author: CRAWLEY, Judge.

text:
    Ray WADKINS et al. v. Clark MELTON.
    2001144.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012386.

      J. Kevin Moulton, Dothan, for appellants.
    Douglas M. Bates, Dothan, for appellee.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on June 28, 2002, is withdrawn, and the following is substituted therefor.

Ray Wadkins and other members of his family who share an interest in land filed an . adverse-possession claim in 1998 against Clark Melton to determine the boundary fine between Wadkins and Melton’s coterminous lands. They also sought compensation for the costs of a fence Melton had removed, the survey costs incurred to relocate the fence line, and court costs. Melton answered and counterclaimed, seeking, among other things, damages for trespass and recovery of the property included in Wadkins’s complaint.

Following an ore tenus proceeding and a personal viewing of the disputed land, the trial court determined that neither party had adversely possessed the disputed land and that the boundary line was set out in the deed. Wadkins appealed.

“It is well established that when a trial court, after ore tenus proceedings, enters a judgment setting a boundary line between coterminous landowners, that judgment is presumed correct if it is supported by credible evidence. Valentine v. Ireland, 580 So.2d 581 (Ala.1991). Further, the presumption of correctness that attaches to the findings of fact made by the trial court when it hears ore tenus testimony is particularly strong in adverse-possession cases. Lilly v. Palmer, 495 So.2d 522 (Ala.1986)....”

Henderson v. Dunn, [Ms. 2991235, November 16, 2001] - So.2d -, - (Ala.Civ.App.2001). “[T]he presumption [of correctness] is further enhanced if the trial court personally views the property in dispute.” Bell v. Jackson, 530 So.2d 42, 44 (Ala.1988).

Wadkins argues that the trial court’s judgment is unsupported by the evidence and that it misapplied the law to the undisputed facts. After a thorough review of the record and the applicable law, we conclude that Wadkins is correct. Although the trial court had the advantage of personally viewing the witnesses and the disputed property, there was no dispute as to the two controlling issues in the case, namely: where the fence was located and how long the fence had existed and how the disputed property had been used by Wadkins’s family and its tenants for the 10-year period necessary for adverse possession. Therefore, we conclude that the trial court had no material advantage over this court, and its judgment is due to be reversed.

“Alabama recognizes two types of adverse possession: (1) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975, and (2) adverse possession by prescription. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,
“ ‘ “Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See, Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See, Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).” ’
562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980) (emphasis omitted [in Henderson])). Further, our Supreme Court has consistently held that boundary disputes between coterminous landowners are hybrid types of adverse possession subject to a unique set of requirements and a period of adverse possession of only 10 years, even if none of the three additional elements described in § 6-5-200 is present. E.g., Sashinger v. Wynn, 571 So.2d 1065 (Ala.1990); Johnson v. Brewington, 435 So.2d 64 (Ala.1983).”

Henderson, - So.2d at -.

Background

Melton’s land is bordered on the east and south sides by Wadkins’s land. It is undisputed that, for at least 10 years and probably for over 30 years, a wire-mesh fence running north and south existed on the east side of Melton’s land. Melton’s property was predominately timberland all the way to the wire-mesh fence. On the east side of the fence line, however, a portion of the property described in Melton’s deed had been cleared and was being used by Wadkins. We shall refer to that property as “the eastern strip.” Wadkins claimed that his family had adversely possessed the eastern strip to the wire-mesh fence. The ownership of land on the south side of Melton’s property, which we shall refer to as “the southern strip,” was also disputed. The Wadkinses claimed that they adversely possessed the southern strip to a tree line that they say forms the boundary between the property and Melton’s.

The undisputed evidence showed that a portion of the property described in Melton’s deed was timberland until about 1968, when it was cleared by one of Wad-kins’s tenants; since then the property has been used by the Wadkins family or Wad-kins’s tenants for growing crops. The boundary-line dispute arose after George Jeffcoat, who was a tenant of Wadkins, removed a portion of the fence at the southeastern-most point of Melton’s land to use an irrigation system he had installed. Melton asked to be compensated for the use of his lands for the irrigation system. Wadkins stated that Jeffcoat installed the “center pivot irrigation system” for use on the southern portion of Wadkins land after signing the last lease in 1997. He said that Jeffcoat had to remove the southeast portion of the fence because of the irrigation system.

At the southeast corner of Melton’s land, the wire-mesh fence included a gate that Jeffcoat had removed when he installed the irrigation system. Melton stated that although the gate could have been closed, it was always left open. Melton admitted that, despite his contention that the gate was on his land, he did not complain to anyone when the gate was removed.

Wadkins argues that he presented clear and convincing evidence to support his family’s claim that it had acquired title to both the eastern strip and the southern strip through adverse possession. “In an adverse-possession case, the party asserting a claim to the property through adverse possession must show by clear and convincing evidence that there was ‘actual, hostile, open, notorious, exclusive, and continuous’ possession for the statutory period.” Henderson, - So.2d at -, quoting Grooms v. Mitchell, 426 So.2d 820, 822 (Ala.1983). “[T]he burden of proof rests upon the party asserting adverse possession, and every presumption is in favor of the holder of legal title.” Lee v. Brown, 482 So.2d 293, 295 (Ala.1985). We will first determine whether the use of the disputed land was open, notorious, exclusive and continuous.

Open, Notorious, Exclusive, and Continuous

Melton testified that he purchased the land in 1990 and that he did not obtain a survey before he purchased it. He said that he drove around the property with Fred Garner, who was a relative of Wad-kins and whose heirs were coplaintiffs in this case. Melton, however, did not testify that Garner showed him where Garner thought the boundary line was located. None of the Wadkins family members, other than Wadkins, testified. Melton testified that after he purchased the property he removed the wire-mesh fence on the eastern strip because it was on his land. Melton had the land surveyed in 1993 and learned that the boundary line recited in the deed to his property was to the east of the wire-mesh fence. A note on the 1993 survey specifically stated that the property that we refer to in this opinion as “the eastern strip” was “claimed by others.”

Tom Layton, who was called as a witness by Melton, testified that he had lived in the area where the disputed land was located for approximately 40 to 50 years, that he knew both Wadkins and Melton, and that he used to sharecrop with Wad-kins’s family. Layton said that, while he was working on the Wadkinses’ land in 1974 or 1975, he constructed a fence of wire mesh with barbed-wire on top (“the second fence”). He said that he put the second fence “up against” the original wire-mesh fence, “right next to” the original fence it replaced. Neither party introduced any further evidence as to who erected the original fence or when it was erected.

Wadkins, who was born in 1952 and was, at the time of trial, the manager of his family’s property, testified that his family purchased the property in 1954. He testified that, as far back as he could remember, there had always been a wire-mesh fence on the eastern strip and the eastern strip had always been used either to grow crops or to pasture cattle. Wadkins recalled that when he was seven or eight years old, a tenant named Mr. Worthy had used the eastern strip to grow peanuts.

Wadkins stated that, after Melton removed the wire-mesh fence (including what remained of the original fence and the second fence erected in 1974), a tenant named Bill Shiver constructed a barbed-wire fence (“the third fence”) in the mid-1990s and that it was located approximately 10 to 15 feet east of where the wire-mesh fence had stood. Wadkins said that, despite the new fence line, his family had continued to maintain that the boundary line was where the wire-mesh fence had stood. Melton eventually removed the barbed-wire fence. Melton admitted that both fences were constructed on what he believed to be his land. He also admitted that he did not remove the barbed-wire fence until after it had stood for “a couple of years.”

Wadkins stated that the Laytons had farmed the land beginning in approximately 1970. Wadkins said that, as was the case with all the tenants, during Layton’s time on the land the eastern strip was sometimes used as pasture land for cows all the way to the fence line. Wadkins stated that the tenants were responsible for maintaining the fence line. Wadkins said Bill Shiver was the tenant from about 1990 to 1994 and that Jeffcoat became the tenant of the land in approximately 1994 and was still farming the land. Jeffcoat testified that he was told that the land he was leasing extended to the wire-mesh fence line.

After thoroughly reviewing the record, we hold that the evidence was clear and convincing that Wadkins’s use of the eastern strip was open, notorious, exclusive, and continuous. In Alabama, the existence of a fence, coupled with the pasturing of animals or the cultivation of land has been held to be sufficient evidence to support a finding that the possession was open and notorious. Lilly v. Palmer, 495 So.2d 522 (Ala.1986). Each type of use need not be continuous. Id. “ ‘To constitute an actual possession of land it is only necessary to put it to such use or exercise such dominion over it as in its present state it is reasonably adapted to.’ ” James v. Mizell, 289 Ala. 84, 88, 265 So.2d 866, 869 (1972) (quoting Moorer v. Malone, 248 Ala. 76, 78, 26 So .2d 558, 559 (1946)). The fact that use of the eastern strip by Wadkins’s tenants was visible from the county highway north of the property further supports Wadkins’s claim that the use of the strip was open and notorious. Over the years, Wadkins’s family had leased their land to several tenant farmers. “[T]he acts of a tenant inure to the benefit of his landlord where the landlord is an adverse possessor.” Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 619 (Ala.1980).

Melton concedes that the Wadkins family’s use of the field road was open, but he contends that it was not exclusive. The only evidence indicating that someone other than a member of Wadkins’s family or its tenants used the eastern strip was that Bill Shiver’s brother, Eb, used a field road to the east of the wire-mesh fence line as a means of ingress to and egress from his landlocked property. The use of a field road to access landlocked property, however, is presumptively permissive. See Cotton v. May, 293 Ala. 212, 301 So.2d 168 (1974). Wadkins testified that his family members also used the field road. There was no testimony as to any use of the field road by Melton’s predecessors in title. We conclude that Wadkins presented clear and convincing evidence that his family’s possession of the eastern strip was exclusive and continuous for the required 10-year period.

We now turn to the issue whether Wad-kins proved that his family’s use of the eastern strip was hostile.

Hostile

To prevail on his adverse-possession claim, Wadkins was required to present clear and convincing evidence to overcome the presumption that his family’s use the eastern strip was permissive. The trial court’s judgment did not include any finding of facts; therefore, we are required to assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Bearden v. Ellison, 560 So.2d 1042 (Ala.1990).

“It is well settled that entry upon and possession of land with permission of the owner will not ripen into title by adverse possession.” Wallace v. Putman, 495 So.2d 1072, 1076 (Ala.1986).

“In order to change possession from permissive to adverse, the possessor must make a clear and positive disclaimer or repudiation of the true owner’s title. The possessor must give the true owner actual notice of such disavowal, or he must manifest acts or make a declaration of adverseness so notorious that actual notice will be presumed.”

Moss v. Woodrow Reynolds & Son Timber Co., 592 So.2d 1029, 1031 (Ala.1992). “The presence of a fence, which is an outstanding symbol of possession, coupled with normal acts of use in appropriation of the land, sufficiently satisfies the requirements of adverse possession.” Bearden v. Ellison, 560 So.2d 1042, 1045 (Ala.1990). The trial court was authorized to conclude that a member of the Wadkins family or one of its tenants built the original wire-mesh fence before 1974. The evidence was undisputed that Wadkins’s tenant Layton built the second fence in 1974. We conclude that Wadkins’s building of the wire-mesh fences, in addition to his family’s use of the land, was sufficient to show that his family’s use of the disputed land was hostile. “ ‘When one of the coterminous proprietors builds a fence as the dividing line and occupies and claims to it as such, with knowledge of the other, the claim of the former is presumptively hostile and the possession adverse.’ ” Garringer v. Wingard, 585 So.2d 898, 900 (Ala.1991) (quoting Smith v. Brown, 282 Ala. 528, 535, 213 So.2d 374, 380 (1968)).

When Layton erected the second fence, it took the place of the original fence that was deteriorating and in need of repair. There was no evidence indicting that Melton’s predecessors in title objected to the construction of the second fence on their property. Wadkins testified that he had no knowledge of there ever having been a dispute with the previous owners of Melton’s land over the property line. Melton’s predecessor in title did not testify.

The same is true where an adverse landowner clears land beyond a survey line. “Cutting of timber, although it may not, standing alone be sufficient, is one factor to consider.” Kubiszyn v. Bradley, 292 Ala. 570, 575, 298 So.2d 9, 13 (1974). The southern strip had no fence line and had been cleared by Wadkins’s tenant beyond the survey line. Wadkins had also built a deer stand on the southern strip in the “mid '80s.” Melton admitted that the deer stand was on his property.

To prove adverse possession of the southern strip, Wadkins was not required to show that he purposely intended to take Melton’s land. “If a coterminous landowner holds actual possession of a disputed strip under claim of right, openly and exclusively for a continuous period of 10 years, believing that he is holding to the true line, he will acquire title to that line, even though the belief as to the correct location of the line originated in a mistake.” Scarbrough v. Smith, 445 So.2d 553, 556 (Ala.1984) (emphasis added). “[Ojne does not have to be a willful land-grabber or dishonest in order to acquire title by adverse possession.” Sylvest v. Stowers, 276 Ala. 695, 699, 166 So.2d 423, 427 (1964).

We acknowledge that it is rare in boundary-line disputes for an appellate court to reverse a trial court’s judgment. As stated in Lilly v. Palmer, 495 So.2d at 530:

‘We reiterate that it is a rare case when this Court will overturn a finding by a trial judge who hears an adverse possession case presented ore tenus, but this is one of those rare cases.
“[The adverse claimant’s] evidence was uncontradicted, and we hold that as a matter of law, [he] hostilely, openly, notoriously, actually, exclusively, and continuously possessed the property for the requisite statutory period of 10 years.”

We remand this case to the trial court with instructions to render a judgment for Wadkins consistent with this opinion. The trial court is directed to determine the appropriate boundary-line coordinates for the southern boundary of Melton’s land, which should be where the tree line is located. The original wire-mesh fence line shall be the east boundary line of Melton’s land.

OPINION OF JUNE 28, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    William E. Melendez MENENDEZ v. COLSA, INC.
    2010377.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1020036.

      J. Allen Brinkley and Richard Chesnut of Brinkley & Chesnut, Huntsville, for appellant.

      Gary L. Rigney, general counsel, COL-SA, Inc., Huntsville, for appellee.
   CRAWLEY, Judge.

' William E. Melendez Menendez (“the plaintiff’) appeals from a summary judgment entered by the Madison Circuit Court in his action, brought under Alabama’s version of the Uniform Enforcement of Foreign Judgments Act (“UEF-JA”), to register a judgment entered in his favor by a court of the Commonwealth of Puerto Rico on an unpaid-wage claim against COLSA, Inc. (“the defendant”). We reverse and remand.

In March 1992, the plaintiff, then a senior programmer for the defendant at the Roosevelt Roads United States Naval Base in Puerto Rico, brought an action in the San Juan district court, claiming that the defendant owed him certain sums for overtime work pursuant to the laws of Puerto Rico. The defendant appeared in that action, but did not answer the complaint, and the district court entered a judgment in August 1992 in favor of the plaintiff, awarding him $29,082.24 in overtime pay and $29,082.24 ás a penalty, plus interest at an annual rate of 7.5 percent and an attorney fee of $5,000. The defendant did not appeal from that judgment.

In March 1996, the defendant initiated in the Court of First Instance of Puerto Rico, Superior Court of San Juan, a collateral attack on the August 1992 judgment, asking that court to vacate the district court’s judgment because, it said, that court was without subject-matter jurisdiction to render the judgment. The parties filed cross-motions for a summary judgment in the collateral proceeding; subsequently, in August 1997, the Court of First Instance granted the plaintiffs summary-judgment motion and denied the defendant’s summary-judgment motion. The case was appealed to the Circuit Court of Appeals, San Juan Regional Circuit; in April 1998, that court affirmed the August 1997 summary judgment entered by the Court of First Instance. In November 1998, the Supreme Court of Puerto Rico issued an order denying review of the appellate court’s decision.

In May 2001, the plaintiff filed his action in Madison County, seeking to register the August 1992 judgment. The defendant filed a motion to dismiss, contending, among other things, that the San Juan district court did not have subject-matter jurisdiction to enter the August 1992 judgment and that a Puerto Rican rule of civil procedure barred any attempt to enforce a judgment after five years had elapsed from the date of its entry. The parties submitted extensive legal memoranda in support of their respective positions. On October 31, 2001, the trial court, construing the defendant’s motion as a motion for a summary judgment, entered a summary judgment in favor of the defendant, agreeing with its contentions regarding subject-matter jurisdiction and the timeliness of the plaintiffs enforcement proceeding. The plaintiffs appeal to the Alabama Supreme Court was transferred to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Under Rule 56(c)(3), Ala. R. Civ. P., a trial court is authorized to enter a summary judgment when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Because the pertinent facts in these cases are undisputed, we review the trial court’s application of law to those facts to determine whether the defendant was entitled to a judgment as a matter of law. See Carpenter v. Davis, 688 So.2d 256, 258 (Ala.1997). We review the trial court’s judgment under a de novo standard. See Hipps v. Lauderdale County Bd. of Educ., 631 So.2d 1023, 1025 (Ala.Civ.App.1993).

The UEFJA provides a mechanism for the domestication of a “foreign judgment” through its filing in the office of any circuit-court clerk in Alabama. See § 6-9-232, Ala.Code 1975. The UEFJA defines “foreign judgment” as “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Ala.Code 1975, § 6-9-231. While Puerto Rico is not a “state” such that the Full Faith and Credit Clause of Article Four, § 1, of the United States Constitution would be directly applicable to judicial proceedings of Puerto Rican courts, Congress has provided that “[t]he records and judicial proceedings of any court of any [U.S.] State, Territory or Possession” “shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of [the] State, Territory or Possession from which they are taken.” 28 U.S.C. § 1738. This statute requires Alabama courts to afford full faith and credit to judicial proceedings of U.S. territories, such as Puerto Rico. See Feore v. Feore, 627 So.2d 411, 413-14 (Ala.Civ.App.1993) (affording full faith and credit, pursuant to 28 U.S.C. § 1738, to a divorce judgment entered by Guam court).

While Alabama courts are generally required to give a judgment entitled to full faith and credit at least the res judica-ta effect accorded in the rendering court’s jurisdiction, Alabama courts are permitted to inquire into the jurisdiction of the rendering court. Feore, 627 So.2d at 413; accord, Republic Nat’l Bank v. Howell, 456 So.2d 58, 59 (Ala.1984). However, the appropriate inquiry is limited to ascertaining “ ‘(1) whether the issue of jurisdiction was fully and fairly litigated by the foreign court and (2) whether the issue of jurisdiction was finally decided by the foreign court.’ ” Feore, 627 So.2d at 413 (quoting Alston Elec. Supply Co. v. Alabama Elec. Wholesalers, Inc., 586 So.2d 10, 11 (Ala.Civ.App.1991)). In short, if jurisdiction is not lacking, an Alabama court must' give full faith and credit to a foreign judgment under the UEFJA. Feore, 627 So.2d at 413. The burden is on a party challenging the validity of the foreign judgment to assert and demonstrate the rendering court’s lack of jurisdiction. Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993).

In this case, the defendant must demonstrate not only the lack of jurisdiction of the San Juan district court to enter its August 1992 judgment awarding the plaintiff overtime pay, a penalty, interest, and an attorney fee, in order to prevail. The defendant must also demonstrate the lack of jurisdiction of the Court of First Instance of Puerto Rico, Superior Court of San Juan, which entered a judgment in August 1997 concluding that the August 1992 judgment was within the San Juan district court’s subject-matter jurisdiction, and of the Circuit Court of Appeals, San Juan Regional Circuit, which affirmed the August 1997 judgment.

The defendant contends that the Puerto Rican courts lacked subject-matter jurisdiction to decide the plaintiffs claim against the defendant .because the plaintiffs claim arose from transactions on the Roosevelt Roads Naval Base, which, it argues, is a federal “enclave” within Puerto Rico, and the plaintiff sought relief under Puerto Rican employment law. We believe this contention conflates the concepts of subject-matter jurisdiction, i.e., the power of a court to grant relief, and choice of law, i.e., the legal principles that must be applied by a court having jurisdiction in deciding whether to grant the requested relief. Under Feore and other Alabama cases, only the subject-matter jurisdiction of a foreign court may be examined. See Feore, 627 So.2d at 413; Great Am. Lines, Inc. v. Burks, 631 So.2d 907, 908 (Ala.1993) (holding that Alabama law prohibits inquiry into the merits of a foreign judgment a party seeks to domesticate); Forbes v. Davis, 187 Ala. 71, 77, 65 So. 516, 517 (1914) (holding that nonjurisdictional irregularities in proceedings leading up to a duly authenticated judgment cannot impeach or qualify that judgment); see generally Restatement (Second) of Conflict of Laws § 106 (1971) (stating that errors of fact or law will not bar extraterritorial enforcement of a judgment entered within the rendering court’s jurisdiction).

We now turn to the jurisdiction of Puerto Rican courts to decide controversies arising on the Roosevelt Roads Naval Base. Despite the defendant’s contentions to the contrary, Puerto Rican courts have held that they have jurisdiction to decide civil controversies such as that existing between the plaintiff and the defendant. Although noting that the United States government has exclusive legislative jurisdiction over Roosevelt Roads Naval Base, the Supreme Court of Puerto Rico unanimously held in Roberts v. USO Council of Puerto Rico, 145 P.R. Dec. 58 (1998), that the courts of Puerto Rico have full jurisdiction to entertain civil claims arising in federal lands located in Puerto Rico, including Roosevelt Roads Naval Base. To like effect is Quites Viuda de Fonte v. Colsa, Inc., 147 P.R. Dec. 360 (1999), in which the Puerto Rico Supreme Court concluded that a Puerto Rico trial court had jurisdiction to hear a civil action against the defendant in this case arising from allegedly negligent administration of a group-life-insurance plan. Accord, Sopena v. Colejon Corp., 920 F.Supp. 259, 264-65 (D.P.R.1996) (recognizing that Puerto Ri-can and federal courts would have concurrent jurisdiction over overtime-wage claims asserted by employees at Roosevelt Roads Naval Base); Lebron Diaz v. General Sec. Servs. Corp., 93 F.Supp.2d 129, 135 (D.P.R.2000) (stating that “[n]o invisible wall surrounds federal enclaves generally, or the federal court in Puerto Rico specifically, necessarily putting [such an enclave] beyond the reach of a local court”).

In addition to the existence of precedent favoring the San Juan district court’s exercise of subject-matter jurisdiction over the plaintiffs claim against the defendant, the precise question of subject-matter jurisdiction has been fully and fairly litigated in the courts of Puerto Rico. The Court of First Instance denied the defendant’s collateral attack on the underlying August 1992 judgment, citing Nolla, Galib & Cia. v. Superior Court, 93 P.R.R. 630 (1966), for the proposition that Puerto Rico courts have jurisdiction over wage claims filed by workers and employees working at a United States naval base. The Court of First Instance’s judgment was affirmed by the Circuit Court of Appeals, which cited both Nolla, Galib & Cia. and Roberts in support of its conclusion that the San Juan district court properly took jurisdiction of the plaintiffs wage claim in this case. We conclude that the issue of the San Juan district court’s subject-matter jurisdiction has been fully and fairly litigated, and that that issue has been finally decided in favor of the validity of the judgment that the plaintiff seeks to register.

The defendant, however, complains that the Puerto Rican judgment relies upon Puerto Rican substantive labor law, rather than upon potentially applicable federal labor law such as the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. There is, indeed, authority for the proposition that an employee cannot obtain remedies under Puerto Rico wage-and-hour laws in an action arising from labor performed on federal enclaves in Puerto Rico, such as Roosevelt Roads Naval Base. See, e.g., Koren v. Martin Marietta Servs., Inc., 997 F.Supp. 196 (D.P.R.1998). Such authority tends to undermine the substantive correctness of the San Juan district court’s judgment — the plaintiffs complaint sought relief under Puerto Rican wage- and-hour laws, and the judgment in his favor awarded him the relief sought in the complaint. However, as we have indicated, the merits of the Puerto Rico courts’ judgments are not, under Feore, Great American Lines, Forbes, and the Restatement, within the proper scope of inquiry of a court considering whether a foreign judgment may be registered in Alabama under the UEFJA. The defendant appeared in the action in the San Juan district court and could have asserted its substantive defenses to the plaintiffs claims; moreover, it could have appealed from the final judgment of that court to the appropriate appellate tribunal in Puer-to Rico. The defendant did neither, and it is clearly not the place of an Alabama court to second-guess the substantive correctness of the judgment entered in the plaintiffs favor at this late date.

The defendant further contends that the judgment entered by the San Juan district court in August 1992 is no longer enforceable in Puerto Rico, and that for that reason, the judgment can no longer be registered in Alabama. We disagree. While Rule 51.1 of the Puerto Rico Rules of Civil Procedure provides that a party may “execute” a judgment by filing a petition in the rendering court within five years of the judgment’s entry, after which the party must obtain leave of the rendering court to file such a petition, that provision does not amount to a rule of prescription barring revivor or enforcement of the judgment by another court. Rather, a Puerto Rican statute, 31 P.R. Laws Ann. § 5294, provides for a 15-year period during which a judgment debt may be collected by a separate action. The Puerto Rico Supreme Court, the United States District Court for the District of Puerto Rico, and the San Juan Regional Circuit Court of Appeals have each held that the 15-year period, rather than the 5-year period, applies to actions to collect judgments. Padilla v. Vidal, 71 P.R.R. 483, 491-92 (1950); FDIC v. Talleres Industriales de Puerto Rico, Civ. No. 87-1484(JP) (D.P.R. Oct. 18, 1994) (not reported in F.Supp.); Pagan de Joglar v. Cruz Viera, 136 P.R. Dec. 750, 758 (1994); Galaxy Inv., Inc., v. Reus, [No. 92-13223(603)] (P.R. Cir.Ct.App. Mar. 21, 2002).

Thus, we conclude that a separate collection action against the defendant to enforce the San Juan district court’s judgment would have been timely if filed in a Puerto Rican court. Moreover, the plaintiffs action to domesticate the Puerto Rico judgment was filed well within Alabama’s 20-year limitation period for bringing an action on a judgment of any court of any state or territory of the United States. See § 6-2-32, Ala.Code 1975. The trial court therefore erred in entering a summary judgment in favor of the defendant in the plaintiffs action, brought under the UEFJA, to register the judgment of the San Juan district court. The trial court’s judgment is reversed, and the cause is remanded for further proceedings under the UEFJA.

REVERSED AND REMANDED.

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

      . In the original Spanish, “tienen plena juris-dicción para entender en reclamaciones civ-iles que surjan en terrenos federales localiza-dos en nuestra Isla.” 145 P.R. Dec. at 72.


author: PITTMAN, Judge.

text:
    Jeff DAVIS v. Bob RUSSELL, superintendent of Gadsden City Schools; and the Gadsden City Board of Education.
    2010179.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Certiorari Denied Jan. 24, 2003 Alabama Supreme Court 1020139.
    William J. Baxley, Joel E. Dillard, and Donald R. James, Jr., of Baxley, Dillard, Dauphin & McKnight, Birmingham; and James R. Berry of Berry & Associates, Albertville, for appellant.
    R. Kent Henslee, Christie D. Knowles, and Joshua B. Sullivan of Henslee, Robertson, Strawn & Knowles, L.L.C., Gadsden, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

The court’s opinion of June 28, 2002, is withdrawn and the following opinion is substituted therefor.

Jeff Davis appeals the trial court’s judgment declaring that Bob Russell, the superintendent of the Gadsden City school system, and the Gadsden City Board of Education (“the Board”) properly terminated Davis’s coaching duties and withheld his coaching supplement.

The Board hired Davis in 1992 as a teacher and a coach at Emma Samson High School. The fact that he was hired as “teacher/coach,” and not for a specific coaching position, is reflected in the minutes of a Board meeting held on June 19, 1992. Davis later signed separate annual contracts which supplemented his teacher’s pay by $2,984 per year for his activities as a head baseball coach and by $8,873 per year for his duties as an assistant football coach. On or about June 13, 2000, the principal of Emma Samson High School sent Davis a notice that his duties as head baseball coach were being terminated.

The principal sent Davis the notice of the change in his coaching duties after the last day of the 1999-2000 school year. On June 26, 2000, Davis notified the principal and the Board that he was filing a grievance in accordance with the Board’s policy, contesting the termination of his head-coaching duties. During July and August 2000, Davis and the principal negotiated to determine exactly which coaching duties Davis would be assigned for the 2000-2001 school year. The parties could not reach an agreement.

Davis requested a hearing before the Board. The hearing was held on August 8, 2000, and Davis was represented at the hearing by the Alabama Education Association. Following the hearing, the Board denied Davis’s grievance. On August 9, 2000, the Board sent Davis a letter stating it had decided that although notice that Davis’s coaching duties were being altered was given after the last day of the 1999-2000 school year, because his supplemental pay was not to be reduced as a result of the change in coaching duties, his rights had not been violated. The Board further concluded that because Davis refused to perform other coaching duties, he had effectively resigned from his coaching position and would not be paid the coaching supplement during the 2000-2001 school year.

Davis filed a declaratory-judgment action on October 25, 2000, against Russell and the Board, seeking a declaration that because the Board had failed to notify him in writing of the changes in his coaching duties, pursuant to § 16-24-12, Ala.Code 1975, the Board could not withhold his coaching supplement during the 2000-2001 school year. Russell and the Board filed an answer and a counterclaim on November 21, 2000. The trial court held a hearing on September 17, 2001, at which it heard ore tenus evidence. The trial court requested supplemental briefs, and each party filed one. In his supplemental brief, Davis argues that § 16-11-17 and two supreme court decisions, Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941), and Vodantis v. Birmingham Bd. of Educ., 373 So.2d 320 (Ala.1979), apply to this case. Davis attached as an exhibit to his supplemental brief a copy of the contracts he had signed each year to receive supplemental income for coaching baseball and football. The trial court issued an order in favor of Russell and the Board on October 11, 2001. Davis filed a motion to reconsider on November 9, 2001; the trial court denied the motion on November 21, 2001, and Davis filed a notice of appeal the same day.

“ ‘Under the “ore tenus rule,” a presumption of correctness accompanies the trial court’s judgment when it has made findings of fact based on disputed oral testimony without a jury.... This presumption [is] coupled with the wide discretion vested in the trial judge in declaratory judgment actions.’ ” Concerned Citizens of Fairfield v. City of Fairfield, 718 So.2d 1140, 1141 (Ala.Civ.App.1998), quoting Alabama Highway Dep’t v. Stuckey’s/DQ of Grand Bay, 613 So.2d 333, 335 (Ala.1993). However, the ore tenus rule does not apply in cases where the facts are not in dispute; in such cases our review is de novo. See Alfa Mut. Ins. Co. v. Small, 829 So.2d 743 (Ala.2002), citing Cincinnati Ins. Co. v. Nelson, 668 So.2d 539 (Ala.1995).

Most of the relevant facts are undisputed. The trial court was asked to construe § 16-24-12 as it applied to Davis and his position in the Gadsden City school system. The Board asserts that Davis was not hired solely as the head baseball coach of Emma Samson High School; it argues that he was hired primarily as a teacher and, secondarily, as a coach, and that his coaching duties were to be determined annually by the principal of the school. Russell and the Board also argue that unless an individual is hired for a specific position, such as head football coach, nothing in the Board’s policies or regulations requires them to notify the individual of a reassignment of duties. Furthermore, they argue that they did nothing in contravention of § 16-24-12 by allowing the principal to reassign Davis’s coaching duties. In his complaint and at trial, Davis argued that he did not receive proper notice, pursuant to the statute, that his coaching duties were being altered.

On appeal Davis couches his arguments in breach-of-contract language. First, he argues that the principal could not terminate his employment as head baseball coach, and this attempt to do so violated § 16-11-17, Ala.Code 1975, which vests all hiring and firing decisions in the Board. Davis next contends that the Board could not correct the problem by holding a grievance hearing and denying Davis relief, because Russell never made a recommendation to the Board that Davis be dismissed. Finally Davis asserts that the new duties offered by the principal, and ultimately the Board, were demeaning, and that the assignment of those new duties violated the terms of his contract.

The first two arguments Davis raises on appeal assert that § 16-11-17 and two supreme court decisions, Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941), and Vodantis v. Birmingham Board of Education, 373 So.2d 320 (Ala.1979), apply to this case. While it is true that boards of education are vested with the authority to hire and fire their employees under § 16-11-17, Davis was not fired. His services as head baseball coach were no longer needed, and he was reassigned to different coaching duties. The two supreme court cases cited by Davis interpret the statutes regulating the manner in which a board of education must proceed to properly terminate an employee. Davis remained a tenured teacher on the Board’s payroll; therefore, the statute and the cases he cites on appeal are inapplicable to the facts presented in this case.

The final argument Davis raises relates to the application of § 16-24-12 to his situation. The well-settled law is that a tenured teacher’s position as a coach is not entitled to the protection of Alabama’s Teacher Tenure Act (codified at § 16-24-1 et seq.). Bryan v. Alabama State Tenure Comm’n, 472 So.2d 1052, 1055 (Ala.Civ.App.1985). See also Campbell v. Talladega City Bd. of Educ., 628 So.2d 842 (Ala.Civ.App.1993). Furthermore, the termination of a tenured teacher’s coaching duties does not “constitute a transfer or demotion” within the meaning of the Act. Bryan, 472 So.2d at 1054. A state attorney general’s opinion requested by the Tarrant City Board of Education and addressing the notice issue is directly on point. (Op. Att’y Gen. No. 2000-176 (June 20, 2000).)

“While an opinion of the attorney general is not binding, it can constitute persuasive authority.” Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344, 1346 (Ala.1997). The attorney general opinion answers the question whether a school may change, modify, or terminate a coach’s responsibilities after the last day of the school year. The opinion recognizes that § 16-24-12 requires a board to notify its teachers, whether or not tenured, on or before the last day of the school year if it does not intend to reemploy them for the following school year at the same salary. (Op. Att’y Gen. No. 2000-176, p. 2.) The opinion interprets our decision in Campbell v. Talladega City Board of Education, 628 So.2d 842 (Ala.Civ.App.1993), to require notice by the last day of the school year if the nonrenewal or modification of coaching duties will result in a salary reduction. (Op. Att’y Gen. No. 2000-176, p. 3.) The opinion then concludes that if a teacher’s salary is not affected by the discontinuation or change of coaching duties, no notice under § 16-24-12 is required. Id. We find this analysis to be persuasive.

The trial court specifically found that Davis’s coaching duties were altered after the last day of the 1999-2000 school year. The trial court then found that Davis was notified by the principal of the change. It also determined that Russell and the Board informed Davis of the validity of the change in coaching duties. The trial court also expressly found that the Board initially had no intention of reducing or eliminating Davis’s supplemental pay, but that Davis refused to perform any coaching duties other than those of head baseball coach. Finally, the trial court found that the alternative coaching duties assigned to Davis were not demeaning; in fact, it found that other coaches in the school system perform similar duties as part of their supplemental coaching responsibilities.

Because the notice relieving Davis of his duties as head baseball coach was mailed after the end of the 1999-2000 school year, Davis could not be terminated as an employee; but under existing school policy, Davis could be reassigned and his coaching duties changed. In fact, Davis was assigned other coaching duties, his teaching position was not changed, and his coaching supplement was not reduced or terminated until he refused to accept any other coaching assignment at the school.

Based upon the previous discussion of the law as applied to these facts, we find no error on the part of the trial court in entering a declaratory judgment for Russell and the Board.

OPINION OF JUNE 28, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

YATES, P.J., and CRAWLEY, J„ concur.

THOMPSON, J., concurs in the result.


text:
    GARY POWERS DEVELOPMENT, INC. v. STATE HOME BUILDERS LICENSURE BOARD.
    2010598.
    Court of Civil Appeals of Alabama.
    Oct. 4, 2002.
    Certiorari Denied Jan. 24, 2003 Alabama Supreme Court 1020182.
    Joseph M. Matranga, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Kathy Perry Brasfield, asst. atty. gen., and Jamie Ayers Durham, deputy atty. gen., Home Builders Licensure Board, for ap-pellee.
   CRAWLEY, Judge.

Gary Powers Development, Inc. (“GPD”), whose designated qualifying representative is Gary Powers, is licensed by the State Home Builders Licensure Board as a residential home builder. GPD contracted to build an addition to the home of Cliff Yetter and Ellen Yetter. The Yet-ters were dissatisfied with the work GPD performed and filed a complaint against it with the Board. The Board investigated the allegations and charged GPD with incompetence in the practice of residential home building in violation of Ala.Code 1975, § 34-14A-8. After an administrative hearing, the Board revoked GPD’s license and fined it $1,000.

GPD filed a petition for judicial review of the Board’s order in the Baldwin Circuit Court. See Ala.Code 1975, § 41-22-20(b). Before the trial court’s consideration of the merits of its appeal, GPD filed a document entitled “Motion of Petitioner Gary Powers Development, Inc., et al., to submit New Evidence Which Was Heretofore Unavailable.” Attached to this motion was a document entitled “Motion of Cliff Yetter and Ellen Yetter to Withdraw Complaint”; that document indicated that the Yetters and GPD had settled a civil lawsuit filed by the Yetters that had alleged GPD was incompetent and that the Yetters now desired to withdraw their complaint with the Board. On January 22, 2001, the trial court dismissed GPD’s appeal, stating as grounds that it was moot.

The Board corresponded with GPD, requesting that it voluntarily surrender its license as required by the administrative order of the Board; GPD refused. In May 2001, GPD filed in the trial court a petition for temporary restraining order (“TRO”) against the Board to prevent it from notifying local building authorities that GPD’s license had been revoked. The trial court granted the TRO. The Board filed a motion to dissolve the TRO; at the hearing on that motion, the trial court reinstated GPD’s appeal.

The Board, on July 10, 2001, filed a petition for writ of mandamus in this court, arguing that the trial court lacked jurisdiction to reinstate the appeal it had previously dismissed. This court agreed and granted the petition, ordering the trial court to dismiss the reinstated appeal. The trial court issued the required judgment dismissing GPD’s appeal on October 15, 2001.

After the trial court issued its judgment, the Board once again asked GPD to surrender its license; it again refused, indicating that it believed that the dismissal of the appeal did not reinstate the Board’s administrative order revoking its license. On December 10, 2001, the Board filed a motion with the trial court entitled “Motion to Clarify, or, in the alternative, Motion for Sanctions.” That motion informed the trial court that GPD had not complied with the October 15 judgment, explained that the Board suspected that GPD misunderstood the import of that judgment, and requested that, if GPD did not misunderstand the import of the October 15 judgment and was willfully refusing to comply, that it be sanctioned. The trial court, after a hearing, entered an order on January 8, 2002, stating, “[pjursuant to the ruling of the Alabama Court of Civil Appeals, [GPD] is hereby ordered to surrender [its] contractor’s license.” From that order, GPD appeals.

The Board argues that GPD’s appeal, which was filed on February 7, 2002, is untimely. It argues that the October 15, 2001, dismissal was the final judgment in this case. According to the Board, neither party filed a postjudgment motion tolling the 42-day appeal period, and the time for filing an appeal expired on November 26, 2001. The Board also argues that its December 10 motion was not postjudgment motion contemplated by Rule 4(a)(3), Ala. R.App. P., or, if it was, it was untimely and did not serve to toll the time for appeal.

GPD argues that the trial court had never reinstated the Board’s order and that it never intended to do so until it entered the January 8, 2002, order modifying the Board’s order by requiring only that GPD surrender its license and omitting the requirement that GPD pay the $1,000 fine. Thus, GPD says, its appeal from that January 8, 2002, order is timely. GPD is operating under the assumption that the trial court’s original dismissal of its appeal as moot somehow erased the Board’s order revoking GPD’s license. However, GPD misunderstands the import of the dismissal of its appeal.

GPD had the right to appeal the Board’s decision to revoke its license by filing a petition for review in the trial court pursuant to Ala.Code 1975, § 41-22-20(a) and (b). See Ala.Code 1975, § 34-14A-8 (providing a right of appeal from the Board’s orders). The trial court could have affirmed, reversed, or modified the Board’s order, or the court could have remanded the case for the taking of additional testimony. Ala.Code 1975, § 41-22-20(k). However, the trial court was not permitted to reweigh the evidence before the Board; instead, its review was limited to determining whether the Board’s order was:

“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Ala.Code 1975, § 41-22-20(k). The trial court’s review of an appeal from an administrative order is generally limited to the administrative record. Ala.Code 1975, § 41 — 22—20(j); Covin v. Alabama Bd. of Examiners in Counseling, 712 So.2d 1103, 1106 (Ala.Civ.App.1998).

GPD submitted additional “evidence” to the trial court — the Yetters’ joint affidavit in which they state that they wish to withdraw their complaint against GPD and that they do not want its license revoked. The trial court, apparently concluding, as GPD has, that the withdrawal of the Yet-ters’ complaint resolved the entire matter and left no case or controversy to be appealed, originally dismissed GPD’s appeal on the basis that it was moot. That dismissal, however, did not affect the Board’s order revoking GPD’s license.

The Yetters’ complaint instigated the Board’s investigation into GPD and ultimately led to the Board’s decision to revoke GPD’s license. However, the Board, like other regulatory boards, has as its purpose “to provide for the licensure of those persons who engage in home building and private dwelling construction” because “[hjome builders may pose significant harm to the public when unqualified, incompetent, or dishonest home building contractors and remodelers provide inadequate, unsafe or inferior building services.” Ala.Code 1975, § 34-14A-1. The Legislature has stated that the Board was created to regulate the home-building industry, id., and, in light of other cases considering the purpose of regulatory boards, we conclude that the Board was created “ ‘ “to protect the public against incompetent” ’ ” home builders and to assure properly built homes that are “ ‘ “free from defects and dangers to the public.”’” See Thomas Learning Ctr., Inc. v. McGuirk, 766 So.2d 161, 169 (Ala.Civ.App.1998) (citing J & M Indus., Inc. v. Huguley Oil Co., 546 So.2d 367, 368 (Ala.1989), quoting in turn Cooper v. Johnston, 283 Ala. 565, 567, 219 So.2d 392, 394 (1969)). The Yetters’ decision to withdraw their complaint did not impact the Board’s authority to determine whether the public interest required the revocation of GPD’s license. Sailer v. Wisconsin Real Estate Brokers’ Bd., 5 Wis.2d 344, 92 N.W.2d 841, 845 (1958) (“Once disciplinary proceedings have been invoked against a broker upon complaint, such as in the instant case, it is for the board and not the complainant to determine whether protection of the public requires the exaction of a license suspension or revocation.”).

The dismissal of an appeal ordinarily leaves the appellant “in the same position as if no appeal had been taken.” FDIC v. Equitable Life Assurance Soc’y of the United States, 289 Ala. 192, 196, 266 So.2d 752, 754 (1972); Wilson v. Wilson, 53 Ala.App. 194, 198, 298 So.2d 616, 619 (1973); see also Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 800 (1947) (quoting Lewis on Eminent Domain, 3d ed., § 793, p. 1409) (stating that “ ‘[t]he effect of an appeal where there is a trial de novo in the appellate court is to vacate the decision appealed from until the appeal is disposed of. But if the appeal is dismissed, the decision appealed from is restored to full force and effect’ ”). The dismissal of GPD’s appeal left it in the same position as if it had never appealed the Board’s order. The Board’s order revoking GPD’s license and imposing the $1,000 fíne remained in effect as of the date the trial court dismissed GPD’s appeal in January 2001.

Because the Board’s order was effective on October 15, 2001, the date of the dismissal of GPD’s appeal to the circuit court, the trial court’s January 8, 2002, order requiring GPD to surrender its license, was not, as GPD argues, the first time the trial court had “reinstated” a portion of the Board’s order. In fact, the October 15 judgment of the trial court in compliance with this court’s writ of mandamus was the final judgment from which GPD was required to appeal within 42 days, provided no postjudgment motion was filed. See Rule 4(a)(1) & (a)(3), Ala. R.App. P.

We agree with the Board that its December 10 motion was not a post-judgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P., and, therefore, that it did not serve to toll the time for appeal. See Rule 4(a)(3) (providing that “[t]he filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal”). A Rule 59(e) motion requests the trial court to change or modify its judgment. The Board’s motion requested only that the trial court clarify the judgment so that GPD would comply or, in the event GPD understood the judgment, impose sanctions for its willful noncompliance. See Gold Kist, Inc. v. Crouch, 671 So.2d 695, 696 (Ala.Civ.App.1995). Thus, the Board’s motion, not being a Rule 59(e) motion, did not toll the time for appealing the October 15 judgment.

However, even if we were to determine that the Board’s motion was a post-judgment motion, the motion would still not have tolled the time for taking an appeal. The Board filed its motion on December 10, 2001, more than 30 days after the trial court dismissed GPD’s appeal. See Rule 59(b), Ala. R. Civ. P. An untimely postjudgment motion will not toll the time for taking an appeal. Lewis v. State, 463 So.2d 154, 156 (Ala.1985).

GPD’s appeal was filed more than 42 days after the entry of the trial court’s judgment dismissing its appeal. See Rule 4(a)(1), Ala. R.App. P. Accordingly, we must dismiss this appeal.

APPEAL DISMISSED.

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

      . Because the judgment was a dismissal, the only applicable postjudgment motion that would toll the time for taking an appeal would be a Rule 59(e) motion to alter, amend, or vacate the trial court’s judgment. See Rule 50(b) (governing postjudgment motions for a judgment as a matter of law), Rule 52(b) (governing motions to amend findings after judgment), and Rule 55(c) (governing motions to set aside a default judgment).


author: MURDOCK, Judge.

text:
    Tolsa R. TRAVIS-JOHNSON v. Keith Elliott JOHNSON.
    2010110.
    Court of Civil Appeals of Alabama.
    Oct. 11, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1020166.

      Roianne Houlton Conner, Montgomery, for appellant.
   MURDOCK, Judge.

On January 29, 1997, Tolsa R. Travis-Johnson (“the wife”) sued Keith Elliott Johnson (“the husband”) for a divorce in the Macon Circuit Court. That action was docketed as case no. DR-97-10. The wife was granted custody of the parties’ three children pending a final hearing.

Following a trial on March 30, 2000, in which evidence was received ore tenus, the trial court entered a final judgment of divorce on January 31, 2001, that continued custody of the three children in the wife, awarded the marital residence to the wife, and awarded each party certain personal property. That judgment also ordered the husband to pay child support beginning on the date of the judgment rather than at the time of the hearing or any earlier date; reserved the issue of periodic alimony; and divided the marital debts.

On February 21, 2001, the wife filed a timely postjudgment motion to alter, amend, or vacate the judgment, alleging that the trial court erred 1) by not ordering retroactive child support for the period between the date of trial — March 30, 2000 — and the date of the final judgment— January 31, 2001; 2) by not awarding the wife any alimony; and 3) by not equitably dividing the marital debts. Subsequently, on April 23, 2001, the husband filed a motion to alter, amend, or vacate the judgment, asking the trial court to reduce his child-support obligation because one of the children had recently reached the age of majority. The husband’s motion was untimely.

Although the wife’s timely postjudgment motion extended the time for the parties to take an appeal from the trial court’s January 31, 2001, final judgment, see Rule 4(a)(3), Ala. RApp. P., that postjudgment motion was denied by operation of law on May 22, 2001. See Rule 59.1, Ala. R. Civ. P. As a result, the deadline for filing a notice of appeal from the January 31, 2001, judgment was July 3, 2001.

On July 5, 2001, the wife filed a notice of appeal from the trial court’s January 31, 2001, final judgment. Because that appeal was untimely, this court dismissed it pursuant to Rule 4(a), Ala.R.App. P. See Travis-Johnson v. Johnson, (No. 2001012, Aug. 7, 2001) 841 So.2d 325 (Ala.Civ.App.2001) (table). The trial court’s January 31, 2001, final judgment therefore became res judicata as to the three issues (i.e., retroactive child support, alimony, and the division of the marital debts) enumerated above.

On June 22, 2001, the husband filed a petition for modification and for rule nisi seeking a reduction in the amount of his child-support obligation, again asserting that one of his children had recently reached the age of majority and that a second child was several months away from doing so. In this modification petition, the husband also requested a credit for having overpaid child support as a result of an income-withholding order and the wife’s “interception” of an income-tax refund. Finally, he also requested some relief relating to visitation. This modification petition was docketed as case no. DR-97-10.01.

In June 2001, the trial court set a hearing date to address what it referred to as “all pending motions.” After that hearing, the trial court entered an order on September 25, 2001; in that order the court adjusted the husband’s child-support obligation in recognition of the fact that one of the children had reached the age of majority and that another child was about to do so, reserved the question of whether or how much the husband may have overpaid in child support because of the aforementioned withholding order and tax-refund interception, and provided limited relief to the husband in regard to visitation. The September 25, 2001, judgment also purported to deny all other pending motions.

On October 30, 2001, the wife filed a notice of appeal from the trial court’s September 25, 2001, judgment. On appeal, the wife argues that the trial court erred by denying her postjudgment requests for 1) retroactive child support for the period from March 30, 2000, to January 31, 2001; 2) periodic alimony; and 3) a more equitable division of the marital debts. However, as previously discussed, the wife’s postjudgment motion raising these three issues was denied by operation of law on May 22, 2001. The trial court therefore had no continuing jurisdiction with respect to those issues and that portion of its September 25, 2001, judgment purporting to deny relief to the wife with respect to those issues was void. Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000); Robinson v. Robinson, 840 So.2d 180 (Ala.Civ.App.2002). A void judgment will not support an appeal. Kid’s Care, Inc. v. Alabama Dep’t of Human Resources, 843 So.2d 164 (Ala.2002); Carter v. Hilliard, 838 So.2d 1062 (Ala.Civ.App.2002). This appeal is therefore dismissed.

APPEAL DISMISSED.

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

      . The husband's untimely postjudgment motion did not extend the time for either party to file a notice of appeal. See Boykin v. International Paper Co., 777 So.2d 149 (Ala.Civ.App.2000).

      . The filing of a petition to modify a domestic-relations judgment is, for purposes of applying the rules of procedure, treated as the filing of a separate action. Ex parte Davidson, 782 So.2d 237, 240 (Ala.2000).