Ex parte Cooper
| Docket Number | SC-2023-0056,SC-2023-0354,SC-2023-0364 |
| Decision Date | 25 August 2023 |
| Parties | Ex parte John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation v. John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation, and Scott Bridge Company, Inc. In re: Baldwin County Bridge Company, LLC John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation v. Baldwin County Bridge Company, LLC Scott Bridge Company, Inc. v. Baldwin County Bridge Company, LLC |
| Court | Alabama Supreme Court |
Appeal from Montgomery Circuit Court, CV-22-901306
PETITION FOR WRIT OF MANDAMUS
Baldwin County Bridge Company, LLC ("BCBC"), filed suit against John R. Cooper, in his official capacity as Director of the Alabama Department of Transportation ("ALDOT"), seeking to halt construction of a bridge that ALDOT had hired Scott Bridge Company, Inc. ("Scott Bridge"), to build over the Intracoastal Waterway in Baldwin County. BCBC later added Scott Bridge as a defendant. That lawsuit has since spawned three matters that are now pending before this Court.
In the first matter, Cooper seeks mandamus relief because the trial court entered an order compelling him to respond to certain discovery requests made by BCBC; he argues that the information sought is protected from disclosure by the executive-privilege doctrine. On Cooper's motion, we stayed enforcement of the trial court's discovery order to allow us to consider his privilege argument.
Meanwhile the trial-court proceedings continued and, before we were able to rule on Cooper's mandamus petition, the trial court granted BCBC's motion for a preliminary injunction to halt construction of the bridge. Cooper has appealed that injunction, arguing that it was unwarranted and that the $100,000 preliminary-injunction bond put up by BCBC was insufficient. Scott Bridge has filed its own appeal challenging the preliminary injunction, while also arguing that the trial court erred by dismissing it from the case and by stating that it is not entitled to the protection of an injunction bond.
After reviewing the briefs submitted by the parties in all three of these matters, we now conclude that BCBC's claim on which the preliminary injunction is based is barred by State immunity. Accordingly, the trial court has no subject-matter jurisdiction over that claim and the preliminary injunction must be reversed. Although we rule in favor of Cooper on this point, we reject his companion argument that the trial court should be directed to increase the $100,000 preliminaryinjunction bond on remand. We also reject Scott Bridge's argument that that it is entitled to recover on the preliminary-injunction bond. Finally, because the discovery that Cooper seeks to withhold based on executive privilege is being sought in conjunction with the claim that is barred by State immunity, the trial court's order compelling Cooper to produce that information is moot, as is Cooper's petition challenging that order.
BCBC is a private company that operates the Beach Express Bridge ("the BEX Bridge"), a toll bridge that crosses the Intracoastal Waterway in Orange Beach. There is one other bridge over the Intracoastal Waterway in Baldwin County, Holmes Bridge, which is located on Highway 59 in Gulf Shores about four miles west of the BEX Bridge. These are the only two bridges crossing the Intracoastal Waterway in Alabama.
After becoming Director of ALDOT in 2011, Cooper approached BCBC about the possibility of ALDOT's buying the BEX Bridge and removing the toll to make it a free public bridge. Cooper says that this inquiry and ALDOT's ongoing interest in purchasing the BEX Bridge was always motivated by a desire to reduce congestion on Holmes Bridge and Highway 59 caused by people unwilling to pay the BEX Bridge's toll. BCBC disputes this; it says that Cooper was actually motivated by his dislike of the deal the State struck with BCBC in 1996, which granted BCBC a license to set and collect tolls on the BEX Bridge in perpetuity. In any event, after BCBC rebuffed ALDOT's interest, Cooper decided to revisit an idea ALDOT had once considered -- building a third bridge over the Intracoastal Waterway between the BEX Bridge and Holmes Bridge.
For about a decade, Cooper and ALDOT continued on a dual track, negotiating with BCBC and its corporate owners about the BEX Bridge, while also making plans to build a third bridge.[1]It is undisputed that BCBC has been aware that Cooper was making plans to build a third bridge since at least 2015. Nonetheless, negotiations concerning the BEX Bridge continued until October 2022, at which point the State entered into a formal contract with Scott Bridge for construction of the third bridge.[2]Six days later, BCBC filed suit in the Montgomery Circuit Court, asserting (1) a bad-faith claim seeking an injunction to stop construction of the third bridge and (2) an inverse-condemnation claim requesting compensation from the State for the value of the BEX Bridge. See Ex parte Neely, 653 So.2d 945, 946 (Ala. 1995) (). The theory underlying both claims was that Cooper wanted to construct the third bridge -- not to alleviate traffic congestion in Baldwin County -- but to intentionally harm BCBC and to destroy the value of the BEX Bridge. After Scott Bridge began initial construction work on the third bridge, BCBC amended its complaint to add Scott Bridge as a necessary defendant.
In conjunction with its complaint, BCBC served discovery requests on Cooper seeking, among other things, records of all communications ALDOT had engaged in relevant to the bridge dispute, including (1) intraoffice communications between ALDOT employees and (2) communications between ALDOT and other State and local government officials, including Governor Kay Ivey and her office. After Cooper objected to this request, arguing that much of the information sought was protected from disclosure by executive privilege,[3] BCBC moved the trial court to compel him to turn over the requested information. Cooper opposed that motion and moved the trial court to enter a protective order. Following a hearing, the trial court granted BCBC's motion and ordered Cooper to produce unredacted copies of all documents being withheld on the basis of executive privilege.
Cooper then petitioned this Court for a writ of mandamus. In his petition, he asked us to direct the trial court to vacate its order compelling him to produce the requested discovery and to instead enter an order granting his motion for a protective order. Cooper simultaneously filed a motion asking us to stay the trial court's discovery order until we ruled on his mandamus petition. We granted that request and ordered a limited stay to allow us to consider the issues raised in Cooper's petition.
While this discovery dispute was playing out, proceedings continued below and BCBC moved for a preliminary injunction that would prohibit Cooper and Scott Bridge from continuing construction on the third bridge. Before responding to that motion, Cooper moved to dismiss BCBC's complaint on various grounds, including State immunity and BCBC's alleged failure to state a claim upon which relief could be granted.
Scott Bridge filed its own motion to dismiss, arguing that it was not an indispensable party to the case. But two weeks later Scott Bridge withdrew that motion, arguing that it would be irreparably injured if a preliminary injunction halting construction of the third bridge was entered. Scott Bridge therefore argued that it was an indispensable party under Rule 19(a)(2)(i), Ala. R. Civ. P., and that it was entitled to recover on the preliminary-injunction bond if an injunction was entered but later found to be unwarranted. At this point, BCBC reversed course and filed a response in which it argued that Scott Bridge was not an indispensable party and that Scott Bridge's initial motion to dismiss should be granted. BCBC further moved to amend its complaint to remove Scott Bridge as a defendant.
The trial court thereafter held a seven-day hearing on BCBC's motion for a preliminary injunction. At the outset, the trial court stated that it had jurisdiction over the case and that it would be denying Cooper's motion to dismiss. The trial court also dismissed Scott Bridge, expressly stating that it was not an indispensable party and that it was "not entitled to an injunction bond."
Over the course of the hearing, the trial court took testimony from 13 witnesses and admitted over 200 exhibits. After testimony concluded, Cooper filed a renewed motion to dismiss, arguing again that BCBC's lawsuit was barred by State immunity and that BCBC's claims were not recognized by Alabama law. But the trial court again rejected those arguments, entering separate orders (1) denying Cooper's motion to dismiss[4] and (2) granting BCBC's request for a preliminary injunction halting work on the third bridge and ordering BCBC to post a $100,000 preliminary-injunction bond. Cooper filed his appeal challenging the "preliminary injunction and denial of related motions" that same day; Scott Bridge filed its own appeal two days later.
As always, when a jurisdictional issue has been raised by the parties or is apparent to us, we begin our analysis there. See Johnson v. Washington, [Ms. SC-2022-0897, June 30, 2023]___ So.3d ___, ___ (Ala. 2023) (). Cooper argues that the trial court lacked subject-matter...
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