Circuit Court, CV-16-280 and CV-16-281)
PETITION FOR WRIT OF MANDAMUS
Gentry ("the father") seeks review of orders of the
Jefferson Circuit Court ("the trial court") entered
in consolidated grandparent-visitation actions filed by Nancy
Norris Schillaci ("the maternal grandmother") and
Ben Schillaci ("the maternal stepgrandfather") and
by Eddie Raymond Gentry ("the paternal
grandfather") and Robin Lynne Gentry ("the paternal
stepgrandmother"). The attachments to the father's
petition for the writ of mandamus and the answers filed with
this court reveal the following facts and procedural history.
father and his wife, Whitney Gentry, who died in February
2014, were the parents of three children. In August 2016, the
maternal grandmother and the maternal stepgrandfather filed a
complaint in the trial court seeking an award of visitation
with the children pursuant to Ala. Code 1975, §
30-3-4.2, which became effective on August 1, 2016.
See Act No. 2016-362, § 5, Ala. Acts 2016. That
same day, the paternal grandfather and the paternal
stepgrandmother filed a similar complaint. The trial court
consolidated the actions and appointed a guardian ad litem
for the children.
September 2016, the father moved to dismiss the actions. One
of the arguments the father asserted in his motion, as
amended, was that the maternal stepgrandfather and the
paternal stepgrandmother should be dismissed as parties to
their respective actions because, he contended, neither is a
"grandparent" as that term is defined in §
30-3-4.2(a)(1); therefore, the father argued, they lacked
"standing" to bring the actions under §
30-3-4.2(b). The trial court denied the father's motion
by order entered on October 3, 2016.
October 11, 2016, the guardian ad litem filed on behalf of
the children what she labeled as a "cross claim"
against the father. The "cross claim" contained
three counts: a request for a judgment declaring that the
children have a liberty interest in familial association with
their extended family and two identical counts requesting an
injunction requiring the father to permit continued
association between the children and their extended family.
Counts two and three asserted that the children's rights
to familial association had "been infringed under color
of state law."
father, on October 25, 2016, filed a motion to dismiss the
"cross claim, " in which he asserted various
arguments. At a hearing held on November 16, 2016, the trial
court orally granted the father's motion to dismiss
regarding counts two and three of the "cross claim"
but denied the motion as to count one, the
declaratory-judgment count. The trial court did not render or
enter a written order on the father's motion to dismiss.
December 1, 2016, the trial court entered an order directing
the circuit-court clerk to "place this entire case UNDER
SEAL" (capitalization in original). The December 1,
2016, order states no reason for the trial court's
decision to seal the cases. No party had moved for such
relief, and no hearing regarding the decision to seal the
cases had been held. The maternal grandmother and maternal
stepgrandfather state in their answer to the father's
petition for the writ of mandamus that the trial court, at a
hearing held on December 2, 2016, "addressed the order
sealing the [cases]." They further assert that the trial
court sealed the cases because the cases "involve
minor children and embarrassment or irreparable harm could
occur." No party has provided this court with
transcripts of any hearings before the trial court.
father filed his mandamus petition on December 2, 2016. In
that petition, he first seeks review of the trial court's
October 3, 2016, order denying his motion to dismiss the
maternal stepgrandfather and the paternal stepgrandmother
from the actions because, he contends, they are not
grandparents as defined in § 30-3-4.2(a)(1) and
therefore lack "standing" to bring the actions. He
also seeks review of the trial court's oral order denying
his motion to dismiss count one of the "cross
claim" brought by the guardian ad litem on behalf of the
children. Finally, the father seeks review of the trial
court's December 1, 2016, sua sponte order
sealing the consolidated cases.
first consider whether, insofar as he seeks review of the
trial court's October 3, 2016, order denying his motion
to dismiss the maternal stepgrandfather and the paternal
stepgrandmother from the actions, the father has timely
invoked our jurisdiction. As we have recently reiterated,
"Rule 21(a)(3), Ala. R. App. P., provides that a
petition for the writ of mandamus is presumptively timely if
it is filed within the period permitted for an appeal of a
judgment of the court in which the challenged order was
entered." Ex parte J.B., [Ms. 2151005, November
18, 2016] ___ So.3d ___, ___ (Ala. Civ. App. 2016). The
father filed his mandamus petition more than 42 days after
the entry of the October 3, 2016, order.
inquiry does not end there, however.
"[O]ur supreme court recently determined that, in
situations in which a petition for the writ of mandamus
challenges the subject-matter jurisdiction of the court in
which the challenged interlocutory order was rendered, the
petition need not timely invoke the jurisdiction of the
appellate court. Ex parte K.R., [Ms. 1141274, March
25, 2016] ___ So.3d ___, ___ (Ala. 2016). Instead, relying on
the principle that an appellate court may review the issue of
subject-matter jurisdiction regardless of whether that issue
was raised in the trial court or even on appeal, our supreme
court stated that subject-matter jurisdiction could be raised
ex mero motu at any time despite the lack of a timely filed
petition invoking the appellate court's jurisdiction.
Ex parte K.R., ___ So.3d at ___."
Ex parte J.B., ___ So.3d at ___.
father contends that he is challenging whether the maternal
stepgrandfather and the paternal stepgrandmother have
"standing" to bring an action under §
30-3-4.2(a)(1) because they do not fall within the definition
of "grandparent" contained in that section.
Standing, he correctly states, implicates subject-matter
jurisdiction. See Bernals, Inc. v. Kessler-Greystone,
LLC, 70 So.3d 315, 319 (Ala. 2011). Therefore, he says,
under Ex parte J.B., his failure to timely invoke
the jurisdiction of this court is not fatal to his petition
insofar as it challenges the October 3, 2016, order denying
his motion to dismiss.
disagree with the father that the maternal stepgrandfather
and the paternal stepgrandmother lacked standing to
be named as plaintiffs in the consolidated actions. Our
supreme court has indicated, in two plurality opinions, that
a majority of the supreme court recognized in Ex parte
BAC Home Loans Servicing, LP, 159 So.3d 31, 46 (Ala.
2013), that the concept of standing should be confined to
public-law cases. See Gardens at Glenlakes Prop. Owners
Ass'n, Inc. v. Baldwin Cty. Sewer Serv., LLC, [Ms.
1150563, September 23, 2016] ___ So.3d ___, ___ (Ala. 2016),
and Jakeman v. Lawrence Grp. Mgmt. Co., LLC, 151
So.3d 1083, 1087-88 (Ala. 2014). As explained in
Jakeman, "in private-law cases such questions
as whether '"the present plaintiff is ... entitled
to a remedy"' is '"better addressed through
private-law concepts"' such as
'"cause-of-action, real-party-in-interest, capacity,
intervention, and like concepts."'"
Jakeman, 151 So.3d at 1088 (quoting Ex parte
BAC, 159 So.3d at 44-45, quoting in turn 13A Charles
Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3531 (3d ed.
2008)). We need not decide whether the father's challenge
to the ability of the maternal stepgrandfather and the
paternal stepgrandmother to bring a grandparent-visitation
action is a challenge to their capacity or a claim that they
are not real parties in interest, see Dennis v. Magic
City Dodge, Inc., 524 So.2d 616, 618 (Ala. 1988)
(quoting 6 C. Wright & A. Miller, Federal Practice
and Procedure § 1542 (1971)) ("'[T]he real
party in interest principle is a means to identify the person
who possesses the right sought to be enforced. Therefore, the
term directs attention to whether plaintiff has a significant
interest in the particular action he has instituted. By way
of contrast, capacity is conceived to be a party's
personal right to litigate....'"), because a
challenge premised on either concept does not implicate the
trial court's subject-matter jurisdiction. See CAG
MLG, L.L.C. v. Smelley, 163 So.3d 346, 350 (Ala. 2014)
(indicating that capacity does not implicate subject-matter
jurisdiction); Ex parte Sterilite Corp. of Alabama,
837 So.2d 815, 819 (Ala. 2002) (stating that "objections
based upon an action's not being prosecuted in the name
of the real party in interest can be waived, " which
supports the conclusion that the real-party-in-interest issue
does not implicate ...