author: SELLERS, Justice.

text:
    DEKALB-CHEROKEE COUNTIES GAS DISTRICT v. Timothy RAUGHTON
    1160838
    Supreme Court of Alabama.
    February 23, 2018
    H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for appellant.
    W. Whitney Seals of Cochrun & Seals, LLC, Birmingham, for appellee.
   SELLERS, Justice.

In this personal-injury action, the DeKalb-Cherokee Counties Gas District ("DC Gas") appeals from a judgment of the DeKalb Circuit Court denying DC Gas's renewed motion for a judgment as a matter of law ("JML") or, in the alternative, for a new trial. We reverse the trial court's judgment and render a judgment for DC Gas.

On October 10, 2011, the plaintiff, Timothy Raughton, an employee of the City of Fort Payne, was working at the city landfill. One of his duties on that day was to tell users of the landfill where to dump their refuse. On that same day, Neal Ridgeway, in his capacity as an employee of DC Gas, drove a dump truck to the landfill. The bed of the dump truck contained bricks and concrete blocks that had been collected from a site on which DC Gas planned to have constructed an office building.

While Ridgeway dumped the contents of the truck at the landfill, Raughton stood next to the truck. He testified that he was standing there because the truck shielded him from the wind, which had been blowing dust in his eyes. At some point during the dumping process, the debris in the bed of the truck became lodged and would not fall out. In an effort to dump the remaining debris, Ridgeway performed a maneuver, which the evidence in this case indicates is commonly performed by drivers of dump trucks-he put the truck into gear and released the clutch, causing the truck to shake and to move forward slightly. As he was performing this clutch-release maneuver, the side wall of the truck bed fell from the truck, striking and injuring Raughton. There is no evidence in this case indicating that the clutch-release maneuver violated any formal safety standards.

Raughton sued DC Gas, alleging negligence and wantonness. The trial court entered a summary judgment in favor of DC Gas on Raughton's wantonness claim, but his negligence claim proceeded to trial.

When asked during the trial how the side wall was attached to the truck, Ridgeway testified that it "sits down in three or four standards on the side, and it's got a pin-It's got a pin at the front. I won't really say a pin, but it's got a way it attaches at the very front up there." There is no other testimony or evidence as to how the side wall was attached to the truck. There also is no testimony or evidence indicating exactly how the side wall became detached from the truck.

The jury rendered a verdict in favor of Raughton in the amount of $100,000. The trial court entered a judgment on that verdict and denied DC Gas's renewed motion for a JML. DC Gas appealed.

" 'The standard of review applicable to a ruling on a motion for [a JML] is identical to the standard used by the trial court in granting or denying [that motion]. Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.
" '....
" '... In ruling on a motion for a [JML], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." '
" American Nat'l Fire Ins. Co. v. Hughes, 624 So.2d 1362, 1366-67 (Ala. 1993). (Citations omitted.)."

Acceptance Ins. Co. v. Brown, 832 So.2d 1, 12 (Ala. 2001). Questions of law are reviewed de novo. Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala. 2006).

During the trial, Raughton proposed two theories of liability. He argued that Ridgeway, DC Gas's employee, acted negligently in choosing to perform the clutch-release maneuver while Raughton was standing next to the truck and that DC Gas was negligent in failing to have the dump truck properly inspected.

DC Gas argues on appeal that it cannot be held liable for negligence based on Ridgeway's performing the clutch-release maneuver because, DC Gas asserts, no evidence was presented indicating that it was foreseeable that the maneuver could result in the side wall of the truck bed becoming detached and falling from the truck. DC Gas points to Butler v. AAA Warehousing & Moving Co., 686 So.2d 291 (Ala. Civ. App. 1996). In that case, the defendant had assembled a multi-level reviewing stand, which was then made available for people to stand on while watching a Mardi Gras parade in Mobile. The plaintiff sued the defendant after she was injured when her foot became caught in an open space between two levels of the stand. The trial court in Butler granted the defendant's summary-judgment motion. On appeal, the Court of Civil Appeals noted that "[n]egligence has been defined as the 'failure to do what a reasonably prudent person would have done under the same or similar circumstances.' " 686 So.2d at 293 (quoting Elba Wood Prods., Inc. v. Brackin, 356 So.2d 119, 122 (Ala. 1978) ). The court concluded that the plaintiff had not presented substantial evidence indicating that the defendant reasonably should have foreseen that someone's foot could get caught in the open space between the levels of the stand. To the contrary, people responsible for erecting and inspecting the stand testified that they were unaware of any reason to consider the uncovered space between the levels a safety hazard; a forensic engineer testified that the uncovered space did not violate any safety standards; and there had been no similar accidents involving the stand in the previous 25 years. Thus, the Court of Civil Appeals concluded, the evidence established that the defendant "did not breach its standard of care in erecting the reviewing stand and in leaving the spaces open." 686 So.2d at 294. The court affirmed the summary judgment for the defendant.

In Motor Terminal & Transportation Co. v. Millican, 244 Ala. 39, 12 So.2d 96 (1943), the plaintiff sued the employer of a truck driver after a tire and rim detached from the truck while it was in operation and struck the plaintiff. This Court concluded that the defendant could be held liable for negligence based on evidence indicating that such an accident was foreseeable because the defendant's agents knew the truck was in poor condition and knew that its wheels had become detached on prior occasions. In Clayton v. Fargason, 730 So.2d 160 (Ala. 1999), the Court held that a defendant driver's belief that children had been struck by vehicles in the area in which he was driving was relevant to the plaintiff's negligence claim because such a belief "would cause [the defendant] to have knowledge of potential hazards that he should consider." 730 So.2d at 163. See also Pritchett, 938 So.2d at 937 (noting that the key factor in determining whether a duty exists is whether the injury was foreseeable by the defendant); Alabama Power Co. v. Henderson, 342 So.2d 323, 326 (Ala. 1976) ("The ultimate test of a defendant's duty to use due care is the foreseeability of the harm which would result if due care was not exercised."); and City of Birmingham v. Latham, 230 Ala. 601, 606, 162 So. 675, 678 (1935) ("[W]hile a person is expected to anticipate and guard against all reasonable consequences, yet he is not expected to anticipate and guard against that which no reasonable man would expect to occur.").

The testimony at trial indicates that the clutch-release maneuver performed by Ridgeway is a common method of dislodging and dumping the contents of dump trucks. There was no testimony or other evidence indicating that performing the maneuver violated any formal safety standards. Terry Tinsley, who was Ridgeway's supervisor at the time the accident occurred, testified that he was unaware of any other instance during the 29 years he had worked for DC Gas in which the side wall of a dump truck had loosened or fallen off. Likewise, Ridgeway, who, at the time of the accident, had been driving dump trucks for 15 years, answered in the negative when asked if he had "ever known in [his] experience with DC Gas [the] side wall to fall off" or "get loose." Raughton himself testified that he had never seen a side wall detach from a dump truck when the clutch-release maneuver was being performed. Indeed, as DC Gas points out, Raughton chose to stand next to the dump truck while Ridgeway unloaded it, further indicating the remoteness of any risk that the side wall would fall onto him. We agree with DC Gas that, because there is no evidence indicating that it was foreseeable that the side wall of the dump truck could become detached as a result of performing the clutch-release maneuver, DC Gas cannot be held liable for negligence based on Ridgeway's performing that maneuver.

DC Gas had purchased the dump truck new in 2001. Raughton argued at trial that DC Gas could be held liable based on its alleged failure to properly inspect the bed of the dump truck in the 10 years preceding the accident. In Motor Terminal & Transportation Co., supra, a case that involved an accident in which a tire and rim on a truck became detached and struck the plaintiff, this Court stated:

"The principle is well established that it is negligence to use an instrumentality which the actor knows or should know to be so defective that its use involves an unreasonable risk of harm to others. If the use of the instrumentality threatens serious danger to others unless it is in good condition, there is a duty to take reasonable care to ascertain its condition by inspection. Tannahill v. Depositors' Oil & Gas Co., 110 Kan. 254, 203 P. 909 [ (1922) ] ; Petersen et al. v. Seattle Automobile Co., 149 Wash. 648, 271 P. 1001 [ (1928) ] ; Sears v. Interurban Transp. Co., 14 La.App. 343, 125 So. 748 [ (1930) ] ; Holt v. Eastern Motor Co., 65 Ga.App. 502, 15 S.E.2d 895 [ (1941) ] ;
Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 [ (1939) ].
"In Huddy Automobile Law, Vol. 3-4, p. 127 et seq., the following rule, as applied to motor vehicles, has been laid down in this language:
" 'Generally speaking, it is the duty of one operating a motor vehicle on the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to its occupants or to other travelers.
" 'To this end, the owner or operator of a motor vehicle must exercise reasonable care in the inspection of the machine, and is chargeable with notice of everything that such inspection would disclose. This rule applies where the operator is the owner of the vehicle or rents it from another, or permits another to use it, or lets it to another for hire. But in the absence of anything to show that the appliances were defective, the owner or driver is not required to inspect them before using the car or permitting it to be used.' "

244 Ala. at 43, 12 So.2d at 99. The evidence in Motor Terminal & Transportation Co. indicated that the "threads which held the tire and rim on the wheel were stripped and were old, rusty and worn." 244 Ala. at 42, 12 So.2d at 98. As previously noted, the evidence in that case also indicated that the defendant's agents had knowledge that the truck was in poor condition and that its wheels had fallen off in the past.

In the present case, although Tinsley answered in the affirmative when asked during the trial if Ridgeway "was responsible for making sure the side walls [and] the tailgate were safely secured to the truck," he later testified that Ridgeway's daily inspection consisted of a "walk-around" procedure that is taught to commercial driver's license applicants, during which Ridgeway would visually check fluid levels and components such as tires, hitches, and lights. Ridgeway testified that he would also visually check the side walls. The evidence indicates that Ridgeway had never physically checked for loose side walls and that DC Gas had never had the truck bed professionally inspected.

Unlike the circumstances in Motor Terminal & Transportation Co., however, there was no evidence indicating that the side wall of the dump truck had become detached in the past or that DC Gas's agents knew that it might become detached. Moreover, no evidence was presented clearly showing how the side wall was attached to the truck or showing exactly why and how it had become detached. Thus, there was no evidence presented indicating that an inspection would have revealed that it might become detached and, therefore, that an inspection would have prevented the accident. See Wilbanks v. United Refractories, Inc., 112 So.3d 472, 475 (Ala. 2012) (holding that the supplier of a welder was entitled to a summary judgment in a negligent-inspection action premised on the explosion of the welder, in part because "there was no evidence indicating that an inspection of [a particular component of the welder] would have prevented the explosion"). Accordingly, the Court concludes that DC Gas cannot be held liable based on its alleged failure to properly inspect the truck.

Based on the foregoing, we reverse the trial court's judgment denying DC Gas's renewed motion for a JML, and we render a judgment in favor of DC Gas.

REVERSED AND JUDGMENT RENDERED.

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

Shaw, J., concurs in the result.

      In his appellee's brief, Raughton suggests that the side wall may have fallen from the dump truck because the debris in the bed of the truck "had unsafely shifted." He does not point to any portion of the record in support of that suggestion, and this Court was unable to locate any trial testimony regarding the alleged unsafe condition of the load in the dump truck.

      The Court notes that the result in this appeal is the same regardless of whether the Court analyzes DC Gas's liability in terms of whether Ridgeway owed Raughton a specific duty to refrain from performing the clutch-release maneuver or whether there was a lack of substantial evidence indicating that Ridgeway breached a more general duty to operate the dump truck in a safe manner.

      The record suggests that, pursuant to Rule 30(b)(6), Ala. R. Civ. P., Tinsley testified as DC Gas's representative during deposition. By the time he testified at trial, however, he was no longer employed by DC Gas.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EX PARTE CITY OF MUSCLE SHOALS
    (In re: Reginald M. Harden v. City of Muscle Shoals)
    1160396
    Supreme Court of Alabama.
    February 23, 2018
    David J. Canupp and Brad A. Chynoweth of Lanier Ford Shaver & Payne, P.C., Huntsville, for petitioner.
    Joel Hamner of McCutcheon & Hamner, P.C., Florence, for respondent.
   PER CURIAM.

The City of Muscle Shoals ("the City") petitions for a writ of mandamus directing the Colbert Circuit Court to vacate its denial of the City's motion for a summary judgment as to claims asserted against it by Reginald M. Harden stemming from injuries Harden sustained from falling through a grate at Gattman Park, a City-owned park. We grant the petition.

I. Facts

Rusty Wheeles, director of the City's Department of Parks and Recreation ("the Department"), testified by an affidavit attached to the City's motion for a summary judgment that "[t]he City owns and operates Gattman Park. Among the facilities at Gattman Park are five baseball fields with lights mounted on poles." In April 2014, the City accepted a bid from Big River Electric, Inc. ("Big River"), to replace the lights on the poles at the baseball fields at Gattman Park. Big River began replacement of the baseball-field lights in early May 2014. Wheeles testified that in order to perform the job, Big River arranged with the City to have access to a maintenance-shop area in Gattman Park where Big River could store the lights that were going to be installed on the poles at each baseball field. Wheeles also explained:

"The maintenance area is a fenced-off area consisting of a shop with several garages, an office, and a gravel lot with various items of equipment. At the time of [Harden's] accident there was a natural drain covered by a grate located near a group of trees in the gravel parking lot of the maintenance area at Gattman Park. The drain is surrounded by a concrete rim. A metal grate consisting of steel rebar welded together laid inside the concrete rim and covered the drain."

In 2014, Harden was working as an electrician's helper for Big River. On May 7, 2014, Harden was helping John Blair White, foreman for Big River's job of installing the baseball-field lights. White testified by affidavit that, during the afternoon of May 7, he and Harden

"were inside the maintenance shop area on the gravel lot. The lights that were to be installed were contained in boxes and were lined up in rows in the gravel lot near some trees. [Harden] and I had a list of numbers that corresponded to numbers contained on the boxes with the lights. Our job was to select the boxes of lights with the appropriate numbers, load the lights onto the trailer, and take them to the relevant baseball field.
"[Harden] and I were walking down the aisles between the rows of boxes on opposite sides of the boxes when I bent over to uncrate a light. When I looked over in [Harden's] area, he was gone. I walked over to where I last saw [Harden] in the opposite aisle, and I saw him pulling himself up out of a drain hole. I saw that [Harden] had fallen through a metal grate that had been covered by leaves and debris."

For his part, Harden in his deposition stated that before lunch on the day he fell through the grate he and White had made three or four trips delivering light boxes to their specific ball-field locations and that no one noticed the grate during those trips because it was covered with leaves. Harden described the accident as follows:

"A. I was walking down the right side of the aisle [between the rows of boxes]. [White] was walking down the left like we were doing helping each other pick [the box] up from both sides, and all of a sudden, I fell. I was just gone. I was-you know, I've been through OSHA's safety training, and I know how to look for-look for danger on the job. And I was looking for danger, and you could not see that. You could not see that drain.
"Q. So when you say you fell, you fell-are you saying that essentially the grate when you stepped on it broke underneath you?
"A. When I stepped on it, I went straight through.
"Q. Okay. And you hadn't seen it before you stepped on it?
"A. No.
"Q. And as far as you know, nobody working with you saw it before you stepped on it?
"A. No."

Jake Mackey, who had served as the maintenance supervisor for the Department since 1995 and who had worked for the Department since 1975, testified by affidavit that the drain in question "is surrounded by a concrete rim. A metal grate consisting of steel rebar welded together laid inside the concrete rim and covered the drain. This metal grate has been in place for approximately 25 years." Mackey also stated that,

"[i]n the years prior to [Harden's] accident, City employees drove equipment through the gravel lot in the area of the metal grate at least three times per week. In the days prior to the beginning of Big River's job, City employees accessed the maintenance area in order to move equipment out of the way. At no point during this time did any City employee notice anything wrong with the metal grate."

Quinton Bailey, the assistant maintenance supervisor for the Department since 2013 who had also worked for the Department as a laborer from 1995 until his promotion to assistant maintenance supervisor, testified by affidavit that,

"[w]hen I was a laborer from 1995 to 2013, I accessed the gravel lot of the maintenance area on a near daily basis. At no point during that time did I notice anything unsafe about the metal grate. At no point during that time did I become aware of anyone else reporting anything unsafe about the grate."

Wheeles stated in his affidavit that,

"[p]rior to [Harden's] accident, there had been no accidents or injuries resulting from this metal grate. Prior to [Harden's] accident, the City had never received any complaints about the metal grate or any reports that the metal grate was unsafe. Prior to [Harden's] accident, the City had no knowledge of any potential hazard presented by the grate."

Both Mackey and Bailey confirmed in their affidavits that they had "received no reports or complaints about the metal grate prior to [Harden's] accident."

On March 27, 2015, Harden sued the City and multiple fictitiously named parties in the Colbert Circuit Court, alleging that the City was negligent in failing to safeguard Harden from the defective grate and that, as a proximate result of the City's negligence, he was injured. The parties commenced discovery, and the City took Harden's deposition. Harden did not take any depositions. On May 2, 2016, Harden filed an amended complaint in which he added a claim seeking the recovery of benefits under Alabama's Workers' Compensation Act.

On May 13, 2016, the City filed a motion for a summary judgment in which it asserted that it was entitled to dismissal of all claims against it based on the doctrine of municipal immunity recognized in § 11-47-190, Ala. Code 1975. The City also contended it could not be liable for the claim seeking recovery under the Workers' Compensation Act because the City was not Harden's employer.

On October 10, 2016, Harden filed a response in opposition to the summary-judgment motion in which he contended that the common-law doctrines pertaining to premises liability as to business invitees controlled and that under those doctrines he did not have to present evidence that the City had notice that the grate was defective. In support, Harden submitted his deposition and some pictures of the area where the accident occurred and of the grate. Harden did not present any evidence in opposition to the City's summary-judgment motion regarding the grate that contradicted the information provided in the affidavits submitted by Wheeles, Mackey, and Bailey. Harden conceded in his response that the City could not be liable for the workers' compensation claim.

On January 3, 2017, the trial court entered an order granting the City's summary-judgment motion with regard to Harden's claim for benefits under the Workers' Compensation Act but denying the motion with respect to Harden's remaining claims against the City. The order did not provide a rationale for the trial court's judgment.

The City timely filed this mandamus petition on February 14, 2017.

II. Standard of Review

" ' "Subject to certain narrow exceptions, we have held that, because an 'adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." ' Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 966 (Ala. 2011) (quoting Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002) ). One of the few 'narrow exceptions' we have recognized to the aforesaid general rule is a petition for a writ of mandamus complaining of the denial of a motion to dismiss grounded on a claim of immunity. Ex parte Dickson, 46 So.3d 468, 471 (Ala. 2010) (citing Ex parte Simpson, 36 So.3d 15, 22 (Ala. 2009) )."

Ex parte City of Bessemer, 142 So.3d 543, 549 (Ala. 2013).

" 'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala. 1991) ; will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala. 1992) ; and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
" 'An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992), Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).' "

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000) ).

III. Analysis

Harden first argues in response to the City's petition that the City cannot raise by mandamus petition the issue whether it is immune from suit under § 11-47-190. Harden notes that generally orders denying motions for a summary judgment must be reviewed by way of appeal. Harden contends that the exception that permits appellate review of petitions for the writ of mandamus that assert an immunity defense-which we reiterated in the "Standard of Review"-"has only been applied to State actors making state and federal claims of Sovereign immunity." Harden argues that, because the City asserts a municipal-immunity defense rather than a defense grounded in state or federal immunity, its only avenue of relief from the trial court's summary judgment is an appeal.

Harden is not correct. This Court in several cases has entertained a mandamus petition where a municipality asserted an immunity defense, including: Ex parte City of Guntersville, 238 So.3d 1243, 1246 (Ala. 2017) ; Ex parte Harris, 216 So.3d 1201, 1216 (Ala. 2016) ; Ex parte Labbe, 156 So.3d 368, 374 (Ala. 2014) ; Ex parte City of Bessemer, 142 So.3d 543, 549 (Ala. 2013) ; and Ex parte City of Tuskegee, 932 So.2d 895, 910 (Ala. 2005). Harden's argument is without merit; the City's petition is properly before us.

As we have noted, the City has invoked immunity from suit under § 11-47-190, which provides, in pertinent part:

"No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable for damages by reason of the unauthorized or wrongful acts or negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured...."

(Emphasis added.)

"In a long line of cases, this Court has interpreted th[is] statute to limit municipality liability to two distinct classes. In the first classification, the municipality may be liable, under the doctrine of respondeat superior, for injuries resulting from the wrongful conduct of its agents or officers in the line of duty. In the second classification, the municipality may be liable for injuries resulting from its failure to remedy conditions created or allowed to exist on the streets, alleys, public ways, etc., by 'a person or corporation not related in service to the municipality.' Isbell v. City of Huntsville, 295 Ala. 380, 330 So.2d 607, 609 (1976) ; City of Birmingham v. Carle, 191 Ala. 539, 542, 68 So. 22, 23 (1915). The municipality must have actual or constructive notice of the condition...."

Ellison v. Town of Brookside, 481 So.2d 890, 891-92 (Ala. 1985).

For its part, the City contends that Harden failed to present substantial evidence that one of the two exceptions to municipal immunity from suit recognized in § 11-47-190 applies in this case. In other words, it contends that Harden failed to present substantial evidence that his injuries were the result of some "neglect, carelessness, or unskillfulness" on the part of an agent, officer, or employee of the City, or that the City had any notice of the allegedly defective condition of the grate before the accident occurred.

Harden responds that he did not need to present such evidence because it is undisputed that the City had a duty to maintain in safe condition the grounds of Gattman Park, which is a City-owned park. He then argues that issues regarding breach of that duty, causation, and harm are questions for the jury and that summary judgment would be improper. For this proposition Harden cites Sungas, Inc. v. Perry, 450 So.2d 1085, 1089 (Ala. 1984), in which this Court stated that "the existence vel non of a duty resting upon a defendant is a question of law for the trial judge.... On the other hand, questions regarding breach of that duty, contributory negligence, and proximate cause are ordinarily questions of fact for the jury." Harden therefore argues that the trial court properly denied the City's motion for a summary judgment because, he says, it had been established that the City owed a duty to Harden to keep the subject premises safe.

There are at least two problems with this argument. First and fundamentally, doctrines of immunity shield a government from liability for its action or inaction, often irrespective of the duties it may possess. Consequently, even if the City had a duty to keep Gattman Park in a safe condition for invitees, that determination does not address the issue whether the City is immune from suit under § 11-47-190.

Second, when an issue of fact implicating whether immunity applies in a given case is disputed, then the issue may be submitted to a jury. See, e.g., Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002) ("If there is a genuine issue as to any material fact on the question whether the movant is entitled to immunity, then the moving party is not entitled to a summary judgment. Rule 56, Ala. R. Civ. P."). But the availability of immunity "is ultimately a question of law to be determined by the court." Suttles v. Roy, 75 So.3d 90, 100 (Ala. 2010). Thus, Harden's formulation of the summary-judgment process with regard to immunity is too simplistic.

"[W]here a plaintiff alleges a factual pattern that demonstrates 'neglect, carelessness, or unskillfulness' the plaintiff has stated a cause of action under Ala. Code 1975, § 11-47-190. Whether the plaintiff's allegations state a cause of action and whether the plaintiff has presented substantial evidence creating a genuine issue of material fact can be evaluated by the trial court upon proper motion."

Franklin v. City of Huntsville, 670 So.2d 848, 852 (Ala. 1995) (emphasis added). See also City of Bayou La Batre v. Robinson, 785 So.2d 1128, 1131 (Ala. 2000) (observing that "[t]he allegations of Robinson's complaint relating to the improper use of a fax machine describe conduct that could constitute 'neglect, carelessness or unskillfulness.' Assuming Robinson can present substantial evidence to support this allegation, we must conclude that to allow his claim to proceed would not violate the municipality's immunity granted pursuant to § 11-47-190." (emphasis added) ).

Franklin and Robinson illustrate that Harden is confused as to the elements necessary to qualify for one of the two exceptions to municipal immunity under § 11-47-190. In the face of a properly supported motion for a summary judgment invoking the immunity expressed in § 11-47-190 -and Harden did not contend below nor does he assert in his response to the City's petition that the City's motion was deficient-it is incumbent upon the nonmovant to present substantial evidence of "neglect, carelessness, or unskillfulness" by a municipal agent, officer, or employee, or to present substantial evidence that the municipality had actual or constructive notice of a defect and failed to remedy it and that such negligence or defect caused the plaintiff's injuries.

It is clear that Harden did not present substantial evidence of "neglect, carelessness, or unskillfulness" by City personnel. There is no evidence indicating that a City employee did anything to cause the grate to fail, nor is there any evidence indicating that the City or any employee or agent of the City constructed or installed the grate in the first instance in a negligent manner, or that it had been disturbed in some way by City personnel so as to cause the grate to fail. Nor is there any evidence indicating that the City or its personnel knew or should have known that a steel grate of the nature of the grate at issue would deteriorate to a hazardous state within a 25-year period. To fall within the first exception to municipal immunity prescribed in § 11-47-190, Harden needed to present some kind of evidence indicating that the City knew or should have known that a grate consisting of materials composed in the manner alleged would disintegrate within that time and would need to be replaced. Instead, he offered only supposition and conjecture.

Likewise, there is no evidence indicating that the City had any notice that the grate was, in fact, defective. The City presented evidence from Wheeles, Mackey, and Bailey indicating that the City had never received a complaint about the grate. Mackey specifically testified that for "years prior to [Harden's] accident, City employees drove equipment through the gravel lot in the area of the metal grate at least three times per week," yet no one had ever noticed a problem with the grate. He also related that City employees had accessed the maintenance area at Gattman Park in the week before the accident and that no one had noticed a problem with the grate. Bailey testified that, for the 18 years he worked as a laborer for the Department, he accessed the gravel portion of the maintenance area at Gattman Park "on a near daily basis" and he never noticed a problem with the grate.

Harden also briefly argues in his response to the petition-as he did before the trial court-that he did not need to present evidence of notice of the defective condition of the grate because of the applicability of two common-law exceptions to the notice requirement. The first exception applies when the defective condition is "affirmatively created" by the property owner. The second exception applies when the defect is "part of the premises."

Before we specifically examine these exceptions, we note that Harden's argument ignores the effect that § 11-47-190 may have on the applicability of these exceptions. This Court previously has observed:

"Alabama law has long embraced the common-law doctrine of local-governmental immunity applicable to tort actions against municipalities and counties. Indeed, this Court has explained that the doctrine predates, but survived, the adoption of the 1901 Constitution. Garner v. Covington Cnty., 624 So.2d 1346 (Ala. 1993) ; Home Indem. Co. v. Anders, 459 So.2d 836 (Ala. 1984). It is a doctrine designed to protect local governments and their coffers. See, e.g., Smith v. Schulte, 671 So.2d 1334, 1343-44 (Ala. 1995) (abrogated on other grounds, Ex parte Apicella, 809 So.2d 865 (Ala. 2001) ); Garner, 624 So.2d at 1351. Because it was in fact a common-law doctrine and not created by the constitution, it was and is subject to modification by the legislature. Smith v. Schulte, supra (recognizing 'the unique status' of counties and cities that enables the legislature to regulate their tort liability); Garner, 624 So.2d at 1351. Our legislature has chosen to exercise that control with the enactment, among other statutes, of § 11-47-190, and its predecessors dating back to soon after the adoption of the 1901 Constitution and the debates over municipal liability that occurred at the constitutional convention...."

Ex parte City of Bessemer, 142 So.3d 543, 549-50 (Ala. 2013) (footnotes omitted; emphasis added).

Thus, § 11-47-190 sets the legal standard for when municipal immunity from suit applies and when it does not. See, e.g., Scott v. City of Mountain Brook, 602 So.2d 893, 894 (Ala. 1992) (stating that § 11-47-190"is the pertinent statutory enactment regarding municipal immunity"); Pollan v. City of Dothan, 243 Ala. 99, 101, 8 So.2d 813, 814 (1942) (observing that the identical predecessor to § 11-47-190, Title 37, § 502 (Ala. Code 1940), "prescribes the scope and limit of the liability of municipal corporations"); City of Bessemer v. Chambers, 242 Ala. 666, 669, 8 So.2d 163, 165 (1942) (concluding that "the limitation of liability in [Title 37, § 502 (Ala. Code 1940),] necessarily means to exclude liability on any other account"). In doing so, the statute clearly states that there are only two exceptions to its general rule of immunity. See, e.g., Ex parte City of Bessemer, 142 So.3d at 550 (noting that " § 11-47-190 creates an exception to the general rule of immunity for municipalities ('[n]o city or town shall be liable ... unless') when a plaintiff has suffered injury as a result of 'the neglect, carelessness or unskillfulness' of some agent, or when the plaintiff suffers injury as a result of the 'neglect or carelessness or failure to remedy some defect' in public works caused by a third party"); Ellison , 481 So.2d 890, 891-92 (1985) (quoted supra, 257 So.3d at 855). Therefore, unless Harden's asserted common-law exceptions to the notice requirement somehow fit within the exceptions stated in § 11-47-190, they do not, per se, help Harden.

Because Harden failed to present substantial evidence in response to the City's properly supported motion for a summary judgment-evidence indicating that one of the two exceptions to municipal immunity detailed in § 11-47-190 is implicated in this case-we are forced to conclude that the trial court erred in denying the City's motion.

IV. Conclusion

The City is entitled to immunity from Harden's action under § 11-47-190.

Therefore, we grant the City's petition and order the trial court to vacate its order denying the City's motion for a summary judgment and to enter an order granting that motion.

PETITION GRANTED; WRIT ISSUED.

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

      The statement in Sungas that the existence of a duty is always a question of law for the Court was abrogated in Garner v. Covington Cty., 624 So.2d 1346 (Ala. 1993). In Garner, we noted that this Court has stated that " ' "[w]here the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury." ' " Id. at 1349-50 (quoting Alabama Power Co. v. Brooks, 479 So.2d 1169, 1175 (Ala. 1985), quoting in turn Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala. 1979) ).

      To the extent that Harden's argument relies upon the doctrine of res ipsa loquitur, it also fails because " '[t]he owner of a premises ... is not an insurer of the safety of his invitees ... and the principle of res ipsa loquitur is not applicable. There is no presumption of negligence which arises from the mere fact of an injury to an invitee.' " Ex parte Harold L. Martin Distrib. Co., 769 So.2d 313, 314 (Ala. 2000) (quoting Tice v. Tice, 361 So.2d 1051, 1052 (Ala. 1978) ).

      In general "[a] landowner owes an invitee a duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn the invitee of defects and dangers that are known to the landowner but are unknown or hidden to the invitee." Prentiss v. Evergreen Presbyterian Church, 644 So.2d 475, 477 (Ala. 1994) (emphasis added).

      This is not to say that one or both of Harden's common-law exceptions to the notice requirement might not align with one or both of the exceptions to immunity provided by § 11-47-190.


author: DONALDSON, Judge.

text:
    Jerry M. BLEVINS v. THOMAS R. BOLLER, P.C.
    Ex parte Jerry M. Blevins
    (In re: Thomas R. Boller, P.C. v. Veronica Elena Brogan)
    2150969
    Court of Civil Appeals of Alabama.
    January 6, 2017
    Jerry M. Blevins, Montgomery, pro se.
    Submitted on petition only.
   DONALDSON, Judge.

Jerry M. Blevins petitioned this court for a writ of mandamus directing the Baldwin Circuit Court ("the trial court") to vacate its orders requiring him to transfer funds to the Baldwin Circuit Clerk. As explained in more detail below, we construe that portion of Blevins's petition as an appeal from interlocutory orders issuing and continuing an injunction. However, because it was untimely filed, we dismiss the appeal. Blevins also asserts in his petition that the trial court lacked personal jurisdiction over him and lacked subject-matter jurisdiction over contempt proceedings against him. We construe that portion of the petition as a petition for a writ of prohibition. Because Blevins did not allow the trial court an opportunity to consider his jurisdictional arguments before he resorted to filing his petition in this court, we deny the petition for a writ of prohibition regarding the contempt proceedings.

Background

On October 2, 2015, Thomas R. Boller, P.C. ("the law firm"), filed a complaint against Veronica Elena Brogan in the trial court. In its complaint against Brogan, the law firm alleged that Brogan owed it $22,979.11 plus interest for legal services rendered on an open account or, alternatively, on an account stated. At that time, the law firm's attorneys were representing Brogan in a divorce action. On October 7, 2015, a judgment divorcing Brogan and her husband was entered, and that judgment apparently included a provision ordering the marital residence to be sold, with the proceeds to be divided between Brogan and her husband. On October 27, 2015, upon their motions, the law firm's attorneys were permitted to withdraw from further representation of Brogan in the divorce action.

Blevins represented Brogan as her legal counsel in the law firm's action against her. Through Blevins, Brogan filed an answer denying the law firm's allegations. In November 2015, a sales contract was entered for the sale of the marital residence. On December 1, 2015, one of the law firm's attorneys filed a claim in the Baldwin Probate Court, asserting an attorney's lien arising from the law firm's representation of Brogan, against Brogan's ownership interest in the marital residence. In an e-mail to the closing agent for the sale of the marital residence, Blevins stated that there was an agreement to hold the proceeds due Brogan from the sale "in trust until such time as the lien filed by [the law firm] is resolved." The proceeds due Brogan from the sale, $8,290.25 ("the funds"), were remitted to Blevins.

On December 23, 2015, Brogan, through Blevins, filed counterclaims alleging slander of title and conversion against the law firm. Brogan alleged, among other things, that the law firm had falsely claimed that Brogan owed a debt to the law firm and that it was entitled to an attorney's lien. Brogan also alleged that the law firm had wrongfully interfered with the sale of the marital residence.

On June 13, 2016, the trial court granted a motion filed by Blevins to withdraw from further representation of Brogan. Later that day, the law firm filed a "Motion for Order of Interpleader" requesting an order directing Blevins "to immediately interplead the funds in the amount of $8,290.25 into the [circuit clerk's office] ...." On June 24, 2016, the trial court granted the law firm's motion. In a letter to one of the law firm's attorneys, dated July 8, 2016, Blevins stated that he was in receipt of the law firm's "Motion for Order of Interpleader" and that his and Brogan's position had been that the law firm's attorney's lien was never properly perfected. Blevins also stated in the letter that he had asserted an attorney's lien on the funds and that his attorney's lien had priority over any claim by the law firm.

On July 11, 2016, the law firm filed a motion to compel Blevins to comply with the June 24, 2016, order and to interplead the funds to the circuit clerk's office. The July 11, 2016, motion contains a certificate of service certifying that the motion was filed with the circuit clerk using the AlaFile electronic-filing system, indicating that notification of the filing would be sent electronically to Blevins and Brogan. In a letter to one of the law firm's attorneys, dated July 19, 2016, Blevins stated that, unless the law firm commenced within 14 days a declaratory-judgment action regarding the funds, he was going to assume the law firm did not intend to dispute his claim to the funds. On July 29, 2016, the trial court entered an order granting the law firm's motion to compel. The trial court ordered Blevins to turn over the funds to the circuit clerk within 10 days, and it directed the circuit clerk to forward a copy of the order to Blevins.

On August 8, 2016, Blevins filed a motion in the trial court to vacate the June 24, 2016, and July 29, 2016, orders. Blevins stated in the August 8, 2016, motion that he had received the July 29, 2016, order granting the motion to compel. Blevins argued that the orders were void for lack of subject-matter jurisdiction and for lack of personal jurisdiction and that the orders were entered in a manner inconsistent with his rights to due process. Blevins asserted that he had not been served with the June 24, 2016, order granting the law firm's interpleader motion or the law firm's July 11, 2016, motion to compel him to comply with the June 24, 2016, order.

On August 19, 2016, the law firm filed a motion seeking a finding of contempt against Blevins for his failure to comply with the July 29, 2016, order. The certificate of service on the motion included Blevins as a person to be notified of the filing. On August 29, 2016, notices were sent to Blevins regarding a hearing to be held on October 4, 2016, on the contempt motion and on his motion to vacate.

On September 9, 2016, Blevins filed a petition for a writ of mandamus in this court. Blevins also filed a motion to stay the proceedings in the trial court, and this court granted a stay pending our decision on Blevins's petition. On October 25, 2016, Blevins filed a notice informing this court that Brogan had filed for bankruptcy on October 18, 2016. This court directed Blevins and the law firm to provide letter briefs regarding the effect, if any, of the bankruptcy filing on the proceedings in this court. In its letter brief, the law firm argued that the automatic stay, effective pursuant to 11 U.S.C. § 362, applied to stay the proceedings brought by Blevins in this court. In his letter brief, Blevins argued that the automatic stay did not apply because, he asserted, his petition did not concern property belonging to Brogan.

Discussion

Before determining the effect of Brogan's bankruptcy filing on the proceedings before us, we must first address whether this court acquired jurisdiction over this case. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). "The timely filing of the notice of appeal is a jurisdictional act." Thompson v. Keith, 365 So.2d 971, 972 (Ala. 1978). Both orders that form the basis of Blevins's petition are nonfinal, interlocutory orders and were entered in a case that remains pending in the trial court. As explained below, we construe Blevins's petition for a writ of mandamus in regard to the June 24, 2016, order and the July 29, 2016, order to be an appeal from interlocutory orders issuing and continuing an injunction. Rule 4(a)(1)(A), Ala. R. App. P., provides that a notice of appeal challenging such an order must be filed within 14 days of the date of the entry of the "interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction."

Blevins challenges the trial court's June 24, 2016, order granting the law firm's "Motion for Order of Interpleader" and the July 29, 2016, order granting the law firm's motion to compel Blevins to comply with the June 24, 2016, order. Rule 22, Ala. R. Civ. P., provides, in relevant part:

"(a) Plaintiff or Defendant. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20[, Ala. R. Civ. P.].
"(b) Release From Liability; Deposit or Delivery. Any party seeking interpleader, as provided in subdivision (a) of this rule, may deposit with the court the amount claimed, or deliver to the court or as otherwise directed by the court the property claimed, and the court may thereupon order such party discharged from liability as to such claims, and the action continued as between the claimants of such money or property."

Unlike a pleading initiating interpleader proceedings pursuant to Rule 22, the law firm's "Motion for Order of Interpleader" did not seek to release the law firm from multiple liability or to have the law firm deposit funds in its possession into the trial court. Instead, despite the name given to the motion, the motion sought an order requiring Blevins to transfer the funds that were in his possession to the trial court.

"An injunction is defined as '[a] court order commanding or preventing an action.' " Dawkins v. Walker, 794 So.2d 333, 335 (Ala. 2001) (quoting Black's Law Dictionary 788 (7th ed. 1999)). " '[I]t has long been the law that substance, not nomenclature, is "the determining factor regarding the nature of a party's pleadings or motions." ' " Ex parte Alabama Dep't of Mental Health, 207 So. 3d 743, 755 (Ala. Civ. App. 2016) (quoting Chamblee v. Duncan, 188 So.3d 682, 691 (Ala. Civ. App. 2015), quoting in turn Eddins v. State, 160 So.3d 18, 20 (Ala. Civ. App. 2014) ). Under the circumstances of this case, we determine that the substance of the law firm's "Motion for Order of Interpleader" constituted a request for injunctive relief, i.e., an order commanding action by Blevins, and that the trial court's June 24, 2016, interlocutory order issued an injunction requiring Blevins to transfer the funds to the trial court. The proper means for obtaining appellate review of an interlocutory order issuing an injunction is through an appeal. Ex parte State Pers. Bd., 45 So.3d 751, 754 (Ala. 2010). We therefore consider Blevins's petition for a writ of mandamus in regard to the June 24, 2016, order and the July 29, 2016, order as a notice of appeal. See Ex parte Alabama Dep't of Mental Health, 207 So. 3d at 753-56 (considering petition for writ of mandamus challenging an order granting an interlocutory injunction as an appeal).

Blevins's petition was filed on September 5, 2016, more than 14 days after the trial court entered the June 24, 2016, order issuing an injunction. Therefore, the petition, construed as a notice of appeal regarding the June 24, 2016, order, was untimely filed. See Rule 4(a)(1). The July 29, 2016, order granted the law firm's motion to compel Blevins to comply with the June 24, 2016, order. That order continued the injunction and was also subject to the 14-day appeal requirement. See Rule 4(a)(1). Blevins's petition, construed as a notice of appeal regarding the July 29, 2016, order, was also untimely filed. As a result, this court did not acquire jurisdiction over Blevins's appeal of the June 24, 2016, order or the July 29, 2016, order. Without jurisdiction, we have no occasion to determine the effect of Brogan's bankruptcy filing on Blevins's challenge to those two orders. Accordingly, we dismiss the appeal. See Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.").

Blevins's petition also challenges the trial court's August 29, 2016, notice that a hearing would be held concerning the law firm's contempt motion against him. The materials Blevins submitted to this court contain only a notice of a hearing set for the law firm's motion seeking a finding of contempt against Blevins. The materials submitted do not include any order entered by the trial court regarding the contempt proceedings. Blevins argues that the trial court does not have subject-matter jurisdiction over the contempt matter or personal jurisdiction over him. As Blevins acknowledges, the filing of a petition for a writ of prohibition is the proper procedure for challenging a trial court's jurisdiction in a contempt proceeding. Ex parte Segrest, 718 So.2d 1, 4 (Ala. 1998) ; see Ex parte State Dep't of Mental Health & Mental Retardation, 536 So.2d 78, 80 (Ala. Civ. App. 1988) ("[T]he writ of prohibition is a preventative rather than a corrective remedy employed to prevent a usurpation of excess jurisdiction by a judicial tribunal."). We therefore construe Blevins's petition regarding the contempt claim as a petition for a writ of prohibition.

"[A] writ of prohibition is not only an extraordinary writ, but a drastic one which is to be employed with extreme caution. Ex parte Burch, 236 Ala. 662, 184 So. 694 (1938). It should be used only in cases of extreme necessity. Burch, 236 Ala. 662, 184 So. 694. It is not a favored writ and will be invoked only where the petition shows on its face that the court below does not have jurisdiction to do or perform an act of judicial nature which it is proposing to perform. Hudson v. Sparks, 272 Ala. 203, 129 So.2d 664 (1961)."

Ex parte State Dep't of Mental Health & Mental Retardation, 536 So.2d at 79-80.

"[T]here are generally four prerequisites to the issuance of a writ of prohibition: '(1) usurpation or abuse of power by an inferior judicial or quasi-judicial tribunal, (2) lack of another adequate remedy, (3) injury to the petitioner, and (4) presentation of the question before the inferior tribunal before resorting to the writ.' Barber Pure Milk Co. v. Alabama State Milk Control Bd., 274 Ala. 563, 565, 150 So.2d 693, 695 (1963)."

Ex parte Segrest, 718 So.2d at 4 n.2.

As shown in the materials submitted to us, Blevins raised the lack of personal jurisdiction and the lack of subject-matter jurisdiction as defenses in his motion to vacate, and the law firm filed a motion for contempt sanctions against Blevins. The trial court then set a hearing on both motions for October 4, 2016. Blevins filed his petition in this court before the scheduled hearing and before the trial court ruled on his jurisdictional arguments. Therefore, the trial court has not been shown to have usurped or abused any power, nor has the question been adequately presented to the trial court. See Ex parte Segrest, supra.

We turn to the effect of Brogan's bankruptcy filing on the petition for the writ of prohibition regarding the hearing on the law firm's contempt motion against Blevins. "The United States Bankruptcy Code provides for an automatic injunction as set out in 11 U.S.C. § 362 ; it stays actions by a creditor against the debtor." Gaddy v. SE Prop. Holdings, LLC, 218 So. 3d 315, 319 (Ala. 2016). "The purpose of the automatic stay [provided by § 362 ] is to reinforce the jurisdiction of the bankruptcy court over the debtor's assets and forestall the race to levy upon or make claims against the debtor's property with possibly inconsistent results." Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 995 (5th Cir. 1985) (citing Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir. 1983) ). Section 362(a) prohibits, among other actions, the following actions:

"(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
"....
"(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
"(4) any act to create, perfect, or enforce any lien against property of the estate;
"(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
"(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title."

We cannot determine from these proceedings that the automatic stay applies to our consideration of the issue. The law firm's motion for a finding of contempt against Blevins was not directed toward the debtor, Brogan; therefore, Blevins's petition to this court challenging the contempt proceedings is not a continuation of judicial proceedings against Brogan. Moreover, Blevins has not argued against the merits of a finding of contempt against him. His petition challenges only the trial court's assertion of jurisdiction, and the jurisdictional questions do not concern property in Brogan's estate. As a result, from the materials before us, we determine that our decision to deny Blevins's petition for the writ of prohibition does not appear to be a judicial proceeding or an action subject to the automatic-stay provision of § 362. See Bradberry v. Carrier Corp., 86 So.3d 973, 983 (Ala. 2011) (holding that automatic-stay provision of § 362 did not extend to judicial proceedings involving debtor's remaining solvent codefendants).

Conclusion

Blevins's appeal of the interlocutory orders issuing and continuing an injunction was untimely filed. Accordingly, we dismiss the appeal of the June 24, 2016, order and the July 29, 2016, order. Blevins failed to satisfy one of the prerequisites for the issuance of a writ of prohibition-namely, the trial court was not permitted to consider his jurisdictional arguments concerning the contempt proceedings before he filed his petition in this court. We therefore deny the petition for a writ of prohibition regarding the contempt proceedings against him.

APPEAL DISMISSED; PETITION DENIED.

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

      We have restyled this case to accurately reflect the proceedings before us.

      The materials submitted by Blevins include the divorce judgment, but the page containing the provision regarding the marital residence is omitted. Nevertheless, the parties appear to agree as to how the property was divided in the divorce judgment.

      Blevins also argues that he was deprived of his due-process rights, but that argument concerns the trial court's entry of the June 24, 2016, order and the July 29, 2016, order.

      Our determination has no bearing on whether the automatic stay pursuant to § 362 applies to any of the proceedings in the trial court.


author: PITTMAN, Judge.

text:
    EX PARTE Tiara Brooke LYCANS
    (In re: Tiara Brooke Lycans v. Zachary Thomas Lycans)
    2160563
    Court of Civil Appeals of Alabama.
    July 28, 2017
    Tamara W. Neeley of Watson & Neeley, LLC, Fort Payne, for petitioner.
    Dinah P. Rhodes of Rhodes & Creech, LLC, Huntsville, for respondent.
   PITTMAN, Judge.

Tiara Brooke Lycans ("the mother"), the plaintiff in a divorce action pending in the DeKalb Circuit Court ("the divorce action"), petitions for a writ of mandamus directing the trial judge, Shaunathan C. Bell, to recuse himself from presiding over that action. For the reasons discussed below, we deny the petition.

Before filing her mandamus petition, the mother filed two motions in the trial court asking Judge Bell to recuse himself; Judge Bell denied both motions. Judge Bell entered his written order denying the last of those motions on March 9, 2017; the mother then filed her mandamus petition within the 42-day presumptively reasonable time after March 9, 2017, and this court called for an answer to the petition.

The mother based her motions on that portion of Canon 3.C.(1), Alabama Canons of Judicial Ethics, that provides that "[a] judge should disqualify himself in a proceeding in which ... his impartiality might reasonably be questioned ...." The mother, who is a lesbian and the mother of a child ("the child") born of her marriage to Zachary Thomas Lycans ("the father"), who is heterosexual, did not assert that Judge Bell was actually biased against her because she is a lesbian; rather, she asserted that, because she is a lesbian and because of Judge Bell's publicly expressed belief that homosexual relationships and marriages are contrary to God's law, a reasonable person would have a reasonable basis for questioning Judge Bell's impartiality in the divorce action.

At the hearing on the mother's second motion, Judge Bell declined to testify; however, he permitted the mother to state what she expected his testimony would indicate if he had testified. According to the mother's statement, Judge Bell's testimony would have established that, for almost 15 years, he has been the preacher of a fundamentalist church that believes that homosexual relationships and marriages are contrary to God's law, that such relationships and marriages are sinful and immoral, and that God's law takes precedence over man-made law; that Judge Bell has continued to serve as the preacher of that church after taking office as a circuit judge and is currently serving as the preacher of that church; that Judge Bell considers the moral environment a child would live in to be of paramount importance in determining what custody arrangement is in the best interests of the child; that, the day after the United States Supreme Court released its decision in Obergefell v. Hodges, 576 U.S. ----, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), holding that a state law that prohibited same-sex marriages violated the United States Constitution, Judge Bell reposted a message, referred to as a "tweet," on Twitter, a popular social-media platform at the time this opinion is being issued (Judge Bell's Twitter post is hereinafter referred to as "the retweeted tweet"), stating that God created marriage and that God's decisions regarding marriage are not subject to review or revision by any man-made court; that, after the mother filed her first motion to recuse, Judge Bell removed the retweeted tweet; and that, almost a year after the United States Supreme Court had released its decision in Obergefell v. Hodges, Judge Bell ruled in an action involving two lesbians who had been married in Florida that, because Florida law did not allow same-sex marriages when they were married, their divorce action would be treated as one seeking an annulment on the ground that their marriage was void. Judge Bell did not dispute that his testimony would have established those facts; however, he pointed out that, in the pendente lite custody order he had entered in the divorce action, he had granted the mother and the father joint physical custody of the child, with the parties alternating custody weekly, and that he had granted lesbian mothers joint physical custody with the fathers of their children, with custody alternating weekly, in two other divorce actions.

"The issue of recusal may properly be raised in a petition for a writ of mandamus. Ex parte Crawford, 686 So.2d 196, 198 (Ala. 1996). 'The writ of mandamus is an extraordinary remedy which should be granted only when it is clear that the trial court abused its discretion.' Ex parte Rollins, 495 So.2d 636, 638 (Ala. 1986). Further, ' "[t]he burden of proof is on the party seeking recusal." ' Ex parte City of Dothan Personnel Bd., 831 So.2d 1, 9 (Ala. 2002) (quoting Ex parte Cotton, 638 So.2d 870, 872 (Ala. 1994) ).
" 'The standard for recusal is an objective one: whether a reasonable person knowing everything that the judge knows would have a "reasonable basis for questioning the judge's impartiality." [ Ex parte Cotton, 638 So.2d 870, 872 (Ala. 1994) ]. The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question.'

" Ex parte Bryant, 682 So.2d 39, 41 (Ala. 1996)."

Ex parte Bank of America, N.A., 39 So.3d 113, 117 (Ala. 2009). Thus, the issue before us is not whether Judge Bell is biased against the mother because she is a lesbian; rather, the issue is " 'whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality" ' " in the divorce action. Id. (emphasis added).

The custody of the child is the primary issue for determination in the divorce action. Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, his expressed belief that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live in determining what custody arrangement is in the child's best interests are facts that would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality exists. Rather, the issue is " 'whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality." ' " Id. (emphasis added). A reasonable person who knows everything that Judge Bell knows would know that Judge Bell, in his pendente lite custody order entered in the divorce action, granted the mother and the father joint physical custody of the child, with custody alternating weekly, and that Judge Bell has granted two other lesbian mothers and the fathers of their children joint physical custody, with custody alternating weekly. We conclude that a reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality in the divorce action. Accordingly, we deny the petition.

PETITION DENIED.

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


text:
    Hal TAYLOR, in his official capacity as secretary of the Alabama Law Enforcement Agency v. Bradley Christopher HARVEY
    2160435
    Court of Civil Appeals of Alabama.
    October 13, 2017 Certiorari Denied February 16, 2018
    Alabama Supreme Court 1170097
    Jessica K. Sanders, asst. atty. gen., Alabama Law Enforcement Agency, for appellant.
    Robert C. Graham, Tuscumbia; and Leigh Anne Landis, Tuscumbia, for appellee.
   PITTMAN, Judge.

The Alabama Law Enforcement Agency ("ALEA"), by and through Hal Taylor, its secretary, appeals from a judgment entered by the Colbert Circuit Court that reinstated the driving privileges of Bradley Christopher Harvey and ordered the dismissal of administrative proceedings involving the suspension of Harvey's driving privileges. We reverse and remand.

The record reflects that, on September 15, 2015, at 10:32 p.m., in the city of Sheffield, Harvey was arrested by a police officer for allegedly having committed a violation of § 32-5A-191(a)(2), Ala. Code 1975, which prohibits the operation of a motor vehicle while under the influence of alcohol. The Uniform Traffic Ticket and Complaint ("UTTC") form generated at that time bears the printed name of a Sheffield police officer, but it does not contain a complainant's signature or an entry indicating that it was "sworn to and acknowledged before" a magistrate judge. Harvey was informed by the arresting officer of the legal duty of a motor-vehicle operator to submit to a chemical test of breath for the purpose of determining the alcoholic content of that operator's blood, see generally Ala. Code 1975, § 32-5-192, but Harvey refused to undergo such a test.

After Harvey had refused the breath test, the arresting officer completed a "Form AST-60" promulgated by the Alabama Department of Public Safety ("DPS"), an agency that is, by statute, now a component of ALEA (see Ala. Code 1975, § 41-27-1 ). The form stated the pertinent facts of Harvey's arrest, the officer's observations of Harvey purportedly amounting to probable cause to believe that Harvey had violated § 32-5A-191, and the fact of Harvey's refusal of chemical breath analysis despite being informed both of his duty to provide a breath sample and his potential loss of driving privileges as a result of the refusal. An unsworn copy of the Form AST-60 was provided to Harvey, while a notarized original was transmitted to DPS along with a copy of the UTTC. That transmission was undertaken pursuant to the requirements of Ala. Code 1975, tit. 32, art. 14 ("Article 14"), under which the director of DPS or his or her agent "shall suspend the driving privilege of any person" upon determination that the person either operated a motor vehicle while the amount of alcohol in the person's blood exceeded the legal limit or refused a test to determine the person's blood-alcohol content. Ala. Code 1975, § 32-5A-300(a) and (b). Another portion of Article 14, Ala. Code 1975, § 32-5A-301, provides in full as follows:

"(a) A law enforcement officer who arrests any person for a violation of Section 32-5A-191 shall within five days after the day of arrest, excluding weekends and state holidays, hand deliver, mail, or submit electronically to [DPS] a sworn report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated Section 32-5A-191, the results of any chemical test which was conducted, a statement if the person refused to submit to a test, and a copy of the citation or complaint filed with the court.
"(b) The report required by this section shall be made on forms supplied by [DPS] or in a manner specified by regulations of [DPS].
"(c) [DPS] shall not take action on any report not sworn to and not mailed and postmarked or received by [DPS] within five days after the day of arrest, excluding weekends and state holidays."

(Emphasis added.)

After the arresting officer had made his report to DPS, Harvey sought and obtained an administrative hearing pursuant to Ala. Code 1975, § 32-5A-307 ; however, after that hearing, the DPS hearing officer assigned to Harvey's case determined that the facts met the statutory requirements to sustain the suspension of Harvey's driving privileges, and that determination was subsequently confirmed by DPS's chief hearing officer. Harvey then timely sought judicial review of his suspension in the Colbert Circuit Court, pursuant to Ala. Code 1975, § 32-5A-308, and sought and obtained a stay of the suspension of his driving privileges.

On November 16, 2016, the circuit court held a hearing, at which the arresting officer and an ALEA records custodian testified. During direct examination of the arresting officer, after having elicited testimony regarding Harvey's refusal to submit to a breath test, ALEA offered Exhibit 1, which was identified as a copy of the UTTC that had been prepared by the officer; however, on voir dire examination, the officer admitted that Exhibit 1 had not been signed or sworn to, and the circuit court ruled that Exhibit 1 would not be admitted into evidence. Similarly, the ALEA records custodian admitted on cross-examination that she did not have a sworn copy of the UTTC. After those witnesses had testified, counsel for Harvey orally moved for a judgment in Harvey's favor (cf. Rule 52(c), Ala. R. Civ. P.) because of the absence of a sworn copy of the UTTC; the circuit court granted that motion, stating that, "[b]ased upon the failure to present a sworn [UTTC], I think that is what justice requires," and entered a judgment directing that Harvey's driving privileges be reinstated. Following the denial, by lapse of time, of ALEA's postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., see generally Rule 59.1, Ala. R. Civ. P., Taylor, in his official capacity as secretary of ALEA, filed a notice of appeal to this court. We have appellate jurisdiction pursuant to Ala. Code 1975, § 12-22-2, under which final judgments of circuit courts are generally appealable to the appropriate appellate court, and § 12-3-10, which identifies this court as the appropriate appellate court to hear appeals arising from decisions of administrative agencies, such as ALEA.

Ordinarily, under the Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, § 41-22-1 et seq., judicial review by circuit courts of decisions of administrative agencies is (1) subject to the presumption that the agency has acted correctly and (2) limited to the record made before an administrative agency, see Ala. Code 1975, § 41-22-20(i), (j), and (k) ; moreover, subsequent appellate review under the AAPA likewise is subject to the same scope and standards. See Alabama Dep't of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 384 (Ala. Civ. App. 2008). However, Article 14 states that "[t]he procedures set forth in [that] article shall be the sole and exclusive manner to determine the administration of [that] article" and expressly provides that the AAPA "shall not apply." Ala. Code 1975, § 32-5A-307(g). Instead, Ala. Code 1975, § 32-5A-308, provides that, at any judicial-review hearing held by a circuit court in a case involving suspension by ALEA of driving privileges, "the court may take testimony and examine the facts of the case" and, thereafter, may "either reverse or sustain the final determination of" ALEA. We thus agree with Harvey that the circuit court's review of the DPS hearing officer's decision was de novo and was not subject to the deferential standards set forth in the AAPA for which ALEA advocates. See Director, Dep't of Pub. Safety v. Irvine, 603 So.2d 1074, 1075 (Ala. Civ. App. 1992) (holding that, under a similar driver's license disciplinary statute, Ala. Code 1975, § 32-5A-195(q), a judicial-review proceeding "is a de novo hearing, i.e., the trial court is empowered to have a hearing, to take testimony, to receive evidence, and to make a finding on its own," and "the [d]irector [of the disciplining agency] ha[s] the burden of proof").

However, that the circuit court in this case conducted a de novo review of the suspension of Harvey's driving privileges does not immunize its judgment from reversal. Rather, an appellate court itself "reviews de novo a trial court's interpretation of a statute, because only a question of law is presented." Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala. 2003). In this case, we are called upon to review the circuit court's conclusion that ALEA failed to prove the correctness of its administrative decision to suspend Harvey's driving privileges because no sworn copy of the UTTC transmitted by the arresting officer was produced at trial.

We again turn to the pertinent statutes in Article 14. As we have noted, the legislature has, in Article 14, required the suspension of the driving privileges of persons when it is determined that the person has refused testing to determine his or her blood-alcohol content. Ala. Code 1975, § 32-5A-300(b). In this case, it is undisputed that Harvey refused such a test when the arresting officer sought to perform it and that a Form AST-60 was prepared by the arresting officer that disclosed information regarding Harvey's identity and residence and contained both a statement of the officer's observations pertinent to whether Harvey had been intoxicated and a notation regarding Harvey's refusal to submit to a breath test. Further, the evidence presented to the circuit court indicated that a sworn copy of that Form AST-60, as well as a copy of the UTTC issued to Harvey, was transmitted to and received by DPS, although a copy of the Form AST-60 that did not contain a notarial attestation was given to Harvey.

In order for ALEA to make a valid determination that a person's driving privileges should be suspended under Article 14, the legislature has mandated that an arresting officer must, within five working days, transmit a "sworn report" that is to include "information which adequately identifies the arrested person," "a statement of the officer's grounds for belief that the person violated Section 32-5A-191," "the results of any chemical test which was conducted," "a statement if the person refused to submit to a test," and "a copy of the citation or complaint filed with the court." Ala. Code 1975, § 32-5A-301(a). In other words, the report of the arresting officer is what must be sworn, not the UTTC copy: the agency, i.e., DPS, under Ala. Code 1975, § 32-5A-301(c), "shall not take action on any report not sworn to and not mailed and postmarked or received by [DPS] within five days after the day of arrest, excluding weekends and state holidays" (emphasis added). We infer from the legislature's simultaneous use of "sworn report" in two instances and of the simple term "copy" in one instance in § 32-5A-301(a) that it was not intended that the UTTC, which is the document constituting the "citation or complaint filed with the court" that initiates criminal driving-under-the-influence proceedings against an accused motorist, is also required to be sworn in the same manner that the arresting officer's Form AST-60 must be in order for ALEA to properly declare the suspension of that motorist's driving privileges. Stated another way, while the failure of an arresting officer to swear to the contents of a UTTC may or may not have adverse effects upon the institution and maintenance of criminal proceedings against a person accused of driving under the influence of drugs or alcohol, that omission does not invalidate the jurisdiction of ALEA to administratively suspend that person's driving privileges, and the circuit court erred in concluding that the lack of a "sworn" UTTC copy warranted a conclusion that Harvey's driving privileges could not properly be suspended by ALEA.

Based upon the foregoing facts and authorities, we conclude that the judgment of the circuit court reversing ALEA's administrative suspension of Harvey's driving privileges was erroneous as a matter of law. We therefore reverse the judgment and remand the cause for the circuit court to conduct further proceedings pursuant to § 32-5A-308 and to thereafter determine, without regard to the absence of a sworn copy of the UTTC issued to Harvey, whether the administrative suspension of Harvey's driving privileges by ALEA should be reversed or sustained under the facts evidenced.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      Pursuant to Rule 43(b), Ala. R. App. P., in April 2017 Hal Taylor was automatically substituted as the appellant upon being named secretary of ALEA.


author: THOMPSON, Presiding Judge.

text:
    Mark J. ALT v. Myong C. ALT
    2160363
    Court of Civil Appeals of Alabama.
    November 17, 2017
    William Bush Matthews, Jr., and William Carroll Matthews, Ozark, for appellant.
    Joseph James Gallo, Daleville, for appellee.
   THOMPSON, Presiding Judge.

On January 23, 2017, the Dale Circuit Court ("the trial court") entered a judgment modifying certain provisions of a judgment that divorced Myong C. Alt ("the wife") and Mark J. Alt ("the husband"). The trial court, apparently ex mero motu, amended that modification judgment the next day. On February 24, 2017, the husband filed a notice of appeal to this court.

However, while the appeal was pending in this court and was scheduled for mediation, the wife notified this court that on February 2, 2017, the husband had filed for Chapter 7 bankruptcy protection in the Bankruptcy Court for the Middle District of Alabama ("the bankruptcy court"); accordingly, the wife moved to stay mediation. On April 4, 2017, this court issued an order directing the parties to file letter briefs addressing whether the husband's notice of appeal of the modification judgment was valid

"in light of the filing of the bankruptcy petition before the filing of the notice of appeal. See Hewett v. Wells Fargo Bank, N.A., 197 So.3d 1105 ( [Fla. Dist. Ct. App.] 2016) ; In re Capgro Leasing Associates, 169 B.R. 305, 313 (Bankr. E.D.N.Y. 1994) ; Autoskill Inc. v. National Educational Support Systems, Inc., 994 F.2d 1476 (10th Cir. 1993), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011)."

In response to this court's order, the wife submitted on April 11, 2017, a letter brief in which she argued, among other things, that the husband's appeal should be dismissed. The husband did not respond to this court's order, and he has submitted no filing in this court.

On April 19, 2017, the wife filed in this court a notice stating that the bankruptcy court had terminated the bankruptcy stay. The wife submitted a copy of an April 4, 2017, order, which stated:

"[The wife] filed a motion for relief from the automatic stay imposed by 11 U.S.C. § 362(a) to proceed in a state court domestic-relations case described in the motion. The motion came for a hearing on April 3, 2017. The [husband] could offer no defense. Accordingly, it is
"ORDERED that the motion is GRANTED and the stay is TERMINATED to allow the [wife] to proceed in the state court domestic-relations case."

(Capitalization in original.) This court ordered that the appeal proceed but later entered an order staying briefing pending the resolution of the wife's request, made in her April 11, 2017, letter brief, that the appeal be dismissed.

This court's research has not revealed any caselaw precedent in Alabama concerning an appellate court's jurisdiction to consider an appeal of a judgment when a party filed for bankruptcy protection after a judgment was entered but before filing a notice of appeal from that judgment. But see Linowiecki v. Nichols, 120 So.3d 1082 (Ala. Civ. App. 2013) (discussing the effect of the automatic-stay provision in the Bankruptcy Code with regard to the determination of time to rule on a postjudgment motion when the bankruptcy stay is lifted). Other jurisdictions have addressed the issue, however. The commencement of a bankruptcy action "operates as a stay" of, among other things, "the commencement or continuation ... of a judicial ... action or proceeding against the debtor...." 11 U.S.C. § 362(a)(1). The filing of a notice of appeal has been held to be a continuation of a judicial proceeding that is subject to the automatic-stay provision of § 362. AmMed Surgical Equip., LLC v. Professional Med. Billing Specialists, LLC, 162 So.3d 209, 211 (Fla. Dist. Ct. App. 2015) ; In re Capgro Leasing Assocs., 169 B.R. 305, 310-11 (Bankr. E.D. N.Y.1994). Accordingly, a notice of appeal, filed after a petition is filed in the bankruptcy court, is considered "void and of null effect." In re Capgro Leasing Assocs., 169 B.R. at 313 ; AmMed Surgical Equip., LLC v. Professional Med. Billing Specialists, LLC, 162 So.3d at 211 ("A notice of appeal filed in a federal appellate court following the filing of a bankruptcy petition is ineffective to confer jurisdiction on the court."). Thus, the husband's February 24, 2017, notice of appeal, because it was filed after the husband filed for bankruptcy protection, was not effective.

In Hewett v. Wells Fargo Bank, N.A., 197 So.3d 1105 (Fla. Dist. Ct. App. 2016), Hewett, the appellant, filed for bankruptcy protection after a foreclosure judgment had been entered, but before he filed a notice of appeal of that foreclosure judgment. The Florida appellate court concluded that the notice of appeal was a nullity and that it lacked jurisdiction to consider the appeal. 197 So.3d at 1106-07.

The Bankruptcy Code provides that certain time limitations that arise in state courts are tolled when an action is filed seeking bankruptcy protection.

"(c) Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of-
"(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
"(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim."

11 U.S.C. § 108(c). See AmMed Surgical Equip., LLC v. Professional Med. Billing Specialists, LLC, 162 So.3d at 212 (holding that, although the automatic bankruptcy stay had prevented AmMed from filing a valid notice of appeal, AmMed could validly and timely appeal the August 12, 2014, order within 30 days of the October 21, 2014, lifting of the bankruptcy stay). See also Autoskill Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476 (10th Cir. 1993), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011) (holding that the tolling provision in 11 U.S.C. § 108(b), which is similar to the tolling provision of § 108(c), operated to render timely a notice of appeal filed after the lifting of the bankruptcy stay).

In this case, the husband appealed the January 23, 2017, modification judgment on February 24, 2017, while the automatic stay triggered by his February 2, 2017, bankruptcy filing was in place. Accordingly, that February 24, 2017, notice of appeal was invalid and was without effect. Hewett v. Wells Fargo Bank, N.A., supra ; AmMed Surgical Equip., LLC v. Professional Med. Billing Specialists, LLC, 197 So. 3d at 211. The bankruptcy stay was lifted on April 4, 2017. The husband did not file a valid notice of appeal after that stay had been lifted. "[S]ince the only notice of appeal [the husband] ever filed was a nullity, we are without jurisdiction to consider his appeal." Hewett v. Wells Fargo Bank, N.A., 197 So.3d at 1106-07. See also In re Capgro Leasing Assocs., supra ; AmMed Surgical Equip., LLC v. Professional Med. Billing Specialists, LLC, supra.

The special writing, while speculating about the bankruptcy court's intentions, mentions relief that may be granted by a bankruptcy court under 11 U.S.C. § 362(d), which provides, in part: "On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such a stay ...." (Emphasis added.)

The bankruptcy court's April 4, 2017, order makes clear that that court has already considered "terminating, annulling, or modifying," 11 U.S.C. § 362(d), the stay during a hearing at which it indicated that both parties were present or represented; in its April 4, 2017, order, the bankruptcy court elected to terminate the stay. We cannot assume that the bankruptcy court was unaware of the option to "annul" the stay. Any argument that the bankruptcy stay be annulled is an argument that should have been asserted by the husband, and that argument should have been made in the bankruptcy court when the issue whether the stay should remain in place was first raised. See, e.g., In re Hoffinger Indus., Inc., 329 F.3d 948, 953-54 (8th Cir. 2003). The husband did not comply with this court's request for a letter brief on the jurisdictional issue, and, therefore, he has made no arguments to this court concerning the effect of the termination of the bankruptcy stay.

APPEAL DISMISSED.

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

Thomas, J., concurs specially.

Mark J. Alt ("the husband") has appealed a judgment of the Dale Circuit Court modifying a judgment that had divorced him from Myong C. Alt ("the wife"). The main opinion dismisses the appeal. I concur specially.

I first note that the Alabama Rules of Appellate Procedure do not resolve the problem we face here, namely, whether we should dismiss an appeal that was initiated during the effective period of an automatic stay that had been imposed by federal bankruptcy law, specifically, 11 U.S.C. § 362(a)(1). Like the court in Hewett v. Wells Fargo Bank, N.A., 197 So.3d 1105, 1107 (Fla. Dist. Ct. App. 2016), we must also look to our supreme court for any changes to our procedural rules that would address such situations in the future. See § 12-1-1, Ala. Code 1975.

Regarding this appeal, however, I agree with the main opinion's conclusion that a notice of appeal filed during the effective period of an automatic stay is void for the reasons discussed therein. Under 11 U.S.C. § 362(d), however, a bankruptcy court can retroactively validate actions that were taken in violation of the automatic-stay provisions of 11 U.S.C. § 362(a)(1). See In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984) ("[ Section] 362(d) expressly grants bankruptcy courts the option, in fashioning appropriate relief, of 'annulling' the automatic stay, in addition to merely 'terminating' it. The word 'annulling' in this provision evidently contemplates the power of bankruptcy courts to grant relief from the stay which has retroactive effect; otherwise its inclusion, next to 'terminating,' would be superfluous.").

The April 4, 2017, order entered by the United States Bankruptcy Court for the Middle District of Alabama ("the bankruptcy court") indicates that the automatic stay has been "terminated to allow the [wife] to proceed in the state court domestic-relations case." (Capitalization omitted.) This court has not been made aware of the specific contents of the wife's motion that she filed in the bankruptcy court or the specific argument that she presented in requesting that the stay be terminated. However, it appears that the bankruptcy court believes that this appeal is a "state court domestic-relations case" being prosecuted by the wife as a creditor against the husband. Obviously, however, the wife is the appellee in this matter and has not filed a cross-appeal. Moreover, contrary to her apparent assertions in the bankruptcy court that this appeal should be allowed to "proceed," she has asked this court to dismiss the appeal. However, in order for us to proceed with our consideration of the appeal, as the bankruptcy court appears to intend, the automatic stay must be annulled and not simply terminated. See In re Albany Partners, 749 F.2d at 675.

I am concerned about the possibility that this court is dismissing the husband's appeal when the bankruptcy court is under the impression that terminating the automatic stay will allow us to resolve the issues raised by the husband's appeal. Indeed, it may even believe that a decision from this court is necessary to the resolution of the bankruptcy case. See, e.g., In re Hoffinger Indus., Inc., 329 F.3d 948, 954 (8th Cir. 2003). However, as the main opinion points out, any confusion or ambiguity existing in the bankruptcy court regarding the nature of this appeal and the validity of the husband's notice of appeal should have been raised and addressed by the husband, and it was incumbent upon him to seek annulment of the automatic stay to secure this court's ability to conduct meaningful appellate review of the circuit court's judgment. Moreover, the husband has failed to provide this court with any responsive argument or information that would shed additional light on the intent behind the bankruptcy court's April 4, 2017, order. In the absence of such information, this court is left to consider, without the benefit of relevant appellate argument, the applicability of 11 U.S.C. § 108(c) to appeals filed in this court in an effort to discern some manner in which the husband could have managed to secure appellate review of the circuit court's judgment, given the voidness of his otherwise timely notice of appeal.

If and until our supreme court adopts new procedural rules that would address situations like the one presented by this appeal, I would approach them with caution. When a notice of appeal is filed during the effective period of an automatic stay, I would stay our consideration of the appeal until the parties provide this court with a determination from the relevant bankruptcy court regarding whether the automatic stay should be annulled under 11 U.S.C. § 362(d), thereby validating the notice of appeal. See, e.g., In re Hoffinger Indus., Inc., 329 F.3d at 953-54 (considering a similar situation and reasoning: "We think that retroactive relief was an appropriate way to extricate the various proceedings from the morass into which they had fallen and to set things going again.").

As indicated by an April 19, 2017, order in this case, this court already stays any pending appeal upon receiving a suggestion of bankruptcy until we receive notice that the automatic stay has been "lifted." We should recognize that, in addition to permitting a prospective "lifting" of the automatic stay via termination, 11 U.S.C. § 362(d) empowers bankruptcy courts to "lift" the automatic stay retroactively via annulment. Receiving notice that the automatic stay has been both annulled and terminated would allow us to proceed with our consideration of the appeal, instead of dismissing it, and would not require us to depend upon the operation of 11 U.S.C. § 108(c) to determine the timeliness of appeals that have been filed in this court under our rules of appellate procedure.

Thus, I would maintain our stay of such appeals until receiving notice from the bankruptcy court not only of a determination regarding whether the automatic stay should be terminated, but also regarding whether it should be annulled. Without such a decision from the bankruptcy court, this court risks dismissing an appeal based on the voidness of an appellant's notice of appeal when the notice of appeal may later be validated by the bankruptcy court's annulment of the automatic stay. In such circumstances, the appellant may be deprived of an opportunity to seek appellate review, despite having filed what would have otherwise been a timely notice of appeal under our rules of appellate procedure. Because the husband in this case has made no apparent effort to ensure the continuation of his appeal, however, I concur in the main opinion's decision to dismiss the appeal in this case.