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a0a0894e-566c-4495-be2b-7e71e8a079ce | Devon Wilbanks v. City of Chelsea | N/A | 1190942 | Alabama | Alabama Supreme Court | REL: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1190942
Devon Wilbanks v. City of Chelsea (Appeal from Shelby Circuit Court:
CV-19-900452).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | July 9, 2021 |
6824cf30-5850-4e62-9961-d403df310cbe | Ex parte A.P. | N/A | 1200529 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200529
Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.P. v. Morgan County Department of Human
Resources) (Morgan Juvenile Court: JU-14-74.06; Civil Appeals :
2190799).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
37924875-c648-40ef-ba18-5e51383c14b3 | Ex parte VRP Transportation, Inc. | N/A | 1191062 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21,2021
1191062
Ex parte VRP Transportation, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL
(In re: Shamarr Piard and Tabatha Arnold v. VRP Transportation, Inc. and GEICO
Casualty Company) (Macon Circuit Court: CV-18-900127; CV-18-900127.80).
ORDER
The petition for writ of mandamus in this cause is denied.
BRYAN, J. - Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 21st day of May, 2021.
/ra | May 21, 2021 |
2c6bc96a-4b71-49d6-86ea-3cd1ac5384b3 | Hamilton v. Guardian Tax AL, LLC, et al. | N/A | 1200048 | Alabama | Alabama Supreme Court | REL: May 28, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1200048
____________________
Shamblin Lane Hamilton
v.
Guardian Tax AL, LLC, and Carol Denise Hamilton
Appeal from Jefferson Circuit Court
(CV-18-901685)
MENDHEIM, Justice.
Shamblin Lane Hamilton appeals from a Jefferson Circuit Court
judgment concluding that he had no interest in real property located on
1200048
Brookmont Drive in Birmingham ("the property") and ejecting him from
the property. We reverse the circuit court's judgment and remand the
cause.
I. Facts
On May 4, 1992, Rodney J. Stanfa and Beverly M. Stanfa conveyed
the property to Shamblin and Carol Denise Hamilton by general warranty
deed. The Hamiltons owned the property in fee simple subject to a
mortgage to Compass Bank recorded on November 8, 2003.
On August 31, 2004, Shamblin and Carol were divorced, and by
order of the court Shamblin was awarded sole ownership of the property.
The divorce judgment provided, in part: "[T]he Agreement of the parties
filed in this cause, attached hereto, is hereby ratified and approved and
made a part of this decree the same as if fully set out herein and the
parties to this cause are ordered to comply herewith." The "Agreement in
Contemplation of Divorce" attached to the divorce judgment provided,
relevant in part:
"3. [Shamblin] shall become the sole owner of the house and
property located [on] Brookmont Drive, ... subject to the
mortgage thereon, which [Shamblin] assumes and shall make
2
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all future payments thereon. [Shamblin] agrees to indemnify
and hold [Carol] harmless from paying said indebtedness.
"....
"19. Each party will execute and deliver to the other any
documents which may be reasonably required to implement
and accomplish the purpose and intent of this agreement, and
shall do any and all other things necessary to that end. If
either party shall fail to comply with the provision of this
paragraph, this agreement shall constitute an actual grant,
assignment and conveyance of the property and rights in such
matter, and with such force and effect as shall be necessary to
effectuate the terms of this agreement.
"20. Except as herein provided, both [Shamblin] and [Carol]
do hereby forever waive, release and quit claim to the other all
rights ... in and to, or against the property of the other party,
or his or her estate, whether now owned or hereinafter
acquired by such other party. ..."
On February 19, 2009, the divorce judgment was modified by an
agreement of the parties, and an order of the court adopting that
agreement declared that Shamblin had assumed sole responsibility of a
home-equity line of credit that Shamblin and Carol had jointly executed
with Compass Bank. In his filings in the circuit court in this case,
Shamblin asserted that he was still making payments on the home-equity
line of credit as the litigation ensued. Shamblin also alleged that he had
3
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paid off the mortgage on the property in 2010, that he had tried to get
Carol to give him a quitclaim deed verifying that he was the sole owner of
the property, but that she had "failed, refused or neglected" to do so.
The Hamiltons failed to pay the ad valorem real-property taxes on
the property, and on May 20, 2014, the State sold the property at auction
to Mercury Funding, LLC ("Mercury"), for $20,699. The Jefferson Probate
Court issued a tax deed for the property to Mercury on January 2, 2018.
On January 5, 2018, Mercury conveyed its interest in the property
to Guardian Tax AL, LLC ("Guardian"), by quitclaim deed. On April 24,
2018, Guardian filed a complaint for ejectment and to quiet title to the
property against the Hamiltons and Compass Bank. In its complaint,
Guardian asserted that after the tax sale it "has paid the taxes on the
Property, purchased insurance for the Property, commenced/completed
preservation improvements on the Property, and/or incurred attorneys'
fees in relation to the Property." Guardian indicated in the complaint that
Shamblin "may still wrongly claim an interest in the Property and/or be
in possession of the Property despite [Guardian's] attempts to gain
possession and quiet title."
4
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On March 11, 2019, Shamblin filed an answer and a counterclaim in
response to Guardian's complaint. Specifically, Shamblin denied not
paying the ad valorem property taxes on the property, and he asserted
that he had "never received or been served any notice of delinquency for
ad valorem real property taxes" even though he had retained physical
ownership of the property from May 4, 1992, to the present. In his
counterclaim, Shamblin asserted a claim for judicial redemption of the
property pursuant to § 40-10-83, Ala. Code 1975.1 On the same date,
1At the time Shamblin filed his counterclaim in March 2019,
§ 40-10-83, Ala. Code 1975, provided:
"When the action is against the person for whom the
taxes were assessed or the owner of the land at the time of the
sale, his or her heir, devisee, vendee or mortgagee, the court
shall, on motion of the defendant made at any time before the
trial of the action, ascertain (i) the amount paid by the
purchaser at the sale and of the taxes subsequently paid by the
purchaser, together with 12 percent per annum thereon,
subject to the limitations set forth in Section 40-10-122(a);
(ii) with respect to property located within an urban renewal
or urban redevelopment project area designated pursuant to
Chapters 2 or 3 of Title 24, all insurance premiums paid or
owed by the purchaser for casualty loss coverage on insurable
structures and the value of all permanent improvements made
by the purchaser determined in accordance with Section
40-10-122, together with 12 percent per annum thereon;
5
1200048
March 11, 2019, Shamblin filed a "Motion for Judicial Redemption of
Property Sold for Taxes" in which he reiterated his arguments regarding
why he had a right to judicially redeem the property pursuant to
§ 40-10-83.
(iii) with respect to any property which contains a residential
structure at the time of the sale regardless of its location, all
insurance premiums paid or owed by the purchaser for
casualty loss coverage on the residential structure and the
value of all preservation improvements made by the purchaser
determined in accordance with Section 40-10-122, together
with 12 percent per annum thereon, subject to the limitations
set forth in Section 40-10-122(a); and (iv) a reasonable
attorney's fee for the plaintiff's attorney for bringing the
action. The court shall also determine the right, if any, of the
defendant to recover any excess pursuant to Section 40-10-28
and shall apply a credit and direct the payment of the same as
set forth in subsection (b) of Section 40-10-78. Upon such
determination the court shall enter judgment for the amount
so ascertained in favor of the plaintiff against the defendant,
and the judgment shall be a lien on the land sued for. Upon
the payment into court of the amount of the judgment and
costs, the court shall enter judgment for the defendant for the
land, and all title and interest in the land shall by such
judgment be divested out of the owner of the tax deed."
§ 40-10-83 was amended effective January 1, 2020, primarily to change
the interest rate allowed under the statute from 12% to 8%.
6
1200048
On March 20, 2019, Shamblin filed a "Motion to Show Cause"
regarding why he should be permitted to redeem the property. In that
motion, Shamblin alleged, among other things:
"On March 11, 2019[, Guardian] requested a continuance of
the Status Conference scheduled for 11:00 am next day ... to
pursue settlement amongst the Parties. [Guardian's] Attorney
was himself blind-sided by [Carol's] claim the next day that
the matter had been settled with [Guardian's] out-of-State
Attorneys in Georgia and that [Carol] had redeemed the
Property, without recourse to [Shamblin]."
Shamblin then argued that he, not Carol, had a right to redeem the
property because he was the owner of, and in possession of, the property.
On September 12, 2019, Guardian and Carol filed a "Joint
Stipulation of Dismissal" in which they requested dismissal of Guardian
from this action because a settlement agreement purportedly had been
reached between Guardian and Carol. The joint stipulation explained:
"As a part of that agreement, Guardian assigned and
transferred all of its interest in this cause of action and in the
property that is the subject of this lawsuit to Carol D.
Hamilton. Likewise, Carol D. Hamilton has agreed to accept
the liability for any claims raised in the suit, agreeing to
indemnify and defend Guardian against those claims.
Therefore, Guardian and Carol D. Hamilton stipulate to the
dismissal of Guardian and any claims against Guardian --
including the claims or counterclaims that were raised, or
7
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could have been raised -- with prejudice under Ala. R. Civ. P.
41(a). This stipulation is not intended to end the action, but is
intended to dismiss Guardian as a party to the action."
Guardian and Carol did not submit along with their joint stipulation any
documentation regarding their settlement agreement or the quitclaim
deed transferring Guardian's interest in the property to Carol.
On September 23, 2019, Shamblin filed an objection to the joint
stipulation of dismissal that raised several arguments regarding why
Shamblin believed the dismissal of Guardian as a party was not
appropriate, including the fact that no evidence of the terms of the
settlement agreement or of the transfer of interest in the property had
been submitted to the circuit court.
On December 30, 2019, the circuit court entered an order concerning
Shamblin's motion for judicial redemption of the property. The opening
paragraph of that order provided:
"This Cause came before this Court on November 13,
2019, for hearing on a Motion For Judicial Redemption For
Property Sold For Taxes filed by Defendant Shamblin Lane
Hamilton. Appearing for [Guardian] was the Honorable Jeff
Chapman, and appearing for [Shamblin] was the Honorable
Enefaa Fenny. All parties having had the opportunity to
present testimony and evidence, and the Court having
8
1200048
considered the same, it is hereby ORDERED, ADJUDGED and
DECREED as follows:"
(Capitalization in original; emphasis added.) In that order, the circuit
court declared that "[Shamblin] has been in actual physical possession of
the Property at all times relevant to this case and is still in undisturbed
possession at the filing of this Motion." Based on that finding, the circuit
court concluded that, under § 40-10-83, Shamblin "is entitled to judicially
redeem the Property." Accordingly, the circuit court ordered Guardian to
submit a statement of lawful charges within 14 days of the entry of the
order and for Shamblin to submit a response within 14 days thereafter
and to pay into the court charges that were undisputed.
The following day, December 31, 2019, the circuit court entered an
order declaring that the joint stipulation of dismissal was moot. The same
day, the circuit court also entered another order declaring that Shamblin's
motion to show cause why he should be permitted to redeem the property
also was moot.
On January 9, 2020, Guardian filed a motion seeking a 14-day
extension for complying with the circuit court's December 30, 2019, order
9
1200048
"in order to be able to present a statement of charges to the court." On
January 10, 2020, the circuit court granted Guardian's request for a
14-day extension, meaning that it had until January 27, 2020, to file its
statement of lawful charges. However, on February 11, 2020, Carol, with
Guardian's consent, filed a "Motion to Alter, Amend or Vacate and
Renewed Motion to Substitute and Dismiss" in which she requested that
the circuit court vacate its orders of December 30 and December 31, 2019,
on the basis that those orders failed to account for the fact that Guardian
had transferred its interest in the property by quitclaim deed to Carol as
part of their settlement. Accordingly, Carol requested that she be
realigned as the plaintiff and then be given ample time to submit a
statement of lawful charges. Carol also requested that Guardian be
dismissed with prejudice from the action.
On February 11, 2020, Shamblin filed an objection to Carol's motion,
arguing, among other things, that her motion was untimely under
Rule 59(e), Ala. R. Civ. P. The following day, Shamblin filed a motion to
show cause why Guardian and Carol should not be held in contempt
because they had failed to comply with the circuit court's discovery orders
10
1200048
and its December 30, 2019, order requiring the submission of a statement
of lawful charges on the property. On February 12, 2020, Shamblin filed
a "Motion for an Order to Deposit Undisputed Charges with the Clerk of
Court" in which he asserted that on July 30, 2018, Guardian had sent a
statement of lawful charges to Shamblin that requested the sum of
$45,457.56.2 Shamblin stated that he did "not dispute the sum of
$32,216.97 which includes the excess bid amount of $18,000.00."
Shamblin therefore requested an order from the circuit court requiring
him to pay $32,216.97 to the circuit clerk, setting a date for Guardian to
prove any disputed amount of lawful charges, and stating that Shamblin
was entitled to a refund of the excess bid amount from "the Jefferson
County Tax Collector."
On February 28, 2020, Guardian and Carol filed a joint response to
Shamblin's contempt motion in which they contended that the circuit
court's failure to address the settlement between Guardian and Carol had
2Shamblin attached to his motion a copy of the document containing
the $45,457.56 figure. The document is dated July 30, 2018, but it is
labeled "Settlement Worksheet."
11
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caused their delay in responding to court orders. They reiterated that, in
their view, "[a]s part of that settlement, ... [Carol] would be substituted as
Plaintiff and in Guardian’s place." They also contended that, "because
Guardian no longer has an interest in the property, ... the sole party from
which [Shamblin] could redeem the property is [Carol]." Finally, they
insisted that Carol's motion to alter, amend, or vacate the December 30,
2019, order was still pending, so, they insisted, issuing contempt sanctions
would be premature.
On March 3, 2020, the circuit court held a hearing on outstanding
motions in the action.3 On June 26, 2020, the circuit court entered a
judgment quieting title to the property in favor of Carol and ordering
Shamblin to be ejected from the property. The circuit court's judgment
provided:
3Guardian's counsel requested, and subsequently received,
permission from the circuit court to appear by telephone at the March 3,
2020, hearing because, Guardian asserted, "[Carol], and not Guardian, is
the real party in interest, [so] any arguments to be made on the motions
pending before the Court on March 3, 2020, would be made by [Carol's]
counsel."
12
1200048
"This cause was submitted upon the pleadings, the
written and oral motions made in open court, and oral
arguments of the parties. Upon consideration thereof, it is
ORDERED, ADJUDGED and DECREED by the Court as
follows:
"1. The Complaint was filed on the 4th day of April 2018 in
this cause against Defendants Shamblin Hamilton and Carol
Hamilton, seeking to quiet title and eject the Defendants living
in the property.
2. [Guardian] had acquired the property from the purchaser
at a tax sale held on May 20, 2014.
"3. The parties, having Answered, appeared in open court for
a status conference on the 12th day of March, 2019 to discuss
all pending items before the court.
"4. At said hearing, Defendant Carol Hamilton advised the
court that she had reached a settlement agreement with
[Guardian] to redeem and purchase the property at issue by
paying to [Guardian] a sum satisfactory to [Guardian] to
acquire all [Guardian's] rights in the property.
"5. All parties consented to discuss and argued all relevant
items in open court, and the Court took argument on the
issues.
"6. The Court hereby finds as follows:
"a. The Court takes judicial notice that the [Hamiltons]
were previously married and possessed joint ownership of the
property in question, with both parties listed on the deed with
rights of survivorship at the time of the tax sale, and both
13
1200048
remained on the warranty deed at the time this cause was
commenced.
"b. The Court takes judicial notice that the [Hamiltons]
were divorced and that the property was awarded to
Defendant Shamblin Hamilton, with a second mortgage/line of
credit in both parties' names remaining, secured by the
property at issue here.
"c. The Court takes judicial notice that the deed of said
property was never altered in any way following said divorce
and per Ala. Code 1975, § 40-10-8. The books and records of
the probate office are prima facie evidence in this cause. As
such, this Court finds Defendant Carol Hamilton, though no
longer an owner as joint tenant with rights of survivorship
with Defendant Shamblin Hamilton, did have a redeemable
interest in the property as defined by Ala. Code 1975,
§ 40-10-120.[4]
4Section 40-10-120(a), Ala. Code 1975, provides, in part:
"(a) Real estate which hereafter may be sold for taxes
and purchased by the state may be redeemed at any time
before the title passes out of the state or, if purchased by any
other purchaser, may be redeemed at any time within three
years from the date of the sale by the owner, his or her heirs,
or personal representatives, or by any mortgagee or purchaser
of such lands, or any part thereof, or by any person having an
interest therein, or in any part thereof, legal or equitable, in
severalty or as tenant in common, including a judgment
creditor or other creditor having a lien thereon, or on any part
thereof; and an infant or insane person entitled to redeem at
any time before the expiration of three years from the sale may
redeem at any time within one year after the removal of the
14
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"d. In open court, [Guardian] represented that
[Guardian] and Defendant Carol Hamilton entered into a
Settlement Agreement whereby [Guardian] had transferred all
[its] rights, interests, and title to Defendant Carol Hamilton
and [Guardian] further stated they were in agreement to treat
the agreement as a judicial redemption and/or to stipulate to
the substitution and realignment of parties if this Court did
not view this agreement as dispositive.
"e. This Court, having found that Defendant Carol
Hamilton held a redeemable interest in the property; that
Defendant Shamblin Hamilton has failed to redeem the
property; and that [Guardian] and Defendant Carol Hamilton
having entered into an agreement, finds that Defendant Carol
Hamilton has judicially redeemed the property at issue in this
cause ... and is entitled to judgment in her favor.
"f. This Court recognizes Defendant Carol Hamilton,
having acquired all [Guardian's] rights in the property and
having been assigned [Guardian's] interest in this cause, and
hereby enters judgment in favor of Defendant Carol Hamilton
and against Defendant Shamblin Hamilton to quiet title and
ejects Defendant Shamblin Hamilton from the premises.
"g. It is further ORDERED that any interest Defendant
Shamblin Hamilton has in said premises, including his
possessory interest, was terminated by the Settlement
Agreement of the other parties and any interest he may have
claimed is hereby extinguished, and Defendant Shamblin
Hamilton is divested of same.
disability; and such redemption may be of any part of the lands
so sold, which includes the whole of the interest of the
redemptioner. ..."
15
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"h. It is further ORDERED that Defendant Shamblin
Hamilton has thirty (30) days from the date of this Order
(July 26, 2020) to vacate the property. If Defendant Shamblin
Hamilton fails to vacate said property within the time
specified in this Order, the Sheriff is directed to remove
Defendant Shamblin Hamilton by any lawful means."
(Capitalization in original.) On July 18, 2020, Shamblin filed a
postjudgment motion asking the circuit court to alter, amend, or vacate its
June 26, 2020, judgment. On July 20, 2020, Shamblin filed a motion to
stay enforcement of the June 26, 2020, judgment pending a ruling on his
postjudgment motion. On July 31, 2020, Carol filed responses to those
motions. The circuit court never ruled on Shamblin's postjudgment
motion; accordingly, it was denied by operation of law pursuant to
Rule 59.1, Ala. R. Civ. P., on October 16, 2020.5 Shamblin filed his appeal
on October 23, 2020.
II. Standard of Review
The parties disagree as to the proper standard of review for this
appeal. Shamblin contends for a de novo standard because, he asserts,
5The circuit court also never ruled on Shamblin's motion to stay
enforcement of the June 26, 2020, judgment.
16
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the issue to be determined is a question of law -- who has a right to
redeem the property under § 40-10-83: Shamblin or Carol? See, e.g.,
Ex parte Jarrett, 89 So. 3d 730, 732 (Ala. 2011) (observing that, " '[w]here
the facts are not in dispute and we are presented with pure questions of
law, this Court's standard of review is de novo' " (quoting State v.
American Tobacco Co., 772 So. 2d 417, 419 (Ala. 2000))). In contrast,
Carol and Guardian contend that the ore tenus standard applies because
"[t]he case was submitted with ore tenus evidence and testimony." Carol
and Guardian's brief, p. 11. See, e.g., Yeager v. Lucy, 998 So. 2d 460, 462
(Ala. 2008) (" ' "When a judge in a nonjury case hears oral testimony, a
judgment based on findings of fact based on that testimony will be
presumed correct and will not be disturbed on appeal except for a plain
and palpable error." ' " (quoting Smith v. Muchia, 854 So. 2d 85, 92
(Ala.2003), quoting in turn Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379
(Ala. 1996))).
The Court is frankly mystified by Carol and Guardian's asserted
position. In its June 26, 2020, judgment, the circuit court began by
stating: "This cause was submitted upon the pleadings, the written and
17
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oral motions made in open court, and oral arguments of the parties. Upon
consideration thereof, it is ORDERED, ADJUDGED and DECREED by
the Court as follows:" (Capitalization in original; emphasis added.) The
remainder of that judgment indicated that all the facts relied upon by the
circuit court in reaching its decision were based on two sources:
(1) "judicial notice" from previous legal proceedings and (2) statements
made by counsel for the parties at hearings in this case. A motion by
Guardian seeking to appear by telephone at the March 3, 2020, hearing
that preceded the entry of the June 26, 2020, judgment observed that "any
arguments to be made on the motions pending before the Court on
March 3, 2020, would be made by [Carol's] counsel." (Emphasis added.)
Nothing in the record even hints that testimony of any kind was received
during the March 3, 2020, hearing. The only affidavit of any kind
submitted in this case was from Shamblin's counsel in support of the
contempt motion seeking sanctions based on the alleged failure of
Guardian and Carol to comply with the circuit court's discovery orders.
No other "testimony" of any kind is included in the record. Carol and
Guardian's brief on appeal is bereft of any quotation of, citation to, or
18
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allusion to testimony presented in the circuit court. Their sole support for
their contention is introductory language in the December 30, 2019, order
that stated: "All parties having had the opportunity to present testimony
and evidence, and the Court having considered the same, it is hereby
ORDERED, ADJUDGED and DECREED as follows:" (Capitalization in
original; emphasis added.) However, on its face that statement merely
indicates that the parties could have presented testimony, not that any
party did, in fact, do so. Indeed, nothing in the remainder of the
December 30, 2019, order cited testimony as a basis for the circuit court's
rulings in that order. Moreover, the December 30, 2019, order was in
Shamblin's favor, and, according to Carol and Guardian, it was not the
final judgment by the circuit court in this case, so its passing reference to
"testimony" is irrelevant to the standard for reviewing the June 26, 2020,
judgment. In sum, there is no indication in the record that the circuit
court heard ore tenus evidence in this case. The June 26, 2020, judgment
appears to have been based on exactly what the circuit court stated it was:
the pleadings, motions, and arguments of the parties. Accordingly, the
appropriate standard of review is the de novo standard.
19
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III. Analysis
We begin by addressing Shamblin's argument that the circuit court's
December 30, 2019, order was a final, appealable order, that Carol's
February 11, 2020, motion was an untimely postjudgment motion under
Rule 59(e), Ala. R. Civ. P., because it was filed 43 days after the entry of
the December 30, 2019, order, and that therefore the circuit court erred
in altering and/or vacating its December 30, 2019, order with its June 26,
2020, judgment. Shamblin notes that Rule 54(a), Ala. R. Civ. P., states
that a " '[j]udgment' as used in these rules includes a decree and any order
from which an appeal lies." Shamblin then asserts that "[t]he order of the
trial court dated December 30, 2019, is a 'decree and any order from which
an appeal lies.' " Shamblin's brief, p. 41.
However, Shamblin does not explain why the December 30, 2019,
order was an appealable order.
"An appeal ordinarily lies only from a final judgment.
Ala. Code 1975, § 12-22-2; Bean v. Craig, 557 So. 2d 1249, 1253
(Ala. 1990). A judgment is generally not final unless all
claims, or the rights or liabilities of all parties, have been
decided. Ex parte Harris, 506 So. 2d 1003, 1004 (Ala. Civ.
App. 1987). The only exception to this rule of finality is when
20
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the trial court directs the entry of a final judgment pursuant
to Rule 54(b), Ala. R. Civ. P. Bean, 557 So. 2d at 1253."
Faulk v. Rhodes, 43 So. 3d 624, 625 (Ala. Civ. App. 2010).
The December 30, 2019, order clearly was not a final judgment
because, although the circuit court determined that Shamblin had a right
to redeem the property, the amount required to redeem the property had
not been determined. The December 30, 2019, order expressly directed
Guardian to submit a statement of lawful charges and directed Shamblin
to then submit a statement of undisputed charges and to pay the
undisputed amount into the circuit court. Thus, the December 30, 2019,
order did not dispose of all the rights and liabilities of the parties.6 It is
also clear that the circuit court did not direct the entry of a final judgment
pursuant to Rule 54(b) in the December 30, 2019, order. Accordingly, the
December 30, 2019, order was not appealable. Because that order was
6Our courts have ruled in redemption cases involving § 40-10-83 that
an order that determines the right of redemption and the amount required
for redemption may be final before the redemptioner has paid the
redemption amount. See, e.g., Moorer v. Chastang, 247 Ala. 676, 680, 26
So. 2d 75, 78-79 (1946); Prescott v. Milne, 308 So. 3d 906, 911 (Ala. Civ.
App. 2019). That is not the situation here, and no contention has been
made that this case is similar to those cases.
21
1200048
interlocutory, Carol's February 11, 2020, motion seeking a modification of
that order was not untimely, and the circuit court was permitted to alter
the December 30, 2019, order by entering the June 26, 2020, judgment.
See, e.g., Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So. 2d 759, 765 (Ala.
2004) (stating that an "order remain[s] subject to revision at any time
before the trial court enter[s] its final judgment").
Shamblin's primary argument in this appeal is that he was entitled
to redeem the property under § 40-10-83 and that the circuit court erred
in concluding instead that Carol had a right to redeem that she exercised
through executing a settlement agreement with Guardian. To evaluate
Shamblin's contention, we review the principles involved in tax-sale
redemptions.
"Under Alabama law, after a parcel of property has been
sold because of its owner's failure to pay ad valorem taxes
assessed against that property (see § 40-10-1 et seq., Ala. Code
1975), the owner has two methods of redeeming the property
from that sale: 'statutory redemption' (also known as
'administrative redemption'), which requires the payment of
specified sums of money to the probate judge of the county in
which the parcel is located (see § 40-10-120 et seq., Ala. Code
22
1200048
1975), and 'judicial redemption' under §§ 40-10-82[7] and
40-10-83, Ala. Code 1975, which involves the filing of an
original civil action against a tax-sale purchaser (or the filing
of a counterclaim in an ejectment action brought by that
purchaser) and the payment of specified sums into the court in
which that action or counterclaim is pending. See generally
William R. Justice, 'Redemption of Real Property Following
Tax Sales in Alabama,' 11 Cumb. L. Rev. 331 (1980-81)."
First Props., L.L.C. v. Bennett, 959 So. 2d 653, 654 (Ala. Civ. App. 2006).
"The right to statutorily redeem property sold for taxes expires three
years after the date of the sale ...." Henderson v. Seamon, 261 So. 3d
1203, 1206 (Ala. Civ. App. 2018). See also Daugherty v. Rester, 645 So.
2d 1361, 1364 (Ala. 1994) ("We follow O'Connor v. Rabren, 373 So. 2d 302
(Ala. 1979), and hold that the phrase 'three years from the date of the sale'
in § 40-10-120, [Ala. Code 1975,] means three years from the date of the
sale at the courthouse and the issuance of the certificate of purchase.").
7Section 40-10-82, Ala. Code 1975, establishes "a 'short statute of
limitations' for tax-deed cases, pursuant to which, 'to bar redemption
under § 40-10-83, the tax purchaser must prove continuous adverse
possession for three years after he is entitled to demand a tax deed.' " US
Bank Tr., N.A. v. Trimble, 296 So. 3d 867, 869 (Ala. Civ. App. 2019)
(quoting Gulf Land Co. v. Buzzelli, 501 So. 2d 1211, 1213 (Ala. 1987)).
Section 40-10-82 is not implicated in this case.
23
1200048
"We have stated many times that the purpose of § 40-10-83 is
to preserve the right of redemption without a time limit, if the
owner of the land seeking to redeem has retained possession.
This possession may be constructive or scrambling, and, where
there is no real occupancy of the land, constructive possession
follows the title of the original owner and can only be cut off by
the adverse possession of the tax purchaser."
Gulf Land Co. v. Buzzelli, 501 So. 2d 1211, 1213 (Ala. 1987).
"The rights and remedies of the parties following a valid
tax sale may be summed up as follows. After confirmation of
the sale, the purchaser, or the state if the land is bid in for the
state, is entitled to a certificate of purchase. Code 1975,
§§ 40-10-19, -20. The purchaser (other than the state) is then
immediately entitled to possession, and 'if possession is not
surrendered within six months after demand therefor,' the
purchaser (other than the state) may bring an action in
ejectment or other action for possession. Code 1975,
§ 40-10-74. After the expiration of three years from the date
of sale, a purchaser other than the state is entitled to a deed
[Code 1975, § 40-10-29], and land bid in for the state may be
sold and the purchaser given a deed. Code 1975, §§ 40-10-132,
-135.
"The original owner, or his successor in interest, may
redeem the land within three years from the date of sale to a
purchaser other than the state, or any time before title passes
out of the state if the land was sold to the state. Code 1975,
§ 40-10-120. Once that initial redemption period expires, only
those original owners or their successors who have possession
may redeem, without limit of time. Code 1975, § 40-10-83;
Tensaw Land & Timber Co. v. Rivers, [244 Ala. 657, 15 So. 2d
411 (1943)]. "
24
1200048
O'Connor v. Rabren, 373 So. 2d 302, 307 (Ala. 1979) (footnote omitted;
emphasis added).
"In 1946, in Moorer v. Chastang, 247 Ala. 676, 26 So. 2d
75 (1946), the Court laid out the following requirements
necessary to obtain redemption under what is now § 40-10-83:
First, there must be possession of the land by the complainant
within the meaning of the statute. Moorer, 247 Ala. at 679, 26
So. 2d at 78. Second, the complainant must belong to the class
permitted under the statute to redeem. Moorer, 247 Ala. at
680, 26 So. 2d at 78. Third, there must be a claim by the
opposing party under a tax sale. Id. Fourth, there must not
be a suit pending to enforce or test the opposing party's claim.
Id."
State Dep't of Revenue v. Price-Williams, 594 So. 2d 48, 52 (Ala. 1992).
Shamblin bases his right to redeem under § 40-10-83 on his
assertion that he has been the owner in possession of the property since
May 4, 1992. Carol and Guardian argue that they
"certainly contested this issue [that Shamblin was the owner
in possession] before the trial court in hearings and testimony,
but [Shamblin] did not order a transcript or include a Rule 10[,
Ala. R. App. P.,] statement.[8] [Shamblin] may therefore
8Carol and Guardian refer to Rule 10(d), Ala. R. App. P., which gives
the appellant a right to "prepare a statement of the proceedings in lieu of
the usual transcript," Adams v. Adams, 335 So. 2d 174, 177 (Ala. Civ. App.
1976), "[i]f no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable." Rule 10(d), Ala. R. App. P.
25
1200048
disagree with the limited factual findings the trial court made
following the hearings, but [he has] failed to make a showing
here that the [June 26, 2020,] order is wholly unsupported by
any credible evidence or is plainly erroneous and manifestly
unjust. Indeed, the record confirms that [Carol] is the owner
of the property by virtue of the quitclaim deed from Guardian."
Carol and Guardian's brief, p. 14.
We find Carol and Guardian's argument wholly unpersuasive. To
begin with, their argument relies upon their assertion that testimony was
presented in the circuit court, but we have already concluded in Part II of
this opinion that the record categorically refutes that assertion.
Furthermore, no filing from Carol and Guardian in the circuit court
objected to or even suggested that Shamblin's assertion in his
counterclaim that he was the owner in possession of the property was
false. Indeed, the very fact that Guardian sought to eject Shamblin from
the property belies any notion that Carol and Guardian "contested" that
Shamblin was in physical possession of the property. Submissions in the
record show (1) that Shamblin was awarded sole ownership of the
property by a divorce judgment entered on August 31, 2004, and that he
was solely responsible for the mortgage on the property from that time
26
1200048
forward; (2) that Shamblin assumed sole responsibility for repaying a
home-equity line of credit connected with the property under a modified
divorce judgment entered on February 19, 2009; and (3) that Shamblin
paid off the mortgage on the property in 2010. Those facts presumably
explain why the circuit court in its December 30, 2019, order concluded
that "[Shamblin] has been in actual physical possession of the Property at
all times relevant to this case and is still in undisturbed possession at the
filing of this Motion." That finding was never contradicted in the circuit
court's June 26, 2020, judgment. Finally, Carol and Guardian's contention
that the record shows that Carol "is the owner of the property by virtue
of the quitclaim deed from Guardian" does not conflict with Shamblin's
contention that he is the owner in possession of the property; it merely
indicates that Carol is the title holder to the property, not that she is in
physical possession of the property.
Based on the foregoing, we agree with Shamblin that he is the owner
in possession of the property and that he appears to meet the
requirements necessary to obtain redemption under § 40-10-83. What
remains for evaluation is the circuit court's conclusion in its June 26,
27
1200048
2020, judgment that Carol exercised a right of redemption by executing
a settlement agreement with Guardian and that, in doing so, she
extinguished any right of redemption or possession of the property
previously held by Shamblin. The circuit court reasoned and concluded
as follows in its June 26, 2020, judgment: (1) because "the deed of [the]
property was never altered in any way following [Shamblin and Carol's]
divorce," Carol "did have a redeemable interest in the property as defined
by Ala. Code 1975, § 40-10-120"; (2) Guardian and Carol represented to
the circuit court that they had "entered into a Settlement Agreement
whereby [Guardian] had transferred all [its] rights, interests, and title to
Defendant Carol Hamilton and [Guardian] further stated they were in
agreement to treat the agreement as a judicial redemption"; (3) "Shamblin
Hamilton has failed to redeem the property"; (4) Carol had "judicially
redeemed the property at issue in this cause"; and (5) "any interest
Defendant Shamblin Hamilton has in said premises, including his
possessory interest, was terminated by the Settlement Agreement of the
other parties and any interest he may have claimed is hereby
extinguished."
28
1200048
Multiple problems exist with the circuit court's reasoning and
conclusions. First and foremost, assuming that the circuit court was
correct that Carol initially possessed a right to redeem the property under
§ 40-10-120 because her name remained on the deed to the property after
Shamblin and Carol's divorce, that right of redemption was extinguished
three years after the tax sale that occurred on May 20, 2014. See, e.g.,
Daugherty, 645 So. 2d at 1364; Henderson, 261 So. 3d at 1206. The owner
in possession was the only party that retained a right of redemption after
Mercury was awarded the tax deed to the property on January 2, 2018,
(and passed it to Guardian three days later). See, e.g., Buzzelli, 501
So. 2d at 1213; O'Connor, 373 So. 2d at 307. As we have explained, the
owner in possession was Shamblin, not Carol, and the circuit court never
found otherwise. Therefore, Carol did not possess a right of redemption
at the time Guardian commenced this action or any time thereafter.
Second, Carol and Guardian never submitted the terms of their settlement
agreement into evidence, and there is no transcript of the hearings in
which counsel for Carol and Guardian described the terms of the
settlement agreement to the circuit court. Thus, although it is true that
29
1200048
"attorneys are officers of the court and their statements require no oath,"
Grayson v. Hanson, 843 So. 2d 146, 150 (Ala. 2002), there is no evidence
of the amount Carol gave to Guardian to "acquire[] all [Guardian's] rights
in the property" as the circuit court put it. For that matter, there is no
record evidence demonstrating that Carol actually possesses the tax deed
from Guardian. Third, even assuming that Carol paid Guardian to
acquire its rights in the property and that Carol does possess the tax deed
to the property, a settlement agreement between Carol and Guardian
could not extinguish the right of redemption held by Shamblin under
§ 40-10-83 because his right is based on his status as the owner in
possession, a status that could not be affected by the settlement
agreement between the other parties in this action. Fourth, because Carol
did not possess a right of redemption at the time she executed the
settlement agreement with Guardian, and because Shamblin possessed a
right of redemption under § 40-10-83, at most the settlement agreement
simply empowered Carol to step into Guardian's shoes as the plaintiff in
this action seeking ejectment and to quiet title -- which is the relief that
Carol and Guardian requested in their September 12, 2019, joint
30
1200048
stipulation of dismissal9 and what Guardian argued for in its January 9,
2020, motion for an extension to comply with the December 30, 2019,
order to submit a statement of lawful charges. Finally, the circuit court's
finding that Shamblin had failed to redeem the property ignored the fact
that Guardian never submitted a statement of lawful charges following
the entry of the circuit court's December 30, 2019, order, so Shamblin did
not know the amount required for exercising his right to redeem the
property.
Based on the foregoing, we conclude that the circuit court erred in
determining that Carol redeemed the property through her settlement
agreement with Guardian and extinguished Shamblin's right to redeem
the property. For all that appears in the record, Shamblin possesses a
right to redeem the property under § 40-10-83 by virtue of his being an
9Indeed, Carol and Guardian emphasized that "[t]his stipulation is
not intended to end the action, but is intended to dismiss Guardian as a
party to the action." Despite this, the circuit court in its June 26, 2020,
judgment treated the settlement agreement as an act that disposed of all
issues in this case.
31
1200048
owner in possession of the property. Therefore, the circuit court's
judgment is due to be reversed.
IV. Conclusion
We reverse the circuit court's June 26, 2020, judgment, and the case
is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and Stewart,
JJ., concur.
Mitchell, J., concurs specially.
32
1200048
MITCHELL, Justice (concurring specially).
I concur with the majority opinion. As it correctly notes, the
undisputed evidence indicates that Shamblin Lane Hamilton is the owner
in possession of the property at issue. Accordingly, he has the right to
redeem that property under § 40-10-83, Ala. Code 1975.
As support for the principle that § 40-10-83 permits an owner in
possession of property to redeem that property at any time, the majority
opinion cites State Department of Revenue v. Price-Williams, 594 So. 2d
48, 52 (Ala. 1992), and O'Connor v. Rabren, 373 So. 2d 302, 307 (Ala.
1979). Portions of these cases suggest that an owner can redeem under
§ 40-10-83 only if he or she is in possession of the disputed property. But
cases decided after Price-Williams and O'Connor make clear that
possession is not a prerequisite for seeking judicial redemption under
§ 40-10-83. See, e.g., McGuire v. Rogers, 794 So. 2d 1131, 1136 (Ala. Civ.
App. 2000) (explaining that the "application of § 40-10-83 employed in
O'Connor has been displaced by the more recent Gulf Land [Co. v.
Buzzelli, 501 So. 2d 1211 (Ala. 1987),] and its progeny" and rejecting a
claim that a property owner could not redeem under § 40-10-83 because
33
1200048
she was not in possession of the property). See also Southside Cmty. Dev.
Corp. v. White, 10 So. 3d 990, 992 (Ala. 2008) (recognizing that, under
Gulf Land, a lack of possession does not categorically bar an owner's
action seeking judicial redemption under § 40-10-83).
I previously discussed my view of § 40-10-83 in Austill v. Prescott,
293 So. 3d 333, 362 (Ala. 2019) (Mitchell, J., concurring in the result), in
which I explained that an owner of property whose possession had been
cut off by a tax purchaser's adverse possession nevertheless had a right to
judicially redeem the property:
"[I]n my view, a tax purchaser may cut off the possession of a
property owner by adversely possessing the property for three
years. But cutting off possession does not, by itself, extinguish
the owner's judicial-redemption right. Instead, once the
owner's possession is cut off, the owner has three years from
the date the tax purchaser became entitled to demand a tax
deed to judicially redeem the property. If the right of judicial
redemption is not exercised within those three years, then the
right is extinguished. Of course, if the owner remains in
possession of the property (i.e., the tax purchaser never cuts off
the owner's possession), then the owner may redeem at any
time."
34
1200048
(Emphasis added.) Thus, an owner may be able to judicially redeem
property under § 40-10-83 even if he or she does not retain possession of
the property.
Of course, the appeal now before us does not involve a claim of
adverse possession; Shamblin's possession of the property has not
seriously been disputed. Because I understand the majority opinion to be
citing Price-Williams and O'Connor for the proposition that an owner in
possession of property always has a right to redeem that property under
§ 40-10-83 -- and not for the proposition that only an owner in possession
of property has a right to redeem under § 40-10-83 -- I join that opinion.
35 | May 28, 2021 |
e2087dcd-afbf-4c48-8958-34c0e540b044 | Cortney Brooks v. Chad Svenby | N/A | 1190405 | Alabama | Alabama Supreme Court | REL: May 28, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190405
____________________
Cortney Brooks
v.
Chad Svenby
____________________
1191037
____________________
Cortney Brooks
v.
Chad Svenby
Appeals from Autauga Circuit Court
(CV-19-900338)
MITCHELL, Justice.
These consolidated appeals involve a dispute between Cortney
Brooks and her brother Chad Svenby about the administration of the
estate of their deceased mother Dorothy Clare. In appeal no. 1190405,
Brooks challenges an order of the Autauga Circuit Court removing the
original administrator of the estate. After the circuit court appointed
Svenby to be the executor of the estate and granted his motion to enter a
final settlement, Brooks filed appeal no. 1191037 contesting that
settlement. We now reverse the circuit court's orders in both appeals and
remand the case for further proceedings consistent with this opinion.
Facts and Procedural History
Clare died in September 2019. She had previously executed a will
leaving her property in equal shares to her only two children, Brooks and
Svenby; that will also named Svenby as the executor of her estate.
Following Clare's death, Svenby petitioned the Autauga Probate Court to
probate her will and to appoint him executor of her estate.
2
1190405, 1191037
Brooks opposed Svenby's petition and asked the probate court to
disqualify him from serving as executor. Brooks said that Clare had been
removed from Svenby's care about a year before her death following
allegations of elder abuse and a Department of Human Resources
investigation.1 Brooks further alleged that Svenby had misappropriated
over $400,000 of Clare's funds before her death -- the majority of which he
allegedly spent at a casino -- and that he was currently under criminal
investigation for his actions. For these reasons, Brooks argued that her
brother should be disqualified from serving as executor under § 43-2-22(a),
Ala. Code 1975, which provides that "[n]o person must be deemed a fit
person to serve as executor ... who, from intemperance, improvidence or
want of understanding, is incompetent to discharge the duties of the
trust." Brooks further noted that Clare's estate included ownership of an
operating beauty salon, and she asked the probate court to appoint a
special administrator ad colligendum under § 43-2-47, Ala. Code 1975, to
1The circuit court appointed a guardian and conservator for Clare
under the Adult Protective Services Act, § 38-9-1 et seq., Ala. Code 1975,
following the elder-abuse claim. The guardianship and conservatorship
were ongoing at the time of Clare's death.
3
1190405, 1191037
temporarily manage the estate's assets until a permanent administrator
could be appointed.
On November 21, 2019, the probate court entered an order holding
that Svenby was disqualified from serving as executor under § 43-2-22(a)
"on the grounds of improvidence." But, rather than appointing a special
administrator to manage Clare's estate, the probate court issued letters
of administration with the will annexed to attorney Louis Colley.2
2See § 43-2-22(b), Ala. Code 1975 (explaining that if the named
executor is unfit to serve under subsection (a), "letters of administration,
with the will annexed, may be granted on the testator's estate, under the
provisions of § 43-2-27[, Ala. Code 1975]"); § 43-2-27, Ala. Code 1975
(providing that when the executor named in a will is unfit and neither the
residuary or principal legatees timely apply for letters of administration,
"such letters may be granted to the same persons and in the same order
as letters of administration are granted in cases of intestacy"); § 43-2-42,
Ala. Code 1975 (setting forth the order of priority for persons to serve as
administrators of an intestate's estate and authorizing the appointment
of "[a]ny other person as the judge of probate may appoint" when those
persons with higher priority are unwilling to serve or would be
unsatisfactory appointments).
In Ex parte Baker, 183 So. 3d 139, 141 n.2 (Ala. 2015), this Court
explained that when letters of administration are issued under § 43-2-27,
the words of limitation " 'with the will annexed' or its Latin counterpart
'cum testamento annexo' give notice to persons dealing with the personal
representative that the administration of the estate is guided by the
provisions of a will rather than by the many statutory provisions that
4
1190405, 1191037
On December 13, 2019, Svenby filed a "verified petition for removal"
in the circuit court. In this petition, Svenby argued that he was qualified
to serve as executor of Clare's estate and that the probate court's
appointment of Colley was void. He further stated:
"It is believed that because of the complex and equitable
issues that will arise in the prosecution of [Clare's] estate, ...
such issue[s] should be heard by this court in its appellate
capacity ... de novo. The order disallowing the movant from
serving as executor for the estate of Dorothy Clare hereby
being challenged, disputed, and/or appealed.
"It is therefore requested pursuant to § 12-22-21, Ala.
Code 1975, [that] this court enter an order removing [Clare's]
estate to the circuit court."
In fact, Svenby's petition conflated two separate issues: (1) the circuit
court's authority under § 12-22-21, Ala. Code 1975, to review the probate
court's finding that he was disqualified from serving as executor and (2)
the circuit court's authority under § 12-11-41, Ala. Code 1975, to remove
the administration of Clare's estate from the probate court. Without
addressing this jumbling of the issues, the circuit court granted Svenby's
petition and ordered the probate court to transfer the case, which it did.
govern an intestate estate."
5
1190405, 1191037
Seizing on Svenby's request that the circuit court consider this case
in "its appellate capacity," and the language in his petition invoking § 12-
22-21, Brooks asked the circuit court to dismiss Svenby's "appeal" as
untimely. Specifically, Brooks noted that, under § 12-22-21(2), an appeal
to a circuit court of a probate court's order deeming a party unfit to serve
as the executor of a will "by reason of improvidence" must be taken
"within seven days from the denial of the application." Thus, Brooks
argued, Svenby's attempted December 13 appeal of the probate court's
November 21 order denying his application to serve as executor was
untimely because it was filed 22 days after that order was issued. On
February 11, 2020, the circuit court entered an order effectively denying
Brooks's motion, explaining that "this case is a removed case."3 The
circuit court also removed Colley as administrator with the will annexed
and appointed Svenby as executor to replace him. On February 17, 2020,
3Although the circuit court did not cite § 12-11-41, Ala. Code 1975,
in its order, that statute provides that "[t]he administration of any estate
may be removed from the probate court to the circuit court at any time
before a final settlement thereof ...."
6
1190405, 1191037
Brooks filed an appeal with this Court, docketed as appeal no. 1190405,
challenging the circuit court's removal of Colley.4
Svenby continued to administer Clare's estate while appeal no.
1190405 was pending in this Court. On June 3, 2020, Svenby moved the
circuit court to enter a final settlement of Clare's estate. Less than 24
hours later, the circuit court granted his motion and issued an order of
final settlement. On June 11, 2020, Brooks moved the circuit court to
vacate that order, arguing that final settlement was improper because
Svenby had not filed a verified statement of account as required by § 43-2-
502, Ala. Code 1975, and because the notice and hearing requirements of
§ 43-2-505, Ala. Code 1975, had been ignored.
In contrast to the speed with which it had granted Svenby's motion
for final settlement, the circuit court did not hold a hearing on Brooks's
4Section 12-22-21(3), Ala. Code 1975, authorizes the appeal of "any
decree, judgment or order removing an executor or administrator." See
also Ray v. Huett, 225 So. 3d 30, 36 n.3 (Ala. 2016) (explaining that, while
§ 12-22-21 expressly authorizes appeals from a judgment entered by a
probate court deciding certain issues, this Court has traditionally allowed
appeals from a judgment entered by a circuit court if it decides one of
those same issues).
7
1190405, 1191037
motion for over two months. That hearing was eventually held on August
13, 2020, but, even then, the circuit court failed to enter a ruling, and
Brooks's motion was ultimately denied by operation of law under Rule
59.1, Ala. R. Civ. P. Brooks then appealed the order of final settlement,
and that appeal, docketed as appeal no. 1191037, was consolidated with
appeal no. 1190405 for our consideration.
Standard of Review
The facts underlying these appeals are undisputed. We are asked
to consider only whether the circuit court complied with statutory
requirements governing the removal and appointment of administrators
and the settlement of an estate. We review a circuit court's conclusions
of law and application of law to undisputed facts de novo. Mitchell v.
Brooks, 281 So. 3d 1236, 1243 (Ala. 2019).
Appeal no. 1190405
Brooks argues that the circuit court never obtained subject-matter
jurisdiction over Clare's estate because, she says, Svenby's petition
challenging the probate court's denial of his application to serve as
executor was in substance nothing more than an untimely appeal. See
8
1190405, 1191037
Flannigan v. Jordan, 871 So. 2d 767, 770 (Ala. 2003) (holding that a
petition seeking review of a probate court's decision that was filed after
the seven-day limitations period in § 12-22-21 was untimely and that the
circuit court therefore "lack[ed] subject-matter jurisdiction to review the
case"). To the extent Svenby's petition sought to appeal the denial of his
application to serve as executor, Brooks is correct. Section 12-22-21(2)
clearly states that a party whose application to serve as executor is denied
"by reason of improvidence" must file an appeal to the circuit court within
seven days. Svenby's petition was filed 22 days after the entry of the
probate court's order and was therefore untimely.
Nevertheless, Svenby's petition, while hardly a model of clarity, also
contained a request that the circuit court remove the administration of
Clare's estate from the probate court. Indeed, the petition was styled as
a "verified petition for removal," and, while it contained no express
reference to § 12-11-41, Ala. Code 1975, it stated that, "because of the
complex and equitable issues that will arise in the prosecution of [Clare's]
estate, ... such issue[s] should be heard by [the circuit] court." This
language appears to reference § 12-11-41, which authorizes a circuit court
9
1190405, 1191037
to order the removal of an estate from the probate court at any time before
final settlement when an heir petitions it to do so because, "in the opinion
of the petitioner, such estate can be better administered in the circuit
court than in the probate court."
Thus, the circuit court was effectively presented with a petition that
(1) sought an untimely appeal of the probate court's order denying
Svenby's application to serve as executor of Clare's estate and (2) asked
the circuit court to remove Clare's estate from the probate court. For the
reasons already discussed, the circuit court had no jurisdiction to consider
the untimely appeal. But under § 12-11-41, the circuit court could order
the removal of Clare's estate "at any time before a final settlement." The
circuit court's order removing the estate was therefore authorized by law,
and the circuit court could properly exercise subject-matter jurisdiction
over the administration of the estate once it was removed.
Brooks alternatively argues that, even if the circuit court had
subject-matter jurisdiction over the administration of Clare's estate, its
order removing Colley as administrator had no legal basis. We agree.
Section 43-2-290, Ala. Code 1975, provides that, once an administrator has
10
1190405, 1191037
been appointed, he or she may be removed only for one of the following
reasons:
"(1) Imbecility of mind; intemperance; continued
sickness, rendering him incapable of the discharge of his
duties; or when from his conduct or character there is reason
to believe that he is not a suitable person to have the charge
and control of the estate.
"(2) Failure to make and return inventories or accounts
of sale; failure to make settlements as required by law; or the
failure to do any act as such executor or administrator, when
lawfully required by the judge of probate.
"(3)
The
wasting,
embezzlement
or
any
other
maladministration of the estate.
"(4) The using of any of the funds of the estate for his
own benefit.
"(5) A sentence of imprisonment in the penitentiary,
county jail or for hard labor for the county for a term of 12
months or more."
See also Ex parte Holladay, 466 So. 2d 956, 959-60 (Ala. 1985) ("Alabama
law provides for the removal of an administrator only upon proof of one or
more of those grounds for removal stated in § 43-2-290."). Colley's
appointment was not challenged on any of these grounds. Rather, Svenby
11
1190405, 1191037
simply argued to the circuit court that he should replace Colley as
personal representative because Clare's will nominated him as executor.
On appeal, Svenby does not argue that Colley's removal was justified
under § 43-2-290. He instead argues, essentially, that only probate courts
are bound by § 43-2-290. He states that a circuit court can properly
exercise jurisdiction over any aspect of an estate once the estate has been
properly removed, see generally Allen v. Estate of Juddine, 60 So. 3d 852,
854-55 (Ala. 2010) (stating that, "once a circuit court has properly taken
jurisdiction of the administration of an estate under § 12-11-41, its
jurisdiction over the estate is exclusive"), and argues that the circuit court
therefore acted within its general jurisdictional powers when it removed
Colley as administrator with the will annexed.
Svenby is mistaken. A circuit court properly exercising jurisdiction
over the administration of an estate is empowered "to do all things
necessary for the settlement of such estate, including the appointment and
removal of administrators." Ala. Const. 1901 (Off. Recomp.), art. VI, §
144. But Svenby cites no authority stating that a circuit court's power to
remove an administrator exceeds the power a probate court has to take
12
1190405, 1191037
that same action. And caselaw seems to refute his position that § 43-2-
290 does not apply in a circuit-court proceeding. See Thompson v. Case,
843 So. 2d 197, 200 (Ala. Civ. App. 2002) (recognizing that the appellants
were entitled to make their argument that the administrator should be
removed for waste under § 43-2-290 to the circuit court, which had
previously removed the case).
Svenby did not allege, much less establish, that Colley should be
removed as administrator of Clare's estate for a reason set forth in § 43-2-
290. Therefore, the circuit court erred by removing Colley from that
position. Because Svenby did not appeal the probate court's order denying
his application to serve as executor and appointing Colley as
administrator with the will annexed within the seven-day period provided
by § 12-22-21(2), the circuit court could, after the expiration of that seven-
day period, remove Colley as administrator only as allowed by § 43-2-290.
Appeal no. 1191037
We thus turn to appeal no. 1191037, in which Brooks challenges the
order of final settlement closing Clare's estate. Brooks argues that the
final settlement was improper because (1) Svenby's request for that
13
1190405, 1191037
settlement did not contain a verified statement of account and other
information required by § 43-2-502 and (2) the notice and hearing
requirements of § 43-2-505 were ignored by the circuit court. As in
appeal no. 1190405, Svenby's argument in response amounts to a bare
assertion that a circuit court exercising jurisdiction over the
administration of an estate can exercise that jurisdiction without regard
to statutes that he appears to believe constrain only probate courts.
Svenby is wrong, and his position is unsupported by any authority. See,
e.g., Hall v. Hall, 903 So. 2d 78, 81 (Ala. 2004) (reviewing a judgment
approving a final settlement entered by a circuit court and noting that the
administrator was required to file a statement containing the information
set forth in § 43-2-502).
In contrast, Brooks argues that the circuit court erred by entering
an order of final settlement without complying with the statutory
requirements. Her view is well supported. First, as discussed above, the
appointment of Svenby as executor was void because Colley was
improperly removed as administrator. Svenby therefore had no capacity
to initiate settlement proceedings. See § 43-2-502 (explaining the steps
14
1190405, 1191037
an "executor or administrator" must take when "making settlements of an
administration" (emphasis added)).
Second, even if Svenby's appointment as executor had been proper,
he failed to take the steps required by § 43-2-502. In McCormick v.
Langford, 516 So. 2d 643, 646 (Ala. 1987), a party contesting a final
settlement stated that the probate court had erred in entering an order
approving that settlement because the statement of account filed by the
administrator was not supported by documentary evidence. The
contesting party specifically argued that he was entitled to see and
examine the documents supporting the statement of account so that he
could confirm the accuracy of the final settlement. Id. This Court agreed
and ruled in his favor, explaining that the administrator "was required
under [§ 43-2-502] to file with the probate court those documents
supporting his statement of account ... or to provide a sufficient
explanation for his failure to do so" and that the failure to comply with §
43-2-502 required the reversal of the order approving the final settlement.
Id. If the failure of the administrator in McCormick to support his
statement of account with documentary evidence was a sufficient basis to
15
1190405, 1191037
reverse the final-settlement order entered in that case, Svenby's failure
to submit a statement of account at all certainly merits the same result --
even if he had been properly appointed the personal representative of
Clare's estate.
The circuit court's entry of an order of final settlement less than 24
hours after Svenby (who, again, had no legal status to do so) requested it
-- without complying with the notice requirements of § 43-2-505 and
leaving Brooks without opportunity to be heard -- is likewise problematic
and an additional reason to reverse the circuit court's order. See Lett v.
Weaver, 79 So. 3d 625, 628-29 (Ala. Civ. App. 2010) (explaining that "the
notification requirements for a final-settlement hearing are expressly
stated in § 43-2-505" and that, "[b]ecause the probate court failed to
properly notify the contestants of the [final-settlement] hearing, that
court's judgment of final settlement is void").
Conclusion
Brooks has established that the circuit court erred (1) by removing
Colley as the administrator of Clare's estate and (2) by entering an order
16
1190405, 1191037
approving a final settlement of Clare's estate.5 Accordingly, the circuit
court is directed on remand to vacate those orders and to reinstall Colley
as the duly appointed administrator with the will annexed of Clare's
estate, which remains open. Care should be taken so that future
proceedings contemplating a final settlement of the estate are conducted
in accordance with the terms of the applicable statutes discussed above,
which apply to the administration of all deceaseds' estates, whether in the
probate court or in the circuit court.
1190405 -- REVERSED AND REMANDED.
1191037 -- REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Sellers, J., concurs in the result.
5Svenby argues that any error committed by the circuit court was
harmless and, under Rule 45, Ala. R. App. P., does not require the
reversal of the circuit court's orders because, in any event, Clare's will
unambiguously provides that Brooks and Svenby are to receive equal
shares of her estate. He fails to recognize, however, that the probate court
has already found from its review of the evidence that Svenby's "probable
lack of care and foresight in the management of the estate ... would
endanger its safety" if he were to be appointed executor.
17 | May 28, 2021 |
acd653f7-0bdc-4b1f-b893-e94269f0a707 | Ex parte Cherith Brooke Shoemaker. | N/A | 1200591 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200591
Ex parte Cherith Brooke Shoemaker. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Cherith
Brooke Shoemaker v. State of Alabama) (Lee Circuit Court: CC-18-50;
Criminal Appeals :
CR-19-0912).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
8deeb444-ec22-422e-8572-aeae8c90d2e2 | Ex parte Robert Kenta Wade. | N/A | 1200507 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 18, 2021
1200507
Ex parte Robert Kenta Wade. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. Robert
Kenta Wade) (Houston Circuit Court: CC-19-1817; Criminal Appeals :
CR-20-0311).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 18, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 8 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 18, 2021 |
caeb69a0-4323-4c4c-93ec-4ca9a18654f3 | Ex parte Stephen Marc Stone. | N/A | 1200381 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
July 9, 2021
1200381
Ex parte Stephen Marc Stone. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Stephen Marc Stone v. State
of Alabama) (Madison Circuit Court: CC-13-5242; Criminal Appeals :
CR-18-0785).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on July
9, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, W
ise, and
Sellers, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 9th day of July, 2021.
Clerk, Supreme Court of Alabama | July 9, 2021 |
49f32b47-538a-4eed-843b-610b5590edf4 | Ex parte James Osgood. | N/A | 1200021 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200021
Ex parte James Osgood. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: James Osgood v. State of
Alabama) (Chilton Circuit Court: CC-12-27; Criminal Appeals :
CR-13-1416).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Sellers, Mendheim, and Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
9797836f-abda-42be-8e99-ee4fade97737 | Ex parte J.D.W. | N/A | 1200354 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200354
Ex parte J.D.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.D.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-600.04; Civil Appeals
:
2190790).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bolin, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
b5ca7b69-f4a6-4266-985f-af0224b5900b | Ex parte Jimmy Lee Brooks, Jr. | N/A | 1200044 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200044
Ex parte Jimmy Lee Brooks, Jr. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jimmy Lee Brooks, Jr. v.
State of Alabama) (Talladega Circuit Court: CC-03-693.60; CC-03-694.60;
CC-03-695.60; CC-03-696.60; Criminal Appeals :
CR-16-1219).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Bolin, Wise,
Bryan, Sellers, Mendheim, and Stewart, JJ., concur. Shaw, J., recuses
himself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
261e4c22-69d4-4edb-b49e-e4cd007a9f35 | Brad Reardon and Brian Bowman v. G. Bartley Loftin III et al. | N/A | 1200195 | Alabama | Alabama Supreme Court | Rel: July 9, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
SPECIAL TERM, 2021
1200195
Brad Reardon and Brian Bowman v. G. Bartley Loftin III et al. (Appeal
from Madison Circuit Court: CV-20-900806).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. | July 9, 2021 |
73fbac61-67f1-470d-9ef8-b0a1fb13a07e | Skelton v. Skelton | N/A | 1190917, 1190700 | Alabama | Alabama Supreme Court | Rel: June 18, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190700
____________________
Frederick Tildon Skelton IV and Brian Rutledge Skelton
v.
Evangela R. Taylor Skelton, as the personal representative of
the Estate of Brian L. Skelton, Sr., et al.
Appeal from Jefferson Probate Court, Bessemer Division
(No. 16-48074)
____________________
1190917
____________________
Frederick Tildon Skelton IV and Brian Rutledge Skelton
v.
Evangela R. Taylor Skelton, as the personal representative of
the Estate of Brian L. Skelton, Sr., et al.
Appeal from Jefferson Circuit Court, Bessemer Division
(CV-16-900625)
SELLERS, Justice.
These consolidated appeals involve the Frederick Tildon Skelton,
Jr., Family Trust ("the trust") and its primary asset, shares of stock in
South Haven Corporation ("South Haven"). In appeal no. 1190700,
Frederick Tildon Skelton IV and Brian Rutledge Skelton challenge the
May 4, 2020, judgment of the Jefferson Probate Court, Bessemer Division
("the probate court"), terminating the trust. We affirm that judgment. In
appeal no. 1190917, those same parties challenge the July 17, 2020,
judgment of the Jefferson Circuit Court, Bessemer Division ("the circuit
court"), dismissing their claims relating to the administration of the trust
and their derivative claims asserted on behalf of South Haven. We
reverse the judgment of the circuit court and remand the case for further
proceedings consistent with this opinion.
2
1190700, 1190917
I. Facts
Frederick Tildon Skelton, Jr. ("Frederick Jr."), died in June 1979.
He was survived by his wife, Rheta S. Skelton ("Mrs. Skelton"), and their
four children: Brian Lee Skelton, Sr. ("Brian Lee"), Frederick Tildon
Skelton III ("Frederick III"), Loretta J. Skelton ("Loree"), and Cindy
Marie Skelton Council ("Cindy"). During his lifetime, Frederick Jr. owned
all the stock of South Haven, which operated the South Haven Nursing
Home. Upon his death, the trust was to receive approximately 49% of the
South Haven stock. The trust instrument named Mrs. Skelton as the
original trustee of the trust and provided that she was to receive the net
income of the trust during her lifetime. Upon her death, the trust was to
terminate and its assets distributed to the Skeltons' children or to their
children's issue, per stirpes.
Mrs. Skelton died in 2015; she was predeceased by Frederick III and
Cindy. Frederick III had two children, Brian Rutledge Skelton and
Frederick T. Skelton IV (referred to collectively as "the nephews"); Cindy
had one child, Joshua M. Council ("Joshua"); Brian Lee had three
3
1190700, 1190917
children, Olivia Skelton, Taylor Skelton, and Brian Skelton, Jr.; and it is
unknown whether Loree had any children.
After Mrs. Skelton died, Brian Lee, who was serving as South
Haven's president at the time, became the successor trustee of the trust.
However, Brian Lee died in July 2016, before fully discharging his duties
as trustee by dividing the trust property and making a final distribution
of the trust corpus to the remainder beneficiaries of the trust. Brian Lee's
widow, Evangela R. Taylor Skelton ("Angel"), was appointed as the
personal representative of Brian Lee's estate. After Brian Lee's death,
there was no acting trustee, but it is undisputed that the remainder
beneficiaries of the trust are: Brian Lee's estate, Joshua, the nephews,
and Loree (referred to collectively as "the beneficiaries").
In July 2016, Angel, as personal representative of Brian Lee's estate,
commenced an action in the probate court ("the probate-court action"),
petitioning the probate court to appoint a successor trustee for the trust
and, relevant to that action, to direct the trustee to exercise control over
the South Haven stock, or any other ownership interest in South Haven,
4
1190700, 1190917
held by the trust.1 The beneficiaries were parties to the probate-court
action. The probate court thereafter entered an order appointing Sidney
C. Summey, Jr., as successor trustee ("the trustee") and authorizing him
to exercise control of all trust assets, including any stock in South Haven,
to achieve a final settlement and/or to wind up the affairs of the trust by
consent of the beneficiaries or by judicial means. The probate court
retained jurisdiction over the trust through final settlement.
In September 2016, Loree, individually and on behalf of South
Haven, commenced an action in the circuit court against Angel,
individually and in her capacity as the personal representative of Brian
Lee's estate ("the circuit-court action"). In that action, Loree alleged that
Brian Lee, while an officer, director, and shareholder of South Haven, and
Angel had misappropriated South Haven's assets for their personal
benefit to the detriment of the other shareholders or putative
shareholders of the corporation. Joshua and the trustee were added as
1See § 19-3B-704(b), Ala. Code 1975 (providing that "[a] vacancy in
a trusteeship must be filled if the trust has no remaining trustee").
5
1190700, 1190917
parties to the circuit-court action.2 The nephews filed a motion to
intervene in the circuit-court action to assert claims on behalf of South
Haven against Loree, as well as Angel, in her capacity as the personal
representative of Brian Lee's estate; the nephews asserted that both Brian
and Loree, while officers, directors, and shareholders of South Haven, had
misappropriated South Haven's assets for their personal benefit to the
detriment of the other shareholders or putative shareholders of the
corporation. However, the circuit court denied that motion because the
nephews had failed to assert that they were shareholders of South Haven
at the time of the alleged transactions they challenged. See Rule 23.1,
Ala. R. Civ. P. (requiring plaintiffs to allege their beneficial interests in
the corporation subject to the derivative action). The parties to the
circuit-court action thereafter participated in mediation from August 2017
until August 2018. Before that mediation ensued, the trustee informed all
parties that, to fulfill his fiduciary obligations to all the beneficiaries, he
would not agree to any settlement unless that settlement was approved
2Although the trustee was added as a party to the circuit-court
action, he did not assert any derivative claims on behalf of South Haven.
6
1190700, 1190917
by either (1) all the beneficiaries, including the nephews, or (2) both the
probate court and the circuit court. Following mediation, Loree, Joshua,
and Angel, individually and as personal representative of Brian Lee's
estate, reached a proposed settlement. The nephews opposed that
settlement, however; thus, it was never finalized.
In November 2017, the nephews, as beneficiaries of the trust, filed
a petition in the probate-court action, asserting various claims and
counterclaims and seeking affirmative relief relating to the administration
of the trust3 (referred to collectively as "the trust claims"), including
requesting that the probate court:
"A. Continue to assume exclusive jurisdiction over all matters
involving the administration of the Trust;
"B. Issue instructions to the Successor Trustee for the Trust
to undertake all actions necessary to the winding-up of the
Trust, including taking all such actions as may be appropriate
to administer the Trust pursuant to the terms of [Frederick
Jr.'s] Will and prudent fiduciary practice, including, without
3In addition to asserting claims against the other beneficiaries, the
nephews' petition also asserted claims against Loree, in her capacity as
the trustee of the Rheta S. Skelton Revocable Trust and in her capacity as
the personal representative of the Estate of Rheta S. Skelton.
7
1190700, 1190917
limitation, exercising control over the Trust's assets, including
the stock or other ownership interest in [South Haven];
"C. Enter a declaratory judgment regarding the assets of the
Trust, including a judgment that the Trust retains ownership
and voting rights for the stock of [South Haven];
"D. Enter a ... judgment [declaring]that[, during her lifetime,
Mrs. Skelton] breached her fiduciary duties as Trustee of the
Trust ...;
"E. Enter a judgment against [Mrs. Skelton's estate] for
breach of fiduciary duty as Trustee of the Trust by invading
the Trust and removing valuable principal assets of the Trust
for her own personal benefit ...;
"F. Enter a ... judgment [declaring] that the transfer of
substantially all of [Mrs. Skelton's assets] to [the Rheta J.
Skelton Revocable Trust] was a fraudulent conveyance ...;
"G. Require [Mrs. Skelton's estate] and/or [the trustee] to
provide a full and complete accounting of the Trust's assets ...;
"H. Enter a judgment in favor of [the nephews] and against
[Loree, individually; Angel, in her capacity as personal
representative of Brian Lee's estate]; and [Mrs. Skelton's
estate], jointly and severally, [for damages] ...;
"I. Enter a judgment in favor of the Trust ... such that the
Trust distributions to the remainder beneficiaries are restored
...;
"J. Enter a ... judgment [declaring] that the [trustee] has a
fiduciary duty to pursue and enforce the derivative claims
[asserted in the circuit-court action] ...."
8
1190700, 1190917
In October 2018, Angel, as the personal representative of Brian Lee's
estate; Loree, individually; and Joshua petitioned the probate court to
terminate the trust, to distribute its assets, and to discharge the trustee.
The nephews opposed the termination of the trust on the basis that they
would be prohibited from pursuing their trust claims. The nephews also
objected to the trustee's being discharged because, they believed, he had
a duty to pursue the trust claims, as well as derivative claims that could
be asserted on behalf of South Haven in the circuit-court action.
In November 2018, the trustee filed a motion in the probate-court
action seeking to resign as the trustee of the trust. In that motion, the
trustee cited various compelling reasons, including:
"To date, the Trust has not been funded and its assets are
illiquid. [The trustee's] only means of raising sufficient capital
to fund the Trust necessarily involves a sale of Trust assets,
which primarily include shares of South Haven Corporation.
However ... the ownership of the shares of South Haven
Corporation has been at issue in this case pending in [the
probate court] as well as in the [circuit-court action]. In
various pleadings, certain beneficiaries have taken the position
that there are no shares of South Haven Corporation
remaining in the Trust, while other beneficiaries, including
[the nephews], have refused to certify in pleadings that they
are, in fact, owners of the shares. Certain beneficiaries
9
1190700, 1190917
purport to have resolved the issues between and among them,
while other beneficiaries object to that resolution. As a result,
the answer to the question of what [the trustee] could do in his
role as trustee to fund the Trust and address the competing
claims and issues of the remainder beneficiaries is far from
clear .... If, as certain parties [i.e., the nephews] have
contended, [the trustee] cannot resign, then his compelled
continued service as Trustee and active participation in
current and future litigation will be at the risk of great
personal loss to [the trustee], with a significant outlay of
resources, time, and expenses potentially offset by, at best, the
possibility of future reimbursement by the currently unfunded
Trust."
(Footnotes omitted.)
On March 7, 2019, the probate court entered an order discharging
the trustee on the grounds that the trust was currently underfunded; that
the assets of the trust were illiquid; that the beneficiaries, because of
irreconcilable differences, continued to engage in protracted and costly
litigation; and that the trust was without sufficient funds to sustain that
litigation. To protect the nephews' rights, the probate court ordered that
they be substituted for, or otherwise "stand in the shoes" of, the trustee in
the event they elected to assert derivative claims on behalf of South
Haven in the circuit-court action. The probate court explained in its order
that the nephews could not assert any derivative claims on behalf of South
10
1190700, 1190917
Haven in the probate-court action because South Haven was not a party
to that action but that, because South Haven was a party to the circuit-
court action, such derivative claims could be appropriately litigated in
that action. Based on the probate court's order, the nephews subsequently
asserted, in the circuit-court action, derivative claims on behalf of South
Haven against Loree and Angel, in her capacity as the personal
representative of Brian Lee's estate. Over the nephews' objection, the
circuit court entered an order discharging the trustee as a party to circuit-
court action and substituting the nephews in his place, pursuant to Rule
25(c), Ala. R. Civ. P.
On May 4, 2020, the probate court, following a hearing on all
pending motions, entered a final judgment in the probate-court action,
terminating the trust and ordering that its limited assets be distributed.4
4In its judgment, the probate court indicated that the assets of the
trust "consist[ed] of approximately $5,000 in an account with Raymond
James, [and] real property in Long Beach, Mississippi." The probate court
ordered that the $5,000 be distributed to the trustee for his expenses and
that Loree make reasonable efforts to sell the Mississippi property and to
distribute the funds therefrom to the trustee and, if any funds remained
after paying the trustee, to the beneficiaries. The probate court further
indicated that the trust was holding or previously held approximately 49%
11
1190700, 1190917
The probate court further held that the nephews had 30 days in which to
assert their trust claims in the circuit-court action. The nephews
appealed. On that same day, the nephews asserted their trust claims in
the circuit-court action.
On July 17, 2020, following a hearing, the circuit court entered a
final judgment, dismissing the nephews' derivative claims on the basis
that those claims were abated by the probate-court action. The circuit
court also struck, without explanation, all pleadings filed by the nephews
after October 23, 2019, including the pleading asserting their trust claims.
The nephews appealed. This Court consolidated the appeals from the May
4, 2020, probate-court judgment and the July 17, 2020, circuit-court
judgment.
II. Standard of Review
of the outstanding shares of stock in South Haven but that there existed
a dispute about whether those shares had been distributed or whether
they remained assets of the trust. The probate court stated that, because
of its ruling terminating the trust, any issue concerning the South Haven
stock and whether it remained an asset of the trust was moot. The
probate court presumably reasoned that, because South Haven was a
party to the circuit-court action, any dispute regarding the stock could be
litigated in that action.
12
1190700, 1190917
These appeals present pure questions of law, which we review de
novo. Watson v. University of Alabama Health Servs. Found., 263 So. 3d
1030 (Ala. 2018).
III. Discussion
1. Appeal No. 1190700 - The Probate-Court Action
The nephews contend that the probate court erred in terminating
the trust because, they say, it deprived them of the opportunity to litigate
their trust claims in that court. The nephews specifically assert that the
probate court lacked authority to dismiss their trust claims merely
because the probate court believed it would be more convenient for those
claims to be litigated in the circuit-court action. Under the circumstances
presented here, we cannot agree. To begin, the litigation giving rise to
these appeals has been ongoing in the probate court since July 2016 and
in the circuit court since September 2016. This is the third time many of
the parties have been before this Court concerning issues arising out of
the same general factual situation.5 Next, and importantly, the probate
5Ex parte Skelton (No. 1180555, Aug. 23, 2019), 312 So. 3d 8 (Ala.
2019) (table); and Ex parte Skelton, 275 So. 3d 144 (Ala. 2018).
13
1190700, 1190917
court terminated the trust and discharged the trustee because the parties
had engaged in, and continued to engage in, costly and protracted
litigation that the trust was unable to fund. Simply put, the assets of the
trust were insufficient to compensate the trustee, who not only had been
appointed to wind up the affairs of the trust but also been added as a
party to the circuit-court action.6 A court exercising jurisdiction over the
administration of a trust has the authority to terminate the trust if the
court determines "that the value of the trust property is insufficient to
justify the cost of administration." § 19-3B-414(b), Ala. Code 1975. This
is precisely what occurred here, and the nephews make no argument that
the probate court erred in terminating the trust on that basis. Rather, the
nephews have taken the position throughout this litigation that the
trustee had a duty to pursue, even at own his personal expense, all claims
involving the administration of the trust, as well as all derivative claims
that could be asserted on behalf of South Haven. Notably, to ensure that
6The probate court determined that the trustee and his counsel were
due to be compensated for work and expenses in the amount of
$318,249.50.
14
1190700, 1190917
the nephews were able to pursue their trust claims, the probate court held
that they had 30 days in which to reassert those claims in the circuit-court
action. In its judgment terminating the trust, the probate court explained
that allowing the nephews to reassert their trust claims in the circuit-
court action was appropriate because (1) the trust claims arose out of the
same core of operative facts as the claims involved in the circuit-court
action, (2) the trust claims required the same evidence as the derivative
claims pending in the circuit-court action, (3) and the probate court and
the circuit court had concurrent jurisdiction over matters relating to the
administration of the trust.7 To further protect the nephews' rights, the
probate court ordered that they be substituted for, or otherwise "stand in
the shoes" of, the trustee so that they could assert derivative claims on
7Act No. 1144, Ala. Acts 1971, a general act of local application,
applies to the Jefferson Probate Court. Section 1 of the act grants to the
Jefferson Probate Court "general jurisdiction concurrent with that of the
Circuit Courts of this State, in equity, in the administration of the estates
of deceased persons, minors and insane or non compos mentis persons,
including testamentary trust estates." See also § 19-3B-203(b), Ala. Code
1975 (providing that "[a] probate court granted statutory equitable
jurisdiction has concurrent jurisdiction with the circuit court in any
proceeding involving a testamentary or inter vivos trust").
15
1190700, 1190917
behalf of South Haven in the circuit-court action. Finally, it is undisputed
that all the beneficiaries, including the nephews, have engaged in
extensive discovery in the circuit-court action, and they all agreed that the
discovery in that action could be used to resolve the claims asserted in
both the probate-court action and the circuit-court action. Under these
circumstances, the probate court did not err in terminating the trust,
subject to the nephews' ability to reassert their trust claims in the circuit-
court action. We, therefore, affirm the judgment of the probate court
terminating the trust and, as discussed below, agree that the circuit court
erred by refusing to adjudicate the trust claims in the circuit-court action
as recommended by the probate court.
2. Appeal No. 1190917 - The Circuit-Court Action
The nephews contend that the circuit court erred in dismissing the
derivative claims they asserted on behalf of South Haven in the circuit-
court action on the basis that those claims were abated pursuant to § 6-5-
440, Ala. Code 1975. We agree. As indicated, Loree initiated the circuit-
court action by filing derivative claims on behalf of South Haven against
Angel, individually and in her capacity as the personal representative of
16
1190700, 1190917
Brian Lee's estate. Initially, the nephews attempted to intervene in that
action to assert their own shareholder derivative claims, but the circuit
court denied their motion because the nephews had failed to allege that
they had been shareholders at the time the alleged transactions occurred.
Instead, the nephews asserted the trust claims in the probate-court
action. After the probate court entered its order discharging the trustee,
it ordered that the nephews be substituted for the trustee to protect their
rights to assert any derivative claims on behalf of South Haven in the
circuit-court action. The nephews then filed derivative claims on behalf
of South Haven in the circuit-court action, were substituted as parties to
that action, and engaged in discovery. However, the circuit court
ultimately, and inappropriately, dismissed the nephews' derivative claims
on the basis that those claims were abated by the probate-court action.
Section § 6-5-440, Alabama's abatement statute, provides:
"No plaintiff is entitled to prosecute two actions in the
courts of this state at the same time for the same cause and
against the same party. In such a case, the defendant may
require the plaintiff to elect which he will prosecute, if
commenced simultaneously, and the pendency of the former is
a good defense to the latter if commenced at different times."
17
1190700, 1190917
This Court has explained that, pursuant to that statutory directive,
" 'where two or more courts have concurrent jurisdiction, the one which
first takes cognizance of a cause has the exclusive right to entertain and
exercise such jurisdiction, to the final determination of the action and the
enforcement of its judgments or decrees.' " Regions Bank v. Reed, 60 So.
3d 868, 884 (Ala. 2010) (quoting Ex parte Burch, 236 Ala. 662, 665, 184
So. 694, 697 (1938)) (emphasis added). In holding that the nephews'
derivative claims asserted on behalf of South Haven were abated by the
probate-court action, the circuit court necessarily believed that the
probate court had concurrent jurisdiction to adjudicate those claims,
despite the fact that South Haven was not a party to the probate-court
action.
It is undisputed that the probate court had concurrent jurisdiction
with the circuit court to adjudicate any claims related to the
administration of the trust. However, the probate court, whose jurisdiction
is limited to that conferred to it by statute, did not have jurisdiction to
adjudicate claims that did not relate to the administration of the trust.
Section 19-3B-201(c), Ala. Code 1975, provides that "[a] judicial
18
1190700, 1190917
proceeding involving a trust may relate to any matter involving the trust's
administration, including a request for instructions and an action to
declare rights." Additionally, § 19-3B-201(d), Ala. Code 1975, provides:
"A judicial proceeding involving a trust may relate to any
matter involving the trust's administration, including, but not
being limited to a proceeding to:
"(1) request instructions;
"(2) determine the existence or nonexistence
of any immunity, power, privilege, duty or right;
"(3) approve a nonjudicial settlement;
"(4) interpret or construe the terms of the
trust;
"(5) determine the validity of a trust or of any
of its terms;
"(6) approve a trustee's report or accounting
or compel a trustee to report or account;
"(7) direct a trustee to refrain from
performing a particular act or grant to a trustee
any necessary or desirable power;
"(8) review the actions or approve the
proposed actions of a trustee, including the exercise
of a discretionary power;
"(9) accept the resignation of a trustee;
19
1190700, 1190917
"(10) appoint or remove a trustee;
"(11) determine a trustee's compensation;
"(12) transfer a trust's principal place of
administration or a trust's property to another
jurisdiction;
"(13) determine the liability of a trustee for
an action relating to the trust and compel redress
of a breach of trust by any available remedy;
"(14) modify or terminate a trust;
"(15) combine trusts or divide a trust;
"(16) determine liability of a trust for debts of
a beneficiary and living settlor;
"(17) determine liability of a trust for debts,
expenses
of
administration,
and
statutory
allowances chargeable against the estate of a
deceased settlor;
"(18) determine the liability of a trust for
claims, expenses and taxes in connection with the
settlement of a trust that was revocable at the
settlor's death; and
"(19) ascertain beneficiaries and determine to
whom property will pass upon final or partial
termination of a trust."
20
1190700, 1190917
Neither § 19-3B-201(c) nor § 19-3B-201(d) confers jurisdiction on a
probate court to entertain a shareholder derivative action asserted on
behalf of a corporation merely because a trust over which the probate
court exercises jurisdiction beneficially holds shares of stock in that
corporation. South Haven is a separate legal entity, recognized as distinct
from the holders of its shares. See Ex parte 4tdd.com, 306 So. 3d 8 (Ala.
2020). This legal principle entitled the nephews, in their capacities as
substitutes for the trustee, to assert derivative claims on behalf of South
Haven in the circuit-court action and to recover damages on its behalf. In
comparison, the nephews, as beneficiaries of the trust, had a right to
assert in the probate-court action their trust claims, which included
breach-of-fiduciary claims relating to the administration of the trust, and
to seek a judgment based on those alleged breaches. See First Alabama
Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 423 (Ala. 1982) ("It
has long been the law in Alabama that where a trustee does not perform
his duty to protect the trust, the beneficiaries may sue in equity to protect
their rights.") Thus, although the trust might have had an indirect
interest in the shareholder derivative claims asserted in the circuit-court
21
1190700, 1190917
action because the trust either was holding or previously held shares of
South Haven stock, the shareholder derivative claims are simply
unrelated to the administration of the trust. Stated differently, the
derivative claims asserted by the nephews belong to South Haven and
stand independently of, and have no bearing on, the nephews' claims
relating to the administration of the trust. Because only the circuit court
had subject-matter jurisdiction over the shareholder derivation claims, the
abatement statute was not triggered. See § 12-11-31(1), Ala. Code 1975
(providing that the jurisdiction of the circuit court as to equitable matters
extends "[t]o all civil actions in which a plain and adequate remedy is not
provided in the other judicial tribunals").
The nephews also contend that the circuit court erred in striking,
without explanation, their trust claims, which the probate court held
would be appropriate for them to assert in the circuit-court action. For
the same reasons we stated for affirming the probate court's judgment, we
agree. As indicated, the trust claims asserted by the nephews in the
probate-court action arise out of the same core of operative facts that
underlie the claims in the circuit-court action. All the beneficiaries,
22
1190700, 1190917
including the nephews, have engaged in discovery in the circuit-court
action, and they all agreed that the discovery in that action could be used
to resolve claims asserted in both the probate-court action and the circuit-
court action. Therefore, because the probate court was justified in
terminating the trust, the circuit court is the appropriate venue to litigate
all the remaining claims, including the nephews' trust claims.
IV. Conclusion
The judgment of the probate court terminating the trust, subject to
the nephews' ability to reassert their trust claims in the circuit-court
action, is affirmed. The judgment of the circuit court dismissing the
nephews' trust claims and derivative claims is reversed, and the cause is
remanded for that court to exercise jurisdiction over those claims.
1190700 -- AFFIRMED.
1190917 -- REVERSED AND REMANDED.
Parker, C.J., and Mendheim and Stewart, JJ., concur.
Bryan, J., concurs in the result.
Bolin and Wise, JJ., recuse themselves.
23 | June 18, 2021 |
5ba306ad-d831-4005-922f-538b9e889790 | Ex parte Henry Neal Ferguson III. | N/A | 1200559 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200559
Ex parte Henry Neal Ferguson III. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Henry Neal Ferguson III
v. State of Alabama) (Talladega Circuit Court: CC-94-74.65; Criminal
Appeals :
CR-20-0355).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, W
ise, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
1f5e0163-bcf9-48bf-825b-ff8ea089dbe6 | Ex parte J.D.W. | N/A | 1200355 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200355
Ex parte J.D.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.D.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-601.04; Civil Appeals
:
2190791).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bolin, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
7b23a1ad-2e0b-454d-b5f1-f43e75f1a65d | Ex parte J.W. | N/A | 1200361 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200361
Ex parte J.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-601.04; Civil Appeals
:
2190788).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Bolin, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
44363232-e2bb-4de5-a736-c977ca40cca4 | Ex parte Joshua Getzinger. | N/A | 1200566 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200566
Ex parte Joshua Getzinger. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Joshua Getzinger v. State of
Alabama) (Madison Circuit Court: CC-19-3774; Criminal Appeals :
CR-20-0027).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
36bd126a-e270-4c32-b27c-fe4c9e93a8d3 | Ex parte J.W. | N/A | 1200359 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200359
Ex parte J.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-599.04; Civil Appeals
:
2190786).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Bolin, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
762b5c42-4080-47f6-b184-0f5b8770a099 | Atlantic Building Specialties, Inc., a Georgia Corporation v. CDS Construction, LLC | N/A | 1190293 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190293
Atlantic Building Specialties, Inc., a Georgia Corporation v. CDS
Construction, LLC (Appeal from Jefferson Circuit Court: CV-18-905002).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | May 14, 2021 |
e5c00b78-e955-4e28-afc4-e4db46cf0782 | Brooks v. Svenby | N/A | 1191037, 1190405 | Alabama | Alabama Supreme Court | REL: May 28, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190405
____________________
Cortney Brooks
v.
Chad Svenby
____________________
1191037
____________________
Cortney Brooks
v.
Chad Svenby
Appeals from Autauga Circuit Court
(CV-19-900338)
MITCHELL, Justice.
These consolidated appeals involve a dispute between Cortney
Brooks and her brother Chad Svenby about the administration of the
estate of their deceased mother Dorothy Clare. In appeal no. 1190405,
Brooks challenges an order of the Autauga Circuit Court removing the
original administrator of the estate. After the circuit court appointed
Svenby to be the executor of the estate and granted his motion to enter a
final settlement, Brooks filed appeal no. 1191037 contesting that
settlement. We now reverse the circuit court's orders in both appeals and
remand the case for further proceedings consistent with this opinion.
Facts and Procedural History
Clare died in September 2019. She had previously executed a will
leaving her property in equal shares to her only two children, Brooks and
Svenby; that will also named Svenby as the executor of her estate.
Following Clare's death, Svenby petitioned the Autauga Probate Court to
probate her will and to appoint him executor of her estate.
2
1190405, 1191037
Brooks opposed Svenby's petition and asked the probate court to
disqualify him from serving as executor. Brooks said that Clare had been
removed from Svenby's care about a year before her death following
allegations of elder abuse and a Department of Human Resources
investigation.1 Brooks further alleged that Svenby had misappropriated
over $400,000 of Clare's funds before her death -- the majority of which he
allegedly spent at a casino -- and that he was currently under criminal
investigation for his actions. For these reasons, Brooks argued that her
brother should be disqualified from serving as executor under § 43-2-22(a),
Ala. Code 1975, which provides that "[n]o person must be deemed a fit
person to serve as executor ... who, from intemperance, improvidence or
want of understanding, is incompetent to discharge the duties of the
trust." Brooks further noted that Clare's estate included ownership of an
operating beauty salon, and she asked the probate court to appoint a
special administrator ad colligendum under § 43-2-47, Ala. Code 1975, to
1The circuit court appointed a guardian and conservator for Clare
under the Adult Protective Services Act, § 38-9-1 et seq., Ala. Code 1975,
following the elder-abuse claim. The guardianship and conservatorship
were ongoing at the time of Clare's death.
3
1190405, 1191037
temporarily manage the estate's assets until a permanent administrator
could be appointed.
On November 21, 2019, the probate court entered an order holding
that Svenby was disqualified from serving as executor under § 43-2-22(a)
"on the grounds of improvidence." But, rather than appointing a special
administrator to manage Clare's estate, the probate court issued letters
of administration with the will annexed to attorney Louis Colley.2
2See § 43-2-22(b), Ala. Code 1975 (explaining that if the named
executor is unfit to serve under subsection (a), "letters of administration,
with the will annexed, may be granted on the testator's estate, under the
provisions of § 43-2-27[, Ala. Code 1975]"); § 43-2-27, Ala. Code 1975
(providing that when the executor named in a will is unfit and neither the
residuary or principal legatees timely apply for letters of administration,
"such letters may be granted to the same persons and in the same order
as letters of administration are granted in cases of intestacy"); § 43-2-42,
Ala. Code 1975 (setting forth the order of priority for persons to serve as
administrators of an intestate's estate and authorizing the appointment
of "[a]ny other person as the judge of probate may appoint" when those
persons with higher priority are unwilling to serve or would be
unsatisfactory appointments).
In Ex parte Baker, 183 So. 3d 139, 141 n.2 (Ala. 2015), this Court
explained that when letters of administration are issued under § 43-2-27,
the words of limitation " 'with the will annexed' or its Latin counterpart
'cum testamento annexo' give notice to persons dealing with the personal
representative that the administration of the estate is guided by the
provisions of a will rather than by the many statutory provisions that
4
1190405, 1191037
On December 13, 2019, Svenby filed a "verified petition for removal"
in the circuit court. In this petition, Svenby argued that he was qualified
to serve as executor of Clare's estate and that the probate court's
appointment of Colley was void. He further stated:
"It is believed that because of the complex and equitable
issues that will arise in the prosecution of [Clare's] estate, ...
such issue[s] should be heard by this court in its appellate
capacity ... de novo. The order disallowing the movant from
serving as executor for the estate of Dorothy Clare hereby
being challenged, disputed, and/or appealed.
"It is therefore requested pursuant to § 12-22-21, Ala.
Code 1975, [that] this court enter an order removing [Clare's]
estate to the circuit court."
In fact, Svenby's petition conflated two separate issues: (1) the circuit
court's authority under § 12-22-21, Ala. Code 1975, to review the probate
court's finding that he was disqualified from serving as executor and (2)
the circuit court's authority under § 12-11-41, Ala. Code 1975, to remove
the administration of Clare's estate from the probate court. Without
addressing this jumbling of the issues, the circuit court granted Svenby's
petition and ordered the probate court to transfer the case, which it did.
govern an intestate estate."
5
1190405, 1191037
Seizing on Svenby's request that the circuit court consider this case
in "its appellate capacity," and the language in his petition invoking § 12-
22-21, Brooks asked the circuit court to dismiss Svenby's "appeal" as
untimely. Specifically, Brooks noted that, under § 12-22-21(2), an appeal
to a circuit court of a probate court's order deeming a party unfit to serve
as the executor of a will "by reason of improvidence" must be taken
"within seven days from the denial of the application." Thus, Brooks
argued, Svenby's attempted December 13 appeal of the probate court's
November 21 order denying his application to serve as executor was
untimely because it was filed 22 days after that order was issued. On
February 11, 2020, the circuit court entered an order effectively denying
Brooks's motion, explaining that "this case is a removed case."3 The
circuit court also removed Colley as administrator with the will annexed
and appointed Svenby as executor to replace him. On February 17, 2020,
3Although the circuit court did not cite § 12-11-41, Ala. Code 1975,
in its order, that statute provides that "[t]he administration of any estate
may be removed from the probate court to the circuit court at any time
before a final settlement thereof ...."
6
1190405, 1191037
Brooks filed an appeal with this Court, docketed as appeal no. 1190405,
challenging the circuit court's removal of Colley.4
Svenby continued to administer Clare's estate while appeal no.
1190405 was pending in this Court. On June 3, 2020, Svenby moved the
circuit court to enter a final settlement of Clare's estate. Less than 24
hours later, the circuit court granted his motion and issued an order of
final settlement. On June 11, 2020, Brooks moved the circuit court to
vacate that order, arguing that final settlement was improper because
Svenby had not filed a verified statement of account as required by § 43-2-
502, Ala. Code 1975, and because the notice and hearing requirements of
§ 43-2-505, Ala. Code 1975, had been ignored.
In contrast to the speed with which it had granted Svenby's motion
for final settlement, the circuit court did not hold a hearing on Brooks's
4Section 12-22-21(3), Ala. Code 1975, authorizes the appeal of "any
decree, judgment or order removing an executor or administrator." See
also Ray v. Huett, 225 So. 3d 30, 36 n.3 (Ala. 2016) (explaining that, while
§ 12-22-21 expressly authorizes appeals from a judgment entered by a
probate court deciding certain issues, this Court has traditionally allowed
appeals from a judgment entered by a circuit court if it decides one of
those same issues).
7
1190405, 1191037
motion for over two months. That hearing was eventually held on August
13, 2020, but, even then, the circuit court failed to enter a ruling, and
Brooks's motion was ultimately denied by operation of law under Rule
59.1, Ala. R. Civ. P. Brooks then appealed the order of final settlement,
and that appeal, docketed as appeal no. 1191037, was consolidated with
appeal no. 1190405 for our consideration.
Standard of Review
The facts underlying these appeals are undisputed. We are asked
to consider only whether the circuit court complied with statutory
requirements governing the removal and appointment of administrators
and the settlement of an estate. We review a circuit court's conclusions
of law and application of law to undisputed facts de novo. Mitchell v.
Brooks, 281 So. 3d 1236, 1243 (Ala. 2019).
Appeal no. 1190405
Brooks argues that the circuit court never obtained subject-matter
jurisdiction over Clare's estate because, she says, Svenby's petition
challenging the probate court's denial of his application to serve as
executor was in substance nothing more than an untimely appeal. See
8
1190405, 1191037
Flannigan v. Jordan, 871 So. 2d 767, 770 (Ala. 2003) (holding that a
petition seeking review of a probate court's decision that was filed after
the seven-day limitations period in § 12-22-21 was untimely and that the
circuit court therefore "lack[ed] subject-matter jurisdiction to review the
case"). To the extent Svenby's petition sought to appeal the denial of his
application to serve as executor, Brooks is correct. Section 12-22-21(2)
clearly states that a party whose application to serve as executor is denied
"by reason of improvidence" must file an appeal to the circuit court within
seven days. Svenby's petition was filed 22 days after the entry of the
probate court's order and was therefore untimely.
Nevertheless, Svenby's petition, while hardly a model of clarity, also
contained a request that the circuit court remove the administration of
Clare's estate from the probate court. Indeed, the petition was styled as
a "verified petition for removal," and, while it contained no express
reference to § 12-11-41, Ala. Code 1975, it stated that, "because of the
complex and equitable issues that will arise in the prosecution of [Clare's]
estate, ... such issue[s] should be heard by [the circuit] court." This
language appears to reference § 12-11-41, which authorizes a circuit court
9
1190405, 1191037
to order the removal of an estate from the probate court at any time before
final settlement when an heir petitions it to do so because, "in the opinion
of the petitioner, such estate can be better administered in the circuit
court than in the probate court."
Thus, the circuit court was effectively presented with a petition that
(1) sought an untimely appeal of the probate court's order denying
Svenby's application to serve as executor of Clare's estate and (2) asked
the circuit court to remove Clare's estate from the probate court. For the
reasons already discussed, the circuit court had no jurisdiction to consider
the untimely appeal. But under § 12-11-41, the circuit court could order
the removal of Clare's estate "at any time before a final settlement." The
circuit court's order removing the estate was therefore authorized by law,
and the circuit court could properly exercise subject-matter jurisdiction
over the administration of the estate once it was removed.
Brooks alternatively argues that, even if the circuit court had
subject-matter jurisdiction over the administration of Clare's estate, its
order removing Colley as administrator had no legal basis. We agree.
Section 43-2-290, Ala. Code 1975, provides that, once an administrator has
10
1190405, 1191037
been appointed, he or she may be removed only for one of the following
reasons:
"(1) Imbecility of mind; intemperance; continued
sickness, rendering him incapable of the discharge of his
duties; or when from his conduct or character there is reason
to believe that he is not a suitable person to have the charge
and control of the estate.
"(2) Failure to make and return inventories or accounts
of sale; failure to make settlements as required by law; or the
failure to do any act as such executor or administrator, when
lawfully required by the judge of probate.
"(3)
The
wasting,
embezzlement
or
any
other
maladministration of the estate.
"(4) The using of any of the funds of the estate for his
own benefit.
"(5) A sentence of imprisonment in the penitentiary,
county jail or for hard labor for the county for a term of 12
months or more."
See also Ex parte Holladay, 466 So. 2d 956, 959-60 (Ala. 1985) ("Alabama
law provides for the removal of an administrator only upon proof of one or
more of those grounds for removal stated in § 43-2-290."). Colley's
appointment was not challenged on any of these grounds. Rather, Svenby
11
1190405, 1191037
simply argued to the circuit court that he should replace Colley as
personal representative because Clare's will nominated him as executor.
On appeal, Svenby does not argue that Colley's removal was justified
under § 43-2-290. He instead argues, essentially, that only probate courts
are bound by § 43-2-290. He states that a circuit court can properly
exercise jurisdiction over any aspect of an estate once the estate has been
properly removed, see generally Allen v. Estate of Juddine, 60 So. 3d 852,
854-55 (Ala. 2010) (stating that, "once a circuit court has properly taken
jurisdiction of the administration of an estate under § 12-11-41, its
jurisdiction over the estate is exclusive"), and argues that the circuit court
therefore acted within its general jurisdictional powers when it removed
Colley as administrator with the will annexed.
Svenby is mistaken. A circuit court properly exercising jurisdiction
over the administration of an estate is empowered "to do all things
necessary for the settlement of such estate, including the appointment and
removal of administrators." Ala. Const. 1901 (Off. Recomp.), art. VI, §
144. But Svenby cites no authority stating that a circuit court's power to
remove an administrator exceeds the power a probate court has to take
12
1190405, 1191037
that same action. And caselaw seems to refute his position that § 43-2-
290 does not apply in a circuit-court proceeding. See Thompson v. Case,
843 So. 2d 197, 200 (Ala. Civ. App. 2002) (recognizing that the appellants
were entitled to make their argument that the administrator should be
removed for waste under § 43-2-290 to the circuit court, which had
previously removed the case).
Svenby did not allege, much less establish, that Colley should be
removed as administrator of Clare's estate for a reason set forth in § 43-2-
290. Therefore, the circuit court erred by removing Colley from that
position. Because Svenby did not appeal the probate court's order denying
his application to serve as executor and appointing Colley as
administrator with the will annexed within the seven-day period provided
by § 12-22-21(2), the circuit court could, after the expiration of that seven-
day period, remove Colley as administrator only as allowed by § 43-2-290.
Appeal no. 1191037
We thus turn to appeal no. 1191037, in which Brooks challenges the
order of final settlement closing Clare's estate. Brooks argues that the
final settlement was improper because (1) Svenby's request for that
13
1190405, 1191037
settlement did not contain a verified statement of account and other
information required by § 43-2-502 and (2) the notice and hearing
requirements of § 43-2-505 were ignored by the circuit court. As in
appeal no. 1190405, Svenby's argument in response amounts to a bare
assertion that a circuit court exercising jurisdiction over the
administration of an estate can exercise that jurisdiction without regard
to statutes that he appears to believe constrain only probate courts.
Svenby is wrong, and his position is unsupported by any authority. See,
e.g., Hall v. Hall, 903 So. 2d 78, 81 (Ala. 2004) (reviewing a judgment
approving a final settlement entered by a circuit court and noting that the
administrator was required to file a statement containing the information
set forth in § 43-2-502).
In contrast, Brooks argues that the circuit court erred by entering
an order of final settlement without complying with the statutory
requirements. Her view is well supported. First, as discussed above, the
appointment of Svenby as executor was void because Colley was
improperly removed as administrator. Svenby therefore had no capacity
to initiate settlement proceedings. See § 43-2-502 (explaining the steps
14
1190405, 1191037
an "executor or administrator" must take when "making settlements of an
administration" (emphasis added)).
Second, even if Svenby's appointment as executor had been proper,
he failed to take the steps required by § 43-2-502. In McCormick v.
Langford, 516 So. 2d 643, 646 (Ala. 1987), a party contesting a final
settlement stated that the probate court had erred in entering an order
approving that settlement because the statement of account filed by the
administrator was not supported by documentary evidence. The
contesting party specifically argued that he was entitled to see and
examine the documents supporting the statement of account so that he
could confirm the accuracy of the final settlement. Id. This Court agreed
and ruled in his favor, explaining that the administrator "was required
under [§ 43-2-502] to file with the probate court those documents
supporting his statement of account ... or to provide a sufficient
explanation for his failure to do so" and that the failure to comply with §
43-2-502 required the reversal of the order approving the final settlement.
Id. If the failure of the administrator in McCormick to support his
statement of account with documentary evidence was a sufficient basis to
15
1190405, 1191037
reverse the final-settlement order entered in that case, Svenby's failure
to submit a statement of account at all certainly merits the same result --
even if he had been properly appointed the personal representative of
Clare's estate.
The circuit court's entry of an order of final settlement less than 24
hours after Svenby (who, again, had no legal status to do so) requested it
-- without complying with the notice requirements of § 43-2-505 and
leaving Brooks without opportunity to be heard -- is likewise problematic
and an additional reason to reverse the circuit court's order. See Lett v.
Weaver, 79 So. 3d 625, 628-29 (Ala. Civ. App. 2010) (explaining that "the
notification requirements for a final-settlement hearing are expressly
stated in § 43-2-505" and that, "[b]ecause the probate court failed to
properly notify the contestants of the [final-settlement] hearing, that
court's judgment of final settlement is void").
Conclusion
Brooks has established that the circuit court erred (1) by removing
Colley as the administrator of Clare's estate and (2) by entering an order
16
1190405, 1191037
approving a final settlement of Clare's estate.5 Accordingly, the circuit
court is directed on remand to vacate those orders and to reinstall Colley
as the duly appointed administrator with the will annexed of Clare's
estate, which remains open. Care should be taken so that future
proceedings contemplating a final settlement of the estate are conducted
in accordance with the terms of the applicable statutes discussed above,
which apply to the administration of all deceaseds' estates, whether in the
probate court or in the circuit court.
1190405 -- REVERSED AND REMANDED.
1191037 -- REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Sellers, J., concurs in the result.
5Svenby argues that any error committed by the circuit court was
harmless and, under Rule 45, Ala. R. App. P., does not require the
reversal of the circuit court's orders because, in any event, Clare's will
unambiguously provides that Brooks and Svenby are to receive equal
shares of her estate. He fails to recognize, however, that the probate court
has already found from its review of the evidence that Svenby's "probable
lack of care and foresight in the management of the estate ... would
endanger its safety" if he were to be appointed executor.
17 | May 28, 2021 |
73fa7851-bf5d-4905-87c9-9cf5b89d3ccd | Ex parte Marvin Anthony Wilson. | N/A | 1200550 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200550
Ex parte Marvin Anthony Wilson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Marvin Anthony Wilson
v. State of Alabama) (Morgan Circuit Court: CC-18-128; Criminal Appeals :
CR-19-0508).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
37baeec2-aa7a-497b-b759-4a331226f8ed | Auburn-Opelika Investments, LLC v. Burdette | N/A | 1190801, 1190767 | Alabama | Alabama Supreme Court | Rel: June 18, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190767
____________________
Martin Burdette
v.
Auburn-Opelika Investments, LLC
____________________
1190801
____________________
Auburn-Opelika Investments, LLC
v.
Martin Burdette
Appeals from Lee Circuit Court
(CV-19-900504)
1190767 and 1190801
STEWART, Justice.
Martin Burdette appeals from a judgment entered by the Lee Circuit
Court ("the trial court") in favor of Auburn-Opelika Investments, LLC
("AOI"), regarding a dispute involving a promissory note entered into by
the parties. AOI cross-appeals from the trial court's judgment denying its
request for relief under the Alabama Litigation Accountability Act ("the
ALAA"), § 12-19-270 et seq., Ala. Code 1975. We affirm the judgment.
Facts and Procedural History
In 2004, Martin Burdette and Susan Burdette, a married couple,
formed AOI, with each owning 50% of the company. After its formation,
AOI obtained a bank loan to purchase certain commercial property. In
2012, Martin and Susan sold property that they owned in Florida for
$432,855. Martin and Susan agreed to use the proceeds from that sale,
along with other funds, to make a loan to AOI so that it could pay off the
bank loan. In May 2012, AOI executed a promissory note in which it
agreed to pay Martin and Susan the principal sum of $489,000, with an
interest rate of 5.75% ("the 2012 note").
2
1190767 and 1190801
In 2014, Martin and Susan divorced. Neither the 2012 note nor
ownership of AOI was addressed in the divorce proceedings. In 2016,
Martin and Susan had a disagreement regarding the management and
operation of AOI, and Martin sued Susan. In June 2017, as part of those
proceedings, Martin and Susan entered into a mediated settlement
agreement wherein Susan agreed to pay Martin $560,000 in exchange for
sole ownership of AOI ("the 2017 agreement"). The 2017 agreement
provided, among other things, that the agreement was "intended to
resolve all presently pending issues between Martin Burdette and Susan
Burdette and is entered into in full and complete settlement of the above
captioned lawsuit" and that the "agreement supersedes any prior
understandings or agreements between the parties, whether or not the
matters are covered in this agreement, except for the 2014 mediated
settlement agreement" in the divorce proceedings. Susan paid Martin
$50,000 in cash, and she executed a promissory note in favor of Martin in
the amount of $510,000. That note was secured by a mortgage on the
property owned by AOI. Susan later sold the property, and she paid the
balance due on the note to Martin in full.
3
1190767 and 1190801
In August 2019, Martin sued AOI, asserting claims of breach of
contract and unjust enrichment. Martin alleged that AOI had failed to pay
Martin the amount owed under the 2012 note, which he asserted was
$244,500. Martin sought $259,500.72, which included accrued interest,
plus court costs, attorney fees, and additional interest. AOI filed an
answer and asserted various affirmative defenses and filed a counterclaim
seeking damages because, it asserted, Martin had commenced the action
without substantial justification.
A trial was held on March 12, 2020. Martin testified that the 2017
agreement does not mention the 2012 note and that AOI was not a party
to that agreement. Martin testified that he had been paid on his share of
the interest on the 2012 note up until the 2017 agreement was entered
into but that he had not received any payments since. Martin testified
that he never agreed that the interest or principal payments to him on the
2012 note would stop after he and Susan entered into the 2017 agreement.
Martin testified that he was still owed $244,500, which, he contented,
amounted to his half of the debt owed by AOI on the 2012 note. Martin
testified that he was never contacted by AOI or Susan regarding
4
1190767 and 1190801
capitalizing the loan he and Susan had made to AOI. Martin
acknowledged that he had accepted $560,000 as his value of half of AOI
from Susan in 2017.
Robert Hudson, a certified public accountant, testified as an expert
witness on behalf of Martin. Hudson testified that he had reviewed the
2012 note and the 2016 and 2017 federal tax returns of AOI, the 2017
agreement, and the 2017 promissory note from Susan to Martin. Hudson
testified that the 2016 tax return showed an "outstanding loan to
partners" of $489,000. Hudson further testified that nothing in the 2017
agreement would indicate that the 2012 note had been canceled or
forgiven. Hudson testified that, in preparing the 2017 AOI tax return, he
would have shown the 2012 note as a continuing loan from partners,
unless he had been given further instructions. Hudson testified that the
2017 tax return showed that the 2012 note had been reclassified as equity
or capital. Hudson explained that, typically, debt is repaid with interest
payments while capital or equity does not necessarily have a promise of
being repaid.
5
1190767 and 1190801
Hudson testified that, when Martin sold his 50% interest in AOI, the
capitalization of the $244,500 debt owed to Martin increased Martin's
basis by the amount of the reclassification and that, as a result, Martin
paid fewer taxes. According to Hudson, if AOI had repaid the 2012 note,
the amount paid to Martin would have been a tax-free return to Martin
of the original principal amount but that, instead, the conversion of that
debt to capital had saved Martin only $61,125 -- the maximum amount of
federal taxes Martin would have had to pay. Hudson opined that the
actual tax amount saved by Martin would have been less because the
calculation of Martin's tax obligation would have also been based on other
capital gains and losses. According to Hudson, a creditor's authorization
is normally needed in order to convert a bona fide loan obligation into
capital, but he also acknowledged that transferring what was a debt to
Martin's capital account for the 2017 tax return was an acceptable general
accounting practice.
Susan testified that, when she had agreed to pay to Martin $560,000
for his interest in AOI, that included all assets and liabilities of AOI,
which included the debt owed under the 2012 note. Susan testified that,
6
1190767 and 1190801
during the mediation, they had agreed that the value of AOI was around
$1 million and that Martin had proposed that Susan pay $560,000 to
acquire his half of AOI. Susan believed that, when they mediated the case,
the payment to Martin of $560,000 included the $244,500 that he was
owed, plus his equity in AOI. Susan acknowledged that Martin never
approved converting the $244,500 to a capital account.
Jeff Hilyer, an attorney and certified public accountant, testified as
Susan's expert witness. Hilyer testified that he had prepared AOI's tax
returns and that Susan had represented to him that the 2017 agreement
settled Martin's claims, that the amount of the 2012 note was no longer
an obligation of AOI, and that, therefore, it was transferred from the
category of "loans to the company" to the category of "capital contributed
to the company." As a result, he said, Martin then had a capital increase
equivalent to half the principal amount of the 2012 note.
Hilyer testified that it is reasonable to assume that an entity is
worth the value of its underlying asset and that, in this case, AOI was
worth the value of the real property that it owned. On direct examination
by Susan's attorney, Hilyer testified to various calculations that he had
7
1190767 and 1190801
done in determining whether Martin had received half the value of AOI
and whether that included his half of the 2012 note:
"[Hilyer:] [Martin] was given $560,000 in the settlement
agreement. And I say on here, payment to note zero, so net to
Martin would have been [$]560,000. Martin had a 50[%]
interest in the entity. So we divide what Martin got by [.5] to
get assumed net sale proceeds [$1,120,000]. The actual
transaction in December of 2019 had a 6[%] sales commission.
So if we apply the 6[%] sales commission, you divide by [.94],
you get an adjusted sales price of $1,191,500, and that's
rounded to the nearest hundred dollars.
"....
"[Hilyer:] When you compare that to the price two and a
half years later, and I would argue that if I took that two and
half years later price and backed it up two and a half years it
would be less. I'm just, for the sake of arguments here, using
that price.
"....
"Martin got [88.6%] of the value comparing apples to
apples.
"Q. Of the value of his one half interest?
"[Hilyer:] Yes. Based on the subsequent sale two and a
half years later.
"....
8
1190767 and 1190801
"[Hilyer:] All right. You go back and do the transaction
assuming [Martin] prevails on his claim here that he is due a
payment of $244,900.[1] I'm looking in column three on the
sheet right here [Exhibit 12]. That means he would have
gotten [$560,000] plus [$]244,900 for a total of [$]804,9[00] for
his half. Converting that to the whole, would mean that the
value of the building, net proceeds from the sale would be
[$]1,609,800 and would gross it up with the 6[%] commission,
means that the building, for that transaction to fly and both of
them get 50/50 and get equal, it would have to sell for
$1,712,600, once again rounded to the nearest hundred dollars.
In other words, it would have to sale for 127[%] of its actual
value for that to happen. And coming to my conclusion that
[Martin] was treated fairly, at [88.6%], you have to consider
the time value, you've got two and a half years involved, the
property could have appreciated in two and a half years. But
in the valuing a fractional interest of an entity, you apply -- a
fraction is not worth -- when you take an entity and
fractionalize the ownership, the sum of the fraction, the pieces,
is less than the value of the whole for two reasons: One, you're
dealing with a lack of marketability. When people buy
something, they want to buy the whole. They don't want to buy
a fractional interest. So to sell a fractional interest in entities
you have to discount them. What we see for IRS tax purposes
is anywhere from 10 to 20 percent discount for a lack of
marketability.
"....
1Half the value of $489,000 is $244,500, but the discrepancy between
that value and Hilyer's testimony is inconsequential for purposes of the
appeal.
9
1190767 and 1190801
"[Hilyer:] Another factor that you use is a minority
interest. Now, this is 50/50, so you could argue that it's not
minority but it's not a majority either. It lacks control. Who
wants to buy an interest in something if they can't control it
and can't sell it, because nobody wants to buy the fractional
interest. Typically a minority interest you see discounts in the
range of 10 to 20 percent. In this particular case we have an
[11.4%] discount ignoring a two and a half year increase in
value, for discounts it could range anywhere from 20 to 40
percent. I think that what he got was fair. And for him to -- to
get his half based on those factors plus half the [2012] note is
unfair. Perhaps unjust enrichment."
On May 18, 2020, the trial court entered a judgment, stating, in
pertinent part:
"The primary dispute between the parties was whether
or not a promissory note executed by [AOI] on May 21, 2012
payable to Martin Burdette and Susan Burdette was satisfied
when Martin Burdette sold his interest in [AOI] to Susan
Burdette in 2017.
"Having duly considered the testimony of all witness and
the exhibits entered into evidence, along with the arguments
of counsel, the Court finds that ... Martin Burdette failed to
carry his burden of proof, as follows:
"Based upon the evidence presented, including the
testimony of the parties, and the analysis and testimony of Jeff
Hilyer, CPA and Robert Hudson, CPA, the Court finds that the
2012 Promissory Note at issue in this case was satisfied when
[Martin] received payment of the $560,000.00, from Susan
Burdette, for his interest in [AOI].
10
1190767 and 1190801
"Therefore, judgment is due to be, and is hereby, entered
against ... Martin Burdette, and in favor of the Defendant,
[AOI].
"The Court finds that the Defendant, [AOI] failed to
carry its burden of proof as to its Counterclaim against
[Martin] pursuant to the Alabama Litigation Accountability
Act. The Court is unable to find that the action brought on by
[Martin] was filed without substantial justification, was
frivolous, groundless in fact and in law, and interposed for
improper purpose.
"Therefore, on the Defendant's Counterclaim, Judgment
is due to be, and is hereby, entered for [Martin] and against
Defendant, [AOI]."
Martin appealed and AOI cross-appealed.
Standard of Review
"Our ore tenus standard of review is well settled. ' "When a
judge in a nonjury case hears oral testimony, a judgment based
on findings of fact based on that testimony will be presumed
correct and will not be disturbed on appeal except for a plain
and palpable error." ' Smith v. Muchia, 854 So. 2d 85, 92 (Ala.
2003) (quoting Allstate Ins. Co. v. Skelton, 675 So. 2d 377, 379
(Ala. 1996)).
" ' " The ore tenus rule is grounded upon the
principle that when the trial court hears oral
testimony it has an opportunity to evaluate the
demeanor and credibility of witnesses." Hall v.
Mazzone, 486 So. 2d 408, 410 (Ala. 1986). The rule
applies to "disputed issues of fact," whether the
dispute is based entirely upon oral testimony or
11
1190767 and 1190801
upon a combination of oral testimony and
documentary evidence. Born v. Clark, 662 So. 2d
669, 672 (Ala. 1995). The ore tenus standard of
review, succinctly stated, is as follows:
" ' "[W]here the evidence has been
[presented] ore tenus, a presumption of
correctness attends the trial court's
conclusion on issues of fact, and this
Court will not disturb the trial court's
conclusion unless it is clearly erroneous
and against the great weight of the
evidence, but will affirm the judgment
if, under any reasonable aspect, it is
supported by credible evidence." '
"Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791,
795 (Ala. 2000) (quoting Raidt v. Crane, 342 So. 2d 358, 360
(Ala. 1977)). However, 'that presumption [of correctness] has
no application when the trial court is shown to have
improperly applied the law to the facts.' Ex parte Board of
Zoning Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994)."
Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 67-68 (Ala. 2010).
Discussion
I. Martin's Appeal
Martin raises numerous arguments challenging the trial court's
judgment, many of which are not relevant to the disposition of this appeal.
For example, Martin spends a portion of his brief arguing that the 2012
12
1190767 and 1190801
note was valid and subject to Florida laws.2 However, it is undisputed that
the 2012 note was valid and enforceable when it was executed. Martin
argues that the 2012 note was not modified, canceled, or discharged and
that, as a result, AOI still owes to him $244,500, plus accrued interest.
AOI does not argue, and the trial court did not find, that the 2012 note
had been modified or canceled. Instead, AOI argued that the 2012 note
was satisfied when Martin sold his interest in AOI to Susan via the 2017
agreement. AOI points to language in the 2017 agreement stating that it
was intended to settle all disputes between the parties, and AOI also
relies on the evidence from Susan and Hilyer during the trial. AOI further
asserts that Martin's acceptance of the $560,000 constitutes an accord and
satisfaction.
Martin argues that the 2017 agreement did not modify AOI's assets
and liabilities and that AOI was not a party to the 2017 agreement.
Martin further argues that the 2017 agreement is unambiguous and that,
2The 2012 note was executed in Florida, and the note itself provides
that it is to be governed by Florida laws. Martin argues that the Florida
Statute of Frauds required that any modification of the 2012 note be in
writing.
13
1190767 and 1190801
therefore, the trial court was required to interpret it based on the text of
the agreement alone and could not consider Susan's testimony and beliefs
about the effect of the 2017 agreement.3 This Court has explained,
however:
"A latent ambiguity ... exists when the 'writing appears clear
and unambiguous on its face,"but there is some collateral
matter which makes the meaning uncertain." ' Medical Clinic
Bd. of City of Birmingham-Crestwood v. Smelley, 408 So. 2d
1203, 1206 (Ala. 1981) (quoting Ford v. Ward, 272 Ala. 235,
240, 130 So. 2d 380, 384 (1961)). In making the threshold
determination of whether there is a latent ambiguity, a court
may consider extrinsic evidence. Brown v. Mechanical
Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 942
(Ala. 1983). If it determines that a latent ambiguity exists, the
court may then consider and rely upon extrinsic evidence to
determine the true intentions of the parties to the contract.
Mass Appraisal Servs., Inc. v. Carmichael, 404 So. 2d 666, 672
(Ala. 1981)."
Dupree v. PeoplesSouth Bank, 308 So. 3d 484, 490 (Ala. 2020). It is
apparent from the parties' disagreement regarding whether the language
3Martin further argues that, even if the trial court believed Susan's
testimony, Susan's mistaken beliefs regarding the import of the 2017
agreement would not permit the trial court to revise the 2017 agreement
because, he asserts, those beliefs would only amount to a unilateral
mistake. The trial court did not operate under the theory of contract
avoidance or revision or otherwise find that there had been a mistake.
Instead, the trial court found that AOI's debt to Martin had been satisfied
when Susan purchased Martin's interest in AOI.
14
1190767 and 1190801
of the 2017 agreement and the payment of $560,000 applied to AOI's
outstanding debt to Martin that a latent ambiguity exists. The trial court,
therefore, was permitted to consider extrinsic evidence.
In considering the extrinsic evidence, the trial court specifically
found that AOI's obligation to Martin under the 2012 note was satisfied
when Martin received $560,000 for his share of AOI. This Court has
explained:
" 'An accord and satisfaction is an agreement reached
between competent parties regarding payment of a debt the
amount of which is in dispute. Limbaugh v. Merrill Lynch,
Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir. 1984);
O'Neal v. O'Neal, 284 Ala. 661, 227 So. 2d 430 (1969). There
can be no accord and satisfaction "without the intentional
relinquishment of a known right." Id. at 663, 227 So. 2d at 431.
" 'Like any other contract, a valid accord and satisfaction
requires consideration and a meeting of the minds regarding
the subject matter. Bank Indep. v. Byars, 538 So. 2d 432, 435
(Ala. 1988); Farmers & Merchants Bank of Centre v. Hancock,
506 So. 2d 305, 310 (Ala. 1987); Austin v. Cox, 492 So. 2d 1021,
1022 (Ala. 1986); Ray v. Alabama Central Credit Union, 472
So. 2d 1012, 1014 (Ala. 1985).' "
Ex parte Meztista, 845 So. 2d 795, 797-98 (Ala. 2001)(quoting Leisure Am.
Resorts v. Carbine Constr. Co., 577 So. 2d 409, 411 (Ala. 1990)).
15
1190767 and 1190801
Susan testified that she and Martin intended to include the debt
evidenced by the 2012 note in the 2017 agreement, that they had agreed
that AOI was valued at around $1 million, and that her payment of
$560,000 to Martin for his interest in AOI included the debt owed to
Martin under the 2012 note. Hilyer testified that Martin's receipt of
$560,000 constituted 88.6% of his share of the value of AOI, after
considering the amount for which AOI's sole asset -- the real property --
sold. Hilyer also opined that, for Martin to fairly receive the $244,500 in
addition to the $560,000 he already had received, one would have to
assume a value much higher than what the real property actually sold for.
Based on that evidence, the trial court could have found that, as part of
the 2017 agreement, Susan and Martin had agreed that the $244,500
owed to Martin under the 2012 note would be included in the $560,000
and that Martin intentionally relinquished the right to otherwise pursue
the repayment of that debt. Although Martin testified that he did not
intend for the $244,500 to be included in that amount, the trial court was
presented with conflicting evidence, and "[i]t was within the province of
the trial court judge as the fact-finder to resolve any conflicts in the
16
1190767 and 1190801
testimony and to judge the credibility of the witnesses." Imperial
Aluminum-Scottsboro, LLC v. Taylor, 295 So. 3d 51, 61-62 (Ala.
2019)(citing Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986)). In
considering that conflicting evidence, the trial court had the benefit of
viewing Martin and Susan testify, and that advantage is the basis of the
ore tenus rule. See Hall v. Mazzone, 486 So. 2d 408, 410 (Ala. 1986).
Because there is evidence to support the trial court's determination that
the payment of $560,000 pursuant to the 2017 agreement included the
$244,500 owed to Martin under the 2012 note and that the debt was
satisfied, a presumption of correctness attends the trial court's conclusion,
and we will not disturb that conclusion on appeal. Kennedy, 53 So. 3d at
68.
Martin also argues that AOI is estopped from asserting that the
2012 note was satisfied by the 2017 agreement because, he contends,
although AOI stopped making payments to him after he and Susan
entered into the 2017 agreement, it continued making payments to
Susan. Martin also argues that the capitalization of the debt did not
constitute payment, satisfaction, or cancellation of the 2012 note because
17
1190767 and 1190801
it was done without Martin's consent and that the transfer of the debt to
Martin's capital account recognizes that there was an outstanding debt
owed to Martin after he and Susan entered into the 2017 agreement.
Because the trial court's judgment is supported by the evidence, and
because this Court "will affirm the judgment appealed from if supported
on any valid legal ground," Tucker v. Nichols, 431 So. 2d 1263, 1265 (Ala.
1983), we need not discuss these arguments, which all involve the trial
court's resolution of disputed factual issues.
Martin also argues that the capitalization of the 2012 note unjustly
enriched AOI. To be successful on an unjust-enrichment claim, a plaintiff
must demonstrate, among other things, that the defendant has wrongfully
retained money that belongs to the plaintiff. Mantiply v. Mantiply, 951 So.
2d 638, 654 (Ala. 2006). Martin asserts that AOI accepted the benefit of
the money he loaned it and that it wrongfully retained that money by
capitalizing the debt rather than repaying it to Martin. As explained
above, however, there is evidence in the record to support the trial court's
determination that Martin was repaid the money owed to him under the
2012 note. Accordingly, the evidence would support a conclusion that
18
1190767 and 1190801
Martin did not present evidence demonstrating that AOI had wrongfully
retained money that belonged to him, and, thus, Martin failed to
demonstrate that AOI had been unjustly enriched.
II. AOI's Cross-Appeal
AOI challenges the trial court's judgment insofar as it determined
that AOI did not demonstrate that Martin's action was commenced
without substantial justification. AOI relies on the ALAA. Pursuant to §
12-19-272(a), Ala. Code 1975, a part of the ALAA, a trial court "shall
award ... reasonable attorneys' fees and costs against any attorney or
party, or both, who has brought a civil action, or asserted a claim therein,
or interposed a defense, that a court determines to be without substantial
justification." The phrase “without substantial justification” is defined in
§ 12-19-271, Ala. Code 1975, as an action that is "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, as determined by the court." This Court
has explained:
19
1190767 and 1190801
"If a court denies a claim for attorney fees under the ALAA
after holding a hearing on that claim, and the party seeking
attorney fees appeals that denial arguing that the subject
action, claim, defense, or appeal was frivolous, groundless in
fact, vexatious, or interposed for an improper purpose, the
appellate standard of review is equivalent to the ore tenus
standard of review. ... If a court denies a claim for attorney
fees under the ALAA after holding a hearing on that claim,
and the party seeking attorney fees appeals that denial
arguing that the subject action, claim, defense, or appeal was
groundless in law, the appellate standard of review is de novo
...."
Ex parte Loma Alta Prop. Owners Ass'n, 52 So. 3d 518, 523-24 (Ala. 2010).
AOI argues that Martin commenced the action against it without
substantial justification because, it asserts, Martin was "fully aware that
he has been paid in full for his interest in the 2012 Promissory Note and
despite that fact, [he] initiated the groundless underlying lawsuit." AOI's
brief at p. 24. AOI also argues that Martin commenced the action with the
intent to harass Susan. AOI contends that Martin's action is frivolous and
is groundless in fact and in law. As explained above, the trial court was
confronted with conflicting evidence regarding whether AOI's debt to
Martin had been satisfied by the 2017 agreement, and it had the
opportunity to observe Martin testify. Martin testified that he did not
20
1190767 and 1190801
believe that the 2017 agreement and the payment of $560,000
encompassed the $244,500 owed to him. Although the trial court found in
favor of AOI on the substantive claims Martin asserted in his complaint,
the trial court could have determined that the issues of fact surrounding
Martin's claim were reasonably in conflict. Accordingly, the trial court's
factual determination that Martin's action was not frivolous or groundless
in fact is supported by the evidence. Moreover, this Court's review of the
record, in particular of Martin's assertions in the trial court, leads us to
conclude that Martin's claims against AOI were not groundless in law.
Accordingly, the trial court's decision to not award attorney fees and costs
to AOI under the ALAA is affirmed.
Conclusion
Based on the foregoing, we affirm the judgment.
1190767 -- AFFIRMED.
Parker, C.J., and Bolin and Wise, JJ., concur.
Sellers, J., concurs in the result.
1190801 -- AFFIRMED.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur.
21 | June 18, 2021 |
e4dbb5a1-f1c3-4262-b832-33045a79bc10 | Ex parte J.W. | N/A | 1200360 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200360
Ex parte J.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-600.04; Civil Appeals
:
2190787).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Bolin, Wise, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
1585a8c2-aa62-419b-a9e4-f69ae8dbe814 | Raymond Charles Bryan v. Alabama State Bar Association | N/A | 1190776 | Alabama | Alabama Supreme Court | Rel: May 21, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190776
Raymond Charles Bryan v. Alabama State Bar Association (Appeal from
Disciplinary Board of Alabama State Bar, ASB-2020-133).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. | May 21, 2021 |
9d947cd3-5a2f-4319-a0c3-065b60f9e7a0 | Clay County Animal Shelter, Inc. v. Clay County Commission et al. | N/A | 1190947 | Alabama | Alabama Supreme Court | Rel: May 28, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190947
____________________
Clay County Animal Shelter, Inc.
v.
Clay County Commission et al.
Appeal from Clay Circuit Court
(CV-18-900023)
STEWART, Justice.1
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Stewart on February 19, 2020.
1190947
Clay County Animal Shelter, Inc. ("the animal shelter"), appeals
from a judgment entered by the Clay Circuit Court ("the trial court")
declaring Act No. 2018-432, Ala. Acts 2018, to be unconstitutional. The
parties to this appeal have previously been before this Court in a related
appeal. See Clay Cnty. Comm'n v. Clay Cnty. Animal Shelter, Inc., 283 So.
3d 1218 (Ala. 2019) ("Clay County").
Facts and Procedural History
The animal shelter is a nonprofit organization that provides food,
water, medical care, spay and neutering services, and adoption services
for stray and abandoned animals in Clay County. The animal shelter is a
"no-kill" shelter where the animals are humanely cared for until adopted
or transferred to other shelters for eventual adoption. Most of the people
working at the animal shelter are unpaid volunteers. The animal shelter
incurs numerous expenses associated with operating the shelter and
caring for the animals. The legislature has sought to provide funding to
the animal shelter with proceeds from the tobacco tax authorized in Clay
County pursuant to § 45-14-244, Ala. Code 1975 (Local Laws, Clay
County).
2
1190947
This Court set forth the following in Clay County:
"In March 2017, the legislature enacted Act No. 2017-65,
Ala. Acts 2017, which provides, in pertinent part:
" 'Section 1. This act shall apply only in Clay
County.
" 'Section 2. (a) The proceeds from the tobacco
tax authorized in Clay County pursuant to Section
45-14-244 of the Code of Alabama 1975, and as
further provided for in Sections 45-14-244.01 to
45-14-244.03, inclusive, and Section 45-14-244.06
of the Code of Alabama 1975, less two percent of
the actual cost of collection, which shall be retained
by the Department of Revenue, shall be distributed
to the Clay County General Fund to be expended as
follows:
" '....
" '(3) Eighteen percent to the Clay County
Animal Shelter. The Clay County Animal Shelter
shall annually report to the county commission
regarding the expenditure of the funds in the
preceding year.
" '....
" 'Section 4. This act shall become effective on
October 1, 2017.'
"In July 2017, the [Clay] [C]ounty [C]ommission and
three individuals (hereinafter referred to collectively as 'the
plaintiffs') initiated an action in the trial court against the
3
1190947
animal shelter and certain state officials. In their complaint,
the plaintiffs sought injunctive relief and a judgment,
pursuant to § 6-6-220 et seq., Ala. Code 1975, declaring that
part of Act No. 2017-65 directing an expenditure of a portion
of Clay County's tobacco-tax proceeds to the animal shelter to
be unconstitutional.
"The plaintiffs asserted that Act No. 2017-65 was
improperly enacted without a sufficient number of legislative
votes in violation of Article IV, § 73, Ala. Const. 1901, which
provides:
" 'No appropriation shall be made to any
charitable or educational institution not under the
absolute control of the state, other than normal
schools established by law for the professional
training of teachers for the public schools of the
state, except by a vote of two-thirds of all the
members elected to each house.'
"The plaintiffs also filed a motion seeking a preliminary
injunction to temporarily restrain distribution of Clay County's
tobacco-tax receipts to the animal shelter. The animal shelter
moved to dismiss the plaintiffs' complaint.
"The trial court conducted a hearing regarding the
county commission's motion for a preliminary injunction. On
October 26, 2017, the trial court entered an order requiring the
portion of Clay County's tobacco-tax receipts that would be
distributed to the Clay County General Fund to be disbursed
as an expenditure to the animal shelter under Act No. 2017-65
to be paid into the trial-court clerk's office and held in an
escrow account pending the entry of a final judgment. On
January 16, 2018, the trial court conducted a bench trial, at
which only documentary evidence was admitted.
4
1190947
"At the trial, the county commission argued that Act No.
2017-65 appropriated public funds to the animal shelter and
that, because the animal shelter is a charitable organization
not under the absolute control of the state, the appropriation
was subject to the requirements of § 73, instead of the ordinary
requirements for the passage of bills by the legislature. As
noted above, § 73 requires that applicable appropriations be
approved 'by a vote of two-thirds of all the members elected to
each house.' It was undisputed that Act No. 2017-65 did not
receive the vote of two-thirds of all the members elected to
each house. The county commission argued that that portion
of Act No. 2017-65 purporting to distribute funds to the Clay
County General Fund to be disbursed to the animal shelter is,
therefore, unconstitutional.
"In March 2018, the legislature enacted Act No.
2018-432, Ala. Acts 2018, 'to amend Section 2 of Act 2017-65
of the 2017 Regular Session, now appearing as Section 45-14-
244.07 of the Code of Alabama 1975, to further provide for the
distribution of the local tobacco tax; and to provide for
retroactive effect.'[2] In relevant part, Act No. 2018-432
purports to amend § 45-14-244.07 to increase the share of Clay
County's tobacco-tax revenue to be distributed to the Clay
County General Fund to be disbursed to the animal shelter
from 18% to 20%.
"On April 13, 2018, the trial court entered a final
judgment declaring that the county commission had failed to
meet its burden of proving that the challenged portion of Act
No. 2017-65 is unconstitutional. The trial court also ordered
'that the distribution of the proceeds from the tobacco tax
2It is undisputed that the enactment of Act No. 2018-432 satisfied
the requirements of Article IV, § 73, Ala. Const. 1901 (Off. Recomp.).
5
1190947
authorized in Clay County be immediately distributed in
accordance with Act [No.] 2017-65, or any law superseding or
replacing said Act.' The plaintiffs filed a motion to stay
execution of the trial court's judgment, asserting, among other
things:
" '[The p]laintiffs note [that] the Court's judgment
directs the county to "immediately distribute [the
tobacco-tax proceeds] in accordance with Act [No.]
2017-65, or any law super[s]eding or replacing said
Act." (emphasis added). Although not expressly
stated, the Court's inclusion of "any law
super[s]eding or replacing said Act" appears to
refer to ... Act [No.] 2018-432 ... which purports to
provide retroactive appropriations to the [a]nimal
[s]helter from the County's tobacco tax receipts.
" '....
" '11. [The county commission] will seek a
declaratory judgment that [Act No. 2018-432] is
void, invalid, and unconstitutional ... and therefore,
[the county commission's] appeal of the judgment
in the instant case will be determinative of
whether the funds held in escrow are due to be
released to the [a]nimal [s]helter.'
"The trial court conducted a hearing regarding the
plaintiffs' motion and entered an order providing as follows:
" '[The p]laintiffs' motion to stay the
implementation of Act [No.] 2018-432, pending a
hearing on the merits of [the county commission's]
challenge to said Act is GRANTED.
6
1190947
" '[The p]laintiffs' request to stay the
implementation of Act [No.] 2017-65 is DENIED.' "
283 So. 3d at 1220-22 (footnotes omitted).
On appeal in Clay County, the Clay County Commission ("the county
commission") argued that the trial court had erred in determining that it
had failed to meet its burden of proving that the provision of Act No.
2017-65 directing that a portion of Clay County's tobacco-tax proceeds be
distributed to the Clay County General Fund to be disbursed to the
animal shelter had received a sufficient number of legislative votes to
become law. Specifically, the county commission argued that the portion
of Act No. 2017-65 directing that a portion of Clay County's tobacco-tax
proceeds be disbursed to the animal shelter was an appropriation of funds
by the legislature without a two-thirds vote of all the members elected to
each house and, therefore, violated Article IV, § 73, Ala. Const. 1901 (Off.
Recomp.). This Court agreed, holding:
"Legislative appropriations must comply with the
requirements of the Alabama Constitution, including § 73. The
plain meaning of the language in Act No. 2017-65 provides for
an appropriation to the animal shelter of 18% of Clay County's
tobacco-tax proceeds. The animal shelter does not dispute that
it is a 'charitable or educational institution not under the
7
1190947
absolute control of the state' within the meaning of § 73, nor
does it argue that an appropriation to it would be exempt from
the voting requirements of § 73. Thus, the legislature's
appropriation to the animal shelter had to receive 'a vote of
two-thirds of all the members elected to each house' to comply
with § 73. It did not. That part of Act No. 2017-65
appropriating 18% of Clay County's tobacco-tax proceeds, i.e.,
Section 2(a)(3), is, therefore, unconstitutional."
Clay County, 283 So. 3d at 1234-35. This Court reversed the trial court's
judgment and remanded the cause for further proceedings.
As mentioned in Clay County, in March 2018 the legislature enacted
Act No. 2018-432, Ala. Acts 2018, to amend Section 2 of Act No. 2017-65.
Act No. 2018-432 provides:
"ENROLLED, An Act,
"Relating to Clay County; to amend Section 2 of Act
2017-65 of the 2017 Regular Session, now appearing as Section
45-14-244.07 of the Code of Alabama 1975, to further provide
for the distribution of the local tobacco tax; and to provide for
retroactive effect.
"BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
"Section 1. Section 2 of Act 2017-65 of the 2017 Regular
Session, now appearing as Section 45-14-244.07 of the Code of
Alabama 1975, is amended to read as follows:
" '§ 45-14-244.07.
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" '(a) The proceeds from the tobacco tax
authorized in Clay County pursuant to Section
45-14-244, and as further provided for in Sections
45-14-244.01 to 45-14-244.03, inclusive, and
Section 45-14-244.06, less two percent of the actual
cost of collection, which shall be retained by the
Department of Revenue, shall be distributed to the
Clay County General Fund to be expended as
follows:
" '(1) Thirty-two percent to the Alabama
Forestry Commission to be utilized for fire
protection in the county, as provided in subsection
(b).
" '(2) Twenty percent to the Clay County
Industrial Development Council.
" '(3) Twenty percent to the Clay County
Animal Shelter. The Clay County Animal Shelter
shall annually report to the county commission
regarding the expenditure of the funds in the
preceding year.
" '(4) Thirteen percent to the Clay County
Commission to be deposited into a special fund in
the county treasury and, subject to an application
process developed by the county commission,
disbursed to water districts in the county for the
purpose of installing feeder lines. The county
commission shall have the authority to develop
guidelines, promulgate rules, and institute an
application process to provide for the disbursement
of the funds.
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" '(5) Fifteen percent shall be retained in the
Clay County General Fund to be utilized as are
other county funds.
" '(b) The funds distributed to the Alabama
Forestry Commission shall be payable on a
quarterly or monthly basis and will be expended
solely for purposes of fire protection, prevention,
and fire safety education in order to encourage a
strong volunteer firefighters' network in Clay
County. The proceeds shall be distributed to
volunteer fire departments in the county as
determined by rules and regulations set up by the
Alabama Forestry Commission and the Clay
County Volunteer Firefighters Association on an
equal basis, share and share alike. None of the
proceeds shall be used for salaries nor to pay
members for any performance of duties associated
with the department. Any member fire department
which fails to meet the standards and criteria shall
be denied its share of the funding. The association
shall give noncomplying member fire departments
proper notice of all deficiencies and a reasonable
time period to correct the deficiencies before any
funds are denied.'
"Section 2. This act shall become effective on October 1,
2017."
Act No. 2018-432, in part, amended § 45-14-244.07, Ala. Code 1975 (Local
Laws, Clay County), to increase the share of Clay County's tobacco-tax
proceeds to be distributed to the Clay County General Fund to be
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disbursed to the animal shelter from 18% to 20%. Act No. 2018-432 also
amended § 45-14-244.07 to decrease from 15% to 13% the share of Clay
County's tobacco-tax proceeds to be disbursed to the county commission
for deposit into a special fund for further disbursement to water districts
in Clay County for the purpose of installing feeder lines.
While Clay County was still pending on appeal, the county
commission, Donald M. Harris, and Mary M. Wood ("the plaintiffs") sued
the animal shelter seeking a judgment declaring that Act No. 2018-432
violates of Article IV, § 111.03 and § 95, Ala. Const. of 1901 (Off. Recomp.).
The animal shelter answered the plaintiffs' complaint, and moved the trial
court to lift the stay implementing Act No. 2018-432 and to release the
funds previously ordered by the trial court to be held in escrow.
The plaintiffs amended their complaint for declaratory relief to seek
a judgment declaring that Act No. 2018-432 also violates "the single-
subject rule" set forth in Article IV, § 45, Ala. Code 1975 (Off. Recomp.).
The plaintiffs alleged that Act No. 2018-432 contains more than one
subject because it both alters an existing earmark and simultaneously
appropriates funds to the animal shelter; because it provides for
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appropriations for multiple purposes and to multiple non-State agencies,
i.e., volunteer fire departments and the animal shelter; because the
appropriation to the animal shelter is an additional and distinctive subject
that was not a subject of any prior local acts concerning Clay County's
tobacco tax; and because its title is devoid of any reference to the fact that
it provides an appropriation to the animal shelter.
On October 7, 2019, the animal shelter filed a counterclaim seeking
declaratory and injunctive relief. The animal shelter sought, among other
things, a judgment declaring that Act No. 2018-432, insofar as it
appropriates a portion of Clay County's tobacco-tax proceeds to the animal
shelter, is constitutional. The animal shelter also sought an order
releasing to it the funds previously ordered by the trial court to be held in
escrow by the trial-court clerk.
The animal shelter moved the trial court for a judgment on the
pleadings, contending that Act No. 2018-432 is constitutional and
requesting that it be allowed to access the funds held in escrow by the
trial-court clerk. The animal shelter argued, among other things, that Act
No. 2018-432 does not violate § 45 because, it asserted, the language in
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the title to the act providing "for the distribution of the local tobacco tax"
is the single subject of Act No. 2018-432 and, it asserted, the additional
language contained in the act that describes how and to whom the tax
proceeds shall be disbursed is related to the subject and necessary to make
the act complete. The plaintiffs also filed a motion for a judgment on the
pleadings, contending that they were entitled to a judgment as a matter
of law declaring Act No. 2018-432 to be null, void, and unenforceable
because it violated § 45.
The trial court entered a judgment finding that Act No. 2018-432
violates § 45 and is "unconstitutional, void and invalid." The trial court
entered a subsequent order denying the animal shelter's motions to lift
the stay and to order the release of the funds held in escrow by the trial-
court clerk. The animal shelter appealed. This Court granted motions
filed by the State of Alabama and Senator Jimmy Holley, Chair of the
Legislative Council of the Alabama Legislature, to file amicus curiae
briefs in support of the animal shelter. The county commission is the only
plaintiff that filed an appellee's brief with this court.
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Standard of Review
An appellate court reviews constitutional challenges to legislative
enactments applying the de novo standard. Northington v. Alabama Dep't
of Conservation & Nat. Res., 33 So. 3d 560, 564 (Ala. 2009). Acts of the
legislature are presumed to be constitutional. State v. Alabama Mun. Ins.
Corp., 730 So. 2d 107, 110 (Ala. 1998). Accordingly, we approach the
question of the constitutionality of a legislative act " ' "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 the
government." ' " Monroe v. Harco, Inc., 762 So. 2d 828, 831 (Ala. 2000)
(quoting Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 159 (Ala. 1991),
quoting in turn Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9,
18 So. 2d 810, 815 (1944)). This is so, because "it is the recognized duty of
the court to sustain the act unless it is clear beyond a reasonable doubt
that it is violative of the fundamental law." McAdory, 246 Ala. at 9, 18 So.
2d at 815. The party challenging the constitutionality of an act bears the
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burden of overcoming the presumption of constitutionality. Thorn v.
Jefferson Cnty., 375 So. 2d 780, 787 (Ala. 1979).
Discussion
The animal shelter contends that Act No. 2018-432 does not violate
the "single-subject rule" applicable to legislation as mandated by § 45.
Section 45 provides in relevant part that "[e]ach law shall contain but one
subject, which shall be clearly expressed in its title, except general
appropriation bills, general revenue bills, and bills adopting a code, digest,
or revision of statutes." The general aim of the single-subject rule is to
promote transparency, clarity, and accountability in the legislative process
by limiting legislation to one objective. As this Court has stated, the rule
serves three primary purposes. See Bagby Elevator & Elec. Co. v.
McBride, 292 Ala. 191, 194, 291 So. 2d 306, 308 (1974). See also Opinion
of the Justices No. 215, 294 Ala. 555, 564, 319 So. 2d 682, 691 (1975).
First, it affords the public of reasonable notice of the subject and the
contents of the legislation that is being considered. Second, the rule
simplifies the legislative process by providing legislators a means to better
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understand the objectives and ramifications of proposed legislation, while
deterring surprise and fraud by the inadvertent passage of provisions
unrelated to the title of the legislation. Third, the rule prevents
"logrolling," which is "[t]he legislative practice of including several
propositions in one measure or proposed constitutional amendment so
that the legislature or voters will pass all of them, even though these
propositions might not have passed if they had been submitted
separately." Black's Law Dictionary 1129 (11th ed. 2019).
Consistent with the presumption favoring the validity and
constitutionality of legislation, in reviewing whether legislation violates
the single-subject rule, this Court will accord the legislation a liberal
interpretation without requiring hypercritical exactness or strict
enforcement " 'in such manner as to cripple legislation.' " Knight v. West
Alabama Env't. Improvement Auth., 287 Ala. 15, 22, 246 So. 2d 903, 908
(1971)(quoting Opinion of the Justices No. 174, 275 Ala. 254, 257, 154 So.
2d 12, 15 (1963)). See also Smith v. Industrial Dev. Bd. of Andalusia, 455
So. 2d 839, 841 (Ala. 1984) ("This Court has always given a liberal
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construction to the provisions of § 45 ...."). Applying a liberal construction
to § 45, this Court has established that "[t]he title of a bill need not specify
every provision contained. The 'one subject' test of [§ 45] is satisfied when
the bill's provisions are all referable to and cognate of the subject of the
bill," Opinion of the Justices No. 215, 294 Ala. 555, 564, 319 So. 2d 682,
692 (1975)(citing Boswell v. State, 290 Ala. 349, 276 So. 2d 592 (1973), and
Opinion of the Justices No. 174, supra). This Court has stated that "[t]he
general rule is that generality or comprehensiveness of the subject is not
a violation of section 45, and that a broad, comprehensive subject justifies
the inclusion of any matter not incongruous or unconnected with the
subject, provided the title is not uncertain or misleading." Harris v. State
ex rel. Williams, 228 Ala. 100, 103, 151 So. 858, 860 (1933).
The single-subject rule encompasses two primary requirements of
legislation. Specifically, the legislation must be limited to a single subject
and the single subject must be clearly expressed in the title of the
legislation. See Bagby Elevator & Elec., 292 Ala. at 194, 291 So. 2d at 308.
The animal shelter contends that Act No. 2018-432 is an act that amends
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an existing revenue statute that applies specifically to taxes levied in Clay
County. The animal shelter argues that, under this Court's precedent, Act
No. 2018-432 contains a single subject pertaining to the earmarking of the
tax revenue and that the title of the act properly expresses that subject.
In support of its proposition that Act No. 2018-432 satisfies both prongs
of the single-subject rule, the animal shelter cites Harris, supra, Lane v.
Gurley Oil Co., 341 So. 2d 712 (Ala. 1977), and Nachman v. State Tax
Commission, 233 Ala. 628, 173 So. 25 (1937).
In Harris, the Court assessed the constitutionality of a 1923 act of
the legislature that amended an existing revenue law. The amendatory
act included provisions to address the escape of taxation by motor-vehicle
owners, and it created the position of deputy tax assessor, whose duty
would be to assess all personal property that was subject to, but had
escaped, taxation. The title of the amendatory act stated that the subject
of the act included " 'to further provide for the revenue of the State of
Alabama.' " 228 Ala. at 102, 151 So. at 860. The Court held that "further
provision for or an amendment of the state's revenue in its various
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aspects, whether to provide for it or to regulate matters pertaining to it,
or to amend it generally, is one subject and may be so expressed in the
title of an act." 228 Ala. at 104, 151 So. at 861. Accordingly, the Court
concluded:
"One feature of the act of 1923 here in question provides
the machinery for collecting the ad valorem tax on motor
vehicles, and to prevent them from escaping such tax, and
another creates a deputy tax assessor to assess and collect
escapes of other personal property in aid of other existing
machinery to that end. But they are both for the purpose of
further providing for the revenue of the state as described in
the title, or to amend the state's revenue law, which is the
essence of the title. The act does not therefore violate section
45 of the Constitution by containing two subjects."
Id. The animal shelter contends that, like the amendatory act in Harris,
Act No. 2018-432 amends a revenue statute and, thus, pertains to that
single subject, which was stated in the title of the act.
The animal shelter also contends that Act No. 2018-432 does not
contain more than one subject merely because it provides for more than
one use of the revenue collected. It argues that because the tobacco-tax
revenue is earmarked for several recipients on a percentage basis, when
the legislature enacted Act No. 2018-432 to amend the revenue statute to
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disburse 20%, rather than 18%, of the tobacco tax proceeds to the animal
shelter, the legislature necessarily had to adjust another share and did so
by decreasing from 15% to 13% the share of tobacco-tax proceeds to be
disbursed to the county commission for further disbursement to the water
districts in Clay County for the purpose of installing feeder lines. In Lane,
341 So. 2d 712, this Court considered the constitutionality of Act No.
1971-1403, Ala. Acts 1971. The title of that act provided as follows:
" 'To provide for inspection of certain petroleum products,
including those commonly known as gasoline, naphtha, diesel
fuel, kerosene and lubricating oil, that are sold, offered for
sale, used or stored in the State of Alabama; to provide for the
issuance by the Commissioner of Agriculture and Industries of
permits for selling, offering for sale, storing, or using such
petroleum products and to require the making of applications
for such permits and payment of a permit fee; to authorize the
Board of Agriculture and Industries to establish minimum
standards for such petroleum products; to require compliance
with such standards; to provide for enforcement of this act,
including provisions for maintenance of records and for
labeling, sampling and testing such products, provisions
prohibiting adulteration thereof, and provisions for penalties
for violation of this act; to prohibit the sale, offering for sale,
storage or use in this State of petroleum products not meeting
the said standards; to impose an inspection fee in respect of
each such petroleum product; to provide for the disposition of
such inspection fees and any penalties collected under this act;
to provide that violation of this act constitutes a misdemeanor;
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and to repeal Article 21 of Chapter 1 of Title 2 of the Code of
Alabama of 1940 and subdivision 2 of Article 26 of the said
Chapter 1.' "
Lane, 341 So. 2d 714 (emphasis omitted). The act also provided that the
first $55,000 of the monthly proceeds from the inspection fee would be
disbursed to an agricultural fund and that the remainder would be
disbursed to a road and bridge fund. Certain oil companies sued the
Commissioner of Agriculture and Industries, seeking a judgment declaring
that the act violated the single-subject rule of § 45. The trial court in
Lane entered a judgment in favor of the oil companies, declaring that the
act violated § 45 because, the court determined,
"while [the act] described in its title as providing for
'inspection fees,' [it] is in fact a revenue-producing tax
measure because the revenue generated far exceeds what is
necessary to administer the inspection program and the excess
revenue was, by a subsequent act, pledged for payment of
bonds issued by the intervenor, Alabama Highway Authority,
to provide funds for highway construction."
Lane, 341 So. 2d at 714-15. In reversing the trial court's judgment
declaring that the act violated § 45, this Court explained:
"We hold that the act does not contain more than one
subject. The one subject is the inspection program. The levying
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and disposition of inspection fees is part and parcel of the
inspection program. ...
"Furthermore, an act does not contain more than one
subject merely because it provides for more than one use of the
revenue collected under the act. Opinion of the Justices [No.
167], 270 Ala. 38, 42, 115 So. 2d 464 (1959). To uphold the trial
court's judgment would unduly handicap the legislature in the
exercise of its legitimate prerogatives and would not serve the
purposes of § 45 in our judgment. Opinion of the Justices [No.
174], 275 Ala. 254, 154 So. 2d 12 (1963)."
341 So. 2d at 715.
Relying on Nachman, the animal shelter contends that the
disbursements of the tobacco-tax proceeds set out in Act No. 2018-432
constitute earmarking of funds for specific purposes to be expended or
appropriated by the county commission. The animal shelter and amici
curiae contend that this Court in Clay County, discussed infra, incorrectly
determined that disbursements set out in Act No. 2017-65 were
appropriations for purposes of § 73 of the Constitution, and they invite
this Court to reconsider and overrule that decision. In Nachman, a 1935
act was challenged as violating the single-subject rule. The title of the act
provided that the legislation was " '[a]n Act to amend an Act entitled "An
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Act to provide for the general revenue of the State of Alabama, approved
July 10, 1935," ...' " Nachman, 233 Ala. at 631, 173 So. at 27. The original
act imposed a license or privilege tax on certain commercial operators, and
the amendatory act provided that the revenue collected would be
" 'covered into the State Treasury and become a part of the Alabama
Special Educational Trust Fund.' " 233 Ala. at 635, 173 So. at 31. The
appellants in Nachman argued that the amendatory act violated the
single-subject rule of § 45 because it contained two distinct objectives
consisting of a revenue measure and an appropriation for a special
purpose. The Court first concluded that the challenged provisions of the
amendatory act did not constitute an appropriation for purposes of § 71 of
the constitution and that the disbursement set out in the act, instead,
constituted earmarking. The Court stated:
"[T]he act does not undertake to make any appropriation
within the meaning of section 71 of the Constitution. It is
undoubtedly within the competence of the Legislature in
levying a tax to provide, in the same bill, into what fund of the
State the tax money when collected shall be paid, whether into
the general fund, or into any special fund. It is but earmarking
(Webster's New International Dictionary, p. 808; 19 Corpus
Juris, p. 852, note 68; 14 Cyc. p. 1131, note 72; 3 Words and
23
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Phrases, Third Series, p. 113; 17 Am. Digest [Cent. Ed.] page
1704; Bouv. Law Dict. [Rawle's Third Rev.] p. 964) the fund,
thereafter to be expended, on due appropriation, for the
purposes for which the tax was levied and collected. To provide
that certain funds derived from particular sources shall be
paid and used for designated purposes of government is in no
sense an appropriation as contemplated by section 71 of the
Constitution. We do not think there is any merit in either of
these two insistences of the appellants. It is our opinion that
the bill deals with but one subject."
233 Ala. at 634, 173 So. at 30. The Court further noted that, in Harris,
supra, it had committed to the rule that legislation providing for or
regulating revenue laws, or amendments thereto, encompass a single
subject that may be so expressed in the title of the legislation. Id. The
Court in Nachman, thus, concluded that the amendatory act contained one
subject and did not violate the single-subject rule.
The county commission contends that Act No. 2018-432 violates the
single-subject rule because it reduces the amount of preexisting earmarks
disbursed to a special fund managed by the county commission relating to
water feeder lines and then appropriates the corresponding amount to the
animal shelter. It contends that, because Act No. 2018-432 repeals an
earmark and also makes an appropriation of the previously earmarked
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funds, it contains more than one subject and violates § 45. The county
commission relies on this Court's decision in Childree v. Hubbert, 524 So.
2d 336 (Ala. 1988), in support of this proposition. Before enacting the
legislation at issue in Childree, the legislature had considered proposed
legislation pertaining to appropriations for education, including for
elementary and secondary schools; for junior and technical colleges; for
colleges and universities; for various other state agencies; and for entities
that were not state agencies but some of which, at least arguably, served
educational purposes. The legislature sought an advisory opinion from
the members of this Court as to whether the proposed education-
appropriation bill satisfied the § 45 single-subject rule. All nine Justices
opined that the proposed education-appropriation bill satisfied the
single-subject rule because the subject of public education had historically
been treated comprehensively in such appropriation bills. Opinion of the
Justices No. 323, 512 So. 2d 72 (Ala. 1987). The Opinion of the Justices
No. 323 stated that no appropriations could be made in the bill to
institutions not controlled by the State. The Justices also expressed
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reservations as to appropriations to State agencies that were not obviously
educational in nature. After this Court issued Opinion of the Justices No.
323, the legislature removed a number of appropriations from the
education-appropriation bill and added them to the general appropriation
bill, which eventually became Act No. 87-715, Ala. Acts 1987. Act No. 87-
715 directed that appropriations be made from the Alabama Special
Education Trust Fund ("ASETF") to various State entities. An action was
brought challenging the constitutionality of Act No. 87-715. The trial court
in Childree entered a judgment declaring Act No. 87-715 unconstitutional
insofar as the act appropriated funds from the ASETF to various State
agencies. In holding that any act appropriating ASETF funds other than
as specified in the legislation creating the ASETF would violate the single-
subject rule of § 45, this Court stated:
"[T]he removal or disregard of earmarking is not a matter
properly to be included in an appropriation bill. Presumably,
the earmarking could be removed in a proper single-subject
bill or in a properly constituted revenue bill, but until such an
action is taken, no appropriation bill can appropriate such
funds other than as they were earmarked.
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"The point that earmarking cannot be repealed by an
appropriation bill becomes even clearer when considered in
light of the fact that the earmarking provisions are now
substantive parts of the Code. See, e.g., § 40-1-31[, Ala. Code
1975]. Therefore, disregard of earmarking would violate the
Code, and repeal of earmarking would amend the Code. For
the legislature to either disregard or repeal earmarking in an
appropriation bill would violate § 71 or § 45, for the same
reasons as discussed above regarding revenue bills."
Childree, 524 So. 2d at 341.
The county commission also contends that, in violation of the single-
subject rule, Act No. 2018-432 purports to be amendatory legislation but,
in effect, constitutes an appropriation to the animal shelter and that the
act simultaneously repeals earmarks of funds to be disbursed to the
county commission for further disbursement to water districts in Clay
County. The county commission further contends that Act No. 2018-432
appropriates funds to multiple non-State entities, including the animal
shelter, and that the appropriations to those entities are made for
different purposes. The county commission asserts that Clay County
controls and that, pursuant to that decision, this Court should conclude
that the disbursement to the animal shelter ordered in Act No. 2018-432
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constitutes an appropriation. As noted above, in analyzing whether Act
No. 2017-65, the predecessor to Act No. 2018-432, violated § 73 of the
constitution, this Court in Clay County concluded that the Act No. 2017-
65 included an appropriation to the animal shelter. This Court stated as
follows concerning the term "appropriation":
"At the time § 73 was adopted as part of the Alabama
Constitution in 1901, Black's Law Dictionary defined
'appropriation' as:
" 'The act of appropriating or setting apart;
prescribing the destination of a thing; designating
the use or application of a fund.
" 'In public law. The act by which the
legislative department of government designates a
particular fund, or sets apart a specified portion of
the public revenue or the money in the public
treasury, to be applied to some general object of
governmental expenditure, (as the civil service list,
etc.,) or to some individual purchase or expense.'
Black's Law Dictionary 82 (1st ed. 1891)(emphasis added).
"The relevant language of Act No. 2017-65 provides that
Clay County's tobacco-tax proceeds 'shall be distributed to the
Clay County General Fund to be expended as follows' and
directs that 18% of the proceeds be paid to the animal shelter.
' "Words used in a statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where plain
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language is used a court is bound to interpret that language to
mean exactly what it says." ' Blue Cross & Blue Shield of
Alabama, Inc. v. Nielsen, 714 So. 2d 293, 296 (Ala.
1998)(quoting IMED Corp. v. Systems Eng'g Assocs. Corp., 602
So. 2d 344, 346 (Ala. 1992)).
" 'Distribute' is defined as: '1. To apportion; to divide
among several. 2. To arrange by class or order. 3. To deliver.
4. To spread out, to disburse.' Black's Law Dictionary 576
(10th ed. 2014). 'Expenditure' is defined as: 'The act or process
of spending or using money, time, energy, etc.; esp. the
disbursement of funds.' Black's Law Dictionary 698 (10th ed.
2014). The plain meaning of the relevant language used in Act
No. 2017-65 reflects the legislature's intent to distribute, or
deliver, 98% of Clay County's tobacco-tax proceeds from the
State Department of Revenue to the Clay County General
Fund. Act No. 2017-65 then sets apart a specified portion of
the public revenue or the money in the public treasury,
specifically 18%, to be applied to a particular expenditure or
disbursement, i.e., a payment to the animal shelter. Thus, the
plain meaning of the relevant language in Act No. 2017-65
reflects an appropriation to the animal shelter."
Clay County, 283 So. 3d at 1230-31. This Court concluded that "the
requirement in Act No. 2017-65 that 18% of Clay County's tobacco-tax
proceeds be disbursed to the animal shelter constitutes an appropriation
within the meaning of § 73. Because Act No. 2017-65 was not approved by
a vote of two-thirds of all the members elected to each house, that portion
is, therefore, void." 283 So. 3d at 1234.
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Act No. 2018-432 makes two changes to § 45-14-244.07 regarding the
percentage of tobacco-tax proceeds to be disbursed to the animal shelter
and to a special fund of the county commission. Specifically, Act No.
2018-432 increases the amount of tobacco-tax proceeds to be disbursed to
the animal shelter from 18% to 20% of tobacco-tax proceeds and decreases
the amount of tobacco-tax proceeds to be disbursed to the county
commission for water feeder lines from 15% to 13% of the tobacco-tax
proceeds. Act No. 2018-432 modifies only the disbursement of tobacco-tax
proceeds applicable to Clay County, but, unlike the general appropriation
bill at issue in Childree, which affected numerous existing statutes and
placed limitations on the use of revenue streams for educational
objectives, Act No. 2018-432 does not impact any other earmarks set forth
in other state laws. Moreover, the present case is distinguishable from
Clay County, in which this Court concluded that the pertinent language
of Act No. 2017-65 expending funds to a non-State entity constituted an
"appropriation" within the meaning of § 73. Clay County did not involve
application of the single-subject rule under § 45. We, therefore, decline to
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apply the reasoning from Clay County to the present case, and we also
decline the invitation of the animal shelter and amici curiae to overrule
that decision.
Rather, Act No. 2018-432 is akin to the amendatory acts at issue in
Harris and Nachman, because it amends a revenue law, i.e., Act No.
2017-65, to adjust the amount of specific disbursements. Consistent with
this Court's stated commitment in those cases that the amendment of a
revenue law is a single subject, we conclude that Act No. 2018-432
contains a single subject, i.e. the disbursement of tobacco-tax proceeds in
Clay County, and that all the provisions of the act are "part and parcel"
of that one subject. Lane, 341 So. 2d at 715.
In addition, Act No. 2018-432 unequivocally states within its title
that its purpose is: "Relating to Clay County ... to further provide for the
distribution of the local tobacco tax." This title is similar to the titles in
the amendatory acts that this Court determined to be valid under § 45 in
Nachman and Harris. See Harris, 228 Ala. at 102, 151 So. at 860
(concluding that the title including the words " 'to further provide for the
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revenue of the State of Alabama' " clearly expressed the subject of the
amendatory act) and Nachman, 233 Ala. at 631, 173 So. at 27(concluding
that the title of the amendatory act indicating that the act " 'provide[d] for
the general revenue of the State' " was sufficient for purposes of § 45). As
this Court has stated, "[t]he title need not be an index or catalog of every
power bestowed in the act, nor of every effect of the act." Lane, 341 So. 2d
at 715 (citing Opinion of the Justices No. 138, 262 Ala. 345, 81 So. 2d 277
(1955)). Thus, Act No. 2018-432 satisfies the two-part test for
establishing whether legislation complies with § 45, see Bagby Elevator
& Elec., supra, and the act fulfills the above-stated objectives of the single-
subject rule.
The animal shelter also contends that the retroactivity clause of Act
No. 2018-432 is also valid. In declaring the act to be unconstitutional,
however, the trial court rendered no decision on the issue of retroactivity.
As this Court has stated, "it is familiar law that an adverse ruling below
is a prerequisite to appellate review." CSX Transp., Inc. v. Day, 613 So. 2d
32
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883, 884 (Ala. 1993). Because the trial court has not decided that issue,
this Court will not address it.
Conclusion
We reverse the trial court's judgment declaring Act No. 2018-432 to
be unconstitutional on the basis that it violates § 45, and we remand the
cause.
REVERSED AND REMANDED.
Wise and Mitchell, JJ., concur.
Parker, C.J., concurs specially.
Shaw and Bryan, JJ., concur in the result.
Bolin, Sellers, and Mendheim, JJ., dissent.
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PARKER, Chief Justice (concurring specially).
While concurring in the main opinion, I write separately in the hope
of shedding light on this Court's cases applying the single-subject rule to
fiscal legislation. By surveying the history of our precedent in this area,
I believe that the analytical quandary that is manifest in today's case will
become more obvious, and the path forward clearer.
The single-subject rule is contained in §§ 45 and 71 of our State
constitution. Section 45 expresses the rule in its application to legislation
in general: "Each law shall contain but one subject, which shall be clearly
expressed in its title, except general appropriation bills, general revenue
bills, and bills adopting a code, digest, or revision of statutes ...." Art. IV,
§ 45, Ala. Const. 1901 (Off. Recomp.). Section 71 articulates the rule in its
specific application to appropriation bills: "The general appropriation bill
shall embrace nothing but appropriations for the ordinary expenses of the
executive, legislative, and judicial departments of the state, for interest
on the public debt, and for the public schools. ... All other appropriations
shall be made by separate bills, each embracing but one subject." Art. IV,
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§ 71, Ala. Const. 1901 (Off. Recomp.). These provisions in the 1901
Constitution were carried forward substantially verbatim from the 1875
Constitution. See Art. IV, §§ 2, 32, Ala. Const. 1875; Opinion of Justices
No. 323, 512 So. 2d 72, 75 (Ala. 1987). The substance of the single-subject
rule traces back to the 1865 Constitution. See Art. IV, § 2, Ala. Const.
1865.
For the first few decades of the rule's existence, this Court seems to
have understood its purpose and application with relative consistency. In
1883, Justice George Washington Stone explained "[t]he abuses which
called the [single-subject] provision into existence." Ballentyne v.
Wickersham, 75 Ala. 533, 535 (1883). Writing for the Court, he described
how the rule was designed to correct the abuse of "logrolling":
"Each subject introduced before the legislative department
shall be considered and voted on singly, without associating
with it any other measure to give it strength. Experience had
shown that measures, having no common purpose, and each
wanting sufficient support on its own merits to secure its
enactment, have been carried successfully through legislative
bodies, and become laws, when neither measure could
command the approval of a majority of that body."
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Id. at 535-36. Justice Stone cautioned, however, that the rule's
"requirements are not to be exactingly enforced, or in such manner as to
cripple legislation." Id. at 536. Rather, the concept of a single "subject"
must be understood broadly:
"[W]hen the subject is expressed in general terms, every thing
which is necessary to make a complete enactment in regard to
it, or which results as a complement of the thought contained
in the general expression, is included in, and authorized by it.
... 'The "subject" ... may be as broad and comprehensive as the
legislature may choose to make it. It may include innumerable
minor subjects, provided all these minor subjects are capable
of being so combined as to form only one grand and
comprehensive subject ....' "
Id. at 536-37 (quoting Division of Howard Co., 15 Kan. 194, 214-15 (1875)).
In 1898, this Court expanded its discussion to recognize three
manifest purposes of the single-subject rule: (1) to prevent logrolling and
"hodgepodge" bills, (2) to prevent surprise to the Legislature caused by
hiding provisions in bills without fair notice in the bills' titles, and (3) to
apprise citizens of the subjects of legislation being considered. Lindsay v.
United States Sav. & Loan Ass'n, 120 Ala. 156, 172, 24 So. 171, 176
(1898). The Court described "hodgepodge" as "the inclusion in one act of
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matters or subjects 'of a very heterogeneous nature,' ... which may mislead
and surprise the good faith of the law-making body." 120 Ala. at 173, 24
So. at 176. And the Court reiterated the concern about logrolling --
"legislation ... intended to enlist varied, and, it may be, hostile, interests,
in support of the proposed act." Id.
Importantly, in Lindsay the Court distinguished between the two
prongs of the single-subject rule that are recognized in today's main
opinion: first, a bill must contain only one "subject"; second, that subject
must be "clearly expressed in [the] title" of the bill. Id. ("The unity of
subject is an indispensable element of legislative acts; but it is not the
only element; the subject must be 'clearly expressed in its title.' "). The
Court expressly connected the "subject" prong to the first purpose of the
rule, preventing logrolling and hodgepodge. In contrast, the Court
connected the "title" prong to the second and third purposes, providing
notice to the Legislature and citizens. Id. This bifurcation of the purposes
makes sense, because the requirement of a single subject is not primarily
designed to provide notice, whereas the requirement that the title clearly
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express the bill's subject is not primarily designed to thwart the ills of
logrolling and hodgepodge. (Here, because I am concerned only with the
subject prong, I will focus on this prong's purpose of preventing those two
ills.)
In 1909, the Court reiterated its concern to avoid overly restrictive
application of the single-subject rule and the competing concern about
logrolling:
"There was no design in this clause to embarrass legislation by
making laws unnecessarily restrictive in their scope and
operation, and thus multiplying their number; but the framers
of the Constitution meant to put an end to a species of vicious
legislation commonly termed 'logrolling,' and to require, in
every case, that the proposed measure shall stand upon its
own merits ...."
State ex rel. City of Birmingham v. Miller, 158 Ala. 59, 62, 48 So. 496, 497
(1909).
In 1933, this Court had an opportunity to apply the single-subject
rule to fiscal legislation. See Harris v. State ex rel. Williams, 228 Ala. 100,
151 So. 858 (1933). As alluded to by today's main opinion, the bill in
Harris primarily attempted to raise revenue and to prevent motor vehicles
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from escaping taxation, but it also created a position of deputy tax
assessor to assess all personal property that had escaped taxation. 228
Ala. at 102, 104, 151 So. at 860-61. The Court again emphasized the
breadth allowed in a single subject: "The general rule is that generality or
comprehensiveness of the subject is not a violation of section 45, and that
a broad, comprehensive subject justifies the inclusion of any matter not
incongruous or unconnected with the subject ...." 228 Ala. at 103, 151 So.
at 860. Because both parts of the bill were "for the purpose of further
providing for the revenue of the state ... or to amend the state's revenue
law," the Court held that they were part of a single subject. 228 Ala. at
104, 15 So. at 861. Thus, up through the early 1930s, this Court seems to
have taken a fairly straightforward course in its application of the single-
subject rule.
Then came Nachman v. State Tax Commission, 233 Ala. 628, 173 So.
25 (1937). As noted by today's main opinion, the bill in Nachman provided
for a new revenue source -- a business-license tax -- and also provided for
distribution of that revenue partly to the Alabama Special Education
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Trust Fund and partly to the State General Fund to replace certain other
revenues. 233 Ala. at 628-29, 631, 633, 173 So. at 27, 29. The plaintiffs
argued that the bill violated the single-subject rule because it both raised
revenue and appropriated that revenue to specific purposes. In particular,
the plaintiffs contended that § 45's creation of separate exceptions from
the single-subject rule for "general revenue bills" and "general
appropriation bills" meant that revenue and appropriation were separate
subjects for purposes of the rule. The plaintiffs reasoned that revenue was
a burden, whereas appropriation was a benefit. 233 Ala. at 634, 173 So.
at 30.
I pause here to interject what I believe should have been this Court's
response to that argument. Consistent with the principles outlined in the
Court's previous cases, it would have been easy to simply hold that the
revenue-raising and revenue-spending parts of the bill came within the
broadly defined single subject of business-license-tax revenue. See Lane
v. Gurley Oil Co., 341 So. 2d 712 (1977) (illustrating this line of reasoning;
discussed below). Moreover, the plaintiffs' reasoning based on § 45's
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separate exceptions for general revenue bills and general appropriation
bills was clearly fallacious. The fact that § 45 lists those types of bills as
separate exceptions to the single-subject rule has no logical bearing on
whether revenue and appropriation are different subjects for purposes of
bills to which the rule does apply. Further, nothing about the single-
subject rule forbids including "burdens" and "benefits" in the same bill, if
they are germane to the same subject. Had the Court stayed the course
and stuck with its previous approach of focusing on the purposes
underlying the single-subject rule and the principles of its application, the
current quandaries within our jurisprudence applying the rule to fiscal
legislation would have been avoided.
Instead, the Nachman Court evaded the plaintiffs' argument with a
convoluted distinction that has haunted our single-subject jurisprudence
ever since: "appropriations" versus "earmarks." The Court explained the
distinction thus:
"[T]he [bill] does not undertake to make any appropriation
within the meaning of section 71 of the Constitution. It is
undoubtedly within the competence of the Legislature in
levying a tax to provide, in the same bill, into what fund of the
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State the tax money when collected shall be paid, whether into
the general fund, or into any special fund. It is but earmarking
the fund, thereafter to be expended, on due appropriation, for
the purposes for which the tax was levied and collected. To
provide that certain funds derived from particular sources
shall be paid and used for designated purposes of government
is in no sense an appropriation as contemplated by section 71
of the Constitution."
233 Ala. at 634, 173 So. at 30 (internal citations omitted). As I will show,
that seemingly simple distinction was not so simple, and it eventually has
led to much head-scratching by the bench and bar.
Twenty-five years after Nachman, the Court had its next major
opportunity to apply the single-subject rule to fiscal legislation. The
Governor requested the opinion of the Justices on the constitutionality of
a bill that created a beer tax and designated the proceeds to pay principal
and interest on certain public bonds that were issued for building and
equipping educational institutions. Opinion of Justices No. 174, 275 Ala.
254, 255, 154 So. 2d 12, 13-14 (1963). The title of the bill described its
purpose as including " '[t]o raise revenue by levying a privilege or excise
tax [on beer] ...; to provide for the collection and distribution of the
proceeds of said tax.' " 275 Ala. at 256, 154 So. 2d at 15. The Justices
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opined that the bill did not violate the subject prong of the rule, relying on
the Court's prior broad understanding of "subject":
"The inhibitions of Sections 45 and 71 ... that an act shall
have but one subject are met if the act has but one general
subject which is contained in its title. ...
" 'A statute has but one subject, no matter
how many different matters it relates to, if they are
all cognate, and but different branches of the same
subject.'
"A reading of the title of [the bill], and of the [bill] itself
discloses that the grand and comprehensive pattern of the
[bill] relates to but a single matter, and that all its provisions
are germane and cognate, or complementary to the idea
expressed in the title."
275 Ala. at 257, 154 So. 2d at 15-16 (quoting Yielding v. State ex rel.
Wilkinson, 232 Ala. 292, 296, 167 So. 580, 583 (1936)).
The Justices then made this curious statement:
"As stated in Nachman ...:
" 'To provide that certain funds derived from
particular sources shall be paid and used for
designated purposes of government is in no sense
an appropriation as contemplated by section 71 of
the Constitution.'
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"That is, merely because an act appropriates funds, it is not
thereby a general appropriation bill."
275 Ala. at 257, 154 So. 2d at 16. That is clearly not what the Nachman
Court meant by the quoted statement. Under Nachman's distinction, a
purely revenue/earmarking bill did not "appropriate funds"; and under §§
45 and 71, a "general appropriation bill" was a different creature
altogether, not subject to the single-subject rule at all. Already,
Nachman's language and logic were proving hard to follow.
In 1977, a similar combination revenue/spending bill was examined
by this Court in Lane v. Gurley Oil Co., 341 So. 2d 712 (1977), discussed
in today's main opinion. The bill in Lane provided for a program of
government inspection of petroleum products, including inspection fees,
but the revenue generated far exceeded the cost of the program. Id. at 714-
15. A later act allocated the excess revenue to pay on highway-
construction bonds. Id. The plaintiffs argued that the bill in question
contained two subjects: the inspection program and funding of highways.
Id. at 715. The Court rejected that argument, reasoning that the bill's
single subject was the inspection program, that the fees were part of that
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program, and that the bill properly provided for multiple uses of the
resulting revenue. Id.3 Notably, the Court echoed its earlier emphasis on
the legislative leeway inherent in the subject prong: to hold that the bill
violated the single-subject rule "would unduly handicap the legislature in
the exercise of its legitimate prerogatives and would not serve the
purposes of § 45." Id. at 715.
Ten years later, this Court employed what I view as a correct
method of analysis of a fiscal bill under the single-subject rule. The State
Senate had asked the Justices' opinion on an education appropriations
bill. Opinion of Justices No. 323, 512 So. 2d 72, 73 (Ala. 1987). The bill
provided money for various public educational institutions, other State
agencies, and non-State entities. Id. at 73, 75. Before determining whether
all those provisions came within a single subject, the Justices surveyed
the history of education-funding bills in Alabama since the Constitution
of 1875. Id. at 75-77. From that survey, the Justices determined that
3It is not clear why the Court treated the separate inspection-
program and revenue-spending bills as one bill.
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public-education appropriations had been treated as a single subject for
about 80 years. Id. at 77. However, the Justices opined that
appropriations to non-State entities had not historically been understood
as coming within that subject, so they could not be included in the bill. Id.
at 77-78. I believe that Opinion No. 323's focus on the history of the
particular type of bill illustrates one aspect of how a court ought to
analyze whether a bill violates the single-subject rule. The fact that a type
of bill has or has not historically included the challenged content is
relevant to whether the bill meets or thwarts the subject prong's concerns
about logrolling and hodgepodge.
Nevertheless, after that five-decade interlude of generally well-
reasoned decisions, the seed planted in Nachman finally bore its odious
fruit in Childree v. Hubbert, 524 So. 2d 336 (Ala. 1988). There, the
Legislature passed a general appropriation bill that included
appropriations from the Alabama Special Education Trust Fund to various
State agencies. Id. at 337-38. This Court held that statutes had designated
the money in the Trust Fund as exclusively for educational purposes. Id.
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at 339-41. And, the Court noted, that restriction had been generally
imposed by revenue bills. Id. at 340. Enter Nachman. After recounting
Nachman's appropriations-versus-earmarks distinction, the Court
proceeded to extend Nachman's suspect logic even further:
"If earmarking is not appropriating, but rather a matter
properly included in a revenue bill, the converse is also true:
the removal or disregard of earmarking is not a matter
properly to be included in an appropriation bill. ...
"... For the legislature to either disregard or repeal
earmarking in an appropriation bill would violate § 71 or § 45,
for the same reasons as discussed above regarding revenue
bills.
"Thus, any appropriation bill appropriating [Trust Fund]
funds other than as specified in the acts creating the [Trust
Fund] and in the Code would violate § 71 or § 45 of the
Constitution."
Id. at 341. With this language, the implications of Nachman became
evident. Revenue and appropriation were separate subjects, and
earmarking was a subset of revenue. Thus, earmarking (or un-
earmarking) and appropriation (or un-appropriation) could not be
combined in one bill, whether a revenue bill or an appropriation bill.
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Hence the problem in today's case, which is aptly highlighted by the
dissent: If the allocation to Clay County Animal Shelter, Inc., is an
"appropriation," as we held in an earlier related case, how can that
allocation be included in a bill that partly un-earmarks money that was
designated for a special fund overseen by the County Commission, without
violating the single-subject rule? The main opinion resolves the problem
for the moment by leaving open the possibility that the allocation to the
animal shelter is actually an earmark for purposes of the single-subject
rule. In other words, maybe "appropriation" means something different
under § 73 from what it means under §§ 45 and 71. But the underlying
quandary remains as long as the single-subject rule is seen as
hermetically sealing "appropriations" apart from "earmarks."
Respectfully, the problem is with Nachman and Childree.
Specifically, Nachman set us on the wrong path, fashioning its
unnecessary appropriations/earmarks distinction solely in response to a
party's illogical contention. Then, Childree took our jurisprudence even
further afield from the purpose of the subject prong of the single-subject
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rule. As I have explained above, that purpose is to avoid logrolling and
hodgepodge legislation. And nothing about combining revenue and
appropriations in a bill -- or "earmarks" and appropriations, or "un-
earmarks" and un-appropriations -- necessarily contravenes that purpose.
For example, a bill could provide for a tax on sales of audiobooks while
also providing that the first $10 million in revenue collected will be paid
to the public-library systems of each county in proportion to population.
The single subject could properly be characterized as simply an audiobook
sales tax and the allocation of the resulting revenue. Cf. Lane, supra. The
technicality that the revenue would be designated for particular
recipients, rather than deposited in a particular "fund," would in no way
implicate the subject prong's concern about logrolling and hodgepodge.
Furthermore,
although
Nachman's
appropriations/earmarks
distinction might have seemed straightforward to apply in 1937, the
complexities of modern fiscal legislation have rendered it anything but.
Today, after tax revenue is collected, it often flows through multiple steps
of distribution, and it is difficult to say at what point in that flow
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"earmarking" ends and "appropriation" begins. For example, one approach
is to distribute part of a particular tax's revenue first to the Alabama
Department of Revenue, after which part of the revenue is distributed to
counties or municipalities, after which those local governments distribute
part of it to particular governmental or nongovernmental purposes and
recipients. Some of those distributions may be on a percentage basis or in
a particular dollar amount, and some of them may be conditioned on
availability of funds or tied to other factors outside the text of the bill. See,
e.g., Ala. Code 1975, § 45-6-242.20 (Bullock County sales tax), § 45-10-
244.37 (Cherokee County sales tax), § 45-44-244.40 (Macon County
occupational tax), § 45-3-244.06 (similar Barbour County tobacco tax); cf.
§ 45-32-242.01 (allocating percentages of Greene County ad valorem tax
directly to governmental agencies and nongovernmental entities); § 45-35-
243 (allocating Houston County lodging tax similarly); § 45-6-241.40
(Bullock County tobacco tax); § 45-30-243 (Franklin County proceeds of
oil-and-gas-severance tax).
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Indeed, the bill in this case is a prime example. See § 45-14-244.07
(allocating Clay County tobacco tax first to Department of Revenue, then
to
county
general
fund,
then
to
certain
governmental
and
nongovernmental entities, with some of those ultimate distributions being
conditional). Nachman's simplistic definitions of "earmarking" --
"provid[ing] ... into what fund of the State the tax money when collected
shall be paid" and "provid[ing] that certain funds derived from particular
sources shall be paid and used for designated purposes of government,"
233 Ala. at 634, 173 So. at 30 -- do not tell us where to draw the line in the
flow of distribution.
The amicus brief of Senator Jimmy Holley, as Chair of the
Legislature's Legislative Council, perhaps comes closest to providing a
workable dividing line: an "appropriation" is a distribution "from the
State [t]reasury ... in a specific sum certain amount." Holley amicus brief,
at p. 24. Presumably everything before that in the flow of distribution
would be an earmark. Yet even that definition falters under close scrutiny,
if one assumes that a correct definition must square with not only
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Nachman and Childree but also the rest of our precedent. For example,
Lane held that a revenue bill that distributed the first $55,000 in monthly
proceeds to an agricultural fund did not violate the single-subject rule,
implicitly indicating that that sum-certain amount was an earmark rather
than an appropriation. 341 So. 2d at 715. Admittedly, it could be argued
that that monthly distribution was not a sum certain because it was
conditional on $55,000 being collected. But many of the distributions in
the Legislature's annual general appropriation bill are conditional. See
Albert P. Brewer, Alabama State Budgets and Appropriations, 55 Ala.
Law. 344, 346 & n.47 (1994). So the conditional nature of a distribution
does not prevent it from being a sum certain and thus an appropriation
under the amicus brief's definition. Similarly, in Opinion No. 174, the
Justices indicated that a revenue bill that distributed money "not
exceeding $15,000,000" to pay principal and interest on bonds did not
violate the single-subject rule under Nachman, implying that the
distribution was an earmark. 275 Ala. at 255, 257, 154 So. 2d at 13-16.
That distribution could likewise be reasonably seen as a sum certain of
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$15 million, conditional on the principal and interest equaling that
amount. I point out these problems not to denigrate the amicus brief's
valiant effort to distill a definition, but to emphasize my doubt that a
workable definition can be achieved.
But I believe that a more fundamental solution to the current
quandary under the single-subject rule is quite achievable. It simply
requires us to return to this Court's first principles in this area. First, we
should be careful not to conflate the subject prong and the title prong in
our analysis; this Court has at times seemed to lose sight of this
distinction, see, e.g., Harris, supra; Opinion No. 174, supra; Opinion No.
323, supra. Second, we should discard Nachman/Childree's distinction
between appropriations and earmarks, for the reasons I have explained
above. Third, we should refocus on the purpose of the subject prong --
preventing logrolling and hodgepodge legislation. Fourth, we should
constantly bear in mind this Court's commitment that the term "subject"
must be understood broadly and in a manner that does not unnecessarily
hamstring or cripple the Legislature. Fifth, we should take full advantage
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of factually similar precedents in the many other states that have single-
subject rules.4 Although this Court consulted other states' jurisprudence
in some of our early cases, see, e.g., Ballentyne, supra; Miller, supra, we
have seemingly omitted to do so in the more recent cases, see, e.g.,
Nachman, supra; Opinion No. 174, supra; Lane, supra; Childree, supra.
Finally, we should approach single-subject analysis with a healthy
dose of realism, recognizing that the rule is a blunt instrument. The
problems of logrolling and hodgepodge are generalized ones, not limited
to any particular type or topic of legislation. Thus, the constitution's
solution -- the subject prong -- is necessarily also generalized. But that
means that, unlike other restrictions on legislation such as § 73's two-
thirds-vote requirement, the subject prong is incapable of laserlike
surgical precision. Our early, pre-Nachman cases reflected an
understanding of this inherent limitation of the single-subject rule and a
realistic appraisal of the power of the rule to curb legislative abuse. In
4See generally 1A Norman J. Singer & Shambie Singer, Statutes and
Statutory Construction § 17:1 (7th ed. 2009); 73 Am. Jur. 2d Statutes § 53
(2012); 82 C.J.S. Statutes § 248 (2009).
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essence, the rule is capable of invalidating only obvious departures. That
clear-headed outlook, stripped of artificial distinctions, is the one to which
we should return.
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BOLIN, Justice (dissenting).
In my opinion, Act No. 2018-432, Ala. Acts 2018, violates Article IV,
§ 45, Ala. Const. 1901 (Off. Recomp.), because it repeals the dedication of
funds to a special fund overseen by the Clay County Commission ("the
county commission") for disbursement to the local water districts while
simultaneously appropriating those funds to the Clay County Animal
Shelter, Inc. ("the animal shelter"). Therefore, I respectfully dissent from
the main opinion.
Section 45 provides in relevant part that "[e]ach law shall contain
but one subject, which shall be clearly expressed in its title, except general
appropriation bills, general revenue bills, and bills adopting a code, digest,
or revision of statutes." See also Art. IV, § 71, Ala. Const. 1901 (Off.
Recomp.), which provides in relevant part that "[a]ll ... appropriations
[other than general appropriations] shall be made by separate bills, each
embracing but one subject." The pertinent part of § 45 contains two
components: (1) it limits legislation to a single subject and (2) it requires
that this single subject be clearly expressed in the title of the legislation.
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Bagby Elevator & Elec. Co. v. McBride, 292 Ala. 191, 291 So. 2d 306
(1974). The county commission alleges that Act No. 2018-432 violates
§ 45, in part, because it amends preexisting earmarks of the county's
tobacco-tax proceeds and then appropriates the funds removed from one
of the earmarks to the animal shelter, which, it says, constitutes two
separate subjects.
The animal shelter, which I am sure is a very worthwhile charitable
organization, "urges" this Court to reconsider its holding in Clay County
Commission v. Clay County Animal Shelter, Inc., 283 So. 3d 1218 (Ala.
2019) ("Clay County"), that Act No. 2017-65, Ala. Acts 2017, the
predecessor act amended by Act No. 2018-432, was an appropriations act.
In Clay County, the plaintiffs contended that certain provisions of Act No.
2017-65 amounted to an appropriation of funds to a charitable
organization by the legislature, without a two-thirds vote of all the
members elected to each house approving it, and that, therefore, the
enactment of Act No. 2017-65 violated Article IV, § 73, Ala. Const. 1901
(Off. Recomp.). This Court agreed, holding that "[t]he plain meaning of
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the language in Act No. 2017-65 provides for an appropriation to the
animal shelter of 18% of Clay County's tobacco-tax proceeds" and that the
legislature's appropriation to the animal shelter had to receive " 'a vote of
two-thirds of all the members elected to each house' " to comply with § 73.
283 So. 3d at 1235.
Relying upon Nachman v. State Tax Commission, 233 Ala. 628, 173
So. 25 (1937), the animal shelter now argues, for the first time, that Act
No. 2018-432, which directs the distribution of the county tobacco-tax
proceeds to the county general fund for disbursement to more than one
entity, constitutes "earmarking" rather than appropriation. The animal
shelter contends that because Act No. 2018-432 provides for only
earmarks and does not contain any appropriations, it does not violate the
single-subject requirement of § 45. Not only is this argument being raised
for the first time on appeal, the animal shelter has heretofore contended
that Act No. 2018-432 provides an appropriation.5 " 'This Court cannot
5The plaintiffs below -- the county commission and several
individuals -- alleged in paragraph 39 of their amended complaint that
"[Act No. 2018-432] attempts to appropriate to the Animal Shelter twenty
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consider arguments raised for the first time on appeal; rather, our review
is restricted to the evidence and arguments considered by the trial court.' "
America's Home Place, Inc. v. Rampey, 166 So. 3d 655, 661 n.2 (Ala. 2014)
(quoting Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992)).
Accordingly, this Court cannot consider the animal shelter's argument
that Act No. 2018-432 provides for only earmarks and does not contain
any appropriations and, therefore does not violate the single-subject
requirement of § 45.
The animal shelter also argues that Act No. 2018-432 does not
violate § 45 because it has a single subject that is clearly expressed in its
title.
This Court has stated the following:
percent (20%) of the County's tobacco tax revenue." The animal shelter
answered paragraph 39 of the amended complaint by stating: "Admitted.
However, [Act No. 2018-432] speaks for itself." Further, the animal
shelter filed a supplemental memorandum in support of its Rule 12(c),
Ala. R. Civ. P., motion for a judgment on the pleadings in which it argued
that Act No. 2018-432 "does not contain any earmarks, only makes a
single new appropriations," that the act "makes a single new
appropriation, to the Shelter," and that "[t]he other appropriations
contained in [the act] are part of pre-existing law."
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"As the Court explained in Opinion of Justices No. 174, 275
Ala. 254, 154 So. 2d 12 (1963), an appropriations bill that is
not a general appropriations bill must meet the single-subject
requirement of § 71. If an appropriations bill complies with §
71 in having a single subject, then it necessarily complies with
that portion of § 45 mandating that each law contain but one
subject. Section 45 contains the additional requirement that
the subject of each law 'shall be clearly expressed in its title.' "
Magee v. Boyd, 175 So. 3d 79, 115-16 (Ala. 2015)(footnote omitted). See
also Bagby Elevator, supra, stating that the pertinent part of § 45 has
two components: (1) it limits legislation to a single subject and (2) it
requires that this single subject be clearly expressed in the title of the
legislation. The purpose of the single-subject requirement has been
explained in detail:
" ' "First, to prevent 'hodgepodge' or 'logrolling' legislation;
second, to prevent surprise or fraud upon the legislature by
means of provisions in bills of which the titles give no
intimation, and which might, therefore, be overlooked, and
carelessly and unintentionally adopted; and, third, to fairly
apprise the people, through such publication of legislative
proceedings as is usually made, of the subjects of legislation
that are being considered, in order that they may have the
opportunity of being heard thereon, by petition or otherwise,
if they shall so desire." Cooley, Const. Lim. 172. No one of
these purposes is of more or less importance than the other.
The mischief of hodgepodge legislation, -- the inclusion in one
act of matters or subjects "of a very heterogeneous nature,"
60
1190947
which may mislead, and surprise the good faith of the
law-making body; or logrolling legislation, intended to enlist
varied, and, it may be, hostile, interests, in support of the
proposed act, -- would have been avoided if the constitutional
limitation had gone no further than the requisition that "each
law shall contain but one subject." The unity of subject is an
indispensable element of legislative acts; but it is not the only
element; the subject must be "clearly expressed in its title."
The purpose of this requisition is, as expressed in the second
proposition of the exposition of Judge Cooley, "to prevent
surprise or fraud upon the legislature by means of provisions
in bills of which the title gives no intimation, and which might
therefore be overlooked, and carelessly and unintentionally
adopted." The third proposition must be deemed, and by all
authority is deemed, of equal importance, -- "to fairly apprise
the people, through such publication of legislative proceedings
as is usually made, of the subjects of legislation that are being
considered, in order that they may have opportunity of being
heard thereon, by petition or otherwise, if they so desire."
When there is a fair expression of the subject in the title, all
matters reasonably connected with it, and all proper agencies
or instrumentalities, or measures, which will or may facilitate
its accomplishment, are proper to be incorporated in the act,
and, as usually said, are cognate or germane to the title.' "
Magee, 175 So. 3d at 116 (quoting Lindsay v. United States Sav. & Loan
Ass'n, 120 Ala. 156, 172, 24 So. 171, 176 (1898)). " '[A] statute has but one
subject, no matter to how many different matters it relates if they are all
cognate, and but different branches of the same subject.' " Ex parte
Hilsabeck, 477 So. 2d 472, 475 (Ala. 1985) (quoting Knight v. West
61
1190947
Alabama Env't. Improvement Auth., 287 Ala. 15, 22, 246 So. 2d 903, 908
(1971)). Further,
" '[i]t is settled under our decisions that however
numerous the subjects stated in the title, and however
numerous the provisions in the body of the act may be, if they
can be by fair intendment considered as falling within the
subject-matter legislated upon in the act, or necessary as ends
and means to the attainment of such subject, the act does not
offend our constitutional provision that no law shall embrace
more than one subject, which must be expressed in its title.' "
Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 10, 18 So. 2d 810,
816 (1944)(quoting State v. Henry, 224 Ala. 224, 227, 139 So. 278, 281
(1931)).
Relying upon Lane v, Gurley Oil Co., 341 So. 2d 712 (Ala. 1977), the
animal shelter argues that Act No. 2018-432 does not contain more than
one subject merely because it provides for more than one use of the
revenue collected. The animal shelter contends that, because the tobacco-
tax proceeds are earmarked for several recipients on a percentage basis,
when the legislature enacted Act No. 2018-432 to amend Act No. 2017-65
to disburse 20% of the tobacco-tax proceeds, rather than 18%, to the
animal shelter, the legislature necessarily had to adjust another share and
62
1190947
did so by decreasing from 15% to 13% the share of tobacco-tax proceeds
to be disbursed to the county commission for further disbursement to the
water districts in Clay County for the purpose of installing feeder lines.
In Lane, this Court considered the constitutionality of Act No. 1971-1403,
Ala. Acts 1971. The title of Act No. 1971-1403 provided:
" 'To provide for inspection of certain petroleum products,
including those commonly known as gasoline, naphtha, diesel
fuel, kerosene and lubricating oil, that are sold, offered for
sale, used or stored in the State of Alabama; to provide for the
issuance by the Commissioner of Agriculture and Industries of
permits for selling, offering for sale, storing, or using such
petroleum products and to require the making of applications
for such permits and payment of a permit fee; to authorize the
Board of Agriculture and Industries to establish minimum
standards for such petroleum products; to require compliance
with such standards; to provide for enforcement of this act,
including provisions for maintenance of records and for
labeling, sampling and testing such products, provisions
prohibiting adulteration thereof, and provisions for penalties
for violation of this act; to prohibit the sale, offering for sale,
storage or use in this State of petroleum products not meeting
the said standards; to impose an inspection fee in respect of
each such petroleum product; to provide for the disposition of
such inspection fees and any penalties collected under this act;
to provide that violation of this act constitutes a misdemeanor;
and to repeal Article 21 of Chapter 1 of Title 2 of the Code of
Alabama of 1940 and subdivision 2 of Article 26 of the said
Chapter 1.' "
63
1190947
341 So. 2d at 714 (emphasis omitted). The act also provided that the first
$55,000 of the monthly proceeds from the inspection fee would be
disbursed to an agricultural fund and that the remainder would be
disbursed to a road and bridge fund.
Gurley Oil Company and Gurley Refining Company ("the oil
companies") sued the Commissioner of Agriculture and Industries,
seeking a judgment declaring that the act violated the single-subject
requirement of § 45. The trial court entered a judgment in favor of the oil
companies, declaring that the act violated § 45 because, the court
determined,
"while [the act] described in its title as providing for
'inspection fees,' [it] is in fact a revenue-producing tax
measure because the revenue generated far exceeds what is
necessary to administer the inspection program and the excess
revenue was, by a subsequent act, pledged for payment of
bonds issued by the intervenor, Alabama Highway Authority,
to provide funds for highway construction."
Lane, 341 So. 2d at 714-15.
The oil companies argued on appeal in support of the trial court's
judgment that the title of the act did not clearly express the subject of the
64
1190947
act and that the act actually contained two subjects, one relating to an
inspection program for petroleum products and the other relating to
funding of the state's highway-construction program. In reversing the
trial court's judgment, this Court explained:
"We hold that the act does not contain more than one
subject. The one subject is the inspection program. The levying
and disposition of inspection fees is part and parcel of the
inspection program. ...
"Furthermore, an act does not contain more than one
subject merely because it provides for more than one use of the
revenue collected under the act. Opinion of the Justices [No.
167], 270 Ala. 38, 42, 115 So.2d 464 (1959). To uphold the trial
court's judgment would unduly handicap the legislature in the
exercise of its legitimate prerogatives and would not serve the
purposes of § 45 in our judgment. Opinion of the Justices [No.
174], 275 Ala. 254, 154 So. 2d 12 (1963)."
341 So. 2d at 715.
The facts of Lane are clearly distinguishable from the facts of this
case, because the act at issue in Lane did not amend an existing earmark
of the revenue collected pursuant to the act that resulted in one entity
receiving less funding while simultaneously appropriating the funds
removed from that earmark to another entity, resulting in the latter
65
1190947
entity's receiving an increase in funding. Here, Act No. 2018-432
amended the earmark of a portion of the county tobacco-tax proceeds to
a special fund overseen by the county commission by decreasing from 15%
to 13% the share of tobacco-tax proceeds to be disbursed to that special
fund while simultaneously increasing from 18% to 20% the share of the
tobacco-tax proceeds to be disbursed to the animal shelter.
The county commission cites Childree v. Hubbert, 524 So. 2d 336
(Ala. 1988), in support of its contention that an act that repeals an
earmark and also makes an appropriation of the previously earmarked
funds contains more than one subject and violates § 45. Before enacting
the legislation at issue in Childree, the legislature had considered an
education appropriations bill that provided appropriations for elementary
and secondary schools; for junior and technical colleges; for colleges and
universities; for various other state agencies; and for entities that were
not state agencies but some of which, at least arguably, served educational
purposes. While the legislature was in session, it sought an advisory
opinion from the members of this Court as to whether the education-
66
1190947
appropriations bill satisfied the § 45 single-subject requirement. All nine
Justices opined that the education appropriations bill satisfied the single-
subject requirement of § 45 because the subject of public education had
historically been treated comprehensively in such appropriation bills.
Opinion of the Justices No. 323, 512 So. 2d 72 (Ala. 1987). Opinion of the
Justices No. 323 stated that no appropriations could be made in the bill
to institutions not controlled by the State. The opinion also expressed
reservations as to appropriations to State agencies not obviously
educational in nature.
After that opinion issued, the legislature removed a number of
appropriations from the education appropriations bill and added them to
the general appropriations bill that eventually became Act No. 87-715.
Act No. 87-715 directed that appropriations be made from the Alabama
Special Education Trust Fund ("ASETF") to various State entities. An
action was brought challenging the constitutionality of Act No. 87-715.
The trial court in Childree entered a judgment declaring Act No. 87-715
67
1190947
unconstitutional insofar as the act appropriated funds from the ASETF to
various State agencies.
In holding that any appropriations bill appropriating ASETF funds
other than as specified in the legislation creating the ASETF would violate
the single subject requirement of § 45, this Court stated:
"[T]he removal or disregard of earmarking is not a matter
properly to be included in an appropriation bill. Presumably,
the earmarking could be removed in a proper single-subject
bill or in a properly constituted revenue bill, but until such an
action is taken, no appropriation bill can appropriate such
funds other than as they were earmarked.
"The point that earmarking cannot be repealed by an
appropriation bill becomes even clearer when considered in
light of the fact that the earmarking provisions are now
substantive parts of the Code. See, e.g., § 40-1-31[, Ala. Code
1975]. Therefore, disregard of earmarking would violate the
Code, and repeal of earmarking would amend the Code. For
the legislature to either disregard or repeal earmarking in an
appropriation bill would violate § 71 or § 45, for the same
reasons as discussed above regarding revenue bills."
Childree, 524 So. 2d at 341. Based on this Court's reasoning in Childree,
because Act No. 2018-432, in part, repeals the dedication of funds to a
special fund overseen by the county commission for disbursement to the
local water districts while simultaneously appropriating those funds to the
68
1190947
animal shelter, I conclude that Act No. 2018-432 impermissibly contains
multiple subjects and violates the single-subject requirement of § 45.
Because I believe that Act No. 2018-432 violates § 45 for the reasons
expressed above, I respectfully dissent from the main opinion.
Mendheim, J., concurs.
69 | May 28, 2021 |
1dfaee8b-0016-44fd-b9a5-fc53523767a4 | Dale Fixler v. Three Pandas LLC., Reyna Garcia, and Luis Plata | N/A | 1190467 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190467
Dale Fixler v. Three Pandas LLC, Reyna Garcia, and Luis Plata (Appeal
from Shelby Circuit Court: CV-16-901045).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | May 14, 2021 |
7c1e41d2-4a2d-4ff8-9078-1b7e65cc157e | Karen Outlaw v. Edward P. Fendley and All Weather Roofing & Construction | N/A | 1190889 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190889
Karen Outlaw v. Edward P. Fendley and All Weather Roofing &
Construction (Appeal from Mobile Circuit Court: CV-99-873).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | May 14, 2021 |
32baee93-2fc8-4b84-b37c-2ef0be4efc52 | Ex parte Common Bond Title, LLC and Preferred Title Agency, Inc. | N/A | 1190768 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21,2021
1190768
Ex parte Common Bond Title, LLC and Preferred Title Agency, Inc. PETITION FOR
WRIT OF MANDAMUS: CIVIL (In re: James Snellgrove v. Common Bond Title,
LLC, et al.) (Houston Circuit Court: CV-17-900300).
ORDER
The petition for writ of mandamus in this cause is denied.
WISE, J. - Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur.
Witness my hand this 21st day of May, 2021.
/ra | May 21, 2021 |
7a834ec2-7bec-4d97-a51c-8dc7a1210662 | Ex parte Tilya Daise. | N/A | 1200188 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200188
Ex parte Tilya Daise. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Tilya Daise v. State of Alabama)
(Chambers Circuit Court: CC-14-519; Criminal Appeals :
CR-19-0004).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
64221acf-9540-467d-99be-f2554409719d | James D. Hughes v. United Joint Venture, a limited partnership | N/A | 1191076 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1191076
James D
. Hughes v. United Joint Venture, a limited partnership
(Appeal from Mobile Circuit Court: CV-02-3321).
CERTIFICATE OF JUDGMENT
W
HEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on May 14, 2021:
Application Overruled. No Opinion. Mendheim, J. -
Parker, C.J., and
Bolin, Shaw, and Bryan, JJ., concur. Mitchell, J., recuses himself.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on March 12, 2021:
Affirmed. No Opinion. Mendheim, J. -
Parker, C.J., and Bolin, Shaw, and
Bryan, JJ., concur. Mitchell, J., recuses himself.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
5a68916c-b26a-4553-b9d0-6ca93418a2a2 | Ex parte Abbott Laboratories and Abbott Laboratories, Inc. | N/A | 1191001 | Alabama | Alabama Supreme Court | REL: May 28, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1191001
____________________
Ex parte Abbott Laboratories and Abbott Laboratories, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Mobile County Board of Health
and Family Oriented Primary Health Care Clinic
v.
Mitchell "Chip" Fisher et al.)
(Mobile Circuit Court, CV-19-902806)
MENDHEIM, Justice.
1191001
Abbott Laboratories and Abbott Laboratories, Inc. (collectively
referred to as "Abbott"), petition this Court for a writ of mandamus
directing the Mobile Circuit Court to dismiss all claims asserted by the
Mobile County Board of Health and the Family Oriented Primary Health
Care Clinic (collectively referred to as "Mobile Health") against Abbott on
the basis that those claims are barred by the rule of repose or by the
applicable statute of limitations. We grant the petition and issue the writ.
I. Facts
Because this petition concerns a motion to dismiss under
Rule 12(b)(6), Ala. R. Civ. P., the facts in the complaint1 constitute the
only operative facts for our review of the petition. See, e.g., Ex parte
Alabama Dep't of Youth Servs., 880 So. 2d 393, 397 (Ala. 2003)
("Inasmuch as the issue before us is whether the trial court correctly
denied a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, '[t]his Court
must accept the allegations of the complaint as true.' " (quoting Creola
1Except when otherwise indicated, for purposes of this opinion, "the
complaint" includes both the original complaint filed on October 15, 2019,
and the first amended complaint filed on February 11, 2020.
2
1191001
Land Dev., Inc. v. Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala.
2002))).
The Mobile County Board of Health is the public health department
of Mobile County. The Family Oriented Primary Health Care Clinic is "a
partnership between Family Oriented Primary Health Care Governing
Council, Inc. and the Mobile County Health Department" that "provides
comprehensive primary care and preventive care, including health, oral
health, mental health, and substance abuse services to persons of all ages,
regardless of their ability to pay and regardless of their health insurance
status." Abbott Laboratories, Inc., is a subsidiary of Abbott Laboratories;
the principal place of business for both is Abbott Park, Illinois.
Mobile Health alleged that Abbott had participated in the marketing
of a specific prescription drug, OxyContin. OxyContin is
"the trade name for oxycodone hydrochloride controlled-release
tablets, an opioid analgesic drug. In 1995, the United States
Food and Drug Administration ('FDA') approved OxyContin for
the management of moderate to severe pain where use of an
opioid analgesic is appropriate for more than a few days.
"Oxycodone is a morphine-like drug that is highly
addictive and is rated as a Schedule II narcotic, a designation
given by the government that identifies a prescription
3
1191001
medication as having a great potential for abuse. A Schedule II
designation also means that the drug, while accepted for
medical use, has severe restrictions, and abuse of the drug has
a high potential to lead to severe psychological or physical
dependence.
"OxyContin is a patented timed-release formula that
releases the narcotic incrementally over 12 hours.[2] This
formulation distinguishes OxyContin from short-acting
medications that must be taken more frequently. Because of
the timed-release formulation, OxyContin contains more
oxycodone than short-acting opioids."
Howland v. Purdue Pharma L.P., 104 Ohio St. 3d 584, 584, 821 N.E.2d
141, 142-43 (2004).
OxyContin was developed and manufactured by Purdue Pharma
("Purdue").3 With respect to Purdue, the complaint alleged in part that,
"[i]n 2007, Purdue settled criminal and civil charges
against it for misbranding OxyContin and agreed to pay the
United States $635 million -- one of the largest settlements
with a drug company for marketing misconduct. In the same
2Mobile Health asserted in the complaint that the claimed 12-hour
time-release of OxyContin is false. It does agree, however, that
OxyContin contains more oxycodone than other opioids.
3Purdue includes a conglomerate of entities, namely Purdue Pharma,
L.P, Purdue Pharma, Inc., and The Purdue Frederick Company. The
complaint stated that Purdue was "not joined as a defendant in this action
due to the pendency of its bankruptcy filing in New York" but that it was
"fully involved in all of the misconduct alleged herein."
4
1191001
year, Purdue settled with 27 states for its Consumer
Protection Act violations regarding Purdue's extensive off-label
marketing of OxyContin and Purdue's failure to adequately
disclose abuse and diversion risks associated with the drug.
None of this stopped Purdue. In fact, Purdue continued to
create the false perception that opioids were safe and effective
for long-term use, even after being caught using unbranded
marketing methods to circumvent the system. In short,
Purdue paid the fine when caught and then continued business
as usual, deceptively marketing and selling billions of dollars
of opioids each year."
The complaint categorized Purdue as a "related entity" to "the
Marketing Defendants," one of which is Abbott. Mobile Health alleged
that, "[t]hrough a massive marketing campaign premised on false and
incomplete information, the Marketing Defendants engineered a dramatic
shift in how and when opioids are prescribed by the medical community
and used by patients." More specifically, Mobile Health alleged, "[t]he
Marketing Defendants relentlessly and methodically -- but untruthfully --
asserted that the risk of addiction was low when opioids were used to
treat chronic pain and overstated the benefits and trivialized the risk of
the long-term use of opioids." According to Mobile Health, "[t]he
Marketing Defendants' goal was simple: dramatically increase sales by
convincing doctors to prescribe opioids not only for the kind of severe pain
5
1191001
associated with cancer or short-term postoperative pain, but also for
common chronic pain, such as back pain and arthritis." Mobile Health
alleged that this marketing campaign "precipitated" an "opioid crisis" in
the United States, and specifically in Alabama, because it caused an
astronomical increase in the use of opioids by patients who quickly became
dependent upon the drugs. In support of this assertion, Mobile Health
cited a multitude of statistics in the complaint, including that "[t]he rate
of death from opioid overdose has quadrupled during the past 15 years in
the United States. Nonfatal opioid overdoses that require medical care in
a hospital or emergency department have increased by a factor of six in
the past 15 years."
With respect to Abbott's conduct, Mobile Health alleged:
"143. Abbott was primarily engaged in the promotion and
distribution of opioids nationally due to a co-promotional
agreement with Purdue. Pursuant to that agreement, between
1996 and 2006, Abbott actively promoted, marketed, and
distributed Purdue's opioid products as set forth above.
"144. Abbott, as part of the co-promotional agreement, helped
turn OxyContin into the largest selling opioid in the nation.
Under the co-promotional agreement with Purdue, the more
Abbott generated in sales, the higher the reward. Specifically,
Abbott received twenty-five to thirty percent (25-30%) of all
6
1191001
net sales for prescriptions written by doctors its sales force
called on. This agreement was in operation from 1996-2002,
following which Abbott continued to receive a residual
payment of six percent (6%) of net sales up through at least
2006.
"145. With Abbott's help, sales of OxyContin went from a mere
$49 million in its first full year on the market to $1.2 billion in
2002. Over the life of the co-promotional agreement, Purdue
paid Abbott nearly half a billion dollars."
(Emphasis added.)
Mobile Health asserted that it brought this action because of the
burdens it has had to bear as a result of the "opioid epidemic."
"36. Boards of health and their affiliated primary care
providers -- legally and morally -- are compelled to act and
treat patients with opioid- related conditions50 and, as a result,
are directly and monetarily damaged by the opioid epidemic.
In addition to the cost of the opioid drugs themselves, boards
of health and their affiliated primary care providers have
incurred and continue to incur millions of dollars in damages
for the costs of uncompensated care as a result of the unlawful
marketing, distribution, and sale of opioids. Boards of health
and their affiliated primary care providers directly and
monetarily bear the brunt of the opioid crisis.
"37. [Mobile Health is] struggling from the relentless and
crushing financial burdens caused by the epidemic of opioid
addiction.
"38. The effects of the opioid epidemic on boards of health and
their affiliated primary care providers may soon become even
7
1191001
greater. The coverage rules under the Affordable Care Act
('ACA') are in transition, thus creating the possibility of
increased costs for boards of health for treatment of opioid-
addicted patients admitted under the Emergency Medical
Treatment and Labor Act ('EMTALA'), 42 U.S.C. § 395dd.
Those increased costs would increase the likelihood that
patients would seek treatment through boards of health and
their primary care providers.
"39. [Mobile Health] encounter[s] patients with opioid
addiction on a daily basis. [It] must deal with patients who
have serious medical conditions that require extra care and
expense because the patients are addicted to opioids.
"40. The statistics are startling. Adult hospitalizations due
substantially to opioid-related medical conditions doubled from
2000 to 2012. From 2005 to 2014, emergency department
visits exhibited a 99.4% cumulative increase. [Mobile Health
has] experienced similar increases in the number of patients
seen with opioid-related medical issues.
"41. Between 2005 and 2014, there was a dramatic increase
nationally in hospitalizations involving opioids: the rate of
opioid-related inpatient stays increased 64%, and the rate of
opioid-related emergency department ('ED') visits nearly
doubled. And, likewise, [Mobile Health has] experienced a
similar increase in visits from patients with opioid-related
medical issues.
"....
"43. The cost to treat those with opioid addiction has more
than tripled in a decade, up to nearly $15 billion in 2012.
Similarly, the number of patients hospitalized due to the
effects of these drugs surged by more than 72% in 2012,
8
1191001
although overall hospitalizations during that time stayed
relatively flat. [Mobile Health has] experienced similar
increases and similar associated increased costs.
"44. Private insurance covers only a portion of those costs.
The burden is carried by hospitals, boards of health, primary
care providers, patients, and government programs. In 2012,
hospitals provided almost $15 billion for opioid-related
inpatient care, more than double of what they billed in 2002.
A substantial portion of these costs were under-insured or
unreimbursed.
"45. In 2012, an average hospital stay for a patient with an
opioid-related condition cost about $28,000 and only about 20%
of the hospital stays related to those incidents were covered by
private insurance. The number increased to $107,000 if there
was an associated infection, with merely 14% covered by
insurance.
46. Patients with complex opioid addiction-related histories
(medically and psychosocially) often cannot get treatment at
skilled nursing facilities if they are discharged by hospitals.
"47. The cost of treating opioid overdose victims in hospital
intensive care units jumped 58% in a seven-year span.
Between 2009 and 2015, the average cost of care per opioid
overdose admission increased from $58,000 to $92,400. This
was during a period where the overall medical cost escalation
was about 19%. This cost increase also highlights a troubling
trend: overdose patients are arriving in worse shape,
requiring longer stays and a higher level of treatment.
"....
9
1191001
"49. The rates of opioid abuse during pregnancy have
increased nationally and in Alabama. There has been an
almost four-fold increase in admissions to NICUs for NAS over
the past decade: from seven cases per 1,000 NICU admissions
in 2004, to 27 cases per 1,000 NICU admissions in 2012.
"____________________
"50'Opioid-related conditions' include but are not limited
to opioid addiction and overdose; psychiatric and mental
health treatment; NAS or other opioid-related conditions of
newborns; illnesses associated with opioid use, such as
endocarditis, HCV, and HIV; surgical procedures that are more
complex and expensive due to opioid addiction; illnesses or
conditions claimed by a person with opioid addiction in order
to obtain an opioid prescription; and any other condition
identified in [Mobile Health's] records as related to opioid use
and abuse."
(Emphasis added.)
On October 15, 2019, Mobile Health filed its original complaint in
the Mobile Circuit Court against Abbott and numerous other defendants --
over 60 defendants in all -- alleging that they had caused a public
nuisance in the form of an opioid epidemic:
"1. The opioid epidemic is an ongoing crisis in Alabama.
Opioid use has had tragic consequences for communities across
Alabama, including those in Mobile, Baldwin, and Conecuh
Counties. Thousands of people have died from opioid
overdoses, and many thousands more suffer from Opioid use
disorders and related health conditions in Alabama. The
10
1191001
misrepresentations by Defendants described herein regarding
the risks and benefits of opioids enabled, and are continuing to
enable, the widespread prescribing of opioids for common
chronic pain conditions like lower back pain, arthritis, and
headaches.
"....
"953. This [nuisance] claim is brought under the Alabama
common law of nuisance. This claim is also brought pursuant
to Ala. Code § 22-3-2(3), which instructs Plaintiff Mobile
County Board of Health to abate nuisances.[4]
"....
"958. The nuisance created by Defendants is the over-
saturation of opioids in the patient population of the
geographic area served by [Mobile Health] for illegitimate
purposes, as well as the adverse social, economic, and human
health outcomes associated with widespread illegal opioid
use."
4Section 22-3-2(3), Ala. Code 1975, provides:
"It shall be the duty of the county boards of health in
their respective counties and subject to the supervision and
control of the State Board of Health:
"....
"(3) To investigate, through county health officers or
quarantine officers, all nuisances to public health and, through
said officers, to take proper steps for the abatement of such
nuisances."
11
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Mobile Health asserted against Abbott claims of negligence, wantonness,
nuisance, unjust enrichment, fraud and deceit, and civil conspiracy. With
respect to all of their claims against all the defendants, Mobile Health
alleged:
"918. [Mobile Health is] entitled to a tolling of any statutes of
limitation because Defendants fraudulently concealed the
existence of their causes of action from [it]. [Mobile Health]
did not know, and did not have any reason to know, any of the
facts regarding Defendants' marketing misconduct until the
DEA’s
[Drug
Enforcement
Administration]
ARCOS
[Automated Reports and Consolidated Ordering System] data
was released in 2019.[5] Until then, [Mobile Health was] not
5In its brief supporting its motion to dismiss the complaint, Abbott
explained:
" 'Automated Reports and Consolidated Ordering System
(ARCOS) is a data collection system in which manufacturers
and
distributors
report
their
controlled
substances
transactions to the Drug Enforcement Administration (DEA).
ARCOS provides an acquisition/distribution transactional
records of applicable activities to the DEA involving certain
controlled substances, in accordance with Title 21, United
States Code, Section 827(d)(1), and Title 21, Code of Federal
Regulations, Section 1304.33. This information is collected
and compiled by DEA in accordance with law for determining
quota, distribution trends, internal audits, and other
analyses.' "
(Quoting United States Dep't of Justice, Drug Enf't Admin. Diversion
12
1191001
aware that the opioid crisis was the result of massive and
improper distribution of opioids in the counties that [it]
C o n t r o l
D i v . ,
h t t p s : / / w w w . d e a d i v e r s i o n . u s d o j .
gov/arcos/retail_drug_summary/.)
In its brief to this Court, Abbott notes: "In July of 2019, Judge [Dan
A.] Polster of the [Federal District Court for the] Northern District of Ohio
ordered public release of ARCOS data from 2006 to 2012." Abbott's brief,
p. 18 n.8.
As further context, we observe that on December 5, 2017, the United
States Judicial Panel on Multidistrict Litigation ("JPML") ordered the
transfer to the United States District Court for the Northern District of
Ohio of 64 civil actions filed by cities, counties, and states pending in nine
districts for centralized pretrial proceedings. See In re National
Prescription Opiate Litig., 290 F. Supp. 3d 1375 (U.S. Jud. Panel
Multidist. Litig. 2017). All of those actions alleged that "opioid
manufacturers, opioid distributors, and opioid-selling pharmacies and
retailers acted in concert to mislead medical professionals into
prescribing, and millions of Americans into taking and often becoming
addicted to, opiates." In re National Prescription Opiate Litig., 976 F.3d
664, 667 (6th Cir. 2020). The JPML concluded that "the actions involved
common questions of fact, centralization would serve convenience of the
parties and witnesses and promote just and efficient conduct of the
litigation, and would substantially reduce the risk of duplicative
discovery, minimize the possibility of inconsistent pretrial obligations, and
prevent conflicting rulings on pretrial motions." Jason B. Binimow,
Annotation, Opioid Marketing, Promoting, and Distributing Claims
Against Manufacturers and Distributors, 39 A.L.R. 7th Art. 4, § 4 (2018).
As of September 2020, "[t]he national prescription opioid [multidistrict
litigation], consolidated in the District of Ohio, consists of over 1,300
public-entity-led lawsuits, primarily filed by cities and counties." 976 F.3d
at 667.
13
1191001
serve[s]. Also, [Mobile Health] did not know, and did not have
any reason to know, of the Defendants' failures to report
suspicious orders and otherwise prevent diversion of opioids in
the three counties that [it] serve[s] until [it was] able to obtain
in 2019 excerpts of pleadings, documents, and testimony
produced in the MDL [multidistrict litigation6]. [Mobile
Health] first became aware of allegations about Defendants’
marketing practices from news articles in 2018. Without the
ARCOS data, and without the information from the MDL,
[Mobile Health was] unable to determine that [it] had a cause
of action to pursue against Defendants."
On February 28, 2020, Abbott filed a motion to dismiss all the claims
asserted against it, arguing, among other things, that the claims were
barred by the 20-year common-law rule of repose and by the applicable
statute of limitations. On March 11, 2020, Mobile Health filed an
"Omnibus Response in Opposition to Motions to Dismiss" that responded
to motions to dismiss filed by multiple defendants in the action, including
Abbott. On April 1, 2020, Abbott filed a reply in support of its motion to
dismiss.
On July 28, 2020, the circuit court entered an order denying the
motions to dismiss of several defendants, including Abbott. The order did
6See note 5, supra.
14
1191001
not explain the circuit court's reasons for denying Abbott's motion to
dismiss Mobile Health's claims against it. Abbott filed its mandamus
petition on September 4, 2020.
II. Standard of Review
"A writ of mandamus is an extraordinary remedy
available only when the petitioner can demonstrate: ' "(1) a
clear legal right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a refusal to
do so; (3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the court." ' Ex parte Nall, 879
So. 2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc.,
823 So. 2d 1270, 1272 (Ala. 2001))."
Ex parte Watters, 212 So. 3d 174, 180 (Ala. 2016).
"The general rule is that, subject to certain narrow exceptions, the
denial of a motion to dismiss is not reviewable by petition for a writ of
mandamus." Ex parte Brown, [Ms. 1190962, Jan. 22, 2021] ___ So. 3d ___,
___ (Ala. 2021). However,
"[t]his Court has recognized that an appeal is an
inadequate remedy in cases where it has determined that a
defendant should not have been subjected to the inconvenience
of litigation because it was clear from the face of the complaint
that the defendant was entitled to a dismissal or to a judgment
in its favor."
15
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Ex parte Sanderson, 263 So. 3d 681, 687-88 (Ala. 2018) (citing Ex parte
Hodge, 153 So. 3d 734 (Ala. 2014), and Ex parte U.S. Bank Nat'l Ass'n,
148 So. 3d 1060 (Ala. 2014)). In particular, in Ex parte Hodge, this Court
permitted mandamus review of a trial court's denial of a motion to dismiss
contending that the plaintiff's malpractice claim was barred by the
four-year statute of repose contained in § 6-5-482(a), Ala. Code 1975, when
the applicability of that statute was clear from the face of the complaint.
Cf. Ex parte Watters, 212 So. 3d at 182 (denying a mandamus petition
because "it [was] not abundantly clear from the face of [the plaintiff's]
complaint whether the survival statute dictate[d] dismissal of the
legal-malpractice claim because the issue whether the claim sound[ed] in
tort, in contract, or in both for that matter, [was] sharply disputed by the
parties"). Thus, if it is clear from the face of Mobile Health's complaint
that the claims against Abbott are barred by the rule of repose or the
applicable statute of limitations, then Abbott is entitled to mandamus
relief.
With respect to evaluating a trial court's denial of a Rule 12(b)(6)
motion to dismiss,
16
1191001
"[t]he appropriate standard of review ... is whether 'when
the allegations of the complaint are viewed most strongly in
the pleader's favor, it appears that the pleader could prove any
set of circumstances that would entitle [the pleader] to relief.'
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993); Raley v.
Citibanc of Alabama/Andalusia, 474 So. 2d 640, 641 (Ala.
1985). This Court does not consider whether the plaintiff will
ultimately prevail, but only whether the plaintiff may possibly
prevail. Nance, 622 So. 2d at 299. A 'dismissal is proper only
when it appears beyond doubt that the plaintiff can prove no
set of facts in support of the claim that would entitle the
plaintiff to relief.' Nance, 622 So. 2d at 299; Garrett v.
Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496
So. 2d 768, 769 (Ala. 1986)."
Lyons v. River Rd. Constr., Inc., 858 So. 2d 257, 260 (Ala. 2003).
III. Analysis
In its brief to this Court, Abbott repeats the arguments from its
motion to dismiss that Mobile Health's claims against it are barred by the
20-year rule of repose and by the applicable statute of limitations. Because
we conclude that it is clear from the face of the complaint that Mobile
Health's claims against Abbott are barred by the applicable statute of
limitations, we address only that issue and pretermit discussion of
whether the rule of repose likewise requires dismissal of the claims.
17
1191001
"The statute of limitations begins to run when the cause of action
accrues, which this Court has held is the date the first legal injury occurs."
Ex parte Integra LifeSciences Corp., 271 So. 3d 814, 818 (Ala. 2018). "A
cause of action accrues as soon as the claimant is entitled to maintain an
action, regardless of whether the full amount of the damage is apparent
at the time of the first legal injury." Chandiwala v. Pate Constr. Co., 889
So. 2d 540, 543 (Ala. 2004).
The claim both parties focus on with respect to the statute of
limitations is Mobile Health's nuisance claim. The statute of limitations
for a nuisance claim is two years.7 See, e.g., Ex parte Brian Nelson
7The applicable statute of limitations for most of Mobile Health's
other claims against Abbott -- negligence, wantonness, and fraud and
deceit -- is also two years. See, e.g., Ex parte Capstone Bldg. Corp., 96
So. 3d 77, 88 (Ala. 2012) ("We once again reaffirm the proposition that
wantonness claims are governed by the two-year statute of limitations
now embodied in § 6-2-38(l)[, Ala. Code 1975]."); Bush v. Ford Life Ins.
Co., 682 So. 2d 46, 47 (Ala. 1996) ("The statute of limitations applicable
to a negligence claim is two years."); Liberty Nat'l Life Ins. Co. v.
McAllister, 675 So. 2d 1292, 1297 (Ala. 1995) ("A fraud action is subject to
a two-year statute of limitations."). The same limitations period applies
to the civil-conspiracy claims. See, e.g., Freeman v. Holyfield, 179 So. 3d
101, 105 (Ala. 2015). This Court has not decided whether the applicable
limitations period for an unjust-enrichment claim is two years or six
years. See Snider v. Morgan, 113 So. 3d 643, 655 (Ala. 2012) ("Our
18
1191001
Excavating, LLC, 25 So. 3d 1143, 1145 (Ala. 2009) (discussing "the
two-year statute of limitations in § 6-2-38, Ala. Code 1975, for nuisance
claims"). As Abbott observes, according to the complaint, Abbott last
actively marketed OxyContin in 2002 and it received its last payments
from its co-promotion agreement with Purdue in 2006, but Mobile Health
commenced this action on October 15, 2019. Abbott therefore argues that
from the face of the complaint Mobile Health commenced its action
11 years after the expiration of the applicable statute of limitations.
Mobile Health presents three arguments in response. First, it
contends that it alleged that the public nuisance is a continuing tort and,
thus, is not barred by the statute of limitations.
"The Complaint shows that [Mobile Health] alleges that
Abbott’s tort was a continuing pattern of conduct that
continued at least until the time that [Mobile Health] filed the
lawsuit. See generally Complaint. Thus, under established
research similarly confirms that there is a distinct absence of authority
definitively stating the statute of limitations applicable to an
unjust-enrichment claim. We need not, however, decide that issue here.").
However, Mobile Health did not argue before the circuit court or in this
Court that its unjust-enrichment claim against Abbott is within the
statute of limitations absent tolling through fraud, an argument we
address later in this opinion.
19
1191001
Alabama law, the Complaint sufficiently alleges continuing
tortious conduct and the statute of limitations does not bar
this continuing nuisance claim."
Mobile Health's brief, p. 15. For support, Mobile Health cites such cases
as Alabama Great Southern R.R. v. Denton, 239 Ala. 301, 305, 195 So.
218, 221 (1940), in which this Court stated: "We recognize that one
maintaining a continuing public nuisance, as for example, one
endangering the public health or public safety, cannot defend against a
suit to abate same because of the lapse of time." See also Holz v. Lyles,
287 Ala. 280, 284, 251 So. 2d 583, 587 (1971) ("But one maintaining a
continuing public nuisance cannot defend against a suit to abate the
nuisance because of lapse of time ....").
Mobile Health is certainly correct that it generally alleged a
continuous tort against the marketing defendants.
"221. Each Marketing Defendant has conducted, and
continues to conduct, a marketing scheme designed to
persuade doctors and patients that opioids can and should be
used for chronic pain, resulting in opioid treatment for a far
broader group of patients who are much more likely to become
addicted and suffer other adverse effects from the long-term
use of opioids. In connection with this scheme, each Marketing
Defendant spent, and continues to spend, millions of dollars on
promotional activities and materials that falsely deny,
20
1191001
trivialize, or materially understate the risks of opioids while
overstating the benefits of using them for chronic pain."
However, the specific allegations against Abbott in the complaint do not
mention conduct of any kind by Abbott after 2006. This is important
because there must be a connection between the defendant's actions and
the ongoing tort.
"This Court has used the term 'continuous tort' to describe a
defendant's repeated tortious conduct which has repeatedly
and continuously injured a plaintiff. These cases can be
analyzed by analogizing the plaintiffs' cause of action to the
common law action of continuing trespass or trespass on the
case.
"This Court has held that a defendant's repeated wrongs
to the plaintiff can constitute a 'continuous tort,' such as:
(1) when an employer exposes its employee on a continuing
basis to harmful substances and conditions [American Mut.
Liability Ins. Co. v. Agricola Insurance Co., 236 Ala. 535, 183
So. 677 (1938)]; (2) when there is a 'single sustained method
pursued in executing one general scheme,' as in a blasting case
[Lehigh Portland Cement Co. v. Donaldson, 231 Ala. 242, 246,
164 So. 97 (1935) ]; and (3) when a plaintiff landowner seeks
damages for the contamination of a well or stream [Howell v.
City of Dothan, 234 Ala. 158, 174 So. 624 (1937); Employers
Insurance Company of Alabama v. Rives, 264 Ala. 310, 87
So. 2d 653 (1955); and Alabama Fuel & Iron Co. v. Vaughn,
203 Ala. 461, 83 So. 323 (1919)].
"The stream and well pollution cases, the blasting cases,
and the employer-employee cases are all cases in which this
21
1191001
Court has held that the defendants committed a continuous
tort. The cases are analogous to a continuing trespass in that
the repeated actions of the defendants combined to create a
single cause of action in tort."
Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala. 1983) (emphasis
added). See also Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208,
1216 (Ala. 1990) (holding that "an action such as this, arising from
continuing dealings between the parties, will not be barred until two years
after the last tortious act by the defendant" (emphasis added)). Holz and
Denton contain this same idea by discussing a defendant's "maintaining
a continuing public nuisance," indicating that the reason the statute of
limitations does not expire for a continuous tort is because the defendant's
conduct is ongoing within the period of the statute of limitations. Cf.
Payton v. Monsanto Co., 801 So. 2d 829, 836 (Ala. 2001) (concluding that
the plaintiff's "complaint describing continuing discharge of PCBs as of the
time of the commencement of this action" allowed the claims to "survive
a defense of limitations by proof of conduct occurring within the
limitations period"); Alabama Power Co. v. Gielle, 373 So. 2d 851, 854
(Ala. Civ. App. 1979) ("A continuing trespass creates successive causes of
22
1191001
action, and damages may be recovered for the trespass occurring within
the statutory period.").
In short, the fact that the alleged opioid epidemic itself was ongoing
at the time Mobile Health filed its original complaint does not mean that
Abbott's conduct in relation to the epidemic is not subject to the statute
of limitations. As the Court explained in Payton:
"Alabama law does not recognize a continuing tort in instances
where there has been a single act followed by multiple
consequences.2
"_______________
"2Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220-21 (Ala.
1983), discusses the concept of 'continuous tort,' describing it
as a defendant's liability for repeated wrongs to the plaintiff.
Then, the Court offers several illustrations, including 'when a
plaintiff landowner seeks damages for the contamination of a
well or stream.' Id. at 221. However, the three cases cited to
support this proposition involve repetitive acts or ongoing
wrongdoing; Howell v. City of Dothan, 234 Ala. 158, 174 So.
624 (1937) (ongoing discharge of sewage), Employers
Insurance Co. of Alabama v. Rives, 264 Ala. 310, 87 So. 2d 653
(1955) (opinion refers to repetitive acts), Alabama Fuel & Iron
Co. v. Vaughn, 203 Ala. 461, 83 So. 323 (1919) (damage
resulting from the ongoing operations of a coal mine)."
801 So. 2d at 835 (emphasis added). There are no allegations of ongoing
wrongdoing by Abbott within two years of the date Mobile Health filed its
23
1191001
original complaint. Therefore, Mobile Health's general allegation of a
continuous public nuisance does not save its claims against Abbott from
the statute-of-limitations bar.
Mobile Health's second argument is that its allegations of fraudulent
concealment tolled the running of the statute of limitations. Section 6-2-3,
Ala. Code 1975, provides:
"In actions seeking relief on the ground of fraud where
the statute has created a bar, the claim must not be considered
as having accrued until the discovery by the aggrieved party
of the fact constituting the fraud, after which he must have
two years within which to prosecute his action."
With respect to the savings clause of § 6-2-3, this Court has stated:
" 'When ... the plaintiff's complaint on its face is barred by the
statute of limitations, the complaint must also show that he or
she falls within the savings clause of § 6-2-3.' Miller v. Mobile
County Bd. of Health, 409 So. 2d 420, 422 (Ala. 1981). '[T]he
burden is upon he who claims the benefit of § 6-2-3 to show
that he comes within it.' Amason v. First State Bank of
Lineville, 369 So. 2d 547, 551 (Ala. 1979). However, a
'dismissal based on the statute of limitations is proper only if,
from the face of the complaint, it is apparent that the tolling
provisions do not apply.' Travis v. Ziter, 681 So. 2d 1348, 1351
(Ala. 1996).
"This Court has held that to show that a plaintiff's claims
fall within the savings clause of § 6-2-3 a complaint must
allege the time and circumstances of the discovery of the cause
24
1191001
of action. See, e.g., Angell v. Shannon, 455 So. 2d 823, 823-24
(Ala. 1984); Papastefan v. B & L Constr. Co., 356 So. 2d 158,
160 (Ala. 1978). The complaint must also allege the facts or
circumstances by which the defendants concealed the cause of
action or injury and what prevented the plaintiff from
discovering the facts surrounding the injury. See, e.g., Smith
v. National Sec. Ins. Co., 860 So. 2d 343, 345, 347 (Ala. 2003);
Lowe v. East End Mem'l Hosp. & Health Ctrs., 477 So. 2d 339,
341-42 (Ala. 1985); Miller, 409 So. 2d at 422. See also Amason,
369 So. 2d at 550."
DGB, LLC v. Hinds, 55 So. 3d 218, 226 (Ala. 2010) (emphasis added).
Mobile Health contends that "the Complaint plainly alleges
sufficient facts to toll the action under this principle," citing paragraph
918 of the first amended complaint. We quoted the entirety of that
paragraph in the rendition of the facts, but the portion of that paragraph
that alleges fraud consists of a single sentence: "[Mobile Health is]
entitled to a tolling of any statutes of limitation because Defendants
fraudulently concealed the existence of their causes of action from [it]."
The remainder of the paragraph concerns the allegation that Mobile
Health first learned about the misconduct of the marketing defendants in
2019 with the release of the "ARCOS data." That latter portion of
paragraph 918 of the complaint provides details about the circumstances
25
1191001
of the time and discovery of the cause of action, but, as Hinds indicates,
the plaintiff must also "allege the facts or circumstances by which the
defendants concealed the cause of action." 55 So. 3d at 226. The
complaint provides no details of fraud by Abbott that prevented Mobile
Health from discovering Abbott's alleged misconduct before October 15,
2019. This Court discussed a similar failure by a plaintiff with respect to
a particular defendant in Miller v. Mobile County Board of Health, 409
So. 2d 420, 422 (Ala. 1981):
"The complaint fails to allege any of the facts or circumstances
by which the [defendants] concealed the cause of action or
injury. The complaint also fails to allege what prevented [the
plaintiffs] from discovering facts surrounding the injury. See
Amason v. First State Bank of Lineville, 369 So. 2d 547 (Ala.
1979); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979).
The plaintiffs make only generalized allegations to support
their claim for fraudulent concealment. Although under
modern rules of civil practice the pleadings only need to put
the defending party on notice of the claims against him,
Rule 9(b)[, Ala. R. Civ. P.,] qualifies the generalized pleadings
permitted by Rule 8(a), [Ala. R. Civ. P.]. 'The pleading must
show time, place and the contents or substance of the false
representations,
the
facts
misrepresented,
and
an
identification of what has been obtained.' Rule 9(b), [Ala. R.
Civ. P.], Committee Comments. The allegations contained in
count 6 fail to meet the requirements of Rule 9. Thus, the trial
court did not err in granting the motion to dismiss in favor of
[one of the defendants]."
26
1191001
See also Smith v. National Sec. Ins. Co., 860 So. 2d 343, 347 (Ala. 2003)
("Here, as in Miller, Smith's complaint 'fails to allege any of the facts or
circumstances by which the [defendants] concealed the cause of action or
injury,' and 'fails to allege what prevented [Smith] from discovering facts
surrounding the [fraud].' 409 So. 2d at 422. Smith's general reference to
the alleged fraud as being 'of a continuing nature' is wholly lacking in
specificity and equally deficient as a means of saving the action from the
bar of the statute of limitations appearing on the face of the complaint.").
As with the plaintiffs' allegations in Miller and Smith, Mobile
Health's complaint lacks any of the specificity required by Rule 9(b), Ala.
R. Civ. P., for allegations of fraud against Abbott. Without such
allegations, Mobile Health cannot meet its burden of demonstrating that
its claims fall within the savings clause of § 6-2-3. Therefore, the
applicable statutes of limitations on Mobile Health's claims against Abbott
are not tolled by the existence of fraud.
Finally, Mobile Health contends that the statute of limitations
should not apply because it could not have known about Abbott's
misconduct without the "ARCOS data" that was released in the federal
27
1191001
multidistrict litigation in 2019. See note 5, supra. This is the thrust of
paragraph 918 of the complaint. However, there are at least two problems
with this contention. First, as Abbott observes, the complaint itself
contradicts this allegation. Paragraph 72 of the complaint states:
"72.
Each
Marketing
Defendant
knew
that
its
misrepresentations of the risks and benefits of opioids were
not supported by or were directly contrary to the scientific
evidence.
Indeed,
the
falsity
of
each
Defendant's
misrepresentations has been confirmed by the U.S. Food and
Drug Administration ('FDA') and the CDC [Centers for Disease
Control and Prevention], including by CDC's Guideline for
Prescribing Opioids for Chronic Pain, issued in 2016 and
approved by the FDA."
The footnote that accompanies paragraph 72 cites a Centers for Disease
Control and Prevention Guideline published on February 4, 2016. More
specifically with respect to Abbott, paragraph 146 of the complaint states:
"146. Abbott and Purdue's conspiracy with Pharmacy Benefit
Managers (PBMs) to drive opioid use is well established. As
described in an October 28, 2016, article from Psychology
Today entitled America's Opioid Epidemic:
" 'Abbott
and
Purdue
actively
misled
prescribers about the strength and safety of the
painkiller [OxyContin]. To undermine the policy of
requiring prior authorization, they offered lucrative
rebates to middlemen such as Merck Medco [now
Express Scripts] and other pharmacy benefits
28
1191001
managers on condition that they eased availability
of the drug and lowered co-pays. The records were
part of a case brought by the state of West Virginia
against both drug makers alleging inappropriate
and illegal marketing of the drug as a cause of
widespread addiction. ... One reason the
documents are so troubling is that, in public at
least, the drug maker was carefully assuring
authorities that it was working with state
authorities to curb abuse of OxyContin. Behind the
scene, however, as one Purdue official openly
acknowledged, the drug maker was "working with
Medco (PBM) [now Express Scripts] to try and
make parameters [for prescribing] less stringent."
[American Society of Addiction Medicine, America's
Opioid Epidemic -- Court released documents show
drug makers blocked efforts to curb prescribing,
Psychology
Today
(Oct.
28,
2016),
https://www.psychologytoday.com/US/blog/side-
effects/20l610/america-s-opioid-epidemic.]"
Thus, at least some of Abbott's conduct was known in 2016, rather than
in 2019 as Mobile Health asserts. We also note that the history of
OxyContin litigation further undermines this allegation. Suits in multiple
jurisdictions against Purdue and Abbott related to their promotion and
marketing of OxyContin date back to at least 2001 and have been filed
consistently in the years since that time. See, e.g., McCallister v. Purdue
Pharma L.P., 164 F. Supp. 2d 783 (S.D. W. Va. 2001); McCaulley v.
29
1191001
Purdue Pharma, L.P., 172 F. Supp. 2d 803 (W.D. Va. 2001); Wethington
v. Purdue Pharma LP, 218 F.R.D. 577 (S.D. Ohio 2003); Labzda v. Purdue
Pharma, L.P., 292 F. Supp. 2d 1346 (S.D. Fla. 2003); Foister v. Purdue
Pharma, L.P., 295 F. Supp. 2d 693, 709 (E.D. Ky. 2003); Yurcic v. Purdue
Pharma, L.P., 343 F. Supp. 2d 386 (M.D. Pa. 2004); Howland v. Purdue
Pharma L.P., 104 Ohio St. 3d 584, 585, 821 N.E.2d 141, 143 (2004)
(observing that "[t]he United States Drug Enforcement Agency ('DEA')
also recognized problems associated with OxyContin, and reports linking
OxyContin to various deaths and addiction problems began surfacing" in
2001); Griffith v. Purdue Pharma Co., No. 3:04-cv-10072-REL-RAW,
July 29, 2005 (S.D. Iowa 2005) (not selected for publication in F. Supp.)
(noting that "[t]his is one of over a hundred actions which have been filed
in various jurisdictions involving the prescription analgesic OxyContin");
Hurtado v. Purdue Pharma Co., 6 Misc. 3d 1015(A), 800 N.Y.S.2d 347
(Sup. Ct. 2005) (table); Koenig v. Purdue Pharma Co., 435 F. Supp. 2d 551
(N.D. Tex. 2006); In re Oxycontin Antitrust Litig., 821 F. Supp. 2d 591
(S.D. N.Y. 2011).
30
1191001
Second, and more importantly, this Court has often noted that "[t]he
plaintiff's ignorance of a tort or injury does not postpone the running of
the statute of limitations until that tort is discovered." Payne v. Alabama
Cemetery Ass'n, 413 So. 2d 1067, 1072 (Ala. 1982). See, e.g., Kelley v.
Shropshire, 199 Ala. 602, 605, 75 So. 291, 292 (1917) (same). Mobile
Health admitted in its response in opposition to Abbott's motion to dismiss
that its "Complaint alleges that the opioid crisis began causing effects in
the counties [Mobile Health] serve[s] in 2012 or 2013." Despite that fact,
Mobile Health did not commence this action until October 2019. The lack
of the availability of the "ARCOS data" simply does not legally excuse
Mobile Health's belated filing of its complaint against Abbott.
In sum, it is clear from the face of Mobile Health's complaint that its
claims against Abbott are barred by the applicable statutes of limitations
because the latest date provided for Abbott's alleged conduct was 2006 but
the original complaint was not filed until October 15, 2019. Mobile
Health's arguments asserting a continuous tort, fraud, and ignorance of
the torts fail to demonstrate that the applicable statutes of limitations do
not bar Mobile Health's claims against Abbott. Accordingly, the circuit
31
1191001
court erred in denying Abbott's motion to dismiss the claims against it,
and therefore the petition is due to be granted.
IV. Conclusion
The applicable statutes of limitations clearly bar Mobile Health's
claims against Abbott. Therefore, we grant Abbott's petition for a writ of
mandamus and direct the circuit court to enter an order dismissing Mobile
Health's claims against Abbott.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, and
Stewart, JJ., concur.
Mitchell, J., recuses himself.
32 | May 28, 2021 |
9fef3c3c-6614-4f87-8ece-9dfb748730dc | Turner v. Estate of Johnny B. Turner | N/A | 1190948 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190948
_________________________
Susan L. Turner
v.
Estate of Johnny B. Turner, deceased
Appeal from Dale Probate Court
(No. 20-118)
WISE, Justice.
Susan L. Turner appeals from a judgment of the Dale Probate Court
admitting the will of Johnny B. Turner to probate and granting letters
1190948
testamentary to Lana Rogers. We vacate the judgment and dismiss this
appeal.
Facts and Procedural History
On July 1, 2020, Lana Rogers filed a petition in the Dale Probate
Court, requesting that a purported will of decedent of Johnny B. Turner,
who died on June 13, 2020, be admitted to probate. On July 27, 2020,
Susan Turner filed a will contest pursuant to § 43-8-190, Ala. Code 1975,
in the probate court. In that same document, she also requested that the
probate court transfer the will contest to the Dale Circuit Court pursuant
to § 43-8-198, Ala. Code 1975.
On August 11, 2020, Rogers filed a petition in the probate court
asking that letters testamentary be issued to her. On that same date, the
probate court conducted a hearing and entered a judgment admitting the
will to probate and granting letters testamentary to Rogers. On August
18, 2020, Susan filed a notice of appeal to this Court.
Discussion
Susan argues that the probate court violated the "clearly mandatory
language of Sections 43-8-190 and 43-8-198" when it did not transfer her
2
1190948
will contest, which was commenced before the will was admitted to
probate, to the circuit court. In an appellee's brief that was filed on behalf
of the estate of Johnny B. Turner, the estate concedes that,
"[o]nce the Contest was filed by [Susan] prior to the admission
of the Will to probate, the Probate Court lacked jurisdiction to
hold a hearing to probate the Will and to issue an order that
the Will was duly proved. See, e.g., Summerhill v. Craft, 425
So. 2d 1055, 1056 (Ala. 1983); Hodges v. Hodges, 72 So. 3d 687,
691-692 (Ala. Civ. App. 2011) (given mandatory language of §
43-8-198, probate court only had authority to transfer case to
Circuit Court)."
We agree.
"Under Alabama law, the probate court has general and
original jurisdiction over matters involving the administration
of estates and the probating of wills. See Ala. Const. 1901 (Off.
Recomp.), art. VI, § 144; and § 12-13-1, Ala. Code 1975. When
a party files a will contest, that contest either may be initiated
in the probate court pursuant to § 43-8-190, Ala. Code 1975, if
the will has not yet been admitted to probate, or may be
initiated in the circuit court pursuant to § 43-8-199, Ala. Code
1975, within six months after the will has been admitted to
probate.
"Section 43-8-190 which is applicable in this case because
Angela's contest of the 2013 will was filed before any will had
been admitted to probate, provides as follows:
" 'A will, before the probate thereof, may be
contested by any person interested therein, or by
any person, who, if the testator had died intestate,
3
1190948
would have been an heir or distributee of his
estate, by filing in the court where it is offered for
probate allegations in writing that the will was not
duly executed, or of the unsoundness of mind of the
testator, or of any other valid objections thereto;
and thereupon an issue must be made up, under
the direction of the court, between the person
making the application, as plaintiff, and the person
contesting the validity of the will, as defendant;
and such issue must, on application of either party,
be tried by a jury.'
"There is no dispute that Angela is a 'person interested'
in the 2013 will for purposes of invoking § 43-8-190 or that the
contest did not otherwise comply with that Code section. Thus,
the filing of her contest in the probate court was proper
pursuant to that Code section. Angela simultaneously filed
with her will contest a request to have the contest transferred
to the circuit court. Section 43-8-198, Ala. Code 1975, allows a
party to seek a transfer of a will contest from the probate court
to the circuit court and provides, in pertinent part:
" 'Upon the demand of any party to the
contest, made in writing at the time of filing the
initial pleading, the probate court, or the judge
thereof, must enter an order transferring the
contest to the circuit court of the county in which
the contest is made, and must certify all papers
and documents pertaining to the contest to the
clerk of the circuit court, and the case shall be
docketed by the clerk of the circuit court and a
special session of said court may be called for the
trial of said contest or, said contest may be tried by
said circuit court at any special or regular session
of said court.'
4
1190948
"(Emphasis added.) For purposes of § 43-8-198, Angela, as the
contestant, was a 'party to the contest,' and her request to
transfer was 'made in writing at the time of filing the initial
pleading,' that is, in a pleading contesting the 2013 will. See
Kaller ex rel. Conway v. Rigdon, 480 So. 2d 536, 539 (Ala.
1985) ('The "initial pleading" for the contestant in a will
contest is the filing of the contest itself in the probate court.').
"Alabama caselaw states:
" ' "[O]nce a will contestant seeking to remove the
contest pursuant to § 43-8-198 makes a prima facie
showing that he or she is a person described in §
43-8-190[, Ala. Code 1975, which pertains to who
may contest a will] as one 'interested therein,' the
probate court 'must enter an order transferring the
contest to the circuit court.' " [Ex parte McLendon,]
824 So. 2d [700] at 705 [(Ala. 2001)] (quoting §
43-8-198; emphasis added in McLendon). Just as a
court lacking subject-matter jurisdiction has no
authority to do anything other than enter a
judgment of dismissal, see Cadle Co. v. Shabani, 4
So. 3d 460, 463 (Ala. 2008), a probate court
confronted with a proper and timely transfer
demand accompanying a will contest can do
nothing but comply with the mandate of the
legislature and refer the contest to the appropriate
circuit court. See Summerhill v. Craft, 425 So. 2d
1055, 1056 [(Ala. 1982)] (construing Ala. Code
1975, § 43-1-78, which was repealed and was
replaced by § 43-8-198). Therefore ... the filing of
the [request to transfer] triggered a mandatory
duty on the part of the probate court to transfer the
contest to the circuit court forthwith, and without
5
1190948
further action touching on the validity of the will
submitted by the proponent ....'
"Hodges v. Hodges, 72 So. 3d 687, 691 (Ala. Civ. App. 2011).
Thus, once a party files a proper demand for transfer of a will
contest to the circuit court, the probate court is required to
enter a written order transferring the will contest, see §
43-8-198, and the probate court has no authority to do
anything other than timely refer the contest to the appropriate
circuit court."
Weems v. Long, [Ms. 1190369, April 16, 2021] ___ So. 3d ___, ___ (Ala.
2021).
Similarly, in this case, once Susan, who is undisputedly a "person
interested" in the will, filed her demand for the transfer of her will contest
to the circuit court, the probate court was required to enter a written
order transferring the will contest pursuant to § 43-8-198, and the probate
had no authority to do anything other than timely refer the contest to the
circuit court. "Because the probate court lacked jurisdiction in this case,
its judgment is void. A void judgment will not support an appeal. It is this
Court's obligation to vacate such a judgment and dismiss the appeal."
Russell v. Fuqua, 176 So. 3d 1224, 1229 (Ala. 2015) (internal citations and
footnote omitted).
6
1190948
JUDGMENT VACATED; APPEAL DISMISSED.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur.
7 | May 14, 2021 |
d9e4e173-c2e7-48ea-9141-08f24c4115bd | Ex parte TitleMax of Georgia, Inc., and TMX Finance LLC. | N/A | 1200128 | Alabama | Alabama Supreme Court | Rel: May 21, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1200128
____________________
Ex parte TitleMax of Georgia, Inc., and TMX Finance LLC
PETITION FOR WRIT OF MANDAMUS
(In re: Phallon Billingsley
v.
TitleMax of Alabama, Inc., et al.)
(Talladega Circuit Court, CV-19-900591)
BOLIN, Justice.
TitleMax of Georgia, Inc., and its parent company, TMX Finance
LLC ("TMX"), petition this Court for a writ of mandamus directing the
Talladega Circuit Court to vacate its order denying their motion to
1200128
dismiss them as parties to the underlying action commenced against them
and others by Phallon Billingsley and to enter an order dismissing them
from the action based on the trial court's lack of personal jurisdiction over
them.
Facts and Procedural History
This case involves the repossession of a 2005 Range Rover
automobile. In December 2014, the individual who owned the vehicle at
that time allegedly entered into a "pawn ticket" agreement with TitleMax
of Georgia pursuant to which the owner borrowed money from TitleMax
of Georgia and provided TitleMax of Georgia a security interest in the
vehicle.
On January 16, 2016, Billingsley, an Alabama resident, purchased
the vehicle from a dealer in Georgia, with financing from Coosa Pines
Federal Credit Union ("Coosa Credit"), and received a certificate of good
title. After a "perceived" default on the "pawn ticket" agreement by the
person who had owned the vehicle in December 2014, TitleMax of Georgia
authorized a vehicle-repossession company to take possession of the
2
1200128
vehicle when it was located in Virginia on June 21, 2019. TitleMax of
Georgia asked Insurance Auto Auctions Corp. ("IAA") to sell the vehicle.
At the time of repossession, the vehicle had a valid Alabama license
tag. On June 21, 2019, IAA received the vehicle. IAA subsequently
listed the vehicle for sale on its Web site, identifying TMX as the owner
of the vehicle. On July 1, 2019, TitleMax of Georgia received notice from
Coosa Credit that Billingsley was the owner of the vehicle. On July 8,
2019, Coosa Credit received a letter from TitleMax of Georgia notifying
it that TitleMax of Georgia would withhold selling the vehicle pending
further investigation. That letter was signed by a paralegal employed by
TMX.
From July 1, 2019, to September 6, 2019, TMX, on behalf of
TitleMax of Georgia, communicated with Coosa Credit regarding the
vehicle. On November 1, 2019, the paralegal employed by TMX
contacted Attention to Detail Transportation, LLC, about transporting the
vehicle from Yorktown, Virginia, to Sylacauga, Alabama, so that the
vehicle could be returned to Billingsley. On November 21, 2019, TitleMax
of Georgia, through TMX's paralegal, authorized IAA to release the
3
1200128
vehicle to Attention to Detail for transport to Alabama. On November 25,
2019, Attention to Detail sent TMX a bill for $1,600 for transporting the
vehicle. When Billingsley received the vehicle, it was damaged and
inoperable. It is unclear when the damage to the vehicle occurred.
On November 27, 2019, Billingsley sued TitleMax of Alabama, Inc.,
IAA, Coosa Credit, and other fictitiously named defendants. She
asserted claims of conversion, negligence, and wantonness against IAA
and TitleMax of Alabama and a claim of negligence against Coosa Credit.
TitleMax of Alabama filed a motion to dismiss, which the trial court
granted on March 2, 2020. Billingsley filed an amended complaint on
March 18, 2020, adding TitleMax of Georgia as a defendant and
substituting TitleMax of Georgia as the party against whom the claims
originally asserted against TitleMax of Alabama were being asserted.
On April 24, 2020, TitleMax of Georgia filed a motion to dismiss for lack
of personal jurisdiction, pursuant to Rule 12(b)(2), Ala. R. Civ. P. On
August 14, 2020, Billingsley filed a second amended complaint and
substituted TMX for one of the fictitiously named defendants.
4
1200128
On September 23, 2020, TitleMax and TMX filed a joint Rule
12(b)(2) motion to dismiss for lack of personal jurisdiction, arguing that
neither TitleMax of Georgia nor TMX reside in Alabama and that neither
entity has a presence in Alabama. They further argued that none of the
alleged events giving rise to the claims against them occurred in Alabama.
In support of their motion, TitleMax of Georgia and TMX attached two
affidavits from a TMX employee.
Specifically, TitleMax of Georgia and TMX argued that the trial
court should dismiss them as parties to the action for lack of personal
jurisdiction because they (1) were not incorporated in Alabama and did
not have their principal places of business in Alabama; (2) have never
maintained a registered agent for service of process in Alabama; (3) have
never owned any real estate, personal property, or other assets in
Alabama; (4) have never maintained any telephone, computer or server,
or any other electronic equipment in Alabama; (5) have never had a bank
account in Alabama; (6) have never borrowed any money (or applied to
borrow any money) from a bank in Alabama; (7) have never paid any taxes
in Alabama; and (8) have never purchased television or radio
5
1200128
advertisements in Alabama to market themselves to Alabama residents.
Consequently, TitleMax of Georgia and TMX argued that they did not
have continuous and systematic contacts with Alabama so as to support
general personal jurisdiction over them.
TitleMax of Georgia and TMX further argued that the trial court
lacked specific personal jurisdiction over them because neither TitleMax
of Georgia nor TMX did business in Alabama. TMX is a holding
company that does not engage in the business of consumer lending or
repossession, in Alabama or elsewhere. They further argued that neither
IAA nor Attention to Detail were their agents and that they did not
reserve the right to control the manner in which IAA or Attention to
Detail transacted business.
On October 7, 2020, Billingsley filed a response to TitleMax of
Georgia and TMX's joint motion to dismiss, arguing that the trial court
had general personal jurisdiction over TMX. She argued that TMX offers
title and personal loans through its subsidiaries operating under the trade
names TitleMax, TitleBucks, and InstaLoan and that TMX controls the
Web site www.titlemax.com, which advertises title-loan and title-pawn
6
1200128
services and employment opportunities in Alabama. Billingsley also
argued that TMX had been sued for its corporate conduct in Alabama.
She attached a copy of a 2016 consent order issued by the federal
Consumer Financial Protection Bureau regarding TMX, which arose from
complaints that TMX, while operating under the trade names TitleMax,
Title Bucks, and InstaLoan, allegedly engaged in abusive sales practices
in Alabama, Georgia, and Tennessee. Billingsley further relied on a
workers' compensation case pending in the Etowah Circuit Court in which
TMX was a defendant, had not contested personal jurisdiction, and was
participating in discovery. Billingsley specifically argued that TMX
"should not feign surprise when it is hauled into court in one of the 17
states where its agents and subsidiaries operate storefronts, like
Alabama, for its alleged misdeeds, when TMX ... directs, supervises, and
controls subsidiaries, employees and agents in these states and derives
substantial benefits" therefrom.
Billingsley also argued that the trial court had specific personal
jurisdiction over TitleMax of Georgia and TMX because, she asserted, an
agency relationship existed between those defendants and IAA and
7
1200128
Attention to Detail. She argued that TitleMax of Georgia and TMX (1)
controlled IAA and directed IAA not to sell the vehicle but to continue
wrongfully possessing the vehicle, (2) directed and instructed IAA to
release the vehicle to Attention to Detail, and (3) directed Attention to
Detail to transport the vehicle to Alabama.
On October 19, 2020, the trial court denied TitleMax of Georgia and
TMX's joint motion to dismiss. They now seek mandamus review of that
decision.
Standard of Review
" '[A] petition for a writ of mandamus is the proper
device by which to challenge the denial of a motion
to dismiss for lack of in personam jurisdiction. See
Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); Ex
parte Paul Maclean Land Servs., Inc., 613 So. 2d
1284, 1286 (Ala. 1993). " 'An appellate court
considers de novo a trial court's judgment on a
party's motion to dismiss for lack of personal
jurisdiction.' " Ex parte Lagrone, 839 So. 2d 620,
623 (Ala. 2002) (quoting Elliott v. Van Kleef, 830
So. 2d 726, 729 (Ala. 2002)). Moreover, "[t]he
plaintiff bears the burden of proving the court's
personal jurisdiction over the defendant." Daynard
v. Ness, Motley, Loadholt, Richardson & Poole,
P.A., 290 F.3d 42, 50 (1st Cir. 2002).'
8
1200128
"Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866
So. 2d 519, 525 (Ala. 2003).
" ' "In considering a Rule 12(b)(2), Ala. R. Civ.
P., motion to dismiss for want of personal
jurisdiction, a court must consider as true the
allegations of the plaintiff's complaint not
controverted
by
the
defendant's
affidavits,
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253
(11th Cir. 1996), and Cable/Home Communication
Corp. v. Network Productions, Inc., 902 F.2d 829
(11th Cir. 1990), and 'where the plaintiff's
complaint and the defendant's affidavits conflict,
the ... court must construe all reasonable inferences
in favor of the plaintiff.' Robinson, 74 F.3d at 255
(quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990))." '
"Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So. 2d
888, 894 (Ala. 2002) (quoting Ex parte McInnis, 820 So. 2d 795,
798 (Ala. 2001)). However, if the defendant makes a prima
facie evidentiary showing that the Court has no personal
jurisdiction, 'the plaintiff is then required to substantiate the
jurisdictional allegations in the complaint by affidavits or
other competent proof, and he may not merely reiterate the
factual allegations in the complaint.' Mercantile Capital, LP v.
Federal Transtel, Inc., 193 F. Supp. 2d 1243, 1247 (N.D. Ala.
2002)(citing Future Tech. Today, Inc. v. OSF Healthcare Sys.,
218 F.3d 1247, 1249 (11th Cir. 2000)). See also Hansen v.
Neumueller GmbH, 163 F.R.D. 471, 474-75 (D. Del. 1995)
('When a defendant files a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(2), and supports that motion with affidavits,
plaintiff is required to controvert those affidavits with his own
affidavits or other competent evidence in order to survive the
9
1200128
motion.') (citing Time Share Vacation Club v. Atlantic Resorts,
Ltd., 735 F.2d 61, 63 (3d Cir. 1984))."
Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229-30 (Ala. 2004).
Discussion
It is well settled that a nonresident defendant's physical presence in
Alabama is not a prerequisite to obtaining personal jurisdiction over the
nonresident defendant. In Ex parte McNeese Title, LLC, 82 So. 3d 670,
673 (Ala. 2011), this Court stated:
"Jurisdiction over out-of-state defendants is acquired
pursuant to Rule 4.2(b), Ala. R. Civ. P., which provides, in
pertinent part:
" 'An appropriate basis exists for service of process
outside of this state upon a person or entity in any
action in this state when the person or entity has
such contacts with this state that the prosecution
of the action against the person or entity in this
state is not inconsistent with the constitution of
this state or the Constitution of the United
States....'
"In other words, '[t]his rule extends the personal jurisdiction
of Alabama courts to the limit of due process under the United
States and Alabama Constitutions.' Hiller Invs., Inc. v.
Insultech Group, Inc., 957 So. 2d 1111, 1115 (Ala. 2006).
Under this rule, the exercise of jurisdiction is appropriate so
long as the out-of-state defendant has ' "some minimum
contacts with this state [so that] ... it is fair and reasonable to
10
1200128
require the person to come to this state to defend an
action." ' Dillon Equities v. Palmer & Cay, Inc., 501 So. 2d
459, 461 (Ala. 1986) (quoting former Rule 4.2(a)(2)(I), Ala. R.
Civ. P.)."
Because Rule 4.2(b), Ala. R. Civ. P., extends the personal
jurisdiction of Alabama courts to the limits of due process, we must
determine whether the trial court's exercise of personal jurisdiction over
TitleMax of Georgia and/or TMX comports with due process. Recently,
in Ex parte Bradshaw, [Ms. 1190765, Dec. 4, 2020] So. 3d ,
(Ala. 2020), this Court set out the analysis to be used in determining
whether the exercise of personal jurisdiction over a nonresident
defendant satisfies the requirements of due process.
" 'The sufficiency of a party's contacts are assessed
as follows:
" ' " 'Two
types
of
contacts can form a basis for
personal
jurisdiction:
general contacts and specific
contacts. General contacts,
which give rise to general
personal jurisdiction consist
of the defendant's contacts
with the forum state that
are unrelated to the cause of
action and that are both
11
1200128
" c o n t i n u o u s
a n d
systematic."
Helicopteros
Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408,
414 n.9, 415, 104 S.Ct. 1868,
80 L. Ed. 2d 404 (1984);
[citations omitted]. Specific
contacts, which give rise to
specific jurisdiction, consist
of the defendant's contacts
with the forum state that
are related to the cause of
action. Burger King Corp. v.
Rudzewicz, 471 U.S. 462,
472-75, 105 S. Ct. 2174, 85
L.
Ed.
2d
528
(1985).
Although
the
related
contacts
need
not
be
continuous and systematic,
they must rise to such a
level
as
to
cause
the
defendant
to
anticipate
being haled into court in the
forum state. Id.'
" ' "Ex parte Phase III Constr., Inc., 723
So. 2d 1263, 1266 (Ala. 1998) (Lyons, J.,
concurring in the result). ...
" ' "In the case of either general in
personam jurisdiction or specific in
personam
jurisdiction,
'[t]he
"substantial connection" between the
defendant
and
the
forum
state
necessary for a finding of minimum
12
1200128
contacts must come about by an action
of the defendant purposefully directed
toward the forum State.' Asahi Metal
Indus. Co. v. Superior Court of
California, 480 U.S. 102, 112, 107 S. Ct.
1026, 94 L. Ed. 2d 92 (1987). This
purposeful-availment
requirement
assures that a defendant will not be
haled into a jurisdiction as a result of
the ' "unilateral activity of another
person or a third person." ' Burger
King, 471 U.S. at 475, 105 S. Ct. 2174,
quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408,
417, 104 S. Ct. 1868, 80 L. Ed. 2d 404
(1984)."
" 'In Burger King the United States
Supreme Court explained:
" ' "[I]t is essential in each
case that there be some act
by which the defendant
purposefully avails itself of
the privilege of conducting
activities within the forum
State, thus invoking the
benefits and protections of
its laws.
" ' "This
purposeful
availment
requirement
ensures that a defendant
will not be haled into a
jurisdiction
solely
as
a
13
1200128
result of random, fortuitous,
or attenuated contacts, or of
the unilateral activity of
another party or a third
person.
Jurisdiction
is
proper, however, where the
contacts proximately result
from
actions
by
the
defendant
himself
that
create
a
substantial
connection with the forum
State.
Thus
where
the
defendant deliberately has
engaged
in
significant
activities within a State, or
has
created
continuing
obligations between himself
and residents of the forum,
he manifestly has availed
himself of the privilege of
conducting business there,
and because his activities
are shielded by the benefits
and
protections
of
the
fo rum's
laws
it
is
p r e s u m p t i v e l y
n o t
unreasonable to require him
to submit to the burdens of
litigation in that forum as
well."
" '471 U.S. at 475-76, 105 S. Ct. 2174
(internal
quotations
and
citations
omitted).'
14
1200128
"Ex parte Georgia Farm Bureau Mut. Auto. Ins. Co., 889 So.
2d 545, 550-51 (Ala. 2004).
"Further,
" ' "If there are substantial contacts with the
state, for example a substantial and continuing
business, and if the cause of action arises out of the
business done in the state, jurisdiction will be
sustained. If there are substantial contacts with
the state, but the cause of action does not arise out
of these contacts, jurisdiction may be sustained.
But if there is a minimum of contacts, and the
cause of action arises out of the contacts, it will
normally be fair and reasonable to sustain
jurisdiction. If there is a minimum of contacts and
the cause of action does not arise out of the
contacts, there will normally be no basis of
jurisdiction, since it is difficult to establish the
factors necessary to meet the fair and reasonable
test." '
"View-All, Inc. v. United Parcel Serv., 435 So. 2d 1198, 1201
(Ala. 1983) (quoting 2 J. Moore, Federal Practice,¶ 4.25, pp.
4-258 through 4-267 (2d ed. 1982) (emphasis added))."
I. General Personal Jurisdiction
With the above-cited caselaw regarding personal jurisdiction in
mind, we begin our analysis by examining whether TMX had "continuous
and systematic contacts" with Alabama sufficient to support the exercise
15
1200128
of general personal jurisdiction over it.1 Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9 (1984). Before the trial
court, Billingsley argued that, because TMX controlled the Web site
where its subsidiary, TitleMax of Alabama, offered services and
employment in Alabama, TMX had continuous and systematic contacts
with Alabama even though the operation of that Web site did not give rise
to Billingsley's claims against TMX.
"Doing business through a wholly owned subsidiary does
not, in and of itself, constitute doing business by the parent
corporation. Cf. Ex parte Baker, 432 So. 2d 1281 (Ala. 1983)
(comparing activities in Alabama of parent and subsidiary
corporations for purposes of determining venue); see also
Thompson v. Taracorp, Inc., 684 So. 2d 152, 158 (Ala. Civ. App.
1996) (concluding that trial court was correct in finding that
acts of subsidiary corporation in Alabama were insufficient to
impose personal jurisdiction over parent corporation)."
Ex parte Unitrin, Inc., 920 So. 2d 557, 561 (Ala. 2005). We cannot equate
TMX's control of the Web site that its subsidiary, TitleMax of Alabama,
used in its business operations with TMX's control of TitleMax of Alabama
1In response to TitleMax of Georgia and TMX's joint motion to
dismiss, Billingsley did not argue that the trial court had general personal
jurisdiction over TitleMax of Georgia.
16
1200128
for the purpose of determining whether the trial court had general
personal jurisdiction over TMX. The evidence before the trial court did
not show that TMX controlled the internal business operations and
decision-making of TitleMax of Alabama such that TitleMax of Alabama's
operations in Alabama should be imputed to TMX for the purpose of
determining whether the trial court had general personal jurisdiction over
TMX. Cf. Portera v. Winn Dixie of Montgomery, Inc., 996 F. Supp. 1418
(M.D. Ala. 1998)(applying Alabama's long-arm rule and holding that a
foreign corporation did not have sufficient contacts with Alabama to allow
the court to exercise general personal jurisdiction over the foreign
corporation in an action arising out of an employment dispute between the
plaintiff and the foreign corporation's Alabama subsidiary even though
the foreign corporation owned the subsidiary, employed plaintiff, who was
also employed by the subsidiary, and furnished general personnel
guidelines to the subsidiary).
Billingsley also relied on a consent order issued by the federal
Consumer Financial Protection Bureau and TMX's participation in a
workers' compensation case pending in the Etowah Circuit Court as
17
1200128
evidence of TMX's contacts with Alabama. The consent order was based
on allegations of abusive sales practices conducted in Alabama, Georgia,
and Tennessee, and, pursuant to the consent order, TMX, without
admitting wrongdoing, agreed to operate under certain conditions set out
by the Consumer Financial Protection Bureau. Although TMX agreed
to the federal agency's conditions regarding future operations in Alabama,
the consent order applied not only to TMX, but also to "its TitleMax,
TitleBucks, and InstaLoan operating subsidiaries, parents, and their
respective successors and assigns." The consent order does not prove that
TMX conducted the allegedly abusive sales practices in Alabama and,
thus, does not support a finding that TMX has sufficient contacts with
Alabama to subject it to general personal jurisdiction in this State.
In the workers' compensation action pending in the Etowah Circuit
Court, TMX is a defendant but did not challenge the court's personal
jurisdiction over it; however, TMX did not avail itself of Alabama courts
as a plaintiff. Cf., e.g., International Transactions, Ltd. v. Embotelladora
Agral Regionmontana S.A. de C.V., 277 F. Supp. 2d 654, 668 (N.D. Tex.
2002)("Under Texas law, '[v]oluntarily filing a lawsuit in a jurisdiction is
18
1200128
a purposeful availment of the jurisdiction's facilities and can subject a
party to personal jurisdiction in another lawsuit when the lawsuits arise
from the same general transaction.' Primera Vista S.P.R. de R.L. v. Banca
Serfin, S.A. Institucion de Banca Multiple Grupo Financiero Serfin, 974
S.W.2d 918, 926 (Tex.App. -- El Paso 1998, no pet.) (citing General
Contracting & Trading Co. v. Interpole, 940 F.2d 20, 22 (1st Cir.1991)).").
It may be that Billingsley's argument regarding TMX's participation
in the case pending in the Etowah Circuit Court is based on principles of
judicial estoppel. However, the principles of judicial estoppel do not apply
to bar TMX from challenging an Alabama court's jurisdiction over it, even
though TMX apparently waived any challenge to personal jurisdiction in
the Etowah Circuit Court case. Judicial estoppel applies to preclude a
party from assuming a position in a legal proceeding that is clearly
inconsistent with a position that party has previously asserted in a
separate legal proceeding, such that judicial acceptance of the inconsistent
position in the later proceeding would create the perception that either
the first or the second court has been misled. Ex parte First Alabama
Bank, 883 So. 2d 1236 (Ala. 2003). We cannot say that TMX's waiving a
19
1200128
challenge to personal jurisdiction in the Etowah Circuit Court case is
inconsistent with its position in this case when the circumstances out of
which the Etowah Circuit Court case arose are indisputably distinct from
those that form the basis of this action.
TMX's general contacts with Alabama, which are unrelated to the
claims against TMX, are insufficient to give the trial court in this case
general personal jurisdiction over TMX.
II. Specific Personal Jurisdiction
Billingsley next argued that the trial court had specific personal
jurisdiction over TitleMax of Georgia and TMX because, Billingsley
asserted, TitleMax of Georgia and TMX purposefully availed themselves
of the privilege of conducting activities in Alabama through their agents,
IAA and Attention to Detail. The United States Supreme Court, in
Daimler AG v. Bauman, 571 U.S. 117, 135 n.13 (2014), explained:
"Agency relationships, we have recognized, may be
relevant to the existence of specific jurisdiction. '[T]he
corporate personality,' International Shoe Co. v. Washington,
326 U.S. 310 (1945), observed, 'is a fiction, although a fiction
intended to be acted upon as though it were a fact.' Id., at 316.
See generally 1 W. Fletcher, Cyclopedia of the Law of
Corporations § 30, p. 30 (Supp. 2012-2013) ('A corporation is a
20
1200128
distinct legal entity that can act only through its agents.'). As
such, a corporation can purposefully avail itself of a forum by
directing its agents or distributors to take action there. See,
e.g., Asahi [Metal Indus. Co. v. Superior Court of California,
Solano Cnty.], 480 U.S. [102], at 112 [(1987)] (opinion of
O'Connor, J.) (defendant's act of 'marketing [a] product
through a distributor who has agreed to serve as the sales
agent in the forum State' may amount to purposeful
availment); International Shoe, 326 U.S., at 318 ('the
commission of some single or occasional acts of the corporate
agent in a state' may sometimes 'be deemed sufficient to
render the corporation liable to suit' on related claims). See
also Brief for Petitioner 24 (acknowledging that 'an agency
relationship may be sufficient in some circumstances to give
rise to specific jurisdiction')."
This Court has discussed the concept of agency in an action
concerning whether a trial court had specific personal jurisdiction over the
alleged principal:
" ' " 'The test for agency is whether the alleged
principal has retained a right of control over the
actions of the alleged agent.' " Ex parte Wild Wild
West Social Club, Inc., 806 So. 2d 1235, 1241 (Ala.
2001) (quoting Gist v. Vulcan Oil Co., 640 So. 2d
940, 942 (Ala. 1994)).... The party asserting the
existence of an agency relationship has the burden
of presenting sufficient evidence to prove the
existence of that relationship. See Ex parte Wild
Wild West Social Club, 806 So. 2d at 1242 (citing
Mardis v. Ford Motor Credit Co., 642 So. 2d 701,
704 (Ala. 1994)). Agency may not be presumed. Ex
parte Wild Wild West Social Club, 806 So. 2d at
21
1200128
1242 (citing Carlton v. Alabama Dairy Queen, Inc.,
529 So. 2d 921 (Ala. 1988)). The plaintiff must
present substantial evidence of an agency
relationship. Id.'
"Dickinson v. City of Huntsville, 822 So. 2d 411, 416 (Ala.
2001)."
Worthy v. Cyberworks Techs., Inc., 835 So. 2d 972, 980 (Ala.
2002)(holding a telemarketing company did not have a right of control
over a Web-site-design company that had contracted with the
telemarketing company to build the Web site, and, thus, that the Web-
site-design company and its president were not agents of the
telemarketing company for purposes of determining whether the trial
court had specific personal jurisdiction over the telemarketing company
in consumers' fraud action against the telemarketing company).
In this case, there is no evidence to support a finding that an agency
relationship exists between either TitleMax of Georgia or TMX and IAA
or Attention to Detail. There is no evidence suggesting that either
TitleMax of Georgia or TMX controlled the means or methods of IAA's
storage of the vehicle or Attention to Detail's transportation of the vehicle.
Instead, it appears that IAA and Attention to Detail are independent
22
1200128
contractors. See Ex parte Edgetech I.G., Inc., 159 So. 3d 629 (Ala.
2014)(holding that independent sales contractor was not employed by
manufacturer and, thus, that manufacturer's contacts with Alabama were
insufficient to support specific personal jurisdiction over manufacturer).2
2While this case was pending, the United States Supreme Court
decided Ford Motor Co. v. Montana Eighth Judicial District Court, 592
U.S. ___, 141 S.Ct. 1017 (2021). Ford Motor concerned two cases against
Ford arising out of automobile accidents in Montana and Minnesota that
involved a certain model of vehicle manufactured by Ford. Ford did
substantial business in both states, including advertising, selling, and
servicing the model of the cars the suits claimed were defective, and did
not dispute that it had purposefully availed itself of the privilege of
conducting activities in both states. However, Ford contended that
specific jurisdiction in those states was improper because the specific cars
involved in the accidents had been purchased, manufactured, and
designed out of state. Ford argued that, under Bristol-Myers Squibb Co.
v. Superior Court of California, San Francisco County, 582 U.S. ___, 137
S.Ct. 1773 (2017), specific jurisdiction requires a "causal link" between
the defendant's contacts with a forum and the plaintiff's claims, which was
not present because the cars involved in the accidents were not designed,
manufactured, or first sold in the states where the suits were brought.
The Supreme Court rejected this argument, finding specific jurisdiction
exists when a company "serves a market for a product in the forum State
and the product malfunctions there." Ford Motor, 592 U.S. at ___, 141
S.Ct. at 1027. The Supreme Court's most common formulation of the
causal-connection rule demands that the suit " 'arise out of or relate to the
defendant's contacts with the forum.' " Ford Motor, 592 U.S. at ___, 141
S.Ct. at 1026 (quoting Bristol Myers, 592 U.S. at ___, 137 S.Ct. at 1780).
The Court stated that the absence of finding specific jurisdiction without
showing that a claim "arises out of" a defendant's contacts with a forum
23
1200128
Conclusion
For the above-stated reasons, we grant TitleMax of Georgia and
TMX's mandamus petition and direct the Talladega Circuit Court to
vacate its order denying TitleMax of Georgia and TMX's joint motion to
dismiss and to enter an order granting the motion on the basis that the
trial court lacks personal jurisdiction over TitleMax of Georgia and TMX.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, and
Stewart, JJ., concur.
Mitchell, J., recuses himself.
"does not mean anything goes" and that "the phrase 'relate to'
incorporates real limits." Ford Motor, 592 U.S. at ___, 141 S.Ct. at 1026.
The present case is distinguishable from Ford Motor because Ford Motor
did not involve the issue of agency.
24 | May 21, 2021 |
70cc3bd9-7810-4491-8927-33969a1c9526 | Ex parte Quandarius Martinez Frazier. | N/A | 1200380 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200380
Ex parte Quandarius Martinez Frazier. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re:
Quandarius Martinez Frazier v. State of Alabama) (Jefferson Circuit Court:
CC-18-492; CC-18-493; Criminal Appeals :
CR-18-1010).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
c6d290cc-c4d1-4cc8-ac67-b8e83f9a1ccb | Ex parte Forrest Bullin. | N/A | 1200375 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200375
Ex parte Forrest Bullin. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Forrest Bullin v. State of
Alabama) (Baldwin Circuit Court: CC18-900203; CC18-1891; Criminal
Appeals :
CR-18-1205).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Parker, C.J. -
Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
f2ceb451-12b3-4dce-920d-8153ca5eb739 | Ex parte F.L. | N/A | 1200193 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200193
Ex parte F.L. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: F.L. v. Calhoun County Department of
Human Resources) (Calhoun Juvenile Court: JU-17-482.02; Civil Appeals :
2190389).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on May 14, 2021:
Writ Quashed. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
6247db47-7c36-464a-a765-db13477aa2fe | Ex parte K.B. | N/A | 1200440 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200440
Ex parte K.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: K.B. v. Geneva County Department of Human
Resources) (Geneva Juvenile Court: JU-18-157.02; Civil Appeals :
2190706).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
c2712c90-773d-47b7-8842-6567cfd743d3 | Ex parte Jairo Uriel Pal. | N/A | 1200399 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200399
Ex parte Jairo Uriel Pal. PETITION FOR W
RIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Jairo Uriel Pal v. State of
Alabama) (Etowah Circuit Court: CC-14-1579.60; Criminal Appeals :
CR-19-1094).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
58e0c1cc-44d7-43cd-be7f-521563eb2f1d | Reagan v. Alabama Alcoholic Beverage Control Board | N/A | 1200213 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1200213
_________________________
Cary Reagan, Jr.
v.
Alabama Alcoholic Beverage Control Board; Mac H. Gipson,
individually and in his official capacity as administrator for the
Alabama Alcoholic Beverage Control Board; Robert W. Lee,
individually and in his official capacity as chairman of the
Alabama Alcoholic Beverage Control Board; Samuetta H. Drew,
individually and in her official capacity as a member of the
Alabama Alcoholic Beverage Control Board; Michael Ingram,
M.D., individually and in his official capacity as a member of
the Alabama Alcoholic Beverage Control Board; Alabama
Department of Revenue; and City of Tuscaloosa
Appeal from Montgomery Circuit Court
(CV-18-901991)
1200213
SELLERS, Justice.
Cary Reagan, Jr., appeals from a judgment of the Montgomery
Circuit Court dismissing his action against the Alabama Department of
Revenue ("the Department"); the Alabama Alcoholic Beverage Control
Board ("the Board"); the members of the Board, including its chairman;
the administrator of the Board; and the City of Tuscaloosa.1 The
defendants' motions to dismiss were based principally on the doctrine of
sovereign or State immunity. We affirm the trial court's judgment.
1Reagan did not name either the Department or the City of
Tuscaloosa as a defendant in his complaint. Those parties, however,
intervened as additional defendants. The Department is an interested
party because it is charged with "administering" the sales taxes at issue
in this case and receives a portion of those taxes after they are collected
from customers. The City of Tuscaloosa is an interested party because it,
along with other municipalities in this State, receives a portion of the
taxes collected.
The individual defendants were identified in Reagan's complaint as
follows: "Mac H. Gipson, in his official capacity as Administrator for the
Alabama Alcoholic Beverage Control Board and individually"; "Robert W.
Lee, in his official capacity as Chairman of the Alabama Alcoholic
Beverage Control Board and individually"; "Samuetta H. Drew, in her
official capacity as Board Member of the Alabama Alcoholic Beverage
Control Board and individually"; and "Michael Ingram, M.D., in his official
capacity as Board Member of the Alabama Alcoholic Beverage Control
Board and individually."
2
1200213
Reagan claims that the Board and the Department have been
improperly calculating and collecting sales taxes from customers of retail
liquor stores operated by the Board. He asked the trial court to certify a
class consisting of himself and other customers of the Board's stores and
to direct the defendants to deposit the allegedly overpaid taxes into a
court-approved account for the benefit of the class members, to be
administered by the trial court and from which attorney fees presumably
would be paid.
Multiple tax statutes apply to the Board's sale of spirituous and
vinous liquors. Sections 28-3-200 through 28-3-205, Ala. Code 1975,
impose taxes in the total amount of 56% of "the selling price" of such
liquors ("the state liquor taxes"). In addition, § 40-23-2(1), Ala. Code 1975,
Alabama's general sales-tax statute, applies to retail sales of tangible
personal property in Alabama (including sales by the Board), and imposes
a 4% tax on "the gross proceeds of sales." Finally, § 28-3-280, Ala. Code
1975, imposes "an additional state sales tax in the amount of two percent
of the retail price, excluding taxes, on the sales of alcoholic beverages sold
at retail" by the Board.
3
1200213
Reagan asserts that the Board and the Department have been
improperly calculating the amount owed under the 2% tax imposed by §
28-3-280 and the 4% tax imposed by § 40-23-2(1). Specifically, Reagan
asserts that the Board and the Department calculate the amounts owed
pursuant to those statutes by adding a total of 6% to an amount customers
are charged that already includes the 56% state liquor taxes imposed
under §§ 28-3-200 through 28-3-205. According to Reagan, the 4% tax and
the 2% tax should be calculated using a tax base that excludes the state
liquor taxes. In other words, he asserts that the Board should collect from
customers a total of 6% of only the amount the Board pays to purchase a
product from its suppliers plus the retail markup added by the Board.2
In his complaint, Reagan sought a judgment declaring that the sales
taxes in question have been, and are being, improperly calculated. He
also asserted causes of action alleging fraud and "misfeasance,
malfeasance and nonfeasance of duty" on the part of the individual
2In his complaint, Reagan asserted alternatively that the 4% sales
tax imposed by § 40-23-2(1) does not apply at all to sales by the Board at
its retail stores. He appears to have abandoned that assertion on appeal.
4
1200213
defendants. He asked the trial court to direct the defendants to deposit
the allegedly excessive taxes they have collected into a court-approved
account "until such funds are returned to [Reagan] and class members."
He also asked the trial court to "[e]stablish a procedure by which
purchasers ... from [Board] retail stores can make a request for the monies
illegally, improperly and wrongfully collected." Finally, he sought an
award of attorney fees.
The defendants filed motions to dismiss, which the trial court
granted. Reagan appealed. The applicable standard of review requires us
to view the allegations of Reagan's complaint most strongly in his favor
and to determine whether, based on those allegations, Reagan can prove
any set of circumstances that would entitle him to relief. Birmingham
Broad. (WVTM-TV) LLC v. Hill, 303 So. 3d 1148, 1155 (Ala. 2020); Lyons
v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala. 2003).
Initially, we note that Reagan argues on appeal that the operative
complaint in this case is an amended complaint he filed in the trial court,
in which he added a claim asserting that the defendants had violated the
Alabama Administrative Procedure Act, Ala. Code 1975, § 41-22-1 et seq.
5
1200213
The amended complaint was filed nearly a year and a half after this action
was commenced and after the parties had submitted substantial briefing
and had provided oral arguments in support of, and opposition to, the
defendants' motions to dismiss the original complaint. Rule 15(a), Ala. R.
Civ. P., provides that a pleading may be amended without leave of court
"at any time more than forty-two (42) days before the first setting of the
case for trial." After that window closes, "a party may amend a pleading
only by leave of court, and leave shall be given only upon a showing of
good cause." Id. The first trial date set in this action was August 26,
2019. Reagan attempted to amend his complaint in April 2020, obviously
well after expiration of the deadline set out in Rule 15(a).
Reagan requested leave of the trial court to amend his complaint;
however, the trial court dismissed the action without ruling on Reagan's
motion for leave to amend, thus effectively denying it. Reagan made no
attempt to establish good cause for his delay or to otherwise establish
good cause for allowing the amendment. He has not demonstrated on
appeal that the trial court erred in refusing to grant him leave to amend.
See generally Ex parte Liberty Nat'l Life Ins. Co., 858 So. 2d 950, 953
6
1200213
(Ala. 2003) (indicating that, if an amended pleading is filed after the 42-
day deadline in Rule 15(a) expires, "the trial court is free to deny a party
leave to amend ... unless the party can demonstrate 'good cause' ");
Blackmon v. Nexity Fin. Corp., 953 So. 2d 1180, 1189 (Ala. 2006) ("[A]n
unexplained undue delay in filing an amendment when the party has had
sufficient opportunity to discover the facts necessary to file the
amendment earlier is also sufficient grounds upon which to deny the
amendment."). Accordingly, we consider only Reagan's original complaint
in evaluating the propriety of the trial court's order granting the
defendants' motions to dismiss.
In support of their motions, the defendants argued principally that
this action is barred by sovereign immunity. They relied primarily on this
Court's decision in Patterson v. Gladwin Corp., 835 So. 2d 137 (Ala. 2002).
In Patterson, the plaintiffs sought to represent a class of foreign
corporations that had paid Alabama franchise taxes under what were
eventually determined to be unconstitutional tax statutes. They sought
tax refunds from the Department of up to $1 billion. The trial court in
Patterson certified the requested class, and the commissioner of the
7
1200213
Department appealed, arguing that the action was barred by sovereign
immunity.
As the Court in Patterson noted art. I, § 14 Ala. Const. 1901 (Off.
Recomp.), provides that " 'the State of Alabama shall never be made a
defendant in any court of law or equity.' " 835 So. 2d at 142. For purposes
of § 14, "[a]n action is one against the state when a favorable result for the
plaintiff would directly affect a contract or property right of the State, or
would result in the plaintiff's recovery of money from the state." Shoals
Cmty. Coll. v. Colagross, 674 So. 2d 1311, 1314 (Ala. Civ. App. 1995).
"The wall of immunity erected by § 14 is nearly impregnable." Patterson,
835 So. 2d at 142. That wall cannot be bypassed indirectly by " 'suing [the
state's] officers or agents in their official capacity, when a result favorable
to [the] plaintiff would be directly to affect the financial status of the state
treasury.' " Id. (quoting State Docks Comm'n v. Barnes, 225 Ala. 403, 405,
143 So. 581, 582 (1932)). An action against the State within the meaning
of § 14 "presents a question of subject-matter jurisdiction, which cannot
be waived or conferred by consent." Patterson, 835 So. 2d at 142-43.
8
1200213
The Court in Patterson concluded that "a judgment in favor of the
class, which seeks tax refunds totaling approximately $1 billion, would
'affect the financial status of the state treasury.' " 835 So. 2d at 143
(quoting State Docks Comm'n, 225 Ala. at 405, 143 So. at 582)). Thus, the
Court held, the plaintiffs' claims in Patterson were barred by sovereign
immunity and the trial court therefore never acquired subject-matter
jurisdiction over the action. 835 So. 2d at 154 ("[W]e hold that the
Taxpayers' class action seeking a refund of franchise taxes paid pursuant
to Alabama's invalid statutory scheme is an action against the State as
that concept is expressed in § 14. ... Because the circuit court was without
jurisdiction to entertain this action, we vacate the trial court's class-
certification order and dismiss the action.").3
3The Alabama Taxpayers' Bill of Rights and Uniform Revenue
Procedures Act ("the TBOR"), § 40-2A-1 et seq., Ala Code 1975, provides
taxpayers with a means by which to seek tax refunds from the
Department. Patterson, 835 So. 2d at 141. See also Ex parte State Dep't
of Revenue, 247 So. 3d 378, 387 (Ala. Civ. App. 2016) (opinion on
application for rehearing) ("The TBOR constitutes the exclusive means for
obtaining a tax refund."). In Patterson, the Court suggested that, had the
taxpayers in that case sought, and been denied, a tax refund pursuant to
the administrative procedures set out in the TBOR, then the trial court
could have obtained subject-matter jurisdiction over an appeal from the
9
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In the present case, the defendants correctly argued in support of
their motions to dismiss that, like the plaintiffs in Patterson, Reagan
seeks to represent a class of taxpayers in order to pursue refunds of taxes
paid to the State. Thus, they asserted, if Reagan prevails, this action
clearly will affect the financial status of the treasury and is therefore
barred by sovereign immunity.
The defendants acknowledged in their motions to dismiss that
Reagan's complaint requests a judgment declaring that the referenced
taxes have been improperly collected, and they conceded that sovereign
immunity does not necessarily bar a claim for a declaratory judgment.
See Aland v. Graham, 287 Ala. 226, 230, 250 So. 2d 677, 679 (1971)
(noting that sovereign immunity does not bar "[a]ctions brought under the
Declaratory Judgments Act ... seeking construction of a statute and how
it should be applied in a given situation"). According to the defendants,
adverse administrative decision. 835 So. 2d at 141. The taxpayers in
Patterson, however, had failed to properly invoke the TBOR and, instead,
had attempted to prosecute a direct action for a tax refund in the circuit
court. Likewise, Reagan, to his detriment, did not avail himself of the
remedies set out in the TBOR before commencing this action.
10
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however, the "true nature" of Reagan's action is a suit seeking a monetary
award that will affect the State treasury. They argued to the trial court
that, in essence, Reagan merely requests a refund of sales taxes he alleges
were improperly calculated and collected.
In support of their argument, the defendants directed the trial court
to Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479 (1942), and
Lyons v. River Road Construction, Inc., 858 So. 2d 257 (Ala. 2003). In
Curry, the Court acknowledged that a declaratory-judgment action is not
barred by sovereign immunity if it seeks only guidance as to how the law
should be interpreted and applied:
"Considering the true nature of a suit which is
declaratory of controversial rights and seeks no other relief,
but only prays for guidance both to complainant and the State
officers trying to enforce the law so as to prevent them from
making injurious mistakes through an honest interpretation
of the law, and thereby control the individual conduct of the
parties, albeit some of them may be acting for the State, it is
our opinion that a suit between such parties for such relief
alone does not violate section 14 of the Constitution."
242 Ala. at 381, 6 So. 2d at 481 (emphasis added). The defendants in the
present case assert that Reagan seeks more than guidance regarding how
11
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the tax statutes at issue should be interpreted; rather, they assert, he
seeks to recover funds from the State.
In Lyons, the Court held that an action against the director of the
Alabama State Port Authority ("the Port Authority") was barred by
sovereign immunity even though the action was framed as one requesting
a declaratory judgment. The plaintiff in Lyons, a subcontractor, had
contracted with a general contractor to perform dredging work in
connection with the general contractor's construction of a terminal at the
Port of Mobile. In preparing its bid for the proposed project, the plaintiff
relied on a report that had been commissioned by the Port Authority,
which indicated that the work would require the dredging of only sand
and clay. After beginning the job, however, the plaintiff encountered a
substantial amount of rock that had to be removed, which increased costs
significantly. The plaintiff sued the director of the Port Authority, seeking
compensation for the increased costs.
In response to an argument that the action in Lyons was barred by
sovereign immunity, the plaintiff asserted that it merely sought a
declaratory judgment determining "its rights relative to the statutory
12
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powers granted the port authority and its director in the applicable
sections of Title 33, Code of Alabama 1975." 858 So. 2d at 263. This
Court, however, concluded that the plaintiff was "attempting to
characterize its claim as a declaratory-judgment action[] when it [was]
nothing more than an action for damages." Id.
Reagan, in addition to seeking a declaration of rights, also seeks
payment of funds from the State treasury in the form of tax refunds and
attorney fees. According to the Department's motion to dismiss,
"[b]ecause [Reagan's] complaint seeks monetary relief in addition to
seeking declaratory relief, it constitutes an action that impermissibly
seeks funds from the state treasury." Reagan's complaint, in asking for
a judgment declaring that the Department and the Board have been
improperly calculating the sales taxes owed on purchases from the Board's
retail stores, also asked the trial court to direct the defendants to deposit
the allegedly over-collected taxes into a court-approved bank account
"until such funds are returned to [Reagan] and class members." Later in
his complaint, Reagan asked the trial court to "[e]stablish a procedure by
which purchasers of liquors and vinous liquors from [the Board's] retail
13
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stores can make a request for the monies illegally, improperly and
wrongfully collected." In addition, as the Department and the City of
Tuscaloosa point out in their brief to this Court, Reagan later filed a
motion asking the trial court to issue an order directing the defendants to
hold disputed sales-tax revenue in trust pending resolution of this action.
As the appellant, Reagan has the burden of demonstrating that the
trial court erred to reversal by concluding that Reagan's action is barred
by sovereign immunity. Johnson v. Life Ins. Co. of Alabama, 581 So. 2d
438, 444 (Ala. 1991). He has failed to satisfy that burden. In his briefs to
this Court, Reagan makes no mention of Patterson, which the defendants
relied on in arguing to the trial court that Reagan's direct action seeking
a tax refund implicates sovereign immunity. In his opening brief, Reagan
simply provides a quotation from Ex parte Moulton, 116 So. 3d 1119 (Ala.
2013), which lists certain "exceptions" to sovereign immunity, including
requests for declaratory judgments. Reagan, however, provides no
detailed discussion of those "exceptions."4
4The "exceptions" to sovereign immunity noted in Moulton are better
described as actions that are not against the State for purposes of
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Nor does Reagan clearly address the defendants' argument to the
trial court that, even though his complaint requests a declaratory
judgment, the "true nature" of his action is one for the recovery of a
monetary award against the State. He does not cite or discuss Lyons, on
which the defendants relied in arguing that Reagan essentially has recast
an action seeking a money judgment as a declaratory-judgment action.5
sovereign immunity. Moulton, 116 So. 3d at 1132.
5In support of their motions to dismiss, the defendants also relied on
Ex parte Alabama Department of Transportation, 978 So. 2d 17, 25 (Ala.
2007), for the proposition that sovereign immunity does not bar a
declaratory-judgment action, but only if it "seeks no relief other than" how
a statute should be interpreted and applied, and Moody v. University of
Alabama, 405 So. 2d 714, 717 (Ala. Civ. App. 1981), for the proposition
that,
"while an action for declaratory judgment against the state or
its agencies which seeks the interpretation of a statute is
generally not prohibited, Druid City Hospital Board v.
Epperson, [378 So. 2d 696 (Ala. 1979)], such an action is
prohibited when, as here, a result favorable to the plaintiff
would directly affect a contract or property right of the state."
The defendants also pointed to precedent indicating that a claim for
attorney fees, to be paid from the State treasury, is barred by sovereign
immunity. See Ex parte Bentley, 116 So. 3d 201, 204 (Ala. 2012). In his
briefs to this Court, Reagan does not discuss Ex parte Alabama
Department of Transportation, Druid City Hospital Board, or Bentley.
15
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As for any other "exception" to sovereign immunity that might apply in
this case, such as, for example, actions brought to compel State officials
to perform their legal duties or to enjoin them from engaging in
fraudulent acts, Reagan simply identifies those "exceptions" by quoting
Moulton and does not provide persuasive argument in support of their
application to this case.6
6In his reply brief, Reagan suggests that his complaint does not seek
tax refunds at all. Rather, he claims, he only requested the trial court "to
set funds aside and to set up a system to return funds to the purchasers
who had inappropriately paid the funds," who could then "submit a
request for [a] refund." According to Reagan, "[t]he [trial court] might
decide to proceed through a TBOR type procedure or some other fair
procedure." First, Reagan did not articulate this argument in his opening
brief on appeal, and this Court will not reverse a trial court's judgment
based on grounds presented to us for the first time in a reply brief.
Melton v. Harbor Pointe, LLC, 57 So. 3d 695, 696 n.1 (Ala. 2010). Second,
Reagan does not provide sufficient discussion or legal authority in support
of his argument that asking the trial court to direct the defendants to
deposit State-owned funds into a court-approved bank account, which
could then be doled out by the trial court, is not an action for a tax refund
that, like Patterson, implicates sovereign immunity. As a final matter, we
note that Reagan purported to sue the members of the Board and the
administrator of the Board in their individual, as well as their official,
capacities. He does not, however, expressly discuss or articulate a
persuasive argument regarding how his suing the individual defendants
in their individual capacities affects the application of sovereign-immunity
principles to his claims. We note that it does not appear that Reagan
seeks to recover any funds from the members of the Board and its
16
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In sum, Reagan fails to acknowledge that the TBOR provides the
exclusive means of seeking a refund of taxes without violating principles
of sovereign immunity. Patterson. And, he has not established that his
request for a declaratory judgment is anything more than a claim for a
refund of sales taxes and an attempt to mask the substance of the
monetary relief he seeks. Thus, he has not demonstrated that the trial
court erred by concluding that this action is barred by sovereign
immunity, and, therefore, we affirm the trial court's judgment. See
generally City of Wetumpka v. Alabama Power Co., 297 So. 3d 367, 372
(Ala. 2019) (affirming a trial court's dismissal of an action because the
trial court lacked subject-matter jurisdiction over that action); First State
Bank of Altoona v. Bass, 406 So. 2d 896, 897 (Ala. 1981) (affirming a trial
court's dismissal of an action because the action was barred by sovereign
immunity).
administrator personally; the monetary award he seeks is solely from the
State.
17
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AFFIRMED.
Bolin, Bryan, Mendheim, and Stewart, JJ., concur.
Shaw and Mitchell, JJ., concur in the result.
Parker, C.J., and Wise, J., concur in the result in part and dissent
in part.
18
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SHAW, Justice (concurring in the result).
I concur in the result. I do not believe that the appellant, Cary
Reagan, Jr., has demonstrated that the trial court erred in dismissing his
action challenging the collection of various taxes on alcoholic beverages.
There are numerous opinions discussing the strict and absolute
immunity provided to the State and State officials by Ala. Const. 1901
(Off. Recomp.), art. I, § 14, which states: "That the State of Alabama shall
never be made a defendant in any court of law or equity." There is no
need to repeat the analysis in those cases here. It is instead sufficient to
note that § 14 provides a high bar, and the exceptions to the section are
narrow.7
To the extent that the trial court held that Reagan's action as to the
City of Tuscaloosa was barred by State or sovereign immunity, I note that
municipalities are usually not afforded immunity under § 14. Health Care
7Certain categories of actions are described as "exceptions" to § 14
immunity; however, those actions are not actually exceptions to § 14
immunity, which is absolute, but are instead not considered to be actions
against the State for purposes of § 14. Alabama Dep't of Transp. v.
Harbert Int'l, Inc., 990 So. 2d 831, 840 (Ala. 2008).
19
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Auth. for Baptist Health v. Davis, 158 So. 3d 397, 408-09 (Ala. 2013)
("[N]either counties nor municipalities nor private entities are part of the
State or enjoy State immunity."). However, a municipality might be
entitled to § 14 immunity if it acts as an agent of the State. Ex parte
Tuscaloosa Cnty., 796 So. 2d 1100, 1103 (Ala. 2000) ("[W]hen a county or
municipality acts as an agent of the state, it is entitled to share in the
state's absolute immunity."). Reagan does not specifically address
whether § 14 applies to the City of Tuscaloosa; therefore, any error on this
issue is waived. Blevins v. Hillwood Office Ctr. Owners' Ass'n, 51 So. 3d
317, 322 (Ala. 2010).8
8Further, State agencies are absolutely immune from suit, and the
various exceptions to State immunity do not apply to actions against those
agencies:
"[A] State agency [] is absolutely immune from suit. Ex parte
Alabama Dep't of Transp., 978 So. 2d 718, 721 (Ala. 2007)
('ALDOT is a State agency ... and, therefore, is absolutely
immune from suit ....'). Generally, 'any exceptions to that
immunity extend only to suits naming the proper State official
in his or her representative capacity.' Ex parte Alabama Dep't
of Transp., 978 So. 2d 17, 22 (Ala. 2007) (emphasis added)."
Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831, 840 (Ala.
2008). Thus, it would appear that Reagan could allege no claims against
20
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Despite the immunity provided by § 14, in certain limited
circumstances State officials can be compelled by a court to pay to
plaintiffs money held by the State treasury:
"[T]he trial court can generally, by writ of mandamus, order
State officers in certain situations to pay liquidated damages
or contractually specified debts. The payment of these certain,
liquidated amounts would be only a ministerial act that State
officers do not have the discretion to avoid. [Alabama Agric. &
Mech. Univ. v.] Jones, 895 So. 2d [867] at 878-79 [(Ala. 2004)];
[State Bd. of Admin. v.] Roquemore, 218 Ala. [120] at 124, 117
So. [757] at 760 [(1928)]. Furthermore, although the payment
of the funds 'may ultimately touch the State treasury,' Horn v.
Dunn Bros., 262 Ala. 404, 410, 79 So. 2d 11, 17 (1955), the
payment does not 'affect the financial status of the State
treasury,' Lyons [v. River Road Constr., Inc.], 858 So. 2d [257]
at 261 [(Ala. 2003)], because the funds 'do not belong to the
State,' Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950 So.
2d 1180, 1190 n.6 (Ala. Civ. App. 2005) (two-judge opinion),
and the State treasury 'suffers no more than it would' had the
State officers originally performed their duties and paid the
debts. Horn, 262 Ala. at 410, 79 So. 2d at 17. The trial court
may not, however, award retroactive relief in the nature of
unliquidated damages or compensatory damages, because such
relief affects a property or contract right of the State. Stark [v.
Troy State Univ., 514 So. 2d 46 (Ala. 1987)]; Williams [v.
Hank's Ambulance Serv., Inc., 699 So. 2d 1230 (Ala. 1997)];
Roquemore; J.B. McCrary Co. v. Brunson, 204 Ala. 85, 86, 85
So. 396, 396 (1920) ('mandamus will not lie to compel the
the Alabama Alcoholic Beverage Control Board.
21
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payment of unliquidated claims'); and Vaughan [v. Sibley, 709
So. 2d 482 (Ala. Civ. App. 1997)]."
Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So. 2d 831, 845-46
(Ala. 2008). Thus, § 14 does not per se bar all relief that requires
disbursement of money by the State. One such circumstance includes
when State officials are required by statute to pay certain sums and have
no discretion to do otherwise. Ex parte Bessemer Bd. of Educ., 68 So. 3d
782, 790 (Ala. 2011) (holding that an action seeking to require State
officials to adhere to a statutorily prescribed salary was not barred by §
14; the amount of salary required to be paid involved "obedience to the
statute," did "not involve any discretion," and the legal duty to pay was a
"ministerial act").
I am not convinced that, when it is clearly established that taxes
have been collected in violation of statute, the amount of the funds are
certain, State officials have no legal right or discretion to retain such tax
funds, and the payment of a refund would be only a ministerial act
required by law, an action seeking return of the funds would necessarily
violate § 14. However, Reagan provides on appeal no specific analysis of
22
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this complex issue. Therefore, to the extent that his action sought
damages or the return of tax funds, I agree that § 14 barred such claims.
A declaratory-judgment claim against a State official can also fall
under an exception to § 14 immunity.9
"State immunity does not bar '[a]ctions brought under
the Declaratory Judgments Act, [§ 6-6-222 et seq., Ala. Code
1975,] seeking construction of a statute and how it should be
applied in a given situation.' Aland v. Graham, 287 Ala. 226,
230, 250 So. 2d 677, 679 (1971); Curry v. Woodstock Slag
Corp., 242 Ala. 379, 381, 6 So. 2d 479, 480-81 (1942) (an action
seeking to construe the law and direct the parties to what is
required of them under a given set of facts does not violate the
doctrine of State immunity); § 6-6-222, Ala. Code 1975. ...
"In Curry, supra, this Court described an action seeking
a declaratory judgment:
" 'Considering the true nature of a suit which
is declaratory of controversial rights and seeks no
other relief, but only prays for guidance both to
complainant and the State officers trying to enforce
the law so as to prevent them from making
9Again, this exception to § 14 immunity applies only in suits against
State agents and not to State agencies. Harbert, 990 So. 2d at 841 ("The
purpose of the so-called 'exception' to § 14 allowing declaratory-judgment
actions is to give direction to State officers. Consistent with the other
'exceptions' to § 14 immunity, we hold that only State officers named in
their official capacity -- and not State agencies -- may be defendants in
such proceedings.").
23
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injurious
mistakes
through
an
honest
interpretation of the law, and thereby control the
individual conduct of the parties, albeit some of
them may be acting for the State, it is our opinion
that a suit between such parties for such relief
alone does not violate section 14 of the
Constitution.'
"242 Ala. at 381, 6 So. 2d at 481."
Lyons v. River Road Constr., Inc., 858 So. 2d 257, 262-63 (Ala. 2003).
However, this exception is not unlimited:
"Additionally, the fact that an action seeks a declaratory
judgment and thus purportedly falls within an exception to §
14 does not necessarily open the doors of the State treasury to
legal attack. The exception afforded declaratory-judgment
actions under § 14 generally applies only when the action
seeks 'construction of a statute and how it should be applied in
a given situation,' Aland v. Graham, 287 Ala. 226, 230, 250 So.
2d 677, 679 (1971), and not when an action seeks other relief.
Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So. 2d 479
(1942) (holding that a declaratory-judgment action that seeks
only a declaration to construe the law and direct the parties,
and no other relief, does not violate § 14)."
Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1211 (Ala. 2006).
Count I of Reagan's complaint seeking a declaratory judgment
alleged that certain alcohol taxes were being incorrectly applied and
requested that the defendants be ordered to stop imposing certain taxes,
24
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to be prohibited from distributing collected tax funds, and to be required
to deposit the collections in a special account for distribution to Reagan
and purported class members. It sought more than a mere declaration of
the law to guide State officials. Although Reagan's brief on appeal cites
the declaratory-judgment exception to § 14 as part of a long quotation of
caselaw discussing the various exceptions to § 14 immunity and states
that his case was brought under the Declaratory Judgment Act, § 6-6-222
et seq., Ala. Code 1975, "seeking statutory construction of how sales tax
is being applied to the sale of alcoholic beverages," he provides no
authority discussing the parameters of the declaratory-judgment
exception and no explanation of how his action falls within them. Given
the stringent barrier to suits against the State and State officials provided
by § 14, more than a simple invocation of an exception to such immunity
is required to allow an action to proceed. Reagan does not pair down the
impermissible portions found in Count I and recast his claim to comply
with the exception, and, thus, he has not convinced me that this exception
to § 14 immunity applies in this case.
Mitchell, J., concurs.
25
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PARKER, Chief Justice (concurring in the result in part and dissenting in
part).
I believe that Cary Reagan, Jr.'s request for a tax refund is barred
by State or sovereign immunity. I do not believe, however, that his entire
action -- including his request for declaratory and injunctive relief against
State officers -- is barred.
" ' " ' [I]n determining whether an action against a state officer is
barred by § 14, the Court considers the nature of the suit or the relief
demanded ....' " ' " Anthony v. Datcher, [Ms. 1190164, Sept. 4, 2020] ___ So.
3d ___, ___ (Ala. 2020) (quoting Barnhart v. Ingalls, 275 So. 3d 1112, 1122
(Ala. 2018), quoting in turn Alabama Dep't of Transp. v. Harbert Int'l,
Inc., 990 So. 2d 831, 839 (Ala. 2008)) (emphasis added). Requests for
damages are barred, but requests for declaratory and injunctive relief are
not. Thus, when a plaintiff seeks several remedies against State officers,
the court must determine whether § 14 State immunity bars each remedy.
See Alabama State Univ. v. Danley, 212 So. 3d 112, 124 (Ala. 2016)
(holding that State immunity barred plaintiff's claims for damages but not
for injunctive relief); Latham v. Department of Corr., 927 So. 2d 815, 821
26
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(2005) (holding that State immunity barred claims for backpay but not for
declaratory and injunctive relief); Ex parte Russell, 31 So. 3d 694 (Ala.
Civ. App. 2009) (holding that State immunity barred claim for refund of
taxes but not for declaratory and injunctive relief regarding proper
calculation of taxes).10
In his complaint, Reagan requested not only the refund-related
remedies on which the main opinion focuses, but also a judgment
declaring the correct application of the alcohol taxes and an injunction
requiring the State-officer defendants, in their official capacities, to follow
that application going forward. State immunity does not bar that request
for declaratory and injunctive relief. See Danley, supra; Latham; supra.
The State defendants, in arguing that the "true nature" of Reagan's
action is solely for a refund, rely on Curry v. Woodstock Slag Corp., 242
Ala. 379, 6 So. 2d 479 (1942). In that case, the plaintiff sued only for a
10State immunity bars requests for injunctions against the State
itself and State agencies. Ex parte Alabama Dep't of Fin., 991 So. 2d 1254,
1257 (Ala. 2008). However, § 14 does not bar requests for injunctions
against State officers in their official capacities. Ex parte Moulton, 116 So.
3d 1119, 1141 (Ala. 2013).
27
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judgment declaring whether a sales tax applied to a particular set of facts.
242 Ala. at 380, 6 So. 2d at 480. This Court held that State immunity did
not apply, stating:
"An officer is often confronted with the problem[s] of what the
law means which requires certain acts on his part and [of]
whether [that law] is valid. ...
"When such a controversy arises between him and an
individual the Declaratory Judgments Act furnishes the
remedy for or against him. When it is only sought to construe
the law and direct the parties ... what it requires of them
under a given state of facts, to that extent it does not violate
section 14, Constitution. ...
"....
"All the cases on which [the plaintiff] relies have other
elements in addition to a declaration of rights under the law,
which were held to affect the interests of the State in a direct
way: Such as those seeking an injunction of the collection of
taxes ....
"....
"Considering the true nature of a suit which is
declaratory of controversial rights and seeks no other relief, ...
it is our opinion that a suit between such parties for such relief
alone does not violate section 14 of the Constitution."
242 Ala. at 381, 6 So. 2d at 480-81.
28
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To the extent that Curry stands for the proposition that joining a
request for other relief with a request for declaratory relief renders the
whole action subject to State immunity, I believe that Curry has been
overruled. More recent cases, for example Danley and Latham, have
analyzed each request for relief separately, rather than lumping them all
together. And the more recent cases do so for good reason. If all forms of
relief are analyzed together for purposes of State immunity, plaintiffs who
want both monetary relief and declaratory/injunctive relief will be
incentivized to bring two separate lawsuits to avoid the risk that the court
will deem the "true nature" of a combined suit to be for monetary relief
alone. And that result will thwart an important feature of modern civil
procedure: to combine in one suit all claims that arise out of the same
transaction or occurrence.
The State defendants also rely on Lyons v. River Road Construction,
Inc., 858 So. 2d 257 (Ala. 2003). There, this Court held that, although the
action contained a request for declaratory relief, the whole action was
barred by State immunity because it was, in reality, "nothing more than
an action for damages." Id. at 263. But given the facts of Lyons, it does not
29
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stand for the broad proposition that the State defendants would like it to
stand for. The dredging subcontractor in Lyons sued the port-authority
director for providing the subcontractor an inaccurate report on the
underwater soil composition; that inaccuracy had caused the
subcontractor to incur unforeseen expenses. Id. at 258. The claim was
essentially for damages based on negligence. Thus, although the
subcontractor tried to shoehorn the claim into one for declaratory relief,
the remedy it sought was purely retrospective; the claim did not seek an
interpretation of the law as to future situations or seek an injunction as
to future conduct. Therefore, the essential holding of Lyons is that, when
a plaintiff sues a State official in his official capacity for retrospective
relief only -- monetary payment based on the official's past conduct -- it
does not matter how the plaintiff titles the claim; it is generally barred by
State immunity.
Here, in contrast, Reagan requested a declaration of the meaning of
the alcohol-tax statutes and an injunction applying that interpretation to
future tax collection. Although he also requested retrospective relief, his
prospective requests for declaratory and injunctive relief had independent
30
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significance. Even absent a refund, a judgment for Reagan would have
prevented the Alabama Alcoholic Beverage Control Board from collecting
future improper taxes from him and the putative class. So this case does
not come within the holding of Lyons.11
The main opinion avoids this declaratory/injunctive-relief issue by
concluding that Reagan failed to sufficiently argue it. But we have
repeatedly held that State immunity is a question of subject-matter
jurisdiction. Ex parte Wilcox Cnty. Bd. of Educ., 285 So. 3d 765, 774 (Ala.
2019); Woodfin v. Bender, 238 So. 3d 24, 27 (Ala. 2017); Danley, 212 So.
11The defendants rely on three other cases -- Ex parte Alabama
Department of Transportation, 978 So. 2d 17 (Ala. 2007), Moody v.
University of Alabama, 405 So. 2d 714 (Ala. Civ. App. 1981), and Ex parte
Bentley, 116 So. 3d 201 (Ala. 2012) -- for the proposition that State
immunity bars declaratory relief that would affect a contract or property
right of the State. Each of those cases, like Lyons, is distinguishable
because the plaintiffs' requests for declaratory relief were meaningless
apart from their requests for damages.
Reagan's requests for declaratory and injunctive relief were also not
affected by the Alabama Taxpayers' Bill of Rights and Uniform Revenue
Procedures Act ("TBOR"), § 40-2A-1 et seq., Ala. Code 1975. TBOR sets
forth the exclusive procedure for obtaining a tax refund. Ex parte State
Dep't of Revenue, 247 So. 3d 378, 387 (Ala. Civ. App. 2016). But a request
for declaratory relief to correct future miscalculation of taxes is
appropriate in circuit court. Cf. Russell, 31 So. 3d at 694.
31
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3d at 127. Therefore, we are obligated to decide whether and to what
extent it applies, regardless of the arguments of the parties or the lack
thereof. See Aland v. Graham, 287 Ala. 226, 229, 250 So. 2d 677, 678
(1971) (holding that, because State immunity is jurisdictional, this Court
takes notice of it ex mero motu). If State immunity is truly jurisdictional,
we cannot base our decision on a party's failure to make the right
argument.
Wise, J., concurs.
32 | May 14, 2021 |
d3327bb8-8155-478e-a095-b15eeff354bc | Ex parte Michael A. Livingston. | N/A | 1200461 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200461
Ex parte Michael A. Livingston. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Michael A. Livingston v.
State of Alabama) (Mobile Circuit Court: CC-02-2148.61; Criminal Appeals :
CR-20-0161).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
115dbfb4-9a47-472e-aa70-b1c677c64169 | Ex parte Danny L. Smith. | N/A | 1200587 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200587
Ex parte Danny L. Smith. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Danny L. Smith v. State of
Alabama) (Etowah Circuit Court: CC-06-269.63; CC-07-41.63; CC-07-784.63;
CC-07-785.63; CC-07-786.65; CC-07-787.65; Criminal Appeals :
CR-19-0868).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
42ac29a3-4959-43d0-8698-b5ff1ff473bb | Means v. Glover, et al. | N/A | 1190660 | Alabama | Alabama Supreme Court | REL: June 4, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190660
____________________
Raymon Means, Jr.
v.
Donnie Glover, Matt Brown, Miguel Pizzuto, Bart Sanders,
Kelley Grenon, and Mitchell Jones
Appeal from Pike Circuit Court
(CV-17-900069)
MITCHELL, Justice.
Raymon Means, Jr., an employee of Sanders Lead Company, Inc.,
was burned in a workplace accident when molten lead splashed out of a
1190660
kettle following an explosion. In an effort to recover outside Alabama's
Workers' Compensation Act, Means sued, among others, several of his co-
employees and an independent contractor, alleging that they had engaged
in willful conduct that caused his injuries. The trial court entered
summary judgment in favor of those defendants, leading to this appeal.
We affirm the judgment.
Facts and Procedural History
Sanders Lead operates a facility in Troy that recycles used
automotive batteries. As part of the recycling process, Sanders Lead
extracts lead plates from batteries, melts those plates down, refines the
molten metal to remove impurities, and pours the refined lead into ingot
molds. The company then sells these lead ingots back to battery
manufacturers.
A. Sanders Lead implements a new method to reclaim more lead
from the recycled materials
During the recycling process, a powdery material consisting of lead,
aluminum, and other metals is produced. This material, known as
aluminum dross, is then subjected to further processing to reclaim as
2
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much lead as possible. At the time of Means's accident, Sanders Lead was
implementing a new method of processing aluminum dross by diluting the
dross in a kettle of molten lead and then slowly adding sodium hydroxide
to the mixture, causing a reaction in which the aluminum and other
undesired metals would rise to the top. Those metals were then drawn
off, allowing Sanders Lead to reclaim the lead that had been in the dross.
This new method of processing aluminum dross was introduced to
Sanders Lead by Miguel Pizzuto, a chemical engineer and metallurgist
who owns a lead-processing business in Mexico and who acts as a
consultant to businesses in the industry.1 About a week before Means's
accident, Pizzuto discussed the new method in a meeting with Sanders
Lead's vice president of operations, Bart Sanders, and the company's
casting and alloy manager, Kelley Grenon. Sanders ultimately approved
a trial of the method suggested by Pizzuto. By the time of Means's
1Pizzuto first began working with Sanders Lead in 2005. At the time
of Means's accident, Sanders Lead had been paying him a flat monthly
retainer for about five years.
3
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accident, the company had successfully processed seven batches of
aluminum dross using Pizzuto's method.
B. Means is injured while using the new method
When Means arrived for his afternoon shift on July 8, 2015, his
supervisor, Mitchell Jones, instructed him to begin processing another
batch of aluminum dross. Means began doing so, and, when it came time
to add sodium hydroxide to the batch, he used a forklift with a squeeze
attachment to pour sodium hydroxide from 55-gallon barrels into the
kettle. It appears, however, that the sodium hydroxide was added to the
kettle too quickly and that, as it reacted with the aluminum in the
mixture, flammable hydrogen gas began to build up. That hydrogen gas
exploded, splashing molten lead out of the kettle and onto Means where
he sat in the forklift. Means was wearing some protective gear but
suffered second-degree burns and had to be transported to a Birmingham
hospital for treatment.
As required by federal law, Sanders Lead submitted an accident
notice to the Occupational Safety and Health Administration ("OSHA").
That notice indicated that Means was injured while recovering lead from
4
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aluminum dross through a process "developed with a metallurgist; Vice
President of Operations, Bart Sanders; Kelley Grenon and staff from the
Casting and Alloying Department." It further identified Grenon as
"Casting and Alloying Department Supervisor" and Jones as "Casting and
Alloying Shift Supervisor." OSHA later conducted an investigation of
Means's accident, and, as part of that investigation, Grenon and Jones
submitted statements in which they denied knowing that adding sodium
hydroxide to a mixture containing aluminum could cause an accident like
the one that injured Means. Grenon further stated that he had been told
about the new method of processing aluminum dross by the company's
"advisor," and that he had learned that they were going to try it and had
been instructed on the method at a meeting not long before the accident.
Grenon also said that the company's "metallurgical consultant" did not
mention that adding too much sodium hydroxide too quickly to a mixture
containing aluminum was dangerous. It is undisputed that the references
to the company's "metallurgist," "advisor," and "metallurgical consultant"
refer to Pizzuto. The OSHA investigation resulted in two citations being
5
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given to Sanders Lead; the case was closed in November 2015 after
Sanders Lead changed its procedures and paid a fine.2
C. Sanders Lead initiates a workers' compensation action to
determine the benefits Means is entitled to receive
The following month, Sanders Lead initiated an action in the Pike
Circuit Court to determine the workers' compensation benefits Means was
entitled to recover under the Alabama Workers' Compensation Act ("the
Act"), § 25-5-1 et seq., Ala. Code 1975. That same month, OSHA records
indicate that Means requested a copy of the report on his accident. It is
not clear exactly when Means received a copy of the OSHA report, but
discovery requests that Means served upon Sanders Lead during the
course of the workers' compensation action indicate that he was in
possession of that report by August 2016. Those discovery requests sought
information from Sanders Lead about the decision to implement the new
method of processing aluminum dross, including information about who
2Sanders Lead now sends the aluminum dross created during its
recycling process to another company for processing.
6
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had participated in any meeting at which the method was discussed and
what those participants knew about the hazards the method entailed.
Sanders Lead objected to those discovery requests, arguing that it
had already conceded that Means's injury was compensable under the Act
and that the only issues to be decided involved the extent of Means's
impairment and the benefits he was therefore due. Citing the OSHA
report, Means responded by noting that the requested discovery would
help him determine if additional claims against co-employees should be
added to the action under § 25-5-11, Ala. Code 1975, which provides an
exception to the exclusive-remedy provisions of the Act when an
employee's injuries are caused by a co-employee's "willful conduct."
In October 2016, the trial court ruled that Means was not entitled
to the requested discovery, explaining that it was not relevant to the
pending action, which had been initiated solely to determine the workers'
compensation benefits to which Means was entitled. See Rule 26(b)(1)(i),
Ala. R. Civ. P. (setting forth a party's general right to obtain discovery
"relevant to the subject matter involved in the pending action").
7
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D. Means initiates a separate action seeking to recover damages
from his co-employees for alleged willful conduct
It is not clear from the record how or when the workers'
compensation action initiated by Sanders Lead was resolved, but on June
2, 2017, Means initiated a separate action in the Pike Circuit Court
against two Sanders Lead employees -- safety manager Donnie Glover and
safety engineer Matt Brown -- and fictitiously named parties, alleging,
among other things, that their conduct had been willful and had caused
his accident and injuries. As later amended, Means specifically alleged (1)
that Glover and Brown knew or should have known that pouring sodium
hydroxide into a kettle of molten lead and aluminum had the potential to
cause an explosion and serious injury or death, and that they therefore
had a duty to stop Sanders Lead from implementing that process, and (2)
that Glover and Brown had failed to install a safety windshield on the
forklift he was operating at the time of his accident, which constituted
willful conduct subjecting them to liability under § 25-5-11.
At the same time that he filed his complaint, Means served
interrogatories on Glover and Brown requesting, among other things, that
8
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they identify (1) any Sanders Lead employees who had known that adding
sodium hydroxide to aluminum dross could create flammable hydrogen
gas and (2) who had attended the meeting at which the new method of
processing aluminum dross was discussed. In answering the
interrogatories on November 29, 2017, Glover and Brown indicated that,
to the best of their knowledge, no one at Sanders Lead had known that
adding sodium hydroxide to aluminum dross could result in an explosion
and that, if there had been any meeting discussing a new process that
involved mixing sodium hydroxide with molten lead containing aluminum,
they were not part of that meeting and were unaware of it.
Means's counsel deposed Glover on September 13, 2018. Means
states that it was at this deposition that he learned for the first time that
Pizzuto, Sanders, Grenon, and Jones were defendants who had previously
been fictitiously named. Accordingly, on September 27, 2018, Means
amended his complaint to substitute those individuals ("the substituted
defendants") for previously identified fictitiously named defendants and
to assert claims against them under § 25-5-11 based on (1) their roles in
implementing the process that injured him and (2) their alleged failure to
9
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install a safety windshield on the forklift he was operating at the time of
his accident. Means also asserted a separate negligence and wantonness
claim against the independent contractor Pizzuto.
E. The substituted defendants argue that Means's claims against
them are barred by the statute of limitations
The substituted defendants moved the trial court to dismiss the
claims asserted against them, arguing that all the claims were subject to
a two-year statute of limitations that had expired on July 8, 2017 -- two
years after Means's accident. They further argued that Means could not
rely on Rules 9(h) and 15(c), Ala. R. Civ. P., to avoid that time bar
because, they alleged, he had failed to exercise due diligence to identify
them. See, e.g., Ex parte McCoy, [Ms. 1190403, Jan. 22, 2021] ___ So. 3d
___, ___ (Ala. 2021) (explaining that a plaintiff can invoke Rules 9(h) and
15(c) to avoid the bar of a statute of limitations only when due diligence
has been exercised to identify the defendant who was fictitiously named).
Because the substituted defendants supported their motion with affidavits
and other evidence, the trial court notified the parties that it would treat
the filing as a summary-judgment motion and made no ruling at that
10
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time. Meanwhile, Means amended his complaint again to assert claims
against the companies that had manufactured and sold the sodium
hydroxide he was pouring into the kettle when he was injured (these
companies are collectively referred to as "the chemical defendants").
F. Glover, Brown, and the substituted defendants move for
summary judgment
In April 2019, Glover, Brown, and the substituted defendants
(collectively referred to as "the Sanders Lead defendants") filed a
summary-judgment motion, not only asserting the previously raised
statute-of-limitations defense on behalf of the substituted defendants but
also arguing that Means could not produce substantial evidence to support
his claims. In addition, the Sanders Lead defendants argued, for the first
time, that Pizzuto should be considered a "special employee" of Sanders
Lead and that, therefore, § 25-5-11 barred any claim against him that did
not allege willful conduct. See generally G.UB.MK Constructors v.
Garner, 44 So. 3d 479, 485-87 (Ala. 2010) (explaining the special-
employment doctrine that applies in cases governed by the Act).
11
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G. The trial court enters summary judgment in favor of the Sanders
Lead defendants
On November 19, 2019, the trial court entered summary judgment
in favor of the Sanders Lead defendants, holding (1) that Means had not
exercised due diligence to identify the substituted defendants, which
meant he could not rely on Rules 9(h) and 15(c) to avoid the statute of
limitations, and (2) that Means had not produced substantial evidence
that his injuries were caused by the willful conduct of his co-employees
and, thus, any claims against them were barred by the Act.3 The trial
court did not certify this summary judgment as final under Rule 54(b),
Ala. R. Civ. P., and Means's case against the chemical defendants
proceeded.
3Because the trial court concluded that Means's claims against
Pizzuto were time-barred, it was unnecessary for it to analyze whether
Pizzuto was a special employee of Sanders Lead who was also protected
by § 25-5-11. The court nevertheless stated in passing that Pizzuto
appeared to be an independent contractor who would not be protected by
§ 25-5-11.
12
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H. The trial court disposes of Means's remaining claims
The chemical defendants later filed their own summary-judgment
motion. On February 13, 2020, Means filed a motion conceding that he
had no viable claims against the chemical defendants and asking the trial
court to dismiss his claims against them. The next day, Means filed a
"further response" to the Sanders Lead defendants' summary-judgment
motion, in which he submitted additional exhibits and essentially restated
the arguments he had made in opposition to their summary-judgment
motion. On February 16, 2020, Means filed a "motion for reconsideration"
asking the trial court to reconsider the summary judgment entered in
favor of the Sanders Lead defendants. The trial court gave the Sanders
Lead defendants 14 days to respond to Means's "motion to vacate or
modify."
On February 24, 2020, the trial court dismissed Means's claims
against the chemical defendants. Because no other claims remained
outstanding, the November 2019 summary judgment previously entered
in favor of the Sanders Lead defendants became final at that time.
13
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The Sanders Lead defendants still filed a response to Means's
motion to reconsider, and, on March 6, 2020, the trial court set the matter
for a hearing on March 19, 2020. Following that hearing, on April 15,
2020, the trial court denied Means's motion. In its order, the trial court
stated that it lacked jurisdiction to consider the issues raised by Means
because he had not filed a timely postjudgment motion after the summary
judgment in favor of the Sanders Lead defendants became final on
February 24. Nevertheless, the trial court concluded that, to the extent
it might have jurisdiction, Means's motion was due to be denied on the
merits. On May 20, 2020, Means filed his appeal to this Court.
Standard of Review
Means appeals the summary judgment entered in favor of the
Sanders Lead defendants. When a party "appeals from a summary
judgment, our review is de novo." Nationwide Prop. & Cas. Ins. Co. v.
DPF Architects, P.C., 792 So. 2d 369, 372 (Ala. 2000). We therefore apply
the same standard the trial court used -- we must determine whether
there is substantial evidence establishing the existence of a genuine issue
of material fact that must be resolved by the fact-finder. Id. "Substantial
14
1190660
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 Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). We further note that, in
reviewing a summary judgment, we view the evidence in the light most
favorable to the nonmovant and entertain such reasonable inferences as
the jury would have been free to draw. Jefferson Cnty. Comm'n v. ECO
Pres. Servs., L.L.C., 788 So. 2d 121, 127 (Ala. 2000).
Analysis
Means has asserted a claim against each of the Sanders Lead
defendants based on (1) the implementation of the new method of
processing aluminum dross and (2) the absence of a safety windshield on
the forklift he was using at the time of his accident. We therefore consider
whether summary judgment was appropriately granted to each of the
Sanders Lead defendants for both of those alleged acts.
15
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A. Means's claims based on the adoption of a new method for
processing aluminum dross
The trial court held that the Sanders Lead defendants were entitled
to summary judgment on these claims based on (1) the statute of
limitations or (2) Means's failure to produce substantial evidence
demonstrating that his claims were permitted under § 25-5-11. Some of
the defendants, the trial court held, were entitled to summary judgment
on both grounds. The trial court in its order, and the parties in their
briefs, address the statute-of-limitations issue first. We do the same here.
1. The substituted defendants
The trial court held that the claims Means asserted against the
substituted defendants were barred by the statute of limitations because,
it concluded, Means did not diligently try to identify the substituted
defendants. Means disputes that conclusion and says that he acted with
due diligence at all times and that, under Rules 9(h) and 15(c), his claims
against the substituted defendants related back to the date of his initial
complaint. We disagree with Means.
16
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Rule 9(h) permits a plaintiff who "is ignorant of the name of an
opposing party" to identify a defendant by a fictitious name and, provides
that "when that party's true name is discovered, the process and all
pleadings and proceedings in the action may be amended by substituting
the true name." Rule 15(c)(4) further provides that an amendment
substituting an individual or entity for a fictitiously named defendant
under Rule 9(h) "relates back to the date of the original pleading" if
relation back is consistent with "principles applicable to fictitious party
practice." This Court summarized those principles in Ex parte Noland
Hospital Montgomery, LLC, 127 So. 3d 1160, 1167 (Ala. 2012):
"In order to avoid the bar of a statute of limitations when
a plaintiff amends a complaint to identify a fictitiously named
defendant on the original complaint, the plaintiff: (1) must
have adequately described the fictitiously named defendant in
the original complaint; (2) must have stated a cause of action
against the fictitiously named defendant in the body of the
original complaint; (3) must have been ignorant of the true
identity of the fictitiously named defendant; and (4) must have
used due diligence in attempting to discover the true identity
of the fictitiously named defendant. Ex parte Tate & Lyle
Sucralose[, Inc.], 81 So. 3d [1217,] 1220-21 [(Ala. 2011)]."
With respect to the fourth requirement, we have further explained that
"[t]he test for determining whether a plaintiff has exercised due diligence
17
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to obtain the identities of fictitiously named defendants is 'whether the
plaintiff knew, or should have known, or was on notice, that the
substituted defendants were in fact the parties described fictitiously.'
Davis v. Mims, 510 So. 2d 227, 229 (Ala. 1987)." Ex parte American
Sweeping, Inc., 272 So. 3d 640, 644 (Ala. 2018).
The trial court concluded that Means should have known that the
substituted defendants were fictitiously named defendants when he
initiated this action. Means disputes this, stating that he could not have
known that the substituted defendants were the defendants he identified
with fictitious names in his initial complaint at the time he filed it. He
says that he diligently tried to uncover those fictitiously named parties'
identities even before he initiated this action, as evidenced by the
discovery requests he served in the workers' compensation action initiated
by Sanders Lead that sought information about who had been involved in
the decision to implement the new method of processing aluminum dross.
But, according to Means, Sanders Lead resisted that discovery and the
trial court ultimately did not allow it. Finally, he notes that he served
discovery requests on Glover and Brown when he filed his initial
18
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complaint in this case, which, he states, should have revealed the
substituted defendants' identities; but Means says those responses were
not received for almost six months and ultimately did not identify who had
been in the meeting at which the new method was discussed.4
The flaw in Means's argument is that -- regardless of how unfruitful
his attempts at discovery were -- he was already in possession of materials
that should have put him on notice that the substituted defendants were
the fictitiously named defendants. In fact, he had that information well
before he filed his complaint in June 2017 and the limitations period
4Means also argues that the substituted defendants waived their
right to invoke the statute of limitations because they failed to assert it
as an affirmative defense in their answer. The general proposition upon
which Means bases that argument is correct. See, e.g., State ex rel. State
of Ohio v. E.B.M., 718 So. 2d 669, 670 (Ala. 1998) ("The defense of the
statute of limitations must be affirmatively pleaded, and if an answer does
not include an affirmative defense, that defense is deemed to have been
waived."). But an exception to this rule exists when an affirmative
defense is raised in a motion filed before an answer is filed. See Wallace
v. Alabama Ass'n of Classified Sch. Emps., 463 So. 2d 135, 137 (Ala. 1984)
("To be sure, if a defendant moves for summary judgment before he files
an answer, the court may recognize an affirmative defense argued in
support of the summary judgment motion because, in that instance, it has
not been waived."). That is what happened here. Therefore, the
substituted defendants' statute-of-limitations argument was properly
before the trial court.
19
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expired in July 2017. Specifically, the OSHA report that Means received
no later than August 2016 contains the accident notice that Sanders Lead
submitted to OSHA following his accident. That notice expressly states
that the process Means was undertaking when he was injured "was
developed with a metallurgist; Vice President of Operations, Bart
Sanders; Kelley Grenon and staff from the Casting and Alloying
Department." Means also acknowledged in his own deposition that Jones
-- identified in the OSHA report as "Casting and Alloying Shift
Supervisor" -- was the person who had told him to begin processing
aluminum dross on the date of his accident and who had given him
instructions about how to complete that process. Thus, Means was in
possession of information that revealed the roles Sanders, Grenon, and
Jones had in implementing the process that injured him before he filed
suit and before the limitations period expired.
Pizzuto's situation is admittedly different because the OSHA report
did not identify him by name. But the evidence indicates that Pizzuto was
often at Sanders Lead's Troy facility, and the OSHA report clearly
indicated that someone identified as the company's "advisor," "the
20
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metallurgical consultant," and the "metallurgist" was involved in the
development and adoption of the process Means was completing at the
time of his injury. In spite of this evidence, there is nothing in the record
indicating that Means sought to uncover the identity of this individual
through either formal or informal means before the limitations period
expired. This failure to investigate is fatal to Means's attempt to rely on
Rules 9(h) and 15(c).
This Court's opinion in Ex parte Mobile Infirmary Ass'n, 74 So. 3d
424 (Ala. 2011), a wrongful-death case, is instructive. In that case, the
plaintiff had records in his possession well before he filed suit informing
him which hospital -- Mobile Infirmary Medical Center -- had treated the
decedent, but he did not know the hospital's legal name. 74 So. 3d at 426.
After using a fictitious name for the hospital in his complaint, the plaintiff
sought discovery from other defendants about the treatment and care the
decedent had received; but he did not seek information about the legal
name of the hospital. Id. at 427. Only after the limitations period had
expired did the plaintiff finally issue discovery specifically requesting the
legal name of the hospital. Id. Once he received a response, the plaintiff,
21
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over the hospital's objection, amended his complaint to substitute the
hospital for a fictitiously named defendant. Id.
The hospital sought mandamus relief, arguing that the claim against
it was barred by the statute of limitations. Id. This Court held that a
reasonably diligent person possessing the records the plaintiff had "should
have at least attempted to identify the corporation doing business as
Mobile Infirmary Medical Center and include it as a defendant." Id. at
429. Therefore, this Court granted the petition and directed the trial
court to dismiss the claim against the hospital because the plaintiff had
"failed to use due diligence in determining the true identity of Mobile
Infirmary as the fictitiously named defendant." Id. at 428.
Like the plaintiff in Mobile Infirmary, Means seeks to establish due
diligence by emphasizing that he served discovery requests and did not
receive timely responses to those requests. Id. at 429-30. This Court
rejected that argument in Mobile Infirmary, explaining that, while "a lack
of formal discovery will often indicate a lack of due diligence," the
converse is not true -- the serving of discovery requests does not
automatically establish due diligence. Id. at 429. Rather, it is the
22
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substance of those requests that is important. Because the plaintiff in
Mobile Infirmary failed to include "any inquiry" about the legal name of
the defendant hospital in his initial discovery requests, those requests
were ineffective to show that he had exercised due diligence to uncover the
identity of the fictitiously named defendant. Id. at 430. Moreover, any
delay in receiving those responses was ultimately inconsequential -- even
if the discovery responses had been received "in a timely manner, [the
plaintiff] would not have had any new information on which to amend his
complaint to add [the substituted defendant hospital] ... in place of one of
the fictitiously named defendants." Id.
Similarly, Means possessed records informing him of the
involvement of an advisor/metallurgical consultant/metallurgist in
implementing the process that injured him, but the record contains no
evidence showing that he sought to discover the identity of that individual
at any time before the limitations period expired. Because Means
"possesse[d] sufficient facts to lead to the discovery of [Pizzuto's] identity
at the time of the filing of the complaint, relation back under fictitious
party practice is not permitted and the running of the limitations period
23
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is not tolled." Clay v. Walden Joint Venture, 611 So. 2d 254, 256 (Ala.
1992).5
2. Glover and Brown
The trial court held that Glover and Brown were entitled to
summary judgment on Means's claims against them because Means did
not produce substantial evidence showing that they had engaged in willful
conduct that caused his injuries. Section 25-5-11(b) provides that an
injured employee shall have a cause of action against an "employee of the
same employer" if his or her injury is the result of that co-employee's
"willful conduct, as defined in subsection (c)." Relevant to these claims,
§ 25-5-11(c)(1) defines "willful conduct" as "[a] purpose or intent or design
to injure another; and if a person, with knowledge of the danger or peril
to another, consciously pursues a course of conduct with a design, intent,
and purpose of inflicting injury, then he or she is guilty of 'willful
conduct.' " This Court has further emphasized that an injured employee
5Means's failure to timely name Pizzuto as a defendant bars both the
negligence and wantonness claims asserted against him and the claims
asserted against him under § 25-5-11 if he was determined to be a special
employee of Sanders Lead.
24
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bears the burden of establishing more than negligence or wantonness by
a co-employee; rather, the injured employee must show either
1) "the reason why the co-employee defendant would want to
intentionally injure the plaintiff, or someone else," or
2) "that a reasonable man in the position of the defendant
would have known that a particular result (i.e., injury or
death) was substantially certain to follow from his actions."
Reed v. Brunson, 527 So. 2d 102, 120 (Ala. 1988).
Means argues that Glover and Brown knew that injury or death was
substantially certain to occur when sodium hydroxide was introduced into
a mixture containing aluminum and that his suit against them is
therefore permitted by § 25-5-11(c)(1). The problem for Means is that he
brought forward no evidence -- much less substantial evidence -- to back
up this allegation.
In their interrogatory responses, both Glover and Brown denied
having any knowledge that adding sodium hydroxide to aluminum dross
could cause an explosion, and they indicated that they were unaware of
any Sanders Lead employees who had such knowledge before Means's
accident. Means emphasizes that Glover nevertheless later testified that
25
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"[e]verybody involved" knew there was a material safety data sheet for
sodium hydroxide.6 This six-page document notes, among other things,
that sodium hydroxide is incompatible with aluminum and that contact
between them "generates explosive hydrogen." But this testimony that
the employees were generally aware of the existence of a material safety
data sheet for sodium hydroxide, even when viewed in the light most
favorable to Means, is insufficient to support an inference that any of
those employees -- much less Glover or Brown -- were substantially
certain that serious injury would result if those materials were mixed.
And it is undisputed that neither Glover nor Brown had any
knowledge that the new method suggested by Pizzuto was even being
considered or implemented until after Means's accident. Neither of them
were in the meeting at which the new method was discussed, and the
evidence in the record indicates that their involvement in operations was
6A material safety data sheet ("MSDS") is a document providing
information about the properties and potential hazards of a chemical
substance. OSHA requires employers to have an MSDS in the workplace
for all potentially hazardous chemicals that they use. See, generally, 29
C.F.R. § 1910.1200.
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limited to providing general safety programs and ensuring compliance
with OSHA regulations. In fact, when Brown was deposed, Means's
attorney specifically asked him about Sanders Lead's use of sodium
hydroxide, and Brown explained that "I wouldn't know. I don't work on
the operations side." He later explained that he and Glover had no
involvement in operations other than on the "compliance side," explaining
that "[w]e look for machine guards and things like that to make sure that
those are in place, to make sure employees aren't getting injured."
In sum, Means's brief fails to identify any evidence in the record that
would support a finding that either Glover or Brown would have known
that his injury was substantially certain to follow any course of conduct
they consciously pursued, see § 25-5-11(c)(1), related to Sanders Lead's
processing of aluminum dross. The summary judgment entered in their
favor on these claims is therefore due to be affirmed.
B. Means's claims based on the absence of a safety windshield on
the forklift he was operating at the time of his accident
Section 25-5-11(c)(2) alternately provides that "[t]he willful and
intentional removal from a machine of a safety guard or safety device
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provided by the manufacturer of the machine with knowledge that injury
or death would likely or probably result from the removal" is also
considered "willful conduct" for purposes of § 25-5-11. Citing this
subsection, Means asserted claims against the Sanders Lead defendants7
alleging that the failure to install a safety windshield on the forklift he
was operating at the time of his accident constituted willful conduct
subjecting them to liability. But the evidence is undisputed that the
forklift Means was using when he was injured was manufactured and sold
to Sanders Lead without a safety windshield.
While Sanders Lead sometimes added aftermarket safety
windshields to forklifts after they were purchased, the forklift Means used
at the time of his accident was not in that group. By its terms, § 25-5-
7In his opening brief to this Court, Means begins his argument by
stating that, "[i]n this case, Sanders, Grenon, and Jones were responsible
for the failure to repair or install a safety shield on [Means's] forklift."
Means's brief at 55. Means does not specifically discuss the other Sanders
Lead defendants in relation to his forklift-based claim; it is thus unclear
if he is conceding the propriety of the summary judgment entered as to the
other Sanders Lead defendants on his forklift-based claim. Nevertheless,
because the analysis would be the same for all these defendants, we
continue to refer to them collectively as the Sanders Lead defendants
throughout our discussion of this issue.
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11(c)(2) is implicated only when there has been a "removal from a machine
of a safety guard or safety device provided by the manufacturer of the
machine" (emphasis added) -- and there is no evidence that any such
removal occurred here. See also Mallisham v. Kiker, 630 So. 2d 420, 423-
24 (Ala. 1993) ("The legislature has retained a limited right of action
against a co-employee under § 25-5-11(c)(2) for the removal of a
manufacturer's safety device from a machine, not the removal or omission
of any safety device from any workplace environment." (emphasis and
footnote omitted)).8
8Means argues that, because Sanders Lead had conducted extensive
maintenance and repairs on the forklift in the five-year period before his
accident, it should be considered to have "re-manufactured" the forklift
and to have replaced the original manufacturer for the purpose of
applying § 25-5-11(c)(2). See, e.g., Harris v. Gill, 585 So. 2d 831, 836 (Ala.
1991) (holding that "the term 'manufacturer' may include not only the
original manufacturer (one who produces articles for use or trade), but
also a subsequent entity that substantially modifies or materially alters
the product through the use of different components and/or methods of
assembly"). Even if we accepted this argument, Means still would not
prevail. Regardless of who is considered to be the manufacturer of the
forklift in question, there is no evidence that this forklift ever had a safety
windshield that was removed, as § 25-5-11(c)(2) requires.
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Section 25-5-11(c)(2) does not provide an injured employee with a
cause of action against a co-employee simply because that co-employee did
not install a safety device that was available. Rather, § 25-5-11(c)(2)
requires the co-employee to have willfully and intentionally removed a
manufacturer-provided safety device before liability can be found. Means
did not produce any evidence that a Sanders Lead defendant removed or
caused to have removed a safety windshield on the forklift he was
operating at the time of his accident. Therefore, the summary judgment
entered in their favor must be affirmed.
Conclusion
While the Act generally bars an employee injured in a workplace
accident from recovering damages from a co-employee who allegedly
caused the accident, § 25-5-11 provides an exception when the accident
was caused by the co-employee's willful conduct. Means sued the Sanders
Lead defendants claiming that the § 25-5-11 exception applied to his case.
The trial court entered a summary judgment against him, holding that his
claims were all either barred by the statute of limitations or not supported
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by substantial evidence of willful conduct. The trial court's judgment was
correct and is therefore affirmed.
AFFIRMED.
Parker, C.J., and Wise and Bryan, JJ., concur.
Bolin and Mitchell, JJ., concur specially.
Sellers and Stewart, JJ., concur in the result.
Shaw and Mendheim, JJ., dissent.
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MITCHELL, Justice (concurring specially).
As the author of the main opinion, I fully concur with it. I write
separately to explain my view that this appeal was timely, thus vesting
our Court with jurisdiction to consider the merits of the arguments raised
by the appellant, Raymon Means, Jr.
In his dissenting opinion, Justice Shaw accurately notes that our
courts have been inconsistent in the way they treat motions to reconsider
that are pending when a final judgment is entered.9 I share some of
Justice Shaw's concerns about the "quickening" rule and believe it would
be problematic to have a rule providing that every motion to reconsider
that is pending when a final judgment is entered automatically becomes
a postjudgment motion. But a rule providing that a motion to reconsider
can never be converted into a postjudgment motion is at least equally
9The Rules of Civil Procedure do not expressly authorize a party's
motion asking the trial court to reconsider a nonfinal judgment. In the
absence of a rule defining such motions, they may, in practice, be filed
under various names, including "motions to reconsider," "motions to set
aside," or even, borrowing language from Rule 59, Ala. R. Civ. P., "motions
to alter, amend, or vacate." For convenience, I refer to such motions as
"motions to reconsider" in this writing.
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problematic. Fortunately, these are not the only options. Caselaw from
the Court of Civil Appeals points to a third alternative -- allowing a
motion to reconsider to become a postjudgment motion when the trial
court affirmatively elects to treat it as such.
In McIntyre v. Satch Realty, Inc., 961 So. 2d 135, 137 (Ala. Civ. App.
2006), the Court of Civil Appeals considered an appeal in which the
appellants had moved the trial court to reconsider a nonfinal order but the
trial court entered a final judgment before considering their motion.
"Thereafter, [the trial court] took up and considered, for the first time,
[that] motion," treating it as "a postjudgment motion." Id. at 138.
Emphasizing that no party had objected to the trial court's action, the
Court of Civil Appeals stated that "we must conclude that their motion to
[reconsider] became a postjudgment motion, and therefore we, like the
trial court, treat it as such." Id. The Court of Civil Appeals similarly
affirmed a trial court's decision to treat a motion to reconsider as a
postjudgment motion in Slocumb Law Firm, LLC v. Greenberger, [Ms.
2190038, July 24, 2020] ___ So. 3d ___, ___ (Ala. Civ. App. 2020)
(explaining that "although the [appellant's] motion to reconsider was filed
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before the final default judgment was entered, that motion was properly
considered by the trial court as a postjudgment motion addressed to the
trial court's final default judgment").
In both McIntyre and Slocumb Law Firm, the Court of Civil Appeals
highlighted that there had been no objection to the trial court's decision
to treat a motion to reconsider as a postjudgment motion -- the trial court
and the parties were apparently all on board with that course of action.
See, e.g., Slocumb Law Firm, ___ So. 3d at ___ (noting that "the trial court
and the parties, without objection, ultimately treated the motion as
though it were directed to the final default judgment").
That is precisely what occurred in this case. Here's the timeline:
February 16, 2020 -- Means filed his motion to reconsider
challenging the nonfinal judgment entered in favor of whom
the main opinion refers to as the Sanders Lead defendants in
November 2019.
February 24, 2020 -- The trial court entered a final judgment
dismissing Means's remaining claims against the other
defendants.
March 5, 2020 -- The Sanders Lead defendants filed a response
opposing Means's motion. Notably, they did not argue that his
motion was denied or otherwise disposed of by the final
judgment entered on February 24.
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March 6, 2020 -- The trial court entered an order setting
Means's motion for a hearing on March 19, 2020.
March 19, 2020 -- The trial court began the hearing on Means's
motion by confirming that "we are here on plaintiff's motion to
reconsider the court's order granting a summary judgment in
favor of the [Sanders Lead] defendants." The parties then
proceeded to make arguments about the merits of the
judgment entered in favor of the Sanders Lead defendants. No
one argued that Means's motion had already been denied or
otherwise disposed of. The trial court concluded the hearing
by stating that it would take the matter "under advisement."
As this timeline makes clear, there can be no serious dispute about
whether the trial court affirmatively chose to treat Means's motion to
reconsider as a postjudgment motion. It most certainly did, and all the
parties knew it. And the relevant caselaw empowered the trial court to
make that decision. See McIntyre, 961 So. 2d at 137. In light of these
circumstances, I cannot fault Means for failing to file a brand new
postjudgment motion after the February 24 final judgment was entered.
Why would he?
Of course, this case diverges from McIntyre and Slocumb Law Firm
because the trial court later reversed course and held that Means's motion
to reconsider could not operate as a postjudgment motion. But the trial
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court's conclusion was inconsistent with every action it had taken up until
that point in time. While the trial court certainly had the discretion not
to treat Means's motion to reconsider as a postjudgment motion after the
final judgment was entered, once it did, it could not consistently
communicate to Means that he had a postjudgment motion pending and
then -- after the time to file a postjudgment motion had passed -- rule that
he had never put such a motion before the court. In my view, the trial
court exceeded its discretion by attempting to rewrite the procedural
history in this way. And, in light of our muddy caselaw in this area, a
decision by this Court affirming the trial court's belated conclusion would
conflict with Rule 1(c), Ala. R. Civ. P., and our stated policy to decide cases
on the merits whenever it is permissible to do so. See Ex parte Cowley,
43 So. 3d 1197, 1199 (Ala. 2009) ("It is long settled that rules of procedure
are properly construed so as to allow the court to reach the merits of the
issues.").
Because the trial court affirmatively treated Means's motion to
reconsider as a postjudgment motion, the time for Means to appeal from
the February 24 final judgment was tolled by Rule 4(a)(3), Ala. R. App. P.
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After that motion was denied, Means filed his notice of appeal within the
next 42 days, as required by Rule 4(a)(1), Ala. R. App. P. This appeal is
therefore timely and it is appropriate for us to consider the merits of the
arguments he makes on appeal.
Bolin, J., concurs.
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SHAW, Justice (dissenting).
I respectfully dissent. I believe that this appeal is untimely and,
thus, that this Court does not have jurisdiction.
As discussed more fully in the main opinion, the appellant, Raymon
Means, Jr., commenced an action against two sets of defendants,
designated in the main opinion as the Sanders Lead defendants and the
chemical defendants. The trial court entered a summary judgment in
favor of the Sanders Lead defendants on November 19, 2019. This was
not a final judgment because it did not dispose of all the claims as to all
the parties in the case. Grantham v. Vanderzyl, 802 So. 2d 1077, 1079-80
(Ala. 2001) ("Ordinarily, an appeal can be brought only from a final
judgment. Ala. Code 1975, § 12-22-2. If a case involves multiple claims or
multiple parties, an order is generally not final unless it disposes of all
claims as to all parties."). On February 16, 2020, Means filed a "motion
for reconsideration" that asked the trial court to reconsider that summary
judgment. On February 24, 2020, the trial court dismissed Means's claims
against the chemical defendants. At that point, the November 19, 2019,
summary judgment previously entered in favor of the Sanders Lead
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defendants became a final judgment. Thereafter, the Sanders Lead
defendants filed a response to Means's motion to reconsider. Following a
hearing the trial court denied Means's motion on April 15, 2020. On May
20, 2020, Means filed a notice of appeal.
Rule 4(a)(1), Ala. R. App. P., provides 42 days to appeal from a
judgment. Generally, the judgment must be final to support an appeal.
Grantham, supra, and Ex parte P&H Constr. Co., 723 So. 2d 45, 47 (Ala.
1998) ("Rule 4(a)(1), Ala. R. App. P., sets the time allowed for filing a
notice of appeal, in any appeal by right and from a final judgment, at 42
days."). Rule 4(a)(3), Ala. R. App. P. provides, however, that "[t]he filing
of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the
Alabama Rules of Civil Procedure ... shall suspend the running of the time
for filing a notice of appeal."
Means's May 20, 2020, notice of appeal was not filed within 42 days
of February 24, 2020. The issue, as I see it, is whether his February 16,
2020, motion to reconsider the November 19, 2019, summary judgment in
favor of the Sanders Lead defendants was a postjudgment motion as
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contemplated by Rule 4(a)(3), specifically, a motion pursuant to Rule 59(e),
Ala. R. Civ. P., that suspended the time to appeal.
As noted above, the November 19, 2019, summary judgment in favor
of the Sanders Lead defendants was a nonfinal judgment at the time the
motion was filed. Numerous decisions have held that a motion to
reconsider what is otherwise a nonfinal judgment cannot be considered a
motion pursuant to Rule 59(e). See, e.g., State v. Brantley Land, L.L.C.,
976 So. 2d 996, 998 n.3 (Ala. 2007) ("Because no final judgment had been
entered when the State filed the documents denominated as a 'Rule 59'
motion and an 'Amendment/Supplement' to the 'Rule 59 motion,' Rules 59
and 59.1 were inapplicable. The motion and amendment were, in fact,
motions to reconsider [an] interlocutory ... order."); Lambert v. Lambert,
22 So. 3d 480, 483-84 (Ala. Civ. App. 2008) ("The wife's motion was not a
postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., because the
circuit court's ... order [adjudicating one of several pending claims] was
not a 'judgment' within the meaning of Rule 54(a), Ala. R. Civ. P. The
wife's ... motion was, in effect, a motion to reconsider an interlocutory
order."); and Lanier v. Surrett, 772 So. 2d 1187, 1188 (Ala. Civ. App. 2000)
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("Because the partial summary judgment was interlocutory, Surrett's
motion was not one filed pursuant to Rule 59(e).").
The rationale of these decisions appears to be based on the general
rule that a Rule 59(e) motion can be directed to only a final judgment:
"By its express terms, Rule 59(e) applies only where
there is a 'judgment.' That term is specifically defined in Ala.
R. Civ. P. 54(a), as 'a decree and any order from which an
appeal lies.' (Emphasis added.) Rule 59 does not apply to
interlocutory orders, because such orders remain 'within the
breast of the court.' Rheams v. Rheams, 378 So. 2d 1125, 1128
(Ala. Civ. App. 1979). A 'Rule 59 motion may be made only in
reference to a final judgment or order.' Malone v. Gainey, 726
So. 2d 725, 725 n. 2 (Ala. Civ. App. 1999); see also Anderson v.
Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988); Momar,
Inc. v. Schneider, 823 So. 2d 701, 704 (Ala. Civ. App. 2001) (a
Rule 59(e) 'motion may be taken only from a final judgment')."
Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 549-50 (Ala. 2003).10
See also Ex parte Cate, 303 So. 3d 142, 145 (Ala. Civ. App. 2020) (noting
that "a valid postjudgment motion filed pursuant to Rule 59(e), Ala. R.
Civ. P., may be filed only in reference to a final judgment").
10The interlocutory order at issue in Troutman Sanders was the
denial of a motion to dismiss and, thus, was not a final judgment.
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A separate line of cases relied on by the Court of Civil Appeals has
held that a motion to reconsider a nonfinal judgment can mature or
"quicken" into a proper postjudgment motion when the judgment becomes
final. See, e.g., Riverbend Ass'n v. Riverbend, LLC, 204 So. 3d 870, 874
(Ala. Civ. App. 2015) ("[The] premature postjudgment motion quickened
when the judgment was made final ...."); Woods v. SunTrust Bank, 81 So.
3d 357, 364 (Ala. Civ. App. 2011) (holding that a motion to reconsider
"quickened into a postjudgment motion" upon the entry of a final
judgment); and Richardson v. Integrity Bible Church, Inc., 897 So. 2d 345,
347 (Ala. Civ. App. 2004) ("[A] premature postjudgment motion that, if it
had been directed to a final judgment, would toll the time for filing a
notice of appeal from a final judgment (see Ala. R. App. P., Rule 4(a)(3))
'quickens' on the day that the final judgment is entered.").
The genesis of the "quickening" rule appears to stem from this
Court's decision in New Addition Club, Inc. v. Vaughn, 903 So. 2d 68, 72
(Ala. 2004). In that case, this Court held that a motion under Rule 50,
Ala. R. Civ. P., and, alternately, under Rule 59(e), filed before the actual
entry of the judgment is "not a nullity" and "becomes effective when the
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judgment is entered." Id. See also Ex parte Cavalier Home Builders,
LLC, 275 So. 3d 1110, 1111-12 (Ala. 2018) (holding that, under the
authority of New Addition Club, a Rule 59(e) motion challenging an
arbitration award pursuant to the process found in Rule 71B(f), Ala. R.
Civ. P., but filed before the court had entered a judgment on the award,
became effective when the court entered the judgment); Jakeman v.
Lawrence Grp. Mgmt. Co., 82 So. 3d 655, 658 (Ala. 2011) (applying New
Addition Club to a Rule 59(e) motion filed before the entry of a judgment);
and Ex parte Bates, 225 So. 3d 650, 651 (Ala. Civ. App. 2016) (holding
that, under New Addition Club, a Rule 55(c), Ala. R. Civ. P., motion to set
aside a default judgment became effective on the date of the entry of the
judgment from which it sought relief). It appears that the court in
Richardson took the rule from New Addition Club regarding a premature
motion filed before the entry of a judgment and extended it to apply to
motions filed after the entry of judgments but before they became final.
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These are not the same thing,11 but I do see the logic behind this
expansion of the New Addition Club rule.
Judge Donaldson has criticized this line of cases as follows:
"[T]he concept of a motion directed to a nonfinal judgment
'quickening' into a motion filed pursuant to Rule 59, Ala. R.
Civ. P., upon the entry of a final judgment is not found in the
Alabama Rules of Civil Procedure or in the Alabama Rules of
Appellate Procedure and could, in certain circumstances, based
on the application of Rule 59.1, Ala. R. Civ. P., present a trap
for even the most wary practitioner if a second motion is filed
raising the same grounds after the judgment is entered."
11Providing for the quickening of a postjudgment motion filed before
the entry of a judgment, as contemplated in New Addition Club, appears
to me to be a distinguishable scenario. There is no interlocutory judgment
that the movant is requesting the trial court to use its inherent power to
modify. Instead, a verdict might be returned by a jury, New Addition
Club, or an award might be made by an arbitrator, Ex parte Cavalier
Home Builders, but no judgment yet entered by the court, or a judgment
might be signed by the judge but not yet entered by the clerk, see
Jakeman. Those scenarios simply involve a delay in a ministerial process,
and the movant has truly acted prematurely instead of requesting
interlocutory relief. I do recognize, however, that the rule in New
Addition Club is not without problems. See S.S. v. T.Y., 177 So. 3d 218,
220 (Ala. Civ. App. 2015) (holding that a purported postjudgment motion
that was filed and also denied by the trial court before the trial court
actually entered the judgment must be deemed denied, for the purposes
of determining the start of the time to file a notice of appeal, on the date
the judgment was entered), and note 12, infra.
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Riverbend, 204 So. 3d at 879 (Donaldson, J., concurring specially).12
12Judge Donaldson has also questioned whether a motion filed before
the entry of a judgment can be deemed to have quickened:
"I write to note that Rule 59(e), Ala. R. Civ. P., which
addresses a motion to alter, amend, or vacate a judgment, has
been construed to apply only to a final judgment from which
an appeal could be taken. Ex parte Troutman Sanders, LLP,
866 So. 2d 547, 549-50 (Ala. 2003). Motions to alter, amend, or
vacate nonfinal orders have been held to be motions to
'reconsider' and not filed pursuant to Rule 59(e). See, e.g.,
State v. Brantley Land, L.L.C., 976 So. 2d 996, 998 n. 3 (Ala.
2007); Lambert v. Lambert, 22 So. 3d 480, 483-84 (Ala. Civ.
App. 2008). Issues can arise when more than one postjudgment
motion is filed. See, e.g., Roden v. Roden, 937 So. 2d 83 (Ala.
Civ. App. 2006) (discussing the effect of a second postjudgment
motion). Further, an order or judgment cannot be orally
rendered. Rule 58(a), Ala. R. Civ. P.; Ex parte Chamblee, 899
So. 2d 244, 248 (Ala. 2004). To avoid confusion to the bench
and bar, I think the issue whether a motion to alter, amend, or
vacate filed before the entry of a final judgment is a
'prematurely filed' motion under Rule 59 that somehow
'quickens' upon the entry of a final judgment should be
reexamined; however, we currently are bound by authority to
the contrary. New Addition Club, Inc. v. Vaughn, 903 So. 2d 68
(Ala. 2004); Jakeman v. Lawrence Grp. Mgmt. Co., 82 So. 3d
655 (Ala. 2011)."
Ex parte Williams, 185 So. 3d 1106, 1110-11 (Ala. Civ. App. 2015)
(Donaldson, J., concurring specially).
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In its order on the motion to reconsider, the trial court appears to
have rejected the proposition that Means's motion to reconsider was a
proper postjudgment motion:
"The [November 19, 2019,] Order granting the Motion for
Summary Judgment in favor of the Sanders [Lead] Defendants
was an interlocutory judgment as it did not adjudicate the
Plaintiff's claims against the [chemical defendants]. Rule 54(b),
Alabama Rules of Civil Procedure, states that an order
adjudicating fewer than all the claims pending is subject to
revision at any time before the entry of a Judgment
adjudicating all the claims; Lanier v. Surrett, 772 So. 2d 1187,
1188 (Ala. Civ. App. 2000). In Lanier, the court indicated that
a motion seeking reconsideration of a partial summary
judgment is not technically a post judgment Motion because an
interlocutory order is not a final Judgment. A trial court
retains jurisdiction to reconsider a partial summary judgment
at the request of either side or on its own initiative until that
judgment is made final either by use of Rule 54(b)[, Ala. R.
Civ. P.,] certification or by the entry of a Judgment disposing
of all claims and all parties in the action.
"....
"This court must first address whether or not it retains
jurisdiction to consider the Plaintiff's Motion. There is no
doubt that the court retained jurisdiction to consider the
Motion up and until the entry of the order granting the
dismissal of the [chemical defendants]. The entry of dismissal
of all the remaining claims and parties would be the date the
partial summary judgment became final. The Plaintiff did not
timely file any post judgment motion seeking relief from the
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final judgment. The Plaintiff's Motion for Reconsideration is
denied for lack of jurisdiction."
(Some citations omitted.)
The trial court's ruling is supported by Lanier, supra, and the
numerous opinions similarly holding that a motion to reconsider a
nonfinal judgment is simply a motion to reconsider an interlocutory order
and does not constitute a motion under Rule 59(e).
In response to an order to show cause "as to why this appeal should
be considered as timely filed," Means points out that the November 19
summary judgment was not final and that the motion to reconsider was
not a Rule 59 motion because there was no final judgment. Means then
argues that the notice of appeal was filed within 42 days of the entry of
the order denying the motion to reconsider. However, because the motion
to reconsider was not a Rule 59(e) motion, it did not, under Rule 4(a)(3),
suspend the time for filing the notice of appeal. Thus, Means's notice of
appeal was required to be filed 42 days after the trial court's judgment
became final, which did not occur. A "quickening" of the motion to
reconsider was implicitly rejected by the trial court and is not cited as a
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basis for determining that this appeal is timely. Given that the trial
court's holding is not refuted on appeal, I cannot hold that the trial court
erred. Crutcher v. Williams, 12 So. 3d 631, 635 (Ala. 2008) ("[T]his Court
is not obligated to embark on its own expedition beyond the parties'
arguments in pursuit of a reason to exercise jurisdiction."). The motion
to reconsider did not suspend the time to file the notice of appeal, and
therefore this appeal was untimely. This Court has no jurisdiction to hear
an untimely appeal, which must be dismissed. Graves v. Golthy, 21 So.
3d 720, 723 (Ala. 2009). See also Buchanan v. Young, 534 So. 2d 263, 264
(Ala.1988) ("The failure to file a notice of appeal within the time provided
in Rule 4, [Ala. R. App. P.], is a jurisdictional defect and will result in a
dismissal of the appeal."), and Rule 2(a)(1), Ala. R. App. P. ("An appeal
shall be dismissed if the notice of appeal was not timely filed to invoke the
jurisdiction of the appellate court."). I thus respectfully dissent to
affirming on the merits the trial court's summary judgment in favor of the
Sanders Lead defendants.
I am wary of the correctness of the quickening rule as it has been
applied to motions directed to nonfinal judgments. I cannot locate a
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decision of this Court explicitly adopting it. It would appear to conflict
with the requirement that a Rule 59(e) motion applies only when there is
a final judgment. Further, although there is merit to the notion that, in
general, premature motions should simply be held in abeyance until they
are ripe, a motion to reconsider an interlocutory order is a separate thing
from a postjudgment motion: a trial court retains the ability to vacate or
modify an interlocutory order, and, although no rule provides for a motion
by a party to urge the trial court to exercise that ability, I see nothing
prohibiting it. But, the motion should not be considered both a motion to
reconsider an interlocutory order and a premature Rule 50, 52, 55, or 59
motion that quickens if the trial court fails to act. The movant may intend
to challenge only the interlocutory order and not intend for the motion to
be an early filed postjudgment motion that would later quicken. Further,
a trial court may intend for its entry of the final judgment to be deemed
as having rejected the motion, leaving a party unsure of whether to file a
proper postjudgment motion or resulting in a duplicate motion.13
13This, in turn, may cause issues with the application of Rule 59.1,
Ala. R. Civ. P. See Roden v. Roden, 937 So. 2d 83, 84-85 (Ala. Civ. App.
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Additionally, if motions subject to quickening are allowed, they may
nonetheless require amendments to address new issues found in the final
judgment.
There is a need for a formal postjudgment motion to be filed after
the entry of a final judgment, as opposed to such motions being implied
from different motions. Motions under Rules 50, 52, 55, and 59 must be
filed within a certain time.14 They have the substantial effect of
suspending the time to file a notice of appeal. Rule 4(a)(3). They may
have independent restrictions on the issues they can raise that might not
necessarily apply to a motion to reconsider an interlocutory order. It thus
seems preferable to require a formal motion after the entry of a final
judgment instead of allowing one to spring from a wholly different type of
motion that was intended to serve another purpose. Because of the above,
I would be disinclined to adopt the reasoning of the line of cases relied on
2006).
14See Rules 50(b), 52(b), 55(c), and 59(e) Ala. R. Civ. P. The motion
to reconsider in this case was filed more than 30 days after the nonfinal
judgment was entered. If the judgment had been final, and the motion
filed under Rule 59(e), then it would have been untimely.
50
1190660
by the Court of Civil Appeals, but I also point out that the main opinion
does not do so. Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1210
(Ala. 2006) (holding that appellate decisions that do not decide an issue
and make it part of the case "cannot be binding precedent on the issue").
Mendheim, J., concurs.
51 | June 4, 2021 |
ed8832d0-b52a-47eb-8227-1b2d06fa37be | Ex parte A.P. | N/A | 1200531 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200531
Ex parte A.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: A.P. v. Morgan County Department of Human
Resources) (Morgan Juvenile Court: JU-18-532.04; Civil Appeals :
2190801).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
39658106-2c19-43b9-802d-d3863e8a1dc3 | Ex parte H.R.W. | N/A | 1200396 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200396
Ex parte H.R.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: H.R.W. v. DeKalb County Department of
Human Resources) (DeKalb Juvenile Court: JU-17-291.02; Civil Appeals :
2190726).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
55e1deb0-ed7f-4fc1-b080-e6647576dfa0 | Antonio Jerido v. State of Alabama | N/A | 1200165 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1200165
Antonio Jerido v. State of Alabama (Appeal from Elmore Circuit Court:
CV-19-57).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | May 14, 2021 |
098fc5b0-8b7d-4a00-a5f0-c06c53a4a466 | Ex parte Edward Washington. | N/A | 1200571 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1200571
Ex parte Edward Washington. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Edward Washington v. State
of Alabama) (Montgomery Circuit Court: CC-83-759.60; Criminal Appeals :
CR-19-0972).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
June 11, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | June 11, 2021 |
b8698021-dcc9-4dd1-ba4c-1ed099a91202 | Ex parte James Anthony Shaun Sparks. | N/A | 1200088 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200088
Ex parte James Anthony Shaun Sparks. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: James
Anthony Shaun Sparks v. State of Alabama) (Madison Circuit Court:
CC-16-2756.60; Criminal Appeals :
CR-18-0818).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
07eb0930-d8b4-4a19-bedc-2efc9500f361 | Ex parte DeWayne Walker. | N/A | 1200261 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200261
Ex parte DeWayne Walker. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: DeWayne Walker v. State of
Alabama) (Jefferson Circuit Court: CC-90-3106.60; Criminal Appeals :
CR-19-0349).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
4d777a85-5e3b-4468-8a56-863d00ae1ad5 | Jeffrey Kenneth Matthews v. U-Haul International, Inc. | N/A | 1190594 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190594
Jeffrey Kenneth Matthews v. U-Haul International, Inc. (Appeal from
Calhoun Circuit Court: CV-19-900644).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | May 14, 2021 |
95d432ad-ebf6-436f-aba1-a1ce45fbf282 | Randolph Clay Cooper v. Garland Terrance Cooper and Rebecca Cooper Bonner | N/A | 1190855 | Alabama | Alabama Supreme Court | Rel: June 25, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190855
Randolph Clay Cooper v. Garland Terrance Cooper and Rebecca Cooper
Bonner (Appeal from Baldwin Circuit Court: CV-15-900107.80).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Shaw, Bryan, Sellers, Mendheim, Stewart,
and Mitchell, JJ., concur. | June 25, 2021 |
0dc99d02-cc96-4d5e-a674-763087cdd4bf | Ex parte J.D.W. | N/A | 1200353 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200353
Ex parte J.D.W. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: J.D.W. v. Tuscaloosa County Department of
Human Resources) (Tuscaloosa Juvenile Court: JU-16-599.04; Civil Appeals
:
2190789).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bolin, Wise, Bryan,
Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
668763c8-a487-4f0c-8d52-2e2304a59fa5 | Ex parte Shon Darrell Coleman. | N/A | 1200434 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200434
Ex parte Shon Darrell Coleman. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Shon Darrell Coleman v.
State of Alabama) (Covington Circuit Court: CC-17-391; Criminal Appeals :
CR-19-0144).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
a9ab680f-2d6f-412f-b338-14b409de3d9e | Timothy Sherer v. Delta Mini Storage, LLC | N/A | 1200210 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1200210
Timothy Sherer v. Delta Mini Storage, LLC (Appeal from Walker Circuit
Court: CV-17-900359).
BOLIN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur. | May 14, 2021 |
ea095eea-80a2-4fee-910c-14621f5f3a50 | Ex parte Michael David Belcher. | N/A | 1200374 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 21, 2021
1200374
Ex parte Michael David Belcher. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Marcus David Belcher v.
State of Alabama) (Tuscaloosa Circuit Court: CC-16-161; Criminal Appeals :
CR-18-0740).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
21, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 2 1 st d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 21, 2021 |
c77dfc22-329f-4a31-83d8-067f7e71df34 | Hon v. The Jeremy K. Hon Irrevocable Family Trust, et al. | N/A | 1190682 | Alabama | Alabama Supreme Court | Rel: May 21, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190682
_________________________
Jeremy K. Hon
v.
Kevin Duane Hon, individually and as trustee of the Jeremy K.
Hon Irrevocable Family Trust, Emily Louise Hon Castellanos,
and Jason Jeremy Hon
Appeal from Madison Circuit Court
(CV-18-900351)
WISE, Justice.
1190682
Jeremy K. Hon, the plaintiff below, appeals from a summary
judgment entered by the Madison Circuit Court as to his claims against
Kevin Duane Hon, individually and as trustee of the Jeremy K. Hon
Irrevocable Family Trust ("the Trust"), Emily Louise Hon Castellanos, and
Jason Jeremy Hon, the defendants below. We affirm.
Facts and Procedural History
Jeremy K. Hon and Lynda L.B. Hon were married and had three
children -- Kevin Duane Hon, Emily Louise Hon Castellanos, and Jason
Jeremy Hon. On January 19, 2012, the plaintiff signed an agreement
("the Trust agreement") creating the Trust. Over time, the plaintiff
transferred assets to the Trust, including his and Lynda's principal
residence in Madison County; a condominium in New York, New York; his
50% interest in L&L Enterprises LLC; and over $1,000,000 in cash and
securities. Lynda died on July 30, 2017, and Kevin succeeded her as the
sole trustee of the Trust.
On February 19, 2018, the plaintiff filed a complaint in the Madison
Circuit Court against Kevin, individually and as trustee of the Trust,
Emily, and Jason. The complaint included claims for rescission of the
2
1190682
Trust agreement (count I), rescission of transfers to the Trust (count II),
reformation of the Trust agreement (count III), recoupment of money paid
on the behalf of the Trust (count IV), and alleging that the Trust had been
unjustly enriched (count V). In the complaint, the plaintiff alleged that
he had signed the Trust agreement based on "his mistaken understanding
of the effects thereof"; that he had "transferred assets to the Trust based
on his mistaken understanding of the effects of the Trust Agreement"; and
that, "due to mistake, the Trust Agreement does not accomplish his
intent." He also alleged that he had paid amounts on behalf of the Trust
that "the Trust, in equity and good conscience, should be required to
repay" to him and that the Trust "has received and retained an improper
benefit ... and has been unjustly enriched."
On July 13, 2018, the defendants filed an answer in which they
denied that the plaintiff was entitled to relief. They also asserted several
affirmative defenses. Finally, the defendants filed a counterclaim alleging
that the plaintiff had converted funds belonging to the Trust. On August
3, 2018, the plaintiff filed a reply to the defendants' counterclaim.
3
1190682
On August 16, 2018, the defendants filed a motion for a summary
judgment and a brief in support of the motion. They supported their
motion with deposition and affidavit testimony, among other things.
In his deposition, the plaintiff stated that he may have "skimmed"
parts of the Trust agreement, but he admitted that he did not read the
Trust agreement thoroughly before signing it. He admitted that, when he
signed the Trust agreement, he saw that it was irrevocable, but he stated
that he did not think about it that way. The plaintiff stated that he never
discussed the Trust with Jackson Burwell, the attorney who drafted the
Trust agreement, before he signed the Trust agreement and that Burwell
never told him that assets that were transferred to the Trust would be
beyond his reach and control. He also stated that he does not remember
Burwell saying that he would not be able to use the assets that were
transferred to the Trust during his lifetime.
The plaintiff stated that his understanding of the Trust was as
follows:
"What I understand is I will ... I would distribute some
money to my children. I think at that time was -- the purpose
was tax saving. There was some law changes. And I have no
4
1190682
problem distributing the money to my children. And [Lynda]
urge[d] me to do it and -- because at that time I foresaw the --
the potential that I may accumulate more than the
government allow, have to pay tax. Okay? So you got to do
something about it and that's for the tax purposes. The things
I didn't realize is that this will be taken away from me right in
front of me and I -- even I have all the intention to give to my
children, but I have -- the Trust name is -- my name is there,
that it is not exercise after my death. That's absolutely not my
understanding.
"My understanding was at least -- I don't know whether
Jack Burwell explain to me. In my mind, I thought when
anything pass on to your children, it's after your death. This is
not the case. This is right pick it up in front of me. And I was
a little shocked because I had been paying all the bills of the
condo, things like that and suddenly I lost the ability. I was
not identify as one of the owner, which I understand that's the
way it is, but I totally shocked that -- my understanding was
for inheritance, you pass to somebody else, is after your death,
not right in front of you while you are still alive and active.
And that was a shock to me. That was a mistaken
understanding. Have no concept. All I understand for anything
if you want to pass along, whatever name you call it, is after
your death. And I didn't know about it, I was not informed
about it.
"....
"The Trust will -- will -- will carry out all the duties after
my death. That was my understanding. Maybe
misunderstanding and there was no clarification.
"....
5
1190682
"My understanding is because usually the people, when
you pass money to your children, it's after your death. That's
-- that's common knowledge. That's my understanding. That
was the way it was supposed to be. And you can now say that
I was wrong because I didn't read all the detail. I did not read
the Trust. Okay? I was told to sign it.
"During the briefing I was not told that after certain
person is gone, like my -- after Lynda is gone, that this thing
will totally disappear from me out of my control. I did not
know that."
The plaintiff stated that he did not remember the details regarding
his signing the Trust agreement but that he did recall Burwell asking him
to sign it really quickly. He also stated that he does not have any
recollection of what Burwell told him when he signed it. Rather, he stated
that he was busy with his medical practice and was thinking about his
patients and that he trusted Lynda and Burwell.
The plaintiff testified that he thought he would have access to assets
transferred to the Trust even after he transferred them. He stated that
his belief was based on what his business partner had told him about
having a trust and still having access and control over assets in the trust
even though he did not own them. He admitted, however, that he had not
6
1190682
asked Burwell about whether he would have such access and control over
assets after he transferred them to the Trust.
The plaintiff stated that he had received telephone calls from a bank
that managed certain assets and from the firm that managed his
condominium in New York indicating that his children had taken control
of those assets and had told the bank and the firm that he did not have
access to or control over those assets. He also stated that his children had
told him he would have to pay rent or buy his house back from them if he
wanted to live in it after he had placed it in the Trust. In this regard, he
explained:
"So I assumed that will be like you -- you and you, when
you pass it on, you still can use it. But when one of my children
told me that you have to pay the rent or you buy it back from
me, now, that really hurt. Disrespectful and betrayal. That
really one of the reason that I have to have this lawsuit, is that
look, here is the things. I have all the intention to give them
everything except I did not understand that they can take it
away."
The plaintiff testified that he felt anger and a sense of betrayal because
of the lack of trust shown by his children. He also testified that his anger
and feeling of betrayal were the "impetus" for his lawsuit against the
7
1190682
defendants, and he stated that he wants his children to respect him more.
The plaintiff remembered Burwell telling him, at some point, that
the Trust would save taxes on his estate. He also admitted that he had
been concerned enough about estate taxes that he had bought an
insurance policy in the amount of approximately $2,225,000 to help cover
those taxes. However, he stated that he had decided not to renew it when
the problems started with his children.
The plaintiff testified that, even after transferring the assets to the
Trust, he still had assets in his name that were worth over $10,000,000 at
the time of the transfer and at least $18,000,000 to $20,000,000 at the
time of his deposition. He also testified that he wants to have control of
the assets in the Trust now and to decide who to give them to later
because of the way he feels he has been mistreated by his children.
The defendants presented an affidavit from Burwell, in which he
stated, in relevant part:
"4. Since 1980, after receiving my Master's in Taxation,
I have written hundreds of wills and trusts for clients and
have advised many clients about tax issues and related
matters.
8
1190682
"5. I have lectured on estate planning and taught courses
in several areas of law and tax planning.
"6. In the Summer of 2011, I represented Jeremy Hon
('Mr. Hon') and his late wife, Lynda Hon ('Mrs. Hon') for estate
planning purposes. Both Mr. and Mrs. Hon received medical
degrees, but to avoid confusion, I refer to them herein as Mr.
and Mrs.
"7. In the Summer of 2011, based on information
provided to me by Mr. and Mrs. Hon, Mr. and Mrs. Hon
maintained a considerable net worth (Mr. Hon holding the vast
majority of such net worth) that exceeded the then-effective
Federal estate and gift tax exemption amount of five million
dollars ($5,000,000), which, while effective for 2011 and 2012,
was by law set to expire on December 31, 2012 and revert to
one million dollars ($1,000,000).
"8. In the Summer of 2011, based on the then-effective
tax laws and Mr. and Mrs. Hon's considerable net worth, I
discussed with Mr. and Mrs. Hon the idea of adopting an
estate planning technique that would allow Mr. and Mrs. Hon
to mitigate the potential effect of taxes on their respective
estates, pass assets and appreciation thereon to their children
that would be unaffected by estate taxes, and remain
financially secure for the remainder of their lives.
"9. Following the discussion described above in
Paragraph 8, Mr. and Mrs. Hon expressed to me that they
desired to adopt an estate plan that achieved the goals
described above in Paragraph 8.
"10. In the Summer of 2011, I proposed to Mr. and Mrs.
Hon that I believed that one avenue to achieve the estate
planning goals described in Paragraph 8 herein was through
9
1190682
a plan that required (1) Mr. Hon to establish and transfer
assets to an irrevocable trust that would operate for the sole
benefit of Mrs. Hon during her lifetime and then, at Mrs. Hon's
death, operate for the benefit of Mr. and Mrs. Hon's children
(the 'Jeremy K. Hon Irrevocable Family Trust') and (2) Mrs.
Hon to establish and transfer assets to an irrevocable trust
that would operate for the benefit of Mr. Hon (if he exhausted
his other assets) and Mr. and Mrs. Hon's children during his
lifetime and then, at Mr. Hon's death, operate for the benefit
of Mr. and Mrs. Hon's children (the 'Lynda Hon Irrevocable
Family Trust') (collectively, the 'Irrevocable Family Trusts').
"11. Mr. and Mrs. Hon informed me that they wished to
adopt the estate plan described in Paragraph 10 herein.
"12. Prior to execution of the Irrevocable Family Trusts,
I informed Mr. Hon on more than one occasion that to achieve
the estate planning goals outlined in Paragraph 8 herein, he
would have to give away assets during his lifetime to the
Jeremy K. Hon Irrevocable Family Trust and that said trust
and the assets contained therein would not be for his benefit
or under his control.
"13. Prior to execution of the Jeremy K. Hon Irrevocable
Family Trust, Mr. Hon and I discussed that his own financial
security would be protected after the establishment of the
Irrevocable Family Trusts as he would retain ownership of
assets that, by Mr. Hon's own estimate, were worth many
millions of dollars and that if he ever exhausted such retained
assets that he would have the benefit of the assets that Mrs.
Hon transferred to the Lynda Hon Irrevocable Family Trust.
"14. Prior to the execution of the Irrevocable Family
Trusts, I created drafts of the Jeremy K. Hon Irrevocable
Family Trust (the 'Draft Jeremy K. Hon Irrevocable Family
10
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Trust') and the Lynda Hon Irrevocable Family Trust (the
'Draft Lynda Hon Irrevocable Family Trust') and mailed said
drafts to Mr. and Mrs. Hon's residence for their review.
"15. On August 11, 2011, Mrs. Hon, as grantor, and Mr.
Hon, as trustee, executed the Lynda Hon Irrevocable Family
Trust in my office.
"16. The version of the Lynda Hon Irrevocable Family
Trust that Mr. and Mrs. Hon executed on August 11, 2011 was
the same as the Draft Lynda Hon Irrevocable Family Trust.
"17. Prior to execution of the Jeremy K. Hon Irrevocable
Family Trust, Mr. Hon and I met together in person on at least
two occasions to discuss the details and effect of the proposed
estate plan described in Paragraphs 8, 10, 12, and 13 herein.
"18. On January 19, 2012, Mr. Hon, as grantor, and
Lynda Hon, as trustee, executed the Jeremy K. Hon
Irrevocable Family Trust at my office.
"19. The version of the Jeremy K. Hon Irrevocable
Family Trust that Mr. and Mrs. Hon executed on January 19,
2012 was the same as the Draft Jeremy K. Hon Irrevocable
Family Trust with a minor modification that increased Mrs.
Hon's benefit from the Trust.
"20. It is my belief that when Mr. Hon executed the
Jeremy K. Hon Irrevocable Family Trust on January 19, 2012,
he understood that he would no longer have the benefit or
control of any asset that he transfeired to the Jeremy K. Hon
Irrevocable Family Trust.
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"21. The provisions of the Jeremy K. Hon Irrevocable
Family Trust reflect Mr. Hon's intent as of January 19, 2012
as I understood it.
"22. I would not have drafted the Jeremy K. Hon
Irrevocable Family Trust and counseled Mr. Hon to sign it and
subsequently transfer assets thereto if I believed the
provisions contained therein did not reflect Mr. Hon's intent.
"23. Following Mrs. Hon's death on July 30, 2017, Mr.
Hon and his children came into conflict with one another
because Mr. Hon had reconnected with Leiru Wang ('Ms.
Wang'), a former fiancee from Mr. Hon's past, and intended to
marry her, but Mr. Hon's children did not approve of Mr. Hon's
intent to marry Ms. Wang since Ms. Wang was then married
to someone else.
"24. Based on the conflict described in Paragraphs 23,
Mr. Hon indicated to me that he wanted to stop his children
from receiving any assets as a result of Mrs. Hon's death.
"25. After Mr. Hon indicated to me that he wanted to
stop his children from receiving any assets as a result of Mrs.
Hon's death, I reminded Mr. Hon that he had a limited power
of appointment over the assets in the Lynda Hon Irrevocable
Family Trust but that his children were the beneficiaries of
the assets held in the Jeremy K. Hon Irrevocable Family Trust
as of Mrs. Hon's death.
"26. After the discussion described in Paragraph 25, I
informed Mr. Hon that in my opinion the Irrevocable Family
Trusts carried out Mr. and Mrs. Hon's intent as of 2011 and
2012.
12
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"27. On December 13, 2017, Mr. Hon indicated to me in
an email that he regretted establishing the Jeremy K. Hon
Irrevocable Family Trust because he was unable to change it
in a way to make his children show him proper respect.
"28. Following the discussion described in Paragraph 25,
Mr. Hon asked me to find a way to dissolve the Irrevocable
Family Trusts in light of his ongoing conflict with his children.
"29. I refused to honor the request described in
Paragraph 28.
"30. Mr. Hon fired me a few weeks after I refused to
honor the request described in Paragraph 28."
On August 27, 2019, the plaintiff filed a response in opposition to the
defendants' motion for a summary judgment. He relied on his own
deposition testimony and his own affidavit, among other things. In his
affidavit, the plaintiff stated, in relevant part:
"4. Around 2011-2012, Lynda hired Jackson Burwell
('Burwell') to do some estate planning work for our family.
Burwell told Lynda that we needed to set up some trusts in
order to reduce estate taxes after our death. I thought that
was a good idea.
"5. My belief was that the purpose of the estate plan was
to ensure that my children did not have to pay a high amount
of estate taxes after my death and to provide assets to my
children after my death.
13
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"6. Burwell strictly communicated with Lynda about the
estate plan. At the direction of Lynda, Burwell drafted the
Jeremy K. Hon Family Trust (the 'Jeremy Hon Trust') which
named Lynda as the sole trustee and Kevin as successor
trustee. I am the grantor of the Jeremy Hon Trust. I had no
involvement with the drafting of the Jeremy Hon Trust.
"7. I believed that Burwell drafted the Jeremy Hon Trust
in a way that would leave my assets to Lynda or my children,
if Lynda predeceased me, at my death. I trusted Burwell to
create such an estate plan. I had every intention of passing my
assets to my children at my death.
"8. Before signing the Jeremy Hon Trust, I briefly
skimmed the provisions. Burwell did not explain to me that I
would not have access or control over the assets in the Jeremy
Hon Trust during my lifetime. I was under the mistaken belief
that I would still be able to live in my principal residence
without having to pay the Jeremy Hon Trust rent or purchase
my home from the trust.
"9. Based on this belief, I signed the Jeremy Hon Trust
and took the necessary steps to transfer my assets into the
Trust.
"10. Lynda passed away from cancer on July 30, 2017.
Only then did I realize that Burwell did not draft the Jeremy
Hon Trust in conformity with my intentions and that the
Jeremy Hon Trust and the Lynda L.B. Hon Irrevocable Family
Trust (the 'Lynda Hon Trust') were unequal.
"11. I relied on Burwell to explain the differences
between my Trust and the Lynda Hon Trust and believed that
he created an estate plan that benefitted both myself and
Lynda equally.
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"12. I would not have transferred my assets to the
Jeremy Hon Trust if I had known that I would not have access
to the assets, particularly my residence, during my lifetime."
On October 23, 2019, the defendants filed a reply to the plaintiff's
response in opposition to their motion for a summary judgment. They
prefaced their reply by stating that they had made a prima facie showing
that the plaintiff could not prove entitlement to relief on his claims under
a theory of unilateral mistake, and they added that the plaintiff had not
presented substantial evidence to rebut their evidence.
On November 1, 2019, the trial court conducted a hearing on the
defendants' motion for a summary judgment. Thereafter, that court
entered the following judgment granting the motion:
"This matter came to be heard on November 1, 2019
before the honorable Judge Chris Comer, Circuit Judge for
Madison County, Alabama, upon the Defendants' Motion for
Summary Judgment ('Motion'). The Plaintiff, Dr. Jeremy K.
Hon responded in opposition to the Motion ('Response in
Opposition').
"Both the Plaintiff and counsel for Plaintiff failed to
appear before the Court in the hearing on the Motion and
Response in Opposition. Despite the absence of Plaintiff and/or
his counsel, the Court conducted a full hearing on the
substance of the Motion. The Court, after hearing statements
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from Defendants' counsel on the arguments and authorities set
forth in the Motion and the Response in Opposition, in a ruling
from the bench, found the Defendants' arguments persuasive.
"Based on the pleadings, the argument of Defendants'
counsel, the arguments and authorities set forth in the Motion
and Response in Opposition, and the entire record of this
cause, the Court finds that the Motion is well-taken and is
therefore GRANTED.
"Based on the foregoing, as well as the entire record of
this cause, it is hereby ORDERED, ADJUDGED and
DECREED that the Defendants' Motion for Summary
Judgment is hereby GRANTED. Costs are taxed as paid."
(Capitalization in original.)
On November 19, 2019, the plaintiff filed a motion to alter, amend,
or vacate the summary judgment in favor of the defendants. On
November 20, 2019, the defendants responded. The plaintiff's
postjudgment motion was denied by operation of law. The parties filed a
"Joint Stipulation of Dismissal of Defendants' Counterclaim," and the trial
court entered an order dismissing the counterclaim on May 18, 2020. This
appeal followed.
Standard of Review
" ' "This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut.
16
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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, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial 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)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
" 'The role of this Court in reviewing a summary
judgment is well established -- we review a summary judgment
de novo, " 'apply[ing] the same standard of review as the trial
17
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court applied.' " ' Horn v. Fadal Machining Ctrs., LLC, 972 So.
2d 63, 69 (Ala. 2007) (quoting Stokes v. Ferguson, 952 So. 2d
355, 357 (Ala. 2006), quoting in turn Dow v. Alabama
Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004)). ' "If the
movant meets [its] burden of production by making a prima
facie showing that [it] is entitled to a summary judgment,
'then the burden shifts to the nonmovant to rebut the prima
facie showing of the movant.' " ' Horn, 972 So. 2d at 69
(quoting American Gen. Life & Accident Ins. Co. v.
Underwood, 886 So. 2d 807, 811-12 (Ala. 2004), quoting in turn
Lucas v. Alfa Mut. Ins. Co., 622 So. 2d 907, 909 (Ala. 1993)).
" ' " ' [ T ] h e
m a n n e r
i n
w h i c h
t he
[summary-judgment]
movant's
burden
of
production is met depends upon which party has
the burden of proof ... at trial.' " Ex parte General
Motors Corp., 769 So. 2d 903, 909 (Ala. 1999)
(quoting Berner v. Caldwell, 543 So. 2d 686, 691
(Ala. 1989) (Houston, J., concurring specially)). If
... " 'the movant has the burden of proof at trial, the
movant must support his motion with credible
evidence, using any of the material specified in
Rule 56(c), [Ala.] R. Civ. P. ("pleadings, depositions,
answers to interrogatories, and admissions on file,
together with the affidavits").' " 769 So. 2d at 909.
" 'The movant's proof must be such that he would
be entitled to a directed verdict [now referred to as
a judgment as a matter of law, see Rule 50, Ala. R.
Civ. P.] if this evidence was not controverted at
trial.' " Id. In other words, "when the movant has
the burden [of proof at trial], its own submissions
in support of the motion must entitle it to judgment
as a matter of law." Albee Tomato, Inc. v. A.B.
Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir.
1998) (emphasis added). See also Equal
18
1190682
Employment Opportunity Comm'n v. Union
Independiente de la Autoridad de Acueductos y
Alcantarillados de Puerto Rico, 279 F.3d 49 (1st
Cir. 2002); Rushing v. Kansas City Southern Ry.,
185 F.3d 496 (5th Cir. 1999); Fontenot v. Upjohn
Co., 780 F.2d 1190 (5th Cir. 1986); Calderone v.
United States, 799 F.2d 254 (6th Cir. 1986).'
"Denmark v. Mercantile Stores Co., 844 So. 2d 1189, 1195 (Ala.
2002). Moreover, we review the evidence in the light most
favorable to the nonmovant. Wilson v. Brown, 496 So. 2d 756,
758 (Ala. 1986).
"....
" 'In order to overcome a defendant's properly supported
summary-judgment motion, the plaintiff bears the burden of
presenting substantial evidence as to each disputed element of
[its] claim.' Ex parte Harold L. Martin Distrib. Co., 769 So. 2d
313, 314 (Ala. 2000)."
White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 10-11 (Ala. 2009).
Discussion
I.
The plaintiff argues that the trial court erred in granting a summary
judgment in favor of the defendants on the ground that he did not have
standing, as to the grantor or settlor, to bring claims to rescind and/or to
reform the Trust agreement. With regard to standing, in their motion for
19
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a summary judgment, the defendants argued that the plaintiff could not
show any set of facts that would support his claims for rescission and/or
reformation of the Trust agreement. Specifically, they contended that
Alabama law does not allow him, as the grantor or settlor of the Trust, to
pursue a claim for rescission or reformation. In this regard, the
defendants asserted:
"Pursuant to the AUTC [the Alabama Uniform Trust
Code ('the AUTC'), Sec. 19-3B-101 et seq., Ala. Code 1975], a
noncharitable irrevocable trust may only be terminated,
modified, or reformed under the provisions set forth in sections
19-3B-411 - 19-3B-416 of the AUTC. However, a proceeding to
terminate, modify, or reform a trust under such sections of the
AUTC cannot be brought by just anyone. Specifically, section
19-3B-410(b) of the AUTC ('Section 19-3B-410(b)') provides
that 'a proceeding to approve or disapprove a proposed
modification or termination' of a noncharitable irrevocable
trust under sections 19-3B-411 - 19- 3B-416 of the AUTC 'may
be commenced by a trustee or beneficiary,' while the Grantor
of a charitable trust 'may maintain a proceeding to modify the
trust under section 19-3B-413 [of the AUTC],' which pertains
to the doctrine of cy pres. Ala. Code 1975, § 19-3B-410(b)
(emphasis added). Accordingly, the AUTC specifically vests the
trustee or a beneficiary of a trust, not the Grantor, with the
authority to move the court to modify or terminate a trust such
as the one at issue here. Id.
"The 2013 Restated Comments to Section 19-3B-410(b)
(the 'Comments') provide clear guidance as to who exactly has
standing to pursue court action for termination, modification,
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or reformation of a trust under sections 19-3B-411 - 19-3B-417
of the AUTC. The Comments note that Section 19-3B-410(b)
'specifies the persons who have standing to seek court approval
or disapproval of proposed trust modifications, terminations,
combinations, or division ... and makes the settlor an
interested person with respect to a judicial proceeding brought
by the beneficiaries under Section 411 to terminate or modify
a trust.' Ala. Code 1975, § 19-3B-410, Restated 2013
Comments. To further emphasize the fact that the common
law serves only as supplement to the AUTC and not an
override thereof, the Comments specifically state that Section
19-3B-410(b) operates contrary to Restatement (Second) of
Trusts § 391 (1959) in that Section 19-3B-410(b) specifically
grants a Grantor the power to petition the court under section
19-3B-413 of the AUTC to apply cy pres to modify a charitable
trust. Id.
"....
"The sentence structure of Section 19-3B-410(b) shows
that the legislature clearly contemplated a Grantor's role in
commencing actions to terminate, modify, or reform a trust
under the AUTC and chose to specifically limit such role to
reformation under Section 19-3B-413 of the AUTC. Section
19-3B-413 of the AUTC is inapplicable to this matter. The first
sentence of Section 19-3B-410(b) states that a proceeding to
approve or disapprove a proposed modification or termination
of a trust pursuant to Sections 19-3B-411 through 19-3B-416
of the AUTC may be brought by a trustee or beneficiary. The
very next sentence of Section 19-3B-410(b) modifies the
previous sentence by providing the caveat that a Grantor may
commence a proceeding to modify a charitable trust pursuant
to Section 19-3B-413 of the AUTC. If the legislature intended
to permit Grantors to pursue an action to terminate, modify,
or reform a trust under Sections 19-3B-411 through 19-3B-416
21
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of the AUTC and not just under Section 19-3B-413 of the
AUTC, then there would be no need to ever include the second
sentence of Section 19-3B-410(b) because it would be
unnecessary.
"Accordingly,
this
Court
should
read
Section
19-3B-410(b) to authorize only the trustee or a beneficiary to
bring a claim for modification, termination, or reformation of
the Trust. As the Plaintiff is the Grantor and not a trustee or
beneficiary of the Trust, he is not permitted to maintain an
action for termination, modification or reformation of the
Trust."
Therefore, the defendants argued that they were entitled to a summary
judgment as to the counts seeking rescission (count I) and reformation
(count III) of the Trust agreement.
In his response in opposition to the defendants' motion for a
summary judgment, the plaintiff argued that, as the grantor or settlor of
the Trust, he had standing to bring suit to rescind or reform the Trust
agreement. He relied on § 19-3B-415, Ala. Code 1975, which provides:
"The court may reform the terms of a trust, even if
unambiguous, to conform the terms to the settlor's intention
if it is proved by clear and convincing evidence that both the
settlor's intent and the terms of the trust were affected by
mistake of fact or law, whether in expression or inducement."
22
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In the alternative, the plaintiff argued that, if § 19-3B-410(b), Ala. Code
1975, applies, as argued by the defendants, the plain language of that
statute does not explicitly prohibit a grantor or settlor from maintaining
an action to modify or terminate a trust. Therefore, he contended that he
had the capacity to bring the suit to reform the Trust pursuant to § 19-3B-
415.
In their reply to the plaintiff's response in opposition to the motion
for a summary judgment, the defendants argued as follows:
"The Plaintiff's argument is that while Section 19-3B-
410(b) states that a trustee or beneficiary 'may' bring a suit
under the AUTC to modify or terminate a trust, the use of the
word 'may' means that the list of persons in Section
19-3B-410(b) who have the authorization to bring such a suit
is not limited to only a trustee or beneficiary of a trust. In
other words, if the Section 19-3B-410(b) used the word 'shall'
instead of 'may,' then the list of persons in Section
19-3B-410(b) who have the authorization to sue to modify or
terminate a trust under the AUTC would be limited to only a
trustee or beneficiary of a trust. The Plaintiff's argument is
paradoxical and proposes a seemingly impossible construction
of the statute.
"Alabama has clear rules of statutory construction that
apply to the present issues raised by the Plaintiff:
" '(1) Permissive words in a statute may be
construed as being mandatory in those cases where
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the public interest and rights are concerned and
where the public or third persons have a claim de
jure.
" '(2) A statute must be considered as a whole
and every word in it made effective if possible.'
"Ala. State Bd. of Health ex rel. Baxley v. Chambers Cty., 335
So. 2d 653, 654-55 (Ala. 1976) (internal citations omitted).
Starting with (1) above, 'permissive words in a statute may be
construed as being mandatory in those cases where ... third
persons have a claim de jure.' In the present case, Section
19-3B-410(b) establishes a 'claim de jure' for third persons --
trustees and beneficiaries. Therefore, the word 'may' can be
considered to be mandatory in such a context because it is
intended to establish a claim de jure. Moving onto (2) above, 'a
statute must be considered as a whole and every word in it
made effective as possible.' The second sentence of Section
19-3B-410(b), which the Plaintiff ignores, is one which
establishes a right in the settlor of a trust to pursue judicial
modification of a charitable trust under Section 19-3B-413.
This sentence permits a settlor, in conjunction with a trustee
or beneficiary, to pursue a modification of a charitable trust.
This begs the question of why have a distinction made by the
legislature with regards to a settlor being able to pursue an
action to modify a trust under Section 19-3B-413 and not any
of the other sections for modifying or terminating a trust
covered by Section 19-3B-410(b)?
"The legislature clearly had the settlor in mind when it
adopted its version of Section 410(b) of the Uniform Trust Code
('UTC') as it states that a trustee or beneficiary may commence
an action under Sections 19-3B-411 through 19-3B-417 and
that a settlor may bring an action to modify a trust under
Section 19-3B-413. A plain and unforced reading of the statute
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reveals that the legislature did not intend for a settlor to be
permitted to bring an action for modification or termination
under any section of the AUTC other than 19-3B-413. The
context of the Section 19-3B-410(b) provides a simple
expression and implication that the parties specifically
mentioned alongside a named statute are those that are
authorized to bring actions under such statutes.
"The official comments to Section 19-3B-410(b) support
such a plain language reading:
" 'Persons who have standing to seek approval of
proposed trust modifications.
" 'Subsection (b) specifies the persons who have
standing to seek court approval or disapproval of
proposed
trust
modifications,
terminations,
combinations, or divisions. An approval or
disapproval may be sought for an action that does
not require court permission, including a petition
questioning
the
trustee's
distribution
upon
termination of a trust under $50,000 (Section 414),
and a petition to approve or disapprove a proposed
trust division or consolidation (Section 417).
Subsection (b) makes the settlor an interested
person with respect to a judicial proceeding
brought by the beneficiaries under Section 411 to
terminate or modify a trust. Contrary to
Restatement (Second) of Trusts § 391 (1959),
subsection (b) grants a settlor standing to petition
the court under Section 413 to apply cy pres to
modify the settlor's charitable trust.'
"Ala. Code § 19-3B-410(b), cmt. (emphasis added). This
uniform comment, which has been included by the legislature,
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makes clear that the parties specifically mentioned in Section
19-3B-410(b) are the individuals who have standing to seek
court approval to terminate or reform a trust. It is interesting
to note that the uniform comment mentions that the settlor is
an interested party in a action under Section 19-3B-411 to
modify or terminate a trust, but still does not say that the
settlor is authorized to maintain an action. Accordingly, in
light of the plain language of Section 19-3B-410(b) and the
official comment thereto, trustees and beneficiaries are the
only parties who have standing to maintain an action to
terminate or reform a non-charitable irrevocable trust under
the AUTC.
"Such a plain reading of Section 19-3B-401(b) is not an
anomaly. The uniform comments to Section 19-3B-410(b)
further state that, 'Section 410 is the same as Section 410 of
the Uniform Trust Code (2001).' Ala. Code § 19-3B-410, cmt.
Along with Alabama, the vast majority of states have adopted
the UTC. The Restatement (Third) of Trusts comments on the
scope of Section 19-3B-401(b) of the UTC and notably adopts
a plain reading of Section 19-3B-410(b) that does not infer that
a settlor may also bring a petition to modify or terminate a
trust under Sections 19-3B-411 through 19-3B-417 of the UTC
(other than Section 19-3B-413). See Restatement (Third) of
Trusts § 994, fn.3.
"Despite the broad and wide adoption of the UTC, there
is an absence of significant discussion of the scope of UTC
Section 410(b). As such, Alabama is not alone in its lack of case
law concerning this section. However, the state of Ohio
adopted the UTC and the Ohio Court of Appeals has
specifically addressed the intended scope of Section 410(b),
including the use of the word 'may' therein. In fact, the Ohio
Court of Appeals entertained the exact same argument that
the Plaintiff now makes: because Section 410(b) does not
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explicitly provide that 'only' a trustee or beneficiary may bring
claims within the scope of Section 410(b), nor does it expressly
provide that other persons do 'not' have the authority to bring
such claims, Section 410(b) was not intended to limit such
claims to only trustees and beneficiaries of trusts. Kryder v.
Kryder, 2012 Ohio 2280 [(No. 25665, May 23, 2012)] (Ohio
App. 9 Dist. 2012)....
"The Kryder Court noted that Ohio's Trust Code was
modeled after the UTC and provides through its version of
Section 410 of the UTC that 'proceedings to modify or
terminate trusts "may be commenced" by a trustee or
beneficiary.' Id. The court then highlighted the uniform
comments to Ohio's version of Section 410 of the UTC, which
state that the language of said section 'specifies the persons
who have standing to seek court approval or disapproval of
proposed trust modifications, terminations, combination, or
divisions.' Id. It should be noted that Ohio's and Alabama's
version of Section 410(b) of the UTC and the official comments
thereto are the same. The Ohio Court of Appeals construed
Ohio's version of Section 410 of the UTC according to the rules
of grammar and common usage and the maxim expressio unis
est exclusio alterius (meaning 'the express inclusion of
requirements in the law implies an intention to exclude other
requirements not so included'). The Kryder Court ultimately
held that Ohio's version of Section 410, by explicitly
identifying a 'trustee' and a 'beneficiary' as those who 'may'
bring causes of action to modify or terminate a trust under the
Ohio Trust Code, was intended to exclude all other persons
from having authority to pursue those statutory claims.
"The Defendants appreciate that the Kryder case is an
unreported Ohio Court of Appeals case. However, it is provided
to the Court as the only national example of consideration of
the specific issue raised by the Plaintiff. As Section 410(b) in
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Ohio and Alabama was adopted from the UTC, uniformity of
interpretation and application of the UTC would seem to be
desirable. The Alabama Legislature and drafters of the AUTC
recognized this in Section 19-3B-1201 of the AUTC: 'In
applying and construing this uniform act, consideration must
be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.' Ala.
Code § 19-3B-1201. Accordingly, although this Court is
certainly not bound by decisions of an Ohio court, the Kryder
decision should be considered persuasive as Ohio and Alabama
have both adopted the same UTC and uniformity of law is a
stated goal among such adopting states.
"The Court, even excluding consideration of the Kryder
case, can clearly see that the legislature (as evidenced by their
highly relevant comments) intended for Section 19-3B-410(b)
to empower trustees and beneficiaries as the only parties with
standing to bring a claim to rescind or reform a trust. Basic
common sense tells us that no reasonable reader can
undertake a plain, straightforward reading of Section
19-3B-410(b) and conclude that the legislature intended to
grant settlors a power to pursue actions under the AUTC to
modify or terminate a trust (unless such action is brought
pursuant to Section 19-3B-413). Using the Plaintiff's logic,
because Section l9-3B-410(b) does not specifically exclude any
person from bringing a suit to modify or reform a trust under
Sections 19-3B-411 through 19-3B-4l7, then any person has
standing to bring such a suit no matter how far removed he,
she, or it is in relation to the trust. The Plaintiff's reading of
Section 19-3B-410(b) strains the bounds of reason.
"Accordingly, in light of the plain language of Section
19-3B-410(b) and the official comment thereto, a trustee or
beneficiary are the only parties who have standing to maintain
an action to terminate or reform a non-charitable irrevocable
28
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trust. As the Plaintiff is not a trustee or beneficiary of the
Trust Agreement, he does not have standing to maintain an
action to terminate or reform the Trust Agreement under the
AUTC. Because the Plaintiff does not have standing to
maintain such an action, the Defendants respectfully request
that this Court enter an order granting their Motion for
Summary Judgment with respect to Counts I and III of the
Complaint."
In his response to the motion for a summary judgment, the plaintiff
also argued that he had a common-law right to seek rescission or
reformation of the Trust agreement that was not displaced by the
Alabama Uniform Trust Code ("the AUTC"), Sec. 19-3B-101 et seq., Ala.
Code 1975. Specifically, he referenced Restatement (Third) of Trusts § 62
cmt. b. (Am. Law Inst. 2003), which provides:
"Even if the will or other instrument creating a donative
testamentary or inter vivos trust is unambiguous, the terms of
the trust may be reformed by the court to conform the text to
the intention of the settlor if the following are established by
clear and convincing evidence: (1) that a mistake of fact or law,
whether in expression or inducement affected the specific
terms of the document; and (2) what the settlor's intention
was. ..."
In their reply, the defendants asserted that the common law does not
allow the plaintiff standing to seek rescission and reformation of the Trust
agreement, arguing as follows:
29
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"The Plaintiff further argues that even if the AUTC does
not allow him to maintain his claims for rescission and
reformation of the Trust Agreement, the common law
supplements the AUTC to the extent that it allows him to
override the provisions of the AUTC and maintain such claims.
Respectfully, Plaintiff has misread and misinterpreted the law
pertaining to the application of the common law to the AUTC.
"Plaintiff's argument ignores the fact that the AUTC
'applies to ... all judicial proceedings concerning trusts
commenced on or after January 1, 2007.' Ala. Code §
19-3B-1204(a)(1) and (2). Further, the plain language of
Section 19-3B-106 states that while the common law of trusts
and principles of equity do supplement the AUTC, such
common law and principles of equity do not override the
statutory language of the AUTC where the AUTC has modified
such common law and principles of equity. See Ala. Code §
19-3B-106 ('The common law of trusts and principles of equity
supplement this chapter, except to the extent modified by this
chapter or another statute of this state.') (emphasis added). In
other words, the provisions of the AUTC apply to all judicial
proceedings concerning the Trust Agreement, even if the
action is brought pursuant to common law; and, if the AUTC
conflicts with the common law of trusts and principles of
equity in such action, the language of the AUTC controls.
Accordingly, an analysis as to whether Plaintiff has the right
to seek rescission or reformation of the Trust Agreement must
begin with the application of the AUTC. Only if the AUTC is
intentionally silent on the issue is it then proper to look for
supplementation of the AUTC by common law. Plaintiff's
claims to rescind, or in the alternative, reform the Trust
Agreement are under the purview of the AUTC and therefore
consideration of supplanted common law is not proper.
30
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"Plaintiff then argues that even if the AUTC operates
with respect to the common law in the way Defendants
describe and the Defendants are correct that Section 19-
3B-410(b) allows only trustees and beneficiaries to only have
standing to pursue actions to modify or terminate the Trust
Agreement, he still has standing to pursue his claims under
the common law because they are not subject to Section
19-3B-410(b). The basis for Plaintiff's argument is that his
claims are for 'rescission' and 'reformation' of the Trust
Agreement and Section 19-3B-410(b) is inapplicable because it
only applies to actions for 'termination' and 'modification' of
trusts like that of the Trust Agreement. The Plaintiff has
failed to explain how 'rescission' differs from 'termination' or
how 'reformation' differs from 'modification.' At any rate, a
plain reading of the statute reveals the critical flaw in
Plaintiff's argument.
"Section 19-3B-410(b) is as follows:
" 'A proceeding to approve or disapprove a proposed
modification
or
termination
under
Section
19-3B-411 through 19-3B-416, or trust combination
or division under Section 19-3B-417, may be
commenced by a trustee or beneficiary. The settlor
of a charitable trust may maintain a proceeding to
modify the trust under Section 19-3B-413.'
"Ala. Code § 19-3B-410(b). A careful review of the AUTC
Sections 19-3B-411 through 19-3B-417 reveals that the
Alabama Legislature supplanted all common law claims for
rescission or reformation within these sections. Section
19-3B-411 of the AUTC applies to modifications or
terminations of noncharitable irrevocable trusts by consent
among the parties. Section 19-3B-412 applies to actions to
modify or terminate a trust because of unanticipated
31
1190682
circumstances or inability to administer the trust effectively.
Section 19-3B-413 applies to actions concerning charitable
trusts and the application of the cy pres doctrine thereto.
Section 19-3B-414 applies to modifications or terminations of
uneconomic trusts. Section 19-3B-415 applies to actions to
reform trusts to correct mistakes. Section 19-3B-416 applies to
actions to modify a trust to achieve a settlor's tax objectives,
and Section 19-3B-417 applies to actions to combine or divide
trusts. Accordingly, Plaintiff's actions to rescind or reform the
Trust Agreement are within the governance of Section
19-3B-410(b) because all possible common law claims for
rescission or reformation have been supplanted by the AUTC,
including, but not limited to, Plaintiff's claim for unilateral
mistake, which would fall under Section 19-3B-411. Thus,
Section 19-3B-410(b) governs the question of legal standing in
this case.
"Although the Plaintiff argues that he has standing
under the common law to pursue his claims, the Plaintiff has
not cited a single case in Alabama that confirms that, since the
passage of the AUTC, a settlor of a trust holds a common law
right, in derogation of the AUTC language, to maintain an
action for rescission or reformation of an irrevocable,
noncharitable trust. While the Plaintiff does cite to Alabama
cases in his response to the Defendants' argument that a
settlor may not maintain an action to reform or rescind the
Trust Agreement, every single one of those cases concerns only
reformation of an instrument of conveyance, and not
reformation or rescission of a trust. As the Plaintiff's
Complaint does not seek reformation of any deed or other
instrument of conveyance, such cases are wholly irrelevant in
this case. Rather, the Plaintiff's only support with respect to
his ability to pursue claims for rescission and reformation of a
trust comes from secondary sources: Mary F. Radford, George
Gleason Bogert & George Taylor Bogert, The Law of Trusts
32
1190682
and Trustees § 991 (2017 update) and Restatement (Third) of
Trusts § 333 cmt. e. But, again, while the AUTC does permit
supplementation of the AUTC by the common law of trusts and
principles of equity, the AUTC does not permit consideration
of such common law or principles of equity when there has
been abrogation by the AUTC. Such abrogation has occurred
in not only Sections 19-3B-410(b) through 19-3B-417, but
plainly appears in Section 19-3B-406 as well, which directly
relates to rescission or reformation of a trust and specifically
addresses whether Section 333 of the Restatement of Trusts
has been adopted or otherwise incorporated into the AUTC.
"Specifically, Section 19-3B-406 of the AUTC states that,
'a trust is void to the extent its creation was induced by fraud,
duress, or undue influence.' Ala. Code § 19-3B-406. Further,
the uniform comment to Section 19-3B-406 of the AUTC states
as follows, 'This section is a specific application of Restatement
(Third) of Trusts § 12 and Restatement (Second) of Trusts §
333, which provide that a trust can be set aside or reformed on
the same grounds as those which apply to a transfer of
property not in trust, among which include undue influence,
duress, and fraud, and mistake. This section addresses undue
influence, duress, and fraud. For reformation of a trust on
grounds of mistake, see Section 415....' Ala. Code § 19-3B-406,
cmt. ('The statutory text of the Uniform AUTC is also
supplemented by these Comments, which, like the Comments
to any Uniform Act, may be relied on as a guide for
interpretation.' Ala. Code § 19-3B-106, cmt.). The plain reading
of this uniform comment to Section 19-3B-406 is that the
AUTC adopts the common law approach to rescission of a trust
on the grounds of duress, fraud, and mistake, but has
specifically rejected the common law approach to rescission on
the basis of mistake. The only envisioned remedy for mistake
under the AUTC is reformation under Section 19-3B-415,
which is subject to the standing considerations expressed in
33
1190682
Section 19-3B-410(b) that do not permit a settlor to bring an
action for such remedy. ...
"Through Section 19-3B-406 and Sections 19-3B-410
through 19-3B-417 of the AUTC, the Alabama Legislature
codified the permissible methods for judicial rescission or
reformation of a trust instrument. As such, a common law
cause of action for the Plaintiff that acts as a 'supplementation'
to the AUTC does not exist. Accordingly, as the Alabama
Legislature made clear in Section 19-3B-410(b) of the AUTC,
both in the plain language of the provision itself as well as
through the official comments to said section, only a trustee or
beneficiary of the Trust Agreement has standing to maintain
an action to rescind or reform the Trust Agreement. ... As the
Plaintiff is not a trustee or beneficiary of the Trust Agreement,
he does not have standing [to] maintain his claims to rescind
and reform the Trust Agreement. Because the Plaintiff does
not have standing to maintain his claims to rescind and reform
the Trust Agreement, the Defendants respectfully request that
this Court grant the Defendants' Motion for Summary
Judgment with respect to Counts I and III of the Complaint."
The defendants thoroughly set forth statutes and caselaw that
appear to have established a prima facie case that the plaintiff did not
have standing, under either the AUTC or the common law, to pursue a
claim for rescission or reformation. The plaintiff presented arguments to
support his position to the contrary, but the defendants addressed the
plaintiff's contentions and set forth arguments and authority that clearly
refuted the plaintiff's assertions. Accordingly, to the extent the trial court
34
1190682
entered the summary judgment on the ground that the plaintiff did not
have standing to pursue claims for rescission and reformation, it correctly
concluded that the defendants had established that the plaintiff did not
have standing to pursue those claims.
II.
Even if the trial court did not base the summary judgment on the
conclusion that the plaintiff did not have standing to pursue his claims for
reformation or rescission of the Trust agreement, the plaintiff still failed
to establish that he is entitled to relief. In his brief to this Court, the
plaintiff argues that the trial court erred in entering a summary judgment
in favor of the defendants on the basis that he failed to present clear and
convincing evidence as to his mistaken understanding of the terms of the
Trust agreement.
In their motion for a summary judgment, the defendants addressed
the plaintiff's claims that he executed the Trust agreement and made
transfers to the Trust under a mistaken understanding that he could
benefit from and control the Trust assets because he allegedly was not
informed of the actual effect of the Trust agreement:
35
1190682
"The Plaintiff is not only literate, but is tremendously
gifted intellectually; he fluently speaks and reads in two
languages: English and Chinese (in both the Cantonese and
Mandarin
forms);
received
a
bachelor's
degree
in
pharmaceutical studies from Samford University; received a
doctorate of medicine from the University of Alabama at
Birmingham School of Medicine; completed a residency in
internal medicine at the University of Texas Health Science
Center in Houston, Texas; received a fellowship in
oncology/hematology at the University of Texas Health Science
Center in San Antonio, Texas; is a board certified oncologist
and internist who currently practices medicine in Huntsville,
Alabama and has done so since 1985; and has co-authored at
least twelve (12) medically based publications, the titles to
some of which take some real concentration to pronounce (e.g.,
'Community-Based
Phase
II
Trial
of
Peniostatin,
Cycolphosphamide, and Rituxmah (PCR) Biochemotherapy in
Chronic Lymphocytic Leukemia and Small Lymphocytic
Lymphoma,' 'Zoledronic Acid is Superior to Pamidronate in the
Treatment of Hypercalcemia of Malignancy: A Pooled Analysis
of Two Randomized, Controlled Clinical Trials,' and
'Patient-Reported
Neuropathy
and
Taxane-Associated
Symptoms in a Phase 3 Trial of nab-Paclitaxel Plus
Carhoplatin versus Solvent-Based Paclitaxel Plus Carhoplatin
for Advanced Non-Small-Cell Lung Cancer')."
The defendants asserted: "Had the Plaintiff taken the time to read only
page one (1) of the Trust prior to signing it, the provisions contained
thereon would have informed him that the Trust did not allow him to
benefit from or control the Trust assets." They then cite Item One and
36
1190682
Item Three that are included on page one of the Trust agreement. With
regard to creation of the Trust, Item One of the Trust agreement provided:
"I contemplate that I will also transfer, set over, convey
or assign additional property to be held in trust in conformity
with this instrument; and upon any such transfer, conveyance
or assignment from time to time made, my Trustee shall have
all the interest, rights, powers, options, incidents of ownership,
advantages, titles, benefits and privileges which I now have or
hereafter may have in and to said property."
Item Three of the Trust agreement provided:
"The Trust shall be irrevocable, and I shall have no right
to alter, amend, revoke or terminate this Trust or any
provision hereof. After the execution of this Trust, I shall have
no right, title or interest in the income or principal of this
Trust, and I shall have no interest, right, power, option,
incident of ownership, advantage, title, benefit or privilege in
any property constituting a part of this Trust fund. In no
event shall the income or principal of this Trust be used to pay
my legal obligations or my debts. In no event shall my estate
or I have any reversionary or similar type interest in this
Trust or in the property contained herein. Furthermore,
notwithstanding any other provision in this document, I am
disqualified to serve as Trustee of any Trust found within this
document."
The defendants also pointed out that Burwell had testified that,
before the plaintiff signed the Trust agreement, he had told the plaintiff
on more than one occasion that the Trust assets would not be for his
37
1190682
benefit or under his control. In contrast, they noted that the plaintiff had
stated that the only things he remembers from his conversations with
Burwell about the Trust agreement were that the Trust would mitigate
the effect of estate taxes on his estate and that the Trust was a way to
transfer assets to Lynda and their children; that he did not recall whether
Burwell had told him that he could not use the Trust assets or whether
Burwell had explained the key provisions of the Trust to him; and that he
had stated that it was not his testimony that Burwell had never told him
that the Trust assets would be beyond his reach. Therefore, the
defendants concluded that, because the plaintiff did not fulfill his duty to
read the Trust agreement before signing it and because he could not show
that Burwell had not informed him that he would not be able to benefit
from or control the Trust, he could not support his claims to the contrary
and, thus, that the defendants were entitled to a summary judgment as
to all counts included in the complaint.
The defendants also specifically argued that the plaintiff could not
sufficiently support a claim for rescission of the Trust agreement and
transfers of property to the Trust under a theory of unilateral mistake.
38
1190682
Specifically, citing Gray v. Bain, 164 So. 3d 553 (Ala. 2014), they
contended that "the only way the Plaintiff can maintain an action for
rescission of the Trust and transfers thereto due to a unilateral mistake
is if said mistake was the result of some fraud or misrepresentation, was
known to Lynda, and was unmixed with negligence." However, they then
asserted that the plaintiff had admitted that the only basis for his belief
that he could benefit from and control the assets of the Trust was a
conversation the plaintiff had had with a nonlawyer partner in his medical
practice, who had told him that he had a trust of his own that allowed him
to control the trust assets even though he was no longer the owner of
those assets; that the plaintiff had negligently assumed that his Trust
would function in the same way; and that, before signing the Trust, he did
not ask Burwell any questions "to confirm whether his assumption as to
the effect of the Trust matched the actual effect of the Trust." The
defendants also asserted that the plaintiff had not alleged that either
Lynda or Burwell had made any representations that had led him to
believe that he could benefit from or control the Trust. Further, they
alleged:
39
1190682
"[T]he undisputed facts establish that the Plaintiff's alleged
unilateral mistaken understanding was born entirely out of his
own negligence. The Plaintiff specifically admitted that he: did
not read the Trust before signing it; voluntarily remained
completely uninvolved in the drafting process leading up to the
execution of the Trust because he did not have time to be
involved; based his understanding that he could continue to
benefit from and control the Trust assets entirely on
statements made by a non-lawyer, business partner in a
conversation about how said business partner's own trust
functions; did not ask Mr. Burwell whether the actual effect of
the Trust conformed to his own understanding thereof; did not
ask Mr. Burwell to explain the effect of the Trust to him; and
did not ask for more time to read the Trust because he felt that
he did not need it because he simply assumed that the Trust
allowed him to benefit from and control the assets. In
particular, ... the Plaintiff's grossly negligent failure to read
the Trust before signing it means, as a matter of law, that his
request for rescission of the Trust and transfers thereto due
[to] his unilateral mistake is dead on arrival."
Accordingly, the defendants concluded that, because the plaintiff's
mistake "was unilateral, unknown to the other party to the Trust, not the
result of fraud or misrepresentation, and not unmixed with negligence,"
he cannot maintain his claims for rescission of the Trust agreement and
transfers of property to the Trust under count I and count II of the
complaint.
40
1190682
Finally, the defendants argued that the Trust agreement is not
subject to rescission or reformation because the provisions of the Trust
agreement carry out the intent and purpose for which the Trust was
created. Specifically, they contend that the plaintiff and Burwell both
consistently stated that the purpose or goal of the Trust was to reduce the
taxes on the plaintiff's estate and to allow the plaintiff to give assets to
Lynda and their children. The defendants asserted that the plaintiff had
stated that he had not intended to control the Trust and that he had not
intended to benefit from the Trust. Finally, they asserted:
"The Trust is not subject to rescission or reformation
because the undisputed facts establish that the Trust
provisions manifest the Plaintiff's intent and purpose of the
Trust. Because the Trust manifests the Plaintiff's intent, the
Plaintiff's transfers to the Trust did not result in the Trust
receiving an improper benefit and that any payment that the
Plaintiff made on behalf of the Trust was not improper.
Because the undisputed facts establish as much, the
Defendants respectfully request that this Court enter an Order
granting their Motion for Summary Judgment with respect to
all Counts set forth in the Complaint."
In his response, the plaintiff argued that his claim for rescission was
viable based on his unilateral mistake or misunderstanding of the Trust's
effects. He also argued that he could rescind or modify the Trust
41
1190682
agreement because he did not receive any consideration for the
conveyances made pursuant thereto and that, further, he was not required
to show that a mutual mistake occurred during the drafting and execution
of the Trust agreement because he did not receive any such consideration.
Finally, the plaintiff argued that there was a genuine issue of
material fact as to whether he understood the full effects of the Trust
agreement because he allegedly "did not understand or appreciate the
intricacies" of the Trust agreement before he executed it and because he
relied on Burwell "to educate him on the trust provisions and to create a
fair and equitable estate plan for himself and Lynda." Specifically, he
contended that, although the defendants argued that the Trust carries out
his intent, he did not understand that creating the Trust for tax purposes
"would strip him of access to his personal assets, including his principal
residence" and that "he mistakenly believed that that tax benefits of
creating the [Trust] would not deprive him of his right to enjoyment of the
assets during his lifetime." The plaintiff further argued:
"The Jeremy Hon Trust provides that Dr. Hon does not own or
have a right to enjoyment of the assets and that upon Lynda's
death, Kevin becomes trustee and that the assets then flow
42
1190682
into three separate ... trusts for the children. ... Dr. Hon's
testimony indisputably establishes that this was not his intent
and that he did not want to lose access to his personal assets
during his lifetime."
In their reply, the defendants addressed the plaintiff's contentions
as follows:
"In their Motion, the Defendants highlighted the
Alabama Supreme Court's ruling that a unilateral mistake is
not grounds for rescission and reformation under a theory of
unilateral mistake unless such unilateral mistake was the
result of fraudulent or inequitable conduct on part of the other
party to the instrument and was known to the other party to
the instrument. Doc. 125 at p. 20 (citing Gray v. Bain, 164 So.
3d 553, 564 (Ala. 2014)). Further, the Defendants established
in their Motion that a party's claim for rescission or
reformation under a theory of unilateral mistake is
extinguished if such party's unilateral mistake was mixed with
his own negligence. ... Finally, the Defendants cited the
long-standing and well-settled rule that a person who signs an
instrument without reading it, when he can read, has
committed gross negligence and cannot, in the absence of a
showing of fraud, deceit, or misrepresentation on the part of
the other party to the instrument, avoid the effect of his
signature by claiming that he was not informed of the effect
thereof. Doc. 125 at p. 16 (citing Brown v. St. Vincent's Hosp.,
899 So. 2d 227, 242 (Ala. 2004); Mitchell Nissan, Inc, v. Foster,
775 So. 2d 138, 140 (Ala. 2000)).
"The Plaintiff's Response does not contain any legal
authority disputing the application of the aforementioned legal
principals to the Plaintiff's claims for rescission and
reformation. In fact, the Plaintiff explicitly concedes in Section
43
1190682
II of his Response that an instrument may not be reformed
under a theory of a unilateral mistake unless there is fraud or
inequitable conduct on the part of the other party to the
instrument. Doc. 131 at p. 7. Further, while the Plaintiff's
Response cites to legal authorities supporting his ability to
bring a claim for rescission of an instrument on the basis of a
unilateral mistake, it fails to cite to any authority concerning
how to prove such a claim.
"Although the Plaintiff argues in Section II of his
Response that the Trust Agreement may be rescinded under
Alabama law upon a showing that the Trust Agreement was
created with gifts of property, the legal support offered in
support thereof concerns only situations involving reformation
of the instruments conveying the property, id. at pp. 7-8 (citing
McClung v. Green, 80 So. 3d 213 (Ala. 2011), a case explicitly
concerning reformation of a deed; Pullum v. Pullum, 58 So. 3d
752 (Ala. 2010), a case explicitly concerning reformation of a
deed). As the Plaintiff is seeking rescission of the instruments
at issue in this case, not their reformation, these cases are
irrelevant. Notably, the Plaintiff's Response is completely
devoid of any authority as to the Plaintiff's ability to both
bring and prove a claim for rescission of the transfers to the
Trust Agreement under a theory of unilateral mistake. Finally,
while the Plaintiff argues in his Response that all he has to do
to survive summary judgment is show evidence that the Trust
Agreement does not reflect his true intention due to his
misunderstanding as to the effect thereof, he fails to provide
any legal support for such a statement. Id. at p. 8. Accordingly,
while the Plaintiff's Response contains a number of legal
authorities concerning the Plaintiff's ability to bring a claim
for rescission of instruments under a theory of a unilateral
mistake, it fails to contain any legal authority concerning how
to prove such a claim.
44
1190682
"In other words, it is undisputed that the Plaintiff can
only maintain his claims for rescission and reformation of the
Trust Agreement and rescission of the transfers to the Trust
Agreement under a theory of a unilateral mistake if he can
sufficiently show that his mistake was the result of fraudulent
or inequitable conduct of the other party to the instrument
(e.g., Lynda Hon), was known to the other party to the
instrument (e.g., Lynda Hon), and was unmixed with his own
negligence. Gray v. Bain, 164 So. 3d 553, 564 (Ala. 2014). It is
further undisputed that if the Plaintiff signed the Trust
Agreement without reading it, he will be deemed to have
committed gross negligence and cannot, in the absence of a
showing of fraud, deceit, or misrepresentation on the part of
the other party to the instrument (e.g., Lynda Hon), avoid the
effect of his signature by claiming that he was mistaken as to
the effect thereof because he was not informed of such effect.
Brown v. St. Vincent's Hosp., 899 So. 2d 227, 242 (Ala. 2004);
Mitchell Nissan, Inc. v. Fasten, 775 So. 2d 138, 140 (Ala.
2000).
"....
"In light of the aforementioned controlling law, the
Defendants highlighted the fact that (1) the Plaintiff cannot
produce any evidence showing that Lynda Hon (the other
party to the Trust Agreement) committed any fraudulent or
inequitable conduct that resulted in the Plaintiff's alleged
unilateral mistaken understanding or was aware of the
Plaintiff's alleged unilateral mistaken understanding, and (2)
the Plaintiff's alleged mistaken understanding was mixed with
his own negligence. Doc. 125 at pp, 16, 21. Specifically as to
the fact that Plaintiff's unilateral mistake was mixed with his
negligence, the Defendants noted that the Plaintiff admitted
in his deposition that he did not read the Trust Agreement
prior to signing it (defined as 'gross negligence' by the Alabama
45
1190682
Supreme Court in Mitchell 775 So. 2d at 140); based his
mistaken understanding of the Trust Agreement solely on a
conversation with his business partner, who was, and is, not
a lawyer and never saw or read the Trust Agreement; never
asked Mr. Burwell any questions about the Trust Agreement
prior to signing it; and, when asked as to why he took such a
hands-off approach in the process of the establishment of the
Trust Agreement, said he had 'no time to deal with it.' Doc.
125 at pp. 16, 21-22.
"Accordingly, to survive summary judgment, the
Plaintiff's Response must produce 'substantial evidence'
showing that there is a dispute of material fact as to whether
(1) the Plaintiff's alleged mistaken understanding was the
result of Lynda Hon's fraudulent or inequitable conduct, (2)
Lynda Hon knew of the Plaintiff's mistaken understanding,
and (3) the Plaintiff's alleged mistaken understanding was
mixed with his own negligence. Lee v. City of Gadsden, 592 So.
2d 1036, 1038 (Ala. 1992). '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 Assurance Co. of Fla., 547 So. 2d 870, 871 (Ala. 1989)
(emphasis added). The Plaintiff's Response failed to produce
such 'substantial evidence.'
"First, the Plaintiff failed to produce any evidence
showing that Lynda Hon undertook any fraudulent or
inequitable action that resulted in the Plaintiff's alleged
unilateral mistaken understanding or was aware of Plaintiff's
alleged unilateral mistaken understanding. Second, while the
Plaintiff did offer some 'evidence' in rebuttal of the Defendants'
evidence that the Plaintiff's unilateral mistake was mixed with
his own negligence, it is insufficient to allow him to survive
summary judgment.
46
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"The Plaintiff's only evidence offered to rebut the
Defendants' evidence of the Plaintiff's negligence is in response
to the Defendants' highlighting the Plaintiff's admission that
he did not read the Trust Agreement before signing it.
Specifically, the Plaintiff's evidence is a statement in his
supporting affidavit that he 'briefly skimmed the provisions' of
the Trust Agreement before signing it. ... This statement is
simply a further admission that the Plaintiff did not read the
Trust Agreement before signing it.
"If this Court is inclined to treat 'briefly skimming' as the
equivalent to 'reading,' ... the Plaintiff failed to provide
'substantial evidence' showing that his alleged mistaken
understanding was not mixed with his own negligence.
"Instead of producing 'substantial evidence' showing that
his alleged unilateral mistaken understanding was not mixed
with his own negligence, was the result of Lynda Hon’s
fraudulent or inequitable conduct, or was unknown to Lynda
Hon, the Plaintiff relies solely on his own statement in his
supporting
affidavit
that
his
unilateral
mistaken
understanding was due solely to Mr. Burwell's alleged failure
to explain the Trust Agreement to him. ... In fact, the Plaintiff
goes so far to say in his supporting affidavit that he never
actually had any discussion with Mr. Burwell about the Trust.
... But, for two reasons, these statements are insufficient to
allow the Plaintiff to survive summary judgment.
"First, the Plaintiff is precluded as a matter of law from
claiming that his alleged mistaken understanding of the effect
of the Trust Agreement was due [to] him allegedly not being
informed of the actual effect of the Trust Agreement because
he (1) failed to show any evidence that his mistaken
understanding was due to Lynda Hon's fraudulent or
inequitable action, (2) failed to show any evidence that Lynda
47
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Hon was aware of the Plaintiff's alleged mistaken
understanding, and (3) failed to read the Trust Agreement
before signing it. Mitchell Nissan, Inc. v. Foster, 775 So. 2d
138,140 (Ala. 2000).
"Second, this Court cannot actually consider the
Plaintiff's statement that Mr. Burwell failed to inform him of
the effect of the Trust Agreement as sufficient to preclude
summary judgment because the Plaintiff cannot create an
issue of material fact by providing a statement in a supporting
affidavit that contradicts, without explanation, his prior
deposition testimony. Robinson v. Hank Roberts, Inc., 514 So.
2d [958,] 961 (Ala. 1987). The Plaintiff testified during his
deposition that Mr. Burwell did in fact brief him on the Trust
Agreement prior to signing it (consistent with Mr. Burwell's
sworn testimony that he informed the Plaintiff about the Trust
Agreement prior to its execution), but that he simply could not
recall, and that nothing could help him recall, whether or not
Mr. Burwell actually explained the details of the Trust
Agreement to him. ... In fact, the Plaintiff further testified in
his deposition that it was actually not his testimony that Mr.
Burwell never told him that the assets held under the Trust
Agreement would be beyond his reach .... The Plaintiff also
recalled in his deposition that Mr. Burwell told him prior to
signing the Trust Agreement that the Trust Agreement would
serve to reduce taxes against the Plaintiffs estate and pass
assets to the Plaintiffs children. ... However, the Plaintiff's
unequivocal statements in his affidavit that he never
communicated with Mr. Burwell about the Trust Agreement
and that Mr. Burwell never explained the effect of the Trust
Agreement to him directly contradict his deposition testimony,
without explanation. Thus, this Court cannot consider
Plaintiff's statements in his affidavit that Mr. Burwell failed
to inform him as to the effect of the Trust Agreement.
48
1190682
"Accordingly, because the Plaintiff failed to provide
'substantial evidence' showing that (1) his alleged mistaken
understanding was due to Lynda Hon's fraudulent or
inequitable action, (2) Lynda Hon knew of his mistaken
understanding, and (3) his alleged mistaken understanding
was not mixed with his own negligence, he cannot prove his
claims for rescission and reformation of the Trust Agreement
and rescission of the transfers to the Trust Agreement under
a theory of unilateral mistake. As the Plaintiff is unable to
prove such claims, they cannot survive summary judgment.
Therefore, the Defendants respectfully request that this Court
enter an Order granting the Defendants' Motion for Summary
judgment."
The defendants thoroughly set forth evidence and authority that
established a prima facie case that the plaintiff was not entitled to relief
based on his alleged unilateral mistaken understanding of the provisions
of the Trust agreement. In particular, they presented testimony from
Burwell that he did advise the plaintiff that he would not have control
over and access to any assets that were transferred to the Trust. They
also presented evidence indicating that the plaintiff had admitted that he
could not say that Burwell had not advised him about the Trust
agreement and its provisions; that the plaintiff had admitted that he had
not asked Burwell any questions about the Trust agreement before he
signed it; that the plaintiff had admitted that he had not read the Trust
49
1190682
agreement before he signed it; and that the plaintiff had admitted that,
instead, he had relied on statements his business partner had made about
his own trust. Finally, the defendants presented evidence indicating that
the plaintiff's primary reason for filing the complaint was that he was
angry because, he believed, his children had been disrespectful, had
betrayed him, and had shown a lack of trust with regard to him.
The burden then shifted to the plaintiff to present substantial
evidence to overcome the defendants' summary-judgment motion. Ex
parte Harold L. Martin Distrib. Co., 769 So. 2d at 314. The plaintiff
presented evidence indicating his understanding of what he thought the
Trust agreement provided. However, he did not present any evidence,
much less substantial evidence, to establish that Lynda had engaged in
any fraudulent or inequitable conduct that resulted in his alleged
misunderstanding, and he did not present any evidence indicating that
Lynda had been aware of his alleged misunderstanding. Also, the plaintiff
did not present substantial evidence to establish that the mistake was not
mixed with his own negligence. Rather, by his own testimony, the
plaintiff admitted that he did not read the Trust agreement before he
50
1190682
signed it; that he might have skimmed the Trust agreement; that he did
not ask Burwell any questions about the provisions of the Trust; and that
he instead relied on comments made by his business partner about the
effects of his own separate trust. Finally, the plaintiff does not cite any
authority to support his contention that he had to show only that the
Trust agreement does not reflect his true intention due to his
misunderstanding of the effects of the Trust agreement. The defendants'
arguments and authority clearly refuted the plaintiff's assertions and
establish that any misunderstanding by the plaintiff was the result of his
own negligence. Therefore, the trial court correctly concluded that the
defendants' arguments established that the plaintiff was not entitled to
relief based on his claims as to a unilateral mistake regarding the
provisions of the Trust agreement.
Conclusion
For the above-stated reasons, the trial court properly granted a
summary judgment in favor of the defendants. Accordingly, we affirm the
trial court's judgment.
AFFIRMED.
51
1190682
Bolin, Sellers, and Stewart, JJ., concur.
Parker, C.J., concurs in the result.
52 | May 21, 2021 |
8cfcaeb2-687a-4315-99e1-99bbdee6837f | Ex parte Shannon Dean Barlow. | N/A | 1200474 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200474
Ex parte Shannon Dean Barlow. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Shannon Dean Barlow v.
State of Alabama) (Escambia Circuit Court: CC-93-428.62; Criminal Appeals
:
CR-19-0998).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Parker, C.J. -
Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
80ee1707-65ba-4ee9-a4ca-9e0b713cf1a9 | Ex parte John Thomas Wahoski. | N/A | 1200233 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200233
Ex parte John Thomas Wahoski. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: John Thomas Wahoski v.
State of Alabama) (Morgan Circuit Court: CC-18-909; Criminal Appeals :
CR-19-0206).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
9e59a8ed-9bc4-4c54-a958-60f5591b34e2 | Ex parte William Crews. | N/A | 1200486 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200486
Ex parte William Crews. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: William Crews v. State of
Alabama) (Morgan Circuit Court: CC-95-441.64; Criminal Appeals :
CR-19-0694).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
86b66331-2adf-4f2c-a36e-5fd36a0f6102 | Ex parte Eric Leonard Little. | N/A | 1200310 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200310
Ex parte Eric Leonard Little. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Eric Leonard Little v.
Alabama Board of Pardons and Paroles) (Montgomery Circuit Court:
CV-20-201; Criminal Appeals :
CR-19-0940).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
3b1b403b-f051-4b87-82a2-4746614ea366 | Ex parte Lawrence Hawkins. | N/A | 1200480 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200480
Ex parte Lawrence Hawkins. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Lawrence Hawkins v. State
of Alabama) (Marengo Circuit Court: CC-16-131; Criminal Appeals :
CR-19-0979).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
ad32fbd4-cf1d-492c-8b10-7f29982a7f15 | Barnett v. Jones | N/A | 1190470 | Alabama | Alabama Supreme Court | REL: May 14, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190470
____________________
Vernon Barnett, in his official capacity as commissioner of the
Alabama Department of Revenue, et al.
v.
Dr. Danna Jones, individually and in her official capacity as
superintendent of Hartselle City Schools, et al.
Appeal from Montgomery Circuit Court
(CV-19-477)
MITCHELL, Justice.
1190470
This case involves the constitutionality of a 2019 local law that
appropriates a large portion of Morgan County's proceeds from the
Simplified Sellers Use Tax ("SSUT") to the county and city boards of
education in Morgan County. The Morgan County Commissioners have
appealed a judgment upholding the local law and contend that the local
law violates Ala. Const. 1901 (Off. Recomp)., art. IV, § 105, because, they
say, it creates a variance with -- and changes the result under --
preexisting general laws. Because the subject of the local law is not
provided for by general law, we hold that it does not violate § 105 and
therefore affirm.
Facts and Procedural History
The act at the heart of this case is Act No. 2019-272, Ala. Acts 2019
("the Local Act"), a local law that sets out how the SSUT proceeds
distributed to Morgan County are to be appropriated. The Legislature
adopted the SSUT in 2015 through the passage of the Simplified Seller
Use Tax Remittance Act ("the SSUT Act"),§ 40-23-191 et seq., Ala. Code
1975. The SSUT Act created mechanisms by which the State can collect
a use tax from online sales of goods and services. See id. It also dictates
2
1190470
how the proceeds from the tax are distributed. See § 40-23-197(b), Ala.
Code 1975. Under this statutory framework, 20% of the SSUT proceeds
are currently distributed to "each county in the state ... on a basis of the
ratio of the population of each county to the total population of all counties
in the state as determined in the most recent federal census prior to the
distribution." § 40-23-197(b). See also § 40-23-197(a).
The Legislature has amended the SSUT Act several times. Relevant
to the arguments in this case, a 2018 amendment added what is currently
§ 40-23-197(b). See Act No. 2018-539, § 1, Ala. Acts 2018. That provision
of the SSUT Act now reads, in pertinent part:
"[T]he net proceeds after the distribution provided in
subdivision (1) of subsection (a) shall be distributed ... 40
percent to each county in the state, and deposited into the
general fund of the respective county commission, on a basis
of the ratio of the population of each county to the total
population of all counties in the state as determined in the
most recent federal census prior to the distribution."
§ 40-23-197(b) (emphasis added).
In 2019, the Legislature passed the Local Act, which applies only to
Morgan County and serves as the basis of the parties' dispute. The Local
Act dictates how the SSUT proceeds distributed to Morgan County must
3
1190470
be appropriated following their deposit into the county's general fund.
After the proceeds are deposited, Morgan County retains 5% of the
proceeds, but the remainder is to be transferred elsewhere. Eighty-five
percent of the remaining proceeds are split between the county and city
boards of education; another 13.5% goes exclusively to the Morgan County
Board of Education; and the final 1.5% goes in equal shares to certified
volunteer fire departments in Morgan County. Act No. 2019-272, § 2.
The Morgan County Commission refused to comply with the
appropriation requirements of the Local Act. As a result, Dr. Danna
Jones, individually and in her official capacity as the superintendent of
Hartselle City Schools; Venita Jones, individually and in her official
capacity as a member of the Hartselle Board of Education; Dana Gladden,
Rodney Randell, and Rona Blevins, individually and in their official
capacities as presidents, respectively, of the Hartselle City Education
Association, the Decatur Education Association, and the Morgan County
Education Association; and the Hartselle City, Decatur, and Morgan
County Education Associations brought this suit in the Montgomery
Circuit Court in October 2019. They sued the members of the Morgan
4
1190470
County Commission -- Ray Long, Jeff Clark, Randy Vest, Don Stisher, and
Greg Abercrombie ("the Commissioners") -- in their individual and official
capacities and Alabama Commissioner of Revenue Vernon Barnett,
seeking a judgment declaring the Local Act constitutional as well as
injunctive relief. The defendants answered the complaint and asserted
that the Local Act violates § 105. The crux of their argument is that the
Local Act creates a variance from preexisting general laws of statewide
application and changes the results dictated by the SSUT Act and the
Budget Control Act, § 11-8-1 et seq., Ala. Code 1975. This singling out,
they say, is prohibited by § 105.
Less than a month after the action began, the Decatur City Board
of Education and the Morgan County Board of Education moved to
intervene as plaintiffs. Those intervening plaintiffs named the same
defendants in their complaint and, in substance, sought the same relief as
the plaintiffs. Their motion to intervene was granted.
After briefing, a hearing, and the filing of proposed orders from all
parties, the trial court entered its final judgment in favor of the plaintiffs
and the intervening plaintiffs. It held that the Local Act did not violate
5
1190470
§ 105 and ordered the Commissioners to pay all SSUT proceeds
distributed to Morgan County after the date of the entry of the order as
provided in the Local Act. The Commissioners appealed.1
Standard of Review
There are no disputed facts in this case. Thus, our review of the trial
court's judgment on the constitutionality of state legislation is de novo.
Richards v. Izzi, 819 So.2d 25, 29 n.3 (Ala. 2001). It is also established
that this Court will apply a "presumption ... in favor of [the] validity [of
state laws]." Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18
So. 2d 810, 815 (1944); Clay Cnty. Comm'n v. Clay Cnty. Animal Shelter,
Inc., 283 So. 3d 1218, 1229 (Ala. 2019). That is because "it is the
recognized duty of the court to sustain the act unless it is clear beyond
reasonable doubt that it is violative of the fundamental law." Alabama
State Fed'n of Labor, 246 Ala. at 9, 18 So. 2d at 815.
1Although Commissioner Barnett is listed as an appellant on the
notices of appeal, the briefs filed in this Court on behalf of the appellants
indicate that they were filed only on behalf of the Commissioners.
6
1190470
Analysis
The Commissioners challenge the Local Act under § 105 of our State
Constitution, which states:
"No special, private, or local law, except a law fixing the
time of holding courts, shall be enacted in any case which is
provided for by a general law, or when the relief sought can be
given by any court of this state; and the courts, and not the
legislature, shall judge as to whether the matter of said law is
provided for by a general law, and as to whether the relief
sought can be given by any court; nor shall the legislature
indirectly enact any such special, private, or local law by the
partial repeal of a general law."
(Emphasis added.) In essence, the Commissioners argue that the Local
Act violates § 105 because the "case" or "matter" the Local Act covers is
already provided for by two general laws: the SSUT Act and the Budget
Control Act. Further, the Commissioners argue that because Morgan
County's share of the SSUT proceeds is subsequently appropriated by the
Local Act after deposit into the county's general fund, but none of the
other counties' shares of the SSUT proceeds are similarly appropriated,
the Local Act creates an impermissible variance and changes the result
otherwise generated by those general laws. We reject those arguments
and hold that because the SSUT Act, the Budget Control Act, and the
7
1190470
Local Act all provide for distinct cases or matters, the Local Act does not
violate § 105.
As a result of the confusion that has arisen around this Court's § 105
jurisprudence, we first explain the proper framework for analyzing that
constitutional provision. We then discuss why there is no § 105 violation
here.
A. The § 105 Framework
From the time of the adoption of our 1901 Constitution, the text of
§ 105 and the caselaw interpreting it have been at war. For the first
several decades, this Court applied a "substantial difference" test to assess
the constitutionality of local laws. See, e.g., State ex rel. Brandon v.
Prince, 199 Ala. 444, 74 So. 939 (1917). Instead of assessing what
"case[s]" or "matter[s]" the Legislature had already "provided for" by
general law, that test charged courts "with the duty to determine whether
there is a substantial difference between the general and the local law."
Standard Oil Co. of Kentucky v. Limestone Cnty., 220 Ala. 231, 235, 124
So. 523, 526 (1929). The more substantial the difference between the local
law and the general law, the more likely it was that the local law would
8
1190470
stand. Id. Despite the delegation of authority to the judiciary in the text
of § 105, courts applying the "substantial difference" test refused to
"invade the legislative domain to determine whether a county should have
a local law substantially different and in addition to the state law." Id.
The "substantial difference" test focused on the content of the local law
and was highly deferential to the Legislature's practice of passing local
acts.
That mode of analysis was expressly abandoned in Peddycoart v.
City of Birmingham, 354 So. 2d 808 (Ala. 1978). In Peddycoart, this Court
held that "[b]eing a limitation upon legislative authority, § 105 clearly
means just the opposite of what the Court in [Brandon] held that it
meant." Id. at 813. In explaining the proper framework for analyzing
whether a local law violated § 105, this Court held:
"We do not look upon the presence of a general law upon a
given subject as a bare segment, but to the contrary, its
presence is primary, and means that a local law cannot be
passed upon that subject. By constitutional definition a
general law is one which applies to the whole state and to each
county in the state with the same force as though it had been
a valid local law from inception. ... [T]he constitutional framers
have prohibited the enactment of a local act when the subject
is already subsumed by the general statute."
9
1190470
Id. at 813 (emphasis altered).
After Peddycoart, a "substantial difference" between a challenged
local law and general law can no longer save a local law if its subject is
"already subsumed" by the contents of a general law. See id. Thus, the
key to assessing a local law under § 105 is determining the subject covered
by the general law or -- in the phrasing of the text of § 105 -- determining
the "case" or "matter" "provided for" by the general law.
This Court has held that the phrase "provided for" in § 105 is a
"limitation pertaining to matters of the same import dealt with in the
general law." Peddycoart, 354 So. 2d at 811 (emphasis added).
Accordingly, if the "case" or "matter" of the local law is "provided for" by
a general law -- that is, it covers "matters of the same import" -- § 105 has
been violated. But if not -- that is, if the laws cover things not of the same
import -- the local law does not offend § 105 because "[t]he Alabama
Constitution does not prohibit the passage of local acts to address the
needs of discrete political subdivisions." City of Homewood v. Bharat
LLC, 931 So. 2d 697, 700 (Ala. 2005). Rather, "[i]t is only when those local
needs have already been responded to by general legislation that § 105 of
10
1190470
our state Constitution prohibits special treatment by local law."
Peddycoart, 354 So. 2d at 815.
The rule laid down in Peddycoart has not always been clearly
followed. This is partly because that decision applied only prospectively
to laws passed after Peddycoart, see id. at 814, and there are therefore
several cases decided afterward that properly applied the pre-Peddycoart
mode of § 105 analysis. See, e.g., Yancey & Yancey Constr. Co. v. DeKalb
Cnty. Comm'n, 361 So. 2d 4, 5 (Ala. 1978) ("That [Peddycoart] holding ...
was expressly limited to legislation enacted after the date of that
opinion."). Nevertheless, this Court has not always been careful with its
language, occasionally slipping into the terminology of overruled cases in
post-Peddycoart decisions -- even when the Court ultimately reached the
result dictated by Peddycoart. See, e.g., Town of Vance v. City. of
Tuscaloosa, 661 So. 2d 739, 744 (Ala. 1995) (noting that "[a] legislative
annexation by local act is substantially different from a municipal
annexation done under general laws," despite the fact that the
"substantial difference" test was no longer good law (emphasis added)).
11
1190470
More confusingly, this Court has sometimes applied a "variance" test
to determine what has been "provided for" by general law. See, e.g.,
Walker Cnty. v. Allen, 775 So. 2d 808, 812 (Ala. 2000); Bharat, 931 So. 2d
at 702; Jefferson Cnty. v. Taxpayers & Citizens of Jefferson Cnty., 232 So.
3d 845, 864 (Ala. 2017) (plurality opinion). Like the old "substantial
difference" test, the "variance" test is an incomplete mode of analysis.
While it is certainly true that a local law that " 'create[s] a variance from
the provisions of a general law,' " Bharat, 931 So. 2d at 701 (citation and
emphasis omitted), sufficiently establishes a § 105 violation because it
provides for the same case or matter, a variance is not necessary to
establish a § 105 violation under its plain terms and the Peddycoart
framework. But ultimately, all of this clouds the text of § 105 and the
central holding of Peddycoart: that the focus must be on the general law,
and local laws cannot be passed on cases or matters already provided for
by a general law.
This Court has not directly defined "case" or "matter" in the context
of § 105. In fact, while Peddycoart interpreted the phrase "provided for,"
it left the meaning of "case" and "matter" open because, at that time, the
12
1190470
Court believed those terms did not need to be interpreted. See 354 So. 2d
at 811 ("The only phrase in the pertinent part of § 105 requiring
construction is 'provided for.' "). But through the decisions of this Court
over time, the level of generality this Court has afforded the words "case"
or "matter" has become clear -- even if the Court has not described its
analysis directly in those terms.
A line of cases dealing with the Legislature's power to annex
territory exemplifies how this Court has viewed the breadth of what
constitutes subject matter in the § 105 context. In Birmingham v.
Vestavia Hills, 654 So. 2d 532, 538 (Ala. 1995), this Court upheld a local
law challenged under § 105 relating to the legislative annexation of
territory that was not contiguous to the municipality into which it was
being annexed. Even though there were preexisting general laws on the
topic of annexation, those general laws addressed annexation done by
municipal governments, voters, or owners to annex contiguous territories
into an existing municipality. Id. at 538-39. The annexation general laws
did not address the Legislature's inherent authority to annex territory,
which is limited only by restrictions in the Constitution. Id. at 538.
13
1190470
Similarly, in Town of Vance v. City of Tuscaloosa, this Court upheld
another local law that annexed land to a municipality -- this time
involving contiguous tracts of land. 661 So. 2d at 743-44. But the fact
that the land was contiguous made no difference in the result under § 105.
Id. The Court once again upheld the local law because a general law
about municipal, voter, or property-owner annexation did not preempt the
Legislature from exercising its own power to annex. In both instances, the
Court refused to treat the matter as annexation generally. Rather, it
treated the matter provided for as annexation in certain contexts. Put in
the terms of Peddycoart, annexation done by municipalities, voters, or
property owners was not "of the same import" as annexation done by the
Legislature. 354 So. 2d at 811.
While it is crucial that we enforce the constitutional prohibition on
local laws covering cases or matters already subsumed by a general law,
Vestavia Hills and Town of Vance demonstrate the importance of not
extending the boundaries of subject matter too broadly. Determining
what is "of the same import" or how broadly to consider the "case" or
"matter" addressed by a general law is necessarily an exercise in judicial
14
1190470
prudence that will, in many respects, depend on the facts of the case --
chiefly what the local law and general law say. But § 105 and Peddycoart
do not speak of substantial differences, variances, or result comparisons --
they speak in terms of cases and matters provided for. Thus, that is what
this Court must assess.
B. Application of the § 105 Framework to the Local Act
In this case, the Local Act does not cover the same "case" or "matter"
"provided for" by either the SSUT Act or the Budget Control Act. The
SSUT Act creates a tax and then provides directions for the distribution
and initial deposit of the tax proceeds. Each county's portion of the SSUT
proceeds is to be deposited in its general fund. But after the proceeds are
distributed according to the provisions of the SSUT Act, the SSUT Act
ceases to speak -- its aim has been accomplished. By contrast, the Local
Act covers what happens to Morgan County's portion of the SSUT
proceeds after it is deposited in Morgan County's general fund. And
because the Legislature has an underlying plenary power to control
county funds, see Clay Cnty. Animal Shelter, 283 So. 3d at 1218, it may
dictate to Morgan County what to do with the SSUT proceeds after they
15
1190470
have been deposited in the county's general fund through the mechanisms
of the SSUT Act.2 In other words, the general law (the SSUT Act) covers
how the proceeds are collected and get to the Commissioners, and the
Local Act covers how the proceeds are to be spent once received.3 The
"case[s]" or "matter[s]" "provided for" are distinct: the general law
provides for taxation and distribution and the local law provides for
subsequent appropriation.
2" 'So, after all is said and done, county funds are in reality state
funds, subject to state control, and no part of which can be expended by
the county without express or implied authorization by the state.' " Clay
Cnty. Animal Shelter, 283 So. 3d at 1233 (quoting Montgomery v. State,
228 Ala. 296, 301, 153 So. 394, 398 (1934)) (emphasis added in Clay Cnty.
Animal Shelter).
3It is also notable that the SSUT Act uses the distinct terms
"appropriated" and "distributed" to describe different actions. § 40-23-197.
The act of payment of the proceeds from the tax in the first instance to the
Alabama Department of Revenue is described as appropriation. § 40-23-
197(a). On the other hand, the transfer of the proceeds to counties after
they have been acquired by the Department of Revenue is described as
distribution. § 40-23-197(b). " '[W]hen the legislature uses certain
language in one part of the statute and different language in another, the
court assumes different meanings were intended.' " Trott v. Brinks, Inc.,
972 So. 2d 81, 85 (Ala. 2007) (quoting 2A Norman Singer, Sutherland on
Statutes and Statutory Construction § 46:06 at 194 (6th ed. 2000)).
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The Commissioners ask us to treat the "case" or "matter" "provided
for" by the SSUT Act like the challengers in Vestavia Hills and Town of
Vance asked this Court to treat annexation. They argue that any local
law instructing a county commission what to do with SSUT proceeds after
they have already been deposited in the county's general fund must fail
because its subject is "subsumed by" the SSUT Act itself. But just as the
Legislature did not forfeit its ability to annex by passing a general law
establishing ways other entities may annex, the Legislature did not forfeit
its power of the purse for county funds by passing the SSUT Act and
describing where the proceeds must initially be deposited. The creation
of a tax and the allocation of its proceeds in the first instance are not "of
the same import" as legislative appropriation of the State's own funds at
a later time after the requirements of the general law have been
completely satisfied.
The Budget Control Act does not come to the Commissioners' rescue
either. The Commissioners emphasize that the SSUT Act was amended
in 2018 to add the current version of § 40-23-197(b), which includes the
phrase "and deposited into the general fund of the respective county
17
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commission." This change, they argue, has consequence and "is a clear
expression of legislative intent, in general law, about how county
commissions can use their SSUT funds." Commissioners' brief at 38.
According to them, the SSUT Act's requirement that the proceeds be
deposited into the county's general fund triggers the protections of the
Budget Control Act, which they argue requires county commissions "to
expend ... funds for described public purposes according to allocations
entrusted to their discretion." Commissioners' brief at 28 (emphasis
added). But such a grant of discretion is nowhere to be found in the
Budget Control Act. If anything, the Budget Control Act manifests the
Legislature's authority to direct county commissions as to how funds
allocated to them by the Legislature must be spent; rather than fiscally
liberating county commissions, it actually hamstrings their ability to
spend State funds as they might like.
The Budget Control Act requires that counties have a balanced
budget and states the items that counties must fund at a minimum. § 11-
8-3(c), Ala. Code 1975 ("The budget adopted, at a minimum, shall include
...."). Nowhere does the Budget Control Act grant county commissions the
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discretion over remaining funds after those required items are funded.4
Nor does it exhaustively cover the subjects that a county must fund or
prevent the Legislature from requiring counties to fund additional items --
like public education. In fact, the section cited by the Commissioners -- §
11-8-3 -- does not even mention counties' general funds. While the "case"
or "matter" addressed by the Budget Control Act may subsume the subject
of county budgeting procedures, it does not cover the subject of the
Legislature's ability to appropriate funds sent to counties -- which is what
the Local Act does. To say that the Legislature relinquished its ability to
appropriate State funds in a subsection buried in the Budget Control Act
would be the quintessential elephant hidden in a mousehole. See
Whitman v. American Trucking Ass'ns, 531 U.S. 457, 468 (2001) (noting
that a legislature "does not alter the fundamental details of a regulatory
4The inference to be drawn from the Legislature's inclusion of the
phrase "and deposited into the general fund of the respective county
commission" actually supports the opposite conclusion than the one
asserted by the Commissioners. By requiring that SSUT proceeds go into
a county's general fund, as opposed to a county fund created for a specific
purpose, the Legislature placed those proceeds in the location where a
subsequent act of appropriation would make the most sense.
19
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scheme in vague terms or ancillary provisions -- it does not, one might say,
hide elephants in mouseholes").
Finally, to the extent that the "variance" test is a helpful § 105 mode
of analysis, the Local Act does not -- contrary to the Commissioners'
assertions -- " 'create a variance from the provisions of a general law.' "
Bharat, 931 So. 2d at 701 (citation and emphasis omitted). While this test
"prohibits local laws that create variances from general laws," Taxpayers
& Citizens of Jefferson Cnty., 232 So. 3d at 864, the measuring stick for
the variance is the general law, not the state of affairs in other counties.
See Bharat, 931 So. 2d at 702; Opinion of the Justices No. 342, 630 So. 2d
444, 446 (Ala. 1994). Here, the Local Act does not create a variance with
either the SSUT Act or the Budget Control Act. In accordance with the
SSUT Act, Morgan County's share of the proceeds is still deposited in its
general fund. And the Commissioners' obligations and abilities under the
Local Act are not at variance with their obligations and abilities under the
Budget Control Act, either. As has been discussed, the Budget Control
Act, specifically § 11-8-3, requires counties to have a balanced budget, to
follow certain budgetary procedures, and to fund "at a minimum" a list of
20
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enumerated services. There is no factual contention here that the
Commissioners cannot, because of the Local Act, do those things. They
argue that the Local Act strips them of discretion over the SSUT proceeds
-- but the Budget Control Act never conferred that discretion. The
disparity of discretion over SSUT proceeds between Morgan County and
all other counties in the state, though unfortunate for the Commissioners,
is not unconstitutional even under a variance standard.
Conclusion
The SSUT Act created a new tax and distributes the proceeds of that
tax to entities across the state. It says where those proceeds must be
deposited, but it says nothing about how those proceeds must be spent
once there. The Budget Control Act requires each county to have a
balanced budget and to cover certain services the State has deemed
important. The Local Act touches on none of these things. Instead, it tells
Morgan County that it must spend certain moneys already deposited in
its general fund on specific expenditures. How to spend the SSUT
proceeds was a case or matter left for another day -- and the Legislature
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opted to answer that open-ended question in Morgan County with the
Local Act.
The power -- or lack thereof -- of localities in this state to control
their own political destinies has long been the subject of heated debate.
But resolution of that debate lies outside the judicial power; our job is only
to assess the constitutionality of the Local Act. And because the Local Act
does not intrude on a "case" or "matter" "provided for" by either the SSUT
Act or the Budget Control Act, we affirm the judgment of the trial court.
AFFIRMED.
Wise and Stewart, JJ., concur.
Parker, C.J., and Mitchell, J., concur specially.
Mendheim, J., concurs in part and concurs in the result.
Shaw, J., concurs in the result.
Bolin, Bryan, and Sellers, JJ., dissent.
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PARKER, Chief Justice (concurring specially).
I write only to clarify what I understand the main opinion to mean
by its use of the word "appropriation" to describe the act of directing
money under Act 2019-272, Ala. Acts 2019, after the money has been
deposited in Morgan County's general fund. I read the main opinion's use
of "appropriation" as simply a generic word for direction of tax revenue to
particular recipients, synonymous with "allocation." In my view, the
opinion's use of the word should not be read as having any bearing on the
meaning of "appropriation" in other contexts relating to the
constitutionality of allocations of tax revenue, such as challenges under
Article IV, §§ 45 and 71 (single-subject rule) and § 73 (voting requirement
for charitable and educational appropriations), Ala. Const. 1901 (Off.
Recomp.).
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MITCHELL, Justice (concurring specially).
As the author of the main opinion, I fully concur with it. I write
separately to state my view that our courts should interpret the Alabama
Constitution of 1901 in accordance with its original public meaning and
to invite parties and amici curiae in future cases to provide scholarship
and arguments that help us do that.
It is critical to interpret the Alabama Constitution according to its
text. But the key to understanding any text is its context. One vital
source of context is the time period in which a provision was adopted.
This is relevant "[b]ecause '[w]ords change meaning over time, and often
in unpredictable ways.' " Ex parte Tutt Real Estate, LLC, [Ms. 1190963,
Mar. 26, 2021] ___ So. 3d ___, ____ (Ala. 2021) (Mitchell, J., concurring
specially) (citation omitted). Thus, to keep courts from improperly
changing the law to fit contemporary policy preferences, it is important to
give words the meaning they had at the time the law was adopted. Id.
This approach upholds the separation of powers and preserves our role as
interpreters of the existing Constitution. Cf. Blankenship v. Kennedy,
[Ms. 1180649, May 29, 2020] ___ So. 3d ___, ___ (Ala. 2020).
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The process of searching for the original meaning of constitutional
provisions can be misunderstood. Some seek to frame the endeavor as an
attempt to discover and give effect to the intent of the drafters. But that's
an impossible task that can lead courts astray. See, e.g., Antonin Scalia,
A Matter of Interpretation 38 (Princeton Univ. Press 1997) ("What I look
for in the Constitution is precisely what I look for in a statute: the original
meaning of the text, not what the original draftsmen intended."). Not only
is it impossible to discern a single, unified intent for a legal document
drafted by a convention of dozens of delegates and ratified by thousands
of people, but the intentions themselves were not what was ratified -- the
text was. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts § 67 at 392 (Thomson/West 2012). Thus, the
focus must be on the objective meaning of the text itself -- because that is
the law that was adopted by the public. And when it comes to an older
provision within a constitution, particular attention should be paid to
what the text was understood by the public to mean at the time it was
adopted. See Smith v. Baptiste, 287 Ga. 23, 32, 694 S.E.2d 83, 90 (2010)
(Nahmias, J., concurring specially). In sum, original public meaning is
25
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"simply shorthand for the meaning the people understood a provision to
have at the time they enacted it." Olevik v. State, 302 Ga. 228, 235, 806
S.E.2d 505, 513 (2017) (emphasis added).
Ascertaining the original public meaning of a constitutional
provision can be arduous, but rarely is it impossible. See Scalia & Garner,
Reading Law § 69 at 399 (dismantling "[t]he false notion that lawyers and
judges ... are unqualified to do the historical research originalism
requires"). Of course, that job is made easier when scholarship is
generated and issues before us are briefed from that perspective. See
Morgan v. Fairfield Cnty., Ohio, 903 F.3d 553, 575 (6th Cir. 2018)
(Thapar, J., concurring in part and dissenting in part).
When seeking to determine the original public meaning of a
constitutional provision, it is necessary to examine relatively
contemporaneous sources and older, pre-enactment sources that shed light
on a provision's historical context. See Scalia & Garner, Reading Law §
69 at 400-02; III Roscoe Pound, Jurisprudence 491 (1959) ("In the case of
constitutional provisions historical interpretation is often necessary.").
Further, research should include the examination of more than one source
26
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to capture a more accurate understanding of what terms would have
meant to the informed public. Cf. Tutt Real Estate, ___ So. 3d at ___
(Mitchell, J., concurring specially) (cautioning against the use of a single,
modern dictionary to determine the meaning of a statutory phrase first
adopted in 1923).
Logically, when briefing an issue concerning a provision from the
Alabama Constitution of 1901, some think to consult the records of the
1901 Constitutional Convention to find evidence of meaning. And while
those records are certainly one source that can reveal the common
understanding of provisions at the time, "they are not the exclusive
documents to which we may refer." Smith, 287 Ga. at 32, 694 S.E.2d at
90 (Nahmias, J., concurring specially). Nor should they be. Much like
legislative history can be cherry-picked to find remarks favorable to a
particular interpretation of a statute, records of constitutional conventions
can be similarly abused. Cf. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993)
(Scalia, J., concurring in the judgment) (likening the use of legislative
history to looking over a crowd to find one's friends). So it is also
important to consider "contemporaneous dictionaries, legal treatises, and
27
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cases, as well as histories of the period," to get a full scope of the relevant
terms' public meaning. See Smith, 287 Ga. at 32, 694 S.E.2d at 90
(Nahmias, J., concurring specially).
This approach to constitutional interpretation is not novel. Perhaps
the best-known examples of originalism come from the United States
Supreme Court. Indeed, many of that Court's recent landmark decisions
are rooted in original-public-meaning analysis of provisions in the United
States Constitution. See, e.g., Ramos v. Louisiana, 590 U.S. ___, ____, 140
S. Ct. 1390, 1396 (2020) (holding that the "original public meaning" of the
Sixth Amendment, as incorporated by the Fourteenth Amendment,
requires a unanimous jury verdict to convict a defendant of a serious
offense); District of Columbia v. Heller, 554 U.S. 570, 625, 635 (2008)
(analyzing the "the original understanding of the Second Amendment" to
hold that it protects the right to possess and lawfully use a firearm for
self-defense within the home); Crawford v. Washington, 541 U.S. 36, 68
(2004) (holding that, absent a prior opportunity for cross-examination by
the defendant, the use of testimonial out-of-court statements from
28
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unavailable witnesses is barred based on the original understanding and
history of the Sixth Amendment).5
Less well known, but equally significant, is how several state
supreme courts interpret their own constitutions based on original public
meaning. See, e.g., Elliot v. State, 305 Ga. 179, 181, 824 S.E.2d 265, 268
(2019) ("We have often explained that we interpret the Georgia
Constitution according to its original public meaning."); State v. Antonio
Lujan, 459 P.3d 992, 999 (Utah 2020) ("We have repeatedly reinforced the
notion that the Utah Constitution is to be interpreted in accordance with
the original public meaning of its terms at the time of its ratification.");
Rafaeli, LLC v. Oakland Cnty., 505 Mich. 429, 456, 952 N.W.2d 434, 450-
51 (2020) ("Our 'primary objective' in interpreting a [state] constitutional
provision ... is 'to determine the text's original meaning to the ratifiers,
5Several of the United States Courts of Appeals apply the same
methodology. See, e.g., United States v. Beaudion, 979 F.3d 1092, 1094
(5th Cir. 2020) ("We therefore begin with the original public meaning of
the [Fourth] Amendment."); United States v. Phillips, 834 F.3d 1176, 1181
(11th Cir. 2016) ("Nothing in the original public meaning of 'probable
cause' or 'Warrants' excludes civil offenses. At the Founding, 'probable
cause' meant 'made under circumstances which warrant suspicion.' "
(citation omitted)).
29
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the people, at the time of ratification.' " (citation omitted)). And while
other state supreme courts do not consistently take this approach,
Justices on those courts have used original-public-meaning methodology
when writing in concurrence or dissent. See, e.g., Bartlett v. Evers, 393
Wis. 2d 172, 286, 945 N.W.2d 685, 741 (2020) (Hagedorn, J., concurring)
("Our starting point in constitutional interpretation must be the original
public meaning of the constitution's language because this is the law the
people have enacted."); State v. Riffe, 308 Kan. 103, 113, 418 P.3d 1278,
1286 (2018) (Stegall, J., concurring) ("[W]e have made it clear that
'ascertaining the meaning of constitutional provisions' requires us to go
back to the 'understanding of the people at their adoption.' " (citation
omitted)); Cadena Com. USA Corp. v. Texas Alcoholic Beverage Comm'n,
518 S.W.3d 318, 353 (Tex. 2017) (Willett, J., dissenting) ("When
interpreting language, both statutory and constitutional, we aim to
determine original public meaning, what the words meant to those who
wrote and ratified them.").
In this case, it would have been helpful to have research and
arguments before us about the original public meaning of Ala. Const. 1901
30
0
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(Off. Recomp.), art. IV, § 105. What the words "case" or "matter" were
understood by the Alabama public to mean in 1901 would be of great
interest to me in determining the scope of § 105 -- especially because
today's decision rests on an earlier case, Peddycoart v. City of
Birmingham, 354 So. 2d 808 (Ala. 1978), that did not interpret those
particular terms. See id. at 811 ("The only phrase in the pertinent portion
of § 105 requiring construction is 'provided for.' "). I therefore take this
opportunity to encourage parties and amici curiae in future state-
constitutional cases to provide appropriate research and arguments about
the original public meaning of the provision they are asking us to
interpret.
Parker, C.J., concurs.
31
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MENDHEIM, Justice (concurring in part and concurring in the result).
I concur with Part B. of the "Analysis" section of the main opinion,
and I concur in the result of the main opinion affirming the Montgomery
Circuit Court's judgment.
32
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SHAW, Justice (concurring in the result).
I concur in the result. I write specially to note the following.
The presumption inherent in the argument of the appellants ("the
Commissioners") is that, because the Simplified Seller Use Tax
Remittance Act ("the SSUT Act"), § 40-23-191 et seq., Ala. Code 1975,
directs certain money it generates into the general fund of each county
commission, county commissions are provided the discretion and control
to spend the money as they see fit. If that is true, then it would appear
that Act No. 2019-272, Ala. Acts 2019 ("the Local Act"), which is applicable
to only Morgan County, would conflict with that presumption. But Ala.
Const. 1901 (Off. Recomp.), art. IV, § 105, does not prohibit a local law
from conflicting with a presumption; it instead prohibits a conflict with a
general law.6 The SSUT Act, which is a general law, does not itself
6Section 105 does not actually say that a local law cannot "conflict"
with a general law. It instead says that no local law shall be enacted in
any "case" which is provided for by a general law and that the "matter" of
a local law cannot be "provided for" in a general law. This language is
awkward to the modern ear. For simplicity's sake, I will discuss the
prohibition in § 105 in terms of a "conflict," with the proviso that this
means that a local law cannot cover the same "case" or "matter" "provided
for" by a general law.
33
3
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provide a county commission with control over a county general fund, it
just provides money to the fund. Thus, on its face, the Local Act does not
conflict with the SSUT Act.
The presumption of a county commission's exclusive discretion or
control over a county general fund could be provided by a general law;
thus, the SSUT Act, by providing money to the county general fund,
would, by the operation or effect of that other general law, essentially be
providing a county commission funds over which it would have exclusive
discretion or control. The Local Act would conflict with that general law
because it conflicts with a county commission's power provided by that
general law to spend the money.
In the context of the arguments in the instant case, what is known
as the Budget Control Act, Ala. Code 1975, § 11-8-1 et seq., does not
appear to be a general law that provides a county commission with
exclusive discretion or control over a county general fund. The Budget
Control Act purports to apply to public funds "under" a county
commission's "management and control." Ala. Code 1975, § 11-8-2.
County commissions are required to create a budget, Ala. Code 1975, § 11-
34
4
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8-3(a), and in doing so they must estimate "the anticipated revenue of the
county for all public funds under its supervision and control." Ala. Code
1975, § 11-8-3(a)(1). Thus, if revenues and public funds are not under a
county commission's management, supervision, and control, they are
excluded for budgeting purposes.
In this case, the Local Act, by prescribing how the applicable SSUT
tax funds designated for the Morgan County general fund are to be spent,
removes those funds from the Morgan County Commission's management,
supervision, and control. Those funds are also not an "anticipated
revenue" for purposes of budgeting. The Commissioners cite the Budget
Control Act for the proposition that it gives a county commission
discretion over its county general fund, which would include the proceeds
of the SSUT, but, as the main opinion notes, "such a grant of discretion"
over all money in the county general fund "is nowhere to be found in the
Budget Control Act." ___ So. 3d at ___.
The Commissioners argue that Morgan County is being treated
differently from all other counties, which are able to spend the SSUT tax
funds they receive without limitation by a local law. That is true, and I
35
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sympathize with that position. But that shows only that the Local Act
conflicts with a general principle. Section 105, by its words, is explicit
about the nature of the "conflict" it prohibits. It is limited to prohibiting
a local law from providing for a case or matter that a general law -- not a
general principle -- provides.
36
6
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SELLERS, Justice (dissenting).
I respectfully dissent. As outlined in the main opinion, the
Simplified Seller Use Tax Remittance Act ("the SSUT Act"), § 40-23-191
et seq., Ala. Code 1975, provides for a use tax to be collected by vendors
selling goods or services in Alabama with no physical presence here.
Under the SSUT Act, a percentage of the use-tax revenue collected is
designated for the benefit of the counties in this State. § 40-23-197(a)(2),
Ala. Code 1975.
The SSUT Act specifically requires that the counties' shares of use-
tax revenues are to be deposited in the general funds of the county
commissions. Section 11-8-3, Ala. Code 1975, a part of what is commonly
referred to as the Budget Control Act, § 11-8-1 et seq., Ala. Code 1975,
requires each county commission to adopt an annual budget detailing the
amount of "public funds under [their] supervision and control" and the
estimated amount of funds that will be expended by county offices. § 11-8-
3(a)(1).
It is clear to me that the SSUT Act and the Budget Control Act, both
laws of general application, designate that a percentage of the total use-
37
7
1190470
tax funds collected pursuant to the SSUT Act are to be spent by the
county commissions in this State on county operations generally. But, Act
No. 2019-272, Ala. Acts 2019 ("the Local Act"), requires the Morgan
County Commission to give nearly all of the use-tax revenue it receives
under the SSUT Act to the county and city school systems in Morgan
County, which will spend the money on public education, not on the
general operations of the county.
"Section 105 of the Alabama Constitution prohibits the
passage of local laws purporting to regulate matters that are
'provided for by a general law.' A matter is 'provided for by a
general law' within the meaning of § 105 if the 'subject [of the
local act] is already subsumed by [a] general statute.'
Peddycoart [v. City of Birmingham], 354 So. 2d [808], 813
[(Ala. 1978)]."
City of Homewood v. Bharat, LLC, 931 So. 2d 697, 701-02 (Ala. 2005)
(emphasis omitted). The matter regulated by the Local Act, i.e., how and
by whom county-designated use-tax revenue generated under the SSUT
Act will be spent, is a matter already provided for by the general laws at
issue. Thus, the Local Act violates Ala. Const. 1901 (Off. Recomp.), art.
IV, § 105. It is also noteworthy that the SSUT Act itself provides that a
percentage of use-tax revenue is to be distributed to the Alabama
38
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Education Trust Fund, see § 40-23-197(a)(1), Ala. Code 1975, thus
providing use-tax revenue for the funding of education and lending further
support for the conclusion that the SSUT Act and the Local Act cover the
same matters.
I would hold that the Local Act violates § 105, and I would reverse
the trial court's judgment. Cf. Bharat, 931 So. 2d at 704 (holding that a
local law capping the amount of lodging tax that municipalities in
Jefferson County could levy and a general law allowing cities to levy
lodging taxes with no cap involved the same subject for purposes of § 105
because the local law "change[d] the result that would obtain without its
application"); County Comm'n of Jefferson Cnty. v. Fraternal Ord. of
Police, Lodge No. 64, 558 So. 2d 893, 895 (Ala. 1989) (holding that a
general law establishing county-wide civil-service systems and personnel
boards charged with determining the salaries of classified civil-service
employees and a local law providing an additional subsistence allowance
for law-enforcement officers covered the same subject, namely,
"compensation for certain classes of civil service employees"). Accordingly,
I respectfully dissent.
Bolin, J., concurs.
39
9 | May 14, 2021 |
0e2fb976-a88e-4614-8606-212f7c4585dc | Ex parte Geovanni Xavier Ginett. | N/A | 1200414 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200414
Ex parte Geovanni Xavier Ginett. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Geovanni Xavier Ginett
v. State of Alabama) (Escambia Circuit Court: CC-17-126; Criminal Appeals
:
CR-18-0927).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
a13696dc-f3f1-43c5-93aa-a738a2eee61e | Ex parte N.H. | N/A | 1200510 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200510
Ex parte N.H. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: N.H. v. Coffee County Department of Human
Resources) (Coffee Juvenile Court: JU-15-181.03; Civil Appeals :
2200139).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
0d272340-6046-4efa-9c23-9104f8bf86cf | Dennis Bridges and Robin Bridges v. Lawrence Parker, M.D.; Mobile Gastroenterology, P.C.; and Providence Hospital | N/A | 1191003 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1191003
Dennis Bridges and Robin Bridges v. Lawrence Parker, M.D.; Mobile
Gastroenterology, P.C.; and Providence Hospital (Appeal from Mobile
Circuit Court: CV-18-902371).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | May 14, 2021 |
a891d7b8-ccaf-4cbc-90d8-973c105ce248 | Ex parte Tony Bethune. | N/A | 1200464 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200464
Ex parte Tony Bethune. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Tony Bethune v. State of
Alabama) (Calhoun Circuit Court: CC-82-808.64; Criminal Appeals :
CR-19-0883).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
a27d98de-2d3e-469b-bd0a-c171df17bde2 | Shorter Brothers, Inc.,et al. v. Vectus 3, Inc. | N/A | 1190876, 1190903 | Alabama | Alabama Supreme Court | rel: June 25, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190876
____________________
Shorter Brothers, Inc., Joseph Shorter, and Jason Shorter
v.
Vectus 3, Inc.
____________________
1190903
____________________
Vectus 3, Inc.
v.
Shorter Brothers, Inc., Joseph Shorter, and Jason Shorter
Appeals from Jefferson Circuit Court
(CV-19-903870)
MITCHELL, Justice.
Vectus 3, Inc., sued Shorter Brothers, Inc., and its owners for
breaching an asset-purchase agreement and related claims. In doing so,
Vectus asked the trial court to pierce Shorter Brothers' corporate veil --
that is, hold Shorter Brothers' owners personally liable for the company's
actions. The trial court granted complete relief to Vectus and awarded it
damages, leading the defendants to appeal to this Court. Vectus cross-
appealed, arguing that the damages awarded were insufficient. We affirm
the trial court's judgment.
Facts and Procedural History
Vectus operated FedEx Ground delivery routes for several years
before its owner decided to sell its assets. Brothers Joseph Shorter and
Jason Shorter expressed interest in purchasing those assets. In March
2018, Joseph and Jason filed a certificate of formation in the Jefferson
Probate Court to form Shorter Brothers.
Shorter Brothers entered into an asset purchase agreement ("the
Agreement") with Vectus in October 2018. In the Agreement, Shorter
2
1190876, 1190903
Brothers agreed to purchase the rights to Vectus's contract with FedEx
Ground and nine delivery trucks for $400,000 at the closing scheduled for
October 31, 2018. The Agreement obligated Shorter Brothers to wire the
funds to Vectus at closing, which Shorter Brothers planned to finance with
a loan. Because of concerns that Shorter Brothers would not obtain
financing by closing, the parties provided the following financing
contingency in the Agreement:
"[Shorter Brothers] anticipates securing bank financing to
provide the $400,000 for closing. From November 3, 2018 until
the $400,000 (plus accrued interest) is received by [Vectus],
[Shorter Brothers] agrees to pay a rental fee for the 9 trucks
in Schedule B of $1,350 per week .... If funds have not been
received by [Vectus] by January 1, 2019: [Shorter Brothers]
agrees to transfer $40,000 by January 2, 2019 to [Vectus;]
[Shorter Brothers] agrees to make monthly payments of $4,200
to [Vectus] (1st payment due on January 2nd, 2019 ... and due
the 1st of the month after that)[.] [Shorter Brothers] will
diligently seek to secure financing to pay-off the remaining
balance (including accrued interest - which will accrue
monthly @ a 7% annual rate) of the $400,000 taking into
account the $40,000 transfer and any monthly payments
received."
Shorter Brothers failed to obtain financing. As a result, it then paid:
•
The $1,350 weekly rental fees from November 2018 until
January 2019;
3
1190876, 1190903
•
The $40,000 payment in January 2019; and
•
The $4,200 monthly payments from January 2019
through June 2019.
It ceased making any payments after June 2019.
Vectus sued Shorter Brothers, Joseph, and Jason ("the defendants")
in August 2019 in the Jefferson Circuit Court. Vectus asserted claims of
breach of contract, unjust enrichment, and conversion. It also alleged that
Shorter Brothers was the alter ego of Joseph and Jason, and it urged the
trial court to hold them personally liable for Shorter Brothers' actions.
Vectus moved for summary judgment on January 31, 2020. At that
point, Vectus had served written discovery on the defendants but had
encountered difficulty getting them to respond -- even though the trial
court had granted two motions to compel and one motion for sanctions, all
filed by Vectus. The defendants, who had not served any discovery of
their own or conducted any depositions, submitted a general opposition to
Vectus's summary-judgment motion, but they did not attach any affidavits
or other evidence to their filing. The defendants also filed a motion under
Rule 56(f), Ala. R. Civ. P., in which they asked the trial court to deny
4
1190876, 1190903
Vectus's motion for summary judgment and allow them the "opportunity
to finish discovery."
The trial court postponed the hearing on Vectus's summary-
judgment motion from March 3, 2020, until April 29, 2020, "[t]o give all
Parties time to provide more information to the Court ...." The defendants
did not serve or conduct any discovery during the extra time. Despite the
defendants' failure to act, the trial court went forward with the summary-
judgment hearing on April 29. Several weeks later, the defendants hired
new counsel. Not long thereafter, the defendants filed an affidavit from
Joseph contesting some of the factual matters at issue and attaching
various financial documents from Shorter Brothers. Within a few weeks,
while Vectus's summary-judgment motion remained under consideration,
the defendants served their first discovery requests.
The trial court then entered summary judgment and awarded
$400,000 to Vectus -- an amount equal to the purchase price under the
Agreement. Shorter Brothers filed for bankruptcy relief under Chapter
11 of the Bankruptcy Code shortly after the trial court denied the
5
1190876, 1190903
defendants relief from its judgment. The defendants then appealed to this
Court. Vectus cross-appealed.
Analysis
The defendants contend that the trial court erred by (1) failing to
allow further discovery and consider certain documents before entering
summary judgment and (2) piercing Shorter Brothers' corporate veil. In
its cross-appeal, Vectus argues that the trial court properly entered
summary judgment but that the trial court erred by awarding damages of
only $400,000. Vectus argues that its true damages are $597,566. We
address these arguments below.
A. The Defendants' Appeal
1. The Trial Court Did Not Exceed its Discretion by
Disregarding Certain Documents or Precluding Further
Discovery
The defendants argue that the trial court erred by not allowing
further discovery and by not considering documents they submitted in
response to Vectus's summary-judgment motion, including Joseph's
affidavit. Concerning their first argument, Rule 56(f), Ala. R. Civ. P.,
allows a party opposing a summary-judgment motion to file an affidavit
6
1190876, 1190903
notifying the trial court that it is presently unable to present "facts
essential to justify the party's opposition." If the trial court agrees, it
"may deny the motion for summary judgment or may order a continuance
to permit affidavits to be obtained or depositions to be taken or discovery
to be had ...." Id. Whether to grant a continuance under Rule 56(f) is
" 'within the sound discretion of the trial court ....' " Rosser v. AAMCO
Transmissions, Inc., 923 So. 2d 294, 300 (Ala. 2005) (citation omitted). If
the party opposing summary judgment "properly establishes before the
trial court that unresponded-to discovery is crucial to the party's case, it
is error for the trial judge to enter a summary judgment before the
discovery has been supplied." Id. But "[o]nly rarely will an appellate
court find that the trial court has exceeded its discretion in not allowing
a requested continuance for the purpose of conducting further discovery."
Id. at 301.
The defendants filed a motion under Rule 56(f) at the same time
they submitted their general opposition to Vectus's summary-judgment
motion. At that time -- more than five months after the lawsuit began --
the defendants had not served any written discovery or taken any
7
1190876, 1190903
depositions, so there was no "unresponded-to discovery." Id. at 300. And
by that point, the defendants already had a history of failing to adequately
respond to Vectus's discovery. Despite these deficiencies, the trial court
granted the defendants nearly two more months to conduct additional
discovery. There is no indication that the defendants objected on the basis
that this amount of extra time was insufficient.
The summary-judgment hearing came and went without any
affirmative discovery from the defendants. In fact, the defendants did not
serve any discovery until over a month after the summary-judgment
hearing had occurred. And it does not appear that the defendants filed a
second Rule 56(f) motion. Under these circumstances, it is clear that the
trial court did not exceed its discretion by refusing to delay consideration
of Vectus's summary-judgment motion any further. See id. at 302 ("[W]e
cannot find that the trial judge exceeded his discretion in denying a
continuance, given the multiple opportunities available to [the plaintiff]
over the long course of the pendency of this action ...."); McGhee v. Martin,
892 So. 2d 398, 406 (Ala. Civ. App. 2004) (affirming denial of Rule 56(f)
continuance when "the lengthy discovery period and McGhee's apparent
8
1190876, 1190903
delay in moving ahead with the case mitigate[d] against allowing a
continuance").
The defendants also argue that it was "incomprehensible" for the
trial court to "ignore" Joseph's affidavit. Rule 56(c)(2) states: "Subject to
[Rule 56(f)], any statement or affidavit in opposition shall be served at
least two (2) days prior to the hearing." The defendants failed to submit
an affidavit or other evidence until one month after the summary-
judgment hearing. Although the trial court did not mention the affidavit
in its order granting Vectus's summary-judgment motion, it clarified in a
later order that it considered Joseph's affidavit "untimely filed." Given
the plain language of Rule 56(c)(2), the trial court did not err by refusing
to consider Joseph's affidavit.1 See Speer v. Pin Palace Bowling Alley, 599
So. 2d 1140, 1142 (Ala. 1992) (holding that trial court did not abuse its
1The defendants fault their previous counsel for these issues and
highlight the efforts that their new counsel undertook once he was hired.
Regardless of whether the defendants are right to fault their prior
counsel, the propriety of their counsel's actions is not at issue in this
appeal.
9
1190876, 1190903
discretion in refusing to consider affidavit in opposition to summary-
judgment motion filed after the summary-judgment hearing).
2. The Trial Court Did Not Err by Piercing the Corporate Veil
The defendants contend that the trial court erred by entering
summary judgment in favor of Vectus and holding Joseph and Jason
personally liable for Shorter Brothers' actions. We disagree.
Our review of the trial court's summary judgment is de novo, and we
apply the same standard that the trial court applied -- that is, 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.' " Shoals Extrusion, LLC v. Beal, 288 So. 3d
448, 450 (Ala. 2019) (citation omitted). In conducting our review, " 'we
must review the evidence in the light most favorable to the nonmovant.' "
Id. (citation omitted). " '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.' " Id. at 450-51 (citation omitted). And
"[w]hen a motion for summary judgment is made and supported as
10
1190876, 1190903
provided in" Rule 56, Ala. R. Civ. P., "an adverse party may not rest upon
the mere allegations or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for
trial." Rule 56(e). If not, "summary judgment, if appropriate, shall be
entered against [that party]." Id.
The defendants do not contest the trial court's summary judgment
on the breach-of-contract, conversion, or unjust-enrichment claims.
Rather, they argue that the trial court should not have pierced Shorter
Brothers' corporate veil. It is well established that "a corporation is a
legal entity existing separately from its shareholders." First Health, Inc.
v. Blanton, 585 So. 2d 1331, 1334 (Ala. 1991). Thus, "[p]iercing the
corporate veil is not a power that is lightly exercised." Id. It may be
appropriate when the corporate entity is (1) undercapitalized, (2) formed
or operated with a fraudulent purpose, or (3) operated "as an
instrumentality or alter ego" of its shareholders. Id.
Vectus advanced an alter-ego theory. To establish that an entity is
the alter ego of its owners, " '[t]he dominant party must have complete
11
1190876, 1190903
control and domination of the subservient corporation's finances, policy
and business practices so that at the time of the attacked transaction the
subservient corporation had no separate mind, will, or existence of its
own.' " Id. (citation omitted). The defendants concede this element. But
"mere domination cannot be enough for piercing the corporate veil."
Simmons v. Clark Equip. Credit Corp., 554 So. 2d 398, 400 (Ala. 1989).
Rather, "[t]here must be the added elements of misuse of control and harm
or loss resulting from it." Id. Thus, we have held that an alter-ego theory
of piercing the corporate veil is viable where
" ' "a corporation is set up as a subterfuge, where shareholders
do not observe the corporate form, where the legal
requirements of corporate law are not complied with, where
the corporation maintains no corporate records, where the
corporation maintains no corporate bank account, where the
corporation has no employees, where corporate and personal
funds are intermingled and corporate funds are used for
personal purposes, or where an individual drains funds from
the corporation." ' "
Econ Mktg., Inc. v. Leisure Am. Resorts, Inc., 664 So. 2d 869, 870 (Ala.
1994) (citations omitted).
The evidence submitted with Vectus's summary-judgment motion
shows that Shorter Brothers' shareholders -- Joseph and Jason -- did not
12
1190876, 1190903
observe the corporate form and that their misuse of the corporate form left
Vectus with little recourse. As the trial court noted, in response to
Vectus's request for "corporate documents," the defendants failed to
produce copies of any bylaws, operating agreement, shareholder
agreement, corporate minutes, or other documents to support that Shorter
Brothers had a separate corporate existence and was not the mere
"instrumentality or alter ego" of Joseph and Jason. Blanton, 585 So. 2d
at 1134. Further, the defendants' discovery responses indicate that
Shorter Brothers had little, if any, financial records at that time. The
defendants likewise said in discovery responses that Shorter Brothers had
employees; yet they produced no information about employee numbers,
roles, or duties. See Econ Mktg., 664 So. 2d at 870-71 (holding that trial
court erred by not piercing corporate veil when entity "failed to keep
complete and correct records of all transactions of the corporation and
minutes of the proceedings of its shareholders and board of directors" and
where "the financial records, books, or minutes of the meetings" of
directors could not be located, among other issues).
13
1190876, 1190903
The defendants did not timely produce any admissible evidence to
refute the assertions in Vectus's summary-judgment motion. Instead,
they "rest[ed] upon the mere allegations or denials of [their] pleading ...."
Rule 56(e). And even then, the defendants devoted only a handful of
sentences to rebutting the alter-ego theory in their general opposition to
Vectus's summary-judgment motion.
On appeal, the defendants point to documents attached to Vectus's
summary-judgment motion. Specifically, they cite Shorter Brothers'
certificate of formation, the Agreement, and Shorter Brothers' Form 1099-
MISC from 2018 to refute Vectus's alter-ego theory. But those documents
fail to provide "substantial evidence" that Shorter Brothers had a
corporate existence separate from Joseph and Jason. Beal, 288 So. 3d at
450. The certificate of formation merely shows that Shorter Brothers
exists as a legal entity -- a fact no one disputes. And while entering into
contracts may, in some circumstances, indicate that an entity has a
separate corporate existence, the Agreement is the only contract to which
the defendants point.
14
1190876, 1190903
Like contracts, corporate tax records may support a finding of a
separate corporate existence. But the defendants pointed to only a single
Form 1099-MISC that Shorter Brothers filed in 2018. That form reveals
Shorter Brothers' income, salary expenses (without specifying whose
salaries it covered), and minor tax and repair expenses over a two-month
period. The fact that Shorter Brothers filed one tax document identifying
income and unspecified purported expenses for two months of its existence
does not, standing alone, constitute "substantial evidence."2
In sum, Vectus made a prima facie showing that Joseph and Jason
operated Shorter Brothers as their instrumentality or alter ego.3 The
2On appeal, the defendants also rely on Joseph's affidavit and the
other documents they submitted. But, as discussed above, the trial court
properly disregarded those submissions as untimely. We therefore limit
our review to the material that the trial court considered. See Mathis v.
Jim Skinner Ford, Inc., 361 So. 2d 113, 116 (Ala. 1978) ("The propriety of
granting motions for summary judgment must be tested by reviewing
what the trial court had before it when it granted the motion.").
3Although Vectus asserted an alter-ego theory in its complaint
seeking to pierce the corporate veil, we note that the record also contains
evidence that Shorter Brothers was undercapitalized. See Blanton, 585
So. 2d at 1134 (noting that it may be appropriate to pierce the corporate
veil if the corporation is undercapitalized); see also Smith v. Mark Dodge,
Inc., 934 So. 2d 375, 380 (Ala. 2006) ("[T]his Court will affirm a judgment
for any reason supported by the record that satisfies the requirements of
15
1190876, 1190903
defendants failed to timely produce substantial evidence -- or any
evidence, for that matter -- revealing the existence of a genuine issue of
material fact. Thus, the trial court did not err by piercing Shorter
Brothers' corporate veil.
B. Vectus's Cross-Appeal
In its summary-judgment order, the trial court awarded $400,000 --
an amount equal to the purchase price under the Agreement -- to Vectus.
But the trial court did not explain why it awarded that amount. Vectus
contends that the trial court erred and that its true damages are
$597,566.
Damages for a breach of contract "should return the injured party
to the position he would have been in had the contract been fully
performed." Garrett v. Sun Plaza Dev. Co., 580 So. 2d 1317, 1320 (Ala.
due process, even where the ground upon which we affirm was not argued
before the trial court or this Court." (internal citation omitted)). Shorter
Brothers did not have -- and could not obtain -- funds sufficient to
purchase the assets required to run the business. It also ceased making
the weekly rental payments after about two months, in part because of
that failure; ceased making monthly payments by June 2019; and then
filed for bankruptcy protection when the trial court denied relief from its
judgment.
16
1190876, 1190903
1991). That determination "is within the discretion of the fact-finder and
is presumed to be correct." Tri-Tube, Inc. v. OEM Components, Inc., 672
So. 2d 1303, 1306 (Ala. Civ. App. 1995) (citing IMAC Energy, Inc. v. Tittle,
590 So. 2d 163 (Ala.1991)).
At the time Vectus filed its summary-judgment motion, it argued --
based primarily on the Agreement's terms -- that it had incurred damages
of $562,102.44. It appears that Vectus calculated that amount in the
following manner:
•
Unpaid balance of the purchase price = $408,904.44.4
•
Fifty-six weeks of unpaid $1,350 weekly rental fees =
$75,600.
•
Seven unpaid $4,200 monthly payments = $29,400.
4Vectus arrived at this number in the manner outlined in Exhibit B
to its complaint. That is, Vectus began with the unpaid purchase price of
$400,000 and added the weekly interest amounts. Vectus then deducted
the initial $40,000 payment from the balance. From there, Vectus
included unpaid weekly vehicle rental fees in the total unpaid balance to
which interest applied. Relatedly, Vectus also reduced the unpaid balance
based on Shorter Brothers' monthly payments, but did not reduce the
balance by $4,200 -- instead, it appears Vectus reduced each monthly
payment by one week's rental fee.
17
1190876, 1190903
•
Interest expenses incurred = $48,200.5
Before the summary-judgment hearing, Vectus supplemented its motion,
arguing that it was entitled to an additional 3 months of unpaid monthly
payments, 12 more weeks of rental fees, and additional accrued interest,
bringing the alleged total damages to $597,566.
This calculation is questionable for several reasons. First, the
calculation includes at least some of the unpaid $1,350 weekly rental fees
in the unpaid balance of the purchase price. The Agreement states that
Shorter Brothers "will diligently seek to secure financing to pay-off the
remaining balance (including accrued interest - which will accrue monthly
@ a 7% annual rate) of the $400,000 taking into account the $40,000
transfer and any monthly payments received." That is, it contemplates
interest accruing on the "remaining balance ... of the $400,000" -- not the
unpaid weekly rental fees. See Garrett, 580 So. 2d at 1320 (declining to
award damages that "would place on the developers a burden not provided
5Vectus supported this assertion with an affidavit of its owner
stating that Vectus had incurred these interest expenses for credit
obligations owed to Stearns Bank and other unspecified creditors.
18
1190876, 1190903
for in the contract"). Second, for the six monthly payments that Shorter
Brothers made, Vectus applied a credit of only $2,850 to the balance of the
unpaid purchase price. That is, it appears that Vectus considered the first
$1,350 of the monthly payment as one week's rental fee, resulting in a
higher unpaid balance of the purchase price. There is nothing in the
Agreement, and Vectus cites no authority in its briefs or in the record,
that permits this practice. Third, it appears that some of the unpaid 56
weeks of rental fees were also included in Vectus's calculation of the
unpaid balance of the purchase price, meaning that at least some of the
missing rental payments were double-counted. Finally, Vectus seeks 10
months of unpaid monthly payments, or $42,000. But as discussed above,
those monthly payments should be credited to the balance of the unpaid
purchase price -- not added to it. See id. ("[T]he injured party is not to be
put in a better position by a recovery of damages for the breach than he
would have been in if there had been performance.").
Vectus's damages calculation is the same on appeal as it was before
the trial court. Given the apparent defects in that calculation, we cannot
say that the trial court exceeded its discretion in ignoring it or that Vectus
19
1190876, 1190903
has overcome the presumption that the trial court's damages award is
correct. See Tri-Tube, 672 So. 2d at 1306. We thus decline to reverse the
trial court's judgment as to damages.
Conclusion
The defendants have not established that the trial court exceeded its
discretion by precluding further discovery before entering summary
judgment or by disregarding untimely submissions in response to Vectus's
summary-judgment motion. Nor have the defendants established that the
trial court erred by piercing Shorter Brothers' corporate veil and holding
Joseph and Jason liable. Finally, because Vectus's calculation of total
damages is apparently flawed, we cannot say that the trial court erred in
rejecting it.
1190876 -- AFFIRMED.
1190903 -- AFFIRMED.
Parker, C.J., and Shaw and Bryan, JJ., concur.
Mendheim, J., concurs in the result.
20 | June 25, 2021 |
3e57d5c0-1634-432c-ada3-ad58f1def99c | Ex parte K.B. | N/A | 1200436 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200436
Ex parte K.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: K.B. v. Geneva County Department of Human
Resources) (Geneva Juvenile Court: JU-17-142.03; Civil Appeals :
2190705).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
1f671fea-f87b-4a48-83b7-cca667e445be | Ex parte Renaldo Diaz Perez. | N/A | 1200498 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200498
Ex parte Renaldo Diaz Perez. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Renaldo Diaz Perez v. State
of Alabama) (Franklin Circuit Court: CC-11-310.62; Criminal Appeals :
CR-19-0963).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
dd38fbc2-f1c9-4a83-94a0-4775529ba736 | Ex parte Tyrone Christopher Thompson. | N/A | 1200442 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200442
Ex parte Tyrone Christopher Thompson. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Tyrone
Christopher Thompson v. State of Alabama) (Calhoun Circuit Court:
CC-11-491; Criminal Appeals :
CR-18-1161).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
35ce0714-92cb-4cc5-b88b-43b2bca82da2 | Ex parte Venture Express, Inc. | N/A | 1200351 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 7, 2021
1200351
Ex parte Venture Express, Inc. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Gina Barfoot Sellers v. Venture
Express, Inc.) (Cullman Circuit Court: CV-17-900316; Civil Appeals :
2190165).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
7, 2021:
Writ Denied. No Opinion. (Special Writing) Bryan, J. -
Parker, C.J.,
and Bolin, Wise, Sellers, Mendheim, and Stewart, JJ., concur. Shaw and
Mitchell, JJ., concur specially.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 7 th d a y o f M ay, 2021.
Clerk, Supreme Court of Alabama | May 7, 2021 |
945a5e49-1c12-45aa-923f-2b0c6b11cc58 | Ex parte Anthony L. Wilson. | N/A | 1200515 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200515
Ex parte Anthony L. Wilson. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Anthony L. Wilson v. State of
Alabama) (Mobile Circuit Court: CC-16-6799; Criminal Appeals :
CR-19-0826).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
d5dfbfc3-8645-4907-9a8e-e310caf2ccb9 | Ex parte Christine Hernandez, et al. | N/A | 1190839 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 23, 2021
1190839
Ex parte Christine Hernandez, et al. PETITION FOR WRIT OF MANDAMUS: CIVIL
(In re: In the matter of the Estate of J.B. ,
an alleged incapacitated person) (Mobile
Probate Court: 18-1816).
ORDER
The petition for writ of mandamus in this cause is denied.
PER CURIAM - Parker, C.J., and Bolin, Shaw, and Bryan, JJ., and Moore,
Special Justice,* concur. Sellers, Mendheim, Stewart, and Mitchell, JJ., dissent.
Wise, J., recuses herself.
*Judge Terry A. Moore of the Alabama Court of Civil Appeals was appointed to serve
as a Special Justice in regard to this appeal.
Witness my hand this 23rd day of April, 2021.
/ra | April 23, 2021 |
021d3eac-3709-4e69-b944-1109d8780fbd | Ex parte V.D.P. | N/A | 1200456 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200456
Ex parte V.D.P. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: V.D.P. v. Madison County Department of
Human Resources) (Madison Circuit Court: JU-17-962.03; Civil Appeals :
2190880).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
e9d576b5-ae44-4e70-8dea-081dade45f25 | Ex parte Gulf Health Hospitals, Inc., d/b/a Thomas Hospital. | N/A | 1180596 | Alabama | Alabama Supreme Court | REL: September 4, 2020
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.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2020
____________________
1180596
____________________
Ex parte Gulf Health Hospitals, Inc., d/b/a Thomas Hospital
PETITION FOR WRIT OF MANDAMUS
(In re: Larry D. Faison, as personal representative of the
Estate of Deborah Faison, deceased
v.
Gulf Health Hospitals, Inc., d/b/a Thomas Hospital; Baldwin
Emergency Physicians, PC; Bay Area Inpatient Physicians,
LLC; and Crisis Hospitalist Staffing Solutions, LLC)
(Baldwin Circuit Court, CV-17-900995)
MITCHELL, Justice.
1180596
Deborah Faison ("Deborah") died from cardiac arrest while
she was a patient at Thomas Hospital in Fairhope. Her husband
Larry D. Faison ("Faison") then sued Gulf Health Hospitals,
Inc. ("Gulf Health"), which owned and operated the hospital.
Over a year after filing suit, Faison was allowed to amend his
complaint by making additional factual allegations to support
his claims. Gulf Health now petitions this Court for a writ
of mandamus directing the trial court to strike the amended
complaint. We deny the petition.
Facts and Procedural History
On September 4, 2015, Deborah sought treatment at an
urgent-care center for symptoms that she believed were related
to a urinary-tract infection. A physician there confirmed
that Deborah's fever and low blood pressure were related to a
urinary-tract infection and encouraged her to consult with her
primary physician in the next few days or to go to the
emergency room if her symptoms worsened.
When Deborah began feeling worse later that night, she
went to the emergency department of Thomas Hospital. She was
admitted to the hospital in the early morning hours of
September 5, 2015. In an effort to treat Deborah's low blood
2
1180596
pressure, she was given intravenous doses of Levophed, a
medication similar to adrenaline that causes the
blood vessels
to contract and blood pressure to rise. At 6:10 p.m., the
Levophed drip was discontinued because Deborah's blood
pressure had stabilized at an acceptable level. Her overall
condition, however, did not improve.
There is no indication that Deborah's blood pressure
became dangerously low again, but sometime between 10:40 p.m.
and 11:00 p.m. she was given another dose of Levophed. At
approximately 11:00 p.m., Deborah went into cardiac arrest.
At approximately 11:10 p.m., in the process of reviving
Deborah, hospital staff gave her more Levophed, and her
condition stabilized for a short period. Soon after, however,
Deborah went into cardiac arrest again, and, at 12:15 a.m. on
September 6, 2015, she was pronounced dead.
On
August
25,
2017,
Faison,
as
the
personal
representative of Deborah's estate, sued Gulf Health and
other
parties that had delivered health-care services to Deborah
before her death, alleging that they had committed dozens of
negligent acts that proximately caused her death. Faison's
complaint specifically noted that Levophed had first been
3
1180596
ordered for Deborah at 5:40 a.m. before being discontinued at
6:10 p.m. and then later "restarted" at 11:10 p.m. after
Deborah went into cardiac arrest. Faison's complaint did not
address the administration of Levophed between 10:40 p.m. and
11:00 p.m., but it generally alleged that Gulf Health had
negligently stopped
administering
Levophed.
Faison's
case
was
eventually set for a September 2018 trial before being
postponed.
In September 2018, Faison began taking the depositions of
the health-care workers who had treated Deborah during her
hospitalization; by the end of October 2018, Faison had
deposed four nurses and two physicians. During some of those
depositions, Faison asked witnesses why Deborah was given
Levophed between 10:40 p.m. and 11:00 p.m. when her blood
pressure was, by all accounts, at an appropriate level. The
physician at Thomas Hospital who treated Deborah when she was
initially
admitted
testified
that,
given
Deborah's vital
signs
at that time, there was not a medical reason to administer
Levophed during that time and that it could have been
dangerous to do so. Another physician who treated Deborah
4
1180596
during her hospital stay likewise acknowledged that he did not
know why Levophed was given at that time.
On November 13, 2018, Faison filed an amended complaint
in which he alleged that Deborah had been given Levophed
sometime in the 20-minute period before she first went into
cardiac arrest and that the medication was not needed based on
her blood pressure at the time. Faison asserted that this
negligent
administration
of
Levophed
constituted
an
additional
breach of the standard of care.1
On November 20, 2018, Gulf Health moved the trial court
to strike Faison's amended complaint for failing to comply
with Rule 15(a), Ala. R. Civ. P., which provides:
"Unless a court has ordered otherwise, a party may
amend a pleading without leave of court, but subject
to disallowance on the court's own motion or a
motion to strike of an adverse party, at any time
more than forty-two (42) days before the first
setting of the case for trial, and such amendment
shall be freely allowed when justice so requires.
Thereafter, a party may amend a pleading only by
1Faison's amended complaint also alleged for the first
time that Deborah's endotracheal tube had not been correctly
inserted. Gulf Health argues that Faison should not have been
permitted to amend his complaint to make this allegation. In
his response to Gulf Health's mandamus petition, Faison states
that he intends to dismiss any claim based on the alleged
negligent insertion of the endotracheal tube; therefore, we
do
not discuss that allegation further.
5
1180596
leave of court, and leave shall be given only upon
a showing of good cause."
Gulf Health specifically argued that Faison's amended
complaint should be struck because (1) Faison failed to seek
the trial court's permission before filing the amended
complaint even though the first trial setting had passed and
(2) the additional facts alleged by Faison were available to
him when he filed his original complaint, leaving him without
good cause for asserting a claim based on those facts after
the statute of limitations had expired.
Following a hearing, the trial court denied Gulf Health's
motion to strike. Gulf Health now petitions this Court for
mandamus relief, arguing that the trial court exceeded its
discretion by permitting Faison to amend his complaint to
assert
the
allegation
that
Levophed
was
negligently
administered to Deborah in the 20-minute period before she
first went into cardiac arrest.
Standard of Review
"A writ of mandamus is an extraordinary remedy,
and is appropriate when the petitioner can show
(1) a clear legal right to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction
of the court. Ex parte
6
1180596
Inverness Constr. Co., 775 So. 2d 153, 156 (Ala.
2000)."
Ex parte BOC Grp., Inc., 823 So. 2d 1270, 1272 (Ala. 2001).
"'The petitioner bears the burden of proving all four of these
elements before a writ of mandamus will issue.'" Tatum v.
Freeman, 893 So. 2d 1213, 1218 (Ala. Civ. App. 2004) (quoting
trial court's order) (emphasis added).
Analysis
In a recent decision, Ex parte State Farm Fire & Casualty
Co., [Ms. 1180451, April 24, 2020] ___ So. 3d ___, ___ (Ala.
2020), this Court emphasized that a party seeking mandamus
relief must adequately address the third element of the
mandamus test –– whether the party lacks "another adequate
remedy." Parties often try to satisfy this element by citing
caselaw in which this Court has determined that the issue
being raised by the party is recognized for interlocutory
appellate review. Although that may be sufficient in those
cases in which it is well established that the issue being
raised is appropriate for
mandamus review (e.g., immunity), it
is not sufficient here, where Gulf Health is challenging the
trial court's ruling on a motion to amend a complaint. More
is needed.
7
1180596
To support its argument that mandamus review is
appropriate, Gulf Health quotes the following passage from Ex
parte Alfa Mutual Insurance Co., 212 So. 3d 915, 921 (Ala.
2016), in which this Court issued a writ of mandamus directing
the trial court to strike an amended complaint that the trial
court had allowed:
"'A
writ
of
mandamus
is
an
extraordinary remedy, and it will be
"issued only when there is: 1) a clear
legal right in the petitioner to the order
sought; 2) an imperative duty upon the
respondent to perform, accompanied by a
refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked
jurisdiction of the court." Ex parte
United Serv. Stations, Inc., 628 So. 2d
501, 503 (Ala. 1993). A writ of mandamus
will issue to compel the exercise of a
trial court's discretion, but it will not
issue to control or to review a court's
exercise of its discretion unless an abuse
of
discretion
is
shown.
Ex
parte
Auto–Owners Ins. Co., 548 So. 2d 1029 (Ala.
1989). If the remedy by way of appeal is
adequate, as is usually the case with
rulings
allowing
or
disallowing
amendments,
we will decline to grant the writ; in those
cases in which an appeal does not provide
an adequate remedy, we will issue the writ.
Ex parte Miller, 292 Ala. 554, 297 So. 2d
802, 805 (1974). See, also, Huskey v. W.B.
Goodwyn Co., 295 Ala. 1, 321 So. 2d 645
(1975).'
"Ex parte Yarbrough, 788 So. 2d 128, 132 (Ala.
2000). 'A writ of mandamus ... will issue to
8
1180596
correct a trial court's ruling regarding the
amendment of pleadings ... when it is shown that the
trial court has exceeded its discretion.' Ex parte
Liberty Nat'l Life Ins. Co., 858 So. 2d 950, 952
(Ala. 2003) (citing Rector v. Better Houses, Inc.,
820 So. 2d 75 (Ala. 2001))."
212 So. 3d at 918 (emphasis added).
Gulf Health cites this passage for the principle that
mandamus review is available to a party seeking immediate
appellate review of a trial court's decision granting or
denying a plaintiff's motion to amend his or her complaint.
But Alfa does not go as far as Gulf Health would like. Alfa
provides only that mandamus review may be available to a party
aggrieved by a trial court's ruling on a motion to amend a
complaint. Indeed, the Alfa Court expressly recognized that
an appeal is "usually" an adequate remedy for a party in Gulf
Health's position; thus, it follows that mandamus review is
generally not available to such a party. See also Ex parte
Miller, 292 Ala. 554, 557-58, 297 So. 2d 802, 805 (1974) ("It
is not to be assumed or understood, however, that mandamus
will be allowed as a method of reviewing all rulings denying
the right to amend a complaint or other pleading. In accord
with the weight of authority and sound reasoning, it may well
9
1180596
be that review of the great majority of rulings allowing or
disallowing amendments will be only by appeal.").
Because mandamus review of a trial court's ruling on a
plaintiff's motion to amend his or her complaint is the
exception, not the rule, it is incumbent upon a party seeking
mandamus review of such a ruling to explain why an ordinary
postjudgment appeal would not be adequate. Gulf Health has
not done so here; rather, it has stated in conclusory fashion
that it "does not have an adequate remedy by appeal."
Petition at 9. This bare statement by Gulf Health is
insufficient to meet its burden. See State Farm, ___ So. 3d
at ___ (explaining that a petitioner seeking mandamus relief
bears the burden of establishing that it lacks another
adequate remedy).2
This case is reminiscent of State Farm, in which a
petitioner sought mandamus review of a trial court's denial of
2We recognize that Alfa did not expressly state why an
appeal was an inadequate remedy for the petitioner in that
case. Nevertheless, by citing Ex parte Yarbrough, 788 So. 2d
128, 132 (Ala. 2000), the Court reinforced that an appeal is
generally an adequate remedy for a party challenging a trial
court's ruling on a motion to amend a complaint, and it is
well established that "[t]he petitioner seeking a writ of
mandamus bears the
affirmative burden of proving the existence
of the conditions requisite for issuance of the writ." Ex
parte Vulcan Materials Co., 992 So. 2d 1252, 1259 (Ala. 2008).
10
1180596
the petitioner's motion to dismiss. Like a trial court's
ruling on a motion to amend a complaint, a trial court's
ruling denying a motion to dismiss is subject to mandamus
review only in certain, limited circumstances –– the general
rule is that an appeal provides an adequate remedy. See Ex
parte Haralson, 853 So. 2d 928, 931 n.2 (Ala. 2003) ("The
denial of a motion to dismiss ... generally is not reviewable
by a petition for writ of mandamus, subject to certain narrow
exceptions, such as the issue of immunity."). The petitioner
in State Farm made a bare assertion that an appeal was
inadequate
but
failed
to
explain
why
its
case
was
extraordinary and merited an exception to the general rule
that a postjudgment appeal provides an adequate remedy. Thus,
we concluded that the petitioner had not met its burden of
establishing that it was entitled to mandamus relief, and we
denied its petition. Similarly, Gulf Health has not
demonstrated that it lacks another adequate remedy. For that
reason, we must deny its petition.
Conclusion
Faison sued Gulf Health alleging that his wife's death
was the result of numerous acts of negligence committed by
11
1180596
Thomas Hospital employees while she was a patient there. Over
a year after suing, Faison tried to amend his complaint by
adding facts to support his claim. Gulf Health objected,
arguing that the amendment was untimely and without good
cause, but the trial court allowed it. Gulf Health then
petitioned this Court for mandamus relief, arguing that the
trial court exceeded its discretion by allowing the amended
complaint. As explained above, however, it is unnecessary for
us to consider the substance of the trial court's decision
because Gulf Health did not meet its burden of showing that a
postjudgment appeal is an inadequate remedy. Therefore, the
petition is denied.
PETITION DENIED.
Parker, C.J., and Wise, Bryan, Mendheim, and Stewart,
JJ., concur.
Bolin and Sellers, JJ., concur in the result.
12
1180596
SELLERS, Justice (concurring in the result).
It is well settled that the burden rests on the
petitioner to demonstrate that its petition for a writ of
mandamus presents an exceptional case –- that is, one in which
an appeal is not an adequate remedy. Ex parte BOC Grp., Inc.,
823 So. 2d 1270 (Ala. 2001). However, here, the opinion
denies the petition solely on the basis that Gulf Health
Hospitals,
Inc.,
d/b/a
Thomas
Hospital
("Gulf
Health"),
failed
to demonstrate that an appeal would not provide an adequate
remedy. In my opinion, denying a petition solely on that
basis sets an unnecessary precedent that either precludes or
severely limits review of many important issues and, in
essence, allows this Court to turn a blind eye to what could
amount to a blatant injustice to a petitioner. This Court has
routinely exercised its writ power as necessary to correct an
erroneous trial-court ruling without addressing whether the
petitioner had an adequate remedy by appeal. See Ex parte
Alfa Mut. Ins. Co., 212 So. 3d 915 (Ala. 2016)(issuing writ
directing trial court to vacate its order denying Alfa's
motion
to
strike
plaintiffs' amended
complaint
when
plaintiffs
failed to show good cause for amending original complaint
13
1180596
later than 42 days before date of initial trial setting); Ex
parte Liberty Nat'l Life Ins. Co., 858 So. 2d 950 (Ala.
2003)(issuing writ directing trial court to grant insurance
company's motion for leave to include affirmative defense);
and Ex parte Bailey, 814 So. 2d 867 (Ala. 2001)(issuing writ
directing trial court to allow plaintiff to amend complaint to
assert additional claim against general contractor). I would
further add that, although the burden always rests with the
petitioner to demonstrate the elements required for the writ
to issue, it is equally important, as with any appeal, that
a party opposing the petition also address with some degree of
specificity any alleged inadequacies of the petition. In this
case, Larry D. Faison fails to challenge Gulf Health's
omission of an argument that an appeal would not be an
adequate remedy. In fact, neither party makes mention of the
adequacy of an appeal whatsoever. For the stated reasons, I
would address the merits of the case to determine whether Gulf
Health has demonstrated a clear legal right to the relief
sought.
Under Rule 15(a), Ala. R. Civ. P., amendments to
pleadings are to be "freely allowed" unless there exists some
14
1180596
valid reason to deny them –- such as actual prejudice or
delay. Ex parte GRE Ins. Grp., 822 So. 2d 388, 390 (Ala.
2001). In this case, the trial court denied the motion to
strike the amended complaint without stating the theory or
theories upon which it relied. Thus, the trial court could
have determined, among other things, that, although there was
a delay in filing the amended complaint, that delay would not
cause any actual prejudice to Gulf Health. Gulf Health limits
its argument solely to undue delay, without any discussion of
prejudice. Accordingly, even assuming the trial court
exceeded its discretion in failing to strike the amended
complaint, Gulf Health, without arguing how allowing the
amended complaint was prejudicial to it, has not demonstrated
a clear legal right to the relief sought. For this reason, I
concur to deny the petition.
15 | September 4, 2020 |
c2c9c444-16fc-4897-a2fb-62c90e779197 | Ex parte Charles Davis. | N/A | 1200477 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200477
Ex parte Charles Davis. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Charles Davis v. State of
Alabama) (Elmore Circuit Court: CC-09-41.61; Criminal Appeals :
CR-19-0874).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
4086059a-90ed-4255-a352-43ad21a8aa0f | Mary Nicole Woods Lambert, as executrix of the Estate of David Alan Lambert, deceased v. Dr. David Stallworth, M.D.; Monroeville Emergency Group, L.L.C.; and Schumacher Medical Corporation of Alabama, Inc. | N/A | 1190851 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190851
Mary Nicole Woods Lambert, as executrix of the Estate of David Alan
Lambert, deceased v. Dr. David Stallworth, M.D.; Monroeville Emergency
Group, L.L.C.; and Schumacher Medical Corporation of Alabama, Inc.
(Appeal from Monroe Circuit Court: CV-16-900034).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | April 16, 2021 |
aa10b1ed-c05b-45bc-b7af-33a37a3e25a6 | Ex parte Timothy Jackson Richards. | N/A | 1200446 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200446
Ex parte Timothy Jackson Richards. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Timothy
Jackson Richards v. State of Alabama) (Marion Circuit Court:
CC-18-900024; Criminal Appeals :
CR-19-0284).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and W
ise, Sellers, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
b9c51f98-71c2-45a2-a162-1e0d0f3a2758 | Ex parte Rickey Glenn Lanford. | N/A | 1200430 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200430
Ex parte Rickey Glenn Lanford. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Rickey Glenn Lanford v.
State of Alabama) (Madison Circuit Court: CC-11-2333.62; Criminal
Appeals :
CR-20-0031).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
89d9beb1-d88d-45e9-8a00-689a0f6aecd5 | Ex parte Johnny Williams. | N/A | 1200509 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200509
Ex parte Johnny Williams. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: State of Alabama v. Johnny
Williams) (Bessemer Circuit Court: CC-92-1762; Criminal Appeals :
CR-20-0121).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
06d845ad-e4fc-459f-8934-3f35ca937cf7 | Ex parte Danny Gene McGee. | N/A | 1200476 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200476
Ex parte Danny Gene McGee. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Danny Gene McGee v. State
of Alabama) (Lamar Circuit Court: CC-19-43, CC-19-44, CC-19-45; Criminal
Appeals :
CR-19-0562).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
f2522be6-a295-422a-ab21-f269ed5fc036 | Lori Elliott Adams, as personal representative of the Estate of H. Joan Elliott, deceased v. Patricia Moore and Dan Moore | N/A | 1190695 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1190695
Lori Elliott Adams, as personal representative of the Estate of H
.
Joan Elliott, deceased v. Patricia M
oore and Dan M
oore (Appeal from
Jefferson Circuit Court: CV-11-903996).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on April 16, 2021:
Application Overruled. No Opinion. Parker, C.J. -
Shaw, Bryan,
Mendheim, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on March 5, 2021:
Application for Rehearing Filed 10 copies. Brief in Support also filed.
10c 3/05/2021 CM. Parker, C.J. -
Application for Rehearing Filed 10 copies.
Brief in Support also filed. 10c 3/05/2021 C
M
.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
b62fa107-0c6b-4dec-82ce-ef64b5f05fc4 | Lem Harris Rainwater Family Trust et al. v. Rainwater | N/A | 1190952, 1190951 | Alabama | Alabama Supreme Court | REL: June 30, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190951
____________________
Lem Harris Rainwater Family Trust, Charles Edward
Rainwater, Jean Rainwater Loggins, and Rainwater Marital
Trust
v.
Lenn Rainwater
____________________
1190952
____________________
Lem Harris Rainwater Family Trust, Charles Edward
Rainwater, Jean Rainwater Loggins
v.
Lenn Rainwater
Appeals from St. Clair Circuit Court
(CV-18-900281)
MITCHELL, Justice.
These appeals spring from a legal dispute between four siblings
about the management of trusts set up by their parents. The siblings --
Lenn Rainwater ("Lenn"), Charles Edward Rainwater ("Charles"), Jean
Rainwater Loggins, and Mary Rainwater Breazeale -- executed a
settlement agreement resolving their dispute, but, in appeal no. 1190952,
we are asked to consider whether that agreement should be declared void.
Lenn has also sought to garnish trust assets that she says are hers; in
appeal no. 1190951, we are asked to decide whether those garnishment
proceedings should be quashed. But we ultimately do not reach either of
those issues because both appeals are due to be dismissed -- appeal no.
1190952 was filed too late and appeal no. 1190951 was filed too soon.
Facts and Procedural History
Lem Rainwater ("Lem") and Jean Rainwater ("Jean") had four
children -- Lenn, Charles, Loggins, and Breazeale. In 1995, Lem and Jean
2
1190951, 1190952
set up the Lem Harris Rainwater Family Trust ("the Family Trust"). The
terms of the Family Trust provided that when one of them died, the trust
assets would be split so that the deceased parent's assets would go into
the Rainwater Bypass Trust and the remaining assets would go into the
Rainwater Marital Trust ("the Marital Trust").1 Jean died in 2007; Lenn
alleges that it is not clear how and if her parents' assets in the Family
Trust were actually divided into the two other trusts at that time.
In January 2009, Lem executed a document purporting to restate the
terms of the Marital Trust. Among other things, this restatement
provided that each of the siblings would receive certain real property upon
his death. Notably, Lenn was to receive all rights to Victorian Village, a
shopping center in Sylacauga. Lem restated the Marital Trust on two
more occasions, in November 2011 and in April 2013.
1A bypass trust is a tax-savings entity "into which just enough of a
decedent's estate passes, so that the estate can take advantage of the
unified credit against federal estate taxes." Black's Law Dictionary 1818
(11th ed. 2019). A bypass trust allows trust beneficiaries, usually the
settlors' children, to obtain the property of the first spouse to die, although
the surviving spouse is given a life interest in that property. Id. "Upon
the last spouse's death, all the trust property passes to the trust
beneficiaries outside the estate-tax regime." Id.
3
1190951, 1190952
After Lem's death in 2015, the siblings, who serve as cotrustees of
each of the trusts, disagreed about the effects of certain provisions in the
trust documents. Lenn specifically questioned the validity of certain
changes made by Lem when he restated the terms of the Marital Trust in
April 2013, as well as the fact that rents paid by tenants at Victorian
Village were being collected and treated as trust assets instead of being
remitted to her. In November 2018, Lenn sued her siblings and the
Family Trust in the St. Clair Circuit Court seeking a judgment declaring
their rights under the trust documents and determining the ownership
interests of the siblings in certain trust assets.
The trial court ordered the siblings to mediate their dispute. It
initially appeared that the mediation was successful because, on
November 21, 2019, all four siblings executed a settlement agreement.
That agreement stated that its terms were to remain confidential, but it
generally provided that, "[w]ithin 30 days," a cash payment and all rights
to Victorian Village would be transferred to Lenn. It also required the
parties to execute releases waiving any claims they had against each
other.
4
1190951, 1190952
For reasons that are not entirely clear, the parties did not satisfy
their respective obligations within the 30-day period set out in the
settlement agreement. Charles, Loggins, and Breazeale then moved the
trial court to declare the settlement agreement void because, they alleged,
Lenn had violated its confidentiality provision and refused to execute the
required releases. On February 12, 2020, the trial court entered an order
holding that the settlement agreement was due to be enforced and
directing the parties, within the next 30 days, "to perform each and every
act and to execute any and all documents necessary or expedient to
evidence and consummate the mediation settlement agreement as
heretofore agreed by the parties."
On March 12, 2020, Lenn filed notice stating that she had executed
all the documents required by the settlement agreement and alleging that
Charles and Loggins were refusing to do the same. That same day,
Charles and Loggins -- who had dismissed their previous legal counsel and
retained attorney Jerry M. Blevins to represent them -- filed a motion
stating that they understood the trial court's February 12 order "to be a
final order subject to Rule 59, Ala. R. Civ. P.," and asking the trial court
5
1190951, 1190952
to alter, amend, or vacate that order in accordance with Rule 59.
Breazeale -- still represented by the same counsel who had represented all
three defendant siblings and the Family Trust during the mediation --
filed a response stating that she was no longer challenging the settlement
agreement and that she had executed all the documents the agreement
required.
On April 20, 2020, the trial court denied Charles and Loggins's
motion and again ordered the parties to perform their obligations under
the settlement agreement. Two days later, Blevins filed a notice of
appearance purporting to represent the Family Trust. Lenn and
Breazeale then filed separate responses denying that he represented the
Family Trust; Breazeale further alleged that her attorneys already
represented the Family Trust and that their representation had never
been terminated.
On May 6, 2020, Blevins filed a notice of appeal challenging the trial
court's February 12 order directing the parties to comply with the
settlement agreement; that notice listed the Family Trust as an appellant
along with Charles and Loggins. The next day, Blevins filed a motion
6
1190951, 1190952
with the trial court asserting that it had lost jurisdiction to conduct
further proceedings in the case -- including the authority to rule on
whether he properly represented the Family Trust -- because of the
pending appeal. At a hearing conducted later that day to clarify its
jurisdiction, the trial court identified another jurisdictional issue --
whether its February 12 order directing the parties to comply with the
settlement agreement was a final judgment that could support an appeal.
In a written order, the trial court concluded that it was. But, the
court explained, even if the order was instead an interlocutory order
granting injunctive relief, it was still appealable. See Rule 4(a)(1)(A), Ala.
R. App. P. (authorizing the appeal of "any interlocutory order granting,
continuing, modifying, refusing, or dissolving an injunction"). The court
further concluded that, based on the pending appeal, it no longer had
jurisdiction to decide which attorneys were representing the Family Trust.
Two weeks later, Lenn served a process of garnishment on Regions
Bank. Consistent with the discussion at the May 7 hearing, Lenn alleged
that a final judgment had been entered in her favor on February 12, and
that Regions Bank was holding assets in an account belonging to the
7
1190951, 1190952
Marital Trust that she was entitled to recover to satisfy that judgment.
Regions Bank filed an answer stating that it would hold the sum claimed
by Lenn "until the court orders release or payment or until [the] funds are
remitted per statute." Blevins -- purporting to represent the Marital
Trust as well as Charles, Loggins, and the Family Trust -- then moved the
trial court to quash the garnishment proceedings. The trial court denied
that motion, and Blevins filed another notice of appeal, listing Charles,
Loggins, the Family Trust, and the Marital Trust as appellants and
seeking appellate review of that order.2
Appeal no. 1190952
Before considering the issue that Charles, Loggins, and the Family
Trust raise in this appeal -- whether the trial court's February 12 order
enforcing the settlement agreement should be reversed because of Lenn's
alleged breach of that agreement -- we must address whether we have
2Whether Blevins is properly representing the Family Trust and the
Marital Trust is an issue that has not been decided by the trial court. We
express no opinion on that issue, but, because Blevins purported to file the
notices of appeal on behalf of those entities, we treat them as appellants
in this opinion.
8
1190951, 1190952
jurisdiction to do so. See Nettles v. Rumberger, Kirk, & Caldwell, P.C.,
276 So. 3d 663, 666 (Ala. 2018) (explaining that jurisdictional matters are
of such importance that an appellate court may take notice of them even
when they have not been raised by the parties). A review of the
procedural history of the case reveals that we lack jurisdiction.
At the hearing to consider whether Blevins was properly
representing the Family Trust, the trial court discussed whether its
February 12 order was a final judgment. The court ultimately held that
it was but concluded that the order was appealable in any event based on
this Court's decision in Kappa Sigma Fraternity v. Price-Williams, 40 So.
3d 683 (Ala. 2009) . In that case, a plaintiff who had been assaulted at a
fraternity party settled his lawsuit with a national fraternity and its local
chapter, but there was later disagreement about whether that settlement
encompassed his claims against the individuals who had assaulted him.
40 So. 3d at 687. The trial court in that case granted the plaintiff's motion
to enforce the settlement agreement in accordance with his interpretation,
directing him "to execute a release compliant with the court's findings and
order[ing] the chapter to 'tender the settlement proceeds to [the plaintiff's]
9
1190951, 1190952
counsel.' " Id. at 689. The chapter did not comply with the trial court's
order and instead filed an appeal three days later. Id.
The plaintiff moved to dismiss the appeal as being from a nonfinal
judgment. In addressing that motion, this Court discussed the nature of
the order being appealed and agreed that it was an interlocutory order
granting injunctive relief as opposed to a final judgment. Id. at 690
("Because the ... order commands the chapter to take action, we conclude
that it is injunctive in nature."). But, the Court explained, an appeal can
be taken from an interlocutory order granting an injunction. See Rule
4(a)(1)(A) (authorizing a party to file a notice of appeal "within 14 days (2
weeks) of the date of the entry of ... any interlocutory order granting,
continuing, modifying, refusing, or dissolving an injunction"). The Court
therefore denied the plaintiff's motion to dismiss the chapter's appeal --
which had been filed just three days after the entry of the order enforcing
the settlement agreement -- and proceeded to consider the merits of the
case. Kappa Sigma, 40 So. 3d at 689.
Based on Kappa Sigma, it is clear that the trial court in this case
erred to the extent it held that its February 12 order was a final
10
1190951, 1190952
judgment. That order was injunctive in nature -- because it commanded
the parties to take specific action -- but it was not a final judgment.3 See
Dawkins v. Walker, 794 So. 2d 333, 335 (Ala. 2001) ("An injunction is
defined as '[a] court order commanding or preventing an action.' Black's
Law Dictionary 788 (7th ed. 1999)."). The trial court nevertheless
correctly noted that the February 12 order was appealable under Rule
4(a)(1)(A). Under that rule, any such appeal must be filed "within 14 days
(2 weeks) of the date of the entry of the order or judgment appealed from."
Here, the order granting injunctive relief was entered on February 12, but
no notice of appeal was filed until May 6, well outside the 14-day period
allowed by Rule 4(a)(1)(A).4 Because the notice of appeal was untimely,
3This is not to imply that an injunctive order can never constitute a
final judgment. For example, in Consolidated Electrical Contractors &
Engineers, Inc. v. Center Stage/Country Crossing Project, LLC, 175 So. 3d
642, 649 (Ala. Civ. App. 2015), the Court of Civil Appeals properly held
that a trial court's order dissolving an injunction was a final judgment
subject to the general 42-day time period for filing an appeal. But, unlike
the case now before us, the complaint that initiated that action sought
only injunctive relief and did not assert any underlying claims. Thus, that
court explained, the injunctive order "adjudicated the only claim asserted
in the action." Id.
4We recognize that Charles and Loggins purported to file a Rule 59
postjudgment motion challenging the trial court's February 12 order on
11
1190951, 1190952
we must dismiss the appeal. Beatty v. Carmichael, 293 So. 3d 874, 877
(Ala. 2019); see also Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be
dismissed if the notice of appeal was not timely filed to invoke the
jurisdiction of the appellate court.").
Appeal no. 1190951
Charles, Loggins, the Family Trust, and the Marital Trust argue in
this appeal that the garnishment proceedings should have been quashed.
We must first address our jurisdiction to consider their argument.
Nettles, 276 So. 3d at 666.
March 12. Under Rule 4(a)(3), Ala. R. App. P., a postjudgment motion
filed under Rule 59 will toll the time for filing a notice of appeal. But one
cannot properly file a Rule 59 "postjudgment" motion directed to an
interlocutory order that is not a final "judgment." See Momar, Inc. v.
Schneider, 823 So. 2d 701, 706 (Ala. Civ. App. 2001) (holding that a
purported Rule 59 motion did not operate to extend the time for taking an
appeal under Rule 4(a)(1)(A)). This Court does not appear to have
previously addressed this issue, but we agree with the substance of the
Court of Civil Appeals' holding in Momar. It would be inconsistent with
our caselaw emphasizing the necessity of a timely filed notice of appeal to
permit a party to resurrect a right to appeal by filing a motion to alter,
amend, or vacate two weeks after the period for filing an appeal had
already expired.
12
1190951, 1190952
With regard to garnishment proceedings, § 6-6-464, Ala. Code 1975,
provides that "[a]n appeal lies to the supreme court or the court of civil
appeals, as the case may be, at the instance of the plaintiff, the defendant,
the garnishee, or the contestant, or claimant." The caselaw interpreting
§ 6-6-464 makes clear, however, that such an appeal will lie only when
there has been a final judgment. In Miller Construction, LLC v. DB
Electric, [Ms. 2190467, Jan. 15, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021),
the Court of Civil Appeals considered an appeal with a factual and
procedural history substantially similar to this appeal and concluded that
the appeal was premature. In that case, the garnishers commenced
garnishment proceedings against the defendants, which then moved the
trial court to quash those proceedings. The trial court denied the motion
to quash but did not take any other action. After the defendants filed
their notice of appeal challenging the trial court's denial of their motion
to quash, the Court of Civil Appeals dismissed their appeal, explaining
that "[t]he order denying the motion to quash ... addressed only the
disposition of that motion but did not direct the garnishee ... to disburse
any funds to [the garnishers]. Thus, the ... order denying the motion to
13
1190951, 1190952
quash is not a final judgment and is not capable of supporting this
appeal." Id. See also Robbins v. State ex rel. Priddy, 109 So. 3d 1128,
1132 (Ala. Civ. App. 2012) (explaining that an order denying a motion to
quash garnishment proceedings that does not otherwise adjudicate the
rights of the parties is not a final judgment capable of supporting an
appeal).
Like in Miller Construction, the trial court here denied a motion to
quash garnishment proceedings, but it did not decide what should be done
with the funds that were the subject of the garnishment. The garnishee
Regions Bank has stated that it will hold the funds Lenn seeks to garnish
"until the court orders release or payment," and it appears from the record
before us that the trial court has yet to order either release or payment.
Until such time as the trial court directs Regions Bank to take one of
those actions, there is not a final judgment that will support an appeal.
Miller Construction, ___ So. 3d at ___, Robbins, 109 So. 3d at 1132.
Accordingly, this appeal must be dismissed.
14
1190951, 1190952
Conclusion
The trial court's February 12 order directing the parties to comply
with the terms of the settlement agreement was an interlocutory order
that was injunctive in nature. That order was appealable under Rule
4(a)(1)(A), but any such appeal had to be filed within 14 days of the order's
entry. Charles, Loggins, and the Family Trust filed their notice of appeal
almost three months after the February 12 order was entered -- which
means appeal no. 1190952 must be dismissed as untimely.
Conversely, the notice of appeal filed by Charles, Loggins, the
Family Trust, and the Marital Trust in appeal no. 1190951 was filed too
soon -- no final judgment has been entered in the garnishment
proceedings. Because the trial court's order denying their motion to quash
was not a final judgment, appeal no. 1190951 must be dismissed as
premature.
1190951 -- APPEAL DISMISSED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Stewart, JJ., concur.
1190952 -- APPEAL DISMISSED.
15
1190951, 1190952
Wise, Sellers, and Stewart, JJ., concur.
Mendheim, J., concurs specially.
Parker, C.J., and Bolin, Shaw, and Bryan, JJ., dissent.
16
1190951, 1190952
MENDHEIM, Justice (concurring specially in appeal no. 1190952).
In appeal no. 1190952, it appears to me that the main opinion
correctly applies the analysis in Kappa Sigma Fraternity v.
Price-Williams, 40 So. 3d 683 (Ala. 2009), pertaining to the settlement
order, and no party has asked us to overrule Kappa Sigma.5 However, I
write specially to inquire about what it is the trial court would need to do
in order to render its February 12, 2020, order a final judgment. The trial
court specifically stated that the settlement is enforceable. The Kappa
Sigma Court's only basis for determining after the fact that the settlement
order in that case was an "injunction" was that the "order commanded
[one settlement party] to take specific action -- to pay the settlement
proceeds to [the other settlement party] by March 9, 2009." 40 So. 3d at
690. But if that is the only required characteristic of an injunction, then
many trial-court orders could be considered "injunctions" after the fact
5In Bates v. Stewart, 99 So. 3d 837, 851 (Ala. 2012), this Court
explained: "Because the trial court's order in Kappa Sigma commanded
the parties to take specific action, this Court held that it had jurisdiction
to consider the appeal, even though the order appealed from was not a
final judgment." (Emphasis added.)
17
1190951, 1190952
because trial courts routinely "order" parties to do or not do things, but we
ordinarily do not view those orders as injunctions. As Justice Murdock
observed in his special writing in Kappa Sigma, if "such an order is
properly viewed as an injunction, the order could be procured only upon
proof of the four elements necessary for such equitable relief." Kappa
Sigma, 40 So. 3d at 696 (Murdock, J., concurring in the rationale in part
and concurring in the result). Specifically, a permanent injunction
requires four elements:
" '[A] plaintiff must demonstrate [1] success on the merits, [2] a
substantial threat of irreparable injury if the injunction is not
granted, [3] that the threatened injury to the plaintiff
outweighs the harm the injunction may cause the defendant,
and [4] that granting the injunction will not disserve the public
interest.' "
Classroomdirect.com, LLC v. Draphix, LLC, 992 So. 2d 692, 702 (Ala.
2008) (quoting TFT, Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242 (Ala.
1999)). But the reality is that in both Kappa Sigma and in this case the
18
1190951, 1190952
elements of a permanent injunction were not satisfied; indeed, they were
not even contemplated by the parties or by the trial court.6
In a case in which this Court carefully explained why an order a
circuit court had entered based on an arbitration panel's decision was a
final judgment, the Court stated that the order was
"one that adjudicates the rights and responsibilities of the
parties. Accordingly, it is enforceable as a final judgment. In
essence, it is a final judgment that requires certain acts of both
parties. As such, it contemplates further enforcement, and
6I also note that the February 12, 2020, order, in stating that "the
Mediation Settlement Agreement is due to be enforced" and ordering the
parties "to perform each and every act and to execute any and all
documents necessary or expedient to evidence and consummate the
mediation settlement agreement as heretofore agreed by the parties,"
relied upon the terms of the settlement agreement without incorporating
that document into the order. However, Rule 65(d)(2), Ala. R. Civ. P.,
requires that "[e]very order granting an injunction shall set forth the
reasons for its issuance; shall be specific in terms; [and] shall describe in
reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained ...." (Emphasis added.)
Cf. Supreme Fuels Trading FZE v. Sargeant, 689 F.3d 1244, 1247 (11th
Cir. 2012) (Pryor, J., concurring) (reasoning that, because a district court
"did not intend to issue an injunction when it entered the order enforcing
the settlement agreement because the district court neither stated that it
was issuing an injunction nor complied with Rule 65(d)," Fed. R. Civ. P.,
the "order enforcing the settlement agreement is not an order of specific
performance that is appealable as an injunction ....").
19
1190951, 1190952
perhaps interpretative acts, by the circuit court. This,
however, does not make it a nonfinal judgment.5
"_________________________
"5'A final judgment is an order "that conclusively
determines the issues before the court and ascertains and
declares the rights of the parties involved." Bean v. Craig, 557
So. 2d 1249, 1253 (Ala. 1990).' Lunceford v. Monumental Life
Ins. Co., 641 So. 2d 244, 246 (Ala. 1994). The determination
whether a judgment is final does not depend on the title of the
order; 'rather, the test of a judgment's finality is whether it
sufficiently ascertains and declares the rights of the parties.'
Ex parte DCH Reg'l Med. Ctr., 571 So. 2d 1162, 1164 (Ala. Civ.
App. 1990) (emphasis added) (citing McCulloch v. Roberts, 290
Ala. 303, 276 So. 2d 425 (1973)). In McCulloch, the Court
explained as follows:
" 'In Ex parte Elyton Land Co., 104 Ala. 88,
91, 15 So. 939 (1893), this court held that:
" ' "... The test of the finality of a
decree to support an appeal is not
whether the cause remains in fieri, in
some respects, in the court of chancery,
awaiting further proceedings necessary
to entitle the parties to the full measure
of the rights it has been declared they
have; but whether the decree which has
been rendered, ascertains and declares
these rights -- if these are ascertained
and adjudged, the decree is final, and
will support an appeal...." '
"290 Ala. at 305, 276 So. 2d at 426 (emphasis added)."
20
1190951, 1190952
Southeast Constr., L.L.C. v. WAR Constr., Inc., 110 So. 3d 371, 376-77
(Ala. 2012) (first emphasis added). See also Helms v. Helms' Kennels,
Inc., 646 So. 2d 1343, 1347 (Ala. 1994) (noting that "a trial court does have
residual jurisdiction or authority to take certain actions necessary to
enforce or interpret a final judgment").
It seems to me that the issue presented in Kappa Sigma and in
appeal no. 1190952 is one of enforcement, not finality of a judgment, and
I do not believe that an order that does nothing more than approve a
settlement and require the parties to fulfill it should be viewed as an
interlocutory order, much less an "injunction." Cf. Saber v.
FinanceAmerica Credit Corp., 843 F.2d 697, 702 (3d Cir. 1988) (explaining
that "[a] settlement agreement is a contract, and an order enforcing a
contract is ordinarily described as an order for specific performance.
'Unlike an injunction, which can be employed procedurally to preserve
rights pending the outcome of the substantive litigation, the remedy of
specific performance is, generally speaking, dispositive of the substantive
rights of the parties.' United Bonding Ins. Co. v. Stein, 410 F.2d 483, 486
(3d Cir. 1969). The fact that a specific date for compliance is attached to
21
1190951, 1190952
an order for specific performance of the settlement agreement does not by
itself transform the enforcement order into a mandatory injunction.");
United States v. American Inst. of Real Estate Appraisers of Nat'l Ass'n
of Realtors, 590 F.2d 242, 244 (7th Cir. 1978) (finding "no persuasive
authority" for "treating an order approving a settlement as an
injunction"). In sum, it seems to me that the main opinion correctly
applies Kappa Sigma as binding precedent in this case, but I question the
logic of the holding in that case.
22
1190951, 1190952
PARKER, Chief Justice (dissenting in appeal no. 1190952).
I dissent from the main opinion as to appeal no. 1190952 and concur
with Justice Shaw's special writing except as to note 7.
23
1190951, 1190952
SHAW, Justice (dissenting in appeal no. 1190952).
I believe that appeal no. 1190952 was timely; therefore, I
respectfully dissent to dismissing that appeal.
The 14-day period of Rule 4(a)(1)(A), Ala. R. App. P., for filing a
notice of appeal, by its terms, applies to only interlocutory injunctions: "In
appeals from the following orders or judgments, the notice of appeal shall
be filed within 14 days (two weeks) of the date of the entry of the order or
judgment appealed from: (A) any interlocutory order granting ... an
injunction ...." (Emphasis added.) However, when an injunction is a final
judgment and not interlocutory, the 42-day period provided in Rule 4(a)(1)
instead applies. Jefferson Cnty. Comm'n v. ECO Pres. Servs., L.L.C., 788
So. 2d 121, 125-26 (Ala. 2000) ("[T]he 14-day limit prescribed by Rule
4(a)(1)(A), Ala. R. App. P., applies only to interlocutory orders granting an
injunction .... [T]he injunction order is not an 'interlocutory order' and is
appealable without regard to the provisions of Rule 4(a)(1)(A). We
conclude that the 42-day limit, rather than the 14-day limit, applies ....").
See also Consolidated Elec. Contractors & Eng'rs, Inc. v. Center
Stage/Country Crossing Project, LLC, 175 So. 3d 642, 649 (Ala. Civ. App.
24
1190951, 1190952
2015) (holding that an order dissolving an injunction "was a final,
appealable judgment" from which a party had 42 days to appeal).
The February 12, 2020, order at issue in appeal no. 1190952 resolved
a challenge to a settlement agreement and enforced the agreement
against the parties. Under the authority of Kappa Sigma Fraternity v.
Price-Williams, 40 So. 3d 683 (Ala. 2009), the order is in the nature of an
injunction. The settlement agreement itself resolved all claims by all
parties in the underlying action. Often, parties that settle an action will
have the trial court enter the settlement agreement as a judgment, and
it appears that the February 12, 2020, order, in substance, does so.
Because there was nothing more for the trial court to do in this action to
resolve the claims of the parties, the injunction was final, and the 42-day
period of Rule 4(a)(1), and not the 14-day period of Rule 4(a)(1)(A), applies
to the judgment. Bekken v. Greystone Residential Ass'n, 227 So. 3d 1201,
1213 (Ala. Civ. App. 2017) (holding that an injunction that "did not
require further action by the trial court" was "a final judgment issuing a
permanent injunction rather than ... an interlocutory order issuing a
25
1190951, 1190952
preliminary injunction," and thus the 42-day period under Rule 4(a)(1)
applied).
The Court in Kappa Sigma, supra, applied Rule 4(a)(1)(A) to the
appeal in that case, but there was no precise holding on whether the
injunction in that case was interlocutory because it was irrelevant: the
Court's decision addressed whether an order enforcing a settlement was
considered an injunction, and the appeal from it, filed within three days,
was timely under either Rule 4(a)(1) or (a)(1)(A). In any event, Kappa
Sigma did not hold that all injunction rulings, interlocutory or not, were
controlled by Rule 4(a)(1)(A), which would have been contrary to the
language of the rule.
This Court, on its own motion, must recognize the lack of appellate
jurisdiction. McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017) ("[T]he
absence of subject-matter jurisdiction cannot be waived, and it is the duty
of an appellate court to notice the absence of subject-matter jurisdiction
ex mero motu.").7 The timely Rule 59(e), Ala. R. Civ. P., motion to alter,
7This Court's decision in Nettles v. Rumberger, Kirk & Caldwell,
P.C., 276 So. 3d 663 (Ala. 2018), erroneously applied this rule to provide
26
1190951, 1190952
amend, or vacate the February 12, 2020, order filed in this case suspended
the time to file the notice of appeal. See Rule 4(a)(3), Ala. R. App. P. The
notice was ultimately filed within 42 days of the trial court's timely denial
of that motion; therefore, I believe that appeal no. 1190952 is timely, and
I respectfully dissent to its dismissal.
Bolin and Bryan, JJ., concur.
that this Court could, on its own motion, overrule unchallenged caselaw
and hold that appellate jurisdiction existed. See Nettles, 276 So. 3d at
672-73 (Shaw, J., dissenting).
27 | June 30, 2021 |
2a1543a3-8610-4999-ab7f-a77f176312d0 | Tara Leigh Banks Rich v. J. Roy Banks, LLC, Jon Banks, Scott Banks, Randy Banks, Jessica Banks Baker, and Rafe Banks | N/A | 1191069 | Alabama | Alabama Supreme Court | Rel: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1191069
Tara Leigh Banks Rich v. J. Roy Banks, LLC, Jon Banks, Scott Banks,
Randy Banks, Jessica Banks Baker, and Rafe Banks (Appeal from St.
Clair Circuit Court: CV-18-900124).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | June 11, 2021 |
a473a00d-5b3f-46b4-8963-f7db2c0ca379 | Ex parte Frederick Listz Newell. | N/A | 1200356 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 23, 2021
1200356
Ex parte Frederick Listz Newell. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Frederick Listz Newell v.
State of Alabama) (Jefferson Circuit Court: CC18-3778; Criminal Appeals :
CR-19-0480).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 23, 2021:
Writ Denied. No Opinion. Bryan, J. -
Bolin, Shaw, Wise, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 23rd day of April, 2021.
Clerk, Supreme Court of Alabama | April 23, 2021 |
331cbb1f-9748-4bdb-8925-d2ffad34ef8b | William K. Diver, as personal representative of the Estate of Eddie Jackson, Jr., deceased v. First Avenue Recycling Corporation | N/A | 1190149 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190149
William K. Diver, as personal representative of the Estate of Eddie
Jackson, Jr., deceased v. First Avenue Recycling Corporation (Appeal
from Jefferson Circuit Court, Bessemer Division: CV-17-900800).
SHAW, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur. | April 16, 2021 |
b72401dc-67a9-4efc-bd95-ed32c1e5ff7d | Chris Jockisch and Michelle Jockisch v. Southeastern Exterminating, Inc., and Michael J. Hollis | N/A | 1190642 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190642
Chris Jockisch and Michelle Jockisch v. Southeastern Exterminating, Inc.,
and Michael J. Hollis (Appeal from Mobile Circuit Court: CV-17-900861).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | April 16, 2021 |
ef5658f7-4c2f-45e6-9c73-30ccff1797e9 | Ex parte Antoine Gordan Conley. | N/A | 1200277 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200277
Ex parte Antoine Gordan Conley. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Antoine Gordan Conley
V. State of Alabama) (Madison Circuit Court: CC-14-4220.70; Criminal
Appeals :
CR-19-0570).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
3d59c2ea-3925-4471-ace9-4c0b204eadcd | Ex parte Matthew Spain. | N/A | 1200320 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200320
Ex parte Matthew Spain. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Matthew Spain v. State of
Alabama) (Shelby Circuit Court: CC-15-454.60; Criminal Appeals :
CR-19-0708).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Parker, C.J. -
Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
da53c565-f6fc-46d7-b571-1f42af3584b1 | 623 Partners, LLC v. JBV Enterprises, LLC, et al. | N/A | 1200035 | Alabama | Alabama Supreme Court | Rel: June 11, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1200035
623 Partners, LLC v. JBV Enterprises, LLC, et al. (Appeal from Baldwin
Circuit Court: CV-09-901059).
MITCHELL, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur. | June 11, 2021 |
81ef8197-d2b7-4f2b-8a71-49af337bfd39 | Ex parte Matthew Sherman Phillips. | N/A | 1200460 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200460
Ex parte Matthew Sherman Phillips. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Matthew
Sherman Phillips v. State of Alabama) (Ashville Circuit Court: CC-07-76.63;
Criminal Appeals :
CR-19-0404).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
dade2310-905f-4e33-b7d7-ea8d21523123 | Laura Tucker, individually; Brittany Tucker, individually; Keegan Tucker, a minor, by and through his mother and next friend, Laura Tucker, and all others similarly situated v. The DCH Healthcare Authority | N/A | 1190632 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190632
Laura Tucker, individually; Brittany Tucker, individually; Keegan Tucker,
a minor, by and through his mother and next friend, Laura Tucker, and
all others similarly situated v. The DCH Healthcare Authority (Appeal
from Tuscaloosa Circuit Court: CV-16-900254).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | April 16, 2021 |
396c1fd1-ac83-4a88-a259-cc5a9fc08f9b | Ex parte Walter McGowan. | N/A | 1190090 | Alabama | Alabama Supreme Court | Rel: April 30, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
_________________________
1190090
_________________________
Ex parte Walter McGowan
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Walter McGowan
v.
State of Alabama)
(Jefferson Circuit Court, CC-16-3124, CC-16-3125, CC-16-3126,
and CC-16-3127; Court of Criminal Appeals, CR-18-0173)
STEWART, Justice.
1190090
This Court granted certiorari review to determine whether the Court
of Criminal Appeals erred in affirming the order of the Jefferson Circuit
Court ("the trial court") revoking Walter McGowan's probation. We
conclude that the trial court was without jurisdiction to conduct probation-
revocation proceedings and to enter the probation-revocation order.
Therefore, we reverse the Court of Criminal Appeals' judgment and
remand the cause.
Facts and Procedural History
McGowan, a habitual felony offender, pleaded guilty in the trial
court to first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975;
first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975; second-
degree assault, a violation of § 13A-6-21, Ala. Code 1975; obstruction of
justice, a violation of § 13A-8-194, Ala. Code 1975; and third-degree
escape, a violation of § 13A-10-33, Ala. Code 1975. Adhering to the
voluntary sentencing guidelines, the trial court sentenced McGowan to 15
years' imprisonment for each conviction, but it split the sentences,
ordering McGowan to serve 5 years in prison followed by 2 years'
supervised probation for each conviction. The trial court also ordered the
2
1190090
sentences to run concurrently. Subsequently, the State filed a "Motion to
Revoke Split Sentence," in which it specifically requested that McGowan's
probation be revoked, based on the fact that McGowan had been charged
with new felony offenses. The trial court held a revocation hearing and
then entered an order revoking McGowan's probation. McGowan appealed
to the Court of Criminal Appeals.
Before the Court of Criminal Appeals, McGowan asserted that his
sentences -- 15 years, split to serve 5 years in prison followed by 2 years'
probation -- were illegal sentences because they did not comply with § 15-
18-8(a)(1) or (b), Ala. Code 1975. McGowan argued that, because his split
sentences were unauthorized under § 15-18-8, commonly referred to as the
Split-Sentence Act, the trial court had lacked subject-matter jurisdiction
to conduct a revocation hearing and to enter an order revoking his
probation. Citing Enfinger v. State, 123 So. 3d 535 (Ala. Crim. App. 2012),
in which the Court of Criminal Appeals concluded that resentencing the
defendant was the sole remedy to cure an unauthorized split sentence,
McGowan argued that, because the trial court had lacked jurisdiction, the
probation-revocation order was due to be vacated.
3
1190090
The Court of Criminal Appeals held that the split sentences were
unauthorized under § 15-18-8; however, it declined to follow Enfinger,
concluding that the trial court's probation-revocation order imposing the
original 15-year sentences had remedied the illegality of the split
sentences. The Court of Criminal Appeals explicitly overruled Enfinger,
concluding that the probation-revocation order had remedied the illegal
manner in which McGowan's sentences were being executed, thus
rendering the illegality of the split sentences moot. McGowan v. State,
[Ms. CR-18-0173, July 12, 2019] ___ So. 3d ____ (Ala. Crim. App. 2019).
Judge McCool disagreed with the majority's conclusion and issued a
dissenting opinion stating that Enfinger is "a well-reasoned decision" and
that the doctrine of stare decisis should compel the court from overruling
Enfinger. McGowan, ___ So. 3d at ____ (McCool, J., dissenting). The Court
of Criminal Appeals overruled McGowan's application for rehearing. This
Court granted McGowan's petition for the writ of certiorari to review the
Court of Criminal Appeals' decision.
Standard of Review
4
1190090
" ' "This Court reviews pure questions of law in criminal cases de
novo." ' " Ex parte Knox, 201 So. 3d 1213, 1216 (Ala. 2015)(quoting Ex
parte Morrow, 915 So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte
Key, 890 So. 2d 1056, 1059 (Ala. 2003)).
Discussion
I.
At issue in this case is whether the trial court's revocation of
McGowan's probation cures the jurisdictional defect arising from the
imposition of split sentences that are not authorized under § 15-18-8. The
Court of Criminal Appeals correctly concluded that the split sentences
imposed by the trial court were not authorized by § 15-18-8. Section
15-18-8 provides, in relevant part:
"(a) When a defendant is convicted of an offense, other
than a sex offense involving a child as defined in Section
15-20A-4 [(26), Ala. Code 1975], that constitutes a Class A or
Class B felony and receives a sentence of 20 years or less in
any court having jurisdiction to try offenses against the State
of Alabama and the judge presiding over the case is satisfied
that the ends of justice and the best interests of the public as
well as the defendant will be served thereby, he or she may
order:
5
1190090
"(1) That a defendant convicted of a Class A
or Class B felony be confined in a prison, jail-type
institution, or treatment institution for a period not
exceeding three years in cases where the imposed
sentence is not more than 15 years, and that the
execution of the remainder of the sentence be
suspended notwithstanding any provision of the
law to the contrary and that the defendant be
placed on probation for such period and upon such
terms as the court deems best.
"....
"(b) Unless a defendant is sentenced to probation, drug
court, or a pretrial diversion program, when a defendant is
convicted of an offense that constitutes a Class C or D felony
offense and receives a sentence of not more than 15 years, the
judge presiding over the case shall order that the convicted
defendant be confined in a prison, jail-type institution,
treatment institution, or community corrections program for
a Class C felony offense ... for a period not exceeding two
years in cases where the imposed sentence is not more than
15 years, and that the execution of the remainder of the
sentence be suspended notwithstanding any provision of the
law to the contrary and that the defendant be placed on
probation for a period not exceeding three years and upon
such terms as the court deems best. ..."1
1McGowan committed the robbery, assault, obstruction-of-justice,
and escape offenses in May 2016, and, as noted by the Court of Criminal
Appeals: "McGowan committed the burglary offense in 2015. Although
the timing of McGowan's burglary offense made his sentencing [for that
offense] subject to a prior version of § 15-18-8, the portion of that former
version of § 15-18-8(a)(1) relevant to his sentencing for the burglary
6
1190090
Although the 15-year sentences imposed on McGowan were within the
authorized range for the offenses to which McGowan pleaded guilty, the
trial court had no authority to impose split sentences under § 15-18-8(a)(1)
that included a term of confinement in prison for a period exceeding three
years for his burglary and robbery convictions and had no authority to
impose split sentences under § 15-18-8(b) that included a term of
confinement in prison for a period exceeding two years for his assault,
obstruction-of-justice, and escape convictions. Accordingly, the trial court
improperly imposed split sentences of five years' imprisonment followed
by two years' probation.
II.
A circuit court derives its jurisdiction from the Alabama Constitution
of 1901 and the Alabama Code. Ex parte Seymour, 946 So. 2d 536, 538
(Ala. 2006). Alabama courts have recognized that "[m]atters concerning
offense is substantially similar to the version quoted herein." McGowan,
___ So. 3d at ____ n.2. Section 15-18-8 has been amended several more
times since 2016; however, the relevant portions of the statute remain
unchanged, except that, in subsection (a), the version in effect in 2016
specifically cited § 15-20A-4(26), rather than just § 15-20A-4.
7
1190090
unauthorized sentences are jurisdictional." Hunt v. State, 659 So. 2d 998,
999 (Ala. Crim. App. 1994). " '[A] trial court does not have
[subject-matter] jurisdiction to impose a sentence not provided for by
statute.' " Ex parte Butler, 972 So. 2d 821, 825 (Ala. 2007)(quoting Hollis
v. State, 845 So. 2d 5, 6 (Ala. Crim. App. 2002)). This Court has routinely
held that the imposition of a sentence in a criminal case that is not
authorized by statute creates a jurisdictional defect that is nonwaivable
and that can be raised at any time. See Ex parte Batey, 958 So. 2d 339,
341 (Ala. 2006)("A challenge to an illegal sentence ... is a jurisdictional
matter that can be raised at any time."). See also Ex parte Casey, 852 So.
2d 175 (Ala. 2002)(concluding that the convictions for which a defendant
received a full pardon were not valid for use as a sentencing enhancement
and, thus, that a jurisdictional issue existed regarding the legality of the
defendant's sentence, which had been enhanced based on the pardoned
convictions); Ex parte Brannon, 547 So. 2d 68, 68 (Ala. 1989) ("[W]hen a
sentence is clearly illegal or is clearly not authorized by statute, the
defendant does not need to object at the trial level in order to preserve
that issue for appellate review."). Although the legality of the underlying
8
1190090
15-year sentences in this case are not in question, the trial court's
imposition of the split sentences, which were unauthorized by § 15-18-8,
implicates the trial court's jurisdiction not only to impose those sentences,
but also to hold subsequent revocation proceedings and to revoke
McGowan's probation.
The Court of Criminal Appeals, however, concluded that the
revocation of McGowan's probation and the imposition of the original 15-
year sentences had remedied the unauthorized portion of the sentences,
thus curing any jurisdictional defect. The probation-revocation order, the
Court of Criminal Appeals held, rendered moot any error in the trial
court's initial decision to split the sentences in a manner contrary to § 15-
18-8. In reaching that conclusion, the Court of Criminal Appeals
expressly overruled its decision in Enfinger v. State, 123 So. 3d 535 (Ala.
Crim. App. 2012), and the line of cases flowing therefrom,2 in which that
2See Scott v. State, 148 So. 3d 458, 462-63 (Ala. Crim. App. 2013);
Hicks v. State, 138 So. 3d 338 (Ala. Crim. App. 2013); Pardue v. State, 160
So. 3d 363 (Ala. Crim. App. 2013); Brown v. State, 142 So. 3d 1269 (Ala.
Crim. App. 2013); Adams v. State, 141 So. 3d 510 (Ala. Crim. App. 2013);
Holley v. State, 212 So. 3d 967 (Ala. Crim. App. 2014); Mewborn v. State,
170 So. 3d 709 (Ala. Crim. App. 2014); McNair v. State, 164 So. 3d 1179
9
1190090
court had concluded that the imposition of a split sentence not authorized
under § 15-18-8 divests a trial court of jurisdiction to conduct a revocation
hearing and to revoke a defendant's probation or split sentence. Enfinger,
123 So. 3d at 538.
In Enfinger, the defendant pleaded guilty to sexual abuse of a child
under the age of 12, a violation of § 13A-6-69.1, Ala. Code 1975. The
Baldwin Circuit Court sentenced the defendant to 20 years' imprisonment,
but it ordered that the defendant's sentence be split. Later, the circuit
court revoked the defendant's probation. On appeal of the probation-
revocation order, the Court of Criminal Appeals held that the circuit court
had lacked the authority to impose a split sentence or a term of probation
because the defendant had been convicted of a criminal sex offense
involving a child and § 15-18-8 specifically precludes imposition of a split
sentence for defendants convicted of such an offense. Enfinger, 123 So. 3d
at 537. In concluding that revocation of the defendant's probation did not
(Ala. Crim. App. 2014); and Belote v. State, 185 So. 3d 1154 (Ala. Crim.
App. 2015).
10
1190090
remedy the unauthorized portion of the sentence, the Court of Criminal
Appeals stated:
"[B]ecause the nature of Enfinger's guilty-plea conviction
exempts him from application of the Split-Sentence Act, the
circuit court had no authority to apply the Split-Sentence Act
to Enfinger and no authority to impose a term of probation on
Enfinger. See § 15-18-8(a) and (b), Ala. Code 1975. Because the
circuit court had no authority to split Enfinger's sentence or to
impose a term of probation, it likewise had no authority to
conduct a probation-revocation hearing and revoke Enfinger's
probation under § 15-18-8(c) [now § 15-18-8(g)], Ala. Code
1975, which provides, in part, that under the Split-Sentence
Act the circuit court 'may revoke or modify any condition of
probation or may change the period of probation.' Because the
circuit court had no authority to impose a term of probation or
to revoke probation, the circuit court's order revoking
Enfinger's probation is void."
Enfinger, 123 So. 3d at 538. The court in Enfinger thus concluded that the
proper method of remedying the unauthorized split sentence would be to
remand the case to the circuit court for that court to remove the split
portion of the sentence and to conduct another sentencing hearing to
reconsider the execution of the 20-year sentence.
In the present case, the Court of Criminal Appeals reexamined its
holding in Enfinger and determined that "the decision in Enfinger was an
unnecessary departure from this Court's previous position that the
11
1190090
removal of the illegal manner of execution of a sentence renders the
illegality moot." McGowan, ___ So. 3d at ____ (citing Kenney v. State, 949
So. 2d 192, 193 n.1 (Ala. Crim. App. 2006), and Williams v. State, 535 So.
2d 197, 198 (Ala. Crim. App. 1988)). That court concluded:
"In circumstances such as those presented in this case and in
Enfinger, the circuit court's authority to revoke the defendant's
probation or a split sentence is not affected by the illegal
manner of execution of the initial sentence. By revoking
McGowan's split sentences and removing the illegal splits, the
circuit court remedied the illegality of the manner in which
McGowan's sentences were being executed, and McGowan is
now properly serving legal 15-year sentences. Consequently,
the circuit court's error in splitting his sentences is moot."
McGowan, ___ So. 3d at ____.
As noted above, however, a sentence unauthorized by statute
exceeds the jurisdiction of the trial court and is void. See Ex parte Batey,
958 So. 2d at 342 (citing Rogers v. State, 728 So. 2d 690, 691 (Ala. Crim.
App. 1998)). Except for taking measures to cure a jurisdictional defect in
sentencing and to sentence the defendant in accordance with the law, a
trial court has no jurisdiction to act on an unauthorized sentence,
including conducting revocation proceedings and entering a revocation
order addressing the portion of the sentence that was unauthorized in the
12
1190090
first place. It matters not that a revocation order purports to remove an
unauthorized portion of a sentence; the trial court must first have subject-
matter jurisdiction to conduct the proceedings under Rule 27.6, Ala. R.
Crim. P., and to enter the order of revocation. Accordingly, we conclude
that the rationale in Enfinger was sound and that the Court of Criminal
Appeals was incorrect in rejecting it. McGowan's split sentences were
illegal, and the trial court, therefore, was without jurisdiction to revoke
McGowan's probation that had been imposed as a part of the unauthorized
sentences. The probation-revocation order, therefore, is void.
Contrary to the State's assertion to this Court, the procedure
employed in Enfinger and adopted by this Court now does not require the
doing of a futile act. Minshew v. State, 975 So. 2d 395, 398 (Ala. Crim.
App. 2007)(" 'The law does not require the doing of a futile thing.' "
(quoting Strickland v. State, 280 Ala. 34, 37, 189 So. 2d 774, 776 (1966))).
Rather, our decision today, in addition emphasizing the necessity of
adhering strictly to the express language of § 15-18-8, underscores the
importance of the very concept that provides our courts with the authority
to act -- subject-matter jurisdiction. Moreover, the court in Enfinger aptly
13
1190090
noted the impact that application of the doctrine of mootness would have
on the voluntariness of the defendant's plea:
"We recognize that the circuit court's revocation of
Enfinger's probation in this case appears to reach a result that
is no different than the result that was obtained in Simmons
[v. State, 879 So. 2d 1218 (Ala. Crim. App. 2003),] and Morris
[v. State, 876 So. 2d 1176 (Ala. Crim. App. 2003)] -- i.e., the
probation revocation in essence removed the unauthorized
split. Those cases, however, did not involve merely the removal
of an improper split. In each of those cases, the circuit court
was instructed to consider on remand whether the removal of
the split would affect the voluntariness of the defendant's
guilty plea. Further, the circuit court in each case was
instructed that, if the defendant moved to withdraw his guilty
plea, it should allow the defendant to do so. See Simmons,
supra; Morris, 876 So. 2d at 1178 ('Because the split sentence
was a term of the appellant's plea agreement, if the appellant
moves to withdraw his guilty plea, the circuit court should
grant the motion. See Austin v. State, 864 So. 2d 1115 (Ala.
Crim. App. 2003).') To hold that the circuit court can remedy
the imposition of an unauthorized split sentence by revoking
a defendant's probation, however, would prevent that
defendant from being able to move to withdraw his guilty plea
and thus would treat him differently than the defendants in
Simmons and Morris were treated -- i.e., after the circuit court
conducts a resentencing, the defendant would not have the
assistance of appointed counsel to move to withdraw his guilty
plea under Rule 14.4(e), Ala. R.Crim. P.; instead, an indigent
defendant would have to raise, pro se in a Rule 32[, Ala. R.
Crim. P.,] petition, the issue that the defendant's guilty plea
was involuntary."
Enfinger, 123 So. 3d at 538-39. As an additional concern, the court noted:
14
1190090
"[H]olding that a circuit court can remedy the imposition of an
improper split sentence by revoking a defendant's probation
could lead to an absurd result. For example, a defendant
serving a sentence that is improper under the Split-Sentence
Act could be charged with violating the terms and conditions
of his probation and the circuit court could thereafter revoke
that defendant's probation. On appeal, the defendant could
contend that the evidence was insufficient to support the
revocation of his probation, and if, after a review of the record,
this Court determined that the defendant is, in fact, correct,
we would be forced to hold that, although the evidence was
insufficient to support the revocation, the imposition of the
remainder of his sentence is correct because the circuit court
could not have imposed a split sentence. Such a result is
unsound and untenable."
Enfinger, 123 So. 3d at 539. We agree with the Enfinger court's analysis.
III.
The split sentences the trial court imposed on McGowan were
unauthorized under § 15-18-8. In addition to vacating the probation-
revocation order, the proper procedure at this juncture would be for the
trial court to " 'conduct another sentencing hearing and ... reconsider the
execution of [McGowan's 15]-year sentence[s]. Because the [15]-year
sentence[s] [were] valid, the circuit court may not change [them].' "
Enfinger, 123 So. 3d at 538 (quoting Austin v. State, 864 So. 2d 1115, 1118
15
1190090
(Ala. Crim. App. 2003), and Moore v. State, 871 So. 2d 106, 109-10 (Ala.
Crim. App. 2003)).
Conclusion
The judgment of the Court of Criminal Appeals is reversed, and this
case is remanded to that court for the entry of an order consistent with
this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bryan, Sellers, and Mitchell, JJ., concur.
Shaw, J., concurs specially.
Bolin, Wise, and Mendheim, JJ., dissent.
16
1190090
SHAW, Justice (concurring specially).
I concur in the main opinion. I write specially to note the following.
The petitioner, Walter McGowan, argues that the Court of Criminal
Appeals erred in overruling Enfinger v. State, 123 So. 3d 535 (Ala. Crim.
App. 2012). As the main opinion notes, under Enfinger, when a split
sentence is void, the trial court has no authority to conduct a
probation-revocation hearing. Revoking probation, which the trial court
explicitly purported to do in this case, does not moot the illegality of a
split sentence. Thus, the Court of Criminal Appeals erred in overruling
Enfinger.
I also believe that additional prudential concerns would support the
holding of Enfinger. Specifically, revoking the probation portion of a split
sentence will not, in all cases, moot the illegality of the split sentence and
or the need for a resentencing hearing regarding the proper execution of
the sentence. A probation revocation, which is purportedly what occurred
in this case, does not vacate or set aside an illegal split sentence. When
a split sentence is vacated, it is actually removed as part of the sentence.
Without an order vacating or setting aside his split sentences, McGowan's
17
1190090
sentencing order reflects that he received split sentences and that he was
sentenced to probation; his records further reflect that his probation was
revoked for a violation of its terms. But his split sentences were illegal;
thus, probation was unauthorized, and its revocation was void. None of
this is remedied through the probation-revocation process. Although the
revocation of probation may result in returning a defendant to the term
of incarceration required by the underlying sentence, it does not actually
vacate or set aside the invalid split sentence. Revoking probation is a
penalty for violating the terms of probation; in revoking probation, the
trial court does not correct the illegality of the sentence but, instead, acts
to enforce its terms.
Additionally, when the illegality of a split sentence has been
recognized, there is often a need for further proceedings:
"In the absence of a plea agreement, when the length of
a split sentence was within the statutory sentencing range, but
the execution of the sentence was improper, i.e., an illegal split
sentence was imposed, the trial court may resentence the
offender by setting aside the illegal portion of the sentence,
and imposing a legal sentence. See Wood v. State, 602 So. 2d
1195 (Ala. Crim. App. 1992). However, when the split sentence
was the product of a plea agreement accepted by the court that
called for an illegal sentence, i.e., the length of a split sentence
18
1190090
was within the statutory sentencing range, but the execution
of the sentence was improper, and the illegal split sentence
was imposed by the court in accordance with the plea
agreement, the offender may withdraw his plea of guilty."
Williams v. State, 203 So. 3d 888, 895 (Ala. Crim. App. 2015); see Moore
v. State, 871 So. 2d 106, 109-10 (Ala. Crim. App. 2003) (recognizing that
the trial court did not have jurisdiction to order an improper split sentence
and remanding the case "for the circuit court to conduct another
sentencing hearing and to reconsider the execution of" the sentence).
Recognizing for the first time on appeal from an order revoking
probation that a split sentence placing the offender on probation was
improper, but declaring the issue moot, does not provide the further
proceedings that would occur when the same issue is raised in Rule 32,
Ala. R. Crim. P., proceedings, see Williams, supra, or on direct appeal.
When a trial court actually rules upon the illegality of its split sentence,
it can then act to resentence the offender. But in the process set forth by
the Court of Criminal Appeals in this case -- determining that an illegal
split sentence is cured by the revocation of probation and that the issue
of the illegality of the split sentence is deemed moot -- defendants in
19
1190090
McGowan's circumstances are treated differently than defendants before
a trial court that correctly recognizes the illegality of the split sentence.
In other words, when a trial court intentionally acts to correct an illegal
split sentence, it must resentence the defendant. But under the Court of
Criminal Appeals' holding, when a trial court errs by revoking probation
without recognizing the illegality of the split sentence and providing a
resentencing hearing, the issue becomes "moot."
Further, although a trial court's attempt to split a sentence may be
invalid or unauthorized, the trial court had reasons for exercising its
discretion to elect to execute the underlying sentence pursuant to § 15-18-
8, and those reasons might not be found in the record. The trial court
which is in a better position than an appellate court to impose the proper
sentence, should have the opportunity to remedy its error or otherwise
impose a sentence that the circumstances require.
Revoking probation is not an appropriate mechanism for remedying
an illegal split sentence. Therefore, I agree that the decision of the Court
of Criminal Appeals affirming the trial court's probation-revocation order
is due to be reversed and the cause remanded. See Ex parte Hitt, 778 So.
20
1190090
2d 159, 162 (Ala. 2000) (holding that the trial court's order modifying a
sentence was void, reversing the Court of Criminal Appeals' affirmance of
that order, and remanding the cause "for an order or proceedings
consistent with this opinion"). The Court of Criminal Appeals should
vacate the trial court's order and dismiss the appeal. See Russell v.
Fuqua, 176 So. 3d 1224, 1229 (Ala. 2015) ("A void judgment will not
support an appeal. It is [an appellate court's] obligation to vacate such a
judgment and dismiss the appeal." (internal citation omitted)), and
Edwards v. City of Fairhope, 945 So. 2d 479, 485 (Ala. Crim. App. 2006).
The trial court then "has 'not only the power, but the duty' to set aside
[the] void sentence and resentence as mandated by the statute." Johnson
v. State, 716 So. 2d 745, 751 (Ala. Crim. App. 1997) (quoting Sorrells v.
State, 667 So. 2d 142, 143 (Ala. Crim. App. 1994)). The trial court may
only reconsider the execution of McGowan's sentences, and not the
underlying 15-year sentences, which remain valid. Austin v. State, 864
So. 2d 1115, 1118 (Ala. Crim. App. 2003).
21
1190090
Finally, I think it is time for this Court in a proper case to reexamine
the accuracy of the notion that an illegal or unauthorized sentence
impacts the subject-matter jurisdiction of a court.
"Jurisdiction is '[a] court's power to decide a case or issue
a decree.' Black's Law Dictionary 867 (8th ed. 2004).
Subject-matter jurisdiction concerns a court's power to decide
certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57
So. 754, 755 (1911) ('"By jurisdiction over the subject-matter
is meant the nature of the cause of action and of the relief
sought." ' (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308,
316, 19 L. Ed. 931 (1870))). That power is derived from the
Alabama Constitution and the Alabama Code. See United
States v. Cotton, 535 U.S. 625, 630-31, 122 S. Ct. 1781, 152 L.
Ed. 2d 860 (2002) (subject-matter jurisdiction refers to a
court's 'statutory or constitutional power' to adjudicate a
case)."
Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006).
A circuit court has the subject-matter jurisdiction to hear a felony
case. Ala. Const. 1901 (Off. Recomp.), art. VI, § 142; Ala. Code 1975, § 12-
11-30(2); Ex parte Seymour, 946 So. 2d at 538. It is unclear how a circuit
court loses subject-matter jurisdiction -- jurisdiction over the "type" of case
-- when it sentences a defendant to a term of imprisonment that is shorter
or longer than what is required by statute. Specifically, a trial court does
not lose the general authority to sentence in such case; it has simply acted
22
1190090
beyond its authority by imposing a sentence that is outside the possible
range of sentences provided by statute. Instead, the result should be that
"when a sentence is clearly illegal or is clearly not authorized by statute,
the defendant does not need to object at the trial level in order to preserve
that issue for appellate review." Ex parte Brannon, 547 So. 2d 68, 68 (Ala.
1989). Further, it would appear that such an issue should then be subject
to a harmless-error analysis. However, those concerns are not raised in
the instant case and, therefore, must await another day.
23
1190090
MENDHEIM, Justice (dissenting).
I respectfully dissent.
I agree with the main opinion insofar as it concludes that the trial
court's order entered under the Split-Sentence Act, § 15-18-8, Ala. Code
1975, altering the manner in which Walter McGowan's legal sentences are
to be executed, is illegal and, thus, void. I disagree, however, with the
decision to reverse the Court of Criminal Appeals' judgment and to
remand the case for the trial court, ultimately, to conduct further
proceedings; no further proceedings are necessary to remedy the trial
court's now moot illegal order regarding the execution of McGowan's
sentences. I believe that the Court of Criminal Appeals properly
overruled Enfinger v. State, 123 So. 3d 535 (Ala. Crim. App. 2012), in
determining that the trial court's action reinstating the execution of
McGowan's underlying 15-year sentences rendered moot any illegality in
the order entered pursuant to § 15-18-8, and I would affirm the Court of
Criminal Appeals' judgment.
My disagreement with the main opinion concerning the remedy in
this case is based on the reasoning set forth in the Court of Criminal
24
1190090
Appeals' decision below, which is largely based on the reasoning set forth
in Presiding Judge Windom's dissent in Enfinger, supra. In short, because
the illegal split sentences have been removed and McGowan is now
properly serving legal 15-year sentences, the trial court's error in
originally splitting his sentences is moot. The main opinion reasons that,
because the trial court's order imposing the split sentences was void, the
"trial court has no jurisdiction to act on the unauthorized sentence[s],
including conducting revocation proceedings and entering a revocation
order," and, thus, could not use the mechanism of a probation revocation
to correct the order illegally splitting the sentences. ___ So. 3d at ___.3 I
believe that such reasoning elevates form over substance. It is irrelevant
what the trial court called the proceeding it utilized to remedy the
jurisdictional defect, all that matters is that the trial court did, in fact,
remedy the jurisdictional defect. As explained in Enfinger:
"[W]hen the circuit court does not have the authority to split
a sentence under the Split-Sentence Act, § 15-18-8, Ala. Code
3Justice Shaw's writing similarly states that "[r]evoking probation
is not an appropriate mechanism for remedying an illegal split sentence."
___ So. 3d at ___ (Shaw, J., concurring specially).
25
1190090
1975, 'the manner in which the [circuit] court split the
sentence is illegal[,]' Austin v. State, 864 So. 2d 1115, 1118
(Ala. Crim. App. 2003), and ... '[m]atters concerning
unauthorized sentences are jurisdictional.' Hunt v. State, 659
So. 2d 998, 999 (Ala. Crim. App. 1994). Thus, this Court may
take notice of an illegal sentence at any time. See, e.g., Pender
v. State, 740 So. 2d 482 (Ala. Crim. App. 1999)."
123 So. 3d at 537. Therefore, I disagree with the main opinion insofar as
it determines that the mechanism the trial court used to correct the
jurisdictional defect was inadequate to actually correct the jurisdictional
defect.
Moreover, I disagree with the main opinion insofar as it concludes
that there is a need for further proceedings to remedy the trial court's
illegal order imposing the split sentences. The main opinion relies upon
the following reasoning set forth in Enfinger:
"In cases where the circuit court had no authority to
impose the Split-Sentence Act, the proper remedy has been to
remand the case to the circuit court for that court to remove
the split portion of the sentence. See e.g., Simmons [v. State,
879 So. 2d 1218 (Ala. Crim. App. 2003)] (holding that the
circuit court had no authority to split a sentence and
remanding the case to the circuit court for that court to set
aside the split portion of the sentence), Morris v. State, 876
So. 2d 1176 (Ala. Crim. App. 2003) (same); cf., Moore v. State,
871 So. 2d 106 (Ala. Crim. App. 2003) (holding that, although
the circuit court had authority to split the sentence, the circuit
26
1190090
court split the sentence in an improper manner and remanding
the case to the circuit court for that court to 'reconsider the
execution' of the sentence); Austin [v. State, 864 So. 2d 1115
(Ala. Crim. App. 2003)] (same)."
123 So. 3d at 537-38. The authority relied upon by the Enfinger court in
support of its assertion that a case such as this one must be remanded to
the trial court for it to remove the void order illegally splitting the
underlying sentence is readily distinguishable from the present case. In
each of the cases relied upon in Enfinger, the trial court had not yet taken
action to remove the illegal order modifying the execution of the
underlying sentence at issue; in other words, the illegal split sentence was
still in effect.4 However, in the present case, the trial court had already
vacated the illegal order modifying the execution of McGowan's
underlying sentences. The matter is now moot and there is no further
action required.
For these reasons, I respectfully dissent from the main opinion and
would affirm the Court of Criminal Appeals' decision.
Bolin, J., concurs.
4This is also true of Williams v. State, 203 So. 3d 888 (Ala. Crim.
App. 2015), a case relied upon by Justice Shaw in his special writing. See
___ So. 3d at ___ (Shaw, J., concurring specially).
27 | April 30, 2021 |
311157d2-c251-449e-9e36-60cc4b3c54b6 | Ex parte Cedric Lamar McIntyre. | N/A | 1200247 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200247
Ex parte Cedric Lamar McIntyre. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Cedric Lamar McIntyre
v. State of Alabama) (Coffee Circuit Court: CC-17-96.70; CC-17-97.70;
Criminal Appeals :
CR-19-0003).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Parker, C.J. -
Shaw, Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
d07c69d2-cb19-4556-8150-e60980a92718 | Ex parte Marianne Bunch Adams. | N/A | 1200292 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200292
Ex parte Marianne Bunch Adams. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Marianne Bunch Adams
v. State of Alabama) (Tallapoosa Circuit Court: CC-16-26; Criminal Appeals
:
CR-19-0323).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Bryan, J. -
Parker, C.J., and Shaw, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
da29efbf-f986-4c56-bc18-6908f0e955ba | Ex parte Boone Newspapers, Inc., et al. | N/A | 1190995 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 23, 2021
1190995
Ex parte Boone Newspapers, Inc., et al. PETITION FOR WRIT
OF MANDAMUS: CIVIL (In re: Faya Rose Toure v. Boone Newspapers, Inc.,
et al.) (Dallas Circuit Court: CV-19-900127).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on April 23, 2021:
A pplication Overruled. No Opinion. Parker, C.J. - Bolin, Shaw, Wise,
Bryan, Mendheim, Stewart, and Mitchell, JJ., concur. Sellers, J., dissents.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on February 12, 2021:
Petition Denied. Parker, C.J. - Bolin, Shaw, Wise, Bryan, Mendheim,
Stewart, and Mitchell, JJ., concur. Sellers, J., dissents.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 23rd day of April, 2021.
Clerk, Supreme Court of Alabama | April 23, 2021 |
c2fc9778-6945-4072-87e8-a6e94090858e | Ex parte Timothy Lamar Moss. | N/A | 1190967 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1190967
Ex parte Timothy Lamar M
oss. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Timothy Lamar Moss v.
State of Alabama) (Randolph Circuit Court: CC-17-24; Criminal Appeals :
CR-18-0909).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
570fb6ce-fd77-4361-ad82-453714463170 | Shell v. Butcher | N/A | 1200097 | Alabama | Alabama Supreme Court | Rel: May 14, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1200097
____________________
Irvin Shell, as administrator of the Estate of Annie Ruth
Peterson, deceased
v.
Terri Butcher and Shayla Payne
Appeal from Montgomery Circuit Court
(CV-14-901569)
SELLERS, Justice.
Irvin Shell, as administrator of the estate of Annie Ruth Peterson,
deceased ("the estate"), appeals from separate summary judgments
1200097
entered in favor of Montgomery-municipal jail employees Terri Butcher
and Shayla Payne, respectively, on the basis of State-agent immunity. We
affirm.
I. Facts
On April 13, 2013, at approximately 2:10 a.m., Montgomery police
officers arrested Annie Ruth Peterson for driving under the influence "of
any substance" and transported her to the municipal jail.1 Peterson,
however, was not under the influence of an intoxicating substance at the
time of her arrest; rather, she was suffering from a hemorrhagic stroke.
Upon arriving at the jail, Butcher "booked" Peterson into the jail.
Specifically, Butcher accessed Peterson's arrest report, verified her
personal information, and made an inventory of her personal belongings.
Butcher also observed that, although Peterson appeared intoxicated, she
was able to communicate verbally during the booking process and did not
appear to be suffering from any medical condition or illness. After Butcher
1Peterson was also issued citations for driving on the wrong side of
the road, driving without first obtaining a driver's license, and leaving the
scene of an accident.
2
1200097
completed the booking process, she had no further contact with Peterson.
Upon admission to the jail, Peterson was also required to undergo a "strip
search" by a correctional officer of the same gender. However, the female
officer responsible for conducting the search was on break or otherwise
unavailable. Therefore, Payne, a female correctional officer who had been
assigned to work with the male inmates, was asked to perform the search.
Payne conducted the search, had Peterson change into a jail "jumpsuit,"
and escorted her into the security cell and/or "drunk tank" to sober up.
Thereafter, the officer responsible for supervising the female inmates
returned to the designated area of the jail, and Payne returned to her
assigned position with the male inmates, thus having no further
interaction with Peterson. After spending time in the security cell,
Peterson was taken to the processing room where she was photographed,
fingerprinted, and underwent a medical profile and/or screening. Peterson
was then taken to a regular cell where she was issued a mat, a sheet, and
a blanket. Later that morning, a correctional officer retrieved Peterson
from her cell for her to meet with a bonding agent. When that officer
attempted to awaken Peterson, he observed that she appeared "drowsy"
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and could not stand up. Peterson was taken to the nurse's station where
she was assessed by a nurse for approximately one hour; Peterson's vital
signs were normal, and she was returned to her cell. Later that afternoon,
another correctional officer who was checking on inmates requested that
the nurse examine Peterson because Peterson appeared ill. After
observing Peterson, the nurse determined that Peterson had left-side body
weakness; the nurse contacted a doctor and relayed that information. The
doctor, in turn, issued an order to "release inmate and send to emergency
room." After the bonding process was complete, Peterson was released to
a family member who transported Peterson to a local hospital where she
was diagnosed with having suffered a stroke; she died three days later on
April 16, 2013.
The estate sued Butcher and Payne in their individual capacities,
alleging that they had been negligent and wanton in failing to obtain
medical care for Peterson in a timely manner. Butcher and Payne filed
individual motions for a summary judgment asserting that they were
entitled to State-agent immunity under the standard announced in Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000) (plurality opinion), and
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adopted by the Court in Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000);
the trial court granted those motions. This appeal followed.
II. Standard of Review
This Court reviews a summary judgment de novo, and we use the
same standard used by the trial court to determine whether the evidence
presented to the trial court presents a genuine issue of material fact. Rule
56(c), Ala. R. Civ. P.; Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The
movant for a summary judgment has the initial burden of producing
evidence indicating that there is no genuine issue of material fact. Once
the movant produces evidence establishing a right to a summary
judgment, the burden shifts to the nonmovant to present substantial
evidence creating a genuine issue of material fact. We consider all the
evidence in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in the nonmovant's favor.
Id.
III. Discussion
A. Law-of-the-Case Doctrine
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Initially, the estate argues that the motions for a summary judgment
filed by Butcher and Payne are barred by the law-of-the-case doctrine. We
disagree. In May 2017, Butcher and Payne filed a motion for a summary
judgment based on State-agent immunity, which the trial court denied.2
Butcher and Payne petitioned this Court for a writ of mandamus directing
the trial court to vacate its order denying the motion for a summary
judgment and to enter a summary judgment in their favor. On February
21, 2018, this Court entered an order summarily denying the petition for
a writ of mandamus. Ex parte City of Montgomery et al. (No. 1170321).
In August 2020, Butcher and Payne filed individual motions for a
summary judgment on the basis of State-agent immunity, which the trial
court granted. In its orders granting the motions for a summary
judgment, the trial court held that the law-of-the-case doctrine was
inapplicable because the motions presented new additional facts and
evidence, i.e., sworn testimony, relevant to the issue of immunity. The
estate asserts that this Court's February 21, 2018, order denying
2The summary-judgment motion was filed collectively by the City of
Montgomery, Butcher, and Payne. The City is not a party to this appeal.
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mandamus relief was an adjudication on the merits and, thus, became the
law of the case regarding State-agent immunity.
The filing of a petition for a writ of mandamus is a unilateral act of
a party requesting extraordinary relief from an action taken by a trial
court during the pendency of litigation. Rule 21, Ala. R. App. P. When
this Court summarily denies such a petition without ordering a response,
that act of denial neither amounts to a ruling on the merits of the
assertions in the petition nor affirms the determination of the trial court
such that it becomes the law of the case. Contrary to the estate's claim,
this Court's February 21, 2018, order denying the petition for a writ of
mandamus had no effect on the underlying litigation, but merely returned
the parties to the status quo ante as if no petition had been filed. See,
e.g., Ex parte Shelton, 814 So. 2d 251, 255 (Ala. 2001). Stated differently,
a writ of mandamus is an extraordinary writ, and this Court routinely
denies petitions for a writ of mandamus for procedural deficiencies
without consideration of the merits of the petition whatsoever. By way of
example, Rule 21(a)(1)(F), Ala. R. App. P., requires a petition for a writ of
mandamus to contain "copies of any order or opinion or parts of the record
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that would be essential to an understanding of the matters set forth in the
petition." Therefore, in the context of seeking review of a trial court's
order denying a summary-judgment motion on the basis of State-agent
immunity, a petitioner who fails to provide the motion for a summary
judgment, any responses to that motion, and the trial court's order
denying that motion would be in a perilous position, because the
petitioner has essentially deprived the appellate court of any means by
which to conduct a meaningful review of the issues presented in the
petition. See Ex parte Staats-Sidwell, 16 So. 3d 789 (Ala. 2008) (holding
that the failure to include essential information in petition for writ of
mandamus rendered petition fatally defective). Because the summary
denial of a petition for a writ of mandamus is not a ruling on the merits,
the law-of-the-case doctrine is inapplicable to bar the summary-judgment
motions at issue, which the trial court concluded were supported by
additional facts and evidence that was not a part of the evidentiary record
of the May 2017 motion for a summary judgment. See Ex parte Jones, 147
So. 3d 415, 420 (Ala. 2013) ("[G]enerally, 'a court may reconsider its
ruling on a motion for summary judgment and may correct an erroneous
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ruling at any time before final judgment.... The number of times a
subsequent motion for summary judgment will be allowed rests within the
sound discretion of the judge before whom the case is to be tried.' "
(quoting Food Serv. Distribs., Inc. v. Barber, 429 So. 2d 1025, 1027 (Ala.
1983))).
B. State-agent Immunity
A State agent claiming immunity in his or her individual capacity
bears the burden of demonstrating that the plaintiff's claims arise from
a function that would entitle the State agent to immunity. Ex parte
Cranman, supra. If the State agent makes such a showing, the burden
then shifts to the plaintiff to demonstrate that one of the two categories
of exceptions to State-agent immunity recognized in Cranman is
applicable. The estate asserts that the second exception applies in this
case, i.e, that Butcher and Payne acted "willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a
mistaken interpretation of the law." Cranman, 792 So. 2d at 405. One of
the ways in which a plaintiff can demonstrate that a State agent acted
beyond his or her authority is by offering evidence that the State agent
9
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failed " 'to discharge duties pursuant to detailed rules or regulations, such
as those stated on a checklist.' " Giambrone v. Douglas, 874 So. 2d 1046,
1052 (Ala. 2003) (quoting Ex parte Butts, 775 So. 2d at 178). It is
undisputed that Butcher and Payne were discharging duties pursuant to
Montgomery municipal-jail policies and procedures and, therefore,
generally would be entitled to State-agent immunity. The issue for our
resolution is whether the estate met its burden of showing that Butcher
and Payne failed to follow those policies and procedures and, thus, acted
beyond their authority so as to become liable for their respective actions.
1. Butcher
The estate contends that Butcher acted beyond her authority by
failing to complete a medical profile pursuant to Policy No. 2.01.B.4.
Policy No. 2.01, concerning the "inmate admission process," provides, in
relevant part:
"PROCEDURE
"1. The officers assigned to Post 994 will book each person
committed to the Montgomery Municipal Jail. ... The officer(s)
processes each new admission into the computerized jail
management system. The officer must first obtain personal
information such as date of birth, height, weight, etc. They
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also enter arrest information such as arresting officer,
processing officer, searching officer, and charges.
"....
"B. PROCESS FOR ADMITTING NEW INMATES INTO JAIL
"1. All inmates are subject to a pat search upon entering the
Municipal Jail. Inmates will be searched by officers of the
same gender. A strip search will be conducted as soon as
possible for incoming inmates.
"2. Arresting officers should not bring an inmate to the
Municipal Jail who is medically unfit for incarceration into
this facility.
"3. All personal property is logged in and the prisoner
acknowledges by signing the property folder. All transactions
will be in view of the jail's video equipment. If the prisoner is
not competent by reason of insanity or intoxication to verify
the personal effects, inventory, and authenticate the property
envelope, the booking officer will secure a signature from the
arresting officer.
"4. The booking officer must visually evaluate the inmate's
condition. If the inmate appears to be medically unfit for
confinement, the Jail-1 supervisor will notify a jail nurse. The
officer obtains the initial medical profile to include a mental
health inquiry on each new admission and forwards the profile
to the medical department for review.
"5. New inmates will be fingerprinted, photographed, given a
wristband, and a medical screening form will be prepared.
"....
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"8. Inmates charged with Public Intoxication, D.U.I., or
inmates under the influence of drugs will be housed in a
security cell until sufficiently sober to be processed and placed
in general population. During the sobering-up period, close
supervision must be maintained to guard against the ever-
present danger of medical emergencies. Before placing any
inmate who appears to be intoxicated or under the influence of
drugs in a security cell, he/she should be examined carefully
for symptoms of illness or injury.
"9. Incoming inmates will be issued bedding, jumpers, and
personal hygiene items. They will be provided with a shower
and hair care if necessary."
(Emphasis added.)
We are unwilling to conclude that Policy No. 2.01 constitutes the
type of "detailed," checklist-like rule that defines the scope of a State
agent's authority. Giambrone. The provisions of Policy No. 2.01 are
broadly phrased, some of the provisions do not indicate which correctional
officer is tasked with the duty stated in the provision, and other provisions
are ambiguous. Relevant here is Policy No. 2.01.B.4., which states:
"4. [a.] The booking officer must visually evaluate the inmate's
condition. [b.] If the inmate appears to be medically unfit for
confinement, the Jail-1 supervisor will notify a jail nurse. [c.]
The officer obtains the initial medical profile to include a
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mental health inquiry on each new admission and forwards the
profile to the medical department fo review."
(Emphasis added.)
The first part of subsection B.4. states that the "booking officer"
must visually evaluate the inmate's condition, which Butcher did. The
second part states that "the Jail-1 supervisor" will notify a jail nurse if the
inmate appears to be medically unfit for confinement. The third part
states that the "officer" obtains the initial medical profile. However, it is
not clear whether the "officer" who is required to obtain the medical
profile is the booking officer, the Jail-1 supervisor (who may also be a
correctional officer), or some other correctional officer of the jail. In other
words, Policy No. 2.01.B.4. is not so specific as to put Butcher on notice
that she was required to obtain a medical profile on an inmate during the
booking process. In any event, Policy No. 5.01, the more detailed policy
regarding "health care services," confirms that the medical profile is to be
obtained by a "processing officer." That policy states, in relevant part:
"2. During processing into the Municipal Jail, each inmate
will have a Primary Health medical Screening Form completed
by the processing officer. The form will become a part of the
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inmate's medical record. The original screening form will be
forwarded to the jail medical staff and a copy will be
maintained in the inmate's property folder. The inmate will be
assessed by the medical staff within 24 hours.
"....
"4. If during processing an inmate indicates he/she has chest
pain, high blood pressure, diabetes, shortness of breath,
seizures, heart problems, uncontrolled bleeding, or dizziness,
the medical staff will be notified immediately...."
(Emphasis added.)
Sharleswen Atchinson, another correctional officer employed at the
jail, stated in her deposition that the medical profile is obtained during
processing, which, she said, occurs after an inmate has spent at least four
hours in a security cell. Atchinson stated in her deposition that, after
Peterson had spent the required time in the security cell, she escorted
Peterson to the processing room where Peterson was photographed,
fingerprinted, and underwent a medical profile. Because Policy No.
5.01.2. expressly states that the processing officer is required to obtain
medical profiles on inmates, the estate did not meet its burden of
14
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demonstrating that Butcher, the booking officer, acted beyond her
authority in failing to obtain a medical profile on Peterson.
The estate also argues that Butcher violated Policy No. 2.04 by
failing to notify a nurse when Peterson was booked into the jail. Policy No.
2.04 concerns the "classification of inmates" and states, in relevant part,
"5. Intoxicated Inmates
"All inmates committed to jail for public intoxication or
marked drunk on the arrest report will be processed and
housed in a security cell. All individuals charged with D.U.I.
will remain in jail custody for a minimum of 4 hours. When
placed in a security cell, the inmate will be placed on his/her
side to prevent choking and observed closely. [Correctional
officers] will wake the inmate up when the round[s] are made.
The jail nurse must be notified."
(Emphasis added.)
The trial court concluded that Policy No. 2.04.5. did not constitute
a detailed rule, such as one stated on a checklist, because the policy does
not specify "when, who or under what conditions a jail nurse must be
notified." We agree. Like Policy No. 2.01, Policy No. 2.04.5. is broadly
phrased and not sufficiently detailed to impose a duty to notify the jail
nurse during the booking process. In fact, given the chronological order of
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the steps listed in Policy No. 2.05.5., it would appear that notification of
the jail nurse would not occur until after an inmate has been searched and
confined in a security cell. Notably, Major Orlando Gonzalez, another
correctional officer employed at the jail, testified in his deposition that
Policy No. 2.04.5. was revised in January 2014, after Peterson's death, to
specifically provide that "a nurse is to see any person before [he or she
goes] into the drunk tank." Because Policy No. 2.04.5. was not so specific
or sufficiently detailed as to impose a duty upon Butcher to contact a jail
nurse during the booking process, the estate did not meet its burden of
establishing that Butcher violated that policy.
2. Payne
The estate contends that Payne is not entitled to State-agent
immunity because, it says, Payne also violated Policy No. 2.04.5. by failing
to notify the jail nurse either before or after she conducted Peterson's
search and placed her in the security cell. As indicated, Policy No. 2.04.5.
does not constitute the type of detailed, checklist-like rule that defines the
scope of a State-agent's authority; the policy did not specify "when, who
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or under what circumstances a jail nurse must be notified." Thus, Policy
No. 2.04.5. did not impose a duty on Payne to contact a jail nurse either
before or after she searched Peterson and placed her in the security cell.
Accordingly, the estate failed to demonstrate that Payne acted beyond her
authority in any manner. Moreover, there is simply no evidence indicating
that Payne acted negligently and/or wantonly in conducting the search of
Peterson. As indicated, when Peterson was ready to be searched, the
female officer responsible for conducting the search was on break or
otherwise unavailable. Therefore, Payne, who had been assigned to work
in another area of the jail, was asked to conduct the search. After Payne
conducted the search, the officer responsible for supervising female
inmates returned to the designated area of the jail, and Payne went back
to her assigned position with the male inmates, thus having no further
interaction with Peterson.
IV. Conclusion
The estate has not demonstrated that the trial court erred in
entering a summary judgment in favor of Butcher and Payne based on
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State-agent immunity. Accordingly, we affirm the trial court's summary
judgments.
AFFIRMED.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur.
18 | May 14, 2021 |
3491ca2e-dee2-49dc-9e50-7d66135b195f | Charles K. Breland, Jr., and Breland Corporation v. City of Fairhope and The Battles Wharf / Point Clear Protective Association | N/A | 1180492 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 23, 2021
1180492
Charles K
. Breland, Jr., and Breland Corporation v. City of
Fairhope and The Battles Wharf / Point Clear Protective Association (Appeal
from Baldwin Circuit Court: CV-13-901096).
CERTIFICATE OF JUDGMENT
W
HEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on April 23, 2021:
Application Overruled. No Opinion. Mitchell, J. -
Parker, C.J., and
Bolin, Shaw, Bryan, Mendheim, and Stewart, JJ., concur. Sellers, J.,
dissents.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on December 31, 2020:
Affirmed. Mitchell, J. -
Bolin, Shaw, Mendheim, and Stewart, JJ., concur.
Bryan, J., concurs in the result. Parker, C.J., concurs in part and concurs in
the result. Sellers, J., dissents.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 23rd day of April, 2021.
Clerk, Supreme Court of Alabama | April 23, 2021 |
edd7b44b-9688-401e-b643-df7ab514ca28 | Ex parte T.B. | N/A | 1200312 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200312
Ex parte T.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CIVIL APPEALS (In re: T.B. v. Calhoun County Department of Human
Resources) (Calhoun Juvenile Court: JU-13-341.04; Civil Appeals :
2190710).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
e0b260eb-e8a7-499b-83a8-139ca98e08d9 | Boyd v. Mills | N/A | 1190615 | Alabama | Alabama Supreme Court | REL: April 23, 2021
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.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2020-2021
____________________
1190615
____________________
John Boyd and Batey & Sanders, Inc.
v.
Emily Hawk Mills, as personal representative of the Estate of
Thomas Batey, deceased
Appeal from Etowah Circuit Court
(CV-17-900343)
MITCHELL, Justice.
This appeal requires us to address an issue of first impression before
this Court: whether a noncompetition agreement executed ancillary to the
1190615
sale of a business terminates upon the death of the individual subject to
the covenant not to compete. Because the noncompetition agreement in
this case did not impose any affirmative obligations on the decedent and
was executed separately from the other agreements relating to the sale of
the business, we hold that the noncompetition agreement did not
terminate.
Facts and Procedural History
In 2006, Thomas Batey sold all of his stock in Batey & Sanders, Inc.,
a provider of construction and highway-industry products that he solely
owned, to its president, John Boyd, and to Batey & Sanders ("the buyers")
through stock-purchase agreements ("the stock agreements"). The parties
to the stock agreements simultaneously executed several other contracts,
including a noncompetition agreement ("the noncompete") and an
employment agreement. The stock agreements required the execution of
the noncompete and the employment agreement as conditions to the
buyers' obligations to close on the stock agreements.
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The noncompete is the center of this dispute. It was executed "as
further consideration for the purchase of [Batey's] shares" conveyed in the
stock agreements, and it prohibited Batey from doing three things:
"(i) [to] cause, induce or encourage any employees of [Batey]
who are or become employees of [Batey & Sanders] or [Boyd]
to leave such employment; (ii) [to] cause, induce or encourage
any material actual or prospective customer, supplier,
manufacturer or licensor of [Batey], or any other person who
has a business relationship with [Batey] which is material to
[Batey], to terminate or change any such actual or prospective
relationship in a manner which would be adverse to [Boyd] or
[Batey & Sanders]; or (iii) [to] conduct, participate or engage,
directly or indirectly, in any business involving the operation
of a business similar [to] that conducted by [Batey &
Sanders]…."
Those were Batey's only obligations under the noncompete. In return, the
buyers agreed to pay Batey $2,136,631.62 as the "total consideration" for
the noncompete "in 120 equal monthly payments of $17,805.26 starting on
December 1, 2006 and continuing on the first (1st) day of each month
thereafter until paid in full."
Batey died in April 2013. The buyers allegedly continued making
most of the monthly payments due under the noncompete until December
2013, but then they ceased making the monthly payments, three years shy
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of the end of the term of the noncompete. The amount allegedly due for
the remaining three years of the noncompete totaled $640,989.36.
Emily Hawk Mills, as personal representative of Batey's estate ("the
estate"), sued the buyers in the Etowah Circuit Court, seeking the
remaining amount allegedly due under the noncompete. After the parties
filed cross-motions for summary judgment, the trial court entered
summary judgment in the estate's favor. It found that "Batey's interest
in the goodwill of Batey & Sanders, Inc. was consideration given in the
initial sale of the business, and conclusively the Non-Competition
Agreement was not a personal services contract that became voidable" by
the buyers after Batey's death. The buyers appealed.
Standard of Review
Our review of a summary judgment is de novo. See Pittman v.
United Toll Sys., LLC, 882 So. 2d 842, 844 (Ala. 2003). When we review
a summary judgment, we use the same standard as the trial court -- that
is, we determine whether the evidence before it created a genuine issue
of material fact and, if not, whether the movant was entitled to judgment
as a matter of law. Id.; see also Rule 56(c), Ala. R. Civ. P. Because the
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issue before us does not hinge on any factual determination, we evaluate
whether the trial court correctly determined that the estate was entitled
to judgment as a matter of law.
Analysis
We have been asked to address one issue: whether the buyers'
obligations under the noncompete survived Batey's death. When we are
called upon to determine parties' contractual rights, this Court must first
look to the plain language of the contract, and we "may not make a new
contract for the parties or rewrite their contract under the guise of
construing it." Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35-36
(Ala. 1998).
The noncompete did not expressly address what would happen in the
event of Batey's death. It merely provided that the buyers "shall" pay
Batey $2,136,631.62 "in 120 equal monthly payments of $17,805.26
starting on December 1, 2006 and continuing on the first (1st) day of each
month thereafter until paid in full." The buyers could pursue "an
injunction, restraining order or other equitable relief," along with "any
other rights and remedies which [the buyers] may have hereunder or at
5
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law or in equity" if Batey breached the noncompete. Importantly,
however, the noncompete did not require Batey to perform any act -- it
only required him to refrain from performing certain acts. Further, the
buyers did not have an express right to cancel the noncompete in the
event of a breach by Batey, even though the noncompete gave Batey the
"full power and authority to cancel [the noncompete] and exercise all
remedies available to him as set forth in [the noncompete and stock
agreements, among others,]" upon a default by the buyers. Thus, nothing
in the language of the noncompete expressly allowed the buyers to cease
payments under the agreement after Batey's death.
Because the noncompete did not give the buyers an express right to
terminate, they argue that it was a "personal service contract" that did
not survive Batey's death. This Court has held that "[c]ontracts resting
on the skill, taste, or science of a party, i.e., those contracts wherein
personal performance by the promisor is of the essence and the duty
imposed can not be done as well by others as by the promisor himself, are
personal and do not survive his death." Cates v. Cates, 268 Ala. 6, 10, 104
So. 2d 756, 759 (1958). But "[a] contract that is not one for personal
6
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services survives the death of the decedent," and the decedent's personal
representative has the right to enforce the contract. McGallagher v.
Estate of DeGeer, 934 So. 2d 391, 403 (Ala. Civ. App. 2005). This Court
has not addressed whether a noncompetition agreement is a personal-
service contract that terminates upon the death of the party subject to the
covenant not to compete.1
The buyers rely primarily on Slone v. Aerospace Design &
Fabrication, Inc., 111 Ohio App. 3d 725, 676 N.E.2d 1263 (1996), in which
the Ohio Court of Appeals considered two cases in which a party to a
covenant not to compete died before the payments securing that covenant
were completed. The court recognized that, in the context of
noncompetition agreements executed in conjunction with the sale of a
business, "[t]he majority rule is that noncompetition agreements which
1This Court has, at least in one case that none of the parties cite,
stated that it will "not specifically enforce, as of course, the naked terms
of a negative covenant in a personal service contract restricting other
employment ...." Robinson v. Computer Servicenters, Inc., 346 So. 2d 940,
943 (Ala. 1977). But that reference was in passing -- Robinson did not
directly address whether a noncompetition agreement constitutes a
personal-service contract, let alone whether it terminates upon a party's
death.
7
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are not part of larger agreements such as employment contracts
containing affirmative promises of personal services are not personal
service contracts." 111 Ohio App. 3d at 731, 676 N.E.2d at 1267. But, the
court stated, when they "are joined with affirmative promises, the
covenant not to compete is a personal service contract which terminates
upon the death of the covenantor." 111 Ohio App. 3d at 731-32, 676
N.E.2d at 1267 (emphasis omitted). In part because the noncompetition
agreements before it did not fit within the majority rule for
noncompetition agreements "ancillary to the sale of a business," 111 Ohio
App. 3d at 731, 676 N.E.2d at 1267, the Ohio Court of Appeals held that
they were personal-service contracts. The noncompete here, however, was
ancillary to the sale of a business and was not "part of [a] larger
agreement[] such as [an] employment contract[] containing affirmative
promises of personal services." Id. Thus, Slone does not apply.
The buyers also mistakenly rely on Bloom v. K & K Pipe & Supply
Co., 390 So. 2d 770 (Fla. Dist. Ct. App. 1980). In that case, Joseph Bloom
entered into a noncompetition agreement with the company that
purchased his business, but he died before that agreement expired. Id. at
8
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771. In addition to prohibiting Bloom's competition with the company, the
agreement also required him to "answer any questions and respond to any
request for information from [the company] which relate to the business
of [the company]." Id. at 771. Based in part on that language, the Florida
District Court of Appeals held that the noncompetition agreement
terminated upon Bloom's death because the personal representative of his
estate could not "perform as fully and as well as [Bloom] might have." Id.
at 773. But, unlike in Bloom, the noncompete here imposed no affirmative
obligations on Batey -- only negative covenants in which he agreed not to
do certain things. Thus, there is nothing for the personal representative
of the estate to "perform" in the first place.
The estate, on the other hand, argues that Mail & Media, Inc. v.
Rotenberry, 213 Ga. App. 826, 446 S.E.2d 517 (1994), is on point. In that
case, Mr. Rotenberry sold a corporation he solely owned and signed
separate noncompetition and employment agreements. The purchaser
continued making payments under the noncompetition agreement until
Rotenberry died, at which point it argued that the noncompetition
agreement was a personal-service contract that terminated upon his
9
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death. The Georgia Court of Appeals disagreed. It held that, "while a
noncompetition agreement joined with affirmative promises is a personal
services contract which terminates upon the death of the promisor, a
noncompetition agreement standing alone, with no affirmative promises,
is not." 213 Ga. App. at 827, 446 S.E.2d at 519. More specifically, it
reasoned that, "[w]hen a noncompetition agreement ancillary to the sale
of a business does not also require the seller to affirmatively provide
services to the buyer, the essential benefit the buyer is purchasing is the
business's goodwill (as opposed to the seller's expertise)," so "the seller's
death does not deprive the buyer of this benefit ...." Id.2
2The Georgia Court of Appeals' decision in Rotenberry does not stand
alone. See, e.g., Sanfillippo v. Oehler, 869 S.W.2d 159, 163 (Mo. Ct. App.
1993) (holding that covenant not to compete in "Employment and
Non-Competition Agreement" was severable from employment portion of
the agreement and was "not one for personal services and accordingly,
defendant's payment obligation did not terminate" on the covenantor's
death); TPS Freight Distribs., Inc. v. Texas Commerce Bank-Dallas, 788
S.W.2d 456, 458-59 (Tex. App. 1990) (holding that covenant not to compete
ancillary to an asset-purchase agreement, which contained no affirmative
promises, was not a personal-service contract and survived death of
covenantor); Rudd v. Parks, 588 P.2d 709, 712-13 (Utah 1978) (holding
that payments due under covenant not to compete ancillary to sale of
business did not terminate upon covenantor's death); see also Symphony
Diagnostic Servs. No. 1 Inc. v. Greenbaum, 828 F.3d 643, 647 (8th Cir.
10
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The reasoning of Rotenberry is persuasive. As in that case, Batey
signed the noncompete -- which was separate from the employment
agreement, had separate consideration, and contained only negative
covenants -- ancillary to the sale of Batey's stock in Batey & Sanders and
as required by the stock agreements. In addition, the parties entered the
noncompete as "further consideration for the purchase of [Batey's] shares"
conveyed in the stock agreements. Under these facts, "the essential
benefit" of the noncompete was a purchase of "the business's goodwill (as
opposed to the seller's expertise)," so Batey's death "does not deprive the
2016) (observing that "the crucial difference between a personal services
contract and a non-compete agreement" is that "the former requires
affirmative actions by the employee, whereas the latter requires only that
they refrain from certain actions" (emphasis omitted)); Managed Health
Care Assocs., Inc. v. Kethan, 209 F.3d 923, 929 (6th Cir. 2000) (noting that
a personal-service contract "requires that one of the parties be bound to
render personal services" but that "a noncompetition clause only requires
that one of the parties abstain from certain activities"). The court in
Keller v. California Liquid Gas Corp., 363 F. Supp. 123 (D. Wyo. 1973),
reached the opposite conclusion. But the buyers do not rely on Keller,
and, as the Georgia Court of Appeals noted, Keller appears to be an
outlier. Regardless, because Keller "failed to distinguish between those
noncompetition agreements which are made in the context of an
employment agreement and those which are not," its "reasoning is
flawed." Rotenberry, 213 Ga. App. at 827 n.1, 446 S.E.2d at 519 n.1.
11
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[buyers] of this benefit." Rotenberry, 213 Ga. App. at 827, 446 S.E.2d at
519. Thus, the noncompete was not a personal-service contract in which
"personal performance by the promisor is of the essence." Cates, 268 Ala.
at 10, 104 So. 2d at 759. And because it is not a personal-service contract,
the noncompete "survives the death of the decedent" and the personal
representative of the estate has the right to enforce the noncompete.
McGallagher, 934 So. 2d at 403.
The buyers' remaining arguments are unavailing. First, they argue
that the lack of an inurement clause in the noncompete -- that is, a clause
stating that the benefits and obligations of a contract pass to a decedent's
heirs -- indicates that the parties intended to terminate the noncompete
upon Batey's death. They say that omission is especially notable because
the stock agreements and a stock-pledge agreement do contain inurement
clauses. But the mere absence of an inurement clause does not override
the other principles discussed above. Second, the buyers argue that
requiring their continued payment under the noncompete "would
fundamentally alter the business landscape of this great and business
friendly state" because, they say, it "would render such common
12
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agreements so risky and such a potential liability that they might as well
be useless." Buyers' brief at 8. The buyers, as self-acknowledged
sophisticated parties, are likely aware of an obvious and simple solution:
provide in the contract whether the noncompetition agreement will
survive the death of the party who promises not to compete. See TPS
Freight Distribs., Inc. v. Texas Commerce Bank-Dallas, 788 S.W.2d 456,
459 (Tex. App. 1990) ("If appellants had wished to reserve the right to pay
less than the full sum, in the event of Blair's death, they could have
inserted such a condition into the contract. They did not.").
Conclusion
The language of the noncompete did not give the buyers the right to
cease payments because of Batey's death. Nor is the noncompete a
personal-service contract that terminated upon Batey's death. For those
reasons, the trial court properly entered summary judgment in favor of
the estate.
AFFIRMED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Stewart, JJ., concur.
13 | April 23, 2021 |
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