author: PARKER, Justice.

text:
    EX PARTE CONTINENTAL MOTORS, INC.
    (In re Gilbert Goldstein et al. v. Continental Motors, Inc., et al.)
    Ex parte RAM Aircraft, LP
    (In re Gilbert Goldstein et al. v. Continental Motors, Inc., et al.)
    1170165 1170281
    Supreme Court of Alabama.
    June 29, 2018 As modified on denial of rehearing August 24, 2018
    Norman E. Waldrop, Jr., Sherri Rich Ginger, Mark B. Roberts, Lacey D. Smith, and J. Harris Oppenheimer of Armbrecht Jackson, LLP, Mobile, for petitioner Continental Motors, Inc.
    Lorrie L. Hargrove of Maynard, Cooper & Gale, P.C., Birmingham; and J. Marshall Gardner and H. Finn Cox, Jr., of Maynard, Cooper & Gale, P.C., Mobile, for petitioner RAM Aircraft, LP.
    Michael A. Worel, Alan W. Mortensen, and Edward B. Havas of Dewsnump, King, Olsen, Worel, Havas, Mortensen, Salt Lake City, Utah; and R. Tucker Yance of Yance Law Firm, LLC, Mobile, for respondents; and H. Clay Roberts of Roberts & Durkee, P.A., Coral Gables, Florida, for respondent David J. Fernandez-Fidalgo a/k/a David Goldstein.
   PARKER, Justice.

Numerous plaintiffs, identified below, filed a wrongful-death action under § 6-5-410, Ala. Code 1975, against Continental Motors, Inc. ("CMI"), and RAM Aircraft, LP ("RAM"), among others, in the Mobile Circuit Court ("the circuit court") on behalf of the heirs of Mark Goldstein, Marjorie Gonzalez, and Luis Angel Lopez Barillas (hereinafter collectively referred to as "the decedents"). CMI and RAM filed motions for a summary judgment arguing that none of the plaintiffs was a personal representative of the decedents and, thus, that the plaintiffs lacked the authority to pursue the wrongful-death claims. The circuit court denied CMI's and RAM's summary-judgment motions. CMI and RAM separately petition this Court for a writ of mandamus directing the circuit court to set aside its orders denying their summary-judgment motions and to enter an order granting their summary-judgment motions, thereby dismissing the plaintiffs' wrongful-death action for lack of subject-matter jurisdiction. We grant CMI's and RAM's petitions in part and deny them in part.

Facts and Procedural History

On March 10, 2010, the decedents died in an airplane crash in Tegucigalpa, Honduras.

The crash was allegedly a result of a defective starter-adapter assembly that had been manufactured by CMI and/or the failure of the airplane's engine, which had been refurbished by RAM. Mark and Marjorie were citizens and residents of Honduras; Luis was a citizen and resident of Guatemala. The administration of each of the decedents' estates was conducted in their respective countries of citizenship and residence.

On June 23, 2010, Belinda Milagro Valladares Andino was appointed as the "administrator of the intestate will or testament" of Luis in Guatemala. On September 2, 2010, Adam Goldstein, Andrew Goldstein, and Karen Rosenthal were recognized by a Honduran court as the "intestate heirs of all goods, rights and shares left at [Mark's] death." There is no Honduran court order before this Court indicating that any individual was appointed as an administrator or personal representative of Marjorie's estate.

On March 8, 2011, the following plaintiffs filed in the circuit court the underlying wrongful-death action against CMI and RAM, among others:

"Gilbert Goldstein, Alice Goldstein, individually, and as Personal Representatives of the Estate of Mark Goldstein, deceased; Adam Goldstein; Andrew Goldstein; David Goldstein; Jose Rolando Gonzalez, individually and as Personal Representative of the Estate of Marjorie Alexandra Gonzalez, and as guardian and next friend of Alanis Montserrath Gonzalez, a minor; Belinda Milagro Valladares Andino, individually, as the natural mother and next friend of Francisco Valladares, a minor, and as Personal Representative of the Estate of Luis Angel Lopez Barillas, deceased...."

The plaintiffs' complaint stated that, because the "subject crash and injuries occurred in Honduras[,] ... the case will be governed by the substantive law of Honduras." Apparently, Honduran law allows a decedent's next-of-kin to pursue a wrongful-death action; Alabama law authorizes only a "personal representative" to pursue a wrongful-death action. See § 6-5-410.

On October 31, 2011, Adam Goldstein and Rosenthal were appointed by a Florida court as personal representatives of Mark's estate. The Florida court's order appointing Adam Goldstein and Rosenthal as personal representatives states, in pertinent part:

"Whereas, Mark F. Goldstein ... died on March 10, 2010, owning assets in the State of Florida, and
"....
"Whereas ... Adam Joseph Goldstein and Karen Rosenthal have been appointed personal representatives of the Florida estate of the decedent and [have] performed all acts prerequisite to issuance of Letters of Administration in the estate,
"Now, therefore, I, the undersigned circuit court judge, declare Adam Joseph Goldstein and Karen Rosenthal duly qualified under the laws of the State of Florida to act as ancillary personal representatives of the estate of Mark F. Goldstein, deceased, with full power to administer the estate according to law; to ask, demand, sue for, recover and receive the property of the decedent; to pay the debts of the decedent as far as the assets of the estate will permit and the law directs; and to make distribution of the estate according to law."

On February 29, 2012, representatives of the decedents filed in the Mobile Probate Court ("the probate court") petitions for the appointment of an administrator ad litem for each of the decedents' estates pursuant to § 43-2-250, Ala. Code 1975. The petitions stated that, "under Honduran law, the estate proceedings for the decedent[s] could be closed prior to the resolution of the pending [wrongful-death] action which would leave the estate ... without an administrator to continue the pending [wrongful-death] action on behalf of the decedent[s]." Each petition was assigned a different case number in the probate court. On March 2, 2012, the probate court entered identical orders in each of the three cases appointing Leslie T. Fields as the administrator ad litem of each of the decedents' estates "with the ... limited powers, duties, and responsibilities ... to pursue the claims of [the decedents], or [their] estate[s], as set forth in [the wrongful-death action] before the Circuit Court of Mobile County, Alabama."

On March 7, 2012, the plaintiffs filed an amended complaint adding the following parties as plaintiffs: "Adam Goldstein, individually, and as Co-Personal Representative of the Estate of Mark Goldstein, deceased"; Alice Goldstein; "Karen Rosenthal, as Co-Personal Representative of the Estate of Mark Goldstein, deceased"; and "Leslie T. Fields as Co-Personal Representative" of the estates of the decedents.

During the pendency of this action, the Alabama Constitution was amended by the adoption of Amendment No. 884, now § 13.50, Ala. Const. 1901, effective December 1, 2014. In its answer to one of the plaintiffs' numerous amended complaints, CMI asserted as an affirmative defense that § 13.50 "barred in whole or in part" the plaintiffs' claims. Section 13.50 states, in pertinent part:

"(b) The law of Alabama provides:
"....
"(5) Different from the law of the State of Alabama is foreign law, which is any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.
"....
"(c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States."

On June 10, 2015, the plaintiffs filed a motion stating that § 13.50 applied to the case and that Alabama law, rather than Honduran law, should be applied to the plaintiffs' wrongful-death action.

On July 29, 2016, the circuit court entered an order stating that § 13.50 "requires the application of the substantive law of the State of Alabama in this wrongful death action. Therefore, it is hereby ordered, adjudged and decreed that this case is governed by the substantive law of the State of Alabama."

On August 31, 2017, CMI filed a motion for a summary judgment. CMI argued that none of the plaintiffs had been appointed as personal representative of any of the decedents' estates for purposes of Alabama's wrongful-death statute and, thus, none had the authority under § 6-5-410 to file a wrongful-death action. Accordingly, CMI argued that the plaintiffs' complaint was a nullity. CMI also argued that the probate court did not have the authority to appoint Fields as the administrator ad litem of the decedents' estates and that, even if Fields had been properly appointed, an administrator ad litem does not have the authority to pursue a wrongful-death claim. On October 30, 2017, RAM filed a motion for a summary judgment, essentially joining CMI's summary-judgment motion.

The circuit court denied CMI's and RAM's summary-judgment motions on November 13 and 27, 2017, respectively. CMI and RAM then separately petitioned this Court for a writ of mandamus directing the circuit court to vacate its judgments denying their summary-judgment motions and to enter an order granting those motions. We consolidated the petitions for the purpose of writing one opinion.

Standard of Review

Although the denial of a summary-judgment motion is not generally reviewable by a petition for a writ of mandamus, see Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002), this Court has stated: " ' "Mandamus review is available where the petitioner challenges the subject-matter jurisdiction of the trial court based on the plaintiff's alleged lack of standing to bring the lawsuit." Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala. 2007).' " Ex parte Hubbard Props., Inc., 205 So.3d 1211, 1213 (Ala. 2016) (quoting Ex parte Rhodes, 144 So.3d 316, 318 (Ala. 2013) ). This Court set forth the applicable standard of review in Ex parte Bio-Medical Applications of Alabama, Inc., 216 So.3d 420, 422 (Ala. 2016) :

" 'A writ of mandamus is an extraordinary remedy, and it will 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).'
" Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998)."

Discussion

Initially, we note that the facts of this case present a unique situation. Throughout much of the litigation, the substantive law of Honduras, the site of the airplane crash, has been applied. However, based on the adoption of what is now § 13.50, Ala. Const. 1901, during the pendency of the litigation, the circuit court entered an order stating that Alabama substantive law, rather than Honduran substantive law, applied. This opinion should be read in the context of this peculiar situation.

As set forth above, we note that the substantive law of Honduras applied at the outset of this case. CMI and RAM make no argument that the plaintiffs failed to comply with Honduran law in pursuing their wrongful-death claims against CMI and RAM. Under the substantive law of Alabama, however, only a "personal representative" has the authority to pursue a wrongful-death action on the behalf of a decedent's heirs. § 6-5-410(a), Ala. Code 1975. Accordingly, under Alabama law, only those plaintiffs listed in the complaint who are personal representatives of the decedents may pursue the wrongful-death action.

CMI and RAM argue that the plaintiffs' wrongful-death action is a nullity because, they say, none of the plaintiffs qualifies as a "personal representative" under § 6-5-410(a). CMI and RAM make arguments concerning each plaintiff listed as a personal representative in the complaint; we will address those arguments in turn.

In the original complaint, the following plaintiffs are listed as personal representatives: "Gilbert Goldstein, Alice Goldstein, individually, and as Personal Representatives of the Estate of Mark Goldstein, deceased"; "Jose Rolando Gonzalez, individually and as Personal Representative of the Estate of Marjorie Alexandra Gonzalez"; and "Belinda Milagro Valladares Andino, individually, ... and as Personal Representative of the Estate of Luis Angel Lopez Barillas, deceased." It is undisputed that none of those plaintiffs was appointed as a personal representative of his or her decedent's estate by a court in the United States. In fact, as set forth above, nothing in the documents submitted by the parties indicate that any court appointed Gilbert Goldstein or Alice Goldstein as Mark's personal representative or that any court appointed Jose Rolando Gonzalez as Marjorie's personal representative. A Guatemalan court did appoint Andino as the "administrator of the intestate will or testament" of Luis, but the parties have not explained the legal ramifications of such an appointment.

Because there is nothing before this Court indicating that Gilbert, Alice, or Jose were appointed personal representatives of Mark's estate and Marjorie's estate, Gilbert, Alice, and Jose are not the proper parties to pursue a wrongful-death claim on behalf of the heirs of Mark or Marjorie. Therefore, the original complaint does not name a personal representative under § 6-5-410 for the estate of Mark or the estate of Marjorie. Concerning Andino, CMI and RAM argue that she is not the proper party to pursue a wrongful-death claim on behalf of Luis's heirs because, they argue, although she was appointed the "administrator of the intestate will or testament" of Luis in Guatemala, the administrator of an intestate will or testament under Guatemalan law is not the same as an administrator of an estate under Alabama law. See Waters v. Hipp, 600 So.2d 981, 982 (Ala. 1992) ("A 'personal representative,' for the purposes of § 6-5-410, is an executor or an administrator."). In support of their argument, CMI and RAM presented the affidavit testimony of Keith S. Rosenn, an expert on Latin American law who qualified as an expert witness, which states, in pertinent part:

"4. Both Guatemala and Honduras are civil law countries. Civil law countries do not recognize the common law concept of an 'estate' created upon one's death. As the authors of one of the leading casebooks on Comparative Law have pointed out:
" 'In civil countries, title and right to possession of a decedent's assets automatically vest, at the moment of death in the testamentary or legal heirs as universal successors of the deceased. Rudolph Schlesinger, Hans Baade, Peter Herzog & Edward Wise, COMPARATIVE LAW 31 (6th ed. 1998).'
"....
"5. In this respect, the laws of ... Guatemala and Honduras are similar. Neither Guatemala nor Honduras recognizes the Anglo-American concept of an estate with legal capacity to sue. Instead, they utilize the civil law concept of 'succession', which is not a legal entity and lacks capacity to sue or be sued. Pedro Lafont Pianetta, DERECHO DE SOCESIONES 174 (5th ed., Book I, 1989). Guatemala and Honduras have neither an equivalent to the English Statute of Wills nor to the contemporary equivalents in the laws of the states of the United States. Instead, property rights pass directly to the heirs of the decedent. The heirs represent the decedent and succeed to all transmissible rights and obligations.
"6. When a person dies intestate in Guatemala or Honduras, there is no appointment of a personal representative, executor, or equivalent thereof because there is no estate.
"7. Survival actions, as that term is used in the United States to mean actions on behalf of the decedent's estate for losses or injuries sustained by the defendant personally, are not recognized under Guatemalan or Honduran law. A third party has no independent right to bring suit directly against a defendant to recover damages for another's wrongful death."

(Capitalization in original.) According to Rosenn's affidavit testimony, there is no such thing as an administrator of an estate or a personal representative under Guatemalan law.

The plaintiffs assert that they "were performing substantially the same function in their respective countries" as an administrator in the United States would perform. However, the plaintiffs cite no law nor do they provide any evidence in support of their assertion. In fact, the plaintiffs offer no real argument in response to Rosenn's affidavit testimony. The plaintiffs merely question Rosenn's opinion, as follows:

"CMI's proposed expert Keith Rosenn claims that Guatemala's and Honduras's legal systems do not have 'personal representatives' like Alabama's legal system does. One must question how Mr. Rosenn can make such a claim when 'the term "personal representative" is not defined in § 6-5-410.' [ Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712,] 715 [ (Ala. 2009) ]."

The plaintiffs rely on Affinity Hospital, L.L.C. v. Williford, 21 So.3d 712, 715 (Ala. 2009), for the proposition that "the term 'personal representative' is not defined in § 6-5-410." This, of course, is true; § 6-5-410 does not provide a definition of the term "personal representative." However, the term "personal representative" has been defined by the courts of this State. In Scroggins v. Johnson, 907 So.2d 1059, 1064 (Ala. Civ. App. 2004), the Alabama Court of Civil Appeals stated the following concerning the function and role of a "personal representative":

"In the context of a wrongful-death action, the sole role of a personal representative, such as an administrator or an executor, ' "is to maintain the suit, and collect the damages and pay them over to the distributees" '; in other words, an administrator is ' "a mere agency and conduit, provided by the [wrongful-death] statute for bringing the suit, collecting the damages, and passing them over to those entitled thereto." ' Hatas v. Partin, 278 Ala. 65, 68, 175 So.2d 759, 761 (1965) (quoting Kennedy v. Davis, 171 Ala. 609, 612, 55 So. 104, 105 (1911) ). For this reason, the personal representative may properly be said to be 'only [a] nominal or formal party.'
Board of Trustees of Univ. of Alabama v. Harrell, 43 Ala. App. 258, 261, 188 So.2d 555, 557 (1965). Indeed, it has been said that when a personal representative brings a wrongful-death action, he 'does not act strictly in his capacity as administrator of the estate of his decedent' because the administrator 'is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent.' Hatas, 278 Ala. at 68, 175 So.2d at 761."

See also Kirksey v. Johnson, 166 So.3d 633, 645-46 (Ala. 2014). Contrary to the plaintiffs' assertion, the term "personal representative" is well defined in Alabama law. Rosenn's affidavit testimony indicates that there is no such equivalent under Guatemalan law, and the plaintiffs have not offered any argument or evidence to rebut that statement. Accordingly, we conclude that CMI and RAM have demonstrated that Andino is not a personal representative of Luis's estate and, thus, not the proper party to maintain a wrongful-death action on behalf of Luis's heirs.

CMI and RAM have demonstrated that the original complaint filed by the plaintiffs was not filed by a personal representative of any of the decedents. Under Alabama law, because none of the plaintiffs had the authority to commence the wrongful-death action, the original complaint would be considered a nullity. See Northstar Anesthesia of Alabama, LLC v. Noble, 215 So.3d 1044, 1049 (Ala. 2016). CMI and RAM argue that this should settle the case because, under Alabama law, the original complaint is a nullity. However, it is undisputed that the substantive law of Honduras, not Alabama, applied at the time the original complaint was filed.

Whether an individual has the authority to pursue a wrongful-death action is a question of substantive law. A wrongful-death cause of action was unknown at common law; it is purely statutory. The Legislature, in adopting § 6-5-410, created the wrongful-death cause of action and determined that only a "personal representative" has the right to pursue a wrongful-death claim. Section 6-5-410 is a substantive law in that it is " '[t]hat part of law which creates, defines, and regulates rights and duties of parties, as opposed to "adjective, procedural, or remedial law," which prescribes method of enforcing the rights or obtaining redress for their invasion.' Black's Law Dictionary 1429 (6th ed. 1990)." Board of Sch. Comm'rs of Mobile Cty. v. Christopher, 97 So.3d 163, 169 (Ala. Civ. App. 2012). This Court stated in Scrushy v. Tucker, 70 So.3d 289, 299 (Ala. 2011), that "[m]atters are sometimes said to be procedural if they ' "concern methods of presenting to a court the operative facts upon which legal relations depend" '; whereas substantive matters are ' "those which concern the legal effect of those facts after they have been established." ' Schoenvogel v. Venator Group Retail, Inc., 895 So.2d 225, 251 (Ala. 2004) (quoting G. Stumberg, Principles of Conflict of Laws 133 (3d ed. 1963) )." Section 6-5-410, the statute that creates the right of a "personal representative" to pursue a wrongful-death claim on behalf of a decedent's heirs, is a substantive law in that it "creates, defines, and regulates rights and duties of parties." Therefore, because the substantive law of Honduras applied at the time the original complaint was filed, this substantive-law question-whether any of the plaintiffs had the authority to file a wrongful-death action-was to be decided according to the law of Honduras.

It is undisputed that the original complaint complied with the substantive law of Honduras; CMI and RAM have presented no argument that the plaintiffs who filed the original complaint did not have the authority to pursue the wrongful-death action. Accordingly, at the time the original complaint was filed it was not a nullity under the substantive law of Honduras and, thus, was capable of being amended. In fact, the original complaint was amended several times to add additional plaintiffs. At the time the circuit court granted the plaintiffs' motion and entered its July 29, 2016, order determining that the substantive law of Alabama applied in this case, the parties listed as plaintiffs in the numerous amended complaints were properly before the circuit court in accordance with the substantive law of Honduras. Therefore, in order to prevail, CMI and RAM must demonstrate that none of the plaintiffs named in the complaint as amended prior to July 29, 2016, are personal representatives of the decedents.

On March 7, 2012, the plaintiffs amended their complaint adding the following parties as personal representatives: "Adam Goldstein, individually, and as Co-Personal Representative of the Estate of Mark Goldstein, deceased"; "Karen Rosenthal, as Co-Personal Representative of the Estate of Mark Goldstein, deceased"; and "Leslie T. Fields as Co-Personal Representative" of the estates of the decedents. CMI and RAM argue that none of those named personal representatives actually meet the definition of "personal representative" under § 6-5-410 and, thus, do not have the authority to pursue the wrongful-death action.

Adam and Rosenthal claimed to be the personal representatives of Mark based on their appointment by a Florida court. An ancillary estate for Mark was opened in Florida because some of Mark's assets were located in Florida at the time of his death. The Florida court granted Adam and Rosenthal "ancillary letters of administration" appointing them

"under the laws of the State of Florida to act as ancillary personal representatives of the estate of Mark F. Goldstein, deceased, with full power to administer the estate according to law; to ask, demand, sue for, recover and receive the property of the decedent; to pay the debts of the decedent as far as the assets of the estate will permit and the law directs; and to make distribution of the estate according to law."

It is well established that a personal representative appointed by a court in another state may maintain a wrongful-death action in Alabama. See Hatas v. Partin, 278 Ala. 65, 175 So.2d 759 (1965). CMI and RAM do not argue otherwise. Instead, CMI and RAM argue that Adam and Rosenthal are not personal representatives under § 6-5-410(a) because they were appointed personal representatives of an ancillary estate, and not the domiciliary estate. CMI and RAM cite only the following sentence from Harrison v. Mahorner, 14 Ala. 829, 830 (1848), in support of their argument: "Our statute which authorizes foreign executors and administrators to sue in this state, must be construed to give this authority to executors and administrators in chief only, and not to those whose administration is ancillary merely." This sentence, however, is not part of this Court's opinion, but is the Court's summary of the plaintiff's arguments before this Court. See Harrison, 14 Ala. at 830-32. The actual opinion of the Court begins on page 832 of the 14th volume of Alabama Reports. Therefore, CMI and RAM have essentially cited no authority in support of their argument. Further, CMI and RAM do not offer any discussion or analysis of Harrison explaining why they believe it applies. Harrison appears to be distinguishable in that it does not involve a wrongful-death action, let alone a wrongful-death action filed in Alabama by a personal representative who was appointed in another state. Instead, the issue involved in Harrison was whether the personal representative of a foreign ancillary estate had the authority to withdraw assets from Alabama to be administered as part of the foreign ancillary estate rather than allowing the assets to be administered in Alabama or the foreign domiciliary estate. See Harrison, 14 Ala. at 838. Harrison is distinguishable.

CMI and RAM have not directed this Court's attention to any authority indicating that a personal representative of a foreign ancillary estate is without authority to pursue a wrongful-death claim under § 6-5-410(a). In the absence of such authority, it appears that a personal representative of a foreign ancillary estate is "[a] personal representative," as that term is used in § 6-5-410(a) ; Adam and Rosenthal have the authority to pursue the wrongful-death claim on behalf of Mark's heirs. Our conclusion as to this issue should be read in light of, and is limited to, the peculiar facts presented on original submission in this case.

Next, CMI and RAM argue that Adam and Rosenthal are judicially estopped from pursuing a wrongful-death claim in Alabama. CMI and RAM note that, in Adam and Rosenthal's pleading filed in the Florida court seeking to be named as personal representatives of Mark's estate, Adam and Rosenthal stated that "[t]his is an ancillary proceeding for the limited purpose of administering [Mark's] assets located in ... Florida." CMI and RAM argue that this statement in Adam and Rosenthal's pleading before the Florida court prohibits Adam and Rosenthal from pursuing the wrongful-death claim in Alabama. CMI and RAM provide a general citation to Ex parte Jackson Hospital & Clinic, Inc., 167 So.3d 324 (Ala. 2014), in support of their argument.

Ex parte Jackson Hospital is distinguishable from the present case in that it does not involve a personal representative appointed in another state who pursues a wrongful-death claim in Alabama. Rather, the question in Ex parte Jackson Hospital was whether an individual was barred from prosecuting her medical-malpractice claims against a hospital after she had failed to disclose those claims during the course of her bankruptcy proceedings. It was in that context that the doctrine of judicial estoppel was applied in Ex parte Jackson Hospital to bar the prosecution of the plaintiff's medical-malpractice claims. Further, the doctrine of judicial estoppel consists of several elements. See Ex parte First Alabama Bank, 883 So.2d 1236 (Ala. 2003) (identifying six elements the party asserting the doctrine of judicial estoppel must prove in order for the doctrine to apply). CMI and RAM have not presented any argument concerning the several elements of the doctrine of judicial estoppel, and it is not this Court's function to craft arguments for the parties. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007) (" ' "[I]t is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." ' Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) )."). Therefore, CMI and RAM have not demonstrated that the doctrine of judicial estoppel prohibits Adam and Rosenthal from being recognized as personal representatives and pursuing the wrongful-death claim on behalf of Mark's heirs.

CMI and RAM have failed to demonstrate that Adam and Rosenthal are without authority to pursue a wrongful-death claim on behalf of Mark's heirs. Therefore, CMI and RAM have failed to demonstrate that they are entitled to have the wrongful-death claim brought on behalf of Mark's heirs dismissed for lack of subject-matter jurisdiction.

CMI and RAM also challenge the authority of those pursuing wrongful-death claims on behalf of the heirs of Marjorie and Luis. As mentioned above, Fields claims to have the authority to pursue the wrongful-death claims of the decedents because she was appointed by the probate court as the administrator ad litem of each of the decedents' estates "with the ... limited powers, duties, and responsibilities ... to pursue the claims of [the decedents], or [their] estate[s], as set forth in [the wrongful-death action] before the Circuit Court of Mobile County, Alabama." The plaintiffs rely on Williford, supra, for their argument that an administrator ad litem has the authority to pursue a wrongful-death action. Citing Justice Bolin's special concurrence in Golden Gate National Senior Care, LLC v. Roser, 94 So.3d 365 (Ala. 2012), CMI and RAM argue that an administrator ad litem appointed under § 43-2-250, as was Fields, "lacks the capacity of a 'personal representative' " under § 6-5-410.

In his special concurrence in Golden Gate, Justice Bolin thoroughly explained why a wrongful-death action "may be instituted only by a personal representative, not by an administrator ad litem." 94 So.3d at 365 (Bolin, J., concurring specially). In short, Justice Bolin concluded that an administrator ad litem appointed under § 43-2-250 is not a personal representative for purposes of Alabama's wrongful-death statute, because § 43-2-250 allows a probate court to appoint an administrator ad litem only "when the estate of a deceased person must be represented and there is no executor or administrator of such estate" and "when the estate of a deceased person must be represented and the executor or administrator is interested adversely to the estate." Golden Gate, 94 So.3d at 370 (Bolin, J., concurring specially). Justice Bolin explained:

"The decedent's estate is not interested in a wrongful-death action or in any proceeds derived from such an action. Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) (recognizing that the personal representative is acting only as a trustee for those who are the designated beneficiaries under the Wrongful Death Act). None of the proceeds pass through the estate, which would make them subject to the claims of creditors. The proceeds pass to the decedent's heirs; this is true whether the administration is testate or intestate."

Id. Justice Bolin also explained in his special writing why Williford, relied upon in this case by the plaintiffs, is not authoritative on the issue whether an administrator ad litem has the authority to pursue a wrongful-death claim under § 6-5-410 :

"This brings us to Affinity Hospital, LLC v. Williford, 21 So.3d 712 (Ala. 2009). In Williford, the mother of a decedent who had committed suicide at Trinity Medical Center petitioned the Jefferson County Probate Court to appoint the county administrator, Doris Williford, as administrator ad litem. The request was made in order to obtain medical records held by Trinity Medical Center for an investigation to determine whether there were grounds to assert a wrongful-death claim. The probate court granted the petition. Thereafter, without any subsequent appointment of Williford as a personal representative of the decedent's estate by the probate court, Williford, as administrator ad litem, filed a wrongful-death action in the circuit court. Trinity answered and challenged Williford's authority to file the action as an administrator ad litem. Williford then petitioned the Jefferson County Probate Court for an appointment as personal representative of the decedent's estate, which petition was granted. The next day, Williford amended her wrongful-death complaint to substitute herself as personal representative for herself as administrator ad litem, more than two years after the decedent's death. Trinity moved to dismiss the amended complaint, which motion the circuit court denied. However, in a permissive appeal pursuant to Rule 5, Ala. R. App. P., the circuit court certified the controlling question of law as whether the administrator ad litem had the 'capacity' to file the wrongful-death action. After discussing Franks [v. Norfolk Southern Ry., 679 So.2d 214 (Ala. 1996),] and Justice Houston's special writing in that case, this Court answered the question from the circuit court by correctly stating that Trinity had cited no authority for the proposition that an administrator ad litem lacked the powers of a personal representative for the purpose of prosecuting a wrongful-death action and that nothing in § 43-2-250, Code of Ala. 1975, forbids an administrator ad litem from taking such action. The appellant's failure to find or to cite any previous decision on the issue and the absence of express language in § 43-2-250 forbidding an administrator ad litem from taking such action do not necessarily mean that the law does in fact empower an administrator ad litem to prosecute a wrongful-death action."

Golden Gate, 94 So.3d at 367-68 (Bolin, J., concurring specially)(some emphasis added). In Williford, the parties did not present this Court with any authority indicating that an administrator ad litem lacks the authority to pursue a wrongful-death action under § 6-5-410. Williford, 21 So.3d at 718 ("No authority has been cited indicating that an administrator ad litem lacks the powers of a 'personal representative' for purposes of prosecuting a wrongful-death action."). Without authority to the contrary, this Court did not in Williford reverse the trial court's judgment for allowing an administrator ad litem to pursue the wrongful-death claim at issue. For this reason Justice Bolin concluded in his special concurrence in Golden Gate -and we agree-that Williford is not necessarily dispositive of the issue whether an administrator ad litem may pursue a wrongful-death claim-the issue currently before this Court.

In the present case, CMI and RAM have presented argument and authority indicating that an administrator ad litem appointed under § 43-2-250 does not have the authority to pursue a wrongful-death claim. Based on the reasoning set forth in Justice Bolin's special concurrence in Golden Gate, we conclude that Fields, in her capacity as an administrator ad litem, does not have the authority to pursue a wrongful-death claim under § 6-5-410. Accordingly, CMI and RAM have demonstrated that none of the plaintiffs are personal representatives of Marjorie's or Luis's estate. Therefore, we conclude that CMI's and RAM's mandamus petitions are due to be granted concerning the wrongful-death claims brought on behalf of the heirs of Marjorie and Luis.

Conclusion

Based on the foregoing, we conclude that CMI and RAM have failed to demonstrate that Adam and Rosenthal are without authority to pursue a wrongful-death claim on behalf of Mark's heirs. Therefore, in this regard, we deny CMI's and RAM's petitions for a writ of mandamus. We also conclude that CMI and RAM have demonstrated that none of the plaintiffs are personal representatives of Marjorie's or Luis's estate and, thus, lack the authority to pursue a wrongful-death claim on behalf of Marjorie's or Luis's heirs. Accordingly, the circuit court lacks subject-matter jurisdiction over the wrongful-death claims brought on behalf of Marjorie's and Luis's heirs, and CMI and RAM are entitled to have their summary-judgment motions granted in that respect and to have those claims dismissed for lack of subject-matter jurisdiction. Therefore, in this regard, we grant CMI's and RAM's petitions for a writ of mandamus and order the circuit court to grant CMI's and RAM's summary-judgment motions and dismiss the wrongful-death claims asserted by the heirs of Marjorie and Luis.

1170165-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

1170281-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

Bolin, J., concurs in the result.

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

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

As to the portion of the main opinion denying the requests to issue a writ of mandamus directing the circuit court to dismiss the wrongful-death action based on the death of Mark Goldstein, I concur in the result. As to the portion of the main opinion granting the petitions and directing the circuit court to dismiss the wrongful-death actions filed by the administrator ad litem of the estates of Marjorie Gonzalez and Luis Angel Lopez Barillas, I respectfully dissent.

In Affinity Hospital, L.L.C. v. Williford, 21 So.3d 712 (Ala. 2009), this Court held that an administrator ad litem had the capacity as a "personal representative" to file a wrongful-death action under Ala. Code 1975, § 6-5-410. Under that precedent, the administrator ad litem in the instant case could file the wrongful-death actions regarding the deaths of Marjorie and Luis. In Williford, the Court noted that there were "several reported cases in which it appears that an administrator ad litem, without challenge, has filed a wrongful-death action." 21 So.3d at 716. See, e.g., Ex parte Sumter Cty., 953 So.2d 1235 (Ala. 2006) ; Franks v. Norfolk S. Ry. Co., 679 So.2d 214 (Ala. 1996) ; Fitts v. Minnesota Mining & Mfg. Co., 581 So.2d 819 (Ala. 1991) ; and Handley v. Richards, 518 So.2d 682, 683 (Ala. 1987) (Maddox, J., concurring specially). We further noted that the Franks decision appeared to presume, but without explicit analysis of the issue, that an administrator ad litem was a "personal representative," and a special writing further argued that such was the case. 21 So.3d at 717. The parties in Williford provided no authority indicating otherwise: "No authority has been cited indicating that an administrator ad litem lacks the powers of a 'personal representative' for purposes of prosecuting a wrongful-death action." 21 So.3d at 718. And nothing in the plain language of Ala. Code 1975, § 43-2-250, forbade "an administrator ad litem from taking such action." Id. We thus held that the administrator ad litem "had the capacity to file the wrongful-death action in this case." 21 So. 3d at 719-20 (emphasis added).

A writ of mandamus is appropriate when the petitioner shows a clear legal right to the order sought. Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001). The petitions before us argue that an administrator ad litem cannot be a "personal representative" for purposes of a wrongful-death action. Williford holds the exact opposite. The petitions, however, do not ask that Williford be limited, distinguished, or overruled; in fact, the petitions do not address Williford at all. The failure to address caselaw clearly contrary to the petitioners' argument, and the failure to make a sufficient argument discussing the merits of a complex issue of statutory construction, equates to a failure to show a clear legal right to relief; thus, the petitions are due to be denied as to the action filed by the administrator ad litem for the estates of Marjorie and Luis.

Because limited arguments were presented in Williford, I am open to examining new arguments that were not raised in Williford on the issue whether an administrator ad litem is or is not a personal representative for purposes of filing a wrongful-death action. At this time, however, stare decisis requires that Williford be followed, absent a proper challenge. Ex parte McKinney, 87 So.3d 502, 509 n.7 (Ala. 2011) ("[T]his Court has long recognized a disinclination to overrule existing caselaw in the absence of either a specific request to do so or an adequate argument asking that we do so."), and Clay Kilgore Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So.2d 893, 898 (Ala. 2006) (noting the absence of a specific request by the appellant to overrule existing authority and stating that, "[e]ven if we would be amenable to such a request, we are not inclined to abandon precedent without a specific invitation to do so").

Bryan, J., concurs.

      The complaint also listed as plaintiffs Luis Alfonso Lopez Ochaita; Guadalupe Barillas Tejeda de Lopez; and Charver Union, a Delaware Corporation. Those parties are not relevant to these petitions.

      The issue whether Alabama substantive law applies is not the subject of these mandamus petitions.

      In fact, CMI notes in its petition that Gilbert and Alice have been dismissed from this action. CMI served on Jose the following interrogatory: "State the name and address of the court in which you were appointed personal representative, administrator, and/or administratrix of the estate of [Marjorie] and state the date of your appointment." Jose responded: "Application has been made to the court in Honduras and the order is still pending." The parties have not directed this Court's attention to anything indicating that a court in Honduras appointed Jose as the personal representative of Marjorie's estate.

      Of course, this Court would consider any authority presented in a future case indicating that a personal representative of a foreign ancillary estate is not "[a] personal representative," as that term is used in § 6-5-410(a).

      The plaintiffs state that "[t]his Court cited Williford with approval in Kirksey v. Johnson, 166 So.3d 633, 641 (Ala. 2014), referring to Williford as the 'controlling case' on this issue." However, the above quote from Kirksey relied upon by the plaintiffs is actually this Court's quoting the decision of the trial court under review in summarizing the facts and procedural history in that case. The trial court stated that Williford is the "controlling case"; this Court did not make such a statement. See Kirksey, 166 So.3d at 641. In fact, this Court specifically stated that "the question of Kirksey's capacity, as administrator ad litem, to bring the wrongful-death action is not before this Court." Kirksey, 166 So.3d at 645 n. 5.

      We note that CMI and RAM also argue that Fields was not properly appointed as an administrator ad litem. However, we need not address that argument because, based on our conclusion, even if Fields was properly appointed as an administrator ad litem, she does not have the authority to pursue a wrongful-death action under § 6-5-410.

      In his special writing, Justice Shaw takes the position that CMI and RAM have failed to present argument concerning Williford. However, CMI specifically states in its petition that, "[f]or all the many reasons articulated by Justice Bolin in his concurrence in Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So.3d 365 (Ala. 2012), even a properly appointed administrator ad litem ... lacks the capacity of a 'personal representative' required under ... § 6-5-410." CMI's petition, at p. 28. As set forth above, in his special concurrence in Golden Gate, Justice Bolin thoroughly discusses Williford and explains why it is not controlling. CMI presented sufficient argument for this Court to consider this issue concerning the subject-matter jurisdiction of the circuit court.

      The argument addressing the proper construction of § 6-5-410 merely refers, without discussion, to Justice Bolin's special writing in Golden Gate National Senior Care, LLC v. Roser, 94 So.3d 365 (Ala. 2012).


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE Dionntez BYNER
    (In re Dionntez Byner v. State of Alabama)
    1170397
    Supreme Court of Alabama.
    August 17, 2018
    Roger C. Appell, Birmingham, for petitioner.
    Steve Marshall, atty. gen., and Andrew L. Brasher, deputy atty. gen., and Marc A. Starrett, asst. atty. gen., for respondent.
   PARKER, Justice.

Dionntez Byner petitioned this Court for a writ of certiorari to review the Alabama Court of Criminal Appeals' decision affirming the Jefferson Circuit Court's dismissal of Byner's petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. See Byner v. State, 268 So. 3d 629 (Ala. Crim. App. 2017) (table). In his petition, Byner challenged his 2015 convictions for one count of robbery in the first degree, see § 13A-8-41, Ala. Code 1975, and one count of obstructing justice using a false identity, see § 13A-8-194, Ala. Code 1975. We issued the writ of certiorari in order to determine as an issue of first impression whether robbery is a crime involving "dishonesty or false statement" for purposes of Rule 609(a)(2), Ala. R. Evid., thereby rendering evidence of a conviction for robbery admissible for impeachment purposes. We hold that robbery is a crime involving "dishonesty or false statement" and that a prior robbery conviction is admissible for impeachment purposes under Rule 609(a)(2). Accordingly, we affirm the Court of Criminal Appeals' judgment.

Facts and Procedural History

The facts in this case are undisputed. On February 17, 2015, Byner was convicted in the circuit court of robbery in the first degree and of obstructing justice using a false identity. Byner was sentenced as a habitual felony offender to concurrent terms of 360 months' imprisonment for his robbery conviction and 120 months' imprisonment for his obstruction-of-justice conviction.

At trial, Byner testified on his own behalf. Byner testified that he and the victim had staged the robbery because the victim owed money to a drug dealer and needed an excuse for his failure to pay the debt. The State then cross-examined Byner about two prior robbery convictions -- a first-degree robbery conviction in October 2000 and a third-degree robbery conviction in July 2001. The Court of Criminal Appeals affirmed Byner's convictions and sentences on direct appeal. See Byner v. State, 219 So.3d 722 (Ala. Crim. App. 2015).

On April 14, 2016, Byner filed the instant Rule 32 petition, his first, alleging that he had been denied his right to the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Byner argued that his trial counsel had failed to object to the State's cross-examination of Byner regarding his two prior robbery convictions and that his failure to do so constituted ineffective assistance of counsel. The circuit court summarily dismissed Byner's Rule 32 petition on June 21, 2017.

On December 8, 2017, the Court of Criminal Appeals affirmed the circuit court's dismissal of Byner's Rule 32 petition by an unpublished memorandum. See Byner v. State, 268 So. 3d 629 (Ala. Crim. App. 2017) (table). Byner petitioned this Court for a writ of certiorari, and this Court issued the writ to review as a material question of first impression whether robbery is a crime involving "dishonesty or false statement" for purposes of Rule 609(a)(2) so as to make evidence of a robbery conviction admissible for impeachment purposes.

Standard of Review

" ' "[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).' Ex parte Clemons, 55 So.3d 348, 350 (Ala. 2007)."

Ex parte Carruth, 21 So.3d 770, 772 (Ala. 2009).

Discussion

Byner claims that he was deprived of effective assistance of counsel when his trial counsel failed to object to evidence of Byner's two prior robbery convictions. In order to prove that his counsel was ineffective in that regard, Byner must demonstrate that an objection to the admission of evidence of Byner's prior robbery convictions would have been sustained. Therefore, the issue before us is whether evidence of a prior robbery conviction is automatically admissible for impeachment purposes under Rule 609(a)(2).

In his brief before this Court, Byner contends that "robbery is not a crime involving crimen falsi and thus should not be automatically admissible under Rule 609(a)(2) of the Alabama Rules of Evidence." Byner's brief, at p. 2. Instead, Byner contends that evidence of the two prior robbery convictions is admissible only if its probative value outweighs any prejudicial effect under the balancing test set forth in Rule 609(a)(1), Ala. R. Evid., allowing evidence of such a conviction "if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused." Byner's brief, at pp. 4-5. The State contends, on the other hand, that "robbery is a crime of dishonesty and is thus admissible for impeachment under Rule 609 of the Alabama Rules of Evidence." State's brief, at p. 11.

The relevant portions of Rule 609 state:

"(a) General Rule. For the purpose of attacking the credibility of a witness,
"....
"(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."

Although this Court has never addressed the issue whether robbery is a crime involving dishonesty or false statement for purposes of Rule 609(a)(2), the Court of Criminal Appeals has interpreted Rule 609(a)(2) with regard to the admissibility of evidence of convictions for other crimes. In Huffman v. State, 706 So.2d 808 (Ala. Crim. App. 1997), the Court of Criminal Appeals held that theft is a crime involving dishonesty for purposes of Rule 609(a)(2). In reaching its conclusion, the Huffman court relied on the following passage from McElroy's Alabama Evidence, in which Professor Gamble explained the then newly adopted Rule 609(a)(2) :

"The phrase 'dishonesty or false statement' generally has been given a narrow interpretation such as to include only crimes that carry some element of deceit, untruthfulness or falsification bearing on the witness' propensity to testify untruthfully. In light of this interpretation, such would quite clearly include crimes, among others, such as embezzlement, perjury, subornation of perjury, false statement, criminal fraud, false pretense, forgery, worthless check violations, failure to file tax returns, counterfeiting and bribery.
"The uncertainty in this area arises with regard to convictions for crimes of theft and violence. A number of courts addressing the issue hold that violent crimes, such as robbery, generally do not involve dishonesty or false statement. Some courts conclude that theft crimes, such as burglary or larceny, do not involve dishonesty or false statements. This issue will have to be decided on a case-by-case basis after Alabama's adoption of the Alabama Rules of Evidence. If Alabama courts accept the narrow interpretation of dishonesty and false statement then many crimes that were usable to impeach under the historic moral turpitude test would not qualify under Rule 609(a)(2). In contrast, however, Alabama courts could follow the lead of other courts which have placed additional emphasis upon the term 'dishonesty' as opposed to focusing entirely upon 'false statement.' Preexisting Alabama decisions have long used the term 'dishonesty' as a trait for testing whether crimes satisfy the historic moral turpitude test. Should the courts deem this line of cases controlling post-rules then convictions for the following crimes could continue usable for impeachment: murder, robbery, rape, burglary and larceny. Even if the narrow interpretation is adopted, and these crimes of violence and theft are held not to involve dishonesty or false statement per se, they could yet be found usable by following the lead of those courts which have been willing to look beyond the formal elements of the crime to the underlying facts to determine whether the crime was committed under circumstances of deceit, untruthfulness or falsification."

C. Gamble, McElroy's Alabama Evidence § 145.01(9) at 675-76 (5th ed. 1996)(footnotes omitted; emphasis added).

In Huffman, one of the first cases applying the Alabama Rules of Evidence, the Court of Criminal Appeals declined to adopt the narrow interpretation of dishonesty set forth in federal decisions interpreting the federal version of Rule 609(a)(2). Instead, the Huffman court followed Alabama's own pre-rules precedent regarding dishonesty as a test for determining whether a crime was one "involving moral turpitude" under § 12-21-162, Ala. Code 1975. The Huffman court stated:

"In Ex parte McIntosh, [443 So.2d 1283 (Ala. 1983) ], the Alabama Supreme Court listed murder, rape, burglary, robbery, and larceny as '[a]mong those crimes that rise to such a level as to permanently cast doubt on the truthfulness and veracity of those who commit them.' 443 So.2d at 1285. We do not see how a crime can cast a permanent doubt upon one's truthfulness under the 'moral turpitude' standard and yet not involve dishonesty or false statement under the Alabama Rules of Evidence. We find that the narrow interpretation of 'dishonesty' in federal cases construing Rule 609(a)(2) beggars common sense. Clearly, the crime of theft involves deceit and would directly bear on the ability of the person convicted of the offense to testify truthfully."

706 So.2d at 813 (emphasis added).

The Huffman court followed the lead of other courts in placing greater emphasis on whether violent crimes involved "dishonesty" rather than focusing solely on whether such crimes involved "false statements." Specifically, the Huffman court adopted the Florida Supreme Court's broader interpretation of "dishonesty" in Florida's version of Rule 609(a)(2) set forth in State v. Page, 449 So.2d 813 (Fla. 1984). The Huffman court stated:

"[W]e wholeheartedly agree with the Florida Supreme Court's observations when it was called on to construe Florida's version of Rule 609 in [ State v. Page, 449 So.2d 813, 815-16 (Fla. 1984) ]:
" 'It is our view that the commission of petit theft, or any other offense falling within the scope of chapter 812, Florida Statutes (1981) [dealing with "Theft, Robbery, and Related Crimes"], necessarily involves "dishonesty" so as to bring any conviction for such a crime within the scope of subsection 90.610(1) [Florida's version of Rule 609 ]. We realize that our interpretation of the statute differs from the federal construction of identical language contained in federal rule 609. We are also aware that the position we take has been labelled the "minority view." See C. Ehrhardt Florida Evidence, § 610.1 at 88 (Supp. 1982). But we are convinced that our interpretation is the more logical one, and we are not alone. The Illinois Supreme Court, in construing federal rule 609, which it had expressly adopted, stated:
" ' "There is little doubt but that theft reflects adversely on one's honesty and therefore relates to one's ability to be truthful under oath....
" ' "... [A]ny misdemeanor, which has as its basis lying, cheating, deceiving, or stealing, bears a reasonable relation to testimonial deceit and should be admissible for impeachment purposes."
" ' People v. Spates, 77 Ill. 2d 193, 204, 32 Ill.Dec. 333, 339, 395 N.E.2d 563, 569 (1979).
" 'As the state has pointed out, subsection 90.610(1) refers to crimes involving "dishonesty or false statement." To restrict the rule's application only to those offenses which evidence an element of affirmative misstatement or misrepresentation of fact would be to ignore the plain meaning of the word "dishonesty." In Spates, the Supreme Court of Illinois pointed out that Webster's Third New International Dictionary 650 (1971) defines "dishonesty" as a "breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding...." Id. at 203, 32 Ill.Dec. at 338, 395 N.E.2d at 568.'
" 449 So.2d at 815, 816 (emphasis added in Page ) (footnote omitted).
"Based on the foregoing, we hold that for purposes of Rule 609(a)(2) theft is a crime involving 'dishonesty' and bears directly on the capacity of a witness convicted of that offense to testify truthfully at trial."

706 So.2d at 814.

The 2009 revision of McElroy's Alabama Evidence further explains the effect of Huffman on the interpretation of Rule 609(a)(2) :

"[T]he Alabama Court of Criminal Appeals, speaking in Huffman v. State, chose to embrace a broader interpretation of 'dishonesty or false statement,' which places equal emphasis upon the term 'dishonesty.' Under this broader interpretation, the Huffman court gave the Rule 609(a)(2) term 'dishonesty' its dictionary meaning as a 'breach of honesty or trust, as lying, deceiving, cheating, stealing or defrauding....'). A qualifying crime, under Huffman's broader interpretation, is one which involves dishonesty thusly defined and 'bears directly on the capacity of a witness ... to testify truthfully at trial.' Although the conviction held qualified for impeachment under Rule 609(a)(2) in Huffman was for the crime of theft, it seems that this broader interpretation would be satisfied by all property crimes such as burglary, robbery and larceny."
__________
"It now appears post- Huffman that there are two kinds of crimes the conviction of which qualify for impeachment under Rule 609(a)(2)'s 'dishonesty or false statement.' First, there are those satisfying the narrow interpretation which requires some element of fraud, deceit or misrepresentation. These include crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement or false pretense. Second, there are those crimes, illustrated by burglary, robbery and larceny, which satisfy the broader Huffman interpretation and involve 'dishonesty (meaning breach of honesty or trust, as lying, deceiving, cheating, stealing or defrauding) and bear(s) directly on the capacity of a witness ... to testify truthfully at trial.' "

C. Gamble and R. Goodwin, McElroy's Alabama Evidence § 145.01(7)(c) and (d) at 871-72 (6th ed. 2009) (footnotes omitted; emphasis added). See also McElroy's Alabama Evidence § 145.01(9)(m).

Thus, in order to determine whether robbery is a crime involving dishonesty under the test set forth in Huffman, we must determine whether robbery "bears directly on the capacity of a witness convicted of that offense to testify truthfully at trial." Huffman, 706 So.2d at 814.

Robbery in the third degree is defined in § 13A-8-43, Ala. Code 1975, as follows:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
"(1) Uses force against the person of the owner or any person present with the intent to overcome his physical resistance or physical power of resistance; or
"(2) Threatens the imminent use of force against the person of the owner or any person present with the intent to compel acquiescence to the taking of or escaping with the property."

(Emphasis added.)

Robbery, as defined in Alabama, is "theft plus the element of force or threat of force." Ramsey v. State, 441 So.2d 1065, 1067 (Ala. Crim. App. 1983) (emphasis added). Accordingly, theft has been held to be a lesser-included offense of robbery, both for purposes of allowing a defendant charged with robbery to be convicted of theft, see Franklin v. State, 854 So.2d 153, 155 (Ala. Crim. App. 2002), and Bailey v. State, 466 So.2d 176, 179 (Ala. Crim. App. 1985), and of prohibiting convictions for both robbery and theft based on a single transaction because of double-jeopardy considerations, see Lynch v. State, 229 So.3d 260, 268 (Ala. Crim. App. 2016) ; Branum v. State, 623 So.2d 348 (Ala. Crim. App. 1992) ; and Connolly v. State, 539 So.2d 436, 441-43 (Ala. Crim. App. 1988).

A lesser-included offense is defined in § 13A-1-9, Ala. Code 1975, as follows:

"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by the same or fewer than all the facts required to establish the commission of the offense charged ...."

The Commentary to § 13A-1-9 explains:

"(1) Subdivision (a)(1) provides that a lesser offense is necessarily included in a charge of the greater offense if the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense."

Thus, under Alabama law, a conviction for robbery necessarily requires proof of every element of theft; theft includes as an element the "intent to deprive the owner of his or her property." § 13A-8-2(a)(1), Ala. Code 1975. It is this element that renders theft a crime involving dishonesty. Because theft and robbery share this element, the same considerations that render theft a crime involving dishonesty apply also to robbery. Thus, we hold that robbery, like theft, is a crime that "bears directly on the capacity of a witness convicted of that offense to testify truthfully at trial." Huffman, 706 So.2d at 814.

In his appellate brief, Byner urges this Court to adopt the narrow definition of "dishonesty or false statement" rejected by the Court of Criminal Appeals in Huffman. Byner relies heavily on the South Carolina Supreme Court's decision in State v. Broadnax, 414 S.C. 468, 779 S.E.2d 789 (2015), in which the South Carolina Supreme Court held that, under South Carolina's version of Rule 609(a)(2), which is identical to Alabama's Rule 609(a)(2), robbery is not an offense involving dishonesty or false statement. In doing so, the South Carolina Supreme Court relied on the explanatory language included in Rule 609(a)(2) of the Federal Rules of Evidence :

"The Federal Rules of Evidence specifically identify crimena falsi in Rule 609(a)(2), FRE, as crimes which by their very nature permit the impeachment of a witness convicted of a crime of 'dishonesty or false statement.' ... In fact, " '[t]he original Conference Report makes the link between Rule 609(a)(2) and the crimena falsi explicit, defining the phrase "crimes involving dishonesty or false statement" as "crimes such as perjury, subornation of perjury, false statements, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused propensity to testify truthfully." ' "

Broadnax, 414 S.C. at 476-77, 779 S.E.2d at 793 (quoting Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087, 1090-91 (2000) (footnotes omitted) ).

Byner, citing Broadnax, urges this Court to adopt the narrow crimen falsi test set forth in the Advisory Committee's Notes to Federal Rule 609(a)(2). Byner relies heavily on the fact that, when Alabama adopted the Alabama Rules of Evidence in 1996, it also adopted the following Advisory Committee's Notes:

"Crimes involving 'dishonesty or false statement,' as indicated in the report of the Senate Committee on the Judiciary during the process of adopting the corresponding Federal Rule 609, include crimes 'such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.' Senate Comm. on Judiciary, Fed. Rules of Evidence, S. Rep. No. 1277, 93d Cong., 2d Sess., 14 (1974)."

Advisory Committee's Notes to Rule 609, Ala. R. Evid. Byner argues that, by adopting the Senate Judiciary Committee's comments on Federal Rule 609(a)(2), the advisory committee intended to restrict the application of Rule 609(a)(2) to crimen falsi in accord with federal cases that have dealt with the issue.

However, the Advisory Committee's Notes also indicate the weight of authority to be accorded federal cases interpreting the Federal Rules of Evidence. The Advisory Committee's Notes to Rule 102, Ala. R. Evid., state:

"These rules have been modeled, except where a different treatment was deemed justified for Alabama practice, after the Federal Rules of Evidence, and much of the material in the advisory notes is devoted to a discussion of whether the Alabama Rule of Evidence is identical to or different from its counterpart under the Federal Rules of Evidence. The committee assumes, consequently, that cases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence. Cases interpreting federal rules, however, are persuasive rather than mandatory authority before the Alabama courts."

Advisory Committee's Notes to Rule 102, Ala. R. Evid. (emphasis added; citations omitted). Likewise, McElroy's Alabama Evidence states:

"Alabama courts, in interpreting the Alabama Rules of Evidence patterned after the Federal Rules of Evidence, will look to federal court decisions as persuasive authority. Additional persuasive authority is found in the advisory notes to the Federal Rules of Evidence.
"It should be noted, of course, that the federal decisions and advisory notes to the Federal Rules of Evidence are not mandatory authority. Alabama courts, because they are not constitutionally bound to do otherwise, may simply disagree with the reasoning underlying the federal interpretations."

McElroy's Alabama Evidence § 1.03 at 2 (footnotes omitted; emphasis added).

We are unpersuaded that the Advisory Committee's Notes require us to abandon the definition of dishonesty articulated in Huffman. As the Huffman court stated:

"While it is certainly wise to look to federal authority for guidance in applying the new rules of evidence, the federal interpretations are not necessarily binding on this court. Several states that have modeled their rules of evidence after the federal rules have not followed the federal majority view on this issue where to do so would change the state's substantive law."

706 So.2d at 813 (emphasis added) (citing State v. Page, 449 So.2d 813 (Fla. 1984), and People v. Spates, 77 Ill. 2d 193, 395 N.E.2d 563, 32 Ill.Dec. 333 (1979) ).

The substantive law of Alabama requires an interpretation of dishonesty that is consistent with Alabama's historic moral-turpitude test. The test for "dishonesty" articulated in Huffman-- whether the crime bears directly on the capacity of a witness convicted of that offense to testify truthfully at trial -- is consistent with that test. Rather than change the substantive law of Alabama, we reject the narrow interpretation of "dishonesty and false statement" as articulated in federal cases construing Federal Rule 609(a)(2).

Byner points out in his appellate brief that the State of South Carolina argued in Broadnax that South Carolina was not required to adopt the federal crimen falsi approach because South Carolina had not adopted the Senate Judiciary Committee's explanatory comments and that the South Carolina Supreme Court rejected that argument because the crimen falsi doctrine was well established in the common law of South Carolina. Byner seems to be arguing that, because the South Carolina Supreme Court chose to follow the federal crimen falsi approach even when South Carolina had not adopted the Senate Judiciary Committee's explanatory comments, this Court is obligated to follow the federal crimen falsi approach because the Advisory Committee on the Alabama Rules of Evidence incorporated the Senate Judiciary Committee's explanatory comments in its notes.

Byner's argument in this regard ignores the fact that the South Carolina Supreme Court, like this Court, is not constitutionally obligated to follow the federal majority rule. In fact, the South Carolina Supreme Court cited authority standing for the proposition that " 'federal interpretation of [the Federal Rules of Evidence] is persuasive authority.' " Broadnax, 414 S.C. at 477 n. 7, 779 S.E.2d at 793 n. 7 (quoting Laffitte v. Bridgestone Corp., 381 S.C. 460, 474 n. 10, 674 S.E.2d 154, 162 n. 10 (2009) ). Instead, the South Carolina Supreme Court chose to adopt the narrower crimen falsi approach because "the notion of crimen falsi in the evidentiary context is long-established in the common law of South Carolina." Broadnax, 414 S.C. at 477, 779 S.E.2d at 793 (emphasis added).

By the same reasoning, this Court is at liberty to adopt a construction of Rule 609(a)(2) that is consistent with Alabama's long-established notion that crimes involving dishonesty are those crimes "bear[ing] directly on the capacity of a witness convicted of that offense to testify truthfully at trial." As the State notes in its appellate brief, before 1886, Alabama followed the common law in excluding the testimony of witnesses convicted of "infamous" crimes. Although the list of infamous crimes included crimen falsi, it was not restricted to such crimes. "An infamous crime was regarded as comprehending treason, felony, and crimen falsi." Sylvester v. State, 71 Ala. 17, 25 (1881) (emphasis added). In Sylvester, this Court noted:

"[I]t is the nature of the crime, and not the magnitude of the punishment, which constitutes a blemish on the moral character, and thereby incapacitates to testify by rendering infamous. The test seems to be, 'whether the crime shows such depravity in the perpetrator, or such a disposition to pervert public justice in the courts, as creates a violent presumption against his truthfulness under oath.' "

71 Ala. at 25 (emphasis added).

With the enactment of § 2766 of the Alabama Code of 1886, the Alabama Legislature changed the common-law rule to allow witnesses who had been convicted of infamous crimes other than perjury to testify. However, § 2766 allowed the impeachment of witnesses who had been convicted of infamous crimes by introducing their convictions into evidence. Accordingly, this Court held that evidence of prior larceny convictions was admissible for impeachment purposes. See Pryor v. State, 99 Ala. 196, 13 So. 681 (1893), and Viberg v. State, 138 Ala. 100, 35 So. 53 (1903).

When the 1907 Code was adopted, the Alabama Legislature substituted the "moral-turpitude" standard for the "infamous-crimes" standard. The moral-turpitude standard was recodified at § 12-21-162(b), Ala. Code 1975, as follows:

"(b) As affecting his credibility, a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence."

Crimes involving moral turpitude were defined for purposes of § 12-21-162(b) as "crimes that rise to such a level as to permanently cast doubt on the truthfulness and veracity of those who commit them." Ex parte McIntosh, 443 So.2d 1283, 1285 (Ala. 1983). Crimes satisfying the moral-turpitude standard were:

"1) murder, Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956) ; 2) rape, Matthews v. State, 51 Ala. App. 417, 286 So.2d 91 (1973) ; 3) robbery, Matthews, supra ; 5) larceny, Matthews, supra ; and 6) income tax evasion, Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972)."

McIntosh, 443 So.2d at 1285-86.

Although the moral-turpitude test of § 12-21-162(b) has been superseded by the "dishonesty or false statement" test of Rule 609(a)(2), the Court of Criminal Appeals' definition of crimes involving dishonesty as "bear[ing] directly on the capacity of a witness convicted of that offense to testify truthfully at trial," Huffman, 706 So.2d at 814, is consistent with the long-established law in Alabama concerning the admissibility of prior criminal convictions for impeachment purposes. The reasoning employed by the South Carolina Supreme Court in Broadnax actually argues in favor of this Court's adopting the broad definition of dishonesty set forth in Huffman in an effort to remain consistent with Alabama's legal history concerning this issue.

Lastly, Byner contends that robbery is not a crime involving dishonesty because "robbery is a crime of violence." Byner's brief, at p. 4. Byner cites Dolan v. State, 81 Ala. 11, 1 So. 707 (1887), in which this Court stated that "[a] character for violence or turbulence sheds no light on the credibility of a witness." 81 Ala. at 19, 1 So. at 713. The substance of Byner's argument appears to be that, because robbery is a crime involving violence, it is not also a crime involving dishonesty. However, as noted above, robbery is defined in Alabama law as theft plus force or threat of force. Stated another way, because theft is a crime involving dishonesty, robbery is a crime involving both dishonesty and violence. Dishonesty and violence are not mutually exclusive. Nothing in the fact that robbery is a "crime of violence" negates the fact that robbery also involves dishonesty.

For these reasons, we hold that robbery is a crime involving "dishonesty or false statement." Because evidence prior convictions of crimes involving dishonesty or false statement is automatically admissible for impeachment purposes under Rule 609(a)(2), we hold that evidence of a prior robbery conviction is automatically admissible for impeachment purposes under Rule 609(a)(2).

Conclusion

Based on the foregoing, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

Stuart, C.J., and Main, Bryan, and Mendheim, JJ., concur.

      Section 145.01(9) was substantially rewritten in the 2009 sixth edition of McElroy's Alabama Evidence, listing robbery under the heading "Crimes involving dishonesty or false statement -- illustrative examples," saying it "satis[fies] the broader Huffman interpretation." See discussion infra.


author: MAIN, Justice.

text:
    EX PARTE MONTGOMERY COUNTY BOARD OF EDUCATION
    (In re John Doe, a minor, by and through his mother and next friend S.C. v. Montgomery County Board of Education)
    1170733
    Supreme Court of Alabama.
    August 24, 2018
    James R. Seale and Jordan Speake Jenkins of Hill, Hill, Carter, Franco, Cole & Black, PC, Montgomery, for petitioner.
    Submitted on mandamus petition only.
   MAIN, Justice.

The Montgomery County Board of Education ("the Board") petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to dismiss a lawsuit filed against it on the basis of sovereign immunity. We grant the petition and issue the writ.

I. Facts and Procedural History

On January 7, 2018, John Doe, a minor, by and through his mother S.C., filed the underlying action in the Montgomery Circuit Court against the Board, seeking compensatory damages and punitive damages arising from an alleged assault on Doe by a school employee at the elementary school Doe attended, as a result of which Doe was injured. The complaint asserts a single count of negligence against the Board and other unidentified fictitiously named defendants. Specifically, Doe alleges that the Board breached its duty "to not place him in harm or specifically harm him" and that the Board failed to properly train and supervise the employee allegedly responsible for the assault.

On February 27, 2018, the Board moved to dismiss the action on the ground that the Board is a State agency entitled to State immunity under the provisions of Art. I, § 4, Ala. Const. 1901. The trial court denied the motion, and the Board filed this petition.

II. Standard of Review

" ' "It is well established that mandamus will lie to compel a dismissal of [a] claim that is barred by the doctrine of sovereign immunity." Ex parte Blankenship, 893 So.2d 303, 305 (Ala. 2004).
" ' "A writ of mandamus is a
" ' " 'drastic and extraordinary writ that will 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 Wood, 852 So.2d 705, 708 (Ala. 2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) ).
" '....
" ' " '[I]f an action is an action against the State within the meaning of § 14, such a case "presents a question of subject-matter jurisdiction, which cannot be waived or conferred by consent." ' Haley v. Barbour County, 885 So.2d 783, 788 (Ala. 2004) (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala. 2002) ). 'Therefore, a court's failure to dismiss a case for lack of subject-matter jurisdiction based on sovereign immunity may properly be addressed by a petition for the writ of mandamus.' Ex parte Alabama Dep't of Mental Health & Retardation, 837 So.2d 808, 810-11 (Ala. 2002)."
" ' Ex parte Davis, 930 So.2d 497, 499-500 (Ala. 2005).' "

Ex parte Phenix City Bd. of Educ., 67 So.3d 56, 59 (Ala. 2011) (quoting Ex parte Lawley, 38 So.3d 41, 44-45 (Ala. 2009) ).

III. Analysis

The Board argues that it is entitled to have the underlying action against it dismissed because it is an agency of the State entitled to State immunity under Art. I, § 14 of the Alabama Constitution. The Board is correct.

" ' "County boards of education are not agencies of the counties, but local agencies of the state, charged by the legislature with the task of supervising public education within the counties." ' Board of Sch. Comm'rs of Mobile County [v. Architects Group, Inc.], 752 So.2d [489,] 491 [ (Ala. 1999) ] (quoting Hutt [v. Etowah Cty. Bd. of Educ., 454 So.2d 973, 974 (Ala. 1984) ]. 'Under Ala. Const. of 1901, § 14, the State of Alabama has absolute immunity from lawsuits. This absolute immunity extends to arms or agencies of the state.' Ex parte Tuscaloosa County, 796 So.2d 1100, 1103 (Ala. 2000).
" 'For purposes of § 14 immunity, county boards of education are considered agencies of the State. Louviere v. Mobile County Bd. of Educ., 670 So.2d 873, 877 (Ala. 1995) ("County boards of education, as local agencies of the State, enjoy [ § 14 ] immunity."). Thus, this Court has held that county boards of education are immune from tort actions. See Brown v. Covington County Bd. of Educ., 524 So.2d 623, 625 (Ala. 1988) ; Hutt v. Etowah County Bd. of Educ., 454 So.2d 973, 974 (Ala. 1984).'
" Ex parte Jackson County Bd. of Educ., 4 So.3d 1099, 1102-03 (Ala. 2008)."

Ex parte Hale Cty. Bd. of Educ., 14 So.3d 844, 848 (Ala. 2009). See also Ex parte Jackson Cty. Bd. of Educ., 164 So.3d 532 (Ala. 2014) (holding that county board of education was entitled to sovereign immunity and, thus, that the trial court lacked subject-matter jurisdiction over the action); Ex parte Bessemer City Bd. of Educ., 143 So.3d 726 (Ala. 2013) (holding that a claim against a school board arising from an alleged assault on a student was due to be dismissed on State immunity grounds); Phenix City Bd. of Educ., 67 So.3d at 59-60 (holding that city boards of education, like county boards, are local agencies of the State and enjoy constitutional immunity from tort actions); Ex parte Monroe Cty. Bd. of Educ., 48 So.3d 621, 625 (Ala. 2010) (holding that county board of education "is a local agency of the State that has absolute immunity under Ala. Const. of 1901, § 14").

IV. Conclusion

Because the Board is an entity of the State, it enjoys immunity from Doe's action under § 14 of the Alabama Constitution. Accordingly, the Board has demonstrated a clear legal right to a writ of mandamus directing the trial court to dismiss the lawsuit against it.

PETITION GRANTED; WRIT ISSUED.

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

      The respondents have not made any answer to the Board's petition.


author: THOMPSON, Presiding Judge.

text:
    EX PARTE J.M.
    (In re T.M. and E.M. v. J.M. and B.M.)
    2170615 2170616
    Court of Civil Appeals of Alabama.
    August 17, 2018
    Jeff Gray, Geneva, for petitioner.
    Scott Smith, Dothan, for respondents.
   THOMPSON, Presiding Judge.

On November 20, 2017, T.M. and E.M. ("the paternal grandparents") filed in the Geneva Juvenile Court ("the juvenile court") petitions seeking to have their minor grandchildren, J.W.M. and N.M., declared dependent, to be awarded custody of the children, and to terminate the parental rights of J.M. ("the mother") and B.M. ("the father") to the children. In their petitions, the paternal grandparents alleged that they have had physical custody of the children since October 4, 2014.

J.B. ("the maternal grandmother"), a Florida resident, filed a December 4, 2017, letter in the juvenile court in which she alleged, among other things, that she was the children's adoptive mother. In support of her allegation that she had adopted the children, the maternal grandmother attached to her December 4, 2017, letter an October 27, 2017, adoption judgment of the Polk County, Florida, Circuit Court ("the Florida court").

The mother filed in the juvenile court a letter answering the petitions and an affidavit of substantial hardship. The materials before us indicate that the juvenile-court clerk returned the affidavit of substantial hardship to the mother because it was not properly notarized. The father did not respond to the paternal grandparents' petitions.

The juvenile court conducted an ore tenus hearing on December 20, 2017. Also on December 20, 2017, the juvenile court entered orders finding the children to be dependent, awarding pendente lite custody of the children to the paternal grandparents, and scheduling both a review hearing and a "dispositional" hearing for dates in 2018. In those December 20, 2017, orders, the juvenile court found that the children had been living with the paternal grandfather since 2014 and had been residents of Alabama since 2015 and, therefore, that the children were subject to the jurisdiction of the juvenile court. The mother filed a notice of appeal as to both actions on January 2, 2018. Because the orders of the juvenile court are not final orders that would support an appeal, we have elected to treat the mother's appeal as petitions for a writ of mandamus. Ex parte T.C., 96 So.3d 123, 129 (Ala. 2012) ; Ex parte B.N., 203 So.3d 1234, 1240 (Ala. Civ. App. 2016).

The Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs actions addressing issues of child custody, including dependency actions and actions seeking to terminate parental rights. § 30-3B-102(4), Ala. Code 1975; R.L. v. J.E.R., 69 So.3d 898, 901 (Ala. Civ. App. 2011) ; R.W. v. G.W., 2 So.3d 869, 871 (Ala. Civ. App. 2008). To properly exercise jurisdiction over the paternal grandparents' petitions, the juvenile court was required to comply with the jurisdictional requirements of the UCCJEA. R.S. v. B.C., 248 So. 3d 10 (Ala. Civ. App. 2017).

The materials before us indicate that, in 2014, the maternal grandmother, a resident of Florida, asked the paternal grandparents to take custody of the children. The paternal grandfather testified that the paternal grandparents obtained a temporary custody order from a court in South Carolina, where they lived in 2014. In 2015, before a final order could be entered in South Carolina, the paternal grandparents and the children moved to Alabama. Also in 2015, the maternal grandmother initiated her adoption action in Florida that resulted in the 2017 adoption judgment issued by the Florida court.

At the end of the December 20, 2017, hearing, the juvenile court asked the parties to submit to it the files from the South Carolina court and from the Florida court. The juvenile court stated that it was exercising emergency jurisdiction over the children, and it afforded the parties 30 days to present to it the evidence concerning the other actions pertaining to the children.

Under the UCCJEA, a court of this state may exercise emergency jurisdiction over an action addressing child custody if the child is present in this state and the facts warrant the exercise of that emergency jurisdiction. § 30-3B-204(a), Ala. Code 1975. This court has explained:

"An Alabama circuit or juvenile court may not make any custody determination--neither an initial custody determination nor a determination as to modification of custody--regarding a child unless that court has jurisdiction to make an initial custody determination under the UCCJEA, which jurisdiction typically turns on whether Alabama is the home state of the child. See Ala. Code 1975, § 30-3B-201 and -203 (providing when a court of this state may make an initial custody determination or modify the custody determination of a court of another state). However, in situations in which a child-custody proceeding is pending in another state or a previous child-custody determination exists, an Alabama court may exercise temporary emergency jurisdiction under § 30-3B-204 when a child is present in this state and '[the child has been abandoned or] it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.' § 30-3B-204(a). The temporary emergency jurisdiction that an Alabama court may exercise pursuant to § 30-3B-204 is 'extremely limited,' see M.B.L. [v. G.G.L.], 1 So.3d [1048,] 1051 [ (Ala. Civ. App. (2008) ], and an Alabama court must comply with the manner of exercising that jurisdiction set out in that section. LaRose v. LaRose, 71 So.3d 651, 657 (Ala. Civ. App. 2011)."

J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384-85 (Ala. Civ. App. 2013) (bracketed language added).

Thus, the jurisdiction exercised by the juvenile court in these actions was limited. "A juvenile court with only temporary emergency jurisdiction cannot adjudicate the dependency of a child unless and until it first complies with § 30-3B-204...." G.S. v. R.L., 259 So.3d 677 (Ala. Civ. App. 2018). In G.S. v. R.L., supra, this court held that judgments purporting to find the children at issue in that case dependent and making a custody award based on that finding were void, and this court dismissed the appeal with instructions for the juvenile court in that case to comply with the requirements of § 30-3B-204. See also J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d at 385 ("[A] juvenile court exercising temporary emergency jurisdiction under § 30-3B-204 does not have jurisdiction to adjudicate dependency and award custody by virtue of the limited jurisdiction provided to it."); M.W. v. C.W., 60 So.3d 301, 305 (Ala. Civ. App. 2010) (same).

"[T]emporary emergency jurisdiction did not authorize the juvenile court to conduct the ... dependency proceeding." S.C. v. J.T.C., 47 So.3d 1253, 1257 (Ala. Civ. App. 2010). In these cases, the juvenile court made dependency determinations, which it was without jurisdiction to do in exercising emergency jurisdiction over the children. Therefore, insofar as they contain dependency determinations, the juvenile court's orders are void.

However, in these cases, unlike in G.S. v. R.L., supra, the juvenile court recognized that jurisdictional questions existed, asked the parties to submit additional information to it, and awarded pendente lite custody to the paternal grandparents in order to protect the children while the jurisdictional issues were being considered. Thus, the materials before us and the juvenile court's award of pendente lite custody indicates that the juvenile court intends to comply with § 30-3B-204 before progressing further on the merits of the paternal grandparents' petitions to terminate parental rights. See, e.g., § 30-3B-204(d) ("A court of this state which is exercising jurisdiction pursuant to Sections 30-3B-201 through 30-3B-203, [Ala. Code 1975,] upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.").

We hold that the juvenile court's December 20, 2017, orders, insofar as they determine that the children are dependent are void, and, thus, we dismiss the petitions for a writ of mandamus as they pertain to that aspect of the orders. Ex parte Wynn, 227 So.3d 534, 535 (Ala. Civ. App. 2017). In her brief filed in this court, the mother also argues that the juvenile court erred in finding the children dependent without affording her an appointed attorney. See § 12-15-305(b), Ala. Code 1975 ("In dependency and termination of parental rights cases, the respondent parent ... shall be informed of his or her right to be represented by counsel and, if the juvenile court determines that he or she is indigent, counsel shall be appointed where the respondent parent ... is unable for financial reasons to retain his or her own counsel."). The mother argues that the juvenile court could not find the children dependent without first allowing her to be represented in the juvenile court. See R.H. v. D.N., 5 So.3d 1253, 1254-55 (Ala. Civ. App. 2008) (holding that because an indigent parent is entitled to a court-appointed attorney in a dependency action, the juvenile court had erred in failing to appoint an attorney to represent the mother in that case).

Our resolution of the issue whether the juvenile court had jurisdiction to determine the dependency of the children renders the issue whether the juvenile court erred under the facts of these cases in failing to appoint an attorney to represent the mother before finding the children to be dependent moot, and we deny the mother's petitions for that reason. We note, however, that, moving forward, the juvenile court may rule on any request for the appointment of an attorney the mother might file in that court.

However, assuming the juvenile court determines that it may exercise jurisdiction under the UCCJEA and that the mother has standing, see note 1, supra, if the juvenile court determines the mother to be indigent, she is entitled to have an attorney represent her at a dependency or termination hearing. § 12-15-305(b) ; R.H. v. D.N., supra. The mother has not challenged the award of pendente lite custody to the paternal grandparents, and, therefore, we do not address that aspect of the juvenile court's December 20, 2017, orders.

2170615--PETITION DISMISSED IN PART AND DENIED IN PART AS MOOT.

2170616- PETITION DISMISSED IN PART AND DENIED IN PART AS MOOT.

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

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

      Solely for the purpose of resolving this matter, we treat the mother as having standing to challenge the propriety of the juvenile court's interlocutory orders. "Standing ... turns on 'whether the party has been injured in fact and whether the injury is to a legally protected right.' " State v. Property at 2018 Rainbow Dr., 740 So.2d 1025, 1027 (Ala. 1999) (quoting Romer v. Board of Cty. Comm'rs of the City of Pueblo, 956 P.2d 566, 581 (Colo. 1988) (Kourlis, J., dissenting) ). In support of her submission of the Florida court's adoption judgment, the maternal grandmother submitted evidence to the juvenile court indicating that the mother had consented to the termination of her parental rights. This court has held that when a parent's parental rights to a child have been terminated, that parent does not have standing to challenge a subsequent judgment concerning the custody of the child because that parent "no longer has a 'legally protected right' with regard to the child." E.V.W. v. Jefferson Cty. Dep't of Human Res., 893 So.2d 1212, 1213 (Ala. Civ. App. 2004). As is explained in the body of this opinion, infra, the juvenile court has exercised only emergency jurisdiction over the children until such time as it can obtain sufficient information to determine its jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala. Code 1975. The determination of the issue whether the Florida court's adoption judgment controls or is enforceable will also affect whether the mother may assert rights to the children.

      Although the juvenile court orally mentioned its exercise of emergency jurisdiction during the ore tenus hearing, the juvenile court's December 20, 2017, orders do not expressly state that it was exercising emergency jurisdiction. However, this court will not presume error on the part of the juvenile court, see J.B. v. DeKalb Cty. Dep't of Human Res., 12 So.3d 100, 120 (Ala. Civ. App. 2008), especially where, as here, it is clear that during the ore tenus hearing the juvenile court was considering the jurisdictional implications of the other actions and recognized that it could exercise only emergency jurisdiction over the pending actions.