author: LYONS, Justice.

text:
    Michael S. SULLIVANT and Sandy Sullivant v. Charles James SULLIVAN III, as administrator of the estate of Susan Toler Sullivan, deceased.
    1051803.
    Supreme Court of Alabama.
    June 15, 2007.
    Anthony J. Bishop of Law Firm of Anthony J. Bishop, LLC, Evergreen, for appellants.
    William H. Webster, D. Mitchell Henry, and Mark E. Irby of Webster, Henry, Lyons & White, P.C., Montgomery, for appellee.

       Although Justice Parker did not sit for oral argument of this case, he has listened to the tape of oral argument.

   LYONS, Justice.

Michael S. Sullivant and his wife, Sandy Sullivant, appeal from a final judgment dismissing their action against Charles James Sullivan III, in his capacity as administrator of the estate of Susan Toler Sullivan, deceased (hereinafter “the administrator”). We affirm.

I. Factual Background and Procedural History

Michael Sullivant, a resident of Elba, was driving his vehicle when he collided with a vehicle operated by Susan Toler Sullivan, a resident of Montgomery. Sullivan was killed as a result of the accident, and Sullivant was injured. The administrator published notice to potential creditors of Sullivan’s estate in the Montgomery Independent, a newspaper published in Montgomery County. No actual notice was given to the Sullivants. Six months after his appointment the administrator, alleging that all debts of the estate had been paid in full, obtained an order from the Montgomery Probate Court closing the estate and discharging him from further liability. Within two years of the accident, but after the estate had been closed, the Sullivants sued the administrator in the Montgomery Circuit Court, asserting claims of personal injury and loss of consortium. The administrator moved to dismiss the Sullivants’ action because the six months allowed by the statute of non-claims, § 43-2-350(b), Ala.Code 1975, had expired without their having filed a claim against the estate and the administrator had been discharged by order of the probate court. The trial court dismissed the action, and the Sullivants appealed.

II. Standard of Review

“In Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993), this Court set forth the standard of review applicable to an order granting a motion to dismiss:

“ ‘The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.’ ”

Beckerle v. Moore, 909 So.2d 185, 186-87 (Ala.2005) (citations omitted).

III. Discussion

A. Overview

Relying on American Home Assurance Co. v. Gaylor, 894 So.2d 656 (Ala.2004), the Sullivants contend that because the administrator failed to provide to them the requisite notice of the administration of the estate as reasonably ascertainable creditors under §§ 43-2-60 and 43-2-61, Ala. Code 1975, the statute of nonelaims is not a bar to their claims against the estate, and they may collaterally attack in the circuit court the judgment of the probate court closing the estate and discharging the administrator. In Gaylor, this Court held that the driver of a truck involved in a fatal accident was a reasonably ascertainable creditor of a deceased motorist’s estate, and, thus, the personal representative of motorist’s estate was required to give the truck driver actual notice of the probate proceedings. Gaylor is not disposi-tive, however, because the plaintiff there asserted his claim against the estate in the circuit court before the probate court had entered an order closing the estate and discharging the administrator.

The administrator argues that the statute of nonelaims precludes the Sullivants’ action, regardless of the resolution of the collateral-attack issue, because the Sulli-vants did not file their claims against the estate within 30 days of the date they acquired actual knowledge that an administrator of Sullivan’s estate had been appointed, as required by § 43-2-350(b). The administrator also contends that a collateral attack on the probate court’s judgment in the circuit court is prohibited under Alabama law. We first address the issue whether the Sullivants’ claims are barred by the statute of nonclaims because, if they are, any issue concerning the availability of collateral attack would be rendered moot.

B. Statute of Nonclaims

The statute of nonclaims provides, in part:

“(b) All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section [claims held by the personal representative], whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in section J/,3-2-61 must be allowed 30 days after notice within which to present the claim, and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited....”

§ 43-2-350(b) (emphasis added). It is undisputed that the administrator did not provide the Sullivants with actual notice of his appointment as administrator; rather, the Sullivants learned of his appointment from their attorney after Sullivan’s estate had been closed and the administrator discharged. The issue before us is whether the notice the Sullivants received from their attorney, and not from the administrator, after the estate had been closed and the administrator discharged, is sufficient to trigger the 30-day period in § 43-2-350(b) for filing claims after the receipt of actual notice. If so, their claims are barred, because it is undisputed that this action was commenced more than 30 days after the Sullivants learned of the administrator’s appointment from their attorney.

Sections 43-2-60 and 43-2-61 set forth the provisions relevant to giving notice to creditors of an estate of the appointment of an administrator for the estate. Section 43-2-60 provides, in pertinent part:

“The personal representative must give notice of the appointment, stating the name of the deceased, the day on which letters were granted, by what court, stating the county and notifying all persons having claims against the estate to present the same within the time allowed by law or that the same will be barred. The notice of appointment,
“(1) For actual notice as required in section 43-2-61(1), must be given as soon as practicable after a creditor’s identification is known....”

(Emphasis added.) The type of notice to which each creditor is entitled depends on the classification of that creditor. Section 43-2-61 describes the two classes of creditors and the notice to which each class is entitled:

“Notice, as prescribed in section 43-2-60, must be given:
“(1) By first-class mail addressed to their last known address, or by other mechanism reasonably calculated to provide actual notice, to all persons, firms, and corporations having claims against the decedent, who are known or who are reasonably ascertainable by the personal representative within six months from the grant of letters; and
“(2) By publishing a notice once a week for three consecutive weeks in a newspaper of general circulation published in the county in which the letters were granted.... ”

(Emphasis added.) The administrator does not here dispute that the Sullivants were reasonably ascertainable creditors. Rather, the administrator contends that the notice the Sullivants received from their attorney after the estate had been closed and the administrator discharged was sufficient to trigger the 30-day savings clause in § 43-2-350(b) of the statute of nonclaims.

The administrator further contends that the statute of nonclaims may be triggered by any notice, not necessarily notice as described in §§ 43-2-60 and 43-2-61. The administrator cites Blackwell v. Williams, 594 So.2d 56 (Ala.1992), but notes that in that case this Court did not reach the issue whether the creditor’s receipt of notice of appointment from a source other than the personal representative was sufficient to trigger the 30-day period, because the Court determined that the creditor was not reasonably ascertainable and therefore was not entitled to actual notice. The administrator also cites Ivory v. Fitzpatrick, 445 So.2d 262 (Ala.1984); Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956); Barrett v. Fondren, 262 Ala. 537, 80 So.2d 243 (1955); and Smith v. Nixon, 205 Ala. 223, 87 So. 326 (1921), for the proposition that the statute of non-claims has long been applied to tort claims. That issue is not in question here.

The relevant portion of § 43-2-350(b) states that “any creditor entitled to actual notice as prescribed in section 43-2-61 must be allowed 30 days after notice within which to present the claim” in order to prevent the claim from being barred. (Emphasis added.) The entitlement to which § 43-2-350(b) refers is expressly tied to § 43-2-61, which provides the manner of giving notice when notice is required by § 43-2-60. Section 43-2-60 clearly imposes a duty upon the personal representative of an estate to “notify[ ] all persons having claims against the estate” of the appointment of the personal representative in accordance with the provisions of § 43-2-61. Section 43-2-61(1) states that the personal representative must provide notice as required by § 43-2-60, by first-class mail addressed to their last known address or by other mechanism reasonably calculated to provide actual notice to claimants who are known or who are reasonably ascertainable, within six months from the grant of letters of administration.

It is undisputed that the administrator did not provide first-class notice by mail in this case; therefore, that provision of the statute does not apply. The remaining alternative of “other mechanism reasonably calculated to provide actual notice” does not apply in this case to trigger the running of the 30-day period in § 43-2-350(b). The legislature’s use of the passive voice in § 43-2-61 in the context of “calculated” compels the conclusion that the personal representative must be the entity doing the calculating, and, therefore, the fortuitous act of a third party who gives notice falls beyond the contemplation of the statute. Thus, the notice to which reasonably ascertainable creditors are entitled, which triggers the 30-day savings provision, clearly refers to actual notice from the personal representative. Because the Sullivants as reasonably ascertainable creditors were entitled to actual notice from the personal representative, their receipt of notice from an unaffiliated third party — their attorney — did not trigger the running of the 30-day period; therefore, their claims are not barred by the statute of nonclaims.

C. Collateral Attack

Alternatively, the administrator contends that the Sullivants cannot collaterally attack the order of the probate court settling the estate and discharging the administrator. Section 12-13-1 confers on the probate court jurisdiction over the administration of estates. Subsection (b) of that section states, in pertinent part:

“(b) The probate court shall have original and general jurisdiction over the following matters:
“(1) The probate of wills.
“(2) The granting of letters testamentary and of administration and the repeal or revocation of the same.
“(3) All controversies in relation to the right of executorship or of administration.
“(4) The settlement of accounts of executors and administrators.... ”

(Emphasis added.) As § 12-13-1 indicates, jurisdiction over the administration of an estate, including any claims against the estate by potential creditors, generally lies with the probate, not the circuit, court. Exceptions include § 12-11-41, Ala.Code 1975, permitting removal of an estate to the circuit court prior to final settlement, and § 12-11-60, Ala.Code 1975, authorizing the circuit court to correct errors of law or fact in the settlement of an estate within two years of final settlement. Section 12-11-41 is clearly inapplicable. The Sullivants did not rely on § 12-11-60 in their opposition to the administrator’s motion to dismiss, nor do they rely on § 12-11-60 on appeal. We therefore make no determination as to whether the Sullivants’ claims would have been properly before the circuit court under § 12-11-60.

The Sullivants brought their personal-injury action against the administrator in the circuit court after the probate court had entered an order of final settlement of the estate and had discharged the administrator from his duties. The administrator argued in the circuit court that the Sulli-vants’ personal-injury action was an impermissible collateral attack on the judgment of the probate court. The Sullivants contend on appeal that the probate court was without jurisdiction to enter an order of final settlement and discharge the administrator from his duties and that, therefore, the probate court’s judgment is void. However, the Sullivants never argued in their opposition to the administrator’s motion to dismiss in the circuit court that the probate court was without jurisdiction to enter a judgment settling the estate as to their claims because they never received notice of the appointment of the administrator and were never made parties to the proceedings in the probate court. In their response to the administrator’s motion to dismiss, the Sullivants, relying exclusively on Gaylor, supra, contended that they were entitled to “receive[ ] actual written notice of the opening of the estate by first class mail. Since [they] did not, [the Sulli-vants’] claims are not barred and the [administrator’s] Motion to Dismiss is due to be denied.”

As previously noted, Gaylor is distinguishable because in that case the contention as to lack of notice was raised before an order of final settlement had been entered by the probate court, and concerns over the availability of collateral attack were not at issue. The Sullivants’ argument as to the unavailability of the statute of nonclaims in reliance upon Gay-lor does not address the separate issue, which was not addressed in Gaylor, of the availability of a collateral attack on the final settlement of the probate court as a void judgment. This Court does not reach arguments never presented to the trial court. In Ex parte State Farm Mutual Automobile Insurance Co., 924 So.2d 706, 711 (Ala.2005), we stated:

“We note that ‘[a]ny grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered’ on appeal. Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 165 (Ala.2005). Thus, the judgment of the trial court cannot be reversed on this ground.”

(Footnote omitted.) See also Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). Because the Sullivants did not present to the circuit court their contention that the probate court’s judgment was void as to their claims because they did not receive notice of the appointment of the administrator, we do not reach the merits of the Sullivants’ contention that the probate court under the circumstances here presented was without jurisdiction to enter a judgment of final settlement of the estate.

IV. Conclusion

The Sullivants’ claims are not barred by the statute of nonclaims, § 43-2-350(b), providing that a creditor must file his or her claims within 30 days of receiving actual notice. Furthermore, because the Sulli-vants did not address in the circuit court the separate issue, unaddressed in Gaylor, of the availability of a collateral attack on the final settlement of the probate court as a void judgment, we do not reach that issue. Therefore, we affirm the judgment of the circuit court dismissing the Sulli-vants’ action against the administrator of the estate of Susan Toler Sullivan.

AFFIRMED.

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


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    STATE of Alabama v. BRANTLEY LAND, L.L.C., et al.
    1050668.
    Supreme Court of Alabama.
    June 29, 2007.

      Steven T. Speakman, deputy atty. gen., Auburn, for appellant.
    James D. McLaughlin, Auburn, for ap-pellees Brantley Land, L.L.C., and Links Crossing, L.L.C.
   MURDOCK, Justice.

The State of Alabama appeals from an order entered by the Lee Circuit Court in an action filed by the State seeking to condemn various parcels of land for use by the Alabama Department of Transportation (“ALDOT”). The action was filed against Brantley Land, L.L.C.; Tiger Crossing, an Alabama General Partnership; Eagle Management, L.L.C.; Redd Family Partnership, L.L.L.P.; Links Crossing, L.L.C.; Spirit of Auburn, Inc.; Oline Price, as revenue commissioner of Lee County; and unknown persons owning or having an interest in the land at issue. The State appeals from an order that was certified as final pursuant to Rule 54(b), Ala. R. Civ. P. We must dismiss the appeal, however, because the order does not meet the requirements to be eligible for certification under Rule 54(b).

In September 2004, the State filed an action in the Lee County Probate Court seeking to condemn the parcels of land at issue; the respective defendants either owned or had a lien on or other interest in the various parcels. The probate court entered an order partially granting and partially denying the State’s condemnation application, and it appointed commissioners to assess the compensation that was due the defendants for the property it had ordered condemned. In November 2004, after receiving the commissioners’ compensation report, the probate court entered an order of condemnation awarding the defendants $1,079,260. The State paid this amount into the probate court, and it appealed to the Lee Circuit Court for a trial de novo. See Ala.Code 1975, § 18-1A-283 (governing appeals from an order of condemnation) and § 18-1A-286 (governing appeals from an order denying an application for condemnation).

In March 2005, the State filed an amended complaint in the circuit court. In its complaint, the State alleged that the land it sought to condemn included several “strips of land” that “will be used for the expansion, improvement, widening, beautifying, and restoring” of Alabama Highway 29, also known as South College Street, in Auburn (“the land at issue”). The State sought fee-simple title to some of these “strips of land” and, as to the remaining land at issue, it sought “a right of way or temporary construction easement that will allow [the State] to complete its work on Highway 29.”

In response to the State’s amended complaint, several defendants filed an answer denying certain of the material allegations in the complaint, and alleging, among other things, that the State sought “to acquire both property or lands and interest, title, or rights broader and greater in scope than necessary for the purposes set out in the Amended Complaint.” The defendants further alleged that the State’s “decision ... to condemn the lands of the Defendants is arbitrary, capricious, and bears no relation to the health, safety, morals, or general welfare of the residents of the State of Alabama.”

The State filed a motion titled “Motion to Dismiss, Motion for Judgment on the Pleadings, or, in the Alternative, Motion for Summary Judgment,” arguing that it was entitled to a judgment as a matter of law on the issue whether the defendants could challenge the determination of AL-DOT as to the necessity of the taking at issue. The State contended that § 23-1-45, Ala.Code 1975, authorized “the Director of Transportation ... to acquire the rights-of-way deemed necessary by the State Department of Transportation for the construction of a state road, ... by the exercise of the right of eminent domain in condemnation proceedings” and that, in the absence of fraud or an abuse of discretion, ALDOT’s determination at to the necessity of taking a particular tract of land was not subject to judicial review.

After the State filed its motion, the parties submitted evidence and briefs to the circuit court as to the issue of the necessity of the taking. Thereafter, the circuit court held hearings on the issue and, in September 2005, it entered an order holding that as to certain portions of the land at issue the State’s proposed taking “was excessive and in part unnecessary.” The court concluded that “the State of Alabama can achieve the purposes set forth in the Complaint through a reduction in its fee simple taking and the granting of easements.” Thereafter, the trial court set the case for trial to determine the amount of compensation the State must pay for the partial condemnation the trial court had ordered.

The State filed a motion it styled as a “Rule 59 Motion to Alter, Amend, or Vacate the Judgment, or in the Alternative, Motion for a New Trial.” The State later filed an “Amendment/Supplement” to its motion, in which it requested that the circuit court clarify certain aspects of the September 2005 order before the time for ruling on its motion would, according to the State, expire by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.

In October 2005, the State filed a motion requesting that the circuit court enter a certification pursuant to Rule 5, Ala. R.App. P., so the State might request permission to appeal as to four issues it alleged were explicitly or implicitly addressed in the September 2005 order. Contemporaneously with the filing of its motion for Rule 5 certification, the State also filed a motion requesting that the circuit court certify the September 2005 order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

A few days after the State filed its Rule 5 and Rule 54(b) motions, the circuit court entered an order granting the State’s motion for a Rule 5 certification. Thereafter, several of the defendants filed an objection to the certification and requested that the circuit court reconsider whether Rule 5 certification was appropriate.

In November 2005, the State filed a motion requesting that the circuit court enter an order vacating its Rule 5 certification because, it said, the certification did not comply with the requirements contained in Rule 5, in that the presumptively reasonable period within which the State could file a petition for permission to appeal had expired and the State desired to make both factual and legal arguments on appeal that might not be permitted in a Rule 5 permissive appeal. Thereafter the circuit court entered an order vacating its Rule 5 certification.

In January 2006, the circuit court entered a new order, which vacated the September 2005 order. In part, the January 2006 order states: “[T]he Court hereby denies the [State’s] Motion for Summary Judgment on the Issue of Necessity and the [State’s] Right to Condemn.” The order also states that the State’s proposed taking of certain portions of the land at issue “was excessive and in part unnecessary,” that the State had abused its discretion, and that “the State of Alabama can achieve the purposes set forth in the Amended Complaint through a reduction in its fee simple taking and the granting of easements.” The circuit court granted the State a fee-simple interest as to certain portions of the land at issue, and, as to the remainder of the land at issue, it granted the State a permanent easement for certain purposes. The January 2006 order did not purport to address the issue of what compensation was due the defendants for the State’s takings.- The circuit court entered a Rule 54(b) certification as to its January 2006 order, and the State appealed.

The State raises several issues regarding whether the circuit court erred when it determined that the State was entitled to less than fee-simple title to the parcels of land at issue. As the defendants have correctly argued in their appellate brief, however, this Court cannot address the merits of the State’s arguments because the circuit court erred in directing the entry of a final judgment under Rule 54(b). We therefore must dismiss the State’s appeal for want of jurisdiction.

Rule 54(b), Ala. R. Civ. P., provides, in pertinent part:

“When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

(Emphasis added.)

In James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), this Court stated:

“Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) ‘confers appellate jurisdiction over an order of judgment only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties” ’ (emphasis in Tanner)).”

713 So.2d at 941. As the James Court further stated, “ ‘[o]nly & fully adjudicated whole claim against a party may be certified under Rule 54(b).’ ” 713 So.2d at 942 (quoting Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir.1987) (emphasis in Sidag)). Similarly, in Precision American Corp. v. Leasing Service Corp., 505 So.2d 380, 381 (Ala.1987), this Court held that the partial summary judgment at issue in that case did not “completely dispose[ ] of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim.”

The State’s condemnation action includes condemnation claims against several defendants as to their interests in several parcels of land. As to each defendant who owns or has an interest in one of the parcels at issue, the January 2006 order either purports to award the State fee-simple title to that defendant’s land or purports to award the State a permanent easement over that defendant’s land. The January 2006 order does not purport to assess the damages or compensation the State must pay any of the defendants for the interest awarded. The circuit court specifically reserved that issue for trial.

In McGowin Investment Co. v. Johnstone, 291 Ala. 714, 287 So.2d 835 (1973), this Court dismissed as premature an appeal from an order granting a condemnation application but reserving the issue of damages for later proceedings. In part, McGowin states:

“This court has been unable to find any Alabama condemnation case in which an appeal was allowed prior to assessment of damages. Additionally, no case of any nature in this' state has been cited to this court in which an appeal was permitted prior to an adjudication by the trial court on the issue of damages.
“Moreover, the provisions of Title 19, § 24, Code of Alabama 1940, providing for a deposit or payment into court of the damages assessed in condemnation cases in order to secure entry pending appeal, as well as the provisions of Title 19, § 25, providing for payment of damages within six months after appeal is determined, together seem clearly to indicate that the legislature intended that judgments in condemnation cases become final only after assessment of damages.”

291 Ala. at 715-16, 287 So.2d at 836-37; see also Ala.Code 1975, §§ 18-1A-288 and 18-1A-289 (current condemnation Code provisions governing appeals after the assessment of damages).

Moreover, in Tanner v. Alabama Power Co., 617 So.2d 656, 657 (Ala.1993), this Court stated that “the trial court, in granting [Alabama Power Company’s] application for condemnation without adjudicating the issue of damages, failed to ‘completely dispose’ of [Alabama Power Company’s] claim.” The Court concluded that “the trial court’s attempted Rule 54(b) certification was ineffective to transform its condemnation order into a final judgment. Consequently, we are compelled to dismiss the appeals as premature.” 617 So.2d at 657. See Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (“Where the amount of damages is an issue, as here, the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.”). See also Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001) (“Damages are only one portion of a claim to vindicate a legal right, even though the damages claimed may consist of several elements.”); Ex parte Simmons, 791 So.2d 371, 381 (Ala.2000) (“Rule 54(b) applies only to entire claims, not to orders relating to the recoverability of some, but not all, of the damages a party may be seeking as the result of a claim.”); and Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999) (holding that the Rule 54(b) certification at issue was ineffective where the order “addressed only the question of what species of damages Haynes might recover if he succeeded at trial on one of his substantive claims”).

Like the orders at issue in McGowin and Tanner, the January 2006 order in the present case did not purport to award compensation to any of the defendants for the interest in the property awarded the State. In an effort to distinguish McGowin and Tanner, however, the State argues that those cases involved premature appeals from granted condemnation petitions, while the present case involves

“an appeal of the denial of a portion of the State’s condemnation claim. To the extent that the Trial Court denied a portion of the State’s claim, there will be no jury trial on just compensation as to the denied claim. Thus, to the extent that it denies the State’s condemnation, the Trial Court’s Amended Order is final, and there are no other proceedings forthcoming in connection with said denial.”

The State cites no legal authority for the proposition that an order condemning a lesser interest in a defendant’s land than that which the State sought in its complaint, but that refrains from making a corresponding award of compensation required by law for the interest awarded, is an order that “completely dispose[s] of one ... claim[ ].” James, 713 So.2d at 941. We think it evident that it is not. That is, we are clear to the conclusion that the trial court’s January 2006 order does not present us with a “fully adjudicated whole claim,” id., and that, therefore, the trial court erred in directing the entry of a final judgment as to that order.

In light of the foregoing, we must dismiss the State’s appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

BOLIN, J., concurs in the result.

      . Charter Bank, which allegedly held a mortgage on some of the property at issue, also was named as a defendant. Charter Bank filed a disclaimer pursuant to Ala.Code 1975, § 18-1A-90, however, and the circuit court "removed” it as a defendant.

      . The record reflects a dispute among the parties as to whether certain of the defendants filed a valid inverse-condemnation counterclaim as to a portion of one parcel of the land at issue. The trial court has not adjudicated the counterclaim, and the counterclaim is not pertinent to our opinion in the present case.

      . Because no final judgment had been entered when the State filed the documents denominated as a "Rule 59” motion and an "Amendment/Supplement” to the "Rule 59 motion,” Rules 59 and 59.1 were inapplicable. The motion and amendment were, in fact, motions to reconsider the interlocutory September 2005 order.

      . After citing Precision American Corp., this Court in Scrushy v. Tucker, 955 So.2d 988 (Ala.2006), cited 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2657 (3d ed.1998), for the proposition that
      "when a claimant presents a number of legal theories, but will be permitted to recover only on one of them, the bases for recovery are mutually exclusive, or simply presented in the alternative, and plaintiff has only a single claim for relief for purposes of Rule 54(b). Similarly, when [a] plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of Rule 54] does not apply.”

        In Scrushy, this Court quoted with approval analysis provided by other authorities: " '[C]ertain points of agreement emerge from the cases. For instance, "[i]t is clear that a claimant who presents a number of alternative legal theories, but whose recovery is limited to only one of them, has only a single claim of relief for purposes of Rule 54(b).” Scrushy, 955 So.2d at 997 (quoting Samaad v. City of Dallas, 940 F.2d 925, 931 (5th Cir. 1991), quoting in turn Page v. Preisser, 585 F.2d 336, 339 (8th Cir.1978)); also, " '[t]he first rule [of thumb] is that "claims cannot be separate unless separate recovery is possible on each.Scrushy, 955 So.2d at 998 (quoting Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1108-09 (7th Cir.1984), quoting in turn Local P-171 Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir.1981)).


author: PARKER, Justice.

text:
    Ex parte Dwayne ATKINSON (In re: Clarence Heard and Janice Heard v. APV North America, Inc., et al.)
    1051437.
    Supreme Court of Alabama.
    June 29, 2007.

      Joseph H. Driver, Glenn E. Ireland, and Debra Hornbuckle of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    R. Rick DiGiorgio and Craig P. Nieden-thal of Cory, Watson, Crowder & DeGaris, P.C., Birmingham, for respondents.
   PARKER, Justice.

I. Background

Clarence Heard claims he was injured on November 23, 2002, in an accident involving a positive flow continuous fermen-ter manufactured by APV North America, Inc. (“the APV tank”), while he was employed by Ventura Foods, L.L.C. On November 22, 2004, Heard and his wife, Janice, sued APV North America and others, including several fictitiously named defendants, claiming that Clarence’s injury was caused by the negligence of the defendants in designing, manufacturing, and installing the APV tank.

On February 15, 2006, the Heards filed an amended complaint, substituting Dwayne Atkinson for one of the fictitiously named defendants, claiming that Atkinson was one of the employees or supervisors at Ventura Foods who had negligently installed the APV tank. Atkinson filed a motion asking the trial court to dismiss him as a defendant because, he says, the statute of limitations on the Heards’ claim had expired before the Heards named him as a defendant. The trial court denied Atkinson’s motion to dismiss, and Atkinson petitioned this Court for a writ of mandamus directing the trial court to dismiss him as a defendant.

II. Standard of Review

“ ‘A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998).”

Ex parte State Farm Mut. Auto. Ins. Co., 761 So.2d 1000, 1002 (Ala.2000). Furthermore, this Court has held that a petition for a writ of mandamus is the appropriate vehicle by which to challenge the trial court’s denial of a motion to dismiss or a motion for a summary judgment based on a statute-of-limitations defense when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” Ex parte Snow, 764 So.2d 531, 537 (Ala.1999). See also Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594 (Ala.2005).

III. Analysis

The Heards filed their complaint on November 22, 2004, one day before the two-year statute of limitations expired. Atkinson was not listed as a defendant at that time; rather, they listed several fictitiously named defendants and Atkinson was substituted for one of those fictitiously named defendants on February 15, 2006, well after the expiration of the two-year statute of limitations.

Rule 9(h), Ala. R. Civ. P., provides:

“When a party is ignorant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be designated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

This Court has stated on numerous occasions that in order to invoke the relation-back principles of Rule 9(h), that is, in order for the amended complaint with the defendant’s true name to relate back to the original complaint with the fictitious name, the plaintiff must establish (1) that the plaintiff was ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time the complaint was filed that the party subsequently named was in fact the party intended to be sued, Columbia Engineering International, Ltd. v. Espey, 429 So.2d 955 (Ala.1983); and (2) that the plaintiff used due diligence to discover the defendant’s true identity before filing the original complaint, Fulmer v. Clark Equipment Co., 654 So.2d 45 (Ala.1995).

Atkinson argues that Clarence Heard knew his identity and his involvement with the installation of the APV tank before the Heards filed their original complaint. He cites the following in the deposition given by Clarence Heard on December 6, 2005:

“Q. Was the tank already installed when you moved to the 79th Street facility?
“A. Yes.
“Q. Was the piping already hooked up to it?
“A. No.
“Q. Were there people that were working on the [APV] tank when you went there, when you moved to that facility?
“A. Yes.
“Q. Do you know who they were?
“A. I know Dwayne, Dwayne Atkinson. He was over it.
“Q. All right. Now I’m going to have to ask you to spell Dwayne’s last name if you can for me.
“A. I can’t spell it.
“Q. Can you pronounce it for me again?
“A. Dwayne Atkinson.
“Q. Atkinson?
“A. Yeah, I think that’s it.
“Q. Does Dwayne still work at Ventura [Foods]?
“A. Yes.
“Q. In what department does he work?
“A. He works in engineering.
“Q. Was he super — let me start over. From your observations, did it appear that Dewayne Atkinson was supervising the installation of the [APV] tank?
“A. Yes, he was.
“Q. For how many days or weeks did you observe Dwayne Atkinson and these contractors working on the [APV] tank and connecting pipes to it?
“A. I can’t recall.
“Q. Okay. What did you see them do with respect to the [APV] tank?
“A. I just saw them hanging pipes, that’s all.”

Atkinson argues that Heard’s answers in this deposition establish that Heard knew Atkinson’s true identity long before the Heards filed their original complaint and that, even if there is doubt as to whether he knew Atkinson’s exact name at that time, he knew enough about Atkinson that with due diligence he could have determined Atkinson’s true identity.

The Heards argue that Clarence Heard did not know Atkinson. They note that in Clarence’s answers to interrogatories filed on October 19, 2005, he identified Dwayne Atkinson as “Dewayne Adkins.” They also cite testimony of other employees of Ventura Foods who stated that they did not know Atkinson. This, however, does not demonstrate the ignorance of the defendant’s identity that Columbia Engineering and other cases require. Even if it did establish ignorance, it falls far short of establishing that the Heards could not have learned Atkinson’s true name with due diligence, as Fulmer requires. Certainly, if they knew that someone with a name similar to “Dewayne Adkins” worked as a supervisor for Ventura Foods, with due diligence they could have learned Atkinson’s true identity.

The Heards also argue that Atkinson has failed to demonstrate that he has suffered any prejudice from their failure to name him as a party in the earlier complaint, because, according to the Heards, he was aware of his participation in the events underlying their action. However, the cases cited by the Heards do not support their position. In Denney v. Serio, 446 So.2d 7 (Ala.1984), Denney was allowed to amend her pleading by substituting Serio as a defendant for one of the fictitiously named defendants even though the statute of limitations had expired, because the defendant had suffered no substantial prejudice resulting from her failure to name him in the original complaint. However, Denney had clearly established that she had no knowledge of Serio’s identity at the time she filed her complaint. Likewise, in Wallace v. Doege, 484 So.2d 404 (Ala.1986), Doege was allowed to name Wallace as a defendant in place of the fictitiously named party even though the statute of limitations had expired; however, like Denney, Doege had established that she had no knowledge of Wallace’s identity when she filed her original complaint. In each of these cases, the question of the prejudicial effect on the named defendant arises only after the plaintiff shows ignorance of the defendant’s identity at the time of filing the original complaint. Even if the plaintiff can establish this lack of knowledge, however, the court will not allow the substitution if the plaintiff has inordinately delayed in amending the complaint and if the defendant is prejudiced by the plaintiffs delay. In this case, the Heards have failed to establish that they were ignorant of Atkinson’s identity, and they have failed to establish that they could not have learned his identity through due diligence before they filed their original complaint. Therefore, we do not reach the issue of any prejudice to Atkinson caused by allowing the Heards to amend their complaint to add him as a named defendant.

TV. Conclusion

Atkinson has established that the Heards were not ignorant of his identity when they filed their original complaint. Therefore, the Heards’ amended complaint does not relate back to their original complaint; it is therefore time-barred as it relates to Atkinson.

Accordingly, the trial court exceeded its discretion in denying Atkinson’s motion to dismiss. This Court therefore grants Atkinson’s petition for the writ of mandamus and directs the trial court to dismiss Atkinson as a defendant in this case.

PETITION GRANTED; WRIT ISSUED.

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


author: PER CURIAM. COBB, Chief Justice

text:
    Keri Adrienne ROBERTS v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.
    1050616.
    Supreme Court of Alabama.
    June 29, 2007.
    R. Edward Massey of Clay, Massey & Associates, P.C., Mobile, for appellant.
    Edward B. McDonough, Jr., and Deena R. Tyler, Mobile, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P., and Lambert v. Coregis Ins. Co., 950 So.2d 1156 (Ala.2006).

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the majority’s decision to affirm the summary judgment in favor of American National Property and Casualty Company. I believe that a jury question exists as to whether Keri Adrienne Roberts was “occupying” a vehicle, as that term is defined by the insurance policy covering the vehicle, at the time she sustained her injuries.

On November 21, 2001, Roberts was a passenger in a Ford Escort automobile owned by Roberts’s mother and driven by Roberts’s sister, Heather. Carrie Sells, a friend of Roberts’s, was also a passenger in the Escort. As they traveled northbound on Lott Road in Mobile County they were behind a vehicle being operated by Eric Flint. They noticed that Flint’s vehicle was swerving on the roadway, so they slowed to allow a safe distance between the Escort and Flint’s vehicle. After they had followed Flint’s vehicle for approximately one to two miles, Flint veered into the southbound lane and struck an oncoming vehicle. Although the Escort was traveling three to four car lengths behind Flint’s vehicle, Heather, in an effort to avoid hitting the vehicle Flint had struck, which was spinning toward the Escort, drove the Escort into the ditch to the right of the lane in which she was traveling. The Escort did not make contact with either vehicle involved in the collision, and Roberts was not injured when Heather drove the Escort into the ditch.

After determining that no one in the Escort was injured, Roberts, Heather, and Sellers got out of the Escort.' Heather and Sellers walked to the car that was struck by Flint’s vehicle to assist the driver, and Roberts walked to Flint’s vehicle to assist Flint. Flint’s vehicle was located in the roadway on the opposite side of the road and approximately two to three car lengths down the road from the Escort. Roberts opened the driver’s door of Flint’s vehicle and took the keys out of the ignition. She tried to converse with Flint, but Flint was incoherent; he was swaying back and forth. Roberts had to hold the door open while she cheeked on Flint because the door would not stay open on its own. After she had stood next to Flint’s vehicle for approximately two to three minutes, Roberts asked Heather to get Roberts’s cell phone from the Escort so they could call emergency 911. As Roberts was telling Heather to get the cell phone, she was struck by an automobile driven by Karen Ann Vickers.

Roberts, who was eight months pregnant, was transported from the accident scene by helicopter to the University of South Alabama Medical Center, where she was treated for her injuries. Two days later, on November 23, 2001, she delivered; the child was stillborn.

On November 14, 2003, Roberts sued Vickers, Flint, and American National in the Mobile Circuit Court. American National insured both the vehicle Roberts owned as well as the Escort in which she was a passenger on November 21, 2001. In her original complaint, Roberts sought benefits under the uninsured-motorist coverage relating to the American National policy covering her vehicle. After Roberts filed her complaint, American National settled with Roberts and tendered the policy limits for uninsured-motorist benefits under the policy covering Roberts’s vehicle, plus expenses and reimbursements. Roberts and American National filed a joint stipulation for dismissal of American National as a defendant on February 2, 2004.

On February 19, 2004, Roberts filed an amended complaint, naming American National as a defendant and seeking uninsured-motorist coverage under the American National policy covering the Escort. That policy contains the following provision:

“PART IV — UNINSURED MOTORIST
“COVERAGE J — UNINSURED MOTORIST COVERAGE
“We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle. The bodily injury must be caused by accident and result from the ownership, maintenance, or use of the vehicle.... ”

The policy provides the following definition for “insured person”:

“ ‘Insured person’ means:
“(a) you or a relative;[]
“(b) any other person while occupying your insured car if such use is with the scope of your permission;.... ”

Likewise, the policy states: “ ‘Occupying’ means in, on, getting into, or out of.”

On August 17, 2005, American National moved the trial court for a summary judgment as to the claim asserted against it in Roberts’s amended complaint, which the trial court granted on January 10, 2006. Roberts filed her appeal with this Court on February 13, 2006. On August 7, 2006, this Court remanded the case for the trial court to enter a Rule 54(b), Ala. R. Civ. P., certification, making the judgment final. The appeal was returned to this Court on August 28, 2006.

On appeal, Roberts argues that the trial court erred in entering a summary judgment in favor of American National because, she says, the trial court incorrectly held that Roberts was not “occupying” the Escort when she sustained her injuries, as that term is defined by the insurance policy. Specifically, Roberts argues that under the terms of the policy she was “occupying” the Escort when she was struck by Vickers’s automobile, even though she was outside the vehicle and standing in the roadway alongside Flint’s vehicle.

In construing terms in an insurance contract, this Court must be mindful of the principle that “[a] contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Ambiguous provisions of an insurance policy will be construed most strongly against the insurer and in favor of the insured.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 695 (Ala.2001).

To support her argument that she was “occupying” the Escort when she was struck by Vickers’s vehicle, Roberts presents a grammatical argument. She cites Oscar W. Larson, Co. v. United Capitol Insurance Co., 64 F.3d 1010, 1013 (6th Cir.1995), for the rule that “[i]n a sequence separated by commas, a modifier runs to the end of the phrase, or until the next comma.” Thus, she contends, “getting” modifies only “into” in the definition of “occupying” in the policy and not “out of.” She cites Pennington v. Ohio Casualty Insurance Co., 63 Ohio App.3d 527, 579 N.E.2d 507 (1989), in which the Court of Appeals of Ohio was faced with a question involving a policy that defined “occupying” as “ ‘meanfing] in, upon, getting in, on, out or off.’ ” 63 Ohio App.3d at 530, 579 N.E.2d at 508. In Pennington, the Court of Appeals of Ohio stated:

“If this definition [of ‘occupying’] is taken literally, ‘occupying’ means anywhere ‘out’ or ‘off the vehicle, as the word ‘getting’ does not modify either of these two words, but only the word ‘in.’ There is no conjunction before ‘getting in’ as there would be required for the word ‘getting’ to modify ‘out,’ ‘on,’ and ‘off as well as ‘in.’ Accordingly, a person ‘out,’ or ‘off of the vehicle need not be ‘getting’ in or ‘getting’ out or ‘getting’ off, but is within the policy definition of ‘occupying’ when he is ‘out’ or ‘off of the vehicle so long as there is a reasonable relationship to the vehicle at the time. The relationship here would be leaving the vehicle.”

63 Ohio App.3d at 531, 579 N.E.2d at 509.

I am not persuaded by Roberts’s argument. Roberts’s interpretation of the term “occupying” is limitless; it would allow coverage for an individual who was walking to and from the insured vehicle even if the vehicle were miles away. This is precisely the “strained or twisted reasoning” this Court in Twin City Fire Insurance Co., supra, counseled against using to create an ambiguity in an insurance policy. 817 So.2d at 692. Considering the word “occupying” “in the context of all other provisions,” 817 So.2d at 691, I believe the intent of the contracting parties to this insurance policy was to provide coverage to an individual getting into or out of a vehicle.

In its summary-judgment order, the trial court cited this Court’s decision in Cook v. Aetna Insurance Co., 661 So.2d 1169 (Ala.1995). In Cook, this Court was called upon to construe the meaning of the term “occupying” in the context of an uninsured-motorist provision. In Cook, the policy defined “occupying” as “ ‘in, upon, getting in, on, out or off.’ ” 661 So.2d at 1171. Cook, an inmate at the Demopolis city jail, was allowed to work daily as a welder for a local company through a work-release program. Each day he walked across the street to a convenience store to get coffee for his vacuum bottle before the owner of the company arrived to take him to his welding job. On the morning in question, he had walked across the street to get coffee but had left his jacket and lunch box in the jail. After leaving the convenience store, Cook realized that the owner’s vehicle was idling in the parking area in front of the jail. When he was approximately one foot from the owner’s vehicle, he was struck by another vehicle. His lunch box and jacket were still in the jail. Cook sued the driver of the vehicle that hit him and the insurance company that insured the welding company, seeking damages under the uninsured-motorist provision of the policy covering the vehicle belonging to the welding company. Viewing all the facts in Cook’s favor, this Court concluded that he was not “getting in” the vehicle at the time he was struck by another vehicle. This Court in Cook relied on Testone v. Allstate Insurance Co., 165 Conn. 126, 328 A.2d 686 (1973), in which the Connecticut Supreme Court held that the act of approaching the door of an automobile with the intent to enter the vehicle is not equivalent to entering the automobile. This Court stated:

“While we do not believe that Alabama should adopt a rigid requirement of physical contact, we agree with the authorities cited above that the act of ‘getting in’ or entering a vehicle must be distinguished from approaching the vehicle, as well as from the act of preparing to enter the vehicle.”

661 So.2d at 1173.

The best evidence in Cook’s favor showed him at least a foot away from the owner’s vehicle, and it was clear that he was not approaching the vehicle to get in it. Instead, he would have first had to enter the city jail to retrieve his lunch box and jacket.

In its order, the trial court cited only Cook in support of its conclusion that the definition of “occupying” in the American National policy was unambiguous and that Roberts was not occupying the Escort when she was struck by Vickers’s vehicle. Given that Cook addressed the question of the meaning of the term “occupying” as it related to getting into a vehicle, I do not believe it is determinative of the issue presented to this Court.

This Court’s decision in Lambert v. Coregis Insurance Co., 950 So.2d 1156 (Ala.2006), is more germane to the question of how the term “occupying” should be construed in this case. In Lambert, an employee was standing between his company vehicle and another vehicle owned by his employer. An oncoming vehicle swerved off the road and hit the employee. The employee became entangled in the side mirror of the vehicle that had struck him, and he was dragged several feet until he hit the bumper of his company vehicle, at which point he rolled underneath the company vehicle. The employee sued the insurer of his company vehicle seeking un-derinsured-motorist (“UM”) coverage. The policy defined an insured for UM purposes as “ ‘[ajnyone else “occupying” a covered “auto” or a temporary substitute of a covered “auto.” ’ ” 905 So.2d at 1159. The policy also defined “occupying” as “ ‘in, upon, getting in, on, out or off.’ ” 950 So.2d at 1159. In its analysis, the Court stated:

“It should be noted at the outset that the word ‘getting’ appears to modify the prepositions ‘in, on, out, or off in the policy provision defining ‘occupying’ because the policy could not possibly cover everyone who was ‘out’ or ‘off the vehicle. See Rohlman v. Hawkeye-Sec. Ins. Co., 207 Mich.App. 344, 351, 526 N.W.2d 183, 186 (1994) (concluding that ‘the parties could not realistically have intended that any stranger who is injured in an accident involving the covered vehicle and an uninsured motorist would be occupying the covered auto if it could only be shown that the stranger was somewhere “off’ the vehicle, or “out” of the vehicle’).”

Lambert, 950 So.2d at 1160. Therefore, here, as in Lambert, the prepositions “into” and “out of’ both describe the word “getting” in the definition of “occupying” in the policy covering the Escort.

Although both Cook and Lambert provide some guidance in this matter, both are easily distinguishable from the case presently before us. In Cook, the inmate never “occupied” the vehicle. Similarly in Lambert, the employee parked his vehicle some three and a half hours before the accident occurred and had only lifted a jug of water out of the vehicle immediately preceding the accident.

As this Court noted in Lambert, “Alabama has not adopted a specific test under which to examine the phrase ‘in, upon, getting in, on, out or off in order to determine whether a person is ‘occupying’ a vehicle in the context of the insurance agreement at issue in the case.” Lambert, 950 So.2d at 1160. Other jurisdictions, however, have adopted various tests to determine whether an individual was “occupying” a vehicle in the context of an insurance policy. “The majority of jurisdictions hold that the meaning of the term ‘occupying’ must be determined on a case-by-case basis, depending on the facts of the accident and the use of the vehicle, and that there must always be some causal connection between the injuries and the use of the vehicle.” 950 So.2d at 1156.

Addressing a similar situation, the Supreme Judicial Court of Maine concluded that uninsured-motorist coverage extended to an individual who was struck by another vehicle while that individual was not in or in proximity to the insured vehicle. In Genthner v. Progressive Casualty Insurance Co., 681 A.2d 479 (Me.1996), an automobile was rear-ended on a bridge by a truck. The driver of the automobile pulled his vehicle to the side of the road after crossing the bridge while the truck remained idling on the bridge. Two of the passengers of the automobile got out of the automobile and walked approximately 100 yards toward the truck to get the license number of the truck. As they neared the truck, the driver “revved” the engine of the truck and then “floored it” across the bridge, swerving toward the passengers as he approached. The truck struck one of the passengers, causing his injuries. The truck sped away and was never identified. Like the policy that is the subject in this case, the policy there provided uninsured-motorist coverage for the vehicle in which the injured individual had been a passenger and defined “occupying” as “‘in, on, getting into, out of or off.’ ” 681 A.2d at 480. The Supreme Judicial Court of Maine held that “[a]n insured carefully-reading the policy language could not determine whether the plaintiffs claim is covered.” 681 A.2d at 480. The Genthner Court further held:

“A reasonable reading of the policy would include Genthner’s claim. He was a passenger in the insured vehicle at the time of the collision. But for the collision, he would have remained in the car. His efforts to assist the driver in securing the license number of the other vehicle involved only a temporary interruption of the trip and was directly and reasonably related to the operation and use of the insured vehicle.”

681 A.2d at 482. Similarly, the facts in this case support an inference that but for Flint’s vehicle colliding with, the oncoming vehicle causing the driver of the vehicle in which Roberts was a passenger to swerve into the ditch, Roberts would have remained in the ear. It was both reasonable and foreseeable that Roberts would get out of the vehicle to assist Flint, and her actions “involved only a temporary interruption of the trip that was directly and reasonably related to the operation and use of the insured vehicle.”

Given the foregoing, I am of the opinion that although the meaning of “occupying” may be clear in the abstract, it becomes ambiguous when applied to the facts of this case. The trier of fact should determine whether, given the facts of the accident and the use of the vehicle, there was a causal relation between the injuries and the use of the vehicle so that Roberts was “occupying” the vehicle when she was injured. I would reverse the summary judgment for American National and remand this case to the trial court for further proceedings; therefore, I dissent.

      . "Relative” is defined in the policy as "a person living with you and related to you by blood, marriage, or adoption, including your ward or foster child, provided neither the relative nor the relative’s spouse owns, in whole or in part, a car.” Roberts testified in her deposition that she was not residing with her mother at the time of the accident and concedes that she was not a “relative” as that term is defined by the policy.

      . See, e.g., Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984) (adopting a four-pronged test requiring (1) that “there [be] a causal relation or connection between the injury and the use of the insured vehicle”; (2) that “the person asserting the coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it”; (3) that "the person must be vehicle oriented rather than highway or sidewalk oriented at the time”; and (4) that "the person must also be engaged in a transaction essential to the use of the vehicle at the time”); Kentucky Farm Bureau Mut. Ins. Co. v. McKinney, 831 S.W.2d 164 (Ky.1992) (adopting same test); Tata v. Nichols, 848 S.W.2d 649 (Tenn.1993) (adopting same test); Roden v. General Cas. Co. of Wisconsin, 671 N.W.2d 622 (S.D.2003) (adopting same test); General Accident Ins. Co. of America v. Olivier, 574 A.2d 1240 (R.I.1990) (adopting same test); Butzberger v. Foster, 151 Wash.2d 396, 89 P.3d 689 (2004) (adopting a three-pronged test requiring (1) that there be a causal relationship or connection between the injury and the use of the insured vehicle; (2) that the person asserting the coverage must be in reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it; and (3) that the person must also be engaged in a transaction essential to the use of the vehicle); D’Amour v. Amica Mut. Ins. Co., 153 N.H. 170, 891 A.2d 534 (2005) (adopting the "vehicle-orientation standard”); and Simpson v. United States Fid. & Guar. Co., 562 N.W.2d 627, 631 (Iowa 1997) (holding that uninsured-motorist coverage extended to anyone “in close proximity to the [covered vehicle]” and "engaged in an activity relating to the use of the [covered vehicle]”).

      . See § 6-5-332, Ala.Code 1975, “Good Samaritan Rule,” and Beasley v. MacDonald Eng’g Co., 287 Ala. 189, 194, 249 So.2d 844, 847 (1971) (“[Good Samaritan] statutes immunize volunteers acting gratuitously from any common-law liability for their acts or omissions at the scene of accidents or in emergencies.”).


author: MOORE, Judge.

text:
    Cassandra J. CUPP v. Zachary K. CUPP.
    2051046.
    Court of Civil Appeals of Alabama.
    May 11, 2007.
    Rehearing Denied July 6, 2007.

      Donna C. Crooks, Daleville, for appellant.
    Warren Rowe, Enterprise, for appellee.
   MOORE, Judge.

Cassandra J. Cupp (“the mother”) appeals from a judgment entered by the Coffee Circuit Court awarding custody of Alexandria Paige Cupp (“the child”) to Zachary K. Cupp (“the father”). We reverse and remand.

Father’s Motion to Dismiss

Before we address the merits of the mother’s appeal, we must address the father’s motion to dismiss the appeal. The father contends that the mother’s appeal is due to be dismissed because the appeal is untimely; however, he incorrectly asserts that the mother’s time for taking an appeal ran from the date the trial judge signed the judgment.

Rule 4(a)(1), Ala. R.App. P., provides: “[T]he notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.” (Emphasis added.) The entry of judgment occurs when the circuit clerk files the judgment. Radenhausen v. Doss, 819 So.2d 616, 618-19 (Ala.2001).

The judgment from which the mother appeals was signed by the judge on July 31, 2005, but it was not filed by the clerk of the trial court until August 4, 2006. The mother filed her notice of appeal on September 15, 2006, 42 days after the entry of the trial court’s judgment. Therefore, the mother’s notice of appeal was timely filed, and we deny the father’s motion to dismiss.

Mother’s Appeal

On June 16, 2003, the trial court divorced the mother and the father. The parties were awarded joint legal custody of their child, and the mother was awarded primary physical custody, with the father having specified visitation rights. On October 5, 2004, the court modified the divorce judgment, stating as follows:

“Custody:
“The parties shall share Joint Custody of [the] minor child ... born June 3, 2001 with the Mother having Primary Physical Custody.
“Visitation:
“1. The Father shall have the following rights of visitation until such time as the minor child begins kindergarten:
“a) In Odd-numbered years, he will have the minor child visit with him the months of January, February, June, July, October and November,
“b) In Even-numbered years, the minor child will visit with the Father from January, February, June 10th through July 30th, September and December.
“2. The Mother shall have unlimited access and visitation with the minor child during the minor child’s visitation with the Father at her own expense.
“3. There shall be an exception this year (2004) in that the Father, due to his prolonged absence from the child shall receive the months of November and December, November 1st through December 31st with the caveat that he shall spend one full day with the minor child in the state of Washington, in the Mother’s hometown, with both Mother and minor child, to allow the Father and child to familiarize themselves with each other before flying back to Alabama.
“4. He will forgo visitation with the minor child in the month of January in the year 2005 in consideration of receiving an extra month this year, 2004.
“5. The foregoing visitation shall continue until such time as the minor child enrolls into Kindergarten at which time visitation shall revert to the Court’s standard visitation schedule.”

On December 22, 2004, the father filed a petition to modify the October 5, 2004, judgment. He alleged that, since the entry of the October 5, 2004, judgment, there had been a material change in circumstances. The father also sought temporary custody of the child pending a final hearing on his petition.

On January 5, 2005, the trial court granted the father’s request for temporary custody pending the final hearing, and it awarded reasonable visitation rights to the mother pending the final hearing.

On January 18, 2005, the mother filed an answer to the father’s petition; she also counterclaimed for sole custody of the child. Also on January 18, 2005, the mother filed a motion to set aside the temporary-custody order. The father answered the mother’s counterclaim and responded to the mother’s motion to set aside the temporary-custody order on January 20, 2005.

The trial court held a final hearing on June 29, 2006, and it entered a judgment on August 4, 2006, in which it found:

“(a) [that] there has been a material change in circumstances since the prior [judgment], which said change affects the welfare of the minor child; (b) [that] it is now in the minor child’s best interest and welfare to modify the custody provisions as set out in the [October 5, 2004, judgment]; and (c) [that] a change in the custody provisions of the [October 5, 2004, judgment] will ‘materially promote’ the child’s welfare/best interests.”

The trial court awarded primary physical custody to the father and awarded the mother visitation rights; the parties retained joint legal custody of the child.

On appeal, the mother argues that the trial court failed to apply the standard for modification of custody set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), and that the father failed to meet his burden under McLendon. She also argues that the trial court improperly gave the father custodial preference due to his having had pendente lite custody of the child.

Because the mother had been awarded primary physical custody in the October 5, 2004, judgment, the McLendon standard is applicable to this case.

“In Ex parte McLendon, supra, our supreme court held that the proper standard to be applied in child-custody cases wherein a parent has either voluntarily forfeited custody or has lost custody due to a prior judgment is whether there has been a material change in circumstances since the prior judgment; whether a change in custody will materially promote the best interests of the child; and whether the benefits of the change in custody will more than offset the inherently disruptive effect caused by uprooting the child.”

Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004). “This standard ere-ates a presumption in favor of the party who has custody of the child at the time of the filing of the modification motion.” T.J.H. v. S.N.F., 960 So.2d 669 (Ala.2006).

The mother’s assertion that the trial court did not apply the McLendon standard is incorrect. In its judgment, the trial court found that a material change in circumstances had occurred and that a change in custody would materially promote the best interests of the child. We conclude, however, that the mother correctly argues that the father failed to meet his burden under McLendon. There is insufficient evidence in the record to support the trial court’s finding that a material change in circumstances that affected the best interests of the child had occurred since the entry of the October 5, 2004, judgment. See Hovater v. Hovater, 577 So.2d 461, 465 (Ala.Civ.App.1990).

Our review of the record reveals the following. After the divorce, the mother had resided in Washington and the father had resided in Alabama. On November 18, 2004, approximately six weeks after the October 5, 2004, judgment was entered, the mother left the child in Alabama with the father for the father’s first extended period of visitation. At approximately the same time, the mother relocated from Washington to North Carolina in order to better facilitate the new visitation schedule. Upon her arrival in North Carolina, the mother initially moved in with her brother and his wife and child. However, the mother testified that she had planned on moving into her own apartment before the father’s visitation period ended.

Approximately one month later, and less than three months after the entry of the October 5, 2004, judgment, the father filed his petition for modification. In his petition, he alleged that the mother, who had been living with her parents in Washington and had been purportedly going to school, had moved to North Carolina to live with her brother’s family in a two-bedroom, one-bathroom apartment. The father alleged that he had learned that the mother’s brother had received an eviction notice and that the mother would soon be without a home. The father also noted that the mother was not in school and was not employed. He alleged that he, on the other hand, was gainfully employed with a substantial income and had a three-bedroom, two-bathroom house where the child has her own room. The father noted that it would be dangerous to return the child to the mother because, he alleged, the child might become homeless.

The evidence presented at trial, however, did not support the father’s allegations. In fact, the evidence at trial showed that the mother had begun working full-time on December 15, 2004, before the father filed his petition for modification. Further, the mother’s brother had not been evicted from his apartment, and the mother actually moved into her own apartment in January 2005.

After a review of all the evidence in the record, there is insufficient evidence to show that “material changes that affect the child’s welfare ha[d] occurred.” Ex parte Martin, 961 So.2d 83 (Ala.2006). There is insufficient evidence to conclude that the mother’s move from Washington to North Carolina affected the child’s welfare so as to constitute a material change. During the pendency of the father’s petition, both the mother and the father had remarried, and both had had another child; however, there was insufficient evidence to indicate that either of the remarriages constituted a material change that affects the child’s welfare. Further, although the father’s income had increased and although he lives in a larger home than does the mother, there was no evidence to indicate that the mother could not sufficiently support the child. In fact, both she and her husband are employed full-time, and they live in a two-bedroom condominium.

There being insufficient evidence in the record to support a finding that a material change in circumstances that affected the child’s welfare had occurred, we conclude that the trial court exceeded its discretion in modifying the October 5, 2004, judgment. We therefore reverse the trial court’s judgment awarding custody to the father and remand this case to the trial court with instructions to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.

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


author: PITTMAN, Judge. BRYAN, Judge,

text:
    Robert Y. WILLS v. Eugena D. PHILBROOK (Wills).
    2050983.
    Court of Civil Appeals of Alabama.
    May 11, 2007.
    Rehearing Denied July 13, 2007.
    J.E. Sawyer, Jr., Enterprise, for appellant.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Rule 50, Ala. R. Civ. P.; § 30-3-169.4, Ala.Code 1975; § 30-3-169.3, Ala. Code 1975; § 30-3-168(a), Ala.Code 1975; Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992); Ex parte McLendon, 455 So.2d 863 (Ala.1984); Clements v. Clements, 906 So.2d 952 (Ala.Civ.App.2005); Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995); Newman v. State, 623 So.2d 1171, 1172 (Ala.Civ.App.1993); Conway v. Barron, 516 So.2d 679, 680 (Ala.Civ. App.1987); and Blase v. Blase, 419 So.2d 599, 601 (Ala.Civ.App.1982).

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN, J., concurs in the result, with •writing, which MOORE, J., joins.

BRYAN, Judge,

concurring in the result.

I concur to affirm the trial court’s, judgment. The divorce judgment awarded primary physical custody of the parties’ two minor children to Eugena D. Philbrook (“the mother”) and granted visitation to Robert Y. Wills (“the father”). After the divorce judgment was entered, the mother notified the father that she intended to move the children from Alabama to Alaska. On June 8, 2005, the father, pursuant to the Alabama Parent-Child Relationship Protection Act (“the Act”), codified at § 30-3-160 et seq., Ala.Code 1975, filed with the trial court (1) an objection to the mother’s moving the children to Alaska, and (2) a motion seeking a temporary restraining order prohibiting the mother from moving the children to Alaska. However, the trial court neither held a hearing regarding the father’s motion seeking a temporary restraining order nor ruled on that motion. The mother moved the children to Alaska on July 15, 2005. Subsequent to the mother’s moving the children to Alaska, the father sought primary physical custody of the children.

Approximately six months after the mother had moved the children to Alaska, on January 12, 2006, the trial court held a hearing, and, thereafter, it entered a judgment overruling the father’s objection to the mother’s moving the children to Alaska and denying the father’s claim seeking primary physical custody. The father then appealed to this court.

On appeal, the father argues, among other things, that the trial court erred (1) in failing to hear and rule on his motion seeking a temporary restraining order prohibiting the mother from moving the children to Alaska, and (2) in using the standard enunciated by the supreme court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), to determine whether to award the father primary physical custody of the children. I concur to affirm the trial court’s judgment as to the first issue — i.e., that the trial court erred in failing to hear and rule on the father’s motion seeking a temporary restraining order — because the father did not present that argument to the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). However, I note that the Act contemplates a timely adjudication of issues regarding the relocation of children, not a tardy one six months after the custodial parent has already unilaterally relocated the children. See § 30-3-169.2(b), Ala.Code 1975 (“The court may grant a temporary order permitting the change of principal residence of a child and providing for a revised schedule for temporary visitation with a child pending a final hearing....” (emphasis added)); and § 30-3-169, Ala.Code 1975 (“The person entitled to determine the principal residence of a child may change the principal residence of a child after providing notice as provided herein unless a person entitled to notice files a proceeding seeking a temporary or permanent order to prevent the change of principal residence of a child within SO days after receipt of such notice.” (emphasis added)).

In my opinion, the father likewise failed to preserve for appellate review his argument that the trial court erred in using the McLendon standard to determine whether to award him primary physical custody of the children. The only argument regarding the McLendon standard the father presented to the trial court was that the McLendon standard did not apply to the threshold determination whether the mother should be allowed to move the children to Alaska. The father did not argue to the trial court that, if the mother prevailed on that threshold determination, the McLendon standard should not apply to the subsequent determination whether the father should be awarded primary physical custody. Consequently, I concur to affirm the trial court’s judgment as to the second issue — i.e., that the trial court erred in using the McLendon standard to determine whether the father should be awarded primary physical custody — because the father also failed to present that argument to the trial court. See Andrews v. Merritt Oil Co., supra.

However, if the father had properly preserved his argument that the trial court erred in using the McLendon standard to determine whether to award the father primary physical custody, I would have voted, on the basis of that argument, to reverse the trial court’s denial of the father’s claim seeking primary physical custody of the children. In the no-opinion affirmance, this court cites Clements v. Clements, 906 So.2d 952 (Ala.Civ.App.2005), which this court followed in T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005). In Clements, this court held that the McLendon standard applies in cases in which the Act applies. As the rationale for that holding, this court stated that nothing in the Act preempts the application of the McLendon standard.

I concurred in Clements, and I concurred in T.B., which followed that holding in Clements. However, after further reflection, I have concluded that the holding in Clements is incorrect. I now agree with the following statements of Judge Mur-dock in his special writing in Toler v. Toler, 947 So.2d 416 (Ala.Civ.App.2006):

“Ex parte McLendon was decided by our Supreme Court in 1984. The Act was adopted in 2004. As such, the Act reflects a legislative policy choice to supplant the so-called McLendon presumption in specific types of eases.
“The legislature expressly states in the Act that the Act ‘promotes the general philosophy in this state that children need both parents, even after a divorce.’ See § 30-3-160 (emphasis added). Toward this end, the Act adopts a new presumption and new rules of decision, including those in §§ 30-3-169.3 and 30-3-169.4, obviously intended to discourage unnecessary relocations by custodial parents that would make the maintenance of relationships between a child and both of his or her parents less likely or less fully realized.
“In contrast to the view indicated in Clements, I believe there are differences in approach between the McLendon presumption and the presumption and rules of decision specified in the Act for cases in which the primary custodial parent seeks to relocate. Indeed, if the legislature did not intend to alter the presumption and rules of decision in such cases, I see no reason for it to have adopted the Act. See, e.g., Ex parte Ted’s Game Enters., 893 So.2d 376, 384 (Ala.2004) (the legislature is presumed not to have done a vain and useless thing).
“The ultimate objective in any custody case is to determine what custodial placement would be in the ‘best interests’ of the child. It was only toward that end that the McLendon standard was formulated by our Supreme Court as a guide for lower courts. In the search for a child’s best interests under the McLendon standard, a relocation of a child by the custodial parent is a factor in whether the McLendon standard is met. Under the Act — specifically § 30-3-169.4 — there is now a presumption as to relocation, namely, that it is not in a child’s best interests to undergo a relocation under certain circumstances.
“Moreover, § 30-3-169.3 enumerates 16 factors that a court is to consider in deciding whether a change of primary physical custody would be in a child’s best interests. The relationship of the relocating parent and the child is just part of the first one of those factors. See § 30 — 3—169.3(a)(1), Ala.Code 1975. The degree of disruption that would be occasioned by the change of custody is also but 1 of the 16 enumerated factors. See [§] 30 — 3—169.3(a)(7), Ala.Code 1975. Furthermore, unlike the manner in which disruption is addressed in the so-called McLendon standard, the Act now requires the trial court to compare the degree to which a change of the principal residence of the child will result in disruption for the child with the degree to which a modification of the custody of the child will result in disruption for the child. Id.
“To be sure, because the ultimate objective under both the McLendon standard and the Act is to determine the child’s best interests, and because the factors outlined in the Act should have been addressed in most cases decided under the McLendon standard, one might expect the outcome in many, if not most, cases will be no different under the Act than they would have been under the McLendon standard. To be equally sure, this will not be true in all cases. Obviously, the Act for the first time introduces an express presumption against relocation and imposes upon the custodial parent the burden of rebutting that presumption before the burden of proof then shifts to the noncustodial parent. In this and other respects, the Act clearly represents an effort on the part of our legislature to change the calculus by which courts address the issue of whether a parent who has previously been awarded the primary physical custody of a child should be allowed to maintain that custodial relationship in connection with changing the primary residence of the child.”

Toler, 947 So.2d at 424-25 (Murdock, J., concurring specially) (footnotes omitted).

The McLendon standard presumes that the child’s environment, which includes the child’s home, neighborhood, school, and playmates, will remain the same if the child remains in the custody of the party who was previously awarded custody. See McLendon, 455 So.2d at 865 (“‘[The McLendon standard] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood.’ ” (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976))). That presumption will often prove to be invalid, however, where the party who was previously awarded custody is attempting to move the child’s primary physical residence. For that reason, the Act, which applies when the party who was previously awarded custody is attempting to move the child’s principal residence, presumes that instability in the child’s environment will result if the child remains in the custody of the party who was previously awarded custody. See 30-3-169.4, Ala.Code 1975. Thus, application of the McLendon standard when the party who was previously awarded custody is attempting to move the child’s primary residence will result in a custody determination that is based upon a presumption that is in diametric opposition to the presumption of the Act.

MOORE, J., concurs.


author: BRYAN, Judge.

text:
    William Eugene BLYTHE v. Bennie O’Barr BLYTHE.
    2050926.
    Court of Civil Appeals of Alabama.
    June 29, 2007.
    Elizabeth Golson McGlaughn of McGlaughn & McGlaughn, L.L.C., Gadsden; and James D. Pruett, Gadsden, for appellant.
    Roy 0. McCord of McCord & Martin, Gadsden, for appellee.
   BRYAN, Judge.

William Eugene Blythe (“the husband”) appeals a judgment divorcing him from Bennie O’Barr Blythe (“the wife”). We dismiss the appeal.

On November 15, 2004, the wife sued the husband, seeking, among other things, a divorce, alimony, an equitable division of the parties’ marital assets, and an attorney’s fee. Answering, the husband denied the material allegations of the wife’s complaint. Thereafter, the action proceeded to trial.

Following the trial, the trial court, on July 25, 2005, entered a judgment titled “Final Decree of Divorce,” which divorced the parties. That judgment stated that the marital assets should be divided equally between the parties. However, instead of actually dividing the marital assets the trial court appointed a special master to submit a report listing the parties’ marital assets and their values and set a hearing date regarding the division of those assets.

The husband then moved the trial court to alter, amend, or vacate its July 25, 2005, judgment or, in the alternative, to grant the husband a new trial. The trial court then entered a judgment on June 28, 2006, that, among other things, denied that motion. On July 26, 2006, the trial court entered an order that states: “The Judgment dated June 28, 2006[,] is hereby deemed to be a final judgment for the purposes of appeal.”

Subsequently, the husband filed a pleading titled “Brief in Support of Defendant’s Motion for New Trial or[,] in the alternative!;,] to Alter, Amend, or Vacate the Final Decree of Divorce.” In that pleading, the husband requested that the trial court vacate its divorce judgment on the same grounds the husband had asserted previously.

On August 4, 2006, the trial court set aside its July 26, 2006, order and entered a new order that was identical to the July 26, 2006, order. The husband then appealed to this court.

As a threshold matter, we must first determine whether the husband appeals from a final judgment because, ordinarily, we cannot exercise jurisdiction over an appeal from a nonfinal judgment. See Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006); and Winecoff v. Compass Bank, 854 So.2d 611, 614 (Ala.Civ.App.2003). Although the July 25, 2005, judgment states that the marital property should be divided equally, it does not actually divide the marital property. Moreover, it does not adjudicate the wife’s claim for alimony. Consequently, the July 25, 2005, judgment is not a final judgment. Cf. Grubbs v. Grubbs, 729 So.2d 346 (Ala.Civ.App.1998) (concluding that a divorce judgment was nonfinal because, instead of actually dividing the parties’ personal property, it ordered one party to make two lists of the their personal property and awarded the other party the property identified on the list of his choosing); and McGill v. McGill, 888 So.2d 502, 505 (Ala.Civ.App.2004) (same); see also Edmonds Indus. Coatings, Inc. v. Lolley, 863 So.2d 1121, 1122 (Ala.Civ.App.2003) (“A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).”).

“The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean [v. Craig ], 557 So.2d [1249,] 1253 [ (Ala.1990) ].” Lolley, 863 So.2d at 1122. Although, in the case now before us, the trial court entered an order purporting to certify the June 28, 2006, order denying the husband’s post-judgment motion as a final judgment, we must determine whether that order was sufficient to satisfy the requirements of Rule 54(b).

In Schneider National Carriers, Inc. v. Tinney, 776 So.2d 753, 754 (Ala.2000), our supreme court held that a trial court had validly certified a judgment as final pursuant to Rule 54(b) by stating that the judgment was “ ‘expressly made a final judgment,”’ and citing Rule 54(b), thus implicitly incorporating the language of the rule into that judgment. However, in Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1061 (Ala.2006), the supreme court concluded that, although the trial court had stated that the judgment “ ‘resolves all controversies pending in this case with prejudice and is final in accordance with the Alabama Rules of Civil Procedure,’ ” the trial court’s failure either to cite Rule 54(b) or to quote the language of that rule rendered its purported Rule 54(b) certification invalid. Id. See also Marlow v. Waters, 858 So.2d 980 (Ala.Civ.App.2003) (concluding that the trial court had not validly certified the judgment as final pursuant to Rule 54(b) by stating that a party had 42 days to file a notice of appeal).

In the case now before us, the trial court’s order purporting to certify the judgment as final neither cited Rule 54(b) nor used the language of Rule 54(b). Thus, the purported 54(b) certification in the case now before us is analogous to the purported 54(b) certification in Hanner and, therefore, the June 28, 2006, order is not a validly certified final judgment. Because the husband appeals from a nonfinal judgment, we have no jurisdiction over his appeal and, therefore, must dismiss it. See Winecoff supra.

APPEAL DISMISSED.

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

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

      . The July 25, 2005, judgment also does not adjudicate the wife's claim for an attorney’s fee; however, the failure to dispose of that claim would not have rendered the judgment nonfinal if the judgment had disposed of the claims seeking a division of the marital property and alimony. See State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002) (“[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.”).

      . Rule 54(b), Ala. R. Civ. P., provides, in pertinent part:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

      . Even if the judgment had been validly certified as final pursuant to Rule 54(b), such a certification would have been inappropriate. See Peden v. Peden, 931 So.2d 721 (Ala.Civ. App.2005) (dismissing the appeal when certification of the divorce judgment pursuant to Rule 54(b) was inappropriate because the trial court had failed to adjudicate the division of the parties' marital debts and, therefore, had failed to divide of all the parties’ marital property).