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ELECTRONICALLY FILED
4/2/2016 10:01 AM
38-CV-2015-900358.00
CIRCUIT COURT OF
HOUSTON COUNTY, ALABAMA
CARLA H. WOODALL, CLERK

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

STATE OF ALABAMA
DOUGLAS ALBERT VALESKA,
DISTRICT ATTORNEY OF THE 20TH
JUDICIAL CIRCUIT OF ALABAMA,

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COMPLAINANT.
v.
JAMES TIMOTHY VIBBERT,
CONSOLIDATED SOLUTIONS, INC., AND
TWENTY-FIVE THOUSAND AND NINETYSEVEN DOLLARS, U.S. CURRENCY,
RESPONDENTS.

Case No.: 38-CV-2015-900358

BRIEF IN SUPPORT OF RESPONDENTS' MOTION FOR SUMMARY JUDGMENT

COMES NOW Respondents, James Timothy Vibbert and Consolidated Solutions Inc.,
and submits this brief in support of their Motion for Summary Judgment. Respondents request
the Court grant their Motion for Summary Judgment and dismiss with prejudice all claims
brought against them as there are no genuine issues of material fact and Respondents are entitled
to judgment as a matter of law.
I.

SUMMARY OF THE CASE

This action stems from a two (2) count civil forfeiture complaint filed against
Respondents seeking forfeiture of $25,097.00 to the State of Alabama. Prior to the filing of this
action, the State requested and was successful in obtaining a Rule 64 Prejudgment Seizure of
Property in Houston County case number CV-2015-900341. The civil forfeiture complaint in
this action arises from the sale of two (2) vehicles to a third party.

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In Count I, the State alleges that Respondents knew or should have known the third party
was an illegal drug dealer and that the money used to purchase said vehicles was the proceeds of
illegal drug sales and that the proceeds of said transactions are subject to condemnation pursuant
to section 20-2-93 of the Code of Alabama. In Count II, the State alleges that Respondents'
committed a felony in assisting a third party in falsifying title registrations of two motor vehicles
and that the proceeds of said transactions are subject to condemnation pursuant to section 15-560, et seq of the Code of Alabama.
The undisputed facts of this case show: (1) Respondents did not know nor should they
have known that the third party was an illegal drug dealer; (2) The money used to purchase the
vehicles is not traceable to a transaction for the sale or receipt of controlled substances; (3)
Respondents did not know nor should they have known that the money used by the third party to
purchase the vehicles was the proceeds of illegal drug sales; (4) Respondents had no legal duty
to investigate the source of the funds used by the third party; (5) Respondents did not violate any
felony in either sales transactions and has in fact been found Not Guilty of said allegations and
therefore the proceeds of said transactions are not subject to condemnation.
II.

PROCEDURAL HISTORY

The State began this action with the filing of a Rule 64 Prejudgment Seizure request in
Houston County case number CV-2015-900341 on or about June 22, 2015. An order was issued
granting the State's request on the same date. The State filed the Complaint in this action on or
about June 30, 2015. Respondents were served on July 8, 2015. The Respondents filed an
Answer denying the claims in the Complaint on or about July 30, 2015. Respondents filed a
Motion to Dissolve Prejudgment Seizure on August 5, 2015. Said motion was denied. On
November 17, 2015, Respondents filed a Motion to Return Property after the State dismissed the

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parallel criminal case. A hearing on said Motion was scheduled for January 27, 2016. Prior to
the scheduled hearing, the State re-indicted Respondent Vibbert. Respondents withdrew the
Motion to Return Property on January 27, 2016. Respondent Vibbert was found Not Guilty in
the parallel criminal case (CC-16-389) on February 24, 2016.
III.

NARRATIVE STATEMENT OF UNDISPUTED FACTS

Vibbert is a resident of Houston County, AL residing at 44 Woodmere Drive, Dothan,

AL. (See p.113 of the Trial Transcript in CC-16-389 attached hereto as Exhibit B). He is a
member of the Dothan/Houston County Rotary Club, and has previously served as President
Elect, Vice President and Secretary for said organization. (See Id.)(See also p. 46-47 of the
Deposition of James Vibbert attached hereto as Exhibit C). Vibbert also served on the Board
of Directors for the Dothan Area Chamber of Commerce, and was designated as Ambassador of
the Year three (3) straight years by said organization. (See p.113-114, Exhibit B)(See also p. 4647, Exhibit C).
On or about January 17, 2015, Respondents completed a transaction for the commercial
sale of a 2007 Chevrolet Tahoe to Brantley Taylor (hereinafter "Taylor"). (See a copy of the
Buyer's Order attached hereto as Exhibit "A"). Respondent Vibbert is a designated agent of the
Alabama Department of Revenue for the commercial sale of vehicles and his status as such has
been renewed while this action and the criminal case have been pending. (See p. 116, Exhibit
B)(See also p. 45,48-49,55, Exhibit C). The agreed upon sales price for the 2007 Tahoe was
$9,097.75. Taylor traded in a 2004 Chevrolet Tahoe and paid $2,597.75 in cash to finalize the
deal. (Exhibit A). Respondents receipted the cash into the business and deposited the cash
directly into their business bank account. (See p.119, Exhibit B).

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On or about March 13, 2015, Respondents competed a transaction for the sale of a 2009
BMW 3-series convertible for the sales price of $16,536.50. (See a copy of the Buyer's Order
attached hereto as Exhibit "D"). Taylor paid the full amount in cash. (See Exhibit D)(See also
p.10 Exhibit C)(See also p.25,27 of the deposition of Brantley Taylor attached hereto as Exhibit
"E")(See also p.128, Exhibit B). Respondents receipted said cash into the business and deposited
the cash directly into their business bank account. (See p.128, Exhibit B).
Taylor never disclosed to Respondents the source of the money used in the transactions
for either vehicle. (See p.23,35,121,127-128, Exhibit B)(See also p.27-28, 39, Exhibit E). In
fact Taylor has testified, that at least a portion, if not all, of the money used in these transactions
came from him "flipping" vehicles that he had previously purchased and also from a $20,000.00
inheritance he claimed to have received from a relative. (See p.38-40, Exhibit B). Respondents
had no knowledge that the money used by Taylor may have come from illegal drug sales. (See
p.121, Exhibit B). Respondents never asked Taylor about the source of any money used nor did
they have any indication that the source of the money may have been from illegal drug sales.
(See p.35,121, Exhibit B).
As a designated agent with the Alabama Department of Revenue, Respondent Vibbert
has no duty to make any inquiry as to the source of any money used to purchase a vehicle. (See
p.127, Exhibit B). Further, the transactions for the Tahoe and BMW occurred during what is
sometimes referred to in the car business as tax refund season. (See p. 33, Exhibit C) (See also
p.126-127,142-143 Exhibit B). During tax refund season, it is common place in the car
business for individuals to present themselves with large amounts of cash to use to purchase a
vehicle. (Id.).

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The trial court in the criminal case stated The Court is not willing to extend forfeiture
laws to businesses who are not involved in the drug trade. Otherwise, you are going to draw in
dealerships, rental car companies, et cetera. There would have to be more, a pattern of practice
for the car dealer bending the law to assist drug dealers. This is but one example. But one
example. And I am not sure that Mr. Vibbert fits that. (See p.156-157, Exhibit B). Finally, the
State has not offered any proof whatsoever that the source of any money used by Taylor were the
proceeds of illegal drug proceeds. (See Exhibit B)(See also Exhibit C)(See also Exhibit E).
During the transaction for either the Tahoe or BMW, Taylor never asked Respondents to
do anything illegal. (See p.8, Exhibit E)
Respondent Vibbert was charged with certain criminal charges in Houston County case
number CC-2016-389. Vibbert was charged in a two (2) count indictment. (See a copy of the
Indictment attached hereto as Exhibit "F"). Count I charged Vibbert with violating Section 32-812(4), which is a felony. Specifically, it charged that Vibbert, with fraudulent intent, "did sell a
vehicle to Brantley Taylor and did title the vehicle in the name of April Mills at a false address
and listed a false lienholder, knowing said title information was false."County II charged Vibbert
with violation Section 32-8-13(1), which is a misdemeanor. The Indictment references a Count
III, however, said Count was never scanned into the clerk's file and therefore never served upon
Vibbert. Consequently, the trial court did not consider said Count III. (See the Case Action
Summary attached hereto as Exhibit "G") (See p.55-57,61-63,103-104,106-107 Exhibit B). The
trial court found Vibbert Not Guilty of all counts. (See Order attached hereto as Exhibit "H").
Vibbert had zero intent to commit any crime or to circumvent any civil forfeiture laws.
(See p.22-23,129-133,143, Exhibit B)(See also p.40,42,48, Exhibit E). The trial court in the

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criminal case addressed this issue and specifically noted there was no fraudulent intent. (See
p.154,160, Exhibit B).
The trial court found that, per Count I of the Indictment, the title for the BMW did not
contain a "false address" nor did it list a "false lienholder." (See p.156, Exhibit B). Lisa
Blankenship, a supervisor in the Motor Vehicle Division of the Alabama Department of Revenue
testified for the State during the criminal trial. (See p.58, Exhibit B). She confirmed the only
requirements as to the "owner" portion of the vehicle Title is as follows: Must be a legal resident
of State of Alabama, the Person or Corporation has to be real and has to actually exist, and the
address listed must be a real Alabama address to which the United States Postal Services delivers
mail. (See p.65-67, Exhibit B). The same requirements apply to the lienholder. (See p.73-74,
Exhibit B). Further, Blakenship could not point to anything in the "Title Application" for the
BMW that violated any rules or regulations of the Alabama Department of Revenue. (See p.7072, Exhibit B). The address listed on the title for the BMW is a real address and meets the
requirements as specified by Blankenship. (See p. 14,74). April Mills, who is listed as the
owner of the BMW, is a real person and meets the requirements as specified by Blankenship
(See p.65-67, 82, Exhibit B). Billy Reeder, who is listed as the lien holder for the BMS, is a real
person and meets said requirements. (See p.51-53, 156, Exhibit B). Daniel Mercer, who is listed
as the owner of the Tahoe, is a real person and meets said requirements as well. (See Exhibit
A)(See also p.22-23,37-39, Exhibit E).
IV.

STANDARD OF REVIEW

It is well established under Rule 56 of the Alabama Rules of Civil Procedure that
summary judgment on a claim is proper if, as to that claim, there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. McCarthy v. Mobile Intern.

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Raceway, Inc., 669 So. 2d 960, 962 (Ala. Civ. App. 1995). This rule applies to individual claims
in a multi-claim action. Donald v. City Nat'l Bank of Dothan, 329 So. 2d 92 (Ala. 1976).
The movant for summary judgment has the initial burden of making a prima facie
showing, on the basis of affidavits or other matters enumerated in Rule 56, that (1) there is no
genuine issue of material fact and (2) the movant is entitled to judgment as a matter of law. Hose
v. Winn Dixie Montgomery, Inc., 658 So. 2d 403 (Ala. 1995). Once the movant makes this
prima facie showing, the burden shifts to the non-movant to produce substantial evidence in
support of the non-movant's position. Whiteside v. Movies 10, 628 So. 2d 546 (Ala. 1993).
"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 facts thought to be
proved." West v. Founders Life Assurance Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989).
When ruling on a motion for summary judgment, the trial court must construe evidence
in the light most favorable to the non-movant. Turner v. Westhampton Court, LLC, 903 So. 2d
82, 87 (Ala. 2004). However, when the non-movant offers no substantial evidence to contradict
evidence offered by the movant, the trial court must consider the movant's evidence
uncontradicted, with no genuine issue of material fact remaining. Shows v. Donnell, 631 So. 2d
1010, 1013 (Ala. 1994).
V.
A.

ARGUMENT

The State's claim against Respondents in Count I fail as a matter of law.

1.

The State has failed to establish a prima facie case that the currency is due to
be forfeited.

In a civil forfeiture action, the State has the burden establishing a prima facie case that
the subject currency is due to be forfeited. Agee v. State ex rel. Galanos, 627 So. 2d 960, (Ala.

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Civ. App. 1993). The standard of proof required of the State is reasonable satisfaction. Id. To
establish a prima facie case in this action, the State must prove to a reasonable satisfaction that
the $25,097.00 seized from Respondents was: (1) furnished or intended to be furnished by
claimant in exchange for a controlled substance; (2) traceable to such a transaction; or (3) used or
intended to be used to facilitate a violation of any law of this state concerning controlled
substances. Hillegass v. State, 795 So. 2d 749 (Ala. Civ. App. 2001). Respondents will address
each of these points individually.
a.

The State has failed to prove to a reasonable satisfaction that the currency
was furnished or intended to be furnished by claimant (i.e. Respondents) in
exchange for a controlled substance.

The State has offered no evidence that Respondents used the currency or intended to use
the currency to purchase any controlled substance. (See Exhibit B)(See also Exhibit C)(See also
Exhibit E).
b.

The State has failed to prove to a reasonable satisfaction that the currency
was traceable to such a transaction involving the sale or receipt of
controlled substances.

The State has offered no evidence that the currency was traceable to such a transaction.
(See Exhibit B)(See also Exhibit C)(See also Exhibit E). To the contrary, the States own
witness, Brantley Taylor testified in detail as to the legitimate sources of the currency. Taylor
testified, that at least a portion, if not all, of the money used in these transactions came from him
"flipping" vehicles that he had previously purchased and also from a $20,000.00 inheritance he
claimed to have received from a relative. (See p.38-40, Exhibit B). Taylor testified that he
recently sold a Tahoe for cash. (See p.14, Exhibit E). He purchased a Chevy Avalanche for

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$9,800.00 and sold it for $17,000.00. (See p.14-15, Exhibit E). The Chevy Avalanche
transaction occurred after the BMW transaction, but is offered as an example of the amount of
money Taylor stated he made flipping vehicles.
c.

The State has failed to prove to a reasonable satisfaction that the currency
was used or intended to be used to facilitate a violation of any law of this
state concerning controlled substances.

The seized currency was used in two separate commercial transactions for the purchase
of a used Tahoe and a used BMW. (See Exhibit A)(See also Exhibit D)(See also 3 of
Complaint). Therefore, by the States own admission said currency was not used to facilitate
of violation of any law concerning controlled substances.
Vibbert is a designated agent of the Alabama Department of Revenue and owns and
operates a business focused on the commercial sale of used vehicles. Vibbert was (and still is) a
designated agent of the Alabama Department of Revenue for the commercial sale of vehicles.
(See p. 116, Exhibit B)(See also p. 45,48-49,55 Exhibit C). The sale transactions for the Tahoe
and BMW were done in the ordinary course of his business. Further, the currency used in each
transaction was receipted into his business and then deposited directly into his business bank
account. (See p.119, Exhibit B). The State has failed to offer any evidence that Respondents
intended to use the currency to facilitate a violation of any law concerning controlled
substances.
As outlined in detail above, the State has clearly failed to meet its burden to establish a
prima facie case that the currency is due to be forfeited as specified in Hillegass, and, therefore,
the claims in Count I are due to be dismissed. Further, the trial court in CC-16-389, opined that
the States civil forfeiture theory fails under the facts of this case. (See p.156-157, Exhibit B).

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Not only has the state failed to offer evidence to meet its burden, the evidence actually produced
by its own witnesses completely contradicts the States allegations in the Complaint as to Count I.
2.

Even if the State has established a prima facie case, Respondents had no
knowledge that the currency was traceable to a transaction for the sale or
receipt of controlled substances.

Once the State has established a prima facie case for the forfeiture of property, the
claimant can may still prevail upon a showing of lack of knowledge and that he could not have
obtained that knowledge by the exercise of reasonable diligence. State ex rel. Watkins v. Sellers,
894 So. 2d 733 (Ala. Civ App. 2004).
The evidence has clearly established that Respondents had no knowledge as to the source
of the money used by Taylor for the transactions. Taylor never disclosed to Respondents the
source of the money used in the transactions for either vehicle. (See p.23,35,121,127-128,
Exhibit B)(See also p.27-28, 39, Exhibit E). Respondents had no knowledge that the money
used by Taylor may have come from illegal drug sales. (See p.121, Exhibit B). Respondents
never asked Taylor about the source of any money used nor did they have any indication that the
source of the money may have been from illegal drug sales. (See p.35,121, Exhibit B).
The evidence has also clearly established that Respondents could not have obtained that
knowledge by the exercise of reasonable diligence. As a designated agent with the Alabama
Department of Revenue, Respondent Vibbert has no duty to make any inquiry as to the source of
any money used to purchase a vehicle. (See p.127, Exhibit B). Further, the transactions for the
Tahoe and BMW occurred during what is sometimes referred to in the car business as tax refund
season. (See p. 33, Exhibit C) (See also p.126-127,142-143 Exhibit B). During tax refund
season, it is common place in the car business for individuals to present themselves with large

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amounts of cash to use to purchase a vehicle. (Id.). There was nothing about these transactions
with Brantley that were out of the ordinary for Respondents. (Id.).
Finally, Respondents did not know nor should they have known Taylor was a drug dealer.
Count I of the Complaint alleges, in part, that Respondents "knew or should have known"
Brantley Taylor "was an illegal drug dealer." (See 3 of Complaint). The following individuals
have now testified under oath and subject to cross examination in this matter or the parallel
criminal case: Agent Demetrius Bogan, April Mills, Brantley Taylor, Billy Reeder, Lisa
Blankenship, James Vibbert. None of the witnesses have offered any proof that Respondents
knew Taylor was a drug dealer. (See Exhibit B)(See also Exhibit C)(See also Exhibit E).
For those reasons, it is clear that the evidence established the affirmative defense of lack
of knowledge as detailed in Watkins, and, therefore, the States claims in Count I are due to be
dismissed.
B.

The States claims as to Count II fail as a matter of law.

Section 15-5-61 of the Code of Alabama states: Any proceeds derived from, or

realized through the commission of a felony offense, as defined in this article, is subject to
civil forfeiture. (Id.). Section 15-5-62 defines a felony offense as any action that could be
charged as a felony criminal offense under the Code of Alabama 1975, whether or not a formal
criminal prosecution began at the time the forfeiture was initiated. (Id.). Section 15-5-63
places the burden of proof on the State and said burden is described as reasonable satisfaction.
(Id.).
The felony offense alleged to have been committed by Respondent Vibbert can be
found in 8 of the Complaint. It states, in part, that Respondent did advise and assist a third
party in falsifying title registrations of two motor vehicles in violation of Alabama [law]

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constituting a felony. The Court can look to Count I of the Indictment found in CC-16-389 for
guidance as to the exact felony Vibbert was accused of committing. (See Exhibit F). It should
be further noted that said crime specifically requires a mens rea of fraudulent intent by Vibbert.
(Id.).
The evidence has clearly established that Vibbert had zero intent to commit any crime or
to circumvent any civil forfeiture laws. (See p.22-23,129-133,143, Exhibit B)(See also
p.40,42,48, Exhibit E). The trial court in the criminal case addressed this issue and
specifically noted there was no fraudulent intent. (See p.154,160, Exhibit B). The trial court
found Vibbert Not Guilty of all counts. (See Order attached hereto as Exhibit "H").
The trial court found that, per Count I of the Indictment, the title for the BMW did not
contain a "false address" nor did it list a "false lienholder." (See p.156, Exhibit B). Lisa
Blankenship, a supervisor in the Motor Vehicle Division of the Alabama Department of Revenue
testified for the State during the criminal trial. (See p.58, Exhibit B). She confirmed the only
requirements as to the "owner" portion of the vehicle Title is as follows: Must be a legal resident
of State of Alabama, the Person or Corporation has to be real and has to actually exist, and the
address listed must be a real Alabama address to which the United States Postal Services delivers
mail. (See p.65-67, Exhibit B). The same requirements apply to the lienholder. (See p.73-74,
Exhibit B).
Further, Blakenship could not point to anything in the "Title Application" for the BMW
that violated any rules or regulations of the Alabama Department of Revenue. (See p.70-72,
Exhibit B). The address listed on the title for the BMW is a real address and meets the
requirements as specified by Blankenship. (See p. 14,74). April Mills is listed as the owner of
the BMW, and she is a real person meeting the requirements as specified by Blankenship (See

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p.65-67, 82, Exhibit B). Billy Reeder is listed as the lien holder of the BMW, and he is a real
person meeting said requirements. (See p.51-53, 156, Exhibit B). Daniel Mercer is listed as the
owner of the Tahoe, and he is a real person meeting said requirements as well. (See Exhibit
A)(See also p.22-23,37-39, Exhibit E).
Based on the foregoing, it is clear that the States evidence as to the claim in Count II
fails as a matter of law and is due to be dismissed.
VI.

CONCLUSION

For the foregoing reasons, Respondents request this Honorable Court to grant their
Motion for Summary Judgment as to all claims alleged against them as there is no genuine issue
of material fact and they are entitled to a judgment as a matter of law.
Respectfully submitted this the 2nd day of April, 2016.

PARKMAN WHITE, LLP

/s/ M. John Steensland, III

M. John Steensland, III (STE168)
Attorney for Respondents
661 W. Main Street
Dothan, AL 36301
334-792-1900
334-712-1352 (FAX)
jsteensland@parkmanlawfirm.com

CERTIFICATE OF SERVICE
I certify that on the 2nd day of April, 2016 the foregoing was filed with the Clerk of the
Court using the electronic filing system which will send notification of such filing to all counsel
of record.

/s/ M. John Steensland, III

Of Counsel
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