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    Alisa ANSLEY, administrator of the Estate of James W. Ansley, deceased v. INMED GROUP, INC., d/b/a Bullock County Hospital, et al.
    1160465
    Supreme Court of Alabama.
    May 4, 2018
    J. Allan Brown and Joseph F. McGowin IV of Law Office of J. Allan Brown, LLC, Mobile; Dennis Goldasich, Jr., and Justin C. Owen of Goldasich & Associates, Birmingham; and Dorothy A. Powell, Mobile, for appellant.
    Robert L. Williams and Andrew C. Knowlton of Hall Booth Smith, P.C., Birmingham, for appellee Inmed Group, Inc., d/b/a Bullock County Hospital.
    Jay P. Adams, Gordon L. James, and Sara G. White of Hudson, Potts & Bernstein, LLP, Monroe, Louisiana; and Walter E. McGowan of Gray Langford Sapp McGowan Gray & Nathanson, Tuskegee, for appellees ERMDS, LLC, and the Estate of Dr. Ireneo Domingo, Jr.
   SELLERS, Justice.

This wrongful-death action was tried to a jury, which returned a verdict in favor of "all defendants," which included the entity that operates Bullock County Hospital, ERMDS, LLC, and the estate of Dr. Ireneo Domingo, Jr. The Bullock Circuit Court ("the trial court") entered a judgment on that verdict. The plaintiff, Alisa Ansley, administrator of the estate of James W. Ansley, deceased ("Ansley"), filed a postjudgment motion for a new trial. The trial court denied that motion, and Ansley appealed. We affirm.

I. Facts and Procedural History

At 2:07 p.m. on July 20, 2012, James W. Ansley ("James") presented to the emergency room of Bullock County Hospital ("BCH"), complaining of chest pain he had been experiencing for one or two days. James's condition deteriorated, and, at approximately 4:30 p.m., the decision was made to transfer James to a different hospital, Baptist Medical Center South ("Baptist South"). James later died at Baptist South of pulmonary embolism (blood clots that had traveled to his lungs).

Dr. Domingo examined James when he arrived at the BCH emergency room. At that time, Dr. Domingo was employed as an emergency-room physician by ERMDS, LLC, which had contracted with the entity that operates BCH to provide medical staff to care for patients in BCH's emergency room. Dr. Domingo was also employed as a hospitalist by the operator of BCH. The parties agree that a hospitalist is a physician who works in a hospital and decides whether to admit patients to the hospital, primarily from the emergency room. The evidence in this case indicates that it is common in small hospitals for a hospitalist to also serve as an emergency-room physician.

At approximately 2:58 p.m., Dr. Domingo created a differential diagnosis identifying the medical conditions that could possibly be causing James's symptoms. Those conditions included, among others, myocardial infarction ; coronary artery disease ; pulmonary embolism ; and aortic dissection. At that time, Dr. Domingo believed that myocardial infarction was most likely responsible for James's symptoms. It is undisputed, however, that James was suffering from a pulmonary embolism.

The parties agree that the best method of detecting a pulmonary embolism is a CT scan with intravenous contrast dye. BCH could not diagnose a pulmonary embolism with its CT scanner, however, because the scanner did not have a contrast-dye injector.

At 3:36 p.m., results of basic lab tests that had been performed on James were returned. Shortly thereafter, Dr. Domingo entered an order calling for James to be admitted to BCH. The record is not entirely clear, but it appears that the order of admission was entered at or around 3:42 p.m. Ansley argued in the trial court that, upon entering the order to admit James to BCH, Dr. Domingo began providing care to James in his capacity as a hospitalist, as opposed to his capacity as an emergency-room physician. Ansley argues on appeal that, because BCH did not have the capability of diagnosing a pulmonary embolism, Dr. Domingo, acting as a hospitalist, should not have admitted James to BCH and should have instead transferred him immediately to Baptist South.

The record indicates that Dr. Domingo received the results of James's cardiac lab tests at 3:56 p.m. Those test results showed that James had elevated levels of troponin, a protein that assists in muscle contractions and is released in the event of a myocardial infarction or a pulmonary embolism. Dr. Domingo believed that James's increased troponin levels were caused by myocardial infarction. He later agreed, however, that the elevated troponin was most likely caused by the pulmonary emboli that killed James.

During Dr. Domingo's deposition, portions of which were read to the jury, Ansley's counsel asked Dr. Domingo if there "was anything done between 2:58 [when the differential diagnosis was created] and 4:30 [when the decision was made to transfer James to Baptist South] to rule out pulmonary embolism." Dr. Domingo responded:

"There was no indication to rule out [pulmonary embolism ] because the patient was stable. And ... the patient wasn't complaining of shortness of breath. He said he felt better. So the plan of action was really to admit the patient to rule out [myocardial infarction ]."

Dr. Domingo testified that James was at a low risk for pulmonary embolism and was more likely suffering from myocardial infarction. According to Dr. Domingo, the American Cardiology Society recommends that, if there is a strong suspicion that a patient has a myocardial infarction, the patient's troponin level should be monitored. Dr. Domingo testified that, before 4:30 p.m., "[t]here was no indication to do a [pulmonary-embolism ] workup."

At approximately 4:30 p.m., James went to the restroom in BCH's emergency room and became short of breath, diaphoretic, hypotensive, and hypoxic. Dr. Domingo testified that, at that time, he reexamined James and discovered that his condition had changed significantly. Accordingly, Dr. Domingo informed a BCH nurse that James was "not going to be admitted [to BCH]." Instead, Dr. Domingo ordered that James be transferred to Baptist South; James left BCH in an ambulance at 5:40 p.m. and arrived at Baptist South at 6:28 p.m. Dr. Domingo testified that "[t]he [pulmonary-embolism ] event when [James] became hypotensive was not foreseeable in [Dr. Domingo's] initial assessment." In Dr. Domingo's opinion, he did what he had believed "was best for the patient."

At approximately 6:55 p.m., test results were obtained at Baptist South that suggested the possibility of a pulmonary embolism. Physicians at Baptist South, however, suspected that James could have a dissection of the thoracic aorta. Accordingly, heparin, an anticoagulant, was not administered because it can cause a patient with aortic dissection to bleed to death.

A CT angiogram was performed at Baptist South at approximately 9:00 p.m. The results were provided to James's Baptist South physicians at 9:20 p.m. and confirmed that James was suffering from bilateral pulmonary emboli. James went into cardiopulmonary arrest around that time and was pronounced dead at 9:42 p.m.

After she was appointed as representative of James's estate, Ansley sued the entity that operates Baptist South, which settled with her. Ansley also sued Dr. Domingo and, based on his actions, ERMDS, LLC. In addition, based on Dr. Domingo's actions and the actions of BCH nurses, Ansley sued Inmed Group, Inc., d/b/a Bullock County Hospital, which Ansley claimed was the entity that operates BCH. See note 1, supra. Dr. Domingo died before the trial began, and his estate was substituted as a defendant. In her complaint, Ansley alleged that James's death resulted from the defendants' medical malpractice.

One of Ansley's expert witnesses, Dr. Benny Gavi, a hospitalist, testified as follows regarding the role of a hospitalist:

"A hospitalist is a doctor that works in the hospital and they take admissions into the hospital primarily from the emergency department. [A]nd so[, as a hospitalist,] I would get a call from the emergency department doctor, who says, I have a patient who needs to come into the hospital, are you willing to accept the patient? This is the medical history. And then I say, yes, I accept; or, no, I don't accept if there [are] issues. And then I take care of that patient in the hospital until they go home."

Dr. Gavi testified that Dr. Domingo began functioning as a hospitalist when he entered the order to admit James to BCH. It appears undisputed that Dr. Domingo, in his capacity as an emergency-room physician at BCH, could not admit a patient to BCH. Ansley, however, has not pointed to evidence establishing that an emergency-room physician at BCH cannot make the decision to transfer a patient to a different facility.

According to Dr. Gavi, the standard of care requires a hospitalist to be aware of the capabilities of his or her hospital. He testified that a hospitalist should not accept a patient if the patient has "a condition that you couldn't treat" and that "it would not be safe to take someone with a potentially life threatening problem or problems to put them in a place where you couldn't evaluate those problems or treat them in the most effective manner." He also testified that BCH did not have equipment capable of ruling out a pulmonary embolism. According to Dr. Gavi, Dr. Domingo, acting as a hospitalist, breached the applicable standard of care by admitting James to BCH instead of transferring him to a more capable hospital.

Another expert witness called by Ansley, Dr. Jeffrey Kline, testified as to Dr. Domingo's alleged breach of the standard of care applicable to an emergency-room physician. He testified that Dr. Domingo should have transferred James to Baptist South when he received notice that James's troponin levels were elevated.

Dr. Alan Jones, an emergency-room physician, testified for the defendants. Before Dr. Jones was called as a witness, Ansley objected to his providing "a standard-of-care opinion for the entire time that James ... was at [BCH]." She argued that, when the admission order was entered at 3:42 p.m., Dr. Domingo began caring for James as a hospitalist and that Dr. Jones, an emergency-room physician, "would not be similarly situated to Dr. Domingo after 3:42 p.m." The trial court denied Ansley's motion to limit Dr. Jones's testimony. According to Dr. Jones, Dr. Domingo acted appropriately in waiting to transfer James until 4:30 p.m., when his condition changed in the BCH emergency-room restroom. In her appellant's brief, Ansley does not discuss Dr. Jones's testimony, other than to point out that the trial court refused to limit its scope as she had requested.

The Court notes that Dr. Jones's responses to questions regarding Dr. Domingo's duty to transfer a patient to a more capable facility suggest that, for purposes of this case, the standard of care applicable to an emergency-room physician is very similar to the standard of care Ansley has argued applies to a hospitalist. Specifically, Dr. Jones testified as follows in response to questioning by Ansley's counsel:

"Q. Dr. Domingo should always make a determination of whether or not the patient is within the capability of the hospital. He should have done that here, right?
"A. And I believe he did.
"Q. He should do it, right?
"A. Yes, he should do it.
"Q. Right. And in order to comply with the standard of care, he has to make a determination as to whether or not this patient fits within this capacity of this hospital here, right?
"A. Yes.
"Q. And if the patient doesn't, the obligation is to transfer the patient to somewhere that is within that capacity?
"A. Yes."

Similarly, the testimony of Dr. Kline, Ansley's expert emergency-room physician, indicates that an emergency-room physician should know the capabilities of his or her hospital and should transfer patients to a more capable facility if necessary.

As for causation, Dr. Gavi testified that, if Dr. Domingo had transferred James to Baptist South at 3:42 p.m. rather than admitting him to BCH, he would have lived. Dr. Kline testified that, if James had been transferred to Baptist South an hour earlier than he was (or if the CT angiogram at Baptist South had been performed an hour earlier), he would have lived. Dr. William Alleyne, an expert witness called by the defendants, testified as follows regarding causation:

"Q. [By defendants' attorney:] Dr. Kline testified that in his causation testimony that if Mr. Ansley had gotten to [Baptist South] an hour earlier, he would have survived. Do you agree with that?
"A. No.
"Q. Why not?
"A. The patient, Mr. Ansley, complained of chest pain for one to two days before he came to the hospital. In hindsight, we know that this chest pain was due to blood clots in his lungs. By his statement that he had chest pain one to two days before he came to the hospital, we know that he had blood clots going to his lungs for that time. He arrives at the hospital at approximately 2:40 p.m. in the afternoon. Bloods are drawn, and they are available on the chart approximately one hour later, at about 3:30. Those bloods, the blood results, included this elevated troponin. So this elevated troponin was due to the right heart having to strain to try to pump blood through blocked pipes. The pulmonary embolism that had occurred or had-this process had begun somewhere between a day or two days prior to him coming.
"So once Mr. Ansley presents to the emergency room and he is being evaluated, the bathroom incident occurs. The bathroom incident is a syncopal episode, what you and I would call a fainting episode. We know, again, from knowing the result of why this was going on, he had a blood clot. That fainting spell, in conjunction with the lowered blood pressure, his blood pressure when he comes to the emergency room is, the top number, the systolic number is somewhere around 152. He has this fainting spell. Fainting spells can be caused by a variety of things. One of the things we know that can cause it is if you don't get enough blood flow to your brain. Mr. Ansley, following this bathroom incident, this fainting spell, had blood pressures that were initially in the 150 range, went into the 130 range, and at one point were in the mid nineties. So he has a significant drop in his blood pressure, which of course we know is a result of the blood clots and the inability for his heart to pump correctly and adequately to maintain his blood pressure. So we know that this process, that had been going on for at least a day or two prior to him coming in, continued while he was at [BCH], and ultimately caused his demise later that evening while at Baptist [South]. The fact that he developed this fainting spell with the low blood pressure, lowered from where he presented, would be an example of what we call hemodynamic instability. That's a fancy doctor's term to mean that your blood pressure is not stable, your heart is not stable. So once that occurs, we know that the blood clot in the lung, what we call pulmonary embolism, is a massive pulmonary embolism, massive being defined as a blood clot that is sufficiently large to cause this hemodynamic instability. That puts you into a category of your survival, once you have had this hemodynamic instability, your survival is less than 50 percent, meaning that most of these patients die. So the fact that his presentation has now changed puts him into a different category. That different category means that although blood thinners will help, they will only help to prevent further damage. They don't prevent or reverse whatever process is already there. And we know that's significant, because again, he has this fainting spell, this syncopal episode, this hemodynamic instability. So at that point, the patient is more likely than not to die, and in my view, even had he gotten the blood thinner, the Heparin, I do not believe that he would have survived, and that is a point of difference in opinion between myself and Dr. Kline.
"Q. I think you just answered this. Dr. Kline said if he had been given Heparin when he was transferred, then he would have survived. Do you agree with that?
"A. I do not.
"Q. For the reasons you just said?
"A. Yes, sir.
"Q. Would earlier treatment have guaranteed his survival and prevented his death?
"A. No."

At the close of the evidence, Ansley filed a motion for a partial judgment as a matter of law ("JML"). She argued that the evidence established that, "[f]rom the time Dr. Domingo entered an admission order for [James], at approximately 3:30 p.m., until the time [James] left BCH, Dr. Domingo was providing medical care to [James] while acting as a hospitalist physician." Ansley also asserted that Dr. Gavi, who testified that Dr. Domingo breached the standard of care applicable to a hospitalist, was the only witness to provide standard-of-care testimony regarding Dr. Domingo's actions as a hospitalist. Accordingly, Ansley argued, she was entitled to a JML "on the issue of [Ansley's] standard of care allegations regarding Dr. Domingo's treatment in his capacity as hospitalist." Ansley did not argue that she was entitled to a JML on the issue whether Dr. Domingo breached the standard of care applicable to an emergency-room physician or whether Dr. Domingo's actions proximately caused James's death. The trial court denied Ansley's motion for a partial JML.

Using a verdict form agreed upon by the parties, the jury returned a general verdict in favor of the defendants. The trial court denied Ansley's postjudgment motion for a new trial, and this appeal followed.

II. Discussion

A. Ansley's Motion for a JML

In her appellant's brief, Ansley suggests that she was entitled to a JML because, she says, Dr. Domingo breached the standard of care in failing to transfer James to Baptist South immediately upon creating the differential diagnosis, which identified pulmonary embolism as a possible cause of his symptoms. As noted, however, Ansley moved for a JML only as to whether Dr. Domingo breached the applicable standard of care while allegedly acting as a hospitalist, which she claimed in her motion began when "Dr. Domingo entered an admission order for [James] at approximately 3:30 p.m." Ansley did not ask the trial court to enter a JML holding that Dr. Domingo breached the standard of care at an earlier point. Thus, she cannot make that argument on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) (indicating that appellate courts will not consider arguments raised for the first time on appeal and that appellate review is restricted to the evidence and the arguments considered by the trial court).

Although not entirely clear, Ansley also appears to suggest that she was entitled to a JML on all elements of her medical-malpractice claim based on Dr. Domingo's conduct while allegedly acting as a hospitalist. In addition to evidence indicating that Dr. Domingo breached the standard of care applicable to a hospitalist, she points to evidence that, she claims, establishes that Dr. Domingo's alleged breach proximately caused James's death. Ansley, however, never asked the trial court to enter a JML on all elements of her medical-malpractice claim; she did not argue to the trial court that the evidence indisputably established causation. Accordingly this Court will not consider that argument on appeal.

Ansley's primary argument on appeal is that she is entitled to a new trial based on the trial court's alleged error in denying her motion for a JML on her claim that Dr. Domingo breached the standard of care applicable to a hospitalist. She asserts in her brief that, at or around the time the order to admit James was entered, Dr. Domingo's role "changed" from an emergency-room physician to a hospitalist. She points to the testimony of Dr. Gavi indicating that Dr. Domingo breached the standard of care applicable to a hospitalist, and she argues that Dr. Gavi's testimony was uncontroverted because, she asserts, the defendants did not present their own expert testimony to the effect that Dr. Domingo met or exceeded the standard of care.

The defendants, on the other hand, argue that a jury question existed as to whether Dr. Domingo acted as a hospitalist in determining whether and when to transfer James to Baptist South. Thus, they argue, the trial court did not err in denying Ansley's motion for a partial JML.

"A directed verdict [now, a JML] is proper on a claim where the facts are such that all reasonable men must draw the same conclusion from them. Turner v. Peoples Bank, 378 So.2d 706 (Ala. 1979). A plaintiff is entitled to a [JML] where there are no controverted issues of fact upon which reasonable men could differ. Loeb & Co. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976)."

Continental Assurance Co. v. Kountz, 461 So.2d 802, 806 (Ala. 1984). In Lloyd Noland Hospital v. Durham, 906 So.2d 157, 168-69 (Ala. 2005), this Court said:

"The standard of review of an order denying a new-trial motion on the ground that the verdict is against the weight of the evidence is well established. 'No ground for reversal of a judgment is more carefully scrutinized or rigidly limited than the ground that the verdict of the jury was against the great weight of the evidence.' Christiansen v. Hall, 567 So.2d 1338, 1341 (Ala. 1990). 'A jury verdict is presumed correct, and this presumption is strengthened by the trial court's denial of a motion for new trial.' Med Plus Props. v. Colcock Constr. Group, Inc., 628 So.2d 370, 374 (Ala. 1993).
" ' "Moreover, the denial of a motion for a new trial [on the ground that the verdict is against the weight and preponderance of the evidence] will not be reversed by this Court unless, after allowing all reasonable presumptions as to the verdict's correctness, the preponderance of the evidence is so against it that this Court is clearly convinced that it is wrong and unjust." '
" 628 So.2d at 374 (quoting Deal v. Johnson, 362 So.2d 214, 218 (Ala. 1978) ). The denial of such a motion ' "rests within the sound discretion of the trial court, and this Court will not reverse a ruling in that regard unless it finds that the trial court's ruling constituted an abuse of discretion." ' Vaughan v. Oliver, 822 So.2d 1163, 1170 (Ala. 2001) (quoting Colbert County-Northwest Alabama Healthcare Auth. v. Nix, 678 So.2d 719, 722 (Ala. 1995) )."

Ansley asserted in her motion for a JML that the administrator of BCH, Jacques Jarry, testified that Dr. Domingo was acting in his capacity as a hospitalist when he entered the order to admit James. Jarry testified, however, that James was never actually admitted to BCH. Similarly, Dr. Domingo stressed that James was never transferred out of the emergency room. Dr. Domingo testified as follows:

"Q. [By Ansley's attorney:] So in your role as a hospitalist is when you decided to admit Mr.-
"A. Right.
"Q.-Ansley.
"A. Under my service, because he has no other doctor here.
"Q. Got it. All right. So to get this straight, your role as an ER physician you diagnosed him, came up with your differential diagnosis, got him to the point where he needed to be admitted. And then your role as the hospitalist for this facility-
"A. I will cover him during the stay-time he was here.
"Q. You admitted him.
"A. Yeah.
"Q. So the admission order, I believe [was] at 3:40, 3:30 time frame.
"A. Right.
"Q. From-so your ER hat would have been worn from 2:07 up until that point in time.
"A. Right.
"Q. And from 3:30 until his transfer, you would have [been] wearing your hospitalist hat.
"A. If-if we were able to transfer him to the floor, but he didn't make it to the floor. He was transferred [to Baptist South].
"Q. Well, he didn't make it to the floor, but-but you were still acting as a hospitalist at that point.
"A. Right.
"Q. Correct?
"A. Right. I was admitting him under my service."

Dr. Domingo testified that he planned to admit James to BCH. As noted, however, after the incident in the restroom of the BCH emergency room occurred at 4:30 p.m., Dr. Domingo informed a BCH nurse that James would not, in fact, be admitted to BCH.

Likewise, the nurse who cared for James when he was at BCH testified that there had been a plan to admit James to BCH but that he was never admitted because of the incident that occurred at 4:30 p.m. in the BCH emergency-room restroom. Similarly, Ansley's nursing expert testified as follows:

"[By Ansley's attorney:] Okay. So it is the last page; and it is the history that's documented by Dr. Domingo. And it was documented at 15:50, and the plan that's documented there is telemetry and angina unstable.
"Q. That is the plan to admit with telemetry; correct?
"A. Correct.
"Q. Do you not understand that what Dr. Domingo was saying in that note is that he was planning to admit this patient to the hospital with telemetry?
"A. Correct.
"Q. But he never got admitted to the hospital, did he?
"A. At this point in time that was the plan.
"Q. That was the plan?
"A. And that was the plan when Mr. Ansley went to the bathroom at [4:30 p.m.].
"Q. It was still a plan to admit him but he was never admitted. He never left the emergency room, did he?
"A. He was transported.
"Q. Well, while he was at Bullock County Hospital, he was in the emergency department the whole time?
"A. Correct.
"Q. Did he change rooms?
"A. Not that I'm aware."

Medical bills from BCH show that James was charged for time spent in the emergency room, not for a room in the main hospital. Dr. Kline, an emergency-room physician, testified that Dr. Domingo violated the standard of care applicable to an emergency-room physician the entire time James was in the BCH emergency room.

In arguing her motion for a partial JML, Ansley's counsel acknowledged:

"Regarding the issue of whether there is a question of fact, that may be so because they have presented evidence that they don't believe that he was acting that way [as a hospitalist].
"But on the issue of if he was acting as a hospitalist, the [trial court] must find based on the evidence that he violated the standard of care."

Ansley has not demonstrated that there was no jury question as to whether Dr. Domingo acted in his role as a hospitalist in considering whether and when to transfer James to Baptist South. Accordingly, we reject her argument that the trial court should have granted her motion for a new trial based on the alleged error in denying her motion for a partial JML.

Even assuming Dr. Domingo was acting in his capacity as a hospitalist, the Court is not convinced by Ansley's argument that Dr. Gavi's testimony regarding the standard of care and Dr. Domingo's breach thereof shifted the burden to the defendants to present their own expert testimony in support of their argument that Dr. Domingo did not breach the standard of care. Ansley points to Justice Cook's special concurrence in Taylor v. Hanner, 727 So.2d 68 (Ala. 1999), in which this Court affirmed, without an opinion, a trial court's order granting a plaintiff's motion for a new trial in a medical-malpractice action after the jury had returned a verdict for the defense. The trial court's ruling in Taylor was based in part on its determination that it had erred in refusing to enter a preverdict JML that the defendant medical provider had breached the standard of care. The trial court stated in its order:

" 'One cannot reasonably argue that the Defendant would not have sought and been entitled to a directed verdict [now, a JML] in his favor had the Plaintiff failed to present substantial evidence of the statutorily defined breach of duty by the Defendant. Thus, the so-called level playing field that our system of justice must provide mandates [that] the Plaintiff [be] entitled to a 'partial [JML]' where the Defense fails to rebut a showing by the Plaintiff by substantial evidence that the Defendant breached his medico-legal duty to his patient, in this case, the Plaintiff's decedent.' "

727 So.2d at 69 (Cook, J., concurring specially). Ansley concedes, however, that Justice Cook's special concurrence in Taylor is not binding on the Court. Moreover, Justice Cook's special concurrence does not point to any authority clearly supporting the trial court's apparent suggestion in Taylor that the defendant's failure to offer his own expert testimony in response to the plaintiff's expert testimony required the entry of a partial JML for the plaintiff.

Moreover, Ansley has not demonstrated that Dr. Domingo's own testimony was not sufficient to allow the jury to determine he did not breach the standard of care applicable to a hospitalist. Finally, even if we were to conclude that the trial court erred in denying Ansley's motion for a partial JML, Ansley has not demonstrated that the trial court lacked discretion to deny her motion for a new trial. She again improperly relies on Taylor, which is not binding and itself affirmed the trial court's exercise of discretion.

B. Testimony Regarding Financial Condition of BCH

Ansley argues on appeal that she is entitled to a new trial because the defendants presented evidence that, she asserts, constituted "extraneous and irrelevant matters of the [poor] financial status of [BCH]," and because the trial court refused to allow her to present rebuttal evidence of BCH's alleged wealth. Ansley points to the testimony of BCH administrator Jacques Jarry, whom Ansley called as an adverse witness.

Jarry's testimony on cross-examination by defense counsel indicated that BCH is a small hospital that does not have the same capabilities as do larger hospitals. For example, he testified that other small hospitals near BCH have had to close, that BCH is a rural hospital that provides care to the citizens of Bullock County, that BCH is one of "three little hospitals [in the area] that work together," that BCH has had to "budget monies," and that Jarry personally has had to borrow money to pay BCH employees. Jarry also testified that BCH has "people that care" who work in the hospital "regardless of if we get any money out of it or not." Ansley asserts that Jarry's testimony was "not relevant to any claim or issue" and was "introduced solely for the improper purpose of engendering sympathy for [the] defendants."

Ansley's primary theory of liability during the trial was that BCH did not have equipment capable of diagnosing a pulmonary embolism and that Dr. Domingo therefore should have transferred James to Baptist South sooner. On direct examination, Ansley repeatedly asked Jarry whether it would be unethical for a hospital to put its own financial gain ahead of patient safety. The suggestion by such questioning was that BCH, while not having sufficient proper diagnostic equipment, would nevertheless admit patients who should be transferred to a more capable facility in order to earn a profit at the expense of patient safety. Jarry was also asked about his own personal interests in entities that stood to gain financially from the operation of BCH. After plaintiff's counsel objected during cross-examination to Jarry's testimony regarding BCH's modest financial state, the trial court stated: "So I'm supposed to let you on direct [examination] talk about them having an old CT machine and let you talk about on direct [examination] that financial gain can't ever be put above patient safety, but then they can't respond to any of that?" Thus, it is clear the trial court determined that Jarry's testimony was relevant in part because of Ansley's suggestion that BCH and Jarry were more interested in profit than in protecting patients and to explain why BCH did not have the equipment necessary to diagnose and treat a pulmonary embolism.

"[W]hen evidence of financial worth goes to a material issue in the case, it is admissible." Johns v. A.T. Stephens Enters., Inc., 815 So.2d 511, 516 (Ala. 2001). Moreover, "[e]vidence regarding a party's financial condition may also be admissible when the party's opponent has opened the door by commenting upon or asking questions concerning [the] party's financial standing." Hathcock v. Wood, 815 So.2d 502, 509 (Ala. 2001) (quoting I Charles W. Gamble, McElroy's Alabama Evidence § 189.05(2)(c) (5th ed. 1996) ). "A trial court's ruling on the admission or exclusion of evidence will be reversed only if it is shown that the trial court exceeded its discretion in so ruling." Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 7 (Ala. 2007). Ansley has not demonstrated that the trial court exceeded its discretion in allowing Jarry's testimony or in refusing to allow Ansley to present evidence of BCH's alleged wealth.

III. Conclusion

Ansley has not demonstrated that the trial court exceeded its discretion in denying her motion for a new trial. Accordingly, the trial court's judgment is affirmed.

AFFIRMED.

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

Bolin, Shaw, and Bryan, JJ., concur in the result.

Main, J., recuses himself.

      There is some confusion regarding the entity that operates Bullock County Hospital. Alisa Ansley originally sued Inmed Group, Inc., d/b/a Bullock County Hospital. Later, Ansley amended her complaint to substitute Professional Resources Management, Inc., d/b/a Bullock County Hospital, as the entity that operates Bullock County Hospital. At some point during the trial, the parties agreed to refer to the operator of Bullock County Hospital by a combination of the names of the two entities, specifically, "PRM d/b/a Bullock County Hospital/Inmed." In her notice of appeal, Ansley identified the relevant appellee as Inmed Group, Inc., d/b/a Bullock County Hospital. Nevertheless, an attorney representing Professional Resources Management, Inc., made an appearance in the appeal via a request for more time to file an appellee's brief, although he later withdrew that request. Ultimately, Inmed Group, Inc., and not Professional Resources Management, Inc., filed an appellee's brief. In a portion of that brief, Inmed Group, Inc., argues that the appeal should be dismissed as to it. Because the Court affirms the trial court's judgment, however, we pretermit discussion of whether the proper entity has been made an appellee, and the request to dismiss is moot.

      In her appellant's brief, Ansley points to Dr. Domingo's deposition testimony indicating that he received the results of the cardiac lab tests earlier-at 3:09 p.m. The evidence at trial, however, indicates that Dr. Domingo likely was mistaken during his deposition and that he received those results at 3:56 p.m. The Court also notes that the trial court entered a pretrial order containing a stipulation of facts stating that, "[a]t 3:56 p.m., the Cardiac Panel report listed [James's] Troponin 1 as critical."

      Dr. Kline also testified that Dr. Domingo should have given James an anticoagulant. On appeal, Ansley does not rely on Dr. Domingo's decision to not administer an anticoagulant in support of her argument that Dr. Domingo's malpractice caused James's death.

      On the day the trial began, the trial court granted Ansley's motion to preclude Dr. Alleyne from testifying as to a hospitalist's standard of care because he was not a similarly situated medical provider to Dr. Domingo. Thus, Dr. Alleyne was allowed to testify only as to causation.

      Although Ansley asserted in her motion that the admission order was entered at 3:30 p.m., much of the evidence suggested that it was entered at 3:42 p.m.

      Ansley does not clearly argue on appeal that she was entitled to a partial JML and a new trial even if there was a jury question as to whether Dr. Domingo acted as a hospitalist.

      It is noteworthy that Ansley requested and received jury instructions to the effect that the jury in the present case did "not have to accept [expert] opinions and testimony just because they are experts" and that the jury was to "determine [an expert witness's] credibility just like [it] determine[d] the credibility of the other witnesses."

      Ansley also asserts that defense counsel commented on BCH's finances during opening arguments and on the finances of Dr. Domingo's estate during closing arguments. There is, however, no transcript of opening or closing arguments in the record, and Ansley has not demonstrated that we should consider statements that do not appear in the record.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Doris COKE v. FAMILY SECURITY CREDIT UNION
    2160912
    Court of Civil Appeals of Alabama.
    May 4, 2018
    Doris Coke, pro se.
    Leonard M. Math, Katherine E. Luders, and M. David Waters, Jr., of Chambless Math & Carr, P.C., Montgomery, for appellee.
   PER CURIAM.

Doris Coke, the defendant in a collection action brought by Family Security Credit Union ("FSCU") in the Jefferson Circuit Court, appeals from a default judgment entered by that court in favor of FSCU. Because Coke was not in default at the time that the trial court entered that judgment, we reverse the judgment and remand the cause for further proceedings.

In April 2015, FSCU sued Coke, alleging that she had breached a September 2012 agreement to repay a principal loan amount of $12,488 plus other sums, the repayment of which had been secured by a security interest in a 2005 Cadillac automobile; the complaint sought possession of the automobile and a money judgment for the unpaid sums under the contract. The summons accompanying the complaint listed Coke's address in Birmingham as "305 Ct. W" (i.e., 305 Court West). Within 30 days of service of the summons and complaint, Coke filed a motion seeking, in effect, a more definite statement of FSCU's claim (see generally Rule 12(e), Ala. R. Civ. P.) and averring that she had paid more moneys under the contract than had been required. On June 29, 2015, the trial court set Coke's motion for a July 8, 2015, hearing; on the date of that hearing, at which Coke was not present, the trial court entered an order denying Coke's Rule 12(e) motion and allowing her 30 days to answer the complaint. However, in response to Coke's subsequent motion to set aside that order (in which she noted that her actual address was 305 9th Court West and that she had not received notice of the hearing on her motion for a more definite statement), the trial court entered two orders on August 6, 2015. One of those orders "vacated and set aside" the trial court's July 8, 2015, order and directed that Coke's address be changed in the docketing system; the other indicated the trial judge's recusal from hearing the case and requested reassignment thereof.

In October 2015, FSCU filed a motion in which it "request[ed] a hearing based on the prior motion of the defendant," evidently seeking a determination whether a newly assigned judge would or would not grant Coke's motion for a more definite statement. In June 2016, FSCU again moved for the setting of a hearing in the case. The trial court, acting through a newly assigned judge, entered an order on April 17, 2017, requesting an update on the status of the case, advising that it would be dismissed within 14 days if no response was received. FSCU immediately complied on April 18, 2017, again requesting a hearing "based on[ ] the prior motion of the defendant." Despite the pendency of the Rule 12(e) motion, on April 19, 2017, the trial court set a "Default Judgment Hearing" for May 9, 2017. On May 10, 2017, the day after that hearing, the trial court entered a default judgment noting that Coke had failed to appear at the "Default Judgment Hearing," awarding FSCU possession of the automobile at issue, and permitting FSCU to apply any proceeds derived from the subsequent disposition of the automobile to Coke's alleged indebtedness (which the trial court calculated to be $8,568.97, including attorney fees). Coke timely filed a postjudgment motion directed to the trial court's judgment, which was denied; she also sought to file other papers prepared by her son, Edward Coke, but those papers were ordered to be struck on motion of FSCU. Coke then timely appealed from the default judgment to this court.

"One primary principle of the Alabama Rules of Civil Procedure is that the parties to an action should be afforded a prompt and fair trial upon the merits. Inherent in this principle is that default judgments are not favored, and, while the trial court has discretion to grant such judgments, the exercise of discretion should be resolved in favor of the defaulting party where there is doubt as to the propriety of a default judgment."

Hutchinson v. Hutchinson, 647 So.2d 786, 788 (Ala. Civ. App. 1994) (citations omitted).

Rule 55, Ala. R. Civ. P., sets forth the procedure that must be followed in order for a default judgment to be appropriate. As this court noted in Griffin v. Blackwell, 57 So.3d 161 (Ala. Civ. App. 2010) :

" 'The first step is the entry of a default. When a party against whom affirmative relief is sought fails to plead or otherwise defend the action and that fact is made to appear by affidavit or otherwise, the clerk enters a default. [ Rule] 55(a). A judgment by default may then be entered.'
".... Thus, a party must first obtain an entry of default by the clerk or the trial court before he or she can obtain a default judgment from the trial court."

57 So.3d at 163-64 (quoting J & P Constr. Co. v. Valta Constr. Co., 452 So. 2d 857, 859 (Ala. 1984) ) (emphasis added). The record in this case does not reflect that the trial court or the clerk of the trial court was asked by FSCU to enter a default as to Coke; indeed, FSCU's filings indicate a recognition that the preliminary matter of Coke's motion for a more definite statement was due to be adjudicated before the case could move forward.

In Larkin v. Branch Banking & Trust Co., 101 So.3d 239 (Ala. Civ. App. 2012), this court considered a similar issue to that presented in this case. In that case, a plaintiff moved for the entry of the defendant's default and for the entry of a default judgment, after which the defendant filed a motion, pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking dismissal on the basis that the plaintiff had failed to state a valid claim. Four days later, the trial court entered a default judgment notwithstanding the defendant's having interposed his motion to dismiss. In reversing the judgment on the basis that the defendant had "otherwise defended" against the claim, we cited caselaw and secondary authority interpreting the federal procedural rule analogous to our Rule 55 for the proposition that a defendant's challenges to " 'the sufficiency of the prior pleading' " or motions " 'for better particulars' " would constitute efforts to "otherwise defend" against a plaintiff's complaint in the absence of an answer. 101 So.3d at 241 (quoting 10A Charles A. Wright et al., Federal Practice and Procedure: Civil § 2682 (3d ed.), and Bass v. Hoagland, 172 F.2d 205, 210 (5th Cir. 1949) ).

In this case, we conclude that the trial court erred by, sua sponte, determining Coke to be in default and entering a default judgment against her despite the pendency of her motion seeking a more definite statement of FSCU's claim against her. We therefore reverse that judgment and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

All the judges concur.


author: THOMPSON, Presiding Judge.

text:
    M.B. v. B.B. and A.B.
    2161057 2161058 2161059
    Court of Civil Appeals of Alabama.
    May 4, 2018
    Lisa M. Ivey, Jasper, for appellant.
    Jennifer Cooley and Richard Chancey of The Law Firm of Chancey & Cooley, LLC, Phenix City.
   THOMPSON, Presiding Judge.

This is the second time M.B. ("the mother") and B.B. and A.B. ("the custodians") have been before this court. In our earlier opinion, we set forth the procedural history as follows:

"The record indicates the following pertinent procedural history and facts. The mother has lived in Colorado for the last 15 years. The child at issue was born in February 2014 in Colorado. The mother ended her relationship with R.L., who is the child's alleged father, in January 2015, when the child was almost 11 months old, and she moved with the child to a new apartment in the Denver, Colorado, area. On approximately January 10, 2015, the mother was arrested for driving under the influence after being stopped for a minor traffic violation. Following that arrest, the Colorado Department of Human Services ('CDHS') took the child into protective custody. Testimony from A.B. indicates that the child spent 19 days in foster care in Colorado. Thereafter, with the mother's permission, CDHS contacted the custodians, who live in Alabama, about serving as a relative placement for the child, and they agreed to take the child. The child has lived in the custodians' home since January 29, 2015."

M.B. v. B.B., 244 So.3d 128, 129 (Ala. Civ. App. 2017) (footnotes omitted).

On June 17, 2015, the custodians filed a petition in the Lee Juvenile Court ("the juvenile court") seeking to have the child declared dependent and requesting an award of custody of the child. That action was designated as case number JU-15-303.01. On July 24, 2015, the juvenile court entered a pendente lite order in case number JU-15-303.01 in which it, among other things, found the child to be dependent and awarded custody of the child to the custodians. In that July 24, 2015, order, the juvenile court specified that, if the issue of dependency was not resolved or if a "request for a return of custody" was not filed before July 1, 2016, the July 24, 2015, order would become final.

On June 30, 2016, the mother filed a petition seeking the return of custody of the child. The juvenile-court clerk designated that petition as initiating case number JU-15-303.02; however, as this court noted in M.B. v. B.B., 244 So.3d at 130, "it is clear that the mother's request was for a return of custody in the original dependency action and that the juvenile court properly treated it as such." The juvenile court conducted an ore tenus hearing, and on February 14, 2017, the juvenile court entered a judgment in case number JU-15-303.02 in which it again found the child to be dependent, awarded custody of the child to the custodians, and ordered that the action be closed. The mother timely appealed that judgment. M.B. v. B.B., supra. This court reversed the February 14, 2017, judgment and remanded the cause to the juvenile court for the juvenile court to examine and determine whether it had subject-matter jurisdiction. M.B. v. B.B., supra.

In M.B. v. B.B., supra, this court, ex mero motu, questioned the jurisdiction of the juvenile court to consider the dependency action, including the mother's petition seeking the return of custody, and to enter a judgment finding the child to be dependent. In that opinion, this court noted that the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs custody actions, including dependency actions. M.B. v. B.B., 244 So.3d at 131 (citing § 30-3B-102(4), Ala. Code 1975; M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala. Civ. App. 2008) ; and H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014) ). This court observed that because the child had not been in Alabama for six months at the time the dependency action was filed, "[i]t did not appear that" Alabama "could be said to be the child's 'home state' under" the UCCJEA and, therefore, that the record did not demonstrate that the juvenile court had jurisdiction to resolve that action. M.B. v. B.B., 244 So.3d at 132. However, this court noted that the juvenile court could exercise emergency jurisdiction under the UCCJEA and that, under certain conditions, that emergency jurisdiction might ripen into subject-matter jurisdiction over the dependency action. M.B. v. B.B., supra. This court explained:

"We acknowledge that, under certain circumstances, an Alabama court may take actions pertaining to a child under the emergency-jurisdiction provision of the UCCJEA. See § 30-3B-204, Ala. Code 1975. However, 'a juvenile court exercising temporary emergency jurisdiction under § 30-3B-204 does not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it.' J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 385 (Ala. Civ. App. 2013).... However, in order to properly exercise subject-matter jurisdiction after utilizing emergency jurisdiction under the UCCJEA, the juvenile court would have had to comply with the requirements of § 30-3B-204, including provisions specifying that it communicate with a Colorado court that might have exercised jurisdiction over the child.[ ] The record before this court contains no indication that the juvenile court has done so."

M.B. v. B.B., 244 So.3d at 132-33 (footnote omitted). This court reversed the February 14, 2017, judgment in case number JU-15-303.02 and remanded the cause for the juvenile court to conduct further proceedings and to receive further evidence, if necessary, to determine whether it could properly exercise subject-matter jurisdiction over the proceedings in the juvenile court. M.B. v. B.B., 244 So.3d at 133. This court's opinion concluded:

"[G]iven the lack of evidence in this case pertaining to whether the juvenile court properly exercised jurisdiction over the dependency action, we reverse the judgment of the juvenile court and remand the cause for a timely determination by the juvenile court, based, if necessary, on its receipt of additional evidence, on the issue of its jurisdiction under the UCCJEA. D.B. v. Coffee Cty. Dep't of Human Res., [26 So.3d 1239 (Ala. Civ. App. 2009) ]; M.J.P. v. K.H., 923 So.2d 1114, 1117 (Ala. Civ. App. 2005)."

M.B. v. B.B., 244 So.3d at 133.

On remand, the juvenile court ordered the parties to gather information on the issue of whether there existed any past or current proceedings concerning the child in the Colorado courts, and it scheduled a hearing for September 5, 2017. On September 1, 2017, the mother filed a motion to set aside or vacate the juvenile court's orders in the dependency action on the basis of a lack of subject-matter jurisdiction.

On September 5, 2017, the juvenile court conducted a hearing at which it heard the arguments of the parties' attorneys. The juvenile court did not receive any evidence at that September 5, 2017, hearing. Also on September 5, 2017, the custodians initiated a new action, designated as case number JU-15-303.03, in which they alleged that the child was dependent and sought an award of custody of the child.

On September 15, 2017, the juvenile court entered identical orders in case numbers JU-15-303.01, JU-15-303.02, and JU-15-303.03. In those orders, the juvenile court made a number of findings and statements concerning the issue of its own subject-matter jurisdiction.

The mother filed a petition for a writ of mandamus in each action, and this court elected to treat those petitions as appeals. See Price v. Clayton, 18 So.3d 370, 374-75 (Ala. Civ. App. 2008). We have consolidated the appeals. Before this court, in addition to arguing that the juvenile court lacked subject-matter jurisdiction over the actions filed below, the mother argues that the juvenile court's September 15, 2017, orders do not comply with this court's mandate set forth in M.B. v. B.B., supra. The September 15, 2017, orders set forth the juvenile court's determination that it had properly exercised emergency jurisdiction over the custodians' original dependency action pursuant to § 30-3B-204(a), Ala. Code 1975; the juvenile court then asked the parties to brief whether its earlier orders were final. The court's September 15, 2017, orders provide, in part:

"[A] child-custody determination made under 204(a) 'becomes a final determination if it so provides and this state becomes the home state of the child.' § 30-3B-204(a), Ala. Code 1975. This court's order of July 24, 2015, did, in fact, provide that it was set to become a terminal order by July 1, 2016.... The subsequent order of February 14, 2017, following the trial on the mother's request to modify, likewise denotes that it was a final order....
"The parties are now requested to brief the Court on whether or not this Court's prior orders have now become final under § 30-3B-204(b) or some other authority, and whether or not Alabama now has exclusive continuing jurisdiction since there has been no action in Colorado to supersede it."

The record indicates that, in response to the September 15, 2017, orders, the child's guardian ad litem filed a brief as requested by the juvenile court. The mother filed in case number JU-15-303.03 a motion to stay the briefing requested in the September 15, 2017, orders. In response to the mother's motion to stay, the juvenile court ordered that briefs would be due on September 20, 2017. On that date, the mother filed in all three actions a brief arguing that the juvenile court lacked subject-matter jurisdiction. Before the juvenile court could rule further, however, the mother, on September 22, 2017, sought relief in this court. The juvenile court entered an order in each action stating that it would not make any further rulings pending this court's ruling.

Before this court, the mother has argued that the juvenile court failed to comply with this court's directions in M.B. v. B.B., supra. The mother has also maintained that the juvenile court lacks subject-matter jurisdiction. The record indicates that the juvenile court conducted a hearing on the issue of its jurisdiction and, based on the arguments it received at that hearing, determined that it had exercised emergency jurisdiction over the original dependency action. As noted in our earlier opinion, a juvenile court exercising emergency jurisdiction may not make a dependency finding and a custody determination incident to such a finding. M.B. v. B.B., 244 So.3d at 133 (citing J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 385 (Ala. Civ. App. 2013) ). Although a juvenile court may acquire subject-matter jurisdiction under certain circumstances after exercising emergency jurisdiction, see § 30-3B-204, in its September 15, 2017, orders the juvenile court did not make a determination regarding whether such circumstances existed. Rather, the juvenile court asked the parties for additional briefs to assist it in making that determination. The mother sought relief in this court before the juvenile court could rule after its request for additional briefs. We conclude that the mother has prematurely sought relief in this court. Accordingly, we dismiss the mother's appeals and remand the causes to the juvenile court for it to complete its determination regarding the issue of its subject-matter jurisdiction.

The mother's motion for an award of an attorney fee is denied.

2161057-APPEAL DISMISSED.

2161058-APPEAL DISMISSED.

2161059-APPEAL DISMISSED.

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

      In M.B. v. B.B., supra, this court mistakenly stated that the July 24, 2015, order had been entered on May 10, 2015.

      As we noted in M.B. v. B.B., 244 So.3d at 130 n. 6, "[a]lthough the February 14, 2017, judgment is designated as being entered in case no. JU-15-303.02, it is clear that that judgment pertains to the original dependency action initiated by the custodians."

      That observation was based on our assumption that the dependency action had been initiated before May 10, 2015-i.e., less than six months after the child had been placed with the custodians in Alabama on January 29, 2015. See M.B. v. B.B., supra. Although we were mistaken about the relevance of May 10, 2015, see note 1, supra, our reasoning in M.B. v. B.B. is still valid: the custodians' dependency action was commenced on June 17, 2015, less than six months after January 29, 2015; thus, it still "does not appear that, at the time the dependency action was initiated, Alabama could be said to be the child's 'home state' under the UCCJEA. M.B. v. B.B., 244 So.3d at 132.

      As in M.B. v. B.B., supra, this court continues to make "no determination whether the juvenile court could properly exercise jurisdiction pursuant to § 30-3B-204 under the facts of this case." 244 So.3d at 133 n. 8.


text:
    Edward CROSBY and Valerie Crosby v. SEMINOLE LANDING PROPERTY OWNERS ASSOCIATION, INC.
    2170070
    Court of Civil Appeals of Alabama.
    May 4, 2018
    Sarah B. Dorger of The Dorger Law Firm, LLC, Spanish Fort, for appellants.
    James P. Coleman III, Robertsdale, for appellee.
   THOMPSON, Presiding Judge.

Edward Crosby and Valerie Crosby appeal from an order of the Baldwin Circuit Court ("the trial court") purporting to extend the duration of a temporary restraining order ("the first TRO") that had previously been entered against them. In the order "extending" the first TRO ("the second TRO"), the trial court directed that, for good cause shown, the second TRO would remain in place until a hearing could be held on the request of Seminole Landing Property Owners Association, Inc. ("SLPOA"), for a preliminary injunction. In the second TRO, the trial court consolidated a hearing on the preliminary injunction with a trial on the merits, and it scheduled the trial for November 29, 2017. The trial was continued, and, as of the date of this opinion, it still has not been held.

The record indicates that, on August 4, 2017, SLPOA filed a complaint that, among other things, sought injunctive relief against the Crosbys in connection with the construction of a building ("the building") the Crosbys were erecting on their property. SLPOA alleged that the building violated the setback provisions set forth in the restrictive covenants governing the Crosbys' property. Specifically, SLPOA alleged that the covenants required all buildings to be set back ten feet from the side-lot lines of the property and that the building was less than two feet from a side-lot line.

On August 9, 2017, SLPOA filed in the trial court an ex parte application for a temporary restraining order ("TRO"). The application included the affidavit of James Mann, the president of the Seminole Landing Homeowners Association, who stated that, before SLPOA filed the complaint and the application for a TRO, the Crosbys had been notified by letter of their alleged breach of the restrictive covenants. Mann also said that he had placed several telephone calls to Edward Crosby about the placement of the building and had told the Crosbys' construction crew that the building violated the restrictive covenants. It is undisputed that the Crosbys were not served with the ex parte application for a TRO.

On August 12, 2017, the trial court entered an order granting the application for a TRO and directing SLPOA to prepare a proposed order. On August 14, 2017, the trial court entered the first TRO ordering, among other things not germane to this opinion, that construction of the building "shall cease immediately." The first TRO explicitly stated that it would remain in effect until August 23, 2017, when a hearing on the matter was scheduled.

The Crosbys received personal service of both the complaint in this matter and the first TRO on August 17, 2017. After obtaining counsel, the Crosbys requested a one-week continuance of the August 23, 2017, hearing because their attorney had a scheduling conflict with that date. The Crosbys requested

"a short, one-week extension of the hearing from August 23 to August 30. It is undersigned's intent in asking for such a short extension to allow the current [TRO] to remain in place and that neither side lose any positions, defenses, or claims by the granting of such extension."

The trial court granted the continuance and rescheduled the hearing on a TRO for September 20, 2017. The morning of the hearing, the Crosbys filed a motion to dissolve the first TRO. In their motion, the Crosbys contended that, among other things, the TRO failed to meet the requirements of Rule 65, Ala. R. Civ. P.

A transcript of the September 20, 2017, TRO hearing appears in the record on appeal. At the hearing, the attorney for SLPOA notified the trial court that, by the time the first TRO was issued on August 14, 2017, the building had been completed. SLPOA's attorney said that he did not know whether there was "anything to restrain [the Crosbys] from." SLPOA's attorney also told the trial court that SLPOA wished to go ahead with the trial on the merits, but on a future date, because the September 20 hearing was only for the purpose of discussing the TRO. The trial court stated that the ten days allowed for the operation of the first TRO had already expired, see Rule 65(b), Ala. R. Civ. P., and it proposed that the parties agree to maintaining the status quo until a trial on the merits could be held.

In response, the attorney for the Crosbys acknowledged that the building was "substantially complete." She also agreed with the trial court that the first TRO had expired; however, she still appeared to seek to have it dissolved. The Crosbys' attorney also "objected to" a trial on the merits, saying "we're entitled to an evidentiary hearing before there's-on a preliminary injunction before there's [an] ultimate trial on the merits." She pointed out that legal questions existed regarding whether the building was subject to the restrictive covenants.

The trial court again asked whether the parties would agree to maintain the status quo until a trial on the merits could be held. The attorney for SLPOA agreed, stating that a TRO at that point was moot because the building had already been erected. The Crosbys' attorney, on the other hand, argued that if the trial court "were to issue any kind of order right now maintaining the status quo, it would be in violation of Rule 65, in that we are entitled to a hearing on a preliminary injunction." She also stated that the building was intended to be a pump house and the Crosbys intended to go forward on the installation of a water-filtration system.

The trial court told the parties that it would hold an additional hearing before the trial on the merits but that it had been trying to save them time. The trial court stated that, because the Crosbys intended to move forward with additional work on or in the building, SLPOA needed to respond to the Crosbys' motion to dissolve the first TRO. The trial court reiterated its position that it would like to maintain the status quo until a trial on the merits could resolve the matter.

On September 27, 2017, SLPOA filed its response to the motion to dissolve the first TRO. SLPOA also moved the trial court for a preliminary injunction and filed a brief in support of a preliminary injunction. In its motion, SLPOA reincorporated the verified allegations it made in its complaint and in its application for the TRO, which included Mann's affidavit. The Crosbys did not respond to SLPOA's motion for a preliminary injunction.

On October 2, 2017, the trial court entered the second TRO, holding as follows:

"Motion to dissolve TRO filed by [the Crosbys] is hereby denied. Pursuant to Rule 65(b) [, Ala. R. Civ. P.], the court extends the duration of the TRO for good cause shown until a hearing can be held on [SLPOA]'s request for a preliminary injunction. Pursuant to Rule 65(a)(2) [, Ala. R. Civ. P.], the court hereby consolidates a hearing with a trial on the merits on November 29, 2017, at 1PM at the Fairhope Satellite Courthouse."

The Crosbys appealed from the second TRO within 14 days to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, the Crosbys argue that the first TRO was improper for a number of reasons, including that it was entered without notice, and that, therefore, the trial court could not have "extended" the first TRO in the second TRO.

During the course of the September 20, 2017, hearing, the parties and the trial court seemed to acknowledge that the first TRO had expired by its own terms because more than ten days had passed since it had been issued. See Rule 65(b), Ala. R. Civ. P. We therefore construe the second TRO as a new TRO and not simply as an "extension" of the previous one.

" ' "The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." '
" King v. Campbell, 988 So.2d 969, 976 (Ala. 2007) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) )."

Davis v. Davis, 221 So.3d 474, 480-81 (Ala. Civ. App. 2016).

In this case, the expiration of the first TRO, the holding of the September 20, 2017, hearing at which the Crosbys were present, and the trial court's entry of the second TRO render moot any issues regarding the propriety of the first TRO. See Lang v. Lang, 61 So.3d 311, 317 (Ala. Civ. App. 2010) (citing Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 908 So.2d 243, 245-46 (Ala. Civ. App. 2003) ) (holding that a court will not decide a legal issue that is irrelevant to the outcome of case). Because the second TRO supplanted the first TRO, there is no action this court can take regarding the first TRO that will affect the propriety of the second TRO. Davis, supra, and Lang, supra. Thus, we will not consider any issues regarding the propriety of the first TRO.

Furthermore, in light of the undisputed facts that the Crosbys were present at the September 20, 2017, hearing and that their attorney presented arguments at that hearing, the arguments the Crosbys make on appeal asserting that the second TRO is due to be dissolved because they did not have notice of the first TRO are moot and also will not be considered. Davis, supra, and Lang, supra.

However, the Crosbys present additional grounds for their argument that the second TRO must be "dissolved." Specifically, they contend that the second TRO fails to comply with Rule 65, Ala. R. Civ. P., in a number of ways that require reversal. First, they argue that the second TRO (whether it is characterized as a TRO or a preliminary injunction) fails to meet the form and scope requirements set forth in Rule 65(d).

The second TRO purports to "extend" the time the first TRO was effective "until a hearing [could] be held on [SLPOA's] request for a preliminary injunction." The second TRO also consolidates that hearing with a trial on the merits. It does not set forth the conduct that is sought to be restrained. Rule 65(d)(1) requires that the following information be included in a TRO:

"Every order granting a restraining order shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."

(Emphasis added.) Likewise, if the second TRO were to be characterized as a preliminary injunction, Rule 65(d)(2) requires that

"[e]very order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."

Because the second TRO does not contain a description of the act or acts to be restrained, we agree with the Crosbys that it fails to comply with the requirements of Rule 65(d)(1) and (2). Accordingly, the second TRO is due to be reversed.

The Crosbys further argue that the second TRO must be reversed because it fails to require SLPOA to post security, as required by Rule 65(c), Ala. R. Civ. P. However, the first TRO required SLPOA to post $500 as security with the circuit clerk's office. There is no indication in the record that the money posted was returned to SLPOA upon the expiration of the first TRO. Therefore, we conclude that the security required by Rule 65(c) was still in place, and no other security was necessary.

The Crosbys next assert that the $500 security ordered in the first TRO was an insufficient amount. There is no evidence in the record that this issue was presented to the trial court. " '[I]t is a well-settled rule that an appellate court's review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.' " Neal v. Neal, 856 So.2d 766, 778 (Ala. 2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994) ). Therefore, we decline to consider the sufficiency of the security as a basis for reversal of the trial court's second TRO.

The Crosbys also assert that, by the time of the September 20, 2017, hearing, the basis for SLPOA's decision to seek injunctive relief, i.e., preventing the construction of the building that was allegedly in violation of the applicable restrictive covenants, rendered the need for such relief moot. At that hearing, SLPOA agreed that there was no longer a need for a TRO. However, we note that, at the hearing, the Crosbys told the trial court they would not agree to maintain the status quo until trial because they intended to go forward with installing a water-filtration system. From the comments made during the hearing, it appears to this court that, in entering the second TRO, the trial court was attempting to force the Crosbys to maintain the status quo until a trial on the merits could be held. Because of the lack of detail in the second TRO, however, this court is unable to determine whether the trial court intended for the Crosbys to cease work inside the building or whether it intended to order a halt to construction of the building, as stated in the first TRO.

By all accounts, the building was already "substantially complete" when the second TRO was entered, thus possibly rendering the TRO moot. At this time, this court does not have sufficient information to determine whether the TRO was, in fact, moot or whether it was intended to prevent SLPOA from incurring further harm from the Crosbys' actions inside the building. Therefore, for the reasons set forth above, we reverse the second TRO, and we remand this cause to the trial court with instructions for it to determine whether the need for a TRO is moot at this stage of the litigation. If the trial court determines that the need for a TRO is not moot, then the trial court is instructed to enter an order in compliance with Rule 65(d). Regardless of whether the trial court determines that there is a continued need for a TRO or preliminary injunctive relief at this stage of the proceedings, we find no reason for the trial court to delay the trial on the merits, which SLPOA requested at the September 20, 2017, hearing.

The Crosbys' request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      We note that Rule 65(b), Ala. R. Civ. P., requires that the party moving to dissolve a TRO is to provide the party who obtained the TRO with at least two days' notice "or on such shorter notice to that party as the court may prescribe." The record indicates that the trial court was not aware that the Crosbys intended to file their motion to dissolve the TRO until the morning of the September 20, 2017, hearing.


author: PITTMAN, Judge.

text:
    EX PARTE ALABAMA DEPARTMENT OF LABOR
    (In re: Ella M. Chism v. Alabama Department of Labor)
    2170478
    Court of Civil Appeals of Alabama.
    May 4, 2018
    Joseph S. Ammons, gen. counsel, and Donald M. Harrison III, asst. gen. counsel, Alabama Department of Labor, for petitioner.
    Submitted on mandamus petition only.
   PITTMAN, Judge.

On February 14, 2018, pursuant to Rule 21(a), Ala. R. App. P., the Alabama Department of Labor ("the Department") timely filed a petition for the writ of mandamus in this court seeking review of an order of the Bibb Circuit Court entered on February 4, 2018, denying the Department's motion to dismiss an appeal to that court taken by Ella M. Chism ("the employee"), who had sought an award of unemployment-compensation benefits under Ala. Code 1975, § 25-4-1 et seq. On February 15, 2018, pursuant to Rule 21(b), Ala. R. App. P., this court called for answers to the petition to be filed, but none was received from the respondent trial-court judge or the respondent employee. Therefore, in assessing the merits of the Department's petition, this court will "take the averments of fact in the ... petition as true." Ex parte Allison, 238 So.3d 1260, 1262 (Ala. Civ. App. 2017) (citing Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) ).

The attachments to the petition indicate that, on May 7, 2017, the employee was discharged from her employment for having failed to perform her assigned job responsibilities after a previous warning. After the employee had applied for an award of unemployment-compensation benefits, an examiner employed by the Department determined that the employee's misconduct disqualified her from receiving the requested benefits under Ala. Code 1975, § 25-4-78(3) b. The Department's "Notice of Determination" was mailed to the employee on June 2, 2017, as evidenced by the "DATE MAILED" set forth in the notice, and the notice contained the following pertinent information regarding the employee's right to review of that determination:

"RIGHT TO APPEAL: You have the right to appeal this determination; however, your appeal rights end 15 calendar days from the date of this notice if mailed or 7 days if delivered (see DATE MAILED or DELIVERED above.) ... [A]ll appeals MUST be filed by a letter addressed to the Hearing and Appeals Division, 649 Monroe Street, Montgomery, AL. 36131, or by fax to 334-956-5891. The appeal must be received within the prescribed time whether filed by mail or fax. Should the last calendar day for filing an appeal fall on a Saturday, Sunday or state holiday or other office closing, the period is extended to the next business day."

(Emphasis added.) The right-to-appeal advisory in the notice stems from the pertinent provisions in Ala. Code 1975, § 25-4-91(d)(1), under which a determination by the Department regarding an applicant's entitlement to unemployment-compensation benefits is deemed "final" unless "any party to whom notice of determination is required to be given shall, within seven calendar days after delivery of such notice or within 15 calendar days after such notice was mailed to his last known address, file an appeal from such decision" (emphasis added). See also Ala. Code 1975, § 1-1-4 (providing that, if the last day for performing an act provided by law to be done is "a day on which the office in which the act must be done shall close," such as a Saturday, "the next succeeding secular or working day shall be counted as the last day within which the act may be done").

In response to the Department's notice of determination, the employee sent a letter to the Department bearing her name and Social Security number in which she stated that she "would like an appeal" because, she said, "[t]his is not right." The letter does not bear a date, although the envelope in which it was mailed to the Department bears a postmark date of June 21, 2017, and the filing stamp of the Department's Hearings and Appeals Division indicates that it was received on June 23, 2017. However, under §§ 25-4-91(d)(1) and 1-1-4, taken together, the final day on which the employee could have timely filed a notice of appeal from the Department's notice of determination was Monday, June 19, 2017, the first working day after Saturday, June 17, 2017, which was 15 calendar days after the date of mailing of the notice. On June 26, 2017, the Department's Hearings and Appeals Division notified the employee that it would hold a hearing limited solely to the issue of the timeliness of the employee's notice of appeal. The Hearings and Appeals Division conducted that hearing on July 7, 2017, at which the employee failed to appear in person or by telephone, and determined on that date that the decision of the Department's examiner "is final" and that the hearing officer was "without jurisdiction to decide the case on its merits." The employee timely filed an application for leave to appeal from that decision, but the Department's Board of Appeals denied that application on August 2, 2017, which denial became final 10 days thereafter. See Ala. Code 1975, § 25-4-94(d).

On September 11, 2017, 30 days after the date on which the ruling of the Board of Appeals became final, the employee filed a paper in the trial court stating that she was "writing ... to request a review of my files" and "to receive my unemployment compensation until I can find employment." That filing was treated by the trial court as a notice of appeal under Ala. Code 1975, § 25-4-95, pursuant to which any party to a proceeding in the Department's Board of Appeals involving an unemployment-compensation-benefits request "who claims to be aggrieved by the decision [of the Board of Appeals] may secure a judicial review thereof by filing a notice of appeal in the circuit court of the county of the residence of the claimant" within 30 days after the decision has become final. The Department responded to the employee's effort to seek judicial review by filing a motion to dismiss challenging the subject-matter jurisdiction of the trial court (see Rule 12(b)(1), Ala. R. Civ. P.), attaching copies of the employee's filings and the Department's records regarding her unemployment-compensation claim and contending that the employee's failure to seek administrative review within the time provided in § 25-4-91(d)(1) of the June 2, 2017, notice of determination barred her right to review. The trial court, as we have noted, entered an order denying that motion, and the Department, within the presumptively reasonable time for seeking review of that order under Rule 21(a)(3), Ala. R. App. P., petitioned for a writ of mandamus.

The Department contends that the trial court acted outside its discretion in declining to dismiss the employee's appeal, asserting that the June 2, 2017, notice of determination has become final and not subject to judicial review. Taking the facts stated in the Department's petition as true, and after reviewing Alabama Department of Labor v. Grayson, 141 So.3d 1081 (Ala. Civ. App 2013), one of the cases upon which the Department relies in its petition, we agree with the Department that the trial court was without jurisdiction to entertain the employee's appeal. In Grayson, the Department appealed from a final judgment of a circuit court reversing the decision of the Department's predecessor agency not to review, on timeliness grounds, its examiner's denial of a worker's claim for unemployment benefits, which judgment was entered after the circuit court had denied a motion to dismiss the worker's appeal.

In reversing the circuit court's judgment, this court concluded in Grayson that reversal was mandated because the worker's initial appeal to the agency's hearing and appeals division had been received in that case "17 days after the notice of determination was mailed ... and, thus, was filed outside the statutory period set forth in § 25-4-91(d)(1)." 141 So.3d at 1083. Our conclusion was based upon several propositions developed in this court's previous decisions construing the statutory framework of unemployment-compensation appeals: (1) that the notice of appeal must actually be received by the Department within the period allowed, not merely mailed within that period; (2) that an appeal from an administrative decision regarding entitlement to unemployment-compensation benefits is not a matter of vested right but is, instead, taken by the grace of statute and must be perfected pursuant to the time and manner prescribed in the controlling statutes; (3) that such an appeal must be dismissed if the requirements of the controlling statutes are not met; and (4) that courts are not authorized to extend a period that is statutorily mandated where the procedure for taking an appeal is exclusive. 141 So.3d at 1082-83.

In this case, the notice of determination of the Department's examiner setting forth the employee's disqualification from receiving unemployment-compensation benefits was mailed on June 2, 2017. Although both § 25-4-91(d)(1) and the notice itself provided that any appeal from the determination would be timely only if taken within 15 days of that mailing date, the employee did not mail a document seeking an appeal from that determination until June 21, 2017. Further, that document was not received by the Department's Hearings and Appeals Division until June 23, 2017, which date, under Grayson, constitutes the "filing date" of that document. On the authority of Grayson, we conclude that the trial court acted outside its discretion in denying the Department's motion to dismiss for lack of subject-matter jurisdiction, and we hereby direct the respondent trial-court judge to enter a judgment dismissing the employee's appeal.

PETITION GRANTED; WRIT ISSUED.

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

      The Department, based upon the cover of its petition, also apparently contends that the mandamus petition should, alternatively, be deemed a "notice of appeal" from the trial court's order. That order, however, was not itself a final order or judgment that will support an appeal, and a petition for an extraordinary writ under Rule 21, Ala. R. App. P., is the proper vehicle to seek review thereof by an appellate court in the absence of a final judgment. See State ex rel. Thomas v. Mixon, 674 So.2d 611, 612 (Ala. Civ. App. 1995) ("The denial of a motion to dismiss is an interlocutory order."); see also Ex parte Director, Dep't of Indus. Relations, 595 So.2d 899, 900 (Ala. Civ. App. 1992) (issuing writ of mandamus to trial-court judge to dismiss untimely appeal in unemployment-compensation matter in response to petition filed by Department's predecessor agency challenging order denying motion to dismiss).

      See Ala. Code 1975, § 6-8-101 (providing that a party may raise, among other defensive grounds, lack of subject-matter jurisdiction "and, losing thereon, proceed to litigate on the merits; and, losing on the merits, the party may appeal and, on appeal, attack the judgment both on the merits and on [the] ground[ ] ... urged below"); accord Rule 4(a)(1), Ala. R. App. P. ("On an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court.").


author: DONALDSON, Judge.

text:
    EX PARTE LIMESTONE COUNTY BOARD OF EDUCATION
    (In re: E.E. v. Limestone County Board of Education)
    2170521
    Court of Civil Appeals of Alabama.
    May 4, 2018
    Karen A. Lynn and J. Brad Emmons of Lanier Ford Shaver & Payne P.C., Huntsville, for petitioner.
    Submitted on mandamus petition only.
   DONALDSON, Judge.

E.E. ("the student") initiated proceedings in the Limestone Juvenile Court ("the juvenile court") against the Limestone County Board of Education ("the Board") by filing a petition seeking judicial review of the decision of the Board to take disciplinary action against the student. In addition, the student asserted claims seeking injunctive relief against the Board. The Board filed a motion to dismiss the proceedings based on its claim of immunity as a state agency. The juvenile court entered an order denying the motion, and the Board has filed a petition for a writ of mandamus directing the juvenile court to vacate that order and to enter an order granting the motion. We grant the Board's petition insofar as it seeks the dismissal of the claims seeking injunctive relief, but we deny the petition insofar as it seeks to dismiss the student's petition seeking the juvenile court's judicial review of the Board's decision.

Background

In its petition for the writ of mandamus, the Board asserts the following facts, which have not been disputed by the student. The student had been attending a high school located within a geographic district assigned by the Board. On October 31, 2017, the student and another student made a telephone call to an elementary school. The call resulted in the evacuation of the students in the elementary school. After a number of proceedings, the Board imposed disciplinary action against the student that required the student to attend an alternative school for the remainder of the school year and, if she met certain conditions, permitted her to return to the high school within her district the following school year.

On January 3, 2018, the student initiated the proceedings in the juvenile court, asserting that the juvenile court had original jurisdiction of the proceedings pursuant to § 12-15-115, Ala. Code 1975. Among other allegations, the student alleged that the Board had inappropriately infringed on her right to attend the public school of her district. As relief, the student sought judicial review of the Board's disciplinary decision as well as an order requiring the Board to permit her to return to her regular school pending the outcome of the proceedings and on a permanent basis.

On January 18, 2018, the Board filed a motion to dismiss the proceedings on the ground that the Board is entitled to immunity pursuant to Article I, § 14, of the Alabama Constitution of 1901. On February 19, 2018, the juvenile court entered an order denying the motion to dismiss. On March 1, 2018, the Board filed the present petition for a writ of mandamus challenging the denial of its motion to dismiss. We asked for a response from the student to be filed by March 15, 2018.

On Friday, March 2, 2018, after the Board filed the present petition, the student filed in the juvenile court a "Motion for Ruling on Temporary Relief Sought By Appellant," requesting an "immediate" return to her regular school pending the outcome of the proceedings. Later that same day, the juvenile court entered an order granting the student's motion and ordering that she be permitted to return to her high school the following Monday morning (March 5, 2018), without awaiting a response from the Board or providing a hearing on the matter. On the evening of Friday, March 2, 2018, the Board electronically filed in this court a motion seeking to stay the juvenile court's March 2, 2018, order or, alternatively, a petition for a writ of mandamus challenging that order. On March 6, 2018, we entered an order denying the motion to stay, citing Rule 8(b), Ala. R. App. P., and notified the parties that this court would treat the March 2, 2018, filing as an additional petition for a writ of mandamus, which was assigned case number 2170533. We asked for responses to be filed to the petition in case number 2170533 by March 9. The student did not file a response. On March 14, 2018, this court entered an order granting the Board's March 2, 2018, petition for a writ of mandamus and directing the juvenile court to vacate its March 2, 2018, order, citing Rule 65(b), Ala. R. Civ. P., Ex parte Hurst, 914 So.2d 840, 842 (Ala. 2005), and Ex parte Hutson, 201 So.3d 570, 573 (Ala. Civ. App. 2016). Ex parte Limestone Cty. Bd. of Educ., 265 So. 3d 276 (Ala. Civ. App. 2018) (table).

In our March 14, 2018, order, we noted that the present petition for a writ of mandamus and the issue of immunity remained pending. The student did not file a response to the present petition. This court has jurisdiction over the present petition pursuant to § 12-3-11, Ala. Code 1975.

Standard of Review

"[A] petition for a writ of mandamus is an appropriate means for seeking review of an order denying a claim of immunity." Ex parte Butts, 775 So.2d 173, 176 (Ala. 2000).

" 'A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' "

Ex parte Jackson Cty. Bd. of Educ., 4 So.3d 1099, 1101-02 (Ala. 2008) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ).

Discussion

The Board contends that it is entitled to a dismissal of the student's petition because, it asserts, it is immune from suit and the juvenile court lacked subject-matter jurisdiction over the proceedings. Because the student did not file any response providing contrary assertions or arguments, we must consider the Board's uncontroverted assertions of fact as true. See Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (considering averments of fact in petition for a writ of mandamus as true in the absence of respondent's answer and brief).

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

Alabama Dep't of Corr. v. Montgomery Cty. Comm'n, 11 So.3d 189, 191-92 (Ala. 2008).

"For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala. 1995) ('County boards of education, as local agencies of the State, enjoy [ § 14 ] immunity.'). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala. 1988) ; Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala. 1984)."

Ex parte Jackson County Bd. of Educ., 4 So.3d at 1102-03 ; see Colbert Cty. Bd. of Educ. v. James, 83 So.3d 473, 479 (Ala. 2011) (holding Colbert County Board of Education immune from state-law claims, including those that sought injunctive relief).

In its mandamus petition, the Board asserts that it is the only defendant named in the proceedings in the juvenile court. As a county board of education, the Board has immunity under Ala. Const. 1901, Art. I, § 14, against the student's claims seeking injunctive relief. We therefore conclude that the Board is entitled to the dismissal of those claims because the juvenile court lacks subject-matter jurisdiction over them.

The student, however, also sought as relief judicial review of the Board's disciplinary decision. In the filing initiating the underlying proceedings, the student provided legal authority for the juvenile court's jurisdiction by citing § 12-15-115, Ala. Code 1975, which states, in relevant part:

"(b) A juvenile court also shall have original jurisdiction in proceedings concerning any child in either of the following instances:
"....
"(2) Where it is alleged that the rights of a child are improperly denied or infringed in proceedings resulting in suspension, expulsion, or exclusion from a public school."

The student alleged that the Board had inappropriately infringed on her right to attend the public school of her district by placing her in an alternative school. Cf. C.L.S. by & through S.S.C. v. Hoover Bd. of Educ., 594 So.2d 138, 139 (Ala. Civ. App. 1991) ("[A] child's right to education may be improperly infringed upon when a school board takes disciplinary action that is unreasonable or arbitrary."). Based on the materials before us and § 12-15-115(b)(2), we cannot say that the Board is entitled to mandamus relief dismissing the student's petition insofar as the student sought judicial review of the Board's decision. See Dothan City Bd. of Educ. v. V.M.H., 660 So.2d 1328, 1330 (Ala. Civ. App. 1995) (holding that juvenile court had original jurisdiction in judicial-review proceeding regarding the Dothan City Board of Education's suspension and placement of a student in an alternative school). We note that this court has reviewed the judgments of juvenile courts that provided judicial review of a board of education's disciplinary decision. See, e.g., Monroe Cty. Bd. of Educ. v. K.B., 62 So.3d 513 (Ala. Civ. App. 2010) (holding county board of education's policy unconstitutionally ambiguous and vague).

The Board argues that, notwithstanding § 12-15-115, its immunity as a state agency bars the underlying proceedings in their entirety. As discussed, we agree that the Board has absolute immunity from civil liability. See Ex parte Jackson Cty. Bd. of Educ., supra, 4 So.3d 1099 ; Alabama State Docks v. Saxon, 631 So.2d 943, 948 (Ala. 1994) ("[Alabama] State Docks has been held to be a state agency and absolutely protected from civil liability under § 14's umbrella of sovereign immunity."); Black's Law Dictionary 867 (10th ed. 2014) (defining "absolute immunity" as "[a] complete exemption from civil liability ...."). Accordingly, a court that renders a judgment finding liability on the part of the Board would violate Ala. Const. 1901, Art. I, § 14. See John E. Ballenger Constr. Co. v. State Bd. of Adjustment, 234 Ala. 377, 380, 175 So. 387, 389 (1937) ("If it be conceived that the act attempted to create any sort of agency or court with the power to render judgment which would fix a liability against the state, it would violate section 14, Constitution.").

However, the student sought judicial review of the Board's decision separately from her claims seeking injunctive relief. The student's seeking judicial review does not include any possibility of imposing liability on the Board. Alabama Const. 1901, Art. I, § 14, entitles the Board to immunity only when it is named as "a defendant in any court of law or equity." Excluding the claims seeking injunctive relief, the Board is not a defendant in a suit seeking monetary damages or an equitable remedy. Therefore, § 14 does not bar the student's petition insofar as it seeks judicial review of the Board's decision. See State v. Bibby, 47 Ala. App. 240, 243, 252 So.2d 662, 664 (Crim. App. 1971) (holding that § 14 did not bar proceedings regarding the writ of error coram nobis because the State was not a defendant, no money or property was at stake, and "§ 14 of the Constitution does not inhibit the trial courts from reexamining questions of the fact which led to the original judgment of conviction").

The sole issue before this court is whether the Board is entitled to the writ of mandamus directing the juvenile court to dismiss the underlying proceedings in their entirety based on Ala. Const. 1901, Art. I, § 14. We are not called upon to discuss the procedure by which the student seeks judicial review separately from the claims seeking injunctive relief. We, therefore, are not compelled to discuss the extent of a juvenile court's jurisdiction pursuant to § 12-15-115, the requirements for seeking judicial review of a board of education's disciplinary decision, or all the types of relief that can be granted by the juvenile court. From the materials submitted, we cannot conclude that the juvenile court lacks subject-matter jurisdiction over the student's petition insofar as it seeks judicial review of the Board's decision.

Conclusion

Based on the foregoing, we grant the Board's petition in part and issue a writ of mandamus directing the juvenile court to dismiss the student's claims seeking injunctive relief. We deny the Board's petition insofar as it sought the dismissal of any judicial review by the juvenile court of the Board's disciplinary ruling.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Thompson, P.J., concurs.

Pittman, Thomas, and Moore, JJ., concur in the result, without writings.

      Section 12-3-11 provides that "[e]ach of the courts of appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction."

      We express no opinion as to whether the juvenile court had the authority to grant the injunctive relief requested if immunity did not apply to those claims.