author: MURDOCK, Justice.

text:
    Charles K. BRELAND, Jr., and Breland Corporation v. CITY OF FAIRHOPE Charles K. Breland, Jr., and Breland Corporation v. City of Fairhope
    1131057
    1131210
    Supreme Court of Alabama.
    September 30, 2016
    Rehearing Applications Denied February 17, 2017

      Daniel G. Blackburn and Grant Blackburn of Blackburn, Conner & Taupeka, P.C., Bay Minette; and Albert It. Jordan and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, LLC, Birmingham, for appellants.
    Caine O’Rear III and Lisa D. Cooper of Hand Arendall LLC, Mobile; and Marion E. Wynne, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Fairhope, for appellee.
   MURDOCK, Justice.

Charles K. Breland, Jr., and Breland Corporation (hereinafter refereed to collectively as “Breland”) appeal from a summary judgment entered against them and in favor of the City of Fairhope (“Fair-hope”) by the Baldwin Circuit Court in Breland’s action séeking declaratory relief and damages based' on alleged negligent conduct by Fairhope in relation to real property owned by Breland. We reverse the summary judgment.

I. Facts and Procedural History

In 1999, Breland purchased 65 acres of real property in Baldwin County for $510,364.50 (“the property”). Over 50 percent of the property consists. of wetlands. The property is located outside the corporate limits of Fairhope but within its police jurisdiction.

In 2000, Breland filed applications for permits and certifications from the United States Army Corps of Engineers (“the Corps”) and the Alabama Department of Environmental Management (“ADEM”) in order to fill approximately 10,5 acres of wetlands on.the property (“the fill project”). When Breland filed his application for the Corps permit, Fairhope’s mayor, on behalf of the Fairhope City Council, filed a “formal protest” with the Corps concerning the fill project.

On October 22,2002, ADEM notified the Corps in a letter that it had completed its review of the fill project. The letter stated that ADEM was providing Breland with a water-quality certification pursuant to § 401(a)(1) of the Clean Water Act (“CWA”), codified at 33 U.S.C. § 1341, for the fill project. The certification isshed by ADEM was valid for'five years.

On November 20, 2002, the Corps issued a permit to Breland approving the fill project; the permit would expire in November 2005 (“the Corps permit”). The Corps permit noted that it was issued pursuant to § 404 of the CWA, codified at 33 U.S.C. § 1344, and it set certain conditions on Breland in order to carry out the wetlands-fill project, including purchasing mitigation credits and setting aside a certain portion of the property for use by Weeks Bay Watershed Protective Association, Inc.

In July 2003, Breland purchased the mitigation credits required by the Corps permit for $143,144.' Breland also hired engineers and consultants.for the fill project sometime during this period before he began actual filling activity. In October 2005, the Corps extended Breland’s permit to November 2008. Breland also obtained an extension on his water-quality certification from ADEM.

At the time Breland applied for and obtained the Corps permit in 2002, Fair-hope had in place Ordinance 1000, which provided that “[n]o person, firm or corporation shall engage in any -land disturbing activity within the City until the land owner shall have obtained a permit therefor from the City of Fairhope.” The parties agree that Ordinance 1000 was inapplicable to= Breland’s fill project because the property was located outside Fairhope’s city limits.

On August 28, 2006, Fairhope adopted Ordinance 1313. Ordinance 1313 provided, in pertinent part:

“Section A: Purpose
“The purpose of this ordinances is to protect the water quality and environmental integrity for the area watersheds, streams, rivers, lakes, tributaries, and wetlands. The purpose is to be accomplished specifically by, limiting the use of clays and red soils which may harm aquatic plants or marine life from being used in Flood zones, potential floodways, coastal frontages, and water-' ways.
“Section C:
“1. No person, firm or corporation shall commence to filling activity within the City Permitting Jurisdiction[] until the 'land owner or contractor has obtained a land disturbing permit from the City of Fairhope. Where a building permit application is received prior to commencement of land disturbing activities, the required land disturbance permit may be incorporated therein as a special condition of such building permit.
“2. Commencement of Work: No person, firm, or corporation shall bring into the Watershed areas any fill máterial that has more than 10% red or clay.
“3. Maintenance of Control Measures: It shall be the responsibility of the permit-tee to ensure compliance.
“Failure or refusal to comply shall be cause for the City, through its enforcement officers, to issue orders suspending-all work. :<•
“6. Penalties: Any person violating the provision of this ordinance shall, upon conviction thereof, be fined a sum of not less than $100 nor more than $500 and, in addition thereto, may be sentenced to the City Jail for a term of not more than 6 months.”

The parties agree that Ordinance 1313 applied to properties located within the police jurisdiction of Fairhope. Ordinance 1313 was repealed and replaced by Ordinance 1423 on May 24, 2010. Ordinance 1423 is more detailed than Ordinance 1313, but it contains the same basic requirements and prohibitions.

In December 2007, Breland deeded approximately 39 acres of the property to Weeks Bay Watershed Protective Association, Inc., fulfilling another condition of the Corps permit. In March 2008, Charles Breland began preparations on the property for the fill project. He started by using heavy machinery to clear an entrance to the interior of the property. In an affidavit Charles Breland executed for the present action on April 24, 2014, he testified that, “[a]t the time filling on the Property was initiated in March of 2008,1 intended to fill the Property with material which would have been in compliance with Ordinance 1313.” •

On March 27, 2008, the “Building Official Zoning Enforcement Officer” for Fair-hope issued a “stop-work” order on the property. The stop-work order advised that Breland was required to obtain a “land-disturbance permit” for “anything beyond bush hogging.” The stop-work order did not state what municipal ordinance Breland had allegedly violated. Pursuant to the stop-work order, Breland ceased his filling activity.

On April 15, 2008, Breland applied to Fairhope for a land-disturbance permit to “fill mitigated'land.” The permit application did not specify what kind of fill material Breland planned to use for his filling activity.

On June 9, 2008, Fairhope adopted Ordinance 1363. That ordinance ■ instituted a moratorium on the “issuance of land disturbance permits by the City” until October 15, 2008. Ordinance 1363 stated that the purpose of the moratorium was “the preservation of wetlands.” It. also stated that “a moratorium of limited duration and limited scope would be in the public interest and promote orderly growth and development.”

Because Breland’s Corps permit was due to expire in November 2008,. Breland filed an action in the Baldwin Circuit Court on August 8, 2008, against Fairhope seeking a judgment declaring that the permit application he filed in April 2008 should'be granted and‘seeking injunctive relief against the effect of Ordinance 1363. Fairhope- filed a motion to dismiss Bre-land’s complaint. In October 2008, Bre-land obtained an extension of the Corps permit through November 20, 2013. On November 12, 2008,. Breland voluntarily dismissed his .action against Fairhope because the moratorium had expired.

On October 13, 2008, Fairhope adopted Ordinance 1370, which required persons engaging in “wetlands..filling activity” either, in the ¡ city limits or in the police jurisdiction to obtain a land-disturbance permit from Fairhope. Specifically, Ordinance 1370 provided, in pertinent part:

“Section 1: Findings of Fact
“The City Council of the City of Fair-hope (‘the City Council’) determines that many of the Wetlands (hereinafter defined) within the City and the Permitting Jurisdiction (hereinafter defined) have-already'been lost due to drainage or fill. The -loss of Wetlands has increased downstream water pollution, flooding,'and erosion and resulted in the ■loss of wildlife habitat. This ordinance is being adopted to conserve and* protect remaining Wetlands and other water resources.
“Section 2: Purposes
“The purpose of this ordinance is to protect'the health, safety, and general 'Welfare of the residents of the City and the' Permitting Jurisdiction, which specifically includes the following: (a) protection of the quality and quantity of all Wetlands and'water’s
“Section 4; Wetlands Regulated by This Ordinance
“All Wetlands within the Permitting Jurisdiction are subject to regulation by this ordinance ....
“Section 6: Activities Requiring a Permit
, “No person shall fill, excavate, dredge, clear-cut or partially clear-cut timber ‘from, mow grass within, drop any materials in, drain, alter or otherwise conduct any Regulated Activity without a permit ■issued by the Department in accordance with this ordinance within (a) any Wetland ....
“Section 15: Nonconforming Uses
“All uses and activities that were lawful before the passage of this ordinance but which do not conform with the provisions of the ordinance may be continued but may not be expanded, changed, enlarged or altered without a permit as provided above. Nonconforming uses including, but not limited to, buildings, shall not be enlarged or expanded to further encroach into any Wetland. Nonconforming activity which has been discontinued for more than one year shall not be resumed.
“Section 18: Enforcement and Penalties “Any person who commits, takes part in, or assists in any violation of any provision of this ordinance is guilty of a misdemeanor and may be fined not more than Five Hundred and. No/100 Dollars ($500.00) for each offense and subject to imprisonment not exceeding six (6) months or both. Each violation of this ordinance shall be a separate offense, and in th case of a continuing violation, each day’s continuance thereof shall be deemed to be a separate and distinct offense.”

Charles Breland testified that after he dismissed his lawsuit against Fairhope “there [were] conversations that the city [initiated] about buying the property.” Fairhope asserts that there is no evidence of discussions about its buying the property before 2010 and then the discussions involved only one member of the Fairhope City Council. Breland notes that the record shows that the negotiations also involved at least Fairhope’s planning director.

On August 10, 2009, Fairhope repealed and replaced Ordinance 1000 with Ordinance 1398. Ordinance 1398 provided, in pertinent part:

“II. Jurisdiction
“This provisions of this ordinance shall apply to all lands within the permitting jurisdiction of the City of Fair-hope.
“HI. Purpose
“... [T]he purpose of this regulation is to safeguard persons, protect property, prevent damage to the environment and promote the public welfare by guiding and regulating the design, construction, use, and maintenance of land disturbance in the City of Fairhope.
“IV. Definitions
“Land Disturbance—For purposes of this article, any grading, filling, draining, excavating, ditching or other earth-moving operation which could result in damage to adjacent lands, public or private, from erosion thereto or siltation thereof shall be deemed land-disturbance activity.
“V. Permits
“No person, firm, or corporation shall engage in any land disturbance activity within the city permitting jurisdiction until the landowner has obtained a permit therefore from the city. ...”

According to Breland, by late 2011, he got the impression that Fairhope had been negotiating with him to buy the remainder of the property under false pretenses and that Fairhope actually was trying to delay Breland from resuming the fill project until the Corps permit expired. Thus, on November 3, 2011, Breland resumed filling activities on the property. On the same day, Fairhope issued another stop-work order. In a letter from a Fairhope building official to Breland dated November 8, 2011, Fairhope stated that the stop-work order was issued because Breland was required to obtain a permit under Ordinance 1398 before land-disturbance activity on the property could be resumed. The letter also stated that Breland needed “to be compliant with Wetland Ordinance 1370 and Red Soil Ordinance 1423 in order to bring fill into parts of this area.” Fairhope also issued a criminal citation to Charles Breland, charging him with failing to obey a city ordinance. Fairhope later agreed to nol-pros the enforcement of the criminal citation in exchange for an assurance from Breland that he would not engage in further filling activities before he obtained the appropriate permits to do so. Once again, Breland stopped his filling activity.

On January 10, 2013, Breland gave Fair-hope notice of a claim against it. On August 7, 2013, Breland filed a complaint against Fairhope in the Baldwin Circuit Court. Before Fairhope filed an answer, Breland filed an amended complaint. The complaint, as amended, asserted six counts against Fairhope.

The first count of Breland’s amended complaint sought a temporary restraining order and a preliminary injunction against Fairhope’s attempts to stop the fill project. The second, third, fourth, and sixth counts of the complaint sought declaratory relief. Specifically, Breland requested a judgment declaring that “Breland is entitled to fill the Property without gaining further approval from the City of Fairhope.” Breland contended that “[njeither Ordinance 1000, ... Ordinance 1313, Ordinance 1398, nor Ordinance 1370 has any legal effect on Breland’s right to fill under the [Corps] Permit.”

In another count seeking declaratory relief, Breland asked for a judgment declaring that “[a]ll ordinances enacted by the City of Fairhope which purport to regulate the filling of wetlands, or the discharge of material into the waters of the United States or the State of Alabama, are void because they conflict with state law, and are preempted by ADEM’s regulatory authority.” In that claim, Breland contended:

“Fairhope’s attempts to regulate, filling are void for two interrelated reasons. First, such regulation is preempted by State environmental statutes providing for ‘a unified environmental regulatory and permit system’ within the state of Alabama. Second, Fairhope’s ordinances are void and unenforceable to the extent that they purport to regulate filling activity which has been authorized by.federal and state law.”

Another of Breland’s claims requested a judgment declaring that Charles Breland was entitled to an expungement of his criminal citation pursuant to § 41-9-646, Ala. Code 1975.

Finally, in “Count V” of his complaint, Breland asserted a claim for money damages based on alleged negligence by the City:

“66. At all times material to this case, the City of Fairhope, and/or Fictitious Defendants A through F, have owed [Breland] a duty to act prudently, and to properly and diligently issue permits in the event any such permits were due to be issued.
“67. The City of Fairhope, and/or Fictitious Defendants A through F, also owed [Breland] a duty not to baselessly deny or delay activity which is otherwise permitted.
“68. The City of Fairhope, and/or Fictitious Defendants A through F, breached these duties by negligently, carelessly and unskillfully handling their municipal functions. Specifically, these entities treated Breland’s obvious right to fill the Property with flippant disregard, and continuously delayed and ignored Bre-land’s right to fill the Property.
“69. The City of Fairhope, and/or Fictitious Defendants A through F, .continue to breach these duties by refusing to recognize [Breland’s] legal rights to fill, and by maintaining that [Breland] must comply with the ordinances addressed herein] [Fairhope’s] conduct, from 2002 to the present date, amounts to a single sustained attempt to prevent the lawful filling of the Property.
“70. As a result of [Fairhope’s] wrongful actions, [Breland has] suffered, and continue[s] to suffer, money damages which flow from this eleven-year battle with the City of Fairhope.”

In April 2014, the parties jointly moved for dismissal of Breland’s claim in count I for a temporary restraining order and a preliminary injunction. They also requested .that the court conduct a trial on Breland’s declaratory-judgment claims before addressing Breland’s negligence claim. On April 17, 2014, the trial court entered an order consistent with the parties’ wishes. In explaining that the trial on the negligence claim for damages would be bifurcated from the trial on Breland’s declaratory-judgment claims, the trial court explained:

“[Resolution of the Declaratory Judgment Claims may, under certain circumstances, moot the necessity of a trial on the negligence claim, and bifurcation is thus in the interest of convenience, expedition and economy.
'■ “... In the event that [Breland is] the non-prevailing partly] on the Declaratory Judgment Claims (after appeal, if any), then [Breland] stipulate^], and the Court agrees, that the Fifth Cause of Action for negligence and damages will be moot and will then be dismissed with prejudice. In the event that- [Fairhope] is' the non-prevailing party on the Declaratory Judgment Claims after appeal (if appeal is taken), then the Court will allow a reasonable time for discovery and will schedule the negligence claim under the Fifth Cause of Action for trial.”

On April 14, 2014, Fairhope filed a motion for a partial summary judgment concerning the declaratory-judgment claims; Fairhope asserted, among other defenses, the applicable statute of limitations. On April 25, 2014, Breland filed his own motion for a partial summary judgment as to the same claims.

On May 6, 2014, the trial court entered an order granting a summary judgment in favor of- Fairhope as to counts two, three, four,-and six of the amended Complaint based on what it deemed to be the. applicable statute of limitations. The trial court explained its reasoning as follows:

“1. The Court finds no specific Alabama Statute establishing the applicable Statute of Limitations for Declaratory Judgment claims filed in Alabama State Courts. Neither does the Court find that Declaratory Judgment Actions, per se, fell within the provisions of the Alabama two (2) year catch all Statute of Limitations period found in Code of Alabama [1975,] § 6-2-38. Instead, the Court finds that the Statute of Limitations for Declaratory Judgment actions is the same as the Statute of Limitations for the underlying or associated claim from which the Declaratory Judgment action is derived (i.e., contract, tort, etc).
“2. The Statute of Limitations for a Declaratory Judgment .action must be derived from the applicable Statute of .Limitations for the underlying claim. Likewise, the Statute of Limitations for the underlying claim cannot be derived from the Declaratory Judgment claim. To do otherwise would effectively toll the Statute of Limitations for the underlying claim until, the Declaratory Judgment action is ruled on by the Court. To do otherwise would also» create inconsistent Statute of Limitations periods for the underlying claim and the companion Declaratory Judgment claim. Here, negligence is the underlying or associated claim which' gives rise to the Plaintiffs Declaratory Judgment actions. Consequently, [Breland’s] negligence claim in the instant case is subject to a well-established two-year Statute of Limitations period. Based upon the foregoing, the Court finds that [Breland’s] Declaratory Judgment claims are subject to the same two-year Statute of Limitations period.
“3. Having determined that the Plaintiffs Declaratory Judgment claim in the instant case is subject to a two-year Statute of Limitations period, the Court must also determine whether the current cause pf action was timely -filed within the applicable two-year Statute of Limitations period. In so doing,. the Court has viewed the facts in a light most favorable to [Breland] and determined that [Breland] knew of the alleged misconduct by [Fairhope] not later than August 8, 2008, when he filed his original complaint in the Circuit Court of Baldwin County in Case Number CV-2008-900854 (a-copy of which is attached herewith and made a part of and incorporated herein by reference). [Breland’s] original complaint was subsequently dismissed without prejudice on November 12, 2008. Thereafter, [Breland] filed his current, cause of action nearly five years later on August 7, 2013.
“4. Even', assuming that. [Breland] learned of [Fairhope’s] alleged misconduct as late as August 8, 2008, when he filed his original complaint, his current cause of action filed on August 7,- 2013, would have been filed outside of the applicable two year Statute of Limitations period. Therefore, the Court finds that [Breland’s] Declaratory Judgment claims are barred by the Statute of Limitations.
“Based upon the foregoing, Summary Judgment is entered in favor of-[Fair-hope] -and.against [Breland] to Counts II, III, IV, and VI of the Complaint. Summary Judgment having been entered in favor-of [Fairhope] on Counts II, III, IV, and VI of [Breland’s] Complaint, the Court dismisses Count I of the complaint with prejudice in accordance with the prior order of the Court dated April 17,2014.”-

Subsequently, Breland moved the trial court to enter the May 6, 2014, order as a final judgment, and he- submitted a proposed order that invoked Rule 54(b), Ala. R. Civ. P. On May 30, 2014, the trial court adopted the order submitted by Breland as follows:

“This Court’s Consent Order of April 17, 2014, estáblishéd that [Breland’s] sole remaining claim (for negligence and money damages) is to be dismissed with prejudicé in the event [Breland was] the non-prevailing parity] on [his] Declaratory Judgment Claims ([Breland’s] Second; Third, Fourth and Sixth Causes of Action). Thus, this' Court’s Order of May 5,2014, granting Partial Summary Judgment in favor of Fairhopé on [Breland’s] Second, Third, Fourth and Sixth Causes of Action disposed.of this case in, its entirety, subject to further rulings which may be made on appeal. As a result, no claims remain pending for adjudication before this Court .... ”

Breland timely appealed to this Court.

II. Standard of Review

“Our- standard of review for a summary judgment is as follows:

“ ‘We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006). Once the summaryrjudgment movant shows there is- no genuine ' issue of material fact, the non-movant must then present substantial evidence creating a genuine issue of material fact. Id. “We review the evidence in a light most favorable to the nonmovant.” 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).’ ”

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 793 (Ala.2007) (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006)).

III. Analysis

We begin by noting that, based on statements from Fairhope in its brief and from Breland in his reply brief, there appears to be no dispute that the trial court adjudicated all claims against all parties. Accordingly, the judgment appealed from is a final judgment. We agree that the trial court did indeed dispose of all of Breland’s claims against Fairhope, the only named defendant before the trial court.

As for his declaratory-judgment counts—Counts II, III, IV, and VI—Bre-land argues, among other things, that “[t]here is no time limit on [his] claims which challenge the underlying validity of the city ordinances.” Citing Edwards v. Allen, 216 S.W.3d 278, 293 (Tenn.2007), Breland argues that the ordinances at issue were invalid from their inception and that they continue to burden his use of his own land.

Fairhope disagrees with Breland’s position as to the declaratory-judgment claims. In its brief to this Court, Fairhope specifically rejects the -notion that a “continuing tort” or continuing trespass of some type is occurring so as to make a statute of limitations inapposite. Fairhope contends that a two-year statute of limitations, running from its 2008 stop-work order, should apply to cut 'off all ■ of Breland’s claims relating to Fairhope’s conduct.

Breland has the better of these arguments. Under the particular circumstances presented in this case, Breland’s challenge to the validity of the permitting ordinances, which present a current and ongoing infringement of his property rights, is not barred by a statute of limitations. In this case, it is not the enactment of the ordinances or some particular instance of the enforcement of one of them against Breland in the past that is the gravamen of his declaratory-judgment claims, and measuring a limitations period from one of those events thus makes no sense: If Bre-land is unlawfully restrained at the present time—and going forward—in' his use or enjoyment of his property by the current and threatened future enforcement of one or more such ordinances, it is that fact that his declaratory-judgment claims seek to address.

In Edwards, a landowner complained that a zoning measure allowing objectionable commercial activities on adjacent land was invalid and should not'be enforceable by the adjacent landowner. The Tennessee Supreme Court held that the zoning measure was in fact void as having been improperly advertised and, accordingly, it ‘confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’ ” Id. at 289 (quoting Norton v. Shelby Cty., 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178 (1886)). The court held that the plaintiffs action’seeking a declaratory judgment to that effect was not barred by a statute of limitations.

The principle underlying Edwards was reflected in the New York appellate court’s decision in Amerada Hess Corp. v. Acampora, 109 A.D.2d 719, 486 N.Y.S.2d 38 (N.Y.App.Div.1985). As that court explained: “ ‘[N]o period of limitation at all is applicable to an action for a declaratory judgment ... in cases involving a continuing harm, such as the application of an invalid statute.’” 109 A.D.2d at 722, 486 N.Y.S.2d at 41 (quoting 1 Weinstein-Korn-Miller, NY Civ. Prac. ¶ 213.02). See also Davis v. Rosenblatt, 159 A.D.2d 163, 168, 559 N.Y.S.2d 401 (N.Y.App.Div.1990).

In discussing Amerada, the court in Collateral Loanbrokers Ass’n of New York, Inc. v. City of New York, 47 Misc.3d 1225(A), 18 N.Y.S.3d 578 (N.Y.Sup.Ct.2015) (table) (unreported disposition), explained:

“[I]n Amerada Hess Corp., the court held that plaintiffs challenge to the eon-
stitutionality of the Town Board’s decision denying his application for the rezoning of certain parcels of his land was an unconstitutional confiscation of property via a restrictive zoning ordinance (id. at 721). Because the court held that such denial harmed plaintiff every day, the court concluded that the six year statute of limitations urged by defendant, purportedly accruing on the date of the initial denial, was inapplicable because defendant’s conduct constituted a continuing harm (id., at 722). Specifically, the court adopted the holding in Mac-Ewen v. City of New Rochelle (149 Misc. 251 [Supreme Court Westchester County 1933]), which held that an unconstitutional ordinance until its repeal or a judicial declaration of its invalidity, the . same constitutes at least the equivalent of a continuing invasion of plaintiffs property rights akin to a continuing trespass—a situation in which a new cause of action arises in plaintiffs favor against the defendant city each day (id. at 254; see Dowsey v. Village; of Kensington, 257 N.Y. 221, 228, 177 N.E. 427 [1931]).”

In City of Fernley v. State Department of Tax, 366 P.3d 699 (Nev.2016), the Nevada Supreme Court explained:

“Although some courts have held that the statute of limitations does apply to declaratory relief, those issues involved a personal injury and not a constitutional challenge to the prospective application of an assertedly invalid statute) See, e.g., Snyder v. Cal. Ins. Guarantee Ass’n, 229 Cal.App.4th 1196, 177 Cal.Rptr.3d 853, 861 (2014) (seeking declaratory relief to determine if money is owed to plaintiff); Hill v. Thompson, 297 S.W.3d 892, 898 (Ky.Ct.App.2009) (prisoner. seeking declaratory relief that his due, proces.s rights were violated when he did not r,eceive awards of meritorious . good time credit).”

Id. at 707 n. 5 (emphasis added).

In National Advertising Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir.1991), the United States Court of Appeals for the Fourth Circuit explained an earlier ruling:

“In Virginia Hospital Ass’n v. Baliles, [868 F.2d 653 (4th Cir.1989),] we affirmed a district court opinion holding that ‘[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations.’ 868 F.2d at 663 (emphasis added). There, we held that plaintiff s claim that Virginia’s procedures for reimbursing hospitals for the cost of treating Medicaid patients violated the Medicaid Act, 42 U.S.C.A. §§ 1396 et seq., although brought four years after adoption of the procedures, was not barred- by Virginias applicable two-year statute of limitations. This conclusion rested on the holding that ‘the limitations period cannot protect an allegedly unconstitutional program.’ Id.”

Id. at 1167. See also Wallace v. New York, 40 F.Supp.3d 278, 302 (E.D.N.Y.2014) (explaining that “the clock on any challenge to the constitutionality of a statute, whose continued application works an ongoing constitutional violation, starts to run anew, every day that the statute applies”).

In contrast to his declaratory-judgment claims, which seek, to correct the current and ongoing interference of the city in Breland’s use and occupancy of his land, Breland’s Count V is backward-looking, requesting damages stemming from one or more specific actions by Fairhope in the past that interfered with Breland’s use of his property. The distinction between that type of claim and declaratory-judgment claims like Breland’s that seek relief from the ongoing burden imposed by Fair-hope’s ordinances was explained by the Michigan Supreme Court in Taxpayers Allied for Constitutional Taxation v. Wayne County, 450 Mich. 119, 128-29, 537 N.W.2d 596, 600-01 (1995), a case involving the validity of a local tax measure:

“[Tjhere appear to be two actual coñtro-versies .... The first is whether plaintiff may obtain a refund for taxes paid in the past. The second is whether potential class members who are currently residents of Wayne County must pay the increased tax in the future.
“For purposes of the first controversy, the statute of limitations would prevent the plaintiff from obtaining a judgment declaring that defendant must refund taxes paid more, than one year, before the date the suit was filed. ...
“For purposes of the second controversy—whether members of the potential class who are currently Wayne County property owners must pay the increased tax in the future—the statute of limitations would not bar an otherwise valid claim for declaratory relief because it would derive from a claim for injunc-tive relief, which is not barred. See part 11(B), p. 600.”

450 Mich. at 128-29, 537 N.W.2d at 601.

Based on the foregoing, we agree with Breland that his requests for prospective relief as expressed in his declaratory-judgment claims are not barred by a statute of limitations. As to Count V, however, Fair-hope posits, and the trial court determined, that a two-year statute of limitations applies.' Most of Breland’s argument regarding the statute of limitations is concerned with his declaratory-judgment claims; he makes no meaningful argument supported by authority that a two-year statute of limitations should not apply to Count V. Having no persuasive basis on which to overturn the decision of the trial court in this regard, we apply a two-year limitations period to Count V.

We turn then to the issue whether the stop-work order issued' by Fairhope in 2011 is a discrete act for purposes of applying the applicable statute of limitations to Count V, or whether the limitations period ran from Fairhope’s similar actions before 2011, including the 2008 stop-work order.

Breland contends that, if the two-year limitations period of Ala. 'Code 1975, § 6-2-38(1), applies, his claim for monetary relief as a result of harm caused by Fair-hope’s 2011 stop-work order accrued within that two-year period. He contends that his claim for such damages would not be cut off by the fact that the similar conduct by Fairhope in 2008 falls outside that period because, according to Breland, the 2011 exercise of municipal power- by Fairhope constituted a “discrete act” of actionable conduct by Fairhope within the statutory period.

As noted, Fairhope takés the position that the two-year statute of limitations runs from the issuance of Fairhope’s 2008 stop-work order and that, therefore, Bre-land’s claim for damages is foreclosed. To Fairhope, the 2011 stop-work order merely represents a reiteration of its previous enforcement of the ordinances rather than a new, separately actionable wrong..

Breland has the better of this argument as well. Breland rightly analogizes the situation here to facts presented in Baugus v. City of Florence, 985 So.2d 413 (Ala.2007). In Baugus, the plaintiff landowners sought damages allegedly resulting from the City of Florence’s operation of a landfill near their properties. The landfill began operation sometime between 1969 and 1972 and was closed in 1987 or 1988. “The decomposition of organic waste material in landfills generates methane, and methane has been consistently, detected at the landfill and in the surrounding areas.” Id. at 416. In March 2002, the landowners informed the City of Florence of their intent to file an action for damages stemming from the migration of methane from the landfill onto their properties.

The City of Florence contended that the landowners’ claims of nuisance, negligence, and trespass based on Florence’s alleged negligent maintenance of the landfill, were barred by the applicable statute of limitations because “the claims accrued, if at all, more than eight years before the landowners notified the City , of their claims.” 985 So.2d at 418. This position by the City of Florence was based on the fact that methane was first detected on the landowners’ properties in 1994. The landowners took the contrary position that there existed a

“continuous and ongoing migration of methane from the landfill, which ... does not continue solely because of the previously completed activity of the City in depositing waste, but because of the City’s negligent maintenance of the landfill site in the years after it had ceased to deposit waste at the landfill.”

985 So.2d at 419.

The Baugus Court decided the statute-of-limitations issue in favor of the landowners:

“We conclude that the landowners’ tort claims do not arise from the installation of the landfill, but from the continuous migration of methane onto their' properties as a result of the City’s maintenance and ongoing operation of the landfill for a public purpose subsequent to its closure. The landowners’ tort claims of nuisance, negligence, and trespass accrue each time the City’s maintenance and ongoing operation of the landfill causes methane to migrate onto the landowners’ property and, thus, those claims are not time-barred.”

985 So.2d at 421.

Under the circumstances of this case, each time Fairhope enforced its ordinances to stop Breland from filling activity on his property Fairhope committed a new act that serves as a basis for a new claim. Fairhope’s last stop-work order was issued in November 2011; Breland filed this action on August 7, 2013. Accordingly, the two-year statute of limitations does not bar a claim for. damages stemming from the 2011 stop-work order.

Conclusion

Based on the foregoing, the summary judgment entered by the trial court against Breland on statute-of-limitations grounds is reversed. This cause is remanded for further proceedings.

1131057—REVERSED AND REMANDED.

1131210—REVERSED AND REMANDED.

Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ., concur.

      . The parties agree that the term "permitting jurisdiction” is • synonymous with "police ju-risdiclion.”

      . Fairhope states in this motion that it denied Breland’s application because the application was incomplete on its face.

      , In early 2011, ADEM extended its water-quality certification to expire at the same time as the Corps permit

      . In September 2013, the Corps extended Breland's permit to require that filling activity be completed by November 2016. ADEM issued a similar extension.

      . Section 41-9-646 concerns purging, modification, or supplementation of criminal records, and it provides, in part, that "[s]hould the record in question be found to be inaccurate, incomplete or misleading, the court shall order it to be appropriately purged, modified or supplemented by an explanatory notation.”.

      . Breland has’ informed us in a supplemental - filing that in November 2015 he filed with' the Corps • a request that it extend his permit through November 2018.

      . Neither Edwards nor this case involves long-standing compliance with or reliance upon an invalid ordinance such as might bar a challenge to it, for example, under principles of estoppel or laches. See Strickland v. Newton Cty., 244 Ga. 54, 55, 258 S.E.2d 132, 133 (1979) (noting that the general rule that an unconstitutional statute is wholly void and of no force and effect from the day it was enacted is subject to exceptions where, because of the nature of the statute and its previous application, unjust results would accrue to those who justifiably relied upon it) (cited in Edwards). See also note 9, infra.

      . The Court of Appeals also explained that a different result was reached in Ocean Acres, Ltd. v. Dare County Board of Health, 707 F.2d 103, 105 (4th Cir.1983), where the "continuing wrong” exception was found not to apply-based in part on the nature of .the wrongful conduct and harm alleged, In contrast to the present case, the court in Ocean Acres ultimately concluded that the plaintiff's allegations of harm focused " 'on the initial actions taken by defendants, not on a continuing course of conduct.' " Id. at 1167 (quoting Ocean Acres, 707 F.2d at 106 (emphasis added)).

      . Although we conclude that a statute of limitations is not applicable to -the declaratory-judgment claims in this case, we do not foreclose the possibility that under different circumstances a delay in asserting one’s rights could give rise to a bar. This is not such a case, however. As the- Edwards court explained:
      "This record, therefore, does not establish the requisite public or private reliance for an exception to the application of the void ab initio doctrine. There has been no indication of either longstanding acquiescence or extensive public reliance on the ordinance at issue. In order to invoke the exception to the doctrine, equitable principles must favor the party relying upon the validity of the ordinance. That reliance must be apparent and the expense must be significant.”
      Edwards, 216 S.W.3d at 293. See note 7, supra.

      . Breland argues without supporting authority that the six-year limitations period prescribed in Ala. Code 1975, § 6-2-34(6), for "actions for the use and occupation of land" applies to a claim to vindicate his use and occupation of his own land. But see Hamilton v. House, 6 Ala.App. 86, 89, 60 So. 429, 430 (1912) (referring to a plaintiff’s claim for redress of a defendant's use or occupancy of the plaintiffs land); 2 Alabama Pattern Jury Instr. Civ. 36.70 (3d ed. 2013) ("An action for use and occupation is where the plaintiff, an owner, landlord, or person rightfully in possession of real property is attempting to recover a reasonable satisfaction for the use and occupation of his land by the defendant.”). Also, compare Ala. Code 1975, §§ 6—2—34(l)-(5) and (7)-(8) (prescribing six-year limitations periods for "actions for” the wrongful acts of defendants, e.g., "actions for any trespass to person or liberty” as referenced in § 6-2-34(1)). The catch-all two-year limitations period under § 6-2-38(1) arguably would be applicable to Count V if it were viewed as a claim in the nature of inverse condemnation. See McClendon v. City of Boaz, 395 So.2d 2124 (Ala. 1981) (addressing accrual of limitations period for an inverse-condemnation action and taking note of the two-year limitation on the presentation of claims to a municipality prescribed in Ala. Code 1975, § 11-47-23); See generally Town of Gurley v. M & N Materials, Inc., 143 So.3d 1, 13 (Ala.2012) (“We also note that M & .N could have asserted its inverse-condemnation claim, which is based upon the administrative and regulatory actions of . the town, pursuant to the Just compensation Clause."); Palm Beach Isles Assocs. v. United States, 231 F.3d 1354 (Fed.Cir.2000) (holding that permit denial constituted a categorical talcing); and Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.Cir.1994) (holding that denial of permit under section 404 of the CWA was a talcing).

      . See generally notes 7 and 9, supra.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    EQUITY TRUST COMPANY, as custodian f/b/o David E. Hudgens IRA #41458, et al. v. Charles K. BRELAND et al. Charles K. Breland et al. v. Equity Trust Company, as custodian f/b/o David E. Hudgens IRA #41458, et al.
    1150302 and 1150876
    Supreme Court of Alabama.
    February 17, 2017

      Lee L. Hale, Mobile; Irvin Grodsky, Mobile; Braxton L. Kittrell, Jr., Mobile; and David E. Hudgens of Hudgens & Associates LLC, Daphne, for appellants/cross-appellees Equity Trust Company, as custodian f/b/o David E. Hudgens IRA #41458, Hudgens & Associates LLC, and. David E. Hudgens.
    Algert S. Agricola, Jr., of Ryals, Donaldson & Agrícola, P.C., Montgomery; John H. Adams and Cecily M. Welsh of Emmanuel, Sheppard & Condon, Pensacola, Florida; and J. Michael Druhan of Satterwhite, Druhan, Gaillard & Tyler, LLC, Mobile, for appellees/cross-appellants Charles K, Breland, Gulf Beach Investment Company of Perdido, LLC, and Grand Oaks Plantation, LLC.
   BRYAN, Justice.

Facts and Procedural History

Charles K, Breland is a developer of real property who, through his ownership of multiple companies, has owned and developed real property in Alabama and Florida. In 2002, Breland hired David E. Hud-gens to provide legal services for him and his companies. According to Hudgens, Bre-land informed him early during their professional relationship that he “was suffering significant cash flow problems.” As a result, Hudgens says, the various law firms with which Hudgens worked while providing Breland and his companies with legal services delayed billing “a significant portion of the attorneys’ fees and costs” for those services. Breland disputes that contention and claims that he and/or his companies paid Hudgens,more than $2.7 million for Hudgens’s legal services between 2004 and 2010. According to Hud-gens, Hudgens & Associates, LLC (“H & A”), is “the holder of the rights to the attorney’s fees” allegedly incurred by Bre-land and his companies over the course of Hudgens’s representation of Breland.

Hudgens also contends that in 2004 Bre-land informed him that Shores of Panama, Inc. (“Panama”), one of Breland’s companies, had insufficient funds to begin a condominium project in Florida. As a result, Hudgens caused Equity Trust Company (“ETC”), as custodian for the benefit of Hudgens’s individual retirement account #41457 (“IRA #41457”) and individual retirement account # 41458 (“IRA #41458”), to loan Panama $390,000 and $80,000 from those IRAs, respectively, so that Panama could begin the project. Bre-land guaranteed payment of those loans in separate promissory notes.

On March - 11, 2009, Breland filed a Chapter 11 bankruptcy petition (“the Bre-land bankruptcy”) in the United States Bankruptcy Court for the Southern District of Alabama (“the bankruptcy court”). Breland subsequently filed the required schedules, required disclosure statement, and a proposed plan ’ of reorganization that identified H & A as an unsecured creditor' holding a $1 million claim . and identified ETC as an unsecured creditor holding a $390,000 claim. On May 3, 2010, Hudgens filed a proof of claim in the Bre-land bankruptcy on b.ehalf of H. & A for “legal fees” in the amount of $2,334,987.08 and filed proofs of claim on behalf of ETC for “guaranty of note” in the amounts of $879,929.55 (as to IRA #41457) and ,$180,498.37 (as to IRA # 41458). According to Hudgens, Breland telephoned him on May 4, 2010, and “berated [him] and complained vociferously about the H & A proof of claim, including claiming that it was fraudulent.” Later that day, Breland informed Hudgens in writing that he was “shocked” that Hudgens had filed claims in the Breland bankruptcy alleging that Bre-land had “outstanding legal bills .,. amounting to several million dollars” and asked Hudgens to provide him with-itemized billing of those fees. On October 1, 2010, Breland amended his disclosure statement and proposed plan of reorganization to reflect that the H & A and ETC claims were disputed but that settlement negotiations were then ongoing.

, On December 6, 2010, Breland and Oha-na Cabo, LLC (“Ohana Cabo”), a creditor in the Breland bankruptcy, filed with the bankruptcy court a proposed plan of .reorganization (“the Plan”), The Plan provided that “each holder of an allowed unsecured claim” would be paid in full and identified ETC as custodian of IRA # 41457 and of IRA #41458 as a “holder[] with agreed allowed amounts” of $879,929 and $180,498, respectively. The Plan also provided that “holders of unsecured claims” that were not identified as “holders with agreed allowed amounts,” a group,'that included H & A, held claims that were disputed and that Breland was preserving his objection to those claims. However, it appears that, later that day, Breland and Hudgens reached a settlement of the-H <& A and ETC claims, the terms, of which are set forth in a December 6, .2010, e-mail from Robert Galloway, Breland’s attorney, to Hudgens:

“David, this letter will confirm our settlement of your claims. We will allow your, claims for your retirement plans in the full amount of $1,080,000. With regard to your fees, we have agreed to a claim of $1,500,000 to be evidenced by a note and mortgage on the Grand Bay property due [in] one year with 6% interest,” ., , . .

(Emphasis added.) It is undisputed that the Grand Bay property, located entirely in Mobile County, consists of 6- distinct parcels of property comprising approximately 508 acres that, at that time, were owned by Breland.

On' December 8, 2010, the bankruptcy court held a hearing regarding confirmation of the Plan. At that hearing, the following colloquy occurred between Galloway and the bankruptcy court.

“MR. GALLOWAY: Judge, I’m proud to announce that we have settled everything,
“MR. GALLOWAY: I might an■nounce some of the things that were said today with Mr. Hudgens.
“THE COURT: All right.
“MR. GALLOWAY: We have reached a settlement of his attorney’s fee claim.
“MR. GALLOWAY: We are going to give him a mortgage on the Grand Bay property. We’ll put this in the order.
“MR. ■'GALLOWAY: Of $1,500,000 which is the additional aínount he has agreed to accept.
“THE COURT: All right.
“MR. GALLOWAY: Now when we— he has his retirement plan claims too.
“THE COURT: Yes, right.
. “MR. GALLOWAY: And we’re going to work with him as to how we apportion the cash, but he will have a mortgage left for $1,500,000—he’s going to get $1,080,000 cash. There’s going to be a mortgage for a million-five; but some of that might be retirement plan and some of it attorney’s fee, depending on how he wants that paid this year versus next year.”

In light of those agreements, on December 10, 2010, Breland and Ohana Cabo filed a proposed amended version of the Plan that added a new provision (hereinafter referred to as “Section 3.2.3”), which provided:

“3.2.3 Hudgens & Associates LLC and Equity Trust Company fbo David E. Hudgens IRA Claims. [The ETC claim on behalf of IRA # 41457] shall be paid $0.00. [The H .& A claim and the ETC claim on behalf of IRA # 41458] shall be Allowed in ■ the cumulative amount of $2,580,000, of which $1,080,000 shall be paid on the Distribution Date .... The $1,500,000 balance, together with" interest from the Confirmation Date at the rate of 6% per annum, shall be paid on or before December 31, 2011[,] in accordance with the terms ... of a promissory note and mortgage to be agreed upon by the parties. The Debtor shall execute and deliver said promissory note and mortgage to his attorney Robert M. Galloway immediately upon confirmation of the Plan. On the Distribution Date, Mr. Galloway shall record said mortgage in the real property records maintained in the Office of the Judge of Probate of Mobile County, Alabama, and shall deliver said promissory note to David E. Hudgens as agent for [H & A] and [ETC] as Custodian for the benefit of David E. Hudgens IRA [#]41458.”

(Emphasis added.)

On December 10, 2010, the bankruptcy court entered an order confirming the Plan, as amended, and Breland subsequently made the initial $1.08 million payment as required by Section 3.2.3. However, on December 23, 2011, approximately one week before Breland was required to make the $1.5 million payment required by Section 3.2.3, John H. Adams, an attorney then representing Breland, sent Hudgens a letter indicating that Breland had potential claims against Hudgens “stemming from events' that transpired while [Hud-gens was acting as Breland’s] counsól” and that the value of those claims would equal or exceed the $1.5 million due under Section 3.2.3. Included with that letter was a copy of. a complaint asserting claims against Hudgens alleging breach of a fiduciary duty and .fraudulent suppression that, Adams said, Breland was prepared to file if he and Hudgens could not reach a resolution of Breland’s claims.

Breland never made the $1.5 million payment required by Section 3.2.3, and, although Hudgens made, he says, “numerous requests” for Galloway to deliver the promissory note and to record the mortgage as required by Section 3.2.3, Galloway neither delivered a promissory note to Hudgens nor recorded a mortgage securing the H & A and ETC claims. As a result, and given his concern that Breland was “selling off a lot of property,” Hud-gens recorded the Plan, as amended, in the Mobile Probate Court on March 5, 2012.

On November 20, 2012, Breland conveyed the Grand Bay property by quitclaim deed to Gulf Beach Investment Company of Perdido, LLC (“Gulf Beach”), a company owned by Breland. Hudgens says that he discovered that conveyance in April 2013, and, upon that discovery, Hud-gens executed and filed in the Mobile Probate Court an affidavit (“the Hudgens affidavit”) in which he stated that the Grand Bay property was the property Breland had agreed under Section 3.2.3 of the Plan, as amended, to mortgage but that, instead of performing his obligations, Breland had transferred the Grand Bay property to Gulf Beach.

On March 6, 2014, H & A and ETC (hereinafter collectively referred to as “the" plaintiffs”) filed in the Mobile Circuit Court (“the trial court”) a complaint against Breland and Gulf Beach in which they brought the following claims: (1) a claim seeking enforcement of the Plan,' as amended, through a judgment ordering Breland to deliver the promissory note to Hudgens and to record a mortgage on the Grand Bay property for the plaintiffs’ benefit; (2) a claim seeking enforcement of the Plan, as amended, through a judgment awarding the plaintiffs $1.5 million, plus interest; (3) a fraudulent-transfer claim seeking a judgment voiding the conveyance of the Grand Bay property to Gulf Beach; enjoining Breland from further conveyances of the Grand Bay property; awarding damages for the allegedly fraudulent transfer of the Grand Bay property; and imposing a constructive trust on the Grand Bay property for the plaintiffs’ benefit; and (4) a claim seeking a judicial foreclosure of the Grand Bay property for the plaintiffs’ benefit. On April 21, 2014, Hudgens filed in the Mobile Probate Court a notice of lis pendens as to the Grand Bay property as required by § 35-4-131(a), Ala. Code 1975.

On April 28, 2014, Adams sent Hudgens a letter that stated, in pertinent part:

“As you will note, the [Plan] expressly stated that ... Breland would provide you with a mortgage the terms of which were to be agreed upon by the parties. In [the Hudgens] affidavit you expressly state that the property in the Gulf Beach deed was the property to be mortgaged. The [P]lan does not describe any property to be mortgaged and there was ho agreement whereby ... Breland agreed to pledge any specific property to secure this obligatioh. As such, by filing [the Hudgens] affidavit you have unilaterally encumbered ... all of the property owned by Gulf Beach ... and likely slandered title to the property.
“While this litigation is pending, you cannot continue to' encumber [500] plus acres of property which was never intended to be encumbered and which has a" value well in excess of your alleged claim of $1,500,000.”

On May 21, 2014, Breland and Gulf Beach filed an answer and a counterclaim against the plaintiffs and a third-party complaint against Hudgens in which they claimed that Breland had refused to make the $1.5 million payment required by Section 3.2.3 because, they said, the plaintiffs and Hudgens “knew that the ... proofs of claim [filed in the Breland bankruptcy] were false” and .because, they said, - Bre-land “had become aware of certain fraudulent activities conducted by Hudgens, H & A, and [ETC] and raised these events as set offs to any amounts remaining to be paid.” Given those allegations and the filings of the Hudgens affidavit and the notice of lis pendens, Breland and Gulf Beach brought the following claims against the plaintiffs and Hudgens: (1) a fraud claim and a breach-of-contract claim seeking a judgment “cancelling all obligations of Breland that are set forth in the Plan” and awarding Breland $1.08 million in damages—the amount Breland had previously paid in accordance with Section 3.2.3; (2) a slander-of-title claim; and (3) a quiet-title claim seeking a judgment quieting title to the Grand Bay property in favor of Gulf Beach.

On September 8, 2014, the plaintiffs and Hudgens filed a motion for a partial summary judgment as to the plaintiffs’ “enforcement” claims and as to Breland and Gulf Beach’s fraud, breach-of-contract, and slander-of-title claims. That same day, Breland and Gulf Beach filed a “motion to cancel and modify notice of lis pendens and motion' for partial summary judgment” in which they argued that, although Breland had agreed to give Hudgens a mortgage to secure the plaintiffs’ claims in the Breland bankruptcy, he had never specified which property he would mortgage. As a result, Breland and Gulf Beach sought a judgment “quashing, cancelling and removing” the'Hudgens affidavit; modifying the notice of lis pendens so that it encumbered' only parcel 4 of the Grand Bay property, which, Breland and' Gulf Beach contended, provided sufficient security for the plaintiffs’ claims; and authorizing Gulf Beach to transfer the Grand Bay property, excluding parcel 4, to Grand Oaks Plantation,. LLC (“Grand Oaks”), a company owned by Breland. Before the trial court issued any order, Gulf Beach on October 24, 2014, deeded parcels 1, 2, 3, and 6 of the Grand Bay property to Grand Oaks. The plaintiffs subsequently amended their complaint to add Grand Oaks as a defendant. (Breland, Gulf Beach, and Grand Oaks are hereinafter collectively referred,to as “the defendants.”)

On December 17, 2014, before the plaintiffs filed their amended complaint, Bre-land and Gulf Beach filed a “motion for a determination of collateral under contract” in which they reiterated that Breland was challenging the $1.5 million obligation imposed on him by Section 3.2,3 of the Plan, as amended, but indicated that Breland was “willing to post sufficient security during the pendency of the litigation as contemplated under the Plan.” Breland and Gulf Beach requested a hearing so they could present evidence of the value of the Grand Bay property, which, they said, would allow the trial court to modify the notice of lis pendens so that it encumbered only as much of the Grand Bay property as necessary to secure the plaintiffs’ $1.5 million claim.

The trial court held an evidentiary hearing regarding the value of the Grand Bay property and, on September 17, 2015, entered an order (“the Septembér 2015 order”) in which it found that Hudgens was not entitled’ to encumber the entirety of the Grand Bay property because the Plan, as amended, did not specify the property Breland was required to mortgage. The trial court also found that the Plan, as amended, reserved Breland’s right to challenge the validity of the $1.5 million obligation imposed on him by Section 3.2.3 but that the defendants “agree that ,,. [the] Plan ... contemplated that Breland would provide some collateral until a determination was reached as to the validity of the [plaintiffs’ -claim.” Thus, the trial court, after hearing conflicting evidence of the value of the Grand Bay property, found that parcel 4 of the Grand Bay property “would alone provide sufficient collateral to secure the [plaintiffs’ claim.” However, “in an abundance of caution,” the trial court ordered that the notice of lis pendens “is hereby modified such that it encumbers only Parcel 1, Parcel 4, Parcel 5, and [part] of Parcel 6.” The trial court authorized the defendants to “convey, transfer, sale, encumber, and pledge” that part of the Grand Bay property unencumbered by the September 2015 order and directed the plaintiffs not to further encumber the Grand Bay property. On October 23, 2015, the defendants filed a motion requesting that the trial court certify the. September 2015 order as final pursuant to Rule 54(b), Ala. R. Civ. P. The trial court granted that motion, and on December 18, 2015, the plaintiffs and Hudgens appealed. That case was assigned case no. 1150302,

On March 24, 2016, the trial court entered a judgment (“the March 2016 judgment”) on the parties’ motions for a partial summary judgment. In that judgment, the trial court noted that it was not addressing the plaintiffs’ “mortgage claim” because it had denied that claim in the September 2015 order. After- setting forth extensive findings of fact and conclusions of law, the trial court awarded the ■ plaintiffs $2,189,342.96 (consisting of $1.5 million in principal, plus interest); “denied and dismissed” the defendants’ fraud, breach-of-contract, and slander-of-title claims; and certified the judgment as final pursuant to Rule 54(b). The trial court denied the defendants’ postjudgment motion, and the defendants appealed. That case was assigned case no. 1150876, and this Court consolidated case nos. 1150302 and 1150876 for the purpose of writing one opinion. We now dismiss both appeals.

Discussion

Before addressing the arguments raised by the parties’ appeals, we must determine whether we have jurisdiction to do so because the plaintiffs’ fraudulent-transfer and judicial-foreclosure claims and the defendants’ quiet-title claim remain pending. “An appeal will ordinarily lie only from a final judgment;' that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the' parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995). However,

“‘[w]ith respect to the finality of judgments adjudicating fewer than all claims in a case, . Rule 54(b), Ala. R. Civ. P., provides:
“When more than one claim for' relief is presented in an action, ,.. or when multiple parties are involved} the court may- direct the entry , of a final judgment as- to one or.more but fewer than all of the claims or parties only upon an express determination that there is no just reason for, delay and. upon an express direction for the entry of judgment .... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and. liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”
“ ‘ “If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment.” Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007) (emphasis added). However, this Court will not consider an appeal from a judgment certified as final under Rule 54(b) if it determines that the trial court exceeded its discretion in concluding that there is “ho just reason for delay.” Rule 54(b); see also Scrushy v. Tucker, 955 So.2d 988, 996 (Ala. 2006) (“Whether there was ‘no just reason for delay’ is an inquiry committed'to the sound discretion of the trial court, and, as to that issue, we must determine whether the trial court exceeded its discretion.”).
“ ‘A trial court exceeds its discretion in determining that there is “no just reason for delay” when “the issues in thé'claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.”’” Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006) (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987)). See also Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009) (“ ‘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.’” (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))).’
“Loachapoka Water Auth., Inc. v. Water Works Bd. of Auburn, 74 So.3d 419, 422-23 (Ala. 2011).”

Grant v. Breland Homes, LLC, 156 So.3d 391, 395-96 (Ala. 2014) (second and third emphasis added).

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[cjertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered rou-finely.’ ” State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994), citing in turn Branch v. South-Trust Bank of Dothan, N.A., 514 So.2d 1373 (Ala. 1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003)] (quoting 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)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004).”

Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala. 2006).

In this case, the plaintiffs’ mortgage, fraudulent-transfer, and judicial-foreclosure claims were all based on the plaintiffs’ contention that Breland was obligated to give Hudgens a mortgage on the Grand Bay property but refused to do so. Conversely, the defendants’ slander-of-title and quiet-title claims were based on their contentions that the Plan, as amended, does not specify which property was to be mortgaged and that Breland had never agreed to mortgage the Grand Bay property specifically. Thus, it is clear that the central issue with respect to resolution of certain of the adjudicated claims and the pending claims is the parties’ rights and interests in the Grand Bay property.

In Schlarb v. Lee, supra, Lisa Schlarb, claiming that she had an ownership interest in Job Source, L.L.C. (“Job Source”), a limited liability company owned by Davis Lee and Danny Yancey, sued Lee and Yancey alleging fraud, breach of contract, and unlawful conversion of her claimed ownership interest in Job Source after they terminated her employment from Job Source. The circuit court entered a summary judgment against - Schlarb on the fraud and conversion claims and certified that judgment as final pursuant to Rule 54(b), and Schlarb appealed.

In dismissing Schlarb’s appeal, this Court noted that “[t]he essence of both Schlarb’s fraud claim and her breach-of-contract claim is that Lee and Yancey agreed to, but did not, give her an ownership interest in Job Source” and concluded that, “in the interest of justice, Schlarb’s fraud and conversion claims should not be adjudicated separately from the breach-of-contract claim.” 955 So.2d at 420. Just like the essence of Schlarb’s fraud and breach-of-contract claims was her contention that she had an ownership interest in Job Source, the essence of the plaintiffs’ mortgage, fraudulent-transfer, and judicial-foreclosure claims and the defendants’ slander-of-title and quiet-title claims against the plaintiffs and Hudgens is' the parties’ competing'claims to rights in the Grand Bay property. Thus, in the interest of justice, those claims should be completely adjudicated together. See also Pavilion Dev., L.L.C. v. JBJ P’ship, 142 So.3d 535, 542 (Ala. 2013) (concluding, in a redemption case, that a trial court exceeded its discretion in entering a Rule 54(b) certification “[i]n light of the fact that the. trial court’s order- failed to address the claims of all the assorted parties claiming an interest in the subject property”).

Furthermore, as noted above, this Court has held that a trial court exceeded its discretion in entering a Rule 54(b) certification where “[rjepeated appellate review of the same underlying facts would be a probability” because “ ‘ “[i]t 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.” ’ ” Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009) (quoting Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009), quoting in turn 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)). See also Fuller v. Birmingham-Jefferson Cty. Transit Auth., 147 So.3d 907, 913 (Ala. 2013) (noting that a Rule 54(b) certification was not appropriate “where ‘[t]he factual underpinnings of the adjudicated and no-nadjudicated counts are ‘ ... inextricably intertwined’ ” (quoting Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 45 (1st Cir. 1988))); and Bella Inv., Inc. v. Multi Family Serv., Inc., 80 So.3d 921, 924 (Ala. Civ. App. 2011) (noting that a Rule 54(b) certification would not have been appropriate because the adjudicated claims “ar[o]se out of; the same set of common facts” as the remaining pending claims).

Here, there is more than a probability that accepting the trial court’s Rule 54(b) certifications would require this Court to review the same facts again shotild it be presented with a future appeal (or appeals) after the pending claims are adjudicated; this Court would without question have to do so because the “factual underpinnings” of the adjudicated claims—those facts givr ing rise to the Breland bankruptcy; the plaintiffs’ dairns in the Breland-bankrupt-cy, and the parties’ agreements settling those' claim's—are “inextricably intertwined” With the pending claims. Fuller, supra. Thus, given the interrelated nature of the adjudicated claims and the pending claims,- separate adjudications would lead to piecemeal appellate review of the same facts and issues 'if this Court were to review the parties’ arguments in these appeals and then later be presented with an appeal from a judgment adjudicating the pending claims. See Pavilion, 142 So.3d at 542 (noting “the general disfavor with which both piecemeal appellate review arid Rule 54(b) certifications are viewed”); and Stephens v. Fines Recycling, Inc., 84 So.3d 867, 879 (Ala. 2011) (dismissing an appeal because the “possibility of a future appeal and this Court’s general disfavor of Rule 54(b) certifications, coupled with the interrelated nature of the .still pending [claims],” would result “in appellate review in piecemeal fashion”).

The particular circumstances of this case dictate that the pending claims should be adjudicated or otherwise disposed of with those claims that have already been adjudicated. Accordingly, we hold that the trial court exceeded its discretion in certifying as final the orders from which-these appeals lie. In the absence of final judgments, the appeals must be dismissed. Stephens, supra.

.1150302—DISMISSED.

• 1150876—DISMISSED.

Bolin, Murdock, Shaw, and Main, JJ., concur.

      . See 11 U.S.C. § 521.

      .See 11 U.S.C. § 1125.

      .See 11 U.S.C. § 1121.

      . Section 35-4-131(a) provides, in pertinent part:
      “When any civil action or proceeding shall be brought in any court to enforce any lien upon, right to or interest in, or to recover any land, or where an application has been made to the probate judge of any county for an order of condemnation of land, or any interest therein, the person, corporation, or governmental body commencing such action or proceeding or making such application shall file with the judge of probate of each county where the land or any part thereof is situated a notice containing the names of all of the parties to the action or proceeding, or the persons named as those having an interest in the land in the application for an order of condemnation, a description of the real estate and a brief statement of the nature of the lien, writ, application, or action sought to be enforced:

      . On March 1, 2016, the plaintiffs, the defendants, and Hudgens filed a “joint motion for ■consent order authorizing sale of real property free and clear of liens and encumbrances” in which they indicated that the plaintiffs and Hudgens agreed to the sale of that part of the Grand Bay property unencumbered by the September 2015 order, provided that the proceeds from the- sale would be placed in escrow pending the outcome of this appeal.

      . The trial court did not expressly reference Rule 54(b) in the March 2016 judgment but did state "that there is no just reason for delay in entry of judgment in accordance with the terms hereof and judgment is expressly so entered as to all matters decided herein,” Because the trial court quoted Rule 54(b), it is " ‘clear and obvious from the language used by the trial court ... that the court intended to 'enter a final order pursuant to Rule 54(b). " Baugus v. City of Florence, 968 So.2d 529, 531 (Ala. 2007) (quoting Schneider Nat'l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala. 2000)).

      .Even if we assume that the judicial-foreclosure and quiet-title claims have been implicitly adjudicated and/or abandoned as to that part of the Grand Bay property that was declared unencumbered in the September 2015 order, those claims might still be viable as to that part of the Grand Bay property that remained encumbered.


author:
PER CURIAM.
      SHAW, Justice BRYAN, Justice BOLIN, Justice MURDOCK, Justice

text:
    EX PARTE ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION and Steven P. Savarese, its executive director (In re: Geneva County Board of Education and Elba City Board of Education v. Alabama High School Athletic Association) Ex parte Alabama High School Athletic Association and Steven P. Savarese, its executive director (In re: Erica L. Pogue, individually and as mother and next friend of A.J.K., et al. v. Alabama High School Athletic Association and Steven P. Savarese)
    1160121
    1160125
    Supreme Court of Alabama.
    February 24, 2017

      James E. Williams, J. Flynn Mozingo, and C. Mark Bain of Melton, Espy & Williams, PC, Montgomery, for the petitioners Alabama High School Athletic Association and Steven P. Savarese, its executive director. .. ■=
    Halron W. Turner, E. Tatum Turner, and Zachry W. Turner of Turner, Onder-donk, Kimbrough, Howell, . Huggins & Bradley, PA, Chatom, for respondents Erica L. Pogue, individually and as mother and next friend of A.J.K., Washington County Board of Education, and Washington County High School.,
    James R. Seale of '' Hill, Hill, Carter, Franco, Cole & Black, PC, Montgomery, for amici curiae Genéva County Boárd of Education and Elba City Board of Education, in support of the petitioners.
   PER CURIAM.

On November 10, 2016, the Alabama High School Athletic Association (“the Association”) and its executive director, Steven P. Savarese, filed petitions for a writ of mandamus'challenging certain conflicting ord'ers issued 'by the Geneva Circuit Court and the Washington Circuit ■ Court. On Novétober 14, 2016, this Court issued an order granting the petitions and issuing the writs. In that order, -this Court upheld a decision of the Association and declared the orders of the two circuit courts to be void. That order also stated that an opinion of this Court would follow at a later date.

A.J.K. is a student at., Washington County High School, located in Washington County, and he played high-school football for the school during the 2016-2017 school year. During the high-school football playoffs, the. Association determined. that A.J.K. was ineligible to participate on the football team, and, because A.J.K. had participated for the school as an ineligible player, the Association removed the school from the playoffs. At the request of interested persons and entities, the Associátion’s décision was reviewed in both the Geneva Circuit Court and the Washington ■ Circuit Court. The Geneva Circuit Court issued an order directing that the Association’s decision be enforced, but the Washington Circuit Court issued an order-reversing the Association’s decision and prohibiting the Association from removing ‘Washington County High School from the playoffs. The Association and Savarese then filed petitions for writs of mandamus in this Court, arguing that both the Geneva Circuit Court and the Washington Circuit Court had improperly asserted jurisdiction and asking this Court to declare void the orders of those courts.

In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So.2d 652, 655 (1970), this Court stated:

“If officials of a school desire to associate with other schools and prescribe conditions of. eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association .
“Of course, -if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured parity’s] rights.”

In Alabama High School Athletic Ass’n v. Rose, 446 So.2d 1, 5 (Ala. 1984), this Court further stated:

“[A]s Kilpatrick and Kubiszyn [v. Alabama High School Athletic Ass’n, 374 So.2d 256 (Ala. 1979),] indicate, the burden on the challenger to overcome the presumption favoring the Association’s absolute authority in the conduct of its own affairs is a heavy one. We reaffirm the Kilpatrick test to the effect that the Court’s jurisdiction in such matters is invoked when, and only when, the aver-ments of fraud, collusion, or arbitrariness are supported by clear and convincing evidence; and the trial court’s acceptance of jurisdiction will be affirmed only where its order makes an unequivocal factual finding of one or more of those narrow, restrictive grounds, founded upon clear and convincing evidence.”

In this case, the requirements needed for the Geneva Circuit Court and the Washington Circuit Court to properly exercise jurisdiction simply were not present. Because of the nature of the relief sought and the impending high-school football playoffs, this Court on November 14, 2016, issued an order declaring the orders of both circuit courts void and upholding the Association’s decision removing Washington County High School from the playoffs, and the playoffs proceeded accordingly.

1160121—PETITION GRANTED AND WRIT ISSUED BY ORDER DATED NOVEMBER 14, 2016.

1160125—PETITION GRANTED AND WRIT ISSUED BY ORDER DATED NOVEMBER 14, 2016.

Stuart and Wise, JJ., concur.

Parker, J., concurs in part and concurs in the result in part. ■

Shaw, Main, and Bryan, JJ., concur in the result,

Bolin and Murdock, JJ., dissent.

SHAW, Justice

(concurring in the result). ■

I voted to concur in the result of this' Court’s November 14, 2016, order declaring the circuit courts’ decisions to be “null and void.” I believe that, under substantive law' discussed in Alabama High School Athletic Ass’n v. Rose, 446 So.2d 1 (Ala. 1984), and Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970), the circuit courts’ decisions were due to be set aside. I have some concerns with the concept that, when a trial court rules contrary to that substantive law, it lacked jurisdiction instead of simply committed reversible error. However, that issue is not briefed in the materials before us; therefore, I see no need to resolve it at this time.

BRYAN, Justice

(concurring in the result).

I agree that the decision of the Alabama High School Athletic Association (“the Association”) should stand, given the prevailing law and the facts presented here. I write specially to argue that this Court gives too much deference to the decisions of the Association.

In Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So.2d 652, 655 (1970), this Court first articulated its general rule of judicial noninterference with the Association’s decisions:

“If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association ....
“Of course, if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured parity’s] rights.”

Fourteen years after Kilpatrick, in Alabama High School Athletic Ass’n v. Rose, 446 So.2d 1 (Ala. 1984), this Court added a requirement that one or more of the narrow jurisdictional grounds be'supported by clear and convincing evidence. Further, this Court required that the trial court make an unequivocal finding of a jurisdictional ground supported by clear and con-vincingevidence:

“We reaffirm the Kilpatrick test to the effect, that the Court’s jurisdiction in such matters is invoked when, and only when, the averments of fraud, collusion, or arbitrariness are supported by clear and convincing evidence; and the trial court’s acceptance of jurisdiction will be affirmed only where its order makes an unequivocal factúal finding of one or more of those narrow, restrictive grounds, founded upon clear and convincing evidence.”

446 So.2d at 5.

This creates a high jurisdictional bar for a party to clear to get a dispute with the Association decided by a court. There is a presumption favoring the Association’s “absolute authority in the conduct of its own affairs,” and the burden to overcome this presumption is a “heavy one.” Rose, 446 So.2d at 5. Quite simply, “normally a court in this state has no jurisdiction to resolve disputes regarding eligibility under the rules of the [Association].” Alabama High School Athletic Ass’n v. Medders, 456 So.2d 284, 286 (Ala. 1984) (emphasis added). This Court gives tremendous deference to the Association, seemingly more so than the deference given to some other voluntary associations. Some other cases involving voluntary associations do not contain the clear-and-convincing-evidence requirements first announced in Rose. See, e.g., Dixon v. The Club, Inc., 408 So.2d 76 (Ala. 1981); and Wells v. Mobile Cty. Bd. of Realtors, 887 So.2d 140 (Ala. 1980); but see Talladega Little League, Inc. v. Anderson, 577 So.2d 1293 (Ala. 1991) (quoting Rose and concluding that that case, which involved a decision by a little-league-baseball association, was no different from cases involving the Association). Although we have not been asked to review our rule of judicial noninterference, I would, if asked, argue that the deference afforded the Association be scaled back. I would remove the general rule of judicial noninterference and replace it with the familiar standard of review for the decisions of administrative agencies.

I find instructive an opinion issued by the Supreme Court of Oklahoma in 2013, Scott v. Oklahoma Secondary School Activities Ass’n, 313 P.3d 891 (Okla. 2013). Before Scott, Oklahoma, like Alabama, had a general standard of judicial noninterference regarding decisions of its interscholastic association, the Oklahoma Secondary School Activities Association (“OSSAA”). Similar to the caselaw in Alabama, pre-Scott caselaw in Oklahoma provided that “courts should not intervene except to ascertain whether association proceedings are conducted pursuant to the rules and laws of the organization, in good faith and lawfully. Absent fraudulent, collusive, unreasonable, arbitrary or capricious behavior, [the Supreme Court of Oklahoma) may not overturn a voluntary association’s enforcement'-of its rules.” Brown v. Oklahoma Secondary Sch. Activities Ass’n, 125 P.3d 1219, 1224 (Okla. 2005). When this Court adopted its rule of judicial noninterference in Kilpatrick, it cited, among other cases, an Oklahoma case, Morrison v. Roberts, 183 Okla. 359, 82 P.2d 1023 (1938), in support of the rule. Although Oklahoma had a long history of judicial nonintervention in high-school athletics, the Oklahoma Supreme Court moved away froni that position in Scott.

The court in Scott determined that, because the OSSAA plays a role that “goes above and beyond that of a traditional voluntary association, closer scrutiny when reviewing its actions is a necessity.” 313 P.3d at 902. Although there are some differences between the OSSAA and the Association, there are some key similarities that make Scott informative. The court in Scott observed that its doctrine of judicial nonintervention was based on the notion that the OSSAA is a truly voluntary association. However, the court then determined that the OSSAA is not a truly voluntary association. The court stated that, for a decision to join an association to be a voluntary one, “it must be done unconstrained by outside interference and done without valuable consideration or legal 'obligation." 313 P.3d at 897. The court then noted that a school must join the OSSAA to compete with other OSSAA schools and that'most public and priváté schools in the state' are members of the' OSSAA. Thus, “[s]hould the school desire the value and enrichment its families and students receive from interscholastic competition, it effectively has no choice but to join the OSSAA.” 313 P.3d at 898. The court in Scott also noted that a school that joins the OSSAA receives the valuable consideration of the ability of its- students to compete in interscholastic athletics with other students in the state. In sum, the court concluded that, “[f]unctionally, membership in the OSSAA is not a choice but a requirement.” Id.

Similarly, I do not- view the Association as a traditional voluntary association. Under the Association’s bylaws, a school must join the Association to compete with other member schools in the Association. The Association has over 400 public and private schools as members. Private schools in Alabama may have the option of joining other athletic associations, like the Alabama Independent School Association or the Alabama Christian Athletic Association. However, it appears that public schools that desire-to participate in interscholastic athletics must, as a practical matter, join the Association. Like the OS-SAA’s membep schools, the schools that choose to join the Association receive the valuable consideration of being able to compete athletically with other schools in the Association. As is true of the OSSAA in Oklahoma, the Association is- in almost complete control- of the high-school athletic competition among public-school students in Alabama.

The court in Scott also concluded that the idea that the' OSSAA might not fit within the definition of a voluntary association was reinforced in a different context by the Court of Appeals for the Tenth Circuit in Christian Heritage Academy v. Oklahoma Secondary School Activities Ass’n, 483 F.3d 1025 (10th Cir. 2007). In that case, the court determined that the OSSAA was a state actor for purposes of the Fourteenth Amendment. The court based that conclusion on the “ ‘persuasive entwinement of public institutions, and public officials in its composition and workings.’” 483 F.3d at 1030 (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 298, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)). Similarly, in 1968, a federal district court concluded that the Association was a state actor; under the Fourteenth Amendment in Lee v. Macon County Board of Education, 283 F.Supp. 194 (M.D. Ala. 1968). I.do not address whether this Court should consider the current version of the Association a state actor for purposes of the Fourteenth Amendment. I merely note that Lee offers some support for the idea that the Association is something other than a traditional voluntary association.

The court in Scott also observed-that, “[i]n many respects, the OSSAA already behaves like a state agency and adheres to requirements provided by statute,”. 313 P.3d at 900. In this area, admittedly, there are some distinctions between the OSSAÁ and the Association. For example, Oklahoma statutes give the OSSAA specific authority over eligibility in certain circumstances and subject the OSSAA’s meetings to open-meeting requirements; there appear to be no corresponding statutes in Alabama. However, it is still true that the Association, like the OSSAA, is a pervasive and dominant force in interscholastic athletics—especially among public schools—in Alabama. As the court in- Scott noted: “ ‘The necessity of court action is apparent where the position of a voluntary association is so dominant in its field that membership in a practical sense is not voluntary but economically necessary.’” 313 P.3d at 901 (quoting Board of Regents of Univ. of Oklahoma v. National Collegiate Athletic Ass’n, 561 P.2d 499, 504 (Okla. 1977) (finding judicial scrutiny of the NCAA appropriate)).

The court in Scott also noted that member schools pay .fees to be members of the OSSAA. The same is true of the Association’s member schools. With respect to the use of public-school funds by the Association, I find the court’s, observation about the OSSAA to be apt:

“B,ecause the source of funding of public schools is from Oklahoma taxpayers, the . State of Oklahoma has an interest in ensuring that tax dollars are used by the OSSAA in a manner that is not arbitrary and capricious, but one that is fair and - impartial. Meaningful review of the OS- . SAA’s actions is necessary to ensure this.”

313 P.3d at 902. Further, the Association controls a field in which the people of this State have a substantial interest.

The court in Scott concluded that the OSSAA should be .treated more like ah administrative agency than a traditional voluntary- association. The court concluded:

“The standard of review from Morgan[ v. Secondary Sch. Activities Ass’n, 207 P.3d 362 (Okla. 2009) ], relied upon by the district court in making its ruling cannot properly be applied to a nominally voluntary association that is not truly voluntary. While the OSSAA is not a state agency subject to the provisions of [Oklahoma’s Administrative Procedures Act], it is similar enough in character and in reach that courts should apply the standard of review provided by the [Administrative Procedures Act] in 75 O.S. 2011 § 322 for agency decisions.”

313 P.3d at 902. Similarly, although the Association is not a State agency, “it is similar enough in character and in reach” that a court should apply the same standard of review applicable to agency decisions found in the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975 (“the AAPA”). See § 41-22-20(k), Ala. Code 1975. Because the Association plays a role that “goes above and beyond that of a traditional voluntary association,” greater scrutiny is required. 313 P.3d at 902.

Under the current standard, a court may exercise jurisdiction over a decision of the Association if the decision is the result of fraud, lack of jurisdiction, collusion, or arbitrariness. Thus, a court must essentially evaluate, to some degree, the merits of the case to determine whether the court should even exercise jurisdiction over the Association’s decision.-It would be more straightforward—and, as argued above, more appropriate—for a court simply to exercise jurisdiction over a dispute and apply a familiar and well settled standard of review. To be sure, the AAPA creates a deferential standard of review, but it is not as deferential as the current standard applicable to the Association. In relevant part, the AAPA provides:

“[T]he agency order' shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.... The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set .forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.” -

§ 41-22-20(k). This familiar standard would be easy for courts to apply and would provide sufficient judicial supervision of the Association, which plays a pervasive and dominant role in high-school athletics in Alabama.

BOLIN, Justice

(dissenting).

This Court, by order dated November 14, 2016, upheld a decision of the Alabama High School Athletic Association (“the Association”) and declared void the conflicting orders of the Washington Circuit Court and the Geneva Circuit Court. The order indicated that “[a] formal opinion of this Court will follow at a later date.” The Court is today issuing that opinion, and the judgment lines read: “Petition Granted and Writ Issued by Order Dated November 14, 2016.” I dissented from the issuance of the order; therefore, I must dissent from the opinion issued today, although if I were voting on a blank slate, I would concur.

As noted in Alabama High School Athletic Ass’n v. Rose, 446 So.2d 1, 5 (1984), “[a]thletics and athletes belong in their own arena. A courtroom is not the proper field of competition.... In other words, it’s their show; let them run it.” Recently, this Court has had several matters involving the Association come before it. Many, if not most of these matters, including the present one, have dealt with the eligibility of a student athlete to participate during a state playoff game—specifically, the subsequent disqualification through litigation of that student athlete’s team from advancing in the playoffs. Each time, the litigation occurs despite this Court’s precedent in Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970)—that a court has no jurisdiction to interfere in the affairs of the Association unless there exists clear and convincing evidence of fraud, collusion, or arbitrariness on the part of the Association. In this case, after two circuit courts issued conflicting orders concerning the Association’s removal of Washington County High School from the initial playoff game, the Association postponed a scheduled playoff game pending emergency relief from this Court. This Court, in turn, was forced to issue an important decision in an abbreviated time frame, with little or no time for adequate briefing and argument by the parties. Moreover, any delay by this Court in issuing a decision could have caused a domino-effect postponement of many subsequent playoff games. This scenario is terribly unfair to all involved—the student athletes, the coaches, the student bodies, the schools, and the affected citizenry who love their local high-school sports. Although the judicial system will always be open to aggrieved parties and the business of the court system is the resolution of disputes, resort to the court system may not always be the best option. For this reason,' I write specially to point that surely the adults involved here, i.e., members of the Association, acting in concert with school administrators, coaches, teachers, as well as the parents of the players affected, should be able to devise an agreed-upon set of rules for a quicker, and arguably fairer, adjudication of such time-sensitive disputes, without the schools having to resort to injunctive relief in one or more circuit courts, from which an appeal to this Court will surely follow. The Association, being in charge of the process—and not the courts—should commit, out of fairness, to doing no less for this State’s student athletes who have spent months of out-of-class time practicing and sacrificing to make themselves the best players they can be in order to make their team successful.

MURDOCK, Justice

(dissenting).

I respectfully dissent for at least two reasons. First, I believe that a circuit court, as the court of general jurisdiction in this state, has jurisdiction to consider challenges to actions of the Alabama High School Athletic Association (“the Association”). Indeed, as noted in the excerpts from Scott v. Kilpatrick, 286 Ala. 129, 132-33, 237 So.2d 652, 655 (1970), and Alabama High School Athletic Ass’n v. Rose, 446 So.2d 1, 5 (Ala. 1984), quoted in the main opinion,, the circuit court properly may overturn decisions of the Association in cases where there is a showing by clear and convincing evidence of fraud, collusion, lack of jurisdiction by the Association, or arbitrariness.

• .Second, at the time this Court issued its November 14, 2016, order, I concluded that the trial courts erred as a matter of law under the unique facts of this case in not finding the decision of the Alabama High School Athletic Association to be arbitrary. I remain of that view.

Finally, with the exception of any implied acceptance of the notion that the “jurisdiction” terminology' in Alabama High School Athletic Ass’n v. Medders, 456 So.2d 284 (Ala. 1984), accurately reflects current law, I am sympathetic to the views expressed by Justice Bryan in his special writing.

      . The. Geneva County Board of Education and the Elba City Board of Education. sought a temporary restraining order requiring the Association to enforce its rules and regulations. Erica L. Pogue and the Washington County Board of Education sought to overturn the Association's decision.

      . I believe that the Court in Alabama High School Athletic Ass'n v. Medders, 456 So.2d 284, 286 (Ala. 1984), necessarily spoke too “loosely” in referring to a court’s lack of "jurisdiction to resolve disputes regarding eligibility under the rules of the [Association].”