author: THOMAS, Judge.

text:
    THE SHOALS MILL DEVELOPMENT, LTD. v. SHELBY COUNTY BOARD OF EQUALIZATION
    2160237
    Court of Civil Appeals of Alabama.
    May 12, 2017
    W. Stanley Gregory and Sarah S. Osborne of Bradley Arant Boult Cummings LLP, Montgomery, for appellant.
    William R. Justice of Ellis, Head, Owens & Justice, Columbiana, for appellee.
   THOMAS, Judge.

On May 31, 2016, the Shelby County Board of Equalization ("the Board") issued its final ad valorem tax assessment ("the assessment") on real property owned by The Shoals Mill Development, Ltd. ("Shoals Mill"). Shoals Mill filed a notice of appeal from the assessment with the Shelby Circuit Court ("the trial court") on June 22, 2016; Shoals Mill posted the required bond and requested that the Shelby Circuit Clerk ("the clerk") serve the notice of appeal on the secretary of the Board by certified mail. See Ala. Code 1975, § 40-3-25. The clerk sent the notice of appeal, addressed to the secretary of the Board, by certified mail on June 28, 2016. The secretary of the Board received the notice of appeal on July 1, 2016.

On September 30, 2016, the Board moved to dismiss Shoals Mill's appeal. In its motion and the accompanying brief in support of the motion, the Board argued that Shoals Mill had failed to satisfy the requirements of § 40-3-25 because the notice of appeal had not been filed with the secretary of the Board within 30 days of the assessment. Shoals Mill responded to the motion to dismiss, arguing that, pursuant to Ala. Code 1975, § 40-1-45, the timely mailing of the notice of appeal to the secretary of the Board satisfied the requirement of timely filing of the notice of appeal. After a hearing, the trial court, on December 2, 2016, entered a judgment dismissing Shoals Mill's appeal.

Shoals Mill timely appealed the trial court's judgment to this court; however, because Shoals Mill's appeal to the trial court challenged the valuation of its property, Shoals Mill's appeal falls within the jurisdiction of our supreme court. See § 40-3-25 ; State v. Tuskegee Univ., 730 So.2d 617, 618 (Ala. 1999) (explaining that, under § 40-3-25, "appeals may be made directly to [our supreme court] only where the valuation of property is at issue"). We transferred the appeal to our supreme court, which transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

On appeal, Shoals Mill argues that the trial court erred by dismissing its appeal because, it contends, its notice was timely filed with the secretary of the Board by virtue of its timely mailing under § 40-1-45. The Board contends, as it did in the trial court, that Shoals Mill did not comply with the requirement of § 40-3-25 that the notice of appeal be "file[d] ... with the secretary of the board of equalization" within 30 days of the assessment. According to the Board, the notice of appeal must be timely received by the secretary of the Board to satisfy § 40-3-25.

The facts underlying this appeal are undisputed, and the issue presented is one "requir[ing] the application of law to those facts; accordingly, our review is de novo." Target Corp. v. Jefferson Cty. Bd. of Equalization, 197 So.3d 1006, 1007 (Ala. Civ. App. 2015). Shoals Mill filed its notice of appeal with the clerk on June 22, 2016, within 30 days of the May 31, 2016, assessment. The clerk mailed the notice of appeal to the secretary of the Board via certified mail on June 28, 2016, within the 30-day appeal period. However, the notice was not received by the secretary of the Board until July 1, 2016, after the expiration of the 30-day appeal period. Thus, we must determine whether, as the Board contends, § 40-3-25 requires that the notice of appeal be received by the secretary of the Board before the expiration of the 30-day appeal period or whether, as Shoals Mill contends, § 40-1-45 operates to make the notice of appeal timely under § 40-3-25 if the notice is timely mailed within the 30-day appeal period but received after the expiration of the period.

" 'The right of appeal in tax proceedings is a right conferred by statute and must be exercised in the mode and within the time prescribed by the statute.' " Ex parte Shelby Cty. Bd. of Equalization, 159 So.3d 1, 4 (Ala. 2014) (quoting Denson v. First Nat'l Bank, 276 Ala. 146, 148, 159 So.2d 849, 850 (1964) ). Because the parties urge different constructions of the statutes at issue in the present case, we must construe § 40-3-25 and § 40-1-45. To do so, we must

" 'ascertain and effectuate legislative intent as expressed in the statute.' Alabama Farm Bureau Mutual Casualty Insurance Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala. 1984). 'To ascertain that intent, we must first focus our attention on the language of the [statute], and we must give effect to the intent clearly expressed therein if the language is unambiguous.' City of Millbrook v. Tri-Community Water System, 692 So.2d 866, 867 (Ala. Civ. App. 1997) (citing Hartselle, 460 So.2d at 1223 ). 'Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning.' Hartselle, 460 So.2d at 1223."

Yelverton's, Inc. v. Jefferson Cty., 742 So.2d 1216, 1222 (Ala. Civ. App. 1997).

"Further, it is well established that ' "[s]ections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each." ' New Joy Young Restaurant, Inc. v. State Dep't of Revenue, 667 So.2d 1384 (Ala. Civ. App. 1995) (quoting Locke v. Wheat, 350 So.2d 451, 453 (Ala. 1977) ). Finally, '[this court] recognize[s] that a statute should be construed, if possible, to give effect to every section thereof, and that the legislature should not be deemed to have done a vain and useless thing.' State of Alabama Home Builders Licensure Bd. v. Sowell, 699 So.2d 214 (Ala. Civ. App. 1997)."

State v. Amerada Hess Corp., 788 So.2d 179, 183-84 (Ala. Civ. App. 2000).

An appeal of a tax assessment by a county board of equalization must comply with the requirements of § 40-3-25, which reads, in pertinent part, as follows:

"All appeals from the rulings of the board of equalization fixing value of property shall be taken within 30 days after the final decision of said board fixing the assessed valuation as provided in this chapter. The taxpayer shall file notice of said appeal with the secretary of the board of equalization and with the clerk of the circuit court and shall file bond to be filed with and approved by the clerk of the circuit court, conditioned to pay all costs ...."

However, § 40-1-45(a) provides that the date of mailing of a document required to be filed under Title 40 ("the revenue code") will be considered the date of filing, provided that the document is mailed within the applicable prescribed period, is actually delivered to the appropriate officer or agency, and meets specified mailing requirements.

Section 40-1-45 reads, in its entirety, as follows:

"(a) General rule.
"(1) Date of delivery. If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of [the revenue code] is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be.
"(2) Mailing requirements. This subsection shall apply only if
"a. The postmark date falls within the prescribed period or on or before the prescribed date
"1. For the filing (including any extension granted for such filing) of the return, claim, statement, or other document, or
"2. For making the payment (including any extension granted for making such payment), and
"b. The return, claim, statement, or other document, or payment was, within the time prescribed in paragraph a., deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency, officer, or office with which the return, claim, statement, or other document is required to be filed, or to which such payment is required to be made.
"(b) Postmarks. This section shall apply in the case of postmarks not made by the United States Postal Service only if and to the extent provided by the Department of Revenue.
"(c) Registered and certified mailing.
"(1) Registered Mail. For purposes of this section, if any such return, claim, statement, or other document, or payment, is sent by United States registered mail
"a. Such registration shall be prima facie evidence that the return[,] claim, statement, or other document was delivered to the agency, officer, or office addressed to, and
"b. The date of registration shall be deemed the postmark date.
"(2) Certified Mail. The Department of Revenue is authorized to provide by regulations the extent to which the provisions of subdivision (1) of this subsection with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail.
"(d) Exceptions. This section shall not apply with respect to
"(1) The filing of a document in, or the making of a payment to[,] any court.
"(2) Currency or other medium of payment unless actually received and accounted for, or
"(3) Returns, claims, statements, or other documents, or payments which are required under any provision of [the revenue code] to be delivered by any method other than by mailing."

(Emphasis added.)

Shoals Mill argues that the language of § 40-1-45 clearly indicates that it applies to nearly every document required to be filed under the revenue code. As Shoals Mill points out, although § 40-1-45(d) provides for certain exceptions, a notice of appeal is not among them. The Board argues that § 40-1-45"does not by its words specifically apply to the filing of a notice of appeal under § 40-3-25." Relying on the principle of ejusdem generis, the Board contends that the fact that the term "other document" in § 40-1-45 follows the words "return, claim, [or] statement," the term "other document" must be limited in meaning to those documents similar to a return, a claim, or a statement. See Ex parte Emerald Mountain Expressway Bridge, L.L.C., 856 So.2d 834, 842 (Ala. 2003) (quoting Lambert v. Wilcox Cty. Comm'n, 623 So.2d 727, 731 (Ala. 1993) ) ("The principle of 'ejusdem generis' provides that 'general words, following the enumeration of particular classes of persons or things, are construed to apply only to persons or things of the same general nature or class as those specifically enumerated.' "). A notice of appeal, the Board contends, is not like a return, a claim, or a statement, because, the Board says, the purpose of a notice of appeal is to "quicken the jurisdiction of a circuit court to review an ad valorem property tax valuation." Thus, the Board reasons, a notice of appeal, being unlike a "return, claim, [or] statement," cannot be an "other document."

We cannot agree with the Board that the term "other document" excludes notices of appeal. Section 40-1-45(d) provides those items that are exempted from the operation of the statute, and that section does not exempt notices of appeal. If the legislature desired to exempt notices of appeal, it could easily have done so. Moreover, the applicable sentence of § 40-1-45(a)(1) does not merely recite that the statute applies to a "return, claim, statement, or other document." The sentence continues after the term "other document" to specifically provide that the aforementioned items be ones "required to be filed ... within a prescribed period or on or before a prescribed date under authority of any provision of [the revenue code]." Thus, the term "other document" is not merely a general term in a list of more specific ones, but a specific term, referring to documents "required to be filed ... under authority of any provision of [the revenue code]." A notice of appeal fits squarely within this definition. Accordingly, we reject the Board's contention that § 40-1-45 does not apply to notices of appeal filed under § 40-3-25.

The Board further contends that certain caselaw supports its argument that the provisions of § 40-1-45 do not apply to a notice of appeal and that § 40-3-25 requires that the notice of appeal be received within the 30-day appeal period in order for it to be timely filed with the secretary of the Board. The Board relies primarily on this court's decision in Target Corporation. In Target Corporation, we considered an appeal from the judgment of a circuit court dismissing an appeal from an ad valorem tax assessment filed by Target Corporation ("Target") based on the circuit court's conclusion that Target's notice of appeal had not been timely filed with the secretary of the board of equalization. Target Corp., 197 So.3d at 1007. The assessments at issue had been entered on August 28, 2013, so Target's notice of appeal was required to have been filed with the circuit court and the secretary of the board by September 27, 2012. Id. at 1006. Target filed its notice of appeal in the circuit court on September 27, 2013; it mailed the notice of appeal to the secretary of the board via certified mail on that same date. Id. at 1007. The notice of appeal was received by the board on October 1, 2013. Id.

The board moved to dismiss Target's appeal in the circuit court, arguing that Target's notice of appeal had not been filed with the board within 30 days of the entry of the assessments. Id. Target argued that "it had timely perfected its appeal pursuant to the Alabama Administrative Procedure Act ('the AAPA'), §§ 41-22-1 et seq., Ala. Code 1975," which provides that " '[a]ny notice required herein which is mailed by the petitioner, certified mail return receipt requested, shall be deemed to have been filed as of the date it is postmarked.' " Target Corp., 197 So.3d at 1007 (quoting Ala. Code 1975, § 41-22-20(d) ). After a hearing, the circuit court dismissed Target's appeal, and Target sought appellate review. Id.

We determined that Target's appeal of the ad valorem tax assessments was governed by § 40-3-25 and not by the provisions of the AAPA. Id. at 1008. Based on our conclusion that the provisions of the AAPA were not applicable to Target's appeal, we determined that Target had not demonstrated that the trial court had erred in dismissing its appeal as untimely under § 40-3-25. Id. We specifically noted, however, that "Target makes no argument that the language in § 40-3-25 can be construed as allowing a copy of a notice of appeal to be mailed or postmarked on or before the time prescribed by the statute, thereby constituting a timely filing of the notice of appeal." Id.

As Shoals Mill points out, we were not presented in Target Corporation with the precise argument that Shoals Mill makes in the present appeal. We did not decide in Target Corporation whether a notice of appeal mailed or postmarked within the 30-day appeal period complies with the requirement that a notice of appeal be filed within 30 days of the assessment as required by § 40-3-25, and we were not presented with an argument that § 40-1-45 provided that the timely mailing of a document required to be filed under the revenue code is equivalent to timely filing that document. Thus, we are not convinced that Target Corporation requires an affirmance of the dismissal of Shoals Mill's appeal.

The Board also relies on Ex parte Shelby County Board of Equalization as support for its argument that a notice of appeal must be timely received by the secretary of the Board in order to satisfy § 40-3-25. In Ex parte Shelby County, our supreme court issued a writ of mandamus directing the trial court to dismiss an appeal from an ad valorem tax assessment because the notice of appeal had not been timely filed with the secretary of the Board as required by § 40-3-25. Ex parteShelby Cty., 159 So.3d at 4. The tax assessment at issue in Ex parte Shelby County concerned property owned by Central Shelby, LTD ("the company"), and had been entered by the Board on May 29, 2013. Id. at 1. The company filed its notice of appeal with the circuit court on June 18, 2013. Id. at 1-2. However, the circuit clerk did not serve the secretary of the Board by mail until July 3, 2013, after the expiration of the 30-day appeal period. Id. at 2. Thus, the Board moved to dismiss the company's appeal. Id. The circuit court denied the motion to dismiss, and the Board filed a petition for the writ of mandamus. Id.

Our supreme court explained that " § 40-3-25 plainly prescribes that a notice of appeal from a final assessment of the Board must be filed with both the circuit court and the secretary of the Board within 30 days." Id. at 4. Because the company had not timely filed its notice of appeal with the secretary of the Board, our supreme court concluded that the circuit court should have dismissed the company's appeal. Id. Notably, our supreme court stated that "although the Board received a copy of the notice from the Shelby Circuit Court clerk, that notice was not mailed to or received by the Board until after the 30-day period had elapsed," indicating that our supreme court was aware of the provisions of § 40-1-45. Id. at 2. Our supreme court rejected the company's attempt to deflect fault onto the circuit clerk for its untimely mailing of the notice of appeal, explaining that § 40-3-25"clearly charges the appealing taxpayer with the responsibility of filing the notice of appeal with the secretary of the Board." Id. at 4. However, we do not read the opinion as preventing the appealing party from relying on the circuit clerk for service of the notice of appeal, provided, of course, that the notice of appeal is timely mailed.

The facts of Ex parte Shelby County are clearly distinguishable from the facts of the present case. The clerk in the present case mailed the notice of appeal to the secretary of the Board within the 30-day appeal period. The circuit clerk in Ex parte Shelby County did not. We therefore conclude that Ex parte Shelby County does not support the affirmance of the dismissal of Shoals Mill's appeal.

The Board also cites State v. Mann, 653 So.2d 314, 315 (Ala. Civ. App. 1994), in which this court determined that, because a taxpayer had failed to provide proof that the Department of Revenue ("the Department") had received a notice of appeal that the taxpayer alleged had been timely mailed to the Department, the taxpayer's appeal of a final tax assessment to the circuit court should have been dismissed. The taxpayer had presented an affidavit in which she had testified that she had timely mailed the notice of appeal to the Department; however, she presented no proof of mailing and had not used registered or certified mail. Mann, 653 So.2d at 315. The Department denied having received the notice of appeal, and the taxpayer presented no contrary evidence. Id. The opinion in Mann does not refer to § 40-1-45, indicating that its application may not have been argued on appeal. Therefore, we cannot agree with the Board that the decision in Mann supports a conclusion that § 40-1-45 is not applicable to notices of appeal.

Section 40-1-45, by its plain language, applies to notices of appeal that are required to be filed under any part of the revenue code. Neither Ex parte Shelby County, nor Target Corporation, nor Mann compel a different conclusion. Because the undisputed facts demonstrate that Shoals Mill's notice of appeal was timely mailed to and was received by the secretary of the Board, § 40-1-45(a) operates to make the date of mailing of the notice of appeal the date the notice of appeal was filed with the secretary of the Board. We therefore conclude that the trial court erred in dismissing Shoals Mill's appeal. The judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

      We note that service on the Board was accomplished by certified mail. However, because the Board received the notice of appeal, we need not consider the effect of § 40-1-45(c)(2) or Rule 810-1-5-.01(3)(b), Ala. Admin. Code (Dep't of Revenue), which make the use of certified mail equivalent to the use of registered mail if certain requirements are met.

      The Board relies on cases predating the 1985 enactment of § 40-1-45 to further bolster its argument that timely mailing of a notice of appeal is not equivalent to timely filing of a notice of appeal with the secretary of the Board. See, e.g., State Dep't of Revenue v. Welding Eng'g & Supply Co., 452 So.2d 1340 (Ala. Civ. App. 1984) ; Mitchell v. State, 351 So.2d 599 (Ala. Civ. App. 1977) ; and State v. Empire Bldg. Co., 46 Ala.App. 565, 246 So.2d 454 (Civ. App. 1971). However, those cases are not helpful in deciding whether § 40-1-45 applies to notices of appeal under § 40-3-25.

      Furthermore, we note that, unless registered or certified mail is used, see § 40-1-45(c)(1) and Rule 810-1-5-.01.(3)(b), Ala. Admin. Code (Dep't of Revenue), the mailing date is considered to be the filing date of a document only if that document is actually received by the proper official or department. See § 40-1-45(a)(1) ("If any ... document required to be filed ... within a prescribed period or on or before a prescribed date under authority of any provision of [the revenue code] is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such ... document is required to be filed ...."(emphasis added)). Because the taxpayer in Mann did not dispute the Department's assertion that it had never received the notice of appeal, which had apparently been mailed by regular mail, § 40-1-45 would not have operated to make the notice of appeal timely.


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE Kevin Dwayne ALLISON, Jr.
    (In re: Kevin Dwayne Allison, Jr. v. Christy Michelle Helms)
    2160512
    Court of Civil Appeals of Alabama.
    May 12, 2017
    Kevin Dwayne Allison, Jr., pro se.
    Submitted on mandamus petition only.
   THOMAS, Judge.

This is the second time that Kevin Dwayne Allison, Jr. ("the husband"), has appeared before this court to challenge an order of the Marshall Circuit Court ("the trial court") in the husband's divorce action against Christy Michelle Helms ("the wife"). See Allison v. Helms, 230 So.3d 404 (Ala. Civ. App. 2017). In Allison, the husband appealed a September 19, 2016, order of the trial court that stated:

" 'FINAL ORDER OF DIVORCE filed by ALLISON KEVIN DWAYNE is hereby DENIED.
"The pleadings are inadequate and incomplete. The parties are highly encouraged to seek legal advice.' "

230 So.3d at 404. The husband had construed the order to be an order dismissing his divorce action. Id. However, we determined that the trial court's September 19, 2016, order denying the husband a "final order of divorce" had not dismissed the action but instead had indicated that the action was not ripe for the entry of a judgment, "because the wife had not filed a signed answer and waiver and because the required 30-day waiting period had not expired." 230 So.3d at 405 (citing Ala. Code 1975, § 30-2-8.1(a) ("A court shall not enter a final judgment of divorce until after the expiration of 30 days from the date of the filing of the summons and complaint.")). We dismissed the husband's appeal, stating in our concluding paragraph that "[t]he husband's divorce action remains pending in the trial court, and the action shall proceed to judgment once service on the wife is perfected." 230 So.3d at 406.

On or about March 16, 2017, the husband filed in the trial court a motion to compel service of the divorce complaint on the wife. The trial court denied the husband's motion on March 20, 2017. On April 3, 2017, the husband timely filed this petition for the writ of mandamus seeking review of the trial court's March 20, 2017, order. We called for an answer to the petition, but none was filed. Thus, we take the averments of fact in the husband's petition as true. See Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002).

" 'A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is "appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001).'
" Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005). 'Mandamus will be granted only where an abuse of discretion is shown.' Ex parte McMahan, 507 So.2d 492, 493 (Ala. 1987)."

Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006).

Rule 4(a)(1), Ala. R. Civ. P., provides that, after a complaint is filed, "the clerk shall forthwith issue the required summons or other process for service upon each defendant." The issuance of a summons is a ministerial duty of the clerk. Lucas v. Belcher, 20 Ala.App. 507, 509, 103 So. 909, 911 (1925) (stating that "issuing the summons in this case was a ministerial duty imposed upon ... the circuit clerk"). Furthermore, our supreme court has indicated that the failure of the clerk to promptly issue a summons is neglect. Horn v. Pope, 205 Ala. 127, 129, 87 So. 161, 163 (1920) (declining to charge the plaintiff with "the neglect of the clerk in not promptly issuing a summons after [the plaintiff] had filed his complaint").

We noted in Allison that the record did not reflect that the wife had been served with the divorce complaint. 230 So.3d at 405-06. The husband avers that the divorce complaint has still not been served on the wife, and the attachments to the husband's petition demonstrate that the trial court has now denied his request that the circuit clerk proceed with service of process on the wife. Nothing in the record in the previous appeal revealed a basis for the failure of the clerk to serve the divorce complaint on the wife.

The husband has demonstrated a clear legal right to have his divorce complaint served on the wife. We therefore grant the husband's petition, and we order the trial court to instruct the clerk to serve the divorce complaint on the wife.

PETITION GRANTED; WRIT ISSUED.

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

Donaldson, J., concurs specially.

DONALDSON, Judge, concurring specially.

The record shows that Kevin Dwayne Allison, Jr., submitted a summons and complaint to the trial-court clerk to commence a civil action and requested service upon Christy Michelle Helms, the defendant, by certified mail. "When the plaintiff has requested the clerk to issue service by certified mail, the plaintiff, at the request of the clerk, shall also furnish properly completed postal forms necessary for such service." Rule 4(a)(5), Ala. R. Civ. P. (emphasis added). Although I do not find in the materials before us or in the record in the previous appeal any of the postal forms required to obtain service upon Helms by certified mail pursuant to Rule 4(i)(2), Ala. R. Civ. P., I also do not find any indication that the trial-court clerk has requested that Allison furnish any forms as required by Rule 4(a)(5), Ala. R. Civ. P. Therefore, Allison is entitled to the writ of mandamus directing the trial-court clerk to proceed with processing the summons and complaint for service by certified mail as requested by Allison and as required by Rule 4(i)(2), Ala. R. Civ. P., and, if any further forms are necessary, the trial-clerk may request those forms from Allison. See Rule 4(a)(5), Ala. R. Civ. P.

      " ' "This court takes judicial notice or has judicial knowledge of contents of its records with reference to its previous consideration of litigation presently before it." ' " Veteto v. Swanson Servs. Corp., 886 So.2d 756, 764 n.1 (Ala. 2003) (quoting Morrow v. Gibson, 827 So.2d 756, 762 (Ala. 2002), quoting in turn Federal Deposit Ins. Corp. v. Equitable Life Assurance Soc'y, 289 Ala. 192, 194, 266 So.2d 752, 753 (1972) ).


author: MOORE, Judge.

text:
    ALABAMA DEPARTMENT OF HUMAN RESOURCES v. Christy M. ALLEN and Mark David Allen
    2160310
    Court of Civil Appeals of Alabama.
    May 19, 2017
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

The Alabama Department of Human Resources ("DHR") appeals from a judgment of the Jefferson Circuit Court ("the trial court") to the extent that it ordered DHR to pay attorney's fees for Mark David Allen ("the father"). We dismiss the appeal.

Procedural Background

The father and Christy M. Allen ("the mother") were divorced by a judgment entered by the trial court on October 10, 2003, which ratified an agreement of the parties. That agreement, among other things, provided that the mother would have sole physical custody of the child born of the parties' marriage and that the father would pay $302 per month in child support. On June 23, 2016, the father filed in the trial court a complaint to modify his child-support obligation. In that complaint, the father alleged that he had faithfully paid the child support due under the agreement and that he had, of his own volition, paid child support, in the form of a Social Security disability benefit, in the amount of $640 per month between August 2012 and July 2015. Nevertheless, the father claimed that, in February 2016, the mother or an unnamed individual had informed DHR that the father had not paid child support and that he had accumulated an arrearage of $56,000, which, he asserted, had led DHR to obtain an income-withholding order against him and to intercept his 2015 federal and state income-tax refunds in order to satisfy the arrearage. The father requested that the trial court correct and set aside the allegedly erroneous determination of a child-support arrearage, correct the income-withholding order, require the mother to return the funds withheld from his federal and state income-tax refunds, credit him for all moneys paid to the mother by or on his behalf for child support, modify his child support-obligation, and order the mother to pay his attorney's fees.

On July 26, 2016, DHR filed a motion to intervene, asserting, among other things, that the father was in arrears on his child-support obligation in the amount of $35,906 and that $21,957.35 in interest had accumulated on that arrearage. DHR alleged that it is the state agency designated to prosecute child-support claims, see Ala. Code 1975, § 38-10-3(a), and that the mother had assigned her right to receive child support from the father to DHR, thereby making DHR a party in interest. See Ala. Code 1975, § 38-10-5. On August 30, 2016, the mother filed an answer and a counterclaim seeking to modify the divorce judgment to increase the father's child-support obligation and to require the father to pay her attorney's fees.

Following a trial on September 27, 2016, the trial court entered a judgment on November 21, 2016, finding the father in arrears for the nonpayment of medical bills incurred by the mother for the benefit of the child in the amount of $144 and entering a judgment against the father in that amount. The trial court also found that the father was not in arrears for other child support, that DHR had been negligent in its research regarding the arrearage allegedly owed by the father before attempting to collect the alleged arrearage, that DHR had encouraged the mother to file a false claim against the father for the alleged child-support arrearage, and that DHR had failed to entertain the father's attempt to provide it with proof of payments regarding the alleged arrearage. The trial court ordered DHR to pay to the father attorney's fees in the amount of $5,000 "for [its] negligence and greed in having [the mother] file a false claim against [the father]." Additionally, the trial court increased the father's child-support obligation to the mother to $513.78 per month. All other relief requested by either party was denied.

DHR filed a postjudgment motion, asserting, among other things, that the trial court had erred in ordering it to pay attorney's fees for the father. The mother filed a postjudgment motion on December 21, 2016. The father filed responses to both postjudgment motions. Following a hearing, the trial court entered an order on January 11, 2017, correcting a scrivener's error in its judgment that is unrelated to the present appeal and denying all remaining relief requested by both DHR and the mother. DHR timely filed its notice of appeal to this court on February 1, 2017.

Facts

The facts pertinent to this appeal are as follows. The mother testified that, following the entry of the divorce judgment, she had received child-support payments from the father "though the court system" through February 2006. The mother testified that she had received payments directly from the father after February 2006, but she could not recall the exact number or amounts of those payments and did not have records documenting those payments. The mother testified that she had later received Social Security disability payments on behalf of the child as a result of the father's disability. The parties stipulated to the introduction of an exhibit showing that Social Security disability payments had been made to the mother for the benefit of the child from August 2012 through June 2015.

The mother testified that, in December 2015, she had gone to DHR's office in order to obtain DHR's assistance in obtaining child support for the months since June 2015. The mother testified that DHR had requested that she fill out documentation regarding the father's child-support-payment history. She testified that she informed DHR that she could not recollect how many payments she had received from the father after February 2006. The mother clarified, however, that she had not informed DHR that she had not received any checks from the father after February 2006. According to the mother, a DHR employee told her that, without more specific information, the father could not receive credit for any of the 78 payments due after February 2006 and before the Social Security payments commenced, but that the father would be given an opportunity to prove his payments later. The mother further testified that she had presented documentation of the Social Security disability payments to DHR but that DHR had not listed the Social Security disability payments she received as child-support payments. According to the mother, DHR had told her that the Social Security disability payments "didn't apply."

The father testified that he had never missed a child-support payment, having sometimes paid in cash, but mostly having paid by check. He introduced as exhibits a spreadsheet showing his payments, canceled checks dating back to February 2009, and ATM receipts showing cash withdrawals that he claimed had been for his child-support payments. The father testified that he had paid child support every month between February 2006 and January 2009 by check, but, he said, the bank records did not go back that far so he did not have the canceled checks. The father testified that he became disabled in July 2012 and that he began receiving Social Security disability benefits in August 2012, at which point he discontinued making child-support payments because the Social Security Administration had informed him that it would be sending a check to the mother on behalf of the father. According to the father, when the mother informed him that she had not received a check from the Social Security Administration, he paid the mother regular child support by check for the months of September, October, and November 2012. The father testified that he had later learned that the Social Security Administration had paid the mother a lump-sum amount covering August through November 2012, but, he said, the mother had refused to reimburse him the amounts he had paid during that period.

The father eventually recovered from his disability and returned to work. The father testified that he had realized he would have to resume child-support payments and that he had contacted the mother to inform her that he wanted credit for the overpayments he had made before resuming payments. The father testified that, before he was ready to resume making the monthly child-support payments, he had noticed that his paycheck had been garnished in February 2016. The father testified that he contacted DHR about the garnishment and that he had gone to DHR's office to provide DHR documentation showing that he had not missed any child-support payments. The father testified that he had taken canceled checks to DHR's office to prove his payments, but, he said, "the lady at the counter" had told him he was wasting his time.

Lyndie Lewis, the DHR caseworker assigned to the mother's case, testified that DHR had determined that the father was in arrears on his child-support obligation by excluding consideration of any Social Security disability payments for the child or any payments made by the father that the mother could not document or recall. Shunda Coleman, another DHR employee, testified that, as part of an administrative review, Lewis had sent a letter to the father asking for proof of the child-support payments he claimed he had made but that she had no knowledge if the father had attempted to supply such proof. Coleman also testified that it was DHR's policy not to consider Social Security disability payments or other payments received from third parties as child-support payments.

Issues

DHR argues on appeal that the trial court entered a void judgment ordering it to pay attorney's fees for the father. DHR asserts that the trial court lacked subject-matter jurisdiction to award attorney's fees against it because DHR has sovereign immunity, pursuant to Article I, § 14, Ala. Const. of 1901. DHR also asserts that the trial court lacked personal jurisdiction over DHR because it was never formally made a party to the child-support-modification action. We find the first argument to be dispositive of the case, so we do not address the second argument.

Standard of Review

In this case, the question whether DHR is entitled to sovereign immunity such that it cannot be ordered to pay the father's attorney's fees involves a pure question of law, which question we review de novo. See generally D.P. v. Limestone Cty. Dep't of Human Res., 28 So.3d 759, 764 (Ala. Civ. App. 2009).

Analysis

Section 14 of the Constitution of Alabama of 1901 provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." In Ex parte State Department of Human Resources, 950 So.2d 1165, 1170 (Ala. Civ. App. 2004), this court explained:

"Pursuant to Article 1, § 14, of the Alabama Constitution of 1901, the State of Alabama and its agencies are immune from suit in any court. Ex parte Franklin County Dep't of Human Res., 674 So.2d 1277 (Ala. 1996). That constitutional provision 'affords the State and its agencies an "absolute" immunity from suit in any court.' Haley v. Barbour County, 885 So.2d 783, 788 (Ala. 2004) (citing Ex parte Mobile County Dep't of Human Res., 815 So.2d 527, 530 (Ala. 2001) ). The state's absolute immunity extends to its arms and agencies. Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala. 2000)."

DHR is considered an agency or arm of the state for the purpose of determining the applicability of sovereign immunity. See Ex parte State Dep't of Human Res., 999 So.2d 891, 896 (Ala. 2008).

"In general, the State is immune from any lawsuit that would directly affect a contract or property right of the State or result in the plaintiff's recovery of money from the State." Latham v. Department of Corr., 927 So.2d 815, 821 (Ala. 2005). Our supreme court has held that "an award of ... attorney fees and expenses impacts the State treasury and divests it of funds in the very way forbidden by [Ala. Const. 1901,] § 14." Ex parte Town of Lowndesboro, 950 So.2d 1203, 1211-12 (Ala. 2006). In Ex parte Bentley, 116 So.3d 201, 204 (Ala. 2012), our supreme court affirmed its unequivocal holding in Ex parte Town of Lowndesboro by holding that " § 14 bars an award of attorney fees and costs even if a plaintiff has prevailed on a claim against State officials in their official capacities for a violation of the State constitution that results in preservation of significant funds in the State treasury." Thus, sovereign immunity generally bars a trial court from ordering a state department, such as DHR, to pay attorney's fees.

Sovereign immunity does not prevent actions for an injunction or damages brought against state officials in their representative capacity and individually when it is alleged that they acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala. 2006). In Ex parte Montgomery County Department of Human Resources, 982 So.2d 545, 550 (Ala. Civ. App. 2007), the Montgomery Circuit Court relied on that exception in imposing attorney's fees against DHR's attorneys in an order that was later ordered to be vacated by this court on a petition for the writ of mandamus. In this case, however, the trial court did not adjudicate any claim for an injunction or damages against a DHR official based on his or her fraud, bad faith, unauthorized acts, or mistaken interpretation and application of the law. In its final judgment, the trial court only ordered DHR, as a state agency, to pay $5,000 in attorney's fees for the alleged negligent and greedy actions of its employees in regard to the mother's child-support-arrearage claim. As our supreme court has unequivocally held, a claim for attorney's fees against a state agency cannot be maintained because of the applicability of sovereign immunity.

We conclude that DHR, as an agency of the sovereign state, was immune from suit for attorney's fees for the father. "A trial court lacks subject-matter jurisdiction if the defendant is immune under the doctrine of sovereign immunity." Ex parte Alabama Dep't of Transp., 978 So.2d 17, 26 (Ala. 2007). "A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment." Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008). Accordingly, we dismiss DHR's appeal from the trial court's judgment, albeit with instructions to the trial court that it vacate that portion of its judgment ordering DHR to pay attorney's fees for the father.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      For that reason, we state no opinion as to whether DHR correctly determined that the father had accumulated a child-support arrearage by excluding unproven payments and Social Security disability payments.

      Federal law might preempt state law and require a state to pay attorney's fees to an opposing litigant, see Ex parte Town of Lowndesboro, supra, but no federal law was invoked in this case.


author: PER CURIAM.

text:
    Corey Allen WIMBLEY v. STATE of Alabama
    CR-11-0076
    Court of Criminal Appeals of Alabama.
    December 16, 2016 Rehearing Denied March 17, 2017 Certiorari Denied May 19, 2017
    Bryan A. Stevenson and Randall S. Susskind, Montgomery, for appellant.
    Luther Strange, atty. gen., and Andrew L. Brasher and Tina Coker Hammonds, asst. atty. gen., for appellee.
    On Remand from the Supreme Court of the United States
   PER CURIAM.

On December 19, 2014, this Court affirmed Corey Allen Wimbley's two convictions of murder made capital because they were committed during the commission of a robbery and an arson, see §§ 13A-5-40(a)(2) and (a)(9), Ala. Code 1975, and his resulting sentences of death. Wimbley v. State, 191 So.3d 176 (Ala. Crim. App. 2014). On September 25, 2015, the Alabama Supreme Court denied Wimbley's petition for writ of certiorari.

On May 31, 2016, the Supreme Court of the United States vacated this Court's judgment and remanded the cause to this Court for further consideration in light of its decision in Hurst v. Florida, 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Thereafter, this Court allowed Wimbley to file a brief on remand from the Supreme Court. In his brief, Wimbley argued that Hurst invalidated Alabama's capital-sentencing scheme because: 1) the jury was told that its sentencing-phase verdict was a recommendation; 2) the jury's sentencing-phase recommendation does not have to be unanimous; 3) the trial judge is the final sentencing authority; and 4) the trial judge ultimately determines whether the aggravating factor or factors outweigh the mitigating factor or factors. After careful consideration, this Court holds that the decision in Hurst did not invalidate the procedure for imposing a sentence of death in Alabama.

In Ex parte Bohannon, 222 So.3d 525, 528 (Ala. 2016), the Alabama Supreme Court determined that the decision in Hurst did not affect Alabama's capital-sentencing procedure. Specifically, our Supreme Court held:

"In 2000, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held that the United States Constitution requires that any fact that increases the penalty for a crime above the statutory maximum must be presented to a jury and proven beyond a reasonable doubt. In Ring v.Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the United States Supreme Court, applying its decision in Apprendi to a capital-murder case, stated that a defendant has a Sixth Amendment right to a 'jury determination of any fact on which the legislature conditions an increase in their maximum punishment.' 536 U.S. at 589, 122 S.Ct. 2428. Specifically, the Court held that the right to a jury trial guaranteed by the Sixth Amendment required that a jury 'find an aggravating circumstance necessary for imposition of the death penalty.' Ring, 536 U.S. at 585, 122 S.Ct. 2428. Thus, Ring held that, in a capital case, the Sixth Amendment right to a jury trial requires that the jury unanimously find beyond a reasonable doubt the existence of at least one aggravating circumstance that would make the defendant eligible for a death sentence.
"In Ex parte Waldrop, 859 So.2d 1181 (Ala. 2002), this Court considered the constitutionality of Alabama's capital-sentencing scheme in light of Apprendi and Ring, stating:
" 'Waldrop argues that under Alabama law a defendant cannot be sentenced to death unless, after an initial finding that the defendant is guilty of a capital offense, there is a second finding: (1) that at least one statutory aggravating circumstance exists, see Ala. Code 1975, § 13A-5-45(f), and (2) that the aggravating circumstances outweigh the mitigating circumstances, see Ala. Code 1975, § 13A-5-46(e)(3). Those determinations, Waldrop argues, are factual findings that under Ring must be made by the jury and not the trial court. Because, Waldrop argues, the trial judge in his case, and not the jury, found that two aggravating circumstances existed and that those aggravating circumstances outweighed the mitigating circumstances, Waldrop claims that his Sixth Amendment right to a jury trial was violated. We disagree.
" 'It is true that under Alabama law at least one statutory aggravating circumstance under Ala. Code 1975, § 13A-4-49, must exist in order for a defendant convicted of a capital offense to be sentenced to death. See Ala. Code 1975, § 13A-5-45(f) ("Unless at least one aggravating circumstance as defined in Section 13A-5-49 exists, the sentence shall be life imprisonment without parole."); Johnson v. State, 823 So.2d 1, 52 (Ala. Crim. App. 2001) (holding that in order to sentence a capital defendant to death, the sentencer " 'must determine the existence of at least one of the aggravating circumstances listed in [Ala. Code 1975,] § 13A-5-49' " (quoting Ex parte Woodard, 631 So.2d 1065, 1070 (Ala. Crim. App. 1993) )). Many capital offenses listed in Ala. Code 1975, § 13A-5-40, include conduct that clearly corresponds to certain aggravating circumstances found in § 13A-5-49:
" ' "For example, the capital offenses of intentional murder during a rape, § 13A-5-40(a)(3), intentional murder during a robbery, § 13A-5-40(a)(2), intentional murder during a burglary, § 13A-5-40(a)(4), and intentional murder during a kidnapping, § 13A-5-40(a)(1), parallel the aggravating circumstance that '[t]he capital offense was committed while the defendant was engaged ... [in a] rape, robbery, burglary or kidnapping,' § 13A-5-49(4)."
" ' Ex parte Woodard, 631 So.2d at 1070-71 (alterations and omission in original).
" 'Furthermore, when a defendant is found guilty of a capital offense, "any aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentencing hearing." Ala. Code 1975, § 13A-5-45(e) ; see also Ala. Code 1975, § 13A-5-50 ("The fact that a particular capital offense as defined in Section 13A-5-40(a) necessarily includes one or more aggravating circumstances as specified in Section 13A-5-49 shall not be construed to preclude the finding and consideration of that relevant circumstance or circumstances in determining sentence."). This is known as "double-counting" or "overlap," and Alabama courts "have repeatedly upheld death sentences where the only aggravating circumstance supporting the death sentence overlaps with an element of the capital offense." Ex parte Trawick, 698 So.2d 162, 178 (Ala. 1997) ; see also Coral v. State, 628 So.2d 954, 965 (Ala. Crim. App. 1992).
" 'Because the jury convicted Waldrop of two counts of murder during a robbery in the first degree, a violation of Ala. Code 1975, § 13A-5-40(a)(2), the statutory aggravating circumstance of committing a capital offense while engaged in the commission of a robbery, Ala. Code 1975, § 13A-5-49(4), was "proven beyond a reasonable doubt." Ala. Code 1975, § 13A-5-45(e) ; Ala. Code 1975, § 13A-5-50. Only one aggravating circumstance must exist in order to impose a sentence of death. Ala. Code 1975, § 13A-5-45(f). Thus, in Waldrop's case, the jury, and not the trial judge, determined the existence of the "aggravating circumstance necessary for imposition of the death penalty." Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Therefore, the findings reflected in the jury's verdict alone exposed Waldrop to a range of punishment that had as its maximum the death penalty. This is all Ring and Apprendi require.
" '....
" 'Waldrop also claims that Ring and Apprendi require that the jury, and not the trial court, determine whether the aggravating circumstances outweigh the mitigating circumstances. See Ala. Code 1975, §§ 13A-5-46(e), 13A-5-47(e), and 13A-5-48. Specifically, Waldrop claims that the weighing process is a "finding of fact" that raises the authorized maximum punishment to the death penalty. Waldrop and several of the amici curiae claim that, after Ring, this determination must be found by the jury to exist beyond a reasonable doubt. Because in the instant case the trial judge, and not the jury, made this determination, Waldrop claims his Sixth Amendment rights were violated.
" 'Contrary to Waldrop's argument, the weighing process is not a factual determination. In fact, the relative "weight" of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof. As the United States Court of Appeals for the Eleventh Circuit noted, "While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard ... the relative weight is not." Ford v.Strickland, 696 F.2d 804, 818 (11th Cir. 1983). This is because weighing the aggravating circumstances and the mitigating circumstances is a process in which "the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence." Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Moreover, the Supreme Court has held that the sentencer in a capital case need not even be instructed as to how to weigh particular facts when making a sentencing decision. See Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995) (rejecting "the notion that 'a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required' "
(quoting Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) ) and holding that "the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer").
" 'Thus, the weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum. See California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) ("Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment."); Zant v. Stephens, 462 U.S. 862, 902, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in the judgment) ("sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does").
" 'In Ford v. Strickland, supra, the defendant claimed that "the crime of capital murder in Florida includes the element of mitigating circumstances not outweighing aggravating circumstances and that the capital sentencing proceeding in Florida involves new findings of fact significantly affecting punishment." Ford, 696 F.2d at 817. The United States Court of Appeals for the Eleventh Circuit rejected this argument, holding that "aggravating and mitigating circumstances are not facts or elements of the crime. Rather, they channel and restrict the sentencer's discretion in a structured way after guilt has been fixed." 696 F.2d at 818. Furthermore, in addressing the defendant's claim that the State must prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances, the court stated that the defendant's argument
" ' "seriously confuses proof of facts and the weighing of facts in sentencing. While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. [1950], 40 L.Ed.2d 295 (1974), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party."
" ' 696 F.2d at 818. Alabama courts have adopted the Eleventh Circuit's rationale. See Lawhorn v. State, 581 So.2d 1159, 1171 (Ala. Crim. App. 1990) ("while the existence of an aggravating or mitigating circumstance is a fact susceptible to proof, the relative weight of each is not; the process of weighing, unlike facts, is not susceptible to proof by either party"); see also Melson v. State, 775 So.2d 857, 900-901 (Ala. Crim. App. 1999) ; Morrison v. State, 500 So.2d 36, 45 (Ala. Crim. App. 1985).
" 'Thus, the determination whether the aggravating circumstances outweigh the mitigating circumstances is not a finding of fact or an element of the offense. Consequently, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.'
" Ex parte Waldrop, 859 So.2d at 1187-90 (footnotes omitted). This Court concluded that 'all [that] Ring and Apprendi require' is that 'the jury ... determine[ ] the existence of the "aggravating circumstance necessary for imposition of the death penalty." ' 859 So.2d at 1188 (quoting Ring, 536 U.S. at 609, 122 S.Ct. 2428 ), and upheld Alabama's capital-sentencing scheme as constitutional when a defendant's capital-murder conviction included a finding by the jury of an aggravating circumstance making the defendant eligible for the death sentence.
"In Ex parte McNabb, 887 So.2d 998 (Ala. 2004), this Court further held that the Sixth Amendment right to a trial by jury is satisfied and a death sentence may be imposed if a jury unanimously finds an aggravating circumstance during the penalty phase or by special-verdict form. McNabb emphasized that a jury, not the judge, must find the existence of at least one aggravating factor for a resulting death sentence to comport with the Sixth Amendment.
"The United States Supreme Court in its recent decision in Hurst applied its holding in Ring to Florida's capital-sentencing scheme and held that Florida's capital-sentencing scheme was unconstitutional because, under that scheme, the trial judge, not the jury, made the 'findings necessary to impose the death penalty.' 577 U.S. ----, 136 S.Ct. at 622. Specifically, the Court held that Florida's capital-sentencing scheme violated the Sixth Amendment right to a trial by jury because the judge, not the jury, found the existence of the aggravating circumstance that made Hurst death eligible. The Court emphasized that the Sixth Amendment requires that the specific findings authorizing a sentence of death must be made by a jury, stating:
" 'Florida concedes that Ring required a jury to find every fact necessary to render Hurst eligible for the death penalty. But Florida argues that when Hurst's sentencing jury recommended a death sentence, it "necessarily included a finding of an aggravating circumstance." ... The State contends that this finding qualified Hurst for the death penalty under Florida law, thus satisfying Ring. "[T]he additional requirement that a judge also find an aggravator," Florida concludes, "only provides the defendant additional protection." ...
" 'The State fails to appreciate the central and singular role the judge plays under Florida law. ... [T]he Florida sentencing statute does not make a defendant eligible for death until "findings by the court that such person shall be punished by death." Fla. Stat. § 775.082(1) (emphasis added). The trial court alone must find "the facts ... [t]hat sufficient aggravating circumstances exist" and "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." § 921.141(3) .... "[T]he jury's function under the Florida death penalty statute is advisory only." Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.
" '....
" 'The Sixth Amendment protects a defendant's right to an impartial jury. This right required Florida to base Timothy Hurst's death sentence on a jury's verdict, not a judge's factfinding.
Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.'
" Hurst, 577 U.S. ----, 136 S.Ct. at 622-24 (final emphasis added).
"Bohannon contends that, in light of Hurst, Alabama's capital-sentencing scheme, like Florida's, is unconstitutional because, he says, in Alabama a jury does not make 'the critical findings necessary to impose the death penalty.' 577 U.S. ----, 136 S.Ct. at 622. He maintains that Hurst requires that the jury not only determine the existence of the aggravating circumstance that makes a defendant death-eligible but also determine that the existing aggravating circumstance outweighs any existing mitigating circumstances before a death sentence is constitutional. Bohannon reasons that because in Alabama the judge, when imposing a sentence of death, makes a finding of the existence of an aggravating circumstance independent of the jury's fact-finding and makes an independent determination that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances found to exist, the resulting death sentence is unconstitutional. We disagree.
"Our reading of Apprendi, Ring, and Hurst leads us to the conclusion that Alabama's capital-sentencing scheme is consistent with the Sixth Amendment. As previously recognized, Apprendi holds that any fact that elevates a defendant's sentence above the range established by a jury's verdict must be determined by the jury. Ring holds that the Sixth Amendment right to a jury trial requires that a jury 'find an aggravating circumstance necessary for imposition of the death penalty.' Ring, 536 U.S. at 585, 122 S.Ct. 2428. Hurst applies Ring and reiterates that a jury, not a judge, must find the existence of an aggravating factor to make a defendant death-eligible. Ring and Hurst require only that the jury find the existence of the aggravating factor that makes a defendant eligible for the death penalty-the plain language in those cases requires nothing more and nothing less. Accordingly, because in Alabama a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible, Alabama's capital-sentencing scheme does not violate the Sixth Amendment.
"Moreover, Hurst does not address the process of weighing the aggravating and mitigating circumstances or suggest that the jury must conduct the weighing process to satisfy the Sixth Amendment. This Court rejected that argument in Ex parte Waldrop, holding that that the Sixth Amendment 'do[es] not require that a jury weigh the aggravating circumstances and the mitigating circumstances' because, rather than being 'a factual determination,' the weighing process is 'a moral or legal judgment that takes into account a theoretically limitless set of facts.' 859 So.2d at 1190, 1189. Hurst focuses on the jury's factual finding of the existence of a aggravating circumstance to make a defendant death-eligible; it does not mention the jury's weighing of the aggravating and mitigating circumstances. The United States Supreme Court's holding in Hurst was based on an application, not an expansion, of Apprendi and Ring; consequently, no reason exists to disturb our decision in Ex parte Waldrop with regard to the weighing process. Furthermore, nothing in our review of Apprendi, Ring, and Hurst leads us to conclude that in Hurst the United States Supreme Court held that the Sixth Amendment requires that a jury impose a capital sentence. Apprendi expressly stated that trial courts may 'exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute.' 530 U.S. at 481, 120 S.Ct. 2348. Hurst does not disturb this holding.
"Bohannon's argument that the United States Supreme Court's overruling in Hurst of Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), which upheld Florida's capital-sentencing scheme against constitutional challenges, impacts the constitutionality of Alabama's capital-sentencing scheme is not persuasive. In Hurst, the United States Supreme Court specifically stated: 'The decisions [in Spaziano and Hildwin ] are overruled to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty.' Hurst, 577 U.S. ----, 136 S.Ct. at 624 (emphasis added). Because in Alabama a jury, not a judge, makes the finding of the existence of an aggravating circumstance that makes a capital defendant eligible for a sentence of death, Alabama's capital-sentencing scheme is not unconstitutional on this basis.
"Bohannon's death sentence is consistent with Apprendi, Ring, and Hurst and does not violate the Sixth Amendment. The jury, by its verdict finding Bohannon guilty of murder made capital because 'two or more persons [we]re murdered by the defendant by one act or pursuant to one scheme or course of conduct,' see § 13A-5-40(a)(10), Ala. Code 1975, also found the existence of the aggravating circumstance, provided in § 13A-5-49(9), Ala. Code 1975, that '[t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme of course of conduct,' which made Bohannon eligible for a sentence of death. See also § 13A-5-45(e), Ala. Code 1975 ('[A]ny aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing.'). Because the jury, not the judge, unanimously found the existence of an aggravating factor-the intentional causing of the death of two or more persons by one act or pursuant to one scheme of course of conduct-making Bohannon death-eligible, Bohannon's Sixth Amendment rights were not violated.
"....
"Next, Bohannon contends that an instruction to the jury that its sentence is merely advisory conflicts with Hurst because, he says, Hurst establishes that an 'advisory recommendation' by the jury is insufficient as the 'necessary factual finding that Ring requires.' Hurst, 577 U.S. ----, 136 S.Ct. at 622 (holding that the 'advisory' recommendation by the jury in Florida's capital-sentencing scheme was inadequate as the 'necessary factual finding that Ring requires'). Bohannon ignores the fact that the finding required by Hurst to be made by the jury, i.e., the existence of the aggravating factor that makes a defendant death-eligible, is indeed made by the jury, not the judge, in Alabama. Nothing in Apprendi, Ring, or Hurst suggests that, once the jury finds the existence of the aggravating circumstance that establishes the range of punishment to include death, the jury cannot make a recommendation for the judge to consider in determining the appropriate sentence or that the judge cannot evaluate the jury's sentencing recommendation to determine the appropriate sentence within the statutory range. Therefore, the making of a sentencing recommendation by the jury and the judge's use of the jury's recommendation to determine the appropriate sentence does not conflict with Hurst."

Ex parte Bohannon, 222 So. 3d at 528-34. See also State v.Billups, 223 So. 3d 954, 958 (Ala. Crim. App. 2016) (holding that the Supreme Court of the United States's decision in Hurst did not invalidate Alabama's capital-sentencing scheme).

Here, as in Bohannon, Wimbley's jury unanimously found beyond a reasonable doubt the existence of an aggravating circumstance during the guilt phase of his trial. See § 13A-5-45(e), Ala. Code 1975 ("[A]ny aggravating circumstance which the verdict convicting the defendant establishes was proven beyond a reasonable doubt at trial shall be considered as proven beyond a reasonable doubt for purposes of the sentence hearing."). Specifically, the jury found Wimbley guilty of murder made capital because it was committed during the course of a robbery. See § 13A-5-40(a)(2), Ala. Code 1975 (defining the following capital offense: "Murder by the defendant during a robbery in the first degree."); § 13A-5-49(4), Ala. Code 1975 (defining the following aggravating circumstance: "The capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit ... robbery."). Consequently, the jury's guilt-phase verdict satisfied Wimbley's Sixth Amendment right to a jury finding as to the existence of an aggravating circumstance. That, as the Alabama Supreme Court explained, is all that " Ring and Hurst require ... nothing more and nothing less." Ex parte Bohannon, 222 So. 3d at 532.

Accordingly, Wimbley's capital-murder convictions and sentences of death are affirmed.

AFFIRMED.

Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

Kellum, J., not sitting.

Alabama Supreme Court 1160546

      Windom, P.J., concurred. Kellum, J., concurred in part and concurred in the result on a guilt-phase issue. Burke, J., concurred in the result. Welch and Joiner, JJ., dissented on a guilt-phase issue.

      The facts of Wimbley's crimes are detailed in Wimbley, 191 So.3d at 192-94, and will not be repeated here.


text:
    Thomas Douglas ARTHUR v. STATE of Alabama
    CR-16-0820
    Court of Criminal Appeals of Alabama.
    May 23, 2017
    Matthew Swerdlin, Birmingham; and Suhana S. Han, Adam R. Brebner, Kate L. Doniger, and Akash M. Toprani, New York, New York, for appellant.
    Steve Marshall, atty. gen., and Thomas M. Govan, deputy atty. gen., and Stephen M. Frisby and Lauren A. Simpson, asst. attys. gen., for appellee.
   PER CURIAM.

Thomas Douglas Arthur appeals from the Montgomery Circuit Court's dismissal of his complaint seeking a judgment declaring §§ 15-18-82 and -82.1, Ala. Code 1975, unconstitutional, which he contends he brought pursuant to § 6-6-220 et seq., Ala. Code 1975, and seeking injunctive relief. In that action, Arthur sought to have that court (1) declare that §§ 15-18-82 and -82.1, Ala. Code 1975, which deal with execution of convicts, violate Art. III, § 42, Ala. Const. 1901, the separation-of-powers provision, as an unconstitutional delegation by the legislative branch of lawmaking authority to the executive branch; (2) declare that §§ 15-18-82 and -82.1, Ala. Code 1975, violate Art. I, § 6, of the Ala. Const. 1901 by depriving Arthur of due process of law; and (3) enjoin the State from executing Arthur pursuant to a method of execution determined by the executive branch, specifically the Alabama Department of Corrections. The State moved to dismiss the declaratory-judgment action, arguing that the Montgomery Circuit Court did not have subject-matter jurisdiction over the action, that the claims raised by Arthur were barred by the statute of limitations, by the doctrine of laches, and by the doctrine of res judicata, and that the action failed to state a claim upon which relief could be granted. On May 8, 2017, the Montgomery Circuit Court entered the following order:

"Arthur filed a declaratory judgment action rooted in the premise that Alabama's death penalty statutes unconstitutionally delegate to the [Alabama Department of Corrections] unfettered discretion to determine lethal injection protocol in violation of the separation of powers provision of the Alabama Constitution.
"The Court believes that the action should have been filed as a Rule 32 [Ala. R. Crim. P.] petition and further concludes that such action would be precluded as time-barred and successive.
"Case dismissed."

Arthur filed his notice of appeal to the Supreme Court of Alabama the next day. On May 10, 2017, the Supreme Court transferred the appeal to the Alabama Court of Civil Appeals because it appeared from his notice of appeal that Arthur intended to appeal the case to the Court of Civil Appeals. The same day, the Court of Civil Appeals transferred the appeal back to the Supreme Court citing a lack of subject-matter jurisdiction. On May 16, 2017, the Supreme Court again transferred the appeal, this time to this court. In its order transferring the appeal to this court, the Supreme Court noted that the appeal appeared to be in the original appellate jurisdiction of the Court of Criminal Appeals because it appeared that "this proceeding in substance seeks relief from a sentence on constitutional grounds, from which the proper appellate jurisdiction lies in the Court of Criminal Appeals." In support of its holding, the Supreme Court cited its decision in Citizenship Trust v. Keddie-Hill, 68 So.3d 99 (Ala. 2011), and Rules 32.1 and 32.4, Ala. R. Crim. P.

The Supreme Court's determination that Arthur's declaratory-judgment action is in substance a Rule 32, Ala. R. Crim. P., petition for postconviction relief is now the law of the case. The "law of the case" doctrine, first cited by Justice Holmes over a century ago in Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912), "merely expresses the practice of courts generally to refuse to reopen what has been decided." Id. at 444, 32 S.Ct. 739. In Ex parte Woodard, 883 So.2d 256, 258 (Ala. Crim. App. 2003), this Court recognized the following summation of the doctrine by the Florida Supreme Court:

" 'Generally, under the doctrine of the law of the case, "all questions of law which have been decided by the highest appellate court become the law of the case which must be followed in subsequent proceedings, both in the lower and appellate courts." Brunner Enters., Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla. 1984). However, the doctrine is not an absolute mandate, but rather a self-imposed restraint that courts abide by to promote finality and efficiency in the judicial process and prevent relitigation of the same issue in a case.' "

(Quoting State v. Owen, 696 So.2d 715, 720 (Fla. 1997).)

Because Arthur's action has been determined to be a petition for postconviction relief, Montgomery County is not the proper venue for his action. Rule 32.5, Ala. R. Crim. P., states:

"Petitions filed under this rule shall be filed in and decided by the court in which the petitioner was convicted. If a petition is filed with another court, it shall be transferred to the court where the conviction occurred."

Instead of dismissing Arthur's action, the Montgomery Circuit Court should have transferred it to the Jefferson Circuit Court, the court in which Arthur was convicted. See Barker v. State, 766 So.2d 988 (Ala. Crim. App. 2000).

This Court notes that on April 7, 2017, the Jefferson Circuit Court entered an order dismissing another Rule 32 petition for postconviction relief Arthur had filed with that court. Arthur appealed the dismissal of that petition for postconviction relief to this Court, and that appeal was docketed as case no. CR-16-0776. That appeal is currently pending before this Court. "The general rule is that jurisdiction of one case cannot be in two courts at the same time." Ex parte Hargett, 772 So.2d 481, 483 (Ala. Crim. App. 1999). Thus, this action must be held in abeyance until this Court issues its certificate of judgment in case no. CR-16-0776. See Barnes v. State, 621 So.2d 329 (Ala. Crim. App. 1992).

Accordingly, the judgment of the Montgomery Circuit Court is reversed. This matter is remanded to that court for it to vacate its judgment and transfer the case to the Jefferson Circuit Court pursuant to Rule 32.5. Once the matter is transferred to the Jefferson Circuit Court, that court should hold it in abeyance until this Court issues its certificate of judgment in case no. CR-16-0776.

REVERSED AND REMANDED.

Welch, Kellum, Burke, and Joiner, JJ., concur. Windom, P.J., recuses herself.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Sherry SMITH, Personal Representative of the Estate of Julius B. Smith, Appellee.
    Case No. 5D17-126
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 27, 2018
    Charles R.A. Morse, of Jones Day, New York, NY, Jason T. Burnette, of Jones Day, Atlanta, GA, Troy A. Fuhrman, and Marie Attaway Borland, of Hill Ward Henderson, Tampa, and Donald B. Ayer, of Jones Day, Washington, D.C., for Appellant.
    David J. Sales, and Daniel R. Hoffman, of David J. Sales, PA, Jupiter, and William J. Wichmann, of William J. Wichmann, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294 (Fla. 2017) ; R.J. Reynolds Tobacco Co. v. Marotta , 214 So.3d 590 (Fla. 2017) ; R.J. Reynolds Tobacco Co. v. Ciccone , 190 So.3d 1028 (Fla. 2016) ; Philip Morris USA, Inc. v. Douglas , 110 So.3d 419 (Fla. 2013) ; Wald v. Grainger , 64 So.3d 1201 (Fla. 2011).

EVANDER, LAMBERT, and EDWARDS, JJ., concur.


text:
    Joseph Anthony SIEBERT, Appellant, v. FERRELLGAS, INC., Ferrellgas, L.P. and Robert Wayne Doby, Appellees.
    Case No. 5D17-1249
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 27, 2018
    Michael M. Bell, and David B. Blessing, of Bell & Roper, P.A., Orlando, and Donald Van Dingenen, of Van Dingenen, P.A., Winter Park, for Appellant.
    Jeffrey E. Appel and Claude M. Harden, III, of Appel Harden Law Group, P.A., Lakeland, for Appellees, Ferrellgas, Inc. and Ferrellgas, L.P., LLP.
    No Appearance for Appellee, Robert Wayne Doby.
   PER CURIAM.

AFFIRMED. See Tractor Supply Co. v. Kent , 966 So.2d 978 (Fla. 5th DCA 2007).

EVANDER, LAMBERT and EDWARDS, JJ., concur.


author: Per Curiam.

text:
    Johnny WELCH, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-4980
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Johnny Welch, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen J. Lonergan, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

Because this petition seeks belated appeal of a lower tribunal order in a civil matter, the petition for belated appeal is denied. See Powell v. Fla. Dep't of Corrections , 727 So.2d 1103 (Fla. 1st DCA 1999) (stating that because the proceedings below were civil in nature, the provisions of Florida Rule of Appellate Procedure 9.141(c) are not applicable). This disposition is without prejudice to Petitioner's right, if any he has, to seek relief in the lower tribunal by a motion pursuant to Florida Rule of Civil Procedure 1.540. See Snelson v. Snelson , 440 So.2d 477 (Fla. 5th DCA 1983).

Rowe, Ray, and Makar, JJ., concur.


text:
    ESTATE OF Wallace B. MARTIN, BY AND THROUGH Joan Hickey MARTIN, Personal Representative, Appellant, v. NORTHPORT HEALTH SERVICES OF FLORIDA, L.L.C.; NHS Management, L.L.C.; and Peter Misura (as to Crystal River Health and Rehabilitation Center), Appellees.
    Case No. 5D17-3633
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018
    Megan L. Gisclar and Joanna Greber Detloff, of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Dale R. Sisco and Kristi Neher Davisson, of Sisco-Law, Tampa, for Appellees.
   PER CURIAM.

We affirm the trial court's order compelling arbitration in all respects. See Northport Health Servs. of Fla., LLC v. Louis , --- So.3d ----, 43 Fla. L. Weekly D505 (Fla. 5th DCA Mar. 2, 2018).

AFFIRMED.

Cohen, C.J., and Evander and Torpy, JJ., concur.

      Appellees did not cross-appeal the trial court's determination that the arbitration agreement provision requiring the application of Alabama law on discovery was invalid.


text:
    Willie J. HUNTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0740
    District Court of Appeal of Florida, First District.
    March 29, 2018 Rehearing Denied April 3, 2018
    Willie J. Hunter, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Wolf, Lewis, and Jay, JJ., concur.


text:
    Richard BRYSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0517
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Richard Bryson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied as premature.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Danielle A. EVANS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-0160
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 29, 2018
    Danielle A. Evans, Ocala, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 19, 2017 judgment and sentence rendered in Case No. 2016-CF-002006-A-O, in the Ninth Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER, LAMBERT, JJ., concur.