author: BOLIN, Justice.

text:
    RUSSELL PETROLEUM, INC. v. CITY OF WETUMPKA, a municipal corporation.
    1041001.
    Supreme Court of Alabama.
    June 15, 2007.

      J. Doyle Fuller of Law Office of J. Doyle Fuller, P.C., Montgomery, for appellant.
    George B. Azar and Elizabeth C. Wible of Azar & Azar, L.L.C., Montgomery; and Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for appellee.
   BOLIN, Justice.

Russell Petroleum, Inc., appeals a judgment by the Elmore Circuit Court holding (1) that property on which Russell Petroleum operated a gasoline service station was validly annexed into the municipal limits of the City of Wetumpka (“the City”), pursuant to Act No. 2001-543, Ala. Acts 2001 (“the Act”), and (2) that, as a consequence of that annexation, Russell Petroleum owes the City for unpaid municipal business-license fees, gasoline taxes, sales taxes, and penalties. We affirm that part of the judgment that validated the annexation, but reverse the judgment insofar as it orders Russell Petroleum to remit to the City municipal sales taxes.

I. Facts and Procedural Background

Since 1999 Russell Petroleum has operated a convenience store and gasoline station on property along U.S. Highway 231 in Elmore County (“the business”). In 2000 the City passed an annexation ordinance that brought the business into the police jurisdiction of the City. The following year the legislature enacted the Act, expanding the municipal limits of the City by annexing several parcels of land, including the land on which the business was operated, that were formerly outside its boundaries (“the annexation”).

On the effective date of the annexation, the City had in effect business-licensing, municipal-gasoline-tax, and municipal-sales-tax regulations. Russell Petroleum did not apply for, or secure, a business license after the annexation. On August 6, 2002, the City sued Russell Petroleum to collect (1) unpaid business-license fees related to the operation of the business during the calendar years 2001 and 2002, and (2) gasoline taxes that Russell Petroleum did not remit to the City on retail sales of gasoline by the business.

Russell Petroleum denied that it was required to purchase a business license from the City or to remit any gasoline taxes. Russell Petroleum asserted in its answer to the City’s complaint that it owed no obligations to the City because, it argued, the annexation of the property on which the business is located was invalid. Russell Petroleum also filed a counterclaim asking the trial court to declare the Act unconstitutional and invalid. Among other claims, Russell Petroleum alleged in its counterclaim that the Act was invalid because, it argues, its proponents failed to comply with the requirement in § 11-42-6(b), Ala.Code 1975, that “a map showing what territory is to be legislatively annexed to ... [the municipality] [be] on file in the office of the judge of probate in the county ... wherein [the] territory is located.” Further, when Russell Petroleum filed its counterclaim, it interpleaded $36,534.68 into court and asked the trial court to direct “a cy pres refund ... of any taxes or penalties wrongfully, illegally or unconstitutionally collected.” According to Russell Petroleum’s counterclaim, the in-terpleaded funds represented “license fees and gasoline taxes for all periods of illegal assessment.”

In October 2002 the City moved the trial court to dismiss the counterclaim and order Russell Petroleum to pay the contested business-license fees and gasoline taxes. Stating that there appeared to be disputed facts concerning the City’s compliance with the Alabama Constitution or certain statutes in annexing the property into the municipal limits, the trial court denied that motion and set the City’s action for a bench trial on September 23, 2003. Before trial, Russell Petroleum filed an amended answer contesting the City’s right to collect taxes for the period in which the business was within the police jurisdiction of the City pursuant to municipal ordinance, but outside the municipal limits. When the trial commenced, the City relinquished its claim against Russell Petroleum for unpaid taxes during that period in which Russell Petroleum was operating in the police jurisdiction, and Russell Petroleum agreed not to challenge the ordinance that brought the business within the police jurisdiction. Consequently, the issues considered at trial were limited to (1) the City’s claim for unpaid business-license fees and gasoline taxes in the period after the property on which the business is located was annexed into the municipal limits of the City in 2001, and (2) Russell Petroleum’s claims challenging the constitutionality and validity of the Act.

At the September bench trial the court heard oral testimony and received evidence concerning the enactment of the Act; the subjects addressed included the notices of intent to introduce the Act that were published in the Wetumpka Herald, actions taken in the legislature relating to the passage of the bill that became the Act, and the use of a map prepared by the City that detailed the property to be annexed. Rejecting Russell Petroleum’s challenge to the Act, the trial court entered an order on October 1, 2003, which stated:

“This Court finds that the passage of [the Act] was proper and constitutionally valid. This Court thereby denies [Russell Petroleum’s] counterclaim. [Russell Petroleum’s] property is included on the property annexed by [the Act], Therefore, [Russell Petroleum] is responsible for payment of appreciable business license fees as well as collection and payment of appreciable taxes....
“The parties are hereby ordered to work together to have an audit performed to determine the exact amount of business license fees and taxes due to the City of Wetumpka in accordance with this order. This Court reserves jurisdiction to enter further orders to assure compliance with this order.”

Following that order, however, the parties were unable to resolve their dispute concerning the amounts allegedly owed by Russell Petroleum. Evidence indicated that the $36,534.68 amount that Russell Petroleum had paid into court related to its collection of sales taxes on retail purchases, not to business-license fees or gasoline taxes as it initially pleaded. By March 2004, Russell Petroleum was contesting the City’s right to collect sales taxes on retail transactions. Notwithstanding that dispute, by that time Russell Petroleum had collected approximately $78,000 in sales taxes after 2002.

In an effort to end the litigation, the City in June 2004 filed a motion for a summary judgment on all remaining issues. In support of that motion, the City presented evidence indicating that Russell Petroleum owed it the following sums for the period from January 1, 2002, through February 29, 2004:

1. $11,370.75 ($9,096.60 plus $2,274.15 in penalties) in business-license fees for the years 2002, 2003, and 2004;
2. $62,783.51 ($52,319.59 plus $10,463.92 in penalties) in municipal gasoline taxes; and
3. $90,274 ($78,249.82 plus $12,024.18 in penalties) in sales taxes.

On August 16, 2004, the trial court granted the City’s summary-judgment motion and issued its second order regarding Russell Petroleum’s obligations. In entering a final judgment for the City, the trial court found that “[sjales taxes were placed at issue in this case” and that Russell Petroleum owed the City “the amount of $164,428.26 for license fees, gas taxes, sales taxes, and penalties for the period from January 1, 2002, to February 29, 2004.... ” The trial court also ordered that the funds Russell Petroleum had paid into court be credited against its $164,428.26 liability and that it pay all gasoline taxes and sales taxes for the months March through July 2004 or be restrained from operating the business. Russell Petroleum timely filed this appeal following the trial court’s denial of its postjudgment motion to alter, amend, or vacate the final judgment.

II. Standard, of Review

The ore tenus standard of review applies with respect to the trial court’s findings. We have described that standard as follows:

“ ‘ “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” ’ ...
“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony, it has an opportunity to evaluate the demeanor and credibility of witnesses.” ... The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence....
“ ‘ “... [Tjhis Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence....”’
“... However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’...”

Robinson v. Evans, 959 So.2d 634, 637 (Ala.2006). When the trial court does not make any specific finding of fact on a matter pertinent to its judgment,

“this Court will assume that the trial judge made those findings necessary to support the judgment.... Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness and will not be reversed unless ‘found to be plainly and palpably wrong.’ ... ‘The trial court’s judgment in such a case will be affirmed, if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.’ ”

Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).

The well-established standard of review for a summary judgment applies to the trial court’s August 16, 2004, order granting the City’s June 2004 summary-judgment motion. That standard was stated in Prince v. Poole, 935 So.2d 431, 442 (Ala.2006):

“ ‘This Court’s review of a summary judgment is de novo. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P. In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce “substantial evidence” as to the existence of a genuine issue of material fact. Ala.Code 1975, § 12-21-12. “[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ ”

(Citations omitted.) Further, when reviewing a summary judgment, this Court resolves all reasonable doubts against the movant. Prowell v. Children’s Hosp. of Alabama, 949 So.2d 117, 126 (Ala.2006).

III. Analysis

Russell Petroleum makes the following two arguments in support of reversing the summary judgment: (1) that the annexation was invalid because, Russell Petroleum argues, the Act was not enacted in compliance with § ll-42-6(b), Ala.Code 1975; and (2) that the trial court did not have subject-matter jurisdiction to order Russell Petroleum to remit sales taxes.

A. Compliance with § ll-i.2-6(b)

Section 11 — 42—6, Ala.Code 1975, mandates certain procedural requirements when the legislature considers a local bill that proposes to change the territorial boundaries of a municipality. That statute provides:

“(a) Any bill introduced in the legislature which attempts to annex territory to a municipality ... shall contain an accurate description of the territory proposed to be annexed to ... such municipality together with a plat or map of such territory attached.... Copies of such map shall also be furnished to the judge of probate for the county ... where the territory proposed to be annexed to ... the municipality is located.
“(b) The publication of notice of intention to apply for any local law annexing territory to any municipality ... shall ... state that a map showing what territory is to be annexed to ... such municipality is on file in the office of the judge of probate in the county ... wherein such territory is located and that such map is open to the inspection of the public.”

§ 11-42-6, Ala.Code 1975 (emphasis supplied). The trial court found in its October 1, 2003, order that “the passage of the Act was proper”; “the map [showing the property to be annexed] was filed in the office of the judge of probate on March 1, 2001”; and “the notice was published as required by the guidelines set out in § ll-42-6(b).” The trial court made those findings after the September 2003 trial in which it heard oral testimony and received evidence concerning, among other subjects, the City’s efforts to comply with § ll-42-6(b).

On appeal, Russell Petroleum argues that the map contemplated in § 11-42-6 was not “on file” and therefore not “open to the inspection of the public” within the meaning of subsection (b). The purpose of that map is to provide notice to the public of the property to be annexed. With access to that information, interested persons can learn about a proposed annexation law, determine if they would be affected by a change in municipal boundaries, and fairly protest or otherwise express their views on the proposed legislation. Also, subsection (b) provides that the notice of intention to apply for a local annexation law shall “state that a map showing what territory is to be annexed to ... such municipality is on file in the office of the judge of probate in the [affected] county.” Pursuant to subsection (a), a “eop[y] of such map shall also be furnished to the judge of probate for the county ... wherein the territory proposed to be annexed to ... the municipality is located.” Because the notice of the proposed local law must be published before the bill is introduced in the legislature, the map mandated by § 11-42-6 necessarily must be furnished to the office of the probate judge in the affected county at or before the beginning of the public-notice period.

The trial court received the following evidence concerning the issue of compliance with the notice requirement and with § 11-42-6. The notice of intention to introduce this local annexation bill was first published in the Wetumpka Herald on March 1, 2001; subsequent notices followed on March 8, 15, and 22. That notice stated that the map indicating the change in the municipal boundary was on file in the office of the Elmore County probate judge. The clerk for the City testified that, on either February 28 or March 1, 2001, she furnished the chief clerk of the Elmore County Probate Court a copy of that legal notice and the map showing the territory to be annexed.

After the city clerk left the map and the notice in the probate judge’s office, the chief probate clerk was unsure what to do with them. Initially, she gave the map and the notice to the probate judge and sought his advice on how to maintain them; the probate judge subsequently returned them to her. The chief probate clerk also asked her fellow employees in the probate office whether the map and the notice should be recorded as a formal proceeding or indexed. Deciding against those options, the chief probate clerk on or about May 2, 2001, placed the map and the notice in a file folder and stored that file folder on a corner of her desk. The creation of that folder was the first “recordation” by the probate office that the map had been received in that office. The chief probate clerk, her assistant, and the probate judge knew about the folder containing the notice and the map, but not all members of the probate office staff were aware of the existence of the folder containing the map and the notice. The evidence also indicated that one visitor to the Elmore County probate office requested to see the map and reviewed it. Subsequently, in December 2001 the chief probate clerk indexed the map in the probate records of the Elmore County probate office.

Drawing all reasonable inferences in support of the trial court’s findings of fact, we conclude that there was substantial evidence from which the trial court could have found that the map was furnished to the Elmore County probate office by the city clerk on or before March 1, 2001 — the first date of the public-notice period and over one month before the bill that became the Act was introduced in the legislature. Accordingly, the trial court did not err when it found that the City satisfied the timeliness component of § 11^42-6 by furnishing the map to the probate office on or before the commencement of the public-notice period for the Act contemplated by § 106, Ala. Const.1901.

The City argues that, having made this finding, we need not inquire further. According to the City, all that § ll-42-6(b) requires is (1) a statement in the notice of intention to apply for a local law that a map showing the boundary change is available in the office of the probate judge, and (2) that the map be timely furnished to the probate judge. However, Russell Petroleum argues that, even if the requisite statement was made and the City timely furnished the map to the probate office, we must determine whether the map was “on file” and available for inspection in that office within the meaning of § 11^42-6(b). According to Russell Petroleum, an instrument is not “filed” in the probate office until some record of its physical receipt is made and the public can readily access the instrument. Although the chief probate clerk created a file folder on May 2, 2001, into which she placed the map, Russell Petroleum argues that the “filing” of the map did not occur until the chief probate clerk indexed the map in the general register in December 2001. Because the time of that indexing did not precede the public-notice period, Russell Petroleum contends that the annexation legislation was infirm because, it argues, the map was not “open to the inspection of the public.”

To comply with the requirements concerning the boundary-change map in § 11-42-6, the proponents of a local act must do more than furnish that map to the probate office and state in the public notice that the map can be inspected there. Merely furnishing the map to the probate court is of no import unless it also is open to inspection. Accordingly, we must examine whether the map in this case actually was available for inspection by the public.

We have not found, nor have we been directed to, any decisions addressing what actions a probate office must undertake before a boundary-change map is open to inspection within the meaning of § 11^42-6(b). Directing us to the “on file” language in subsection (b), Russell Petroleum argues that the map is unavailable unless the probate office records it in the same manner as it records real-property and other instruments. As support for its argument, Russell Petroleum cites two other statutes that address a probate judge’s duties concerning the filing of records. First, Russell Petroleum notes that, pursuant to § 12-13-41(3), Ala.Code 1975, a probate judge is obligated “[t]o keep all the books, papers and records belonging to his office with care and security, the papers arranged, filed and labeled so as to be of easy reference and the books and records lettered and kept with general, direct and reverse indexes.... ” Second, Russell further argues that § 12-13-43, Ala.Code 1975, is persuasive; in pertinent part, that provision requires probate judges to keep “books ... in which to make a general direct and a general reverse index of each instrument filed for record in his office .... ” The City counters that § 12-13-41(15), Ala.Code 1975, specifies those instruments the Elmore County probate judge shall record in the general register having a direct and reverse index, and that annexation maps are not listed in subsection (15) as one of those instruments.

We disagree with Russell Petroleum’s argument that the annexation map was not open to inspection during the public-notice period for the Act. Effectively, Russell Petroleum asks that we engraft language onto § 11^42-6(b) that specifies the precise manner in which a probate office must maintain a boundary-change map furnished to it pursuant to that statute. The legislature did not, however, state in § ll-42-6(a) or (b) that a map of the property to be annexed must be indexed, bound, filed, or recorded in any particular form. Further, we reject Russell Petroleum’s argument that, because of the inclusion of the words “on file” in subsection (b), we should interpret that provision as requiring a probate judge to record an annexation map in the same manner as real-property records, records of judicial proceedings, or other instruments indexed in the general register. The “on file” language in § ll-42-6(b) connotes that the office of the probate court is the repository for boundary-change maps, not that those maps “belong to” the office of the probate judge and must be indexed in the general register. See § 12-13-41(3), Ala.Code 1975.

Under this interpretation of the “on file” language in § ll-42-6(b), the proponents of a local act can comply with the requirement regarding the boundary-change map in § 11-42-6 if there is substantial evidence that the map was “open to the inspection of the public” in the probate office during the public-notice period. The chief probate clerk testified that, before she indexed the map, at least one person asked to see it; the office staff then located the map, and it was furnished as requested. Moreover, Russell Petroleum did not present any evidence indicating that any of its representatives or other members of the public attempted to see the map but were denied access to it. Based on this evidence, other testimony by the chief clerk of the probate court, and the testimony of the city clerk, the trial court could have found that, during the public-notice period for the Act, the map the City furnished to the Elmore County probate office was open to inspection by the public in that office. Accordingly, the trial court did not err when it held that the City had complied with the notice requirements in § 11-42-6(b).

B. Jurisdiction to Adjudicate Sales-Tax Liability

After the trial court upheld the Act, it determined that Russell Petroleum owed the City “$164,428.26 for [business] license fees, gas taxes, sales taxes, and penalties .... ” Russell Petroleum does not contest that, if the annexation is valid, the trial court could have entered a judgment with respect to business-license fees and municipal gasoline taxes. It argues, however, that the judgment should be reversed because, it says, the trial court lacked jurisdiction to order Russell Petroleum to pay municipal sales taxes.

A brief overview of the facts related to the sales-tax award is necessary. In its complaint the City sought to collect only municipal business-license fees and gasoline taxes. Although Russell Petroleum claimed that the collection of those taxes was illegal, it interpleaded $36,534.68 into court; Russell Petroleum alleged in its counterclaim that those moneys constituted “license fees and gasoline taxes.” Russell Petroleum further alleged that, because the annexation was invalid and it did not have records indicating the identities of its customers, the trial court should order a cy pres refund of the funds it had paid into court.

As noted above, the trial court received evidence indicating (1) that the funds paid into court were municipal sales taxes that Russell Petroleum had collected from its retail customers, and (2) that Russell Petroleum had collected over $78,000 in those taxes after 2001. Given these circumstances, the trial court effectively conformed the pleadings to the evidence when it found that “sales taxes were placed in dispute in this case.” Moreover, when it entered a judgment for the City, it ordered Russell Petroleum to remit all three types of contested funds — business-license fees, gasoline taxes, and sales taxes.

Unquestionably, the evidence and developments below supported the trial court’s finding that Russell Petroleum interjected the sales-tax dispute into consideration. Notwithstanding, we agree with Russell Petroleum that the trial court did not have authority to order it to pay sales taxes.

In 1992 the legislature enacted the Taxpayers’ Bill of Rights and Uniform Revenue Procedures Act, Ala.Code 1975, § 40-2A-1 et seq. (“the TBOR”). The legislature intended that the TBOR provide equitable and uniform procedures for the assessment and collection of taxes and for the resolution of tax disputes between taxpayers and the Alabama Department of Revenue (“the Department”). § 40-2A-2(l)a. In disputes concerning unpaid taxes, the TBOR, among other things, established procedures for the entry of a preliminary assessment, a request by the taxpayer for an administrative review of a preliminary assessment, a final assessment, the appeal of a final assessment to the administrative law division of the Department, and an appeal to circuit court of any final order issued by an administrative law judge. See §§ 40-2A-4, -7, and -9. The TBOR is not merely procedural legislation, “but also deals with the rights, remedies, and responsibilities of both taxpayers and the Department.” Ex parte State Dep’t of Revenue, 792 So.2d 380, 383 (Ala.1999).

Initially, the administrative requirements of the TBOR were directed only to the activities of the Department. However, the legislature subsequently passed the Local Tax Simplification Act of 1998, Act No. 98-192, Ala. Acts 1998 (“the LTSA”). Section 2 of that act states:

“The Legislature finds and declares that the enactment by this state of a simplified system of local sales, use, rental, and lodgings taxes which may be levied by or for the benefit of municipalities and counties in Alabama effectuates desirable public policy by promoting understanding of and compliance with applicable local tax laws.... ”

Section 3 amended, among other sections, § ll-51-201(a), Ala.Code 1975, to read as follows:

“§ 11-51-201
“(a) All taxes levied or assessed by any municipality pursuant to the provisions of Section 11-51-200 shall be subject to all definitions, exceptions, exemptions, proceedings, requirements, provisions, rules and regulations promulgated under the Alabama Administrative Procedure Act, direct pay permit and drive-out certificate procedures, statutes of limitation, penalties, fines, punishments, and deductions for the corresponding state tax as are provided by Sections 40-2A-7, 40-23-1, 40-23-2, 40-23-2.1, 40-23-4 to 40-23-31, inclusive, 40-23-36, 40-23-37, except for those provisions relating to the tax rate, and 40-23-38, except where inapplicable or where otherwise provided in this article.”

Upon enactment of the LTSA, both § 11— 51-201(a) (concerning municipal sales taxes) and § ll-51-203(a) (addressing municipal excise, use, and lodging taxes) were amended to add language stating that the assessment of those local taxes impacted by the LTSA were “subject to all definitions, exceptions, exemptions, proceedings, requirements, provisions, rules and regulations promulgated under the Alabama Administrative Procedure Act” for the corresponding state tax.

Considering the TBOR (including a 1998 amendment thereto now codified at § 40-2A-13) and the LTSA in their entirety, we held as follows in General Motors Acceptance Corp. v. City of Red Bay, 894 So.2d 650 (Ala.2004):

“[The LTSA] made the TBOR equally applicable to tax assessments and tax-collection procedures by local taxing authorities such as [municipalities and counties]....
“... The statutes amended by the LTSA clearly adopt the administrative rules and regulations promulgated by the Department to implement the TBOR, thus making municipalities and counties subject to the statutory mandates applicable to both taxing authorities and taxpayers alike when enforcing the State’s tax laws.”

894 So.2d at 653-54.

Here the City did not use the administrative procedures mandated by the TBOR when collecting its sales taxes. It did not provide Russell Petroleum notice of a preliminary or final assessment of sales taxes, and there was no administrative consideration of the dispute concerning that alleged deficiency. Instead, the City’s initial attempt to collect sales taxes from Russell Petroleum occurred in the Elmore Circuit Court.

We recently were confronted with an analogous situation in City of Red Bay, supra. There the municipality filed an action in the circuit court to collect sales and/or rental taxes on vehicles leased by the defendant; the administrative procedures envisioned by the TBOR were not invoked before that action was filed. 894 So.2d at 652. Relying on the well-reasoned authority in Patterson v. Gladwin Corp., 835 So.2d 137, 153 (Ala.2002), the Court vacated a class-certification order by the trial court concerning the collection of those municipal taxes and stated:

“The [Patterson] Court held that compliance with the TBOR is the exclusive means for obtaining a franchise-tax refund, and explicitly stated that ‘[t]he TBOR is jurisdictional on its face. See § 40-2A-7(c)(5)c; § 40-2A-9(g)(l).’ 835 So.2d at 153. See also State v. Amerada Hess Corp., 788 So.2d 179 (Ala.Civ.App.2000), in which the Court of Civil Appeals dismissed an action by the Department to recover severance taxes on the basis that the trial court lacked jurisdiction over the action because the Department had failed to follow the TBOR.
“Because the failure of the City and the County to comply with the provisions of the TBOR before filing their complaint deprived the trial court of jurisdiction, we vacate the class-certification order and remand the cause for the trial court to enter an order of dismissal.”

894 So.2d at 656 (quoting Patterson, 835 So.2d at 153).

The City of Red Bay decision is controlling authority. As in that case, the circuit court here did not have subject-matter jurisdiction to adjudicate the sales-tax issue because the City litigated that dispute without availing itself of the administrative procedures in the TBOR, which the LTSA made applicable to the assessment of local sales, use, rental, and lodgings taxes. In so holding, we reject the City’s argument that, because Russell Petroleum paid $36,534.68 in sales taxes into court and withheld other such taxes, it waived any objection to the trial court’s adjudication of the sales-tax dispute. It is axiomatic that, where a court has no jurisdiction to consider the subject matter of a cause, the litigants may not confer authority on that court to consider that matter by their agreement, stipulation, or other conduct. 21 C.J.S. Courts § 84 (2006).

IV. Conclusion

The requirements in § ll-42~6(b) regarding the boundary-change map and notice were satisfied as to the Act. Accordingly, the trial court did not err when it found that the annexation of the property on which the business is located was valid. Although Russell Petroleum was subject to the City’s taxation ordinances following the annexation of the property into the City, the trial court did not have subject-matter jurisdiction to order Russell Petroleum to remit municipal sales taxes because the City did not comply with the administrative procedures mandated by the TBOR and the LTSA that apply for the assessment of those taxes before the City litigated to collect them. Therefore, we affirm the judgment insofar as it validates the annexation and orders Russell Petroleum to pay the business-license fees and municipal gasoline taxes, but we reverse the judgment insofar as it orders Russell Petroleum to remit sales taxes. We remand this cause to the trial court for further action consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The Act was introduced in the legislature on April 3, 2001; it became law on May 18, 2001.

      . The City did not seek unpaid sales taxes in its complaint. Evidence regarding sales taxes was received by the trial court, and the court effectively conformed the pleadings to the evidence and determined that sales taxes were also in dispute. See discussion at Part III.B, "Jurisdiction to Adjudicate Sales-Tax Liability.”

      . Russell Petroleum argued to the trial court that the Act did not comply with § 106, Ala. Const. 1901. However, Russell Petroleum does not contest the constitutionality of the Act before this Court.

      . In pertinent part, § 106, Ala. Const. 1901, provides that no special, private, or local law on any subject not enumerated in § 104 shall be passed unless legal notice of that bill is published at least once a week for four consecutive weeks in a newspaper in the affected county before the bill is introduced.

      . Russell Petroleum argues that there was contradictory testimony concerning when the probate office received the map. The chief probate clerk did not recall the exact date of its receipt. The city clerk, however, testified that she delivered the map to the chief probate clerk on or before March 1, 2001 — the first date of publication of legal notice of the Act. Considering the testimony of both these witnesses, the trial court could have found that the map was furnished to the Elmore County Probate Court no later than March 1, 2001.

      . The City engaged the Alabama Department of Revenue to collect its sales taxes.

      . Our holding here is limited to municipal sales taxes. Although the City did not follow the required administrative procedures before it sued to collect the unpaid business-license fees and gasoline taxes, the trial court had jurisdiction to adjudicate the disputes related to the levy of those taxes. Municipal business-license fees and gasoline taxes are not "local sales, use, rental, and lodgings taxes,” the levies for which the LTSA mandates uniformity in assessment across the State.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    Ex parte Keith BARTON. (In re Martha Ann Cooper and Kenneth Lambert v. Stephen A. Shannon et al.).
    1050303.
    Supreme Court of Alabama.
    June 15, 2007.

      Forrest S. Latta and Chad C. Marchand of Bowron, Latta & Wasden, P.C., Mobile, for petitioner.
    Michael C. Niemeyer and Windy Cock-rell Bitzer of Hand Arendall, L.L.C., Foley, for respondents.
   SMITH, Justice.

Keith Barton, a defendant in an action pending in the Baldwin Circuit Court, petitions for a writ of mandamus directing that court to vacate its order denying Barton’s motion to dismiss the claims asserted against him by Martha Ann Cooper and Kenneth Lambert (“the plaintiffs”) and to enter an order dismissing all claims against him on the basis of lack of personal jurisdiction. We deny the petition.

Facts and Procedural History

According to the complaint, the plaintiffs, Alabama residents, were approached by Stephen A. Shannon, an Alabama resident and owner of Shannon Systems, Inc. (“SSI”). Shannon proposed that he and the plaintiffs enter into a joint venture to acquire a certain parcel of property in Perdido Key, Florida, and develop it into a condominium complex (“the project”), which they would subsequently sell for a profit.

In November 2002, the plaintiffs and Shannon executed a letter of intent to form a limited liability partnership named Gulf Development, L.L.P. (“Gulf Development”), the stated purpose of which was to acquire and develop land in Alabama and Florida. Gulf Development was to purchase the Perdido Key property (“the property”); the plaintiffs were to fund the purchase; and SSI and Shannon were to “package” and manage the construction project. The plaintiffs together were to receive 50% of the “final proceeds” after completion of the project, and Shannon and SSI were to receive the remaining 50%. Gulf Development was subsequently formed and registered in the State of Florida. Its “chief executive office” was located in Gulf Shores, Alabama, apparently in SSI’s offices.

Shannon selected The Bank of Pensacola (“the bank”), located in Pensacola, Florida, from which to acquire a loan for the purchase of the property. The plaintiffs assert that on the “eve” of the closing on the property, Shannon falsely represented to them that the bank required additional obligors on the loan because, he told them, the plaintiffs and Shannon were not sufficiently creditworthy. Shannon further allegedly represented that they had to act immediately or they would lose the property and certain earnest money. Shannon suggested that “he had a friend in Mississippi,” David Kelly, who could bring in a “Utah group” as an additional investor in the project.

In reliance on Shannon’s representations, the plaintiffs agreed to allow Green-way Properties, L.L.C. (“Greenway”) — an entity owned by Kelly — and KMJ Commercial Funding, LLC (“KMJ”), to become partners in Gulf Development. The plaintiffs asserted in the complaint that Barton — a Utah resident — was the principal owner and officer of KMJ and that KMJ was a Utah company conducting business in Alabama. A new partnership agreement for Gulf Development was executed in January 2003, adding Greenway and KMJ as partners. It appears from the materials submitted to this Court that KMJ and Greenway contributed no capital and together were granted a 25% interest in the partnership. The plaintiffs’ ownership interest in Gulf Development was thereby reduced from 50% to 37.5%.

Gulf Development began operating out of Shannon’s offices in Baldwin County. In January 2003, Gulf Development executed a note with the bank for a loan in the amount of $1,331,168.88 and used the proceeds to purchase the property. Gulf Development, the plaintiffs, and Barton were listed on the note as borrowers and their address was shown as Gulf Shores, Alabama. Barton states in his petition that he provided the bank with a personal balance sheet and personally guaranteed the loan.

Subsequently, a dispute arose between the plaintiffs and Shannon concerning the management of the construction project and Gulf Development. The plaintiffs filed a complaint, which was later amended, seeking damages against Shannon, SSI, Greenway, Kelly, KMJ, and Barton, for, among other things, fraud, suppression, and civil conspiracy. Specifically, the plaintiffs alleged that Shannon falsely represented that additional investors were necessary to obtain financing for the project, that they relied on that representation, and that they executed a new partnership agreement adding Greenway and KMJ as partners, thus reducing the plaintiffs’ interests in the partnership and allowing Greenway and KMJ to have an ownership interest in the partnership without contributing any capital. The plaintiffs further alleged that Greenway, Kelly, KMJ, and Barton were aware of and ratified the representation made by Shannon and that all the defendants intended that the plaintiffs’ ownership interests would be diluted to the defendants’ benefit. The complaint states:

“19. All of the Defendants conspired together, aided and abetted each other and agreed with the stated information to the Plaintiffs and suppressed] the truth regarding the lack of any true credit deficit. All of the Defendants acted in concert and conspired with each other to affirmatively make, through Shannon, the misrepresentations and suppressions outlined herein.
“20. All of the Defendants intended or had reason to expect that the described misrepresentations to which they all agreed and/or ratified would be conveyed or repeated or its substance communicated to the Plaintiffs by Shannon, that Plaintiffs’ conduct would be influenced thereby to their detriment. Indeed, these misstatements were material and Plaintiffs did justifiably and reasonably rely upon these misrepresentations and were in fact harmed as a result.
“21. All of the Defendants aided and abetted the suppressions of truth either negligently, recklessly or intentionally, with the intent that Plaintiff rely upon this failure to disclose. Each of these Defendants had a duty to provide accurate information and not suppress this information from Plaintiffs. This omitted information was material and was reasonably and justifiably relied upon by Plaintiffs. As a result of this concealment and the wrongful conduct perpetrated by these Defendants, Plaintiffs did not discover, and could not have discovered, this wrongful conduct until damages were already incurred and were continuing to be incurred.
“22. Defendants’ duty to disclose arose from the fact that these material facts were peculiarly in the knowledge of Defendants and not within the fair and reasonable reach of the Plaintiffs. Further, Defendants intended and acted to deceive Plaintiffs with their superior knowledge.
“24. Each of the Defendants had actual knowledge and substantive knowledge that Plaintiffs and Shannon had adequate credit for the acquisition loan and that giving any interest to KMJ or Greenway would dilute the ownership of the Plaintiffs. All of the Defendants, at all relevant times, had unique and superior knowledge unavailable to Plaintiffs. Each of the Defendants was aware of the misrepresentations and suppressions and was aware of their respective roles in promoting, aiding and abetting this fraudulent conduct and designed, contributed to and participated in this wrongful conduct. Defendants had this knowledge at the time they assisted one another. Each of the Defendants knowingly and intentionally aided and abetted and provided substantial assistance to each other in the described misrepresentations and suppressions of information. Each of the Defendants had a specific agreement to defraud and suppress information from the Plaintiffs.”

Barton filed a motion to dismiss pursuant to Rule 12(b)(1) and (2), Ala. R. Civ. P., on the grounds that the trial court had no personal jurisdiction over him. The trial court denied the motion, and Barton filed this petition for the writ of mandamus.

Standard of Review

“A petition for a writ of mandamus is the appropriate remedy by which to challenge an interlocutory order on the issue of personal jurisdiction, and a writ will issue only upon a showing of ‘(a) a clear legal right in the petitioner to the order sought, (b) an imperative duty upon the respondent to perform, accompanied by a refusal to do so, (c) the lack of another adequate remedy, and (d) the properly invoked jurisdiction of the court.’ Ex parte Mclnnis, 820 So.2d 795, 798 (Ala.2001).
“‘In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.” Robinson, 74 F.3d at 255 (quoting Madura v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)). “For purposes of this appeal [on the issue of in person-am jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her].” Duke v. Young, 496 So.2d 37, 38 (Ala.1986).’
“Ex parte McInnis, 820 So.2d at 798.”

Ex parte Puccio, 923 So.2d 1069, 1072 (Ala.2005).

Discussion

In his petition, Barton argues that he did not have sufficient contacts with the State of Alabama for the trial court to have personal jurisdiction over him. We disagree.

“ ‘A physical presence in Alabama is not a prerequisite to personal jurisdiction over a nonresident.’ Sieber v. Campbell, 810 So.2d 641, 644 (Ala.2001). What is required, however, is that the defendant have such contacts with Alabama that it ‘ “should reasonably anticipate being haled into court [here].” ’ Dillon Equities v. Palmer & Cay, Inc., 501 So.2d 459, 462 (Ala.1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).
“Depending on the quality and quantity of the contacts, jurisdiction may be either general or specific. Leventhal v. Harrelson, 723 So.2d 566, 569 (Ala.1998). ‘General jurisdiction applies where a defendant’s activities in the forum state are “substantial” or “continuous and systematic,” regardless of whether those activities gave rise to the lawsuit.... A court has specific jurisdiction when a defendant has had few contacts with the forum state, but those contacts gave rise to the lawsuit.’ Id.
“But regardless of whether jurisdiction is alleged to be general or specific, the nexus between the defendant and the forum state must arise out of ‘ “an action of the defendant [that was] purposefully directed toward the forum State.” ’ Elliott [v. Van Kleef, 830 So.2d 726, 731 (Ala.2002) ] (quoting Asahi Metal Indus. Co. v. Superior Court of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)) ‘This purposeful-availment requirement assures that a defendant will not be haled into a jurisdiction as a result of “ ‘the unilateral activity of another person or a third person.”” Elliott, 830 So.2d at 731 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).”

Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525-26 (Ala.2003) (emphasis omitted).

The plaintiffs argue that the trial court had personal jurisdiction over Barton because, they allege, he was involved in a civil conspiracy and fraud scheme with the other defendants, which scheme was directed toward and impacted Alabama residents, viz., the plaintiffs.

Allegations of fraud or a civil conspiracy, in certain circumstances, have been held to be sufficient to establish personal jurisdiction over an alleged out-of-state conspirator. Ex parte United Ins. Cos., 936 So.2d 1049, 1054-56 (Ala.2006). See also Duke v. Young, 496 So.2d 37 (Ala.1986) (holding that an Alabama court had personal jurisdiction over certain nonresident corporate board members whose allegedly intentional and fraudulent acts were expressly “aimed” at Aabama); and Shrout v. Thorsen, 470 So.2d 1222 (Ala.1985) (holding that the trial court had personal jurisdiction over an alleged out-of-state conspirator in a fraud scheme because the alleged conspirator acted to further a plan that contemplated the injury of an Alabama resident).

In Duke v. Young, six nonresident directors of a Georgia corporation purchased a business from Duke, an Alabama resident. Duke subsequently alleged that the directors acted in concert to fraudulently conceal a scheme to limit payments for the purchase of the business. Duke sued the directors in Alabama, seeking damages for fraudulent concealment of a material fact with the intent to induce Duke to enter into the contract for the sale of his business.

The directors challenged the personal jurisdiction of the Alabama trial court. This Court, in ruling that the trial court had personal jurisdiction, stated:

“The focal point of the analysis is the alleged ‘contacts’ which a defendant has with the forum state. Courts look to ‘the relationship among the defendant, the forum, and the litigation.’ Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).... [A] presence or absence from the forum state is not the foundation upon which a determination [of personal jurisdiction] is made. Physical presence merely provides strong, objective evidence of sufficient contacts. The fundamental question is, did the defendant act in such a manner that he reasonably ought to anticipate the direct consequences of his actions to be felt by another person residing in another state?
“This same point was established by the United States Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). There the plaintiff was a resident of California. The defendants were residents of Florida.... The defendants were alleged to have authored and edited an article injurious to plaintiff, that article having been disseminated in, among other places, California. The Court did not find it necessary to look for physical contacts between the defendants and the forum state. It was the nature of the defendant’s activities rather than the place of their occurrence that the Court considered: ‘[Petitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California.... [T]hey knew [the article] would have a potentially devast[at]ing impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives.... ’ Id., 465 U.S. at 789-90, 104 S.Ct. at 1487, 79 L.Ed.2d at 812.
“Crucial to the analysis is the element of foreseeability of the consequences of the defendant’s activities. There must be a clear, firm nexus between the acts of the defendant and the consequences complained of in order to establish the necessary contacts. Explicitly approving the ‘effects’ tests employed by the California court, the Supreme Court concluded, ‘[Petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.’ Id., 465 U.S. at 790, 104 S.Ct. at 1487, 79 L.Ed.2d at 813.
“... Given the nature of the claim, it is not hard to envision how the acts of the ... six directors were ‘a significant aspect of the negotiations which occurred in Alabama and that it was foreseeable that appellants’ ... transaction would have consequences in this state.’ Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983). The alleged fraudulent scheme may have been propounded, implemented, and directed by one or all of [the directors].
“... The thrust of Duke’s allegations is that [the directors] conspired to fraudulently conceal a material fact during the negotiations with Duke. This is certainly not an example of mere untarget-ed negligence. The defendants’ ‘intentional, and allegedly tortious, actions were expressly aimed at’ Alabama. Calder, supra, 465 U.S. at 789, 104 S.Ct. at 1487, 79 L.Ed.2d at 813.”

496 So.2d at 39-40 (footnote omitted).

“ ‘ “Bald speculation” or a “con-clusionary statement” that individuals are co-conspirators is insufficient to establish personal jurisdiction under a conspiracy theory. Instead, the plaintiff must plead with particularity “the conspiracy as well as the overt acts within the forum taken in furtherance of the conspiracy.” Dooley v. United Technologies Corp., 786 F.Supp. 65, 78 (D.D.C.1992).’ ” Ex parte McInnis, 820 So.2d 795, 806-07 (Ala.2001) (quoting Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C.Cir.1997) (some citations omitted)). However, in this case, the plaintiffs allege that the defendants together conspired to make certain misrepresentations, through Shannon, to convince the plaintiffs to allow Greenway and KMJ into Gulf Development as partners even though new partners were unnecessary. Barton, who the plaintiffs alleged owned and operated KMJ, personally guaranteed the loan with the bank even though the plaintiffs’ own creditworthiness was sufficient. The plaintiffs argue that they are Alabama residents and that Gulf Development, though registered in Florida, operates in Alabama. The plaintiffs thus contend that Barton acted in such a manner that he should have anticipated direct consequences for the plaintiffs in Alabama and that Barton’s allegedly intentional and tortious actions were “expressly aimed” at Alabama and Alabama residents. The “thrust” of their allegations is that Barton conspired with the other defendants to misrepresent facts and to suppress information to the plaintiffs in Alabama regarding a partnership operating in Alabama.

In his motion to dismiss, Barton argued that he had not visited Alabama or conducted any business in Alabama that would create sufficient “minimum contacts” to bring him within the jurisdiction of the Alabama courts. In an affidavit filed in support of the motion, Barton asserted that he was a resident of Utah. Barton further stated that he was not a principal or shareholder of KMJ; instead, he said, KMJ is wholly owned by National Contract Servicing, LC (“NCS”), a limited liability company he formed in March 2003 but from which he had resigned at a later, undisclosed point in time. Barton stated that although he did agree to guarantee a loan to Gulf Development relating to the project, he had had no contact with Alabama and he had not transacted any business here in connection with his business dealings with Gulf Development. Barton states that never met or spoke to either of the plaintiffs and that has “never met” Shannon. Therefore, he contends, his contacts with Alabama were insufficient for the trial court to assert personal jurisdiction over him.

“[I]f the defendant makes a prima facie evidentiary showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.’ ” Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-30 (Ala.2004) (quoting Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002)).

In Ex parte Puccio, supra, the plaintiffs sued Cambridge Credit Counseling Corporation (“Cambridge”), a nonprofit credit-counseling service, and Puccio, one of Cambridge’s corporate officers. The plaintiffs claimed that Cambridge made certain false representations to them and that it defrauded them. They further alleged that Cambridge acted essentially as an alter ego of Puccio, designed to generate profits for him.

Puccio filed a motion to dismiss, arguing that he had no contacts with Alabama and that personal jurisdiction over him as a corporate officer could not be predicated upon the trial court’s jurisdiction over Cambridge. Puccio produced an affidavit stating that he had no financial interests in Alabama, that he had never spoken to the plaintiffs, and that he had executed an agreement between the plaintiffs and Cambridge only in his capacity as president of Cambridge.

In holding that Puccio had not established that the trial court lacked personal jurisdiction over him, this Court noted that Puccio did not address the factual allegations raised in the complaint to the effect that Cambridge was Puccio’s alter ego. Instead, Puccio merely asserted that he was not an Alabama resident and that he had had insufficient contacts with Alabama to subject him to its jurisdiction. “In construing the allegations in the [plaintiffs’] complaint not controverted by Puccio as true, as we are required to do for the purposes of Puccio’s motion to dismiss, Ex parte Covington Pike Dodge, supra, we cannot say that the trial court erred in denying the motion.” Puccio, 923 So.2d at 1076.

As noted above, we consider as true the allegations of the plaintiffs complaint that are not controverted by the defendant’s affidavits. Ex parte Covington Pike Dodge, supra. Barton’s motion to dismiss and supporting affidavit do not address any of the allegations by the plaintiffs that he conspired with Greenway and Shannon to reduce the plaintiffs’ share in Gulf Development and that he joined with them in misrepresenting and suppressing information as to whether Greenway, KMJ, and Barton were necessary to secure the loan for Gulf Development. Barton does appear to claim in his affidavit that his relationship with KMJ was only through his ownership of NCS. However, NCS was formed in March 2003, after KMJ became a partner in Gulf Development in January 2003. Before that time, KMJ was owned in part by Beinhorn-PBG, LLC. According to the materials presented in the petition, Barton was a “principal” and “managing member” of that entity. Barton’s affidavit does not deny that he was involved in the operation of KMJ during the time the alleged misrepresentations or conspiracy transpired in this case, and he does not deny that he spoke with Shannon or Greenway or was otherwise not involved in any scheme to tortiously induce the plaintiffs to reduce their partnership interest in Gulf Development. Instead, his evidence is similar to that produced by the defendant in Pue-do— generic evidence that he had no contact with Alabama that does not address the factual assertions in the complaint demonstrating sufficient contacts with this state. This leaves uncontroverted the plaintiffs’ allegations of contact through the conspiracy. Therefore, Barton has not established a prima facie case that the trial court lacks personal jurisdiction and has not demonstrated a clear legal right to mandamus relief.

PETITION DENIED.

COBB, C.J., and SEE, WOODALL, and PARKER, JJ., concur.

      . KMJ filed its own motion to dismiss for lack of personal jurisdiction. The trial court denied that motion. KMJ also petitioned this Court for a writ of mandamus, and we denied its petition. Ex parte KMJ Commercial Funding, LLC (No. 1050270), February 17, 2006.

      . Beinhorn-PBG, LLC, is not mentioned in Barton’s affidavit.

      . On page eight of Barton's petition, he states that he "has never met or spoken with [the plaintiffs] or Defendant Stephen Shannon," and cites his affidavit. However, although the affidavit states that Barton had never met or spoken with the plaintiffs, it states only that he had never met Shannon — it does not say that he had never spoken with Shannon.

      . "We note that the trial court’s denial of the petitioners’ motions to dismiss for lack of personal jurisdiction is interlocutory and preliminary only. The petitioners can continue to challenge personal jurisdiction in their answers to the complaint and by motions for a summary judgment or at trial.” Ex parte United Ins. Cos., 936 So.2d 1049, 1056 (Ala.2006) (citing Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)).


author: MOORE, Judge. BRYAN, Judge, THOMPSON, Presiding Judge,

text:
    Pamela Brown TRAYLOR v. Anthony Lee TRAYLOR.
    2060156.
    Court of Civil Appeals of Alabama.
    June 15, 2007.

      Jan Schroeder Grant and Catherine R. Steinwinder of Law Offices of Judy H. Barganier, P.C., Montgomery, for appellant.
    John W. Kelly III of Kelly <& Kelly, Selma, for appellee.
   MOORE, Judge.

Pamela Brown Traylor (“the mother”) appeals from the trial court’s judgment in an action brought pursuant to the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975. We dismiss the appeal for lack of jurisdiction.

The mother and Anthony Lee Traylor (“the father”) were divorced by a judgment of the Dallas Circuit Court on July 6, 2005. Pursuant to the divorce judgment, the mother was awarded primary physical custody of the parties’ child and the father was awarded visitation. The parties were granted joint legal custody of the child. On March 7, 2006, the mother, pursuant to § 30-3-166, Ala.Code 1975, gave the father notice of the proposed change of residence of the child. On March 13, 2006, the father filed a pleading objecting to the mother’s notice, requesting a modification of custody, and seeking an injunction preventing the mother from changing the child’s residence. In his pleading, the father stated that the proposed change of the child’s residence constituted a material change in circumstances that would support a modification of the existing custody order. On March 28, 2006, the mother filed her answer. She amended her answer on May 22, 2006.

On June 1, 2006, the trial court entered a judgment granting the father’s objection to the proposed change of residence and enjoining the mother from changing the child’s residence. With regard to the father’s request to modify custody, the trial court noted that the mother had indicated that she would not change the child’s residence if the trial court granted the father’s objection to the proposed change in residence; however, the trial court stated that upon notification that the mother did, in fact, intend to change her residence, it would “retain jurisdiction of this cause for the purpose of entering such orders as may be necessary and appropriate.”

On June 7, 2006, the mother filed a motion for a new trial or, in the alternative, to alter, amend, or vacate the court’s June 1, 2006, judgment. On June 13, 2006, the trial court set the mother’s motion for a hearing on August 7, 2006. On June 14, 2006, the father filed an “objection” to the mother’s motion for a new trial. In his objection, he stated that the mother had limited his visitation from what had been customary before the hearing in this case. He also alleged that he believed that the mother had pressured the child with regard to the case. He averred:

“Should this conduct continue, ... it will materially promote the best interest of [the child] to remove her custody from [the mother] and place her physical custody with her father, with [the mother] having reasonable visitation. [The father] further contends that it would be appropriate for this Court to require that the status quo remain in effect, in all respects, as it existed prior to the commencement of this proceeding with regard to [the child].”

Apparently, the trial court did not conduct a hearing on the mother’s post-judgment motion in August 2006. On August 22, 2006, the mother and the father jointly filed a “Motion to Extend Time for Hearing on Motion for New Trial.” In their motion, the mother and the father stated:

“Come now the plaintiff, Pamela Brown Traylor, by and through her attorney of record, Philip Henry Pitts, and the defendant, Anthony Lee Traylor, by and through his attorney of record, John W. Kelly, III, and file this their consent under Rule 59.1 of the Alabama Rules of Civil Procedure to extend the time for the hearing on the Motion For New Trial Or In The Alternative, To Alter, Amend or Vacate the court’s order of May 31, 2006, from September 5, 2006, until September 29, 2006.”

(Emphasis added.)

On that same day, the trial court entered an order stating:

“The above consent of the parties having been presented to the court and the court having considered the same is of the opinion that the time for hearing the plaintiffs motion for new trial filed under rule 59 of the Alabama Rules of Civil Procedure shall be extended in accordance with Rule 59.1 from September 5, 2006, until September 29, 2006.”

(Emphasis added.) On September 8, 2006, the trial court held a hearing on the mother’s postjudgment motion, and on September 27, 2006, the trial court purported to deny the motion. The mother filed her notice of appeal on November 8, 2006.

Even though not addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “Jurisdictional matters are of such importance that a court may take notice of them ex mero motu.” McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004). “ ‘The timely filing of a notice of appeal is a jurisdictional act.’ ” Gunnison-Mack v. State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005) (quoting Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002)). “Subject to exceptions not applicable here, a notice of appeal must be filed within 42 days after entry of the judgment or order from which the appeal is taken.” Durr v. Durr, 961 So.2d 139, 140 (Ala.Civ.App.2006) (citing Rule 4(a)(1), Ala. R.App. P.).

Rule 59.1, Ala. R. Civ. P., provides:

“No post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

In the present case, the parties expressly consented on the record to extend the time for a hearing on the mother’s postjudgment motion. Our Supreme Court, however, has held that “consent to extend the time for a hearing on a postjudgment motion does not equate to consent to extend the pendency of the postjudgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P.” Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala.2004); see also Burge v. Hayes, 964 So.2d 672, 675 (Ala.Civ.App.2006). Accordingly, the joint motion to extend the time for a hearing on the mother’s postjudgment motion did not extend the 90-day period for the motion to remain pending as provided in Rule 59.1, and the trial court had 90 days from June 7, 2006, the date the mother filed her postjudgment motion, to rule on that motion. Burge, 964 So.2d at 675. At the expiration of 90 days, i.e., on September 5, 2006, the mother’s post-judgment motion was denied by operation of law. Burge, 964 So.2d at 675. The mother had 42 days from September 5, 2006, to file her notice of appeal. The 42-day period expired on October 17, 2006, but the mother did not file her notice of appeal until November 8, 2006, 64 days after her postjudgment motion had been denied by operation of law. Therefore, the notice of appeal was untimely filed, and we must dismiss the appeal for lack of appellate jurisdiction. Gunnison-Mock, supra.

APPEAL DISMISSED.

PITTMAN, J., concurs.

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

THOMPSON, P.J., dissents, with writing.

BRYAN, Judge,

concurring in the result.

Even though the parties referenced Rule 59.1, Ala. R. Civ. P., in their motion to extend the time for “the hearing,” the parties did not expressly “ ‘consent to extend the pendency of the postjudgment motion beyond the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P.’ ” Ex parte Bolen, 915 So.2d 565, 569 (Ala.2005) (quoting Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala.2004)) (emphasis added). The supreme court has clearly articulated this requirement. State v. Redtop Market, Inc., 937 So.2d 1013 (Ala.2006). However, I once again reemphasize my objection to this overly technical interpretation of Rule 59.1. My thoughts are best expressed in my special writing in Higgins v. Higgins, 952 So.2d 1144, 1149 (Ala.Civ.App.2006):

“To quote Justice Maddox’s dissent in Harrison v. Alabama Power Co., 371 So.2d 19, 21 (Ala.1979), ‘today’s decision ... is too technical, and therefore, unjust.’ I agree with the rationale as stated in Justice Bolin’s special concurrence in State v. Redtop Market, Inc., 937 So.2d 1013, 1016 (Ala.2006), and posit that perhaps this case will present an opportunity for the Supreme Court of Alabama to revisit its overly technical interpretation of Rule 59.1, Ala. R. Civ. P., regarding the adequacy of language expressing consent to extend the 90-day period for ruling on a postjudgment motion. I concur in the result solely because I am constrained by the precedents and the decisions of the Supreme Court of Alabama. Quality Cas. Ins. Co. v. Ruben, 962 So.2d 234, 240 (Ala.Civ.App.2006) (‘[the Alabama Court of Civil Appeals] is bound by the precedents established by the Supreme Court of Alabama’); see also § 12-3-16, Ala. Code 1975.”

THOMAS, J., concurs.

THOMPSON, Presiding Judge,

dissenting.

I respectfully dissent from the main opinion’s finding that the parties’ agreement in this case did not satisfy the requirements of Rule 59.1, Ala. R. Civ. P. I believe that the facts of this case are distinguishable from those in Ex parte Bodenhamer, 904 So.2d 294 (Ala.2004), and Burge v. Hayes, 964 So.2d 672 (Ala.Civ.App.2006). In Bodenhamer, the parties agreed only to extend “ ‘the ninety (90) day period for the hearing.’ 904 So.2d at 295. In Burge, one party’s consent did not appear of record and what consent existed related only to “the hearing.” 964 So.2d at 675. Here, the parties expressly agreed, of record, to extend the time for the hearing “under Rule 59.1 of the Alabama Rules of Civil Procedure.” Rule 59.1 provides a means for the extension of the 90-day period that a postjudgment motion may remain pending before the trial court. By express reference to Rule 59.1, I believe that the parties clearly stated their consent and intent to extend the pendency of the postjudgment motion pursuant to that rule. I, therefore, dissent.

      . The record does not indicate that the trial court had set the mother’s postjudgment motion for a hearing on September 5, 2006; however, pursuant to Rule 59.1, Ala. R. Civ. P., absent a valid agreement of the parties extending the time to rule on the mother’s postjudgment motion, the 90-day period to rule on the mother’s postjudgment motion was set to expire on September 5, 2006.


author: PITTMAN, Judge.

text:
    LANIER WORLDWIDE, INC. v. Gary CRUM, Sr., d/b/a Ellwood Community Church.
    2060327.
    Court of Civil Appeals of Alabama.
    June 15, 2007.

      Dayna R. Burnett and Charles N. Parnell III of Parnell & Crum, P.A., Montgomery, for appellant.
   PITTMAN, Judge.

Lanier Worldwide, Inc. (“Lanier”), appeals from an order of the Dallas Circuit Court (“the Alabama court”) granting a motion filed by Gary L. Crum, Sr., an individual who does business under the name “Ellwood Community Church,” for relief pursuant to Rule 60(b), Ala. R. Civ. P., from a judgment of the Superior Court of Fulton County, Georgia (“the Georgia court”), that was filed in the Alabama court pursuant to the Alabama Uniform Enforcement of Foreign Judgments Act (“the UEFJA”), § 6-9-230 et seq., Ala. Code 1975. We reverse and remand.

In November 2004, Lanier filed in the Alabama court a certified copy of a judgment that had been entered in July 2004 by the Georgia court in favor of Lanier and that had directed Crum to pay Lanier $17,045.66; Lanier also filed an affidavit of one of its attorneys, who testified that the judgment of the Georgia court was valid, enforceable, and unsatisfied. In response to Lanier’s notice of filing, given under the UEFJA, of the Georgia court’s judgment, Crum filed a motion pursuant to Rule 60(b), Ala. R. Civ. P., attacking the judgment of the Georgia court on the basis that the Georgia court had lacked personal jurisdiction because, Crum alleged, he had never been properly served and he lacked minimum contacts with Georgia. The Alabama court then held a hearing on Crum’s motion in March 2005; at that hearing, the Alabama court received evidentiary exhibits and heard testimony from a process server who testified to having personally served Crum with a copy of a petition filed in the Georgia court to confirm an award rendered in arbitration proceedings initiated by Lanier in Fulton County, Georgia. In December 2006, the Alabama court entered an order stating that “the Motion to Enforce the Arbitrator’s Award is Denied”; because no such motion was pending in the Alabama court, we treat that order as one granting Crum’s Rule 60(b) motion and setting aside the registered judgment of the Georgia court.

In most cases, an order granting a Rule 60(b) motion is considered interlocutory and therefore not appealable. See Ex parte Short, 434 So.2d 728, 730 (Ala.1983). However, the Alabama court’s order under review amounts to a conclusion that the judgment of the Georgia court sought to be filed in the Alabama court was void for lack of jurisdiction and that no further proceedings are contemplated with respect to enforcement of the Georgia court’s judgment in the Alabama court. Alabama courts have consistently treated similar orders granting Rule 60(b) relief as appealable. See Nix v. Cassidy, 899 So.2d 998, 999-1000 (Ala.Civ.App.2004), and Greene v. Connelly, 628 So.2d 346, 350-51 (Ala.1993) (by implication). Because Crum’s motion challenged the Georgia judgment on jurisdictional grounds, his attack on that judgment amounted to a contention that that judgment was void, which is cognizable under subsection (4) of Rule 60(b).

“When the grant ... of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.”

Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991).

We thus consider whether the Alabama court erred in determining that the Georgia court’s judgment was void for lack of jurisdiction. As an initial matter, we note that a jurisdictional inquiry is not foreclosed in this case by the doctrine of res judicata. The record reveals that the judgment of the Georgia court entered in July 2004 states that Crum was served with a summons and a copy of Lanier’s petition to confirm the arbitrator’s award in December 2003; however, at the time the Georgia court entered its judgment, “more than 45 days [had] elapsed from the service of [Lanier’s] petition,” and the Georgia court noted that Crum “ha[d] not properly filed defensive pleadings” in the Georgia court. As we noted in Package Express Center, Inc. v. Maund, 957 So.2d 1137 (Ala.Civ.App.2006), a defendant in a civil action “ ‘is always free to ignore ... judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding,’ such as [a] registration proceeding initiated by [a judgment creditor] in [a registering] court.” 957 So.2d at 1141 (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). As we concluded in Ex parte Lanier Worldwide, Inc., 922 So.2d 115 (Ala.Civ.App.2005), a default judgment entered by a Georgia court that is based upon a failure to file a proper response to a petition to confirm the arbitrator’s award does not amount to a binding waiver of a personal-jurisdiction defense. See id. at 119 (plurality opinion); see also id. at 120 (special writing concurring in the result and indicating that the issue of jurisdiction had not been addressed after full and fair litigation).

The special writing in Ex parte Lanier Worldwide, supra, indicates that where, as here, res judicata principles do not bind an Alabama court to any particular conclusion regarding the existence of a foreign court’s jurisdiction, “the courts of this state may and should inquire into the jurisdiction of a foreign court whose judgment is sought to be enforced in this state and that, in so doing, the courts of this state are to make their own determination on the merits as to whether that foreign judgment is void.” 922 So.2d at 120-21. We are, however, bound by a duty to afford full faith and credit to judicial proceedings of our sister states, a duty that partakes of both constitutional and statutory dimensions. See U.S. Const, art. IV, § 1, and 28 U.S.C. § 1738; see also Maund, 957 So.2d at 1140. We must, therefore, analyze the validity of the judgment that Lanier sought to register under the law of the state whose courts rendered it, i.e., Georgia law. E.g., Morse v. Morse, 394 So.2d 950, 951 (Ala.1981).

We are aided in our inquiry by a decision of the Georgia Court of Appeals rendered on similar facts. In Galindo v. Lanier Worldwide, Inc., 241 Ga.App. 78, 526 S.E.2d 141 (1999), Lanier filed a petition in a Georgia court to confirm an arbitration award it had obtained in proceedings against one of its alleged equipment lessees, which was located in California; that petition was granted over the alleged lessee’s personal-jurisdiction objections, and the alleged lessee appealed from that judgment. After noting that Georgia long-arm jurisdiction extended to the constitutional limits of due process (241 Ga.App. at 81, 526 S.E.2d at 144), the Georgia Court of Appeals noted that one of the three actions that the lessee had allegedly undertaken that could have conferred personal jurisdiction was his purported agreement to arbitrate any disputes in Georgia. As in this case, the pertinent lease-agreement form at issue in Galindo contained the following term:

“ ‘Any controversy or claim arising out of or relating to this Agreement or the breach hereof ... shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof....’”

241 Ga.App. at 79 n. 1, 526 S.E.2d at 142 n. 1. Although Galindo does not quote the portion of the parties’ agreement specifying that the arbitration was to occur in Atlanta, Georgia, it twice states that the agreement contained language to the effect that the parties had agreed to arbitrate any disputes in Atlanta, Georgia. See 241 Ga.App. at 79, 81, 526 S.E.2d at 142, 144. That parallels the agreement at issue in this case, in which the parties’ lease agreement states that “[t]he arbitration hearing and all proceedings in connection therewith shall take place in Atlanta, Georgia.”

Although the Georgia Court of Appeals reversed the judgment under review in Galindo, it did so on the basis that the lower court had not applied the proper standard of review to the question whether the alleged lessee had, in fact, entered into the equipment-lease agreement that contained the arbitration clause. As to the fundamental issue of personal jurisdiction, the appellate court opined, in pertinent part:

“The agreements specify that the parties agreed to arbitrate any disputes in Atlanta. And, under the [Federal Arbitration Act, 9 U.S.C. § 1 et seq.], a confirmation hearing on an arbitration award is held in the district or jurisdiction where the arbitration was held. 9 USC § 9. If [the alleged lessee] entered into the agreements, then he consented to arbitrate in Atlanta, and he further consented to personal jurisdiction in a state or federal court in the same district reviewing the arbitrator’s decision. See 9 USC § 9; see also Weststar Assoc. v. Tin Metals Co., 752 F.2d 5, 7 (1st Cir.1985) (Section 9 enables court for the district within which the award was made to exercise personal jurisdiction over the parties to the award).”

241 Ga.App. at 81-82, 526 S.E.2d at 144 (footnote omitted). Thus, Galindo indicates that had the alleged lessee’s agreement to the lease not validly been placed in controversy, the courts of Georgia would unquestionably have had personal jurisdiction over the out-of-state lessee to enter a judgment confirming an arbitration award made by an Atlanta-based arbitrator in conformity with the parties’ agreement.

In this case, there is no factual dispute that Crum entered into the lease agreements at issue, and the fact of personal service upon Crum of Lanier’s petition to confirm the arbitration award was amply demonstrated by the process server’s testimony at the Alabama court’s hearing. Those factors distinguish this case from Ex parte Lanier Worldwide, supra, in which execution of the pertinent contract documents and proper service of the pleadings filed in the Georgia court were both disputed (see 922 So.2d at 118). Because the Georgia court’s judgment was entered after proper notice of the pen-dency of the confirmation proceedings in the Georgia court and because the judgment is in conformity with Georgia law, we conclude that Lanier properly filed the judgment for enforcement in the Alabama court.

Based upon the foregoing facts and authorities, the Alabama court’s order granting relief from the Georgia judgment filed by Lanier was erroneous. That order is reversed, and the cause is remanded for the entry of an order denying Crum’s motion.

REVERSED AND REMANDED.

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

      . The record does contain a "response” to Lanier’s petition in the Georgia court that was apparently prepared by an Alabama attorney on behalf of Crum, as well as a request that the Georgia court grant Crum’s attorney leave to appear pro hac vice; however, the record does not demonstrate that the court granted Crum’s attorney’s request to appear or that the “response” was ever deemed filed by the Georgia court. Cf. LeaseFirst v. Paulk, 200 Ga.App. 497, 408 S.E.2d 707 (1991) (garnishment proceeding brought by attorney not authorized to practice law in Georgia held to be subject to dismissal).

      . To the extent that Crum, who has not favored this court with an appellate brief, sought relief in the trial court on the alleged basis that he did not receive notice of the arbitration proceeding that gave rise to the award forming the basis of the Georgia court's judgment, we note that such matters are, under the Federal Arbitration Act, 9 U.S.C. § 1 et seq., questions to be decided in arbitration, not by judicial review. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (“issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, lach-es, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide” (emphasis added)).


author: THOMAS, Judge.

text:
    R.J.L. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2060360.
    Court of Civil Appeals of Alabama.
    June 22, 2007.

      Melissa S. Gowan of Walter Northcutt & Associates, Auburn, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   THOMAS, Judge.

R.J.L. (“the mother”) appeals from a judgment following a permanency hearing in a dependency ease in which the juvenile court transferred physical custody of N.L., the mother’s two-year-old son, from the child’s foster parents in Alabama to the mother’s cousins, A.C. and R.C., in Water-town, New York. On December 27, 2006, the juvenile court entered its judgment. On January 10, 2007, the mother timely appealed to this court. On January 12, the mother filed an affidavit of substantial hardship and requested the assistance of an attorney on appeal. On January 23, 2007, the juvenile court appointed the mother an attorney on appeal and granted her a free transcript.

On March 12, 2007, the court reporter completed and filed the transcript. On March 19, 2007, the mother’s appellate counsel filed a motion for a new trial pursuant to Rule 59, Ala. R. Civ. P., or, in the alternative, a motion for relief from the judgment pursuant to Rule 60(b), Ala. R. Civ. P., arguing that the mother’s appointed trial attorney had rendered ineffective assistance of counsel. The juvenile court set that motion for a hearing on April 4, 2007, and it remains pending in the juvenile court.

To the extent that the mother’s motion was one pursuant to Rule 59, Ala. R. Civ. P., it was untimely, because it was filed more than 14 days after the entry of the juvenile court’s December 27, 2006, judgment. See Rule 1(B), Ala. R. Juv. P. (stating that “[a]ll postjudgment motions ... must be filed within 14 days after entry of the judgment”).

Rule 60(b) permits a civil litigant to collaterally attack a civil judgment, raising, among other issues, the denial of effective assistance of counsel at the trial of a dependency proceeding, see Ex parte E.D., 777 So.2d 113, 116 (Ala.2000). However, because the appeal of this cause was pending when the mother filed her motion for relief from the judgment, it was incumbent upon the mother to obtain leave from this court in order to file a valid motion under Rule 60(b) when she did in order for the juvenile court to have jurisdiction to rule upon that motion. See, e.g., Jenkins v. Covington, 939 So.2d 31, 34 (Ala.Civ.App.2006); Brown v. Foster, 785 So.2d 1141, 1141-42 (Ala.Civ.App.2000); and Davis v. Davis, 753 So.2d 513 (Ala.Civ.App.1999).

The mother’s appointed appellate counsel raises three issues on appeal, namely: (1) that the mother’s appointed trial counsel rendered ineffective assistance; (2) that the juvenile court was not presented with clear and convincing evidence that the child was dependent; and (3) that it was not in the child’s best interest to be removed from the mother’s custody.

The mother did not timely raise any of these issues in the juvenile court. It is well settled that issues not raised before the trial court cannot be raised for the first time on appeal. “Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.” Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992)(citing Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala.1984)).

“ ‘ “If there was improper procedure or an absence of proper procedure at trial, the attention of the trial judge must have been directed to it either at the time or by proper and timely post-trial motion. Without such in the record, there is nothing for our review.” ’ [Centers v. Jackson County Dep’t of Pensions & Sec., 472 So.2d 1069, 1070 (Ala. Civ.App.1985)] (quoting Embroy v. State Dep’t of Pensions & Sec., 450 So.2d 127, 129 (Ala.Civ.App.1984)).”

D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1207 (Ala.Civ.App.2005).

The judgment of the Lee Juvenile Court is affirmed.

AFFIRMED.

PITTMAN, BRYAN, and MOORE, JJ., concur.

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


author: PER CURIAM.

text:
    H.E.H. v. K.L.C.
    2060448.
    Court of Civil Appeals of Alabama.
    June 22, 2007.
    H.E.H., pro se.
    Shaun Malone, Gadsden, for appellee.
   PER CURIAM.

H.E.H. (“the father”) and K.L.C. (“the mother”) are the parents of M.E.B.H., a seven-year-old boy. The parties, who were never married, separated after the child’s birth. Subsequently, the father was convicted of drug-related charges and sentenced to a 20-year split sentence, which required him to serve 5 years in prison. The mother married L.C.

In November 2005, the mother filed in the Etowah Juvenile Court a petition seeking to terminate the father’s parental rights. On March 29, 2006, the juvenile court entered a judgment terminating the father’s parental rights. On April 5, 2006, the father timely appealed that judgment to the Etowah Circuit Court for a trial de novo.

On January 5, 2007, the father moved the circuit court to appoint counsel for him. That motion was never ruled on. On January 11, 2007, the circuit court entered the following order:

“This cause coming to be heard on the appeal by the [father] from his adverse ruling in the Juvenile/District Court of Etowah County on the [mother’s] Petition to Terminate Parental Rights, with the [mother] present and represented by [counsel] and [the father] not present and representing himself pro se, the Court finds as follows:
“The Court has reviewed the file on the matters pertaining to [the mother’s] initial Petition to Terminate Parental Rights and the Order entered by the District Court Judge on 3/29/06, bearing case number CS-02-315 and concurs with the decision of said Court. As result of same this court dismisses the [father’s] appeal....”

On February 9, 2007, the father filed his notice of appeal to this court. However, that notice, which was filed 29 days after the entry of the circuit court’s judgment of dismissal, was untimely because it was required to be filed within 14 days of the entry of the judgment even though the case was proceeding as an appeal for a trial de novo in the circuit court. See Rule 1(B), Ala. R. Juv. P. (“Procedure shall be uniform in all courts, whether at circuit or district court level or in the circuit court by trial de novo. ” (emphasis added)). The father should have filed a notice of appeal to this court on or before January 25, 2007, which was 14 days after the circuit court’s dismissal of his appeal from the juvenile court.

Accordingly, we must dismiss the father’s appeal. See Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978) (“A timely filing of the notice of appeal is jurisdictional, ... the sanction to be applied for an untimely filing being dismissal.”). See also Ryans v. State ex rel. Stoudmire, 963 So.2d 95 (Ala.Civ.App.2007); B.R. v. F.H., 962 So.2d 882 (Ala.Civ.App.2007); and R.M. v. J.D.C., 925 So.2d 970, 972 (Ala.Civ.App.2005).

APPEAL DISMISSED.

All the judges concur.

      . The circuit court apparently dismissed the appeal for "failure of the [father] to prosecute" pursuant to Rule 41fi>), Ala. R. Civ. P.