author: STUART, Justice.

text:
    Michelle D. MORGAN v. PUBLIX SUPER MARKETS, INC.
    1120522.
    Supreme Court of Alabama.
    Aug. 16, 2013.

      William L. Pfeifer, Jr., Birmingham; and Oscar Morgan III, Birmingham, for appellant.
    Patrick G. Montgomery and Ralph D. Gaines III of Gaines, Gault & Hendrix, PC, Birmingham, for appellee.
   STUART, Justice.

Michelle D. Morgan appeals the summary judgment entered by the Jefferson Circuit Court in favor of Publix Super Markets, Inc., on Morgan’s claim alleging a violation of the Alabama Medical Liability Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala.Code 1975 (“the AMLA”). We reverse and remand.

I.

On December 19, 2010, Morgan went to the pharmacy at the Publix grocery store at 7272 Gadsden Highway in Trussville to refill her prescription for amlodipine, a medication used to treat hypertension. Morgan had used this Publix pharmacy to fill this prescription, as well as other prescriptions, for several years without incident. However, on this occasion, the refill Morgan was given contained a mix of both amlodipine and furosemide pills. Both pills are apparently small, round, and white, and Morgan, not noticing a difference in this refill, proceeded to ingest one pill from the container each day for approximately the next two weeks. During this time, she began experiencing physical problems including swelling on her face, tingling lips, hives, and painful scales and hyperpigmentation around her mouth and eyelids. Believing she was experiencing an allergic reaction to something, Morgan treated these symptoms with Benadryl, an over-the-counter antihistamine.

After approximately two weeks, Morgan returned to the Publix pharmacy to fill another prescription. Megan Locklear, the assistant pharmacy manager, approached Morgan at that time and told her that her last amlodipine refill had accidentally been partially filled with furosemide. Locklear further told Morgan that the pharmacy could not account for approximately 10 or 12 furosemide pills and gave Morgan the identification number printed on the furosemide pills. After returning home, Morgan discovered approximately two furosenide pills among the pills remaining in her amlodipine refill. Locklear subsequently telephoned Morgan, told her not to take any of the pills, and offered to refill the prescription. Morgan instead transferred the prescription to a different pharmacy and disposed of the remaining pills.

Morgan thereafter consulted with her primary-care doctor, a dermatologist, and an allergist regarding the symptoms that she began experiencing after receiving the December 19, 2010, refill from the Publix pharmacy. She testified in a subsequent deposition that the hives and facial swelling went away fairly quickly after taking Benadryl and undergoing a steroid treatment; however, she also testified that it took almost a year and microdermabrasion treatments before the hyperpigmentation and scales were fully resolved.

On October 5, 2011, Morgan sued Pub-lix, alleging that she had sustained injuries as a result of the pharmacy’s negligent issuance of the wrong medication. In its answer, Publix denied causing Morgan’s injuries, asserted that her lawsuit was governed by the AMLA, and denied breaching any applicable standard of care. Following the close of the discovery period set forth by the trial court, Publix moved for a summary judgment, arguing that Morgan could not meet her burden of proof under the AMLA because she had not identified any expert witness who was qualified to testify that the Publix pharmacist who filled the prescription had breached the applicable standard of care. Morgan opposed the motion and, while acknowledging that her claim was governed by the AMLA, argued that a pharmacy’s negligence in dispensing the wrong medication was so apparent that a layperson could understand it without the assistance of expert testimony. On December 14, 2012, the trial court conducted a hearing on Publix’s summary-judgment motion, and, on January 3, 2018, it granted the motion and entered a summary judgment in favor of Publix, holding that Publix had established that its pharmacists were licensed by the Alabama State Board of Pharmacy and that Morgan had failed to timely identify any similarly situated individuals who could give expert testimony regarding the standard of care applicable to pharmacists licensed in Alabama. On February 1, 2013, Morgan filed her notice of appeal.

II.

Morgan argues that the trial court erred by entering a summary judgment in favor of Publix on her claim against it. We review this argument pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

III.

As an initial matter, we note that there is no dispute that the AMLA governs this action. The AMLA does not specifically provide that it applies to pharmacists; however, in Cackowski v. Wal-Mart Stores, Inc., 767 So.2d 319, 324-25 (Ala.2000), this Court held that pharmacists were included within the definition in the AMLA of “other health-care providers,” see § 6-5-481(8), Ala.Code 1975, to which the AMLA applies:

“After careful consideration, we conclude that the pharmacist who filled [the appellant’s] prescription was included within the AMLA definition of ‘other health-care provider.’ To hold otherwise would be inconsistent with our prior decisions, particularly the decision in Tuscaloosa Orthopedic Appliance Co. v. Wyatt, [460 So.2d 156 (Ala.1984),] where neither an employment relationship nor a contractual relationship existed between the physician and the orthotist. An individual goes to a physician for treatment of a physical complaint. Upon examining the patient, the physician may determine that a course of medication is necessary to treat the patient’s condition. Accordingly, the physician writes out a prescription, which the patient takes to the pharmacy of his choice to be filled. Although it is the physician who prescribes the medication, it is only a pharmacist/pharmacy that can fill the prescription, by supplying the patient with the called-for medication. See § 34-23-1(17) and (18), Ala. Code 1975. Because a pharmacist and/or a pharmacy is inextricably linked to a physician’s treatment of his patients, the dispensing of drugs is an integral part of the delivery of health care services to the public. For this reason, we conclude that a pharmacist is within the definition of ‘other healthcare provider’ set out in § 6-5-481(8), Ala.Code 1975.”

See also Ex parte Rite Aid of Alabama, Inc., 768 So.2d 960, 962 (Ala.2000) (holding that the operator of the pharmacy, as well as the individual pharmacist, is included within the AMLA definition of “other health-care providers”).

Under the AMLA, the plaintiff has “the burden of proving by substantial evidence that the health-care provider failed to exercise such reasonable care, skill, and diligence as other similarly situated health-care providers in the same general line of practice ordinarily have and exercise in a like case.” § 6-5-548(a), Ala.Code 1975. To successfully carry this burden, the plaintiff must prove (1) the appropriate standard of care, (2) the health-care provider’s deviation from that standard, and (3) a proximate causal connection between the health-care provider’s act or omission constituting the breach and the injury sustained by the plaintiff. Giles v. Brookwood Health Servs., Inc., 5 So.3d 533, 549 (Ala.2008). Moreover, establishing the applicable standard of care and the alleged breach of that standard of care “ordinarily” requires expert testimony from a “similarly situated health-care provider,” as that term is defined in § 6-5-548. Holcomb v. Carraway, 945 So.2d 1009, 1012 (Ala.2006). Although Morgan identified two physicians she might call to give expert testimony, Publix correctly argues that, because those physicians are not pharmacists, they are not qualified to give expert testimony regarding the standard of care applicable to pharmacists and whether that standard of care was breached in this case. Accordingly, Publix argues, the summary judgment entered by the trial court was appropriate because, it says, Morgan cannot prove her case, thus entitling Publix to a judgment as a matter of law.

Morgan concedes that the AMLA applies to her claim against Publix and that expert testimony from a similarly situated health-care provider is typically needed to prove AMLA claims. However, she argues that her claim falls within the narrow class of AMLA claims for which no expert testimony is needed because, she argues, Publix’s lack of care in partially filling her amlodipine prescription with the wrong medication “is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand it.” Rosemont, Inc. v. Marshall, 481 So.2d 1126, 1129-30 (Ala.1985). In support of her argument, Morgan cites cases from other jurisdictions making similar holdings. See, e.g., Bender v. Walgreen Eastern Co., 399 N.J.Super. 584, 591, 945 A.2d 120, 123 (2008) (“We are unable to distinguish the error of substitution in this case — a pharmacist’s filling a prescription with a drug other than the one prescribed — from the errors our courts have found sufficiently careless to be ‘readily apparent to anyone of average intelligence and ordinary experience.’ [Estate of] Chin [v. Saint Barnabas Med. Ctr.], 160 N.J. [454,] 469-70, 734 A.2d 778 [ (1999) ] (internal quotations omitted). The deviation by a pharmacist who provides a drug different than the one prescribed is as clear as the deviation of a dentist who pulls the wrong tooth.”), and Walter v. Wal-Mart Stores, Inc., 748 A.2d 961, 972 (Me.2000) (“The negligence of the pharmacist and the harmful results [of filling a prescription with the wrong drug] were sufficiently obvious to be within the common knowledge of a lay person. It does not take an expert to know that filling a prescription with the wrong drug and failing to take the steps in place in that pharmacy to check for the wrong drug is negligence.”).

In countering Morgan’s argument, Publix does not directly dispute that a pharmacist’s error in filling a prescription with the wrong medicine is sufficiently obvious as to be comprehensible by a layperson without the assistance of expert testimony; rather, Publix argues that this Court has not yet recognized this scenario as one in which expert testimony is unnecessary and that expanding the exception to include this scenario would be inappropriate in light of the doctrine of res ipsa loquitur, which, Publix argues, the exception is founded upon. However, this Court already rejected similar arguments in Ex parte HealthSouth Corp., 851 So.2d 33 (Ala.2002), in which we affirmed a judgment entered by the Court of Civil Appeals holding that no expert testimony was needed to establish “whether the nurses breached the standard of care by completely ignoring for 30 minutes to an hour a call for assistance by a patient who ha[d] just returned from the surgical ward following back surgery and who was under orders not to get out of bed.” 851 So.2d at 38. On certiorari review, the petitioner argued to this Court that the Court of Civil Appeals’ holding conflicted with Anderson v. Alabama Reference Laboratories, 778 So.2d 806 (Ala.2000), in which we stated:

“As a general rule, in a medical-malpractice action, the plaintiff is required to produce expert medical testimony to establish the applicable standard of care and a breach of that standard of care, in order to satisfy the plaintiffs burden of proof. See Allred v. Shirley, 598 So.2d 1347, 1350 (Ala.1992) (citing Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156, 161 (Ala.1984)). However, ‘[a]n exception to this rule exists “in a case where want of skill or lack of care is so apparent ... as to be understood by a layman, and requires only common knowledge and experience to understand it.”’ Wyatt, 460 So.2d at 161 (quoting Dimoff v. Maitre, 432 So.2d 1225, 1226-27 (Ala.1983)). This Court has recognized the following situations as falling within this exception:
“ ‘ “1) where a foreign instrumentality is found in the plaintiffs body following surgery; 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment; 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice; and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor’s allegedly negligent conduct.” ’
“Allred, 598 So.2d at 1350 (quoting Holt v. Godsil, 447 So.2d 191, 192-93 (Ala.1984) (citations omitted in Allred)).”

778 So.2d at 811. The petitioner specifically argued to this Court that, because the plaintiffs had not presented expert testimony and because their claim did not fall within any of the four circumstances enumerated in Anderson, the trial court had properly entered a summary judgment in its favor. 851 So.2d at 37. However, we declined to hold that the list of exceptions in Anderson was exhaustive, stating that “[s]uch a restrictive result would not be consistent with an application of the general statement of the exception ‘“where want of skill or lack of care is so apparent” ’ that only ‘ “common knowledge and experience” ’ are required to evaluate the plaintiffs allegations. [Tuscaloosa Orthopedic Appliance Co. v.] Wyatt, 460 So.2d [156,] 161 [ (Ala.1984) ].” 851 So.2d at 38. Thus, the fact that this Court has not previously concluded that a pharmacist’s error in filling a prescription with the wrong medicine is sufficiently obvious as to be comprehensible by a layperson without the assistance of expert testimony does not preclude us from so concluding now.

Publix nevertheless urges us not to do so because, it argues, the exception to the rule that expert testimony is required in an AMLA case is premised upon the doctrine of res ipsa loquitur and, Publix further argues that doctrine is inapplicable to the present case. In Kmart Corp. v. Bassett, 769 So.2d 282, 286 (Ala.2000), we explained the doctrine of res ipsa loquitur as follows:

“The res ipsa loquitur doctrine allows ‘an inference of negligence where there is no direct evidence of negligence.’ Ex parte Crabtree Industrial Waste, Inc., 728 So.2d 155, 156 (Ala.1998). For the doctrine to apply, a plaintiff must show that:
“ ‘(1) the defendant ... had full management and control of the instrumentality which caused the injury; (2) the circumstances [are] such that according to common knowledge and the experience of mankind the accident could not have happened if those having control of the [instrumentality] had not been negligent; [and] (3) the plaintiffs injury ... resulted from the accident.’
“Crabtree Industrial Waste, 728 So.2d at 156 (quoting Alabama Power Co. v. Berry, 254 Ala. 228, 236, 48 So.2d 231, 238 (1950), and citing Ward v. Forrester Day Care, Inc., 547 So.2d 410, 411 (Ala.1989), and Khirieh v. State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1223 (Ala.1992)).”

Publix argues that it would be inappropriate to apply the doctrine of res ipsa loqui-tur in this case because, it says, Publix did not have full management and control of the medication it ultimately provided Morgan; it is possible, Publix argues, that a manufacturer or distributor could have provided it with the commingled amlodi-pine and furosemide. We first note that Publix’s hypothetical is belied by the evidence in the record indicating that Publix discovered the problem with Morgan’s refill and that a Publix pharmacist told Morgan that the Publix pharmacy at which she had had the prescription refilled could not account for approximately 10 or 12 furo-semide pills. Regardless, however, this Court recognized in Ex parte HealthSouth that the doctrine of res ipsa loquitur was not the only foundation for the exception to the expert-testimony rule in an AMLA case, stating:

“[The petitioner] is correct that the AMLA requires expert testimony in medical-malpractice cases, but this Court has recognized exceptions to that rale, when medical expertise is not necessary to prove the plaintiffs ease, such as here when nurses have failed to respond to a routine, custodial call from a patient. [The petitioner] itself points to cases in the line of Anderson and Loeb [v. Cappelluzzo, 583 So.2d 1323 (Ala.1991),] recognizing that circumstances exist that would make expert testimony unnecessary. In fact, Loeb acknowledged, like McGraw [v. St. Joseph’s Hospital, 200 W.Va. 114, 488 S.E.2d 389 (1997) ], that in a situation where res ipsa loquitur would apply, expert testimony would not be needed. Loeb, 583 So.2d at 1325. Although res ipsa loqui-tur is not applicable in this case, this Court has gone further and said that where ‘the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand, no expert medical testimony is necessary.’ Bell v. Hart, 516 So.2d 562, 566 (Ala.1987). This Court recognized that this exception ‘has usually been applied’ where res ipsa loquitur is applicable or where the injury is not ‘connected to the condition for which the plaintiff sought treatment,’ 516 So.2d at 566 (emphasis added), but this language does not require the conclusion that these are the only two circumstances in which a layperson would have common knowledge sufficient to understand whether the standard of care has been breached.”

851 So.2d at 40. Thus, courts might apply the exception to the expert-testimony rule in AMLA cases where the doctrine of res ipsa loquitur does not apply if the exception is otherwise applicable.

Returning to the instant case, we have previously stated that “ ‘[prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect.’ ” Stone v. Smith, Kline & French Labs., 447 So.2d 1301, 1305 (Ala.1984) (quoting Reyes v. Wyeth Labs., 498 F.2d 1264, 1274 (5th Cir.1974)). For this and other reasons the law requires them to be dispensed by licensed pharmacists as opposed to simply being purchased “over the counter.” Any individual who has ever had a prescription filled has a general understanding of this fact. Accordingly, we agree with the rationale set forth in Bender and Walter and hold that it is unnecessary for a plaintiff prosecuting an AMLA claim based on a pharmacy’s filling his or her prescription with the incorrect medication to put forth expert testimony establishing the standard of care and a breach thereof because the want of skill or lack of care in incorrectly filling a prescription is so apparent as to be within the comprehension of the average layperson without the assistance of expert testimony.

IV.

Morgan sued Publix, asserting that she had suffered physical, mental, and emotional injuries based on its negligence in partially filling her amlodipine prescription with furosemide. Following the close of discovery, the trial court granted Publix’s motion for a summary judgment, holding that Morgan was unable to prove her case because she had not identified an Alabama-licensed pharmacist as an expert witness and could not, therefore, establish a breach of the applicable standard of care as required by the AMLA Morgan appealed, and we reverse the summary judgment entered by the trial court, holding that a pharmacy’s negligence in dispensing the wrong medication is so apparent that a layperson can understand it without the assistance of expert testimony. The cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . In Russell v. Astrue, 626 F.Supp.2d 921, 927 n. 9 (D.Minn.2009), furosemide is described as " ‘a loop diuretic used in the treatment of edema associated with congestive heart failure or hepatic or renal disease and in the treatment of hypertension.' ” (Quoting Dorland’s Illustrated Medical Dictionary 718 (29th Ed. 2000).)

      . Publix also argues that we should not consider Morgan’s arguments on appeal because her response opposing Publix’s motion for a summary judgment did not contain a summary of disputed material facts, in violation, Publix argues, of Rule 56(c)(1), Ala. R. Civ. P. (stating, in relevant part, that, "[i]f the opposing party contends that material facts are in dispute, that party shall file and serve a statement in opposition supported in the same manner as is provided herein for a summary of undisputed material facts”). However, Morgan’s argument to both the trial court and this Court is not that a summary judgment in favor of Publix is inappropriate because there is a genuine issue of material fact but that, legally, she need not put forth expert testimony proving that Publix breached the applicable standard of care. See Dow, 897 So.2d at 1038 (the party moving for summary judgment must make "a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law " (emphasis added)). Morgan has supported her argument in both the trial court and this Court with citations to the relevant legal authorities, and that argument is properly before us.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Paul WOOTEN v. Beverly MORTON et al.
    2110068.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.
    Certiorari Denied Aug. 23, 2013 Alabama Supreme Court 1111510.

      Abbey Herrin, Birmingham, for appellant.
    Patricia C. Kellett of Kellett & Kellett, P.A., Fort Payne, for appellees.
   On Application for Rehearing

THOMAS, Judge.

The opinion of May 18, 2012, is withdrawn, and the following is substituted therefor.

Paul Wooten is married to Joyce Wooten. Joyce is the daughter of J.G. Horton, who died in 1992. Joyce was executrix of Horton’s estate until she began suffering the effects of Alzheimer’s disease. On March 2, 2004, the probate court appointed Paul as successor executor of Horton’s estate. Paul, in his capacity as executor of Horton’s estate, executed two executor’s deeds disposing of property owned by the estate (“the Horton estate property”) on March 2, 2004. The first deed conveyed to Joyce in fee simple 166.8 acres (“the home place”) that had been owned by Horton and that had purportedly been bequeathed to Joyce in Horton’s will. The second of the executor’s deeds conveyed to Joyce a life estate in another parcel of property; the remainder was conveyed to Horton’s surviving grandchildren, Beverly Morton, June Butler, Peggy Moses, John Horton, and Joy Oliver (referred to collectively as “the grandchildren”). On March 3, 2004, the probate court discharged Paul as executor and approved the final settlement of Horton’s estate.

Meanwhile, Paul, on March 2, 2004, acting under a purported power of attorney for Joyce, conveyed the home place to his brother and sister-in-law, McCoy and Linda Wooten. Paul later conveyed the mineral rights in the home place to the Woo-tens. Paul was made Joyce’s conservator in January 2008; however, the probate court limited Paul’s rights as conservator, stating that Paul “shall not convey, transfer, mortgage, lease, or otherwise encumber any real estate owned by Joyce.” Although Paul successfully petitioned the probate court to reopen Horton’s estate and to be reappointed as executor in December 2008, the grandchildren succeeded in having that order vacated in January 2009.

In December 2008, Paul sued the grandchildren in the DeKalb Circuit Court (“the trial court”). In the caption of the complaint and in the body of the complaint, Paul described himself as suing individually, as the personal representative of Horton’s estate, and as the conservator of Joyce’s estate. The Wootens were also plaintiffs in the suit. Paul and the Woo-tens sought a judgment declaring the rights of the various parties under Horton’s will, the rights of Joyce and the Wootens under the deeds executed by Paul, and the rights of the grandchildren under the executor’s deed conveying to them the remainder interest in the parcel in which Joyce held a life estate.

The parties agreed to waive a trial on the issues and instead submitted the case to the trial court on affidavits and pleadings. The trial court entered an order in July 2010, declaring that the executor’s deeds must be corrected to align with the will (most notably, to reduce the home place by 30 acres) and declaring that the deeds to the Wootens were null and void. The July 2010 order reserved jurisdiction over the attorney-fee request made by the grandchildren.

The probate court removed Paul as Joyce’s conservator in April 2010. In August 2010, Pat Tate, Joyce’s successor conservator, filed a Rule 59, Ala. R. Civ. P., motion seeking to vacate the July 2010 order. The trial court denied that motion, stating that no motion to substitute Tate as a party had been made pursuant to Rule 25(c), Ala. R. Civ. P. No appeal was taken by any party from the July 2010 order.

In October 2010, the trial court entered a “supplementary declaratory judgment” in which it again declared that the executor’s deeds must be corrected and that the deeds to the Wootens were null and void. The October 2010 order also ordered that Paul pay $10,000 toward the grandchildren’s attorney fee. No party appealed that order.

On June 20, 2011, Paul filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the July 2010 and October 2010 orders (“the declaratory-judgment orders”), arguing that the orders were void because Paul had been removed as Joyce’s conservator and because Tate, as Joyce’s successor conservator, had not been made a party to the declaratory-judgment action. Furthermore, Paul argued that he had never had the authority to represent Joyce’s interests in the declaratory-judgment action because, he said, the declaratory-judgment action could “encumber” Joyce’s interest in real property, which he had been precluded from doing by the probate court’s order regarding his rights as conservator of Joyce’s estate. Paul also argued that Joyce’s interests were not adequately protected during the declaratory-judgment action because the trial court had failed to appoint a guardian ad litem for Joyce, which, Paul argued, was required by Rule 17(c), Ala. R. Civ. P. These defects, he contended, rendered the declaratory-judgment orders void.

As a result of Joyce’s failure to be adequately represented, Paul contended, the declaratory-judgment orders had “stripped” Joyce of 30 acres of property to which she was entitled under Horton’s will. Because the Rule 60(b) motion had as its goal setting aside the declaratory-judgment orders and because doing so would necessarily affect the property that was the subject of the declaratory-judgment action, Paul filed a notice of lis pendens pursuant to Ala.Code 1975, § 35^4-131, naming all the property that had been contained in Horton’s estate. The grandchildren moved to have the notice of lis pendens vacated and also sought an order requiring Paul to pay an attorney fee for their having to defend his Rule 60(b) motion, which they characterized as having been “filed without substantial justification,” as having been filed for the improper purposes of “causing ... vexatious uncertainty concerning title to land” and “causing unnecessary delay,” and as being “groundless in law and fact.” The grandchildren also moved to have Tate joined as a necessary party; Tate consented to join-der. Tate also sought vacation of the notice of lis pendens. In August 2011, the grandchildren sought a contempt judgment against Paul for failing to pay the attorney fee awarded in the declaratory-judgment action; they later amended their contempt petition to seek an attorney fee for legal services rendered in attempting to enforce the attorney-fee obligation.

On September 15, 2011, the trial court entered a judgment denying Paul’s motion to set aside the declaratory-judgment orders. In addition, the trial court vacated the notice of lis pendens and substituted Tate as next friend of Joyce. The trial court taxed the costs of the action to Paul and ordered that he pay an additional $14,000 toward the grandchildren’s attorney fee because, it concluded, Paul’s Rule 60(b) motion and the lis pendens notice “constitute a continuation of [the] bad faith” that began with “Paul’s exercise of bad faith and his egregious and unacceptable conduct” before and during the underlying declaratory-judgment action. Paul appealed the trial court’s judgment to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

The grandchildren have filed a motion to dismiss this appeal. In their motion, they argue that Paul lacks standing to appeal the judgment on the ground that Paul lacks standing in any representative capacity because he is no longer Joyce’s conservator, because Horton’s estate is no longer open, and because the judgment removed Paul as Joyce’s next friend. The grandchildren also challenge Paul’s standing to proceed in an individual capacity on the ground that the declaratory-judgment orders did not affect Paul’s individual rights.

Paul opposes the motion to dismiss. He first argues that he was a party to the trial court’s judgment, so, he contends, he clearly has standing to appeal that judgment. He further argues that, if he lacks standing to appeal the trial court’s judgment denying his Rule 60(b) motion, he must have lacked standing to institute the underlying declaratory-judgment action, thus rendering the declaratory-judgment orders void, as he contended in his Rule 60(b) motion.

We first note that in the September 2011 Rule 60(b) order, Paul was ordered to pay $14,000 toward the grandchildren’s attorney fee. We cannot conclude that any argument advanced by the grandchildren could deprive Paul of his right to appeal that portion of the trial court’s judgment. Thus, we will consider Paul’s argument regarding the award of attorney fees later in this opinion.

We are also not convinced that Paul would not have standing to appeal his removal as Joyce’s next friend; however, even if we assume, without deciding, that Paul has standing to appeal, we would affirm the trial court’s judgment on that issue. Paul’s argument on appeal regarding the trial court’s alleged error in removing him as next friend contains no citations to any relevant authority in contravention of Rule 28(a)(10), Ala. R.App. P. As a result, we decline to address Paul’s argument on appeal. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (stating that “[t]his court will address only those issues properly presented and for which supporting authority has been cited”).

However, regarding the other aspects of the trial court’s judgment, we conclude that the grandchildren are correct that Paul lacks standing to prosecute this appeal. Paul instituted the Rule 60(b) motion individually, as the executor of a now-closed estate, and as next friend of Joyce. Paul was removed as next friend because, at the time he filed his Rule 60(b) motion, Joyce already had a “duly appointed representative” who had the power to “[pjrosecute or defend actions, claims, or proceedings ... for the protection of estate assets.... ” pursuant to Ala.Code 1975, § 26-2A-152(c)(25) — her conservator, Tate. As noted above, insofar as Paul might have had standing to appeal his removal as next friend, this court has affirmed the trial court’s action on the basis that Paul did not present legal authority to support his argument that the trial court erred in doing so. Tate, who was substituted as a party to the Rule 60(b) action in place of Paul as next friend of Joyce, is the only party who would be entitled to appeal the judgment determining that the underlying declaratory-judgment orders were not void because of the failure of the trial court to appoint a guardian ad litem for Joyce once Paul was replaced as her conservator. Tate did not join in Paul’s Rule 60(b) motion and, in fact, actively opposed that motion; Tate also did not appeal from the denial of that motion.

Regarding the issue of the notice of lis pendens, we reach the same result. Paul’s Rule 60(b) motion had as its purpose to set aside the declaratory-judgment orders reforming the executor’s deeds and setting aside the deeds to the Wootens; thus, the notice of lis pendens was filed to notify any interested parties that title to those lands was being placed in dispute. Ala.Code 1975, § 85-4-131. Because the denial of Paul’s Rule 60(b) motion resulted in a failure to have the declaratory-judgment orders set aside, the notice of lis pendens would necessarily expire upon the expiration of the time for an appeal from the judgment or upon the conclusion of an appellate proceeding on the judgment. See Walden v. Hutchinson, 987 So.2d 1109, 1121 (Ala.2007) (quoting Jesse P. Evans III, Alabama Property Rights and Remedies § 5.18 (3d ed.2004)) (stating that a notice of lis pendens “ ‘continues for the duration of the litigation until it is terminated by judgment and the expiration of any appropriate period for appeal, or appellate determination, if an appeal is taken’” (emphasis omitted)). We have concluded that Paul lacked standing to appeal those aspects of the trial court’s judgment that would affect Joyce’s interests or the title to the Horton estate property. Because he lacked standing to appeal those aspects of the judgment, Paul necessarily lacks standing to complain that the trial court improperly vacated the notice of lis pendens.

We now turn to Paul’s argument that the trial court improperly ordered him to pay $14,000 toward the attorney fee of the grandchildren. The grandchildren sought an award of attorney fees for defending the Rule 60(b) motion in their August 9, 2011, “Motion for Payment of Attorney Fees and for Order Vacating Notice of Lis Pendens.” The grandchildren also brought a motion seeking enforcement of the trial court’s October 2010 order regarding attorney fees and an amendment to the motion in which they sought additional attorney fees for seeking the enforcement of the trial court’s previous attorney-fee award. In his response to those motions, Paul challenged the $10,000 attorney fee imposed in the October 2010 declaratory-judgment order. However, Paul never objected to the trial court’s ability to award the grandchildren an additional attorney fee for defending the Rule 60(b) motion or for seeking enforcement of the previous attorney-fee award.

Although no party characterizes the attorney-fee award in the present case as one being made pursuant to the Alabama Litigation Accountability Act (“the ALAA”), codified at Ala.Code 1975, § 12-19-270 et seq., we note that the motion seeking the award of attorney fees uses several of the terms set forth in Ala.Code 1975, § 12-19-271, to describe the term “without substantial justification,” including “vexatious,” filed “for any improper purpose,” and “groundless in fact or law.” Thus, because we construe an allegation based on its substance and not its form or label, we conclude that the grandchildren sought an award of attorney fees pursuant to the ALAA, and we will review the award of $14,000 in attorney fees to the grandchildren as an award made pursuant to the ALAA. See Elizabeth Homes, L.L.C. v. Cato, 968 So.2d 1, 8 (Ala.2007) (“The substance of the plaintiff’s allegations control.”); see also Schweiger v. Town of Hurtsboro, 68 So.3d 181, 184 (Ala.Civ.App.2011) (construing a request for an attorney fee as one being made pursuant to the ALAA because the allegation that the plaintiffs “‘case [was] not plead [sic] in good faith and otherwise fails to rise to the level of initiating legal and/or equitable actions in the State of Alabama’ is tantamount to an allegation that [the plaintiffs] action was initiated ‘without substantial justification,’ as that term is defined in the ALAA”).

Paul argues that the trial court’s determination that the Rule 60(b) motion was filed in bad faith is not supported by the record. However, we are unable to consider Paul’s argument because of the failure of the trial court to comply with the requirements imposed upon it by the ALAA. As we explained recently in Schweiger, a trial court must set out the legal or factual support for its determination that an action, claim, or defense was filed “without substantial justification.” Schweiger, 68 So.3d at 184.

“Ala.Code 1975, § 12-19-273, requires a trial court assessing attorney fees under the ALAA to ‘specifically set forth the reasons’ underlying its decision to assess attorney fees. See also Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993) (‘Additionally, we will require a trial court making the “without substantial justification” determination to make its determination, the ground or grounds upon which it relies, and the legal or evidentiary support for its determination, a part of the record, either by drafting a separate written order or by having these findings transcribed for the official record.’).”

Id.

The trial court’s attorney-fee award in the present case states only that the award is based on the “continuation of bad faith” exhibited by Paul in the underlying declaratory-judgment action. Contrary to the express direction of our supreme court in Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 418 (Ala.1993), and Morrow v. Gibson, 827 So.2d 756, 761 (Ala.2002) (“Pacific Enterprises does stand for the proposition that the trial court must give a basis for its ruling.”), the trial court in the present case does not recite “the legal or evidentiary support for its determination” that the Rule 60(b) motion was filed “without substantial justification” because Paul was acting in “bad faith.” Schweiger, 68 So.3d at 184. Thus, the trial court’s award of attorney fees was made without the necessary findings under the ALAA, and we must reverse that award and remand the cause to the trial court for it to set out specific factual or legal support for the award in compliance with the ALAA and with our supreme court’s directive in Pacific Enterprises.

The grandchildren’s request for an attorney fee on appeal is denied.

APPLICATION OVERRULED; OPINION OF MAY 18, 2012, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND CAUSE REMANDED WITH INSTRUCTIONS.

PITTMAN, BRYAN, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.

      . Because the trial court's judgment did not address the grandchildren's contempt claim insofar as it related to Paul's failure to pay the attorney-fee award imposed in the October 2010 declaratory-judgment order, we remanded the cause to the trial court for it to resolve the outstanding contempt claim in order to render the judgment final. See, e.g., Lunceford v. Monumental Life Ins. Co., 641 So.2d 244, 246 (Ala.1994) (explaining that a final judgment must adjudicate all the claims and determine the rights and liabilities of all parties); Kelley v. U.S.A. Oil Corp., 363 So.2d 758, 759-60 (Ala.1978) ("To support an appeal, the order appealed from must be a final judgment.”); and Faulk v. Rhodes, 43 So.3d 624, 625 (Ala.Civ.App.2010) ("A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided.”). The trial court and the parties have notified this court that they considered the contempt claim to be resolved by a separate garnishment proceeding through which the attorney-fee award was paid. Thus, we conclude that the grandchildren no longer seek a contempt finding against Paul and therefore that the judgment is final.

      . Paul does not specifically argue that he has standing by virtue of his status as the former executor of Horton's estate. Because Paul was discharged as executor by the probate court, he does not have the ability to act on behalf of Horton’s estate. Humphrey v. Boschung, 47 Ala.App. 310, 315, 253 So.2d 760, 765 (Civ.1970) (stating that "after discharge [of an executor] no further authority to act on behalf of the estate exists”). Accordingly, we will not further consider whether Paul has standing as the former executor of Horton's estate.

      . Because the trial court indicated that it had concluded that Paul’s bad faith in filing the Rule 60(b) motion was a continuation of the bad faith he had exhibited in the underlying declaratory-judgment action, we also reviewed the judgment awarding attorney fees in the underlying declaratory-judgment action. That award also yields no specific legal or factual basis for the trial court's conclusion that Paul’s declaratory-judgment action had been filed in bad faith.


author: PITTMAN, Judge.

text:
    CITY OF MONTGOMERY v. Sylvester VAUGHN and Terrance Caffey.
    2110872.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Rehearing Denied June 14, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121138.

      Jason C. Paulk, Montgomery, for appellant.
    Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellees.
   PITTMAN, Judge.

The City of Montgomery (“the City”) appeals from a summary judgment in a quasi in rem action, ordering it to return to Sylvester Vaughn and Terrance Caffey cash that had been seized from them by officers of the Montgomery Police Department (“the MPD”). We reverse.

Facts and Procedural History

On February 2, 2007, Caffey was stopped by an MPD officer for a traffic violation. A warrantless search of Caf-fey’s vehicle revealed approximately $8,800 in cash and a controlled substance. Caffey was arrested and charged with trafficking in drugs, a violation of § 13A-12-213, Ala. Code 1975. On February 7, 2007, Montgomery police officers obtained a warrant from the Montgomery Municipal Court to search Caffey’s residence. Upon execution of the warrant, MPD officers seized $17,875 in cash from the residence and $3,500 from a vehicle in the driveway.

On August 6, 2008, Vaughn was arrested by an MPD officer for distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. During a search incident to Vaughn’s arrest, the officer seized $6,207 in cash from Vaughn.

On August 17, 2010, Vaughn filed an action against the City in the Montgomery Circuit Court, alleging that, after the seizure of his cash, the MPD had failed to notify state officials to institute prompt proceedings to forfeit the property to the State as required by § 20-2-93(e), Ala. Code 1975; that, instead, the MPD had transferred the property to the Drug Enforcement Administration (“the DEA”) to commence federal forfeiture proceedings; and that, at the conclusion of the federal forfeiture proceedings, the DEA had returned 80 to 90 percent of the forfeited cash to the MPD and had kept the remainder as an administrative fee. Vaughn further alleged that, because a municipality has no standing to institute a forfeiture proceeding under state law, the MPD had conspired with the DEA to have the property forfeited to the United States, thereby bypassing state law and “fil[ling its] own coffers with the spoils.” Based on those allegations, Vaughn brought claims individually and on behalf of a putative class of “all individuals whose property was seized by any MPD officer acting in his capacity as such and subsequently turned over to the DEA, U.S. Customs, or Federal Bureau of Investigation for forfeiture purposes.”

Vaughn amended the complaint several times. On December 2, 2010, Vaughn added Caffey’s claim against the City, based on allegations similar to those that Vaughn had previously made — i.e., that the MPD had seized Caffey’s cash and turned it over to the DEA to commence federal forfeiture proceedings and that, at the conclusion of the federal forfeiture proceedings, the DEA had returned the majority of the cash to the MPD and had kept the remainder as an administrative fee. Vaughn also added the claims of Ronald Kidd and Teo-dosio Arroyo Martinez against defendants F.A. “Bubba” Bingham, the director of the Alabama Department of Public Safety (“the DPS”), and Alabama State Trooper Darrell Seymour (Bingham and Seymour are hereinafter referred to collectively as “the DPS defendants”).

The City moved to dismiss the claims of Vaughn and Caffey, insisting that the claimants had failed to state a claim upon which relief could be granted and arguing, among other things, that this court’s decision in Green v. City of Montgomery, 55 So.3d 256 (Ala.Civ.App.2009) (holding that state court had properly exercised in rem jurisdiction in an action seeking return of seized currency because the claimants had filed that action before the currency had been transferred to the DEA and the DEA had adopted the seizure), barred the relief sought by the claimants because their state-court action seeking return of the cash had been filed after the claimants’ cash had been transferred to the DEA and federal forfeiture proceedings had been commenced. The circuit court denied the City’s motion to dismiss, and the City answered the complaint, asserting as to the claims of Vaughn and Caffey, among other defenses, collateral estoppel.

The parties filed cross-motions for a summary judgment. In a brief supporting its motion as to Vaughn’s claim, the City asserted that Vaughn had “already argued to no avail before the United States District Court for the Middle District of Alabama that the state court and not the federal court had exclusive jurisdiction over the currency seized from him,” citing United States v. Six Thousand Two Hundred Seven Dollars ($6,207.00) in United States Currency, (No. 2:08-CV-999-MEF, July 20, 2009) (M.D.Ala.2009) (not reported in F.Supp.2d). On April 24, 2012, the circuit court granted Vaughn and Caffey’s summary-judgment motion and denied the City’s motion. The judgment states: “Neither party has offered any facts which may be considered by this court as to any transfer of either Caffey’s or Vaughn’s property to any federal agency for further proceedings. There is no record before this court of the institution of federal forfeiture proceedings against either Caffey’s or Vaughn’s property.” The court concluded that the Montgomery Circuit Court had exclusive in rem jurisdiction over Vaughn’s and Caffey’s property by -virtue of its having been seized pursuant to § 20-2-93(b), Ala.Code 1975.

Standard of Review

“An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala.2004). In addition, ‘[tjhis court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995).”

Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005).

Discussion

On appeal, the City argues that the circuit court erred in ordering it to return the property seized from Vaughn and Caf-fey because, it asserts, “the DEA had ah ready gained control over the currency and completed administrative forfeiture proceedings before this action was filed by Vaughn and Caffey in [Montgomery] Circuit Court on August 17, 2010, and December 2, 2010, respectively.”

Vaughn and Caffey take issue with that assertion, contending that the circuit court was correct in stating that it had been presented with no facts indicating that property seized from Vaughn and Caffey had been transferred to a federal agency for federal forfeiture proceedings before Vaughn and Caffey had filed their action in state court seeking return of the property. Vaughn and Caffey insist that the City’s assertion is based only upon the allegations of their complaint and the City’s response to the complaint, but, they maintain, “[a]IIegations are not facts.”

Caffey Claim

Facts alleged in a complaint and not denied in the answer are taken as true. See Woods v. Wood, 219 Ala. 523, 524, 122 So. 835, 836 (1929). Moreover, the City did more than simply fail to refute the factual allegations of the complaint; it affirmatively acknowledged the truth of those allegations. There was, in the present case, simply no dispute as to the fact that, before Caffey brought a state-court action for return of the cash seized from him, the cash had been transferred to the DEA for federal forfeiture proceedings and that, at the conclusion of those proceedings, the DEA had returned the majority of the cash to the MPD and had kept the remainder as an administrative fee.

The “equitable sharing” of forfeited funds between federal and state or local entities to which Caffey referred in his pleadings does not occur until after a federal court has entered a final judgment forfeiting the property to the United States. See De Santis v. State, 384 Md. 656, 657, 866 A.2d 143, 144 (2005). The applicable statute, 21 U.S.C. § 881(e)(1)(A), provides:

“(e) Disposition of forfeited property
“(1) Whenever property is civilly or criminally forfeited under this subchap-ter the Attorney General may—
“(A) ... transfer the property to any Federal agency or to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property.”

In the present case, the parties’ disagreement was not as to the existence of the underlying facts, but as to the legal import of those facts, namely: whether the MPD’s transferring the property seized from Caffey to a federal agency for federal forfeiture proceedings barred Caffey’s later state-court action seeking return of the property. The Supreme Court of Alabama definitively answered that question in Ervin v. City of Birmingham, 137 So.3d 901 (Ala.2013).

In Ervin, our supreme court held that a state-court action seeking the return of property that had previously been seized by municipal police officers, transferred to the DEA, and forfeited to the United States “amounts to a collateral attack in state court on a final judgment entered by a federal court.... As the successor in title to the forfeited property, the [municipality] is entitled to the res judicata benefit of that final judgment.” 137 So.3d at 905.

Caffey contends that the forfeiture of his property to the United States was not authorized because (a) the Montgomery Circuit Court had exercised preexisting in rem jurisdiction over the property by virtue of the Montgomery Municipal Court’s issuance of the warrant for the search whose execution resulted in the seizure of the property and (b) the MPD had no authority to transfer the property to the DEA. Rejecting the same arguments in Ervin, our supreme court stated:

“Even if all these contentions were correct, they amount only to an attack on the authority of the federal district court to exercise jurisdiction over the res in an in rem action, not an attack on the subject-matter jurisdiction of the federal court over a forfeiture action brought under federal law. As such, they come too late and are being advanced in the wrong court. See Porsche Cars North America, Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir.2002) (distinguishing between objections to subject-matter jurisdiction and objections to a court’s exercise of jurisdiction over the res in an in rem action, and explaining that, as with in personam jurisdiction, ‘in ... civil forfeiture cases, for years courts have held that objections to in rem jurisdiction may be waived’ and citing cases in support); United States v. Nineteen Thousand Eight Hundred Fifty Five ($19,855.00) Dollars in United States Currency (No. 2:12-CV-146-WKW, Nov. 19, 2012) note 6 and accompanying text (M.D.Ala.2012) (not selected for publication in F.Supp.2d) (explaining that objections to in rem jurisdiction may be waived if not timely asserted).”

137 So.3d at 904-05 (emphasis added). Based on the authority of Ervin, the judgment of the Montgomery Circuit Court with respect to Caffey’s claim is reversed, and the cause is remanded with instructions to enter a judgment in favor of the City.

Vaughn’s Claim

Although the unrefuted allegations of the complaint regarding Vaughn’s claim would normally make further inquiry into the underlying facts unnecessary, this court cannot ignore two decisions of the United States District Court for the Middle District of Alabama pertaining to the federal administrative-forfeiture action against the currency seized from Vaughn — United States v. Six Thousand Two Hundred Seven Dollars ($6,207.00) in United States Currency, (No. 2:08-CV-999-MEF, July 20, 2009) (M.D.Ala.2009) (not reported in F.Supp.2d) (hereinafter cited as “$6,207-1”), and United States v. Six Thousand Two Hundred Seven ($6,207) Dollars in United States Currency, 757 F.Supp.2d 1155 (M.D.Ala.2010) (hereinafter cited as “$6,207-11 ”).

In $6,207-1, which the City cited in its brief in support of its summary-judgment motion, the following facts appear:

“Sometime between August 6, 2008, and September 8, 2008, Montgomery Police officers transferred the ... currency to the DEA for forfeiture purposes. On October 7, 2008, Vaughn filed a claim asserting ownership of the ... currency.
“On December 17, 2008, the United States filed a verified complaint for forfeiture in rem.”

Id. On January 8, 2009, the federal forfeiture complaint was served on Vaughn’s counsel (who is appellate counsel for Vaughn and Caffey in the instant case). On January 11, 2009, Vaughn, acting through the same counsel, filed a motion to dismiss the federal forfeiture complaint based on the following grounds: (a) that the federal district court was precluded from exercising in rem jurisdiction over the property because, Vaughn maintained, the Montgomery Circuit Court had exercised preexisting in rem jurisdiction over the property pursuant to § 20-2-93(b), Ala.Code 1975, and (b) that the MPD had no authority to transfer the property to the DEA.

In a memorandum opinion issued on July 20, 2009 (1 year and 28 days before Vaughn filed his state-court action for return of the property on the same grounds), the federal district court in $6,207-1 addressed, and rejected, both arguments. That court stated:

“[Vaughn argues that] when the Montgomery Police seized the ... currency, in rem jurisdiction vested in the Circuit Court of Montgomery County. Therefore, the argument continues, because it is well established that ‘the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other,’ Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935), this Court lacks jurisdiction.
“Vaughn’s argument fails because of the doctrine of adoptive forfeiture. ‘[U]nder the “adoptive forfeiture” doctrine, the United States’ adoption of, the State’s seizure of [the plaintiffs’] cash has the same effect as if the government had originally seized the currency.’ U.S. v. $119,000 in U.S. Currency, 793 F.Supp. 246, 249 (D.Haw.1992). Adoptive forfeiture was incorporated from the common law into American jurisprudence by Justice Story in Taylor v. United States, 3 How. (44 U.S.) 197, 205, 11 L.Ed. 559 (1845):
“ ‘At the common law any person may, at his peril, seize for a forfeiture to • the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause.’
“Vaughn argues principally that this Court lacks jurisdiction over the ... currency because jurisdiction first vested in the Circuit Court of Montgomery County, Alabama. It is well established that with respect to in rem proceedings ‘the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other.’ Penn Gen. Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935); see [United States v.] Winston-Salem/Forsyth County [Bd. of Educ.], 902 F.2d [267,] 271 [(4th Cir.1990)]. However, under the doctrine of adoptive forfeiture, the date of the seizure dates back to the date the ... currency was initially seized by the Montgomery Police Department; it is as if federal authorities originally executed the seizure. See, e.g., U.S. v. Certain Real Property Known as Lot B Governor’s Rd., Milton, NH, 755 F.Supp. 487, 490 (D.N.H.1990); see also Jeffers v. U.S., 187 F.2d 498, 504 (D.C.Cir.1950) (‘The Government may adopt the seizure with the same effect as if it had originally been made by one duly authorized.’). As a consequence, jurisdiction vested in this Court at the time of the seizure, and the Circuit Court of Montgomery County never had in rem jurisdiction over the ... currency. See $119,000, 793 F.Supp. at 249; see also 3 Criminal Practice Manual § 107:67 (2009) (‘In an adoptive forfeiture, the state or local seizing agency turns the property over to federal authorities for forfeiture, and the state or local authorities do not take affirmative steps to seek forfeiture. After a federal agency adopts a state or local seizure, the property is deemed to have been seized by the federal government, and is thus subject to exclusive federal jurisdiction as of the date of seizure.’).
“Vaughn also argues that this Court does not have jurisdiction because the Montgomery Police Department had no authority to transfer the seized cash to the DEA under Alabama Code § 20-2-93(b). It is of little concern to this Court whether the Montgomery Police were acting pursuant to state law when they transferred the defendant currency to the DEA. Even assuming the transfer was ultra vires, the United States may adopt a seizure even when the person who seized the property had no authority to do so. Winston-Salem/Forsyth County, 902 F.2d at 272 (citing United States v. One Ford Coupe Auto., 272 U.S. 321, 325, 47 S.Ct. 154, 71 L.Ed. 279 (1926); United States v. One 1956 Ford Tudor Sedan, 253 F.2d 725, 727 (4th Cir.1958)). ‘It follows that the government may adopt a seizure where there was no authority to transfer the property.’ Winston-Salem/Forsyth County, 902 F.2d at 272.”

Acting through new counsel, Vaughn appealed from the order denying his motion to dismiss, but, on December 22, 2009, the United States Court of Appeals for the Eleventh Circuit dismissed the appeal as having been taken from a nonfinal and nonappealable order, citing 28 U.S.C. § 1291. Former counsel then entered a notice of appearance on March 9, 2010, and resumed his representation of Vaughn.

On September 24, 2010, the federal district court in $6,207-11 issued a memorandum opinion and order granting the Government’s motion for a summary judgment; directing the Government to file a proposed decree of forfeiture on or before October 1, 2010; and stating: “The Court will enter a separate final judgment.” 757 F.Supp,2d at 1165. The federal district court entered a final judgment of forfeiture on October 15, 2010. Vaughn did not appeal from that judgment. In light of the foregoing facts, appellate counsel’s argument that the circuit court was presented with no facts indicating that property seized from Vaughn had been transferred to federal agents for federal forfeiture proceedings is, at the very least, disingenuous.

When Vaughn filed his state-court action on August 17, 2010, the doctrine of collateral estoppel or “issue preclusion” barred him from asserting that, because a state court had exercised preexisting in rem jurisdiction over the cash, the federal district court could not properly exercise in rem jurisdiction over the same property.

“The elements of collateral estoppel are: (1) an issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties....
“... [T]he ‘same parties’ requirement is not strictly enforced if the party raising the defense of collateral estoppel, or the party against whom it is asserted, is in privity with a party to the prior action. The test for determining if two parties are in privity focuses on identity of interest.”

Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990) (citations omitted). The first and second elements of collateral estoppel are satisfied because the issue Vaughn sought to litigate in state court was identical to the issue he had actually litigated in $6,207-1, namely: whether the federal district court could properly exercise in rem jurisdiction over property that, Vaughn claimed, was subject to the preexisting in rem jurisdiction of the state court. The fourth element is also satisfied. Although the only “parties” to the federal forfeitui'e action were the United States and $6,207 in cash, Vaughn was a claimant to the cash and had the same interest in both the state and the federal proceedings. The United States in the federal-court action and the City in the state-court action had similar interests because each had a stake in having the cash forfeited.

The third element — whether the resolution of which court could properly exercise in rem jurisdiction over the cash was necessary to the judgment — is also satisfied, despite the fact that the federal district court’s order denying Vaughn’s motion to dismiss the forfeiture action was not a “final judgment” for purposes of appeal pursuant to 28 U.S.C. § 1291. See Restatement (Second) of Judgments § 13 (1982) (“The rules of res judicata are applicable only when a final judgment is rendered. However, for purposes of issue preclusion (as distinguished from merger and bar), ‘final judgment’ includes any pri- or adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.”); Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80 (2d Cir.1961).

In Lummus, the United States Court of Appeals for the Second Circuit stated:

“Whether a judgment, not ‘final’ in the sense of 28 U.S.C. § 1291, ought nevertheless be considered ‘final’ in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. ‘Finality’ in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.”

297 F.2d at 89. The federal district court’s decision in $6.207-1 denying Vaughn’s motion to dismiss was not tentative. Vaughn’s motion was a dispositive one that, had it been granted, would have ended the litigation. The federal district court considered and thoroughly explained its reasons for rejecting Vaughn’s arguments. Although Vaughn had no right to appeal from the decision, there was no reason for permitting the issue to be reliti-gated in state court and very good reasons for not permitting it to be relitigated in state court, namely: the principles of federalism and comity.

The purpose of the rule of exclusive in rem jurisdiction, whereby “the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other,” Penn Gen. Cas. Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935), is to promote “the harmonious cooperation of federal and state tribunals,” Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456, 466, 59 S.Ct. 275, 83 L.Ed. 285 (1939), “to prevent unseemly conflicts between the federal and state courts,” Mandeville v. Canterbury, 318 U.S. 47, 49, 63 S.Ct. 472, 87 L.Ed. 605 (1943), and to maintain “comity between courts; such harmony is especially compromised by state and federal judicial systems attempting to assert concurrent control over the res upon which jurisdiction of each depends,” United States v. One 1985 Cadillac Seville, 866 F.2d 1142, 1145 (9th Cir.1989).

After the federal district court entered a final judgment of forfeiture on October 15, 2010, and the City received its equitable share of the forfeited funds, the City, “[a]s the successor in title to the forfeited property, [was] ... entitled to the res judicata benefit of that final judgment.” Ervin, 137 So.3d at 904. That is so, notwithstanding the fact that Vaughn filed his state-court action on August 17, 2010, before the final judgment of forfeiture in $6,207-11 was rendered, because, “[f]or purposes of res judicata, the effective date of a final judgment is the date of its rendition, without regard to the date of commencement of the action in which it is rendered or the action in which it is to be given effect.” Restatement (Second) of Judgments § 14 (1982). Comment a. of § 14 of the Restatement explains:

“In order that a final judgment shall be given res judicata effect in a pending action, it is not required that the judgment shall have been rendered before that action was commenced. Nor is a judgment, otherwise entitled to res judi-cata effect in a pending action, to be deprived of such effect by the fact that the action in which it was rendered was commenced later than the pending action. It is merely required that rendition of the final judgment shall antedate its application as res judicata in the pending action.”

See also Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 799 (1947), in which our supreme court stated:

“When two actions involving the same issue or issues, between the same parties or their privies, are pending at the same time, so that a final judgment in one would be res judicata or a bar in the other, when the judgment in one becomes final it may be urged in the other by appropriate proceedings, regardless of which action was begun first. It is the first final judgment although it may be in the second suit, that renders the matter res judicata in the other suit.”

The judgment of the Montgomery Circuit Court with respect to Vaughn’s claim is reversed, and the cause is remanded with instructions to enter a judgment in favor of the City.

REVERSED AND REMANDED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

      . The DPS defendants ultimately moved to dismiss the claims against them for lack of subject-matter jurisdiction. The circuit court denied that motion, and the DPS defendants petitioned this court to issue a writ of mandamus. We granted their petition and issued the writ in Ex parte Bingham, 129 So.3d 1017, 1018 (Ala.Civ.App.2012) (holding that, because the allegations of the complaint demonstrated that "a federal court had already acquired (and exercised) in rem jurisdiction over the claimants' property at the time the claimants filed an in rem proceeding in the Montgomery Circuit Court, the circuit court had no jurisdiction”). Based on our supreme court's holding in Ervin v. City of Birmingham, 137 So.3d 901 (Ala.2013), in a separate opinion issued today, we disavow the legal rationale employed in Bingham. See Payne v. City of Decatur, [Ms. 2110919, April 19, 2013] — So.3d —, —(Ala.Civ.App.2013).

      . The district court granted former counsel’s motion to withdraw from representing Vaughn on May 6, 2009.


author: PER CURIAM.

text:
    Tina M. Stone BALLENTINE, Bobby Stone, and Peggy Stone v. ALABAMA FARM CREDIT, ACA.
    2120026 and 2120268.
    Court of Civil Appeals of Alabama.
    May 17, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121020.

      Tina M. Stone Ballentine, Bobby Stone, and Peggy Stone, pro se.
    Robert H. Adams and Jesse P. Evans III of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellee.
   PER CURIAM.

Tina M. Stone Ballentine, Bobby Stone, and Peggy Stone (collectively “the Stones”) appeal from a summary judgment entered in favor of Alabama Farm Credit, ACA (“AFC”), on its claims against the Stones. AFC sued the Stones for ejectment and rent in connection with the foreclosure of certain property the Stones had purchased with a loan from AFC. The counterclaims asserted by the Stones were “stricken,” and the relief requested in those claims was explicitly denied in a separate order. The Stones did not appeal from the order denying their counterclaims.

Jon Stone, who is the son of Bobby Stone and Peggy Stone, also purportedly appeals from the summary judgment entered in favor of AFC; however, he was not a party in the action below. His name does not appear on the loan or mortgage documents relevant to this case, and AFC did not name him as a defendant. Although late in the proceedings the Stones began to include Jon’s name in the style of the case, he never moved to intervene in or otherwise join the action, and the record indicates that he was never added as a party to the case. In Mars Hill Baptist Church of Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala.1999), our supreme court stated:

“The law in the area of standing for purposes of appeal is well settled. One must have been a party to the judgment below in order to have standing to appeal any issue arising out of that judgment. Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala.1993). When a court denies a nonparty’s motion to intervene in an action, that nonparty cannot appeal from the final judgment in that action because it never became a party to that action. Duncan v. First Nat’l Bank of Jasper, 573 So.2d 270, 273 (Ala.1990).”

Because Jon Stone was not a party to this action, he has no standing to appeal from the judgment, and he is not included in our references to the Stones in this opinion.

The record indicates the following. In June 2003, AFC, known at that time as Federal Land Bank Association of North Alabama, FLCA, made a loan of $283,000 to the Stones. The loan was secured by a mortgage on approximately 40 acres of certain real property in Marshall County (“the property”). The Stones executed the mortgage in favor of AFC, which remains the holder in due course of the mortgage.

In November 2010 and May 2011, the Stones failed to make the semiannual payments on the loan. AFC exercised its right pursuant to the mortgage to call for payment of the loan in full. The Stones failed to pay AFC, and foreclosure proceedings were instituted on the property. On July 14, 2011, a foreclosure sale was conducted in accordance with Alabama law, and AFC purchased the property for $112,500. That amount did not cover the balance the Stones owed on the loan, however.

The foreclosure deed conveying the property to AFC was recorded in the Marshall Probate Court on July 14, 2011. On July 18, 2011, AFC provided the Stones with written notice that it had purchased the property and demanded possession of the property within ten days. The Stones refused to vacate the property, and they did not pay rent for their continued use or occupancy of the property.

On October 11, 2011, AFC filed an ejectment action against the Stones. It also sought rent from the Stones for the time during which they refused to vacate the property. The Stones, appearing in this action pro se, propounded discovery to AFC in which they sought, among other things, original documents related to the loan and the mortgage. AFC responded with general objections, stating, for example, that the Stones’ requests were over-broad and sought privileged information, and the like. However, in a letter dated April 27, 2012, AFC also provided the Stones with more than 800 pages of copies of documents, and it offered to allow the Stones to inspect the original documents.

On May 9, 2012, AFC filed a properly supported motion for a summary judgment in the ejectment action. The Stones filed a response; however, they did not include any evidentiary materials with their response. On May 23, 2012, the Stones moved to dismiss AFC’s action. Other motions and responses were filed in the action, and on July 24, 2012, the Stones filed their own “petition for summary judgment,” which included affidavits from the Stones. The gist of the Stones’ unsupported assertions is that AFC did not disclose “all of the facts” surrounding the loan and that, somehow, the loan or the mortgage was fraudulent. None of the assertions or materials submitted by the Stones related to their failure to make the required loan payments, AFC’s resulting foreclosure on the property, or AFC’s efforts to eject the Stones from the property.

On July 30, 2012, after a hearing on the various motions, the trial court granted AFC’s motion for a summary judgment; however, the judgment did not address AFC’s claim for the reasonable rental value of the property after the Stones refused to vacate it. By a separate order entered on July 30, 2012, the trial court denied the Stones’ motion to dismiss the ejectment action. The Stones filed a purported post-judgment motion, which was denied on September 5, 2012. In the order denying the purported postjudgment motion, the trial court also “struck” the Stones’ request for a summary judgment. Ballen-tine and Bobby Stone appealed from the July 30, 2012, order. This court assigned that appeal case number 2120026.

On November 16, 2012, this court entered an order in case number 2120026 reinvesting the trial court with jurisdiction to enter a final judgment addressing “all claims and forms of relief requested.” On November 30, 2012, the trial court entered a final judgment awarding AFC $3,000, which it determined was the reasonable rental value of the property during the Stones’ “wrongful occupancy” of that property. The trial court stated that all AFC’s claims had been ruled upon and all the Stones’ claims had been denied; therefore, the judgment of November 30, 2012, was a final judgment. The Stones timely appealed from the November 30, 2012, judgment. This court assigned that appeal case number 2120268. The two appeals were consolidated.

In its brief on appeal, AFC questioned this court’s jurisdiction over the appeal of the ejectment action, citing numerous appeals of ejectment actions that had been initially filed in the Alabama Supreme Court and then transferred to this court. This court therefore transferred the appeals to the Alabama Supreme Court, which, in turn, transferred the appeals back to this court pursuant to § 12-2-7(6), Ala. Code 1975.

It is questionable whether the Stones’ brief on appeal complies with the requirements of Rule 28(a), Ala. R.App. P. Their “Statement of the Issues” consists of 28 numbered statements that are assertions of fact and not issues to be considered on appeal, as required by Rule 28(a)(6). To the extent the Stones’ “Statement of the Issues” can be construed as a statement of facts, there are no references to the record, as required by Rule 28(a)(7). The Stones’ legal argument also consists of numbered statements, some of which contain footnotes to legal propositions. However, how those legal propositions relate to the statements is unclear. Nonetheless, we have attempted to discern the issues that the Stones are raising on appeal.

The Stones appear to argue that the trial court did not have jurisdiction in this matter because, they say, AFC did not have standing in this case. In support of their assertion, the Stones claim that when, in response to their requests for production of documents, “AFC stated that [it] did not have ‘custody, possession or control of the documents[’] in question, subject matter was forfeited and therefore standing does not exist.” It appears that the Stones contend that if AFC did not have “custody, possession or control” of the documents requested, including the original promissory note for the loan and the original mortgage, then it did not have standing to foreclose on the property.

The Stones’ argument is without merit. As mentioned, AFC objected to the Stones’ request for documents “to the extent” those documents were “not in the custody, possession or control of [AFC] or which could be obtained from another source.” That objection is not a statement that AFC did not possess the documents at issue, as the Stones would have this court believe. Moreover, AFC provided the Stones with 804 Bates-stamped pages of documents in response to the requests for production and also notified the Stones that it would make available for their inspection any original documents that were not privileged, in compliance with Rule 34, Ala. R. Civ. P. Although there is no requirement that discovery be filed with the court as part of the clerk’s record, we note that copies of the promissory note and the mortgage relating to the property are included in the record on appeal as part of AFC’s evidentiary submission in support of its motion for a summary judgment.

In their brief to this court, the Stones claim that their receipt of the Bates-stamped documents are of no consequence because, they say, AFC was “not ... the true party in interest and producing purported documents at a later point in time is fraud.” (Emphasis in the original.) They do not explain how AFC’s producing the Bates-stamped copies of the documents they requested constitutes fraud.

The Stones have not cited any authority for the proposition that a party loses standing to prosecute a case if that party fails to respond adequately to discovery requests.

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008).

To the extent that the Stones are arguing that AFC had to produce original documents as evidence in support of its motion for a summary judgment, this court has recently considered that issue and concluded otherwise. In Douglas v. Troy Bank & Trust Co., 122 So.3d 181, 183 (Ala.Civ.App.2012), this court wrote:

“The Douglases have cited no authority in which a nonjudicial foreclosure has been held invalid for failure to produce or present original documentation evidencing the underlying debt and security for repayment thereof. The record reveals that the bank introduced into evidence at trial various evidentiary exhibits, including photocopies of a note and a mortgage instrument bearing the Douglases’ signatures and the date of February 8, 2008. Because, in this case, we must conclusively presume, in the absence of a trial transcript, that the court’s judgment is supported by the omitted evidence, see Stone v. Stone, 26 So.3d 1228, 1231-32 (Ala.Civ.App.2009), we conclusively presume that the trial court deemed those photocopies sufficient to prove the bank’s right to seek ejectment. See Rule 1003, Ala. R. Evid. (admissibility of photocopies); cf. Ala. Code 1975, § 7-3-309(a) (UCC provision applicable to negotiable instruments setting forth circumstances under which a person is entitled to enforce such an instrument despite lacking possession of it).”

Rule 1003, Ala. R. Evid., provides that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” The Stones have not asserted either exception to the general rule set forth in Rule 1003. We conclude that there is no legal basis for the Stones’ contentions that the manner in which AFC responded to their requests for production of documents was somehow improper.

The Stones also contend that AFC was not a proper party in interest. That argument appears to hinge on the Stones’ belief that AFC could not produce the promissory note or the mortgage. Therefore, they say, AFC could not prove that it was entitled to receive loan payments and, apparently, did not have a right to foreclose on the mortgage when the payments were not made. Therefore, they say, the summary judgment was improper. The record simply does not support the Stones’ contention.

We review a summary judgment pursuant to the following standard:

“This Court’s review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala.Code 1975, § 12-21-12.”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

“‘A prima facie showing in an ejectment action requires the plaintiff to provide substantial evidence that it has legal title to the property when the complaint was filed and a right to immediate possession. Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005).’ ” Berry v. Deutsche Bank Nat’l Trust Co., 57 So.3d 142, 145 (Ala.Civ.App.2010) (quoting trial court’s judgment). In support of its motion for a summary judgment, AFC included evidence indicating that it had held the mortgage on the property; that the Stones had failed to make the required payments on the loan secured by the mortgage; that AFC had foreclosed on the property and had purchased it at a foreclosure sale that had been properly noticed; that AFC had a properly executed foreclosure deed, which had been recorded in the Marshall Probate Court; and that AFC had made a demand that the Stones vacate the property. AFC submitted substantial evidence demonstrating that it was entitled to a judgment in its favor in the ejectment action.

Therefore, the burden shifted to the Stones to produce substantial evidence demonstrating that there had been a wrongful foreclosure and, consequently, that AFC did not have good title to the property. See Berry, 57 So.3d at 145.

In opposing the motion for a summary judgment, the Stones presented no evidence tending to create a genuine issue of material fact, and they did not present a valid argument that AFC was not entitled to a judgment as a matter of law. Instead, they submitted articles and chapters from books on banking and money. For example, they submitted an excerpt from a booklet that originally had been distributed by the Public Information Center of the Federal Reserve Bank of Chicago but was no longer in print. Instead, the document stated, “Photo copies can be made available by mongues@myhome.net.” The booklet is titled Modern Money Mechanics, A Workbook on Bank Reserves and Deposit Expansion, and, as the introduction states, it describes “the basic process of money creation in a ‘fractional reserve’ banking system.” There are also excerpts from what appear to be economics textbooks and a dictionary of economic or banking terms. The Stones’ “evidence” fails to indicate that the foreclosure of the property was improper or that AFC did not have valid title to the property. Accordingly, we conclude that the trial court properly entered the summary judgment in favor of AFC on its ejectment claim.

We note that, on appeal, the Stones do not challenge the award of rental payments to AFC. Therefore, they have waived that issue. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

AFC filed a motion to dismiss Jon Stone from this appeal. In return, Jon Stone filed a “motion to strike” AFC’s motion to dismiss him from the appeal. For the reasons set forth earlier in this opinion, AFC’s motion to dismiss is granted; Jon Stone’s “motion to strike” is denied.

AFC has also filed a motion for damages, asserting that the Stones have brought a frivolous appeal. This court has jurisdiction under Rule 38, Ala. R.App. P., to determine whether an appeal is frivolous. “This rule vests the imposition of sanctions within the sound judicial discretion of the appellate court.” Gilbert v. Congress Life Ins. Co., 646 So.2d 592, 594 (Ala.1994).

In support of its motion, AFC contends that this appeal is an attempt by the Stones to delay AFC from obtaining possession of the property and that the Stones have used the court system as “a tool for harassment.” However, the Stones have a right to appeal from the judgment against them. Therefore, AFC’s request for sanctions against the Stones is denied.

The Stones have failed to demonstrate that the trial court erred or abused its discretion in this case. For the reasons set forth above, the judgment is affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

PITTMAN, J., recuses himself.

      . Federal Land Bank Association of North Alabama, FLCA, began using the name Alabama Farm Credit, ACA, on January 1, 2010. For ease of reference, we refer to the entity as AFC.

      . After the documents were provided, the Stones sued AFC, its officers, and its attorneys in federal court. The record does not indicate the status of that case.


author: PER CURIAM. PITTMAN, Judge,

text:
    MOBILE COUNTY PERSONNEL BOARD v. MOBILE AREA WATER & SEWER SYSTEMS.
    2120254.
    Court of Civil Appeals of Alabama.
    July 12, 2013.
    Certiorari Denied Aug. 16, 2013 Alabama Supreme Court 1121242.

      Arthur J. Madden III, Mobile, for appellant.
    Jaqueline M. McConaha of The Atchison Firm, P.C., Mobile, for appellee.
   PER CURIAM.

In 2011, the Mobile Area Water & Sewer Systems (“MAWSS”), an entity subject to the jurisdiction of the Mobile County Personnel Board (“the Mobile Board”), terminated the employment of Jevon Mil-ner based on (1) his allegedly having left the wastewater-treatment plant to which he had been assigned without the knowledge and permission of his supervisor on approximately 38 occasions and (2) his allegedly having used his employee badge to obtain gasoline from a MAWSS warehouse without authorization on a number of occasions. Milner appealed from MAWSS’s decision to terminate his employment to the Mobile Board. Following a hearing, the Mobile Board reinstated Milner subject to a 74-day suspension without pay. MAWSS then appealed from the Mobile Board’s decision to the Mobile Circuit Court (“the trial court”). The Mobile Board appeared in the appeal, and MAWSS moved to dismiss the Mobile Board as a party on the ground that, under this court’s holding in City of Dothan Personnel Board v. DeVane, 860 So.2d 881 (Ala.Civ.App.2002), the Mobile Board lacked standing to participate as a party in an appeal from one of its own decisions. The trial court dismissed the Mobile Board and entered a judgment vacating the Mobile Board’s decision and reinstating MAWSS’s decision to terminate Milner’s employment. The Mobile Board timely appealed, and the supreme court transferred the appeal to this court. We dismiss the appeal.

“ ‘The issue of standing presents a pure question of law, and the trial court’s ruling on that issue is entitled to no deference on appeal.’ ” Ex parte Howell Eng’g & Surveying, Inc., 981 So.2d 413, 418 (Ala.2006) (quoting Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 953 (Ala.2004)). In DeVane, supra, the City of Dothan (“the City”) had terminated the employment of Stanley E. DeVane, and DeVane had appealed from that decision to the City of Dothan Personnel Board (“the Dothan Board”). The Dothan Board had affirmed the decision of the City to terminate DeVane’s employment, and DeVane had then appealed from the Dothan Board’s decision to the Houston Circuit Court. The Houston Circuit Court had reversed the decision of the Dothan Board, and the Dothan Board had appealed from the decision of the Houston Circuit Court to this court. This court held that the Dothan Board lacked standing to appeal from the decision of the Houston Circuit Court and dismissed its appeal. In pertinent part, this court stated:

“DeVane and the City were clearly the only proper parties to DeVane’s appeal to the [Dothan] Board of the City’s termination of his employment; the [Do-than] Board could not be a party to DeVane’s appeal to the [Dothan] Board of the City’s termination of his employment. To allow the [Dothan] Board to become a party in an appeal of its decision to the circuit court would allow the [Dothan] Board to abdicate its function as an impartial quasi-judicial fact-finder in a dispute such as the one at issue in this appeal. If the [Dothan] Board were deemed to be a party in this matter, the [Dothan] Board would function as a litigant, taking an adversarial position to a party that had appeared before it in a quasi-judicial proceeding. In that situation, the [Dothan] Board would be advocating the position of the other party to that same quasi-judicial proceeding. There are no provisions in the [local act creating the Dothan Board] that allow the [Dothan] Board to take an adversarial role against a member of the classified-service system or to advance the position of one of the parties that has appeared before it.
“After receiving evidence and hearing the arguments of the counsel for the parties that appeared before it, the [Dothan] Board issued a decision regarding the validity of the City’s termination decision. It cannot be said that the [Do-than] Board had any legally protected interest in the outcome of the dispute before it in the quasi-judicial proceeding, that is, in the dispute between the City and DeVane over the propriety of the City’s termination of DeVane’s employment. After considering DeVane’s and the [Dothan] Board’s arguments and the law from this and other jurisdictions, we conclude that the [Dothan] Board, after acting in its quasi-judicial capacity in hearing and deciding DeVane’s appeal, could not interject itself as a party to later proceedings in this same matter; we also conclude that the [Dothan] Board did not have a legal interest in defending or maintaining its decision upholding DeVane’s termination. The [Dothan] Board did not have a ‘cognizable interest in the outcome of [DeVane’s termination] proceeding.’ Board of County Comm’rs of Washington County, Maryland v. H. Manny Holtz, Inc,, 60 Md.App. [133] at 141, 481 A.2d [513] at 517 [(1984)]. It follows, then, that the trial court’s reversal of the [Dothan] Board’s decision did not harm a legally protected right of the [Dothan] Board, and, therefore, that the [Dothan] Board has no standing in this matter. See State v. Property at 2018 Rainbow Drive, [740 So.2d 1025, 1027-28 (Ala.1999)].”

860 So.2d at 891-92.

In the present case, the Mobile Board, like the Dothan Board in DeVane, was acting in a quasi-judicial capacity when it heard and decided Milner’s appeal from MAWSS’s decision to terminate Mil-ner’s employment. Thus, under the hold-tog in DeVane, the Motóle Board did not have standing to participate as a party in MAWSS’s appeal to the trial court from the Mobile Board’s decision.

The Mobile Board tries to distinguish DeVane from the present case based on the first sentence of Section 32 and the first sentence of Section 84 of the local act (“the Mobile local act”) creating the Mobile Board. The first sentence of Section 32 authorizes the Mobile Board to employ counsel to represent it “if any person shall fail or refuse to comply with the lawful orders or directions of the [Mobile] Board.” The first sentence of Section 34 provides that “[o]rders of the ... [Mobile] Board may be enforced by mandamus, injunction, quo warranto, or other appropriate proceedings in a court of competent jurisdiction.” However, the second sentence of Section 34 provides that “[a]ny person directly interested, within 14 days, may appeal to the Circuit Court of Mobile County from any order of the [Mobile] [B]oard.... ” It cannot be plausibly argued that MAWSS’s exercising its right to appeal from a decision of the Mobile Board under Section 34 constituted a “refusal” to comply with the a lawful order of the Mobile Board. Moreover, Section 34 does not contain any language expressly authorizing the Mobile Board to participate as a party in an appeal from one of its own decisions. Indeed, the Mobile Board has not cited any provision of the Mobile local act expressly authorizing the Mobile Board to participate as a party in an appeal from one of its own decisions. Consequently, we conclude that DeVane constitutes controlling authority in the present case.

Based on our holding in DeVane, we conclude that the Mobile Board lacked standing to participate as a party in MAWSS’s appeal from the Mobile Board’s own decision and that the Mobile Board lacks standing to prosecute the present appeal. Accordingly, we dismiss the Mobile Board’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and THOMAS, MOORE, and DONALDSON, JJ., concur.

PITTMAN, J., concurs in the result, with writing.

PITTMAN, Judge,

concurring in the result.

I continue to adhere to my dissent in City of Dothan Personnel Board v. DeVane, 860 So.2d 881, 892 (Ala.Civ.App.2002) (Pittman, J., dissenting); however, because the main opinion in DeVane is binding precedent, I concur in the result in the present case.