author: STUART, Justice.

text:
    Virginia Louise McCLUNG v. Lela Virginia GREEN and Bridget Williams.
    1100218.
    Supreme Court of Alabama.
    June 17, 2011.
    Rehearing Denied Sept. 9, 2011.

      Joan-Marie Dean, Huntsville, for appellant.
    J. Timothy Kyle of Russell, Straub & Kyle, Decatur, for appellees.
   STUART, Justice.

Virginia Louise McClung (“Virginia”) appeals the judgment entered by the Morgan Circuit Court reforming a January 1979 deed that conveyed a remainder interest in 12 acres of land to her and her brother, Charles Green (“Charles”), who is now deceased, as joint tenants with the right of survivorship to instead convey a remainder interest in that property to them as tenants in common. We reverse and remand.

I.

On January 24,1979, in contemplation of being divorced, Elbert Green (“Elbert”) and Loretta Green (“Loretta”) executed a separation agreement in which they agreed to convey two parcels of property in Morgan County (“the property”) to their adult children, Virginia and Charles, “as tenants in common, reserving unto themselves a life estate therein.” That same day, Elbert and Loretta executed a warranty deed reserving to themselves a life estate in the property but otherwise conveying the property to Virginia and Charles “for and during them joint lives and upon the death of either of them, then to the survivor of them in fee simple.” None of the parties involved- appear to have recognized at that time the discrepancy between the separation agreement, which provided that Virginia and Charles were to take the property as tenants in common, and the deed, which conveyed the property to them as joint tenants with the right of survivorship; the deed was recorded on January 24, 1979. On January 26, 1979, the Lawrence Circuit Court entered an order finalizing Elbert and Loretta’s divorce; that order specifically “ratified and confirmed” the separation agreement they had executed two days earlier.

In July 1992, Charles died. His sole heir was his then 21-year-old daughter, Bridget Williams (“Bridget”). In January 1999, Elbert married Lela Virginia (“Lela”). Elbert and Loretta continued to possess the property throughout this time and split the rental income that was generated from a restaurant and from trailers that were stored on the property.

On June 17, 2007, Loretta died, leaving her entire estate to Virginia. A dispute subsequently arose between Elbert and Virginia regarding who was entitled to the rental income Loretta had previously received from the property, and, on June 21, 2007, an attorney retained by Virginia sent Elbert a letter outlining Virginia’s position that she was entitled to one-half of the rental income from the property. On July 11, 2007, Elbert initiated this action in the Morgan Circuit Court by filing a complaint seeking a judgment declaring him to be the rightful owner of all rents received from the property. He also sought reformation of the January 1979 deed, arguing that he and Loretta had intended for Virginia and Charles to take the property as tenants in common after his and Loretta’s life estate expired but that, owing to a mutual mistake, the deed had erroneously conveyed the property to Virginia and Charles as joint tenants with the right of survivorship. He was joined in the complaint by his granddaughter Bridget, who would inherit her deceased father Charles’s future one-half interest in the property if the deed was reformed. Absent reformation, Charles’s future interest in the property would have been extinguished upon his death, and Virginia would take sole possession of the property upon Elbert’s death. Virginia filed an answer opposing Elbert’s and Bridget’s claims and asserting a counterclaim seeking one-half of the rental income derived from the property.

On July 28, 2009, Elbert died, and his widow Lela was substituted as a plaintiff. The trial court conducted a bench trial on February 17, 2010, and, on July 28, 2010, entered its final judgment, holding, in pertinent part, as follows;

“Accordingly, it is ordered and adjudged by the court that the subject deed is reformed and recast, in part, to read that the fee simple remainder interests in the tracts of land more particularly described therein are conveyed to Virginia Louise McClung and Charles Elbert Green, as tenants in common and not as joint tenants with right of surviv-orship.
“It is further ordered and declared by the court that after the death of Loretta H. Green and until his later death, Elbert O. Green was entitled to receive and retain for himself all rents derived from the real estate more particularly described in the subject deed.”

Virginia’s subsequent motion to alter, amend, or vacate that judgment was denied on October 15, 2010, and, on November 19, 2010, Virginia filed her notice of appeal to this Court.

II.

This case was decided by the trial court without a jury.

“ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ Philpot v. State, 843 So.2d 122, 125 (Ala.2002). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Id.”

Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005).

On appeal, Virginia challenges only that part of the trial court’s judgment reforming the January 1979 deed; she expressly states that she is not contesting the trial court’s judgment insofar as it held that Elbert was entitled to the entirety of the rental income derived from the property during the period between Loretta’s death and his own death. The issue before this Court is therefore whether sufficient evidence was adduced at trial to support the trial court’s reformation of the deed.

III.

In Beasley v. Mellon Financial Services Corp., 569 So.2d 389, 393-94 (Ala.1990), we explained the law relevant to the reformation of deeds as follows:

“Alabama Code 1975, § 35-4-153, provides that any person may sue to reform a deed, mortgage, or other conveyance that is based on fraud or mutual mistake. In the instant case, there is no allegation of fraud; therefore, the reformation must have been based upon mutuality of mistake between the parties. Where the reformation is based on mistake, the existence of a valid agreement to which the instrument can be made to conform is essential. The trial court cannot make the instrument express a new contract for the parties. Rather, the principle on which reformation is based is clear — if the intent of the parties was to convey the property actually described, but the parties were induced to enter into the agreement by a mistake as to the extent or nature of the contract, there can be no reformation; however, ‘if the intent was to convey the property as it was known to exist, but the mistake was in the description, reformation is proper.’ McClintock on Equity, Ch. 8, § 95 at 258 (1948). (Emphasis added.) Such an error establishes mutuality of mistake, and, when one seeks reformation it is immaterial who employed the draftsman. See Clemons v. Mallett, 445 So.2d 276 (Ala.1984). Where the sole ground for reformation is mistake, the mistake must be mutual as to all of the parties, but only in the sense that they must all have agreed to the same terms and have mistakenly assumed that those terms were properly expressed in the instrument. Where there are several parties to the transaction, all parties must have intended the same agreement or else there can be no reformation. Whenever there has been a mistake in a deed so that it fails to express what the parties intended, a court of equity may, as between the parties, reform it in accordance with the transaction as it was actually agreed upon. See City of Oneonta v. Sawyer, 244 Ala. 25, 12 So.2d 82 (1943).
“In order to reform a deed pursuant to the statute so as to express the intentions of the parties thereto, the pai'ty seeking reformation has the burden of proving with clear, convincing, and satisfactory evidence that the intention he seeks to substitute was that of both parties. Touchstone v. Peterson, 443 So.2d 1219 (Ala.1983)

As in Beasley, there is no allegation of fraud in the instant case, and the trial court ordered the deed to be reformed solely on the basis of mistake. In Pullum v. Pullum, 58 So.3d 752, 757 (Ala.2010), we further explained that when property is conveyed as a gift, with no consideration being given by the grantee, reformation is permissible based on a unilateral mistake of the grantor regardless of the understanding of the grantee at the time of the conveyance. Therefore, we must determine whether there is evidence in the record indicating that both Elbert and Loretta intended to convey a remainder interest in the property to Virginia and Charles as tenants in common — as opposed to joint tenants with the right of survivorship — at the time they executed the January 1979 deed. See Fadalla, 929 So.2d at 434 (“In determining whether a mutual mistake exists, ‘[t]he initial factual question is, of course, what the parties intended the instruments to express at the time they were executed.’ ” (quoting Jim Walter Homes, Inc. v. Phifer, 432 So.2d 1241, 1242 (Ala.1983), citing in turn Behan v. Friedman, 218 Ala. 513, 119 So. 20 (1928))).

With regard to Elbert, there is some evidence in the record indicating that, at the time the January 1979 deed was executed, he thought it conveyed a remainder interest in the property to Virginia and Charles as tenants in common. When questioned by her attorney at trial, Bridget gave the following testimony on this subject:

“Q. And during [a June 2007 meeting that Elbert, Lela, and Bridget had with their attorney after Elbert received the June 21, 2007, letter from Virginia’s attorney] was there a discussion, about the deed?
“A. [Elbert] brought it up to your attention and was talking and stated that he wanted you to know and wanted to make sure that if something happened to him that I was going to get my share.
“Q. And then at that point, he got some advice that he wasn’t expecting to hear?
“A. Right.
“Q. And what happened when he got that advice?
“A. He was upset because he thought all along—
“[Virginia’s attorney]: Well, we object to ‘he thought.’
“Q. What did he say about the advice?
“A. That that’s not the way that it was supposed to be written.”

This testimony indicating that Elbert was surprised to learn that Bridget would not inherit Charles’s interest in the property supports the trial court’s finding that Elbert’s intent in executing the January 1979 deed was for Virginia and Charles to take a remainder interest in the property as tenants in common. However, before the deed can be reformed to conform with Elbert’s intent, there must also be evidence indicating that Loretta had that same intent when the deed was executed. The only specific evidence adduced at trial regarding Loretta’s intent was the following exchange between Virginia and her attorney after Virginia was questioned about Loretta’s understanding of the deed:

“Q. And how long have you known of the existence of that deed?
“A. I have been told about it ever since the divorce.
“Q. Okay.
“A. It [received] particular attention when my brother died.
“Q. All right. Now, who told you about it after the divorce?
“A. Mother, you know, told me about it many times.
“Q. Okay. What did your mother tell you about that deed?
“A. When they got the divorce, she was telling me the arrangements that they had made personally about other property and that the original tract of property had been deeded to me and my brother as sole survivors.
“Q. Elaborate on that, as sole survivors. Did she tell you whether or not there was a survivorship clause?
“A. She said that if something happened to me, everything would go to Charles. If something happened to Charles, everything would go to me.
“Q. Okay. So it would be your testimony that your mother was aware of the contents of the deed, Plaintiffs Exhibit 2, as of 1979 or '80 or thereabouts?
“A. Yes, yes.”

Of course, this testimony does not conclusively establish that the January 1979 deed accurately reflected Loretta’s intent, because, under the ore tenus rule, the trial judge is empowered to weigh the credibility of witness and determine how much weight to assign to their testimony. Eubanks v. Hale, 752 So.2d 1113, 1148 (Ala.1999). Nevertheless, before the January 1979 deed can be reformed, there must be at least some evidence indicating that Loretta did not intend to convey the remainder interest in the property to Virginia and Charles as joint tenants with rights of survivorship.

Lela and Bridget argue, first, that the separation agreement and the divorce judgment provide sufficient evidence of Loretta’s intent to convey the remainder interest to Virginia and Charles as tenants in common to justify reformation of the January 1979 deed. We disagree. The discrepancy between the documents establishes that either the separation agreement or the deed did not accurately reflect Loretta’s intent at the time they were executed; however, the mere fact that there is a discrepancy between those documents sheds no light on which document is, in fact, erroneous. Indeed, if the discrepancy between the separation agreement and the deed is a sufficient basis upon which to reform the deed pursuant to § 35-4-153, Ala.Code 1975, it would also have to serve as a sufficient basis upon which to reform the separation agreement pursuant to § 8-1-2, Ala.Code 1975, and the resolution of the discrepancy would then hinge merely on who sought to reform which document first, as opposed to specific evidence of the intent of the parties.

Lela and Bridget next argue that Elbert’s and Loretta’s intent may be gleaned from a note the attorney who assisted Elbert and Loretta with both the separation agreement and the deed wrote in approximately 1990 when Elbert and Lela went to him to inquire about selling the property. That note states in its entirety: “Mr. [Elbert] Green — all 4 have to sign to sell any — yourself, Virginia, Charles’s daughter Bridget & Loretta H. Green!” As Lela and Bridget have correctly noted, it would have been necessary for Bridget to authorize any conveyance of the property only if Virginia and Charles had been conveyed a future interest in the property as tenants in common and Bridget had inherited Charles’s interest when he died.

At trial, Lela stated that during her and Elbert’s meeting with the attorney, the attorney did not review the separation agreement, the divorce judgment, the deed, or any other documents before expressing his opinion about how the property could be sold. In deposition testimony submitted to the court, the attorney stated that he would have reviewed the deed before giving this advice and that he did not know whether he also looked at the separation agreement “because that deed speaks for itself.” The attorney also acknowledged that during his many years of practice he had prepared at least some deeds containing errors that subsequently had to be corrected; however, he also expressed his opinion that the deed in this case was not erroneous. Ultimately, therefore, this note might shed some light on Elbert’s understanding of the deed — if one surmises that the attorney based his advice at least partially on information provided by Elbert — but evidence of Elbert’s intent does not prove Loretta’s intent. In sum, this note and the companion testimony of the attorney give no indication that the deed failed to encapsulate Loretta’s intent and, because there is likewise no evidence to that effect elsewhere in the record, the judgment of the trial court reforming the January 1979 deed must be reversed.

IV.

Following a bench trial, the trial court ordered that the January 1979 deed conveying a future interest in the property to Virginia and Charles as joint tenants with the right of survivorship be reformed to instead convey to them a future interest in that property as tenants in common. However, because there is no evidence in the record indicating that Loretta intended to convey the property to Virginia and Charles as tenants in common as opposed to joint tenants with the right of survivor-ship when she executed the deed in January 1979, reformation of the deed pursuant to § 35-4-153 was inappropriate. Accordingly, the trial court’s judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      1. The attorney representing Bridget at trial was the same attorney with whom Elbert, Lela, and Bridget met in June 2007.

      . Virginia speculates in her brief that perhaps her parents changed their minds regarding the manner in which they wished to convey the remainder interest in the interval between when they executed the separation agreement and when they executed the deed; however, given that Elbert and Loretta apparently executed the documents during the same meeting with their attorney, such a scenario seems implausible.

      . The attorney offers no explanation as to why the legal advice he gave was inconsistent with the deed.

      .Importantly, the facts in this case differ from those in Pullum, in which this Court upheld the reformation of a deed when there was testimony from a deceased attorney’s legal assistant acknowledging that there had been a clerical error in the preparation of that deed. 58 So.3d at 759. In this case, the attorney who prepared the deed in question specifically testified that he did not think that there was an error in the deed sought to be reformed.


source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    Ex parte Ashley RICH, District Attorney of Mobile County. Ex parte State of Alabama. (In re Jesse Griffin et al. v. Robert Bentley et al.).
    1101031 and 1101033.
    Supreme Court of Alabama.
    Sept. 16, 2011.

      Ashley Rich and Martha Tierney, Office of the District Attorney of Mobile County, Mobile, for petitioner Ashley Rich.
    Luther Strange, atty. gen., and John C. Neiman, Jr., and Henry T. Reagan, deputy attys. gen., for the petitioner State of Alabama.
    Donald Rush Jones, Jr., Montgomery, for respondents.

      . The action filed in the Montgomery Circuit Court named as a defendant Bob Riley, then governor of the State of Alabama. While this action was pending in the circuit court, Robert Bentley was elected governor and was automatically substituted as the defendant. See Rule 25(d), Ala.R.Civ.P.

   MAIN, Justice.

Ashley Rich, district attorney of Mobile County, and the State of Alabama (“the State”) have filed separate petitions for a writ of mandamus directed to the Montgomery Circuit Court in an inverse-condemnation action filed by Jesse Griffin and others (“Griffin”) in the Montgomery Circuit Court (“the Montgomery action”). Griffin filed the Montgomery action seeking compensation for property, namely electronic “bingo” machines and related equipment and money, previously confiscated by the State from Griffin’s facility in Mobile County. Citing Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587 (Ala.2010), Rich and the State each argue that the Montgomery Circuit Court is without subject-matter jurisdiction to interfere with the executive branch’s enforcement of the criminal law. The State further argues that the Montgomery Circuit Court is without subject-matter jurisdiction based on principles of sovereign immunity. We consolidated the petitions for the purpose of writing one opinion. We grant the petitions and issue the writs.

Factual Background, and Procedural History

On February 25, 2010, Griffin opened and operated a facility in Chickasaw, in Mobile County, containing 25 electronic devices Griffin promoted as lawful charitable bingo machines. That same day, members of the Governor’s Task Force on Illegal Gambling (“the Task Force”), established by then Governor Bob Riley, seized the 25 machines, as well as other items, from the facility. The machines were transported to a state warehouse in Montgomery County to be stored temporarily.

On March 1, 2010, Griffin filed her inverse-condemnation action in the Montgomery Circuit Court, seeking compensation for the machines and other property she says was confiscated in Mobile County pursuant to the seizure by the Task Force. At some point after Griffin filed the Montgomery action, the machines were transported by the executive branch back to Mobile County to be stored at a facility there. On March 18, 2010, the Mobile County district attorney filed a forfeiture action in the Mobile Circuit Court (“the Mobile action”). The defending parties in the Montgomery action and in the Mobile action sought dismissal or transfer of the plaintiffs’ respective claims for lack of jurisdiction, asserting in each case that the complaint in their respective action was superior to the complaint in the other.

At a status conference held in the Montgomery action, the deputy legal advisor for the Governor of Alabama, the special prosecutor then in charge of the Task Force, and an assistant district attorney from the Mobile County district attorney’s office who was also assigned to the Task Force presented argument that the Montgomery action was due to be transferred to the Mobile Circuit Court or dismissed for lack of jurisdiction, and Griffin’s counsel argued to the contrary.

After receiving supplemental briefs from the parties and a number of motions from Griffin, the Montgomery Circuit Court conducted a hearing on March 14, 2011. At that hearing, the Montgomery Circuit Court, after confirming with the governor’s representative at the hearing that the electronic-bingo machines had been brought to Montgomery County after they were removed from Griffin’s facility by the Task Force and then had been transported back to Mobile County, began instructing the defendants in the Montgomery action to bring the machines back to Montgomery County for further proceedings, notably for an evidentiary hearing to test the legality of the machines. The following exchange occurred:

“MR. REAGAN [deputy attorney general representing the defendants in the Montgomery action]: Your Honor, if I may speak to that. We believe that the Court here lacks subject matter jurisdiction.
“THE COURT: And /all can’t defeat my jurisdiction by taking matters outside of what’s rightly before the Court. See, this matter is rightly, before the Court. You should have gotten my permission, all right, to have the machines moved back to Mobile County. Because at the time [Griffin] filed the lawsuit, I had jurisdiction over the—
“MR. REAGAN: Your Honor, we believe that—
“THE COURT: Now, you can believe it or not. Now, I can show you better than I can tell you.
“MR. REAGAN: I understand, Your Honor. The — may I ask Your Honor if, do you intend to have an evidentiary hearing?
“THE COURT: When the machines get back up here. When they’re going to get back up here? I’ll give y’all ten days to get them back up here.
“MR. REAGAN: But, Your Honor, we believe you don’t have subject matter jurisdiction to have—
“THE COURT: I had it and you can’t defeat it.
“MR. NEIMAN [deputy attorney general representing the defendants in the Montgomery action]: Your Honor, to be clear. Our subject matter jurisdiction argument doesn’t depend on where the machines were—
“THE COURT: But I’m — I’m not going to even — if I don’t have subject matter jurisdiction, I can’t even rule on your motion, can I?
“MR. NEIMAN: Well, you can rule on our motion to dismiss for lack of subject matter jurisdiction.
“THE COURT: No. Get the machines back up here and I’ll hear your motion.
“MR. NEIMAN: But — I mean, the problem, Your Honor, is that the supreme court in the Tyson v. Macon County Greyhound, Park [, 43 So.3d 587 (Ala.2010),] case held that a court cannot exercise civil jurisdiction to issue the sort of declaratory—
“THE COURT: But you brought— no, no, no. You brought the machines up here.
“MR. NEIMAN: But—
“THE COURT: Now, if you had left — listen to me, now.
“MR. NEIMAN: Yes, Your Honor.
“THE COURT: If you had left them in Mobile County and you filed this lawsuit, I would have agreed with you, but you brought them up here, brought them into this jurisdiction. And you could not take them out like you did. Okay?
“MR. JONES [Griffin’s counsel]: Your Honor, can I make one distinction in what he just said? [It] [i]s that [the] Macon County case was a preseizure case where the court said you cannot issue an injunction to keep somebody from seizing something. That’s why we went ahead and opened it and let them seize them so that you could have jurisdiction.
“THE COURT: Well, y’all brought them up here to the jurisdiction.
“MS. TIERNEY [Mobile County deputy district attorney]: Judge, I’d like to say something on the jurisdiction if I may.
“THE COURT: No. We’re not going to say anything about jurisdiction until y’all get the machines back up here.
“MS. TIERNEY: But the Court of Mobile County has jurisdiction of those games.
“THE COURT: No, ma’am.
“MS. TIERNEY: Under our—
“THE COURT: I’ll hold one, two, three in contempt this morning. And if you think I’m playing, you need to ask somebody. Now, do you want me to have a contempt proceeding, or do y’all want to get the machines back up here?
“Sheriff, get me — I need two more deputies.
“MR. NEIMAN: We have no desire to be held in contempt and we will follow whatever order the Court issues here. I — I make that clear. Your Honor.
“THE COURT: Well, I need one more deputy. I think you can handle one and leave the female for her.
“MR. REAGAN: Your Honor, I have no intentions of violating any order you issue whatsoever.
“MS. TIERNEY: I do not intend to violate any court orders, Judge.
“THE COURT: All right. Now, y’all get the machines back up here. I’ll entertain your argument.
“MR. REAGAN: Thank you, Your Honor.
“THE COURT: I’m not going to let anybody — you can tell the Governor, the chief justice, district attorney for Mobile County — I’m not going to let anybody run roughshod over me.
“MR. NEIMAN: That’s never been anyone’s intent in this case, Your Honor. I feel comfortable making that representation to the Court.
“THE COURT: And I do think I’ve got the authority to hold the Governor in contempt if we need to go there. Now, get the machines back up here. How many is it?
“MR. JONES: It’s twenty-five. For the purposes of demonstration here, I think we only need three.
“THE COURT: Well, I need the machines back up here. I’ll make whatever rulings I need to make on the matter. And it may include the case going back down to Mobile. Okay? There’s such a thing called rule of law.”

(Rich’s petition, Ex. 15, pp. 11-15.) Later in the hearing the circuit court instructed Griffin’s counsel not to “quibble over semantics,” in response to which Griffin’s counsel apologized to the court and stated: “Too many deputies in here for me not to apologize.” (Rich’s petition, Ex. 15, pp. 18, 19.) The Mobile County deputy district attorney then asked to be allowed to explain for the record that the only reason the electronic-bingo machines had been brought to Montgomery County was that the seizure of the machines occurred late at night and the closest available warehouse in which to temporarily store the machines was in Montgomery County. She and the circuit court then discussed the fact that Griffin had filed the Montgomery action while the machines were in Montgomery, and the following exchange occurred:

“THE COURT: Hold on.
“MS. TIERNEY: Yes, sir.
“THE COURT: You think the Mobile [district attorney] will come and get you out of jail?
“MS. TIERNEY: Well, I don’t expect to go to jail, Judge. I will obey your orders—
“THE COURT: Well, if you keep on, now. You might be surprised.
“MR. NEIMAN: Your Honor, I — the only — the only point—
“THE COURT: Listen. The only thing I’m saying is, let’s get the machines back up here. I’ll hear your arguments.
“MR. NEIMAN: Understood, Your Honor.
“THE COURT: I may agree with your argument. I may not agree, but I want the machines up here.
“MR. NEIMAN: We just want you to understand nobody has been trying to run roughshod over anybody.
“THE COURT: Well, I feel like y’all been doing that over me, though.
“MR. NEIMAN: Well, that’s — that’s not been anybody’s intent, Your Honor. And I just want to assure the Court of that.
“MS. TIERNEY: And so far, Judge, we’ve complied with all your orders.
“MR. NEIMAN: And we’ll continue to do so. Thank you.
“THE COURT: That’s why you’re not in jail.
“MS. TIERNEY: Thank you, sir.
“THE COURT: As long as you do that — as long as you do that, you’ll be all right. But just get them back here. Y’all may have to take them back to Mobile. I don’t know, but I don’t like the fact that nobody has asked me whether or not the machines should go back to Mobile.”

(Rich’s petition, Ex. 15, pp. 20-22.) After additional discussion, the following exchange occurred:

“THE COURT: And I just don’t like the fact what y’all did. I don’t know if it was you. Y’all look like a new set of lawyers.
“MR. JONES: They are.
“THE COURT: Okay.
“MR. REAGAN: Judge, we’re from the Attorney General’s office and we’ve been asked by Governor Bentley to represent him in this matter.
“THE COURT: All right. But I’m just saying I had another set down here that I pretty much shaped and molded, you know. And they wouldn’t dare do anything without asking the judge.
“MR. REAGAN: Yes, Your Honor.
“THE COURT: So I guess are — y’all private lawyers or—
“MR. REAGAN: No, sir. We’re both assistant attorney generals.
“THE COURT: All right. Up there with Mr. [Luther] Strange [the attorney general].
“MR. REAGAN: Yes.
“MR. NEIMAN: That’s correct.
“THE COURT: Okay. All right. Well, y’all got to get — you know — what y’all do before this?
“MR. REAGAN: I was Governor Riley’s legal advisor. Your Honor.
“THE COURT: Well, you know how I am.
“MR. REAGAN: I do. I do. Judge.
“(Off-the-record discussion held.)
“MR. NEIMAN: I was in the private practice in Birmingham, Your Honor.
“THE COURT: Oh, no wonder.
“MR. JONES: Bradley, Arant.
“THE COURT: Got a Birmingham and Mobile lawyer.”

(Rich’s petition, Ex. 15, pp. 23-24.) The Montgomery Circuit Court again orally instructed the defendants to bring the machines back to Montgomery County within 10 days, and the hearing adjourned. The Montgomery Circuit Court scheduled another hearing for March 28, 2011.

Rich filed a petition for a writ of mandamus with this Court, which this Court dismissed on the basis that the Montgomery Circuit Court had not entered an order directing that the machines be brought to Montgomery County. Ex parte Rich (In re Griffin v. Bentley) (No. 1100702, May 18, 2011). On June 7, 2011, the Montgomery Circuit Court entered a written order, stating, in pertinent part:

“Accordingly, this Court hereby orders the Defendants to produce the electronic bingo machines, computer server, any monies seized, and all other seized property to this Court at the Montgomery County Courthouse within 10 days of this Order. This case is set for evi-dentiary hearing on the legality of the machines on Monday, July 11, 2011 at 9:00 a.m. in Courtroom 4A of the Montgomery County Courthouse.
“Further, [Griffin] and Defendants] and their respective expert witnesses shall have access to the machines and server during normal business hours of the Courthouse for preparation for trial.
“Further, [Griffin] is instructed to set up the machines in the Montgomery County Courthouse, at a location to be determined by the Court, to provide a live demonstration of the machines to the Court.
“Further, the cash seized and in the possession of the Defendants shall be deposited with the Circuit Clerk of Montgomery County and shall be held in the Clerk’s account pending final outcome of this matter.”

(Rich’s petition, Ex. 18.)

Rich and the State then filed the petitions for a writ of mandamus now before this Court. This Court issued an order staying the proceedings in the Montgomery action and ordered Griffin and the Montgomery Circuit Court judge, as respondents, to file answers and briefs.

Standard of Revieiv

“ ‘ “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)). ‘The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.’ Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003).”

Ex parte Cincinnati Ins. Co., 51 So.3d 298, 302 (Ala.2010).

Analysis

In their respective mandamus petitions, Rich and the State each argue that the Montgomery Circuit Court is without subject-matter jurisdiction to interfere with the executive branch’s enforcement of the criminal law by civil action. Thus, they argue that the Montgomery action is due to be dismissed.

In her answer to the petitions, Griffin asserts that Tyson is not controlling in this case because the facts are different and that the Montgomery Circuit Court has jurisdiction over her action. According to Griffin, the forfeiture action subsequently filed by the Mobile County district attorney in the Mobile Circuit Court was contrary to the dual-litigation statute, § 6-5-440, Ala.Code 1975, and to the compulsory-counterclaim rule, Rule 13(a), Ala.R.Civ.P.

As Deputy District Attorney Tier-ney and counsel for the State repeatedly attempted to argue to the Montgomery Circuit Court, “the trial court ‘lacks subject-matter jurisdiction to interfere with a criminal proceeding by civil action.’ ” Tyson, 43 So.3d at 591 (quoting an order entered by this Court in Barber v. Houston County Econ. Dev. Ass’n (No. 1090444, January 15, 2010)). Further, this Court implicitly recognized in Tyson that a forfeiture action filed pursuant to § 13A-12-30, Ala.Code 1975, was logically an extension of law enforcement’s efforts to enforce the criminal laws of the State of Alabama.

The seizure of the machines and other evidence by the Task Force took place in Mobile County pursuant to an investigation into illegal gambling in that county. The facility where the machines were operating was in Mobile County. That the machines were temporarily stored in Montgomery County after they were seized is immaterial in this case. Similarly, the fact that Griffin won a proverbial race to the courthouse steps to file her civil action in the Montgomery Circuit Court before the Mobile County district attorney brought the forfeiture action in the Mobile Circuit Court does not obliterate the fact that the search and seizure took place as part of a criminal investigation into illegal gambling in Mobile County-

The Montgomery action constituted an attempted interference with the criminal action in Mobile County by, including, but not limited to, ordering that the electronic-bingo machines and other evidence be brought back to Montgomery County so that the Montgomery Circuit Court could hold a hearing to adjudicate the legality of the very machines made the subject of the criminal proceedings and by threatening the attorneys for the executive branch with arrest for contempt when they attempted to explain to the Montgomery Circuit Court that it was without subject-matter jurisdiction to order the return of the machines to Montgomery County.

Conclusion

Based on the foregoing, we conclude that neither the fact that the electronic-bingo machines were brought to Montgomery County to be temporarily stored nor the fact that Griffin filed the Montgomery action before the Mobile County district attorney filed the Mobile action erases the fact that the events in this case arose from a criminal action initiated by the investigation of the facility and the resulting seizure of the machines and other evidence. Thus, Griffin’s reliance on the dual-litigation statute and the compulsory-counterclaim rule is misplaced. We grant Rich’s and the State’s petitions for a writ of mandamus, and we direct the Montgomery Circuit Court to vacate its June 7, 2011, order. We further direct the trial court to issue an order dismissing the Montgomery action for lack of subject-matter jurisdiction.

1101031 — PETITION GRANTED; WRIT ISSUED.

1101033 — PETITION GRANTED; WRIT ISSUED.

WOODALL, STUART, BOLIN, PARKER, MURDOCK, SHAW, and WISE, JJ., concur.

MALONE, C.J., recuses himself.

      . Counsel for the State sought dismissal of the Montgomery action, asserting, among other grounds, that the property was subject to a condemnation action in the Mobile Circuit Court; although not a party to the Montgomery action, a Mobile County deputy district attorney appeared at the proceedings in the Montgomery action to argue for dismissal of the Montgomery action as well.

      . A number of cases related to the legality of electronic gaming machines and “charitable electronic bingo” have been progressing though the court system in Alabama. For a detailed discussion of the recent history of that subject, including the Task Force, see Tyson v. Jones, 60 So.3d 831 (Ala.2010), and Ex parte State (In re Riley v. Cornerstone Com

        munity Outreach, Inc.), 57 So.3d 704 (Ala.2010).

      . Griffin filed an answer and brief; the Montgomery Circuit Court judge did not favor us with an answer or brief.

      . Because of our disposition of this issue, we need not address the State's additional arguments regarding sovereign immunity.

      . Further, the Montgomery Circuit Court did not need the machines or other evidence seized to ascertain whether it had subject-matter jurisdiction over the action filed in the Montgomery Circuit Court.