July 24, 2015
Southeast Alabama Medical Center
for Publication April 28, 2016.
from Houston Circuit Court. (CV-14-71). Brady E. Mendheim,
Appellant: Mitchell D. Dobbs of Legal Services Alabama, Inc.,
Thomas, and Donaldson, JJ., concur. Moore, J., dissents, with
writing, which Thompson, P.J., joins.
Alabama Medical Center (" SAMC" ) sued Jaquala
Wilson in the Houston District Court, small-claims division,
seeking a judgment for past-due medical bills Wilson had
failed to pay. The district court entered a judgment in favor
of SAMC, and Wilson filed a notice of appeal to the Houston
Circuit Court, together with an affidavit of financial
hardship seeking a waiver of the requirement of prepayment of
the filing fee, also known as a request to proceed in forma
pauperis (" IFP request" ), on July 23,
also filed a demand for a trial by jury. The circuit court
denied Wilson's IFP request on July 23, 2014, and it
ordered that she pay the filing fee for her appeal within 14
days. Wilson paid what she characterized as the $100
jury-demand fee, but, on August 7, 2014, she sought
reconsideration of the circuit court's denial of her IFP
request. The circuit court refused to reconsider its denial
of Wilson's IFP request, and it ordered that Wilson pay
the " balance" of the filing fee within 30 days.
filed a motion for a summary judgment on August 19, 2014.
Wilson filed a second motion seeking reconsideration of the
circuit court's denial of her IFP request on September 8,
2014. On the same date, the circuit court refused to
reconsider its denial of Wilson's IFP request, but it
granted Wilson an additional 14 days to pay the "
remainder" of the filing fee. Wilson responded to
SAMC's motion for a summary judgment on September 25,
2014, and the trial court entered an order on September 29,
2014, stating that it would consider the summary-judgment
motion once Wilson paid the " remainder" of the
filing fee. That same order required Wilson to pay the "
remainder" of the filing fee within 30 days or face
dismissal of her appeal.
November 3, 2014, the circuit court entered an order
dismissing Wilson's appeal for lack of subject-matter
jurisdiction, stating specifically that it lacked
jurisdiction over the appeal because Wilson had not paid the
required filing fee. Wilson timely appealed the dismissal of
her appeal to the circuit court to this court, arguing that
the circuit court erred in failing to grant her IFP request
and in concluding that it lacked jurisdiction over her
appeal. We affirm.
first consider Wilson's argument that the circuit court
erred by failing to grant Wilson's IFP request. A trial
court's decision to deny an IFP request is reviewed for
an abuse of discretion. See Ex parte Wyre, 74 So.3d
479 (Ala. 2011); Ex parte Holley, 883 So.2d 266, 269
brief on appeal, Wilson first argues that the denial of her
IFP request conflicts with former Ala. Code 1975, §
30-5-5(f), which, before its amendment in 2003, governed the
determination of IFP
status for plaintiffs seeking relief under the Protection
from Abuse Act, codified at Ala. Code 1975, § 30-5-1 et
seq. Former § 30-5-5(f) stated that receipt of "
Aid to Families with Dependent Children payments, food
stamps, or Supplemental Security Income shall serve as prima
facie evidence demonstrating substantial hardship on the part
of the plaintiff." Wilson acknowledges that §
30-5-5(f) has since been amended, but she argues that the
former statute embodied a legislative policy " to be
employed by courts when considering affidavits of substantial
hardship and requests for waiver of filing fees. Receiving
food stamps should serve as prima facie evidence
demonstrating financial hardship." Section 30-5-5(f) no
longer refers to food stamps or other aid as a benchmark for
determining IFP status. Even if § 30-5-5(f) read as it
did before its 2003 amendment, however, Wilson's argument
would still be unconvincing. Section 30-5-5(f), before its
amendment in 2003, governed the assessment of filing fees for
petitions seeking protection from abuse. Wilson is pursuing
an appeal from a debt-collection action, not a
protection-from-abuse order. Thus, we cannot agree that
former § 30-5-5(f) provides a basis for reversal of the
circuit court's denial of Wilson's IFP request.
next argues that constitutional law provides a basis for
reversal of the denial of her IFP request. She relies mainly
on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct.
780, 28 L.Ed.2d 113 (1971), in which the United States
Supreme Court held that indigent litigants could not be
foreclosed from pursuing divorce actions by the requirement
that they prepay a filing fee. Wilson's
constitutional arguments were not raised in the circuit
court; thus, we need not consider Wilson's constitutional
arguments further. See Robinson v. State, 587 So.2d
418, 419 (Ala.Civ.App. 1991) (stating that an appellate court
will not consider a constitutional issue that was not first
presented to the trial court). We note, however, that
Wilson's argument is unavailing, in part because Wilson
is not seeking a divorce and because Boddie does not provide
a basis for reversing the circuit court's denial of
Wilson's IFP request in an appeal from a debt-collection
Neither of Wilson's arguments on appeal assail the
circuit court's discretion in determining whether to
grant or deny Wilson's IFP request. Her reliance on
former § 30-5-5(f) is misplaced, and her constitutional
argument was not raised in the trial court. Accordingly,
because Wilson does not argue that the circuit court abused
its discretion in denying her IFP request, we affirm the
circuit court's order denying that request without
considering whether the circuit court properly exercised that
discretion. See Boshell v. Keith, 418 So.2d
89, 92 (Ala. 1982) ( " When an appellant fails to argue
an issue in its brief, that issue is waived." ).
turn to Wilson's argument that the trial court erred by
dismissing her appeal from the district court because, she
contends, the payment of a filing fee is not a jurisdictional
requirement to perfect an appeal from the district court to
the circuit court. Wilson relies chiefly on Finch v.
Finch, 468 So.2d 151 (Ala. 1985), in which our supreme
court considered whether the payment of a filing fee within
the applicable appeal period was required to perfect an
appeal from the probate court to the circuit court.
" Rule 7, Alabama Rules of Judicial Administration,
provides that 'Any filing for which there is no express
cost under the consolidated fee structure shall be treated as
an original filing for cost purposes.' The Court of Civil
Appeals has held, and the Clerk of this Court has given the
opinion, that the filing of an appeal in the circuit court
from a district court judgment is an original filing within
the meaning of Rule 7 and requires the filing fee prescribed
in § § 12-19-70 and -71. Hand v.
Thornburg, 425 So.2d 467 (Ala.Civ.App. 1982), cert.
denied, 425 So.2d 467 (Ala. 1983); Scott v.
Kimerling, 417 So.2d 204 (Ala.Civ.App. 1982), cert.
quashed, 417 So.2d 204 (Ala. 1982); Opinion of the Clerk No.
16, 362 So.2d 1259 (Ala. 1978).
" The Clerk based his opinion on cases establishing that
an appeal is a new statutory proceeding in the appellate
court. Ohio Cas. Ins. Co. v. Gantt, 256 Ala. 262, 54
So.2d 595 (1951); Anders Bros. v. Latimer, 198 Ala.
573, 73 So. 925 (1917); Cook v. Adams, 27 Ala. 294
(1855); Mazange v. Slocum & Henderson, 23 Ala. 668
" The Court of Civil Appeals has further held that
appeals from district to circuit court require timely notice
of appeal in the district court, payment of the filing fee in
the circuit court, and security for costs or affidavit of
hardship as provided in Rule 62(dc)(5), A[la]. R. Civ. P.
Gomillion v. Whatley Supply Co., 446 So.2d 52
(Ala.Civ.App. 1984); Hardeman v. Mayfield, 429 So.2d
1097 (Ala.Civ.App. 1983); Hand v. Thornburg, supra;
and Scott v. Kimerling, supra. Section 12-12-70,
which provides for such appeals, mentions only the notice of
appeal and the security for costs.
" Gomillion and Hardeman involved the failure to file a
bond for costs; Hand involved the adequacy of such a bond.
Only in Scott does the payment of filing fees appear to have
been at issue. In that case, the appellants 'refuse[d] to
post any bond or pay any money to enjoy [the] right to trial
by jury.' 417 So.2d at 204. The Court of Civil Appeals
held that the trial court committed no error in dismissing
" The holding that appeals from district court to
circuit court require a filing fee in the circuit court
should be extended to appeals from probate court to circuit
court. It does not necessarily follow, however, that the
circuit court was correct in dismissing the appeal. Nothing
in the above-cited authorities establishes that the payment
of filing fees
in the circuit court within the time allowed for appeal is a
jurisdictional requirement for perfecting such an appeal.
Section 12-22-25 requires security for costs in appeals such
as this one, but specifically states that 'the filing of
security for costs is not a jurisdictional prerequisite.'
By the same token, although payment of a filing fee is
required, we do not find a jurisdictional defect in this case
for failure to pay the fee within the time allowed for the
Finch, 468 So.2d 153-54 (footnote omitted; emphasis
holding in Finch was reaffirmed in De-Gas, Inc. v.
Midland Resources, 470 So.2d 1218, 1222 (Ala. 1985).
Although the De-Gas court determined that the payment of a
filing fee at the time a complaint is filed is " a
jurisdictional prerequisite to the commencement of an action
for statute of limitations purposes," De-Gas, 470 So.2d
at 1222, the court noted that the holding in Finch was not
contrary to its decision. According to the De-Gas court, a
main reason for requiring payment of the filing fee at the
time the complaint is filed is to make certain that the
defendant is provided judicial notice that an action has been
filed against him, which cannot occur until the action is
commenced and service is made upon the defendant.
Id. at 1221. However, our supreme court explained,
" [w]here an appeal is involved, the non-appealing party
is already well aware of the existence of the action.
Further, although a filing fee is required in an appeal,
there is no provision requiring the payment of the fee at the
time the appeal is filed." Id. at
is correct that her failure to pay the filing fee at the time
she filed her notice of appeal was not a jurisdictional
defect requiring dismissal of her appeal. However, although
it indicated in its order that Wilson's failure to pay
the filing fee was a jurisdictional defect, the circuit court
did not actually dismiss Wilson's appeal for her failure
to pay the filing fee at the time she filed her notice of
appeal. In total, the circuit court permitted Wilson 98 days
to pay the filing fee. Although Finch holds that "
failure to pay the [filing] fee within the time allowed for
the appeal" is not a jurisdictional defect, 468 So.2d at
154, it is abundantly clear that a filing fee must be paid
for the appeal to the circuit court. See Hand v.
Thornburg, 425 So.2d 467, 468 (Ala.Civ.App. 1982)
(" [T]he party taking the appeal [from a civil judgment
of the district court to the circuit court] must pay the
docket fee for the new filing in the circuit court or be
excused from such payment because of substantial
hardship." ); Scott v. Kimerling, 417 So.2d
204, 205 (Ala.Civ.App. 1982) (concluding that a party taking
an appeal from a judgment of the district court to the
circuit court must pay appropriate costs under Ala. Code
1975, § 12-12-70(a), which includes payment of a filing
fee equivalent to the fee for a new filing under Ala. Code
1975, § 12-19-71); see also Rule 62(dc)(5), Ala. R. Civ.
P., and the District Court Committee Comments to Rule 62
(modifying the requirements for a stay pending appeal under
Rule 62(d) in the district courts to " require only a
bond for costs or an affidavit of substantial hardship,
approved by the court, in lieu of said bond" and
explaining in the comments
that " the costs referred to herein relate to costs
incurred in the district court since the payment of a new
filing fee in the circuit court is necessary in order to
prosecute de novo review in that court" ).
circuit court ordered Wilson to pay the filing fee by October
29, 2014. Wilson failed to comply with that order. The
circuit court was empowered to dismiss Wilson's complaint
for her failure to pay the filing fee as required by the
circuit court's lawful order by Rule 41(b), Ala. R. Civ.
P., which permits a trial court to dismiss an action "
[f]or failure of the plaintiff ... to comply with ... any
order of court." Because a filing fee is required by
§ 12-12-70(a), and because Wilson failed to remit the
filing fee as required by the circuit court's September
29, 2014, order, the circuit court had the authority to
dismiss Wilson's appeal. " We can affirm a judgment
on a basis not asserted to the trial court, and we can affirm
a judgment if we disagree with the reasoning of the trial
court in entering the judgment, as long as the judgment
itself is proper." Progressive Specialty Ins. Co. v.
Hammonds, 551 So.2d 333, 337 (Ala. 1989).
conclusion, we affirm the circuit court's order denying
Wilson's IFP request. Although Wilson is correct that her
failure to pay the filing fee at the time she filed her
notice of appeal is not a defect that deprived the circuit
court of jurisdiction over her appeal from the district
court's judgment, the circuit court properly dismissed
her appeal based upon her failure to pay the filing fee as
required by the circuit court's previous orders. The
circuit court's judgment dismissing Wilson's appeal
is therefore affirmed.
Thomas, and Donaldson, JJ., concur.
J., dissents, with writing, which Thompson, P.J., joins.
main opinion acknowledges that the Houston Circuit Court
(" the trial court" ) erred by dismissing Jaquala
Wilson's appeal for lack of subject-matter jurisdiction.
__So.3d at__. Nevertheless, the main opinion purports to
affirm the dismissal on a ground upon which the trial court
did not rely, namely, that Wilson did not pay the filing fee
for her appeal despite numerous orders entered by the trial
court requiring her to do so.
main opinion first posits that the failure to pay a filing
fee constitutes a valid legal ground for dismissal under
Scott v. Kimerling, 417 So.2d 204 (Ala.Civ.App.
1982). However, in Finch v. Finch, 468 So.2d 151
(Ala. 1985), our supreme court held that the nonpayment of a
filing fee at the time of an appeal from probate court to
circuit court does not affect the jurisdiction of the circuit
court over the appeal. In reaching that decision, the supreme
court specifically discussed Scott and rejected any notion
that appeals from district court to circuit court require the
immediate payment of a filing fee. 468 So.2d at 154 ("
Nothing in the above-cited authorities establishes that the
payment of filing fees in the circuit court within the time
allowed for appeal is a jurisdictional requirement for
perfecting such an appeal." ). Under Finch, the fact
that Wilson did not pay the filing fee does not, in and of
itself, constitute a valid legal ground for dismissal.
main opinion next reasons that, because Wilson did not pay
the fee, the trial court " was empowered to dismiss
Wilson's complaint ... by Rule 41(b), Ala. R. Civ. P.,
which permits a trial court to dismiss an action '[f]or
failure of the plaintiff ...
to comply with ... any order of court.'" __So.3d at
__. However, this court may affirm a judgment only on a
" valid legal ground presented" by the record.
Warren v. Hooper, 984 So.2d 1118, 1121 (Ala. 2007).
Rule 41(b) merely permits a trial court to dismiss a case due
to a violation of its orders; the rule does not require
dismissal for such violations. See Ex parte Folmar
Kenner, LLC, 43 So.3d 1234 (Ala. 2009). Whether to
dismiss a case under Rule 41(b) for violation of court orders
rests solely within the discretion of the trial court whose
order is violated. Id. Hence, the mere fact that
Wilson did not comply with the trial court's orders to
pay the filing fee also does not prove that Southeast Alabama
Medical Center was entitled to a dismissal of Wilson's
appeal as a matter of law or support this court's
decision to affirm for that reason.
We note that appeals in small-claims
actions are governed by Rule M of the Alabama Small Claims
Rules, which states:
" A judgment may be appealed to the circuit
court by the filing of a notice of appeal in the office of
the clerk of the small claims court within fourteen days
from the date of the judgment and by furnishing a bond or
cash as security for costs incurred in the small claims
court, or affidavit of substantial hardship, approved by
the court, in place of said bond. Notice of the right to
appeal shall be given to the losing party."
The statute governing appeals from district court to
circuit court, generally, Ala. Code 1975, §
12-12-70(a), states, in pertinent part:
" Any party may appeal from a final judgment of
the district court in a civil case by filing notice of
appeal in the district court, within 14 days from the date
of the judgment or the denial of a post trial motion,
whichever is later, ... together with security for costs as
required by law or rule."
The main distinction between Rule M and §
12-12-70(a) appears to be that an appeal from a
small-claims action requires as security for costs only an
amount to cover the " costs incurred in the small
claims court." Rule M. An appeal from district court
to circuit court under § 12-12-70(a), however,
requires security for costs in an amount sufficient
to cover both the costs incurred in the district court and
the costs to be incurred in the circuit-court appeal. See
Hand v. Thornburg, 425 So.2d 467, 469
(Ala.Civ.App. 1982) (citing Clary v. Cassels, 258
Ala. 183, 61 So.2d 692 (1952)) (holding that the term
" security for costs" in § 12-12-70(a)
" means that security is required for all of the costs
of appeal, including those incurred in the district court
and not just the costs in the circuit court" ).
Because the issues in the present case do not involve
security for costs, the differences in the
security-for-costs requirements of Rule M and §
12-12-70(a) are not relevant to our inquiry.
Furthermore, because Wilson did not mention Rule M in her
brief on appeal and instead relies on § 12-12-70(a),
we will analyze the issues under § 12-12-70(a) and
will not consider whether Rule M might dictate a different
outcome. See Hand, 425 So.2d at 468 (listing the "
essential requirements of an appeal from a civil judgment
of the district court (other than from a small claims
judgment) to the circuit court" (emphasis added)).
Ala. Code 1975, § 12-19-71(a)(13) (assessing an
additional fee of $100 to be paid when a party makes a jury
Section 30-5-5(f) currently reads: "
No court costs and fees shall be assessed for the filing and
service of a petition for a protection order, for the
issuance or registration of a protection order, or for the
issuance of a witness subpoena under this chapter."
Wilson also relies on Williams v.
Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d
440 (1969), Roberts v. La Vallee, 389 U.S. 40, 88
S.Ct. 194, 19 L.Ed.2d 41 (1967), Long v. District Court
of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290
(1966), Draper v. State of Washington, 372 U.S. 487,
83 S.Ct. 774, 9 L.Ed.2d 899 (1963), Douglas v.
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811
(1963), Smith v. Bennett, 365 U.S. 708, 81 S.Ct.
895, 6 L.Ed.2d 39 (1961), Burns v. Ohio, 360 U.S.
252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, 84 Ohio Law Abs. 570
(1959), and Griffin v. Illinois, 351 U.S. 12, 76
S.Ct. 585, 100 L.Ed. 891 (1956), all of which concerned the
rights of a convicted defendant or an incarcerated prisoner
to access to the courts to pursue an appeal or a petition for
a writ of habeas corpus; thus, we find these cases
Wilson's reliance on Boddie is also
unavailing because the United States Supreme Court stated in
Boddie that " [w]e do not decide that access for all
individuals to the courts is a right that is, in all
circumstances, guaranteed by the Due Process Clause of the
Fourteenth Amendment so that its exercise may not be placed
beyond the reach of any individual." 401 U.S. at 382. As
the United States Supreme Court later observed in United
States v. Kras, 409 U.S. 434, 449, 93 S.Ct. 631, 34
L.Ed.2d 626 (1973), in Boddie " [t]he Court obviously
stopped short of an unlimited rule that an indigent at all
times and in all cases has the right to relief without the
payment of fees."
Thus, our supreme court's recent
determination in Ex parte Courtyard Citiflats, LLC, [Ms.
1140264, June 12, 2015] __ So.3d__, __ , *7(Ala. 2015), that
an IFP request must be approved before the running of the
statute of limitations to preserve a plaintiff's claim
has no impact on our consideration whether the circuit court
in the present case properly concluded that Wilson's
appeal was due to be dismissed based on her failure to pay
the filing fee after her IFP request was denied.