author: MOORE, Judge.

text:
    ALFA MUTUAL INSURANCE COMPANY. v. UNIVERSITY OF SOUTH ALABAMA d/b/a University of South Alabama Medical Center Hospital.
    2140366.
    Court of Civil Appeals of Alabama.
    July 17, 2015. Rehearing Denied September 4, 2015
   MOORE, Judge.

Alfa Mutual Insurance Company ("Alfa") appeals from a judgment of the Mobile Circuit Court ("the trial court") in favor of the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("South"). We affirm in part, reverse in part, and remand the case with instructions.

Procedural History

On May 27, 2014, the South filed a complaint against Alfa and a number of fictitiously named defendants, asserting that Alfa had impaired South's hospital lien, which it attached as an exhibit to the complaint. Alfa filed an answer to the complaint. On August 11, 2014, the parties filed a stipulation of facts, which stated, in pertinent part, that Abaney T. Wright had been admitted to a hospital operated by South in Mobile County on May 21, 2013, for hospital care, treatment, and maintenance for injuries she had received in an automobile accident less than one week before her admission; that Wright died on account of her injuries on May 21, 2013, at South's hospital; that Wright incurred reasonable medical charges for her necessary care, treatment, and maintenance totaling $36,438.50; that, at the time of her injury, treatment, and death, Wright was covered under a contract of insurance issued by Alfa to Wright's father and that that policy provided that Alfa would provide a medical-payment benefit of $2,000, the policy limit, for necessary medical and funeral services because of bodily injury caused by an automobile accident for covered persons, which included Wright; that South had perfected a hospital lien in the amount of $30,900.50 by filing a notice thereof on May 30, 2013, pursuant to Ala.Code 1975, § 35-11-370 et seq., with the Mobile Probate Court; that Alfa had issued a draft in the amount of $2,000 to Wright's parents for the payment of funeral expenses on July 23, 2013; that, on August 22, 2013, South had filed an amended hospital lien in the amount of $36,438.50 with the Mobile Probate Court; and that, on August 27, 2013, Alfa had issued a draft to South's counsel in the amount of $2,000, that South had not negotiated the draft, and that the draft was voided by its terms on August 27, 2014.

On August 12, 2014, South filed a motion for a summary judgment on its claims against Alfa. Alfa filed a cross-motion for a summary judgment on August 13, 2014. Following a hearing, the trial court entered a judgment on December 29, 2014, which stated:

"Upon consideration of the pleadings, Stipulation of Facts, and arguments of counsel, the Court finds it is controlled by Progressive Specialty Ins. Co. v. University of Alabama Hosp., 953 So.2d 413 (Ala.Civ.App.2006), and therefore enters Judgment in favor of [South] for the reasonable medical charges in the amount of $36,438.50 (stipulation number four). The Court additionally enters Judgment in the amount of $5,166.69 representing costs and attorney's fees based upon the conditional stipulation of [Alfa] that, should Judgment be entered in favor of [South], this is a reasonable sum for costs and attorney's fees."

Alfa timely filed its notice of appeal to this court on February 3, 2015.

Discussion

Section 35-11-370, Ala.Code 1975 ("the hospital-lien statute"), states:

"Any person, firm, hospital authority, or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment, and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims, and demands accruing to the person to whom such care, treatment, or maintenance was furnished, or accruing to the legal representatives of such person, and upon all judgments, settlements, and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements, or settlement agreements and which necessitated such hospital care, subject, however, to any attorney's lien."

Alfa first argues on appeal that this court should overrule its opinion in Progressive Specialty Insurance Co. v. University of Alabama Hospital, 953 So.2d 413 (Ala.Civ.App.2006), on which the trial court relied in its judgment. Specifically, Alfa asserts that the lien "should attach only to actions, claims, or counterclaims that a patient has against a tortfeasor - the person that caused the patient/insured to require hospital treatment." This court determined in Progressive, however, that the language of the hospital-lien statute "does not confine itself solely to tort claims and does not limit the right of a hospital to assert a lien on moneys realized only from tort settlements or actions." 953 So.2d at 415. Specifically, this court affirmed "that the hospital-lien statute does apply to moneys due a patient by virtue of a contractual undertaking such as an insurance policy." 953 So.2d at 416.

Alfa argues that, in Progressive, the appellant argued only that the hospital-lien statute should be construed in light of another statute that is part of the Workers' Compensation Act, § 25-5-1 et seq., Ala.Code 1975, and that the appellant did not argue that the principles of statutory construction should apply to the hospital-lien statute itself. Although this court noted in Progressive that the appellant had limited its argument to a comparison of the workers' compensation statute, this court proceeded to consider the rules of statutory construction, as well as additional authority, requiring that the hospital-lien statute was to be construed broadly by this court in reaching its decision. 953 So.2d at 414-16. Alfa argues that this court's construction in Progressive "ignores the wording of the statute as a whole" and, instead, "hinges completely on the definitions of `claim' and `demand' in isolation." This court noted in Progressive, however, that, "`"`[w]hen ascertaining legislative intent, statutes which are in pari materia ... must be interpreted as a whole in light of the general purpose of the statute.'"'" 953 So.2d at 414-15 (quoting Blackmon v. Brazil, 895 So.2d 900, 907 (Ala.2004), quoting in turn Ex parte Berryhill, 801 So.2d 7, 10 (Ala.2001), quoting in turn Kirkland v. State, 529 So.2d 1036, 1038 (Ala.Crim.App.1988)). Alfa's arguments that a reading of the statutes speaking to perfection of a hospital lien, § 35-11-371, Ala.Code 1975; release or satisfaction thereof, § 35-11-372, Ala.Code 1975; and the limitation of a hospital's right to bring an independent action to determine liability for injuries sustained by a person or firm, § 35-11-375, Ala.Code 1975, attempt to circumvent the specificity of the language used in the hospital-lien statute, which this court determined in Progressive was not confined to tort claims. Although § 35-11-371(a) requires a hospital, in order to perfect its lien, to file a verified statement identifying, among other things, the names and addresses of all persons claimed to be "liable for damages arising from" the injured person's injuries, Alfa does not explain how that requirement is mutually exclusive of payments by an insurer held by this court in Progressive to be subject to § 35-11-370. Section 35-11-371(a) goes on to state that "[t]he filing of such claim or lien shall be notice thereof to all persons, firms, or corporations liable for such damages whether or not they are named in such claim or lien." "Liable" is defined as "[r]esponsible or answerable in law; legally obligated." Black's Law Dictionary 1055 (10th ed.2014). We cannot say that an insurance company is not legally obligated to make payments for damages resulting from the bodily harm of its insured. The remaining statutes cited by Alfa use language similar to that in § 35-11-370, which this court has already interpreted in Progressive.

Alfa also attacks Mitchell v. Huntsville Hospital, 598 So.2d 1358 (Ala.1992), and Guin v. Carraway Methodist Medical Center, 583 So.2d 1317 (Ala.1991), two Alabama Supreme Court cases cited as support for this court's decision in Progressive, because, it says, those cases were not directly on point. This court already noted in Progressive, however, that those cases indicated that our supreme court had "at least implicitly held that hospital liens can attach to moneys owed a patient by virtue of a contractual obligation." 953 So.2d at 415. Alfa's arguments that any reference to the hospital-lien statute in those cases was merely dicta or that the argument as to whether the hospital-lien statute was applicable to payments made by insurers was never made before our supreme court in those cases does not cast doubt on whether we appropriately cited those cases as support for our decision in Progressive. Those cases were merely instructive in reaching our decision in Progressive, and our notation regarding their implicit support properly indicated that we did not consider those decisions binding. Thus, any attack on this court's reliance on those cases does not mandate overruling our decision in Progressive.

Alfa next argues that this court should adopt the Tennessee Supreme Court's interpretation of a "nearly identical hospital lien statute" in Shelby County Health Care Corp. v. Nationwide Mutual Insurance Co., 325 S.W.3d 88, 91 (Tenn.2010). In that case, the Supreme Court of Tennessee determined that Tennessee's statutory hospital lien does not extend to payments made pursuant to the medical-payment-benefits provision of an insurance policy. 325 S.W.3d at 98. We note, however, that, in that case, the Supreme Court of Tennessee itself noted that this court's ruling in Progressive was distinguishable because, unlike Alabama's hospital-lien statute, Tennessee's hospital-lien statute contains an additional provision referring to "damages," which is not included in Alabama's statute. 325 S.W.3d at 95. Because that court distinguished its interpretation of Tennessee's hospital-lien statute from our interpretation of Alabama's hospital-lien statute in reaching its conclusion, we need not further consider that case as instructive.

Alfa further argues in a footnote that, although the Alabama Supreme Court has said that the hospital-lien statute is to be interpreted broadly, see Guin v. Carraway Methodist Med. Ctr., 583 So.2d 1317, 1319 (Ala.1991), and Ex parte University of S. Alabama, 761 So.2d 240, 244 (Ala.1999), the American Law Reports article relied on in that line of cases has been superseded by a more current American Law Reports article, see Carol A. Crocca, Construction, Operation, and Effect of Statute Giving Hospital Lien Against Recovery From Tortfeasor Causing Patient's Injuries, 16 A.L.R. 5th 262, § 2(a) (1993), which, Alfa argues, indicates that there is a split of authority as to whether hospital-lien statutes should be broadly or narrowly construed "and calls in to question the continued reliance on the former, superseded notation for suggesting a broad interpretation." This court is not bound by treatises such as the American Law Reports; however, we are bound to follow the mandates of the Alabama Supreme Court, see First Alabama Bank v. Burgess, 681 So.2d 134, 136 (Ala.Civ.App. 1994), which, as Alfa has recognized, has previously concluded that the hospital-lien statute is to be interpreted broadly. Thus, this argument by Alfa is without merit.

Alfa has failed to raise any arguments on appeal that require us to reconsider our holding in Progressive. The Alabama Supreme Court noted in Ex parte Jackson, 614 So.2d 405, 408 (Ala.1993), that, if the legislature disagrees with this court's interpretation of certain statutes, "it will enact appropriate legislation to modify the statute and yield a different result in subsequent cases." Progressive was decided in 2006. The language of § 35-11-370 has remained unchanged since that time, further bolstering this court's interpretation in Progressive. We decline, therefore, to overrule Progressive at Alfa's urging in the present case.

Alfa next asks this court to rule that the Alabama Supreme Court's decision in University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242 (Ala.2004), "is based on a faulty reading of the hospital lien statute's permissive language with respect to damages." In that case, our supreme court determined that the hospital-lien statute requires that a party that is found to have impaired a hospital lien, the creation of which is automatic under § 35-11-370, is responsible for the entirety of the reasonable charges as outlined by the hospital-lien statute. 904 So.2d at 1248. Alfa seeks a reversal of the trial court's ruling in the present case requiring Alfa to pay the full amount of the lien to South. As stated previously, however, this court is bound by the decisions of the Alabama Supreme Court, and we may not overrule that court's decisions. See First Alabama Bank v. Burgess, supra. Thus, this argument by Alfa is without merit because we are bound to follow University of South Alabama v. Progressive, which requires affirmance of the trial court's judgment in this case requiring Alfa to pay the full amount of the hospital lien to South.

Alfa next argues that the trial court erred in failing to conclude that South failed to mitigate damages following Alfa's offer of payment of its funeral-benefit-policy limits to South before South commenced the present action. Alfa cites Avco Financial Services, Inc. v. Ramsey, 631 So.2d 940, 942-43 (Ala.1994), which states, in pertinent part:

"We begin our analysis by recognizing the longstanding rule that the law imposes upon all parties who seek recompense from another a duty to mitigate their losses or damages. Aetna Life Insurance Co. v. Lavoie, 470 So.2d 1060 (Ala.1984). It is equally well established that a plaintiff can recover only for that damage or loss that would have been sustained if the plaintiff had exercised such care as a reasonably prudent person would have exercised under like circumstances to mitigate the damage or loss (Equilease Corp. v. McKinney, 52 Ala.App. 109, 289 So.2d 809 (1974)); and whether the plaintiff has sufficiently mitigated the damages, generally speaking, is a question of fact. Carnival Cruise Lines, Inc. v. Goodin, 535 So.2d 98 (Ala. 1988).
"Stated otherwise, the injured or damaged party is legally bound to lessen the recoverable damages so far as is practicable by the use of ordinary care and diligence. Thus, the rule of mitigation requires a party suffering injury, damage, or loss to take reasonable steps to reduce it.
"The rule of mitigation finds its application only in the context of evidence from which the factfinder may reasonably infer that the claimant rejected a reasonable course of action that an ordinarily prudent person would have taken under similar circumstances to minimize the injury, damage, or loss. In other words, the party seeking to invoke the rule must meet a threshold `sufficiency of the evidence' test, lest the issue be resolved against the movant as a matter of law. The rule does not apply where the injured party, in an effort to minimize the loss, would be required to incur considerable personal risk or expense with but a slight chance of an alternative recovery. Id."

South argues on appeal that acceptance of the offer of payment in the amount of $2,000 by Alfa would have created waiver and estoppel arguments to any action by South against Alfa, which, South argues, would have created an unnecessary risk of extra expenses in responding to those arguments. We agree that those considerations could require additional risk and expense by South, therefore we hold, as a matter of law, that requiring South to have accepted Alfa's offer of $2,000 as mitigation would constitute an unreasonable prerequisite to South's right to proceed against Alfa. See Ramsey, 631 So.2d at 943.

We note further that Alfa fails, in contravention of Rule 28(a)(10), Ala. R.App. P., to cite any authority indicating that South was required to mitigate its statutorily defined damages. See § 35-11-372 and University of S. Alabama v. Progressive, supra. Moreover, § 35-11-372 provides, in pertinent part, that, following the perfection of a hospital lien, "no release or satisfaction of any action, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien." In the present case, South declined to execute a release of its lien in order to accept Alfa's offer of $2,000 toward the purported mitigation of South's damages for Alfa's impairment of its lien. In accordance with § 35-11-372, we decline to hold that South was required to accept that amount in order to mitigate its damages because the statute allows for South to exercise discretion as to whether to accept a release of its lien for any reason. Thus, Alfa's assertion that South was required to mitigate its damages is without merit.

Alfa last argues that the trial court erred in entering a judgment based upon the amount of South's amended lien, rather than the amount of the lien that had been perfected at the time of Alfa's alleged impairment of the lien. South attached to its complaint copies of a hospital lien filed on May 30, 2013, in the amount of $30,900.50, and of an amended hospital lien filed on August 22, 2013, in the amount of $36,438.50; the parties stipulated to those dates and amounts in their stipulation of facts. The parties also stipulated that Alfa had issued a draft in the amount of $2,000 to Wright's parents on July 23, 2013.

Section 35-11-372 provides, in pertinent part, that, "[d]uring the period of time allowed by Section 35-11-371 for perfecting the lien ... and also after the lien ... has been perfected," any impairment of such lien entitles the lienholder to recover "the reasonable cost of such hospital care, treatment and maintenance." Section 35-11-371(a) provides that, in order to perfect the hospital lien, it shall be filed "before or within 10 days after such person shall have been discharged" and the filing of the lien "shall be notice thereof to all persons, firms, or corporations liable for such damages whether or not they are named in such claim or lien." The parties stipulated that Wright died on May 21, 2013. Thus, in accordance with § 35-11-371(a), in order for the hospital lien to be perfected, it was required to have been filed by May 31, 2013.

In Ex parte Infinity Southern Insurance Co., 737 So.2d 463, 466 (Ala.1999), cited by Alfa, our supreme court noted the importance of the time of filing with regard to the applicability of § 35-11-372. Specifically, the supreme court stated:

"[T]he hospital has an automatic lien for its reasonable charges, against the patient's actions and claims. § 35-11-370. Upon perfection of the lien in the manner provided in § 35-11-371, the hospital's lien is protected, pursuant to § 35-11-372, from impairment by one settling an action or claim without obtaining a release or satisfaction of the lien. If the patient settles with the tortfeasor and the hospital has failed to perfect its lien, the hospital's only remedy is against the patient. If the patient settles with the tortfeasor after the lien has been perfected, the hospital has a remedy against both the tortfeasor and the tortfeasor's insurer for impairing the lien, pursuant to § 35-11-372."

737 So.2d at 466.

South cites Board of Trustees of University of Alabama ex rel. University of Alabama Hospital v. American Resources Insurance Co., 5 So.3d 521, 531 (Ala.2008), for the proposition that, "where there is actual knowledge or where actual notice is given, constructive notice is not required" to enforce a hospital lien. There is no indication in the record on appeal, however, that Alfa had actual knowledge of the amended hospital lien or its amount when it tendered the check for $2,000 to Wright's parents on July 23, 2013. Although, in accordance with the hospital-lien statute, South had an automatic lien for its reasonable charges, South did not perfect its amended lien, providing notice to third parties, until after Alfa's impairment of the lien. Because § 35-11-372 allows for recovery only following the perfection of the lien or during the time that perfection is allowed by § 35-11-371(a), and because South's amended lien was untimely filed, Alfa could not be considered to have been on notice of the amount filed in the amended lien and South was not entitled to recovery of the amount of the amended lien, pursuant to § 35-11-372.

South argues that the trial court entered its judgment based on the parties' stipulation that South had incurred reasonable charges for necessary care, treatment, and maintenance totaling $36,438.50. Indeed, the trial court's judgment cites that stipulation in its judgment. That stipulation does not indicate, however, that, at the time of Alfa's payment of $2,000 to Wright's family, Alfa was on notice as to that amount for reasonable medical charges. Because South was not entitled to the amount stated in its amended lien but, rather, was entitled only to the amount in its May 30, 2013, lien, which was properly perfected, we reverse the trial court's judgment awarding the amount stated in the amended lien and remand the case with instructions to the trial court to enter a judgment modifying its award for reasonable medical charges to the amount stated in South's perfected lien.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

THOMPSON, P.J., concurs specially.

THOMPSON, Presiding Judge, concurring specially.

Under the circumstances of this case, I believe that requiring Alfa Mutual Insurance Company ("Alfa") to pay the entire amount of the medical bill Abaney T. Wright incurred at the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("USA") is unduly harsh. Without prompting from USA, Alfa attempted to rectify its error of directly paying Wright's parents $2,000 - an amount equaling the limits of the "medical and funeral expenses" coverage provided under the Wrights' automobile-insurance policy covering Abaney - by tendering to USA a draft in the amount of $2,000 approximately one month after making the payment to the Wrights. Nonetheless, because Alfa had already "impaired" USA's hospital lien, USA did not negotiate the draft, and Alfa became liable for the entire bill of $30,900.50.

I do not believe that the legislature intended such an inequitable result when it enacted §§ 35-11-370 and -372, Ala.Code 1975. However, based on the arguments Alfa advanced in the trial court and on appeal, as well as the current caselaw, especially the opinions from our supreme court, the holdings of which this court cannot alter, I am compelled to agree with the disposition of this case.


source: Caselaw Access Project

license: Public Domain

text:
    ALFA MUTUAL INSURANCE COMPANY v. UNIVERSITY OF SOUTH ALABAMA d/b/a University of South Alabama Medical Center Hospital
    2140366
    Court of Civil Appeals of Alabama.
    June 23, 2017
   MOORE, Judge.

A portion of this court's prior judgment - specifically, this court's holding affirming the Mobile Circuit Court's judgment, in part; stating: "we are bound to follow University of South Alabama v. Progressive[, 904 So.2d 1242 (Ala. 2004)], which requires affirmance of the trial court's judgment in this case requiring Alfa [Mutual Insurance Company] to pay the full amount of the hospital lien," Alfa Mut. Ins. Co. v. University of S. Alabama, 241 So.3d 705, 709 (Ala. Civ. App. 2015) - has been reversed, and the cause has been remanded by the Alabama Supreme Court. See Ex parte Alfa Mut. Ins. Co., 241 So.3d 712 (Ala. 2017). On remand to this court, and in compliance with the supreme court's opinion, that portion of the judgment entered by the Mobile Circuit Court against Alfa Mutual Insurance Company awarding the University of South Alabama d/b/a University of South Alabama Medical Center Hospital ("South") damages based on the full amount of South's lien is reversed, and the cause is remanded for further proceedings consisted with the supreme court's opinion.

REVERSED AND REMANDED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


author: MURDOCK, Justice.

text:
    EX PARTE ALFA MUTUAL INSURANCE COMPANY
    (In re: Alfa Mutual Insurance Company v. University of South Alabama d/b/a University of South Alabama Medical Center Hospital)
    1141343
    Supreme Court of Alabama.
    April 28, 2017
   MURDOCK, Justice.

Alfa Mutual Insurance Company ("Alfa") appealed to the Alabama Court of Civil Appeals from a summary judgment in favor of University of South Alabama d/b/a/University of South Alabama Medical Center Hospital ("USA"). The Court of Civil Appeals affirmed in part, reversed in part, and remanded with instructions. Alfa Mut. Ins. Co. v. University of S. Alabama, 241 So.3d 705 (Ala. Civ. App. 2015) ("Alfa"). We granted Alfa's petition for a writ of certiorari with respect to the issue whether USA's hospital lien was impaired and the amount of damages recoverable by USA from Alfa for that impairment. For the reasons set forth below, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed the circuit court's ruling that the amount of damages recoverable from Alfa was an amount equal to the entirety of USA's reasonable charges, irrespective of the amount that was otherwise owed by Alfa under the terms of its policy, and we remand the case for further proceedings.

I. Facts and Procedural History

USA filed a complaint against Alfa alleging impairment of its hospital lien imposed pursuant to Ala. Code 1975, §§ 35-11-370 through -372, with respect to expenses incurred by USA in its treatment of Abaney T. Wright, who was injured in an automobile accident less than one week before her admission to USA's hospital and later died as a result of her injuries. USA alleged that Alfa impaired its lien by making a $2,000 payment to Wright's parents for funeral expenses under a medical-payment-benefit provision in the parents' automobile-insurance policy. Approximately one month later, Alfa issued a draft to USA's counsel in the amount of $2,000; USA did not negotiate the draft.

The case was tried on stipulated facts, briefs, and arguments of counsel. The circuit court entered a summary judgment in favor of USA in the amount of its amended lien, $36,438.50, plus attorney fees in the amount of $5,166.69. That is, the circuit court awarded damages based on the entirety of the hospital's charges, without respect to the amount otherwise owed by Alfa under its policy. Alfa appealed to the Court of Civil Appeals.

On appeal, Alfa argued (1) that the hospital lien attached only to tort claims and not to the contract claim at issue here, (2) that USA's lien was not impaired because there had been no release, satisfaction, or settlement of any covered claim, and (3) that the damages awarded against Alfa are not owed by it under a proper reading of the lien-impairment statute. Alfa did not challenge the perfection of the lien, the reasonableness of USA's charges, or the amount of the attorney-fee award (assuming that attorney fees were payable at all).

The Court of Civil Appeals issued an opinion affirming the judgment in part, specifically concluding that, under the rationale of University of South Alabama v. Progressive Insurance Co., 904 So.2d 1242 (Ala. 2004), the circuit court correctly ruled that the amount of damages awarded against Alfa should be based on the entirety of USA's reasonable charges secured by its perfected lien. Presiding Judge Thompson concurred specially, noting that the result was inequitable and not intended by the legislature when it enacted §§ 35-11-370 through -372 but concluding that he was "compelled" by caselaw to agree with the disposition of the case. Alfa, 241 So. 3d at 712 (Thompson, P.J., concurring specially).

Alfa petitioned this Court for a writ of certiorari. We granted the petition for a writ of certiorari with respect to the issue whether USA's lien was impaired and the proper measure of damages.

II. Standard of Review

Our standard of review on an appeal of a summary judgment is well settled.

"`"We review a summary judgment de novo. We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. A summary judgment is proper where `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"'"

Tanner v. State Farm Fire & Cas. Co., 874 So.2d 1058, 1063 (Ala. 2003) (quoting Slay v. Keller Indus., Inc., 823 So.2d 623, 624-25 (Ala. 2001) (citations omitted), quoting in turn Northwest Florida Truss, Inc. v. Baldwin Cty. Comm'n, 782 So.2d 274, 276 (Ala. 2000)).

III. Analysis

The pertinent statutes are Ala. Code 1975, §§ 35-11-370 through -372. Section 35-11-370 governs the creation of a hospital lien and provides:

"Any person, firm, hospital authority, or corporation operating a hospital in this state shall have a lien for all reasonable charges for hospital care, treatment, and maintenance of an injured person who entered such hospital within one week after receiving such injuries, upon any and all actions, claims, counterclaims, and demands accruing to the person to whom such care, treatment, or maintenance was furnished, or accruing to the legal representatives of such person, and upon all judgments, settlements, and settlement agreements entered into by virtue thereof on account of injuries giving rise to such actions, claims, counterclaims, demands, judgments, settlements, or settlement agreements and which necessitated such hospital care, subject, however, to any attorney's lien."

(Emphasis added.)

Section 35-11-372 addresses the impairment of a hospital lien and provides:

"During the period of time allowed by Section 35-11-371 for perfecting the lien provided for by this division and also after the lien provided for by this division has been perfected, as provided in this division, by any lienholder entitled thereto, no release or satisfaction of any action, claim, counterclaim, demand, judgment, settlement, or settlement agreement, or of any of them, shall be valid or effectual as against such lien unless such lienholder shall join therein or execute a release of such lien.
"Any acceptance of a release or satisfaction of any such action, claim, counterclaim, demand or judgment and any settlement of any of the foregoing in the absence of a release or satisfaction of the lien referred to in this division shall prima facie constitute an impairment of such lien, and the lienholder shall be entitled to a civil action for damages on account of such impairment, and in such action may recover from the one accepting such release or satisfaction or making such settlement the reasonable cost of such hospital care, treatment and maintenance. Satisfaction of any judgment rendered in favor of the lienholder in any such action shall operate as a satisfaction of the lien. Any action by the lienholder shall be brought in any court having jurisdiction thereof and may be brought and maintained in the county wherein the lienholder has his, its, or their residence or place of business. If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, costs and reasonable attorney's fees. Such action shall be commenced against the person liable for such damages within one year after the date such liability shall be finally determined by a settlement release covenant not to sue or by the judgment of a court of competent jurisdiction."

(Emphasis added.)

Section 35-11-370 grants hospitals a lien on certain actions, claims, counterclaims, demands, judgments, and settlements for the reasonable expenses of treating certain patients injured in accidents. Section 35-11-372 entitles a hospital lienholder "to a civil action for damages on account of" an impairment of a lien.

Like the circuit court, the Court of Civil Appeals considered itself bound by Progressive, and it held that USA was entitled to damages in the amount of its lien, plus attorney fees. We take this opportunity to revisit the holding of Progressive.

In Progressive, a hospital claimed that its lien was impaired by a settlement between the patient and a tortfeasor, in which the patient was paid $6,000 in exchange for a full release of the claims against the tortfeasor. After concluding that the tortfeasor's liability insurer did not adequately present its argument that the hospital lien had not been impaired, this Court rejected the argument that the amount of damages for impairment of a hospital lien is limited to the payment made by the insurer to obtain the release of the tortfeasor. This Court stated:

"To answer this question [as to the amount of damages], we need look no farther than the plain language of § 35-11-372. There, the Legislature plainly and unambiguously stated that a lienholder, such as [the hospital], in a case such as this, `may recover from the one accepting [the] release [i.e., the insurer]... the reasonable cost of [the] hospital care, treatment and maintenance [of the injured person].' The statute clearly does not limit the damages to the amount of the consideration paid for the release. Indeed, such a limitation would be contrary to the purpose of the hospital-lien statute, that is, `to give hospitals... an automatic lien for the reasonable value of their services.' Ex parte Infinity Southern Ins. Co., 737 So.2d 463, 464 (Ala. 1999). Thus, we agree with [the hospital] that the trial court erred in interpreting the hospital-lien statute as limiting [its] damages to the amount of the settlement between Progressive and [the patient]. Having determined that Progressive had impaired [the hospital's] lien, the trial court was required to enter a judgment for [the hospital] against Progressive `for all reasonable charges,' which, in this case, the trial court found totaled $57,097.
"Although § 35-11-372 deals specifically with the damages recoverable in an action for the impairment of a hospital lien, Progressive argues that `[t]he plain language of § 35-11-370, [which gives the hospital the lien,] dictates that ... Progressive is only liable to [the hospital] for the amount of its settlement agreement.' Progressive's brief, at 17.
However, § 35-11-370 contains no such `plain language.' Instead, it gives the hospital an automatic lien `for all reasonable charges for hospital care, treatment and maintenance of an injured person,' which, in this case, totaled $57,097. By its plain language, which this Court cannot ignore, § 35-11-372 provides that a party, such as Progressive, that is found to have impaired a lien, is responsible for those reasonable charges, not for some lesser amount. Any other interpretation would be contrary to `this Court's recognition that the statute is to be construed broadly to accomplish its purpose.' Ex parte University of South Alabama, 761 So.2d [240] at 245 [(Ala. 1999)] (emphasis added)."

904 So.2d at 1248-49.

Chief Justice Nabers dissented as to the amount of damages, concluding that the hospital was entitled to be made whole and to seek the fair value of the claim against the wrongly released tortfeasor, but was not automatically entitled to the full amount of its lien. Chief Justice Nabers stated:

"I dissent ... from the main opinion's conclusion that [the hospital] is entitled to recover from Progressive the reasonable value of all services rendered by the hospital to Clarence Bell as a result of the May 14, 2002, accident - $57,097 - without any regard to the amount of Progressive's obligation to indemnify its insured.
"Section 35-11-372, Ala. Code 1975, provides that, in a case such as this, a hospital `may recover from the one accepting such [a] release ... the reasonable cost of [the] hospital care, treatment and maintenance the hospital provided the injured party. (Emphasis added.) Importantly, the Legislature did not state that a hospital `shall be entitled to recover' such damages. The Legislature did say, however, in that same statute, that `[i]f the lienholder shall prevail in [a civil] action [for damages], the lienholder shall be entitled to recover from the defendant, costs and reasonable attorney's fees.' (Emphasis added.) I think it only reasonable to conclude that the Legislature intended a difference when it used `may recover' with respect to the recovery by the lienholder-hospital of costs for services and `shall be entitled to recover' with respect to litigation costs and attorney fees. The majority opinion, in effect, concludes that the Legislature intended no such difference.
"However, while I think this difference is clear, I acknowledge that the Legislature did not clarify under what circumstances a hospital `may recover' all reasonable costs. When interpreting a statute that is ambiguous on its face, this Court seeks a result that is `workable and fair' and one that considers `the intent of the legislature,' `the results that flow from assigning one meaning over another,' and `related statutory provisions.' John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala. 1988). My consideration of all of these factors leads me to conclude that a hospital `may recover' the reasonable cost of all services only if the lien that was impaired had a value equal to or greater than such reasonable cost."

Progressive, 904 So.2d at 1249-50 (Nabers, C.J., concurring in part and dissenting in part).

We agree with Chief Justice Nabers that a hospital is not entitled to recover automatically the full amount of its lien whenever there has been an impairment of any magnitude. As Chief Justice Nabers noted in Progressive: "[I]t is appropriate that [the hospital] be restored to the position it would have been in had its lien not been impaired." 904 So.2d at 1250. That conclusion is consistent with § 35-11-372, which provides for "a civil action for damages on account of such impairment." Damages on account of an impairment means damages caused by or resulting from the impairment. See Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Florida, 97 So.3d 204, 213 (Fla. 2012) (noting that "damages on account of such impairment" means damages "by reason of" or "because of" an impairment). That is to say that damages on account of an impairment are measured by the difference between the amount the hospital actually recovered and the amount it could have recovered absent the impairment. That result is equitable and comports with the purpose of the lien statute. Awarding a hospital a windfall for a minor impairment is not equitable and does not comport with the purpose of the statute.

In the present case, the value of the claim to which the lien attached was the policy limit of the medical-payment benefit at issue, or $2,000. Logically, in a case such as this, the value of the lien could not be more than the value of the claim to which it attaches. In contrast, Progressive involved a release of a tortfeasor, which, unlike an insurer whose potential liability is limited pursuant to a pre-injury contract, could potentially be liable for an amount that equals or exceeds the full amount of the hospital's lien (assuming that liability for at least that amount can be shown). Compare Shands Teaching Hosp. & Clinics, Inc., 97 So.3d at 213 (holding that hospital's damages for impairment of its lien were limited to the policy limits of the applicable liability insurance). See also 41 C.J.S. Hospitals § 25 (2015) (damages for impairment of hospital lien are limited to the policy limits of liability-insurance coverage). Accordingly, we conclude that the amount of damages recoverable in this case (assuming there was an impairment), is the amount of the claim against Alfa - $2,000.

The purpose of the lien statute is to induce hospitals to "receive a patient injured in an accident, without first considering whether the patient will be able to pay the medical bills incurred." Ex parte University of South Alabama, 761 So.2d 240, 244 (Ala. 1999). The purpose of the statute is not to precipitate additional litigation, provide a windfall for hospitals, or saddle insurers with uncontracted-for liability in the event they pay a policy benefit that happens to be subject to a hospital lien.

IV. Conclusion

Based on the foregoing, we reverse the judgment of the Court of Civil Appeals insofar as it affirmed an award of damages against Alfa based on the full amount of USA's lien. We remand the case for further proceedings consistent with this opinion. In light of our holding that the measure of impairment of a hospital's lien under circumstances such as those presented here does not exceed the amount that would be recoverable against an insurer under the terms of its policy, we pretermit discussion of the issue whether Alfa's actions (including its making a payment to Wright's parents of its policy limits and its subsequent tender of the same amount to USA) amounted to an impairment of USA's lien within the meaning of the statute (an issue that was not considered by the circuit court, given its understanding of the measure of damages for which Alfa was responsible).

REVERSED AND REMANDED.

Parker, Main, and Wise, JJ., concur.

Bolin and Shaw, JJ., concur in the result.

Stuart, C.J., recuses herself.

      The insurance policy provided for a medical-payment benefit of $2,000 for necessary medical and/or funeral expenses because of bodily injury to a covered person caused by an automobile accident.

      We did not grant certiorari review as to this first issue. See Progressive Specialty Ins. Co. v. University of Alabama Hosp. , (Ala. Civ. App. 2006).

      The Court of Civil Appeals reversed the judgment insofar as it increased those damages to include additional amounts charged by USA in a subsequent lien perfected before the alleged impairment. The Court of Civil Appeals held that USA was entitled to recover only the amount of its original lien ($30,900.50), which was the only lien perfected at the time Alfa made the payment to Wright's parents. USA did not seek certiorari review as to the amount of the lien; the difference between the two lien amounts is not material to the analysis in this opinion.


author: DONALDSON, Judge.

text:
    BEBEE PROPERTIES, LLC v. Margaret A. ARD
    Margaret A. Ard v. Bebee Properties, LLC, and Thomas Greer
    2150963
    Court of Civil Appeals of Alabama.
    June 2, 2017
    Joseph Kulakowski, Mobile; and John Richardson, Mobile, for appellant/cross-appellee Bebee Properties, LLC.
    Mark H. Taupeka of Taupeka Law LLC, Orange Beach; and Max Cassady of Cassady & Cassady, P.C., Fairhope, for appellee/cross-appellant Margaret A. Ard.
   DONALDSON, Judge.

Bebee Properties, LLC ("Bebee Properties"), appeals from a summary judgment entered by the Baldwin Circuit Court ("the trial court") in favor of Margaret A. Ard ("Margaret") on its claims against Margaret. Margaret cross-appeals from a summary judgment entered in favor of Bebee Properties and Thomas Greer on two counts of her counterclaim. We hold that the partial-summary-judgment order could not be properly certified as final pursuant to Rule 54(b), Ala. R. Civ. P., and, therefore, we dismiss the appeals as being from a nonfinal judgment.

Facts and Procedural History

Bebee Properties is a limited-liability company; Greer is the sole member of Bebee Properties. Greer had served as an officer of another company for which Samuel David Ard ("David") had worked for approximately 20 years. In August 2006, Greer caused a check in the amount of $140,000, drawn from a Bebee Properties' account, to be issued to "David Ard." The check represented a loan from Bebee Properties. Margaret, upon instruction from David, deposited that check into her and David's joint bank account. Margaret then obtained a cashier's check from the bank for $140,335.55 payable to a mortgage company to pay off the Ards' mortgage on their property in the Havel Estates subdivision ("the property"), which they owned as joint tenants with right of survivorship. David resigned from his employment with the other company of which Greer was an officer in November 2012. In January 2013, David committed suicide. In March 2013, Bebee Properties began attempts to obtain the balance of the loan from Margaret.

In June 2013, Bebee Properties filed a notice of lis pendens regarding the property in the Baldwin Probate Court and a complaint against Margaret in the trial court. In the complaint, which was later amended, Bebee Properties alleged that the loan had been made based on a specific contractual agreement between Bebee Properties and the Ards that the title to the property would be held in trust for Bebee Properties and either that the property would be sold and Bebee Properties repaid or that title would be conveyed to Bebee Properties in exchange for Bebee Properties' loan to the Ards of $140,000. Bebee Properties further asserted that, even if Margaret was not a party to the agreement, she was a third-party beneficiary of the agreement.

Bebee Properties asserted two counts in its complaint. The first count sought the imposition of a constructive trust on the property and the sale of the property, with the proceeds paid to Bebee Properties, or, alternatively, the conveyance of the property to Bebee Properties. Bebee Properties' second count sought a judgment in the amount of $136,500 (the balance of the $140,000 loan) against Margaret based on various theories. Upon Margaret's motion, all of Bebee Properties' theories of liability under the second count were stricken except for two: breach of contract and moneys lent.

Margaret filed an answer and counterclaim in which she asserted claims against both Bebee Properties and Greer. See Rule 13(h), Ala. R. Civ. P. Margaret subsequently filed an amended answer and counterclaim in which she asserted the Statute of Frauds as a defense to Bebee Properties' complaint and incorporated her previously filed counterclaim. Bebee Properties filed a motion to strike Margaret's asserted defense of the Statute of Frauds, which was not granted. Margaret's counterclaim, as amended, asserted six counts: 1) count one sought a judgment declaring that Margaret is not indebted to Bebee Properties; 2) count two was a claim to cancel the notice of lis pendens filed by Bebee Properties regarding the property; 3) count three, asserted against both Bebee Properties and Greer, sought compensatory and punitive damages for slander of title based on the filing of the notice of lis pendens; 4) count four was a claim asserting intentional infliction of emotional distress against both Bebee Properties and Greer; 5) count five was a claim against Bebee Properties under the Alabama Litigation Accountability Act ("the ALAA"), § 12-19-270 et seq., Ala. Code 1975, for attorney's fees; and 6) count six was a claim asserting invasion of privacy against both Bebee Properties and Greer.

On March 25, 2014, Margaret filed a motion for a partial summary judgment as to all counts of Bebee Properties' complaint against her and as to counts one, two, three, and five of her amended counterclaim. Margaret later filed a supplement to her partial-summary-judgment motion to which she attached personal notes from David and portions of Greer's and Margaret's depositions. Greer filed an affidavit in opposition to Margaret's motion. Margaret filed a motion to strike hearsay statements contained in Greer's affidavit, which was granted. Bebee Properties filed a response to Margaret's motion for a partial summary judgment, and it subsequently argued that Margaret's motion should be denied based on Margaret's alleged admission that she had been unjustly enriched. The trial court denied Margaret's motion for a partial summary judgment on October 21, 2014, without explanation.

On January 29, 2016, Margaret filed another motion for a partial summary judgment in which she focused primarily on the Statute of Frauds as a defense to Bebee Properties' claims. In her motion, Margaret expressly incorporated her previous motion for a partial summary judgment, which had sought a summary judgment on all the counts of Bebee Properties' complaint and on counts one, two, three and five of Margaret's counterclaim. Bebee Properties filed a response to Margaret's second motion for a partial summary judgment, and Margaret filed a reply to Bebee Properties' response.

On February 15, 2016, Bebee Properties and Greer filed a joint motion for a partial summary judgment as to counts four and six of Margaret's counterclaim. Margaret filed a motion to strike that motion for a partial summary judgment, asserting that it was untimely filed. Margaret's motion to strike was never ruled on by the trial court. On March 2, 2016, the trial court entered a partial-summary-judgment order in which it granted a summary judgment in favor of Margaret as to both counts of Bebee Properties' complaint and in favor of Bebee Properties and Greer on counts four and six of Margaret's counterclaim. The trial court's partial-summary-judgment order reads, in part:

"This matter was before this Court on a Motion for Summary Judgment filed by Margaret A. Ard against Bebee Properties, LLC on January 29, 2016. Bebee Properties, LLC[, and Greer] filed their own Motion for Summary Judgment against Margaret A. Ard on February 1[5], 2016. After reviewing the briefs with accompanying documents filed by both parties and hearing oral arguments from attorneys of all interested parties, the Court finds that there is no genuine issue as to any material fact and the Defendant, Margaret A. Ard is entitled to a judgment as a matter of law. Additionally, Plaintiff Bebee Properties, LLC and Thomas Greer are entitled to summary judgment on Counts IV and VI of Margaret A. Ard's Counter-Claim.
"1. Plaintiff BEBEE PROPERTIES, LLC advanced $140,000.00 to [Margaret] and her husband for their oral agreement to sell their real property and repay [Bebee Properties] from the proceeds thereof or convey the same to [Bebee Properties] in repayment.
"2. The oral agreement was a contract for the sale of lands or an interest therein, it was not in a writing expressing the consideration thereof and therefore no written agreement was ever signed by [Margaret] or her husband, and [Bebee Properties] was not put in possession of the real property.
"3. [Margaret] was not an active participant to the agreement but the agreement was oral between her husband[, David,] and [Bebee Properties] of which there is some evidence that she was aware. There is no evidence [Margaret] acted fraudulently with respect to the making of the oral agreement. Therefore, the agreement as to [Margaret] is void under the Alabama Statute of Frauds and equity will not intervene to impose the relief. It was also not an enforceable trust as it was not in the form of a signed writing.
"4. The Court cannot impose a purchase money resulting trust because the funds advanced in 2006 were not used to purchase the land. [Margaret and her husband David] purchased the land and acquired legal title and a legal estate in lands to the subject real property by warranty deed in 1995.
"5. [Bebee Properties] seeks equity in a constructive trust, but the facts of the case do not show that this is a situation where a constructive trust is to be used. 'Equity may impose a constructive trust on property in favor of the one beneficially entitled to it in situations in which another party holds title to the property through fraud, commission of a wrong, abuse of a confidential relationship, or any other form of unconscionable conduct.' Beasley v. Mellon Financial Services Corp., 569 So.2d 389, 394 (Ala. 1990) (citing Keeton, Law on Trusts, 210 (5th ed. 1949); 4 Pomeroy Equity Jurisprudence, § 1053 (5th ed. 1941); and Walsh on Equity, § 106 (1930)).
"6. The maxim, that 'he who seeks equity must do equity,' lies at the foundation of equity jurisprudence. Tilley's Alabama Equity § 1:5 (5th ed. 2015). [Bebee Properties] had sufficient time to reduce the agreement to writing and chose not to do so. [Bebee Properties] cannot seek a remedy for its own failure to act.
"7. The Court declines to impose a constructive trust as [Bebee Properties] does not allege any fraud by, or any confidential relation with, [Margaret] much less bear its burden of proof of such by competent evidence.
"8. The Court finds that [Margaret] is not estopped from asserting the Statute of Frauds as an affirmative defense as Alabama courts have rejected promissory estoppel to abrogate the Statute of Frauds involving an oral contract for an interest in land, and equitable estoppel cannot be found absent fraudulent conduct, of which there is none here.
"9. The Court finds that Counts IV and VI of [Margaret's] counterclaim are due to be dismissed. The facts show that there is no egregious conduct on the part of [Bebee Properties], nor is there any extreme distress experienced by [Margaret]. [Margaret's] claims of 'outrage' (the same tort as intentional infliction of emotional distress) and 'breach of privacy' are due to be dismissed since there is no genuine dispute of material facts, and judgment is due as a matter of law.
"It is therefore ORDERED, ADJUDGED, and DECREED
"1. There is no genuine issue as to any material fact, and [Margaret] is entitled to summary judgment as a matter of law.
"2. [Margaret's] motion for the entry of an order for Summary Judgment in her favor as to the claims asserted in the Amended Complaint, Counts One and Two, filed by [Bebee Properties] is hereby GRANTED.
"3. The Judge of Probate of Baldwin County, Alabama, is hereby ORDERED to release, cancel, discharge or otherwise terminate the Notice of Lis Pendens filed by [Bebee Properties] at Instrument Number 1402359.
"4. That there is no genuine issue as to any material fact and [Bebee Properties and Greer] are entitled to a judgment as a matter of law on Counts IV and VI in [Margaret's] counter-claim.
"5. [Bebee Properties and Greer's] motion for the entry of summary Judgment in [their] favor as to counts IV and VI of [Margaret's] Counter-claim is hereby GRANTED."

(Capitalization in original.)

On April 1, 2016, Margaret filed what she described as a "conditional" motion to alter and amend the portion of the partial-summary-judgment order in favor of Bebee Properties and Greer. In the motion, Margaret argued that the judgment should be vacated because, she asserted, she was not given the chance to be heard on Bebee Properties and Greer's motion and because she had moved to strike the motion as untimely. Margaret described the motion as "conditional" because, she said, it was filed only as a precaution in the event that Bebee Properties attempted to appeal from the judgment.

On June 14, 2016, the trial court entered an order pursuant to Rule 54(b), Ala. R. Civ. P., certifying the partial-summary-judgment order as final regarding the claims addressed in that order. On July 14, 2016, Bebee Properties filed a motion seeking to determine whether a summary judgment had been granted as to Bebee Properties' third-party-beneficiary claims alleging breach of contract and moneys lent (the two claims in count two of its amended complaint that were not stricken), but the trial court did not directly rule on that motion.

On July 26, 2016, Bebee Properties timely filed a notice of appeal to the supreme court. Margaret filed a timely cross-appeal. The supreme court deflected the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Discussion

Although neither party has raised the finality of the partial-summary-judgment order as an issue on appeal, "jurisdictional matters[, such as the finality of the judgment from which an appeal arises,] are of such magnitude that we take notice of them at any time and do so even ex mero motu."

Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). "This court has appellate jurisdiction over appeals from judgments that are final." Perry v. Perry, 92 So.3d 799, 800 (Ala. Civ. App. 2012) ; Burkhalter v. Burkhalter, 98 So.3d 554, 555 (Ala. Civ. App. 2012) (explaining that the issue of the finality of a judgment is a jurisdictional question). The trial court entered an order certifying its partial-summary-judgment order as final pursuant to Rule 54(b), Ala. R. Civ. P.

" 'Ordinarily, an appeal can be brought only from a final judgment. Ala. Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.'
" Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala. 2001).
" 'Not every order has the requisite element of finality that can trigger the operation of Rule 54(b).' Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003) (citing Moss v. Williams, 747 So.2d 905 (Ala. Civ. App. 1999) ). ' " 'Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.' " ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004) (quoting State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994) ).
" ' " ' "Appellate review in a piecemeal fashion is not favored." ' " ' Id. (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003), quoting in turn Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala. Civ. App. 1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996) ).
" ' "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.
" ' "An appellate court also should not hear appeals that will require it to determine questions that remain before the trial court with regard to other claims." '
" Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998) )."

Lund v. Owens, 170 So.3d 691, 695 (Ala. Civ. App. 2014).

The trial court's partial-summary-judgment order specifies that a summary judgment has been entered in favor of Margaret as to counts one and two of Bebee Properties' complaint and in favor of Bebee Properties and Greer on counts four and six of Margaret's counterclaim. The order also states that "there is no genuine issue of material fact, and [Margaret] is entitled to summary judgment as a matter of law."

Margaret's second motion for a partial summary judgment incorporated her previously filed motion for a partial summary judgment, which sought a summary judgment on all counts of Bebee Properties' complaint and on counts one, two, three, and five of her counterclaim. Count one of Margaret's counterclaim sought a judgment declaring that Margaret is not indebted to Bebee Properties; count two was a claim to cancel the notice of lis pendens filed by Bebee Properties against the property; count three sought compensatory and punitive damages for slander of title because of filing of the notice of lis pendens; and count five was a claim under the ALAA for attorney's fees. As explained earlier, a judgment was entered in favor of Bebee Properties and Greer on count four of Margaret's counterclaim, alleging intentional infliction of emotional distress, and count six of her counterclaim, alleging invasion of privacy. As discussed later in the opinion, it does not appear that the trial court addressed, or afforded the requested relief sought by Margaret, in count three (slander of title) and count five (the ALAA claim).

Based on the uncertainty regarding which, if any, claims remained pending, this court requested letter briefs from the parties on whether the partial-summary-judgment order resolved all claims and, if any claims remained pending, whether the trial court's Rule 54(b) certification was appropriate.

Bebee Properties filed a letter brief in which it asserted that this court should "find that the circuit court improvidently entered the sua sponte 54(b) order." Bebee Properties asserts that this case is similar to Blackmon v. Renasant Bank, 232 So. 3d 224 (Ala. 2017), in which the supreme court held that a partial-summary-judgment order addressing unjust-enrichment and money-had-and-received claims was not appropriate for Rule 54(b) certification because the trial court's order did not fully adjudicate a single claim. Bebee Properties argues that count two of its amended complaint, which sought damages against Margaret on various theories, was not resolved because, it asserts, Margaret did not seek a summary judgment on that count and the trial court did not enter a summary judgment on that count. The record does not appear to support that assertion.

We first note that breach of contract and moneys lent were the only two remaining theories of liability in count two of Bebee Properties' amended complaint after the trial court granted Margaret's motion to strike. In her second motion for a partial summary judgment, Margaret specifically requested a summary judgment as to count one and count two of Bebee Properties' amended complaint, and Margaret expressly incorporated her previous motion for a partial summary judgment, which had sought a summary judgment on all counts of Bebee Properties' complaint. We also observe that, in its partial-summary-judgment order, the trial court expressly entered a summary judgment in Margaret's favor on count one and count two of Bebee Properties' amended complaint. Therefore, the partial-summary-judgment order resolved all of Bebee Properties' claims against Margaret.

Margaret also filed a letter brief with this court in which she asserted that count one of her counterclaim seeking a declaratory judgment, and count two of her counterclaim, requesting a cancellation of the notice of lis pendens that had been filed, were effectively resolved by the trial court's partial-summary-judgment order. Margaret asserts that count three of her counterclaim, alleging slander of title against Bebee Properties and Greer, and count five of her counterclaim, seeking damages against Bebee Properties under the ALAA, remain pending but that the Rule 54(b) certification was proper.

" Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Under 'appropriate facts,' a partial summary judgment on an original claim may be finally adjudicated pursuant to Rule 54(b), leaving a counterclaim undecided so that the parties can further litigate the issues presented by the counterclaim. Pate v. Merchants National Bank of Mobile, 409 So.2d 797, 798 (Ala. 1982)."

Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987). Rule 54(b) certification is not proper, however, when the unadjudicated claims "are so closely intertwined [with the claims adjudicated in the judgment certified as final] that separate adjudication would pose an unreasonable risk of inconsistent results." Branch, 514 So.2d at 1374. Furthermore, Rule 54(b) certification is improper "when at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and ' "[r]epeated appellate review of the same underlying facts would be a probability in [the] case." ' " Lund, 170 So.3d at 696 (quoting Patterson v. Jai Maatadee, Inc., 131 So.3d 607, 611 (Ala. 2013), quoting in turn Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009) ). "[The Alabama Supreme Court] looks with some disfavor upon certifications under Rule 54(b)." Schlarb v. Lee, 955 So.2d 418, 419 (Ala. 2006).

We must, therefore, determine whether the remaining counts of Margaret's counterclaim-count three and count five-are so closely intertwined with those claims on which a summary judgment was entered that separate adjudication would pose an unreasonable risk of inconsistent results. Id. Count three of Margaret's counterclaim, alleging slander of title, requires proof of the following elements:

" '(1) Ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the false statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiff's property or the title thereof; and (6) that special damages were the proximate result of such publication (setting them out in detail).' "

Merchants Nat'l Bank of Mobile v. Steiner, 404 So.2d 14, 21 (Ala. 1981) (quoting Womack v. McDonald, 219 Ala. 75, 76-77, 121 So. 57, 59 (1929) ). As part of the trial court's resolution of Margaret's claims seeking a declaratory judgment and cancellation of the notice of lis pendens, which were resolved in the partial-summary-judgment order, the trial court was required to resolve the issue of ownership of the property-an essential element of the slander-of-title claim. Therefore, we cannot say that the pending claim and the claims that have been resolved are so sufficiently distinct and separate that separate adjudication will not pose a risk of inconsistent results. Branch, 514 So.2d at 1374.

With regard to Margaret's claim for attorney's fees under the ALAA, § 12-19-272(a), Ala. Code 1975, provides, in part, that,

"in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part."

The ALAA "is clear that, as a prerequisite to an award of attorney fees ..., the court must find that the claim asserted is 'without substantial justification.' Further, in determining whether to assess attorney fees and costs, the court shall consider, but is not limited to, numerous factors which are set forth" in § 12-19-273, Ala. Code 1975. McArdle v. Bromfield, 540 So.2d 91, 94 (Ala. Civ. App. 1989). In addition, "the ALAA provides for the trial court to consider the outcome of the proceedings in determining whether a party's action was without substantial justification." Baker v. Williams Bros., 601 So.2d 110, 112 (Ala. Civ. App. 1992).

In order to determine whether Margaret is entitled to an award under the ALAA, the trial court might be required to consider, in part, facts and circumstances related to whether Bebee Properties properly filed a notice of lis pendens and whether Bebee Properties slandered Margaret's title. Therefore, "at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and ' "[r]epeated appellate review of the same underlying facts [is] a probability in [the] case." ' " Lund, 170 So.3d at 696. Accordingly, Margaret's ALAA claim is also "so closely intertwined [with at least some of the claims adjudicated in the partial-summary-judgment order] that separate adjudication would pose an unreasonable risk of inconsistent results." Branch, 514 So.2d at 1374.

Because we have determined that at least some of the claims that were resolved in the trial court's partial-summary-judgment order are "common to, and are therefore 'intertwined' with," the claims alleging slander of title and seeking attorney's fees under the ALAA that remain pending in the trial court, precedent dictates that "we conclude that the trial court exceeded its discretion in certifying the summary judgment ... as final pursuant to Rule 54(b)." Lund, 170 So.3d at 697. Accordingly, because Rule 54(b) certification was inappropriate, we dismiss the appeal and the cross-appeal as having been taken from a nonfinal judgment.

APPEAL-DISMISSED.

CROSS-APPEAL-DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      On August 22, 2016, the trial court did purport to enter an order stating: "[T]o clarify, the June 14, 2016, order simply made the March Summary Judgment a final order for appeal purposes. It did not change any other aspect of the March Summary Judgment order." That order was entered after the parties had appealed the partial-summary-judgment order to this court and is therefore void. See Searle v. Vinson, 42 So.3d 767, 771-72 (Ala. Civ. App. 2010).

      Although Greer is listed as a cross-appellee, he has not filed a brief with this court.

      Despite its position that the trial court should not have entered the order certifying its partial-summary-judgment order as final pursuant to Rule 54(b), Bebee Properties asserts that "this Court should review the issues on this Appeal as to the erroneous holding of the circuit court that a constructive trust cannot be imposed to prevent an unjust enrichment." Because we hold that certification pursuant to Rule 54(b) was improper, we will not address that issue.


author: THOMPSON, Presiding Judge.

text:
    EX PARTE Tammera L. HUDSON
    In re: Tammera L. Hudson v. Fredie Joe Hudson
    2160558
    Court of Civil Appeals of Alabama.
    June 23, 2017
    Floyd C. Enfinger, Jr., Montrose, for petitioner.
    Karen L. Materna, Montgomery, for respondent.
   THOMPSON, Presiding Judge.

Tammera L. Hudson ("the wife") petitions this court for a writ of mandamus directing the Baldwin Circuit Court ("the trial court") to vacate its order granting the motion of Fredie Joe Hudson ("the husband") for a change of venue.

The materials submitted to this court in support of and in opposition to the petition indicate the following. On February 17, 2017, the wife filed a complaint in the trial court seeking a legal separation from the husband. On March 13, 2017, the husband filed the motion seeking to have the action transferred to Montgomery County. As the ground for his motion, the husband asserted that he is a resident of Montgomery County. He claimed that the parties had lived in Montgomery County from the time of their marriage ceremony in the Virgin Islands "up until the time they separated." The husband also alleged that his primary residence and business were in Montgomery County.

On April 6, 2017, an ore tenus hearing was held on the issue of venue. A transcript of that hearing is included in the materials submitted in support of the petition for a writ of mandamus. At the hearing, the husband testified that he had resided in Montgomery County since 1983. He said that, when the wife and he married in 2015, they lived in Montgomery County.

The husband testified that the parties separated in January 2017; however, he also testified that he had lived in Montgomery County with the wife until December 23, 2016. The husband said he had owned a house in Montgomery County ("the Montgomery County house") up until that date. After the Montgomery County house was sold, the husband said, he and the wife stayed at their vacation house on Ono Island, in Baldwin County. The husband testified that, when he obtained a divorce from her, his first wife received "rights to [the Ono Island house] half of the month." The wife testified that the husband's former wife did not use the Ono Island house. Additionally, the husband testified, he owned a house in Palm Beach, Florida. The husband testified that he had claimed a homestead exemption for the Montgomery County house. He also said that his vehicles were registered in Montgomery County, that he was registered to vote in Montgomery County, that the address on his driver's license was the address of the Montgomery County house, and that the corporate office of his business, Joe Hudson's Collision Center, is in Montgomery County.

Despite having a house on Ono Island and another house in Palm Beach, the husband said, it was his intention to reside in Montgomery County until he retired. At the time of the hearing, the husband said, he was looking to purchase another house "in [the] same community" as the Montgomery County house. He said that, when the Montgomery County house sold, it was not his intention to move to another county. At the time of the hearing, the husband said, he was living with his son at the son's home in Montgomery County or staying at the son's hunting camp. The location of the hunting camp is not mentioned in the record.

The wife testified that the husband and she were living in Baldwin County at the time they separated. She said that, from March 2016 until their separation, they spent approximately 90% of their time at the house on Ono Island. However, she also testified that, when the parties separated, the last place they had lived was in Fairhope, which is in Baldwin County. The wife acknowledged that, after she and the husband married, she moved to Montgomery, but she stated that she had custody of her child, who lived in Fairhope, and that she would go to Fairhope every other week.

On April 6, 2017, after the hearing, the trial court entered an order granting the husband's motion to change venue and transfer the action. On April 19, 2017, the wife filed the petition for a writ of mandamus.

In her petition, the wife contends that the trial court erred in granting the motion for a change of venue. Specifically, she argues that the evidence indicates that the parties resided in Baldwin County at the time of their separation and, therefore, that venue was proper in Baldwin County.

"A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ' " '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' " ' Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999)."

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

" 'The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987)." Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002) ; see also Ex parte Hibbett Sporting Goods, Inc., 228 So.3d 1008, 1013 (Ala. Civ. App. 2017).

Section 30-2-4, Ala. Code 1975, governs the issue of venue in cases of divorce. That statute provides:

"Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides."

"Venue, in a divorce action, lies in the county where the parties resided at the time of the separation, not in the county where the separation occurred. Norton v. Norton, 48 Ala.App. 663, 267 So.2d 457 (Ala. Civ. App. 1972)." Ex parte Watkins, 555 So.2d 1098, 1099 (Ala. Civ. App. 1989). "This court also observed in Watkins that '[t]he question of whether to transfer a case because of venue addresses itself to the sound discretion of the trial court, and any abuse of that discretion may be controlled by the writ of mandamus.' [ 555 So.2d at 1099 ]." Carson v. Carson, 237 So.3d 889, 892 (Ala. Civ. App. 2017). Furthermore, "[t]he determination of whether the parties resided in [a certain county] is a factual question resolved by the trial court after a hearing of the evidence by the court. Such a finding is given a presumption of correctness and will not be disturbed by this court unless we can say it was plainly and palpably wrong." Ex parte Greene, 527 So.2d 1320, 1321 (Ala. Civ. App. 1988).

It has long been the law in Alabama that

"[t]he decisions are to the effect that 'residence' as used in such statutes is the equivalent of domicile; residence means legal residence or domicile for such purposes. Allgood v. Williams, 92 Ala. 551, 8 So. 722 [ (1891) ] ; Metcalf v. Lowther's Executrix, 56 Ala. 312 [ (1876) ]. It is therefore a mixed question of law and fact, depending upon the bona fide intention of the party."

Caheen v. Caheen, 233 Ala. 494, 496, 172 So. 618, 619 (1937).

" 'A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.'
" Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 514 (1945)."

Skieff v. Cole-Skieff, 884 So.2d 880, 883 (Ala. Civ. App. 2003).

In this case, the evidence was disputed as to whether the husband and the wife had lived in Baldwin County since March 2016, as the wife testified, or had simply gone to stay in the house on Ono Island, of which the husband's former wife held an interest, after the sale of the Montgomery County house on December 23, 2016, as the husband's testimony demonstrated. The husband's undisputed testimony was that he never intended to reside in Baldwin County but that he was looking for a house to buy in the same community where he had owned the Montgomery County house. In the meantime, the husband said, he was living with his son in Montgomery County or staying at his son's hunting camp. The evidence also is undisputed that the husband's business is in Montgomery County. Although the husband owned three houses, he took the homestead exemption on the Montgomery County house. The husband's driver's license address displayed the address of the Montgomery County house, and the husband was registered to vote in Montgomery County.

After reviewing the materials submitted in this matter, we conclude that the trial court reasonably could have found that the separation occurred in Baldwin County but that the parties, or at least the husband, who is the defendant in the action below, resided in Montgomery County at the time the parties separated. This is true even though he had just sold the Montgomery County house. The trial court could have believed that the parties, or at least the husband, went to the house on Ono Island simply to have a place to stay until a new house could be purchased in Montgomery County. There is no evidence in the record to show that the husband ever intended to remain in Baldwin County. Under our standard of review, the trial court's determination is given a presumption of correctness, Scott v. Scott 915 So.2d 577, 579 (Ala. Civ. App. 2005), and we cannot say that the trial court clearly erred in granting the husband's motion seeking a change of venue. Ex parte Pike Fabrication, 859 So.2d at 1091. We also cannot say that the wife has shown a clear legal right to the relief she seeks. Accordingly, the petition is denied.

PETITION DENIED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      Although this is an action for a legal separation and not a divorce, the parties agree that § 30-2-4 is applicable in this case.