author: SELLERS, Justice.

text:
    Stuart McQuaid CAMPBELL, Jr., and Tomlin Construction, LLC v. Eduard David Evans KENNEDY
    1160444
    Supreme Court of Alabama.
    October 26, 2018
    Steve R. Burford and Lindsay P. Hembree of Simpson McMahan, Glick & Burford, PLLC, Birmingham; and William H. Brooks and Ivan B. Cooper of Lightfoot, Franklin & White, LLC, Birmingham, for appellants.
    L. Hunter Compton, Jr., and Taylor T. Perry, Jr., of Manley, Traeger, Perry, Stapp & Compton, Demopolis, for appellee.
   SELLERS, Justice.

Eduard David Evans Kennedy sued Tomlin Construction, LLC, and its employee, Stuart McQuaid Campbell, Jr., seeking damages for personal injuries Kennedy suffered when the Plymouth Grand Voyager passenger van he was driving collided with a 2007 Caterpillar motor grader belonging to Tomlin Construction and being operated by Campbell; the accident occurred in a construction zone. The jury returned a verdict in favor of Kennedy, awarding him compensatory damages in the amount of $3,000,000. Campbell and Tomlin Construction filed a postjudgment motion for a judgment as a matter of law ("JML"), a new trial, or a remittitur of damages; the trial court denied that motion. Campbell and Tomlin Construction appeal. We affirm.

I. Facts and Procedural History

On September 1, 2009, the Alabama Department of Transportation ("ALDOT") contracted with Tomlin Construction, a road-construction and excavation company, for work on a "0.945 mile bridge replacement and approaches" on U.S. Highway 43 in Greene County. Pursuant to the terms of the contract, ALDOT prepared the project specifications, including the traffic-control plans, and had supervisors on site to ensure compliance with those specifications and plans.

On June 17, 2010, at approximately 2:30 p.m., Kennedy, accompanied by four passengers, was traveling in his van on Highway 43 in the northbound lane where, in connection with the above-described construction project, Campbell was operating a Caterpillar motor grader in the same lane of travel. As Kennedy's van attempted to proceed around the motor grader by crossing the double-yellow line into the southbound lane, the motor grader undertook a lefthand turn, causing the front left wheel housing and steer axle (hereinafter "the front axle") of the motor grader and the van to collide. Immediately following the accident, Kennedy was transported to Druid City Hospital in Tuscaloosa where he was treated for fractures to both sides of his jaw, a broken femur, and a pulmonary contusion.

In August 2010, Kennedy sued Campbell and Tomlin Construction, alleging that Campbell, while working in the line and scope of his employment with Tomlin Construction, had been negligent in operating the motor grader and that Campbell's negligence was the proximate cause of the accident. Campbell and Tomlin Construction moved for a summary judgment, asserting, among other things, that Kennedy had been contributorily negligent as a matter of law in causing the accident. In opposition, Kennedy moved for a summary judgment or, alternatively, for sanctions, arguing that Larry Tomlin, the owner of Tomlin Construction, had engaged in spoliation of evidence. Specifically, Kennedy asserted that, one week after the accident, counsel for Kennedy sent Tomlin a letter indicating that the motor grader was vital to their investigation of the accident, that they expected to be able to inspect the motor grader, and that they were requesting that the motor grader be retained in its immediate post-accident state until they could perform their inspection. Tomlin sent Kennedy's counsel a reply letter informing counsel that the motor grader remained at Tomlin Construction's worksite but was scheduled for repairs beginning July 15, 2010. Tomlin and his insurance carrier agreed to halt all repairs to the motor grader until Kennedy's counsel could inspect the motor grader on July 19, 2010. However, when Kennedy's counsel arrived at the worksite for the inspection, the motor grader was present, but the front axle had already been removed. The trial court denied Kennedy's motion for sanctions and/or a summary judgment based on the alleged spoliation of evidence; the trial court ruled, however, that Kennedy could present his spoliation-of-evidence claim to the jury. The case proceeded to trial. At the close of Kennedy's evidence and at the close of all the evidence, Campbell and Tomlin Construction moved for a JML, arguing that there was no evidence indicating that they had breached any duty of care owed Kennedy based on Tomlin Construction's compliance with all ALDOT specifications with regard to the construction project. They also argued that Kennedy had been contributorily negligent as a matter of law in causing the accident.

As indicated, the jury returned a verdict in favor of Kennedy in the amount of $3,000,000; the trial court entered a judgment on the verdict. Following the denial of their postjudgment motion, Campbell and Tomlin Construction appealed.

II. Discussion

A. JML--Negligence

Campbell and Tomlin Construction contend that the trial court erred in denying their motion for a JML because, they argue, Kennedy's alleged violation of Alabama's Rules of the Road constituted negligence per se and, thus, Kennedy was contributorily negligent as a matter of law. It is well settled that,

"[w]hen reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented substantial evidence to allow the factual issue to be submitted to the jury for resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992). See, also, § 12-21-12, Ala. Code 1975, and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). A motion for JML 'is properly denied where there exists any conflict in the evidence for consideration by the jury.' Cloverleaf Plaza, Inc. v. Cooper & Co., 565 So.2d 1147, 1149 (Ala. 1990). In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences from that evidence as the jury would have been free to draw."

Daniels v. East Alabama Paving, Inc., 740 So.2d 1033, 1037 (Ala. 1999).

In Norfolk Southern Ry. v. Johnson, 75 So.3d 624, 639 (Ala. 2011), this Court stated, concerning contributory negligence:

" 'Contributory negligence is an affirmative and complete defense to a claim based on negligence. In order to establish contributory negligence, the defendant bears the burden of proving that the plaintiff 1) had knowledge of the dangerous condition; 2) had an appreciation of the danger under the surrounding circumstances; and 3) failed to exercise reasonable care, by placing himself in the way of danger.'
" Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala. 1998). The issue of contributory negligence is generally one for a jury to resolve. Id. See also Savage Indus., Inc. v. Duke, 598 So.2d 856, 859 (Ala. 1992) ('The issue of contributory negligence cannot be determined as a matter of law where different inferences and conclusions may reasonably be drawn from the evidence.')."

Campbell and Tomlin Construction specifically argue that Kennedy, in crossing the double-yellow line in an attempt to pass the motor grader, violated § 32-5A-86, Ala. Code 1975, which provides, in pertinent part:

"(b) Where signs or markings are in place to define a no-passing zone ... no driver shall at any time drive on the left side of the roadway within such no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.
"(c) This section does not apply under the conditions described in Section 32-5A-80(a)(2), nor to the driver of a vehicle turning left into or from an alley, private road, or driveway."

(Emphasis added.) Section 32-5A-80(a)(2), Ala. Code 1975, provides that "a vehicle shall be driven upon the right half of the roadway," except

"[w]hen an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person doing so shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard."

(Emphasis added.) Campbell and Tomlin Construction also contend that Kennedy violated § 32-5A-116, Ala. Code 1975, by failing to yield the right-of-way to the motor grader, which, they say, was actually engaged in highway construction at the time of the accident. Section 32-5A-116 provides:

"(a) The driver of a vehicle shall yield the right-of-way to any authorized vehicle or pedestrian actually engaged in work upon a highway within any highway construction or maintenance area indicated by official traffic-control devices.
"(b) The driver of a vehicle shall yield the right-of-way to any authorized vehicle obviously and actually engaged in work upon a highway whenever such vehicle displays such flashing lights as may be required or permitted by law or by regulation of the department."

(Emphasis added.)

Kennedy, on the other hand, asserts that he was justified in crossing the double-yellow line to pass the motor grader because, he says, the motor grader was obstructing his lane of travel. Kennedy further asserts that, at the time of the accident, the motor grader was not actually engaged in work on the highway and that the motor grader did not display any brake lights, hazard lights, or turning signals to indicate that it was engaged in work. These issues, however, were disputed at trial. Specifically, Kennedy testified that, as he entered the construction zone, he did not notice any signs or construction barrels, but he did see construction equipment on the side of the highway, and that he decreased the speed of his van to around 35 miles per hour. Kennedy further indicated that the motor grader appeared to be parked in the right lane of travel without displaying any lights or turn signals and that, as he approached the motor grader, he decreased the speed of his van to 25 miles per hour, verified that there was no oncoming traffic, crossed the double-yellow line into the left lane, and accelerated to pass the motor grader. Kennedy stated that, as he attempted to pass the motor grader, the motor grader made a sharp 90-degree turn and blocked the entire road. The four passengers riding in the van at the time of the accident also testified and corroborated Kennedy's claims; however, each noted that the motor grader was originally moving forward before it came to a complete stop in the right lane.

Campbell, on the other hand, testified that, before the accident, he placed the motor grader into "travel mode" to move it from the south end of the construction zone to the north end where he planned to exit the highway to the left in order to cut a detour ditch; that he activated all lights on the motor grader, including its headlights and flashers; and that, before exiting the highway, he engaged his left turn signal and checked his mirrors for traffic. Campbell denied stopping the motor grader on the highway at any time but noted that he had decreased the speed of the motor grader to an estimated 18 miles per hour before attempting to exit the highway by way of the left turn. Campbell further testified that he did not use flagmen while driving the motor grader from the south end of the construction zone to the north end because, he said, it was approximately a one-mile journey and traffic was not being stopped in either direction. The evidence was undisputed that, when construction equipment shuts down a lane of travel, flagmen are generally required to control traffic flow. Campbell finally testified that, as he attempted to make a left turn to exit the highway, he saw a "flash," but by the time he realized that it was a vehicle, the vehicle had already struck the motor grader. Campbell claimed that the impact of the van pushed the 25-ton motor grader sideways causing a skid mark on the highway that, he says, he pointed out to Trooper Cleophus Robinson, Jr., who investigated the accident and completed the accident report. And, although Campbell never saw Kennedy's van before the impact, he was adamant that the van was traveling in excess of 60 miles per hour when it collided with the motor grader.

Kerry Rogers, another Tomlin Construction employee, testified that he witnessed the accident from inside his vehicle, which was parked at the worksite. Rogers testified that, at the time Kennedy attempted to pass the motor grader, Kennedy's van was traveling approximately 65 miles per hour. Rogers claimed that he was not listed as an eyewitness on the accident report because he was never asked and he was preoccupied with helping the injured passengers in the van.

Trooper Robinson, who investigated the accident, testified that he did not identify any eyewitness in his accident report and that he did not speak with any of the passengers of the van at the scene because they had been transported to the hospital before he arrived. Trooper Robinson's investigation of the scene confirmed that Kennedy's van was attempting to pass the motor grader using the southbound left lane while traveling northbound. He noted that, at the time of impact, the motor grader's front left tire was close to the shoulder of the road on the southbound side and the motor grader had cleared the northbound lane leaving no obstruction in that lane. Trooper Robinson testified that he did not find any skid marks at the scene of the accident and that he did not remember Campbell pointing out any skid marks. Trooper Robinson stated that he could not estimate or calculate the speed of either vehicle; however, he noted that Campbell estimated the motor grader's speed as 15 miles per hour. Trooper Robinson stated that, although he did talk to Kennedy at the hospital, he did not recall Kennedy providing a precise speed for his van, but he did recall Kennedy saying that he had sped up to pass the motor grader.

Finally, Monica Weaver, the ALDOT employee who was the engineering assistant to the construction project, testified regarding the site conditions on the day of the accident. Weaver inspected the site both the morning of the accident and immediately after, and she indicated that the construction site was in compliance with ALDOT's specifications and requirements for signage and warnings. Weaver confirmed that the double-yellow line Kennedy crossed indicated a no-passing zone. She further testified that Kennedy's van appeared to hit the motor grader hard enough to "pull [the motor grader] around."

Clearly, there was an abundance of conflicting evidence before the jurors that would have allowed them to reach opposite conclusions as to whether Kennedy was justified in crossing the double-yellow line in an attempt to pass the motor grader; whether the motor grader was "actually engaged in work upon [the] highway," § 32-5A-116(b) ; and whether the motor grader was displaying any lights, flashing or otherwise, at the time of the accident. Accordingly, the actions of the trial court in denying Campbell and Tomlin Construction's motion for a JML on the issue of contributory negligence and in submitting the issue to the jury was proper.

B. New Trial--Spoilation-of-Evidence Instruction

Campbell and Tomlin Construction contend that the trial court committed reversible error when, over their objection, it charged the jury on the doctrine of spoliation of evidence as an inference of guilt or negligence. They specifically contend that there was no evidence indicating that Tomlin intentionally tampered with or actively concealed the damaged front axle of the motor grader or that he should have either anticipated litigation or known that the front axle was essential to Kennedy's claims.

The law in Alabama is well settled that

" '[a] party is entitled to proper jury instructions regarding the issues presented, and an incorrect or misleading charge may be the basis for the granting of a new trial.' Nunn v. Whitworth, 545 So.2d 766, 767 (Ala. 1989). If an objection to a jury charge is properly preserved for review on appeal, this Court will 'look to the entirety of the trial court's charge to see if there was reversible error.' Nelms v. Allied Mills Co., 387 So.2d 152, 155 (Ala. 1980). Reversal is warranted only when the error is considered to be prejudicial. Underwriters Nat'l Assurance Co. v. Posey, 333 So.2d 815, 818 (Ala. 1976).
"The strength of the jury verdict is based upon the right to trial by jury, White v. Fridge, 461 So.2d 793 (Ala. 1984), and a jury verdict is presumed to be correct. Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala. 1988). This presumption is strengthened by the trial court's denial of a motion for a new trial."

King v. W.A. Brown & Sons, Inc., 585 So.2d 10, 12 (Ala. 1991).

In Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala. 2000), this Court stated the following concerning spoliation of evidence:

"Spoliation is an attempt by a party to suppress or destroy material evidence favorable to the party's adversary.
May v. Moore, 424 So.2d 596, 603 (Ala. 1982). Proof of spoliation will support an inference of guilt or negligence. May, 424 So.2d at 603. One can prove spoliation by showing that a party purposefully or wrongfully destroyed a document that the party knew supported the interest of the party's opponent. Id."

On June 18, 2010, the day after the accident, Thompson Tractor Company, at Tomlin's request, removed the damaged front axle of the motor grader and transported it to its shop for repairs. On June 24, 2010, one week after the accident, counsel for Kennedy sent a letter to Tomlin stating:

"The purpose of this letter is to notify you that the vehicle/equipment in your possession is vital to our investigation of this matter. During the course of this investigation, we expect to be able to inspect and photograph the vehicle/equipment and its component parts. Therefore, we request that you retain and protect said vehicle/equipment in the condition it was in immediately following this accident and that you in no way alter, repair, modify destroy or dispose of it. We would not expect you, or anyone else on your behalf, to conduct any tests of a destructive nature, or that you allow any other person or entity to conduct such tests."

(Emphasis added.) On July 9, 2010, Tomlin sent a reply letter to Kennedy's counsel representing that the motor grader was scheduled for repairs beginning July 15, 2010, and that it could be inspected at Tomlin Construction's worksite before that date:

"Please be advised that the 2007 Cat Motor grader damaged in the above referenced accident is scheduled for repairs beginning Thursday, July 15, 2010. The motor grader is currently at the worksite on Highway 43 in Demopolis, Al. Should you require an inspection and or photos please arrange for these prior to the 15th of July."

(Emphasis added.)

The parties thereafter reached an agreement that no repairs would be made to the motor grader until Kennedy's counsel could inspect it on July 19, 2010. When Kennedy's counsel arrived at Tomlin Construction's worksite to inspect the motor grader, however, the motor grader was present but the damaged front axle had been removed. Tomlin claimed that the front axle was removed the day after the accident because the motor grader was needed to complete the construction project; he denied that he knew there was a potential for litigation at that time; and he denied he had the front axle removed to impede Kennedy's counsel from inspecting it. Tomlin further claimed that he informed anyone who called after the accident about the motor grader that its damaged parts were located at Thompson Tractor Company's shop. Tomlin finally admitted to signing the July 9, 2010, reply letter informing Kennedy's counsel that the motor grader was scheduled for repairs on July 15, 2010; he indicated that that date, however, represented the date that the motor grader would have been put back together at the worksite.

Although Tomlin disputes that he was aware of either the threat of litigation or the alleged importance of the front axle, he was, in fact, informed of both those things in the preservation letter he received from Kennedy's counsel approximately one week after the accident. Upon receiving the preservation letter, however, Tomlin made no effort to halt the scheduled repairs to the front axle. Rather, Tomlin offered an inspection date of July 19, 2010, knowing that the repairs would already have been completed at that time. It is also questionable whether, assuming Kennedy's counsel could have proceeded to Thompson Tractor Company's shop to inspect the front axle as Tomlin suggests, the front axle would have been retained in its immediate post-accident state or whether it would have been broken down for the determination of replacement parts and/or for repair. Based on the foregoing evidence, we conclude that a sufficient foundation existed for the jury charge on the doctrine of spoliation of evidence. Cf. Russell v. East Alabama Health Care Auth., 192 So.3d 1170, 1177 (Ala. Civ. App. 2015) (finding insufficient evidence of spoliation where defendant lacked knowledge that there was a threat of litigation when it recorded over video surveillance of the plaintiff's fall on its premises). More importantly, we further conclude that the jury instruction on the doctrine of spoliation had no prejudicial effect on the trial of this case because, as discussed in more detail below, nothing in the record suggests that the jury's verdict was aimed at punishing the defendants for the alleged spoliation rather than merely compensating Kennedy for his injuries.

C. Remittitur--Compensatory Damages

Campbell and Tomlin Construction finally argue that the jury verdict for $3,000,000 in compensatory damages is excessive and that the trial court erred in not ordering a remittitur. At trial, Kennedy, who was then 27 years old, testified to the injuries he sustained in the accident and his subsequent treatment, which included surgery requiring the installation of a rod to repair his broken femur and the insertion of screws to repair injuries to his pelvis. Following his release from the hospital, Kennedy remained on crutches; he was also required to adhere to an all-liquid diet for six weeks as a result of his fractured jaw. During that time, he lived with his mother, who took care of him. Kennedy testified that, at the time of the trial, he was able to walk without crutches; however, he stated that he continued to experience pain in his leg daily and is no longer able to engage in certain activities, such as playing basketball. Kennedy testified that, at the time of trial, he was employed at a Wendy's fast-food restaurant but was limited to working part-time because he was unable to stand for long periods. Deborah Kennedy, Kennedy's mother, testified concerning Kennedy's recovery following surgery, the pain he experienced during that time, and the pain and limitations he continued to experience relating to his leg injury.

Jamarreo Likes, the general manager of the Wendy's restaurant where Kennedy was employed, also testified concerning Kennedy's work limitations, which he attributed to Kennedy's leg injury. Likes testified that he was satisfied with Kennedy's performance at work; he noted, however, that, because of Kennedy's physical limitations, he had to place Kennedy at certain stations requiring less movement and had to allow Kennedy to take more breaks than other employees. Likes further noted that Kennedy could not be promoted to a better position at Wendy's, e.g., manager, because he was unable to work longer hours.

Kennedy also presented the video depositions of both physicians who had treated him for his injuries. The testimony of Stephen T. Ikard, M.D., the orthopaedic surgeon who repaired Kennedy's femur, established that Kennedy's right femur was "comminuted" or broken into several pieces, including one area that was actually "shattered." Dr. Ikard described the surgical procedure he performed that included installing of an intramedullary rod down the center of the femur bone to both align it and stabilize it. Dr. Ikard additionally described Kennedy's post-surgery recovery and the initial problems Kennedy experienced with the union of the bone to the rod, which ultimately required a bone-growth stimulator. Dr. Ikard was not able to testify to Kennedy's full recovery because Kennedy did not keep his follow-up appointments.

James L. Link, D.D.S., an oral and maxillofacial surgeon, testified that Kennedy suffered fractures to both the right mandible and the left mandible; he described the breaks as "a painful condition" but indicated that, despite the fractures, Kennedy's jawbones remained in alignment and that, for a more conservative approach, he had recommended a six-week liquid diet rather than surgery. Dr. Link further testified that, at the conclusion of those six weeks, Kennedy's jaw fractures appeared to be healing adequately, leaving no lasting impairment. Following Dr. Link's testimony, Kennedy submitted a compilation of medical bills for his hospital stay and treatment that totaled approximately $77,000. Campbell and Tomlin Construction did not object to admitting the bills into evidence.

Campbell and Tomlin Construction argue that the amount of the verdict, considered in light of the limited evidence of Kennedy's pain and suffering, reflects that it was flawed. The law is clear, however, that jury verdicts are presumed correct, "especially where damages awarded are for pain and suffering." Coca-Cola Bottling Co. v. Parker, 451 So.2d 786, 788 (Ala. 1984) ; see also Barko Hydraulics, LLC v. Shepherd, 167 So.3d 304, 309 (Ala. 2014) ("[T]he assessment of damages is within the sole province of the jury. This Court will not substitute its judgment for that of the jury and will not disturb a damages award unless the award is the product of bias, prejudice, improper motive or influence or was reached under a mistake of law or in disregard of the facts."). The law is also clear that compensatory damages for pain and suffering cannot be measured by any yardstick, and the amount awarded must be "left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion." Alabama Power Co. v. Mosley, 294 Ala. 394, 401, 318 So.2d 260, 266 (1975). "A court reviewing a verdict for compensatory damages must determine what amount a jury, in its discretion, may award, viewing the evidence from the plaintiff's perspective." Pitt v. Century II, Inc., 631 So.2d 235, 239 (Ala. 1993). "[A] trial court cannot interfere with a jury verdict merely because it believes the jury gave too little or too much." Daniels v. East Alabama Paving, Inc., 740 So.2d 1033, 1044 (Ala. 1999). Finally, this Court has recognized the presumption that a trial judge, who has the advantage of observing all the parties involved in the trial, including the jury and its reactions, is in a better position to decide whether a verdict is flawed. Daniels, 740 So.2d at 1049. In this case, the trial court provided a well reasoned analysis as to why the jury's verdict was not flawed:

"As an initial matter, in their Motion for Remittitur, [Campbell and Tomlin Construction] do not request a hearing and do not allege any evidence or point to any instance during the trial of misconduct, bias, passionate exercise of discretion, prejudice, abuse, corruption, or other improper motive by this jury affecting the amount of its award--nor is the Court aware of any. Additionally, [Campbell and Tomlin Construction] give no specifics as to how the jury misapplied or misunderstood the law--nor is the Court aware of any. [Campbell and Tomlin Construction] do not point to any misconduct by [Kennedy] or his attorneys during trial leading to the jury's verdict--nor is the Court aware of any. Instead, [Campbell and Tomlin Construction] seem to rely on the amount of the verdict as their cause. However, before addressing this contention, the Court believes it helpful to provide a basis for the denial of remittitur by giving some insight on its view of the jury, attorneys and parties.
"The jury was composed of capable, conscientious men and women who appeared to properly undertake to perform their sworn duty as jurors. Including the alternate, at least nine of the jurors were employed or retired. All but one was in their 50s or 60s. All were older than [Kennedy] and the passengers in the van with him. Because one juror could not be present the last day of trial, the alternate took her place. [Campbell and Tomlin Construction] voiced no objection to any juror. All jurors agreed that they could listen to the evidence and apply the evidence to the law as instructed by the Court which is what was observed. The jurors appeared attentive regardless of the witness or attorney asking questions. The jurors listened to the instructions on the law and followed the correct procedure told to them in asking the Court to reread one of the liability charges. [Campbell and Tomlin Construction] argued liability was the determinative issue, not damages amounts.
"This case was tried by competent counsel. [Kennedy's] counsel complied with motions in limine granted by the Court. [Kennedy's] attorneys, without objection or dispute from [Campbell and Tomlin Construction] as to the amount, placed a value on [Kennedy's] injuries; the jury agreed and awarded the maximum amount requested. During closing arguments, [Campbell and Tomlin Construction] did not challenge the figures presented by Kennedy's attorneys as representing their compensatory damages unlike the issue of liability. [Campbell and Tomlin Construction] did not provide the jury with an alternative to exercising their discretion if they found [Campbell and Tomlin Construction] were negligent. Instead, defense counsel focused on liability asking the jury to not reward [Kennedy] by giving him three million dollars but instead to punish [Kennedy] for allegedly driving too fast, crossing the double yellow line and causing the accident. The other defense counsel asked the jury to 'send a message' and asked them to consider what if it was a school bus filled with children that was turning instead of a motor grader. [Campbell and Tomlin Construction] never addressed the possibility they would lose the liability argument in closing. It seems like a contradiction for [Campbell and Tomlin Construction] to now argue that [Kennedy] did not have a substantial injury to justify all of the jury's award when they did not challenge either the severity or the amount to be awarded during trial.
"Given the absence of any evidence that the jury did anything other than what juries are supposed to do in a case such as this, this Court sees no flaw in the verdict. However, this Court will add that the verdict amount does not shock its conscience or constitute clear jury abuse....
"This is not a subjective injury case. [Kennedy] sustained a significant physical injury. He had a comminuted right femur fracture, a right and left mandibular fracture and a pulmonary contusion. Medical illustrations and medical testimony supported the severity of the injury, the difficulty inserting the rod, having to leave bone fragments in the leg, and having problems with new bone growth many months after surgery. Kennedy was admitted to the hospital seven days. His medical bills totaled $77,111.25.
"[Kennedy and his mother] testified to the severity of [Kennedy's] initial injury, how he recovered and how he has continued to be limited by his leg injury that still causes pain. [Kennedy's mother] explained in some detail how her son's life has changed as a result of the accident. From the Court's observations, the jury could have reasonably believed them. [Kennedy] was not overly sympathetic. Defendants did not challenge the clearly serious injury to his leg or having to eat out of a straw because of his broken jaw. Defendants pointed out that [Kennedy] was convicted of a felony unrelated to this accident. The Court charged the jury on how that conviction may impact [Kennedy's] credibility. Defendants also showed a photograph of [Kennedy] with his shirt off, but that picture did not seem to contradict what he said his current limitations are. However, [Kennedy's] supervisor, who was unimpeached, corroborated what [Kennedy] said about his current limitations.
"The Wendy's manager for whom [Kennedy] was working made an impressive witness. The manager was a well-spoken, professional appearing, non-party witness who described how limited [Kennedy] was with his leg and how those limitations are and will prevent [Kennedy] from standing, walking and doing the physical things necessary to work full time. His credibility as a witness went unchallenged. His testimony was as strong on the issue of damages as Trooper Cleophus Robinson's testimony was on the issue of liability, discrediting a defense theory that skid marks were left by the van and discrediting a defense witness who tried to say that he was an eyewitness.
"Because of the evidence presented as to the severity of [Kennedy's] injuries, his ongoing limitations and pain for which it was reasonable for the jury to conclude will continue the rest of his life, his disfigurement and having to have a rod in his leg where bone fragments were left, the Court cannot say that the jury abused its discretion or misunderstood the law to be applied. As the jury's verdict does not shock the conscience of the Court when considering the evidence presented of those damages, the Motion for Remittitur and for a New Trial are not due to be granted."

(Emphasis added; footnote omitted.) Although Campbell and Tomlin Construction argue that the amount of the jury verdict reflects that the verdict was flawed, they, nonetheless, point to no part of the trial transcript that would suggest that the verdict was the product of "bias, prejudice, improper motive or influence or was reached under a mistake of law or in disregard of the facts." Barko Hydraulics, 167 So.3d at 309. Rather, they merely provide this Court with an analysis of prior cases from this Court, which, they say, involve "far more severe injuries, with more debilitating, and often permanent, lasting damage[ ] and resulting mental anguish" and in which the verdicts were significantly less. However, this Court has stated that, "[i]n the absence of a flawed verdict, ... a comparison of jury verdicts in similar cases is not the standard for determining whether a jury verdict should be reduced." Daniels, 740 So.2d at 1044. The trial court entered a very detailed order finding no flaw in the jury's verdict; Campbell and Tomlin Construction present nothing to undermine that order. Accordingly, because there is nothing in the record to suggest that the jury verdict was flawed, this Court lacks the authority to invade the province of the jury with regard to its compensatory-damages award.

III. Conclusion

Based on the foregoing, the record supports the trial court's denial of Campbell and Tomlin Construction's postjudgment motion for a JML, a new trial, or a remittitur of the compensatory damages. The trial court's judgment is therefore affirmed.

AFFIRMED.

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

Shaw, J., recuses himself.

      The portion of Highway 43 on which the accident occurred is two lanes separated by a double-yellow line to indicate no passing.

      Kennedy also asserted a wantonness claim against both Campbell and Tomlin Construction and a claim of negligent entrustment against Tomlin Construction; however, Kennedy stipulated to the dismissal of those claims, and the trial court dismissed those claims with prejudice.

      Tomlin admitted that an older motor grader was also located at the worksite; however, he claimed that that motor grader was not as useful or effective as the 2007 model motor grader involved in the accident.

      It is tempting, before reviewing the facts and circumstances in this case, to perform a mathematical analysis of the proportion of the medical bills to the damages award and conclude that the award is disproportionate. But, not only is such a computation not appropriate under our jurisprudence, in this case such an analysis fails to take into consideration not only the evidence of damage, which was virtually uncontroverted, but also the trial court's thorough review of the circumstances surrounding the verdict.


source: Caselaw Access Project

license: Public Domain

text:
    Kimberly Denise BLALOCK v. Crimson Jade SUTPHIN and New York Life Insurance Company
    1170879
    Supreme Court of Alabama.
    October 26, 2018
    Robert B. French, Jr., Fort Payne, for appellant.
    Robert T. Ray, Fort Payne, for appellee Crimson Jade Sutphin.
    John N. Bolus and Mark D. Foley, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellee New York Life Insurance Company.
   SELLERS, Justice.

Kimberly Denise Blalock appeals from an order of the DeKalb Circuit Court holding that Crimson Jade Sutphin is the rightful beneficiary of a policy insuring the life of Loyd Sutphin, Jr. ("Loyd"), issued by New York Life Insurance Company. We affirm.

I. Facts and Procedural History

In late 2011, an agent for New York Life met with Loyd at his place of work in Chattanooga, Tennessee. At that time, Loyd completed an application for a $250,000 individual whole life-insurance policy. In that application, he listed his home address in Henegar, Alabama, and named his daughter, Sutphin, as the sole beneficiary. Shortly thereafter, New York Life issued Loyd a life-insurance policy in accordance with that application and delivered it to him at his place of work in Chattanooga.

In October 2012, Loyd married Blalock, and they lived together at his home in Henegar. Soon after, in December 2012, Loyd submitted a change-of-beneficiary-designation form to New York Life, designating Blalock and Sutphin each as a 50% beneficiary under the policy. A few years later, in February 2016, Loyd and Blalock divorced; however, the life-insurance policy was not addressed in the divorce judgment, and Loyd never changed the beneficiary designation following the divorce.

Loyd died later that year on December 23, 2016.

In April 2017, Sutphin filed a action in the DeKalb Circuit Court, seeking a judgment declaring that she was the rightful beneficiary of the entire proceeds of the New York Life policy because, she asserted, pursuant to § 30-4-17, Ala. Code 1975, Blalock's beneficiary designation had been revoked upon her divorce from Loyd. Blalock moved to dismiss the action, arguing that Tennessee, not Alabama, law should govern and, thus, that the DeKalb Circuit Court did not have subject-matter jurisdiction to hear the case. The circuit court denied the motion to dismiss; Blalock filed a motion to reconsider the denial. At an evidentiary hearing on her motion to reconsider, Blalock again argued that the DeKalb Circuit Court lacked subject-matter jurisdiction but also asserted that the application of § 30-4-17 in this instance violated § 22 of the Alabama Constitution of 1901; the circuit court denied Blalock's motion to reconsider.

The case proceeded to a bench trial, at which Blalock argued that she and Loyd had established a common-law marriage after their divorce and before his death, thereby reviving her beneficiary designation under the policy. The circuit court heard testimony from numerous witnesses on this issue, most of whom testified on Blalock's behalf. On March 26, 2018, the circuit court issued a final order in the case, holding that Sutphin was the rightful beneficiary under the policy because Blalock's beneficiary designation had been revoked by virtue of § 30-4-17 and no common-law marriage existed to revive that designation before Loyd's death.

Blalock then filed this appeal asserting (1) that the circuit court did not have subject-matter jurisdiction to adjudicate the case; (2) that the application of § 30-4-17 violated § 22, Ala. Const. 1901; and (3) that the circuit court erred in finding that Blalock and Loyd were not remarried at common law before his death.

II. Subject-Matter Jurisdiction

Blalock first argues that the DeKalb Circuit Court did not have subject-matter jurisdiction to adjudicate the underlying action. We disagree.

"Matters of subject-matter jurisdiction are subject to de novo review." DuBose v. Weaver, 68 So.3d 814, 821 (Ala. 2011). Under § 12-11-30, Ala. Code 1975, the circuit courts of this state "have exclusive original jurisdiction of all civil actions in which the matter in controversy exceeds ten thousand dollars ($10,000), exclusive of interest and costs."

This action was filed as a request for a declaratory judgment in accordance with Rule 57, Ala. R. Civ. P., and §§ 6-6-222 and 6-6-223, Ala. Code 1975. Specifically, Sutphin requested a judgment declaring that she is the rightful, sole beneficiary of Loyd's life-insurance policy and that, by virtue of § 30-4-17, Blalock has no legal right to any proceeds from the policy. The proceeds in dispute amount to over $132,000. The jurisdictional threshold was, therefore, clearly met.

Blalock's claim that the circuit court lacked subject-matter jurisdiction rests primarily on her assertion that Tennessee's substantive law should govern any interpretation and implementation of the terms of the life-insurance policy. Even if that were true, however, the circuit court still maintained subject-matter jurisdiction over the action. The question of the propriety and applicability of subject-matter jurisdiction is distinct from the question of what forum's law should be applied to interpret a contract. See Cherokee Ins. Co. v. Sanches, 975 So.2d 287 (Ala. 2007) (holding that the circuit court should have applied Tennessee law to plaintiff's claim seeking uninsured-motorist benefits under automobile-insurance policy without ever questioning if subject-matter jurisdiction was proper).

Because Blalock's subject-matter-jurisdiction argument was essentially a choice-of-law argument, it is appropriate to address whether the circuit court was correct in applying Alabama law when interpreting the policy. We conclude that it was.

When determining which state's law applies in a contract dispute, Alabama follows the lex loci contractus rule. Cherokee Ins. Co., 975 So.2d at 292. Under this principle, we "first look to the contract to determine whether the parties have specified a particular sovereign's law to govern." Stovall v. Universal Constr. Co., 893 So.2d 1090, 1102 (Ala. 2004). Absent such a specification, we follow the general rule that the "law of the state where the contract was formed" should be applied, "unless it is contrary to [this State's] fundamental public policy." Id.

There is no language in the policy application or the policy itself that specifies a particular state's law to govern its interpretation. Under the general rule, we then look to where the contract was formed. Although Loyd was a resident of Alabama at all times relevant to this action, he applied for the policy and the policy was delivered in Chattanooga, Tennessee, where he worked. The policy was, therefore, formed in Tennessee. See Cherokee Ins. Co., 975 So.2d at 293 (holding that "Tennessee was the place of contract because the policy was issued and delivered to [the policyholder] in that state"). The question now becomes whether the application of Tennessee's substantive law would be contrary to this State's fundamental public policy.

A state's public policy may be found in its constitution, its statutes, its published rules, the decisions of its courts, and the prevailing customs of the state. See San Francisco Residence Club, Inc. v. Baswell-Guthrie, 897 F.Supp.2d 1122, 1172 (N.D. Ala. 2012) (citing 16 Am. Jur. 2d Conflict of Laws § 18 (2012) ). The public-policy exception in a choice-of-law analysis is intended to be narrowly applied; however, "[t]he exception is more likely to apply if the state has memorialized its public policy in a statute." Id. This is in recognition that it is primarily "for the lawmakers to determine the public policy of the state." Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 357, 51 S.Ct. 476, 75 L.Ed. 1112 (1931).

This case centers around the applicability of § 30-4-17, which states, in pertinent part:

"(b) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
"(1) revokes any revocable:
"a. disposition or appointment of property made by a divorced individual to his or her former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse...."

(Emphasis added.) This section was derived from the Uniform Probate Code and expanded the predecessor statute "to cover 'will substitutes' such as ... life insurance and retirement-plan beneficiary designations ... that the divorced individual established before the divorce." Alabama Comment, § 30-4-17 ; see also Uniform Probate Code § 2-804 (2010). The statute was passed by the Alabama Legislature in 2015 and became effective September 1, 2015. Act No. 2015-312, Ala. Acts 2015.

Tennessee has not adopted this section of the Uniform Probate Code. Under Tennessee law, a divorce revokes any testamentary disposition made by a divorced individual to his or her former spouse; however, it does not affect nontestamentary will substitutes such as life-insurance-beneficiary designations. See Tenn. Code Ann., § 32-1-202.

Applying Tennessee law in this case, therefore, violates the fundamental public policy of Alabama. When enacting § 30-4-17, the Alabama Legislature weighed the options and determined that the approach provided for in the Uniform Probate Code better reflected the presumed intent of divorced individuals in this state. Here, the decedent policyholder resided in Alabama at all times relevant to this action. He was divorced in Alabama, and he died in Alabama. His policy application listed his address in Alabama, and he received correspondence from New York Life at that Alabama address. Thus, it is appropriate that Alabama law, and not Tennessee law, govern the interpretation of his life-insurance policy to determine the beneficiaries of the policy and the impact of his divorce on the terms of that policy.

III. Constitutionality of the Statute as Applied

Blalock additionally argues that the application of § 30-4-17 in this case violates the Alabama Constitution. We disagree.

"This Court's review of constitutional challenges to legislative enactments is de novo." Northington v. Alabama Dep't of Conservation & Natural Res., 33 So.3d 560, 564 (Ala. 2009). Article I, § 22, Ala. Const. 1901, states: "That no ex post facto law, nor any law, impairing the obligations of contracts ... shall be passed by the legislature ...." This section uses language virtually identical to that of Art. I, § 10, of the United States Constitution, which states: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligations of Contracts ...." Indeed, this Court has previously stated that the Alabama Contracts Clause and the federal Contracts Clause have the same purpose.

Recently, in Sveen v. Melin, 584 U.S. ----, 138 S.Ct. 1815, 201 L.Ed.2d 180 (2018), the United States Supreme Court considered a similar challenge to a Minnesota revocation-on-divorce statute as violative of the federal Contracts Clause by revoking the named beneficiary under a life-insurance policy. The Court began its analysis by providing the following framework for how it reviews a challenge under the Contracts Clause:

"[N]ot all laws affecting pre-existing contracts violate the Clause. To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has 'operated as a substantial impairment of a contractual relationship.' In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights. If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation. In particular, the Court has asked whether the state law is drawn in an 'appropriate' and 'reasonable' way to advance 'a significant and legitimate public purpose.' "

584 U.S. ----, 138 S.Ct. at 1821-22 (internal citations omitted).

The Supreme Court concluded that Minnesota's statute did not substantially impair the life-insurance contract for three reasons. "First, the statute is designed to reflect a policyholder's intent--and so to support, rather than impair, the contractual scheme." 584 U.S. ----, 138 S.Ct. at 1822. Second, the law is unlikely to disturb policyholder expectations because "an insured cannot reasonably rely on a beneficiary designation remaining in place after a divorce." 584 U.S. ----, 138 S.Ct. at 1823 (noting that "divorce courts have wide discretion to divide property between spouses when a marriage ends"). And finally, "the statute provides a mere default rule," which the policyholder can undo by sending a change-of-beneficiary form to his insurer. 584 U.S. ----, 138 S.Ct. at 1822.

In its opinion, the Supreme Court specifically discussed the fact that the Minnesota statute was modeled after the same section of the Uniform Probate Code from which Alabama's statute was derived. 584 U.S. ----, 138 S.Ct. at 1819 (noting that 26 states, including Alabama, have "adopted revocation-on-divorce laws substantially similar to the [Uniform Probate] Code's"). Its reasoning in upholding the Minnesota statute is, therefore, heavily instructive here.

In 2015, when § 30-4-17 became effective, it did not retroactively impair any existing contractual obligations. Instead, it created a prospective default rule, i.e., that a divorce effectively revokes any revocable beneficiary designation in favor of the former spouse, absent further action by the policyholder. Nevertheless, Blalock argues that the circuit court's application of this statute violated her and Loyd's constitutional rights because, she says, "[t]here is no evidence, that [Loyd] ever learned of the Alabama statute, or its effect, on his insurance policy." Thus, Blalock asks this Court to presume Loyd's ignorance of the law and, based on that presumption, to conclude that applying this statute to the policy violated his rights under the Alabama Constitution of 1901. We cannot entertain either request. See Barber Pure Milk Co. of Montgomery v. Alabama State Milk Control Bd., 275 Ala. 489, 494, 156 So.2d 351, 355 (1963) ("It is elemental that ... '[a]ll [persons] are charged as a matter of public policy with a knowledge of the law pertaining to their transactions.' ").

As discussed in Sveen, policyholders should be aware that a divorce may affect a beneficiary designation in favor of their former spouse. Moreover, § 30-4-17 leaves open an avenue for the policyholder to reinstate the former spouse as a beneficiary if the policyholder so desires. It, therefore, does not unconstitutionally impair any contractual relationship. Furthermore, because the holding in Sveen is so analogous to this situation, to reach a different result could create a greater misunderstanding about the impact of divorce on contractual will substitutes. Here, we establish clear guidelines to promote stability in our laws and to clarify that a divorce, or annulment, affects a beneficiary designation under any number of contractual documents such that spouses should carefully consider how to address beneficiary designations, mindful that our laws (as in many other instances) provide a default in the absence of action by divorcing spouses.

IV. Existence of a Common-Law Marriage

Finally, Blalock contends that she and Loyd established a common-law marriage following their divorce, thereby reviving her beneficiary designation in the life-insurance policy. See § 30-4-17(e) ("Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment."). Because we must presume that the circuit court's findings of fact are correct, we affirm its holding that a common-law marriage did not exist between Blalock and Loyd.

Common-law marriage has now been abolished in Alabama. See Ala. Code 1975, § 30-1-20. However, "[a]n otherwise valid common-law marriage entered into before January 1, 2017, shall continue to be valid in this state." Id.

We have previously stated that " '[c]ourts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.' " Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala. 1992) (quoting Baker v. Townsend, 484 So.2d 1097, 1098 (Ala. Civ. App. 1986) ). Traditionally, the following elements must be present for a common-law marriage to exist: "1) capacity; 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation." Boswell v. Boswell, 497 So.2d 479, 480 (Ala. 1986). "The determination of whether a relationship between a man and a woman was intended as a common-law marriage is made on the facts of a particular case, with regard to the situation and circumstances of the individuals involved." Id.

The record indicates that Blalock and Loyd were originally married in October 2012 and that they divorced in February 2016. At some point in October 2016, the two reunited and lived together for approximately two months before Loyd died on December 23, 2016. The circuit court heard testimony from 12 different witnesses on this issue and also considered documentary evidence that was submitted. In its final order, the circuit court noted that most of the witnesses indicated that they could not tell a difference between the couple's relationship when they were married and their relationship upon reuniting. However, the circuit court also found that the couple intended to be remarried in an official ceremony in the future. In fact, Loyd repurchased the original wedding rings in November 2016 from Blalock's niece, who had bought them following the divorce.

Relying on this Court's opinion in Turner v. Turner, 251 Ala. 295, 297, 37 So.2d 186, 188 (1948), in which we stressed that "[t]here must be a mutual understanding to presently enter into the marriage relationship," the circuit court held that, although Blalock and Loyd intended to remarry, they were not married when Loyd died. Whether the parties had the present intent to enter the marriage relationship is a question of fact. Dyess v. Dyess, 94 So.3d 384, 387 (Ala. Civ. App. 2012). Likewise, "[a] trial judge's findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong." Lofton, 611 So.2d at 336 (citing Copeland v. Richardson, 551 So.2d 353, 354 (Ala. 1989) ).

The circuit court considered the facts and circumstances surrounding the relationship between Loyd and Blalock, with evidence from numerous witnesses and documents. We cannot substitute our judgment for the circuit court's unless we determine that there was insufficient evidence to support its determination that Blalock had not established by clear and convincing evidence that she and Loyd had entered into a common-law marriage. Based on the magnitude of the evidence before the circuit court, we cannot say that the circuit court, which heard and weighed the evidence firsthand, erred in finding that there had been no common-law remarriage between Blalock and Loyd.

V. Conclusion

We affirm the circuit court's order, holding that Sutphin is the rightful, sole beneficiary of Loyd's New York Life policy because Blalock's beneficiary designation was revoked under § 30-4-17, by virtue of her divorce from Loyd.

AFFIRMED.

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

Shaw, J., concurs in the result.

      Sutphin and Blalock are both residents of DeKalb County.

      In her motion to dismiss, Blalock noted that she had previously filed an action, in March 2017, against New York Life in Hamilton County, Tennessee, regarding the policy. That action was later removed to the United States District Court for the Eastern District of Tennessee, and Sutphin was added as a party. However, the record indicates that the federal district court in Tennessee stayed that case pending a determination of whether the DeKalb Circuit Court intended to take jurisdiction over the matter. Thus, we presume Blalock's original action has since been dismissed.

      Blalock originally alleged that she was owed $160,000; however, New York Life disputed that that was the proper amount owed under the policy. After granting New York Life's motion to interplead the policy proceeds, the circuit court accepted New York Life's tender of $132,532.89 to the court.

      " '[T]o preserve sacred the principle of the inviolability of contracts against that legislative interference that the history of governments has shown to be so imminent, in view of the frequent engendering of popular prejudice, and the consequent fluctuation of popular opinion.' " Opinion of the Justices No. 333, 598 So.2d 1362, 1365 (Ala. 1992)(quoting Edwards v. Williamson, 70 Ala. 145, 151 (1881) ).

      In support of this contention, Blalock notes that Loyd purchased a group life-insurance policy from the same insurance agent three weeks before his death in which she and Sutphin were named co-beneficiaries. This, alone, does not conclusively show that Loyd was unaware that, under Alabama law, Blalock's beneficiary designation in the New York Life policy had been revoked by their divorce. In fact, the opposite inference could be drawn, i.e., that Loyd wanted to provide for Blalock by naming her as a beneficiary under a new policy because she would no longer be a beneficiary under the New York Life policy because her status as a beneficiary had been revoked by the divorce.


text:
    EX PARTE ALABAMA PEACE OFFICERS' STANDARDS AND TRAINING COMMISSION
    (In re: Bryan Mark Grimmett v. Alabama Peace Officers' Standards and Training Commission)
    1170892
    Supreme Court of Alabama.
    October 26, 2018
    Steve Marshall, atty. gen., and Joseph D. Steadman, deputy atty. gen., of Dodson & Steadman, PC, Mobile, for petitioner.
    Kenneth J. Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for respondent.
   SELLERS, Justice.

The Alabama Peace Officers' Standards and Training Commission ("the Commission") petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to enter an order dismissing, on the ground of sovereign immunity under Art. I, § 14, Ala. Const. 1901, the complaint filed against it by Bryan Mark Grimmett. Because the Commission has demonstrated a clear legal right to this relief, we grant the petition and issue the writ.

Facts

The underlying facts of this case are recited fully in Ex parte Alabama Peace Officers' Standards & Training Commission, 238 So.3d 48 (Ala. Civ. App. 2017). That opinion concludes:

"[W]e affirm the judgment insofar as it reversed the Commission's order revoking Grimmett's law-enforcement certification. We reverse the judgment insofar as it ordered that Grimmett's law-enforcement certification be fully reinstated. We remand the cause to the trial court to enter an order requiring the Commission to withdraw its revocation of Grimmett's law-enforcement certification and for other proceedings consistent with this opinion."

The Court of Civil Appeals reversed that portion of the trial court's judgment fully reinstating Grimmett's law-enforcement certification because Grimmett had conceded in the record that he had not satisfied the 80-hour refresher-training course required for reinstatement of his law-enforcement certification. On remand, the trial court entered an order stating, among other things, that "[a]ny recertification or provisional employment as a law enforcement officer shall be subject to applicable law, rules, and requirements of the Commission in effect at the time of any application for recertification by Mr. Grimmett."

At the time the Court of Civil Appeals issued its May 2017 opinion, the Commission had in place a rule requiring a previously certified law-enforcement officer absent from employment as a law-enforcement officer for two years or more to successfully complete an approved 80-hour academy recertification course. In October 2017, the Commission amended its rule on certification to include, among other things, a provision that, if the Commission approves an application for admission to certification training of a law-enforcement officer absent from law enforcement for more than 10 years, that applicant must satisfactorily complete the regular basic-training academy, which is a 520-hour course. It is undisputed that Grimmett has been not employed as a law-enforcement officer since 2000.

On April 3, 2018, Grimmett filed a complaint in the Montgomery Circuit Court seeking declaratory and injunctive relief against the Commission, asserting that he was provisionally offered a job in law enforcement in December 2017; that he attempted to enroll in the 80-hour refresher-training program; and that the Commission refused to allow him to enroll in the refresher-training program, instead requiring him to complete the full 520-hour basic-academy training course. Grimmett sought, among other things, a judgment requiring the Commission to

"obey the Court of Civil Appeals['] ruling; [to] allow Grimmett to attend the 80-hour refresher course; [to] enjoin [the Commission] from applying [its new rule]; to pay all costs and attorney's fees; and to grant such other relief as allowed by law."

On May 4, 2018, the Commission moved the circuit court to dismiss the complaint on the ground that the Commission, as an agency of the State of Alabama, is entitled to sovereign immunity under § 14. Grimmett thereafter filed an amended complaint in which he purported to add as a defendant R. Alan Benefield, in his official capacity as executive secretary of the Commission. On June 13, 2018, the circuit court entered an order denying the Commission's motion to dismiss. This petition followed.

Standard of Review

A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: " '(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 Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ). It is well established that "a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus." Ex parte Alabama Dep't of Mental Health & Mental Retardation, 837 So.2d 808, 810-11 (Ala. 2002). "A ruling on a motion to dismiss is reviewed without a presumption of correctness." Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala. 2003).

Analysis

The Commission asserts several grounds as a basis on which, it says, this Court may issue the writ of mandamus. However, we will address only the issue whether the circuit court erred in failing to dismiss the complaint against the Commission on the basis of sovereign immunity. In Alabama Department of Corrections v. Montgomery County Commission, 11 So.3d 189, 191-92 (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)."

It is undisputed that the Commission is an agency of the State of Alabama. As a State agency, the Commission is entitled to absolute immunity under § 14. See Ex parte Alabama Peace Officers' Standards & Training Comm'n, 34 So.3d 1248, 1251 (Ala. 2009) (" Section 36-21-41, Ala. Code 1975, creates the Alabama Peace Officers' Standards and Training Commission. It is undisputed that the statutorily created Commission is an agency of the State of Alabama."). Accordingly, the circuit court had no subject-matter jurisdiction over the complaint and, thus, was required to dismiss it in its entirety. As noted, after the Commission moved to dismiss the complaint on the basis of sovereign immunity, Grimmett amended the complaint to add as a defendant the Commission's executive secretary in his official capacity. However, because the circuit court never acquired subject-matter jurisdiction over the original complaint naming only the Commission, the amended complaint is also a nullity. See Alabama Dep't of Corr., 11 So.3d at 193 (explaining that "[t]he Commission's original complaint named only the DOC [Department of Corrections] as a defendant. Because the DOC is a State agency, it is, under § 14, absolutely immune from suit. Because the original complaint named only a party that has absolute State immunity, it failed to trigger the subject-matter jurisdiction of the circuit court. Consequently, it was a nullity. The purported amendment of a nullity is also a nullity").

Conclusion

The Commission has established a clear legal right to the relief requested. Accordingly, we grant the petition for a writ of mandamus and direct the circuit court to enter an order dismissing the complaint against the Commission based on the doctrine of sovereign immunity.

PETITION GRANTED; WRIT ISSUED.

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


author: THOMPSON, Presiding Judge.

text:
    Thomas CHANDLER and Rebecca E. Chandler v. BRANCH BANKING & TRUST COMPANY
    2160999
    Court of Civil Appeals of Alabama.
    October 19, 2018
    Ezra Jordan III, Irondale, for appellants.
    Damon R. Ryals and Kerry P. McInerney of McCalla Raymer Leibert Pierce, LLC, Birmingham, for appellee.
   THOMPSON, Presiding Judge.

In this ejectment action, Thomas Chandler ("Thomas") and Rebecca E. Chandler ("Rebecca") appeal from a summary judgment of the Shelby Circuit Court ("the trial court") in favor of Branch Banking & Trust Company ("BB & T"). The judgment awards BB & T immediate possession of certain property.

The record contains the following evidence relevant to this appeal. Thomas was not married when, in October 2011, he obtained a mortgage on what appears to be residential property in Shelby County ("the property"). That mortgage was assigned to BB & T on April 1, 2013. At some point after October 2011 but before September 20, 2013, Thomas and Rebecca married. On September 20, 2013, Thomas executed a deed granting Rebecca joint interest in the property with the right of survivorship ("the September 2013 deed"). The September 2013 deed was recorded in the Shelby Probate Court on October 1, 2013.

Thomas subsequently defaulted on the mortgage, and the property was purchased by BB & T at a foreclosure sale on December 23, 2014. On December 29, 2014, BB & T sent a letter to Thomas demanding possession of the property and giving Thomas 10 days to vacate it. When Thomas failed to act, BB & T filed a complaint for ejectment against him on January 9, 2015. Rebecca was not named in the action. On June 19, 2017, Rebecca filed a motion in the trial court seeking to intervene in the action. In support of her motion, Rebecca attached the September 2013 deed conveying to her an interest in the property and asserting that she had received no notice of the previous proceedings in the trial court. The trial court denied Rebecca's motion to intervene on July 4, 2017.

A summary judgment against Thomas was entered on July 26, 2017. On August 17, 2017, the clerk of the trial court issued a writ of possession in favor of BB & T. On September 5, 2017, both Thomas and Rebecca appealed the July 26, 2017, judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

The issue of whether the trial court erred in denying Rebecca's motion to intervene is raised on appeal. In its appellate brief, BB & T argues that the appeal from the July 4, 2017, order, which BB & T characterizes as denying permissive intervention, is untimely in this case. The parties did not discuss whether Rebecca was an indispensable party, however. Therefore, we requested that the parties submit letter briefs on that issue. The parties timely complied with our request.

"The absence of an indispensable party is a jurisdictional defect that renders the proceeding void. See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala. 2002). Although no party to this appeal has raised the issue of indispensable parties, the absence of an indispensable party can be raised for the first time on appeal by the appellate court ex mero motu, even if the parties failed to present the issue to the trial court. Id."

Allbritton v. Dawkins, 19 So.3d 241, 243 (Ala. Civ. App. 2009). In Allbritton, this court pointed out:

" '[The supreme court] has also held ... that in cases where the final judgment will affect ownership of an interest in real property, all parties claiming an interest in the real property must be joined.'
" Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) (citations omitted). See also Johnston v. White-Spunner, 342 So.2d 754 (Ala. 1977) (when a trial court is asked to determine property rights of property owners not before the court, the absent property owners are indispensable parties and any judgment entered in the absence of those parties is void)."

19 So.3d at 244.

Since Allbritton was published, our supreme court has "definitively stated that the failure to join an indispensable party does not affect the subject-matter jurisdiction of a court." Miller v. City of Birmingham, 235 So. 3d 220, 229 (Ala. 2017) (citing Campbell v. Taylor, 159 So.3d 4, 9 (Ala. 2014) ). Nonetheless, the Miller court went on to quote commentators Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 1611 (3d ed 2001), as follows:

"Because an objection to the failure to join a person who should be regarded as indispensable under Rule 19(b) [Fed. R. Civ. P.,] may be raised as late as on appeal from a final judgment or by the court on its own motion, the impression is created that a failure to join is jurisdictional, since ordinarily only jurisdictional defects are treated in this fashion. Thus, it is not surprising that cases can be found that speak of nonjoinder as ousting the court of jurisdiction. Since the indispensable-party doctrine is equitable both in its origin and nature, however, scholarly commentary as well as the vast majority of courts reject this 'jurisdictional' characterization."

(Footnotes omitted.) This court raised the issue of whether Rebecca was an indispensable party on its own motion out of equitable concerns, as discussed below. However, we acknowledge that the trial court retained subject-matter jurisdiction over this action.

BB & T argues that Rebecca is not an indispensable party because, it says, her interest in the property is identical to Thomas's interest, and, therefore, BB & T asserts, her interest is adequately protected by Thomas. In support of its argument, BB & T cites Rule 24(a)(2), Ala. R. Civ. P., which provides that, upon timely application, anyone shall be permitted to intervene in an action

"when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

See also Rule 19, Ala. R. Civ. P., which provides for joinder of persons needed for just adjudication. Accordingly, BB & T contends, Rebecca is not an indispensable party.

From our reading of Allbritton and Rule 24(a)(2), we conclude that those authorities mandate the joinder or intervention of a property owner whose rights in certain property are being litigated. This is so even when a party already named in the action is protecting rights aligned with those of the nonparty property owner. Such joinder is not discretionary. Joinder of Rebecca as an indispensable party also promotes judicial economy. If Rebecca were not a party in this action, she would not be bound by a judgment entered against Thomas only. As our supreme court noted in Allbritton, which was partially quoted by BB & T in its letter brief,

" 'Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Where the parties before the court adequately represent the absent parties' interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court.' "

19 So.3d at 243-44 (quoting Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala. 1991) ). Because Rebecca has a joint-ownership interest in the property, it should have been an easy matter for her to intervene as she requested, regardless of whether she believed Thomas adequately represented her interest. Nonetheless, the trial court rejected her request to intervene.

It is undisputed that Rebecca is a joint owner of the property. Despite BB & T's argument to the contrary, we conclude that, as a joint owner, on the authority of Allbritton and Rules 19 and 24(a)(5), Ala. R. Civ. P., Rebecca was a necessary and indispensable party to this action. "The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment. Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971)." J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala. 1981). Accordingly, we reverse the judgment of the trial court, and we remand the action to allow the joinder of Rebecca as a necessary and indispensable party and for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      The litigation of this matter was stayed for a period after Thomas filed a suggestion of bankruptcy in the trial court. See, e.g., Steeley v. Dunivant, 522 So.2d 299, 300 (Ala. Civ. App. 1988).

      In quoting the above passage in its letter brief, BB & T omitted the emphasized language.


author: THOMAS, Judge.

text:
    MORRIS HOUSE CONDOMINIUM ASSOCIATION, INC. v. Alex HIRSCHFIELD
    2170666
    Court of Civil Appeals of Alabama.
    October 26, 2018
    H.C. Ireland III of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for appellant.
    Susan Walker of McDorman & Walker, Birmingham, for appellee.
   THOMAS, Judge.

Morris House Condominium Association, Inc. ("the Association"), appeals from an order of the Jefferson Circuit Court ("the trial court") finding it in contempt of an earlier order and granting an attorney's lien to Alex Hirschfield. We dismiss the appeal.

Background

In March 2016, the Association filed a complaint in the trial court against Mark Hannon, JoAnne Hannon, 2325 Morris Avenue, LLC, and Hannon Group, Inc. (hereinafter collectively referred to as "the Hannon defendants"), alleging, among other things, that they owed unpaid dues associated with a condominium located within the Association's governance; the Association also sought injunctive relief. The Association was represented by Hirschfield. The litigation between the Association and the Hannon defendants proceeded with responsive pleadings, discovery, and a dispositive motion filed by Mark, JoAnne, and Hannon Group, Inc. 2325 Morris Avenue, LLC, also asserted a counterclaim against the Association. In September 2017, the trial court entered a summary judgment in favor of Mark and JoAnne regarding all of the Association's claims against them.

On January 3, 2018, Hirschfield filed a motion asking for the trial court's permission to withdraw as counsel for the Association, citing breakdowns in communication and the attorney-client relationship. Hirschfield also filed a "notice of attorney's lien and motion for attorney fees," citing as support § 34-3-61, Ala. Code 1975. On January 11, 2018, the trial court entered an order indicating that it had conducted an evidentiary hearing at which all parties were present; granting Hirschfield's motion to withdraw; ordering that, in accordance with an October 2017 agreement between Hirschfield and the Association, the Association was required to pay Hirschfield $3,000 "for compensation that was due on or before December 1, 2017, and January 1, 2018"; and withholding adjudication regarding Hirschfield's request for an attorney's lien until the Association could obtain counsel to assist it with Hirschfield's assertions. The trial court ordered the Association to pay Hirschfield $3,000 within seven days.

On January 29, 2018, Hirschfield filed a motion asking the trial court to hold the Association in contempt for failing to pay him $3,000. On February 7, 2018, the trial court entered an order scheduling a hearing regarding Hirschfield's motion. On February 22, 2018, the trial court entered an order that provided, in relevant part:

"The above entitled matter came on before the Court on February 20, 2018, on ... Hirschfield's motion for contempt, for sanctions, and to make attorney's lien final. After due consideration, the Court finds the motion well taken and the same is hereby GRANTED.
"It is ORDERED and ADJUDGED:
"1. [The Association] is in contempt for failing to comply with this Court's order of January 11, 2018, requiring the payment of reasonable attorney's fees in the amount of $3,000.00 to ... Hirschfield.
"2. ... Hirschfield's Motion for Attorney Lien is hereby GRANTED."

The next day, the trial court amended its order to specify that the amount of the attorney's lien awarded to Hirschfield was $7,400.

The Association retained new attorneys, who filed notices of appearance. On March 9, 2018, the Association filed a motion asking the trial court to set aside its finding of contempt against the Association and its award of an attorney's lien to Hirschfield. In its motion, the Association asserted that it had not received adequate notice of Hirschfield's motion seeking attorney fees, his motion seeking a finding of contempt against the Association, or the trial court's hearing regarding Hirschfield's contempt motion.

The Association further asserted that it had already paid Hirschfield $3,000, as ordered by the trial court. The Association's motion was accompanied by an affidavit of its president and an affidavit of the president of RMS Management, which was the entity providing third-party management services for the Association. The Association also provided a copy of a check made to the order of Hirschfield in the amount of $3,000 and dated February 28, 2018. The Association also argued that "the grant of an attorney's lien is premature at this stage in the proceedings" and that "an attorney lien is only enforceable following entry of [a] final judgment." The trial court scheduled a hearing regarding the Association's motion. Before the scheduled hearing date, the Association filed a notice of appeal to this court on April 5, 2018. The trial court entered an order staying further proceedings until the appeal is resolved.

After the Association submitted its appellate brief, Hirschfield filed a motion asking this court for permission to file an appellate brief, which we granted. After Hirschfield submitted his appellate brief, the Association filed a reply brief and a motion to strike Hirschfield's brief, arguing that Hirschfield was not a party to the underlying action. On appeal, the Association's substantive argument focuses primarily on the evidence it presented indicating that it lacked sufficient notice of the relevant proceedings, that it did not wilfully violate the trial court's January 11, 2018, order, and that it eventually paid Hirschfield the $3,000 ordered by the trial court.

Analysis

We first consider the Association's assertion that Hirschfield was not a party to the underlying action and its motion arguing that Hirschfield's appellate brief should therefore be struck. Curiously, the Association does not argue that Hirschfield's purported absence from the trial court's proceedings precluded the trial court from awarding the relief obtained by Hirschfield. The Association instead addresses only Hirschfield's ability to submit an appellate brief in this court. The Association provides no legal authority for guidance on this issue and relies only on Hirschfield's status that is reflected on the State Judicial Information System case-action summary contained in the record, which lists him as "other" as opposed to "defendant."

We will therefore begin by examining legislative direction and caselaw applying it. Section 34-3-61, Ala. Code 1975, provides, in relevant part:

"(a) Attorneys-at-law shall have a lien on all papers and money of their clients in their possession for services rendered to them, in reference thereto, and may retain such papers until the claims are satisfied, and may apply such money to the satisfaction of the claims.
"(b) Upon actions and judgments for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy the action or judgment, until the lien or claim of the attorney for his or her fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or judgment to enforce their liens as their clients had or may have for the amount due thereon to them.
"(c) Upon all actions for the recovery of real or personal property, and upon all judgments for the recovery of the same, attorneys-at-law shall have a lien on the property recovered, for their fees, superior to all liens but liens for taxes, which may be enforced by the attorneys-at-law, or their lawful representatives, as liens on personal and real estate, and the property recovered shall remain subject to the liens, unless transferred to bona fide purchasers without notice."

"The purpose of § 34-3-61 is 'to protect the attorney from loss of his investment in time, effort, and learning, and the loss of funds used in serving the interest of the client.' Triplett v. Elliott, 590 So.2d 908, 910 (Ala. 1991)." Harlow v. Sloss Indus. Corp., 813 So.2d 879, 887 (Ala. Civ. App. 2001). Our supreme court has held that, under § 34-3-61 and its predecessors, attorneys may intervene in an action to protect their fees in certain circumstances. See generally id. at 886-90 (expressly stating that the propriety of the attorney's intervention in that case was not at issue on appeal but summarizing caselaw touching on that issue in analyzing the relevant appellate issues).

Rule 24, Ala. R. Civ. P., governs intervention in civil actions, and Rule 24(c) specifically provides, in relevant part: "A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Hirschfield did not file a traditional motion to intervene in the underlying action. He did, however, file a "notice of attorney's lien and motion for attorney fees," in which he set out the grounds for the affirmative relief he sought against the Association and certified that he had served his motion on all the parties. Hirschfield's motion thus disclosed his desire to participate in the action between the Association and the remaining Hannon defendants in an effort to protect his fees.

Although the Association has consistently argued that it lacked sufficient notice of the relief sought by Hirschfield to be properly held in contempt, there is no indication that it has ever argued that Hirschfield should not have been permitted to intervene in the underlying action, which is a threshold issue that is separate and distinct from the question whether the Association acted contumaciously. Specifically, in its motion to set aside the trial court's finding of contempt and in its appellate brief, the Association has relied on the notice requirements of Rule 70A(c)(2), Ala. R. Civ. P., regarding contempt and has not argued that service of Hirschfield's "notice of attorney's lien and motion for attorney fees" was improper under Rule 5, Ala. R. Civ. P., which, as noted in the quote from Rule 24(c) above, provides the proper procedure for seeking intervention in a civil action.

More importantly, regarding the trial court's January 11, 2018, hearing addressing Hirschfield's motion to withdraw and his motion seeking attorney fees, the Association states in its appellate brief that its president "was able to attend the hearing and informed the trial court that the Association owed ... Hirschfield $3,000.00 in attorney's fees and that the Association would pay that amount." A party's failure to complain of improper service in the trial court at the proper time constitutes a waiver of such defect. See D.D. v. Calhoun Cty. Dep't of Human Res., 81 So.3d 377, 380 (Ala. Civ. App. 2011) ("A general appearance by a party either in person or through an attorney waives any objection to improper service of process."). Thus, we view the Association's failure to object to Hirschfield's participation in the proceedings below and the undisputed agreement of its president that it owed Hirschfield $3,000 as the Association's acquiescence to Hirschfield's intervention in the underlying action. For those reasons, we hereby deny the Association's motion to strike Hirschfield's appellate brief.

Now that we have ascertained Hirschfield's status as a party in the underlying action, we next consider whether the trial court's February 2018 order finding the Association in contempt and granting Hirschfield an attorney's lien in the amount of $7,400 constituted a final judgment.

"Although neither party has questioned the finality of the trial court's judgment in this case, jurisdictional matters, such as the question whether an appeal is supported by a final judgment, are of such importance that this court takes notice of them ex mero motu. See Wilson v. Glasheen, 801 So.2d 848 (Ala. Civ. App. 2001) ; Nunn v. Baker, 518 So.2d 711 (Ala. 1987). A final judgment is one that completely adjudicates all matters in controversy between all the parties. See McCollough v. Bell, 611 So.2d 383 (Ala. Civ. App. 1992)."

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002).

The trial court's February 2018 order did not resolve all matters in controversy between all the parties. When the Association filed its notice of appeal to this court, its claims against 2325 Morris Avenue, LLC, and Hannon Group, Inc., and 2325 Morris Avenue's counterclaim against the Association remained pending in the trial court. Thus, the trial court's February 2018 order was not a final judgment.

It is necessary to note, however, that the trial court's order contains two distinct elements: a finding of contempt against the Association and an award of an attorney's lien to Hirschfield. Our caselaw has indicated that contempt findings are immediately appealable under certain circumstances, notwithstanding the existence of additional issues to be resolved by the trial court. In McCarron v. McCarron, 171 So.3d 22, 27 (Ala. Civ. App. 2015), this court adopted the holding of the Ohio Supreme Court in The Docks Venture, L.L.C. v. Dashing Pacific Group, Ltd., 141 Ohio St. 3d 107, 22 N.E.3d 1035 (2014). In The Docks Venture, L.L.C., the Ohio Supreme Court held, in relevant part, that

"a court order finding a party in contempt and imposing a sentence conditioned on the failure to purge is a final, appealable order on the issue whether the party is in contempt of court. We further recognize that a contemnor may have an additional appeal on the question whether the purge conditions have been met following execution of sentence on the failure to purge."

141 Ohio St. 3d at 112, 22 N.E.3d at 1040. That holding was based on the court's recognition that "it is inherently unfair to force a party found in contempt to either comply with a potentially illegal or improper contempt order or submit to a sanction in an effort to obtain appellate review of the order the party seeks to challenge." The Docks Venture, L.L.C., 141 Ohio St. 3d at 111, 22 N.E.3d at 1039.

In this case, the trial court's contempt finding did not impose any sanctions or purge requirements on the Association. It simply determined that the Association was in contempt of its January 11, 2018, order for failing to pay Hirschfield $3,000. Thus the concerns expressed in McCarron and The Docks Venture, L.L.C., regarding the unfairness forced on contemnors by requiring them to choose between compliance and sanction are absent here. In fact, the trial court's February 2018 order does not expressly direct the Association to do anything. In light of that distinction, we see no basis to view the trial court's contempt finding in this case as being immediately appealable.

We now consider whether the trial court's award of an attorney's lien to Hirschfield was immediately appealable, notwithstanding the fact that the Association's claims against 2325 Morris Avenue, LLC, and Hannon Group, Inc., and 2325 Morris Avenue's counterclaim against the Association remained pending at the time of the award. In its appellate brief, the Association contends, as it did in the trial court, that the trial court's award is erroneous because it was "premature," citing as support CSX Transportation, Inc. v. Wettermark, 644 So.2d 969 (Ala. Civ. App. 1994). In relevant part, CSX Transportation, Inc., held: "[W]hen an attorney has a lien in an action, it cannot be enforced unless the action is prosecuted to judgment." Id. at 970. In other words, the existence of evidence that would otherwise establish an attorney's entitlement to a lien against a judgment is inconsequential if no judgment is ultimately entered to which the lien may attach. See Locke v. Barranco, 267 Ala. 370, 372, 102 So.2d 2, 4 (1958) ("Even though the [the precursor to § 34-3-61 ] gives a lien upon a suit for money the enforcement of the lien presupposes the following through of said suit to a final judgment or decree.").

However, the principle articulated in CSX Transportation, Inc., does not suggest that an appellate court should, by way of appeal, overturn a trial court's determination of the amount of a potential attorney's lien that is reached before entry of the trial court's judgment in the action forming the basis of the lien. Indeed, it counsels against doing so, because the predicate judgment may never be entered, thereby precluding attachment of the lien. See Locke, 267 Ala. at 372, 102 So.2d at 4 ("In the instant case there is no 'suit' upon which a lien can attach. Rather than prosecuting the contest to conclusion in order to perfect the attorney's lien, if any there might have been, ... the suit was dismissed. There is, therefore, no 'suit' upon which a lien could attach."); and CSX Transp., Inc., 644 So.2d at 971 ("Furthermore, where the action was dismissed, there is nothing upon which a lien could attach.").

In light of the foregoing, we express no opinion regarding the propriety of the trial court's contempt determination or its determination that Hirschfield is entitled to an attorney's lien in the amount of $7,400 at this time. The Association's claims against 2325 Morris Avenue, LLC, and Hannon Group, Inc., and 2325 Morris Avenue's counterclaim against the Association are still pending in the trial court. The trial court's February 2018 order is, therefore, not a final judgment, and we have been presented with no basis to review the determinations included therein in this appeal. The Association can raise those issues in an appeal taken from a final judgment entered by the trial court, if the Association so chooses. For that reason, we also decline to construe the Association's notice of appeal as a petition for the writ of mandamus challenging the propriety of the determinations set out in the trial court's February 2018 order. See Ex parte Smith, 196 So.3d 284, 285 (Ala. Civ. App. 2015) ("Although a petition for a writ of mandamus is a proper vehicle for appellate review of an interlocutory [order], the writ will not issue if an appeal after the entry of a final judgment would provide an adequate remedy for the petitioner."). Accordingly, the Association's appeal is due to be dismissed.

APPEAL DISMISSED.

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

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

      2325 Morris Avenue, LLC, and Hannon Group, Inc., filed a response to the Association's appellate brief in which they stated: "(1) the record below speaks for itself; and (2) [we] have no objection to the relief sought by the [Association]."

      The Association's failure to cite relevant legal authority on the question of Hirschfield's intervention extends to the issue whether the circumstances presented here fall within the category of cases summarized in Harlow. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996).

      We note that this court has viewed orders of this nature in slightly different ways in the past, depending on the circumstances presented. In T.L.D. v. C.G., 849 So.2d 200, 206 (Ala. Civ. App. 2002), we indicated that a contempt determination that fails to include a sanction or purge requirement is "incomplete" and "ineffective." But see T.L.D., 849 So.2d at 208 (Murdock, J., concurring in the result in part and dissenting in part)("[I]f a trial court has the discretion to determine whether to even hold a party in contempt, it is only logical that it has the discretion to take the lesser action of holding a party in contempt but abating the imposition of a penalty for that contempt."); and Ward v. Cranford, 169 So.3d 1054, 1056-57 (Ala. Civ. App. 2014) ("[T]he trial court has the inherent power to enforce its judgment by any legal means, up to and including the adjudication of a recalcitrant party as a contemnor."). In Cheek v. Dyess, 1 So.3d 1025, 1031 (Ala. Civ. App. 2007), we decided that, to the extent a contempt determination is erroneous, such error is harmless when no sanctions are imposed. For reasons explained infra, we do not decide how the trial court's February 2018 order should be viewed in this case.

      We do not wish to be misunderstood as holding that a judgment of dismissal entered upon a settlement between an attorney's former client and the other parties to an action cannot form the basis for an attorney's lien under the appropriate circumstances, nor do we wish to be misunderstood as holding that an attorney is unconditionally entitled to conclusively prosecute his or her former client's interests in an underlying action to protect his or her fee, even if a settlement is reached between the former client and its adversaries. See generally Harlow, 813 So.2d at 879.