source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    Sheila Mote INGLE v. Jason Frank ADKINS et al.
    1160671
    Supreme Court of Alabama.
    November 9, 2017 Rehearing Denied January 12, 2018
    * Note from the reporter of decisions: Judge Tompkins, retired circuit judge, Colbert County, was appointed to preside over this case upon the recusal of the circuit judges in the 14th Judicial Circuit.
    J. Kenneth Guin, Jr., Jasper, for appellant.
    Mark S. Boardman and Clay R. Carr of Boardman, Carr, Petelos, Watkins & Cole, P.C., Chelsea; and Edward R. Jackson of Jackson, Fikes & Brakefield, Jasper, for appellees.
   MAIN, Justice.

Sheila Mote Ingle ("Ingle") appeals from an order entered by the Walker Circuit Court dismissing her claims against Jason Frank Adkins, individually and in his capacity as superintendent of the Walker County School System; the Walker County Board of Education ("the Board"); and Bradley Glenn Ingle, William Edward Gilbert, Dennis Dale Reeves, James Lynn Rigsby, and Sonia Marie Waid, members of the Board (hereinafter collectively referred to as "the Board members") (Adkins, the Board, and the Board members are hereinafter referred to collectively as "the defendants"). We affirm in part, reverse in part, and remand.

Facts and Procedural History

On August 4, 2016, Ingle filed in the Walker Circuit Court a "verified petition for writ of mandamus or in the alternative for declaratory judgment" against Adkins in his individual and official capacities, the Board members in their individual and official capacities, and the Board.

According to Ingle's petition, Adkins was elected superintendent of the Walker County School System on November 2, 2010. At the time of Adkins's election, the Board had set an annual salary of $139,500 for the position of superintendent. During a regularly scheduled Board meeting on July 18, 2013, the Board increased Adkins's salary by 2% effective July 1, 2013. Adkins was reelected on November 4, 2014. On December 11, 2014, the Board entered into an "employment contract" with Adkins that would become effective on January 1, 2015. That contract provided a base annual salary of $159,500, and it provided for increases in salary during Adkins's term of office. That contract also provided an in-county travel stipend of $1,000 per month. The Board modified the contract on November 12, 2015, to increase Adkins's compensation. That modification included providing Adkins with a cellular telephone paid for by the Board, allowing Adkins to participate in outside activities that do not interfere with his duties as superintendent and that are approved by the Board, and guaranteeing that, if "this agreement be permitted to expire," Adkins could return to a tenured position with the Walker County School System. Ingle attached three documents to her petition: (1) a copy of the minutes from the Board's July 18, 2013, meeting, (2) a copy of the December 11, 2014, "employment contract," and (3) a copy of the November 12, 2015, modified contract.

Ingle brought this action "in the name of the State of Alabama on the relation of Sheila Mote Ingle ... in her individual capacity as a resident citizen and taxpayer in Walker County, Alabama." Ingle sought a declaration that Adkins's July 2013 salary increase was unconstitutional, illegal, and void; that the December 2014 "employment contract" was unconstitutional, illegal, and void; and that the November 2015 modification of the employment contract was unconstitutional, illegal, and void. Ingle sought to compel the Board members "to vacate and/or rescind" the "employment contract." Further, Ingle sought to recover for the taxpayers of Walker County the allegedly illegal compensation that had already been paid to Adkins, and she sought to recover on her own behalf attorney fees. Additionally, Ingle alleged that, even if the employment contract was not determined to be unconstitutional and void, the Board had overpaid Adkins's travel stipend, and, thus, Ingle sought to recover that overpayment. Later, Ingle amended her petition to withdraw her claim for attorney fees.

The defendants moved to dismiss Ingle's claims. The defendants argued that Ingle failed to state a claim upon which relief could be granted, that Ingle's claims were barred by the doctrine of immunity, and that Ingle lacked standing to pursue her claims.

On April 10, 2017, the circuit court issued an order dismissing Ingle's claims, which stated as follows:

"This cause coming before the Court on the Motion To Dismiss the Defendants individually and in their official capacity and with the same being set for a hearing on April 5, 2017. The hearing was attended by the attorneys representing the parties and some parties. The attorneys made arguments to the Court and presented documents and briefs contained in the file. The Court having considered the arguments, documents and briefs and law presented, it is the opinion of the Court that the Motion To Dismiss should be granted; therefore, it is ORDERED, ADJUDGED, and DECREED by the Court that the Motion To Dismiss is GRANTED as to all defendants, individually and in their official capacity."

(Capitalization in original.) Ingle appealed.

Standard of Review
"A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299."

Newman v. Savas, 878 So.2d 1147, 1148-49 (Ala. 2003).

Discussion

On appeal, Ingle concedes that her claims against the Board are due to be dismissed on the basis of immunity. She also admits that she "may not seek damages or to otherwise impose civil liability on the individual Board members on account of those acts which have already occurred." Ingle's brief, at 19. Further, Ingle acknowledges that she may not have standing "to recover monies which have already been illegally expended," and she does not set forth any argument regarding the circuit court's dismissal of her claims concerning recovery of compensation that has already been paid to Adkins. Id. at 26. However, Ingle continues to seek to enjoin future payments under Adkins's current employment agreement with the Board, which Ingle claims is an illegal contract. Thus, on appeal, the issue is whether Ingle can pursue a claim against the Board members and Adkins in their individual and/or official capacities to declare Adkins's current contract illegal and to enjoin future payments from public funds pursuant to that contract.

First, we hold that the circuit court properly dismissed the claims against Adkins and the Board members in their individual capacities because "a suit for injunctive relief against a State official in his or her individual capacity would be meaningless. This is so, because State officials act for and represent the State only in their official capacities." Ex parte Dickson, 46 So.3d 468, 474 (Ala. 2010).

Now, we must decide whether Ingle can pursue claims against the Board members and Adkins in their official capacities to declare that Adkins's current contract is illegal and to enjoin payments under that contract going forward. Specifically, we must decide whether those claims are barred by the doctrine of immunity and whether Ingle has standing to pursue those claims.

Concerning immunity, this Court has stated that, "[b]ecause county boards of education are local agencies of the State, they are clothed in constitutional immunity from suit." Ex parte Hale Cty. Bd. of Educ., 14 So.3d 844, 848 (Ala. 2009). Further,

" '[u]nder Article 1, § 14, Alabama Constitution of 1901, "the State and its agencies have absolute immunity from suit in any court." Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989) ; see also Taylor v. Troy State University, 437 So.2d 472, 474 (Ala. 1983).... "State officers and employees, in their official capacities and individually, are also absolutely immune from suit when the action is, in effect, one against the state." Phillips v. Thomas, 555 So.2d at 83 ; see Taylor v. Troy State University, 437 So.2d at 474.'
" Williams v. John C. Calhoun Cmty. Coll., 646 So.2d 1, 2 (Ala. 1994).
" ' "The wall of immunity erected by § 14 is nearly impregnable. Sanders Lead Co. v. Levine, 370 F.Supp. 1115, 1117 (M.D. Ala. 1973) ; Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala. 1983) ; Hutchinson v. Board of Trustees of Univ. of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971). This immunity may not be waived. Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala. 2001) ('The State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority.'); Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala. 1979) (same); Opinion of the Justices No. 69, 247 Ala. 195, 23 So.2d 505 (1945) (same); see also Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372, 175 So. 383 (1937). 'This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.' State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added); see also Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963)."
" ' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002).'
" Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872-73 (Ala. 2004).
" 'Section 14 immunity is not absolute; there are actions that are not barred by the general rule of immunity.
" ' "[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14 : (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala. 2006) (quoting Ex parte Carter, 395 So.2d 65, 68 (Ala. 1980) ); Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831 (Ala. 2008) (holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these 'exceptions' to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep't of Transp., 990 So.2d at 840-41."
" ' Ex parte Alabama Dep't of Fin., 991 So.2d 1254, 1256-57 (Ala. 2008). The sixth "exception" to § 14 immunity was restated in Ex parte Moulton, 116 So.3d 1119, 1141 (Ala. 2013), as follows:
" ' "(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989)." '
" Ex parte Hampton, 189 So.3d 14, 17-18 (Ala. 2015).
" ' "These actions are sometimes referred to as 'exceptions' to § 14 ; however, in actuality these actions are simply not considered to be actions ' "against the State" for § 14 purposes.' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002). This Court has qualified those 'exceptions,' noting that ' "[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate." ' Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala. Civ. App. 1995) ) (emphasis added in Jones )."
" ' Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala. 2008).'
" Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 332 (Ala. 2011).
" ' "To determine whether an action against a State officer is, in fact, one against the State, this Court considers
" ' " 'whether "a result favorable to the plaintiff would directly affect a contract or property right of the State," Mitchell [v. Davis, 598 So.2d 801, 806 (Ala. 1992) ], whether the defendant is simply a "conduit" through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala. 1988), and whether "a judgment against the officer would directly affect the financial status of the State treasury," Lyons [v. River Road Constr., Inc.], 858 So.2d [257] at 261 [ (Ala. 2003) ].'
" ' " Haley [v. Barbour County], 885 So.2d [783] at 788 [ (Ala. 2004) ]. Additionally, '[i]n determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.' Ex parte Carter, 395 So.2d 65, 67-68 (Ala. 1980)." '
" Ex parte Moulton, 116 So.3d 1119, 1130-31 (Ala. 2013) (quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 839-40 (Ala. 2008) )."

Alabama State Univ. v. Danley, 212 So.3d 112, 122-24 (Ala. 2016).

In the present case, Ingle's claim against the Board members and Adkins in their official capacities to declare Adkins's current contract illegal and to enjoin payments under that contract going forward fits squarely into the sixth "exception" to § 14 immunity. Specifically, Ingle seeks an "injunction ... against State officials in their representative capacity where it is allege[d] that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law." Therefore, this claim is not an action "against the State" for § 14 purposes and is not barred by § 14 immunity.

Lastly, we must decide whether Ingle has standing to pursue this claim. Ingle argues that she has private standing to pursue this claim in her individual capacity as a citizen and taxpayer and that, if she does not have taxpayer standing, she has public-interest standing to pursue this claim in the name of the State.

This Court has stated:

" 'To say that a person has standing is to say that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.' Doremus v. Business Council of Alabama Workers' Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala. 1996). 'Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right." ' [ State v. Property] at 2018 Rainbow Drive, 740 So.2d [1025] at 1027 [ (Ala. 1999) ] (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J., dissenting)) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala. 2003) ('The power of the judiciary ... is "the power to declare finally the rights of the parties, in a particular case or controversy ...." ' (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala. 1998) )); Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed. 2d 556 (1984) ('[T]he law of Art. III standing is built on a single basic idea-the idea of separation of powers.').
"In Jones v. Black, 48 Ala. 540 (1872), this Court first articulated a test for determining whether a party has the necessary standing to challenge the constitutionality of an act of the Legislature. We stated then:
" 'A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is, or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.'
" 48 Ala. at 543. In Alabama Alcoholic Beverage Control Board v. Henri-Duval Winery, LLC, 890 So.2d 70, 74 (Ala. 2003), a party challenged the constitutionality of Alabama's Native Farm Winery Act, § 28-6-1 et seq., Ala. Code 1975. In that case, this Court effectively restated the standard articulated in Jones, using language adopted from the Supreme Court of the United States:
" 'A party establishes standing to bring a challenge [on constitutional grounds] when it demonstrates the existence of (1) an actual, concrete and particularized "injury in fact"-"an invasion of a legally protected interest"; (2) a "causal connection between the injury and the conduct complained of"; and (3) a likelihood that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).'
"(Emphasis added.)"

Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256-57 (Ala. 2004) (footnote omitted).

" 'When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction.' State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999). Under such a circumstance, the trial court has 'no alternative but to dismiss the action.' 740 So.2d at 1029."

Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala. 2005).

Concerning whether a person has standing as a citizen and taxpayer, this Court has recognized that

"[i]t is well settled that a taxpayer, in certain situations, has standing to challenge a proposed illegal expenditure by a state official. See Turnipseed v. Blan, 226 Ala. 549, 552, 148 So. 116, 118 (1933) (recognizing 'the right of a taxpayer to maintain a suit in equity to restrain an officer of a city or county from disbursing funds without statutory authority or under an unconstitutional statute' and holding that the same right applies in the context of suits in equity against state officers (emphasis added)); Goode v. Tyler, 237 Ala. 106, 109, 186 So. 129, 131 (1939) ('[T]his Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.' (emphasis added)); Zeigler v. Baker, 344 So.2d 761 (Ala. 1977) (upholding an order of the trial court granting the taxpayer-plaintiff an injunction enjoining the comptroller, the finance director, and the treasurer of the State from making payments from public funds under the authority of an unconstitutional act)."

Beckerle v. Moore, 909 So.2d 185, 187 (Ala. 2005).

Further,
"[i]n a long line of decisions this Court has recognized the right of a taxpayer to challenge, either as unconstitutional or as not conforming to statute, the expenditure of public funds by county officers. Court of County Revenues v. Richardson, 252 Ala. 403, 41 So.2d 749 (1949) ; Poyner v. Whiddon, 234 Ala. 168, 174 So. 507 (1937) ; Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938) ; Travis v. First Nat. Bank of Evergreen, 210 Ala. 620, 98 So. 890 (1924) ; Reynolds v. Collier, 204 Ala. 38, 85 So. 465 (1920). The right of a taxpayer to challenge the unlawful disbursement of state funds likewise is unquestioned. Goode v. Tyler, 237 Ala. 106, 186 So. 129 (1939) ('... this Court is committed to the doctrine that a taxpayer may maintain a suit in equity to restrain a state officer in the unlawful disbursement of state funds.'); Hall v. Blan, 227 Ala. 64, 148 So. 601 (1933) ; Turnipseed v. Blan, 226 Ala. 549, 148 So. 116 (1933). The latter two cases dealt with the constitutionality of disbursements, while Goode involved expenditures to be made under purported statutory authority. The Supreme Court of Illinois wrote to this principle in Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915) :
" 'We have repeatedly held that taxpayers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the taxpayer[s'] equitable ownership of such funds and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.' "

Zeigler v. Baker, 344 So.2d 761, 763-64 (Ala. 1977). "[I]t is this liability to replenish the public treasury through the payment of taxes that gives a plaintiff in a taxpayer's action standing." Broxton v. Siegelman, 861 So.2d 376, 385 (Ala. 2003).

"This Court is committed to the proposition that a taxpayer may maintain a bill to prevent a misappropriation of the county funds. Reynolds, County Treas., et al. v. Collier, 204 Ala. 38, 85 So. 465 [ (1920) ] ; Potts v. Commissioners' Court of Conecuh County, 203 Ala. 300, 82 So. 550 [ (1919) ] ; O'Rear v. Sartain, 193 Ala. 275, 69 So. 554 [ (1915) ].
"Borchard in his treatise on Declaratory Judgments, at p. 597, observes:
" 'In most states of the United States, and practically always in American municipalities, a taxpayer is deemed to have sufficient legal interest to prevent by injunction the improper or illegal expenditure of public funds, without invoking the actual or pro forma aid of an attorney general as party plaintiff. A fortiori, therefore, he has sufficient interest to request declaratory relief against such expenditure or activity, whether in the form of a proposed or signed contract, or otherwise....' "

Thompson v. Chilton Cty., 236 Ala. 142, 144, 181 So. 701, 702-03 (1938).

Thus, this Court has repeatedly recognized that a taxpayer has standing to seek an injunction against public officials to prevent illegal payments from public funds. The following is Adkins and the Board members' response to Ingle's assertion that she has a taxpayer standing:

" 'Government officials cannot be sued simply because a person thinks the officials are doing something wrong; the thing they are doing must result in "concrete and particularized" and "actual or imminent" harm to the person seeking judicial relief.' Ex parte State ex rel. Ala. Policy Inst., 200 So.3d 495, 556 (Ala. 2015) (Shaw, J., dissenting). The Court explained in Ala. Policy Inst. that to have standing, '[i]t is generally insufficient that a plaintiff merely has a general interest common to all members of the public.' 200 So.3d at 517 (quoting State ex rel. Cittadine v. Indiana Dep't of Transp., 790 N.E.2d 978, 983 (Ind. 2003) ). Ingle has no greater interest than all other members of the public in the terms and conditions of Dr. Adkins' service. Consequently, she lacks standing individually and her claims were properly dismissed."

Adkins and Board members' brief, at 7.

It is correct that, for over a century, Alabama has followed the general rule that, to have standing to bring an action, the plaintiff must have an interest in the outcome of the action and show that he or she has suffered or imminently will suffer an injury. See Town of Cedar Bluff, 904 So.2d at 1256 (recognizing that in 1872 this Court first articulated that, to have standing, a party must demonstrate an injury). However, since Alabama first recognized that rule, this Court has also continually held that taxpayers have standing to seek an injunction against public officials to prevent illegal payments from public funds. This standing is based on the fact that taxpayers have an equitable ownership in the public funds and will be responsible for replenishing the public funds if those funds are misappropriated, and, thus, a taxpayer suffers an injury when public funds are illegally spent. Therefore, Ingle has standing as a taxpayer to seek an injunction against Adkins and the Board members in their official capacities to prevent illegal payments from public funds. Furthermore, because Ingle has standing to pursue this claim as a taxpayer, we need not discuss whether she has public-interest standing to pursue this claim in the name of the State.

In their briefs on appeal, the parties also set forth arguments concerning the merits of Ingle's claims. However, those arguments are not ripe for consideration at this stage of the litigation, and, thus, we will not consider them at this time.

Conclusion

Based on the foregoing, this Court reverses the circuit court's order dismissing Ingle's claims against the Board members and Adkins in their official capacities alleging that Adkins's current agreement with the Board is illegal and seeking to enjoin payments under that agreement going forward, and we remand the case for proceedings consistent with this opinion. In all other respects, this Court affirms the circuit court's order of dismissal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

Murdock, J., concurs in the result.

      It appears that Waid and Reeves are no longer members of the Board. Shortly after the November 2016 election, Waid and Reeves moved to have themselves dismissed from the case in their official capacities because they had ceased to hold office. Ingle conceded that Waid and Reeves should no longer be parties to the case in their official capacities, but she argued that under Rule 25, Ala. R. Civ. P., Waid's and Reeves's successors were automatically substituted as parties. The defendants argued that Ingle must "file[ ] something to identify [the successors]." The trial court did not make a specific ruling on this issue.


author: SELLERS, Justice.

text:
    George BATES and David Joyner v. Donald W. STEWART, et al.
    1160800
    Supreme Court of Alabama.
    January 12, 2018
    William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellants.
    Edward McF. Johnson of Stewart & Stewart, P.C., Bessemer, for appellees.
   SELLERS, Justice.

George Bates and David Joyner appeal from an order of the Etowah Circuit Court approving a final judicial accounting of the administration of a trust pursuant to § 19-3B-205, Ala. Code 1975. We dismiss the appeal.

The underlying facts of this case are detailed in Bates v. Stewart, 99 So.3d 837 (Ala. 2012), in which this Court consolidated several appellate proceedings for the purposes of issuing one opinion. The underlying facts of the Bates opinion, as well as of this appeal, stem from a global settlement agreement approved by the Etowah Circuit Court in connection with a toxic-tort action commenced in 1996 by over 3,500 plaintiffs against, among others, Monsanto Company ("the Monsanto litigation"). The plaintiffs in the Monsanto litigation were represented by Donald W. Stewart ("Stewart") and the New York law firm of Kasowitz, Benson, Torres & Friedman, LLP ("Kasowitz"). In 2003, the parties reached a settlement of $300 million, which the trial court approved. The settlement agreement provided, among other things, that a specific amount of the settlement proceeds

"was to be placed into a trust (hereinafter referred as 'the Abernathy trust') established to pay health-care and educational benefits to [the plaintiffs] who qualified for assistance with medical treatment and other health-care services and/or who qualified for assistance with educational grants, scholarships, or loans, and $14 million was to paid as attorney fees."

Bates, 99 So.3d at 840. The settlement agreement was incorporated into the final judgment, which provided that the trial court retained continuing jurisdiction over the Monsanto litigation for the purpose of enforcing the settlement agreement. Stewart actually formed the trust required by the settlement agreement to be "established to pay health-care and educational benefits" to the plaintiffs ("the Abernathy trust") and served as its trustee.

In Bates, this Court addressed the issue whether the trial court had erred in dismissing Bates and Joyner's claim seeking an accounting of the administration of the Abernathy trust pursuant to § 19-3B-205, Ala. Code 1975. This Court concluded that, under § 19-3B-205(a), Bates and Joyner, as beneficiaries of the Abernathy trust, had a right to bring an action seeking an accounting of the administration of the Abernathy trust. Accordingly, this Court held that the trial court's dismissal of the claim seeking an accounting of the administration of the trust was error, and we remanded the case for further proceedings.

This Court also addressed in Bates a petition for a writ of mandamus filed by Stewart and Kasowitz relating to an order entered by the trial court on August 22, 2011. The mandamus petition stemmed from a motion filed by additional plaintiffs in the Monsanto litigation ("the Adams plaintiffs"). The Adams plaintiffs had filed in the trial court a "motion to intervene as plaintiffs and for an accounting and other relief." In their motion, the Adams plaintiffs sought to reopen the 2003 judgment entered in the Monsanto litigation and requested, among other things, an accounting of the funds in settlement of the Monsanto litigation, including the attorney fees awarded and the distributions from the Abernathy trust. On August 22, 2011, the trial court entered an order that, among other things, scheduled a hearing on the reasonableness of the attorney-fee award in the 2003 judgment, ordered the unsealing of certain records that Stewart and Kasowitz contended would disclose medical and financial information relating to the plaintiffs in the Monsanto litigation, and froze distributions from the Abernathy trust. Stewart and Kasowitz asked this Court to direct the trial court to vacate the August 22 order on the basis that the trial court lacked the authority under Rule 60(b), Ala. R. Civ. P., to reopen the 2003 judgment because the motion seeking to reopen the judgment was filed far beyond a reasonable time. This Court granted the petition for a writ of mandamus as to all portions of the August 22 order except "that portion in which the trial court sought to review the Abernathy trust documents to see if they comport with the terms of the settlement agreement." Bates, 99 So.3d at 854-55. We noted that the trial court had continuing jurisdiction to review the Abernathy trust documents for this stated reason, but "no more." 99 So.3d at 854.

On remand, Stewart and Kasowitz filed with the trial court this Court's opinion in Bates, the trust declaration, and the settlement agreement. The trial court ultimately entered an order, concluding that the Abernathy trust had been established in accordance with the terms of the settlement agreement. The Adams plaintiffs appealed, and this Court affirmed, without an opinion. See Abernathy v. Monsanto Co., 210 So.3d 1083 (Ala. 2015) (table).

On December 16, 2015, Stewart and Kasowitz moved the trial court to disburse the remaining funds in the Abernathy trust, to approve the final judicial accounting of the administration of the Abernathy trust, and to dismiss the action with prejudice. Bates and Joyner filed several motions, as well as a petition for interim attorney fees. The trial court held a hearing on all pending motions and, on April 26, 2017, entered an order approving the final judicial accounting. The trial court further denied motions filed by Bates and Joyner, including their petition for interim attorney fees. This appeal followed.

On appeal, Bates and Joyner argue that the trust formed by Stewart was not authorized, that the trust accounting could not, as the defendants below requested, be lawfully filed under seal, and that the trial court erred in denying their petition for interim attorney fees. It appears that the first two issues are not responsive to the trial court's order, which approves the final judicial accounting. However, because of its jurisdictional implications, we first address Stewart and Kasowitz's argument, as explained in detail in their motion to dismiss this appeal, that the trial court's April 26, 2017, order is not a final order pursuant to Rule 54(b), Ala. R. Civ. P. The trial court's order, approving the final judicial accounting, states, in pertinent part:

"3. After payment of any remaining debts of the Abernathy Trust, the Abernathy Trust funds are due to be disbursed according to [Stewart and Kasowitz's] Motion to Disburse Remaining Trust Funds, Approve the Final Judicial Accounting, and Dismiss this Action with Prejudice and [Stewart and Kasowitz's] Supplementation of Motion to Disburse Remaining Trust Funds, Approve the Final Judicial Accounting, and Dismiss this Action with Prejudice to the Saks, Wellborn and Anniston City School Systems in such amounts as the Trustee shall designate in his discretion. Upon written notice by the Trustee to the Court indicating that all Trust business has been concluded, this Court finds that this action is due to be dismissed with prejudice.
"4. [Bates and Joyner's] Petition for Interim Attorney's Fees is not well taken and is, therefore, due to be denied.
"....
"THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the Court that [Bates and Joyner's] Motion to Reconsider, Rescind or Set Aside the Court's Order of February 3, 2017, is DENIED; the Judicial Accountings pursuant to Ala. Code [1975,] § 19-3B-205 [,] are hereby APPROVED; after payment of any remaining debts of the Abernathy Trust, the remaining Abernathy Trust funds shall be disbursed, according to the Trustee's discretion, to the Saks, Wellborn and Anniston City School Systems in such amounts as the Trustee shall designate; and upon written notice by the Trustee to the Court indicating that all Trust business has been concluded, this case shall be dismissed as to all Defendants with prejudice.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that, upon filing written notice that the remaining debts of the Abernathy Trust have been paid and all remaining funds have been disbursed to the school systems identified above, Donald W. Stewart will have completed his role of Trustee and that he will be due to be dismissed and discharged as Trustee and that he will be due to be dismissed and discharged of all duties and any and all liability as Trustee of the Abernathy Trust Foundation and said Trust shall be closed.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that [Bates and Joyner's] Petition for Interim Attorney's Fees is hereby DENIED ...."

(Capitalization in original; emphasis added.)

The trial court did not certify its order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., which requires "an express determination that there is no just reason for delay" and "an express direction for the entry of judgment." Moreover, the trial court's order contemplates that the case will not be dismissed against all defendants, with prejudice, until and unless Stewart, the trustee, certifies to the court in writing that all trust business has been concluded. When the trial court entered the April 26, 2017, order, Stewart had not paid the remaining debts of the Abernathy trust, he had not disbursed the remaining funds in the trust, he had not filed any written notice with the trial court indicating that the trust business had been concluded, and he had not been dismissed as trustee of the trust. Although the order states that the trust funds are due to be disbursed in such amounts as Stewart, the trustee, may designate in his discretion, the order leaves open other possible disputes concerning the manner in which Stewart exercises his discretion in disbursing the remaining funds and/or in paying the debts of the Abernathy trust.

Because the trial court did not certify its order as final pursuant to Rule 54(b) and because its order contemplates further action on behalf of the trustee, the order is not a final appealable order. See Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 788 n.5 (Ala. 2011) (noting that an order that "leaves the parties with something to determine on their own and leaves open the possibility of further action by the trial court" is not a final order). Accordingly, this Court lacks jurisdiction to entertain Bates and Joyner's appeal.

APPEAL DISMISSED.

Stuart, C.J., and Parker, Shaw, and Wise, JJ., concur.


author: THOMAS, Judge.

text:
    Frank BUCK and Martha Buck v. CH HIGHLAND, LLC, and City of Birmingham
    2150220
    Court of Civil Appeals of Alabama.
    June 10, 2016
    Donald H. Brockway, Jr., Birmingham, for appellants.
    John C. Neiman, Jr., Thomas W. Thagard III, and Will A. Smith of Maynard, Cooper & Gale P.C., Birmingham, and Walter A. "Tod" Dodgen of Maynard, Cooper & Gale, P.C., Huntsville, for appellee CH Highland, LLC; and Fredric L. Fullerton II, City Attys. Office, Birmingham, for appellee City of Birmingham.
   THOMAS, Judge.

Frank Buck and Martha Buck appeal from a summary judgment entered against them by the Jefferson Circuit Court regarding a zoning decision made by the Birmingham City Council ("the city council"), which was the subject of an appeal filed by the Bucks in the circuit court. We affirm the summary judgment.

The Bucks are the owners of real property located on 14th Avenue South in Birmingham, which, according to the Bucks, was "improved by and with an office building, which ... is residential in character and was originally built as a single family residential dwelling house in 1912." The office building houses Frank's law firm. CH Highland, LLC ("Highland"), is a limited-liability company owned by Cortland Partners, Inc., and Harbert Realty Services, LLC, that was created for the purpose of developing a luxury apartment complex with retail and restaurant space ("the subject property") in the Five Points South district of downtown Birmingham. Highland is the developer of the subject property, which is located on 14th Avenue South. In 2014 the Birmingham Comprehensive Plan ("the comprehensive plan") was adopted by the city council and approved by Mayor William A. Bell.

Highland intended to build a multi-story apartment complex, which conformed with the comprehensive plan but did not conform with the then current zoning restrictions applicable to the zoning district in which the subject property is located. Therefore, Highland had applied to the Birmingham Zoning Board of Adjustment for several variances, which had been approved and which were the subject of an appeal filed by the Bucks in the circuit court in case no. CV-13-00850. A hearing in that case was held on August 14, 2014; however, that case was ultimately dismissed as moot based upon the events that gave rise to this appeal.

On September 8, 2014, Highland submitted a rezoning application to the Birmingham Planning and Zoning Committee ("the advisory committee"). Highland requested that the area around the subject property be rezoned from a B-2 general-business district to a B-3 community-business district for the purpose of

"building a high density, mixed use project ... in conformity with the revised zoning and the City's Comprehensive Plan for this area (the 'Project'). The Project will consist of 318 apartment units, with 244 units in a fifteen story high rise apartment building facing Highland Avenue, 74 units on the back of the property facing 14th [Avenue South], an interior parking deck and approximately 4,700 square feet of retail space."

The advisory committee recommended to the city council that it approve Highland's request. Highland additionally sought approval from the City of Birmingham Planing and Zoning Commission. Notice was given that public hearings were being held, the city council held hearings, and, on December 30, 2014, the city council voted to adopt Ordinance No. 1949-G ("the rezoning decision"), which rezoned the area of the subject property to not a B-3 but, instead, a QB-3 community-business district. The "Q" refers to two specific "qualified" conditions ("the Q conditions"). The Q conditions required Highland to submit a site-development plan to the City of Birmingham Department of Planning, Engineering, and Permits that addressed various parking-, lighting-, landscaping-, and architectural-compatibility issues and to enter into a memorandum of understanding ("MOU") with the Temple Beth-El. Mayor Bell approved the rezoning decision on January 8, 2015.

On April 9, 2015, the Bucks filed a complaint against the City of Birmingham ("the City"); Mayor Bell and the city-council members, in their official capacities; and Highland ("the defendants"), in which the Bucks alleged that the actions of the city council were arbitrary and capricious, that the City and the city council should be restrained from taking any action in reliance on the rezoning decision, that the Bucks' right to due process and equal protection had been violated, and that certain actions had violated applicable laws and ordinances.

On May 1, 2015, the defendants filed a motion to dismiss the Bucks' complaint and a motion for a stay of discovery pending the entry of an order on their motion to dismiss. The circuit court entered an order granting the stay on May 21, 2015. However, on June 15, 2015, the circuit court entered an order denying the defendants' motion to dismiss and lifting the stay. Thereafter, Mayor Bell and the city-council members filed a motion to dismiss the claims asserted against them, which the circuit court granted on June 24, 2015.

In July 2015, Highland and the City each moved for a summary judgment, asserting that undisputed evidence demonstrated that the rezoning decision

"was the product of a thoughtful, well-reasoned analysis by the City of Birmingham (the 'City') spanning four (4) months and seven (7) public meetings. It was expressly considered and approved by the Zoning Advisory Committee, the Planning and Zoning Committee, the Mayor, the Planning Commission, the City Council, and the Five Points South Neighborhood Association. Even more fundamentally, it complies with the comprehensive plan passed by the City of Birmingham in 2013."

Highland and the City included a lengthy recitation of the undisputed facts, including that it was undisputed that the city council's decision was not arbitrary and capricious and that the Bucks' "constitutional claims" failed on substantive grounds and as a matter of law because the Bucks' had failed to serve the complaint on the State Attorney General. Highland and the City attached numerous exhibits to their motions.

On August 19, 2015, the Bucks filed a Rule 56(f), Ala. R. Civ. P., motion, generally asserting that, in order to file an affidavit in opposition to the summary-judgment motions, they needed the City's and Highland's "documents," which were, they said, crucial to their case. The Bucks requested that the circuit court deny the summary-judgment motions or grant a continuance. The Bucks attached to their motion a list of 15 items upon which they intended to rely. The list designated five items that were "not available," which included transcripts or videotapes of certain hearings, a map, and a copy of the comprehensive plan. The record contains the Bucks' attorney's affidavit; however, there is no indication that it was filed in the circuit court. Regardless, in the affidavit, the attorney generally testified that he had asked for "other documentary evidence," for "requested documents," and for "affidavits and documents." On August 28, 2015, the circuit court denied the Bucks' Rule 56(f) motion.

Also on August 19, 2015, the Bucks filed a response to the motions for a summary judgment in which they asserted that genuine issues of material fact existed. Specifically, the Bucks claimed that there remained "multiple issues of fact regarding whether [the rezoning decision] complie[d] with the comprehensive plan," whether the rezoning decision was arbitrary and capricious, whether their right to due process had been violated, and whether the city council was biased. The Bucks denied that they were required to serve a copy of their complaint on the attorney general because, they argued, they had not challenged the constitutionality of a "statute, ordinance, or franchise" pursuant to § 6-6-227, Ala.Code 1975, but, instead, had challenged only the actions of those interpreting and enforcing the relevant ordinance.

On August 28, 2015 the circuit court entered the following judgment in its entirety.

"In this action, the [Bucks] challenge a zoning ordinance passed by the City of Birmingham in December 2014. That ordinance rezoned certain property in the Five Points South district of the City from a B-2 classification (for a general business district) to [Q]B-3 (a community business district). The [Bucks] are owners of an adjoining piece of property.
"Currently pending are motions for summary judgment, filed by the remaining defendants herein. The [Bucks] oppose the motions. This order comes after review of all filings in support of, and in opposition to, the motions.
"This court must observe a highly deferential standard in judging a legislative action taken by the City of Birmingham. It is not the role of this court to step into the shoes of the Birmingham City Council and interfere with its zoning power. Accordingly, the question is not whether the rezoning decision of the City Council was wise or prudent. This court must defer so long as the evidence presents a rational and justifiable basis for the rezoning decision.
"With this position of deference, and after reviewing the evidence presented by the parties, this court cannot conclude that the City Council acted in an arbitrary or capricious way.
"The [Bucks] also argue that the City of Birmingham failed to meet its statutory obligation to publish notice of the proposed ordinance. The City did publish the requisite notice in advance of the City Council's vote, however, and the court agrees with the defendants that additional notice was not required under the particular circumstances here.
"Finally, the court concludes that the [Bucks] received actual notice and were given an opportunity to be heard before the ordinance was enacted. The [Bucks] appear to have taken full advantage of this opportunity by voicing their opposition to the proposal on several occasions. The [Bucks], in short, were provided with sufficient due process.
"For these reasons, and for the others raised therein, the defendants' pending summary judgment motions must be granted. This action is accordingly dismissed with prejudice, with costs taxed as paid."

The Bucks filed a timely postjudgment motion, which the circuit court denied on October 6, 2015. The Bucks filed a timely notice of appeal to our supreme court on November 16, 2015. The appeal was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. The Bucks seek our review of whether the circuit court erred by applying "the principle of a 'highly deferential standard' to the disputed facts," by concluding that §§ 11-52-77 and 11-52-78, Ala.Code 1975, did not require the City to provide the Bucks "new notice and a new hearing," by failing to conclude that the Bucks' right to due process had not been violated, by concluding that the city council was an impartial tribunal, or by denying the Bucks' Rule 56(f) motion.

"This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Ala. v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989) ; Ala.Code 1975, § 12-21-12."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004).

First, we conclude that the circuit court did not err by "observ[ing] a highly deferential standard."

"It is also well-settled that the courts must apply a highly deferential standard in reviewing zoning decisions. See, e.g., American Petroleum [Equip. & Constr., Inc. v. Fancher], 708 So.2d [129,] 133 [ (Ala.1997) ]; City of Mobile v. Karagan, 476 So.2d 60, 63 (Ala.1985) ; Episcopal Found. of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967). '[P]assage of a zoning ordinance is a legislative act, and it is well established that municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable.' Cudd v. City of Homewood, 284 Ala. 268, 270, 224 So.2d 625, 627 (1969)."

Pollard v. Unus Props., LLC, 902 So.2d 18, 24 (Ala.2004).

Second, the Bucks contend that the circuit court erred by concluding that §§ 11-52-77 and 11-52-78 did not require the City to provide the Bucks "new notice and a new hearing." Together, §§ 11-52-77 and 11-52-78 provide the notice requirements for the adoption of, changes to, and amendments of zoning ordinances. Our supreme court has held that the statutory 15-day notice requirements contained in § 11-52-77 are mandatory. Kennon & Assocs., Inc. v. Gentry, 492 So.2d 312, 315 (Ala.1986) ; see also Builders Dev. Co. v. City of Opelika, 360 So.2d 962, 964 (Ala.1978) ; Alabama Alcoholic Beverage Control Bd. v. City of Birmingham, 253 Ala. 402, 407, 44 So.2d 593, 597 (1950). In the motion for a summary judgment, Highland and the City asserted:

"All required prerequisites for amending the Birmingham Zoning Ordinance were strictly followed by the City Council. See Ala.Code [1975,] §§ 11-52-77, 11-52-78.... The public hearing for ... Highland's Application was scheduled for December 30, 2014. The proposed rezoning ordinance and notice of public hearing were published in the Birmingham News on November 21, 2014, followed by publication of a synopsis of the proposed ordinance on November 28, 2014. True and correct copies of each such publication are collectively attached as Exhibit 'M.' "

In their response to the motions, the Bucks argued not that notice was not published but that the Q conditions were "not presented to the public." The Bucks' response reads, in pertinent part:

"The notices were published on November 21, 2014, and November 28, 2014, respectively and gave notice of a change from B-2 to B-3. However, at the public hearing, the noticed change from B-2 to B-3 was amended so as to reflect that it was subject to two Q conditions, one of which was based upon a MOU between the developer an adjoining property owner, which said MOU was not executed until December 22, 2014, and not presented for consideration to the City until the evening of December 29, 2014. The MOU was never presented to the public. The transcript of the council hearing reflects an amended ordinance based upon the MOU, which had not been noticed in accordance with § 11-52-77 and § 11-52-78[, Ala.Code 1975 ], as required by law."

The circuit court determined that the City had properly published the requisite notice in advance of the city council's vote and that no additional notice of the Q conditions had been required. In City of Mobile v. Cardinal Woods Apartments, Ltd., 727 So.2d 48, 54 (Ala.1999), our supreme court affirmed the trial court's judgment that had determined that a zoning ordinance was invalid because the notice had failed to apprise the public that the requested rezoning would allow not only specialty shops but also a chain restaurant. The Cardinal Woods court concluded that the notices in that case had "tended only to 'mislead.' " 727 So.2d at 54 (citing 1 E. Zieglar, Jr., Rathkopf's the Law of Zoning and Planning § 10.03 (1992)).

In this case, the public was not similarly misled. The published notice indicated that rezoning of the district containing the subject property from B-2 to B-3 would be considered. The Bucks do not dispute that that notice was sufficient. Even though no notice was given of the contents of the MOU or that the Q conditions would be required, the published notice apprised interested persons "how, and for what, to prepare." Id. The Bucks make no argument that the intended use of the subject property differed significantly because of the addition of the Q conditions. Thus, we conclude that the circuit court did not err by declining to conclude that the City had violated §§ 11-52-77 and 11-52-78.

Third, the Bucks contend that the circuit court erred by failing to conclude that the Bucks' right to due process had been violated. "[P]rocedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one's life, liberty, or property interests are about to be affected by governmental action." Brown's Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992) ; see also Carter v. City of Haleyville, 669 So.2d 812 (Ala.1995). The Bucks argue that they were not allowed a "full and complete" opportunity to be heard. The circuit court determined that the Bucks not only had been offered an opportunity to be heard, but also had "taken full advantage of this opportunity by voicing their opposition to the proposal on several occasions." The documents submitted for the circuit court's review demonstrated that the Bucks' attorney appeared and spoke on their behalf at public hearings and at the city-council meeting at which the rezoning decision was made, and, in fact, the Bucks' attorney was granted additional time at the city-council meeting when he had not completed his statement within the allotted period. Accordingly, the Bucks have failed to demonstrate that they were not afforded notice or the right to be heard.

Fourth, the Bucks argue that the circuit court erred by failing to conclude that the city council was not an impartial tribunal. We agree that " '[a]n unbiased and impartial decision-maker is one of the most, if not the most, fundamental of requirements of fairness and due process.' " State Tenure Comm'n v. Page, 777 So.2d 126, 131 (Ala.Civ.App.2000) (quoting Stallworth v. City of Evergreen, 680 So.2d 229, 233-34 (Ala.1996) ). Based on one comment made by one city-council member, the Bucks contend that the entire city council was "committed, bridled by previous decisions and economic motives[,] to approve the rezoning request" before the public hearings. The Bucks include that comment: "It looks like it's something already set for conclusion to this process."

In context, that comment was made during a public hearing after the Bucks' attorney had been allowed to speak at two committee meetings, had been afforded equal time to speak at the public hearing, and had actually been given additional time to speak at the city-council meeting. The city-council member had requested that the Bucks' attorney be allowed more additional time to speak, which, by a vote, was not allowed. After the vote, the city-council member said that he had wanted to hear more information because he had been unable to attend the committee meetings, that "[i]t looks like it's something already set for conclusion to this process," and that he would have preferred to have "hear[d] the rest of what [the Bucks' attorney] had to say."

In Page, supra, we considered the effect of an " 'intolerably high risk of bias,' " 777 So.2d at 131, and we affirmed the trial court's conclusion that certain notations in official documents and comments of school officials had indicated that a local board of education had predetermined that it would cancel Page's employment contract before Page had had the opportunity to be heard. However, we agree with the circuit court in this case; unlike in Page, the Bucks' reliance on one comment, taken out of context, does not demonstrate an intolerably high risk of bias; thus, the circuit court did not err by impliedly concluding that the city council was not biased against the Bucks before they had an opportunity to be heard.

Finally, we consider whether the circuit court erred by denying the Bucks' Rule 56(f) motion. In Fogarty v. Southworth, 953 So.2d 1225 (Ala.2006), our supreme court explained:

" Rule 56(f), Ala. R. Civ. P., states, in pertinent part: 'Should it appear from the affidavits of a party opposing the [summary-judgment] motion that the party cannot, for reasons stated, present by affidavit facts essential to justify the party's opposition, the court may deny the motion for summary judgment or may order a continuance to permit ... discovery to be had....' As we noted in Scrushy v. Tucker, 955 So.2d 988, 1007 (Ala.2006), ' "[s]uch an affidavit should state with specificity why the opposing evidence is not presently available and should state, as specifically as possible, what future actions are contemplated to discover and present the opposing evidence." ' (Citing Committee Comments to August 1, 1992, Amendment to Rule 56(c) and Rule 56(f).) As the rule indicates, whether to deny a motion for summary judgment or to grant a continuance to allow discovery to proceed is discretionary with the trial court.
"However, the scope of the trial court's discretion is narrow, not broad. This Court has consistently held that the pendency of outstanding discovery alone is not sufficient to bar a summary judgment. See Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988) ; Hope v. Brannan, 557 So.2d 1208, 1212 (Ala.1989). Furthermore, if the party opposing the motion can show that the outstanding discovery is crucial to that party's ability to oppose a summary-judgment motion, then the trial court should not enter the summary judgment until the outstanding discovery is completed. McCullar v. Universal Underwriters Life Ins. Co., 687 So.2d 156, 161 (Ala.1996) (noting that a nonmovant at summary-judgment stage has the 'burden of proving how information from [documents sought in discovery] is crucial to her case'). Therefore, parties opposing a summary judgment bear a more stringent burden than merely showing that the outstanding discovery 'may be' crucial to their case."

953 So.2d at 1229. In this case, we conclude that the circuit court did not abuse its discretion. Neither the Bucks' Rule 56(f) motion nor the Bucks' attorney's affidavit stated with specificity what the opposing evidence was, why the opposing evidence was not available, what future actions were contemplated to discover and present the opposing evidence, or how the opposing evidence was crucial to their ability to oppose the summary-judgment motion.

In conclusion, the circuit court did not err by employing the highly deferential standard of review, by concluding that the City was not required to provide the Bucks new notice and a new hearing as a result of the inclusion of the Q conditions, by concluding that the Bucks' right to due process had not been violated, by implicitly concluding that the city council was an impartial tribunal, or by denying the Bucks' Rule 56(f) motion. The summary judgment entered by the circuit court is therefore affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

      The Bucks' complaint listed fictitiously named defendants; however, no defendants were ever substituted for the fictitiously named defendants. "[T]he existence of those unserved and unnamed defendants did not preclude the finality of the trial court's summary judgment." Webb v. Knology, Inc., 164 So.3d 613, 616 n. 1 (Ala.Civ.App.2014) (citing Rule 4(f), Ala. R. Civ. P.).

      In its motion for a summary judgment, the City joined Highland's motion for a summary judgment and included an elaboration of certain facts regarding the public interest in the rezoning decision.

      Highland argues in its brief to this court that the Bucks' appeal should be dismissed because of the failure to serve the attorney general. We decline to dismiss the appeal because we conclude that neither the issues raised in the Bucks' complaint nor the issues raised on appeal involve a constitutional challenge to any "statute, ordinance, or franchise." § 6-6-227.

      The MOU, in large part, pertains to protections and liability during the construction period.

      The assertion that the Bucks were denied due process because they were not afforded a "full and complete" opportunity to be heard is not well taken.
      " 'The hallmarks of procedural due process are notice and "the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " ' Alabama Republican Party v. McGinley, 893 So.2d 337, 344 (Ala.2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting in turn Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) )."
      A.E.C. v. J.R.M., Jr., 46 So.3d 481, 492 (Ala.Civ.App.2009).