author:
BOLIN, Justice.
      SHAW, Justice BRYAN, Justice MOORE, Chief Justice MURDOCK, Justice

text:
    Ex parte U.S. BANK NATIONAL ASSOCIATION and U.S. Bancorp. (In re Sterne, Agee & Leach, Inc. v. U.S. Bank National Association and U.S. Bancorp).
    1120904.
    Supreme Court of Alabama.
    Feb. 7, 2014.

      Larry B. Childs and Christopher A. Driskill of Waller Lansden Dortch & Davis, LLP, Birmingham, for petitioners.
    J. Michael Rediker, Peter J. Tepley, Reginald L. Jeter, and Benjamin M. Slaughter of Haskell Slaughter Young & Rediker, LLC, Birmingham, for respondent.
   BOLIN, Justice.

U.S. Bank National Association and U.S. Bancorp (hereinafter collectively referred to as “U.S. Bank”) seek a writ of mandamus ordering the Jefferson Circuit Court to dismiss the malicious-prosecution case filed against them by Sterne, Agee & Leach, Inc. (“Sterne Agee”), that arose out of a lawsuit prosecuted by U.S. Bank entirely in the State of Washington.

Facts and Procedural History

In 2002, Sterne Agee, a Delaware corporation with headquarters in Alabama and offices in Seattle, Washington, acted as the underwriter in Washington for securities offered by a Washington business entity. Under the Washington State Securities Act, Sterne Agee was a “seller” of the securities. In 2004, in federal district court in Washington, U.S. Bank sued Sterne Agee, among others, alleging that the defendants had violated the Washington State Securities Act through a series of material omissions in the securities offering. U.S. Bank obtained default judgments or entered into settlement agreements with all the defendants except Sterne Agee. In 2006, U.S. Bank’s claims against Sterne Agee proceeded to trial. The trial court granted Sterne Agee’s motion for a judgment as a matter of law. U.S. Bank appealed, and the United States Court of Appeals for the Ninth Circuit vacated the federal district court’s order and remanded the case to the federal district court. Following a second trial in 2009, the federal district court entered a judgment in favor of Sterne Agee. U.S. Bank appealed, and the Court of Appeals for the Ninth Circuit affirmed the judgment in 2011.

On July 1, 2011, Sterne Agee sued U.S. Bank in the Jefferson Circuit Court, alleging malicious prosecution arising out of the lawsuit prosecuted by U.S. Bank in Washington. The case was removed to the United States District Court for the Northern District of Alabama, which subsequently remanded the case to Jefferson Circuit Court. On January 31, 2013, U.S. Bank filed a motion to dismiss, arguing that under Alabama’s choice-of-law rules applicable when two or more jurisdictions have an interest in the outcome of a dispute, Alabama would apply the law of the state where the injury occurred. Because this is a malicious-prosecution action, U.S. Bank argued, the injury was forcing U.S. Bank to defend an allegedly malicious securities action in Washington state and the injury thus occurred in Washington state. On April 11, 2013, the circuit court denied U.S. Bank’s motion to dismiss. On April 16, 2013, U.S. Bank moved the circuit court to certify its order for a permissive interlocutory appeal pursuant to Rule 5, Ala. RApp. P. On April 16, 2013, the circuit court denied the motion. On May 1, 2013, U.S. Bank petitioned this Court for a writ of mandamus.

Standard of Review

U.S. Bank sought to have the circuit court certify the conflict-of-laws issue for a permissive appeal pursuant to Rule 5, Ala. R.App. P. Rule 5 allows for an appeal of an interlocutory order involving a controlling issue of law as to which there is substantial ground for difference of opinion when an immediate appeal would materially advance termination of the litigation and would avoid protracted and expensive litigation. This Court has allowed permissive appeals to address conflict-of-laws situations where the trial court has certified the issue for permissive appeal under Rule 5. See, e.g., Precision Gear Co. v. Continental Motors, Inc., 135 So.3d 953 (Ala.2013); Fitts v. Minnesota Min. & Mfg. Co., 581 So.2d 819 (Ala.1991).

In the present case, the circuit court refused to certify the conflict-of-laws issue for a permissive appeal. We recognize that a certification allowing a party to seek a permissive appeal under Rule 5(a) is discretionary with the trial court. Ex parte Burch, 730 So.2d 143 (Ala.1999). In Ex parte Burch, we treated a mandamus petition addressed to a trial court’s denial of a motion in limine as a petition seeking a permissive appeal. Even though the petitioner in Burch had not asked the trial court to certify the issue for permissive appeal, the transcripts from the hearing on the motion in limine revealed the trial court’s belief that this Court’s resolution of the motion in limine was important to materially advance the litigation. We note that here the trial court stayed the taking of depositions until this Court ruled on the mandamus petition.

In Ex parte Liberty National Life Insurance Co., 825 So.2d 758 (Ala.2002), three of the eight sitting Justices agreed that mandamus would lie to direct a trial court to certify an interlocutory order for permissive review when the trial court had refused to do so upon a showing that the court had clearly exceeded its discretion, a showing not apparent on the face of the complaint in that case. Two Justices wrote separately to explain their belief that a Rule 5 certification was entirely discretionary “in the [trial] judge’s opinion,” Rule 5(a), Ala. R.App. P., and that an appellate court could not force a trial judge to hold any certain opinion. In his special writing, Justice Harwood wrote that appellate courts should resist asserting mandamus power to compel certification of an interlocutory order for permissive appeal. He noted that it would be a truly rare situation in which it would be appropriate for this Court to require certification of an issue of compelling importance, “comparable at the State level to ‘a controlling issue of national significance,’ ” and he cited Fernandez-Roque v. Smith, 671 F.2d 426, 431 (11th Cir.1982), a case that involved deportation, jurisdiction, and a foreign forum. 825 So.2d at 768-69 (Harwood, J., concurring specially). However, U.S. Bank is not seeking mandamus to compel the circuit court to certify the conflict-of-laws issue for permissive appeal. Instead, U.S. Bank seeks mandamus as its only remedy to review the conflict-of-laws issue raised in its motion to dismiss because its certification to seek permissive appeal has been denied and because this Court and the Court of Civil Appeals have granted mandamus review in cases involving conflict-of-laws issues. See Ex parte Exxon Corp., 725 So.2d 930 (Ala.1998), and Batey & Sanders, Inc. v. Dodd, 755 So.2d 581 (Ala.Civ.App.1999), respectively.

In Ex parte Exxon, supra, this Court held that a mandamus petition is an appropriate method by which to seek review of a trial court’s misapplication of conflict-of-laws analysis in a class-action certification. Although the Court in Exxon recognized the well settled principle that mandamus is a proper tool by which to challenge certification of a class action, it also recognized that, in determining whether there is a common question of law for class-certification purposes, Alabama will determine the rights of an injured party according to the law of the state where the injury occurred.

In Batey & Sanders, supra, an employee sued his employer seeking worker’s compensation benefits; he also sought damages for an alleged retaliatory discharge for seeking worker’s compensation benefits. The employer had an office in Alabama and one in Georgia, and it hired the employee to work out of its Georgia office. The trial court originally dismissed the employee’s retaliatory-discharge claim but later reinstated it. The employer petitioned this Court for a writ of mandamus, and we transferred the case to the Court of Civil Appeals. The Court of Civil Appeals held that under the rule of lex loci delicti the law of Georgia governed the employee’s tort claim of retaliatory discharge because his employment had been terminated in Georgia. The Court of Civil Appeals stated that, “[b]ecause the wrong complained of occurred in Georgia, the law of Georgia applies,” and it granted the petition and ordered the trial court to dismiss the retaliatory-discharge claim because Georgia law does not recognize a cause of action for retaliatory discharge. 755 So.2d at 583.

This Court has held that a writ of mandamus is an appropriate means by which to review the following: subject-matter jurisdiction, Ex parte Johnson, 715 So.2d 783 (Ala.1998); standing as a component of subject-matter jurisdiction, Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007); nonjusticiability as a component of subject-matter jurisdiction, Ex parte Valloze, 142 So.3d 504 (Ala.2013); personal jurisdiction, Ex parte Duck Boo Int’l Co., 985 So.2d 900 (Ala.2007); immunity, Ex parte Butts, 775 So.2d 173 (Ala.2000); failure to exercise due diligence in identifying, before expiration of the statute of limitations, a fictitiously named defendant as the party to be sued, Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594 (Ala.2005); a denial of a motion for a change of venue when venue has been challenged as improper, Ex parte Daniels, 941 So.2d 251 (Ala.2006); a denial of a motion to dismiss where the doctrine of forum non conve-niens is applicable, Ex parte Kia Motors America, Inc., 881 So.2d 396 (Ala.2003); a refusal to enforce an outbound forum-selection clause when the issue is presented in a motion to dismiss, Ex parte Bad Toys Holdings, Inc., 958 So.2d 852 (Ala.2006); class certification, Ex parte Caremark RX, Inc., 956 So.2d 1117 (Ala.2006); a motion to dismiss an action based on abatement, Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010); the grant of a motion adding a real party in interest, Ex parte Tyson Foods, Inc., 146 So.3d 1041 (Ala.2013); the availability of a jury trial, Ex parte BancorpSouth Bank, 109 So.3d 163 (Ala.2012); a ruling on a motion to dismiss a counterclaim that was a compulsory counterclaim in a previous action, Ex parte Cincinnati Ins. Co., 806 So.2d 376 (Ala.2001); rulings on discovery motions where a privilege is disregarded, when discovery orders the production of patently irrelevant or duplicative documents such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may be obtained by the requesting party, when the court imposes a sanction effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that the outcome is all but determined and the petitioner would merely be going through the motions of a trial to obtain an appeal, or when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error, Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810 (Ala.2003); denial of a motion objecting to the appointment of a special master, Ex parte Alabama State Pers. Bd., 54 So.3d 886 (Ala.2010); grant of a motion to set aside previous supersedeas bond amount, Ex parte Mohabbat, 93 So.3d 79 (Ala.2012); indefinite stay of an action, Ex parte American Family Care, Inc., 91 So.3d 682 (Ala.2012); a trial court’s failure to comply with an appellate court’s instruction on remand, Ex parte Williford, 902 So.2d 658 (Ala.2004); ruling on denial of motion to admit an uncontested will to probate where a finding that the testator lacked testamentary capacity was not precluded by the appointment of a conservator, Toler v. Murray, 886 So.2d 76 (Ala.2004).

Although this list may seem to contradict the nature of mandamus as an extraordinary writ, we note that the use of mandamus review has essentially been limited to well recognized situations where there is a clear legal right in the petitioner to the order sought; an imperative duty upon the respondent to perform, accompanied by a refusal to do so; the lack of another adequate remedy; and properly invoked jurisdiction of the court. Those well recognized situations include making sure that an action is brought in the correct court (e.g., subject-matter jurisdiction and venue) and by the correct parties (e.g., personal jurisdiction and immunity), reviewing limited discovery rulings (e.g., patently irrelevant discovery), and reviewing erroneous decisions by a trial court where there is a compelling reason not to wait for an appeal (e.g., abatement). Here, the circuit court concluded that this action could be maintained when it is apparent on the face of the complaint that there is an obvious conflict-of-laws issue as to whether Alabama law or Washington state law applies. It would waste the resources of the court and the parties, and an appeal after a final judgment would be an inadequate remedy, where an action would be barred if the law of another state applied. We mention U.S. Bank’s attempt at a permissive appeal under Rule 5 only to emphasize that mandamus review is proper and not to indicate that a writ of mandamus is available in any action where a trial court has denied certification of an issue for permissive appeal. A determination of which state’s law applies is deserving of mandamus review when there is a true conflict between the laws of two states apparent on the face of the complaint and the application of one state’s law over the other would bar the action from proceeding.

It is well settled that

“[mjandamus is a drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 8) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court. Ex parte AmSouth Bank, N.A., 589 So.2d 715 (Ala.1991); Ex parte Day, 584 So.2d 498 (Ala.1991).”

Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993).

In the present case, we reiterate that it is apparent on the face of Sterne Agee’s complaint that there is a conflict-of-laws issue. The complaint alleges malicious prosecution based on a civil action brought by U.S. Bank in Washington state. Sterne Agee sets out in detail the course of the Washington action. Sterne Agee, in its complaint, recognizes that there is a conflict-of-laws issue and contends that Alabama law applies to the exclusion of Washington law because Alabama is the forum state, because Alabama applies the rule of lex loci delicti, and because Sterne Agee’s injury occurred in Alabama. In filing a motion to dismiss and subsequently seeking permission to appeal and then filing a petition for a writ of mandamus, U.S. Bank contends that, under the rule of lex loci delicti Washington law should apply to Sterne Agee’s malicious-prosecution claim because, it says, the injury occurred in Washington. Because U.S. Bank sought permissive appeal and was denied certification for permissive appeal by the circuit court, a petition for a writ of mandamus is U.S. Bank’s only adequate remedy for the circuit court’s denial of its motion to dismiss based on conflict of laws.

In choosing to address U.S. Bank’s mandamus petition seeking review of the circuit court’s ruling on its motion to dismiss, we are cognizant that in order for the writ of mandamus to issue, U.S. Bank must have a “clear legal right” to the order of dismissal. Although the legal issue before us has not been definitively settled, this does not mean that mandamus relief is unavailable. In other words, the mere fact that a legal issue is debatable does not change the responsibility of this Court, as a “court of law,” to decide the law and provides no basis for denying relief. We find the following persuasive:

“The general statement is made: ‘That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld.’ ... It is evident that this statement is too general. There are many cases where the right is disputed, and where the ultimate right depends upon questions of law which may not have been definitely settled, where the writ will issue. If the right be made clear by proof ..., and the case is one where the party is without adequate remedy[,] mandamus may issue.... Can it be said ... that the remedy will be denied simply because certain questions of law may arise that are not clearly and definitely settled?”

2 W.F. Bailey, A Treatise on the Law of Habeas Corpus and Special Remedies 801 (1918).

One federal court has explained:

“The dissent argues that mandamus lies only to compel clear, mandatory duties, so that to the extent we find the state law issue unclear, the availability of mandamus relief is called into question. This argument fails, however, for the limitation of mandamus remedies to refusals to perform clear, mandatory duties is not intended to forestall judicial review of difficult legal issues, but primarily to prohibit intrusion on, discretionary functions.

Georgevich v. Strauss, 772 F.2d 1078, 1093 (3d Cir.1985) (emphasis added; citation omitted).

The considerable research and reflection provided by the Oregon Supreme Court in State ex rel. Maizels v. Juba, 254 Or. 323, 460 P.2d 850 (1969), is helpful:

“The issue thus drawn is whether, where there is no dispute in the facts, mandamus will lie to decide in a certain way an especially complicated question of law, the answer to which is in extreme doubt and the solution of which requires the use of legal judgment and acumen. The Oregon statute on mandamus[,] ORS 34.110, is as follows:
“ ‘A writ of mandamus may be issued to any inferior court, ... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, ... but though the writ may require such court, ... to exercise its ... judgment, or proceed to the discharge of any of its ... functions, it shall not control judicial discretion. The writ shall not be issued ... where there is a plain, speedy and adequate remedy in the ordinary course of the law.’
“The statements of this court in its decisions concerning the use of mandamus have been fairly uniform. Generally, the court has said that when the facts are not in dispute and there is a clear rule of law requiring the matter to be decided in a certain way, mandamus will lie. It has also said that mandamus will not lie to control the exercise of discretion or judgment. While, at times, as previously demonstrated, the court has refused the use of mandamus because of difficult legal problems being involved, more frequently it has used the writ to decide problems where the law was far from clear and where the exercise of legal judgment was required for a solution. As an illustration, this court has often used the writ to decide difficult questions of law involving the adequacy of substituted service of summons. State ex rel. Carroll v. Redding, 245 Or. 81, 418 P.2d 846 (1966); State ex rel. Pardee v. Latourette, 168 Or. 584, 125 P.2d 750 (1942); State ex rel. Hupp, etc., Corp. v. Kanzler, 129 Or. 85, 276 P. 273 (1929); State ex rel. Sullivan v. Tazwell, 123 Or. 326, 262 P. 220 (1927). The cases in which the court has so used mandamus are not limited to those testing the adequacy of substituted service of summons. See the following cases where difficult questions of law have been decided in the interpretations of statutes and the constitution: State ex rel. Public Welfare Commission v. Malheur County Court, 185 Or. 392, 203 P.2d 305, 307 (1949); State ex rel. Pierce v. Slusher, 119 Or. 141, 248 P. 358 (1926); City of Astoria v. Cornelius et al., 119 Or. 264, 240 P. 233 (1925); Peterson v. Lewis, 78 Or. 641, 154 P. 101 (1915); Crawford v. School District No. 7, 68 Or. 388,137 P. 217, 50 L.R.A., N.S., 147 (1913); State v. Ware, 13 Or. 380, 10 P. 885 (1886).
“It is plain, regardless of what this court has said to the contrary, that mandamus has repeatedly been used to require public officers, including inferi- or courts, to act in a certain way where the applicable law governing their actions was legitimately in dispute. There is ample authority elsewhere that justifies this use of the writ. F. Ferris, Extraordinary Legal Remedies § 210 (1926), has the following statement:
‘“Notwithstanding that courts will not grant mandamus to control discretion, the rule does not apply to preliminary questions of law. It applies only to the act to be commanded by the writ* The character of a purely preliminary question, though judicial, does not test the right to mandamus because the decision of such a question is a mere incident leading up to the main junction or act.’ (* footnotes omitted).
“In Poucher v. Teachers’ Retirement Board, 130 Misc. 896, 225 N.Y.S. 176, 178-179 (1927), the court used the following language:
‘The sole question, then, is one of law,....’
“‘... (R)espondent contends that mandamus will only lie where there is a clear legal right, and as an important question of law is involved, which admits of a reasonable doubt or controversy, the petitioner should be relegated to an action at law against the retirement board. There is no reason why difficult questionfs] of law cannot be determined upon this application, as well as in an action at law. The clear legal right referred to in the cases such as Matter of Whitman, No. 1, 225 N.Y. 1, 121 N.E. 479 [ (1918) ], means a right which is inferable as a matter of law from uncontroverted facts, regardless of the difficulty of the legal question to be decided.... ’
“For similar language, also see Stewart v. Wilson Printing Co., 210 Ala. 624, 627-628, 99 So. 92, 96 (1924); Robinson v. Enking, 58 Idaho 24, 31-32, 69 P.2d 603, 606 (1937); Eberhardt Construction Co. v. Board of Com’rs of Sedgwick County, 100 Kan. 394, 396, 164 P. 281, 282-283 (1917); Cahill v. Mayor and City Council of Baltimore, 173 Md. 450, 455, 196 A. 305, 307 (1937); Perkins v. Burks, 336 Mo. 248, 254, 78 S.W.2d 845, 848 (1934); Fooshee v. Martin, 184 Okl. 554, 557, 88 P.2d 900, 903 (1939); State v. Town Council South Kingstown, 18 R.I. 258, 266, 27 A. 599, 602, 22 L.R.A. 65 (1893). Finally, the following language is found in 55 C.J.S. Mandamus § 53 (1948):
“ ‘A “clear legal right, within the meaning of the rule under consideration, means a right clearly founded in, or granted by, law;* a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided_’ (* footnote omitted).
“It appears that much of the difficulty in the case law revolves around the use of the terms ‘discretion’ and ‘judgment’; i.e., in the case of a judicial officer, ‘judicial discretion’ as differentiated from ‘judicial judgment’ or ‘acting judicially.’ They have been confused and used interchangeably. ‘Discretion’ refers to the power or privilege to act unhampered by a legal rule. It describes a situation where a choice can be made among several courses of action, any one of which is legally permissible and not subject to review. In such a situation mandamus or any other method of review is inappropriate. The present case does not pose such a situation. Petitioner either is entitled to have the warrant quashed and his property returned or he is not. There is only one legally permissible answer. The exercise of ‘judgment’ means the formation of an opinion concerning something by exercising one’s mind upon it. Some courts, including this court, have, at times, used the terms interchangeably and, therefore, have erroneously said that mandamus will not lie to decide difficult questions of law because the exercise of judgment, judicial or official, was necessary for their solution. State ex rel. Ricco v. Biggs, 198 Or. 413, 422, 255 P.2d 1055, 38 A.L.R.2d 720 (1953); State ex rel. Coast Holding Co. v. Ekwall, 144 Or. 672, 681, 26 P.2d 52 (1933); and State ex rel. Harvey Malheur County Court, 54 Or. 2[2]5, 2[2]8, 101 P. 907, 103 P. 446 (1909).
“It is also apparent that in a mandamus context, ‘clear rule of law5 and ‘clear legal right’ have been used erroneously at times to describe a situation where there can be no dispute as to the proper legal theory rather than a situation where a right is inferable as a matter of law from uncontroverted facts. See Poucher v. Teachers’ Retirement Board, supra, and 55 C.J.S. Mandamus § 53 (1948). We are now satisfied that in an otherwise proper case, mandamus may be used to decide disputed and difficult questions of law.”

254 Or. at 327-31, 460 P.2d at 852-53.

This Court has stated:

“There remains for consideration but one question. It is, abstractly the most important in the case. It is also the most difficult. It is whether the secretary of state was under a duty to erase and expunge the alleged unauthorized entries from the house journal. That he was under such duty must be made to clearly appear before the writ of mandamus will lie against him in respect of it. If the duty exists, it is purely statutory. The secretary of state has no duties to perform except those imposed upon him by the constitution and statutes of the state. Mandamus is a conservative, not a creative, remedy. It enforces existing duties, but does not impose new duties. By it the officer may be coerced to an act which it was his duty to perform without it, but to no act as to which he was under no duty before its issuance. And the duty must be clear upon the statute. The rule as to the duty and the right to its performance is variously, and not always accurately, expressed in the adjudged cases. The right must be ‘certain and positive.’ Beaman v. Board, 42 Miss. 237 [ (1868) ]. The duty must be ‘clear, and if there be doubt, involving the necessity for litigation,’ the writ will not lie. Townes v. Nichols, 73 Me. 515 [ (1882) ]. There must be ‘a specific legal right and a positive duty.’ State v. Burnside, 33 S.C. 276, 11 S.E. 787 [ (1890) ]. ‘Duty must be specifically enjoined by law.’ Freon v. Carriage Co., 42 Ohio St. 30 [ (1884) ]. Right ‘must be clearly established. If right doubtful, writ will be refused.’ Mobile & O.R. Co. v. People, 132 Ill. 559, 24 N.E. 643 [ (1890) ]. ‘Writ will not issue, where there is a substantial doubt of respondent’s duty.’ State v. Buhler, 90 Mo. 560, 3 S.W. 68 [ (1887) ]. Will not be awarded when there is a doubt of the relator’s right to the relief sought.’ People v. Salomon, 46 Ill. 415 [ (1868) ] ‘Duty must be clearly enjoined by law.’ Draper v. Noteware, 7 Cal. 276 [ (1857) ]. ‘It must be clearly commanded by law.’ Puckett v. White, 22 Tex. 559 [ (1858) ]. ‘When the legal right is doubtful, writ will be denied.’ State v. Appleby, 25 S.C. 100 [ (1886) ]. Issued when there is a failure to perform ‘plain official duty’ (Maddox v. Neal, 45 Ark. 121 [ (1885) ]), not ‘when well founded doubt as to the alleged duty arises’ (People v. Johnson, 100 Ill. 537 [ (1881) ]; People v. Hatch, 38 Ill. 9 [ (1839) ]). ‘Where the validity of a judgment of conviction is doubtful, writ will not issue to enforce it.’ Rex v. Broderip, 5 Barn. & C. 239; Reg. v. Ray, 44 U.C.Q.B. 17. The act sought to be compelled, must be ‘clearly defined and enjoined by law.’ Glasscock v. Commissioner, 3 Tex. 51 [ (1848) ]. ‘The writ does not lie to compel a county judge to perform an act which the law does not specifically enjoin upon him as a duty resulting from his office.’ State v. Napier, 7 Iowa 425 [ (1858) ]. The duty must be either imposed upon the officer ‘by some express enactment, or necessarily result from the office he holds.’ Pond v. Parrot, 42 Conn. 13 [ (1875) ]. Officer must be ‘expressly authorized by law" to do the act. Chisholm v. McGehee, 41 Ala. 192 [ (1867) ]. ‘A clear specific legal right ’ to have the act performed must be shown. 3 Brick. Dig. p. 625.
“As we have said, some of the foregoing expressions are inaccurate or misleading. A doubt that may arise in the mind of the court in matter of law, as to the existence of the duty, will not, as some of the cases seem to hold, require or justify the denial of the unit. It is the court’s province and duty to solve all such doubts, and declare the duty as it finds it to be, after its misgivings as to the intent and meaning of the statute involved, or as to any other question of law, have been eliminated. Substantial doubt as to whether the facts of the particular case present the conditions upon which the officer is bound to act may, it would seem, justify or require a refusal of the writ. Of course, the doubts of the officer as to his duty are of no consequence. State v. Tarpen (Ohio) [43 Ohio St. 311,] 1 N.E. 209 [ (1885) ]. Again, the duty need not be ‘specifically enjoined’ or ‘expressly prescribed’ by law. The true rule in this connection, we apprehend, is that the duty must be imposed in terms by the statute, in cases like the one in hand, or must result therefrom by fair and reasonable construction or interpretation. It must appear from the statute in terms or by fair implication.”

State ex rel. Brickman v. Wilson, 123 Ala. 259, 280-82, 26 So. 482, 487-88 (1899) (some emphasis added).

In light of the foregoing, we now turn to the legal issue before, us.

Discussion

The principle that governs which state’s substantive law applies to tort claims in a conflict-of-laws analysis is well settled: “Lex loci delicti has been the rule in Alabama for almost 100 years. Under this principle, an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.” Fitts v. Minnesota Min. & Mfg. Co., 581 So.2d at 820. Accordingly, our review of the denial of the motion to dismiss this malicious-prosecution action is based upon the principle of lex loci delicti.

The parties agree that under the principle of lex loci delicti the governing law is the law of the jurisdiction where the injury occurred. The parties disagree, however, as to where an injury occurs for purposes of a malicious-prosecution claim. U.S. Bank argues that the injury in a malicious-prosecution action occurs in the state where the defense of the allegedly malicious prosecution occurred. It reasons that because “injury” is the last element of a cause of action for any tort, including malicious prosecution, the injury resulting from malicious prosecution occurs where the last event necessary to make the actor liable for the alleged tort takes place. In this case, it argues, the last event necessary occurred in Washington when the securities action was terminated in favor of Sterne Agee. Sterne Agee argues that because the injury suffered in a malicious-prosecution action is financial, the injury occurs where the financial harm was felt. In this case, it argues, the financial harm was felt, and thus the injury occurred, at its corporate headquarters in Alabama.

Unlike Alabama, Washington follows the “English rule” for malicious-prosecution claims, which requires a plaintiff to plead arrest or seizure of property. See Clark v. Baines, 150 Wash.2d 905, 84 P.3d 245 (2004). Because no arrest or seizure has occurred in this situation, U.S. Bank argues that, under Washington law, Sterne Agee cannot state a malicious-prosecution claim.

For the reasons below, we find that injury in a malicious-prosecution action occurs in the state where the allegedly malicious lawsuit was terminated in favor of the complaining party. Therefore, the principle of lex loci delicti requires that the law of the state in which the antecedent lawsuit was litigated governs a claim of malicious prosecution.

Alabama continues to follow the traditional view of the Restatement (First) of Conflicts of Law, as discussed in Fitts v. Minnesota Min. & Mfg. Co., supra, which looks to the lex loci delicti in tort claims, “in the state where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement (First) of Conflict of Laws § 377 (1934). This interpretation adheres to the holding of the seminal lex loci delicti case in Alabama, Alabama Great S. R.R. v. Carroll, 97 Ala. 126, 11 So. 803 (1892). In Carroll, the plaintiff resided in Alabama and was employed by an Alabama corporation as a brakeman on the corporation’s railroad. The plaintiff was injured when a link between two freight cars broke in Mississippi. However, two employees in Alabama had failed to inspect the link before the train left for Mississippi. Although Alabama law recognized a cause of action for injuries caused by the negligence of fellow employees, Mississippi law did not. Following the traditional rule, the Alabama Supreme Court applied the law of the place of the injury (Mississippi), despite the facts that the acts giving rise to the plaintiff’s injuries occurred in Alabama and that the plaintiff was employed in Alabama. The Court stated that negligence without injury will not support recovery.

“Up to the time [this] train passed out of Alabama no injury had resulted. For all that occurred in Alabama, therefore, no cause of action whatever arose. The fact which created the right to sue, the injury without which confessedly no action would lie anywhere, transpired in the State of Mississippi. It was in that State, therefore, necessarily that the cause of action, if any, arose; and whether a cause of action arose and existed at all or not must in all reason be determined by the law which obtained at the time and place when and where the fact which is relied upon to justify a recovery transpired.”

Carroll, 97 Ala. at 134, 11 So. at 806. Therefore, the place of injury is in the state where the “fact which created the right to sue” occurs.

In the present case, the “fact which created the right to sue” was the termination of the allegedly malicious lawsuit in favor of Sterne Agee, which occurred in Washington. Thus, the principle of lex loci delicti requires that Washington law govern Sterne Agee’s malicious-prosecution claim.

We note that in support of its “feel the financial harm” argument for malicious-prosecution claims, Sterne Agee cites several decisions from federal district courts, sitting in Alabama, holding that where the alleged injury is financial, the location where the financial injury was felt is determinative. Glass v. Southern Wrecker Sales, 990 F.Supp. 1344 (M.D.Ala.1998), appears to be the first time a federal court sitting in Alabama applied the “place where the financial injury was felt” analysis. In Glass, the purchaser of a tow truck, who was a resident of Alabama, sued a Georgia truck dealer alleging fraud after the frame of the tow truck purchased in Georgia broke while it was being driven in Alabama. The truck dealer argued that because the alleged misrepresentations occurred in Georgia, then Georgia law should apply. The federal court, sitting in diversity, applied the choice-of-law rules of Alabama, and, because Alabama applies the rule of lex loci delicti, “it is not the site of the alleged tortious act that is relevant, but the site of the injury, or the site of the event that created the right to sue.” 990 F.Supp. at 1347. The court stated:

“In examining other courts’ application of the lex loci delicti rule to fraud claims, the court has found that courts consistently conclude that the state where the injury occurred in a fraud claim is the state in which the plaintiff suffered the economic impact. See Management Science America, Inc. v. NCR Corp., 765 F.Supp. 738, 740 (N.D.Ga.l991)(examining cases from Indiana and Tennessee in determining that ‘[fjederal courts ... consistently have considered [fraud] to have been committed in the state where the economic loss occurred and not where the fraudulent misrepresentations were made.’); Steele v. Ellis, 961 F.Supp. 1458 (D.Kan.1997); Restatement of Conflict of Laws § 377 (1934). Therefore, the court will look to see in which state any alleged economic impact was felt.”

990 F.Supp. at 1348. The Glass court’s holding was limited to fraud claims, and that court recognized that it was not relying on Alabama caselaw in concluding that courts applying the principle of lex loci delicti in fraud claims look to the state in which the plaintiff suffered the economic impact. The other decisions cited by Sterne Agee in which federal courts sitting in Alabama applied the financial-harm analysis did not concern malicious prosecution and, likewise, did not rely on Alabama caselaw. See, e.g., Alabama Aircraft Indus., Inc. v. Boeing Co., Inc. (No. 2:11-CV-3577-RDP, March 20, 2013) (N.DAla. 2013) (not reported in F.Supp.2d) (fraud claim); Chambers v. Cooney (No. 07-0373-WS-B, Aug. 29, 2007) (S.D.Ala.2007) (not reported in F.Supp.2d) (tortious interference); APR, LLC v American Aircraft Sales, Inc., 985 F.Supp.2d 1298 (M.D.Ala.2013) (fraud and negligence); Reibling v. Thermo Credit, L.L.C. (In re Trinsic, Inc.) (Bankr.No. 07-10324, May 19, 2008)(Bankr.S.D.Ala.2008) (not reported in B.R.)(fraud and tortious interference); Re-nasant Bank v. Park Nat’l Corp. (No. 12-0689-WS-C, April 10, 2013) (S.D.Ala.2013) (not reported in F.Supp.2d)(fraud and tor-tious interference). These cases are distinguishable from the present case.

For a malicious-prosecution claim, the event creating the right to sue is not the expenditure of financial resources in order to defend a lawsuit. Such expenses would be made even if the antecedent lawsuit was ultimately terminated in favor of the defendant. It is the determination that such expenses were required to defend an allegedly malicious prosecution (by termination in favor of the complaining party) that creates the right to sue. See Barrett Mobile Home Transp., Inc. v. McGugin, 530 So.2d 730, 733 (Ala.1988) (identifying “termination favorable to the plaintiff’ as the last element required for a cause of action for malicious prosecution to accrue).

Alabama courts’ application of the principle of lex loci delicti to cases involving the tort of bad-faith failure to defend a lawsuit are more on point with the present case. Like malicious prosecution, bad-faith failure to defend is based on injury resulting from an antecedent lawsuit, and the injury often involves more than mere financial harm. In Lifestar Response of Alabama, Inc. v. Admiral Insurance Co., 17 So.3d 200 (Ala.2009), this Court applied Alabama law to a claim of bad-faith failure to defend a lawsuit filed in Alabama. In that case, Lifestar, an Alabama corporation with headquarters in New York, sued its insurer alleging negligence and bad faith based on the insurer’s failure to defend Lifestar in a lawsuit filed in Alabama that resulted in a $5 million default judgment against it. Although Lifestar undoubtedly “felt the financial harm” of the alleged failure to defend in New York, where its headquarters were located and the state from which it paid the judgment, this Court applied the principle of lex loci delicti and held that Alabama law applied because the alleged injury occurred in Alabama.

Similarly, in Twin City Fire Insurance Co. v. Colonial Life & Accident Insurance Co., 124 F.Supp.2d 1243 (M.D.Ala.2000), Colonial Life, a corporation headquartered in South Carolina, sued its insurer for bad-faith failure to defend a lawsuit filed in an Alabama state court by one of its employees, which resulted in Colonial Life’s having to pay a costly settlement. Although Colonial Life surely “felt the financial harm” at its headquarters in South Carolina, the District Court for the Middle District of Alabama held that under the principle of lex loci delicti Alabama law governed: “Colonial allegedly suffered injury because Defendants failed to defend Colonial against [the employee’s] claim in Alabama. Therefore, the court finds that Colonial suffered injury in Alabama. As a result, Alabama law governs Colonial’s tort claims.” 124 F.Supp.2d at 1248.

In short, Sterne Agee’s reliance on cases involving fraud and tortious interference in support of its argument is misplaced, and we decline to apply the “feel the financial harm” analysis to a malicious-prosecution claim. Like Lifestar and Twin City Fire Insurance Co., Sterne Agee’s malicious-prosecution claim is based on injury allegedly resulting from an antecedent lawsuit. Accordingly, the principle of lex loci delicti likewise requires that the governing law come from Washington, the state of the antecedent lawsuit.

Conclusion

The principle of lex loci delicti requires that the law of the state in which the antecedent lawsuit was terminated in favor of the complaining party governs a malicious-prosecution claim. Thus, Washington law governs Sterne Agee’s claim of malicious prosecution. Accordingly, U.S. Bank’s petition for writ for mandamus is granted, and the circuit court is ordered to dismiss Sterne Agee’s malicious-prosecution case.

PETITION GRANTED; WRIT ISSUED.

STUART, PARKER, MAIN, and WISE, JJ., concur.

SHAW and BRYAN, JJ., concur specially.

MOORE, C.J., and MURDOCK, J., dissent.

SHAW, Justice

(concurring specially).

I concur in the main opinion. I write specially to note the following.

It is undisputed that this Court has the authority, based on the Alabama Constitution and statute, to issue any writs necessary to give general superintendence and control of lower courts. Ala. Const.1901, Art. VI, § 140; Ala.Code 1975, § 12-2-7(3). As noted in the main opinion, there are numerous situations in which this Court exercises authority by mandamus to review interlocutory decisions that, if properly set aside, would terminate an action so as to avoid the waste and expense of further litigation.

The appellate courts of this State have, in the past, issued writs of mandamus to correct trial courts’ decisions on issues relating to the conflict of laws. Ex parte Exxon Corp., 725 So.2d 930 (Ala.1998), and Batey & Sanders, Inc. v. Dodd, 755 So.2d 581 (Ala.Civ.App.1999). Thus, the issuance of the writ in the instant case to direct the trial court on this conflict-of-laws issue treads no new ground.

Here, the correct application of conflict-of-laws principles requires the utilization of the law of the State of Washington. That law undisputedly results in the termination of this litigation. See respondent’s answer, at 29-30 (noting that Washington law “would bar a remedy” in this case). Given that our determination terminates the litigation in this action, that this Court has the power to issue writs of mandamus to supervise the trial courts, and that decisions on conflict-of-laws issues have been previously decided on mandamus review, I concur to issue the writ.

BRYAN, Justice

(concurring specially).

I write specially to emphasize my belief that mandamus is appropriate where, as here, “there is an obvious conflict-of-laws issue,” 148 So.3d at 1065, and the application of one state’s laws would completely bar the action. It would be an inexcusable waste of scarce judicial resources and of the parties’ resources to require a trial and possibly an appeal when it is clear that, under the doctrine of lex loci delicti, Washington law applies to bar the malicious-prosecution action filed by Sterne, Agee & Leach, Inc. See Fitts v. Minnesota Min. & Mfg. Co., 581 So.2d 819, 820 (Ala.1991) (“Under th[e] principle [of lex loci delicti ], an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.”).

MOORE, Chief Justice

(dissenting).

I respectfully dissent because I do not believe that U.S. Bank National Association and U.S. Bancorp have demonstrated a clear legal right to mandamus relief. I do not see how a party could have a clear legal right to relief when the issue presented is one of first impression. Making the alleged legal right even less clear is the fact that federal courts in Alabama have held that where, as here, the alleged injury is financial, jurisdiction is proper where the injury is felt. Glass v. Southern Wrecker Sales, 990 F.Supp. 1344, 1348 (M.D.Ala.1998); APR, LLC v. American Aircraft Sales, Inc. (No. 3:12cvl019-MHT, Feb. 19, 2013) (M.D.Ala.2013) (not reported in F.Supp.2d); Renasant Bank v. Park Nat’l Corp. (No. 12-0689-WS-C, April 10, 2013) (S.D.Ala.2013) (not reported in F.Supp.2d). The injury here was certainly felt in Alabama. Although these federal court decisions do not cite Alabama law and are not binding on this Court, they are evidence indicating that the legal right to relief in this case is less than clear.

MURDOCK, Justice

(dissenting).

Although I fully concur with what I consider to be an important part of the analysis offered by the main opinion, for the reasons described below I disagree with other parts of that analysis and, as a result, respectfully must disagree with the result reached.

This case addresses a petition for a writ of mandamus filed by U.S. Bank National Association and U.S. Bancorp (hereinafter collectively referred to as “U.S. Bank”). In the portion of the main opinion that discusses the “Standard of Review,” the majority observes:

“In choosing to address U.S. Bank’s mandamus petition seeking review of the circuit court’s ruling on its motion to dismiss, we are cognizant that in order for a writ of mandamus to issue, U.S. Bank must have a ‘clear legal right’ to the order of dismissal. Although the legal issue before us has not been definitively settled, this does not mean that mandamus relief is unavailable. In other words, the mere fact that a legal issue is debatable does not change the responsibility of this Court, as a ‘court of law,’ to decide the law and provides no basis for denying relief.”

148 So.3d at 1065.

I fully agree with the foregoing statement and the analysis that follows it. If the issue described in the above-quoted portion of the main opinion was the only potential obstacle to the issuance of the writ of mandamus, I would fully concur in issuing the writ.

In this case, however, there exists a second obstacle to granting the petition for a writ of mandamus: this is not one of the types of cases in which this Court allows mandamus review of an interlocutory trial court decision refusing to dismiss an action. As this Court has stated:

“‘Subject to certain narrow exceptions ..., we have held that, because an “adequate remedy” exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus.’ ”

Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 966 (Ala.2011) (quoting Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala.2002)). The “certain narrow exceptions” to this general rule include cases in which a trial court has failed to dismiss a claim or to enter a summary judgment where the issue is one of subject-matter jurisdiction, in personam jurisdiction, immunity, proper venue (whether venue per se or forum non conveniens under our rules of procedure or a “private” agreement as to venue in the form of a forum-selection clause), and a failure to substitute a named party for a fictitiously named party in a timely manner following the expiration of the applicable statute of limitations. As we explained in Ex parte DaimlerChrysler Corp., 952 So.2d 1082, 1089 n. 1 (Ala.2006):

“Th[e] general rule is not without exceptions. See, e.g., Ex parte Alloy Wheelsi Int’l, Ltd.], 882 So.2d [819,] 822 [ (Ala.2003) ] (‘One of the exceptions is the denial of a motion grounded on a claim of lack of personal jurisdic-tion_’); Ex parte Rizk, 791 So.2d 911, 912 (Ala.2000) (While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion for summary judgment grounded on a claim of immunity is reviewable by petition for writ of mandamus.’); and Ex parte Snow, 764 So.2d 531, 537 (Ala.1999) (noting that the denial of a summary-judgment motion is reviewable by a petition for a writ of mandamus when the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying fictitiously named defendants). See also [Ex parte] Integon Corp., 672 So.2d [497,] 499 [ (Ala.1995) ] (holding that a petition for a writ of mandamus is the proper method for challenging a forum non conveniens ruling)”

See also Ex parte Alamo Title Co., 128 So.3d 700, 716 (Ala.2013) (Murdock J., concurring specially) (emphasis omitted) (noting the exceptions for “immunity, subject-matter jurisdiction, in personam jurisdiction, venue, and some statute-of-limitations defenses”); Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000) (noting that the “question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus”); Ex parte Jackson, 780 So.2d 681, 684 (Ala.2000) (observing that “‘[t]he fact that a statute of limitations defense is applicable is not a proper basis for issuing a writ of mandamus, due to the availability of a remedy by appeal.’ [Ex parte Southland Bank,] 514 So.2d [954,] 955 [ (Ala.1987) ]-In a narrow class of cases involving fictitious parties and the relation-back doctrine, this Court has reviewed the merits of a trial court’s denial of a summary-judgment motion in which a defendant argued that the plaintiff’s claim was barred by the applicable statute of limitations.”); and Ex parte Kia Motors America, Inc., 881 So.2d 396 (Ala.2003) (involving a motion to dismiss based on an outbound forum-selection clause).

The present case does not fall within any of the foregoing exceptions to the general rule; instead, it involves a “choice-of-law” issue. Nonetheless, the main opinion arrives at the conclusion that mandamus review is, or should be, available. I disagree.

The present case involves a question as to which of two states’ law is applicable to the plaintiffs claim. This Court has never recognized an exception to the general rule that would permit interlocutory review of a trial court’s denial of a motion to dismiss or for a summary judgment for cases that turn on the resolution of such a “choice-of-law” issue. (Clearly, Ex parte Empire Fire & Marine Insurance Co., 720 So.2d 893 (Ala.1998), was not such a case.) In its discussion of the standard of review, the main opinion cites one decision from this Court that it contends provides a basis for such an exception to the general rule: Ex parte Exxon Corp., 725 So.2d 930 (Ala.1998). For the reasons explained below, I do not agree that Ex parte Exxon stands for this proposition; in fact, it is clearly distinguishable from the present case.

Put simply, Ex parte Exxon did not involve a trial court’s denial of a motion to dismiss or the denial of a motion for a summary judgment. It concerned a trial court’s certification of a class action. As the Ex parte Exxon Court noted: “A mandamus petition is the proper procedural tool to challenge the certification of a class action.” 725 So.2d at 931. A question of class certification is not before us in the present case.

Although the main opinion couples its citation to Ex parte Exxon with a citation to a second case, Batey & Sanders, Inc. v. Dodd, 755 So.2d 581 (Ala.Civ.App.1999), this latter case was decided by the Court of Civil Appeals, not this Court. As such, of course, Batey & Sanders is not binding on this Court. Neither is it persuasive.

Batey & Sanders was a workers’ compensation case. The opinion issued by the Court of Civil Appeals contains no acknowledgment of the general rule against mandamus review of the denial of a motion to dismiss or for a summary judgment, nor did the Court of Civil Appeals provide any explanation as to why or how it was able to circumvent the general rule in deciding Batey & Sanders as it did. I suggest that the Court of Civil Appeals simply overlooked the general rule and that, accordingly, Batey & Sanders provides no persuasive support for the result reached in the present case.

A closer look at the exceptions to the general rule against interlocutory mandamus review of the denial of a motion to dismiss or for a summary judgment appears to reveal that they involve questions as to whether the trial court that has declined to dismiss the action or to enter a summary judgment is a, or the, proper tribunal to decide the merits of the claims that will remain for adjudication in the wake of its decision. Where no court properly can adjudicate the merits of a claim, or where a claim ought to be, or ought to have been, tried on its merits in some different tribunal, mandamus review of the trial court’s decision to insist on adjudicating the merits of the claim has been granted by this Court. I see no reason to conclude that the time has come to recognize some additional exception that is not of the same character.

The question in the present case is, in essence, simply whether applicable law recognizes the cause of action at issue. The trial court may err in deciding this question, just as it may err in deciding an innumerable number of other legal questions that determine whether an action in a given case is cognizable or not. By answering the question here, we place ourselves on a slippery slope. On what principled basis, for example, do we distinguish between this case and a case in which a trial court must choose which of two Alabama statutes is applicable: one of which establishes a cause of action and one of which does not? On what basis do we grant mandamus review in this case, but deny mandamus review in a case in which the manner in which the interpretation of a single statute, or even a prior case, is dispositive of whether the plaintiff has a cognizable cause of action? In all of these circumstances can it not be said that the defendant is put to the effort and expense of a trial when it ought not to be? I see no principled distinction between the present case and any of these examples insofar as the adequacy of the remedy provided by an appeal following a trial and a final judgment. If “adequacy” is to be based solely on the fact that the defendant may have to endure the effort and expense of a trial when a particular ruling of the trial court could have ended the litigation, I would submit that we effectively will have abandoned the general rule against interlocutory appellate review of orders denying motions to dismiss or for a summary judgment. In so doing, we will have abandoned the virtues of a general rule that allows cases to “develop” before one of the many able trial judges of this State, with the ensuing possibility of a settlement or other final disposition in the trial court and instead permit litigants to appropriate prematurely the limited resources of this Court and the Court of Civil Appeals in cases where appellate review might otherwise become unnecessary.

This Court recently made the following statement regarding the prospect of expanding the number or type of cases in which we will conduct mandamus review of trial court decisions regarding discovery:

“ ‘Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court’s review of a petitioner’s grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order.’ ”

Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1226 (Ala.2009) (quoting Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (footnote omitted)). Nor can our judicial system afford immediate appellate review of the multitude of trial court orders denying motions to dismiss or for a summary judgment founded on an assertion of the failure of the plaintiff to have alleged a cognizable claim. We must let the trial courts be the trial courts and review their decisions as to the merits of cases only in due course.

Based on the foregoing, I respectfully must dissent.

      . In a few cases, we also have permitted mandamus petitions from a denial of a motion to dismiss or a motion for a summary judgment where a movant has sought to avoid a multiplicity of litigation.
      "The supreme court also has considered petitions for a writ of mandamus to review orders denying motions to dismiss based on the compulsory-counterclaim rule, see Ex parte Cincinnati Ins. Co., 806 So.2d 376 (Ala.2001), and on Ala.Code 1975, § 6-5-440, the abatement statute, see Ex parte J.E. Estes Wood Co., 42 So.3d 104 (Ala.2010), both of which are intended to avoid multiplicity of litigation.”

        Ex parte Ocean Reef Developers II, LLC, 84 So.3d 900, 905 (Ala.Civ.App.2011). See also Ex parte LCS Inc., 12 So.3d 55, 56 (Ala.2008) (“[A] petition for a writ of mandamus is an appropriate method by which to seek this Court’s review of the denial of a motion to dismiss predicated on the doctrine of res judi-cata.”). But see Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893 (Ala. 1998) (holding that an appeal from a final judgment would be an adequate remedy for the trial court’s erroneous denial of a motion to dismiss a counterclaim that should have been brought as a compulsory claim in an earlier action).
      In its discussion of the standard of review, the main opinion also notes several other categories of cases in which this Court has permitted mandamus relief; however, the cases cited do not address the denial by the trial court of a motion to dismiss a claim or for a summary judgment and do not recognize additional exceptions to the general rule that interlocutory appellate review of such rulings by an appellate court by way of a petition for a write of mandamus is not available.

      . As a preliminary matter, I note the main opinion’s observance of the fact that U.S. Bank did elect in this case to seek a certification by the trial court of a question for a permissive appeal pursuant to Rule 5, Ala. R.App. P., but that the trial court denied this request. I do not read this observation or any other reference to the trial court's denial of U.S. Bank’s attempt to obtain Rule 5 review as suggesting that, had U.S. Bank elected not to seek a Rule 5 certification, this fact would have barred it from mandamus review of an issue that otherwise would be appropriate for such review. This Court has never suggested that the availability of mandamus review of an issue otherwise appropriately reviewable by mandamus turns on whether a party first seeks a discretionary certification of that issue for a permissive appeal. See Ex parte Alamo Title Co., 128 So.3d at 714-22 (Murdock, J., concurring specially and joined by Main, J., the author of the main opinion).


source: Caselaw Access Project

author: SHAW, Justice. MOORE, Chief Justice

license: Public Domain

text:
    WHITNEY BANK v. Jerry O. LORANT and JOL, LLC.
    1121220.
    Supreme Court of Alabama.
    Feb. 7, 2014.
    Deborah Alley Smith, Daniel D. Sparks, and Jonathan M. Hooks of Christian & Small LLP, Birmingham, for appellant.
    Thomas A. Woodall of Sirote & Permutt, PC, Birmingham, for appellee Jerry O. Lorant.
   SHAW, Justice.

AFFIRMED. NO OPINION.

STUART, BOLIN, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent. Under Florida law, the judgment domesticated here was final, and the “‘validity and effect of a foreign judgment ... are to be determined by the law of the state in which [the judgment] was rendered.’ ” Teng v. Diplomat Nat’l Bank, 431 So.2d 1202, 1203 (Ala.1983) (quoting Morse v. Morse, 394 So.2d 950, 951 (Ala.1981)).

Rather than applying Florida law, the trial court used an Alabama procedural rule, namely, Rule 54(b), Ala. R. Civ. P., to determine that the Florida judgment was a nonfinal judgment. Although § 6-9-232, Ala.Code 1975, a portion of the Uniform Enforcement of Foreign Judgments Act, provides that a foreign judgment domesticated in Alabama “is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state,” the fact remains that a circuit court of this state is bound by its constitutional obligation to afford full faith and credit to the valid judgments of sister states.

This Court has explained:

“The Constitution of the United States, Article IV, Section 1, requires that ‘full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.’ A judgment, therefore, entered by the court of another state having jurisdiction over the subject matter and persons is entitled to full faith and credit in Alabama courts. [Citations omitted.]”

Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993), abrogated on other grounds by Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003). “[T]he duty to afford full faith and credit to judicial proceedings of our sister states ... is one consisting of both constitutional and statutory dimensions.” Package Exp. Ctr., Inc. v. Maund, 957 So.2d 1137, 1140 (Ala.Civ.App.2006)(citing U.S. Const., art. IV, § 1, and 28 U.S.C. § 1738). Moreover, “[i]f a judgment of a sister state is properly authenticated and filed with the circuit court, ... a presumption arises that the court rendering that judgment had jurisdiction to do so.” Greene, 628 So.2d at 351 (citing Teng, 431 So.2d at 1203). Accordingly, “the party challenging the judgment has the burden of asserting lack of jurisdiction and producing evidence to overcome the presumption.” Id. The burden, then, was on Jerry O. Lorant and JOL, LLC, to show that the trial court lacked jurisdiction, but their argument that the judgment was nonfinal because it did not dispose of all parties contradicts Florida law regarding the finality of judgments.

In Florida, a judgment is final when an order, judgment, or decree “constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). “That termination occurs when the trial court loses jurisdiction over the cause upon the expiration of the time limits set forth in Florida Rule of Civil Procedure 1.530(b).” Joannou v. Corsini, 543 So.2d 308, 310 (Fla.Dist.Ct.App.1989). Florida law regarding final judgments is distinguishable from federal and Alabama law regarding final judgments. Rule 54(b), Fed.R.Civ.P., deals with a judgment involving multiple claims:

“(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief — -whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”

Alabama has adopted a similar provision in Rule 54(b), Ala. R. Civ. P. According to this rule, a judgment that does not determine all claims presented in an action is not final.

Florida has not adopted such a rule. Hotel Roosevelt Co. v. City of Jacksonville, 192 So.2d 334, 338 (Fla.Dist.Ct.App.1966) (“[T]he Supreme Court of Florida ... has not yet seen fit to also adopt a counterpart to Rule 54(b), Federal Rules of Civil Procedure, dealing with judgments upon multiple claims.”); Rule 9.110, Fla. R.App. P. (providing that “partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case”); Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla.Dist.Ct.App.2008) (“[A] partial judgment is appealable as a final order under Florida Rule of Appellate Procedure 9.110(k) when the judgment resolves a distinct and severable cause of action, i.e., the remaining claims do not arise from a set of common facts or a single transaction.”). Therefore, when a Florida court deals with multiple claims, the test for the finality of a judgment is whether the judgment “marks the end of the judicial labor in the case, and nothing further remains to be done by the court to fully effectuate a termination of the cause as between the parties directly affected.” Hotel Roosevelt, 192 So.2d at 338. For example, the court in Hotel Roosevelt held that an order dismissing the third-party complaint filed by the City of Jacksonville was a final judgment and thus appealable, even though the underlying case remained pending in the circuit court. Id. Likewise, in 1977, the Florida Supreme Court considered whether a trial court’s order was final and thus appealable when issues between other parties still remained in the underlying case. State Farm Mut. Auto. Ins. Co. v. American Hardware Mut. Ins. Co., 345 So.2d 726, 728 (Fla.1977). The court determined that when the rights of the parties directly affected have been fully determined in the judgment, the judgment is final. Id.

Absent an “express direction for the entry of judgment” and the “express determination” by the trial court, pursuant to Rule 54(b), Ala. R. Civ. P., that “there is no just reason for delay,” Alabama does not recognize a judgment as final when other claims remain pending. In Florida, however, as long as a judgment has determined the rights of the directly affected parties, the judgment is considered final.

Lorant and JOL complain that Whitney Bank’s evidence regarding the finality of the Florida judgment was submitted for the first time on appeal or in the Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate; in light of Florida law, however, the only evidence a trial court needs to determine that the Florida judgment was final is the triple-certified copy of the Florida judgment that Whitney Bank filed in the Jefferson Circuit Court.

“If the judgment of a sister state is properly authenticated and produced at trial, as in the case at bar, it must be presumed that the court rendering the judgment had jurisdiction to do so. The burden is upon the party challenging the judgment to assert lack of jurisdiction and to produce evidence to overcome the presumption.”

Teng, 431 So.2d at 1203; see Republic Nat’l Bank of Dallas v. Howell, 456 So.2d 58, 59 (Ala.1984) (“[T]he properly authenticated judgment of the [sister state’s] court, that court having jurisdiction, is conclusive....”); see also Stallworth v. Stallworth, 272 Ala. 449, 454,131 So.2d 867, 871 (1961) (“Since the decree of the [sister state’s] court appears on its face to be a valid and binding decree ..., then full faith and credit must be given to the decree of the [sister state].”). Here, Lorant and JOL failed to carry their burden and to overcome the presumption in favor of the Florida judgment because they relied on the Alabama Rules of Civil Procedure, which have no legal effect on the finality of the Florida judgment. Cf. Canon Fin. Servs., Inc. v. National Voting Rights Museum & Inst., Inc., 57 So.3d 766, 769 (Ala.Civ.App.2010) (“[I]t is readily apparent that the Alabama court’s views concerning the efficacy of service of process in the underlying action under Alabama law are immaterial to whether full faith and credit should be extended to the judgment of the [sister state’s] court.”). Whitney Bank was not required to show that the Florida judgment disposed of all other parties and claims to demonstrate that the judgment was final, and Whitney Bank did not bear the burden of instructing the trial court to apply Florida law to determine the validity of the Florida judgment.

“[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.” Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996). “An appellate court may affirm the judgment of the trial court when the trial court has reached the right result for the wrong reason.... However, this rule should not apply where the “wrong reason’ prevented a party from properly presenting his case or prejudiced his rights.” Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 796 (Ala.2007). This Court “ ‘can affirm a judgment if we disagree with the reasoning of the trial court in entering the judgment, as long as the judgment itself is proper.”’ Verchot v. General Motors Corp., 812 So.2d 296, 305 (Ala.2001) (quoting Progressive Specialty Ins. Co. v. Hammonds, 551 So.2d 333, 337 (Ala.1989)). Here, the trial court’s vacation of the domesticated Florida judgment was not proper and is not due to be affirmed. Had the trial court recognized its constitutional and statutory duty to afford full faith and credit to the Florida judgment, it would have discovered that the Florida judgment was final, notwithstanding the arguments made to the trial court by the parties. Evidence that the Florida judgment did not dispose of all the defendants was simply immaterial to the determination whether the judgment was final under Florida law. Therefore, Whitney Bank timely presented the trial court with evidence indicating that the Florida judgment was final.

In light of the foregoing, I would reverse the order vacating the Florida judgment and remand this case for the trial court to reevaluate the finality of the Florida judgment according to Florida law in accordance with the doctrine of full faith and credit.

      . The trial court's order vacating the domesticated judgment stated: "Rule 54(b) of the Alabama Rules of Civil Procedure requires that a final judgment adjudicate all the claims, rights and liabilities of all the parties. It further provides that judgment against less than all parties be rendered 'only upon an express direction for the entry of judgment.’ The Florida judgment submitted for domestication provides no such satisfaction of that requirement and therefore is not final under Alabama law.”

      . However, although this issue is not implicated here, a statute of a sister state that is clearly against public policy in Alabama will not be recognized here. See Pacific Emp’rs Ins. Co. v. Industrial Accident Comm’n of California, 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939) ("[Tjhe very nature of the federal union of states, to which are reserved some attributes of sovereignty, precludes resort to the full faith and credit clause as the means for compelling a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”); Monarch Refrigerating Co. v. Faulk, 228 Ala. 554, 557, 155 So. 74, 76 (1934) ("[I]t is not always obligatory, either on the ground of comity or duty, that one state give effect to the judgment of another, when to do so would result in having its own law overridden.”).


author: PITTMAN, Judge.

text:
    O.Y.P. v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN RESOURCES. O.G.B. v. Lauderdale County Department of Human Resources.
    2120850 and 2120875.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2014.

      Charlie A. Bottoms, Jr., Florence, for appellant O.Y.P.
    Elizabeth G. Messer of Gonce & Messer, Attorneys at Law, Florence, for appellant O.G.B.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PITTMAN, Judge.

OY.P. (“the mother”) and O.G.B. (“the father”) appeal separately from an order of the Lauderdale Juvenile Court finding that reasonable efforts had been made by the Lauderdale County Department of Human Resources (“DHR”) to finalize the permanency plan regarding their child, M.Y. (“the child”), which recommended termination of their parental rights and adoption by the child’s current foster parents. We dismiss the appeals as being from a nonfinal judgment.

DHR filed a petition for custody of the child on June 24, 2010. DHR also filed a custody affidavit and a request for a pickup order for the child on that date. The juvenile court signed a pickup order for the child and, following a shelter-care hearing, transferred pendente lite custody of the child to DHR. A court appointed special advocate was appointed to represent and protect the child’s best interests. On October 4, 2010, the juvenile court entered an order finding the child dependent.

On June 26, 2012, the juvenile court entered an order approving the permanency plan recommending termination of parental rights and adoption by the current foster parents. On September 14, 2012, the mother filed a motion requesting that the juvenile court award her money for the purpose of translating from Spanish to English a report regarding a home study that had been completed on her home in Guatemala; the juvenile court granted that request. On December 14, 2012, the juvenile court entered a judicial-review order stating that it had reviewed the child’s situation and that, based on a court report prepared by DHR and dated December 13, 2012, reasonable efforts toward reunification had been made and the most appropriate plan was termination of parental rights and adoption by the current foster parents. On June 27, 2013, the juvenile court entered a permanency-hearing order finding that reasonable efforts had been made by DHR to finalize the permanency plan of termination of parental rights and adoption by the current foster parents. The mother filed a notice of appeal (appeal no. 2120850) on July 2, 2013, regarding the June 27, 2013, order. The father filed a notice of appeal (appeal no. 2120875) on July 11, 2013. The appeals were consolidated by this court.

Both the mother and the father argue on appeal, among other things related to the June 27, 2013, order, that the juvenile court erred in approving DHR’s permanency plan of termination of parental rights with adoption of the child.

“Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. ‘“Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.’” Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007) (quoting McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004)). ‘The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.’ Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App. 1979)). ‘[A] final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ. App.1986)).”

Butler v. Phillips, 3 So.3d 922, 925 (Ala.Civ.App.2008).

In Ex parte F.V.O., 145 So.3d 27, 32 (Ala.2013), the Alabama Supreme Court determined that orders entered by the Coffee Juvenile Court after a dispositional-review hearing in a dependency case were nonfinal judgments. In that case, the Coffee Juvenile Court had approved changing the permanency plan to adoption. 145 So.3d at 28. The supreme court determined that the announcement of a new permanency plan “was in the nature of an administrative matter and did not of itself actually constitute an adjudication of any right of the mother from which an appeal would lie.” 145 So.3d at 30. In the present case, the appeals of the mother and the father are taken from a permanency-hearing order entered on June 27, 2013; that order merely continued the permanency plan that had been previously approved and instituted on June 26, 2012. In accordance with F.V.O., the determination in the June 27, 2013, order was “in the nature of an administrative matter” and, as argued by DHR, did not constitute an adjudication of the rights of the mother or the father from which an appeal would lie. We therefore dismiss the appeals of the mother and the father as being from a nonfinal judgment.

2120850 — APPEAL DISMISSED.

2120875 — APPEAL DISMISSED.

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

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


author: MOORE, Judge.

text:
    C.L.W. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120934.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2014.

      Ronald Smith of Abies, Baxter, Parker & Smith, P.C., Huntsville, for appellant.
   MOORE, Judge.

C.L.W. appeals from a judgment of the Madison Juvenile Court (“the juvenile court”) purportedly determining that D.S. is the legal father of J.W. (“the child”), who was born on April 9, 2009. We dismiss the appeal.

Procedural History

On February 28, 2011, the Madison County Department of Human Resources (“DHR”) filed a petition alleging that the child was dependent. DHR alleged that the child’s mother is S.W. (“the mother”) and that the mother had identified her husband, C.L.W., as the father of the child. On June 7, 2011, the juvenile court entered separate judgments finding the child dependent and awarding custody of the child to DHR.

In October 2011, D.S. wrote a letter to the DHR caseworker for the child stating that he is the child’s father and requesting that DNA testing be done. On March 9, 2012, A.S. filed a motion requesting, among other things, that she and D.S. be added as parties, that she be awarded custody of the child, and that the juvenile court order DNA paternity testing. A.S. alleged, among other things, that she is the biological paternal grandmother of the child and that the child had lived with her from the time he was three months old until February 23, 2011, when DHR removed him from her home. On March 16, 2012, the juvenile court denied A.S.’s request that she and D.S. be allowed to intervene as parties; it also denied her request for custody. The juvenile court, however, granted the motion for DNA paternity testing. On April 19, 2012, the results of the DNA paternity testing were filed with the juvenile court; those results indicated that there was a 99.998% probability that D.S. was the biological father of the child. On June 7, 2012, A.S. filed a motion requesting that she be allowed to intervene, that D.S. be allowed to intervene, that D.S. be adjudicated as the child’s father, and that she be awarded custody of the child. On June 19, 2012, D.S. filed a motion to stay the proceedings and for appointment of counsel. He asserted that he was the biological father of the child. After a July 12, 2012, hearing, the juvenile court entered an order on July 30, 2012, stating:

“This cause came before the Juvenile Court of Madison County, Alabama, on July 12, 2012, for hearing on the issue of paternity of the ... child. It appears to the Court that there are conflicting statutory presumptions with regard to the child’s paternity. It further appears that [D.S.] is a necessary party to these proceedings; that he is entitled to representation by counsel; and that he has not been properly served process.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court as follows:
“1. The evidentiary hearing in this case is continued and will be held on August 28, 2012....
“2. Counsel for [DHR] shall perfect service of process on [D.S.].
“3. Christopher Messervy, Esquire, is appointed to represent [D.S.].”

On August 23, 2012, a hearing was held regarding the child’s paternity. On August 27, 2012, C.L.W. filed a motion to dismiss D.S. as a party and a brief in support of his position that his status as the child’s presumptive father precluded any paternity challenge. C.L.W. also requested that the juvenile court enter an order stating that he is the father of the child. On August 30, 2012, D.S. filed a motion requesting that an evidentiary hearing be held on whether C.L.W. is the presumed father of the child. On August 31, 2012, C.L.W. filed a motion in opposition to D.S.’s motion, asserting that a hearing had already been held on August 23, 2012.

On September 24, 2012, the juvenile court entered an order following a review hearing that had been held on September 7, 2012. The juvenile court maintained custody of the child with DHR, noted that C.L.W. is the “legally presumed father” of the child, and stated that DHR must explore relative resources after the juvenile court determines the child’s paternity.

Following a review hearing on March 8, 2013, the juvenile court entered an order on June 25, 2013, noting that “[a]lso present at the hearing were the following non-parties and representatives: ... [D.S.,] the father of [J.W.],” and ordering, among other things, that DHR was to retain temporary custody of the child and that a review hearing would be held in September 2013. On July 5, 2013, C.L.W. filed a motion to alter, amend, or vacate the June 25, 2013, order or, in the alternative, to clarify the juvenile court’s June 25, 2013, order to the extent that it “list[ed]” D.S. as the father of the child. On August 2, 2013, C.L.W. filed his notice of appeal.

Discussion

On appeal, C.L.W. challenges the juvenile court’s June 25, 2013, order to the extent that it adjudicated D.S. as the father of the child. C.L.W. argues that, as the husband of the mother, he is the legally presumed father of the child, see Ala. Code 1975, § 26-17-204(a)(l), and that, unless D.S. proves that C.L.W. no longer persists in his claim of paternity, D.S. cannot be declared the father of the child. See Ala.Code 1975, § 26-17-607; and Ex parte Presse, 554 So.2d 406 (Ala.1989). C.L.W. argues that the juvenile court erred in adjudicating D.S. to be the legal father of the child because the evidence proves that C.L.W. has consistently persisted in his claim of paternity. We need not address the substance of those arguments, however, because we conclude that the juvenile court did not adjudicate D.S. to be the legal father of the child.

The record shows that the juvenile court held a hearing on August 23, 2012, to take evidence regarding the paternity of the child. On September 24, 2012, the juvenile court identified C.L.W. as the legally presumed father of the child, but it expressly stated that it had not yet decided paternity. On June 25, 2013, the juvenile court entered an order following a review hearing. In listing the parties attending that review hearing, the juvenile court identified D.S. as “the father” of the child. However, the juvenile court did not refer further to the paternity dispute or otherwise indicate that it intended to resolve that dispute by listing D.S. as the father of the child. Given the significance of the matter, we conclude that the juvenile court did not intend to decide who was the legal father of the child in such an offhand manner and that its designation of D.S. as the father of the child in its review order was not so clear and certain as to constitute a judgment on the merits of the paternity dispute. See Carroll v. Buttram, 758 So.2d 1097 (Ala.1999) (holding that a judgment must be clear and unambiguous in order to stand). That controversy remains pending before the juvenile court without a final adjudication.

“Without a final judgment, this Court is without jurisdiction to hear an appeal.” Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). “When it is determined that an order appealed from is not a final judgment, it is the duty of the [appellate court] to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974). We, therefore, dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ„ concur.


text:
    Angela D. Nave WEISS v. Clayton J. NAVE, Jr.
    2120743.
    Court of Civil Appeals of Alabama.
    Feb. 14, 2014.

      Fulton S. Hamilton, Huntsville, for appellant.
    Tiffin M. Taylor, Huntsville, for appel-lee.
   MOORE, Judge.

Angela D. Nave Weiss (“the mother”) appeals from a judgment of the Madison Circuit Court (“the trial court”) insofar as that judgment declined to modify custody of one child, B.N.; declined to award post-minorify-educational support for another child, L.N.; declined to award pendente lite child support; and declined to establish an arrearage for past-due child support. She also challenges the trial court’s failure to hold a hearing on her post-judgment motion. We reverse.

Procedural History

On November 13, 2000, the mother and Clayton J. Nave, Jr. (“the father”), were divorced by a judgment of the trial court. Pursuant to the divorce judgment, the parties were awarded joint legal and physical custody of their minor children, M.N., L.N., and B.N. The parties alternated physical custody monthly. On November 5, 2004, the divorce judgment was modified by awarding the father legal and physical custody of M.N. and by ordering the mother to pay to the father monthly child support in the amount of $424.26 for the benefit of M.N. On September 15, 2009, the judgment was further modified by awarding the mother primary physical custody of L.N. and by ordering the father to pay to the mother monthly child support in the amount of $754 for the benefit of L.N.

On December 22, 2010, the mother filed a petition requesting that she be awarded the legal and physical custody of the parties’ minor daughter, B.N., that she be awarded child support for the benefit of B.N., and that the father’s child-support obligation for L.N. be modified. She also requested that she be awarded pendente lite custody of, and child support for, B.N. On March 25, 2011, the trial court awarded the mother pendente lite custody of B.N. On May 27, 2011, the father answered the mother’s petition.

After a trial, the trial court entered a judgment on December 27, 2012, denying the mother’s petition for modification of custody, denying her request for postmi-nority-educational support for L.N., and denying all other requested relief. On January 23, 2013, the mother filed a post-judgment motion in which she requested oral argument. The mother’s post-judgment motion was denied by operation of law on April 23, 2013. See Rule 59.1, Ala. R. Civ. P. On May 31, 2013, the mother filed her notice of appeal.

Discussion

On appeal, the mother argues that the trial court erred by failing to hold a hearing on her postjudgment motion. She also argues that the trial court erred by applying the custody-modification standard espoused in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in determining whether to modify custody of B.N., by declining to award postminority-educational support for L.N., by declining to award her pendente lite child support, and by declining to establish an arrearage for past-due child support. We find the first argument dispositive.

“Rule 59(g), Ala. R. Civ. P., provides that postjudgment ‘motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1) but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ This court has held that
“ ‘[generally, a movant who requests a hearing on his or her post-judgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221.’
“Dubose v. Dubose, 964 So.2d 42, 46 (Ala.Civ.App.2007); see also Staarup v. Staarup, 537 So.2d 56, 57 (Ala.Civ.App.1988) (‘[Rule 59(g) ] mandates that, when á hearing is requested on a motion for new trial, the hearing must be granted.’).
“[However], this court has recognized an exception to the general rule that the denial of a postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala.Civ.App.1998) (‘A trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g); however, that error is not necessarily reversible error.’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307-08 (Ala.Civ.App.1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala.Civ.App.1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:
“‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989). However, ‘[w]hen there is probable merit to the motion, the error cannot be considered harmless.’ Dubose, 964 So.2d at 46.”

Wicks v. Wicks, 49 So.3d 700, 701 (Ala.Civ.App.2010).

In her postjudgment motion, the mother raised the same substantive arguments that she now asserts on appeal. At least one of those arguments has probable merit. Because the parties shared joint physical custody of B.N., the best-interests standard for custody modification set forth in Ex parte Couch, 521 So.2d 987 (Ala.1988), not the McLendon standard, applied to the mother’s petition to modify custody of B.N. The trial court expressly stated in its judgment that it used the McLendon standard when deciding whether to modify custody of B.N. That error probably prejudiced the substantial rights of the mother. Hence, the trial court committed reversible error by not holding a hearing on the mother’s postjudgment motion. Wicks, 49 So.3d at 701.

We therefore reverse the trial court’s judgment and remand this cause for the trial court to hold a hearing on the mother’s postjudgment motion. Based on our supreme court’s holding in Ex parte Christopher, 145 So.3d 60 (Ala.2013), the mother has no right to postminority-edu-cational support for L.N., so the trial court need not consider that issue further on remand. The trial court is, however, instructed to consider on remand all the remaining arguments raised in the mother’s postjudgment motion. Because we have already determined that the mother’s postjudgment motion has probable merit, we pretermit discussion of the mother’s remaining substantive arguments. See, e.g., Henderson v. Henderson, 123 So.3d 974, 977 (Ala.Civ.App.2013).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . M.N. had become emancipated by the time the September 15, 2009, modification judgment was entered.

      . At the final hearing, the mother requested that the father be ordered to pay postminority-educational support, and past-due child support, for L.N.