author: THOMPSON, Presiding Judge.

text:
    Paul LOWE v. Robert ROGERS.
    2091114.
    Court of Civil Appeals of Alabama.
    Feb. 25, 2011.
    Rehearing Denied June 10, 2011.
    Austin Burdick, McCalla, for appellant.
    Timothy R. Arnold, Bessemer, for appel-lee.
   THOMPSON, Presiding Judge.

Paul Lowe appeals from the order of the Jefferson Circuit Court, Bessemer Division, finding that its judgment of February 2, 2009, was void and granting the motion of Robert Rogers to set aside that judgment.

The record indicates the following relevant facts. On August 6, 2007, Lowe, acting pro se, filed a complaint against Rogers in the Bessemer Division of the Jefferson District Court (“the district court”) alleging that Rogers, doing business as Custom Hardwood Flooring, had improperly installed hardwood flooring in Lowe’s house and had improperly placed a lien on that house. Lowe wrote his complaint on the preprinted form provided by the district court.

Rogers failed to answer the complaint, and on September 28, 2007, the district court entered a default judgment in favor of Lowe. On November 25, 2007, Rogers filed a motion to set aside the default judgment pursuant to Rule 60, Ala. R. Civ. P. In the motion, Rogers stated, among other things, that Lowe had filed an action on a “false lean,” which he had taken to mean a “false lien.” Rogers asserted that an action on a false lien would sound in equity, meaning the district court would not have jurisdiction to hear the claim. Lowe, still appearing pro se, responded to Rogers’s Rule 60 motion, stating that the cause of action he asserted in his complaint was not an action on a false lien but an action alleging breach of contract. The district court set aside the default judgment and held a trial on the matter. A transcript of the trial in the district court is not included in the record on appeal. On February 1, 2008, the district court entered a judgment in favor of Lowe and awarded damages to him in the amount of $2,500. The judgment advised the parties that they had 14 days to appeal the judgment to the circuit court for a trial de novo. Neither party appealed from the district court’s judgment.

On February 20, 2008, less than three weeks after the district court had entered its judgment, Lowe, again appearing pro se, filed a complaint titled “Slander” against Rogers in the Bessemer Division of the Jefferson Circuit Court (“the circuit court”). In that action, Lowe asserted that, before Rogers had completed the work he was hired to do on Lowe’s house, Rogers had improperly filed a lien on Lowe’s property. Lowe also contended that, even though Rogers had attempted to file a release of the lien, the release had been done incorrectly “according to the court,” and, therefore, Lowe said, he had been unable to close on the sale of his house. He stated that, because of the lien, he had been unable to close on the sale of his house for more than one year, causing him to pay during that time more than $20,000 in interest on the mortgage on the house. Lowe claimed a total of $24,000 in damages for “slander and financial injury.”

Once again, Rogers did not answer the complaint. A trial was held on February 2, 2009, but Rogers did not appear; he also was not represented by counsel at the trial. The same day, the circuit court entered a judgment in favor of Lowe (“the 2009 judgment”) and ordered Rogers to pay Lowe $24,000. In the 2009 judgment, the circuit court specifically found that Rogers had been served with process in the circuit court action on May 13, 2008.

On July 15, 2010, more than one year and five months after the judgment had been entered in the circuit court action, Rogers filed a motion to set aside the 2009 judgment pursuant to Rule 60(b)(1), (3), (4), and (5), Ala. R. Civ. P. As grounds for his motion, Rogers asserted that he had not, in fact, received service, and he claimed that the case-action summary did not indicate that he had been served. He also stated that the doctrine of res judicata applied to bar the circuit court action. Rogers argued that, applying the doctrine of res judicata, the circuit court’s judgment was void and, he asserted, whether a judgment is void is an issue that can be raised at any time.

The circuit court held a hearing on Rogers’s Rule 60(b) motion. After the hearing, the circuit court entered an order on August 25, 2010, granting Rogers the relief requested. In its order, the circuit court noted that Lowe had not appealed the district court’s judgment of February 1, 2008, but that he had “simply filed a successive lawsuit.” The circuit court then stated:

“It is also clear to the Court that the subject matter of this action is the same as that of the District Court action, i.e., [Lowe] seeks damages for [Rogers’s] poor workmanship in installing the hardwood floors in his residence and for placing a lien on his property.
“It is impermissible for [Lowe] to have two bites of the same apples as he attempted to here. That is, all causes of action and claim[s] for damages must be brought together in one action, as could have occurred herein.
“More specifically, [Lowe] had before him, on or prior to the January 16, 2008, trial and entry of the February 1, 2008, [judgment] in [the district court action] complete information to have made one presentation to a court of law to resolve all pending issues between himself and [Rogers]. For all that is known, [Lowe] may have actually presented all such evidence to the District Court but if he didn’t he should have.
“Thus, if [Lowe] was not satisfied with the $2,500 district court judgment his option was to have appealed for a trial de novo. Furthermore, if the district court were to make a determination that the relief sought by [Lowe] was outside its jurisdiction, those proceedings could have been stayed and a transfer to this court could have been effectuated.”

The circuit court concluded that Rogers had demonstrated that all of the elements of res judicata existed in the circuit court action and that, as a result, the judgment in the district court action barred the relief Lowe sought in the circuit court action. Accordingly, the circuit court found that the 2009 judgment was void and, therefore, vacated that judgment. Lowe appealed from the August 25, 2010, order.

Generally, an appeal cannot be taken from an order setting aside a judgment or order pursuant to Rule 60(b), Ala. R. Civ. P., because further proceedings are contemplated by the trial court, and, therefore, the judgment or order is considered interlocutory. See Tuscaloosa Chevrolet, Inc. v. Guyton, 41 So.Bd 95, 99 (Ala.Civ.App.2009). However, in this case, the August 25, 2010, order granting Rogers’s motion for relief from the judgment not only relieved him from the 2009 judgment, but it terminated the circuit court litigation. Thus, that order is a final, appealable order. Id.; see also Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1244 (Ala.Civ.App.2004) (“[T]he rule barring appellate review of an order granting Rule 60(b) relief is not absolute; where such an order bears sufficient indicia of finality to warrant a conclusion that it constitutes a ‘final judgment,’ pursuant to § 12-22-2, Ala.Code 1975, it is appealable.”).

As mentioned, in his Rule 60(b) motion, Rogers asserted that the 2009 judgment was due to be set aside pursuant to Rule 60(b)(1), (3), (4), and (5), which provide relief from a judgment for the following reasons:

“(1) mistake, inadvertence, surprise, or excusable neglect; ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the. judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.... ”

Rule 60(b) further provides that a motion made pursuant to the rule “shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.” Rogers filed his Rule 60(b) motion on July 15, 2010, more than 17 months after entry of the judgment he sought to have set aside. Therefore, any contention that the judgment should be set aside pursuant to Rule 60(b)(1) and (3) cannot be grounds for setting aside the 2009 judgment. Further, in his Rule 60(b) motion, Rogers did not assert that the 2009 judgment “ha[d] been satisfied, released, or discharged, or [that] a prior judgment upon which it [was] based ha[d] been reversed or otherwise vacated, or [that] it [was] no longer equitable that the judgment should have [had] prospective application,” the grounds provided in Rule 60(b)(5). Accordingly, the circuit court could have properly set aside the 2009 judgment based only upon Rule 60(b)(4), which provides that a void judgment is to be set aside. Indeed, the circuit court determined that the 2009 judgment was void because, it found, the circuit court action resulting in that judgment was barred under the doctrine of res judi-cata.

“ ‘ “The standard of review on appeal from the denial [or granting] of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial 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.” ’ ”

Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)) (emphasis added); see also Ex parte N.B., 66 So.3d 249 (Ala.2010).

In this case, there is no question that the circuit court had subject-matter jurisdiction over Lowe’s slander-of-title claim against Rogers. Furthermore, although in his motion for Rule 60(b) relief Rogers asserted that he had not been served with the complaint in the circuit court action, in entering its August 25, 2010, order setting aside the 2009 judgment, the circuit court made no findings regarding that issue. However, in the 2009 judgment, the circuit court specifically found that Rogers had been served on May 13, 2008. We note that the record supports the circuit court’s finding in the 2009 judgment that Rogers was served in this case. Contrary to Rogers’s assertion, the case-action summary reflects that the sheriff executed service of the summons and complaint on May 13, 2008.

Based upon the record before us, it appears that Rogers was served with the complaint filed in the circuit court but that he failed to respond to the complaint. “Res judicata is an affirmative defense and if it is not raised in the trial court, it is deemed to have been waived.” Imperial Crown Marketing Corp. v. Wright, 560 So.2d 1025, 1027 (Ala.1989); see also Rule 8(c), Ala. R. Civ. P. Rogers failed to respond to the complaint or otherwise appear in the circuit court action; thus, he waived application of the doctrine of res judicata as an affirmative defense. Rogers cannot prevail on his argument that an affirmative defense that he failed to assert in the circuit court action renders the judgment in that action void so as to warrant relief pursuant to Rule 60(b)(4).

Rogers failed to demonstrate that the circuit court did not have subject-matter jurisdiction over the action or that it did not have jurisdiction over the parties to the action. Furthermore, he failed to demonstrate that the circuit court acted in a manner inconsistent with due process in entering the 2009 judgment. Accordingly, the circuit court erred in finding that the 2009 judgment was void.

For the reasons set forth above, the August 25, 2010, order of the circuit court setting aside the 2009 judgment is reversed, and this cause is remanded to the circuit court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    ODEN MUSIC, INC., and Jason D. Oden v. FIRST BAPTIST CHURCH OF EAST GADSDEN.
    2091024.
    Court of Civil Appeals of Alabama.
    March 25, 2011.
    Certiorari Denied June 10, 2011 Alabama Supreme Court 1100786.

      Frank W. Bailey, Gadsden, for appellants.
    Marcus A. Semmes, Anniston, for appel-lee.
   On Application for Rehearing

MOORE, Judge.

This court’s opinion of January 28, 2011, is withdrawn, and the following is substituted therefor.

Oden Music, Inc., and Jason D. Oden (“the defendants”) appeal from an order of the Etowah Circuit Court (“the trial court”) denying their motion to compel First Baptist Church of East Gadsden (“the church”) to arbitrate its claims against the defendants. We affirm.

Facts and Procedural History

On March 12, 2010, the church filed a complaint against the defendants alleging that it had entered into a contract with the defendants, pursuant to which the church had agreed to pay the defendants $34,662 for the “replacement, repair, upgrade and/or installation of various musical, audio, and video equipment.” The church alleged that it had overpaid the defendants $17,383 and that the defendants had refused to refund the total amount of the overpayment. The church further alleged that the defendants had failed to meet their obligations under the contract and had committed fraud by representing that they would replace the church’s damaged organ with a new organ when, in fact, they merely repaired and refinished the church’s damaged organ.

On April 21, 2010, the defendants filed a motion to stay the action pending arbitration; they also moved to compel arbitration. The defendants alleged that the claims asserted by the church were subject to an arbitration agreement, that the repairs to be made required the purchase and installation of parts manufactured outside the State of Alabama, and that Oden Music competes in an interstate market for the sale and repair of Hammond organs. The factual allegations in the motion were verified by Oden.

On May 7, 2010, the trial court held a hearing on the defendants’ motion to compel arbitration. At the hearing, the church conceded that the contract had some nexus with interstate commerce. The church, however, argued that Chris Taylor, the church’s administrative assistant whose signature appeared on the arbitration agreement, denied signing the agreement, and the church contended that the defendants had forged certain documents. At the conclusion of the hearing, the trial court allowed the parties 14 days to file briefs in support of their positions.

On May 21, 2010, the church filed its brief in opposition to the defendants’ motion to compel arbitration, arguing that the arbitration agreement was invalid. Specifically, the church argued that Taylor denied signing the agreement. The church also pointed out that the arbitration agreement was dated March 14, 2008, the same date a proposal the defendants had made to the church was dated, and that the church leadership had not approved the proposal until March 16, 2008. Finally, the church argued that certain documents relating to the parties’ contract were indicative of forgery, specifically, an undated sales invoice, a sales invoice dated April 2, 2008, and a representation agreement dated March 14, 2008. The church stated:

“The two sales invoices ... are obvious forgeries in that there are many handwritten sections of the two documents that are identical. If you overlay the two documents it becomes obvious that handwriting in the ‘Sold To’ box and the majority of the first line of the ‘Description’ box (‘PA Equipment & Keyboards’) are identical. More importantly, the signatures at the bottom of each of the documents are identical and each of the signatures appears at exactly the same place on the signature lines. There is no possibility of two documents executed sixteen days apart to have this many identical features. One or both of these documents have been altered and/or copied from some other document.
“The Representation Agreement ... that was presented to the [church] is an altered copy. The document that was given to [the church] by the Defendants] is a photocopy. On the photocopied document the title of ‘admin, asst.’ is written in black ballpoint pen beside the signature on the ‘Buyer’ line.
“The [church] has attached a photocopy of the Representation Agreement. ... The [church] is willing to produce the original document for inspection should either the Court or the Defendants] desire to see the alteration as described above. The alteration is not clearly visible on the photocopy attached ....
“The Representation Agreement states:
“ ‘[The church] agrees that [the church] has had an opportunity to inspect the organ/PA set [The church] further agrees that no representation has been made to [the church] by [the defendants] nor its agents with regard to age of previous use of said equip. All warranties ... shall be made expressly in writing by separate document entitled Warranty. No other warrantyfies) are made whether expressed o[r] implied.’
“The date on the Representation Agreement is March 14, 2008. This is the same date as the proposal.... It is wholly illogical for the [church] to have signed an agreement acknowledging the receipt of equipment on the same day as the proposal.... ”

The church attached an affidavit of Chris Taylor, in which he states:

“On March 14, 2008, Jason Oden presented a proposal to the [church] for the replacement of various electronic and musical equipment at the Church....
“The proposal was discussed at a church meeting on March 16, 2008. At the meeting, a vote was taken to accept the proposal of Oden Music....
“I was never presented with any arbitration agreement on March 14, 2008. I have never signed any arbitration agreement as a representative of the [church], I did not sign the document titled ‘Arbitration or Disputes Agreement’ that is dated March 14, 2008 ....
“I have had past dealings with Oden Music in an individual capacity, and may have signed an arbitration agreement as an individual at some point prior to March 14, 2008. However, I have never signed an arbitration agreement in my capacity as Administrative Assistant for the First Baptist Church of East Gadsden.
“The [undated sales invoice] appears to be a document that I signed, but it has been significantly altered after I signed the document. When I signed the document, it was simply a receipt for equipment that was loaned to the Church. Only the first line was filled out in the ‘Description’ box which said ‘PA Equipment & Keyboards.’
“The [sales invoice dated April 2, 2008,] was never presented to me, nor did I ever sign this document.
“The [Representation Agreement dated March 14, 2008,] was never presented to me, nor did I ever sign this document.”

The church also attached a copy of the minutes of a March 16, 2008, meeting, reflecting that the church had voted to accept the defendants’ proposal on that date; a copy of the undated sales invoice; a copy of a sales invoice dated April 2, 2008; and a copy of a representation agreement dated March 14, 2008.

On June 21, 2010, the trial court denied the motion to compel arbitration. The defendants filed their notice of appeal to the Alabama Supreme Court on July 27, 2010; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Standard of Review

“In reviewing a trial court’s refusal to compel arbitration, [the appellate court’s] review is de novo. This Court has held that a trial court’s ruling on a question of law is not within the trial court’s discretionary function; therefore, rulings on these motions are subject to de novo review. A de novo review is a review without any assumption of correctness.”

Kenworth of Dothan, Inc. v. Bruner-Wells Trucking, Inc., 745 So.2d 271, 273 (Ala.1999).

Discussion

On appeal, the defendants argue that the church did not meet its burden of proving that Taylor did not sign the arbitration agreement.

“A motion to compel arbitration is analogous to a motion for a summary judgment. The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract involves a transaction affecting interstate commerce. Once such a prima facie showing has been made, the burden shifts to the party opposing arbitration to present some evidence indicating that there is no arbitration agreement subject to specific enforcement under the [Federal Arbitration Act, 9 U.S.C. § 1 et seq.]. If the party opposing arbitration presents sufficient evidence to create a fact question as to the existence of a valid arbitration agreement, then the issue must be resolved by the trial court or by a jury, if one is requested.”

Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999) (citation omitted).

In Walter Industries, Inc. v. McMillan, 804 So.2d 1081 (Ala.2001) (plurality opinion), the defendants appealed to the Alabama Supreme Court following the Jefferson Circuit Court’s denial of their motions to compel arbitration. 804 So.2d at 1082. The defendants had filed motions to compel arbitration in the circuit court, alleging that the McMillans had signed an agreement to arbitrate their claims against them. In response to the motions to compel arbitration, the McMillans had filed affidavits in which they stated that they had refused to initial a contractual paragraph containing an arbitration agreement and that they had refused to sign a separate arbitration agreement. The McMil-lans noted that the initials corresponding with the paragraph containing the arbitration agreement were different than the initials that they had used in executing related contract documents. “The trial court found that the ... contract ‘was taken back to the office and pages were substituted containing, among other things, the arbitration provision,’ going on to observe that ‘forgery is a serious issue in this case.’ ” 804 So.2d at 1086. Noting that its review was under an “ ‘abuse-of-discretion standard,’ ” a plurality of the Alabama Supreme Court held that, “[g]iv-en the sparse support the defendants provided for their motions to compel arbitration, and the McMillans’ affidavits stating that ... they specifically refused to sign the [paragraph containing the] arbitration provision ..., we conclude that the trial court did not abuse its discretion in denying the defendants’ motions to compel arbitration.” Id. We note that, in Hales v. ProEquities, Inc., 885 So.2d 100 (Ala.2003), the supreme court made it clear that the abuse-of-discretion standard of review, which was the standard it used in Walter Industries, supra, was inapplicable to appeals from the grant or denial of a motion to compel arbitration and that the de novo standard of review was, instead, the proper standard to be applied. Thus, as we previously noted, we will review this appeal using the de novo standard of review.

In the present case, the defendants presented “sparse support ... for their motion[ ] to compel arbitration.” Walter Indus., 804 So.2d at 1086. In response to the motion to compel arbitration, the church filed a brief, along with an affidavit signed by Taylor, in which he specifically denied signing the arbitration agreement. Further, the church presented evidence indicating that other documents connected to the transaction also had been forged. After the church filed its brief arguing that the arbitration agreement and other documents had been forged, the defendants failed to present any evidence or arguments in response. Only in their brief to this court have the defendants, for the first time, proffered an explanation for the variation in the two sales invoices that appear, in some respects, to be identical. “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.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). For the first time on appeal the defendants also argue that the church’s admissions in its complaint that it had improperly attempted to deposit an insurance check without the check being properly endorsed and that it had written a check to the defendants without having sufficient funds in the bank to cover the check somehow balanced out the alleged forgery on the part of the defendants. Again, this court will not consider that argument because it was not raised before the trial court. Andrews, 612 So.2d at 410. Considering de novo only the evidence and arguments that were before the trial court, we conclude that the church met its burden of proving that Taylor did not sign the arbitration agreement.

The defendants cite several cases in support of their contention that the church did not sufficiently prove that Taylor did not sign the arbitration agreement. In two of the cases cited by the defendants — Prevost v. Burns International Sec. Servs. Corp., 126 F.Supp.2d 439, 441-42 (S.D.Tex.2000), and Colonial Bank of Alabama v. Coker, 482 So.2d 286 (Ala.1985) — the courts held that there was a factual issue as to whether the pertinent signature was valid and, thus, that the issue should be decided at an evidentiary hearing. See also Ex parte Compass Bank, 727 So.2d 791 (Ala.1998) (Hooper, C.J., dissenting). In this case, however, the defendants did not request an eviden-tiary hearing on their motion to compel arbitration, nor did they object to the trial court’s deciding the forgery issue based solely on the briefs, the evidence submitted in support of the briefs, and the arguments of the parties. As previously noted, “[t]his 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.” Andrews, 612 So.2d at 410. Accordingly, we cannot hold the trial court in error for failing to conduct an evidentiary hearing to resolve -the factual issues regarding the documents and the signatures.

The remaining cases cited by the defendants do not alter our decision. In Gregory v. Interstate/Johnson Lane Corp., 188 F.3d 501 (4th Cir.1999) (table), an unpublished opinion cited by the defendants, the appellate court simply reversed the judgment and remanded the cause for the trial court to determine whether the alleged signatory to the arbitration agreement had signed or was otherwise bound by the agreement to arbitrate. Because the trial court in this case has already made that determination, we find no need to remand the case as the court did in Gregory. Lewis v. State, 437 So.2d 642, 644 (Ala.Crim.App.1983), holds that a jury may decide a disputed factual issue regarding whether a party signed a waiver of rights; however, that case does not mandate a jury determination when a party acquiesces to the trial court’s deciding the issue based solely on affidavits, arguments, and briefs, as happened in the present case. Zajac v. Zajac, 49 Ala.App. 637, 640, 275 So.2d 154, 156 (Civ.App.1972), concerned solely the doctrine of res judicata, which is inapplicable to the present case. White v. Massachusetts Mutual Life Insurance Co., 275 Ala. 581, 585, 157 So.2d 6, 10 (1963), could be construed as allowing a trial court to determine from a handwriting comparison whether a person signed a document, but it does not mandate that the trial court in this case had to decide in favor of the defendants on that issue. Cornejo v. Spenger’s Fresh Fish Grotto, [Ms. C 09-05564 MHP, May 17, 2010] (N.D.Cal.2010) (not reported in F.Supp.2d), likewise allows a trial court to use a handwriting expert to determine a forgery issue, but it does not require it to do so.

Based on the foregoing, we conclude that the trial court properly denied the defendants’ motion to compel arbitration.

The defendants also argue that the trial court erred to the extent that it relied on the church’s assertion that Taylor was not authorized to sign an arbitration agreement and to the extent that it relied on a finding that the arbitration agreement could be severed from the rest of the contract. In light of our conclusion that the trial court could have properly found that Taylor’s signature on the arbitration agreement had been forged, we pretermit discussion of those arguments.

Conclusion

Based on the foregoing, we affirm the trial court’s order denying the defendants’ motion to compel arbitration.

APPLICATION OVERRULED; OPINION OF JANUARY 28, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

      . In Ragone v. Atlantic Video at Manhattan Ctr., (No. 07 Civ. 6084, August 29, 2008) (S.D.N.Y.2008) (not reported in F.Supp.2d), and Dassero v. Edwards, 190 F.Supp.2d 544 (W.D.N.Y.2002), cited by the defendants in support of their position, the alleged signatory in each case failed to categorically deny signing the arbitration agreement. In the present case, however, Taylor denied signing the arbitration agreement, so we find those cases distinguishable.

      . The defendants argue that, because our standard of review is de novo, we can consider arguments raised for the first time on appeal. We note, however, that the defendants cite no law in support of their position and that this court has previously held in cases in which the standard of review was de novo that arguments could not be raised for the first time on appeal. See Simmons v. Carwell, 10 So.3d 576 (Ala.Civ.App.2008) (plurality opinion); see also Ladas Land & Dev., Inc. v. Metritt & Walding Props., L.L.P., 978 So.2d 55, 59-60 (Ala.Civ.App.2007).


text:
    Tina LANG v. Michael LANG.
    2100396.
    Court of Civil Appeals of Alabama.
    May 27, 2011.

      Jeffrey G. Rainer and Nancy J. Rainer of Rainer & Rainer, LLC, Northport, for appellant.
    John A. Russell III of Russell & Russell, P.C., Aliceville, for appellee.
   THOMPSON, Presiding Judge.

Tina Lang (“the mother”) appeals from a judgment, entered on remand, modifying custody of the parties’ three children. The mother had been awarded primary physical custody of the children when she and Michael Lang (“the father”) divorced in December 2004.

This is the second time the parties have appeared before this court on the issue of custody modification. See Lang v. Lang, 61 So.3d 311 (Ala.Civ.App.2010) (“Lang I ”). In Lang I, the trial court entered a judgment (“the 2010 judgment”) awarding custody of the two younger children to the father and, after finding that the mother was unfit, awarding custody of the oldest child to the children’s maternal grandparents. This court determined that the trial court’s finding that the mother was unfit was not supported by sufficient evidence. We also found that the trial court had applied the incorrect standard in modifying custody of the children. Accordingly, we reversed the 2010 judgment and remanded the cause for the trial court to consider whether custody modification was appropriate under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

On remand, the trial court considered the same evidence that had been presented at the July 30, 2009, trial, and it did not take any new evidence. We note that, at the time of the July 2009 trial, the children were 16, 9, and 6 years old; thus, they were nearly two years older at the time the trial court entered the judgment at issue in this appeal. The youngest child is a boy; the older two children are girls.

This court has explained the procedural history and the facts of this dispute as follows:

“The record indicates the following. In August 2006, the father filed a petition seeking to hold the mother in contempt for staying overnight with a member of the opposite sex while the children were present, in contravention of the divorce judgment. The father also requested custody of the parties’ three children. The mother then filed a motion seeking to hold the father in contempt for his failure to pay child support and for his failure to exercise visitation with all the children. The mother asserted that the father visited with only one child and took only one child for summer vacation. The mother and the father settled their differences at that time, and the trial court incorporated their agreement into a judgment entered on August 23, 2006. In that judgment, the trial court also held the mother in contempt for her admitted violation of the cohabitation provision of the divorce judgment. In the August 23, 2006, judgment, the trial court also stated: ‘The parties have agreed that no future custody petitions shall be filed based on the co-habitation issue which is being resolved by this order.’
“On March 26, 2007, the father filed another petition for a custody modification, alleging that the mother had violated the August 23, 2006, order enforcing the provision in the divorce judgment forbidding the mother to cohabitate. In his petition, the father sought custody of the parties’ middle child and asked that custody of the oldest and youngest children be awarded to the maternal grandparents. The same day — March 26, 2007 — the trial court entered an ex parte order awarding pendente lite custody of the middle child to the father and awarding pendente lite custody of the other two children to the maternal grandparents.
“During the two years after the entry of the ex parte pendente lite order, the parties filed a number of petitions and motions regarding child support and visitation issues. Four judges have presided over this case. As pointed out by the trial judge who entered the judgment made the basis of this appeal, it appears from the record that the parties reached agreements on the issues raised in their various petitions before hearings could be held. Since the entry of the March 26, 2007, ex parte custody order, the custody arrangement set forth in that order remained in place. After providing time for the parents to submit to drug tests and for a psychologist to examine the children and after a number of continuances requested by the attorneys for both parties and by the guardian ad litem appointed to represent the children, a trial was held on the issue of ‘permanent’ custody on July 30, ■ 2009.
“The evidence adduced at the July 30, 2009, trial tended to show the following. The father testified that he sought a custody modification because, at the time he filed the petition in 2007, the mother was spending the night with a man who was a user and manufacturer of methamphetamine. The mother acknowledged that she had been in a relationship with the man, and she was aware he used and manufactured methamphetamine, but, she said, she did not use drugs or drink alcohol. The older children were upset over the mother’s relationship with the man, who was in jail at the time of the trial. The mother acknowledged that, while she was in that relationship, she had put her relationship with her boyfriend before the needs of her children. She said that, at the time, she did not believe that the relationship might cause her to lose custody of her children because, she said, she believed that the father was ‘trying to get back’ at her. She also testified that, although she had continued the relationship after the trial court entered the ex parte pendente lite custody order on March 26, 2007, she never ‘stayed’ with the man again. The mother testified that the relationship had ended more than a year before the 2009 trial.
“At the time of the trial, the mother was engaged to a man she had known all of her life. She said that they had been dating for seven months. Her fiancé has a four-bedroom, two-bath house, large enough to accommodate all three children; she said that she did not want the children separated. At the time of the trial, the mother was living with the maternal grandparents. She said that she had moved in with them to be with her children, two of whom had been living with the maternal grandparents as a result of the 2007 ex parte order. The mother testified that she had a full-time job and could support all three children. She also said that she was back in school studying to earn a degree as a registered nurse.
“The mother submitted to a drug test, the results of which were negative, but she did not submit to the hair-follicle test that the trial court requested. The mother testified that she could not afford the latter test but that she did submit to a urine drug test. The results of that test, included in the record, indicated that the mother was not using drugs of any kind.
“The mother also did not take part in the psychologist’s examination of the children. She testified that she thought she was to make the children available for the psychologist, but she did not think that she was to be there. The order requiring the children to submit to the examinations states:
“ ‘[T]he court finds that it is in the best interest of the children that they be examined by a licensed psychologist or psychiatrist in order to determine their current emotional state; any underlying causes of distress; and to make recommendations to the court and the guardian ad litem concerning future handling of the children’s emotional needs.’
The father was ordered to pay the cost of the children’s sessions with the psychologist.
“Similarly, the mother testified that she did not contact the guardian ad li-tem appointed on behalf of the children because, she said, she believed that the guardian ad litem was to contact the children. The mother said that she had not paid the guardian ad litem because, she said, she never received a bill.
“The father was living with his father in the children’s paternal grandparents’ house at the time of trial. The father’s mother had died a month before the trial. The paternal grandparents’ house has three bedrooms: the paternal grandfather has one room, the father has one room, and the middle child has the last room. When the youngest child had visited with the father, he had slept with the father in his room or with the paternal grandparents in their room. The father testified that if he received custody of all three children, he would have to ‘work out’ sleeping arrangements. He speculated that they would make use of ‘air mattresses, couches, whatever.’
“The father testified that he had requested custody of only one of the children because it was too difficult for him to drive the oldest and youngest children to school. The oldest child was in high school in Gordo, and, at the time the father filed his petition, the youngest child was in school in Reform. The father lived in Greene County, more than 30 miles away from the children’s schools. At the time of the trial, however, the middle child and the youngest child attended the same school. The father said that, in addition to seeing the youngest child every other weekend, he also sees the youngest child when he takes the middle child to school or picks her up from school. The father testified that he and the oldest child, a daughter, had a strained relationship. He seldom saw the oldest child, although he did speak with her on the telephone approximately once every two weeks.
“The middle child was in the fourth grade at the time of the trial. By all accounts, she was a good student while in the father’s custody. When the middle child was in the first grade, she lived with the mother. The father called the middle child’s first-grade teacher to testify that, while in the first grade, that child had been inattentive, had frequently daydreamed, and had ‘seemed to be just in her own little world.’ Both the mother and the father met with the teacher and were involved in helping to work with the child. The teacher also testified that she recalled ‘something about maybe the power was cut off when the middle child was living with the mother; however, the teacher could not remember specifically where the power had been turned off, saying: T don’t know that it was [the middle child’s] mother’s apartment or house. It may have been someone else’s.’ The teacher noted that three years had passed since the incident.
“The father conceded that he had not made any child-support payments in the eight months preceding the trial. The father testified that he was self-employed and that his income fluctuated between $16,000 and $30,000 annually. Evidence introduced at trial indicated that the father’s monthly income was $1,500 and that the mother’s monthly income was $2,393.60.
“A psychologist who had met with the two oldest children in 2008 testified that, at that time, both were emotionally healthy, well adjusted children. The psychologist said that the oldest child appeared to be angry with the mother for being in a relationship with a man. At the time the psychologist met with the children, the mother would still have been in the relationship with the man who allegedly used and manufactured methamphetamine, whom she was no longer seeing at the time of the trial. Likewise, the psychologist said, he thought the oldest child had distanced herself from the father. The psychologist’s report indicated that the oldest child thought that the father’s affair with a ‘close friend of the family had caused her parents’ divorce.”

Lang I, 61 So.3d at 313-15.

On January 7, 2011, the trial court entered a judgment (“the 2011 judgment”) in which it again awarded the father custody of the two younger children. Despite our holdings in Lang I that the evidence was insufficient to support a finding that the mother was unfit and that a nonparent could not be awarded custody of the children in the absence of such a finding, see Lang I, 61 So.3d at 320, the trial court also awarded the maternal grandparents custody of the oldest child, who is finishing her senior year in high school. The mother appeals.

“When a trial court hears evidence presented ore tenus, makes findings of fact, and enters its judgment based upon such facts, we review that judgment with a presumption of correctness. We will not reverse except for an abuse of discretion or where the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Matter of Young, 456 So.2d 823 (Ala.Civ.App.1984).”

Tallent v. Tallent, 630 So.2d 74, 75 (Ala.Civ.App.1993).

The mother contends that the evidence was insufficient to warrant a change of custody pursuant to Ex parte McLendon. The McLendon standard is as follows:

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

We further note that “[a] pendente lite order awarding custody to a parent does not create a presumption in favor of the party who is awarded pendente lite custody.” T.J.H. v. S.N.F., 960 So.2d 669, 673 (Ala.Civ.App.2006).

In the 2011 judgment, the trial court found the following changes in circumstances:

“1. The mother was involved in a relationship with [the man who used and manufactured methamphetamine] which is now over. She acknowledged that during the relationship with [that man] that he manufactured and used methamphetamine. She denied using methamphetamine or being around others when they did. 2. The mother is now engaged to be married to [a man she has known all her life] which relationship appears to be wholesome.”

The trial court also stated that the mother had “character flaws,” adding that it did not believe the mother’s testimony that, during her earlier relationship, she had not used methamphetamine or that she had not been around others when they used it.

As she did in Lang I, the mother contends that the trial court based its finding of a material change in circumstances on outdated evidence and that her current circumstances no longer warrant a change in custody. In Lang I, this court agreed that the trial court had relied on facts that were no longer relevant when ordering the custody modification. Lang I, 61 So.3d at 319 (citing B.S.L. v. S.E., 875 So.2d 1215, 1224 (Ala.Civ.App.2003), in which this court reversed a judgment modifying custody based on the mother’s history of drug and alcohol abuse when the mother had voluntarily sought treatment and had abstained from abusing drugs and alcohol for almost two years as of the date of trial).

As we pointed out in Lang I, and as the trial court acknowledged in the 2011 judgment, the mother’s relationship that the father testified was the basis for his request for a custody modification and that the trial court used as the primary basis for finding a material change in circumstances, had ended more than a year before the trial of this case and approximately three years before the entry of the 2011 judgment. In Lang I, this court explained that,

“[a]t the time of the trial, the mother was engaged to a man she had known all of her life. There was no evidence indicating that the mother’s fiancé had engaged in improper or illegal conduct. There was no evidence indicating that the mother was using illegal drugs at the time of the trial. The mother’s flan-eé had already purchased a house large enough to accommodate all three of the mother’s children. The mother held a full-time job and had returned to school to become a registered nurse. The psychologist who had examined the two older children found them both to be healthy and well adjusted. It is true that the older children were upset with the mother’s relationship at the root of this case; however, the psychologist also found that the older child was upset with the father, too, because of her belief that his affair with a family friend had caused the breakup of the parties’ marriage.”

Lang I, 61 So.3d at 319-20. We also noted that, like the mother in B.S.L., the mother’s circumstances at the time of the trial had changed for the better. In fact, she is in a relationship that the trial court, in the 2011 judgment, characterized as “wholesome.” Furthermore, there is no evidence in the record to indicate that the mother’s so-called “character flaws” affected the welfare of the children; thus, those “flaws” are insufficient to deprive the mother of custody. See A.L. v. S.J., 827 So.2d 828, 832-33 (Ala.Civ.App.2002), and Armstrong v. Armstrong, 515 So.2d 27, 28-29 (Ala.Civ.App.1987) (“Custody will not be modified because of evidence of indiscreet conduct, sexual or otherwise, by a custodial parent unless that conduct had a substantial detrimental effect upon the welfare of the child”).

In reviewing the totality of the record before us, we hold that the evidence is insufficient to support the trial court’s judgment modifying custody, awarding custody of the younger children to the father and custody of the oldest child to the maternal grandparents. Accordingly, the trial court’s judgment is reversed, and a judgment is rendered for the mother.

REVERSED AND JUDGMENT RENDERED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

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


author: THOMAS, Judge. MOORE, Judge,

text:
    Ex parte S.P. (In re M.S. v. S.P.).
    2100329.
    Court of Civil Appeals of Alabama.
    May 27, 2011.

      Daniel L. Forman, Decatur, for petitioner.
    Roger W. Pierce of Haygood, Cleveland, Pierce, Mattson & Thompson, LLP, Auburn, for respondent.
   THOMAS, Judge.

On December 15, 2010, L.E.P. (“the mother”) was killed in an automobile accident. The mother had been married to S.P. (“the father”) until their divorce, which had been entered on June 2, 2009. The mother gave birth to V.C.P. (“the child”) on February 12, 2010. M.S. (“the maternal grandmother”) filed a dependency petition in the Lowndes Juvenile Court (“the juvenile court”) on December 16, 2010, alleging that the child was dependent because her mother was deceased; because her custody was in controversy; because the father’s paternity had not yet been established; and because the father had been abusive to the mother, had suffered in the past from mental instability, and was unable to provide stability for the child. On December 17, 2010, at the mother’s funeral, the maternal grandmother took custody of the child pursuant to an ex parte order of the juvenile court entered that same day purportedly declaring the child to be dependent and awarding the maternal grandmother temporary legal custody of the child.

The father moved to dismiss the maternal grandmother’s petition, arguing first that the juvenile court lacked jurisdiction because another action regarding the child was pending in Morgan Circuit Court. That action, however, had been instituted after the filing of the maternal grandmother’s petition. The father later renewed his motion to dismiss, adding as grounds for the requested dismissal that the maternal grandmother lacked standing to seek a dependency determination, a paternity adjudication, or a custody award; the father filed a brief in support of this motion. Meanwhile, on January 5, 2011, the juvenile court ordered genetic testing of the child and the father in order to establish paternity. The father objected to the order for genetic testing and sought a change of venue. He then filed this petition for the writ of mandamus.

“ ‘A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.’ Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998). The petitioner must demonstrate:
“ ‘ “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala.1987)).”

Ex parte D.J.B., 859 So.2d 445, 448 (Ala.Civ.App.2003).

The father seeks a writ of mandamus compelling the juvenile court to dismiss the maternal grandmother’s petition on two grounds. He first argues that the juvenile court lacks subject-matter jurisdiction over the action because, he asserts, it is a custody action as opposed to a dependency action. See generally E.H. v. N.L., 992 So.2d 740, 741-42 (Ala.Civ.App.2008) (explaining that a juvenile court does not have jurisdiction over custody disputes between divorced parents unless emergency circumstances threatening the welfare of the child exist). Within his argument on this first issue, the father also complains that the juvenile court improperly found the child to be dependent without conducting a hearing on the allegations of dependency. Secondly, he argues that the maternal grandmother lacked standing to initiate the action seeking to establish paternity of the child because, he contends, he is a presumed father under Ala.Code 1975, § 26-17-204(a)(2), which provides that a man is presumed to be the father of a child born within 300 days of the termination of the marriage between the mother and that man by, among other things, divorce.

We must reject the father’s first argument — that the juvenile court lacks subject-matter jurisdiction over the maternal grandmother’s petition because the petition is a petition seeking custody and not a dependency petition — because we conclude that the petition filed by the maternal grandmother contains allegations sufficient to invoke the dependency jurisdiction of the juvenile court. The maternal grandmother alleged that the father had been abusive toward the mother, that he had had issues with mental instability, and that he was not capable of providing the child a stable home at the time the petition was filed. In addition, the maternal grandmother alleged in her petition that paternity of the child had not been established and that the mother was deceased, leaving the child without a parent to provide her care. Any of those allegations, if proven at trial, would establish that the child is “without a parent ... willing and able to provide for the care, support, or education of the child.” Ala.Code 1975, § 12-15-102(8)a.2. Thus, we conclude that the allegations in the maternal grandmother’s petition were sufficient to invoke the dependency jurisdiction of the juvenile court. See, e.g., L.L.M. v. S.F., 919 So.2d 307, 309-10 (Ala.Civ.App.2005) (concluding, under the definition of “dependent child” contained in former Ala.Code 1975, § 12-15-1, that allegations indicating a threat to the welfare of the child were sufficient to invoke the dependency jurisdiction of the juvenile court).

The father further complains that the juvenile court, in its December 17, 2010, order, found the child to be dependent without having held a hearing on the maternal grandmother’s petition. We consider the juvenile court’s order an ex parte temporary order; however, we recognize the impropriety of a dependency finding in an ex parte order. Alabama courts have long held that an evidentiary hearing on the merits of a dependency petition is required in order for a juvenile court to declare a child to be dependent. See Ex parte Linnell, 484 So.2d 455, 457 (Ala.1986) (construing former Ala.Code 1975, § 12-15-65(d), the predecessor statute to Ala.Code 1975, § 12-15-310(a) & (b)); K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010); and Ex parte W.H., 941 So.2d 290 (Ala.Civ.App.2006) (construing former § 12-15-65(d)). The Alabama Juvenile Justice Act, see supra note 1, did not alter this requirement. In fact, § 12-15-310(a) explains that an “adjudicatory hearing” is a hearing at which evidence is presented in support of a dependency petition, and § 12-15-310(b) states that the juvenile court should hear evidence on the petition if the parties dispute the allegations in the petition or if they fail to respond to the petition. Nevertheless, the juvenile court’s dependency finding, however inappropriate, is not a sufficient basis for dismissing the maternal grandmother’s petition.

We now turn to the father’s argument that the maternal grandmother lacked standing to institute her action. We have explained that the allegations in the petition are sufficient to invoke the dependency jurisdiction of the juvenile court. Alabama law provides that anyone 18 years of age or older with knowledge of the facts forming the basis of the dependency allegations may sign a dependency petition. Ala.Code 1975, § 12-15-121(a). Thus, the maternal grandmother had standing to initiate the dependency action by signing and filing her petition.

We reach a different conclusion regarding the maternal grandmother’s standing to initiate the paternity portion of the action. Although, under Ala.Code 1975, § 26-17-602, any interested party may bring an action to establish paternity, limitations in Ala.Code 1975, §§ 26-17-607 and 26-17-609, restrict standing to seek an adjudication of paternity in specific instances. When there is a presumed father, the Alabama Uniform Parentage Act permits the presumed father to disprove his paternity at any time. § 26-17-607(a). However, if the presumed father wishes to persist in his presumption of paternity, no one may bring an action to disprove his paternity or to establish paternity in another man. Id. (“If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”). The Alabama Comment to § 26-17-607 specifically states that “[sjubsection (a) follows Ex parte Presse, 554 So.2d 406 (Ala.1989)[,j and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein.”

As mentioned above, the father in the present case argues that he is a presumed father under § 26-17-204(a)(2), which provides that “[a] man is presumed to be the father of a child if ... he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce.” The mother and the father had been married, they were divorced on June 2, 2009, and the child was born on February 12, 2010, within 300 days of the entry of the divorce judgment. Thus, the father is the presumed father of the child under § 26-17-204(a)(2), and, pursuant to § 26-17-607(a), the maternal grandmother lacked standing to institute an action seeking to disprove the father’s paternity or to establish paternity in another man because the father has decided to persist in his presumption of paternity.

Accordingly, we grant the father’s petition for a writ of mandamus insofar as his petition relates to the maternal grandmother’s request that the paternity of the child be adjudicated. The juvenile court is directed to dismiss the maternal grandmother’s action insofar as it requests that paternity adjudication. Because the juvenile court’s order requiring the father and the child to undergo genetic testing as a means of proving or disproving the father’s paternity was based on the maternal grandmother’s action seeking to establish paternity, which was instituted without standing, we further direct the juvenile court to vacate that order. See Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008) (quoting State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala.1999) (quoting in turn Beach v. Director of Revenue, 934 S.W.2d 315, 318 (Mo.Ct.App.1996))) (stating that a court that notices or is informed that it lacks subject-matter jurisdiction must dismiss the action and that “ ‘ “[a]ny other action taken by a court lacking subject matter jurisdiction is null and void” ’ ”).

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

MOORE, J., concurs in the rationale in part and concurs in the result, with writing.

MOORE, Judge,

concurring in the rationale in part and concurring in the result.

I concur in that part of the main opinion concluding that the maternal grandmother did not have standing to seek a paternity adjudication and directing the juvenile court to vacate its January 5, 2011, order requiring genetic testing; I concur in the result in the remaining parts of the main opinion addressed to the maternal grandmother’s dependency action.

      . We do agree, however, that the maternal grandmother did improperly rely on, as a ground for dependency, an allegation that the child's custody was the subject of controversy. Under former Ala.Code 1975, § 12 — 15— l(10)(c), an allegation that a child’s custody was the subject of controversy was sufficient to invoke the dependency jurisdiction of the juvenile court. However, in 2008, the Alabama Legislature, among other things, amended and renumbered Ala.Code 1975, § 12-15-1 et seq., and enacted the Alabama Juvenile Justice Act (“AJJA”), codified at Ala. Code 1975, § 12-15-101 et seq. The AJJA omitted the "custody in controversy” ground for dependency. See Ala.Code 1975, § 12-15-102(8) (defining "dependent child”).

      . As we explain below, the maternal grandmother’s allegation regarding the child’s lack of a parent to assume her care after the death of her mother is unfounded based on the father's status as a presumed father.

      . Because we have concluded that the maternal grandmother's petition is a dependency petition, we will not entertain the father's argument that the maternal grandmother lacked standing to initiate a custody action in the juvenile court.


text:
    J.A.W. and T.L.W. v. G.H.
    2100286.
    Court of Civil Appeals of Alabama.
    May 27, 2011.

      Jack W. Torbert, Jr., of Torbert & Tor-bert, P.A., Gadsden, for appellants.
    Jonathan M. Welch, Gadsden, for appel-lee.
    Judge William D. Russell, juvenile court judge, Gadsden, joined in the brief filed by Welch.
   THOMPSON, Presiding Judge.

This matter came before this court by way of a petition for a writ of mandamus. The materials submitted to this court indicate that in April 2010, following the birth of E.R.H. (“the child”), the Etowah County Department of Human Resources (“DHR”) filed a petition in the Etowah Juvenile Court (“the juvenile court”) alleging that the child was dependent. In its dependency action, DHR alleged that the child’s mother was facing criminal charges related to the death of one of the child’s siblings and that G.H., the child’s father, had tested positive for the use of illegal drugs and prescription medications for which he did not have a prescription. The juvenile court entered an order finding the child dependent.

The allegations of the parties indicate that DHR began working with the father toward reunification with the child. A DHR court report prepared for an October 28, 2010, review hearing indicates, among other things, that the father had not been compliant with goals established by DHR and that the social worker assigned to the child’s case recommended that DHR file a petition to terminate the parents’ parental rights to the child.

While the dependency action was pending in the juvenile court, J.A.W. and T.L.W., the child’s foster parents, filed an action in the Etowah Probate Court (“the probate court”), seeking to adopt the child. On November 18, 2010, the probate court entered an interlocutory order of adoption in which it granted custody of the child to the foster parents, scheduled a final dispo-sitional hearing for December 30, 2010, and ordered that notice of the adoption proceeding be served pursuant to § 26-10A-17, Ala.Code 1975. The father filed a contest to the adoption proceeding in the probate court.

On December 20, 2010, the father filed in the juvenile court a motion seeking to enjoin the foster parents from proceeding with the adoption action then pending in the probate court. In that motion, the father alleged, among other things, that he was “fully cooperating” with the reunification goals established by DHR and that, at the last review hearing, the juvenile court had denied a recommendation that DHR be allowed to seek the termination of his parental rights. The father did not file a similar motion in the probate court.

On the same day the father filed his motion to enjoin the foster parents from proceeding in the probate court, the juvenile court entered an order purporting to enjoin the foster parents from “proceeding with the adoption [action] filed” in the probate court and purporting to order the foster parents to cooperate with DHR’s efforts to reunite the father and the child. In that December 20, 2010, order, the juvenile court also specified that the foster parents’ failure to comply with that order would result in a contempt finding.

The parties agree that the probate court received evidence at the scheduled December 30, 2010, dispositional hearing in the adoption action and that the foster parents participated in that hearing. On December 30, 2010, the probate court entered a judgment approving the foster parents’ adoption of the child. The father did not seek appellate relief from the probate court’s judgment approving the adoption. We make no conclusion as to the propriety of the probate court’s judgment approving the adoption.

In their petition for a writ of mandamus to this court, the foster parents seek a determination that the juvenile court lacked jurisdiction to enter its December 20, 2010, order purporting to enjoin them from proceeding with their adoption action in the probate court. Although the foster parents filed a petition for a writ of mandamus in this court, the proper method of obtaining review under these circumstances is by taking an appeal. Ex parte State Pers. Bd., 45 So.3d 751, 754 (Ala.2010) (holding that appeal is the appropriate method of appellate review when the activity of a nonparty has been enjoined). Accordingly, this court has elected to treat the foster parents’ petition for a writ of mandamus as an appeal.

The foster parents raise several issues. However, we conclude that their jurisdictional argument is dispositive. Under certain circumstances, a juvenile court may enter an order “restraining the conduct of any party over whom the juvenile court has obtained jurisdiction.” § 12-15-131, Ala.Code 1975 (emphasis added). The foster parents argue that the juvenile court lacked jurisdiction over them because, they contend, they were not parties to the dependency action pending in the juvenile court.

The State Judicial Information System (“SJIS”) report for the dependency action indicates that the foster parents’ attorney filed a notice of appearance in the juvenile court. However, the foster parents did not move to intervene in the dependency action, and no party to the dependency action sought to join the foster parents as parties. Nothing in the SJIS indicates that the juvenile court entered any order making the foster parents parties to the dependency action pending in the juvenile court.

The father concedes in his submissions to this court that the foster parents were not parties to the dependency action in the juvenile court. However, he contends that the foster parents were “voluntary participants” in the reunification process designed by DHR and in the juvenile court proceedings arising from DHR’s dependency petition. Thus, the father argues, the foster parents “availed themselves” of the juvenile court’s jurisdiction. We cannot agree.

As the foster parents point out, in B.V. v. Macon County Department of Human Resources, 14 So.3d 171, 175 (Ala.Civ.App.2009), this court held that foster parents who had failed to intervene in a dependency action were not parties to that action. See also Duncan v. First Nat’l Bank of Jasper, 573 So.2d 270, 273-74 (Ala.1990) (appellants who did not intervene in an action were not parties before the trial court); Committee Comments on 1973 Adoption of Rule 24, Ala. R. Civ. P. (“An order authorizing intervention is, of course, necessary before the would-be in-tervenor becomes a party. Cowan v. Tipton, 1 F.R.D. 694 (E.D.Tenn.1941).”).

In Ex parte State Personnel Board, supra, the State Personnel Board sought to intervene in an action by employees of the State based on claims pertaining to a deferred-compensation plan; that action named as a defendant, among others, the Alabama State Employees Association. The trial court did not grant the Board’s motion to intervene, but it entered, among other things, an order purporting to restrict the Board’s authority to issue certain discovery subpoenas related to the litigation. The Board filed a petition for a writ of mandamus. Our supreme court noted that the Board had not been allowed to intervene in the trial court and, therefore, held that the Board was not a party to the litigation below. Accordingly, the supreme court concluded that, because the Board was not a party to the litigation pending in the trial court, the trial court “had no authority to restrict the Board’s actions through the discovery process.” Ex parte State Pers. Bd., 45 So.3d at 755.

In this case, it is undisputed that the foster parents were not parties to the dependency action in the juvenile court. See B.V. v. Macon County Dep’t of Human Res., supra. Accordingly, we conclude that the juvenile court did not have jurisdiction to enter its December 20, 2010, order purporting to enjoin the actions of the foster parents. Ex parte State Pers. Bd., supra. When a court lacks jurisdiction over a person, any order directed at that person is void. Ex parte Full Circle Distrib., LLC, 883 So.2d 638, 644 (Ala.2003); M.M. v. B.L., 926 So.2d 1038, 1042 (Ala.Civ.App.2005). A void order or judgment will not support an appeal. Jones v. Sears, Roebuck & Co., 342 So.2d 16, 17 (Ala.1977); M.M. v. B.L., supra. Accordingly, we dismiss the appeal and instruct the juvenile court to vacate its December 20, 2010, order.

APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN and BRYAN, JJ„ concur.

THOMAS and MOORE, JJ., concur in the result, without writings.

      . At the time of that court report, the mother had been sentenced to several prison terms for felony charges related to the death of the child's sibling, including a 20-year sentence for aggravated child abuse.

      . The foster parents also point out that § 12— 15-131 requires that they be afforded notice of the father’s motion and an opportunity to be heard on that motion; they contend they were afforded neither. However, because we resolve this appeal on other grounds, we pre-termit discussion of that issue.


text:
    Dana ISBELL v. ROGERS AUTO SALES.
    2100186.
    Court of Civil Appeals of Alabama.
    May 27, 2011.
    Beverly Owen Barber, Pell City, for appellant.
    J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Dana Isbell appeals from a summary judgment entered by the St. Clam Circuit Court in her action against Rogers Auto Sales (“Rogers”). For the reasons set forth herein, we reverse and remand.

On January 7, 2006, Isbell purchased a vehicle from Rogers, an automobile dealership. The circumstances surrounding that purchase are in dispute. On January 26, 2006, Isbell filed an action against Rogers and its owner, Roger Ragan, in the St. Clair District Court. Her action was thereafter transferred to the St. Clair Circuit Court. In her complaint, Isbell alleged that she had selected, made a down payment on, and taken possession of a vehicle from Rogers. She alleged that Rogers was demanding that the vehicle be returned because Isbell could not be approved for financing for the purchase of the vehicle. Isbell stated that, at the time of the filing of the complaint, the first payment on the purchase price of the vehicle was not yet due to be paid. She alleged that the defendants were calling her and her daughter at their places of employment, thereby allegedly “creating problems with the possibility of dismissal due to the disruptiveness of the phone calls.” She asserted counts of fraud, wantonness, and breach of contract against the defendants. Shortly after Isbell filed the complaint, Rogers repossessed the vehicle.

On May 14, 2010, Rogers and Ragan filed a motion for a summary judgment in which they argued that it was undisputed that Isbell was going to finance the amount of money she owed on the vehicle after purchasing it but that her credit application was denied because of a pending bankruptcy. They argued that, after the denial of Isbell’s credit application, Ragan attempted to work out an accommodation with Isbell so that she could keep the vehicle and make payments on it but that, when it became clear that Isbell could not make payments on the vehicle or obtain alternative financing for it, Rogers repossessed the vehicle. Thus, the defendants argued, they acted pursuant to their rights and did not breach any contract with Isbell.

The defendants also argued that they were not liable to Isbell for fraud. They asserted that, although Isbell claimed that Rogers had indicated that it would finance her purchase of the vehicle, the documents relating to the transaction indicated that a Florida company, Select Automotive Management, LLC, would be providing the financing for the transaction. As to Is-bell’s wantonness claim, the defendants argued that the repossession of the vehicle could not constitute wantonness because it was within their rights to repossess the vehicle.

To their summary-judgment motion, Rogers and Ragan attached a copy of Is-bell’s deposition. In her deposition, Isbell testified that she had purchased the vehicle for her daughter and that her daughter would be paying for the vehicle. Isbell stated that, on the day she purchased the vehicle from Rogers, Ragan informed her that Rogers would provide the financing for the vehicle. Isbell testified that she had had no intention of seeking financing for the purchase of the vehicle from a financing company because, at that time, she was going through bankruptcy. She stated that she obtained insurance and a tag for the vehicle. She testified that, approximately two weeks later, a financing company began calling her at work seeking to verify certain information about her. The company informed her that it had purchased her loan from Rogers and was attempting to approve her application for credit. Isbell testified that she asked the caller, “What application?” because Isbell had not applied for credit. Isbell stated that, when she contacted Ragan about the situation, Ragan informed her that her application for credit had not been approved and that she would need to return the vehicle. She testified that she told Ragan she would return the vehicle if he would return her down payment, but Ra-gan refused to return her down payment. Thereafter, she stated, Rogers repossessed the vehicle. Isbell testified that her daughter had left certain items, including an engagement ring, in the vehicle. She stated that she attempted to retrieve those items but that she was unable to do so because the vehicle had been placed in storage. Isbell testified that, at the time of the repossession, the first payment on the vehicle was not yet due.

The defendants also attached to their motion the bill of sale and the title application relating to Isbell’s purchase of the vehicle. The bill of sale indicated that the price of the vehicle was $7,995, with $327.97 in taxes and fees, a down payment of $1,000, and “deferred down payment” of $400, leaving a balance on the price of the vehicle of $6,922.97. The bill of sale and the application for certificate of title listed Select Automotive Management, LLC, as the lien holder. Isbell signed both of those documents. The defendants also attached to their motion a document titled “Right of Repossession,” which was signed by Ragan, on behalf of Rogers, and Isbell. That document indicated that Rogers was extending a loan to Isbell, stating, in part:

“I hereby agree that in the event that I fail to make any payment or any part of any payment on my loan from you then you are authorized by me and have the right to take said vehicle back from me, without the necessity of court order or judicial process.”

(Emphasis added.)

Isbell filed a response to the defendants’ summary-judgment motion in which she argued that her payments on the vehicle were current at the time Rogers repossessed it, that the defendants had told her that Rogers would be financing the purchase of the vehicle, and that genuine issues of material fact precluded the entry of a summary judgment. Isbell submitted a copy of the “auto binder receipt” for her insurance policy, which designated Rogers as the lien holder on the vehicle she was purchasing.

On June 21, 2010, the trial court granted the defendants’ motion and entered a summary judgment in their favor. Isbell filed a motion to vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P., in which she stated that she had located the salesman for Rogers who was involved with her purchase of the vehicle. Isbell stated that the salesman, who was no longer employed by Rogers, would confirm that she was told that Rogers would finance the purchase of the vehicle. She also stated that she was not late on any installment payments at the time Rogers repossessed the vehicle and that Rogers had retained the funds she had paid to Rogers as a down payment on the vehicle. She specifically requested a hearing on her motion. She also stated that genuine issues of material fact had precluded the entry of a summary judgment in favor of the defendants. She requested a hearing on the motion. In later filings related to her postjudgment motion, Isbell continued to request a hearing on her postjudgment motion. The trial court did not hold the requested hearing, and, on October 14, 2010, Isbell’s post-judgment motion was denied by operation of law. Isbell filed a timely appeal, which the supreme court transferred to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Isbell contends that the trial court erred when it failed to hold a hearing on her motion to vacate the summary judgment. She argues that, when a party that has filed a postjudgment motion requests a hearing on that motion, a court is required to hold that hearing. We agree.

Rule 59(g), Ala. R. Civ. P., provides:

“Presentation of any post-trial motion to a judge is not required in order to perfect its making, nor is it required that an order continuing any such motions to a date certain be entered. All such motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.”

(Emphasis added.) Describing the effect of the emphasized part of that rule, our supreme court has held that when a party requests a hearing on its postjudgment motion, “the court must grant the request.” Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). However, although a trial court errs when it fails to hold a requested hearing on a Rule 59 postjudgment motion, the supreme court has explained that such error does not always require reversal:

“Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.”

Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989).

In the present case, Isbell specifically requested a hearing on her post-judgment motion. By failing to hold such a hearing, the trial court committed error. We conclude that that error requires reversal because, based on the above-discussed evidence and the arguments contained in Isbell’s postjudgment motion (e.g., that genuine issues of material fact precluded the entry of a summary judgment), there is probable merit to Isbell’s motion.

Rogers argues that this court should affirm the trial court’s summary judgment because Isbell’s motion was based on newly discovered evidence, i.e., the testimony of the salesperson who sold her the vehicle, but that she did not actually present that testimony to the trial court or provide any evidence indicating that she could not have submitted that testimony to the trial court before the trial court entered the summary judgment. However, even assuming the testimony of the salesperson constituted “newly discovered evidence,” Isbell was not required to present that evidence in her motion, see Flagstar, 779 So.2d at 1221-22 (trial court’s judgment reversed for noncompliance with Rule 59(g) in failing to hold hearing on postjudgment motion that included only allegations of juror misconduct), and she was free to wait until the hearing she had requested on her motion to provide evidence of why she could not have submitted that testimony before the trial court entered the summary judgment, see Ex parte Owen, 860 So.2d 877, 880 (Ala.2003) (“In McDowell [v. Burford, 646 So.2d 1327 (Ala.1994) ], we stated that the plaintiffs were required to demonstrate the circumstances that had prevented them from presenting evidence to counter the evidence offered in support of the defendant’s motion for a summary judgment. 646 So.2d at 1328. There is no rule, however, that requires those circumstances to be demonstrated through affidavits or other evidence submitted with the written motion; it is sufficient if the trial court considers oral testimony to support a Rule 59(e) motion to alter, amend, or vacate a judgment.”).

Moreover, in addition to relying on the discovery of the whereabouts of the salesperson and the testimony the salesperson would provide, Isbell also argued in her postjudgment motion that there were genuine issues of material fact precluding summary judgment. That argument does not appear to rest entirely on newly discovered evidence, and, as a result, the provision of the salesperson’s testimony would not have been necessary to support all aspects of Isbell’s postjudgment motion.

Rogers also restates to this court the arguments it made to the trial court in support of its summary-judgment motion. However, the question posed by the present appeal is not whether the trial court properly entered a summary judgment in favor of the defendants but, rather, whether the trial court’s error in refusing to afford Isbell the hearing she requested on her postjudgment motion is reversible error because there was probable merit in Isbell’s motion. See Greene, 554 So.2d at 381. We will not, at this juncture, make a determination on the ultimate issues underlying the summary judgment. As noted above, we have concluded that there was probable merit in Isbell’s post-judgment motion and, as a result, that the trial court erred to reversal in allowing Isbell’s postjudgment motion to be denied without a hearing.

Based on the foregoing, we reverse the denial of Isbell’s postjudgment motion by operation of law, and we remand the cause to the trial court to hold the requested hearing on that motion as mandated by Rule 59(g), Ala. R. Civ. P.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . This entity is also referred to in the record as "Rogers Motors” and "Rogers Motors, Inc.” Isbell also named Roger Ragan, the owner of Rogers, as a defendant in the action. Although Isbell listed only Rogers as the ap-pellee in her notice of appeal, the appellees' brief indicates that it was filed on behalf of Rogers and Ragan.