Ex parte The Boys And Girls Clubs of South Alabama, Inc. , 163 So. 3d 1007 ( 2014 )

REL: 07/03/2014
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
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Ex parte The Boys and Girls Clubs of South Alabama, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama et al.
v.
The Boys and Girls Clubs of South Alabama, Inc., and The
Community Foundation of South Alabama)
(Baldwin Circuit Court, CV-13-900812)
MURDOCK, Justice.
The Boys and Girls Clubs of South Alabama, Inc.
("BGCSA"), seeks a writ of mandamus ordering the Baldwin
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Circuit Court to dismiss a declaratory-judgment action filed
against it and The Community Foundation of South Alabama by
the attorney general of Alabama, Fairhope-Point Clear Rotary
Youth Programs, Inc. ("Rotary Inc."), and Ruff Wilson Youth
Organizations, Inc. ("Wilson Inc.") (hereinafter the latter
two parties are referred to collectively as "the Eastern Shore
Clubs"). We grant the petition.
I. Facts and Procedural History
This is the third action that has come before this Court
arising out of a dispute between BGCSA and the Eastern Shore
Clubs concerning certain funds. Many of the pertinent
underlying facts were provided in our opinion in the first
action, The Boys & Girls Clubs of South Alabama, Inc. v.
Fairhope-Point Clear Rotary Youth Programs, Inc., 114 So. 3d
817 (Ala. 2012). In that case we explained that BGCSA
"operates several facilities in Mobile County to
promote, as stated in its certificate of
incorporation, 'the health, social, educational,
vocational, and character development' of youth in
Baldwin and Mobile Counties. In 1996, it was also
operating facilities in Baldwin County. In
particular, it operated a facility in Fairhope
sometimes referred to as the 'Fairhope Boys and
Girls Club' ('the Fairhope Club'). It operated
another such facility in Daphne sometimes referred
to as the 'Daphne Boys and Girls Club' ('the Daphne
Club')."
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114 So. 3d at 818.
On November 13, 1996, B.R. Wilson, Jr., one of the
incorporators and a principal benefactor of BGCSA, executed a
deed transferring to BGCSA approximately 17 acres of real
estate ("the property"). Contemporaneously with the execution
of the deed, Wilson gave a letter to BGCSA that stated
Wilson's intentions and stipulations concerning his gift of
the property. The letter stated that BGCSA was "'free to
ultimately dispose of this property,'" but that it was
Wilson's "'desire and understanding that [BGCSA] will use the
proceeds from any such disposition for [BGCSA's] facilities
and/or activities in the Fairhope–Point Clear area.'" 114
So. 3d at 818. Wilson died in 1997.
"In March 2000, [BGCSA] sold the property and
deposited the proceeds into three separate accounts,
two of which were separately earmarked for the
Daphne Club and for the Fairhope Club. However, on
May 31, 2009, the Club discontinued its operations
in Daphne and Fairhope, citing 'operating deficits'
as a contributing factor. It transferred the
remainder of the proceeds from the sale of the
property to an account in the Community Foundation
of South Alabama ('the bank').
"On June 1, 2009, the facilities in Daphne and
Fairhope were reopened by volunteers and former
[BGCSA] personnel, who began operating the youth
centers under their own independent management
structures. Subsequently, some of these individuals
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incorporated Rotary Inc. and Wilson Inc., under
which they continued to operate the facilities in
Fairhope and Daphne, respectively."
Id. at 818-19.
On April 22, 2010, the Eastern Shore Clubs filed an
action in the Baldwin Circuit Court seeking declaratory and
injunctive relief against BGCSA. The Eastern Shore Clubs
alleged that BGCSA "ha[d] used," or, perhaps, was
"anticipat[ing] using," the proceeds from the sale of the
property ("the Wilson funds") for its own operations, rather
than for the benefit of the Eastern Shore Clubs. A bench
trial ensued. On March 15, 2012, the Baldwin Circuit Court
entered a judgment in which it concluded that Wilson's intent
was that the Wilson funds should be used for the "exclusive
benefit of the Fairhope and Daphne Clubs." The Baldwin
Circuit Court ordered the disbursal of the remainder of the
Wilson funds, namely $1,104,081.78, as follows: $893,377.02
to Rotary Inc. and $210,704.76 to Wilson Inc.
BGCSA appealed the Baldwin Circuit Court's judgment to
this Court. In Boys & Girls Clubs of South Alabama, this
Court vacated the Baldwin Circuit Court's judgment and
dismissed the case and the appeal. This Court reasoned that
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the Eastern Shore Clubs' suit was an action under the Alabama
Nonprofit Corporation Law, Ala. Code 1975, §§ 10A-3-1 through
10A-3-8.02, because they contended that BGCSA lacked the power
to spend the Wilson funds in any way other than for the
benefit of the Eastern Shore Clubs. In effect, the Eastern
Shore Clubs sought a declaration that BGCSA had committed or
would commit an ultra vires act by spending the Wilson funds
in any manner that did not benefit the Eastern Shore Clubs.
Actions alleging ultra vires acts against a nonprofit
corporation are governed by § 10A–3–2.44, Ala. Code 1975,
which, in relevant part, provides:
"No act of a nonprofit corporation and no
conveyance or transfer of real or personal property
to or by a nonprofit corporation shall be invalid by
reason of the fact that the corporation was without
capacity or power to do an act or to make or receive
a conveyance or transfer, but lack of capacity or
power may be asserted:
"(1) In a proceeding by a member or a
director against the nonprofit corporation
to enjoin the doing or continuation of
unauthorized acts, or the transfer of real
or personal property by or to the nonprofit
corporation. ...
"(2) In a proceeding by the nonprofit
corporation, whether acting directly or
through a receiver, trustee, or other legal
representative, or through members in a
representative suit, against the officers
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or directors of the nonprofit corporation
for exceeding their authority.
"(3) In a proceeding by the Attorney
General, as provided in this chapter, to
dissolve the nonprofit corporation, or in
a proceeding by the Attorney General to
enjoin the nonprofit corporation from
performing unauthorized acts, or in any
other proceeding by the Attorney General."
Based on the requirements of § 10A–3–2.44, a plurality of
this Court reasoned in Boys & Girls Clubs of South Alabama:
"It is undisputed that [BGCSA] is a nonprofit
corporation within the purview of the [Alabama
Nonprofit Corporation Law], and [the Eastern Shore
Clubs] do not claim, or purport, to be members or
directors of [BGCSA]. Thus, it is clear that Rotary
Inc. and Wilson Inc. are not such persons as are
authorized by § 10A-3-2.44 to commence an action
against [BGCSA] relating to the transactions
challenged in this case. In short, ... Rotary Inc.
and Wilson Inc. have failed to demonstrate that they
are proper parties to sue [BGCSA] over the
disposition of the [Wilson funds]. Consequently, the
complaint filed by Rotary Inc. and Wilson Inc.
failed to invoke the subject-matter jurisdiction of
the trial court."
114 So. 3d at 821 (footnote omitted).
On May 16, 2013, BGCSA filed in the Mobile Circuit Court
a declaratory-judgment action against the Eastern Shore Clubs
seeking entitlement to the Wilson funds and the right to spend
the funds as it sought fit ("the Mobile action"). On June 6,
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2013, BGCSA provided notice of the action to the attorney
general, who waived any further service or right to be heard.
On June 13, 2013, the Eastern Shore Clubs filed a motion
to dismiss the Mobile action contending that, under the
principles stated in Boys & Girls Clubs of South Alabama,
BGCSA lacked standing to bring the action. On August 26,
2013, the Mobile Circuit Court denied the Eastern Shore Clubs'
motion.
The Eastern Shore Clubs petitioned this Court for a writ
of mandamus, which sought an order directing the Mobile
Circuit Court to dismiss the Mobile action for the same reason
they asserted in their motion to dismiss. On December 9,
2013, this Court denied the mandamus petition by order
(no. 1121540).
On June 13, 2013, the attorney general's office, on
behalf of the Eastern Shore Clubs,1 filed a declaratory-
judgment action in the Baldwin Circuit Court against BGCSA and
1
The attorney general does not claim that the State has
an interest in the Wilson funds. The respondents' brief
states that the attorney general is involved to seek
compliance by the Eastern Shore Clubs with the requirements of
§ 10A-3-2.44, Ala. Code 1975.
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the Community Foundation of South Alabama2 seeking a
"determination of the ownership of the [Wilson] funds" ("the
present action"). On July 17, 2013, BGCSA filed a motion to
dismiss the action, contending that the action was "barred by
Alabama's abatement statute, Alabama Code § 6-5-440." The
Baldwin Circuit Court denied the motion on September 30, 2013.
Subsequently, BGCSA filed a petition for a writ of mandamus
asking this Court to direct the Baldwin Circuit Court to
vacate its order denying BGCSA's motion to dismiss and to
dismiss the present action.
II. Standard of Review
"'[A] writ of mandamus is an extraordinary
remedy, which requires the petitioner to demonstrate
a clear, legal right to the relief sought, or an
abuse of discretion.' Ex parte Palm Harbor Homes,
Inc., 798 So. 2d 656, 660 (Ala. 2001). Mandamus is
the appropriate remedy to correct a trial court's
failure to properly apply § 6-5-440. See Ex parte
Chapman Nursing Home, Inc., 903 So. 2d 813 (Ala.
2004); Ex parte Breman Lake View Resort, L.P., 729
So. 2d 849, 852 (Ala. 1999)."
Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 108 (Ala. 2010).
2
The parties agree that the Community Foundation of South
Alabama is simply the holder of the Wilson funds and that it
claims no ownership right in those funds. It is not a party
to this mandamus proceeding.
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III. Analysis
The contentions of the parties are straightforward.
BGCSA contends that the present action is barred by § 6-5-440,
Ala. Code 1975. Section 6-5-440 provides:
"No plaintiff is entitled to prosecute two
actions in the courts of this state at the same time
for the same cause and against the same party. In
such a case, the defendant may require the plaintiff
to elect which he will prosecute, if commenced
simultaneously, and the pendency of the former is a
good defense to the latter if commenced at different
times."
BGCSA notes that the Mobile action and the present action are
both declaratory-judgment actions seeking to determine who is
entitled to the Wilson funds and that the same principal
parties -- BGCSA and the Eastern Shore Clubs -- are involved
in both actions. BGCSA further observes that the Mobile
action was filed on May 16, 2013, while the present action was
filed on June 13, 2013. BGCSA argues that all the
requirements of § 6-5-440 are fulfilled and that, therefore,
the abatement statute requires the dismissal of the later
filed present action.
The attorney general and the Eastern Shore Clubs do not
dispute that the two actions concern the same cause. Indeed,
in their brief the attorney general and the Eastern Shore
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Clubs state that "[t]he underlying controversy in the present
Baldwin County case is the same as in the Mobile case ...."
They assert, however, that "[t]he only significant difference
between these two actions, which is the basis of the Mobile
Litigation's impropriety, is that Attorney General Luther J.
Strange, III, [is a plaintiff in] the Baldwin Litigation while
the Attorney General is not a party to the pending Mobile
Litigation."
The attorney general and the Eastern Shore Clubs contend
that their action is not barred because, they argue, the
Mobile Circuit Court lacked subject-matter jurisdiction over
the Mobile action in that BGCSA lacked "standing" to file the
Mobile action under the principles enunciated in Boys & Girls
Clubs of South Alabama. The attorney general and the Eastern
Shore Clubs in essence argue that BGCSA brought an action
against the Eastern Shore Clubs under § 10A-3-2.44 but that
BGCSA does not fit into any of the three categories of parties
who may bring such a claim: BGCSA is not a member or a
director of the Eastern Shore Clubs as contemplated by § 10A-
3-2.44(1), BGCSA's suit is not suit against its own officers
and directors as contemplated by § 10A-3-2.44(2), and the
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attorney general did not file the Mobile action as
contemplated by § 10A-3-2.44(3). Therefore, the attorney
general and the Eastern Shore Clubs contend, BGCSA lacked
"standing" to bring the Mobile action. They reason that
because BGCSA lacked standing, the Mobile Circuit Court lacked
subject-matter jurisdiction over that action. Based on this
contention, the attorney general and the Eastern Shore Clubs
take the position that the present action should be considered
as the only action now pending on the matter of the
disposition of the Wilson funds and that, accordingly, § 6-5-
440 is not implicated.
We begin our analysis by reiterating that the opinion in
Boys & Girls Clubs of South Alabama, upon which the Eastern
Shore Clubs seek to rely, was a plurality opinion. As such,
that opinion does not represent binding precedent.
Furthermore, although that plurality opinion was premised on
a purported lack of "standing" by the Eastern Shore Clubs,
precedent from this Court makes it clear that a deficiency in
the plaintiffs' claim of the nature at issue in that action
was a failure to state a claim upon which relief could be
granted, not a lack of standing. We have noted that "our
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courts too often have fallen into the trap of treating as an
issue of 'standing' that which is merely a failure to state a
cognizable cause of action or legal theory, or a failure to
satisfy the injury element of a cause of action." Wyeth, Inc.
v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216, 1219
(Ala. 2010). In delineating the distinction between the
concepts of standing and failure to state a claim, the Wyeth
Court quoted the authors of Federal Practice and Procedure:
"'Standing goes to the existence of
sufficient adversariness to satisfy both
Article III case-or-controversy
requirements and prudential concerns. In
determining standing, the nature of the
injury asserted is relevant to determine
the existence of the required personal
stake and concrete adverseness. ... The
focus of the cause-of-action inquiry must
not be confused with standing —- it does
not go to the quality or extent of the
plaintiff's injury, but to the nature of
the right asserted.'"
42 So. 3d at 1220 (quoting 13A Charles Alan Wright, Arthur K.
Miller, and Edward H. Cooper, Federal Practice & Procedure
§ 3531.6 (2008)) (emphasis omitted; emphasis added).
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Assuming the allegations in the complaint in Boys & Girls
Clubs of South Alabama were true,3 there is no question that
the Eastern Shore Clubs therein alleged an injury, i.e., the
deprivation of funds to which they claimed to be entitled,
that gave rise to the adverseness necessary for standing. The
issue before the Court was whether the Eastern Shore Clubs met
the elements of the claim they had asserted under
§ 10A-3-2.44. The Court concluded that on the face of their
complaint the Eastern Shore Clubs failed to meet the statutory
requirements for an action under § 10A-3-2.44. In other
words, the deficiency in their action was that the "legal
theories asserted by the [Eastern Shore Clubs] are [not]
recognized by Alabama law; they are not questions of the
[Eastern Shore Clubs'] 'standing' to assert and attempt to
prove those legal theories in our courts." Ex parte MERSCORP,
3
"In analyzing whether [the plaintiff] has standing at the
dismissal stage, we must assume that [the plaintiff] states a
valid legal claim ... and 'must accept the factual allegations
in the complaint as true.'" Information Handling Servs., Inc.
v. Defense Automated Printing Servs., 338 F.3d 1024, 1029
(D.C. Cir. 2003) (quoting Sturm, Ruger & Co. v. Chao, 300 F.3d
867, 871 (D.C. Cir. 2002)). See also Wyeth, Inc., 42 So. 3d
at 1220 (noting that "we assume th[e] legal theory [advanced
by the plaintiff] to be viable for purposes of our standing
inquiry").
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Inc., [Ms. 1111370, Sept. 20, 2013] ___ So. 3d ___, ___ (Ala.
2013).
The fact that the deficiency in Boys & Girls Clubs of
South Alabama was not one of standing but rather of a failure
to satisfy the elements of § 10-3-2.44 undermines the argument
of the attorney general and the Eastern Shore Clubs in the
present case. They contend that BGCSA lacked standing in the
Mobile action because, they say, BGCSA's action was brought
under § 10A-3-2.44 and BGCSA was not a proper party to bring
the action under the requirements of that statute. The
attorney general and the Eastern Shore Clubs conclude that
because BGCSA lacked standing, the Mobile Circuit Court lacked
subject-matter jurisdiction over the Mobile action. As the
above discussion concerning Boys & Girls Clubs of South
Alabama indicates, however, the alleged deficiency in the
Mobile action raised by the attorney general and the Eastern
Shore Clubs involves an alleged failure to state a claim, not
a failure of standing. A failure to state a claim does not
implicate a court's subject-matter jurisdiction. Thus, the
Mobile Circuit Court had jurisdiction to entertain BGCSA's
action, and that action was pending at the time the attorney
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general and the Eastern Shore Clubs filed the present action
in the Baldwin Circuit Court. In short, the attorney general
and the Eastern Shore Clubs are incorrect in contending that
§ 6-5-440 is inapplicable on the ground that the present
action in the Baldwin Circuit Court should be considered as
the only pending action that concerns the disposition of the
Wilson funds.4
The argument of the attorney general and the Eastern
Shore Clubs is also problematic because it incorrectly
characterizes the nature of the Mobile action. As noted
above, the attorney general and the Eastern Shore Clubs assume
that § 10A-3-2.44 applies to the Mobile action, but that
section concerns "act[s] of a nonprofit corporation" or
"conveyance[s] or transfer[s] of real or personal property to
or by a nonprofit corporation" that a challenger alleges "the
corporation was without capacity or power to do." In the
4
Even if questions existed as to the jurisdiction of the
Mobile Circuit Court over the Mobile action, those questions
would be within the province of the Mobile Circuit Court,
itself. An argument (that we need not further address in this
case) exists that it is not for a court in one circuit to
treat an action initiated in another circuit as if it were not
pending and that, unless and until the court in which that
action is filed dismisses it, the action remains pending for
purposes of § 6-5-440.
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Mobile action, BGCSA obviously does not contend that it lacks
the power to spend the Wilson funds in any manner it deems
appropriate. Likewise, BGCSA is not challenging in the Mobile
action an act of the Eastern Shore Clubs as ultra vires (nor
does it have to, because BGCSA has always controlled the
Wilson funds). In short, the Mobile action, unlike the 2010
action filed by the Eastern Shore Clubs, does not challenge an
alleged ultra vires act of a nonprofit corporation, and it
therefore is not governed by § 10A-3-2.44.5
Instead, BGCSA seeks a judgment clarifying its right to
the Wilson funds as a result of the doubt created by the
March 15, 2012, judgment of the Baldwin Circuit Court that
this Court vacated in Boys & Girls Clubs of South Alabama.
The Mobile Circuit Court observed in its order denying the
Eastern Shore Clubs' motion to dismiss the Mobile action that
§ 10A-1-2.11, Ala. Code 1975, expressly states that nonprofit
corporations possess "the power to ... sue, be sued, complain,
and defend suit in its entity name," and that such an entity
5
In Boys & Girls Clubs of South Alabama, this Court stated
that "it is clear that [the Eastern Shore Clubs] are not such
persons as are authorized by § 10A-3-2.44 to commence an
action against [BGCSA] relating to the transactions challenged
in this case." 114 So. 3d at 821 (emphasis added).
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"has the same powers as an individual to take action necessary
or convenient to carry out its business and affairs." The
Mobile Circuit Court also noted that § 6-6-220, Ala. Code
1975, provides that a nonprofit corporation is a "person"
within the meaning of the Declaratory Judgment Act. Thus,
BGCSA is empowered to seek a declaratory judgment that will
help it carry out its business and affairs, which is precisely
what BGCSA has done by filing the Mobile action.
Because the Mobile action is not governed by
§ 10A-3-2.44, the action did not need to be brought by a
member or director of BGCSA or by the attorney general. For
these reasons as well, the Mobile action was and is properly
before the Mobile Circuit Court. In reaching this conclusion,
we merely express by opinion that which was implied by the
December 9, 2013, order of this Court denying the Eastern
Shore Clubs' petition for a writ of mandamus in the Mobile
action.
Having confirmed the fact that the Mobile action is
properly before the Mobile Circuit Court, we address the only
remaining question: Whether § 6-5-440 does, in fact, require
the dismissal of the present action. This Court has stated
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that § 6-5-440 "means that 'where two or more courts have
concurrent jurisdiction, the one which first takes cognizance
of a cause has the exclusive right to entertain and exercise
such jurisdiction, to the final determination of the action
and the enforcement of its judgments or decrees.'" Regions
Bank v. Reed, 60 So. 3d 868, 884 (Ala. 2010) (quoting Ex parte
Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938)). There is
no question that the Mobile action was filed before the
present action. As we noted earlier in this analysis, the
Eastern Shore Clubs concede that the Mobile action and the
present action involve the same cause.
The only difference between the two actions noted by the
Eastern Shore Clubs -- the presence of the attorney general as
a party in the present action but not in the Mobile action --
has no bearing on a determination of whether the present
action is subject to abatement because the attorney general
does not claim any independent interest in the subject of the
cause of the two actions.
This Court has observed that "[t]he application of § 6-5-
440 'is guided by "whether a judgment in one suit would be res
judicata of the other."'" Ex parte Compass Bank, 77 So. 3d
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578, 581 (Ala. 2011) (quoting Chiepalich v. Coale, 36 So. 3d
1, 3 (Ala. 2009), quoting in turn Sessions v. Jack Cole Co.,
276 Ala. 10, 12, 158 So. 2d 652, 654-55 (1963)). "'"[T]he
party identity criterion of res judicata does not require
complete identity, but only that the party against whom
res judicata is asserted was either a party or in privity with
a party to the prior action[.]"'" Chapman Nursing Home, Inc.
v. McDonald, 985 So. 2d 914, 921 (Ala. 2007) (quoting
Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 725 (Ala.
1990), quoting in turn Whisman v. Alabama Power Co., 512 So.
2d 78, 82 (Ala. 1987)).
This Court has explained:
"Our caselaw requires that 'there is a substantial
identity of parties in the two actions.' Ex parte
Ford Motor Credit Co., 772 So. 2d 437, 440 (Ala.
2000). Substantial identity requires that the
'"'parties be identical, sometimes referred to as
the mutuality of estoppel requirement.'"' Stewart
v. Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting
McMillian v. Johnson, 878 F. Supp. 1473, 1520 (M.D.
Ala. 1995)). '"An exception is made to this
requirement for parties in privity with a party to
the prior action."' Stewart, 902 So. 2d at 10(quoting McMillian, 878 F. Supp. at 1520) (emphasis
omitted). A party is deemed to be in privity with
a party to a prior action when there is '"'an
identity of interest in the subject matter of
litigation.'"' Stewart, 902 So. 2d at 11 (quoting
Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988),
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quoting in turn Issue Preclusion in Alabama, 32 Ala.
L. Rev. 500, 521 (1981)).
"....
"This Court has stated: '"'"A person may be
bound by a judgment even though not a party to a
suit if one of the parties to the suit is so closely
aligned with his interests as to be his virtual
representative."'"' Gonzalez, LLC v. DiVincenti,
844 So. 2d 1196, 1203 (Ala. 2002) (quoting Green v.
Wedowee Hosp., 584 So. 2d 1309, 1315 (1991), quoting
other cases)."
Greene v. Jefferson Cnty. Comm'n, 13 So. 3d 901, 912 (Ala.
2008) (emphasis added).
Assuming, without deciding, that the attorney general has
"standing" to bring the claims he asserts in the present
action and that he has asserted cognizable claims in the
action, those claims indisputably are asserted for the benefit
of, or in derivation of the purported rights of, the Eastern
Shore Clubs. Applying the foregoing principles of "privity"
and "virtual representation," it is clear that there is a
"substantial identity" of parties as between the Mobile action
and the present action.
Further, we note that the fact that the Eastern Shore
Clubs are plaintiffs in the present action but are defendants
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in the Mobile action is inconsequential to the application of
the abatement statute in this instance.
"This Court has held that the obligation imposed
on a defendant under Rule 13(a), Ala. R. Civ. P., to
assert compulsory counterclaims, when read in
conjunction with § 6-5-440, Ala. Code 1975, which
prohibits a party from prosecuting two actions for
the same cause and against the same party, is
tantamount to making the defendant with a compulsory
counterclaim in the first action a 'plaintiff' in
that action (for purposes of § 6-5-440) as of the
time of its commencement. See, e.g., Ex parte
Parsons & Whittemore Alabama Pine Constr. Corp., 658
So. 2d 414 (Ala. 1995); Penick v. Cado Systems of
Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993);
Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala. 1988).
Thus, the defendant subject to the counterclaim rule
who commences another action has violated the
prohibition in § 6-5-440 against maintaining two
actions for the same cause."
Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851
(Ala. 1999). Given that the claims asserted by the Eastern
Shore Clubs in the present action constitute compulsory
counterclaims in relation to the claims asserted by BGCSA in
the Mobile action, the present action is subject to abatement
under § 6-5-440.
The existence of the Mobile action requires the dismissal
of the present action. See Ex parte J.E. Estes Wood Co., 42
So. 3d at 109 (observing that "where § 6-5-440 applies, it
'compels dismissal'" (quoting Ex parte Canal Ins. Co., 534 So.
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2d 582, 585 (Ala. 1988) (emphasis omitted)). Accordingly, the
Baldwin Circuit Court erred in denying BGCSA's motion to
dismiss the present action on the basis of § 6-5-440.
IV. Conclusion
Section 6-5-440 compels the dismissal of the present
action because another action involving the same cause and the
same parties –- the Mobile action –- was filed first.
Therefore, we grant the petition for a writ of mandamus and
direct the Baldwin Circuit Court to vacate its September 30,
2013, order and to enter an order dismissing the present
action.
PETITION GRANTED; WRIT ISSUED.
Stuart, Shaw, and Wise, JJ., concur.
Bolin, Parker, Main, and Bryan, JJ., concur in the
result.
Moore, C.J., dissents.
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