author: PER CURIAM.

text:
    HARTFORD UNDERWRITERS INSURANCE COMPANY v. Dave Henry REED.
    1071605.
    Supreme Court of Alabama.
    June 25, 2010.
    Rehearing Denied Sept. 10, 2010.

      Cooper C. Thurber and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for appellant.
    Sidney W. Jackson and Mathew B. Richardson of Jackson, Foster & Richardson, LLC, Mobile, for appellee.
   PER CURIAM.

Hartford Underwriters Insurance Company (“Hartford”) appeals from the trial court’s judgment against it, and its subsequent denial of Hartford’s motion for a judgment as a matter of law (“JML”). We reverse and remand.

Facts and Procedural History

T & W Construction, LLC, obtained workers’ compensation insurance through the Jack Green Insurance Agency (“the Green Agency”). The Green Agency procured the workers’ compensation insurance for T & W through the assigned-risk pool managed by the National Counsel on Compensation Insurance (“NCCI”). NCCI assigned T & W’s risk to Hartford. Travelers Insurance Company (“Travelers”), through a contractual arrangement with Hartford, managed the underwriting of and claims under Hartford’s assigned-risk policies and acted as Hartford’s agent in connection with Dave Henry Reed’s claim under the Hartford policy.

Hartford required T & W to pay an estimated annual premium up front for its workers’ compensation insurance policy (“the Hartford policy”). Hartford reserved the right to conduct an audit when the Hartford policy ended to determine the amount of the final premium. T & W paid a portion of the estimated annual premium for the Hartford policy; the remainder was financed through American Liberty Financial Services, Inc. (“American Liberty”). A representative of the Green Agency signed the premium-finance agreement on behalf of T & W. Timothy Poates, a principal of T & W, testified that he was not aware of the premium-finance agreement and that he did not know if T & W had authorized the Green Agency to enter into such an agreement on its behalf. T & W paid the Green Agency the monthly installments required by the premium-finance agreement, and the Green Agency would, in turn, pay American Liberty on T & W’s behalf. In the event T & W failed to timely pay its monthly installments required under the premium-finance agreement, the premium-finance agreement provided American Liberty the authority to cancel the Hartford policy.

Hartford issued the Hartford policy effective from July 23, 2004, to July 23, 2005. The Hartford policy insured T & W for workers’ compensation liability resulting from an employee’s “bodily injury by accident,” provided that the bodily injury by accident occurred during the “policy period.” The Hartford policy also contained the following cancellation provision:

“D. Cancelation [sic],
“2. We may cancel this policy. We must mail or deliver to you not less than ten days advance written notice stating when the cancelation [sic] is to take effect. Mailing that notice to you at your mailing address shown in Item 1 of the Information Page will be sufficient to prove notice.
“3. The policy period will end on the day and hour stated in the cancelation [sic] notice.”

T & W’s “mailing address shown in Item 1 of the Information Page” of the Hartford policy was “3828 Isabella Lane, Mobile, AL 33618.” Poates confirmed that this address was T & W’s correct address.

In December 2004, T <& W defaulted on its premium payment. On December 21, 2004, American Liberty mailed to T & W at the address above a notice of intent to cancel the Hartford policy on January 5, 2005, dependant upon T & W’s payment of the past-due monthly installment. American Liberty mailed another notice of intent to cancel the Hartford policy to T & W on December 27, 2004. Poates testified that he could not remember if T & W had received either notice. On January 5, 2005, American Liberty, not having received payment from T & W, mailed T & W and faxed Hartford a notice of cancellation of the Hartford policy. The notice of cancellation stated, in pertinent part:

“* ⅜NOTICE OF CANCELLATION-NONPAYMENT OF PREMIUM FINANCED POLICY- *
“This policy has been financed by [American Liberty]. [American Liberty] has exercised its right to cancel this policy as provided in its agreement with [T & W], due to [T & W’s] delinquent payment status.
“PLEASE NOTE: [Hartford] is under no obligation to reinstate this policy in the event [American Liberty] should rescind their cancellation request.”

Poates testified that he did not recall receiving the notice of the cancellation of the Hartford policy from American Liberty.

Upon receipt of American Liberty’s cancellation request, Traveler, on behalf of Hartford, mailed T & W and the Green Agency a notice dated January 6, 2005, notifying them of Hartford’s intent to cancel the Hartford policy effective January 21, 2005.

Sue Flurry, a supervisor of a group of account-manager underwriters for Travelers, testified concerning Travelers’ automated method for producing and mailing cancellation notices. Flurry testified that cancellation notices are computer generated, folded, and stuffed into a window envelope, which has the appropriate postage affixed to it. Flurry testified that the cancellation process includes the creation of an “affidavit of mailing,” which lists the recipients of the cancellation notices, includes a date stamp, and contains the following certification by a Travelers employee:

“[E]ach cancellation entry on this page of the master computer list of cancellations has a corresponding envelope containing an original notice of cancellation showing the name and address of the policyholder or payer in the window of the envelope and that such envelope was submitted to the United States Postal Service.”

The affidavit of mailing for the cancellation notice was signed. Flurry also testified that a Travelers employee “takes [the] affidavit of mailing and ... the envelopes that were produced in order to verify that the addressee shows in the window, that the address [on the cancellation notice] is the same [as the address on the affidavit of mailing], [and] that the appropriate postage has been affixed to the envelope.” The affidavit of mailing shows that T & W’s cancellation notice was sent. to the address specified in the Hartford policy. Further, Flurry testified that the envelope in which the cancellation notice was mailed included a .return address and that the notice was not returned as undeliverable. Travelers also mailed the Green Agency a copy of the cancellation notice, which the Green Agency received.

On January 18, 2005, T & W made a late payment to American Liberty. Upon receipt of the late payment, American Liberty faxed Hartford a request to reinstate the Hartford policy. Hartford did not reinstate the Hai'tford policy, but, as stated in its notice of cancellation, canceled the Hartford policy on January 21, 2005.

On February 17, 2005, Travelers, on behalf of Hartford, mailed the Green Agency a document titled “Cancellation Change Slip — Commercial.” This document showed the “eff. date canc.” of the Hartford policy as “01/21/05,” and the “Reason for Cancellation” as “Finance Company Request — Non Payment.”

In April 2005, Hartford audited T & W to determine the final premium for the canceled Hartford policy. Hartford hired an auditing firm to conduct the audit, which met with T & W’s principals, Poates and Robert Williams, to review T & W’s records. During the audit, Poates signed a document titled “Verification of Visit,” which indicated that the “policy period” of the Hartford policy was “7/23/04 to 1/21/05,” Poates testified at trial that he was unsure of the purpose of the audit but that he thought it was “to renew the [Hartford] policy.” Poates also testified that he was not told that the audit was a cancellation audit and that he did not know that the Hartford policy had been canceled.

The audit showed that T & W owed Hartford an additional amount for the premium. Travelers, on behalf of Hartford, mailed T & W and the Green Agency a “Premium Adjustment Notice” showing the total earned premium. The premium-adjustment notice contained a reference to the “Cancellation Audit 07/23/04 to 01/21/05.”

On May 18, 2005, Dave Henry Reed, an employee of T & W, was injured within the line and scope of his employment with T & W. Reed filed a claim for worker’s compensation benefits under the Hartford policy. Reed’s claim was denied because the Hartford policy had been canceled before Reed’s injury occurred.

As a result of the denial of Reed’s claim, Reed sued T & W for worker’s compensation benefits. In that action, the trial court awarded Reed $364,526.40 in worker’s -compensation benefits. In addition to the worker’s compensation benefits, Reed also- requested that the trial court impose against T & W the statutory penalty under § 25-5-8(e), Ala.Code 1975, which provides, in pertinent part:

“[A]n employer required to secure the payment of compensation under this section who fails to secure the compensation shall be liable for two times the amount of compensation which would have otherwise been payable for injury or death to an employee.”

The trial court imposed the statutory penalty against T & W in the amount of $364,526.40 for T & W’s failure to secure the payment of compensation. Reed’s total award was thus $729,052.80. T & W consented to the judgment. In exchange for an assignment of T & W’s rights to any potential insurance coverage, Reed agreed not to collect the judgment from T & W.

On March 19, 2007, Reed, as the assign-ee of T & W’s rights, filed the present action against Hartford seeking coverage under the Hartford policy. Reed alleged breach of contract, bad-faith refusal to pay a claim, and fraud. In the same action, Reed also sued American Liberty, alleging breach of contract, negligence, and wantonness; and the Green Agency, alleging breach of contract, negligence, wantonness, and breach of fiduciary duty. On March 14, 2008, Hartford filed a motion for a summary judgment. The trial court entered a summary judgment for Hartford on Reed’s bad-faith and fraud claims, but denied Hartford’s summary-judgment motion on Reed’s breach-of-contract claim.

The action proceeded to trial before a jury. Hartford moved for a JML on Reed’s breach-of-contract claim at the close of Reed’s case. Hartford’s motion for a JML was denied, and the trial court also struck Hartford’s judicial-estoppel defense. American Liberty and the Green Agency also filed motions for a JML concerning all claims against them. The trial court granted American Liberty’s motion for a JML on Reed’s wantonness claim against it, and the trial court granted the Green Agency’s motion for a JML on Reed’s wantonness and breach-of-fiduciary-duty claims against it.

Hartford again moved for a JML on Reed’s breach-of-contract claim against it at the close of all the evidence. The trial court denied Hartford’s motion. American Liberty and the Green Agency also filed motions for a JML on Reed’s remaining claims against them at the close of all the evidence, which the trial court granted. Reed and Hartford agreed to submit the issue of damages to the trial court in the event the jury found for Reed.

The trial court submitted the ease to the jury on Reed’s breach-of-contract claim against Hartford. The jury returned a verdict in favor of Reed, and the trial court entered judgment against Hartford for $729,052.80. In its order entering judgment in favor of Reed, the trial court stated:

“The jury after deliberation and verdict having found in favor of the plaintiff, Dave Reed and against the defendant Hartford Underwriters Insurance Company, the Court hereby renders judgment in favor of plaintiff Dave Reed and against defendant Hartford Underwriters Insurance Company. Based upon the evidence in this case and the jury’s verdict, the Court finds therefore that Hartford Underwriters Insurance Company’s policy of workers’ compensation insurance was in effect at the time of Dave Reed’s injury on May 18, 2005. See Institute of London Companies v. Valley Equipment, 660 So.2d 1000 (Ala.Civ.App.1995).
“Prior to the submission of this case to the jury, the parties agreed to submit the issue of damages to the Court for resolution in the event of a verdict for the plaintiff. Hartford contends that if it is liable at all, its damages should only be the amount of the permanent and total injury award in Dave Reed’s workers’ compensation case, i.e., $828,926.40C]. Plaintiff Reed, for his part argues that as the assignee of Hartford’s insured, T & W Construction L.L.C., he is entitled to receive total compensation benefits plus the penalty assessed by the Circuit Court for T & W’s failure to secure the payment of compensation under § 25-5-8(e), Code of Alabama, 1975.
“After considering the briefs and arguments of the parties, the Court finds that a fundamental principle of contract law is that ‘damages for the breach of contract is that sum which would place the injured party in the same condition he would have occupied if the contract had not been breached.’ See Brendle Fire Equipment Inc. v. Electronic Engineers, Inc., 454 So.2d 1032 (Ala.Civ.App.1984). But for the breach of contract by Hartford, T & W Inc., would not have suffered the additional penalty imposed by the Circuit Court. Accordingly, this Court renders judgment in favor of Dave Reed and against defendant Hartford Underwriters Insurance Company in the amount of $729,052.80. Additionally, the Court finds that Hartford is liable for past and future medical benefits, as well as vocational benefits under the Alabama Worker’s Compensation Law for injures sustained by Dave Reed on or about May 18, 2005.”

Hartford then filed a rénewed motion for a JML or, in the alternative, for a new trial, which the trial court denied. Hartford appealed.

Standard of Review

In American National Fire Insurance Co. v. Hughes, 624- So.2d 1362 (Ala.1993), this Court stated the standard that applies to appellate review' of a trial court’s ruling on a motion for a JML:

“The standard of review applicable to a ruling on a motion for JNOV [now referred to as a postverdict JML] is identical to the standard used by the trial court in granting or denying a motion for directed verdict [now referred to as a JML]. Thus, in reviewing the trial court’s ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.”

624 So.2d at 1366 (citations omitted).

The rule regarding cancellation of an insurance policy requires that “the insurer setting up cancellation as a defense on a policy has the burden of proving by clear and convincing evidence that the notice of cancellation was properly mailed to the insured.” Currie v. Great Cent. Ins. Co., 374 So.2d 1330, 1331 (Ala.1979) (citing Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co., 287 Ala. 259, 251 So.2d 220 (1971)).

Discussion

Hartford argues, among other things, that the trial court erred in denying its motion for a JML based on its contention that the undisputed evidence shows that the Hartford policy was canceled before Reed was injured. Reed relies on Institute of London Cos. v. Valley Equipment, Inc., 660 So.2d 1000 (Ala.Civ.App.1995), and argues that § 27-40-11, Ala.Code 1975, “contains specific requirements regarding cancellation by or at the request of a premium finance company like [American Liberty].... Under the proper interpretation of [§ 27-40-11], the burden is on the insurer alleging cancellation as a defense to prove the finance company strictly complied with all the requirements of [§ 27-40-11] before effecting a cancellation.” (Reed’s brief, at 39-40.) Reed’s argument is based on the assumption that if the only reason the insurer is canceling the policy is the request of a premium-finance company, the policy must be canceled in accordance with § 27-40-11. Hartford argues that, regardless of American Liberty’s request to cancel the Hartford policy, Hartford effectively canceled the Hartford policy in accordance with the terms of the policy. Therefore, Hartford argues, American Liberty’s compliance with § 27-40-11 is inconsequential; we agree.

The law concerning an insurer’s right to cancel a policy is well settled: “[T]he right vel non of cancellation is a matter of contract.... The question of the motive of the parties or company in that behalf is immaterial when there is a cancellation under the. terms of the contract.” Pacific Mut. Life Ins. Co. of California v. Strange, 226 Ala. 98, 100, 145 So. 425, 426 (1932). Further,

“[i]t is well settled in Alabama that ‘in an action on an insurance policy when the insurer sets up cancellation as a defense, the insurer has the burden of proving the policy was canceled.’ Mid-State Homes, Inc. v. Cherokee Ins. Co., 51 Ala.App. 247, 248, 284 So.2d 274, 275 (1973). However, it is ‘equally true that in the absence of a restrictive statutory provision, the parties to an insurance contract may specify the method by which it may be canceled and the parties are thereby bound. Put another way, an insurance policy may be canceled according to its terms.’ 51 Ala.App. at 249 284 So.2d at 276. (Citation omitted).”

American Interstate Ins. Co. v. Kelley, 797 So.2d 479, 482 (Ala.Civ.App.2000). See also Green v. Standard Fire Ins. Co. of Alabama, 398 So.2d 671, 675 (Ala.1981) (holding that “[i]t is well settled in Alabama law that the right of the insurer to cancel an insurance policy is strictly construed and the condition imposed upon it with respect to giving notice of cancellation must be strictly performed”).

Regardless of Hartford’s motives or reasons for canceling the Hartford policy, the dispositive issue before this Court is whether Hartford produced sufficient evidence at trial indicating that the Hartford policy had been canceled and was not in effect at the time of Reed’s injury. Hartford argues that it produced sufficient evidence that it had canceled the Hartford policy according to its terms. According to the terms of the Hartford policy, Hartford could cancel the policy by “mail[ing] or delivering] to [T & W] not less than ten days advance written notice stating when the cancelation [sic] is to take effect.” The Hartford policy does not condition or limit Hartford’s right to cancel the policy in any way.

Hartford argues that it presented evidence indicating that it had mailed the notice of cancellation to T & W’s proper address and that T & W failed to rebut said evidence. Hartford relies on

“the common-law principle generally referred to as the ‘mailbox rule’ or the ‘letter presumption.’ As articulated by this Court in Corinth Bank & Trust Co. v. Cochran, 219 Ala. 81, 83, 121 So. 66, 67 (1929), this principle stands for the proposition that
“ ‘[a] letter properly addressed, stamped, and mailed is presumed to have been received in due course. Evidence denying the receipt of the letter does not render the evidence of the mailing inadmissible. Neither is it conclusive. Whether it was so mailed and received becomes a jury question.’ ”

Sullivan v. Eastern Health Sys., Inc., 953 So.2d 355, 360 (Ala.2006).

Sue Flurry’s testimony and the exhibits presented by Hartford at trial constitute clear and convincing evidence that Hartford “properly addressed, stamped, and mailed” the cancellation notice to T & W. As a result, a presumption arises that T & W received the cancellation notice. The presumption could have been rebutted by T & W’s denial that it received the cancellation notice. However, T & W did not deny receipt of the cancellation notice. Rather, Poates, as T & W’s representative, testified as follows:

“Q [Reed’s attorney]: I show you a document that is exhibit 23-A. Are you familiar with this document, Mr. Poates? It says, ‘Notice of Cancellation Nonpayment of Premium Finance Policy.’
“A [Poates]: I know I have seen it since, you know, the lawsuits and everything.
“Q: All right. Do you recall receiving the notice of cancellation from the Hartford in that mail before January 21, 2005?
“A: That I can remember, no, sir.
“Q: It says the date that it was mailed, date of issue is January 6th of ‘05. So that would have been obviously early in the year of ‘05. Anything about that-jar your recollection?
■ “A: No, sir. That I can remember, no, sir; not to say that it didn’t come in.
“Q: Right. And Mr. Thurber [Hartford’s attorney] took your deposition and asked you a series of questions about that. How strong, how weak, just tell us your recollection of whether or not you did, as best you can, whether or not you received that?
“[Hartford’s attorney]: Judge, I asked and answered. He said three times he did not remember.
“THE COURT: Overruled. You can cross-examine.
“A [Poates]: I don’t remember.
“Q [Hartford’s attorney]: This is a letter dated, which we have already seen before, January 6. That is the letter we have talked about before, correct?
“A [Poates]: Yes, sir.
“Q: It is addressed to T & W Construction Company. You said you do not remember receiving that notice-of cancellation?
“A: Correct. I don’t remember.
“Q: Was that T & W’s mailing address at that time, 3828 Isabella Lane, Mobile, Alabama 36618?
“A: Yes, sir.
“Q: So that mailing address is correct?
“A: Yes, sir.
“Q: [Hartford’s] Exhibit 22. Do you recognize that letter?
“A: It is a notice of cancellation.
“Q: Did you receive that letter?
“A: Not that I can recall.
“Q [Reed’s attorney]: You are not denying that you received these letters, particularly this letter, Notice of Cancellation, the one that was just up there, my exhibit 22? You are not denying that, are you?
“A [Poates]: I can’t deny it nor confirm it.”

Reed fails to point to anything in the record indicating that T <& W denies having received the cancellation notice from Hartford.

Hartford met its burden by providing clear and convincing evidence that it canceled the Hartford policy under the terms of the policy and that that cancellation was proper. Therefore, the trial court’s judgment denying Hartford’s motion for a JML on the breach-of-contract claim was error, and we reverse it.

Reed argues that in order for this Court to rule in favor of Hartford, it is necessary to overrule Valley Equipment. However, Valley Equipment is distinguishable from the present case, and our decision today does not effect its precedential value. In Valley Equipment, an insured procured “physical damage insurance” through an insurer and financed the premium through a premium-finance company. The insured and the premium-finance company entered into a premium-finance agreement, which contained a power of attorney, enabling the premium-finance company to cancel the policy. The insured defaulted on its payments to the premium-finance company, and the premium-finance company requested that the insurer cancel the policy; the insurer complied with the premium-finance company’s request. Subsequently, the insured filed a claim, which the insurer denied based upon the prior cancellation of the insurance policy. The insured sued to recover under the policy. The trial court found that the premium-finance company failed to comply with § 27-40-11 and granted the insured’s summary-judgment motion. The insurer appealed.

Before the Court of Civil Appeals, the insurer never raised the argument that the insurance policy had been properly canceled under the terms of the policy. Rather, the insurer argued that the policy was properly canceled under the provisions of § 27-40-11. The Court of Civil Appeals affirmed the trial court’s judgment, holding that the premium-finance company’s failure to adhere to the requirements of § 27-40-11 rendered its attempt to cancel the insurance policy ineffective.

This case is distinguishable from Valley Equipment because, unlike the insurer in Valley Equipment, Hartford argued before the trial court and before this Court that it properly canceled the Hartford policy in accordance with the terms of the Hartford policy. Therefore, the disposi-tive issue here is whether Hartford canceled the Hartford policy in accordance with the terms of the policy. We hold that it did.

Conclusion

Based on the foregoing, this Court reverses the trial court’s judgment and remands this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, SMITH, PARKER, and SHAW, JJ., concur.

      . The $328,926.40 amount does not include "[ajccrued benefits of 89 weeks [at] comp, rate of $400 week,” which total $35,600. It includes only the "[present value] of remaining 2434.64 weeks (822.316) x $400.00/ week.” The addition of the $35,600 would bring the total award to $364,526.40.


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    A.W., a minor child, by and through her next friend Kelli HOGELAND, and W.B., a minor child, by and through his next friend Shara Fortenberry v. J. Walter WOOD, Jr., in his capacity as executive director of the Department of Youth Services, et al.
    1081428.
    Supreme Court of Alabama.
    June 25, 2010.
    Rehearing Denied Sept. 17, 2010.

      Michael J. Crow of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; and Robert D. Drummond, Jr., Fairhope, for appellants.
    T. Dudley Perry, Jr., and Michael E. Meyer, Alabama Department of Youth Services, Mt. Meigs; and Michael C. Skot-nicki and Charles Price II of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellee Walter Wood.
    Mark S. Boardman and Dana Bolden Hill of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellee Alabama Youth Homes, Inc.
    Donald B. Sweeney, Jr., of Bradley Ar-ant Boult Cummings LLP, Birmingham, for appellees Randy Fuller and James Carr.
   BOLIN, Justice.

A.W., a minor child, by and through her next friend Kelli Hogeland, and W.B., a minor child, by and through his next friend Shara Fortenberry, appeal from the trial court’s order denying their motion to alter, amend, or vacate (1) a summary judgment in favor of J. Walter Wood, Jr., executive director of the Department of Youth Services (“DYS”); (2) the dismissal of A.W.’s and W.B.’s claims against defendants Randy Fuller, superintendent of the Shelby County Board of Education, and James Carr, superintendent of the Blount County Board of Education; and (3) a judgment in favor of Alabama Youth Homes, Inc. (“AYH”), based on partial findings.

Underlying Facts and Procedural History

DYS operates facilities for, and provides social and educational services to, delinquent youth committed to its custody in accordance with state law. DYS has its own special school district consisting of five separate schools. The DYS school district has its own board of education, which formulates and implements educational policy and procedures that comply with state law and Alabama Department of Education guidelines. Wood, as executive director of DYS, is ultimately responsible for ensuring that the education program at DYS facilities fully complies with state law and with Department of Education guidelines and/or regulations.

Because of the great number of juveniles placed in its custody, DYS contracts with independent entities throughout Alabama to provide some housing for juveniles committed to the custody of DYS. Pursuant to those contracts, these independent entities are required either to provide or to arrange for education that complies with state law and Department of Education regulations. In this case, DYS contracted with AYH to operate facilities in Blount County and in Shelby County at which A.W. and W.B. would be housed and educated. A.W. was assigned to AYH’s Oneonta Group Home for Girls in Blount County, and W.B. was assigned to AYH’s Westover Group Home in Shelby County. Pursuant to the contract between DYS and AYH, AYH agreed that A.W. and W.B. would be educated through the local school authorities, i.e., the Blount County Board of Education and the Shelby County Board of Education, respectively, and that their education would comply with state law and Department of Education regulations.

On May 21, 2008, A.W., on behalf of herself and all others similarly situated, sued Wood and AYH. A.W.’s complaint sought injunctive relief as well as compensatory and punitive damages for negligence and wantonness based on Wood and AYH’s alleged failure to provide A.W. with adequate educational programs and opportunities. Specifically, A.W. alleged that Wood and AYH denied her the opportunity to attend public school in the district in which she lived — Blount County — and that she was instead required to attend the Blount County Alternative School, where she received only approximately four hours of educational instruction per day and was not given access to the course of study required for graduation from high school.

In September 2008, A.W. filed a first amended complaint to add W.B. as a named plaintiff. W.B. alleged that although the Westover Group Home is zoned for Chelsea High School, Wood and AYH failed to enroll him there and that they instead required him to attend the Shelby County Alternative School, where he did not receive the core curriculum and course of study mandated by state law and by the Department of Education. A.W. and W.B. are hereinafter sometimes referred to collectively as “the plaintiffs.”

On September 10, 2008, W.B. moved for a preliminary injunction, seeking an order requiring-Wood and AYH to enroll him in Chelsea High School. On October 28, 2008, the trial court held a hearing on the request for an injunction and ultimately denied the request. On March 19, 2009, AYH moved for a summary judgment. That same day, Wood moved for a summary judgment. Wood argued, among other things, that he was immune from liability. On March 20, 2009, AYH adopted all the arguments Wood made in his motion. On March 24, 2009, the plaintiffs filed a motion to compel and for sanctions as deemed appropriate because counsel for Wood had not produced requested documents regarding DYS’s policies and procedures in relation to the plaintiffs’ claims and because Wood’s counsel had canceled Wood’s scheduled deposition. The plaintiffs argued that the requested documents and deposition were necessary for them to be able to respond to Wood’s and AYH’s summary-judgment motions. Immediately before a proceeding at which ore tenus evidence was to be presented, the trial court denied both Wood’s and AYH’s summary-judgment motions as untimely.

The trial court held a proceeding at which evidence was presented ore tenus on March 30, 2009, and March 31, 2009, during which the plaintiffs sought to show that Wood and AYH had violated 1) Ala. Code 1975, § 16-1-1, which provides that the scholastic day shall not be less than six hours of actual teaching per day unless otherwise ordered by the county or city board of education; 2) Rule 290-3-1.02, Alabama Administrative Code (State Department of Education), which, in part, requires that the length of a school day shall be six hours, exclusive of lunch and recess; and 3) Ala.Code 1975, § 16-6B-2, which, in part, establishes the core curriculum and minimum electives to be offered. During the first day of the trial, Randy Hale, the program director for AYH, and Matt Foster, a former AYH clinical director, testified. Their testimony established that only the local education authorities, i.e., the Blount County Board of Education and the Shelby County Board of Education, had the authority to decide where a child in its jurisdiction went to school, regardless of the zone in which the child lived, and that neither Wood nor AYH had that authority. Hale, however, testified that he was aware that A.W. and W.B. attended school only 3 hours and 15 minutes per day. He stated that he had inquired of the Blount County Board of Education about whether the hours were sufficient and was told that “everything was fine.”

The plaintiffs then called Wood to testify. At that time, the trial court indicated that Wood had been scheduled for a deposition pursuant to the trial court’s order and that he had not appeared. The court ordered that the hearing be postponed until March 31, 2009, and that Wood immediately sit for a deposition by the plaintiffs, which Wood did the afternoon of March 30, 2009. The ore tenus proceedings resumed on March 31, 2009, and Wood testified the second day of the hearing. After hearing the evidence, the trial judge repeatedly stated that the plaintiffs had sued the wrong parties and that both AYH and Wood had fulfilled their responsibilities regarding the plaintiffs’ education. Specifically, the trial court stated that once A.W. and W.B. arrived at the Oneonta and Westover Group Homes in Blount County and Shelby County, respectively, AYH’s only responsibility was to enroll them in the respective school districts; thereafter, all decisions relating to their education, including placement, hours, and curriculum, were strictly within the purview of the local educational authorities. The trial court continued the trial until June 15, 2009, to allow the plaintiffs an opportunity to amend their complaint, suggesting that they add the respective boards of education as defendants. On April 2, 2009, the plaintiffs filed a second amended complaint to add as defendants Fuller, the superintendent of the Shelby County Board of Education, in his individual capacity, and Carr, the superintendent of the Blount County Board of Education, in his individual capacity. Thereafter, Fuller and Carr filed a joint motion to dismiss. On April 20, 2009, Wood filed a second motion for a summary judgment, now attaching affidavits and other documents in support of his immunity defense. AYH filed a motion for a judgment based on partial findings. On May 5, 2009, the plaintiffs filed a response to Fuller and Carr’s motion to dismiss. On May 8, 2009, the plaintiffs filed a consolidated response to Wood’s summary-judgment motion and to AYH’s motion for a judgment on partial findings. With regard to Wood, the plaintiffs argued that the summary-judgment motion was untimely and not compliant with Rule 56, Ala. R. Civ. P. In response to AYH’s motion, the plaintiffs argued that Fuller’s and Carr’s affidavits directly conflicted with the deposition and trial testimony of Hale, Foster, and Wood, because the trial testimony indicated that the educational opportunities, hours, and curriculum offered to the plaintiffs were decided by AYH pursuant to AYH’s agreement to provide for the education of students placed by DYS at its facilities.

On May 12, 2009, the trial court granted Fuller and Carr’s motion to dismiss; it granted Wood’s motion for a summary judgment, and it granted AYH’s motion for a judgment on partial findings. On June 11, 2009, the plaintiffs, pursuant to Rule 59(e), Ala. R. Civ. P., filed a motion to alter, amend, or vacate the. trial court’s judgment, which was denied.

Fuller and Carr’s Motion to Dismiss

The plaintiffs’ amended complaint adding Fuller and Carr as defendants alleges:

“16. That [Fuller and Carr] individually or acting in concert failed to provide to Plaintiffs the educational opportunities, programs, courses guaranteed and mandated by the Alabama Constitution, state law and agency regulations.
“17. That [Fuller and Carr] willfully, fraudulently, in bad faith, without authority or under a mistaken interpretation of the law and in violation of state law and regulation denied Plaintiffs the educational programs and opportunities to which they were entitled while committed to the legal custody of [DYS].”

On April 17, 2009, Fuller and Carr filed a motion to dismiss the claims against them in their individual capacities, asserting, in part, the defense of “governmental immunity.” Their motion does not state or specify that State-agent immunity is being asserted; rather, it merely states that suing them in their individual capacities is inappropriate — a proposition for which they cited no authority. Fuller and Carr submitted their individual affidavits with their motion to dismiss. The plaintiffs filed a response in opposition, asserting that they had stated a'Viable claim that Fuller and Carr had violated certain state laws and Department of Education regulations. The trial court granted Fuller and Carr’s motion to dismiss without specifying the basis for the dismissal.

On appeal, both sides assert that the applicable standard of review in this case is the standard applicable to a Rule 12(b)(6), Ala. R. Civ. P., dismissal for failure to state a claim, namely, that the reviewing court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail, citing Nance v. Matthews, 622 So.2d 297 (Ala.1993). However, “where matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment as provided in Rule 12(c), [Ala. R. Civ. P.], regardless of its denomination and treatment by the trial court.” Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986).

“When the trial court is called upon to consider a Rule 12(b)(6) motion, it must examine the allegations in the complaint, or, as in the instant case, the counterclaim, and construe it so as to ‘resolve all doubts concerning [its] sufficiency in favor of the [claimant].’ In so doing, the court does not consider whether the claimant will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985), citing First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981), and Karaqan v. City of Mobile, 420 So.2d 57 (Ala.1982).
“If the motion, however, is converted to a Rule 56 [ (c), Ala. R. Civ. P.,] motion for summary judgment, the ‘moving party’s burden changes and he is obliged to demonstrate that there exists no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law.’ Papastefan v. B & L Const. Co., 356 So.2d 158 (Ala.1978), citing C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1366 (1969).”

Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698, 702-03 (Ala.1988).

In the instant case, nothing in the record expressly indicates which material the trial court considered in ruling on Fuller and Carr’s motion to dismiss. The trial court did not draft an order granting the motion. Instead, it merely made the following notations on the face of the motion: “granted” and “dismissed.” Thus, it would appear that, in ruling on the motion to dismiss, the trial court necessarily considered Fuller’s and Carr’s affidavits. Moreover, there is no evidence in the record to indicate that the trial court gave the parties notice of its intent to convert the motion to dismiss into a motion for a summary judgment. See Hales v. First Nat'l Bank of Mobile, 380 So.2d 797 (Ala.1980) (noting that the record must demonstrate that all parties were aware of the trial court’s intention to treat the motion as one converted to a summary-judgment motion). In Graveman v. Wind Drift Owners’ Ass’n, Inc., 607 So.2d 199, 202 (Ala.1992), this Court stated:

“The requirements of Rule 56 apply to a converted Rule 12(b)(6) motion. Hales v. First Nat'l Bank of Mobile, 380 So.2d 797, 799 (Ala.1980). Together, Rules 12 and 56 require that the nonmovant receive (1) adequate notice that the trial court intends to treat the motion as one for summary judgment and (2) a reasonable opportunity to present material in opposition. Davis v. Howard, 561 F.2d 565, 571-72 (5th Cir.1977); Hales, at 799. This Court has held that the same 10 days’ notice required when a party moves for summary judgment is also required for a converted motion for summary judgment. Hales, at 799. This Court has further held that ‘the record must adequately demonstrate that all counsel were aware of the intentions of the [trial] judge to treat the motion as converted.’ Hales,' at 799-800 (quoting Davis, at 571-72).”

See also Drees v. Turner, 10 So.3d 601, 603 (Ala.Civ.App.2008) (“[Ajlthough neither the parties nor the trial court had apparently been aware that the matter had been converted into a motion for a summary judgment, the failure to notify the parties that the motion had been converted was prejudicial to both parties and, therefore, the cause was due to be remanded.”); Jacobs v. Whaley, 987 So.2d 1143, 1147 (Ala.Civ.App.2007) (remanding case when trial court failed to communicate to the parties its intention to treat a motion to dismiss as one for a summary judgment, thereby failing to observe the procedural requirements of Rule 56(c), Ala. R. Civ. P.).

. Consequently, because it is not clear from the record whether the trial court in this case communicated to either side its intention to treat the motion to dismiss as one for a summary judgment, we remand the cause to assure that the procedural safeguards of Rules 12(b) and 56(c), Ala. R. Civ. P., are afforded both sides. Upon remand, “the trial court is directed to conduct a proper hearing, affording both parties proper notice pursuant to Rule 56, to determine whether any genuine issue of material fact is present.” Hightower, 527 So.2d at 703.

Wood’s Motion for a Summary Judgment

On March 19, 2009, Wood first moved for a summary judgment, arguing, among other things, immunity. No supporting materials were attached to the March 19, 2009, summary-judgment motion. The trial court denied the motion as untimely. During a continuance of the trial, Wood filed a second motion for -a summary judgment, now attaching affidavits and other support in favor of his immunity argument. In response to Wood’s motion, the plaintiffs argued that the summary-judgment motion was not proper because it was untimely and because Wood failed to file a narrative summary iii support of the motion as required by Rule 56, Ala. R. Civ. P. Following the trial court’s entry of a summary judgment 'in Wood’s favor, the plaintiffs filed a Rule 59, Ala. R. Civ. P., motion, again arguing that Wood’s summary-judgment motion was untimely and not in compliance with Rule 56. The plaintiffs argued that at the time the trial court granted the motion, the trial proceedings were in recess during the direct examination of Wood and that this examination had already been delayed by the actions of Wood’s counsel in not having Wood appear at the scheduled deposition. They also argued that Wood would have had the opportunity at the close of the plaintiffs’ case to seek relief.

“Ordinarily, this Court reviews a summary judgment de novo.” Verneuille v. Buchanan Lumber of Mobile, Inc., 914 So.2d 822, 824 (Ala.2005). However, that standard of review is not appropriate here because the plaintiffs, in both their response to the summary-judgment motion and their postjudgment motion, argued only that Wood’s summary-judgment motion was procedurally defective. See Verneuille, 914 So.2d at 824 (noting that de novo review of a summary judgment is not appropriate where the case “does not involve the issue whether the record shows the absence of a ‘genuine issue as to any material fact and that the [movant] is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P.”). Thus, this Court will apply the standard of review applicable to the. denial of a- Rule 59(e), Ala. R. Civ. P., postjudgmeht motion to alter, amend, or vacate a judgment. “Whether to grant relief under Rule 59(e) ... is within the trial court’s discretion.” Bradley v. Town of Argo, 2 So.3d 819, 823 (Ala.2008).

The plaintiffs first argue that Wood’s summary-judgment motion was untimely. The facts indicate that Wood first moved for a summary judgment on March 19, 2009. The trial court denied this motion as being untimely. The trial court also deemed the motion incomplete because discovery in the case had not been completed. The trial court thereafter conducted a bench trial on March 30, 2009, and March 31, 2009. On the second day— March 31, 2009 — the trial court indicated its intention to continue the trial, which was ultimately set to resume on June 15, 2009. On April 2, 2009, the plaintiffs filed a second amended complaint to add Fuller and Carr as defendants. On April 20, 2009, Wood filed a renewed motion for a summary judgment on all claims alleged in the plaintiffs’ complaint and first amended complaint — based on the fact that all discovery had been completed. Wood also submitted the summary-judgment motion as a new motion based on all claims asserted in the plaintiffs’ second amended complaint. The motion was accompanied by a 35-page brief that referenced 17 attachments, including deposition transcripts, discovery responses, and the preliminary-injunction transcript. We presume under these facts that the trial court deemed Wood’s motion timely because it granted the motion on the merits. “ ‘The trial court is afforded a wide range of discretion in applying the time requirements of Rule 56.’ ” Verneuille, 914 So.2d at 824 (quoting Hale v. Union Foundry Co., 673 So.2d 762, 764 (Ala.Civ.App.1995) (Crawley, J., dissenting) (emphasis added in Vemeuille)). Moreover, Rule 45, Ala. R.App. P., states that “[n]o judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless ... the error complained of has probably injuriously affected substantial rights of the parties.” Under the circumstances, the plaintiffs rights were not substantially prejudiced. Wood filed his summary-judgment motion on April 20, 2009 — well before the June 15, 2009, trial date.

The plaintiffs’ argument that Wood’s summary-judgment motion failed to include a narrative summary in support of its motion is without merit. Rule 56(c), Ala. R. Civ. P., provides:

“(1) Form of Motion and Statement in Opposition Thereto. The motion shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority. Any supporting documents that are not on file shall be attached as exhibits. If the opposing party contends that material facts are in dispute, that party shall file and serve a statement in opposition supported in the same manner as is provided herein for a summary of undisputed material facts.”

(Emphasis added.)

As previously noted, Wood’s summary-judgment motion included a 35-page brief in which he argued the issue of immunity; the brief referenced numerous exhibits and attachments. In International Fidelity Insurance Co. v. Gilliam, 659 So.2d 24 (Ala.1995), this Court addressed claims that a movant had failed to comply with the narrative-summary requirement of Rule 56(c)(1). This Court concluded that the motion for a summary judgment “included exhibits sufficient to meet the narrative summary requirement of Rule 56.” 659 So.2d at 27. Likewise, Wood’s submission of the facts, which are contained in the argument section of his accompanying brief, with references to specific attachments/exhibits, is sufficient to meet the requirements of Rule 56. On appeal, the plaintiffs argue alternatively that the summary judgment was not proper because, they argue, Wood was not entitled to immunity. However, the plaintiffs failed to raise this argument before the trial court in either their response to Wood’s summary-judgment motion or in their postjudgment motion for relief from the judgment. This Court will not place a trial court “ ‘ “in error on matters which the record reveals it neither ruled upon nor was presented the opportunity to rule upon.” ’ ” Verneuille, 914 So.2d at 824 (quoting J.K. v. Lee County Dep’t of Human Res., 668 So.2d 813, 817 (Ala.Civ.App.1995), quoting in turn Wilson v. State Dep’t of Human Res., 527 So.2d 1322, 1324 (Ala.Civ.App.1988) (emphasis added in Vemeuille)). Accordingly, the trial court did not exceed its discretion in denying the plaintiffs’ postjudgment motion based on the plaintiffs’ argument that the motion was procedurally defective. The summary judgment is, therefore, affirmed.

AYH’s Motion for a Judgment Based on Partial Findings Pursuant to Rule 52(c), Ala. R. Civ. P.

As previously noted, the trial court, during the second day of the ore tenus hearing on March 31, 2009, continued the trial in order to allow the plaintiffs to amend their complaint to add defendants. The trial was ultimately continued to June 15, 2009. The plaintiffs thereafter amended their complaint to add Fuller and Carr as defendants. Fuller and Carr filed a joint motion to dismiss, which was accompanied by their individual affidavits. At the same time, AYH filed a Rule 52(c), Ala. R. Civ. P., motion for a judgment based on partial findings, which the trial court granted. The plaintiffs appeal the denial of their postjudgment motion to alter, amend, or vacate the judgment in favor of AYH.

Rule 52(c), Ala. R. Civ. P., provides:

“(c) Judgment on Partial Findings. If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment may be supported by findings of fact and conclusions of law.”

On appeal, the plaintiffs argue primarily that they were not fully heard on AYH’s liability because, they say, they were denied the opportunity to offer additional testimony from Fuller and Carr regarding the actual agreements between AYH, on the one hand, and the Blount County Board of Education and the Shelby County Board of Education, on the other hand. More specifically, they argue that “they had yet to offer testimony and evidence regarding the actual agreements and practices of [AYH], as evidenced in part from the affidavits of Randy Fuller and James Carr.” During the course of the two-day ore tenus proceeding, the testimony from AYH officials established that only the local school authorities, in this case the Blount County Board of Education and the Shelby County Board of Education, had the authority to determine where a child residing in its district attended school, regardless of zoning. There was also limited testimony from AYH officials regarding the number of hours and the course of curriculum A.W. and W.B. received while attending school within the Blount and Shelby County school systems, respectively. The plaintiffs point out that AYH, pursuant to its contract with DYS, had a duty to provide A.W. and W.B. with an education that complied with state law and Department of Education regulations. They also contend that there was some sort of agreement between AYH and the respective boards of education regarding A.W. and W.B.’s educational arrangements. Unfortunately, the only people who testified regarding these issues were AYH officials. The trial court in this case dismissed the claims against Fuller and Carr apparently before the plaintiffs had a chance to depose them. Fuller’s and Carr’s affidavits appear to offer another side of the story.

■Carr, in his affidavit, states, in part:

“[AYH] officials contacted the Blount County Board of Education sometime in or around August of 2006. The contact was made to the Board of Education. The subject of the discussions related to educational services that could be provided „to students who would be placed in a new Alabama Youth Homes facility located in Blount County, Alabama.
“Discussions with our Blount County staff and AYH related to what education services would be beneficial and appropriate within the structures of the AYH program: what counseling; what individualized services; what transportation would be needed and provided.”

(Emphasis added.)

Fuller, in his affidavit, states, in part:

“Stated otherwise, the [Shelby County] Board has implemented a cooperative agreement with [AYH] since at least 1998....
“Students who are placed in the program of the Board by [AYH] receive a full day of instruction by highly qualified teachers pursuant to the State approved curriculum. It is a full day of school. It is my understanding that Donna Dickson monitors the program with [AYH].”

(Emphasis added.)

As previously noted, Randy Hale, the program director for AYH, testified that the plaintiffs attended school only 3 hours and 15 minutes per day. He also stated that, upon inquiry as to the appropriateness of those hours, he had been informed by someone at the Blount County Board of. Education that “everything was fine.” In other words, there appears to be outstanding issues that can be resolved only by further discovery and additional cross-examination of AYH officials. Consequently, we conclude that the trial court’s judgment in favor of AYH, under the circumstances, was premature and that it should have deferred rendering a judgment in favor of AYH pending further discovery. Accordingly, the judgment of the trial court in favor of AYH is reversed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

LYONS, STUART, PARKER, and SHAW, JJ., concur.

COBB, C.J., and WOODALL and MURDOCK, JJ., concur in the result.


author: WOODALL, Justice. COBB, Chief Justice

text:
    Prasad VANKINENI v. SANTA ROSA BEACH DEVELOPMENT CORPORATION II and Renasant Bank.
    1080908.
    Supreme Court of Alabama.
    Sept. 3, 2010.

      W. Brad English of Richardson Callahan & Frederick LLP, Huntsville, for appellant.
    Gregory H. Revera and Benjamin L. McArthur of Bradley Arant Boult Cummings LLP, Huntsville, for appellee Santa Rosa Beach Development Corporation II.
   WOODALL, Justice.

On June 3, 2008, Prasad Vankineni sued Santa Rosa Beach Development Corporation II (“Santa Rosa”) in the Madison Circuit Court. On March 17, 2009, the trial court dismissed the case based upon an outbound forum-selection clause in a contract between Vankineni and Santa Rosa. Vankineni timely appealed to this Court. We reverse and rémand.

Santa Rosa is the developer of a condominium community in Santa Rosa County, Florida. On January 5, 2005, Vankineni entered into a written contract to purchase a condominium unit in that community from Santa Rosa. The purchase contract provided, in pertinent part: “This contract shall be construed, applied, and enforced in accordance with the laws of the State of Florida. Any action to enforce a provision of this agreement shall be in the appropriate court located in Santa Rosa County, Florida.” (Emphasis added.)

Vankineni’s complaint contained three counts. The first count alleged that Santa Rosa had violated the Alabama Securities Act, § 8-6-1 et seq., Ala.Code 1975 (“the Act”). For the alleged violations of the Act, Vankineni sought to recover the consideration he had paid to Santa Rosa, plus interest, attorney fees, and. court costs. The second count sought the rescission of the purchase contract, thereby requiring Santa Rosa to return the consideration paid by Vankineni. Similarly, the third count sought a declaratory judgment “[fjinding the contract is invalid and unenforceable” and “[requiring Santa Rosa ... to return to ... Vankineni all consideration flowing to [it] by virtue of the [purchase] contract.”

On December 12, 2008, Santa Rosa filed a motion to dismiss Vankineni’s complaint, based, in pertinent part, upon the outbound forum-selection clause in the purchase contract. Santa Rosa argued that the “case [was] due to be dismissed for improper venue because the parties agreed that any dispute arising out of the contract [would] be brought in the appropriate court located in Santa Rosa County, Florida.” In response, Vankineni argued, in relevant part, that the forum-selection clause did not apply because, according to him, he had not brought “an action to enforce” the purchase contract. The trial court granted Santa Rosa’s motion, and Vankineni appealed.

We must determine whether the trial court exceeded its discretion in enforcing the forum-selection clause. “[T]he review of a trial court’s ruling on the question of enforcing a forum-selection clause is for an abuse of discretion.” Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001).

The trial court stated in its order dismissing Vankineni’s action that it was enforcing the outbound forum-selection clause because it had concluded that Vank-ineni had “not met his burden of showing that enforcement of the clause would be unfair, unreasonable or seriously inconvenient.” It is true that this Court has “adopt[ed] the majority rule that a forum selection clause should be enforced so long as enforcing it is neither unfair nor unreasonable under the circumstances.” Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). However, the disposi-tive issue in this case is not whether the enforcement of the outbound forum-selection clause would be unfair, unreasonable, or seriously inconvenient; instead, the dis-positive issue is whether Vankineni’s action falls within the scope of the clause.

The outbound forum-selection clause in the purchase contract applies to “[a]ny action to enforce a provision” of the contract. (Emphasis added.) This contractual language is “plain and free from ambiguity”; therefore, “there is no room for construction, and it is the duty of the court to enforce it as written.” Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala.1982); see also Ex parte Cintas Corp., 958 So.2d 330, 333 (Ala.2006). “ ‘A court may not make a new contract for the parties or rewrite their contract under the guise of construing it.’ ” Turner v. West Ridge Apartments, Inc., 893 So.2d 332, 335 (Ala.2004) (quoting Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 35-36 (Ala.1998)).

The word “enforce” means “[t]o give force or effect to [or] to compel obedience to.” Black’s Law Dictionary 569 (8th ed. 2004). Thus, the enforcement of a contract is the opposite of the rescission of a contract, because “[t]he effect of rescission is to extinguish the contract.”, Clark v. Wilson, 380 So.2d 810, 812 (Ala.1980).

Vankineni argues that his action does not fall within the scope of the outbound forum-selection clause, because, he says, he “does not seek enforcement of the contract, or any provision thereof.” Vankine-ni’s brief, at 33. We agree. Vankineni’s claim under the Act seeks the “return [of] the consideration paid by him” and does not seek compensatory damages for any alleged breach of the contract. His other counts seek the rescission of the contract and a declaratory judgment “[finding that the contract is invalid and unenforceable.” (Emphasis added.) None of these claims involves the enforcement of any provision of the purchase contract.

Santa Rosa argues “that the forum-selection clause encompasses all of [Vankine-ni’s] claims.” Santa Rosa’s brief, at 12. However, it does not explain how Vankine-ni may be considered to be seeking to enforce any provision of the purchase contract. Instead, Santa Rosa argues that “[t]he purchase agreement and its interpretation [are] central to each of the actions raised by [Vankineni and that] each of [his] claims flows from the existence of the contract.” Santa Rosa’s brief, at 13. However, in order to accept Santa Rosa’s arguments, we would have to rewrite the forum-selection clause, under the guise of construing it, to extend its scope to actions arising under or relating to the purchase contract or the relationships created by it, and this we may not do.

For these reasons, we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., . concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent. In my view, this is a close case. However, looking at the allegations of the complaint, as well as the claims asserted therein, I am not convinced that the trial court erred in determining that this is an action to enforce a provision or provisions of the purchase contract and that, therefore, the outbound forum-selection clause applied.

Generally speaking, when examining a contract, this Court looks to the substance of the document as a whole, giving the terms in the contract their ordinary, plain, and natural meaning unless a more narrow, technical definition is indicated. In addition, complaints and other pleadings are not viewed critically but are generally viewed through a wider lens, looking to the substance in order to do substantial justice. See Rule 8(f), Ala. R. Civ. P. Thus, in determining whether Prasad Vankine-ni’s action is one “to enforce a provision ” of the purchase contract within the intended meaning of the outbound forum-selection clause in the contract, a trial court should consider all the provisions of the contract, and then compare those provisions to the substance of the allegations, the causes of action, and the requests for relief in the complaint.

Vankineni seeks to rescind the contract. The purchase contract itself sets forth conditions under which the buyer may rescind the contract. For example, the purchase contract is “voidable by buyer within fifteen days after the date of receipt from the developer of any amendment which materially alters or modifies the offering in a manner that is adverse to the buyer.” The estimated completion date in the purchase contract for the condominium unit was October 15, 2006, but this date was “subject to amendment by Seller should Seller’s progress or plans be altered by 'conditions unforeseen by or outside the control of Seller, and any such amendment shall not require formal or specific notice by Seller to Buyer.” One of the foundational allegations of the complaint is that the condominium has not been “completed by the date set forth in the contract, to-wit: October 15, 2006,” and that Vankineni has therefore been deprived of the use and enjoyment of the unit since that time. The complaint asserts'that Santa Rosa has continually delayed (i.e., amended) the contracted-for date of completion, and this is one basis of Vankineni’s claim for rescission.

Vankineni’s claim for rescission is not specifically described as a “contractual” claim for rescission. Neither, however, does Vankineni state that he seeks rescission only as an equitable remedy; rather, the claim is one for “any”, relief “fit law or in equity” that would be available to Vankineni should he prove the averments of his claim for rescission. Therefore, I read the complaint as seeking the remedy of rescission under an equitable theory (per the rather weak averments of having been “misled”) or under any theory that would entitle Vankineni to relief “at law.” The allegations of the complaint, if proven, would be sufficient to support a claim for rescission under the term's of the contract. Thus, although Vankineni may be seeking noncontractual relief, he is also, at least in the alternative, seeking the remedy of rescission under “any” legal theory available — including enforcement of Vank-ineni’s legal rights under the express provisions of the purchase contract.

Further, in an express invocation of his contractual rights, in conjunction with his request for a declaratory judgment, Vanki-neni seeks not only a judgment as to the enforceability of the contract, but also “the Court’s judgment as to the validity, legitimacy and enforceability of the Contract, and as to his rights and obligations, as well as those of the interested parties, with respect to the Contract.” (Emphasis added.) When that count is fairly construed, it appears that Vankineni seeks a declaration of his contractual rights, including those available to him in the event that the purchase contract is rescinded or declared unenforceable. Moreover, in conjunction with his request for a declaratory judgment, Vankineni seeks an order “[ajward-ing Dr. Vankineni such other , and further relief, at law or equity, to which he may be entitled.” In the context of the allegations of the complaint, which include an allegation that the contract ivas not fulfilled, by the date contemplated in the purchase contract, this, too, could reasonably be considered a request for any relief due Vankineni at law pursuant to the contract.

In addition, other relief requested in the complaint is available under the rights and obligations stated in the purchase contract as being available in the event of an action such as this one. Paragraph 16(a) of the purchase contract states: “If Buyer properly terminates the contract pursuant to its terms ... all deposits shall be returned to the Buyer with interest.” The contract also states, in paragraph 38(f): “In the event of any litigation or arbitration concerning this transaction, the prevailing party shall be entitled to recover its reasonable costs and attorney’s fees, inclusive of Court costs and attorney’s fees incurred in any appellate proceeding.” In paragraph 34(b) of the complaint, in conjunction with his request for a declaratory judgment “as to [the] rights and obligations” of the parties “with respect to the contract,” Vankineni seeks an order “[Requiring Santa Rosa ... to.return to Dr. Vankineni all consideration flowing to [it] by virtue of the Contract including, without limitation, the cash deposit paid by Dr. Vankineni in January of 2005.” Similarly, in conjunction with the claim for rescission, Vankineni states: “WHEREFORE, Dr. Vankineni prays the Court will enter an order rescinding the Contract and requiring Santa Rosa ... to restore to Dr. Vank-ineni all consideration flowing to [it] under the Contract, along with the costs of this action and any other relief at law or equity to which Dr. Vankineni may be entitled.”

Finally, I note that a reversal should be based on arguments supported in law. See Rule 28, Ala. R.App. P. Vankineni’s arguments for reversal are not compelling. As acknowledged on page 11 of Vankineni’s brief, the contract states that it “shall be construed, applied, and enforced in accordance with the laws of the State of Florida.” However, all Vankineni’s arguments seek to apply Alabama rules of contract construction to the forum-selection clause, with no acknowledgment of Florida law.

In short, I am not convinced that Vanki-neni’s claim for rescission or his request for a declaratory judgment can be resolved without resort to, and enforcement of, contractual provisions — not only those governing the date for completion and delivery of the condominium unit, but also those governing the right to rescind the contract, and the remedies specified in the purchase contract in the event of rescission by Vankineni on the ground that Santa Rosa failed to perform its contractual obligations. Therefore, I view Vankineni’s complaint as falling within the confines of the outbound forum-selection clause.

I am not convinced that the trial court erred in determining that this is an action to enforce one or more provisions of the purchase contract, or that the trial court erred in enforcing the outbound forum-selection clause. Accordingly, I respectfully dissent.

      . The rescission claim was based upon Vanki-neni’s allegation that Santa Rosa had misled him “regarding the nature of the interest in the unit he was contracting to purchase, as well as the date on which said interest would be delivered.” It was not based upon any alleged contractual right of rescission.

      . Vankineni named Renasant Bank as a necessary party to his request for a declaratory judgment. Renasant Bank's involvement in financing Vankineni's purchase of the condominium unit is not relevant to any issue presented by this appeal, and it has not filed a brief.

      . Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) ("Under general Alabama rules of contract interpretation, the intent of the contracting parties is discerned from the whole of the contract. Where there is no indication that the terms of the contract are used in a special or technical sense, they will be given their ordinary, plain, and natural meaning. If the court determines that the terms are unambiguous (susceptible of only one reasonable meaning), then the court will presume that the parties intended what they stated and will enforce the contract as written.” (citations omitted)).

      . Fáctual averments stating that the condominium’unit was not completed by the contracted-for date are incorporated by reference in the portion of Vankineni’s complaint setting forth a claim for rescission. In full, the claim for rescission states:
      "21. Dr. Vankineni adopts and incorporates by reference the averments of the preceding paragraphs, as if fully set forth herein.
      "22. Dr. Vankineni was mis[led] by Santa Rosa ... regarding the nature of the interest in the Unit he was contracting to purchase, as well as the date on which said interest would be delivered.
      "23. Santa Rosa has failed and refused to deliver the Unit, or any interest therein, to Dr. Vankineni for over three (3) years, yet it has had and continues to have the benefit of Dr. Vankineni’s cash deposit during that time. Within the fifteen (15) days preceding the date of the filing of this Complaint, [Debra] Cianof, who acted as a broker in the transaction,] has advised Dr. Vankineni of further delays in the completion of the Unit.
      "24. Upon information and belief, if and when the Unit is completed, its value will be far less than the purchase price set forth in the Contract. Had the Unit been completed and delivered. as required by the Contract, Dr. Vankineni could have sold his interest therein at a profit or at a substantially higher price than the Unit will bring if and when completed. Worse still, even when the Unit is completed, the Development as a whole will remain substantially incomplete which, upon information and belief, will substantially limit the prospects for renting the Unit to third-parties. Forcing Dr. Vankineni to consummate the transaction contemplated by the Contract would require him to purchase the Unit at a greatly inflated price, and would inequitably force him to bear the burden of Santa Rosa's delay in completing the Unit.
      "25. Dr. Vankineni’s hands are clean and he is prepared to do equity.
      "26. On the basis of the foregoing, Dr. Vankineni hereby rescinds the Contract and is prepared to restore to Santa Rosa ... any and all interest in the Unit to which he is entitled, as well as any and all other consideration flowing to him pursuant to the Contract.
      "WHEREFORE, Dr. Vankineni prays the Court will enter an Order rescinding the Contract and requiring Santa Rosa and/or Fictitious Defendants A-C to restore to Dr. Vankineni all consideration flowing to them under the Contract, along with the costs of this action and any other relief at law or equity to which Dr. Vankineni may be entitled.”

      . As the majority points out, Vankineni alleges, among other factual allegations, that he was "misled" as to the date the unit would be finished. 57 So.3d at 762 n. 1. However, the only allegedly "misleading” statement as to the date of completion referenced in the complaint is the completion date stated in the purchase contract. See Rule 9(b), Ala. R. Civ. P. ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.”). In addition, I recognize, as the majority points out in note 1 of this Court's opinion, that Vankineni, a medical doctor, also alleges that he is entitled to rescission because he was orally "misled” regarding the nature of his interest in the unit; he says he believed that he was entering into a contract for an "ownership” interest in the condominium unit, but, since signing the written contract, he has discovered that the purchase contract conveys only a "leasehold” interest. In my view, these averments do not negate the fact that, with his claim for rescission, Vankineni seeks relief available "at law” as well as in equity.


author: PITTMAN, Judge.

text:
    CANON FINANCIAL SERVICES, INC. v. NATIONAL VOTING RIGHTS MUSEUM & INSTITUTE, INC.
    2080962.
    Court of Civil Appeals of Alabama.
    Sept. 10, 2010.

      Charles N. Parnell III and M. Lee Has-sell, Jr., of Parnell & Crum, P.A., Montgomery, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

Canon Financial Services, Inc. (“Canon”), appeals from an order of the Dallas Circuit Court (“the Alabama court”) granting a motion filed by the National Voting Rights Museum & Institute, Inc. (“NVRMI”), seeking relief from a judgment entered by the Alabama court in response to Canon’s registration of a foreign judgment entered in Canon’s favor by the Superior Court of New Jersey Law Division, -Burlington County (“the New Jersey court”), in an action that had been brought by Canon against NVRMI in that state. We reverse and remand with instructions.

In August 2007, Canon filed in the Alabama court a document labeled “Notice of Filing of Foreign Judgment” in which it sought to invoke provisions of the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), Ala.Code 1975, § 6-9-230 et seq. Attached to that filing was an affidavit of Canon’s litigation account manager in which she testified that in January 2007 Canon had obtained a judgment in the New Jersey court against “National Voting Rights Museum” for $43,522.92 plus costs; that the judgment was amended in May 2007 so as to name NVRMI as the proper defendant; and that the judgment was valid, enforceable, and unsatisfied. Exhibits to the affidavit filed in support of Canon’s notice included certified photocopies of both the pertinent January 2007 judgment, which reflects that it was entered as a default judgment, and the May 2007 amendment thereto. Canon’s notice also contained a certificate of service indicating that a copy of the notice had been mailed to the last known address for NVRMI as set forth in the litigation account manager’s affidavit. On August 21, 2007, the Alabama court entered a judgment in favor of Canon declaring that the New Jersey judgment would be deemed enforceable in Alabama.

In October 2007, NVRMI, pursuant to Rule 60(b)(4), Ala. R. Civ. P., filed a motion for relief from the Alabama court’s registration judgment, averring that NVRMI had not been “made aware” of the lawsuit in the New Jersey court or of that court’s judgment and that NVRMI had no familiarity of having obtained a copying machine from any of Canon’s affiliates. In support of its motion, NVRMI filed an affidavit given by its longtime registered agent for service of process, in which she testified that she had never been served with any papers as to the action in the New Jersey court and that she had not been served with process in the registration proceeding in the Alabama court. The parties then filed briefs as to their respective positions, with Canon asserting that the New Jersey court had had personal jurisdiction over NVRMI pursuant to the laws of that state and that that court’s judgment was entitled to full faith and credit in Alabama and NVRMI asserting that Canon had failed to demonstrate effective service upon one of its directors (a method that NVRMI admitted might be proper under New Jersey law). Neither Canon nor NVRMI submitted any further admissible evidence in support of their respective positions, although Canon did submit an unauthenticated copy of a document purporting to be an office-equipment lease entered into by the parties. The Alabama court granted NVRMI’s motion for relief from the registration judgment on June 3, 2009, opining that “service in the underlying action was not effective pursuant to the Alabama Rules of Civil Procedure” (emphasis added). Canon timely appealed to this court from that order based upon the limited amount in controversy; the appeal has been submitted solely on Canon’s brief because NVRMI has not favored this court with an appellate brief.

Our review is governed by the following principles:

“The review applicable to a Rule 60(b)(4) motion is de novo. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. The only question before us is whether the judgment is void. A judgment is void only if the court rendering it lacked jurisdiction over the subject matter or over the parties, or if it acted in a manner inconsistent with due process.
“The Constitution of the United States, Article IV, Section 1, requires that ‘full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.’ A judgment, therefore, entered by the court of another state having jurisdiction over the subject matter and persons is entitled to full faith and credit in Alabama courts.
“The validity and effect of a foreign judgment are determined by the law of the state in which it was rendered. If a judgment of a sister state is properly authenticated and filed with the circuit court, [as provided for in the UEFJA, Ala.Code 1975,] §§ 6-9-232, 6-9-233, a presumption arises that the couri rendering that judgment had jurisdiction to do so. Therefore, the party challenging the judgment has the burden of asserting lack of jurisdiction and, producing evidence to overcome the presumption.”

Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993) (emphasis added; citations omitted).

From the foregoing, it is readily apparent that the Alabama court’s views concerning the efficacy of service of process in the underlying action under Alabama laiv are immaterial to whether full faith and credit should be extended to the judgment of the New Jersey court. Rather, it is to the validity of the New Jersey court’s judgment under New Jersey law that Greene directs a reviewing court. Greene further stands for the proposition that NVRMI, as the party challenging the New Jersey court’s judgment, had the burden of demonstrating that that court lacked either subject-matter jurisdiction or personal jurisdiction; because NVRMI’s attack on the judgment impugned only that court’s personal jurisdiction, the single pertinent question in this case is whether NVRMI met its burden of proving that the New Jersey court’s judgment was not valid under that state’s law on that basis.

The record indicates that in 2006, when Canon initiated its action in the New Jersey court, that state’s rules of civil procedure provided that the “primary method” of obtaining in personam jurisdiction over a defendant corporation in a civil action was “by causing the summons and complaint to be personally served within” New Jersey on (1) “any officer, director, trustee or managing or general agent” of the corporation, (2) “any person authorized by appointment or by law to receive service of process on behalf of the corporation,” (3) “a person at the registered office of the corporation in charge thereof,” or (if service could not be effected upon those persons) (4) “a person at the principal place of business of the corporation in [New Jersey] in charge thereof’ or (5) “any employee of the corporation within [New Jersey] acting in the discharge of his or her duties” if the corporation had no New Jersey place of business. Rule 4:4-4(a), N.J.R. Civ. P. NVRMI appears not to have had any place of business or employees in New Jersey. However, New Jersey court rules also expressly provided that if it could be shown by affidavit “that despite diligent effort and inquiry personal service [could not] be made” consistent with Rule 4:4-4(a), in personam jurisdiction could be obtained' over a corporate defendant by two other means: (a) by “personal service in a state of the United States ... in the same manner as if service were made within [New Jersey]” or by “a public official having authority to serve civil process in the jurisdiction in which the service [was] made or by a person qualified to practice law in [New Jersey] or in the jurisdiction in which service [was] made”; or (b) by “mailing a copy of the summons and' complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to ... [the] corporation ... addressed to a registered agent for service, or to its principal place of business, or to its registered office.” Rules 4:4-4(b)(1)(A) and 4:4-4(b)(l)(C), N.J.R. Civ. P. Finally, New Jersey law at the time of the institution of Canon’s action provided that if service could not be affected by any of the other modes authorized by rule, any defendant could be served “as provided by court order.” Rule 4:4-4(b)(3).

The foregoing authority indicates that, under New Jersey law, service of process upon a foreign corporation such as NVRMI could, under the right set of factual and legal circumstances, be accomplished by a number of different, but equally effective, means, such as by personal delivery of the summons and .complaint in the action or by mailing those documents to either a “person authorized by appointment or by law to receive service of process on behalf of the corporation,” such as NVRMI’s registered agent who testified by affidavit, or to “any officer, director, trustee or managing or general agent” of NVRMI. However, the sole evidence adduced by NVRMI was the testimony in the agent’s affidavit that she had not “been served with any papers or process regarding” the action in the New Jersey court. That evidence falls far short of negating the possibilities that Canon properly served NVRMI with process by personally serving one of its directors (as Canon alleged in its trial-court brief but did not prove), by serving NVRMI by certified and regular mail addressed to NVRMI’s “regular place of business” in Selma, or by effecting service in some other fashion authorized by the New Jersey court. As Greene notes, under full-faith-and-credit principles, it was NVRMI’s burden in the Alabama court to prove the absence of jurisdiction in the New Jersey court, not Canon’s burden to prove the existence of that jurisdiction, and NVRMI failed to carry its burden by negating each of the potential bases by which the in personam jurisdiction of the New Jersey court could lawfully have attached.

Because Canon demonstrated that it had a valid and unsatisfied foreign judgment against NVRMI and that it had properly notified NVRMI of the registration of that judgment as required under the UEFJA, the Alabama court properly domesticated the judgment of the New Jersey court. See generally Ala.Code 1975, § 6-9-238. NVRMI, the judgment debtor, failed to adduce sufficient evidence to overcome the prevailing presumption that the judgment of the New Jersey court was validly entered, and the Alabama court erred in entering its June 3, 2009, order granting NVRMI’s Rule 60(b)(4) motion. That order is reversed, and the cause is remanded for the entry of a order reinstating the August 21, 2007, registration judgment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . As we held in Nix v. Cassidy, 899 So.2d 998, 999-1000 (Ala.Civ.App.2004), such an order is final, and an appeal may properly be taken therefrom.

      . To the extent that Greene held that a motion filed pursuant to Rule 60(b)(4) must be filed within a reasonable time, it has been abrogated by Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638 (Ala.2003); however,
        Greene otherwise remains binding precedent upon this court.

      . We note that Canon has attached, as an exhibit to its brief on appeal, an "exhibit” that purports to be an "affidavit of service” executed by a "sheriff's officer” in which it is asserted that the signing officer had personally served an agent or a person in charge of the office of the "National Voting Rights Museum.” As Canon freely admits in its appellate brief, that document was not submitted to the Alabama court for its consideration in connection with its decisions to allow the New Jersey court’s judgment to be registered or to grant NVRMI’s motion for relief. We regret the need to again remind the Bar that an appellate record cannot be supplemented or enlarged by the mere attachment of documents to an appellant's brief, see Curvin v. Curvin, 6 So.3d 1165, 1173 (Ala.Civ.App.2008), and we expressly disavow any reliance upon Canon's "exhibit” in reaching our decision today.


text:
    D.K.M. v. R.M., Jr.
    2090635.
    Court of Civil Appeals of Alabama.
    Sept. 17, 2010.

      Joan-Marie Dean, Huntsville, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

D.K.M. (“the mother”) seeks appellate review of an order entered by the Madison Juvenile Court in a paternity action on March 23, 2010, 54 days after the January 28, 2010, filing of a postjudgment motion by R.M., Jr. (“the father”). We dismiss the appeal with instructions.

In June 2009, the mother filed a civil action in the juvenile court naming the father as a defendant and seeking a determination of paternity as to a child born to the mother in November 2008; the mother also sought sole custody of the child and an award of child support. The father answered the complaint, sought dismissal of the action, and asserted a claim for attorney fees and expenses, averring that a similar action was pending in Georgia. The juvenile court, after conferring with the pertinent Georgia court as provided for in Ala.Code 1975, § 30-3A-317, a part of the Uniform Interstate Family Support Act, Ala.Code 1975, § 30-3A-101 et seq., determined that it had jurisdiction, denied the motion to dismiss, determined the father’s paternity of the child, and reserved custody and support issues for a later hearing. After that hearing, the father filed a motion seeking a finding of contempt against the mother for allegedly having failed to allow the father pendente lite visitation with the child.

On January 28, 2010, after having solicited a form judgment from counsel for the mother, the juvenile court entered a judgment determining, among other things, the father’s paternity, the parties’ joint legal custody of the child, the mother’s sole physical custody of the child, the father’s visitation rights, and the father’s prospective and retroactive child-support obligations; the court denied all other claims asserted by the parties. That judgment provided, in pertinent part, that the father was initially to have visitation “at the Family Services Center in Huntsville” on two Sundays per month and that, after a three-month minimum transition period of consecutive visits at that location, he would gain expanded visitation rights.

On the same day that the juvenile court’s judgment was entered, the father, apparently acting upon the language contained in the proposed form judgment, filed a motion labeled “Motion to Vacate, Alter or Amend Order” in which he requested that the juvenile court state in its judgment that (1) initial visitations by the father could take place at a site other than the Family Services Center should that facility not be available on a scheduled visitation day and (2) that the father’s rights to expanded visitation would not be affected by any acts on the part of the mother to interfere with his initial visitation. That motion cited Rule 59(e), Ala. R. Civ. P., which pertains to motions to alter, amend, or vacate a judgment, as authority for its filing. Although the father’s motion also cited subsections (3) and (6) of Rule 60(b), Ala. R. Civ. P., which pertain to relief from a judgment based, respectively, upon grounds of fraud, misrepresentation, or other, misconduct of an adverse party or, alternatively, for “any other reason” than those specified in other subsections of Rule 60(b), the motion was filed within the time limitation for filing a postjudgment motion to alter, amend, or vacate a judgment under Rule 59(e), Ala. R. Civ. P., as applicable in juvenile court (i.e., 14 days, see Rule 1(B), Ala. R. Juv. P.) and expressly “move[d]” the juvenile court “to vacate, alter or amend” the judgment in a manner consistent with Rule 59(e). Thus, the motion is properly deemed one under Rule 59(e). See, e.g., Ex parte Johnson, 715 So.2d 783 (Ala.1998); L.M. v. Shelby County Dep’t of Human Res., 999 So.2d 505, 506 (Ala.Civ.App.2008); Dubose v. Dubose, 964 So.2d 42, 45 (Ala.Civ.App.2007); and Simmons v. Simmons, 390 So.2d 622, 623-24 (Ala.Civ.App.1980).

On January 29, 2010, the juvenile court set the father’s “Motion to Vacate, Alter or Amend Order” for a hearing to be held on March 16, 2010. However, under Rule 1(B) Ala. R. Juv. P., postjudgment motions in juvenile cases “shall not remain pending for more than 14 days”; thus, “[a] postjudgment motion is deemed denied if not ruled on within 14 days of filing.” See also L.M., 999 So.2d at 506. Pursuant to Rule 1(B), the father’s postjudgment motion was denied on February 11, 2010. Although the father attempted to amend his motion on February 22, 2010, that purported amendment, having been filed after the motion it sought to amend had been denied, was of no effect. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell 430 So.2d 426, 428 (Ala.1983). Despite the operation of Rule 1(B), however, the juvenile court entered an order on March 23, 2010, purporting to amend its previous judgment so as to allow the father “make-up” visitation should the Family Services Center be unavailable for a scheduled visitation.

The mother timely appealed from the juvenile court’s March 23, 2010, order. See Rule 4(a), Ala. R.App. P., and Rule 28(C), Ala. R. Juv. P. The mother contends, in her brief on appeal, that the March 23, 2010, order was void. In light of Rule 1(B), Ala. R. Juv. P., we agree with the mother that the juvenile court lost any jurisdiction it might have had to alter, amend, or vacate its judgment in response to the father’s postjudgment motion on February 11, 2010, rendering its March 23, 2010, order void. See Colburn v. Colburn, 510 So.2d 266, 267 (Ala.Civ.App.1987); S.D.C. v. N.L., 864 So.2d 1089, 1090-91 (Ala.Civ.App.2002). On the authority of Colburn and S.D.C, we dismiss the mother's appeal as having been taken from a void order, and we direct the juvenile court to vacate its order of March 23, 2010.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Whether the judgment was entered before or after the father filed his motion is unclear from the electronic case-action-summary sheet, which shows two potential judgment '‘entry” times on January 28, 2010, but the actual sequence is immaterial; under Alabama law, a "postjudgment” motion submitted to a court before the entry of a judgment in a civil action will be deemed filed as of the subsequent entry of that judgment. See New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004).