author: THOMPSON, Presiding Judge.

text:
    Ex parte ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP. (In re Yvonne Mitchell v. Aramark Management Services Limited Partnership et al.).
    2130564.
    Court of Civil Appeals of Alabama.
    June 13, 2014.

      Joseph H. Driver of Carr Allison, Birmingham, for petitioner.
    Evan G. Allen of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   THOMPSON, Presiding Judge.

Aramark Management Services Limited Partnership (“Aramark”) petitions this court for a writ of mandamus directing the Montgomery Circuit Court (“the trial court”) to set aside an order denying Ara-mark’s motion for a protective order and to enter an order precluding Yvonne Mitchell from obtaining personnel records or eliciting testimony regarding the contents of personnel records from Aramark regarding its current and/or former employees. For the reasons set forth below, we grant the petition in part and issue the writ.

The materials the parties submitted in support of and in opposition to the petition indicate the following. Aramark employed Mitchell to work as a “sanitation worker” at Flowers Bakery (“the bakery”) in Montgomery. On August 31, 2012, Mitchell was cleaning a machine in the bakery when her left hand was caught in the machine. Mitchell lost her left index finger in the accident.

As a result of her injury, Mitchell filed a civil action against Aramark alleging a claim seeking workers’ compensation benefits. In the same action, Mitchell alleged a product-liability claim against Moline Machinery, Ltd., which manufactured the machine that caused Mitchell’s injury. Also named in the action are a number of fictitiously named defendants, who are described as co-employees of Mitchell’s who allegedly removed a safety device from the machine.

Litigation of this action is in the discovery phase. Mitchell has propounded interrogatories on Aramark. One of the interrogatories requested the identity of “any and all individual(s) or entity [sic] responsible for removing a safety device on the subject machine.” Aramark objected to the interrogatory to the extent that it was overly broad, unduly burdensome, or sought information that is immaterial, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Aramark went on to say that, without waiving its objection, it did not know the identity of any such person.

A second interrogatory sought information as to whether any employee of Ara-mark had been disciplined for his or her role in Mitchell’s injury and requested information regarding the identity of any such employee, any rule he or she might have violated, and any disciplinary action taken against that employee. Again, Ara-mark objected on the same grounds as it had to the previous interrogatory discussed.

During a deposition of Chris Harris, an Aramark employee who worked at the bakery, Harris identified five employees— including himself — whose employment with Aramark had been suspended or terminated because either they had removed safety devices from the machine in the past or they had known that the safety devices had been removed.

Mitchell noticed the deposition of Ara-mark’s corporate representative. In the notice, Mitchell stated that, in the deposition, she would be seeking the same information about employees who might have had a part in causing her injuries as she had in her interrogatories to Ara-mark. Mitchell also sought the personnel files of those employees. On learning what information Mitchell was seeking to elicit during the deposition of the corporate representative, Aramark canceled that deposition. On March 6, 2014, Ara-mark filed a motion asking the trial court for a protective order that would preclude its personnel files from discovery. The trial court denied the motion the next day, March 7, 2014, before Mitchell had the opportunity to file a response to the motion. Aramark then filed its petition for a writ of mandamus asking this court to direct the trial court to enter the requested protective order.

A writ of mandamus will be issued 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 Ocwen Federal Bank, FSB, 872 So.2d 810, 818 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).”

Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala.2004).

As to issues involving discovery disputes, our supreme court has written:

“ ‘ “Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co.. v. Rice, 585 So.2d 859, 862 (Ala.1991). Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion,' and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.”
‘Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003).
“ ‘Moreover, this Court will review by mandamus only those discovery matters involving (a) the disregard of a privilege, (b) the ordered production of “patently irrelevant or duplicative documents,” (c) orders effectively eviscerating “a party’s entire action or defense,” and (d) orders denying a party the opportunity to make a record sufficient for appellate review of the discovery issue. 872 So.2d at 813-14....’
“Ex parte Meadowbrook Ins. Group, Inc., 987 So.2d 540, 547 (Ala.2007).”

Ex parte Mobile Gas Serv. Corp., 123 So.3d 499, 504 (Ala.2013). Accordingly, we must determine whether the trial court exceeded its discretion in denying Ara-mark’s request for a protective order.

In its petition, Aramark contends that discovery of personal and confidential information regarding its employees and former employees is prohibited under Alabama law except under certain limited circumstances. In support of its contention, Aramark relies on Ex parte Liberty Mutual Insurance Co., 92 So.3d 90 (Ala.Civ.App.2012).

In Liberty Mutual, this court applied what is called “the rule-of-reason test” to determine whether personnel files are discoverable. Id. at 102. In adopting that test, this court quoted favorably from an opinion of the United States District Court for the District of Maine:

“ ‘There exists a strong public policy against disclosure of personnel files. Discovery of such files is permissible” if (1) the material sought is ‘clearly relevant,’ and (2) the need for discovery is compelling because the information sought is not otherwise readily obtainable.” In re Sunrise Securities Litigation, 130 F.R.D. 560, 580 (E.D.Pa.1989) (quoting Matter of Hawaii Corp., 88 F.R.D. 518[,] 524 (D.C[Haw.]1980)). General allegations ... do not suffice to render these records discoverable. Plaintiffs must first make an initial fact-specific showing.... See In re Sunrise Securities Litigation, 130 F.R.D. at 580.’
“In re One Bancorp Sec. Litig., 134 F.R.D. 4, 12 (D.Me.1991).”

Liberty Mutual, 92 So.3d at 102.

In Liberty Mutual, the plaintiff sought entire personnel files of all Liberty Mutual employees who were involved in the handling of his insurance claim. He specifically sought the resumes, licenses, certificates, and continuing-education records of those employees. Furthermore, the plaintiff sought documents pertaining to complaints and reprimands of those employees. As Aramark did in this case, Liberty Mutual argued that the plaintiffs discovery requests were overly broad and unduly burdensome and stated that the requested documents were irrelevant, immaterial, and not likely to lead to the discovery of admissible evidence. Liberty Mutual also argued that the documents requested by the plaintiff were confidential because they contained personal information and that the production of such information would be an invasion of its employees’ privacy. The trial court granted the plaintiffs requests for production, thus ordering Liberty Mutual to produce the personnel files.

On mandamus review, this court found that the plaintiff had not named any Liberty Mutual employee as a defendant in the action or alleged that Liberty Mutual had negligently hired, retained, or supervised any of the employees who had handled the plaintiffs claim. Therefore, this court stated that the employees’ resumes, credentials, general training, etc., were not relevant to the plaintiffs tort-of-outrage claim asserted against Liberty Mutual. This court then concluded that the trial court had exceeded its discretion in ordering the production of the entire contents of those personnel files. Still, this court stated that

“[a]ny information contained in the employees’ personnel files that specifically relates to their handling of [the plaintiffs] workers’ compensation claim, any information regarding any training they received to assess medical necessity or to deny Alabama workers’ compensation medical claims on grounds other than those set out in this state’s applicable laws and regulations, and any information that they received incentives, rewards, or the like for furthering the alleged unlawful scheme to deny Alabama workers’ compensation medical benefits to injured workers in this state would be relevant to prove Liberty Mutual’s alleged outrageous conduct and would be discoverable because that information would not be available to [the plaintiff] from other sources.”

Ex parte Liberty Mut. Ins. Co., 92 So.3d at 103. Therefore, this court ordered the trial court in Liberty Mutual to revise its order to limit discovery to the portions of the personnel files that meet the rule-of-reason test.

In this case, the trial court denied Aramark’s request to withhold from discovery the personnel files of its current or past employees before it had heard from Mitchell as to why the challenged discovery was relevant or whether the information Mitchell hoped to glean from the challenged discovery could be “readily obtainable” from another source. Liberty Mutual, 92 So.3d at 102. Based on this court’s holding in Liberty Mutual, once Aramark challenged its obligation to produce all or any portions of its employees’ personnel files to Mitchell, Mitchell was required to “ ‘first make an initial fact-specific showing’ ” that the files she was seeking meet the rule-of-reason test before the trial court could properly order Aramark to produce those files or any portion of those files. Liberty Mutual, 92 So.3d at 102. That was not done in this case. Accordingly, we conclude that the trial court exceeded its discretion in summarily ordering Aramark to produce the requested personnel files.

Our holding is not to be read as a blanket prohibition of production of the personnel files. Instead, the trial court is to follow the procedure set forth in Liberty Mutual to ensure that only relevant portions of employee personnel files are provided to Mitchell, while at the same time assuring “the broadest discovery” to her. 92 So.3d at 103. That procedure calls for the personnel files of the Aramark employees, if any, identified as having been involved in the removal of safety devices from the machine at issue to be produced in their entirety to the trial court for an in camera review so that the trial court can determine those documents that should be removed, or portions of which should be redacted, to prevent disclosure of irrelevant, sensitive, confidential, or private information — such as Social Security numbers, bank-routing and account numbers, insurance-contract numbers, and the like— and to determine which documents should be disclosed as falling within the parameters of this court’s opinion. Once the relevant documents or portions of documents are produced, they should be subject to a protective order limiting the dissemination of the information in the personnel files. See Liberty Mutual, 92 So.3d at 103-04.

For the reasons set forth above, we grant Aramark’s petition for a writ of mandamus in part, and we issue the writ, instructing the trial court to vacate its March 7, 2014, order' denying Aramark’s motion for a protective order prohibiting the production of personnel files and further instructing the trial court to reconsider that motion in accordance with the procedure set forth in this opinion.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . On March 18, 2014, more than a week after the trial court had denied Aramark's motion, Mitchell filed a motion in opposition to the motion for a protective order. There is nothing in the materials before us indicating what action, if any, the trial court took as a result of receiving Mitchell’s opposition motion.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Ex parte WATER WORKS BOARD OF THE CITY OF BIRMINGHAM. (In re Water Works Board of the City of Birmingham v. Alabama Surface Mining Commission and Shepherd Bend, LLC).
    2130694.
    Court of Civil Appeals of Alabama.
    June 20, 2014.

      K. Mark Parnell and Mary H. Thompson of Waldrep, Stewart & Kendrick, LLC, Birmingham, for petitioner.
    Grady Milton McCarthy, Jr., deputy atty. gen., Alabama Surface Mining Commission, Jasper, for respondent Alabama Surface Mining Commission.
    W. Anthony Davis III, Richard E. Davis, and Amber M. Whilloek of Starnes Davis Florie LLP, Birmingham, for respondent Shepherd Bend, LLC.
   THOMAS, Judge.

The Water Works Board of the City of Birmingham (“the WWBB”) seeks mandamus review of the Jefferson Circuit Court’s order granting the motion of the Alabama Surface Mining Commission (“the ASMC”) and Shepherd Bend, LLC, seeking a transfer of the action from the Jefferson Circuit Court to the Walker Circuit Court. The Jefferson Circuit Court based its decision on the language of Ala.Code 1975, § 9-16-79, which expressly states that the procedures for appeal of a decision of the ASMC provided in the Alabama Surface Mining Control and Reclamation Act (“the ASMCRA”), Ala.Code 1975, § 9-16-70 et seq., “shall take precedence over the Alabama Administrative Procedures Act” (“the AAPA”), Ala.Code 1975, § 41-22-1 et seq., which typically governs judicial review of the actions taken by or decisions of state agencies. See Ala.Code 1975, § 41-22-20 (setting out the procedure under the AAPA for judicial review of agency actions or decisions). Based on our review of the pertinent statutes, we deny the petition.

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).

Furthermore, because the determination of the proper venue for the WWBB’s action involves, in part, the construction of certain statutes, we note that our consideration of this petition will be guided by well-settled principles of statutory construction.

“It is [an appellate court’s] responsibility to give effect to the legislative intent whenever that intent is manifested. State v. Union Tank Car Co., 281 Ala. 246, 248, 201 So.2d 402, 403 (1967). When interpreting a statute, this Court must read the statute as a whole because statutory language depends on context; we will presume that the Legislature knew the meaning of the words it used when it enacted the statute. Ex parte Jackson, 614 So.2d 405, 406-07 (Ala.1993). Additionally, when a term is not defined in a statute, the commonly accepted definition of the term should be applied. Republic Steel Corp. v. Horn, 268 Ala. 279, 281, 105 So.2d 446, 447 (1958). Furthermore, we must give the words in a statute their plain, ordinary, and commonly understood meaning, and where plain language is used we must interpret it to mean exactly what it says. Ex parte Shelby County Health Care Auth., 850 So.2d 332 (Ala.2002).”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003).

The action below began as an appeal by the WWBB from a decision of the ASMC granting a surface-mining permit to Shepherd Bend. The WWBB brought the appeal in the Jefferson Circuit Court. The ASMC filed a petition challenging venue and seeking to have the action transferred to Walker County; Shepherd Bend joined in the petition. The Jefferson Circuit Court entered an order on September 26, 2013, transferring the action to the Walker Circuit Court, which, it concluded, was the sole appropriate venue for the WWBB’s action. The WWBB filed its mandamus petition in the Alabama Supreme Court on November 7, 2013. Our supreme court called for answers from the ASMC and Shepherd Bend on April 1, 2014. After the answers were filed and the petition was submitted for consideration by that court, that court determined that the petition fell within our jurisdiction and transferred the petition to this court on May 22, 2014. Because of the passage of time since its filing, we have expedited our consideration of the petition.

The WWBB argues in its petition that the Jefferson Circuit Court erroneously determined that the only proper venue for its action was Walker County. The WWBB contends that, because the ASMC-RA does not contain a provision explicitly providing the proper venue for an appeal of the ASMC’s decision on a surface-mining permit, the provisions governing venue set out in the AAPA should control. This is so, says the WWBB, despite the fact that the ASMCRA expressly states that its provisions regarding appeals should “take precedence” over the AAPA. § 9-16-79 (providing that the hearing and appeals procedures set out in that statute “shall take precedence over the Alabama Administrative Procedure Act”).

The AAPA was enacted, in part, “[t]o simplify the process of judicial review of agency action as well as increase its ease and availability.” § 41—22—2(b)(7). Generally speaking, the AAPA governs judicial review of actions taken by or decisions of a state agency. Ex parte Worley, 46 So.3d 916, 919 (Ala.2009) (“Section 41-22-20 provides the procedure for soliciting judicial review of final decisions of administrative agencies within the State.”). The venue provisions of the AAPA provide that a judicial-review proceeding of an agency’s action or decision may be commenced in one of three venues. Ala.Code 1975, § 41-22-20(b). First, the statute provides that venue is proper in the Montgomery Circuit Court. Id. Venue is also proper in a circuit court in the county in which the agency has its headquarters. Id. Finally, the statute provides that venue, “unless otherwise specifically provided by statute,” lies, in the case of an individual party, in the circuit court in the county where that party resides or, in the case of a corporate party, the county in which the corporate party has a registered office or a principal place of business. Id. Based on the venue provisions of the AAPA, the WWBB contends that venue was proper in the Jefferson Circuit Court because it, as a corporate party, has its principal place of business in Jefferson County.

However, the AAPA recognizes that the legislature may choose to reject its application to the judicial-review processes of certain state agencies. The AAPA states that other statutes governing state agencies must expressly provide that their provisions “shall take precedence over all or some specified portion of [the AAPA].” Ala.Code 1975, § 41-22-25(a). To be exempted from the provisions of the AAPA, a statute governing a state agency must specifically refer to the AAPA by name. § 41-22-25(a) & (b).

The ASMCRA contains language expressly stating that its provisions relating to appeals from actions taken by or decisions of the ASMC take precedence over the AAPA. § 9-16-79. The ASMCRA does not state that its provisions take precedence over “some specified portion” of the AAPA. In addition, the ASMCRA states that “[t]he procedure provided in this article for ... appeals shall be exclusive except as otherwise provided.” § 9-16-79(10); see Doggett v. Alabama Secs. Comm’n, 511 So.2d 204, 206 (Ala.Civ.App.1987) (“As a general rule, where a special statutory provision provides for an exclusive method of review for a particular type case, no other method of review is available.”). However, as noted, the ASMCRA does not contain a venue provision indicating where appeals from actions taken by or decisions of the ASMC should be brought.

The WWBB argues that the failure of the ASMCRA to specify venue for an appeal of the agency’s decision on a surface-mining permit should result in the application, by default, of the AAPA’s venue provisions. Despite the seeming logic of the WWBB’s argument, we cannot agree with the WWBB that the ASMCRA’s failure to contain a venue provision governing appeals from the actions taken by or decisions of the ASMC should result in the default application of the venue provisions of the AAPA. The legislature could have specified that the procedures stated in the ASMCRA took precedence over certain portions of the AAPA. However, the legislature specified that, without any limitations, the provisions of the ASMCRA governing appeals from decisions of the ASMC would take precedence over the procedures provided in the AAPA.

The solution proposed by the WWBB would do violence to the rules of statutory construction, because we would have to determine that the language of § 9-16-79 indicates that the procedures outlined in the ASMCRA would take precedence over only some portions of the AAPA and not others. The plain language of the statute leaves no room for such an interpretation. The ASMCRA specifically exempts appeals from the actions taken by or decisions of the ASMC from the procedures outlined in the AAPA.

The ASMC and Shepherd Bend argue that, instead of forging the venue provisions of the AAPA onto the ASMCRA, despite its express disavowal of the applicability of the AAPA, the missing venue provisions are supplied by the general rule that venue in an action against an agency is proper in the county in which the agency has its principal residence. See Alabama Youth Servs. Bd. v. Ellis, 350 So.2d 405, 407 (Ala.1977) (“There is a considerable body of law in this state, as there is elsewhere, requiring an action against a state agency ... to be brought in the county of official residence.”). The ASMCRA provides that the principal office of the ASMC is in Jasper, which is located in Walker County. Thus, the ASMC and Shepherd Bend contend that venue is proper as to the ASMC only in Walker County. Like the Jefferson Circuit Court, we agree that the language of the ASMCRA mandates such a conclusion.

The WWBB also argues that venue is proper in Jefferson County because, it contends, under Rule 82(c), Ala. R. Civ. P., it could bring its action in any county in which one of its claims could have been brought against any one of the parties to the action. According to the WWBB, venue for an action against Shepherd Bend is proper in Jefferson County under the venue statute governing venue of actions against corporations, Ala.Code 1975, § 6-3-7, and, therefore, it asserts, Jefferson County is a proper venue for its action. The WWBB contends that, although Shepherd Bend is a limited liability company, which is typically treated as a partnership, Shepherd Bend should be treated like a corporation for venue purposes because, the WWBB asserts, Shepherd Bend has “more corporate than non-corporate characteristics.” See Ex parte Miller, Hamilton, Snider & Odom, LLC, 942 So.2d 334, 336 (Ala.2006) (quoting the commentary to Ala.Code 1975, § 10-12-8, which states that a limited liability company, although typically treated as a partnership, should be treated as a corporation if it has “ ‘more corporate than noncorporate characteristics and is therefore treated as an association taxable as a corporation for federal income tax purposes’ ”).

However, we need not decide whether the materials provided to the Jefferson Circuit Court and to this court would establish that Shepherd Bend should be treated as a corporation for venue purposes, because, as the ASMC and Shepherd Bend argue, Shepherd Bend is not a “material defendant.” “[A material] defendant is one whose position is antagonistic to that of the plaintiffs because relief is sought against [it].” Ellis, 350 So.2d at 408. The Ellis court determined that a local bank that had been named as a defendant was merely a “proper party” in the action against a state agency. Id. at 409. The Ellis court further concluded that the bank was not a material defendant because no relief was sought from that party. Id. The court then stated that “[s]uch a party cannot control venue where, as here, it has no interest in the principal matter in controversy.” Id.

Similarly to the bank in Ellis, Shepherd Bend was named as a “proper party” to the appeal pursuant to § 9-16-79(4)b., which states that “[a]ll parties to the administrative [proceeding] shall be named parties in such an appeal.” Further, the WWBB is challenging the ASMC’s award of a permit to Shepherd Bend, and, like the complaint in Ellis, which failed to seek any form of relief from the bank, the WWBB’s complaint instituting the appeal does not seek relief from Shepherd Bend. Id. Thus, we conclude that Shepherd Bend is not a material defendant and that, even if we were to have concluded that it should be treated as a corporation for purposes of venue, venue would not lie in Jefferson County.

Finally, we note that the motion to transfer asserted the doctrine of forum non conveniens as an alternative basis for transferring the action. See Ala.Code 1975, § 6-3-21.1 (permitting a transfer of an action to another venue for the convenience of the parties and witnesses or in the interest of justice). In light of our resolution of the issue of proper venue, we need not consider the propriety of the transfer under § 6-3-21.1, because, in order for a party to seek a transfer of an action under that statute, the action must have been brought in a proper venue. § 6-3-21.1(a) (stating that a transfer may be sought “[w]ith respect to civil actions filed in an appropriate venue”); see Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d 12, 14 (Ala.2007) (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995)) (stating that “the doctrine of forum non conveniens, as codified at § 6-3-21.1, ‘has a field of operation only where an action is commenced in a county in which venue is appropriate’ ”).

We have concluded, based on our construction of the AAPA and the ASMCRA, that the Jefferson Circuit Court properly determined that venue of the WWBB’s action did not lie in Jefferson County and, instead, that venue was proper only in Walker County. Furthermore, because Shepherd Bend is not a material defendant in the action, even were Jefferson County an appropriate venue for an action against Shepherd Bend, the fact that Shepherd Bend is merely a “proper party” to the WWBB’s action seeking review of the ASMC’s decision to issue a permit to Shepherd Bend “cannot control venue.” Ellis, 350 So.2d at 409. Thus, the transfer of the action to the Walker Circuit Court was mandatory. Rule 82(d)(1) (“When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.”); Ex parte Wright Bros. Constr. Co., 88 So.3d 817, 821 (Ala.2012) (“Once venue has been shown to be improper, transfer of the action is mandatory.”). The WWBB has failed to demonstrate a clear legal right to the relief it seeks. Accordingly, its petition for the writ of mandamus is denied.

PETITION DENIED.

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., and MOORE, J., concur in the result without writings.

      . The ASMCRA does contain venue provisions for certain other actions that might arise under its provisions. See § 9—16—93(f)(1) (providing a venue for enforcement actions brought by the attorney general) & § 9-16-95 (providing a venue for a citizen action).

      . Rule 82(c) reads, in part: "Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”

      . Notably, the Miller court treated the limited liability company in that case as a partnership for venue purposes.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    T.C.S. v. D.O.
    2130010.
    Court of Civil Appeals of Alabama.
    June 20, 2014.

      Sarah Nicole Sullivan of Sullivan Law Practice, P.C., Winfield, for appellant.
    M. Lionel Leathers of Leathers Law Firm, Winfield, for appellee.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. A child was born of a relationship between D.O. (“the father”) and T.C.S. (“the mother”); the mother and the father never married. On October 28, 2009, the Marion Juvenile Court (“the juvenile court”) entered a judgment awarding the mother and the father joint legal and physical custody of the child; that judgment incorporated an agreement reached by the parties.

In January 2011, the father filed in the juvenile court a petition to modify custody of the child. On June 27, 2011, the juvenile court entered a judgment awarding the father sole legal and physical custody of the child and awarding the mother visitation at the father’s discretion. The mother appealed the June 27, 2011, judgment, and this court affirmed the judgment, without an opinion, on the basis that the mother had failed to raise before the juvenile court the issues she asserted on appeal. T.C.S. v. D.O. (No. 2100932, March 9, 2012), 129 So.3d 1049 (Ala.Civ.App.2012) (table).

In June 2012, the mother filed a petition in which she sought a more definitive award of visitation with the child, to prevent the father from relocating with the child, and to require the father to return the child to counseling. The father answered and counterclaimed, seeking an award of child support. The juvenile court conducted an ore tenus hearing over the course of three days.

On September 6, 2013, the juvenile court entered an order awarding the mother a standard schedule of visitation and ordering the mother to pay child support. The mother filed a purported postjudgment motion, and the juvenile court denied that motion. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (“A valid postjudgment motion may only be taken in reference to a final judgment.”). The mother then appealed. This court reinvested the juvenile court with jurisdiction to enter a final judgment, if appropriate. On April 8, 2014, the juvenile court entered an order denying the mother’s claim seeking to prevent the relocation of the child’s principal residence and her request that the child be returned to counseling. That April 8, 2014, order disposed of the remaining pending claims of the parties, and, therefore, it constituted the final judgment in this matter. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala.Civ.App.2005).

The mother first argues that the juvenile court erred in fashioning its child-support award. In ordering the mother to pay $200 per month in child support, the juvenile court expressly stated that the award did not comply with the Rule 32, Ala. R. Jud. Admin., child-support guidelines; the juvenile court concluded that the application of those guidelines “would not be appropriate due to the mother’s limited employment at this time.” The mother, however, argues that, although it appears that the juvenile court intended to lessen her child-support obligation by deviating from the child-support guidelines, the record contains no method of determining whether that deviation .actually lessened her child-support obligation or if it constituted an increase in the child-support obligation prescribed under the Rule 32 guidelines. The mother points out that the parties did not submit to the juvenile court the child-support forms required by Rule 32, and that the juvenile court did not incorporate any child-support form into its judgment. See Rule 32(E), Ala. R. Jud. Admin. (“A standardized Child-Support Guidelines form (Form CS-42 as appended to this rule) and a Child-Support-Obligation Income Statement/Affidavit form (Form CS^U as appended to this rule) shall be filed in each action to establish or modify child-support obligations and shall be of record and shall be deemed to be incorporated by reference in the court’s child-support order.” (emphasis added)).

The application of the Rule 32 child-support guidelines is mandatory. Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000). There is a rebuttable presumption that the amount of child support determined through the calculations on the required CS-42 child-support form is the correct amount of child support to be awarded. Ex parte Moore, 805 So.2d 715, 719 (Ala.2001). A court may deviate from the amount of child support recommended by the calculation pursuant to the CS-42 form, but the trial court must make written findings of fact to support that deviation. Id.; Rule 32(A)(1), Ala. R. Jud. Admin.

In Abbett v. Treadwell, 816 So.2d 477 (Ala.Civ.App.2000), the trial court stated that it was deviating from the child-support guidelines by ordering that the husband pay no postminority support for the parties’ disabled adult child. In that case, the trial court had concluded that any support paid by the husband might decrease the Social Security disability benefits the child was receiving. However, the trial court had not completed the required child-support forms before reaching its decision to deviate from the child-support guidelines. This court reversed, concluding that the trial court had not complied with Rule 32 when it failed to complete the required forms. This court explained that, without those forms, “we cannot determine how much child support the husband might be obligated to pay on behalf of his son, and this amount might be substantially more than any Social Security benefits received by the child.” Abbett v. Treadwell, 816 So.2d at 481.

In another case, this court explained:

“[Ijnherent in complying with Rule 32, Ala. R. Jud. Admin., is complying with Rule 32(A)(ii), if the facts support such a determination, i.e., that application of the guidelines, stating the criteria, would be manifestly unjust or inequitable. We further note that compliance with Rule 32(E), the filing of the forms, is mandatory even if the trial court found that application of the guidelines would be unjust or inequitable. Otherwise, an appellate court may be unable to review that finding by the trial court.”

Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994) (some emphasis omitted; some emphasis added).

In this case, the record contains no indication of the correct calculation of child support pursuant to the child-support guidelines. Although the juvenile court expressly stated that it was deviating from the child-support guidelines, the judgment and the record on appeal contain no determination of the amount of child support due under the proper application of the child-support guidelines. Therefore, the record contains no indication regarding the amount of the deviation from the application of those guidelines. As mentioned, “[compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable.” Thomas v. Norman, 766 So.2d at 859. Accordingly, we reverse the juvenile court’s judgment as to child support, and we remand this action for the juvenile court to complete the forms required under Rule 32(E) and to calculate the parties’ respective child-support obligations under the child-support guidelines. If, on remand, after properly applying the Rule 32 child-support guidelines, the juvenile court determines that the amount of the mother’s child-support obligation under those guidelines is unjust or inequitable, it has the discretion to deviate from those guidelines and to expressly state the reason for that deviation. Rule 32(A), Ala. R. Jud. Admin.; Suggs v. Suggs, 54 So.3d 921, 927 (Ala.Civ.App.2010).

The mother also argues that the juvenile court erred in denying her claim seeking joint legal, as opposed to joint physical, custody of the child. In most of the custody-modification actions that come before this court, the noncustodial parent seeks to modify an award of sole or primary physical custody of the child, such as the physical custody awarded to the father in this case. In such a case, the petitioning parent is required to demonstrate that there exists a material change in circumstances such that a change in .custody would promote the child’s best interests and that the disruptive effects of the change in custody would be offset by the benefits of that change. See Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984). However, a change in the legal custody of a child must be based on the child’s best interests. Harris v. Harris, 775 So.2d 213, 215 (Ala.Civ.App.1999). In Harris, this court explained:

“A shift in parental involvement in the major decisions affecting the child, which is what a change in legal custody accomplishes, would not disrupt the child or his or her living environment in any measurable way. Thus, we conclude that our supreme court, when developing the McLendon standard, contemplated that it would apply only to modifications of physical custody and not to modifications of legal custody, as those terms are now defined in § 30-3-151[, Ala.Code 1975], To modify legal custody, the trial court need only find that the best interests of the child are served by the modification. See § 30-3 — 152[, Ala.Code 1975].”

775 So.2d at 215 (some emphasis omitted; some emphasis added). The determination whether to modify legal custody of a child is within the sound discretion of the trial court, and this court will not reverse the trial court’s decision on that issue unless the judgment is plainly or palpably wrong. Hodgins v. Hodgins, 84 So.3d 116, 125 (Ala.Civ.App.2011).

The juvenile court heard ore tenus evidence on November 13, 2012, April 4, 2013, and August 8, 2013. The record indicates the following pertinent facts. The mother has a total of three children, none of whom is in her custody. After the entry of the June 27, 2011, judgment awarding the father sole legal and physical custody of the child and the mother visitation at the father’s discretion, the father afforded the mother only two hours’ visitation on alternating weekends. The record indicates that the father selected the times and locations of those visitations and that either he or a family member stayed nearby to supervise the mother’s visitation with the child.

The father testified that he objected to the men with whom the mother had had relationships after the entry of the June 27, 2011, judgment. The father presented evidence indicating that the mother had been involved with four men between December 2011 and November 2012; he stated that each of those men had a felony criminal record. One of those men had been convicted of a sexual offense against a 12-year-old child.

The father also stated that the mother’s lifestyle was unstable, and he presented evidence indicating that she had moved four times since the entry of the most recent judgment. We note that the father married at some point after the parties separated, and he and the child moved into a house owned by his wife. The father testified that he had lived at two residences since the entry of the June 2011 judgment and that, at the time of the hearing in this matter, he was considering relocating again.

The father testified that the mother was difficult and confrontational, and the mother testified that the father was controlling. The father submitted into evidence printouts of texts among him, his wife, and the mother that demonstrated petty disputes between the father and his wife and the mother.

The mother began a relationship with S.J. in November 2012, moved in with him in January 2013, and remained in a relationship with him at the time of the last hearing date in August 2013. Both the mother and S.J. testified that the relationship was stable and that, when they were not working, they spent time with family. The father stated that he had no objection to S.J.

After the second day of testimony, the juvenile court entered a pendente lite order on April 17, 2013, awarding the mother unsupervised visitation with the child during the day on Saturdays and Sundays on alternating weekends and, during the summer, on Monday following the weekends she did not exercise visitation. Evidence presented on the last day of the modification hearing indicated that the visitations and the exchanges had gone well. Also, the parties agreed that they had communicated adequately and with no conflict in arranging visitation and during the visitation exchanges. The mother testified that she wanted to have the right to make decisions concerning the child and that she felt that the father was excluding her from those decisions. As an example, the mother stated that the father had informed her at the last minute of the child’s kindergarten graduation. The father testified that he opposed sharing legal custody of the child with the mother. The father also testified that, although recent visitations had gone well, he did not want the mother to have overnight visitation with the child.

The mother argues that the evidence indicates that the father has attempted to frustrate her relationship with the child and, therefore, that the juvenile court should have awarded her joint legal custody of the child in order to protect her relationship with the child. The mother relies on Faellaci v. Faellaci, 98 So.3d 521 (Ala.Civ.App.2012), in which this court concluded that, because the parties had been legally separated rather than divorced, the proper inquiry was whether the change in legal custody of the children served the children’s best interests. The trial court left primary physical custody with the mother in that case but awarded the parties joint legal custody. The mother in Faellaci argued that the parties were engaged in a power struggle and that sharing legal custody would not serve the children’s best interests. This court noted this state’s policy favoring arrangements in which both parents are involved in rearing their children, see § 30-3-150, Ala. Code 1975, and it concluded that, given that policy and the facts of the case, the trial court had not erred in awarding the parties joint legal custody of their children. Faellaci v. Faellaci, 98 So.3d at 530.

The mother also cites Fricks v. Wood, 807 So.2d 561 (Ala.Civ.App.2001), a case in which the trial court modified custody to award the father in that case primary physical custody of the parties’ child. In doing so, the trial court found that the mother in that case had frustrated the father’s attempts to maintain a relationship with the child. This court affirmed, concluding that the trial court had not abused its discretion. The mother cites Fricks v. Wood as an illustration of the policy of this state to encourage both parents to be active and involved in their child’s life.

In this case, the record indicates that the father does not approve of the mother’s choices and lifestylé and that, until the entry of the pendente lite visitation order, he restrictively controlled her access to the child. However, the record also supports a conclusion that the mother’s past choices have been a cause for concern. The juvenile court could have concluded that joint legal custody would not serve the child’s best interests at this time. This court might not have reached the same decision reached by the juvenile court on the issue of the legal custody of the child. However, we cannot say that the mother has demonstrated that the juvenile court’s failure to award the parties joint legal custody of the child was plainly and palpably wrong. Hodgins v. Hodgins, supra. Accordingly, we affirm as to this issue.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

MOORE, J., concurs in part and concurs in the result in part, with writing.

MOORE, Judge,

concurring in part and concurring in the result in part.

I concur in that part of the main opinion reversing the trial court’s judgment insofar as it orders the mother to pay $200 per month in child support. As to that part of the main opinion affirming the trial court’s failure to award the parties’ joint legal custody of the child, I concur only in the result.

      . In his brief submitted to this court, the father argues that the issue of joint legal custody was not tried before the juvenile court. The father is correct that, on the first day of the three-day hearing, the mother did not mention a claim seeking joint legal custody. On the last day of the hearing, however, the mother' expressly sought an award of joint legal custody, and the father did not object to the mother’s presentation of evidence on that claim. Accordingly, we conclude that that claim was tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P.

      . The parties do not dispute that it was error for the juvenile court to award the mother visitation at the father’s discretion. See L.L.M. v. S.F., 919 So.2d 307, 314-15 (Ala.Civ.App.2005). As already indicated, this court affirmed the appeal of the judgment containing that visitation award on the basis that the mother had failed to preserve the issue for appellate review.