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Ex parte A.B.

Alabama Court of Civil Appeals

May 17, 2019

EX PARTE A.B.
v.
A.B. and R.L.D. In re: M.B. and J.B.

Page 834

         Madison Juvenile Court, JU-18-23.02

         PETITION FOR WRIT OF MANDAMUS

          Kristina Jill Sexton of NXTSTEP Family Law, PC, Huntsville, for petitioner.

         Marcus Helstowski of McDaniel & McDaniel, L.L.C., Huntsville, for respondents M.B. and J.B.

          Steve Marshall, atty. gen., and Felicia M. Brooks, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent Madison County Board of Education.

         EDWARDS, Judge.

         In January 2018, the Madison County Department of Human Resources ("DHR") filed in the Madison Juvenile Court ("the juvenile court") a petition seeking a determination that M.D. ("the child") was dependent in the care of A.B. ("the mother") and R.L.D. ("the father"); DHR's action was assigned case number JU-18-23.01 ("DHR's action"). In June 2018, J.B. and M.B. ("the custodians") filed a verified motion to intervene in DHR's action. In that motion, the custodians sought custody of the child, who, they averred, had been placed in their custody by a previous order entered by the juvenile court at DHR's recommendation. In September 2018, the juvenile court entered an order denying the custodians' motion to intervene, determining that the child "remain[ed]" dependent,[1] continuing legal custody in DHR, and ordering that the child remain in the physical custody of the custodians. The custodians did not appeal from the denial of their motion to intervene.

         In January 2019, the custodians commenced in the juvenile court a dependency action seeking custody of the child; that action was assigned case number JU-18-23.02 ("the custodians' action"). In March 2019, the custodians filed a motion requesting that the juvenile court consolidate the custodians' action with DHR's action. The mother and the father filed a joint motion on March 14, 2019, seeking to have the custodians' action dismissed on the ground of res judicata; they supported that motion with a copy of the custodians' motion to intervene that had been filed in DHR's action and the order denying that motion. After a hearing, the juvenile court entered an order on March 29, 2019, consolidating DHR's action and the custodians' action.

         The mother filed her petition for the writ of mandamus on April 10, 2019.[2] She argues that the juvenile court erred in denying the "motion to dismiss" filed by her and the father because, she says, the denial of the custodians' motion to intervene in DHR's action was an adjudication on the merits of their request for custody and because, she says, the custodians failed to appeal the denial of their motion

Page 835

to intervene and, therefore, the continuation of the custodians' action is precluded by the doctrine of res judicata. We disagree and deny the mother's petition.

         We first note that the "motion to dismiss" filed by the mother and the father was not, in fact, a motion to dismiss. Our supreme court has explained that "although, `[i]n some instances, res judicata may be properly raised by means of a motion to dismiss ... [it is] more commonly [raised] through a motion for a summary judgment.'" Ex parte Scannelly, 74 So.3d 432, 439 (Ala. 2011) (quoting Wilger v. State Dep't of Pensions & Sec., 390 So.2d 656, 657 (Ala.Civ.App. 1980)). The affirmative defense of res judicata typically requires proof of a prior litigation, which is often not clear from the face of a complaint. See 1 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 12.7, p. 304 (4th ed. 2004) ("[The defense of res judicata is] generally considered appropriately raised by a motion to dismiss only in a context where the defect appears on the face of the complaint."). In most cases, therefore, a motion to dismiss on the ground of res judicata is supported by attachments, which converts it into a motion for a summary judgment. See Ex parte Webber, 157 So.3d 887, 891 (Ala. 2014) (treating a motion to dismiss supported by a copy of a prior judgment as a motion for a summary judgment on the affirmative defense of res judicata); Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 792 (Ala. 2007) (construing a motion to dismiss based on res judicata and collateral-estoppel grounds to be a motion for a summary judgment on those affirmative defenses and noting that "the trial court clearly considered matters outside the pleadings in making its determination, thus converting the Rule 12(b)(6)[, Ala. R. Civ. P.,] motion to dismiss into a Rule 56, Ala. R. Civ. P., summary-judgment motion"); see also Rule 12(b), Ala. R. Civ. P.

         The "motion to dismiss" filed by the mother and the father was supported by copies of the custodians' motion to intervene in DHR's action and the order denying that motion. The complaint filed by the custodians did not reference DHR's action or the custodians' motion to intervene in that action. We therefore conclude that the "motion to dismiss" was, in fact, a motion for a summary judgment. See Ex parte Webber, 157 So.3d at 891.

         A petition for the writ of mandamus is a proper vehicle for seeking review of the denial of a motion for a summary ...


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