author: PER CURIAM.

text:
    Amada HARRISON, as Administrator of the Estate of Benjamin C. Harrison, deceased v. PCI GAMING AUTHORITY d/b/a Creek Entertainment Center, et al.
    1130168
    Supreme Court of Alabama.
    September 29, 2017
    R. Graham Esdale, Jr., and Dana G. Taunton of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and Kasie M. Braswell and D. Brian Murphy of Braswell Murphy, LLC, Mobile, for appellant.
    Charles A. Dauphin of Dauphin Paris, LLC, Birmingham, for appellees.
    Thomas A. Woodall of Sirote & Permutt, P.C., Birmingham; and Elliott A. Milhollin and Gregory A. Smith of Hobbs, Straus, Dean & Walker, LLP, Washington, D.C., for amici curiae United South and Eastern Tribes, Inc., and National Congress of American Indians, in support of the appellees.
   PER CURIAM.

The Court today decides three appeals involving similar issues of Indian tribal immunity and subject-matter jurisdiction in relation to claims of wrongful conduct by the Poarch Band of Creek Indians ("the Tribe") and business entities wholly owned by the Tribe. See Rape v. Poarch Band of Creek Indians, 250 So.3d 547 (Ala. 2017), and Wilkes v. PCI Gaming Authority, [Ms. 1151312, September 29, 2017] --- So.3d ---- (Ala. 2017). In the present case, Amada Harrison appeals the Escambia Circuit Court's dismissal, based on the doctrine of tribal immunity, of her complaint alleging that PCI Gaming Authority d/b/a Creek Entertainment Center; Wind Creek Casino and Hotel ("Wind Creek"); Creek Indian Enterprises, LLC; and the Tribe (hereinafter referred to collectively as "the tribal defendants") were responsible for the death of her son Benjamin.

Benjamin was injured during the early morning hours of March 1, 2013, when, as a passenger, he was involved in an automobile accident following a high-speed police chase on a portion of a county roadway that traverses land held by the Tribe in Escambia County. The driver of the vehicle in which Benjamin was a passenger, Roil Hadley, had consumed alcohol while he was a patron at Wind Creek during the evening of February 28, 2013, and the early morning hours of March 1, 2013.

On May 16, 2013, Harrison, as mother and next friend of Benjamin, sued the tribal defendants and two individuals, Lee Fountain and Kaweta Coon (hereinafter referred to collectively as "the defendants"). The complaint alleged that the tribal defendants were responsible for negligently or wantonly serving alcohol to Hadley despite his being visibly intoxicated and asserted, among other claims, claims against the tribal defendants under Alabama's Dram Shop Act, § 6-5-71, Ala. Code 1975.

On June 21, 2013, the defendants filed a motion to dismiss the complaint. In their motion, the defendants argued that they were protected from liability by the doctrine of tribal sovereign immunity, that the circuit court lacked subject-matter jurisdiction because the Tribe's court possessed exclusive jurisdiction over Harrison's claims, and that Harrison's claims against Fountain and Coon were due to be dismissed for failing to state a cause of action against them. On October 7, 2013, the circuit court granted the motion to dismiss as to the tribal defendants "based on the sovereign immunity of these defendants"; it denied the motion as to Fountain and Coon. On October 16, 2013, the circuit court certified its judgment of dismissal as final pursuant to Rule 54(b), Ala. R. Civ. P., and stayed the case as to Fountain and Coon. Harrison appealed.

While this appeal was pending, Benjamin died as a result of the injuries he sustained in the accident. Subsequently, Harrison filed a suggestion of death and a motion to substitute Harrison, as the administrator of Benjamin's estate, as the proper party in this action.

Standard of Review

"In Newman v. Savas, 878 So.2d 1147 (Ala. 2003), this Court set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

" 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.'
" 878 So.2d at 1148-49."

Hall v. Environmental Litig. Grp., P.C., 157 So.3d 876, 879 (Ala. 2014).

Discussion

The three appeals concerning the Tribe and/or its related entities that this Court decides today present two intertwined issues: (i) the adjudicative jurisdiction, or what is usually referred to simply as the "subject-matter jurisdiction," of the tribal and state courts over this dispute and (ii) the alleged sovereign immunity of the tribal defendants. Both issues are grounded in the same fundamental principles regarding the nature of sovereignty and in corollary notions as to the reach of a sovereign's adjudicative authority and the extent of its immunity, as discussed in our opinion issued today in another of the three appeals. See Rape, 250 So.3d at 553-55 (Part III.B.). Unlike the trial court in Rape, the circuit court in this case issued an opinion stating a reason for its decision to dismiss the plaintiff's complaint: sovereign immunity. We therefore turn first to that issue.

Meaningful United States Supreme Court jurisprudence regarding tribal "sovereign immunity" dates back only 20 to 30 years, specifically to the 1991 case of Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), and to the 1998 case of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

Three earlier cases are sometimes referenced as seminal, the earliest of these being Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), but the Court's opinion, written by Chief Justice Marshall, did not address the issue of immunity. To the contrary, the case held that the Indian tribes were not the equivalent of foreign nations (and therefore could not sue in federal court under the constitutional provision authorizing "foreign states" to access federal courts under certain circumstances). See Cherokee Nation, 30 U.S. (5 Pet.) at 18-19.

Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291 (1919), is more commonly referred to as the seminal case recognizing tribal sovereign immunity. But the case simply did not do this. Instead, it made clear that the tribe avoided liability in that case because it actually had been dissolved, Turner, 248 U.S. at 358, and because the law recognized no cause of action against the tribe for failing to prevent some tribal members from vandalizing the property of other tribal members. The only mention of "immunity" was to explain what was not the reason for its decision.

The last of the three earlier cases sometimes mistakenly referenced as providing the foundation for tribal immunity is the 1940 case of United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940) (" U.S.F. & G."). U.S.F. & G., however, provides no substantive discussion of the issue. Sovereign immunity is merely assumed, with no reference to any Supreme Court precedent other than bare citations to Cherokee and Turner. See 309 U.S. at 512-13 and notes 10 and 1. The case involved a contract claim by a mining company on a contract it had negotiated with a representative of the tribes.

In Oklahoma Tax Commission, the Supreme Court did suggest that the doctrine of tribal sovereign immunity was "originally enunciated" in Turner, before noting that it has been reiterated in other cases. 498 U.S. at 510. Again, however, the Court's opinion offers no substantive rationale for the doctrine or its genesis. For the first time, however, the Court in Oklahoma Tax Commission did offer a rationale for persisting in the doctrine. The Court explained that it was unwilling to alter or abandon the doctrine because, in the years since the Court had previously referenced it, Congress had not acted to alter or eliminate it. Still, the Court acknowledged that

"Oklahoma ... urges this Court to construe more narrowly, or abandon entirely, the doctrine of tribal sovereign immunity.... At the very least, Oklahoma proposes that the Court modify [ U.S.F. & G. ], because trib al business activities such as cigarette sales are now so detached from traditional tribal interests that the tribal-sovereignty doctrine no longer makes sense in this context. The sovereignty doctrine, it maintains, should be limited to the tribal courts and the internal affairs of tribal government, because no purpose is served by insulating tribal business ventures from the authority of the States to administer their laws."

498 U.S. at 510 (emphasis added). The Court declined Oklahoma's invitation, again based solely on the "Congressional-inaction" rationale.

This brings us to 1998 and the Court's decision in Kiowa Tribe of Oklahoma. In the same mode as previous decisions, Kiowa upheld the doctrine of tribal immunity, focusing on the inaction of Congress. In so doing, however, the Court's opinion was unique in its own self-criticism and self-doubt, both as to the propriety of the result being achieved and how its jurisprudence had come to that point.

The majority opinion in Kiowa starts with a confession as to the weakness of the precedents upon which it relied, noting that those precedents "rest on early cases that assumed immunity without extensive reasoning." 523 U.S. at 753. The majority in Kiowa candidly conceded that the doctrine of tribal immunity "developed almost by accident," 523 U.S. at 756 (emphasis added). As the Court explained:

"The doctrine is said by some of our own opinions to rest on the Court's opinion in Turner v. United States, 248 U.S. 354 (1919). See, e.g., [Oklahoma Tax Comm'n v. Citizen Band] Potawatomi [Indian Tribe of Oklahoma, 498 U.S. 505] at 510 [ (1991) ]. Though Turner is indeed cited as authority for the immunity, examination shows it simply does not stand for that proposition.... The Court stated: 'The fundamental obstacle to recovery is not the immunity of a sovereign to suit, but the lack of a substantive right to recover the damages resulting from failure of a government or its officers to keep the peace.' Id., at 358. 'No such liability existed by the general law.' Id., at 357.
"The quoted language is the heart of Turner. It is, at best, an assumption of immunity for the sake of argument, not a reasoned statement of doctrine. One cannot even say the Court or Congress assumed the congressional enactment was needed to overcome tribal immunity. There was a very different reason why Congress had to pass the Act [of 1908, authorizing claims against the Creek Nation]: 'The tribal government had been dissolved. Without authorization from Congress, the Nation could not then have been sued in any court; at least without its consent.' Id., at 358. The fact of tribal dissolution, not its sovereign status, was the predicate for the legislation authorizing suit. Turner, then, is but a slender reed for supporting the principle of tribal sovereign immunity."

523 U.S. at 756-57 (emphasis added).

Despite the fundamental deficiencies in precedent and rationale recognized by the Court itself, the majority in Kiowa nonetheless chose to adhere to the doctrine, expressly "declin[ing] to revisit our case law and choos[ing] to defer to Congress," which the Court noted had chosen not to act in this area. 523 U.S. at 760, 118 S.Ct. 1700. Further still, it overlooked the fact that, because the doctrine itself is of judicial creation, Bay Mills, 572 U.S. at ----, 134 S.Ct. at 2045 (Scalia, J., dissenting), it is in a category where the dubious notion of "legislation by silence" has its weakest rationale. See, e.g., United States v. Wells, 519 U.S. 482, 496, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (observing that the Supreme Court has " 'frequently cautioned that "[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law" ' " (quoting NLRB v. Plasterers' Local Union No. 79, 404 U.S. 116, 129-30, 92 S.Ct. 360, 30 L.Ed.2d 312 (1971), quoting in turn Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) )); Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. ----, 137 S.Ct. 1002, 1015, 197 L.Ed.2d 354 (2017) (noting that " '[c]ongressional inaction lacks persuasive significance' in most circumstances" (quoting Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) )).

Finally, the Kiowa Court expressed concerns as to the propriety and fairness of perpetuating the doctrine of tribal sovereign immunity in modern times, and on that basis even went so far as to suggest, as we note today in Wilkes, --- So.3d at ----, that there might be "a need to abrogate" it:

"The doctrine of tribal immunity came under attack a few years ago in [Oklahoma Tax Commission v. Citizen Band] Potawatomi [Indian Tribe ofOklahoma, 498 U.S. 505 (1991) ]. The petitioner there asked us to abandon or at least narrow the doctrine because tribal businesses had become far removed from tribal self-governance and internal affairs. We retained the doctrine, however, on the theory that Congress had failed to abrogate it in order to promote economic development and tribal self-sufficiency. Id., at 510. The rationale, it must be said, can be challenged as inapposite to modern, wide-ranging tribal enterprises extending well beyond traditional tribal customs and activities. Justice Stevens, in a separate opinion, criticized tribal immunity as 'founded upon an anachronistic fiction' and suggested it might not extend to off-reservation commercial activity. Id., at 514-15 (concurring opinion).
"There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance. This is evident when tribes take part in the Nation's commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians. See Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ; Potawatomi, supra ; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In this economic context, immunity can harm those who are unaware that they are dealing with a tribe, who do not know of tribal immunity, or who have no choice in the matter, as in the case of tort victims.
"These considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule. Respondent does not ask us to repudiate the principle outright, but suggests instead that we confine it to reservations or to noncommercial activities. We decline to draw this distinction in this case, as we defer to the role Congress may wish to exercise in this important judgment.
"....
"In light of these concerns, we decline to revisit our case law and choose to defer to Congress. Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Congress has not abrogated this immunity, nor has petitioner waived it, so the immunity governs this case...."

523 U.S. at 757-60 (emphasis added).

As we do in Wilkes, we take particular note of the Court's comment that tribal sovereign immunity especially hurts those "who have no choice in the matter." 523 U.S. at 758. We note as well the Court's limitation of its holding in Kiowa to "suits on contract." 523 U.S. at 760.

In a dissenting opinion in Kiowa, Justice Stevens echoed the majority's criticisms of its own decision. He offered an organized and insightful affirmation of the "accidental" "development" of tribal-immunity law, including the inappositeness of tribal immunity to modern tribes and the unfairness it creates for tort victims and others who have "no opportunity to negotiate for a waiver" through "voluntary contractual relationships." 523 U.S. at 766.

Justice Stevens concluded his opinion with "compelling reasons [that] favor the exercise of judicial restraint," including this final one:

"[T]he rule is unjust. This is especially so with respect to tort victims who have no opportunity to negotiate for a waiver of sovereign immunity; yet nothing in the Court's reasoning limits the rule to lawsuits arising out of voluntary contractual relationships. Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct."

523 U.S. at 764-66 (emphasis added).

Sixteen years after Kiowa, in his dissent in Michigan v. Bay Mills Indian Community, 572 U.S. 782, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014), Justice Thomas reviewed circumstances and cases he believed had served in the intervening years to highlight the unfairness of the Kiowa decision:

"In the 16 years since Kiowa, the commercial activities of tribes have increased dramatically. This is especially evident within the tribal gambling industry. Combined tribal gaming revenues in 28 States have more than tripled-from $8.5 billion in 1998 to $27.9 billion in 2012. National Indian Gaming Commission, 2012 Indian Gaming Revenues Increase 2.7 Percent (July 23, 2013), online at http://www.nigc.gov/ LinkClick.aspx?fileticket=Fhd5shyZ1fM%3D[6] ... But tribal businesses extend well beyond gambling and far past reservation borders. In addition to ventures that take advantage of on-reservation resources (like tourism, recreation, mining, forestry, and agriculture), tribes engage in 'domestic and international business ventures' including manufacturing, retail, banking, construction, energy, telecommunications, and more. Graham, An Interdisciplinary Approach to American Indian Economic Development, 80 N.D. L. Rev. 597, 600-604 (2004). Tribal enterprises run the gamut: they sell cigarettes and prescription drugs online; engage in foreign financing; and operate greeting cards companies, national banks, cement plants, ski resorts, and hotels. Ibid.; see also, e.g., The Harvard Project on American Indian Economic Development, The State of the Native Nations 124 (2008) (Ho-Chunk, Inc., a tribal corporation of the Winnebago Tribe of Nebraska, operates 'hotels in Nebraska and Iowa,' 'numerous retail grocery and convenience stores,' a 'tobacco and gasoline distribution company,' and 'a temporary labor service provider'); Four Fires, San Manuel Band of Mission Indians, http://www. sanmanuel-nsn.gov/fourfires.php.html (four Tribes from California and Wisconsin jointly own and operate a $43 million hotel in Washington, D.C.). These manifold commercial enterprises look the same as any other-except immunity renders the tribes largely litigation-proof.
"As the commercial activity of tribes has proliferated, the conflict and inequities brought on by blanket tribal immunity have also increased. Tribal immunity significantly limits, and often extinguishes, the States' ability to protect their citizens and enforce the law against tribal businesses. This case is but one example: No one can seriously dispute that Bay Mills' operation of a casino outside its reservation (and thus within Michigan territory) would violate both state law and the Tribe's compact with Michigan. Yet, immunity poses a substantial impediment to Michigan's efforts to halt the casino's operation permanently. The problem repeats itself every time a tribe fails to pay state taxes, harms a tort victim, breaches a contract, or otherwise violates state laws, and tribal immunity bars the only feasible legal remedy. Given the wide reach of tribal immunity, such scenarios are commonplace. See, e.g., Oneida Indian Nation of New York v. Madison Cty., 605 F.3d 149, 163 (C.A.2 2010) (Cabranes, J., joined by Hall, J., concurring) ('The holding in this case comes down to this: an Indian tribe can purchase land (including land that was never part of a reservation); refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed'); see also Furry v. Miccosukee Tribe of Indians of Fla., 685 F.3d 1224 (C.A.11 2012) (Tribe immune from a suit arising out of a fatal off-reservation car crash that alleged negligence and violation of state dram shop laws); Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288 (C.A.10 2008) (tribal officials and a tobacco-products manufacturer were immune from a suit brought by a national distributor alleging breach of contract and interstate market manipulation); Tonasket v. Sargent, 830 F.Supp.2d 1078 (E.D. Wash. 2011) (tribal immunity foreclosed an action against the Tribe for illegal price fixing, antitrust violations, and unfair competition), aff'd, 510 Fed.Appx. 648 (C.A.9 2013) ; Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F.Supp.2d 1131 (N.D. Okla. 2001) (tribal immunity barred a suit alleging copyright infringement, unfair competition, breach of contract, and other claims against a tribal business development agency).
"In the wake of Kiowa, tribal immunity has also been exploited in new areas that are often heavily regulated by States. For instance, payday lenders (companies that lend consumers short-term advances on paychecks at interest rates that can reach upwards of 1,000 percent per annum) often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality. Martin & Schwartz, The Alliance Between Payday Lenders and Tribes: Are Both Tribal Sovereignty and Consumer Protection at Risk? 69 Wash. & Lee L. Rev. 751, 758-759, 777 (2012). Indian tribes have also created conflict in certain States by asserting tribal immunity as a defense against violations of state campaign finance laws. See generally Moylan, Sovereign Rules of the Game: Requiring Campaign Finance Disclosure in the Face of Tribal Sovereign Immunity, 20 B.U. Pub. Interest L.J. 1 (2010).
"In sum, any number of Indian tribes across the country have emerged as substantial and successful competitors in interstate and international commerce, both within and beyond Indian lands. As long as tribal immunity remains out of sync with this reality, it will continue to invite problems, including de facto deregulation of highly regulated activities; unfairness to tort victims; and increasingly fractious relations with States and individuals alike."

572 U.S. at ----, 134 S.Ct. at 2050-52 (Thomas, J., dissenting) (footnote omitted; emphasis added). Cases and scenarios such as those described above led one of the concurring Justices in Kiowa to confess that he had seen enough and to opine that the Court, with his concurrence, had made a "glaringly obvious" "mess" and that it was up to the Court to clean it up. Bay Mills, 572 U.S. at ----, 134 S.Ct. at 2045 (Scalia, J., dissenting).

Nonetheless, over the strenuous dissents of Justices Scalia, Thomas, Ginsburg, and Alito, the Supreme Court in Bay Mills declined to overrule Kiowa on the facts it had before it. The majority in Bay Mills began with the following statement: "Indian tribes are ' "domestic dependent nations" ' that exercise 'inherent sovereign authority.' " Bay Mills, 572 U.S. at ----, 134 S.Ct. at 2030 (quoting Oklahoma Tax Commission, 498 U.S. at 509, quoting in turn Cherokee Nation, supra). From there, the majority yet again deferred to congressional inaction as a rationale for perpetuating the jurisprudence of tribal immunity. As against this rationale, however, the Court did note that it had never employed the doctrine against one who had no alternative to judicial relief, see 572 U.S. at ---- n.8, 134 S.Ct. at 2036 n.8, indicating that it understood the potential unfairness of that circumstance. Bay Mills did not involve such a plaintiff.

In concert with its reliance on congressional inaction, the main opinion in Bay Mills relied heavily on the doctrine of stare decisis. In so doing, however, it described Kiowa as a decision in which the Court had declined "to make any exception for suits arising from a tribe's commercial activities." 572 U.S. at ----, 134 S.Ct. at 2031. Further, in an effort to validate it reliance on stare decisis, it advanced for the first time these notions: that prior decisions like Kiowa could be taken into account by those "negotiating their contracts and structuring their transactions" with tribes and that, "[a]s in other cases involving contract and property rights, concerns of stare decisis are thus 'at their acme.' " 572 U.S. at ----, 134 S.Ct. at 2036 (emphasis added). See also Wilkes, --- So.3d at ---- (to same effect).

In the same vein, the Court in Bay Mills opined that congressional inaction had confirmed an intent "to retain tribal immunity (at least for now ) in a case like this one," 572 U.S. at ----, 134 S.Ct. at 2039 (emphasis added), which apparently is a reference to a case brought by a state or other party with the ability to negotiate a waiver or otherwise protect its interests in some of the other ways, which the Court described as available to Michigan.

Finally, the Court also offered that none of its off-reservation, tribal-immunity cases had ever involved "a tort victim" or other plaintiff "who has no alternative way to obtain relief" and that such a case might provide a reason for a different outcome:

"Adhering to stare decisis is particularly appropriate here given that the State, as we have shown, has many alternative remedies: It has no need to sue the Tribe to right the wrong it alleges. See supra, at 2034-2035. We need not consider whether the situation would be different if no alternative remedies were available."

572 U.S. at ---- n.8, 134 S.Ct. at 2036 n.8 (emphasis added).

As indicated, Justice Thomas's impassioned dissent expounded upon the themes that the Court's expansion of tribal immunity in Kiowa, reiterated in Bay Mills, was "unsupported by any rationale for that doctrine, inconsistent with the limits on tribal sovereignty, and an affront to state sovereignty." 572 U.S. at ----, 134 S.Ct. at 2045 (Thomas, J., dissenting). Justice Thomas observed:

"[ Kiowa ], wrong to begin with, has only worsened with the passage of time. In the 16 years since Kiowa, tribal commerce has proliferated and the inequities engendered by unwarranted tribal immunity have multiplied. Nevertheless, the Court turns down a chance to rectify its error. Still lacking a substantive justification for Kiowa's rule, the majority relies on notions of deference to Congress and stare decisis. Because those considerations do not support (and cannot sustain) Kiowa's unjustifiable rule and its mounting consequences, I respectfully dissent."

572 U.S. at ----, 134 S.Ct. at 2045-46 (Thomas, J., dissenting).

Justice Thomas's dissent was grounded in the intrinsic attributes of sovereignty and sovereign immunity described in our decision today in Rape, 250 So.3d at 553-55 (Part III.B.), as well as many of the concerns expressed by commentators and courts in the wake of Kiowa. See, e.g., Bay Mills, 572 U.S. at ----, 134 S.Ct. at 2045-55 (Thomas, J., dissenting).

Reflecting the concerns expressed above, and in the interest of justice, this Court today in the case of Wilkes, supra, declines to extend the doctrine of tribal immunity to actions in tort, in which the plaintiff has no opportunity to bargain for a waiver and no other avenue for relief. Based on the foregoing and on our holding in Wilkes, we similarly conclude that the judgment entered by the trial court in the present case-extending to the tribal defendants immunity from responsibility for the life-ending injuries to Benjamin allegedly caused by their negligent or wanton serving of alcohol to a visibly intoxicated patron-is due to be reversed. We remand this case to the circuit court to take up the related issue, which was not addressed by the circuit court, of the asserted lack of adjudicative, or "direct" subject-matter, jurisdiction by the circuit court. In so doing, we note that the tribal defendants take the position that the claim in this case arose on Indian land. According to the complaint, however, Benjamin's life-ending injuries occurred on Jack Springs Rd., which is Escambia County Road 1, a fact that may bear on the whether adjudicative authority over this case lies in tribal or state courts. Compare Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

In addition, on remand, the circuit court should consider whether subject-matter jurisdiction is affected by the fact that the alleged tortious conduct of the tribal defendants entails a violation of Alabama's statutory and regulatory scheme for the sale of alcohol in Alabama, a scheme to which Congress has expressly declared the Tribe to be subject. See 18 U.S.C. § 1611.

See generally Ala. Code 1975, Title 28 (including § 28-10-5 (requiring the Alabama Alcoholic Beverage Control Board ("the ABC Board") to receive proof annually of, and to certify annually, the compliance by licensees with "the requirements of this chapter," including so-called "dram shop" regulations) and § 28-3A-24 (providing for hearings and adjudications by the ABC Board of violations of Alabama's statutory and regulatory licensing scheme, subject to review in state courts)); Ala. Admin. Code (ABC Board), including Regs. 20-X-2-.03, 20-X-5-.14 and 20-X-6-.02(4) (making unlawful "on-premises" sales to visibly intoxicated patrons); Ala. Code 1975, § 6-5-71 (providing for private civil-enforcement actions for damages based the sale of liquors or alcoholic beverages "contrary to the provisions of law"). Compare Rice v. Rehner, 463 U.S. 713, 724, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983) (holding that 18 U.S.C. § 1161 is an express congressional enactment that "divested the Indians" of power to regulate in the arena of alcohol sales and that, as to such regulation, Indians do not "possess the ususal accoutrements of tribal self-government"); see also Bittle v. Bahe, 192 P.3d 810, 823 (Okla. 2008) (upholding state court jurisdiction over a dram-shop action brought as part of the "extant jurisprudence" under Oklahoma's "comprehensive statutory scheme" regarding the sale of alcohol and, "[c]onsistent with Rice v. Rehner, ... reject[ing] the Tribe's argument that [ 18 U.S.C.] § 1161 does not authorize the state courts to exercise jurisdiction over the Tribe"), and Cossey v. Cherokee Nation Enters., LLC, 212 P.3d 447, 456 (Okla. 2009) (holding that a tribal court is not a court of general jurisdiction and that "[i]ts jurisdiction could be asserted in matters involving non-Indians only when their activities on Indian lands are activities that may be regulated by the Tribe"), both cases overruled by Sheffer v. Buffalo Run Casino, PTE, Inc., 315 P.3d 359 (Okla. 2013). See also our opinion released today in Rape, 250 So.3d at 553-54 (discussing, inter alia, Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), and the fact that the exercise of tribal powers, even as to matters of "tribal self-government" and "internal relations," is subject to express congressional enactments, as well as the natural correlation between adjudicative authority and regulatory authority).

Conclusion

For the foregoing reasons, the circuit court's judgment of dismissal is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Bolin, Parker, Murdock, Wise, Bryan, and Sellers, JJ., concur.

Stuart, C.J., and Main, J., concur in the result.

Shaw, J., recuses himself.

      The record indicates that the accident occurred on "Jack Springs Rd.," which is County Road 1.

      Harrison's complaint alleges that Fountain and Coon are Poarch Creek Indian police officers employed by the Poarch Band of Creek Indians.

      Between the Court's decision in U.S.F. & G. and its 1991 opinion in Oklahoma Tax Commission, two decisions stating that tribes are entitled to "sovereign immunity" were decided by the Supreme Court. But again, the Court offered no substantive discussion in support of the doctrine in either case but, instead, simply presumed it as a fact. Thus, in Puyallup Tribe, Inc. v. Department of Game of Washington, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977), the Court cited U.S.F. & G., but did not discuss the matter. And in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Court similarly cited Turner, U.S.F. & G., and Puyallup in stating that the doctrine had previously been recognized.

      In a special concurrence, Justice Stevens pointedly wrote that "[t]he doctrine of sovereign immunity is founded upon an anachronistic fiction." 498 U.S. at 514 (Stevens, J., dissenting) (citing Nevada v. Hall, 440 U.S. 410, 414-16, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979) ).

      Justice Stevens's dissent was grounded in an appreciation of the intrinsic nature of sovereignty and sovereign immunity, see Rape, 250 So.3d at 553-55 (Part III.B.), and of how the doctrine of tribal immunity as recognized by the Court is disconsonant with that nature, with essential traditions of the common law, and with the sovereign authority of states in our American system of federalism. Among other things, Justice Stevens explained:
      " 'The doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign.' Nevada v. Hall, 440 U.S. 410, 414 (1979). In the former category, the sovereign's power to determine the jurisdiction of its own courts and to define the substantive legal rights of its citizens adequately explains the lesser authority to define its own immunity. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). The sovereign's claim to immunity in the courts of a second sovereign, however, normally depends on the second sovereign's law. Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). An Indian tribe's assertion of immunity in a state judicial proceeding is unique because it implicates the law of three different sovereigns: the tribe itself, the State, and the Federal Government."
      523 U.S. at 760-61 (Stevens, J., dissenting). Justice Stevens repeats the majority's concession that "the doctrine of tribal immunity from judicial jurisdiction 'developed almost by accident' " and reviews in detail the lack of a rationale for the doctrine in the two cases to which "[i]ts origin is attributed"-Turner and U.S.F. & G. Id. at 761.

      On the date this opinion was released, these Web sites could no longer be accessed on the Internet.

      The Court also took note of a few statutes over the years in which Congress had referenced the immunity doctrine, see Bay Mills, 572 U.S. at ---- n.11, 134 S.Ct. at 2039 n.11 (listing some statutes and citing Potawatomi, 498 U.S. at 510, for others), but none, as Justice Thomas countered, in which Congress had itself affirmatively legislated the existence of the doctrine, 572 U.S. at ----, 134 S.Ct. at 2052 (Thomas, J., dissenting) ("To this day, Congress has never granted tribal sovereign immunity in any shape or form ....").

      Following the filing of the parties' initial briefs in this case, this Court in a separate case rejected a challenge to a decision of the Montgomery Circuit Court declining to apply the doctrine of tribal sovereign immunity to the Tribe or to PCI Gaming Authority in a dram-shop action. See Ex parte Poarch Band of Creek Indians, 155 So.3d 224 (Ala. 2014) (no opinion, but with special writing). In her reply brief, Harrison makes note of this decision, including Chief Justice Moore's special concurrence, 155 So.3d at 225, examines the State statutory and regulatory scheme governing the sale of alcohol within the State of Alabama, and asks this Court to remand the case to the circuit court to reconsider the jurisdictional issue of tribal sovereign immunity in light of the same. The need for a such a remand as to the issue of immunity per se is pretermitted by our decision today in Wilkes, but in light of the concerns raised by Harrison and given the intertwined, jurisdictional nature of both issues, the circuit court on remand should consider Alabama's statutory and regulatory scheme for the licensing of alcoholic-beverage sales as it relates to the issue of tribal adjudicatory authority.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Janice PICKENS v. ESTATE OF Donald Harrison FENN, deceased
    1160202
    Supreme Court of Alabama.
    September 29, 2017
    J. Robert Faulk of McDowell, Faulk & McDowell, LLC, Prattville; and George P. Walthall, Jr., Prattville, for appellant.
    Jim L. DeBardelaben, Montgomery, for appellee.
   SELLERS, Justice.

Janice Pickens appeals from the order of the Elmore Probate Court denying the admission to probate of a will on the basis that the will was not signed by at least two witnesses as required by § 43-8-131, Ala. Code 1975. We reverse and remand.

I. Facts

Donald Harrison Fenn died on June 27, 2016. Fenn left a will, purportedly executed by him on November 24, 2015, leaving all of his property to Pickens and naming her as his personal representative.

On July 6, 2016, Jackson B. Dismukes, one of Fenn's friends, filed a petition for letters of administration, asserting that Fenn had died with assets in Alabama but that he had no will. On that same day, the probate court granted Dismukes's petition and issued him letters of administration for Fenn's estate.

On July 7, 2016, Pickens filed a petition seeking to probate the will purportedly executed by Fenn. Pickens further moved the probate court to revoke the letters of administration it had issued to Dismukes. Dismukes challenged the admission of the will to probate on the basis that the will did not contain the signature of a second witness as required by § 43-8-131.

On October 31, 2016, the probate court conducted a bench trial for the purpose of determining whether the will could be admitted to probate and, more specifically, whether the will complied with the requirements of § 43-8-131. The will was in writing; it was signed by Fenn; it contained the signature of one attesting witness, Tracy Stroud Causey; and it contained the signature and seal of Janet M. Ingram, a duly commissioned notary public. It was Pickens's position at the hearing that even though Ingram signed the notarization of Fenn's and Causey's signatures in her capacity as a notary public, her signature on the will satisfied the statutory requirements of a witness under § 43-8-131. The probate court heard the testimony of both Causey and Ingram. Ingram testified that, on November 24, 2015, Fenn came into the law office where she was working and inquired whether she would notarize "something" for him. Ingram stated that she took Fenn to her office, where he handed her a document. Ingram testified that she did not know that the document was a will but that she did notice that the document required the signature of a witness; accordingly, Ingram called Causey to her office to witness Fenn sign the document. Ingram admitted that the document contained a signature line for a second attesting witness; however, she stated that she did not recall seeing the additional signature line at the time she had Causey sign the document as a witness. Finally, Ingram testified that she did not sign the document as a witness but, rather, in her capacity as a notary public. Causey testified that she witnessed Fenn sign the document and that she witnessed Ingram notarize the document.

After hearing the testimony, the probate court entered an order refusing to admit the will to probate, on the basis that Ingram had signed the will in her capacity as a notary, not as a witness, and that, therefore, the requirement of § 43-8-131 calling for two witnesses to a will was not satisfied. Pickens appealed. See § 12-22-21, Ala. Code 1975.

II. Standard of Review

"This Court reviews de novo [a probate] 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).

III. Discussion

A. The Will

Pages two and three of the will containing the signatures of Fenn, Causey, and Ingram read as follows:

"IN WITNESS WHEREOF, I, Donald Harrison Fenn, the Testator, sign my name to this instrument as my last will and testament this 24 day of Nov. 201 5, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and testament, and that I sign it willingly, and that I execute it as my free and voluntary act and deed for the purposes therein expressed, and that I am at least 19 years of age, of sound mind, and under no constraint, duress, fraud [or] undue influence.
"[/s/ Donald Harrison Fenn].
"We, _________________________ and Tracy Stroud Causey, the witnesses, sign our names to this instrument, and, being first duly sworn, do each hereby declare to the undersigned authority that Donald Harrison Fenn, the Testator, signed and executed this instrument as his last will and testament and that he signed it willingly, and that each of us, in the presence and hearing of the Testator and each other, hereby signs this will as witness to the Testator's signing, and that to the best of each of our knowledge the Testator is at least 19 years of age, of sound mind and under no constraint, duress, fraud or undue influence.
"[Signature of Tracy Stroud Causey ]
"having an address at
"----Main Street Millbrook, AL 36054
"_________________________
"having an address at
"_________________________
"STATE OF ALABAMA
"COUNTY OF ELMORE
"Subscribed, sworn and acknowledge[d] before me by the said Donald Harrison Fenn, Testator, and subscribed and sworn to before me by the said Donald Fenn and Tracy Causey as witness, this 24th day of Nov. 2015.
"/s/Janet M. Ingram
"Notary Public
"My commission expires: [seal]."

B. Analysis

Section 43-8-131 governs the formal requirements for the execution of a will:

"Except as provided within section 43-8-135, [Ala. Code 1975,] every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will."

(Emphasis added.) The statute requires (1) that the will be in writing and (2) that it be signed by the testator (or by someone in the testator's presence and at his or her direction). In this case, it is undisputed that the will is in writing and that it is signed by Fenn. Therefore, the first two requirements of the statute are satisfied. The statute also requires that a will be signed by at least two persons who witnessed the testator performing one of three acts: signing the will, acknowledging the document as his will, or acknowledging his signature on the will. In this case, Causey signed as an attesting witness and Ingram signed in her capacity as a notary public. Whether a notary who signs a will in his or her capacity as a notary can be considered a valid witness to a will under § 43-8-131 is a question of first impression for this Court.

We begin our analysis by noting that "[t]he polestar of statutory construction is to ascertain and give effect to the Legislature's intent in enacting a statute." Ex parte Berryhill, 801 So.2d 7, 9-10 (Ala. 2001). In this case, the Commentary to § 43-8-131 makes clear the intent of the statute, which is to validate wills meeting the minimum formalities of the statute:

"The formalities for execution of a witnessed will have been reduced to a minimum. Execution under this section normally would be accomplished by signature of the testator and of two witnesses; each of the persons signing as witnesses must 'witness' any of the following: the signing of the will by the testator, an acknowledgment by the testator that the signature is his, or an acknowledgment by the testator that the document is his will. ... There is no requirement that the testator publish the document as his will, or that he request the witnesses to sign, or that the witnesses sign in the presence of the testator or of each other. The testator may sign the will outside the presence of the witnesses, if he later acknowledges to the witnesses that the signature is his or that the document is his will, and they sign as witnesses. There is no requirement that the testator's signature be at the end of the will; thus, if he writes his name in the body of the will and intends it to be his signature, this could satisfy the statute. The intent is to validate wills which meet the minimum formalities of the statute."

(Emphasis added.) It is also noteworthy to add that, when the validity of a will is being challenged, the trial court or, in this case, the probate court, is guided by the following general principle: "Instead of indulging suspicion or conjecture to destroy the validity of wills, the courts are bound to support them against mere suspicion or conjecture; bound to support them, when any theory or hypothesis maintaining them, is as probable as that which is suggested to defeat them." Barnewall v. Murrell, 108 Ala. 366, 388, 18 So. 831, 841 (1895). Lastly, the purpose of requiring the signature of two witnesses "is to remove uncertainty as to the execution of wills and safeguard testators against frauds and impositions." Culver v. King, 362 So.2d 221, 222 (Ala. 1978).

With these above principles in mind, we now address the issue whether Ingram's signature on the will in her capacity as a notary public can constitute the signature of a person witnessing the execution of the will for purposes of § 43-8-131. In resolving this issue, this Court need look no further than the plain language of the statute. It is well settled that

"[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."

IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala. 1992). Section 43-8-131 is not ambiguous-it states that the will shall be signed by at least two "persons" each of whom "witnessed" either "the signing or the testator's acknowledgment of the signature or of the will." Section 43-8-134, Ala. Code 1975, states that "[a]ny person generally competent to be a witness may act as a witness to a will." (Emphasis added.) The term "persons" as used in § 43-8-131 is a very broad, rather than restrictive, term. There is simply nothing in the statute that would prohibit a notary public from serving as a witness. Indeed, the fact that Ingram signed the will in her capacity as a notary public is immaterial to her qualification to serve as a witness to the will because § 43-8-131 does not require that the signatures of the testator or the witnesses be notarized. The important fact here is not the capacity in which Ingram executed the document, i.e., as a notary public, but rather that she observed Fenn's signing of the document and affixed her signature thereto. We see no reason to exclude Ingram as a witness simply because she signed in her official capacity as a notary public. Admittedly, Ingram did not testify that she was signing as a witness. Rather, she testified that Fenn asked her to "notarize something." Nevertheless, although Ingram may not have intended to act as an official witness, she nonetheless observed Fenn sign the document and then, by signing, accomplished the purpose and statutory dictates of § 43-8-131. To conclude otherwise would frustrate rather than further the intent of the statute, which, as previously indicated, is to validate wills that meet the minimum formalities of the statute. Moreover, our holding is consistent with the public policy of this State in carrying out the intent of the testator and, more specifically, adhering to the presumption that Fenn, who possessed a will and sought to have it notarized, did not intend to die intestate. Ide v. Harris, 261 Ala. 484, 75 So.2d 129 (1954).

IV. Conclusion

We conclude that Ingram's signature, albeit in her capacity as a notary public, is sufficient to meet the statutory requirements of a witness under § 43-8-131, Ala. Code 1975. Accordingly, we reverse the order of the probate court and remand this matter to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Murdock, J., concurs in the rationale in part and concurs in the result.

Shaw, J., concurs in the result.

MURDOCK, Justice (concurring in the rationale in part and concurring in the result).

I concur in the main opinion except for the manner in which Weaver v. Grant, 394 So.2d 15 (Ala. 1981), and the now repealed § 43-1-130, Ala. Code 1975, are distinguished at the outset of footnote 4. See 251 So.3d at 39 n.4. It appears to me that Janet M. Ingram's notarization of the will would have been sufficient as a witnessing of the same under § 43-1-130. I would distinguish Weaver not on any differences between the language of § 43-1-130 and the language of the current statute, § 43-8-131, Ala. Code 1975, but based on the fact, as the Court noted, that the party whose witnessing was in question in Weaver had simply written down his name as proposed executor as part of "notes" he prepared for a friend "to ... pass[ ] on to [a] drafting attorney" who was to prepare the friend's will, there being no intention for the writing of his name to constitute any sort of "witnessing" of some instrument. 394 So.2d at 17.

      Pickens was a certified nurse assistant; she had known Fenn for approximately nine years; and she had moved into his house to take care of him during his illness. At the time of his death, Fenn was survived by two adult daughters-Elizabeth Ann DeBardelaben of Texas and Sarah E. Whitby of Pennsylvania. In March 1984, Fenn had allowed his former wife's second husband to adopt Sarah.

      Section 43-8-132, Ala. Code 1975, governs the execution of a self-proved will. Pickens concedes that the will does not meet the requirements for a self-proved will; thus, the issue whether the will is self-proving is not before us. See Ex parte Ricks, 164 So.3d 1141, 1144 n. 2 (Ala. 2014) ("Self-proving wills are 'self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will.' § 43-8-132, Ala. Code 1975." (Emphasis omitted.)

      Under the previous statute governing the execution of wills, § 43-1-130, Ala. Code 1975 (repealed in 1982), a will was required, among other things, to be "'attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.'" See Anderson v. Griggs, 402 So.2d 904, 907 (Ala. 1981) (quoting statute).

      We note that Dismukes cites Weaver v. Grant, 394 So.2d 15 (Ala. 1981), for the proposition that a person witnessing a will must posses an intent to act as a witness under § 43-8-131. Weaver, however, was decided in 1981, at which time § 43-1-130 (repealed in 1982) was in effect. Section 43-8-131, a part of the new probate code, reduces the formalities for the execution of a will, and requires only that the will "shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will." Accordingly, under § 43-8-131, the intent of a person witnessing a will is not essential to the validity of its execution. See also, e.g., Brown v. Traylor, 210 S.W.3d 648, 672 (Tex. App. 2006) ("A notary may be considered, and can be competent to be, a subscribing witness to a will."); In re Estate of Teal, 135 S.W.3d 87, 91 (Tex. App. 2002) ("We now hold that, under the facts in this case, the notary, although she did not intend to sign as a subscribing witness, did in fact serve as a subscribing witness. ... Because there is no requirement that a will be notarized, [the notary's] signature served no purpose other than as a witness."); Simpson v. Williamson, 611 So.2d 544, 546 (Fla. Dist. Ct. App. 1992) ("It is well established that the execution of a will may be valid, even though a required witness signs in a capacity other than that of a witness."); Payne v. Payne, 54 Ark. 415, 415, 16 S.W. 1, 1-2 (1891) ("The evidence shows ... a literal compliance with the law in every respect, except that the testator asked [the justice of the peace] to put his official certificate to the will, instead of formally asking him to sign it as a witness. ... [W]e can see no reason, in law or justice, why the effect of an ordinary attestation should be denied to it. Whether testifying through his certificate, or as a witness in a probate proceeding, [the justice of the peace] was asked to bear witness to the fact that the writing had been subscribed by and was the will of the testator. That is the ordinary office of a witness, and as such [the justice of the peace] signed the will."); and Franks v. Chapman, 64 Tex. 159, 161 (1885) ("The fact that ... the clerk of the county court, when called upon by [the testator] to witness the will, attached thereto his official certificate of the acknowledgment of the due execution of the will by the testator, does not affect the validity of his signature to the will as a witness.").


author: BOLIN, Justice.

text:
    EX PARTE LOCKLEAR CHRYSLER JEEP DODGE, LLC, and Locklear Automotive Group, Inc.
    (In re: Rhonda Cook v. Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive, Inc.)
    Ex parte Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive Group, Inc.
    (In re: James McKinney v. Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive Group, Inc.)
    Ex parte Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive Group, Inc.
    (In re: James Daniel Parker v. Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive Group, Inc.)
    1160372 1160373 1160374
    Supreme Court of Alabama.
    September 29, 2017
    John Martin Galese and Cassandra Harris Kalupa of Galese & Ingram, P.C., Birmingham, for petitioners.
    Christopher J. Zulanas, James W. Moss, and Ashley L. Crank of Friedman, Dazzio, Zulanas & Bowling, P.C., for respondents.
   BOLIN, Justice.

Locklear Chrysler Jeep Dodge, LLC, and Locklear Automotive Group, Inc. (hereinafter referred to collectively as "Locklear"), seek a writ of mandamus ordering the Bibb Circuit Court to vacate certain discovery orders in actions filed against Locklear by Rhonda Cook, James McKinney, and James Daniel Parker (hereinafter referred to collectively as "the purchasers"), who allege that they were victims of identity theft by a Locklear employee.

Facts and Procedural History

In order to explore the possibility of financing the purchase of an automobile from Locklear, the purchasers each completed a credit application. The credit applications contained personal information, including Social Security numbers, birth dates, mother's maiden names, income, etc. In connection with the purchase, each purchaser signed an arbitration agreement titled "Binding Pre-Dispute Arbitration Agreement" ("the arbitration agreement"); its operative language is as follows:

"In connection with the undersigned's acquisition or attempted acquisition of the below described vehicle, by lease, rental, purchase or otherwise, the undersigned and the dealer whose name appears below, stipulate and agree, in connection with the resolution of any dispute arising out of, or relating to, resulting from or concerning any contracts or agreements, or agreements or contracts to be entered into by the parties, all alleged representations, promises and covenants, issues concerning compliance with any state or federal law or regulation, and all relationships resulting therefrom, as follows: That the vehicle, services, and products (hereinafter 'products') involved in the acquisition or attempted acquisition are regulated by the laws of the United States of America; and/or, that the contract(s) and agreements entered into by the parties concerning said products evidence transactions and business enterprises substantially involving and affecting interstate commerce sufficiently to invoke the application of the Federal Arbitration Act, 9 U.S.C. § 1, etseq. The undersigned agree that all disputes not barred by applicable statutes of limitations, resulting from, arising out of, relating to or concerning the transaction entered into or sought to be entered into (including but not limited to: any matters taking place either before or after the parties entered into this agreement, including any prior agreements or negotiations between the parties; the terms of this agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties; the past, present and future condition of any products at issue; the conformity of the products to any contract description; the representations, promises, undertakings, warranties or covenants made by the dealer, its agents, servants, employees, successors and assigns, or otherwise dealing with the products; any lease, sale or rental terms or the terms of credit and/or financing in connection therewith; or compliance with any state or federal laws; any terms or provisions of any insurance sought to be purchased or purchased simultaneously herewith; any terms or provisions of any extended service to be purchased or purchased herewith) shall be submitted to BINDING
ARBITRATION, pursuant to the provisions of 9 U.S.C. § 1, etseq. and according to the Commercial Dispute Resolution procedures and/or Consumer Protocol (depending on the amount in controversy) of the American Arbitration Association (the AAA) then existing in the county where the transaction was entered into or sought to be entered into, except as follows: (a) In all disputes in which the matter in controversy (including compensatory and punitive damages, fees and costs) is more than $10,000 but less than $75,000.00, one arbitrator shall be selected in accordance with the AAA's Consumer Protocol. In all disputes in which the matter in controversy (including compensatory and punitive damages and fees and costs) is $75,000.00 or more, the parties to this agreement shall select an arbitrator under the AAA's Commercial Rules and shall select one arbitrator from a list of at least 5 suitable arbitrators supplied by the AAA in accordance with and utilizing the AAA strike method. (b) An arbitrator so selected shall be empowered to enter an award of such damages, fees and costs, and grant such other relief, as is allowed by law. The arbitrator has no authority or jurisdiction to enter any award that is not in conformance with controlling law. Any party to this agreement who fails or refuses to arbitrate in accordance with the terms of this agreement may, in addition to any other relief awarded, be taxed by the arbitrator with the costs, including reasonable attorney's fees, of any other party who had to resort to judicial or other relief in compelling arbitration. In the event the dealer and the undersigned customer(s) have entered into more than one arbitration agreement concerning any of the matters identified herein, the undersigned customers and the dealer agree that the terms of this arbitration agreement shall control disputes between and among them. Any provision in this Agreement found to be in conflict with any procedure promulgated by the AAA which shall affect its administration of disputes hereunder, shall be considered severed herefrom. With respect to the process of arbitration under the AAA Commercial Rules or Consumer Protocol, the undersigned customer(s) and the dealer expressly recognize that the rules and protocol and the terms of this agreement adequately protect their abilities to fully and reasonably pursue their respective statutory and other legal rights. If for any reason the AAA fails or refuses to administer the arbitration of any dispute brought by any party to this agreement, the parties agree that all disputes will then be submitted to binding arbitration before the Better Business Bureau (the BBB) serving the community where the Dealer conducts business, under the BBB binding arbitration rules.... This agreement shall survive any termination, cancellation, fulfillment, or non-fulfillment of any other contract, covenant or agreement related to the products acquired or sought to be acquired from the Dealer, including, but not limited to cancellation due to lack of acceptable financing or funding of any retail installment contract or lease. Further information about arbitration can be obtained directly from the AAA or from a review of AAA's Commercial Dispute Resolution Procedures and Consumer Protocol, and/or the BBB's Binding Arbitration Rules, copies of which are available without charge for review from the AAA and the BBB. THE UNDERSIGNED HAVE AGREED TO WAIVE THE UNDERSIGNED(S)' RIGHT TO A TRIAL BY JUDGE OR JURY IN ALL DISPUTES OVER $10,000.00 AND THAT ARBITRATION SHALL BE IN
LIEU OF ANY CIVIL LITIGATION IN ANY COURT AND IN LIEU OF ANY TRIAL BY JUDGE OR JURY FOR ALL CLAIMS OVER $10,000.00. THE TERMS OF THIS AGREEMENT AFFECT LEGAL RIGHTS. IF YOU DO NOT UNDERSTAND ANY PROVISION OF THIS AGREEMENT OR THE COSTS, ADVANTAGES OR DISADVANTAGES OF ARBITRATION, SEEK INDEPENDENT ADVICE AND/OR REVIEW THE WRITTEN CONSUMER AND/OR COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND PROTOCOLS AND/OR CONTACT THE AAA OR BBB BEFORE SIGNING. BY SIGNING YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY EACH OF THE PROVISIONS, COVENANTS, STIPULATIONS AND AGREEMENTS SET FORTH AND REFERENCED HEREINABOVE.
"DESCRIPTION OF PRODUCTS/SERVICES: ________________"

(Capitalization and emphasis in original.)

In the blank line following the words "DESCRIPTION OF PRODUCTS/SERVICES" typically was printed the year and model of the vehicle to be purchased as well as the vehicle-identification number of that vehicle. Below that were lines for the date to be filled in and lines for signatures of the customer and a dealer representative. Each of the purchasers signed the arbitration agreement in December 2015.

In July and August 2016, each of the purchasers sued Locklear, as well as other defendants. Each purchaser alleged that he or she was the victim of identity theft by an employee of Locklear's who used the personal information from the purchaser's credit application to purchase thousands of dollars in cellular-telephone services. They asserted claims of negligence, wantonness, invasion of privacy, conversion, fraud, tort of outrage, civil conspiracy, violations of Alabama's Consumer Identity Protection Act, and breach of fiduciary duty. Shortly after filing their lawsuits, the purchasers sought general discovery, including interrogatories, requests for production of documents, requests for admissions, and notices of deposition. The general discovery requests regarded matters related to the purchasers' substantive claims.

In response to the three actions, Locklear filed a motion in each action seeking an order compelling arbitration and staying the action. The trial court held a hearing on the motions, but did not rule on them.

Subsequently, each of the purchasers filed a motion to compel Locklear's responses to their discovery requests and to deem admitted their requests for admissions. The trial court granted the purchasers' motions. Locklear then filed three petitions for mandamus review, which this Court consolidated for the purpose of writing one opinion. While the mandamus petitions were pending, the trial court granted Locklear's motions to stay discovery.

Standard of Review

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

"Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions."

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003).

Discussion

Locklear argues that, although discovery may be allowed while a motion to compel arbitration is pending, that discovery is limited to whether the parties to the arbitration agreement must arbitrate their claims. Locklear argues that the trial court exceeded its discretion in allowing general discovery regarding the merits of the purchasers' claims. Locklear argues that permitting general discovery to proceed in a case that may be subject to arbitration could frustrate one of the purposes underlying arbitration, namely, the inexpensive and expedient resolution of disputes.

Locklear cites Ex parte Kenworth of Birmingham, Inc., 789 So.2d 227 (Ala. 2000), in support of its position. In Kenworth, the plaintiffs sued Kenworth and its salesman, asserting claims arising out of the purchase of a truck. They alleged that the salesman had represented that the truck was new, when, in fact, the truck had been used and damaged, had been repaired, had had parts replaced, and had been repainted to appear new. Kenworth and the salesman answered the complaint, raising several affirmative defenses and asserting that the plaintiffs' claims were subject to arbitration. They moved to stay the proceedings and to compel arbitration, attaching a copy of a "Buyer's Order" that contained an arbitration provision. In response to the motion to compel, the plaintiffs asserted that they did not recall an arbitration provision in the paperwork underlying the sale of the truck and that the signature on the paperwork was not theirs.

On the day of the hearing on the motion to stay and to compel arbitration, Kenworth and the salesman moved in open court to continue the hearing and requested leave to conduct discovery. The trial court rescheduled the hearing on the motion to compel arbitration and ordered that discovery would not be stayed pending the hearing, nor would discovery be limited to the issue of the genuineness of the signature on the buyer's order containing the arbitration provision.

Both sides in Kenworth filed notices of depositions. A week before the scheduled depositions, Kenworth and the salesman moved for what they called a "reconsideration" and to stay discovery, arguing that they had made a prima facie showing that the arbitration provision was enforceable. The trial court denied that motion and further stated that " 'there is no "prima facie showing that the arbitration agreement is enforceable." ' " 789 So.2d at 229. The court then reset the hearing on the motion to compel arbitration. Kenworth and the salesman petitioned this Court for the writ of mandamus before the hearing could be held. They argued that the trial court exceeded its discretion by allowing unrestricted discovery before a resolution of the question whether the plaintiffs must arbitrate their claims. This Court agreed, holding that, although the trial court did not err in allowing the parties to conduct discovery, it did err in failing to restrict that discovery to the question whether the plaintiffs had agreed to arbitrate their dispute with Kenworth and the salesman.

We note that, in the instant case, this Court is not reviewing a trial court's order denying a motion to compel arbitration; the trial court has not yet ruled on Locklear's motion to compel. It is the trial court's general discovery orders that are being challenged. Here, as in Kenworth, the trial court exceeded its discretion by allowing general discovery before the resolution of the issue whether the purchasers must arbitrate their claims. In Ex parte Jim Burke Automotive, Inc., 776 So.2d 118 (Ala. 2000), this Court explained that, although it was not error for the trial court to allow the parties to conduct discovery prior to arbitration, it was error not to limit the discovery to the question whether the plaintiff agreed to arbitrate his claims and that such limited discovery did not constitute a waiver of the right to arbitrate. Here, the purchasers have not requested discovery on an issue related to the arbitration agreement; instead, they sought general discovery regarding the merits of their claims. In granting the purchasers' requests for general discovery before the resolution of Locklear's arbitration motions, the trial court exceeded its discretion. Furthermore, because it would be unfair to require Locklear conduct merit-based discovery prior to deciding the arbitration issue, and because Locklear could not be afforded the relief it seeks after that discovery has been conducted, Locklear does not have an adequate remedy by ordinary appeal. Accordingly, we grant the petitions and issue the writs, directing the trial court to vacate its orders requiring Locklear to respond to the purchasers' discovery requests, including the requests for admissions and to sit for depositions.

1160372-PETITION GRANTED; WRIT ISSUED.

1160373-PETITION GRANTED; WRIT ISSUED.

1160374-PETITION GRANTED; WRIT ISSUED.

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


author: THOMPSON, Presiding Judge.

text:
    Robert Shannon CARSWELL v. ALABAMA BOARD OF PARDONS AND PAROLES and the State of Alabama
    2160389
    Court of Civil Appeals of Alabama.
    April 21, 2017 Rehearing Denied July 21, 2017 Certiorari Denied September 15, 2017
    Alabama Supreme Court 1160957
    Aimee C. Smith, Montgomery and Thomas M. Goggans, Montgomery, for appellant.
    Meridith H. Barnes. asst. atty. gen. and chief legal counsel, Alabama Board of Pardons and Paroles, for appellees.
   THOMPSON, Presiding Judge.

Robert Shannon Carswell, an inmate in the custody of the Alabama Department of Corrections, appeals from a judgment of the Montgomery Circuit Court ("the trial court") dismissing his action against the Alabama Board of Pardons and Paroles and the State of Alabama (hereinafter collectively referred to as "the board"). In his action, which he characterized as one seeking a writ of habeas corpus, Carswell challenged the constitutionality of § 13A-8-52(a), Ala. Code 1975, which sets forth the penalty for a conviction for the criminal offense of "pharmacy robbery," which is defined in § 13A-8-51(2), Ala. Code 1975. Section 13A-8-52(a) provides that, upon a conviction for pharmacy robbery, "the offender shall be imprisoned at hard labor for not less than 10 years nor more than 99 years and shall be ineligible for consideration for parole, probation or suspension of sentence."

The record before us indicates that Carswell was charged in Tallapoosa County with six counts of pharmacy robbery, among other offenses. Pursuant to a plea agreement, Carswell was convicted of one count of pharmacy robbery, for which he was sentenced to 25 years in prison, and one count of assault, for which he was sentenced to 4 years in prison. In his action, Carswell asserted that, because inmates with convictions for pharmacy robbery are barred from parole consideration, they are treated differently from inmates convicted of all other types of robbery, in violation of the Equal Protection Clause of the United States Constitution.

On October 7, 2016, the board filed a motion to dismiss Carswell's action on the grounds that a petition for a writ of habeas corpus was not the correct vehicle to challenge the constitutionality of § 13A-8-52(a), that Montgomery County was not the proper venue for the action, and that Carswell had failed to demonstrate that he was similarly situated to inmates convicted of other types of robberies and, further, that he had failed to show that the government does not have a rational basis for the different treatment.

On October 25, 2016, the trial court entered a judgment dismissing Carswell's action. In the judgment, the trial court stated that it was treating the petition for a writ of habeas corpus as a declaratory-judgment action. The trial court went on the conclude that Carswell "has fail[ed] to show that his 'pharmacy robbery' conviction makes him similarly situated as others convicted of other type 'robberies', and [Carswell] has failed to show that there is no rational basis for the State to treat 'pharmacy robbery' differently tha[n] other 'robberies.' " The State Judicial Information System ("SJIS") indicates that the action was dismissed without prejudice on October 25, 2016.

On November 2, 2016, Carswell appealed the dismissal of his action to the Alabama Court of Criminal Appeals, which transferred the appeal to this court. Because the action is in the nature of a declaratory-judgment action, we transferred the appeal to the Alabama Supreme Court based on lack of jurisdiction. Our supreme court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Carswell asserts that there is no legitimate reason for the prohibition of parole for "pharmacy robbers" when there is no prohibition of parole for other robbers of any other type of business, individual, or property. He also contends that there is no rational basis for the prohibition of parole set forth in § 13A-8-52(a). The argument Carswell makes in his appellate brief is based entirely on the merits of whether that statute violates the Equal Protection Clause. In his reply brief to this court, Carswell reiterates that this court should address the merits of whether § 13A-8-52(a) violates the Equal Protection Clause. However, based on the limited record before us, which consists only of Carswell's petition and the board's motion to dismiss and does not include affidavits or any other form of evidence from either party, this court cannot conduct a meaningful review of the merits of Carswell's action.

Carswell makes no argument to this court regarding the propriety of the judgment of dismissal under Rule 12(b), Ala. R. Civ. P. In other words, he makes no argument regarding whether his claim was sufficiently pleaded, whether, in his initial pleading, he stated a claim for which relief can be granted, or whether the trial court's dismissal was premature given the procedural posture of this matter, and he does not make any other argument as to whether the dismissal itself was proper. Any argument that Carswell could have made on appeal asserting that the trial court erred in dismissing his action is deemed waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) ("[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived."); see also Brady v. State Pilotage Comm'n, 208 So.3d 1136, 1142-43 (Ala. Civ. App. 2015).

Because Carswell asks this court to review the merits regarding the constitutionality of § 13A-8-52(a) but not the propriety of the dismissal of his action, this court has no choice but to affirm the trial court's judgment.

AFFIRMED.

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

      Section 13A-8-51(2) provides that "[a] person commits the offense of 'pharmacy robbery' under this article if in the course of committing a theft of any controlled substance as defined in Section 20-2-2[, Ala. Code 1975,] such person violates Section 13A-8-41[, Ala. Code 1975]." Section 13A-8-41[, Ala. Code 1975,] sets forth the elements of first-degree robbery and defines it as a Class A felony.

      After Carswell filed his notice of appeal, the trial court entered a judgment dated November 9, 2016. The only difference between the November 9, 2016, judgment and the October 25, 2016, judgment is the typeface and the date. There is no explanation in the record for the "entry" of the second judgment, which is not recorded in SJIS. We conclude that the November 9, 2016, judgment is of no consequence to this appeal.