from Montgomery Circuit Court (CV-16-901506)
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.
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
"(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."
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, 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)).
brief to this court, ADPH cites our supreme court's
decision in Kellar, in which our supreme court
"'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,