author: BOLIN, Justice.

text:
    EX PARTE TEREX USA, LLC
    (In re: Cowin Equipment Company, Inc. v. Terex USA, LLC, et al.)
    1161113
    Supreme Court of Alabama.
    March 30, 2018
    Aaron G. McLeod and Stephen A. Rowe of Adams & Reese LLP, Birmingham, for petitioner.
    David A. Elliott, Benjamin D. Coulter, and Ryan S. Rummage of Burr & Forman LLP, Birmingham, for respondent.
   BOLIN, Justice.

Terex USA, LLC ("Terex"), petitions this Court for a writ of mandamus directing the Jefferson Circuit Court to enforce an outbound forum-selection clause contained in a distributorship agreement between Terex and Cowin Equipment Company, Inc. ("Cowin"), and to dismiss Cowin's action against Terex based on improper venue pursuant to Rule 12(b)(3), Ala. R. Civ. P. We deny the petition.

Facts and Procedural History

Before August 2015, Cowin, a heavy-equipment dealer, had served as an authorized dealer of heavy equipment manufactured by the Liebherr Group for approximately 30 years. Cowin alleges that Terex, a heavy-equipment manufacturer, began aggressively recruiting Cowin to become a dealer of its equipment in Alabama, Georgia, and Florida. At the time, Warrior Tractor & Equipment Company, Inc. ("Warrior"), was serving as the dealer for Terex's equipment in the region. Based on assurances from Terex that Cowin would be the only Terex dealer in the territory, Cowin allowed its relationship with Liebherr Group to expire. In August 2015, Cowin entered into a distributorship agreement with Terex to sell Terex heavy equipment in Alabama, Georgia, and Florida. The agreement contained the following outbound forum-selection clause:

"The parties agree that this Agreement shall be governed by and interpreted consistent with the laws of the State of Georgia. The parties also agree that any dispute arising out of or in relation to this Agreement shall be exclusively decided by the United States District Court, Northern District of Georgia. The parties consent to the exclusive jurisdiction of the United States District Court, Northern District of Georgia or, if federal jurisdiction is lacking in such legal action, in the State Court in Atlanta, Georgia and waive any and all objections to the jurisdiction or venue of said Court."

Subsequent to entering into the distributorship agreement with Cowin, Terex entered into a new distributorship agreement with Warrior without providing notice to Cowin that Warrior would be reentering the heavy-equipment market. Cowin alleges that Terex's failure to give it notice that Warrior would be reentering the market is contrary to common industry practices. On June 2, 2017, Cowin sued Terex and Warrior, asserting various claims arising from Terex's alleged violation of the Alabama Heavy Equipment Dealer Act, § 8-21B-1 et seq., Ala. Code 1975 ("the AHEDA").

On July 27, 2017, Terex moved the trial court pursuant to Rule 12(b)(3), Ala. R. Civ. P., to dismiss Cowin's complaint, arguing that venue in Jefferson County was improper because of the forum-selection clause in the distributorship agreement designating either the United States District Court for the Northern District of Georgia or the Georgia state court in Atlanta as the proper forum for any dispute between the parties arising from the distributorship agreement. On August 15, 2017, Cowin responded to Terex's motion to dismiss, arguing that the enforcement of the forum-selection clause would violate a strong public policy set forth in the AHEDA. On August 17, 2017, Terex filed a response, arguing that Cowin was asking the trial court to reject the presumption under Alabama law in favor of outbound forum-selection clauses without binding precedent; that if the AHEDA is read in pari materia with the Alabama Motor Vehicle Franchise Act, § 8-20-1 et seq., Ala. Code 1975 ("the MVFA"), it is clear that the legislature knows how to prohibit forum-selection clauses in agreements and it did not do so in the AHEDA; and that the cases relied upon by Cowin from other jurisdictions address statutes, unlike the AHEDA, that specifically address outbound forum-selection clauses. On September 1, 2017, the trial court denied Terex's motion to dismiss. This petition followed.

Standard of Review

" '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)."

Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala. 2000).

"[A]n attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala. Civ. App. 2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala. Civ. App. 1999)."

Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala. 2001). "[T]he review of a trial court's ruling on the question of enforcing a forum-selection clause is for an abuse of discretion." Id. (citing O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844 (Ala. 1999) ).

Discussion

At the outset, we note that "[a]n outbound forum-selection clause-a clause by which parties specifically agree to trial outside the State of Alabama in the event of a dispute-implicates the venue of a court rather than its jurisdiction. See Ex parte CTB, Inc., 782 So.2d 188 (Ala. 2000) ; and O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So. 844, 845 (Ala. 1999)." Ex parte Leasecomm Corp., 879 So.2d 1156, 1158 (Ala. 2003). In F.L. Crane & Sons, Inc. v. Malouf Construction Corp., 953 So.2d 366, 373 (Ala. 2006), this Court held that "an outbound forum-selection clause raises procedural issues and is governed by the law of the forum jurisdiction-in this case, the law of Alabama."

In M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), the United States Supreme Court held that, for purposes of federal law, outbound forum-selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." This Court in Professional Insurance Corp. v. Sutherland, 700 So.2d 347, 351 (Ala. 1997), adopted the Supreme Court's reasoning, stating that "a forum selection clause should be enforced so long as enforcing it is neither unfair nor unreasonable under the circumstances." This Court has stated that an outbound forum-selection clause is enforceable unless the party challenging the clause can clearly establish that enforcement of the clause (1) would be unfair on the basis that the contract was affected by fraud, undue influence, or overweening bargaining power or (2) would be seriously inconvenient for the trial of the action. Ex parte Leasecomm Corp., 879 So.2d 1156 (Ala. 2003). A party seeking to dismiss an action filed in Alabama based on the existence of an outbound forum-selection clause must initially establish the existence of a contract containing an outbound forum-selection clause. The burden then shifts to the party challenging the enforcement of the clause to establish that enforcement of the clause would be unfair or unreasonable under the circumstances. Ex parte PT Solutions Holdings, LLC, 225 So.3d 37 (Ala. 2016). This Court has noted that "[t]he burden on the challenging party is difficult to meet." D.M. White Constr., 806 So.2d at 372.

The Bremen Court identified four factors that would invalidate a forum-selection clause: " '(1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.'

Krenkel v. Kerzner Int'l Hotels Ltd., 579 F.3d [1279] at 1281 [ (11th Cir. 2009) ]." Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231, 1236 (11th Cir. 2011).

Terex argues in support of its petition that it has long been established in Alabama that forum-selection clauses are not void as against the public policy of Alabama. Terex further argues that the legislature has not expressed through plain language in the AHEDA its intention to enact legislation contrary to Alabama's long-established practice of holding forum-selection clauses valid and enforceable. Cowin contends that the legislature has expressed a strong public policy favoring heavy-equipment dealers that renders the outbound forum-selection clause unenforceable in this case. This Court held in Sutherland that outbound forum-selection clauses "are not void per se as against the public policy of Alabama." 700 So.2d at 350. However, this Court also acknowledged in Sutherland that the state legislature may enact statutory language that dictates the fundamental public policy of the state on a given subject. 700 So.2d at 351 ("[I]t can hardly be doubted that the legislature has the authority to enact a statute that would prohibit the enforcement of forum-selection clauses such as those at issue in this case ....").

Because the AHEDA contains no expressed public policy against outbound forum-selection clauses, we must construe the relevant sections of the AHEDA to determine whether the legislature intended such a public policy. In Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 296 (Ala. 1998), this Court discussed the principles of statutory construction:

" '[When a court] is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purposes sought to be obtained.' "

(Quoting Ex parte Holladay, 466 So.2d 956, 960 (Ala. 1985).) In IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala. 1992), this Court further stated with regard to statutory construction:

"Words 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."

Additionally, various subsections of a statute are to be read in pari materia, i.e., they are to be construed together to ascertain the meaning and intent of each. Ex parte Jackson, 614 So.2d 405 (Ala. 1993).

The legislature has recognized the sale and distribution of heavy equipment as being of vital importance to the State. The AHEDA, at § 8-21B-2, Ala. Code 1975, sets forth the following legislative findings in that regard:

"The Legislature finds and declares that the distribution and sale of heavy equipment in this state vitally affects the general economy of the state, the public interest, the public safety, and the public welfare and that, in the exercise of its police power, it is necessary to regulate the conduct of heavy equipment suppliers and dealers and their representatives doing business in this state in order to prevent fraud, unfair business practices, unfair methods of competition, and other abuses upon its citizens."

(Emphasis added.) To that end the legislature enacted the AHEDA, which regulates the dealings of heavy-equipment suppliers and dealers and imposes certain obligations upon the heavy-equipment suppliers for the benefit of the heavy-equipment dealers. For example, the AHEDA, at § 8-21B-4, Ala. Code 1975, prohibits a supplier from unilaterally terminating or amending a distributorship agreement without good cause; at § 8-21B-5, Ala. Code 1975, requires a supplier give a dealer 120 days' notice of its intent to amend, terminate, or not renew a distributorship agreement; at § 8-21B-8(c), Ala. Code 1975, requires a supplier to give notice to an existing dealer before entering into a distributorship agreement with a second dealer entering the same market area; and at § 8-21B-8(b), Ala. Code 1975, prohibits the supplier from engaging in activity with respect to the dealer that is arbitrary, in bad faith, or unconscionable.

Cowin points to three sections of the AHEDA where, it says, the legislature evidences a strong public policy against the enforcement of the forum-selection clause in this case. Initially, Cowin states that the AHEDA provides an express right to heavy-equipment dealers to commence an action in the State of Alabama regardless of the terms or conditions contained in a dealer's agreement. Section 8-21B-13, Ala. Code 1975, provides:

"Notwithstanding the terms, provisions, or conditions of any dealer agreement, any person who suffers bodily injury, loss of profit, or property damage as a result of a violation of this chapter may bring a civil action in a court of competent jurisdiction in this state to enjoin further violations and to recover the damages sustained by him or her together with the costs of the suit, including a reasonable attorney's fee...."

(Emphasis added.)

Specifically, Terex argues in its petition that Cowin reads the phrase "may bring a civil action in a court of competent jurisdiction in this state" in § 8-21B-13 as making the venue for violations of the AHEDA exclusive in Alabama. However, Terex contends that the language does not support that construction in that it merely grants a right to bring an action in Alabama without foreclosing the right to bring an action in another venue with competent jurisdiction. Terex further argues that the parties have the freedom of contract as to how and where their disputes are to be decided and that by the use of the word "may" in § 8-21B-13, instead of the mandatory "shall," the legislature did not impair that freedom. Thus, Terex concludes that § 8-21B-13 provides for venue in Alabama but does not foreclose other venues.

Cowin relies on two phrases in § 8-21B-13 as evidence of the legislature's intention to establish a strong public policy against outbound forum-selection clauses in the context of the AHEDA. As to the phrase "may bring a civil action in a court of competent jurisdiction in this state," Cowin argues that the use of the words "in this state" by the legislature, as opposed to merely permitting a plaintiff to bring an action in "a court of competent jurisdiction," expresses an intent that disputes arising under the AHEDA be decided in Alabama, and, it argues, that phrase-"in this state"-must be given effect. Cowin rejects Terex's contention that Cowin has construed the aforementioned phrase to mean that venue is exclusive in Alabama. Rather, Cowin argues that by using the word "may" the legislature intended for an aggrieved heavy-equipment dealer to take advantage of the protections afforded a heavy-equipment dealer under the AHEDA should it choose to do so but does not require it.

Second, Cowin argues that the plain language of the phrase "[n]otwithstanding the terms, provisions, or conditions of any dealer agreement," must be given effect and permits the filing of an action in Alabama even though the dealer agreement may contain a provision to the contrary, i.e., an outbound forum-selection clause. Terex has failed to address this phrase and the effect it has when read together with the phrase "may bring a civil action in a court of competent jurisdiction in this state."

Construing the two key phrases contained in § 8-21B-13, we conclude that it is clear that (1) the legislature intended to extend to an aggrieved heavy-equipment dealer the right to bring an action in this state should it choose to do so and (2) that no contrary provision contained in a dealer agreement could foreclose the dealer's option to bring a suit in this state should the dealer choose to do so.

Cowin next contends that the terms of the AHEDA are incorporated into each dealer agreement and that they supersede any provision in a dealer agreement that is inconsistent with the AHEDA. Section 8-21B-9, Ala. Code 1975, provides:

"This chapter shall be deemed to be incorporated into every dealer agreement subject to this chapter and shall supersede and control all provisions of any dealer agreement inconsistent with this chapter."

The outbound forum-selection clause contained in the parties' distributorship agreement provides that any dispute between the parties arising out of the distributorship agreement "shall be exclusively decided" in federal court in the Northern District of Georgia or in the state court in Atlanta. Cowin contends that, because the forum-selection clause contained in the parties' distributorship agreement requires disputes between the parties to be decided in either federal court in the Northern District of Georgia or in the state court in Atlanta, it is inconsistent with a dealer's right found in § 8-21B-13 to bring an action in this state. Thus, Cowin concludes that the forum-selection clause contained in the parties' distributorship agreement is superseded by the AHEDA and is therefore unenforceable.

Cowin next argues that § 8-21B-8(d), Ala. Code 1975, prohibits a party from requiring a dealer to waive any legislative enacted protection under the AHEDA, including the right to bring an action in this state. Section 8-21B-8(d) provides:

"No supplier shall require a dealer to prospectively assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from any liability or obligation under this chapter, which would limit the entitlement to recover damages under this chapter or other Alabama law, or which would waive the right to trial by jury. Any provision or agreement purporting to do so is void and unenforceable to the extent of the waiver or release...."

Terex again argues that § 8-21B-8(d) is devoid of any language addressing forum selection or venue and that that section does not make Alabama the exclusive venue for all actions brought under the AHEDA.

In Wimsatt v. Beverly Hills Weight Loss Clinics International, Inc., 32 Cal. App. 4th 1511, 38 Cal.Rptr.2d 612 (1995), the plaintiffs entered into a franchise agreement that contained an outbound forum-selection clause requiring that any action arising from a dispute under the franchise agreement be brought in Virginia. However, the California Franchise Investment Law contained an antiwaiver provision very similar to § 8-21B-8(d). In holding that the outbound forum-selection clause was invalid in light of the antiwaiver provision of the Franchise Investment Law, the court stated:

"One of the most important protections California offers its franchisee citizens is an antiwaiver statute which voids any provision in a franchise agreement which waives any of the other protections afforded by the Franchise Investment Law. ( Corp. Code, § 31512.) A forum selection clause, however, carries the potential to contravene this statute by placing litigation in a forum in which there is no guaranty that California's franchise laws will be applied to a franchisee's claims. At the risk of sounding 'provincial' (and in full awareness of the increasing trend toward the nationalization and internationalization of commerce), we note the fact remains that California's ability to guarantee that its franchisees enjoy the benefits of its Franchise Investment Law extends no farther than its own borders. (... cf. Modern Computer Systems v. Modern Banking Systems (8th Cir. 1989) 871 F.2d 734, 742 (dis. opn. of Heaney, J.) ['The choice of law provision in the present case similarly affects the remedial reach of the Minnesota Franchise Act. It becomes in effect a waiver of all rights statutorily afforded to [the franchisee], a waiver rendered void by Minn.Stat. § 80C.21.'].) If a forum selection clause places in-state franchisees in an out-of-state forum which uses some balancing test (or equivalent) to determine that the law of the out-of-state forum should be used in place of California's, then a forum selection clause in a franchise agreement will have effectively circumvented California's antiwaiver statute. Indeed, in a case involving the sale of securities, this court once went so far as to say that the possibility the out-of-state forum would apply its law even in the face of a California choice of law provision or stipulation was enough to render a forum selection clause unenforceable. (See Hall v. Superior Court (1983) 150 Cal. App. 3d 411, 419, 197 Cal.Rptr. 757 [refusing to enforce Nevada forum selection clause in litigation arising out of securities transaction because a court there 'might well apply Nevada law' even in the face of a California choice of law provision or stipulation].)"

Wimsatt, 32 Cal. App. 4th at 1520-21, 38 Cal.Rptr.2d at 617.

In Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128 (7th Cir. 1990), almost identical language as that contained in § 8-21B-8(d) was found to have articulated a strong public policy that prohibited the enforcement of a choice-of-law provision in a franchise agreement. That court stated:

"We agree with the district court that enforcement of the choice of law provision in the distributorship agreement would be contrary to Indiana's express public policy. Indiana has made it unlawful to enter into a franchise agreement 'requiring the franchisee to prospectively assent to a release ... [or] waiver ... which purports to relieve any person from liability to be imposed by this chapter' or to enter into an agreement 'limiting litigation brought for breach of the agreement in any manner whatsoever.' Ind. Code § 23-2-2.7-1(10). We owe deference to the district judge's interpretation of the law of the state in which the judge sits, see, e.g., Moore v. Tandy Corp., 819 F.2d 820, 823 (7th Cir. 1987), and the district judge here found that these provisions articulated a strong state policy against allowing contractual choice of law provisions to control the applicability of these provisions to Indiana franchises. The public policy, articulated in the nonwaiver provisions of the statute is clear: a franchisor, through its superior bargaining power, should not be permitted to force the franchisee to waive the legislatively provided protections, whether directly through waiver provisions or indirectly through choice of law. This public policy is sufficient to render the choice to opt out of Indiana's franchise law one that cannot be made by agreement."

Ricoh Corp., 908 F.2d at 132. Cowin contends that enforcement of the forum-selection clause in this case would violate the legislature's stated public policy in § 8-21B-8(d) by contravening the protections afforded it under the AHEDA and relieving Terex of its liabilities and obligations under the AHEDA.

In further support of its petition, Terex argues that § 8-21B-8(d) should be read in pari materia with the MVFA. The MVFA, at § 8-20-4(3)(m), Ala. Code 1975, provides:

"Notwithstanding the terms, provisions, or conditions of any dealer agreement or franchise or the terms or provisions of any waiver, prior to the termination, cancellation, or nonrenewal of any dealer agreement or franchise, the following acts or conduct shall constitute unfair and deceptive trade practices:
"....
"(3) For any manufacturer, factory branch, factory representative, distributor, or wholesaler, distributor branch, or distributor representative to do any of the following:
"....
"m. To prospectively assent to a release, assignment, novation, agreement, waiver, or estoppel 1. which would relieve any person from any liability or obligation under this chapter, 2. which would require any controversy between a new motor vehicle dealer and a manufacturer to be referred to any person other than the duly constituted courts of this state or the United States, if the referral would be binding on the new motor vehicle dealer, 3. which would limit the entitlement to recover damages under this chapter or other Alabama law, 4. which specifies the jurisdiction or venues in which disputes arising with respect to the franchise shall or shall not be submitted for resolution or otherwise prohibits a dealer from bringing an action in the courts of Alabama, or 5. which would waive the right to trial by jury."

(Emphasis added.) Terex contends that, by including the language emphasized above in § 8-20-4(3)(m), relating to specification of a particular venue for resolution of disputes arising from a franchise agreement, the legislature intended to prohibit forum-selection clauses in the context of the MVFA. Terex continues that, because the legislature chose not to use express language in the AHEDA similar to that used in § 8-20-4(3)(m) of the MVFA prohibiting forum-selection clauses, the legislature did not intend to prohibit forum-selection clauses in the AHEDA.

"[T]he principle of in pari materia does not require that the statutes being analyzed share an identical subject matter. To the contrary, this Court has indicated that the subject matter of the statutes being analyzed need only be 'related,' 'similar,' or the 'same general[ly].' See James [v. McKinney], 729 So.2d [264] at 267 [ (Ala. 1998) ] ('In determining legislative intent, a court should examine related statutes.'); Ex parte Johnson, 474 So.2d 715, 717 (Ala. 1985) ('It is a fundamental principle of statutory construction that statutes covering the same or similar subject matter should be construed in pari materia.'); and Willis v. Kincaid, 983 So.2d 1100, 1103 (Ala. 2007) (" '[S]tatutes must be construed in pari materia in light of their application to the same general subject matter.' " (quoting Opinion of the Justices No. 334, 599 So.2d 1166, 1168 (Ala. 1992) ) )."

City of Pike Road v. City of Montgomery, 202 So.3d 644, 651 (Ala. 2015) (plurality opinion).

We cannot say that the subject matter each act addresses is "related," "similar," or the "same generally." Section 8-20-4(3)(m) of the MVFA sets forth a definition of what constitutes unfair and deceptive trade practices under the MVFA. In contrast, § 8-21B-8(d) of the AHEDA preserves a remedy afforded heavy-equipment dealers pursuant to § 8-21B-8(d), by rendering void and unenforceable any provision or agreement that, among other things, would release or waive a person's liability or obligation under the AHEDA or limit the entitlement to recover damages under the AHEDA. Accordingly, we do not read § 8-21B-8(d)in pari materia with § 8-20-4(3)(m) to conclude that the legislature omitted express reference to venue-designating provisions in § 8-21B-8(d) because it intended for such provisions to be enforceable under the AHEDA.

The legislature has identified the distribution and sale of heavy equipment in this State as vitally affecting the general economy of the State, as well as the public interest and welfare of the State. In order to regulate the conduct of heavy-equipment suppliers and dealers, the legislature enacted the AHEDA, which granted heavy-equipment dealers certain remedial rights and protections while imposing on heavy-equipment suppliers certain obligations and burdens. The legislature granted aggrieved heavy-equipment dealers the right to bring an action under the AHEDA in this State, and no contrary provision in a dealer agreement will foreclose the dealer's right to do so. § 8-21B-13. Further, the legislature prohibited a supplier from requiring a dealer to assent to a waiver that would relieve the supplier of any liability or obligation under the AHEDA or that would limit the dealer's entitlement to recover damages under the AHEDA or other Alabama law. The legislature expressly provided that any provision or agreement purporting to do so would be void and unenforceable. § 8-21B-8(d). Finally, the legislature provided that these provisions of the AHEDA are "deemed to be incorporated into every dealer agreement subject to this chapter and shall supersede and control all provisions of any dealer agreement inconsistent with this chapter." § 8-21B-9.

Although outbound forum-selection clauses are not expressly mentioned in the AHEDA, we are persuaded by the foregoing provisions of the AHEDA that the legislature has expressed a strong public policy against any provision in a dealer agreement that would foreclose a dealer's right to seek redress under the AHEDA in the State of Alabama. An outbound forum-selection clause is exactly the type of provision the legislature intended to prohibit because it would undermine the remedial measures and protections the legislature clearly intended to afford heavy-equipment dealers under the AHEDA; this is especially so as to the outbound forum-selection clause in this case, which also contains a choice-of-law provision designating Georgia law as controlling.

Conclusion

We conclude that Terex has failed to establish a clear legal right to the relief sought, and we deny its petition for a writ of mandamus.

PETITION DENIED.

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

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

Sellers, J., dissents.

      The provision here also contained a choice-of-law provision, providing that the distributorship agreement "shall be governed by and interpreted consistent with the laws of the State of Georgia." Cowin has not directly challenged the enforceability of the choice-of-law provision.


source: Caselaw Access Project

author: BRYAN, Justice.

license: Public Domain

text:
    EX PARTE NAUTILUS INSURANCE COMPANY
    (In re: Terry Williams and Zandra Williams v. Precision Sand Products, LLC, et al.)
    Ex parte Lyon Fry Cadden Insurance Agency, Inc.
    (In re: Terry Williams and Zandra Williams v. Precision Sand Products, LLC, et al.)
    1170170 1170235
    Supreme Court of Alabama.
    March 30, 2018
    A. Grady Williams IV of Phelps Dunbar, LLP, Mobile, for petitioner Nautilus Insurance Company.
    W. David Jester, Alexis L. Kessler, and Lauren Kellerhouse of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Mobile, for petitioner Lyon Fry Cadden Insurance Agency, Inc.
    James B. Pittman, Jr., and Jon C. Archer II of James B. Pittman, Jr., PC, Daphne, for respondent Precision Sand Products, LLC.
   BRYAN, Justice.

Nautilus Insurance Company ("Nautilus") and Lyon Fry Cadden Insurance Agency, Inc. ("LFC"), separately petition this Court for writs of mandamus directing the Baldwin Circuit Court ("the trial court") to vacate its orders denying their motions to dismiss the action filed against them by Precision Sand Products, LLC ("Precision"). For the reasons set forth herein, we grant Nautilus's petition and deny LFC's petition.

Facts and Procedural History

During the period from June 10, 2015, to June 10, 2016, Precision had in place a commercial general-liability insurance policy ("the policy") it had purchased from Nautilus through LFC, an insurance broker. In March 2016, Terry Williams sued Precision in the trial court, seeking recovery for injuries he allegedly suffered on Precision's property during the period the policy was in effect. Williams later amended his complaint to add his wife, Zandra Williams, as a plaintiff. Pursuant to the terms of the policy, Precision demanded that Nautilus defend and indemnify it against the Williamses' claims. Nautilus agreed, under reservation of rights, to defend Precision against the Williamses' claims and is currently doing so.

On July 3, 2017, Nautilus filed a declaratory-judgment action against Precision and the Williamses in the United States District Court for the Southern District of Alabama ("the district court"), seeking a judgment declaring that, pursuant to an exclusion in the policy, Nautilus was not obligated to defend and indemnify Precision against the Williamses' claims ("the federal action"). Precision filed a motion to dismiss or, alternatively, to stay the federal action, asking the district court to refuse to exercise its discretionary jurisdiction. See Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (noting that "district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, [ 28 U.S.C. § 2201(a),] even when the suit otherwise satisfies subject matter jurisdictional prerequisites"). As of the filing of these petitions, the district court has not yet ruled on that motion, and the federal action remains pending.

On October 13, 2017, Precision filed in the Williamses' action in the trial court a "crossclaim complaint" against Nautilus and LFC ("the state action"). In its complaint, Precision asserted the following claims against both Nautilus and LFC: (1) a claim seeking a judgment declaring that Nautilus and LFC are obligated to defend and indemnify Precision against the Williamses' claims; (2) an abnormal bad-faith claim; (3) a bad-faith-failure-to-settle claim; (4) a breach-of-the-enhanced-duty-of-good-faith claim; (5) a fraud claim, alleging that Nautilus and LFC misrepresented to Precision that the policy provided coverage for claims such as the Williamses'; and (6) a negligence claim, alleging that Nautilus and LFC "had a duty to sell an insurance policy to Precision ... that provides coverage for its business operations and for any potential claims [to which it] might be exposed ...."

Nautilus filed a motion to dismiss the claims against it in the state action, arguing that Precision's claims against it were compulsory counterclaims that Precision was required to file in the federal action pursuant to § 6-5-440, Ala. Code 1975, the abatement statute. LFC, arguing that Precision's complaint failed to state a claim against LFC upon which relief could be granted, filed a motion to dismiss the claims against it in the state action pursuant to Rule 12(b)(6), Ala. R. Civ. P. Alternatively, LFC argued that, if the trial court dismissed Nautilus from the state action, then LFC was also entitled to a dismissal under Rule 19, Ala. R. Civ. P., which provides for the joinder of persons needed for just adjudication, because, according to LFC, Nautilus is an indispensable party to Precision's claims against LFC.

On November 15, 2017, the trial court, without specifying its reasons, entered separate orders denying Nautilus's and LFC's motions to dismiss, and Nautilus and LFC separately petitioned this Court for writs of mandamus directing the trial court to vacate those orders. Nautilus's petition was assigned case no. 1170170; LFC's petition was assigned case no. 1170235. We consolidated the two petitions for the purpose of writing a single opinion, but because the petitions assert different grounds for issuing the writs, we address the petitions separately.

Standard of Review

"The standard of review applied to a petition seeking the issuance of a writ of mandamus is well settled:
" '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 Caremark Rx, LLC, 229 So.3d 751, 756 (Ala. 2017) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ).

Case no. 1170170 (Nautilus)

In its petition to this Court, Nautilus makes the same argument it made in its motion to dismiss the state action, i.e., that it is entitled to a dismissal from the state action under § 6-5-440 because, Nautilus says, Precision's claims against it are compulsory counterclaims in the federal action, which was pending when Precision commenced the state action. "Mandamus is the appropriate remedy to correct a trial court's failure to properly apply § 6-5-440." Ex parte J.E. Estes Wood Co., 42 So.3d 104, 108 (Ala. 2010). "When the facts underlying a motion filed pursuant to § 6-5-440 are undisputed, as is the case here, our review of the application of the law to the facts is de novo." Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 969 (Ala. 2007).

Section 6-5-440 provides:

"No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times."

Regarding the operation of § 6-5-440, this Court has stated:

"This Code section, by its plain language, forbids a party from prosecuting two actions for the 'same cause' and against the 'same party.' This Court has previously held that an action pending in a federal court falls within the coverage of this Code section:
" ' "The phrase 'courts of this state,' as used in § 6-5-440, includes all federal courts located in Alabama. This Court has consistently refused to allow a person to prosecute an action in a state court while another action on the same cause and against the same parties is pending in a federal court in this State." '
" Ex parte University of South Alabama Found., 788 So.2d 161, 164 (Ala. 2000) (quoting Weaver v. Hood, 577 So.2d 440, 442 (Ala. 1991) (citations in Weaver omitted in University of South Alabama ) ). Additionally, a compulsory counterclaim is considered an 'action' for purposes of § 6-5-440. Penick v. Cado Sys. of Cent. Alabama, Inc., 628 So.2d 598, 599 (Ala. 1993). As this Court has noted:
" 'This Court has held that the obligation ... to assert compulsory counterclaims, when read in conjunction with § 6-5-440, Ala. Code 1975, which prohibits a party from prosecuting two actions for the same cause and against the same party, is tantamount to making the defendant with a compulsory counterclaim in the first action a "plaintiff" in that action (for purposes of § 6-5-440 ) as of the time of its commencement. See, e.g., Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala. 1995) ; Penick v. Cado Systems of Cent. Alabama, Inc., 628 So.2d 598 (Ala. 1993) ; Ex parte Canal Ins. Co., 534 So.2d 582 (Ala. 1988). Thus, the defendant subject to the counterclaim rule who commences another action has violated the prohibition in § 6-5-440 against maintaining two actions for the same cause.'
" Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999). See also University of South Alabama Found., 788 So.2d at 165 (holding that a party in an action pending in a federal court was subject to the counterclaim rule and thus violated § 6-5-440 by commencing another action in a state court); Ex parte Parsons & Whittemore Alabama Pine Constr. Corp., 658 So.2d 414 (Ala. 1995) (holding that the prosecution in a subsequent action of claims that had been compulsory counterclaims in a previously filed declaratory-judgment action violated § 6-5-440 )."

Ex parte Norfolk S. Ry., 992 So.2d 1286, 1289-90 (Ala. 2008).

In this case, Precision is a defendant and Nautilus a plaintiff in the federal action, which undisputedly had been filed and was pending when Precision commenced the state action. Thus, as we explained in Norfolk, if Precision's claims against Nautilus in the state action are compulsory counterclaims in the federal action, then Precision is a "plaintiff" in the federal action for purposes of § 6-5-440 and, as such, is precluded under that statute from asserting those claims in a later-filed action, i.e., the state action. See Ex parte Brooks Ins. Agency, 125 So.3d 706, 710 (Ala. 2013) (holding that § 6-5-440 mandated the dismissal of an insured's claims filed in a state-court action because those claims were compulsory counterclaims in the insurer's first-filed, declaratory-judgment action in federal court); and Ex parte Canal Ins. Co., 534 So.2d 582 (Ala. 1988) (same). However, before addressing whether Precision's claims against Nautilus are compulsory counterclaims in the federal action, we must first address Precision's argument that § 6-5-440 is not applicable in this case, despite the fact that Nautilus filed the federal action before Precision filed the state action and regardless of whether Precision's claims are compulsory counterclaims in the federal action. In support of its argument, Precision cites Metropolitan, supra.

In Metropolitan, Fred D. Gray filed a claim under a homeowner's insurance policy he had with Metropolitan Property and Casualty Insurance Company ("Metropolitan"). Metropolitan subsequently filed a declaratory-judgment action in the United States District Court for the Middle District of Alabama, seeking a declaration that Gray's loss was not covered by his policy. However, the federal court entered an order stating that the allegations in Metropolitan's complaint were insufficient to invoke that court's jurisdiction under 28 U.S.C. § 1332, the diversity statute. Although the federal court gave Metropolitan leave to amend its complaint to correct that deficiency, Gray filed an action against Metropolitan in the Macon Circuit Court before Metropolitan filed its amended complaint. Metropolitan moved the state court to dismiss Gray's action on the ground that Gray's claims were compulsory counterclaims in Metropolitan's federal-court action. The state court denied Metropolitan's motion, and Metropolitan petitioned this Court for a writ of mandamus, arguing that Gray was barred under § 6-5-440 from bringing his claims in the state-court action. In denying Metropolitan's petition, this Court stated:

"We agree with Gray that a determination that the federal-court action was pending at the time of the commencement of the state-court action is essential to the reliance by the insurer ... on [ § 6-5-440 ]. The federal court's finding that the allegations of Metropolitan's original complaint were 'insufficient to invoke this court's jurisdiction under 28 U.S.C. 1332 ' calls into question the existence of the essential prerequisite of priority of the federal-court action."

Metropolitan, 974 So.2d at 971.

This Court noted that Metropolitan had not argued that its amended complaint related back to the filing of its original complaint, and the Court therefore did not address that issue. Rather, in the absence of such argument, the Court merely held that it was questionable whether the federal-court action had priority and that, as a result, Metropolitan had failed to carry its burden of demonstrating that it had a clear legal right to dismissal from the state-court action under § 6-5-440.

Precision contends that, under Metropolitan, when there is a question as to the court's jurisdiction in a first-filed action, § 6-5-440 does not mandate the dismissal of a later-filed action asserting claims that would be compulsory counterclaims in the first-filed action. Given that premise, Precision points to the fact that, in this case, the district court has yet to rule on Precision's motion to dismiss or to stay the federal action. Thus, Precision argues, the district court might ultimately choose not to exercise its discretionary jurisdiction over the federal action, and, therefore, "there is a question as to the jurisdiction" of the district court, just as, Precision says, there was in Metropolitan. Precision's response to Nautilus's petition, at 10.

However, Metropolitan is distinguishable from this case. In Metropolitan, there was not, as Precision contends, a question as to the jurisdiction of the federal court; Metropolitan clearly indicates that Metropolitan's amended complaint invoked that court's jurisdiction. Metropolitan, 974 So.2d at 971. Rather, because Metropolitan's original complaint failed to invoke the federal court's jurisdiction, and because Gray filed the state-court action before Metropolitan corrected that deficiency, there was a question as to which action had priority. In this case, it is undisputed that the allegations in Nautilus's complaint in the federal action, which Nautilus filed before Precision filed the state action, were sufficient to invoke the district court's diversity jurisdiction, and nothing in the materials before this Court indicates that the district court elected not to exercise its discretionary jurisdiction over the federal action. As a result, there is no question, as there was in Metropolitan, that the federal action has priority over the state action. Precision's speculation that the district court might decide at some future moment not to exercise its discretionary jurisdiction over the federal action does not call into question the priority of the federal action. The circumstances here are not analogous to the circumstances in Metropolitan, where the substance of Metropolitan's original complaint and the timing of the parties' filings raised an actual, existing question as to whether Metropolitan's federal-court action had priority over Gray's state-court action. Thus, Metropolitan provides no support for Precision's argument. Accordingly, as noted earlier, because the federal action has priority over the state action, § 6-5-440 mandates the dismissal of Precision's claims against Nautilus in the state action if those claims are compulsory counterclaims in the federal action.

Nautilus argues that Precision's claims against it are compulsory counterclaims in the federal action because, Nautilus says, both its claims in the federal action and Precision's claims in the state action

"arise out of Nautilus's issuance of the [p]olicy to Precision, Precision's demand that Nautilus defend and indemnify Precision against the Williamses' claims, and Nautilus's provision of a defense under reservation of rights. Hence, the claims arise out of the same transaction or occurrence and are based on the same operative facts."

Petition, at 15-16. We agree with Nautilus.

In determining whether a counterclaim is compulsory, this Court applies the logical-relationship test.

" 'A counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.' Committee Comments on 1973 adoption of Rule 13, [Ala. R. Civ. P.,] ¶ 6. Under the logical-relationship standard, a counterclaim is compulsory if '(1) its trial in the original action would avoid a substantial duplication of effort or (2) the original claim and the counterclaim arose out of the same aggregate core of operative facts.' Ex parte Canal Ins. Co., 534 So.2d 582, 584 (Ala. 1988) (quoting Brooks v. Peoples Nat'l Bank of Huntsville, 414 So.2d 917, 919 (Ala. 1982) ). In determining whether the claims 'arose out of the same aggregate core of operative facts,' this Court must determine whether '(1) the facts taken as a whole serve as the basis for both claims or (2) the sum total of facts upon which the original claim rests creates legal rights in a party which would otherwise remain dormant.' Canal Ins., 534 So.2d at 584."

Ex parte Cincinnati Ins. Cos., 806 So.2d 376, 380 (Ala. 2001).

As noted above, the crux of the federal action is Nautilus's obligations, if any, and Precision's rights, if any, under the policy. Likewise, Precision's declaratory-judgment claim and its claims of abnormal bad faith, bad-faith failure to settle, breach of the enhanced duty of good faith, fraud, and negligence are based upon either Nautilus's alleged refusal to perform what, Precision says, are Nautilus's duties under the policy or Nautilus's alleged misconduct in issuing the policy. Thus, the policy is the nucleus of each party's claims, and it is the facts concerning Nautilus's issuance of the policy, the facts concerning the manner in which Nautilus is handling Precision's claim under the policy, and the interpretation of relevant terms of the policy that "serve as the basis for" the parties' claims, or, put differently, the claims all " 'arose out of the same aggregate core of operative facts.' " Cincinnati Ins. Cos., 806 So.2d at 380 (quoting Canal Ins., 534 So. 2d at 584 ). As a result, litigating the parties' claims in the same forum would avoid "a substantial duplication of effort." Id. It would " 'avoid circuity of actions and ... enable the court to settle all related claims in one action and thereby avoid a wasteful multiplicity of litigation on claims that arose from a single transaction or occurrence.' " 806 So.2d at 379 (quoting Grow Grp., Inc. v. Industrial Corrosion Control, Inc., 601 So.2d 934, 936 (Ala. 1992) ). Accordingly, Precision's claims against Nautilus meet the logical-relationship test and are therefore compulsory counterclaims in the federal action. This Court's caselaw in similar cases between an insurer and its insured is in accord. See, e.g., Brooks Ins. Agency, 125 So.3d at 710 (holding that, under § 6-5-440, the insurer's first-filed, declaratory-judgment action in federal court precluded the insured's later-filed, state-court action because "all the claims in both the federal court and the state court arise from the same facts and circumstances-Nationwide's issuance of the insurance policies to Guster and its handling of Guster's ... claim"); Cincinnati Ins. Cos., 806 So.2d at 381 (holding that the insured's state-court claims that "depend[ed] on the homeowner's policy" that was the subject of the insurer's first-filed, declaratory-judgment action in federal court "meet the logical-relationship test" and noting that "[i]t would have served the purposes of Rule 13 [, Ala. R. Civ. P.,] for [the insured] to have litigated her claims against [the insurer] in the same action in which [the insurer] sought a declaration of its rights and obligations under the homeowner's insurance policy; it would have avoided a multiplicity of actions, and all matters could have been resolved in one action"); and Canal Ins. Co., 534 So.2d at 583 (holding that, under § 6-5-440, the insurer's first-filed, declaratory-judgment action in federal court precluded the insured's later-filed, state-court action in a case where "[t]he facts and circumstances alleged in support of [the insured's] complaint arose out of the issuance of the insurance policy and the proof of loss claim filed with [the insurer]").

Because the federal action had been filed and was pending when Precision filed the state action, and because the claims Precision asserted against Nautilus in the state action are compulsory counterclaims in the federal action, Nautilus has demonstrated that it has a clear legal right under § 6-5-440 to dismissal from the state action. Accordingly, we grant the petition and issue the writ directing the trial court to enter an order dismissing Nautilus from the state action.

Case no. 1170235 (LFC)

As a threshold matter, we note that Precision contends in its brief to this Court that it has amended its complaint to clarify that its declaratory-judgment claim and its claims alleging abnormal bad faith, bad-faith failure to settle, and breach of the enhanced duty of good faith are asserted against Nautilus only. Precision has attached to its brief a copy of its amended complaint, which confirms Precision's contention that it is not asserting those four claims against LFC. See Precision's brief, Exhibit E. LFC agrees that Precision's amended complaint clarified that those four claims are no longer asserted against LFC. See LFC's reply brief, at 8. Accordingly, in addressing whether LFC has a clear legal right to dismissal of Precision's claims, we are concerned only with Precision's fraud and negligence claims against LFC.

Initially, LFC argues that it was entitled to a dismissal of Precision's claims under Rule 12(b)(6) because, LFC says, those claims fail to state a claim upon which relief can be granted. However, the denial of a motion to dismiss based upon Rule 12(b)(6) is not reviewable by petition for a writ of mandamus. Ex parte Kohlberg Kravis Roberts & Co., L.P., 78 So.3d 959 (Ala. 2011). "Any alleged error in the [trial] court's decision to deny [LFC's] motion to dismiss for failure to state a claim ... can be adequately remedied by appeal." 78 So.3d at 979. Accordingly, we do not address LFC's arguments in this regard.

LFC also argues that it was entitled to a dismissal of Precision's claims under Rule 19, which, as noted, provides for the joinder of persons needed for just adjudication, i.e., an indispensable party. LFC argues that, if Nautilus is dismissed from the state action (as it is to be pursuant to this opinion), then Precision's claims against LFC are also due to be dismissed because, LFC says, Nautilus is an indispensable party to those claims. However, LFC has not cited any authority indicating that the denial of a motion to dismiss predicated upon a failure to join an indispensable party is an issue properly reviewable by petition for a writ of mandamus. See Ex parte U.S. Bank Nat'l Ass'n, 148 So.3d 1060, 1064 (Ala. 2014) (setting forth the issues this Court will review by petition for a writ of mandamus).

Regardless, even if this issue is reviewable by petition for a writ of mandamus, LFC has failed to satisfy each of the four elements required for issuance of the extraordinary writ. Specifically, LFC has failed to demonstrate that the trial court had " 'an imperative duty ... to perform, accompanied by a refusal to do so.' " Caremark, 229 So.3d at 756 (quoting Integon Corp., 672 So.2d at 499 ) (emphasis added). Granted, if Nautilus was an absent indispensable party to Precision's claims against LFC, the trial court would have had a duty to dismiss the state action without prejudice. See Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1022 (Ala. 2003) (" 'The absence of a necessary and indispensable party necessitates the dismissal of the cause without prejudice or a reversal with directions to allow the cause to stand over for amendment.' " (quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 850-51 (Ala. 1981) ) ). However, Precision included Nautilus as a defendant in the state action, and the trial court denied Nautilus's motion to dismiss. Thus, Nautilus has been a party to the state action since its inception. As a result, it would be illogical to conclude that the trial court had a duty to dismiss the state action for failure to join Nautilus, and that it refused to do so, when Nautilus has, at all times in the proceedings below, been a party to the action. It is only after this Court's decision in case no. 1170170 that Nautilus will no longer be a party to the state action, and it is therefore only after the issuance of this opinion that the trial court could even potentially incur any duty to dismiss the state action for failure to join an indispensable party. Thus, because LFC cannot demonstrate that the trial court had a duty to dismiss the state action for failure to join an indispensable party and that it refused to do so, LFC is not entitled to the writ on that basis. Caremark, supra.

Lastly, LFC argues that it is entitled to a dismissal of Precision's claims because, LFC says, those claims are not ripe for adjudication and, thus, the trial court's subject-matter jurisdiction over those claims was not invoked. See Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562 (Ala. 2005) ("Ripeness implicates subject-matter jurisdiction."). The only authority LFC cites in support of its argument is Ex parte Safeway Insurance Co. of Alabama, 990 So.2d 344 (Ala. 2008), in which this Court held that an insured's bad-faith claim against its insurer for refusal to pay uninsured-motorist benefits was not ripe-and thus did not invoke the trial court's subject-matter jurisdiction-until the insured established the amount of his damages. 990 So.2d at 352. This case, however, does not concern uninsured-motorist benefits, and nothing in Safeway provides that Precision's claims of fraud and negligence with respect to LFC's procurement of insurance are not ripe at this stage of the proceedings.

More significantly, even if we assume that Safeway is analogous to this case, LFC ignores this Court's more recent decision in Ex parte Safeway Insurance Co. of Alabama, 148 So.3d 39 (Ala. 2013), in which this Court concluded that an insured's assertion of a bad-faith claim for refusal to pay uninsured-motorist benefits before any adjudication of the uninsured motorist's liability and the amount of damages was not a ripeness issue that affected the trial court's subject-matter jurisdiction. In rejecting the insurer's argument that the insured's bad-faith claim was not ripe and that the trial court therefore lacked subject-matter jurisdiction over the claim, this Court stated:

"We disagree that the trial court lacks subject-matter jurisdiction. The trial court does have the authority to hear the case and may dismiss it on the merits. The outcome of the case ought to depend on a Rule 12(b)(6) motion to dismiss, not a Rule 12(b)(1) [ (lack of subject-matter jurisdiction) ] motion to dismiss, and proving fault and damages ought to be an evidentiary or elemental prerequisite for showing an insurer's bad-faith failure to pay benefits, not a jurisdictional prerequisite."

148 So.3d at 42 (third and fourth emphasis added; footnote omitted). That is to say, the insured's bad-faith claim, filed before the uninsured motorist's liability and the resulting damages had been established, potentially suffered from a defect in merit but, regardless, did not deprive the trial court of subject-matter jurisdiction over the claim.

In this case, LFC argues that Precision cannot recover against LFC for fraudulently procuring inadequate insurance or for negligently failing to procure adequate insurance unless and until Precision is actually denied coverage for, or a defense against, the Williamses' claims. In accord with the more recent Safeway decision, that argument goes to Precision's ability to prove the merits of its claims, not to the subject-matter jurisdiction of the trial court to preside over those claims. See Safeway, 148 So.3d at 43 ("There are ... no problems with subject-matter jurisdiction merely because a party files an action that ostensibly lacks a probability of merit."). The trial court, as a court of general jurisdiction, Ala. Const. 1901, Art. VI, § 142, clearly has " ' "the constitutional and statutory authority" to hear' " the types of claims Precision has asserted against LFC. Id. (quoting Russell v. State, 51 So.3d 1026, 1028 (Ala. 2010), quoting in turn Ex parte Seymour, 946 So.2d 536, 538 (Ala. 2006) ). Thus, LFC has not demonstrated that it has a clear legal right to dismissal from the state action based on a lack of subject-matter jurisdiction over Precision's claims.

Conclusion

Nautilus has demonstrated that, under § 6-5-440, it has a clear legal right to dismissal from the state action. Accordingly, we grant Nautilus's petition and issue the writ directing the trial court to dismiss Nautilus from the state action. LFC has failed to carry its burden of demonstrating that it has a clear legal right to dismissal from the state action. Accordingly, LFC's petition is due to be and is hereby denied.

1170170-PETITION GRANTED; WRIT ISSUED.

1170235-PETITION DENIED.

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

      Williams's complaint named other defendants who are not parties to these appellate proceedings.

      Although Precision labeled its claims "cross-claims," those claims are actually third-party claims because neither Nautilus nor LFC was a party to the Williamses' action. Compare Rule 13(g), Ala. R. Civ. P., providing that a party may assert cross-claims against a co-party, with Rule 14(a), Ala. R. Civ. P., providing that a defendant may file, as a third-party plaintiff, a complaint "upon a person not a party to the action." (Emphasis added.)

      Nautilus's complaint indicates that Nautilus is a citizen of Arizona; that Precision and the Williamses are citizens of Alabama; and that the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332 (providing that federal district courts have jurisdiction of all civil actions in which the matter in controversy exceeds $75,000 and citizens of different states are involved).

      We note that Precision's amended complaint also asserted a breach-of-fiduciary-duty claim against LFC. However, Precision filed the amended complaint after the trial court denied LFC's motion to dismiss, and nothing in the materials before this Court indicates that LFC has moved the trial court to dismiss that claim. Accordingly, we are not concerned with that claim in this opinion, and nothing herein should be construed as a commentary on that claim.

      To be clear, we offer no opinion on whether Nautilus is an indispensable party to Precision's claims against LFC. We simply note that, even if it is, the trial court, to this point, has had no duty to dismiss the state action for failure to join Nautilus and, thus, cannot be held in error for refusing to perform a duty it was never required to perform.


author: MOORE, Judge.

text:
    G.R.B. v. L.J.B.
    2160976
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Christopher G. McCary, of Legal Services Alabama, Inc., Birmingham, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

G.R.B. ("the wife") appeals from a judgment entered by the Clay Circuit Court ("the trial court") divorcing her from L.J.B. ("the husband") to the extent that the trial court determined that the husband is not the father of G.P.B. ("the child"). We reverse the trial court's judgment.

Procedural History

On January 18, 2017, the husband filed a complaint seeking a divorce from the wife. He alleged, among other things, that he had signed the child's birth certificate as the father of the child but that he was not the child's biological father. The husband requested that the trial court order DNA testing to determine the child's paternity. On January 30, 2017, the wife answered and counterclaimed for a divorce. She alleged that the husband had had his name placed on the child's birth certificate with knowledge that he was not the child's biological father, that the husband "[had] chose[n] to act fully in the role of and [to] be the child's father in every way after acknowledging the child as his own at the child's birth," that the husband and the child had "developed a father-child relationship for near[ly] ten years," and that "[i]rreparable harm may result to the child if [the husband] is successfully disproved as the child's father." On February 2, 2017, the husband answered the wife's counterclaim.

After a trial, the trial court entered a judgment on June 20, 2017, divorcing the parties and providing, in pertinent part:

"It is undisputed that the [husband] is not the biological father of the ... child, however he signed an Acknowledgment of Paternity at her birth. The child's biological mother is [R.H.,] the [wife's daughter from a previous relationship] and the [husband's] stepdaughter. Both parties testified that [R.H.] was addicted to drugs at the time of the birth of the ... child and [that the husband had] signed the acknowledgment in an effort to keep the child from being placed in foster care. The child is now 11 years old and has not seen the [husband] in approximately two years.
"The [husband] filed for divorce in this matter and has asked the Court to issue a ruling declaring him not to be the legal father of the ... child. Caselaw supports the [husband's] right to contest paternity of the ... child. However, in response the [wife] has asserted ... § 26-17-608 of the Alabama Code [1975,] which serves to Estopp [sic] the denial of paternity based on several factors enumerated in the statute. Of those factors contained in the statute, the Court was concerned most with the nature and relationship of the child and the [husband].
"The Court heard extensive testimony regarding this factor. The parties both testified that [the child] was told that the [husband] is not her father but disputed at what time she was made aware of this. Additionally, both testified the child was aware of who her biological mother is and had known from an early age.
"The Court finds from the testimony that the [husband] was not held out to be [the child's] father and in fact the [wife] testified that she made a point to let people know he was not. Additionally, both parties testified that [R.H.] has been actively involved in [the child's] life. It appears from the testimony that the parentage of the child was not a secret to anyone and therefore will not adversely affect the ... child.
"Based upon the pleadings and testimony given it is ORDERED, ADJUDGED AND DECREED as follows[:]
"....
"5. That the [husband] is not the legal father of the ... child, ... and therefore shall not be ordered or required to pay child support to the [wife]."

On July 18, 2017, the wife filed a postjudgment motion. That motion was denied on July 20, 2017. On August 28, 2017, the wife filed her notice of appeal.

Facts

The husband and the wife married on October 7, 1995, and no biological children were born of their marriage. On June 20, 2004, the wife's daughter from a previous relationship, R.H., gave birth to the child. According to the parties, R.H. was using drugs at the time of the child's birth, and the parties had been concerned that the Department of Human Resources might place the child in foster care. It is undisputed that, because of the parties' concerns, the husband and R.H. had executed a form, which was made available by the Alabama Center for Health Statistics and entitled "State of Alabama Affidavit of Paternity," representing that the husband was the father of the child. The husband admitted that he and the wife had taken the child into their home and that he and R.H. had subsequently consented to the wife's adopting the child. Both the husband and the wife testified that the child knows that R.H. is her biological mother and that R.H. has been involved in the child's life, albeit not consistently. Neither the husband nor the wife had knowledge of the identity of the child's biological father.

The husband admitted that he had held himself out to be the child's father, had attended school functions as the child's father, had supported the child, and had taken the child fishing. The child bears the husband's surname. The husband testified that the child is his child for all practical purposes and that she has called him "daddy" her entire life. It is undisputed, however, that the husband and the wife had made it known to others that the husband is not the child's biological father because, they said, they did not want people to think that the husband had had sex with R.H. The husband also testified that he had informed the child that he is not her biological father. The wife testified that the child had found out that the husband is not her biological father right before the husband moved out of the marital residence, which was approximately two years before the trial.

It is undisputed that, at the time of the trial, the husband had not visited with the child since he had moved out of the marital residence. In fact, the wife had requested a protection-from-abuse order, to which the husband had consented. Pursuant to that order, the husband had not been allowed to be near the child or the wife.

The husband testified that he did not think he should be required to support the child since he is not her biological father. He specifically stated:

"She's not my biological child. I done [sic] this to keep the child with her family instead of being threw [sic] in a system and lost in a system. Yes, I've been a father to the child when nobody else has. But it's not right for me to have to pay for another woman and another man's mistakes. They are the ones that laid down, got pregnant. And I'm going to have to pay for it the rest of my life? It's not right; not to me."

The husband admitted, however, that he had not taken any steps to withdraw his acknowledgment of paternity of the child until he commenced the divorce action.

The wife testified that she receives Social Security disability benefits in the amount of $735 per month. According to the wife, after the husband had moved out of the marital residence, she had been unable to pay the monthly mortgage payment, and, therefore, the mortgage had been foreclosed upon. The wife testified that, at the time of the trial, she and the child were residing in public housing.

Discussion

On appeal, the wife argues that the trial court erred in concluding that the husband was not estopped from denying his paternity of the child. Specifically, she argues that the trial court failed to apply the statutory factors in § 26-17-608, Ala. Code 1975, in making its determination and, instead, relied upon factors that are irrelevant to the determination. Section 26-17-608 provides, in pertinent part:

"(a) In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the court may deny a complaint seeking to disprove paternity if the court determines that:
"(1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and
"(2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.
"(b) When determining whether to deny the complaint, the court shall consider the following factors:
"(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
"(2) the length of time during which the presumed or acknowledged father has assumed the role of father of the child;
"(3) the facts surrounding the presumed or acknowledged father's discovery of his possible nonpaternity;
"(4) the nature of the relationship between the child and the presumed or acknowledged father;
"(5) the age of the child;
"(6) the harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
"(7) the nature of the relationship between the child and any alleged father;
"(8) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
"(9) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child."

The Uniform Comment to § 26-17-608 states, in pertinent part:

"This section incorporates the doctrine of paternity by estoppel, which extends equally to a child with a presumed father or an acknowledged father. In appropriate circumstances, the court may deny genetic testing and find the presumed or acknowledged father to be the father of the child. The most common situation in which estoppel should be applied arises when a man knows that a child is not, or may not be, his genetic child, but the man has affirmatively accepted his role as child's father and both the mother and the child have relied on that acceptance."

In its judgment, the trial court stated that it had heavily relied on the factor concerning the "nature and relationship of the child and the alleged father." It then noted that the child knows who her biological mother is and also knows that the husband is not her biological father. It further concluded that the husband "was not held out to be [the child's] father and in fact the [wife] testified that she made a point to let people know he was not [the child's biological father]." It finally concluded that, because the fact that the husband is not the child's biological father is not a secret, the child would not be harmed by a determination that the husband is not her father.

The trial court's reliance on the fact that it is known that the husband is not the child's biological father in its consideration of the "nature and relationship of the child and the alleged father" is misplaced. Our supreme court has stated: "[T]he United States Supreme Court and this Court have held that biological ties are not as important as parent-child relationships that give young children emotional stability." Ex parte T.J., 89 So.3d 744, 747 (Ala. 2012). Regardless of whether a child is aware of the lack of a biological connection with his or her acknowledged or presumed father, that child is still subject to potential harm from allowing an acknowledged or presumed father to disprove his paternity; indeed, a child stands to lose a parent-child relationship and the emotional and financial support and stability associated therewith. The actual parent-child relationship, not simply whether a child is aware of the lack of a biological connection with his or her acknowledged or presumed father, should be the focus of the consideration regarding the "nature of the relationship between the child and the presumed or acknowledged father." § 26-16-608(b)(4).

Although § 26-17-608 has not yet been closely examined by an Alabama appellate court, the Superior Court of Pennsylvania analyzed the issue of "paternity by estoppel" in a similar case cited by the wife in her brief to this court. See Zadori v. Zadori, 443 Pa. Super. 192, 661 A.2d 370 (1995). In Zadori, the evidence indicated that Thomas Zadori had known that the child at issue in that case was not his biological child from the time the child was born. 443 Pa. Super. at 196, 661 A.2d at 372. Notwithstanding the lack of a biological connection, Thomas had "agreed to amend the child's birth certificate to list himself as the birth father," had lived with the child and the child's mother for almost three years, and had "provided for the physical, medical and emotional needs of the child." Zadori, 443 Pa. Super. at 196, 661 A.2d at 373. The Superior Court of Pennsylvania explained: " 'Estoppel in paternity actions is merely the legal determination that because of a person's conduct (e.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage....' " Zadori, 443 Pa. Super. at 195-96, 661 A.2d at 372 (quoting Freedman v. McCandless, 539 Pa. 584, 591-92, 654 A.2d 529, 532-33 (1995) ). The court held that, despite the fact that Thomas had known that he was not the child's biological father, because of his actions in establishing a parent-child relationship, the trial court had correctly determined that Thomas was estopped from denying paternity of the child. Zadori, 443 Pa. Super. at 196, 661 A.2d at 373.

In another Pennsylvania case, Lynn v. Powell, 809 A.2d 927 (Pa. Super. Ct. 2002), the facts indicated that, although the wife and the husband were married when the child at issue was born, the wife and the husband had both known that the husband was not the father of the child. The evidence indicated that the husband and the wife had appeared on "ABC-TV's national program 'Primetime Live' and, in reiterating their story on national television, [had] pronounced that husband was not [the child's] father." Lynn, 809 A.2d at 929. However, despite the husband's knowledge that he was not the biological father of the child, the husband was listed on the child's birth certificate and the child used the husband's surname; furthermore, the husband had provided health-insurance coverage and "day-to-day care, love and shelter" for the child. Lynn, 809 A.2d at 930. The Superior Court of Pennsylvania found that the "husband's conduct is conclusive of his acceptance of his role as [the child's] father," and, thus, it held, he and the wife were estopped from denying his paternity of the child Id.

We conclude that the reasoning in the above-cited Pennsylvania cases is in line with this state's policy of considering the actual parent-child relationship as opposed to simply the knowledge of the lack of a biological connection in determining issues of paternity. Therefore, we find those cases to be additional support for our conclusion that the actual parent-child relationship should be the focus of the consideration regarding the "nature of the relationship between the child and the presumed or acknowledged father." § 26-17-608(b)(4).

To be sure, courts in other states have held that the doctrine of paternity by estoppel could not be applied when the child at issue was aware that the presumed or acknowledged father was not the child's biological father. See, e.g., J.R.A. v. G.D.A., 314 S.W.3d 764, 768-69 (Ky. Ct. App. 2010) (declining to apply estoppel when the child knew that J.R.A. was not her biological father and J.R.A. had "made no material misrepresentation to [the child]"); and T.P.D. v. A.C.D., 981 P.2d 116, 120 (Alaska 1999) (noting that the element of reliance to establish equitable estoppel had not been met when the child knew that the presumed father was not the child's biological father). We note, however, that J.R.A. and T.P.D. were decided using the principles of equitable estoppel, not the factors and principles set forth in this state's statutory law.

In Alabama, the factors required to be considered and set forth by our legislature in § 26-17-608 do not require that the child's knowledge of the lack of a biological connection be considered whatsoever; indeed, the factors focus on such considerations as how long the presumed or acknowledged father "assumed the role of father of the child" and "the nature of the relationship between the child and the presumed or acknowledged father." § 26-17-608(b)(2) and (4) (emphasis added). As explained previously, the consideration of "the nature of the relationship" should be focused on the actual parent-child relationship and not whether a child has knowledge that there is no biological connection between him or her and the presumed or acknowledged father. Considering the plain language of § 26-17-608 and this state's policy of protecting the actual parent-child relationship, we conclude that the reasoning in J.R.A. and T.P.D. are inapplicable here.

Because we conclude that the trial court misapplied § 26-17-608 in this case, we reverse the trial court's judgment to the extent that it determined that the husband is not the father of the child. We remand this cause for the trial court to apply the factors in § 26-17-608 in light of the principles set forth in this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      During the marriage, the parties adopted V.M.B., who was 16 years old at the time of the trial. V.M.B. is also the biological daughter of R.H., and she was residing with R.H. at the time of the trial. There were no issues regarding V.M.B. raised at the trial, and no issues regarding V.M.B. have been raised on appeal.

      We note that the trial court concluded that the husband had signed an "Acknowledgment of Paternity." The husband admitted that he had signed a document acknowledging his paternity of the child, and neither party raised the issue whether the "State of Alabama Affidavit of Paternity" is a valid acknowledgment under Ala. Code 1975, § 26-17-302. "On appeal, this court is limited to considering the case in the context and under the theories upon which it was tried in the proceedings below." Grieser v. Advanced Disposal Servs. Alabama, LLC, 252 So.3d 664, 671 (Ala. Civ. App. 2017) ; see also Vulcraft, Inc. v. Wilbanks, 54 Ala. App. 393, 395, 309 So.2d 105, 106 (Civ. 1975). Therefore, on appeal we do not examine the issue of the validity of the acknowledgment or the issue whether the husband was the presumed father of the child under Ala. Code 1975, § 26-17-204.

      We further note that the Uniform Comment to § 26-17-204, Ala. Code 1975, states that the principles in § 26-17-608 may be used "in appropriate circumstances to deny requests for genetic testing in the interests of preserving a child's ties to the presumed or acknowledged father who openly held himself out as the child's father regardless of whether he is in fact the genetic father."

      Specifically, in T.P.D., the Supreme Court of Alaska stated that, in order to establish equitable estoppel in that "paternity disestablishment case[ ]," the elements of representation and reasonable reliance would be satisfied if
      "(1) the husband [had] represented directly or implicitly to the child that he is the father, (2) the husband [had] intended his representation to be accepted and acted on by the child, (3) the child [had] relied on the representation and treated the husband as a father and gave his love and affection to the husband, and (4) the child was ignorant of the true facts."
      981 P.2d at 119.


author: DONALDSON, Judge.

text:
    Trista Lynn ROGERS v. Robert ROGERS III
    2161028
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Joan-Marie Sullivan, Huntsville, for appellant.
    Joan Olszewski of Minor & Olszewski, L.L.C, Montgomery; and Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellee.
   DONALDSON, Judge.

Trista Lynn Rogers ("the mother") appeals from judgments of the Franklin Circuit Court ("the trial court") granting Robert Rogers III ("the father") sole physical custody of G.L.R. and L.A.R. ("the children") and child support from the mother. The mother filed a motion to alter, amend, or vacate the judgments pursuant to Rule 59, Ala. R. Civ. P., and requested a hearing. The trial court denied the motion without conducting the requested hearing. Because we determine that at least a portion of the postjudgment motion had probable merit, we reverse the order denying the motion and remand the cause for a hearing to be held on the mother's motion.

Facts and Procedural History

On June 17, 2015, the trial court entered a judgment divorcing the parties. The divorce judgment, which incorporated an agreement reached by the parties, granted the parties joint legal and physical custody of the children. On June 14, 2016, the father filed a complaint seeking modification of the divorce judgment to obtain sole legal and physical custody of the children, child support from the mother, and a finding of contempt against the mother for noncompliance with the divorce judgment. The mother filed an answer and a counterclaim seeking sole legal and physical custody of the children, child support from the father, and a finding of contempt against the father. A guardian ad litem was appointed to represent the children's interests.

On July 1, 2016, the mother filed a motion requesting that Judge Terry Dempsey, who had been presiding over the case, recuse himself. On July 5, 2016, the trial court entered an order denying the motion to recuse. On July 11, 2016, the mother filed a petition for a writ of mandamus to this court seeking an order directing Judge Dempsey to recuse himself. This court denied the mother's petition, holding that, even though Judge Dempsey had previously recused himself in the parties' divorce action, the present action was a separate case and the mother had not demonstrated a clear legal right to the recusal of Judge Dempsey in this action. Ex parte Rogers, 218 So.3d 859, 867 (Ala. Civ. App. 2016).

On August 2, 2016, the parties reached a mediated agreement regarding the father's visitation pending the outcome of the case. The parties did not reach an agreement as to the other issues in the case.

On March 23, 24, and 27, 2017, the trial court conducted a hearing in which it received ore tenus testimony. At the time of the hearing, G.L.R. was seven years old and L.A.R. was five years old. During the hearing, the parties presented testimony regarding the issue of the custody of the children. Although the mother submitted a "Child-Support-Obligation Income Statement/Affidavit" ("CS-41 form"), the father did not submit a CS-41 form or present testimony as to his income.

On April 17, 2017, the guardian ad litem filed a report of her findings in the case. In the report, the guardian ad litem recommended modifying the divorce judgment to grant the father sole physical custody of the children with visitation to the mother and to order the mother to pay the father child support. On April 21, 2017, the mother filed a motion to strike the guardian ad litem's report. On April 23, 2017, the trial court entered an order denying the mother's motion to strike.

On May 3, 2017, the trial court entered a judgment that granted the father sole physical custody of the children with visitation to the mother. In the judgment, the trial court stated: "The Court reserves jurisdiction to set child support. The father did not submit an income affidavit and the Court does not feel comfortable computing child support without the affidavit. The mother has already submitted an affidavit." The trial court denied all other relief not addressed in the judgment.

On May 31, 2017, the mother filed a motion to alter, amend, or vacate the May 3, 2017, judgment. On June 23, 2017, the father filed a motion seeking a judgment regarding child support. The father attached to his motion a CS-41 form and a copy of a paycheck stub.

On August 7, 2017, the trial court entered a judgment ordering the mother to pay $699 a month to the father as child support. Later on the same day, the trial court entered an order denying the mother's May 31, 2017, motion.

On September 5, 2017, the mother filed a motion to alter, amend, or vacate the May 3, 2017, judgment and the August 7, 2017, judgment, requesting a hearing on the motion. In her motion, the mother argued that the trial court had lacked subject-matter jurisdiction to enter the August 7, 2017, judgment and that, if the trial court did have jurisdiction, the entry of the judgment without the opportunity to rebut the information in the father's CS-41 form denied the mother due process. Among other arguments, the mother also argued that insufficient evidence supported the grant of child support to the father and the change in custody. The mother further argued that the lack of opportunity to cross-examine the guardian ad litem about the findings contained in the guardian ad litem's report infringed on the mother's due-process rights.

On September 8, 2017, the trial court entered an order denying the mother's September 5, 2017, motion. On September 14, 2017, the mother filed a notice of appeal to this court. We have jurisdiction pursuant to § 12-3-10, Ala. Code 1975.

Discussion

I.

We first consider the mother's argument that the trial court lacked subject-matter jurisdiction to enter the August 7, 2017, judgment ordering the mother to pay child support. The mother argues that, because, in the May 3, 2017, judgment, the trial court reserved ruling on the child-support issue, that judgment was final and that, after 30 days had passed, the trial court lacked jurisdiction to enter the August 7, 2017, judgment.

"A final judgment is one that completely adjudicates all matters in controversy between the parties." Wilson v. Glasheen, 801 So.2d 848, 849 (Ala. Civ. App. 2001). " '[A] trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment' " if a motion pursuant to Rule 59, Ala. R. Civ. P., has not been filed. Burgoon v. Burgoon, 846 So.2d 1096, 1097 (Ala. Civ. App. 2002) (quoting Henderson v. Koveleski, 717 So.2d 803, 806 (Ala. Civ. App. 1998) ). However, a judgment that does not adjudicate all the parties' claims is not final, and such a judgment "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Rule 54(b), Ala. R. Civ. P. In this case, the father's claim for child support remained pending after the entry of the May 3, 2017, judgment. "Where a party has requested child support and the trial court's purported judgment contains no conclusive assessment of the child-support obligation, the trial court has not completely adjudicated the matters in controversy between the parties." Anderson v. Anderson, 899 So.2d 1008, 1009 (Ala. Civ. App. 2004). Therefore, the May 3, 2017, judgment was not final, and the trial court did not lose jurisdiction 30 days after its entry. See Wilson v. Glasheen, 801 So.2d at 849 (holding that an order was not final because it did not adjudicate a party's child-support claim).

In support of her argument, the mother cites Parker v. Parker, 946 So.2d 480 (Ala. Civ. App. 2006), in which this court held that a judgment was final even though the trial court had reserved ruling on the issue of child support. We stated that "the trial judge ha[d] 'reserved' ruling on the issue of child support because of the mother's apparent lack of income." 946 So.2d at 486. We noted that, unlike the judgment in Tomlinson v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001), in which we held the judgment was final, the trial court had not reserved ruling on child support "pending the occurrence of some specific event, like the submission of child-support forms." Id. This court determined that the purported "reservation" of child support was, in effect, an order that child support was not to be paid based on the facts presented and that such a "reservation" was essentially a recognition that the father could seek a grant of child support in the future if circumstances changed. Accordingly, we stated that "the purported 'reservation' of the issue of child support does not change the fact that the trial court's judgment does not award child support; therefore, it is as final as any child-support judgment can be." Id.

The mother asserts that the May 3, 2017, judgment is final like the judgment in Parker because it reserves ruling on the child-support issue without referring to a pending event such as a future hearing or the submission of a CS-41 form. However, in Parker, the trial court denied the requested relief, i.e., did not grant child support, because the mother, the noncustodial parent, was unemployed. The evidence in this case indicates that both parties were employed at the time of the hearing, and the trial court's reservation of the issue did not amount to denial of the relief. See Lowe v. Lowe, 85 So.3d 1023, 1025 n.2 (Ala. Civ. App. 2011) (distinguishing judgment that reserved ruling on child-support issue from judgment in Parker because there was no indication that noncustodial party was unemployed or lacked sufficient income to pay child support). As asserted in his complaint, the father's child-support claim was before the trial court, and the trial court specifically stated that it was not ruling on the child-support issue because it lacked the father's CS-41 form. We cannot conclude that the trial court's reserved ruling amounted to a final adjudication denying the grant of child support to the father.

II.

The mother contends that denying her postjudgment motion without a hearing constitutes reversible error. The mother requested a hearing on her postjudgment motion filed on September 5, 2017. Rule 59(g), Ala. R. Civ. P., provides, in part, that a postjudgment motion "shall not be ruled upon until the parties have had opportunity to be heard thereon." The trial court did not conduct the requested hearing before denying the postjudgment motion in its September 8, 2017, order.

" 'Generally, when a party requests a hearing on a postjudgment motion [pursuant to Rule 59 ], the court must grant that request.' Mobile Cnty. Dep't of Human Res. v. C.S., 89 So.3d 780, 784 (Ala. Civ. App. 2012). Rule 59(g), Ala. R. Civ. P., provides that a postjudgment motion 'shall not be ruled upon until the parties have had opportunity to be heard thereon.'
" 'Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. For example, if an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule. See Rule 45, Ala. R. App. P.; and Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala. 1993) ("failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it 'probably injuriously affected substantial rights of the parties' ").'
" Flagstar Enters., Inc. v. Foster, 779 So.2d [1220,] 1221 [ (Ala. 2000) ]."

A.J. v. E.W., 167 So.3d 362, 367 (Ala. Civ. App. 2014).

"Error 'is reversible error only if it "probably injuriously affected substantial rights of the parties." ' Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala. 1993) (quoting Rule 45, Ala. R. Civ. P., and citing Greene v. Thompson, 554 So.2d 376, 380-81 (Ala. 1989), and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala. 1989) ). 'If the failure to conduct a hearing did not " 'injuriously affect[ ] [the] substantial rights of the parties,' " that failure, while error, was harmless.' DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1236 (Ala. Civ. App. 2012) (quoting Kitchens, 623 So.2d at 1088 )."

Frazier v. Curry, 119 So.3d 1195, 1198 (Ala. Civ. App. 2013).

On appeal, the mother raises the argument made in her September 5, 2017, postjudgment motion that the trial court's entry of the August 7, 2017, judgment regarding child support denied the mother the opportunity to controvert the information contained in the father's CS-41 form. In J.H.F. v. P.S.F., 835 So.2d 1024 (Ala. Civ. App. 2002), the trial court entered a judgment divorcing the parties, granting sole physical custody to the mother, and ordering the father to pay child support. After the parties had submitted postjudgment motions, the trial court entered an order eliminating a provision in the divorce judgment that automatically increased the father's child-support obligation at a future date. The mother filed a postjudgment motion, and, upon the trial court's order, the parties submitted new CS-41 forms. The trial court then entered an order decreasing the father's child-support obligation. The mother filed another postjudgment motion, and the trial court entered an order denying that motion without conducting a hearing. On appeal, this court stated:

"The trial court based its $200 per month reduction in the father's child-support obligation solely on the new evidence the father presented in his income affidavit; it did not afford the mother an opportunity to dispute that evidence. We find that the trial court should have conducted a hearing. See Martin v. Martin, 637 So.2d 901, 903 (Ala. Civ. App. 1994) ('[I]f one party's statement of income form is disputed by the other party, then that issue can be resolved by competent evidence at the trial court level.'). Given the particular facts of this case, we cannot conclude that the trial court's failure to conduct the requested Rule 59, Ala. R. Civ. P., hearing before altering the father's child-support obligation based on new evidence was harmless error. Therefore, we must reverse as to this issue."

J.H.F. v. P.S.F., 835 So.2d at 1032.

In its May 3, 2017, judgment, the trial court in this case reserved ruling on the child-support issue, stating that it lacked the father's CS-41 form. After the father submitted a CS-41 form, the trial court entered the August 7, 2017, judgment ordering the mother to pay the father $699 a month in child support. The trial court thus relied, in part, on the father's CS-41 form to calculate the amount of the child-support obligation. The mother filed a postjudgment motion that, in part, argued that the granting of child support was not supported by sufficient evidence and that she had not been allowed to contest the information contained in the father's CS-41 form. The trial court denied that motion without a hearing. The mother, therefore, was deprived of the opportunity to dispute newly submitted evidence in the father's CS-41 form. In accordance with J.H.F. v. P.S.F., the denial of the mother's postjudgment motion without conducting a hearing was not harmless error.

For the foregoing reasons, we reverse the trial court's September 8, 2017, order denying the mother's postjudgment motion, and we remand the cause to the trial court to conduct a hearing on the issues raised in her postjudgment motion. Although the mother raised other arguments in her postjudgment motion, the lack of a hearing on the issue of child support is dispositive, and we pretermit discussion of the other arguments raised by the mother. See Henderson v. Henderson, 123 So.3d 974, 977-78 (Ala. Civ. App. 2013).

The mother's request for attorney fees on appeal is denied.

REVERSED AND REMANDED.

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

Thomas, J., concurs in the result, without writing.

      "Of course, Rule 60(b), Ala. R. Civ. P., provides a mechanism by which a trial court can provide relief beyond that 30-day period in certain extraordinary circumstances ...." Ex parte Caremark Rx, LLC, 229 So.3d 751, 757 n.2 (Ala. 2017).

      We note that the mother filed a motion purportedly pursuant to Rule 59 after the entry of the May 3, 2017, judgment. Therefore, even if that judgment had been final, the trial court retained jurisdiction to address any errors in the judgment. See Henderson v. Koveleski, 717 So.2d 803, 806 (Ala. Civ. App. 1998) ("[A] trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party's Rule 59(e) motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion.").

      In particular, the mother questions the accuracy of the amounts listed in the father's CS-41 form for gross monthly income and for work-related child-care expenses.