author: MURDOCK, Justice.

text:
    Margie WYLIE v. ESTATE OF Derrell COCKRELL, Timothy Cockrell, Miranda Cockrell, Janet Cockrell, Dakoda Zarlip, and Kanada Zarlip
    1141405
    Supreme Court of Alabama.
    November 17, 2017
    J. Doyle Fuller, Susan G. Copeland, and Jacob A. Fuller of Fuller & Copeland, Montgomery, for appellant.
    Ed Parish, Jr., of The Parish Law Firm, Montgomery; Timothy C. Halstrom, Montgomery; and Carl O. Pilgrim, Montgomery, for appellees.
    On Application for Rehearing
   MURDOCK, Justice.

The opinion of September 30, 2016, is withdrawn, and the following is substituted therefor.

Margie Wylie appeals from the Montgomery Circuit Court's affirmance of the Montgomery Probate Court's decision removing her as personal representative of the estate of Derrell Cockrell, appointing a successor personal representative for the estate, and assessing over $19,000 in costs against Wylie. We affirm the judgment of the circuit court in part and reverse it in part.

I. Facts

In 1996, Derrell Cockrell ("Derrell") formed Alabama Steel Erectors, L.L.C. ("ASE"), a company that constructed metal buildings. The articles of organization of ASE stated that Derrell and Wylie were ASE's initial members and that "[o]perational management in [ASE] shall be solely vested in Derrell Thomas Cockrell." The articles also stated that "[r]emaining members shall have the right to continue the business of [ASE] following the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member or upon the occurrence of any other real event which terminates the continued membership of a member." The "operating agreement" of ASE reiterated that Derrell would have "sole operational authority in [ASE]," but it added that "the duties of bookkeeping have been assigned to Marge Wylie." The operating agreement also provided that "both parties shall not be entitled to one-half of each of the profits from the operation of [ASE]" and that "the share of profits and losses shall be determined by the managing partner, Derrell Thomas Cockrell." According to testimony in the hearing in the probate court, as well as a 2009 federal tax return for ASE, Derrell held a 90 percent interest and Wylie held a 10 percent interest in ASE.

Derrell died on October 4, 2009. On November 30, 2009, the Montgomery Probate Court issued letters testamentary to Wylie as personal representative of Derrell's estate. Derrell's will devised his "house and curtilidge [sic] located at 463 Larkwood Drive, Montgomery, Alabama," to Karen Jankowski, a woman described by witnesses in the probate-court hearing as Derrell's girlfriend who had been living with him before his death. In his will, Derrell left "all [his] guns, [his] boat and [his] 1996 Pick Up Truck" to his brother, Edwin Cockrell. The will further provided:

"I hereby give and devise all of the rest, residue and remainder of all property owned by me or in which I have an interest, wherever located, whether real, personal, or mixed, as follows:
"A. A One-fourth share each to Janet Cockrell, Dakoda Zarlip, and Kanada Zarlip, per stirpes.
"B. A One-fourth share split between Miranda Cockrell and Timothy Cockrell, per stirpes."

Timothy Cockrell and Janet Cockrell are Derrell's children. Miranda Cockrell is Timothy's daughter, i.e., Derrell's granddaughter. The relationship, if any, of Dakoda Zarlip and Kanada Zarlip to Derrell is not reflected in the record. Timothy, Janet, Miranda, Dakoda, and Kanada are hereinafter collectively referred to as the "residuary devisees." We note that, at some point in the estate-administration proceedings, the probate court appointed a guardian ad litem to protect the interests of Miranda, Dakoda, and Kanada, who are minors.

With regard to Wylie's duties as personal representative of Derrell's estate, the will provided that Derrell

"relieve[d Wylie] ... from making any inventory or accounting to any person or Court for [her] administration of my estate; ... [gave] and grant[ed] to [Wylie] full power and authority in the administration of my estate, including full power and authority to manage, operate or liquidate any business or businesses in which I may be engaged at the time of my death, as full to all intents and purposes as I myself could do, if I were living."

According to testimony from two witnesses at the probate-court hearing, Wylie approached Timothy at Derrell's funeral visitation on October 7, 2009-before she had been appointed personal representative of Derrell's estate-and told him that he would be getting only $5,000 from Derrell's estate and that he should sign certain documents to acknowledge his entitlement to the money. According to the witnesses, Timothy told Wylie to leave him alone.

On September 26, 2011, Timothy filed a motion in the probate court pursuant to § 43-2-530, Ala. Code 1975, to require Wylie to file an accounting of the estate.

Wylie dissolved ASE on October 11, 2011.

On October 13, 2011, the probate court entered an order requiring Wylie to "appear and file an accounting and vouchers and to give cause ... why [the estate administration] ha[d] not been judicially settled." The probate court reissued identical orders to Wylie on December 2, 2011, and January 12, 2012, all of which ordered Wylie to provide an accounting with vouchers of expenses that had been paid by the estate.

Timothy's counsel also made repeated attempts to obtain vouchers from Wylie's counsel. He wrote letters requesting such vouchers, and he filed two motions to compel Wylie to provide vouchers, filed on June 25, 2012, and August 3, 2012, respectively. Wylie's counsel never provided the vouchers.

On April 3, 2012, Wylie filed what she styled a "Petition and Accounting for Final Settlement" of Derrell's estate. The document contained no vouchers documenting expenses paid by the estate, but it did contain copies of several checks written on ASE's bank account and signed by Wylie. In fact, most of the documentation contained in the submission from Wylie consisted of information about ASE's bank account. This was a source of repeated confusion in the probate-court hearing. For example, during one exchange in the hearing, the guardian ad litem was questioning Wylie about a certain expense listed in her accounting:

"[Wylie:] That's-and this was income that was earned [by ASE] after [Derrell Cockrell's] death.
"[Guardian ad Litem:] But you told the Court it was estate income when you filed it under oath, the estate of Derrell Cockrell. You told the Court when you reported that you had received that for the benefit of the estate.
"[Wylie's counsel]: Judge, I don't know what his point is. I made the point to the Court, yes, that's what it says, but that was a mistake. It's for the company, not the estate. You've got to decide that. Maybe the Court is going to rule that the assets of the company are assets of the estate. I don't know. But he keeps trying to make her say something other than what the documents are.
"We stipulate to the Court that we included, maybe erroneously, matters in this accounting that have to do with the company as opposed to Mr. Cockrell personally. That's what happened, and that's what these facts are."

Wylie's counsel stated numerous times in the hearing that he had "erroneously included in this accounting money and assets that relate to the business" of ASE. He even admitted that the accounting "was inaccurate and incomplete," but nothing in the record indicates that Wylie ever filed anything to correct the accounting.

Following Wylie's filing, Timothy filed a petition to remove Wylie as personal representative of Derrell's estate. On August 30, 2013, the probate court held a hearing on both Wylie's petition for final settlement and Timothy's petition to remove Wylie as personal representative. The probate court heard from four witnesses, with the majority of the testimony coming from Wylie.

In her testimony, Wylie, among other things, admitted that she did not open an estate bank account and that she did not segregate estate funds from ASE's funds. Wylie stated that she had written checks on ASE's bank account for a total of $46,000 as repayment for a loan she claimed she had made to ASE, but she also admitted that the loan was an unsecured debt and that there was no documentation to support the loan. Wylie admitted that she paid Jankowski's personal expenses and debts from ASE's account after Derrell's death. Wylie stated that she did this because it was what Derrell wanted, despite the fact that such a request was not included in his will. Wylie admitted that she gave all the furnishings in the house to Jankowski because it was her understanding that the will required this. Wylie stated that she thought that "curtilage" meant furnishings in the house. Wylie admitted that she did not consult an attorney to ascertain the meaning of terms in the will. Wylie admitted that she paid her personal credit-card bills out of the ASE account following Derrell's death, claiming that she had purchased supplies for ASE with her credit card because ASE did not have a corporate credit card. Wylie further stated that she "was living out of the account" and that Derrell did the same when he was alive.

According to the accounting Wylie submitted with the petition for final settlement, ASE had $145,000 in its bank account at the time of Derrell's death and it received $206,000 in income in the two years following his death. In contrast, Wylie testified at trial that

"[t]here wasn't any money in the account when [Derrell] died except for the $55,000 that was left in the bank account. And then you subtract what was the payables from that, and I think it left something like $10,000. Then we had-that was in the account that was available."

Wylie further testified that the only asset ASE had at Derrell's death was accumulated, undistributed profits of $9,700. She answered a question as to the value of ASE by stating that Derrell "had 90 percent interest in the profits of the company"-which she asserted were "like 9-or $10,000"-an amount clearly based on ASE's cash on hand minus its debts at the time of Derrell's death, not its value as a going concern. Wylie also testified that "the value of [Derrell's] interest in the business as of the date of his death ... was like $9,700," and Wylie's counsel stated to the probate court: "[T]he only thing [Derrell's] estate was entitled to was the net value of that business on the date of his death, $9,500." Wylie stated that overall she had distributed $17,000 to the residuary devisees, which she asserts is more than the amount to which the estate was entitled.

A federal tax return for the calendar year 2010, filed as a final return for ASE, reflected on a Schedule K-1 for Wylie a beginning share of 10 percent of ASE and an ending share of 100 percent. Wylie's personal tax returns for calendar year 2010 also represented that Wylie held ASE as a sole proprietorship.

On October 9, 2013, the probate court entered an order denying Wylie's petition for final settlement and removing her as personal representative of Derrell's estate. In the order, the probate court concluded that Wylie had:

"1. ... repeatedly and consistently failed to adhere to and comply with the lawful Orders of the Judge of Probate in this matter;
"2. ... wasted, misappropriated and/or converted multiple assets of the Estate to her own use and benefit or to the use and benefit of others;
"3. ... failed to identify and segregate the assets of the Estate and failed to open a separate estate checking account for the deposit of funds of the Estate of Derrell T. Cockrell, Deceased. [Wylie] proceeded to commingle Estate assets with the assets of [ASE], and continued to operate the business of [ASE] without first identifying and segregating the cash and other assets which were the property of the Estate and subject to probate proceedings under the Will of [Derrell];
"....
"5. ... attempt[ed] to claim and convert the ownership of the assets of [ASE] to her own use and benefit, in contravention of the rights of the beneficiaries under the Will of [Derrell]. In furtherance of this position, Ms. Wylie has made affirmative representations in sworn oral testimony and in written form on personal federal and state tax returns filed with this Court in which she stated that she was the sole owner of [ASE] for the year in which [ASE] was dissolved, and as part of the dissolution process claimed its assets on her individual income tax returns for that year, all in derogation of the terms and conditions of the Will of [Derrell] and the rights of the beneficiaries under the Will."

The October 9, 2013, order also appointed a successor personal representative for the estate and taxed "costs of this proceeding in the amount of $19,856.20, which includes a reasonable fee of $18,045.00 for the services of Carl Pilgrim, Esq., as Guardian ad Litem, ... against the former personal representative, Margie Wylie."

On October 11, 2013, pursuant to § 12-2-21, Ala. Code 1975, Wylie filed an appeal of the probate court's order to the Montgomery Circuit Court. On September 21, 2015, the circuit court entered an order affirming the probate court's October 9, 2013, order. Wylie appealed to this Court. See Ala. Code 1975, § 12-22-22 ("An appeal to the Supreme Court may be taken from the judgment of the circuit court on an appeal brought to such court under the provisions of this division.").

II. Standard of Review

As this Court recently stated in Hardy ex rel. Estate of Carter v. Hardin, 200 So.3d 622 (Ala. 2016) :

"The circuit court was sitting as an appellate court in this case and was bound by the ore tenus rule. The ore tenus rule required the circuit court to defer to the probate court's factual determinations where evidence supported those determinations. Specifically, where evidence is presented ore tenus, the findings of the trial court are presumed correct 'and will not be disturbed on appeal absent a showing of plain and palpable error.' Pilalas v. Baldwin Cnty. Sav. & Loan Ass'n, 549 So.2d 92, 95 (Ala. 1989) ; see also Williams v. Thornton, 274 Ala. 143, 144, 145 So.2d 828, 829 (1962) ('The finding of the Probate Court based on the examination of witnesses ore tenus is presumed to be correct, and will not be disturbed by this court or the Circuit Court unless palpably erroneous.').
"As this Court stated in Yeager v. Lucy, 998 So.2d 460 (Ala. 2008) :
" ' " 'The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to 'disputed issues of fact,' whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995)." '
" 998 So.2d at 463 (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala. 2000) ); see also, e.g., Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ. App. 1994) ('[I]n determining the weight to be accorded to the testimony of any witness, the trial court may consider the demeanor of the witness and the witness's apparent candor or evasiveness.... It is not the province of this court to override the trial court's observations.'). 'Under the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness.' Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala. 1992). However, '[t]he ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's conclusions of law or the incorrect application of law to the facts.' Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005)."

200 So.3d at 629 ; see also Womack v. Estate of Womack, 826 So.2d 138 (Ala. 2002). "This Court ' "review[s] the trial court's conclusions of law and its application of law to the facts under the de novo standard of review." ' " Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala. 2010) (quoting Ex parte J.E., 1 So.3d 1002, 1008 (Ala. 2008), quoting in turn Washington v. State, 922 So.2d 145, 158 (Ala. Crim. App. 2005) ).

III. Analysis

A. Wylie's Removal as Personal Representative

Wylie contends that the circuit court erred by affirming the probate court's order removing her as personal representative of the estate. Section 43-2-290, Ala. Code 1975, provides:

"An administrator may be removed, and his letters revoked for his removal from the state; and an administrator or executor may be removed and his letters revoked for any of the following causes:
"(1) Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties; or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.
"(2) Failure to make and return inventories or accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.
"(3) The wasting, embezzlement or any other maladministration of the estate.
"(4) The using of any of the funds of the estate for his own benefit.
"(5) A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of 12 months or more."

The probate court had concluded that evidence supported Wylie's removal as personal representative under subparagraphs (2), (3), and (4) of § 43-2-290 ; the circuit court affirmed.

Wylie takes issue with the circuit court's affirmance of the probate court's decision to remove her as personal representative because, she says, that decision was based on a misunderstanding of the facts and the law. Specifically, Wylie apparently takes the position that, upon Derrell's death, she became the sole remaining holder of all interests in ASE, except to the extent of the estate's interest in whatever profits had been accumulated but not paid out before Derrell's death. Based on this position, she asserts in her appellate brief that

"[a] reading of [the probate court's] decision makes it abundantly clear that the Probate Court concluded that the assets of [ASE] were assets of [Derrell's] Estate and that Mrs. Wylie['s] ... management of [ASE's assets] after [Derrell's] death amounted to 'commingling' of funds and misappropriation of funds by Mrs. Wylie. It was based, in large part, on that finding that Mrs. Wylie was removed as [personal representative]."

Wylie's argument misunderstands the judgments of the probate court and the circuit court. Both courts clearly understood that the assets of ASE did not become assets of the estate at Derrell's death. The probate court specifically determined that "[Wylie] proceeded to commingle Estate assets with the assets of [ASE], and continued to operate the business of [ASE] without first identifying and segregating the cash and other assets which were the property of the Estate and subject to probate proceedings under the Will of [Derrell]." (Emphasis added.) Such findings belie Wylie's assertion that the probate court thought that the assets of ASE became the assets of Derrell's estate immediately upon Derrell's death.

We also take note of Wylie's argument that "[t]he only interest that the Estate of Derrell Cockrell had in [ASE] was the value of [ASE] on the date of his death" and that "the value of [ASE] at the time of [Derrell's] death was $9,700." Yet, at trial, Wylie testified that Derrell had only a 90 percent interest in ASE when he died. Likewise, Wylie testified that "the value of [Derrell's] interest in the business as of the date of his death ... was like $9,700," a figure corresponding to 100%, not 90%, of the value of the undistributed net profits held by ASE at the time of Derrell's death, not its value as a going concern. It appears that Wylie takes the position that ASE had no value as a going concern at the time of Derrell's death and that the value of ASE at the time of Derrell's death was merely the value of the undistributed net profits it held. For the sake of moving forward, we will assume that Wylie's position is that the estate had a claim to 90 percent of "the value of [ASE] on the date of [Derrell's] death," not 100% of that value, and thus that the estate's interest was limited to 90 percent of "$9,700," the alleged undistributed profits of ASE at Derrell's death, not 90 percent of ASE's value as a going concern. Indeed, we are compelled to the latter conclusion because Wylie insists she had no duty to account to the residuary devisees for her operation of ASE after Derrell's death and that, even if she did mismanage the finances of ASE, the residuary devisees could not challenge that mismanagement because it involves property of ASE in which they have no interest.

We first observe that Wylie failed to provide a complete and accurate accounting of her handling of the estate. In failing to do so she violated no less than three orders of the probate court directing her to provide such an accounting. This failure to follow multiple orders issued by the probate court is sufficient in itself under § 43-2-290(2) to remove Wylie as personal representative of the estate.

Furthermore, in the probate-court hearing, Wylie's counsel admitted that the accounting Wylie did provide with her petition for final settlement of the estate was "inaccurate and incomplete" because it contained documentation from the business records of ASE instead of documentation regarding the estate. It is clear from reviewing the transcript of the probate-court hearing and the accounting submitted by Wylie that this alleged mistake corresponded with the probate court's conclusion that Wylie commingled funds of the estate and of ASE and that, in so doing, she used funds of the estate for her personal benefit and for the benefit of others who were not residuary devisees.

In addition, Wylie admitted in her testimony that she failed to consult an attorney regarding the meaning of terms used in Derrell's will. This failure led Wylie, for example, to assume that the word "curtilage" referred to furnishings in the house, and so she deeded all the furnishings to Jankowski. Black's Law Dictionary defines "curtilage" as "[t]he land or yard adjoining a house, usu[ally] within an enclosure." Black's Law Dictionary 466 (10th ed. 2014). The furnishings should have been part of the residuary estate to be distributed to the residuary devisees in shares according to the will. This admitted mistake constituted another legitimate reason for Wylie's removal as personal representative.

In other words, based on the foregoing, and regardless of Wylie's treatment of ASE, the probate court's judgment removing her as personal representative is due to be affirmed. Nevertheless we will address Wylie's arguments as to her handling of ASE following Derrell's death.

In general Wylie's arguments as to her handling of ASE and its operations following Derrell's death reflect an incorrect understanding of the law regarding limited-liability companies. Wylie argues in her appellate brief:

"Since the operating agreement of [ASE] made no provision about the death of [Derrell] and its effect on his membership, state law provides that [Derrell's] membership terminated. Given that the operating agreement allowed Mrs. Wylie to continue the business after [Derrell's] death, she became the sole member with freedom to operate [ASE] as [she] saw fit.
"Once [Derrell's] membership in the LLC ceased, neither his estate nor his heirs became members and hence had no further interest therein other than the value of his membership interest on the date of his death.
"Any claim of misappropriation of assets of the LLC by its sole member is a claim belonging to the LLC itself and thus neither a former member nor his heirs have standing to complain."

(Emphasis added.)

Wylie is correct that, under state law, upon his death Derrell ceased to be a member of ASE. Section 10A-5-6.06, Ala. Code 1975, provides, in pertinent part:

"(b) Subject to contrary provisions in the operating agreement, or written consent of all members at the time, a person ceases to be a member upon the occurrence of one or more of the following events listed in the following subdivision or paragraphs:
"....
"(3) In the case of a member who is an individual:
"a. The member dies.
"....
"(e) Upon a member's cessation of membership each of the following applies:
"(1) The member's governance rights terminate."

This Court has previously explained:

"The LLC Law distinguishes between membership in an LLC and 'financial rights' in an LLC. It defines a 'member' of an LLC as '[a] person reflected in the required records of a limited liability company as the owner of some governance rights of a membership interest in the limited liability company.' § 10A-5-1.02(7), Ala. Code 1975. 'Governance rights' are defined as '[a]ll a member's rights as a member of a limited liability company except financial rights, including without limitation, the rights to participate in the management of the limited liability company and to bind the limited liability company as provided in Section 10A-5-3.03.' § 10A-5-1.02(5), Ala. Code 1975.... 'Financial rights' are '[r]ights to a. share in profits and losses as provided in Section 10A-5-5.03, b. receive interim distributions as provided in Section 10A-5-5.04, and c. receive termination distributions as provided in Section 10A-5-7.05.' § 10A-5-1.02(3), Ala. Code 1975."

L.B. Whitfield, III Family LLC v. Whitfield, 150 So.3d 171, 183 (Ala. 2014) (emphasis omitted and emphasis added).

Section 10A-5-6.02, Ala. Code 1975, states, in pertinent part:

"(a) Except as otherwise provided in the operating agreement:
"(1) A membership interest in a limited liability company is assignable in whole or in part.
"....
"(3) An assignment only entitles the assignee to the financial rights of the assignor to the extent assigned."

Section 10A-5-6.04, Ala. Code 1975, states, in pertinent part:

"(a) Except as otherwise provided in the governing documents:
"(1) If a member who is an individual dies or if a court of competent jurisdiction adjudges a member to be incompetent to manage the member's person or property, the member's personal representative, conservator, legal representative, heirs, or legatees may exercise all the member's financial rights for the purpose of settling the member's estate or administering the member's property, including any power the member had to transfer the membership interest."

In Whitfield, this Court explained that "[s]ection 10A-5-6.04(a)(1) ... [is] concern[ed] with the decedent member's 'financial rights' as and to the extent those rights exist apart from other aspects of the membership in the limited liability company previously held by the decedent." 150 So.3d at 185 (emphasis omitted).

Under the foregoing law, when Derrell died, his membership in ASE ceased, but his financial rights in ASE (a 90% interest) passed to his estate, and his personal representative was empowered to transfer those financial rights in accordance with the directives in his will. Derrell's will provided that the residue of his property was to be divided among the residuary devisees, so Derrell's financial rights in ASE were due to be transferred to them.

Thus, Wylie is correct that the residuary devisees did not become members of ASE with governance rights and thus did not have a direct say in how Wylie operated ASE or in her decision ultimately to dissolve it. But Wylie is incorrect that the residuary devisees were entitled to only a 90 percent share of the undistributed "profits" ASE held on the date of Derrell's death. As the Whitfield Court noted: " 'Financial rights' are '[r]ights to a. share in profits and losses as provided in Section 10A-5-5.03,[ ] b. receive interim distributions as provided in Section 10A-5-5.04, and c. receive termination distributions as provided in Section 10A-5-7.05.' § 10A-5-1.02(3), Ala. Code 1975." 150 So.3d at 183.

It is undisputed that Timothy and the other residuary devisees did not receive continuing distributions from ASE (based on Derrell's 90% financial rights) for the period following Derrell's death through its dissolution in 2011, nor did they receive a distribution upon the dissolution of ASE. Instead, Wylie treated ASE as if she became its sole owner following Derrell's death. Wylie then proceeded to use ASE's finances to cover her own personal expenses. As the appellees note, "[t]his is a blatant conversion of the Estate assets for personal use."

In short, the evidence in the record and limited-liability-company law support the probate court's conclusion that Wylie converted assets of Derrell's estate for her own use and benefit and for the benefit of others who were not the residuary devisees and that she commingled funds of ASE and assets of the estate. Therefore, the circuit court did not exceed its discretion in affirming the probate court's decision to remove Wylie as personal representative of Derrell's estate.

In her application for rehearing, Wylie accuses this Court of violating appellate-review standards because this Court addresses certain statutes (discussed above) not included by the appellees in their arguments to the probate court, the circuit court, or this Court. She also makes a generalized assertion that this Court has misapplied certain statutes governing limited-liability companies.

As to the latter assertion, Wylie states:

"1. This Court[ ] misapplied the law when it held that, despite its finding that Derrell's membership interest in ASE terminated upon his death, his financial rights in ASE were transferred to his estate and those rights included ' " '[r]ights to a. share in profits and losses as provided in Section 10A-5-5.03, b. receive interim distributions as provided in Section 10A-5-7.05.' § 10A-5-1.02(3), Ala. Code 1975." [ L.B. Whitfield, III Family LLC v. Whitfield, ] 150 So.3d [171,] 183 [ (Ala. 2014) ].' ..."

Although Wylie makes the foregoing general assertion of error, she fails to demonstrate how this Court misunderstood or misapplied the statutes she cites or any other statute discussed in this opinion. Indeed, she appears to concede at one point that our decision reflects the application of the principle that, subject to due-process concerns, this Court " ' "will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge" ' " (quoting Wylie's application for rehearing, quoting Pavilion Dev., L.L.C. v. JBJ P'ship, 979 So.2d 24, 43 (Ala. 2007) (Murdock, J., concurring specially), quoting, in turn, Ex parte Wiginton, 743 So.2d 1071, 1072-73 (Ala. 1999) ). Nevertheless, Wylie contends, "this principle of law eviscerates the adversarial nature of our system of justice" in the present case because we allegedly relied on arguments, or at least statutes, not presented by the parties or considered by the judges below.

It was Wylie, however, in her brief on original submission, not this Court, who cited and discussed the rationale in Whitfield, and who raised the issue of the proper application of § 10A-5-6.04, and who discussed " '[f]inancial rights' [as] defined in § 10A-5-1.02(3)." Likewise, it was Wylie who argued to the probate court and to the circuit court that she had no duty to account to the residuary devisees regarding her treatment of ASE after Derrell's death because, she posited, the residuary devisees had no continuing interest in ASE. The residuary devisee's argued to the contrary, contending that Wylie had a duty to account to them and that her mishandling of ASE following Derrell's death (among other things) had adversely affected their rights. The probate court and the circuit court-courts that are presumed to know and follow the law even if they do not expressly note every statute or other authority that informs their understanding-correctly rejected Wylie's argument. See Ex parte Atchley, 936 So.2d 513, 516 (Ala. 2006) ("We presume that trial court judges know and follow the law.").

Our discussion of some authority in addition to that cited by Wylie or even by the appellees in order to fully respond to Wylie's arguments as an appellant is not improper-it is our obligation. When an appellant presents an erroneous legal position, it is our duty to exposit the law applicable to that position and to dispel that error. It is not for us to publish an opinion truncating our discussion of the law upon which the bench and bar and public will thereafter rely simply because the statute that makes the appellant's argument erroneous has been left out of the appellate briefs. In Ex parte Hutcherson, 677 So.2d 1205, 1209 (Ala. 1996), this Court reiterated the basic principle that, in order to secure a reversal of a judgment, an appellant must show error. It is our responsibility to determine whether error has been shown, and in executing that responsibility our duty is to the law. See United States v. Rogers, 45 U.S. (4 How.) 567, 572, 11 L.Ed. 1105 (1846) (Chief Justice Taney, speaking for the Court: "It is our duty to expound and execute the law as we find it.").

"In other words, our duty, first and foremost, is to the correctness of law. That is not something the parties ultimately dictate to us.
" ' " 'Appellate review does not consist of supine submission to erroneous legal concepts .... Our duty is to enunciate the law on the record facts. Neither the parties nor the trial judge, by agreement or by passivity, can force us to abdicate our appellate responsibility.' " '
" Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 960 (Ala. 2004) (quoting Forshey v. Principi, 284 F.3d 1335, 1357 n. 20 (Fed. Cir. 2002), quoting in turn Empire Life Ins. Co. of America v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972) )."

Ex parte Vanderwall, 201 So.3d 525, 541 (Ala. 2015) (Murdock, J., concurring specially). Wiley's position is without merit.

B. Payment of the Guardian ad Litem's Fee

Wylie next argues that the circuit court erred in affirming the probate court's decision requiring Wylie to pay the guardian ad litem's fee of $18,045. Wylie concedes that "[t]here is no dispute in this case that the appointment of a [guardian ad litem] was necessary." She argues, however, that the fee entered by the probate court was erroneous because, she contends, "there was never any motion, or evidentiary submission in the record before the Probate Court requesting or supporting a fee request from the [guardian ad litem]." Wylie also observes that the matter was not discussed in the probate-court hearing held August 30, 2013. Wylie argues that "[t]o award an $18,000-plus [guardian ad litem's] fee against Mrs. Wylie without notice, proof, or hearing" violates due process.

The law is clear that the probate court had the power to award a guardian ad litem fee's as part of the costs in the case. Rule 17(d), Ala. R. Civ. P., provides, in part:

"In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for services rendered in such cause, to be taxed as a part of the costs in such action, and which is to be paid when collected as other costs in the action, to such guardian ad litem."

See Rule 1(a), Ala. R. Civ. P.; see also Committee Comment to the Amendment to Rule 1(a) effective January 1, 2013 ("[T]he Rules of Civil Procedure apply in the probate court, when such application is appropriate and except when particular statutes provide otherwise."). And, "[i]t is well settled that '[t]he matter of the guardian ad litem's fee is within the discretion of the trial court, subject to correction only for abuse of discretion.' " Historic Blakeley Found., Inc. v. Williams, 40 So.3d 698, 704 (Ala. 2009) (quoting Englund v. First Nat'l Bank of Birmingham, 381 So.2d 8, 12 (Ala. 1980) ).

Wylie is correct, however, that nothing in the submitted record from the circuit court shows that the guardian ad litem requested a fee from the probate court, nor does the record contain any documentation of the time the guardian ad litem spent working on the case that could justify the amount of the fee awarded. The probate court's October 9, 2013, order twice referenced "the Report of the Guardian ad Litem" in conjunction with the hearing as to Wylie's petition for final settlement and the residuary devisees' petition to remove Wylie as personal representative, but nothing in the record or the appellate briefs suggests that the guardian ad litem had filed a fee petition or that the guardian ad litem's report included a fee request with supporting documentation. Moreover, the residuary devisees, who are appellees in this case and some of whom are represented by the guardian ad litem in this appeal, fail to address Wylie's argument as to the guardian ad litem's fee; they direct us to no evidence in the record to support the guardian ad litem's fee award; and they make no assertion that such evidence was presented to the probate court but not included in the record on appeal.

This Court encountered a circumstance similar to the present case in Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740 (Ala. 1988), in which a circuit court awarded $5,000 to the guardian ad litem in an estate action:

"Our review of the record discloses no evidence regarding the services performed by the guardian ad litem other than his presence at the July 21, 1986, hearing on the Bank's petition for final settlement, at which he asked several questions of Kathryn Miree. However, there was no testimony offered at that hearing concerning the services the guardian ad litem had performed, nor does the trial court's order refer to the nature or character of the services performed by the guardian ad litem. We, therefore, vacate the judgment as to the guardian ad litem's fee and instruct that, on remand, an evidentiary hearing be held for the purpose of determining a reasonable guardian ad litem fee and an order prepared setting forth 'with some particularity the findings from the evidence adduced.' Lolley v. Citizens Bank, 494 So.2d [19,] 21 [ (Ala. 1986) ]. See also Clement v. Merchants National Bank of Mobile, [493 So.2d 1350 (Ala. 1986) ]."

530 So.2d at 750-51.

Similarly, in Wehle v. Bradley, 195 So.3d 928 (Ala. 2015), this Court found that the evidence in the record in support of a circuit court's attorney-fee award in an estate action was lacking. The Court observed that "it does not appear that the circuit court had an adequate factual record for making the particular award it made," in part because of "the lack of any evidence of the time consumed outside appearances before the circuit court, and no evidence of the total amount of time consumed both in and out of the courtroom," evidence that "typically is an important consideration" in determining an attorney-fee award. 195 So.3d at 946. The Court also

"emphasize[d] that a 'trial court's order regarding an attorney fee must allow for meaningful review by articulating the decisions made, the reasons supporting those decisions, and the performance of the attorney-fee calculation.' City of Birmingham [v. Horn], 810 So.2d [667,] 682 [ (Ala. 2001) ]. The circuit court's order in this case, conclusory in nature, fails to meet this standard."

195 So.3d at 946. In light of those considerations, the Wehle Court reversed the circuit court's order insofar as it determined the amount of the attorney fee and remanded the case for the circuit court to conduct a hearing concerning the attorney-fee award and to provide an order that could allow for meaningful review of the decision.

In light of Van Schaack and Wehle, we reverse the circuit court's judgment to the extent it affirmed the probate court's fee award to the guardian ad litem, and we remand the case to allow whatever further proceedings may be necessary to establish a proper record and to provide a decision that allows for a meaningful review of any award to the guardian ad litem.

IV. Conclusion

The circuit court did not exceed its discretion in affirming the probate court's decision to remove Wylie as personal representative. The record, however, lacks supporting documentation of the probate court's fee award to the guardian ad litem, and no order from either the probate court or the circuit court provides us with sufficient information to perform a meaningful review of that decision. We therefore reverse that portion of the circuit court's judgment affirming that award and remand the case for further proceedings consistent with this opinion.

APPLICATION OVERRULED; OPINION OF SEPTEMBER 30, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      Section 43-2-530, Ala. Code 1975, provides:
      "Any executor or administrator may be required by citation to file his accounts and vouchers and to make a settlement, notwithstanding any provision in any will or other instrument to the contrary; and, if after service of the citation, he fails to file his accounts and vouchers for a settlement on the day named in the citation, the probate court or other court having jurisdiction of the said estate may compel him to do so by attachment or may proceed to state the account against him from the materials on file or such other information as may be accessible, charging him with such assets as may have come to his hands."

      As discussed further below, these and similar statements by or on behalf of Wylie fail to reflect that Derrell owned only a 90% interest in ASE.

      After she filed her appeal from the probate court to the circuit court, Wylie also filed a petition to remove the administration of Derrell's estate to the circuit court. On October 17, 2013, the circuit court entered an order removing the estate administration to the circuit court. The issue whether the estate administration was properly removed to the circuit court is not before us in this appeal.

      Just as the probate court clearly indicated its understanding that the assets of ASE did not become assets of Derrell's estate upon his death, it likewise recognized that the assets of ASE did not become Wylie's assets upon Derrell's death. In fact, it was Wylie's "attempt to claim and convert the ownership of the assets of [ASE] to her own use and benefit, in contravention of the rights of the beneficiaries under [Derrell's] Will," that was central to the probate court's judgment. As noted above, ASE did not dissolve upon Derrell's death. And indeed, Wylie continued to operate ASE as a going concern for approximately two more years. In so doing, however-and this is central to her removal as personal representative-Wylie treated that operation and its profits as if she alone had a financial interest in it, as opposed to only a 10% interest in it.

      As Black's also suggests, the meaning of "curtilage" may be broader for Fourth Amendment purposes.

      The operative limited-liability-company law in this case is found in § 10A-5-1 et seq., Ala. Code 1975, which governed limited-liability companies for some time before and at the time of Derrell's death. We note that, subsequently, in 2014, the legislature enacted the Alabama Limited Liability Company Law of 2014, effective January 1, 2015. Act No. 2014-144, Ala. Acts 2014. Act No. 2014-144 updated Alabama's limited-liability-company law, repealed existing law in Chapter 5 of Title 10, and replaced Chapter 5 of Title 10 with Chapter 5A.

      Although not directly applicable, see note 6, supra, we note that § 10A-5A-5.02, Ala. Code 1975, of the limited-liability-company law adopted by the legislature in 2014 states that "[a] transferee has the right to receive, in accordance with the transfer, distributions to which the transferor would otherwise be entitled."

      Pursuant to § 10A-5-7.01, Ala. Code 1975, absent a provision otherwise in the governing documents, a limited-liability company continues its existence after the death of one of its members. If a provision terminating ASE upon the death of a member had been adopted in the present case, ASE would have had to be terminated at the time of Derrell's death, and each member, or his or her estate or heirs, would be entitled to a termination distribution. But that is not the case here. (We note that the value of such a termination distribution, i.e., the value of the decedent member's interest in the limited-liability company at the time of his or her death, would typically be more substantial than the value of some of or all the undistributed "profits" earned by the company during one or more recent accounting periods.)
      Wylie's reliance on Fausak's Tire Center, Inc. v. Blanchard, 959 So.2d 1132 (Ala. Civ. App. 2006), is misplaced for a similar reason. In Fausak's Tire Center, "the evidence was undisputed that the members of the LLC had orally agreed that, in the event of a member's death, the LLC would purchase, and the member's estate would sell, the member's interest in the LLC." 959 So.2d at 1144 (emphasis added). The reason that the Court of Civil Appeals had to confirm the value of the decedent member's interest in the LLC at the date of his death was because-unlike in this case-the remaining members of the LLC were going to buy that interest from the decedent's estate. Indeed, as the members' oral agreement indicated, and as the trial court in Fausak's Tire Center concluded without objection: " 'The twenty (20%) percent member ownership interest in [the LLC] the decedent owned at the time of his death constitutes an asset of the decedent's estate.' " 959 So.2d at 1136. Thus, contrary to Wylie's assertion, Fausak's Tire Center does not stand for the proposition that the estate of a decedent member of an LLC in all cases is entitled only to the value of the decedent member's interest in the LLC at the time of his or her death.

      Section 10A-5-5.03, Ala. Code 1975, provides:
      "The profits and losses, income, deductions, and credits, and items of income, deduction, and credits of the limited liability company shall be allocated among the members in the manner provided in the operating agreement. If the operating agreement does not so provide, profits and losses, income, deductions, and credits, and items of income, deductions, and credits shall be allocated on the basis of the pro rata value of the contributions made by each member to the extent they have been made and not returned."

      In this appeal, Wylie makes no meaningful argument challenging the award of the guardian ad litem's fee against her personally.


source: Caselaw Access Project

author: SELLERS, Acting Chief Justice.

license: Public Domain

text:
    James C. WOOD v. STATE of Alabama et al.
    1160814
    Supreme Court of Alabama.
    November 21, 2017
    * Note from the reporter of decisions: Judge Aderholt, retired circuit judge, Winston County, was appointed to preside over this case upon the recusal of the circuit judges in the 15th Judicial Circuit.
    William J. Baxley, Joel E. Dillard, and Donald R. James, Jr., of Baxley, Dillard, McKnight, James & McElroy, Birmingham, for appellant.
    Laura G. Canary and Jared H. Morris, Retirement Systems of Alabama, Montgomery, for appellees; and James Davis, asst. atty. gen., and Mose Stuart, Alabama Department of Finance, "of counsel."
   SELLERS, Acting Chief Justice.

James C. Wood, a retired circuit court judge, appeals from a summary judgment in favor of: the State of Alabama; Luther Strange, in his capacity as Attorney General for the State of Alabama; David G. Bronner, in his capacity as chief executive officer of the Employees' Retirement System of Alabama; the Board of Control of the Employees' Retirement System of Alabama ("the Board of Control"); and Thomas L. White, Jr., in his capacity as Comptroller for the State of Alabama (hereinafter collectively referred to as "the State defendants").

I. Facts and Procedural History

This appeal involves increases in the rates of contributions judges and justices are required to pay into the Judicial Retirement Fund ("the Fund"), pursuant to § 12-18-5, Ala. Code 1975. The Fund was established under the provisions of Act No. 1163, Ala. Acts 1973, codified at § 12-18-1 et seq., Ala. Code 1975, to provide retirement benefits to qualified judges and justices. The Fund is administered by the Board of Control. See § 12-18-2(a), Ala. Code 1975.

Section 12-18-5 provides that membership in the Fund is mandatory for judges and justices elected or appointed to office after September 18, 1973. When the Fund was established, each judge and justice participating in the Fund was required to "contribute to [the Fund] four and one-half percent of his earnable compensation." Id. In 1975, § 12-18-5 was amended to provide that, after February 1, 1977, "the rate of contribution to be paid by the justices and judges shall be six percent of their salary." Ala. Acts 1975, 4th Special Sess., Act No. 66, § 4, p. 2680. On August 11, 1999, Judge Wood was appointed to the 13th Judicial Circuit in Mobile, at which time he began contributing six percent (6%) of his annual salary to the Fund. Judge Wood served until his retirement on January 15, 2013.

On June 15, 2011, the legislature passed Act No. 2011-676, Ala. Acts 2011 ("the Act"), which further amended § 12-18-5 to provide for additional increases in contribution rates to the Fund. Section 12-18-5, as amended, provides:

"For all pay dates beginning on or after October 1, 2011, the contribution to be paid by the justices and judges shall be eight and one-quarter percent (8.25%) of their salary. For all pay dates beginning on or after October 1, 2012, the rate of contribution to be paid by the justices and judges shall be eight and one-half percent (8.5%) of their salary."

Judge Wood was serving his second official term when both increases in contribution rates took effect. Beginning October 1, 2011, Judge Wood's contribution to the Fund increased from six percent (6%) to eight and one-fourth percent (8.25%), and, beginning October 1, 2012, his contribution increased to eight and one-half percent (8.5%). As noted, Judge Wood retired on January 15, 2013.

In June 2012, Judge Wood, individually, and on behalf of a purported class of "all members" of the Fund, sued the State defendants, alleging that the mandatory increases in contributions to the Fund reduced Judge Wood's net pay without affording him any additional retirement benefits. He alleged that the increases in contributions violated the Judicial Compensation Clause of Art. VI, § 148(d), Constitution of Alabama of 1901 ("the Compensation Clause"), which provides that "[t]he compensation of a judge shall not be diminished during his official term."

In his complaint, Judge Wood sought a judgment declaring the Act unconstitutional as violative of the Compensation Clause. He requested relief in the form of an order restoring to him any and all sums by which his compensation allegedly had been diminished, permanently enjoining the State defendants from continuing to enforce the Act against him, and awarding him costs and attorney fees. He also sought similar relief under 42 U.S.C. § 1988. Finally, he sought to have a class of similarly situated judges and justices certified.

The State defendants, pursuant to Rule 56, Ala. R. Civ. P., filed a motion for a summary judgment, arguing that Judge Wood's claims were due to be dismissed on the basis of immunity and mootness. The State defendants also argued that the increases in mandatory contributions did not diminish a judge's or justice's compensation in violation of the Compensation Clause. In response, Judge Wood moved the trial court to enter a summary judgment declaring the Act unconstitutional.

In May 2017, after considering the evidence and the parties' arguments, the trial court entered a summary judgment in favor of the State defendants and against Judge Wood, upholding the Act. In its judgment, the trial court stated:

"Rather than diminishing 'compensation,' the changes in retirement contribution rates implemented by [the Act] simply increased the amount contributed by all education and state employees, including judges, to help pay for their retirement benefits. Indeed, such changes have been made before-in 1975 the legislature increased contribution rates for participants including judges. See Acts 1975, 4th Ex. Sess., No. 66, p. 2680, § 4. Moreover, it is undisputed that judges retain ownership over their own contributions and that they have the right to withdraw their contributions from the retirement system, with interest, should they choose to do so at the end of their active employment. [ Ala. Code 1975, § 12-18-8(b) ]. The Compensation Clause is not violated, nor is the independence of the judiciary threatened, by [the Act's] broadly applicable increase to retirement benefit costs. See United States v. Hatter, [532 U.S. 557, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001) ] (applying the federal Compensation Clause to uphold the constitutionality of a Medicare cost increase that applied to federal employees in general, including judges)."

Judge Wood appealed.

II. Discussion

Judge Wood argues that the trial court erred by entering a summary judgment in favor of the State defendants-upholding the Act. The trial court entered the summary judgment based on the merits of Wood's claims. However, this Court is compelled to address at the outset the State defendants' arguments concerning immunity and mootness because those arguments implicate subject-matter jurisdiction. See Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983) ("[I]t is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu."). Without subject-matter jurisdiction, neither the trial court nor we can reach the merits.

A. Immunity

In Alabama Department of Corrections v. Montgomery County Commission, 11 So.3d 189 (Ala. 2008), this Court stated the following well established law regarding sovereign or State immunity:

"Section 14, Ala. Const. 1901, provides: '[T]he State of Alabama shall never be made a defendant in any court of law or equity.' (Emphasis added.) 'The wall of immunity erected by § 14 is nearly impregnable.' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002). Indeed, as regards the State of Alabama and its agencies, the wall is absolutely impregnable. Ex parte Alabama Dep't of Human Res., 999 So.2d 891, 895 (Ala. 2008) ('Section 14 affords absolute immunity to both the State and State agencies.');
Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102 (Ala. 2008) (same); Atkinson v. State, 986 So.2d 408, 410-11 (Ala. 2007) (same); [In re] Good Hope [Contracting Co. v. Alabama Dep't of Transp., 978 So.2d 17 (Ala. 2007) ] (same); Ex parte Alabama Dep't of Transp., 764 So.2d 1263, 1268 (Ala. 2000) (same); Mitchell v. Davis, 598 So.2d 801, 806 (Ala. 1992) (same). 'Absolute immunity' means just that-the State and its agencies are not subject to suit under any theory.
" 'This immunity may not be waived.' Patterson, 835 So.2d at 142. Sovereign immunity is, therefore, not an affirmative defense, but a 'jurisdictional bar.' Ex parte Alabama Dep't of Transp., 985 So.2d 892, 894 (Ala. 2007). The jurisdictional bar of § 14 simply 'preclud[es] a court from exercising subject-matter jurisdiction' over the State or a State agency. Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala. 2003). Thus, a complaint filed solely against the State or one of its agencies is a nullity and is void ab initio. Ex parte Alabama Dep't of Transp. (In re Russell Petroleum, Inc. v. Alabama Dep't of Transp.), 6 So.3d 1126 (Ala. 2008).... Any action taken by a court without subject-matter jurisdiction-other than dismissing the action-is void. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999)."

11 So.3d at 191-92.

"Because the immunity of the State is absolute, this Court has usually provided that any exceptions to that immunity extend only to suits naming the proper State official in his or her representative capacity. See Latham [v. Department of Corr.], 927 So.2d [815,] 821 [ (Ala. 2005) ] (laying out the exceptions to sovereign immunity). Even when an action names the proper State official in his or her representative capacity, such an action will be barred if it is, in substance, an action against the State for damages. See Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006) ('Additionally, a party may not indirectly sue the State by suing its officers or agents " 'when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.' " ' (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002), quoting in turn State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) ) (emphasis added in Patterson ) )."

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 22 (Ala. 2007).

The immunity afforded State officers sued in their official capacities, however, is not unlimited:

"This Court has recognized six categories of actions that survive the § 14 bar: (1) actions to compel State officials to perform their legal duties, Aland v. Graham, 287 Ala. 226, 229, 250 So.2d 677, 679 (1971) ; (2) actions to enjoin State officials from enforcing an unconstitutional law, id.; (3) actions to compel State officials to perform ministerial acts, 287 Ala. at 229-30, 250 So.2d at 678-79 ; (4) actions under the Declaratory Judgment Act, § 6-6-220 et seq., Ala. Code 1975, seeking construction of a statute and how it applies in a given situation, 287 Ala. at 230, 250 So.2d at 679 ; (5) valid inverse-condemnation actions brought against State officials in their representative capacities, Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala. 2006) ; and (6) actions to enjoin State officials from acting fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Ex parte Moulton, 116 So.3d 1119, 1141 (Ala. 2013). This Court has also noted that ' "an action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate." ' Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004) (quoting Shoals Cmty. College v. Colagross, 674 So.2d 1311, 1314 (Ala. Civ. App. 1995) )."

Ex parte Retirement Sys. of Alabama, 182 So.3d 527, 533-34 (Ala. 2015) (footnote omitted).

Based on the above principles, the State of Alabama is absolutely immune from Judge Wood's suit under § 14. Judge Wood has also sued the Board of Control on the basis that it manages the Fund. The State defendants argue that the Board of Control is also immune under § 14 because, they say, the Board is an instrumentality of the State and is therefore immune from suit to the same extent as the State. Judge Wood presents no argument to the contrary. See Bronner v. State, 171 So.3d 614, 619 (Ala. 2014) ("See Art. I, § 14, Ala. Const. 1901; Ala. Code 1975, §§ 16-25-2(b) and 36-27-2(b) (recognizing that the boards of control of the [Teachers' Retirement System] and the [Employees' Retirement System] are instrumentalities of the State, that the [Teachers' Retirement System] and the [Employees' Retirement System] are funded by the State, and that their officers and employees are immune from suit in their official capacities to the same extent as the State, its agencies, and its officers and employees)."). "[T]he immunity afforded the State by § 14 applies to instrumentalities of the State and State officers sued in their official capacities when such an action is effectively an action against the State." Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 332 (Ala. 2011). "[A]ny exceptions to [this] immunity extend only to suits naming the proper State official in his or her representative capacity." Ex parte Department of Transp., 978 So.2d at 22. In this case, Judge Wood has sued only the Board of Control, not any of its members in their official capacities. Accordingly, the Board of Control is also entitled to § 14 immunity.

Judge Wood has also sued Bronner in his capacity as chief executive officer of the Employees' Retirement System and White in his capacity as State comptroller. The State defendants argue that Judge Wood's claim for money damages against Bronner and White in their official capacities is also barred by § 14 immunity because, they say, any recovery on that claim would affect the financial status of the State treasury. As indicated, Judge Wood seeks restitution from Bronner and White in the form of "any and all sums by which [his and the purported class members'] compensation has been ... diminished during their official terms through enforcement of [the allegedly unconstitutional Act]." The State defendants rely upon Ex parte Retirement Systems of Alabama, supra, a case decided after the commencement of this action, to support their argument that this Court lacks subject-matter jurisdiction to award money damages in the form of a refund, apparently even when those damages are the result of the implementation of an allegedly unconstitutional act resulting in the alleged diminution of a judge or justice's compensation during the judge or justice's official term in office. In Retirement Systems, the plaintiffs, public educators and their spouses, sued various State officials seeking to recover restitution for funds paid for coverage pursuant to an allegedly invalid insurance policy that had been implemented by the officials. The plaintiffs alleged that the policy violated various provisions of the Alabama Constitution of 1901, the United States Constitution, and 42 U.S.C. § 1983. As in this case, the State officials moved the circuit court to dismiss the complaint, arguing, among other things, that the claims against them were barred by § 14 immunity.

The Court in Retirement Systems noted that " 'an action is one against the [S]tate when a result favorable for the plaintiff would ... result in the plaintiff's recovery of money from the [S]tate.' " 182 So.3d at 536 (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004) ). The plaintiffs, citing Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala. 2008) (" Harbert"), argued that their request for restitution in the form of incidental monetary relief was not barred by the doctrine of sovereign immunity because, they said, a court may order State officers to pay the predetermined amount as a ministerial duty. The plaintiffs argued that, because the funds did not belong to the State, the State treasury would suffer no more than it would have suffered had the State officials originally performed their ministerial duties and paid the debts. This Court concluded that the plaintiffs' reliance on Harbert was misplaced:

"In Harbert, this Court addressed, among other things, whether Harbert International, Inc. ('Harbert'), could maintain an action against the Alabama Department of Transportation ('ALDOT'), seeking, among other things, (1) the return of liquidated damages withheld under an allegedly unlawful provision of Harbert's contract with ALDOT, (2) $291,750 of a retainage ALDOT owed under the contract, and (3) compensation for extra work Harbert had performed under the contract. This Court noted that 'mandamus relief is available in certain situations to compel a State officer to perform the ministerial act of tendering payment of liquidated or certain sums the State is legally obligated to pay under a contract.' Harbert, 990 So.2d at 842. We went on to affirm the circuit court's judgment insofar as it required ALDOT to pay Harbert the liquidated damages and retainage owed under the contract but reversed the judgment insofar as it directed the payment to Harbert of unliquidated damages for its breach-of-contract claim.
"Although the public-education plaintiffs argue that the restitution they are requesting is not 'compensatory or unliquidated damages' and is 'an amount known to [the PEEHIP defendants],' public-education plaintiffs' brief, at 14, the restitution requested in this case is more in the nature of a refund of amounts overpaid than a request for liquidated or certain damages owed under contract. This Court has determined that such claims are barred by § 14."

182 So.3d at 536. Accordingly, in Retirement Systems, this Court held that the plaintiffs' claims for restitution in the form of a refund of amounts overpaid, as well as for costs and attorney fees, were barred by the doctrine of sovereign immunity insofar as the claims would impact the State treasury. 182 So.3d at 137. The Court further held that the plaintiffs' claims for monetary relief based on federal law were also barred by the Eleventh Amendment to the United States Constitution. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("The Eleventh Amendment bars a suit against state officials when 'the state is the real, substantial party in interest.' " (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945) ) ).

We note that Judge Wood, for the first time in his reply brief, generally asserts that the first, second, third, fourth, and sixth categories of exceptions as set forth in many of our cases, including Retirement Systems, prevent the State defendants from claiming immunity under § 14. Judge Wood offers this Court no response to the State defendants' reliance on Retirement Systems, including the State defendants' contention that, under principles discussed in Retirement Systems, Judge Wood's claim for monetary damages implicates a refund and therefore is barred by § 14 immunity. Nor does Judge Wood request this Court to reconsider, distinguish, or overrule Retirement Systems. Judge Wood also has not offered any response to the State defendants' assertion of immunity for claims arising under 42 U.S.C. § 1988.

In Blevins v. Hillwood Office Center Owners' Ass'n, 51 So.3d 317, 322 (Ala. 2010) this Court observed:

"This Court has often said that it is ' " 'duty bound to notice ex mero motu the absence of subject-matter jurisdiction.' " ' Riley v. Hughes, 17 So.3d 643, 648 (Ala. 2009) (emphasis added) (quoting Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003), quoting in turn Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala. 1994) ). However, just because the Court is duty bound to notice the absence of subject-matter jurisdiction, it does not follow that it is so bound to construct theories and search the record for facts to support the existence of jurisdiction for plaintiffs who choose to stand mute in the face of a serious jurisdictional challenge."

Based on the facts and arguments presented in this appeal, this Court concludes that Judge Wood has failed to sustain his burden of establishing subject-matter jurisdiction to award money damages upon alleged violations of the Compensation Clause of the Alabama Constitution or 42 U.S.C. § 1988 stemming from legislatively mandated increases in a judge's or justice's contributions to the Fund. Accordingly, State defendants Bronner and White are entitled to dismissal of all claims against them in their official capacities for money damages.

B. Mootness

Judge Wood also sought prospective injunctive relief in the form of an order permanently restraining the State defendants from continuing to enforce the allegedly unconstitutional Act against him. We agree with the State defendants, however, that Judge Wood's claim for prospective injunctive relief has become moot by virtue of his retirement from judicial office.

"When an action becomes moot during its pendency, the court lacks power to further adjudicate the matter.
" ' "The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties." Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) ). "A case becomes moot if at any stage there ceases to be an actual controversy between the parties." Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) ).'
" Chapman v. Gooden, 974 So.2d 972, 983 (Ala. 2007) (first emphasis added). See also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ('[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.')."

South Alabama Gas Dist. v. Knight, 138 So.3d 971, 974-76 (Ala. 2013).

Judge Wood was serving his second official term as a circuit judge when the Act was passed and when both increases in contribution rates took effect. Judge Wood retired on January 15, 2013, ending his official term in office and precluding the possibility that the Act would impact his compensation in the future. As indicated, the Compensation Clause prohibits the diminishment of a judge's compensation only "during [the judge's] official term." When Judge Wood's official term ended upon his retirement, he ceased making contributions to the Fund; after that point, there was no longer any actual controversy between the parties necessitating an order prohibiting future application of the (allegedly unconstitutional) Act.

III. Conclusion

An order entered without subject-matter jurisdiction is void. McDaniel v. Ezell, 177 So.3d 454 (Ala. 2015) Because Judge Wood's claim for money damages is not shown to be within this Court's subject-matter jurisdiction and his claim for prospective injunctive relief is moot, also defeating subject-matter jurisdiction, we cannot address the constitutionality of the Act. Accordingly, this Court holds that the trial court's judgment upholding the Act against Judge Wood's constitutional challenge is void. We dismiss the appeal, vacate the summary judgment in favor of the State defendants, and dismiss the action for failure to establish subject-matter jurisdiction as to the claim for monetary damages and on the basis of mootness as to the claim for prospective injunctive relief.

APPEAL DISMISSED; JUDGMENT VACATED; CASE DISMISSED.

J. Gorman Houston, Jr., Champ Lyons, Jr., Jean Williams Brown, Terry L. Butts, and R. Bernard Harwood, Jr., Special Justices, concur.

Ralph D. Cook, Special Justice, concurs in the result.

COOK, Special Justice (concurring in the result).

I disagree with the main opinion's conclusions regarding the applicability of the immunity provisions of Art. I, § 14, Const. of Alabama 1901, to all defendants and claims in this case. However, under the facts of this case, I believe this nondiscriminatory increase in retirement contributions, which also constituted a reduction in take-home pay, was an indirect decrease in compensation that does not violate the Compensation Clause contained in the Alabama Constitution. Therefore, I concur in the result.

      Canon 3.C of the Canons of Judicial Ethics requires a Justice to disqualify himself or herself in any proceeding in which the Justice's impartiality might be reasonably questioned. Having determined that the issue in this case affects all justices who were actively serving in that capacity as of October 1, 2011, and recognizing that eight of the Justices on this Court were serving as active justices as of October 1, 2011, those eight Justices ex mero motu recused themselves from this case on August 30, 2017, leaving William B. Sellers as the sole remaining Associate Justice. On August 31, 2017, pursuant to § 12-2-5, Ala. Code 1975, Associate Justice Sellers was appointed to serve as Acting Chief Justice in this case and, pursuant to § 149, Ala. Const. 1901 (Off. Recomp.), originally § 6.10 of Amendment No. 328, Ala. Const. 1901, appointed the following former Associate Justices to serve with him as the special Supreme Court in this case: J. Gorman Houston, Jr., Champ Lyons, Jr., Ralph D. Cook, Jean Williams Brown, Terry L. Butts, and R. Bernard Harwood, Jr.

      During the pendency of this case, Strange resigned from the office of Attorney General to accept an appointment to the United States Senate. Pursuant to Rule 25(d), Ala. R. Civ. P., his successor was automatically substituted as a party.

      In the style of his complaint, Judge Wood identified each State official he has sued as a defendant in both his official capacity and "individually." On appeal, he has not asserted that they are liable to him in their individual capacities.

      The Act, in addition to increasing contribution rates for justices and judges, also increased contribution rates for participants in the Teachers' Retirement System of Alabama and the Employees' Retirement System of Alabama.

      The parties agree that, for purposes of determining whether a judge's compensation has been diminished during his or her official term in violation of the Judicial Compensation Clause of Art. VI, § 148(d), Ala. Const. 1901, "official term" means the term of office a judge serves after his or her appointment or election until he or she is re-elected to a new term (or resigns or retires prior thereto). We accept that definition for the purpose of this appeal based upon the aforementioned agreement of the parties. In Judge Wood's case, the official term at issue spanned the period from January 2007 until January 2013.

      The State defendants also asserted that Judge Wood lacked "standing" to bring claims against the Attorney General. Section 6-6-227, Ala. Code 1975, requires only service of a copy of the complaint on the Attorney General in an action challenging the constitutionality of a state statute. It does not appear that Judge Wood sought any relief from the Attorney General; therefore, we pretermit consideration of the issue of standing.

      The trial court did not rule on Judge Wood's request to certify a class.

      We also note that the State defendants argue that any claim for prospective injunctive relief Judge Wood asserted on behalf of the purported class members is moot for a different reason. Specifically, the State defendants assert, and Judge Wood does not contest, that the judges and justices that would be members of the purported class have started new terms since the increases in contribution rates took effect. We agree. Those judges and justices will not have their contribution rates increased, pursuant to the Act, during their current official terms.


author: SELLERS, Justice.

text:
    EX PARTE Alabama Director of Finance Clinton CARTER and Alabama Office of Indigent Defense Services Director Chris E. Roberts
    (In re: Ronald W. Smith and Gerald R. Paulk, individually and on behalf of all other Alabama lawyers similarly situated v. Clinton Carter, in his official capacity as Director of Finance of the State of Alabama and Chris E. Roberts, in his official capacity as Director of the Alabama Office of Indigent Defense Services)
    1160894
    Supreme Court of Alabama.
    November 22, 2017
    Steve Marshall, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Winfield J. Sinclair and Laura E. Howell, asst. attys. gen.; and Mose Stuart, Alabama Department of Finance Legal Division, Montgomery, for petitioners.
    George C. Douglas, Jr., Hoover, for respondents.
   SELLERS, Justice.

Clinton Carter, in his official capacity as Director of Finance of the State of Alabama, and Chris E. Roberts, in his official capacity as director of the Alabama Office of Indigent Defense Services (hereinafter referred to collectively as "the State defendants"), petition this Court for a writ of mandamus directing the Jackson Circuit Court to transfer the underlying action to Montgomery County, where, they argue, venue is proper. For the reasons discussed below, we issue the writ.

Facts

In January 2015, the Jackson Circuit Court, pursuant to § 15-12-21, Ala. Code 1975, appointed Alabama attorneys Ronald W. Smith and Gerald R. Paulk to represent Barry Van Whitton, an indigent, in a noncapital-murder case. While the criminal case against Whitton was pending, Smith and Paulk filed a motion seeking a declaration that § 15-12-21 was unconstitutional; an order allowing them to exceed the statutory fee cap set in § 15-12-21 ; and, in the alternative, an order reimbursing them for their overhead expenses incurred in the defense of the case. The trial court conducted a hearing on the motion; two assistant attorneys general were present at the hearing.

On September 9, 2015, the trial court entered an order, which, among other things, declared § 15-12-21 unconstitutional and "no longer of any force or effect" ("the Whitton order). The attorney general did not appeal the Whitton order or otherwise challenge it.

Upon completion of the criminal trial, the trial court approved Smith's and Paulk's attorney-fee declarations, i.e., $15,995.01 and $28,596.21, respectively. Smith and Paulk submitted to the Office of Indigent Defense Services ("the OIDS") the approved attorney-fee declarations, along with a copy of the Whitton order. The OIDS paid Smith and Paulk only those amounts authorized by § 15-12-21, citing the statute as the basis for its limited payment. Smith and Paulk filed a claim with the State Board of Adjustment, which was unsuccessful.

On March 13, 2017, Smith and Paulk, individually, and on behalf of all similarly situated Alabama lawyers, filed a complaint in the Jackson Circuit Court against the State defendants in their official capacities. Count one of the complaint sought mandamus and/or injunctive relief directing the State defendants to perform their legal and ministerial duties pursuant to the Whitton order. Counts two and three of the complaint sought retroactive (dating back to June 14, 2011) and prospective relief for a state-wide class of similarly situated indigent-defense lawyers.

On April 19, 2017, the State defendants moved the Jackson Circuit Court for a change of venue to Montgomery County, citing Tri-State Corp. v. State ex rel. Gallion, 272 Ala. 41, 46, 128 So.2d 505, 509 (1961) (stating that "it is well established ... that suits involving public officials are properly maintained in the county of their official residence"), and Ex parte Neely, 653 So.2d 945, 946 (Ala. 1995) (holding that "where an officer of the state is a defendant ..., venue is proper only in [the county of the defendant's official residence], 'absent specific statutory authority to the contrary or waiver of objection to venue' " (quoting Ex parte City of Birmingham, 507 So.2d 471, 474 (Ala. 1987) )). Smith and Paulk argued in opposition to the motion for a change of venue that the attorney general, by failing to challenge the Whitton order declaring § 15-12-21 unconstitutional, waived objections to venue and that "waiver" is binding on the State defendants. Smith and Paulk also argued that the Jackson Circuit Court had continuing and ancillary jurisdiction to enforce the Whitton order.

On June 27, 2017, the trial court entered an order denying the State defendants' motion for a change of venue. The State defendants filed this petition for a writ of mandamus asking this Court to direct the trial court to vacate its order denying their motion for a change of venue and to transfer the case to Montgomery County. This Court ordered answer and briefs.

Standard of Review

"The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995)."

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998).

Analysis

In Ex parte Neely, this Court held that, "absent statutory authority to the contrary, venue for ... actions against a state agency or a state officer should be in the county of the official residence of the agency or officer." 653 So.2d at 947. In Neely, this Court expressed the public-policy considerations behind this rule as being "directed toward preventing inconvenience, hindrance, and delay to the successful conduct of the functions of state government." 653 So.2d at 947. In denying the motion to transfer the case, the trial court concluded that the attorney general, by failing to challenge the Whitton order, had waived any objections to venue in Jackson County, that the attorney general's actions were binding on the State defendants, and that the trial court had continuing or ancillary jurisdiction to enforce the Whitton order:

"1. This action seeks enforcement of the [Whitton order] holding [the fee caps of § 15-12-21 ] for indigent defense unconstitutional. This Court took up that issue as a pre-trial matter in [the Whitton criminal proceeding], and the Attorney General did not object to jurisdiction, service or venue before or after the hearing and trial. There was no motion to vacate, no mandamus petition, and no appeal of [the Whitton order].
"2. As Alabama's chief law enforcement officer, the Attorney General was entitled [to] waive the objections now raised by [the State defendants] here, and his election to do so then is binding now on subordinate officials whose actions are mandated by the result.
"3. [The State defendants] here are officials who have only a ministerial duty to pay the fees ordered [by the Whitton order]. They may not re-litigate the fee cap issue or second-guess that decision, and the Attorney General may not now re-litigate it through [the State defendants] in this action....
"Accordingly, [the State defendants] here have no substantive issues to contest, and this Court has continuing or ancillary jurisdiction to enforce [the Whitton order] by mandamus or injunctive orders directed to them as ministerial officials."

(Emphasis added.)

The State defendants argue that the trial court exceeded its discretion in failing to transfer the instant civil action to Montgomery County because, they say, the attorney general's failure to challenge the Whitton order did not operate to "waive" their objections to venue in this case. Specifically, the State defendants assert that, although the attorney general may possess broad power to direct the State's interests in litigation, he cannot "waive" objections to venue for individuals who were not parties to the case in which the attorney general waived venue and who were not represented by him or his office at that time. The State defendants further argue that the trial court's refusal to transfer the action to Montgomery County was based on its assumption that the Whitton order was conclusively valid and thus binding on the State defendants. According to the State defendants, issues concerning the validity of the Whitton order and its applicability are disputed and have not yet been decided. For these reasons, the State defendants maintain that Smith and Paulk must litigate the merits of their claims against the State defendants in the proper venue-Montgomery County; Smith and Paulk, the State defendants maintain, cannot obtain their desired result merely by pursuing enforcement of the Whitton order. We agree.

The Whitton order declaring § 15-12-21 unconstitutional was entered by the trial court in a criminal proceeding. Venue in the criminal proceeding was undisputedly proper in Jackson County. Smith and Paulk sought to enforce their alleged rights under the Whitton order by submitting their attorney-fee declarations to the OIDS and, when the OIDS did not pay the entire amounts submitted, by filing a claim with the State Board of Adjustment. Having no success with the Board of Adjustment, Smith and Paulk commenced the underlying civil action in an effort to force the State defendants to perform what Smith and Paulk assert are their official duties. The civil action is distinct from the criminal proceeding, and there has been no waiver of venue in the civil action.

As the State defendants correctly note, the issue presented in this petition does not concern the validity of the Whitton order or whether that order is enforceable. Rather, the only issue presented for our review is whether venue for the civil action is proper in Montgomery County. The civil action has been brought against the State defendants in their official capacities, and there has been no waiver of objections to venue in the civil action. Thus, under this Court's holding in Ex parte Neely, we conclude that the State defendants have demonstrated a clear legal right to the relief sought.

Conclusion

The Jackson Circuit Court is directed to vacate its June 27, 2017, order denying the State defendants' motion for a change of venue and to transfer the case to the Montgomery Circuit Court.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Wise, and Bryan, JJ., concur.

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

MURDOCK, Justice (concurring in the result).

The September 9, 2015, judgment of the Jackson Circuit Court in the criminal case involving Barry Van Whitton, i.e., the Whitton order, awarding attorney fees to Ronald W. Smith and Gerald R. Paulk ("the attorneys") in excess of the maximum amount stated in § 15-12-21(d)(2), Ala. Code 1975, not having been appealed by the attorney general on behalf of the State of Alabama, constituted a final disposition of the issue whether the attorneys were entitled to the fee award stated therein. Under this circumstance, I question whether it was necessary for the attorneys to have filed some new and separate action to enforce a judgment already obtained. Rather than joining in the Jackson Circuit Court proceeding any additional State officials whose presence might be necessary for the enforcement of that court's judgment and seeking enforcement of that judgment by the court that entered it, however, the attorneys chose to initiate a collateral lawsuit for that purpose and for the purpose of seeking additional relief on behalf of a class of similarly situated indigent-defense lawyers. If such a lawsuit is to be filed, then I suppose the proper venue for the new lawsuit, naming as defendants Clinton Carter, in his official capacity as Director of Finance of the State of Alabama, and Chris E. Roberts, in his official capacity as director of the Alabama Office of Indigent Defense Services, is Montgomery County pursuant to Ex parte Neely, 653 So.2d 945, 946 (Ala. 1995). In any event, the finality of the judgment awarding fees to the attorneys in the Whitton criminal case would appear to be res judicata as to the specific attorney-fee claims of Smith and Paulk.

SHAW, Justice (concurring in the result).

Generally, the proper venue in a criminal case "is in the county in which the offense was committed." § 15-2-2, Ala. Code 1975. The proper venue in the criminal case involving Barry Van Whitton was Jackson County. Ex parte Neely, 653 So.2d 945, 946 (Ala. 1995), states: "[W]here an officer of the state is a defendant ... or where an agency of the state is a defendant, venue is proper only in Montgomery County." No officer of the State or State agency was a defendant in the Whitton criminal case. The rule in Ex parte Neely does not apply.

"A waiver consists of a 'voluntary and intentional surrender or relinquishment of a known right ....' " Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 93 (Ala. 2005) (quoting Dominex, Inc. v. Key, 456 So.2d 1047, 1058 (Ala. 1984) ). Because the rule in Ex parte Neely did not apply in the Whitton criminal case, it did not provide a right that was capable of being waived.

      Section 15-12-21 details Alabama's system for compensating attorneys appointed in indigent cases. At the time pertinent to this petition, that section provided, in pertinent part:
      "(d) ... [A]ppointed counsel shall be entitled to receive for their services a fee to be approved by the trial court. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case. The amount of the fee shall be based on the number of hours spent by the attorney in working on the case and shall be computed at the rate of seventy dollars ($70) per hour for time reasonably expended on the case. The total fees paid to any one attorney in any one case, from the time of appointment through the trial of the case, including motions for new trial, shall not exceed the following:
      "(1) In cases where the original charge is a capital offense or a charge which carries a possible sentence of life without parole, there shall be no limit on the total fee.
      "(2) Except for cases covered by subdivision (1), in cases where the original charge is a Class A felony, the total fee shall not exceed four thousand dollars ($4,000).
      "....
      "Counsel shall also be entitled to be reimbursed for any nonoverhead expenses reasonably incurred in the representation of his or her client, with any expense in excess of three hundred dollars ($300) subject to advance approval by the trial court as necessary for the indigent defense services and as a reasonable cost or expense. Reimbursable expenses shall not include overhead expenses. Fees and expenses of all experts, investigators, and others rendering indigent defense services to be used by counsel for an indigent defendant shall be approved in advance by the trial court as necessary for the indigent defense services and as a reasonable cost or expense. Retrials of any case shall be considered a new case for billing purposes. Upon review, the director may authorize interim payment of the attorney fees or expenses, or both."
      Section 15-12-21 was amended effective January 30, 2016. See Act No. 215-185, Ala. Acts 2015. The quoted provisions were not changed by the amendment.

      We note again that Smith and Paulk seek not only to enforce the Whitton order via this civil action, but also additional retroactive and prospective relief on behalf of a class of allegedly similarly situated lawyers.

      In other words, I disagree with the main opinion when it states that "[w]e agree" with the State's assertion "that Smith and Paulk must litigate the merits of their claims against the State defendants in the proper venue-Montgomery County; Smith and Paulk ... cannot obtain their desired result merely by pursuing enforcement of the Whitton order." 261 So.3d at 335. The merits of the attorneys' individual claims against the State have already been litigated in the proper venue-Jackson County. Indeed, no court other than the Jackson Circuit Court had authority to litigate the merits of the attorneys' claims.