author: MOORE, Judge.

text:
    Paul O'CONNER v. Herbert J. FURMAN, Jr., and Marian Furman
    2160364
    Court of Civil Appeals of Alabama.
    September 1, 2017
    Virginia R. Lucci, Montgomery, for appellant.
    John Furman, Loxley, for appellees.
   MOORE, Judge.

Paul O'Conner appeals from a judgment of the Wilcox Circuit Court ("the trial court") granting a motion for a summary judgment, see discussion, infra, filed by Herbert J. Furman, Jr., and Marian Furman. We reverse the trial court's judgment.

Facts and Procedural History

On September 19, 2014, O'Conner filed a complaint against the Furmans, asserting that they had trespassed on his property by cutting the timber on that property ("the civil trespass action"). O'Conner included in the complaint a description of his property on which the Furmans had allegedly cut timber. On October 31, 2014, the Furmans filed a motion to dismiss O'Conner's complaint. They asserted, among other things, that the parties had previously been before the trial court for a determination of the boundary line between the property belonging to O'Conner and the property belonging to the Furmans in case no. CV-03-79 ("the boundary-line action"); that the boundary line between the parties' properties had been determined by a judgment entered on April 9, 2007, in the boundary-line action; that O'Conner had not appealed that judgment, but had filed more than four motions to set aside that judgment, each of which had been denied; that, on March 21, 2009, O'Conner had been found in contempt of a portion of the judgment entered in the boundary-line action directing the parties not to trespass against one another; and that, in a criminal proceeding conducted in the Wilcox District Court ("the district-court action"), Herbert had been found innocent of criminal trespass on May 1, 2013, with regard to the same allegations as those asserted by O'Conner in his complaint in the civil trespass action. The Furmans attached to their motion to dismiss the judgment entered in the boundary-line action; in that judgment, Judge Marvin W. Wiggins had made the following conclusions:

"1. That the boundary line between [the] parties is hereby established as the West and South lines displayed on Exhibit One as the Resurvey of Olivia Martin Property.
"2. That the [re]survey of Olivia Martin property labeled as Exhibit One is hereby incorporated into the Order and made an exhibit hereto.
"3. That the claim for damages is hereby DENIED."

O'Conner filed a response to the Furmans' motion to dismiss on January 12, 2015, asserting, among other things, that the trial court's judgment in the boundary-line action was not a final judgment and, thus, that the doctrine of res judicata was inapplicable to his claim in the civil trespass action. He attached to his response certain filings or portions thereof from the boundary-line action. On January 13, 2015, the trial court denied, without prejudice, the Furmans' motion to dismiss. In that same order, the trial court transferred the case to Judge Wiggins.

On February 3, 2015, the Furmans filed a second motion to dismiss; they attached to their motion a number of filings from the boundary-line action and asserted that the judgment in the boundary-line action barred O'Conner's complaint in the civil trespass action, based on the doctrines of res judicata and equitable estoppel. Following the recusal of Judge Wiggins and the remaining judges of the Wilcox Circuit Court, the Alabama Supreme Court entered an order assigning the case to Judge C. Robert Montgomery, a circuit-court judge in Washington County.

On January 4, 2017, the Furmans submitted a number of supplementary exhibits to their second motion to dismiss, including, among other things, exhibits from the boundary-line action and the district-court action. A hearing was held on January 25, 2017. On January 31, 2017, the trial court entered an order indicating that it had reviewed the file in the boundary-line action and all the pleadings, motions, and exhibits that had been filed in the civil trespass action and had considered the arguments of counsel presented at a hearing conducted on January 31, 2017. The trial court concluded that the doctrines of res judicata and collateral estoppel barred O'Conner's claim in the civil trespass action, and it "dismissed" O'Conner's complaint, with prejudice. Additionally, the trial court noted: "Because of the repeated abuse of the legal process demonstrated by ... O'Conner, it is further ordered that any further frivolous filings by ... O'Conner will constitute contempt of this Court, and a violation of this Order." O'Conner filed his notice of appeal to the Alabama Supreme Court on February 21, 2017; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Standard of Review

Although the Furmans styled their second motion as a motion to dismiss, the trial court expressly stated in its judgment that it had considered all the pleadings, motions, and exhibits filed in the civil trespass action. Accordingly, that motion was converted from a motion to dismiss into a motion for a summary judgment. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 792 (Ala. 2007) (concluding that, because the trial court had considered matters outside the pleadings, because the face of the complaint did not reference the prior litigation, and because the doctrines of res judicata and collateral estoppel were at issue, a motion to dismiss should have been treated as one seeking a summary judgment); and Ex parte Price, 244 So.3d 949 (Ala. 2017).

"Our standard of review for a summary judgment is as follows:

" 'We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id."We review the evidence in a light most favorable to the nonmovant." 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala. 2006).' "

Lloyd Noland, 979 So.2d at 793 (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006) ).

Analysis

O'Conner argues on appeal that the trial court erred by granting the Furmans' second motion to dismiss, which, as noted, was converted into a motion for a summary judgment. We agree. The Furmans argued in their second motion that O'Conner's trespass claim was barred by the doctrines of res judicata and collateral estoppel.

" 'The elements of res judicata are " '(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.' " Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala. 2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998) ).'

" Ex parte Chesnut, 208 So.3d 624, 635 (Ala. 2016)."

Osborne v. Osborne, 216 So.3d 1237, 1240 (Ala. Civ. App. 2016). With regard to collateral estoppel, our supreme court explained in Lee L. Saad Construction Co. v. DPF Architects, P.C., 851 So.2d 507, 520 (Ala. 2002) :

"For the doctrine of collateral estoppel to apply, the following elements must be established:
" ' "(1) that an issue in a prior action was identical to the issue litigated in the present action; (2) that the issue was actually litigated in the prior action; (3) that resolution of the issue was necessary to the prior judgment; and (4) that the same parties are involved in the two actions."
" ' Smith v. Union Bank & Trust Co., 653 So.2d 933, 934 (Ala. 1995). " 'Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior [action].' " Smith, 653 So.2d at 934 (quoting Lott v. Toomey, 477 So.2d 316, 319 (Ala. 1985) ).'
" Biles v. Sullivan, 793 So.2d 708, 712 (Ala. 2000). 'Only issues actually decided in a former action are subject to collateral estoppel.' Leverette ex rel. Gilmore v. Leverette, 479 So.2d 1229, 1237 (Ala. 1985) (emphasis added). The burden is on the party asserting collateral estoppel to prove that the issue it is seeking to bar was determined in the prior adjudication. See Adams v. Sanders, 811 So.2d 542, 545 (Ala. Civ. App. 2001) ('Because we have no transcript of the trial in the district court, the burden is on Sanders to show that the district court determined that he was not negligent.').
See also United States v. Cala, 521 F.2d 605, 608 (2d Cir. 1975) ('The burden ... is on [the one asserting collateral estoppel] to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict.')."

O'Conner argues on appeal that the trial court erred in granting the Furmans' second motion because, he asserts, among other things, the judgment in the boundary-line action was not final and, thus, the doctrines of res judicata and collateral estoppel did not apply. He asserts that the judgment entered in the boundary-line action failed to adjudicate a complete border for his property. We note, however, that, for all that appears in the record on appeal in this action, the judgment in the boundary-line action clearly determined the boundary line between the property belonging to O'Conner and the property belonging to the Furmans and denied the Furmans' trespass claim, thus addressing both claims asserted in the Furmans' complaint in the boundary-line action. O'Conner's assertion regarding the failure of the trial court to demarcate the remainder of his property is inapposite; that issue was not before the trial court in the boundary-line action. Accordingly, O'Conner's argument that the judgment in the boundary-line action was not final is without merit.

Although the judgment in the boundary-line action was final, we conclude that the doctrines of res judicata and collateral estoppel are otherwise inapplicable in the civil trespass action. In the boundary-line action, in which O'Conner and the Furmans were all parties, the Furmans filed a complaint seeking a determination of the boundary line between the parties' properties and asserting a trespass claim with regard to O'Conner's removal of a fence between the parties' properties. O'Conner did not assert a claim of trespass against the Furmans in the boundary-line action. Because the same cause of action was not presented in the boundary-line action as has been presented in the civil trespass action and because the issue of trespass as it related to the Furmans' purported cutting of timber was not tried in the boundary-line action, neither res judicata nor collateral estoppel applies such that the boundary-line action bars O'Conner's civil trespass action. With regard to the district-court action, O'Conner was not a party to that action. Accordingly, O'Conner's civil trespass action is also not barred by either the doctrine of res judicata or the doctrine of collateral estoppel as a result of the judgment entered in the district-court action.

O'Conner included in his complaint in the civil trespass action a description of his property that conflicts with the description set out in the judgment entered in the boundary-line action. Without more, however, that conflict does not render O'Conner's civil trespass action to be without merit. The trial court's determination that no genuine issue of material fact exists with regard to the boundaries between the parties' properties does not necessarily result in the failure of O'Conner's trespass claim. To succeed on his trespass claim, O'Conner was required to show that the Furmans had wrongfully cut timber on property belonging to O'Conner. See Cousins v. McNeel, 96 So.3d 846, 858 (Ala. Civ. App. 2012). The Furmans argue on appeal that aerial photos and surveys submitted as exhibits before the trial court clearly indicate that all standing timber is and was on the Furmans' property, as decided in the boundary-line action. We disagree. Although the Furmans submitted surveys and other maps of the parties' properties and the boundary line between the two properties, as determined in the boundary-line action, there is no indication regarding the dates of those maps, whether timber was present on either property or where it was located, or whether timber had been cut by the Furmans and, if so, what portion of the surrounding property the timber had been removed from.

At the hearing on the Furmans' second motion, the Furmans' counsel, who is also the Furmans' son, argued that O'Conner's civil trespass action pertained to the cutting of timber on the Furmans' property, the boundary of which, he said, was as determined in the boundary-line action. We note, however, that "[t]he unsworn statements, factual assertions, and arguments of counsel are not evidence." Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005). The Furmans' attorney's statements indicating that the Furmans had cut timber on their own property cannot be considered evidence in support of the Furmans' motion. Id. O'Conner did not assert at any time before the trial court where, specifically, the alleged trespass had occurred. The Furmans failed to present any evidence in support of their motion indicating that they had not cut any timber on property belonging to O'Conner. Accordingly, they did not meet their burden of proof required to merit a summary judgment in their favor with regard to O'Conner's civil trespass action and the burden did not shift to O'Conner to prove that the alleged trespass had occurred on his property, the boundary of which was determined in the boundary-line action. Accordingly, we reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion. To the extent that O'Conner argues that the trial court erred in prohibiting him from making "further frivolous filings," that argument is obviated by our reversal of the trial court's judgment; accordingly, we decline to address that argument. We note that, as this case proceeds, O'Conner is limited in his assertions of trespass by the boundary line established between the parties' properties in the boundary-line action.

REVERSED AND REMANDED.

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

      We note that, at times, this person's name is spelled "O'Connor" rather than "O'Conner" in the record on appeal. Because the complaint lists the plaintiff's name as "Paul O'Conner," that is the spelling we have adopted in this opinion.

      O'Conner's notice of appeal also lists Olivia W. Martin as an appellee. We note, however, that Martin was not named as a defendant in O'Conner's complaint, nor was Martin served with notice of the complaint or added as a defendant before the trial court at any time. Accordingly, we have not included Martin as an appellee.

      The trial court stated in its order: "Said case is transferred to CV 2003-79, Judge Wiggins." We note that, because a final judgment had been entered in the boundary-line action, see discussion, infra, the trial court's order had the effect of transferring the civil trespass action to Judge Wiggins.

      We note that the Furmans' motion was styled as an "amended" motion to dismiss; because, however, their initial motion to dismiss had been denied, we consider the motion to be a second, or renewed, motion to dismiss. See, e.g., Yan Chen v. Russell Realty, LLC, 193 So.3d 717 (Ala. 2015) (in which a second motion to dismiss was filed after the denial of the first motion to dismiss).

      In Brindley v. Cullman Regional Medical Center, 709 So.2d 1261, 1264 (Ala. Civ. App. 1998), this court reversed a judgment purporting to grant a motion to dismiss because, we held, that motion had been converted into a motion for a summary judgment and because, we concluded, the trial court's apparent consideration of matters outside the pleadings on the motion, without following the procedural requirements of Rule 56, Ala. R. Civ. P., was prejudicial to both parties. In the present case, O'Conner filed a number of exhibits to his response to the Furmans' original motion to dismiss. Moreover, for the reasons stated later in this opinion, O'Conner was not prejudiced by the conversion of the motion to dismiss into a motion for a summary judgment because the burden never shifted to O'Conner to present evidence creating a genuine issue of material fact. Accordingly, to the extent any error might have resulted by the conversion of the motion and the failure to follow the procedural requirements of Rule 56, such error, unlike in Brindley, was harmless, and we decline to reverse the judgment on that basis. See Rule 45, Ala. R. App. P.

      One of the exhibits submitted to the trial court is an order of the Wilcox District Court in the district-court action that indicates, among other things, that O'Conner, as the alleged victim, had sought to appeal the district court's judgment determining that Herbert was not guilty of trespass. The district court noted that O'Conner, although he was the alleged victim, was not a party to the action, and, thus, it found that O'Conner had no right to appeal, pursuant to Rule 30, Ala. R. Crim. P. The district court also observed, however, that it had imposed a mutual trespass order effective between Herbert and O'Conner, and, based on that directive, the district court stated that the circuit-court judge who received the purported appeal was to decide whether O'Conner's appeal was proper and, accordingly, the district court set an appeal bond. We decline to address whether the district court's order setting an appeal bond was proper. We note, however, that the district court's order indicates, and we conclude, that O'Conner, a nonparty, did not have a right to appeal the district court's judgment with regard to its determination that Herbert was not guilty of trespass.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EX PARTE Vernon BARNETT, in his official capacity as the commissioner of the Alabama Department of Revenue; Jefferson County Board of Equalization; Gaynell Hendricks, in her official capacity as tax assessor of Jefferson County; and Charles Wilson, Jr., in his official capacity as assistant tax assessor of Jefferson County
    (In re Glenbrook at Oxmoor I, LLC, and Alabama Affordable Housing Association v. Vernon Barnett, in his official capacity as commissioner of the Alabama Department of Revenue; Jefferson County Board of Equalization; Gaynell Hendricks, in her official capacity as tax assessor of Jefferson County; and Charles Wilson, Jr., in his official capacity as assistant tax assessor of Jefferson County)
    2160639
    Court of Civil Appeals of Alabama.
    September 1, 2017
    Kendrick E. Webb and Jamie H. Kidd of Webb & Eley, P.C., Montgomery; and Keith Maddox, asst. counsel and asst. atty. gen., Alabama Department of Revenue, for petitioner Commissioner of the Alabama Department of Revenue.
    F. Brady Rigdon, asst. county atty., Jefferson County Attorney's Office, Birmingham, for petitioners Jefferson County Board of Equalization, Gaynell Hendricks, in her official capacity as Jefferson County Tax Assessor, and Charles Wilson, Jr., in his official capacity as Jefferson County Assistant Tax Assessor.
    Marc James Ayers, Kenneth M. Perry, and Ethan T. Tidmore of Bradley Arant Boult Cummings LLP, Birmingham, for respondents.
   PER CURIAM.

This mandamus proceeding concerns the proper defendants and venue with respect to an action seeking declaratory and injunctive relief concerning the proper method for determining the valuation of particular properties utilized for housing low-income tenants.

Factual Background

One of the respondents to the mandamus petition, Glenbrook at Oxmoor I, LLC ("Glenbrook"), is the owner of a parcel of real property located in Jefferson County that is used as low-income housing; the building on the property was constructed in approximately 2008 specifically to qualify under federal income-tax law for an annual credit under 26 U.S.C. § 42, which establishes requirements for real property to fall within the so-called "Low Income Housing Tax Credit" ("LIHTC"). Utilizing procedures set forth in the "Property Tax Plan for Equalization" ("the Tax Plan") adopted by the Alabama Department of Revenue ("the Department"), including an addendum thereto pertaining to valuation of subsidized multifamily-housing units ("Addendum P"), the Jefferson County Board of Equalization ("the Board") originally valued Glenbrook's parcel for the 2010 tax year at $15,138,600; however, after that valuation was challenged through administrative procedures, the Board recalculated the value of the property and assessed its value at $7,778,900.

Dissatisfied with the Board's valuation determination, Glenbrook timely invoked judicial-review rights afforded to it under the "Expeditious and Economical Tax Appeals Act," Act No. 259, Ala. Acts 1943, a local act applicable to Jefferson County, which was substantially amended by Act No. 97-394, Ala. Acts 1997, and has been codified at Ala. Code 1975, § 45-37-241.20 (Local Laws, Jefferson County) ("the Act"). Pursuant to the Act, a trial was held before a circuit judge and a three-person commission of real-property valuation experts ("the commission") sitting as the trier of fact, and, after the close of the parties' presentation of evidence, the circuit judge instructed the commission that it was to "fix the valuation of [Glenbrook's] property ... at its fair and reasonable market value," elaborating on the concept as follows:

"Fair market value is the sum arrived at by fair negotiation between an owner willing to sell and a purchaser willing to buy neither being under pressure to do so. An encumbrance on the value of land is one of the factors that a Tax Assessor must consider when assessing the fair market value of property to be taxed. To find the fair market value of the property, you should consider the property's actual rental income."

(Emphasis added.)

Despite the circuit judge's instructions, the commission returned a verdict valuing the property in question at $7,778,900, the precise amount that the Board had previously determined, and a judgment was then entered on the verdict. Glenbrook filed a postjudgment motion that sought, among other things, a new trial on the basis that the commission had violated the circuit judge's instructions to utilize the reduced actual rents paid by the low-income tenants of the property in determining the fair market value of the property because the commission ratified the Board's valuation (which was shown at trial to have been derived by the Board's personnel without regard to actual rents received by the taxpayer). The trial court, after receiving a response from the Board in opposition to Glenbrook's motion, granted the new-trial request.

After the Board's appeal from that new-trial order was transferred from our supreme court, this court affirmed the order, without an opinion. Jefferson Cty. Bd. of Equalization & Adjustment v. Glenbrook at Oxmoor I, LLC, 171 So.3d 695 (Ala. Civ. App. 2013) (table) (" Glenbrook I"). Among the authorities we cited in our order of affirmance in Glenbrook I were Coffee v. Seaboard System R.R., 507 So.2d 476, 477 (Ala. 1987) (holding that, when a "trial court's order [granting a new trial] does not specify the grounds upon which it was based," that order "is due to be affirmed if it is supported by any good ground"); Hill v. Cherry, 379 So.2d 590, 592 (Ala. 1980) (holding that granting a new-trial motion "rests within the sound discretion of the trial court" and gives rise to "a presumption of correctness which will not be disturbed by [an appellate] court unless some legal right was abused and the record plainly and palpably shows the trial court was in error"); Bekins Van Lines v. Beal, 418 So.2d 81, 83 (Ala. 1982) (noting that "[a]n appellate court is more reluctant to reverse the granting of a motion for a new trial than the denying of a motion for a new trial" and "construes the record against the appellant in reviewing the granting of a new trial"); and Pettus v. Shafer, 286 Ala. 625, 628-29, 244 So.2d 573, 576 (1971) (noting that "a verdict rendered in disregard of [jury] instructions, even though the instructions of the court be erroneous, is against the law of the case and, in a proper case, should be set aside," usually "by granting a motion for a new trial"). Our affirmance was thus based upon the conclusion that the trial court could permissibly have deemed the commission to have simply accepted the Board's valuation, which had been determined without any consideration of the actual rentals paid by Glenbrook's tenants, rather than having conformed its verdict to the law of the case, as represented by the circuit judge's express instruction that the "property's actual rental income" should be considered in determining the fair market value of the property in lieu of simply "rubber-stamping" the Board's valuation figure without having considered the rent limitations inherent in the LIHTC program. No party sought certiorari review of this court's decision in Glenbrook I.

After our affirmance in Glenbrook I, the trial court initially set the cause for a trial before a 12-member jury and specified a date by which dispositive motions were to be filed. The Board and Glenbrook then filed cross-motions in which each sought a summary judgment in its favor; the Board contended that it had followed administrative guidance in the form of Addendum P, whereas Glenbrook asserted that the Board's use of Addendum P to disregard rent restrictions on the subject property was contrary not only to the concept of fair market value but also to the instructions given at the previous trial. The exhibits to the parties' cross-motions included the Tax Plan, the Department's "Alabama Appraisal Manual," a transcript of the previous trial, covenant documents outlining the rent restrictions on the subject property, and an appraisal document. Glenbrook then amended its motion to seek a judgment as to the tax years 2012 and 2013 in line with its suggested valuation, as is permitted under § 45-37-241.20(k). After the parties had jointly stipulated that the matter was not due to be tried to a 12-person jury, the trial court entered a summary judgment in favor of Glenbrook that, as amended, valued Glenbrook's parcel at $1,120,000 as of October 1, 2009 (i.e., for the 2010 tax year), and left open the issue of valuation for subsequent years; the trial court ultimately valued the property at $1,165,000 for 2011; $1,050,000 for 2012; $ 1,115,000 for 2013; and $960,000 for 2014.

The Board timely appealed, and our supreme court again transferred the appeal to this court. We affirmed the trial court's judgment, without an opinion. Jefferson Cty. Bd. of Equalization v. Glenbrook at Oxmoor I, LLC, (No. 2150706, July 15, 2016) 231 So.3d 318 (Ala. Civ. App. 2016) (table) ("Glenbrook II"). Among the authorities we cited in our order of affirmance in Glenbrook II was Walden v. ES Capital, LLC, 89 So.3d 90, 107 (Ala. 2011), which discussed the "law-of-the-case doctrine," which prescribes that a rule of law previously decided in a particular case should continue to govern the same issues in subsequent stages in the same case in order to help bring an end to litigation instead of repeatedly litigating an issue already decided. Notwithstanding the contentions of the parties and the numerous amici curiae in Glenbrook II as to the proper valuation vel non of LIHTC properties, the "law of the case" that was dispositive of that appeal was the rule stated in the circuit judge's instructions in the first trial, which specified two factors to be considered in determining the fair market value of the property at issue: (a) encumbrances on the value of the property and (b) the actual rental income of the property; all other issues presented were either not properly argued or were rendered moot by the law-of-the-case doctrine. Again, as was true in Glenbrook I, no certiorari review was sought regarding this court's decision in Glenbrook II.

Subsequent Proceedings

According to the attachments to the mandamus petition filed in this court, after the trial court entered its judgment in Glenbrook II, the value of Glenbrook's real property was assessed for the 2015 tax year at $7,778,900 and for the 2016 tax year at $5,544,000, and Glenbrook has sought judicial review under the Act as to those 2015 and 2016 valuation determinations. In addition to seeking judicial review under the Act, however, Glenbrook and the Alabama Affordable Housing Association (hereinafter referred to collectively as "the plaintiffs") filed a separate civil action in January 2017 in the Bessemer Division of the Jefferson Circuit Court, seeking nonmonetary relief under Ala. Code 1975, § 6-6-220 et seq., and Rule 57, Ala. R. Civ. P., pertaining to declaratory judgments; the complaint in that action names as defendants the commissioner of the Department, Julie P. Magee, in her official capacity; the Board; and the tax assessor of Jefferson County and the assistant tax assessor of Jefferson County in their respective official capacities. Although the action also seeks allied injunctive relief against the named defendants, we will refer to that action as "the declaratory-judgment action." Specifically, the complaint in the declaratory-judgment action primarily asserts that the method utilized by the defendants for determining the ad valorem tax owed with respect to Glenbrook's real property-which, the complaint alleges, stems from the interpretation and application of Addendum P by the defendants in that action-does not yield the fair and reasonable market value of that property given the rent and income restrictions imposed under the federal LIHTC program and that neither Addendum P, to the extent that it constitutes binding guidance from the Department, nor any tax credits received pursuant to federal law should be utilized in the future in assessing LIHTC properties in general, and Glenbrook's property in particular, for ad valorem taxation.

In February 2017, Julie P. Magee, who was then the commissioner of the Department, filed a motion in the trial court seeking to strike the naming of all other defendants but herself and either the dismissal of or the transfer of the declaratory-judgment action to the Montgomery Circuit Court; the Board, the Jefferson County Tax Assessor, and the Jefferson County Assistant Tax Assessor ("the Jefferson County defendants") separately filed a motion to dismiss or, in the alternative, to strike them as parties. The thrust of both motions was the contention that the Jefferson County defendants were mere instrumentalities of the Department. After the plaintiffs had filed a response in opposition to the defendants' motions, and Magee had filed a reply to that response, the trial court entered an order on April 6, 2017, denying the defendants' motions. Magee's successor as the Department's commissioner, Michael D. Gamble, and the Jefferson County defendants then timely petitioned for a writ of mandamus directing the trial court to dismiss the Jefferson County defendants and to transfer the case to the Montgomery Circuit Court. Pursuant to Rule 43(b), Ala. R. App. P., Gamble's successor as the Department's commissioner, Vernon Barnett, was substituted as a petitioner, and this court called for answers from the plaintiffs. The plaintiffs filed a joint answer with this court.

However, upon submission of the petition for a decision, we have reached the conclusion that, despite our decisions in Glenbrook I and Glenbrook II, this court is not the proper forum to decide the venue and real-party-in-interest issues raised by the petitioners. Pursuant to Ala. Code 1975, § 12-3-11, this court has jurisdiction over mandamus petitions only in relation to cases over which we have exclusive appellate jurisdiction. However, both Glenbrook I and Glenbrook II were appeals pursuant to the Act, as to which appellate jurisdiction is vested in our supreme court in the first instance, see Ala. Code 1975, § 45-37-241.20(n), and we obtained appellate jurisdiction in those cases only via our supreme court's election to transfer those appeals to this court pursuant to Ala. Code 1975, § 12-2-7(6). It appears to this court that, regardless of the form thereof, the plaintiffs' declaratory-judgment action against the defendants made the basis of the defendants' mandamus petition is, in substance, simply an alternative means of attacking the 2015 and 2016 ad valorem valuations of Glenbrook's real property and seeking to prevent future "incorrect" assessments of properties subject to the LIHTC. Our legislature has mandated under the Act that those issues lie within the exclusive appellate jurisdiction not of this court, but of our supreme court, and, in our view, it would be anomalous for our supreme court to have exclusive appellate jurisdiction over disputes as to past tax assessments and not over disputes as to the making of future ad valorem assessments. Accordingly, we transfer the defendants' mandamus petition to our supreme court. See Ala. Code 1975, § 12-1-4.

PETITION TRANSFERRED.

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

Thompson, P.J., concurs in the result, without writing.

      Although the Board initially raised an objection to the emphasized portion of that instruction, the objection was later withdrawn.

      The plaintiffs in the declaratory-judgment action also assert that Addendum P is not a "rule" under the Alabama Administrative Procedure Act, Ala. Code 1975, § 41-22-1 et seq., and is invalid.

      We note that Ala. Code 1975, § 12-2-7(6), provides for the transfer of certain "civil case[s] appealed to the Supreme Court," not petitions seeking extraordinary writs. Accord Texas Loss Control Sys., LLC, 164 So.3d 602, 606 (Ala. Civ. App. 2014).

      Note from the reporter of decisions: On January 10, 2018, the Alabama Supreme Court denied the petition, without opinion (No. 1161136).


text:
    In the MATTER OF ANONYMOUS, a Minor
    2160920
    Court of Civil Appeals of Alabama.
    September 7, 2017
   PER CURIAM.

Under Alabama's parental-consent statutes, § 26-21-1 et seq., Ala. Code 1975 ("the Act"), an unemancipated minor must have the permission of her parent or guardian to have an abortion. The Act sets forth the procedure pursuant to which a minor may petition the courts for a waiver of the requirement of parental consent. See § 26-21-4, Ala. Code 1975.

In this case, a minor ("the minor") petitioned a juvenile court ("the juvenile court") for a judgment waiving the requirement of parental consent to allow her to have an abortion. The juvenile court conducted a hearing at which it received ore tenus evidence. On August 16, 2017, the juvenile court entered a judgment denying the minor's petition. The minor timely appealed.

The Act requires the juvenile court to make certain findings, and if either of two specific findings are made, the juvenile court shall grant the minor's petition:

"(g) The required consent shall be waived if the court finds either:
"(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
"(2) That performance of the abortion would be in the best interest of the minor."

§ 26-21-4(g) (emphasis added).

In this case, the juvenile court made the following finding:

"That the petitioner/[minor] is mature and well informed as to the circumstances surrounding her present situation and the procedure and possible outcomes and/or consequences of allowing such a procedure to occur in the manner requested."

The juvenile court further found, however, that, although granting the petition would "be easier" for the minor, "the Court cannot find that granting this petition is in this petitioner's best interests."

Our supreme court has held that "the petition for waiver of parental consent may be denied only if the court specifically finds both that (1) the minor is immature and not well enough informed to make the abortion decision on her own, and (2) that performance of the abortion would not be in her best interests." Ex parte Anonymous, 595 So.2d 497, 498 (Ala. 1992). This court has recently explained:

"Pursuant to § 26-21-4(g), the legislature has provided that the juvenile court shall waive the parental-consent requirement if the court finds either: '(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or (2) That performance of the abortion would be in the best interest of the minor.' See also In re Anonymous, 771 So.2d 1043, 1044 (Ala. Civ. App. 2000) (quoting Ex parte Anonymous, 595 So.2d 497, 498 (Ala. 1992) ) (explaining that the ' "petition for waiver of parental consent may be denied only if the court specifically finds both that (1) the minor is immature and not well enough informed to make the abortion decision on her own, and (2) that performance of the abortion would not be in her best interest" '). We note that the legislature has provided that the juvenile court 'shall' waive parental consent if one of the requisite findings in § 26-21-4(g) is made. 'The word "shall" is clear and unambiguous and is imperative and mandatory.' Ex parte Prudential Ins. Co. of Am., 721 So.2d 1135, 1138 (Ala. 1998) (citing Tuscaloosa Cty. Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa Cty., 589 So.2d 687 (Ala. 1991) )."

In re Anonymous, [Ms. 2160759, July 12, 2017] 242 So.3d 1019, 1023 (Ala. Civ. App. 2017). See also In re Anonymous, 964 So.2d 1239, 1241 (Ala. Civ. App. 2007).

The juvenile court found that the minor in this case met one of the two circumstances necessary for a waiver of parental consent, i.e., that she was sufficiently mature and well informed to make the abortion decision. That finding alone was sufficient to require that the petition be granted. In re Anonymous, 242 So.3d at 1023 ; In re Anonymous, 964 So.2d at 1241. Accordingly, we must conclude that, in entering its August 16, 2017, judgment, the juvenile court misapplied the law. Ex parte Anonymous, 718 So.2d 64, 65 (Ala. Civ. App. 1998).

The juvenile court's judgment is reversed, and this court hereby renders a judgment granting a statutory waiver of parental consent.

We pretermit discussion of the remaining issues raised in the minor's appellate brief.

REVERSED AND JUDGMENT RENDERED.

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

Thomas, J., concurs specially.

THOMAS, Judge, concurring specially.

I concur in the majority opinion. As the opinion states, a minor is entitled to a waiver of parental consent for an abortion if she satisfies the juvenile court either (1) that she "is mature and well-informed enough to make the abortion decision on her own" or (2) that "performance of the abortion would be in [her] best interest." Ala. Code 1975, § 26-21-4(g). In this case, the juvenile court determined that the minor was sufficiently mature and well informed, and, thus, the minor met the prerequisite for a waiver.

The juvenile court appointed a guardian ad litem for the unborn child, as it was permitted to do pursuant to § 26-21-4(j). The guardian ad litem participated in the proceedings before the juvenile court and sought and received permission to file a brief before this court. In that brief, the guardian ad litem argued that the evidence before the juvenile court was not sufficient to support a conclusion that the minor was sufficiently mature and well informed to make the abortion decision on her own. Because the guardian ad litem did not file a conditional cross-appeal, however, we are precluded from considering that argument. Had we done so, I may have been convinced that the denial of the waiver in this case was appropriate. Because we cannot consider that argument, I concur.

      The juvenile court's judgment concludes that it is not in the minor's best interests for the court to grant the petition. The judgment does not explicitly state that the petition is denied or granted. However, in the interest of judicial economy, and because this case involves a time-sensitive issue, we interpret the judgment as denying the minor's petition.

      See Ross v. Marion, 196 So.3d 250, 257 (Ala. 2015) (quoting Huntsville City Bd. of Educ. v. Sharp, 137 So.3d 917, 923 (Ala. Civ. App. 2013) ) (explaining that " 'a conditional cross-appeal [is an appeal that] becomes ripe for review in the event that the judgment under review is reversed as a result of the appeal' "), and Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193, 202 n.17 (Ala. Civ. App. 2013) (explaining that, in the absence of a conditional cross-appeal, we cannot entertain an argument from the appellee attacking the judgment).


author: THOMAS, Judge.

text:
    EX PARTE B.J.C. and E.T.A.
    (In re: Blount County Department of Human Resources v. B.J.C. and E.T.A.)
    2160834
    Court of Civil Appeals of Alabama.
    September 8, 2017
    Jonathan E. Lyerly, Birmingham; and Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for petitioners.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for respondent
   THOMAS, Judge.

B.J.C., the mother, and E.T.A., the father, once lived in Alabama, where they claim to have entered into a common-law marriage relationship. They are the parents of A.S.A-C. ("the child"), who was born in Tennessee on June 27, 2015. The child first lived with the parents in Tennessee, in a residence provided by D.C. and B.C., the child's maternal grandparents (D.C. and B.C. are referred to collectively as "the maternal grandparents"), who reside in Tennessee. From January 25, 2016, through March 23, 2016, the family lived in Alabama in a residence provided in by A.A., the child's paternal grandmother ("the paternal grandmother"), who resides in Alabama. On March 23, 2016, the family returned to Tennessee after a Blount County Department of Human Resources ("DHR") employee contacted the parents regarding a report that DHR had received alleging that the parents were selling marijuana in Alabama. Thus, the child had lived in Tennessee for seven months following his birth and had lived in Alabama for two months before returning to Tennessee.

Although the child had returned to Tennessee, DHR filed a dependency petition in the Blount Juvenile Court on March 31, 2016, and, that same day, the juvenile court entered an order awarding DHR temporary custody of the child based on allegations of "immediate or threatened danger of physical and/or emotional harm." DHR transported the child to Alabama. The child is currently being cared for in Alabama by J.J., the child's paternal grandfather, and his wife, K.J. (J.J. and K.J. are referred to collectively as "the paternal grandparents").

The maternal grandparents, the paternal grandparents, and the paternal grandmother each filed motions to intervene in the dependency action. The materials submitted for our review demonstrate that the juvenile court held what it referred to as a permanency hearing on April 25, 2017 ("the April 25, 2017, hearing"), at which it received ore tenus testimony; however, it heard no testimony regarding the parents' sexual-abuse allegations against the paternal grandmother.

Approximately one month later, on May 31, 2017, the paternal grandmother, who was then exercising supervised visitation with the child, filed a motion in the juvenile court seeking an award of unsupervised visitation. According to her motion, in September 2016 she had been awarded unsupervised visitation; however, the award had been modified to an award of supervised visitation based upon the parents' allegations, among others, that the paternal grandmother had molested the father when he was a child and had spoken inappropriately about the child. The parents filed an objection to the paternal grandmother's May 31, 2017, motion.

Without conducting a hearing, the juvenile court entered an order on June 28, 2017 ("the June 28, 2017, order"), modifying the paternal grandmother's visitation award from supervised visitation for 1 hour per week to unsupervised visitation for a 24-hour period once per week. The June 28, 2017, order reads, in pertinent part: "At the ... April 25, 2017[, hearing], [DHR] confirmed that after investigation, the sexual abuse allegations against the paternal grandmother were not a concern."

The parents filed a motion and an amended motion, and DHR filed a motion, each requesting that the juvenile court set aside the June 28, 2017, order. DHR correctly pointed out that "[t]here was no specific statement by [DHR's witness] that the sexual abuse allegations made by the parents were not a concern" and that, therefore, the juvenile court had misremembered testimony from the April 25, 2017, hearing upon which it expressly relied. DHR's assertion is fully supported by the transcript of the April 25, 2017, hearing. The juvenile court set a hearing for September 27, 2017. The parents filed in this court a petition for the writ of mandamus and a motion seeking a stay of the September 27, 2017, hearing.

The Temporal Requirements of Rule 21(a)(3), Ala. R. App. P.

A generous reading of the parents' request warrants consideration of the merits, notwithstanding the parents' noncompliance with the temporal requirements of Rule 21(a)(3). The child's guardian ad litem filed a motion requesting that we dismiss the parents' petition, in which he correctly asserted that the parents had filed their mandamus petition in this court 29 days after the entry of the June 28, 2017, order and that they had not submitted a statement of good cause for this court's consideration of their mandamus petition, notwithstanding its having been filed after the expiration of the presumptively reasonable time. See Rule 21(a)(3).

However, in Ex parte M.F.B., 228 So.3d 460, 461 (Ala. Civ. App. 2017), we explained:

"The mother filed in each case a 'motion to set aside' the October 21 orders, asserting, among other things, that the juvenile court's orders had been entered in violation of her due-process rights to notice and a hearing. The juvenile court did not act on the two 'motion[s] to set aside,' and the mother filed her mandamus petition in this court on November 23, 2016, 33 days after the entry of the juvenile-court orders she challenges.
" 'Rule 21(a)(3), Ala. R. App. P., provides that a petition for an extraordinary writ directed to an appellate court, such as this court, "shall be filed within a reasonable time" and that the presumptively reasonable time for filing a petition seeking review of a trial court's order "shall be the same as the time for taking an appeal." In juvenile actions, an appeal must be taken within 14 days of the entry of the judgment or order appealed from. Rule 4(a)(1)(E), Ala. R. App. P.; Rule 28(C), Ala. R. Juv. P. [A party's] motion to set aside the juvenile court's order does not affect the timeliness analysis because, "unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus." Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala. Civ. App. 2007) (citing Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003) ).'
" Ex parte C.J.A., 12 So.3d 1214, 1215-16 (Ala. Civ. App. 2009). In this case, the mother has not submitted a statement of good cause for this court's consideration of her mandamus petition, notwithstanding its having been filed after the expiration of the presumptively reasonable time. See Rule 21(a)(3), Ala. R. App. P.
"That said, however, this court has interpreted a recent decision, Ex parte K.R., 210 So.3d 1106 (Ala. 2016), in which our supreme court addressed on mandamus review the merits of a challenge to the lawfulness of a particular probate-court judge's temporary appointment by a clerk of that court, as having held that 'in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of the appellate court.' Ex parte J.B., 223 So.3d 251, 254 (Ala. Civ. App. 2016). Application of Ex parte J.B. to the circumstances of this case, in which the mother's contentions regarding lack of notice and a hearing in connection with a court's ex parte limitation of her visitation rights implicate due-process guarantees, see Ex parte C.T., 154 So.3d 149, 152-53 (Ala. Civ. App. 2014), and do in fact go to the power of the juvenile court to enter the October 21, 2016, orders, warrants consideration of the merits, notwithstanding the mother's noncompliance with Rule 21(a)(3), Ala. R. App. P. See M.G.D. v. L.B., 164 So.3d 606, 608, 611-12 (Ala. Civ. App. 2014) (holding void, as violative of procedural due-process principles, juvenile court's order restricting removal of minor children from Alabama without permission because order was issued without notice and opportunity to be heard)."

(Footnote omitted.) Therefore, like we did in Ex parte M.F.B., we deny the motion to dismiss filed by the child's guardian ad litem based upon our conclusion that the parents' request went to the power of the juvenile court to enter the June 28, 2017, order. Similar to the child's guardian ad litem, the paternal grandmother filed a motion to dismiss "and for immediate stay" in this court. For the foregoing reasons, we also deny the paternal grandmother's motion.

The Merits

"The standard we apply when reviewing a petition for the writ of mandamus is well settled.
" ' " '[M]andamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Horton, 711 So.2d 979, 983 (Ala. 1998)." ' "
Ex parte Builders & Contractors Ass'n of Mississippi Self-Insurer's Fund, 980 So.2d 1003, 1006 (Ala. Civ. App. 2007) (quoting Ex parte Alloy Wheels Int'l, Ltd., 882 So.2d 819, 821 (Ala. 2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala. 2009) )."

Ex parte Hutson, 201 So.3d 570, 571-72 (Ala. Civ. App. 2016).

In their mandamus petition, the parents contend that the June 28, 2017, order "puts [the child] at severe risk." DHR, the parents' adversary in the dependency action and the only respondent to file an answer to the parents' petition, agrees. The materials presented for our review support the assertion that the juvenile court modified the paternal grandmother's visitation rights without a hearing regarding the parents' sexual-abuse allegations.

"The courts of Alabama have often held:

" 'In dealing with such a delicate and difficult question-the welfare of a minor child-due process of law in legal proceedings should be observed. These settled courses of procedure, as established by our law, include due notice, a hearing or opportunity to be heard before a court of competent jurisdiction. Tillman v. Walters, 214 Ala. 71, 108 So. 62 [1925].'
" Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961). Thorne v. Thorne, 344 So.2d 165 (Ala. Civ. App. 1977). The parental right to due process far outweighs any burden that would be placed on the proceeding to determine that right. Thorne v. Thorne, supra."

Lamoreaux v. Schadt, 442 So.2d 117, 118 (Ala. Civ. App. 1983) ; see also Winford v. Winford, 139 So.3d 179, 183 (Ala. Civ. App. 2013).

Therefore, the parents have demonstrated a clear, legal right to the relief they seek. We grant the petition for the writ of mandamus and order the juvenile court to immediately vacate its June 28, 2017, order and, if necessary, to conduct further proceedings consistent with this opinion.

PETITION GRANTED; WRIT ISSUED.

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

Pittman, J., concurs specially, with writing, which Donaldson, J., joins.

PITTMAN, Judge, concurring specially.

I concur in the main opinion. But see Ex parte M.F.B., 228 So.3d 460, 462 (Ala. Civ. App. 2017) (Pittman, J., concurring specially).

Donaldson, J., concurs.

      The facts are gleaned from both the materials provided in the parents' petition for the writ of mandamus and from the record in the parents' appeal in a case involving the same parties and in which we are also issuing an opinion today. See B.J.C. v. Blount Cty. Dep't of Human Res., [Ms. 2160489, Sept. 8, 2017] . (Note from the Reporter of decisions: On November 3, 2017; on application for rehearing, the Alabama Court of Civil Appeals withdrew its September 8, 2017, opinion and substituted another opinion. See --- So. 3d ---- (Ala. Civ. App. 2017).) "It is axiomatic that courts judicially know their own records."Lovejoy v. State, 32 Ala.App. 110, 112, 22 So.2d 532, 533 (1945).

      The parties to this petition have not raised any question regarding the jurisdiction of the juvenile court in the underlying action pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala. Code 1975; thus, they have presented no materials for our review regarding that issue. We express no opinion on the issue.

      The materials provided for our review do not demonstrate when (or whether) the juvenile court adjudicated the child dependent.

      Although it is not entirely clear, it appears that, before the April 25, 2017, hearing, the paternal grandmother had made an informal request to DHR that the "restrictions [on the paternal grandmother's visitation] be lifted."