instance of Stringer for a purpose that benefited Stringer on a trip that was solely for the benefit of Stringer and Sem Ray. In Cash v. Caldwell, the supreme court summarized the facts and the procedural history pertinent to the Cashes’ negligence claim against Caldwell:

“In April 1988, Evelyn and Richard Cash left their home in California for a trip of several weeks across the country in their mobile home. They planned to stop in Birmingham to see Richard’s sister, Mary Cash Caldwell, and his mother, Mrs. Sweatt, who was ill. While the Cashes were in Texas, Richard telephoned Mary, and she asked them to come to Birmingham because their mother’s condition was deteriorating and she needed help.
“On April 18, 1988, Evelyn drove with Mary to take Mrs. Sweatt to see her physician in Birmingham. The doctor admitted Mrs. Sweatt to the hospital immediately. Mary and Evelyn returned home to retrieve Mrs. Sweatt’s personal belongings. That evening Mary, Evelyn, and Richard returned to the hospital to see Mrs. Sweatt.
“The three left the hospital in Mary’s automobile, just as it was beginning to rain. Mary was driving, Richard was in the right front seat, and Evelyn was in the right back seat. All three were wearing seat belts. It began raining very hard, and soon there was three to four inches of water on the road. As Mary began to make a sharp left turn, the car went into a counterclockwise spin and hit a telephone pole. Evelyn was seriously injured when her side of the car was crushed as it hit the telephone pole. On April 16, 1990, Evelyn and Richard sued Mary; Evelyn sought damages based on her personal injuries arising out of the accident, and Richard sought damages based on an alleged loss of consortium.
“On December 16, 1991, Mary moved for a summary judgment, claiming that Evelyn was a guest in the car and was therefore barred from suing her, as the automobile driver, under § 32-1-2, Code of Alabama 1975. The trial judge concluded ... that both Evelyn and Richard were ‘guests’ in Mary’s car, so, as a matter of law, under § 82-1-2, they could have no recovery based on negligence. ...”

603 So.2d at 1002. Reversing the summary judgment with respect to Evelyn and Richard’s negligence claim, the supreme court stated:

“We must determine whether the trial court erred in holding that the Cashes were ‘guests’ as a matter of law. The Cashes contend that they were ‘passengers,’ and thus are not barred from suing under the Alabama Guest Statute, § 32-1-2. They argue further that if the legislature had intended to limit liability in family relationships in all situations, it would have so provided in the Guest Statute.
“The statute does not define the word ‘guest’; therefore, we must look to case law. In Wagnon v. Patterson, 260 Ala. 297, 303, 70 So.2d 244 (1954), this Court stated as follows:
“ ‘ “The general rule is that if the transportation of a rider confers a benefit only on the person to whom the ride is given, and no benefits other than such as are incidental to hospitality, goodwill or the like, on the person furnishing the transportation, the rider is a guest; but if his carriage tends to promote the mutual interest of both himself and [the] driver for their common benefit, thus creating a joint business relationship between the motorist and his rider, or where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest.” ’
“Quoting Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87 (1949).
“The facts in this case would permit a factfinder to conclude that the Cashes were promoting their own mutual interest and that of their sister and sister-in-law in caring for Richard and Mary’s ailing mother. They establish that Mary asked her brother and his wife to come to Birmingham earlier than they had planned to, in order to help her with the care of the ailing mother. We cannot say, as a matter of law, that the Cashes were ‘guests’ within the meaning of the Guest Statute under these circumstances. Whether the Cashes were guests or were passengers is a question for the jury, and that question should not have been determined by the trial judge as a matter of law. Roe v. Lewis, 416 So.2d 750 (Ala.1982); Sellers v. Sexton, 576 So.2d 172 (Ala.1991).”

603 So.2d at 1003.

Although the facts in Cash v. Caldwell differ from the facts in the case now before us, the opinion in Cash v. Caldwell states that “ ‘ “where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver on a trip which is primarily for the attainment of some objective of the driver, the rider is a passenger and not a guest.” ’ ” 603 So.2d at 1003. Neal argues that that language in Cash v. Caldwell indicates that she was a passenger rather than a guest in the dump truck because, she says, the evidence in the case now before us would permit a jury to find that Stringer asked Neal to ride with her in order to render a service to Stringer, i.e., keep her company, on a trip that was solely for the attainment of an objective of Stringer and Sem Ray.

Stringer and Sem Ray argue, however, that, as a matter of law, Neal was a guest because, they say, (1) the trip was purely social in nature; (2) Neal accompanied Stringer at the instance of Neal’s mother rather than Stringer; and (3) the only benefit received by Stringer from Neal’s riding with Stringer was the benefit of companionship, which was only an incidental benefit and was neither material nor tangible. We disagree with Stringer and Sem Ray’s argument that the purpose of the trip was purely social because the purpose of the trip was to deliver gravel for Sem Ray; however, we agree that it is undisputed that Stringer’s purpose in asking Neal to accompany her was purely social because the undisputed evidence established that Stringer asked Neal to ride with her to keep her company. With respect to Stringer and Sem Ray’s argument that Neal accompanied Stringer at the instance of Neal’s mother rather than Stringer, there was evidence from which a fact-finder could find that Stringer issued the original invitation and, therefore, that Neal rode with Stringer at Stringer’s instance, although Neal’s mother played a role in persuading Neal to accept the invitation. We agree with Stringer and Sem Ray’s argument that the undisputed evidence established that the only benefit Neal provided to Stringer was companionship. Thus, the issue before us is whether, as a matter of law, a rider is a guest “ ‘ “where the rider accompanies the driver at the instance of the latter for the purpose of having the rider render a benefit or service to the driver [solely in the form of companionship] on a trip which is primarily for the attainment of some objective of the driver.” ’ ” Cash v. Caldwell, 603 So.2d at 1003.

In Klein v. Harris, 268 Ala. 540, 545, 108 So.2d 425, 429 (1958), our supreme court stated:

“As said in Blair v. Greene, 247 Ala. 104, 22 So.2d 834 [ (1945) ], quoting from another case, if the trip is for any benefit to the driver (defendant), conferred or anticipated, it is sufficient to take the case out of the guest statute. But it is said in Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434, 437, [ (1955) ] that a mere incidental benefit to the driver is not sufficient. The benefit thus conferred must in some way have induced the driver to extend the offer to the rider. It must be ‘material and tangible and must flow from the transportation provided’.”

However, the parties have not cited any cases specifically addressing the issue whether companionship is merely incidental or is material and tangible for purposes of determining whether a rider is a passenger or a guest. Our research has not located an Alabama case on point; however, we have located a decision of the Ohio Supreme Court that provides guidance. In Stiltner v. Bahner, 10 Ohio St.2d 216, 227 N.E.2d 192 (1967), the driver had telephoned the rider at a bar-restaurant and asked the rider to spend the night at the driver’s home because the driver was lonely. The rider refused the driver’s request; however, the driver drove to the bar-restaurant and, by repeated requests, persuaded the rider to spend the night at the driver’s home. While the rider was riding with the driver en route to the driver’s home, an accident occurred and the rider was injured. The rider then sued the driver, stating a claim of negligence. The trial court directed a verdict in favor of the driver based on the Ohio Guest Statute, which was then in effect. The rider appealed to the Ohio Court of Appeals, which reversed the judgment of the trial court. The driver then appealed to the Ohio Supreme Court. Reversing the judgment of the Ohio Court of Appeals, the Ohio Supreme Court stated:

“The first question to be determined is whether the evidence was such as to enable reasonable minds to conclude that [the rider], at the time of the accident in which she was injured, was riding in [the driver’s] automobile as ‘a guest ... while ... being transported without payment’ for her transportation, within the meaning of those words as used in the Ohio Guest Statute, Section 4515.02, Revised Code.
“Payment, within the meaning of Section 4515.02, Revised Code, must be payment or benefit accepted or agreed upon by the driver as consideration for the transportation. However, such payment or benefit need not be money. It is sufficient that the guest, by his presence in the automobile, renders service or assistance intended to benefit primarily the driver, or intends to render service or assistance at the destination which will primarily benefit the driver, or has before the trip rendered such service or assistance, if the benefit or service is material, as distinguished from a mere social benefit, or nominal or incidental contribution to expenses.
“In the instant case, no money was agreed upon as consideration. A non-monetary benefit of a rider’s company, society or companionship is not such a material consideration as may constitute payment and remove the rider from the status of ‘a guest ... being transported without payment therefor.’
“If we were to hold that [the rider] in the instant case was not a guest ‘being transported without payment therefor,’ then any time a driver-host, desiring to attend a social or sporting event or even watch T.V. at home but wanting companionship, should persuade a reluctant friend to join him, the friend, while being transported for such purpose, would be a paying guest.
“A reluctant guest may still be a guest within the meaning of the guest statute; and the fact, that the host-driver is much more interested in having the rider’s social companionship than the rider is in giving that social companionship, cannot support a conclusion either that the rider is not a guest or that he is paying for his transportation.
“The Court of Appeals in the instant case relied upon its unreported opinion in Hogan v. Finch, which was affirmed in 8 Ohio St.2d 31, 222 N.E.2d 633 (1966). However, there, the [driver] agreed to transport [the rider] to her home, if the [rider] would look after [the driver’s] younger brother at a swimming club. The [rider] there was not giving only the pleasure of her company, but had performed a material service for the driver in return for her transportation.
“We conclude that, where a driver by repeated requests persuades a friend to go in the driver’s vehicle to spend the night at the driver’s home because the driver is lonely, and where no other service is to be performed by the friend, and no benefit other than his company is to be conferred upon the driver, such friend, as a matter of law, becomes a guest ‘being transported without payment therefor’ within the meaning of the Ohio Guest Statute.”

10 Ohio St.2d at 218-20, 227 N.E.2d at 194-95.

We find Stiltner persuasive and conclude that, because the only benefit Neal’s riding with Stringer conferred on Stringer was companionship, Neal, as a matter of law, was a guest in the dump truck driven by Stringer. Accordingly, we affirm the partial summary judgment in favor of Stringer and Sem Ray with respect to Neal’s claim of negligence in the operation of the dump truck.

AFFIRMED.

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

      . The record on appeal does not indicate the nature of First Continental Leasing’s relationship with Stringer, Sem Ray, the dump truck, or the accident.

      . Section 32-1-2 provides:
      “The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the willful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

      . Approximately 8 years after Stiltner was decided, the Ohio Supreme Court, in Primes v. Tyler, 43 Ohio St.2d 195, 331 N.E.2d 723 (1975), held that the Ohio Guest Statute, Ohio Rev.Code Ann. § 4515.02, was unconstitutional; however, when Stiltner was decided, the Ohio Guest Statute was the same as the Alabama Guest Statute in all material respects, although its language was not identical to the language of the Alabama Guest Statute. The Ohio Guest Statute provided:

        "The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest,' resulting from the operation of said motor vehicle, while such guest is being transported without payment therefor in or upon said motor vehicle, unless such injuries or death are caused by the willful or wanton misconduct or such operator, owner, or person responsible for the operation of said motor vehicle.”