Franklin Circuit Court. CV-92-033.
L. Charles Wright, Retired Appellate Judge. Robertson, P.j., Thigpen, Yates, Monroe, JJ., concur. Crawley, J., concurs in the result.
The opinion of the court was delivered by: Wright
PETITION FOR WRIT OF MANDAMUS
WRIGHT, Retired Appellate Judge
In 1984 the Franklin County Department of Human Resources, on behalf of Sandra Hillman, filed an action against Alan Rorer, requesting that he be adjudicated the father of Hillman's minor child. Rorer was determined to be the father and began paying child support at that time.
In 1991 Rorer requested that blood tests be ordered. His request was granted. The results of the tests excluded Rorer from being the biological father of the child. Following proceedings in the district court, Rorer was granted certain relief and, in effect, was found not to be the father of the child.
The Department filed a notice of appeal to the circuit court for a trial de novo. Rorer filed a jury demand.
Rorer subsequently filed a counterclaim, requesting that the circuit court enter an order directing the Department and the mother to return to him all child support payments he had previously made on behalf of the child and ordering the Department and the mother to pay all his costs, expenses, and attorney fees expended defending the matter. He further requested that the Department and the mother pay damages based on commencing and continuing a malicious, harassing proceeding after the blood tests clearly excluded him from being the biological father of the minor child.
A jury trial was held in September 1992. Following the presentation of both parties' cases, the circuit court granted a directed verdict in favor of Rorer. His counterclaim was ordered severed and set for adjudication at a later date.
The Department filed an appeal with this court, attacking a procedural matter. We affirmed the judgment of the trial court. State ex rel. Hillman v. Rorer, 629 So. 2d 656 (Ala. Civ. App. 1993). The supreme court denied the Department's petition for writ of certiorari. Ex parte State ex rel. Hillman, 629 So. 2d 657 (Ala. 1993).
Rorer amended his counterclaim to include fictitious defendants X, Y, and Z ("individuals who decided or aided in the decision to pursue the paternity action against [him] after the blood test results were made available"). The counterclaim was again amended to allege that the defendants intentionally and in bad faith initiated a paternity action against him in violation of their own policy and/or under a mistaken interpretation of the law.
The Department filed a motion to dismiss or, in the alternative, a motion for summary judgment, raising sovereign immunity as a defense.
Following a hearing on the matter, the trial court denied the Department's motion, finding that the Department was not constitutionally immune from the suit and that "the amended counterclaim states a cause of action against the counter-defendants which is not due to be dismissed without further discovery."
The Department filed a petition for writ of mandamus in this court, requesting that we order the trial court to dismiss Rorer's counterclaim. It insists that the trial court erred in ...