author: STUART, Chief Justice. BOLIN, Justice (dissenting).

text:
    EX PARTE ALABAMA POWER COMPANY
    (In re: Alabama Power Company v. Michael C. Armstrong et al.)
    1161161
    Supreme Court of Alabama.
    March 2, 2018
    Jason B. Tompkins, James A. Bradford, and Steven C. Corhern of Balch & Bingham LLP, Birmingham; and Billy L. Church of Church Brogdon, PC, Pell City, for petitioner.
    J. Douglas Fields, Jr., of Fields Law Firm, LLC, Birmingham, for respondents Michael C. Armstrong, Donna Armstrong, and Victoria Gendron; Robert Gendron, pro se; and Annalise Gendron, pro se.
   STUART, Chief Justice.

Alabama Power Company petitions this Court for a writ of mandamus directing the St. Clair Circuit Court ("the circuit court") to dismiss an appeal filed by Michael C. Armstrong, Donna Armstrong, Victoria Gendron, Robert Gendron, and Annalise Gendron (hereinafter referred to collectively as "the property owners") challenging a judgment entered by the St. Clair County Probate Court ("the probate court") in a condemnation proceeding brought by Alabama Power. We deny the petition.

I.

On March 13, 2017, Alabama Power initiated condemnation proceedings in the probate court seeking to obtain easements across three parcels of property in St. Clair County for the purpose of erecting new power-transmission lines. The property owners were served notice of the complaint for condemnation and, at hearings conducted on April 25, 2017, and May 10, 2017, the probate court heard the arguments of the parties and received evidence. See § 18-1A-276, Ala. Code 1975 ("The probate court shall conduct a hearing within 45 days after the filing of the complaint [for condemnation] ... and, within 10 days after the hearing, shall make an order granting or refusing the complaint."). On May 18, 2017, the probate court granted Alabama Power's complaint and appointed three commissioners to determine the compensation Alabama Power would be required to pay the property owners to complete the condemnation process (this order is hereinafter referred to as "the May 18 order granting the complaint"). The commissioners thereafter submitted their report to the probate court recommending awards of $44,961 in favor of Michael and Donna Armstrong, $66,284 in favor of Victoria Gendron, and $48,787 in favor of Robert and Annalise Gendron. On June 8, 2017, the probate court entered an order, consistent with § 18-1A-282, Ala. Code 1975, adopting the report filed by the commissioners and declaring that Alabama Power would obtain the desired easements upon its payment of the assessed amounts (this order is hereinafter referred to as "the June 8 order of condemnation"). The June 8 order of condemnation also notified the parties of their right to appeal the probate court's decision pursuant to § 18-1A-283, Ala. Code 1975, which provides, in relevant part, that "[a]ny of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal."

On June 15, 2017, the property owners filed a notice of appeal in the probate court. That notice described itself as "the parties' notice of appeal of the order of this Court, dated May 18, 2017, granting [Alabama Power's] petition for condemnation," and further stated that it was "brought in accord with ... [§] 18-1A-283." On July 5, 2017, the probate court transferred the case to the circuit court for the trial de novo contemplated by § 18-1A-283, stating in its order of transfer:

"This court, having received timely notices of appeal[ ] filed on June 15, 2017, by [the property owners] in accord with [ § 18-1A-283 ] on this court's condemnation order of May 18, 2017, and the court's subsequent order confirming report of commissioners of June [8], 2017, hereby transfers this action in its entirety and on all issues to be adjudicated de novo, to the circuit court of St. Clair County, Alabama."

On July 11, 2017, Alabama Power moved the circuit court to dismiss the property owners' appeal, arguing that the property owners had failed to comply strictly with § 18-1A-283. Specifically, Alabama Power argued that the notice of appeal filed by the property owners indicated that they sought review of the May 18 order granting the complaint; however, Alabama Power argued, § 18-1A-283 and controlling caselaw, see, e.g., Ex parte City of Irondale, 686 So.2d 1127 (Ala. 1996), indicate that only the June 8 order of condemnation is appealable. Accordingly, Alabama Power argued, the circuit court lacked jurisdiction over the appeal. The circuit court subsequently conducted a hearing on Alabama Power's motion and, on August 15, 2017, denied the motion by written order, explaining:

"The court finds that the reference to the [May 18 order granting the complaint] in [the property owners'] notice of appeal was inadvertent. This is not a case where [the property owners] failed to file a notice of appeal or missed the filing deadline. This is a case where [the property owners] fully complied with applicable law and filed a notice of appeal that arguably included a reference to the wrong order-which this court deems inconsequential and not fatal to [the property owners'] compliance with the requirements of § 18-1A-283.
"Upon consideration of the entire record and facts presented to this court, it is abundantly clear that [the property owners] intended to appeal from the [June 8] order of condemnation in compliance with § 18-1A-283. It is also abundantly clear that the probate court's order of transfer of appeal confirms that the notice of appeal applied to the [June 8] order of condemnation and was 'in accord with § 18-1A-283.' "

On September 26, 2017, Alabama Power petitioned this Court for mandamus review, and, on November 15, 2017, this Court entered an order staying all proceedings in the circuit court while Alabama Power's petition was under review.

II.

Alabama Power argues that the circuit court should have granted its motion to dismiss because, it says, the property owners' failure to strictly comply with § 18-1A-283 leaves the circuit court with no jurisdiction over the appeal. As explained in Ex parte Hampton, 189 So.3d 14 (Ala. 2015), this matter is an appropriate subject for mandamus review; we accordingly apply the standard of review set forth in that opinion:

" ' " 'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ; see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).' Ex parte Carter, [807 So.2d 534,] 536 [ (Ala. 2001) ]."
" ' Ex parte McWilliams, 812 So.2d 318, 321 (Ala. 2001).
" ' "Subject to certain narrow exceptions ..., we have held that, because an 'adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).'
" Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala. 2011). The narrow exceptions when mandamus review is available include when the petitioner challenges the subject-matter jurisdiction of the trial court, Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala. 2007), or when the petitioner asserts immunity. Ex parte Alabama Peace Officers' Standards & Training Comm'n, 34 So.3d 1248 (Ala. 2009)."

189 So.3d at 16 (emphasis added).

III.

In determining whether Alabama Power is entitled to the mandamus relief it seeks, we must determine whether it had a clear legal right to have its motion to dismiss granted. We begin that analysis by first noting that the law is clear that an aggrieved party resisting an eminent-domain taking cannot appeal the preliminary order granting a complaint for condemnation; rather, the party must wait until the order of condemnation is entered pursuant to § 18-1A-282 before any appeal can be filed. See McCoy v. Garren, 384 So.2d 1113, 1114 (Ala. Civ. App. 1980) ("No appeal from the preliminary order of condemnation is provided for in § 18-1-11[, Ala. Code 1975 ]. Although at one time this section of the Code did permit appeals from the preliminary order of condemnation, the Code section no longer permits such an appeal."). Nevertheless, after the order of condemnation is entered, an aggrieved party may appeal to the circuit court pursuant to § 18-1A-283, and, during the ensuing trial de novo, that aggrieved party can challenge both whether condemnation was appropriate-the subject of the preliminary order granting the complaint for condemnation-and the compensation awarded in the subsequent order of condemnation. See State v. SouthTrust Bank of Baldwin Cty., 634 So.2d 561, 563 (Ala. Civ. App. 1994) ("On appeal, the circuit court tries the case de novo on both the issue of whether the property should be condemned and, if condemned, the issue of what compensation and damages are due the parties with an interest in the condemned property."). This statutory process promotes judicial economy inasmuch as it avoids a scenario where a property owner resisting an eminent-domain taking might have to pursue two separate appeals if the owner objects not only to the taking, but also to the subsequently awarded compensation.

Accordingly, if the property owners' appeal is viewed as an attempted appeal of the May 18 order granting the complaint, it must be dismissed, and Alabama Power is entitled to the relief it seeks. Ex parte City of Irondale, 686 So.2d at 1129, McCoy, 384 So.2d at 1114-15. Alabama Power argues that a plain reading of the property owners' notice of appeal requires this result inasmuch as that notice of appeal represents itself to be "the parties' notice of appeal of the order of this Court, dated May 18, 2017, granting [Alabama Power's] petition for condemnation." The property owners, however, emphasize that neither § 18-1A-283 nor any caselaw interpreting that statute imposes any specific requirements upon what must be included in a notice of appeal filed pursuant to that statute, other than the requirement that the notice be "written." Accordingly, they argue that their notice of appeal, which explicitly stated that it was "brought in accord with ... [§] 18-1A-283"-which statute authorizes an appeal of only a final order of condemnation-was effective as to the June 8 order of condemnation. They further state that it was always their intent to appeal the June 8 order of condemnation and that they believed their notice of appeal did in fact do so. They further explain that they referenced the May 18 order granting the complaint in their notice of appeal only to make clear that they intended to challenge on appeal not only the awarded compensation, but also the propriety of the taking.

In Boutwell v. State, 988 So.2d 1015, 1022-23 (Ala. 2007), this Court recognized the "confusing" nature and "unwieldiness" of the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala. Code 1975, which was enacted in 1985 and which blended existing Alabama statutes with provisions of the Uniform Eminent Domain Code. Boutwell involved a case in which the State sought to condemn certain property in Covington County to widen a federal highway between Opp and Andalusia. 988 So.2d at 1017. Thirty days after the Covington County Probate Court entered the final order of condemnation, the property owner contacted the court to verify the deadline for filing an appeal pursuant to § 18-1A-283 ; the court mistakenly told him that he had until the next day when, in actuality, any notice of appeal was due that same day. 988 So.2d at 1018. In accord with the instruction received from the court, the property owner filed his notice of appeal the next day; however, after the matter was transferred to the Covington Circuit Court, the State moved to dismiss the appeal as untimely. Id. The circuit court ultimately granted the State's motion, and, even after the probate judge submitted an affidavit explaining her error, the circuit court declined to reconsider. Id.

The property owner appealed the matter to the Court of Civil Appeals, which directed the circuit court to reinstate the appeal, and, on certiorari review, this Court affirmed the Court of Civil Appeals' decision, explaining that, even though the property owner's appeal was untimely, "the doctrine of equitable estoppel should be available to allow [the property owner] to proceed with [his] appeal." 988 So.2d at 1024. Citing previous cases in which appellants had filed presumptively untimely appeals based on incomplete or incorrect information received from probate courts, see Ex parte Tanner, 553 So.2d 598 (Ala. 1989), and from circuit court clerk's offices, see Sparks v. Alabama Power Co., 679 So.2d 678 (Ala. 1996), the Boutwell Court explained that " 'every litigant must receive fair and just treatment from the court system of this State,' " 988 So.2d at 1027 (quoting Sparks, 679 So.2d at 681 ), and that, as part of that principle, litigants must be able to rely on information they receive from the court system.

Here, § 18-1A-283 provided the property owners with 30 days, or until Monday, July 10, 2017, to appeal the June 8 order of condemnation. See Rule 6(a), Ala. R. Civ. P. In fact, they filed a notice of appeal on June 15, unquestionably within that period. As the circuit court subsequently stated in its order denying Alabama Power's motion to dismiss, that notice of appeal "arguably included a reference to the wrong order"; however, we note that it was nevertheless a "written notice of appeal" invoking § 18-1A-283 that was properly filed in the probate court after the June 8 order of condemnation. Thus, this is not a case presenting a clear jurisdictional problem such as a missed deadline, see, e.g., Ex parte City of Irondale, 686 So.2d at 1128 (notice of appeal of August 21 order was not filed in the probate court until September 28, more than 30 days after appealable order was entered), or a notice of appeal filed in the wrong court, see, e.g., Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala. Civ. App. 1999) (holding that "a notice of appeal filed in the circuit court within the 30-day period will not suffice to perfect an appeal pursuant § 18-1A-283"). Therefore, and consistent with the equitable principles applied in Boutwell, Sparks, and Ex parte Tanner, and discussed further below, we agree with the circuit court that it would be unjust and inappropriate to dismiss the property owners' appeal.

After the property owners filed their notice of appeal, which they assert they believe encompassed the June 8 order of condemnation, the probate court, on July 5, 2017, entered an order of transfer affirmatively confirming that belief inasmuch as the order stated that it was transferring "this action in its entirety and on all issues" based upon the "timely notices of appeal filed ... by [the property owners] ... on this court's condemnation order of May 18, 2017, and the court's subsequent order confirming report of commissioners of June [8], 2017" (emphasis added). Thus, this transfer order essentially told the property owners that they had successfully navigated the "confusing" statutory process for appealing the judgment entered by a probate court in a condemnation action and put them on notice that, in accordance with that process, a trial de novo would thereafter be held in the circuit court without the necessity of their filing any other notice of appeal. Had the probate court's July 5 transfer order notified the property owners that it found their notice of appeal to be vague or in some way deficient-instead of ordering a transfer of the action-the property owners would have still had time to correct that deficiency before the period for filing an appeal expired. However, because the probate court understood the property owners'

notice of appeal to encompass the June 8 order of condemnation, no such notice of deficiency was given, and the property owners instead reasonably relied on the probate court's representation that their notice of appeal was effective and that the action had been transferred to the circuit court. It would be unjust in these circumstances, and contrary to the equitable principles articulated in Boutwell, Sparks, and Ex parte Tanner, for this Court now to declare that the property owners' notice of appeal was in some way deficient so as to render it ineffective.

IV.

Alabama Power petitioned this Court for a writ of mandamus directing the circuit court to dismiss the property owners' appeal challenging a judgment entered by the probate court in a condemnation proceeding brought by Alabama Power. However, for the reasons explained above, the circuit court properly denied Alabama Power's motion to dismiss, and Alabama Power is not entitled to the relief it now seeks. Accordingly, the petition for the writ of mandamus is denied.

PETITION DENIED.

Parker, Shaw, Main, Wise, and Mendheim, JJ., concur.

Bolin, J., dissents.

Sellers, J., recuses himself.

BOLIN, Justice (dissenting).

I believe the plain words of the notice of appeal filed by the property owners in this condemnation proceeding point to the order appealed from-a nonappealable order granting Alabama Power Company's complaint and appointing commissioners to determine the compensation Alabama Power would be required to pay the property owners. Therefore, I must respectfully dissent.

Chapter 1A, Title 18, Ala. Code 1975, establishes the procedure for petitioning to condemn property interests, and § 18-1A-283, Ala. Code 1975, provides the only order from which an appeal can be taken, stating:

"Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal, a copy of which shall be served on the opposite party or his attorney, and on such appeal, the trial shall be de novo, and it shall be necessary to send up the proceedings only as to the parties appearing or against whom an appeal is taken."

A probate court enters two orders in an eminent-domain proceeding: an order either granting or denying the complaint in accordance with § 18-1A-276, Ala. Code 1975, and, if the complaint is granted, an order of condemnation in accordance with § 18-1A-282, Ala. Code 1975.

The burden is on the aggrieved party wanting to appeal to comply with § 18-1A-283, which sets out the appellate process and provides that the order from which an appeal may be taken is the order of condemnation. The requirements for the order of condemnation are specified in § 18-1A-282. Pursuant to § 18-1A-282, the probate court, after receiving the commissioners' report assessing damages for the taking,

"must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed. A notice of entry of said order and the amount of the award shall immediately be mailed by first class mail to each party whose address is known, together with a notice of the right to appeal therefrom to the circuit court within 30 days from the date of said order."

This Court has held that § 18-1A-283 is the only provision for appeals from probate court eminent-domain orders, and it provides for appeals from orders of condemnation. Ex parte City of Irondale, 686 So.2d 1127, 1129 (Ala. 1996). As the main opinion recognizes, the law is clear that a landowner opposing an eminent-domain taking cannot appeal the preliminary order granting the complaint for condemnation.

The notice of appeal in the present case states:

"Come Now, the undersigned, J. Douglas C. Fields, Jr., Esquire, Counsel for the Defendants, Michael C. Armstrong, Donna Armstrong, and Victoria Gendron, jointly, with Defendants Robert Gendron and Annalise Gendron, Pro Se, and submit this, the parties' Notice of Appeal of the Order of this Court, dated May 18, 2017, granting Plaintiff's Petition for Condemnation. This Appeal is brought in accord with Code of Alabama (1975), Section 18-1A-283."

Clearly, the object of the property owners' notice of appeal was the probate court's May 18, 2017, order granting the petition for condemnation. The fact that the notice of appeal was filed after the probate court entered the June 8, 2017, order of condemnation does not nullify the fact that the property owners attempted to appeal from the probate court's preliminary order granting Alabama Power's complaint for condemnation.

In Ex parte City of Irondale, supra, the probate court entered an order condemning the landowner's property and awarding it to the city. Subsequently, the city filed a motion to amend the order to include the landowner's husband based on an earlier transfer of the property. The landowners filed a notice of appeal. The probate court then entered a final amended order of condemnation. The landowners argued that their appeal was timely, even though the notice of appeal was filed before the entry of the final condemnation order because Rule 4, Ala. R. App. P., requires that a premature notice of appeal be held in abeyance and is deemed filed on the date the final order is entered. This Court held that the appeal was untimely because § 18-1A-283 expressly governs appeals from the probate court in eminent-domain proceedings. Because the landowners failed to comply strictly with § 18-1A-283, the circuit court lacked jurisdiction to hear their appeal.

In Pace v. Utilities Board of City of Foley, 752 So.2d 510, 511 (Ala. Civ. App. 1999), the landowner filed a notice of appeal in the circuit court within 30 days of the order of condemnation, but the landowner did not file a notice of appeal in the probate court until 34 days after the order of condemnation had been entered. The Court of Civil Appeals noted that § 18-1A-283 required the landowner to file the notice of appeal in the probate court. Even though the notice of appeal had been timely filed in the circuit court, the Court of Civil Appeals dismissed the case for lack of jurisdiction, concluding that "a notice of appeal filed in the circuit court within the 30-day period will not suffice to perfect an appeal pursuant to § 18-1A-283. Further, we note that the notice of appeal filed in the probate court ... came too late to perfect an appeal pursuant to § 18-1A-283." 752 So.2d at 511.

In the present case, the property owners did not comply strictly with the requirements of § 18-1A-283. The notice of appeal was not from the order of condemnation but from the preliminary order granting Alabama Power's complaint. I believe that, not having jurisdiction to hear the property owners' appeal, the circuit court erred in denying Alabama Power's motion to dismiss.

      Section 18-1A-282 provides:
      "The commissioners must, within 20 days from their appointment, make a report in writing to the probate court stating the amount of damages and compensation ascertained and assessed by them for the owners of each tract of land ... and thereupon, within seven days, the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed."

      The probate court's reference to plural "notices of appeal" appears to be in regard to the fact that the singular notice of appeal filed on June 15 was jointly filed by the five property owners, three of whom were represented by the attorney who prepared the notice of appeal and two of whom were proceeding pro se. This June 15 notice of appeal was the only notice of appeal filed by the property owners in the probate court.

      Section 18-1-11 was replaced by § 18-1A-276 effective January 1, 1986, when Chapter 1 of Title 18, Ala. Code 1975, was repealed and replaced by Chapter 1A.

      However, as explained in State Highway Department v. Headrick Outdoor Advertising, Inc., 594 So.2d 1202, 1204-05 (Ala. 1992), the doctrine of equitable estoppel applies only to representations of fact, not representations of law. See also Moore v. Brown, 52 11 How. U.S. 414, 428, 13 L.Ed. 751 (1850) (Taney, Chief Justice, dissenting) ("[A]s a general principle, every one is chargeable with a knowledge of the law in civil as well as criminal cases.").

      This case is accordingly distinguishable from McCoy, where it was evident that the aggrieved property owners were attempting to appeal the initial order granting the complaint for condemnation because they filed their notice of appeal before the order of condemnation was entered. 384 So.2d at 1115 (holding that the "notice of appeal, which was filed on November 8, 1978, was filed before the order of condemnation from which an appeal could be taken" and that the circuit court accordingly had no jurisdiction to hear the appeal).


source: Caselaw Access Project

author: PARKER, Justice. WISE, Justice (concurring in part and dissenting in part). MENDHEIM, Justice (concurring in part and dissenting in part).

license: Public Domain

text:
    EX PARTE INDUSTRIAL WAREHOUSE SERVICES, INC.
    (In re: Chapman Wilson, as administrator of the Estate of Janie Holt Wilson, deceased v. Kenneth Oneal Herbert et al.)
    Ex parte Industrial Warehouse Services, Inc.
    (In re: Olivia Taylor, as administrator of the Estate of Willie James Taylor, Jr., deceased v. Kenneth Oneal Herbert et al.)
    1170013 1170087
    Supreme Court of Alabama.
    March 2, 2018
    Joseph H. Driver, Brett A. Ross, and Margaret H. Manuel of Carr Allison, Birmingham; and Jack W. Meigs, Centreville, for petitioner Industrial Warehouse Services, Inc.
    Ted L. Mann and Robert Potter of Mann & Potter, P.C., Birmingham, for respondent Olivia Taylor; and John M. Gibbs of Gibbs & Sellers, P.C., Demopolis, for respondent Chapman Wilson.
    Ed. R. Haden and Michael P. Taunton of Balch & Bingham LLP, Birmingham; Sharon D. Stuart of Christian & Small LLP, Birmingham; and Mark D. Hess of Hand Arendall, LLC, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.
    David M. Wilson and James E. Mitchell, Jr., of Wilson & Berryhill, P.C., Birmingham, for amici curiae Alabama Trucking Association, Inc., and Trucking Industry Defense Association, in support of the petitioner.
   PARKER, Justice.

Industrial Warehouse Services, Inc. ("IWS"), petitions this Court, in two separate petitions, for writs of mandamus directing the Bibb Circuit Court to vacate its order denying IWS's motion for a protective order concerning certain discovery requested by Chapman Wilson, as administrator of the estate of Janie Holt Wilson, deceased ("Wilson"), and by Olivia Taylor, as administrator of the estate of Willie James Taylor, Jr., deceased ("Taylor"), and to enter a protective order pursuant to Rule 26(c), Ala. R. Civ. P. We grant the petitions in part and deny them in part and issue the writs.

Facts and Procedural History

On April 20, 2017, a truck driven by Kenneth Oneal Herbert, an employee of IWS, collided with a vehicle driven by Willie James Taylor, Jr. ("Willie"); Janie Holt Wilson ("Janie") was a passenger in the vehicle. Willie and Janie died from injuries incurred as a result of the accident.

On May 3, 2017, Wilson sued IWS, among others, asserting various tort claims. On May 5, 2017, Taylor also sued IWS, among others, asserting various tort claims. The circuit court consolidated the cases.

Also on May 5, 2017, Wilson and Taylor requested that IWS respond to several interrogatories and produce numerous documents. Before responding to the discovery requests, IWS notified Wilson and Taylor that they had requested "materials from IWS ... that are proprietary to IWS and contain confidential information and/or trade secrets" and requested that the parties develop an agreed-upon protective order. The parties then engaged in negotiations over the language of the proposed protective order. IWS did not object to producing any of the requested discovery but sought to limit the use of the discovered information to the litigation of these consolidated cases. Wilson's and Taylor's trial attorneys, on the other hand, sought to use the discovery for purposes beyond the instant litigation. Specifically, Wilson's and Taylor's trial attorneys sought to be able to use the discovered information in any future litigation against IWS and to share the discovered information with other plaintiffs' attorneys. Ultimately, the parties could not agree on a protective order.

On August 25, 2017, Wilson and Taylor filed a motion to compel IWS to fully respond to their discovery requests. On the same day, IWS filed a motion for a protective order "with regard to the production of certain confidential and/or proprietary materials." Specifically, IWS sought to prohibit the dissemination by Wilson and Taylor of its bills of lading and its operations and safety manuals. Although the rule is not cited by IWS, it appears that IWS sought a protective order pursuant to Rule 26(c)(7), Ala. R. Civ. P., which states:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way ....

On September 20, 2017, Wilson and Taylor filed a response to IWS's motion for a protective order arguing that IWS had failed to meet its burden of demonstrating good cause for the requested protective order. Wilson and Taylor argued that IWS had not demonstrated that the information in IWS's bills of lading and operations and safety manuals was actually "a trade secret or other confidential research, development, or commercial information."

On September 25, 2017, following a hearing at which the parties presented arguments, the circuit court denied IWS's motion for a protective order. The circuit court held that IWS "failed to establish 'good cause' under Rule 26(c) [, Ala. R. Civ. P.,] that the requested production would create ... an annoyance, embarrassment, oppression, or undue burden or expense or that the documents constitute confidential or proprietary information deserving of special protection." The circuit court noted that IWS "failed to produce any affidavits, testimony or other evidence suggesting that the records sought by [Wilson and Taylor] are somehow confidential and proprietary."

On October 2, 2017, IWS filed a motion requesting that the circuit court reconsider its ruling denying IWS's motion for a protective order. In support of its motion to reconsider, IWS attached the affidavit testimony of Phyllis Hahn, IWS's director of safety and human resources. Hahn's affidavit testimony indicated that IWS's bills of lading include some information that is subject to confidentiality agreements IWS has entered into with its clients. Hahn's affidavit testimony states that allowing IWS's clients' information on the bills of lading to be made public "could easily be interpreted by our clients as a breach of confidentiality." Hahn also states in her affidavit testimony that IWS's bills of lading are "essentially ... a client list" that, if made public, would allow IWS's competitors an unfair advantage. Hahn's affidavit testimony also indicates that IWS's operations and safety manuals are "created in-house" or "purchased from reputable trucking compliance companies" and "are incorporated into our particular business model and practice and, therefore, unique to our company." On October 4, 2017, Wilson and Taylor filed a response to IWS's motion to reconsider and a motion to strike Hahn's affidavit testimony as untimely.

On October 5, 2017, the circuit court denied IWS's motion to reconsider and struck Hahn's affidavit testimony. IWS filed its mandamus petitions with this Court on October 6, 2017.

Standard of Review
" ' " In Ex parte Norfolk Southern Ry., 897 So.2d 290 (Ala. 2004), this Court delineated the limited circumstances under which review of a discovery order is available by a petition for a writ of mandamus and the standard for that review in light of Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003) :
" ' " ' "Mandamus is an extraordinary remedy and will be granted only when there is '(1) a clear legal right in the petitioner to the order sought, (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (3) the lack of another adequate remedy, and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). In Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003), this Court announced that it would no longer review discovery orders pursuant to extraordinary writs. However, we did identify four circumstances in which a discovery order may be reviewed by a petition for a writ of mandamus. Such circumstances arise (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So.2d 640, 644-45 (Ala. 2001) ; (b) when a discovery order compels the production of patently irrelevant or duplicative documents the production of which clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit received by the requesting party, see, e.g., Ex parte Compass Bank, 686 So.2d 1135, 1138 (Ala. 1996) ; (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome of the case has been all but determined and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that an appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case-that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So.2d 423, 426 (Ala. 1992).' "
" ' " 897 So.2d at 291-92 (quoting Ex parte Dillard Dep't Stores, Inc., 879 So.2d 1134, 1136-37 (Ala. 2003) ).' "
" Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355, 360 (Ala. 2008) (quoting Ex parte Orkin, Inc., 960 So.2d 635, 638 (Ala. 2006) )."

Ex parte Bosch LLC, 177 So.3d 884, 890-91 (Ala. 2014). IWS argues that the circuit court's order denying its motion for a protective order pertains to a trade-secret privilege and thus is reviewable under category (a) ("[A] discovery order may be reviewed by a petition for a writ of mandamus ... when a privilege is disregarded ....").

Further, this Court stated in Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala. 1996) :

"Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court [exceeded] its discretion. Ex parte Clarke, 582 So.2d 1064, 1067 (Ala. 1991) ; Ex parte McTier, 414 So.2d 460 (Ala. 1982)."

Discussion

The issue before this Court is whether the circuit court exceeded its discretion in denying IWS's motion for a protective order. Rule 26(c), Ala. R. Civ. P., quoted earlier, vests the circuit court with authority to enter a protective order. Rule 26(c)(7) allows for a protective order to be entered to protect trade secrets or other confidential information. As set forth in Rule 26(c)(7), a protective order may be entered only upon a showing of good cause for the protection sought. In Ex parte Cuna Mutual Insurance Society, 507 So.2d 1328, 1329 (Ala. 1987), this Court stated that "it is the movant's burden to show good cause why the protective order should be granted." IWS, as the movant, had the burden of demonstrating good cause for the protective order it seeks. In the present case, the circuit court held that IWS "failed to establish 'good cause' under Rule 26(c) [, Ala. R. Civ. P.,] that the requested production would create ... an annoyance, embarrassment, oppression, or undue burden or expense or that the documents constitute confidential or proprietary information deserving of special protection."

IWS argues that it presented good cause for the protective order because, IWS argues, the discovery sought by Wilson and Taylor contains confidential information and trade secrets. Specifically, IWS argues that the bills of lading contain confidential client information and that the operations and safety manuals, "prepared or obtained at cost and tailored specifically for [the] benefit of IWS's business operation, certainly qualify as proprietary trade secrets."

Section 8-27-2(1), Ala. Code 1975, a part of the Alabama Trade Secrets Act, defines a "trade secret" as information that

"a. [i]s used or intended for use in a trade or business;
"b. [i]s included or embodied in a formula, pattern, compilation, computer software, drawing, device, method, technique, or process;
"c. [i]s not publicly known and is not generally known in the trade or business of the person asserting that it is a trade secret;
"d. [c]annot be readily ascertained or derived from publicly available information;
"e. [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy; and
"f. [h]as significant economic value."

IWS argues that the information in its bills of lading and operations and safety manuals satisfies the definition of trade secret in § 8-27-2(1).

Concerning the information in IWS's bills of lading, IWS explains that, if the information contained in the bills of lading is disseminated, IWS's competitors would be able to identify its clients, its billing information, its billing rates, what it was hauling for its clients, to where it was delivering, etc. IWS notes that this information is, in fact, the subject of confidentiality agreements between it and its clients, which prohibit IWS from disclosing this information. In its amicus brief, the Alabama Trucking Association, Inc. ("ATA"), states the following concerning information contained on a trucking company's bills of lading:

"If IWS's competitors are allowed to obtain unredacted bills of lading ..., they will be able to determine not only the identity of IWS's customers, but also the logistics it employs to transport its freight, the prices it and its customers charge, the rates of transportation, what type of freight is being hauled, how much freight is being hauled, the frequency of the shipments, how IWS plans its trips, etc."

ATA's amicus brief, at p. 7.

Concerning the information in IWS's operations and safety manuals, IWS states that it expended considerable time, effort, and money in developing its business model, which, it says, its operations and safety manuals are part of. IWS admits, as Wilson and Taylor argue, that the applicable standards of operations and safety within the trucking industry are readily ascertainable. IWS argues, however, that "the particular manner in which IWS incorporates that information into its business model is specifically unique to IWS." IWS's reply brief, at p. 6. In its amicus brief, ATA states that dissemination of the information contained in IWS's operations and safety manuals "will permit the public and IWS's competitors to exploit IWS's business strategies and will give its competitors an unfair advantage in the highly competitive Alabama trucking industry." ATA's amicus brief, at pp. 7-8.

In response, Wilson and Taylor argue that the information in IWS's bills of lading and operations and safety manuals is not a trade secret or confidential because, they appear to argue, the information is publicly known, can be readily ascertained from public information, and/or is not secreted from the public. Specifically, Wilson and Taylor argue that the information does not contain trade secrets because (1) IWS is required by federal law to report the information from these sources to the Federal Motor Carrier Safety Administration ("the FMCSA") and (2) IWS makes the information available to its employees. It appears that Wilson and Taylor are arguing that the requested discovery is not a trade secret based on § 8-27-2(1) c, d, and/or e; Wilson and Taylor do not make any argument concerning § 8-27-2(1) a, b, or f.

We will address Wilson and Taylor's arguments in turn. First, IWS readily admits that it must report some information contained in its bills of lading and operations and safety manuals to the FMCSA. However, IWS notes that the information it reports to the FMCSA is not made public. Wilson and Taylor have not directed this Court's attention to anything before us indicating that the FMCSA makes the information reported to it available to the public. Further, IWS is required by federal law to report the information to the FMCSA, and Wilson and Taylor have not directed this Court's attention to anything indicating that IWS may avoid such reporting. Accordingly, IWS is doing all it reasonably can under the circumstances to keep the information secreted from the public. IWS even entered into confidentiality agreements with its clients that prohibit the public disclosure of the information in its bills of lading. We do not find this argument convincing.

Within this argument, however, Wilson and Taylor specifically argue that the information in IWS's operations and safety manuals can be readily ascertained from public information. Wilson and Taylor assert that the information in IWS's operations and safety manuals is "used to teach commercial drivers how to operate a vehicle" and that the information "will reference codes and regulations which are uniform throughout the United States and common in the trucking industry." Wilson and Taylor's response, at p. 14. Wilson and Taylor note that "IWS has made no showing and offered no explanation how training manuals could be the subject of a trade secret or why it would be detrimental for the public to know how [IWS] trains its drivers." Id., at p. 15.

We find this particular argument concerning the information in IWS's operations and safety manuals convincing. IWS acknowledges that the information in its operations and safety manuals is, in part, based on regulations applicable to the entire trucking industry. IWS argues that the manner in which it incorporates those regulations constitutes a trade secret. However, other than this general assertion, IWS has not offered any explanation as to how the information in its operations and safety manuals, which, in part, is readily ascertained from publicly available information, constitutes a trade secret. We conclude that IWS has not met its heavy burden of demonstrating that the circuit court exceeded its discretion in concluding that the information in IWS's operations and safety manuals does not constitute "confidential ... commercial information" under Rule 26(c)(7).

Second, Wilson and Taylor argue that the information in both IWS's bills of lading and its operations and safety manuals is not a trade secret because IWS shares the information with its employees. Wilson and Taylor have not directed this Court's attention to any authority indicating that a company loses the benefit of the trade-secret privilege by sharing the privileged information with its employees. This argument is not convincing.

We conclude that IWS has demonstrated that the information in its bills of lading is confidential and satisfies the definition of a trade secret set forth in § 8-27-2(1). IWS has demonstrated good cause for a protective order pursuant to Rule 26(c)(7) concerning the information in IWS's bills of lading consisting of trade secrets and confidential information. However, IWS has not demonstrated that the information in IWS's operations and safety manuals is confidential or that it satisfies the definition of a trade secret set forth in § 8-27-2(1).

Wilson and Taylor also argue that every detail of the underlying litigation, including IWS's trade secrets and confidential information, should be made public. Wilson and Taylor argue that they "have every right to have the public made aware of IWS's actions in their dangerous and reckless operation of a commercial motor vehicle on the highways of Alabama." Wilson and Taylor's response, at p. 17. IWS is not requesting that all details of the trial be kept from the public, only its trade secrets and confidential information. IWS has not requested that the details of the accident be suppressed, and we see no reason that they be suppressed. However, IWS has demonstrated that it has a right to a protective order concerning the information in its bills of lading.

We also note that Wilson and Taylor make much of the fact that, because the circuit court struck Hahn's affidavit testimony, IWS presented no evidence in support of its argument that the information in IWS's bills of lading contains trade secrets. However, Wilson and Taylor have not directed this Court's attention to any relevant authority indicating that a party seeking a protective order pursuant to Rule 26(c)(7)must present evidence to support the assertion that the discovery sought contains a trade secret or confidential information. Wilson and Taylor do cite Ex parte Scott, 414 So.2d 939 (Ala. 1982), in making their argument; however, that case does not support their position.

In Ex parte Scott, a circuit court entered a protective order prohibiting the production of discovery. The party seeking the protective order did not present evidence in support of its motion for a protective order, only arguments. On mandamus review, this Court determined that the party seeking the protective order pursuant to Rule 26(c) failed to prove that it would suffer prejudice if it was required to produce the requested discovery. This Court did not hold that the circuit court erred in granting the protective order because the Rule 26(c) movant had failed to present evidence in support of its motion. Rather, this Court specifically stated:

"There are no assertions in the motions for a protective order that would amount to a showing of good cause. ... We do not think these assertions indicate annoyance, embarrassment or oppression or show undue burden or expense as required by Rule 26(c), A[la]. R. C[iv]. P. Hence, to grant a protective order on the grounds asserted by the defendants is an abuse of discretion."

Ex parte Scott, 414 So.2d at 941 (emphasis added). This Court considered that mere assertions could be sufficient to support a motion for a protective order but concluded that, under the facts of that case, the movant's assertions did not satisfy its burden of demonstrating good cause for a protective order. Ex parte Scott does not support Wilson and Taylor's argument.

A party moving for a protective order may try to support its motion with assertions alone. Certainly, a movant for a protective order may choose to present additional evidence concerning the confidential nature of the contested discovery; however, such evidentiary submissions are not required to demonstrate the good cause necessary to support a protective order. A circuit court may determine that a movant's assertions satisfy its burden. Of course, the movant's assertions may be probed at a hearing on the motion, as the circuit court did in the present case, and the contested discovery may even be produced for an in camera review by the circuit court to confirm the veracity of the assertions made by the movant. However, a movant's failure to present evidence in support of the motion for a protective order is not, in and of itself, a reason to deny such a motion. Wilson and Taylor's argument that IWS was required to present evidence proving that the requested discovery contained information that was a trade secret or confidential is not convincing.

Conclusion

IWS has demonstrated a clear legal right to a writ of mandamus directing the Bibb Circuit Court to vacate that portion of its order denying IWS's motion for a protective order regarding the information contained in IWS's bills of lading and to enter an order pursuant to Rule 26(c)(7) concerning that information, and as to that portion of the order its petitions are granted. The circuit court may use its discretion in crafting a protective order that provides adequate protection for the trade secrets contained in the discovery produced by IWS. However, IWS has not demonstrated a clear legal right to a writ of mandamus directing the circuit court to vacate that portion of its order denying IWS's motion for a protective order concerning the information contained in IWS's operations and safety manuals, and as to that portion of the circuit court's order, its petitions are denied.

1170013-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

1170087-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Main and Sellers, JJ., concur.

Stuart, C.J., concurs in the result.

Bolin, Wise, and Mendheim, JJ., concur in part and dissent in part.

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

WISE, Justice (concurring in part and dissenting in part).

As to that portion of the main opinion denying the petitions in part and holding that the information in the operations and safety manuals is discoverable, I concur.

As to that portion of the main opinion granting the petitions in part and holding that the information in the bills of lading warrants a protective order, I dissent, and, as to that issue, I join Justice Shaw's special writing.

MENDHEIM, Justice (concurring in part and dissenting in part).

I agree with the main opinion that the petitions for a writ of mandamus should be granted to direct the trial court to issue a protective order for the bills of lading of Industrial Warehouse Services, Inc. ("IWS"). I would, however, also direct the trial court to issue a protective order for IWS's operations and safety manuals as well. Accordingly, as to that portion of the opinion, I dissent.

IWS sought a protective order as to several operations and safety manuals authored by IWS or purchased from third-party vendors and provided to drivers of IWS's trucks. IWS asserted in its motion for a protective order that the materials in the operations and safety manuals "related to the services provided to or available to its drivers and other employees that are proprietary to IWS and contain confidential and/or trade secrets." See Rule 26(c), Ala. R. Civ. P. (providing that, for "good cause shown," the trial court may order "that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way" (emphasis added) ).

Wilson and Taylor are entitled to the requested information, and IWS makes no argument to the contrary. Further, IWS asserted to the trial court in its motion for a protective order that "[t]he Protective Order shall not restrict the use of documents at trial." Rather, the issue simply is whether the discovered information should be subject to a protective order that prohibits dissemination to nonparties.

The main opinion faults IWS for seeking a protective order because part of the information in the requested manuals "is readily ascertained from publicly available information." 262 So.3d at 1186. But the fact that an operations or safety manual might incorporate some publicly available information does not mean that the manner in which that information is presented for purposes of instructing drivers might not reflect "a trade secret or other confidential research, development, or commercial information" under Rule 26(c). Although I agree that a protective order should not be used to shield information that is publicly available, the trial court can protect IWS's interests by drafting a protective order that excludes protection for any publicly available information and that otherwise restricts the disclosure and use of the disputed discovery to and by the parties in this case. Also, if the trial court had further concerns with IWS's assertions, the court could conduct an in camera inspection to discern the extent to which protection was otherwise justified. Likewise, if upon receipt and review of the manuals, Wilson and Taylor find that IWS's assertions are incorrect, they could request the trial court to amend or to vacate the protective order.

The main opinion also faults IWS for making "general assertion[s]" and for not disclosing sufficient information as to how the requested manuals "constitute[ ] a trade secret." 262 So.3d at 1186. I note that the protection under Rule 26(c) is not limited to "trade secrets," and, as a general principle, I find the main opinion's approach troubling because its application might be read as requiring a litigant to disclose its confidential information to the discovering party in order to establish the need for a protective order to protect that confidential information. Again, it seems the simple solution, which protects the disclosing party but also allows for the full exercise of the opposing party's right to discovery, is for the trial court to conduct an in camera inspection or to allow the discovery to proceed with a protective order in place, which may be lifted, if necessary, after the opposing party reviews the discovery.

In my opinion, IWS established "good cause" for a protective order that prohibits disclosure to nonparties of both its bills of lading and its operations and safety manuals. Accordingly, I respectfully dissent from that portion of the main opinion denying a protective order for IWS's operations and safety manuals.

Bolin, J., concurs.

SHAW, Justice (concurring in the result in part and dissenting in part).

I believe that the petitioner, Industrial Warehouse Services, Inc. ("IWS"), failed to meet its burden of showing that the bills of lading sought to be discovered in this case constituted trade secrets or confidential information for purposes of warranting a protective order under Rule 26(c), Ala. R. Civ. P. Therefore, I respectfully dissent from the portion of the main opinion issuing the writ of mandamus. As to the portion of the main opinion denying the petitions in part, I concur in the result.

IWS had the "burden to show" that the bills of lading were protected as trade secrets or as confidential and that a protective order should thus be granted as to them. Ex parte Cuna Mut. Ins. Soc'y, 507 So.2d 1328, 1329 (Ala. 1987) ("[I]t is the movant's burden to show good cause why the protective order should be granted."). Cf. Ex parte Michelin North America, Inc., 161 So.3d 164, 170 (Ala. 2014) ("A party asserting the trade-secret privilege has the initial burden of showing that the information sought to be shielded from disclosure constitutes a trade secret the disclosure of which would result in injury."), and Ex parte Coosa Valley Health Care, Inc., 789 So.2d 208, 219 (Ala. 2000) ("[T]he burden of proving that a privilege exists and proving the prejudicial effect of disclosing the information is on the party asserting the privilege."). IWS's motion for a protective order, however, failed to include any "showing" that the bills of lading or information contained in them was secret or confidential. Instead, the motion simply contained a single assertion on the issue: "[T]he Plaintiffs have requested materials from IWS related to the services provided to or available to its drivers and other employees that are proprietary to IWS and contain confidential information and/or trade secrets." No explanation or argument as to "how" or "why" was given or made, the actual materials were not identified, no explanation of the actual contents of the bills of lading was actually provided to the trial court, and no evidence was submitted to substantiate its claim. Simply put, this single assertion by IWS in its motion was not sufficient to show the trial court the reason the bills of lading were due protection or that they were trade secrets as defined under Ala. Code 1975, § 8-27-2(1).

It is certainly true that there may be times when the content of material sought to be discovered reveals on its face that it is a trade secret or confidential; thus, no supporting evidence or detailed explanation would be required to show that such is the case. I see nothing, however, indicating that a bill of lading is such a material. Generally, a bill of lading is "[a] document acknowledging the receipt of goods by a carrier or by the shipper's agent and the contract for the transportation of those goods." Black's Law Dictionary 198 (10th ed. 2014). Nothing in the nature of such a document indicates that it inherently contains confidential information.

IWS asserts in its mandamus petitions that the bills of lading contained information such as client names, sellers, buyers, and rates. This assertion was not provided to the trial court; it thus cannot form a basis on which to issue a writ of mandamus because, "[i]n determining, on mandamus review, whether the trial court exceeded the limits of its discretion, 'the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling.' " Ex parte Ebbers, 871 So.2d 776, 786 (Ala. 2003) (quoting Ex parte Wiginton, 743 So.2d 1071, 1073 (Ala. 1999) ). Further, any assertions by the amici curiae tending to support IWS's arguments and assertions were also not presented to the trial court and also cannot be considered by this Court on mandamus review. Id. See also Courtaulds Fibers, Inc. v. Long, 779 So.2d 198, 202 n.1 (Ala. 2000) (holding that this Court will not decide a question presented by amicus curiae that was not presented by the parties); Morgan Cty. Comm'n v. Powell, 292 Ala. 300, 311, 293 So.2d 830, 840 (1974) ("An amicus curiae is limited to the issues made by the parties to a suit, and issues not made in proceedings below, nor raised in brief of appellant, cannot be injected into a review by any action on the part of the amicus curiae."). Additionally, there is nothing innate in information regarding pricing and customers that is necessarily confidential or secret; indeed, many businesses actually advertise this information. IWS might certainly keep this information confidential, but it did not "show" this to the trial court. Thus, I do not believe that IWS has demonstrated a clear legal right to the writ of mandamus.

Although I agree with the general principle that a protective order should be required to prevent a discovering party from disclosing trade secrets or confidential information to parties not involved in the litigation, IWS simply did not meet its burden of showing that the bills of lading at issue here were due to be protected. Therefore, I respectfully dissent from issuing the writ.

BRYAN, Justice (concurring in the result in part and dissenting in part).

I concur in the result in the main opinion insofar as it grants the petitions for a writ of mandamus filed by Industrial Warehouse Services, Inc. ("IWS"), and directs the trial court to issue a protective order for IWS's bills of lading. However, I dissent from that part of the main opinion declining to direct the trial court also to issue a protective order that prohibits disclosure of IWS's operations and safety manuals to nonparties. In that regard, I join Justice Mendheim's reasoning in his special writing as to why the trial court should be directed to issue a protective order as to IWS's operations and safety manuals.

      It appears that IWS sought to protect information found in numerous of its manuals and handbooks covering a variety of topics. However, the parties have not directed this Court's attention to anything in the materials before us indicating exactly which of IWS's manuals and handbooks contain information IWS seeks to protect. Nor have the parties specified the content of the manuals and handbooks at issue. Our general reference to "operations and safety manuals" references all manuals and handbooks at issue in the underlying proceeding.

      In the circuit court's order of September 25, 2017, denying IWS's motion for a protective order, the circuit court did allow IWS to "redact any incremental billing information contained on its bills of lading." However, IWS notes in its reply brief that " '[i]ncremental billing information' is not, to IWS's knowledge, a term of art and does not have any specifically identifiable meaning." IWS's reply brief, at p. 10. It is not clear what information on IWS's bills of lading may be redacted or if such redactions would adequately protect the allegedly confidential material or trade secrets.

      In fact, IWS acknowledged that "not every page of [the operations and safety manuals] may be unique in its contents."

      We note that, by using the conjunctive "and" to separate its subsections, § 8-27-2(1) requires that, in order to be considered a trade secret, the information at issue must satisfy all of the subsections-a through f. See Bell Aerospace Servs., Inc. v. U.S. Aero Servs., Inc., 690 F.Supp.2d 1267, 1273 (M.D. Ala. 2010) ("[The party asserting the trade-secret privilege] has the burden of establishing each element [of § 8-27-2(1), Ala. Code 1975,] for the information in question to be considered a trade secret. Public Systems, Inc. v. Towry, 587 So.2d 969, 971 (Ala. 1991)."). Therefore, if Wilson and Taylor succeed in demonstrating that the information they seek in the present case does not satisfy any one of the subsections in § 8-27-2(1), then the information does not meet the definition of a trade secret.

      IWS argues that the circuit court erred in striking Hahn's affidavit. However, we will not address this issue because IWS has not demonstrated that the circuit court's striking of Hahn's affidavit is a discovery order that may be reviewed by a petition for a writ of mandamus. See Ex parte Bosch, supra.

      We note that IWS also appears to argue that the circuit court exceeded its discretion by requiring IWS to "produce documents as far back as six months prior to the date of the accident." IWS's petitions, at p. 24. However, IWS has not demonstrated that this scope-of-discovery issue is appropriate for mandamus review, and, thus, we do not address it. See Ex parte Bosch, supra.

      See Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala. 2000) (noting that statements in motions and arguments of counsel are not "evidence").

      After the trial court denied the motion for a protective order, IWS filed a motion to reconsider that included an affidavit providing testimony stating that the bills of lading contained trade secrets or confidential information. That affidavit was stricken. Nothing in the petitions convinces me that the trial court erred in striking that belated filing or that the arguments in the motion to reconsider are properly before us. That said, I disagree with any implication in the main opinion, 262 So.3d at 1187 n.5, that a motion to strike cannot be reviewed as part of a ruling on a discovery order that is otherwise capable of mandamus review under Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810 (Ala. 2003).

      IWS also asserts that it has certain confidentiality agreements with other parties that require it to protect the information in the bills; however, no assertion regarding the existence of confidentiality agreements is found in the motion for a protective order or in its supporting brief filed in the trial court. Further, that assertion is not substantiated by evidence.


author: THOMPSON, Presiding Judge.

text:
    Randolph G. WILSON, Jr. v. Teresa L. WILSON
    2150259
    Court of Civil Appeals of Alabama.
    October 21, 2016
    Terrie Scott Morgan of Capell & Howard, P.C., Montgomery, for appellant.
    John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   THOMPSON, Presiding Judge.

The Montgomery Circuit Court ("the trial court") entered a judgment on April 1, 2004, that divorced Randolph G. Wilson, Jr. ("the husband"), and Teresa L. Wilson ("the wife"). Among other things, the 2004 divorce judgment awarded the wife a portion of the husband's retirement benefits, awarded the wife $1,250 per month in periodic alimony, and ordered the husband to maintain a life-insurance policy naming the wife as beneficiary for as long as his periodic-alimony obligation continued. The husband appealed from the divorce judgment, challenging that part of the property division that awarded the wife a portion of his retirement benefits, and this court reversed the judgment and remanded the case for a redetermination of the property division and alimony award. Wilson v. Wilson, 941 So.2d 967, 970 (Ala. Civ. App. 2005). The record does not contain the divorce judgment entered upon remand after this court's release of Wilson v. Wilson, supra, but the record indicates that the wife was awarded periodic alimony.

In 2001, the wife filed a contempt action with regard to matters not pertinent to this appeal, and the trial court entered a judgment in that action in September 2004.

On August 20, 2013, the husband filed an action in which he sought to modify his periodic-alimony obligation; hereinafter, we refer to that action as "the .02 modification action." In his complaint filed in the .02 modification action, the husband alleged that he planned to retire approximately 10 days after the date that action was initiated and that, as a result of his expected retirement, he would suffer a decrease in his income. The husband further alleged that the wife was employed and was capable of supporting herself without receiving periodic alimony.

During the course of the litigation in the .02 modification action, the wife filed a motion to have the husband held in contempt and for an award of sanctions for the husband's alleged abuses of discovery practices during the course of the .02 modification action. On March 5, 2014, the trial court entered a judgment in the .02 modification action in which it granted the wife's motion to have the husband held in contempt, awarded the wife an attorney fee and costs as sanctions, and dismissed the husband's complaint because of the husband's failure to comply with court orders and the Alabama Rules of Civil Procedure. No appeal was taken from the March 5, 2014, judgment in the .02 modification action.

One year later, on March 6, 2015, the husband filed in the trial court a petition to modify his alimony obligation; that filing initiated the action that is currently before this court. In his petition to modify in this action, the husband alleged that he had suffered a material change in his income because of his retirement from the military and that the wife was capable of supporting herself. In that petition, the husband alleged that there had been a material change in circumstances since the entry of the April 1, 2004, divorce judgment that warranted a change in his periodic-alimony obligation. The husband's March 6, 2015, petition to modify contained no reference to the March 5, 2014, judgment in the .02 modification action. The wife answered and opposed the husband's claim for a modification.

The trial court conducted an ore tenus hearing. At that hearing, the wife argued that the husband was limited in his presentation of evidence to events occurring since the entry of the most recent, March 5, 2014, judgment in the .02 modification action. The husband maintained that he could present evidence relating back to the date of the April 1, 2004, divorce judgment. The trial court agreed with the wife's argument and stated that it would consider evidence only as it related to a change in circumstances since the entry of the March 5, 2014, judgment.

On November 4, 2015, the trial court entered a judgment in this action in which it determined that the husband had failed to meet his burden for obtaining a modification of his alimony obligation, and it "dismissed" the husband's modification petition. In its November 4, 2015, judgment, the trial court also awarded the wife $5,000 as compensation for her attorney fees and costs. The husband filed a timely notice of appeal to this court.

The husband first argues that the trial court erred in limiting his presentation of the evidence to the period after the entry of the most recent, March 5, 2014, judgment. Initially, we note that, in her answer to the husband's March 6, 2015, petition to modify, the wife asserted several affirmative defenses, including the doctrine of res judicata. See Rule 8(c), Ala. R. Civ. P. Other than in the wife's answer, the doctrine of res judicata is not mentioned elsewhere in the record, and the wife did not argue that theory before the trial court during the ore tenus hearing. A party asserting an affirmative defense "'bears the burden of proving the essential elements of his affirmative defenses.'" Ex parte Ramsay, 829 So.2d 146, 152 (Ala. 2002) (quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala. 2000) ). Rather, during the ore tenus hearing, the parties argued only the issue whether the trial court should consider the evidence pertaining to the husband's claim seeking a modification of periodic alimony dating back to when the April 1, 2004, divorce judgment was entered or to when the March 5, 2014, judgment on the husband's last modification action was entered. "[Our supreme court has] said that a case will not be reviewed ... on a theory different from that on which the trial was had."

Sealy v. McElroy, 288 Ala. 93, 98, 257 So.2d 340, 344 (1972). See also Lewis v. Oakley, 847 So.2d 307, 311 (Ala. 2002) ("'It is well established that this Court will not consider a case on a theory different from that on which it was tried below.' Kmart Corp. v. Bassett, 769 So.2d 282, 284 n.2 (Ala. 2000)."). Accordingly, we have addressed the issues on appeal as they were presented to the trial court by the parties and as they were considered and decided by the trial court.

The husband maintains that the trial court should have considered evidence pertaining to the entire period after the entry of the April 1, 2004, divorce judgment. The wife argues in support of the trial court's judgment that the most recent, March 5, 2014, judgment in the husband's earlier action to modify his periodic-alimony obligation constituted an adjudication on the merits of that claim. She cites Rule 41(b), Ala. R. Civ. P., which provides, in pertinent part:

"(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, [Ala. R. Civ. P.,] operates as an adjudication upon the merits."

As indicated, the trial court entered the March 5, 2014, judgment dismissing the .02 modification action after it determined that the husband had failed to comply with discovery requests and court orders. The parties do not dispute that the March 5, 2014, judgment in the .02 modification action constituted a dismissal pursuant to Rule 41(b). Thus, that March 5, 2014, judgment constituted "an adjudication upon the merits" of the husband's claims in the .02 modification action. Rule 41(b) ; see also Clothier v. Counseling, Inc., 875 So.2d 1198, 1200 (Ala. Civ. App. 2003) ("The trial court's dismissal of Clothier's first complaint was a final judgment that operated as an adjudication on the merits."); Washington Mut. Bank, F.A. v. Campbell, 24 So.3d 435, 441 (Ala. 2009) ("The very purpose of Rule 41(b) is to remove doubt about a court's intention when it dismisses an action.").

The husband contends that an award of periodic alimony may be modified upon a material change of circumstances that has occurred since "the last award" of periodic alimony, rather than since the most recent judgment on a claim pertaining to periodic alimony. In other words, the husband contends that the relevant period for which he needed to establish a material change in circumstances, warranting a modification of his periodic-alimony obligation, dates back to April 1, 2004, the date of the original divorce judgment that awarded alimony, and not to March 5, 2014, the date of the judgment that dismissed his claim seeking to modify his periodic-alimony obligation in the .02 modification action.

In Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ. App. 1995), this court stated that "[t]he trial court may modify an award of periodic alimony if the petitioner proves that a material change of circumstances has occurred since the last award was made." Multiple cases have either cited, or more frequently quoted, Kiefer for that same proposition. See, e.g., Miller v. Miller, 47 So.3d 262, 263 (Ala. Civ. App. 2009) ;

Stanford v. Stanford, 34 So.3d 677, 681 (Ala. Civ. App. 2009) ; Beatty v. Beatty, 991 So.2d 761, 767 (Ala. Civ. App. 2008) ; Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala. Civ. App. 2006) ; Sexton v. Sexton, 935 So.2d 454, 461 (Ala. Civ. App. 2006) ; and R.J.W. v. C.L.W., 872 So.2d 876, 877 (Ala. Civ. App. 2003). We note that in all of those cases, the most recent judgments had awarded periodic alimony; in other words, there were no intervening judgments denying a requested modification of the periodic-alimony obligation.

The husband concedes that Alabama caselaw exists limiting the consideration of changed circumstances for the purposes of a modification of periodic alimony to the period since the most recent judgment entered in an action involving a claim seeking the modification of that periodic-alimony obligation. Our courts have held that "'[t]he burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order.'" Aramini v. Aramini, 220 So.3d 322, 329 (Ala. Civ. App. 2016) (quoting Taylor v. Taylor, 640 So.2d 971, 973 (Ala. Civ. App. 1994), which in turn cited Glenn v. Glenn, 626 So.2d 638 (Ala. Civ. App. 1993) ). But see Blood v. Blood, 223 So.3d 231, 238 (Ala. Civ. App. 2016) (quoting Kiefer in addressing an argument that the trial court erred in denying the former husband's request to modify his periodic-alimony obligation imposed by the most recent judgment). Other Alabama caselaw provides that, in determining whether to modify a periodic-alimony obligation, the court is to consider whether there has been a material change in circumstances since the last order or judgment entered. See Newsome v. Newsome, 984 So.2d 463, 465-66 (Ala. Civ. App. 2007) ("At trial, the party seeking to modify a trial court's judgment regarding alimony must make a showing that, since the trial court's previous judgment, there has been a 'material change in the circumstances of the parties.' " (quoting Posey v. Posey, 634 So.2d 571, 572 (Ala. Civ. App. 1994) )); Taylor v. Taylor, 640 So.2d at 973 ("The burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order."); Glover v. Glover, 730 So.2d 218, 220 (Ala. Civ. App. 1998) (citing Taylor v. Taylor, supra) ; Santiago v. Santiago, 122 So.3d 1270, 1278 (Ala. Civ. App. 2013) (quoting Glover v. Glover, supra ); Henning v. Henning, 26 So.3d 450, 455-56 (Ala. Civ. App. 2009) (quoting Taylor v. Taylor, supra) ; Simmons v. Simmons, 600 So.2d 305, 305 (Ala. Civ. App. 1992) ("A child support award may be modified only on proof of a material change of circumstances since the last decree."); and Roan v. Roan, 504 So.2d 1220, 1220 (Ala. Civ. App. 1987).

Thus, the resolution of the legal issue raised by the husband on appeal turns on whether a claim seeking a modification of periodic alimony may be based on evidence dating back to the date of the last "award," i.e., a judgment that awarded periodic alimony or modified a periodic-alimony award, or to the date of the most recent judgment on a claim seeking a modification of periodic alimony, even if the claim was denied. It is not clear to this court whether there is a split in authority, as the different caselaw would tend to suggest, or whether inexact language has been employed in some cases. As already stated, in many of the cases relied upon by the husband, the most recent "award" was also the most recent judgment. In some other cases, the court does not appear to have considered the period referenced in the opinion. See, e.g., Webb v. Webb, 780 So.2d 698 (Ala. Civ. App. 2000) (although stating that a court determining whether to modify alimony may consider circumstances since the entry of the most recent judgment, the trial court and this court considered evidence back to the date of the original alimony award); and Patterson v. Patterson, 796 So.2d 359 (Ala. Civ. App. 2000) (discussed in note 5, infra).

The phrase "since the most recent judgment" is not precise, either, as is demonstrated in McInnish v. McInnish, 441 So.2d 960 (Ala. Civ. App. 1983). In that case, the parties' 1978 divorce judgment awarded the wife custody of the parties' three children, periodic alimony, and child support. A 1982 modification judgment, based on the parties' agreement, modified custody of one child and adjusted child support accordingly. The husband then sought to modify his periodic-alimony obligation and child support, and in a 1983 judgment the trial court denied those claims. This court held that, as to the modification of child support, the trial court had properly considered evidence of changed circumstances occurring after the entry of the 1982 modification judgment but that, as to the modification of alimony, the trial court had properly considered evidence of changed circumstances occurring after the entry of the 1978 divorce judgment. McInnish v. McInnish, 441 So.2d at 962. In reaching its holding with regard to the issue of modifying periodic alimony, the court stated that the 1978 divorce judgment was the last judgment that had "awarded" alimony. Id. In doing so, the court in McInnish v. McInnish, supra, cited Rowe v. Boley, 392 So.2d 838 (Ala. Civ. App. 1980), a case involving the modification of child support; the husband advances the theory upon which Rowe v. Boley was decided in support of his arguments.

In Rowe v. Boley, supra, the parties divorced in 1970, and, in 1978, the trial court denied the mother's modification claim seeking an increase in child support. The mother filed another claim seeking to modify child support in April 1979, and, in November 1979, the trial court denied that modification claim after limiting its consideration of the evidence to the period since the entry of the last judgment considering child support, i.e., the 1978 judgment that had denied the mother's first child-support-modification claim. 392 So.2d at 839. This court reversed, concluding that the child-support-modification claim should be decided based on a consideration of the facts since the most recent award of child support. Rowe v. Boley, 392 So.2d at 840. On certiorari review, our supreme court agreed with this court's holding, explaining:

"Alabama courts have traditionally viewed with disfavor repetitive, harassing litigation over child support and custody. Greene v. Greene, 249 Ala. 155, 30 So.2d 444 (1947) ; Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580 (1927). A former decree is conclusive of the interests of the child and the rights of the parents, so long as the status at the time of the decree remains without material change. Messick v. Messick, 261 Ala. 142, 73 So.2d 547 (1954).
"However, the standard for setting child support is the needs of the child as compared with the ability of the parent to respond to that need.
Thompson v. Thompson, 337 So.2d 1 (Ala. Civ. App. 1976) ; Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974). Unfortunately, these two factors rarely coincide. Therefore,
"'[i]f the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court.'
" Pruett v. Pruett, 333 So.2d 580, 582 (Ala. Civ. App. 1976).
"In the case before us, the problem described above is not a factor. The father is able to pay the extra child support needed by his children. Instead, the father seeks to avoid paying additional child support by resorting to a rather strict interpretation of our previous decisions. In cases involving child support, the Court is not bound by any strict rules of pleading or procedure, Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212 (1948), and the paramount consideration is the welfare of the children. Meadows v. Hulsey, 246 Ala. 261, 20 So.2d 526 (1945). While the party seeking to modify child support payments must show that there has been a material change in circumstances since the last decree awarding child support, Frazier v. Frazier, 342 So.2d 1320 (Ala. Civ. App. 1977) ; Lee v. Lee, 337 So.2d 372 (Ala. Civ. App. 1976) ; Womble v.Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), a petition to modify untimely filed in the interim should not, as a matter of law, foreclose a trial judge from considering all factors and changes occurring since the amount of child support was last fixed. To hold otherwise would deprive the children of divorced fathers, in some instances, of additional child support that the father is able to pay and of which the children have need. We therefore affirm the judgment of the Court of Civil Appeals."

Ex parte Boley, 392 So.2d 840, 841-42 (Ala. 1981) (emphasis added).

We note that Rowe v. Boley, supra, and Ex parte Boley, supra, were decided before the October 1, 1987, effective date of the Rule 32, Ala. R. Jud. Admin., child-support guidelines, the application of which is mandatory. Nelson v. Landis, 709 So.2d 1299, 1300 (Ala. Civ. App. 1998) ("[T]he application of the Rule 32 child support guidelines is mandatory."). The Rule 32 child-support guidelines set forth specific circumstances under which modifications of child support are appropriate, and the rule refers to a material change in circumstances since "the last order of child support." See Rule 32(A)(3)(b), Ala. R. Jud. Admin.

The husband in this case contends that the same policy principles upon which this court in Rowe v. Boley, supra, and our supreme court in Ex parte Boley, supra, based their decisions pertaining to the modification of child support should also apply to actions involving the modification of alimony. However, the husband has not directed this court to supporting authority for the theory that principles equating to the best interests of children, or their right to parental support, which were at issue in Ex parte Boley, supra, also apply in the context of paying periodic alimony to a former spouse. Periodic alimony is considered in conjunction with the overall property division in a divorce action, and its purpose is to preserve the standard of living of the spouse receiving support, to the extent possible, at a level similar to that enjoyed by the parties during their marriage. Pate v. Pate, 849 So.2d 972, 976 (Ala. Civ. App. 2002) ("The issues of property division and alimony are interrelated, and they must be considered together."); and Rieger v. Rieger, 147 So.3d 421 (Ala. Civ. App. 2013) (discussing initial awards of periodic alimony and their interrelation with a the division of marital property). "Factors the trial court should consider in determining whether to modify an alimony award include, among other things, the earning capacity of each spouse, the payee spouse's need for alimony, the payor spouse's ability to pay alimony, and each spouse's estate." Santiago v. Santiago, 122 So.3d 1270, 1278-79 (Ala. Civ. App. 2013). However, even if a party shows a material change of circumstances with regard to a periodic-alimony obligation, a trial court is not required to modify that alimony obligation. Id. Thus, the considerations underlying the provision of support for a former spouse and the provision of support for a child are not equivalent.

We conclude that the policy issues upon which Ex parte Boley, supra, was decided are issues pertaining exclusively to children (for example, in determining child support, the best interests of the child are of paramount concern) and that that case clearly considered a father's obligation to provide for and support his children. Those considerations are not at play in the context of an award of periodic alimony to a former spouse. Accordingly, the theory upon which Ex parte Boley, supra, was decided in connection with a modification of child support is not necessarily applicable to the consideration of a modification of a periodic-alimony obligation. Thus, we reject the husband's argument that this court should apply the reasoning in Ex parte Boley, supra, to hold that a modification of a periodic-alimony obligation may be made only in reference to the last judgment in which periodic alimony was awarded.

Rather, we conclude that the better-reasoned approach is the one described in Taylor v. Taylor, 640 So.2d at 973, and similar cases, which specify that, in an action involving the modification of a periodic-alimony obligation, "[t]he burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order" that addresses the issue of periodic alimony or a claim seeking a modification of a periodic-alimony obligation.

In this case, the husband asserted a claim seeking a modification of his alimony obligation in the .02 modification action.

The March 5, 2014, judgment in the .02 modification action dismissed the husband's alimony-modification claim, and, as already explained, supra, that judgment constituted an adjudication on the merits under Rule 41(b), Ala. R. Civ. P. Therefore, the March 5, 2014, judgment in the .02 modification action was the last or most recent judgment on the issue of periodic alimony. Accordingly, we conclude that the trial court properly limited the husband's presentation of the evidence to the period after the entry of the March 5, 2014, judgment.

"The burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order. Glenn v. Glenn, 626 So.2d 638 (Ala. Civ. App. 1993). In determining whether there has been a material change in circumstances, the trial court must consider the financial needs of the payee spouse and the financial ability of the payor spouse to respond to those needs. McCalla [v. McCalla, 497 So.2d 509 (Ala. Civ. App. 1986) ]. It is the payor spouse's ability to earn and pay the support rather than his actual income that is determinative. Wall v. Wall, 611 So.2d 1107 (Ala. Civ. App. 1992)."

Taylor v. Taylor, 640 So.2d at 973.

The husband also argues on appeal that the evidence did not support the trial court's November 4, 2015, judgment. However, in its November 4, 2015, judgment denying the husband's petition to modify his periodic-alimony obligation, the trial court made no findings of fact. Our supreme court has held that, "in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review." New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004). Accordingly, because the trial court made no findings of fact and the husband did not file a postjudgment motion challenging the sufficiency of the evidence, the husband's arguments on appeal challenging the sufficiency of the evidence supporting the trial court's judgment are not preserved for appellate review, and we cannot reach those arguments. Cooper v. Cooper, 160 So.3d 1232, 1240 (Ala. Civ. App. 2014) ; L.M. v. Jefferson Cty. Dep't of Human Res., 68 So.3d 859, 860-61 (Ala. Civ. App. 2011).

The wife's motion for an attorney fee on appeal is granted in the amount of $4,000.

The husband's motion to strike portions of the wife's appellate brief is denied as moot.

AFFIRMED.

Pittman and Donaldson, JJ., concur.

Moore, J., concurs in the rationale in part and concurs in the result, with writing, which Thomas, J., joins.

MOORE, Judge, concurring in the rationale in part and concurring in the result.

On August 20, 2013, Randolph G. Wilson, Jr. ("the former husband"), filed a complaint seeking a modification of his periodic-alimony obligation ("the first modification action"). In his complaint, the former husband alleged that his periodic-alimony obligation should be modified because of his pending retirement from the military and the current employment of Teresa L. Wilson ("the former wife"). The Montgomery Circuit Court ("the trial court") dismissed the first modification action pursuant to Rule 41(b), Ala. R. Civ. P., thereby adjudicating the first modification action adversely to the former husband. Therefore, the doctrine of res judicata prevented the former husband from relitigating the issue whether his military retirement and the former wife's employment constituted material changes of circumstances warranting modification of his periodic-alimony obligation. See Ex parte McCracken, 576 So.2d 664 (Ala. 1991).

On March 6, 2015, the former husband filed another modification action ("the second modification action"), again alleging that his periodic-alimony obligation should be reduced because of his retirement from the military and the current employment of the former wife. The former wife filed an answer, asserting the doctrine of res judicata as an affirmative defense. The main opinion asserts that the former wife did not follow through with her res judicata defense, but, at the outset of the trial on the second modification action, the former wife argued that the former husband was prevented by the doctrine of res judicata from raising any claim that had already been adjudicated in the first modification action and that he should be allowed to present only a claim for a modification based on a material change of circumstances occurring after the adjudication of the first modification action. The trial court ruled in favor of the former wife and limited the evidence accordingly.

In Kennedy v. Kennedy, 656 So.2d 1213 (Ala. Civ. App. 1995), this court held:

"Our supreme court has applied the doctrine of res judicata to prohibit a subsequent petition to modify periodic alimony on the same ground raised in a previous petition. See, Ex parte McCracken, 576 So.2d 664 (Ala. 1991). The four elements of res judicata are (1) identical parties, (2) identical causes of action, (3) proper jurisdiction, and (4) a judgment on the merits. Higgins v. Henderson, 551 So.2d 1050, 1052 (Ala. 1989). If the four elements are satisfied, then an issue decided in a prior proceeding cannot be the subject of subsequent litigation. Wood v. Tricon Metals & Services, Inc., 548 So.2d 138, 140 (Ala. 1989).
"In 1990 and 1993, the husband filed petitions to modify the periodic alimony award; he filed those petitions in the court that had rendered the 1989 divorce judgment. He alleged in each petition that the wife's employment as a clerk typist was a material change in circumstances. The trial court, after hearing ore tenus testimony, denied the 1990 petition. Therefore, res judicata bars further litigation on the issue of whether the wife's employment is a material change in circumstances justifying the termination of her periodic alimony."

656 So.2d at 1214-15. Based on Kennedy, the trial court correctly ruled that the former husband could not relitigate the claim adjudicated in the first modification action and that he could rely only on evidence of a material change of circumstances occurring since the entry of the final judgment in the first modification action.

Based on the similarities between this case and Kennedy, I believe this court should dispose of the former husband's argument that he should have been allowed to present evidence dating back to the original periodic-alimony award using the same legal principles set out in Kennedy. Thus, I believe it is sufficient to hold that the former husband was barred by the doctrine of res judicata from presenting any claim that had already been adjudicated in the first modification action. Accordingly, I do not join in any aspect of the main opinion that applies any other reasoning to reach the same conclusion.

I concur with the main opinion in all other respects.

Thomas, J., concurs.

      In his motion to strike filed in this court, the husband erroneously argues that his complaint in the .02 modification action is not contained in the record on appeal. That pleading is contained in one of several supplemental records filed in this court in this matter.

      This court is not certain if a judgment was entered since the remand following Wilson v. Wilson, supra, and, if so, the date of that judgment. Accordingly, for the purposes of this appeal, we refer to the initial judgment establishing the periodic-alimony obligation as "the April 1, 2004, divorce judgment."

      The husband concedes in his brief submitted to this court that the March 5, 2014, judgment of dismissal was entered pursuant to Rule 41(b).

      See, e.g., Kiefer v. Kiefer, supra ; Miller v. Miller, supra ; Stanford v. Stanford, supra ; Beatty v. Beatty, supra ; Schiesz v. Schiesz, supra ; Sexton v. Sexton, supra ; and R.J.W. v. C.L.W., supra.

      Since the enactment of the Rule 32 child-support guidelines, Ex parte Boley, supra, has been cited in only one opinion, Patterson v. Patterson, 796 So.2d 359 (Ala. Civ. App. 2000), that involved a modification of child support, and that opinion did not reference the Rule 32 guidelines. In that case, in a 1996 action seeking to modify the parties' 1995 divorce judgment, the trial court had denied the husband's claim seeking, among other things, a reduction in his periodic-alimony and child-support obligations. 796 So.2d at 360. In its 1999 judgment in a later modification action, the trial court, among other things, denied the husband's claim seeking a reduction in his periodic-alimony obligation but reducing his child-support obligation. In analyzing the child-support issue in the appeal of the 1999 judgment, the court in Patterson cited Ex parte Boley, supra, for the proposition that the issue of the modification of child support should relate back to the 1995 divorce judgment, and the court determined that there had been no material change of circumstances warranting a modification of child support. 796 So.2d at 362-63. With regard to the issue of the modification of periodic alimony, the court in Patterson cited Taylor v. Taylor, supra, which referenced a change in circumstances since the trial court's last order or judgment. 796 So.2d at 361-62. The opinion in Patterson sets forth no specific analysis on that issue, but it appears to refer back to the circumstances as they existed at the time of the parties' divorce in 1995. 796 So.2d at 363.