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Ex parte City of Montgomery

Alabama Court of Civil Appeals

November 16, 2018

Ex Parte City of Montgomery
v.
City of Montgomery Police Department In re: Mellissa Smith

          Montgomery Circuit Court, CV-18-900131

          PETITION FOR WRIT OF MANDAMUS

          THOMAS, JUDGE.

         The City of Montgomery ("the City") petitions this court for the writ of mandamus directing the Montgomery Circuit Court to grant the City's summary-judgment motion, in which the City argued that the circuit court lacked subject-matter jurisdiction over the action at issue. We deny the City's petition.

         Background

         On December 17, 2017, a vehicle ("the vehicle") in the possession of Richard Smith was seized after Richard was arrested for an offense regarding illegal drugs. On January 23, 2018, Richard's wife, Mellissa Smith, filed a petition in the circuit court seeking a return of the vehicle. In relevant part, Mellissa alleged that the vehicle was in the City's possession.

         On March 19, 2018, the City filed a motion for a summary judgment, asserting that the vehicle had been seized by the federal Drug Enforcement Agency ("DEA") and was currently in the possession of the United States Marshals Service. The City further asserted that federal forfeiture proceedings regarding the vehicle had been initiated and that Richard and Mellissa had received notice of those proceedings on January 25, 2018; the City asserted that Mellissa had filed a "claim" with the DEA seeking a return of the vehicle. The City asked the circuit court for a

"judgment as a matter of law, or in the alternative, to dismiss this cause of action because the federal district court has original jurisdiction over the forfeiture action related to this vehicle and because [Mellissa] has been placed on notice and filed a claim with the federal government seeking return of the vehicle."

         In support of its factual assertions, the City attached to its motion an affidavit of P.A. Hill, an employee of the Montgomery Police Department who, during the relevant times, had been "assigned to the Montgomery DEA HIDTA Task Force."

         Mellissa filed a response in opposition to the City's motion, in which she also requested a summary judgment in her favor. In relevant part, Mellissa asserted that the vehicle had been seized by the Montgomery Police Department and that she had not received notice that it was in the federal government's possession until January 25, 2018, i.e., six weeks after it had been seized. She argued that, because the Montgomery Police Department had seized the vehicle, the City "should be responsible for returning [it]." Mellissa later supplemented many of the factual assertions set out in her response with an affidavit that she had executed and an affidavit executed by Richard.

         On September 10, 2018, the circuit court entered an order denying the City's summary-judgment motion. On October 5, 2018, the City filed in this court a petition for the writ of mandamus directing the circuit court to grant its summary-judgment motion, arguing that the circuit court lacks subject-matter jurisdiction over Mellissa's action. Mellissa answered the petition, noting that portions of the City's petition indicate that its position is based on immunity grounds and that the City did not assert immunity as a basis for relief in its summary-judgment motion. She argues that we should not issue the writ of mandamus because the circuit court must have denied the City's summary-judgment motion because it determined that a genuine issue of material fact existed.

         Analysis

         Although the essence of the argument set out in the City's petition is that the circuit court lacks subject-matter jurisdiction over Mellissa's action, it initially frames its position as one based on immunity in an effort to explain why this court can review the circuit court's denial of the City's summary-judgment motion at this stage in the proceedings; the City cites as support Ex parte Kennedy, 992 So.2d 1276, 1280 (Ala. 2008). However, in addition to questions of immunity, a challenge to the trial court's subject-matter jurisdiction is also an exception to the general rule prohibiting mandamus review of the denial of a summary-judgment motion. As our supreme court stated in Ex parte Hampton, 189 So.3d 14, 16 (Ala. 2015):

"'"Subject to certain narrow exceptions ..., we have held that, because an 'adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).'

"Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala. 2011). The narrow exceptions when mandamus review is available include when the petitioner challenges the subject-matter jurisdiction of the trial court, Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala. 2007), or when the petitioner asserts immunity. Ex parte Alabama Peace ...


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