text:
    John F. WARE a/k/a John Fitzgerald Ware a/k/a John Ware, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00853-COA
    Court of Appeals of Mississippi.
    September 18, 2018 Rehearing Denied December 4, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. A jury in the Scott County Circuit Court convicted John Ware of possession of a deadly weapon by a convicted felon. The trial court sentenced Ware as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to ten years in the custody of the Mississippi Department of Corrections, with two years suspended and two years of postrelease supervision. Ware's trial counsel filed a posttrial motion, which the trial court denied.

¶ 2. Through his appointed appellate counsel, Ware appeals arguing that the evidence was insufficient to support the guilty verdict. Ware also filed a pro se brief asserting ineffective assistance of counsel and an illegal sentence.

FACTS

¶ 3. On June 25, 2016, around 11:00 pm, Sergeant Timothy Lloyd with the Scott County Sheriff's Department responded to a 911 call about a domestic disturbance between Ware and his wife, Francis, at their house. When Sergeant Lloyd arrived, Ware was washing a car in the driveway, and Francis was inside the house. Sergeant Lloyd testified that he spoke with Francis, who informed him that Ware did not live at the house and that she wanted Ware to leave the premises. While speaking with Ware, Sergeant Lloyd looked into Ware's car and noticed a large knife with gray duct tape wrapped around the handle. Sergeant Lloyd stated that Ware said the knife was for his protection. Sergeant Lloyd confiscated the knife, later turning it over to Investigator Bill Patrick, who also was with the Scott County Sheriff's Department.

¶ 4. Investigator Patrick testified that he believed the knife was a butcher knife based on the length of the blade (approximately eight inches) and the curved tip. Aware that Ware had at least one prior felony conviction, Investigator Patrick brought Ware in for questioning. After waiving his Miranda rights, Ware told Investigator Patrick that he kept the knife in his car for protection.

¶ 5. During trial, Ware stated that he used the knife as a household tool.

DISCUSSION

I. Insufficient Evidence

¶ 6. Ware first argues that the evidence was insufficient to support the guilty verdict. Specifically, Ware contends the State failed to produce sufficient evidence that the knife was a butcher knife.

¶ 7. In reviewing the sufficiency of the evidence, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed...." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (internal quotation mark omitted), overruled on other grounds by Little v. State , 233 So.3d 288 (Miss. 2017). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, that the essential elements of the crime existed, this Court will affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State , 866 So.2d 1107, 1112 (¶ 17) (Miss. Ct. App. 2003).

¶ 8. Mississippi Code Annotated section 97-37-5(1) (Rev. 2014) states: "It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, [or] butcher knife ...." The indictment charged Ware with possession of a butcher knife as a convicted felon.

¶ 9. We first note that Ware failed to preserve for appeal any objection or assignment of error relating to the lack of a specific definition for a butcher knife. And Ware never requested a jury instruction to define butcher knife, nor did he define it for the jury. Regardless of any procedural bar, we will address the merits.

¶ 10. Ware cites to Harris v. State , 172 So.3d 191 (Miss. Ct. App. 2014), for support. In Harris , the defendant argued that the State did not prove he possessed a butcher knife. Id. at 194 (¶ 7). We noted more than one definition of a butcher knife, including "a heavy-duty knife, usually six to eight inches long having a broad rigid blade that curves slightly at the tip" and "a large, very sharp knife for cutting or trimming meat." Id. at 194-95 (¶ 10). Finding that the knife Harris possessed did not fit either description, we reversed his conviction. Id. at 195 (¶ 10). As noted, the knife possessed by Harris was "not large or heavy duty and [did] not have a broad blade that curve[d] slightly at the tip." Id.

¶ 11. Here, Investigator Patrick testified that the blade of the knife was approximately eight inches with a curved tip and a sharp edge. The jury viewed the knife after it was admitted into evidence during Sergeant Lloyd's testimony. From the evidence presented, we find that the evidence was sufficient for the jury to conclude that Ware possessed a butcher knife.

II. Ineffective Assistance of Counsel

¶ 12. In his pro se brief, Ware argues that his trial counsel, Shawn Harris, was ineffective for two reasons. The first concerned his attorney's pretrial actions, and the second concerned his attorney's posttrial actions. But ineffective-assistance-of-counsel claims are more appropriately brought in postconviction relief proceedings. See Williams v. State , 228 So.3d 949, 952 (¶ 12) (Miss. Ct. App. 2017). A claim for ineffective assistance of counsel should only be addressed on direct appeal where "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Reed v. State , 204 So.3d 785, 789 (¶ 16) (Miss. Ct. App. 2016) (quoting Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015) ). Here, the State stipulates that the record is adequate for this Court to make such a finding only regarding Ware's posttrial ineffective-assistance-of-counsel claim. We will address each claim separately.

¶ 13. In an ineffective-assistance-of-counsel claim,

a defendant must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. The burden of proof rests with the defendant to prove both prongs. Under Strickland ,[ ] there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State , 202 So.3d 633, 636 (¶ 7) (Miss. Ct. App. 2016) (quoting Maggitt v. State , 26 So.3d 363, 365 (¶ 12) (Miss. Ct. App. 2009) ). There is also a presumption that decisions made by defense counsel are strategic, and this Court "will not second-guess counsel's decisions that fairly may be characterized as strategic." Shinn v. State , 174 So.3d 961, 966 (¶ 12) (Miss. Ct. App. 2015). Finally, we look "at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Howell v. State , 163 So.3d 240, 259 (¶ 49) (Miss. 2014) (quoting Williams v. State , 73 So.3d 1125, 1129 (¶ 12) (Miss. 2011) ).

A. Pretrial Claim

¶ 14. Because the State argues that there is insufficient evidence in the record to address Ware's claim of pre-trial ineffective assistance of counsel, we must determine whether the record affirmatively shows that Ware was denied effective assistance of counsel. Ware claims Harris had a conflict of interest since he was representing Ware in a workers' compensation case prior to the criminal charges in this case. Ware claims he wanted to plead guilty but that Harris wanted him to wait until the workers' compensation case was settled. According to Ware, Harris led him to believe the criminal charges would be dismissed or that his sentence would be less than the one he received. But Ware's claims are based solely on the allegations in his brief, and "[b]are allegations are insufficient to prove ineffective assistance of counsel." McCray v. State , 107 So.3d 1042, 1045 (¶ 12) (Miss. Ct. App. 2012). Additionally, Ware has not submitted affidavits to support his claim, either from himself or other potential witnesses. As a result, Ware's pretrial ineffective-assistance-of-counsel claims are more appropriately brought during postconviction proceedings. Therefore, we deny relief without prejudice as to Ware's right to pursue this claim during postconviction proceedings.

B. Posttrial Claim

¶ 15. The State stipulates that the record is sufficient to address Ware's posttrial ineffective-assistance-of-counsel claims. As such, we will consider the merits.

¶ 16. Ware argues that he was prejudiced when another attorney, Mitchell Thomas, stood in for Harris during the sentencing hearing. Ware claims the trial court should have postponed the sentencing hearing until Harris could attend. He also suggests that Thomas should have objected. But Ware has failed to show how this prejudiced his case, nor did he submit any affidavits to support this assertion. During the sentencing hearing, the trial judge recessed the hearing to give Thomas time to review the State's presentence-investigation report from the Mississippi Department of Corrections with Ware. When the hearing reconvened, the State then introduced the report into evidence with no objection by Thomas. The report contained certified copies of Ware's prior felony convictions. We find no merit to this issue.

¶ 17. We note that although Ware claims that Harris failed to file a posttrial motion, the record indicates Harris did file a motion for a new trial.

III. Illegal Sentence

¶ 18. Ware also argues that his sentence was illegal because the State failed to prove he was a habitual offender. However, the State admitted the report into evidence during the sentencing hearing. And the report contained certified copies of Ware's three prior felony convictions. Ware also claims he never saw the presentence investigation report. As previously stated, the trial judge recessed the sentencing hearing in order for Thomas and Ware to review the report. This issue is without merit.

¶ 19. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Ware had four prior felony convictions-two for business burglary and two for possession of methamphetamine.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    EX PARTE Jon S. SANDERSON et al.
    (In re: Harold L. Wainwright, derivatively on behalf of Sterne Agee Group, Inc. v. James S. Holbrook, Jr., et al.)
    James S. Holbrook, Jr., and William K. Holbrook v. Harold Lowell Wainwright, derivatively on behalf of Sterne Agee Group, Inc.
    1160824 1160832
    Supreme Court of Alabama.
    February 9, 2018 Rehearing Application Denied April 20, 2018
    Ed R. Haden, Lee H. Zell, Will Hill Tankersley, and Michael P. Taunton of Balch & Bingham LLP, Birmingham, for petitioners Jon S. Sanderson, Eric B. Needleman, Sal A. Nunziata, Robert G. Nunziata, Walter S. Robertson III, Walter A. Ruch III, Henry S. Lynn, Jr., Linda M. Daniel, Jay W. Carter, and Joe R. Roberts, Jr.
    Bruce L. Gordon and John G. Dana of Gordon, Dana & Gilmore, LLC, Birmingham, for appellants James S. Holbrook, Jr., and William K. Holbrook.
    Thomas E. Baddley, Jr., Jeffrey P. Mauro, and John Parker Yates of Baddley, Mauro & Yates, LLC, Birmingham; and Andrew P. Campbell, Stephen D. Wadsworth, and Yawanna McDonald of Campbell, Guin, LLC, Birmingham, for respondent/appellee Harold L. Wainwright.
    Carole G. Miller and Matthew I. Penfield of Bressler, Amery & Ross, PC, Birmingham, for respondent Sterne Agee, LLC.
    Marc James Ayers, David G. Hymer, and Tiffany J. deGruy of Bradley, Arant Boult Cummings LLP, Birmingham, for respondents Stifel Financial Corp. and Saban Successor Subsidiary, LLC.
   BRYAN, Justice.

James S. Holbrook, Jr., and William K. Holbrook ("the Holbrooks") filed a notice of appeal from a postjudgment order of the Jefferson Circuit Court ("the trial court") that reinstated Harold Lowell Wainwright's claims against them, which the trial court had previously disposed of by granting the Holbrooks' motion to dismiss as to certain claims and their motion for a summary judgment as to others. Jon S. Sanderson; Eric B. Needleman; Sal A. Nunziata; Robert G. Nunziata; Walter S. Robertson III; Walter A. Ruch III; Henry S. Lynn, Jr.; Linda M. Daniel; Jay W. Carter; and Joe R. Roberts, Jr. ("the non-Holbrook directors"), who are codefendants with the Holbrooks in Wainwright's action, petition this Court for a writ of mandamus directing the trial court to vacate its postjudgment order that reinstated Wainwright's claims against them, which the trial court had previously disposed of by entering a summary judgment for the non-Holbrook directors.

Facts and Procedural History

On July 2, 2014, Traci Salinas and Sharon Lee Stark, as shareholders of Sterne Agee Group, Inc. ("SAG"), a Delaware corporation, filed a shareholder-derivative action, on behalf of nominal defendant SAG, against the Holbrooks and the non-Holbrook directors, who together composed the SAG board of directors. Salinas and Stark alleged that the Holbrooks had breached their fiduciary duty to the SAG shareholders by misusing, misappropriating, and wasting corporate assets and that the non-Holbrook directors had knowledge of, and had acquiesced in, the Holbrooks' alleged misconduct.

In 2015, while Salinas and Stark's action was pending, SAG entered into a merger agreement with Stifel Financial Corp. ("Stifel") pursuant to which Stifel would acquire SAG ("the merger"). As a result of the merger, each share of certain classes of SAG stock was to be converted into a right of the shareholder to receive a pro rata share of merger consideration in cash and/or shares of Stifel common stock. As a precondition to receiving merger consideration, a SAG shareholder was required to execute an indemnification and release agreement ("the release agreement") releasing SAG, its directors, Stifel, and Saban Successor Subsidiary, LLC ("Saban"), a wholly owned subsidiary of Stifel,

"from any and all liabilities and obligations to [the shareholder] of any kind or nature whatsoever, in his, her or its capacity as a current or former equity holder, ... whether absolute or contingent, liquidated or unliquidated, known or unknown, ... and [the shareholder] agrees that he, she or it shall not seek to recover any amounts in connection therewith or thereunder from [SAG, its directors, Stifel, or Saban] ...."

The release agreement further provided that the claims covered by the agreement included, without limitation, "any claims for breach of fiduciary duty arising from any actions or inactions at or prior to" the merger and that the agreement was

"a general release and a covenant not to sue that extinguishes all claims released above and precludes any attempt by the [shareholder] to initiate any litigation against [SAG, its directors, Stifel, or Saban] with respect to the claims released above. If the [shareholder] commences any claim in violation of this release, [SAG, its directors, Stifel, and Saban] shall be entitled to assert this release as a complete bar."

On March 31, 2015, Wainwright, then a SAG shareholder, executed the release agreement and received in exchange for his shares of SAG stock $281,573.22 in cash and 18,994 shares of Stifel common stock, which were valued in the aggregate at approximately $1.09 million. The merger was completed on June 5, 2015. Approximately three months later, Salinas and Stark amended their complaint to add Wainwright as a plaintiff and to dismiss Stark as a plaintiff.

On September 4, 2015, the Holbrooks filed a motion for a summary judgment in which they argued that, under Delaware law, when a plaintiff in a shareholder-derivative action ceases to be a shareholder of the corporation on whose behalf the action was brought, the shareholder is divested of standing to continue prosecuting the derivative action. Thus, the Holbrooks argued, because Salinas and Wainwright were no longer SAG shareholders following the merger, they lacked standing to prosecute their derivative action and, the argument continued, the Holbrooks were entitled to a judgment as a matter of law.

In response, Salinas and Wainwright amended the complaint to allege that the Holbrooks' and the non-Holbrook directors' alleged misconduct asserted in the original complaint constituted "a snowballing pattern of fraudulent conduct" that allegedly forced the sale of SAG "at a significantly depressed value" in an allegedly fraudulent attempt "to cover massive wrongdoing." Salinas and Wainwright argued that a merger "cannot absolve fiduciaries from accountability for fraudulent conduct that necessitated the merger." Rather, they maintained, "such conduct gives rise to a direct claim that survives the merger, as the injury caused by such misconduct is suffered by the shareholders rather than the corporation, and thereby supports a direct cause of action." (Emphasis added.) Thus, given their allegations of fraud, Salinas and Wainwright asserted, in addition to the original derivative claims, direct claims of breach of a fiduciary duty; negligence; and intentional, reckless, and innocent misrepresentation and suppression. Subsequently, the parties filed a stipulation of dismissal in which they dismissed Salinas from the action, leaving Wainwright as the sole plaintiff.

The Holbrooks filed a motion to dismiss Wainwright's amended complaint in which they asserted that Wainwright's direct claims were actually derivative claims, regardless of how Wainwright labeled them, and that, as such, the claims were due to be dismissed for the reasons set forth in the Holbrooks' motion for a summary judgment. Subsequently, the non-Holbrook directors filed a motion for a summary judgment in which they asserted the release agreement executed by Wainwright as a defense to Wainwright's claims, whether derivative or direct. Thereafter, the Holbrooks supplemented their motion to dismiss to assert the release agreement as a bar to Wainwright's claims.

In response to the Holbrooks' motion to dismiss and the non-Holbrook directors' motion for a summary judgment, Wainwright argued that the release agreement was unenforceable because, he said, it had been procured by fraud in that, he said, the Holbrooks and the non-Holbrook directors failed to make adequate disclosures regarding material terms of the merger. Wainwright further argued that the release agreement was unenforceable because, he said, it was not supported by consideration. Although Wainwright undisputedly received merger consideration, he argued that the merger consideration he received could not constitute consideration for the release agreement. According to Wainwright, payment for his shares of SAG stock was a preexisting duty owed to SAG shareholders by virtue of the merger, and, thus, Wainwright contended, Delaware law precluded SAG from conditioning payment for his shares of SAG stock upon an additional obligation, i.e., the execution of the release agreement.

On January 6, 2017, Judge Peyton C. Thetford entered a judgment ("the January judgment") dismissing Wainwright's derivative claims on the basis that, under Delaware law, Wainwright did not have standing to prosecute those claims after the merger because he was no longer a SAG shareholder. As to Wainwright's remaining claims, Judge Thetford determined that the Holbrooks and the non-Holbrook directors were entitled to a judgment as a matter of law on the basis that the release agreement precluded those claims. Judge Thetford rejected Wainwright's argument that the release agreement was not supported by consideration and also determined that, even if the release agreement was unsupported by consideration, Wainwright's failure to return the merger consideration he received for his SAG stock precluded him from challenging the validity of the release agreement on the basis that it had been procured by fraud.

On February 6, 2017, Wainwright filed a motion to alter, amend, or vacate the January judgment. See Rule 59(e), Ala. R. Civ. P. On April 19, 2017, the trial court, then under the direction of Judge Brendette Brown Green, held a hearing on Wainwright's motion. Subsequently, on May 8, 2017, Judge Green entered an order ("the May order") in which she concluded that Judge Thetford's rulings "rest[ed] upon a manifest error of law." As a result, the May order granted Wainwright's postjudgment motion, thus reinstating his claims against each defendant, and ordered the parties to proceed with discovery.

On June 16, 2017, the Holbrooks filed a notice of appeal from the May order. Wainwright moved to dismiss the appeal, arguing that, because the May order reinstated his claims, that order was interlocutory and, thus, would not support the Holbrooks' appeal. On June 19, 2017, the non-Holbrook directors, seeking to have the May order set aside and the January judgment reinstated, petitioned this Court for a writ of mandamus. The non-Holbrook directors' petition was assigned case no. 1160824. This Court elected to treat the Holbrooks' appeal as a petition for a writ of mandamus, see F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366 (Ala. 2006), and assigned the Holbrooks' petition case no. 1160832. We then consolidated the two petitions for the purpose of writing a single opinion. The Holbrooks and the non-Holbrook directors are hereinafter collectively referred to as "the petitioners."

Discussion

Before reaching the merits of the petitions, we must first address Wainwright's contention that the May order is not properly reviewable by petition for a writ of mandamus and, thus, that the petitions are due to be denied. Because the May order vacated the January judgment and reinstated Wainwright's claims, it operated as a denial of the Holbrooks' motion to dismiss and the non-Holbrook directors' motion for a summary judgment. " ' "The denial of a motion to dismiss or a motion for a summary judgment generally is not reviewable by a petition for writ of mandamus, subject to certain narrow exceptions ...." ' " Ex parte University of South Alabama, 183 So.3d 915, 918 (Ala. 2016) (quoting Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006), quoting in turn Ex parte Haralson, 853 So.2d 928, 931 n. 2 (Ala. 2003) ). " 'In all but the most extraordinary cases, an appeal is an adequate remedy ....' " Ex parte Watters, 212 So.3d 174, 181 (Ala. 2016) (quoting Ex parte Jackson, 780 So.2d 681, 684 (Ala. 2000) (emphasis added) ). In Ex parte U.S. Bank National Ass'n, 148 So.3d 1060 (Ala. 2014), this Court recognized that one of the exceptions under which this Court will review by a petition for a writ of mandamus the denial of a motion to dismiss or a motion for a summary judgment is when there is a question regarding the trial court's subject-matter jurisdiction. 148 So.3d at 1064. Relying on that exception, the petitioners argue that the release agreement implicates the trial court's subject-matter jurisdiction in that, they say, it renders Wainwright's claims moot, and, the petitioners say, "moot[ness] raises a question of subject matter jurisdiction that is reviewable by mandamus." The non-Holbrook directors' petition, at 2. Wainwright argues, on the other hand, that a release is an affirmative defense that, even if valid and applicable to a plaintiff's claims, does not divest a trial court of subject-matter jurisdiction over those claims.

In support of their argument that the release agreement moots Wainwright's claims, the petitioners cite Pharmacia Corp. v. Suggs, 932 So.2d 95 (Ala. 2005). In Pharmacia Corp., John and Linda Suggs sued multiple defendants in state court in a putative class action. (The state court refused to certify the class.) The Suggses' action was stayed pending resolution of a related federal action, and, ultimately, the parties to the federal action entered into a settlement agreement that discharged and satisfied all claims the Suggses had or could have had against the defendants. Although the Suggses received payments under the settlement agreement, they refused to enter into a stipulation of dismissal of the state action and later filed a motion for substitution and/or joinder of new plaintiffs to the purported class action. The circuit court presiding over the action entered an order granting the Suggses' motion, and this Court granted the defendants' petition for permissive appeal to address whether plaintiffs who have entered into a settlement agreement and have accepted payment in satisfaction of their claims can subsequently amend their complaint to substitute new plaintiffs. In reversing the circuit court's order, this Court stated: "Because the Suggses accepted the settlement that resulted in the entirely appropriate dismissal of their claims in this case, the matters made the basis of the complaint became moot, and the trial court no longer had subject-matter jurisdiction to entertain a motion to amend the moot complaint." 932 So.2d at 99. Given that holding, the petitioners argue that the release agreement executed by Wainwright "terminat[ed] any case or controversy, rendering the case moot, and depriving the trial court of subject matter jurisdiction." The non-Holbrook directors' petition, at 6.

However, the facts of Pharmacia Corp. are distinguishable from the facts of this case. Particularly, with respect to mootness, there is a relevant distinction between a settlement agreement that disposes of pending litigation and a release executed before the releasor has commenced legal proceedings against the releasee. In the former scenario, when parties to pending litigation enter into an agreement that settles the pending claims in their entirety, the claims and the controversy giving rise to those claims become moot, and the parties leave nothing for the court presiding over the litigation to adjudicate. Thus, as we said in Pharmacia Corp., once the pending claims become moot, the court presiding over those claims is, in the absence of a controversy, divested of subject-matter jurisdiction. See Hasting v. Roberts, 230 So. 3d 391, 396 (Ala. 2017) (noting that, when a claim becomes moot, "there is no longer an actual controversy to be decided," and the court therefore lacks subject-matter jurisdiction over the claims).

On the other hand, in a case such as the one before us, when a releasor executes a release before initiating legal proceedings against the releasee, there are no pending claims to be mooted by the release, and the release does not "moot" any post-release claims the releasor might elect to bring. Granted, the release might ultimately bar the relief the releasor seeks pursuant to post-release claims, but, once the releasor files post-release claims, there is nevertheless an actual controversy that must be resolved by the court presiding over those claims, unlike the case in which a settlement agreement disposes of pending claims and leaves nothing for the court presiding over those claims to adjudicate.

Compare Pharmacia Corp., supra, with American Homes & Land Corp. v. C.A. Murren & Sons Co., 990 So.2d 871 (Ala. 2008) (affirming summary judgment in dispute as to whether the plaintiff's post-release claims were outside the scope of the release and holding that they were not); Newburn v. Dobbs Mobile Bay, Inc., 657 So.2d 849 (Ala. 1995) (holding that whether a release was unenforceable on ground that it was executed under economic duress was a question of fact precluding summary judgment); and Cleghorn v. Scribner, 597 So.2d 693 (Ala. 1992) (affirming summary judgment, holding that a release was not unenforceable on grounds that it was procured by fraud and was not supported by consideration). Thus, Pharmacia Corp. does not support the petitioners' argument that the release agreement mooted Wainwright's as yet unasserted claims and thus divested the trial court of subject-matter jurisdiction over those claims.

In addition, a release is an affirmative defense that is waived if not affirmatively pleaded. See Rule 8(c), Ala. R. Civ. P. (recognizing release as an affirmative defense); and McCrary v. Butler, 540 So.2d 736, 740 (Ala. 1989) (" Rule 8(c)... requires that an affirmative defense be specially pleaded. Failure to affirmatively set forth a defense required to be affirmatively pleaded constitutes a waiver of the defense."). Thus, because the defense of release is waivable, it logically follows that a release, even if valid, does not divest a trial court of subject-matter jurisdiction to consider post-release claims because it is well established that subject-matter jurisdiction cannot be waived. Russell v. Fuqua, 176 So.3d 1224, 1227 (Ala. 2015). Compare Atkinson v. State, 986 So.2d 408 (Ala. 2007) (noting that the State cannot waive the defense of sovereign immunity because the immunity defense implicates a court's subject-matter jurisdiction).

Because a release asserted as a defense to post-release claims does not moot those claims or otherwise implicate a trial court's subject-matter jurisdiction, the May order does not fall within the subject-matter-jurisdiction exception to the general rule that this Court will not review by a petition for a writ of mandamus an interlocutory order denying a motion to dismiss or a motion for a summary judgment.

Furthermore, we are not persuaded by the petitioners' argument that a future appeal will be an inadequate remedy and thus that mandamus review is appropriate in this case. According to the petitioners, a subsequent appeal is an inadequate remedy in this case because, they say, requiring them to litigate Wainwright's claims and then appeal from an adverse judgment will deprive them of the benefit of the release agreement, given that, the petitioners say, "the purpose of a release is to prevent the released parties from having to litigate the released claims." The non-Holbrook directors' petition, at 19.

This Court has recognized that an appeal is an inadequate remedy in cases where it has determined that a defendant should not have been subjected to the inconvenience of litigation because it was clear from the face of the complaint that the defendant was entitled to a dismissal or to a judgment in its favor. See Ex parte Hodge, 153 So.3d 734, 749 (Ala. 2014) (holding that an appeal from a final judgment was an inadequate remedy where the defendants were "faced with the extraordinary circumstance of having to further litigate this matter after having demonstrated from the face of the plaintiff's complaint a clear legal right to have the action against them dismissed"); and U.S. Bank, 148 So.3d at 1065 (issuing a writ of mandamus directing the dismissal of the plaintiff's case where it was "apparent on the face of the complaint that there is an obvious conflict-of-laws issue" and it "would waste the resources of the court and the parties, and an appeal after a final judgment would be an inadequate remedy, where an action would be barred if the law of another state applied" (emphasis added) ). See also Hodge, 153 So.3d at 748 (noting that " 'the very reason for the limited exceptions we have carved out to the general rule that interlocutory denials of motions to dismiss and motions for a summary judgment cannot be reviewed by way of a petition for a writ of mandamus is that there are certain defenses (e.g., immunity, subject-matter jurisdiction, in personam jurisdiction, venue, and some statute-of-limitations defenses) that are of such a nature that a party simply ought not to be put to the expense and effort of litigation' " (quoting Ex parte Alamo Title Co., 128 So.3d 700, 716 (Ala. 2013) (Murdock, J., concurring specially) ) ).

However, aside from the limited exceptions recognized by this Court and those cases in which it is clear from the face of the complaint that a defendant is entitled to a dismissal or a judgment in its favor, the drastic and extraordinary remedy of a writ of mandamus is not available merely to alleviate the inconvenience and expense of litigation for a defendant whose motion to dismiss or motion for a summary judgment has been denied. Thus, in cases where no recognized exception is applicable and in cases where it is not clear from the face of the complaint that a defendant has a clear legal right to a dismissal or a judgment in its favor, this Court has declined to issue the extraordinary writ and has held that an appeal following a final judgment is an adequate remedy. See Watters, 212 So.3d at 182 (denying mandamus relief, and holding that an appeal was an adequate remedy, in a case where it was "not abundantly clear from the face of the complaint" that the defendant was entitled to dismissal because the issue whether a client's legal-malpractice claim sounded in tort, which would not survive the client's death, or contract, which would survive the client's death, was "sharply disputed by the parties" (second emphasis added) ).

Here, although the petitioners argue that the release agreement precludes Wainwright's claims, we cannot say that that conclusion is clear from the face of the complaint. Even if we assume (which we do not) that it is clear from the face of the complaint that Wainwright's claims are within the scope of the release agreement, Wainwright has argued that the release agreement is unenforceable, and, if he is able to prove as much, the release agreement will not bar his claims. Which party has the better of the argument regarding the validity and applicability of the release agreement is of no consequence to us at this stage of the proceedings, nor should anything in this opinion be interpreted as a commentary on either the viability of Wainwright's claims or whether the release agreement bars those claims. For our purposes, it is sufficient to note that, given Wainwright's allegation that the release agreement is unenforceable, it is "not abundantly clear,"

Watters, 212 So.3d at 182, from the face of the complaint that the petitioners are entitled to relief based on the release agreement. Accordingly, as in Watters, supra, the circumstances of this case do not warrant the extraordinary remedy of a writ of mandamus. If Wainwright obtains a judgment against the petitioners, an appeal will serve as an adequate remedy. See Regional Health Servs., Inc. v. Hale Cty. Hosp. Bd., 565 So.2d 109 (Ala. 1990).

Conclusion

For the reasons set forth above, the May order does not come within the subject-matter-jurisdiction exception to the general rule that the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for a writ of mandamus. The petitioners have an adequate remedy by way of appeal should they suffer an adverse judgment. Accordingly, we deny the petitions.

1160824-PETITION DENIED.

1160832-PETITION DENIED.

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

Sellers, J., recuses himself.

      Before the trial court entered the January judgment, Wainwright had amended the complaint to add Stifel and Saban as defendants. Wainwright alleged that Stifel had aided and abetted the Holbrooks and the non-Holbrook directors with the allegedly fraudulent merger but did not set forth any allegations against Saban. Stifel and Saban each filed motions to dismiss, and the January judgment determined that Stifel and Saban were also entitled to a judgment as a matter of law on Wainwright's claims. Thus, each of Wainwright's claims was disposed of as to all defendants.

      Judge Green did not identify, either in the May order or at the hearing on Wainwright's postjudgment motion, the "manifest error of law" in the January judgment.

      The May order appears to have reinstated all of Wainwright's claims, including the claims against Stifel and Saban. See note 1, supra. However, neither Stifel nor Saban has petitioned this Court for relief from the May order, although they filed an "Answer and Brief of Respondents" in case no. 1160824. See Rule 21(b), Ala. R. App. P.

      The petitioners also cite Ex parte Ingalls Shipbuilding Corp., 32 Ala. App. 609, 28 So.2d 808 (1947), in support of their argument. However, Ingalls Shipbuilding involved mandamus review of an order vacating a worker's compensation settlement agreement that had been approved by a circuit court pursuant to Ala. Code 1940, Tit. 26, § 278 (now § 25-5-56, Ala. Code 1975 ). Nothing in Ingalls Shipbuilding provides that a release moots post-release claims or otherwise implicates a trial court's subject-matter jurisdiction.

      To be clear, we are not suggesting that the petitioners waived the defense of release. We merely note that the defense is waivable in further support of the proposition that the defense does not implicate a trial court's subject-matter jurisdiction.


author: BOLIN, Justice.

text:
    EX PARTE ALFA INSURANCE CORPORATION et al.
    (In re: R.G. "Bubba" Howell, Jr., and M. Stuart "Chip" Jones v. Alfa Insurance Corporation et al.)
    1170077
    Supreme Court of Alabama.
    April 6, 2018
    William P. Gray, Jr., Douglas N. Robertson, and John David Gray of Gray & Associates, LLC, Birmingham, for petitioner.
    R. Matt Glover of Prince, Glover & Hayes, P.C., Tuscaloosa; and P. Ted Colquett of Colquett Law, LLC, Birmingham, for respondents.
   BOLIN, Justice.

Alfa Insurance Corporation, ALFA Mutual General Insurance Corporation, ALFA Life Insurance Corporation, and ALFA Specialty Insurance Corporation (hereinafter referred to collectively as "Alfa") petition this Court for a writ of mandamus seeking review of an order entered by the Montgomery Circuit Court on December 18, 2015. Alfa requests this Court to order the circuit court to vacate its December 18, 2015, order and to grant its motion for a protective order.

Although Alfa sets forth three issues for this Court's review, we review only one of those issues: Whether the circuit court had jurisdiction to enter the December 18, 2015, order and whether it exceeded its discretion by not setting that order aside. Our conclusion that the circuit court exceeded its discretion in entering the December 18, 2015, order compelling discovery pretermits discussion of the two discovery issues.

Facts

The issues presented by this petition are primarily procedural. However, a brief recitation of the underlying facts is necessary for a complete understanding of the case. R.G. "Bubba" Howell, Jr., and M. Stuart "Chip" Jones were insurance agents for an Alfa insurance agency in Mississippi. Their agency agreements with Alfa included an arbitration provision, as well as a provision requiring Howell and Jones to purchase "errors and omissions" insurance coverage.

Howell and Jones purchased errors and omissions insurance policies from Alfa Mutual General Insurance Corporation ("the E & O policies"). The certificate of insurance for the E & O policies provided that Alfa, as the insurer, would

"pay on behalf of the Individual Insured all sums in excess of deductible amount for which Individual Insured is legally obligated to pay as damages as a result of CLAIMS FIRST MADE AGAINST INDIVIDUAL INSURED DURING THE COVERAGE PERIOD by reason of acts, errors, or omissions in the performance of Professional Services by the Individual Insured, provided that such acts, errors, or omissions occurred (i) when acting on behalf of [Alfa] or with the specific consent of [Alfa], and (ii) during the Coverage Period."

(Capitalization in original.) The certificate also sets forth three "key exclusions" to coverage under the E & O policies: "(1) Intentional, dishonest, fraudulent, etc., acts; (2) Commingling of funds; (3) Suits/claims by business enterprises owned by Individual Insured and not named on declarations."

In 2012, Alfa accused Howell and Jones of selling competing products in contravention of their agency agreements; Howell and Jones, however, alleged that their actions had been approved by Alfa. Regardless, Alfa forced Howell to resign his position as an Alfa agent on December 31, 2012, and discharged Jones on January 1, 2013.

Procedural History

A. The First Arbitration Proceeding

On March 27, 2013, Howell and Jones invoked the arbitration provision in their agency agreements by initiating separate arbitration proceedings against Alfa, seeking post-separation benefits and damages. On June 19, 2013, Alfa answered the complaints in arbitration and filed counterclaims against Howell and Jones alleging breach of contract, breach of fiduciary duty, fraudulent misrepresentation, suppression, and intentional interference with business relations.

Howell's arbitration proceeding began on February 10, 2014; Jones's arbitration proceeding began on February 16, 2014. In March 2014, arbitrators awarded Howell and Jones post-separation benefits and arbitration fees. Alfa's counterclaims against Howell and Jones, however, remained pending.

On May 23, 2014, Howell and Jones submitted insurance claims under the E & O policies demanding that Alfa defend and/or indemnify costs to combat Alfa's counterclaims against them. On June 4, 2014, Alfa denied Howell's and Jones's insurance claims on the basis that the E & O policies do not cover intentional torts. On July 9, 2014, Alfa voluntarily dismissed its counterclaims against Howell and Jones without prejudice.

B. The State-Court Proceedings

On November 13, 2014, Howell and Jones filed a complaint in the Montgomery Circuit Court asserting claims of breach of contract, bad faith, abuse of process, the tort of outrage, and conspiracy against Alfa. Howell and Jones alleged, among other things, that Alfa breached the E & O policies by refusing to provide them defense and/or indemnity coverage on the counterclaims and that Alfa had filed the counterclaims, which it knew were not covered under the E & O policies, in the arbitration proceedings for the purpose of causing Howell and Jones to incur thousands of dollars in unnecessary legal expenses.

Along with their complaint, which they subsequently amended, Howell and Jones propounded discovery requests, including a request for admissions and a request for production of documents, in which they requested:

"1. Any and all claim files pertaining to the subject matter of [Howell and Jones's] complaint and amended complaint.
"2. Any and all legal department files pertaining to the subject matter of [Howell and Jones's] complaint and amended complaint.
"3. Any and all documents, by whatever name called, pertaining to the subject matter of [Howell and Jones's] complaint and amended complaint including but not limited to electronic mail, memoranda, correspondence, notes, minutes, and records or recordings."

They also submitted a notice of depositions, including a request for the depositions of Angela Cooner, Thomas Treadwell, Tom David, and Charles Elmore, all of whom were legal counsel for Alfa, as well as for "[o]utside legal counsel of [Alfa] who participated in or contributed to the drafting and filing of the counterclaims against [Howell and Jones] as dated June 19, 2013."

On December 9, 2014, Alfa filed a "Response to Requests to Admit" in which it denied most of the requested admissions, but it also repeatedly stated that "[d]iscovery is ongoing and will be supplemented as permitted under the Alabama Rules of Civil Procedure, and any request for additional information not contemplated by Rule 36 will be responded to within the bounds of the Alabama Rules of Civil Procedure."

On May 6, 2015, Howell and Jones filed a motion to compel Alfa to answer and to respond to the first discovery requests filed on November 13, 2014. That same afternoon, Alfa filed its response and objection to the motion to compel discovery, as well as a motion for a protective order. Alfa argued that the matters, documents, and depositions requested by Howell and Jones were all protected by the attorney-client privilege. Alfa also filed on that date a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss, arguing that Howell and Jones's claims were barred by the doctrine of res judicata, having been resolved in arbitration.

On August 13, 2015, the circuit court granted Howell and Jones's motion to compel discovery, giving Alfa three weeks (until September 3, 2015) to respond. The court also denied Alfa's motion to dismiss the complaint.

On August 21, 2015, Alfa filed a petition for a writ of mandamus with this Court seeking an order directing the circuit court to vacate its order denying Alfa's motion to dismiss and to enter an order dismissing the complaint or, alternatively, directing the circuit court to vacate its order compelling discovery. Ex parte Alfa Ins. Corp. (No. 1141255). In its petition, Alfa reiterated its argument that the claims asserted by Howell and Jones in the circuit court should be barred by the doctrine of res judicata because, Alfa said, they were resolved in arbitration. On August 27, 2015, Alfa filed a motion in the circuit court requesting that it extend the time for filing an answer until the same date as discovery responses were due under the motion to compel because the delay would give this Court an opportunity to review Alfa's mandamus petition. The following day the circuit court granted Alfa's motion to extend the time for filing its answer. This Court denied the petition for a writ of mandamus on August 31, 2015, without an opinion.

On September 3, 2015, Alfa filed a "Motion to Compel Arbitration, Dismiss, and Stay Proceedings." The motion to compel was based upon the arbitration provision in the agency agreements. Simultaneously, Alfa filed its answer to the complaint in which it noted that it was "specifically reserving the right to arbitrate these matters pursuant to the requirements of the Independent Exclusive Agency Agreement in effect between the parties in accordance with the Motion to Compel Arbitration filed prior to this initial Answer." On the same date, Alfa also filed an "Objection to Discovery Request and Notice of Service of Discovery Documents" along with a privilege log listing items Alfa identified as protected by the attorney-client privilege and the work-product doctrine. On October 30, 2015, the circuit court denied Alfa's motion to compel arbitration, to dismiss, and to stay the proceedings.

On November 2, 2015, Howell and Jones propounded their first set of interrogatories to Alfa. They also submitted their second set of requests for production of documents to Alfa, in which they sought the following:

"1.... [E]ach document in the custody or control of Alfa that it relied upon when it authorized the filing of counterclaims in arbitration against Chip Jones and Bubba Howell.
"2.... [E]ach piece of correspondence and/or memo in the custody or control of Alfa that touches upon or concerns the counterclaims in arbitration against Chip Jones and Bubba Howell.
"3.... [E]ach document provided to Dennis Bailey[, an attorney with the law firm Rushton, Stakely, Johnston & Garrett, P.A.,] by Alfa as part of the coverage opinion sought from Dennis Bailey regarding the claims for defense and indemnity asserted by Chip Jones and Bubba Howell pursuant to the Alfa policies issued to them.
"4.... [E]ach piece of correspondence between Alfa and Dennis Bailey or the law office of Rushton Stakely concerning the claims for defense and indemnity asserted by Chip Jones and Bubba Howell pursuant to the Alfa policies issued to them. ..."

On November 3, 2015, Howell and Jones filed notices of intent to serve subpoenas on the law firms of Rushton, Stakely, Johnston & Garrett, P.A. ("Rushton Stakely"), and Jackson Lewis P.C. ("Jackson Lewis"). From Rushton Stakely, Howell and Jones sought "[a]ll file materials, correspondence, invoices, memorandum, and any document of any kind that concerns Chip Jones and/or Bubba Howell making a claim for coverage concerning a policy of insurance issued by Alfa. This includes any communication with Alfa, and/or the law office of Jackson Lewis and/or Gray & Associates, LLC." From Jackson Lewis, Howell and Jones similarly sought "[a]ll file materials, correspondence, memorandum, and any document of any kind that concerns Chip Jones and/or Bubba Howell making a claim for coverage concerning a policy of insurance issued by Alfa. This includes any communication with Alfa, and/or Gray & Associates." On November 6, 2015, Alfa filed motions to quash the nonparty subpoenas.

On November 9, 2015, Alfa filed a notice of appeal challenging the denial of its motion to compel arbitration. Alfa Ins. Corp. v. Howell (No. 1150151).

On November 11, 2015, Howell and Jones filed a second motion to compel production of the complete discovery files from Alfa, including the coverage-opinion letters received from Dennis Bailey, an attorney with Rushton Stakely, and all factual information provided to Bailey for coverage review. They also filed motions to compel issuance of the nonparty subpoenas to Rushton Stakely and Jackson Lewis.

On November 12, 2015, Alfa filed in the circuit court a motion to stay all proceedings pending the appeal. On December 8, 2015, the circuit court conducted oral argument on the motion to stay and the motions to compel discovery. On December 9, 2015, Howell and Jones filed a third motion to compel Alfa to provide complete responses to the first set of interrogatories and the second set of requests for production.

On December 18, 2015, the circuit court ordered as follows:

"1. The Motion to Stay is DENIED.
"2. The Second Motion to Compel is GRANTED. Alfa is ordered to produce the coverage opinion letters as well as all correspondence and factual information exchanged after the dates coverage was denied. Alfa is ordered to produce this information within ten (10) days from the date of this order.
"3. The Motion to Compel the issuance of non-party subpoena to Rushton, Stakely, Johnson & Garrett is GRANTED. The subpoena is to be modified to require only the production of the coverage opinion letters, invoices, and any factual information provided to Rushton, Stakely, Johnston & Garrett as part of the coverage review.
4. The Motion to Compel the issuance of non-party subpoena to Jackson Lewis, P.C. is GRANTED. The subpoena is to be modified to require only the production of any information provided by ... Jackson Lewis, P.C. to the Alfa claims department as part of the claim review process for claims of defense and indemnity asserted by Plaintiffs Bubba Howell and Chip Jones. Jackson Lewis is not required to produce any information for the time period after the dates of denial."

(Capitalization in original.) Therefore, the deadline set by the circuit court's order for Alfa to submit the requested discovery was December 28, 2015, the Monday after Christmas.

On December 21, 2015, Alfa filed in this Court an emergency motion to stay the proceedings in the circuit court on the basis that the circuit court did not have jurisdiction to enter its December 18, 2015, order compelling discovery while the arbitration issue was pending on appeal. The following day, Howell and Jones submitted to the circuit court a civil subpoena for production of documents from Rushton Stakely and Jackson Lewis. On December 28, 2015, this Court granted the emergency motion to stay the proceedings.

On September 29, 2017, this Court affirmed, without an opinion, the circuit court's October 30, 2015, order denying arbitration. (No. 1150151) --- So. 3d ---- (Ala. 2017) (table). On October 10, 2017, in the circuit court, Alfa filed a motion to set aside the circuit court's December 18, 2015, order and filed a renewed motion for a protective order. On October 16, 2017, the circuit court denied the motion to set aside its December 18, 2015, order. On October 17, 2017, this Court entered its certificate of judgment in case no. 1150151.

On October 24, 2017, Alfa filed this petition for writ of mandamus and an emergency motion to stay the circuit-court proceedings. On December 8, 2017, this Court granted the emergency motion to stay.

Standard of Review

"Mandamus is an extraordinary remedy and will be granted only where there is '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). This Court will not issue the writ of mandamus where the petitioner has ' "full and adequate relief" ' by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881) )."

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003). The standard of review on a petition for a writ of mandamus is whether the trial court exceeded its discretion in taking or failing to take the challenged action. See Ex parte Par Pharm., Inc., 58 So.3d 767, 773 (Ala. 2010). " ' " 'Mandamus will lie to direct a trial court to vacate a void judgment or order.' " ' " Ex parte LERETA, LLC, 226 So.3d 140, 143 (Ala. 2016) (quoting Ex parte Trust Co. of Virginia, 96 So.3d 67, 69 (Ala. 2012), quoting in turn Ex parte Scrushy, 940 So.2d 290, 294 (Ala. 2006), quoting in turn Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004) ).

Discussion

Alfa asserts that the circuit court's December 18, 2015, order compelling discovery should be set aside because, it argues, the circuit court exceeded its discretion by allowing discovery to proceed on noncollateral matters while its order denying the motion to compel arbitration was pending on appeal to this Court.

The general rule is that the timely filing of a notice of appeal invokes the jurisdiction of the appellate court and divests the trial court of jurisdiction to act except in matters entirely collateral to the appeal. See Harden v. Laney, 118 So.3d 186, 187 (Ala. 2013) ; Altmayer v. Stremmel, 891 So.2d 305, 309 (Ala. 2004) ; and Osborn v. Riley, 331 So.2d 268 (Ala. 1976). See also Committee Comments to Rule 3, Ala. R. App. P. ("Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional."). Orders granting or denying a motion to compel arbitration, however, are not final judgments because they do not conclusively determine all the issues before the court and ascertain and declare the rights of all the parties involved. Faith Props., LLC v. First Commercial Bank, 988 So.2d 485, 490 (Ala. 2008). Nonetheless, a stay of the proceedings in the trial court, with the exception of collateral matters, is effected by the filing of a timely notice of appeal from an order granting or denying a motion to compel arbitration.

The proper procedure for a party seeking a stay of trial-court proceedings while an appeal is pending is set forth in Rule 8(b), Ala. R. App. P., which provides that an appellant seeking a stay of the trial-court proceedings during the pendency of an appeal should first apply to the trial court for a stay if "practicable" and then to the appellate court if necessary. Rule 8 provides:

"In a civil action, application for a stay of judgment or order of a trial court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the trial court. A motion for such relief may be made to the appellate court in which the appeal is pending, but the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon ...."

Alfa filed motions to stay the circuit-court proceedings in both the circuit court and this Court. On November 12, 2015, in the circuit court, Alfa initially filed its motion to stay discovery proceedings pending the appeal. The circuit court heard oral argument on Alfa's motion to stay and Howell and Jones's motions to compel and, on December 18, 2015, entered an order denying the motion to stay and granting the motions to compel. On the following business day, December 21, 2015, Alfa filed an emergency motion in this Court to stay the proceedings, arguing that the discovery matters were not collateral to the appeal. On December 28, 2015, this Court granted the motion and stayed the proceedings in the circuit court.

Because Rule 8(b), Ala. R. App. P., provides that a party should ordinarily file a motion for a stay of proceedings during the pendency of appeal in the first instance to the trial court, it is clear that the circuit court retained partial jurisdiction on December 18, 2015, to rule on the motion to stay the discovery proceedings. With its review of the motion to stay, the circuit court was tasked with deciding whether the motions to compel discovery were collateral to the arbitration issue pending on appeal. See Harden, 118 So.3d at 187 ; Altmayer, 891 So.2d at 309. Because the circuit court deemed that a stay was not warranted, it granted the motions to compel and permitted discovery to proceed. Nonetheless, upon review of the emergency motion filed in case no.

1150151, we stayed the circuit-court proceedings.

In Alabama, the general rule is that discovery proceedings, with the exception of discovery seeking to determine whether a party agreed to participate in arbitration, are stayed during the pendency of an appeal of an arbitration issue. See, e.g., Ex parte Locklear Chrysler JeepDodge, LLC, 251 So. 3d 40 (Ala. 2017) (determining trial court exceeded its discretion by allowing general discovery before resolution of the issue whether the purchasers must arbitrate their claims); Ex parte Kenworth of Birmingham, Inc., 789 So.2d 227 (Ala. 2000) (holding that trial court exceeded its discretion by allowing unrestricted discovery pending a resolution of issue whether buyers were required to arbitrate their claims against the seller); and Ex parte Jim Burke Auto., Inc., 776 So.2d 118 (Ala. 2000) (explaining that, although it was not error for the trial court to allow the parties to conduct discovery prior to arbitration, it was error to fail to limit discovery to the question whether the plaintiffs had agreed to arbitrate their claims).

The discovery sought in Howell and Jones's motions to compel concern the substantive merits of their claims rather than issues collateral to the appeal of the order denying the motion to compel arbitration. Consequently, the circuit court exceeded its discretion by entertaining the motions related to the discovery of attorney-client communications or work product during the pendency of the appeal.

Howell and Jones assert that "any error made at the trial court level in this regard is harmless, and harmless error is not a ground for any appellate reversal or issuance of a writ of mandamus." They do not, however, point to any caselaw as support for the proposition, and we are unaware of any cases that hold that allowing discovery to proceed on noncollateral matters during the pendency of an appeal of the denial of a motion to compel arbitration is subject to a harmless-error analysis.

Howell and Jones also argue that directing the circuit court to vacate its orders addressing noncollateral matters is a waste of judicial economy. They speculate that the circuit court will now enter the same order it entered more than two years ago. This Court, however, notes that the parties appear to have taken steps to resolve and/or to limit the extent of discovery, which may or may not affect the court's decision. For example, Alfa now indicates that it does not plan to assert an "advice-of-counsel" defense. In addition, Howell and Jones suggest that the trial judge should conduct an in camera review of a requested cover-opinion letter, which is listed in the privilege log, before ruling on the matter. Nevertheless, only the circuit court knows how it will rule, and we will not speculate as to how the court will choose to resolve the matter.

In this case, the circuit court clearly exceeded its discretion by entering orders allowing discovery to proceed before this Court resolved the issue whether Howell and Jones must arbitrate their claims against Alfa. Because the circuit court should not have entered an order allowing discovery of noncollateral matters during the pendency of the appeal, its December 18, 2015, order is due to be vacated. It therefore follows that the circuit court's October 16, 2017, order denying Alfa's motion to set aside its December 18, 2015, order granting the motions to compel, which was entered before this Court issued its certificate of judgment, is likewise void. Furthermore, Alfa has established that its only remedy for relief at this stage of the proceedings is by way of a petition for writ of mandamus.

Conclusion

The circuit court exceeded its discretion in entering its December 18, 2015, order granting the motions to compel discovery. We therefore issue the writ of mandamus and direct the circuit court to vacate its orders entered on December 18, 2015, and October 16, 2017.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Parker, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

      This Court recognizes that the appeal of the denial of a motion to stay pending arbitration is reviewed de novo, see Liberty Nat'l Life Ins. Co. v. Douglas, 826 So.2d 806 (Ala. 2002). In this case, however, Alfa requests review of the circuit court's order denying a motion to stay pending appeal of the circuit court's denial of a motion to compel arbitration. Thus, a petition for a writ of mandamus is the appropriate manner in which to seek review.


author: MAIN, Justice.

text:
    Paul A. IRWIN, Jr. v. JEFFERSON COUNTY PERSONNEL BOARD and the City of Trussville
    1161145
    Supreme Court of Alabama.
    April 20, 2018
    Scott T. Morro of Morro Law Center, LLC, Gardendale, for appellant.
    Laura C. Nettles of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellee Jefferson County Personnel Board.
    Richard A. Bearden of Massey, Stotser & Nichols, PC, Birmingham, for appellee City of Trussville.
   MAIN, Justice.

Paul A. Irwin, Jr., appeals from a final judgment of the Jefferson Circuit Court dismissing his claim for injunctive relief against the Jefferson County Personnel Board ("the Board") and the City of Trussville ("Trussville"), a municipality located in Jefferson County. We dismiss the appeal.

I. Facts and Procedural History

This case arises from Trussville's desire to hire a police chief following the retirement of its former police chief. The position of police chief is a classified civil-service position. Under the provisions of § 45-37-121 et seq., Ala. Code 1975 (Local Laws, Jefferson County)("the enabling act"), the Board is vested with the authority to regulate the appointment procedure of classified civil-service positions in Jefferson County. In accordance with rules established by the Board, Trussville, on January 3, 2017, submitted a request to the Board to fill the position of "Police Chief II." In response, on January 3, 2017, the Board provided Trussville with a certified list of 10 eligible candidates.

The certified list of candidates-referred to in the rules of the Board as the "Certificate of Eligibles"-provided to Trussville is generated from an eligibility list. That eligibility list for the position of police chief had been created by the Board in 2014 and consisted of qualified applicants ranked based on the results of a competitive assessment examination. Irwin's name appeared on the certified list.

Trussville interviewed Irwin and two other candidates from the certified list. Trussville did not hire Irwin or any other candidate from the certified list supplied by the Board in January 2017. Instead, Trussville returned the list to the Board and requested that the Board administer a new test for the position of Police Chief II. On January 23, 2017, the Board "expired" the eligibility list. On January 27, 2017, the Board also approved Trussville's request to hire a provisional police chief until such time as a new assessment examination could be administered and a new eligibility list generated.

On March 1, 2017, Irwin sued the Board and Trussville, contending that, once the Board issued to Trussville a certified list of eligible candidates for the position of police chief, Trussville was required to hire a candidate from that list and had no discretion to leave the position unfilled. The complaint sought only injunctive relief. Specifically, it requested an order:

"1. Halting the examination for Chief of Police by the [Board].
"2. Restraining any appointments unless it is the name of a candidate that appeared on the [January 2017] list of eligible police chief candidates.
"3. Restraining the [Board and Trussville] from any other actions in this case that are in violation of the Enabling Act.
"4. Directing the City of Trussville to make an appointment pursuant to the Enabling Act."

Irwin's complaint was accompanied by a motion for a temporary restraining order ("TRO"). On March 9, 2017, Irwin filed a motion for a preliminary injunction. On March 22, 2017, the trial court denied Irwin's motion for a TRO and set the motion for a preliminary injunction for an evidentiary hearing.

Before the hearing on the motion for a preliminary injunction, Irwin accepted the job of police chief with the City of Pell City. Upon notice of Irwin's acceptance of a police-chief position with another municipality, the trial court invited a written response from Irwin as to whether his action against the Board and Trussville had been rendered moot by his accepting a police-chief position with another municipality. Irwin responded that the action had not been rendered moot because, he said, he remained a qualified candidate for the Trussville police-chief job and that, notwithstanding his acceptance of the Pell City police-chief job, he still wanted to be the police chief for Trussville. On April 19, 2017, the trial court entered an order in which it concluded that Irwin's action was not moot but that "the relief he would hereafter pursue would be in the nature of money damages." The trial court denied Irwin's motion for a preliminary injunction and continued the evidentiary hearing.

On April 20, 2017, Irwin moved the trial court to reconsider its order denying the preliminary injunction. In that motion, Irwin explained that his desire to be the Trussville police chief was born of his family's strong ties to the Trussville community and that money damages would not adequately compensate him for the loss of the opportunity to serve as Trussville's police chief. The trial court did not immediately rule on Irwin's motion to reconsider.

On May 22, 2017, Trussville filed a motion to dismiss Irwin's action or, in the alternative, for a summary judgment. On May 31, 2017, the Board also filed a motion to dismiss or, in the alternative, for a summary judgment.

On June 2, 2017, the trial court conducted a hearing on Irwin's motion to reconsider the denial of his preliminary-injunction motion and the motions to dismiss filed by the Board and Trussville.

On July 10, 2017, Irwin filed a notice in the trial court indicating that the Board had administered a new police-chief examination; that he had taken the new examination; and that he had achieved the highest possible score. The Board responded by stating that "[t]he appearance of [Irwin]'s name on any Certified List requested by the City of Trussville once the Eligibility List is completed does not create an obligation on the part of the City of Trussville to hire [Irwin]."

On August 9, 2017, the trial court entered an order granting the Board's and Trussville's motions to dismiss. The order explained:

"Pending are motions to dismiss filed by defendants, the [Board] and [Trussville]. [Irwin] opposes these motions. Because the court regards the pending motions as motions to dismiss, the allegations raised in [Irwin's] filings are viewed as establishing the material facts at issue. The question is whether, based on the allegations made by [Irwin], the [Board and Trussville] are entitled to the dismissal of this action as a matter of law.
"In his complaint and motion for temporary restraining order, [Irwin] alleges that the [Board] provided to [Trussville] a certified list of eligible police chief candidates on January 3, 2017, but [Trussville] elected not to make an appointment from that list, causing the list to expire by the end of January. In his motion for preliminary injunction, [Irwin] further alleges that he was included on that list and was interviewed for the Trussville vacancy. The gravamen of [Irwin's] action is that by failing to make an appointment from the January eligibles list, the City of Trussville has violated his legal rights.
"Rule 11.2(b) of The Rules and Regulations of the Personnel Board of Jefferson County, provides an appointing authority 'may make an appointment from the Certificate of Eligibles...' (Emphasis added). Under Rule 11.2(c), once a Certificate of Eligibles is issued, an Appointing Authority has ten business days to either make an appointment or give written notification that the request has been withdrawn. Rule 11.2(c) goes on to provide, however, that '[i]f no appointment is made within thirty (30) days of the date of the Certificate of Eligibles, then the Certificate of Eligibles shall expire unless extended upon written request of the Appointing Authority, approved by the Director.' [The Board and Trussville] argue that this is what happened here. [Irwin] does not dispute that the events of January were in keeping with the [Board]'s Rules and Regulations.
"[Irwin] instead argues that Rule 11.2 violates the Enabling Act of the [Board]. Section 18 of the Enabling Act provides among other things the following:
" 'Whenever a vacancy in an existing position is to be filled by appointment, the appointing authority shall submit to the director a statement of the title of the position, and if requested by the director to do so, the duties of the position, and desired qualifications of the person to be appointed and a request that the Director certify the Appointing Authority the names of persons eligible for appointment to the position. The Director shall thereupon certify to the Appointing Authority the ranking eligibles, correlating to the 10 highest test scores from the appropriate register .... Within 10 days after the names are certified the Appointing Authority shall appoint one of those whose names are certified to each vacancy which he or she is to fill.'
"[§ 45-37-121.15, Ala. Code 1975 ] (Emphasis added.) Under Rule 11.2, an Appointing Authority 'may' make an appointment from the list of eligibles provided to it, while under the Enabling Act, an appointing authority 'shall'-and [Irwin] argues, must-make such a selection.
"However, other language in Section 18 suggests that an appointing authority does not bear such an unconditional obligation. Specifically, the section provides the consequences if an appointing authority fails to make a selection:
" 'In the event an Appointing Authority fails or refuses to fill a vacancy in an existing position from a certified list of eligibles the Director may refuse to certify the payroll, voucher or account of any ineligible person found to be performing the duties of the position.'
"If an appointing authority is unconditionally obligated to select from a certified list, there is no reason to have such language.
"The court finally notes the following language of Section 18, which expressly provides to the Personnel Board the authority to proscribe rules governing this process:
" 'The Personnel Board shall adopt appropriate rules and regulations governing all appointments to vacancies in the classified service to the end that such rules shall comply with the law and serve the public interest.'
"There are numerous decisions from our appellate courts making clear that an administrative agency's interpretation of its powers and duties is entitled to judicial deference, so long as that interpretation is reasonable and in keeping with the legislation establishing that agency. Close review of Rule 11 of The Rules and Regulations of the Personnel Board of Jefferson County leads this court to conclude that the process set forth therein is a reasonable construction of the Enabling Act and in fact is necessary to fill in the gaps in the appointment process left unaddressed by the Enabling Act. This court therefore cannot conclude that the [Board and Trussville] stand in violation of any law by failing to make an appointment from the January 2017 list and letting the list expire.
"Accordingly, [Irwin] has not alleged any facts that can be interpreted as giving rise to any actionable claim against [the Board and Trussville]. The pending motions to dismiss are therefore GRANTED, and this action is dismissed with prejudice, cost taxed as paid."

The trial court also entered a separate order denying Irwin's motion to reconsider his motion for a preliminary injunction.

Irwin filed a postjudgment motion, which was denied on August 30, 2017. Irwin filed his notice of appeal on September 14, 2017. Irwin did not seek from either the trial court or this court an injunction, under Rule 8, Ala. R. App. P., to preserve the status quo pending this appeal, and, as discussed, infra, Trussville has appointed a permanent police chief.

II. Analysis

On appeal, Irwin argues that the trial court incorrectly construed the language of the enabling act. Irwin contends that, under the plain language of the enabling act, once Trussville notified the Board that it intended to fill the position of police chief and received the January 2017 certified list of eligible candidates from the Board, it was required to appoint one of the individuals named on the certified list to the position of police chief. Before we turn to the merits of Irwin's argument, however, there are threshold matters that must first be addressed.

First, we consider the timeliness of Irwin's appeal. Trussville and the Board contend that this appeal is due to be dismissed because, they argue, it is untimely. To this end, they note that Irwin demanded only injunctive relief. Trussville and the Board contend that, once the trial court denied Irwin's motions for a TRO and a preliminary injunction, all of Irwin's claims were adjudicated. Because Irwin's motion for a preliminary injunction was denied on April 19, 2017, Trussville and the Board argue that Irwin's September 14, 2017, notice of appeal was untimely. We disagree.

As the names of the relief sought suggest, orders of a trial court granting or denying a temporary restraining order or a preliminary injunction are interlocutory in nature. See Momar, Inc. v. Schneider, 823 So.2d 701, 704 (Ala. Civ. App. 2001) ; Watchous v. North Creek Baptist Church, 706 So.2d 1259 (Ala. Civ. App. 1997). Indeed, the purpose of temporary and preliminary injunctive relief is to maintain the status quo pending the resolution of the action on its merits. Jacobs Broad. Grp., Inc. v. Jeff Beck Broad. Grp., LLC, 160 So.3d 345, 349 n. 3 (Ala. Civ. App. 2014). Irwin, therefore, necessarily sought a final judgment on the merits and ultimately, if successful, final permanent injunctive relief. It is also clear that the trial court's orders denying the TRO and the preliminary injunction did not touch on the merits of the case and were not intended as final judgments. Certainly, the trial court could have reconsidered its decision to deny the preliminary injunction at any time before the entry of the final judgment. Indeed, the trial court withheld ruling on Irwin's motion to reconsider the preliminary injunction until it had fully considered the motions to dismiss.

To be sure, Irwin could have directly appealed the denial of his motions for temporary or preliminary injunctive relief under the provisions of Rule 4(a)(1), Ala. R. App. P., but the fact that he did not does not render his appeal from the trial court's final judgment untimely. Here, the final judgment was entered on August 9, 2017; Irwin's postjudgment motion was denied on August 30, 2017; and his notice of appeal from the final judgment was timely filed on September 14, 2017.

Although Irwin's appeal is "timely" in the technical sense, we must nevertheless determine whether, as a practical matter, it has come too late. Indeed, it appears that events occurring since the filing of this appeal have rendered Irwin's claims moot. In its brief, Trussville informs this Court that, following the entry of the final judgment in the trial court, it appointed a permanent police chief on October 10, 2017. It appears that the person appointed as the new permanent police chief is the former provisional police chief, an individual who, according to the record, was not on the January 2017 certified list, but who was, according to Trussville, on a subsequent certified list of eligible candidates provided by the Board. In other words, Trussville has filled the job sought by Irwin and in a manner Irwin sought to prevent.

As to mootness, this Court has stated:

" ' "A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned." ' Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006) (quoting American Fed'n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958) ). 'The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties.' Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) ). 'A case becomes moot if at any stage there ceases to be an actual controversy between the parties.' Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) ).
" 'There must be a bona fide existing controversy of a justiciable character to confer upon the court jurisdiction to grant declaratory relief under the declaratory judgment statutes, and if there was no justiciable controversy existing when the suit was commenced the trial court had no jurisdiction.' State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So.2d 106, 110 (1974).... 'A moot case lacks justiciability.' Crawford, 153 S.W.3d at 501. Thus, '[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.' Case, 939 So.2d at 884 (citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So.2d 326, 330 (Ala. 2004) )."

Chapman v. Gooden, 974 So.2d 972, 983-84 (Ala. 2007). Furthermore, we have stated:

"The test, when a motion is made to dismiss an appeal because the right to an injunction, if it ever existed, has become moot, is whether the event which occurred pending appeal makes a determination of the appeal unnecessary, or renders it impossible for the appellate court to grant effectual relief."

Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963).

In this case, Irwin has sought only injunctive relief. The primary purpose of injunctive relief, however, is to prevent future injury. See Williams v. Wert, 259 Ala. 557, 559, 67 So.2d 830, 831 (1953) ("The court cannot enjoin an act which has occurred."); 43A C.J.S. Injunctions 17 (2014) ("Equity will not usually issue an injunction when the act complained of has been committed and the injury has already occurred."). The specific actions Irwin sought to enjoin-the administration of a new examination for the position of Trussville's police chief and the appointment of a candidate to the position of police chief who was not on the January 2017 certified list-have now occurred. Accordingly, it is now impossible to provide Irwin the relief he requests. See Woods v. SunTrust Bank, 81 So.3d 357, 363 (Ala. Civ. App. 2011) (holding that a request for injunctive relief to prevent a foreclosure was moot once the foreclosure had taken place).

Furthermore, we note that Irwin has made no response to the mootness argument in this Court, and we are not inclined to make and address legal arguments as to mootness on his behalf. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) ("[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party ....").

Accordingly, we conclude that Irwin's claims for injunctive relief have become moot. Therefore, we are compelled to dismiss the appeal. See South Alabama Gas Dist. v. Knight, 138 So.3d 971, 976 (Ala. 2013).

III. Conclusion

Irwin's claims for injunctive relief have become moot. " '[T]his Court will not consider the merits of a claim that is moot.' " Knight, 138 So.3d at 978 (quoting Town of Elmore v. Town of Coosada, 957 So.2d 1096, 1100 (Ala. 2006) ). Thus, the appeal is dismissed.

APPEAL DISMISSED.

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

      To the extent that Irwin seeks direct review of the trial court's orders denying his motions for a TRO or preliminary injunction, his appeal is untimely under Rule 4(a)(1), Ala. R. App. P. Watchous, 706 So.2d at 1259.

      Even if the trial court could, on remand, restore the prejudgment status quo by issuance of a permanent mandatory injunction, such an injunction would amount to a collateral attack on the appointment of the currently serving police chief, who is not a party to this action. Under the circumstances presented to us, we are not sure this would be an appropriate exercise of the court's equitable powers. See 63C Am. Jur. 2d Public Officers & Employees § 472 (2009). At any rate, Irwin has not requested such relief.


author: THOMAS, Judge.

text:
    B.J.C. and E.T.A. v. BLOUNT COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160489
    Court of Civil Appeals of Alabama.
    November 3, 2017 Certiorari Denied April 13, 2018
    Alabama Supreme Court 1170139
    Jonathan E. Lyerly, Birmingham; and Charles Cleveland of Cleveland & Cleveland, P.C., Birmingham, for appellants.
    Sharon E. Ficquette, gen. counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for appellee.
    On Application for Rehearing
   THOMAS, Judge.

This court's opinion of September 8, 2017, is withdrawn, and the following is substituted therefor.

B.J.C., the mother, and E.T.A., the father, are the parents of A.S.A-C. ("the child"). The parents filed a notice of appeal from a judgment of the Blount Circuit Court ("the circuit court"), denying a petition for the writ of habeas corpus filed by the parents, who sought the return of custody of the child. The resolution of this appeal requires a recitation of the procedural history of the actions regarding the custody of the child that were filed in the circuit court and in the Blount Juvenile Court ("the juvenile court").

The Blount County Department of Human Resources ("DHR") became involved with the family after receiving a report that the parents were abusing and distributing controlled substances. DHR filed a dependency petition in the juvenile court. The record contains a March 31, 2016, order in case number JU-16-78.01, in which the juvenile court awarded temporary custody of the child to DHR. Nearly one year later, the parents filed a petition for a writ of habeas corpus in the circuit court, which, as amended, reads, in pertinent part:

"All of the proceedings in [the dependency action in the juvenile court] involving [the child] are void and to no effect. [The child] was a resident of Tennessee at the time [DHR filed the dependency] petition. Neither the Blount County Department of Human Resources nor the Juvenile Court of Blount County, Alabama[,] has any jurisdiction over [the child]. He has never been a resident of Alabama. [Section] 12-15-114, Ala. Code (1975)[,] does not provide such jurisdiction. Subsection (a) applies only to children who are residents or are present in the state at the time the petition is filed. [The child] is not subject to jurisdiction pursuant to the provisions of subsection (c)(1)."

The record contains a transcript of a hearing conducted by the circuit court on March 21, 2017, after which the circuit court entered a judgment denying the parent's petition for a writ of habeas corpus. The parents filed a notice of appeal of the judgment of the circuit court. "Although none of the parties has addressed the issue, this court must determine whether it has jurisdiction over this appeal. Jurisdictional matters are of such importance that a court may take notice of them ex mero motu. Nichols v. Ingram Plumbing, 710 So.2d 454 (Ala. Civ. App. 1998)." McMurphy v. East BayClothiers, 892 So.2d 395, 397 (Ala. Civ. App. 2004).

In R.D.P. v. State Department of Youth Services, 655 So.2d 1029 (Ala. Civ. App. 1995), the juvenile court in that case had entered an order adjudicating R.D.P. dependent, making certain recommendations, and awarding custody of R.D.P. to the Alabama Department of Youth Services ("Youth Services"). 655 So.2d at 1030. As R.D.P. neared the age of majority, Youth Services filed a petition in the juvenile court seeking another placement for R.D.P.; the juvenile court entered a order maintaining the status quo. Id. Rather than filing a notice of appeal, R.D.P. filed a petition for the writ of habeas corpus in the Houston Circuit Court, which dismissed the action because it concluded that, pursuant to Rule 28, Ala. R. Juv. P., it lacked subject-matter jurisdiction. Id. R.D.P. filed a notice of appeal of the Houston Circuit Court's judgment to this court, contending that the Houston Circuit Court had authority to grant his petition. Id. at 1031. We affirmed the order of the Houston Circuit Court and explained:

"This court, in Wright v. Montgomery County Dep't of Pensions & Security, 423 So.2d 256 (Ala. Civ. App. 1982), determined that Rule 28, Ala. R. Juv. P., supersedes [former] § 12-15-120[, Ala. Code 1975 (amended and renumbered as § 12-15-601, Ala. Code 1975 ),] and that it now governs appeals from the juvenile court. Rule 28(A)(1) provides: 'Appeals from final orders, judgments or decrees of the juvenile court shall be to the appropriate appellate court....'
"In a habeas corpus case concerning alleged procedural violations of dependent children proceedings in juvenile court, this court stated, 'All such issues could and should have been raised by appeal, not by habeas corpus .... Habeas corpus may not be utilized as a substitute for an appeal.' Morgan v. Black, 402 So.2d 1040, 1041 (Ala. Civ. App. 1981).
"R.D.P. should have appealed the order of the juvenile court to this court pursuant to Rule 28, or petitioned the juvenile court for a writ of habeas corpus. For the foregoing reasons, we affirm the circuit court's dismissal of R.D.P.'s petition for a writ of habeas corpus."

Id. at 1031.

The parents in this case filed a petition for the writ of habeas corpus in the circuit court, alleging a procedural violation in the juvenile court. Although the parents did not file a timely appeal to this court regarding the juvenile court's March 31, 2016, order awarding temporary custody of the child to DHR, the question whether the juvenile court's order was void could have been raised in a Rule 60(b)(4), Ala. R. Civ. P., motion filed in the juvenile court. Like the circuit court in R.D.P., the circuit court in this case should have dismissed the petition for lack of subject-matter jurisdiction. Cf. R.D.P., supra. Because a judgment entered without subject-matter jurisdiction is void, Ex parte Punturo, 928 So.2d 1030, 1034 (Ala. 2002) ; G.W. v. Dale Cty. Dep't of Human Res., 939 So.2d 931, 934 (Ala. Civ. App. 2006), and because a void judgment will not support an appeal, S.B.U. v. D.G.B., 913 So.2d 452, 456 (Ala. Civ. App. 2005), we dismiss the appeal with instructions to the circuit court to set aside its void judgment. See K.R. v. D.H., 988 So.2d 1050, 1052 (Ala. Civ. App. 2008).

APPLICATION OVERRULED; OPINION OF SEPTEMBER 8, 2017, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.

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

      The facts are gleaned from both the record in this appeal and the materials provided in relation to the parents' petition for the writ of mandamus in a case involving the same parties. See Ex parte B.J.C., 248 So.3d 988 (Ala Civ. App. 2017). "It is axiomatic that courts judicially know their own records." Lovejoy v. State, 32 Ala. App. 110, 112, 22 So.2d 532, 533 (1945).

      The parents did not file a notice of appeal of the juvenile court's March 31, 2016, order.
      "[A] 'temporary custody award' or a 'temporary order' as to custody is a 'final' custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. [Hodge v. Steinwinder,] 919 So.2d [1179,] 1182-83 [ (Ala. Civ. App. 2005) ]. Such an award is not a pendente lite award. Id."
      T.J.H. v. S.N.F., 960 So.2d 669, 672 (Ala. Civ. App. 2006).