author: MURDOCK, Justice. LYONS, Justice

text:
    Ex parte MICHELIN NORTH AMERICA, INC. (In re Shane Seaborn, administrator of the estate of Gustavo Perez Lopez, deceased v. Michelin North America, Inc., and Michelin Americas Research & Development Corporation).
    1081268.
    Supreme Court of Alabama.
    Aug. 13, 2010.

      Charles A. Stewart III of Bradley Arant Boult Cummings LLP, Montgomery; Scott Burnett Smith and John W. Rea of Brad-
    ley Arant Boult Cummings LLP, Birmingham; and Robert P. Monyak and Bonnie Lassiter of Peters & Monyak, LLP, Atlanta, Georgia, for petitioner.
    Benjamin E. Baker, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent.
   MURDOCK, Justice.

Michelin North America, Inc. (“MNA”), and Michelin Americas Research & Development Corporation (“MARC”) (hereinafter referred to collectively as “Michelin”) petition this Court for a writ of mandamus ordering the Barbour Circuit Court to transfer this Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) action to Tuscaloosa County. We grant the petition.

I. Facts and Procedural History

On September 27, 2006, Gustavo Perez Lopez was driving his 1997 Ford Explorer sport-utility vehicle on 1-65 in Prattville, a city located in Autauga County. Allegedly, the tread of the right rear tire on the vehicle separated from the tire carcass, causing the vehicle to become uncontrollable. The vehicle rolled over, and Lopez sustained fatal injuries as a result.

On September 11, 2007, Shane Seaborn, as administrator of Lopez’s estate, filed an AEMLD action in the Barbour Circuit Court against Michelin and Middle Tennessee Imports, Inc., alleging that the defendants designed, manufactured, and sold a defective tire and that the tire caused the accident that resulted in Lopez’s death. In the complaint, Seaborn alleged that venue was proper in Barbour County pursuant to § 6-3-7(a)(3), Ala. Code 1975, because Seaborn was a resident of Barbour County and he believed Michelin did business in that county. The complaint stated that at the time of the accident Lopez was living in Tennessee and that he had acquired the used Ford Explorer in Tennessee.

On October 15, 2007, MNA and MARC filed separate answers to the complaint in which they each denied the allegation that venue was proper in Barbour County and asserted the affirmative defense of improper venue, stating that the Barbour Circuit Court “should transfer the case to Autauga County, Alabama, where venue is proper.” MNA stated that it is a New York corporation with its principal place of business in Greenville, South Carolina; MARC stated that it is a Delaware Corporation with its principal place of business in Greenville, South Carolina.

On November 27, 2007, and January 22, 2008, respectively, Seaborn filed first and second amended complaints in which he continued to allege that venue was proper in Barbour County. On December 11, 2007, and February 1, 2008, respectively, MNA and MARC filed answers to Sea-born’s first and second amended complaints in which each again denied that venue was proper in Barbour County and pleaded improper venue as an affirmative defense, stating that the Barbour Circuit Court “should transfer the case to an alternative county where venue is proper, such as Tuscaloosa County, Alabama[] or Autauga County, Alabama.” In its answers, MNA also raised as an alternative defense that if venue was proper in Barbour County, then, for the convenience of the parties, witnesses, and in the interest of justice, the Barbour Circuit Court “should transfer venue of this lawsuit to another county with more significant connections to the incident in question, such as Tuscaloosa County, Alabama, or Autau-ga County, Alabama, pursuant to Alabama Code § 6-3-21.1 (1993).”

On April 21, 2008, MNA and MARC filed a joint motion for a change of venue pursuant to Rule 82(d)(1), Ala. R. Civ. P., on the ground that venue was improper in Barbour County or, in the alternative, on the ground that, if venue in Barbour County was proper, the action should be transferred based on the doctrine of forum non conveniens pursuant to § 6-3-21.1. Michelin filed affidavits and excerpts from witness depositions in support of its motion. Michelin asserted, with evidentiary support, that neither MNA nor MARC did business by agent in Barbour County; that the tire in issue was designed by MARC in South Carolina; and that the tire was manufactured, inspected, and sold by MNA in Tuscaloosa.

On the same date it filed its motion for a change of venue, Miehelin removed the action to the Federal District Court for the Middle District of Alabama. On February 20, 2009, the federal district court remanded the action to the Barbour Circuit Court for lack of subject-matter jurisdiction. See Seaborn v. Miehelin North America, Inc., (No. 2:08cv305-MEF., Feb. 20, 2009) (M.D.Ala.2009) (not reported in F.Supp.3d).

On February 25, 2009, Miehelin renewed its motion for a change of venue on the alternative grounds of improper venue and forum non conveniens. In its response to the motion, Seaborn contended that Michelin could not invoke the doctrine of forum non conveniens because, it argued, Michelin “presented no evidence that Barbour County was [a] proper venue at the time of filing [the action].” Seaborn did not dispute Michelin’s evidence indicating that neither MNA nor MARC did business by agent in Barbour County.

Following a hearing, in an order entered on May 18, 2009, the circuit court denied Miehelin’s motion for a change of venue. As to the issue of forum non conveniens, the circuit court concluded that a transfer to another venue was not appropriate because “there is no evidence before the Court that venue was proper [in Barbour County] at the time of filing [of the action].” In rejecting Michelin’s argument that venue was not proper in Barbour County, the circuit court reasoned as follows:

“[Miehelin] also argues that venue should be transferred to Tuscaloosa County under Rule 82 because venue was improper at the time the action was filed. Assuming [Miehelin is] correct, the Court finds that Michelin’s motion to transfer venue is untimely pursuant to Rule 82. Rule 82 is clear that any motion to transfer venue under Rule 82(d)(1) or 82(d)(2) must be made within thirty (30) days. See Ex parte Starr, 419 So.2d 222 (Ala.1982) (Fn. 1); Ex parte DaimlerChrysler Corp., 952 So.2d 1082 (Ala.2006) (Fn. 7); Rule 82(d)(2)(C)(iii).
“Although [Miehelin] objected to venue in its responsive pleading, [Miehelin] did not file a motion to transfer venue within the thirty (30) day requirement of Rule 82. Therefore, although [Miehelin] objected to venue in its initial answer, its failure to file a motion to transfer venue within the time requirements allowed by Rule 82 acted as a waiver of the objection to venue. See Rule 82(d)(2)(C)(iii). Moreover, this case has been pending since September 11, 2007. In Ex parte Starr, 419 So.2d 222 (Ala.1982), the Alabama Supreme Court held that filing a motion to transfer venue months after a case was commenced was untimely; thus, [Michelin’s] motion is generally untimely.”

Miehelin timely filed its petition for a writ of mandamus following the circuit court’s ruling on its motion for a change of venue. This Court granted Michelin’s motion to stay the circuit court proceedings pending the disposition of this petition for writ of mandamus.

II. Standard of Review

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id: Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala. 1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

III. Analysis

Michelin first contends that venue is improper in Barbour County and that it made a timely objection to venue and filed a timely motion to transfer venue. It insists that the circuit court clearly erred in concluding otherwise.

The circuit court concluded that Michelin’s motion for a change of venue was untimely first because it believed Michelin had to file its motion within 30 days. For support of this proposition, the circuit court cited Rule 82(d)(2)(C)(iii), Ala. R. Civ. P. Rule 82(d), Ala. R. Civ. P., provides:

“(d) Improper venue.
“(1) As of the Commencement of the Action. When an action is commenced laying venue in the wrong county, the court, on timely motion of any defendant, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.
“(2) After Commencement of the Action.
“(A) Voluntary Dismissal. When a defendant whose presence made venue proper as to the entire action at the time of the commencement of the action is subsequently dismissed on notice or motion of the plaintiff, the court, on motion of less than all remaining defendants, in its discretion, may, and on motion of all remaining defendants, shall transfer the action to a court in which the action might have been properly filed had it been initially brought against the remaining defendants alone; provided, however, in the event that a pro tanto settlement between the plaintiff and a defendant is the basis for the dismissal of that defendant, the action shall not be transferred unless the court, in its discretion, has determined that the primary purpose of the pro tanto settlement was an attempt to defeat the right to transfer that would have otherwise existed had there been a dismissal of that defendant without such settlement.
“(B) Involuntary Dismissal. When a defendant whose presence made venue proper as to the entire action at the time of the commencement of the action is subsequently dismissed on motion of that defendant, and such dismissal has been made a final judgment as to that defendant pursuant to Rule 54(b), [Ala. R. Civ. P.,] the court, on motion of less than all remaining defendants, may, in its discretion, and, on motion of all remaining defendants, shall transfer the action to a court in which the action might have been properly filed had it been initially brought against the remaining defendants alone, provided that any such motion is served prior to commencement of trial and after said order of dismissal has become final by appeal or expiration of time for appeal.
“(C) Timeliness of motion.
“(i) Voluntary dismissal. A motion to transfer after voluntary dismissal of a party shall be served as soon as practicable if the action has been set for trial within less than thirty (30) days of the dismissal or if the trial of the action has commenced; and, in all other instances, within thirty (30) days after the plaintiff serves a notice of the voluntary dismissal on all other parties and files a copy of the notice with the clerk.
“(ii) Involuntary dismissal. A motion to transfer after involuntary dismissal of a party shall be served, in all events, prior to the commencement of trial, and as soon as practicable if the action has been set for trial within less than thirty (30) days of the finality by appeal or expiration of the time for appeal of the order of dismissal; and, in all other instances, within thirty (30) days after the plaintiff serves on all other parties a notice of the finality of the order of dismissal and files a copy of the notice with the clerk.
“(iii) Waiver. A defense of improper venue under this rule is waived if a motion to transfer is not served within the time limits of subsections (d)(2)(C)(i)-(ii) of this rule.”

Rule 82(d), Ala. R. Civ. P.

The circuit court apparently understood Rule 82( d) (2) (C) (iii) to refer to motions for a change of venue that are made under Rule 82(d)(1) as well as Rule 82(d)(2). As we recently observed, however, “Rule 82(d)(2)(C)(i)-(iii), by its wording, does not apply to improper venue as of the commencement of the action.... ” Ex parte Movie Gallery, Inc., 31 So.3d 104, 112 (Ala.2009). In other words, Rule 82(d) does not impose a 30-day time limit for filing a motion for a change of venue when venue is improper at the commencement of the action. Instead, Rule 82(d)(1) requires a “timely motion” by the defendant.

The cases cited by the circuit court in its order denying Michelin’s motion for a change of venue do not contradict Movie Gallery. In Ex parte DaimlerChrysler Corp., 952 So.2d 1082, 1098 n. 7 (Ala.2006), this Court stated:

“[The plaintiff] also argues that the petitioners have waived the issue of forum non conveniens because they waited over six months after the complaint was filed before filing their motion to dismiss on that basis. Section 6-5-430 contains no limitations period within which to move for a dismissal. [The plaintiff] suggests that Rule 82(d)(2)(C), Ala. R. Civ. P., which provides that a motion for a change of venue should be filed within 30 days, provides guidance. Rule 82(d), however, addresses the transfer of a case filed in an improper venue; it does not address the doctrine of forum non conveniens. There is no dispute that Etowah County is a proper venue in this case; thus, Rule 82(d) is inapplicable.”

(Emphasis added.) The DaimlerChrysler Court was simply observing that Rule 82(d) pertains to transfers based on improper venue and does not address transfers based on forum non conveniens.

The circuit court also cited a footnote in Justice Beatty’s special concurrence in Ex parte Stair, 419 So.2d 222 (Ala.1982), in which he stated that “[t]he amended version of Rule 82, effective March 1, 1982, and thus not applicable here, defines what is [a] timely [motion for a change of venue] but does not address the situation presented here.” 419 So.2d at 224 n. 1 (Beatty, J., concurring specially). Justice Beatty’s statement was general in nature; it did not specifically state that a 30-day time limit is applied to motions challenging venue at the commencement of the action.

As this Court explained in Movie Gallery:

“The Alabama Rules of Civil Procedure provide two ways in which the venue chosen by the plaintiff may be challenged as of the commencement of the action: Rule 12(b)(3)[, Ala. R. Civ. P.,] provides for the challenge of venue within 30 days, either in the responsive pleading, i.e., the answer, or by a motion made before the responsive pleading. Rule 82(d)(1) provides for the transfer of the action by timely motion of the defendant when venue has been laid in the wrong county.”

31 So.3d at 109. Michelin pleaded improper venue in each of its answers to Sea-born’s complaints, and it specifically requested in those answers that the circuit court transfer the action to a proper venue. Thus, like the defendant in Movie Gallery, “by asserting its defense of improper venue in its answer, [Michelin] preserved its right to file a timely motion for a change of venue under Rule 82(d)(1)....” 31 So.3d at 111.

The remaining issue, therefore, is whether Michelin’s motion for a change of venue was “timely” under Rule 82(d)(1). The circuit court again cited Starr — this time the main opinion — for support of its secondary finding that Michelin’s motion was “generally untimely.” Starr is distinguishable, however. The Starr Court stated, in pertinent part:

“The trial court denied the petitioner’s request for change of venue on the ground that his motion was not timely. He then filed this petition for writ of mandamus, asking this Court to require the trial court to grant his motion for change of venue. We deny the petition.
“The first time the defendant raised the venue issue came some nine months after the complaint was filed. This is not a timely objection under Alabama Rules of Civil Procedure, Rule 82.
“The defendant’s first pleading in the case was filed only after the plaintiffs had taken a default judgment. He alleged that his failure to file an answer was due to inadvertence or mistake. He did not deny having been served with a copy of the summons and complaint. He did not raise venue at that time and did so for the first time after this Court refused to order reinstatement of the default judgment.
“He argues that his motion to dismiss under Rule 12(b)(3), Alabama Rules of Civil Procedure, which recognizes improper venue as a good defense, was his first responsive pleading in this litigation and was, therefore, timely. We disagree. The Alabama Rules of Civil Procedure were designed to secure the just, speedy, and inexpensive determination of every civil case. This petitioner seeks extraordinary relief by way of mandamus after having failed to file an answer to a lawsuit admittedly served on him. He has put the plaintiffs to considerable expense, both in terms of time and money, and has sought and received relief from a default judgment. Only after the plaintiffs failed in this Court to have the judgment reinstated did he raise the venue issue. Under these facts, we hold that his objection to venue comes too late.”

Starr, 419 So.2d at 223 (emphasis added).

In contrast to the circumstances in Starr, between October 15, 2007, and February 1, 2008, Michelin timely filed answers to the plaintiffs original complaint and two amended complaints. Each of these answers contained clear assertions of the defense of improper venue. Two and a half months after the filing of the last of these answers, Michelin filed a motion for a change of venue.

Seaborn contends that Michelin’s motion for a change of venue is generally untimely because Michelin “waited over seven (7) months before it sought to transfer venue under Rule 82 despite knowing that venue was improper when it was first served with the Complaint.” Seaborn argues that Michelin’s behavior in filing its motion for a change of venue is contrary to the notion that the Alabama Rules of Civil Procedure are designed to “secure the just, speedy and inexpensive determination of every action.” Rule 1(c), Ala. R. Civ. P. Seaborn alleges that “Michelin was neither vigilant nor diligent in filing its motion to transfer.”

There are several problems with Sea-born’s contention. First, as noted, Michelin filed its motion for a change of venue two and a half months after MNA and MARC filed their answers to Seaborn’s second amended complaint. In Movie Gallery, by comparison, this Court concluded that a defendant’s motion to transfer an action based on improper venue was timely when it was filed 81 days after the defendant’s answer normally would have been due — almost 4 months after the complaint was filed — and 55 days after the defendant’s answer actually was filed pursuant to an agreement to extend the time for filing an answer. See Movie Gallery, 31 So.3d at 111.

Second, Seaborn’s claim that Michelin knew that venue was improper in Barbour County from the outset of the action ignores the fact that Michelin needed to provide support for its motion for a change of venue. See Ex parte Pratt, 815 So.2d 532, 538 (Ala.2001) (“Once the party challenging venue has met the burden of pleading improper venue, he then has the burden of proving that venue is improper.”). A defendant may need at least some time to marshal evidence to prove the allegation that venue is improper. Indeed, federal courts have explicitly concluded that the invocation of discovery does not always serve as a waiver of the defense of improper venue if the defense has been properly pleaded by the defendant. See, e.g., Shaw v. United States, 422 F.Supp. 339, 341 (D.C.N.Y.1976): “The taking of depositions would not, by itself, produce a waiver of the venue issue, ... especially where, as here, discovery was necessary to frame the averments included in the motion to dismiss or transfer that was ultimately made.” See also 14D Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3829 (2007) (noting that “[o]n occasion a party who has raised a proper objection to venue will make use of discovery before pressing for a decision on the venue objection. The service of interrogatories and the taking of depositions is not, in itself, a waiver of the venue defense.”).

Michelin argues that its delay in filing the motion for a change of venue was due in part to its seeking discovery to support its alternative ground for its motion for a change of venue, forum non conveniens. Seaborn argues that this is not a legitimate reason because, it says, the doctrine of forum non conveniens applies only where the action is commenced in a county where venue is appropriate, see, e.g., Ex parte Townsend, 589 So.2d 711, 714 (Ala.1991), and “Michelin knew venue was improper at the commencement of this action.” Parties are permitted to make arguments in the alternative, however. Here, Michelin was confronted with a complaint filed in Barbour County by a plaintiff who thereby took the position that Barbour County was in fact a proper venue. Faced with that position advanced by the plaintiff, and having no guarantee that it would prevail against the plaintiffs own position that venue in Barbour County was proper, Michelin simply found it prudent to assert and prepare an alternative basis for transfer of the action, i.e., forum non conveniens. See, e.g., National Sec. Ins., 727 So.2d at 789 (defendant filed a motion to dismiss or to transfer the action “based on improper venue and on the doctrine of forum non conveniens,” though only one could apply).

In short, Michelin consistently preserved its right to file a timely motion for a change of venue in each of MNA’s and MARC’s answers to Seaborn’s complaint and amended complaints. It then engaged in discovery aimed at supporting such a motion. Upon completion of that discovery, it filed a motion for a change of venue on the alternative bases of improper venue and forum non conveniens. Seaborn has conceded in the circuit court and on appeal that venue is improper in Barbour County, and the circuit court noted in its order that there was no evidence indicating that venue was proper in Barbour County at the time the action was filed. Under these circumstances, we conclude that Micheliris motion for a change of venue was not untimely and that the circuit court erred in denying Micheliris motion on that basis.

IV. Conclusion

Because we conclude that Michelin carried its burden of demonstrating that venue was improper in Barbour County at the commencement of this action, and because Michelin did not waive its objection to improper venue, we grant Michelin’s petition for a writ of mandamus. The circuit court is ordered to transfer the action to a proper venue.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and STUART and BOLIN, JJ., concur.

LYONS, J., concurs specially.

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I write specially to observe that there is room for improvement in the clarity of Rule 82(d)(2)(C)(iii) (“A defense of improper venue under this rule is waived if a motion to transfer is not served within the time limits of subsections (d)(2)(C)(i)-(ii) of this rule.”) (Emphasis added.) Does the emphasized portion refer to Rule 82(d) in its entirety, thereby including Rule 82(d)(1), which addresses improper venue as of the commencement of the action, or only to Rule 82(d)(2), which addresses improper venue arising after commencement of the action?

I plead guilty to contributing to the confusion because I, as a member of the Advisory Committee on the Alabama Rules of Civil Procedure, had the laboring oar in drafting this portion of Rule 82, added by amendment in 1982. It never occurred to me that the waiver provided for in Rule 82(d)(2)(C)(iii) would apply beyond the circumstances of Rule 82(d) (2) (C) (i)-(ii), dealing exclusively with improper venue arising after the commencement of the action. My recollection is corroborated by the Committee Comments to Rule 82 as Amended Effective March 1, 1982, which I also wrote, stating, “So as to eliminate any potential for abuse by reason of undue delay in seeking a transfer which becomes available under Rule 82(d)(2), certain time limits in which action must be taken are prescribed by Rule 82(d)(2)(C).” (Emphasis added.) Ex parte Movie Gallery, Inc., 31 So.3d 104 (Ala.2009), is consistent with the foregoing view limiting the applicability of Rule 82(d)(2)(C)(iii) to circumstances where venue becomes improper after commencement of the action, the subject matter of Rule 82(d)(2). For the sake of clarity, I recommend that the Advisory Committee on the Alabama Rules of Civil Procedure consider amending Rule 82(d)(2)(C)(iii) to read as follows:

“(iii) Waiver. A defense of improper venue under subdivision (d)(2) of this rule is waived if a motion to transfer is not served within the time limits of subsections (d)(2)(C)(i)-(ii).”

      . Effective January 1, 2008, MARC and MNA merged. The surviving entity is MNA; MARC now operates as a division of MNA under the name Michelin Americas Research Company.

      . Seaborn is an attorney who resides in Clayton. He was appointed special administrator ad colligendum of Lopez's estate by the Barbour County Probate Court. All Lopez's heirs live in Mexico.

      .Lopez purchased the vehicle from Middle Tennessee Imports. Middle Tennessee Imports was subsequently dismissed from the action.

      . Section 6-3-7(a)(3), Ala.Code 1975, provides, in part:
      "(a) All civil actions against corporations may be brought in any of the following counties:

      "(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence....”

      . MNA operated a tire-manufacturing facility in Tuscaloosa.

      . Section 6-3-21.1(a), Ala.Code 1975, provides, in pertinent part:
      "With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

      . The parties had conducted some written discovery, and Michelin had deposed several emergency responders who were present at the scene of the accident. Seaborn had not yet been deposed, and neither party had disclosed expert witnesses. In its brief, Miehelin explains that, after answering the complaint, it "conducted preliminary discovery to support a motion to transfer on alternative grounds of improper venue and forum non conveniens. [Miehelin] served discovery, deposed several witnesses who responded to the scene of the accident, and obtained affidavits supporting forum non conveniens grounds for transfer.” Seaborn does not dispute this characterization.

      . The circuit court does not state the benchmark from which the 30 days began to run, but presumably it meant 30 days from the filing of the complaint.

      . Ex parte Maness, 386 So.2d 429 (Ala.1980), cited by Seaborn, is likewise distinguishable. In Maness, the Court concluded that “defendants’ motion for change of venue was not made until ten months after their pleadings. It was, therefore, waived.” 386 So.2d at 431. Unlike Michelin in this case, however, the defendant in Maness did not raise the defense of improper venue in its pleadings.

      . Because we conclude that Michelin’s motion to transfer the action based on improper venue was well taken, we pretermit any discussion of the parties’ arguments concerning Michelin’s alternative argument that the action was due to be transferred based on the doctrine of forum non conveniens.


source: Caselaw Access Project

author: COBB, Chief Justice.

license: Public Domain

text:
    Shelley Simons Ernstberger LAUTERBACH v. GORDON, DANA, STILL, KNIGHT & GILMORE, LLC.
    1090953.
    Supreme Court of Alabama.
    Aug. 13, 2010.

      Steven D. Eversole, Birmingham, for appellant.
    John G. Dana of Gordon, Dana, Knight & Gilmore, LLC, Birmingham, for appel-lee.
   COBB, Chief Justice.

This appeal is from a default judgment in an action filed by the law firm Gordon, Dana, Still, Knight & Gilmore, LLC (“GDSKG”), to recover attorney fees from its former client, Shelley Simons Ernstber-ger Lauterbach. We dismiss the appeal for lack of jurisdiction.

Facts and Procedural History

On January 27, 2009, GDSKG sued Lau-terbach, alleging that Lauterbach had failed to pay GDSKG for legal services it had rendered in conjunction with Lauter-bach’s divorce. GDSKG sought to recover based on breach of contract or, in the alternative, under the equitable theories of “quantum meruit, unjust enrichment, restitution, and the like.”

On March 12, 2009, GDSKG filed an application for the entry of default and a motion for a default judgment. On April 14, 2009, the trial court issued an order granting the motion for a default judgment and entering a default judgment. On May 6, 2009, Lauterbach moved to set aside the default judgment on the ground that the attorney fees she was charged by GDSKG were excessive and unreasonable. The trial court held a hearing on the motion on June 2, 2009. After the June 2, 2009, hearing, further filings and hearings ensued, none of which reflected an agreement on the record by the parties to extend the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P., for ruling on Lauter-bach’s motion to set aside the default judgment.

On November 13, 2009, the trial court entered an order purporting to deny Lau-terbach’s motion to set aside the default judgment. On December 15, 2009, Lau-terbach filed a notice of appeal from the trial court’s November 13, 2009, order.

Standard of Review

“On questions of subject-matter jurisdiction, this Court is not limited by the parties’ arguments or by the legal conclusions of the trial and intermediate appellate courts regarding the existence of jurisdiction. Rather, we are obligated to dismiss an appeal if, for any reason, jurisdiction does not exist. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983) (‘Lack of subject-matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.’ (citing City of Huntsville v. Miller, 271 Ala. 687, 688, 127 So.2d 606, 608 (1958))).”

Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 894-95 (Ala.2008).

Analysis

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

“No postjudgment 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.”

Rule 59.1 “expressly places motions to set aside default judgments under Rule 55(c) within this rule’s policy of automatic denial after 90 days.” Committee Comments to Amendment Effective March 1, 1984, to Rule 59.1, Ala. R. Civ. P. Thus, Lauterbach’s motion to set aside the judgment of default was denied by operation of Rule 59.1 on August 4, 2009. Therefore, to be timely, Lauterbach’s notice of appeal would have to be filed within 42 days of August 4, 2009. Accordingly, September 15, 2009, was the last day on which Lauter-baeh could have timely filed her notice of appeal. Lauterbach’s December 15, 2009, notice of appeal thus was untimely.

“The filing of a timely notice of appeal is a jurisdictional act.” Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522, 529 (Ala.2007) (citing Lewis v. State, 463 So.2d 154, 155 (Ala.1985)). “An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” Rule 2(a)(1), Ala. R.App. P. See also Ex parte Alabama Dep’t of Human Res., 999 So.2d at 895 (“[W]e are obligated to dismiss an appeal if, for any reason, [subject-matter] jurisdiction does not exist.” (citing Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983))).

Therefore, we dismiss this appeal for lack of jurisdiction. See Rule 2(a), Ala. R.App. P. (mandating the dismissal of any appeal when the notice of appeal is not timely filed to invoke appellate jurisdiction); Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200 (Ala.2009) (dismissing an appeal not filed within 42 days of the denial of a postjudgment motion by operation of Rule 59.1, Ala. R. Civ. P.).

APPEAL DISMISSED.

WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . No default was entered before the judgment of default was entered. See Rule 55(a), Ala. R. Civ. P.

      . See Rule 4(a)(1) and (3), Ala. R.App. P.:
      "(1) ... [I]n all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal ... shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from....

      "(3) ... If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”


author: MURDOCK, Justice.

text:
    Willie HORNE et al. v. TGM ASSOCIATES, L.P., et al.
    1070766.
    Supreme Court of Alabama.
    Aug. 20, 2010.

      Joseph E. Carr IV and Adam Bourne of Legal Services Alabama, Inc., Mobile; and Kenneth J. Lay, Legal Services Alabama, Inc., Birmingham; and Lee L. Hale, Jr., Mobile, for appellants.
    Carroll H. Sullivan and James E. Robertson, Jr., of Scott, Sullivan, Streetman & Fox, P.C., Mobile, for appellee.
   MURDOCK, Justice.

Willie Home and 44 other former tenants of the Harbor Landing apartment complex (“Harbor Landing”) appeal from a summary judgment entered by the Mobile Circuit Court on their claims of breach of contract, wrongful eviction, breach of the covenant of quiet enjoyment, conversion, fraudulent suppression, and intentional infliction of emotional distress or the tort of outrage against TGM Associates, L.P., the entity that managed the complex (“TGM Associates”), TGM Harbor Landing, Inc., the owner of Harbor Landing (“TGM Harbor Landing”), and several other defendants. We affirm in part, reverse in part, and remand.

I. Facts and Procedural History

Harbor Landing consisted of a 200-unit complex that comprised IB two-story apartment buildings, an office, and a common area containing a swimming pool, tennis courts, and basketball courts. The complex fronted Mobile Bay to the west and the mouth of Dog River to the north. TGM Associates operated the complex pursuant to a 1995 management agreement with TGM Harbor Landing. All but 7 of the plaintiffs in this action rented apartments in buildings 8 through 13 of the complex.

Paragraph 13 of the lease agreement signed by every tenant residing at Harbor Landing provided, in pertinent part:

“13. STRUCTURAL DAMAGE: If the leased premises, or the building in which the leased premises is located shall be damaged by fire or by other unforeseen events, without fault of the lessee, then, and in that event, the lessor shall have the option to decide whether the lessor shall or shall not repair and restore said building or leased premises to their original shape; and if the lessor decides to repair and restore the building or the rented premises as aforesaid, then, from the time such damages occur until the repairs are completed, an equitable abatement of the monthly installments will be allowed. It is agreed, however, that if the damage is such as not to render the leased premises uninhabitable for the purpose for which they are rented, then there shall be no abatement of the rent while the repairs are being made.”

Paragraph 15 of the lease agreement provided, in pertinent part:

“15. TERMINATING LEASE: If either the Lessee or [TGM Associates] desires that this lease terminate at the expiration of its term, including month to month tenancy, one must give to the other WRITTEN NOTICE TO BE RECEIVED NOT LESS THAN THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE LEASE TERM. If the written notice is given less than thirty (30) days prior to the expiration date, the Lessee’s obligation to pay rent shall extend to the number of days required to fulfill the thirty (30) day notice period.”

(Capitalization in original.)

In the early morning of August 29, 2005, Hurricane Katrina made landfall as a category 5 hurricane near the Louisiana-Mississippi border. Hurricane Katrina inflicted substantial damage to Harbor Landing, resulting in the condemnation of buildings 1 through 7 in the complex.

Immediately after Hurricane Katrina, TGM Associates, which maintains its headquarters in New York, dispatched teams to help the residents of Harbor Landing, to make damage assessments, and to determine whether the complex could remain open. The record indicates, and the plaintiffs do not dispute, that TGM Associates spent over $200,000 at Harbor Landing in the first month following Hurricane Katrina to clean up debris, to remove excess water from the property, to hire security guards, and to provide direct aid to the residents of the complex.

On August 31, 2005, TGM Associates sent a notice to all the residents of Harbor Landing informing them that TGM Associates was offering each of them a “$500 relocation gift check ... to help during these hard times.” All the plaintiffs accepted these “relocation gift” checks, and each signed a document “acknowledging] the receipt of the above referenced relocation gift in the amount of $500.” TGM Associates also informed the residents in early September that no rent would be charged in September.

On September 8, 2005, TGM Associates provided written notice to the occupants of buildings 1 through 7 that they must vacate them apartments immediately, which they did. The trial court found, and the parties do not dispute, that the units in buildings 8 through 13 sustained varying degrees of damage, but that all of those units were habitable after Hurricane Katrina.

On September 28, 2005, TGM Associates issued a “Lease Termination Notice” to the remaining tenants at Harbor Landing, including the plaintiffs still residing in buildings 8 through 13. The termination notice stated that because Harbor Landing had “sustained significant structural damage caused by Hurricane Katrina,” TGM Associates judged every apartment in the complex to be “uninhabitable.” Consequently, the termination notice stated that each resident’s lease agreement “will terminate ten (10) days from the date hereof,” 1.e., October 8, 2005. The residents were ordered to “surrender possession of the premises ten (10) days from the date of this notice” and to “remove all personal property from the premises and surrender the keys within the time allowed in this notice.” The termination notice informed residents that “[u]pon timely surrender of possession of the premises, your security deposit will be refunded to you.”

Deposition testimony in the record reveals that before the termination notice was issued, a few of the plaintiffs had been told by TGM Associates’ staff members at Harbor Landing that they would not have to move out of their apartments. When some of the plaintiffs questioned TGM Associates’ staff members at Harbor Landing about the termination notice, at least six of them were told that, if they did not vacate their apartments by October 8, 2005, they would be arrested for criminal trespass, their personal property would be forcibly removed from them apartments, and/or their credit would be ruined by the process of eviction.

On September 29, 2005, the toilet in the apartment of one of the plaintiffs, James Williams, who resided in building 8, was overflowing with raw sewage. Williams went outside and unscrewed an overflow valve adjacent to building 8, which caused raw sewage to flow throughout buildings 8 and 9. The Mobile County Health Department issued an immediate evacuation order for residents in those two buildings as a result of the health hazard caused by the release of the raw sewage. The evacuation order informed residents in buildings 8 and 9 that efforts would be made to “remediate the current threat to public health” so that residents would have “the opportunity to return to these complexes and retrieve their belongings prior to the lease termination date, October 8, 2005.”

As the trial court related in its summary-judgment order:

“Every plaintiff in this case departed by the scheduled October 8 date, with the exception of Willie Home and Demetrius Dudley, who voluntarily left the next day. TGM [Associates] did not initiate eviction proceedings against any of the plaintiffs. The plaintiffs turned in their keys and received a full refund of their original security deposits, with the exception of several plaintiffs who owed back rent.”

Each of the plaintiffs who received a security deposit signed a receipt acknowledging that he or she was “entitled to receive the return of the security deposit” and had “received the security deposit check in the amount detailed above.”

On December 13, 2005, the plaintiffs filed this action against TGM Associates, TGM Harbor Landing, several employees of TGM Associates, and others, alleging breach of contract, wrongful eviction, breach of the covenant of quiet enjoyment, trespass, conversion, fraud, and intentional infliction of emotional distress or the tort of outrage. The plaintiffs acknowledged that they vacated the premises within the time stipulated in the termination notice, but they alleged that they did so only because they were threatened by the staff of TGM Associates with lockouts, utility cutoffs, the forfeiture of personal belongings, loss of security deposits, injury to their credit, and/or arrest for criminal trespass. They also alleged that staff members of TGM Associates told several of the plaintiffs that they would not have to move out of their apartments, and, as a result, those plaintiffs did not attempt to find alternate living arrangements between August 31, 2005, and the date of the termination notice, September 28, 2005.

On April 20, 2007, the defendants filed a motion for a summary judgment as to all claims. The plaintiffs filed a response, and the trial court held a hearing on the motion on July 13, 2007. Following the hearing, the trial court entered an order on September 25, 2007, granting the defendants’ motion for a summary judgment as to all claims. On October 25, 2007, the plaintiffs filed a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the judgment, which the trial court denied on January 22, 2008. The plaintiffs appeal the summary judgment against them on all claims except their claim alleging trespass.

II. Standard of Review

“The standard by which this Court will review a motion for summary judgment is well established:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (AJa.1989); § 12 — 21—12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).’ ”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

III. Analysis

The arguments presented by the plaintiffs on appeal refer only to the circumstances faced by those plaintiffs who resided in buildings 8 through 13. The trial court’s judgment therefore is affirmed as it relates to the plaintiffs who resided in buildings 1 through 7. The balance of the analysis as set forth below is provided, therefore, only in reference to those plaintiffs who resided in buildings 8 through 13. Likewise, except as expressly noted, references hereinafter to the plaintiffs are references to those plaintiffs who resided in buildings 8 through 13.

A. Breach of Contract

The plaintiffs first contend, as they did before the trial court, that TGM Associates breached their lease agreements by issuing the 10-day termination notice despite the fact that paragraph 15 of the lease agreement requires notice of at least 30 days by either party wishing to terminate the lease. The defendants’ first response, as it was before the trial court, is that paragraph 13 of the lease agreement authorized TGM Associates to determine that each of the buildings at Harbor Landing was uninhabitable and, therefore, that early termination of the leases was permissible under the lease agreement.

The trial court noted that paragraph 13 “entitled TGM [Associates] to determine, following [Hurricane] Katrina, whether or not to repair the plaintiffs’ units.” The trial court admitted, however, that paragraph 13 was “silent on what would occur in a situation such as that presented in Katrina,” where half of the apartment buildings were practically destroyed. The trial court concluded that “the only reasonable meaning of [paragraph 13 of the lease is that following an unforseen disaster of Katrina’s magnitude, which destroyed a large portion of the Harbor Landing complex and left the remainder subject to health and safety issues, TGM [Associates] could terminate the leases.” The trial court cited the spillage of raw sewage that occurred in buildings 8 and 9 the day after TGM Associates issued its termination notice as “evidence to support [TGM Associates’] decision to terminate the leases.”

“It is well settled that lease agreements are contracts and that the general principles of contract construction apply in ascertaining the scope and meaning of a lease agreement.” Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1098 (Ala.2003). A contract “ ‘ “must be given effect, if at all, according to its plain and inescapable meaning.”’” James A. Head & Co. v. Rolling, 265 Ala. 328, 338, 90 So.2d 828, 836 (1956) (quoting Oates v. Lee, 222 Ala. 506, 507, 133 So. 44, 45 (1931), quoting in turn Union Central Relief Ass’n v. Thomas, 213 Ala. 666, 667, 106 So. 133, 134 (1925)). Moreover, where the terms of a contract are “plain and unambiguous, there is no room for interpretation, and the parties thereto ‘may stand upon the letter’ of the contract.” Dunlap v. Macke, 233 Ala. 297, 300, 171 So. 721, 724 (1937).

The trial court’s interpretation of paragraph 13 of the lease agreement ignores the plain meaning of the provision. Paragraph 13 provides, in part, that

“[i]f the leased premises, or the building in which the leased premises is located shall be damaged by fire or by other unforeseen events, without fault of the lessee, then, and in that event, the lessor shall have the option to decide whether the lessor shall or shall not repair and restore said building or leased premises to their original shape.... ”

Paragraph 13 clearly addresses the lessor’s right to elect to repair or not to repair with respect to an apartment within a building or with respect to a building within the apartment complex. It does not provide TGM Associates the right to elect to repair or not to repair with respect to the entire apartment complex. As the trial court itself noted, paragraph 13 is silent in that respect. The trial court essentially inserted a clause into paragraph 13 that permits TGM Associates to terminate the leases of all tenants in the complex at its election because Hurricane Katrina caused severe damage to portions of the apartment complex. It did so despite acknowledging the undisputed fact that the apartments in buildings 8 through 13 were habitable in the aftermath of Hurricane Katrina. In short, the trial court failed to give effect to paragraph 13 according to its plain meaning.

To some degree, the trial court’s interpretation of the lease agreement and the defendants’ first argument regarding the plaintiffs’ breach-of-contract claim rely on the fact that Hurricane Katrina was a catastrophic event not accounted for in the ordinary course of business of the landlord-tenant relationship. In essence, the defendants contend that Hurricane Katrina provided TGM Associates with a bona fide.legal reason to terminate the plaintiffs’ leases early. The trial court stated— and the defendants argue on appeal — that, under the circumstances created by Hurricane Katrina, “if TGM [Associates] sought to enforce a tenant’s lease when he or she wished to cancel it, this Court would have concluded that the lessee had the right to terminate the lease.” The implication is that the converse also ought to be true, i.e., that under these circumstances TGM Associates had the right to invoke early termination of its lease agreements with the plaintiffs.

The premise of the defendants’ argument and the trial court’s reasoning does not accurately reflect Alabama law, however. Indeed, the very reason paragraph 13 exists in the lease agreement is that, without such a provision, lessees like the plaintiffs would remain responsible for paying rent on their leases after an event like a hurricane, precisely because their apartments were not destroyed.

“ ‘The settled rule is that a lessee of premises destroyed during the term by unavoidable accident is not relieved from an express promise or covenant to pay rent, unless he protects himself by a stipulation that the rent shall cease in such event, or unless the lessor covenants to rebuild or repair, or unless the destruction is of the entire subject-matter of the lease, so that nothing remains capable of being held or enjoyed, which operates a dissolution of the tenancy.’ ”

Brown v. Williams, 576 So.2d 195, 197 (Ala.1991) (quoting Cook v. Anderson, 85 Ala. 99, 103, 4 So. 713, 714 (1887)) (citations and some emphasis omitted; other emphasis added). See also Pizitz-Smolian Co-op. Stores v. Randolph, 221 Ala. 458, 464, 129 So. 26, 31-32 (1930) (noting the general rule that the lessee of premises destroyed by an unavoidable accident is not relieved from an express covenant to pay rent (subject to an agreement otherwise), but noting “well-recognized exceptions, such as where the sole subject-matter of the lease is an apartment, room, or building, without interest in the land other than the right of subjacent support, and the entire subject-matter of the lease is destroyed so that nothing remains capable of being held or enjoyed, rendering performance impossible....” (citations omitted)).

Although it is true that Hurricane Katrina was an unusual weather event in terms of the scale of the damage it caused, TGM Associates could have accounted for the occurrence of the partial destruction of the apartment complex in its lease agreements just as it accounted for damage sustained to a building or an apartment. It did not do so, and a court cannot change the lease agreement after the fact to justify the landlord’s action.

The trial court held, in the alternative, that the plaintiffs terminated their leases by their own actions and, therefore, that them breach-of-contract claim cannot be sustained. For support of this holding, the trial court cited a provision of the lease agreements titled “Security Deposit Return,” which provided in part that TGM Associates was not obligated to refund a lessee’s security deposit until “the full term of the lease has expired” and “[a]ll keys are returned.” It then noted that the plaintiffs who were eligible received full refunds of their security deposits and all the plaintiffs turned in their keys and vacated their apartments by the date provided in the termination notice or the day after that date.

The fact that the “Security Deposit Return” provision of the lease agreement provided that TGM Associates “shall not be obligated to release the Security Deposit” unless certain conditions were met does not, however, prohibit TGM Associates from choosing to refund tenants’ security deposits without all the listed conditions being met. The “Security Deposit Return” provision does not operate as a lease-termination provision. It simply spells out the conditions under which TGM Associates legally must refund a lessee’s security deposit.

More generally, the mere fact that the plaintiffs accepted the return of their security deposits and moved out of their apartments does not necessarily mean that they voluntarily terminated their leases. In essence, the trial court in its alternate holding concerning the breach-of-contract claim concluded that the plaintiffs, by accepting their security deposits and vacating their apartments, waived TGM Associates’ breach of the lease agreement resulting from its early termination notice. But “[a] waiver consists of a ‘voluntary and intentional surrender or relinquishment of a known right,’ Dominex, Inc. v. Key, 456 So.2d 1047, 1058 (Ala.1984), and the burden of proof in establishing a waiver rests upon the party asserting the claim.” Bentley Sys., Inc. v. Intergraph Corp., 922 So.2d 61, 93 (Ala.2005). Moreover, whether a party has voluntarily or intentionally waived a known right is normally a jury question. See Edwards v. Allied Home Mortgage Capital Corp., 962 So.2d 194, 209 (Ala.2007).

The receipt signed by plaintiffs acknowledging that they received their security deposits does not state in any way that the recipient was waiving any possible contractual breach by TGM Associates. No provision in the lease agreement, including the “Security Deposit Return” provision, states that by accepting his or her security deposit and vacating the premises a lessee waives any possible breach of the lease agreement by the lessor. Thus, the record as a whole indicates that a genuine issue of material fact exists as to whether, by vacating their apartments by the deadline given in the termination notice, the plaintiffs intentionally waived the alleged breach of the lease agreement committed by TGM Associates when it issued the 10-day notice of termination.

B. Wrongful Eviction

The plaintiffs contend that the trial court erred in entering a summary judgment in favor of the defendants on the plaintiffs’ claim alleging wrongful eviction. Specifically, the plaintiffs contend that TGM Associates violated the eviction statutes in force at the time — the unlawful-detainer statutes, § 6-6-310 et seq., Ala. Code 1975, and the Sanderson Act, § 35-9-80 et seq., Ala.Code 1975.

The unlawful-detainer statutes permit a landlord to recover double the annual rent from a tenant who “forcibly or unlawfully retains possession” of a tenement “after the expiration of his term or refuses to surrender the same on the written demand of lessor-” § 6-6-314, Ala.Code 1975. The Sanderson Act, in force at the time, “serve[d] essentially the same function as an ejectment action — it providefd] a landlord with a means to evict a tenant wrongfully detaining possession.” Ex parte Moore, 880 So.2d 1131, 1138 (Ala.2003). It applied “[i]n all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or after his right of possession has terminated or been forfeited....” § 35-9-80, Ala.Code 1975.

As we noted in the rendition of the facts, none of the plaintiffs forcefully held over or retained possession of their apartments more than a day after the deadline set in the termination notice, and TGM Associates never initiated eviction proceedings against any of the plaintiffs. Therefore, there was not, and could not be, a violation of the eviction statutes at issue. Therefore, the trial court correctly entered a summary judgment in favor of the defendants as to this claim.

C. Breach of the Covenant of Quiet Enjoyment

The plaintiffs alleged in their complaint that the defendants “unilaterally, willfully, and non-judicially engaged in self-help eviction of plaintiffs from their homes and, perforce, necessarily interfered with their peaceful enjoyment of same.... As such, defendants constructively evicted plaintiffs.” The trial court concluded that the defendants’ action

“does not rise to the level of construc-ti[ve] eviction, which occurs when the landlord’s actions do not result in the actual dispossession of the tenant. Had TGM [Associates] created a nuisance to force out the plaintiffs without issuing the ten-day notice to quit, such an action may have constituted a constructive eviction, but such did not occur.”

(Citations omitted.)

In reaching this conclusion, the trial court failed to acknowledge the full nature of the allegations in the complaint, particularly the plaintiffs’ allegation that the defendants’ “interfered with their peaceful enjoyment” of the leased premises.

Concerning the covenant of quiet enjoyment, the plaintiffs rely upon this Court’s decision in Johnson v. Northpointe Apartments, 744 So.2d 899 (Ala.1999). In Johnson, this Court explained the covenant of quiet enjoyment as follows:

“ ‘It is both a covenant and a warranty. The landlord warrants that the tenant will not be disturbed in possession by any other person with a superior legal right to possession.’ [Roger Cunningham, William Stoebuck, & Dale Whitman, The Law of Property § 6.30, pp. 292-93 (1984) ] (footnote omitted); see also Abrams v. Watson, 59 Ala. 524 (1877). ‘Moreover, the landlord covenants not to evict the tenant himself, actually or constructively. Thus, the covenant is breached ... if, during his term, the tenant is disturbed by a third person or by the landlord.’ Cunningham, Stoebuck, & Whitman, supra, at § 6.30, p. 293.... ‘A breach of the covenant of quiet enjoyment occurs when the landlord substantially interferes with the tenant’s beneficial use or enjoyment of the premises.’ Echo Consulting Servs., Inc. v. North Conway Bank, 140 N.H. 566, 669 A.2d 227 (1995) (citing 2 R. Powell, Powell on Real Property ¶ 232[1] (1994)). ‘Even if not substantial enough to rise to the level of a constructive eviction ..., such interference may constitute a breach of the covenant of quiet enjoyment entitling the tenant to damages.’ Id.”

Johnson, 744 So.2d at 902 (emphasis omitted).

In Johnson, Keith Johnson and his wife Renee were leasing an apartment from Northpointe Apartments in Saraland (“Northpointe”) on a month-to-month basis. They had paid their rent through May 31,1996. On the night of May 19, the Johnsons became involved in a domestic dispute, and Keith Johnson was arrested. On May 20, Renee Johnson signed a “Notice to Vacate” the apartment. Because a provision of the lease agreement required a 30-day notice to vacate, Renee Johnson and the manager at Northpointe agreed to backdate the notice to May 1, 1996, so Renee Johnson would not have to pay additional rent beyond the rent already paid to lease the apartment through May 31. Renee Johnson vacated the apartment a few days later.

On May 24,1996, the manager at North-pointe ordered a Northpointe employee to remove the remaining personal property in the apartment and to place it in the “breezeway” of the apartment complex. The Northpointe manager then telephoned Keith Johnson and informed him that his personal belongings had been removed from the apartment and that if he did not have them picked up by the end of the business day, Northpointe would not be responsible for them. The manager also told Keith Johnson that he could not retrieve the property personally because he was not allowed on the premises and that he would be arrested if he showed up on complex property. When a friend of Keith Johnson’s arrived to pick up Johnson’s belongings, the manager “presented him with ‘a couple of garbage sacks’ of clothes and assorted items, one three-piece sofa, and a mattress.” 744 So.2d at 901. The friend then sought entrance into the Johnsons’ apartment, but the manager denied him access.

Keith Johnson subsequently sued Northpointe, alleging, among other things, breach of contract for “ ‘denying [him] his right of possession of the leased property for eleven days,’ and, ‘by interfering with [his] covenant of quiet enjoyment of the leased property.’ ” 744 So.2d at 902. The trial court entered a summary judgment in favor of Northpointe. This Court reversed the trial court’s judgment as to the breach-of-contract claim, explaining:

“Pursuant to the backdated Notice, the Johnsons’ tenancy period did not terminate until May 31. Northpointe does not — indeed, could not — contend that it had a right to interfere with Renee’s right of possession before the lease terminated on May 31. This is so because, as we noted earlier in this opinion, the lease contract prohibited North-pointe from terminating a tenancy without a 30-day pretermination notice. In other words, Northpointe could not have demanded that Renee vacate the premises before May 31....

Johnson v. Northpointe Apartments, 744 So.2d at 902 (some emphasis omitted; final emphasis added).

The Court in Johnson concluded that the covenant of quiet enjoyment is breached “by threats or other forms of intimidation before the expiration of the tenancy.” 744 So.2d at 902. In the present case, the plaintiffs presented uncontra-dicted evidence that staff members at Harbor Landing threatened at least six of them with arrest, the removal of their property, and/or ruining their credit if they did not leave the premises by October 8, 2005, a date earlier than the expiration of their tenancies. Under Johnson, the plaintiffs presented substantial evidence that TGM Associates interfered with the plaintiffs’ right to quiet enjoyment through the 10-day termination notice and ensuing threats that led them to vacate their apartments. Accordingly, the trial court erred in entering a summary judgment for the defendants as to this count of the complaint.

D. Conversion

The trial court entered a summary judgment for the defendants on the plaintiffs’ conversion claim because it found that the “defendants gave plaintiffs ample opportunity to remove their possessions from the lease premises, both before and after the October 8 deadline” and because the plaintiffs did not present substantial evidence of a demand by the plaintiffs for their property and a refusal by TGM Associates to allow the plaintiffs to recover their property.

“To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, an illegal assumption of ownership, or an illegal use or misuse of another’s property. Covington v. Exxon Co. U.S.A., 551 So.2d 935, 938 (Ala.1989). ‘The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiffs rights, where said plaintiff has general or special title to the property or the immediate right to possession.’ Ott v. Fox, 362 So.2d 836 (Ala.1978) (emphasis added).”

Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 804-05 (Ala.1991).

We have already determined that the plaintiffs presented substantial evidence that the defendants breached the lease agreement through the early termination notice and related actions. The plaintiffs also presented evidence indicating that TGM Associates gained possession of personal property left behind by some of the plaintiffs as a result of the early termination. Therefore, a genuine issue of fact was presented as to whether the defendants wrongfully took possession of the personal property left behind by the plaintiffs.

The defendants contend that the deposition testimony of the vast majority of the plaintiffs demonstrates that they either did not want the property they left behind or that they did not demand that TGM Associates return the property.

“[Abandonment is a defense to an action for conversion. However, in Alabama, there is ‘a presumption that one does not intend to abandon’ property of value. ‘Abandonment of property requires intent plus an act. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession.’ Obviously, ‘[a] determination of abandonment is a finding of fact.’ ”

Johnson, 744 So.2d at 905 (citations omitted). Although it is true that some of the plaintiffs testified that they did not care whether their property was returned, others stated that they did want their property returned. At the very least, a factual dispute exists concerning whether some of the plaintiffs had abandoned their property-

As for the failure of some of the plaintiffs to demand their property: “‘A demand is not necessary when there has been a wrongful taking or an exercise of dominion and control over the property inconsistent with the rights of the owner.’ ” Citizens Bank, Enterprise v. Coffee County Bank, Enterprise, 431 So.2d 1203, 1207 (Ala.1983) (quoting Southeastern Mach. Co. v. Tarpley, 398 So.2d 700, 702 (Ala.Civ.App.1981), cert. denied, 398 So.2d 703 (Ala.1981)) (emphasis added). Thus, because the plaintiffs presented substantial evidence that the defendants wrongfully took dominion and control of their personal property, they were not required to demand its return in order to maintain their conversion claim. Accordingly, the trial court erred in entering a summary judgment for the defendants as to the plaintiffs’ claim alleging conversion of their personal property.

E. Fraudulent Suppression

The plaintiffs contend that before the defendants issued the termination notice on September 28, 2005, the defendants fraudulently misrepresented to the plaintiffs that they would be allowed to continue living in their apartments. Inherent in this contention is an allegation that the defendants knew that the plaintiffs would not be allowed to stay in their apartments, yet TGM Associates purposefully or recklessly told at least some of the plaintiffs that they would be able to remain living in their apartments in the aftermath of Hurricane Katrina. The plaintiffs claim that the defendants had decided even before Hurricane Katrina to cease operating Harbor Landing and to sell the property to the highest bidder and that the defendants used Hurricane Katrina as an excuse to effectuate this plan more expeditiously.

The Court finds the plaintiffs’ claim concerning the sale of Harbor Landing to be mere speculation for which the plaintiffs lack substantial evidence. Indeed, as the trial court observed, the fact that the defendants spent over $200,000 in the month after Hurricane Katrina to clean up Harbor Landing and to provide aid to tenants starkly undercuts the plaintiffs’ theory that the defendants used the occurrence of Hurricane Katrina to speed up their supposed plan to liquidate the Harbor Landing property as soon as possible. Even the fact — not considered by the trial court in making its ruling — that the property on which Harbor Landing resided eventually was sold does not help the plaintiffs in this regard, because it may merely demonstrate that the apartment complex eventually was deemed not worth repairing in the wake of Hurricane Katrina.

As the trial court explained, the claim that the defendants’ surreptitiously planned to terminate the lease agreements

“required plaintiffs to submit substantial evidence that TGM [Associates] had a duty to disclose as soon as it determined to terminate the leases; that TGM [Associates] concealed this material fact from the plaintiffs; that by concealing . this from plaintiffs, TGM [Associates] induced plaintiffs to stay at Harbor Landing rather than seek alternative accommodations; and that because of this concealment the plaintiffs were injured by not having more time to look for new living arrangements. Auto-Owners Ins. Co. v. Abston, 822 So.2d [1187, 1197 (Ala.2001) ], citing Foremost Ins. Co. v. Parham, 693 So.2d 409, 423 (Ala.1997). In the absence of any substantial evidence that TGM [Associates] withheld any material information from the plaintiffs concerning the lease termination, the suppression claim fails. No substantial evidence supports the allegation that TGM [Associates] or its employees on site (the individual defendants and Roderick Bonner) knew that TGM [Associates] was planning to shut down Harbor Landing on October 8, 2005 and failed to communicate it.”

We find no error in the trial court’s conclusion in this regard. The record simply does not support a finding that TGM Associates’ staff members at Harbor Landing, regardless of what they told various plaintiffs concerning whether they could stay in their apartments, knew what would happen and made misrepresentations based on that knowledge.

F. Intentional Infliction of Emotional Distress or Tort of Outrage

The trial court concluded that the actions by the defendants in this case did not rise to a level commensurate with the intentional infliction of emotional distress or the tort of outrage. The plaintiffs disagree, emphasizing the fact that the defendants’ conduct occurred in the aftermath of Hurricane Katrina.

“This Court, in 1980, recognized the tort of intentional infliction of emotional distress, or the tort of outrage, and defined the parameters for such an action:
“ ‘[0]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme. Comment, Restatement [ (Second) of Torts ], supra, at 78 [ (1948) ]. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Comment (d), Restatement, supra at 72.’
“American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). Furthermore, this Court explained:
“ ‘It should also be noted that this tort does not recognize recovery for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Comment, Restatement, supra, at 73. The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress.’
“American Road Serv. Co., 394 So.2d at 364-65.
“Thus, in order to prevail on [a] tort-of-outrage claim, [the plaintiff is] required to present substantial evidence indicating that [the defendant’s] conduct ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.’ Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041, 1043 (Ala.1993).”

Harrelson v. R.J., 882 So.2d 317, 321-22 (Ala.2003).

The plaintiffs contend that the 10-day notice of the termination of their leases coupled with the threats expressed to some of the plaintiffs that they would be arrested, their personal property would be would be forcibly removed from their apartments, and/or their credit would be ruined by the process of eviction constituted the kind of conduct actionable under a theory of intentional infliction of emotional distress or the tort of outrage. They fail to offer any analogous cases to support this contention, however.

In American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1980), the case in which this Court recognized the tort of outrage, the facts showed that the defendant-employer had “harassed, investigated without cause, humiliated, accused of improper dealings, and ultimately terminated from his job, without justification,” the plaintiff-employee. 394 So.2d at 367. Despite all of these actions, the Inmon Court still found that the defendant’s conduct was not outrageous. In Potts v. Hayes, 771 So.2d 462, 465 (Ala.2000), this Court stated that the tort of outrage is

“so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.2d 901 (Ala.1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala.1989).”

Though the defendants’ conduct may have made the plaintiffs’ lives more difficult — and, in some cases extremely difficult — the 10-day termination notice and even the threats toward some of the plaintiffs that accompanied it do not constitute conduct “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.” Inmon, 394 So.2d at 365. The trial court did not err in so finding.

IV. Conclusion

As previously stated, we affirm the summary judgment in favor of the defendants insofar as it relates to claims made by those plaintiffs who resided in buildings 1 through 7. As to those plaintiffs who resided in buildings 8 through 13, we conclude that there was introduced substantial evidence to create genuine issues of material fact as to their claims alleging breach of contract, breach of the covenant of quiet enjoyment, and conversion, and, as to those claims, we reverse the trial court’s judgment. The trial court, however, correctly entered a summary judgment in favor of the defendants as to the claims alleging wrongful eviction, fraud, and the intentional infliction of emotional distress or the tort of outrage asserted by those plaintiffs who resided in buildings 8 through 13; its judgment in that regard is affirmed. Accordingly, we affirm the summary judgment in part, reverse it in part, and remand the case to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . TGM Harbor Landing sold the property to another property-development corporation in January 2007.

      . The notice to the residents also stated that a separate form was available for each tenant to sign if the tenant decided to accept a return of his or her security deposit "and move out.”

      . Indeed, the lease agreement lists 11 such conditions, one of which is that "THIRTY DAYS written notice was given by the Lessee to the Lessor.” (Capitalization in original.) That condition clearly was not fulfilled by many of the tenants of Harbor Landing who vacated the premises in the aftermath of Hurricane Katrina, and yet TGM Associates chose to refund the security deposits of several of those tenants.

      . The acceptance of the "relocation gift” likewise does not establish an intentional waiver. The receipt signed by all the plaintiffs acknowledging that they received the "relocation gift” did not state in any way that acceptance of the gift constituted acknowledgment of a waiver of rights. Moreover, the concept of a gift is incompatible with the notion of a reciprocal obligation or waiver of rights; TGM Associates may have meant for residents to use the check toward relocation expenses, but the recipients were not legally bound to do so. In fact, the August 31, 2005, memorandum in which TGM Associates first informed tenants of Harbor Landing of the “relocation gift check” stated that the purpose of the check was simply "to help during these hard times.”

      . Sections 35-9-80 through 35-9-88, Ala. Code 1975, were repealed by Act No. 2006-316, effective January 1, 2007.

      . The inclusion of the concepts of a breach of the covenant of quiet enjoyment in the count of the complaint alleging a constructive eviction is understandable given the nexus in our law between these two concepts. See Bowdoin Square, L.L.C. v. Winn-Dixie Montgomery, Inc., 873 So.2d 1091, 1104 (Ala.2003).

      . The defendants contend that Johnson represents precedent for changing the termination date under a lease as the result of extreme circumstances, just as they did because of Hurricane Katrina. Johnson is distinguishable for several reasons, however, the most apparent being that the Court ”assum[ed] the efficacy of the back-dated Notice to terminate the tenancy under the circumstances of this case,” 744 So.2d at 902, but it did not evaluate that issue because it reversed the trial court’s ruling on the breach-of-contract claim on another basis. In other words, the Johnson Court assumed the efficacy of the backdated notice without settling whether it was, in fact, legitimate. Thus, Johnson does not provide support for TGM Associates' action of shortening the notice of termination provided in the lease agreement from 30 days to 10 days.

      . On appeal, the defendants seek to discount the testimony of some of these plaintiffs on more than one claim by noting that their leases had expired by October 8, 2005. The defendants thus contend that these plaintiffs cannot have viable claims against the defendants. Paragraph 16 of the lease agreement provides in pertinent part, however, that
      "[f]ailure of either party to give proper termination notice will automatically renew this lease for an additional term an a MONTH-TO-MONTH basis, at the month-
      “Similarly, Northpointe had no legal right to interfere with Keith’s possesso-ry interest between the time Renee relocated and May 31. Thus, a fortiori, Northpointe had no right to bar Keith’s access to his leasehold before Renee relocated. In other words, Northpointe had no right to threaten Keith with arrest if he attempted to return to the Johnsons’ apartment. To interfere with Keith’s access to his apartment by threats or other forms of intimidation before the expiration of the tenancy subjected Northpointe to liability for breach of the lease contract and for breach of the implied covenant of quiet enjoyment in particular.”
        to-month rental rate as established by the lessor, and under such circumstances, either the Lessor or the Lessee shall be required to give a thirty (30) day written notice in order to terminate the lease.”
      It is undisputed that TGM Associates did not give "proper termination notice” as provided by paragraph 15 of the lease agreement. Therefore, when the leases of some of the plaintiffs expired, they were automatically renewed on a month-to-month basis, and TGM Associates still needed to provide 30 days' notice to terminate their leases.

      . It should not be forgotten, in this regard, that the defendants permitted the plaintiffs and the rest of the tenants residing at Harbor Landing to remain in their apartments rent-free throughout September and provided all of them with the $500 "relocation gift” checks.-


author: STUART, Justice. COBB, Chief Justice

text:
    Ex parte Renaldo Chante ADAMS (In re Renaldo Chante Adams v. State of Alabama).
    1091160.
    Supreme Court of Aabama.
    Aug. 20, 2010.

      Marc R. Shapiro, Montgomery, for petitioner.
    Submitted on petitioner’s brief only.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   STUART, Justice.

WRIT DENIED. NO OPINION.

LYONS, WOODALL, SMITH, BOLIN, and MURDOCK, JJ., concur.

COBB, C.J., concurs in part and dissents in part.

PARKER and SHAW, JJ., recuse themselves.

COBB, Chief Justice

(concurring in part and dissenting in part).

I respectfully dissent from the denial of the petition for the writ of certiorari with regard to the claims of the petitioner, Re-mido Chante Adams, that he was not served with a proposed draft order the State submitted to the trial court. Adams seeks review of the Court of Criminal Appeals’ decision under Rule 39(a)(1)(D), Ala. R.App. P., on the ground that that decision conflicts with prior decisions of this Court, such as Ex parte Burgess, 21 So.3d 746, 754 (Ala.2008), recognizing that a petitioner cannot be expected to raise a claim until facts underlying the claim become known to him.

Adams filed a Rule 32, Ala. R.Crim. P., petition for postconviction relief, attacking his conviction for capital murder and his sentence of life imprisonment without the possibility of parole. The State answered and moved to dismiss Adams’s petition, arguing that Adams’s claims were procedurally barred. Adams contends that, with its response to the petition, the State also filed with the court a proposed order denying the petition, but, he says, he was not served with a copy of the proposed order. Further, he contends that he did not learn of the existence of the proposed order until he appealed the denial of the Rule 32 petition and received a copy of the record. Adams raised the issue of the State’s alleged ex parte communication on appeal, but the Court of Criminal Appeals concluded that it could not consider the issue because the issue had not been presented to the Rule 32 court in Adams’s February 11, 2008, motion to reconsider the denial of his Rule 32 petition. Adams maintains that he could not have raised the issue in his February 11, 2008, motion to reconsider because he did not learn of the facts underlying the claim until April 18, 2008, when the record on appeal was completed.

I would grant certiorari review to determine whether the record supports Adams’s claim that he was not served with the State’s proposed order and that he did not learn of the existence of the proposed order until he received a copy of the record on appeal. If the record supports that claim, then I believe this Court should reverse that part of the judgment of the Court of Criminal Appeals refusing to address the issue and instruct the Court of Criminal Appeals to consider the claim on the merits.

I do not believe that Adams has any other mechanism by which to assert the claim that he was denied the opportunity to respond to the State’s proposed order. The claim cannot be considered to be based on newly discovered evidence within the contemplation of Rule 32.1(e), Ala. R.Crim. P., because the evidence would not “require that [Adams’s] conviction or sentence be vacated.” At most, Adams would be entitled only to the opportunity to respond to the State’s proposed order. Moreover, because Rule 32 is a mechanism to gain relief from a conviction or sentence — and not to gain relief from a prior order denying an earlier Rule 32 petition— I know of no authority that would allow Adams to file a subsequent Rule 32 petition attacking a judgment in a prior Rule 32 proceeding.

I disagree that Adams should have to file another Rule 32 petition. However, because the Court has denied the petition for certiorari in this case, he has no other recourse. Under the circumstances, he should not be precluded from filing a subsequent Rule 32 petition, at least with regard to his argument that he was not served with the State’s proposed order.


author: SMITH, Justice. COBB, Chief Justice

text:
    Ex parte Johnny LUKE. (In re Johnny Luke v. State of Alabama).
    1091202.
    Supreme Court of Alabama.
    Aug. 20, 2010.
    Johnny Luke, pro se.
    Submitted on petitioner’s brief only.
   SMITH, Justice.

WRIT DENIED. NO OPINION.

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

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

The petitioner, Johnny Luke, asserts that his indictment was defective and that the alleged defects were jurisdictional. In making this argument, Luke contends that this Court should overrule Ex parte Seymour, 946 So.2d 536 (Ala.2006), in which this Court, overturned settled precedent and held that the failure to allege an essential element of an offense in an indictment is not a jurisdictional defect. Ex parte Seymour was wrongly decided, as noted in my dissent in A.L.L. v. State, 42 So.3d 146, 153 (Ala.2009) (Cobb, C.J., dissenting), and as further discussed by Justice Murdock in his dissent in the same case, 42 So.3d at 157 (Murdock, J., dissenting). See also Ex parte Miller, 41 So.3d 54, 55 (Ala.2009) (Cobb, C.J., dissenting). “Seymour’s, most glaring defect is that it abrogates an express provision of the Alabama Constitution: ‘No person shall for any indictable offense be proceeded against criminally by information.... ’ Ala. Const.1901, Art. I, § 8.” A.L.L., 42 So.3d at 153 n. 5 (Cobb, C.J., dissenting). I believe this Court should grant the writ in this case and revisit Ex parte Seymour.


author: PITTMAN, Judge.

text:
    Tiffany E. HARDY v. Cedric L. WEATHERS.
    2080803.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Andriette W. Rowell of Legal Services Alabama, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

Tiffany E. Hardy (“the mother”) appeals following the denial of her postjudgment motion seeking relief from a custody-modification judgment entered by the Montgomery Circuit Court and from an earlier judgment that divorced her from Cedric L. Weathers (“the father”). For the reasons explained below, we cannot address the propriety of the divorce judgment, but we must reverse the custody-modification judgment and remand the cause for further proceedings.

The father filed a complaint seeking a divorce on March 7, 2008. In that pleading, the father asserted that the parties were married on October 4, 2005; that a daughter had been born on October 22, 2007; that the parties had separated on December 17, 2007; and that the parties’ child had been living with the father since birth.

The trial court entered a default judgment divorcing the parties on August 20, 2008. In October 2008, the mother, acting pro se, filed a “petition to modify for custody or visitation” and requested a hearing. In her petition, the mother asserted that she had left the marital residence because the father had become physically abusive, that he had refused to vacate the residence or to let her leave with the child, and that police officers called to the scene had instructed her to leave without the child because it was “late and very cold.” The mother also asserted that she had attempted several times to recover custody of or to establish visitation with the child but that, on those occasions, the father had threatened her. At the hearing on her petition, the mother stated that she had never received notice of the trial date, that she had personally sent an answer to the father’s divorce complaint directly to the father’s attorney, and that she had telephoned that attorney to obtain information regarding upcoming court dates but had been told that no trial or hearing dates were set.

Rather than treating the mother’s petition as a motion to set aside the default judgment, the trial court conducted a custody-modification hearing, applied the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard, and determined that the mother had not met that standard and, thus, was not entitled to a modification of custody. In that modification judgment, entered on January 27, 2009, the trial court imputed a minimum-wage salary to the mother and ordered her to pay monthly child support to the father in the amount of $340. The modification judgment also ordered the parties to agree upon a child-visitation schedule for the mother and to file it with the court; if no schedule was filed within 30 days, the trial court ordered, the mother would be awarded four hours of visitation every second Saturday of the month as a “phase in” period. The father was “vested with the authority to allow overnight visitation if he believes the child to be safe and further believes that overnight visitation is in the child’s best interest.”

For the first time in these proceedings, the mother hired an attorney who filed a postjudgment motion on February 23, 2009. In that motion, the mother’s attorney asserted that the petition filed by the mother was in fact a challenge to the default judgment, not a modification petition. Moreover, the motion alleged that the father had obtained a default judgment by fraud or by misrepresenting to the trial court that the mother could not be located or had otherwise intentionally failed to answer the father’s complaint seeking a divorce. That motion reiterated the mother’s contention in the previous pro se filing with the trial court that she had filed an answer to the divorce complaint, albeit by filing it with the father’s attorney instead of with the trial court, and the motion asserted that both judgments should be set aside and that a full trial on the merits should be conducted without application of the McLendon standard. On April 22, 2009, that postjudgment motion was denied, and this appeal follows.

The mother might have won a reversal of the default judgment of divorce if she or her attorney had fíled a direct appeal from the January 27, 2009, judgment. If we accept the contention that the mother’s “modification petition” was in fact a Rule 60(b), Ala. R. Civ. P., motion, then an appeal filed within 42 days of January 27, 2009 (i.e., on or before March 10, 2009), would have timely placed the issue of the correctness of denying that motion before this court. However, the mother’s attorney instead filed a postjudgment motion on February 23, 2009, and waited for the trial court to rule on that motion, which occurred in April 2009, before perfecting an appeal to this court. Therefore, treating the mother’s modification petition as a Rule 60(b) motion does not provide the mother any relief at this juncture because we would have to dismiss the present appeal as untimely. Alabama law is well established that filing successive post-judgment motions does not toll the time for taking an appeal. See, e.g., Ex parte Keith, 771 So.2d 1018, 1022 (Ala.1998), and Pinkerton Sec. & Investigation Servs., Inc. v. Chamblee, 961 So.2d 97, 102 (Ala.2006); see also Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 390 (Ala.Civ.App.2005). In this case, if we were to treat the mother’s October 2008 petition as a Rule 60(b) motion challenging the default judgment, the failure to appeal the January 2009 denial of that motion within 42 days would make this appeal untimely.

Thus, if the mother’s appeal was timely, it was timely only insofar as it challenged the trial court’s custody-modification judgment. The mother makes two contentions regarding the custody-modification judgment. First, she challenges the trial court’s award of only four hours per month visitation with the parties’ child and its stipulation that additional overnight visitation be allowed only at the discretion of the custodial parent, i.e., the father.

Although the trial court could have awarded standard visitation following a “phase in” period, it did not do so. Although the determination of proper visitation “is within the sound discretion of the trial court,” see Ex parte Bland, 796 So.2d 340, 343 (Ala.2000), that court cannot properly allow the custodial parent to detex--mine the noncustodial parent’s visitation schedule. See K.L.R. v. L.C.R., 854 So.2d 124, 132-33 (Ala.Civ.App.2003); see also K.L.U. v. M.C., 809 So.2d 837, 840-41 (Ala.Civ.App.2001), and Bryant v. Bryant, 739 So.2d 53, 56 (Ala.Civ.App.1999). We conclude that the trial court acted within its discretion in oi’dering a “phase in” period to allow the child to adjust to visitation with the mother; howevex-, the tidal court erred in failing to establish a regular visitation schedule following the “phase in” period.

The mother also contends that the trial court erred in ordering her to pay $340 in monthly child suppoi't when the income information provided by the mother established that she earned only $1,040 per month.

The only testimony concerning the mother’s income occurred near the end of the custody-modification hearing.

“THE COURT: Okay. Now, you work at Wal-Mart at the Supercenter?
“[MOTHER]: Yes, ma’am. Right now, I’m presently — I don’t know how long I’ll probably be there due to me having — something is wrong with my legs.
“THE COURT: And you submitted a pay stub from 12/19/08. Okay. This shows — how much do you make?
“[MOTHER]: 9.03 an hour.
“THE COURT: For 40 hours?
“[MOTHER]: No, ma’am. I only get like 28 to 30 hours, sometimes less than that. They be cutting our hours due to the economy.”

Rule 32, Ala. R. Jud. Admin., provides mandatory guidelines for trial courts to follow when determining a parent’s child-support obligation. “ ‘This court has previously stated that a parent’s ability to pay child support is a crucial factor to be considered in the determination of child support.’ ” Pardue v. Pardue, 917 So.2d 857, 862-63 (Ala.Civ.App.2005) (quoting Stewart v. Kelley, 587 So.2d 384, 385 (Ala.Civ.App.1991)). Although Rule 32(B)(5), Ala. R. Jud. Admin., allows a trial court to impute income to a parent if it first makes a finding that the parent is “voluntarily unemployed or underemployed,” the trial court in this case had absolutely no evidence from which to conclude that the mother was voluntarily underemployed. No evidence was offered indicating that the mother had ever earned an annual salary in excess of $13,459. In fact, as the mother asserts on appeal, the only evidence as to the mother’s income provided at trial indicates that the trial court could have made a downward deviation from the guidelines based upon the mother’s low income and work history. See generally Rule 32(A)(ii), Ala. R. Jud. Admin. Moreover, the trial court stated on the record that it would not inquire into the father’s present income but would use a six-month-old income affidavit that the father had previously provided. Although the trial court could have deviated from the child-support guidelines by making a written finding that such a deviation was warranted, the court did not do so in this case. From the sparse record before us, we are unable to determine how the trial court reached its determination regarding the child-support issue. See, e.g., Hood v. Hood, 23 So.3d 1160, 1165 (Ala.Civ.App.2009). Accordingly, we reverse that part of the trial court’s judgment pertaining to child support, and we remand the cause for the trial court to calculate the mother’s child-support obligation pursuant to the Rule 32 child-support guidelines.

Having concluded that the only issues properly before this court are issues pertaining to the visitation and child-support provisions of the custody-modification judgment, and having concluded that the trial court erred in entering both of those provisions, the custody-modification judgment is reversed only as to those provisions, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMAS and MOORE, JJ., concur.

THOMPSON, P.J., and BRYAN, J., concur in the result, without writings.

      . The record reflects that the mother filed her notice of appeal on June 2, 2009.

      . The mother provided her 2007 tax return to the trial court, which indicated that she had earned a net income of $13,459 in 2007.