source: Caselaw Access Project

author: WOODALL, Justice. LYONS, Justice

license: Public Domain

text:
    Ex parte TROUTMAN SANDERS, LLP. (In re Mary A. Champion et al. v. Dill, Dill, Carr, Stonbraker & Hutchings, P.C., et al.).
    1011812.
    Supreme Court of Alabama.
    Feb. 21, 2003.
    Rehearing Denied May 30, 2003.

      Warren B. Lightfoot, Mac M. Moorer, and James F. Hughey III of Lightfoot, Franklin & White, L.L.C., Birmingham; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for petitioner.
    E. Britton Monroe of Lloyd, Gray & Whitehead, P.C., Birmingham; Andrew P. Campbell and Caroline Smith Gidiere of Campbell, Waller & Loper, L.L.C., Birmingham; and Frank Corley Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbi-ana, for respondents.
   WOODALL, Justice.

Troutman Sanders, LLP (“Troutman”), petitions this Court for a writ of mandamus directing the Shelby Circuit Court to dismiss the claims of approximately 230 foreign plaintiffs, which are joined with the claims of Alabama plaintiffs, in two actions against Troutman and others. We dismiss the petition as untimely.

This petition arises out of the same litigation that precipitated Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519 (Ala.2003), also released today, which involves two cases, one filed by Mary Champion and others, CV-01^130 (“Champion ”), and the other filed by Allen Austin and others, CV-01-971 (“Austin”). Troutman is one of several defendants in those cases. The substantive facts are set forth in Ex parte Dill-, we will not repeat them here. Because this petition is resolved on procedural grounds, we set forth only those facts relevant to the procedural posture of this petition.

On February 7, 2002, Troutman, pursuant to Ala.Code 1975, § 6-5-430, moved in each case to dismiss the claims of the nonresident plaintiffs against it on the ground of forum non conveniens. On April 9, 2002, the trial court denied the motion in Austin. On April 29, 2002, Troutman filed in each case a “motion to reconsider” the denial - of its motion to dismiss the foreign plaintiffs. On May 13, 2002, the trial court denied Troutman’s motion to dismiss in Champion. On May 24, 2002, the trial court denied Troutman’s “motion to reconsider” in Austin. On June 27, 2002, Troutman petitioned this Court for a writ of mandamus, directing the trial court to “vacate [its] orders of April 9, May 13, and May 24, 2002, and ... to enter an order dismissing the 230 foreign plaintiffs from this suit, without prejudice.” In other words, the petition was filed 79 days after the denial of the motion to dismiss in Austin, and 45 days after the denial in Champion. Citing Ala. R.App. P. 21(a), the respondents move this Court to dismiss the petition as untimely. They also request sanctions against Troutman “as a result of its filing an untimely [peti-tíon] and failing to provide any good cause for the delay in its filing.”

Rule 21(a) provides, .in pertinent part:

“The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking revieiv of an order of a trial court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

(Emphasis added.) As the respondents correctly point out, Troutman’s petition contains no explanation for Troutman’s failure to file the petition within the 42 days contemplated by Rule 21. They also correctly note that an explanation is mandatory, that is, the petition “shall include a statement of circumstances constituting good cause for the appellate court to consider the petition.” (Emphasis added.)

In opposition to the respondents’ motion to dismiss, Troutman argues: “The Rule 21 period for filing a mandamus petition commences with the denial of Trout-man’s motions for reconsideration. Those motions, it must first be noted, are correctly treated as (and might have been better labeled) motions to ‘alter, amend, or vacate’ under Ala. R. Civ. P. 59(e).” Opposition to Respondents’ Motion to Dismiss Petition and for Sanctions, at 3 (emphasis added).

In this connection, Rule 59(e), Ala. R. Civ. P., provides: “A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.” (Emphasis added.) “Although the Alabama Rules of Civil Procedure do not talk of ‘motion[s] to reconsider,’ this Court has consistently treated them as 59(e) motions ‘to alter, amend, or vacate the judgment’ when such motions have been made pursuant to the guidelines for post-trial motions as set out in Rule 59.” McAlister v. Deatherage, 523 So.2d 387, 389 n. 1 (Ala.1988). The proper filing of a Rule 59(e) motion “suspend[s] the running of the time for filing a notice of appeal!” Ala. R.App. P. 4(a)(3).

The respondents contend that the trial court’s denials of Troutman’s motions to dismiss are interlocutory orders, and that “[a] motion filed after the entry of an interlocutory order is not a ‘post judgment’ motion, as no judgment has been entered. Thus, a motion to reconsider [the] entry [of] an. interlocutory order is not a ‘post judgment’ motion and does not suspend the time for filing an appeal.” Respondents’ Reply to .Troutman’s Opposition to Respondents’ Motion to Dismiss Petition and for Sanctions, at 6.

The respondents correctly describe the April 9 and May 13 orders as interlocutory. Orders denying motions to dismiss are interlocutory and trigger no right of appeal. Ryan v. Hayes, 831 So.2d 21 (Ala.2002); Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001); Dzwonkowski v. Sonitrol of Mobile, Inc., 854 So.2d 598 (Ala.Civ.App.2002). The dispositive question, therefore, is whether a “motion to reconsider” tolls the time for filing a petition for a writ of mandamus seeking review of an interlocutory order: We must answer that question in the negative.

By its express terms, Rule 5.9(e) applies only where there is a “judgment.” That term is specifically defined in Ala. R. Civ. P. 54(a), as “a decree and any order from which an appeal lies.” (Emphasis added.) Rule 59 does not apply to interlocutory orders, because such orders remain “within the breast of the court.” Rheams v. Rheams, 378 So.2d 1125, 1128 (Ala.Civ.App.1979). A “Rule 59 motion may be made only in reference to a final judgment or order.” Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999); see also Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.1988); Momar, Inc. v. Schneider, 823 So.2d 701, 704 (Ala.Civ.App.2001) (a Rule 59(e) “motion may be taken only from a final judgment”). Therefore, the tolling effect of Rule 59 is not involved with respect to motions to “reconsider” interlocutory orders. See Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir.1991) (a “motion for reconsideration” of an interlocutory order does not “call into play the timing and tolling considerations attendant upon motions to alter or amend judgment^] under Fed. R.Civ.P. 59(e)”).

Troutman contends that this result conflicts with our holding in Ex parte Lagrone, 839 So.2d 620 (Ala.2002). In that case, this Court entertained a petition for a writ of mandamus filed after the denial of a motion to “alter, amend, or vacate [a] judgment of dismissal,” which denial came more than four months after the judgment of dismissal. Id. at 622 (emphasis added). However, Lagrone is inapposite for at least two reasons. First, it involved a “judgment” dismissing a complaint as to certain defendants for lack of personal jurisdiction, not the denial of a motion to dismiss. Second, the timeliness of the mandamus petition was not there challenged. The case simply involved no timeliness issue. Thus, Lagrone cannot stand for the proposition that a “motion to reconsider” tolls the time in which to seek mandamus review of an interlocutory order denying a motion to dismiss that alleged forum non conveniens.

Because Rule 59(e) is inapplicable and because Troutman has offered no explanation for its failure to file the petition within a presumptively reasonable time, we must grant the respondents’ motion to dismiss the petition. The request for sanctions is denied.

PETITION DISMISSED.

MOORE, C.J., and HOUSTON, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

SEE, LYONS, and BROWN, JJ., dissent.

LYONS, Justice

(dissenting).

I must respectfully dissent from the holding in the main opinion that the petition for the writ of mandamus was untimely filed. The main opinion takes the petitioner, Troutman Sanders, LLP (“Troutman”), to task for fifing its petition within 42 days from the trial court’s denial of motions to reconsider its orders in two separate actions denying motions to dismiss on the ground of the doctrine of forum non conveniens, rather than within 42 days from the trial court’s denials of the motions to dismiss. The petition was filed 79 and 45 days after the denials of the motions to dismiss.

Rule 21(a), Ala. R.App. P., as amended effective September 1, 2000, embraced the 42-day period for appealing from a final judgment in a civil case as the “presumptively reasonable time” for fifing a petition for a writ of mandamus. That Rule 21(a) was not dealing with a jurisdictional time limit is inherent in the language of the rule referring to a “presumptively reasonable time.” Indeed, Rule 21(a) expressly contemplates acceptance of a petition filed outside this “presumptively reasonable time.” The Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000, illustrate instances in which a petition filed beyond the presumptively reasonable time would be accepted, setting forth factors such as “the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.”

In this proceeding, Troutman filed motions to reconsider adverse rulings on its motions to dismiss on grounds of forum non conveniens within 30 days of the trial court’s rulings. Because Rule 21(a) refers only to the time for the taking of an appeal as a presumptively reasonable time, the main opinion is technically correct in disallowing from the computation of the 42-day period the time during which the motion to reconsider was pending. However, because the revision to the rule is relatively new, because we have not heretofore addressed the effect of a motion to reconsider on the timeliness of a petition for a writ of mandamus, and because of the salutary nature of the practice of seeking reconsideration in a timely fashion before invoking the jurisdiction of this Court, I cannot treat as fatal Troutman’s failure to set forth in its petition circumstances constituting good cause for the Court to consider the petition notwithstanding that it was filed beyond the presumptively reasonable time. While Rule 21(a) provides that the petition “shall include a statement of circumstances constituting good cause for the appellate court to consider the petition” (emphasis added) if it is filed outside the presumptively reasonable time, I am not prepared to say that such a statement is a jurisdictional requirement and incapable of later submission if the court deems such submission appropriate. Rule 1, Ala. R.App. P., requires that the rules “shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.” Rule 2(b), Ala. R.App. P., authorizes an appellate court to “suspend the requirements or provisions of any of these rules in a particular case ... on its own motion and [to] order proceedings in accordance with its direction,” subject to exceptions not here applicable. I consider the circumstances surrounding Troutman’s failure to file its petition within 42 days of the trial court’s rulings to have been sufficiently explained, and I would invoke Rule 1 and Rule 2(b) so as to overcome Troutman’s failure to provide an explanation for its failure in its original petition. Moreover, I do not consider the delay to be prejudicial to the rights of the respondents. I would reach the merits. Therefore, I must dissent.

SEE and BROWN, JJ., concur.

      . Troutman first mentions the timeliness issue in its "Opposition to Respondents' Motion to Dismiss Petition and for Sanctions."


author: MURDOCK, Judge.

text:
    Larry DILSAVER et al. v. ROGER’S FOUNDATION REPAIR CO., INC., et al.
    2010391.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2002.
    Certiorari Denied May 30, 2003 Alabama Supreme Court 1020528.

      Rocky W. Eaton of Warhurst & Eaton, P.C., Mobile, for appellants.
    Mark S. Gober of Shepherd & Gober, Fairhope, for appellees.
   MURDOCK, Judge.

Larry and Robin Dilsaver filed a four-count complaint against Roger’s Foundation Repair Co., Inc., an Alabama corporation with it principal place of business in Daphne, Alabama, and Roger Hendren, individually (Roger’s Foundation Repair and Hendren being hereinafter referred to collectively as “Roger’s”), alleging breach of contract, negligence, misrepresentation, and suppression of material facts. Roger’s filed a motion to compel arbitration and to stay the proceedings. With its motion, Roger’s submitted a copy of a contract whereunder Roger’s was to perform foundation-repair work on the Dilsavers’ home located in Baldwin County. The contract stated that Roger’s was to install adjustable concrete foundation piers:

“Dig approximately 9 to 10 piers holes mark graft 4 ft. by 4 ft. Dig under 271 inch under the slab, put rebar with 3000 psi concrete jacks up, with approximately 10 piers pads, with steel shims, point crack where needed, wash down behind where needed, that includes all material labor.”

The contract was signed by Robin Dilsaver and Roger Hendren and included the following arbitration clause:

“ARBITRATION: It is acknowledged by Owner and Contractor that the work performed pursuant to this Contract involves or affects interstate commerce. Accordingly, Owner and Contractor mutually agree to any and all disputes arising with regard to work performed pursuant to this Contract, including but not limited to workmanship, performance, quality of work performed, compensation of Contractor, for the work contemplated by this Agreement, compensation of Contractor for extra work performed in addition to work contemplated by this Agreement, and any and all other disputes arising between Owner and Contractor of any kind or nature whatsoever in any way arising from the performance of any work contemplated by this Agreement shall be resolved by binding arbitration to be conducted pursuant to the Commercial Rules of the American Arbitration Association.”

The trial court granted Roger’s motion to compel arbitration. Thereafter, the Dil-savers filed a motion for reconsideration, alleging, among other things, that Roger’s had failed to establish that the contract evidenced a transaction that substantially affected interstate commerce. The trial court set a hearing to determine the “arbitration issue.” Roger’s filed a response and submitted several affidavits establishing that the foundation-repair work could not be performed without the use of pro-lift hydraulic bottle jacks that were manufactured in Kansas City, Missouri, and purchased from a vendor located in Burns-ville, Minnesota. The jacks were used to lift the floor of the Dilsavers’ home, allowing access to Roger’s to perform the foundation repair.

The trial court denied the Dilsavers’ motion to reconsider on September 26, 2001, and entered a judgment accordingly. The Dilsavers filed a notice of appeal to the Alabama Supreme Court on November 6, 2001; that court transferred the appeal to this court pursuant to § 12-2-7, Ala.Code 1975.

Rule 4(d), Ala. R.App. P., adopted effective October 1, 2001, provides that both the denial and the granting of a motion to compel arbitration are reviewed by appeal. Before the adoption of Rule 4(d), the granting of a motion to compel arbitration was reviewed by a petition for a writ of mandamus. The Dilsavers filed their notice of appeal on November 6, 2001; therefore, the trial court’s judgment granting the motion to compel arbitration is to be reviewed by appeal. Rule 4(d), Ala. R.App. P.

“[T]he standard of review of a trial court’s' ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review:” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). “The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce.” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). “ ‘[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ” Fleetwood Enters., Inc., 784 So.2d at 280 (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing)) (emphasis omitted).

The Dilsavers contend that the trial court erred in granting Roger’s motion to compel arbitration because, they say, Roger’s failed to meet its burden of proof in that it failed to show that the contract evidenced a transaction that substantially affected interstate commerce. Pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“the Act”), where a contract satisfies the interstate-commerce criterion for the applicability of the Act, the Act preempts state law. Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999). If the Act does not apply, “Alabama law, and specifically § 8-1-41(3), Ala.Code 1975, applies to prohibit specific enforcement of ‘[a]n agreement to submit a controversy to arbitration.’ ” Powell, 748 So.2d at 872.

This court’s disposition of the present case is governed by the decisions of our Supreme Court in Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000), and its progeny. Under the Supreme Court’s holding in Sisters of the Visitation, five factors are relevant in determining whether a transaction substantially affects interstate commerce and whether an arbitration agreement is therefore enforceable pursuant to the Act. These factors are: (1) the citizenship of the parties and any affiliation they may have with out-of-state entities; (2) where the tools and equipment used at the project site originated and whether they had moved in interstate commerce; (3) the allocation of costs and services involved in the project; (4) subsequent movement across state lines; and (5) the degree of separability from other contracts. Sisters of the Visitation, 775 So.2d at 766; see also Alternative Financial Solutions, LLC v. Colburn, 821 So.2d 981, 984 (Ala.2001) (“ ‘As noted in Sisters of the Visitation, our analysis of this issue is necessarily fact-intensive and in making that analysis we are limited to the facts contained in the record.’ ” (quoting Brown v. Dewitt, Inc., 808 So.2d 11,

Application of Sisters of the Visitation to the Evidence Presented in this Case

(1) Citizenship of the parties and any affiliation they may have with out-of-state entities. Roger’s is an Alabama corporation with its principal place of business in Daphne. The Dilsavers are residents of Baldwin County. The contract was executed in Baldwin County and the foundation-repair work was to be performed on the Dilsavers’ house, which is located in Baldwin County. Thus, this factor does not support the motion to compel arbitration filed by Roger’s.

(2) Where the tools and equipment used at the project site originated and whether they moved in interstate commerce. It is undisputed that the jacks used to perform the foundation-repair work on the Dilsav-ers’ home were purchased by Roger’s outside of Alabama, and that those jacks were manufactured outside of Alabama. However, there is no evidence in the record indicating that the jacks were purchased specifically for the Dilsavers’ project.

In Sisters of the Visitation, the Supreme Court, after noting that “the record [was] silent as to whether [the tools and equipment] were leased or purchased specially for the project and, if so, whether they had moved in interstate commerce,” concluded that “[n]o substantial effect on interstate commerce can be developed based on [the contractor’s] acquiring in interstate commerce any tools and equipment to be used in the performance of this contract.” 775 So.2d at 766.

The Supreme Court in Sisters of the Visitation also analyzed a hypothetical contract and transaction to determine whether that contract evidenced a transaction that substantially affected interstate commerce. The hypothetical involved a farmer who agreed to do work for another landowner. The hypothetical assumed that the “tools and equipment, which, although they moved in interstate commerce, were not purchased or leased solely for the farmer to perform the particular contract at issue.” 775 So.2d at 765. The Supreme Court concluded that “allowing this contract to remain outside the scope of the Act would not substantially disrupt activities that Congress intended to be subject to the Act.” Id. In other words, the court concluded that that contract did not evidence a transaction that substantially affected interstate commerce, and, therefore, did not trigger the preemptive application of the Act. See id.

Two recent Alabama Supreme Court cases that have reaffirmed the application of the five factors outlined in Sisters of the Visitation, Brookfield Construction Co. v. Van Wezel, 841 So.2d 220 (Ala.2002), and Aronov Realty Brokerage, Inc. v. Morris, 888 So.2d 348 (Ala.2002) (four Justices concurring and one Justice concurring in the result), have also reaffirmed that the second factor does not support arbitrability unless the record demonstrates the extent to which the tools and equipment moving in interstate commerce are leased or purchased specially for the project. See Van Wezel, 841 So.2d at 221 (reaffirming that “the second factor cannot support arbitra-bility unless the record demonstrates the extent to which tools and equipment moving interstate were ‘leased or purchased specially for the project.’ 775 So.2d at 766”); Morris, 838 So.2d at 357 (reaffirming that “as was the case in Sisters of the Visitation, ‘the record is silent as to whether [tools and equipment] were leased or purchased specially for the project and, if so, whether they moved in interstate commerce.’ 775 So.2d at 766”).

Both of the parties cite Powell, supra, in support of their respective positions in this case. In Powell, as in this case, the trial court entered an order granting a motion to compel arbitration. The Supreme Court reversed that order, concluding that the contract did not evidence a transaction that substantially affected interstate commerce. 748 So.2d at 872.

Powell involved a contract that contained an arbitration.clause identical to the one found in the contract in the present case. 748 So.2d at 870. Roger’s notes, however, that the record in Powell did not contain any evidence indicating that the tool (a shovel) used for the project in that case (the repair of a residential chimney) moved in interstate commerce. Id. at 871. Although the record in the present case does contain evidence indicating that the jacks moved in interstate commerce, the record does not contain any evidence that the jacks were purchased specially for the Dilsavers’ project. Based on Sisters of the Visitation and its progeny, we conclude that the evidence introduced by Roger’s pertaining to the second Sisters of the Visitation factor is not adequate to sustain the trial court’s order compelling arbitration.

(3) Intrastate versus interstate allocation of costs and services involved in the project. Roger’s offered no evidence regarding the intrastate versus interstate allocation of costs and services involved in the foundation work to be performed under the contract. Thus, this factor does not support the motion to compel arbitration filed by Roger’s.

(4) Subsequent movement across state lines. No aspect of the repair work at issue, or the completed project, involved movement across state lines. This factor does not support the motion to compel arbitration filed by Roger’s.

(5) The degree of separability from other contracts. The record is devoid of any evidence that the contract was interrelated to any other contracts affecting interstate commerce. This factor also does not support the motion to compel arbitration filed by Roger’s.

In summary, the evidence in the record before us does not support the conclusion that the contract and transaction at issue affect interstate commerce to a degree sufficient to satisfy the requirements outlined by the case authority discussed above. Accordingly, the trial court’s order compelling arbitration is due to be reversed, and we remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: CRAWLEY, Judge. PITTMAN, Judge, MURDOCK, Judge,

text:
    WASHINGTON MUTUAL FINANCE, LLC v. Joe Ann STEELE.
    2010820.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.
    Rehearing Denied March 14, 2003.

      W. Percy Badham III, Brannon J. Buck, and Melinda J. Lucas of Maynard, Cooper & Gale, P.C., Birmingham,' for appellant.
    Jerry 0. Lorant of Lorant & Associates, Birmingham, for appellee.
   CRAWLEY, Judge.

Washington Mutual Finance, LLC (hereinafter referred to as “WMF”), appeals from the circuit court’s denial of its motion to compel arbitration. We affirm.

On December 15, 2000, WMF filed a complaint in the district court seeking compensatory damages and court costs against Joe Ann Steele based on claims alleging breach of contract and, in the alternative, open account arising out of a loan agreement that WMF and Steele entered into on September 8, 1999. After a trial, the district court entered a judgment against Steele and in favor of WMF in the amount of $5,000, plus court costs. On September 4, 2001, Steele filed a notice of appeal to the circuit court for a trial de novo.

On November 26, 2001, Steele filed an answer and counterclaims seeking compensatory and punitive damages against WMF for invasion of privacy and intentional infliction of emotional distress. On January 28, 2002, WMF filed an answer to Steele’s counterclaims and a motion to compel arbitration. In support of its motion to compel arbitration, WMF attached an alternative-dispute-resolution agreement and a federal disclosure statement, both of which Steele signed on September 8, 1999, as part of the loan transaction. On March 12, 2002, Steele filed a response to WMF’s motion to compel arbitration, arguing that WMF had waived its right to compel arbitration by filing its complaint in the district court. Steele attached to her response a copy of the case action summary sheet from the district court, a copy of the alternative-dispute-resolution agreement, and supporting caselaw.

On March 15, 2002, after conducting a hearing on WMF’s motion to compel arbitration, the circuit court entered an order denying WMF’s motion, determining (1) that the underlying transaction did not substantially affect interstate commerce and (2) that, even if it did, WMF had waived its right to compel arbitration. On April 10, 2002, WMF filed a motion requesting the circuit court to reconsider its judgment and seeking relief from the judgment pursuant to Rule 60(b), Ala. R. Civ. P. Attached to WMF’s postjudgment motion were the affidavits of David Ryan, a WMF branch manager, and Elizabeth Raines, a WMF accounting manager. Both affidavits set forth statements attempting to show that the underlying transaction had a substantial effect on interstate commerce.

On April 26, 2002, the circuit court entered an order denying WMF’s post-judgment motion. In that order, the trial court stated, in pertinent part:

“On March 15, 2002, this court entered an order on the evidence before the court at that time, overruling and denying the motion to dismiss/stay and compel arbitration filed by [WMF].
“In [WMF’s] motion to reconsider and motion for relief from order pursuant to Rule 60(b), [WMF] alleges and attaches materials and matters which were not before the court when the court entered its order of March 15, 2002.
“It is this court’s opinion that it is not appropriate or proper for a party to file a motion and have a hearing thereon and speculate on the decision of the court, and after the court renders its decision, the party ([WMF] in this case) attempts] to present matters in a motion for reconsideration which were not before the court when the court entered its order of March 15, 2002.”

WMF filed a notice of appeal to the supreme court that same day. On May 20, 2002, this case was transferred to this court by the supreme court.

On appeal, WMF argues that the circuit court erred in denying its motion to compel arbitration because, it says, (1) the underlying transaction had a substantial effect on interstate commerce and (2) it did not waive its right to compel arbitration. In Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002)(plurality opinion), our supreme court noted:

‘A motion to compel arbitration is analogous to a motion for a summary judgment. The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce. Once such a prima facie showing has been made, the burden shifts to the paHy opposing arbitration to present some evidence indicating that there is no arbitration agreement subject to specific enforcement under the [Federal Arbitration Act, 9 U.S.C. § 1 et seq.J. If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.’
“Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999) (citation omitted [in Aronov Realty ]) (emphasis added [in Aronov Realty ]). See also Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000). The effect of the transaction on interstate commerce must be substantial. See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 761 (Ala.2000)(citing United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)). ‘If the party seeking to enforce the arbitration agreement fails to make such a showing, then the opposing party has no burden of resisting arbitration and the motion should be denied.’ Brown v. Dewitt, Inc., 808 So.2d 11, 14 (Ala.2001)(citing Ex parte Greenstreet, Inc., 806 So.2d 1203 (Ala.2001); Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999)).”

838 So.2d at 353.

The only evidence submitted with WMF’s motion to compel arbitration was the alternative-dispute-resolution agreement and a federal disclosure statement. That alternative-dispute-resolution agreement contains the following clause:

“(2) The parties anticipate that the funding to make Borrower’s loan pursuant to the Loan Agreement will come from sources outside the State of Alabama. Further, Lender’s credit forms and related documents are printed and data processing for Borrower’s loan is performed outside the State of Alabama. Therefore, Lender and Borrower acknowledge and agree that the Loan Agreement involves ‘commerce’ as defined in the United States Arbitration Act, Title 9, United States Code, ‘Arbitration,’ hereinafter referred to as the ‘USAA.’ ”

Such recitations in an arbitration clause have been held not to meet a proponent’s burden of showing that a transaction did in fact substantially affect interstate commerce. See Aronov Realty, 838 So.2d at 359; Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 823 (Ala.2001); and Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999).

No evidence was submitted in support of WMF’s motion to compel arbitration to prove that this transaction had a substantial effect on interstate commerce. WMF acknowledged as much in its postjudgment motion when it stated “at the ... hearing, the issue of whether the underlying transaction between [WMF] and Steele involved interstate commerce was not raised or discussed.” (R. 91.) Accordingly, the circuit court’s order denying WMF’s motion to compel arbitration is due to be affirmed. See Aronov Realty, 838 So.2d at 353-54 (“Turning first to Maxwell’s motion to compel arbitration, we have noted that she failed to attach to her motion any supporting materials. Other than incorporating by reference the agreement attached to Morris’s complaint, Maxwell failed to submit any evidence showing that the agreement evidenced a transaction that affected, to any degree, interstate commerce.... Maxwell failed to meet her burden of proof as described in Ex parte Caver, [742 So.2d 168 (Ala.1999) ], and the trial court’s denial of her motion to compel arbitration is due to be affirmed.”).

While Steele filed a response to WMF’s motion to compel arbitration in which she argued that WMF had waived its right to compel arbitration by filing its claim and receiving a judgment in the district court, she had no burden to resist arbitration because WMF had failed to make the initial showing required to compel arbitration. Aronov Realty, 838 So.2d at 358 (quoting Brown v. Dewitt, Inc., 808 So.2d 11, 14 (Ala.2001) (citing Ex parte Greenstreet, Inc., 806 So.2d 1203 (Ala.2001); Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999))). Further, the circuit court denied WMF’s motion to compel arbitration because it determined (1) that the transaction did not substantially affect interstate commerce and (2) that WMF had waived its right to compel arbitration; however, it is not necessary to address the waiver ground because WMF failed to make the showing required to compel arbitration.

The supporting affidavits filed by WMF with its postjudgment motion were not before the circuit court when it initially ruled on WMF’s motion to compel arbitration. Because a motion to compel arbitration is analogous to a motion for a summary judgment, Aronov Realty, 838 So.2d at 353 (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)), we conclude that the circuit court’s judgment is due to be affirmed. See Prudential Ins. Co. of America v. Coleman, 428 So.2d 593, 598 (Ala.1983) (“In determining the propriety of summary judgment, ... we are limited in our review to the same factors considered by the trial court when it initially ruled on the motion, Ex parte Bagby Elevator & Electric Co., Inc., 383 So.2d 173 (Ala.1980), and on such a motion the trial court can consider only the material which is before it at the time of submission of the motion. Stallings v. Angelica Uniform Co., 388 So.2d 942 (Ala.1980).”).

AFFIRMED.

YATES, P.J., and THOMPSON, J„ concur.

PITTMAN and MURDOCK, JJ., dissent.

PITTMAN, Judge,

dissenting.

I respectfully dissent from that portion of the majority’s opinion holding that WMF’s motion to compel arbitration was properly denied because WMF failed to prove that the underlying transaction between WMF and Steele had a substantial effect on interstate commerce. The record indicates that WMF attached a copy of the arbitration agreement to its motion to compel. The majority recites the language in the agreement and holds that the agreement fails to demonstrate that the underlying transaction had a substantial effect on interstate commerce. I disagree.

In Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348, 351 (Ala.2002)(plurality opinion), a case cited by the majority, the supreme court found the following language was not sufficient to prove that the underlying transaction had a substantial effect on interstate commerce:

“ ‘The parties agree that the property sold has been involved in, and necessarily involves, interstate commerce, and that any controversy, claim, complaint, or dispute arising between the parties, or between either of the parties and any real estate licensees, if the property has been closed, and the deed has been delivered to the purchaser/s, is to be settled exclusively by binding arbitration.’ ”

In so finding, the supreme court did not hold that attaching a copy of an arbitration agreement to a motion to compel arbitration would in every case be insufficient to meet a party’s burden of showing that the underlying transaction substantially affected interstate commerce. In the instant case, the arbitration agreement contained the following arbitration provision:

“(2) The parties anticipate that the funding to make Borrower’s loan pursuant to the Loan Agreement will come from sources outside the State of Alabama. Further, Lender’s credit forms and related documents are printed and data processing for Borrower’s loan is performed outside the State of Alabama. Therefore, Lender and Borrower acknowledge and agree that the Loan Agreement involves ‘commerce’ as defined in the United States Arbitration Act, Title 9, United States Code, ‘Arbitration,’ hereinafter referred to as the ‘USAA.’ ”

It is clear that the arbitration provision in the instant case specifically details the actual and intended effects of the underlying transaction on interstate commerce, unlike the provision found in Aronov Realty, which merely stated that' the parties agreed that the property at issue involved interstate commerce. This is a distinction with a difference; therefore, I must respectfully dissent.

MURDOCK, Judge,

dissenting.

The majority states that a motion to compel arbitration is analogous to a summary-judgment motion. With respect to the initial evidentiary burden of the mov-ant and, assuming the movant satisfies that burden, the subsequent shifting of the evidentiary burden to the nonmovant, this analogy is supported by our caselaw. See, e.g., Aronov Realty Brokerage, Inc. v. Morris, 838 So.2d 348 (Ala.2002) (plurality opinion).

The majority, however, attempts to extend the analogy by meshing with the foregoing evidentiary-burden principles separate and different principles pertaining to what evidence tidal and appellate courts may consider in evaluating a summary-judgment motion. Those separate principles were stated by the Alabama Supreme Court in Prudential Insurance Co. of America v. Coleman, 428 So.2d 593 (Ala.1983), a case cited by the majority, as follows:

“In determining the propriety of summary judgment, ... we are limited in our review to the same factors' considered by the trial court when it initially ruled on the motion, Ex parte Bagby Elevator & Electric Co., Inc., 383 So.2d 173 (Ala.1980), and on such a motion the trial court can consider only the material which is before it at the time of submission of the motion. Stallings v. Angelica Uniform Co., 388 So.2d 942 (Ala.1980).”

428 So.2d at 598. While these principles are well established with regard to a summary-judgment motion, see, e.g., Ex parte Organized Community Action Program, Inc., 852 So.2d 92 (Ala.2002) (quoting Bean v. State Fam Fire & Casualty Co., 591 So.2d 17, 20 (Ala.1991)), the parties have cited us to no case in which these separate principles have been applied to a motion to compel arbitration.

Assuming for the sake of discussion, however, that these separate principles are to be applied to a motion to compel arbitration, I do not believe these principles operate in the present ease so as to foreclose the trial court’s consideration of the affidavits filed by Washington Mutual Finance, LLC (“WMF”) following the trial court’s initial denial of its motion to compel arbitration.

Even as to a motion for a summary judgment, although a trial court may consider only the evidence that is before it at the time established by the trial court for submission of the motion and an appellate court’s evaluation of the trial court’s ruling on such a motion must be conducted on the basis of the same evidence the trial court had before it at the time of its ruling, this does not mean that a trial court may not reconsider its ruling, particularly a ruling denying a motion for a summary judgment. Such an order is interlocutory and, accordingly, our Supreme Court has held that it may be reconsidered by the trial court at any time before trial:

“We recognize that, in some jurisdictions, denial of a motion for summary judgment becomes the law of the case, and bars rehearing of a- subsequent motion for summary judgment unless new grounds are asserted or new proof offered .... We are of the opinion, however, that Illinois provides the better rule; a court may reconsider its ruling on a motion for summary judgment and may correct an erroneous ruling at any time before final judgment ...
“This rule is eminently fairer_De-nial of a motion for summary judgment by the presiding judge, hearing the motion under Rule 78, amounts to a denial of a final determination on the existence vel non of a genuine issue of material fact, leaving that determination to the trial judge before whom the case is set for trial. The number of times a subsequent motion for summary judgment ivill be allowed rests within the sound discretion of the judge before whom the case is to be tried.”

Food Serv. Distribs., Inc. v. Barber, 429 So.2d 1025, 1027 (Ala.1983) (emphasis added). Even evidence submitted by a non-movant in an effort to obtain a revision of an order granting a motion for a summary judgment that is interlocutory in nature because it does not constitute a complete adjudication of all claims as to all parties, see Rule 54(b), Ala. R. Civ. P., “can be considered by the court if the nonmovant can offer a proper explanation for its failure to submit the evidence earlier.” Hail v. Regency Terrace Owners Ass’n, 782 So.2d 1271, 1278 (Ala.1999).

Like an order denying a motion for a summary judgment, a trial court’s denial of a motion to compel arbitration is interlocutory. Therefore, I see no reason why it should, not be within the trial court’s discretion whether to allow such a motion to be reconsidered or renewed. In the present case, the circumstances that presented themselves were such that, in my view, the trial court abused that discretion in not allowing its order as to arbitration to be reconsidered.

In this case, WMF attached to its motion to compel arbitration the alternative-dispute-resolution agreement (the “arbitration agreement”) between it and Steele. Among the assertions contained in ' this agreement was a clause that stated, in part: “Lender and Borrower acknowledge and agree that the Loan Agreement involves ‘commerce’ as defined in the United States Arbitration Act.” The majority cites three cases for the proposition that such general recitations in an arbitration clause do not “meet a proponent’s burden of showing that a transaction did in fact substantially affect interstate commerce.” 866 So.2d at 558. See also Aronov Realty Brokerage, Inc., 838 So.2d 359 (“[A]s to Aronov’s motion to compel arbitration, we are left with: (1) the assertions of interstate impact contained within it, but which have no evidentiary significance and which cannot by themselves satisfy Aronov’s burden, to show a substantial effect on interstate commerce; and (2) the materials referenced in, and attached to, the notice of filing, excluding the apparently omitted Ross affidavit.” 838 So.2d at 355. The pertinent part of the arbitration agreement stated that “ ‘[t]he parties agree that the property sold has been involved in, and necessarily involves, interstate commerce.’ ” 838 So.2d at 351 (emphasis added)); Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 823 (Ala.2001) (“Green Tree contends that the sentence in the arbitration provision stating that ‘[t]his arbitration contract is made pursuant to a transaction in interstate commerce, and shall be governed by the Federal Arbitration Act at 9 U.S.C. § 1,’ supports its contention that the Lewises’ claims should be arbitrated. However, that statement would not support an order applying the [Federal Arbitration Act] absent a showing that the transaction out of which the arbitration agreement arose had the requisite substantial effect on interstate commerce. This is so because, without such a showing, that statement in the arbitration agreement would violate the public policy of Alabama as set forth in § 8-4-41(3), Ala. Code 1975, where the Legislature has declared that arbitration agreements are not subject to specific performance.” (emphasis added)); Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 872 (Ala.1999) (“No evidence whatsoever tends to prove the physical reality of any involvement of or effect on interstate commerce, much less any substantial effect on interstate commerce or the generation of goods or services therein. Rogers relies entirely on the recitation in the arbitration section of the contract that, ‘It is acknowledged by Owner and Contractor that the work performed pursuant to this Contract involves or affects interstate commerce.’ This recitation does not prove that the acknowledged involvement of or effect on interstate commerce is substantial. Because Rogers drafted the contract, it will be construed strictly against Rogers.” (third emphasis added)).

As indicated by the parenthetical explanations following each of the above-cited eases, the court in each of those cases explained that the conclusory allegation that a transaction has an effect on interstate commerce, without evidentiary support for such a statement, is an insufficient basis upon which to compel arbitration.

In contrast to the arbitration agreements in the three cases relied upon by the majority, the arbitration agreement in the instant case includes assertions of specific facts that, if true, would be probative of the issue whether the parties’ transaction had an effect on interstate commerce. Specifically, the arbitration agreement contains provisions stating that “[t]he parties anticipate that the funding to make Borrower’s loan pursuant to the Loan Agreement will come from sources outside the State of Alabama” and that “Lender’s credit forms and related documents are printed and data processing for Borrower’s loan is performed outside the State of Alabama.” It was undisputed that Steele signed the arbitration agreement; Steele offered no evidence to controvert the assertions contained in that agreement. Under our Rules of Evidence, such statements constitute admissions by Steele that, unlike the conclusory assertions in Aronov Realty Brokerage, Inc., Rogers Foundation Repair, Inc., and Green Tree Financial Corp., do have evidentiary significance. See Rule 801(d)(2), Ala. R. Evid.

Furthermore, no issue as to the sufficiency of the impact of the transaction on interstate commerce was raised at the hearing on the motion to compel arbitration. Instead, the trial court sua sponte raised this issue for the first time in ruling on that motion. Upon receiving the court’s order denying arbitration, WMF promptly responded with a Rule 60(b)(2) motion and the submission of affidavits that corroborated and added to the assertions contained in the arbitration agreement. One of those affidavits contained testimony from an accounting manager for WMF that corroborated the admission in the arbitration agreement as to the “anticipated” source of funds for Steele’s loan. Among other things, the accounting manager’s affidavit explained that the loan proceeds paid to Steele, as well as the loan proceeds paid to borrowers in Alabama in connection with similar loans, come from bank accounts outside the State of Alabama. Likewise, the other statement from the arbitration agreement with evi-dentiary significance (relating to the processing of Steele’s loan from outside of Alabama) was corroborated by the affidavit of a branch manager for WMF, who testified that part of the processing of loans such as and including Steele’s is handled by a “customer care center” operated by WMF in Florida.

Under the circumstances presented, I believe the trial court erred in not considering both the admissions in the arbitration agreement that detailed the underlying transaction’s actual and intended effect on interstate commerce and the affidavits submitted to the trial court following its initial ruling. I therefore respectfully dissent.

      . Unlike an order denying a motion for a summary judgment, an order granting a motion for a summary judgment as to all claims and all parties constitutes a final judgment. See Rule 54(b), Ala. R. Civ. P. It therefore cannot be reconsidered except to the extent and under the time restrictions allowed by law, including those imposed by Rule 59(b) and (e) and Rule 60, Ala. R. Civ. P. Under Rrde 60(b)(2), relief from a final judgment on the basis of “newly discovered evidence” is limited to "evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” The present case, however, involves a denial of a motion to compel arbitration, which, like a denial of a motion for summary judgment, is an interlocutory order.

      . Under Rule 54(b), except where the court directs the entry of a final judgment as to less than all of the claims or parties involved, such a judgment generally "is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

      . Of course, any effort to seek reconsideration of a motion to compel arbitration could not be successful if, in the mean time, there has been a waiver by the movant of its right to arbitrate because it has "substantially invoke[d] the litigation process and [has] thereby substantially prejudice[d] the party opposing arbitration.” See Voyager Life Ins. Co. v. Hughes, 841 So.2d 1216, 1219 (Ala.2001) (quoting Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So.2d 897, 899 (Ala.1995)).

      . See generally Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (holding that for an arbitration clause to be enforceable under the Federal Arbitration Act the transaction to which the contract relates must turn out, in fact, to involve interstate commerce, regardless of the contemplation of the parties).

      . The branch manager also testified that, ultimately, payments made by borrowers to the lender in Alabama moved out of state. Compare American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala.2000) (noting that the lender’s parent corporation was a foreign corporation with its headquarters outside Alabama, that loan proceeds came from outside Alabama, and that, ultimately, payments made by borrowers to the lender in Alabama moved out of the state) with Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000). In addition, collection calls made from the Florida customer care center constitute the basis for Steele’s counterclaim in the present case.


author: HOUSTON, Justice.

text:
    Ex parte WASHINGTON MUTUAL FINANCE, LLC. (In re Washington Mutual Finance, LLC v. Joe Ann Steele).
    1021044.
    Supreme Court of Alabama.
    May 23, 2003.
    W. Percy Badham III and Brannon J. Buck of Maynard, Cooper & Gale, P.C., Birmingham; and Edward A. “Ted” Hosp of Maynard, Cooper & Gale, P.C., Montgomery, for petitioner.
   HOUSTON, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.


author: PITTMAN, Judge.

text:
    Walter RUZIC v. STATE of Alabama ex rel. Betty J. THORNTON.
    2020231.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Douglas Rogers, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

Walter Ruzic (“the father”) appeals from a judgment of the Shelby Circuit Court purporting to find a child-support arrear-age of $57,617.04. Because we conclude that the circuit court did not have jurisdiction to enter that judgment, we dismiss the father’s appeal with instructions.

In October 1986, a Texas district court entered a judgment divorcing the father from Betty J. Ruzic, who is now known as Betty J. Thornton (“the mother”). At the time of the divorce judgment, the parties’ three children were 15,11, and 5 years old, respectively, and the Texas court directed the father to pay $500 per month to the mother as child support.

In February 1992, the State of Texas transmitted documents to the Child Support Enforcement Division of the State of Alabama Department of Human Resources, seeking enforcement of the father’s child-support obligations pursuant to the Texas divorce judgment. In March 1992, on behalf of the mother, the State of Alabama filed a petition in Baldwin County under the Uniform Reciprocal Enforcement of Support Act (“URESA”), § 30-4-80 et seq., Ala.Code 1975, seeking, among other things, the establishment of a prospective child-support order as to the father (who had moved to Alabama) and a judgment declaring- the father to be $12,042 in arrears in making child-support payments under the Texas judgment. The Baldwin Juvenile Court set the case for a hearing on the petition; after a hearing, the juvenile court entered a judgment in May 1992 declaring that the father had a duty to support the parties’ children, that $300 per month would be a reasonable amount for the father to pay, and that the father should pay $300 per month to the juvenile court clerk as ■ child support. However, the juvenile court did not find the father to be in arrears in paying the support owed under the Texas judgment, and it entered zeroes in blanks provided on the judgment form for the amount of the father’s child-support arrearage and for the amount owed by the father as “reimbursement.” No appeal was taken by either party from that judgment.

Although the Baldwin Juvenile Court had found that the father owed no arrear-age under the Texas divorce judgment in May 1992, the State (on behalf of the mother) later filed a petition in Baldwin County seeking a judgment declaring the father to be $22,422 in arrears under the Texas divorce judgment and $900 in arrears under the juvenile court’s 1992 URESA judgment. The father filed an answer asserting that the arrearage claim arising under the Texas divorce judgment was barred by the doctrine of res judicata because, he said, the 1992 URESA judgment had determined that he was not in arrears in paying support under the Texas judgment. The State subsequently petitioned to modify the Baldwin Juvenile Court’s 1992 URESA judgment so as to increase the father’s child-support obligation beyond that established in that judgment. The record does not reflect whether these two petitions were acted upon, although the Baldwin Juvenile Court did deny the State’s “motion for case review” in April 1996.

After the mother and the youngest child had moved to Jefferson County, Alabama, the State filed a petition requesting that the father be held in contempt for failure to pay support owed under the Baldwin Juvenile Court’s 1992 URESA judgment. The State also filed a motion to transfer the pending child-support action to Jefferson County; that motion was granted, and the case was transferred to the Jefferson Juvenile Court. However, because the mother subsequently moved from Jefferson County to Shelby County, the Jefferson Juvenile Court took no action on the merits of the case;' instead, that court transferred the case to Shelby County, where the Shelby District Court (sitting as that county’s juvenile court pursuant to § 12-15-2, Ala.Code 1975) took jurisdiction over the case.

In June 1999, the State (on behalf of the mother) filed a petition in the Shelby District Court alleging that the father was $4,695 in arrears under the 1992 URESA judgment and $18,342 in arrears under the 1986 Texas divorce judgment. In November 1999, after the father had failed to appear, the Shelby District Court entered a default judgment against the father that, as amended, declared the father to be $19,842 in arrears as to his child-support obligations. An income-withholding order issued by the Shelby District Court in January 2000 directed the father’s employer to withhold $300 per month as current child support, and it found that the father owed $20,841.84 in past child support. The father was arrested and incarcerated because of his failure to appear, but he was discharged from confinement after paying $5,000 and executing a $16,000 appearance bond.

In August 2000, the father filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., for relief from the Shelby District Court’s November 1999 default judgment. He contended that that judgment had been based upon an arrearage that included sums allegedly owed under the 1986 Texas divorce judgment; he further asserted that the State’s claim that the father was in arrears under the Texas divorce judgment was barred by the doctrine of res judicata because, he said, that claim was contrary to the Baldwin Juvenile Court’s intervening May 1992 URESA judgment that had found him not to be in arrears under the Texas divorce judgment. The State then amended its contempt petition, with leave of the Shelby District Court, so as to specifically allege that the father was in arrears under both the Texas divorce judgment and the Baldwin County URE-SA judgment and that the amounts owed under those judgments should be calculated separately.

After a hearing, the Shelby District Court issued a judgment on February 28, 2001, granting the father’s motion for relief from the November 1999 default judgment, amending the default judgment so as to remove the child-support arrearage allegedly arising under the Texas divorce judgment, and stating that the father owed only those sums due under the Baldwin Juvenile Court’s May 1992 URESA judgment that had not been paid. That judgment was entered by the district court clerk on March 1, 2001.

Because the Shelby District Court sat as the juvenile court in this child-support action, Rule 28(C), Ala. R. Juv. P., which applies to all appeals from juvenile courts, required the State, if it wished to appeal from the judgment entered on the father’s Rule 60(b) motion deleting the child-support arrearage allegedly arising under the Texas divorce judgment from the November 1999 judgment, to appeal within 14 days of the judgment granting that motion and amending the district court’s judgment. The State therefore had until March 15, 2001, to file a notice of appeal. However, the State did not appeal from the Shelby District Court’s judgment until April 30, 2001, at which time it filed a notice of appeal to the Shelby Circuit Court and an affidavit of its counsel. According to counsel’s affidavit, copies of the March 1, 2001, judgment of the Shelby District Court were not mailed to the parties until April 16, 2001; counsel averred that the notice of appeal to the circuit court was filed within 14 days of that mailing date. There is no indication in the record that the. State sought or obtained an extension of time to appeal from the district court pursuant to Rule 77(d), Ala. R. Civ. P., which provides, in pertinent part:

“Lack of notice of the entry [of an order or judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except that upon a showing of excusable neglect based on a failure of the party to learn of the entry of the judgment or order the circuit court in any action may extend the time for appeal not exceeding thirty (30) days from the expiration of the original time now provided for appeals in civil actions.”

Although “[t]he question of jurisdiction is always fundamental” and “jurisdiction over the subject matter cannot be created by waiver or consent,” Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967), the Shelby Circuit Court nevertheless ordered the case set for a trial. After holding a trial on the merits, the circuit court purported to enter an order in May 2002 finding the father to be $53,351.54 in arrears under the child-support provisions of the Texas divorce judgment and $4,265.50 in arrears under the 1992 TJRESA judgment; it reserved jurisdiction to determine how the arrearages would be satisfied. The father then requested the circuit court to alter, amend, or vacate its order, and the State filed a motion to establish a payment schedule. In September 2002, the circuit court purported to enter another order; that order directed the father to make payments of $500 per month and to file claims for credits against the arrearages.

In November 2002, the circuit court purported to enter an order on the case action summary sheet declaring that the father had not presented any claims for credits against the arrearages found in its May 2002 order, labeling its earlier orders “final,” and taxing costs. The father filed a notice of appeal to this court within 42 days of the circuit court’s November 2002 order entered on the case action summary sheet.

Although neither party has questioned our appellate jurisdiction, choosing instead to focus on whether the Baldwin Juvenile Court’s 1992 URESA judgment is res judicata as to further enforcement proceedings in Alabama respecting any child-support arrearages that accrued under the Texas divorce judgment, “we must consider whether we have jurisdiction over this appeal, because ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “ ‘Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.’ ” Singleton, 716 So.2d at 225 (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1988)). In Singleton, we dismissed an appeal from a circuit court’s judgment entered after an untimely appeal from a judgment of a district court, holding that the circuit court’s judgment was void because the circuit court did not have jurisdiction to hear the appeal:

“ ‘Since the appeal was not timely taken, the circuit court had no jurisdiction over the appeal; that is, it had no jurisdiction over the subject matter. Because of such lack of jurisdiction, the final judgment ... as entered by the circuit court was void and will not support the appeal to this court. That lack of jurisdiction follows from the circuit court even to the appeal taken to this court for “whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Since jurisdiction over the subject matter may not be waived and since this court observed that jurisdictional defect in the record on appeal, the appeal in this case must be dismissed.’ ”

Singleton, 716 So.2d at 226 (citations omitted; quoting Davis v. Townson, 437 So.2d 1305, 1305-06 (Ala.Civ.App.1983)).

In this case, the State filed its notice of appeal from the Shelby District Court’s March 1, 2001, judgment 60 days after that judgment was entered, well outside the 14-day limit specified in Rule 28(C), Ala. R. Juv. P. It attempted to justify its tardiness in invoking the circuit court’s appellate jurisdiction by filing with its notice of appeal an affidavit stating that the district-court clerk had failed to notify the State by mail of the entry of the judgment. However, “Rule 77(d), Ala. R. Civ. P., exclusively governs situations in which a party claims lack of notice of the entry of a judgment or order.” Hopper v. Sims, 777 So.2d 122, 125 (Ala.Civ.App.2000) (emphasis added); accord, Bacon v. Winn-Dixie Montgomery, Inc., 730 So.2d 600, 602 (Ala.1998). As we have noted, the State did not seek or receive relief under Rule 77(d) from the district court. In fact, it is doubtful whether the State would have been entitled to receive from the district court an extension of time within which to appeal without a showing of anything more than a failure of the clerk to notify the State of the March 1, 2001, judgment. See Hopper, 777 So.2d at 125 (discussing the necessity of a party’s diligence in “keeping abreast of the status of [the party’s] case”); and Bacon, 730 So.2d at 603 (the failure of the clerk’s office to notify an appellant of a judgment, although “regrettable,” was held not to amount to “excusable neglect” under Rule 77(d)).

Had the State successfully sought relief under Rule 77(d) from the Shelby District Court so as to permit the State to file an appeal beyond the 14-day period specified in Rule 28(C), Ala. R. Juv. P., we might arguably have reached a different conclusion concerning the circuit court’s jurisdiction. See Ex parte H.F., 843 So.2d 190 (Ala.2002), and Ex parte S.W.T., 782 So.2d 766 (Ala.2000) (both holding that when a juvenile court enters an order under Rule 77(d) finding “excusable neglect” and allows additional time for filing a notice of appeal from its judgment, and when no party objects to that order, that order will support a reviewing court’s appellate jurisdiction). However, in the absence of such facts in this case, we conclude that the circuit court did not have jurisdiction to review the judgment of the Shelby District Court, which granted the father’s motion for relief from the November 1999 default judgment and limited the State’s arrearage claim to those amounts accruing under the Baldwin Juvenile Court’s May 1992 URESA judgment. Because the circuit court lacked jurisdiction to hear the State’s appeal, its subsequent judgment is void and will not support an appeal to this court. Therefore, the Shelby District Court’s judgment remains in effect. See Singleton, 716 So.2d at 226. We therefore dismiss the father’s appeal to this court; the circuit court is to set aside its void judgment of November 2002 and dismiss the State’s appeal to that court. Id.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.

MURDOCK, J., concurs in the result.

      . URESA was repealed, effective January 1, 2000, by Act No. 97-245, 1997 Ala. Acts, which enacted the Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala.Code 1975.

      . We note that where a proper postjudgment motion has been timely filed in a case pending before the district court sitting as the juvenile court (i.e., within 14 days of the entry of the judgment, as provided in Rule 1(B), Ala. R. Juv. P.), a notice of appeal may be filed within 14 days after the juvenile court has ruled on that motion or the motion is deemed denied by operation of law. See J.S. v. State Dep't of Human Res., 597 So.2d 1376 (Ala.Civ.App.1992); § 12-12-70(a), Ala.Code 1975. In this case, no postjudgment motions were filed in the Shelby District Court after the entry of the judgment on March 1, 2001, granting the father’s motion for relief from the November 1999 default judgment.

      . Rule 1(A), Ala. R. Juv. P., provides that if no procedure is specifically provided in those rules or by statute, the Rules of Civil Procedure apply to the extent they are "not inconsistent” with the Rules of Juvenile Procedure. Rule 77(d), Ala. R. Civ. P., which is made applicable to district courts pursuant to Rule 77(dc), Ala. R. Civ. P., has been held to apply in juvenile-court proceedings. Ex parte S.W.T., 782 So.2d 766 (Ala.2000).

      . When an appeal is properly taken from the district court's ruling on a motion for relief from a judgment pursuant to Rule 60(b), Ala. R. Civ. P., the circuit court's function is simply to review the motion "and its supporting material on their merits [so] as to [determine] whether relief should be granted under Rule 60(b).” Evans v. Sharp, 617 So.2d 1039, 1040 (Ala.Civ.App.1993); accord, Neal v. Wilson Lumber Co., 410 So.2d 404, 405-06 (Ala.Civ.App.1981), aff'd, 410 So.2d 407 (Ala.1982).

      . According to the “Committee Comments to June 20, 1989, Amendment to Rule 77(dc),” Ala. R. Civ. P., that rule "make[s] it clear that an extension of time for appeal based on a failure to learn of the district court's judgment is available only from the district court.”