REL: 07/03/2014




Notice: This opinion is subject to formal revision before publication in the advance
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the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130051
                             ____________________

  Ex parte The Boys and Girls Clubs of South Alabama, Inc.

                       PETITION FOR WRIT OF MANDAMUS

                     (In re: State of Alabama et al.

                                           v.

  The Boys and Girls Clubs of South Alabama, Inc., and The
           Community Foundation of South Alabama)

                  (Baldwin Circuit Court, CV-13-900812)



MURDOCK, Justice.

      The     Boys     and    Girls      Clubs     of    South      Alabama,       Inc.

("BGCSA"), seeks a writ of mandamus ordering the Baldwin
1130051

Circuit Court to dismiss a declaratory-judgment action filed

against it and The Community Foundation of South Alabama by

the attorney general of Alabama, Fairhope-Point Clear Rotary

Youth Programs, Inc. ("Rotary Inc."), and Ruff Wilson Youth

Organizations, Inc. ("Wilson Inc.") (hereinafter the latter

two parties are referred to collectively as "the Eastern Shore

Clubs").   We grant the petition.

               I.   Facts and Procedural History

    This is the third action that has come before this Court

arising out of a dispute   between BGCSA and the Eastern Shore

Clubs concerning certain funds.        Many of the pertinent

underlying facts were provided in our opinion in the first

action, The Boys & Girls Clubs of South Alabama, Inc. v.

Fairhope-Point Clear Rotary Youth Programs, Inc., 114 So. 3d

817 (Ala. 2012).    In that case we explained that BGCSA

    "operates several facilities in Mobile County to
    promote,   as   stated   in  its   certificate   of
    incorporation, 'the health, social, educational,
    vocational, and character development' of youth in
    Baldwin and Mobile Counties. In 1996, it was also
    operating   facilities   in  Baldwin   County.   In
    particular, it operated a facility in Fairhope
    sometimes referred to as the 'Fairhope Boys and
    Girls Club' ('the Fairhope Club'). It operated
    another such facility in Daphne sometimes referred
    to as the 'Daphne Boys and Girls Club' ('the Daphne
    Club')."

                               2
1130051

114 So. 3d at 818.

    On November 13, 1996, B.R. Wilson, Jr., one of the

incorporators and a principal benefactor of BGCSA, executed a

deed transferring to BGCSA approximately 17 acres of real

estate ("the property"). Contemporaneously with the execution

of the deed, Wilson gave a letter to BGCSA that stated

Wilson's intentions and stipulations concerning his gift of

the property.    The letter stated that BGCSA was "'free to

ultimately   dispose   of   this   property,'"   but   that   it   was

Wilson's "'desire and understanding that [BGCSA] will use the

proceeds from any such disposition for [BGCSA's] facilities

and/or activities in the Fairhope–Point Clear area.'"              114

So. 3d at 818.   Wilson died in 1997.

         "In March 2000, [BGCSA] sold the property and
    deposited the proceeds into three separate accounts,
    two of which were separately earmarked for the
    Daphne Club and for the Fairhope Club. However, on
    May 31, 2009, the Club discontinued its operations
    in Daphne and Fairhope, citing 'operating deficits'
    as a contributing factor. It transferred the
    remainder of the proceeds from the sale of the
    property to an account in the Community Foundation
    of South Alabama ('the bank').

         "On June 1, 2009, the facilities in Daphne and
    Fairhope were reopened by volunteers and former
    [BGCSA] personnel, who began operating the youth
    centers under their own independent management
    structures. Subsequently, some of these individuals

                                   3
1130051

    incorporated Rotary Inc. and Wilson Inc., under
    which they continued to operate the facilities in
    Fairhope and Daphne, respectively."

Id. at 818-19.

    On April 22, 2010, the Eastern Shore Clubs filed an

action in the Baldwin Circuit Court seeking declaratory and

injunctive relief against BGCSA.          The Eastern Shore Clubs

alleged   that      BGCSA   "ha[d]     used,"   or,    perhaps,   was

"anticipat[ing] using," the proceeds from the sale of the

property ("the Wilson funds") for its own operations, rather

than for the benefit of the Eastern Shore Clubs.             A bench

trial ensued.      On March 15, 2012, the Baldwin Circuit Court

entered a judgment in which it concluded that Wilson's intent

was that the Wilson funds should be used for the "exclusive

benefit of the Fairhope and Daphne Clubs."               The Baldwin

Circuit Court ordered the disbursal of the remainder of the

Wilson funds, namely $1,104,081.78, as follows:          $893,377.02

to Rotary Inc. and $210,704.76 to Wilson Inc.

    BGCSA appealed the Baldwin Circuit Court's judgment to

this Court.       In Boys & Girls Clubs of South Alabama, this

Court   vacated    the   Baldwin   Circuit   Court's   judgment   and

dismissed the case and the appeal.        This Court reasoned that


                                   4
1130051

the Eastern Shore Clubs' suit was an action under the Alabama

Nonprofit Corporation Law, Ala. Code 1975, §§ 10A-3-1 through

10A-3-8.02, because they contended that BGCSA lacked the power

to spend the Wilson funds in any way other than for the

benefit of the Eastern Shore Clubs.         In effect, the Eastern

Shore Clubs sought a declaration that BGCSA had committed or

would commit an ultra vires act by spending the Wilson funds

in any manner that did not benefit the Eastern Shore Clubs.

Actions   alleging   ultra   vires   acts    against   a   nonprofit

corporation are governed by § 10A–3–2.44, Ala. Code 1975,

which, in relevant part, provides:

         "No act of a nonprofit corporation and no
    conveyance or transfer of real or personal property
    to or by a nonprofit corporation shall be invalid by
    reason of the fact that the corporation was without
    capacity or power to do an act or to make or receive
    a conveyance or transfer, but lack of capacity or
    power may be asserted:

               "(1) In a proceeding by a member or a
          director against the nonprofit corporation
          to enjoin the doing or continuation of
          unauthorized acts, or the transfer of real
          or personal property by or to the nonprofit
          corporation. ...

               "(2) In a proceeding by the nonprofit
          corporation, whether acting directly or
          through a receiver, trustee, or other legal
          representative, or through members in a
          representative suit, against the officers

                                5
1130051

          or directors of the nonprofit corporation
          for exceeding their authority.

               "(3) In a proceeding by the Attorney
          General, as provided in this chapter, to
          dissolve the nonprofit corporation, or in
          a proceeding by the Attorney General to
          enjoin the nonprofit corporation from
          performing unauthorized acts, or in any
          other proceeding by the Attorney General."

    Based on the requirements of § 10A–3–2.44, a plurality of

this Court reasoned in Boys & Girls Clubs of South Alabama:

         "It is undisputed that [BGCSA] is a nonprofit
    corporation within the purview of the [Alabama
    Nonprofit Corporation Law], and [the Eastern Shore
    Clubs] do not claim, or purport, to be members or
    directors of [BGCSA]. Thus, it is clear that Rotary
    Inc. and Wilson Inc. are not such persons as are
    authorized by § 10A-3-2.44 to commence an action
    against [BGCSA] relating to the transactions
    challenged in this case. In short, ... Rotary Inc.
    and Wilson Inc. have failed to demonstrate that they
    are proper parties to sue [BGCSA] over the
    disposition of the [Wilson funds]. Consequently, the
    complaint filed by Rotary Inc. and Wilson Inc.
    failed to invoke the subject-matter jurisdiction of
    the trial court."

114 So. 3d at 821 (footnote omitted).

    On May 16, 2013, BGCSA filed in the Mobile Circuit Court

a declaratory-judgment action against the Eastern Shore Clubs

seeking entitlement to the Wilson funds and the right to spend

the funds as it sought fit ("the Mobile action").   On June 6,



                              6
1130051

2013, BGCSA provided notice of the action to the attorney

general, who waived any further service or right to be heard.

    On June 13, 2013, the Eastern Shore Clubs filed a motion

to dismiss the Mobile action contending that, under the

principles stated in Boys & Girls Clubs of South Alabama,

BGCSA lacked standing to bring the action.            On August 26,

2013, the Mobile Circuit Court denied the Eastern Shore Clubs'

motion.

    The Eastern Shore Clubs petitioned this Court for a writ

of mandamus, which sought an order directing the Mobile

Circuit Court to dismiss the Mobile action for the same reason

they asserted in their motion to dismiss.            On December 9,

2013,   this   Court   denied   the   mandamus   petition   by   order

(no. 1121540).

    On June 13, 2013, the attorney general's office, on

behalf of the Eastern Shore Clubs,1 filed a declaratory-

judgment action in the Baldwin Circuit Court against BGCSA and




    1
     The attorney general does not claim         that the State has
an interest in the Wilson funds.      The        respondents' brief
states that the attorney general is               involved to seek
compliance by the Eastern Shore Clubs with       the requirements of
§ 10A-3-2.44, Ala. Code 1975.
                                  7
1130051

the   Community   Foundation   of   South   Alabama2   seeking     a

"determination of the ownership of the [Wilson] funds" ("the

present action"). On July 17, 2013, BGCSA filed a motion to

dismiss the action, contending that the action was "barred by

Alabama's abatement statute, Alabama Code § 6-5-440."            The

Baldwin Circuit Court denied the motion on September 30, 2013.

Subsequently, BGCSA filed a petition for a writ of mandamus

asking this Court to direct the Baldwin Circuit Court to

vacate its order denying BGCSA's motion to dismiss and to

dismiss the present action.

                    II.   Standard of Review

           "'[A] writ of mandamus is an extraordinary
      remedy, which requires the petitioner to demonstrate
      a clear, legal right to the relief sought, or an
      abuse of discretion.' Ex parte Palm Harbor Homes,
      Inc., 798 So. 2d 656, 660 (Ala. 2001). Mandamus is
      the appropriate remedy to correct a trial court's
      failure to properly apply § 6-5-440. See Ex parte
      Chapman Nursing Home, Inc., 903 So. 2d 813 (Ala.
      2004); Ex parte Breman Lake View Resort, L.P., 729
      So. 2d 849, 852 (Ala. 1999)."

Ex parte J.E. Estes Wood Co., 42 So. 3d 104, 108 (Ala. 2010).




      2
     The parties agree that the Community Foundation of South
Alabama is simply the holder of the Wilson funds and that it
claims no ownership right in those funds. It is not a party
to this mandamus proceeding.
                               8
1130051

                              III.      Analysis

    The        contentions   of   the       parties    are     straightforward.

BGCSA contends that the present action is barred by § 6-5-440,

Ala. Code 1975.        Section 6-5-440 provides:

         "No plaintiff is entitled to prosecute two
    actions in the courts of this state at the same time
    for the same cause and against the same party. In
    such a case, the defendant may require the plaintiff
    to elect which he will prosecute, if commenced
    simultaneously, and the pendency of the former is a
    good defense to the latter if commenced at different
    times."

BGCSA notes that the Mobile action and the present action are

both declaratory-judgment actions seeking to determine who is

entitled to the Wilson funds and that the same principal

parties -- BGCSA and the Eastern Shore Clubs -- are involved

in both actions.         BGCSA further observes that the Mobile

action was filed on May 16, 2013, while the present action was

filed     on    June   13,   2013.          BGCSA     argues     that   all   the

requirements of § 6-5-440 are fulfilled and that, therefore,

the abatement statute requires the dismissal of the later

filed present action.

    The attorney general and the Eastern Shore Clubs do not

dispute that the two actions concern the same cause.                    Indeed,

in their brief the attorney general and the Eastern Shore

                                        9
1130051

Clubs state that "[t]he underlying controversy in the present

Baldwin County case is the same as in the Mobile case ...."

They assert, however, that "[t]he only significant difference

between these two actions, which is the basis of the Mobile

Litigation's impropriety, is that Attorney General Luther J.

Strange, III, [is a plaintiff in] the Baldwin Litigation while

the Attorney General is not a party to the pending Mobile

Litigation."

    The attorney general and the Eastern Shore Clubs contend

that their action is not barred because, they argue, the

Mobile Circuit Court lacked subject-matter jurisdiction over

the Mobile action in that BGCSA lacked "standing" to file the

Mobile action under the principles enunciated in Boys & Girls

Clubs of South Alabama.   The attorney general and the Eastern

Shore Clubs in essence argue that BGCSA brought an action

against the Eastern Shore Clubs under § 10A-3-2.44 but that

BGCSA does not fit into any of the three categories of parties

who may bring such a claim:        BGCSA is not a member or a

director of the Eastern Shore Clubs as contemplated by § 10A-

3-2.44(1), BGCSA's suit is not suit against its own officers

and directors as contemplated by § 10A-3-2.44(2), and the


                              10
1130051

attorney    general    did     not    file   the    Mobile   action      as

contemplated by § 10A-3-2.44(3).             Therefore, the attorney

general and the Eastern Shore Clubs contend, BGCSA lacked

"standing" to bring the Mobile action.               They reason that

because BGCSA lacked standing, the Mobile Circuit Court lacked

subject-matter jurisdiction over that action.             Based on this

contention, the attorney general and the Eastern Shore Clubs

take the position that the present action should be considered

as   the   only    action    now   pending   on    the   matter    of   the

disposition of the Wilson funds and that, accordingly, § 6-5-

440 is not implicated.

       We begin our analysis by reiterating that the opinion in

Boys & Girls Clubs of South Alabama, upon which the Eastern

Shore Clubs seek to rely, was a plurality opinion.                As such,

that     opinion    does     not     represent     binding   precedent.

Furthermore, although that plurality opinion was premised on

a purported lack of "standing" by the Eastern Shore Clubs,

precedent from this Court makes it clear that a deficiency in

the plaintiffs' claim of the nature at issue in that action

was a failure to state a claim upon which relief could be

granted, not a lack of standing.             We have noted that "our


                                     11
1130051

courts too often have fallen into the trap of treating as an

issue of 'standing' that which is merely a failure to state a

cognizable cause of action or legal theory, or a failure to

satisfy the injury element of a cause of action." Wyeth, Inc.

v. Blue Cross & Blue Shield of Alabama, 42 So. 3d 1216, 1219

(Ala. 2010).    In delineating the distinction between the

concepts of standing and failure to state a claim, the Wyeth

Court quoted the authors of Federal Practice and Procedure:

          "'Standing goes to the existence of
          sufficient adversariness to satisfy both
          Article     III     case-or-controversy
          requirements and prudential concerns. In
          determining standing, the nature of the
          injury asserted is relevant to determine
          the existence of the required personal
          stake and concrete adverseness. ... The
          focus of the cause-of-action inquiry must
          not be confused with standing —- it does
          not go to the quality or extent of the
          plaintiff's injury, but to the nature of
          the right asserted.'"

42 So. 3d at 1220 (quoting 13A Charles Alan Wright, Arthur K.

Miller, and Edward H. Cooper, Federal Practice & Procedure

§ 3531.6 (2008)) (emphasis omitted; emphasis added).




                             12
1130051

      Assuming the allegations in the complaint in Boys & Girls

Clubs of South Alabama were true,3 there is no question that

the Eastern Shore Clubs therein alleged an injury, i.e., the

deprivation of funds to which they claimed to be entitled,

that gave rise to the adverseness necessary for standing. The

issue before the Court was whether the Eastern Shore Clubs met

the       elements   of   the   claim   they   had   asserted   under

§ 10A-3-2.44.        The Court concluded that on the face of their

complaint the Eastern Shore Clubs failed to meet the statutory

requirements for an action under § 10A-3-2.44.             In other

words, the deficiency in their action was that the "legal

theories asserted by the [Eastern Shore Clubs] are [not]

recognized by Alabama law; they are not questions of the

[Eastern Shore Clubs'] 'standing' to assert and attempt to

prove those legal theories in our courts." Ex parte MERSCORP,



      3
     "In analyzing whether [the plaintiff] has standing at the
dismissal stage, we must assume that [the plaintiff] states a
valid legal claim ... and 'must accept the factual allegations
in the complaint as true.'" Information Handling Servs., Inc.
v. Defense Automated Printing Servs., 338 F.3d 1024, 1029
(D.C. Cir. 2003) (quoting Sturm, Ruger & Co. v. Chao, 300 F.3d
867, 871 (D.C. Cir. 2002)). See also Wyeth, Inc., 42 So. 3d
at 1220 (noting that "we assume th[e] legal theory [advanced
by the plaintiff] to be viable for purposes of our standing
inquiry").
                                   13
1130051

Inc., [Ms. 1111370, Sept. 20, 2013] ___ So. 3d ___, ___ (Ala.

2013).

    The fact that the deficiency in Boys & Girls Clubs of

South Alabama was not one of standing but rather of a failure

to satisfy the elements of § 10-3-2.44 undermines the argument

of the attorney general and the Eastern Shore Clubs in the

present case.   They contend that BGCSA lacked standing in the

Mobile action because, they say, BGCSA's action was brought

under § 10A-3-2.44 and BGCSA was not a proper party to bring

the action under the requirements of that statute.        The

attorney general and the Eastern Shore Clubs conclude that

because BGCSA lacked standing, the Mobile Circuit Court lacked

subject-matter jurisdiction over the Mobile action.    As the

above discussion concerning Boys & Girls Clubs of South

Alabama indicates, however, the alleged deficiency in the

Mobile action raised by the attorney general and the Eastern

Shore Clubs involves an alleged failure to state a claim, not

a failure of standing.   A failure to state a claim does not

implicate a court's subject-matter jurisdiction.    Thus, the

Mobile Circuit Court had jurisdiction to entertain BGCSA's

action, and that action was pending at the time the attorney


                              14
1130051

general and the Eastern Shore Clubs filed the present action

in the Baldwin Circuit Court.        In short, the attorney general

and the Eastern Shore Clubs are incorrect in contending that

§ 6-5-440 is inapplicable on the ground that the present

action in the Baldwin Circuit Court should be considered as

the only pending action that concerns the disposition of the

Wilson funds.4

    The argument of the attorney general and the Eastern

Shore   Clubs    is   also   problematic   because   it   incorrectly

characterizes the nature of the Mobile action.              As noted

above, the attorney general and the Eastern Shore Clubs assume

that § 10A-3-2.44 applies to the Mobile action, but that

section   concerns    "act[s]   of   a   nonprofit   corporation"   or

"conveyance[s] or transfer[s] of real or personal property to

or by a nonprofit corporation" that a challenger alleges "the

corporation was without capacity or power to do."             In the


    4
     Even if questions existed as to the jurisdiction of the
Mobile Circuit Court over the Mobile action, those questions
would be within the province of the Mobile Circuit Court,
itself. An argument (that we need not further address in this
case) exists that it is not for a court in one circuit to
treat an action initiated in another circuit as if it were not
pending and that, unless and until the court in which that
action is filed dismisses it, the action remains pending for
purposes of § 6-5-440.
                                  15
1130051

Mobile action, BGCSA obviously does not contend that it lacks

the power to spend the Wilson funds in any manner it deems

appropriate. Likewise, BGCSA is not challenging in the Mobile

action an act of the Eastern Shore Clubs as ultra vires (nor

does it have to, because BGCSA has always controlled the

Wilson funds).   In short, the Mobile action, unlike the 2010

action filed by the Eastern Shore Clubs, does not challenge an

alleged ultra vires act of a nonprofit corporation, and it

therefore is not governed by § 10A-3-2.44.5

    Instead, BGCSA seeks a judgment clarifying its right to

the Wilson funds as a result of the doubt created by the

March 15, 2012, judgment of the Baldwin Circuit Court that

this Court vacated in Boys & Girls Clubs of South Alabama.

The Mobile Circuit Court observed in its order denying the

Eastern Shore Clubs' motion to dismiss the Mobile action that

§ 10A-1-2.11, Ala. Code 1975, expressly states that nonprofit

corporations possess "the power to ... sue, be sued, complain,

and defend suit in its entity name," and that such an entity


    5
     In Boys & Girls Clubs of South Alabama, this Court stated
that "it is clear that [the Eastern Shore Clubs] are not such
persons as are authorized by § 10A-3-2.44 to commence an
action against [BGCSA] relating to the transactions challenged
in this case." 114 So. 3d at 821 (emphasis added).
                              16
1130051

"has the same powers as an individual to take action necessary

or convenient to carry out its business and affairs."         The

Mobile Circuit Court also noted that § 6-6-220, Ala. Code

1975, provides that a nonprofit corporation is a "person"

within the meaning of the Declaratory Judgment Act.       Thus,

BGCSA is empowered to seek a declaratory judgment that will

help it carry out its business and affairs, which is precisely

what BGCSA has done by filing the Mobile action.

    Because   the     Mobile   action   is   not   governed   by

§ 10A-3-2.44, the action did not need to be brought by a

member or director of BGCSA or by the attorney general.       For

these reasons as well, the Mobile action was and is properly

before the Mobile Circuit Court. In reaching this conclusion,

we merely express by opinion that which was implied by the

December 9, 2013, order of this Court denying the Eastern

Shore Clubs' petition for a writ of mandamus in the Mobile

action.

    Having confirmed the fact that the Mobile action is

properly before the Mobile Circuit Court, we address the only

remaining question:   Whether § 6-5-440 does, in fact, require

the dismissal of the present action.     This Court has stated


                               17
1130051

that § 6-5-440 "means that 'where two or more courts have

concurrent jurisdiction, the one which first takes cognizance

of a cause has the exclusive right to entertain and exercise

such jurisdiction, to the final determination of the action

and the enforcement of its judgments or decrees.'"    Regions

Bank v. Reed, 60 So. 3d 868, 884 (Ala. 2010) (quoting Ex parte

Burch, 236 Ala. 662, 665, 184 So. 694, 697 (1938)).   There is

no question that the Mobile action was filed before the

present action.   As we noted earlier in this analysis, the

Eastern Shore Clubs concede that the Mobile action and the

present action involve the same cause.

    The only difference between the two actions noted by the

Eastern Shore Clubs -- the presence of the attorney general as

a party in the present action but not in the Mobile action --

has no bearing on a determination of whether the present

action is subject to abatement because the attorney general

does not claim any independent interest in the subject of the

cause of the two actions.

    This Court has observed that "[t]he application of § 6-5-

440 'is guided by "whether a judgment in one suit would be res

judicata of the other."'"   Ex parte Compass Bank, 77 So. 3d


                             18
1130051

578, 581 (Ala. 2011) (quoting Chiepalich v. Coale, 36 So. 3d

1, 3 (Ala. 2009), quoting in turn Sessions v. Jack Cole Co.,

276 Ala. 10, 12, 158 So. 2d 652, 654-55 (1963)).               "'"[T]he

party identity criterion of res judicata does not require

complete identity, but only that the party against whom

res judicata is asserted was either a party or in privity with

a party to the prior action[.]"'"        Chapman Nursing Home, Inc.

v.   McDonald,   985   So.   2d   914,   921   (Ala.   2007)   (quoting

Dairyland Ins. Co. v. Jackson, 566 So. 2d 723, 725 (Ala.

1990), quoting in turn Whisman v. Alabama Power Co., 512 So.

2d 78, 82 (Ala. 1987)).

     This Court has explained:

     "Our caselaw requires that 'there is a substantial
     identity of parties in the two actions.' Ex parte
     Ford Motor Credit Co., 772 So. 2d 437, 440 (Ala.
     2000).    Substantial identity requires that the
     '"'parties be identical, sometimes referred to as
     the mutuality of estoppel requirement.'"' Stewart
     v. Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting
     McMillian v. Johnson, 878 F. Supp. 1473, 1520 (M.D.
     Ala. 1995)).     '"An exception is made to this
     requirement for parties in privity with a party to
     the prior action."'    Stewart, 902 So. 2d at 10
     (quoting McMillian, 878 F. Supp. at 1520) (emphasis
     omitted). A party is deemed to be in privity with
     a party to a prior action when there is '"'an
     identity of interest in the subject matter of
     litigation.'"' Stewart, 902 So. 2d at 11 (quoting
     Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988),


                                   19
1130051

    quoting in turn Issue Preclusion in Alabama, 32 Ala.
    L. Rev. 500, 521 (1981)).

          "....

         "This Court has stated:    '"'"A person may be
    bound by a judgment even though not a party to a
    suit if one of the parties to the suit is so closely
    aligned with his interests as to be his virtual
    representative."'"'   Gonzalez, LLC v. DiVincenti,
    844 So. 2d 1196, 1203 (Ala. 2002) (quoting Green v.
    Wedowee Hosp., 584 So. 2d 1309, 1315 (1991), quoting
    other cases)."

Greene v. Jefferson Cnty. Comm'n, 13 So. 3d 901, 912 (Ala.

2008) (emphasis added).

    Assuming, without deciding, that the attorney general has

"standing" to bring the claims he asserts in the present

action and that he has asserted cognizable claims in the

action, those claims indisputably are asserted for the benefit

of, or in derivation of the purported rights of, the Eastern

Shore Clubs.   Applying the foregoing principles of "privity"

and "virtual representation," it is clear that there is a

"substantial identity" of parties as between the Mobile action

and the present action.

    Further, we note that the fact that the Eastern Shore

Clubs are plaintiffs in the present action but are defendants




                              20
1130051

in the Mobile action is inconsequential to the application of

the abatement statute in this instance.

         "This Court has held that the obligation imposed
    on a defendant under Rule 13(a), Ala. R. Civ. P., to
    assert compulsory counterclaims, when read in
    conjunction with § 6-5-440, Ala. Code 1975, which
    prohibits a party from prosecuting two actions for
    the same cause and against the same party, is
    tantamount to making the defendant with a compulsory
    counterclaim in the first action a 'plaintiff' in
    that action (for purposes of § 6-5-440) as of the
    time of its commencement.       See, e.g., Ex parte
    Parsons & Whittemore Alabama Pine Constr. Corp., 658
    So. 2d 414 (Ala. 1995); Penick v. Cado Systems of
    Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993);
    Ex parte Canal Ins. Co., 534 So. 2d 582 (Ala. 1988).
    Thus, the defendant subject to the counterclaim rule
    who commences another action has violated the
    prohibition in § 6-5-440 against maintaining two
    actions for the same cause."

Ex parte Breman Lake View Resort, L.P., 729 So. 2d 849, 851

(Ala. 1999).    Given that the claims asserted by the Eastern

Shore   Clubs   in   the   present    action   constitute   compulsory

counterclaims in relation to the claims asserted by BGCSA in

the Mobile action, the present action is subject to abatement

under § 6-5-440.

    The existence of the Mobile action requires the dismissal

of the present action.       See Ex parte J.E. Estes Wood Co., 42

So. 3d at 109 (observing that "where § 6-5-440 applies, it

'compels dismissal'" (quoting Ex parte Canal Ins. Co., 534 So.

                                     21
1130051

2d 582, 585 (Ala. 1988) (emphasis omitted)). Accordingly, the

Baldwin Circuit Court erred in denying BGCSA's motion to

dismiss the present action on the basis of § 6-5-440.

                             IV.   Conclusion

       Section 6-5-440 compels the dismissal of the present

action because another action involving the same cause and the

same    parties   –-   the   Mobile      action    –-   was    filed   first.

Therefore, we grant the petition for a writ of mandamus and

direct the Baldwin Circuit Court to vacate its September 30,

2013, order and to enter an order dismissing the present

action.

       PETITION GRANTED; WRIT ISSUED.

       Stuart, Shaw, and Wise, JJ., concur.

       Bolin,   Parker,   Main,    and    Bryan,    JJ.,      concur   in   the

result.

       Moore, C.J., dissents.




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