text:
    Zepporiah EDMONDS v. DEPARTMENT OF PUBLIC WORKS
    Zepporiah Edmonds v. Department of Public Works
    Zepporiah Edmonds v. Department of Public Works
    Zepporiah Edmonds v. Department of Public Works
    NO. 2018-CA-0203 NO. 2018-CA-0319 NO. 2018-CA-0320 NO. 2018-CA-0342
    Court of Appeal of Louisiana, Fourth Circuit.
    December 5, 2018
   Brett John Prendergast, ATTORNEY AT LAW, 4603 South Carrollton Avenue, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT

Elizabeth Robins, DEPUTY CITY ATTORNEY, Corwin M. St. Raymond, ASSISTANT CITY ATTORNEY, Sunni J. LeBeouf, CITY ATTORNEY, 1300 Perdido Street, Room 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods )

These consolidated appeals challenge various final decisions of the New Orleans Civil Service Commission, the review of which this Court possesses jurisdiction pursuant to La.Const. art. X, section 12. For the reasons that follow, we reverse the decision of the Civil Service Commission, and order that Ms. Edmonds be reinstated to her former position as Parking Administrator.

PROCEDURAL BACKGROUND

Zepporiah Edmonds was a long-time employee of the City of New Orleans ("the City") Department of Public Works ("DPW"). In 2006, Ms. Edmonds was promoted to the classified position of Parking Administrator, and held that position at all times relevant to the instant appeals. In September and October of 2015, Ms. Edmonds filed two appeals with the City's Civil Service Commission ("the Commission"). The first appeal was filed in response to a letter concerning a pre-termination hearing, and the second was filed in response to a notice of emergency suspension.

On January 11, 2016, Ms. Edmonds was terminated by DPW's Director, Colonel Mark Jernigan. DPW alleged four bases for her termination. However, these appeals concern only one basis, that being her alleged failure to cooperate with an investigation initiated by the City's Office of the Inspector General ("OIG"). Ms. Edmonds also appealed her termination to the Commission in February of 2016.

A hearing examiner for the Commission heard testimony over a period of nine (9) days between April 21, 2016, and March 13, 2017. On August 2, 2017, the hearing examiner rendered a written report concluding "that the DPW failed to prove by a preponderance of evidence that [Ms. Edmonds'] emergency suspension and termination were for cause."

On September 5, 2017, the Commission rendered its decision finding that Ms. Edmonds "did engage in misconduct" regarding the OIG investigation, but that "such misconduct did not warrant termination." However, the Commission found "[t]here was nothing in the record to assist the Commission in determining what an appropriate level of discipline would be in the matter now before us." The Commission therefore remanded the matter back to the hearing examiner to determine the appropriate level of discipline.

Upon remand, a hearing was conducted and the hearing examiner issued a report, describing the parties as having provided "no assistance whatsoever in determining what the appropriate level of discipline should be in accordance with the Commission's mandate." A review of the hearing transcript indicates that the parties did indeed simply rehash the merits of their cases, though DPW suggested a 166-day suspension would be appropriate, along with demotion. However, the examiner concluded that an appropriate penalty could be recommended based on the record and his personal experience, with reference to the New Orleans Police Department Penalty Matrix. The hearing examiner accordingly recommended a one-day suspension.

On November 16, 2017, the Commission rendered a 2-1 decision. The majority declined to follow the recommendation of the hearing examiner. However, the Commission agreed several mitigating factors existed, to wit: a lack of prior discipline during Ms. Edmond's thirty-two (32) year career at DPW; her prior cooperation with OIG investigations; her "serious personal illness;" and indications that she had been "overwhelmed" by her workload during the relevant period. Nonetheless, the Commission reaffirmed its position that Ms. Edmonds' engaged in "serious misconduct" and accordingly found "involuntary demotion to a lower classification" to be an appropriate penalty. The Commission ordered DPW to reinstate Ms. Edmonds to the position of Assistant Parking Administrator "at a step that would result in no greater than a $3,000/yr. reduction in salary." The Commission reasoned that such reduction would be equivalent to a sixty-day unpaid suspension. DPW was also instructed to remit all back pay and emoluments consistent with her reclassification dating back to January 11, 2016. The dissenting commissioner would have simply imposed a sixty-day unpaid suspension.

Both Ms. Edmonds and DPW have appealed the decisions of the Commission. Specifically, Ms. Edmonds seeks review of the Commission's September 5, 2017 decision finding she engaged in misconduct warranting discipline with respect to the OIG investigation, arguing the Commission "manifestly erred" in making several findings. She further appeals her demotion, arguing such discipline is not commensurate with the conduct in question. DPW also appeals the Commission's decision regarding Ms. Edmonds' discipline, suggesting that its decision to terminate was indeed warranted. Ms. Edmonds' also appeals the Commission's denials of her motions to reconsider its decisions.

FACTUAL BACKGROUND

The OIG investigation in question commenced in 2014, a time at which the OIG was conducting a number of investigations into the Parking Division. In summary, the OIG sought to determine whether certain Parking Control Officers ("PCOs") had issued citations to patrons and employees of hotels in retaliation against those hotels after being asked to leave the establishments for loitering. OIG Investigator Eddie Hernandez first met with Ms. Edmonds on August 11, 2014. Ms. Edmonds and Mr. Hernandez had differing accounts of exactly what occurred during this initial meeting. It is unclear exactly what Mr. Hernandez requested at that time because he did not put anything into a formal written document. The Commission's September 5, 2017 ruling even stated that it was "surprised that Mr. Hernandez did not make his original request for information in writing." Ms. Edmonds did testify that Mr. Hernandez "scribbled some stuff on the back of a piece of paper" that did not concern the retaliatory actions of the PCOs, and it is not clear if the list was given to her or retained by Mr. Hernandez. She also stated "[h]e couldn't even find the paper. That's why he sent me an email[,]" referring to a December 18, 2014 e-mail requesting she send a copy of the list of items he requested. Mr. Hernandez confirmed this during his testimony. Mr. Hernandez also testified that he asked his supervisor whether he needed to type anything up for the meeting and was told that it was not necessary. Apparently, as a result of Ms. Edmonds' perceived lack of cooperation, the OIG has instituted a "Zepporiah Rule" now requiring all requests be put in writing for record purposes.

The Commission was presented with texts exchanged between Ms. Edmonds and Mr. Hernandez, specifically one sent to Ms. Edmonds on September 17, 2014, asking if "the items" were ready to be picked up. Ms. Edmonds responded with a time at which Mr. Hernandez could stop by the office, but she was unable to fulfill the commitment because she was at Tulane Hospital for an unspecified reason. Communications continued into November, when Ms. Edmonds indicated her absence from work "until further notice" due to an illness. She also conveyed her understanding that Mr. Hernandez was working with Sherida Emery in her absence. Mr. Hernandez replied that he had contacted Ms. Emery, but that Ms. Emery had not responded. Ms. Edmonds responded that she was chagrined at her office's lack of response, but added that Ms. Emery was "overwhelmed" and "working triple duty which is causing her to be pulled in many different directions."

Ms. Emery testified that she worked to fulfill Mr. Hernandez's requests while Ms. Edmonds' dealt with her illness, though she did not possess the same authority as Ms. Edmonds and therefore was unable to make a request of Xerox for the records in question. As a result, she contacted Xerox and obtained contact information for an individual named Brett Peze, who could provide Mr. Hernandez with the information he needed. Later in the hearings, Richard Boseman, Administrator for the Hearing Center and Parking Administrator, testified that he was familiar with the capabilities of the Xerox system used by DPW, and that any reports such as that requested by Mr. Hernandez would need to be requested directly from Xerox.

The Commission also reviewed several other e-mails. The first, the e-mail from Mr. Hernandez on December 18, 2014, requested Ms. Edmonds provide "a copy [of] the list of items that I requested that we discussed earlier this year." The Commission interpreted the e-mail to suggest that Mr. Hernandez did not recall what information he had initially requested in the August, 2014 meeting. In the second e-mail, Ms. Edmonds contacted Mr. Hernandez again on February 13, 2015, responding to his February 9, 2015 follow-up to an e-mail he had sent earlier that year. The Commission described the latter e-mail, sent January 12, 2015, as "far more indicative of the types of inquiries the Commission has reviewed as part of an OIG investigation." She apologized for the delay, indicating a misunderstanding on her part, as she believed an answer had been provided earlier. She also indicated that she was in the midst of organizing for the upcoming Mardi Gras holiday, yet she provided written answers to the numerous questions posed by Mr. Hernandez. Her e-mail indicated that the Parking Division was transitioning from Xerox to Duncan Solutions as its vendor, and confirmed that an individual named Brett Peze would be the appropriate contact person for tickets issued prior to the transition. Ms. Edmonds added in her response her understanding that "[y]ou [Mr. Hernandez] agreed to contact Mr. Peze directly." Notably, she made this statement in response to his question "Is Brett Peze the best person for me to speak with concerning the tickets [prior to DPW's transition from Xerox to Duncan]?" She also explained that when the Parking Division used Xerox, a specific request had to be made to "the Project Manager" for reports indicating which tickets were written in a particular geographic area. She also informed Mr. Hernandez that Xerox could not provide GPS data, nor did the phones provided to PCOs have GPS functionality at the relevant time.

Mr. Hernandez did contact Mr. Peze at Xerox, who indicated that the data could indeed be provided, but that no one from the Parking Department had ever made such a request. By the time the OIG made its own request, on March 25, 2015, Mr. Hernandez testified it was his understanding that the information had been transferred to Duncan Solutions and would be prohibitively expensive for Xerox to recreate. Howard Schwartz, the Assistant Inspector General for Investigations, testified that by the time OIG contacted Xerox itself, Xerox was still capable of producing what was needed, but that "it wasn't worth putting the resources in" given the time and cost. He further testified that "[w]e could have gotten those records from where they were archived [at Duncan Solutions] at a later date ... [but] I didn't think it was worth the resources to do it at that time." When asked about the accompanying costs, Mr. Schwartz stated, "I don't remember the numbers, but to me it was not worth going to get those at a year, year and a half later."

Mr. Hernandez testified that Ms. Edmonds was generally cooperative in his investigations aside from the investigation into retaliatory tickets issued by PCOs. He was of the understanding that DPW "didn't have the database" with the information he required, but that Xerox did. He stated there would be a "large expense" associated with recreating the information at Xerox, as the information had been transferred to Duncan. He suggested that Ms. Edmonds had been intentionally uncooperative, noting "five to six months" of delay between their initial meeting and when he received some responsive information.

Ms. Edmonds testified over several days during the hearings. In pertinent part, she testified it was never her "charge" to contact Mr. Peze at Xerox, referring to the e-mail indicating that Mr. Hernandez had agreed to do so. She also testified to having told Mr. Hernandez that her office lacked the resources and staff to manually search for the ticket information because the office was "in transition" with its vendors. She stated her office could not personally access Xerox's data as a result of the transition, and that to obtain it required "an additional cost." She also explained that even though DPW extended its contract with Xerox through the end of August 2014, the extension did not permit DPW to go in and "operate their system." She explained the records were only provided in a "read only" format.

The OIG released its report on June 17, 2015, and relative to PCO misconduct, indicated that it was unable to determine whether retaliatory tickets had been issued due to lack of required documentation. Colonel Mark Jernigan, Director of the DPW and the individual who terminated Ms. Edmonds, testified that he "relied on the OIG report" as the basis for her termination.

The Commission recognized that it would be "unreasonable" to expect an immediate response from Ms. Edmonds regarding the inquiry, but also noted that Mr. Hernandez's "polite inquiries" did not sufficiently prompt Ms. Edmonds' "focus on production." The Commission did acknowledge Ms. Edmonds' busy work schedule and illness contributed to the delays, but that those issues "did not relieve the DPW or the Parking Division of the responsibility to respond to the various requests for information." To the extent Ms. Edmonds' delegated authority in her absence, the Commission took the position that she "did a poor job of following through on this delegation and did not closely monitor Ms. Emery's response."

The Commission found that Ms. Edmonds should have started the process of either manually gathering the required information or contacting Xerox in August 2014. It expressly stated that her failure to do so was not "intentional or purposefully designed to thwart the OIG's investigation[,]" but it nonetheless constituted a "failure to take appropriate action" and "hindered the OIG's investigation into PCO misconduct."

STANDARD OF REVIEW

The appointing authority in this matter, DPW, required cause to discipline Ms. Edmonds for the conduct in question. La.Const. art. X, section 8 (A). "A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part.[ ] The burden of proof on appeal, as to the facts, shall be on the appointing authority." Id.

This Court, in Waguespack v. Dep't of Police , 2012-1691, pp. 3-4 (La.App. 4 Cir. 6/26/13), 119 So.3d 976, 977-78, discussed the appellate standard of review applicable to a decision of the Commission:

The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, § 12 (B); Cure, 07-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Civil Service Commission determination unless it is arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the Civil Service Commission is "arbitrary or capricious" if there is no rational basis for the action taken by the Civil Service Commission. Cure, 07-0166, p. 2, 964 So.2d at 1095. The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure, 07-0166, p. 2, 964 So.2d [at] 1094, citing Marziale [v. Department of Police], 06-0459, at p. 10 [ (La.App. 4 Cir. 11/8/06) ], 944 So.2d [760] at 767.

Furthermore, this Court stated in Stokes v. Code Enf't & Hearing Bureau , 2013-0203, p. 4 (La.App. 4 Cir. 10/2/13), 126 So.3d 590, 593 :

When there is a conflict in testimony, reasonable evaluations of credibility and reasonable evaluations of fact should not be disturbed on review, i.e. when there are two permissible views of evidence, the fact finder's choice cannot be manifestly erroneous. Saacks v. City of New Orleans, 95-2074 (La.App. 4 Cir. 11/27/96), 687 So.2d 432, 440.

ANALYSIS

This case is different from many of the cases that come before this Court on appeal from a decision of the Commission as a result of Ms. Edmonds' high rank within the DPW as Parking Administrator, below only Colonel Jernigan, he being the Director of the DPW. Thus, as such a high-ranking official, we are especially mindful of Ms. Edmonds' obligation to ensure the "efficient operation" of her division within the DPW. Had PCOs retaliated against local businesses, the DPW's efficient operation would surely be affected. The question for this court is whether Ms. Edmonds herself committed an infraction related to such incidents, and whether good cause existed based upon the proven infraction to sanction her.

There is no doubt that Ms. Edmonds, as the head of the Parking Division, was obligated to cooperate with the investigation conducted by the OIG. "All officers and employees of covered agencies shall extend full cooperation and all reasonable assistance to the inspector general." La.R.S. 49:220.24(E).

In Honore' v. Dep't of Pub. Works , 2014-0986, pp. 16-17 (La.App. 4 Cir. 10/29/15), 178 So.3d 1120, 1131, this Court discussed termination as follows:

Termination from permanent employment is the most extreme form of disciplinary action that can be taken against a city employee. Hills v. New Orleans City Council, 98-1101, p. 6 (La.App. 4 Cir. 12/09/98), 725 So.2d 55, 58. Cause that may justify some other lesser form of disciplinary action may not necessarily justify a dismissal. Dept. of Public Safety and Corrections, Office of State Police v. Mensman, 95-1950, p. 4 (La.4/8/96), 671 So.2d 319, 321. In reviewing the disciplinary action taken by the Appointing Authority, "the Commission must consider whether the punishment was commensurate with the proven infractions under the circumstances." Id., 95-1950, p. 5, 671 So.2d at 322. The nature of the offense in question is one factor to be considered by the Commission when determining whether the punishment imposed is commensurate with the offense. Other factors to be considered include the employee's work ethic, prior disciplinary records, job evaluations, and any grievances filed by the employee. See Hills, 98-1101, p. 6, 725 So.2d at 58.

Using Honore as a guide, we agree with the Commission's finding that termination was not appropriate under the circumstances. However, we find that the Commission manifestly erred in finding that DPW proved by a preponderance of the evidence that Ms. Edmonds engaged in any activity or conduct detrimental to the efficient operation of DPW. Accordingly, we additionally find the imposition of any discipline unjustified.

The Nature of the Alleged Offense

It is undisputed that the OIG did not obtain the documentation it needed to determine whether PCOs had acted in a retaliatory fashion. Much as Ms. Edmonds and her division had an obligation to cooperate with the OIG, OIG was duty bound to "do all things necessary to carry out [its] functions." La.R.S. 49:220.24(M). We note that Mr. Hernandez did not formally put any request in writing until months after the initial August meeting. While Ms. Edmonds had responded in a cooperative fashion after August, there appeared to be confusion regarding the exact information being requested, as Mr. Hernandez contacted Ms. Edmonds again in December, 2014 for "a copy [of] the list of items that I requested that we discussed earlier this year." Furthermore, during the period between the initial August 11, 2014 meeting and January 12, 2015 email, Ms. Edmonds was undergoing treatment for her illness, and had referred Mr. Hernandez to Ms. Emery, to whom she had delegated certain tasks in her absence. Ms. Emery provided Mr. Hernandez with the contact information for Brett Peze at Xerox, and she was of the understanding that Mr. Hernandez would be the one to contact Mr. Peze.

Upon receiving a follow-up e-mail on February 9, 2015, Ms. Edmonds responded to Mr. Hernandez's multiple inquiries, indicating, in writing, her understanding that he would contact Xerox himself. Mr. Hernandez apparently had no objection to this statement, only emailing Ms. Edmonds again on February 26, 2015, stating he needed "those reports we discussed" by March 6, 2015, in order to complete his own report. Despite this March 6th deadline, Mr. Hernandez did not contact Xerox until after that date.

Indeed, the OIG itself had the ability to obtain the documentation in question. The Commission instead suggested that as of the August 11, 2014 meeting, there were only two options, both of which fell on Ms. Edmonds' shoulders, and both of which presumed that Mr. Hernandez clearly articulated both his requests and his expectations. First, she could have instructed her staff to manually look through the records. However, the Commission's report stated it "does not question" Ms. Edmonds' statements that such a task "would have consumed most, if not all, of [her] administrative resources." The DPW was indeed required to cooperate with OIG's investigation; however, the law also states that such cooperation extends to "reasonable assistance." We do not find it reasonable to expect that Ms. Edmonds would use "all" of her administrative resources for a single task related to a single OIG investigation, considering that several investigations were ongoing, and especially given the day-to-day obligations of the position and additional demands posed by the Division's transition from Xerox to Duncan. The second option put forward by the Commission would have required Ms. Edmonds to contact Xerox herself. While Ms. Edmonds could have done so, the record indicated, at a minimum, confusion regarding who would contact Xerox. Specifically, Mr. Hernandez failed to put his requests into a formal written document. Though not required-and notwithstanding the fact that he was specifically told such action was unnecessary by a supervisor-had such a document been provided, much of the ensuing confusion could have been mitigated or altogether eliminated.

Indeed, a third option existed. Ms. Edmonds' understanding, evidenced by her February 13, 2015 email, was that Mr. Hernandez would contact Xerox himself. Ms. Emery testified that as a result of Ms. Edmonds' absence from work during her illness, she took on the task of providing the relevant information to Mr. Hernandez, and she provided the contact information for Brett Peze at Xerox. Mr. Hernandez had the contact information for months, yet took no action to follow through with it. Even after receiving Ms. Edmonds' email in February which explicitly indicated that she had no intention of contacting Xerox because he had agreed to do so, Mr. Hernandez voiced no concern. Instead, he followed up with another email, stating he was "going to need those reports that we discussed no later than March 6, 2015." At a minimum, the record reflects a complete misunderstanding between the parties. While Mr. Hernandez was persistent in communicating his need, in very general terms for "items" or "reports," only Ms. Edmonds made it explicit, in writing, that she understood Mr. Hernandez would contact Xerox for the relevant information.

Other Factors Relevant to Discipline

We must not only consider the nature of the offense, but also other mitigating factors, some of which the Commission accounted. Honore also suggests that "the employee's work ethic, prior disciplinary records, job evaluations, and any grievances filed by the employee" be taken into consideration. On these counts, the Commission found no issues. Indeed, the Commission cited Ms. Edmonds' length of service with "overwhelmingly positive performance evaluations" without prior discipline as mitigating factors, as well as her previous cooperation with other OIG investigations. Unlike DPW, we do find these to be relevant mitigating factors. DPW suggests Ms. Edmonds' conduct called into question her competence and ability to fulfill her duties, while neglecting pertinent mitigating factors, to wit: Ms. Edmonds' chronic illness for which she was undergoing treatment at the relevant time, which caused her to miss significant time at work during the fall of 2014, at the very time Mr. Hernandez was conducting his investigation; the timing of the investigation during the Parking Division's transition from one ticket processing vendor to another, which limited the Parking Division's access to pertinent information; and OIG's failure to put its requests into writing from the outset of the investigation. DPW also suggests that the offense in question was so grave as to "overshadow" her otherwise unblemished thirty-two (32) year career of service with the DPW. However, this Court finds it difficult to reconcile such a statement with OIG's position that it was not "worth it" to obtain the documents in question itself despite an ability to do so, especially given Colonel Jernigan's seeming reliance on the report as the only basis for Ms. Edmonds' termination. The Commission itself concluded that "the OIG's decision not to expend additional resources to obtain the requested information suggests that the OIG did not view the information as vital to its investigation."

Termination

Considering the totality of the circumstances, this Court does not conclude that the Commission abused its discretion in declining to uphold the DPW's imposition of the "most extreme" form of discipline available. Indeed, termination has often been upheld in cases involving intentional and egregious conduct. Krupp v. Dep't of Fire , 2007-1260, pp. 10-11 (La.App. 4 Cir. 11/19/08), 995 So.2d 686, 693 (affirming termination for an employee who was untruthful and attempted to alter a positive drug test evidencing his recent use of cocaine); Williams v. Sewerage & Water Bd. , 2004-0025, p. 9 (La.App. 4 Cir. 5/19/04), 876 So.2d 117, 122 (affirming termination for employee who struck another in violation of appointing authority's zero-tolerance policy regarding workplace violence); Reynolds v. Dep't of Prop. Mgmt. , 577 So.2d 1026, 1027 (La.App. 4 Cir. 1991) (affirming termination for employee who "absented himself" from work for an entire week without notifying his supervisor, despite having been previously warned for similar conduct).

Other Discipline

We next turn to whether the Commission abused its discretion by demoting Ms. Edmonds to Assistant Parking Administrator with its resulting reduction in salary. We do conclude that the Commission abused its discretion in assessing any discipline at all for the very reasons already discussed. As stated in Honore , supra , discipline is justified when one engages in particular conduct detrimental to the appointing authority's efficient operation. The Commission's finding that Ms. Edmonds could have directed "all" of her administrative resources to the sole task of manually searching for all parking tickets goes beyond the "reasonable assistance" requirement of the law. Beyond a manual search, only Xerox could have provided the relevant information, and Ms. Edmonds gave Mr. Hernandez Xerox's contact information months before he ever attempted making contact, despite explicitly expressing her understanding that he would do so. At the time he did make contact, the information was still available, though at a cost that was never specified.

In demoting Ms. Edmonds, the Commission reasoned that she would "have less responsibilities [sic] and be better able to focus on specific tasks." We do not agree with the Commission's assessment that this matter concerned a lack of focus. The statement itself relies on the premise that no misunderstanding existed between Ms. Edmonds and Mr. Hernandez, and that she simply did not get to the task of providing him with information. Based on our analysis of the facts, we do not find that to be the case. Ms. Edmonds held her position as Parking Administrator for eight (8) years without incident prior to the events giving rise this appeal, and the record does not indicate Ms. Edmonds is unable or unwilling to perform her duties as Administrator.

Accordingly, we find that the Commission correctly reversed the DPW's termination of Ms. Edmonds, but abused its discretion in assessing discipline in the form of a demotion. The Commission manifestly erred in finding that Ms. Edmonds' engaged in any conduct that was detrimental to the efficient operation of the DPW.

CONCLUSION

For the foregoing reasons, we reverse the Commission's ruling demoting Ms. Edmonds, and order that Ms. Edmonds be reinstated to her position as Parking Administrator, with all compensation and benefits consistent therewith, retroactive to the date of her termination.

REVERSED

LOBRANO, J., CONCURS IN THE RESULT AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN THE RESULT AND ASSIGNS REASONS.

I respectfully concur. I agree with the majority's conclusion that the Civil Service Commission ("CSC") abused its discretion in disciplining Zepporiah Edmonds by imposing a demotion and that Edmonds should be reinstated to her former position as parking administrator with all back pay and emoluments. I find, however, that the CSC manifestly erred and was clearly wrong in finding that the Department of Public Works ("DPW") satisfied its burden of proving that legal cause existed for Edmonds' discipline.

An employer cannot subject a permanent classified civil service employee to disciplinary action except for legal cause expressed in writing. La. Const. Art. X, § 8 (A). To establish that it had legal cause, the appointing authority had the burden of proving two factors: (i) that the complained of conduct occurred, and (ii) that the complained of conduct impaired the efficiency of the department. Abbott v. New Orleans Police Dep't , 2014-0993, p. 9 (La. App. 4 Cir. 2/11/15), 165 So.3d 191, 198 (citations omitted). The decision of the CSC "is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review." Cure v. Dep't of Police , 2007-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094 (citing La. Const. art. X, § 12 ). "In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion." Id. , 2007-0166, p. 2, 964 So.2d at 1094-95.

The record reflects that the hearing examiner, after hearing evidence and taking testimony in this matter, concluded and recommended to the CSC that DPW failed to prove legal cause for discipline by a preponderance of the evidence. The CSC, however, rejected the hearing examiner's recommendation. In his report, the hearing examiner noted OIG investigator Eduardo Hernandez's testimony that he merely scribbled notes on a scrap of paper, which he did not retain, and could not recall with particularity what documents he had requested of Edmonds. Thereafter, Edmonds took extended sick leave. Edmonds' supervisor, DPW Director, Col. Jernigan specifically testified that Edmonds was not allowed to work from home or direct other employees while out on sick leave. Edmonds, nevertheless, assigned another employee, Sherida Emery, to assist Hernandez in her absence. Emery told Hernandez that she could not provide him with the disputed documents and provided Hernandez with the names and contact information for Xerox employees to assist him.

I cannot reconcile this testimony with the CSC's conclusion that Edmonds "did fail to fully and expediently cooperate with Mr. Hernandez regarding the OIG's investigation." The CSC's finding is manifestly erroneous.

      Notably, DPW alleged several bases for Ms. Edmonds' termination; however, the Commission found it had only met its burden with respect to her failure to cooperate with the particular OIG investigation.

      DPW did indicate that by participating in the hearing it was not waiving its right to appeal the Commission's reversal of Ms. Edmonds' termination.

      "No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing."

      Subsection (B) of this section provides:
      Each city commission established by Part I of this Article shall have the exclusive power and authority to hear and decide all removal and disciplinary cases, with subpoena power and power to administer oaths. It may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses. The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed with the commission within thirty calendar days after its decision becomes final.

      The Commission's first report also cited Ms. Edmonds' apparent lack of awareness that she could be disciplined for her conduct as a mitigating factor. We agree with DPW that such a consideration is of limited, if any, value.


source: Caselaw Access Project

license: Public Domain

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    Supreme Court of Mississippi.
    Filed: October 23, 2018 Closed: January 24, 2019
    Certiorari - Denied


text:
    Roger Dale LATHAM v. Terry W. JOHNSON
    2015-CT-00722-COA
    Supreme Court of Mississippi.
    Filed: October 23, 2018 Closed: January 24, 2019
    Certiorari - Denied


text:
    Welford Lee MCCARTY v. STATE of Mississippi
    2017-CT-00414-COA
    Supreme Court of Mississippi.
    Filed: October 29, 2018 Closed: January 24, 2019
    Certiorari - Denied


text:
    Gary Dewayne ALLEN v. STATE of Mississippi
    2016-CT-01706-COA
    Supreme Court of Mississippi.
    Filed: October 30, 2018 Closed: January 24, 2019
    Certiorari - Denied


text:
    Justin PETERSON v. STATE of Mississippi
    2017-CT-00148-COA
    Supreme Court of Mississippi.
    Filed: November 2, 2018 Closed: January 31, 2019
    Certiorari - Denied


text:
    V'Nell L. MISKELL v. STATE of Mississippi
    2017-CT-00136-COA
    Supreme Court of Mississippi.
    Filed: December 4, 2018 Closed: January 31, 2019
    Certiorari - Denied


text:
    Michael J. MALOUF v. Lisa EVANS
    2017-CT-00374-SCT
    Supreme Court of Mississippi.
    Filed: October 30, 2018 Closed: January 17, 2019
    Certiorari - Granted


text:
    Patrick Dantre FLUKER v. STATE of Mississippi
    2017-CT-00734-COA
    Supreme Court of Mississippi.
    Filed: October 16, 2018 Closed: January 10, 2019
    Certiorari - Denied


text:
    Michael DONALDSON v. STATE of Mississippi
    2016-CT-01207-COA
    Supreme Court of Mississippi.
    Filed: November 26, 2018 Closed: January 31, 2019
    Certiorari - Denied


text:
    Lori GRIFFIN v. STATE of Mississippi
    2014-CT-01335-COA
    Supreme Court of Mississippi.
    Filed: October 26, 2018 Closed: January 10, 2019
    Certiorari - Denied


text:
    Clarence LOVETT v. STATE of Mississippi
    2017-CT-00430-COA
    Supreme Court of Mississippi.
    Filed: November 14, 2018 Closed: January 10, 2019
    Certiorari - Dismissed


text:
    Julius Scott TURNER v. STATE of Mississippi
    2016-CT-00815-COA
    Supreme Court of Mississippi.
    Filed: November 9, 2018 Closed: January 24, 2019
    Certiorari - Denied


author: MENDHEIM, Justice.

text:
    BALDWIN MUTUAL INSURANCE COMPANY v. Gloria Mitchell MCCAIN
    1160093
    Supreme Court of Alabama.
    March 23, 2018
    Louis M. Calligas of Balch and Bingham LLP, Montgomery, for appellant.
    Earl P. Underwood, Jr., of Underwood & Riemer, P.C., Fairhope; Kenneth J. Riemer, of Underwood & Riemer, Mobile; and Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellee.
   MENDHEIM, Justice.

Baldwin Mutual Insurance Company ("Baldwin Mutual") appeals from an order of the Montgomery Circuit Court certifying for class treatment pursuant to Rule 23, Ala. R. Civ. P., an action filed against it by Gloria Mitchell McCain. We reverse and remand.

I. Facts

This is the second time this action has been before us. In Baldwin Mutual Insurance Co. v. McCain, 176 So.3d 1195 (Ala. 2015) (" Baldwin Mutual I"), we summarized the relevant facts as follows:

"At all relevant times, McCain owned a house in Montgomery upon which she held a homeowner's insurance policy issued by Baldwin Mutual. That policy provided that any covered property losses would be settled 'at actual cash value at the time of loss but not exceeding the amount necessary to repair or replace the damaged property.' The policy further explained 'actual cash value' as follows:
" 'Actual cash value is calculated as the amount it would cost to repair or replace covered property, at the time of loss or damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence. Actual cash value applies to valuation of covered property regardless of whether that property has sustained partial or total loss or damage.
" 'The actual cash value of the lost or damaged property may be significantly less than its replacement cost.'
"In July 2005, McCain's house was damaged as the result of a windstorm. She filed a claim with Baldwin Mutual, and Baldwin Mutual thereafter retained an independent adjuster to examine McCain's damaged property and to prepare an estimate to repair the damage. Baldwin Mutual paid McCain's claim in accordance with the estimate prepared by the adjuster. Pursuant to a work-authorization form signed by McCain, Baldwin Mutual paid the funds directly to McCain's contractor. In June 2006, McCain filed another claim after her house suffered damage as a result of a lightning strike. After the same adjuster prepared an estimate, Baldwin Mutual paid the new claim in accordance with the adjuster's estimate. The record contains no allegation or evidence indicating that McCain sought more money from Baldwin Mutual in connection with those claims or that she was unhappy in any way with the service provided by Baldwin Mutual on those claims before she initiated this lawsuit.
"On September 29, 2010, McCain filed a complaint against Baldwin Mutual. As subsequently amended, the complaint stated one claim of breach of contract and another claim generally asserting misrepresentation and suppression of material facts. The genesis of the claims is that Baldwin Mutual had wrongfully been reducing the amount paid on claims made on actual-cash-value policies inasmuch as its practice was to deduct some amount for depreciation not only of the damaged materials and the labor costs of initially installing those damaged materials (based on their condition prior to the covered damage and their expected life span), but also of the labor costs associated with the removal of the damaged materials. It is improper and impossible to depreciate those labor costs, McCain argues, because they had not previously been incurred at some defined time in the past; rather, they are being incurred at the time of the current repair. For example, with regard to McCain's July 2005 claim, Baldwin Mutual recognized that the cost of removing damaged roof shingles was $420; however, $63 in depreciation was deducted from that amount, and Baldwin Mutual paid only $357 for that job, what it considered to be the actual cash value. See generally Branch v. Farmers Ins. Co., 55 P.3d 1023, 1028 (Okla. 2002) (clarifying that under Oklahoma law 'labor costs to tear off an old roof are not included as a necessary part of the replacement costs of installing a new roof' and that 'the labor costs in debris removal may not be depreciated'). Noting that hundreds or thousands of Baldwin Mutual policyholders were likely negatively affected by Baldwin Mutual's practices in this regard, McCain also sought class-action certification of her claims...."

176 So.3d at 1195-96 (footnote omitted).

The trial court in Baldwin Mutual I certified a class based on McCain's claims, and Baldwin Mutual appealed the certification order. This Court reversed the trial court's certification order because "the class definition proposed by McCain in her brief submitted after the class-certification hearing was materially different from the class definition offered by McCain in her original complaint." 176 So.3d at 1199. We noted that the trial court failed to give "Baldwin Mutual the opportunity to oppose the certification of the proposed class at a hearing conducted for that purpose pursuant to § 6-5-641[, Ala. Code 1975]," 176 So.3d at 1199, and we pretermitted "consideration of the Rule 23 issues raised by Baldwin Mutual." 176 So.3d at 1198. We remanded the case for further proceedings.

Upon remand, and with leave from the trial court, McCain filed on October 11, 2015, a second amended complaint that retained the allegations in her first amended complaint and amended the definition of the proposed class. On October 20, 2015, Baldwin Mutual answered the second amended complaint. Following further discovery, McCain on April 28, 2016, filed a motion for class certification along with a supporting brief and exhibits. On May 5, 2016, with leave of the trial court, McCain filed her third amended complaint, which corrected an error in the class definition but otherwise retained the allegations of the second amended complaint.

On May 27, 2016, Baldwin Mutual filed a motion for a summary judgment. Baldwin Mutual contended that McCain's claims were barred by the doctrine of res judicata based on a final judgment entered by the Calhoun Circuit Court in Baldwin Mutual Insurance Co. v. Adair, CV-2011-000002 ("the Adair litigation"), which allegedly involved the same claims and same parties. See Baldwin Mut. Ins. Co. v. Adair, 181 So.3d 1033 (Ala. 2014) (addressing an appeal from an order modifying a preliminary injunction entered in the Adair litigation). On the same date, Baldwin Mutual filed a response in opposition to the motion for class certification, along with a brief and evidentiary submissions. In that brief, Baldwin Mutual argued that class certification should be denied because, it said, McCain failed to meet the requirements of a proper class representative, specifically that McCain could not "establish Rule 23(a) typicality and adequacy" because "McCain's breach of contract claim is subject to a unique defense-res judicata." On July 15, 2016, McCain filed responses to Baldwin Mutual's motion for a summary judgment and to its response in opposition to her motion for class certification. On July 21, 2016, the trial court held a hearing on the motion for class certification and the motion for a summary judgment.

On September 21, 2016, the trial court entered an order denying Baldwin Mutual's motion for a summary judgment. On October 18, 2016, the trial court entered an order certifying McCain's purported class pursuant to Rule 23(a) and Rule 23(b)(3). The order defined the class as follows:

"(1) All current and former Baldwin Mutual insureds;
"(2) who are citizens of the State of Alabama;
"(3) who in the six years preceding the Complaint suffered a covered loss to property situated within the State of Alabama;
"(4) where the damage estimate for such loss prepared by Baldwin Mutual or their adjusters did not include as a separate item cost for 'removal' of damaged building components, and/or depreciated the cost of labor for removal to a lesser amount;
"(5) where calculation of the loss was based on either replacement cost or actual cash value; and
"(6) where the payment for such loss was made to the insured or directly to a contractor."

Baldwin Mutual filed a timely appeal of the class-certification order pursuant to § 6-5-642, Ala. Code 1975.

II. Standard of Review

" 'This Court applies an abuse-of-discretion standard of review to a trial court's class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class....
" 'If the [plaintiffs] fail to meet the evidentiary burden as required by Rule 23, [Ala. R. Civ. P.,] then the order certifying the ... class[ ] constitutes an abuse of discretion by the trial court.... The [plaintiffs] must establish all of the criteria set forth in Rule 23(a), Ala. R. Civ. P., and one of the criteria set forth in Rule 23(b).' "

Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1218-19 (Ala. 2010) (quoting Smart Prof'l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245, 1248-49 (Ala. 2002) ).

III. Analysis

Baldwin Mutual presents several arguments as to why it believes the trial court erred in certifying McCain's class action. Its first argument is that McCain's underlying breach-of-contract claims are barred by the doctrine of res judicata because of the final judgment in the Adair litigation and that, therefore, the class-certification order must be reversed. Understanding this argument and McCain's response to it requires some background with regard to the Adair litigation.

As noted above, the Adair litigation also has been before this Court previously. In our opinion in Adair, we related the facts in that litigation, in part, as follows:

"On December 2, 2010, [Baldwin Mutual] filed an 'Application for Temporary Restraining Order, Motion for a Preliminary Injunction and Complaint for Declaratory Judgment' ('the complaint') in the Baldwin Circuit Court against 122 individuals who were insured under various insurance policies issued by [Baldwin Mutual] ('the insureds').[ ] According to the complaint, the insureds, through their legal counsel, had sent a letter dated November 12, 2010, to [Baldwin Mutual]. The November 2010 letter stated:
" 'On behalf of each of our clients listed on the attached, please know that we invoke the appraisal provision contained within the Baldwin Mutual policies issued to these insureds for each loss or claim suffered previously. We hereby identify Samantha Ronquille-Green as our appraiser, and insist that you identify your appraiser within the time specified in the policies [i.e., 20 days]. Obviously, we are only seeking appraisal of claims for which there is prior coverage.'
"The letter also requested that [Baldwin Mutual] provide the insureds' counsel with a copy of the policy file for each of the insureds, and the letter accused [Baldwin Mutual] of 'bad faith' as to its treatment of the insureds.
"According to [Baldwin Mutual's] complaint, the various insurance policies at issue provided that [Baldwin Mutual] or an insured could invoke an appraisal process if [Baldwin Mutual] and the insured could not reach an agreement as to the amount of compensation due the insured for a loss covered under the insured's policy. The appraisal process entailed [Baldwin Mutual] and the insured each choosing an appraiser to estimate the insured's loss, and the appraisers in turn choosing an umpire who would resolve differences in the loss estimates provided by the appraisers."

181 So.3d at 1034-35 (footnote omitted). Baldwin Mutual sought an injunction because it believed that the insureds had improperly invoked the appraisal process under their policies.

It is undisputed that McCain was one of the defendants in the Adair litigation. It is also undisputed that on March 16, 2011, the defendant insureds in the Adair litigation-including McCain-filed counterclaims alleging breach of contract against Baldwin Mutual. In the counterclaims, the insureds alleged that Baldwin Mutual had breached its policies with them "by failing or refusing to pay covered claims against the policy, in full." In McCain's counterclaim, she identified her "covered claims" at issue to be one in 2005 and one in 2006-the same insurance claims at issue in the present litigation. Indeed, in her opposition to Baldwin Mutual's summary-judgment motion in the present action, McCain conceded that her claim "was included in the Adair [litigation]."

On July 23, 2015, Baldwin Mutual filed a motion for a summary judgment in the Adair litigation in which it contended, among other things, that it was entitled to a judgment as a matter of law with regard to the insureds' breach-of-contract counterclaims. On September 23, 2015, the Calhoun Circuit Court granted Baldwin Mutual's summary-judgment motion and disposed of the Adair litigation. McCain did not appeal.

Baldwin Mutual contends that McCain's claims in the present action are subject to the defense of res judicata based on the September 23, 2015, summary judgment in the Adair litigation. We agree.

As this Court has stated:

"Two causes of action are the same for res judicata purposes when the following four elements are satisfied: '(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.' Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998). 'If those four elements are present, then any claim that was, or that could have been, adjudicated in the prior action is barred from further litigation.' Id. (citing Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala. 1990) )."

Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala. 2007).

The doctrine of res judicata applies in class-action litigation. See Alabama Dep't of Transp. v. Price, 854 So.2d 59, 63 (Ala. 2003) (citing Providian Nat'l Bank v. Pritchett, 846 So.2d 1072 (Ala. 2002) (plurality opinion), for the proposition "that a class-action settlement can serve as a prior judgment on the merits for res judicata purposes"). Moreover, class certification is inappropriate where the purported class representative's claims are barred by the doctrine of res judicata. See note 3, supra; see also, e.g., Zenith Labs., Inc. v. Carter-Wallace, Inc., 530 F.2d 508, 512 (3d Cir. 1976) (affirming a district court's denial of class certification because the named plaintiff was "an improper class representative" in that the defendant could "assert defenses against [the named plaintiff] which would not be applicable to the class as a whole, such as res judicata based on the disposition of Zenith's counterclaims in the earlier suit. Since these unique defenses could conceivably become the focus of the entire litigation and divert much of Zenith's attention from the suit as a whole, the remaining members of the class could be severely disadvantaged by Zenith's representation."); Robinson v. First Nat'l City Bank, 482 F.Supp. 92, 100 (S.D. N.Y. 1979) (finding that "[i]t is clear that ... the named plaintiffs whose individual claims are barred [by res judicata] are neither typical nor adequate representatives of the remaining class"); and Wai Hoe Liew v. Cohen & Slamowitz, LLP, 265 F.Supp.3d 260, 279 (E.D.N.Y. 2017) ("Ms. Atwood would not be a proper class representative because her individual and class claims are barred by res judicata or claim preclusion.").

As we noted above, it is undisputed that the same parties were involved in both the present action and the Adair litigation, that McCain's counterclaims in the Adair litigation were the same as her claims in the present action, and that the Adair litigation ended with a judgment on the merits against the insureds-including McCain-and in favor of Baldwin Mutual. Thus, the only remaining element of res judicata, and the one McCain purports to attack, is whether the Calhoun Circuit Court had subject-matter jurisdiction over the Adair litigation. Before addressing that argument, however, we must address a procedural argument McCain raises, namely that this Court should not consider Baldwin Mutual's res judicata argument in this appeal.

McCain notes that Baldwin Mutual raised its res judicata defense in its motion for a summary judgment in the present action. McCain further notes that the trial court denied Baldwin's Mutual's summary-judgment motion, and, McCain observes, " '[an] order denying summary judgment is interlocutory and non-appealable.' Alfa Mut. Ins. Co. v. Bone, 13 So.3d 369, 374 (Ala. 2009)." McCain's brief, p. 15. Thus, McCain contends, Baldwin Mutual should not be permitted to raise in this appeal from a class-certification order what Baldwin Mutual could not raise at this time by way of an appeal from the denial of its motion for a summary judgment.

We acknowledge that the situation is procedurally unusual, but the fact remains that an order certifying a class is an appealable order and that Baldwin Mutual has raised res judicata as a defense to class certification. We cannot allow our evaluation of the merits of an appealable order to be stunted by the fact that those merits might not be properly before us in the absence of such an order, particularly when the record is otherwise adequate for purposes of our review. Specifically, we cannot be deterred from considering whether the doctrine of res judicata affects the certification of McCain's purported class simply because, absent an order certifying that class, no appeal would be available to consider whether the trial court erred by rejecting Baldwin's Mutual's argument that res judicata entitled it to a summary judgment as to McCain's claims. Accordingly, we reject McCain's procedural argument.

McCain's other argument is that the doctrine of res judicata does not apply to preclude class certification because, she says, the Calhoun Circuit Court lacked subject-matter jurisdiction over McCain's claims in the Adair litigation. This is so, McCain argues, because the complaint in the present action was filed before the complaint in the Adair litigation. McCain contends that, because the present action was filed first, the Montgomery Circuit Court had exclusive jurisdiction over her claims and, therefore, any judgment in the Adair litigation disposing of her claims was void. In support of this contention, McCain cites cases from this Court in which we have stated: " 'It is uniformly held that where two or more courts have concurrent jurisdiction, the one which first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments or decrees.' " Grimes v. Liberty Nat'l Life Ins. Co., 726 So.2d 615, 617 (Ala. 1998) (quoting Ex parte Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938) ). See, e.g., Attenta, Inc. v. Calhoun, 97 So.3d 140, 146 (Ala. 2012) ; Martin v. Clark, 554 So.2d 1030, 1032 (Ala. 1989).

We first note that neither Grimes nor Attenta addresses the issue presented here: Whether a final judgment in a second-filed action may have res judicata effect as to a first-filed action (1) where the pendency of the first-filed action was not asserted as a defense in the second-filed action, or, (2) if such a defense was asserted, where no appeal raising the issue of the effect of the pendency of the first-filed action was taken from the final judgment entered in the second-filed action. In contrast, Grimes involved the issue whether the circuit court in which the first-filed action was filed and that had retained jurisdiction to enforce its final judgment approving a class-settlement agreement could enjoin the plaintiff's prosecution of a pending second-filed action. After noting that the plaintiff was a member of the class that was subject to the settlement agreement in the first-filed action, the Grimes Court concluded that the injunction was proper, citing "the well-settled rule that where two courts have equal and concurrent jurisdiction, the court that first exercises jurisdiction in a matter has preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction." 726 So.2d at 618. Unlike the defendant in Grimes, McCain made no effort to enjoin Baldwin Mutual's prosecution of the Adair litigation based on the pendency of the present action.

Attenta involved the issue whether the circuit court in which the second-filed action was filed erred in denying Attenta's motion to dismiss that action because of the pendency of a first-filed action. In other words, unlike McCain in the present action, the defendant in Attenta appealed from the judgment in the second-filed action and specifically raised the pendency of the first-filed action as a defense supporting dismissal. In Attenta, this Court held that the circuit court in which the second-filed action was filed had erred in denying the defendant's motion to dismiss, noting that the court in which the first-filed action was pending, "having first taken cognizance of the cause, had 'the exclusive right to entertain and exercise such jurisdiction, to the final determination of the action and the enforcement of its judgments and decrees.' Grimes, 726 So.2d at 617." 97 So.3d at 147.

McCain's argument, as well as her use of the foregoing precedents as support, confuses the proper exercise of subject-matter jurisdiction with the existence of subject-matter jurisdiction. The former is an issue of limits on the exercise of power by a court that actually has power over a certain type of case; the latter is an issue of whether the court actually has any power over the type of case at issue, i.e., subject-matter jurisdiction.

As this Court has aptly observed:

"Subject-matter jurisdiction concerns a court's power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (' "By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought." ' (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870) ) ). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed. 2d 860 (2002)
(subject-matter jurisdiction refers to a court's 'statutory or constitutional power' to adjudicate a case). In deciding whether Seymour's claim properly challenges the trial court's subject-matter jurisdiction, we ask only whether the trial court had the constitutional and statutory authority to try the offense with which Seymour was charged and as to which he has filed his petition for certiorari review.
"Under the Alabama Constitution, a circuit court 'shall exercise general jurisdiction in all cases except as may be otherwise provided by law.' Amend. No. 328, § 6.04(b), Ala. Const. 1901 [§ 142, Ala. Const. 1901 (Off. Recomp.) ]."

Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006).

That the Calhoun Circuit Court had subject-matter jurisdiction over the "type of case" presented by Baldwin Mutual in the Adair litigation is beyond dispute. Likewise, McCain's counterclaims alleging breach of contract in that litigation were within the subject-matter jurisdiction of the Calhoun Circuit Court. The issue is not whether the Calhoun Circuit Court had subject-matter jurisdiction as to the Adair litigation; rather, the issue is whether the Calhoun Circuit Court properly exercised that jurisdiction in light of the pendency of the present action, which was filed first. As hereinafter discussed, that issue is one of abatement, and McCain's argument is merely a veiled attempt to use the concept of subject-matter jurisdiction to belatedly invoke abatement so as to defeat Baldwin Mutual's res judicata defense. Indeed, in the trial court, McCain's central argument as to why res judicata did not apply was that abatement prevented the filing of the contract counterclaims in the Adair litigation because it was the second-filed action, and therefore the summary judgment in the Adair litigation had no effect on her claims in the present action. That argument, however, is erroneous.

Alabama's abatement statute, § 6-5-440, Ala. Code 1975, provides:

"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."

As this Court has stated:

" § 6-5-440

" 'does not operate on the jurisdiction of the trial court. The statute does not provide that the trial court "is deprived of" jurisdiction over the second-filed action, or that the second-filed action "is void." Instead, § 6-5-440 provides that when two actions are commenced at different times, the pendency of the first-filed action "is a good defense" to the second-filed action. Thus, a defendant must raise the first-filed action as a defense in a motion to dismiss.' "

Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 437 n.2 (Ala. 2009) (quoting First Tennessee Bank, N.A. v. Snell, 718 So.2d 20, 27 (Ala. 1998) (See, J., concurring in the result) ); see also Ex parte Calhoun, 688 So.2d 259, 261 (Ala. 1997) (observing that " '[u]nless there is objection, even though one court has assumed jurisdiction of a matter, another court with concurrent authority may act in the same matter' " (quoting Sheffield v. Sheffield, 350 So.2d 1056, 1058 (Ala. Civ. App. 1977) ) ); Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 238, 190 So. 412, 418 (1939) ("The rule is of course understood that the pendency of another suit does not destroy jurisdiction, and until the later suit is abated, it may proceed."). And, this Court has repeatedly held that, "until abated, the subsequent suit may proceed to final judgment, even before the former comes on for trial, and may then be res judicata of the former." Strother v. McCord, 222 Ala. 450, 452, 132 So. 717, 719 (1931) ; see also, e.g., Logan v. O'Barr, 271 Ala. 94, 99, 122 So.2d 376, 380 (1960) ("[U]ntil abated, the subsequent suit could proceed to final judgment, even before the former comes on for trial and could then be res judicata of the former."); and Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 799 (1947) ("When two actions involving the same issue or issues, between the same parties or their privies, are pending at the same time, so that a final judgment in one would be res judicata or a bar in the other, when the judgment in one becomes final it may be urged in the other by appropriate proceedings, regardless of which action was begun first. It is the first final judgment although it may be in the second suit, that renders the matter res judicata in the other suit.").

We note that McCain did not raise the defense of abatement in the Adair litigation, or, if she did, she did not appeal from the final judgment in that litigation and assert abatement as to the summary judgment entered against her and in favor of Baldwin Mutual. Thus, she waived the existence of the present action as a defense to the prosecution of the Adair litigation. See Regions Bank v. Reed, 60 So.3d 868, 884 (Ala. 2010) (noting that abatement is a waivable affirmative defense); see also Chappell v. Boykin, 41 Ala. App. 137, 141, 127 So.2d 636, 639 (1960) ("The rule prohibiting splitting the cause of action being primarily for the benefit of the defendant may be waived by him."). That litigation has now proceeded to final judgment against McCain and in favor of Baldwin Mutual, and that final judgment may serve as the basis for the defense of res judicata in the first-filed action, i.e., the present action. See Strother, Logan, and Thompson, supra.

Based on the foregoing, we must reject McCain's argument as to subject-matter jurisdiction. The Calhoun Circuit Court in the Adair litigation had subject-matter jurisdiction as to McCain's breach-of-contract counterclaims, and that court adjudicated those claims in favor of Baldwin Mutual. Having established that McCain's individual claims of breach of contract in the present action are subject to a res judicata bar, what remains for determination is what effect this has on the trial court's certification of the class action.

" Rule 23(a) provides four prerequisites to bringing a class action: 1) the class must be so numerous that joinder of all members is impracticable; 2) there must be questions of law or fact common to the class; 3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and 4) it must appear that the representative parties will fairly and adequately protect the interests of the class."

Ex parte Gold Kist, Inc., 646 So.2d 1339, 1341 (Ala. 1994).

As Baldwin Mutual argued in its response to McCain's motion for class certification, the application of the doctrine of res judicata to McCain's breach-of-contract claims presents the issues whether her claims are subject to a unique defense ( Rule 23(a)(3) ) and whether she would be able to fairly and adequately represent the interests of the class ( Rule 23(a)(4) ). See, e.g., Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir. 2000) (observing that "we regard the law as settled that affirmative defenses should be considered in making class certification decisions"); see also note 4, supra.

Baldwin Mutual notes that federal courts have concluded that when a class representative's claims are subject to a unique defense, the class should not be certified, either because the situation renders the class representative's claims atypical or because the class representative cannot adequately protect the class's interests in that the class representative will have to focus too much time and energy on the unique defense asserted against the class representative.

"Several courts have held that 'class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.' Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed. 2d 667 (1991) ; see also J.H. Cohn & Co. v. American Appraisal Assoc., Inc., 628 F.2d 994, 998-99 (7th Cir. 1980) ; Hoexter v. Simmons, 140 F.R.D. 416, 422-23 (D. Ariz. 1991) (plaintiffs['] claims atypical of class because unique defense could be asserted against them); Rolex Employees Retirement Trust v. Mentor Graphics Corp., 136 F.R.D. 658, 664 (D. Or. 1991) ('The certification of a class is questionable where it is predictable that a major focus of the litigation will be on an arguable defense unique to the named plaintiff or to a subclass.')."

Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). See, e.g., J.H. Cohn & Co. v. American Appraisal Assocs., Inc., 628 F.2d 994, 999 (7th Cir. 1980) (explaining that the unique-defense rule exists because "[t]he fear is that the named plaintiff will become distracted by the presence of a possible defense applicable only to him so that the representation of the rest of the class will suffer"); Shiring v. Tier Techs., Inc., 244 F.R.D. 307, 313 (E.D. Va. 2007) (observing that "even where a putative class representative's claim is 'typical,' 'class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation' " (quoting Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir. 2000) ) ); and In re ML-Lee Acquisition Fund II, L.P. & ML-Lee Acquisition Fund (Ret. Accounts) II, L.P. Sec. Litig., 848 F.Supp. 527, 559 (D. Del. 1994) (acknowledging that "dispositive defenses that are unique to the named Plaintiffs may render their claims atypical"). See also Providian, supra.

We are persuaded that the foregoing reasoning and authorities announce the correct rule, and that that rule is dispositive of the issue before us. The trial court erred in certifying McCain's action for class treatment because the claims of the purported class representative are subject to a unique defense-res judicata. There are no other named class representatives in the complaint, and the action obviously cannot continue on a class basis without a representative, so the class-certification order must be reversed.

IV. Conclusion

We reverse the trial court's order certifying this action for class treatment. Because of our resolution of the first issue raised by Baldwin Mutual, its remaining arguments concerning why the action may not be appropriate for class certification under Rule 23, Ala. R. Civ. P., are pretermitted. We remand this action for an order or further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stuart, C.J., and Parker, Main, and Bryan, JJ., concur.

      In December 2010 or January 2011, the case was transferred from the Baldwin Circuit Court to the Calhoun Circuit Court.

      In the hearing on the summary-judgment motion in the present action, McCain's counsel asserted that "Ms. McCain was never supposed to be included" in the breach-of-contract counterclaims filed by the insureds in the Adair litigation, "but due to oversights, she actually was."

      In Providian National Bank, a plurality of this Court vacated a class-certification order on the basis that the class representatives' claims were barred by the doctrine of res judicata. The Providian plurality's rationale was subsequently approved by a majority of this Court in Price.

      This Court previously has observed that,
      "[i]n examining the several prerequisites for class certification contained in Rule 23, we must keep in mind that 'Rule 23 of the Alabama Rules of Civil Procedure reads the same as Rule 23 of the Federal Rules, and we consider federal case law on class actions to be persuasive authority for the interpretation of our own Rule 23.' "
      Ryan v. Patterson, 23 So.3d 12, 17 (Ala. 2009) (quoting Adams v. Robertson, 676 So.2d 1265, 1268 (Ala. 1995) ).

      As to the claims pertinent to this appeal, McCain is the plaintiff in the present action against Baldwin Mutual. She was a defendant (and a counterclaim plaintiff) in the Adair litigation initiated by Baldwin Mutual, as plaintiff. It is well settled, however, that "[w]here the parties' alignment (as plaintiff or defendant) in the original suit is reversed in the subsequent action, § 6-5-440 still applies, because it is designed to prohibit one party from twice prosecuting the same cause of action." Ex parte Vest, 181 So.3d 1049, 1055 (Ala. 2015).

      McCain's argument is further muted by the fact that "[a] petition for a writ of mandamus is an appropriate method by which to seek this Court's review of the denial of a motion to dismiss or for a summary judgment predicated on the doctrine of res judicata." Ex parte Webber, 157 So.3d 887, 891 (Ala. 2014). Baldwin Mutual could have filed such a petition, but, as to the issue of res judicata, the petition would have required consideration of the same issues and materials that Baldwin Mutual has presented on appeal from the class-certification order.

      The complaint in the present action was filed on September 29, 2010; the complaint in the Adair litigation was filed on December 2, 2010.

      It is true that the Attenta rationale discusses the resolution of the issue as a matter of subject-matter jurisdiction rather than as a matter of abatement. As hereinafter discussed, however, the pendency of a first-filed action clearly presents an issue of abatement, a waivable affirmative defense, not an issue of the subject-matter jurisdiction of the court in which the second-filed action is pending.

      If McCain's argument were correct, namely that the trial court in a second-filed action has no subject-matter jurisdiction over such an action, our precedents applying § 6-5-440 would be nonsense.

      In Adair, we noted that Baldwin Mutual had informed the trial court in the Adair litigation that "the class representative in McCain v. Baldwin Mutual, CV-10-901266, filed in Montgomery County, was the only one of the insureds who was currently a party in an action in which [Baldwin Mutual] also was a party." 181 So.3d at 1037 n.4. Consequently, among potential class members in the present action, McCain appears to be the only one subject to a res judicata defense.

      In other words, we do not here reach the question whether the elements of Rule 23 would be met by an unnamed class member whose claims are not subject to a res judicata defense. See Cutler v. Orkin Exterminating Co., 770 So.2d 67, 71 n.3 (Ala. 2000).