author: PER CURIAM.

text:
    EX PARTE Cherry Grace SIMS and Sharon K. Doviet, as guardian ad litem for D.S. and L.S., minor children
    (In re: Cherry Grace Sims v. Douglas Lawrence Sims)
    2170301
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Dinah P. Rhodes, Huntsville; Joan-Marie Sullivan, Huntsville; and Emily G. Peake, for petitioner Cherry Grace Sims.
    Sharon K. Doviet, Huntsville, guardian ad litem.
    William P. Burgess, Jr., and Christopher S. Kuffner of Maynard, Cooper & Gale, P.C., Huntsville, for respondent.
   PER CURIAM.

Cherry Grace Sims ("the mother") and Sharon K. Doviet, the guardian ad litem appointed to represent the children of the mother and Douglas Lawrence Sims ("the father"), filed a petition for a writ of mandamus seeking relief from a November 14, 2017, order of the Madison Circuit Court ("the trial court"). This is the second time these petitioners have been before this court.

In Ex parte Sims, 246 So.3d 155, 156-57 (Ala. Civ. App. 2017), this court set forth the relevant history as follows:

"The mother was divorced in 2012 from [the father]. Two children were born of the parties' marriage, and, as a result of the 2012 divorce judgment, the mother and the father shared joint legal and joint physical custody of the children. At the time of the entry of the order that is the subject of this mandamus petition, the two children, who are twins, were 10 years old.
"On August 29, 2016, the mother filed a petition to modify custody of the parties' children in which she sought an award of sole physical custody of the children. In September 2016, the father answered and counterclaimed, also seeking an award of sole physical custody of the parties' children.
"On January 12, 2017, the mother filed a motion for the appointment of a guardian ad litem to represent the children. In that motion, the mother alleged that the children were being treated by a psychologist. She argued that the children's records of treatment with the psychologist are privileged and that the children lack the authority to waive that privilege because they are minors. The mother sought the appointment of a guardian ad litem for the purpose of determining whether the children could or should waive that privilege. On that same day, January 12, 2017, the trial court entered an order in which it granted the mother's motion and appointed Doviet to serve as the children's guardian ad litem. ...
"On May 18, 2017, the mother filed a motion to continue the hearing on the merits, which was scheduled for four days later, on May 22, 2017. In that motion to continue, the mother alleged that, two days earlier, she had spoken with Doviet and had learned that Doviet 'had not made any attempt' to obtain or review the psychologist's records pertaining to the children and that, therefore, Doviet was 'unable to make any informed decision whether to waive the psychologist-patient privilege' for the children so that the mother could present evidence to the trial court regarding 'the treatment of the children, the children's diagnoses, and the parents' interaction with the psychologist.' The mother argued that the May 22, 2017, hearing on the merits should be postponed so that Doviet could have time to make a determination regarding whether to waive the privilege; the mother maintained that she was 'unable to properly prepare for trial' unless Doviet, as the children's guardian ad litem, made the determination that the privilege should be waived.
"On May 19, 2017, the trial court entered an order denying the mother's motion to continue the May 22, 2017, hearing. ...
"....
"On June 30, 2017, the mother and Doviet ... timely filed in this court a joint petition for a writ of mandamus."

In denying the petition for a writ of mandamus in Ex parte Sims, supra, this court concluded that the mother and Doviet had failed to demonstrate that any party had asserted the psychotherapist-patient privilege on behalf of the children or that Doviet had requested or been denied the opportunity to review the psychological/counseling records for the children. Ex parte Sims, 246 So.3d at 158. This court also determined that the order from which that petition for a writ of mandamus had arisen merely advised the parties as to the trial court's probable ruling if Doviet had sought in the trial court the relief addressed in the petition for a writ of mandamus filed in this court. Id.

This court entered its certificate of judgment in Ex parte Sims, supra, on September 13, 2017.

On November 9, 2017, Doviet filed a motion in the trial court seeking an order allowing her to review the confidential psychological records of Dr. Bridget Floyd, the licensed psychologist who has treated the children. In that motion, Doviet alleged that the children were being treated by a psychologist and that the psychologist's testimony might be relevant to the custody dispute. Doviet did not allege or attach any evidence to her motion indicating that the psychologist had denied any request made by Doviet or either parent. Doviet merely requested that the trial court grant her permission to review the psychologist's records so that she could determine whether it was in the children's best interests to waive the psychotherapist-patient privilege. The father filed an opposition to Doviet's motion, and the mother filed a response in support of Doviet's motion.

On November 14, 2017, the trial court entered an order denying Doviet's November 9, 2017, motion. As the basis for that ruling, the trial court stated that it had determined that a guardian ad litem could not waive a minor's privilege and that, for that reason, it would not allow a guardian ad litem to waive the children's privilege.

The trial court granted a motion filed by the mother to stay the proceedings below pending the disposition of a petition for a writ of mandamus filed with respect to the November 14, 2017, order. The mother and Doviet timely filed this petition for a writ of mandamus in this court.

The current petition for a writ of mandamus is not substantially different from the one filed earlier in Ex parte Sims, supra. In this proceeding, Doviet, rather than the mother, moved the trial court for permission to allow Doviet to review the children's confidential psychological records. Again, however, there is no indication in the materials before this court that "Doviet was, or would have been had she asked, denied the opportunity to review the children's psychological/counseling records, and there is no indication that the privilege was asserted or that Doviet attempted to waive it on behalf of the children." Ex parte Sims, 246 So.3d at 158.

"Alabama cases often address ripeness in the context of whether a case is justiciable, or appropriate for judicial review. That is, the case must concern a dispute that is ' " 'a real and substantial controversy admitting of specific relief through a [judgment].' " ' Ex parte Bridges, 925 So.2d 189, 193 (Ala. 2005) (holding that declaratory relief is not available for an 'anticipated controversy' (quoting Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003), quoting in turn Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) ) )."

Ex parte Riley, 11 So.3d 801, 806-07 (Ala. 2008). See also State Farm Mut. Auto. Ins. Co. v. Brown, 894 So.2d 643, 649 (Ala. 2004) ("A controversy is justiciable when present legal rights are affected, not when a controversy is merely anticipated."). Essentially, Doviet's motion is merely a request that the trial court declare the rights of the parents and children with regard to the psychotherapist-patient privilege.

The current petition for a writ of mandamus does not present to this court a justiciable controversy and is not ripe for review. See Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 354 n. 7 (Ala. 2008) (Murdock, J., concurring in the result) (discussing the concept of ripeness in the context of a justiciable controversy and stating that ripeness focuses "upon the 'concreteness' of the plaintiff's injuries"). The mother and Doviet have failed to demonstrate a clear legal right to the relief they have requested, and, therefore, we deny the petition.

PETITION DENIED.

All the judges concur.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE MERCEDES-BENZ U.S. INTERNATIONAL, INC.
    (In re: Gregory K. Nix v. Mercedes-Benz U.S. International, Inc.)
    2170209
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Steven T. McMeekin of Wainwright, Pope & McMeekin, PC, Birmingham, for petitioner.
    Samuel Maples and Paisley Newsome of Maples, Tucker & Jacobs, LLC, Birmingham, for respondent.
   DONALDSON, Judge.

Mercedes-Benz U.S. International, Inc. ("MBUSI"), petitions this court for a writ of mandamus directing the Jefferson Circuit Court ("the trial court") to enter an order transferring the underlying workers' compensation action to the Tuscaloosa Circuit Court. For the reasons set forth below, we deny the petition.

Facts and Procedural History

MBUSI produces certain models of Mercedes-Benz vehicles. On August 22, 2017, Gregory K. Nix filed in the trial court a complaint against MBUSI seeking workers' compensation benefits. Nix claimed that he was injured in the course of his employment as an assembly worker at MBUSI's facility in Tuscaloosa County. On September 22, 2017, MBUSI filed an answer, alleging, among other things, that venue was improper in Jefferson County, and a motion to change venue, contending that venue was proper only in Tuscaloosa County but that, even if venue was proper in Jefferson County, the venue should be changed to Tuscaloosa County under the doctrine of forum non conveniens.

On September 25, 2017, Nix filed a response opposing the motion to change venue. In his response, he asserted that he was a resident of Jefferson County and that MBUSI does business in Jefferson County as well as in Tuscaloosa County. Nix submitted a copy of property-tax records from Jefferson County indicating that his address was in Jefferson County and a copy of a Web page from the Alabama Secretary of State's Web site indicating "Birmingham, Alabama" as MBUSI's principal address. Nix asserted that MBUSI's products are sold in Jefferson County through Mercedes-Benz of Birmingham ("the automobile dealership") and that some of MBUSI's major parts suppliers such as Kamtek, Inc., are located in Jefferson County. In support of his assertions, Nix referred to MBUSI's Web site and attached news articles regarding Kamtek. Nix also attached to his response an affidavit in which he testified that all medical treatments for the claimed injury were received in Jefferson County and that potential trial witnesses reside in Jefferson County.

On September 29, 2017, MBUSI filed a supplement to its motion to change venue. In the supplement, MBUSI argued that the automobile dealership and Kamtek are not its agents through which it does business in Jefferson County. MBUSI asserted that the circumstances of its relationship with Kamtek do not constitute that of an agent for venue purposes and that it has no connection with the automobile dealership in Jefferson County because all the automobiles MBUSI produces are sold directly to a separate legal entity, Mercedes-Benz USA, LLC ("MBUSA"), which has sole control and contact with the automobile dealership and other dealerships. MBUSI attached to its supplement the affidavit of Richard Clementz, general counsel for MBUSI, in which he testified, in relevant part:

"2. MBUSI is a corporation that is organized under the laws of the State of Alabama, with its headquarters, principal place of business and principal office located at 1 Mercedes Drive, Vance, Alabama, located in Tuscaloosa County. MBUSI's current registered agent for service of process is attorney Edward R. Christian of Burr & Forman, LLP, in Jefferson County, Alabama. However, Mr. Christian is not an employee of MBUSI and MBUSI maintains no office at Burr & Forman.
"3. To the extent the Secretary of State website lists 'Birmingham, AL' as MBUSI's 'principal address,' such listing is inaccurate. MBUSI has no corporate offices in Jefferson County, Alabama.
"4. MBUSI's manufacturing facility is located at 1 Mercedes Drive, Vance, Tuscaloosa County, Alabama. The plaintiff's employment with the defendant was located at MBUSI's manufacturing facility in Tuscaloosa County, and any alleged work injury would have occurred there as well.
"5. The vehicles manufactured by MBUSI for sale in the United States are all sold to Mercedes-Benz USA, LLC ('MBUSA'). MBUSA is a separate corporate entity with its principal place of business in Atlanta, Georgia.
"6. MBUSI is not involved in, and does not control distribution or sale of Mercedes-Benz vehicles to consumers anywhere in the world, including the United States. For all vehicles sold in the United States, MBUSA takes delivery, title and possession of the vehicles and MBUSA transports, delivers and sells all vehicles in the United States.
"7. MBUSI has no relationship, contractual or otherwise, with any Mercedes-Benz dealership located in Alabama, nor does MBUSI have control over the actions, rights or obligations of any such dealers.
"8. Kamtek is an auto supplier which provides some parts for MBUSI. Kamtek is a separate and unrelated corporation. Upon information and belief, Kamtek is owned by a Canadian Corporation. The parts supplied by Kamtek are delivered by Kamtek to MBUSI at 1 Mercedes Drive, Vance, AL. MBUSI does not take delivery of parts from Kamtek or any other supplier, at any location other than 1 Mercedes Drive, Vance, AL.
"9. MBUSI does not do business by agent in Jefferson County, Alabama. The Mercedes Benz Automobile dealership located in Hoover, Alabama is not affiliated with, owned by, or franchised from MBUSI. MBUSI does not sell vehicles to the Mercedes Benz automobile dealership located in Hoover, Alabama, and has no contractual relationship with the automobile dealership in Hoover, Alabama. MBUSI has no ownership interest in Kamtek, and does not accept delivery of parts from Kamtek in Jefferson County, Alabama."

In its supplement, MBUSI further argued that the doctrine of forum non conveniens required a transfer of the action to the Tuscaloosa Circuit Court. MBUSI asserted that Tuscaloosa County was a more convenient forum because, it stated, potential witnesses to the alleged injury and Nix's supervisors were employed in Tuscaloosa County and the alleged injury occurred there. MBUSI also asserted that Tuscaloosa County has a substantial interest in the action because it is the county in which the alleged injury occurred and that the only connection Jefferson County has to the action is Nix's residency there.

On October 13, 2017, the trial court entered an order denying MBUSI's motion to change venue. On November 21, 2017, MBUSI filed the present petition for a writ of mandamus, and Nix filed an answer.

Standard of Review

" 'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.' Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala. 2000). 'Mandamus is a drastic and extraordinary writ, to be issued 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 Integon Corp., 672 So.2d 497, 499 (Ala. 1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998).
" 'The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995)."

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002).

Discussion

MBUSI first contends that the action should be transferred to the Tuscaloosa Circuit Court on the basis that Jefferson County is an improper venue. In a workers' compensation case, § 6-3-7, Ala. Code 1975, applies to the determination of proper venue involving a corporate employer. See § 25-5-1(18), Ala. Code 1975 (defining "court" in the Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, as "[t]he circuit court that would have jurisdiction in an ordinary civil action involving a claim for the injuries or death in question ...."); Ex parte Adams, 11 So.3d 243, 247 (Ala. Civ. App. 2008) (applying § 6-3-7 to the venue determination of a workers' compensation case involving a corporate employer). Section 6-3-7(a) provides:

"All civil actions against corporations may be brought in any of the following counties:
"(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
"(2) In the county of the corporation's principal office in this state; or
"(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or
"(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action."

We note that Nix's complaint alleges that he incurred the injury in Tuscaloosa County. Therefore, Tuscaloosa County would be a proper venue pursuant to § 6-3-7(a)(1). However, Nix brought the action in Jefferson County, and that venue is improper only if it does not meet any of the four conditions provided in § 6-3-7(a).

MBUSI argues that, although Nix resides in Jefferson County, venue was not proper in Jefferson County pursuant to § 6-3-7(a)(3) because, MBUSI asserts, it does not do business by agent in that county.

" ' " '[A] corporation "does business" in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created.' " ' Ex parte Pike Fabrication[, Inc.], 859 So.2d [1089,] 1093 [ (Ala. 2002) ] (quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala. 1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d 1356, 1358 (Ala. 1993) )."

Ex parte Hibbett Sporting Goods, Inc., 228 So.3d 1008, 1014 (Ala. Civ. App. 2017). The materials before the trial court showed that MBUSI purchased parts for automobile production from Kamtek, an entity located in Jefferson County. In Ex parte GTE Automatic Electric, Inc., 448 So.2d 385, 387 (Ala. Civ. App. 1984), this court held that, for the purposes of a venue determination, a trial court reasonably found that a defendant corporation ("GTE") did business by agent in the county in which its parts supplier ("Webco") was located, based on evidence showing the following:

"Webco, a tool and die manufacturer, has done business with GTE for over twelve years, making piece parts inter alia for GTE. During this twelve-year period, agents of GTE visited Webco's plant at least twice a month where they would work with Webco's employees, assist Webco's engineers and discuss the business relationship between Webco and GTE. GTE frequently sent representatives to Webco's plant to assist in resolving casting problems that arose with new products. GTE's plant manager, superintendent and purchasing agent all made annual inspection tours of Webco.
"GTE supplied Webco with certain tools and equipment necessary for manufacturing the parts ordered by GTE. The tools and equipment were maintained and stored at Webco for the purpose of filling orders by GTE as they came in. GTE frequently supplied Webco with the necessary raw materials to make the ordered parts. The president and general manager of Webco testified in deposition that over $2,600,000 worth of such business was done between Webco and GTE."

Although this court discussed the relationship between GTE and its parts supplier in detail in order to determine whether the relationship constituted doing business by agent, such a detailed examination does not appear to be required under our supreme court's holding in Ex parte Scott Bridge Co., 834 So.2d 79 (Ala. 2002). In that case, our supreme court held that a defendant corporation did business by agent through a parts supplier in a specific county, stating:

"Scott Bridge notes that it is in the business of constructing bridges and it argues that because it has not built a bridge in Chambers County, it has not 'done business by agent' there. The business of Scott Bridge, however, should not be considered so narrowly. To fulfill its principal corporate function of building bridges, Scott Bridge must purchase parts, tools, and equipment with which to perform that principal corporate function. Bond asserts, and Scott Bridge does not refute, that Scott Bridge buys from businesses located in Chambers County supplies that cost in excess of $50,000 a year.
"....
"... Scott Bridge 'purchased handrail pipe, handrail posts, protection anchors, supports, and shoes which are used in Scott Bridge's business [of bridge building].' (Trial court's order denying the motion for a change of venue.) Scott Bridge could presumably have purchased these materials elsewhere, and thus fulfilled its corporate purpose entirely outside of Chambers County, but spending more than $50,000 per year in Chambers County on materials necessary to bridge construction is sufficient to constitute 'doing business' in Chambers County."

Id. at 81-82.

MBUSI asserts that Scott Bridge is distinguishable because it conducts its primary business function of manufacturing automobiles at a single location in Tuscaloosa County as opposed to Scott Bridge's business of constructing bridges in multiple counties in Alabama. MBUSI further asserts that it does not do business in Jefferson County because Kamtek delivers and MBUSI receives its parts in Tuscaloosa County. However, it appears that, under the holding in Scott Bridge, the only inquiry required is whether MBUSI regularly transacted with a supplier in Jefferson County to purchase parts that were used to fulfill a primary business function. See Ex parte Elliott, 80 So.3d 908, 914 (Ala. 2011) ("The evidence showed that Scott Bridge had purchased from vendors in Chambers County in excess of $50,000 worth of supplies necessary for building bridges; [the supreme court] held that that constituted doing business in Chambers County."). As asserted by MBUSI, the manufacturing of automobiles is a primary business function of the corporation. MBUSI does not refute that it chose to do business with Kamtek, that it regularly purchases parts used in its automobile manufacturing from Kamtek, or that Kamtek is located in Jefferson County. Based on the materials submitted to us and the holding in Scott Bridge, we must conclude that MBUSI conducted business by agent in Jefferson County pursuant to § 6-3-7(a)(3).

MBUSI urges this court to overrule Scott Bridge and argues that it cannot be considered to have conducted business in Jefferson County based on the facts of the case. In Ex parte West Fraser, Inc., this court addressed a petitioner's challenge to the holding in Scott Bridge, stating: "Although [the petitioner] makes compelling arguments as to why that decision should be overruled, 'this court is bound by the decisions of our supreme court. Ala. Code 1975, § 12-3-16. We are not at liberty to overrule or modify those decisions.' " 129 So.3d 286, 292 (Ala. Civ. App. 2013) (quoting TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala. Civ. App. 2003), citing in turn Thompson v. Wasdin, 655 So.2d 1058 (Ala. Civ. App. 1995) ). As in Ex parte West Fraser, we are compelled by Scott Bridge to uphold the trial court's denial of MBUSI's motion to change venue, and we pretermit further discussion of MBUSI's arguments regarding that issue.

MBUSI also contends that the doctrine of forum non conveniens compels a transfer of the action from Jefferson County to Tuscaloosa County.

"With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

§ 6-3-21.1(a), Ala. Code 1975. As previously noted, venue was also appropriate in Tuscaloosa County. Therefore, we must determine whether MBUSI met its burden of proving that a transfer of the action was mandated.

"A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified 'in the interest of justice.' Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala. 2001) ; Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998). A party may show that either or both of these factors require a transfer."

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala. 2008).

In its petition, MBUSI argues that Tuscaloosa County is a significantly more convenient venue than Jefferson County.

"When venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference. Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala. 1994). However, where the defendant presents evidence indicating that the chosen venue will be inconvenient for him, the trial court has the discretion to transfer the case to a more convenient forum. The purpose of the doctrine of forum non conveniens is to 'prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.'
Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala. 1995) ; Ex parte Townsend, 589 So.2d 711, 714 (Ala. 1991). The burden of proof in seeking a transfer under this doctrine rests squarely on the shoulders of the defendant. Ex parte New England Mut. Life Ins. Co., 663 So.2d at 956. The defendant must show that his inconvenience and expense in defending the action in the selected forum outweigh the plaintiff's right to choose the forum; that is, the defendant must suggest transfer to a county that is 'significantly more convenient' than the county in which the action was filed. Id."

Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003).

MBUSI asserts that the alleged injury occurred in Tuscaloosa County. It also asserts that its principal place of business, including its repository of employment documentation, is located in Tuscaloosa County and, therefore, that any witness who is an employee at MBUSI works in Tuscaloosa County and, also, that any witness who investigates the work conditions in regard to Nix's claims must do so in Tuscaloosa County. However, "the convenience of nonparty witnesses that are employees of one of the parties to the case, and therefore whose presence may be obtained by one of the parties, does not weigh heavily in favor of a transfer." Ex parte Veolia Envtl. SVC, 122 So.3d 839, 842 (Ala. Civ. App. 2013). Moreover, even if venue in Jefferson County were to present an inconvenience for a witness who had investigated Nix's work conditions, venue in Tuscaloosa County would likewise inconvenience potential witnesses who live or work in Jefferson County. We note that MBUSI additionally asserts that Nix cannot claim inconvenience with traveling from Jefferson County to Tuscaloosa County, the location of his former workplace. That lack of inconvenience would also apply to any voluntary witness traveling from Tuscaloosa County to Jefferson County. Moreover, the evidence before the trial court indicated that potential witnesses, Nix and his wife, reside in Jefferson County and that Nix received medical treatments from two physicians located in Jefferson County.

" '[T]he doctrine of forum non conveniens"provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient." ' " Ex parte Veolia Envtl. SVC, 122 So.3d at 842-43 (quoting Ex parte Nichols, 757 So.2d 374, 379 (Ala. 1999), quoting in turn Van Dusen v. Barrack, 376 U.S. 612, 645-46, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) ). MBUSI had the burden to prove that Tuscaloosa County was a significantly more convenient forum compelling a transfer of the action from Jefferson County. See Ex parte Perfection Siding, supra. We conclude that MBUSI's assertions do not establish that the trial court exceeded its discretion in determining that MBUSI did not meet its burden.

MBUSI further argues that the interest-of-justice prong of the doctrine of forum non conveniens mandated a transfer of the action to Tuscaloosa County. Our supreme court has held:

"Our forum non conveniens analysis has never involved a simple balancing test weighing each county's connection to an action. Rather, to compel a change of venue under the 'interest of justice' prong of § 6-3-21.1, the county to which the transfer is sought must have a 'strong' nexus or connection to the lawsuit, while the county from which the transfer is sought must have a 'weak' or 'little' connection to the action. This inquiry necessarily depends on the facts of each case."

Ex parte J & W Enters., LLC, 150 So.3d 190, 196 (Ala. 2014). As asserted by MBUSI, Tuscaloosa County has an interest in the action because of the location of MBUSI's facility and workers there. However, MBUSI's burden included establishing that Jefferson County had only a weak or little connection to the action. Although MBUSI submitted evidence indicating that it is located in Tuscaloosa County where the alleged injury occurred, it is undisputed that Nix resides in Jefferson County and received medical treatment there. In Ex parte Siemag, Inc., 53 So.3d 974, 980 (Ala. Civ. App. 2010), this court held that, "[a]lthough it is a valid principle of law that ordinarily 'litigation should be handled in the forum where the injury occurred,' Ex parte Sawyer, 892 So.2d 898, 904 (Ala. 2004), the Legislature clearly envisioned that persons in the plaintiffs' situation would have the choice of bringing their action in the county of their residence."

In its petition, MBUSI asserts that a party's residence in the forum does not prevent a transfer under the interest-of-justice prong, citing Ex parte Baptist Health System, Inc., 210 So.3d 618 (Ala. Civ. App. 2016). That assertion does not in itself establish that Jefferson County has a weak connection to the action. Moreover, in Ex parte Baptist Health System, this court held that a county had a stronger connection to a case, in part, because the plaintiff resided there. Although MBUSI asserts that potential witnesses may be employed or investigate work conditions in Tuscaloosa County, Jefferson County also has a connection to the action through the potential witnesses who live or work there. Cf. Ex parte Interstate Freight USA, Inc., 213 So.3d 560, 571 (Ala. 2016) (citing the lack of potential witnesses from a county as a reason for a change of venue). In addition, we note that, in Ex parte West Fraser, we held that a reason in favor of a change in venue under the interest-of-justice prong of the doctrine of forum non convenience was that the plaintiff's medical treatment of injuries occurred only in the county of the transferee venue and not the county of the plaintiff's residence and chosen venue. In this case, however, Nix not only resides in Jefferson County, but he also received medical treatment there. We conclude that MBUSI has not established that Jefferson County has only a weak or little connection to the action. Therefore, we hold that MBUSI has not demonstrated that the trial court exceeded its discretion in denying a change of venue on the basis of the interest-of-justice prong under the doctrine of forum non conveniens.

Conclusion

Based on the foregoing, we hold that the MBUSI has not demonstrated a clear legal right to a writ of mandamus directing the trial court to transfer the action to Tuscaloosa County. The petition for a writ of mandamus, therefore, is due to be denied.

PETITION DENIED.

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


text:
    EX PARTE Kireem JETER
    (In re: Susie Bonner v. Kireem Jeter)
    2170328
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Ginette A. Dow, Bessemer, for petitioner.
    A. Edward Fawwal, Bessemer, for respondent.
   DONALDSON, Judge.

Kireem Jeter ("the father") petitions this court for a writ of mandamus directing the Jefferson Circuit Court ("the trial court") to grant his motion to dismiss the petition of Susie Bonner ("the maternal grandmother") seeking an order from the trial court to permit her to have visitation with the father's child, K.H.B. ("the child"). The father claims the trial court lacks subject-matter jurisdiction over the proceedings. For the reasons set forth below, we deny the petition.

Background

The materials submitted by the parties indicate the following. On September 7, 2017, the maternal grandmother filed a petition seeking visitation with the child, pursuant to § 30-3-4.2, Ala. Code 1975 ("the Grandparent Visitation Act"). On November 27, 2017, the father filed a motion to dismiss the petition for lack of jurisdiction. In his motion, the father asserted that the trial court lacked jurisdiction over the action because the child's other grandparents ("the other grandparents") had not been notified of the petition as required by the Grandparent Visitation Act. On November 28, 2017, the maternal grandmother filed certificates of service, indicating that a copy of the petition had been mailed to the child's maternal grandfather and the paternal grandmother, and she submitted an interrogatory to the father requesting the name and contact information of the child's paternal grandfather. On November 28, 2017, the maternal grandmother also filed a response to the motion to dismiss, arguing that the trial court should deny the motion to dismiss and direct the father to provide the requested information regarding the paternal grandfather. On November 28, 2017, the trial court entered an order denying the father's motion to dismiss and directing the maternal grandmother to amend her petition and provide notice to, or to serve, all necessary parties within 14 days. On January 2, 2018, the father filed a petition for the writ of mandamus challenging the denial of his motion to dismiss. We have jurisdiction to review the father's petition pursuant to § 12-3-10, Ala. Code 1975, and § 12-3-11, Ala. Code 1975.

Standard of Review

" '[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' " Ex Parte Reynolds, 209 So.3d 1122, 1125 (Ala. Civ. App. 2016) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ).

" ' "Mandamus is a drastic and extraordinary writ, to be issued 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." ' "

Id. (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ).

Discussion

The father contends that the trial court lacked jurisdiction over the action.

"Jurisdiction is '[a] court's power to decide a case or issue a decree.' Black's Law Dictionary 867 (8th ed. 2004). Subject-matter jurisdiction concerns a court's power to decide certain types of cases. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (' "By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought." ' (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870) ) ). That power is derived from the Alabama Constitution and the Alabama Code. See United States v. Cotton, 535 U.S. 625, 630-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (subject-matter jurisdiction refers to a court's 'statutory or constitutional power' to adjudicate a case)....
"Under the Alabama Constitution, a circuit court 'shall exercise general jurisdiction in all cases except as may be otherwise provided by law.' Amend. No. 328, § 6.04(b), Ala. Const. 1901."

Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006). Section 12-11-31, Ala. Code 1975, provides, in part:

"The powers and jurisdiction of circuit courts as to equitable matters or proceedings shall extend:
"(1) To all civil actions in which a plain and adequate remedy is not provided in the other judicial tribunals.
"....
"(4) To such other cases as may be provided by law."

As courts of general civil jurisdiction, circuit courts have subject-matter jurisdiction over " 'a contest ... between the parents, or between a parent and a third person, as to who should have the control and care of the minor.' " Ex parte K.L.P., 868 So.2d 454, 456 (Ala. Civ. App. 2003) (quoting 47 Am. Jur. 2d Juvenile Courts § 4 (1995) ). Accordingly, a circuit court has subject-matter jurisdiction over petitions seeking grandparent visitation, subject to statutory restrictions. Id. (holding that circuit court had subject-matter jurisdiction of petition seeking grandparent visitation).

Moreover, the Grandparent Visitation Act provides that, generally, petitions initiating an original grandparent-visitation action are to be filed in a circuit court:

"A grandparent may file an original action in a circuit court where his or her grandchild resides or any other court exercising jurisdiction with respect to the grandchild or file a motion to intervene in any action when any court in this state has before it any issue concerning custody of the grandchild, including a domestic relations proceeding involving the parent or parents of the grandchild, for reasonable visitation rights with respect to the grandchild if any of the following circumstances exist:
"(1) An action for a divorce or legal separation of the parents has been filed, or the marital relationship between the parents of the child has been severed by death or divorce.
"(2) The child was born out of wedlock and the petitioner is a maternal grandparent of the child.
"(3) The child was born out of wedlock, the petitioner is a paternal grandparent of the child, and paternity has been legally established.
"(4) An action to terminate the parental rights of a parent or parents has been filed or the parental rights of a parent has been terminated by court order; provided, however, the right of the grandparent to seek visitation terminates if the court approves a petition for adoption by an adoptive parent, unless the visitation rights are allowed pursuant to Section 26-10A-30."

§ 30-3-4.2(b). In this case, there is no dispute over the child's residency in Jefferson County, and the materials submitted indicate that the mother is deceased. There is no indication that there were any previous orders regarding the custody of the child. Although there is also no indication whether the mother and the father were married at the time of the mother's death, we conclude that, based on the materials submitted, the maternal grandmother's filing of a petition initiating an original action in the trial court met the requirements in either § 30-3-4.2(b)(1) or § 30-3-4.2(b)(2).

Section 30-3-4.2(i) provides additional conditions regarding the filing of an original action seeking grandparent visitation, stating:

"(1) Notwithstanding any provisions of this section to the contrary, a petition filed by a grandparent having standing under Chapter 10A of Title 26, seeking visitation shall be filed in probate court and is governed by Section 26-10A-30, rather than by this section if either of the following circumstances exists:
"a. The grandchild has been the subject of an adoption proceeding other than the one creating the grandparent relationship.
"b. The grandchild is the subject of a pending or finalized adoption proceeding.
"(2) Notwithstanding any provisions of this section to the contrary, a grandparent seeking visitation pursuant to Section 12-15-314 shall be governed by that section rather than by this section.
"(3) Notwithstanding any provisions of this section to the contrary, a parent of a parent whose parental rights have been terminated by a court order in which the petitioner was the Department of Human Resources, shall not be awarded any visitation rights pursuant to this section."

There is no indication that the child has been involved in an adoption or dependency case or that the maternal grandmother has been involved in a termination-of-parental rights case. As a result, we cannot conclude that the trial court lacked jurisdiction over the maternal grandmother's petition on the basis that § 30-3-4.2(i) is applicable in this case.

The father argues that the trial court lacked jurisdiction over the action because, he asserts, the other grandparents are necessary parties and were not served and notified of the petition. The Grandparent Visitation Act provides, in relevant part:

"(k) All of the following are necessary parties to any action filed under this section:
"(1) Unless parental rights have been terminated, the parent or parents of the child.
"(2) Every other person who has been awarded custody or visitation with the child pursuant to court order.
"(3) Any agency having custody of the child pursuant to court order.
"(l) In addition, upon filing of the action, notice shall be given to all other grandparents of the child. The petition shall affirmatively state the name and address upon whom notice has been given.
"(m) Service and notice shall be made in the following manner:
"(1) Service of process on necessary parties shall be made in accordance with the Alabama Rules of Civil Procedure.
"(2) As to any other person to whom notice is required to be given under subsection (l), notice shall be given by first class mail to the last known address of the person or persons entitled to notice. Notice shall be effective on the third day following mailing.
"(n) Notwithstanding the foregoing, the notice requirements provided by this section may be limited or waived by the court to the extent necessary to protect the confidentiality and the health, safety, or liberty of a person or a child."

Section 30-3-4.2(n) provides that the trial court may limit or waive the notification requirement under certain circumstances. That provision is inconsistent with the father's assertion that notification is a jurisdictional requirement for the trial court to hear the case. Moreover, the other grandparents are not agencies or parents of the child, and there is no indication in the materials submitted that any of the other grandparents "ha[ve] been awarded custody or visitation with the child pursuant to court order." § 30-3-4.2(k)(2). As a result, the father has not established that the other grandparents are necessary parties pursuant to § 30-3-4.2(k). Furthermore, even if the other grandparents are necessary parties, "the failure to join an indispensable party does not affect the subject-matter jurisdiction of a court." Miller v. City of Birmingham, 235 So. 3d 220, 229 (Ala. 2017). Therefore, any lack of notice of the petition to the other grandparents did not deprive the trial court of subject-matter jurisdiction over the action.

We conclude that the trial court was not required to dismiss the action for lack of subject-matter jurisdiction. Accordingly, we deny the father's petition for a writ of mandamus.

PETITION DENIED.

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


author: THOMAS, Judge.

text:
    WE GOT GAMES, LLC; Bernard Buggs, individually; and Bernard Buggs Investment Company v. E & D VENTURES, LLC
    2160977
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Derrick Collins, Birmingham, for appellants.
    A. Todd Campbell and John C. Guin of Campbell Guin, LLC, Birmingham, for appellee.
   THOMAS, Judge.

We Got Games, LLC ("WGG"); Bernard Buggs, individually; and Bernard Buggs Investment Company ("BBI") appeal from a summary judgment entered by the Jefferson Circuit Court in favor E & D Ventures, LLC ("E & D"). We dismiss the appeal.

Background

Buggs is the sole owner of WGG and BBI, both of which are Alabama companies. In August 2013, Buggs formed WGG and listed the following on the certificate of formation regarding the reason for WGG's creation: "All lawful reasons for which a company can be formed in Alabama, including providing the public with a mobile gaming entertainment center." Later that month, WGG executed, through Buggs, a written contract with E & D, a North Carolina company, to purchase a "Rockin' Rollin' Video Game Mobile Game Theater" business package, which included training and a 32-foot trailer ("the trailer") equipped with a generator, various video-game systems, televisions, lighting, speakers, and other features designed to provide entertainment at events and parties. The total purchase price provided by the contract was $69,779, with a $34,639 deposit having been paid when the order was placed, and WGG agreeing to pay $35,139 upon receipt of the trailer.

According to E & D, Buggs traveled to North Carolina and retrieved the trailer, but he did not provide E & D with the $35,139 remainder of the purchase price that WGG had agreed to pay upon delivery of the trailer. E & D thereafter sued WGG, Buggs, and another individual in the circuit court. After a bench trial, the circuit court entered a judgment in June 2015 ("the 2015 judgment") dismissing with prejudice E & D's claims against Buggs and the other individual but also determining that WGG had breached its contract with E & D. The circuit court awarded E & D $35,139 in damages and $5,270.85 in attorney fees.

In December 2015, E & D filed a complaint in the circuit court against WGG, Buggs, BBI, and Gaming Enterprise, LLC ("GE"), whom it referred to "collectively [as] '[d]efendants,' " and fictitiously named parties. In its complaint, E & D alleged, among other things, that it had been unable to collect the $40,409.85 total award set out in the circuit court's 2015 judgment, despite its attempts to obtain a garnishment. It further alleged that, after the circuit court entered the 2015 judgment, WGG had dissolved and transferred all of its assets to GE, which, E & D alleged, had only recently been formed. E & D also alleged that Buggs had recently posted the trailer for sale on his personal-profile section of a social-media Web site.

In light of its allegations, E & D asserted that it should be permitted to "pierce the corporate veil surrounding WGG and BBI and impose personal liability for the full amount of the [2015] judgment against Buggs." In its complaint, E & D also asserted claims of "breach of contract/successor liability" against GE, fraudulent transfer against WGG and GE, constructive trust against the "[d]efendants," deceptive trade practices against the "[d]efendants," and civil conspiracy against the "[d]efendants." In January 2016, Buggs, acting pro se, submitted an answer to E & D's complaint, denying most of its allegations. See Progress Indus., Inc. v. Wilson, 52 So.3d 500, 507-08 (Ala. 2010) ("This court has ... held that a pleading filed by a non-attorney engaging in the unauthorized practice of law in purporting to represent a separate legal entity is a nullity."). In February 2016, E & D provided notice to the circuit court that it was voluntarily dismissing, without prejudice, its claims against GE. See Rule 41(a)(1), Ala. R. Civ. P. (providing, in relevant part, that "an action may be dismissed by the plaintiff without order of court ... by filing a notice of dismissal at any time before service by the adverse party of an answer or a motion for summary judgment, whichever first occurs").

In March 2016, E & D moved for a default judgment against WGG, Buggs, and BBI, arguing that Buggs's answer had been a procedurally insufficient response to the complaint. The circuit court set E & D's motion for a hearing, which was continued several times. In July 2016, WGG, Buggs, and BBI filed a response to E & D's default-judgment motion with the assistance of counsel, in which they also asked the circuit court to dismiss E & D's complaint with prejudice. E & D later submitted a response opposing the motion to dismiss. On July 20, 2016, the circuit court entered an order denying E & D's default-judgment motion and the motion to dismiss filed by WGG, Buggs, and BBI.

On February 24, 2017, E & D filed a motion and supporting evidentiary materials seeking a summary judgment regarding only its "piercing the corporate veil claim against" WGG, Buggs, and BBI. WGG, Buggs, and BBI submitted a response to the motion with an accompanying affidavit. On June 7, 2017, E & D submitted a supplement to its summary-judgment motion, which included additional evidentiary materials. On July 24, 2017, the circuit court entered an order granting E & D's summary-judgment motion, finding the "[d]efendants ... jointly and severally liable for the $40,409.85; plus reasonable attorney fees, costs in this case, and the post-judgment interest pursuant to Ala[.] Code [1975,] § 8-8-10."

WGG, Buggs, and BBI filed a notice of appeal on August 30, 2017. On October 24, 2017, this court issued an order reinvesting the circuit court with subject-matter jurisdiction to "consider and enter, if appropriate, an order setting the amount of the attorney fee." See Haynes v. Vassilik, 175 So.3d 620, 621 (Ala. Civ. App. 2015) ("In this case, the trial court's judgment found that [the prevailing party] was entitled to a reasonable attorney fee. However, the trial court made no determination regarding the amount of the attorney fee. Therefore, the trial court's judgment is nonfinal for purposes of appeal, and a nonfinal judgment will not support an appeal."). On November 7, 2017, the circuit court entered an order awarding E & D "attorney fees in the amount of $32,476.50 and $1,591.21 for costs" in addition to its damages award of $40,409.85. Because the trial court's combined awards of damages and attorney fees to E & D exceeds $50,000, we subsequently transferred the appeal to the supreme court. See § 12-3-10, Ala. Code 1975 ("The Court of Civil Appeals shall have exclusive appellate jurisdiction of all civil cases where the amount involved, exclusive of interest and costs, does not exceed $50,000 ...."); and Ex parte Habeb, 100 So.3d 1086, 1089 (Ala. Civ. App. 2012) ("Under Alabama law, costs do not include attorney fees."). The appeal was thereafter transferred to this court by our supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

Analysis

Upon further review of the record in this appeal, we conclude that a final judgment has not been entered in the underlying action.

"Although neither party has questioned the finality of the trial court's judgment in this case, jurisdictional matters, such as the question whether an appeal is supported by a final judgment, are of such importance that this court takes notice of them ex mero motu. See Wilson v. Glasheen, 801 So.2d 848 (Ala. Civ. App. 2001) ; Nunn v. Baker, 518 So.2d 711 (Ala. 1987). A final judgment is one that completely adjudicates all matters in controversy between all the parties. See McCollough v. Bell, 611 So.2d 383 (Ala. Civ. App. 1992)."

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002). In its complaint, E & D sought to "pierce the corporate veil surrounding WGG and BBI and impose personal liability for the full amount of the [2015] judgment against Buggs" and asserted claims of "breach of contract/successor liability" against GE, fraudulent transfer against WGG and GE, constructive trust against the "[d]efendants," deceptive trade practices against the "[d]efendants," and civil conspiracy against the "[d]efendants."

We first note that, although E & D voluntarily dismissed GE from the underlying action without prejudice, some of its claims sought to establish the liability of a different defendant or the "[d]efendants" collectively, the latter of which, according to the language of the complaint, indicated that those claims were being asserted against WGG, Buggs, and BBI, in addition to GE. Thus, E & D's voluntary dismissal of GE from the underlying action fully resolved only the claim that was being asserted against GE alone, i.e., its "breach/of contract/successor liability" claim.

Second, we note that E & D moved for a summary judgment on only its "pierc[ing] the corporate veil" theory and did not address the other claims set out in its complaint. Thus, the circuit court's July 24, 2017, and November 7, 2017, orders granting E & D's motion did not address, and could not have addressed, E & D's remaining claims against WGG, Buggs, and BBI.

"In discussing the requirements of Rule 56, Ala. R. Civ. P., our supreme court has stated:
" 'Because Rule 56 requires, at the least, that the nonmoving party be provided with notice of a summary-judgment motion and be given an opportunity to present evidence in opposition to it, the trial court violates the rights of the nonmoving party if it enters a summary judgment on its own, without any motion having been filed by a party.'
" Moore v. Prudential Residential Servs. Ltd. P'ship, 849 So.2d 914, 927 (Ala. 2002) (emphasis added)."

Harris v. Thermax, Inc., 876 So.2d 472, 473-74 (Ala. Civ. App. 2003). We therefore do not view the general language set out in the circuit court's July 24, 2017, and November 7, 2017, orders granting E & D's summary-judgment motion, which sought a determination regarding only its "pierc[ing] the corporate veil" theory, as an attempt to adjudicate E & D's other claims against WGG, Buggs, and BBI.

We also note that, although the circuit court awarded E & D damages based on its "pierc[ing] the corporate veil" theory in an amount equal to the total amount that it awarded E & D in the 2015 judgment, the other claims asserted by E & D, if proven, may support additional remedies. See § 8-9A-7, Ala. Code 1975 (providing the remedies available to creditors for a claim asserted under the Alabama Fraudulent Transfer Act); Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d 1056, 1070 (Ala. 2006) (defining "constructive trust"); § 8-19-10(a), Ala. Code 1975 (providing the remedies available to a consumer who asserts a private right of action under the Alabama Deceptive Trade Practices Act); and National States Ins. Co. v. Jones, 393 So.2d 1361, 1367-68 (Ala. 1980) (discussing damages in an action asserting, among other claims, conspiracy to defraud and to misrepresent). Thus, the circuit court's award of damages based only on E & D's "pierc[ing] the corporate veil" theory did not resolve the question whether it was entitled to the additional remedies provided by the other claims it asserted against WGG, Buggs, and BBI.

Finally, we note that neither the circuit court's July 24, 2017, order nor its November 7, 2017, order includes an express determination from the circuit court that there is no just reason for delay.

"As this court stated in Moore v. Moore, 666 So.2d 5 (Ala. Civ. App. 1995), if an order has failed to dispose of all of the parties or all of the claims, Rule 54(b), Ala. R. Civ. P., requires a two-step process on the part of the trial court to create an appealable order. There must be 'an express determination that there is no just reason for delay' and'an express direction for the entry of judgment.' Rule 54(b), Ala. R. Civ. P. See Cain v. City of Opp, 524 So.2d 984 (Ala. Civ. App. 1988)."

M.L.B. v. State ex rel. M.M., 707 So.2d 283, 283-84 (Ala. Civ. App. 1997). Thus, neither order was appealable, and WGG, Buggs, and BBI's appeal must be dismissed. Id. at 284.

APPEAL DISMISSED.

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

      We recognize that the sum of $34,639 and $35,139 is actually $69,778. The $1 disparity between that sum and the total purchase price provided by the contract appears to have been caused by rounding or some other approximation.


author: PITTMAN, Judge.

text:
    J.H. v. BIBB COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160718
    Court of Civil Appeals of Alabama.
    March 23, 2018
    Stuart D. Albea, Tuscaloosa, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

J.H. ("the father") appeals from a judgment of the Bibb Juvenile Court ("the juvenile court") terminating his parental rights to R.H. ("the child"), his daughter. We reverse the juvenile court's judgment.

Facts and Procedural History

In September 2011, H.W. ("the mother") gave birth to the child. Although the mother was married to D.W. when the child was conceived and had two daughters ("the half sisters") by him before the child was conceived, the father testified that he and the mother had been living together when the child was conceived and that he had known that the child was his as soon as he learned that the mother was pregnant with the child.

When the child was born, the father was in prison, serving a sentence imposed as a result of his second conviction for possession of chemicals used to manufacture crystal methamphetamine, which is a Class B felony. Tests performed when the child was born indicated that the mother had opiates in her system. The Bibb County Department of Human Resources ("DHR") investigated whether the mother had prescriptions for the opiates in her system and determined that she did not. However, DHR did not remove the child from the mother's custody at that time.

The record indicates that, in January 2015, J.G. and Sa.G ("the maternal grandparents") had custody of the half sisters, although the record does not indicate the circumstances that had prompted the maternal grandparents' being awarded custody or the process by which that award of custody was accomplished. The mother testified that she had custody of the child in January 2015 and that she and the child were living with the maternal grandparents and the half sisters in January 2015 when DHR received a report that illegal drugs were being used at the maternal grandparents' house. DHR investigated that report, determined that the report was accurate, removed the half sisters from the custody of the maternal grandparents, and removed the child from the custody of the mother. The father testified that he had been released from prison before January 2015 but was back in prison when DHR became involved with the child and her family in January 2015.

After removing the child from the mother's custody in January 2015, DHR temporarily placed the child in the care of J.M. ("the paternal grandmother") but removed the child from her care in April 2015 after receiving information indicating that the paternal grandmother had allowed the child to have contact with Sa.G., the maternal grandmother. In October 2015, DHR placed the child and the half sisters with the maternal grandparents. However, in February 2016, DHR received a report that J.G., the maternal grandfather, was using illegal drugs, investigated the report, determined that the report was accurate, and removed the child and the half sisters from the maternal grandparents' care.

Sometime between January 2015 and October 2016, the father was again released from prison. The record does not indicate when he was released or whether he had any contact with DHR before October 2016, although it implies that, before October 2016, DHR had asked the father to undergo a DNA test to determine if he was the child's biological father and that the father had refused. John Richards, the DHR caseworker assigned to the child's case, testified that, in October or November 2016, DHR had obtained a court order compelling the father to undergo a DNA test, that the father had undergone the test, that the results of the test had confirmed that the father was indeed the biological father of the child, and that the juvenile court had adjudicated him the father of the child in late October or early November 2016. The father testified that, sometime after he had been released from prison the first time and before January 2015, when he was in prison the second time, he had begun living with the mother and the child; however, the record does not indicate how long that living arrangement had lasted before he returned to prison.

In October 2016, the father underwent a drug test that indicated the presence of marijuana, morphine, and methadone in his system. Richards testified that, after he received the results of the father's drug test, he had asked the father to provide proof that he had prescriptions for the morphine and methadone within a week so that DHR could determine what services should be provided the father to assist him in reuniting him with the child. Richards further testified that the father did not provide that proof until several months had elapsed. The father testified that he had brought the requested proof of his prescriptions during the week following DHR's request. The father further testified that DHR had first told him that he could visit the child in January 2017 and that, between January 2017 and April 19, 2017, the date of the trial of this action, he had visited with the child face-to-face on three occasions and had talked to the child on the telephone on a regular basis.

The father testified that he had back surgery while he was in prison and that the morphine had been prescribed to treat his back pain. He further testified that he had tried to work since his release from prison but that the condition of his back had prevented him from maintaining employment. He admitted that, when this action was tried on April 19, 2017, he had no income and that, therefore, he could not care for the child at that time. He testified that he had applied for disability benefits but had not received a response to his application. The father admitted that, when this action was tried, he had two felony criminal charges pending against him.

In December 2016, DHR filed a petition asking the juvenile court to terminate the mother's and the father's parental rights to the child. Following a bench trial at which it received evidence ore tenus, the juvenile court entered a judgment terminating the mother's and the father's parental rights to the child. The father timely filed a postjudgment motion in which he asserted, among other things, that the juvenile court had erred in terminating his parental rights because, he said, DHR had failed to show that it had made reasonable efforts to reunite him with the child. The father's postjudgment motion was denied by operation of law; thereafter, he timely appealed to this court. We have jurisdiction over his appeal by virtue of the fact that the record on appeal satisfies the requirements of Rule 28(A)(1)(c)(ii), Ala. R. Juv. P. The mother did not appeal from the juvenile court's judgment.

Standard of Review

"[W]e will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence. F.I.[ v. State Dep't of Human Res.], 975 So.2d [969] at 972 [ (Ala. Civ. App. 2007) ]." J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007). Clear and convincing evidence is

" ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt."
" '§ 6-11-20[ (b) ](4), Ala. Code 1975.'
" L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002)."

J.C., 986 So.2d at 1184 (emphasis omitted).

Analysis

We will consider the father's arguments in their logical order rather than in the order he presents them in his brief. Logically, the father's first argument is that DHR failed to prove that it had made reasonable efforts to reunite him and the child. Subject to exceptions not here applicable, county departments of human resources have a duty to make reasonable efforts to rehabilitate the parents of dependent children before seeking the termination of those parents' parental rights. See W.A. v. Calhoun Cty. Dep't of Human Res., 211 So.3d 849, 852 (Ala. Civ. App. 2016). Whether a county department's efforts have been reasonable and whether those efforts have succeeded are questions of fact to be determined by the juvenile court. See W.A., 211 So.3d at 852-53. In this case, the juvenile court found: "The Bibb County Department of Human Resources has made reasonable efforts toward rehabilitation and reunification and such efforts have failed because of the parents' refusal to change their circumstances to meet the needs of the child." "In reviewing that factual determination, 'this court has a narrow standard of review that allows us to disturb those findings only when they are so unsupported by the evidence as to be plainly and palpably wrong.' " W.A., 211 So.3d at 853 (quoting M.H. v. Jefferson Cty. Dep't of Human Res., 42 So.3d 1291, 1294 (Ala. Civ. App. 2010) ).

The record indicates that DHR obtained a court order compelling the father to undergo a DNA test in order to determine his paternity of the child, that it administered or arranged for a drug test of the father in October 2016, and that it arranged visitation for him beginning in January 2017 after it had already filed the petition to terminate his parental rights in December 2016. The record contains no evidence indicating that DHR ever offered the father any services to assist him in rehabilitating himself such as assistance in finding a job that his back condition would not preclude him from performing, assistance with his application for disability benefits, assistance in locating stable housing, or parenting classes. The evidence established that the child was dependent when this action was tried and that some of the factors upon which a termination of parental rights could be based existed in this case; however, we conclude that the juvenile court's finding that DHR had made reasonable efforts to reunite the father and the child is so unsupported by the record as to be plainly and palpably wrong. Therefore, we reverse the judgment of the juvenile court insofar as it terminated the father's parental rights to the child, and we remand the cause to the juvenile court for further proceedings consistent with this opinion. Based on our disposition of this issue, we do not reach the father's other arguments.

REVERSED AND REMANDED.

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

Thomas, J., concurs in the result, with writing.

THOMAS, Judge, concurring in the result.

J.H. ("the father") has appealed a judgment of the Bibb Juvenile Court ("the juvenile court") terminating his parental rights to his daughter, R.H. ("the child"). The main opinion reverses the juvenile court's judgment and remands the cause for further proceedings. Because the record indicates that the Bibb County Department of Human Resources ("DHR") has not asserted, at any stage in the underlying proceedings, the applicability of § 12-15-32(c)(1)f., Ala. Code 1975, to the circumstances presented by this case, I concur in the result reached by the main opinion.

Section 12-15-312, Ala. Code 1975, provides, in relevant part:

"(c) Reasonable efforts shall not be required to be made with respect to a parent of the child if the juvenile court has determined that the parental rights of the parent to a sibling of the child have been involuntarily terminated or that a parent has done any of the following:
"(1) Subjected a child to an aggravated circumstance against the child or a sibling of the child and the risk of child abuse or neglect is too high for the child to remain at home safely or to be returned home. An aggravated circumstance includes, but is not limited to, rape, sodomy, incest, aggravated stalking, abandonment, torture, chronic abuse, or sexual abuse. An aggravated circumstance may also include any of the following:
"....
"f. When a parent is incarcerated and the child is deprived of a safe, stable, and permanent parent-child relationship."

The child was five years old at the time of the April 2017 trial. H.W. ("the mother") and the father were living together prior to the child's birth. When the child was born, however, the father was incarcerated. After his term of incarceration ended, the father began living with the mother and the child but, it appears, was later convicted of another offense and sentenced to another term of incarceration. "When I got out," the father testified, "the kids were gone." Although the record is unclear regarding the exact nature of each offense resulting in the father's apparently separate terms of incarceration, he testified that he had been convicted of possessing chemicals used to manufacture methamphetamine and that he had been convicted of "an escape charge too." At the time of the trial, the father had been charged with committing two additional felonies.

While the father was incarcerated, the mother and the child began living with the mother's parents, J.G. and Sa.G., who, DHR discovered, were using illegal drugs. At that time, DHR became involved with the child, and the child was subsequently placed with multiple relatives before eventually being placed with the mother's cousins, St.G. and B.G., with whom she was living at the time of the trial. As noted above, each of the foregoing events transpired during the first five years of the child's life.

When a parent is incarcerated and, during the parent's incarceration, the circumstances of his or her child's life deteriorate to such an extent that the state must intervene to protect the child's welfare, the burden placed upon the state to reunite the parent with the child upon his or her release from incarceration must be measured against the harm caused to the child by the parent's incarceration. The legislature's decision to include § 12-15-312(c)(1) f. on the list of "aggravated circumstance[s]" described in § 12-15-312(c)(1) reflects that reality. Under the facts of this case, the juvenile court may well have concluded that the events occurring during the father's incarceration had resulted in the child's being deprived of a "safe, stable, and permanent" relationship with both the father and the mother and that DHR should be relieved of making efforts toward reuniting the father with the child. See § 12-15-312(c)(1) f.

The record indicates, however, that DHR did not ask the juvenile court to make that determination. See § 12-15-312(a)(2), Ala. Code 1975 (providing that, when a child is placed in DHR's custody or foster care, the juvenile court should enter an order "[w]ithin 60 days after the child is removed from the home of the child, [determining] whether reasonable efforts have been made to prevent removal of the child or whether reasonable efforts were not required to be made" (emphasis added) ). In my opinion, DHR should have presented evidence to the juvenile court for a timely determination regarding whether, in light of the father's incarceration, it was required to make reasonable efforts to reunite the father with the child upon the father's release from incarceration. At a hearing on the issue, the juvenile court would be afforded an opportunity to consider evidence regarding the nature of the conviction or convictions resulting in the parent's incarceration, the anticipated duration of the parent's incarceration, and how that evidence relates to the circumstances that caused the child to become dependent upon the state for protection.

This record contains no such determination from the juvenile court.

I recognize that the father's paternity of the child was not adjudicated until October or November 2016. In my view, however, the question of the father's paternity should have been brought to the juvenile court's attention much sooner than it appears to have been, so that, to the extent possible, foreseeable issues related to that question could be incorporated into or addressed by the permanency plan for the child. The consequences of failing to do so are made clear by the analysis set out in the main opinion. In other words, the record in this appeal indicates that DHR sought to terminate the father's parental rights weeks after he acquired them. Considering those facts alone, it does not appear that DHR could have made reasonable efforts toward reuniting the father with the child, and, therefore, I agree that we are compelled to reverse the juvenile court's judgment. Had DHR sought such a determination from the juvenile court, however, it may well have been relieved from making such efforts in the first place.

It is the child who will suffer the consequences of our reversing the juvenile court's judgment. In addition to the tumult she has experienced in the first five years of her life, she must now also endure DHR's efforts to reunite her with the father, who, the record indicates, has spent a substantial portion of her life incarcerated but has also received practically no services from DHR. In effect, the process must "start over." If the record on appeal contained a timely determination from the juvenile court that DHR had not been required to make reasonable efforts toward reuniting the father with the child based on the father's incarceration, I would likely affirm the juvenile court's judgment. Because it does not, I concur in the result reached by the main opinion.

      The record does not indicate D.W.'s whereabouts when the child was conceived; however, it implies that he was not living with the mother.

      Presumably, DHR was satisfied that the maternal grandparents had rehabilitated themselves between January 2015 and October 2015; however, the record is silent on that point.

      The record does not contain any pleadings or orders related to the adjudication of the father's paternity. Because the child was born during the mother's marriage to D.W., D.W. was the presumed father of the child under § 26-17-204(a)(1), Ala. Code 1975. Therefore, we presume that, before the father's paternity was adjudicated, D.W. had provided proof that he did not wish to persist in his status as the presumed father of the child. See § 26-17-607(a), Ala. Code 1975 ("If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.").