REL: 12/31/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2008 -2009
_________________________
2070628
_________________________
Alabama Department of Revenue
v.
Edna Harris
Appeal from Mobile Circuit Court
(CV-07-2097.51)
THOMAS, Judge.
The Alabama Department of Revenue ("DOR") appeals from a
summary judgment entered by the Mobile Circuit Court in favor
of Edna Harris.
That judgment overturned a ruling by an
administrative law judge ("ALJ") upholding DOR's revocation of
2070628
Harris's certificate of title to a vehicle.
We vacate the
circuit court's judgment because that court had no subjectmatter jurisdiction.
On July 14, 2006, DOR, in compliance with the first
sentence of § 40-2A-8(a), Ala. Code 1975, notified Harris that
it was revoking the certificate of title to her vehicle, a
1999 Lexus ES 300 automobile.
Pursuant to the third sentence
of § 40-2A-8(a), Harris appealed to DOR's Administrative Law
Division.
On
September
27,
2007,
an
revocation of the certificate of title.
ALJ
upheld
DOR's
On October 9, 2007,
Harris filed a notice of appeal from the ALJ's ruling to the
Mobile Circuit Court.
In the circuit court, Harris and DOR filed cross-motions
for a summary judgment, as well as supporting briefs.
On
February 27, 2008, the circuit court granted Harris's motion
and entered a summary judgment in her favor, ordering DOR to
issue Harris a valid certificate of title to the vehicle.
On
April 4, 2008, DOR timely appealed to this court.
On appeal, DOR argues that the circuit court was without
subject-matter
jurisdiction
to
entertain
Harris's
appeal
because Harris had failed to perfect the appeal in compliance
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2070628
with § 40-2A-9(g)(1), Ala. Code 1975.
That section provides,
in pertinent part:
"(g) Appeals to circuit court.
"(1)a.
Either
the
taxpayer
or
the
department may appeal to circuit court from
a final order issued by the administrative
law judge by filing a notice of appeal with
the Administrative Law Division and with
the circuit court within 30 days from the
date of entry of the final order. Any
appeal by the department shall be filed
with the circuit court of the county in
which the taxpayer resides or has a
principal place of business in Alabama. If
the taxpayer neither resides in Alabama nor
has a principal place of business in
Alabama, the appeal may be made to the
Circuit
Court
of
Montgomery
County,
Alabama. Any appeal by the taxpayer may be
taken to the Circuit Court of Montgomery
County, Alabama, or to the circuit court of
the county in which the taxpayer resides or
has a principal place of business in
Alabama.
"....
"c.1. ...[T]he circuit court shall dismiss
any appeal that is not timely filed with
the Administrative Law Division and the
circuit court as herein provided ...."
(Emphasis added.)
Section 40-2A-9(g)(1)a. requires a party
who wishes to appeal a final order by an ALJ to file a notice
of appeal with both the circuit court and DOR's Administrative
Law Division within 30 days of the entry of the final order.
Section
40-2A-9(g)(1)c.1
requires
3
the
circuit
court
to
2070628
"'dismiss any
appeal that
is
not timely filed with
Administrative Law Division and the circuit court.'"
the
Alabama
Dep't. of Revenue v. Morton, 892 So. 2d 940, 942-43 (Ala. Civ.
App. 2004)).
filed
a
The record contains no indication that Harris
notice
of
appeal
with
DOR's
Administrative
Law
Division.
In Morton, this court held:
"Because the taxpayers "failed to comply with
the requirements of § 40-2A-9(g)(1), the trial court
lacked jurisdiction over [their] appeal, and its
judgment is void." State Dep't of Revenue v. Garner,
812 So. 2d 380, 385 (Ala. Civ. App. 2001). A void
judgment will not support an appeal, and we
therefore dismiss the Department's appeal; however,
we instruct the Barbour Circuit Court to vacate its
judgment in favor of the taxpayers. See id. (citing
State Dep't of Revenue v. Zegarelli, 676 So. 2d 354,
356 (Ala. Civ. App. 1996)). Our conclusion obviates
the need to consider the parties' arguments
regarding the substantive correctness of the trial
court's judgment, including its interpretation of §
40-2A-7, Ala. Code 1975, as allowing taxpayers to
seek refunds more than three years after the filing
of a tax return."
892 So. 2d at 943.
Similarly, in the present case, we
dismiss DOR's appeal and instruct the circuit court to vacate
its judgment in favor of Harris.
APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.
Thompson, P.J., and Pittman, Bryan, and Moore, JJ.,
concur.
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