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Walker Brothers Investment, Inc. v. City of Mobile

Supreme Court of Alabama

September 15, 2017

Walker Brothers Investment, Inc., and James Walker
City of Mobile, Mobile Historic Development Commission, and Architectural Review Board of the City of Mobile

         Appeal from Mobile Circuit Court (CV-12-901596)

          BRYAN, Justice.

         Walker Brothers Investment, Inc., and James Walker (hereinafter referred to collectively as "Walker Brothers") appeal from an order entered by the Mobile Circuit Court granting a motion for a summary judgment filed by the City of Mobile ("the City"). In response to a motion to clarify that its summary-judgment order applied to the Mobile Historic Development Commission ("the HDC") and the Architectural Review Board of the City of Mobile ("the Board"), the circuit court entered an order stating that those agencies "were not properly added to this lawsuit" and dismissing the complaint and the counterclaims.[1] For the reasons set forth herein, we dismiss the appeal.

         Procedural History

         On July 26, 2012, the City filed a complaint against Walker Brothers seeking a preliminary and a permanent injunction. In its complaint, the City alleged that Walker Brothers owned a building, known as the Tobin Building, located in a historic district in downtown Mobile and that Walker Brothers had allowed the building to deteriorate in violation of the Mobile City Code; the City asked the circuit court to enter an order requiring Walker Brothers to "mothball"[2] the Tobin Building in accordance with plans submitted by Walker Brothers and subsequently approved by the Board on November 16, 2011. On August 7, 2012, the circuit court set the City's request for a preliminary injunction for a hearing on September 5, 2012; the circuit court took some testimony at that hearing but continued the remainder of the hearing until September 12, 2012.

         On September 11, 2012, the City filed a motion to dismiss, alleging that, since the filing of their complaint, Walker Brothers had mothballed the Tobin Building as the City had requested. The City stated that "there no longer exists a justiciable controversy" between the parties, and it asked the court to "enter an order finding that the case has become moot and that [the City]'s complaint be dismissed without prejudice."

         Later on September 11, 2012, Walker Brothers filed an answer to the City's complaint and a counterclaim alleging "unequal and unfair enforcement of applicable laws." Walker Brothers argued that the City, through the HDC and the Board, had treated Walker Brothers unequally from other developers of historic properties, and it alleged that the City had engaged in selective enforcement of the City's rules and regulations in a manner that "amounted to malicious prosecution and abuse of process." The same day, Walker Brothers also filed an objection to the City's motion to dismiss, stating that it had intentionally left part of the mothballing plan uncomplete so that it could file a counterclaim against the City. The circuit court purported to grant the City's motion to dismiss later the same day.

         Still on September 11, 2012, Walker Brothers filed a motion to reconsider the circuit court's order dismissing the City's complaint. On October 11, 2012, the City filed an affidavit from Devereaux Bemis, the director of the HDC, in "support" of its motion to dismiss. Bemis testified that from September 5 through September 11 Walker Brothers had voluntarily mothballed the Tobin Building and, after he inspected the property on September 11, he determined that Walker Brothers had "substantially and satisfactorily mothballed the buildings in accordance with plans submitted" by Walker Brothers as requested in the City's complaint.

         On October 12, 2012, the circuit court entered an order granting Walker Brothers' motion to reconsider its order dismissing the City's complaint; the circuit court stated that Walker Brothers' counterclaim was "reinstated and [the City]'s motion to dismiss is granted without prejudice."

         Walker Brothers subsequently obtained leave of the circuit court to file an amended counterclaim, which it did on March 12, 2013. In its amended counterclaim, Walker Brothers reasserted the claim raised in its original counterclaim and added a claim against the City, the HDC, the Board, and several fictitiously named parties. In this second claim, Walker Brothers alleged that the actions of the City, the HDC, and the Board in interpreting and enforcing rules, regulations, and ordinances were arbitrary, capricious, and discriminatory against Walker Brothers and that those actions, it said, "violated the equal protection clause of the Alabama and United States Constitutions." The City, the HDC, and the Board filed a joint answer to the amended counterclaim on March 26, 2013.

         The City filed a motion for a summary judgment, arguing that Walker Brothers could not prevail on its selective- enforcement equal-protection claim because, it said, Walker Brothers was not, nor did it allege to be, a member of a suspect class. After Walker Brothers filed a response and the City, the HDC, and the Board replied, the circuit court granted the City's summary-judgment motion. The circuit court subsequently entered a series of orders clarifying that it had ruled on each of Walker Brothers' counterclaims and that all Walker Brothers' claims against all parties had been denied. Walker Brothers timely appealed.


         Initially, we must address a jurisdictional argument raised by the City, the HDC, and the Board (hereinafter referred to collectively as "the appellees"). The appellees contend that the appeal is due to be dismissed because Walker Brothers' counterclaim was filed after the City voluntarily dismissed its complaint pursuant to Rule 41(a)(1)(i), Ala. R. Civ. P., and the appellees contend that, therefore, the circuit court lost power to take any further action in the case, including considering Walker Brothers' counterclaim, after the City filed its motion to dismiss on September 11, 2012. See generally Ex parte Sealy, L.L.C., 904 So.2d 1230, 1236 (Ala. 2004) (holding, where defendant filed a counterclaim against the plaintiff after the plaintiff had filed a notice of dismissal pursuant to Rule 41(a)(1)(i), that the notice of dismissal filed by the plaintiff "deprived the trial court of the power to proceed further with the action and rendered all orders entered after its filing void"). Rule 41(a)(1) provides:

"(a) Voluntary Dismissal; Effect Thereof.
"(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice ...."

         This Court discussed Rule 41(a)(1)(i) recently in Synovus Bank v. Mitchell, 206 So.3d 568 (Ala. 2016). In that case, the plaintiff, Synovus Bank, filed a stipulation of dismissal, purportedly pursuant to Rule 41(a)(1)(ii). However, because the defendant had not served Synovus with an answer or a motion for a summary judgment, this Court held that the stipulation of dismissal satisfied Rule 41(a)(1)(i). In this regard, the Court stated:

"Rule 41(a)(1)(i) expressly provides that a plaintiff need only file with the court a notice of dismissal to dismiss his or her action if the defendant has not served the plaintiff with an answer or a motion for a summary judgment. Such notice of dismissal, once filed with the court, automatically dismisses the action; no subsequent order of the court is required. Riverstone [Dev. Co. v. Nelson], 91 So.3d [678, ] 681 [(Ala. 2012)] ('If the conditions of Rule 41(a)(1) are satisfied, dismissal is automatic, that is, "[n]o order of the court is required.... [and] the notice [of dismissal] terminates the action...."' (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2363, at 439-41 (3d ed. 2008))). In this case, it is undisputed that [the defendant] never filed an answer or a motion for a summary judgment. Thus, in order to dismiss the action, Synovus needed only to file with the trial court notice that it desired to dismiss the action; neither [the defendant]'s consent nor a court order was required.
"Although Rule 41(a)(1)(i) states that a plaintiff may dismiss an action by filing a 'notice of dismissal, ' the rule does not prescribe specific, technical requirements for the form of that notice. In Reid v. Tingle, 716 So.2d 1190 (Ala. Civ. App. 1997), the Court of Civil Appeals held that a letter written from the plaintiff to her attorney instructing the attorney to '"dismiss this lawsuit immediately"' met the requirements of Rule 41(a)(1)(i) 'in that it [gave] notice of the plaintiff's desire to dismiss the action, and it was filed with the clerk's office.' 716 So.2d at 1192-93. The United States Court of Appeals for the Eleventh Circuit has held that a filing styled as a 'motion to dismiss' that indicated that the plaintiff would refile the action in state court constituted a notice of dismissal for purposes of Rule 41(a)(1)(A)(i), Fed. R. Civ. P., which is substantially similar to ...

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