Opinion
CL-2022-0550
11-04-2022
ALABAMA MEDICAID AGENCY v. Raley L. WIGGINS, as guardian ad litem for J.C.T.
Steve Marshall, att’y gen., and Timothy "Bo" Offord, asst. att’y gen. and deputy gen. counsel, and Sam White, asst. att’y gen. and asst. gen. counsel, Alabama Medicaid Agency, for appellant. Raley L. Wiggins, Montgomery.
Steve Marshall, att’y gen., and Timothy "Bo" Offord, asst. att’y gen. and deputy gen. counsel, and Sam White, asst. att’y gen. and asst. gen. counsel, Alabama Medicaid Agency, for appellant.
Raley L. Wiggins, Montgomery.
THOMPSON, Presiding Judge.
The Alabama Medicaid Agency ("the Agency") appeals the judgment of the Montgomery Circuit Court ("the circuit court") ordering it to pay a fee to compensate Raley L. Wiggins, the guardian ad litem appointed by the circuit court to represent J.C.T.’s interests in a proceeding seeking judicial review of the Agency’s decision denying his application for services provided through the "Home-and-Community-Based Waiver for Persons with Intellectual Disabilities" program ("the ID waiver program"). We reverse and remand.
On September 3, 2020, J.C.T. filed in the circuit court a petition for judicial review of the Agency’s decision denying his application for services provided through the ID waiver program. Along with his petition, J.C.T. filed an affidavit of substantial hardship requesting a waiver of the requirement that he pay fees and costs associated with initiating the case and a motion to waive the requirement that he post a cost bond or pay a filing fee. On September 22, 2020, the circuit court entered an order finding that J.C.T. is indigent and waiving the requirement that he prepay the fees and costs.
The Agency moved to dismiss J.C.T.’s petition, arguing that the circuit court did not have subject-matter jurisdiction because, it said, the notice of appeal informing the Agency that J.C.T. was seeking judicial review of its decision had not been filed by a person with legal capacity. The circuit court conducted a hearing at which J.C.T. argued that dismissal of the petition for judicial review was not the proper remedy; rather, he argued, pursuant to Rule 17, Ala. R. Civ. P., the appointment of a guardian ad litem was appropriate when a litigant’s capacity to sue or be sued was at issue. The Agency argued that the appointment of a guardian ad litem would not cure the alleged jurisdictional deficiencies. On February 10, 2021, the circuit court, pursuant to Rule 17(c), Ala. R. Civ. P., entered an order appointing Wiggins to represent the interests of J.C.T. In its order, the circuit court noted that in Helton v. Helton, 362 So. 2d 257, 259 (Ala. Civ. App. 1978), Rule 17(c) had "been interpreted to require the appointment of a guardian ad litem where it is alleged that one of the litigants is incompetent." That same day the circuit court also entered an order denying the Agency’s motion to dismiss.
Rule 17, Ala. R. Civ. P., provides:
"(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. … No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
"(b) Capacity to Sue or Be Sued. The capacity of a party, including one acting in a representative capacity, to sue or be sued shall be determined by the law of this state.
"(c) … Incompetent Persons. … Whenever an incompetent person has a representative such as a general guardian or a like fiduciary, the representative may sue or defend in the name of the incompetent person. If a minor or an incompetent person does not have a duly appointed representative, that person may sue by that person’s next friend. The court shall appoint a guardian ad litem … for an incompetent person not otherwise represented in an action and may make any other orders it deems proper for the protection of the … incompetent person. …
"(d) Guardian Ad Litem; How Chosen. Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the … incompetent person in the capacity of an attorney or solicitor …. In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for services rendered in such cause, to be taxed as a part of the costs in such action, and which is to be paid when collected as other costs in the action, to such guardian ad litem."
The Agency filed a petition for a writ of mandamus in this court arguing that it had a clear, legal right to the dismissal of J.C.T.’s action. This court denied the Agency’s petition for a writ of mandamus. See Ex parte Alabama Medicaid Agency, 338 So. 3d 183 (Ala. Civ. App. 2021).
The case proceeded in the circuit court, and the circuit court issued a final decision, reversing the Agency’s decision denying J.C.T.’s application for services provided through the ID waiver program. The Agency did not appeal. After the limitations period for appealing the decision had expired, Wiggins, on March 1, 2022, filed a motion for an award of a fee to compensate him for his services. In the motion, Wiggins noted, among other things, that the circuit court had previously found J.C.T. to be indigent, that, pursuant to Rule 17(d), the award of a fee to compensate a guardian ad litem for his or her services is taxed as costs, and that usually costs are taxed in favor of the prevailing party. Wiggins also asserted:
"[T]he law does not appear to allow this court to order the guardian ad litem’s fee to be paid by [the Agency], due to the bar of Art. I, § 14, Ala. Const. 1901. See State Dep’t of Hum. Res. v. Bussman, 69 So. 3d 895, 897 (Ala. Civ. App. 2011)(holding that trial court lacked authority to order DHR to pay guardian ad litem fees); see also Rule 35(b), Ala. R. App. P. (‘In cases involving the State of Alabama or an agency or officer thereof, if an award of costs against the State of Alabama is authorized by law, costs shall be awarded in accordance with the provisions of [Rule 35(a), Ala. R. App. P.]; otherwise, costs shall not be awarded for or against the State of Alabama.’)."
Wiggins asked the circuit court to tax the costs "as it [saw] fit." On March 3, 2022, the circuit court entered an order granting Wiggins’s request for the award of a fee to compensate him for his services ("the GAL fee") and taxing the cost of the GAL fee against the Agency.
On March 11, 2022, the Agency filed a postjudgment motion, asking the circuit court to alter, amend, or vacate its March 3, 2022, order requiring the Agency to pay the GAL fee because, it said, there is no legal authority that allowed the circuit court to order the Agency to pay the fee. On March 15, 2022, the circuit court denied the Agency’s postjudgment motion. The Agency timely appealed.
[1] On appeal the Agency contends that the circuit court erred by ordering it to pay the GAL fee because, it says, a state agency cannot be ordered to pay a guardian ad litem’s fee unless the payment is required by contract or authorized by a statute, see State Dep’t of Hum. Res. v. Bussman, 69 So. 3d 895, 897-98 (Ala. Civ. App. 2011). According to the Agency, neither exception applies in this case. Wiggins acknowledges that the payment of the GAL fee in this case is not required by contract or authorized by statute. He, however, reasons that because Rule 17 authorizes the appointment of a guardian ad litem, the general rule in Alabama is to tax the costs in favor of the prevailing party, and J.C.T. is the prevailing party, the circuit court did not exceed its discretion by ordering the Agency to pay the GAL fee.
The Agency does not challenge on appeal the propriety of the circuit court’s appointment of a guardian ad litem to represent J.C.T.’s interests. "Arguments not raised in the appellant’s initial brief are deemed waived." Meigs v. Estate of Mobley, 134 So. 3d 878, 889 n.6 (Ala. Civ. App. 2013).
In Alabama Medicaid Agency v. Southcrest Bank, 268 So. 3d 72, 75-76 (Ala. Civ. App. 2018), this court addressed whether the trial court had the authority to award an attorney fee to Southcrest Bank, stating:
"Medicaid also contends that the trial court erred in awarding Southcrest the $750 attorney fee in the interpleader action. Normally, an award of an attorney fee from interpleaded funds is within the discretion of the trial court. Youngblood v. Bailey, 459 So. 2d 855, 861 (Ala. 1984); see also Air Movers of Am., Inc. v. State Nat’l Bank of Alabama, 293 Ala. 312, 329, 302 So. 2d 517, 533 (1974)(‘[I]n interpleader suits, the court "may" allow to one or more of the parties a reasonable sum for counsel fees payable out of the fund or property.’).
"However, as Medicaid points out, § 14 of the Alabama Constitution of 1901 provides that ‘the State of Alabama shall never be made a defendant in any court of law or equity.’ Moreover, ‘§ 14 bars
access to the State coffers, regardless of the amounts involved.’ Ex parte Bentley, 116 So. 3d 201, 204 (Ala. 2012). …
"‘"‘The wall of immunity erected by § 14 is nearly impregnable. … This immunity may not be waived …. "This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury." State Docks Comm’n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added).’"’
"Alabama Dep’t of Envtl. Mgmt. v. Town of Lowndesboro, 950 So. 2d 1180, 1188 (Ala. Civ. App. 2005)(quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So. 2d 867, 872-73 (Ala. 2004), quoting in turn Patterson v. Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002)).
"Medicaid is an agency of the State of Alabama. See § 22-6-7, Ala. Code 1975; Williams v. Hank’s Ambulance Serv., Inc., 699 So. 2d 1230, 1237 (Ala. 1997). ‘It is well established that state immunity under § 14 extends to state agencies.’ Alabama Dep’t of Envtl. Mgmt. v. Town of Lowndesboro, 950 So. 2d at 1188. Reducing Medicaid’s award to pay Southcrest’s attorney fee would affect the State coffers. Accordingly, we must hold that the trial court erred in awarding an attorney fee to Southcrest."
[2] Applying the law and reasoning set forth in Alabama Medicaid Agency v. Southcrest Bank, supra, to the facts in this case, we must conclude that the circuit court erred in ordering the Agency to pay the GAL fee. The constitution forbids judgments that divest funds from the state treasury. Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1211-12 (Ala. 2006). It is undisputed that the Agency’s payment of the GAL fee "‘would affect the State coffers.’" Alabama Medicaid Agency v. Southcrest Bank, 268 So. 3d at 75 (quoting Ex parte Bentley, 116 So. 3d 201, 204 (Ala. 2012)). Additionally, the record indicates that the payment of the GAL fee sought by Wiggins, who was appointed as J.C.T.’s guardian ad litem pursuant to Rule 17 is not required by contract or authorized by statute. See Bussman, 69 So. 3d at 897-98. Additionally, the "rules [of court] shall not abridge, enlarge or modify the substantive right of any party." Act VI, 150, Ala. Const 1901 (Off. Recomp.). Therefore, although we are sympathetic to Wiggins’s circumstances, we are bound by our constitution and the other cited precedent and, thus, must hold that the circuit court exceeded its discretion by ordering the Agency to pay the GAL fee.
Wiggins’s constitutional arguments were not presented to the trial court; therefore, they are waived. See Smith v. State Dep’t of Pensions & Sec., 340 So. 2d 34, 37 (Ala. Civ. App. 1976)("It has long been the law in this state that constitutional questions not raised in the court below will not be considered for the first time on appeal.").
The circuit court’s judgment is reversed, and the case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Moore, Edwards, Hanson, and Fridy, JJ., concur.