author: DONALDSON, Judge.

text:
    EX PARTE C.L.L.M.
    (In re C.L.L.M. v. A.D.L.)
    2170142
    Court of Civil Appeals of Alabama.
    January 12, 2018
    Harlan D. Mitchell, Athens, for petitioner.
   DONALDSON, Judge.

C.L.L.M. ("the father") petitions this court for a writ of mandamus directing the Limestone Circuit Court ("the trial court") to vacate the order transferring the action to the Juvenile Court of Tuscaloosa County. For the reasons set forth below, we deny the petition.

Background

The materials submitted by the parties indicate the following. On March 27, 2017, A.D.L. ("the mother") gave birth to L.T.L. ("the child") in a hospital in Madison County. On March 28, 2017, the mother executed forms relinquishing custody of the child to an organization in anticipation of adoption proceedings. On March 28, 2017, the father contacted the organization and expressed his objection to the adoption proceedings and his claim of paternity of the child. On April 4, 2017, the father filed a written notice of his intent to claim paternity of the child by registering with the Alabama Putative Father Registry. See § 26-10C-1, Ala. Code 1975.

On April 6, 2017, the father filed a petition against the mother in the trial court, seeking to establish paternity, to obtain custody of the child, and to receive child-support payments from the mother. See § 26-17-104, Ala. Code 1975; Brock v. Herd, 187 So.3d 1161, 1163-64 (Ala. Civ. App. 2015). In the petition, the father alleged that he and the mother were residents of Limestone County, that they had had sexual relations, and that they had resided together for two years until on or about March 10, 2017, when the mother vacated their residence. The father further alleged that, after the child was born, the mother and the child both tested positive for an illegal substance, that the mother left the hospital without taking the child with her, and that the mother was attempting to evade arrest for the charge of chemical endangerment of the child. The father also alleged that the mother took the action of placing the child for adoption without his knowledge.

On April 10, 2017, the trial court entered an order directing the father and the child to be tested for paternity under the supervision of the Limestone County Department of Human Resources.

On April 12, 2017, J.T.L. and K.D.L. ("the prospective adoptive parents") initiated an action to adopt the child in the Shelby Probate Court ("the adoption case"). The father filed an answer and a counterclaim in the adoption case, which is still pending.

On June 5, 2017, and June 21, 2017, the father filed motions in the trial court seeking an amended order for paternity testing. On June 29, 2017, the trial court entered an amended order for paternity testing. The results of the paternity testing indicate a 99.99% probability that the father is the biological father of the child.

On August 24, 2017, an attorney representing the child filed a motion in the trial court seeking to transfer the action to Tuscaloosa County. The motion included the following assertions: the child has resided in Tuscaloosa County with the prospective adoptive parents since the child's release from the hospital on April 9, 2017; the Shelby Probate Court entered an interlocutory order placing custody of the child with the prospective adoptive parents; the father has contested the prospective adoptive parents' petition to adopt the child; and the prospective adoptive parents are expected to initiate proceedings addressing issues related to the present action in, or to seek a transfer of another action with related issues to, a court with juvenile jurisdiction in Tuscaloosa County. The attorney representing the child filed a brief in support of the motion, asserting that Limestone County was an improper venue or, in the alternative, that the action should be transferred to Tuscaloosa County pursuant to the doctrine of forum non conveniens.

On August 25, 2017, the father filed an objection to the motion to transfer. His objection included the following assertions: he did not consent to an adoption of the child; the child lacked the capacity to file the motion to transfer; he filed the petition in the present action before the release of the child from the hospital; and both he and the mother reside in Limestone County. In addition to his request to dismiss the motion to transfer, the father requested that the trial court appoint a guardian ad litem for the child.

On October 6, 2017, without appointing a guardian ad litem, the trial court entered an order transferring the action to a court in Tuscaloosa County with juvenile jurisdiction. On October 30, 2017, the father filed the present petition for a writ of mandamus. An answer in opposition to the petition was filed by the attorney representing the child.

Standard of Review

"A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ' " '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' " ' Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999)."

Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995).

Discussion

The father contends in part that his mandamus petition should be granted because he has an "inalienable right" to be a parent to the child. In support, he cites § 26-17-202, Ala. Code 1975, which states: "A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other." The matter before us is the transfer of the action to another venue. The father does not explain how § 26-17-202 relates to the validity of the order he seeks to have us vacate. This argument, therefore, does not demonstrate a clear legal right to the vacation of the order transferring the action.

The father argues, without any citation to authority, that "[i]t is very clear that a five (5) month old child does not have the capacity to move or have standing before the Court unless his incapacity is cured by the appointment of a representative to protect his interests." We note that, "[i]f anything, the extraordinary nature of a writ of mandamus makes the Rule 21[, Ala. R. App. P.,] requirement of citation to authority even more compelling than the Rule 28[, Ala. R. App. P.,] requirement of citation to authority in a brief on appeal." Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001). From the materials before us, it does not appear that the child was made a party to the proceedings before the motion to transfer was filed. We observe that a child is a "permissible" but not a "necessary"

party to parentage proceedings. § 26-17-612(a), Ala. Code 1975. In his petition to this court, the father does not argue that the motion to transfer was inappropriately filed by a nonparty. Instead, the father argues that "the minor child (five (5) months of age) while having standing to maintain the proceeding, failed to cure his incapacity, as a minor," because no guardian ad litem had been appointed for the child before the transfer order was entered. In support of that contention, the father cites only § 26-17-602, Ala. Code 1975, which states, in pertinent part:

"[A] proceeding to adjudicate parentage may be maintained by:
"(1) the child;
"...
"(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor;
"...."

The father does not offer any relevant legal authority to support his position that the appointment of a guardian ad litem was required for the child in these circumstances or to demonstrate how such a failure compels the vacation of the transfer order. We note that § 26-17-612(b) provides that, in parentage proceedings, "[t]he court shall appoint a guardian ad litem to represent a minor ... child if the child is a party or the court finds that the interests of the child are not adequately represented." As noted, the child was not made a party to the proceedings, and the father does not present any argument that the child was inadequately represented, as required by § 26-17-612(b). The petitioner seeking a writ of mandamus has the affirmative burden to prove a clear legal right to the relief sought. Ex parte Children's Hosp. of Alabama, supra. The father has not established that a guardian ad litem was required to be appointed under § 26-17-612(b). Furthermore, the father has not established a clear legal right to the vacation of the order granting the motion to transfer based on the lack of an appointment of a guardian ad litem.

Regarding the merits of the order transferring the action, the father argues that Limestone County is a proper venue for the action pursuant to § 26-17-605, Ala. Code 1975. Although the order granting the motion to transfer does not specify which ground the trial court relied upon, the arguments advanced in the trial court by the attorney for the child apprised the father of two possible grounds for the granting of the motion. The brief in support of the motion to transfer first argues that Limestone County was an improper venue pursuant to § 26-17-605, which provides:

"Venue for a proceeding to adjudicate parentage is in the county of this state in which:
"(1) the child resides;
"(2) the defendant resides;
"(3) a proceeding for probate or administration of the presumed or alleged father's estate has been commenced; or
"(4) the plaintiff resides, only if the circumstances in subdivisions (1), (2), or (3) do not apply."

The other argument was that, in the event the trial court determined that Limestone County was a proper venue under § 26-17-605, the doctrine of forum non conveniens pursuant to § 6-3-21.1, Ala. Code 1975, required the transfer of the action to Tuscaloosa County for the convenience of the parties and witnesses or in the interest of justice. See § 6-3-21.1(b), Ala. Code 1975 ("The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6-3-20, Section 6-3-21, or Alabama Rules of Civil Procedure."); Ex parte Ford Motor Co., 47 So.3d 234, 240 n.5 (Ala. 2010) ("[N]othing prevents a defendant ... from filing a motion to transfer based on both grounds[, i.e., (improper venue and the doctrine of forum non conveniens),] as alternative arguments ....").

Section 6-3-21.1(a), Ala. Code 1975, provides, in relevant part:

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

Even if we agreed that Limestone County was a proper venue pursuant to § 26-17-605, the father does not sufficiently address the application of the doctrine of forum non conveniens to the order transferring the action to Tuscaloosa County, and that issue is waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is therefore waived."). Thus, the father has not established a clear legal right to the vacation of the order granting the motion to transfer. See Ex parte Sikes, 218 So.3d 839, 847 (Ala. Civ. App. 2016) (" 'This court is required to affirm a judgment if the appellant has waived any arguments regarding an alternative basis for the judgment.' " (quoting Drake v. Alabama Republican Party, 209 So.3d 1118, 1122 (Ala. Civ. App. 2016) )).

The father further asserts that the prospective adoptive parents were the actual persons who caused the motion to transfer to be filed, and he argues that they do not have standing in the action. The father does not cite legal authority in support of this argument. " Rule 21(a), Ala. R. App. P., requires that a petition to an appellate court for the writ of mandamus 'shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.' " Ex parte Showers, 812 So.2d at 281. Without an argument supported by legal authority, the father has not established a clear legal right to the relief sought.

Conclusion

Based on the foregoing, we hold that the father has not demonstrated a clear legal right to a writ of mandamus directing the trial court to vacate its order granting the child's motion to transfer the action. The petition for a writ of mandamus, therefore, is due to be denied.

PETITION DENIED.

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

      We note that any party to these proceedings is entitled to be represented by counsel. § 26-17-613(a), Ala. Code 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ALABAMA DEPARTMENT OF REVENUE v. WESTPOINT HOME, LLC, as successor in interest to WestPoint Stevens, Inc.
    Alabama Department of Revenue v. WestPoint Home, LLC, as successor in interest to WestPoint Stevens Stores, Inc.
    2160526 2160527
    Court of Civil Appeals of Alabama.
    January 26, 2018
    Pamela B. Slate and James E. Beck III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellant.
    Ed R. Haden of Balch & Bingham LLP, Birmingham; and Herbert Beigel, Tucson, Arizona, for appellees.
   PER CURIAM.

In these consolidated appeals, the Alabama Department of Revenue ("ADOR") seeks appellate review of an order entered by the Montgomery Circuit Court, after an ore tenus proceeding, in two judicial-review proceedings initiated by WestPoint Home, LLC ("WPH"), the successor to two former foreign corporations, WestPoint Stevens, Inc. ("WPS"), and WestPoint Stevens Stores, Inc. ("WPSS"), that had sought refunds from ADOR of certain franchise-tax payments made before the United States Supreme Court held that tax unconstitutional in South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999), rev'g South Central Bell Telephone Co. v. State, 711 So.2d 1005 (Ala. 1998). We dismiss each appeal as not having been taken from a final judgment.

The record reveals that both WPS and WPSS initially filed requests with ADOR for refunds of franchise taxes paid by those entities during the 1996-1998 tax years in November 1998, within two months of the United States Supreme Court's grant of certiorari review in South Central Bell Telephone Co. v. Alabama in September 1998 (see 524 U.S. 981, 119 S.Ct. 30, 141 L.Ed.2d 790 (1998) ). In May 1999, WPS and WPSS filed refund requests as to their 1999 franchise-tax payments; WPSS also filed a refund request as to its 1995 franchise-tax payment, and WPS filed a request seeking refunds of its 1993-1995 franchise-tax payments. All of those petitions were deemed denied as a matter of law six months following their having been filed, see Ala. Code 1975, § 40-2A-7(c)(3), and WPS and WPSS thereafter timely filed notices of appeal to the Administrative Law Division of ADOR in August 2000. See generally Rheem Mfg. Co. v. Alabama Dep't of Revenue, 33 So.3d 1, 2 nn. 1-2 (Ala. Civ. App. 2009) (discussing "deemed denial" and former mechanisms and timeframes for seeking judicial review in the ADOR Administrative Law Division of ADOR denials of tax-refund petitions). The administrative appeals were held in abeyance pending proceedings on remand in South Central Bell and were also delayed by the filing of petitions on behalf of both WPS and WPSS for protection under the United States Bankruptcy Code. WPH purchased the assets of both WPS and WPSS in connection with those bankruptcy matters and filed motions in the administrative appeals to be substituted as the real party in interest. During the administrative proceedings, ADOR opposed the substitution of WPH as a party and averred that the refund claims were barred by judicial estoppel because, ADOR said, they had not been disclosed to the court presiding over the bankruptcy proceedings involving WPS and WPSS. The Administrative Law Division of ADOR entered a final, one-page order on April 10, 2014, denying the motion to substitute and dismissing the refund appeals with prejudice by reference to the arguments advanced by ADOR in its administrative filings.

Pursuant to former Ala. Code 1975, § 40-2A-9(g)(1) a., WPS and WPSS filed separate notices of appeal on April 28, 2014, to the Montgomery Circuit Court seeking de novo review of the decision of the ADOR Administrative Law Division and again sought substitution of WPH as the real party in interest in each matter. ADOR moved to dismiss the appeals because, it said, WPS and WPSS had not timely served the Commissioner of ADOR and the Attorney General. After holding a de novo trial, the circuit judge to whom the cases were initially assigned retired from judicial service, and that judge's successor, after a review of the administrative record and the evidence adduced by the parties in the circuit court, issued a three-page order, which was entered in each case, in February 2017 determining that (a) ADOR was required to provide an adequate remedy at law with respect to the unconstitutional foreign franchise-tax collections condemned in South Central Bell, (b) the refund petitions were not precluded by applicable law (including judicial estoppel), (c) WPH, as successor to WPS and WPSS, was "entitled to recover an amount claimed in [the] refund petitions along with statutory interest," and (d) the amount due to be awarded to WPH was due to be reduced by $100 per year (i.e., the amount that the circuit court determined that WPS and WPSS would have paid as franchise taxes each year in question had they been domestic corporations). Notably, there is no indication in the order as to precisely what interest, prejudgment or postjudgment, WPH would be entitled to recover on behalf of its predecessors.

ADOR appealed from the trial court's order entered in both appeals. It contends that the trial court erred in granting each of the refund petitions at issue because, it says, the provisions of Rule 4(c)(7), Ala. R. Civ. P., pertaining to service of process upon state agencies was not followed, the refund petitions are barred by the doctrine of judicial estoppel, some of the refund petitions were not timely filed, and WPH failed to prove its damages. It has not contended that WPH is not currently the real party in interest in the two tax-refund cases.

It is a settled jurisprudential principle that an appellate court must initially consider whether it has jurisdiction to hear and decide an appeal: "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). Under Ala. Code 1975, § 12-22-2, an appeal will lie to the appropriate appellate court, within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure, from any final judgment of a circuit court. Although ADOR classifies the trial court's order entered in the appeals taken by WPS and WPSS by and through WPH as such a final judgment, we must conclude that that characterization is not accurate.

In Young v. Sandlin, 703 So.2d 1005 (Ala. Civ. App. 1997), this court considered whether an order entered by a trial court granting a plaintiff's summary-judgment motion was a final judgment. The complaint filed in Young had asserted that credit-life-insurance proceeds had been improperly paid to discharge a debt incurred by someone other than the named insured and had sought compensatory damages of $25,232.09, interest, punitive damages, and costs; the trial court's summary-judgment order, however, simply stated that the recipient was " 'obligated to repay the life insurance proceeds to' " the estate of the deceased named insured without determining the issue of damages or other relief. 703 So.2d at 1007. Although the trial court in Young sought to direct the entry of a final judgment as to its summary-judgment order pursuant to Rule 54(b), Ala. R. Civ. P., this court rejected the premise that a final judgment had thereby been entered:

"However, the trial court's summary judgment for the Estate awards no relief. First, the summary judgment does not assess a specific amount of compensatory damages, but states only that Young 'is legally obligated to repay the life insurance proceeds' to the Estate. This amount is not determinable from the face of the judgment, but only from extraneous facts. The Alabama Supreme Court has held that '[a] judgment for damages to be final must ... be for a sum certain determinable without resort to extraneous facts.' Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala. 1977) (quoting Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976) ).
"Moreover, the judgment does not award punitive damages, interest, or costs to which the Estate may be entitled .... Here, the judgment failed to address numerous issues concerning the compensatory and punitive damages and other legal and equitable relief potentially inuring to the benefit of the Estate, the prevailing party in this case.
"In Ford Motor Co. v. Tunnell, 641 So.2d 1238 (Ala. 1994), the Alabama Supreme Court stated the following pertinent principles governing the finality of judgments under § 12-22-2 :
" 'This Court has defined a final judgment as "a terminative decision by a court of competent jurisdiction which demonstrates there has been a complete adjudication of all matters in controversy between the litigants within the cognizance of that Court. That is, it must be conclusive and certain in itself." Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala. 1976). Further, we had stated: "All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own." Jewell, 331 So.2d at 625.'
" 641 So.2d at 1240. The summary judgment in this case does not assess the Estate's damages at all, much less with the conclusiveness and specificity required by Tunnell. 'That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.' 'Automatic' Sprinkler Corp. of Am. v. B.F. Goodrich Co., 351 So. 2d 555, 557 (Ala. 1977)."

Young, 703 So.2d at 1007-08 (emphasis added and omitted). Accord Bacadam Outdoor Advertising, Inc. v. Kennard, 721 So.2d 226 (Ala. Civ. App. 1998) (dismissing appeal in detinue action when damages due prevailing party had not been specifically determined); Ex parte Bessemer Bd. of Educ., 68 So.3d 782, 787-88 (Ala. 2011) (determining that trial court's order directing certain defendants to pay " 'the correct salary ... calculated in the manner that' " plaintiffs had sought plus interest was not a final judgment that would support an appeal).

In these cases, the trial court has simply stated in its order that WPH, as successor to WPS and WPSS, "is entitled to recover an amount claimed in" the various refund petitions filed by WPS and WPSS, less $100 per year per taxpayer. To determine what those amounts are requires poring over 12 volumes of administrative and judicial records to locate the original refund petitions. Further, the bare reference of the order at issue in these cases to WPH's entitlement to "statutory interest" parallels the order deemed nonfinal in Bessemer Board of Education in that neither order "set the amount of interest or the specific date from which the interest was awarded." 68 So.3d at 788 n.5. We thus readily conclude that the trial court's three-page order does not amount to a conclusive determination of all the issues so as to amount to a final judgment. See Swindle v. Swindle, 157 So.3d 983, 989 (Ala. Civ. App. 2014).

" 'The rationale behind a rule requiring a judgment to be definite and certain is that the rights and liabilities of the parties to the action must be able to be determined, and the unsuccessful party may readily understand and be capable of performing that which he is ordered to do, from the judgment itself. Additionally, a sheriff or other executing officer must know how much money or property to seize in order to satisfy the debt. If the decree or judgment is silent or ambiguous as to the amount, execution would not be proper.' "

Id. (quoting Lenz v. Lenz, 222 Neb. 85, 90-91, 382 N.W.2d 323, 327 (1986) ).

The appeals of ADOR to this court from the trial court's order entered in the de novo judicial-review proceedings initiated by WPH, as the successor to the rights of WPS and WPSS, are, for the reasons stated herein, dismissed, albeit without prejudice to appellate review of any subsequent final judgment that may be entered by that court in the course of its proceedings after the issuance of this court's certificates of judgment.

2160526-APPEAL DISMISSED.

2160527-APPEAL DISMISSED.

All the judges concur.

      The judicial-review proceedings were initiated in April 2014, at which time § 40-2A-9, Ala. Code 1975, governed judicial review by circuit courts of taxpayer-refund claims adjudicated in the first instance by ADOR. Thus, the provisions of § 40-2B-1 et seq., Ala. Code 1975, providing for adjudication of such claims by the Alabama Tax Tribunal, do not apply.

      We would here draw particular attention to the candid concession of counsel for WPH in its brief on appeal that all refund claims for tax years preceding 1996 are time-barred.


text:
    Kevin MOORE v. Aisha J. GRIFFIN
    2160498
    Court of Civil Appeals of Alabama.
    January 26, 2018
    Melissa Isaak and Nichole Woodburn of The Isaak Law Firm, Enterprise, for appellant.
    Victoria D. Relf of The Relf Law Firm, LLC, Montgomery, for appellee.
   PER CURIAM.

Kevin Moore ("the father") appeals from a judgment of the Domestic Relations Division of the Montgomery Circuit Court that dismissed his complaint seeking custody of K.S.M. ("the child"), a minor child born out of wedlock to Aisha J. Griffin ("the mother"). For the reasons stated herein, we vacate the judgment and remand the cause for transfer to the Montgomery Juvenile Court.

The record reflects that the child was born in 2007 and that, just after the child's birth, the father executed an affidavit of paternity and was identified on the child's birth certificate as the child's father. In July 2015, the State of Alabama, on behalf of the mother, brought an action in the Montgomery Juvenile Court seeking the collection of child support from the father ("the child-support action"); the child-support action was docketed as case no. CS-15-900425. The complaint in the child-support action noted that the mother was the custodian of the child and had assigned her support rights to the State of Alabama. In September 2015, after a hearing at which, among other things, the father appeared pro se, a juvenile-court referee determined that the father had a duty to support the child and directed him to pay child support pursuant to Rule 32, Ala. R. Jud. Admin., which contains Alabama's child-support guidelines; those determinations were thereafter approved and confirmed by the juvenile-court judge.

In December 2015, the father filed a pleading in the Domestic Relations Division of the Montgomery Circuit Court seeking, among other things, custody of the child. The father averred that he had been adjudicated as the child's father in the child-support action, that the mother was in a current relationship with J.M., a man who had purportedly abused the mother and the children living at the mother's residence, that J.M. had fired a weapon at the mother and had been incarcerated because of that action, and that the father was in fear of the child's safety and welfare. The father's action was assigned case no. DR-15-901022 ("the custody action"). The mother initially filed an answer and a counterclaim for custody; however, in January 2017, she filed a motion to dismiss all claims in the custody action based upon an alleged lack of subject-matter jurisdiction and a failure on the part of the father to state a claim upon which relief could be granted, citing subsections (b)(1) and (b)(6) of Rule 12, Ala. R. Civ. P. The mother contended in her motion to dismiss that the judgment of the juvenile court in the child-support action amounted to a determination of the mother's custodial rights to the child; she cited M.R.J. v. D.R.B., 17 So.3d 683 (Ala. Civ. App. 2009), and T.B. v. C.D.L., 910 So.2d 794, 795 (Ala. Civ. App. 2005), in support of her contention. The father filed a response in opposition to the motion to dismiss, averring, among other things, that the line of cases relied upon by the mother was "judicially created law" that violated his parental rights and his right of due process to notice. After a hearing at which counsel for the parties presented arguments, the circuit court entered an order granting the mother's motion and dismissing the parties' claims in the custody action. The father timely appealed from that judgment.

To the extent that the circuit court's judgment is based upon Rule 12(b)(6), Ala. R. Civ. P., we cannot agree with the mother's position, which was apparently adopted by the circuit court, that the father's complaint was insufficient to state a valid claim. Even before the 1973 effective date of the Alabama Rules of Civil Procedure, our supreme court had held that "[n]icety in pleading" was not required in child-custody matters, see Brown v. Jenks, 247 Ala. 596, 597, 25 So.2d 439, 440 (1946), and the standard under those rules that has since prevailed, requiring only "a short and plain statement" of entitlement to relief ( Rule 8(a)(1), Ala. R. Civ. P.), is, if anything, more lenient. See Dockins v. Dockins, 475 So.2d 571, 572 (Ala. Civ. App. 1985) ("Any pleading which shows upon its face that the welfare of a [minor child] requires an order with respect to its custody or support is sufficient ...."). Here, the father alleged that the ongoing presence of the mother's paramour amounted to a threat to the mother and to the child that would warrant an award of the child's custody to the father; regardless of the substantive burden properly due to be applied by a court of competent jurisdiction to the father's custody claim, we cannot conclude that the father, under any provable set of facts or cognizable theories of law, would not be entitled to prevail. See generally Berryman v. Berryman, 816 So.2d 43, 45 (Ala. Civ. App. 2001) (discussing standard of review applicable to judgments of dismissal under Rule 12(b)(6) ).

However, despite our conclusion that the father stated a valid claim upon which relief might properly be granted, we are compelled to also conclude that, under the facts of this case, the custody action was properly challenged by the mother under Rule 12(b)(1), Ala. R. Civ. P., as being outside the circuit court's subject-matter jurisdiction. The facts of this case parallel those of Ex parte Washington, 176 So.3d 852 (Ala. Civ. App. 2015), in which the State prevailed in an action in juvenile court seeking child support from a father of a child born out of wedlock, after which that father filed a domestic-relations action in the circuit court seeking to " 'establish custody.' " 176 So.3d at 853. The father in Washington then sought mandamus review in this court of certain orders entered in the domestic-relations action; however, this court, ex mero motu, dismissed the petition as having sought review of void orders of the circuit court. 176 So.3d at 854. We reasoned:

"A juvenile court has original jurisdiction over actions to establish paternity. § 12-15-115(a)(6), Ala. Code 1975. Section 12-15-115(a)(7), Ala. Code 1975, provides that juvenile courts have original jurisdiction in '[p]roceedings to establish, modify, or enforce support, visitation, or custody when a juvenile court previously has established parentage.' Our supreme court has held that an order requiring a man to pay child support is an implicit judicial determination of paternity. See Ex parte State ex rel. G.M.F., 623 So.2d 722, 723 (Ala. 1993) (holding that an order requiring a man to pay child support was an implicit 'judicial determination of paternity qualifying for res judicata finality'). Likewise, this court has determined that an award of support to one parent constitutes an implicit award of custody to that parent. See T.B. v. C.D.L., 910 So.2d 794, 796 (Ala. Civ. App. 2005) ; M.R.J. v. D.R.B., 17 So.3d 683, 686 (Ala. Civ. App. 2009).
"In this case, the limited materials submitted to us indicate that the juvenile court has previously entered a judgment ordering the father to pay child support to the mother; thus, the juvenile court has made implicit determinations as to paternity and custody .... Pursuant to § 12-15-117(c), Ala. Code 1975, the juvenile court 'shall retain jurisdiction over an individual of any age to enforce or modify any prior orders of the juvenile court unless otherwise provided by law....'
"Because the materials submitted to us indicate that the juvenile court has entered judgments regarding support and custody of the child, it 'shall retain jurisdiction' to modify those orders. Therefore, the juvenile court, not the circuit court, has jurisdiction over the father's petition for custody in this case. Id."

176 So.3d at 853-54.

In this appeal, the father does not question the circuit court's interpretation of the T.B. line of cases as mandating dismissal of the custody action. Rather, among other things, he asks this court to overrule T.B.; asserts that implicit-custody-award precedents such as T.B. run afoul of various Alabama statutes and court rules; and complains that applying the implicit-custody-award precedents places him at a legal disadvantage in seeking custody because of the application of the material-promotion standard espoused by our appellate courts following Ex parte McLendon, 455 So.2d 863 (Ala. 1984). However, as the mother correctly notes in her brief, none of these issues was raised in the circuit court: the sole issues raised by the father in his response to the mother's motion to dismiss were that T.B. and its progeny violated his parental rights and his due-process right to notice. "[A]n appellate court may not reverse a judgment on a ground or argument not advanced before the trial court." Johnson v. Investment Co. of the South, 869 So.2d 1156, 1163 (Ala. Civ. App. 2003).

The record reflects that, in the child-support action, the complaint contained averments that placed the father on notice that the mother claimed to be the custodian of the child entitled to support and a prayer for relief that the father be directed to "pay an amount as determined by the Child Support Guidelines toward the support and maintenance of" the child as well as any retroactive support "for any period of time in which the [father] owed a legal duty of support and failed to pay." A Unified Judicial System notice (Form CS-2) was also sent to the father noting the pendency of the child-support action, specifically stating that a claim had been asserted that the father had "a legal duty to support" the child, informing the father that "THIS IS AN IMPORTANT LEGAL PROCEEDING" and that he should "NOT DISREGARD THESE PAPERS," and suggesting that the father should seek the advice of an attorney if he required assistance in responding to the complaint. (Capitalization in original.)

The judgment entered in the child-support action, which ratified and confirmed the findings and recommendations of the juvenile-court referee, indicates that the father was present at the final hearing along with the mother and a deputy district attorney to represent the interests of the State. The judgment further contains the juvenile court's determinations that the father had a duty of support as to the child; that the father should pay both prospective and retroactive child support "in compliance with" Rule 32, Ala. R. Jud. Admin.; that no deviations from those guidelines were warranted; and that a rehearing might be sought by "[a]ny party not satisfied with this decision." The juvenile court's references to the father's child-support obligation as having been determined in a manner consistent with the child-support guidelines, with no deviations therefrom, indicate that the father, despite the admonitions to him in the Form CS-2, did not take advantage of his opportunity in the child-support action to be heard on whether he was entitled, under Rule 32(A)(1)(a), Ala. R. Jud. Admin., to a downward deviation from the guidelines stemming from an alleged "shared physical custody" arrangement as to the child contrary to the averments of the complaint regarding the mother's custodial status. Procedural due process requires that one opportunity be afforded to present evidence and arguments as to a disputed issue, see C.E. v. M.G., 169 So.3d 1061, 1068 (Ala. Civ. App. 2015), and "[w]e will not reverse the judgment of the trial court because the [father] failed to take advantage of the notice and the opportunity to be heard that was provided to [him]." Edwards v. Edwards, 79 So.3d 629, 633 (Ala. Civ. App. 2010).

Having determined that the father's notice objections do not warrant reversal of the judgment of dismissal, we also reject the father's contention that the judgment of dismissal entered in the custody action violated his parental rights. At the time the juvenile court, in the child-support action, determined whether the father had a duty to support the child and whether the mother had a correlative right to receive support from the father, that court "settle[d] a dispute between persons with arguably equal constitutional rights using neutral factors," Gallant v. Gallant, 184 So.3d 387, 399 (Ala. Civ. App. 2014), and the interest of the State in providing a peaceful resolution of such controversies touching and concerning the relative rights of parents as to their children provides a sufficient justification for adhering to precedents setting forth the presumed legal effects of a judgment awarding support to a parent of a child. See id. Although it may be true, as counsel for the father insisted at the hearing on the mother's motion to dismiss, that, in general, "dads don't know their rights," it is not thereby incumbent on courts of this state to act in a manner inconsistent with precedents addressing the effect of a judgment entered in a child-support proceeding to reward obligor parents with a second bite at the apple-i.e., an opportunity to assert parental rights that were not previously asserted.

Based upon the facts and authorities set forth herein, the circuit court, although incorrectly determining that the father's complaint in the custody action failed to state a valid claim, nonetheless correctly concluded that the custody action fell outside its subject-matter jurisdiction. However, the sanction of dismissal imposed by that court is not consistent with recent appellate precedent interpreting Ala. Code 1975, § 12-11-11. See Williams v. Minor, 202 So.3d 676, 678-79 (Ala. Civ. App. 2016) (directing circuit court to transfer to juvenile court custody-modification action that should have been filed in juvenile court; citing Ex parte E.S., 205 So.3d 1245 (Ala. 2015), for proposition that, under § 12-11-11, "a court has an obligation to transfer a case outside its subject-matter jurisdiction to an appropriate court within the same county should such a court exist"). We therefore vacate the circuit court's judgment of dismissal and remand the cause for the circuit court to transfer the cause to the Montgomery Juvenile Court for disposition.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

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

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

      In Montgomery County, a child-support action docketed with a "CS" case number is a juvenile-court action, although it must, by local law, be assigned to a circuit-court judge of the domestic-relations division sitting as a juvenile-court judge. See M.R.J. v. D.R.B., 17 So.3d 683, 684 n.1 (Ala. Civ. App. 2009).

      We note that, unlike the situation in Ex parte F.T.G., 199 So.3d 82 (Ala. Civ. App. 2015), the circuit court in this case had no independent basis, such as a divorce claim, for adjudicating custody matters and that the opposing party (here, the mother) timely objected to the circuit court's jurisdiction before the entry of a final judgment.


author: MOORE, Judge.

text:
    Anthony KEITH, Ronald C. Smith, Esther Calhoun, William T. Gipson, and Latonya J. Gipson v. Lance R. LEFLEUR, in his official capacity as Director of the Alabama Department of Environmental Management, and Alabama Department of Environmental Management
    2160598
    Court of Civil Appeals of Alabama.
    January 26, 2018
    David A. Ludder, Tallahassee, Florida, for appellants.
    Steve Marshall, atty. gen., and S. Shawn Sibley and Paul Christian Sasser, Jr., asst. attys. gen., Alabama Department of Environmental Management, for appellees.
   MOORE, Judge.

Anthony Keith, Ronald C. Smith, Esther Calhoun, William T. Gipson, and Latonya J. Gipson ("the plaintiffs") appeal from a judgment of the Montgomery Circuit Court ("the trial court") dismissing their complaint against Lance R. LeFleur, in his official capacity as Director of the Alabama Department of Environmental Management ("the director"), and the Alabama Department of Environmental Management ("ADEM"). We affirm the judgment in part and reverse it in part.

Procedural History

On January 9, 2017, the plaintiffs filed a complaint in the trial court against the director and ADEM, seeking declaratory and injunctive relief. They asserted, among other things, that the operating conditions approved by ADEM for certain landfills and wastewater-treatment facilities in their respective areas generate offensive odors and disease vectors that invade the property or home of each of the plaintiffs and diminish their health, quality of life, enjoyment of their property, and property value. The plaintiffs asserted that, like a majority of those people living within a mile of the facilities at issue, they are "Black/African-American" and that they had been subjected to the asserted conditions and discrimination because of their race.

The plaintiffs asserted in their complaint that a federal regulation prohibits a recipient of financial assistance from the United States Environmental Protection Agency ("the EPA"), like ADEM, from using criteria or methods of administering its programs or activities that subject individuals to discrimination because of their race or color, among other things. See 42 U.S.C. § 2000; 40 C.F.R. § 7.35(b). They asserted that each recipient of the EPA's financial assistance is required to adopt grievance procedures to assure the prompt and fair resolution of complaints that allege a violation of that regulation. See 42 U.S.C. § 2000; 40 C.F.R. § 7.90(a). According to the complaint, to comply with the requirement that ADEM adopt grievance procedures, the director, or one of his predecessors, developed and adopted a document entitled "Memorandum 108: Procedure for Title VI or Environmental Justice Filing of Discrimination Complaints" on or about October 18, 2004, and another document entitled "ADEM Civil Rights and Environmental Justice Complaint Reporting and Investigating Process" on or about April 12, 2016 (hereinafter referred to collectively as "the documents").

In count I of the complaint, the plaintiffs asserted that the documents are "rules," as defined in Ala. Code 1975, § 41-22-3(9), and that they were adopted without substantial compliance with the notice and comment requirements of the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, and the notice and hearing requirements of the Alabama Environmental Management Act ("the AEMA"), Ala. Code 1975, § 22-22A-1 et seq., and that, as a result, the documents are invalid. Specifically, the plaintiffs asserted that the documents were adopted by the director or one of his predecessors without substantial compliance with Ala. Code 1975, § 41-22-5, which requires publication of notice of proposed rules before adoption and requires that all interested persons be given the opportunity to submit data, views, or arguments thereon before adoption, and that § 41-22-5(d), Ala. Code 1975, indicates that any rules adopted after October 1, 1982, are invalid "unless adopted in substantial compliance with this section." The plaintiffs further asserted in their complaint that the documents cannot be invoked by ADEM until all notices required by § 41-22-5 have been given. See § 41-22-4(b), Ala. Code 1975. They asserted that the adoption of the documents without substantial compliance with § 41-22-5 interferes with or impairs their legal rights to submit data, views, or arguments thereon and that the invalidity of the documents "threatens to interfere with or impair [their] interest in filing administrative complaints of discrimination that are cognizable" by ADEM and in obtaining valid administrative resolutions of their complaints that certain actions by ADEM had resulted in discrimination. The plaintiffs asserted that, but for the invalidity of the documents, they would utilize applicable procedures and processes to seek administrative resolutions of their complaints that ADEM's actions have resulted in discrimination. Finally, they asserted that, if the trial court were to grant the relief sought, "it is likely that [ADEM] will undertake efforts to adopt valid rules prescribing procedures and processes to comply with" federal regulations and would allow the plaintiffs to seek and obtain valid administrative resolutions of their complaints to ADEM.

The plaintiffs applied much of that same reasoning to counts II through V. In count II, the plaintiffs asserted that the documents were adopted without substantial compliance with Ala. Code 1975, § 22-22A-8, which requires publication of notice on proposed rules, and that the documents are invalid as a result.

In count III, the plaintiffs asserted that the documents promulgate rules for ADEM, which are required by § 22-22A-8(a) to be adopted and promulgated by the Environmental Management Commission ("the EMC") of ADEM. Because the documents were adopted and promulgated by the director or one of his predecessors, rather than the EMC, the plaintiffs asserted that they are invalid.

In count IV, the plaintiffs asserted that the documents are "environmental policies" as that term is used in Ala. Code 1975, §§ 22-22A-5(3) and 22-22A-6(a)(3) ; that, according to § 22-22A-6(a)(3), it is the duty of the EMC to develop environmental policy for the state; and that, because the director or one of his predecessors, rather than the EMC, developed and adopted the documents, the documents are invalid.

In count V, the plaintiffs asserted that no statute authorized ADEM to adopt rules such as those adopted in the documents and, thus, the documents prescribe procedures and processes that are in excess of the statutory authority granted to ADEM and are invalid.

In count VI, the plaintiffs argued that ADEM is not authorized to grant variances, exceptions, or exemptions from the Solid Wastes and Recyclable Materials Management Act, Ala. Code 1975, § 22-27-1 et seq., or to approve the use of "alternative cover material" at landfills and, accordingly, they argued, Ala. Admin. Code (ADEM), Rules 335-13-4-.15(2), 335-13-4-.22(1)(a)1., and 335-13-4-.23(1)(a)1., are invalid. They argued that implementation of those allegedly invalid rules "threaten" to interfere with or impair their rights not to suffer offensive odors and disease vectors associated with the use of those materials.

On February 13, 2017, the director and ADEM filed a motion to dismiss, asserting, among other things, that the plaintiffs had first attempted to overturn certain guidance documents and to challenge regulations in the Montgomery Circuit Court in case no. CV-16-900939, and that that action had been dismissed based on the director and ADEM's assertions of nonjusticiability, the plaintiffs' lack of standing to challenge the guidance documents, the plaintiffs' challenge to the regulations being a disguised attempt to bypass the appeal process, and ADEM's being protected by sovereign immunity. The director and ADEM asserted that the present case should also be dismissed for those same reasons. The plaintiffs responded to the motion to dismiss on March 10, 2017. On March 17, 2017, the case was reassigned to a different judge. On April 12, 2017, the trial court entered an order indicating that, having considered the motion to dismiss and the arguments of the parties at a hearing dated April 10, 2017, that motion was due to be granted, and the matter was dismissed. The plaintiffs filed their notice of appeal to the Alabama Supreme Court on April 25, 2017, and that court transferred the appeal to this court after determining that the case was within this court's appellate jurisdiction. This court subsequently transferred the appeal back to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

In Pontius v. State Farm Mutual Automobile Insurance Company, 915 So.2d 557, 563 (Ala. 2005), our supreme court outlined the standard of review in cases in which a motion to dismiss alleges a lack of standing:

"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:
" '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.'
" 878 So.2d at 1148-49."

See also Ayers v. Clark, 106 So.3d 409, 410-11 (Ala. Civ. App. 2012).

Analysis

On appeal, the plaintiffs argue that the trial court did not lack subject-matter jurisdiction over their claims because, they say, they made a sufficient showing that they have standing to proceed with those claims.

"A party establishes standing to bring a ... challenge ... 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). A party must also demonstrate that 'he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.' Warth [v. Seldin ], 422 U.S. [490,] 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 [ (1975) ]."

Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala. 2003). See also Ex parte Alabama Educ. Television Comm'n, 151 So.3d 283, 287 (Ala. 2013).

ADEM and the director argue in their brief on appeal, as they did in their motion to dismiss before the trial court, that the plaintiffs' injuries are not fairly traceable to the documents. Specifically, they assert that the plaintiffs fail to allege a connection between their asserted exposure to offensive odors and disease vectors resulting from their race and the documents. The plaintiffs appear to define their injury, however, as an inability to file complaints and receive a valid resolution thereon because, they argue, the documents are invalid. In that regard, the invalid adoption of the documents is directly related to the plaintiffs' inability to file a valid complaint. ADEM and the director assert, however, that the plaintiffs fail to allege a connection between their alleged procedural injuries and a separate concrete interest.

In Summers v. Earth Island Institute, 555 U.S. 488, 490-91, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009), a group of organizations dedicated to protecting the environment filed a complaint challenging the failure of the United States Forest Service to apply its regulations that require prior notice, public comment, and an appeals process to certain projects, including, specifically, a salvage sale of timber damaged by fire known as the Burnt Ridge Project. A preliminary injunction was granted prohibiting the Burnt Ridge salvage-timber sale, and, shortly thereafter, the parties settled their dispute over the Burnt Ridge Project, which was then no longer at issue in the case. Id. at 491, 129 S.Ct. 1142. With that issue resolved, the government argued that the organizations lacked standing to challenge the regulations that purportedly did not afford the proper notice because there was no longer a concrete dispute over a particular project. Id. at 491-92, 129 S.Ct. 1142. The United States Supreme Court stated that "generalized harm to the forest or the environment will not alone support standing" and that it knew "of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action ..., apart from any concrete application that threatens imminent harm to his interests." Id. at 494, 129 S.Ct. 1142. To the extent that the organizations argued that they had suffered a procedural injury-i.e., had been denied the ability to file comments on certain Forest Service actions and would continue to be so denied-the United States Supreme Court observed that the "deprivation of a procedural right without some concrete interest that is affected by the deprivation ... is insufficient to create ... standing." Id. at 496, 129 S.Ct. 1142.

In Lujan v. Defenders of Wildlife, 504 U.S. 555, 558, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the United States Supreme Court considered whether organizations dedicated to wildlife conservation and other environmental causes had standing to challenge the application of a federal regulation intended to protect species of animals. The United States Supreme Court indicated in Lujan that an "injury in fact" is "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) 'actual or imminent, not "conjectural" or "hypothetical." ' " Id. at 560, 112 S.Ct. 2130.

In the present case, unlike in Summers, the deprivation of the plaintiffs' ability to file a valid complaint is related to their concrete interest in curbing their exposure to offensive odors and disease vectors as a result of their race and in receiving a valid resolution of their complaint. The threat is actual or imminent, as required by Lujan, because the plaintiffs' ultimate injury is current and ripe to be addressed. Thus, the plaintiffs have met their burden of showing a connection between their injury, i.e., their inability to file a valid complaint and to receive a valid resolution of the complaint, and the conduct complained of, i.e., the director and ADEM's alleged promulgation of rules that do not comply with statutory directives.

Although the director and ADEM did not directly address the redressability of the plaintiffs' claims, we do so out of an abundance of caution. The plaintiffs cite Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), in support of their assertion that their injuries are likely to be addressed in the event of a favorable decision. In that case, the United States Supreme Court stated, in pertinent part:

"To ensure the proper adversarial presentation, Lujan [v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992),] holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. See id., at 560-561, 112 S.Ct. 2130. However, a litigant to whom Congress has 'accorded a procedural right to protect his concrete interests,' id., at 572, n.7, 112 S.Ct. 2130 -here, the right to challenge agency action unlawfully withheld, [ 42 U.S.C.] § 7607(b)(1) -'can assert that right without meeting all the normal standards for redressability and immediacy,' ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Ibid.; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F.3d 89, 94-95 (C.A.D.C. 2002) ('A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result')."

Id. at 517-18, 127 S.Ct. 1438.

In the present case, the plaintiffs assert that, if the trial court were to invalidate the documents promulgated by the director and ADEM, those parties would likely promulgate additional rules to comply with federal regulations that require the adoption of grievance procedures for agencies like ADEM that receive federal funding. We agree with the plaintiffs that, if the trial court were to invalidate the documents at issue in the present case, it is likely that the director and ADEM would issue rules in compliance with the requirements related to the agency's federal funding. Although there is no guarantee that the promulgation of rules adopting appropriate grievance procedures will be performed in compliance with all relevant statutes, we conclude, in light of Massachusetts v. Environmental Protection Agency, that "there is some possibility that the requested relief will prompt" the director and ADEM to reconsider the manner in which such rules are enacted. Id. at 518, 127 S.Ct. 1438. Accordingly, we conclude that the plaintiffs have met the standing requirements necessary to proceed with their complaint.

The director and ADEM also asserted in their motion to dismiss, and they assert again on appeal, that the plaintiffs have no legally protected interest in applying 40 C.F.R. § 7.35(b) and § 7.90(a). The director and ADEM cite Alexander v. Sandoval, 532 U.S. 275, 293, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), in which the Supreme Court of the United States concluded that there is no private right of action to enforce federal regulations promulgated under § 602 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The plaintiffs addressed 40 C.F.R. § 7.35(b) and § 7.90(a) in the factual-background section of their complaint, indicating that those regulations prohibit a recipient of financial assistance from the EPA, like ADEM, from using criteria or methods of administering its programs or activities that subject individuals to discrimination because of their race or color, among other things, and require agencies like ADEM to adopt grievance procedures to assure the prompt and fair resolution of complaints that allege a violation of those regulations. See 42 U.S.C. § 2000; 40 C.F.R. § 7.90(a). In Alexander, a class of Alabama citizens sought to enjoin a policy of the Alabama Department of Public Safety that, the class argued, violated § 601 and § 602 of Title VI of the Civil Rights Act of 1964, to which the Department of Public Safety was subjected by virtue of grants of financial assistance it had accepted from the federal government. 532 U.S. at 278, 121 S.Ct. 1511. The United States Supreme Court concluded that Title VI did not provide the class with a private cause of action to enforce those statutes. Id. at 293, 121 S.Ct. 1511.

In the present case, the plaintiffs do not seek to directly enforce 40 C.F.R. § 7.35(b) and § 7.90(a). Rather, the plaintiffs seek to enforce state statutes; they asserted in their complaint that the director and ADEM's promulgation of the documents violated the AAPA and the AEMA, rather than the federal regulations. In Ex parte Legal Environmental Assistance Foundation, Inc., 832 So.2d 61 (Ala. 2002), the Alabama Supreme Court reversed a summary judgment, which had been entered in favor of ADEM following the filing of a complaint by an organization that had challenged the promulgation of certain rules, based on ADEM's purported failure to fulfill certain requirements of the AAPA and the AEMA. Thus, our supreme court clarified that the organization in Ex parte Legal Environment Assistance Foundation had a private right of action to enforce public-notice requirements in the AAPA and the AEMA. Accordingly, we conclude that the plaintiffs in the present case also have standing to enforce those requirements.

The director and ADEM argued in their motion to dismiss in the trial court, as they do on appeal, that the plaintiffs' challenge to the solid-waste regulations in count VI of their complaint is improper because, they say, the plaintiffs are attempting to challenge certain landfill permits and, in doing so, have bypassed the statutory administrative-appeal process. In count VI, as stated above, the plaintiffs argued that ADEM is not authorized to grant variances, exceptions, or exemptions from the Solid Wastes and Recyclable Materials Management Act or to approve the use of "alternative cover material" at landfills; that, accordingly, Ala. Admin. Code (ADEM), Rules 335-13-4-.15(2), 335-13-4-.22(1)(a)1., and 335-13-4-.23(1)(a)1., are invalid; and that implementation of those allegedly invalid rules "threaten" to interfere with or impair the plaintiffs' rights not to suffer offensive odors and disease vectors associated with the use of those materials. The director and ADEM argue that the plaintiffs cannot challenge the relevant landfill permits for the first time in circuit court and that they must first present their arguments to the EMC. They cite Ala. Code 1975, § 22-22A-7, which provides a procedure for those aggrieved by an administrative action of ADEM to seek a hearing before the EMC.

In City of Graysville v. Glenn, 46 So.3d 925, 929 (Ala. 2010), the Alabama Supreme Court observed, in pertinent part:

" 'To be sure, Alabama recognizes the doctrine of exhaustion of administrative remedies. City of Huntsville v. Smartt, 409 So.2d 1353, 1357 (Ala. 1982). "This doctrine 'requires that where a controversy is to be initially determined by an administrative body, the courts will decline relief until those remedies have been explored and, in most instances, exhausted.' " Id. (quoting Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 209, 314 So.2d 663, 670 (1975) ).'
" Patterson v. Gladwin Corp., 835 So.2d 137, 141-42 (Ala. 2002). There are recognized exceptions to that doctrine, including
" 'when (1) the question raised is one of interpretation of a statute, (2) the action raises only questions of law and not matters requiring administrative discretion or an administrative finding of fact, (3) the exhaustion of administrative remedies would be futile and/or the available remedy is inadequate, or (4) where there is the threat of irreparable injury.'
" Ex parte Lake Forest Prop. Owners' Ass'n, 603 So.2d 1045, 1046-47 (Ala. 1992). This Court has also recognized an exception to the rule 'where there is a defect in the power of the agency to act in any respect.' Jefferson County v. Johnson, 333 So.2d 143, 149 (Ala. 1976)."

Section 41-22-10, Ala. Code 1975, provides:

"The validity or applicability of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action. In passing on such rules the court shall declare the rule invalid only if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with rule-making procedures provided for in this chapter."

In Alabama Cellular Service, Inc. v. Sizemore, 565 So.2d 199, 205 (Ala. 1990), our supreme court concluded that § 41-22-10 does "not preclude a circuit court from entertaining a declaratory judgment action and do[es] not require that a petition be filed with a state agency under [ § 41-22-11, Ala. Code 1975,] as a precondition for seeking a declaratory judgment." In City of Graysville, supra, our supreme court distinguished cases in which plaintiffs were asking the court to interpret a statute and those in which plaintiffs had challenged an agency's action on the basis of there being insufficient evidence to support that action. 46 So.3d at 932. In the present case, the plaintiffs are challenging the validity of certain administrative rules in count VI; they did not couch their challenge in terms of insufficient evidence to support a landfill permit. Thus, the plaintiffs are seeking the interpretation of administrative rules, which is a question of law, and the determination of that question does not require administrative findings of fact or the exercise of administrative discretion. See City of Graysville, 46 So.3d at 931. Moreover, § 41-22-10 and Sizemore indicate that the plaintiffs could directly challenge the applicable rules in the trial court. Accordingly, the plaintiffs were not required to exhaust administrative remedies before filing count VI of their complaint in the trial court.

The director and ADEM last argued in their motion to dismiss, and argue again on appeal, that ADEM was due to be dismissed as a defendant. The plaintiffs assert that they were complying with § 41-22-10 by naming ADEM as a party, despite having made no claims against ADEM in their complaint. Section 41-22-10 provides, in pertinent part, that the "agency shall be made a party to the action." (Emphasis added.) The plaintiffs concede the existence of authorities indicating that ADEM, a state agency, may not be made a defendant pursuant to Article 1, § 14, of the Alabama Constitution of 1901. See, e.g., Russo v. Alabama Dep't of Corr., 149 So.3d 1079, 1080-81 (Ala. 2014). They also cite Ex parte Alabama State Board of Chiropractic Examiners, 11 So.3d 221, 226 (Ala. Civ. App. 2007), in which this court determined that, based on § 41-22-10, the claims against the Alabama State Board of Chiropractic Examiners, which is a state agency, were not barred by Art. 1, § 14. The heading of the plaintiffs' argument on this issue, however, avers that "[t]he trial court "may not have subject matter jurisdiction over [ADEM]...." (Emphasis added.) After citing relevant authorities on both sides of the issue, the plaintiffs do not ask this court to reverse the trial court's judgment insofar as it dismissed their claims against ADEM. They do not ask this court to overrule Ex parte Alabama State Board of Chiropractic Examiners or to invalidate § 41-22-10. Rather, having presented arguments on both sides, the plaintiffs have "submit[ted] the issue to [this court] for decision." Because the plaintiffs fail to indicate that the trial court erred in dismissing ADEM as a defendant, implying instead that the trial court may have been correct in doing so, we conclude that the plaintiffs failed to properly argue the issue, as required by Rule 28, Ala. R. App. P., and, thus, the issue is therefore waived. See Sullivan v. Alfa Mut. Ins. Co., 656 So.2d 1233, 1233 (Ala. Civ. App. 1995). Accordingly, we decline to consider the issue on appeal, and the trial court's dismissal of ADEM as a defendant is affirmed. Id. at 1233-34.

Conclusion

Insofar as the trial court dismissed ADEM as a defendant, we affirm the trial court's judgment. We reverse the trial court's judgment with regard to the plaintiffs' remaining claims against the director, and we remand the case to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      Although Judge Donaldson was not present at oral argument in this case, he has listened to the audiotape of the oral argument.


text:
    Ronald K. SCHIMING, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC18-695
    Supreme Court of Florida.
    October 19, 2018
    Ronald K. Schiming, Sr., pro se, Madison, Florida, for Petitioner
    No appearance for Respondent
   PER CURIAM.

This case is before the Court on the petition of Ronald K. Schiming for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. By order dated July 10, 2018, we denied Schiming's petition as repetitive pursuant to Topps v. State , 865 So.2d 1253 (Fla. 2004). Schiming v. Jones , No. SC18-695, Order at 1, 2018 WL 3356163 (Fla. July 10, 2018). Concurrent with the denial of the petition, we expressly retained jurisdiction to pursue possible sanctions against Schiming. Id. ; see Fla. R. App. P. 9.410(a) (Sanctions; Court's Motion).

Schiming was convicted in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, on counts of attempted first-degree murder, sexual battery by threat or force, kidnapping, possession of a weapon in the commission of a felony, and robbery with a deadly weapon (case number 481987CF005037000AOX). He was sentenced to various concurrent terms of incarceration, including life imprisonment for the attempted murder conviction. On direct appeal, the Fifth District Court of Appeal reversed the conviction for kidnapping and remanded for a new trial on that charge. The remaining convictions and sentences were affirmed. See Schiming v. State , 534 So.2d 1252 (Fla. 5th DCA 1988). The State nolle prossed the kidnapping charge in 1989, but in 1991 Petitioner filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(a) claiming that he was never resentenced on the remaining convictions. On appeal of the trial court's denial of that motion, the Fifth District affirmed Petitioner's departure sentence for attempted first-degree murder, but his guidelines sentences on the remaining convictions were vacated and remanded for resentencing. See Schiming v. State , 617 So.2d 813, 815 (Fla. 5th DCA 1993). After resentencing, Petitioner again appealed and the Fifth District per curiam affirmed his convictions and sentences. See Schiming v. State , 637 So.2d 252 (Fla. 5th DCA 1994).

Schiming began filing petitions with the Court in 2003. Since that time, he has filed eleven previous petitions or notices related to his convictions and sentences in the above-stated case. We have never granted the relief sought in any of Schiming's filings, all of which have been denied, dismissed, or transferred by the Court. Ten of these previous filings have been habeas petitions in which Schiming challenged the legality of his life sentence for attempted first-degree murder. The habeas petition in this case was no exception. Schiming argued that his 1987 conviction for attempted first-degree murder was erroneously reclassified as a life felony, making his sentence illegal because the jury did not make a separate finding in its verdict that he had used a deadly weapon during commission of the offense. We denied the petition as repetitive and directed Schiming to show cause why he should not be barred from filing any further pro se requests for relief and referred to the Department of Corrections for possible disciplinary action pursuant to section 944.279, Florida Statutes (2018).

Schiming filed a response to the order to show cause in which he reasserts that his life sentence is illegal and argues that sanctions would be improper because this Court has never addressed the merits of his claim. He argues that he has always alleged manifest injustice, making all of his filings meritorious and therefore not frivolous. Upon due consideration of Schiming's response, we conclude that it fails to show cause why sanctions should not be imposed. Based on his persistent history of filing pro se petitions that were frivolous, meritless, or otherwise inappropriate for this Court's review, Schiming has abused the judicial process and burdened this Court's limited judicial resources. We further conclude that Schiming's petition for writ of habeas corpus filed in this case, which represents the eleventh petition in which he has raised the same issue and sought the same relief, is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2018).

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Ronald K. Schiming that are related to case number 481987CF005037000AOX, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Schiming's behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, because we have found Schiming's petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes, to forward a copy of this opinion to the Florida Department of Corrections' institution or facility in which Schiming is incarcerated.

No motion for rehearing or clarification will be entertained by the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      See Schiming v. Jones , No. SC17-56, 2017 WL 1034541 (Fla. Mar. 17, 2017) (habeas petition dismissed as unauthorized); Schiming v. Jones , No. SC16-1728, 2016 WL 6656787 (Fla. Nov. 9, 2016) (habeas petition denied as repetitive); Schiming v. Jones , No. SC15-2048, 2016 WL 282097 (Fla. Jan. 22, 2016) (habeas petition denied as procedurally barred); Schiming v. Crews , 139 So.3d 887 (Fla. 2014) (table) (No. SC13-1799) (habeas petition dismissed); Schiming v. State , 119 So.3d 444 (Fla. 2013) (table) (No. SC12-2745) (mandamus petition dismissed); Schiming v. McNeil , No. SC10-2227 (Fla. Dec. 14, 2010) (habeas petition transferred); Schiming v. McNeil , 22 So.3d 539 (Fla. 2009) (table) (No. SC09-1083) (habeas petition dismissed); Schiming v. McNeil , 982 So.2d 1179 (Fla. 2008) (table) (No. SC08-604) (habeas petition denied as repetitive); Schiming v. McDonough , 939 So.2d 94 (Fla. 2006) (table) (No. SC06-1165) (habeas petition dismissed); Schiming v. State , 903 So.2d 936 (Fla. 2005) (table) (No. SC05-285) (notice to invoke administratively dismissed); Schiming v. State , No. SC03-871 (Fla. May 18, 2004) (habeas petition transferred).