author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    Ex parte HORTON FAMILY HOUSING, INC., a Corporation, and Kim Temple. (In re Sabrina Burton and John Burton v. Horton Family Housing, Inc., a corporation, and Kim Temple).
    1021679.
    Supreme Court of Alabama.
    Nov. 21, 2003.

      H.E. Nix, Jr., and M. Todd Russell of Nix, Holtsford, Gilliland, Higgins & Hit-son, P.C., Montgomery, for petitioners.
    G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for respondents.
   HOUSTON, Justice.

Horton Family Housing, Inc., and Kim Temple, the defendants in an action pending in the Elmore Circuit Court, petition for a writ of mandamus directing that court 1) to vacate its order allowing discovery, 2) to issue a protective order preventing plaintiffs Sabrina Burton and John Burton from engaging in such discovery, and 3) to grant Horton’s motion to compel arbitration. We deny the petition.

I. Facts

In December 2001, the Burtons ordered a mánufactured home from Horton. Mrs. Burton appears to have handled all aspects of the transaction. The Burtons specially ordered linoleum for the bedroom floor and a large Palladian window. Horton processed special order homes such as the Burtons’ only after financing was approved through GreenPoint Credit, L.L.C., a financing company. On December 12, 2001, GreenPoint Credit informed Horton that it had approved the financing for the Bur-tons’ home, stating on the application Mrs. Burton had submitted: “all conditions have been met.” Kim Temple, an employee of Horton, then informed Mrs. Burton that her credit application had been approved.

Mrs. Burton signed three documents to complete the transaction: a buyer’s order form, an installment sales contract/security agreement, and a separate arbitration agreement. The separate arbitration agreement stated, in pertinent part:

“Buyer and Seller agree, covenant and consent that any and all controversies or claims arising out of or in any way relating to the sale of the said mobile home and the negotiations leading up to the sale, whether in the nature of covenant, warranty, misrepresentation, rescission, breach of contract, or other tort, shall be settled solely by binding arbitration in accordance with the provisions of the Federal Arbitration Act ....
“Buyer and Seller agree that [t]his agreement shall cover any and all disputes, claims or controversies between them, including but not limited to warranty claims[,] service or repair disputes, and all other claims arising out of or in any way related to the sale and service of the said mobile home.”

The installment sales contract/security agreement also contained an arbitration provision; that provision mostly reiterated the terms of the separate arbitration agreement. However, it contained the following language, which did not appear in the separate arbitration agreement: “Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s).”

When the manufactured home was complete, Horton delivered it to the Burtons’ property. However, Horton was unable to place the home on its designated site because the property had not been adequately prepared. After its unsuccessful attempt at delivery, Horton returned the home to its place of business.

At some point after delivery of the manufactured home was attempted, Green-Point Credit informed both parties that it could not confirm Mrs. Burton’s income and thus that it was withdrawing its approval of the loan.

The Burtons filed this action in the El-more Circuit Court claiming fraudulent misrepresentation, fraud by forgery, failure to disclose, conversion, negligence, wantonness, negligent delivery and removal, and wanton delivery and removal. Horton and Temple filed an answer and a motion to dismiss, or, alternatively, to compel arbitration. The Burtons immediately filed notice of their intent to serve a subpoena on GreenPoint Credit and noticed the taking of the deposition of Horton’s president, Trey Horton. At this point, Horton and Temple filed a motion for a protective order to halt discovery, which the trial court initially denied on June 25, 2003. Horton and Temple subsequently filed this petition for a writ of mandamus. On July 9, the day Horton and Temple filed this petition, the trial court issued a protective order “as to issues beyond the substance of the existence of the sales/financing agreement.”

II. Standard of Review

“Disputes regarding discovery matters are an appropriate basis for a petition for a writ of mandamus.” Ex parte Anderson, 789 So.2d 190, 194 (Ala.2000). However, the party seeking a writ of mandamus in a discovery dispute must properly move for a protective order under Rule 26(c), Ala. R. Civ. P. Ex parte Horton Homes, Inc., 774 So.2d 536, 539 (Ala.2000); see generally Ex parte Reynolds Metals Co., 710 So.2d 897 (Ala.1998). In this case, Horton and Temple timely filed their motion for a protective order 11 days after the Burtons filed their first notice relating to discovery.

“ ‘Mandamus is a drastic and extraor-' dinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)). The ultimate question in reviewing a petition for a writ of mandamus regarding a trial court’s ruling on a discovery matter is whether the trial court exceeded its discretion. Ex parte Horton Homes, Inc., 774 So.2d at 539.

III. Analysis

A trial court’s duty in ruling on a motion to compel arbitration is analogous to its duty in ruling on a motion for a summary judgment. Ex parte Green-street, Inc., 806 So.2d 1203, 1207 (Ala.2001). The party seeking to compel arbitration has the burden of producing evidence to establish a prima facie showing that an agreement to arbitrate exists in a “contract evidencing a transaction involving commerce.” 9 U.S.C. § 2; see also Ex parte Greenstreet, 806 So.2d at 1209. Once the moving party makes that showing, the burden of persuasion shifts to the nonmovant to present “substantial evidence” of some defense to arbitration. Ex parte Greenstreet, 806 So.2d at 1209. In a summary-judgment proceeding, the non-movant may be permitted to discover evidence in order to properly oppose the motion; in arbitration, however, “discovery is the exception and not the norm.” 806 So.2d at 1207.

Though rare in a proceeding on a motion to compel arbitration, discovery is allowed in certain circumstances. We have fashioned an exception where substantial evidence to defeat the motion may exist, but the opposing party is “unable or virtually unable to obtain the necessary evidence except through discovery.” Ex parte Greenstreet, 806 So.2d at 1208. The party opposing the motion must present a “factually based predicate” that establishes what the party knows, what it expects to discover, and why that information matters. 806 So.2d at 1209.

In the case before us, the Burtons allege that financing was a condition precedent to the formation of the entire contract between Horton and them. Consequently, they argue, GreenPoint Credit never approved the financing, the condition precedent was not met,- and the contract never came into existence. See Ex parte Cobb, 781 So.2d 208, 210-11 (Ala.2000)(approved financing was a condition precedent to the contract formation, and its nonoccurrence yielded no contract and thus no arbitration clause); Ex parte Payne, 741 So.2d 398, 403 (Ala.1999)(same). If no contract existed, no arbitration agreement existed.

Horton and Temple counter by arguing that GreenPoint Credit did,' approve the financing, that the condition precedent was fulfilled, and that the contract did come into existence. Horton says it did not complete delivery, of the home because it could not cross a culvert to place the manufactured home, not because financing was denied. - Horton and Temple argue that the contract was validly formed and that the arbitration provisions are enforceable. See Celtic Life Ins. Co. v. McLendon, 814 So.2d 222, 225-26 & n. 2 (Ala.2001) (distinguishing that case from Cobb and Payne because in Celtic Life the formation of the contract was not at issue).

This petition centers on whether “all conditions [were] met,” as the application for financing states. If so, the contract existed and the circuit court should have granted the motion to compel arbitration. But if the approval of the financing was “subject to [GreenPoint Credit’s] verification of the information provided,” as indicated at the bottom of the financing application, it is possible that the condition precedent was not met and that, therefore, the contract never came into existence.

Whether GreenPoint Credit extended financing to the Burtons is central to this dispute, and the Burtons are entitled to conduct limited discovery on matters related to the financing. On June 25, the trial judge denied Horton and Temple’s motion for a protective order, which would have placed some limit on discovery. In so deciding, the judge exceeded his discretion and, if the order had stood, would have committed reversible error. However, on July 9, the judge issued a protective order which we read as appropriately limiting the Burtons’ discovery to whether financing had been approved; if it had been approved, when; and if and when financing was later withdrawn. If the court permits discovery beyond those bounds, Horton and Temple are free to again petition this Court for mandamus relief. However, based on the above, we deny the petition as to this issue.

While at this stage it is not proper for this Court to rule on Horton and Temple’s motion to compel arbitration (as they request), we order the judge to set a hearing date for the motion to compel arbitration and, once the Burtons have engaged in the limited discovery allowed above, to rule on that motion. Thus we deny the petition as to this issue.

PETITION DENIED.

SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

JOHNSTONE, Justice

(concurring specially).

I concur in all material aspects of the main opinion. My only reservation is that 1 disagree with the implication of footnote 2 that a brief can constitute either pleadings (allegations) or proof. However, this detail of the main opinion makes no difference to either the rationale or the judgment.

      . However, the following boilerplate language appeared at the bottom of the application: "The stated terms of credit approval are subject to our verification of the information provided by you.”

      . The record, particularly a July 19 affidavit of Trey Horton, the president of Horton, simply alleges that "Sabrina Burton did not adequately prepare the property for the manufactured home to be moved across it to the home site.” This allegation is vague; however, the briefs more specifically allege that there was a culvert on the property that could not be traversed with the manufactured home.


source: Caselaw Access Project

author: HARWOOD, Justice.

license: Public Domain

text:
    Gayle PITTMAN v. UNITED TOLL SYSTEMS, LLC.
    1021188.
    Supreme Court of Alabama.
    Nov. 21, 2003.

      James G. Bodin and Aaron J. Luck of McPhillips, Shinbaum & Gill, L.L.P., Montgomery, for appellant.

      Dorothy A. Powell and Deborah Ann Wakefield of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   HARWOOD, Justice.

On April 11, 2002, Gayle Pittman sued United Toll Systems, LLC (“United Toll”), State Farm Mutual Automobile Insurance Company (“State Farm”), and certain fictitiously named defendants, seeking to recover damages for injuries she sustained in an automobile accident that occurred on the approach to a toll bridge operated by United Toll. The accident was caused by a chain reaction set in motion by icy conditions on the bridge. Pittman alleged negligence and wantonness against United Toll and alleged breach of contract as to both State Farm and United Toll. United Toll moved for a summary judgment on all pending claims against it on the sole basis of the defense of assumption of the risk. Pittman responded and the trial court, after hearing oral arguments on the motion, entered a summary judgment for United Toll on all claims without stating its rationale. Pittman filed a motion to alter, amend, or vacate the trial court’s judgment; the court denied that motion. Pittman appealed.

On appeal, Pittman argues that the trial court erred in entering a summary judgment for United Toll because, she says, in response to its summary-judgment motion she presented substantial evidence creating genuine issues of material fact (1) as to whether she had actual knowledge and appreciation of the danger of ice on the bridge and (2) as to whether she voluntarily proceeded onto the approach to the bridge with an understanding that there was ice on the bridge.

This Court’s review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala.R.Civ.P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993) [overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala.2003)]; Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

The accident occurred on one of the approaches to the Alabama River Parkway Toll Bridge, which is owned and operated by United Toll. The bridge, which crosses the Alabama River separating Elmore County and Montgomery County, is used frequently by motorists traveling between the two counties.

The record reveals the following facts. Pittman, a resident of Elmore County, commonly used this route to travel to and from her job in Montgomery. On December 21, 2000, the day the accident occurred, the weather was cold and there was precipitation in the form of a wintry mix of rain and ice. Although Pittman’s employer told her the day before that her employer could pick her up that morning because of the wintry conditions, Pittman decided to drive herself to work. Pittman left her home early that morning because of the wintry conditions. While she was on the way to work, Pittman heard over the radio that there were a number of accidents on Interstate 65, the other route she could use, and that traffic was being directed to the bridge. In her deposition, Pittman testified that, operating with the. general knowledge that “ice usually freezes on bridges first,” and in order to avoid crossing multiple bridges on Interstate 65, she decided to take the toll bridge. Because of the wintry weather and the possibility of ice on the road, Pittman drove more slowly than usual and kept a lookout for other vehicles. At approximately 7:00 a.m., Pittman arrived at the north end of the bridge in her vehicle traveling south toward Montgomery. Pittman stopped at the tollbooth, paid the toll, and exited the tollbooth plaza. The bridge is constructed so that the five lanes emerging from the five tollbooths merge into a two-lane road. It is this two-lane road that constitutes the actual bridge. Before reaching the point where the five lanes merge into two, Pittman saw a black truck in the lane immediately to her right. Pittman slowed and allowed the truck to merge in front of her. The truck did not make any erratic movements as it continued toward the bridge, but once it was on the actual bridge, Pittman saw it beginning to slide into the opposing, northbound lane. Pittman stopped her vehicle in an area between the tollbooth plaza and the bridge to avoid the same fate. When she had been -stopped for only a few seconds, Pittman saw a vehicle, driven by Johnetta Johnson, cross the bridge in the northbound lane and swerve to avoid the black truck. Johnson lost control of the vehicle, and it slid across the northbound lanes, crashing into Pittman’s stationary vehicle, causing Pittman’s air bag to inflate. Pittman alleges that, not immediately, but as a result of the accident, she suffered injuries to her arm >and spine.

I. ’ Actual Knowledge

United Toll, in its motion for a summary judgment and in its brief in support of its motion, asserted as its basis for a summary judgment only that by attempting to cross the bridge in the wintry conditions Pittman had assumed the risk of injury. Consistent with that position, United Toll never argued to the trial judge that the pleadings and the evidence did not establish a breach of some duty owed by it.

“A summary judgment is appropriate when there is no genuine issue of material.fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Vines v. Beloit Corp., 631 So.2d 1003, 1004 (Ala.1994). A defendant relying on the affirmative defense of assumption of the risk bears the burden of presenting substantial evidence indicating that the plaintiff assumed the risk that gave rise to the injury. Superskate, Inc. v. Nolen, 641 So.2d 231, 237 (Ala.1994).”

Ex parte Barran, 730 So.2d 203, 205 (Ala.1998).

This Court has stated:

“The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger. Gulf Shores Marine Indus., Inc. v. Eastburn, 719 So.2d 238, 240 (Ala.Civ.App.1998). Assumption of the risk is described as ‘a form of contributory negligence applicable to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with appreciation of a known risk.’ Cooper v. Bishop Freeman Co., 495 So.2d 559, 563 (Ala.1986), overruled on other grounds, Burlington Northern R.R. v. Whitt, 575 So.2d 1011 (Ala.1990).”

Ex parte Potmesil, 785 So.2d 340, 343 (Ala.2000). Questions of assumption of the risk are usually within the province of the jury, but if there is no genuine issue of material fact, that is, if reasonable persons must draw the same conclusion from the facts presented, then whether the plaintiff has assumed the risk becomes a question of law for the court. See Sears v. Waste Processing Equip., Inc., 695 So.2d 51, 53 (Ala.Civ.App.1997). Otherwise stated, a summary judgment is improper if Pittman has presented any admissible evidence from which the trier of fact could conclude that she did not assume the risk of her injury.

United Toll argues that Pittman knew and appreciated the risks involved with using the bridge on December 21, 2000, citing seven factors it says prove that Pittman assumed the risk, as a matter of law:

“Prior to the accident, [Pittman] was aware of the following: (1) it was icy and cold, (2) the forecast was for winter weather, (3) she had observed the icy weather, (4) she knew to be cautious, to maintain a reasonable speed and to maintain a reasonable distance from other vehicles due to the ice; (5) she was aware that other drivers may not be operating their vehicles properly, (6) she was aware that bridges can freeze and be icy, (7) was aware she did not have to drive to work that day, could have contacted her employer to come pick her up, and could have taken a different route to get to work.”

(United Toll’s brief, 10-11.) This Court has explained that “[ajssumption of the risk proceeds from the injured person’s actual awareness of the risk.” McIsaac v. Monte Carlo Club, Inc., 587 So.2d 320, 324 (Ala.1991)(emphasis added). Further, “[i]n determining whether assumption of the risk has been proven, the fact-finder looks to the plaintiffs state of mind, using a subjective standard — -asking whether the plaintiff knew of the risk, not whether he should have known of it. McKerley v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc., 686 So.2d 1194, 1197 (Ala.Civ. App.1996).” Ex parte Potmesil, 785 So.2d at 343 (emphasis added).

The first two factors cited by United Toll do not even address the conditions on the bridge at the time of the accident. General knowledge of weather conditions is unconvincing as indicating an actual awareness of the condition of a particular bridge. The third factor — that Pittman “observed” icy weather — does not support an inference that Pittman actually observed the icy weather on the bridge when she was approaching it. Indeed, according to Pittman’s deposition testimony, that was not the case:

“Q [Counsel for United Toll]: As you headed out from your home, were any of the roads that you traveled on before you got to the toll bridge icy or slick in any way?
“A [Pittman]: No. Just wet.
“Q: All right. Any incidents where you felt your car was sliding or anything like that?
“A: No.
“Q: When you approached the tollbooth, did [the tollbooth attendant] say anything to you and did you say anything to him?
“A: No.
“Q: Did [the tollbooth attendant] say anything to you about the weather conditions?
“A: No.
“Q: ... — up to this position, are you slipping and sliding in any way?
“A: Not at that point, no.
“Q: Do you see any ice or patches of ice?
“A: None right there, no.
“Q: Did you see any ice or any conditions that caused you concern over here in this plaza area, that being from where you left the tollbooth before you got on the bridge?
“A: No.
“Q: So no problem driving as you get to this spot?
“A: Right.
“Q: ... Could you physically, you being where you are in your position, see any ice on the bridge?
“A: Huh-uh (Negative response).
“Q: In other words, when you’re here and this truck is sliding — and I know you are putting two and two together going it’s icy. It’s a bridge. The bridge is probably icy. That’s probably what he’s going on. But my question is, when you’re sitting here as he’s sliding, can you see any ice on the bridge?
“A: No.
“Q: Did you see any patches anywhere?
“A: No.”

The fourth, fifth, sixth, and seventh factors cited by United Toll as evidence that Pittman had assumed the risk are very general and suggest that Pittman should have known the bridge could be icy, but do not address her actual knowledge. According to the record before us, no evidence was presented to indicate Pittman’s “actual awareness” that there was ice on the bridge before the driver of the truck lost control of it. Therefore, there exist genuine issues of material fact to be resolved by the fact-finder.

II. Voluntary Consent

Pittman also argues that United Toll did not establish the second prong of assumption of the risk, thus making the summary judgment improper. Pittman contends that she did not voluntarily consent to bear the risk posed by that danger, ie., ice on the bridge. United Toll argues Pittman did voluntarily consent because she, on her own volition, attempted to get to her place of work by using the bridge. However, its argument misses the point. The question is — did Pittman voluntarily proceed toward the bridge with knowledge that there was ice on the bridge and with knowledge of the danger posed by the ice. In McIsaac, 587 So.2d at 324, this Court stated:

“The assumption of the risk defense is not based on the plaintiffs fault or negligent conduct. See Kelton v. Gulf States Steel, Inc., 575 So.2d 1054, 1055 (Ala.1991); Kemp v. Jackson, 274 Ala. 29, 145 So.2d 187 (1962). The plaintiff must know that a risk is present and must understand its nature. See Kelton, 575 So.2d at 1055; Employers Casualty Co. v. Hagendorfer, 393 So.2d 999 (Ala.1981). His choice to incur the risk must be free and voluntary. See Kelton, 575 So.2d at 1055; Kemp, 274 Ala. 29, 145 So.2d 187, 194-95.”

After leaving the tollbooth plaza, Pittman saw the black truck hit a patch of ice and slide. Upon seeing that, Pittman stopped her vehicle before she actually reached the bridge. It was while Pittman was stopped that the chain- of events leading to the accident transpired. In order to avoid hitting the black truck, Johnson swerved her car, hit a patch of ice, and then hit Pittman’s vehicle while Pittman was still stationary. Pittman never guided her car into harm’s way. Pittman never personally encountered any ice on the bridge, nor did she ever drive onto the bridge. Included in Pittman’s deposition i's the following testimony:

“Q [Counsel for United Toll]: And you stayed exclusively in this one- position here [off the bridge]?
“A [Pittman]: Absolutely.
“Q: And why do you stay here?
“A: Because I saw [the black truck] — I was creeping along, and when I saw [the black truck] hit the ice and started sliding, I completely stopped.
“Q: All right. How long a period of time would you say it was from the,time [Johnson] started into the skid until the time that she hit you?
“A: I have no idea. Seconds. It all happened so fast.”

As indicated by- the record, Pittman never entered the zone of danger once she saw the black truck start sliding. Pittman was not the catalyst for the chain of events resulting in the collision, nor did she position herself as to be affected by that chain. Based on our review of the record, we conclude that Pittman did not voluntarily proceed with knowledge of the danger posed by ice on the bridge. As a result, the second prong of assumption of the risk has not been satisfied.

As to whether the summary judgment was proper as to the breach-of-contract claim, this Court has stated:

“[I]t has long been the law in Alabama that failure to argue an issue in 'brief to an appellate court is tantamount to the waiver of that issue on appeal. An- appellate court will consider only those issues properly delineated as such and will not search out errors which have not been properly preserved or assigned. Humane Society of Marshall County v. Adams, 439 So.2d 150 (Ala.1983); Boshell v. Keith, 418 So.2d 89 (Ala.1982); McNeill v. McNeill, 332 So.2d 387 (Ala.Civ.App.1976); Melton v. Jackson, 284 Ala. 253, 224 So.2d 611 (1969); Pappas v. Alabama Power Company, 270 Ala. 472, 119 So.2d 899 (1960); Schneider v. Southern Cotton Oil Co., 204 Ala. 614, 87 So. 97 (1920).”

Ex parte Riley, 464 So.2d 92, 94 (Ala.1985). Pittman does not contend before this Court that the summary judgment on the breach-of-contract claim is in error. Accordingly, the issue of the appropriateness of the summary judgment on the breach-of-contract claim is deemed waived, and that issue is not before this Court.

For the foregoing ■ reasons, the trial court’s summary judgment in favor of United Toll. on Pittman’s negligence and wantonness claims is due to be reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

SEE, J., dissents.

      . Pittman and State Farm reached a settlement, and State Farm was dismissed from the case on October 30, 2002.


author: PER CURIAM. HOUSTON, Justice

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Hugh HARRIS III.
    1020609.
    Supreme Court of Alabama.
    Nov. 26, 2003.
    Mark R. Ulmer of Ulmer, Hillman & Ballard, P.C., Mobile, for appellant.
    George R. Irvine III, Shawn T. Alves, and R. Scott Lewis of Stone, Granade & Crosby, P.C., Bay Minette, for appellee.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals from the denial of its postjudgment motion styled as a “Motion for Reduction in Judgment Amount.” The specific question presented in State Farm’s motion was whether Hugh (“Bo”) Harris III, a minor, was entitled to “stack” the uninsured-motorist-coverage benefits available under five automobile insurance policies issued to Bo’s father, Hugh Harris, Jr., by State Farm. State Farm argued in the motion that Bo Harris did not fall within the definition of “relative” contained in the State Farm policies and, thus, that Bo Harris was not an insured under those policies and the uninsured-motorist coverage could not be stacked.

The trial court held that Bo Harris was entitled to stack those coverages, and it refused to reduce, as State Farm requested, the judgment entered on the jury’s verdict. We reverse and remand.

Facts

On September 24, 1999, Bo Harris was driving a Chevrolet S-10 truck owned by his father. Bo’s father had given Bo permission to operate the truck. On that same date, Fate Foley III was operating an automobile owned by his wife, Lana Foley. Foley failed to stop at a stop sign, and the automobile he was driving collided with the truck being driven by Bo Harris.

It is undisputed that Foley’s negligence and/or wantonness caused the accident, and that, as a result of the accident, Bo Harris suffered serious injuries. It is also undisputed that Fate Foley and Lana Foley were uninsured motorists, as that term is defined by Alabama law.

At the time of the accident, State Farm insured Hugh Harris’s Chevrolet S-10 truck under policy number D26 9897-F09-01. That policy was in effect on the date of the accident. In separate policies, State Farm also insured four other vehicles owned by Hugh Harris; those policies were also in effect on the date of the accident.

Each of the insurance policies issued by State Farm to Hugh Harris contained the following pertinent provisions relating to uninsured-motorist coverage:

“We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by an accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
“Who Is an Insured
“Insured — means the person or persons covered by uninsured motor vehicle coverage.
“This is:
“1. The first person named in the declarations;
“2. his or her spouse;
“3. their relatives;
“4. any other person while occupying:
“a. your car, a temporary substitute car, a newly acquired car or a trailer attached to such car. Such vehicle has to be used within the scope of the consent of you or your spouse; or
“b. a car not owned by you, your spouse or any relative, or a trailer attached to such a car. It has to be driven by the first person named in the declarations or that person’s spouse and within the owner’s consent.
“Such other person occupying a vehicle used to carry persons for a charge is not an insured.
“5. any person entitled to recover damages because of bodily injury to an insured under 1 through 4 above.”

(Emphasis omitted.) In the policies issued to Hugh Harris, “relative” was originally defined to mean “a person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.” (Emphasis added; boldface type omitted.) In a later endorsement, State Farm amended the definition of “relative” to read: “a person related to you or your spouse by blood, marriage or adoption who lives primarily with you. It includes your unmarried and unemanci-pated child away at school.” (Emphasis added; boldface type omitted.)

Donna Robinson, as mother and next friend of Bo Harris, sued Fate Foley and Lana Foley. Robinson alleged that Fate Foley had negligently or wantonly operated the vehicle he was driving. Robinson also alleged that Lana Foley had negligently or wantonly entrusted her vehicle to Fate Foley. Robinson sought to recover compensation for Bo Harris’s medical expenses, his permanent injuries, and his pain and suffering. She also sought punitive damages.

State Farm filed a motion to intervene in the case. The trial court granted the motion, and State Farm answered Robinson’s complaint. State Farm deposited with the clerk of the circuit court the sum of $25,000, which State Farm alleged was the maximum Bo Harris was entitled to recover under the uninsured-motorist coverage available under Hugh Harris’s policy with State Farm insuring the Chevrolet S-10 truck. This amount represented the limits of the uninsured-motorist coverage provided under State Farm automobile policy D26 9897-F09-01, the policy issued on the Chevrolet S-10 pickup truck being operated by Bo Harris at the time of the accident.

State Farm subsequently sought a partial summary judgment, relying on Bo Harris’s deposition testimony in which he stated that he lived primarily with his mother. State Farm argued that because Bo Harris did not live primarily with his father, he did not meet the definition of “relative” contained in the insurance policies issued to Hugh Harris. State Farm argued that because Bo Harris did not fall within any definition of “insured,” he was not entitled to stack the uninsured-motorist coverage available under the insurance policies issued by State Farm on Hugh Harris’s four other vehicles. Robinson opposed this motion and filed her own motion for a partial summary judgment, arguing, on various grounds, that Bo Harris was entitled to stack the coverage available under those policies.

The trial court subsequently denied State Farm’s motion for a partial summary judgment and granted Robinson’s motion for partial summary judgment, holding that Bo Harris was entitled to stack the uninsured-motorist coverage available under his father’s five State Farm insurance policies.

On November 6, 2000, Robinson’s claims alleging negligence and wantonness as to Fate Foley were tried before a jury. The jury returned ■ a verdict in favor of Bo Harris in the amount of $121,800 in compensatory damages and $7,000 in punitive damages. On November 7, 2002, the trial court entered a judgment on that verdict.

On November 15, 2002, State Farm filed its postjudgment motion styled as a “Motion for Reduction in Judgment Amount.” In that motion, State Farm again argued that, because Bo Harris did not live primarily with Hugh Harris, he could not meet the definition of an “insured.” State Farm argued that Bo Harris was therefore entitled to recover uninsured-motorist benefits under only the insurance policy applicable to Hugh Harris’s Chevrolet S-10 truck and that he was not entitled to stack the uninsured-motorist coverage available under the four other State Farm policies issued to Hugh Harris. For these reasons, State Farm requested that the trial court reduce the judgment to $25,000. The trial court denied the motion. State Farm appealed.

Standard of Review

The only issue presented in this appeal is whether the minor plaintiff, Bo Harris, meets the definition of “relative” in the State Farm policy; in order to decide that issue we must construe the meaning of that term. The interpretation of an insurance contract presents a question of law. See Holt v. State Farm Mut. Auto. Ins. Co., 507 So.2d 388 (Ala.1986). We review de novo a trial court’s conclusions of law. Reynolds Metals Co. v. Hill, 825 So.2d 100, 106 (Ala.2002).

Analysis

Each of the policies contains the same definition of a “relative,” i.e., “a person related to you or your spouse by blood, marriage or adoption who lives primarily with you....” (Emphasis added; boldface type omitted.) State Farm contends that Bo Harris was not “liv[ing] primarily” with his father at the time of the accident. The record reflects that Bo Harris’s father and mother were divorced and that they had joint custody of Bo. His father lived in Stapleton and his mother lived in Daphne. In deposition testimony included in the record, Bo Harris testified that he was living with his mother at the time of the accident. He described his living arrangements as follows:

“Q. Now, how long had you been living with your mom prior to the accident?
“A. They had joint custody. I lived with my mom two weeks and lived with my dad two weeks supposedly, but I stayed with my mom more that I did my dad.
“Q. Okay. With the divorce decree saying joint custody, that means both parents have equal right to have you stay with them basically, so I guess the initial agreement was two weeks with your mom and then moved over to your dad’s for two weeks.
“A. Yes, sir.
“Q. If I understand you are telling me basically that’s not the way it was really working out at the time?
“A. Right.
“Q. During the course of any given month to 30 days, how many days during the month were you living with your mom versus your dad at the time this accident took place and immediately pri- or?
“A. I probably stayed with my dad seven or eight days out of the month.
“Q. Would this be on weekends or how would that work out of the month?
“A. I probably stayed with my dad seven or eight days out of the month.
“Q. Would this be on weekends or how would that work out schedule-wise?
“A. It kind of just depended on when I felt like staying with him.
“Q. Okay. Well, tell me how that went. I mean, only you can tell me how it went.
“A. Well, sometimes I would go down there just to see him because, you know, I don’t see him that often so I decided to go see him. Because I kind of missed him sometimes.”

Bo testified that in the few months before the accident there were no specific times scheduled for him to visit with his father and that he saw his father irregularly. Bo testified that he had his own room at both his mother’s house and his father’s house, and that he “had a stereo at both places and, you know, permanent stuff like that.” However, he added, “[m]y clothes, most of it stayed at my mom’s. When I went to my dad’s I had a little bag that I’d take stuff in.”

In B.D.B. v. State Farm, Mutual Automobile Insurance Co., 814 So.2d 877 (Ala.Civ.App.2001), the Alabama Court of Civil Appeals addressed this very provision in a State Farm automobile insurance policy. In construing this provision in light of the facts of that case, the court in B.D.B. reached a different conclusion than did the trial court in this case. In B.D.B., the Court of Civil Appeals, in a 3-2 decision, concluded:

“The policy in this case defines ‘relative’ as one ‘who lives primarily with you.’ We do not disagree with the proposition that a child of separated or divorced parents may be regarded as a resident of the household of both parents, and, if this policy had different language, then we might reach a very different result here. The language in this policy, however, is clear and unambiguous. Our careful review of the record, viewed in the light most favorable to B.D.B., requires the conclusion that B.D.B. does not primarily live with her father. The fact that B.D.B. kept personal items at her father’s house and spent two Saturdays a month with him does not compel the conclusion that she lived primarily with him.”

814 So.2d at 881.

This Court, in the recent case of Nationwide Insurance Co. v. Rhodes, 870 So.2d 695 (Ala.2003), addressed an issue very similar to one now before us. In Rhodes, this Court determined that a motorist was not a covered “relative” within the meaning of the father’s automobile insurance policy and thus could not receive uninsured-motorist benefits under that policy. The automobile insurance policy at issue in Rhodes defined the term “relative” to mean “one who regularly lives in your household and who is related to you by blood, marriage or adoption (including a ward or foster child.) A relative may live temporarily outside your household.” 870 So.2d at 697.

In Rhodes, this Court discussed the holdings in Davis v. State Farm Mutual Automobile Insurance Co., 583 So.2d 225 (Ala.1991), in which this Court held that the term “live with” as used in an insurance policy was ambiguous as a matter of law, and Ex parte American National Property & Casualty Co., 742 So.2d 1212, 1214-15 (Ala.1999), in which this Court held that the term “living in the same household” was likewise ambiguous.

However, the Rhodes Court pointed out that the use of the modifier “regularly” clarified the ambiguity of the phrase “lives ■with you.” Therefore, the Court found that, unlike the terms in the insurance policies discussed in Davis v. State Farm Mutual Automobile Insurance Co. and Ex parte American National Property & Casualty Co., the definition of a relative as “one who regularly lives' in your household and who is related to you by blood, marriage or adoption,” as used in the Nationwide policy, was not ambiguous.

The Rhodes Court concluded by stating: ‘We hold that the phrase ‘regularly lives in your household’ is unambiguous, meaning someone who usually, normally, or customarily lives in the insured’s household.
“Adopting that definition, we cannot say that Rhodes ‘regularly' lives’ in his parents’ household. His once-a-month overnight visits, occasional meals, and receipt of mail at his parents’ house 'do not'indicate that the Old Toadvine Road residence is his usual, normal, or customary residence. Rhodes has provided no evidence of his professed ‘present intent to return’ to his parents’ house, and the fact that he and his wife own another residence where Rhodes admittedly spends the greatest portion of his time weighs strongly against any conclusion other than that his mobile home is his usual, normal, or customary residence.”

870 So.2d at 698-99.

In this case, as in B.D.B., we must construe the modifier “primarily” as it applies to the phrase “lives with you [the insured]:” We note that Merriam-Webster’s Collegiate Dictionary (11th ed.2003) defines the word “primarily” to mean “for the most part” or “chiefly.” ' Although this Court has held that' a person may “live” in more than one place for purposes of uninsured-motorist coverage, see Davis v. State Farm Mutual Automobile Insurance Co., supra, we fail to see how a person may “primarily” or “for the most part” live in more than one place at one time. Because at the time of the accident Bo Harris lived “for the most part” with his mother, he could not also “live primarily with” his father.

We conclude that the trial court erred in finding that Bo Harris was a “relative,” as that term is defined in the State Farm insurance policies. Because Bo Harris did not fall within the definition of the term “relative” or under any other definition of “insured,” he was not entitled to stack the uninsured-motorist coverage available in the insurance policies issued to Hugh Harris by State Farm. See Bright v. State Farm Ins. Co., 767 So.2d 1111 (Ala.2000) (named insured’s employee could not stack underinsured-motorist coverage under policies on employer’s other vehicles that were not involved in accident, where the employee did not occupy those vehicles and he was not included within any of those categories defined as “insureds” except as an occupant of the vehicle involved in the accident); Travelers Ins. Co. v. Jones, 529 So.2d 234 (Ala.1988) (even though passengers were not named insureds, they could stack uninsured-motorist coverage because they came within the definition of “insured” under the terms of the uninsured-motorist portion of the policy and there was additional coverage for another automobile within the same insurance contract); White v. Georgia Cas. & Sur. Ins. Co., 520 So.2d 140 (Ala.1987) (a company employee, designated in the primary liability section of the insurance policy as one who is “insured thereunder,” was allowed to stack uninsured-motorist coverage under the company’s fleet policy; the passenger was held not be “insured thereunder” and was not allowed to stack uninsured-motorist coverage);

The trial court improperly denied State Farm’s postjudgment motion. We reverse and remand for further proceedings consistent -with this opinion.

REVERSED AND REMANDED.

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

HOUSTON, J., dissents.

HOUSTON, Justice

(dissenting).

Bo Harris’s parents had joint custody; under the terms of the custody arrangement, Bo was supposed to spend equal time with each parent. Each parent had a room in his or her house that was Bo’s room, in which he kept clothes and other personal belongings such as stereo equipment. The parents lived in different towns, and the son used his father’s address to enroll in the school he attended. The child spent more time sleeping at his mother’s house than he did at his father’s. I cannot hold that the record plainly shows that the trial court erred in failing to grant State Farm’s postjudgment motion. The trial court could have determined that the time Bo spent at school was time spent as a resident in his father’s house.

      . Because the only issue involved in this appeal is whether Bo Harris was entitled to stack the uninsured-motorist coverage in his father’s insurance policies, we limit the statement of facts to those involving only Bo Harris.

      . Harris was transported from the scene of the accident by helicopter to the University of South Alabama Medical Center for treatment. He underwent a variety of medical treatments, including surgery on his right ankle.

      .The policy was issued to "Deborah and Hugh Harris.” Hugh Harris is married to Deborah Harris.

      .Apparently during the pendency of this action, Bo Harris reached the age of majority. Although nothing in the record indicates when that happened, State Farm named "Hugh Harris III” as the appellee when it filed its notice of appeal.

      . Bo Harris did not meet any of the other categories of "insured” in the policies.

      . The trial court provided no grounds for its orders; neither party sought to appeal from their respective orders.

      . Lana Foley filed a motion for a summary judgment on Robinson's claim that Lana Foley negligently and/or wantonly entrusted her vehicle to her husband, Fate Foley III. The trial court granted the motion. That summary judgment is not at issue in this appeal.


author: MURDOCK, Judge.

text:
    Diane THORNTON v. ELMORE COUNTY BOARD OF EDUCATION.
    2020070.
    Court of Civil Appeals of Alabama.
    Dec. 5, 2003.

      Winn Faulk of Faulk & Reed, L.L.P., Montgomery, for appellant.
    David R. Boyd and Rhonda Mayse Gar-man of Balch & Bingham, LLP, Montgomery, for appellee.
   MURDOCK, Judge.

Diane Thornton appeals from an order of the Elmore Circuit Court, protesting her termination from employment as a bus driver for the Elmore County school system. We dismiss the appeal.

This case has been before this court previously. The background of the case is discussed in Elmore County Board of Education v. Thornton, 839 So.2d 658 (Ala.Civ.App.2002). However, in order to understand the disposition of the current appeal, it is helpful to recount some of the facts and the procedural history of this case.

Thornton was employed as a full-time bus driver by the Elmore County Board of Education (“the Board”) for each school year from 1995 through 1998. The Board terminated her employment without a hearing on September 21, 1998, effective October 14, 1998. Thornton filed a complaint in the Elmore Circuit Court against the Board in April 1999, claiming, among other things, that her dismissal had been improper under the Fair Dismissal Act, §§ 36-26-100 through -108, Ala.Code 1975 (“the Act”). The trial court on August 28, 2000, granted Thornton’s summary-judgment motion as to her claim alleging improper dismissal under the Act. In response to a motion filed by Thornton, the trial court amended its judgment on October 17; 2000, to order the Board to reinstate Thornton as an employee and to order that she be awarded back pay. The Board appealed that judgment to this court.

While the appeal was pending, in order to limit the amount of back pay that Thornton would be entitled to if she prevailed on appeal, the Board decided on January 23, 2001, to reinstate Thornton as an employee in accordance with the trial court’s amended order and to initiate proper termination proceedings against her under the Act. Thornton was given notice of her reinstatement and the commencement of termination proceedings, and she was provided a pretermination hearing in which she was permitted to present evidence on February 15, 2001. That day, following the hearing, the Board voted to terminate Thornton’s employment. In accordance with the Act’s procedures, Thornton filed an administrative appeal of the Board’s decision. On April 5, 2001, the Fair Dismissal Act review board voted to uphold the Board’s termination decision.

On June 28, 2002, this court issued its opinion affirming the trial court’s August 28, 2000, order as amended, finding that Thornton should have been considered a nonprobationary employee under § 36-26-101(a) and that she was-therefore entitled to the protections afforded to such employees by the Act during termination proceedings. On August 19, 2002, Thornton filed a motion styled as a “Motion to Compel Enforcement of [the amended August 28, 2000,] Court Order.” On August 20, 2002, Thornton filed a “Motion for Emergency Hearing Regarding Reinstatement.” The trial court granted the latter motion and set a hearing for September 10, 2002. On September 10, following the hearing, the trial court entered a bench note on the case action summary sheet stating:

“Case called for hearing. [Defendant] Elmore County Board of Education is found to have fully complied with all previous orders of this Court. Case is disposed of.”

Following this ruling, the parties filed in the trial court a joint motion regarding the manner in which back pay should be awarded to Thornton. The parties agree on the amount of back pay owed to Thornton, but they disagree as to whether such pay should be distributed to Thornton in a lump sum or as salary.

Thornton appeals from the September 10, 2002, order, arguing that after the Board’s first termination of her employment that did not comply with the Act the Board was estopped from reinstituting termination proceedings on the same ground under the Act after the trial court had ordered the Board to reinstate Thornton. However, before we address this issue, it is incumbent upon this court to ensure that it has jurisdiction to entertain this appeal. “The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act.” Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967). “The question whether a decree is final, so as to' support an appeal therefrom, is a jurisdictional one- and it is the duty of the court, where it is determined that a decree is not final, to dismiss - the appeal on its own motion.” Taylor v. Major Fin. Co., 289 Ala. 458, 461, 268 So.2d 738, 741 (1972).

Thornton contends that the September 10, 2002, bench note was a final judgment that disposed of all of the substantive issues between the parties/ The Board contends that the bench note was merely a comment by the trial court on its amended August 28, 2000, judgment and that it is not itself a final judgment that would support an appeal. The Board contends that in order to challenge the Board’s second termination of her employment Thornton must file a separate complaint in the circuit court. Both parties agree that the matter concerning how Thornton is to receive her back pay is incidental to any final judgment and that pending proceedings on that issue do not affect whether the order appealed from in this instance is a final judgment.

“An appeal ordinarily lies only from a final judgment. § 12-22-2, Ala.Code 1975. A judgment is final if it disposes of all claims or the rights or liabilities of all parties. Rule 54, Ala. R. Civ. P.; Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).” M.S.H. v. C.A.H., 829 So.2d 164, 168 (Ala.Civ.App.2002). The threshold question before this court is whether the trial court’s September 10, 2002, bench note constituted a final judgment such that this court may entertain an appeal on the issue of whether the Board is estopped from initiating termination proceedings against an employee under the Fair Dismissal Act on the ground of misconduct because it previously attempted to terminate the employee on the same ground without complying with the Act. In other words, the court must determine whether the trial court fully adjudicated the above issue, before Thornton appealed.

The bench note states that the case was “called for a hearing” arid that the trial court “found [the Board] to have fully complied with all [of the trial court’s] previous- orders.” As a consequence of this finding, the trial court concluded that the “[c]ase is disposed of.”

“Courts are to construe judgments as they construe written contracts, applying the same rules of construction they apply to written contracts. Whether a judgment is ambiguous is a question of law to be determined by the court. If the terms of a judgment are not ambiguous, then they must be given their usual and ordinary meaning and their ‘legal effect must be declared in the light of the literal meaning of the language used’ in the judgment.”

State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000) (quoting Wise v. Watson, 286 Ala. 22, 27, 236 So.2d 681, 686 (1970)) (citations omitted). The literal meaning of the trial court’s bench note is that it determined that the Board had fully complied with the court’s August 28 and October 17, 2000, orders regarding Thornton’s employment. Those orders determined that the Board must follow the termination procedures set forth in the Act and that, because the Board had failed to follow the Act in terminating Thornton’s employment, the Board must reinstate Thornton as a nonprobationary employee and give her back pay for the period during which her employment had been improperly terminated.

It may reasonably be inferred that the trial court determined on September 10, 2002, that the Board had complied with those orders through the actions it had taken in January and February 2001 when it reinstated Thornton- and agreed to give Thornton back pay. Having ascertained that the Board had complied with its previous orders, the trial court ruled that the case was disposed of. On its face, then, the trial court’s September 10, 2002, bench note is a comment on the fulfillment of its August 28, 2000, judgment, as amended on October 17, 2000. There is no question that a trial court is empowered to interpret, clarify, and ensure compliance with its judgments.

“A trial court has inherent authority to interpret, clarify, and enforce its own final judgments. See Helms v. Helms’ Kennels, Inc., 646 So.2d 1348, 1347 (Ala.1994) (‘a trial court does have residual jurisdiction or authority to take certain actions necessary to enforce or interpret a final judgment’); Gild v. Holmes, 680 So.2d 326, 329 (Ala.Civ.App.1996) (‘A trial court possesses an inherent power over its own judgments that authorizes it to interpret, clarify, implement, or enforce those judgments.’). Thus, even after this Court, on the direct appeal, affirm[s] the trial court’s ... judgment, [the trial] court retain[s] jurisdiction to interpret and clarify that judgment.”

State Pers. Bd. v. Akers, 797 So.2d at 424. Thus, even after this court had affirmed the trial court’s August 28, 2000, judgment, as amended on October 17, 2000, the trial court had jurisdiction to interpret and acknowledge compliance with that judgment and to “dispose of’ the case accordingly, which it did in its September 10, 2002, bench note.

Notably, what the trial court did not do in its bench note was make any comment or ruling on the issue of whether the Board was estopped from initiating the second termination proceedings on the same ground on which it had based its first termination of Thornton’s employment. The trial court’s September 10, 2002, bench note addressed the Board’s compliance with the August 28, 2000, and October 17, 2000, orders; it did not address, either explicitly or implicitly, the issue of estoppel with regard to the Board’s second termination of Thornton’s employment.

Therefore, because the issue of es-toppel — the issue before this court in this appeal — was not addressed by the trial court, this court has no jurisdiction to entertain the appeal. Furthermore, we find that the trial court had no jurisdiction to consider the estoppel issue even if it had been addressed in the bench note. This is so because Thornton’s complaint in this case alleged that the Board had violated the Fair Dismissal Act by the manner in which it had initially terminated her employment. The trial court determined that Thornton was correct and ordered that Thornton be reinstated as an employee with back pay. This court affirmed that judgment. The trial court then determined after a hearing that its orders had been complied with — meaning that Thornton had been reinstated as an employee and back pay was forthcoming — and it found that, accordingly, the case was disposed of because no other issues remained to be decided on the original complaint. The fact that the second termination occurred while the issue of compliance with the Act was pending on appeal does not mean that claims concerning the second termination could be brought before the trial court in the same case after a final judgment had been entered. The trial court properly determined that the case before it had been disposed of; therefore, the trial court could not rule on subsequent issues arising from the second termination. In order for Thornton to challenge her second termination, she must bring a separate action.

Based on the foregoing, the appeal is due to be dismissed.

APPEAL DISMISSED.

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


author: MURDOCK, Judge. YATES, Presiding Judge,

text:
    Steven Douglas BARSELL v. Jenny Whitney BARSELL.
    2020287.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      S. Mitchell Howie, Huntsville, for appellant.
    Nancy S. Gaines of Gaines' & Gaines, L.L.C., Magnolia Springs; and J. Brice Callaway, Huntsville, for appellee.
   MURDOCK, Judge.

Steven Douglas Barsell, the father, and Jenny Whitney Barsell, the mother, were divorced by a judgment of the Madison Circuit Court in July 2001. Pursuant to the divorce judgment, custody of the parties’ son was awarded to the father and custody of the parties’ daughter was awarded to the mother.

At the time of the divorce, both parties lived in Huntsville, only a five-minute drive apart, and the children spent alternating weekends with each parent. In March 2002, without notifying the mother, the father moved himself and the parties’ son to Nebraska. As a result of the father’s moving to Nebraska, the mother filed a petition to modify custody, asking the court to award custody of both children to her.

Following ore tenus proceedings, the trial court entered an order that states, in pertinent part:

“The previous Divorce Decree except as modified herein remains in effect. So long as, the father shall return his and his son’s residence to Huntsville, Alabama no later than the end of the son’s current school semester, custody is not modified. The Court retains jurisdiction to modify custody, nunc pro tunc, should the father fail to comply.”

The father appeals, arguing that the trial court erred in retaining jurisdiction to modify custody nunc pro tunc. The mother argues, however, that the trial court’s order is simply not a final judgment that will support an appeal. We agree with the mother.

In Rollon v. Williamson, 846 So.2d 349 (Ala.Civ.App.2002), the trial court entered an order, similar to the one in the present case, requiring the mother to return to Montgomery from Louisiana with the parties’ minor child. The trial court in Rollon did not actually modify custody; it merely stated that it would reconsider the petition to modify if the mother did not return herself and the minor child to Montgomery within 30 days. A majority of this court in a special writing concurring in the result and in a dissenting opinion agreed that such an order was not final for purposes of appeal. See Hollon, 846 So.2d at 353-54 (Murdock, J., concurring in the result, joined by Crawley, J.); Hollon, 846 So.2d at 355 (Yates, P.J., dissenting). In a portion of her dissent with which Judge Craw-ley and Judge Murdock agreed, Presiding Judge Yates wrote:

“Unless otherwise provided by law, appeals lie only from final orders or judgments. Fowler v. Merkle, 564 So.2d 960 (Ala.Civ.App.1989), writ denied, 564 So.2d 962 (Ala.1990). Here, the mother’s continued custody of the child is conditioned upon her moving back to Alabama; if she does not the trial court will reopen the father’s modification petition. Therefore, the instant order is not appealable.”

Hollon, 846 So.2d at 355 (Yates, P.J., dissenting).

For the same reasons as in Hollon, the order entered by the trial court in this ease is not appealable. The trial court neither granted nor denied the mother’s petition to modify; thus, there is no judgment from which an appeal may lie.

The mother’s request for the award of an attorney fee on appeal is granted in the amount of $1,000.

APPEAL DISMISSED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs in part and concurs in the result in part, with writing.

YATES, Presiding Judge,

concurring in part and concurring in the result in part.

I agree with the majority that the trial court’s order was not a final judgment and, therefore, not appealable. Although I believe that the court could treat the appeal as a petition for a writ of mandamus, see Hollon v. Williamson, 846 So.2d 349 (Ala.Civ.App.2002)(Yates, P.J., dissenting), I do not believe that the record demonstrates under the particular facts of this case that the husband is entitled to mandamus relief.


author: PITTMAN, Judge.

text:
    PACKAGING MATERIALS & SUPPLY COMPANY, INC. v. Jerry PRATER.
    2020788.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Robert L. Austin, Birmingham, for appellant. -
    Barry A. Brock of Walston, Wells, Anderson & Bains, LLP, Birmingham, for appellee.
   PITTMAN, Judge.

Packaging Materials & Supply Company, Inc. (“PMSC”), appeals from a summary judgment entered by the Jefferson Circuit Court on its claims against Jerry Prater, an individual allegedly doing business under the name “ComfortPlus.” We affirm.

In March 2002, PMSC sued Prater in the Jefferson District Court alleging that Prater was liable to PMSC on theories of account stated,- open account, and breach of contract. After the district court entered a judgment in favor of PMSC, Prater timely appealed to the Jefferson Circuit Court for a trial de novo. Prater then filed a motion for a summary judgment, supported by a narrative summary of facts, his affidavit, and various exhibits. Prater contended in his motion that he could not legally be held liable to PMSC because, he alleged, he had acted in a representative capacity for a corporation called “ComfortPlus, Inc.” in all of his dealings with PMSC. After PMSC had filed a response in opposition (supported by an affidavit of its president) and the parties had been afforded a hearing on the motion, the circuit court entered a summary judgment in favor of Prater. The circuit court subsequently denied PMSC’s postjudgment motion, and PMSC appealed to this court.

“Under Rule 56(c)(8), 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 [this case] 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).”

Menendez v. COLSA, Inc., 852 So.2d 768, 770 (Ala.Civ.App.2002).

The pertinent facts in this appeal are undisputed. In January 1999, Prater executed and recorded articles of incorporation with respect to a business entity known as “ComfortPlus, Inc.” Prater acted as the president of ComfortPlus, Inc., and owned all of the stock of that company, which manufactured and distributed medical supplies until its dissolution in February 2002. Because ComfortPlus, Inc., needed packing materials to ship goods, it regularly purchased such materials on credit from PMSC, which maintained an account under the name “Comfort Plus.” ComfortPlus, Inc., - customarily settled its account by issuing checks drawn on banking institutions at which it maintained accounts, such as SouthTrust Bank and Am-South Bank; these checks were signed by Prater as the authorized agent of Comfort-Plus, Inc. The record reveals that between May 1999 and September 2001, over 40 checks made payable to the order of PMSC were drawn on a SouthTrust Bank account maintained in the name of Com-fortPlus, Inc. Each of those checks bore the signature “Jerry Prater” and identified the issuer as “COMFORTPLUS, INC.”; the corporation’s business address was also disclosed on the face of each of those checks.

In December 2001, a check payable to PMSC in the amount of $8,500 was drawn on an account at AmSouth Bank. A copy of that check appearing in the record shows the holder of the account to be “COMFORT PLUS,” and the address disclosed for the account holder is substantially the same address as that which appeared on the face of the SouthTrust Bank checks; the signature appearing on that check is “Jerry Prater.” However, that check, which forms the basis of PMSC’s action, was subsequently dishonored by AmSouth Bank because there were insufficient funds to cover the check at the time it was presented for payment.. ,

PMSC claims that because the AmSouth Bank check bore the name “COMFORT PLUS,” rather than the full legal name of the corporation for which Prater was acting (ComfortPlus, Inc.), and because Prater did not expressly note on the face of the check that he was signing the check in his representative capacity, he is personally liable to PMSC because the check was dishonored. However, PMSC acknowledges that in'1995 Article 3 of Alabama’s Uniform Commércial Code was amended so as to remove any requirement that one signing a check as an authorized representative of another identified person must indicate that representative capacity:

“If a representative signs the name of the representative as drawer of a check without indication of the representative status and the check is payable from an account of the represented person who is identified on the check, the signer is not liable on the check if the signature is an authorized signature of the represented person.”

Ala.Code 1975, § 7-3-402(c). The Official Comment to § 7-3-402 states:

“Subsection (c) is directed at the check eases. It states that if the check identifies the represented person the agent who signs on the signature line does not have to indicate agency status. Virtually all checks used today are in personalized form which identify .the person on whose account the check is drawn. .In -this case, nobody is deceived into thinking that- the person signing the check is meant to be liable. This subsection is meant to overrule cases decided under former Article 3 such as Griffin v. Ellinger, 538 S.W.2d 97 (Texas 1976).” .

Thus; under § 7-L3-402 as amended -in 1995, where an agent signs a check that “identifies” a particular principal as- the holder of the account on which the check is drawn, the agent is not subject to personal liability oii the check. While no Alabama case has previously considered this issue, our conclusion mirrors that of other state appellate decisions applying the revised version of Article 3 of the Uniform Commercial Code: Peterson v. Holtrachem, Inc., 239 Ga.App. 838, 521 S.E.2d 648 (1999); Medina v. Wyche, 796 So.2d 622 (Fla.Dist.Ct.App.2001); Raid, Inc. v. Andrew (No. CV000178828S, Feb. 8, 2002), 47 U.C.C. Rep. Serv.2d 633 (Conn.Super.2002) (not reported in A.2d).

Citing ■ Ala.Code 1975, § 10-2B-4.01(a)(1), a portion of the Alabama Business Corporation Act, which requires corporations to include either the word “corporation” or “incorporated” in their names, PMSC argues that “ComfortPlus, Ine.” was not “identified” on the AmSouth Bank check because the face of that check bore the name “COMFORT PLUS.” However, we do not believe the omission of the corporate identifier “Inc.” from the face of the AmSouth Bank check signed by Prater (or, for that matter, the addition of a space between the words “Comfort” and “Plus”) is legally significant.. ..The Official Comment to § 7-3-402 states that although the pre-1995 version of Article 3 the Alabama Uniform Commercial Code “spoke of the represented person being ‘named’ in the instrument,” the revised article “speaks of the represented person being ‘identified’ in the instrument” (emphasis added); that revision constitutes a “change in terminology” that “is intended to reject decisions ... requiring that the instrument state the legal name of the represented person.” As the Ohio Court of Appeals noted in The Promotion Co., Inc./Special Events Division v. Sweeney, 150 Ohio App.3d 471, 782 N.E.2d 117 (2002), the most recent revision of § 3-402 of the Uniform Commercial Code (from which Ala.Code 1975, § 7-3-402 is derived) “establishes] that failure to use the exact legal name of the represented person is not fatal to the agent.” 150 Ohio App.3d at 480, 782 N.E.2d at 124; cf. Peterson, 239 Ga.App. at 838, 521 S.E.2d at 648 (noting that agent had signed check drawn on account of “CS Industries,” a trade name for a business entity known as “Textiles Specialties & Chemicals”). Under the facts of this case, ComfortPlus, Inc., was “identified” as the issuer of the AmSouth Bank check so as to render it liable to PMSC for that check’s dishonor.

' Based upon the foregoing facts and authorities, we conclude that the trial court correctly entered its summary judgment in favor of Prater.

AFFIRMED.

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


text:
    Lawrence H. BUNDRICK, Jr., M.D. v. Letitia Wyatt McALLISTER.
    2020635.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      W. Stanley Rodgers and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellant.
    Tommy H. Siniard and Brent H. Jordan of Siniard, Timberlake & League, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

After a jury trial, the Madison Circuit Court entered a judgment awarding $85,000 in damages to Letitia Wyatt McAl-lister in her action against Lawrence H. Bundrick, Jr., M.D., under the Alabama Medical Liability Act, § 6-5-480 et seq., Ala.Code 1975. McAllister subsequently filed a motion for an award of costs pursuant to Rule 54(d), Ala. R. Civ. P., in the amount of $45,064.88. Attached to that motion was an exhibit listing charges for particular classes of cost items claimed by McAllister, including charges for “medical records,” “X-ray copies,” “professional fees,” “expert witness fees,” “court. costs” (such as filing and subpoena fees), “depositions,” “investigative services,” “travel expenses,” and “trial exhibits.” Dr. Bun-drick opposed the motion for an award of costs, filing two briefs contesting various specific items and generally challenging the sufficiency of McAllister’s motion. McAllister then filed an “evidentiary submission” in support of her motion, and Dr. Bundrick filed a motion to strike that submission.

After considering the parties’ submissions, the trial court entered an order taxing as costs all of the expenses identified by McAllister with the exception of “travel expenses” in the amount of $1,189.25, certain expenses for trial exhibits totaling $4,078.26, and certain professional fees totaling $1,465. Although the trial court ordered Dr. Bundrick to pay costs “in the amount of $88,332.87,” the claimed expenses remaining after subtracting the expense items disallowed by the trial court actually total $38,332.37, i.e., 50 cents less than the amount awarded.

Dr. Bundrick has appealed from the trial court’s order awarding costs. “[A] party aggrieved by an award of costs may appeal the propriety of such an award, even where the merits of the underlying case are not before the appellate court.” Garrett v. Whatley, 694 So.2d 1390, 1391 (Ala.Civ.App.1997) (citing City of Birmingham v. City of Fairfield, 396 So.2d 692, 694 (Ala.1981)). However, our review of a trial court’s order taxing costs pursuant to Rule 54(d) is limited to determining whether “a clear abuse of discretion” is present. Garrett, 694 So.2d at 1391.

Dr. Bundrick contends generally that the trial court abused its discretion in awarding any costs (other than “court costs” of $592.63, representing the filing fee and the trial court clerk’s subpoena fees, that he does not contest on appeal) because they were “not substantiated by any competent evidence.” Specifically, he argues that the documents attached to McAllister’s supplemental submission were not “authenticated” pursuant to Rule 901, Ala. R. Evid. We disagree. Each cost item alleged by McAllister and allowed by the trial court was supported by an official reporter’s certificate (as to deposition costs) or law-firm checks representing payment of, and corresponding invoices evidencing, all other claimed expenses. Rule 901(b)(4), Ala. R. Evid., indicates that the “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances,” will suffice to demonstrate that a document is what its proponent claims it to be. We therefore conclude that the trial court could- have deemed McAllister’s “evidentiary submission” in support of her motion for an award of costs sufficiently authenticated despite Dr. Bundrick’s objection thereto.

We now turn to Dr. Bundrick’s challenges to specific cost items allowed by the trial court. Dr. Bundrick contends that the trial court should not have awarded $20,600.02 that McAllister claimed as “deposition costs.” We note that under Ala.Code 1975, § 12-21-144, as interpreted by our Supreme Court in Ex parte Strickland, 401 So.2d 33 (Ala.1981), a trial court may, in its discretion, tax all of the costs of any deposition taken in a case, regardless of whether the deposition was used at trial, if the deposition was reasonably necessary.

In this medical-liability action, the parties took a number of depositions, including several videotaped depositions, of expert and other witnesses. By necessity, the services of the people who transcribed and recorded those depositions (and, in one instance, attended a scheduled videotaped deposition that was cancelled) qualify as “costs” of those depositions. Likewise, the weight of authority indicates that the reasonable necessity of editing services with respect to depositions taken using videographic media is a matter for the trial court to determine. See United Int’l Holdings, Inc. v. The Wharf (Holdings) Ltd., 174 F.R.D. 479, 483 (D.Colo.1997) (finding editing costs to be “part and parcel” of court-reporting fees with respect to deposition); 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure: Civil § 2115, pp. 119-120 (2d ed.1994) (“the better view [is that] a videotape is regarded as a deposi-tiomrelated expense ... so that the party may recover as costs the full amount for videotaping and showing the testimony”); compare Unif. Audio-Visual Deposition Act § 5, 12 U.L.A. 51 (1996) (reasonable expenses of recording, editing, and using an audio-visual deposition “may be taxed as costs”).

The trial judge, who was present during the trial and witnessed the parties’ presentations and arguments, is, in our view, in a far better position to determine the reasonable necessity of a particular deposition than an appellate court, especially where, as in this case, the full trial transcript does not appear in the record on appeal. We will therefore not - disturb the award of costs to the extent that it taxed to Dr. Bundrick the amounts claimed by McAllis-ter that represent charges assessed by stenographers and videographers for services rendered with respect to the depositions taken by the parties (i.e., $11,363.61).

On the other hand, we cannot conclude that all of the items classified by McAllister as “deposition costs” are allowable under Alabama law. Specifically, there are several items listed as “deposition fees” that are actually fees that McAl-lister paid to various expert witnesses in consideration for giving deposition testimony. In addition to these items, which total $8,788.76, McAllister separately sought, and was awarded, $13,650 in “expert witness fees” with respect to charges assessed by Dr. Charles Vinnik, Dr. Steven Dick, and Dr. Rekha Vankineni for “professional fees,” “professional services,” “review” fees, and conferences, as well as $400 in “professional fees” charged by Dr. Carol Walker.

As Dr. Bundrick correctly notes, our Supreme Court held in 1946 that “[t]here is practically unanimity of authority in this country that compensation of experts cannot be allowed and taxed against the parties as costs in litigation unless so provided by statute.” Hartley v. Alabama Nat’l Bank of Montgomery, 247 Ala. 651, 656, 25 So.2d 680, 683 (1946); accord, Garrett, 694 So.2d at 1391-92 (applying Hartley in reversing award of expert-witness fees while noting that workers’ compensation actions present exception to the rule stated in Hartley). While we are not unsympathetic to McAllister’s contention that the expert-witness fees she has incurred are representative of the relatively high costs of prosecuting an action under the Alabama Medical Liability Act, neither the legislature nor our Supreme Court has seen fit to allow such fees to be recovered, and we must therefore conclude that the trial court abused its discretion in failing to exclude those items (which amount to $22,838.76) from its award of costs.

Finally, we address the remaining items that were claimed as taxable costs by McAllister that Dr. Bundrick has challenged on appeal. We cannot conclude that the trial court abused its discretion to the extent that its award of costs directs payment to McAllister of the costs she incurred in reproducing depositions, X-ray images, and other medical records that were used as exhibits and illustrations. Copying expenses have been recognized by the Alabama Supreme Court as appropriate for reimbursement. See Lewis, Wilson, Lewis & Jones, Ltd. v. First National Bank, 435 So.2d 20, 23 (Ala.1983). Those expenses that were listed by McAllister as “medical records,” “X-ray copies,” and “trial exhibits,” as well as the $447.65 expense claimed under “depositions” for photocopies, were therefore proper costs; those expenses amounted to a total of $2,697.62.

However, McAllister has provided no authority under Alabama law, and we are aware of none, that would support the taxing to Dr. Bundrick of a $839.75 charge paid by McAllister for expenses incurred by private investigators that undertook service of various subpoenas on behalf of McAllister. Under current federal law, fees assessed by private process servers are taxable as costs only to the extent that a government official may charge a similar fee for performing the same duty. See EEOC v. W & O, Inc., 213 F.3d 600, 624 (11th Cir.2000) (vacating trial court’s award of process-server fees as costs and remanding for determination whether requested fees “are commensurate with” statutory fees permitted to United States marshals for service). Although the Alabama Code specifies that the clerk is to be paid an $8 fee for issuing a subpoena in a civil case (see § 12-19-74, Ala.Code 1975), we have been directed to no authority from which we can conclude that any fee is properly assessed under Alabama law in a medical-liability action for the service of a subpoena. We therefore conclude that the trial court abused its discretion in failing to except the “investigative services” fees claimed by McAllister from its award of costs.

Based upon the foregoing facts and authorities, we conclude that $14,653.86 of the amount taxed by the trial court to Dr. Bundrick as costs pursuant to Rule 54(d), Ala. R. Civ. P., was proper. However, items representing expert-witness fees incurred by McAllister in the amount of $22,838.76 and representing “investigative services” fees for service of process in the amount of $839.75 are not properly taxable under Alabama law to Dr. Bundrick. The trial court’s order taxing costs is therefore reversed, and the cause is remanded for the trial court to tax costs to Dr. Bundrick in the amount of $14,653.86.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . We note that Dr. Bundrick does not rely upon those portions of the Alabama Rules of Evidence pertaining to hearsay (see Rule 801 et seq., Ala. R. Evid.) as a separate basis for challenging the propriety of McAllister’s submissions in support of her motion for costs; rather, he contends solely that those submissions were unauthenticated under Rule 901. "When an appellant fails to argue an issue in its brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982). However, we caution the Bench and Bar that under Rule 803(6), Ala. R. Evid., for records of regularly conducted activities to be admissible in evidence for the truth of the matters stated therein, "the proponent must call a witness to lay the prescribed foundation,” i.e., "that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of that business activity to make the record.” Rule 803, Ala. R. Evid., Advisory Committee's Notes (emphasis added).

      . See Papas v. Hanlon, 849 F.2d 702, 704 (1st Cir.1988) (affirming judgment taxing "no-show deposition costs” as incidental court-reporting fees).

      . These include a $900 fee payment to "The Clinic for Neurology” for the deposition, of Dr. Lee McDaris, fees of $1,000 and $1,013.76 paid to Dr. Carol Walker, a $2,000 fee paid to Dr. Charles Vinnik, fees of $600 and $375 paid to "Alabama Gastroenterolo-gy” for the deposition of Dr. Rekha Vankine-ni, a fee of $500 paid to “North Alabama Neurological” for a deposition of Dr. Joel Pickett, a fee of $1,500 paid to "North Alabama Neurology” for a videotaped deposition of Dr. Pickett, and a fee of $900 paid to Dr. Jeff Creasy.

      . Although we affirmed an award of costs in Rayford v. Rayford, 456 So.2d 833 (Ala.Civ.App.1984), that included an allowance for expenses of a private investigator who was retained by a custodial parent to track down a noncustodial parent who had absconded with the parties' children, we expressly based our decision upon “the broad equity powers of the court in child custody matters to adjust the equities between the parties.” 456 So.2d at 835. In contrast, McAllister sought and obtained an award of damages from Dr. Bun-drick and in no way invoked the trial court's "equity powers.”


author: PITTMAN, Judge. THOMPSON, Judge,

text:
    S.M. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2020649.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.
    Utopia C. Cassady of Cassady & Cassa^ dy, P.C., Evergreen, for appellant.
    William H. Pryor, Jr., atty. gen., J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill and Connie M. Carraway, asst, attys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; § 26-18-7, Ala.Code 1975; Ex parte State Dep’t of Human Res., 834 So.2d 117 (Ala.2002); and Ex parte State Dep’t of Human Res., 624 So.2d 589 (Ala.1993).

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

THOMPSON, J., dissents, with writing.

MURDOCK, J., dissents, without writing.

THOMPSON, Judge,

dissenting.

My review of the record indicates that the trial court’s decision to terminate the mother’s parental rights was premature. See K.A.C. v. Jefferson County Dep’t of Human Res., 744 So.2d 938 (Ala.Civ.App.1999); see also L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996). Given the record on appeal, I cannot say that the Department of Human Resources has established that the evidence in support of its petition in this case was “so ‘clear and convincing’ as to support ‘the last and most extreme disposition permitted by law, the termination of parental rights.’ ” T.H. v. State Dep’t of Human Res., 740 So.2d 1089 (Ala.Civ.App.1998)(quoting Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988)). Accordingly, I dissent.


author: PER CURIAM.

text:
    Rex HARTLEY v. STATE of Alabama.
    2020799.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Rex Hartley, pro se.
    Andrew W. Redd, gen. counsel and asst, atty. gen., Department of Corrections, for appellee.
   PER CURIAM.

Rex Hartley, an inmate at the Easter-ling Correctional Facility (“the facility”), appeals from the dismissal of the underlying action in the Barbour Circuit Court in which he filed, pro se, a “Civil Complaint for Declaratory Judgment” (“the complaint”) against the facility’s warden. Hartley contends that the trial court erred in construing his complaint as a petition for a writ of habeas corpus, and he asks for various forms of relief to correct the alleged error.

Hartley contended in his complaint that the prohibition against cruel and unusual punishment in the Eighth Amendment to the United States Constitution and his Fourteenth Amendment right to equal protection under the law are being violated by the warden of the facility because, he alleged, he and other inmates have no shelter to protect them from the elements when they walk from their cell blocks to the facility’s kitchen, laundry room, and infirmary. As a result, he contended, the inmates get wet when it rains, and, unless they have a change of clothes, the inmates must wear their wet clothes for the remainder of the day. Hartley averred that, “[depending on the temperature, a walk in the rain can result in mental anguish, physical suffering, and discomfort.” Hartley requested a declaration that this treatment violates his constitutional rights under the Eighth and Fourteenth Amendments, and he moved for an injunction requiring the facility either to build a covered walkway from the inmates’ cell blocks to the other buildings they must go to or to provide “full body” raincoats free of charge to indigent inmates who cannot afford to buy raincoats from the facility’s store.

Hartley filed his complaint on December 17, 2002. The State filed a motion to dismiss the complaint on February 3, 2003, arguing that venue for the action was proper in Montgomery County, not in Barbour County. On February 18, 2003, the circuit court dismissed Hartley’s action, stating, in pertinent part:

“The above-styled Petition for Writ of Habeas Corpus being considered by the Court along with the Motion to Dismiss filed by the Respondent, the Court is of the opinion that the motion is well taken and the above-styled petition is due to be dismissed and denied.
“It is therefore ordered, adjudged, and decreed that the above-styled Petition for Writ of Habeas Corpus be dismissed.”

On March 7, 2003, Hartley appealed to the Court of Criminal Appeals, which transferred the case to this court due to lack of subject-matter jurisdiction.

Hartley contends that the circuit court erred in construing his complaint as a petition for thé writ of habeas corpus, and he requests that this court order the circuit court to rescind its dismissal order and either (1) transfer the ease to the Montgomery Circuit Court, where proper venue lies, or (2) enter an order dismissing the case without prejudice so that he can refile his complaint in the Montgomery Circuit Court.

In its brief to this court, the State agrees that proper venue lies in the Montgomery Circuit Court. However, the State contends that even if the Barbour Circuit Court incorrectly construed Hart-ley’s complaint as a petition for a writ of habeas corpus, its dismissal of the action was sufficient to provide to Hartley one of the two alternative forms of relief he seeks in this appeal, namely, enabling Hartley to refile his complaint" in the Montgomery Circuit Court.

Both parties are correct in their assessment that Barbour County is not the proper venue in which to file Hartley’s complaint. Section 6-3-9, Ala.Code 1975, states, in pertinent part: “All actions where the prison system or the state on account of thé prison system is interested must be commenced in Montgomery County in any court having jurisdiction' of the amount involved.... ” Hartley’s suit against the warden of the facility based on the conditions at the facility is an action against the state prison system and thus should be filed in the Montgomery Circuit Court.

Both parties are also correct that the circuit court erred in construing Hart-ley’s complaint as a petition for-a writ of habeas corpus rather than as a civil action alleging violations of constitutional rights involving conditions of confinement.

“The relief [an inmate] seeks from alleged cruel and unusual treatment in the prison system is not cognizable under a writ of habeas corpus, and the appropriate remedy in this case for the claim of illegal conditions of confinement, if proved, would not be release from custody....
“ ‘[T]he sole function of habeas corpus is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose.’ ”

Taylor v. State, 455 So.2d 270, 270-71 (Ala.Crim.App.1984) (quoting Cook v. Hanberry; 592 F.2d 248, 249 (5th Cir.1979), revised, 596 F.2d 658 (5th Cir.1979)). Hartley does not seek relief from his imprisonment; rather, he seeks a change in certain conditions at the prison facility in which he is housed. Therefore, the circuit court erred in construing Hartley’s complaint as a petition for a writ of habeas corpus.

Even though the circuit court construed the complaint incorrectly, that action was harmless error in relation to the relief requested by Hartley on appeal. Hartley requests that this court recognize that he filed a civil action and order the trial court to either transfer venue to Montgomery County or to dismiss the case without prejudice so that Hartley may refile the complaint in Montgomery County. The circuit court dismissed what it incorrectly construed to be a petition for a writ of habeas corpus on the ground of improper venue. A dismissal of a petition for a writ of habeas corpus on the basis of improper venue is without prejudice. See, e.g., Brooks v. Alabama Bd. of Pardons & Paroles, 644 So.2d 481, 483 (Ala.Crim.App.1994) (“ ‘[A] denial of habeas corpus is not res judicata. The principle of res judicata is inapplicable in habeas corpus petitions.’ ”) (quoting Teat v. State, 636 So.2d 697, 698 (Ala.Crim.App.1994) (citations and emphasis omitted)); Campbell v. State, 436 So.2d 7, 7 (Ala.Crim.App.1983) (overruling rehearing on court’s affirmance of trial court’s dismissal of a petition for a writ of habeas corpus on the ground of improper venue, stating that the dismissal was without prejudice).

Thus, because the trial court treated Hartley’s complaint as a petition for a writ of habeas corpus, the trial court’s dismissal of that complaint on the basis of improper venue was necessarily without prejudice. The relief Hartley requests from this court is therefore unnecessary. Hartley is free to refile his complaint in the Montgomery Circuit Court. Accordingly, we affirm the judgment of the circuit court.

AFFIRMED.

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

CRAWLEY, J., concurs in the result, without writing.

      . This court subsequently transferred the case to the Alabama Supreme Court; that court transferred the case .back to this co,urt, pursuant to § 12-2-7(6), Ala.Code 1975.

      . We note, however, that if Hartley’s petition had been a petition for a writ of habeas corpus, it would appear that § 15-21-6(a), Ala. Code 1975, would have been applicable. That section requires that when a petitioner is confined in a penitentiary, a petition for a writ of habeas corpus "must be addressed to the nearest circuit court judge,” which has been construed to mean that the petition must be filed in the county in which the inmate is incarcerated. See, e.g., Anderson v. State, 710 So.2d 491 (Ala.Crim.App.1997).


text:
    Walter REEVES v. STATE of Alabama.
    2021089.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Walter Reeves, pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

Walter Reeves appeals from the denial of his motion for relief from a judgment forfeiting his 1976 Cadillac automobile’ to the State of Alabama pursuant to § 20-2-93, Ala.Code 1975, which provides for forfeiture of automobiles used or intended to be used to transport, or to facilitate the transport, sale, receipt, possession, or concealment of, a controlled substance. We dismiss the appeal because Reeves’s notice of appeal, which was filed on August 8, 2003, was not timely filed so as to invoke our appellate jurisdiction.

The record reveals that on January 15, 1998, the State sought forfeiture of the automobile, which had been seized on October 10,1997, by filing an in rem action in the Jefferson Circuit Court, Bessemer Division. On March 10, 1998, the State moved for the entry of default and for a default judgment based upon the failure or refusal of Reeves to answer or otherwise appear in the action. Affidavits of the State’s attorney and a Jefferson County sheriffs deputy filed in support of the State’s motion stated that the automobile had been seized along with 2 kilograms of cocaine in Reeves’s possession; that Reeves had intended to use, and had used, the automobile to facilitate the violation of controlled-substances laws; that Reeves had been served with the complaint on January 26, 1998; and that more than 30 days had elapsed following service. The trial court entered a default judgment in favor of the State on March 17, 1998.

In 2001, Reeves filed a motion in the trial court requesting that the automobile be returned to him, arguing that criminal charges concerning possession of the cocaine had been dismissed and that the return of his automobile had been ordered in that case. After the trial court failed to hold a hearing on his motion, Reeves petitioned for mandamus relief in the Court of Criminal Appeals; that,court transferred his .petition to this court, where it was denied without an opinion. See Ex parte Reeves, 834 So.2d 834 (Ala.Crim.App.2002), and Ex parte Reeves (No. 2010829, June 4, 2002), 863 So.2d 1174 (Ala.Civ.App.2002) (table).

On October 16,- 2002, Reeves filed a motion requesting that the trial court set aside its default judgment on the basis that that judgment was void. Because Reeves’s motion was filed more than 30 days after the entry of the default judgment, it is properly construed as a motion for relief from that judgment under subsection (b) of Rule 60, Ala. R. Civ. P. See Ex parte King, 776 So.2d 31, 35 (Ala.2000). After a hearing on Reeves’s motion, the trial court entered an order on May 7, 2003, denying Reeves’s Rule 60(b) motion.

Although “the denial of a Rule 60(b) motion is an appealable order,” Ex parte King, 821 So.2d 205, 209 (Ala.2001), Reeves did not file a notice of appeal within 42 days of the May 7, 2003, order, as required by Rule 4(a)(1), Ala. R.App. P. Reeves did file, on May 30, 2003, a “petition for reconsideration” of the trial court’s order denying his Rule 60(b) motion; however, the Alabama Rules of Civil Procedure do not allow a “motion to reconsider” the denial of a Rule 60(b) motion.” Pledger v. Pledger, 570 So.2d 1249 (Ala.Civ.App.1990). Moreover, “the Alabama Rules of Appellate Procedure do not suspend the running of the time for filing a notice of appeal during the pendency of a motion to reconsider the denial of a Rule 60(b) motion.” Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); see also Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998), and Favors v. Skinner’s Wholesale Nursery, Inc., 860 So.2d 359 (Ala.Civ.App.2003).

As we noted in Favors, the timely filing of a notice of appeal is a jurisdictional act, and jurisdictional matters are of such magnitude that we take notice of them at any time, even ex mero motu. 860 So.2d at 361. The failure to appeal within the prescribed time is fatal and requires the dismissal of the appeal. Id. Because Reeves did not file a notice of appeal within 42 days of the trial court’s May 7, 2003, order denying his Rule 60(b) motion for relief from the trial court’s March 17,1998, judgment, and because his “petition for reconsideration” did not toll the time for filing a notice of appeal, Reeves’s appeal is due to be dismissed.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result, without writing.


author: BASCHAB, Judge. COBB, Judge,

text:
    Christopher DERAMUS v. STATE.
    CR-00-2420.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Jan. 18, 2002.
    Christopher Deramus, pro se.
    Andrew W. Redd, general counsel, and Jane LeCroy Brannan, asst. gen. counsel, Department of Corrections, for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur; COBB, J., concurs in the result, with opinion, which SHAW, J., joins.

COBB, Judge,

concurring in the result.

Christopher Deramus filed a petition for a writ of certiorari in which he attacked the Aabama Department of Corrections’ classification of him as a “heinous offender.” The circuit court restyled the petition as a petition for a writ of habeas corpus and, after conducting a hearing, denied the petition. This Court affirms the trial judge’s denial in an unpublished memorandum. I concur to affirm the circuit court’s denial of Deramus’s petition. However, I do not agree with the majority’s finding, albeit in an unpublished memorandum, that “[b]ecause the appellant did not choose the correct avenue to pursue relief, his petition should have been dismissed.” Deramus filed his petition in the circuit court of the county in which he is incarcerated. The circuit court correctly looked to the content of the petition and restyled it accordingly. See, e.g., Sims v. State, 625 So.2d 1192 (Ala.Crim.App.1993).

SHAW, J., concurs.