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Alabama Department of Public Health v. Noland Health Services, Inc.

Alabama Court of Civil Appeals

July 27, 2018

Alabama Department of Public Health
v.
Noland Health Services, Inc.

          Appeal from Montgomery Circuit Court (CV-16-901506)

          MOORE, JUDGE.

         The Alabama Department of Public Health ("ADPH") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Noland Health Services, Inc. ("Noland"), on Noland's requests for declaratory and injunctive relief against ADPH. We dismiss the appeal.

         Procedural History

         On November 8, 2016, Noland filed a petition against ADPH seeking a judgment declaring:

"(1) That ADPH lacks the authority to apply [certain rules] to Adult Day Care Programs, including those provided by Noland;
"(2) That ADPH lacks the authority to enforce [the aforementioned rules] against Adult Day Care Programs, including those provided by Noland;
"(3) That ADPH lacks the authority to regulate Adult Day Care Programs, and therefore lacks the authority to take licensure action for or against Adult Day Care Programs, including those provided by Noland; and
"(4) That ADPH cannot require a provider like Noland to use licensed Certificate of Need authorized beds for adult day care services."

         After a trial, the trial court entered a judgment on November 30, 2017, awarding Noland declaratory and injunctive relief against ADPH. On January 10, 2018, ADPH filed its notice of appeal.

         Discussion

         On appeal, ADPH first argues that the trial court lacked jurisdiction over Noland's petition because, it says, ADPH is immune from suit. Although ADPH raises this argument for the first time on appeal, "'"[t]he assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu."'" Alabama Dep't of Conservation & Natural Res. v. Kellar, 227 So.3d 1199, 1201 (Ala. 2017) (quoting Health Care Auth. for Baptist Health v. Davis, 158 So.3d 397, 402 (Ala. 2013), quoting in turn Atkinson v. State, 986 So.2d 408, 411 (Ala. 2007)).

         In its brief to this court, ADPH cites our supreme court's decision in Kellar, in which our supreme court explained:

"'Article I, § 14, Alabama Const. of 1901, provides generally that the State of Alabama is immune from suit: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." This constitutional provision "has been described as a 'nearly impregnable' and 'almost invincible' 'wall' that provides the State an unwaivable, absolute immunity from suit in any court." Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006). Section 14 "specifically prohibits the State from being made a party defendant in any suit at law or in equity." Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally, un ...

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