Court of Civil Appeals Rejects Constitutional Challenge to Add-Back Tax Statute

The Court  of Civil Appeals’ opinion in Surtees v. VFJ Ventures, Inc., No. 2060478 (Ala. Civ. App. Feb. 8, 2008), contains an interesting, lengthy discussion of Alabama’s add-back statute.  After it rejected the reasons that appellee VFJ offered to support the trial court’s finding that the corporate income tax assessment that the Alabama Department of Revenue made against VFJ pursuant to Alabama’s add-back statute was in error, the Court of Civil Appeals reviewed, and ultimately refused, VFJ’s constitutional challenge to the statute.  In doing so, the Court of Civil Appeals applied the following standard of review: “we ‘approach the question [of the constitutionality of a statute] with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of government.’. . . Moreover, where the validity of a statute is assailed and there are two possible interpretations, by one of which the statute would be unconstitutional and by the other would be valid, the courts should adopt the construction [that] would uphold it.’ . . . We must afford the Legislature the highest degree of deference, and construe its acts as constitutional if their language so permits.” Id. at 61-62 (internal citations omitted).

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Court of Civil Appeals Has Jurisdiction to Issue Writ of Mandamus

A writ of mandamus provides a party with extraordinary relief because it permits appellate relief from a trial court order before a final judgment. To obtain a writ of mandamus, a party must demonstrate that he has a “clear legal right” to the requested relief; the respondent has an imperative duty which the respondent has refused to perform; the petitioner lacks an alternative remedy; and the appellate court has jurisdiction over the matter.  Ala. Code §12-3-10 (1975) supplies jurisdiction to the Alabama Court of Civil Appeals to issue writs of mandamus in workers’ compensation cases. Ex parte Steve Cagle Trucking Co., No. 2061105 (Ala. Civ. App. Feb. 8, 2008).

Court Reaches Merits of Cert Petition though Brief Non-Compliant

Although the petitioner’s brief did not contain all of the sections that ARAP 28 mandates, the Alabama Supreme Court entertained the petitioner’s request for a writ of certiorari to the Alabama Court of Civil Appeals.  Ex parte Cleghorne,  No. 1061014 (Ala. Feb. 8, 2008)  The brief that the petitioner filed in the Alabama Supreme Court in this child custody matter did not contain a statement of jurisdiction or a statement of the standard of review. 

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Cases Released February 8, 2008

From the Alabama Court of Civil Appeals:

Ex parte Steve Cagle Trucking Company, In re: Cagle v. Steve Cagle Trucking Company

Surtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue v. VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc.


From the Supreme Court of Alabama:

Ex parte Earl R. Cleghorn, In re: Bledsoe v. Cleghorn

Motion for Award of Costs and Fees is Not a Post-Judgment Motion Pursuant to Rule 59

In Ford v. Jefferson County and Jefferson County Juvenile Services, No. 2060169 (Ala. Civ. App. February 2, 2008), the court held that a post-trial request for costs and fees is not a post-judgment motion pursuant to Rule 59.  Therefore, it was not subject to the 30-day time requirement set forth in Rule 59(e).

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Cases Released February 1, 2008

From the Alabama Court of Civil Appeals:

V.G. v. Madison Department of Human Resources

Locker v. City of St. Florian, et al.

Dauphin Island Property Owners Association, Inc. v. Pitts

Vann v. Cook

J.T. v. A.B.

Ford v. Jefferson County

Kovakas v. Kovakas

Russell v. Russell

Addison Fabricators, Inc. v. Davis


From the Supreme Court of Alabama:

Ex parte St. Vincent’s Hospital, In re: Wadley v. St. Vincent’s, et al.

Ex parte City of Birmingham, In re: City of Birmingham v. George

Baldwin County Electric Membership Corporation v. City of Fairhope

Union Planters Bank, N.A. v. People of the State of New York