author: MURDOCK, Justice.

text:
    B.N. MULLER III v. Linda S. SEEDS and Chris Seeds.
    1050990.
    Supreme Court of Alabama.
    June 15, 2007.
    George M. Boles of Weaver & Boles, Birmingham, for appellant.
    Garrick L. Stotser and Shay N. Click of Massey, Stotser & Nichols, P.C., Birmingham, for appellees.
   MURDOCK, Justice.

B.N. Muller III appeals from a summary judgment entered by the Chilton Circuit Court in favor of Linda S. Seeds and Chris Seeds. We reverse.

I. Facts and Procedural History

This is the second time an appeal has been taken to this Court in this case. Like this appeal, the former appeal involved a summary judgment in the Seedses’ favor and against Muller. In that appeal, this Court set forth the relevant procedural and factual history of the case:

“Muller is a minority shareholder in Silver Point, Inc. (‘Silver Point’), an Alabama corporation formed for the purpose of buying and selling real estate. In addition to his stock in Silver Point, Muller holds a mortgage on a 162-acre tract of land owned by Silver Point. Half of the stock in Silver Point is held by its president and chief executive officer, Berry Shirley, who primarily negotiated all sales of land sold by Silver Point.
“The 162-acre tract owned by Silver Point is divided into six lots, and Silver Point was selling the lots.[] As each lot was sold, Muller would execute a release of the lot from the operation of his mortgage. At the time of this litigation, Lots 1, 2, 4, and 5 had been sold by Silver Point and released by Muller; Lots 3 and 6 remained subject to the mortgage. In early 2000, the Seedses, after negotiating with Shirley, entered into a sales contract to purchase Lot 3 from Silver Point. However, Muller refused to execute a release of Lot 3 upon its sale, writing on the sales contract, ‘Rejected-No Value.’
“Silver Point, through Shirley, and the Seedses proceeded with the sale, notwithstanding Muller’s refusal to release Lot 3 from the mortgage. The Seedses closed on the sale, paying $60,350 for Lot 3, of which $12,500 was paid to Silver Point. Of the $12,500, $11,000 was tendered by check to Muller, who alleges that he took the check ‘as evidence’ but that he never cashed it or deposited it.
“Subsequent to the closing, Muller informed Shirley and the Seedses that he had never released Lot 3 from his mortgage, and he requested that possession of Lot 3 be surrendered to him. When neither Shirley nor the Seedses complied with Muller’s request, the mortgage being in default, Muller proceeded to foreclose upon the property; pursuant to the power-of-sale provision in his mortgage, he conducted a foreclosure sale, at which he purchased the property that had not been released from the mortgage — Lots 3 and 6 — as the highest bidder. The Seedses refused to surrender possession. Muller then timely filed an ejectment action in the Chilton Circuit Court, seeking to have that court eject the Seedses from Lot 3. Muller’s complaint also purported to seek relief in rem against Lot 3.
“The Seedses timely filed an answer and a counterclaim against Muller, alleging breach of contract and wrongful foreclosure. Their answer asserted 10 defenses, some of which were affirmative defenses, such as payment. The Seedses, however, never explained exactly what contract they were alleging in their counterclaim Muller had breached.
“The Seedses filed a motion for a summary judgment on Muller’s ejectment claim against them, which the trial court initially denied. Approximately one year later, however, after further discovery, the Seedses filed a renewed motion for a summary judgment, again only as to Muller’s ejectment claim, which the trial court granted. The court, pursuant to Rule 54(b), Ala. R. Civ. P., certified the summary judgment as a final judgment.”

Muller v. Seeds, 919 So.2d 1174, 1176 (Ala.2005) (“Muller I ”). Muller appealed, and this Court reversed the summary judgment and remanded the case.

In Muller I, the Seedses argued that Muller had received sufficient proceeds from the sale of lot 3 to satisfy his lien on lot 3. This Court held that this argument was without merit because Muller’s mortgage “contained no language providing that he would grant a release upon the payment of any consideration.” 919 So.2d at 1177.

The Seedses also argued in Muller I that Muller had authorized Shirley, the president of Silver Point, Inc., both to sell the lots and to grant partial releases from Muller’s mortgage. This Court held that this argument also was without merit. The Court noted that the Seedses did not make this argument to the trial court, but, instead, had raised this argument for the first time on appeal. 919 So.2d at 1177. Furthermore, it noted that the Seedses’ evidence on this point, “a short colloquy from a deposition of a third party[,] when viewed in the light most favorable to Muller, as the nonmovant, merely established] that Muller authorized Shirley to handle transactions and quote prices with respect to those lots Muller had released from his mortgage.” 919 So.2d at 1177.

Finally, this Court addressed the Seeds-es’ argument that Muller’s foreclosure was wrongful and was due to be set aside because the property had been sold at the foreclosure sale en masse, ie., lots 3 and 6 had been sold together, rather than in individual parcels. The Court pointed out that, in previous cases, a court had set aside a mortgage-foreclosure sale only upon a pleading specifically requesting that relief. 919 So.2d at 1178. It noted that, although the Seedses had requested this relief in a counterclaim, their summary-judgment motion was directed only to Muller’s ejectment claim; the Seedses’ counterclaim had “never been ruled upon and [was] not before this Court.” 919 So.2d at 1178.

Following this Court’s reversal of the summary judgment and remand to the trial court, the Seedses again sought a summary judgment. This time, they sought a summary judgment not only on Muller’s ejectment claim, but also on their wrongful-foreclosure claim. They argued that Muller had authorized Shirley to sell lot 3 free and clear of his mortgage lien and that Muller’s en masse sale of all the property covered by his mortgage — lot 3 and lot 6 — -wrongfully hindered their right to redeem lot 3.

On March 3, 2006, the trial court granted the Seedses’ motion for a summary judgment. The trial court entered the following judgment on the case-action-summary sheet:

“The issue of Motion for Summary Judgment as filed by Defendants] Seeds[es], argument heard. There being no genuine issue of material fact and the Defendants Seeds[es] are entitled to a Summary Judgment on issue of setting aside the foreclosure and vesting title in Defendants on Lot # 3 Silver Point Subdivision. There being no just cause for delay. This is a final judgment.”

Muller appeals.

II. Standard of Review

The standard of review that we applied in Muller I is equally applicable to the present appeal:

“This Court reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that ■ there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, this Court reviews the evidence in the light most favorable to the nonmov-ant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmovant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence 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.’ West v. Founders Life Assurance Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller I, 919 So.2d at 1176-77.

III. Analysis

Once again this Court is presented with the issue whether a genuine issue of fact exists as to Shirley’s alleged authority to release Muller’s mortgage lien on lot 3. This Court addressed that issue in the previous appeal, holding that the evidence upon which the Seedses relied, a portion of a deposition of a third party, when considered in the light most favorable to Muller, did not support a summary judgment in the Seedses’ favor. Muller I, 919 So.2d at 1177. In the present appeal, the Seedses rely on the same portion of the same deposition of the same third party to again attempt to rebut Muller’s argument that Shirley did not have the authority to release Muller’s lien. This Court’s conclusion in the previous appeal that this portion of the deposition does not form a basis on which to contend that Muller authorized Shirley to release his lien on lot 3 remains unchanged.

The Seedses further point out that the bylaws of Silver Point conferred on Shirley, as president, the power to “execute bonds, mortgages and other contracts.” This provision does not demonstrate that Shirley had the power to do anything other than act on behalf Silver Point. Muller, not Silver Point, held the mortgage lien on lot 3. Silver Point’s corporate bylaws did not permit Shirley to take actions on behalf of Muller as a separate individual.

The Seedses also argue, in further support of their argument that Shirley had the authority to release Muller’s mortgage lien on lot 3, that Shirley had granted partial releases of Muller’s mortgage lien on four of the six lots. The portions of the record on which they rely in making this statement, however, provide no support for this assertion.

The Seedses also contend that, even if the evidence upon which they rely does not support their contention that Muller conferred actual authority on Shirley to release Muller’s mortgage lien on lot 3, “Muller is bound by the acts of Berry Shii-ley as they were done within the scope of Shirley’s apparent authority.” This argument likewise does not find adequate support in the record. The Seedses have not cited any portion of the record demonstrating that any act of Muller conveyed to them an appearance of agency in Shirley; nor have they demonstrated that, before the closing, they relied on any facts that would convey such an appearance. See Rosser v. AAMCO Transmissions, Inc., 923 So.2d 294, 301 (Ala.2005) (“ ‘[T]he “authority” must be “apparent” to the complaining party and that party must have relied on the appearance of authority; he cannot rely on an appearance of authority that he was ignorant of.’ ”); Watson v. Auto-Owners Ins. Co., 599 So.2d 1133, 1136 (Ala.1992) (A claimant “cannot rely on an appearance of authority that he was ignorant of.”). Thus, this contention by the Seedses provides no basis for the affir-mance of the trial court’s judgment.

Finally, in response to Muller’s argument that the en masse foreclosure sale was proper, the Seedses argue that that sale deprived them of the opportunity to redeem the lot they had purchased from Silver Point. As a result, they argue, the trial court properly set aside the foreclosure sale.

In Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928), this Court discussed the propriety of a foreclosure sale conducted en masse when the property foreclosed is capable of being sold in separate parcels:

“The power of sale in a mortgage is not only a power [coupled] with an interest, but it is quickened with an element of trust, ‘and the donee of the power is charged as a quasi trustee with the duty of fairness and good faith in its execution, to the end that the mortgagor’s property may be disposed of to his pecuniary advantage in the satisfaction of his debt.’
“The reason of the rule requiring property covered by a mortgage or lien which is in ‘separate parcels, distinctly marked for separate and distinct enjoyment,’ to be first offered for sale in parcels rather than en masse, is that a sale in parcels or lots opens a field to a greater number of bidders, is conducive to a better price, and ‘tends to prevent odious speculation upon the distress of the debtor,’ and enables him to redeem some of the property without being compelled to redeem it all.... And this rule applies ‘where the property covered by the mortgage is separated into several distinct lots, either by natural boundaries, by the way in which it is platted or laid out, or by the fact that the parcels are not contiguous,’ (41 C.J. 973, § 1421), and inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor (Brock et al. v. Berry, 132 Ala. 95, 31 So. 517, 90 Am. St. Rep. 896 [ (1901) ]).”

Kelly, 217 Ala. at 537-38, 117 So. at 70-71. The Court elaborated on this rule in J.H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 455, 212 So.2d 831, 843 (1968):

“When the mortgaged land consists of widely separated lots, some of which are dedicated to separate and distinct uses, and are sold by the mortgagee, at one time en masse, and by that means are caused to bring a sum much less than their real value, equity should avoid the sale and let the complainants in to exercise their equity of redemption. A mortgagee is, in a sense, a trustee for the mortgagor, and, in exercising the power of sale contained in the mortgage, the mortgagee must not disregard the rights of the mortgagor. The rule requiring that separate parcels be offered for sale separately arises out of the reasonable presumption, sanctioned by observation and experience, that property in distinct parcels, distinctly marked for separate and distinct enjoyment, will produce more when sold in parcels because the sale is thus accommodated to the probable wants of the purchasers. Of course, if such property is sold en masse and brings a fair price, the mortgagor will not be heard to complain. When a sale and purchase en masse are had under the power of sale contained in a mortgage, the mortgagor, if the purchaser acquires the property at a sum disproportionate to its real value, may, by seasonable action, have the sale annulled. Dozier v. Farrior, 187 Ala. 181, 65 So. 364 [ (1914) ].
“In a court of law, a power of sale is merely a part of a legal contract to be executed according to its terms. In a court of equity, it is quickened with the elements of a trust, and the donee of the power is charged as a quasi trustee with the duty of fairness and good faith in its execution to the end that the mortgagor’s property may be disposed of to his pecuniary advantage in the satisfaction of his debt. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 638, 87 So. 105 [(1920) ].
“In absence of statute, the effect of a sale under the power en masse, under circumstances where it is to the interest of mortgagor to have the property sold in separate parcels, is not to render the sale void, but irregular and voidable on direct attack by bill in equity filed by the mortgagor, who must show that the trust incident to the exercise of the power has been abused and that he has suffered detriment in the undue sacrifice of his property, or that his right of redemption has been unduly hampered. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 [ (1943) ].”

282 Ala. at 455, 212 So.2d at 843.

The Seedses contend that the facts in the present case are “nearly identical” to those in Conway v. Andrews, 286 Ala. 28, 236 So.2d 687 (1970), in which this Court relied on the above-stated principles in affirming an order setting aside a mortgage-foreclosure sale. In Conway, the appellant took a mortgage on certain property owned by Gulf Development Company (“Gulf’) to secure the repayment of a $90,000 note Gulf had executed in her favor. The mortgage provided that the appellant would release individual lots covered under the mortgage upon the payment of $1,200. The appellee bought one of the lots on the property covered by the mortgage, but the appellant did not release the mortgage lien on that lot. After Gulf defaulted on the note, the appellant foreclosed on the mortgage and sold the 32 parcels remaining under the mortgage, including the lot the appellee had purchased, en masse. The appellant then brought an ejectment action against the appellee. The appellee responded by filing a declaratory-judgment action in which he sought a declaration of his rights in the property. The two actions were consolidated.

The trial court set aside the foreclosure and ordered the appellant to release the appellee’s lot from the mortgage, subject to the appellee’s payment of $1,200 to the appellant. Among other things, the trial court found that the en masse sale of the lots “was deliberately calculated to unduly hamper the right of redemption” of the appellee, and that the appellant’s exercise of the power to sell the property under the mortgage “constituted a perversion of the power to a purpose foreign to its intendment and that the sale was ‘fraught with ill motive, fraud and oppression.’ ” 286 Ala. at 33, 236 So.2d at 691.

On appeal, the appellant contended that the trial court erred in overruling her demurrer to the appellee’s complaint. The Court disagreed, stating:

“The case of Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 [ (1928) ], is authority for the propositions that where the mortgage contemplates a subdivision of the property, as here, (1) the power of sale in the mortgage ‘is quickened with an element of trust’; (2) the rights, including the right to redeem part of the property without redeeming all, ‘inures to the benefit of a party who has acquired rights in subordination to the mortgage by a conveyance from the debtor’; and (3) that the reason for disfavoring en bloc sales is that such sale precludes a redemption of a separate part of the property taken.
“In order to attack a sale en bloc in equity, the mortgagor, or his grantees must show that the trust incident to the exercise of the power of sale in the mortgage has been abused and that he has suffered detriment in the undue sacrifice of the property, or that his right of redemption has been unduly hampered. Rudisill v. Buckner, 244 Ala. 653, 15 So.2d 333 [ (1943) ], and cases there cited. Appellee met these requirements in his bill.”

286 Ala. at 34, 236 So.2d at 692.

The appellant also contended on appeal that the trial court erred in entering its final decree. Addressing this argument, the Court stated, in relevant part:

“The lower court found that appellant engaged in conduct ‘deliberately calculated to conceal from the Complainant, and prevent the discovery of the existence of a mortgage lien upon his home, to the end that he should not be afforded a timely opportunity to exercise his legal and equitable rights in the premises,.... ’ We think that the trial court was saying that appellant was aware that appellee had a right under the mortgage to buy a release of Lot 8 and that appellant’s purpose in foreclosing on Lot 8, along with the other lots, was to terminate that right so that appellant could acquire the house and lot for herself. There was evidence to support such a finding. Appellant’s husband and agent admitted that appellant did not attempt to give actual notice of the foreclosure to Mr. Andrews because of the fear that Mr. Andrews would try to buy a release of his lot. And there was evidence that appellant had routinely given such releases in the past. We said in Collins v. Thompson, 259 Ala. 82, 65 So.2d 491 [ (1953) ], concerning the exercise of a power of sale by the mortgagee:
“ ‘... If in any case it is attempted to pervert the power from its legitimate purpose and to use it for the purpose of oppressing the debtor or of enabling the creditor to acquire the property himself, a court of equity will enjoin a sale or will set it aside if made. Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963 [ (1906) ], and authorities there cited....’”

286 Ala. at 35, 236 So.2d at 693. This Court affirmed the trial court’s judgment setting aside the foreclosure sale so that the appellee could purchase a release of the mortgage lien on his lot.

In response to the Seedses’ reliance on Andrews, Muller, in his reply brief, cites this Court’s decision in Ames v. Pardue, 389 So.2d 927 (Ala.1980). In Ames, the trial court set aside a mortgage-foreclosure sale of several parcels of real property on the basis that the sale had been conducted en masse. The mortgage contained a provision vesting the mortgagee/appellant with discretion “ ‘to sell [the] property ... in lots or parcels or en masse as mortgagee’s agents, auctioneer or assigns deem best.’” Ames, 389 So.2d at 929.

On appeal, this Court set forth the dis-positive issue as follows: “ [WJhether a mortgagor, by a mortgage provision, may contractually waive his right to compel the mortgagee to offer the mortgaged property first by parcel rather than en masse as equity might dictate.” 389 So.2d at 930. Resolving this issue, the Court stated:

“It is the rule in Alabama that a mortgagee is responsible to the mortgagor for the fairness of the manner of the foreclosure sale. If the property concerned consists of separate parcels which are dedicated to separate and distinct uses, the parcels should be offered separately first in order to obtain the highest possible price for the property and to give the mortgagor a chance to retain some of his property. Dozier v. Farrior, 187 Ala. 181, 65 So. 364 (1914).
“This rule applies if the property covered by the mortgage is separated into distinct parcels either by natural boundaries, by the way in which it is platted, or by the fact that the parcels are not contiguous. Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928).
“A foreclosure sale held under a power of sale may be set aside under this rule. Dozier v. Farrior, supra. A power of sale is more than a mere clause in a legal contract and equity regards a mortgagee holding a power of sale as a quasi trustee with a duty of fairness and good faith to the mortgagor in its execution. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105 (1920). To void the foreclosure sale, the mortgagor must show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 (1943).
“A mortgagee’s equitable duty to offer first by parcels cannot be abrogated by a general provision of the power of sale giving the mortgagee discretion to hold a sale ‘when, as and where it shall seem best to them.’ Bank of New Brockton v. Dunnavant, supra, 204 Ala. at 639, 87 So. at 106. However, if, as is the case here, a specific mode of discretion has been prescribed, and the parties to the mortgage are equal in sophistication and bargaining power, then a mortgagee's action taken pursuant to the discretion should be permitted to stand. In such circumstances, allowing discretion to the mortgagee would not be to ‘nullify a duty enjoined by law as essential to the ends of justice.’ Id.
“Pardue [ (the mortgagor) ] was a sophisticated banker and he conferred discretion over this matter to Central Bank [ (the mortgagee) ] in arm’s-length bargaining. The rule as to parcel by parcel foreclosure sales is intended to secure the property rights of individuals. In the absence of bad faith, fraud, or other abuse of its discretion by the mortgagee, there is no public policy which would be defeated by permitting sophisticated parties to waive this rule. We find no indication of fraud or bad faith by Central Bank.”

389 So.2d at 930-31 (emphasis added). Based on the clause in the mortgage conferring discretion on the mortgagee to dispose of the mortgaged property en masse, this Court reversed the trial court’s judgment and remanded the cause for the trial court to reinstate the foreclosure sale.

Our holding in Ames undermines the Seedses’ argument that the trial court properly set aside the foreclosure sale because Muller sold the property en masse. Like the mortgage at issue in Ames, the mortgage Silver Point executed in favor of Muller provided Muller with specific discretion as to the manner in which he could exercise his power of sale under the mortgage. The mortgage states, in pertinent part, that Muller, upon foreclosure, has the power to sell the covered property “in lots or parcels or en masse,” as he deems best. Our review of the record fails to disclose any significant difference in either the bargaining power or the sophistication of Muller (the mortgagee) and Silver Point (the mortgagor, of which Muller was a 25% shareholder). In the absence of a showing that the bargaining power or sophistication of the parties to the mortgage materially differed, or that Muller acted in bad faith, fraudulently, or otherwise abused the discretion conferred on him by the mortgage, we cannot conclude that the summary judgment for the Seedses was appropriate on the basis that Muller disposed of the property at the foreclosure sale en masse.

TV. Conclusion

Based on the foregoing, the trial court’s summary judgment cannot be sustained. We therefore reverse the summary judgment in favor of the Seedses and remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

BOLIN, J., concurs in the result.

      . More accurately, only a portion of the 162-acre tract has been subdivided into 6 lots; the other portion of the tract has not been subdivided.

      . On the same day the trial court granted the Seedses’ summary-judgment motion, the trial court denied a summary-judgment motion Muller had filed. Although in his appeal Muller requests that, in addition to reversing the trial court's summary judgment in favor of the Seedses, this Court reverse the trial court’s denial of his motion for a summary judgment and instruct the trial court to enter a summary judgment in his favor, we note that the denial of a motion for a summary judgment is an interlocutory order that will not support an appeal, absent certification under Rule 5, Ala. R.App. P. See Continental Cas. Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala.2006). Thus, the denial of Muller’s summaiy-judgment motion is not before this Court.
      Separately, we note that there are several other parties and claims involved in this action, a description of which would unnecessarily lengthen this opinion. Many of these claims remain pending. Thus, this Court’s appellate jurisdiction is based on the fact that the trial court made its summary judgment final pursuant to Rule 54(b), Ala. R. Civ.App.

      . As already noted, the evidence of record in this summary-judgment proceeding must be viewed in the light most favorable to the non-movant below, Muller.

      . We also note that, after notice was published that the property covered by the mortgage would be sold at a foreclosure sale, neither Silver Point nor the Seedses objected to the sale of the property en masse or requested that the property be sold in parcels.

      . Our conclusion is not altered by the fact that Silver Point transferred the property to the Seedses, and we do not find that any bargaining power or sophistication they possess could bear on the effectiveness of the authority the mortgage granted to Muller to sell the mortgaged property en masse. To hold that such a transfer could bear on the parties' contractual agreement that the property could be sold en masse would allow a mortgagor who has otherwise conveyed the power to a mortgagee to sell the mortgaged property at a foreclosure sale en masse to defeat this power simply by transferring the property, or a parcel thereof, to a less sophisticated third party. Such a rule could effectively allow a mortgagor to escape the bargained-for effect of its contractual arrangement with a mortgagee.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte SILVER CHIROPRACTIC GROUP, INC., d/b/a Sturbridge Chiropractic, et al. (In re Alabama State Board of Chiropractic Examiners v. Sturbridge Chiropractic et al.).
    1050980.
    Supreme Court of Alabama.
    June 15, 2007.

      James R. Cooper, Jr., of Cooper & Cooper, Montgomery, for petitioner.
    James S. Ward of Ward & Wilson, L.L.C., Birmingham, for respondent.
   BOLIN, Justice.

The Alabama State Board of Chiropractic Examiners (“the Board”), on December 13, 2005, filed administrative complaints against Steve Silver, Dr. Dawn Havel, and Dr. Jason Hart (collectively referred to as “the defendants”), alleging that they had violated § 34-24-166(b)(16), Ala.Code 1975, by advertising in a manner that violated the rules and regulations established by the Board. Specifically, the Board alleged that certain language and phrases used in the defendants’ advertising violated Ala. Admin. Code (Ala. State Bd. of Chiropractic Examiners), Rule 190-X-5.04(3)(a) through (f). Silver is the sole stockholder of Silver Chiropractic Group, Inc., d/b/a Sturbridge Chiropractic. Silver Chiropractic Group holds the license under which Sturbridge Chiropractic operates, and its principal place of business is located in Montgomery County. Silver is not a chiropractor. Dr. Havel and Dr. Hart are licensed chiropractors who are employed by Sturbridge Chiropractic.

The defendants answered the administrative complaints on January 19, 2006, alleging that the Board’s investigative process is unconstitutionally tainted in violation of the Due Process Clause; that Rule 190-X-5.04(3)(a) through (f) violates then-right to free speech; that Rule 190-X-5.04(3)(a) through (f) is unconstitutional because it is unduly vague; and that Rule 190-X-5.04(3)(a) through (f) violates their right to due process because it impermissi-bly shifts the burden of proof from the Board to the defendants. Dr. Havel and Dr. Hart each asserted as an additional defense that as employees of Sturbridge Chiropractic they had no knowledge of the advertising before its placement and that as employees they did not have authority to place advertising. Silver asserted as an additional defense that he is not subject to the disciplinary rules of the Board because he is not a licensed chiropractor and therefore is not subject to § 34-24-166, Ala. Code 1975. He contended that under Rule 190-X-5.04(3), only a chiropractor who engages in advertising is subject to discipline.

On February 23, 2006, the Board sued Silver, Dr. Havel, and Dr. Hart in the Chilton Circuit Court, the county where the Board’s offices are located, seeking the following injunctive relief: preventing Silver from practicing chiropractic medicine without being licensed to do so; preventing Dr. Havel and Dr. Hart from aiding or abetting Silver’s unlawful practice of chiropractic medicine; and preventing the defendants from disseminating any advertisement without Dr. Havel and Dr. Hart first approving the advertisement. Although not expressly requested in the complaint filed in the circuit court, the Board states in its answer and brief to this Court that it also sought a judgment declaring whether the Board had jurisdiction over Silver.

On March 10, 2006, the defendants, relying upon § 6-3-2, Ala.Code 1975, moved the Chilton Circuit Court to dismiss the Board’s complaint for lack of proper venue or, in the alternative, to transfer the action to the Montgomery Circuit Court, where, they alleged, venue was proper. The defendants supported their motion with affidavits in which each defendant testified that he or she resided in Montgomery County; that he or she was employed in Montgomery County; and that all acts complained of occurred in Montgomery County.

The Board amended its complaint on March 29, 2006, to add Silver Chiropractic Group, a domestic corporation, as a defendant. The Board at the same time responded to the defendants’ motion to dismiss or to transfer, by arguing that venue against a domestic corporation is proper in the county where the plaintiff resides and that if venue is proper as to one defendant it is proper as to all defendants. The Board also asserted that the defendants would not be inconvenienced by defending the action in Chilton County because applications for licenses and permits are submitted to the Board’s offices in Chilton County; all the Board’s records relating to the defendants are maintained in Chilton ¡County; all disciplinary meetings relating to license and permit holders are conducted in Chilton County; the Board’s executive secretary and other staff who would be witnesses in this matter reside in Chil-ton County; Chilton County is less than an hour’s drive from Montgomery County; and the defendants’ affidavits are silent as to whether any individuals treated by the doctors at Sturbridge Chiropractic reside or work in Chilton County.

On March 29, 2006, the defendants, which now included Silver Chiropractic Group, replied to the Board’s response to their motion to dismiss or to transfer, arguing that Silver Chiropractic Group did not regularly perform chiropractic services in Chilton County and, therefore, that venue was not proper in Chilton County pursuant to § 6-3-7(a)(3) or (4), Ala.Code 1975. The defendants supported their motion with Silver’s affidavit stating that neither Silver Chiropractic Group nor Stur-bridge Chiropractic conducts business in Chilton County.

Following a hearing, the trial court, on April 5, 2006, entered an order denying the defendants’ motion to dismiss the action or to transfer the action to the Montgomery Circuit Court.

The defendants petition this Court for a writ of mandamus directing the trial court to vacate its order of April 5, 2006, denying the motion to transfer the action to the Montgomery Circuit Court and to enter a new order transferring the Board’s action to the Montgomery Circuit Court.

Standard of Review

This Court has stated:

“ ‘The burden of proving a duty to transfer [an action] is on the party raising the issue.’ Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994), citing Ex parte Ralston, 519 So.2d 488 (Ala.1987), and Ex parte Finance America Corp., 507 So.2d 458 (Ala.1987).
“ ‘A petition for the writ of mandamus is the proper procedure for chai-lenging a trial court’s refusal to transfer an action based on improper venue. Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994). A writ of mandamus is appropriate when the petitioner makes a clear showing of error on the part of the trial court. Id.’
“Ex parte Children’s Hosp. of Alabama, 721 So.2d 184, 186 (Ala.1998). The standard for determining whether a writ of mandamus will issue is as follows:
“ ‘A writ of mandamus is an extraordinary remedy, and it will be “issued only when 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 United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).’
“Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). ‘This Court reviews mandamus petitions seeking review of a venue determination by asking whether the trial court exceeded its discretion in granting or denying the motion for a change of venue.’ Ex parte Perfection Siding, Inc., 882 So.2d 307, 310 (Ala.2003) (citing Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002)).”

Ex parte Sawyer, 892 So.2d 898, 901 (Ala.2004).

Discussion

A. The Individual Defendants

The individual defendants rely on § 6-3-2, Ala.Code 1975, and argue that venue is proper in Montgomery County because each individual defendant resides in Montgomery County. The Board contends that the defense asserted by Dr. Havel and Dr. Hart in their answers to the administrative complaints — each denied any knowledge or control over the advertising made the basis of the administrative complaints — was not applicable and that they had violated Rule 190-X-5.04. The Board contends that it was the position of Dr. Havel and Dr. Hart in their answers to the administrative complaints that prompted the Board to file the action in the Chilton Circuit Court. Consequently, the Board claims, the act or omission that gave rise to the Board’s action in the Chilton Circuit Court was the filing of the answers to the administrative complaints. Therefore, the Board contends, because the answers to the administrative complaints were filed in Chilton County, the act or omission complained of occurred in Chilton County, and venue is proper in Chilton County.

With regard to what constitutes proper venue as to individual defendants, § 6-3-2, Ala.Code 1975, provides, in part, as follows:

“(a) In proceedings of a legal nature against individuals:
“(3) All ... personal actions [other than actions for the recovery of land, possession thereof, or trespass or actions on contracts], if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.
“(b) In proceedings of an equitable nature against individuals:
“(3) Except as may be otherwise provided, actions must be commenced in the county in which the defendant or a material defendant resides.”

It is undisputed that Silver, Dr. Havel, and Dr. Hart all reside in Montgomery County. Therefore, venue is proper in Montgomery County, unless the act or omission complained of occurred in Chilton County, in which case venue would also be proper in that county.

The complaint filed by the Board in the Chilton Circuit Court sought injunctive relief prohibiting Silver from practicing chiropractic medicine without being licensed to do so; preventing Dr. Havel and Dr. Hart from aiding or abetting Silver’s unlawful practice of chiropractic medicine; and preventing the defendants from disseminating any advertisement without Dr. Havel and Dr. Hart first approving the advertisement. These alleged “act[s] or omission[s] complained of’ necessarily occurred in Montgomery County, where Sturbridge Chiropractic is located and where Dr. Havel and Dr. Hart are employed, and not in Chilton County, where the individual defendants filed their answers to the administrative complaints. Therefore, venue as to the individual defendants is proper in Montgomery County, and not Chilton County.

B. The Corporate Defendant

The Board amended its complaint in the circuit court to add as a defendant Silver Chiropractic Group, the holder of the license for Sturbridge Chiropractic. Section 6-3-7, Ala.Code 1975, provides, in part, as follows:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivision!] (1), (2), or (3) do[es] not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

The defendants argue that Silver Chiropractic Group does not do business in Chilton County; therefore, they argue, venue is proper in Montgomery County where Silver Chiropractic Group has its principal place of business. The Board relies on § 6—3—7(a)(3) and (4), and argues that Silver Chiropractic Group does business in Chilton County because its application for a license and for renewals of its license are submitted to the Board’s offices, which are located in Chilton County; any funds paid in connection with licensing are sent to and received at the Board’s offices in Chilton County; any meetings of the Board are conducted at its offices in Chilton County; and any dealings between the Board and its licensees — for example, any letters, telephone calls, and electronic mail received at or sent from the Board’s offices — are conducted in Chilton County.

“This Court has stated that ‘ “[a] corporation ‘does business’ in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created.” ’ ” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1093 (Ala.2002) (quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d 1356, 1358 (Ala.1993)). The only business function for which Silver Chiropractic Group was created is to provide chiropractic services. The affidavits filed by the defendants indicate that those chiropractic services are performed only in Montgomery County. Once the defendants made a pri-ma facie showing that they did not do business in Chilton County, the burden then shifted to the Board to prove that the defendants did in fact conduct business in Chilton County. The Board failed to demonstrate that the defendants performed chiropractic services in Chilton County. Accordingly, venue as to Silver Chiropractic Group is proper in Montgomery County.

We conclude that the trial court exceeded its discretion in denying the defendants’ motion to transfer this action to the Montgomery Circuit Court and that the defendants have demonstrated a clear legal right to the relief they seek. Ex parte Sawyer, supra. Therefore, we grant the defendants’ petition for a writ of mandamus and direct the trial court to vacate its order denying the defendants’ motion to transfer and to enter a new order transferring the Board’s action to the Montgomery Circuit Court.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.

      . Section 34-24-166(b) was amended effective July 1, 2006. The amendment deleted some subdivisions and renumbered the remaining subdivisions, so that the subdivision addressing advertising is now subdivision (13).


author: CRAWLEY, Presiding Judge.

text:
    D.B. and T.B. v. M.A. D.B. and T.B. v. M.A.
    2050034 and 2050277.
    Court of Civil Appeals of Alabama.
    Sept. 29, 2006.
    Rehearing Denied Dec. 22, 2006.

      B. Andrew Whitmire, Jr., Birmingham; and Edwin K. Livingston, Montgomery, for appellants.
    Carey W. Spencer, Jr., Birmingham; and Linda L. Cole, Birmingham, for appellee.
    Troy King, atty. gen., and Sharon E. Ficquette and David S. Smith, asst, attys. gen., for amicus curiae Department of Human Resources, in support of the appellee.
   On Applications for Rehearing

CRAWLEY, Presiding Judge.

This court’s opinion issued on May 26, 2006, is withdrawn, and the following is substituted therefor.

These appeals arise from consolidated proceedings involving an adoption action and an action to register and enforce a child-custody judgment entered by a Nebraska trial court. These appeals are before this court after numerous proceedings in three different courts in Alabama — a probate court, a juvenile court, and a family court — with accompanying orders from no less than five Alabama judges, in addition to proceedings in a Nebraska trial court. M.A. (“the father”) is a Nebraska resident and the father of B.B., the child at issue in this action (“the child”). In an effort to obtain custody of the child, who was removed from Nebraska without the father’s consent, the father has sought to register and enforce in Alabama a child-custody judgment entered by a Nebraska trial court. D.B. and T.B. (“the adoptive couple”), who currently have physical custody of the child, are Alabama residents who wish to adopt the child. We hold that Nebraska has subject-matter jurisdiction to determine the child’s custody; that the Nebraska judgment at issue should not have been registered in AJabama; and that because the adoptive couple were not served with process in the Nebraska proceeding, the Nebraska judgment does not comply with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A and 42 U.S.C. § 663 (“the PKPA”), or Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975 (“the UC-CJEA”), and therefore is not enforceable in Alabama. However, we reiterate that any substantive proceedings in this case must be conducted in Nebraska.

I. Factual Background

On January 21, 2004, the child was born in Nebraska. Several days later, on January 25, 2004, the child was placed by his mother, M.T. (“the mother”), who is a resident of Nebraska, into the physical custody of the adoptive couple. Five days later, on January 30, 2004, the father learned of the potential adoption. That same day, he filed notice of his intent to claim paternity and to obtain custody with the Nebraska Department of Health and Human Services. On February 2, 2004, the adoptive couple moved the child to Alabama. On February 12, 2004, the adoptive couple filed a petition for the adoption of the child in the probate court of Montgomery County (“the probate court”). Several days later, the probate court issued an interlocutory order awarding custody of the child to the adoptive couple.

On February 20, 2004, the father filed a petition in a Nebraska trial court seeking an adjudication of his claim of paternity and his right to custody of the child. On March 17, 2004, the father and the mother appeared at a pretrial hearing in the Nebraska trial court. Also present at the hearing was an attorney representing the adoptive couple, although he did not make an official appearance. During the hearing, the mother admitted that M.A. is the father of the child in this case. Following the hearing, the Nebraska trial court entered an order finding that it had jurisdiction over the parties and the subject matter of the case. That order further noted that the father and the mother had stipulated that the father was the natural father of the child. On March 30, 2004, the father moved the Alabama probate court to stay the adoption proceedings.

On April 7, 2004, the Nebraska trial court reaffirmed that it had jurisdiction to determine the child’s custody. On April 21, the Nebraska trial court held a trial, during which that court received testimony from the father, his mother, and the guardian ad litem appointed to protect the interests of the child. The mother was not present at the trial.

During the trial, the father testified that, at one point, he and the mother had planned on getting married but that the mother had broken off their relationship. The father also testified that he had tried to maintain contact with the mother and wanted to participate in the upbringing of their child but that, because of a lack of cooperation from the mother, he had been unable to do so.

The evidence introduced at trial also indicated that the mother had evidently decided, without the consent of the father, to put their child up for adoption. Before the child was born, the mother arranged to have the child adopted by the adoptive couple. The mother’s attorney apparently sent a notice of this potential adoption to the father; however, that notice was mailed to the wrong address. The mother placed an announcement about the potential adoption in a local newspaper in Nebraska; that announcement stated that the father had until five days after the last publication of the announcement, i.e., until February 12, 2004, to file notice of his intent to claim paternity and to obtain custody. As noted above, the father filed notice of his intent to claim paternity and to obtain custody of the child on January 30, 2004. On the same day as the trial, the Nebraska trial court entered a judgment stating, in part:

“3. All the evidence indicates [that the father] did everything he needed to do to be both the biological and actual father of the minor child, wanting to raise, take care of, and support his minor child;
“4. The evidence shows [that the father] did not abandon or neglect the minor child or [the mother] either during the pregnancy or after the minor child’s birth;
“5. All the evidence indicates [that the father] did all he needed to do to claim the paternity and custody of his minor child, and complied with all applicable Nebraska statutes;
“6. [The father] did not consent to the adoption of the minor child, and he did not relinquish his parental rights to his minor child;
“7. All the evidence indicates [that the father] is a good and decent person, and that [the father] is a fit and proper person to have the care, custody and control of his minor child;
“8. The evidence further shows [that the father] has supportive parents committed to helping [the father] raise his minor child; and
“9. This Court is legally required, and it would be in the best interests of the minor child to be placed in the care, custody and control of [the father].
“The Court further ORDERS, ADJUDGES and DECREES that:
“1. [The father’s] Petition for Adjudication and Right to Custody should be, and is hereby, sustained;
“2. [The father] is adjudicated to be the natural and biological father of the minor child born on January 21, 2004; and
“3. It would be in the best interests of the minor child if his physical and legal care, custody and control were awarded to [the father], and that [the father] should have the physical custody of said minor child and all rights that pertain thereto.
“IT IS SO ORDERED.”

The Nebraska trial court supplemented that judgment six days later, adding in part:

“4. With respect to the adoption proceedings in the State of Alabama, to continue such proceedings would not be in the minor child’s best interests; and
“5. Any adoption proceedings in Alabama be dismissed and any Orders thereto be dissolved and the State of Alabama assist in returning the custody of the minor child ... to his biological and custodial parent, ... [the father], so that the [father] can obtain custody of ... [the child].”

On April 29, the father moved to enforce the Nebraska trial court’s judgment in the probate court. The next day, the father also filed a verified objection to the adoption petition in the probate court. On May 10, 2004, the adoptive couple moved to transfer the adoption proceeding to the juvenile court of Montgomery County (“the juvenile court”), and the probate court did so. On June 4, 2004 the adoptive couple filed in the juvenile court a response to the father’s motion to dismiss the adoption action. In that response, the adoptive couple asserted, among other things, that the Nebraska judgment was invalid because they had not been served in the Nebraska proceeding.

On May 24, 2004, the father filed in the family court of Montgomery County (“the family court”) a request for registration and enforcement of the Nebraska judgment declaring him to be the father of the child.

On June 14, 2004, the juvenile court action and the family court action were consolidated in the juvenile court. The father’s attorney sought to serve notice of the request for registration of the Nebraska judgment on the mother by certified mail, then by publication. No response was ever received from the mother. The attorney for the adoptive couple was mailed notice of the request for registration of the Nebraska judgment, and he later admitted at a hearing on a Rule 60(b), Ala. R. Civ. P., postjudgment motion that he, as well as the adoptive couple, was aware of the registration proceeding.

The juvenile court judge who ultimately presided over this case held a hearing on whether an Alabama court could properly exercise jurisdiction over this matter, and on September 22, 2005, the juvenile court entered a judgment wherein it stated, in part:

“3. That the State of Alabama hereby declines jurisdiction of the case, finding that the State of Nebraska has never relinquished jurisdiction and that jurisdiction is proper in the State of Nebraska, County Court of Madison, Nebraska.
“4. That the Juvenile Court Clerk shall immediately transfer this matter to the State of Nebraska, Madison County Court for further proceedings in this matter. The Court notes that the issues of termination of parental rights and adoption, if any, may be properly heard by the Nebraska Court.
“5. That a copy of this Order be transmitted to the Honorable Reese McKinney, Montgomery County, Alabama Judge of Probate for his determination as to whether the pending adoption case should be stayed, held in abeyance or dismissed without prejudice.”

On September 30, 2005, the adoptive couple filed a Rule 59, Ala. R. Civ. P., postjudgment motion; on October 3, they filed a notice of appeal (appeal no. 2050034). Citing the adoptive couple’s appeal pending before this court, the juvenile court denied the Rule 59 postjudgment motion on the basis that it was “moot.” The adoptive couple subsequently filed a Rule 60(b), Ala. R. Civ. P., postjudgment motion, which the juvenile court denied on the basis that it lacked jurisdiction to consider the motion. On November 22, 2005, this court granted the juvenile court leave to consider the adoptive couple’s Rule 60(b) motion.

On December 8, 2005, while the adoptive couple’s Rule 60(b) motion was pending in the juvenile court, the Alabama Department of Human Resources (“DHR”), on behalf of the State, moved to intervene, specifically noting that the State has an interest in the enforcement of the UC-CJEA. DHR sought to intervene for the purpose of requesting that the juvenile court enforce the Nebraska judgment and order law-enforcement officials to take the child into custody and then turn him over to the custody of the father. On December 13, 2005, the juvenile court granted DHR’s motion to intervene.

The juvenile court conducted a hearing on the adoptive couple’s Rule 60(b) motion, and it ultimately denied that motion on December 20, 2005. The juvenile court’s judgment on the Rule 60(b) motion provided, in part:

“The Nebraska custody determination referenced the natural father and the natural mother. Because [the adoptive couple] were not entitled to custody or visitation under the Nebraska Custody Order — the Order being registered in Alabama — it appears that there was no requirement that notice be sent to the adoptive couple. The adoptive couple argue that their failure to contest the registration of the Nebraska Order within 30 days as provided by the statute is permissible under Rule 60(b)[, Ala. R. Civ. P.,] because [of] excusable neglect, i.e., they should have properly been served with the registration of the Custody Order and thus could not contest the registration of the Nebraska Order.
“Counsel for the natural father correctly argues that the adoptive couple have waived their right to contest the registration within the 30-day allotted time frame. It appears that the adoptive couple had actual notice of the Nebraska Order. However, there is no doubt that they had constructive notice that the Nebraska Custody Order in favor of the natural father was filed in Alabama together with a petition to enforce same.
“On May 24, 2004 prior to Judge Anderson’s Order finding the Nebraska Order enforceable as of the June 16, 2004 date of registration, the ‘Petition for Enforcement of Child Custody Determination’ was filed by counsel for the natural father. Attached to that petition as Exhibit # A was a copy of the child custody determination from the State of Nebraska. The certificate of service at the end of the pleading, signed by counsel on May 24, 2004, clearly shows the names of all persons served with a copy. These include Hon. Judge Reese McKinney, Judge of Probate, Montgomery, Alabama; Hon. Richard W. Krepela, Madison County Court Judge, Madison, Nebraska; Melissa A. Wentling, Wen-tling Law Office, Norfolk, Nebraska; Richard D. Stafford, [Nebraska Guardian ad Litem] attorney for the minor, Norfolk, Nebraska; Bryant A. Whit-mire, Birmingham, Alabama, counsel for the adoptive couple. Counsel for the natural father asserts that [the adoptive couple] waived their right to contest registration within 30 days by moving the Court to allow them to intervene as necessary parties. He further correctly asserts that even if they did not expressly waive their right to contest the registration of the valid Nebraska Order, the action of intervening in the case placed them squarely in the middle of the enforcement case. No request for a hearing was received by the Court after receipt of the May 24, 2004 Petition/Nebraska Order was filed and notice given as required under the Alabama Rules of Civil Procedure to counsel for the adoptive couple. The Rule 60(b) Motion as to notice and opportunity to request a hearing is due to be denied.
“A review of the documents filed in both the [family] court and the [juvenile] court, now consolidated, clearly shows that prior to Judge Anderson’s registration of the Nebraska custody Order, the Nebraska Interstate Compact on Placement of Children (I.C.P.C.) administrator had requested the return of the child from the Alabama I.C.P.C. administrator. Attached hereto is a copy of that request dated May 17, 2004, which reads,
“ ‘... According to the interstate compact on the placement of children ... article V (copy attached), [Nebraska] is requesting that the [Alabama] I.C.P.C. instruct the local attorney or supervising agency to cooperate in returning the child to [Nebraska]. The father has claimed paternity and been awarded custody. [Nebraska] court orders attached. Please notify Mary Dyer today, May 17, 2004, of the plan to return the child. The father will be in Atlanta, Georgia, on Wednesday, May 19th. Arrangements can be made for the child’s return to him in Atlanta by contacting his attorney, Melissa Wentling at [address omitted].’
“In addition, attached is the affidavit of Mary Dyer filed with this Court [on] June 25, 2004 in support of the natural father’s Motion to Dismiss and for Enforcement filed by counsel for the father [that] clearly sets out the timeline and evidences at paragraph #3 that the adoptive couple were required to sign an executed ‘Atr-Risk Placement’ document which provided that in the event the birth father came forward or asserted his interest in the child, even after the time of placement, that the State of Alabama could require these adoptive parents to return the child to the State of Nebraska for further determination of the rights of the putative father. Mrs. Dyer’s affidavit at paragraph # 6 states that the Nebraska I.C.P.C.’s position is that the natural father had complied with all applicable Nebraska law pertaining to claiming paternity and seeking custody of ... [the child].”

(Emphasis added.)

The juvenile court ultimately concluded that Nebraska is the proper jurisdiction to determine the matter of the child’s custody; however, despite stating that the Nebraska judgment was properly registered in Alabama, the juvenile court did not specifically order the return of the child to the father. On December 28, 2005, the adoptive couple appealed the denial of their Rule 60(b) motion (appeal no. 2050277).

II. Discussion

On appeal the adoptive couple argue (1) that the juvenile court erred when it determined that Alabama did not have jurisdiction over the adoption and related custody proceedings under the PKPA, (2) that the juvenile court relied on and misapplied an order previously entered by an Alabama circuit court, (3) that the juvenile court erred by denying them a hearing on their Rule 59, Ala. R. Civ. P., postjudgment motion, and (4) that the juvenile court erred when it denied their Rule 60(b), Ala. R. Civ. P., postjudgment motion.

With the exception of the testimony presented to the Nebraska trial court, no testimony was presented in this case. Therefore, because we must determine whether the juvenile court properly applied the law to the facts of this case, our review of this case is de novo. Green v. Green, 706 So.2d 1254, 1255 (Ala.Civ.App.1997).

A. The Extent of Alabama’s Subject-Matter Jurisdiction

1. Whether to apply the UCCJEA or the PKPA

The adoptive couple first argue in their brief to this court that the UCCJEA does not apply to this situation, because § 30-3B-103, Ala.Code 1975, a part of the UCCJEA, provides that “[tjhis chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.” Because of this language, the adoptive couple argue, Alabama law does not specifically provide for the determination of jurisdiction in adoption cases; thus, they argue, the basis for determining whether Alabama or Nebraska has jurisdiction over this matter is found in the PKPA. However, the adoptive couple’s argument is unavailing.

In this case, the adoptive couple filed their adoption action in the probate court. The father opposed the proposed adoption; he also filed in the family court a motion to register the Nebraska judgment declaring him to be the father of the child and sought to have the child returned to him. The adoption proceeding was transferred to the juvenile court and was consolidated in that court with the father’s family court action. It is clear that before continuing with the child’s adoption the issue of the child’s custody must be resolved. Indeed, § 26-10A-21, Ala.Code 1975, provides:

“If, at any time during the pendency of the adoption proceeding, it is determined that any other custody action concerning the adoptee is pending in the courts of this state or any other state or country, any party to the adoption proceeding, or the court on its own motion, may move to stay such adoption proceeding until a determination has been made by an appropriate court with jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) [] or the Parental Kidnapping Prevention Act (PKPA). The adoption may be transferred and consolidated with a custody proceeding pending in any court in this state.”

Logically, before a child can be adopted, the biological father’s parental rights must be terminated and the matter of custody must be resolved. Although the provisions of Alabama’s version of the UCCJEA do not apply to adoption proceedings, this case involved more than adoption, it involved the custody of the child as well.

In many respects, this case is similar to J.B. v. F.B., 929 So.2d 1023 (Ala.Civ.App.2005), in which this court held that a probate court in Alabama did not have jurisdiction under the UCCJEA to enter a judgment regarding the adoption of a child when Missouri was the home state of the child and a Missouri court had exercised jurisdiction over the child. However, in that case we did not specifically address the applicability of the PKPA to determine jurisdiction in adoption cases.

Importantly, Alabama’s version of the UCCJEA specifically excludes from its definition of a “child custody proceeding” in § 30-3B-102(4), Ala.Code 1975, a court proceeding involving adoption. Therefore, the initiation of the adoption proceeding in Alabama was not sufficient to confer jurisdiction in the probate court and thereby prevent the Nebraska trial court from invoking its jurisdiction as to matters involving the child’s custody.

Because the provisions of the UC-CJEA specifically exclude an adoption proceeding from the definition of a “child custody proceeding,” the initiation of an adoption proceeding in Alabama would not, by itself, confer jurisdiction on an Alabama court that is superior to the jurisdiction of another state’s court as to child custody, even if the proceedings in the other state’s court began later in time. Consequently, the adoptive couple’s only recourse is to argue that, in the absence of any provision in Alabama’s Code for determining jurisdiction in adoption cases, the provisions of the PKPA apply. However, even the provisions of the PKPA are unavailing to the adoptive couple.

The adoptive couple argue in their brief to this court that Alabama is the child’s home state and that the probate court’s interlocutory order of February 17, 2004, is a child-custody determination under the PKPA. The adoptive couple claim that the juvenile court’s “refusal” to recognize Alabama as the child’s home state, and to give effect to the probate court’s interlocutory order, was error because it led to the court’s conclusion that Alabama did not have jurisdiction.

However, it appears that under the PKPA Alabama is not the child’s home state and, furthermore, that Alabama would not have jurisdiction to determine the child’s custody under the PKPA. The PKPA defines “home state” as:

“(4) ‘home State’ means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.”

28 U.S.C. § 1738A(b)(4). In arguing that Alabama is the home state of the child, the adoptive couple also rely upon 28 U.S.C. § 1738A(c), which provides, in part:

“(c) A child custody or visitation determination made by a court of a State is consistent with the provisions of this section only if—
“(1) such court has jurisdiction under the law of such State; and
“(2) one of the following conditions is met:
“(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State mthin six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State.”

(Emphasis added.) In this case, the child was born in Nebraska; the child was moved to Alabama when he was only 11 days old, and he clearly did not live with the adoptive couple from birth. Therefore, Alabama cannot claim home-state jurisdiction under the PKPA. Furthermore, under the facts of this case, an Alabama court cannot invoke jurisdiction under any of the other provisions of 28 U.S.C. § 1738A. Indeed, under the PKPA, an Alabama court is bound to recognize the jurisdiction of the Nebraska trial court in this case because the Nebraska trial court has made a custody determination regarding the child.

In short, the juvenile court properly applied the provisions of the UCCJEA to this case, which is a consolidated adoption and custody case. A custody determination regarding the father’s parental rights had to be made before the adoption proceedings could continue. The UCCJEA would apply to the custody determination, and to the extent the PKPA applies to the adoption proceeding, its provisions were not met.

2. Whether the juvenile court properly complied with the provisions of the ■ UCCJEA concerning registration and enforcement of the Nebraska judgment

Having determined that the Nebraska trial court has subject-matter jurisdiction to determine the child’s custody, the question arises whether the father properly complied with Alabama’s statutes, the PKPA, and Nebraska’s statutes in order to register and enforce the Nebraska judgment.

The adoptive couple first argue that they were not properly served with notice of the attempt to register the Nebraska judgment in Alabama and that they were deprived of a hearing on the matter. They also argue that the Nebraska judgment should not be enforced, even if Nebraska has subject-matter jurisdiction over this case, because Nebraska did not have personal jurisdiction over the adoptive couple; specifically, they argue that under Nebraska law they should have been given notice of the proceedings in Nebraska. We address each of these arguments in turn.

Regarding the lack of notice of the father’s attempt to register and enforce the Nebraska judgment, it appears that the adoptive couple were never served with notice. However, it also appears that the first time the adoptive couple objected to the lack of notice to them of the registration and enforcement attempt was in their Rule 59 postjudgment motion. Additionally, they were avid participants in the juvenile court proceedings. Thus, it is evident that they waived their right to service of process. Consequently, they cannot now raise that argument on appeal. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 56 (Ala.2003) (stating that a failure to raise insufficiency of service of process as a defense in the answer, the amended answer, and a motion for judgment on the pleadings waived the defense of insufficiency of service); Ex parte Dowling, 506 So.2d 340, 342 (Ala.Civ.App.1986)(holding that any insufficiency of process or insufficiency of service of process upon the father was waived by him, because those defenses were omitted from the father’s motion to transfer or to dismiss); and Seymore v. Taylor, 716 So.2d 1216, 1219 (Ala.Civ.App.1997) (holding that a party’s failure to assert the defense of improper service when it filed its motion to dismiss waived that defense); see also In re D.B., 277 Ga.App. 454, 458, 627 S.E.2d 101, 104-05 (2006) (a party can waive defects in service of process unless an objection is made at the first practicable opportunityXciting In re D.R.W., 229 Ga.App. 571, 574, 494 S.E.2d 379, 381 (1997)).

The adoptive couple’s argument that the Nebraska judgment should not be registered and enforced in Alabama because they were not served with notice in the Nebraska case is more availing to the adoptive couple. They first raised this argument when objecting to the father’s motion to dismiss the adoption proceeding that they had initiated in Alabama. Specifically, the adoptive couple argue that the Nebraska judgment should not be registered in this state because the Nebraska court did not have personal jurisdiction over the adoptive couple.

We begin our analysis with Alabama’s version of the UCCJEA, which states in part:

“(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.”

§ 30-3B-303, Ala.Code 1975 (emphasis added). Furthermore, the relevant portions of § 30-3B-205, Ala.Code 1975, provide:

“(a) Before a child custody determination is made under this chapter, notice and an opportunity to he heard in accordance with the standards of Section 30-SB-108 must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”

(Emphasis added.) The adoptive couple point out that Nebraska has also adopted the UCCJEA, and its corresponding statutes provide almost identical terms. For example, § 43-1242, Neb.Rev.Stat., provides:

“(a) Before a child custody determination is made under the Uniform Child Custody Jurisdiction and Enforcement Act, notice and an opportunity to be heard in accordance with the standards of section 13-1233 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”

(Emphasis added.) Furthermore, the PKPA requires:

“(e) Before a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.”

28 U.S.G. § 1738A(e). In all these statutes, “physical custody” is defined to mean the “physical care and supervision of a child,” § 30-3B-102(14), Ala.Code 1975, and § 43-1227(14), Neb.Rev.Stat., or the “actual possession and control of a child.” 28 U.S.C. § 1738A(b)(7). Although it appears that the adoptive couple had actual notice of the Nebraska proceeding, given that one of their attorneys was present, nothing in the record indicates that the adoptive couple were properly served with notice of that proceeding. Additionally, the adoptive couple’s attorney who was present in the Nebraska proceeding never made an official appearance, and there is no indication in the record that he participated in the proceeding in any way.

This court has previously held that when another state enters a custody order without providing proper notice to a relevant party, or without giving that party a reasonable opportunity to be heard, such an order was not made in accordance with the PKPA. Ex parte Raywood, 549 So.2d 103, 104 (Ala.Civ.App.1989). When an order is not made in accordance with the PKPA, it is “not entitled to full faith and credit by the courts of Alabama.” Id. Moreover, our supreme court has observed that “neither the Full Faith and Credit Clause of the United States Constitution, nor any legislation under its authority, entitles a child custody [judgment] entered by a court lacking in personam jurisdiction over affected parties, to extraterritorial effect.” Ex parte Dean, 447 So.2d 733, 737 (Ala.l984)(citing May v. Anderson, 345 U.S. 528, 543, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), and Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)).

In this case, the Nebraska judgment does not comply with the requirements of the PKPA. Additionally, Alabama’s statutes provide that a foreign state’s judgment shall be recognized and enforced only “if the [foreign state’s] court exercised jurisdiction in substantial conformity with [Alabama’s version of the UC-CJEA] or the determination was made under factual circumstances meeting the jurisdictional standards of [Alabama’s version of the UCCJEA].” § 30-3B-303. It is evident that the Nebraska judgment also does not comply with the requirements of Alabama’s version of the UC-CJEA. Finally, the Nebraska judgment appears to not comply with Nebraska’s version of the UCCJEA in regard to providing notice to the adoptive couple.

We note that to the extent the Nebraska judgment concerned the father’s paternity of the child, no notice was specifically required to be given to the adoptive couple under the above-referenced Nebraska statutes. However, the Nebraska judgment purported to award custody of the child to the father, and thus the adoptive couple were entitled to proper notice and service of process. The lack of proper notice and service of process in this context means that a court does not obtain personal jurisdiction over a respondent. See generally, Nelson v. Robinson, 154 Neb. 64, 70, 46 N.W.2d 892, 895 (1951)(noting that Nebraska has mandatory explicit statutory provisions providing for service of process and when service did not meet those requirements the trial court did not obtain jurisdiction over the defendant).

Therefore the Nebraska judgment was entered without personal jurisdiction over the adoptive couple, and although Nebraska has proper subject-matter jurisdiction over this matter, the Nebraska judgment need not be enforced in this state.

B. The Adoptive Couple’s Remaining Arguments

The adoptive couple also argue that their Rule 59, Ala. R. Civ. P., motion was wrongly denied when the juvenile court stated that their motion was made moot by their filing of a notice of appeal. Additionally, the adoptive couple argue that their Rule 60(b), Ala. R. Civ. P., motion was wrongly denied. However, we pretermit discussion of these issues in light of the above analysis.

III. Conclusion

We affirm in part and reverse in part the judgments of the juvenile court. The Nebraska trial court had proper subject-matter jurisdiction to determine the child’s custody. However, the Nebraska trial court did not comply with the provisions of the PKPA or the UCCJEA in regard to providing notice and service of process to the adoptive couple of the Nebraska proceeding. Therefore, although the Nebraska judgment as to the father’s paternity is valid and recognizable in this state, the custody determination the Nebraska trial court made is not. The Nebraska trial court’s judgment is not required to be enforced under our own state’s version of the UCCJEA, and, it appears, it was improperly made under Nebraska’s version of the UCCJEA in that nothing in the record before this court indicates that notice and service of process of the Nebraska proceeding were given to the adoptive couple. We remand this case and instruct the juvenile court to stay the award of the child’s custody until the father properly registers an enforceable child-custody determination from Nebraska.

Additionally, we deny the father’s motions to dismiss the adoptive couple’s appeals and to strike their brief. We also deny the father’s motion for the immediate return of the child to him, as well as the adoptive couple’s motion to stay the return of the child to the father. These issues have been resolved in the body of this opinion.

APPLICATIONS GRANTED; OPINION OF MAY 26, 2006, WITHDRAWN; OPINION SUBSTITUTED; MOTIONS DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN, MURDOCK, and BRYAN, JJ., concur in the result, without writing.

THOMPSON, J., concurs in the result only, without writing.

      . At that hearing on the Rule 60(b) motion, the following exchange took place:
      "THE COURT: When did you first know that [the father] had filed to domesticate the foreign order?
      “MR. WHITMIRE [one of the attorneys for the adoptive couple]: They sent me a copy of a bunch of documents, because I said — I told them we had not received a lot of stuff. So they eventually sent me May the 24th or something of that nature—
      "THE COURT: Of what year?
      "MR. WHITMIRE: 2004. — with a lot of stuff. But still, the letter does not reflect that they're going to serve [the adoptive couple]. It just says—
      "THE COURT: That was not my question. My question is when did you have actual knowledge that [the father] had filed to register his Nebraska custody order?
      "MR. WHITMIRE: When we received it about May the 26th or seventh.
      "THE COURT: In 2004?
      "MR. WHITMIRE: Right.
      "THE COURT: So if I understand you correctly, as counsel for [the adoptive couple] you knew the order existed, you knew [the father] was attempting to register the order here.
      "MR. WHITMIRE: We knew that there was an order out of Nebraska existing. We never had heard anything else other than his letter saying to the clerk, I want you to serve [the mother]. That’s all it says. It didn’t say serve [the adoptive couple].
      "THE COURT: Either you knew that there was a Nebraska custody order or you didn’t. It’s a yes-or-no question.
      "MR. WHITMIRE: We knew. Yes. We knew.
      "THE COURT: In 2004?
      "MR. WHITMIRE: (Nodding head)
      "THE COURT: On or about May?
      "MR. WHITMIRE: Thereabout.”

      . We recognize the apparent inconsistency between section 4 and section 5 of the juvenile court's order. Section 4 declares that any issues concerning adoption may properly be determined by the Nebraska trial court, but section 5 indicates that the probate court should enter an order determining whether to stay, hold in abeyance, or dismiss the adoption proceeding. Nevertheless, the order clearly indicates that any substantive proceedings in this matter must be held in Nebraska.

      . Although DHR intervened in the proceedings below, it was not identified as an appel-lee on the notices of appeal. DHR has filed a brief with this court; that brief has a green cover. See Rule 28(h), Ala. R.App. P. ("the cover of the brief of ... an intervenor or amicus curiae [must be] green”),

      . The Uniform Child Custody Jurisdiction Act has been repealed; it was replaced by the UCCJEA.

      . Evidently, the authors of the proposed text of the UCCJEA, the National Conference of Commissioners on Uniform State Laws, anticipated that when states adopted the UCCJEA, which excludes from its jurisdictional rules adoption proceedings, they would also adopt the Uniform Adoption Act ("the UAA"), which provides rules for adoption proceedings. Alabama has not adopted the UAA, and thus there is a potential gap in state-law coverage. Practically speaking, this is not necessarily problematic, because in certain circumstances the PKPA may provide jurisdictional rules, and in many situations, such as in this case, a custody battle would invoke the jurisdictional rules of the UCCJEA and may, at the trial court’s discretion, serve as a basis for staying the adoption proceedings.

      . We do not address at this time the issue of under what circumstances an out-of-state child-custody determination that is not in compliance with the PKPA or this state’s version of the UCCJEA may nevertheless be enforced in this state. This argument was not addressed by the parties.