author: WOODALL, Justice.

text:
    Beth CHAPMAN, in her official capacity as Secretary of State of Alabama, et al. v. Richard GOODEN and Angela Thomas, on behalf of themselves and all others similarly situated.
    1051712.
    Supreme Court of Alabama.
    June 1, 2007.

      Troy Eng, atty. gen., and Kevin C. Newsom, deputy atty. gen., and James W. Davis, Margaret L. Fleming, and Misty S. Fairbanks, asst, attys. gen., for appellants.
    Edward Still of Edward Still Law Firm, LLC, Birmingham; Theodore M. Shaw, director, and Debo P. Adegbile and Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., New York, New York; and Samuel Spital of Holland & Knight, New York, New York, for appel-lees.
    S. Douglas Jones and Anil A. Mujumdar of Whatley Drake & Kallas, LLC, Birmingham; and Deborah Goldberg, Erika Wood, Renée Paradis, and Myrna Pérez of Brennan Center for Justice at New York University School of Law, New York, New York, for amici curiae Rev. Robert M. Alexander, Jr., Rev. Mary Bendall, Rev. Herbert Benson, Rev. Jerry E. Bledsoe, Rev. James Francis Brooks, Rev. Douglas Caddell, Rev. Reginald W. Calvert, Rev. Robert L. Cook, Rev. Solomon Crenshaw, Rev. J.W. Croom, Jr., Mr. Scott Douglas, Rev. G. Thomas Duley, Rev. James L. Evans, Rev. Wilson Fallin, Jr., Rev. K.C. Fink, Rev. Edgar Fisher, Rev. Thomas Earl Gilmore, Sr., Rev. Willie J. Gilmore, Jr., Rev. Perry Goins, Rev. Chris Hamlin, Rev. Tommy Hagler, Rev. P. Banneker Hatcherson, Rev. Dr. Lawton Higgs, Rev. Albert L. Hyche, Immanuel Presbyterian Church, Rev. Edward 0. Jackson, Dr. Stewart Jackson, Rev. David C. Jamison, Rev. Alfonza January, Sr., Rev. Fred Je-mison, Rev. J. Stephen Jones, Rev. W.J. Luster, Rev. Perry Macon, Rev. L.P. McA-dory, Mount Zion Baptist Church, Rev. Elizabeth O’Neill, Rev. Rick Owen, Rev. William Perry, Jr., Rev. Marion Russell, Sr., Saint John Missionary Baptist Church, Rev. Patrick Sellers, Rev. Walter Sims, Rev. Steve Small, Jr., Rev. Andra D. Sparks, The Ordinary People Society (T.O.P.S.), Pastor Vallie Thomas III, Rev. Charles W. Thomspon, Rev. Morrell Todd, Rev. S. William, Rev. Carlos D. Williams, Rev. Clasco P. Williams, Rev. H.L. Williams, Rev. Timothy D. Williams, and Rev. Gregory D. Woods.

      . When this appeal was filed, Nancy Worley was the Secretary of State. Beth Chapman succeeded her in that office in January 2007. See Rule 43(b), Ala. R.App. P. (“When a public officer is a party to an appeal ... in that officer's official capacity, and during its pen-dency dies, resigns, or otherwise ceases to hold office, the action shall not abate and the public officer's successor is automatically substituted as a party.”).

   WOODALL, Justice.

Secretary of State Beth Chapman, Jefferson County Registrar Nell Hunter, and the State of Alabama (collectively “the defendants”) appeal from a judgment in favor of Richard Gooden and Angela Thomas, as class representatives in a putative class action involving the voting rights of convicted felons. We reverse the judgment in part and dismiss the appeal in part.

In June 1996, the citizens of Alabama ratified Amendment No. 579 to Ala. Const. 1901, § 177. As amended, § 177 provides, in pertinent part:

“(a) Every citizen of the United States who has attained the age of eighteen years and has resided in this state and in a county thereof for the time provided by law, if registered as provided by law, shall have the right to vote in the county of his or her residence. The Legislature may prescribe reasonable and nondiscriminatory requirements as prerequisites to registration for voting. The Legislature shall, by statute, prescribe a procedure by which eligible citizens can register to vote.
“(b) No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability.”

(Emphasis added.)

On March 18, 2005, Attorney General Troy King issued an opinion in response to questions posed to him by William C. Seg-rest, then executive director of the Board of Pardons and Paroles (Op. Att’y Gen. 2005-092). Those questions, among others, in the order in which we think they apply here, were: (1) “If an individual has been convicted solely of [a felony not involving moral turpitude], does he or she remain eligible to vote?” (2) “Is an individual eligible under section 15-22-36.1 of the Code of Alabama to apply to the Pardons and Paroles Board for certification for eligibility to vote if he or she has not committed a crime involving moral turpitude?” and (3) “What specific felonies do not include moral turpitude?”

The opinion answered question one in the affirmative and question two in the negative. With regard to question two, it said: “If a person has been convicted of a felony that does not involve moral turpitude, that person remains eligible to vote and is therefore ineligible to apply for a Certificate of Eligibility to Register to vote.”

With regard to question three, the opinion stated, in pertinent part:

“Although this Office cannot provide an exhaustive list of every felony involving moral turpitude, we can provide a list of the crimes that Alabama courts have determined to be crimes involving moral turpitude. It is important to note that the following crimes will only prohibit a person from voting if that person has been convicted of a degree of one of these crimes that is considered a felony. The Alabama Supreme [Cjourt stated that murder, rape, burglary, robbery, and income tax evasion have all been found to be crimes involving moral turpitude. Ex parte McIntosh, 443 So.2d 1288 (Ala.1983) (citations omitted).
“In addition, forgery (Moton v. State, 13 Ala.App. 43, 69 So. 235 (1915)), conspiracy to commit fraud ([G.M. Mosley Contractors, Inc. v.] Phillips, 487 So.2d [876,] 879 [ (Ala.1986) ]), aggravated assault (Johnson v. State, 629 So.2d 708 (Ala.Crim.App.1993)), possession of marijuana for resale (McIntosh, 443 So.2d at 1286), sale of marijuana (Gholston v. State, 338 So.2d 454 (Ala.Crim.App.1976)), manslaughter (Johnson v. State, 357 So.2d 162 (Ala.Crim.App.1978)), theft (Johnson v. State, 292 Ala.208, 291 So.2d 336 (Ala.1974)), transporting stolen vehicles across state lines (Matthews v. State, [51 Ala.App. 417,] 286 So.2d 91 (Ala.Crim.App.1973)), unauthorized sale of a controlled substance (Ex parte Bankhead, 585 So.2d 112 (Ala.1991)), and bigamy (Lawson v. State, [33 Ala.App. 343,] 33 So.2d 388 (Ala.App.1948)) have all been held to be crimes involving moral turpitude.
“In addition, section 15-22-36.1 of the Code of Alabama provides the following list of felonies involving moral turpitude that will preclude an individual from applying to have his or her civil and political rights restored:
“ ‘A person who has lost his or her right to vote by reason of conviction in a state or federal court for any of the following will not be eligible to apply for a Certificate of Eligibility to Register to Vote under this section: Impeachment, murder, rape in any degree, sodomy in any degree, sexual abuse in any degree, incest, sexual torture, enticing a child to enter a vehicle for immoral purposes, soliciting a child by computer, production of obscene matter involving a minor, production of obscene matter, parents or guardians permitting children to engage in obscene matter, possession of obscene matter, possession with intent to distribute child pornography, or treason.’
“Ala.Code § 15-22-36.1(g) (Supp.2004) (emphasis added).
“Alabama courts have also discussed crimes that do not involve moral turpitude. In McIntosh, the Supreme Court stated that both assault and doing business without a license are not crimes involving moral turpitude. McIntosh, 443 So.2d at 1286. In addition, violation of liquor laws (Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967)), aiding prisoner to escape (now listed in the Alabama Code as permitting or facilitating escape) (McGovern v. State, 44 Ala.App. 197, 205 So.2d 247 (1967)), mere possession of marijuana (Neary v. State, 469 So.2d 1321 (Ala.Crim.App.1985)), and driving under the influence (Finley v. State, 661 So.2d 762 (Ala.Crim.App.1995)) have all been held to be crimes that do not involve moral turpitude.”

Op. Att’y Gen. 2005-092, pp. 3-4. On May 27, 2005, then Secretary of State Nancy Worley notified Hunter and every other voter registrar in the State that she was seeking advice from the attorney general regarding which felonies were disfranchising.

On September 29, 2005, Gooden filed a complaint in the Jefferson Circuit Court styled “complaint for declaratory judgment, temporary restraining order, mandatory injunction, and writ of mandamus.” Naming Nell Hunter and then Secretary of State Nancy Worley as defendants, Goo-den alleged that he “was registered to vote from the mid-1960s until 2000, when he was convicted of felony driving under the influence of alcohol (DUI), and [was] told by the State of Alabama that his voting rights were revoked.” More specifically, the complaint alleged, in pertinent part:

“11. The Board of Pardons and Paroles [‘the Board’] issued a press release ... upon information and belief, to effectuate the intent and substance of the attorney general’s opinion.... The press release noted that ... the Board ... ‘discovered that many eligible voters [were] unaware’ that they did not need a ‘certificate from this agency in order to register to vote.’ ‘Under the current law only felonies involving moral turpitude disqualify a person from voting. Convictions for other felonies do not disqualify a person from voting. If individuals who are already eligible to vote do not ask us for certificates, we can process the other applications more promptly.’ While the press release did not provide an exhaustive list of felonies involving moral turpitude, it noted that ‘felony driving under the influence’ and ‘felony possession of drugs’ are offenses that do not involve moral turpitude.
“12. Notwithstanding the dear direction provided by the attorney general’s opinion, and the press release that was issued by the [Board], local registrars represented to agents of [Goo-den’s] counsel that registrars in ... twenty counties ... were directed by the secretary of state not to register people with felony convictions — whether or not the felony involved moral turpitude — without a certificate of eligibility.
“13. On September 21, 2005, [Goo-den] attempted to register with [Hunter], but was told that he was ‘not eligible’ to register to vote because of his felony DUI conviction.
“14. [Gooden] was instructed by [Hunter] to apply to the [Board] for a certificate of eligibility.
“15. [Gooden] was told later that day (September 21, 2005) by an employee of the [Board] that since his felony DUI conviction did not involve moral turpitude, the attorney general had determined that he, and similarly situated individuals, need not apply for a certificate of eligibility since their voting rights were never lost.
“16. Upon information and belief, an employee of the [Board] telephoned [Hunter] on September 21, 2005, and explained that [Gooden] was not disqualified from voting since his felony conviction did not involve moral turpitude, and, therefore, that a certificate of eligibility was not necessary for him to register to vote. Upon information and belief, the employee of the [Board] also offered to fax [Hunter] a copy of the press release the Board had issued to this effect.
“17. Upon information and belief, notwithstanding [the Board’s] concession that [Gooden’s] felony DUI conviction did not involve moral turpitude, and that, in fact, his conviction was expressly identified in the attorney general’s opinion as [a] non-disqualifying crime, [Hunter] told the [Board] that the Defendant secretary of state had directed [her] not to register individuals with felony convictions who had not obtained a certificate of eligibility, irrespective of whether or not such felony convictions involved moral turpitude.”

(Emphasis added.)

Counts one and two of the complaint alleged a violation of § 177. In particular, count two alleged that registrars throughout the State, acting on a misrepresentation of the secretary of state, had refused to register individuals legally eligible to vote. Count three sought, pursuant to former Ala.Code 1975, § 17-4-124, a reversal of Hunter’s refusal to allow Gooden to register.

Under the heading, “prayer for relief,” the complaint stated:

“30. [Gooden] requests an order under [§ 17-4-124] reversing the refusal of [Hunter] to register him.
“31. [Gooden] seeks [a] declaratory judgment that individuals convicted of felonies not involving moral turpitude, as enumerated by the attorney general and grounded in Alabama case law, are eligible to register and vote under Alabama law, and that, accordingly, individuals with felony convictions not involving moral turpitude need not apply to the [Board] for a certificate of eligibility as a prerequisite to registering or voting in Alabama.
“32. [Gooden] requests a ... mandatory injunction ... to require [Hunter] to provide [him] and similarly situated individuals in Jefferson County, by Friday, September 30, 2005, the registration deadline for the October 11, 2005, municipal elections in Birmingham, Alabama, effective notice that individuals with felony convictions not involving moral turpitude are eligible to vote without a certificate of eligibility from the [Board].
“33. [Gooden] requests a ... mandatory injunction ... to require [Hunter] to register [him] and similarly situated individuals in Jefferson County, by Friday, September 30, 2005, the registration deadline for the October 11, 2005, municipal elections in Birmingham, Alabama.
“34. [Gooden] requests a ... mandatory injunction ... to require [the] secretary of state to provide effective notice to [Hunter] by September 30, 2005, and each of the other counties promptly, that individuals with felony convictions not involving moral turpitude, as enumerated by the attorney general, are eligible to register and vote, and are not required to apply for or obtain a certificate of eligibility from the [Board].
“35. [Gooden] requests a ... mandatory injunction ... to require [the] secretary of state to direct [Hunter] by September 30, 2005, and each of the other counties promptly, to permit individuals with felony convictions not involving moral turpitude, as enumerated by the attorney general, to register to vote and expressly state that such individuals are not required to apply for or obtain a certificate of eligibility from the [Board].
“36. [Gooden] requests a temporary restraining order and mandatory injunction to require [the] secretary of state to give notice to the public by (a) posting a prominent notice on the secretary of state website ... and (b) issuing a press release to all the usual news outlets notified by the secretary of state that persons who have been convicted of a felony which does not involve moral turpitude' [sic] and listing the examples of those crimes as discussed in the [opinion] of the attorney general, Ala. Op. Atty. Gen. No. 2005-092 (March 18, 2005).”

(Emphasis added.) The following day, September 30, 2005, the trial court entered an order directing Hunter, “upon a new application by plaintiff [Gooden], [to] register him as a voter as provided in Ala.Code [1975,] § [17-4-124].”

In November 2005, the secretary of state conducted a series of meetings with registrars throughout the State. Under the topic of “ex-felon registration,” she advised registrars at those meetings to “continue longstanding practice until [receipt of a] response by the attorney general” to her May 2005 inquiry.

On November 18, 2005, the attorney general, on behalf of the State of Alabama, moved to intervene in the case, contending that the State was the only proper party to respond to count three. Filed simultaneously with that motion was the “answer of the State of Alabama confessing judgment on count three of plaintiffs complaint.” (Emphasis added.) The answer acknowledged that Gooden’s felony conviction — driving under the influence — is not a crime involving moral turpitude, and, therefore, that he was not barred from registering and voting by § 177(b). The State “submit[ted] that [Gooden’s] remaining claims and requests for relief should be dismissed as moot and for lack of standing.” Also in November 2005, Hunter and the secretary of state each filed a motion to dismiss the action. Both parties asserted that the State’s confession of judgment in favor of Gooden rendered the action moot and deprived Gooden of standing.

On December 19, 2005, Gooden filed a “first amended complaint,” purporting to add as a plaintiff Andrew Jones, who, like Gooden, was a resident of Jefferson County. Jones alleged that he had been “informed by the State of Alabama” in the “early 1990s” that he was not eligible to vote because of a conviction for “felony possession of drugs.” He alleged that in June 2005 Hunter initially refused to allow "him to register, notwithstanding the fact that his felony conviction was for a crime not involving moral turpitude. However, Jones also alleged that before he joined this action he was allowed to register to vote.

The amended complaint also contained class allegations. Specifically, it sought certification of a class of plaintiffs consisting of “[a]ll unregistered persons otherwise eligible to register to vote in Alabama who have been convicted of one or more felonies, but who have not been convicted of any felonies involving moral turpitude.” It also sought certification of a defendant class consisting of “[a]ll voter registrars in the State of Alabama.” Other than the class allegations and the addition of Jones, the first amended complaint differed in no material respect from the original complaint.

On January 10, 2006, a copy of the attorney general’s March 18, 2005, opinion was sent to every board of registrars in the State, and the registrars were invited to seek the advice of the attorney general, if necessary, in determining whether a particular felony involved moral turpitude. By May 8, 2006, the secretary of state had promulgated revised voter-registration forms for statewide use. The new forms state, in pertinent part: “To register to vote in the State of Alabama, you must ... [n]ot have been convicted of a disqualifying felony, or if you have been convicted, you must have had your civil rights restored.” (Emphasis added.) Also on the revised forms, the registrant’s signature is required, by which he or she swears or affirms: “I am not barred from voting by reason of a disqualifying felony conviction.” (Emphasis added.) The word “felony” in the predecessor forms was not modified by the word “disqualifying.”

On May 8, 2006, Gooden and Jones filed a “second amended complaint,” asserting — for the first time — a violation of due process and/or equal protection under the United States Constitution. Specifically, count six alleged, in pertinent part:

“88. The promulgation and use of [the new ] voter registration forms ... is misleading and serves to discourage registration of persons who have been convicted of felonies not involving moral turpitude.
“89. The secretary of state violates section 177 of the Constitution of the State of Alabama by the promulgation and use of [the new registration forms].
“90. The secretary of state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States and Section 1 of the Constitution of the State of Alabama by the promulgation and use of [the new registration forms].”

(Emphasis added.)

The second amended complaint also sought an award of attorney fees under 42 U.S.C. § 1988. In other respects, the second amended complaint essentially restated the allegations of the previous complaints.

On May 26, 2006, Gooden and Jones filed a “third amended complaint,” which was superseded on June 9, 2006, when Gooden and Jones filed a fourth, and last, amended complaint, purporting to add plaintiff Angela Thomas, who, like Gooden and Jones, was a resident of Jefferson County. According to the last amended complaint, Hunter had removed Thomas’s name from the voter registry in 2003 following Thomas’s “conviction for possession of marijuana (first degree),” which is not a crime involving moral turpitude.

The last amended complaint differed little substantively from the second amended complaint. Under the heading “prayer for relief,” Gooden, Jones, and Thomas sought an order “reversing the defendants’ refusal to register them.” Relief sought under that heading also included an “injunction to require [the] secretary of state to give notice to the voter registrars of all felonies that have been declared to be crimes involving moral turpitude and all felonies that have been declared not to be crimes involving moral turpitude.” It also contained the federal constitutional claims set forth in count six of the second amended complaint.

On June 23, 2006, Hunter notified Thomas through counsel that Thomas was eligible to vote, notwithstanding her conviction, and that Thomas “should submit an application,” which would be accepted if she was “otherwise eligible.” Thereafter, on July 7, 2006, all the defendants moved for a summary judgment, arguing, among other things, that the case no longer involved a justiciable controversy because “what the plaintiffs [sought] to compel through injunction ha[d] already happened,” namely, that “the plaintiffs [were] all either registered to vote or ha [d] been informed that they [could] do so.” They further argued that the plaintiffs wanted (1) “the county Boards of Registrars to be given certain advice that they ha[d] already received”; (2) “a judgment declaring the law to be what all parties agree that it is”; and (3) “forms to be revised that have already been revised.” That same day, Gooden, Jones, and Thomas moved for a summary judgment on counts one, two, three, and six of their last amended complaint.

On August 23, 2006, the trial court entered a “class certification order and final order on all pending issues.” In so doing, it granted the attorney general’s motion to intervene and entered a summary judgment for the defendants on two counts of the last amended complaint. It also entered a summary judgment for the defendants on all Jones’s claims, on the ground that Jones lacked standing. Also, it held that Gooden’s individual claims were moot and that Thomas’s individual claims were time-barred.

Nevertheless, the trial judge certified a plaintiff class and a defendant class, before granting the plaintiffs declaratory and equitable relief. The plaintiff class was defined as “[e]very citizen of the United States, currently residing in this State and 18 years of age or older, who has at any time been convicted of a felony in any jurisdiction and who is not, as of the date of this order, registered to vote in this State.” He defined the defendant class as “[ejvery individual duly appointed and presently serving in an official capacity as a registrar for the purpose of conducting, supervising or otherwise regulating the registration of voters in the county where such individual resides.”

In paragraph 7 of the order, the judge stated:

“7. The court hereby declares that the policy and practice previously promulgated or employed by the defendants of denying voter registration to an individual otherwise qualified to vote, but who had been convicted of any felony, violated Amendment 579 to the Alabama Constitution. This policy and practice further violated the due process rights of the plaintiff class members provided by the Alabama Constitution. The named defendants, all members of the defendant class, and all those who work with or on behalf of any of the defendants or defendant class members, are ordered immediately to cease and desist in refusing voter registration on this basis.”

(First emphasis added.) According to Gooden and Thomas, “paragraph 7 of the circuit court’s order provided precisely the relief requested by the Plaintiffs.” Gooden and Thomas’s brief, at 49 n. 13 (emphasis added).

However, the trial judge went much further. He concluded that the “disfranchisement provision of [§ 177(b) ] authorizes the imposition of a criminal penalty,” and, consequently, could, consistent with the separation-of-powers provisions of the Alabama Constitution, be imposed only by the legislature. As a corollary, he concluded that the definition of moral turpitude is so vague as to invalidate disfranchisement on that basis, unless and until every felony involving that element has been expressly cataloged by the legislature. Specifically, he stated:

“8. Unless and until the Alabama Legislature passes, and the Governor signs into law, legislation specifically identifying which felonies involve moral turpitude ..., the named defendants, all members of the defendant class, and all those who work with or on behalf of any of the defendants or defendant class members, are enjoined from refusing to register any individual, otherwise qualified to vote, on the ground that the individual has previously been convicted of a felony.
“9. Unless and until the Alabama Legislature passes, and the Governor signs into law, legislation specifically identifying which felonies involve moral turpitude ..., the named defendants, all members of the defendant class, and all those who work with or on behalf of any of the defendants or defendant class members are enjoined from promulgating, distributing or employing voter registration application forms that refer in any way to a prior criminal conviction as a basis of disqualification. The defendant secretary of state is further ordered to revise existing voter registration application forms to delete any such references.
“10. Unless and until the Alabama Legislature passes, and the Governor signs into law, legislation specifically identifying which felonies involve moral turpitude ..., the named defendants, all members of the defendant class, and all those who work with or on behalf of any of the defendants or defendant class members, are enjoined from removing from voter lists any registered voter by reason of that voter’s conviction of a felony.”

(Emphasis added.) In other words, the trial court’s judgment requires that all felons who are otherwise qualified to vote be permitted to vote until the enactment and gubernatorial approval of a statute naming all disqualifying felonies. In essence, as a basis for the relief granted in paragraphs 8-10, the court held that § 177(b) deprives the plaintiffs of the due process guaranteed by Ala. Const.1901, §§ 6 and 13, in the absence of a complete catalog of disqualifying felonies supplied by the legislature.

Additionally, the court awarded attorney fees and expenses to the plaintiffs’ attorneys in the amount of $66,024. From that judgment, the defendants appealed. On appeal, they reiterate their argument that the claims asserted by Gooden and Thomas have become moot, and, therefore, that this case no longer involves a justiciable controversy. In that connection, they argue that Gooden and Thomas never challenged the constitutionality of § 177(b), “never claimed that the framework of [Amendment No. 579] violates [the] separation of powers or their rights to due process,” and “never briefed [such issues] in the trial court.” Defendants’ brief, at 49. Thus, they insist that the relief afforded in paragraphs 8-10 was never requested by Gooden and Thomas and was erroneously awarded. Finally, they challenge the award of attorney fees.

I. Justiciable Controversy

“‘A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned.’” Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006) (quoting American Fed’n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958)). “The test for mootness is commonly stated as whether the court’s action on the merits would affect the rights of the parties.” Crawford v. State, 153 S.W.3d 497, 501 (Tex.App.2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex.1993)). “A case becomes moot if at any stage there ceases to be an actual controversy between the parties.” Id. (emphasis added) (citing National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex.1999)).

“There must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under the declaratory judgment statutes, and if there was no justiciable controversy existing when the suit was commenced the trial court had no jurisdiction.” State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So.2d 106, 110 (1974). “ ‘ “Unless the trial court has before it a justiciable controversy, it lacks subject matter jurisdiction and any judgment entered by it is void ab initio.’”” Sustainable Forests, L.L.C. v. Alabama Power Co., 805 So.2d 681, 683 (Ala.2001) (quoting Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 272 (Ala.2000), quoting in turn Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998)). “A moot case lacks justiciability.” Crawford, 153 S.W.3d at 501. Thus, “[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.” Case, 939 So.2d at 884 (citing Employees of Montgomery County Sheriff’s Dep’t v. Marshall, 893 So.2d 326, 330 (Ala.2004)).

“ ‘The lack of a justiciable controversy may be raised either by a motion to dismiss, Rule 12, [Ala. R. Civ. P.], or a motion for summary judgment.’ ” Hornsby v. Sessions, 703 So.2d 932, 937 (Ala.1997)(quoting Smith v. Alabama Dry Dock & Shipbuilding Co., 293 Ala. 644, 649, 309 So.2d 424, 427 (1975)). Indeed, “[i]t is well settled that lack of subject-matter jurisdiction can be raised at any time by the parties or by the court ex mero motu.” Ex parte V.S., 918 So.2d 908, 912 (Ala.2005). “ ‘ “[I]f there is an absence of jurisdiction over ... the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be created by waiver or consent.” ’ ” Id. (quoting Flannigan v. Jordan, 871 So.2d 767, 768 (Ala.2003), quoting in turn Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967)). A court without subject-matter jurisdiction “ ‘may take no action other than to exercise its power to dismiss the action.... Any other action ... is null and void.’ ” State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999) (quoting Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996)). An outstanding request for attorney fees “does not resuscitate an otherwise moot controversy.” Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir.1996). See also Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990).

A. Paragraphs 8-10

We first address the defendants’ contention that the trial court erred in ordering relief in paragraphs 8-10 of its order based on an issue never joined by the parties, namely, the constitutionality of § 177(b). We recognize the rule that a “final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” Ala. R. Civ. P. 54(c). However, the rule has its limits:

“ ‘A court may not, without the consent of all persons affected, enter a judgment which goes beyond the claim asserted in the pleadings.... Unless all parties in interest are in court and have voluntarily litigated some issue not within the pleadings, the court can consider only the issues made by the pleadings, and the judgment may not extend beyond such issues nor beyond the scope of the relief demanded.
“ ‘The foregoing rules are all fundamental and state nothing more than the essentials of due process and of fair play. They assure to every person his day in court before judgment is pronounced against him.’ ”

Central Bank of Alabama, N.A. v. Ambrose, 435 So.2d 1203, 1206 (Ala.1983) (quoting Sylvan Beach, Inc. v. Koch, 140 F.2d 852, 861-62 (8th Cir.1944)). The question thus resolves itself to whether the relief given by the trial court is based upon issues that “were in the case.” 435 So.2d at 1207 (emphasis added).

In this same connection, it hardly bears repeating that without specific statutory authority not here applicable Alabama courts are not empowered to decide “abstract or hypothetical questions or render purely advisory opinions.” Alabama Dry Dock & Shipbuilding Co., 293 Ala. at 651, 309 So.2d at 429. Thus, aside from creating the due-process problems discussed in Ambrose, if a trial court undertakes to decide a question, other than one presented by the parties, it enters the area of the “abstract or hypothetical” and therefore acts beyond its authority.

The rationale for the relief granted in paragraphs 8-10 can be syllogized as follows: (1) § 177(b) purports to disfranchise convicted felons on the basis of whether the felony of which they are convicted involves moral turpitude; (2) disfranchisement is part of the punishment for the crime of which they were convicted; (3) the definition of moral turpitude is vague as applied on a case-by-case basis; (4) that vagueness creates confusion among voters and registrars as to who is entitled to the franchise; (5) the confusion may result in the disfranchisement of voters convicted of nondisqualifying felonies; (6) the disfranchisement deprives qualified voters of due process; therefore the deprivation can be cured only by a complete catalog of disqualifying crimes supplied in due course by the legislature — the only body empowered to define crimes and to set the punishment therefor. The trial court effectively held that the courts of Alabama have no power to decide whether a crime involves moral turpitude.

Whatever merit this syllogism might have in the abstract, it has no application to this case. This is so, because this case does not involve a dispute about how to distinguish between felonies that involve moral turpitude and those that do not; instead, it involves the secretary of state and Hunter, acting upon direction from the secretary of state, ignoring the distinction altogether and not attempting to apply the clear language of § 177(b). This fact is amply illustrated by the plaintiffs’ pleadings in the trial court and Gooden and Thomas’s arguments in this Court.

Although Gooden and Thomas have adapted their arguments in this Court to support the trial court’s holding that legislative direction is required, their pleadings extol the direction provided by the attorney general in his opinion. In paragraph 12 of the original complaint, for example, Gooden lauded the attorney general’s opinion of March 18, 2005, as providing “clear direction ” and states that, “notwithstanding [that] clear direction,” the secretary of state instructed Hunter and other registrars “not to register people with felony convictions — whether or not the felony involved moral turpitude.” (Emphasis added.) In paragraph 17 of the complaint, Gooden alleged that the secretary of state had directed Hunter “not to register individuals with felony convictions ... irrespective of whether or not such felony convictions involved moral turpitude,” and that he was not permitted to register “notwithstanding” the fact that “his conviction was expressly identified in the attorney general’s opinion as [a] non-disqualifying crime.” (Emphasis added.)

Those allegations were repeated in substantially identical terms in the last amended complaint. In addition, the last amended complaint alleged that Thomas “would have been registered but for the illegal policy of the defendants to disfranchise all persons convicted of any felony.” (Emphasis added.) The relief sought in paragraphs 100, 101, and 102 of the last amended complaint essentially mirrors the relief sought in the paragraphs 31, 34, and 35 of the original complaint, namely, that the court declare “individuals convicted of felonies not involving moral turpitude, as enumerated, by the attorney general ..., are eligible to vote” (emphasis added), and issue an injunction requiring the secretary of state to direct Hunter and other registrars “promptly to permit individuals with felony convictions not involving moral turpitude to register to vote.” Conspicuously absent is any allegation that Gooden, Thomas, or any putative class member was disfranchised as a result of any confusion over the particular nature of their felony. There was no allegation, for example, that any felon was erroneously allowed to vote notwithstanding that he or she had been convicted of a disqualifying felony.

Similarly, in their brief to this Court, Gooden and Thomas contend that the “[longstanding practice” of the registrars was that “of categorically disfranchising individuals who had any felony conviction.” Gooden and Thomas’s brief, at 13 (first emphasis added). They argue that “[b]y categorically disfranchising every person with a felony conviction without considering whether the felony in question involved moral turpitude, the Defendants have ... disregarded the substantive mandate of Section 177 of the Alabama Constitution.” Gooden and Thomas’s brief, at 17 (emphasis added).

- Significantly, Gooden and Thomas concede that paragraph 7 of the trial court’s order “provided precisely the relief’ they sought. Gooden and Thomas’s brief, at 49 n. 13 (emphasis added). However, the relief afforded in that paragraph was limited to (1) a declaration that “the policy and practice previously ... employed by the defendants of denying voter registration to an individual ... who had been convicted of any felony” (emphasis in original) violated the Alabama Constitution, and (2) an order that the defendants “cease and desist in refusing voter registration on [that] basis” (emphasis added). All matters relating to confusion over the meaning of the phrase “moral turpitude” were addressed in paragraphs 8-10 of the order. Gooden and Thomas’s concession as to the sufficiency of paragraph 7 belies any argument that they were complaining about the inability of the registrars to understand, that is, to correctly apply, the definition of “moral turpitude.”

Finally, there was no evidence indicating that anyone has been disfranchised as the result of a decision on the merits applying the definition of moral turpitude. On the contrary, it is undisputed that Gooden, Jones, and Thomas had been denied the right to register without any concern as to the specific nature of their felonies. Consequently, we can only conclude that this action did not arise out of, and does not involve, the constitutionality of § 177 as applied; any matters relating to the trial court’s syllogistic reasoning; or the purported evils that were the focus of paragraphs 8-10.

Because this case was never about the definition of moral turpitude, it involved no issue regarding the proper entities to apply the definition of that term to any particular felony. In addressing such issues, the trial court fundamentally recast the character of this case. In so doing, it entered the forbidden territory of the abstract and hypothetical and thereby exceeded its authority. It follows that paragraphs 8-10 of the trial court’s order are therefore void.

B. Paragraph 7

In their motion for a summary judgment, the defendants contended that the case had become moot because “nothing remain[ed] for [the] court to declare or enjoin.” Therefore, they argued, the trial court “lack[ed] jurisdiction to do anything other than dismiss this action.” In this Court, they insist:

“Plaintiffs’ claims for injunctive relief are moot because the actions Plaintiffs sought to compel have already happened. Gooden is already registered to vote and Thomas has been informed by [Hunter] that she may register.[] Plaintiffs wanted the county boards of registrars to receive certain advice that they have already received. Plaintiffs wanted a judgment declaring the law to be what all parties agree that it is. Plaintiffs wanted [registration] forms to be revised that have already been revised. Nothing remains to be done by any of the Defendants that the trial court is authorized by law to direct.”

Defendants’ brief, at 36.

Gooden and Thomas argue that “defendants who seek to avoid judicial resolution of the merits (of an injunctive suit) by voluntarily terminating the complained-of conduct, ‘face a heavy burden to establish mootness.’ ” Gooden and Thomas’s brief, at 26 n. 5 (quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983)). This burden is, as often stated, simply the need to demonstrate that the defendants will not “be free to ‘return to [their] old ways’ after the threat of a lawsuit had passed.” 464 U.S. at 72, 104 S.Ct. 373 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). The burden is satisfied, however, by a showing that “‘there is no reasonable likelihood that the wrong will be repeated.’ ” 464 U.S. at 72, 104 S.Ct. 373 (quoting W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. 894). Moreover, the “voluntary discontinuance” doctrine would seem to have no application where, as here, the voluntary acts are the dispositive acts of a third-party intervenor. See id. (assuming, without deciding, that the doctrine applied to a “third party non-defendant,” and holding, nevertheless, that the case was moot). In any event, the burden is satisfied in this case.

The focal point of the complaints in this ease was the secretary of state. As Goo-den and Thomas correctly note, the secretary of state is the “chief elections official in the state,” former Ala.Code 1975, § 17-l-8(a)(now § 17 — 1—3(a)), and is charged with the duty to “provide uniform guidance for election activities.” Id. The secretary of state is invested with rule-making power to aid in the discharge of those duties. Id. See also former Ala.Code 1975, § 17-4-136 (now § 17-3-1) (the secretary of state “may promulgate rules for the receipt of applications for registration and the expedient administration of those applications”). It was under this authority that the revised voter-registration forms were promulgated during the pendency of this action. The secretary of state is further authorized, pursuant to former § 17-4-151 (now § 17-3-3), to “remove! ] for cause” registrars appointed under former § 17-4-150 (now § 17-3-2). Thus, the secretary of state was sued, according to Gooden and Thomas, to compel her to obey the law as expressed by the attorney general in his opinion of March 18, 2005.

However, “ ‘[t]he attorney general is ... the chief law officer of the state, and on him are conferred various authorities and duties in connection with instituting and prosecuting, in the name of the state, suits and other proceedings ... for the preservation and protection of the rights and interests of the state.’ ” Ex parte Weaver, 570 So.2d 675, 679 (Ala.1990) (quoting State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So.2d 280, 284 (1949)) (emphasis added). See, e.g., Ala.Code 1975, § 36-15-21. Essentially “ ‘all litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general.’ ” 570 So.2d at 679-80 (quoting State ex rel. Carmichael, 252 Ala. at 484, 41 So.2d at 284).

That the attorney general has the “power to formulate legal policy” for the State, and, in connection therewith, the power to bind state officers and departments in litigation is well established. 570 So.2d at 681 (discussing with approval Feeney v. Commonwealth, 373 Mass. 359, 368, 366 N.E.2d 1262, 1267 (1977)). In Ex parte Weaver, supra, this Court held that the attorney general had “the authority to move to dismiss the State Department of Insurance’s [appeal/mandamus petition] in the Court of Civil Appeals over the objection of the commissioner of insurance.” 570 So.2d at 684. In so doing, it relied on State ex rel. Carmichael v. Jones:

“In [Jones ], the attorney general brought a mandamus action to compel the trial court to enter a consent judgment in a case pending between the State Department of Revenue and several defendants. The question presented was whether the attorney general was authorized and empowered to settle a pending suit by the State filed by him in his official capacity for the collection of an unliquidated tax claim, by taking a consent judgment in the cause for less than the amount sued for and claimed to be due by the revenue department. This Court held ‘that the attorney general, as the chief law officer of the state, was fully empowered to make any bona fide disposition of the cause as in his judgment might be deemed to be to the best interest of the state unless inhibited by organic law.’ ”

Ex parte Weaver, 570 So.2d at 679 (emphasis added).

These principles are applicable here. Upon learning of this litigation, the attorney general intervened to assume control of the case, thereby eliminating any dispute regarding the duties of the secretary of state. When he joined this action on November 18, 2005, he brought with him the construction and application of § 177 advocated by the plaintiffs and made it binding on the defendants. From that time until August 23, 2006, when the trial court entered its final judgment, it was undisputed that neither the plaintiffs nor any individuals similarly situated would be disfranchised solely on the basis of a felony conviction as had been the policy of Hunter and the secretary of state.

Indeed, the parties have stipulated that registrars in Jefferson and Houston Counties are now basing their decisions on whether the prospective voter’s felony conviction involved moral turpitude and are no longer disfranchising anyone simply on the basis of a felony conviction. Considering the posture of this case, the identity of the parties, and the remedial action taken by Hunter and the secretary of state, we can foresee “ ‘no reasonable likelihood that the wrong will be repeated.’ ” Heckler, 464 U.S. at 72, 104 S.Ct. 373 (quoting W.T. Grant Co., 345 U.S. at 632, 73 S.Ct. 894).

Gooden and Thomas also contend that the trial court was empowered to provide the relief afforded in paragraph 7 under an exception to the general mootness rule for cases involving “ ‘a broad public interest.’ ” Gooden and Thomas’s brief, at 20 (quoting Slawson v. Alabama Forestry Comm’n, 631 So.2d 953 (Ala.1994)). It is true that an exception exists for a “moot case involving issues of great public importance, which may recur in the future.” 1A C.J.S. Actions § 81 (2005). “The criteria for applying the public interest exception to the mootness doctrine include the public nature of the question, the desirability of an authoritative determination for the purpose of guiding public officers, and the likelihood that the question will generally recur.” Id. (footnote omitted). However, this “exception is construed narrowly ... and a clear showing of each criterion is required to bring a case within its terms.” In re Adoption of Walgreen, 186 Ill.2d 362, 365, 238 Ill.Dec. 124, 710 N.E.2d 1226, 1227 (1999).

Although this case does involve a matter of public importance, the second and third factors in the analysis weigh against the application of the “public-interest” exception. As we have already discussed, the conditions that gave rise to this action are unlikely to recur. Indeed, Nancy Worley, who was secretary of state when this action was filed, no longer serves as secretary of state. (See note 1.) Moreover, in view of the actions taken by the attorney general in this case, including the distribution of his March 18, 2005, opinion to the registrars throughout the State, as well as the action of the secretary of state herself, in revising the voter-registration forms, it is difficult to see how a judgment based on paragraph 7 would further enlighten the secretary of state or the registrars in the performance of their duties.

These factors, although not expressly considered in Slawson, weighed in favor of the application of the exception in that case. Slawson involved an action by Bart Slawson and Naomi Furman against the Alabama Forestry Commission (“the Commission”) and others, challenging the Commission’s financial “support of a private nonprofit organization known as Stewards of Family Farms, Ranches, and Forests (‘Stewards’).” 631 So.2d at 955. The action sought a judgment declaring, among other things, that the Commission had violated the Alabama Sunshine Law, Ala. Code 1975, § 13A-14r-2, by failing to “provide the public with notice of a meeting it held by special session ... at which the Commission passed a resolution approving the use of Commission resources ... in promoting Stewards.... ” 631 So.2d at 955. They also “sought to enjoin the [Commission] from,” among other things, “meeting in secret, [and] from meeting without prior public notice.” Id. The trial court entered a summary judgment for the defendants. On appeal, the Commission contended that the notice issue was moot, because it had begun giving public notice of its meetings. 631 So.2d at 957. This Court, citing the public-interest exception, id., proceeded to address the merits and reversed the summary judgment. 631 So.2d at 959.

Slawson involved two notable features that distinguish it from this case. First, and perhaps most significantly, the Commission was still arguing on appeal that the statute did not require that it provide notice. In particular, it sought to persuade this Court to “follow the Georgia Supreme Court, which [had] indicated that ‘[Georgia’s] Sunshine Law deals with the openness of public meetings, not with the notice of such meetings.’” 631 So.2d at 958 (quoting Harms v. Adams, 238 Ga. 186, 187, 232 S.E.2d 61, 62 (1977)). Thus, unlike this case, the dispositive issue in Slawson, namely, the correct construction and application of the Alabama Sunshine Law, remained controverted, even at the appellate stage. Here, by contrast, the dispositive issue, namely, the correct construction and application of § 177, has not been disputed by anyone since the intervention of the attorney general at the outset of the case.

Second, because of the continuing dispute in Slawson over the necessity of notice, there was a reasonable probability that the challenged conduct would recur, absent a final judicial determination. In fact, the Commission had reversed its position on the notice issue more than once. It had provided public notice of its meetings in the past, “but [had] discontinued that practice because the public did not attend.” 631 So.2d at 957. By the time the case reached this Court, the Commission was again providing public notice. Id. However, by pressing its position in this Court that notice was not required, the Commission signaled its unwillingness to abandon its claim of the right to discontinue giving notice at any time. By contrast, no one in this case is insisting, expressly or by implication, on the right to revive the prior policy of disfranchisement without regard to the nature of the felony conviction. For these reasons, Slawson is not controlling.

Next, Gooden and Thomas contend that, because this is a putative class action, mootness of the representative’s claims does not necessarily moot the entire action. For that proposition, they cite Jones v. Southern United Life Insurance Co., 392 So.2d 822 (Ala.1981). Jones was a class action commenced by Mary Jones against Southern United Life Insurance Company (“Southern United”). Jones, the beneficiary of a burial-insurance policy issued by Southern United, sought the payment of interest allegedly due between the dates of proof of the death of the named insured and the date of the payment of the policy proceeds. Id. at 822-23. Shortly after the action began, Southern United “tendered payment of interest from the date of death to the date of payment of the benefit,” and filed motions to deny class certification and for a summary judgment. Id. at 823. The trial court granted the motions, and Jones appealed. Id.

One question on appeal was whether “Jones, whose claim [was] rendered moot through satisfaction, prior to certifying the class, [could] be permitted to have the class certified, and proceed to represent that class, even though she no longer [had] a real interest in the right to be protected.” Id. This Court answered that question in the affirmative and reversed the summary judgment, stating: “Notwithstanding the mootness of the suit as to Mary Jones, it is not moot as to other members of the class, and she can continue to litigate the issues as a representative of the class.” Id. (emphasis added).

Gooden and Thomas’s reliance on Jones, however, is misplaced. The problem in this case is not — as it was in Jones — that the claims of the class representatives have become moot; it is that the claims of the entire putative class have become moot. They became moot, at the latest, by May 8, 2006, when the second amended complaint was filed. By that time, the attorney general had intervened and had sent a copy of his March 18, 2005, opinion with instructions to every board of registrars in the State; the secretary of state had promulgated the revised voter-registration forms; and Hunter had undisput-edly discontinued her former practice of indiscriminately rejecting the applications of all convicted felons. Paragraph 7, which Gooden and Thomas concede afforded “precisely the relief [they had] requested,” did not purport to extend relief beyond that which had been accomplished by the actions of the defendants and the attorney general by May 8, 2006. This relief extended, not only to Gooden and Thomas, but to all members of the putative class. The relief purportedly awarded in paragraph 7 affords nothing in addition to that which has been available to the parties and members of the putative class since May 8, 2006. Thus, it can be said that “the court’s action on the merits would [not] affect the rights of the parties.” Crawford, 153 S.W.3d at 501 (test for mootness).

In short, this case was moot long before August 23, 2006, when the trial court purported to certify classes and enter a summary judgment for the plaintiff class. “A moot case lacks justiciability.” Crawford, 153 S.W.3d at 501. ‘““Unless the trial court has before it a justiciable controversy, it lacks subject matter jurisdiction and any judgment entered by it is void ab initio.””’ Sustainable Forests, L.L.C., 805 So.2d at 683-84 (quoting Grenier, 782 So.2d at 272, quoting in turn Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998)). Consequently, the trial court’s purported class certification and summary judgment were void.

II. Attorney Fees

Finally, the defendants contend that the trial court’s award of attorney fees was erroneous, because of, among other things, the mootness of the plaintiffs’ claims. We agree.

Gooden and Thomas concede that, as a general rule, sovereign immunity as enshrined in Ala. Const.1901, § 14, bars an award of attorney fees against the State. Ex parte Town of Lowndesboro, 950 So.2d 1203 (Ala.2006). However, sovereign immunity is no bar to such an award based on 42 U.S.C. §§ 1983 and 1988. James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997) (plurality opinion) (citing Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). Section 1988(b) provides, in pertinent part:
“In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs...”

(Emphasis added.)

The question of whether a party is the “prevailing party” within the meaning of § 1988(b) is often a matter of contention. However, the following principles are well settled:

“ ‘[A] plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). In the context of an injunction, ‘a party “need not obtain relief identical to the relief [that it] specifically demanded, as long as the relief obtained is of the same general type.” ’ Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1583 (11th Cir.1994) (quoting Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131 (3d Cir.1986)). Nor does the plaintiff need to obtain relief to the extent demanded; getting something suffices to authorize an award of fees. See Farrar, 506 U.S. at 111, 113 S.Ct. at 573.”

Dillard v. City of Greensboro, 213 F.3d 1347, 1353-54 (11th Cir.2000).

Moreover, “attorney’s fees are available in cases ‘in which plaintiff prevails on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim.’ ” Davis v. Everett, 443 So.2d 1232, 1235-36 (Ala.1983) (quoting Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)) (emphasis added). They are available “ ‘where [the] Court enters judgment in favor of a plaintiff on [the pendent] state law claim,’ ” rather than on the federal civil-rights claim, “ ‘as long as both claims arise out of a common nucleus of operative fact.’ ” Davis, 443 So.2d at 1235 (quoting trial court’s order). See also Lowery v. Thomas, 575 So.2d 1030, 1032 (Ala.1990) (“If the [federal civil-rights] claim and the state law claim arise out of a ‘common nucleus of operative fact,’ then in determining the plaintiffs status as a ‘prevailing party under § 1988 it is immaterial upon which claim or claims the judgment is based, unless the [federal] claim is specifically denied.”).

However, the term “prevailing party” does not include “a party that has failed to secure a judgment on the merits or a court-ordered consent decree,” even if the party has “achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 600, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (emphasis added). “[F]or a party to be considered ‘prevailing,’ there must be a ‘material alteration of the legal relationship of the parties,’ ... and there must be ‘judicial imprimatur on the change.’ ” Smith v. Fitchburg Public Schools, 401 F.3d 16, 22 (1st Cir.2005) (quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835 (emphasis in Buckhannon)). Thus, it does not include a party whose claims have become moot before the entry of such a judgment or decree, resulting in a dismissal of the claims. See Buckhannon, 532 U.S. at 608-09, 121 S.Ct. 1835; Lewis v. Continental Bank Corp., 494 U.S. 472, 483, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (a party is not a “ ‘prevailing party’ as it must be to recover fees under § 1988,” even though the court of appeals holds in that party’s favor, where the Supreme Court vacates the judgment of the court of appeals “on the basis of an event that mooted the controversy before the court of appeals’ judgment issued”); Cramer v. Virginia Commonwealth Univ., 486 F.Supp. 187,192 n. 7.(E.D.Va.1980) (“a plaintiff cannot be a prevailing party where his claim is dismissed as moot”).

Gooden and Thomas contend that they are entitled to attorney fees under count six of their second, third, and fourth amended complaints. Specifically, they state:

“ ‘[T]he plaintiffs’ equal protection/due process claims under count six were not reached, with the court’s ruling instead premised on its analysis of state constitutional rights. The claims of count six, and the due process analysis used in resolving the other claims in the plaintiffs’ favor, however, certainly suggest that at least to some extent, relief to the plaintiffs could have been based on federal constitutional claims.’ ”

Gooden and Thomas’s brief, at 70 (quoting the trial court’s order). According to Goo-den and Thomas, paragraph 7 was “justified by the federal due process clause.” Gooden and Thomas’s brief, at 54.

Gooden and Thomas’s reliance on the federal claims in count six is unavailing. Those claims were asserted for the first time in the second amended complaint, which was filed on May 8, 2006. By that time, the case had become moot, as discussed previously in this opinion. In other words, it was moot, not only when the judgment was entered, but when the federal civil-rights claims were first asserted. Thus, in whatever respect the “legal relationship of the parties,” and, in particular, the relationship between the defendants and Gooden before May 8, 2006, may have been altered with “judicial imprimatur,” they were clearly altered in the absence of any pendent federal claim upon which Goo-den and Thomas rely. For these reasons, the trial court erred in awarding fees to the plaintiffs’ attorneys.

III. Summary

In summary, the trial court erred in awarding attorney fees, based on federal claims that were not asserted before the case was mooted by the voluntary acts of the attorney general, as intervenor, and the original defendants. Therefore, to the extent the trial court awarded attorney fees, its judgment is reversed. In all other respects, as explained in Part I of this opinion, the judgment of August 23, 2006, is void. A void judgment will not support an appeal. Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1183 (Ala.2006). Consequently, with the exception of the reversal of the award of attorney fees, this appeal must be dismissed.

REVERSED IN PART AND APPEAL DISMISSED IN PART.

COBB, C.J., and SEE, LYONS, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

      . Section 17-4-124 authorized an appeal from the denial of registration. Act No. 2006-570 revised and reordered Title 17 of the Alabama Code 1975. The appeal provisions now appear in § 17-3-55.

      . The new forms were precleared by the United States Department of Justice on July 14, 2006.

      . As discussed previously in this opinion, counts one and two alleged violations of § 177; count three involved the statutory appeal from the denial of registration; and count six alleged federal constitutional violations.

      . As to those counts, Gooden and Thomas appealed, pursuant to § 17-4-124, the "refusal to register them to vote.”

      . Jones is not involved in this appeal.

      . This construction of paragraph 7 mirrors the construction given it by Gooden and Thomas, who describe it as "providing declaratory and injunctive relief against Defendants’ practice of disfranchising voters based on their conviction of any felony, without regard to whether the felony involved moral turpitude." Gooden and Thomas’s brief, at 49.

      . It also follows that the issues forming the basis of the relief in paragraphs 8-10 were not "in the case” for purposes of the application of Rule 54(c), Ala. R. Civ. P. See Am-brose, supra.

      . According to Gooden and Thomas, "Thomas registered to vote just before the November 2006 election.” Gooden and Thomas's brief, at 10.

      . It follows that the joinder of Jones and Thomas by the first and fourth amended complaints, respectively, did not affect the mootness of the case. Their alleged causes of action differed in no material respect from that of Gooden, the original plaintiff, and it is not alleged that they suffered any deprivation after May 8, 2006.

      . This conclusion obviates the need to discuss the implications, if any, of the mootness of Gooden’s individual claims or the untimeliness of Thomas's claims with regard to their right to represent a plaintiff class.


source: Caselaw Access Project

author: BRYAN, Judge. THOMPSON, Judge, MURDOCK, Judge,

license: Public Domain

text:
    James C. PADGETT and Alabama Preservation Alliance, Inc. v. CONECUH COUNTY COMMISSION et al. Conecuh County Commission v. James C. Padgett and Alabama Preservation Alliance, Inc.
    2041078.
    Court of Civil Appeals of Alabama.
    Dec. 1, 2006.
    Rehearing Denied May 11, 2007.
    Certiorari Denied June 15, 2007 Alabama Supreme Court 1061191.

      Alton B. Parker, Jr., Samuel H. Frazier, and Gary W. Lee of Spain & Gillon, LLC, Birmingham, for appellants/cross-appellees James C. Padgett and Alabama Preservation Alliance, Inc.
    Kendrick E. Webb, Bart G. Harmon, and Scott W. Gosnell of Webb & Eley, P.C., Montgomery; and Richard D.C. Nix of Nix & Nix, Evergreen, for appel-lees/cross-appellants.
   BRYAN, Judge.

Two of the plaintiffs below, James C. Padgett and Alabama Preservation Alliance, Inc. (“APA”), appeal a judgment insofar as it: (1) denied APA an award of attorneys’ fees and costs; (2) awarded Padgett less than the full amount of the attorneys’ fees and costs that he sought; and (3) forfeited $25,000 deposited with the trial court clerk on behalf of Padgett and APA as security for the issuance of a temporary restraining order (“the TRO”). The Conecuh County Commission and the other defendants below (collectively “the County Commission”) cross-appeal the judgment insofar as it awarded Padgett attorneys’ fees and costs. We affirm in part, reverse in part, and remand.

This is the second appeal arising from this case. For a detailed recitation of the factual and procedural history of the case, see the supreme court’s opinion in Padgett v. Conecuh County Commission, 901 So.2d 678 (Ala.2004).

For purposes of this appeal, the material substantive and procedural facts are as follows. In January 2003, Padgett and APA, along with the Alabama Historical Commission, sued the County Commission in the Conecuh Circuit Court. The plaintiffs challenged the County Commission’s proposed use of funds generated by a court fee (“the court fee”), a lodging tax (“the lodging tax”), and a series of revenue warrants issued in 2002 (“the Series 2002 Warrants”) to pay the cost of: (1) demolishing the existing Conecuh County courthouse (“the existing courthouse”), which the plaintiffs considered to be a historically significant building; and (2) constructing a new courthouse on the site of the existing courthouse. The plaintiffs also alleged that the language of Amendment No. 634 to the Alabama Constitution of 1901 (“the Amendment”), which authorized the collection of the court fee, prohibited the use of funds generated by the court fee to pay for the demolition of the existing courthouse and the construction of a new courthouse. Additionally, the plaintiffs alleged that Act No. 98-657, Ala. Acts 1998 (“the Act”), which authorized the collection of the lodging tax, prohibited the use of the funds generated by the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse. The plaintiffs alleged that the language of the prospectus that was issued to sell the Series 2002 Warrants precluded the use of the proceeds of the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse.

A few days after this action was filed, the trial court entered the TRO enjoining the County Commission from spending funds generated by the court fee, the lodging tax, and the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse. The TRO further stated:

“Pursuant to Rule 65(c), [Ala. R. Civ. P.,] the Court determines that no bond shall be required of the Alabama Historical Commission, an agency of the State of Alabama; however, as to Plaintiffs James C. Padgett and the Alabama Preservation Alliance, this order shall only be effective upon the Plaintiffs James C. Padgett and the Alabama Preservation Alliance combined giving security in the amount of Twenty Five Thousand Dollars ($25,000.00) with good and sufficient surety approved by the Circuit Clerk of this Court.”

APA deposited $25,000 with the trial court clerk, and the TRO became effective. Subsequently, the trial court entered an order that granted the plaintiffs’ request for an injunction enjoining the County Commission from using funds generated by the court fee and the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse, but it denied the plaintiffs’ request for an injunction enjoining the County Commission from using the proceeds of the Series 2002 Warrants for those purposes. The trial court made that order final pursuant to Rule 54(b), Ala. R. Civ. P. The plaintiffs then appealed that order insofar as it denied their request for an injunction enjoining the County Commission from using the proceeds of the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse. The County Commission cross-appealed the order insofar as it enjoined the County Commission from using funds generated by the court fee and the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse.

In Padgett v. Conecuh County Commission, supra, the supreme court held that the language of the Amendment and the language of the Act prohibited the County Commission from using the funds generated by the court fee and the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse. However, the supreme court held that the proceeds of the Series 2002 Warrants could be used to pay for the demolition of the existing courthouse and the construction of a new courthouse.

Following the supreme court’s remand of the case to the trial court, Padgett and APA petitioned the trial court to award them attorneys’ fees and costs totaling $199,196.35 on the ground that they had obtained relief that benefited the public. In response, the County Commission challenged the standing of APA to participate as a plaintiff in the action and argued that, because APA lacked standing, it was not entitled to an award of attorneys’ fees and costs. The County Commission challenged Padgett’s claim for attorneys’ fees and costs on a number of grounds. In addition, the County Commission sought the forfeiture of the $25,000 that had been deposited on behalf of APA and Padgett as security for the issuance of the TRO. The County Commission argued that the trial court should order a forfeiture of the security because, insofar as the TRO had been issued at the behest of APA, the TRO order was wrongful because APA lacked standing to seek the TRO. The County Commission argued that the trial court should order the forfeiture of the entire $25,000, even though it had been deposited on behalf of both APA and Padgett, because APA was the source of the entire $25,000.

First, the trial court held that, because no members of APA were resident citizens and taxpayers of Conecuh County when the action was filed, APA did not have standing to participate in the action as a plaintiff. Second, the trial court held that, because APA did not have standing, it was not entitled to any attorneys’ fees or costs. Third, the trial court held that Padgett was entitled to only $21,901.29 in attorneys’ fees and costs rather than the $199,196.35 he sought. Fourth, the trial court held that, because APA did not have standing, the issuance of the TRO, insofar as it had been issued at the behest of APA, was wrongful within the meaning of Rule 65, Aa. R. Civ. P. Fifth, the trial court held that, because APA had deposited the entire $25,000 as security for the TRO, the County Commission was entitled to a forfeiture of the entire $25,000, even though the $25,000 was deposited as security on behalf of both APA and Padgett.

Padgett and APA then appealed to the supreme court, and the County Commission cross-appealed. Finding that the appeal and the cross-appeal were within this court’s appellate jurisdiction, the supreme court transferred the appeal and the cross-appeal to this court.

The threshold issue raised by APA’s appeal is whether APA had standing.

“ ‘ “[L]ack of standing [is] a jurisdictional defect,” ’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (quoting Tyler House Apartments, Ltd. v. United States, 38 Fed.Cl. 1, 7 (1997)), and it ‘ “remains open to review at all stages of the litigation.”’ Ex parte Fort James Operating Co., 871 So.2d [51] at 54 [ (Ala.2003) ] (quoting National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994)).”

Goodyear Tire & Rubber Co. v. Moore, 900 So.2d 1239, 1240 (Ala.Civ.App.2004). “Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm’rs of the County of Pueblo, Colo., 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting)).

APA argues that, as a statewide organization with an interest in the preservation of historical buildings, it had standing to sue the County Commission to prevent the demolition of the existing courthouse, even though, on the date the action was filed, none of its members were resident citizens or taxpayers of Conecuh County. In support of that argument, APA cites the holding in Committee to Save the Fox Building v. Birmingham Branch of the Federal Reserve Bank of Atlanta, 497 F.Supp. 504 (N.D.Ala.1980).

In Committee to Save the Fox Building, an unincorporated association of individuals, each of whom was a resident citizen and taxpayer of the City of Birmingham, sued the owner of the Fox Building, a building located in the City of Birmingham, to prevent its demolition. The association claimed that the proposed demolition of the Fox Building would violate the National Environmental Policy Act and the National Historic Preservation Act.

However, Committee to Save the Fox Building is distinguishable from the case now before us. In Committee to Save the Fox Building, the association claimed that its members had aesthetic and environmental interests in preserving the Fox Building and premised its claims against the owner of the Fox Building on statutes that protected those interests. In the case now before us, on the other hand, APA claimed its members had an aesthetic and environmental interest in preserving the existing courthouse but premised its claims against the County Commission on laws that protected an altogether different interest — the laws on which APA premised its claims protected only the interests of citizens of Conecuh County in having County funds expended for their authorized purposes. Because none of the members of APA were citizens of Conecuh County on the date this action was filed, the laws on which APA premised its claims did not protect the interests of any of its members and, therefore, APA did not have standing to prosecute those claims. Accordingly, we affirm the holding of the trial court that APA did not have standing.

With respect to APA’s and Padgett’s requests for attorneys’ fees and costs, the trial court explained and held:

“The following factors, among others, have been considered by the court in arriving at a resolution of this issue:
“The same law firms (Spain & Gillon and Hyde) represented both Plaintiffs, APA and Padgett. However, the court has determined that one of said Plaintiffs (APA) was not a proper party, and thus no attorneys fees can be apportioned to the law firms for their representation of APA.
“Attorneys for APA and Padgett were not the only lawyers who represented party Plaintiffs in this cause. Lawyers for APA and Padgett were assisted by the able and substantial participation of Hon. William D. Little, assistant attorney general, counsel for the State and for [the Alabama Historical Commission],
“There was no written employment contract or fee agreement between attorneys for APA and Padgett and their clients.
“Some of the fees and costs billed by Hyde and/or Spain & Gillon have been paid by APA.
“Both this court, as well as the Supreme Court (i.e., We agree with the trial court that the language of Amendment No. 634 and of Act No. 98-657 forbids the use of the proceeds collected from the court fee and the lodging tax to demolish the existing county courthouse and to construct a new courthouse. We adopt its reasoning in support of that holding.’), determined that the efforts of the attorneys for the Plaintiffs rendered a public service or resulted in a benefit to the general public by bringing an end to an improper practice. Thus, some [amount of] attorney’s fees is justified for the representation by Spain & Gillon and Hyde in their efforts on behalf of Padgett. What contributes to the difficulty in determining an amount to be awarded to these said attorneys for their efforts in achieving this public service, are the following: these attorneys represented two different Plaintiffs, one of which (APA) this court has determined did not have standing, and thus no amount of fees and costs should be awarded for their representation of APA; these attorneys did represent a proper party (Padgett) and the efforts exerted and costs incurred during said representation justifies an award of some attorney’s fee; however, two other Plaintiffs (the State and [the Alabama Historical Commission]) were also proper Plaintiffs, and these other Plaintiffs were represented by counsel from the attorney general’s office, and obviously no award is authorized for his participation and efforts in this litigation; nevertheless, the court cannot discount his contributions in successfully enjoining Defendants from participating in an unlawful practice.
“The initial Billing Statement by Spain & Gillon addressed to APA for services rendered through December 31, 2002, evidences no mention of Padgett, but is replete with references to Mr. DeShields (APA), Dr. Warner ([the Alabama Historical Commission]) and attorney Little (the State). These services were rendered prior to Padgett being involved in this case, and thus none of this amount ($10,680.96) should be included in any award by this court for the representation of Padgett.
“Concerning the next Billing Statement by Spain & Gillon addressed to APA for services rendered through January 31, 2003, the court notes the entry dated 01-03-03, which includes, ‘telephone conference with Mr. Padgett and initial agreement to be a plaintiff.’ Any amounts (viz. $7,570.00) included for services rendered prior to such date are due to be deducted from the Total Due of $82,390.21 ($82,390.21 less $7,570.00 = $74,820.21) for services rendered for the representation of Padgett and APA.
“The Billing Statement for services rendered by Spain & Gillon for their representation of Padgett and APA through February 28, 2003, was the sum of $2,108.03.
“The Billing Statement for services rendered by Spain & Gillon for their representation of Padgett and APA through March 31, 2003, was the sum of $9,937.17.
“The Billing Statement for services rendered by Spain & Gillon for then-representation of Padgett and APA through April 30, 2003, was the sum of $1,244.23. The record reveals, though, that as of April 11, 2003, this court entered .an order whereby said Defendants were, inter alia, enjoined from conduct which was considered to be unlawful by this court. In other words, as of April 11, 2003, Plaintiffs had successfully acquired court relief of enjoining and restraining Defendants from participating in such unlawful conduct. Any attorney’s fees or costs billed subsequent to April 11, 2003, were unnecessary to achieve the public good, for which this court determines Plaintiffs’ (APA and Padgett) attorneys jointly achieved with attorney for other Plaintiffs. The portion of said Statement for which services were rendered as of April 11, 2003, is determined to be $201.98.
“Insofar as Hyde is concerned, it appears that his fees and costs which were billed for the period ending April 11, 2003, was $10,123.75. Of said sum, $393.75 was billed for services rendered prior to Padgett becoming a Plaintiff, and, furthermore, it appears that Hyde has already been compensated in the amount of $9,192.25 in this case ($10,-123.75 - $393.75 = $9,730.00 - $9,192.25 = $537.75). For the period ending April 11, 2003, it thus appears Hyde has billed for fees and costs in the sum of $681.95 ($537.75 fees + $144.20 costs = $681.95), for his representation of APA and Padgett for which he has not yet been compensated.
“Subsequent to April 11, 2003, the efforts by attorneys for Plaintiffs APA and Padgett were directed toward seeking a mandatory injunction to compel Defendants to renovate the historic Co-necuh County courthouse and to prevent Defendants from undertaking actions which would result in the demolition of said courthouse. (The apparent main thrust of Plaintiffs’ purpose in filing this action.) Neither the trial court nor the Supreme Court found it improper for Defendants to use the warrant proceeds to demolish the county courthouse and to construct a new courthouse. The decision by Plaintiffs APA and Padgett to pursue an appeal to the Supreme Court on this issue did not result in any benefit to the general public, and, therefore, any fees and costs billed by attorneys for Plaintiffs APA and Padgett after April 11, 2003, are found not to be in furtherance of bringing an end to an improper practice.
“Among other notable factors are the following: in a Memorandum dated June 20, 2003, from Chip DeShields, Director, to APA Executive Committee is an entry dated January 2, 2003: ‘Chip says he asked Alton Parker to estimate totals [sic] costs for legal fees, but has not gotten his response. He adds “Lee Warner ... assured me that the [Alabama Historical Commission] would ... cover all legal costs we incur.” the entry dated January 9, 2003, in said Memorandum relates, ‘Letter from Lee Warner received that states, “The Executive Committee of the [Alabama Historical Commission] met ... and unanimously agreed to join the APA and other parties in seeking a preliminary injunction and a hearing on the demolition of the Conecuh County courthouse. As part of that meeting, we discussed the need to replenish the Emergency Response Fund ... to cover legal expenses incurred through this case. Please get with Elizabeth (Brown) and Alta (Cassady) and prepare a grant application for this purpose, to be considered at the Feb. 5th meeting of the full Commission.” ’ (see, letter dated January 9, 2003, addressed to Mr. Chip DeShields, Executive Director Alabama Preservation Alliance, P.0. Box 2228, Montgomery, Alabama, 36102 from Lee H. Warner, Executive Director, State of Alabama, Alabama Historical Commission, 468 South Pine Street, Montgomery, Alabama 36130-0900).
“It appears to this court that Spain & Gillon ‘relied’ on Plaintiff APA for payment of all fees and costs it rendered in connection with this litigation, as the firm regularly submitted itemized Billing Statements to APA for Total Due amounts.
“The court determines that all attorneys who represented Plaintiffs APA and Padgett were experienced, capable and very able.
“Any sums paid to Spain & Gillon and/or Hyde pursuant to this Final Order are not to be construed so as to preclude said law firms from recovery of any unpaid portion of their fees and costs from their client, Plaintiff APA.
“The court further finds that all bills tendered to its client, APA, by Spain & Gillon, were reasonable and necessary
“Although this court is cognizant of the guidelines to be considered in determining the amount of an attorney fee to be awarded attorneys for Plaintiff Pad-gett in this ease from said Defendants (see, Brown v. State, 565 So.2d 585, at 592 (Ala.1990)), such guidelines do not provide for multiple plaintiffs (especially when one is proper, but another lacks standing), multiple plaintiffs’ attorneys (some of whom are entitled to a share of attorney’s fees and costs, whereas it is not legally appropriate to award such to another attorney), some services provided by said plaintiffs attorneys having resulted in enjoining unlawful actions by defendants, while other substantial services provided by said attorneys not having been rendered for a purpose determined to be unlawful by either this court or by the Supreme Court.
“All of the above being considered and understood, it is, therefore, ORDERED, ADJUDGED, and DECREED as follows:
“4. That the Alabama Preservation Alliance’s Petition of An Award of Attorney’s Fees and Reimbursement of Litigation Costs and Expenses is denied.
“5. That Plaintiff J.C. Padgett’s Petition of An Award of Attorney’s Fees and Reimbursement of Litigation Costs and Expenses is granted, and the Court hereby award’s attorney’s fees and expenses to Plaintiff J.C. Padgett against said Defendants (i.e., as named on pages 18-19 of the trial court’s order dated February 28, 2003) in the amount of $21,901.29, for all of which, execution may issue.”

Because we conclude that the trial court did not err in holding that APA lacked standing, we likewise conclude that the trial court did not err in denying APA’s request for attorneys’ fees and costs. Accordingly, we affirm that aspect of the trial court’s judgment.

With respect to the award of attorneys’ fees and costs to Padgett, Padgett argues that the trial court erred because, Padgett says, the trial court awarded him an insufficient amount; the County Commission argues that the trial court erred because, the County Commission says, the trial court should not have awarded Pad-gett any attorneys’ fees and costs. However, we note that the decision whether to award attorneys’ fees under the “common benefit” exception to the American rule precluding the recovery of attorneys’ fees “is within the sound discretion of the trial court” and that the ruling on that question will not be reversed on appeal absent an abuse of discretion. Ex parte Horn, 718 So.2d 694, 702 (Ala.1998). After carefully considering the trial court’s reasoning and the arguments of the parties, we conclude that the trial court did not abuse its discretion in awarding Padgett $21,901.29 in attorneys’ fees and costs.

With regard to the County Commission’s petition seeking forfeiture of the $25,000 deposited on behalf of APA and Padgett as security for the issuance of the TRO, the trial court stated, in pertinent part:

“In accordance with [the TRO], one of counsel of record for Plaintiffs James C. Padgett (‘Padgett’) and the Alabama Preservation Alliance (‘APA’) posted a cash bond in the sum of Twenty Five Thousand Dollars with the Circuit Clerk of Conecuh County. The records produced by the law firm of Spain & Gillon, LLC (‘Spain & Gillon’) reflect that a check (614) was issued to Sam Frazier on 2/27/2003 in the amount of $25,000.00 for ‘reimbursement for courthouse.’ This confirms that the funds for the security bond were provided exclusively by Plaintiff APA.
“Because APA had (and has) no standing to participate in the action at bar, it had no legal standing to request the injunctive relief imposed on Defendants, and, therefore, any injunction issued pursuant to APA’s participation was wrongful. Since APA was the only party who provided funds for the cash bond, the court finds that APA’s lack of standing is sufficient to support an award of the cash bond proceeds to the Defendants .... The basis of the court’s award to said Defendants of the cash bond in the sum of $25,000.00 is that APA’s participation in this case was wrongful, and the court determines pursuant to Rule 65.1[, Ala. R. Civ. P.j, said Defendants have sustained damages as a proximate result of such wrongful participation by APA. Such damages include, but are not limited to, expenditures by said Defendants for attorney’s fees and costs expended by said Defendants in defending APA’s allegations and requests for relief. To paraphrase a former Chief Justice of our Supreme Court, ‘they paid their money and took their chances.’ ”

In Ex parte Waterjet Systems, Inc., 758 So.2d 505 (Ala.1999), the supreme court, in pertinent part, stated:

“Rule 65(c), Ala. R. Civ. P., requires that the party applying for a preliminary injunction give security ‘in such sum as the court deems proper, for the payment of such costs, damages, and reasonable attorney fees as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.’ Thus, Alabama deviates from the analogous federal rule, Rule 65(c), Fed.R.Civ.P., to the extent that it makes attorney fees recoverable following a wrongful injunction.
“A party that is wrongfully enjoined or restrained has ‘a cause of action for recovery under the surety bonds posted in accordance with Rule 65(c).’ Talladega Little League, Inc. v. Anderson, 577 So.2d 1293, 1296 (Ala.1991). A wrongfully enjoined or restrained party may also use Rule 65.1, which provides a motion procedure for enforcement of the liability of the surety. ‘In order for a party to be liable on the bond posted pursuant to Rule 65(c), the [trial] court must find that the party [enjoined] had been “wrongfully” enjoined.’ Marshall Durbin & Co. v. Jasper Utilities Bd., 437 So.2d 1014, 1027 (Ala.1983). On appeal, a trial court’s award of ‘costs, damages, and ... attorney fees’ pursuant to a security bond will not be disturbed absent an abuse of discretion. Id. at 1027.
“We hold that a party does not have to prove bad faith to recover damages on a bond posted as a condition to obtaining an injunction.... Consistent with the language of Rule 65(c), we hold that in order to recover damages on a Rule 65(c) bond the party seeking recovery need only establish that he or she was wrongfully enjoined or restrained.
“Once a party establishes that he or she was wrongfully enjoined or restrained, that party has a right to recover damages and can recover those damages that are ‘the actual, natural and proximate result of the [wrongful] injunction.’ Alabama Cablevision v. League, 416 So.2d 433, 435 (Ala.Civ.App.1982). These damages include compensation for injury, including attorney fees, incurred as the result of the injunction .... If the party establishes that it was wrongfully enjoined and suffered damage and incurred costs or attorney fees as a proximate result of the wrongful injunction, the trial court must award compensation for the party’s damage, costs, and attorney fees.
“This holding is consistent with the policy long recognized by our courts that a party seeking an interlocutory injunction must pay for its incorrect belief that it is entitled to such an injunction. As Chief Justice Torbert noted in his dissent in Churchill [v. Board of Trustees of the Univ. of Alabama in Birmingham, 409 So.2d 1382 (Ala.1982) ]:
“ ‘Our courts have stated:
“ ‘ “By filing the application and the required bond the applicant takes his chance that there may be dissolution upon motion. He has, by making the bond, entered into a contract that in the event there is dissolution the bond becomes due for damages resulting from the issuance of the injunction. Upon breach of the condition of the bond a right of action thereon arises immediately. In requesting the extraordinary relief of a temporary injunction and making the bond the applicant in colloquial language ‘pays his money and takes his chances.’ ” ’
409 So.2d at 1390 (Torbert, C.J., dissenting) (emphasis added [in Ex parte Waterjet Systems ]; citations omitted).
“Although Rule 65(c) has contained the phrase ‘wrongfully enjoined or restrained’ since its adoption, this Court has not before now had the opportunity to define that phrase. Federal courts have construed the same phrase in Rule 65(c), Fed.R.Civ.P., to mean that a party is wrongfully enjoined ‘when it turns out the party enjoined had the right all along to do what it was enjoined from doing’ Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir.1994), cert. denied, 513 U.S. 822, 115 S.Ct. 85, 130 L.Ed.2d 37 (1994); see, also, Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d 1049, 1054 (2d Cir.1990) (‘A party has been “wrongfully enjoined” under Fed.R.Civ.P. 65(c) if it is ultimately found that the enjoined party had at all times the right to do the enjoined act.’); Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv. L.Rev. 828, 836^12 (1986) (‘applicant should be liable only if the injunction prohibited the other party from doing what it was legally entitled to do ’).
“We agree with this definition of the phrase ‘wrongfully enjoined or restrained.’ It is a simple definition that provides clear guidance for a trial court. Furthermore, this definition requires that the trial court base the liability on the bond on the merits of the plaintiffs claim and not on some procedural defect. See Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv. L.Rev. 828, 838-39 (1986).
“... The only questions a trial court must answer are (1) whether the party was wrongfully enjoined or restrained and (2) what, if any, damages the party is entitled to recover....”

758 So.2d at 510-12 (some emphasis added).

In the case now before us, the supreme court ultimately held that the County Commission did not have the right to use funds generated by the court fee and the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse but that the County Commission did have the right to use the proceeds of the Series 2002 Warrants for those purposes. Accordingly, insofar as the TRO enjoined the County Commission from using the proceeds of the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse, the County Commission “ ‘had the right all along to do what it was enjoined from doing.’ ” Ex parte Waterjet, 758 So.2d at 512 (quoting Nintendo of America, Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir.1994)). On the other hand, insofar as the TRO enjoined the County Commission from using funds generated by the court fee and the lodging tax to pay for the demolition of the existing courthouse and the construction of a new courthouse, the County Commission did not “ ‘ha[ve] the right all along to do what it was enjoined from doing.’ ” Id. Thus, under the test enunciated in Ex parte Waterjet, the TRO was wrongful insofar as it enjoined the County Commission from using the proceeds of the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse, and it was rightful insofar as it enjoined the County Commission from using the funds generated by the court fee and the lodging tax for those purposes.

Moreover, under the test enunciated in Ex parte Waterjet, the fact that two parties, the Alabama Historical Commission and Padgett, had standing to obtain the TRO did not make rightful that portion of the TRO enjoining the County Commission from using the proceeds of the Series 2002 Warrants to pay for the demolition of the existing courthouse and the construction of a new courthouse. Logically, therefore, the lack of standing of APA to obtain the TRO could not make wrongful that portion of the TRO enjoining the County Commission from using the funds generated by the court fee and the lodging tax for those purposes. The County Commission had no right to use the funds generated by the court fee and the lodging tax for those purposes regardless of whether APA had standing. Therefore, the rationale of the trial court that the TRO was wrongful because APA lacked standing is erroneous. Likewise, the trial court erred in concluding that the County Commission was entitled to recover all the attorneys’ fees and costs that it incurred “in defending APA’s allegations and requests for relief.” Under the holding in Ex parte Waterjet, the correct measure of the County Commission’s damages is “those damages that are ‘the actual, natural and proximate result of the [wrongful] injunction.’ ” Ex parte Waterjet, 758 So.2d at 511(quoting Alabama Cablevision v. League, 416 So.2d 433, 435 (Ala.Civ.App.1982)).

Accordingly, we reverse the trial court’s judgment insofar as it forfeited the $25,000 deposited on behalf of APA and Padgett as security for the issuance of the TRO and remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, P.J., concurs.

PITTMAN, J., concurs in the result, without writing.

THOMPSON and MURDOCK, JJ., concur in the result in part and dissent in part, with writings.

THOMPSON, Judge,

concurring in the result in part and dissenting in part.

I agree with Judge Murdock’s dissent as to the main opinion’s affirmance of the trial court’s judgment insofar as it determined that APA lacked standing and was not entitled to an award of attorneys’ fees and costs. I concur in the result as to the remainder of the main opinion.

MURDOCK, Judge,

concurring in the result in part and dissenting in part.

In this case, the trial court entered a judgment in favor of Alabama Preservation Aliance, Inc. (“APA”), and against the Conecuh County Commission and other defendants. No issue was raised as to the standing of APA to assert the claims decided in its favor by that judgment. The trial court’s judgment was appealed to the Alabama Supreme Court; no issue as to APA’s standing was raised in that appeal. That appeal resulted in the affirmance of the decision of the trial court, giving final, res judicata effect to a judgment obtained by APA against the defendants. See Pad gett v. Conecuh County Commission, 901 So.2d 678 (Ala.2004). There is no issue in this case regarding the reopening of that judgment. I therefore respectfully dissent as to the main opinion’s affirmance of the trial court’s determination that APA lacked standing and was not entitled to an award of attorney fees.

In addition, because I believe the trial court improperly reduced the amount of attorney fees and costs awarded to James Padgett, I respectfully dissent from the main opinion’s conclusion that the trial court did not abuse its discretion in awarding Padgett only $21,901.29 in attorney fees and costs.

I concur in the result as to that portion of the main opinion addressing the forfeiture of the $25,000 bond posted by APA on behalf of itself and Padgett.

      .The other defendants are County Commissioners Hugh Barrow, Jerold Dean, D.K. Bod-iford, Wendell Byrd, and Leonard Millender; the Conecuh County Public Building Authority and its members, Billy G. Mims, Sr., WJ. Reed, and Alice Ann Baldwin; and Harry Still, the Conecuh County Administrator.

      . Subsequently, the State of Alabama intervened as an additional plaintiff. The Alabama Historical Commission and the State are not parties to this appeal.

      . See the "Official Recompilation of the Constitution of Alabama of 1901, Local Amendments,” Conecuh County, § 1.