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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 1200048 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 1200048 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 1200048 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 1200048 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 1200048 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 1200048 "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 1200048 "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 1200048 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 1200048 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 1200048 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 1200048 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 1200048 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. 8 1190947 " '(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. 9 1190947 " '(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 10 1190947 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 11 1190947 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 12 1190947 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. 13 1190947 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 14 1190947 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 15 1190947 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 16 1190947 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 17 1190947 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 18 1190947 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 19 1190947 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; 20 1190947 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 21 1190947 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 22 1190947 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 1190947 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 24 1190947 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 25 1190947 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. 26 1190947 "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 27 1190947 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 28 1190947 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. 29 1190947 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 30 1190947 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 31 1190947 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 1190947 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. 33 1190947 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, 34 1190947 § 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." 35 1190947 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 36 1190947 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 37 1190947 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 38 1190947 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 39 1190947 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 40 1190947 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 41 1190947 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 42 1190947 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.' 43 1190947 "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 44 1190947 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. 45 1190947 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. 46 1190947 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. 47 1190947 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 48 1190947 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 49 1190947 "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). 50 1190947 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 51 1190947 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 52 1190947 $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 53 1190947 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). 54 1190947 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. 55 1190947 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. 56 1190947 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 57 1190947 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 58 1190947 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." 59 1190947 "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 1191001 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 1191001 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 14 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 (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 1200213 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 1200213 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 1200213 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 1200213 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 1200213 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 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 1190660 "[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. 26 1190660 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 27 1190660 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. 28 1190660 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. 29 1190660 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 30 1190660 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. 31 1190660 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. 32 1190660 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 33 1190660 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. 34 1190660 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 35 1190660 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. 36 1190660 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. 37 1190660 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 38 1190660 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 39 1190660 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) 40 1190660 ("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. 41 1190660 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 42 1190660 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. 43 1190660 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. 44 1190660 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). 45 1190660 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 46 1190660 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 47 1190660 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 48 1190660 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. 49 1190660 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 1190682 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. 11 1190682 "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 1190682 "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 1190682 "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. 14 1190682 "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 15 1190682 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 1190682 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 1190682 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 1190682 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, 20 1190682 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 1190682 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 1190682 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 23 1190682 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 24 1190682 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, 25 1190682 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 26 1190682 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 27 1190682 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 1190682 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 1190682 "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 1190682 "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 1190682 "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 1190682 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)). 16 1190470 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 1190470 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 18 1190470 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 1190470 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 1190470 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 21 1190470 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. 22 1190470 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.). 23 1190470 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). 24 1190470 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 5 1190470 "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 6 1190470 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 7 1190470 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 8 1190470 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 9 1190470 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 1190470 (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 1 1190470 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 2 1190470 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 1190470 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 1190470 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 5 1190470 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 1190470 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 8 1190470 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" 3 1200097 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 4 1200097 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 5 1200097 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. 6 1200097 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 7 1200097 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 8 1200097 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 1200097 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 10 1200097 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. ".... 11 1200097 "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 12 1200097 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 13 1200097 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 1200097 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 15 1200097 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 16 1200097 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 17 1200097 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. 2 1190615 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 3 1190615 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 4 1190615 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 1190615 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 1190615 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 1190615 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 1190615 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 1190615 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 1190615 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 1190615 [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 1190615 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