author: MURDOCK, Justice.

text:
    VOLCANO ENTERPRISES, INC., d/b/a Club Volcano v. Peggy Bender RUSH, as administratrix of the Estate of Derric Edwin Rush, deceased, et al.
    1121185.
    Supreme Court of Alabama.
    May 9, 2014.
    Dwayne L. Brown, Montgomery, for appellant.
    D. Leon Ashford, James R. Moncus III, and Bruce J. McKee of Hare, Wynn, New-ell & Newton, LLP, Birmingham, for ap-pellee.
   MURDOCK, Justice.

Volcano Enterprises, Inc., d/b/a Club Volcano (“Volcano Enterprises”), appeals from the denial of its Rule 60(b)(4), Aa. R. Civ. P., motion to set aside the judgment entered against it in a wrongful-death action filed by Peggy Bender Rush, as ad-ministratrix of the estate of her husband Derric Edwin Rush and as the widow of Derric Edwin Rush, and by Dashton Rush, the Rushes’ minor son, by an through his mother and next friend, Peggy Bender Rush (hereinafter collectively referred to as “Rush”). We reverse and remand.

I. Facts and Procedural History

This appeal stems from a default judgment entered against Volcano Enterprises based on its failure to answer a complaint served upon it by publication under Rule 4.3, Aa. R. Civ. P. For purposes of this appeal, the uncontested facts provided in Rush’s complaint are the only facts properly before us.

In pertinent part, the complaint alleges that police officer James Lenoir Kendrick met a friend of his, an off-duty police officer, at Club Volcano (sometimes referred to hereinafter as “the club”) after Kendrick’s shift had ended. The complaint alleges that Kendrick consumed a substantial amount of alcohol while sitting in a parked vehicle in the parking lot of the club, after which he entered the club with his friend. The complaint further alleges that Kendrick “remained for several hours” in the club, that while there he “became visibly intoxicated,” and that, “despite his “visibly intoxicated condition, [he] was served additional alcohol and allowed to leave in an intoxicated condition.” Finally, the complaint alleges that, in his intoxicated condition, Kendrick drove his vehicle in a manner that caused the death of Derric Edwin Rush.

On August, 11, 2011, Rush filed the complaint in the Jefferson Circuit Court, naming as defendants Kendrick and Volcano Enterprises and seeking damages based upon a claim of “wrongful death.” Daryl Williams is the owner of Volcano Enterprises and its designated agent for service of process. Rush attempted to serve Volcano Enterprises by attempting to effect personal service on Williams in that capacity.

In a “Motion for Extension of Time to Serve Defendant Volcano Enterprises and Service by Publication” filed by Rush on December 12, 2011, Rush’s counsel stated:

“On September 29, 2011, we received a ‘No Service’ notice from the Clerk’s office. On November 9, 2011, plaintiffs’ counsel was notified that the summons and complaint could not be served on Daryl Williams, the registered agent for Volcano Enterprises, Inc., at 836 Spring Street, Birmingham, Alabama, due to it being destroyed in the [April 2011] tornado. In addition to efforts by the Jefferson County Sheriff Department to serve Daryl Williams, the registered agent for Volcano Enterprises, plaintiffs’ counsel has attempted service through an alias summons by personal process server.”

Rush attached to the motion an affidavit from Scott Hadly, a hired process server, in which Hadly averred, in pertinent part:

“2. I have made the following efforts to serve Daryl Williams, the registered agent for Volcano Enterprises, at Club Volcano:
“11/19/11 @6:08pm. Spoke with man inside bar icing down the beer, who told me he did not know of a Daryl Williams, that the bar manager was named Leonard Smith and I should come back when he was on.
“11/20/11 @6:57 pm no one there— could not get in.
“11/27/11 @7:14pm could not get in.
“11/27/11 @7:14pm no one admitted to being or knowing a Daryl Williams.
“12/3/11 @9:08 pm Same thing, no one would admit knowing anyone by that name.
“3.... Volcano Enterprises, Inc., d/b/a Club Volcano, is aware of the many efforts I have made to perform service. [Volcano Enterprises] employees have been informed of the nature of the papers to be served and that there is a lawsuit pending against Volcano Enterprises.”

Additionally, on December 9, 2011, Hadly signed a “Return of Service” stating that the summons and complaint had not been served on Volcano Enterprises because Volcano Enterprises had “avoided service.”

In the motion for service by publication, Rush noted that,

“[p]ursuant to Rule 4.3[, Ala. R. Civ. P.], numerous efforts have been made to serve Daryl Williams, the only known registered agent of Volcano Enterprises. Plaintiffs’ counsel, through their process server, has been informed that Daryl Williams cannot be found in the state of Alabama and that his home was destroyed by the April tornado. Plaintiffs’ counsel moves the Court to deem these circumstances as evidence of service under Rule 4.3(c) and allow service by publication to defendant Volcano Enterprises.”

On December 19, 2011, the trial court granted the motion to serve Volcano Enterprises by publication. Thereafter, Rush had an affidavit of publication published in the Alabama Messenger, a semi-weekly newspaper published in Jefferson County, for four consecutive weeks on February 8, 2012, February 15, 2012, February 22, 2012, and March 1, 2012. Volcano Enterprises did not file an answer or make any appearance in the action.

On April 18, 2012, Rush filed an application for a default judgment against Volcano Enterprises. The following day the trial court entered a default. judgment against Volcano Enterprises and in favor of Rush with leave to prove damages.

A jury trial on the claims against Kendrick and on the issue of damages as to Volcano Enterprises was held on February 25, 2013. The jury entered a verdict on February -27, 2013, in favor of Rush and against Kendrick. On March 1, 2013, the trial court entered a final order pursuant to the verdict, awarding $3.25 million in damages against Kendrick, who appeared and defended against the action, and $37 million in damages against Volcano Enterprises.

On March 29, 2013, Volcano Enterprises filed a “Motion to Alter, Vacate, or Amend or in the alternative Motion for a New Trial.” Pertinent to this appeal, the motion sought to set aside the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., on the ground that “said judgment is void due to the lack of in personam jurisdiction over [Volcano Enterprises] because proper service has not been effected pursuant to Rule 4.3 of the Alabama Rules of Civil Procedure.” Volcano Enterprises contended that Rush did not present facts sufficient to warrant service by publication based on avoidance of service by Volcano Enterprises. In support of its motion, Williams filed an affidavit executed on March 29, 2013, that provided, in pertinent part:

“3. The physical office of Volcano [Enterprises] for the Registered Agent, as registered with the Secretary of the State of Alabama is 836 Spring Street Birmingham, AL 35214, which is my personal residence.
“4. In April of 2011, my personal residence was struck by a tornado and totally destroyed. As soon as practical, and after public access was granted to the area, the mailbox which serviced the address was fully functional. I have continued to receive mail at the physical address of the Registered Agent through the present date and have received no mail, certified mail, registered mail or any other correspondence or communication regarding any attempt or effort to deliver legal documents to me as the Registered Agent for Volcano [Enterprises] and which pertain to the litigation in this case.
“5. Although I am the Registered Agent for Volcano [Enterprises], I do not manage the [Club] Volcano and do not attend to its daily functions. I do not participate in its day to day operations.
“6. I have two (2) managers who handle the day to day operations and who deal with and communicate with the employees of the facility. Neither the management nor the employees are Registered Agents of Volcano [Enterprises] and are not authorized and have never been authorized to accept process on behalf of Volcano [Enterprises].
“7. I first learned about the lawsuit against Volcano [Enterprises] after entry of judgment when I was informed by an acquaintance that they had heard about the judgment on the news.... ”

On April 30, 2013, Rush filed a response in opposition to Volcano Enterprises’ motion. Rush attached to her response a copy of court records showing that over 30 filings had been mailed to Williams’s home address during the course of litigation and that none of those filings had been returned as undelivered. The filings included, among other documents: Kendrick’s answer to the complaint, subpoenas to various nonparties, Kendrick’s motion for leave to appear at trial, motions in li-mine — including one such motion filed by Rush specific to Volcano Enterprises, the parties’ proposed jury charges, and the court order entering judgment on the jury verdict.

Additionally, in an effort to refute Williams’s assertion that he was not involved in the daily functions of Club Volcano, Rush submitted excerpts from- files of the Alabama Alcoholic Beverage Control Board (“the ABC Board”) pertaining to Volcano Enterprises. Those documents showed that during the period leading up to the incident, Williams signed and filed documents with the ABC Board on behalf of Volcano Enterprises. The filings included affidavits executed by Williams for the renewal of Club Volcano’s liquor licenses, over the course of several years and documents showing that at least two separate inspections of Club Volcano were performed by ABC Board agents in 2009, during which violations were found and for which Williams had signed violations notices and had paid fines, that án ABC Board agent had personally served Williams with an insufficient-fund/payment notice, and that payments had been made to the ABC Board on behalf of Club Volcano by money orders signed by Williams. Rush also submitted a copy of a complaint Williams had filed in the Madison Circuit Court against the City of Huntsville in February 2013 on behalf of Volcano Enterprises for its establishment in Huntsville, which averred that “Mr. Williams has twenty years of experience owning, managing, and operating adult entertainment clubs.”

Volcano Enterprises filed a motion to strike Rush’s evidentiary submissions. Volcano Enterprises argued that the submissions were filed late under Rule 59(c), Ala. R. Civ. P., and that the submissions were not relevant to demonstrating that Williams actively managed Club Volcano. On May 21, 2013, the trial court denied Volcano Enterprises’ motion to strike.

On May 2, 2013, the trial court held a hearing oh Volcano Enterprises’ motion to set aside the default judgment. On May 21, 2013, the trial court entered an order denying Volcano Enterprises’ motion to set aside the default judgment, concluding, among other things, that it did not find Williams’s affidavit credible in certain respects. Among other things, the court stated that it “reasonably inferred that Club Volcano employees probably knew Daryl Williams and that they probably would not falsely state to a process server that they did not know Daryl Williams unless they were involved in the process of avoiding service as instructed by managers, officer, or agents of Club Volcano.”

Volcano Enterprises filed a timely appeal of the trial court’s judgment.

II. Standard of Review

“A trial court’s ruling on a Rule 60(b)(4) motion is subject to de novo review. Bank of America Corp. v. Edwards, 881 So.2d 403 (Ala.2003). In Bank of America, supra, our supreme court stated:
“ ‘ “ ‘The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ” ’
881 So.2d at 405, quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991). See also Northbrook Indem. Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000).
“The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void. Cameron v. Tillis, 952 So.2d 352 (Ala.2006); Image Auto, Inc. v. Mike Kelley Enters., Inc., supra. In Bank of America, supra, our supreme court also stated:
“ ‘ “One of the requisites of personal jurisdiction over a defendant is ‘perfected service of process giving notice to the defendant of the suit being brought.’ Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.1983). ‘When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.’ Id. A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).” ’
881 So.2d at 405, quoting Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993).”

Nichols v. Pate, 992 So.2d 734, 736 (Ala.Civ.App.2008).

III. Analysis

A default judgment was entered against Volcano Enterprises based on its failure to answer a complaint. Rule 4.3(c), Ala. R. Civ. P., addresses this situation and provides, in pertinent part, that,

“[wjhen a defendant avoids service and that defendant’s present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefor on the process and returned it to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication.”

The committee comments to Rule 4.3 observe that

“more than mere inability to find the defendant is required because of the use of the term ‘avoidance’ of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication.”

Rule 4.3, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision (emphasis added).

Volcano Enterprises argues that Hadly’s affidavit did not demonstrate the culpability necessary to find avoidance of service rather than a mere failure on his part to find the defendant. We agree.

Although there is no requirement for such in the Alabama Rules of Civil Procedure, it is worth noting that, following the failed attempt to achieve personal service upon Williams at the club, and despite having a mailing address for Williams at which he had clearly received a great deal of mail in this case, Rush did not attempt service by certified mail. She attempted personal service in two ways. First, the sheriff attempted to serve process by physically visiting Williams’s residence, only to find that it had been destroyed by a tornado. The other attempt at personal service was made by sending Hadly, a hired process server, to the club in an effort to locate Williams at that location.

Even giving Hadly’s affidavit a generous reading, he merely attested that he visited the club on three occasions over a two-week period and that, on each visit, he talked to at least one employee of the club who informed him that he or she did not know anyone by the name Daryl Williams. On one of those visits, however, an employee with whom Hadly spoke recommended to Hadly that he return on another occasion when he could speak with one of the managers, a man identified by the employee as Leonard Smith. The affidavit submitted by Hadly does not state that Hadly ever attempted to follow this recommendation.

Ultimately, this is a case in which the trial court inferred that a process server spoke with a club employee on each of three occasions, that those employees did in fact know Daryl Williams, and that, moreover, those employees had been instructed by Daryl Williams to deny that they knew him. There is a substantial question of the sufficiency of the evidence to support the trial court’s inferences. In addition, there is no evidence indicating that, on any of the occasions on which Hadly visited Club Volcano, Williams was in fact present at the club or that, even if the employees knew Williams, any of those individuals had any information regarding Williams’s physical whereabouts that they could have shared with Hadly. Based on the facts before us in this particular case, we cannot conclude that the averments of Hadfys affidavit are sufficient to justify a finding of anything other than that Hadly simply did not find Williams at the club on the three occasions he visited there.

The burden of proving “avoidance of service” in order to justify service by publication is on the plaintiff. See, e.g., Nichols v. Pate, 992 So.2d 734, 737 (Ala.Civ.App.2008). With one exception, Rush does not identify any of the persons with whom the process server spoke; none of them were called as witnesses; and there is no evidence indicating that any of them did in fact know Daryl Williams, despite the fact that he was the owner of the club and was listed as its registered agent. A fortiori, there is no direct evidence that any of these employees had been instructed by Williams to lie on his behalf.

Volcano Enterprises likens this case to Fisher v. Amaraneni, 565 So.2d 84, 87-88 (Ala.1990), in which this Court stated:

“In the official comments to Rule 4.3(c), it is stated that ‘more than mere inability to find the defendant is required because of the use of the term “avoidance” of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publication, substantial constitutional questions may be posed by the obtaining of an in per-sonam judgment by publication.’ In Federal Deposit Ins. Corp. v. Sims, 100 F.R.D. 792, 796 (N.D.Ala.1984), a district court, interpreting Rule 4.3, [Ala.] R. Civ. P., stated the following:
“ ‘It is obvious that the draftsmen required proof of “culpability” or a “hiding out” by a defendant before suggesting that an in personam judgment can be entered on service by publication.’
“In Gross v. Loewen, 522 So.2d 306 (Ala.Civ.App.1988), the court held that a wife’s affidavit stating that ‘the defendant [her husband] is avoiding service, as service attempted by certified mail ivas returned undelivered ’ was an insufficient averment of facts showing that her husband had avoided service of process; therefore, the affidavit did not satisfy the requirement of Rule 4.3(d)(1), and service by publication in that case was improperly allowed by the trial court. Consequently, the trial court’s judgment in that case was void, since the court had not acquired personal jurisdiction over the defendant.
“In this case, the plaintiffs essentially stated in their affidavit that because the process server had failed in six (6) attempts to serve process upon the Fishers at their residence and had returned the process to the circuit clerk’s office endorsed ‘not found’ that such ‘facts’ were sufficient to show avoidance of service on the Fishers’ part and to allow the trial court to authorize service by publication. We disagree.
“A reading of the plaintiffs’ affidavit does indicate that the process server attempted on numerous occasions to serve process on the Fishers at their residence and was unable to serve them because of their absence, an absence that the process server was told was due to the Fishers’ presence in California, but these ‘facts’ are not enough to show that the Fishers avoided service of process.
“We cannot hold, under the facts of this case, that the conclusory statements made in the plaintiffs’ affidavit that the Fishers were avoiding service, coupled with the process server’s failed attempts to perfect service of process upon them and his later endorsement of the returned process as ‘not found,’ are sufficient to satisfy the requirement of Rule 4.3(d)(1), [Ala.] R. Civ. P., so that service by publication was proper.”

(Footnote omitted.) See also, e.g., Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.3d 667, 689 (Ala.2009); Nichols v. Pate, 992 So.2d at 738; and Wagner v. White, 985 So.2d 458, 461-62 (Ala.Civ.App.2007).

Rush seeks to rely upon a 2003 Court of Civil Appeals’ opinion, Snead v. Snead, 874 So.2d 568 (Ala.Civ.App.2003). In that case, a special process server visited the office where a defendant was known to be present and spoke to the defendant’s secretary in an outer office. The secretary informed the process server that the defendant was, in fact, in the building, in what she referred to as “the lab,” but that he “would not come out.” Unlike the evidence in the present case, the evidence in Snead made clear that an employee of the defendant did in fact know the defendant, that the defendant was in fact on the premises at the time of the process server’s visit, and that the defendant refused to “come out,” a scenario that was repeated on three separate occasions. The evidence presented by Rush simply does not rise to the same level as the evidence presented by the plaintiffs in Snead.

In this case, Rush no doubt was frustrated by the inability of her process server to find Williams at the club on the several occasions he visited that establishment. Again, however, the mere inability to find a defendant is not a sufficient ground for service by publication. Without implicating the “substantial constitutional questions” relating to due process referenced in the Committee Comments to Rule 4.2, Ala. R. Civ. P., we cannot license the use of service by publication without the presentation of more evidence of the avoidance of service than was presented by Rush in this case.

IV. Conclusion

Rush had the burden of demonstrating that Williams avoided service, which necessarily involves a level of culpability on the part of the defendant, such as hiding out or actively avoiding service, rather than just an inability to serve the defendant. Hadly’s affidavit did not establish such avoidance of service, and Rush presented no other evidence. Without proper service, the judgment is void. Accordingly, the trial court erred in failing to grant Volcano Enterprises’ Rule 60(b)(4) motion to set aside the default judgment against Volcano Enterprises.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

      . The record indicates that Kendrick eventually was convicted of reckless manslaughter in connection with these events.

      . In the motion, Volcano Enterprises also made arguments for a remittitur and for a new trial.

      . Volcano Enterprises provided other submissions in support of its motion, but those submissions pertained to arguments in its motion that did not address the issue of service of process, which is the only issue before us in this appeal.

      . In a July 2009 application for an ABC license renewal for Club Volcano, Williams certified that he was the "sole owner” of Volcano Enterprises and that Volcano Enterprises had the minimum required liability insurance for such an establishment of $100,000 with "Colony Insurance Co.” Rush demonstrated during the trial on damages that this representation by Williams was false.

      . Our holding today does not depend on a finding of credibility on the part of Williams, or upon any of the information contained in his affidavit. Instead, our holding is based on the facts that the burden of proof for showing avoidance of service fell on Rush and that the limited facts presented to the trial court in Hadly’s affidavit do not rise to a level sufficient to justify such a finding.

      . On a fourth visit, Hadly "could not get in” the club.

      . For that matter, Hadly's affidavit explicitly states that he spoke with an employee of the club on only the first of his visits to the club, November 19, 2011. As to the descriptions of visiting the club on November 27 and December 3, no similar averments are included in Hadly’s affidavit; instead, he simply states that, on those occasions, "no one” stated that they knew Williams. He does not expressly aver that he spoke with any persons who were working at the club on either of those occasions.

      . Hadly does not aver that he asked the unidentified employee for a telephone number or other means by which he might contact Smith or that he inquired as to what day and time he should return to the establishment in an effort to find Smith in person. Nor does Hadly aver that he left his own contact information with the employee to relay to Smith.


source: Caselaw Access Project

author: PARKER, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte William Keith ROBEY. (In re William Keith Robey v. Alabama Department of Corrections).
    1130618.
    Supreme Court of Alabama.
    May 16, 2014.
    William Keith Robey, pro se.
   PARKER, Justice.

WRIT DENIED. NO OPINION.

STUART, SHAW, and WISE, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

Because the rules under which the Alabama Department of Corrections (“ADOC”) operates its work-release program are not inconsistent with the statute that authorizes that program, I concur in denying William Keith Robey’s petition for a writ of certiorari.

In 1997, while he was driving under the influence of alcohol, “Robey’s vehicle swerved across the dividing line of the road and into the lane of oncoming traffic.” Ex parte Robey, 920 So.2d 1069, 1070 (Ala.2004). Robey was convicted of reckless murder and reckless assault for causing the death of his girlfriend and injuring another motorist in the ensuing accident. In 2013 he petitioned the Montgomery Circuit Court for a writ of certiorari to order ADOC to consider him for the work-release program. The circuit court denied the petition; the Court of Criminal Appeals affirmed, by an unpublished memorandum. Robey v. Alabama Dep’t of Corr. (No. CR-12-1967, Feb. 7, 2014), — So.3d —(Ala.Crim.App.2014) (table).

Before the circuit court and on appeal, Robey raises a question of law whether an administrative rule in the ADOC Classification Manual (“the manual”) conflicts with the statute that authorizes the promulgation of such rules. Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

“The provisions of a statute will prevail in any case of a conflict between a statute and an agency regulation.” Ex parte Jones Mfg. Co., 589 So.2d 208, 210 (Ala.1991). Robey argues that an ADOC rule is in conflict with § 14-8-2(a), Ala.Code 1975, which provides as follows:
“The [Department of Corrections] is authorized to adopt regulations and policies permitting the commissioner [of Corrections] to extend the limits of the place of confinement of an inmate, as to whom there is reasonable cause to believe he will know his trust, by authorizing him, under prescribed conditions, to leave the confines of that place unaccompanied by a custodial agent for a prescribed period of time to work at paid employment.... Inmates shall participate in paid employment at the discretion of the [Department of Corrections].”

The ADOC rule at issue bars certain inmates from being considered for work release, which is known as the “minimum-community custody level” of confinement. Among those barred are inmates convicted in “[h]omicide cases, past or present. Inmates convicted of vehicular homicide, manslaughter involving DUI or otherwise, are not barred. However, if the nomenclature of the conviction is ‘murder’, they are ineligible” for the work-release program. § 5.4.6.1 of the manual.

Robey claims that the manual is fatally inconsistent with the statute that authorizes its promulgation. “ ‘A regulation ... which operates to create a rule out of harmony with the statute[ ] is a mere nullity.’ ” State v. Maddox Tractor & Equip. Co., 260 Ala. 136, 141, 69 So.2d 426, 430 (1953) (quoting Manhattan Gen. Equip. Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528 (1936)). As authority for the proposition that the rule in the manual is inconsistent with the statute, Robey cites Hill v. State, 594 So.2d 246 (Ala.Crim.App.1992), which cites, in turn, Hendking v. Smith, 781 F.2d 850 (11th Cir.1986).

Hill held that “the classification scheme adopted by the Alabama prison system to determine the custody status of prisoners ‘is not arbitrary and capricious, but reasonable and appropriate.’” 594 So.2d at 248 (quoting Hendking, 781 F.2d at 852). Hendking found reasonable under the Equal Protection Clause an inmate-classification scheme that permitted murderers to qualify for minimum-community status but that excluded sex offenders. 781 F.2d at 851-52.

Robey argues that the holding in Hendking that a classification permitting murderers to qualify for minimum custody is reasonable is inconsistent with the current rule that murderers may not qualify for minimum-community status. The Hendking court reasoned that prison officials could reasonably find that sex offenders have an antisocial propensity that could express itself at any time in the community, whereas, apart from professional killers, “few people commit more than one murder in a lifetime.” 781 F.2d at 852. Thus, allowing murderers to work in the community while prohibiting sex offenders from doing so was “reasonable and appropriate.” Id.

Hendking did not hold, however, that prison officials are required to allow murderers to be eligible for minimum-community status. Currently in Alabama both murderers and sex offenders are ineligible for the work-release program. ADOC’s grading of work-release classifications by the seriousness of the inmate’s offense is not inherently “arbitrary and capricious.” The inclusion of murderers at one time in minimum-community status and their current exclusion does not violate the Equal Protection Clause; that decision simply falls within the discretion granted to ADOC “to extend the limits of the place of confinement of an inmate.”

Further, Robey does not raise an equal-protection challenge as was raised in Hendking. He argues instead that the rule in the manual is inconsistent with the statute. The rule, however, that excludes prisoners convicted of murder from eligibility for the work-release program falls within the discretion permitted ADOC by the statute, regardless of whether at an earlier time such offenders might have been considered eligible for the work-release program.

Because the work-release classification Robey challenges is not out of harmony or in conflict with § 14-8-2(a), the authorizing statute, I concur in denying his petition for a writ of certiorari.

      . Robey may apply to the ADOC Commissioner for an exception to the classification that prohibits him from participating in the work-release program. The commissioner "has full over-ride authority of any criteria in this manual that is not otherwise directed by law.” Manual, § 2.1.


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte John Henley Hyer. (In re John Henley HYER v. STATE of Alabama).
    1130801.
    Supreme Court of Alabama.
    May 23, 2014.
    John Henley Hyer, pro se.
   STUART, Justice.

WRIT DENIED. NO OPINION.

PARKER, SHAW, and WISE, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

I concur in denying this petition for a writ of certiorari to the Court of Criminal Appeals. In his petition for the writ of certiorari, John Henley Hyer argues, among other things, that the Court of Criminal Appeals erred in refusing to remand his case to the circuit court for an evidentiary hearing to address his claim that the trial court lacked jurisdiction to render a judgment or to impose a sentence because Hyer was deprived of his right to counsel and did not knowingly, intelligently, or voluntarily waive that right when he pleaded guilty to murder in 1975. The Court of Criminal Appeals addressed this issue in its unpublished memorandum affirming the circuit court’s denial of Hyer’s Rule 32, Ala. R.Crim. P., petition:

“Hyer’s claim on appeal that he was deprived of his right to counsel at his arraignment was not first presented in his [Rule 32, Ala. R.Crim. P.,] petition. We acknowledge, however, that ‘[t]he right of a defendant to have counsel present at arraignment is a jurisdictional prerequisite to a conviction,’ Weakley v. State, 721 So.2d 235, 236 (Ala.1998), and that jurisdictional issues can be raised at any time. See Nunn v. Baker, 518 So.2d 711 (Ala.1987). However, we also recognize that:
“A court of general jurisdiction proceeding within the scope of its powers will be presumed to have jurisdiction to give the judgments and decrees it renders until the contrary appears. So, a court of general jurisdiction is presumed to have acted within its powers, and the burden is on the accused affirmatively to show that it had no jurisdiction, unless facts showing want of jurisdiction affirmatively appear on the record.”
“‘22 C.J.S. Criminal Law § 174 (1989). “[A] court conducting a criminal proceeding is presumed to have jurisdiction, whether or not there are recitals in its record to show it.” 22A C.J.S. Criminal Law 702 (1989).’
“Willingham v. State, 796 So.2d 440, 443 (Ala.Crim.App.2001)(emphasis added).
“Hyer did not include this claim in his Rule 32 petition, and nothing in the Rule 32 record indicates that Hyer was not represented by counsel at his arraignment. We will not presume a jurisdictional defect where there is no indication in the record that one exists.
‘This Court will not remand a case to the circuit court to hold an evidentiary hearing on a jurisdictional claim that was not presented in the petitioner’s Rule 32 petition unless facts appear in the record affirmatively showing a lack of jurisdiction.’
“Fincher v. State, 837 So.2d 876, 881 (Ala.Crim.App.2002).”

Hyer v. State (No. CR-12-1711, February 7, 2014), — So.3d — (Ala.Crim.App.2014) (table).

Hyer argues that this holding by the Court of Criminal Appeals conflicts with Ex parte Walker, 800 So.2d 135, 138 (Ala.2000) (“If a Rule 32 petition contains allegations that, if true, would entitle the petitioner to relief, the trial court must hold an evidentiary hearing.”). Walker, however, is inapplicable to this case because Hyer did not plead this jurisdictional claim in his petition; therefore, the Court of Criminal Appeals’ decision does not conflict with Walker. Nevertheless, Hyer may raise this claim in another Rule 32 petition under Rule 32.2(b), Aa. R.Crim.App., if he can show that he “is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence” or that “good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and ... failure to entertain the petition will result in a miscarriage of justice.”


author: BRYAN, Justice. MOORE, Chief Justice

text:
    Ex parte POARCH BAND OF CREEK INDIANS and PCI Gaming Authority d/b/a Creek Casino Montgomery. (In re Adrianne Kelly and Edward Gilbert v. Poarch Band of Creek Indians et al.).
    1121411.
    Supreme Court of Alabama.
    May 23, 2014.
    Charles A. Dauphin of Dauphin Paris LLC, Vestavia Hills, for petitioners.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for respondents.
   BRYAN, Justice.

PETITION DENIED; NO OPINION.

BOLIN, MURDOCK, and MAIN, JJ., concur.

MOORE, C.J., concurs specially.

MOORE, Chief Justice

(concurring specially).

Because the Poarch Band of Creek Indians and PCI Gaming Authority d/b/a Creek Casino Montgomery (hereinafter referred to collectively as “PBCI”) do not have a clear legal right to sovereign immunity in an Alabama state court from a dram-shop action, I concur in denying their petition for a writ of mandamus. I write separately to examine the law on this question of first impression.

I.Facts and Procedural History

On August 8, 2011, shortly after leaving Creek Casino Montgomery, a casino operated on land owned by the Poarch Band of Creek Indians, Elfago Ramirez crossed the centerline on Wares Ferry Road and collided head-on with a vehicle traveling in the opposite lane. The collision caused injuries to Adrianne Kelly and Edward Gilbert (“the plaintiffs”), the occupants of the other vehicle. On March 21, 2013, in the Montgomery Circuit Court, the plaintiffs sued PBCI and other defendants alleging that PBCI furnished alcoholic beverages to Ramirez knowing that he was visibly intoxicated.

Citing tribal immunity, PBCI moved to dismiss the action. The trial court denied the motion, finding that PBCI’s agreement to maintain dram-shop insurance as a condition of receiving a liquor license for Creek Casino Montgomery constituted an express waiver of any immunity from suit based on a violation of Alabama’s Dram Shop Act. § 6-5-71, Ala.Code 1975. PBCI then petitioned for a writ of mandamus on the ground of immunity.

II.Standard of Review

“[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity.” Ex parte Butts, 775 So.2d 173, 176 (Ala.2000). “Mandamus is a drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (1993).

III.Analysis

A. ' Tribal Sovereign Immunity

“Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). Thus, “an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Kiowa Tribe of Okla. v. Manufacturing Techs., Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). Because the plaintiffs do not contend that dram-shop actions by private parties against Indian tribes have been authorized by Congress, the only issue before the Court is whether PBCI has waived its immunity from such actions.

“It is settled that a waiver of sovereign immunity ‘ “cannot be implied but must be unequivocally expressed.” ’ ” Santa Clara Pueblo, 436 U.S. at 58 (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), quoting in turn United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)). Such a waiver must be “clear.” Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991). “Absent an effective waiver or consent, it is settled that a state court may not exercise jurisdiction over a recognized Indian tribe.” Puyallup Tribe, Inc. v. Department of Game of Wash., 433 U.S. 165, 172, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977).

B. Dram Shop Act and Sovereign Immu- . nity

A person injured by someone who is intoxicated may sue for damages anyone who caused the intoxication of the party causing the injury by furnishing “liquor or beverages” contrary to law. § 6-5-71, Ala. Code 1975. Regulations of the Alabama Alcoholic Beverage Control Board (“the ABC Board”) “have the full force and effect of law.” § 28-3-49(a), Ala.Code 1975. “No ABC Board on-premises licensee, employee or agent thereof shall serve any person alcoholic beverages if such person appears, considering the totality of the circumstances, to be intoxicated.” Reg. 20-X-6-.02(4),. Ala. Admin. Code (ABC Board).

Although the complaint states a cause of action against PBCI under the Dram Shop Act and certain ABC Board regulations, PBCI argues that the defense of sovereign immunity based on its tribal status requires dismissal of this action. Although the United States Supreme Court has questioned “the wisdom of perpetuating the doctrine” of tribal immunity, Kiowa Tribe, 523 U.S. at 758, the plaintiffs do not attack immunity per se. They argue, instead, that PBCI waived its immunity by subjecting itself to licensing by the ABC Board. They point in particular to the financial-responsibility provision in the ABC Board regulations that is reprinted in substantial part in the pre-application packet for an ABC Board license:

“(1) All retail licensees of the ABC Board shall maintain, at all times, liquor liability (dram shop) insurance described below and shall comply with the following conditions of requirements of Financial Responsibility.
“(a) Prior to the issuance or renewal of any retail alcoholic beverage license, each applicant must provide the ABC Board with sufficient information that it has liquor liability (dram shop) insurance coverage in the amount of at least one hundred thousand dollars ($100,-000.00) per occurrence, exclusive of, and separate from, any attorney fees or other costs incurred in the defense of any claim asserted against the insured.”

Reg. 20-X-5-.14, Ala. Admin. Code (ABC Board) (“Requirements Of Financial Responsibility By Licensees”) (emphasis added). See PBCI’s brief, Exhibit 1. The first question on the formal application for a retail liquor license asks in oversize letters: “Has applicant complied with ABC Regulation # 20-X-5-.14 regarding financial responsibility?” PBCI circled “Y” on its application. Plaintiffs’ brief, Exhibit 5.

The plaintiffs question how PBCI can be required to maintain dram-shop insurance for “the defense of any claim asserted against the insured” and yet claim immunity in a civil action that implicates the protection provided by that insurance. The plaintiffs contend that allowing tribal immunity to shield PBCI from a dram-shop action would nullify the insurance provision of the state liquor law that PBCI agreed to observe as a condition for licensing. In short, the plaintiffs argue that PBCI’s acceptance of the financial-responsibility provision as a condition for obtaining an alcoholic-beverage license operates as an express waiver of the defense of sovereign immunity in a dram-shop action.

C. The No-Forum Conundrum

Although PBCI stated in its motion to dismiss that the “[plaintiffs’ remedy, if any, lies in the tribal court established by the Defendant sovereign, [the Poarch Band of Creek Indians],” the Poarch Band Tribal Code indicates that a dram-shop action against PBCI in the tribal court would be ineffectual. Section ll-l-l(a), Poarch Band Tribal Code, empowers the Poarch Band Tribal Court to try “all civil causes of action and defenses thereto which are cognizable in the trial courts of the State of Alabama.” However, the immediately following section states: “The recognition of causes of action and defenses thereto which are cognizable in the trial courts of the State of Alabama is not and shall not be deemed a waiver of tribal sovereignty or jurisdiction with respect to the Tribe or Tribal Courts.” Section 11-l-l(b), Poarch Band Tribal Code. Thus, although the plaintiffs could formally file a dram-shop action in Poarch Band tribal court, PBCI would instantly have recourse to the defense of sovereign immunity. The Poarch Band Tort Claims Act, § 29-1-1 et seq., Poarch Band Tribal Code, does provide for a limited waiver of sovereign immunity, but it applies only to “an individual Gaming Facility patron,” § 29-1-3(e), Poarch Band Tribal Code, and excludes third-party claims such as the injuries suffered by plaintiffs on a state highway. § 29 — 2—3(f), Poarch Band Tribal Code. Thus, if the plaintiffs have no remedy against PBCI in a state court, they likely have no remedy against PBCI anywhere.

Courts in many jurisdictions have remarked on the unsettling fact that recognition of tribal immunity can leave accident victims without a remedy against tribal defendants. “[I]mmunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.” Kiowa Tribe, 523 U.S. at 758. See also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng’g, P.C., 476 U.S. 877, 893, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986) (noting “[t]he perceived inequity of permitting the Tribe to recover from a non-Indian for civil wrongs in instances where a non-Indian allegedly may not recover against the Tribe”); Cook v. Avi Casino Enters., Inc., 548 F.3d 718, 727 (9th Cir.2008) (lamenting that “an unjust result is reached that our law might better preclude”) (Gould, J., concurring); Filer v. Tohono O’Odham Nation Gaming, 212 Ariz. 167, 173, 129 P.3d 78, 84 (Ct.App.2006) (noting that tribal immunity from dram-shop actions “may be unsatisfactory to some and arguably is divorced from the realities of the modern world”); Foxworthy v. Puyallup Tribe of Indians Ass’n, 141 Wash.App. 221, 234, 169 P.3d 53, 59 (2007) (noting that “the current state of dram shop case law” involving tribal defendants may “tolerate inequities”).

D. Effect of Purchase of Insurance on Immunity

The mere acquisition of insurance by an entity having sovereign immunity does not constitute an express consent to be sued in a state court for policy benefits. The Poarch Band Tribal Code, for example, delineates a workers’ compensation plan of coverage for Poarch Band employees but allows enforcement only in tribal courts. §§ 35-4-1 & -4, Poarch Band Tribal Code. An employee “seeking any remedy in any Non-Tribal forum” forfeits coverage. § 35-1-6(d), Poarch Band Tribal Code. The workers’ compensation title of the Poarch Band Tribal Code states that the Poarch Band “does not hereby waive its immunity from suit in state or federal court, or any other state or federal forum, for any purpose.” § 35 — 1—6(b), Poarch Band Tribal Code. See Sanderford v. Creek Casino Montgomery (No. 2:12-CV-455-WKW, Jan. 10, 2013) (M.D.Ala.2013) (dismissing on sovereign-immunity grounds action brought in federal court by Creek Casino Montgomery employee for workers’ compensation benefits). See also White Mountain Apache Tribe v. Industrial Comm’n of Ariz., 144 Ariz. 129, 696 P.2d 223 (Ct.App.1985) (holding that a tribe’s purchase of workers’ compensation insurance does not constitute an express waiver of sovereign immunity from a worker’s compensation action).

Similarly, the purchase of liability insurance by an agency of the Alabama state government does not of itself waive state immunity. “ ‘[A] governmental unit’s immunity from tort liability is unaffected by its procurement of insurance which purports to protect it from such liability.’ ” Thompson v. Druid City Hosp. Bd., 279 Ala. 314, 315, 184 So.2d 825, 826 (1966) (quoting 68 A.L.R.2d 1437 (1959)). See also Alabama State Docks v. Saxon, 631 So.2d 943, 946 (1994) (noting that “an intent to waive governmental immunity should not be presumed from the purchase of liability insurance”); Graves v. White Mountain Apache Tribe, 117 Ariz. 32, 570 P.2d 803 (Ct.App.1977) (holding that purchase of liability insurance by an Apache tribe did not waive the tribe’s governmental immunity).

E. Countervailing Factors

Courts that have addressed the issue uniformly hold that sovereign immunity protects Indian tribes from private dram-shop actions. See Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224, 1233 (11th Cir.2012); Filer, 212 Ariz. at 173, 129 P.3d at 84; Foxworthy, 141 Wash. App. at 234, 169 P.3d at 58; Holguin v. Ysleta Del Sur Pueblo, 954 S.W.2d 843, 854 (Tex.App.1997). Recently Oklahoma reversed its contrary precedent. See Sheffer v. Buffalo Run Casino, PTE, Inc., 315 P.3d 359, 372 (Okla.2013) (rev’g Bittle v. Bahe, 192 P.3d 810 (Okla.2008)). Nevertheless, certain countervailing factors argue for denying PBCI’s petition for a writ of mandamus.

1. Immunity is Minimal in the Area of Alcohol Regulation

Although “[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history,” Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 89 L.Ed. 1367 (1945), and “tribal immunity is a matter of federal law and is not subject to diminution by the States,” Kiowa Tribe, 523 U.S. at 756, tribal immunity is at its weakest in the context of alcohol regulation. Although at one time federal law prohibited the possession or sale of alcoholic beverages in Indian territory, Congress in 1953 abrogated those provisions and instead gave the states authority to regulate and control the use of alcohol on tribal lands. 18 U.S.C. § 1161. Construing § 1161, the United States Supreme Court noted that “Congress has divested the Indians of any inherent power to regulate in this area.” Rice v. Rehner, 463 U.S. 713, 724, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983). “With respect to the regulation of liquor transactions, ... Indians cannot be said to ‘possess the usual accoutrements of tribal self-government.’ ” Id. (quoting McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 167-68, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)).

“Because we find that there is no tradition of sovereign immunity that favors the Indians in this respect, and béeause we must consider that the activity in which Rehner seeks to engage potentially has a substantial impact beyond the reservation, we may accord little if any weight to any asserted interest in tribal sovereignty in this case.”

Rehner, 463 U.S. at 725. Because tribal immunity derives from tribal sovereignty, PBCI’s assertion of immunity to thwart state law in the area of alcohol regulation has “little if any weight,” especially when the activity whose regulation PBCI seeks to evade — overserving gaming customers — “has a substantial impact beyond the reservation.” 463 U.S. at 725.

2. The Covenant of Financial Responsibility

Even if, as other courts have held, the state’s power to regulate alcohol usage on tribal lands does not of itself authorize private dram-shop actions, the nature of the agreement PBCI made with the ABC Board constitutes a waiver of any residual immunity from such lawsuits. By purchasing dram-shop insurance as a condition for obtaining a liquor license, PBCI expressly agreed in writing to be “financially responsible” in damages for serving alcohol to any apparently intoxicated person. PBCI cannot both assume financial responsibility for compensating victims of its own wrongdoing and at the same time disclaim its responsibility for providing such compensation. An agreement to be financially responsible is an express declaration that excludes, i.e., waives, the alternative of being financially irresponsible. Otherwise, the assumption of financial responsibility would be meaningless. Compare C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 422, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001) (noting that an arbitration clause in a contract “ ‘would be meaningless if it did not constitute a waiver of whatever immunity [the Tribe] possessed’”) (quoting Native Village of Eyak v. GC Contractors, 658 P.2d 756, 760 (Alaska 1983)).

No “magic words” are needed to waive sovereign immunity. A waiver that has “the requisite clarity,” C & L Enterprises, 532 U.S. at 418, need not, “to be deemed explicit ... use the words ‘sovereign immunity.’” Id. at 420-21 (quoting Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., 86 F.3d 656, 660 (7th Cir.1996)). See also Rosebud Sioux v. Val-U Constr. Co. of S. Dakota, 50 F.3d 560, 563 (8th Cir.1995) (“[WJhile the Supreme Court has expressed its protectiveness of tribal sovereign immunity by requiring that any waiver be explicit, it has never required the invocation of ‘magic words’ stating that the tribe hereby waives its sovereign immunity.”); Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 25 (1st Cir.2006) (citing C & L Enterprises for the proposition that a court need not employ “talismanic phrases”).

In rejecting the assertion that a tribe may employ the doctrine of sovereign immunity to nullify an arbitration clause under Oklahoma law, the United States Supreme Court stated that “[the contract’s dispute resolution] regime has a real world objective; it is not designed for a game lacking practical consequences.” C & L Enterprises, 532 U.S. at 422. Likewise, in this case the financial-responsibility covenant PBCI made with the ABC Board as a condition for obtaining a liquor license had “a real world objective”: the protection of the general public from drunk drivers improvidently overserved in the casino. This agreement “was not designed for a game lacking practical consequences,” as PBCI implausibly contends.

Just as “[t]o agree to be sued is to waive any immunity one might have from being sued,” Sokaogon, 86 F.3d at 659, so to agree to be financially responsible is to waive any immunity one might have to be financially irresponsible. To claim immunity in this context is to assert in “the real world” that PBCI has no coverage for dram-shop incidents. See Koscielak v. Stockbridge-Munsee Cmty., 340 Wis.2d 409, 422, 811 N.W.2d 451, 458 (Ct.App.2012) (“[A]n insurer is not liable unless its insured is.”). But such an assertion functions as a repudiation of the legal requirement — to which PBCI has assented — that “cmrent insurance coverage exists” that has not “been cancelled or otherwise is not in force for any reason.” Reg. 20-X-5-.14(2), Ala. Admin. Code (ABC Board). Again, the requirement of dram-shop coverage is not a mere paper formality with no effect in the real world, a meaningless arrangement “lacking practical consequences.” “It is ludicrous to contend that anyone can enter into an indemnifying contract and then refuse to fulfill the contract against the injured party, contending in substance that there is no basis for the suit for' there was no risk to be insured.” Beach v. City of Springfield, 32 Ill.App.2d 256, 261, 177 N.E.2d 436, 439 (1961).

3. The No-Forum Conundrum Revisited

The absence of a tribal forum to hear dram-shop actions weighs against a finding of immunity. In refusing to infer a private cause of action for enforcement of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1304, the United States Supreme Court reasoned that such a remedy was not necessary because “[tjribal forums are available to vindicate rights.” Santa Clara Pueblo, 436 U.S. at 65. The Court forthrightly asserted: “Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.” Id. Because the Poarch Band has structured its Tribal Code to prevent dram-shop claims from being heard in the tribal court, its claim of immunity from a state-court action is accordingly diminished. See Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir.1980) (reversing a trial court’s order that dismissed a case on immunity grounds because no tribal or other forum existed to settle the dispute).

TV. Conclusion

The doctrine of tribal immunity, intended in part to shield Indian tribes from exploitation by outsiders, is not also a sword tribes may wield to victimize outsiders. Pushing the doctrine to illogical extremes and employing it after the fact to repudiate freely assumed legal obligations must ultimately result in discrediting the doctrine itself. “Indian scholars ... have been warning tribal leaders and counsel for decades that if they do not solve the no-forum conundrum, someone else will— either Congress or the federal courts.” Matthew L.M. Fletcher, (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 Yale L.J. Online 311, 314 (2013).

Because PBCI’s formal covenant to assume financial responsibility in dram-shop actions constitutes an explicit waiver of its sovereign immunity from liability for such actions, I concur in denying PBCI’s petition for a writ of mandamus ordering the trial court to dismiss this action on the ground of tribal immunity.

      . PCI Gaming Authority, wholly owned by the Poarch Band and chartered under its tribal laws, shares the tribe’s immunity. Freeman-ville Water Sys. Inc. v. Poarch Band of Creek Indians, 563 F.3d 1205, 1207 n. 1 (11th Cir.2009).

      . See Matthew L.M. Fletcher, (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 Yale L.J. Online 311 (2013).

      . Oklahoma statutes allow for the enforcement of predispute arbitration agreements. See Okla. Stat. 12, § 1851 et seq.


author: PARKER, Justice.

text:
    BRYANT BANK v. TALMAGE KIRKLAND & COMPANY, INC., d/b/a Kirkland & Company, et al.
    1130080.
    Supreme Court of Alabama.
    May 23, 2014.

      P. Bradley Murray of The Murray Firm, L.L.C., Daphne, for appellant.
    Michael C. Niemeyer and Jennifer S. Morgan of Hand Arendall LLC, Fairhope, for appellees.
   PARKER, Justice.

Bryant Bank appeals from a partial summary judgment in favor of Talmage Kirkland & Company, Inc., d/b/a Kirkland & Company (“TKC”), and Quentin Ball and Jason Stoutamire, appraisers for TKC (hereinafter collectively referred to as “the defendants”), by the Baldwin Circuit Court. We reverse the circuit court’s judgment and remand the case for further proceedings.

Facts and Procedural History

This case arises out of an appraisal of real property (“the property”) conducted by TKC for Bryant Bank in the course of Bryant Bank’s consideration of a loan application submitted by Wallace Seafood Traders, Inc. (‘WST”), in September 2007 for the purchase of the property, which WST was renting and out of which it was operating its business. At the time of WST’s application, Bryant Bank was in possession of an appraisal of the property, which included a seafood-storage facility, that had been prepared for another bank by Weldon Payne in July 2007. Payne’s appraisal report indicated that, in his opinion, the property had a market value of $2,400,000. Payne’s appraisal report included a quote from J.P. Refrigeration, which indicated that the “as new” cost of the scheduled equipment in the seafood-storage facility was $1,950,000. Payne’s appraisal report indicates that the depreciated value of the equipment at the time of the appraisal was $1,250,000.

In the course of considering WST’s loan application, Bryant Bank contacted TKC and requested an additional appraisal of the property. On November 26, 2007, Ball, a real-estate appraiser for TKC, signed an engagement letter agreeing to provide Bryant Bank “an appraisal report estimating the Market Value of the ... property as defined by the Uniform Standards of Professional Appraisal Practice (USPAP).” The engagement letter further stated: “It is fully understood and agreed upon that this appraisal is being engaged by and prepared solely for Bryant Bank, the client of this report. The appraisal report is intended for use as an aid in property underwriting, loan classification and/or disposition of the asset.”

On December 10, 2007, TKC provided Bryant Bank with an appraisal report indicating that the property had a market value of $1,700,000. TKC’s appraisal report contained a certification, signed by Ball and Stoutamire, another real-estate appraiser for TKC, that the “analyses, opinions, and conclusions were developed, and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP) of The Appraisal Foundation. The individual appraisers are in compliance with the Competency Provision of USPAP.”

The Bryant Bank employees responsible for approving WST’s loan application suspected that the value of the property might have been overstated in TKC’s appraisal. However, Bryant Bank approved WST’s loan application and issued the loan to WST on or about December 18, 2007, because, even if Bryant Bank “deeply discounted” the value of the property based the uniqueness of the property, the property would still serve as sufficient collateral to cover the loan.

On or about October 28, 2008, WST defaulted on the loan. Subsequently, Bryant Bank obtained another appraisal of the property from a different appraisal firm; this new appraisal indicated that the property had a value of $205,000. On July 3, 2010, Bryant Bank sued the defendants, alleging breach of contract and negligent misrepresentation arising from its reliance on TKC’s appraisal report in issuing the loan to WST.

On October 19, 2012, the defendants filed a motion for a partial summary judgment. In their partial-summary-judgment motion, the defendants argued that Ball and Stoutamire were entitled to a summary judgment as to the breach-of-contract claim because they were acting as agents of a disclosed principal — Bryant Bank. As to the negligent-misrepresentation claim, the defendants argued that they were entitled to a summary judgment in their favor because, they argued, 1) the opinion of value expressed in TKC’s appraisal report could not serve as the basis of a negligent-misrepresentation claim, 2) Bryant Bank had not relied upon the opinion of value contained in TKC’s appraisal report, and 3) the claim was barred by the statute of limitations. The defendants also argued that Bryant Bank’s negligent-misrepresentation claim would be “more appropriately characterized as a claim [of] promissory fraud” and, therefore, that they were entitled to a summary judgment in their favor because Bryant Bank never alleged that the defendants intended to deceive Bryant Bank when they agreed to conduct the appraisal of the property in conformity with the Uniform Standards of Professional Appraisal Practice and then produced an appraisal that allegedly failed to conform to those standards.

On February 15, 2013, Bryant Bank filed a response to the defendants’ partial-summary-judgment motion. Bryant Bank argued that an appraisal of real estate can serve as the basis of a negligent-misrepresentation claim. In support of this argument, Bryant Bank quoted Zanaty Realty, Inc. v. Williams, 935 So.2d 1163, 1167 (Ala.2005):

“In Fisher v. Comer Plantation, Inc., 772 So.2d 455, 462 (Ala.2000), this Court held that ‘real-estate appraisers are subject to liability for negligent or wanton misrepresentation.’ However, the appraiser’s liability for negligence is limited to those parties to whom the real-estate appraiser owes a duty — that is, ‘ “specifically foreseen and limited groups of third parties for whose benefit and guidance the [appraiser] supplied the [appraisal] and who used it as the [appraiser] intended it to be used.” ’ Fisher, 772 So.2d at 462 (quoting Boykin v. Arthur Andersen & Co., 639 So.2d 504, 510 (Ala.1994)).”'

Bryant Bank argued that under Fisher v. Comer Plantation, Inc., 772 So.2d 455 (Ala.2000), and Zanaty Realty, TKC’s appraisal could serve as the basis of its negligent-misrepresentation claim because TKC conducted the appraisal for Bryant Bank and, therefore, owed a duty to Bryant Bank.

Bryant Bank also argued that it relied to its detriment on the appraisal when it issued the loan to WST, using the property as collateral. In support of this assertion, Bryant Bank attached the following portion of the deposition testimony of Peter Petroutson, a Bryant Bank representative:

“[Counsel for Bryant Bank:] There’s been some discussion along the way about loan-to-value and how that appraisal amount would have a bearing on the decision to make the loan. If the [TKC] appraisal had come in at a million dollars, would Bryant Bank have loaned the money? ■
“[Petroutson:] No.
“[Counsel for Bryant Bank:] So, in that regard, the appraisal has a role in the decision to approve a loan application; is that right?
“[Petroutson:] Of course.”

Bryant Bank also argued that the statute of limitations began to run when WST defaulted on the loan and caused Bryant Bank to incur a legal injury. In support of this argument, Bryant Bank quoted Chandiwala v. Pate Construction Co., 889 So.2d 540, 543 (Ala.2004): “A cause of action accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of the damage is apparent at the time of the first legal injury.” Bryant Bank also argued that whether Ball and Stoutamire were liable for breach of contract is a question of fact within the purview of a jury.

On June 10, 2013, the circuit court granted the defendants’ partial-summary-judgment motion. On September 17, 2013, the circuit court certified the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Bryant Bank appealed.

Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. ThoroughClean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

Bryant Bank does not appeal the circuit court’s summary judgment in favor of Ball and Stoutamire on its breach-of-contract claim. Rather, Bryant Bank’s arguments on appeal relate solely to the summary judgment in favor of the defendants on Bryant Bank’s negligent-misrepresentation claim. The circuit court’s partial-summary-judgment order is not included in the record; accordingly, we do not know if the circuit court provided a specific basis for granting the motion.

Initially, we note that the defendants were not entitled to a summary judgment on Bryant Bank’s negligent-misrepresentation claim based on the statute of limitations. A negligent misrepresentation constitutes legal fraud. See § 6-5-101, Ala. Code 1975 (“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”). Therefore, negligent-misrepresentation claims are subject to a two-year statute of limitations, which begins running when the plaintiff discovers, or should have discovered, the fact constituting the fraud. See § 6-2-38(l) (“All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.”); § 6-2-3, Ala.Code 1975 (“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”). In Auto-Owners Insurance Co. v. Abston, 822 So.2d 1187, 1194-95 (Ala.2001), this Court set forth the standard for evaluating when a fraud claim accrues and, therefore, when the statutory limitations period commences:

“In Foremost [ Insurance Co. v. Parham, 693 So.2d 409 (Ala.1997) ], we reinstated important, historical principles regarding the law of fraud in Alabama, including the proper standard for evaluating when the statutory limitations period commences:
“ ‘Claims of fraudulent misrepresentation and suppression are subject to a two-year statute of limitations. Ala. Code 1975, § 6-2-38(l). Prior to Hickox v. Stover, 551 So.2d 259 (Ala.1989), and Hicks v. Globe Life & Accident Ins. Co., 584 So.2d 458 (Ala.1991), this Court had held that a fraud claim accrued, thus commencing the running of the statutory limitations period, when the plaintiff discovered the fraud or when the plaintiff should have discovered the fraud in the exercise of reasonable care. Parsons Steel, Inc. v. Beasley, 522 So.2d 253 (Ala.1988); Moulder v. Chambers, 390 So.2d 1044 (Ala.1980); Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d 485 (Ala.1977).... -
“ ‘However, in Hicks, a plurality of this Court rejected the long-standing rule that our objective standard of reviewing the statute of limitations issue in fraud cases incorporated the duty to read a document upon its receipt or presentation; and it held that “[t]he question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases where the plaintiff actually'knew of facts that would have put a reasonable person on notice of fraud.” 584 So.2d at 463. (Emphasis in Hicks.) Hicks was a natural and predictable extension of Hickox, which had been decided less than two years before. In Hickox, this Court, by a vote of five to three, adopted what has become known as the “justifiable reliance standard.” ...
“ ‘There has been a tension among the Justices on this Court ever since the 140-year-old standard for determining the reliance issue in fraud' cases was changed in Hickox ....
“ ‘After careful consideration, we conclude that the “justifiable reliance” standard adopted in Hickox, which eliminated the general duty on the part of a person to read the documents received in connection with a particular transaction (consumer or commercial), should be replaced with the “reasonable reliance” standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983)....
“‘For the foregoing reasons, we overrule Hickox, to the extent that it changed the law of fraud as it had existed prior thereto. Furthermore, we overrule Hicks, to the extent that it changed the standard that had previously existed for determining the statute of limitations issue in fraud cases. Because this return to the reasonable reliance standard represents a fundamental change in the law of fraud, we think it appropriate to make the new standard applicable in all fraud cases filed after the date of this decision, i.e., all cases filed after March 14,1997.’
“Foremost, 693 So.2d at 417-21.
“The changes in the law of fraud brought about by our decision in Foremost are not mere word games; rather, Foremost signifies a real, substantive difference in the standards to be applied to fraud cases filed after March 14,1997. For such cases ... § 6-2-3 does not ‘save’ a plaintiffs fraud claim so that the statutory limitations period does not begin to run until that plaintiff has some sort of actual knowledge of fraud. Instead, under Foremost, the limitations period begins to run when the plaintiff was privy to facts which would ‘provoke inquiry in the mind of a [person] of reasonable prudence, and which, if followed up, would have led to the discovery of the fraud. Willcutt v. Union Oil Co., 432 So.2d 1217, 1219 (Ala.1983) (quoting Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 397, 281 So.2d 636 (1973)); see also Jefferson County Truck Growers Ass’n v. Tanner, 341 So.2d 485, 488 (Ala.1977) (‘Fraud is deemed to have been discovered when it ought to have been discovered. It is sufficient to begin the running of the statute of limitations that facts were known which would put a reasonable mind on notice that facts to support a claim of fraud might be discovered upon inquiry.’).”

(Final emphasis added.)

The question of when a person of reasonable prudence would have discovered the alleged fraud is generally a question of fact within the purview of a jury. As this Court stated in Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645, 650 (Ala.2001):

“ ‘When a claim accrues, for statute-of-limitations purposes, is a question of law if the facts are undisputed and the evidence warrants but one conclusion. However, when a disputed issue of fact is raised, the determination of the date of accrual of a cause of action for statute-of-limitations purposes is a question of fact to be submitted to and decided by a jury.’
“Kindred v. Burlington Northern R.R., 742 So.2d 155, 157 (Ala.1999) (citations omitted).
“ ‘A fraud action is subject to a two-year statute of limitations. Ala.Code 1975, § 6-2-38. However, the fraud claim accrues only when the plaintiff discovers the fraud or when the plaintiff, acting as a reasonable person, should have discovered the fraud. Ala.Code 1975, §6-2-3.... “The question of when a plaintiff should have discovered fraud should be taken away from the jury and decided as a matter of law only in cases in which the plaintiff actually knew of facts that would have put a reasonable person on notice of fraud.” Hicks v. Globe Life & Accident Insurance Co., 584 So.2d 458, 463 (Ala.1991)(empha-sis in original).’
“Liberty Nat’l Life Ins. Co. v. McAllister, 675 So.2d 1292, 1297 (Ala.1995)(some citations omitted).”

In Jim Walter Homes, the plaintiff sued a builder alleging fraud on the part of the builder in failing to build a “quality home” — the kind of house the plaintiff alleges the builder promised would be his if he purchased a house from the builder. The plaintiff testified at trial that he knew for more than two years before commencing the lawsuit that the house he was sold was not a “quality home.” The jury returned a verdict in favor of the plaintiff; the defendant appealed. On appeal, this Court concluded that the plaintiffs fraud claim was barred by the statute of limitations as a matter of law because the plaintiff had actual knowledge that his house was not a “quality home” more than two years before he filed his action.

In the present case, Bryant Bank alleges TKC negligently misrepresented the value of the property in its appraisal report. Bryant Bank argues that its negligent-misrepresentation claim accrued when it incurred damage as a result of WST’s default on the loan. Bryant Bank alleges that it was not until WST’s default that it began to investigate its mitigation options and became aware of the facts that led Bryant Bank to believe that TKC had negligently conducted the appraisal. The defendants argue that Bryant Bank’s negligent-misrepresentation claim accrued when it approved WST’s loan application in December 2007 and thereby relied on TKC’s appraisal to its detriment. Additionally, the defendants argue that, under the discovery rule set forth in § 6-2-3, a reasonable person would have investigated and discovered the alleged misrepresentation when Bryant Bank suspected TKC’s appraisal overstated the value of the property before issuing the loan to WST in December 2007 or, alternatively, in April 2008 when Bryant Bank reconsidered the value of the property in the process of deciding whether to extend WST’s line of credit.

No evidence was presented indicating that Bryant Bank had actual knowledge— for more than two years before commencing this action — that the appraisal was conducted in a negligent manner. Accordingly, Bryant Bank’s negligent-misrepresentation claim accrued when a reasonable person would have discovered the fraud — a question within the purview of the jury. Because a genuine issue of material fact exists as to when Bryant Bank discovered facts that would have caused a reasonable person to inquire and led to the discovery of the fraud giving rise to Bryant Bank’s negligent-misrepresentation claim, the defendants were not entitled to a summary judgment on the basis that the statute of limitations had run on its negligent-misrepresentation claim. Accordingly, we turn our analysis to the merits of Bryant Bank’s negligent-misrepresentation claim.

The elements of a misrepresentation claim are 1) a misrepresentation of material fact, 2) made willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was justifiably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence. See Foremost Ins. Co. v. Parham, 693 So.2d 409, 422 (Ala.1997)(citing § 6-5-101, Ala.Code 1975, and Harrington v. Johnson-Rast & Hays Co., 577 So.2d 437 (Ala.1991)). As set forth above, the defendants argued in their partial-summary-judgment motion that Bryant Bank did not satisfy the first and third elements of its negligent-misrepresentation claim; Bryant Bank argues on appeal that it presented substantial evidence of both of those elements.

First, Bryant Bank argues that under Fisher v. Comer Plantation, Inc., supra, a real-estate appraisal can serve as the basis of a negligent-misrepresentation claim. In Fisher, this Court held that a real-estate appraiser could be held liable for a negligently conducted appraisal under Restatement (Second) of Torts § 552 (1977), which it quoted, in pertinent part, as follows:

“ ‘(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by them justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
‘“(2) Except as stated in Subsection (3),[] the liability stated in Subsection (1) is limited to loss suffered
“ ‘(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
“ ‘(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.” ’

772 So.2d at 461. In Fisher, this Court held that its adoption of Restatement (Second) of Torts § 552 extended liability to a real-estate appraiser for a negligently conducted appraisal, as follows:

“The rule of § 552 may be applied to anyone who in the course of his ‘business, profession or employment’ engages in an activity that meets the requirements set forth in Subsection (1). Comment c to § 552 states that this rule ‘subjects to liability only such persons as make it a part of their business or profession to supply information for the guidance of others in their business transactions.’ Section 552 would clearly, by its terms, govern real-estate appraisers, who, as an integral part of their business, facilitate real-estate transactions by issuing opinions regarding the value of real property.

772 So.2d at 462 (emphasis added).

The defendants argue that the value of the property contained in the appraisal is a statement of opinion — not a statement of fact — and, therefore, that it cannot serve as the basis of a negligent-misrepresentation claim. In support of their argument, the defendants cite Brushwitz v. Ezell, 757 So.2d 423, 432 (Ala.2000), which states the following in analyzing a suppression claim: “As with the misrepresentation claim, there arises with the suppression claim a question whether the statements in the appraisal were material, given that appraisals are considered statements of opinion, rather than statements of fact. Kaye v. Pawnee Constr. Co., 680 F.2d 1360, 1368 (11th Cir.1982).” (Emphasis added.) However, Kaye v. Pawnee Construction Co., 680 F.2d 1360 (11th Cir.1982), the case relied upon in Brushwitz, sets forth the following exception to the general rule stated in Brushwitz under which an opinion of value in an appraisal can serve as the basis of a misrepresentation claim:

“Alabama courts consider a statement of value to be an opinion and not a fact. See, e.g., Stevens v. Alabama State Land Co., 121 Ala. 450, 25 So. 995 (1899) (land); Lake v. Security Loan Association, 72 Ala. 207 (1882) (stock). Whether a given representation is an opinion or a fact ‘depends upon all the circumstances of the particular case, such as the form and subject matter of the representation and the knowledge, intelligence and relation of the respective parties.’ Fidelity & Casualty Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 358, 13 So.2d 669, 672 (1943). When parties deal at arm’s length and the recipient of a statement is not fraudulently induced to forbear inqui-ríes that a competent person would make for his own protection, ‘expressions of opinion as to matters which lie in opinion merely — opinions as to current market values furnishing the most common example — ’ will not be grounds for a misrepresentation claim because the recipient, knowing the nature of such expressions, has no right to rely on them. Id. Even an opinion on value is actionable, however, if the recipient states his ignorance and invites the opinion, and the speaker understands the recipient relies on the speaker’s opinion as a fact so that the onus of a confidential relation results: if the recipient forbears independent inquiry because of an opinion elicited under these circumstances of confidence, Alabama courts will treat the statement as a fact reasonably relied upon. Id.”

680 F.2d at 1368 (emphasis added; footnote omitted). The exception stated in Kaye is consistent with a reading of Fisher that would make actionable a negligently conducted appraisal of value when the remaining elements of the claim are met. Such an interpretation is also consistent with Comment b. to Restatement (Second) of Torts § 552, which states, in pertinent part:

“The rule stated in this Section applies not only to information given as to the existence of facts but also to an opinion given upon facts equally well known to both the supplier and the recipient. Such an opinion is often given by one whose only knowledge of the facts is derived from the person who asks it.”

(Emphasis added.) We find persuasive the analysis of Comment b. by the United States Court of Appeals for the Fourth Circuit in Private Mortgage Investment Services, Inc. v. Hotel & Club Associates, Inc., 296 F.3d 308, 314-15 (4th Cir.2002):

“Notably for our purposes, Comment b. to Restatement (Second) of Torts § 552 provides that ‘[t]he rule stated in this Section applies not only to information given as to the existence of facts but also to an opinion given upon facts equally well known to both the supplier and the recipient.’ Restatement (Second) of Torts § 552, cmt. b. (1977) (emphasis added). To be sure, the alleged negligent misrepresentations in ML-Lee [.Acquisition Fund v. Deloitte & Touche, 327 S.C. 238, 489 S.E.2d 470, 471 n. 3 (1997),] did not involve expressions of opinion, but rather involved misstatements of fact. Accordingly, neither court had occasion to address Comment b. to Restatement (Second) of Torts § 552 in ML-Lee.
“Such circumstance, however, far from keeps us in the dark about how the South Carolina Supreme Court would rule if presented with the issue before us. First, common sense tells us that if the South Carolina Supreme Court was comfortable in adopting the Restatement (Second) of Torts § 552 with respect to the liability of a professional accounting firm to a third party in the context of a misrepresentation of fact negligently supplied for the guidance of others, the court, if presented with the opportunity, would not hesitate to adopt Comment b. to § 552 with respect to the liability of a professional real estate appraisal firm to a third party in the context of a negligent appraisal of a parcel of real property supplied for the guidance of others. After all, Comment b. is the drafters of the Restatement (Second) of Torts ’ considered explanation of when § 552 applies to a particular fact pattern. Moreover, as with accountants, the Restatement (Second) of Torts ’ approach represents the soundest method of determining the scope of a professional real estate appraiser’s duty to third persons for negligent misrepresentation because it balances the need to hold professional real estate appraisers to a standard that accounts for their contemporary role in the financial world with the need to protect them from liability that unreasonably exceeds the bounds of their real undertaking.
“Next, dicta in another decision by the South Carolina Court of Appeals, namely AMA Management Corp. v. Strasburger, 309 S.C. 213, 420 S.E.2d 868 (S.C.Ct.App.1992), suggests that if faced with the facts of the present case, that court would adopt Comment b. to Restatement (Second) of Torts § 552. In AMA, the plaintiff, a sophisticated commercial entity, brought a negligent misrepresentation claim against another sophisticated commercial entity. AMA, 420 S.E.2d at 870. The plaintiff alleged that the defendant, via one of its contract negotiators, negligently misrepresented that certain loan guarantees that it was offering for purchase were ‘good.’ Id. at 875. Before disposing of the claim on the basis that the plaintiff had failed to prove that the alleged misrepresentation was false when made, and alternatively on the basis that the plaintiffs reliance on the alleged misrepresentation was not reasonable under the circumstances, id., the court stated in dicta that although a ‘mere statement of opinion, commendation of goods or services, or expression of confidence that a bargain will be satisfactory does not give rise to liability in tort, ... if the defendant has a pecuniary interest in making the statement and he possesses expertise or special knowledge that would ordinarily make it reasonable for another to rely on his judgment or ability to make carejul enquiry, the law places on him a duty of care with respect to representations made to plaintiff,’ id. at 874. This language is fully consistent with Comment b. to Restatement (Second) of Torts § 552.”

(Final emphasis added.) Accordingly, TKC’s opinion of the value of the property as stated in TKC’s appraisal report can serve as the basis of Bryant Bank’s negligent-misrepresentation claim.

Next, Bryant Bank argues that it presented substantial evidence that it relied upon TKC’s appraisal report in deciding to issue the loan to WST. As set forth above, Petroutson’s deposition testimony indicates that the opinion of value expressed in TKC’s appraisal report directly affected Bryant Bank’s decision to approve WST’s loan application. Therefore, Bryant Bank presented substantial evidence that it relied on TKC’s appraisal of the property.

For the reasons stated above, each of the arguments raised by the defendants in their partial-summary-judgment motion does not warrant the entry of a summary judgment in favor of the defendants on Bryant Bank’s negligent-misrepresentation claim. Therefore, the defendants’ partial-summary-judgment motion was due to be denied.

Conclusion

For the reasons stated above, we reverse the partial summary judgment as to Bryant Bank’s negligent-misrepresentation claim and we remand the case for further proceedings.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . The deposition testimony of Keith Watson, a Bryant Bank employee, indicates that TKC originally supplied an appraisal report that indicated the value of the property using only a cost-approach analysis. Watson’s deposition testimony also indicates that Bryant Bank requested that the value of the property be calculated using at least one additional method of valuation. The final appraisal report indicates that the $1,700,000 value is the average of a cost-approach value of $1,800,000 and a sales-comparison-approach value of $1,600,000.

      . The loan actually consisted .of two loans: 1) a loan of $610,000 that was obtained to purchase a piece of real property for $540,000, to cover the closing costs associated with the purchase, and to refinance a $50,000 term loan from another bank and 2) a $400,000 line of credit to finance accounts receivables and inventory purchases. However, the loans were part of a single transaction; therefore, we refer to them as a single loan for the purposes of this appeal. Additionally, Bryant Bank extended WST’s line of credit in April 2008.

      .Although the record does not contain the new appraisal, the deposition testimony of Peter Petroutson, a Bryant Bank representative, indicates that the new appraisal valued the property at $205,000.

      . The record does not contain a copy of the circuit court's June 10, 2013, order granting the defendants’ motion.

      . The exception in subsection (3) is not applicable here.

      “2 Several cases decided by courts in other states have applied to appraisers an analysis involving negligent misrepresentation. Some of these cases are Tackling v. Shinerman, 42 Conn.Supp. 517, 630 A.2d 1381 (1993); Larsen v. United Fed. Sav. & Loan Ass’n of Des Moines, 300 N.W.2d 281 (Iowa 1981); Mattingly v. First Bank of Lincoln, 285 Mont. 209, 947 P.2d 66 (1997); Ballance v. Rinehart, 105 N.C.App. 203, 412 S.E.2d 106 (1992); First Fed. Sav. Bank v. Knauss, 296 S.C. 136, 370 S.E.2d 906 (Ct.App.1988); Behn v. Northeast Appraisal Co., 145 Vt. 101, 483 A.2d 604 (1984); and Schaaf v. Highfield, 127 Wash.2d 17, 896 P.2d 665 (1995).”


author: MOORE,- Judge. PITTMAN, Judge,

text:
    D.G. v. K.H.
    2120827.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2013.
    Leonard F. Mikul, Bay Minette, for appellant.
   MOORE,- Judge.

D.G. (“the father”) appeals from a judgment of the Baldwin Juvenile Court (“the juvenile court”) terminating his parental rights to H.G. (“the child”).

On March 13, 2013, K.H. (“the mother”) filed a petition requesting that the juvenile court terminate the father’s parental rights to the child. After a trial, the juvenile court entered a judgment on June 17, 2013, terminating the father’s parental rights. On June 18, 2013, the father filed a motion for a new trial and an objection to the guardian ad litem’s report. The motion for a new trial was denied by operation of law, and the father timely appealed to this court.

On appeal, the father argues that the juvenile court erred in terminating his parental rights. Initially, however, we note that, although neither party has raised the issue whether the juvenile court had subject-matter jurisdiction over this matter, “it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983).

Section 12-15-114, Ala.Code 1975, a part of the Alabama Juvenile Justice Act of 2008 (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, provides, in pertinent part:

“(a) A juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision. A dependency action shall not include a custody dispute between parents. Juvenile cases before the juvenile court shall be initiated through the juvenile court intake office pursuant to this chapter.
“(c) A juvenile court shall also exercise exclusive original jurisdiction of proceedings arising out of the above juvenile court proceedings, including, but not limited to, each of the following:
“(2) Proceedings for termination of parental rights, as this term is defined in subdivision [ (14) ] of Section 12 — 15— 301[, Ala.Code 1975].”

In W.B.B. v. H.M.S., 141 So.3d 1062, 1064 (Ala.Civ.App.2013), this court held that, “unless the termination-of-parental-rights case arises out of one of the enumerated proceedings in subsection (a) [of § 12-15-114, Ala.Code 1975,] the juvenile court cannot exercise jurisdiction over that case unless some other jurisdictional statute expressly so provides.”

In the present case, although the testimony at the trial does indicate that there had been some prior proceedings concerning the child, the record does not affirmatively indicate that “[t]he petition [arose] out of any earlier or separate proceeding in which the child was alleged to be dependent, to have committed a delinquent act, or to need supervision.” W.B.B., 141 So.3d at 1065. This court may presume that a court of general jurisdiction has subject-matter jurisdiction over a particular action. See Blount Cnty. Bank v. Barnes, 218 Ala. 230, 232, 118 So. 460, 462 (1928) (opinion on rehearing) (“Where a court of general jurisdiction has exercised its powers, it will be presumed, unless the contrary appears of record, that all the facts necessary to give the court jurisdiction were duly found, and every step has been taken. Silence of the records of the court will not be sufficient to create a presumption of a want of jurisdiction.”). This court may not presume, however, that a statutory court of limited jurisdiction, like the juvenile court, see W.B.B. v. H.M.S., 141 So.3d at 1065 n. 1 (“[Jjuvenile courts, as purely statutory creatures, have only such jurisdiction as their jurisdictional statute explicitly grants.”), has the prerequisite subject-matter jurisdiction over a particular matter. See Walton v. Walton, 256 Ala. 236, 236-37, 54 So.2d 498, 499 (1951) (“The jurisdiction of the probate court to act in the premises is statutory and limited, and it must appear from the face of the proceeding that it has acted within the scope of that jurisdiction. Nothing is presumed.”). Hence, we cannot presume that the juvenile court correctly acted on the mother’s petition in this case.

In D.B. v. Coffee County Department of Human Resources, 26 So.3d 1239 (Ala.Civ.App.2009), this court reversed a judgment entered by the Coffee Juvenile Court and remanded the action because the jurisdiction of the Coffee Juvenile Court was questionable. In accord with D.B., we hereby remand this cause for the juvenile court to investigate its subject-matter jurisdiction and to determine for itself whether it had the power to adjudicate the mother’s petition in light of this court’s holding W.B.B. If the juvenile court determines that it had subject-matter jurisdiction to enter the judgment terminating the father’s parental rights, the juvenile court shall produce a record establishing the basis for its determination. If the juvenile court determines that it did not have jurisdiction to enter the judgment terminating the father’s parental rights, the juvenile court shall vacate its judgment and enter a new judgment dismissing the mother’s petition. The trial court shall make a return to this court within 14 days from the date this opinion is released.

REMANDED WITH ' INSTRUCTIONS.

THOMAS and DONALDSON, JJ„ concur.

PITTMAN, J., dissents, with writing, which THOMPSON, P.J., joins.

PITTMAN, Judge,

dissenting.

Consistent with the views I have expressed in my dissents in C.C. v. L.J., [Ms. 2120534, Sept. 6, 2013] — So.3d -, - (Ala.Civ.App.2013) (Pittman, J., dissenting), and W.B.B. v. 141 So.3d 1062, 1066 (Ala.Civ.App.2013) (Pittman, J., dissenting), I respectfully dissent.

THOMPSON, P.J., concurs.