Jennie Zinn and Christopher Zinn v. Ashley Till ( 2023 )

Rel: January 14, 2023
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) 229-0650), 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
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Jennie Zinn and Christopher Zinn
v.
Ashley Till
Appeal from Montgomery Circuit Court
(CV-19-901199)
BRYAN, Justice.
Jennie Zinn and Christopher Zinn appeal from a judgment of the
Montgomery Circuit Court dismissing their complaint against Ashley
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Till. For the reasons explained below, we reverse the circuit court's
judgment and remand this case for further proceedings.
Background
In their complaint, the Zinns allege the following. In October 2017,
the Zinns filed an adoption petition in the Elmore Probate Court ("the
probate court") concerning an unborn child ("the child"). The child was
born later that month, and the probate court subsequently entered an
interlocutory adoption decree. In November 2017, the Zinns filed an
amended adoption petition, listing the child's name and providing the
consent of the child's mother and purported father to the child's adoption.
On December 18, 2017, Till, an employee of the Alabama
Department of Human Resources, submitted an acknowledgment letter
to the probate court stating that there was no entry in the putative-father
registry relating to the child. See generally § 26-10C-1, Ala. Code 1975.
The next day, the probate court entered a final decree of adoption.
On January 25, 2018, Till submitted a corrected acknowledgment
letter to the probate court, identifying an individual who was, in fact,
listed in the putative-father registry regarding the child and stating that
incomplete information had previously been provided "due to oversight
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and neglect." The next day, the probate court vacated the final decree of
adoption based on the corrected acknowledgment letter.
In June 2019, the Zinns commenced this action against Till, "solely
in her individual capacity," and fictitiously named defendants. The
Zinns' complaint contained three counts. Count one alleged negligence.
Count two alleged wantonness. Count three did not include a similar
label, but, among other things, alleged that the defendants had "acted
willfully, maliciously, in bad faith, beyond their authority or under a
mistaken interpretation of the law …." The Zinns' complaint sought
awards of compensatory and punitive damages.
Till filed a motion to dismiss the Zinns' complaint. As grounds for
her motion, Till argued that the Zinns' claims were barred by the doctrine
of State-agent immunity and that Till's actions were not the proximate
cause of the Zinns' injuries. The Zinns filed a response to the motion. On
November 6, 2019, the circuit court entered an order granting Till's
motion to dismiss regarding count one of the Zinns' complaint but
denying the motion to dismiss regarding counts two and three.
Till later filed an answer to the complaint. The parties thereafter
proceeded to conduct discovery, and various discovery-related issues
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arose and were addressed by the circuit court over the course of the next
two years.
On October 22, 2021, Till filed a second motion to dismiss the Zinns'
remaining claims. In support of that motion, Till argued only that the
circuit court lacked jurisdiction over the Zinns' remaining claims
because, Till said, those claims were barred by the doctrine of State
immunity. The Zinns filed a response in opposition to that motion to
dismiss. Till filed a reply to the Zinns' response.
After conducting a hearing, the circuit court entered an order on
March 3, 2022, granting Till's motion to dismiss the Zinns' remaining
claims. 1 In so doing, the circuit court reasoned that the Zinns' claims
were barred by the doctrine of State immunity and, alternatively, the
doctrine of State-agent immunity.
1The Zinns did not substitute parties in place of the fictitiously
named parties set out in their complaint. Consequently, the circuit
court's judgment disposing of all the claims asserted against Till was a
final judgment. "Under Rule 4(f), [Ala. R. Civ. P.,] service on the other
defendants must be completed, not merely attempted, before it can be
said the pending action involves other active defendants." Owens v.
National Sec. of Alabama, Inc., 454 So. 2d 1387, 1388 n.2 (Ala. 1984). See
also Ex parte Harrington, 289 So. 3d 1232, 1237 n.5 (Ala. 2019)("A
judgment that disposes of fewer than all the defendants is final when the
defendants as to whom there has been no judgment have not yet been
served with notice.").
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The Zinns filed a postjudgment motion requesting, among other
things, that the circuit court enter an order clarifying that it had not
treated Till's second motion to dismiss as a summary-judgment motion.
The Zinns noted that, although the parties had conducted discovery, Till
had not attached any evidentiary materials in support of her second
motion to dismiss. The circuit court thereafter entered an order stating,
among other things: "To be clear, the Court granted [Till's m]otion to
[d]ismiss based solely upon the pleadings and applicable law." The Zinns
appealed.
Standard of Review
The parties generally agree regarding the appropriate standard of
review. "On appeal, a dismissal is not entitled to a presumption of
correctness." Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993). If the
complaint states a claim "under a provable set of facts upon a cognizable
theory of law …, then it should not have been dismissed." Childs v.
Mississippi Valley Title Ins. Co., 359 So. 2d 1146, 1146 (Ala. 1978). "In
making this determination, this Court does not consider whether the
plaintiff will ultimately prevail, but only whether she may possibly
prevail." Nance, 622 So. 2d at 299. "In considering whether a complaint
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is sufficient to withstand a motion to dismiss, this Court must accept the
allegations of the complaint as true." Creola Land Dev., Inc. v.
Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
Analysis
On appeal, the Zinns argue that the circuit court erred by
dismissing their claims on immunity grounds. In response, Till appears
to concede that, under the applicable standard of review, the circuit
court's judgment should be reversed.
On appeal, Till asserts that her second motion to dismiss was
predicated on the doctrine of State immunity, as set forth in this Court's
decisions in Barnhart v. Ingalls, 275 So. 3d 1112 (Ala. 2018), and Ex parte
Cooper, [Ms. 1200269, Sept. 30, 2021] ____ So. 3d ____ (Ala. 2021).
Regarding claims like those asserted by the Zinns against Till, Till states
that this Court's recent decision in Ex parte Pinkard, [Ms. 1200658, May
27, 2022] ____ So. 3d ____ (Ala. 2022), overruled the applicable aspect of
"Barnhart and its progeny … holding that [s]overeign[, i.e., State,
i]mmunity does not apply to … individual-capacity claims." Till's brief at
6. Therefore, Till appears to agree that, taking the allegations of the
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Zinns' complaint as true at this juncture, State immunity does not clearly
bar the Zinns' claims against her under this Court's current precedent.
Till also states: "[T]he issue of State-agent immunity is not
jurisdictional and should be addressed in this matter upon a motion for
[a] summary judgment." Till's brief at 7. See Ex parte Alabama Dep't of
Mental Health & Mental Retardation, 837 So. 2d 808, 813-14 (Ala.
2002)("[A] motion to dismiss is typically not the appropriate vehicle by
which to assert … State-agent immunity[,] and … normally the
determination as to the existence of such a defense should be reserved
until the summary-judgment stage, following appropriate discovery.").
As explained above, Till moved to dismiss count one of the Zinns'
complaint based on State-agent immunity, and the circuit court cited
State-agent immunity as an alternative ground for dismissing counts two
and three of the complaint. On appeal, Till's statement that the issue of
State-agent immunity should be resolved via a motion for a summary
judgment does not distinguish between any of the counts set forth in the
Zinns' complaint. Therefore, it appears that Till agrees that none of the
counts set forth in the Zinns' complaint should have been dismissed based
on the doctrine of State-agent immunity. Thus, insofar as the circuit
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court's judgment dismissing each count of the complaint was based on
the doctrine of State-agent immunity, the parties appear to agree that
the judgment is due to be reversed regarding each count.
Accordingly, because the parties appear to agree concerning the
appropriate disposition of this appeal, the circuit court's judgment
dismissing the Zinns' complaint is hereby reversed regarding each count,
and this case is remanded for further proceedings.
REVERSED AND REMANDED.
Wise, Sellers, Mendheim, and Stewart, JJ., concur.
Shaw, J., concurs in the result, with opinion.
Mitchell, J., concurs in the result, with opinion, which Parker, C.J.,
and Bolin, J., join.
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SHAW, Justice (concurring in the result).
I respectfully concur in the result. I write specially to note the
following.
I do not believe that State immunity can never bar claims against
State agents when such claims are merely pleaded in the form of
individual-capacity claims. Ex parte Pinkard, [Ms. 1200658, May 27,
2022] ___ So. 3d ___, ___ (Ala. 2022) (Shaw, J., concurring in the result)
(stating that this Court may recognize when a "barred official-capacity
claim for damages [is] masquerading as an individual-capacity claim").
Additionally, although apparently not applicable in this case, it may be
possible to dispose of a claim subject to a State-agent-immunity defense
by a motion to dismiss under Rule 12(b)(6), Ala. R. Civ. P. See Ex parte
Scannelly, 74 So. 3d 432, 439 (Ala. 2011) (noting that "some affirmative
defenses … may be readily apparent from the face of the complaint" and
thus may be properly raised in a Rule 12(b)(6) motion to dismiss).
Finally, although I do not read the main opinion as stating otherwise, the
fact that an appellee concedes that a reversal is required, or does not
defend a trial court's judgment, does not always mean that this Court
must reverse that decision. See Reagan v. Alabama Alcoholic Beverage
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Control Bd., 339 So. 3d 211, 217 (Ala. 2021) (noting that the appellant
"has the burden of demonstrating that the trial court erred to reversal"),
and Ex parte CTB, Inc., 782 So. 2d 188, 191 (Ala. 2000) (holding that this
Court can "affirm the judgment of the trial court if that judgment is
supported by any valid legal ground, even if that ground was not argued
before … this Court"). Nevertheless, I agree with the main opinion that
the trial court's judgment is due to be reversed.
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MITCHELL, Justice (concurring in the result).
I agree with the main opinion that the judgment should be reversed,
but for a different reason. As the main opinion recognizes, the applicable
standard of review is whether, based on the pleadings, the plaintiffs "may
possibly prevail." Nance v. Matthews, 622 So. 2d 297, 299 (Ala.
1993). Instead of applying that standard, however, the main opinion
concludes that reversal is proper because "the parties appear to agree
concerning the appropriate disposition of this appeal." ___ So. 3d at
___. In my view, the fact that the parties agree on a point of law does not
establish that the point is correct. Cf. Boss Livery Co v. Griffith, 17 Ala.
App. 474, 475, 85 So. 849, 849 (1920) ("Consent or agreement of the
parties cannot oust a court of its appellate jurisdiction, or limit the
principle of decision by excluding certain legal considerations which may
be pertinent to the issue.").
When we hinge the outcome of this case on the law -- not the parties'
agreement about the law -- the case comes out the same. Accepting "the
allegations of the complaint as true," Creola Land Dev., Inc. v.
Bentbrooke Hous., L.L.C., 828 So. 2d 285, 288 (Ala. 2002) (emphasis
omitted), Jennie and Christopher Zinn have shown that they may
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possibly prevail. Nance, 622 So. 2d at 299. The Zinns properly asserted
claims for negligence and wantonness, and it is not " 'beyond a doubt that
[they] can prove no set of facts entitling [them] to relief.' " Patton v.
Black, 646 So. 2d 8, 10 (Ala. 1994) (citation omitted). Moreover, State
immunity cannot bar a complaint against Ashley Till in her individual
capacity unless the complaint substantively attacks a State financial or
property right, which the complaint filed by the Zinns does not
do. See Ex parte Pinkard, [Ms. 1200658, May 27, 2022] ___ So. 3d. ___
(Ala. 2022). Finally, the pleadings here are insufficient to assess whether
State-agent immunity bars the Zinns' claims. See Ex parte Alabama
Dep't of Mental Health & Mental Retardation, 837 So. 2d 808, 813-14
(Ala. 2002). For these reasons, I agree that the Zinns' claims were
improperly dismissed, and I concur in the result.
Parker, C.J., and Bolin, J., concur.
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