author: SHAW, Justice.

text:
    EX PARTE Frank S. BUCK and Martha Jane Buck
    (In re: Frank Buck and Martha Buck v. CH Highland, LLC, and City of Birmingham)
    1151011
    Supreme Court of Alabama.
    October 27, 2017
    Donald H. Brockway, Jr., Birmingham, for petitioners.
    John C. Neiman, Jr., Thomas W. Thaggard III, and Will A. Smith of Maynard, Cooper & Gale, P.C., Birmingham; and Walter A. "Tod" Dodgen, Huntsville, for respondent CH Highland, LLC; and Fredric L. Fullerton II, City Attorneys Office, Birmingham, for respondent City of Birmingham.
   SHAW, Justice.

Frank S. Buck and Martha Jane Buck, the plaintiffs in an action below challenging the validity of a rezoning ordinance, petitioned this Court for certiorari review of the decision of the Court of Civil Appeals affirming the trial court's judgment in favor of the defendants, CH Highland, LLC ("Highland"), and the City of Birmingham ("the City") (hereinafter referred to collectively as "the respondents"). Buck v. CH Highland, LLC, 256 So.3d 75 (Ala. Civ. App. 2016). We reverse and remand.

Facts and Procedural History

The Bucks own real property located in the City. Frank operates a law office in a former residential house located on the property. Highland, a real-estate-development company, intends to build a multistory apartment complex ("the project") on property located adjacent to the Bucks' property ("the subject property"). As planned, the project did not conform with the then existing zoning restrictions for the area in which the subject property was located. Thus, on September 8, 2014, Highland submitted a rezoning application to the Zoning Advisory Committee of the Birmingham Planning Commission. Highland requested that the subject property be rezoned from a "B-2 general business district" to a "B-3 community business district" so that it could construct the project.

Subsequently, the Zoning Advisory Committee recommended that the City Council approve a "QB-3 qualified community business district" with certain "Q conditions." The recommended Q conditions included the submission and approval of a site-development plan covering numerous issues, including structure locations and heights, fencing, landscaping, and shielding a parking garage from view.

Highland also submitted a request to the Planning and Zoning Committee of the Birmingham City Council to rezone the subject property from a B-2 district to a B-3 district. It appears that this committee met several times, and Highland's application, as well as the recommendation of the Zoning Advisory Committee on Highland's application, was discussed. It appears that on December 17, 2014, the application was approved "contingent on [a] signed restrictions agreement between the applicant and adjacent property owner." The Bucks contend that the "adjacent property owner" referred to was Temple Beth-El, a Jewish synagogue. Further, like the Zoning Advisory Committee, the Planning and Zoning Committee approved a QB-3 district with the same Q conditions.

Before the application was approved, a "zoning notice" indicating the existence of a proposed rezoning ordinance and notice of a public hearing was published in the Birmingham News on November 21, 2014. The notice stated that the subject property would be rezoned from a B-2 district to a B-3 district. On November 28, 2014, a "synopsis of zoning ordinance" was published, indicating that the City Council would consider the adoption of an ordinance to change the zoning of the subject property from B-2 to B-3. The notices did not mention rezoning the subject property to a QB-3 district or the existence of any Q conditions.

At some point, Highland and Temple Beth-El drafted and signed a "memorandum of understanding" ("the MOU"). The MOU discussed agreements between Highland and Temple Beth-El regarding, among other things, the mitigation of construction noise and the use of an alley, parking lots, and Temple Beth-El property during the construction of the project. Additionally, the MOU included an agreement that any rezoning ordinance regarding the subject property would include Q conditions that would prohibit a list of property uses that would ordinarily be permitted in a B-3 district. Temple Beth-El's representative signed the MOU on December 22, 2014. It appears from the record that the MOU was not delivered to at least some members of the City Council until the night before the December 30 hearing on the rezoning ordinance.

On December 30, 2014, the City Council held a public hearing to consider the proposed rezoning ordinance. The transcript of the hearing indicates that the proposed ordinance was "amended" to include the Q condition suggested by the Zoning Advisory Committee and the Planning and Zoning Committee, as well as a Q condition incorporating the property-use restrictions found in the MOU. The City Council voted to adopt the amended proposed ordinance as Ordinance 1949-G, which rezoned the area in which the subject property was located from a B-2 district to a QB-3 district. Ordinance 1949-G listed two "Q conditions": the requirement to submit a site-development plan, as mentioned in the recommendations of the Zoning Advisory Committee and the Planning and Zoning Committee, and the list of prohibited property uses found in the MOU.

Subsequently, the Bucks sued the City, the mayor, the City Council, Highland, and several fictitiously named defendants, alleging, among other things, that "[t]he actions by the City and its Council, through its Council persons and Mayor, and fictitious parties are violative of applicable statutory, regulatory and the common laws of the state of Alabama." The Bucks sought, among other things, declaratory and injunctive relief. The mayor and the City Council members were subsequently dismissed as defendants, and the Bucks' case proceeded with the City and Highland as defendants.

Highland filed a motion for a summary judgment, which the City joined. Citing Ala. Code 1975, § 11-52-77 and § 11-52-78, which govern publishing notice of proposed zoning ordinances, they argued:

"All required prerequisites for amending the Birmingham Zoning Ordinance were strictly followed by the City Council. ... The proposed rezoning ordinance and notice of public hearing were published in the Birmingham News on November 21, 2014, followed by publication of a synopsis of the proposed ordinance on November 28, 2014."

In response to the motion for a summary judgment, the Bucks disputed whether proper notice had been published:

"The notices were published on November 21, 2014, and November 28, 2014, respectively and gave notice of a change from B-2 to B-3. However, at the public hearing, the noticed change from B-2 to B-3 was amended so as to reflect that it was subject to two Q conditions, one of which was based upon a MOU between the developer [and] an adjoining property owner, which said MOU was not executed until December 22, 2014, and not presented for consideration to the City until the evening of December 29, 2014. The MOU was never presented to the public. The transcript of the council hearing reflects an amended ordinance based upon the MOU, which had not been noticed in accordance with § 11-52-77 and § 11-52-78...."

Ultimately, the trial court entered a summary judgment for the respondents. As to the Bucks' argument that the City failed to properly publish notice of the proposed ordinance, the trial court held:

"The [Bucks] ... argue that the City of Birmingham failed to meet its statutory obligation to publish notice of the proposed ordinance. The City did publish the requisite notice in advance of the City Council's vote, however, and the court agrees with the defendants that additional notice was not required under the particular circumstances here."

The Bucks appealed to this Court, and the appeal was transferred to the Court of Civil Appeals. See Ala. Code 1975, § 12-2-7(6). On appeal in that court, the Bucks challenged the trial court's judgment on several grounds, including whether proper notice of Ordinance 1949-G was published as required by § 11-52-77. The Bucks specifically argued, among other things, that the ordinance as adopted was different from the ordinance as proposed in that it "was subject to two Q conditions" and that notice of the adopted ordinance was not given under §§ 11-52-77 and -78. The Bucks further argued that the "amended" ordinance was required to be published in its "final form." On this issue, the Court of Civil Appeals affirmed the trial court's judgment:

"[T]he Bucks contend that the circuit court erred by concluding that §§ 11-52-77 and 11-52-78 did not require the City to provide the Bucks 'new notice and a new hearing.' Together, §§ 11-52-77 and 11-52-78 provide the notice requirements for the adoption of, changes to, and amendments of zoning ordinances. Our supreme court has held that the statutory 15-day notice requirements contained in § 11-52-77 are mandatory. Kennon & Assocs., Inc. v. Gentry, 492 So.2d 312, 315 (Ala. 1986) ; see also Builders Dev. Co. v. City of Opelika, 360 So.2d 962, 964 (Ala. 1978) ; Alabama Alcoholic Beverage Control Bd. v. City of Birmingham, 253 Ala. 402, 407, 44 So.2d 593, 597 (1950)....
"....
"The circuit court determined that the City had properly published the requisite notice in advance of the city council's vote and that no additional notice of the Q conditions had been required. In City of Mobile v. Cardinal Woods Apartments, Ltd., 727 So.2d 48, 54 (Ala. 1999), our supreme court affirmed the trial court's judgment that had determined that a zoning ordinance was invalid because the notice had failed to apprise the public that the requested rezoning would allow not only specialty shops but also a chain restaurant. The Cardinal Woods court concluded that the notices in that case had 'tended only to "mislead." ' 727 So.2d at 54 (citing 1 E. Zieglar, Jr., Rathkopf's the Law of Zoning and Planning § 10.03 (1992)).
"In this case, the public was not similarly misled. The published notice indicated that rezoning of the district containing the subject property from B-2 to B-3 would be considered. The Bucks do not dispute that that notice was sufficient. Even though no notice was given of the contents of the MOU or that the Q conditions would be required, the published notice apprised interested persons 'how, and for what, to prepare.' Id. The Bucks make no argument that the intended use of the subject property differed significantly because of the addition of the Q conditions. Thus, we conclude that the circuit court did not err by declining to conclude that the City had violated §§ 11-52-77 and 11-52-78."

Buck, 256 So.3d at 82 (footnote omitted).

The Bucks sought certiorari review in this Court, raising numerous challenges to the Court of Civil Appeals' decision. This Court granted certiorari review on a single issue: Whether notice of Ordinance 1949-G was properly published pursuant to § 11-52-77 and § 11-52-78.

Standard of Review

"On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala. 1996). "The law is well established that a de novo standard applies to appellate review of a trial court's summary judgment." Ex parte Patel, 988 So.2d 957, 959 (Ala. 2007).

Discussion

A. Mootness

The respondents have filed a supplemental brief in this Court asserting that, while this case was pending in this Court, Ordinance 1949-G has been repealed and replaced with a new ordinance, Ordinance 1981-G ("the new ordinance"). The new ordinance is virtually identical to Ordinance 1949-G, rezones the subject property from B-2 to QB-3 with the same Q conditions as were in Ordinance 1949-G, and states that it repeals and replaces the prior ordinance. Further, the respondents include a copy of published notices for the new ordinance that indicate the subject property was to be rezoned from B-2 to QB-3 and that set forth the text of the new ordinance, including the Q conditions. According to the respondents, any procedural irregularities in the publication of Ordinance 1949-G are no longer relevant and the new ordinance allows Highland to proceed with the project. Although the parties argue to the contrary, this circumstance raises the issue whether this appeal is now moot.

"This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot." Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala. 1982).

" ' "A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned." ' Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006) (quoting American Fed'n ofState, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958) ). 'The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties.' Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) ). 'A case becomes moot if at any stage there ceases to be an actual controversy between the parties.' Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) ).
"... 'A moot case lacks justiciability.' Crawford, 153 S.W.3d at 501. Thus, '[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.' Case, 939 So.2d at 884 (citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So.2d 326, 330 (Ala. 2004) )."

Chapman v. Gooden, 974 So.2d 972, 983-84 (Ala. 2007).

If Ordinance 1949-G, the subject of this appeal, has in fact been repealed and replaced by the new ordinance, then this appeal is moot, because there no longer exists a justiciable controversy as to the single issue upon which certiorari review was granted. However, the Bucks argue that the new ordinance was also improperly enacted and is also void; thus, they say, it did not repeal Ordinance 1949-G and their challenge to Ordinance 1949-G remains. In fact, they contend that they have filed a new action in the Jefferson Circuit Court challenging the validity of the new ordinance, and they submitted a copy of the complaint they have filed in that new action.

This Court is not in a position, in the present appeal, to determine whether the new ordinance is valid or invalid and whether it did or did not properly repeal and replace Ordinance 1949-G. That issue is pending in another circuit court action, where a proper record and arguments relating to that issue can be developed. Because there remains the possibility that the new ordinance could be held invalid, a holding that this appeal is moot based on the adoption of the new ordinance is premature. Specifically, if we were to dismiss this case as moot, but the Bucks were to prevail in their new action challenging the new ordinance, the issue of the validity of Ordinance 1949-G would remain unresolved, and the Bucks would have lost their ability to maintain their challenge to it in the instant appeal. In other words, at this time it is uncertain whether the new ordinance is valid and moots this case, and we are not in a position to resolve that uncertainty. Given that uncertainty, we are unable to say that our decision in this appeal would not affect the rights of the parties and that the case has therefore been rendered moot.

B. The validity of Ordinance 1949-G

The issue in this appeal, as noted above, is whether the City, in adopting Ordinance 1949-G, complied with the notice and publication requirements of § 11-52-77 and § 11-52-78. Section 11-52-77 states, in particular part:

"No ordinance shall be passed by any municipal corporation under the authority of this article unless and until the municipal governing body has complied with the procedures set forth in either subdivision (1) or subdivision (2) of this section.
"(1) Prior to adoption, the proposed ordinance shall be published in full for one insertion and an additional insertion of a synopsis of the proposed ordinance, one week after the first insertion, which synopsis shall refer to the date and name of the newspaper in which the proposed ordinance was first published; both such insertions shall be at least 15 days in advance of its passage and in a newspaper of general circulation published within the municipality, or, if there is no such newspaper, then by posting the proposed ordinance in four conspicuous places within the municipality, together with a notice stating the time and place that the ordinance is to be considered by the municipal legislative authorities and stating further that at such time and place all persons who desire shall have an opportunity of being heard in opposition to or in favor of such ordinance."

(Emphasis added.) Section 11-52-78 requires:

"Such regulations, restrictions, and boundaries and ordinances passed under the authority of this article may from time to time be amended, supplemented, changed, modified, or repealed.
"The provisions of Section 11-52-77 relative to public hearings and official notices shall apply equally to all changes and amendments."

In the often cited decision of Kennon & Associates, Inc. v. Gentry, 492 So.2d 312 (Ala. 1986), the Court discussed the proper application of §§ 11-52-77 and -78. In Kennon, a municipal ordinance was proposed to amend the municipality's comprehensive zoning ordinance to rezone a property lot. After the proposed rezoning ordinance was adopted, several neighboring property owners challenged it on various grounds, including whether the proper notice requirements were met. 492 So.2d at 314. Specifically, in addition to the statutory notice requirements of § 11-52-77 and § 11-52-78, the municipality's comprehensive zoning ordinance mandated that adjacent property owners be notified by registered mail of pending rezoning actions. 492 So.2d at 315. The trial court invalidated the rezoning ordinance, and the property owner that sought the rezoning ordinance appealed.

This Court noted that it was undisputed that some of the adjacent landowners did not receive the required notice of the rezoning action by registered mail. This Court then generally discussed legal requirements for properly passing a zoning ordinance:

"This Court has held that the statutory 15-day notice requirements contained in § 11-52-74 and § 11-52-77 are mandatory and 'must both be complied with when a city publishes notice of a proposed zoning ordinance or amendment.' Builders Development Co. v. City of Opelika, 360 So.2d [962,] 964 [ (Ala. 1978) ].... This Court has also held that when the legislative body of a city or a planning commission adopts zoning or planning regulations, ordinances, or by-laws, which are 'specifically authorized by the Code, they have the same force and effect as properly enacted statutes.' (Emphasis added.) Lynnwood Property Owners v. Lands Described In Complaint, 359 So.2d 357, 359 (Ala. 1978) ; Boulder Corporation v. Vann, 345 So.2d 272 (Ala. 1977) ; Code of 1975, §§ 11-52-1, et seq."

Kennon, 492 So.2d at 315-16. This Court then discussed treatises on zoning law that restated the proposition that the notice requirements applicable to zoning ordinances must be strictly followed, including requirements that are provided in addition to those imposed by statute. The Court in Kennon then stated:

"In this jurisdiction, we have insisted on strict compliance with procedural requirements contained in statutes and regulations adopted pursuant to the enabling statutes. In Builders Development Co. v. City of Opelika, 360 So.2d at 964-65, this Court held:
" '[ Section] 11-52-74 and § 11-52-77 must both be complied with when a city publishes notice of a proposed zoning ordinance or amendment. Otherwise the ordinance is void. [Citations omitted.]
" '....
" '[Under these statutes], interested parties should have at least fifteen days to prepare for a hearing, not twelve, thirteen, or fourteen.' "

Kennon, 492 So.2d at 317 (alterations in Kennon).

However, the owner of the lot in question, Kennon, argued that "because none of the affected parties was prejudiced by the failure to give the proper notice, strict compliance ought not be required." Kennon, 492 So.2d at 317. This Court disagreed:

"We find Kennon's arguments unpersuasive. In the line of decisions discussed herein, where there had been a failure to strictly follow the procedural requirements applicable to the action sought, especially notice provisions, this Court has invalidated the ordinance passed or the action taken, irrespective of whether any person was prejudiced by the error or omission. Thus, ... there is ample authority for the view that, in adopting or amending a zoning ordinance, mandated procedural steps, especially notice requirements, must be strictly followed."

492 So.2d at 318 (citations omitted). The trial court's judgment invalidating the rezoning ordinance was affirmed.

Although Kennon dealt with the failure to give notice by mail of a proposed rezoning ordinance, in City of Mobile v.Cardinal Woods Apartments, Ltd., 727 So.2d 48 (Ala. 1999), a proposed rezoning ordinance was published as required by § 11-52-77 but was subsequently changed after that publication and before its adoption. That case involved two parcels of land zoned for residential use by the City of Mobile. The proposed rezoning ordinance to change the zones for the parcels to a "B-1 Buffer Business District" and a "B-2 Neighborhood Business District," respectively, contained a list of seven conditions. The published notice stated that the city council "may" consider zoning classifications other than those sought by the rezoning applicant. After the proposed rezoning ordinance was published, the Mobile City Council deleted the seventh provision of the proposed rezoning ordinance, which required compliance with certain "letters of agreement" that limited the proposed use of the parcels-specifically, that the property would be used for retail shops-and added a condition that provided compliance with a different "letters of agreement" that contained no reference to any specific use for the parcels.

After the altered rezoning ordinance was adopted, a neighboring property owner filed suit challenging the rezoning ordinance and alleging that proper notice was not given under §§ 11-52-77 and -78. It was further revealed that the property owner leased both parcels for the construction of a "Roadhouse Grill" restaurant, which, it was alleged, would not have been allowed under the proposed ordinance as published. The trial court invalidated the rezoning ordinance, and the City of Mobile appealed. This Court noted:

" '[T]he purpose of notice statutes is to apprise fairly and sufficiently those persons who may be affected by zoning action so that they may intelligently prepare for the hearing on the matter.' 1 E. Ziegler, Jr., Rathkopf's the Law of Zoning and Planning § 10.03, at 10-15 (1992) (emphasis added). '[N]otice that does not warn of the nature of the proposed amendment is no notice. Otherwise, such a notice, instead of informing, would actually mislead.' Id. § 10.04 (emphasis added). 'One could not advertise a proposed change from residential to commercial and then zone the property industrial, since this would clearly be a misleading notice.' Id. at 10-25.' But where the change of use is clearly specified, details as to non-use restrictions, such as setbacks, or sideyards, cannot be said to be substantial in the sense that people reading the notice would be misled and induced to stay away from the hearing and not present their views.' Id. (Emphasis added.)
" '[I]n adopting or amending a zoning ordinance, mandated procedural steps, especially notice requirements, must be strictly followed.' Kennon & Assocs., Inc. v. Gentry, 492 So.2d 312, 318 (Ala. 1986) (emphasis in original). It is immaterial' whether any person was prejudiced by the error or omission.' Id. (Emphasis in original.)"

Cardinal Woods, 727 So.2d at 54.

On appeal, the City of Mobile argued that the portion of the notice indicating that the city council "may" consider zoning classifications other than that sought by the applicant allowed it to consider zoning and to decide to zone the property for uses other than B-1 and B-2, as provided in the notice. Applying the above authority, the Court stated:

"If this statement means, and the City contends that it does, that the City Council could have considered and decided to zone the [parcels] for industrial use, for example, rather than for the B-1 and B-2 business uses as advertised, then it is patently invalid-it simply does not apprise interested persons as to how, and for what, to prepare. Similarly, use of property for 'small specialty retail shops' differs significantly from use for a Roadhouse Grill restaurant. In other words, it is a difference in use, amounting to more than a mere matter of 'setbacks or sideyards.'
"To be sure, [the owner of the parcels] had the right to seek to rezone the [parcels] for B-2 use, including the Roadhouse Grill restaurant. However, he and his corporation were bound to do so openly and forthrightly. Once they advertised a proposed ordinance and incorporated with the notice the letters of agreement, which set forth specifically the only uses discussed with the neighborhood residents, the City Council was limited to the uses set forth in the letters of agreement. Otherwise, the advertisements were not 'notice' and the resulting ordinance was void.
"That is this case. [The rezoning ordinance] purports to allow the construction of any establishment that could be operated as a B-2 business. However, the September 8 and 15 publications expressly subjected the use of the [parcels] to certain provisos, one of which was 'compliance with the letters of agreement as submitted by the applicant at the [Planning Commission] meeting.' These letters, of course, referred specifically to 'small specialty retail shops.' [The rezoning ordinance] contained no such proviso.
"Additionally, because the September 8 and 15 publications-which purported to authorize [the rezoning ordinance]-referred by incorporation to 'small specialty retail shops,' the publications failed to alert those residents who might have opposed the operation of a restaurant on the [parcels]. Thus, the 'notices' tended only to 'mislead.' "

727 So.2d at 54.

Cardinal Woods holds that the purpose of a notice requirement for a proposed rezoning ordinance is to "fairly and sufficiently" apprise persons who may be impacted by the zoning decision so that they can prepare for the hearing, and it must not "mislead." If a proposed rezoning ordinance is modified after the notice is published, the notice is deficient if the use for the zoned property allowed by the modified ordinance "differ[ed] significantly" from the use allowed in the notice originally published. The opinion suggests that an example of an insignificant change would be the addition of restrictions to the ordinance, such as "non-use restrictions" like "setbacks, or sideyards," which are not "substantial" because people reading the notice would not be "misled and induced to stay away from the hearing and not present their views." In that case, however, the changes to the rezoning ordinance after the notice expanded the use of the parcels; the changes were a difference "amounting to more than a mere matter of 'setbacks or sideyards.' " 727 So.2d at 54.

The respondents contend that, in the instant case, the addition of the Q conditions to Ordinance 1949-G were no different than changes amounting to no more than the "setbacks or sideyards" that Cardinal Woods would have approved. The Bucks, on the other hand, contend that such a rule was rejected in the subsequent decision in Ex parte Bedingfield, 782 So.2d 290 (Ala. 2000). In that case, this Court granted certiorari review of a decision of the Court of Civil Appeals, Bedingfield v. Mooresville Town Council, 782 So.2d 284, 285 (Ala. Civ. App. 1999), that had upheld the trial court's judgment denying a challenge to the validity of a comprehensive zoning ordinance. Notice of the proposed zoning ordinance and a map had been published. In its subsequent consideration of the proposed ordinance, the town council changed the zoning classification of two lots "from residential to business" because, according to the Court of Civil Appeals, the lots had been "erroneously excluded from the business district on the original zoning map." 782 So.2d at 286. After the altered ordinance was adopted, certain plaintiffs, including the owner of the lots, challenged its validity. Specifically, they argued, among other things, that the town had violated §§ 11-52-77 and -78. The trial court held that changes to the proposed comprehensive zoning-ordinance map did not require new notices for changes that were small in relation to a proposed zoning map as a whole.

The Court of Civil Appeals affirmed. This Court granted certiorari review and explained the pertinent issue as whether the Court of Civil Appeals erred in "applying a substantial-compliance analysis to the zoning-ordinance notice requirements of §§ 11-52-77 and 11-52-78" and, therefore, its decision conflicted with Kennon"and its progeny." Ex parte Bedingfield, 782 So.2d at 291. This Court noted the language from Kennon stating that the notice requirement of § 11-52-77 was "mandatory" and must "be complied with" and that, when there has been a failure to "strictly" follow the notice provisions in passing an ordinance, it was invalidated, despite whether any person had been prejudiced. The Court then held:

"The opinion of the Court of Civil Appeals permitting 'substantial compliance' with §§ 11-52-77 and 11-52-78 directly conflicts with Kennon, supra, and its progeny. This Court has required strict compliance with the notice and hearing requirements of § 11-52-77 and that strict compliance requirement extends to § 11-52-78. Kennon, supra, and its progeny. Section 11-52-78 requires the Town Council to comply with the notice and hearing requirements of § 11-52-77 before the Town Council may amend, change, supplement, modify, or repeal the zoning ordinance. Although the error in the proposed zoning ordinance which classified Yarbrough's property as 'residential' rather than 'business' was, without dispute, an honest or clerical error, correcting the error required a change to the proposed ordinance. The Town Council changed the classification of Yarbrough's property from 'residential' to 'business' and then adopted the ordinance without its having been posted in its changed form with notice that it would be considered in that form as required by § 11-52-77. Thus, because the Town Council did not comply with the notice and hearing requirements of § 11-52-77 before it purported to adopt the ordinance with the changed classification of Yarbrough's property from 'residential' to 'business,' the zoning ordinance is invalid for lack of the notice required by § 11-52-77 for the ordinance (in the form purportedly adopted) or for lack of the notice required by § 11-52-78 for the change itself. Kennon, supra. Therefore, the trial court erred in entering summary judgment in favor of the defendants, and the Court of Civil Appeals erred in affirming the judgment of the trial court."

Ex parte Bedingfield, 782 So.2d at 293-94 (some emphasis added).

Although this analysis has several moving parts, it is clear that the Court faulted the town's adoption of the ordinance "without its having been posted in its changed form" and without notice that the ordinance would be "considered" in its new form, which was "required by § 11-52-77." Further, the adoption of the ordinance with a changed classification of certain property was "invalid for lack of the notice required by § 11-52-77 for the ordinance (in the form purportedly adopted)." The Bucks contend that, like the ordinance in Ex parte Bedingfield, the proposed Ordinance 1949-G was changed after the notice was published. The City did not publish the "changed" ordinance, and, thus, under Ex parte Bedingfield, it failed to "strictly comply" with the mandatory notice provisions of § 11-52-77. Under this analysis, we agree that the City's adoption of Ordinance 1949-G did not comply with § 11-52-77.

The respondents argue, on the other hand, that CardinalWoods is authority for the proposition that a city does not need to publish a new notice and hold a new hearing when it adds "details" to a published ordinance but does not add any new potential uses the proposed ordinance originally allowed. Specifically, the respondents contend that, under CardinalWoods, a city gives proper notice when, after publishing the full proposed ordinance and notice of the public hearing, the city later adds details to the ordinance that merely limit some of the uses the published ordinance would have allowed. The respondents contend that the changes to Ordinance 1949-G-the addition of the Q conditions-are in the same nature of changes as adding "non-uses" of the property. They argue that, here, the Q conditions actually deleted potential property uses that would ordinarily be allowed in a B-3 district and do not allow additional or "different" uses. Thus, they say, the Q conditions, under the apparent logic of Cardinal Woods, would not be significant or substantial and would not mislead a person from attending the hearing. We disagree.

The respondents' seek support from Cardinal Woods by implication-the Court in Cardinal Woods quoted a treatise stating that certain alterations might legitimately be made to previously published proposed ordinances. The Court did not actually apply such a rationale in that case-the alterations to the ordinance actually changed the use of the property-but the implication is that, if the changes did not "differ significantly," the Court would have approved. The viability of such an implication cannot be squared with the Court's subsequent decision in Ex parte Bedingfield, which explicitly rejected the notion that "substantial compliance" with § 11-52-77 is permissible. Any implication that can be drawn from Cardinal Woods that alterations are permissible if the altered ordinance did not "differ significantly" from the published ordinance is no different from a rule allowing "substantial compliance" with § 11-52-77.

Additionally, the rule advanced by the respondents-that changes to "non-use," i.e., the addition of restrictions in an already published ordinance, do not require notice-is inconsistent with the idea that the notices should "fairly and sufficiently" apprise the public of the content of a city's proposed zoning action. Although the Cardinal Woods decision tacitly approved changes to details such as "setbacks" and "sideyards," the changes to the published ordinance in the instant case were of a much different magnitude: the Q condition incorporated from the MOU changed the zoning district from one that would allow 37 possible uses of property in the district to one that would allow only 9. What resulted was a radically different B-3 district from that which the public was told the City intended to create. Those changes were never disclosed to the public before the hearing or even to the City Council until literally the night before the hearing. Thus, even if this Court were to accept such a rule from Cardinal Woods, it would not apply in this case.

Moreover, the idea that no notice is needed for changes that add restrictions to zoning districts seems to be premised on the idea that the public would not be interested in such changes, not want or need notice of them, and thus would not want to attend a public hearing discussing such changes. However, this appears to embrace the notion that the public would not be prejudiced if such changes were made without its knowledge because those changes would not negatively impact the public. That premise is directly rejected by our caselaw, above, holding that it is immaterial whether any person is prejudiced by the failure to comply with the notice requirements regarding zoning ordinances. Ex parte Bedington, supra ; Cardinal Woods, supra ; and Kennon, supra. Further, that premise is based on speculation; members of the public may very well be interested when previously undisclosed restrictions are added to zoning ordinances.

Finally, and most importantly, the plain language of § 11-52-77 requires that the ordinance ultimately adopted be the same as the proposed ordinance that was published. The Code section states: "Prior to adoption, the proposed ordinance shall be published in full ...." The ordinance that is adopted is to be the proposed ordinance that was, prior to adoption, "published in full." In this case, the proposed ordinance that was published in full was not the ordinance that was adopted; instead, the proposed ordinance that was published was later amended, and the amended ordinance was adopted. To hold that only a proposed ordinance need be published, but something else, whether an ordinance that is insignificantly different from the proposed ordinance or an ordinance that is radically different, could be adopted, is contrary to the plain language of § 11-52-77.

In the instant case, the proposed rezoning ordinance that was published merely indicated to the public that there would be a zoning change from a B-2 district to a B-3 district. Ordinance 1949-G does not create a B-3 district; instead, it creates a district of a substantially smaller range of uses than what was otherwise disclosed to the public in the notice. Even if this Court were to reject the long-standing rule that, to invalidate an ordinance, it is unnecessary for the public to be prejudiced by the City's failure to publish the ordinance, we cannot presume that no prejudice occurred in this case.

Conclusion

The decision of the Court of Civil Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Parker and Sellers, JJ., dissent.

Parker, J., concurs.

I respectfully dissent. Because a new zoning ordinance has superseded the ordinance at issue in this appeal, there is no longer a justiciable controversy. The new ordinance rendered this appeal moot. I would quash the writ of certiorari.

      According to the respondents, the City's zoning ordinance allows certain restrictions on potential property uses in districts zoned as B-3. These are called "Q conditions."

      Neither the materials submitted by the respondents regarding the passage of the new ordinance nor the materials submitted by the Bucks disclosing their suit challenging its validity are contained in the record in this appeal.

      Alabama Code 1975, § 11-52-74, which has since been repealed, also provided that zoning ordinances be published before passage. See generally Builders Dev. Co. v. City ofOpelika, 360 So.2d 962 (Ala. 1978), for a discussion of the joint application of §§ 11-52-74, -77, and -78.

      The respondents contend that Ex parte Bedingfield should not be followed because, they say, it misapplied § 11-52-78. Specifically, that decision appears to hold that § 11-52-78 requires an amendment to a proposed ordinance be published under § 11-52-77. Section 11-52-78, however, provides that zoning ordinances that have been "passed" may be amended and, when that occurs, the same notice provisions of § 11-52-77 apply to that amendment. It does not speak to whether notice must be given when a proposed ordinance is amended. Further, § 11-52-78 had no application in Ex parte Bedingfield, because the ordinance at issue in that case was a comprehensive zoning ordinance that was being adopted in the first place, and was not an amendment or change to an existing (previously adopted) zoning ordinance. This interpretation of § 11-52-78 has been repeated in subsequent lower-court decisions. Speakman v. City of Cullman, 829 So.2d 176, 180 (Ala. Civ. App. 2002), and Town of Stevenson v. Selby, 839 So.2d 647, 649 (Ala. Civ. App. 2001). However, although this interpretation is one of the arguments advanced by the Bucks, we do not apply it in this case.

      The respondents contend that if this Court "discards the Cardinal Woods framework," it should do so only on a prospective basis, because they relied on it in this case. However, Ex parte Bedingfield clearly called into question the respondents' interpretation of Cardinal Woods.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Frank BUCK and Martha Buck v. CH HIGHLAND, LLC, and City of Birmingham
    2150220
    Court of Civil Appeals of Alabama.
    December 8, 2017
    On Remand from the Alabama Supreme Court
   THOMAS, Judge.

This court's prior judgment has been reversed and the cause remanded by the Alabama Supreme Court. Ex parte Buck, 256 So.3d 84, ---- (Ala. 2017). In compliance with our supreme court's opinion, we reverse the August 28, 2015, summary judgment of the Jefferson Circuit Court, entered in favor of CH Highland, LLC, and the City of Birmingham, and we remand the cause for further proceedings consistent with our supreme court's opinion.

REVERSED AND REMANDED.

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


author: PITTMAN, Judge.

text:
    EX PARTE ALABAMA PUBLIC CHARTER SCHOOL COMMISSION
    (In re Birmingham Board of Education v. Alabama Public Charter School Commission et al.)
    2170150
    Court of Civil Appeals of Alabama.
    January 5, 2018
    Steve Marshall, atty. gen., and Mary Goldthwaite, asst. atty. gen., for petitioner.
    Afrika C. Parchman, gen. counsel, Birmingham Board of Education, Birmingham; and Frederic A. Bolling of The Bolling Law Firm, LLC, Birmingham, for respondent.
   PITTMAN, Judge.

This mandamus proceeding stems from a civil action brought in the Jefferson Circuit Court by the Birmingham Board of Education ("the Board") against the Alabama Public Charter School Commission ("the Commission"), and its individual members, arising out of the Commission's order approving-contrary to a previous decision by the Board-an application on the part of "STAR Academy" to operate a public charter school in Birmingham. Because we agree with the Commission's view that the circuit court lacked jurisdiction to consider the Board's action, we grant the petition and issue the writ.

Legal Background

In 2015, the legislature enacted Ala. Acts 2015, Act No. 2015-3, the "Alabama School Choice and Student Opportunity Act" ("the ASCSOA"), which has since been codified at Ala. Code 1975, § 16-6F-1 et seq. Generally speaking, the ASCSOA, for the first time, established state authority for the creation of "public charter schools," which, unlike "non-charter public schools" that are "under the direct management, governance, and control of a local school board or the state," are governed by "independent governing board[s]" and exercise "autonomy over ... decisions concerning finance, personnel, scheduling, curriculum, instruction, and procurement." Compare Ala. Code 1975, § 16-6F-4(14), with Ala. Code 1975, § 16-6F-4(16), Ala. Code 1975. The ASCSOA provides, however, that a public charter school "shall not be established in this state" unless duly authorized by either (a) "[a] local school board, for chartering of schools within the boundaries of the school system under its jurisdiction," if such a local school board registers itself as an "authorizer" under the ASCSOA, or (b) the Commission. Ala. Code 1975, § 16-6F-6(a). The ASCSOA further provides that "[a] decision made by a local school board shall be subject to appeal" by an aggrieved applicant to the Commission if that applicant's application is denied by the pertinent local school board; the Commission, in turn, is statutorily permitted under the ASCSOA "to overrule the decision of a local school board and authorize a public charter school" under certain specified circumstances. Ala. Code 1975, § 16-6F-6(a)(4) and (c)(12).

Curiously, although the ASCSOA clearly provides for administrative appellate review of decisions of local school boards by the Commission, which is identified therein as "an independent state entity" ( Ala. Code 1975, § 16-6F-6(c)(1) ), the ASCSOA does not expressly provide for judicial review of decisions of the Commission authorizing the establishment of a public charter school notwithstanding the prior denial of authority on the part of a local school board. However, the Alabama Administrative Procedure Act ("the AAPA"), Ala. Code 1975, § 41-22-1 et seq., sets forth "a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public," Ala. Code 1975, § 41-22-2(a). Under the AAPA, administrative proceedings pertinent to "the grant, denial, revocation, suspension, or renewal of" a "license"-which term encompasses "any agency franchise, permit, certificate, approval, registration, charter, or similar form of permission required by law," Ala. Code 1975, § 41-22-3(4) -are governed by the provisions of the AAPA governing "contested cases." See Ala. Code 1975, § 41-22-19(a). Persons who are "aggrieved by a final decision in a contested case" are entitled to judicial review under the auspices of the AAPA. Ala. Code 1975, § 41-22-20(a). However, the AAPA sets forth two procedural prerequisites to securing judicial review:

"Under the AAPA, a notice of appeal or review is to be filed with the rendering agency 'within 30 days after the receipt of the notice or other service of the final decision of the agency' or, if administrative rehearing is sought, within 30 days after the decision on the application for rehearing; in turn, an appealing party must file a petition for judicial review in the reviewing court within 30 days after filing the notice of appeal or review with the rendering agency. Ala. Code 1975, § 41-22-20(d). 'Appeals from decisions of administrative agencies are statutory, and the time periods provided for the filing of notice of appeals and petitions must be strictly observed,' on pain of dismissal. Eitzen v. Medical Licensure Comm'n of Alabama, 709 So.2d 1239, 1240 (Ala. Civ. App. 1998)."

Brunson v. Alabama State Bd. of Med. Exam'rs, 69 So.3d 913, 914-15 (Ala. Civ. App. 2011) ; accord Ala. Code 1975, § 41-22-20(b) ("All proceedings for review may be instituted by filing of notice of appeal or review ... with the agency ....").

Factual Background

The Commission's mandamus petition, the Board's answer, and the exhibits to those filings indicate the following undisputed facts. STAR Academy submitted an application to the Board requesting authority to operate a public charter school, but, on January 24, 2017, the Board denied that application. STAR Academy then appealed from that denial to the Commission, which held an open community hearing at which the public was permitted to comment on the matter. According to the Board's answer, the Commission voted to overrule the Board's decision and to approve STAR Academy's application to operate a public charter school in Birmingham on May 2, 2017, and notified the Board of that vote by telephone.

On June 1, 2017, the Board initiated a civil action in the circuit court in which the Board sought declaratory and injunctive relief against the Commission and its individual members, including the setting aside of the Commission's oral approval of the application of STAR Academy. Subsequently, on June 27, 2017, the Commission entered a final order, in the form of a resolution, "overrul[ing] the decision of the ... Board ... and ... approv[ing] the application of" STAR Academy based upon specified findings of fact and conclusions of law. The Commission then filed, on July 12, 2017, a motion to dismiss the Board's action in the circuit court, asserting, among other things, that the Board's action was governed by the AAPA and that the Board had improperly sought judicial review while the cause was not ripe for such review, citing Huntsville Housing Authority v. State Licensing Board for General Contractors, 179 So.3d 146 (Ala. Civ. App. 2014), in which this court held that a circuit court does not acquire jurisdiction under the AAPA to review the actions of an administrative agency in the absence of a final, written order under Ala. Code 1975, § 41-22-16. After a hearing, the circuit court entered an order on August 3, 2017, determining that the Board's action seeking to reverse the Commission's authorization of STAR Academy to operate a public charter school was governed by the AAPA, that the Commission was an "agency" under the AAPA, and that the Board was a "person" under the AAPA. The circuit court further observed that the Board had been served with notice of the Commission's final order on July 3, 2017; purported to extend the time for the Board to file a "proper petition" for judicial review under the AAPA until September 1, 2017; and ordered that the individual members of the Commission would be dismissed as parties. Neither party sought review by this court of the August 4, 2017, order of the circuit court within the presumptive time limits set forth in Rule 21(a)(3), Ala. R. App. P.

After the Board had filed an amended complaint on September 1, 2017, that, among other things, expressly invoked the AAPA as a basis for relief, the Commission filed a second motion to dismiss in which the Commission relied upon the Board's failure to have filed a timely notice of appeal under the AAPA with the Commission. The Board responded in opposition to the Commission's motion, asserting that the Commission had had actual notice of the Board's intent to seek judicial review and that the Commission had itself been guilty in its appellate-review proceedings of omissions contrary to the requirements of the AAPA. On October 12, 2017, the circuit court entered an order denying the Commission's second motion to dismiss, after which the Commission timely filed its mandamus petition in this court.

Analysis

The Commission correctly notes that a party obtains judicial review in a circuit court of a final decision of a state agency, such as the Commission, reached in a contested case by both initially filing a notice of appeal within 30 days after the final decision of the agency and by filing, within 30 days after the filing of the notice of appeal (or any additional time afforded by the pertinent circuit court), a petition for judicial review of that decision. In this case, the Board initially filed in the circuit court a complaint that sought declaratory and injunctive relief with respect to an alleged May 2, 2017, communication by the Commission of its vote on STAR Academy's appeal; however, as Huntsville Housing Authority notes, when "there is no written final decision within the meaning of the AAPA in [a] case, there is nothing for [an allegedly aggrieved party] to appeal from to invest the circuit court with subject-matter jurisdiction." 179 So.3d at 156. Unlike in Huntsville Housing Authority, however, the Commission followed its oral announcement with a written resolution in compliance with the form requirements set forth in § 41-22-16 ; that order was entered on June 27, 2017, and the Board was notified of that order on July 3, 2017.

From that notification date, the Board had 30 days (or until August 2, 2017) to file a notice of appeal in conformity with subsections (b) and (d) of § 41-22-20, and an additional 30 days thereafter (or until September 1, 2017) to file a petition for judicial review in an appropriate circuit court. The Board, after the circuit court rendered its August 3, 2017, order, ultimately complied with the requirement under the AAPA to file a timely judicial-review petition; however, there is no indication in any of the parties' filings in this court that, between July 3 and August 2, 2017, the Board filed any notice of appeal. Further, the Commission first raised the applicability of the AAPA to the Board's efforts to overturn the Commission's decision regarding STAR Academy's application for authority to operate a public charter school in its first motion to dismiss filed on July 12, 2017, a full three weeks in advance of the expiration of the period afforded for filing a notice of appeal with the Commission under the AAPA, and there is no indication that the Commission or the circuit court made any representations to the Board that such a filing would not be necessary in order for the Board to preserve its rights to seek review of the action of the Commission on STAR Academy's application.

The circuit court, in its August 4, 2017, order, correctly determined that the AAPA applied to the Board's action and properly recognized that the AAPA required the timely filing of a petition for judicial review from a final agency order, but that court did not take note of the additional jurisdictional requirement that a notice of appeal be filed within 30 days after receipt of notice of a final agency order. Moreover, to the extent that Ex parte Alabama State Personnel Board, 90 So.3d 766, 769-70 (Ala. Civ. App. 2012), suggests that a circuit court might have authority under the AAPA to enlarge the time for filing a notice of appeal with an agency (as opposed to the time for filing a petition for judicial review with that court) when such an enlargement is requested, we note that, as in that case, there is no indication in the parties' filings in this court that the Board sought or was granted leave to file a notice of appeal with the Commission out of time.

Because, "under § 41-22-20(d), a circuit court can acquire appellate jurisdiction over a final state-agency decision only if the appellant initially filed a notice of appeal with the agency within 30 days of the appellant's receipt of the agency's final decision," Ex parte Alabama State Pers. Bd., 90 So.3d at 770, and the respondent Board in this case did not do so, we agree with the Commission that the circuit court acted outside its discretion in denying the Commission's second motion to dismiss. Accordingly, the Commission's petition is granted, and the circuit court is directed to set aside its October 12, 2017, order and to enter a new order dismissing the Board's action.

PETITION GRANTED; WRIT ISSUED.

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

      To the extent that the Board's answer to the Commission's mandamus petition seeks to impugn the circuit court's conclusion that the AAPA applies to its action seeking review of the Commission's decision, based upon the Board's contention that it is not properly classified as a "person" under the AAPA or that the Commission's review process otherwise violated the AAPA in various respects, "we would simply note that 'there is no mechanism in Rule 21 that would allow a respondent to file a "cross-petition" after the expiration of the presumptively reasonable time for seeking review by a petition for an extraordinary writ.' " Ex parte C.P., 253 So.3d 401, 403 (Ala. Civ. App. 2017) (quoting Ex parte Siemag, Inc., 53 So.3d 974, 977 (Ala. Civ. App. 2010) ). That is not to say, however, that this court would be inclined to accept the Board's argument that it is an "agency" under the AAPA. See Board of Sch. Comm'rs of Mobile Cty. v. Biggs, 939 So.2d 942, 946-47 (Ala. Civ. App. 2006) (holding to the contrary).

      That absence of misleading representations warrants the rejection of the Board's contention that the Commission is somehow equitably estopped to rely upon the time limitations set forth in the AAPA. See Paturu v. Medical Licensure Comm'n of Alabama, 981 So.2d 1122, 1123-24 (Ala. Civ. App. 2007) (expressly distinguishing East Colbert Store, Inc. v. Alabama Alcoholic Beverage Control Bd., 661 So.2d 757 (Ala. Civ. App. 1994), upon which the Board relies in its answer to the mandamus petition).

      We note that there is authority for the proposition that an aggrieved party who desires judicial review of an agency's final order may satisfy both the notice and petition requirements by serving upon an agency, within 30 days after the agency has issued its final order, a copy of a petition for judicial review that has been filed in an appropriate venue, see Eley v. Medical Licensure Comm'n of Alabama, 904 So.2d 269, 275-76 (Ala. Civ. App. 2003) ; however, the parties' filings in this court reflect no attempt on the part of the Board between July 3 (the date the Board received a copy of the Commission's final order) and August 2 (30 days thereafter) to serve or file any notice or pleading that would trigger the holding in Eley.


author: MOORE, Judge.

text:
    Jerry K. MCCULLOUGH v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY
    2160497
    Court of Civil Appeals of Alabama.
    January 12, 2018 Rehearing Denied January 12, 2018
    Jerry K. McCullough, Athens, pro se.
    De Martenson and Michelle K. Pieroni of Huie, Fernambucq & Stewart LLP, Birmingham, for appellee.
    On Application for Rehearing
   MOORE, Judge.

This court's opinion of October 27, 2017, is withdrawn, and the following is substituted therefor.

Jerry K. McCullough appeals from a summary judgment entered by the Limestone Circuit Court ("the trial court") in favor of Allstate Property and Casualty Insurance Company ("Allstate"). We affirm the judgment in part and reverse it in part.

Facts and Procedural History

In 2011, Allstate issued a policy of automobile insurance ("the policy") to McCullough, insuring, among other vehicles, his 2002 Dodge Ram 1500 pickup truck ("the truck"). McCullough loaned the truck to an acquaintance, who returned it to McCullough in September 2012 in a damaged condition. In January 2013, McCullough filed a claim on the policy. After an Allstate adjuster inspected the truck, finding multiple points of damage, Allstate took the position that the truck had been damaged in more than one accident. Allstate advised McCullough that it would treat his claim as involving multiple different claims, each of which would be subject to the policy deductible of $250. McCullough objected, contending that the damage had resulted from one accident for which only one deductible should be applied. Based on that disagreement, McCullough filed a lawsuit against Allstate in the United States District Court for the Northern District of Alabama ("the federal lawsuit") in March 2013.

On July 16, 2013, McCullough and Allstate tentatively agreed to settle the federal lawsuit for $8,000. McCullough subsequently learned that Allstate had reported to LexisNexis Comprehensive Loss Underwriting Exchange ("CLUE") and Verisk Analytics Automobile Property Loss Underwriting Service ("A-PLUS") that it had opened multiple claims regarding the damage to the truck. Expressing concern that the reports would inflate his future automobile-insurance costs, McCullough informed Allstate's attorney that he would not settle the federal lawsuit unless Allstate arranged to have the reports corrected to reflect that he was making only one insurance claim with a date of loss of September 3, 2012. McCullough also informed Allstate's attorney that he did not consider the $8,000 to be a payment on the claim, and he wanted Allstate either to report to CLUE and A-PLUS that it had paid nothing on the claim or to delete its reports altogether. According to McCullough, on August 2, 2013, Allstate's attorney sent McCullough an e-mail message indicating that Allstate had reported to CLUE that it had paid nothing on the claim.

Later on August 2, 2013, McCullough executed a "Release and Settlement Agreement" ("the release"). The pertinent terms of the release were as follows:

"For and in consideration of the payment to [McCullough], the sum of EIGHT THOUSAND AND NO/100 DOLLARS ($8,000.00), and other good and valuable consideration, [McCullough] has released and discharged, [Allstate], its owners, officers, directors, stockholders, employees, agents, attorneys, representatives, subsidiaries, affiliated companies, parent companies, successors, and assigns, and all others, of and from any and all actions, causes of action, choses in action, rights of recovery, theories of recovery, and claims or demands for damages, costs, including, but not limited to, claims for insurance policy benefits and 'bad faith,' as well as damage claims seeking policy benefits, property damage, mental anguish damages, or punitive damages, or any other thing whatsoever on account of, or in any way arising out of, the claims and matters described in [the federal lawsuit].
"....
"[McCullough] agrees, understands and acknowledges that acceptance of the payment sum pursuant to this settlement agreement is a full, complete, final and binding compromise of matters involving disputed issues regardless of whether too much or too little may have been paid. As part of the bargained-for consideration for this Release ..., Allstate agrees to put forth its best effort to revise its reporting to [CLUE], and/or any other Index Bureau, to reflect that there was only one occurrence giving rise to the claims made the basis of this lawsuit, and only one date of loss, i.e., September 3, 2012.
"....
"This Settlement Agreement contains the entire agreement between [McCullough] and the released parties with regard to the matters set forth herein. There are no understandings or agreements, verbal or otherwise, between the parties except as expressly set forth."

Based on the release, the federal lawsuit was dismissed with prejudice. By September 8, 2013, McCullough informed Allstate's attorney in an e-mail message that he was satisfied from correspondence he had received from CLUE and A-PLUS that the claim reports had been deleted.

In November 2014, McCullough applied for automobile insurance with a different insurer. McCullough learned that, in October 2013, Allstate had reported to CLUE and A-PLUS that it had paid $8,000 to McCullough on the September 3, 2012, claim. McCullough disputed the reports. CLUE eventually deleted the claim report after Allstate did not respond to its inquiries. A-PLUS, on the other hand, maintained the claim report based on its correspondence with Allstate, which had confirmed that it had reported paying $8,000 on the claim. McCullough thereafter informed Allstate on multiple occasions that he disputed the A-PLUS report, but Allstate maintained its position that it had validly reported the $8,000 payment.

McCullough filed a complaint against Allstate in the trial court on August 17, 2015, seeking equitable relief and damages for "breach of settlement agreement," bad faith, negligence, fraudulent misrepresentation, violations of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., fraudulent inducement, defamation, harassment, and invasion of privacy. Allstate filed a timely answer, asserting multiple affirmative defenses.

On November 4, 2015, Allstate moved for a summary judgment, asserting that all of McCullough's claims arose out of the same matters set forth and settled in the federal lawsuit; that McCullough's claims were barred by waiver, estoppel, accord and satisfaction, and release; that "any discussions or e-mails leading up to the consummation of the final settlement agreement are merged into the Release which specifically states that it is the 'entire agreement between [McCullough] and [Allstate] with regard to the matters set forth herein' "; and that Allstate had complied with the terms of the release. Allstate submitted the affidavit of Heath Harmon, the "Casualty Claims Service Leader" for Allstate, in support of its motion, pursuant to Rule 56(c), Ala. R. Civ. P.

On November 7, 2015, McCullough filed a motion to compel Allstate to produce discovery and requested that the trial court impose discovery sanctions on Allstate. On November 19, 2015, McCullough filed a response to the motion for a summary judgment and a motion for a partial summary judgment on his claims alleging "breach of settlement agreement," negligence, fraudulent misrepresentation, and fraudulent inducement. He filed, pursuant to Rule 56(c), his own affidavit and other evidentiary materials in support of the response and motion. That same day, he also filed an amendment to his motion to compel discovery and to impose discovery sanctions. On November 20, 2015, Allstate responded to McCullough's motion to compel discovery and for discovery sanctions. On November 30, 2015, McCullough filed an addendum to his response to Allstate's summary-judgment motion and to his motion for a partial summary judgment. That same day, Allstate responded to McCullough's amendment to his motion to compel discovery and for discovery sanctions.

On December 8, 2015, Allstate filed a reply to McCullough's response to Allstate's summary-judgment motion, as well as a motion to strike portions of McCullough's Rule 56(c) affidavit. On December 11, 2015, McCullough filed an addendum to his amendment to his motion to compel discovery and to impose discovery sanctions.

On December 14, 2015, McCullough filed a motion for a judgment declaring that "the purpose of the $8,000 paid to [McCullough] by Allstate was to purchase his agreement to dismiss the [federal] lawsuit." On December 18, 2015, Allstate responded to that motion.

On December 21, 2015, McCullough filed an amendment to his motion for a partial summary judgment. On December 28, 2015, McCullough filed a motion to compel Allstate to produce the documents he had requested in a subpoena; as an exhibit to that motion, he attached his own affidavit, which was filed pursuant to Rule 56(f), Ala. R. Civ. P. On January 6, 2016, McCullough filed a response to the motion to strike portions of his Rule 56(c) affidavit and moved to strike portions of Harmon's Rule 56(c) affidavit.

After the trial court heard oral argument, the trial court granted Allstate's motion for a summary judgment on February 24, 2016. McCullough timely appealed to this court. We transferred the appeal to our supreme court for lack of subject-matter jurisdiction, and our supreme court transferred the appeal back to this court, pursuant to Ala. Code 1975, § 12-2-7(6). McCullough v. Allstate Prop. & Cas. Ins. Co., 219 So.3d 658, 659 (Ala. Civ. App. 2016). This court determined that the appeal had been taken from a nonfinal judgment because the judgment did not dispose of McCullough's motion for a declaratory judgment, which this court interpreted as being an amended complaint. McCullough, 219 So.3d at 659-660. Therefore, this court dismissed the appeal. Id. at 660. The certificate of judgment was issued by this court on September 28, 2016.

Subsequently, Allstate renewed its motion for a summary judgment and amended its motion to also request a summary judgment on McCullough's amended complaint for declaratory relief. Allstate also filed an objection to McCullough's motion to compel discovery, arguing that none of the discovery sought was relevant to the issue presented in its summary-judgment motion, specifically, whether the parties had signed a valid release waiving the claims set forth in this action. Allstate subsequently moved to strike certain interrogatories that McCullough had propounded to Allstate's attorney and moved for a protective order.

On March 3, 2017, the trial court entered a judgment denying McCullough's motion to compel discovery, granting Allstate's motion to strike McCullough's interrogatories and its motion for a protective order, granting Allstate's motion to strike portions of McCullough's Rule 56(c) affidavit, denying McCullough's motion to strike portions of Harmon's Rule 56(c) affidavit, denying McCullough's motion, as amended, for a partial summary judgment, and granting Allstate's summary-judgment motion with regard to McCullough's request for declaratory relief, thereby rendering a summary judgment in favor of Allstate on all of McCullough's claims. On March 31, 2017, McCullough filed his notice of appeal. This court transferred the appeal to the supreme court for lack of subject-matter jurisdiction; that court subsequently transferred the appeal back to this court, pursuant to § 12-2-7(6).

Standards of Review

" 'We review this case de novo, applying the oft-stated principles governing appellate review of a trial court's grant or denial of a summary judgment motion:
" ' "We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Once a party moving for a summary judgment establishes that no genuine issue of material facts exists, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. 'Substantial evidence' is 'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw." '
" American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786, 790 (Ala. 2002) (quoting Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala. 2000) (citations omitted) )."

General Motors Corp. v. Kilgore, 853 So.2d 171, 173 (Ala. 2002).

With regard to the discovery issues, our supreme court has stated:

" 'It is well settled that the Rules on deposition and discovery are to be broadly and liberally construed. Cole [v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975) ]. Rule 26(c), [Ala. R. Civ. P.,] recognizes, however, that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party. See Campbell v. Eastland, 307 F.2d 478 (5th Cir. 1962) ; and DeLong Corp. v. Lucas, 138 F.Supp. [805,] 806 (S.D.N.Y. 1956). The Rule does not allow an arbitrary limit on discovery; instead, it vests the trial court with judicial discretion in the discovery process. The question on review, then, becomes one of whether, under all the circumstances, the court has abused this discretion. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala. 1976). An appellate court may not decide whether it would, in the first instance, have permitted the prayed for discovery. Furthermore, it is unusual to find abuse of discretion in these matters.
Swanner v. United States, 406 F.2d 716 (5th Cir. 1969) ; Tiedman v. American Pigment Corp., 253 F.2d 803 (4th Cir. 1958) ; Ex parte Alabama Power Co., 280 Ala. 586, 196 So.2d 702 (1967) ; and 35A C.J.S. Federal Civil Procedure §§ 532, 592.' (Emphasis added.)"

Ex parte Old Mountain Props., Ltd., 415 So.2d 1048, 1052-53 (Ala. 1982) (opinion on application for rehearing) (quoting Assured Inv'rs Life Ins. Co. v. National Union Assocs., Inc., 362 So.2d 228, 231-32 (Ala. 1978) ).

Discussion

I.

On appeal, McCullough argues that the trial court erred in granting Allstate's motion for a summary judgment on his claims alleging fraudulent inducement and fraudulent misrepresentation. We note that Allstate's motion for a summary judgment did not address the merits of McCullough's allegations of fraudulent inducement or fraudulent misrepresentation. Instead, Allstate simply argued that McCullough's claims were barred by the language of the release and that McCullough could not prove his claims outside the four corners of the release-i.e., based on communications or agreements not reflected in the release-due to the merger clause in the release. McCullough argues, though, that he should be permitted to present parol evidence to prove that the release was procured by fraud despite the "merger" clause in the release.

Our supreme court has explained:

"[T]he law in this state renders an integration, or merger, clause ineffective to bar parol evidence of fraud in the inducement or procurement of a contract. Other courts and general authorities have acknowledged that this rule is well established. See 3 S. Williston, Williston on Contracts §§ 811-811A (3d ed. 1961); Restatement of Contracts § 573 (1932) ; 3 A. Corbin, Corbin on Contracts § 578, p. 405, n.42 (3d ed. 1960 and 1992 Supp.) (noting that a merger clause 'does not prevent proof of fraudulent representations by a party to the contract, or of illegality, accident, or mistake' and further noting that '[s]uch evidence may directly contradict the writing; but at the same time it shows the whole writing to be void or voidable, including the statement by which representations and mistakes are denied'); id. § 580, p. 431, n.65 (noting that 'it is in no case denied that oral testimony is admissible to prove fraud'). See also 37 Am. Jur. 2d, Fraud and Deceit § 453 (1968) (noting that '[t]he general rule that parol or extrinsic evidence is admissible to prove that a written contract was procured by fraud ordinarily applies ... in spite of special provisions in the contract which purport to limit the application of parol evidence'). In Downs v. Wallace, [622 So.2d 337 (Ala. 1993),] this Court noted that such a holding is required: 'To hold otherwise is to encourage deliberate fraud.' 622 So.2d at 342."

Environmental Sys., Inc. v. Rexham Corp., 624 So.2d 1379, 1383 (Ala. 1993) ; see also Downs v. Wallace, 622 So.2d 337, 342 (Ala. 1993) (holding that "when the agreement has been induced by intentional fraud the mere presence of an integration clause in the written instrument does not, as a matter of law, insulate the guilty party").

Based on the foregoing, we conclude that Allstate was incorrect in its argument that McCullough's claims alleging fraudulent inducement and fraudulent misrepresentation were barred as a matter of law by the language of the release. Because all of Allstate's arguments in its summary-judgment motion are contingent on the release barring McCullough's claims, Allstate failed to meet its burden of showing its entitlement to a summary judgment on the issues of fraudulent inducement and fraudulent misrepresentation, and, therefore, Allstate's summary-judgment motion was due to be denied as to those claims. Kilgore, 853 So.2d at 173.

We note that McCullough has presented no argument complying with Rule 28(a)(10), Ala. R. App. P., regarding the merits of the summary judgment as to his remaining claims; therefore, we will not address the propriety of the summary judgment as to those claims. See, e.g., White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) (" Rule 28(a)(10) [, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.").

II.

McCullough also argues that the trial court erred in denying his motion for a partial summary judgment on his claims alleging fraudulent inducement and fraudulent misrepresentation.

" 'The essential elements of a fraud claim are: (1) misrepresentation of a material fact; (2) made willfully to deceive, or recklessly without knowledge; (3) which was justifiably relied upon by the plaintiff under the circumstances; and (4) which caused damage as a proximate consequence. Bowman v. McElrath Poultry Co., 468 So.2d 879 (Ala. 1985).'
" Ramsay Health Care, Inc. v. Follmer, 560 So.2d 746, 749 (Ala. 1990)."

Patten v. Alfa Mut. Ins. Co., 670 So.2d 854, 856 (Ala. 1995).

According to McCullough, he informed Allstate, through its attorney, that he would not settle the federal lawsuit unless Allstate reported no payment on the claim. McCullough averred that Allstate's attorney subsequently e-mailed McCullough and informed McCullough that Allstate had reported to CLUE that it had paid nothing on the claim. According to McCullough, that fact, along with his own information that no other report on the claim existed at the time, led McCullough to settle the federal lawsuit because he believed that no reported payment on the claim would be on record; however, Allstate subsequently reported the $8,000 payment to CLUE and A-PLUS.

Although McCullough presented evidence of fraud, the release contained a merger clause providing: "This Settlement Agreement contains the entire agreement between McCullough and [Allstate] with regard to the matters set forth herein. There are no understandings or agreements, verbal or otherwise, between the parties except as expressly set forth." Considering that the release did not specify that Allstate must report that nothing was paid on the claim, coupled with the language of the merger clause, we conclude that there is a genuine issue of material fact as to whether Allstate, " 'willfully to deceive, or recklessly without knowledge,' " agreed to report an amount of $0 on the claim and whether McCullough reasonably relied on any representation outside those contained in the release. Patten, 670 So.2d at 856. See also Downs, 622 So.2d at 342 ("[A]n integration clause in a written agreement may support a finding that the plaintiff did not rely on extraneous representations.").

Based on the foregoing, McCullough's motion for a partial summary judgment on his claims alleging fraudulent inducement and fraudulent misrepresentation were properly denied. McCullough has presented no argument complying with Rule 28(a)(10) regarding his motion for a partial summary judgment as to his claims alleging breach of the release and negligence; therefore we will not address whether a partial summary judgment should have been entered in McCullough's favor on those claims. See, e.g., White Sands Grp., 998 So.2d at 1058.

III.

McCullough further argues that the trial court erred in denying his motion for a jury trial. We note, however, that, on February 22, 2017, the trial court granted his motion for a jury trial. Therefore, we find no error on this point.

IV.

McCullough also argues that the trial court erred in converting his motion for a declaratory judgment into an amended complaint. This court's previous opinion, however, concluded that the motion for a declaratory judgment was properly construed as an amended complaint. McCullough, 219 So.3d at 659. We maintain that our decision was correct; in any case, that decision is the law of the case. See, e.g., United Fire Ins. Co. v. Purma, 792 So.2d 1092, 1094 (Ala. 2001). Therefore, we can find no error on this point.

V.

McCullough's final argument is that the trial court erred by denying his motion to compel Allstate to respond to his discovery requests and by failing to postpone the summary-judgment proceedings in response to his affidavit filed pursuant to Rule 56(f). Because we have concluded that there is a genuine issue of material fact and that the entry of the summary judgment on his fraudulent-inducement and fraudulent-misrepresentation claims was not proper, we pretermit discussion of the merits regarding the Rule 56(f) affidavit.

With regard to the motion to compel discovery, McCullough argues that the trial court erred by not requiring Allstate to respond to his discovery requests relating to Allstate's claims processing and its insurance-reporting contracts with CLUE and A-PLUS. Allstate argued to the trial court that the information McCullough was seeking was irrelevant because the release barred McCullough's claims; the trial court concluded that the discovery was not "probative of the dispositive issues before the Court."

" Rule 26 [, Ala. R. Civ. P.,] plainly indicates that discovery is not limited to matters competent as evidence at trial. 'Relevancy,' as used in our discovery rules, means relevant to the subject matter of the action; evidence is relevant if it affords a reasonable possibility that the information sought will lead to other evidence that will be admissible. Ex parte Dorsey Trailers, [397 So.2d 98 (Ala. 1981) ] ; Drew[e]s v. Bank of Wadley, 350 So.2d 402 (Ala. 1977) ; 8 Wright and Miller, Federal Practice and Procedure § 2008 (1970)."

Plitt v. Griggs, 585 So.2d 1317, 1321 (Ala. 1991).

Based on our determination that McCullough's fraudulent-inducement and fraudulent-misrepresentation claims were not barred as a matter of law, we reverse the trial court's judgment insofar as it denied McCullough's motion to compel and remand this cause with instructions for the trial court to reconsider the motion to compel in light of this opinion.

To the extent McCullough argues that the trial court erred in striking his interrogatories directed to Allstate's attorney, we note that he has not cited any rule or legal authority providing that he may propound interrogatories to an attorney as opposed to a party to the lawsuit. Therefore, we decline to address his argument on this point. See Rule 28(a)(10), Ala. R. App. P.

Conclusion

Based on the foregoing, we reverse the trial court's summary judgment in favor of Allstate regarding the claims alleging fraudulent inducement and fraudulent misrepresentation. We also reverse the trial court's judgment to the extent that it denied McCullough's motion to compel discovery. We affirm the trial court's summary judgment in favor of Allstate on the remaining claims asserted by McCullough and the trial court's denial of McCullough's motion for a partial summary judgment. In light of our disposition of the issues concerning the summary-judgment motions, we pretermit discussion of the trial court's rulings on the motion to strike Harmon's Rule 56(c) affidavit and the motion to strike McCullough's Rule 56(c) affidavit. We remand this cause for further proceedings in accordance with this opinion.

APPLICATION GRANTED; OPINION OF OCTOBER 27, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

      CLUE and A-PLUS are service providers that issue reports containing information received from automobile- and property-insurance carriers regarding claims made by consumers on their automobile- and property-insurance policies.

      "[An] appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b)[, Ala. R. Civ. P.,] summary judgment disposing of fewer than all claims) entitles the [appellant] ... to raise issues based upon the trial court's adverse rulings, including the denial of its summary-judgment motions. See Ala. R. App. P. 4(a)(1)." Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 263 (Ala. 2002).