Schillaci v. Gentry (Ex parte Gentry), 2160155

• Court: Alabama Court of Civil Appeals
• Writing for the Court: THOMAS, Judge.
• Citation: 228 So.3d 1016
• Parties: EX PARTE Michael GENTRY (In re: Nancy Norris Schillaci and Ben Schillaci v. Michael Gentry Eddie Raymond Gentry and Robin Lynne Gentry v. Michael Gentry)
• Docket Number: 2160155
• Decision Date: 27 January 2017

228 So.3d 1016

EX PARTE Michael GENTRY

(In re: Nancy Norris Schillaci and Ben Schillaci
v.
Michael Gentry

Eddie Raymond Gentry and Robin Lynne Gentry
v.
Michael Gentry)

2160155

Court of Civil Appeals of Alabama.

January 27, 2017

William K. Bradford and Amber L. Ladner of Bradford Ladner, LLP, Mountain Brook, for petitioner Michael Gentry.

Wendy Brooks Crew and Christine Vice Vineyard of Crew Gentle Law, P.C., Birmingham, for respondents Nancy Norris Schillaci and Ben Schillaci.

John L. Bodie, Trussville, guardian ad litem.

THOMAS, Judge.

Michael Gentry ("the father") seeks review of orders of the Jefferson Circuit Court ("the trial court") entered in consolidated grandparent-visitation actions filed by Nancy Norris Schillaci ("the maternal grandmother") and Ben Schillaci ("the maternal stepgrandfather") and by Eddie Raymond Gentry ("the paternal grandfather") and Robin Lynne Gentry ("the paternal stepgrandmother"). The attachments to the father's petition for the writ of mandamus and the answers filed with this court reveal the following facts and procedural history.

The father and his wife, Whitney Gentry, who died in February 2014, were the parents of three children. In August 2016, the maternal grandmother and the maternal stepgrandfather filed a complaint in the trial court seeking an award of visitation with the children pursuant to Ala. Code 1975, § 30–3–4.2, which became effective on August 1, 2016. See Act No. 2016–362, § 5, Ala. Acts 2016. That same day, the paternal grandfather and the paternal stepgrandmother filed a similar complaint. The trial court consolidated the actions and appointed a guardian ad litem for the children.

In September 2016, the father moved to dismiss the actions. One of the arguments the father asserted in his motion, as amended, was that the maternal stepgrandfather and the paternal stepgrandmother should be dismissed as parties to their respective actions because, he contended, neither is a "grandparent" as that term is defined in § 30–3–4.2(a)(1) ; therefore,

228 So.3d 1019

the father argued, they lacked "standing" to bring the actions under § 30–3–4.2(b). The trial court denied the father's motion by order entered on October 3, 2016.

On October 11, 2016, the guardian ad litem filed on behalf of the children what she labeled as a "cross claim" against the father.¹ The "cross claim" contained three counts: a request for a judgment declaring that the children have a liberty interest in familial association with their extended family and two identical counts requesting an injunction requiring the father to permit continued association between the children and their extended family. Counts two and three asserted that the children's rights to familial association had "been infringed under color of state law."

The father, on October 25, 2016, filed a motion to dismiss the "cross claim," in which he asserted various arguments. At a hearing held on November 16, 2016, the trial court orally granted the father's motion to dismiss regarding counts two and three of the "cross claim" but denied the motion as to count one, the declaratory-judgment count. The trial court did not render or enter a written order on the father's motion to dismiss.

On December 1, 2016, the trial court entered an order directing the circuit-court clerk to "place this entire case UNDER SEAL" (capitalization in original). The December 1, 2016, order states no reason for the trial court's decision to seal the cases. No party had moved for such relief, and no hearing regarding the decision to seal the cases had been held. The maternal grandmother and maternal stepgrandfather state in their answer to the father's petition for the writ of mandamus that the trial court, at a hearing held on December 2, 2016, "addressed the order sealing the [cases]."² They further assert that the trial court sealed the cases because the cases "involve [ ] minor children and embarrassment or irreparable harm could occur." No party has provided this court with transcripts of any hearings before the trial court.

The father filed his mandamus petition on December 2, 2016. In that petition, he first seeks review of the trial court's October 3, 2016, order denying his motion to dismiss the maternal stepgrandfather and the paternal stepgrandmother from the actions because, he contends, they are not grandparents as defined in § 30–3–4.2(a)(1) and therefore lack "standing" to bring the actions. He also seeks review of the trial court's oral order denying his motion to dismiss count one of the "cross claim" brought by the guardian ad litem on behalf of the children. Finally, the father seeks review of the trial court's December 1, 2016, sua sponte order sealing the consolidated cases.

We must first consider whether, insofar as he seeks review of the trial court's October 3, 2016, order denying his motion to dismiss the maternal stepgrandfather and the paternal stepgrandmother from the actions, the father has timely invoked our jurisdiction. As we have recently reiterated, " Rule 21(a)(3), Ala. R. App. P., provides that a petition for the

228 So.3d 1020

writ of mandamus is presumptively timely if it is filed within the period permitted for an appeal of a judgment of the court in which the challenged order was entered." Ex parte J.B., 223 So.3d 251, 253 (Ala. Civ. App. 2016). The father filed his mandamus petition more than 42 days after the entry of the October 3, 2016, order.

Our inquiry does not end there, however.

"[O]ur supreme court recently determined that, in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of the appellate court. Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016). Instead, relying on the principle that an appellate court may review the issue of subject-matter jurisdiction regardless of whether that issue was raised in the trial court or even on appeal, our supreme court stated that subject-matter jurisdiction could be raised ex mero motu at any time despite the lack of a timely filed petition invoking the appellate court's jurisdiction. Ex parte K.R., 210 So.3d at 1112."

Ex parte J.B., 223 So.3d at 254.

The father contends that he is challenging whether the maternal stepgrandfather and the paternal stepgrandmother have "standing" to bring an action under § 30–3–4.2(a)(1) because they do not fall within the definition of "grandparent" contained in that section. Standing, he correctly states, implicates subject-matter jurisdiction. See Bernals, Inc. v. Kessler–Greystone, LLC, 70 So.3d 315, 319 (Ala. 2011). Therefore, he says, under Ex parte J.B., his failure to timely invoke the jurisdiction of this court is not fatal to his petition insofar as it challenges the October 3, 2016, order denying his motion to dismiss.

We disagree with the father that the maternal stepgrandfather and the paternal stepgrandmother lacked standing to be named as plaintiffs in the consolidated actions. Our supreme court has indicated, in two plurality opinions, that a majority of the supreme court recognized in Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 46 (Ala. 2013), that the concept of standing should be confined to public-law cases. See Gardens at Glenlakes Prop. Owners Ass'n, Inc. v. Baldwin Cty. Sewer Serv., LLC, 225 So.3d 47, 53–54 (Ala. 2016), and Jakeman v. Lawrence Grp. Mgmt. Co., LLC, 151 So.3d 1083, 1087–88 (Ala. 2014). As explained in Jakeman, "in private-law cases such questions as whether ‘ "the present plaintiff is ... entitled to a remedy" ’ is " ‘better addressed through private-law concepts" ’ such as ‘ "cause-of-action, real-party-in-interest, capacity, intervention, and like concepts." ’ " Jakeman, 151 So.3d at 1088 (quoting Ex parte BAC, 159 So.3d at 44–45, quoting in turn 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531 (3d ed. 2008) ). We need not decide whether the father's challenge to the ability of the maternal stepgrandfather and the paternal stepgrandmother to bring a grandparent-visitation action is a challenge to their capacity or a claim that they are not real parties in interest,...