author: STUART, Chief Justice. PARKER, Justice (dissenting).

text:
    EICKHOFF CORPORATION v. WARRIOR MET COAL, LLC
    1161099
    Supreme Court of Alabama.
    May 4, 2018
    Crawford S. McGivaren, Jr., and Diane B. Maughan of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP, Birmingham; and Kevin C. Harkins of Cohen & Grigsby, P.C., Pittsburgh, Pennsylvania, for appellant.
    Marc James Ayers, Philip J. Carroll III, John D. Watson III, and Sarah E. Merkle of Bradley Arant Boult Cummings LLP, Birmingham, for appellee.
   STUART, Chief Justice.

Warrior Met Coal, LLC ("Warrior Coal"), sued Eickhoff Corporation in the Tuscaloosa Circuit Court asserting that certain pieces of heavy mining equipment Eickhoff had manufactured and sold to Warrior Coal were defective. Eickhoff subsequently moved the trial court to compel Warrior Coal to arbitrate its claims pursuant to an arbitration provision in contracts executed after the sale of the equipment, not the original purchase-order contracts associated with the allegedly defective equipment. The trial court denied the motion to compel arbitration and Eickhoff appeals. We reverse and remand.

I.

In January 2014, Warrior Coal's predecessor in interest, Jim Walter Resources, Inc. ("JWR"), contracted to purchase two Eickhoff SL 750 longwall shearers-heavy equipment used in underground coal mining to separate slabs of coal from the coal seam or "longwall panel"-direct from Eickhoff at a price of $3.2 million each. The terms and conditions of the purchase-order contract provided JWR with certain warranty protection; the contract contained no arbitration provision, providing only that "venue for any legal proceeding will be in Birmingham, Alabama."

In November 2014, before either of the two ordered longwall shearers were delivered, JWR and Eickhoff executed another contract, referred to as "the SL750 shearer rebuild and life cycle service agreement," or, more simply, "the master service agreement," which provided that, after the mining of a longwall panel was finished, JWR would deliver the used longwall shearer back to Eickhoff, and Eickhoff would rebuild it at an approximate cost to JWR of $880,000. Pursuant to the master service agreement, Eickhoff also agreed to provide JWR with an Eickhoff employee who would serve as a "life cycle manager" and work on-site at the JWR mines at least 40 hours a week and assist with the longwall shearers and otherwise generally "support longwall operations" by providing training on maintenance and repairs and responding to all requests "for advice, instruction and troubleshooting." The master service agreement further provided that it constituted

"the entire agreement between the parties in respect of its subject matter and supersedes all prior agreements, quotation requests, understandings, representations, warranties, promises, statements, negotiations, letters and documents in respect of its subject matter (if any) made or given prior to the commencement of the term."

Finally, the master service agreement contained an arbitration provision requiring the parties to submit "any dispute, controversy or claim arising out of or in connection with the agreement" to the American Arbitration Association ("the AAA") for binding arbitration conducted in accordance with the AAA's commercial arbitration rules if the parties were not otherwise able to resolve the dispute using all reasonable efforts.

The first of the longwall shearers ordered by JWR was put into service in May 2015. At approximately the same time, JWR and Eickhoff executed yet another contract, the consignment-parts agreement, pursuant to which Eickhoff agreed to provide a supply of spare parts for the longwall shearers, which JWR would store on-site and then pay for on a weekly basis as the parts were needed. The consignment-parts agreement did not contain an arbitration provision; rather, like the purchase-order contract, it provided only that venue for any legal proceeding would be in Birmingham. It also provided that it "constitute[d] the entire agreement between the parties, supersedes any previous agreements and may be amended or modified only by a writing signed by each of the parties."

The second longwall shearer was put into service by JWR in October 2015. That same month, JWR agreed to purchase yet a third SL 750 longwall shearer from Eickhoff for $3,295,000. The purchase-order contract for this transaction explicitly incorporated the terms and conditions of the January 2014 purchase-order contract; accordingly, there was no arbitration provision, and Birmingham was designated as the appropriate venue for any legal proceedings. The October 2015 purchase-order contract also had the same integration provision as did the January 2014 purchase-order contract, providing that "the [purchase order] comprises the entire agreement between [Eickhoff] and [JWR] and supersedes all other previous statements, representations, or agreements, whether written or oral."

During this period, JWR's parent company, Walter Energy, Inc., was involved in bankruptcy proceedings, and, in November 2015, Warrior Coal agreed to acquire substantially all of Walter Energy's and JWR's Alabama assets. Warrior Coal also ultimately agreed to assume various JWR contracts, including the November 2014 master service agreement. As a result of market conditions and the bankruptcy proceedings, mine no. 4-the mine where the two longwall shearers ordered from Eickhoff in January 2014 had been put into operation-was shut down from approximately January 2016 to August 2016. During this shutdown, the longwall shearers were idle.

In March 2016, Warrior Coal completed its purchase of Walter Energy's and JWR's assets. In May 2016, Eickhoff delivered the third longwall shearer to Warrior Coal, and, in June 2016, Warrior Coal's subsidiary executed another master service agreement with Eickhoff for this piece of equipment. This master service agreement was substantially similar to the November 2014 master service agreement and contained an identical arbitration provision. This third longwall shearer was placed into operation in Warrior Coal's mine no. 7 in October 2016.

On February 17, 2017, Warrior Coal notified Eickhoff that it was revoking its acceptance of all three longwall shearers, asserting that it had experienced continual problems with the equipment and that Eickhoff had been unable to satisfactorily remedy those problems. On March 9, 2017, Eickhoff formally notified Warrior Coal that it disputed the claim that the three longwall shearers were defective, set forth the remaining sums owed by Warrior Coal in connection with the purchase of the longwall shearers, and requested a meeting with Warrior Coal's designated dispute representative so that they could attempt to resolve the dispute. This final request was presumably made in accordance with the arbitration provision in the master service agreements, which required that such a step be taken before arbitration could be initiated.

On March 24, 2017, Warrior Coal sued Eickhoff, asserting breach-of-warranty, breach-of-contract, and products-liability claims. Warrior Coal specifically alleged that both the first and third longwall shearers delivered by Eickhoff had failed multiple times, that Eickhoff had been unable to repair them, that the failure of the two longwall shearers had impaired Warrior Coal's ability to produce and sell coal, leaving Warrior Coal no option but to remove the Eickhoff longwall shearers from its mines and to purchase replacement equipment from other sources. In total, Warrior Coal claimed damages in excess of $10 million. On April 2, 2017, Eickhoff filed a demand for arbitration with the AAA pursuant to the arbitration provision in the master service agreements, arguing that the longwall shearers delivered to Warrior Coal had performed in an exemplary fashion and that any problems Warrior Coal now claimed to have experienced with them were the result of insufficient maintenance, exacerbated by the time the machines were idle, as well as unique geological conditions at the Warrior Coal mines. Eickhoff also claimed that its own damages were in excess of $1,032,328. On May 2, 2017, Eickhoff followed up its demand for arbitration by moving the trial court to stay all proceedings related to the lawsuit filed by Warrior Coal and to compel arbitration pursuant to the arbitration provision in the master service agreements.

Warrior Coal thereafter opposed Eickhoff's motion to compel arbitration, arguing that the claims it had asserted against Eickhoff were based on the purchase of the three longwall shearers and were subject to the terms and conditions of the purchase-order contracts, which did not contain an arbitration provision and, in fact, provided that venue for any "legal proceedings" should be in Birmingham. Both parties thereafter filed additional materials concerning the question of whether their dispute fell within the scope of the arbitration provision in the master service agreements, with Eickhoff additionally arguing that, regardless of the ultimate answer, that question should be decided by the arbitrator, inasmuch as the identified arbitration provision dictated that the AAA's commercial arbitration rules would govern arbitration proceedings and those rules provide that the arbitrator is empowered to decide the threshold issue of arbitrability. See Federal Ins. Co. v. Reedstrom, 197 So.3d 971, 976 (Ala. 2015) ("[T]he arbitration provision in this case provides that any arbitration proceedings will be conducted 'pursuant to the then-prevailing commercial arbitration rules of the [AAA].' The relevant commercial arbitration rule, Rule 7(a), expressly provides, in its current form, that '[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.' "). On September 1, 2007, the trial court denied Eickhoff's motion to compel arbitration without stating its rationale. Pursuant to Rule 4(d), Ala. R. App. P., Eickhoff appeals that order.

II.

Our standard of review of the denial of a motion to compel arbitration is well settled:

" 'This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala. 2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala. 1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id."[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question." Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala. 1995) (opinion on application for rehearing).' "

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala. 2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala. 2000) ).

III.

It is undisputed that in this case a contract calling for arbitration exists; both master service agreements contain an arbitration provision requiring the parties to arbitrate "any dispute, controversy, or claim arising out of or in connection with [those contracts]." Moreover, there is no dispute but that the master service agreements evidence transactions affecting interstate commerce inasmuch as they are between a Pennsylvania corporation and Alabama companies. Accordingly, the burden of proof is upon Warrior Coal to establish either that the arbitration provision in the master service agreements is invalid or that it does not apply to the instant dispute. On appeal, Warrior Coal pursues this second avenue, arguing that the master service agreements, and the arbitration provision therein, are irrelevant to its instant dispute with Eickhoff inasmuch as the gravamen of this dispute is whether Eickhoff actually delivered the ordered products-functional longwall shearers-and that issue, Warrior Coal argues, is governed by the purchase-order contracts, which contain no arbitration provision, not the master service agreements, which are primarily concerned with rebuilding the longwall shearers after the initial mining of a longwall panel is completed and which, by their own language, limit the operation of the arbitration provision to disputes "arising out of or in connection with [the master service agreements]."

Eickhoff disputes Warrior Coal's characterization of the master service agreements and argues that the instant dispute falls squarely within the reach of the arbitration provision in those contracts. Eickhoff also argues, however, that, to the extent the trial court even considered Warrior Coal's argument, it erred because the issue of arbitrability should have been decided by the arbitrator, not the trial court. We first address who is to decide the issue of arbitrability.

The arbitration provision in the master service agreements provides that "any dispute, controversy or claim arising out of or in connection with the [master service] agreement" that cannot otherwise be resolved by the parties must be submitted to the AAA for binding arbitration conducted in accordance with the AAA commercial arbitration rules. Those rules vest the arbitrator with the power " 'to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.' " Reedstrom, 197 So.3d at 976 (quoting AAA Commercial Arbitration Rule 7(a) ). In CitiFinancial Corp., L.L.C. v. Peoples, 973 So.2d 332 (Ala. 2007), this Court first considered the effect of an arbitration provision specifically incorporating the AAA commercial arbitration rules in a dispute regarding which party-a trial court or an arbitrator-should decide arbitrability issues:

"In Smith v. Mark Dodge, Inc., 934 So.2d 375, 379 (Ala. 2006), we stated:
" 'A threshold issue is which forum should decide the question of the scope of the arbitration agreement. In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), the United States Supreme Court stated:
" ' "Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., [514 U.S. 52, 57 (1995) ]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985), so the question 'who has the primary power to decide arbitrability' turns upon what the parties agreed about that matter."
" ' 514 U.S. at 943, 115 S.Ct. 1920. However, the Court warned, "[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so." 514 U.S. at 944, 115 S.Ct. 1920 (quoting AT & T Techs. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) ). This Court has similarly required that trial courts order arbitration of the issue of arbitrability when the plain language of the agreement unquestionably shows that the parties agreed to arbitrate the issue of arbitrability. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1133-34 (Ala. 2003) ; and Ex parte Perry, 744 So.2d 859, 866-67 (Ala.1999).'
"The question presented by this case is whether the arbitration provision clearly and unmistakably provides that the arbitrator shall decide arbitrability. The lenders argue that incorporation into the arbitration provision of the Commercial Rules of the American Arbitration Association, conferring authority to decide such issues on the arbitrator, evidences such an intent. This Court has not decided whether the incorporation of such rules is sufficient to show the parties' intent to delegate the issue of arbitrability to an arbitrator, but federal courts have so held. In Terminix International Co. v. Palmer Ranch Ltd. Partnership, 432 F.3d 1327, 1332 (11th Cir. 2005), the United States Court of Appeals for the Eleventh Circuit stated:
" '[T]he parties have agreed that the arbitrator will [decide the issue of arbitrability] by providing (in all three of the arbitration clauses at issue) that "arbitration shall be conducted in accordance with the Commercial Arbitration Rules then in force of the American Arbitration Association" (AAA). [The relevant AAA rule], in turn, provides that "[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement." ... By incorporating the AAA Rules ... into their agreement, the parties clearly and unmistakably agreed that the arbitrator should decide whether the arbitration clause is valid. See, e.g., Contec Corp. v. Remote Solution, Co., 398 F.3d 205, 208 (2d Cir. 2005) ("when ... parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator"); Apollo Computer, Inc. v. Berg, 886 F.2d 469, 473 (1st Cir. 1989) ("By contracting to have all disputes resolved according to the Rules of the ICC ..., Apollo agreed to be bound by Articles 8.3 and 8.4. These provisions clearly and unmistakably allow the arbitrator to determine her own jurisdiction when, as here, there exists a prima facie agreement to arbitrate whose continued existence and validity is being questioned.")....'
"We find the reasoning of the Eleventh Circuit and other Circuit Courts of Appeal that have addressed this issue persuasive and hold that an arbitration provision that incorporates rules that provide for the arbitrator to decide issues of arbitrability clearly and unmistakably evidences the parties' intent to arbitrate the scope of the arbitration provision."

973 So.2d at 339-40 (footnotes omitted). This Court has since consistently reiterated the holding that questions of arbitrability must be decided by an arbitrator when the parties have executed a contract containing an arbitration provision incorporating the AAA commercial arbitration rules. See, e.g., Slamen v. Slamen, 254 So. 3d 188 (Ala. 2017) ; Locklear Auto. Grp., Inc. v. Hubbard, 252 So. 3d 67 (Ala. 2017) ; Managed Health Care Admin., Inc. v. Blue Cross & Blue Shield of Alabama, 249 So. 3d 486 (Ala. 2017) ; Bugs "R" Us, LLC v. McCants, 223 So.3d 913 (Ala. 2016) ; Reedstrom; Anderton v. Practice-Monroeville, P.C., 164 So.3d 1094, 1102 (Ala. 2014) ; and Auto Owners Ins., Inc. v. Blackmon Ins. Agency, Inc., 99 So.3d 1193 (Ala. 2012). Warrior Coal states in its brief to this Court that it "does not in any way challenge that precedent," Warrior Coal's brief, p. 38, but instead argues that the instant case is distinguishable because of the multiple contracts defining the relationship of the parties and the specific language used in those contracts. We disagree.

Regardless of any facts that might be unique to this case, at its simplest, this appeal still essentially amounts to one party asking us to examine multiple contracts between it and another party to hold that certain claims asserted by one of the parties arise under one of those contracts that does not contain an arbitration provision, as opposed to another one of those contracts that does contain an arbitration provision. In Blackmon, it was an insurance agent asking this Court to hold that an insurance company's claims were premised upon a 2005 document that did not contain an arbitration provision as opposed to a 1995 agreement that contained an arbitration provision that, much like the provision in the instant case, was limited to disputes "arising out of" the contract containing it. 99 So.3d at 1194. This Court declined to reach that issue, however, explaining that it was for an arbitrator to decide:

"We do not decide whether the 2005 document is encompassed by the arbitration provision in the 1995 agreement, however, because the AAA Commercial Arbitration Rules, which the parties in the 1995 agreement agreed to be bound by, require the arbitrator to decide that question, and 'doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.' Moses H. Cone Mem'l Hosp. [v. Mercury Constr. Corp.], 460 U.S. [1,] 24-25 [ (1983) ]. We merely note that the various documents at issue in this case underscore that it cannot be said with 'positive assurance,' Ex parte Colquitt, 808 So.2d [1018,] 1024 [ (Ala. 2001) ], that the arbitration provision in the 1995 agreement is not susceptible of an interpretation that would include disputes arising from the 2005 document, nor can it be said at this juncture that the dispute does not arise from the relationship described in the arbitration provision of the 1995 agreement."

99 So.3d at 1198.

Similarly, in Bugs "R" Us, the plaintiff urged this Court to hold that her negligence claim against a pest-control company arose from an apparently erroneous inspection report upon which the plaintiff relied when deciding to purchase real property-which did not contain an arbitration provision-as opposed to a termite-service agreement entered into with the same pest-control company at the time she closed upon the property approximately seven weeks later. 223 So.3d at 914-15. We declined to address that issue, however, noting instead that "[w]hatever merits [the plaintiff's] arguments may or may not have, under the arbitration provision in the termite contract it is not this Court's responsibility to make determinations on those issues." 223 So.3d at 918. Rather, the Court held, it was the responsibility of the arbitrator to make that decision.

Finally, Managed Health Care"involve[d] several contracts between various parties." 249 So. 3d at 487. The plaintiffs, a parent company and its subsidiary, had a long contractual relationship with the defendant insurance company, as evidenced by contracts executed in 1986, 1991, 1995, and 2006; however, in 2015, the plaintiffs sued the defendant asserting multiple contract and fraud claims. However, notwithstanding the fact that they initiated the lawsuit, they eventually moved the trial court to compel the arbitration of their claims, as well as counterclaims filed by the defendant, based upon an arbitration provision in a 2006 contract one of the plaintiffs had executed with the defendant, as well as an arbitration provision in a 2013 contract that the same plaintiff had executed with a third-party contractor alleged to represent the defendant. 249 So. 3d at 489. The defendant opposed the motion to compel arbitration, arguing that the 2006 contract had been terminated and, to the extent the plaintiffs' claims were based upon the 2013 contract, it was not a party to that contract and was not bound by any arbitration provision contained in it. 249 So. 3d at 489. The trial court ultimately agreed with the defendant and denied the motion to compel arbitration, after which the plaintiffs appealed, arguing that the trial court had erred by holding both that the 2006 contract had been terminated and that the plaintiffs' claims did not arise out of or relate to the 2006 contract. 249 So. 3d at 491. This Court subsequently reversed the judgment of the trial court, holding that "whether the arbitration provision in the 2006 contract ha[d] been terminated ... [was an] issue[ ] for the arbitrator, not the circuit court," and that "it [was] for the arbitrator, not the courts, to determine whether the claims asserted by the parties [were] within the scope of the 2006 contract." 249 So. 3d at 493.

Thus, over the course of these cases, this Court has made it clear that, once it is established (1) that two parties to a dispute are bound by a valid contract containing an arbitration provision, (2) that that same contract contains a clear indication that the parties have agreed to arbitrate the issue of arbitrability, and (3) that the subject dispute is at least arguably within the scope of that contract, this Court will not entertain arguments that the dispute actually falls within the scope of some other contract binding the parties that does not contain an arbitration provision. Rather, those arguments should be directed to the arbitrator. See, e.g., Blackmon, 99 So.3d at 1198 ("Because that is an arguable question, it is the arbitrator's task to decide whether the dispute in this case is, or is not, subject to mandatory arbitration under the 1995 agreement."). Numerous parties on appeal-as well as even dissenting Justices on this Court-have urged this Court to abandon this standard and, instead, to make the arbitrability determination in such cases itself; however, we have continually declined to do so. See, e.g., Anderton, 164 So.3d at 1105 (Murdock, J., dissenting) ("It is the court that of necessity must answer the threshold question of whether the dispute falls within the universe of cases as to which the arbitrator is to decide the question of arbitrability because, until the court does so, and does so in the affirmative, it has no basis to send the case to the arbitrator for any purpose."). For this Court to change its analysis of these types of cases now would require us to overrule the line of authority discussed supra, and, as noted, not only has Warrior Coal not asked us to do so, but it has affirmatively stated that it does not in any way challenge that precedent. As we have previously explained, "[e]ven if we would be amenable to such a request [to overrule existing caselaw], we are not inclined to abandon precedent without a specific invitation to do so. 'Stare decisis commands, at a minimum, a degree of respect from this Court that makes it disinclined to overrule controlling precedent when it is not invited to do so.' Moore [v. Prudential Residential Servs. ], 849 So.2d [914,] 926 [ (Ala. 2002) ]." Clay Kilgore Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So.2d 893, 898 (Ala. 2006).

Warrior Coal has not distinguished its case from Managed Health Care, Blackmon, and the other cases cited herein, and the trial court accordingly erred by not granting Eickhoff's motion to compel arbitration.

IV.

Warrior Coal sued Eickhoff alleging that the longwall shearers Eickhoff manufactured and sold it were defective. Eickhoff thereafter moved the trial court to compel Warrior Coal to arbitrate its claims pursuant to an arbitration provision in the master service agreements-contracts between the parties outlining Eickhoff's obligation to rebuild the longwall shearers after their initial term of use and providing for an Eickhoff employee to be on-site with the longwall shearers to provide support for their operation. The breach-of-warranty, breach-of-contract, and products-liability claims asserted by Warrior Coal in its action against Eickhoff are at least arguably connected to the master service agreements inasmuch as those contracts addressed Eickhoff's obligation to provide an employee to assist with the maintenance and operation of the longwall shearers. Accordingly, because the parties also agreed in the master service agreements that the AAA commercial arbitration rules would govern any arbitration, and because those rules empower the arbitrator to decide questions of arbitrability, the trial court erred when it instead at least implicitly resolved the arbitrability issue in favor of Warrior Coal in its order denying Eickhoff's motion to compel. That order is accordingly reversed and the cause remanded for the trial court to enter an order granting Eickhoff's motion to compel arbitration and staying proceedings in the trial court during the pendency of the arbitration proceedings.

REVERSED AND REMANDED.

Bolin, Shaw, Main, Wise, and Sellers, JJ., concur.

Bryan and Mendheim, JJ., concur in the result.

Parker, J., dissents.

PARKER, Justice (dissenting).

I dissent for the reasons set forth in Justice Murdock's dissent in Federal Insurance Co. v. Reedstrom, 197 So.3d 971, 979-81 (Ala. 2015) (Murdock, J., dissenting), which I joined. The main opinion concludes that the arbitration provision dictates that the question of arbitrability is to be decided by the arbitrator because the arbitration provision generally states that the Commercial Rules of the American Arbitration Association ("the AAA") would govern any arbitration proceedings in this case. However, such a general reference to the AAA's rules is not an indication that the parties have "clearly and unmistakably" agreed to deviate from the general rule-that questions of arbitrability be decided by the court-and instead to have the arbitrator decide issues of arbitrability. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 945, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995) (reiterating that "[t]his Court ... has ... added an important qualification, applicable when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so"; and recognizing "the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration").

      Throughout this litigation, Warrior Coal has objected to calling this contract "the master service agreement," instead referring to it by its full title, "the SL750 shearer rebuild and life cycle service agreement," or as simply the "rebuild agreement." However, we note that the contract by its own terms refers to itself as the "master service agreement" or, more simply, as "the agreement." For convenience and to differentiate it from the various other contracts and agreements executed by the parties in this case, we likewise refer to it as "the master service agreement."

      Eickhoff notes for this Court that Warrior Coal's action was filed in the Tuscaloosa Circuit Court as opposed to the Jefferson Circuit Court, which operates in Birmingham. We further note that Eickhoff, although arguing that the term "legal proceeding" includes arbitration proceedings, requested in its demand for arbitration that the arbitration hearing be held in Atlanta.

      Warrior Coal argues to this Court that Eickhoff waived its argument that the arbitrator must decide the arbitrability issue in this case because Eickhoff did not make that argument in its initial motion to compel arbitration. Eickhoff argues, however, that a party moving to compel arbitration cannot anticipate that the opposing party will seek to avoid an arbitration agreement, much less respond to every potential argument the party might make in that regard. We agree; Eickhoff promptly responded to Warrior Coal's objection, and the arbitrability issue was thoroughly briefed and argued by both sides before the trial court entered its ruling. See Locklear Auto. Grp., Inc. v. Hubbard, 252 So. 3d 67, 96 (Ala. 2017) (holding that the appellants "clearly and explicitly argued to the trial court [at the hearing on the motion to compel arbitration] that there was an arbitrability clause in the arbitration agreement and that the import of the clause was that the issue whether [the appellee's] claims were covered by the arbitration agreement was for the arbitrator to decide, not the trial court. Therefore, the effect of the arbitrability clause is properly before us in this appeal.").

      Much like the arbitration provision in the instant case limited itself to any dispute "arising out of or in connection with the [master service] agreement[s]," both of the arbitration provisions identified in Managed Health Care were limited to disputes arising out of or relating to the contracts in which the arbitration provisions were found. 249 So. 3d at 487-88.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Fred W. SUGGS, Jr., as personal representative of the Estate of Frances W. Gray, deceased v. Elizabeth R. GRAY, as personal representative of the Estate of Floyd H. Gray, deceased
    1161118
    Supreme Court of Alabama.
    May 4, 2018
    J. Doyle Fuller and Susan G. Copeland of Fuller & Copeland, Montgomery, for appellant.
    Matthew T. Elis of Crum, Ellis & Associates, P.C., Montgomery, for appellee.
   SELLERS, Justice.

Fred W. Suggs, Jr., as personal representative of the Estate of Frances W. Gray, deceased, appeals from an order of the Montgomery Circuit Court denying his Rule 60(b), Ala. R. Civ. P., motion for relief from judgments entered by the circuit court on the basis that the court lacked subject-matter jurisdiction to enter those judgments. We affirm in part and vacate the judgments in part.

I. Facts and Procedural History

Frances W. Gray ("the wife") died testate in September 2011, and the Montgomery County Probate Court issued letters testamentary to her husband, Floyd H. Gray ("the husband"), establishing him as the personal representative of the wife's estate. The husband died testate in January 2012, and the probate court issued letters testamentary to Elizabeth R. Gray ("Gray"), establishing her as the personal representative of the husband's estate. The probate court then appointed Suggs as the successor personal representative of the wife's estate. Gray and Suggs thereafter sold the house in which the husband and the wife had lived. They had owned the house as tenants in common; there was no survivorship provision. Before the sale of the house, both Gray and Suggs agreed that the net proceeds from the sale would be held in a trust account at Capell & Howard, P.C., the law firm representing both estates (hereinafter "the law firm"). At some point thereafter, Suggs delivered a letter to the law firm stating that the wife's estate had a "claim" against the husband's estate and instructing the law firm not to disburse any proceeds to the husband's estate until the "matter" was resolved.

On October 5, 2012, while the administration of both estates was pending in the probate court, Gray filed a declaratory-judgment action in the circuit court, asserting that a controversy existed between her and Suggs concerning the disbursement of the proceeds held in the law firm's trust account and, more specifically, asserting that Suggs was withholding consent to disburse that portion of the proceeds belonging to the husband's estate.

On October 16, 2012, Suggs filed a motion to dismiss the declaratory-judgment action, asserting that the circuit court lacked subject-matter jurisdiction over the controversy stated in the action; the circuit court denied the motion. Suggs then filed an answer and a counterclaim, alleging fraud, conversion, embezzlement, breach of the duty of loyalty, and breach of fiduciary duty. The allegations asserted in the counterclaim were not related to the controversy concerning the proceeds being held in the law firm's trust account. Rather, the counterclaim was based on allegations (1) that the wife's estate was entitled to a portion of the proceeds from two certificates of deposit that Suggs alleged had been improperly transferred into the husband's bank account and (2) that the husband's estate was in possession of a diamond necklace that Suggs alleged belonged to the wife's estate.

On August 5, 2013, Gray filed a motion for a summary judgment in the declaratory-judgment action asserting, among other things, that a specific amount of money was being held by the law firm in its trust account; that Gray had authorized the law firm to release from the trust account that portion of the proceeds belonging to the husband's estate; that Suggs had instructed the law firm not to disburse any proceeds to the husband's estate because, according to Suggs, the wife's estate had a "claim" against the husband's estate; that the wife's estate had not filed a claim against the husband's estate in accordance with § 43-2-350, Ala. Code 1975, and any alleged "claim" against the husband's estate would be barred as untimely; and that the husband's estate was due to be paid its portion of the proceeds being held in the trust account.

On December 5, 2013, following a hearing, the circuit court entered a summary judgment in favor of the husband's estate, ordering the law firm to disburse to the husband's estate one-half of the proceeds being held in trust. The court further concluded that, upon the death of the wife, the husband had acquired ownership of the certificates of deposit at issue. Gray thereafter filed a "second motion for summary judgment," asserting that the December 5, 2013, summary judgment in favor of the husband's estate disposed of all issues in the action except the issue concerning ownership of the diamond necklace Suggs alleged belonged to the wife's estate; Gray asserted in the motion that the necklace had been delivered to the wife's estate.

On April 18, 2014, the circuit court granted Gray's summary-judgment motion concerning ownership of the diamond necklace; the court certified its judgment as final as to all issues in the action. See Rule 54(b), Ala. R. Civ. P. Suggs did not file a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., nor did he file an appeal challenging the merits of the final judgment. Rather, on June 19, 2014, Suggs filed, pursuant to Rule 60(b)(4), Ala. R. Civ. P., a motion seeking relief from both the circuit court's judgments on the basis that those judgments were void. Suggs claimed that the judgments were void because the probate court, and not the circuit court, had jurisdiction over the administration of the estates and, specifically, the allocation and distribution of assets of each estate.

On August 2, 2017, the circuit court, after conducting a hearing, entered an order concluding that Suggs's Rule 60(b) motion was in actuality a Rule 59.1 motion for postjudgment relief that had been denied by operation of law. This appeal followed.

II. Standard of Review

"The standard of review on appeal from the denial of relief under Rule 60(b)(4) [, Ala. R. Civ.P.,] is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process."

Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991).

III. Discussion

A. Timely Filing

As a preliminary matter, Gray asserts that this Court lacks jurisdiction to hear the appeal because, she says, it was untimely filed; she says that the Rule 60(b)(4) motion was filed 62 days after the circuit court entered a final judgment in the action disposing of all issues. We disagree. On December 5, 2013, the circuit court entered a summary judgment in the declaratory-judgment action concluding that the husband's estate was entitled to one-half of the proceeds being held in the law firm's trust account and further concluding that, upon the wife's death, the husband had acquired ownership of the certificates of deposit. On April 18, 2014, the circuit court entered a second summary judgment concerning ownership of the diamond necklace; the court made that judgment final as to all issues in the action. Suggs did not move the circuit court to vacate the judgment pursuant to Rule 59, nor did he file an appeal challenging the merits of the final judgment. Rather, on June 19, 2014, Suggs filed a Rule 60(b)(4) motion seeking relief from both the circuit court's judgments on the basis that those judgments were void. According to Suggs, because the administration of both estates had not been removed to the circuit court, the probate court retained jurisdiction over all controversies concerning the administration of the estates and, specifically, which assets belonged to which estate. The circuit court treated the Rule 60(b)(4) motion as a Rule 59.1 motion that had been denied by operation of law because, it reasoned, Suggs had already raised the issue of jurisdiction in a motion to dismiss filed on October 16, 2012, which was denied. Rule 60(b), however, specifically states that, "[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding." Rule 60(b) therefore contemplates relief from a final judgment. The fact that Suggs challenged the circuit court's jurisdiction to hear the declaratory-judgment action in a motion to dismiss is irrelevant insofar as Suggs filed a Rule 60(b) motion after the final judgment had been entered in the action. See Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala. 1989) (noting that, although the Alabama Rules of Civil Procedure do not preclude the filing of alternative motions for relief from judgment, "the better practice is to file a Rule 60(b) motion only when there is a final judgment in the case"). Accordingly, Suggs's Rule 60(b) motion, filed 62 days after the entry of a final judgment, was timely. See Ex parte Full Circle Distribution L.L.C., 883 So.2d 638, 643 (Ala. 2003) (holding that "a motion for relief from a void judgment [filed pursuant to Rule 60(b)(4) ] is not governed by the reasonable-time requirement of Rule 60(b)").

B. Subject-Matter Jurisdiction

Suggs contends that the circuit court lacked subject-matter jurisdiction over Gray's declaratory-judgment action because, he says, the administration of both estates remained pending in the probate court when that action was filed in the circuit court and the probate court retained jurisdiction over all controversies concerning the administration of the husband's and the wife's estates and, specifically, which assets belonged to which estate. Gray, on the other hand, contends that the there is no statutory authority granting the probate court jurisdiction to decide a dispute between two separate estates relating to the disbursement of assets outside the control of either estate, here, proceeds from the sale of the house being held by the law firm in its trust account.

The "jurisdiction of the probate court is limited to the matters submitted to it by statute." Wallace v. State, 507 So.2d 466, 468 (Ala. 1987). Section 12-13-1(b)(3), Ala. Code 1975, gives the probate court original and general jurisdiction over controversies relating to the administration of a decedent's estate. However, "[t]he probate court is a court of law and, therefore, generally does not possess jurisdiction to determine equitable issues." Lappan v. Lovette, 577 So.2d 893, 896 (Ala. 1991). The circuit court, on the other hand, is clothed with jurisdiction over equitable matters. Section 12-11-31(1), Ala. Code 1975, provides that the jurisdiction of the circuit court as to equitable matters extends "[t]o all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals." Accordingly, in this case, although the probate court had original and general jurisdiction over the administration of the husband's and the wife's separate estates and, specifically, the assets of each estate, the probate court did not have jurisdiction to fashion an equitable remedy concerning the assets being held in the law firm's trust account. For this reason, Gray filed in the circuit court a declaratory-judgment action in accordance with Rule 57, Ala. R. Civ. P., and §§ 6-6-220 through 6-6-232, Ala. Code 1975, alleging a controversy between Gray and Suggs-whose legal interests were adverse. Section 6-6-221, Ala. Code 1975, states that the purpose of a declaratory-judgment action "is to settle and to afford relief from uncertainty and insecurity with respects to rights, status, and other legal relations and [the declaratory-judgment act] is to be liberally construed and administered." See also Harper v. Brown, Stagner, Richardson, Inc., 873 So.2d 220, 224 (Ala. 2003) (noting that this Court has recognized "that a justiciable controversy is one that is ' "definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment]." ' MacKenzie v. First Alabama Bank, 598 So.2d 1367, 1370 (Ala. 1992) (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) )."). Section 6-6-225, Ala. Code 1975, provides:

"Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, infant, incompetent, or insolvent may have a declaration of rights or legal relations in respect thereto:
"(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or other;
"(2) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
"(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings."

Moreover, Rule 57, Ala. R. Civ. P., specifically provides that "[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Accordingly, although Gray could have removed the administration of the husband's estate to the circuit court pursuant to § 12-11-41, Ala. Code 1975, she was not required to do so. See In re Dawson's Estate, 346 So.2d 386, 390 (Ala. 1977) (stating that "[w]e see no problem with the jurisdiction of the [circuit] court. The probate court appointed [the] administratrix ad colligendum pending proof of death. While the probate court could have made that decision, or alternatively, the [administration of the] estate could have been [removed to the circuit court pursuant to § 12-11-41, Ala. Code 1975 ], Rule 57 clearly provides that the existence of another remedy does not make a declaratory judgment inappropriate."). Under the facts of this case, the circuit court had subject-matter jurisdiction over the declaratory-judgment action concerning disbursement of the proceeds held in the law firm's trust account. Accordingly, that portion of the summary judgment entered in the declaratory-judgment action, ordering that one-half of the proceeds be disbursed to the husband's estate, is affirmed.

Our discussion concerning the circuit court's jurisdiction, however, does not end here. As indicated, after Gray filed the declaratory-judgment action concerning the disbursement of proceeds being held in the law firm's trust account, Suggs filed a counterclaim concerning ownership of certain assets that were clearly within the probate court's jurisdiction, i.e., the proceeds from the certificates of deposit Suggs alleged had been improperly transferred to the husband's estate and a diamond necklace Suggs alleged belonged to the wife's estate. Because the probate court retained jurisdiction over those estate assets and because the administration of neither estate was removed to the circuit court pursuant to statute, the circuit court's judgments purporting to exercise jurisdiction over those assets are a nullity. In other words, the declaratory-judgment action was limited to a single issue: the distribution of the net proceeds from the sale of the marital residence. Using the declaratory-judgment action to expand the jurisdiction of the circuit court to encompass all the assets of the estates was improper. And, any attempt to have the circuit court consider other issues related to the administration of the estates, absent following the statutory provisions for removal, does not confer jurisdiction on the circuit court, and actions such as those taken in the case are, thus, void.

IV. Conclusion

That portion of the December 5, 2013, summary judgment entered in the declaratory-judgment action concerning the disbursement of proceeds being held in the law firm's trust account is affirmed; that portion of the December 5, 2013, summary judgment concerning the proceeds from the certificates of deposit is vacated; and that portion of the April 18, 2014, summary judgment concerning ownership of the diamond necklace is vacated.

AFFIRMED IN PART; VACATED IN PART.

Stuart, C.J., and Bolin, Parker, Main, and Wise, JJ., concur.

Shaw, Bryan, and Mendheim, JJ., concur in the result in part and dissent in part.

SHAW, Justice (concurring in the result in part and dissenting in part).

An action that is properly under the jurisdiction of a probate court cannot simply be reframed as an action under the Declaratory Judgment Act seeking equitable relief that would be outside that court's jurisdiction. See Bluemly v. Little, 632 So.2d 1334, 1336 (Ala. 1994) (holding that an action seeking to set aside an adoption, over which the probate court would have "primary jurisdiction," could not be brought in the circuit court pursuant to the Declaratory Judgment Act), and Love v. Rennie, 254 Ala. 382, 48 So.2d 458 (1950) (holding that because the probate court had jurisdiction over the probate of a will, an equity court lacked jurisdiction to enter a declaratory judgment construing the will). I am not convinced that the declaratory-judgment action at issue in this appeal presents issues that can be brought only in an action outside the administration of an estate pending in the probate court or that it seeks an equitable remedy the probate court cannot provide. Therefore, as to the portion of the main opinion affirming in part the December 5, 2013, judgment of the trial court, I respectfully dissent.

The will of Frances W. Gray ("the wife") provided that, upon her death, her husband Floyd H. Gray ("the husband") would receive a life estate in her one-half interest in the marital residence. At the husband's death, the will directed, the wife's successor personal representative was to sell the property and the proceeds were to be distributed to her children as part of her residual estate.

In the instant case, the wife and then the husband died, and, for all that appears, both estates are being probated in the Montgomery County Probate Court. The marital residence was sold, and, for whatever reason, the two estates' separate funds from the sale were mingled in a trust account held by a law firm. Apparently, the consent of both personal representatives was required before any of the funds of the separate estates in that account could be released.

Subsequently, the personal representative of the husband's estate, Elizabeth R. Gray ("Gray"), sought to have a portion of the funds, i.e., those owned by the husband's estate, released from the account. However, the personal representative of the wife's estate, Fred W. Suggs, Jr. ("Suggs"), sent a letter to the law firm indicating that a dispute existed as to whether the husband's estate owed the wife's estate money taken from certain certificates of deposit ("CDs") and whether Gray or the husband's estate had possession of a "two-diamond necklace" the wife's will directed to be distributed to her daughter-in-law. Suggs thus directed the law firm that the funds it was holding in its trust account should not be disbursed until those separate disputes had been resolved.

Gray later filed in the Montgomery Circuit Court a declaratory-judgment action against Suggs. In it, Gray alleged that, of the funds in the trust account, the husband's estate owned $54,072.18 and the wife's estate owned $50,072.18. It does not appear from the complaint or the record that there was any dispute that those amounts properly reflected the portions of the funds in the trust account each estate owned from the sale of the marital residence. In her later filed motion for a summary judgment, Gray contended that Suggs recognized that one-half of the proceeds from the sale of the residence was due to be paid to the husband's estate but that he had refused to permit the disbursement of the proceeds "as leverage" in the separate dispute over the CDs and the necklace.

If the complaint is taken at face value as an equitable action seeking declaratory relief, I would tend to agree that the probate court would have no jurisdiction. However, " '[t]he substance of the allegation, and not its form, determines the character of a complaint.' " Bailey v. Faulkner, 940 So.2d 247, 253 (Ala. 2006) (quoting Holland v. Fidelity & Deposit Co. of Maryland, 225 Ala. 669, 670, 145 So. 131, 132 (1932) ). It appears to me that the substance of the action actually challenges Suggs's attempt to control an account containing commingled, but separately owned, funds. Suggs's actions in doing so are clearly an exercise of his powers as the personal representative of the wife's estate. Suggs's purported exercise of authority over the funds held by the law firm is, for all that appears, granted to him by virtue of his being the personal representative of the wife's estate as provided by her will.

The probate court has, and is currently exercising, jurisdiction over the probate of the wife's will-under which Suggs is exercising his purported power regarding the release of the funds. See Ala. Code 1975, § 12-13-1(b)(1) ("The probate court shall have original and general jurisdiction over ... [t]he probate of wills...."). Further, the probate court has jurisdiction over the settlement of accounts of executors. Ala. Code 1975, § 12-13-1(b)(4). Finally, this Court has stated that "the probate court has 'original and general jurisdiction in practically all matters having to do with probate and administration of decedents' estates.' " Ex parte Creel, 719 So.2d 783, 785 (Ala. 1998) (quoting Opinion of the Justices No. 187, 280 Ala. 653, 657, 197 So.2d 456, 460 (1967) ).

Gray's lawsuit, in substance, is seeking to require Suggs, as a personal representative, to properly exercise his powers. The probate court has jurisdiction to supervise Suggs's actions. Although, in form, the lawsuit purports to seek relief by a declaratory judgment, in substance, it asserts that Suggs is simply withholding consent to the release of funds based on the claim that the husband's estate owes the wife's estate some money. Nothing in the substance of that claim appears outside the probate court's jurisdiction, which extends to "practically all matters having to do with probate and administration of decedents' estates." That jurisdiction cannot be transferred to the circuit court by the filing of an action purporting to seek equitable relief, even under the Declaratory Judgment Act. Bluemly, supra, and Love, supra. Specifically, the administration of an estate cannot be split between the probate court and the circuit court. See Ex parte Clayton, 514 So.2d 1013, 1017 (Ala. 1987) ("It would be improper to allow the probate court to have jurisdiction over petitioners' claim and the circuit court to retain jurisdiction over all other aspects of administration."). Further, "[t]he circuit court can obtain jurisdiction over a pending administration of an estate only by removing the administration from the probate court to the circuit court." DuBose v. Weaver, 68 So.3d 814, 821 (Ala. 2011). If a case is not properly removed from the probate court to the circuit court, then the circuit court does not obtain jurisdiction. See McElroy v. McElroy, 254 So. 3d 872, 877 (Ala. 2017) ("[B]ecause the administration of the estate was not properly removed to the circuit court, the circuit court never acquired subject-matter jurisdiction over the administration of the estate or the pending will contest.").

I am not convinced that this case presents issues that can be brought only in a declaratory-judgment action outside the jurisdiction of the probate court, or that it requires an equitable remedy the probate court cannot grant. Therefore, I respectfully dissent from the portion of the main opinion holding otherwise. As to the portion of the main opinion vacating other parts of the circuit court's judgment, I concur in the result.

Bryan, J., concurs.

MENDHEIM, Justice (concurring in the result in part and dissenting in part).

I agree with the main opinion that the circuit court's judgment denying the Rule 60(b), Ala. R. Civ. P., motion filed by Fred W. Suggs, Jr., as personal representative of the estate of Frances W. Gray, deceased, is due to be affirmed, but I would not address the merits of the circuit court's determination as to subject-matter jurisdiction. I disagree with the main opinion that the circuit court's judgment as to Suggs's counterclaims is due to be vacated.

As noted in the main opinion, Suggs filed a motion to dismiss the underlying declaratory-judgment action on the ground of lack of subject-matter jurisdiction. The circuit court denied that motion. Thereafter, the circuit court entered a summary judgment in favor of Elizabeth R. Gray, as personal representative of the estate of Floyd H. Gray, deceased, and against Suggs as to Gray's claims and a summary judgment in favor of Gray and against Suggs as to Suggs's counterclaims for damages. Suggs did not file a timely appeal, but instead filed a motion pursuant to Rule 60(b) on the ground that the trial court lacked subject-matter jurisdiction. The trial court denied Suggs's Rule 60(b) motion, correctly noting that Suggs's challenge to subject-matter jurisdiction had already been addressed on the merits in the underlying litigation and that he had failed to file a timely postjudgment motion as to that issue.

It is well settled that a Rule 60(b) motion to vacate a judgment cannot be used in lieu of filing a timely appeal. See, e.g., MBNA America Bank, N.A. v. Bodalia, 949 So.2d 935, 939 (Ala. Civ. App. 2006) ; Personnel Bd. for Mobile Cty. v. Bronstein, 354 So.2d 8, 11-12 (Ala. Civ. App. 1977). In the present case, the issue of subject-matter jurisdiction was raised in the underlying litigation and was adjudicated on the merits adversely to Suggs. That adjudication, whether correct or erroneous, was within the trial court's jurisdiction because "[a] court has jurisdiction to determine its own jurisdiction." Jefferson Cty. Comm'n v. Edwards, 32 So.3d 572, 583 (Ala. 2009). Suggs could have filed a petition for a writ of mandamus after the denial of his motion to dismiss, but he did not. See Ex parte U.S. Bank Nat'l Ass'n, 148 So.3d 1060, 1064 (Ala. 2014) ("[A] writ of mandamus is an appropriate means by which to review [a nonfinal judgment as to] subject-matter jurisdiction."). Likewise, after the trial court entered its final judgment, Suggs could have filed an appeal within 42 days of that judgment and raised the previous denial of his motion to dismiss as a ground for vacating that judgment and dismissing the underlying case, but he did not. See, e.g., Riley v. Hughes, 17 So.3d 643, 649 (Ala. 2009) (recognizing that the issue of subject-matter jurisdiction may be raised on appeal, even ex mero motu, and that, where it is determined on appeal that a trial court lacked subject-matter jurisdiction, the trial court's judgment must be vacated and the appeal and underlying action dismissed).

Our law is clear that a judgment or order entered by a court lacking subject-matter jurisdiction is void. See, e.g., Ex parte C.E., 91 So.3d 687, 690 (Ala. 2011). But that principle should not be used to set aside a judgment where the trial court-which has jurisdiction to determine the issue of its own jurisdiction-has made an express determination that it has subject-matter jurisdiction and where the dissatisfied party has failed to avail himself of his right to appeal. In such a case, the principles of res judicata apply, as discussed by the United States Supreme Court: "One trial of an issue is enough. The principles of res judicata apply to questions of jurisdiction as well as to other issues, as well as to jurisdiction of the subject matter as of the parties." Treinies v. Sunshine Mining Co., 308 U.S. 66, 78, 60 S.Ct. 44, 84 L.Ed. 85 (1939) (footnotes omitted). See also Restatement (Second) of Judgments § 12 cmt. C (1982) ("When the question of a tribunal's judgment is raised in the original action, in a modern procedural regime there is no reason why the determination of the issue should not thereafter be conclusive under the usual rules of preclusion.").

Accordingly, I would address only the circuit court's ruling on Suggs's Rule 60(b) motion, which, in my opinion, was correctly denied, and pretermit ruling on the underlying merits of the litigation.

      The husband and the wife each had children from different marriages. They held some assets jointly and some severally.

      See Blackwell v. Williams, 594 So.2d 56, 58 (Ala. 1992) (explaining that § 43-2-350(b), Ala. Code 1975, "requires that all claims against a decedent's estate be presented 'within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed by § 43-2-61[, Ala. Code 1975,] must be allowed 30 days after notice within which to present the claim.' Any claims not presented within these time limits are 'forever barred and the payment or allowance thereof is prohibited.' § 43-2-350(b). That section also requires that presentation of all claims must be made by filing a verified claim or statement in the office of the judge of probate of the county where the letters are granted. Id.").

      The delay in the ruling on the Rule 60(b) motion was apparently due in part to the retirement of Judge William A. Shashy, who had initially presided over the action.

      See Sears v. Hampton, 143 So.3d 151, 159 n. 3 (Ala. 2013) (noting that, by local acts, the probate courts in Jefferson and Mobile Counties share equity jurisdiction with the circuit courts in those counties and that, by constitutional amendments, the probate courts of Shelby and Pickens Counties share equity jurisdiction with the circuit courts in those counties).

      Section 12-11-41 provides that "[t]he administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof."

      Ala. Code 1975, § 6-6-220 et seq.

      Certain other funds were deposited into the account and disbursed, and the parties agreed that the husband's estate would receive a small reimbursement for repairs to the marital residence, thus explaining the different amounts owned by the respective estates.

      Although the complaint is critical of the separate claim by Suggs that the husband's estate owed the wife's estate money based on the disputes regarding the CDs and the necklace, there is no request in the complaint that those separate disputes be resolved or that an award from such resolution be set off from the withheld funds. In fact, the circuit court's December 5, 2013, summary judgment appears to award the exact relief requested in Gray's complaint. Nevertheless, if the complaint can be read as alleging such disputes, then, under the holding of the main opinion, the circuit court did not have jurisdiction over them.

      I disagree with the statement in the main opinion that Ala. Code 1975, § 12-13-1(b)(3), which provides the probate court with original and general jurisdiction over "[a]ll controversies in relation to the right of executorship or of administration" can be read as giving the probate court jurisdiction "over controversies relating to the administration of a decedent's estate" generally. 719 So.3d at 785-86. Instead, the jurisdiction the subsection provides appears to me to deal with issues relating to the "right of" a person to be an executor or administrator. See Ex parte Creel, 719 So.2d at 785 (holding that § 12-13-1(b)(3) gave the probate court the power to determine whether one was a common-law spouse as an antecedent to deciding whether a party could be named as an administrator of the estate of the alleged common-law spouse).

      If Suggs believes that the husband's estate owes the wife's estate some money, then such claim should be pursued in the probate court, and not by an attempt to retain a portion of commingled-but separately owned-funds.

      These precise jurisdictional arguments are not raised by the parties on appeal. Even so, the lack of subject-matter jurisdiction is of such magnitude that it cannot be waived, and this Court may take notice of it despite the absence of a specific argument by the parties. McElroy, 254 So. 3d at 875, and Thomas v. Merritt, 167 So.3d 283, 289 (Ala. 2013).


author: MAIN, Justice.

text:
    Ed RICHARDSON and Reginald Eggleston, individually and in their official capacities as Interim Superintendent of the Alabama Department of Education and Chief Administrative Officer of the Alabama State Board of Education, respectively, and Gordon Stone, individually and in his official capacity as Mayor of the Town of Pike Road v. Edwina A. RELF and Tislam D. Ellis
    1170559
    Supreme Court of Alabama.
    May 4, 2018 Rehearing Denied May 25, 2018
    Juliana T. Dean, gen. counsel, Alabama State Department of Education, Montgomery; Carl Johnson and Whit Colvin of Bishop, Colvin, Johnson & Kent, LLC, Birmingham; and James R. Seale of Hill, Hill, Carter, Franco & Black, P.C., Montgomery, for appellants Ed Richardson and Reginald Eggleston, individually and in their official capacities as Interim Superintendent of the Alabama Department of Education and Chief Administrative Officer of the Alabama State Board of Education.
    J. Doyle Fuller and Susan G. Copeland of Fuller & Copeland, Montgomery, for appellant Gordon Stone, individually and in his official capacity as Mayor of the Town of Pike Road.
    Theron Stokes and Clint Daughtrey of Alabama Education Association, Montgomery; James E. Wilson, Jr., Montgomery; Monica L. Arrington of Arrington & Arrington, Montgomery; Victoria D. Relf of The Relf Law Firm, LLC, Montgomery; and Fred F. Bell, Sr., Montgomery, for appellees.
    Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham; and Robert E. Poundstone IV of Bradley Arant Boult Cummings LLP, Montgomery, for amicus curiae City of Montgomery, in support of the appellants.
   MAIN, Justice.

Ed Richardson and Reginald Eggleston, individually and in their official capacities as interim superintendent of the Alabama Department of Education and chief administrative officer of the Alabama State Board of Education, respectively, and Gordon Stone, individually and in his official capacity as mayor of the Town of Pike Road (hereinafter collectively referred to as "the defendants"), appeal from an injunction entered by the Montgomery Circuit Court ("the trial court") staying the sale of Georgia Washington Middle School, located in Montgomery, and the sale of any other real property owned by, or the closure of any other schools operated by, the Montgomery County Board of Education. We hold that the trial court never had subject-matter jurisdiction over this case. Accordingly, we dismiss the appeal and order the trial court to dismiss the case.

Facts and Procedural History

The Montgomery County School System operates approximately 55 schools, 11 of which are on the "failing-schools" list established under the Alabama Accountability Act of 2013, codified at § 16-6D-1 et seq., Ala. Code 1975. Other Montgomery County schools, although not on the failing-schools list, are among Alabama's lowest achieving schools. As of early 2017, the Montgomery County Board of Education ("the MCBOE") was not in compliance with the School Fiscal Accountability Act, codified at § 16-13A-1 et seq., Ala. Code 1975 ("the SFAA"), because:

(a) The MCBOE did not have a permanent chief school financial officer;
(b) it had not met various financial requirements of the SFAA or was not timely in meeting those requirements;
(c) a majority of schools under the MCBOE's supervision were "priority schools" under the Educational Accountability and Intervention Act of 2013, codified at § 16-6E-1 et seq., Ala. Code 1975 ("the EAIA"), in other words, schools that were substantially and chronically underperforming based on indicators such as low proficiency scores, low graduation rates, high absentee rates, fiscal deficiencies, and school-safety or transportation issues;
(d) the Child Nutrition Program operations in its schools were inefficient, unorganized, and lacked accountability;
(e) student enrollment had declined consistently at an average rate of 1.85% per year since 2013; and
(f) the MCBOE had consistently operated with a general-fund balance that contained an accounting error of almost $4 million.

On January 12, 2017, the Alabama State Board of Education ("the ASBOE") intervened in the operations of the MCBOE under the intervention process authorized by the EAIA. The EAIA eliminated barriers to the implementation of reforms that had encumbered intervention procedures under earlier statutes. The predicate for intervention is the unwillingness or inability of a local school board to properly manage its affairs. Intervention and the "direct and comprehensive control over [a local board's] decision making and operational functions" are warranted "when the demonstrated inability of [a local board of education] to discharge administrative, operational, or instructional functions threatens to deprive students of essential educational services." § 16-6E-2(1), Ala. Code 1975.

The MCBOE consented to the intervention, which has begun to stabilize its school system both academically and financially. The MCBOE's financial position has improved under the guidance and direction of the ASBOE intervention team, including the retention of funds in the State's General Fund necessary to offset revenue shortfalls and expenditure overruns in fiscal year 2017, the negotiation of a treasury-management relationship with a local bank to generate recurring annual interest income, the reorganization of the Child Nutrition Program to maximize operating efficiency and accountability; and the enhancement of operating efficiency and accountability in custodial-services operations.

In mid-September 2017, then superintendent of the Alabama Department of Education ("the Department"), Michael Sentance, resigned his position. On September 14, 2017, the ASBOE appointed Dr. Ed Richardson as interim superintendent of the Department.

Around the same time Richardson accepted the appointment as interim superintendent, a lawsuit was filed in the Montgomery Circuit Court challenging the State's intervention into the Montgomery County School System and alleging multiple abuses of authority by Sentance and others. See Murrell v. Sentance, Case No. CV-2017-000501 ("Murrell"). The Montgomery Circuit Court entered an order staying "the proposed or putative transfers or other employment actions described in the verified complaint, including the transfers of not only the named Plaintiffs but of others similarly situated ... pending further review by, and orders of, this Court." The circuit court further directed the parties to mediate the case. Richardson and the other defendants settled the case in order to allow the intervention process to proceed smoothly. Because the parties successfully reached a mediation agreement, the circuit court dismissed the Murrell case on January 22, 2018.

During the pendency of the Murrell case, the MCBOE voted in October 2017 to sell Georgia Washington Middle School to the Town of Pike Road, subject to the results of an impact study to determine the operational and financial effects of the sale on the MCBOE. After that study was performed and the results reviewed, the MCBOE voted on November 3, 2017, to rescind the sale of Georgia Washington Middle School. Nevertheless, on February 9, 2018, Richardson announced his decision to sell Georgia Washington Middle School to the Town of Pike Road over the objection of the MCBOE. Richardson contended that he had the power under the EAIA to authorize the sale.

On February 23, 2018, different plaintiffs from those in the Murrell case-Edward Simms, Edwina A. Relf, and Tislam D. Ellis-filed another lawsuit naming as defendants Richardson, Eggleston, and Stone. They filed with the complaint a petition for a temporary restraining order ("TRO") and for preliminary injunctive relief, as well as an "Emergency Motion to Prevent Spoliation and to Preserve Evidence."

The plaintiffs alleged that each of them was "a tax-paying resident of Montgomery County." The plaintiffs further alleged that Simms was "employed by the [MCBOE] as a teacher at Robert E. Lee High School" and was "the parent of a student enrolled at Georgia Washington Middle School." They alleged that Relf was "employed by the [MCBOE] as a Child Nutrition Program Manager at Chisholm Elementary School." They alleged that Ellis was "employed by the MCBOE as a teacher at Sidney Lanier High School." Simms later withdrew as a plaintiff in the case.

The plaintiffs alleged in their complaint that Richardson and Eggleston had violated the EAIA and specifically challenged Richardson's authority to sell Georgia Washington Middle School. The complaint alleged breach of the fiduciary duty of good faith and fair dealing against Richardson and breach of the fiduciary duty of loyalty against all defendants. The plaintiffs sought an injunction against Richardson to prevent the sale of Georgia Washington Middle School, a judgment declaring that Richardson was without authority under the EAIA to sell MCBOE property, and a review of the legality of Richardson's decision to sell Georgia Washington Middle School.

On March 1, 2018, the trial court held a hearing on a request to reset the hearing on the petition for a TRO. During that hearing, the court suggested mediation. Soon after the hearing concluded, the court entered an order resetting the TRO hearing for March 29. Less than an hour later, the plaintiffs moved the trial court for an "Order to Maintain the Status Quo,"

which expanded on the relief requested in their initial petition for a TRO. On March 5, the trial court granted the plaintiffs' motion and issued the following order:

"THIS CAUSE coming to be heard on this 1st day of March 2018, and after consideration of Plaintiffs' Motion for Order to Maintain Status Quo filed therewith, it is hereby
"ORDERED, ADJUDGED AND DECREED that said motion is GRANTED; the proposed sale of Georgia Washington Middle School described in the verified complaint, and the proposed sale and/or closure of any other real property owned by the Montgomery County Board of Education, are hereby STAYED pending further orders of this Court. The parties shall maintain the status quo as to all properties owned by the Montgomery County Board of Education.
"Defendants are additionally hereby placed upon notice and are ORDERED that they are responsible for notification to any interested third parties and that all proceedings will be halted henceforth pending further rulings and orders from this Court.
"Further, Defendant Eggleston, Defendant Richardson, and any of their designees or agents, are prohibited from holding any public hearings, public forums, or public informational meetings regarding the proposed closure or sale of any real properties owned by the Montgomery County Board of Education; nor shall any party make any efforts to rezone, transfer, or enter new transportation routes for the students of the Montgomery Public Schools system attending the announced school closings."

(Capitalization in original.)

On March 7, the trial court formally ordered the parties to mediate. Also on March 7, Stone filed a motion seeking relief from the March 5 order and a dismissal of the litigation. On March 9, Richardson and Eggleston filed a motion to set aside the March 5 order. Richardson and Eggleston also filed a motion to dismiss the complaint, in which they challenged the trial court's subject-matter jurisdiction, alleging that the plaintiffs lacked standing to bring the action, that they were entitled to sovereign immunity, and that the plaintiffs' claims lacked justiciability. The parties attempted mediation on March 12, but did not achieve complete resolution of the case. On March 16, Richardson, Eggleston, and Stone filed affidavits in support of their motions to dismiss.

In the meantime, on March 9, 2018, Stone filed an emergency petition for a writ of mandamus with this Court (case no. 1170518), and, on March 13, Richardson and Eggleston filed a similar emergency petition (case no. 1170540). All three defendants filed several motions with their petitions, including an emergency motion to stay the proceedings in the trial court, a motion for expedited consideration of the petitions for the writ of mandamus, and a motion to consolidate the two cases. On March 16, Richardson, Eggleston, and Stone filed a notice of appeal from the trial court's order granting the plaintiffs' motion for an order to maintain the status quo, which the defendants characterized as an order granting a motion for a preliminary injunction (case no. 1170559). They also filed a motion for expedited appellate review, a motion to vacate the trial court's order and to dismiss the complaint, and a motion to consolidate the three appellate proceedings. This Court denied both petitions for a writ of mandamus and the accompanying motions, as well as the motion to consolidate and the motion to vacate and to dismiss filed in this case. This Court granted the motion for expedited appellate review, however, and we now consider the issues raised by the parties.

Discussion

On appeal, the defendants argue that the plaintiffs do not have standing to challenge the sale of Georgia Washington Middle School or any other MCBOE property and, thus, that the trial court never acquired subject-matter jurisdiction over this action and therefore the case, and this appeal, must be dismissed. We agree.

Initially, we briefly address the plaintiffs' threshold argument that this Court does not have jurisdiction to hear the appeal because, they say, the trial court's order was not an appealable order. The plaintiffs state that " 'injunctions' are appealable under Ala. R. App. P. 4., but a TRO or similar short-lived status quo order pending a scheduled hearing, in a non-domestic relations matter, is not an injunction." Plaintiffs' brief, at 20. According to the plaintiffs, "[t]his case involves the latter sort of order," and, thus, the order is not an appealable order. Id. However, contrary to the plaintiffs' contention, the present situation does not involve a "short-lived" nonappealable order. The trial court's order enjoined the sale of Georgia Washington Middle School and the proposed sale of any other real property owned by, or the closure of any other schools operated by, the MCBOE "pending further orders of this Court." On the face of the trial court's order, if this Court did not act, the injunctive relief would remain in place until the trial court issued "further orders," which is an indefinite time. Such an injunction is not in the nature of a "short-lived" TRO and is appealable. Therefore, the plaintiffs' argument is without merit, and we address the defendants' standing argument.

Concerning whether a party has standing to bring an action, this Court has stated:

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

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

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

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

Concerning whether a citizen has standing as a taxpayer, this Court has stated:

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

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

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

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

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

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

Therefore, generally, "to have standing to bring an action, the plaintiff must have an interest in the outcome of the action and show that he or she has suffered or imminently will suffer an injury." Ingle v. Adkins, 256 So. 3d 62, 71 (Ala. 2017). However,

"taxpayers have standing to seek an injunction against public officials to prevent illegal payments from public funds. This standing is based on the fact that taxpayers have an equitable ownership in the public funds and will be responsible for replenishing the public funds if those funds are misappropriated, and, thus, a taxpayer suffers an injury when public funds are illegally spent."

Id.

In the present case, according to the complaint, the remaining plaintiffs-Relf and Ellis-brought this action in their capacities as "tax-paying resident[s] of Montgomery County, Alabama." Further, the complaint states that Relf "is employed by the Montgomery County Board of Education as a Child Nutrition Program Manager at Chisholm Elementary School" and that Ellis "is employed by the MCBOE as a teacher at Sidney Lanier High School." Nowhere in the complaint, in the plaintiffs' appellate brief, or elsewhere do the plaintiffs allege that they will personally suffer any specific " 'actual, concrete and particularized "injury in fact." ' " Cedar Bluff, 904 So.2d at 1256 (quoting Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, LLC, 890 So.2d 70, 74 (Ala. 2003) ). Thus, to have standing, the plaintiffs must rely on their status as "tax-paying resident[s] of Montgomery County, Alabama." However, the challenged action-the sale of Georgia Washington Middle School-would not be an expenditure. Instead, the sale of Georgia Washington Middle School would bring money into the public treasury that tax-paying residents of Montgomery County are responsible for replenishing. Therefore, the plaintiffs will not suffer an injury as taxpayers; thus, they do not have standing as taxpayers to challenge the sale.

To support their argument that they have standing as taxpayers, the plaintiffs quote Island Equipment Land Co. v. Guam Economic Development Authority, 474 F.2d 753 (9th Cir. 1973), which in turn cites City of Bessemer v. Huey, 247 Ala. 12, 22 So.2d 325 (1945). Island Equipment Land Co. states:

"While it is true, as appellees point out, that the traditional rationale for a taxpayer suit is that the taxpayer-plaintiff has sustained pecuniary loss because the challenged government action wasted public funds derived from taxation (see Lyon v. Bateman, 119 Utah 434, 228 P.2d 818, 823 (1951) ; Henderson v. McCormick, 70 Ariz. 19, 215 P.2d 608, 611 (1950) ), it is also true that a clear, if less generally accepted, line of authority supports the theory that a citizen-taxpayer has standing to question the lawfulness of the sale or lease of public property without showing pecuniary harm, and, indeed, even though the sale or lease may be economically advantageous. See, e.g., Lien v. Northwestern Engineering Co., 74 S.D. 476, 54 N.W.2d 472 (1952) ; Colwell v. City of Great Falls, 117 Mont. 126, 157 P.2d 1013 (1945) ; City of Bessemer v. Huey, 247 Ala. 12, 22 So.2d 325 (1945) ; City of Shreveport v. Kahn, 194 La. 55, 193 So. 461 (1939) ; Hanlon v. Levin, 168 Md. 674, 179 A. 286 (1935)."

474 F.2d at 755.

In Huey, a taxpayer of the City of Bessemer ("the City") sued the City seeking to nullify a lease of the City Hall Auditorium and to enjoin performance of the lease. The issue in Huey was whether "the City of Bessemer, without specific statutory authority, [can] lease the City Auditorium to an individual for private business, viz., a theatre, when it was built with public funds for public and municipal purposes, and while it is being devoted to such uses." 247 Ala. at 14, 22 So.2d at 326. Without any analysis concerning standing, the Court simply stated: "Without doubt the complainant, as a resident and taxpayer of the City of Bessemer, has the right to maintain the bill of complaint." Id. Then, the Court analyzed the issue and held, without specific statutory authority, that the City could not lease the auditorium to a private individual for private use.

Huey stands for the "less generally accepted" view "that a citizen-taxpayer has standing to question the lawfulness of the sale or lease of public property without showing pecuniary harm, and, indeed, even though the sale or lease may be economically advantageous." 474 F.2d at 755. In any event, the issue in Huey was very different than the issue in the present case. In Huey, the City, without statutory authority, was attempting to lease public property to a private entity "for exclusive use as a theatre for the entertainment of the white race only and for no other purpose" when the property had been built with public funds for public use and was being devoted to such use. Huey, 247 Ala. at 13-14, 22 So.2d at 326. In the present case, a public entity is attempting to sell public property to another public entity for a legitimate public use, and it is undisputed that county boards of education have statutory authority to convey their property, see § 16-8-40, Ala. Code 1975. Therefore, Huey is distinguishable from the present case, and we find it unpersuasive.

A taxpayer has standing to challenge the unlawful disbursement of public funds that he or she is liable to replenish through the payment of taxes. In the present case, because the sale of Georgia Washington Middle School would bring money into the public treasury that tax-paying residents of Montgomery County are responsible for replenishing, tax-paying residents of Montgomery County do not have standing as taxpayers to challenge the sale.

Conclusion

Because the plaintiffs did not have standing to bring the present action, the trial court never acquired subject-matter jurisdiction over this case. Accordingly, we dismiss the appeal and order the trial court to dismiss the case.

APPEAL DISMISSED.

Parker, J., concurs.

Stuart, C.J., and Bolin, Main, Wise, Sellers, and Mendheim, JJ., concur specially.

MAIN, Justice, concurring specially.

The main opinion dismisses this appeal because the plaintiffs did not have standing to bring the underlying action. I write specially to express my opinion that, even if the plaintiffs had been able to satisfy the standing requirement, the proposed sale of Georgia Washington Middle School ordered by Ed Richardson, the interim State Superintendent of Education, appears to fall squarely within the broad authority granted the State Superintendent of Education by the Educational Accountability and Intervention Act of 2013, codified at § 16-6E-1 et seq., Ala. Code 1975 ("the EAIA").

An express legislative purpose of the EAIA is to "confirm the authority of the State Superintendent of Education to assume and exercise direct and comprehensive control of the decision making and operational functions of city and county boards of education" upon undertaking an educational intervention. § 16-6E-2(1), Ala. Code 1975 (emphasis added). Section 16-6E-4(5) provides that, "[i]f the State Board of Education approves a resolution authorizing educational intervention, the State Superintendent of Education may exercise plenary authority to make such decisions or take such actions as he or she reasonably deems necessary to correct the deficiencies that led to the request for approval of intervention or that may be discovered in the exercise of intervention authority." (Emphasis added.) Section 16-16E-4(6) provides particularly sweeping authority to the State Superintendent when conducting an educational intervention:

"While a city or county board of education is operating under educational intervention, the State Superintendent of Education or the chief administrative officer shall have the power and authority to act for and on behalf of the city or county board of education and its superintendent in all matters and for all purposes under the Code of Alabama 1975. No decision, action, or undertaking made or approved by the State Superintendent of Education or chief administrative officer shall require the separate recommendation, concurrence, or approval of any city or county board of education or any official thereof in order to be deemed final, valid, or enforceable...."

(Emphasis added.) Finally, § 16-6E-6, Ala. Code 1975, instructs that the EAIA is to be construed to "[p]rovide the State Superintendent of Education or the chief administrative officer with broad discretion and complete authority to make, direct, implement, and enforce decisions, actions, and measures which, in his or her judgment, are necessary and appropriate to the attainment of the objectives of educational intervention and to accord the fullest measure of deference to decisions and actions made by such officials in furtherance of intervention goals and objectives." (Emphasis added.)

In this case, there appears to be no dispute that the sale of Georgia Washington Middle School, if consummated, will provide an influx of nearly $10 million to the general fund of the Montgomery County School System. Given the financial crisis in which the school system finds itself, the decision to sell property unquestionably falls within the State Superintendent of Education's authority under the EAIA.

Stuart, C.J., and Bolin, Wise, Sellers, and Mendheim, JJ., concur.

      Richardson previously had served for many years as superintendent of the Department and then as president of Auburn University. He had participated in several school-system interventions throughout the State. Richardson had also served on the Pike Road Education Leadership Council that was responsible for developing a new school system for the Town of Pike Road, separate from the Montgomery County School System, and the Alabama Public Charter School Commission.

      As to Stone, the complaint alleged that the Town of Pike Road owed MCBOE $1.4 million, unrelated to the sale of Georgia Washington Middle School. While the underlying litigation was pending, the $1.4 million was paid to MCBOE.

      Without any supporting argument, the plaintiffs also cite Ex parte State of Alabama ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2015) ("API"), for the proposition that "a different (and more forgiving) type of standing analysis still applies in at least some sorts of cases involving duties owed by government officials to the public." Plaintiffs' brief, at 26. However, API concerned the rule of public-interest standing, which states that "a relator has standing to bring a petition for mandamus or comparable relief, in the name of the State, seeking to uphold a State statute and to secure performance by respondents of a duty owed to the public." API, 200 So.3d at 515 (emphasis omitted). The present action was not brought in the name of the State; thus, the rule of public-interest standing, as stated in API, does not apply.