source: Caselaw Access Project

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text:
    LIBERTY NATIONAL LIFE INSURANCE COMPANY v. UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, P.C., et al.
    1012346.
    Supreme Court of Alabama.
    Sept. 19, 2003.
    Rehearing Denied Nov. 21, 2003.

      William J. Baxley and Charles A. Dauphin of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant.
    W. Stancil Starnes, Laura Howard Peck, and Bryan 0. Balogh of Starnes & Atchi-son, LLP, Birmingham, for appellees.
    W. Boyd Reeves and M. Kathleen Miller of Armbrecht Jackson, LLP, Mobile, for amicus curiae Alabama Hospital Association, in support of the appellees.
    Robert A. Huffaker and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for amicus curiae Hal Phillips, in support of the appellant.
   HARWOOD, Justice.

On May 24, 2002, Liberty National Life Insurance Company (“Liberty National”) sued the University of Alabama Health Services Foundation, P.C., University of Alabama at Birmingham Hospital, and UAB Health System (hereinafter collectively referred to as “UAB”). Liberty National’s complaint presented claims alleging “prima facie tort”; violation of Ala.Code 1975, § 22-21-7; intentional interference with Liberty National’s “contractual and/or business relationships” with its insureds; and a claim seeking a declaratory judgment under the Alabama Declaratory Judgment Act (“the Act”). Liberty National alleged that UAB’s billing statements to its patients who are also Liberty National policyholders often contain charges for various services that exceed the amounts UAB has accepted or will accept as full payment for those services; thus, Liberty National claims that UAB causes it to pay its policyholders amounts in reimbursements for services performed by UAB that exceed what UAB accepts as full satisfaction of those services. Liberty National sought an injunction to prevent UAB from continuing its allegedly improper billing practice, an award of compensatory and punitive damages, and a judgment declaring that UAB’s billing practices violated Ala.Code 1975, § 22-21-7.

UAB filed a motion to dismiss the action pursuant to Rule 12(b)(1), (6), (7), and Rule 19, Ala.R.Civ.P. In its motion UAB asserted that the “Board of Trustees of the University of Alabama for its Division, University Hospital” was the correct designation for the defendant designated in Liberty National’s complaint as “University of Alabama at Birmingham Hospital.” This defendant is referred to hereinafter as “UAB Hospital.” UAB asserted lack of subject-matter jurisdiction arising from Liberty National’s lack of standing to bring any of the claims except the claim alleging intentional interference with contractual and/or business relationships; failure to state a claim upon which relief could be granted as to the prima facie tort claim and the claim asserting a violation of § 22-21-7; failure to join policyholders as necessary parties; and UAB Hospital’s immunity from Liberty National’s claims against it by virtue of Ala. Const.1901, Art. I, § 14. Liberty National responded and UAB then filed a reply brief in response to Liberty National’s opposition. In that brief, UAB expanded its ground of failure to state a claim upon which relief could be granted to include the declaratory-judgment claim. On September 9, 2002, the trial court granted UAB’s motion to dismiss the case, on the ground that the court lacked jurisdiction over the action because Liberty National lacked standing to bring it. Liberty National appealed.

On appeal, Liberty National argues that the trial court’s ruling that it lacks standing was improper and that this Court cannot affirm the trial court’s judgment on the basis of any of the other grounds contained in UAB’s motion to dismiss.

“The appropriate standard of review of a trial court’s [ruling on] of. a motion to dismiss 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 Road Constr., Inc., 858 So.2d 257, 260 (Ala.2003).

The complaint states that since 1969 Liberty National has issued cancer insurance policies that pay policyholders amounts equal to their medical expenses for the treatment of cancer. These cancer policies are supplemental, as opposed to primary, insurance policies; Liberty National makes payments directly to the policyholders or their family members, and only “rarely, if ever,” makes payments directly to health-care service providers. The cancer policies are intended to assist in paying medical bills or other expenses incurred by policyholders afflicted with cancer and to pay the expenses of cancer treatment, regardless of the presence of, and payments by, other insurance or other primary payment sources, such as Medicare. As Liberty National states in its brief to this Court:

“It is thus inherent in the promises made in [Liberty National’s] insurance that the patient, if he or she has other insurance (or Medicare or other coverage), will be covered more than once for the treatments he or she receives — once by payment to the hospital or doctor and once to the insured.... ”

These cancer policies are renewable for the life of the policyholder; Liberty National cannot modify or eliminate any of the terms or conditions of the policies. However, Liberty National may, subject to regulatory limitations, increase the annual premiums. As Liberty National stated in its complaint, “[U]nder the terms of the Cancer Policies, Liberty National is obligated to pay Liberty National Insureds benefits on some policies of ‘expenses incurred’ or, in other policies, the ‘actual charges by a hospital, physician or other provider’ for a Covered Treatment of the Liberty National Insured.... [Liberty National] is not obligated to pay benefits ‘in excess of the usual and customary charges’ for such treatment.” Many of the cancer policies issued by Liberty National have no dollar limit on the amounts Liberty National may be required to pay for radiation treatment, chemotherapy, prescription chemotherapy drugs, and other out-of-hospital prescription drugs. Liberty National designates those policies as the “no dollar limit policies.” The complaint states that at the end of the year 2001 Liberty National had approximately 78,000 no dollar limit policies in force.

As a part of its billing practice, UAB used a price list it refers to as “Charge Master.” UAB states that this price list “exhaustively compiles” its actual charges. It explained in its reply brief in the trial court that “[t]he Charge Master inventories the actual charges and ensures their universal application to every patient, irrespective of whether a third party payor may ultimately satisfy part or all of the charges.” The “actual charges” thus derived are the amounts billed by UAB. However, as is common practice in the health-care industry, and as required by law in certain instances, UAB often accepts as payment in full an amount less than the actual total charge reflected on the billing statement generated using Charge Master. For example, pursuant to 42 C.F.R. § 412.42(a): “A hospital may not charge a beneficiary for any services for which payment is made by Medicare, even if the hospital’s costs of furnishing services to that beneficiary are greater than the amount the hospital is paid under the prospective payment systems.” The Medicare Provider Reimbursement Manual, Part I, Chapter 22, § 2203, states: “While the Medicare program cannot dictate to a provider what it charges or charge structure may be used, the program may determine whether or not the charges are allowable for use in apportioning costs under the program.” (UAB’s brief, p. 7.) Also, hospitals often enter into agreements with insurance companies pursuant to which the hospital agrees to accept a “reimbursed amount” that is less than the actual charge incurred by the policyholder. As stated in UAB’s reply brief in the trial court, unless UAB is statutorily or contractually limited to the amount it may accept as full payment for the health-care services it provides, it expects reimbursement for the “full amount of the actual charges.”

Liberty National’s complaint states that when UAB provides cancer treatment to a Liberty National policyholder, UAB issues a billing statement that some policyholders then present to Liberty National. That statement does not reflect the actual amount UAB can charge and collect for treatments if the policyholder also receives benefits from Medicare or from some other insurance company that has a special arrangement with UAB for reimbursing its charges. Rather, as noted, the statement reflects the charges an otherwise uninsured patient must pay, compiled using Charge Master, without regard to any limiting special program or contract. Thus, the Liberty National policyholder, just like all other patients, receives a statement showing amounts extracted using Charge Master, amounts that are not necessarily the amounts UAB has accepted or will accept as full payment of its services. The terms of Liberty National’s cancer policies require that Liberty National pay the policyholder the full amount listed on the statement. As Liberty National states in its brief to this Court: “It is the practice of [Liberty National] to pay the insureds the amount billed by [UAB] even though the amounts are greatly inflated.” Liberty National avers in its complaint that during the years 2000 and 2001, UAB’s billing practice caused it to pay its cancer policyholders treated by UAB who also received Medicare benefits more than $276,094 in excess of what UAB accepted from Medicare as full payment for their cancer treatments.

On May 4, 2002, Liberty National sent a letter notifying UAB of the alleged injury UAB’s billing practice was causing and demanding that UAB “cease and desist from engaging in their billing practice.” UAB has not changed its billing practice. The trial court’s order granting UAB’s motion to dismiss states, in part:

“Liberty [National] claims that [UAB is] issuing statements to [its] patients, upon discharge, that are not the actual charges or expenses incurred. That is, [UAB] issue[s] to [its] patients statements pursuant to Section 22-21-7, Code of Alabama [1975], which do not reflect the actual amounts received by [UAB] when such patients have either governmental or private insurance. Some of these individuals are also policyholders of [Liberty National’s] cancer policies that provide for payment of ‘actual charges’ or the amount that Liberty [National] is required to pay its policyholder. Stated another way[,] Liberty [National] wants [UAB] to state the amount received by [UAB] as the actual charges. This would require different stated amounts for patient[s] with no government or private insurance to cover their medical costs. [Liberty National’s] subject policies are between it and its policyholders. Payment is made directly to the policyholder. Liberty [National] has no contractual agreement for such policies with [UAB].
“[UAB] filed a motion to dismiss on July 3, 2002. The basis of such motion was as follows: (1) lack of subject matter jurisdiction as to UAB hospital; (2) Failure to join Liberty [National] policyholders as necessary parties; (3) Liberty [National] does not have standing; (4) Alabama law does not recognize a cause of action for prima facie torts; and (5) Liberty [National] cannot maintain a private cause of action for violation of Section 22-21-7, Code of Alabama.
“The Court has considered the submissions of the parties and finds that as a matter of law, this Court does not have jurisdiction of this matter since [Liberty National] has no standing to bring this cause of action. Pursuant to Rule 12, [Ala. R. Civ. P.], this case is dismissed. Costs are taxed against [Liberty National]. State v. Property at 2018 Rainbow Drive, Known as Ocms[,] 740 So.2d 1025 [(Ala.1999),] and Liberty National Life Insurance Co. v. Allen[,] 699 So.2d 138 [(Ala.1997)].”

Liberty National contends that the trial court erred in holding that it lacked standing to bring this action.

“Standing, like jurisdiction, is necessary for any valid legal action. To say that a person has standing is to say that that person is a proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.”

Doremus v. Business Council of Alabama Workers’ Compensation Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996).

“Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ Romer v. Board of County Comm’rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting).... See also NAACP v. Town of East Haven, 892 F.Supp. 46 (D.Conn.1995). ‘One has standing to bring his complaint into court “if his stake in the resolution of that complaint assumes the proportions necessary to ensure that he will vigorously present his case.” ’ Smith v. Potts, 293 Ala. 419, 422, 304 So.2d 578, 580 (1974)....”

State v. 2018 Rainbow Drive, 740 So.2d 1025, 1027-28 (Ala.1999) (emphasis omitted). With respect to the issue of standing and the standard of review discussed in Lyons, supra, we must consider whether, viewing the allegations of the complaint most strongly in Liberty National’s favor, Liberty National could prove any set of circumstances that would show that UAB has injured Liberty National’s legally protected rights. Given our subsequent disposition of Liberty National’s claim premised on an alleged violation of § 22-21-7, Ala.Code 1975, we affirm the trial judge’s judgment insofar as it found that Liberty National lacked standing to bring that claim.

However, given the broad standard used to determine standing, we cannot conclude that there is no possible situation in which Liberty National might show the requisite injury as to its other claims. See by way of analogy and example, the elements required for proof of the tort of intentional interference with business relations in Folmar & Associates LLP v. Holberg, 776 So.2d 112, 115 (Ala.2000) (“ ‘(1) The existence of a contract or business relation; (2) Defendant’s knowledge of the contract or business relation; (3) Intentional interference by the defendant with the contract or business relation; (4) Absence of justification for the defendant’s interference; and (5) Damage to the plaintiff as a result of defendant’s interference.’ ” (quoting Gross v. Lowder Realty Better Homes & Gardens, 494 So.2d 590 (Ala.1986))). As noted, UAB does not raise a standing issue as to Liberty National’s claim alleging intentional interference with contractual or business relationships. Accordingly, we will not affirm the trial court’s dismissal of the entire complaint upon a rationale that Liberty National lacked standing to bring any aspect of it.

Nonetheless, this Court will affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court. Ex parte Ryals, 773 So.2d 1011 (Ala.2000), citing Ex parte Wiginton, 743 So.2d 1071 (Ala.1999), and Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). This rule fails in application only where due-process constraints require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment, Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458 (Ala.2002), or where a summary-judgment movant has not asserted before the trial court a failure of the nonmovant’s evidence on an element of a claim or defense and therefore has not shifted the burden of producing substantial evidence in support of that element, Rector v. Better Houses, Inc., 820 So.2d 75, 80 (Ala.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and Kennedy v. Western Sizzlin Corp., 857 So.2d 71 (Ala.2003)).

Liberty National contends that this Court cannot affirm the trial court’s judgment based upon any of the other grounds of UAB’s motion to dismiss. Those other grounds, as argued by UAB in its brief to this Court, are that Liberty National policyholders are “necessary parties” who must be joined in the action pursuant to Rule 19, Ala.R.Civ.P.; that Liberty National has failed to state a claim upon which relief can be granted as to its respective claims of prima facie tort and intentional interference with contractual and/or business relationships; that there has been no violation of Ala.Code § 22-21-7; and that UAB is protected by the doctrine of sovereign immunity.

Accordingly, we consider those arguments, starting with whether the trial court’s judgment is sustainable by application of the joinder requirements of Rule 19, Ala.R.Civ.P.

Rule 19 states, in part:

“(a) Persons to be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party....
“(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der.”

We have discussed the application of Rule 19 as follows:

“‘Rule 19, Ala.R.Civ.P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala.1979).’ ”

Dawkins v. Walker, 794 So.2d 333, 336 (Ala.2001) (quoting Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991)).

“Rule 19, [Ala.]R.Civ.P., provides a two-step process for the trial court to follow in determining whether a party is necessary or indispensable. Ross v. Luton, 456 So.2d 249, 256 (Ala.1984), citing Note, Rule 19 in Alabama, 33 Ala. L.Rev. 439, 446 (1982). First, the court must determine whether the absentee is one who should be joined if feasible under subdivision (a). If the court determines that the absentee should be joined but cannot be made a party, the provisions of (b) are used to determine whether an action can proceed in the absence of such a person. Loving v. Wilson, 494 So.2d 68 (Ala.1986); Ross v. Luton, 456 So.2d 249 (Ala.1984). It is the plaintiffs duty under this rule to join as a party anyone required to be joined. J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834 (Ala.1981).
“ ‘If such persons are not joined, the plaintiff must, under subsection (c) of Rule 19, [Ala.R.Civ.P.], state their names and the reasons why they are not joined. If there is a failure to join a person needed for just adjudication by a litigant then under subsection (a) of Rule 19, the trial court shall order that he be made a party.’
406 So.2d at 849-50. (Emphasis added [in Holland ].)
“We note that the interest to be protected must be a legally protected interest, not just a financial interest. Ross, supra; see Realty Growth Investors v. Commercial & Indus. Bank, 370 So.2d 297 (Ala.Civ.App.1979), cert. denied, 370 So.2d 306 (Ala.1979). There is no prescribed formula for determining whether a party is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J.R. McClenney & Son v. Reimer, 435 So.2d 50 (Ala.1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).”

Holland v. City of Alabaster, 566 So.2d 224, 226-27 (Ala.1990) (emphasis omitted). “The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.” J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala.1981). See also Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 (Ala.1994) (Almon, J., concurring in part and dissenting in part).

“ ‘[0]n a motion under Rule 12(b)(7), the court initially will determine if the absentee should be joined as a party in accordance with the criteria set forth in Rule 19(a). If it decides in the affirmative, the court will order him brought into the action. When the absentee cannot be joined, the court must then determine, by analyzing the factors described in Rule 19(b) whether to proceed without him or to dismiss the action.’ ”

Britnell v. Alabama State Bd. of Educ., 374 So.2d 282, 285 (Ala.1979), (quoting 7 C. Wright & A. Miller & M. Kane, Federal Practice and Procedure: Civil § 1609, Rule 19). Thus, a critical question is whether the Liberty National policyholders who have primary insurance coverage through Medicare or some other source entitled by law or contract to fully satisfy UAB’s actual charges by payment of an amount less than those actual charges are necessary parties to Liberty National’s action.

Liberty National entered into contracts with its policyholders pursuant to which it agreed that it would pay them, depending on the particular policy, either the “expenses incurred” or the. “actual charges” that arose from covered cancer treatments. UAB contends that the relief Liberty National is seeking will have the direct effect of reducing the amounts Liberty National is contractually obligated to pay its policyholders. Liberty National argues that the “actual charges” UAB generates using Charge Master are not the “expenses incurred” or the “actual charges” of the health-care services UAB provides to patients who have Medicare or some other primary insurance coverage. Clearly, Liberty National seeks to reduce the amount it has to pay its policyholders who are covered by those forms of primary insurance for health-care services provided by UAB, to the amount UAB accepts as full payment for those services. If Liberty National is successful in that regard, policyholders will experience a reduction in the amount of benefits now payable to them for cancer treatments, to whatever amount UAB accepts as full payment.

Liberty National contends that the interests of those policyholders are “merely financial” rather than legally protected, and, therefore, that those policyholders are not necessary parties to this action. In Ross v. Luton, 456 So.2d 249, 256 (Ala.1984), this Court quoted the following statement:

“ ‘The “interest relating to the subject matter of the action” that makes an absent person a party needed for just adjudication must be a legally protected interest, not merely a financial interest or interest of convenience.’ 3A J. Moore & J. Lucas, Moore’s Federal Practice § 19.07 — 1[2] at 19-129 (2d. ed.1982); Realty Growth Investors v. Commercial & Industrial Bank of Memphis, Tennessee, 370 So.2d 297, 304 (Ala.Civ.App.), cert. denied, 370 So.2d 306 (Ala.1979).”

In Ross, a landowner, Ross, entered into a contract to provide water from a well on his land to Smiths Water Authority. The withdrawal of water from Ross’s well depleted the surrounding water table to an extent that neighboring landowners could not obtain water from their wells, and various landowners sued Ross. After suffering an adverse judgment, Ross appealed, arguing, among other things, that the trial court had erred in not granting his motion seeking to join Smiths Water Authority and the City of Phenix City as indispensable parties under Rule 19, Ala. R.Civ.P. This Court analyzed that issue as follows:

“Phenix City, as the operator of a competing utility system, has merely a financial interest relating to the subject matter of this case and is not a party that should have been joined under Rule 19(a). Smiths, by entering into a contract to purchase water from Ross, has a legally protected interest relating to the subject matter of this case and is so situated that the disposition of this case in its absence may as a practical matter impair or impede its ability to protect that interest. Smiths is a party that should have been joined if feasible under Rule 19(a), so we must proceed with the analysis required by Rule 19 and deter-, mine whether Smiths is an indispensable party under Rule 19(b).”

456 So.2d at 256-57.

Liberty National policyholders do have not merely a secondary financial interest in the manner in which UAJB bills patients for cancer treatments and the manner in which Liberty National pays those bills, but a financial interest that arises from their contracts with Liberty National. Under those contracts the policyholders agree to pay premiums to Liberty National and, in the event a policyholder is diagnosed with cancer, Liberty National agrees to pay the policyholder either the “expenses incurred” by the policyholder for the cancer treatment or the “actual charges” charged by the health-care provider.

As it did in Ross, this Court has recognized in several other cases that an interest created by a contract is a legally protected interest. See BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So.2d 203 (Ala.2001), citing Electronics Store, Inc. v. Céli-co P’ship, 127 Md.App. 385, 732 A.2d 980, 981 (1999). See also Strojnik v. General Ins. Co. of America, 201 Ariz. 430, 434, 36 P.3d 1200, 1204 (Ct.App.2001) (an interest created by a contract is a legally protected interest). We therefore conclude that the subject policyholders have a legally protected interest that will be affected by the outcome of Liberty National’s asserted claims. Additionally, if those policyholders are not joined in this action and are not bound by its outcome, the issue whether Liberty National may reduce the amount of cancer benefits it provides those policyholders under its cancer policies, in the event of an outcome favorable to Liberty National, could be subject to relitigation by a policyholder, potentially resulting in an outcome inconsistent with the outcome of this case. Boles v. Autery, 554 So.2d 959 (Ala.1989) (county deemed indispensable party to an action brought by landowners against purchasers of nearby property seeking a determination of whether a road being used by the purchasers was private and not public, because results of later litigation on the issue might be inconsistent with results of that initial litigation). Accordingly, we conclude that the group of Liberty National policyholders composed of persons who have primary health insurance coverage of the sort discussed are necessary parties within the meaning of Rule 19(a), Ala.R.Civ.P.

We must further consider, however, whether the joinder of this group of policyholders is feasible. In order to make a determination as to the feasibility of joinder under Rule 19, Ala.R.Civ.P., a court must consider whether the absentee party is subject to service of process, whether the absentee party’s joinder will deprive the trial court of subject-matter jurisdiction, or whether the absentee party makes a valid objection to the court’s venue after joinder. See 3 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 1604 (2001). See also Tick v. Cohen, 787 F.2d 1490, 1493-94 (11th Cir.1986) (“Limitations on service of process, subject matter jurisdiction, and venue ... may bar joinder in some cases.”); Potts v. Gordon, 34 Colo.App. 128, 134, 525 P.2d 500, 503-04 (1974), citing C. Wright & A. Miller, Federal Practice and Procedure § 1604 (“Joinder is ‘feasible’ under [Rule 19, Colo.R.Civ.P., substantially similar to Rule 19, Ala.R.Civ.P] as long as the absentee is subject to service of process; his joinder will not deprive the court of jurisdiction; and he has no valid objection to venue of the court.”). In this case, the record is devoid of information sufficient to inform us as to the feasibility of joinder of the affected Liberty National policyholders. Accordingly, the trial court would have to conduct further proceedings to develop that information and make a finding as to the feasibility of joinder, before the issue would be ripe for appellate review.

Liberty National also contends that this Court cannot affirm the trial court’s judgment based upon UAB’s argument that Alabama law does not recognize a cause of action for prima facie tort. Liberty National describes its theory of prima facie tort as a tort theory designed to “ensure that no legitimately aggrieved party is denied justice because, by happenstance, its claim does not fall neatly within a traditionally recognized category of tort liability.” (Liberty National’s brief, p. 44.) Liberty National quotes the following formulation of the prima facie tort from the Restatement (Second) of Torts: “One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor’s conduct does not come within a traditional category of tort liability.” Restatement (Second) of Torts § 870 (1977). Liberty National asserts that UAB’s billing practice satisfies all of the characteristics of a prima facie tort of the sort recognized by a number of courts in other jurisdictions, as well as by the Restatement (Second) of Torts. Liberty National also argues, relying on our decision in Polytec, Inc. v. Utah Foam Products, 439 So.2d 683 (Ala.1983), that this Court, like the trial court, “need not and should not” address UAB’s argument opposing its prima facie tort claim and “need not and should not” determine whether a cause of action for prima facie tort should be recognized under Alabama law.

In Polytec, the defendant appealed from the dismissal of two of the three counts in its counterclaim, and the plaintiff appealed from the refusal of the trial court to dismiss the third count. This Court declined to address the prima facie tort theory argued by the defendant/counterclaimant as one of several bases for overturning the dismissal of one count of the counterclaim because that count stated the cognizable tort of “wrongful interference with business.” Any right to recover under a prima facie tort theory was deemed to “co-inciden more or less” with the business-interference theory. 439 So.2d at 689. This Court concluded that a discussion of whether a cause of action existed for prima facie tort would be' “premature and unnecessary” because such a cause of action was not supported by precedent in this State and the business-interference claim was supported by “ample precedent.” 439 So.2d at 690.

Liberty National likewise asserts a claim alleging interference with business, which UAB never moved to dismiss. In light of our holding in Polytec, the presence in the case of the alternative claim alleging business interference, and the early stage of this case, we do not determine whether a claim for prima facie tort should be a recognized cause of action in this State under the claims and factual underpinnings involved here.

Liberty National argues that the trial court’s order of dismissal cannot be affirmed on the basis of UAB’s contention relating to Ala.Code 1975, § 22-21-7. In its motion to dismiss, UAB asserted that § 22-21-7 neither created nor implied a private cause of action. “ ‘One claiming a private right of action within a statutory scheme must show clear and convincing evidence of legislative intent to impose civil liability for a violation of the statute.’ American Auto. Ins. Col v. McDonald, 812 So.2d 309, 311 (Ala.2001). C.B. v. Bobo, 659 So.2d 98 (Ala.1995).” Blockbuster, Inc. v. White, 819 So.2d 43, 44 (Ala.2001). Section 22-21-7 states, in pertinent part:

“(a) For the purposes of this section, the term ‘hospital’ shall mean any hospital in which human patients are given medical care. It shall include all emergency rooms or outpatient facilities connected thereto.
“(b) Within 10 days following discharge or release from confinement in a hospital or nursing home, or within 10 days after the earliest date at which the expense from the confinement or service may be determined, which in the case of long-term confinement may be the monthly charge, the hospital or nursing home providing the service shall submit to the patient, or to his survivor or legal guardian as may be appropriate, upon written request, an itemized statement detailing in language comprehensible to an ordinary layman the specific nature of charges or expenses incurred by the patient, which in the initial billing shall contain a statement of specific services received and expenses incurred for each such item of service, enumerating in detail the constituent components of the services received within each department of the hospital or nursing home and including unit-price data on rates charged by the hospital or nursing home. This statement shall not include charges of hospital based or nursing home based physicians if billed separately.
“(e) The Attorney General shall maintain an action in the name of the state for an injunction to restrain any person, firm, association or corporation from operating, conducting or managing a hospital in violation of the provisions of this section if and when violations are brought to his attention by an individual after a due process of law procedure has been followed.
“(g) Hospitals can print information on the statement as to the procedure that must be followed by insurance companies relating to the payment of claims made by persons in possession of the statement referred to in subsection (b) of this section. An addendum which prohibits insurance companies from paying to the patient any amounts due the hospital by the patient is acceptable. Any insurance company making a payment to the patient without positive validation from appropriate hospital officials shall be held liable for such payment to the hospital and shall be guilty of a misdemeanor.”

The statute contains no language suggesting that the Legislature intended to create a private cause of action for any violation of those provisions. The Legislature expressly reserved to the attorney general a cause of action for such violations, and Liberty National has presented no evidence to support the idea that § 22-21-7 creates or implies a private cause of action. American Auto Ins. Co., supra. Accordingly, we conclude that Liberty National is not a party entitled to bring a private action for an alleged breach of § 22-21-7.

Liberty National further asserts that UAB’s argument that UAB Hospital is protected by the doctrine of sovereign immunity does not provide a sufficient basis on which to affirm the trial court.

“The State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority. Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala.1979). Recently, this Court restated long-settled principles concerning the immunity of the State of Alabama from suit and the precedent, firmly supported by the doctrine of stare decisis, which holds that an action contrary to the State’s immunity is an action, over which the courts of this State lack subject-matter jurisdiction. In Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d 432 (Ala.2001), this Court held:
“ ‘The long-standing legal principle of state sovereign immunity is written into Alabama’s Constitution. “Article I, § 14, Alabama Constitution of 1901, provides that ‘the State of Alabama shall never be made a defendant in any . court of law or equity.’ Under this provision, the State and its agencies have absolute immunity from suit in any court.” Ex parte Franklin County Dep’t of Human Res., 674 So.2d 1277, 1279 (Ala.1996) (citing Barnes v. Dale, 530 So.2d 770 (Ala.1988)). Neither the State nor the Alabama State Port Authority has the power to waive that immunity:
“ ‘ “It is familiar law in this state that § 14 ‘wholly withdraws from the Legislature, or any other state authority, the power to give consent to a suit against the state.’ Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 376, 175 So. 383, 386 (1937). This Court has recognized the ‘ “almost invincible” “wall” of the state’s immunity, as established “by the people through their Constitution.” ’ Jones v. Alabama State Docks, 443 So.2d [902] at 905 [(Ala. 1983)], quoting Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971). Therefore, it is clear that neither the [Legislature nor the State Docks had the power to waive, either expressly or impliedly, the state’s immunity under § 14 and thereby consent to a damages action against the state.”

‘“Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala.1994). (See Ex parte Cranman, 792 So.2d 392 (Ala.2000), for history and background regarding the development of state-agent immunity.) Article I, § 14, of the Alabama Constitution of 1901 thus removes subject-matter jurisdiction from the courts when an action is determined to be one against the State.

“‘“We have held that the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution. J.R. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560 [(1939)]. And this court has said that it will take notice of the question of jurisdiction at any time or even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11 [(1955)]; Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273 [(1936)]. Therefore, it appears that a trial court or an appellate court should, at any stage of the proceedings, dismiss a suit when it becomes convinced that it is a suit against the State and contrary to Sec. 14 of the Constitution.”
‘Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 678 (1971). This constitutionally guaranteed principle of sovereign immunity, acting as a jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without jurisdiction, a court has no power to act and must dismiss the action. “‘The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.’ ” Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984) (quoting Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967)). If an Alabama court has jurisdiction to hear Lyles’s action, it must come through some abrogation of the State’s immunity.’
797 So.2d at 434-35.”

Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363-64 (Ala.2001).

Liberty National’s complaint describes “University of Alabama at Birmingham” as “an affiliate of the University of Alabama” and UAB Hospital as “a division (and/or component) of the University of Alabama at Birmingham.” As noted earlier, UAB represents that UAB Hospital is properly designated only as the “Board of Trustees of the University of Alabama for its Division, University Hospital.” The University of Alabama is a State university. “This Court has held that the operation of a hospital by a state university falls within the realm of sovereign immunity. Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971).” Sarradett v. University of South Alabama Med. Ctr., 484 So.2d 426, 426 (Ala.1986). Therefore, UAB Hospital is protected by the doctrine of sovereign immunity from Liberty National’s claims against it.

Although UAB asserts a sovereign-immunity barrier only on behalf of UAB Hospital, because subject-matter jurisdiction is implicated by that doctrine, Ex parte Alabama Dep’t of Mental Health & Retardation, 837 So.2d 808, 811 (Ala. 2002) (sovereign immunity is a jurisdictional bar that precludes a court from exercising subject-matter jurisdiction), we must consider whether the UAB Health Services Foundation and UAB Health System enjoy that immunity. ‘“The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over the person, or the subject matter, a court has no power to act....’” Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984) (quoting Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967), in turn citing Rinehart v. Reliance Life Ins. Co. of Georgia, 272 Ala. 93, 128 So.2d 503 (1961)). See also Hoppers C. v. Gulf Welding & Constr. Inc., 285 Ala. 331, 231 So.2d 896 (1970), and B.F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967). “ ‘[I]t is the duty of an appellate court to consider the lack of subject matter jurisdiction ex mero motu.’ Thompson v. Board of Pardons & Paroles, 806 So.2d 374, 375 (Ala.2001), quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983). The UAB Health Services Foundation is a nonprofit, independent professional corporation that, in part, attends to the billing for UAB Hospital. See University of Alabama Health Servs. Found., P.C. v. Bush, 638 So.2d 794, 798 (Ala.1994), and Wendy’s Int’l, Inc. v. City of Birmingham, 868 F.2d 433, 434 (11th Cir.1989). The complaint, the parties submissions to the trial court, and the briefs submitted to this Court do not state what type of entity UAB Health System is or the purpose it serves. Accordingly, we conclude that because the UAB Health Services Foundation and the UAB Health System are entities separate and distinct from UAB Hospital and have not been shown to qualify for sovereign immunity, they are not protected by that doctrine.

In summation, we conclude that under the facts and arguments presented there could not exist a possible situation in which Liberty National might show an injury to a legally protected right sufficient to provide the necessary standing to bring its claims, other than its claims dependent on a private cause of action for a violation of § 22-21-7, Ala.Code 1975. We also conclude, however, that § 22-21-7 neither creates nor implies a private cause of action. We conclude that resolution of the issue whether this Court should recognize a cause of action for prima facie tort would be premature and unnecessary. We determine that Liberty National policyholders within the stated group are “necessary parties” to this action and it is for the trial court to determine whether their joinder will be feasible pursuant to Rule 19, Ala. R.Civ.P. We conclude that UAB Hospital is protected by the doctrine of sovereign immunity from Liberty National’s claims against it but that the UAB Health Services Foundation and the UAB Health System are not so protected.

For the forgoing reasons, the judgment of the trial court is affirmed in part and reversed in part and the case remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

      . A "prima facie tort” is "[a]n unjustified, intentional infliction of harm on another person, resulting in damages, by one or more acts that would otherwise be lawful.” Black’s Law Dictionary 1497 (7th ed.1999).

      . Section 22-21-7 lists a variety of general billing requirements applicable to hospitals and other health-care facilities.

      . The record does not reveal the number of cancer policies Liberty National had outstanding that were not no dollar limit policies.

      . Liberty National and UAB have not entered into such an agreement.

      . Although we base our determination upon the conclusion that Liberty National’s policyholders who are directly financially affected by its claims are necessary parties under Rule 19, we note that Liberty National suggests that all of its policyholders might be neces-saty parties. That is, Liberty National states in its complaint that as a result of UAB's billing practice, Liberty National is forced to increase the premiums paid for existing cancer policies by all policyholders, which often leads to some policyholders allowing their policies to lapse, thereby causing them to forgo any potential benefit from the premiums they have previously paid.

      6. UAB asserted in its motion to dismiss that neither the UAB Health Services Foundation nor the UAB Health System could be designated a hospital or a nursing home.

      . Liberty National also presents a negligence-per-se argument on the basis that the class § 22-21-7 was enacted to protect includes health insurers. However, because we have concluded that that statute does not create or imply a private cause of action, we need not address that assertion.

      . As to UAB's sovereign-immunity argument, Liberty National asserts that such immunity does not protect the State from the following, all of which Liberty National contends it is seeking as relief from this Court: (1) "[a]c-tions brought to compel State officials to perform their legal duties”; (2) "[ajctions to compel state officials to perform ministerial acts”; or (3) “[ajctions brought under the Declaratoiy Judgments Act, ... seeking construction of a statute and how it should be applied in a given situation.” Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002). Liberty National states that it seeks to compel UAB to perform ministerial acts, which "constitute 'legal duties' ” to be truthful in compliance with § 22-21-7. Additionally, the declaratory relief Liberty National seeks is solely a construction of § 22-21-7 and a determination of how it should be applied in this case. Because we have concluded that § 22-21-7 neither creates nor implies a private cause of action, the exceptions to the doctrine of sovereign immunity do not come into play.


author: YATES, Presiding Judge. CRAWLEY, Judge,

text:
    S.B.L. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2011227.
    Court of Civil Appeals of Alabama.
    June 13, 2003.
    Rehearing Denied Aug. 15, 2003.
    Certiorari Denied Nov. 7, 2003 Alabama Supreme Court 1021990.

      Timothy C. Burgess of Burnham, Kline-felter & Burgess, PC, Anniston, for appellant.
    William H. Pryor, Jr., atty. gen., J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill and Connie M. Carraway, asst, attys. gen., Department of Human Resources, for appellee.
   YATES, Presiding Judge.

This case involves the termination of the parental rights of the mother, S.B.L., as to her two minor children, C.D.B. and T.S.B. The children do not have the same father. Both fathers’ parental rights were also terminated. On August 23, 2000, and August 1, 2001, respectively, the Cleburne County Department of Human Resources (“DHR”) petitioned for permanent custody of both the children, who had been declared dependent by the court in November 1998.

After a permanency hearing on October 26, 2000, the court determined that continued placement in the mother’s home would be contrary to the children’s bests interests; that reasonable efforts had been made by DHR to prevent or eliminate the need for removal of the children from the home; and that reasonable efforts had also been made by DHR to reunite the, children with their family and that those efforts had failed. Thus, the court decided that the most appropriate permanent plan was to pursue termination of parental rights. On July 31, 2001, the court denied the mother’s request for relative placement; the court based its decision on testimony, exhibits, and the report of the guardian ad litem, which stated that relative placement would not be in the best interests of the children.

Following ore tenus proceedings on January 11, 2002, and April 24, 2002, the court, on August 26, 2002, terminated the parental rights of S.B.L. and the two fathers, and it awarded DHR permanent custody of the children. In its order, the court found that the fathers had shown no interest in the children’s lives and had not participated in any attempt at reunification. It found that the mother had had a long history with DHR, during which she had been unstable and had suffered from alcohol addiction. Additionally, it determined that although the mother had displayed a short period of apparent stability her history indicated that she had not been capable or willing to demonstrate long-term stability. Last, the court found that the children had stabilized while in DHR’s custody and that removing the children and placing them with the mother would risk causing permanent irreversible harm to the children. The mother appeals.

She first argues that the trial court abused its discretion in terminating her parental rights, alleging that “there was no substantial evidence that she was unable or unwilling to discharge her responsibilities to and for the children or that her conduct was such as to render her unable to properly care for the children and that such conduct or condition is unlikely to change in the foreseeable future.” We disagree.

The termination of parental rights is governed by § 26-18-7(a), Ala.Code 1975, which provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

This court has stated that when ore tenus evidence is received in a case involving the termination of parental rights, the judgment of the trial court is presumed correct and will be set aside only if the record shows the judgment to be plainly and palpably wrong. L.A.G. v. State Dep’t of Human Res.,.681 So.2d 596, 598 (Ala.Civ.App.1996). “ ‘A natural parent has a prima facie right to the custody of his child, unless it can be proven by clear and convincing evidence that permanent removal of the child from the parent’s custody would serve the best interests of the child.’ ” Id. at 598 (citation omitted). The paramount concern of a court in termination-of-parental-rights proceedings is the best interests of the child. In determining a child’s best interests, a court must consider whether the parents are physically, financially, and mentally able to provide for the child. Id.

Additionally, when the State seeks to terminate a parent’s parental rights, the court must apply a two-pronged test: First, a court must find that there are grounds for the termination of parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990). Second, after the court has found that there exist grounds to support the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. Id. at 954. Once a court has complied with this two-pronged test, it may order the termination of parental rights. Id.

“Further, past history, as well as present circumstances, may properly be considered by the court in a termination proceeding. Fitzgerald v. Fitzgerald, 490 So.2d 4 (Ala.Civ.App.1986). Still further, the mother’s success or lack thereof in raising her other children] is a factor for the court to consider in determining whether the evidence supports the termination of parental rights. Hayes v. State Dep’t of Human Res., 563 So.2d 1035 (Ala.Civ.App.1990).”

J.R. v. D.A.M., 615 So.2d 609, 612 (Ala.Civ.App.1992).

The record reflects that S.B.L. had an extensive history with DHR, which began in 1981. She lost custody of her two older children in October 1991 because of circumstances similar to those in the present case.

In 1992 and 1996, respectively, the two minor children at issue in this case, C.D.B. and T.S.B., were born. In March 1998, a Child Abuse and Neglect (“CAN”) report was filed alleging that the children were dirty and not properly clothed; the children were found in a vehicle with S.B.L. and her new paramour, when S.B.L. and the man were stopped for driving under the influence of alcohol. S.B.L. was so inebriated that she was unable to provide family contacts so that the children could be temporarily placed. As a result, the children were placed in foster care by DHR. DHR returned the children to S.B.L. in September 1998. In November 1998, DHR encountered the children while responding to another CAN report that had been filed in October 1998, which alleged that C.D.B. had bruises on his body while living in the home of a maternal aunt. The children had reportedly been placed in the aunt’s care because S.B.L. had been incarcerated. Upon investigation, DHR found that the report was not correct as to the bruises; however, it found that housing was inadequate and placed the children in foster care until the mother’s release from jail. Following the children’s return to the mother’s care, DHR had received reports that a staff member at C.D.B.’s day-care provider had smelled alcohol on S.B.L.’s breath; that S.B.L.’s teenaged son had picked up C.D.B. from day care; and that C.D.B. had been visibly ill, with his eyes matted, filled with mucous, and bloodshot when he was brought to DHR facilities by S.B.L. to visit his father. In April 1999, the children were again removed from the home because another CAN report had been filed alleging that T.S.B. had seen the mother put beer into C.D.B.’s bottle and that parties with excessive drinking had occurred at the home. C.D.B. was placed with his father and T.S.B. was placed in foster care. C.D.B. was returned to foster care in August 1999.

In September 1999, the mother was referred to the Intensive Outpatient' Program (“IOP”) at New Directions for treatment of her alcohol addiction; in October 1999, she was terminated from the program because of lack of attendance.

The children were placed with a maternal aunt from October 1999 through January 2000. During this period S.B.L. did not maintain contact with DHR. The children were returned to foster care on February 1, 2000. On February 14, 2000, S.B.L. married for the third time. S.B.L. reported to DHR that she had separated from her third husband in April 2000, but they had reconciled by May 15. She stated that they had separated because he had refused to participate in the reunification process and because he had had an extramarital affair.

Marsha Busby, the case worker from November 1998 to May 2000, testified that DHR had compiled an Individual Service Plan (“ISP”) report in October 1999, detailing the goals that the mother would have to achieve in order to maintain a stable home for the children. The goals were to get a driver’s license; to be alcohol and drug free or to reach sobriety; to maintain contact with her children; to have rehable transportation; to have stable housing; to be selective in her friends; to maintain stable employment; to be able to financially and emotionally support her children; and to be emotionally healthy. Additionally, S.B.L. was to ensure that all members of the household remain alcohol and drug free and that she and any household members submit to random drug and alcohol testing. In April 2000, the ISP required S.B.L. to attend IOP classes and Alcoholics Anonymous (“AA”) meetings and to provide proof of her attendance. Busby stated that despite DHR’s assistance the mother had not accomplished the aforementioned goals. Busby recommended termination of parental rights.

Tracey Owen testified that she was the case worker from June 2000 to September 2001, during which time DHR was seeking to terminate parental rights. She testified that the mother had missed 17 visits with the children since she had been assigned to the case. She recalled two instances when she suspected that the mother had been drinking. Owen requested that the mother submit to alcohol screenings on both occasions, but she refused. Owen stated that the mother was on her fourth attempt at completing the New Directions IOP program and was attending marriage counseling when she was assigned to the case. She stated that although DHR had implemented both programs the mother did not complete either program. She stated that the mother claimed that she was attending AA meetings, but that DHR did not have evidence of regular attendance.

Owen testified that after the mother had permanently separated from her husband she had relocated twice. From August 2000 to December 31, 2000, the mother resided in a mobile home until it was burned down by an ex-boyfriend. She then relocated twice more, but at the time of the hearing she had resided at the same residence since August 2001.

Owen testified that the mother had had five jobs between June 2000 and September 2000, two of which she held for only three days before she was either terminated or quit. In October 2000, the mother reported to DHR that she was working two jobs; however, when Owen attempted to verify the information, she was told that the mother had never worked for either entity. The mother reported no employment from October 2000 to February 2001. In February 2001, she reported that she was employed. By June 2001, she was employed elsewhere. In August 2001, she reported that she held positions at two fast-food establishments in Piedmont. Owen recommended termination of parental rights.

Lisa Camp testified that she has been the case worker since January 2002. She testified that the mother had missed 11 visits since she had been assigned to the case; however, some were rescheduled. She visited the mother’s residence on two occasions and stated that it seemed appropriate. She testified that the mother was currently employed and that she had no concerns about her using alcohol or about the stability of the mother’s housing, finances, or employment. She recommended termination of parental rights based solely on the mother’s previous record. However, she stated that the children had stabilized with their foster parents and that the mother had not complied with court-ordered child-support payments.

Darlene Davis, a professional counselor, testified as an expert in the matter. She stated that one of the children had commented to her that the child had witnessed her mother engaged in sexual acts with different men and had witnessed the mother being physically abused by the same men. Davis supported the petition for termination of parental rights. She concluded that termination was preferable to long-term foster care because of the age of the children and because it provided a stable environment of being cared for, fed, sheltered, and clothed.

Greg Richards testified that he was the mother’s outpatient therapist from October 2000 to November 2001. He stated that he stopped treating her because of her absenteeism. As a result, he concluded that he was not able to properly treat the mother’s depression and alcoholism. He contended that the type of depression that the mother had been diagnosed with affects a person’s ability to care for children.

The mother testified that she had maintained a stable home and stable employment for 10 months before the termination hearing. She stated that she takes prescription drugs for heart trouble and depression, including Xanax and Zoloft. She stated that she did not see the point in attending the New Directions IOP program, adding that no one could control her recovery except her. When asked directly about her attendance at AA meetings during the 10 months before the hearing, she said that she went to AA meetings at her leisure, stating that, “I try to go at least once per week, I mean, the way I feel about it if once per week helps me, then that should be up to me. Nobody can tell me how many times to go seven days a week or whatever, you know.” (Emphasis added.) However, the record indicates that in January 2002, S.B.L. was questioned by DHR about her attendance at AA meetings; she replied, “I am not attending as I should.” She further stated before the hearing that she had not attended AA meetings since December 2001, which was only four months before the hearing. She did, however, admit to drinking when the last CAN report was filed and DHR took her children in 1999. She also admitted that DHR had removed her two older children from her home and had placed them in foster care. She stated that she had not complied with the 1999 ISP; however, she stated that she would be willing to comply with protective services in order to acquire custody of her children, including attending counseling for her and the children and submitting to drug screenings (i.e., the basic components of her ISP).

Next, the mother contends that the trial court erred because it failed to require DHR to make reasonable efforts toward reunification of the family. We disagree.

The record shows that DHR attempted to reunify the family numerous times to no avail. After DHR removed the children from the home of a maternal aunt in November 1998, the children were returned to the mother’s home upon her release from jail. Following a 30-day assessment, DHR implemented programs to address the mother’s alcoholism, instability, living situation, and lack of income. DHR determined that the mother was financially unstable, and it recommended the Family Options Program (“FOP”) as a solution. The FOP addressed household management, including basic needs for food, clothing, and shelter. DHR assigned a jobs case aide to the mother to counsel her and assist her in securing employment. The aide was able to assist her in finding a job at Hardee’s. However, the mother did not begin that employment because her boyfriend at the time demanded that she and the children leave his house immediately because he did not want them staying there any longer. Upon notification, DHR made immediate provisions for the mother and the children to live in a house, for which DHR would provide the deposit and first two months’ rent. However, the mother reconciled with her boyfriend and the children remained in her custody.

On February 14, 2000, the mother married another man. Approximately 3 months later, following a permanency hearing, the court gave the mother and her third husband a 90-day extension to demonstrate stability, for the mother to express her needs to DHR, and to comply with the ISP. Similarly, DHR also afforded her additional time to demonstrate stability. DHR conducted follow-up visits to the home and included the husband in the family planning and visitation. DHR also implemented marriage counseling for the couple.

Last, the mother argues that the trial court erred because it failed to require DHR to show that there were no viable alternatives to termination. We disagree.

We note that, “[t]he trial court must consider the best interest of the child when looking at less drastic alternatives.” Haag v. Cherokee County Dep’t of Pensions and Sec., 489 So.2d 586, 588 (Ala.Civ. App.1986).

The record indicates that DHR attempted to place the children with relatives, without success. As previously mentioned, the children had been placed with a maternal aunt; however, they were later removed when DHR determined that the home was substandard. From April 1999 to August 1999, one child was placed with his father; however, he was removed and placed in foster care because the father and his wife tested positive for drugs. DHR permitted the children to visit with their mother at another maternal aunt’s home until the aunt notified DHR that she could no longer take care of children because of health problems and did not desire a long-term commitment to the children. DHR again considered the other aunt for possible placement; however, after inspection, DHR determined that placement with that aunt was not in the best interests of the children. DHR based this conclusion on the aunt’s history with her own children, her past record involving C.D.B. and T.S.B., her lack of interest in maintaining medical examinations and treatment for the children, her failure to immunize and properly care for her animals, the number of CAN reports filed against her in the past, unsecured hazards on the property, and her lack of ability to provide security and protection from the mother.

Additionally, the court heard uncontra-dicted testimony that when T.S.B.’s father was contacted about the termination proceedings he indicated that the child was not his; he did not otherwise participate in the proceedings.

Last, the record reflects that no other relatives notified the court of any interest in having the children placed in their care and that the mother did not submit any names of relatives that were willing to be considered.

After reviewing the record, we cannot say that the trial court committed plain and palpable error in terminating the parental rights of the mother.

AFFIRMED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I do not believe that DHR established, by clear and convincing evidence, that the mother was unwilling or unable to discharge her responsibilities to the children or that the conditions that led to the children’s removal were unlikely to change in the foreseeable future. Therefore, I respectfully dissent.

The evidence was undisputed that, at the time of the termination hearing, the mother had had suitable housing and employment for 10 months. She had been sober for a year and was attending weekly AA meetings. The case workers admitted that the mother had apparently made a “turnaround.” They questioned only whether the turnaround would be permanent, given the mother’s longstanding problems with alcohol dependency and her failure to have completed “New Directions,” an intensive outpatient treatment program for substance abusers.

The mother testified that in December 2001 she consulted a mental-health professional who diagnosed her as suffering from major depression and prescribed her an antidepressant medication. The mother said she realized that she had probably had problems with depression since her teenage years. She also testified that she recognized that she had not made wise choices with regard to her male companions. She stated that the antidepressant medication was helping her, that she no longer had a desire to drink, and that she did not need a man in her life. The mother explained that she had not completed the New Directions substance-abuse program because the counselor of that program was “totally against taking any kind of medication” and, as the mother stated, “the medication that I’m on I can’t say it enough ... to me that’s the greatest thing that ever happened in my life as far as getting my life back together, being myself, or being like I always wanted to be.”

DHR decided to move for termination of the mother’s parental rights in 2000, but it postponed the matter for 90 days after the mother married her third husband, Mr. L., in February 2000. The record indicates that DHR decided to give the mother additional time to get her life in order because it thought Mr. L. was regularly employed, would be a good provider, and might be a stabilizing influence on the mother. The mother, however, left Mr. L. in June 2000 because, she said, he was drinking alcohol and selling marijuana.

This court has decided several parental-rights-termination cases in which the issue has been “whether the parent’s recent progress was substantial and consistent and, therefore, indicative of a •willingness and ability to maintain that progress, or whether the parent’s efforts were late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing.” J.D. v. Cherokee County Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App. 2003); see also P.W. v. State Dep’t of Human Res., 822 So.2d 423 (Ala.Civ.App. 2001); V.M. v. State Dep’t of Human Res., 710 So.2d 915 (Ala.Civ.App.1998); and Bowman v. State Dep’t of Human Res., 534 So.2d 304 (Ala.Civ.App.1988).

I recognize that this court cannot substitute its judgment for that of the trial court on questions of fact. However, in light of the mother’s recent progress, I do not believe that the evidence was clear and convincing that she was unwilling or unable to discharge her responsibilities to her children.


author: PITTMAN, Judge. CRAWLEY, Judge,

text:
    Bonita PERRY v. STATE PERSONNEL BOARD et al.
    2020275.
    Court of Civil Appeals of Alabama.
    July 3, 2003.
    Rehearing Denied Sept. 5, 2003.

      Bonita S. Perry, pro se.
    William H. Pryor, Jr., atty. gen., and Alice Ann Byrne, gen. counsel, for appellee State Personnel Board.
   PITTMAN, Judge.

Bonita Perry, a former employee of the Alabama Department of Corrections, appeals from a judgment of the Montgomery Circuit Court affirming a decision of the State Personnel Board upholding the termination of her employment on the basis that she had failed or refused to comply with her supervisor’s instruction to obtain a completed questionnaire from her medical provider concerning her ability to perform her job functions after Perry claimed to have a “disability” within the meaning of the federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“the ADA”).

The text of Perry’s brief on appeal reads as follows in its entirety:

“Bonita S. Perry appeals ORDER entered by the Montgomery County Circuit Court on November 6, 2002, (CV-98-3287-SH) to uphold the Pinal Agency Action by the State Personnel Board (‘SPB’) upholding the dismissal of the Petitioner, Appellant, Bonita S. Perry, from her employment with the Alabama Department of Corrections (‘DOC’).
“This appeal of final judgment of Circuit Court under Section 41-22-20[, Ala. Code 1975,] is brought pursuant to Alabama Rules of Appellate Procedure, Ala. R.App. P., Rule 1.
“Appellant requests appeal of Montgomery County Circuit Court ORDER that decision to uphold the Petitioner’s dismissal is affirmed and case dismissed with prejudice. Appellant requests that Court of Civil Appeals overrule Judge Shashy finding that State Personnel Board (‘SPB’) upholding the dismissal of the Petitioner/Appellant, Bonita S. Perry, from her employment with the Alabama Department of Corrections (‘DOC’) was ‘reasonable’ and that SPB decision to adoption [sic] the recommendation of Administrative Law Judge Meadows ‘that the Department had proved the charges forming the basis of the Employee’s termination by “substantial evidence” was reasonable “in light of the business carried on” by the Department.’
“Appellant is asking that the Court of Civil Appeals agree with Appellant’s assertion that SPB and the DOC’s actions in this matter were ‘unreasonable, arbitrary or eapricious[,]’ Screws v. Ballard, 574 So.2d 827 (Ala.Civ.App.1990). Under this standard of review, Appellant believes the Circuit Court order upholding SPB’s action should be overturned for the following reasons:
“I. Appellant not afforded full post-termination due process hearing until 347 days after dismissal. Hearing postponed ‘indefinitely’ by SPB Administrative Law Judge Meadows (ALJ) over employee’s objections.
“II. ALJ’s Findings of Facts that ‘the evidence shows employee refused to provide the information’ (RP 17) is clearly erroneous as shown in Appellant/Employee’s ‘Plain Statement of Facts and Issues’ (RP 43) to which there is no dispute by DOC (RP 39)
“III. Also ALJ’s Finding that ‘evidence shows DOC first became aware of Employee’s disability during course of suspension hearing (February 13, 1997)’ is also plainly in error as this information provided one year prior to on or about February 5, 1996 (RP 43)
“IV. ALJ’s refusal to recuse himself when requested by Appellant/Employee after ALJ’s being informed that ALJ was a defendant in a federal complaint filed by Appellant (RP 42).
“The above itemized in its totality is illustrative that ALJ was biased in his judgment and was acting arbitrarily, capricious and/or unreasonable [sic]. Further, Appellant relies on BRIEF AND ARGUMENT presented [by] Attorney for Petitioner submitted in Circuit Court of Montgomery County, Alabama, CV-98-3287. We, therefore ask that the ORDER of Montgomery County Circuit Court be overturned.”

Rule 28(a), Ala. R.App. P., provides that an appellate brief must contain, among other things, a statement of the case, a statement of the issues, a statement of the standard of review, a summary of the argument, and an argument that contains “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, [and] other authorities” upon which the appellant relies. Perry’s appellate brief contains no statement of the case, statement of the issues, statement of the standard of review, or summary of the argument, and her two-page argument cites one case for the general proposition that her termination was “ ‘unreasonable, arbitrary or capricious.’ ” Moreover, there is no legal authority provided in support of Perry’s contentions that holding her termination review hearing more than 10 months after her dismissal violated her due-process rights, that the Personnel Board’s administrative law judge (“ALJ”) made two allegedly unsupported factual findings, or that her naming the ALJ as a defendant in a federal lawsuit mandated the ALJ’s recusal.

Although Perry has attempted to incorporate by reference the brief she filed in the circuit court, Rule. 28 does not allow such a procedure. Rule 28(i), Ala. R.App. P., provides only for incorporation of arguments contained in other parties’ appellate briefs, not for incorporation of briefs filed in circuit courts. The federal appellate courts, construing the analogous Rule 28 of the Federal Rules of Appellate Procedure, have uniformly disallowed incorporation by reference of briefs filed in federal district courts, which are equivalent to our circuit courts. See Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448 (6th Cir.2003) (“ ‘[a] brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record,’ ” quoting DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999)); Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir.1998); Toney v. Gammon, 79 F.3d 693, 696 n.l (8th Cir.1996); Gilday v. Callahan, 59 F.3d 257, 273 n. 23 (1st Cir.1995); Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n. 6 (4th Cir.1994); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); and 16A Charles A. Wright et ah, Federal Practice & Procedure § 3974.5, at 532-33 (3d ed.1999). While the dissent correctly notes that we are not bound by such federal authorities, such authority is persuasive because our appellate rules are based on the Federal Rules of Appellate Procedure, which have been interpreted by the federal courts. See, e.g., Ex parte P &H Constr. Co., 723 So.2d 45, 47 (Ala.1998) (“we consider persuasive those federal cases construing Rules 3 and 4 of the Federal Rules of Appellate Procedure, which are very similar to Rules 3 and 4 of the Alabama Rules [of Appellate Procedure]”).

We conclude that Perry’s brief fails to substantially comply with Rule 28(a), Ala. R.App. P. “It is not the function of this court to search a record on appeal to find evidence to support a party’s argument,” and “it is not the function of the appellate court ‘to make and address legal arguments for a party based on undeli-neated general propositions not supported by sufficient authority or argument.’ ” Hughes v. Hughes, 754.So.2d 636, 637 (Ala.Civ.App.1999) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)). Where no authority is cited for an argument as to an issue, the trial court’s judgment may be affirmed as to that issue. See Spradlin v. Birmingham Airport Auth., 613 So.2d 347 (Ala.1993). Perry’s brief provides no basis for concluding that there is no evidence to support the decision of the Personnel Board, which is the pertinent inquiry. State Dep’t of Conservation & Natural Res. v. State Pers. Bd., 637 So.2d 894 (Ala.Civ.App.1994). Although Perry appears pro se in this court, and although counsel for the defendants in seeking an affirmance have not relied on the deficiencies in Perry’s appellate brief, it is nevertheless true that “a pro se litigant must comply with legal procedures and court rules” and that “[c]ourts are no more forgiving to pro se litigants than to those represented by counsel.” Schwartz v. Schwartz, 835 So.2d 1017, 1018 (Ala.Civ.App.2002).

Based upon Perry’s failure to comply with Rule 28, Ala. R.App. P., the judgment of the trial court is due to be affirmed.

AFFIRMED.

YATES, P.J., and THOMPSON, J., concur.

MURDOCK, J., concurs in the result.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I dissent from the majority’s affirmance, on the basis of Rule 28, Ala. R.App. P., of the circuit court’s decision upholding the Personnel Board’s termination of Perry’s employment. While I recognize that a pro se litigant is held to the same standard as a litigant represented by counsel, see Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991), I also recognize that our “appellate rules place emphasis on reaching the merits of litigation,” see Thoman Eng’rs, Inc. v. McDonald, 57 Ala.App. 287, 289, 328 So.2d 293, 295 (Ala.Civ.App.1976).

In McDonald, this court stated its duty with respect to the review of an appellant’s brief under Rule 28: “[T]o determine ... whether an issue on the merits has been raised in a manner which is fair to all concerned.” 57 Ala.App. at 290, 328 So.2d at 294-95. The McDonald court concluded that, despite the appellant’s noncompliant brief, it was fair to review the merits of the appeal because the appellee addressed the merits in its brief and “suffer[ed] no actual hardship due to [the appellant’s] omissions.” 57 AlaApp. at 290, 328 So.2d at 295. In this appeal, the briefs of the Department of Corrections and the Personnel Board also address the merits and do not mention either Rule 28 or any inability on their part to discern the issues. See also Kirksey v. Roberts, 613 So.2d 352, 353 (Ala.1993) (stating that our supreme court will consider a case on the merits even if the appellant’s brief fails to comply with Rule 28 if the court is able to discern the issues presented); Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987) (stating that, if the appellee adequately responds to the issues raised by the appellant in its brief, the court can consider the merits of the case despite the appellant’s failure to comply with Rule 28, in light of the preference for deciding cases on the merits).

Perry had a lawyer who filed a 45-page brief in the circuit court proceeding. That brief complies with Rule 28, Ala. R.App. P. The circuit court was not acting as a trial court; rather, it conducted a record review of the Personnel Board proceedings and a review of the briefs of the parties. This court is not bound by the holding of the United States Court of Appeals for the Sixth Circuit that disallows incorporation by reference of trial briefs. Moreover, the Sixth Circuit Court of Appeals’ case cited by the majority, Northland Insurance Co. v. Stewart Title Guar. Co., 327 F.3d 448 (6th Cir.2003), is distinguishable. In that case, the appellant “purport[ed] to incorporate by reference ... three different documents it filed with the [trial] court.” 327 F.3d at 452. The Sixth Circuit Court of Appeals stated:

“[The appellant] ... invites us to unearth its arguments lodged here and there in [a] joint appendix, leaving it to us to skip over repetitive material, to recognize and disregard any arguments that are now irrelevant, and to harmonize the arguments in the various documents.”

Id. In a parenthetical description of the holding in DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir.1999), the Sixth Circuit Court of Appeals stated: “ ‘A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.’ ” Id.

If it reviewed the case on its merits, this court would not be required to “unearth” anything. The appellant’s circuit court brief is easily accessible and contained in one place in the record. In keeping with the spirit of our appellate rules and the preference to decide cases on the merits whenever possible, I would address the merits of Perry’s appeal.

      . Regulation 222, Annex A, Ala. Admin. Code (Dep't of Corr.) provides for the sending of a letter to an employee who claims a disability under the ADA and for that employee to have his or her health-care provider fill out a four-question form seeking the health-care provider’s opinions regarding the nature of the employee’s claimed impairment and any possible accommodations thereof.


author: PER CURIAM.

text:
    Ex parte Bonita PERRY. (In re Bonita Perry v. State Personnel Board et al.).
    1022093.
    Supreme Court of Alabama.
    Nov. 7, 2003.
    Alvin T. Prestwood and Linda S. Well-man of Prestwood & Associates, P.C., Montgomery, for petitioner.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

HOUSTON, LYONS, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.